HomeMy WebLinkAbout06-1759MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006- 1 J ) --I CIVIL TERM
CIVIL ACTION-EQUITY
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 an attorney and filing in writing with
the court, your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so, the case may proceed without you and a judgment may be entered against you
by the court without further notice for any money claimed in the complaint or for any other claim
or relief requested by the plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TF.LF,PHONE THE
OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMA 110N
ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
MCCUEN & ASSOCIATES, d1b1a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006- f7>'4 CIVIL TERM
CIVIL ACTION-EQUITY
COMPLAINT
NOW, comes Plaintiff, McCuen & Associates dfbfa First Choice Rehabilitation
Specialists ("First Choice"), by and through its attorneys O'BRIEN, BARIC & SCHERER. and
files the within Complaint and, in support thereof, sets forth the following:
Plaintiff, McCuen & Associates is a Pennsylvania corporation with its principal
place of business located at 550 North 12th Street, Suite 120, Lemoyne, Cumberland County,
Pennsylvania 17043.
2. Plaintiff does business as First Choice Rehabilitation Specialists.
3. Defendant, Brian D. Cardin, is an adult individual with a residence address of 104
Wertz Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055.
4. Defendant, Steve Miller, is an adult individual with a residence address of 839
Ohio Avenue, Lemoyne, Cumberland County, Pennsylvania 17043.
1
5. Defendant, Cardin & Miller Physical Therapy, P.C., is a Pennsylvania
professional corporation with a registered address of Post Office Box 11960, 210 Walnut Street,
Harrisburg, Dauphin County, Pennsylvania 17108.
6. Defendant, Dutrey's Shoes Add, Inc. is a Pennsylvania corporation with a
registered address at 28 North Hanover Street, Carlisle, Cumberland County.. Pennsylvania
17013. The principal place of business of Dutrey's Shoes Add, Inc. recently became 290 Fast
Pomfret Street, Carlisle. The previous principal place of business was 28 North Hanover Street.
Carlisle.
First Choice provides physical therapy and other services to the public.
On or about May 29, 2002, Cardin was hired by First Choice as a licensed
physical therapist.
In connection with his hiring, Cardin executed a Non-Compete Clause, a true and
correct copy of which is attached hereto as Exhibit "A" and is incorporated by reference.
10. On or about November 26, 2001, Miller was hired by First Choice as a licensed
physical therapist.
11. In 2003, Cardin approached Gary Karkuff of First Choice and Cardin expressed
his desire to obtain training in the field ofpedorthics. Pedorthics is described generally as being.
the manufacture, modification and fit of footwear, including foot orthoses, to alleviate foot
problems caused by disease, overuse and/or congenital defect or injury.
2
12. First Choice agreed to Cardin's request and paid Cardin's salary while he was
receiving the training and education and living expenses at Temple University for training in
pedorthics which costs totaled $4,207.72. Cardin obtained the designation of certified pedorthist
through this training.
13. First Choice has at all relevant times provided pedorthic services to the public.
14. In 2003, First Choice presented Cardin with a Memorandum of Understanding
which included confidentiality and non-competition provisions. Cardin executed this
Memorandum of Understanding on September 3, 2003, a true and correct copy of which is
attached hereto as Exhibit "B" and is incorporated by reference.
15. In 2003, First Choice presented Miller with a Memorandum of understanding
which included confidentiality and non-competition provisions. Miller executed this
Memorandum of Understanding on September 3, 2003, a true and correct copy of which is
attached hereto as Exhibit "C" and is incorporated by reference.
16. In the fall of 2003, First Choice learned that a pedorthist at Dutrey's Shoes would
be retiring in December of 2003.
17. Dutrey's Shoes is a shoe store which was located at 28 North Hanover Street in
Carlisle and is owned and operated by Dutrey's Shoes Add, Inc.
18. First Choice asked Cardin to contact John Dutrey of Dutrey's Shoes to determine
whether First Choice could replace the retiring pedorthist. Cardin made several attempts to
contact John Dutrey without obtaining any results.
19, Ken Lennington of First Choice knew John Dutrey and offered to contact him to
determine whether a business relationship may be established between First Choice and Dutrcy's
Shoes. Lennington spoke with John Dutrey and Dutrey called Cardin to meet and discuss a
business relationship.
20. Thereafter. John Dutrey agreed to a two (2) month trial period to determine
whether the business arrangement would work.
21. Cardin began working at Dutrey's Shoes two (2) afternoons per week and was
also available for appointments. First Choice continued to pay Cardin his regular salary with no
reduction in his salary for the time Cardin spent at Dutrey's Shoes. Moreover, First Choice
considered hours of work by Cardin spent at Dutrey's as part of his work week hours.
22. At the request of First Choice, Cardin prepared and submitted to the company a
Business Plan for the work and services to be provided at Dutrey's Shoes. A true and correct
copy of this Business Plan is attached hereto as Exhibit "D" and is incorporated by reference.
23. Throughout the period of time Cardin was providing services at the Dutrey's Shoe
location, Cardin would receive appointments through either calls being placed to Dutrey's Shoes
or through First Choice. Other physical therapists at First Choice referred patients needing
pedorthic services to Cardin at Dutrey's Shoes. Further, Cardin routinely referred individuals he
was seeing at Dutrey's Shoes for physical therapy at First Choice.
24. In the Spring of 2004, Cardin requested that a separate partnership be established
for the work he was doing in pedorthics at Dutrey's Shoes.
25. First Choice declined to create a new business entity for the pedorthics work but
requested Cardin place any money received for this work into a bank account for a real estate
partnership known as the Halifax Real Estate Partnership with the understanding that a
determination as to how these funds would be distributed to be made at a later date.
26. In October, 2004, Ken Lennington of First Choice spoke with John Dutrey and
reminded Dutrey that Cardin was an employee of First Choice and Dutrey's business dealings
and agreement were with First Choice and not Cardin as an individual.
27. Cardin had control of and handled the bank account for the Halifax Real Estate
Partnership from the Spring of 2004 to the date of his resignation from First Choice, February 9,
2006.
28. In late 2004, early 2005, First Choice built a new facility located at 3 Baden
Powell Lane, Suite 3, Mechanicsburg, Cumberland County, Pennsylvania. In this new facility.
First Choice built out a space for Cardin to provide pedorthic services. Additionally, in the fall
of 2005, First Choice paid for the training and certification of another employee, Mark
MacDonald, to become a certified pedorthist.
29. Cardin continued to provide pedorthic services while employed by First Choice
through February 15, 2006 at the Dutrey's Shoes location.
30. On or about January 11. 2006, Cardin and Miller informed First Choice they were
resigning from First Choice. Cardin's effective date would be February 9, 2006 and Miller's
effective date would be February 15, 2006.
II 1. Subsequent to receiving the notices of resignation by Cardin and Miller, First
Choice contacted John Dutrey and informed him that Mark MacDonald of First Choice would he
taking over the responsibilities for pedorthic services at Dutrey's Shoes.
32. John Dutrey contacted First Choice and informed the company that he had made
other arrangements for the providing of pedorthic services.
33. Unknown to First Choice at the time of receiving the resignations of Cardin and
Miller, Cardin, Miller and Dutrey had discussed and agreed to open a "partnership" which
a) was to provided pedorthic services at a new business to be located at 290
East Pomfret Street in Carlisle;
b) would terminate the pedorthic services as provided by First Choice
c) and would establish a physical therapy operation in the same location.
34. The building at 290 East Pomfret Street, Carlisle, is less than five (5) miles from
28 North Hanover Street, Carlisle.
35. First Choice believes, and therefore avers, that prior to January 11, 2006, John
Dutrey, on behalf of Dutrey's Shoes Add, Inc. contacted Cardin and Miller for the purpose of
soliciting them to wrongfully accept employment and/or establish a competing business offering
pedorthic services and physical therapy.
36. First Choice believes, and therefore avers, that Cardin and Miller, while in the
employ of First Choice and prior to receipt of resignations from Cardin and Miller, did set about
upon a course to create and establish a physical therapy clinic and facilities to provide pedorthic
services to the public. The actions of Cardin and Miller in that regard included, but were not
limited to, the following:
a) searching for a location for the business;
b) informing patients they were seeing as employees of First Choice that they
would be leaving First Choice and establishing their own competing practice with the intend of
inducing those patients to leave First Choice;
C) preparing documents to establish a competing business entity to he known
as Cardin & Miller Physical Therapy, P.C.;
d) contacting referral sources for First Choice requesting those referral
sources to begin referring patients to their practice instead of to First Choice;
e) contacting and requesting referral sources for First Choice to become
associated with Cardin & Miller Physical Therapy, P.C.;
f) and other actions incident to establishing a new competing business.
37. Subsequent to the effective date of their resignations, Cardin and Miller mailed
letters to all insurers with whom First Choice has a business relationship stating that Cardin and
Miller were no longer employed by First Choice.
38. The purpose and effect of this letter was to interfere with the business relationship
between First Choice and the health insurers contacted. There was no justification for the
sending of this correspondence by Cardin and Miller.
39. Upon information and belief, Cardin has failed and refused to return money
received for pedorthic services provided while in the employ of First Choice at the Dutrey's
Shoes location into the Halifax Real Estate Partnership account.
40. Upon information and belief, Cardin and Dutrey's Shoes Add, Inc. have retained
money paid by patients for the services provided by Cardin while in the employ of First Choice
for pedorthic services provided.
COUNT I- BREACH OF CONTRACT
FIRST CHOICE v. BRIAN CARDIN and STEVE MILLER
41. Plaintiff incorporates by reference paragraphs one through forty as though set
forth at length.
42. The actions of Cardin in establishing a competing physical therapy practice and
entering into an agreement with Dutrey's Shoes to provide pedorthic services to the exclusion of
First Choice are a breach of the Non-Compete Clause and the Memorandum of Understanding.
43. As a direct and proximate result of Cardin's conduct, First Choice has suffered
injury and losses including, but not limited to, the loss of existing and potential customers,
diminution in the value of First Choice's business, injury to its goodwill and loss of income.
44. The actions of Miller in establishing a competing physical therapy practice and
entering into an agreement with Dutrey's Shoes to provide pedorthic services to the exclusion of
First Choice are a breach of the Memorandum of Understanding.
45. As a direct and proximate result of Miller's conduct, First Choice has suftered
injury and losses including, but not limited to, the loss of existing and potential customers,
diminution in the value of First Choice's business, injury to its goodwill and loss of income.
46. Upon information and belief, Cardin and Miller, unless enjoined and restrained,
will continue to violate the Non-Compete Clause and the Memorandum of Understanding
through the operation of that business known as Cardin & Miller Physical Therapy, P.C.
WHEREFORE, Plaintiff requests that judgment be entered in its favor and against
Defendants Cardin and Miller as follows:
a) issuing an injunction permanently restraining Cardin and Miller from
operating a physical therapy practice within five (5) miles of 28 North Hanover Street, Carlisle,
Pennsylvania for a period of one (1) year from February 15, 2006,
b) directing Cardin and Miller to pay compensatory damages, costs and
expenses to Plaintiff in excess of $35,000.00, and in an amount in excess of the limits requiring
compulsory arbitration;
C) an accounting of all money received by Cardin for pedorthic services he
provided while in the employ of Plaintiff; and
d) awarding Plaintiff such other and further relief as this Court may deem just
and proper.
COUNT 11-BREACH OF PRE-RESIGNATION AND POST-RESIGNATION
COMMON LAW AND FIDUCIARY DUTIES
FIRST CHOICE v. BRIAN CARDIN and STEVE MILLER
47. Plaintiff incorporates by reference paragraphs one through forty-six as though set
forth at length.
48. While employed by First Choice, Cardin and Miller were in positions of trust and
confidence, and as such, owed duties of loyalty, good faith and fair dealings to First Choice
during and afer their employment by First Choice.
49. By engaging in the conduct described above, Cardin and Miller breached their
pre-resignation and post-resignation and common law fiduciary duties owed to First Choice.
50. The conduct of Cardin and Miller was willful, intentional and unprivileged and
has caused and is causing monetary damages to First Choice.
51. As a direct and proximate result of the conduct of Cardin and Miller, First Choice
has suffered injury and losses including, but not limited to, the loss of existing and potential
customers and patients, diminution in the value of First Choice's business and injury to its
goodwill.
WHEREFORE, First Choice requests that judgment be entered in its favor and against
Defendants Cardin and Miller as follows:
a) compensatory damages in an amount in excess of $35,000.00, and in an
amount in excess of the limits requiring compulsory arbitration;
b) award punitive damages as a result of the willful and intentional
misconduct of Defendants Miller and Cardin;
C) award the costs of this action; and
d) such other relief as the Court may deem just and appropriate.
10
COUNT-HI INTENTIONAL INTERFERENCE WITH PLAINTIFF'S
EXISTING CONTRACTUAL AND BUSINESS RELATIONSHIPS
WITH ITS EMPLOYEES AND CUSTOMERS
FIRST CHOICE v. BRIAN CARDIN, STEVE MILLER,
CARDIN & MILLER PHYSICAL THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
52. Plaintiff incorporates by reference paragraphs one through fifty-one as though set
forth at length.
53. First Choice has and continues to offer pedorthic and physical therapy services to
an identifiable patient base.
54. Dutrey's Shoes Add, Inc. has improperly recruited and retained Defendants
Cardin and Miller in violation of the Non-Competition Clause and Memorandum of
Understanding agreements.
55. Defendants Cardin and Miller have aided and abetted in the conduct described at
paragraph 54 and as set forth hereinabove.
56. First Choice had a business relationship/agreement with Dutrey's Shoes Add. Inc.
whereby First Choice provided pedorthic services at 28 North Hanover Street in Carlisle,
Pennsylvania. These services also resulted in the referral of customers for physical therapy
services at First Choice.
57. Cardin and Miller, individually, and Cardin & Miller Physical Therapy, P.C.
improperly interfered with this business relationship and otherwise violated the terms of the Non-
Competition Clause and the Memorandum of Understanding agreements through their actions as
described hereinabove.
11
58. Defendant, Dutrey's Shoes Add, Inc. has aided and abetted in the conduct
described at paragraph 57 and as set forth hereinabove.
59. The conduct of Cardin, Miller, Cardin & Miller Physical Therapy, P.C. and
Dutrey's Shoes Add, Inc. has been willful, intentional and unprivileged and has caused and is
causing monetary damages to First Choice.
WHEREFORE, Plaintiff requests that judgment be entered in its favor and against
Cardin, Miller, Cardin & Miller Physical Therapy, P.C. and Dutrey's Shoes Add, Inc. as follows:
a) compensatory damages in an amount in excess of $35,000.00, and in an
amount in excess of the limits requiring compulsory arbitration;
b) damages for actual harm to the business of First Choice;
C) punitive damages as a result of the willful and intentional misconduct of
the Defendants;
d) an accounting for all money received by Cardin and/or Dutrey's Shoes
Add, Inc. for pedorthic services provided by Cardin while in the employ of Plaintiff; and
e) such other relief as this Court deems just and proper.
COUNT IV-CIVIL CONSPIRACY
FIRST CHOICE v. BRIAN CARDIN, STEVE MILLER and
DUTREY'S SHOES ADD, INC.
60. Plaintiff incorporates by reference paragraphs one through fifty-nine as though set
forth at length.
12
61. The Defendants schemed and conspired to intentionally interfere through
improper means with the Plaintiff's existing contractual and business relationships with its
employees and customers. These acts included breaches of contractual duties, breaches of
common law and fiduciary duties of loyalty, good faith and fair dealing.
62. The Defendants' conduct was knowing, willful, intentional and unprivileged and
has caused and will continue to cause monetary damages to Plaintiff.
63. The Defendants engaged in all of these activities for the purpose of damaging the
customer base, market value and goodwill of Plaintiff.
WHEREFORE, Plaintiff requests that judgment be entered in its favor and against Brian
Cardin, Steve Miller and Dutrey's Shoes Add, Inc. as follows:
a) compensatory damages in an amount in excess of $35,000.00. and in
excess of the limits requiring compulsory arbitration;
b) punitive damages as a result of the willful and intentional misconduct:
C) costs of this action; and
d) such other and further relief as this Court deems just and proper.
Respectfully submitted
ER
RE
a:BARI C & SCH E
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dir/litigationlf i rstehoice/ca rdinmiller/complaint3. pld
VERIFICATION
The statements in the foregoing Complaint are based upon information which has been
assembled by my attorney in this litigation. The language of the statements is not my own. I
have read the statements; and to the extent that they are based upon information which I have
given to my counsel, they are true and correct to the best of my knowledge, information and
belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §
4904 relating to unsworn falsifications to authorities.
r ? ,f
DATE: Karkuff, President
McCucn & Associates
NON-COMPETE CLAUSE:
Employee agrees not to enter into agreements with facilities and agencies
presently contracted by McCuen & Associates during the term of this
contract and for one (1) year following the termination of this contract,
d?
Date
=rz-1LW a .
Date
EXHIBIT "A"
First Choice
Reh ¶ I illitation
r %Speciallists
eowmvrsdale
5 Batty 2. S. 203
Medmidcsburg, PA 17055
591-1807 • Fm 591-1809
MEMORANDUM OF UNDERSTANDING
Camp HM
240 G=dvlew Ave, 5. 101
Camp HID. PA 17011
You occupy a trusted position at First Choice Rehabilitation Specialists.
737-9818 • Fax: 737-2815 You have access to confidential and proprietary information, such as trade
Dover secrets, cost and price data, internal corporate planning, and methods of
3377 FOX Bon gd operation, know how, practices, procedures, and techniques. -
Dover, PA 17315
779-0252 • Fax 779-0512
Accordingly, on behalf of First Choice Rehabilitation Specialist, the board
Ears and you as an employee hereby acknowledge certain basic agreements,
1790 oW Trag Bd., sum F which have always existed, but which have not always have been stated
E=S. PA 17319
expressly in writing.
938-0584 • Fax: 932-1062
Have First Choice Rehabilitation Specialists has invested a substantial amount of
36 S. Blver Bd, time and money in the development and operation of its rehabilitation and
HaMx. PA 17032 consulting business, as well as in its practices and procedures. In, addition,
896-8898 • Fax: 896-8785
you are aware that the discussions, writings, and other communications
Harrisburg among partners, managers and employees of First Choice Rehabilitation
899 s. Arbgron An. Specialists concerning its present business and future endeavors contain
HWL bmg, PA 17109 confidential and proprietary information that is extremely valuable to FCRS
657-8240 • Fax 657-6267 and not generally know to the public, the business community or other
Hummelslown rehabilitation companies.
8170 Adams De. S. 101
Hu 011Wwn, PA 17036 Therefore based on all the foregoing, and in consideration of $1.00 receipt
566-8006 • Fax 5664206 by employee, which is acknowledged by employee's signature, you hereby
Lebanon acknowledge that as part of your employment relationship with First Choice
912 RuSsefi Drive Rehabilitation Specialists you will not disclose any of the information
Lebanon. PA 17042 identified in this memorandum or any proprietary or confidential
274-2298 • Pax: 274.2398 information which became known to you as a result of your employment
Li4eswa with First Choice Rehabilitation Specialists.
2200 Dover 88
Harrisburg, PA 17112 Furthermore, during the period of your employment and for a period of one
920-5002 • Fax 920-5224 (1) year thereafter, you hereby acknowledge the existing understanding that
M
i
h
b you will not be employed by a company that, during your First Choice
ec
urg
an
a
I1 Flowers Dr. Rehabilitation Specialists employment period, has or has had a contractual
Mechardcsburg, PA 17050 relationship with FCRS. You also agree that you will not have direct or
790-5404 • Fax: 790-506 indirect ownership of, be employed by, or be a partner in any business,
which competes directly, or indirectly with FCRS for a period of one (1)
Newport
32 W.Sho=t Rd. year within the aerial radius of five (5) miles of any office of FCRS.
Newport PA 17074
567-9954 • Fax 567.9915 EXHIBIT " B "
7
Page 2
You hereby acknowledge that First Choice Rehabilitation Specialists shall
be entitled to enforce the provisions of this Memorandum by any legal
means. Such means shall include that right to enjoin you by legal process
from violating the provisions hereof.
Finally upon completion of Ar full time service as clinic director,
beginning onCb// /c3 during which period the average clinic
profit, as deter?miTned by First Choice Rehabilitation Specialists regular
accounting procedures, equals or exceeds 20% profit for the
t?lAr, ?S' prior to the offer. You will be offered the opportunity to
acquire ownership in First Choice Rehabilitation Specialists, subject to a
buy-in plan approved by the Board of FCRS.
I have read the foregoing statements, discussed and considered it thoroughly
and fully and understand its contents. I acknowledge my obligation not to
compete with First Choice Rehabilitation Specialists (or any related entity)
and my duty to maintain the confidentiality of the above information.
Further, I understand that my agreements in this regard can be enforced
legally by injunction.
Date: ?/0?3
A
Employee name:
Employee signature:
Employer:
Cph®Hce1
billH>Eation
ecialisis
Bowmwudale
5 YAM CL. S. 203
Med"k*n PA 17055
591-1507 • Fan 591.11109
MEMORANDUM OF UNDERSTANDING
Camp HM
240 Gmndvlew Ave., 1101
Camp
PA 17011
Hfa.
7
7
•
7
7
2
0 You occupy a trusted position at First Choice Rehabilitation Specialists FCRS
PY ( )•
61
8
Fax:
3
-9518
3
-
8 You have access to confidential and proprietary information, such as trade secrets
ova ,
cost and price data, internal corporate planning, and methods of operation, know
3377 FM Rm Rd how, practices, procedures, and techniques. --
Dover, PA 17315
779-0252 • Fax: 779-0512
Accordingly, on behalf of First Choice Rehabilitation Specialist, the board and you
EWS as an employee hereby acknowledge certain basic agreements, which exist.
1790 Old 9aR U., SWR F
EWS, PA 17319 First Choice Rehabilitation Specialists has invested a substantial amount of time
938-0584 Fax: 9324082
and money in the development and operation of its rehabilitation and consulting
Hapax business, as well as in its practices and procedures. In addition, you are aware that
36 S. RM Rd, the discussions, writings, and other communications among partners
managers and
Halifax. PA 17032 ,
employees of FCRS concerning its present business and future endeavors contain
596-8898 • Fan SW8785 confidential and proprietary information that is extremely valuable to FCRS and
Haaltbwg not generally know to the public, the business community or other rehabilitation
899 S. Arlington Ave' companies.
Haftl)W . PA 17109
657-8240 • Fan 657-6267 Therefore based on all the foregoing, and in consideration of $1.00 receipt by
HwmneHtmvn employee, which is acknowledged by employee's signature, you hereby
8170 Ada Dr., s.101 acknowledge that as part of your employment relationship with FCRS, you will not
Htnnme1e . PA 17036 disclose any of the information identified in this memorandum or any proprietary
566-8006 • Pax: 566-8206 or confidential information which became known to you as a result of your
Lebanon employment with FCRS.
912 RUSSa Dtive
Lebanon, PA 17042 during the period of your employment and for a period of one (1) year
Furthermore
214-2298 • Fax: 274-2398 ,
thereafter, you hereby acknowledge the existing understanding that you will not be
Linglemt employed by a company that, during your FCRS employment period, has or has
2200 Davm ed. had a contractual relationship with FCRS. You also agree that you will not have
Haalsbwg, PA 17112 direct or indirect ownership of, be employed by, or be a partner in any business,
920-5002 • Fan 920-5224 which competes directly, or indirectly with FCRS for a period of one (1) year
Meehanigbwg within the aerial radius of five (5) miles of any office of FCRS. The
I1 Flo $ Ix. aforementioned provisions in this paragraph shall not apply to your employment as
MedMIc bwg, PA 17050 a physical therapist at an acute care facility, long-term care facility, or home health
790-5404 • Fan 790-%W service upon termination of employment with FCRS, regardless of the reason for
Newport termination.
32 W. Shortcut Rd.
Newport, PA 17074
567-9954 • Pan 567-9975
EXHIBIT "C"
Page 2
You hereby acknowledge that First Choice Rehabilitation Specialists shall be
entitled to enforce the provisions of this Memorandum by any legal means. Such
means shall include that right to enjoin you by legal process from violating the
provisions hereof.
Upon completion of -?yeur-.r full-time service as clinic director
during which period the average clinic profit as determined by FCRS regular
accounting procedures equals or exceeds 20% per year, you shall be offered
partnership/ownership in FCRS, subject to a buy-in plan approved by the Board of
FCRS. If yo V are not offered partnership by your three-year anniversary date
(which is 11 q the non-compete clause of this
Memorandum o Understanding will be null and void. Upon the offer of
partnership on , you may delay the partnership buy-in to a
later date with the offer of partnership buy-in at the same price for a 12 month
period. After that time, the offer of partnership buy-in shall remain in place, at a
price to be recalculated by FCRS, including an examination of its accounting
records, subject to a non-disclosure agreement signed by you. In the event
partnership is offered on it45-/py , and you decline, then this
Memorandum of Understandirg remains in effect. Furthermore, if FCRS is sold to
any other company, the employee non-compete clause is null and void, and not
enforceable by law.
I have read the foregoing statements, discussed and considered it thoroughly and
fully and understand its contents. I acknowledge my obligation not to compete
with FCRS (or any related entity) and my duty to maintain the confidentiality of the
above information. Further, I understand that my agreements in this regard can be
enforced legally by injunction.
