HomeMy WebLinkAbout02-2333FRANKLIN FEED
DAVID C.
WERTIME
& SUPPLY COMPANY, :
Plaintiff :
WERTIME, Esquire, and :
& GUYER, :
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
No. 333
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the Court without further
notice for any money claimed in the Complaint 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 TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
Court Administrator
4th Floor
Cumberland County Courthouse
Carlisle, PA 17013
717-240-6200
FRANKLIN FEED & SUPPLY COMPANY, :
Plaintiff :
DAVID C. WERTIME, Esquire, and :
WERTIME & GUYER, :
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
JURY TRIAL DEMANDED
COMPLAINT
Franklin Feed & Supply Company, by its counsel, Keefer Wood
Allen & Rahal, LAP, files this action for professional
malpractice against David C. Wertime, Esquire, and Wertime &
Guyer, averring as follows:
Parties and Terms of Enqaqement
1. Plaintiff, Franklin Feed & Supply Company ("Franklin
Feed"), is a corporation organized and existing under the laws of
the Commonwealth of Pennsylvania, with its principal place of
business located at 1977 Philadelphia Avenue, Chambersburg,
Franklin County, Pennsylvania.
2. Defendant David C. Wertime, Esquire ("Attorney
Wertime"), is an attorney duly licensed to practice law in the
Commonwealth of Pennsylvania, who conducts his law practice from
an office located at 50 Eastern Avenue, Greencastle, Pennsylvania
17225.
3. Defendant Wertime & Guyer is a law partnership or
professional association of attorneys whose principal place of
business is located at 50 Eastern Avenue, Greencastle,
Pennsylvania 17225.
4. Plaintiff avers, on information and belief, that at all
times relevant hereto, Attorney Wertime was a partner or
principal in the law firm of Wertime & Guyer, and conducted his
professional practice under the name of that law firm and from
its offices in Greencastle, Pennsylvania.
5. Plaintiff avers, on information and belief, that
Attorney Wertime has regularly performed professional legal
services on behalf of his clients in Cumberland County.
Plaintiff further avers that certain of the transactions and
occurrences out of which its causes of action arose took place in
Cumberland County. Accordingly, venue in this matter is proper
in Cumberland County.
6. Beginning in October 1992, Franklin Feed retained and
employed Attorney Wertime as its attorney in connection with the
matters described more fully herein.
7. Attorney Wertime accepted such professional employment
and undertook to perform legal services on Franklin Feed's
behalf, as described more fully herein.
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8. Franklin Feed paid fees to defendants for professional
services rendered by Attorney Wertime and his law firm to
Franklin Feed.
9. As a result of his attorney-client relationship with
Franklin Feed, Attorney Wertime and his law firm had a duty to
represent Franklin Feed with the reasonable care, skill, and
diligence possessed and exercised by other attorneys in the
community in similar circumstances.
Backqround
10. In 1992, a dispute arose between Franklin Feed and
Garry Martin and Victoria Martin, individually and t/d/b/a
Creekside Farms ("the Martins"), when the Martins refused to pay
invoices for animal feed that Franklin Feed sold and delivered to
the Martins' dairy farm.
11. In October 1992, Franklin Feed retained Attorney
Wertime to provide professional legal representation in
connection with the dispute with the Martins. Attorney Wertime
thereafter prepared and mailed a letter to the Martins on Wertime
& Guyer stationery, demanding on Franklin Feed's behalf that the
Martins pay the overdue invoices.
12. During the course of his professional engagement by
Franklin Feed, Attorney Wertime became aware of the Martins'
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contention (and basis for their refusal to pay) that some of the
feed sold to them by Franklin Feed was defective and that it had
caused the deaths of some of their cows and consequential
economic losses to their business.
13. On February 2, 1993, on Franklin Feed's behalf,
Attorney Wertime filed a civil action against the Martins in the
Franklin County Court of Common Pleas, docketed to A.D. No. 1993-
60, to collect the unpaid invoices (hereinafter referred to as
"the collection suit").
14. In an answer with new matter filed on or about
February 11, 1993, the Martins asserted affirmative defenses to
the collection suit, alleging they had purchased defective feed
from Franklin Feed and that it had harmed their dairy cows, and
that the seller had thereby breached express and implied
warranties.