Date: 9/ } A.3
_/
Employee i
Employee
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MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
v
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
ANSWER TO COMPLAINT and NEW MATTER
AND NOW, comes Defendants, Brian D. Cardin, Steve Miller, and Cardin & Miller
Physical Therapy, P.C., by and through their attorneys Keefer Wood Allen & Rahal, LLP, and
files the within Answer to Complaint and New Matter in the above matter, averring as follows:
I. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied as stated. It is admitted Defendant Cardin was provided with a document
similar to that attached as Plaintiff's Exhibit "A." Answering Defendant is unsure whether the
document had the words "non-compete clause" at the top thereof. It is admitted Cardin signed
the document provided.
9. Admitted.
10. Admitted.
11. Denied as stated. First Choice allocated, for each physical therapist, money out of
the First Choice budget for therapists to pursue for continuing education. In 2003, Cardin
advised Karkuff that he wished to take a course to become a certified pedorthist.
12. Denied as stated. Cardin's request regarding the course to become a certified
pedorthist was to borrow against future allotments for his continuing education.
B. Denied. It is denied that First Choice has at all relevant times provided pedorthic
services to the public.
14. Denied as stated. It is admitted in 2003 Cardin executed a Memorandum of
Understanding, Plaintiff's Exhibit "B." The document speaks for itself.
15. Denied as stated, It is admitted in 2003 Miller executed a Memorandum of
Understanding, Plaintiff's Exhibit "C." The document speaks for itself.
16. Denied. In the fall of 2003, Brian Cardin, then an employee of First Choice,
learned that a pedorthist at Dutrey's Shoes would be retiring in December of 2003.
17. Admitted.
2
L8_ Denied. It is denied that First Choice asked Cardin to contact John Dutrey of
Dutrey's Shoes to determine whether First Choice could replace the retiring pedorthist. Cardin
made attempts to contact John Dutrey on behalf of himself and not on behalf of First Choice.
19. Denied as stated. It is admitted that Ken Lennington knew John Dutrey and
offered to contact him. It is denied that Lennington contacted Dutrey to determine whether a
business relationship may be established between First Choice and Dutrey's Shoes. It is further
denied that Dutrey called Cardin to meet and discuss a business relationship between First
Choice and Dutrey's Shoes.
20. Denied. It is denied that John Dutrey agreed to a two-month trial to determine
whether the business arrangement between First Choice and Dutrey's Shoes would work.
21. Denied as stated, It is admitted that Cardin began working at Dutrey's Shoes two
afternoons per week. These hours, however, did not reduce the amount of time that Cardin spent
at First Choice facilities as a First Choice employee. The hours spent by Cardin at Dutrey's
Shoes were as an independent contractor and not as a First Choice employee. It is denied that
First Choice considered hours of work by Cardin at Dutrey's Shoes as part of Cardin's work
week hours as Cardin's status as an independent contractor at Dutrey's Shoes was made clear to
First Choice when Cardin began in the independent contractor duties.
22. Denied. It is denied that Cardin prepared and submitted to First Choice a business
plan for the work and services to be provided at Dutrey's Shoes.
23. Denied. Cardin did not receive appointments through calls being placed to First
Choice. In response to the portion of the allegation concerning patients referred for pedorthic
services to Cardin at Dutrey's Shoes by First Choice employees, after reasonable investigation,
answering defendant is without knowledge or information sufficient to form a belief as to the
truth thereof and proof is demanded.
24. Denied. It is denied that Cardin requested a separate business partnership be
established for the pedorthics work he was doing at Dutrey's Shoes.
25. Denied. Cardin never requested a new business entity be created. It is further
denied there was an understanding that a determination would be made in the future as to how
funds earned by Cardin for his work at Dutrey's Shoes would be distributed. These funds were
the property of Brian Cardin as an individual and not as a representative of First Choice.
26. Denied as stated. It is admitted only that at some point in time Lennington spoke
of John Dutrey and related that Cardin was an employee of First Choice. It is denied that
Lennington ever told Dutrey that the business dealings and agreement with Cardin were on
behalf of First Choice.
27. Admitted.
28. Denied. It is denied that in late 2004, early 2005, First Choice built a facility at
which space was built for Cardin to provide pedorthic services. To the contrary, no space was
allocated for such activity. Further, at no time did Cardin ever perform pedorthic services in any
location on behalf of First Choice. To the balance of the allegations of this paragraph, after
reasonable investigation, answering defendant is without knowledge or information sufficient to
form a belief as to the truth thereof and proof is demanded.
29. Denied as stated. Cardin provided pedorthic services at Dutrey's Shoes. Through
February 9, 2006, Cardin was employed by First Choice. The services provided at Dutrey's, by
Cardin, were as an independent contractor of Dutrey's and were not part of Cardin's duties and
4
responsibilities as a First Choice employee.
30. Admitted.
31. Admitted.
32. Denied. It is denied that John Dutrey contacted First Choice and informed the
company that he had made other arrangements for the providing of pedorthic services. To the
contrary, pedorthic services were already being provided at Dutrey's Shoes by Brian Cardin, an
individual. Given that First Choice had not business relationship with Dutrey's Shoes, Mr.
Dutrey advised First Choice that they would not now initiate a business relationship with
Dutrey's Shoes.
33. Denied as stated. Cardin, Miller and Dutrey at no time discussed and agreed to
open a partnership.
a) Denied. It is denied that Cardin, Miller and Dutrey agreed to a partnership
which was to provide pedorthic services.
b) Denied. It is denied that Cardin, Miller and Dutrey agreed to a partnership
which would terminate pedorthic services as provided by First Choice. At
no time did First Choice provide pedorthic services at any Dutrey's Shoes
location.
C) Denied. It is denied that Cardin, Miller and Dutrey agreed to a partnership
that would establish a physical therapy operation at the same location. To
the contrary, Cardin & Miller Physical Therapy, P.C. and Dutrey's Shoes
Add, Inc, are located at separate addresses.
34. Admitted.
35. Denied. It is denied that John Dutrey, on behalf of Dutrey's Shoes Add, Inc.
contacted Cardin and Miller for the purpose of soliciting them to wrongfully accept employment
and/or establish a competing business offering pedorthic services and physical therapy.
36. Denied as stated. It is denied that Cardin and Miller set upon a course to create
and establish a physical therapy clinic and facilities to provide pedorthic services to the public.
a) Admitted.
b) Denied. It is denied that Cardin and Miller informed patients they were
seeing as employees as First Choice that they would be leaving First
Choice and establishing their own competing practice with the intent of
inducing their patients to leave First Choice.
C) Admitted.
d) Denied. It is denied that Cardin and Miller contacted referral sources for
First Choice requesting those referral sources to begin referring patients to
their practice instead of First Choice.
e) Denied. After reasonable investigation, answering defendants are without
knowledge or information sufficient to form a belief as to the truth thereof
and proof is demanded.
f) Denied. The allegations contained in this paragraph is a conclusion of law
to which no response is required, pursuant to the Pennsylvania Rules of
Civil Procedure, and which are therefore deemed denied.
37. Denied. It is denied that Cardin and Miller mailed letters to all insurers with
whom First Choice has a business relationship stating that they were no longer employed by First
Choice. The letters stated their termination dates.
38. Denied. The letters referenced in paragraph 37 in fact had to be sent to insurers so
that Cardin & Miller Physical Therapy could procure provider numbers and be recognized as
such by the insurers to whom these letters were sent.
39. Denied. At no time did Cardin provide pedorthic services at Dutrey's Shoes on
behalf of First Choice.
40. Denied. At no time did Cardin provide pedorthic services at Dutrey's Shoes on
behalf of First Choice.
COUNTI
41, The answers to paragraphs 1 thorough 40 above are incorporated by reference
thereto.
42. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
43. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
44. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
45. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
46. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
WHEREFORE, Defendants Cardin and Miller, respectfully request that the Court dismiss
each and every claim and prayer in Plaintiff's Complaint, Count I, enter judgment in Defendants'
favor and against Plaintiff, and award Defendants their costs to seek and such other and further
relief as the Court deems fair and just.
COUNT II
47. The answers to paragraphs 1 thorough 46 above are incorporated by reference
thereto.
48. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
49. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
50. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
51. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
WHEREFORE, Defendants Cardin and Miller, respectfully requests that the Court
dismiss each and every claim and prayer in Plaintiff's Complaint, Count H, enter judgment in
Defendants' favor and against Plaintiff, and award Defendants their costs to seek and such other
and further relief as the Court deems fair and just.
COUNT III
52. The answers to paragraphs 1 thorough 51 above are incorporated by reference
thereto.
53. Denied. After reasonable investigation, Defendants are without sufficient
information or knowledge with which to form a belief as to the truth of these averments and
proof is demanded at the time of trial.
54. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
55. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
56. Denied. It is denied that First Choice had a business relationship/agreement with
Dutrey's Shoes whereby First Choice provided pedorthic services at 29 North Hanover Street in
Carlisle, PA. It is further denied that First Choice provided pedorthic services at Dutrey's Shoes
which resulted in a referral of customers for physical therapy services at First Choice.
57. Denied. The allegations contained in this paragraph are conclusion of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
58. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
59. Denied. The allegations contained in this paragraph are conclusions of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which are therefore deemed denied.
WHEREFORE, Defendants Cardin & Miller Physical Therapy, P.C, and Dutrey's Shoes
Add, Inc. respectfully requests that the Court dismiss each and every claim and prayer in
Plaintiff's Complaint, Count III, enter judgment in Defendants' favor and against Plaintiff, and
award Defendants their costs to seek and such other and further relief as the Court deems fair and
just.
COUNT IV
60. The answers to paragraphs 1 thorough 59 above are incorporated by reference
thereto.
61. Denied. After reasonable investigation, Defendants are without sufficient
information or knowledge with which to form a belief as to the truth of these averments and
proof is demanded at the time of trial.
62. Denied. The allegations contained in this paragraph is a conclusion of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which is therefore deemed denied.
63. Denied. The allegations contained in this paragraph is a conclusion of law to
which no response is required, pursuant to the Pennsylvania Rules of Civil of Procedure, and
which is therefore deemed denied.
WHEREFORE, Defendants Cardin and Miller as well as Dutrey's Shoes Add, Inc.
requests that the Court dismiss each and every claim and prayer in Plaintiffs Complaint, Count
10
IV, enter judgment in Defendants' favor and against Plaintiff, and award Defendants their costs
to seek and such other and further relief as the Court deems fair and just.
NEW MATTER
64. Defendants incorporate and hereby reference the foregoing paragraphs 1 through
63 of its Answer to Complaint as if fully restated.
65. The Complaint fails to state any legally sufficient claims for relief.
66. Count I of Plaintiff's Complaint purports to set forth a legal claim for breach of
contract, at paragraph 42, that Brian Cardin violated the so-called "non-compete clause" and a
Memorandum of Understanding.
67. According to the so-called "non-compete clause," by signing that paper, Mr.
Cardin agreed "not to enter into agreements with facilities and agencies presently contracted by
McCuen & Associates during the terms of this contract and for one year following the
termination of this contract, excluding home-health vacancies."
68. Plaintiffs Complaint fails to assert or allege that Mr. Cardin entered into any
agreements with facilities and agencies that were contracted by Plaintiff.
69. To the extent that Plaintiff's Complaint alleges that the so-called "non-compete
clause" and so called "Memorandum of Understanding" represent a contract between Brian
Cardin and the Plaintiff, such claims are without merit as there is no indication that those
documents represent binding contracts since they failed to include any contractual terms and no
consideration was exchanged in return for Mr. Cardin's signature on those documents.
70. Plaintiff's Complaint seeks an injunction permanently restraining Messrs. Cardin
and Miller from operating a physical therapy practice within five miles of 28 North Hanover
11
Street, Carlisle, Pennsylvania for a period of one year of February 15, 2006. See paragraph 46(a)
of Plaintiffs Complaint. Plaintiff's Complaint fails to set forth any legal basis either contractual
or otherwise, for that claim.
71. Plaintiff's Complaint seeks an accounting of all money received by Cardin for
pedorthic services he provided while in the employ of Plaintiff. Plaintiffs Complaint fails to set
forth any legal basis either contractual or otherwise, for that claim.
71 Count M of Plaintiff's Complaint purports to set forth claims against Dutrey's
Shoes Add, Inc. for an alleged violation of a non-compete clause and memorandum of
understanding. Plaintiffs Complaint fails to set forth any legal basis either contractual or
otherwise, for that claim.
73. Plaintiff's Complaint seeks punitive damages in Counts 11, lII, and IV. Plaintiff's
claims for punitive damages are without legal basis or fact and any award of punitive damages
under the facts of this case would be in violation of the Pennsylvania and United States
Constitutions.
12
CONCLUSION
WHEREFORE, Defendants respectfully request that the Court dismiss every claim in
Plaintiff's Complaint, Counts I through IV, enter judgment in Defendants' favor and against
Plaintiff, and award Defendants their costs to seek and such other and further relief as the Court
deems fair and just.
Dated: Apri l / 7 , 2006
Respectfully submitted,
KEEFER WOOD ALLEN & RAHAL, LLP
B
Eric R. August
Attorney LD
415 Fallow elc
Camp Hill, PA
(717) 612-5803
(717) 612-5805
Road, Suite 301
17011
(fax)
Attorneys for Defendants
13
APR-18-2006 08:19 AM 2435688 P.02
04-i1-2008 IE:47 &RON-01FER Y00O,kLEN_i_RA0L
tttb12905
T-882 P,01/011 , F.114
IF
The undersigned, BRIAN D. CARDN, S7TVF., ML,LER, and JOHN D41ZEY, ltem6y.
verify and state that Lho facts set forth in the fost;goino Answer to Complaim witl, Drew Matter
I
a1r, =and Correct to the best of their knowledge, information, and belie` and mr aware that
fstl.se statements herein are made subject to the penalties in 1S Pa. C.S. § 4904, rel4ting to
um,v m Wsificat an to authorities.
Date: '7
Date:
CARDRl
o-'w
ro "'x ?
i
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answer to
Complaint and New Matter this date by depositing a true and correct copy of the same in the
United States mail, first-class postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
Eric R.
Dated: April / S' ,2006
?,
;;
??-
04-17-2009 95:47 FR041-KEEFEP W101,A'_LEN_&_R0AL
T!75i2'805 T-882 P 018/017 F-3i4
off- i'?s9 ,??
VERIFICATION
?i
The undersigned, BRIAN D. CARDIN, STEVE W J_.ER, and JOHN DIJTRE'Y, hereby
I
verify and stare :hat the facts Net forth in the foregoing Answer to Complaint with New Matter
f
arc mic and correct to the hest of their knowledge, information, and belief and are aware that
false statements herein are made subject to the penalties in 1S Pa. C.S. § 4904, rei?ting to
uns wor
Date:
Ddte:
Date:
t
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
CIVIL ACTION-EQUITY
REPLY TO NEW MATTER
NOW, comes Plaintiff, McCuen & Associates ("First Choice") and files the within Reply
to New Matter and, in support thereof, sets forth the following:
64. Plaintiff incorporates by reference paragraphs one through sixty-three of its
Complaint as though set forth at length.
65. This averments contained in this paragraph are conclusions of law to which no
response is required pursuant to the Pennsylvania Rules of civil procedure and they are,
therefore, denied.
66. Denied as stated. To the contrary, Count I of the Complaints sets forth a legally
cognizable claim for breach of contract against Brian Cardin.
67. Denied as stated. The contract is a writing which speaks for itself.
68. Denied. To the contrary, the Complaint includes allegations that Cardin entered
into agreements with facilities and agencies contracted with by First Choice.
69. Denied. To the contrary, the contracts were binding agreements supported by
consideration.
70. Admitted in part and denied in part. Admitted the Complaint seeks injunctive
relief as stated. Denied there is no legal or contractual basis for injunctive relief. To the
contrary, the facts and applicable law support the granting of injunctive relief.
71. Admitted in part and denied in part. Admitted First Choice seeks an accounting
of funds received by Cardin for pedorthic services provided. Denied there is no legal or
contractual basis for requesting such an accounting. To the contrary, the facts and applicable law
support the request for an accounting.
72. Denied as stated. To the contrary, Count III of the Complaint sets forth claims of
intentional interference with Plaintiff s existing contractual and business relationships with its
employees and customers. The facts and applicable law support this claim.
73. Denied. To the contrary, the requests for punitive damages are supported by the
facts and applicable law.
WHEREFORE, Plaintiff requests that judgment be entered in its favor and against the
Defendants as prayed for in the Complaint of Plaintiff.
Respectfully submitted,
' RIEN, BARK & SCHE
r '
David A. Baric, Esquire
I.D. # 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab. dir/litigation/fi rstcboice/ca rdin miller/newmatter. rep
VERIFICATION
I verify that the statements made in the foregoing Reply To New Matter are true and
correct to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to
authorities.
A44 - /If
David A. Baric, Esquire
'Q? _O
DATED:
Qdr,I ,
'%;?°o!%
o? a,/???Q? ?o
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CERTIFICATE OF SERVICE
I hereby certify that on May 2, 2006, I, David A. Baric, Esquire of O'Brien, Baric & Scherer,
did serve a copy of the Reply To New Matter, by first class U.S. mail, postage prepaid, to the party
listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
Vz David A. Baric, Esquire
cry TI
_
i
n)
MCCUEN & ASSOCIATES, d/b/a IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation CUMBERLAND COUNTY, PENNSYLVANIA
Specialists, ;
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
MOTION TO DISMISS OBJECTIONS TO INTERROGATORIES
AND REQUEST FOR PRODUCTION OF DOCUMENTS
NOW, comes Plaintiff, First Choice, by and through its attorneys, O'BRIEN, BARIC &
SCHERER, and files the within Motion to Dismiss Objections to Interrogatories and Request for
Production of Documents and, in support thereof, sets forth the following:
1. On or about April 25, 2006, Plaintiff served counsel for Defendants with
Plaintiff s Interrogatories Directed to Defendants. True and correct copies of Plaintiff's
Interrogatories Directed to each Defendant are attached hereto as Exhibit "A" and are
incorporated by reference
2. On or about April 25, 2006, Plaintiff served counsel for Defendants with Plaintiffs
Request for Production of Documents Directed to each Defendant. True and correct copies of
Plaintiffs Request for Production of Documents Directed to each Defendant are attached hereto
as Exhibit "B" and are incorporated by reference.
3. On or about May 30, 2006, Defendants filed "Answers To Request For Production
and Answers To First Set Of Interrogatories." True and correct copies of these documents are
attached hereto as Exhibit "C".
4. Pursuant to Pa R.C.P. 4006 (a)(2), a party submitting interrogatories may move
the court to dismiss an objection to an interrogatory and direct that the interrogatory be answered.
5. Pa R.C.P. 4005 (a) provides that the only limitation on interrogatories are those
provisions of Pa R.C.P. 4011.
6. Pursuant to Pa R.C.P. 4009.12, a party upon whom a request for production is
served shall serve an answer including objections to each numbered request.
7. Pursuant to Pa R.C.P. 4009.12 (b)(4), a party may object to a request for
production on the grounds set forth at Pa R.C.P. 4011(a), (b) and (e) or upon the grounds that the
request does not meet the requirements of Pa R.C.P. 4009.11.
8. Defendant's have filed objections to the following Interrogatories and Document
Requests:
Steven Miller: Document Requests Nos. 2 and 3
Cardin & Miller, P.C.: Interrogatories Nos. 9, 10, 18 and 20
Document Requests Nos. 2 and 3
Brian Cardin: Interrogatory No. 9
Document Requests Nos. 2 and 3
Dutrey's Add: Interrogatories Nos. 11 and 17
Document Requests No. 3
9. Pa R.C.P. 4009.1 provides that a party may seek production of documents which
are "... in the possession, custody or control of the party or person upon whom the request or
subpoena is served; and may do so one or more times."
10. Pa R.C.P. 4019 (a)(1)(vii) permits this Court to make an appropriate order if a
parry fails to respond that inspection will be permitted as requested or fails to permit inspection
as requested under Rule 4009.
11. Pa R.C.P. 4019 (a)(i)(viii) permits this Court to make an appropriate order if a
party fails to make discovery.
12. By correspondence dated June 8, 2006, counsel for Plaintiff requested that counsel
for Defendant's reconsider the objections and no response has been received to the date of this
motion. A true and correct copy of this correspondence is attached hereto as Exhibit "D" and is
incorporated by reference.
WHEREFORE, Plaintiff respectfully moves this Court to issue and order overruling the
objections of Defendants to the Interrogatories and Request for Production of Plaintiff and direct
Defendants to provide and serve upon counsel for Plaintiff full and complete responses to the
interrogatories and document requests.
Respectfully submitted,
O' N, BARIC CHE
/ r David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigation/lirstchoice/cardinmillerdismissobjection.mot
MCCUEN & ASSOCIATES, d/b/a IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation CUMBERLAND COUNTY, PENNSYLVANIA
Specialists,
V.
Plaintiff,
NO. 2006 - 1759 CIVIL TERM
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
CIVIL ACTION-EQUITY
FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT BRIAN D. CARDIN
PLEASE TAKE NOTICE that you are hereby required pursuant to Pennsylvania Rules
of Civil Procedure 4009. 1, to file the original and serve upon the undersigned a copy of your
Answers and Objections, if any, in writing and under oath, to the following Interrogatories within
thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the spaces
provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer
shall follow on a supplemental sheet.
These shall be deemed to be continuing Interrogatories. If between the time of filing your
Answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your Answers, or if you learn that any information set forth
in your Answers is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
EXHIBIT "A"
DEFINITIONS
A. The term "document" as used herein shall mean the original and any copy, marked
up copy, revision, amendment, modification, non-identical copy and/or draft, or any written,
printed, typed, drawn or other graphic matter of any kind or nature, however, produced or
reproduced, whether or not sent or received, including without limitation; memoranda, reports,
computations, estimates, communications, financial reports or statements, notes, transcripts,
letters, correspondence, intra or inter office communications, envelopes, telegrams, cables,
telephone messages, messages, emails, electronic transmissions, summaries or records of
telephone conversations, summaries or records of personal conversations or interviews, minutes,
notes, notations, tabulations, studies, analyses, reports, evaluations, projection, work papers,
summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings,
blue prints, modules, specifications, data, sketches, maps, boring logs, soil tests, soil charts, soil
reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices,
checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or
tape recordings of meetings or conferences, summaries or reports of investigations, opinions or
reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts,
articles, magazines, newspapers, booklets, circulares, bulletins, press releases, notices,
instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion
picture film, microfilms, photographs, tapes or other recordings, punch charts, computer
programs, magnetic tapes, discs, data cells, drums, printout and other data computations from
which information can be obtained, and marginal comments appearing on any documents, and all
other writings in the possession, custody or control of Plaintiffs or their agents, officers,
employees or attorneys.
B. "Defendant" means Brian D. Cardin.
C. "Person" or "Persons" shall mean any natural individual or corporation, firm
partnership, proprietorship, association, joint venture, governmental entity or any other business
or government organization.
D. "Meeting" shall mean any assembly, convocation, encounter or coincidence of
two or more persons for any purpose, whether or not planned, arranged or scheduled in advance.
E. "Communication" shall mean any utterance made, human speech heard,
overheard, or intended to be heard by any person, whether in person, by telephone, by means of
sounding recording, or otherwise.
F. "Identify" means:
(a) When used in reference to a document, describe with sufficient
particularity to form the basis for a Request for Production under Pa. R.C.P. 4009,
including but not limited to the date it was prepared or created, the identity of its
author or originator, the type of document (e.g_, letter, telegram, chart,
photograph, sound recordings, etc.), the identity of its addressee, its present
location and the identity of its present custodian(s). If such document was, but is
no longer, in your possession or subject to your control, state what disposition was
made of it;
(b) When used in reference to a natural person or business entity, "identify"
means to state his or her or its full name, present or last known home address, present or
last known business address, present or last known home telephone number, present or
last known position or affiliation.
G. "Incident" or "occurrence" mean the transaction or occurrence or series of
transactions or occurrences giving rise to the matters for which Plaintiff is seeking damages as
indicated in the Complaint.
H. "You" means Brian D. Cardin, or any representative, agent, servant, officer, or
employee thereof.
I. "First Choice" means the Plaintiff in this matter.
INSTRUCTIONS
If you object to the production of any documents on the grounds that the attorney-client,
attorney work product or any other privilege is applicable thereto, with respect to that document:
(a) State its date;
(b) Identify its author;
(c) Identify each person who prepared or participated in the preparation of the
documents;
(d) Identify each person who received it;
(e) Identify each person from whom the documents were received;
(f) State the present location of the document and all copies thereof;
(g) Identify each person who has ever had possession, custody or control of it or copy
thereof; and
(h) Provide sufficient information concerning the document and the circumstances
thereof to explain the claim of privilege and to permit the adjudication of the propriety of that
claim.
INTERROGATORIES
1. Please identify any and all records in your possession which reflect, refer or relate to the
receipt of money for pedorthic services provided by Brian Cardin at the Dutrey's Shoes
facility located at 28 North Hanover Street from December, 2003 through January, 2006.
ANSWER:
2. Did Dutrey Shoes Add, Inc. receive any money for pedorthic services provided by Brian
Cardin at the Dutrey's Shoes facility located at 28 North Hanover Street from December,
2003 through January, 2006.
ANSWER:
3. If the answer to interrogatory number 2 is in the affirmative, please describe each amount
received, when received, from whom received and the service provided which generated
the receipt
ANSWER:
4. If the answer to interrogatory number 2 is in the affirmative, please identify any and all
documents which reflect, refer or relate to the receipt of any money for pedorthic services
provided by Brian Cardin.