15. Attorney Wertime prepared and filed Franklin Feed's
reply to the Martins' new matter, and was thus, as early as
February 1993, fully informed and aware of the Martins' claim
that Franklin Feed had sold them defective feed and that their
business had been damaged as a result.
16. On October 22, 1993, while the collection suit was
still pending, the Martins commenced a civil action against
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Franklin Feed and Purina Mills, Inc. ("Purina") in this Court,
docketed to No. 3356 Civil 1993 ("the Martin suit"), by filing a
praecipe for issuance of writs of summons.
17. One of the writs was shortly thereafter served upon
Franklin Feed, who promptly forwarded a copy and brought the
Martin suit to the attention of Franklin Feed's counsel, Attorney
Wertime.
18. After a brief investigation that consisted of one or
two telephone calls to Purina's counsel, Attorney Wertime advised
Franklin Feed that the Martins had filed suit in the wrong
county, instructed Franklin Feed to ignore the writ of summons,
placed his copy of the writ in his law firm's file, and took no
further action with respect to the Martin suit.
19. As a consequence of Attorney Wertime's failure to
provide appropriate legal advice and counsel, Franklin Feed made
no effort at that time to notify its commercial general liability
insurance carrier, Pennsylvania Manufacturers' Association
Insurance Company ("PMA"), regarding the Martins' claim or the
fact that they had initiated a lawsuit against Franklin Feed.
20. In early 1995, while Attorney Wertime was still
representing Franklin Feed, the collection suit proceeded to an
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arbitration hearing that lasted several trial days, spread over a
period of months.
21. Attorney Wertime represented Franklin Feed throughout
the arbitration hearing, during which extensive testimony was
presented (including the testimony of experts) as to whether the
feed that Franklin Feed supplied to the Martins was defective.
22. On June 22, 1995, the arbitrators issued an award of
judgment in favor of the Martins,
Feed.
23.
provide
with no recovery by Franklin
As a consequence of Attorney Wertime's failure to
appropriate legal advice and counsel, Franklin Feed did
not exercise its right to appeal the adverse arbitration decision
and obtain an automatic trial de novo, as authorized by Pa. R.
Civ. P. 1308 and 1311, and was thereby deprived of the
opportunity to obtain a different and potentially more beneficial
result.
24. Attorney Wertime further neglected to provided advice
and counsel to Franklin Feed regarding the risk that findings of
fact essential to the arbitration award, including any finding
that its feed was defective, might be given collateral estoppel
effect by this Court and thereby be detrimental to Franklin
Feed's defense of the pending Martin suit.
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25. By reason of the aforementioned conduct, Attorney
Wertime filed to exercise the ordinary skill and knowledge
possessed by attorneys in the community.
26. As a proximate result of Attorney Wertime's acts or
omissions, Franklin Feed's ability to defend itself against
claims for damages asserted in the Martin suit was prejudiced and
impaired, and/or its defense was made more costly.
27. In October 1995, approximately three (3) months after
the expiration of Franklin Feed's right to appeal from the
arbitration award, Franklin Feed received a written demand for
settlement of the Martin suit, which included a specification of
alleged damages; Franklin Feed promptly forwarded a copy of this
correspondence to its insurer, PMA.
28. In a complaint filed on December 19, 1995, in the
Martin suit, the Martins alleged they had incurred damages
exceeding the sum of $400,000 due to various causes of action
arising from the sale to them by Franklin Feed of allegedly
defective animal feed.
29. In their complaint, the Martins made specific reference
to the arbitration award in the collection suit and asserted that
Franklin Feed was collaterally estopped from denying that the
feed sold by Franklin Feed was defective.
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30. On January 22, 1996, PMA denied coverage for the claims
asserted in the Martin suit and disclaimed any further obligation
to defend Franklin Feed. Shortly thereafter, PMA withdrew from
the defense of the Martin suit.
31. In denying coverage, PMA asserted that it had been
prejudiced by Franklin Feed's delay in providing notice of the
Martins' claim and lawsuit, because the issues previously decided
by the arbitrators' award in the collection suit were likely to
be given collateral estoppel effect in the Martin suit.