ANSWER:
5. When did you first contemplate opening a physical therapy practice at 290 East Pomfret
Street, Carlisle, Pennsylvania.
ANSWER:
6. Is there any agreement which describes or states how fees generated by the providing of
pedorthic services at 290 East Pomfret Street will be divided.
ANSWER:
7. If the answer to interrogatory number 6 is in the affirmative, please identify the
agreement.
ANSWER:
8. Please identify any insurance coverages maintained by Brian Cardin during the period
December, 2003 through January, 2006 which policies would cover claims of malpractice
relating to the providing of pedorthic services.
ANSWER:
9. Please identify any individual income tax returns you filed for the years 2003, 2004 and
2005.
ANSWER:
10. Do you have in your possession any documents which were created by First Choice.
ANSWER:
11. Please identify all documents in your possession which were created by First Choice.
ANSWER:
12. Please identify all physical therapy patients of Cardin & Miller, P.C. who have been
referred to Cardin & Miller, P.C. by Brian Cardin in his work as a pedorthist at Dutrey's.
ANSWER:
13. Identify all potential physical therapy referral sources with whom you discussed the
services to be offered by Cardin & Miller, P.C. prior to the effective date of your
resignation from First Choice.
ANSWER:
14. Identify any records in your possession, custody or control which reflect, refer or relate to
the bank account for a real estate partnership known as Halifax Real Estate Partnership.
ANSWER:
Respectfully submitted,
O' N, BARIC SCHERE
.
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dir/litigation/firstchoice%ardinmiller/cardin.int
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT STEVE MILLER
PLEASE TAKE NOTICE that you are hereby required pursuant to Pennsylvania Rules
of Civil Procedure 4009. 1, to file the original and serve upon the undersigned a copy of your
Answers and Objections, if any, in writing and under oath, to the following Interrogatories within
thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the spaces
provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer
shall follow on a supplemental sheet.
These shall be deemed to be continuing Interrogatories. If between the time of filing your
Answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your Answers, or if you learn that any information set forth
in your Answers is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
DEFINITIONS
A. The term "document" as used herein shall mean the original and any copy, marked
up copy, revision, amendment, modification, non-identical copy and/or draft, or any written,
printed, typed, drawn or other graphic matter of any kind or nature, however, produced or
reproduced, whether or not sent or received, including without limitation; memoranda, reports,
computations, estimates, communications, financial reports or statements, notes, transcripts,
letters, correspondence, intea or inter office communications, envelopes, telegrams, cables,
telephone messages, messages, emails, electronic transmissions, summaries or records of
telephone conversations, summaries or records of personal conversations or interviews, minutes,
notes, notations, tabulations, studies, analyses, reports, evaluations, projection, work papers,
summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings,
blue prints, modules, specifications, data, sketches, maps, boring logs, soil tests, soil charts, soil
reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices,
checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or
tape recordings of meetings or conferences, summaries or reports of investigations, opinions or
reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts,
articles, magazines, newspapers, booklets, circulares, bulletins, press releases, notices,
instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion
picture film, microfilms, photographs, tapes or other recordings, punch charts, computer
programs, magnetic tapes, discs, data cells, drums, printout and other data computations from
which information can be obtained, and marginal comments appearing on any documents, and all
other writings in the possession, custody or control of Plaintiffs or their agents, officers,
employees or attorneys.
B. "Defendant! 'means Steve Miller.
C. "Person" or "Persons" shall mean any natural individual or corporation, firm,
partnership, proprietorship, association, joint venture, governmental entity or any other business
or government organization.
D. "Meeting" shall mean any assembly, convocation, encounter or coincidence of
two or more persons for any purpose, whether or not planned, arranged or scheduled in advance.
E. "Communication" shall mean any utterance made, human speech heard,
overheard, or intended to be heard by any person, whether in person, by telephone, by means of
sounding recording, or otherwise.
F. "Identify" means:
(a) When used in reference to a document, describe with sufficient
particularity to form the basis for a Request for Production under Pa. R.C.P. 4009,
including but not limited to the date it was prepared or created, the identity of its
author or originator, the type of document e(e.., letter, telegram, chart,
photograph, sound recordings, etc.), the identity of its addressee, its present
location and the identity of its present custodian(s). If such document was, but is
no longer, in your possession or subject to your control, state what disposition was
made of it;
(b) When used in reference to a natural person or business entity, "identify"
means to state his or her or its full name, present or last known home address, present or
last known business address, present or last known home telephone number, present or
last known position or affiliation.
G. "Accident," "incident" or "occurrence"- mean the transaction or occurrence or
series of transactions or occurrences giving rise to the matters for which Plaintiff is seeking
damages as indicated in the Complaint.
H. "You" means Steve Miller, or any representative, agent, servant, officer, or
employee thereof.
I. "First Choice" means the Plaintiff in this matter.
INSTRUCTIONS
If you object to the production of any documents on the grounds that the attomey-client,
attorney work product or any other privilege is applicable thereto, with respect to that document:
(a) State its date;
(b) Identify its author;
(c) Identify each person who prepared or participated in the preparation of the
documents;
(d) Identify each person who received it;
(e) Identify each person from whom the documents were received;
(f) State the present location of the document and all copies thereof;
(g) Identify each person who has ever had possession, custody or control of it or copy
thereof; and
(h) Provide sufficient information concerning the document and the circumstances
thereof to explain the claim of privilege and to permit the adjudication of the propriety of that
claim.
1. When did you first contemplate opening a physical therapy practice at 290 East Pomfret
Street, Carlisle, Pennsylvania.
ANSWER:
2. Do you have in your possession any documents which were created by First Choice.
ANSWER:
3. Please identify all documents in your possession which were created by First Choice.
ANSWER:
4. Identify all potential physical therapy referral sources with whom you discussed the
creation of or services to be offered by Cardin & Miller, P.C. prior to the effective date of
your resignation from First Choice.
ANSWER:
Respectfully submitted,
O N, BARIC & SCHE
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dir/litigatioNtirstchoice/cardinmlller/miller.int
CERTIFICATE OF SERVICE
I hereby certify that on 2006, I, Andrea M. Barrick, secretary to
David A. Baric, did serve a copy of the three First Set of Interrogatories of Plaintiff Propounded
upon Defendants Steve Miller, Brian Cardin and Cardin & Miller Physical Therapy, P.C. and
Requests for Production of Documents, by first class U.S. mail, postage prepaid, to the party
listed below, as follows:
Eric R. Augustine
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
Andrea M. Barrick
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
FIRST SET OF INTERROGATORIES OF PLAINTIFF PROPOUNDED
UPON DEFENDANT CARDIN & MILLER PHYSICAL THERAPY P.C.
PLEASE TAKE NOTICE that you are hereby required pursuant to Pennsylvania Rules
of Civil Procedure 4009. 1, to file the original and serve upon the undersigned a copy of your
Answers and Objections, if any, in writing and under oath, to the following Interrogatories within
thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the spaces
provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer
shall follow on a supplemental sheet.
These shall be deemed to be continuing Interrogatories. If between the time of filing your
Answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your Answers, or if you learn that any information set forth
in your Answers is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
DEFINITIONS
A. The term "document" as used herein shall mean the original and any copy, marked
up copy, revision, amendment, modification, non-identical copy and/or draft, or any written,
printed, typed, drawn or other graphic matter of any kind or nature, however, produced or
reproduced, whether or not sent or received, including without limitation; memoranda, reports,
computations, estimates, communications, financial reports or statements, notes, transcripts,
letters, correspondence, intra or inter office communications, envelopes, telegrams, cables,
telephone messages, messages, emails, electronic transmissions, summaries or records of
telephone conversations, summaries or records of personal conversations or interviews, minutes,
notes, notations, tabulations, studies, analyses, reports, evaluations, projection, work papers,
summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings,
blue prints, modules, specifications, data, sketches, maps, boring logs, soil tests, soil charts, soil
reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices,
checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or
tape recordings of meetings or conferences, summaries or reports of investigations, opinions or
reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts,
articles, magazines, newspapers, booklets, circulares, bulletins, press releases, notices,
instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion
picture film, microfilms, photographs, tapes or other recordings, punch charts, computer
programs, magnetic tapes, discs, data cells, drums, printout and other data computations from
which information can be obtained, and marginal comments appearing on any documents, and all
other writings in the possession, custody or control of Plaintiffs or their agents, officers,
employees or attorneys.
B. "Defendant" means Cardin & Miller, P.C.
C. "Person" or "Persons" shall mean any natural individual or corporation, firm,
partnership, proprietorship, association, joint venture, governmental entity or any other business
or government organization.
D. "Meeting" shall mean any assembly, convocation, encounter or coincidence of
two or more persons for any purpose, whether or not planned, arranged or scheduled in advance.
E. "Communication" shall mean any utterance made, human speech heard,
overheard, or intended to be heard by any person, whether in person, by telephone, by means of
sounding recording, or otherwise.
F. "Identify" means:
(a) When used in reference to a document, describe with sufficient
particularity to form the basis for a Request for Production under Pa. R.C.P. 4009,
including but not limited to the date it was prepared or created, the identity of its
author or originator, the type of document (-e-.Z. , letter, telegram, chart,
photograph, sound recordings, etc.), the identity of its addressee, its present
location and the identity of its present custodian(s). If such document was, but is
no longer, in your possession or subject to your control, state what disposition was
made of it;
(b) When used in reference to a natural person or business entity, "identify"
means to state his or her or its full name, present or last known home address, present or
last known business address, present or last known home telephone number, present or
last known position or affiliation.
G. "Accident," "incident" or "occurrence" mean the transaction or occurrence or
series of transactions or occurrences giving rise to the matters for which Plaintiff is seeking
damages as indicated in the Complaint.
H. "You" means Cardin & Miller, P.C., or any representative, agent, servant, officer,
or employee thereof.
I. "First Choice" means the Plaintiff in this matter.
INSTRUCTIONS
If you object to the production of any documents on the grounds that the attorney-client,
attorney work product or any other privilege is applicable thereto, with respect to that document;
(a) State its date;
(b) Identify its author;
(c) Identify each person who prepared or participated in the preparation of the
documents;
(d) Identify each person who received it;
(e) Identify each person from whom the documents were received;
(f) State the present location of the document and all copies thereof;
(g) Identify each person who has ever had possession, custody or control of it or copy
thereof; and
(h) Provide sufficient information concerning the document and the circumstances
thereof to explain the claim of privilege and to permit the adjudication of the propriety of that
claim.
1NTERROOATO jES
Identify all shareholders of Cardin & Miller, P.C.
ANSWER:
2. Identify all officers of Cardin & Miller, P.C. by name and office held.
ANSWER
3. Did Cardin & Miller, P.C. enter into a written lease for a portion of that property known
as 290 East Pomfret Street, Carlisle, Pennsylvania.
ANSWER:
4. If the answer to interrogatory number 3 is in the affirmative, please identify the lease
agreement.
ANSWER:
5. Has Cardin & Miller, P.C. entered into any written agreement with Dutrey Add, Inc.
ANSWER:
6. If the answer to interrogatory number 5 is in the affirmative, please identify the lease
agreement.
ANSWER:
7. Does Cardin & Miller, P.C. and Dutrey Add, Inc. divide or share any fees generated by
the providing of pedorthic services.
ANSWER:
8. If the answer to interrogatory number 7 is in the affirmative, please describe how fees
generated by the providing of pedorthic services are shared or divided.
ANSWER:
9. Please identify all employees of Cardin & Miller, P.C.
ANSWER:
10. For each employee identified in response to interrogatory number 8 please identify the
former employer of each employee of Cardin & Miller, P.C.
ANSWER:
11. Please describe the terms of the partnership between Dutrey's and Cardin & Miller, P.C.
ANSWER:
12. Is there a written partnership agreement between Cardin & Miller, P.C. and Dutrey's
ANSWER:
13. If the answer to interrogatory number 12 is in the affirmative, please identify the
agreement.
ANSWER:
14. Is there any agreement which describes or states how fees generated by the providing of
pedorthic services at 290 East Pomfret Street will be divided.
ANSWER:
15. If the answer to interrogatory number 14 is in the affirmative, please identify the
agreement.
ANSWER:
16. Do you have in your possession any documents which were created by First Choice.
ANSWER:
17. Please identify all documents in your possession which were created by First Choice.
ANSWER:
18. Please identify all patients of Cardin & Miller, P.C. from the date it first provided
physical therapy services to the date of these interrogatories.
ANSWER:
19. Please identify all physical therapy patients of Cardin & Miller, P.C. who have been
referred to Cardin & Miller, P.C. by Brian Cardin in his work as a pedorthist at Dutrey's.
ANSWER:
20. Does Carden & Miller, P.C. have malpractice insurance.
ANSWER:
21. If the answer to interrogatory number 20 is in the affirmative, please identify the insurer,
the agent from whom you obtained the policy and the coverage dates of the policy.
ANSWER:
22. If the answer to interrogatory number 20 is in the affirmative, does the policy cover
pedorthic services offered by Cardin & Miller, P.C.
ANSWER:
Respectfully submitted,
4' N, BARI SCHE
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dir/litigation/firstchoicelcardinmiller/cardin&miller.int '
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
BRIAN D. CARDIN, CIVIL ACTION-EQUITY
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT DUTREY'S SHOES ADD INC.
PLEASE TAKE NOTICE that you are hereby required pursuant to Pennsylvania Rules
of Civil Procedure 4009. 1, to file the original and serve upon the undersigned a copy of your
Answers and Objections, if any, in writing and under oath, to the following Interrogatories within
thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the spaces
provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer
shall follow on a supplemental sheet.
These shall be deemed to be continuing Interrogatories. If between the time of filing your
Answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your Answers, or if you learn that any information set forth
in your Answers is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
DEFINI'T'IONS
A. The term "document" as used herein shall mean the original and any copy, marked
up copy, revision, amendment, modification, non-identical copy and/or draft, or any written,
printed, typed, drawn or other graphic matter of any kind or nature, however, produced or
reproduced, whether or not sent or received, including without limitation; memoranda, reports,
computations, estimates, communications, financial reports or statements, notes, transcripts,
letters, correspondence, intra or inter office communications, envelopes, telegrams, cables,
telephone messages, messages, emails, electronic transmissions, summaries or records of
telephone conversations, summaries or records of personal conversations or interviews, minutes,
notes, notations, tabulations, studies, analyses, reports, ? evaluations, projection, work papers,
summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings,
blue prints, modules, specifications, data, sketches, maps, boring logs, soil tests, soil charts, soil
reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices,
checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or
tape recordings of meetings or conferences, summaries or reports of investigations, opinions or
reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts,
articles, magazines, newspapers, booklets, circulares, bulletins, press releases, notices,
instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion
picture film, microfilms, photographs, tapes or other recordings, punch charts, computer
programs, magnetic tapes, discs, data cells, drums, printout and other data computations from
which information can be obtained, and marginal comments appearing on any documents, and all
other writings in the possession, custody or control of Plaintiffs or their agents, officers,
employees or attorneys.
B. "Defendant" means Dutrey's Shoes Add, Inc.
C. "Person" or "Persons" shall mean any natural individual or corporation, firm,
partnership, proprietorship, association, joint venture, governmental entity or any other business
or government organization.
D. "Meeting" shall mean any assembly, convocation, encounter or coincidence of
two or more persons for any purpose, whether or not planned, arranged or scheduled in advance.
E. "Communication" shall mean any utterance made, human speech heard,
overheard, or intended to be heard by any person, whether in person, by telephone, by means of
sounding recording, or otherwise.
F. "Identify" means:
(a) When used in reference to a document, describe with sufficient
particularity to form the basis for a Request for Production under Pa. R.C.P. 4009,
including but not limited to the date it was prepared or created, the identity of its
author or originator, the type of document (e.g, letter, telegram, chart,
photograph, sound recordings, etc.), the identity of its addressee, its present
location and the identity of its present custodian(s). If such document was, but is
no longer, in your possession or subject to your control, state what disposition was
made of it;
(b) When used in reference to a natural person or business entity, "identify"
means to state his or her or its full name, present or last known home address, present or
last known business address, present or last known home telephone number, present or
last known position or affiliation.
G. "Accident," "incident" or "occurrence" mean the transaction or occurrence or
series of transactions or occurrences giving rise to the matters for which Plaintiff is seeking
damages as indicated in the Complaint.
H. "You" means Dutrey's Shoes Add, Inc., or any representative, agent, servant,
officer, or employee thereof.
I. "First Choice" means the Plaintiff in this matter.
INSTRUCTIONS
If you object to the production of any documents on the grounds that the attorney-client,
attorney work product or any other privilege is applicable thereto, with respect to that document:
(a) State its date;
(b) Identify its author;
(c) Identify each person who prepared or participated in the preparation of the
documents;
(d) Identify each person who received it;
(e) Identify each person from whom the documents were received;
(f) State the present location of the document and all copies thereof;
(g) Identify each person who has ever had possession, custody or control of it or copy
thereof; and
(h) Provide sufficient information concerning the document and the circumstances
thereof to explain the claim of privilege and to permit the adjudication of the propriety of that
claim.
I. "First Choice" means the Plaintiff in this matter.
INSTRUCTIONS
If you object to the production of any documents on the grounds that the attorney-client
,
attorney work product or any other privilege is applicable thereto, with respect to that document:
(a) State its date;
(b) Identify its author;
(c) Identify each person who prepared or participated in the preparation of the
documents;
(d) Identify each person who received it;
(e) Identify each person from whom the documents were received;
(0 State the present location of the document and all copies thereof;
(g) Identify each person who has ever had possession, custody or control of it or copy
thereof; and
(h) Provide sufficient information concerning the document and the circumstances
thereof to explain the claim of privilege and to permit the adjudication of the propriety of that
claim.
INTERROGATORIES
1. Please identify any and all records in your possession which reflect, refer or relate to the
receipt of money for pedorthic services provided by Brian Cardin at the Dutrey's Shoes
facility located at 28 North Hanover Street from December, 2003 through January, 2006.
ANSWER:
2. Did Dutrey Shoes Add, Inc. receive any money for pedorthic services provided by Brian
Cardin at the Dutrey's Shoes facility located at 28 North Hanover Street from December,
2003 through January, 2006.
ANSWER:
3. If the answer to interrogatory number 2 is in the affirmative, please describe each amount
received, when received, from whom received and the service provided which generated
the receipt
ANSWER:
4. If the answer to interrogatory number 2 is in the affirmative, please identify any and all
documents which reflect, refer or relate to the receipt of any money for pedorthic services
provided by Brian Cardin.
ANSWER:
5. When did you first contemplate opening a physical therapy practice at 290 East Pomfret
Street, Carlisle, Pennsylvania.
ANSWER:
6. Is there any agreement which describes or states how fees generated by the providing of
pedorthic services at 290 East Pomfret Street will be divided.
ANSWER:
7. If the answer to interrogatory number 6 is in the affirmative, please identify the
agreement.
ANSWER:
8. Please identify any insurance coverages maintained by Brian Cardin during the period
December, 2003 through January, 2006 which policies would cover claims of malpractice
relating to the providing of pedorthic services.
ANSWER:
9. Please identify any individual income tax returns you filed for the years 2003, 2004 and
2005.
ANSWER:
10. Do you have in your possession any documents which were created by First Choice.
ANSWER:
11. Please identify all documents in your possession which were created by First Choice.
ANSWER:
12. Please identify all physical therapy patients of Cardin & Miller, P.C. who have been
referred to Cardin & Miller, P.C. by Brian Cardin in his work as a pedorthist at Dutrey's.
ANSWER:
13. Identify all potential physical therapy referral sources with whom you discussed the
services to be offered by Cardin & Miller, P.C. prior to the effective date of your
resignation from First Choice.
ANSWER:
14. Identify any records in your possession, custody or control which reflect, refer or relate to
the bank account for a real estate partnership known as Halifax Real Estate Partnership.
ANSWER:
Respectfully submitted,
O' N, BARIC SCHERE
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dir/litigation/firstchoice/cardinmiller/cardin.int
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 1759 CIVIL TERM
CIVIL ACTION-EQUITY
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-client,
attorney work-product or any other privilege is applicable thereto, you shall with respect to that
document:
(a) State its date;
(b) Identify its author;
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof;
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
EXHIBIT "B"
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
2. All corporate records for Cardin & Miller, P.C.
3. All written communications with any individuals or entities which were referral sources
for First Choice.
4. Any documents you intend to introduce at the trial of this matter.
5. Applications for any insurance applied for by Cardin & Miller, P.C.
6. All documents which reflect, refer or relate to the negotiation or execution of a lease for
the present business location of Cardin & Miller, P.C.
7. All documents which reflect, refer or relate to income received from the providing of
pedorthic services during the period December, 2003 through January, 2006.
Respectfully submitted,
B N, B E R
David A. Banc, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.d ir/litigation/tirstchoice/cardinmiller/stevemf ller.req
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 1759 CIVIL TERM
CIVIL ACTION-EQUITY
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-client,
attorney work-product or any other privilege is applicable thereto, you shall with respect to that
document:
(a) State its date;
(b) Identify its author;
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof;
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
2. All corporate records for Cardin & Miller, P.C.
3. All written communications with any individuals or entities which were referral sources
for First Choice.
4. Any documents you intend to introduce at the trial of this matter.
5. Applications for any insurance applied for by Cardin & Miller, P.C.
6. All documents which reflect, refer or relate to the negotiation or execution of a lease for
the present business location of Cardin & Miller, P.C.
7. All documents which reflect, refer or relate to income received from the providing of
pedorthic services during the period December, 2003 through January, 2006.
Respectfully submitted,
&BN, B E
L
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigatioNfirstchoice/cardinmiller/briancardin.req l
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 1759 CIVIL TERM
CIVIL ACTION-EQUITY
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-client,
attorney work-product or any other privilege is applicable thereto, you shall with respect to that
document:
(a) State its date;
(b) Identify its author;
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof,
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
2. All corporate records for Cardin & Miller, P.C.
3. All written communications with any individuals or entities which were referral sources
for First Choice.
4. Any documents you intend to introduce at the trial of this matter.
Applications for any insurance applied for by Cardin & Miller, P.C.
6. All documents which reflect, refer or relate to the negotiation or execution of a lease for
the present business location of Cardin & Miller, P.C.
7. All documents which reflect, refer or relate to income received from the providing of
pedorthic services during the period December, 2003 through January, 2006.
Respectfully submitted,
O' B R
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigation/firstchoice/cardinmiller/cardinmiller.req
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 1759 CIVIL TERM
CIVIL ACTION-EQUITY
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-client,
attorney work-product or any other privilege is applicable thereto, you shall with respect to that
document:
(a) State its date;
(b) Identify its author;
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof;
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. All documents identified in response to the First Set of Interrogatories of Plaintiff
propounded upon you.
2. Any documents you intend to introduce at the trial of this matter.
3. All documents which reflect, refer or relate to any business relationship or interaction
between you and Cardin & Miller, P.C.
4. All documents which reflect, refer or relate to any income received by you from the
providing of pedorthic services during the period December, 2003 through January, 2006.
5. All documents which reflect, refer or relate to any income received by you from the
providing of pedorthic services during the period January, 2006 to the present.
6. All policies of insurance in place for Dutrey's Shoes Add, Inc. as of December, 2005.
Respectfully submitted,
N, B C S RER
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
d ab.dir/litigation/nrstchoice/cardinmiller/dutrey.req
MCCUEN & ASSOCIATES, d/b/a IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation CUMBERLAND COUNTY, PENNSYLVANIA
Specialists,
Plaintiff, NO. 2006-1759 CIVIL TERM
V.
CIVIL ACTION-EQUITY
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & M -UR PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
ANSWERS TO REQUESTS FOR PRODUCTION OF DOCUMENTS OF PLAINTIFF
UPON DEFENDANT STEVE MILLER
General Objections
Defendant Steve Miller objects to any document request that seeks documents covered by
the attorney-client privilege or attorney work product. Without waiver of those objections,
Defendant's response to these specific requests are as follows:
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
RESPONSE:
To the extent the interrogatories have not been objected to, and only to the extent that
they have been responded to, the appropriate documentation will be provided.
2. All corporate records for Cardin & Miller, P.C.
RESPONSE:
Defendant Miller objects to this request in that it is overly broad and unduly burdensome.
The term "document" is identified as including "written, printed, typed, recorded, or
EXHIBIT "C"
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, contracts, agreements,
notes, memoranda, analysis, projections, indices, work papers, studies, reports, surveys,
diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any
other writing (including copies of any of the foregoing) regardless of whether you, your
former or present counsel, agents, employees, officers, insurers, or any other person
acting on your behalf, are now in possession, custody or control." Such a request could
cover hundreds or thousands of documents, which is clearly overly broad and unduly
burdensome. Additionally, to provide every "document" is further objectionable on the
basis that several documents could be protected by attorney-client privilege.
3. All written communications with any individuals or entities which were referral sources
for First Choice.
RESPONSE:
Defendant Miller objects to this request in that it is overly broad and unduly burdensome.
The term "document" is identified as including "written, printed, typed, recorded, or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, contracts, agreements,
notes, memoranda, analysis, projections, indices, work papers, studies, reports, surveys,
diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any
other writing (including copies of any of the foregoing) regardless of whether you, your
former or present counsel, agents, employees, officers, insurers, or any other person
acting on your behalf, are now in possession, custody or control." Such a request could
cover hundreds or thousands of documents, which is clearly overly broad and unduly
burdensome. Additionally, to provide every "document" is further objectionable on the
basis that several documents could be protected by attorney-client privilege.
4. Any documents you intend to introduce at the trial of this matter.
RESPONSE:
Discovery in this matter is on-going and Defendant has not identified all such documents.
To the extent such documents are known and have not been objected to, they will be
provided.
5. Applications for any insurance applied for by Cardin & Miller, P.C.
RESPONSE:
None.
2
6. All documents which reflect, refer or relate to the negotiation or execution of a lease for
the present business location of Cardin & Miller, P.C.
RESPONSE:
To the extent that they are not protected by attorney-client privilege or attorney work
product and subject to the objections stated in response no. 2, these documents will be
provided.
7. All documents which reflect or relate to income received from the providing of pedorthic
services during the period December, 2003 through January, 2006.
RESPONSE:
To the extent that they are not protected by attorney-client privilege or attorney work
product and subject to the objections stated in response no. 2, these documents will be
provided.
AS TO OBJECTIONS
KEEFER WOOD ALLEN & RAHAL, LLP
Dated: May 3 a , 2006 By
3
cam'?
Eric R. Augusti
Attorney I.D. 8277
415 Fallow field Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
MAY-25-2006 THU 05:1'0 PIS WIMIUR
01-24-2.809 oe, 3I FRoY- OPIR, MW ALMULRAHAL
FAX No. 2435688
JUMBOS T-004 P.
3MARMATIom
I, STEVE MEIMI , the undersigned, acknoWledge that:
1. I am an adult individual and one of the witnesses herein;
2. The av"Ment,S/rosponses set forth in the foregoing Answers to Requests for
knowledge, information, and belief; and
Production of Documents of Plaintiff Upon Defendant are true and correct to the best of my
P. 005
3. I am aware that false statements herein axe made subject to the penalties of IS Pa.
C.S. § 4904, relating to unworn falsification to authorities.
e t
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Requests for Production of Documents of Plaintiff upon Defendant Steve Miller this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL, TERM
CIVIL ACTION-EQUITY
ANSWERS TO FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT STEVE MILLER
1. When did you first contemplate opening a physical therapy practice at 290 East Pomfret
Street, Carlisle, Pennsylvania?
ANSWER:
December, 2005.
2. Did you have in your possession any documents which were created by First Choice?
ANSWER:
No.
3. Please identify all documents in your possession which were created by First Choice.
ANSWER:
N/A
4. Identify all potential therapy referral sources with whom you discussed the creation of or
services to be offered by Cardin & Miler, P.C. prior to the effective date of your
resignation from First Choice.
ANSWER:
None. In the course of Mr. Miller's employement with First Choice, Dr. Scott Setzer
would on occassion refer patients to Mr. Miller at First Choice. A common practice of Dr. Setzer
was to telephone Mr. Miller to discuss the care of Dr. Setzer's patients. After Mr. Miller
tendered his resignation, but prior to the effective date, Dr. Setzer called Mr. Miller to discuss the
care plan for some patients Dr. Setzer had referred. Mr. Miller told Dr. Setzer what while he
would be able to begin care programs for these patients, Mr. Miller would not be able to carry out
their full treatment as he had resigned from First Choice. Although Dr. Setzer asked Mr. Miller
where he was going, Mr. Miller's response was only that he would discuss his future in more
detail after the effective date of his resignation. No discussions regarding the creation of or
services to be offered by Cardin & Miller, P.C. where held prior to the effective date of Mr.
Miller's resignation.
AS TO OBJECTIONS
Dated: May , 2006
KEEFER WOOD ALLEN & RAHAL, LLP
By.
2
Attorney I.D. #78277
415 Fallowfield Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
NIAY725-2006 THU 06:09 Phil NIMILS FAX No. 2435688
05-24-2006 .06:39 FR011-XUFIR- N O,ALLBN..i_RAIUL T116t25005 P 002
"04 P.005/012 F?6
VM)PICATION
L S -VE MU-ER, the undersigned, acknowledge that:
1• I am an adult individual and one of the witnesses herein;
2. The avermenWresponses set forth in the foregoing Answers to First Set of
Intexrogatoifes of Plaintiff Propounded Upon Defendant ate true and correct to the best of my
knowledge, information, and belief, and
3. I am aware that false statements herein are made subject to the penalties of I8 Pa,
C.S. 14904, relating to unworn falsification to authorities.
STEVE MILLMR °'? ---
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
First Set of Interrogatories of Plaintiff Propounded Upon Defendant Steve Miller this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
CIVIL ACTION-EQUITY
Defendants.
ANSWERS TO FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT CARDIN & MILLER
PHYSICAL THERAPY P.C.
1. Identify all shareholders of Cardin & Miller, P.C.
ANSWER:
Brian Cardin and Steve Miller.
2. Identify all officers of Cardin & Miller, P.C. by name and office held.
ANSWER:
President, Brian Cardin
Secretary/Treasurer, Steve Miller
3. Did Cardin & Miller, P.C. enter into a written lease for a portion of that property known
as 290 East Pomfret Street, Carlisle, Pennsylvania?
ANSWER:
Yes.
4. If the answer to interrogatory 3 is in the affirmative, please identify the lease agreement.
ANSWER:
Lease between Mildin, Inc. and Castles Land Company dated January 12, 2006.
5. Has Cardin & Miller, P.C. entered into any written agreement with Dutrey Add, Inc.?
ANSWER:
Yes.
6. If the answer to interrogatory number 5 is in the affirmative, please identify the lease
agreement.
ANSWER:
The written agreement is a sublease. See answer to interrogatory number 2 directed to
John Dutrey.
7. Does Cardin & Miller, P.C. and Dutrey Add, Inc. divide or share any fees generated by
the providing of pedorthic services?
ANSWER:
No.
8. If the answer to interrogatory number 7 is in the affirmative, please describe how fees
generated by the provisions of pedorthic services are shared or divided.
ANSWER:
N/A
9. Please identify all employees of Cardin & Miller, P.C.
2
ANSWER:
Objection. This Interrogatory is objected to as violative of Pennsylvania Rule of Civil
Procedure No. 4003.1 and that it seeks information which would be inadmissible at trial
and is not reasonable calculated to lead to the discovery of admissible evidence.
10. For each employee identified in response to interrogatory number 8 please identify the
former employer of each employee of Cardin & Miller, P.C.
ANSWER:
Objection. This Interrogatory is objected to as violative of Pennsylvania Rule of Civil
Procedure No. 4003.1 and that it seeks information which would be inadmissible at trial
and is not reasonable calculated to lead to the discovery of admissible evidence
11. Please describe the terms of the partnership between Dutrey's and Cardin & Miller, P.C.
ANSWER:
There exists no partnership between Dutrey's and Cardin & Miller, P.C.
12. Is there a written partnership agreement between Cardin & Miller, P.C. and Dutrey's.
ANSWER:
No.
13. If the answer to interrogatory number 12 is in the affirmative, please identify the
agreement.
ANSWER:
N/A
14. Is there any agreement which describes or states how fees generated by the providing of
pedorthic services at 290 East Pomfret Street will be divided?
ANSWER:
No.
15. If the answer to interrogatory number 14 is in the affirmative, please identify the
agreement.
3
ANSWER:
N/A
16. Do you have in your possession any documents which were created by First Choice?
Yes.
ANSWER:
17. Please identify all documents in your possession which were created by First Choice.
ANSWER:
A fax cover sheet and a form letter that is sent to insurance companies for provider
appeals.
18. Please identify all patients of Cardin & Miller, P.C. from the date it first provided
physical therapy services to the date of these interrogatories.
ANSWER:
Objection. Defendants object to this Interrogatory as being overly broad, unduly
burdensome and as not being reasonably calculated to lead to the discovery as admissible
evidence. Further, this Interrogatory seeks the discovery of confidential business
information and Defendant objects. Additionally, this Interrogatory seeks information
which is protected by law. The Plaintiff has not complied with the mandates of 45 C.F.R.
§ 164.512 (relating to disclosure). Disclosure of the answer to this interrogatory would
subject Defendants to the penalties contemplated by 42 USCA § 1320d-6.
19. Please identify all physical therapy patients of Cardin & Miller, P.C. who have been
referred to Cardin & Miller, P.C. by Brian Cardin in his work as a pedorthist at Dutrey's.
ANSWER:
None.
20. Does Cardin & Miller, P.C. have malpractice insurance?
ANSWER:
Cardin & Miller, P.C. (incorrectly referred to as Carden & Miller, P.C.) does not have
malpractice insurance. Brian Cardin, an individual and Steve Miller, an individual, have
4
malpractice insurance.
21. If the answer to interrogatory number 20 is in the affirmative, please identify the insurer,
the agent from whom you obtained the policy and the coverage dates of the policy.
ANSWER:
Objection. This Interrogatory is objected to as violative of Pa. R.P.C. § 4003.1 in that it
seeks information that would be inadmissible at trial and is not reasonably calculated to
lead to the discovery of admissible evidence.
22. If the answer to interrogatory number 20 is in the affirmative, does the policy cover
pedorthic services offered by Cardin & Miller, P.C.?
ANSWER:
Cardin & Miller, P.C. do not have malpractice insurance. The policy covering Brian
Cardin, an individual, does cover pedorthic services offered by Brian Cardin, an
individual.
AS TO OBJECTIONS
Dated: May ? , 2006 B
KEEFER WOOD ALLEN & RAHAL, LLP
Y Fg ric R. Ae
Attorney I.178277
415 Fallowfield Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
5
MAY-25-2006 THU 05:10 PM W14ILLR FAX No. 2435688
06-4 -2006. 01:81 FRWKEEFER-000,ALLER_LRAPAL P-004
T1Ta121181 T-004 P.181/012 F-1l1
I' "ROAN A. CAP-DIN, the undersigned, having the authority to sign as president of
Cardin 8t Miller Physical Therapy, P.C, aclatowledge that:
1 • z am an adult individual and one of the witnesses herein;
Z• The averments/responses set forth in the foregoing Answers to First Se[
of
Interrogatories of Plaintiff Propounded Upon Defendant are true and correct to the best of my
knowledge, information, and belief; and
3. I am aware that false statements herein are made subject to the penalties of 18 Pa.
C.S. § 4904, relating to unworn falsification to authorises.
Attorneys for Defendants
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
First Set of Interrogatories of Plaintiff Propounded Upon Defendant Cardin & Miller, P.C.
Physical Therapy this date by depositing a true and correct copy of the same in the United States
mail, first-class postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
B
Y
Eric R. Augu e
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL, TERM
CIVIL ACTION-EQUITY
ANSWERS TO REOUESTS FOR PRODUCTION OF DOCUMENTS OF PLAINTIFF
UPON DEFENDANT CARDIN & MILLER PHYSICAL THERAPY P.C.
General Objections
Defendant Cardin & Miller Physical Therapy, P.C. objects to any document request that
seeks documents covered by the attorney-client privilege or attorney work product. Without
waiver of those objections, Defendant's response to these specific requests are as follows:
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
RESPONSE:
To the extent the interrogatories have not been objected to, and only to the extent that
they have been responded to, the appropriate documentation will be provided.
2. All corporate records for Cardin & Miller, P.C.
RESPONSE:
Defendant Cardin & Miller, P.C. objects to this request in that it is overly broad and
unduly burdensome. The term "document" is identified as including "written, printed,
typed, recorded, or graphic matter, however produced or reproduced, including
correspondence, telegrams, other written communications, data processing storage units,
tapes, contracts, agreements, notes, memoranda, analysis, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams,
drawings, minutes of meetings, or any other writing (including copies of any of the
foregoing) regardless of whether you, your former or present counsel, agents, employees,
officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control." Such a request could cover hundreds or thousands of documents,
which is clearly overly broad and unduly burdensome. Additionally, to provide every
"document" is further objectionable on the basis that several documents could be
protected by attorney-client privilege.
3. All written communications with any individuals or entities which were referral sources
for First Choice.
RESPONSE:
Defendant Cardin & Miller, P.C. objects to this request in that it is overly broad and
unduly burdensome. The term "document" is identified as including "written, printed,
typed, recorded, or graphic matter, however produced or reproduced, including
correspondence, telegrams, other written communications, data processing storage units,
tapes, contracts, agreements, notes, memoranda, analysis, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams,
drawings, minutes of meetings, or any other writing (including copies of any of the
foregoing) regardless of whether you, your former or present counsel, agents, employees,
officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control." Such a request could cover hundreds or thousands of documents,
which is clearly overly broad and unduly burdensome. Additionally, to provide every
"document" is further objectionable on the basis that several documents could be
protected by attorney-client privilege.
4. Any documents you intend to introduce at the trial of this matter. To the extent that such
documents are known and have not been objected to, they will be provided.
RESPONSE:
Discovery in this matter is on-going and Defendant has not identified all such documents.
5. Applications for any insurance applied for by Cardin & Miller, P.C.
RESPONSE:
None.
2
6. All documents which reflect, refer or relate to the negotiation or execution of a lease for
the present business location of Cardin & Miller, P.C.
RESPONSE:
To the extent that they are not protected by attorney-client privilege or attorney work
product and subject to the objections stated in response no. 2, these documents will be
provided.
7. All documents which reflect or relate to income received from the providing of pedorthic
services during the period December, 2003 through January, 2006.
RESPONSE:
To the extent that they are not protected by attorney-client privilege or attorney work
product and subject to the objections stated in response no. 2, these documents will be
provided.
AS TO OBJECTIONS
Dated: May, 2006
KEEFER WOOD ALIEN & RAHAL, LLP
By
3
Attorney JAS. #78277
415 Fallowfield Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
MAY-25-2006 THU 05:10 PM CHWILL9 FAX No. 2435688
W24-2060 01188 FAOY-I(Et:FER,I000,ALlEL"HAI P. 001
?178126806 T-004 P.012/012 F-01
I, BRIAN D. CARDIN, the undersigned, having the authority to sign as president of
Cardin & Miller Physical Therapy, P.C. acknowledge that.
1. Y am an adult individual and one of the witnesses herein;
2. The a OlMents/responses set forth in the foregoing Answers to Requests for
Production of Documents of Plaintiff Upon Defendant are true rind correct to the best of my
knowledge, information, and belief; and
3. I am aware that false statements herein are -made subject to the penalties of 18 Pa,
C.S. § 4904, relating 10 unsworn Falsification to authorities.
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Requests for Production of Documents of Plaintiff upon Defendant Cardin & Miller Physical
Therapy, P.C. this date by depositing a true and correct copy of the same in the United States
mail, first-class postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By
Eric R. Auj
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE NIILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
NO. 2006-1759 CPS, TERM
CIVIL ACTION-EQUITY
ANSWERS TO FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT BRIAN D. CARDIN
1. Please identify any and all records in your possession which reflect, refer to the receipt of
money for pedorthic services provided by Brian Cardin at the Dutrey's Shoes facility
located at 28 North Hanover Street from December, 2003 through January, 2006.
ANSWER:
1099's for the years 2004 and 2005.
2. Did Dutrey Shoes Add, Inc. receive any money for pedorthic services provided by Brian
Cardin at the Dutrey's Shoes facility located at 28 North Hanover Street from December,
2003 through January, 2006?
ANSWER:
No.
3. If the answer to interrogatory number 2 is in the affirmative, please describe each amount
received, when received, from whom received and the service provided which generated
the receipt.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ANSWER:
N/A
4. If the answer to interrogatory number 2 is in the affirmative, please identify any and all
documents which reflect or relate to the receipt of any money for pedorthic services
provided by Brian Cardin.
ANSWER:
N/A
5. When did you first contemplate opening a physical therapy practice at 290 East Pomfret
Street, Carlisle, Pennsylvania?
ANSWER:
December, 2005.
6. Is there any agreement which describes or states how fees generated by the providing of
pedorthic services at 290 East Pomfret Street will be divided?
ANSWER:
No.
7. If the answer to interrogatory number 6 is in the affirmative, please identify the
agreement.
ANSWER:
N/A
8. Please identify any insurance coverages maintained by Brian Cardin during the period
December, 2003 through January, 2006 which policies would cover claims of malpractice
relating to the providing of pedorthic services.
ANSWER:
CNA policy number 0269682042 for the period 6/1/04 through 6/1/05..
9. Please identify any individual income tax returns you filed for the years 2003, 2004 and
2005.
2
ANSWER:
Objection. This Interrogatory is objected to as violative of Pa. R.C.P. No. 4003.1 in that
it seeks information and/or documents which would be inadmissible at trial and is not
reasonably calculated to lead to the discovery of admissible evidence.
10. Do you have in your possession any documents which were created by First Choice?
ANSWER:
No.
11. Please identify all documents in your possession which were created by First Choice.
ANSWER:
N/A
12. Please identify all physical therapy patients of Cardin & Miller, P.C. who have been
referred to Cardin & Miller, P.C. by Brian Cardin in his work as pedorthist at Dutrey's.
ANSWER:
None.
13. Identify all potential physical therapy referral sources with whom you discussed the
services to be offered by Cardin & Miller, P.C. prior to the effective date of your
resignation from First Choice.
ANSWER:
None.
14. Identify any records in your possession, custody or control which reflect, refer or relate to
the bank account for a real estate partnership known as Halifax Real Estate Partnership.
ANSWER:
Bank statements to include checking statements and deposits from when the account was
still at Waypoint Bank.
3
AS TO OBJECTIONS
KEEFER WOOD ALLEN & RAHAL, UP
Dated: May 2006 By
Eric R. A'ne
Attorney 1;.. #78277
415 Fallowfield Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
4
MAY-25-2006 THU 05;09 PM M14ILLER FAX No. 2435688
W24-2108' 08:38 FROM-KEEFER-EM.ALLELI.M rtTeiZaooa P-003
T-004 P.001/012 F-431
I, BRIAN b, CARDIN, the undersigned, acknowledge that:
1. I am an adult individual and one of the witnesses heroin;
2 The averments/responses set forth in the foregoing Answers to best Set of
Interrogatories of Plaintiff Propounded Upon Defendant are true and correct to the best of my
knowledge, information, ad belief; and
3. I am aware that WOO statements herein are made subject to the penalties of 18 Pa.
C.S. $ 4904, relating to unworn falsification to authorities.
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
First Set of Interrogatories of Plaintiff Propounded Upon Defendant Brian D. Cardin this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By,
r r
MCCUEN & ASSOCIATES, d/b/a IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation CUMBERLAND COUNTY, PENNSYLVANIA
Specialists,
Plaintiff, NO. 2006-1759 CIVIL TERM
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
CIVIL ACTION-EQUITY
Defendants. :
ANSWERS TO REQUESTS FOR PRODUCTION OF DOCUMENTS OF PLAINTIFF
UPON DEFENDANT BRIAN D. CARD
IN
General Objections
Defendant Brian D. Cardin objects to any document request that seeks documents
covered by the attorney-client privilege or attorney work product. Without waiver of those
objections, Defendant's response to these specific requests are as follows:
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
RESPONSE:
To the extent the interrogatories have not been objected to, and only to the extent that
they have been responded to, the appropriate documentation will be provided.
2. All corporate records for Cardin & Miller, P.C.
RESPONSE:
Defendant Cardin objects to this request in that it is overly broad and unduly burdensome.
The term "document" is identified as including "written, printed, typed, recorded, or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, contracts, agreements,
notes, memoranda, analysis, projections, indices, work papers, studies, reports, surveys,
diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any
other writing (including copies of any of the foregoing) regardless of whether you, your
former or present counsel, agents, employees, officers, insurers, or any other person
acting on your behalf, are now in possession, custody or control." Such a request could
cover hundreds or thousands of documents, which is clearly overly broad and unduly
burdensome. Additionally, to provide every "document" is further objectionable on the
basis that several documents could be protected by attorney-client privilege.
3. All written communications with any individuals or entities which were referral sources
for First Choice.
RESPONSE:
Defendant Cardin objects to this request in that it is overly broad and unduly burdensome.
The term "document" is identified as including "written, printed, typed, recorded, or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, contracts, agreements,
notes, memoranda, analysis, projections, indices, work papers, studies, reports, surveys,
diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any
other writing (including copies of any of the foregoing) regardless of whether you, your
former or present counsel, agents, employees, officers, insurers, or any other person
acting on your behalf, are now in possession, custody or control." Such a request could
cover hundreds or thousands of documents, which is clearly overly broad and unduly
burdensome. Additionally, to provide every "document" is further objectionable on the
basis that several documents could be protected by attorney-client privilege.
4. Any documents you intend to introduce at the trial of this matter.
RESPONSE:
Discovery in this matter is on-going and Defendant has not identified all such documents.
To the extent that such documents are known and have not been objected to, they will be
provided.
5. Applications for any insurance applied for by Cardin & Miller, P.C.
RESPONSE:
None.
2
6. All documents which reflect, refer or relate to the negotiation or execution of a lease for
the present business location of Cardin & Miller, P.C.
RESPONSE:
To the extent that they are not protected by attorney-client privilege or attorney work
product and subject to the objections stated in response no. 2, these documents will be
provided.
7. All documents which reflect or relate to income received from the providing of pedorthic
services during the period December, 2003 through January, 2006.
RESPONSE:
To the extent that they are not protected by attorney-client privilege or attorney work
product and subject to the objections stated in response no. 2, these documents will be
provided.
AS TO OBJECTIONS
KEEFER WOOD ALLEN & RAHAL, UP
Dated: May -TO, 2006 By 4?' -?
Eric R. Augu e
Attorney I . #78277
415 Fallowfield Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
3
MAY-25-2006 THU 05;10 PM CRDIW1l3
FAX No. 2435688
06-24-1008• 08:38 " Fk*kR IMMALLEN_LRANAL 7176125805 P. 006
t'0o4 P.011AU F- all
ANVICATION
I, BRIAN D. CARDIN. the undersigned, acknowledge that:
1 • Y am an adult individual and one of the witnesses herein;
2. The avernaonMhesponscs set forth in the foregoing Answers to Requests for
Production of Documents of Plaintiff Upon Defendant are true and correct to the best of my
knowledge, information, and belief, and
3. I am aware that false statements herein are made subject co the penalties of 18 Pa.
C.S. § 4904, relating to unworn falsification to authorities,
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Requests for Production of Documents of Plaintiff upon Defendant Brian D. Cardin this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By.
CARDIN & MILLER PC
PHYSICAL THERAPY
DATE
Cardin & Miller Physical therapy
290 East Pornfret St.
Suite 3
Carlisle, PA 17013
Phone: 717-245-0400
Fax: 717-243-5688
Provider Appeals
INSURANCE NAME & ADDRESS HERE
PO BOX 000000
City, State Zip
Re: Patient's Name
To Whore It May Concern.
Dates of service 00/00/0000 - 00/00/0000 for a total billed of $000.00 are being
denied due to no authorization. **+********
have an auth. Zf you do not explain why, begin explaining whether you do or do not
*************Here should be
00/00/0000 total visits patient has been se I am 3e?g all nical 0/0000 -
,view and consider payment for these services. notes so you can
Thank You.
Sincerely,
Tricia Farabaugh (or) Nikki Cardin
Office Manager
** *This letter should be sent when appealing claims denied by insurance. We should be
asking if this info can be faxed if so faxing should be done rather than mailing,?if faxed a
fax co ir?mation sheet should be attached and filed in pt chart, if mailed a co of this
letter should be put in pt chi. This should be printed out on letter head. ***
swot-
ac, rol
290 East Pomfret St,
Suite 3
6"PIR."
PIP.
I.er Phl?s?c
Cadisie, PA 17013
Phone Number. 717-245-0400
Fax Number. 717-243-5688
a? -rherapl?
f'AX TP-ANSMITTAL I=op_M
To:
Patient Name: From: Tricia Farabaugh
Attn: Date Sent:
Fax #: Number of Pages:
Mewcber #:
nob:
Claivu. #:
***CONT=IDV-NTIALLITY NoTICc-***
The Lw forwi,aKow covitq?wed Lw thts facs?wtiEte vwessa a is 1,e
9 gall prc%le9ed awd
cow ewtial Cw forw?.attow ?wtewded for the use of the t"i-vtduaL°Y
wot the lwtewded reetptewt you are hereby wot%fed ou shoklcl e"'tlt? above. I f Kok are
oltswl'bbtte, or copo this H&essage. Iw add%tlow, l °ha "t further dissevrr lv?a{?,
please wotl fO us ?? &K&edlatel b LCi f ve reoe.Wed this w?essage fm error,
or?giH,gl to us at the address qb cavEa the. the eboVe tdephowe ;,w-mber awd retkrw the
d states postal seMce......-r-hav,,Iq- You,.
MAY-18-2006 1235
SERVICE ORGANIZATION P. e1i01
C?A PURCHASING GROUP CNA Plaza CERTIFICATE OF INSURANCE MMS0.
Chicago. IL 80685 OCCURRENCE POLICY FORM
A.
B. Coverage ExWvalona:
C. WORKPLACE LIABILITY Coverage part C. Workplace Liebil0y does not apply If Coverage part D. General
Uab* is made part of this poly.
Work lace Liabil Included in A. PL limit shown above
Fire & Water al Liabif Included in A. PL limit shown above subject to $150,000 sub4imit
Personal Liablifty
$1,000,000 a re ate
D. GENERAL LIABILITY Coverage part D. General Liability does not apply if Coverage pan C. Workplace
Liability is made pan of this policy.