32. As a result of PMA's actions, which could have been
avoided if Franklin Feed had been advised by Attorney Wertime to
provide prompt notice of the Martins' claim to PMA and to forward
a copy of the Martin writ to PMA upon receipt in 1993, Franklin
Feed was forced to hire defense counsel at its own expense and
incurred attorney's fees and other defense costs associated with
the defense of the Martin suit.
33. To secure its right to a defense and potential coverage
under PMA's policy, and as a proximate result of Attorney
Wertime's professional negligence, Franklin Feed was compelled to
file an action for declaratory judgment in this Court, docketed
to No. 74 Civil 1998 (~PMA action").
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34. On June 11, 1999, this Court (by Hon. J. Wesley Oler,
Jr., J.) granted Franklin Feed's motion for partial summary
judgment in the PMA action, declaring that PMA was obligated
under its insurance policy to defend Franklin Feed in the Martin
action.
35. In an order issued the same day in the Martin action,
the Court also held that as a result of the prior arbitration
decision in the collection action handled by Attorney Wertime,
Franklin Feed ~is estopped from denying that it breached the
contract of sale of feed to plaintiffs."
36. Following this Court's partial summary judgment order
in the PMA action, PMA agreed to henceforth provide counsel to
defend Franklin Feed at PMA's expense, and also agreed to provide
reimbursement of a portion of the legal expenses previously
incurred by Franklin Feed in defending the Martin action.
Franklin Feed will not seek recovery of the reimbursed expenses
from defendants in this action. However, Franklin Feed
reasonably agreed to accept less than full reimbursement of its
legal expenses from PMA as consideration for the discontinuance
of the PMA action and to thereby mitigate the losses that were
accruing as a result of defendants' professional malpractice.
Accordingly, Franklin Feed's damages in this action include the
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unreimbursed portion of the legal expenses it incurred in
defending the Martin action.
37. As a direct and proximate result of defendants'
professional negligence, as described above, Franklin Feed has
been damaged.
38. Franklin Feed's pecuniary losses include, without
limitation, legal fees and other expenses incurred in pursuing
the PMA action, legal fees and other expenses incurred in
defending the Martin action (to the extent not reimbursed by
PMA), and other damages proximately caused by defendants'
professional negligence, in a total amount that exceeds the
jurisdictional limit for mandatory arbitration in this Court.
COUNT I
(Professional Negligence)
39. The above paragraphs 1 through 37 are incorporated here
by reference as if fully restated.
40. As a result of their attorney-client relationship with
Franklin Feed, defendants had a duty to represent Franklin Feed
with the reasonable care, skill, and diligence possessed and
exercised by other attorneys in the community in similar
circumstances.
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41. Defendants breached the duty of care owed Franklin
Feed, as follows:
a. Failing to advise and counsel Franklin Feed
to provide timely notice to PMA of the Martins' claim
and the service of the writ of summons upon Franklin
Feed in the Martin suit;
b. Failing to provide appropriate legal advice
and counsel to Franklin Feed regarding its right to
appeal the adverse arbitration decision and obtain an
automatic trial de novo, as authorized by Pa. R. Civ.
P. 1308 and 1311, with the result that Franklin Feed
waived its right to appeal and lost the opportunity to
obtain a different and potentially more beneficial
result; and
c. Failing to advise and counsel Franklin Feed
of the potentially adverse consequences of waiving its
right to appeal the adverse arbitration award, such as
the risk that findings of fact essential to the
arbitration award against Franklin Feed, including,
inter alia, any finding that its feed was defective,
might be given collateral estoppel effect by this Court
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and thereby be detrimental to Franklin Feed's defense
of the Martin suit.
42. By reason of the conduct alleged herein, defendants
failed to exercise the ordinary skill and knowledge possessed by
other attorneys in the community in similar circumstances and
thereby breached the duty of care, all to Franklin Feed's damage.
43. As a direct and proximate result of defendants'
professional negligence, as described above, Franklin Feed has
been damaged in a total amount that exceeds the jurisdictional
limit for mandatory arbitration in this Court.
WHEREFORE, plaintiff Franklin Feed respectfully requests
that this Honorable Court enter an award of damages against
defendants in an amount exceeding the limit for mandatory
arbitration in this Court, plus interest, costs and such other
and further relief as the Court determines to be fair and just.