General Liability (GL none none
Hired Auto & Non Owned Auto none
Fire & Water L Liability none none
Personal Liability
G-123846-C37
Master Policy 0 188711433
document in a place. It and proof payment are evidence of your insurance coverage.
f" tl?
Chairman of the Hoard
DLAOM-
e?A VAJ*4-w.
Secretary
G-141241 -A (0712oo1) Coverage Change Date: Endorsement Change Date:
? CORRECTED (if Checked)
PAYER'S name, street addros
city
,
, nd telephone no.
Dutrey I s ShoeInc 1 Rents 2 Royalties
. $ = DMB No 1?5-0t 15
2 6 N. . Hanover 3 other income 4 Federal ?e tax withhaly 20 0
Carlisle PA 173:
$
5
$ ?
Miscelianeo
Fishing bon proceeds
6 Madicai et health cars Pmts ?
Incom'
PAYERS Federal identlfheation numbeNTS identification rxsnter
2 3 -18 95 2 4 5
35-58-0399 7 Nonem
Pore. o°mpan"o°" s
8 Substitute in
of
'"?
con„ 1099'M(=
RECIPIENTS name s 2 9 0 8 5.8 0 s or interest
«
py
Brian Cardin
9 Payer made direct plas Of
(5.000 or more of oonsumar
$
10 Crop ihsuranpa For R
j
pie
Thin t
0 4 Wertz Avenue Products to a buyer
.. for resale ? ?
Excess prods
$ an<
eo
r
1
Mechanicsburg PA attorney a
t? m°tr
15a Section 409A deferrals 15b Section
409A ncorne n°onne.
Ota ?t3 eey?
e
sal
Ar eounions)
l rxxnber (s°° instructions) 16 State tax withheld
$ 17 State/Payers
state no. b
report
18 State ioome
...............
1099-MISC
DXA (keep for our records S
y )
PAYER s nrrhe weet,ddr°w ? CORRECTED (if checked)
ally, see. ZIP coda, and tslepixine no. 1 Runs
Dutrey's Shoes ADD, Inc. is
26 N. Hanover Street
Carlisle PA 17013
PAYER'S Federal identification number RECIPIENTS parhtification number
23-1895245 035 58 0399
RECIPIENTS name
Brian Cardin
104 Wertz Avenue
Mechanicsburg PA
Account number (see instructions)
Form 1
DXA
Instructions for Recipient
Account number. May show an account or other unique number the
payer assigned to distinguish your account.
Amounts shown nay be subject to saH-employment (SE) tax. 9 you not income
SEfromlaxtax on Scle?dule SE is UW Or more (Fans )040" ; pubmust SO a . 533, Self?Em rM 00A1?° your
for
Moro ihforrration. N no income or social seoully and Medicare taxes were
willihow and
Estimated TTax for Individuals these payments, sae Form 1040 ES,
Individuals must report as explained below. Corporations. fiduciaries, or
PCPs report to amounts on the proper We of you tax rerun,
Boxes 1 and 2. Report rents from real estate on Schedule E (Form 1040). If you
Provided significant services to the tenrtt, sold real estate as a business or
rw*d 040 . For royalties Prop" as a business, report on Sdo" C or C-EZ (Form
1
Other D' royuies an times anal, and ion ore. sae Pub. 544, Sales and
apostions of Assets.
Box 3
* the . G-Ily, report this amount on the'Ogw income" ire of Form 1040 and
Payment. The amount shown may be payments received as the beneficiary
u><a ampbyes, r prizsa. awards, taxable damages. InTw gaming profits. or
othe taxable m0.8 ss Pets. 525. Taxable and Nontanapb iooms. If lt is trade
or lxniep Income, report this amount on Sdedule C. C-EZ, or F (Form 1040).
Box 4. Shows backup withholding or withholding an kxoan gaming profits.
Generally, a Payer must backup withhold at a 28% rate if you did not tarnish
oY u+? t>Wyar ideMifiation hunger. See Form W-9, Request for Taxpayer
tion Number and Cerfifireflon, for more information. Report On
amount on
Your income tax return as tax wM held-
Box S. An amount in this box means the fishing boat operator considers you
self-empbyed. Report this amount on Schedule C or C-EZ (Form 1040). See
Pub. 595, Tax Highlights for Commerdal Fisher en.
Box 6. Report On Schedule C or C-EZ (Form 1040)
3 Other Income
s
5 Fishing boat prods
s
7 Nora nPloyea compensation
........................
Department of the Treasury - Internal Reverse Serv
2 Royalties
S
4 Federal income tax withheld
s
6 Medical d health care pmts
Substitute payments in Rau
of dividends or interest
Crop insurroa proceeds
il Proceeds paid to
an omey
b Section 409A iroome
Form 1099-MIs,
Copy
To be file
wit'
recipient'
state Incom
tax returr
whe
requirec
v J . V V
Payer made direct sales of S
$5,000 or more of consumer
Products to 1 buyer
(r for Monte ? ? s
Section 409A deferral
IV State tax wkhhheld
$ 17 state/payees stets no. 18 State income
--------------------------------
-- -----------------------------
s
Department of the Treasury - Internal Revenue Samic
Box 7. Shows noremployysa compensation. If you we in the treds or business
POf C
YMNO in this 8tO'W fish, bbox mc an SE show cash You received for the sale or fish. if
o
r F (Form 1040), and complete Sct?uu a SE( ? ? . SY ?ived this
form
and ?d of Form W2 because the p2W did not consider you an withhold income tax or
P2Yar $ocial "Why and Medicare hens. Czrftd
°
if youbeRsvs the form is ioorrect or has been issued in umor. lf you
taxes. fS for inforrma on how to report amount on Rne?ty and Medicare
Port any social
Box 8. stows substitute Payments in reu of dividends or tax-exempt interest
received by you broker on you behalf as a result of a ban of you sec i tin.
Report on the "Other income" file of Form 1040.
B
you ox 9. If dedied. 55,000 or more of sales of eonsurner Products was pap to
t n buY-4w9n ?R?mIU?', or other basis. A dollar moue does not
Products on Schedule C or ( -E (FF( any 1090), income from your asie or these
Box 10. Report this amount on line 8 of Sdedule F (Form 1040).
Box 13. Shows you told compensation of excess golden parachute auelect to a 20% excise tax. See to Form 1040 instrudions for where ?r poorrt.
Box 14. Stows gross proceeds paid to an attorney in connection with legal
services. Report only the taxable part as hoorne on your return.
Box 1 d corru Shows current new deferrals as a norampioyse under a section 409A nonquardied deferre also be reported s°tan (NODC) Wen• My eamigs on asroM and prior year deferrals must
Box 16b. Shows income as a nonemptoyee under a NODC plan that does not most
to requirements of section 409A. This amour is also included in box 7 as nmsmployes
compensation. Any amount included in box 152 that is currently taxable is also included n IN
box. This income is also subject to a substantial additional tax to be reported an Form 1040.
Sae "Total Tex" in the Form 1040 instructions.
Boxes 16-18. Shows state or local income tax Withhold from the payments
OMB No. 1545-0115
200%
Miscellaneous
Incom(
nr rm-b name, street address, dry. slats. ZIP Cow, and .?
Dutrey's Shoes ADD new
Inc.
26 N. Hanover Street
Carlisle PA 17013
PAYER'S Federal identification number
I RECIPIENT S itlerMifigPion number
23-1895245 035-58-0399
RECIPIENTS name Check I. eruer ssparete first and last names.
Brian Cardin
Street address (indudinp apt no.)
104 Wertz Avenue
City, state, and ZtP code
Mechanicsburg PA
Amount number (optional)
Form
DXA
ICU
1 Rents
s
3 Other income
i
5 Fishing boat W.,.
s
7 PbM Compensation
s 14947.22
9 Payer maw direct sales of
35-Wo or more of =Uunw
Preduds to a buyer
TMenO for resale ? ?
7 5 State tax withhold
2nd TIN Not, $
----•-•---•••--.....-•••-•---
2 Royattim
$
I
Ow No. 15/5.0115
4 Federel income tax witlrrid 2004
$ Miscellaneous
8 Medical3 nesfin Care pmts.
S Income
8
Swxuute Paynrle - lieu Form 0?'BAISC
«« p
$ For
iye
Fo r
10 Crop Mrural" Proceeds For Privacy Act
and Pq*rWork
Gross Proceeds paid to Reduction Act
Notice, see the
1ey 2004 General
Instructions for
Forms 1099,1098
7 StatslP
aysi's state no. ,
5498 and G.
18 State income
...............................
of the Treasury - knernal Revenue Service
I I
MCCUEN & ASSOCIATES, d/b/a IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation CUMBERLAND COUNTY, PENNSYLVANIA
Specialists,
Plaintiff, NO. 2006-1759 CIVIL TERM
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and ;
DUTREY' S SHOES ADD, INC.
CIVIL ACTION-EQUITY
Defendants.
ANSWERS TO FIRST SET OF INTERROGATORIES OF PLAINTIFF
PROPOUNDED UPON DEFENDANT DUTREY'S SHOES ADD INC.
1. Did Dutrey Add, Inc. enter into a written lease for a portion of that property known as 290
East Pomfret Street, Carlisle, Pennsylvania?
ANSWER:
Yes, a sublease.
2. If the answer to interrogatory number 1 is in the affirmative, please identify the lease
agreement.
ANSWER:
Sublease with Mildin, Inc. dated January 27, 2006.
3. Has Cardin & Miller, P.C. entered into any written agreement with Dutrey Add, Inc.?
ANSWER:
See answer to interrogatory number 2.
4. If the answer to interrogatory 3 is in the affirmative, please identify the lease agreement.
ANSWER:
This is the same question as interrogatory number 2. Accordingly, see answer to
interrogatory number 2.
5. Does Cardin & Miller, P.C. and Dutrey Add, Inc. divide or share a
the providing of pedorthic services? ny fees generated by
ANSWER:
No.
6. If the answer to Interrogatory number S is in the affirmative, please de
generated by the providing of pedorthic services are shared or divided scribe how fees
ANSWER:
N/A
7. Please identify any and all records in your possession which ect, refer Or receipt of money for pedorthic services provided by Brian Cardin at the Dutrelate to the
facility located at 28 North Hanover Street from December, 2003 through ey' Shoes
ANSWER: January, 2006.
Brian Cardin worked as an independent contractor to Dutrey's Shoes Add, Inc. When
customer received Pedorthic services from W. Cardin, the income generated fo that a
service was earned by W. Cardin and paid to W. Cardin, evidenced b co for that
issued to Brian Cardin as an independent contractor for 2004 and 2005. pees of 1099s
8• Did Dutrey Shoes Add Inc,
receive any money for pedorthic services provided by Brian
Cardin at the Dutrey's Shoes facility located at 28 North Hanover Street f
2003 through January, 2006? from December,
ANSWER:
No.
2
9. If the answer to interrogatory number 8 is in the affirmative, please descri
be received, when received, from whom received and the service provided which each g neerratent
the receipt. generated
ANSWER:
N/A
10. If the answer to interrogatory number 8 is in the affirmative, please identify an
documents which reflect, refer or relate to the receipt of any money for pedorthic servi
provided by Brian Cardin. services
ANSWER:
Please refer to the answer to interrogatory number 7.
11. Please identify any and all documents which reflect, refer or relate to the decision
relocate the business of Dutrey's Shoes Add, Inc. to 290 East Pomfret Street, Carlisle,
Pennsylvania.
ANSWER:
Objection. This interrogatory is objected to as violative of Pa. R.C.P. § 4003.1 in that
it
seeks information which would be inadmissible at trial and is not reasonably calculated
lead to the discovery of admissible evidence. to
12. Please describe the terms of the partnership between Dutrey's and Cardin &
1VLller, P.C.
ANSWER:
There is not a partnership between Dutrey's and Cardin & Miller, P.C.
13. Is there a written partnership agreement between Cardin & Miller, P.C. and
Dutrey's?
ANSWER:
No.
14. If the answer to interrogatory number 13 is in the affirmative, please identify the
agreement.
3
ANSWER:
N/A
15. Is there any agreement which describes or states how fees generated by the providin of
pedorthic services at 290 East Pomfret Street will be divided? g
ANSWER:
No.
16. If the answer to interrogatory number 15 is in the affirmative, please identify the
agreement.
ANSWER:
N/A
17. Please identify any insurance coverages maintained by Dutrey's during the period
December, 2003 through January, 2006 which policies would have covered claims of
malpractice relating to the providing of pedorthic services.
ANSWER:
Objection. Defendant objects to this interrogatory as being overly broad, unduly
burdensome and as not being reasonably calculated to lead to the discovery of admissible
evidence.
18. Please identify all of your employees as of December, 2005.
ANSWER:
Objection. This interrogatory is objected to as violative of Pa. R.C.P. § 4003.1 in that it
seeks information which would be inadmissible at trial and is not reasonably calculated to
lead to the discovery of admissible evidence.
4
MAY-25-2006 THU 05:10 PM CRpIwIM FAX No. 2435688
06-14-2006 08:38 FRONEEFERAM,ALLEN,.UWL ?116125806 T-004 P.008/012
YRIMA7'ION
1, YORK DUTREY, the undersigned, acknowledge that
1• I am an adult individual and one of the wamesses heroin;
2. The avermentVresponses set forth in the foregoing ,Answeis to Vim Set of
IntmTogatories of Plaintiff Propounded Upon Defendant are true and correct to the best of my
knowledge, information, and belief; and
P. 008
F-838
3. 1 am aware that false statements herein are made subject to the penalties of 18 Pa.
C3. § 4904, relating to unworn falsification to authorities.
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
First Set of Interrogatories of Plaintiff Propounded Upon Defendant Dutrey's Shoes Add, Inc.
this date by depositing a true and correct copy of the same in the United States mail, first-class
postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By.
6
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & Mii .T ER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
ANSWERS TO REOUESTS FOR PRODUCTION OF DOCUMENTS OF PLAINTIFF
UPON DEFENDANT DUTREY'S SHOES ADD INC.
General Objections
Defendant Dutrey's Shoes Add, Inc. objects to any document request that seeks
documents covered by the attorney-client privilege or attorney work product. Without waiver of
those objections, Defendant's response to these specific requests are as follows:
1. All documents identified in your response to the First Set of Interrogatories of Plaintiff
propounded upon you.
RESPONSE:
To the extent the interrogatories have not been objected to, and only to the extent that
they have been responded to, the appropriate documentation will be provided.
2. Any documents you intend to introduce at the trial of this matter.
RESPONSE:
Discovery in this matter is on-going and Defendant has not identified all such documents.
To the extent that such documents are known and have not been objected to, they will be
provided.
3. All documents which reflect, refer or relate to any business relationship or interaction
between you and Cardin & Miller, P.C.
RESPONSE:
Defendant Dutrey's Shoes Add, Inc. objects to this request in that it is overly broad and
unduly burdensome. The term "document" is identified as including "written, printed,
typed, recorded, or graphic matter, however produced or reproduced, including
correspondence, telegrams, other written communications, data processing storage units,
tapes, contracts, agreements, notes, memoranda, analysis, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams,
drawings, minutes of meetings, or any other writing (including copies of any of the
foregoing) regardless of whether you, your former or present counsel, agents, employees,
officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control." Such a request could cover hundreds or thousands of documents,
which is clearly overly broad and unduly burdensome. Additionally, to provide every
"document" is further objectionable on the basis that several documents could be
protected by attorney-client privilege.
4. All documents which reflect, refer or relate to any income received by you from the
providing of pedorthic services during the period December, 2003 through January, 2006.
RESPONSE:
To the extent not previously objected to and to the extent that they are not covered by
attorney work product, these documents, if any, will be provided.
5. All documents which reflect, refer or relate to any income received by you from the
providing of pedorthic services during the period January, 2006 to the present.
RESPONSE:
To the extent not previously objected to and to the extent that they are not covered by
attorney work product, these documents, if any, will be provided.
2
6. All policies of insurance in place for Dutrey's Shoes Add, Inc. as of December, 2005.
RESPONSE:
Objection. This request for production of documents is objected to under Pa. R.C.P.
4003.1 in that it seeks documents which would be inadmissible at trial and is not
reasonably calculated to lead to the discovery of admissible evidence.
AS TO OBJECTIONS
Dated: May 30 , 2006
KEEFER WOOD AU EN & RAHAL, LLP
a,?
Eric R. August'
Attorney I.D 78277
415 Fallow field Road, Suite 301
Camp Hill, PA 17011
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
3
MAY-25-2006 THU 05:10 PSI CRIWIM FAX No. 2435688 P. 009
05724-2008• 08:38 FR*KEEFER,MOD, ALLEI-A_,RANAL 7178128808 T-004 P-010/012 F-831
F'iCATION
I, JOHN DUMY, the undersigned, acknowledge that:
1. I am an adult individual and one of the witnesses herein;
2. The averments/responses set forth in the foregoing Answers to Requests for
Production of Documents of Platutiff Upon Defendaut are true and correct to the best of my
knowledge, information, and belief; and
3. I am aware that false statements herein are made subject to the penalties of 18 Pa,
CS, § 4904, rely ft to unworn falsification to authorities.
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Requests for Production of Documents of Plaintiff upon Defendant Dutrey's Shoes Add, Inc.
this date by depositing a true and correct copy of the same in the United States mail, first-class
postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By,
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
Articles of Incorporation-For Profit
(15 Pa.C.S.)
Entity Number _.__ Business-stock (§ 1306)
x M ge"'ent f 903)
(§ 2703)
-. Business-nonstock (12102) Professional
- Busitess-statutory close (12303) Insurance (§ 3 3 10 11)
- Cooperative (§ 7102)
F72ddrmess Wood Allen & Rahal, LLP, Attn: John A. Felchtel, Esq. Doname and address you enter ?p he
the left.
alnut StreetP. 0. Box 11963 State ZipCodc
Harrisburg, PA 17108-1963
. Fee: S 125
Filed in the Department of State on
Secretary of the Commonwealth
In compliance with the requirements of the applicable provisions (relating to corporations and unincorporated
associations), the undersigned, desiring to incorporate a corporation for profit, hereby states that:
i. The name of the corporation (corporate designator requires; }.e., "corporation incor
..
; "limited
"comparoi" or any abbreviation. "Professional corporation,, or "P. C' J: porated
Mildin, Inc.
"jukall"'33 of
acceptable) or (b) name of its commercial registered office provider and the county o?nuei se box, alone, is not
(a) Number and Street
City State Zip County
210 Walnut Street, P. O. Box 11963, Harrisburg, PA 17108-1963 Dauphin
(b) Name of Commercial Registered office Provider
County
clo:
3. The corporation is incorporated under the provisions of the Business Corporation Law of 1988.
4. The aggregate number of shares authorized:
10,000
9
?o
w?
hj :£ !If! 62 Area MIZ
DSCB. 15-1306,210223032702/2903/3101/7102A-2
s. The name and address, including number and street, if any, of each in
sign below): corporator (al! tncorporotors r,lrtrt
Name
John A Falchtei 210 Walnut g Address
treat, R O. Box 11983, Harrisburg, PA 17108-1963
6. The specified effective date, if any: Upon Ring
month/day/year hour, if any
7. Additional provisions of the articles, if any, attach an 8'14 by 1 I sheet.
Statutory claw corporation only. Neither the corporation nor any shareholder shall make an offering of any of
its shares of any class that would constitute a "public offering" within the meaning of the Securities Act of
1933 (I5 U.S.C, 77a et seq.)
9. Cooperative corporations only..
Complete and strike out inapplicable term:
The common bond of membership among its members/shambolders is:
IN TESTIMONY WHEREOF, the in
has/have signed these Articles of Incorporation this
-1-?--- day of November 2005
Business Entity
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By Business Name l ' _
By Business Entity ID Date: 5/31/2006 Filing History ! Cwal G-
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Verify Certification view the Business Entity's ' 19"Ie J N
Filing History)
Business Name History
Name Name Type
Mildin Inc. Current Name
Professional Corporation - Domestic - Information
Entity Number: 563191
Status: Active
Entity Creation Date: 11/29/2005
State of Business.: PA
Registered Office Address: 210 Walnut st PO BOX 11963
Harrisburg PA 17108
Mailing Address: No Address
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Copyright ® 2002 Pennsylvania Department of State. All Rights Reserved.
Commonwealth of PA Privacy Statement
http://www.corporations.state.pa.us/corp/soskb/Corp.asp?2416873 5/31/2006
AGREEMENT OF SUBLEASE
THIS AGREEMENT, made this e-9' day of January 2006, by and between MILDIN, INC. hereinafter
called Sublessor,
and
DUTREY'S SHOES, A.D.D., Inc. hereinafter called Sublessee.
WHEREAS, Mildin, Inc., has entered into a lease agreement dated January 12, 2006 with Castles Land Company to
lease 4,932 square feet of an area consisting of a portion of the building known and numbered as 290 East Pomfret Street,
Carlisle, Pennsylvania to have and to hold for the term of 60 months beginning on the first day of March 2006 and ending on
the 29"' day of February 2011. A copy of said lease agreement is attached hereto and made a part hereof; and
WHEREAS, Sublessee desires to sublease a portion ofthe premises which Sublessor has leased from Castles Land
Company under the terms of its lease dated January 12, 2006.
PREMISES WITNESSETH: That Sublessor, in consideration of the rents hereinafter covenanted to be paid by
and the Sublessee, and in consideration of the covenants hereinafter stipulated to be performed by the
USE Sublessee and in consideration of the mutual covenants and agreements hereinafter mentioned, does
hereby demise, let and lease unto the Sublessee, for the purpose of retail shoes sales/fitting and as otherwise
indicated on Exhibit A of the lease agreement between Castles Land Company and Mildin, Inc. an area
consisting of approximately 2500 square feet at premises leased by Mildin, Inc. at 290 East Pomfret Street,
Carlisle, Pennsylvania. Said subleased premises to be as generally set forth on Exhibit A attached hereto
and made a part hereof.
TERM 1. Said premises are leased for a term of Sixty Months (60) beginning March 1, 2006 and ending
February 29, 2011 upon the conditions hereinafter set forth.
RENT 2. The Sublessee shall pay to the Sublessor as rent for the leased premises during the term of
this lease the total sum of One Hundred Thirty-Two Thousand Dollars ($132,000.00), payable in monthly
installments of Two Thousand Two Hundred Dollars ($2,200.00) with the first payment due on March 1,
2006 and each successive payment due and payable the first day of each calendar month during the term of
this lease.
RENEWAL 3. Should Sublessor exercise its rights to renew the lease between Sublessor and Castles Land
Company as set forth in their lease dated January 12, 2006 Sublessee shall have the right and privilege to
renew this sublease for a similar term upon the same terms and conditions as provided for in the original
sublease, except that the rent to be paid during any renewal period shall be negotiated between the parties
and if the parties are unable to agree, then the renewal period shall be null and void. As a prerequisite to
exercising such renewal option, Sublessee will give Sublessor notice in writing of Sublessee's desire to
renew the term of this lease at least ninety (90) days prior to the expiration of the initial term of this lease.
LATE AND 4. A late charge of ten percent (10%) of the amount of rent due for the monthly rental period
SERVICE shall be assessed for any payment not made within ten (10) days after the date it is due and a she CHARGES charge of Twenty-Five Dollars ($25.00) will automatically be made for each instance in which a check
is returned unpaid by the Sublessee's bank for any reason whatsoever. If Sublessee pays by personal
check and more than one check is returned for insufficient funds or for any other reason, Sublessor has
the right to demand cash, a certified check, cashier's check or money order in payment of full future
rents.
SPECIAL S. A. Sublessee shall abide by all the provisions of the lease dated January 12, 2006
PROVISIONS between Castles Land Company and Mildin, Inc. including but not limited to the term and
provision set forth in paragraph 21 of said lease agreement and the Sublessee agrees to maintain
liability insurance in the amount of One Million Dollars for personal injury and One Million
Dollars for property damage for each occurrence on said premises.
B. Sublessee agrees to pay to Sublessor as additional rent, 50% of the additional real
estate taxes which Sublessor is obligated to pay under the terms of its lease dated January 12,
2006 with Castles Land Company.
C. Sublessor shall be responsible for and shall pay all utilities at the premises.
SUBLESSEE'S 6. Sublessee covenants and agrees that he will, without demand:
DUTIES
RENT A. Pay the rent and all other charges herein reserved as rent, on the days and times that
the same are made payable, without fail, and if Sublessor shall at any time or times accept said
rent or rent charges, or other required payments, after the same shall become due and payable,
such acceptance shall not excuse delay upon subsequent occasions, or constitute or be construed
as a waiver of any of Sublessor's rights, including Sublessor's right of distraint and other process.
GOOD ORDER B. Keep the demised premises in good repair during the term of this lease,
and REPAIR reasonable wear and tear and damage by accidental fire or other casualty not occurring through
negligence of Sublessee or those employed by or acting for Sublessee alone excepted. The
Sublessee agrees to surrender the demised premises in the same condition in which he has herein
agreed to keep the same during continuance of this lease.
GOOD ORDER C. Keep and maintain in good and substantial repair and in good, safe and
and REPAIR sanitary condition at their own cost and expense, the interior of the leased premises. Sublessee
agrees to perform all minor repairs such as replacement of light bulbs, ballasts, faucet washers,
etc. Sublessee further agrees to notify Sublessor immediately of mechanical malfunctions,
changes or any other condition which is of a major consequence.
ORDINANCES D. Comply with any requirements of any of the constituted public authorities, and
and with the terms of any statute of the Commonwealth of Pennsylvania or the federal government
REGULATIONS or local ordinance or regulation applicable to Sublessee or their use of the demised premises and
save Sublessor harmless from penalties, fines, costs or damages resulting from failure to do so.
Sublessee shall be responsible for obtaining from the proper municipal, county, state and other
authorities such permits as may be required for the operation of a shoe store, including all costs
associated therewith. Sublessee agrees to correct any and all deficiencies found as a result of any
inspections performed by any of the constituted public authorities aforesaid and agrees to pay the
costs thereof.
TAXES G. Pay any and all taxes due as a result of the operation of said business.
CONDUCT OF H. That it will not any BUSINESS demised premises, and will not carry
on any unlawful or business which will endanger the buildings from fire
or cause a forfeiture of any fire insurance that the Sublessor has or hereafter may have on the
buildings.
7. Sublessee covenants and agrees that he will do none of the following things without the
consent, in writing, of Sublessor first had and obtained:
AFFECT A. Do or suffer to be done any act, matter or thing objectionable to the fire
SUBLESSOR'S insurance companies, whereby the fire insurance or any other insurance now in force or
INSURANCE hereafter to be placed on the demised premises, or any part thereof, or on the buildings of which
the demised premises may be a part, shall become void or suspended, or whereby the same shall
be rated as a more hazardous risk than as at the date of the execution of this lease, or employ any
person or persons objectionable to the fire insurance companies, or carry or have any explosive
matter of any kind in and about the demised premises, and should any act or neglect of the
Sublessee or the nature of Sublessee's business cause an increase or increases in fire insurance
premiums upon the demised premises and/or the buildings of which the demised premises are a
part due to an increase in the rate of fire insurance in excess of the rate on the demised premises at
the time of the making of this lease, Sublessee agrees to pay to Sublessor as additional rent said
increase or increases.
PERSONAL 8. Sublessor shall not be responsible for damage from any cause to personal property
PROPERTY Sublessee in the leased premises, and Sublessee shall be required to carry his own insurance on such
personal property.
INDEMNI- 9. Sublessee will indemnify the Sublessor from all claims demands to person or property arising from or in any manner connected with thOccupancy or ydamages of the eased
premises by Sublessee, and from any and all other claims, demands, liens, damages, fines or penalties of
whatever name, nature or kind, in any way or manner chargeable to or payable for, or in respect to the use,
occupancy or ownership of the leased premises, or from any act or omission of the Sublessee, their
servants, agents, representatives, tenants, guests, invitees, licensees, customers, or any other person, firm or
corporation in or about or adjacent to the leased premises, except insofar as the negligence ofthe Sublessor
is the proximate cause of such claims, demands, liens, damages, fines or penalties. Sublessee will pay all
costs, expenses and attorney's fees incurred by or imposed on the Sublessor in prosecution or defense of
any suit, action or proceeding predicated upon an alleged breach of any undertaking by the Sublessee under
the terms of this Lease, or for or which the Sublessee has covenanted to indemnify the Sublessor under the
terms of this Lease, or would be bound by law to indemnify the Sublessor.
Sublessee shall bear, pay and discharge, when and as the same become due and payable, all
judgments and lawful claims for damages or otherwise against Sublessor or his property arising from
injury or damage to the person or property of Sublessee, or of any clerk, agent, employee, servant,
invitee, customer, licensee or visitor upon the demised premises, or the sidewalks on or adjacent to said
property, including injury and damage caused by the operation of Sublessee's business or by fixtures,
machinery, apparatus or appliances in or upon the demised premises; and will assume the burden and
expense of this lease, and will protect, indemnify and save harmless Sublessor, his agents, servants,
employees, and the public at large, by reason of or on account of the use or misuse of the premises
hereby leased, or any sidewalk on or adjacent to the said premises or any part thereof.
FIRE 10. In the event of the destruction of the demised premises by fire, water damage, governmental
action or acts of God, then:
A. In the event that the demised premises are totally destroyed or so damaged by fire or
other casualty not occurring through fault or negligence of the Sublessee or those employed by or
acting for him, that the same cannot be repaired or restored within a reasonable time, this lease
shall absolutely cease and determine, and the rent shall abate for the balance of the term.
B. If the damage caused as above be only partial and such that the premises can be
restored to the then condition within a reasonable time, the Sublessor may, at his option, restore
the same with reasonable promptness, reserving the right to enter upon the demised premises for
that purpose. The Sublessor also reserves the right to enter upon the demised premises whenever
necessary to repair damage cause by fire or other casualty to the buildings of which the demised
premises are a part, even though the effect of such entry be to render the demised premises or a
part thereof untenant-able. In either event, the rent shall be apportioned and suspended during the
time the Sublessor is in possession, taking into account the proportion of the demises premises
rendered untenantable and the duration of the Sublessor's possession. If a dispute arises as to the
amount of rent due under this clause, Sublessee agrees to pay the full amount claimed by
Sublessor. Sublessee shall, however, have the right to proceed by law to recover the excess
payment, if any.
C. Sublessor shall make such election to repair the premises or terminate this lease by
giving notice thereof to Sublessee at the ]eased premises within thirty(30)
Sublessor received notice that the demised premises had been destroyed ordadays om the da
other casualty.
maged by fire oy
r
D. Sublessor shall not be liable for any damage, compensation or claim by reason of
inconvenience or annoyance arising from the necessity of repairing any portion of the building,
the interruption in the use of the premises, or the termination of this lease by reason of destruction
of the premises.
E. The Sublessor has let the demised premises in its present condition and without any
representations on the part of the Sublessor. It is understood and agreed that Sublessor is under
no duty to make repairs or alterations at the time of letting or at any time thereafter, except as
otherwise provided for in this agreement.
DEFAULT 11. If the Sublessee:
A. Defaults in the payment of rent, or any additional rent, or defaults in the performance
of any other covenants and conditions contained herein, Sublessor may give notice of such default
and if Sublessee does not cure it any such default within sixty (60) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), then Sublessee may terminate
this lease on not less than sixty (60) days notice to Sublessee. On the date specified in such notice
the term of this lease shall terminate and Sublessee shall then quit and surrender the premises to
Sublessor, but Sublessee shall remain liable for the balance of the rental payments due hereunder.
B. Vacates the demised premises, or removes or attempts to remove, or manifests an
intention to remove any goods or property therefrom otherwise than in the ordinary and usual
course of business, without having first paid and satisfied the Sublessor in full for all rent and
other charges then due or that may thereafter become due until the expiration of the term above
mentioned, or
C. Becomes insolvent or makes an assignment for the benefit ofcreditors, or ifa petition
in bankruptcy is filed by or against the Sublessee, or a bill inequity or other proceeding for the
appointment of a receiver for the Sublessee is filed, or if proceedings for reorganization or for
composition with creditors under any state or federal law be instituted by or against Sublessee, or
if the real or personal property of the Sublessee shall be sold or levied upon by any Sheriff,
Then and in any or either of said events, there shall be deemed to be a breach of this lease, and thereupon
and without entry or other action by Sublessor:
1. The rent for the entire unexpired balance of the tern of this lease, as well as all other
charges, payments, costs and expenses herein agreed to be paid by the Sublessee, including but
not limited to legal expenses and attorney's fees, including those incident to the recovery of
possession, brokerage and/or putting the demised premises in good order or for preparing the
same for re-rental, or at the option of Sublessor any part thereof, and all costs, shall, in addition to
any and all installments of rent already due and payable and in arrears, and/or any other charge or
payment herein reserved, included or agreed to be treated or collected as rent, and/or any other
charge, expense or cost herein agreed to be paid by the Sublessee which may be due and payable
and in arrears, be taken to be due and payable and in arrears as if by the terms and provisions of
this lease, the whole unpaid balance of unpaid rent and other charges, payments, taxes, costs and
expenses were on that date payable in advance; and if the lease or any part thereof is assigned, or
if the premises or any part thereof is sublet, Sublessee hereby irrevocably constitutes and appoints
Sublessor as Sublessee's agent to collect the rents due by such assignee or Sublessee, and apply
the same to the rent due hereunder, without in any way affecting Sublessee's obligation to pay any
unpaid balance of rent due hereunder, or in the event of any of the foregoing at any time at the
option of Sublessor;
2. This lease and the terms hereby created shall determine and become absolutely void
without any right on the part of the Sublessee to save the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken; whereupon Sublessor shall be
entitled to recover damages for such breach in an amount equal to the amount ofrent reserved for
the balance of the term of this lease, and other charges, payments, costs and expenses referred to
in subparagraph 1 hereof.
REMEDIES 12. In the event of any default as above set forth in
on Sublessor's behalf; at Sublessor's option: paragraph 18, the Sublessor, or anyone acting
A. May without notice or demand enter the demises premises for the purpose of
distraining or levying on any goods or chattels therein.
B. May lease said premises or any part or parts thereof to such person or persons as
may, in Sublessor's discretion, seem best, and the Sublessee shall be liable for any loss of rent for
the balance of the then-current term.
C. If rent and/or any charges hereby reserved as rent shall remain unpaid on any day
when the same ought to be paid, Sublessee hereby empowers any proth onotary or attorney of any
court of record to appear for Sublessee in any and all actions which may be brought for rent
and/or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by the
Sublessee, and/or to sign for Sublessee an agreement for entering in any competent court an
amicable action or actions for the recovery of rent or other charges or expenses, and in said suit or
in said amicable action or actions, to confess judgment against Sublessee for all or any part of the
rent specified in this lease and then unpaid, including, at Sublessor's option, the rent for the entire
unexpired balance of the term of this lease, and/or other charges, payments, costs and expenses
reserved as rent or agreed to be paid by the Sublessee, and for interest and costs together with
attorney's commission of five percent (5%). Such authority shall not be exhausted by one exercise
thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent
and/or other charges reserved as rent shall fall due or be in arrears, and such powers may be
exercised as well after the expiration of the original term and/or during any extension or renewal
of this lease.
D. When this lease shall be determined by a condition broken, either during the original
term of this lease or any renewal or extension thereof, and also when and as soon as the term
hereby created or any extension thereof shall have expired, it shall be lawful for any attorney, as
attorney for Sublessee, to file an agreement for entering in any competent court an amicable
action in judgment and ejectment against Sublessee, and all persons claiming under Sublessee for
the recovery by Sublessor of possession of the herein demised premises, for which this lease shall
be his sufficient warrant, whereupon, if Sublessor so desires, a Writ of Possession may issue
forthwith, without any prior proceedings whatsoever, and provided that if, for any reason, after
such action shall have been commenced, the same shall be determined and the possession of the
premises hereby demised remain in or be restored to Sublessee, Sublessor shall have the right
upon any subsequent default or defaults, or upon the termination of this lease as hereinbefore set
forth, to bring one or more amicable action or actions, as hereinbefore set forth, to recover
possession of the said premises.
CUMULATIVE
EFFECT
13. All the remedies inbef,
by law and equity shall be cumulative and c given to Sublessor and all rights and remedies given to him
concurrent. No determination of this lease or the taking or
recovery of the premises shall deprive Sublessor of any ofhis remedies or actions against the Sublessee for
rent due at the time, or which, under the terns hereof, would in the future become due, as if there has been
no determination, or for sums due at the time of which, under the terms hereof, would in the future become
due as if there had been no determination, nor shall the bringing of any action for rent or breach of
covenants, or the resort to any other remedy herein provided for the recovery of rent, be construed as a
waiver of the right to obtain possession of the premises.
QUIET 14. It is further understood and agreed, that subject to the terms of this lease, Sublessee, paying
POSSESSION the rent hereby reserved, and performing and observing the several covenants hereof, may peacefully hold
and enjoy the said premises throughout the duration of this lease without any interruptions by the Sublessor,
its heirs or assigns or any person lawfully claiming through hire.
NOTICE 15. All notices which are required or are permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered or sent by United States certified mail,
prepaid:
A. If to Sublessor, addressed to:
290 East Pomfret Street
Carlisle, PA 17013
B. If to Sublessee, addressed to:
290 East Pomfret Street
Carlisle, PA 17013
Such addresses may be changed at any time and from time to time by like written notice given by either
parry to the other. It is further understood and agreed that notice to either of the Sublessees shall constitute
and be deemed notice to both.
OTHER 16. The marginal titles appearing in this lease are for poses of each reference PROVISIONS not be considered a part of this lease or in any way to modify, amend, or affect the provis ons thereof
BINDING 17. All rights and liabilities herein given to or imposed upon the respective parties hereto
EFFECT shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns
of said parties. No rights, however, shall inure to the benefit of any assignee of Sublessee unless the
assignment of such assignee has been approved by Sublessor in writing as aforesaid.
IN WITNESS WHEREOF, the parties hereto have executed these presents, intending to be legally bound, on the
day and year first above written.
WITNESS:
MILDIN, INC
By:
Brian Cardin (SEAL)
WITNESS:
?fi? Pay;,
DUTREY SHOES
By: n ( j oU
John Dutrey
?y
LEASE
THIS AGREEMENT, made this day of
2006, by and between Castles Land Company, of the Borough of Carlisle,
Cumberland County, Pennsylvania, hereinafter called "LESSOR", and MILDIN, INC.,
with its principal place of business located at 290 East Pomfret Street, Carlisle,
Cumberland County, Pennsylvania, hereinafter called "LESSEES", WITNESSETH:
The Lessor, in consideration of the rents, conditions and covenants
hereinafter mentioned does demise and lease unto the Lessee, the premises situate in
the Borough of Carlisle, Cumberland County, Pennsylvania, being a 4,932 square foot
area consisting of a portion of the building known and numbered as 290 East Pomfret
Street, Carlisle, Pennsylvania, to have and to hold for the term of sixty (60) months,
beginning on the first (1st) day of March, 2006 and ending on the twenty-ninth (29th)
day of February 2011 unless renewed or terminated in accord with other provisions of
this Lease. Lessor and Lessee hereby agree to allow Lessee occupancy of premises
starting on or about December 21, 2005 for purposes specified in Exhibit "A", to ready
premises for opening of business on March 1, 2006, at which time the rents will be due
and owing.
The Lessee agrees to pay the Lessor for the use and occupancy of said
premises for the five-year term a total rental of at least Two Hundred Sixty-Seven
Thousand Five Hundred Sixty-One and 00/100 ($267,561.00) Dollars, plus any
additional rent due and owing occasioned by a change in the monthly rental, all of
which rent shall be payable in monthly payments as follows:
The first month's payment of $4,315.50 shall be due on or before March 1, 2006
with regular monthly payments of $4,315.50 due and owing on or before the first (1st
day of each month thereafter through February 2008. On or before March 1, 2008
regular monthly payments of $4,418.25 due and owing on or before the first (151) day of
each month shall be due through February, 2009. On or before March 1, 2009 regular
monthly payments of $4,521.00 due and owing before the first (151) day of each month
shall be due through February 2010. On or before March 1, 2010 regular monthly
payments of $4,726.50 due and owing before the first (1S1) day of each month shall be
due through February 2011.
Additional rent shall be due to Lessor of Lessee's demised premises
proportionate share of the increase annually after year one in Lessor's increased
expense for the following:
• Real Estate Taxes (2006 actual billings); and
• Insurance (2006 actual billing)
which figure will be calculated by dividing the total occupied space at 290 East Pomfret
Street (15,556 square feet) into the square feet occupied by Lessee (4,932 square
feet), yielding a percentage (%) obligation as to said increases of 31.7% and shall be
paid in monthly installments in addition to the normally scheduled rent.
A security deposit in the amount of $4,315.50 shall be paid by Lessee to Lessor
as follows:
• $1,000.00 upon the signing of this agreement
• $1,657.75 June 1, 2006
• $1,657.75 September 1, 2006
All or a portion of the security deposit shall be retained by Lessor on account of
damages to the premises and any balance or remainder of such deposit due to Lessee
shall be returned to Lessee by Lessor in accord with the laws of the Commonwealth of
Pennsylvania upon the termination of this lease and vacation of the premises by
Lessee in accord with law. Nevertheless, no interest shall be imputed or credited to
Lessee on account of the security deposit. Lessee specifically waives any such credit
or accounting. The security deposit may not be used by Lessee to offset rent, but may
be credited to Lessor at Lessor's sole option on account of rent if rent is due and owing
at the end of this lease. As a further consideration for the use and occupancy of said
premises the Lessee agrees to faithfully keep and be bound by the following covenants,
conditions and agreements, to wit:
1. The premises shall be used for purposes approved by the Lessor in
writing and for no other use without the prior written consent of the Lessor and upon
use for any purpose not approved by the Lessor, this Lease shall terminate and the
entire rent reserved for the full term of this Lease remaining unpaid shall become due
and payable at once, unless the use of the premises is corrected within the grace
period specified in Article 24 of this Lease.
2. The Lessee shall not transfer, assign or sublet the premises or any part
thereof without the prior written consent of the Lessor other than Dutrey's Shoes
unless such sublease is extended to a subsidiary or division of Lessor engaged in
substantially the same business as Lessee. Prior written consent will not be
unreasonably withheld by Lessor in favor of Lessee. And upon such consent Lessee
shall be released from all liability on this Lease.
I No sign, plaque, advertisement or notice shall be inscribed, painted,
erected or affixed on or to any part of the outside of the demised premises unless same
shall be first approved by the Lessor, which shall not be unreasonably withheld,
including the content, type of sign, plaque, advertisement or notice and the location
thereof. Any and all municipal approvals for such signs shall be obtained by Lessee at
Lessee's sole expense.
4. Included in the lease and referred to in Paragraph One at no additional
rental the Lessee and its invitees shall have the right to park automobiles in the parking
lot in front of the demised space,
and in such places as may be deemed proper by the Lessor. In the event that the
Lessee should be permitted to sublet a portion of said premises, with the written
consent of the Lessor as provided for in this lease, no additional parking space shall be
provided for the sub-tenant, it being the intention of this provision that there shall be
only said number of parking spaces for the demised premises, irrespective of the
number of occupants. All parking shall be subject to the rules, regulations and controls
of the Lessor in order that the entire parking lot may work smoothly and efficiently and
may be changed at any time by the Lessor.
5. The premises are to be kept and maintained in as good repair and
condition as at present, except as otherwise set forth in this lease. The Lessee shall
keep the premises in good repair, and at the expiration or termination of this Lease,
they are to be surrendered in like repair and condition, fair wear and tear, natural wear,
and damages happening by storm and other casualties caused by nature excepted as
well as improvements accepted by Lessor. In the event that the premises are not in
such repair and condition, the Lessor may, at it option, restore the premises to such
which automobiles shall be parked at such an angle
repair and condition. The costs of such restoration shall be paid by the Lessee as
additional rent due and owing under this Lease.
6. The Lessee will pay for all utilities consumed for its benefit as to the
demised premises, interior renovations and repairs, as well as trash and janitorial
services upon occupancy. Any waste generated by Lessee shall be disposed of in
accordance with a written plan approved by Lessor. Lessor shall provide snow removal
as well as HVAC maintenance and repairs as well as external maintenance and
including repairs to roofs, walls and interior pipes, except damages caused by Lessee
or its invitees. Real estate taxes levied upon the premises shall be paid by Lessor as
well as non-metered water and sewer.
7. The premises are to be kept in a clean and sanitary condition, and the
Lessor shall not be required to furnish any janitorial service for the benefit of Lessee..
8. Nothing shall be done upon the premises contrary to the conditions of
the policies of insurance upon the building whereby the hazard may be increased or the
insurance invalidated. The intention of the parties is that Lessee is not to engage in
hazardous or dangerous activities which would cause the above conditions to occur.
9. Lessee shall not make any alterations, additions or improvements
without Lessor's prior written consent and all alterations, additions, or improvements
made by either of the parties hereto upon the premises, except those items used in the
operation of Lessee's business, and/or movable and detached office furnishings put in
at Lessee's expense, shall be the property of the Lessor and shall remain upon and be
surrendered with the premises, as a part thereof, at the termination of this Lease
without molestation or injury. Lessee shall be allowed to remove any and all fixtures or
equipment used in the operation of Lessee's business or installed by Lessee, whether
or not the same have become attached to the property, upon the termination of this
lease. Upon removal of any and all fixtures Lessee shall restore the premises to this
original condition.
10. Lessor will supply infrastructure electrical services, including necessary
meters, to a point within Lessee's premises where Lessee's internal wiring hookups can
be made.
11. The cost to remove, or encapsulate if permitted by code, any
hazardous or toxic material which may now exist on or about the premises or be
brought on to the property as a result of Lessor's renovations are Lessor's
responsibility. Any hazardous or toxic material brought to the premises by Lessee shall
be the responsibility of Lessee and Lessee covenants not to knowingly do so or permit
same.
12. Lessor will conform with all applicable laws and regulations concerning
the exterior of the building and perform any work in the interior of the building that may
be required by applicable laws and regulations.
13. Lessor will maintain fire and other casualty insurance on the building
but does not assume the risk for the liabilities and contents of Lessee which are
mentioned as the items to be insured against elsewhere in this Lease Agreement.
14. Lessor will maintain the grounds and parking lot of the building,
including lawn care and prompt snow removal in accord with reasonable practices and
schedules.
15. Lessor intends to use existing sign structure or improve it with provision
for others than the Lessee to use same also and Lessor agrees that Lessee shall have
adequate identification of his business which signs shall permit adequate identification
of the Lessee's business in accord with any approvals and ordinances of the Borough
of Carlisle.
16. Lessee shall give Lessor prompt written notice of any accidents to, or
defects in, the water pipes, electrical wiring, heating and air conditioning apparatus, or
any other defects which may cause damage to the interior or exterior of the premises.
If such notice is given to the Lessor by the Lessee, the Lessor shall be responsible for
correcting and repairing same,
the interior walls, floors and ceilings. The Lessee, however, shall be responsible for
replacing electric light bulbs, outside glass which has been broken from the inside or
outside, and any damage caused by any equipment which he may install or by any
damages due to renovations of the premises accomplished by Lessee after the initial
renovations are done by the Lessor. No dirt, refuse or any other substance shall be
thrown or left lying on, in and around the premises. If after thirty (30) days written
notice, as provided above, Lessor does not repair or replace the defect so noted, then
in that event, the same shall be deemed a default by Lessor under this Lease and
Lessee may terminate the remaining term of this Lease and Lessee shall be released
from any and all liability contained therein including the payment of rent.
17. No showcase, sign or hanging or protruding sign or permanent
obstruction of any kind shall be kept or maintained by the Lessee in front of the
premises, without the express written consent of the Lessor, excluding window banners
including any damages which may have been caused to
and/or lunch boards which are specifically permitted.
18. All rent paid hereunder shall be paid by check or otherwise to the orde,
of Castles Land Company and delivered or mailed to an address to be specified by
Lessors upon execution of this lease, or such other person or place as may be directed
by the Lessor. All notices given in accordance with this Lease shall be made in writing
and mailed to the Lessor and/or Lessee at their respective addresses specified in the
Exhibit "A" attached to and made a part of this Agreement or such other person or
place as may be directed by the parties.
19. The Lessor expressly reserves the right to enter upon the premises on
reasonable notice, other than in emergency situations, for the purpose of making
necessary inspections and repairs or to show the same to prospective purchasers or
tenants and may display "For Rent" or "For Sale" signs thereon.
20. Lessee shall upon mutually agreeable terms as to rental payments
and under the same terms and conditions set forth in this Lease renew this Lease for a
sixty (60) month renewal term and provide Lessor with a six (6) month written notice of
intention to renew.
21. As between the Lessor and the Lessee, Lessor shall be responsible
for any damages or injuries to any person or property at any time during the term set
forth herein which occurs outside of said premises, except to the extent caused by the
negligence or willful misconduct of Lessee, its agents, servants, and employees and
Lessor agrees to indemnify Lessee as to liability arising from the negligent acts or willful
misconduct acts of its agents, servants and employees which occur upon the Lessee's
premises . Lessee shall be liable for any damages or injuries to any person or property
at any time during the term set forth herein which occurs inside said premises, except
as such as may be caused by an Act of God or the failure of the portion of the structure
or any equipment for which the Lessor has maintenance responsibility or has caused
through Lessor's own acts and the Lessee hereby agrees to indemnify and save
harmless the Lessor from such liability. The Lessee shall maintain liability insurance i
- n
the amount of $1,000,000.00 for personal injury and 1 000 000.00 for property
damage for each occurrence on said premises.
22. In the event that the premises is totally destroyed or so damaged by
fire or other casualty not occurring through fault or negligence of the Lessee or those
employed by or acting for it, that the same cannot be repaired or restored within thirty days, this Lease shall absolutely cease and determine, and the rent shall abate for
the balance of the term. If the damage caused as above be only partial and such that
the premises can be restored to its prior condition within three (3) months time, the
Lessor may, at its option, restore the same with reasonable promptness, reserving the
right to enter upon the premises for that purpose. The rent for such repair period shall
abate in proportion to the diminution in sales suffered by Lessee. The Lessor also
reserves the right to enter upon the premises whenever necessary to repair damage
caused by fire or other casualty to the building of which the premises is a part, even
though the effect of such entry be to render the premises or a part thereof
untenantable.
In either event the rent shall be apportioned and suspended during the time
the Lessor is in possession, taking into account the proportion of the premises rendered
untenantable and the duration of the Lessor's possession.
23. If default shall be made in the payment of any rent after the same
becomes due for more than fifteen (15) days a late charge of five per cent (5%) of the
unpaid rent shall be due and owing by Lessee to Lessor in addition to the unpaid rent or
portion thereof and if after fifteen (15) days, such rent or portion thereof is unpaid,
interest shall accrue on the unpaid sums of money due and owing to Lessor by Lessee
at the rate of one percent (1.0%) per month on the outstanding balance until said
amounts due and owing are paid in full and if within thirty (30) days of the date of
written notice thereof given by the Lessor to the Lessee by ordinary mail, the rent is not
paid, or in case of a breach or evasion or any attempt to break or evade any of the
covenants or conditions of this Lease, the entire rent reserved for the full term of this
Lease shall become due and payable at once and may forthwith be collected by
distress or otherwise, and at the same time the Lessor may forfeit and annul the
unexpired portion of the Lease and enter upon and repossess the said premises with or
without process of law and without giving any notice whatsoever, and if the Lessee shall
become insolvent, make an assignment for the benefit of creditors, commit any act of
bankruptcy, or file a voluntary petition in bankruptcy, or any involuntary petition in
bankruptcy be filed against said Lessee, all the rent reserved for the full term of this
Lease shall become due and collectible immediately by distress or otherwise.
Notwithstanding anything herein to the contrary, Lessor shall have a duty to mitigate
any and all damages, including the payment of rent by Lessee while by obtaining a new
tenant or otherwise. If Lessor does not make the required repairs or breaches any
provision of this Lease or if Lessor shall become insolvent, make an assignment for the
benefit of creditors, commit any act of bankruptcy, or file a voluntary petition in
bankruptcy or any involuntary petition in bankruptcy be filed against Lessor, this Lease
shall terminate at the option of Lessee and any and all liability including the payment of
rent contained therein shall terminate.
24. This Lease shall be binding upon the executors, administrators, heirs
successors and assigns of the parties hereto and will survive any transfer of ownership
of either the property or of the Lessee.
25. That neither party has engaged the services of a realtor and no
commission is due to any person except that the Lessor has employed the services of
Wolfe & Shearer and Lessor will be solely responsible for any commission due them.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have duly executed this Agreement the day and year first above written.
WITNESS:
r:
Lee H. Castles for Castle LandAompany
Brian Cardin
For MILDIN, INC.
EXHIBIT A
Cardin & Miller, Physical Therapy, the subdivision of Milden, 290 E. Pomfret Street,
Suite # 4 & # 5, Carlisle, PA, service/activities to be performed:
• Outpatient orthopedic physical therapy (P.T.) services by licensed personnel
• Regular use of exercise equipment for patient care to include:
o stationary bicycles;
o treadmills;
o free weights;
o wall mounted pulley systems;
o mini-tramps;
o balance devices;
o sliding boards; and
o gait analysis systems
• Equipment to perform P.T. modalities:
o traction machines;
o ultra sound units; and
o electrical simulators
• Storage of necessary medical records for patient load
• Manual therapy performed by licensed therapists
• Use of necessary office equipment (i.e., computers, copies, fax machines, etc.)
as needed for administration of the business including scheduling, billing,
collections and other related administrative duties
Dutrey's Shoes, 290 E. Pomfret Street, Suite # 4, Carlisle, PA, service/activities to be
performed:
• Retail shoe sales/fitting
• Storage of inventory as needed to supply retail shoe business
• Pedorthics by certified pedorthits
• Fabrication of custom orthothotics
• Miscellaneous shoe modifications and repair
• Casting and fabrication of custom molded foot orthothotics
EXHIBIT B
All notices to Lessor together with all rental payments shall be presented to Lessor
at the following address until a new mailing address is provided by Lessor to Lessee:
Castles Land Company
Lee H. Castles
448 Criswell Drive
Boiling Springs, PA 17007
All notices to Lessee shall be presented to Lessee at the following address until a
new mailing address is provided by Lessee to Lessor:
John Dutrey
MILDIN, INC.
290 E. Pomfret Street
Carlisle, PA 17013
i
EXHIBIT C
Year - $ per
March 1st- square
Last Day of foot
February
One $10.50
2006-07
Two $10.50
2007-08
Three $10.75
2008-09
Four $11.00
2009-2010
Five $11.50
2010-11
TOTAL
FIVE
YEAR
TERM
Sixty Month Term Pavmpnt c..ti„,?
-- - vvc?/u1C
x 4,932 sq. ft.
7 Monthly Rent
Annual Rent
$51,786.00 I $4,315.50
$51,786.00 I $4,315.50
$53,019.00 I $4,418.25
$54,252.00 I $4,521.00
$56,718.00 I $4,726.50
$267,561.00
Law Offices
O'BRIEN, BARIC & SCHERER
19 West South Street
Carlisle, Pennsylvania 17013
Robert L. O'Brien
David A. Baric
Michael A. Scherer
June 8, 2006
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011-4906
RE: First Choice v. Cardin & Miller. P.C. et als.
Dear Mr. Augustine:
(717) 249-6873
Fax: (717) 249-5755
Email. dbaric(a obslaw com
I have received and reviewed your responses to the interrogatories and document
production requests.
I write to ask whether you will reconsider your objections to the follow
requests/interrogatories:
All corporate records for Cardin & Miller, P.C.- these records are relevant to determining
ownership of the business, time of formation and activities undertaken to incorporate the
business.
Any written communications with referral sources of First Choice- this information
would be relevant and admissible in regards to activities diverting or interfering with business
previously undertaken by First Choice.
All employees of Cardin & Miller, P.C.- this information will lead to a list of potential
witnesses to be deposed in this matter.
The former employers of Cardin & Miller, P.C.- this information will permit me to
determine which employees of Cardin & Miller, P.C. should be deposed in this matter.
Tax returns for Brian Cardin- this information is relevant to determine the scope of
damages as Cardin diverted income intended for First Choice from the providing of pedorthic
services to himself.
EXHIBIT "D"
Eric R. Augustine, Esq.
06/08/06 letter
page 2
Please respond so I may determine my course of action. If you would care to discuss this
matter in more detail, please contact me.
Very truly yours,
O'BRIEN, BARIC & SCHERER
David A. Baric, Esquire
DAB/j 1
cc: G kuff
File
dab.dir/litigation/tirstchoice/cardinmiUer/augustine4.ltr
CERTIFICATE OF SERVICE
I hereby certify that on June _;'O , 2006, I, David A. Baric, Esquire of O'Brien, Baric &
Scherer, did serve a copy of the Motion To Dismiss Objections To Interrogatories and Request
For Production Of Documents, by first class U.S. mail, postage prepaid, to the party listed below,
as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
David A. Baric, Esquire
'-
_. .-7
C..A T7
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F2
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McCUEN & ASSOCIATES,
Plaintiff
V.
BRIAN D. CARDIN,
STEVE MILLER,
CARDIN& MILLER PHYSICAL :
THERAPY, P.C., and
DUTREY' S SHOES ADD, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 06-1759 CIVIL TERM
ORDER OF COURT
AND NOW, this 28 h day of June, 2006, upon consideration of Plaintiff's Motion
To Dismiss Objections to Interrogatories and Request for Production of Documents, a
discovery conference is scheduled in chambers of the undersigned judge for Thursday,
August 10, 2006, at 2:00 p.m.
t,Zavid A..Baric, Esq.
19 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
X- R. Augustine, Esq.
Suite 301
415 Fallowfield Road
Camp Hill, PA 17011
Attorney for Defendants
A
BY THE COURT,
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CASE NO: 2006-01759 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCCUEN & ASSOCIATES ETC
VS
CARDIN BRIAN D ET AL
JASON VIORAL Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
CARDIN & MILLER PHYSICAL THERAPY PC the
DEFENDANT , at 1017:00 HOURS, on the 29th day of March , 2006
at 290 EAST POMFRET STREET
CARLISLE, PA
by handing to
STEVE MILLER, CO-OWNER ADULT IN CHARGE
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
4.40
.00
10.00 R. Thomas Kline
.00
20.40 03/30/2006
OBRIEN BARIC SCHERER
Sworn and Subscribed to before
me this /9r. day of
Mry i 2 W1, A. D.
By: ?.
De y ^heriff
Prothonotary
I %
CASE NO: 2006-01759 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCCUEN & ASSOCIATES ETC
VS
CARDIN BRIAN D ET AL
JASON VIORAL
, sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
DUTREY'S SHOES ADD INC the
DEFENDANT , at 1015:00 HOURS, on the 29th day of March 2006
at 290 EAST POMFRET STREET
CARLISLE, PA 17013 by handing to
JOHN DUTREY, OWNER, ADULT IN CHARGE
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this day of
A. D.
So Answers:
R. Thomas Kline
03/30/2006
OBRIEN BARIC SCHERER
By.
put Sheriff
Prothonotary
SHERIFF'S RETURN - REGULAR
CASE NO: 2006-01759 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCCUEN & ASSOCIATES ETC
VS
CARDIN BRIAN D ET AL
DAVID MCKINNEY Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
CARDIN BRIAN D the
DEFENDANT at 1530:00 HOURS, on the 28th day of March , 2006
at 104 WERTZ AVENUE
MECHANICSBURG, PA 17055 by handing to
NIKKI CARDIN, WIFE
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 7.92
Postage .39
Surcharge 10.00 R. Thomas Kline
.00
36.31, 03/30/2006
OBRIEN BARIC SCHERER //
Sworn and Subscribed to before By:
me this /, day of Deputy Sheriff JJ
jVL4--ti ) vu 4 A.D.
Prothonotary
SHERIFF'S RETURN - REGULAR
CASE NO: 2006-01759 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCCUEN & ASSOCIATES ETC
VS
CARDIN BRIAN D ET AL
DAVID MCKINNEY , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
MILLER STEVE
the
DEFENDANT , at 1918:00 HOURS, on the 28th day of March , 2006
at 839 OHIO AVENUE
LEMOYNE, PA 17043 by handing to
MEGAN MILLER, WIFE
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Service 13.20
Affidavit .00 ?l
Surcharge 10.00 R. Thomas Kline
00
29. 03/30/2006
OBRIEN BARIC SCHERER
Sworn and Subscribed to before By:? L `
me this Iqw day of Deputy Sheriff
P w? a e1KJ A.D.
Prothonotary
r
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff
IN THE COURT OCOMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -JEQUITY
v
BRIAN D. CARDIN, STEVE
MILLER, CARDIN & MILLER
PHYSICAL THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.,
Defendants No. 2006-1759
IN RE: DISCOVERY CONFERENCE
ORDER OF COURT
TERM
AND NOW, this 10th day of Au6st, 2006, upon
consideration of Plaintiff's Motion To Dismi s objections to
Interrogatories and Request for Production o Documents, and
following a conference held in the chambers if the undersigned
David A. Baric, Esquire, and Defendants were represented by Eric
R. Augustine, Esquire, it is ordered and dir cted that, within
30 days of today's date, Defendants furnish o Plaintiff's
judge on this date, in which Plaintiff was r presented by
counsel the following:
1. Copies of minutes and by-laws of Defendant
Cardin & Miller Physical Therapy, P.C., relating to the formation
of the professional corporation;
2. Copies of any written communications from any
Defendant to referral sources of the Plaintiff prior to the
effective dates of the resignations of Defend nt Brian D. Cardin
and Steve Miller from employment with Plainti f McCuen &
Associates;
3. Copies of those portions of the federal tax
returns of Defendant, Brian D. Cardin, for the years 2003, 2004,
and 2005, which relate to his treatment of in?ome from Defendant
Dutrey's Shoes Add, Inc.;
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4. Copies of written communications between or
among Defendants relating to the move of Def ndant Dutrey's Shoes
Add, Inc., from its prior location on North anover Street in
Carlisle to its present location at 290 East Pomfret Street,
Carlisle;
5. Copies of written materi is indicating
insurance coverage, if any, which Defendant utrey's Shoes Add,
Inc., had in place in the years 2003, 2004, r 2005 covering
claims arising out of Defendant Brian D
6. Copies of any documents
business relationship between Defendant Dut
and any other Defendant; and
7. A list identifying the
Cardin & Miller Physical Therapy, P.C.,
February of 2006.
's services;
elating to a
's Shoes Add, Inc.,
loyees of Defendant
its inception in
Pursuant to an agreement of counsel, issues
relating to the identification of clients of either Plaintiff or
Defendants will not be adjudicated at this time, and counsel are
requested to file a motion with respect to t at type of
disclosure in the event that they are unable to resolve the
issues amicably.
By the Court,
, Jr.,
David A. Baric, Esquire I/
19 West South Street V
Carlisle, PA 17013
For Plaintiff
Eric R. Augustine, Esquire /
Suite 301
415 Fallowfield Road
Camp Hill, PA 17011
For Defendants :mae
?i
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
CIVIL ACTION-EQUITY
MOTION FOR PROTECTIVE
ORDER FILED BY McCUEN & ASSOCIATES
d/b/a FIRST CHOICE REHABILITATION SPECIALISTS
NOW COMES, McCuen & Associates, d/b/a First Choice Rehabilitation Specialists, by
its attorneys, O'Brien, Baric & Scherer, and files the within Motion For Entry Of Protective
Order as follows:
1. The parties have stipulated to the entry of a Protective Order.
2. The Honorable J. Wesley Oler, Jr. has previously heard matters in this case.
WHEREFORE, the parties respectfully request that a Protective Order be entered in. this
matter in the form attached hereto.
Respectfully submitted,
O' RIEN, BARIC & SCHE
David A. Baric, Esquire
ID# 44853
19 West South Street
Carlisle, PA 17013
(717) 249-6873
d ab.dir/litigation/firstch oice/ca rd in m iller/protectiveo rder. mot
MCCUEN & ASSOCIATES, d/b/a IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation CUMBERLAND COUNTY, PENNSYLVANIA
Specialists,
Plaintiff,
NO. 2006-1759 CIVIL TERM
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
CIVIL ACTION-EQUITY
JUDGE: J. WESLEY OLER, JR.
PROTECTIVE ORDER
This cause coming before the Court pursuant to a stipulation of the parties and the Court
being fully advised in the premises.
IT IS HEREBY ORDERED as follows:
1. As used in this Order, "document" means any written, printed, typed, recorded or
graphic matter, however produced or reproduced, of any kind or description.
2. As used in this Order, "confidential material" means trade secret or confidential
research, development or commercial information and any document, written discovery response,
or deposition testimony, or any portion thereof, which contains such information.
3. Any party producing any document may designate any or all portions thereof as
confidential material. Any party may designate written discovery responses as confidential
material. A party may, within ten (10) days of the completion of a deposition, notify the other
parties that the deposition testimony contains confidential material, in which case the entire
deposition transcript shall be deemed to be confidential material for thirty (30) days following
receipt by the designating party of the deposition transcript. During this period, the designating
party shall designate specific portions of the transcript as confidential and, from that point
onward, only such designated portions shall be confidential material.
4. Only those items, or any portion thereof, which a party in good faith deems to
contain confidential material shall be so designated, and counsel for the designating party shall
certify in writing that such counsel is of the belief that the designation has been made in good
faith and that there are substantial grounds in law and in fact to support the designation.
5. The designation of confidential material may be made by placing or affixing
thereon (in such manner as will not interfere with the legibility thereof) the following notice:
CONFIDENTIAL MATERIAL
BY ORDER OF COURT IN
McCUEN & ASSOCIATES v. BRIAN CARDIN, ET ALS.
PROTECTIVE ORDER
CIVIL ACTION NO. 2006-1759
The entire document, written discovery response, or deposition transcript containing such notice,
and the information contained in such material, shall be treated as confidential unless the party
producing it shall clearly indicate thereon that only a portion of it is to be treated as confidential.
6. Any parry may object to the designation of particular material as confidential by
giving written notice to all other parties. Such written notice shall identify the material to which
the objection is directed. If the objecting and designating parties are unable to resolve their
differences within ten (10) days of the time the notice is received, the objecting party may file
appropriate papers requesting the Court to rule that the disputed material should not be subject to
the protection of this Order. The disputed material shall remain confidential and subject to the
terms of this Order unless and until the Court rules otherwise.
7. Confidential material and any copies thereof, the information contained in such
material, and any notes made therefrom shall be disclosed only to attorneys of the parties or to
persons such as secretaries and legal assistants regularly employed in such attorneys' offices, for
use solely in the preparation for trial of this litigation. No copies, abstracts or summaries shall be
made except by or on behalf of said attorneys in said offices and such copies, abstracts and
summaries shall be treated as confidential material.
8. In the event of disclosure of confidential information to the employee of an
attorney, such person or persons shall be provided with a copy of this Protective Order, and shall
be bound by its items. In addition, counsel for the party making the disclosure shall advise the
person or persons to whom the disclosure is made that, pursuant to this Protective Order, such
person may not divulge any such confidential material to any other person or use such material
for any purpose other than preparation for the trial of this case.
9. In the event that any confidential material is included with, or the contents thereof
are in any way disclosed in, any pleading, motion, deposition transcript, or other paper filed with
this Court, such confidential material shall be kept under seal until further Order of this Court,
provided, however, that such papers shall be furnished to the Court and attorneys for the named
parties, and a duplicate copy thereof (with the confidential material deleted therefrom) may be
placed in the public record.
10. Nothing in this Protective Order shall be deemed to preclude any party from
seeking, on an appropriate showing, lesser or greater protection with respect to the confidentiality
of any document, written discovery response or deposition testimony.
11. Neither this Protective Order nor the designation of any form as confidential
material shall be construed as an admission that such material, or any testimony in respect of
such material in a deposition or otherwise, would be admissible in evidence in this litigation or in
any other proceeding.
Dated this day of , 2006.
ENTER:
Agreed:
Agreed:
J.
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on September?/ , 2006, I, David A. Baric, Esquire of O'Brien,
Baric & Scherer, did serve a copy of Motion For Entry Of Protective Order, by first class U.S.
mail, postage prepaid, to the party listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
David A. Baric, Esquire
c N
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.Try
7
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
V.
SEP 2 5 2006
IN THE COURT OF COMMON
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
Plaintiff,
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY' S SHOES ADD, INC.
Defendants.
CIVIL ACTION-EQUITY
ORDER OF COURT
AND NOW, this _ day of I _- , , 2006, upon consideration of
the Motion For Entry Of Protective Order Filed By McCuen & Associates d/b/a First Choice
Rehabilitation Specialists, Inc., and upon Stipulation of the parties, a Protective Order is hereby
entered in this matter.
. lp_
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BY THE COURT,
l?J,t , ii `s! ItJ
I C :I I WV ?- 130 SON
:JIILLL --lo
t
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
MOTION TO DISMISS OBJECTIONS TO
REQUEST FOR PRODUCTION OF DOCUMENTS
NOW, comes Plaintiff, First Choice, by and through its attorneys, O'BRIEN, BARIC &
SCHERER, and files the within Motion to Dismiss Objections to Request for Production of
Documents and, in support thereof, sets forth the following:
1. On or about December 8, 2006, Plaintiff served counsel for Defendants with
Plaintiffs Second Request for Production of Documents Directed to Brian Cardin, Cardin &
Miller Physical Therapy, P.C. and Dutrey's Shoe ADD, Inc. True and correct copies of
Plaintiffs Requests for Production of Documents Directed to these Defendants are attached
hereto as Exhibit "A" and are incorporated by reference.
2. On or about January 10, 2007, Defendants filed "Answers To Request For
Production." True and correct copies of these documents are attached hereto as Exhibit "B".
3. Pursuant to Pa R.C.P. 4009.12, a party upon whom a request for production is
served shall serve an answer including objections to each numbered request.
4. Pursuant to Pa R.C.P. 4009.12 (b)(4), a party may object to a request for
production on the grounds set forth at Pa R.C.P. 4011(a), (b) and (e) or upon the grounds that the
request does not meet the requirements of Pa R.C.P. 4009.11.
5. Defendant's have filed objections to the following Document Requests:
Cardin & Miller, P.C.: Document Requests Nos. 1 and 2
Brian Cardin: Document Requests Nos. 1 and 2
Dutrey's Add: Document Requests Nos. 1 and 2
6. Pa R.C.P. 4009.1 provides that a party may seek production of documents which
are "... in the possession, custody or control of the party or person upon whom the request or
subpoena is served; and may do so one or more times."
7. Pa R.C.P. 4019 (a)(1)(vii) permits this Court to make an appropriate order if a
party fails to respond that inspection will be permitted as requested or fails to permit inspection
as requested under Rule 4009.
8. Pa R.C.P. 4019 (a)(i)(viii) permits this Court to make an appropriate order if a
party fails to make discovery.
9. By correspondence dated January 30, 2007, counsel for Plaintiff requested that
counsel for Defendant's reconsider the objections and no response has been received to the date
of this motion. A true and correct copy of this correspondence is attached hereto as Exhibit "C"
and is incorporated by reference.
10. The Honorable J. Wesley Oler, Jr., previously issued Orders in this matter
pertaining to discovery.
WHEREFORE, Plaintiff respectfully moves this Court to issue and order overruling the
objections of Defendants to the Request for Production of Plaintiff and direct Defendants to
provide and serve upon counsel for Plaintiff full and complete responses to the document
requests.
Respectfully submitted,
RIEN, BARICSCHE
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigation/firstchoice%ardinmiller/dismissobjectiondocuments.mot
CERTIFICATE OF SERVICE
I hereby certify that on February /Z, 2007, I, David A. Baric, Esquire of O'Brien, Baric
& Scherer, did serve a copy of the Motion To Dismiss Objections to Request For Production Of
Documents, by first class U.S. mail, postage prepaid, to the party listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
Ak % z , )./Jk
David A. Baric, Esquire
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 -1759 CIVIL TERM
CIVIL ACTION-EQUITY
SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
PROPOUNDED UPON CARDIN & MILLER PHYSICAL THERAPY. P.C.
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-
client, attorney work-product or any other privilege is applicable thereto, you shall with respect to
that document:
(a) State its date;
(b) Identify its author;
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof;
Exhibit "A"
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. Any and all documents which identify all individuals for whom you provided
pedorthic services at any time during the period from January 1, 2003 to present.
2. Any and all documents which reflect, refer or relate to any income received from
pedorthic services from January 1, 2003 to present.
Respectfully submitted,
ZOEN, BART SC rEA
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litieation/firstchoice%ardinmiller/cardin&millerseconddocument.rea
CERTIFICATE OF SERVICE
I' I hereby certify that on December ( , 20063, I, David A. Baric, Esquire of O'Brien,
Baric & Scherer, did serve a copy of the Second Request For Production Of Documents
Propounded Upon Cardin & Miller Physical Therapy, P.C., by first class U.S. mail, postage
prepaid, to the party listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
David A. Baric, Esquire
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 -1759 CIVIL TERM
CIVIL ACTION-EQUITY
SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
PROPOUNDED UPON BRIAN D. CA?RDIN
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-
client, attorney work-product or any other privilege is applicable thereto, you shall with respect to
that document:
(a) State its date;
t:
(b) Identify its author;
i
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof;
I
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. Any and all documents which identify all individuals for whom you provided
pedorthic services at any time during the period from January 1, 2003 to present.
2. Any and all documents which reflect, refer or relate to any income received from
pedorthic services from January 1, 2003 to present.
Respectfully submitted,
7VRIEN, BARIC SCHE
V •
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigation/firstchoicetcardinmiller/cardinseconddocument.req
I?
i
CERTIFICATE OF SERVICE
Il =
I hereby certify that on December , 2006, I, David A. Baric, Esquire of O'Brien,
Baric & Scherer, did serve a copy of the Second Request For Production Of Documents
Propounded Upon Brian D. Cardin, by first class U.S. mail, postage prepaid, to the party listed
below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Penrolvania 17011
David A. Baric, Esquire
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY' S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 1759 CIVIL TERM
CIVIL ACTION-EQUITY
SECOND REQUEST FOR PRODUCTION OF DOCUMENTS_
PROPOUNDED UPON DUTREY'S SHOE ADD. INC.
Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, First Choice Rehabilitation
Specialists and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the
following documents, at its expense within thirty (30) days of service of this request.
INSTRUCTIONS
If you object to the production of any document on the grounds that the attorney-client,
attorney work-product or any other privilege is applicable thereto, you shall with respect to that
document:
(a) State its date;
(b) Identify its author;
(c) Identify each person from whom the document was received;
(d) Identify each person who received it;
(e) Identify each person from whom the document was received;
(f) State the present location of document and all copies thereof;
(g) Identify each person who has ever had possession, custody or
control of it or copy thereof; and
(h) Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to
permit the adjudication of the propriety of that claim.
As referred to herein, "document" includes written, printed, typed, recorded, or graphic
matter, however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes, memoranda,
analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of
any of the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control.
DOCUMENTS REQUESTED
1. Any and all documents which identify all individuals for whom you provided
pedorthic services at any time during the period from January 1, 2003 to present.
2. Any and all documents which reflect, refer or relate to any income received from
pedorthic services from January 1, 2003 to present.
Respectfully submitted,
0' N, BARIC SCHE
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigation/ irstchoice/cardinmiller/dutreysseconddocument.req
•I
CERTIFICATE OF SERVICE
?I
I hereby certify that on December ?-? , 2006, I, David A. Baric, Esquire of O'Brien,
i
Baric & Scherer, did serve a copy of the Second Request For Production Of Documents
i;
Propounded Upon Dutrey's Shoes Add, Inc., by first class U.S. mail, postage prepaid, to the party
listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
David A. Baric, Esquire
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY' S SHOES ADD, INC.
Defendants
ANSWERS TO SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
PROPOUNDED UPON CA.RDIN & MILLER PHYSICAL THERAPY. P.C.
1. Any and all documents which identify all individuals for whom you provided
pedorthic services at any time during the period from January 1, 2003 to present.
RESPONSE:
Defendant Cardin & Miller Physical Therapy, P.C. objects to this request in that it is
overly broad and unduly burdensome. The term "document" is identified as including
"written, printed, typed, recorded, or graphic matter, however produced or reproduced,
including correspondence, telegrams, other written communications, data processing
storage units, tapes, contracts, agreements, notes, memoranda, analysis, projections,
indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs,
diagrams, drawings, minutes of meetings, or any other writing (including copies of any of
the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in
possession, custody or control." Such a request could cover hundreds or thousands of
documents, which is clearly overly broad and unduly burdensome. Additionally, to
provide every "document" is further objectionable on the basis that several documents
could be protected by attorney-client privilege.
Exhibit "B"
2. Any and all documents which reflect, refer or relate to any income received from .
pedorthic services from January 1, 2003 to present.
RESPONSE:
Defendant Cardin & Miller Physical Therapy, P.C. objects to this request in that it is
overly broad and unduly burdensome. The term "document" is identified as including
"written, printed, typed, recorded, or graphic matter, however produced or reproduced,
including correspondence, telegrams, other written communications, data processing
storage units, tapes, contracts, agreements, notes, memoranda, analysis, projections,
indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs,
diagrams, drawings, minutes of meetings, or any other writing (including copies of any of
the foregoing) regardless of whether you, your former or present counsel, agents,
employees, officers, insurers, or any other person acting on your behalf, are now in
possession, custody or control." Such a request could cover hundreds or thousands of
documents, which is clearly overly broad and unduly burdensome. Additionally, to
provide every "document" is further objectionable on the basis that several documents
could be protected by attorney-client privilege.
AS TO OBJECTIONS
Dated: January 2007
KEEFER WOOD ALLEN & RAHAL, LLP
2
By. Eric R. Auguse782, Attorney I.D. 77
635 North 12`h Street, Suite 400
Lemoyne, PA 17043
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
2
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Second Request for Production of Documents Propounded Upon Cardin & Miller Physical
Therapy, P.C. this date by depositing a true and correct copy of the same in the United States
mail, first-class postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By
N ?
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
ANSWERS TO SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
PROPOUNDED UPON BRIAN CARDIN
1. Any and all documents which identify all individuals for whom you provided
pedorthic services at any time during the period from January 1, 2003 to present.
RESPONSE:
Defendant Brian Cardin objects to this request in that it is overly broad and unduly
burdensome. The term "document" is identified as including "written, printed, typed,
recorded, or graphic matter, however produced or reproduced, including correspondence,
telegrams, other written communications, data processing storage units, tapes, contracts,
agreements, notes, memoranda, analysis, projections, indices, work papers, studies,
reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of
meetings, or any other writing (including copies of any of the foregoing) regardless of
whether you, your former or present counsel, agents, employees, officers, insurers, or any
other person acting on your behalf, are now in possession, custody or control." Such a
request could cover hundreds or thousands of documents, which is clearly overly broad
and unduly burdensome. Additionally, to provide every "document" is further
objectionable on the basis that several documents could be protected by attorney-client
privilege.
2. Any and all documents which reflect, refer or relate to any income received from
pedorthic services from January 1, 2003 to present.
RESPONSE:
Defendant Brian Cardin objects to this request in that it is overly broad and unduly
burdensome. The term "document" is identified as including "written, printed, typed,
recorded, or graphic matter, however produced or reproduced, including correspondence,
telegrams, other written communications, data processing storage units, tapes, contracts,
agreements, notes, memoranda, analysis, projections, indices, work papers, studies,
reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of
meetings, or any other writing (including copies of any of the foregoing) regardless of
whether you, your former or present counsel, agents, employees, officers, insurers, or any
other person acting on your behalf, are now in possession, custody or control." Such a
request could cover hundreds or thousands of documents, which is clearly overly broad
and unduly burdensome. Additionally, to provide every "document" is further
objectionable on the basis that several documents could be protected by attorney-client
privilege.
AS TO OBJECTIONS
Dated: January /o , 2007 By__
KEEFER WOOD ALLEN & RAHAL, LLP
/G
Eric R. Augu e
Attorney I. . #78277
635 North 12`h Street, Suite 400
Lemoyne, PA 17043
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
2
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Second Request for Production of Documents Propounded Upon Brian Cardin this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By ?/2
Eric R. Au ?6
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
_ANSWERS TO SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
PROPOUNDED UPON DUTREY'S SHOES ADD. INC.
1. Any and all documents which identify all individuals for whom you provided
pedorthic services at any time during the period from January 1, 2003 to present.
RESPONSE:
Defendant Dutrey's Shoes Add, Inc. objects to this request in that it is overly broad and
unduly burdensome. The term "document" is identified as including "written, printed,
typed, recorded, or graphic matter, however produced or reproduced, including
correspondence, telegrams, other written communications, data processing storage units,
tapes, contracts, agreements, notes, memoranda, analysis, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams,
drawings, minutes of meetings, or any other writing (including copies of any of the
foregoing) regardless of whether you, your former or present counsel, agents, employees,
officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control." Such a request could cover hundreds or thousands of documents,
which is clearly overly broad and unduly burdensome. Additionally, to provide every
"document! 'is further objectionable on the basis that several documents could be
protected by attorney-client privilege.
.-.
2. Any and all documents which reflect, refer or relate to any income received from
pedorthic services from January 1, 2003 to present.
RESPONSE:
Defendant Dutrey's Shoes Add, Inc. objects to this request in that it is overly broad and
unduly burdensome. The term "document" is identified as including "written, printed,
typed, recorded, or graphic matter, however produced or reproduced, including
correspondence, telegrams, other written communications, data processing storage units,
tapes, contracts, agreements, notes, memoranda, analysis, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams,
drawings, minutes of meetings, or any other writing (including copies of any of the
foregoing) regardless of whether you, your former or present counsel, agents, employees,
officers, insurers, or any other person acting on your behalf, are now in possession,
custody or control." Such a request could cover hundreds or thousands of documents,
which is clearly overly broad and unduly burdensome. Additionally, to provide every
"document" is further objectionable on the basis that several documents could be
protected by attorney-client privilege.
AS TO OBJECTIONS
Dated: January /o , 2007 B
KEEFER WOOD ALLEN & RAHAL, LLP
/L
Y
Eric R. Augus e
Attorney I.D 78277
635 North 12?' Street, Suite 400
Lemoyne, PA 17043
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
2
CERTIFICATE OF SERVICE
I, Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Answers to
Second Request for Production of Documents Propounded Upon Dutrey's Shoes Add, Inc. this
date by depositing a true and correct copy of the same in the United States mail, first-class
postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Banc & Scherer
19 West South Street
Carlisle, PA 17013
By
f
Robert L. O'Brien
David A. Bark
Michael A. Scherer
Robert J. Dailey
January 30, 2007
Eric Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road, Suite 301
Camp Hill, Pennsylvania 17011
RE: First Choice v. Cardin, et als.
Dear Mr. Augustine:
(717) 219-6873
Fax: (717) 249-5755
Email: dbari obslaw corn
I will be providing you with a response to your January 10, 2007 shortly. I write to ask that
you reconsider the objections you made to the second set of document production requests I served
upon you.
Discovery of information relating to the providing of pedorthic services by your clients is
certainly relevant to the issues raised in the complaint filed in this matter.
In the. event you choose not to withdraw the objections and provide the information
requested, I will file a motion to strike your objections.
Please contact me at your earliest convenience to discuss this matter.
Very truly yours,
O'BRIEN, BARIC & CHERER
David A. Baric, Esquire
DAB/jl
cc: G arkuff
ile
D
dab.dir/litigation/firstchoice/cardinmiller/augustinel2.ltr
Law Offices
O'BRIEN, BARIC & SCHERER
19 West South Street
Carlisle, Pennsylvania 17013
Exhibit "c"
r--31 q
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
DEFENDANTS' MOTION FOR RULE TO COMPEL
ANSWERS TO DISCOVERY
AND NOW, come Defendants, Brian Cardin, Steve Miller, Cardin & Miller Physical
Therapy, PC, and Dutrey's Shoes Add, Inc. (referred to collectively as "Defendants"), by and
through their counsel, Keefer Wood Allen & Rahal, LLP, and files this Motion for Rule to
Compel Answers to Discovery pursuant to Local Rule 208.3(a)(3), averring as follows:
1. On or about June 29, 2006, Defendants served on the Plaintiff Requests for
Production of Documents and Interrogatories.
2. Defendants responded on or about August 10, 2006. Plaintiff objected to several
interrogatory questions and requests for production of documents, alleging information requested
was confidential.
3. On or about August 10, 2006, a discovery conference was held in the Chambers of
the Honorable J. Wesley Oler, Jr.
4. In the course of this discovery conference it was agreed that counsel for the parties
would attempt to enter into a mutually agreeable protective order regarding the discovery to
which counsel had objected.
5. On October 3, 2006, the Honorable J. Wesley Oler, Jr. issued an Order of Court
entering a protective order.
6. On or about November 10, 2006, counsel for Defendants forwarded discovery
requested by Plaintiff that was covered under the Protective Order.
7. The undersigned sent an e-mail to counsel for Plaintiff on or about December 1,
2006. Additionally, a letter was sent to counsel for Plaintiff on January 10, 2007. Both of these
communications requested Plaintiff's counsel provide responses to the outstanding discovery
requests. True and correct copies of these communications are attached hereto as Exhibit "A'.
8. To date, notwithstanding the entering of a Protective Order on October 3, 2006,
Plaintiff has not forwarded discovery covered under this Protective Order despite requests to
provide same.
WHEREFORE, Defendants respectfully request this Honorable Court issue a rule to
show cause on Plaintiff s counsel to show why Plaintiff should not be required to respond to the
outstanding discovery requests.
Dated: February 9 , 2007
Respectfully Submitted,
KEEFER WOOD ALLEN & RAHAL, LLP
By
Eric R. Auguste27
Attorney I.D. # 7
35 North 12`' Street, Suite 400
6
Lemoyne, PA 17043
(717) 612-5803
(717) 612-5805 (fax)
Attorneys for Defendants
EXHIBIT "A"
CHARLES W. RUBENDALL 11
ROBERT L. WELDON
EUGENE E. PEPINSKY, JR.
JOHN H. ENOS III
GARY E. FRENCH
DONNA S. WELDON
BRADFORD DORRANCE
JEFFREY S. STOKES
ROBERT R. CHURCH
STEPHEN L. GROSE
R. SCOTT SHEARER
ELYSE E. ROGERS
CRAIG A. LONGYEAR
JOHN A. FEICHTEL
DONALD M. LEWIS=
STEPHANIE KLEINFELTER
ERIC R. AUGUSTINE
TODD F. TRUNTZ
CAROL L. VERISH
., Fb ¢3!? T Mn
KEEFER WOOD ALLEN & RAHAL, LLP t
ATTORNEYS AT LAW ESTABLISHED IN 1679
635 NORTH 12T" STREET, 4T" FLOOR
LEMOYNE, PA 17043
PHONE 717-612-5800
FAX 717-612-5805
E1N No. 23-0716135
www.keeferwood.com
January 10, 2007
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
OF COUNSEL:
HEATH L. ALLEN
N. DAVID RAHAL
SAMUEL C. HARRY
HARRISBURG OFFICE
210 WALNUT STREET
HARRISBURG, PA 17101
PHONE 717-255-8000
717-612-5803
eau?sustine@keeferwood. com
RE: Outstanding Answers to Interrogatories Propounded Upon Plaintiff
Dear Mr. Baric:
You were served with Interrogatories propounded upon your client, First Choice
Rehabilitation Specialists, which were dated June 29, 2006. You responded with answers by
letter dated August 10, 2006.
Several objections you lodged claimed that the information sought included trade secrets
and other such materials. As you know, you forwarded to me a proposed Protective Order to
which I agreed. On October 3, 2006, more than three months ago, Judge Oler signed this
Protective Order. Notwithstanding this fact, I have yet to receive the discovery I requested in
June.
Please immediately send to me answers to the following Interrogatories:
1. Interrogatories Propounded Upon Plaintiff by Defendant Cardin & Miller Physical
Therapy, questions 13, 16, 17, 18 and 19;
2. Interrogatories Propounded Upon Plaintiff by Defendant Steve Miller, questions
1,2and5;and
3. Interrogatories Propounded Upon Plaintiff by Defendant Brian Cardin, questions
14, 15, 17 and 19.
David A. Baric, Esquire
January 10, 2007
Page 2
Additionally, you have not provided documentation for calls received by First Choice
facilities for appointments made with Brian Cardin to provide pedorthic services at Dutrey's
Shoes as requested in First Set of Requests for Production of Documents Propounded Upon
Plaintiff-by Defendant Brian Cardin.
Finally, Rule 4009.12(b) of the Pennsylvania Rules of Civil Procedure, define how
answers to requests for production of documents shall be structured. Defendant Cardin & Miller
Physical Therapy, P.C. propounded upon your Aient 16 specific requests for production of
documents. You answered by simply writing after all requests "see attached." You attached a
number of documents without any indication as to what the documents purport to be. Please
respond to Cardin & Miller's First Set of Requests for Production of Documents in the manner
so contemplated by the Pennsylvania Rules of Civil Procedure which will include an indication
of whether the requested documents are even present.
If you have any questions or concerns regarding this letter, please do not hesitate to
contact me.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
B
y
Eric R. Augu i e
waw
cc: Brian D. Cardin
Steve Miller
John Dutrey
Message
Dave,
Page 1 of 1
I called earlier today to discuss your email but you were unavailable so left a message, but haven't
received a response so I'm responding by email.
I'm not sure what indicates the start date. What you have there is a list of patients that Cardin &
Miller has treated since opening through the date of the date of the discovery request, which is
what you specifically asked for.
I'll be sending a list of items that you need to provide me which you had objected to in your
answers. Also, I'll be asking for some of the documents again as the fashion in which they were
sent does not adhere to the rules and, consequently, I have no idea what requests some of the
documents belong belong to.
Finally, I'm curious as to what your client is interested in discussing settlement. At no time have
you made a demand, and my clients have a sense that it is time to discuss settling the case.
Please contact me at your earliest convenience to discuss.
Best regards,
Eric
From: David Baric [mailto:DBadc@OBSiaw.com)
Sent: Friday, December 01, 2006 8:56 AM
To: Eric R. Augustine
Subject: First Choice v. Cardin
Eric,
The documents you recently produced indicate they are limited in time to the period 3/1/06 through 4/21/06. Why
was such a time limitation applied? Dave Baric
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013-3432
Phone (717) 249-6873 Fax (717) 249-5755
**************************************
Confidential Electronic Email Notice:
The information contained in this message is intended only for the persons to whom it is addressed and may contain
confidential or privileged material. Copying, distributing, dissemination, reliance on, or other use of the information by
persons other than the intended recipient(s) is prohibited. If you received this message in error, please notify the
sender and delete the entire message from any computer.
12/1/2006
CERTIFICATE OF SERVICE
I. Eric R. Augustine, Esquire, hereby certify that I have served the foregoing Defendant's
Motion for Rule to Compel Answers to Discovery, this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
By
? '--Z
Eric R. Augusti
Dated: February 9 , 2007
r
C
f
McCUEN & ASSOCIATES,
First Choice Rehabilitation,
Plaintiff
V.
BRIAN D. CARDIN,
STEVE MILLER,
CARDIN& MILLER PHYSICAL :
THERAPY, P.C., and
DUTREY' S SHOES ADD, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 06-1759 CIVIL TERM
ORDER OF COURT
AND NOW, this 16th day of February, 2007, upon consideration of Plaintiff's
Motion To Dismiss Objections to Request for Production of Documents, a discovery
conference is scheduled in chambers of the undersigned judge for Wednesday, March
14, 2007, at 1:30 p.m.
David A..Baric, Esq.
19 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
Eric R. Augustine, Esq.
Suite 301
415 Fallowfield Road
Camp Hill, PA 17011
Attorney for Defendants
BY THE COURT,
/' Z-,
J. esley Oler, ., J.
:rc
9 ? :8 WV I Z 83J LOOZ
ht?`?!.(::lNu'HJ.w.dd 3Hl dO
r
McCUEN & ASSOCIATES,
First Choice Rehabilitation,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BRIAN D. CARDIN,
STEVE MILLER,
CARDIN& MILLER PHYSICAL :
THERAPY, P.C., and
DUTREY'S SHOES ADD, INC.,
Defendants :
NO. 06-1759 CIVIL TERM
ORDER OF COURT
AND NOW, this 20th day of February, 2007, upon consideration of Defendant's
Motion For Rule To Compel Answers to Discovery, a Rule is hereby issued upon
Plaintiff, to show cause why the relief requested should not be granted.
RULE RETURNABLE at the discovery conference scheduled in this matter for
Wednesday, March 14, 2007, at 1:30 p.m.
X A..Baric, Esq.
avid
19 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
,,Xric R. Augustine, Esq.
635 North 12th Street
Suite 400
Lemoyne, PA 17043
Attorney for Defendants
BY THE COURT,
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McCUEN & ASSOCIATES,
First Choice Rehabilitation,
Plaintiff
V.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
BRIAN D. CARDIN,
STEVE MILLER,
CARDIN& MILLER PHYSICAL :
THERAPY, P.C., and
DUTREY'S SHOES ADD, INC.,
Defendants
NO. 06-1759 CIVIL TERM
IN RE: PLAINTIFF'S MOTION TO DISMISS OBJECTIONS
TO REQUEST FOR PRODUCTION OF DOCUMENTS and
DEFENDANT'S MOTION FOR RULE TO COMPEL ANSWERS
TO DISCOVERY
ORDER OF COURT
AND NOW, this 15th day of March, 2007, based on the indisposition of Plaintiff's
counsel, David A. Baric, Esq., and over objection of Eric R. Augustine, Esq., attorney for
Defendant, the discovery conference previously scheduled in the above matters for March
14, 2007, is rescheduled to Monday, April 9, 2007, at 9:30 a.m.
BY THE COURT,
avid A. Baric, Esq.
19 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
ric R. Augustine, Esq.
635 North 12th Street
Suite 400
Lemoyne, PA 17043
Attorney for Defendants
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MCCUEN & ASSOCIATES, d/b/a : IN THE COURT OF COMMON PLEAS OF
First Choice Rehabilitation: CUMBERLAND COUNTY, PENNSYLVANIA
Specialists,
Plaintiff CIVIL ACTION - EQUITY
v
BRIAN D. CARDIN, STEVE
MILLER, CARDIN & MILLER
PHYSICAL THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.,
Defendants No. 2006-1759 CIVIL TERM
IN RE: DISCOVERY CONFERENCE
ORDER OF COURT
AND NOW, this 9th day of April, 2007, upon
consideration of Plaintiff's Motion To Dismiss Objections to
Request for Production of Documents, and Defendant's Motion for
Rule To Compel Answers to Discovery, and following a conference
held in the chambers of the undersigned judge, in which Plaintiff
was represented by David A. Baric, Esquire, and Defendants were
represented by Eric R. Augustine, Esquire, and pursuant to an
agreement of counsel, it is ordered and directed as follows:
1. Within 20 days of the date of this order
Plaintiff shall supply to Defendants' counsel (1) verification in
proper form for the discovery responses previously provided to
Defendants, (2) the names of all First Choice patients known to
have received services from Brian D. Cardin, (3) the names of
potential and actual First Choice patients known to have received
services from Brian D. Cardin and/or Steve Miller, and (4)
details as to the decrease of value in Plaintiff's business
allegedly due to Defendants' actions;
2. Within 20 days of the date of this order,
Defendants shall supply to Plaintiff's counsel (1) the names of
all Pedorthic patients seen by Brian D. Cardin, and not revealed
previously to Plaintiff, from January 1, 2003, to the end of
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Mr. Cardin's employment in February of 2006, and (2) information
revealing income received from all the Pedorthic patients seen by
Brian D. Cardin from January 1, 2003, to the end of his
employment in February 2006, while he was working at Dutrey's.
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
For Plaintiff
Eric R. Augustine, Esquire
635 North 12th Street
Suite 400
Lemoyne, PA 17043
For Defendants
mae
By the Court,
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY'S SHOES ADD, INC.
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
MOTION TO SET DISCOVERY DEADLINES
NOW, comes Plaintiff, McCuen & Associates, by through through its attorneys,
O'BRIEN, BARIC & SCHERER, and files the within Motion to Set Discovery Deadlines and, in
support thereof, sets forth the following:
1. This litigation was commenced by Plaintiff in 2006.
2. The parties have exchanged document production requests, interrogatories and
several depositions have been taken.
3. Counsel for Plaintiff has requested that the Defendants proceed with any
additional discovery they believe necessary to prepare this matter for trial.
4. Defendants have delayed in the taking of any additional discovery they believe
necessary to prepare for trial.
5. The setting of deadlines to complete discovery will advance this matter to trial and
conclusion.
6. The Honorable J. Wesley Oler, Jr. has previously ruled on a discovery matter in
this case.
WHEREFORE, Plaintiff requests that this Court set deadlines for the completion of
discovery in this matter.
Respectfully submitted,
O'BRIEN, BARIC CHERE
r
David A. Baric, Esquire
I.D.# 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dir/litigation/firstchoice/cardinmiller/setdiscoverydeadlines.mot
CERTIFICATE OF SERVICE
I hereby certify that on December 11 , 20085 1, David A. Baric, Esquire of O'Brien,
Baric & Scherer, did serve a copy of Motion To Set Discovery Deadlines, by first class U.S. mail,
postage prepaid, to the parry listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
635 North 12th Street, Suite 400
Lemoyne, Pennsylvania 17043
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David A. Baric, Esquire
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MCCUEN & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF
d/b/a FIRST CHOICE CUMBERLAND COUNTY, PENNSYLVANIA
REHABILITATION
SPECIALISTS,
Plaintiff
V.
BRIAN D. CARDIN, STEVE
MILLER, CARDIN & MILLER
PHYSICAL THERAPY, P.C.,
and DUTREY' S SHOES ADD,
INC.,
Defendant
NO. 06-1759 CIVIL TERM
ORDER OF COURT
AND NOW, this 29`' day of December, 2008, upon consideration of Plaintiffs
Motion To Set Discovery Deadlines, a status conference is scheduled in chambers of the
undersigned judge for Thursday, February 5, 2009, at 11:00 a.m.
BY THE COURT,
J esley Ole r., J.
.avid A. Baric, Esq.
19 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
,, ric R. Augustine, Esq.
635 North 12t' Street
Suite 400
Lemoyne, PA 17043
Attorney for Defendants
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MCCUEN & ASSOCIATES,
d/b/a FIRST CHOICE
REHABILITATION SPECIALISTS:
Plaintiff
v
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BRIAN D. CARDIN, STEVE
MILLER, CARDIN & MILLER
PHYSICAL THERAPY, P.C.,
and DUTREY'S SHOES ADD,
INC.,
Defendants NO. 06-1759 CIVIL TERM
IN RE: STATUS CONFERENCE
ORDER OF COURT
AND NOW, this 5th day of February, 2009, upon
consideration of Plaintiff's Motion To Set Discovery Deadlines,
and following a status conference held pursuant to the motion on
this date, and with the concurrence of counsel for the Plaintiff
in the person of David A. Baric, Esquire, and counsel for
Defendants in the person of Stephen L. Grose, Esquire, it is
ordered and directed as follows:
1. Defendants' counsel shall promptly serve upon
Plaintiff's counsel an interrogatory requesting more detail as to
the damages being claimed by Plaintiff in this case;
2. Within 20 days of service of the aforesaid
interrogatory, Plaintiff shall answer without objection the said
interrogatory;
3. Within 60 days of receipt of the aforesaid
answer to the interrogatory, general discovery in the form of
depositions, interrogatories, and requests for admissions,
et cetera, shall be complete;
4. Within 45 days of the aforesaid termination
of general discovery, expert reports, if any, shall be exchanged
by counsel; and
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5. Thereafter either counsel may list this case
for trial.
By the Court,
V16avid A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
For Plaintiff
/ y`ephen L. Grose, Esquire
635 North 12th Street
Suite 400
Lemoyne, PA 17043
For Defendants
mae
MCCUEN & ASSOCIATES, d/b/a
First Choice Rehabilitation
Specialists,
Plaintiff,
V.
BRIAN D. CARDIN,
STEVE MILLER
CARDIN & MILLER PHYSICAL
THERAPY, P.C. and
DUTREY' S SHOES ADD, INC.
Defendants.
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-1759 CIVIL TERM
CIVIL ACTION-EQUITY
PRAECIPE TO DISCONTINUE
Kindly mark the above-captioned action as having been settled and discontinued with
prejudice.
Date:
Respectfully submitted,
O'BRIEN, BARIC & SC R
David A. Baric, Esquire
I.D. # 44853
19 West South Street
Carlisle, PA 17013
(717) 249-6873
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on October - , 2009, I, David A. Baric, Esquire of O'Brien, Baric
& Scherer, did serve a copy of Praecipe To Discontinue, by first class U.S. mail, postage prepaid,
to the party listed below, as follows:
Eric R. Augustine, Esquire
Keefer Wood Allen & Rahal, LLP
635 North 12th Street, Suite 400
Lemoyne, Pennsylvania 17043
c
David A. Baric, Esquire
RLED--OFF?CE
OF THE PROTHONOTARY
2009 OCT -7 PM 3: 05
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