COU~T II
(Breach of Contract)
44. The above paragraphs 1 through 43 are incorporated by
reference as if fully stated at this place.
45.
provide
Franklin Feed has been damaged,
As a result of defendant's breach of their agreement to
legal services to Franklin Feed in a professional manner,
as set forth above.
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46. AS a direct and proximate result of defendants' breach
of contract, as described above, Franklin Feed has been damaged
in a total amount that exceeds the jurisdictional limit for
mandatory arbitration in this Court.
WHEREFORE, plaintiff Franklin Feed respectfully requests
that this Honorable Court enter an award of damages against
defendants in an amount exceeding the limit for mandatory
arbitration in this Court, plus interest, costs and such other
and further relief as the Court determines to be fair and just.
Dated: May 10, 2002 By
Respectfully submitted,
KEEFER WOOD ALLEN & P~AHAL,
LLP
Char~e~~
Atty. No. 23172
Donald M. Lewis III
Atty. No. 58510
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 8038
Attorneys for plaintiff
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VERIFICATION
The undersigned,
states that:
1.
Company,
2.
behalf;
3.
Samuel E. Miller, hereby verifies and
He is General Manager of Franklin Feed & Supply
plaintiff herein;
He is authorized to make this verification on its
The facts set forth in the foregoing complaint are true
and correct
belief;
4.
subject
to the best of his knowledge, information, and
and
He is aware that false statements herein are made
to the penalties of 18 Pa.C.S. Sec. 4904, relating to
unsworn falsification to authorities.
Dated: May A, 2002
FRANKLIN FEED & SUPPLY COMPANY, :
Plaintiff :
:
V. :
DAVID C. WERTIME, Esquire, and :
WERTIME & GUYER, :
:
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
No. 02-2333 Civil
ACCEPTANCE OF SERVICE AND
ENTRY OF APPEARANCE ON BEHALF OF DEFENDANTS
TO: Curt Long, Prothonotary
Please enter my appearance for defendants in this matter and
note the docket to reflect that, being duly authorized to do so,
I hereby accept service of plaintiff's complaint on behalf of
defendants David C. Wertime, Esquire and Wertime & Guyer.
BOSWELL TINTNER PICCOLA &
WICKERSHA_M
Dated: May /~ , 2002 By
Jeffrey R. Boswell
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
717-236-9377
Attorneys for defendants
CERTIFICATE OF SERVICE
I, Jeffrey R. Boswell, Esquire, one of the attorneys for
defendant, hereby certify that I have served the foregoing paper
upon counsel of record this date by depositing a true and correct
copy of the same in the United States mail, first-class postage
pre~aid, addressed as follows:
Charles W. Rubendall II, Esquire
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
BOSWELL TINTNER PICCOLA &
WICKERSHAM
Dated: May /S , 2002
By
Je~y R. Boswel~l
Jeffrey R. Boswell, Esquire
Supreme Court I.D. #25444
BOSWELL, TINTNER, PICCOLA & WICKERSHAM
315 North Front Street
P. Q. Box 741
Harrisburg, Pennsylvania 17108-0741
Attorneys for Defendants
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff,
V.
DAVID C. WERTIME, Esquire, and
WERTIME & GUYER,
Defendants.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-2333 CIVIL
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO:
Franklin Feed & Supply Company
and its attorneys
Charles W. Rubendall, II, Esquire
Donald M. Lewis, III, Esquire
KEEFER, WOOD, ALLEN & RAHAL, LLP
210 Walnut Street
P. O. box 11963
Harrisburg, PA 17108-1963
You are hereby notified to file a written response to the enclosed Answer with New Matter
within twenty (20) days from service hereof or a judgrnent may be entered against you.
BOSWELL, TINTNER, PICCOLA & WlCKERSHAM
BY:
Je{¥1e~ R~-Boswell, Esquire
Date: Julyt.?_~, 2002
Jeffrey R. Boswell, Esquire
Supreme Court I.D. #25444
BOSWELL, TINTNER, PICCOLA & WlCKERSHAM
315 North Front Street
P. O. Box 741
Harrisburg, Pennsylvania 17108-0741
Attorneys for Defendants
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff,
V.
DAVID C. WERTIME, Esquire, and
WERTIME & GUYER,
Defendants.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-2333 CIVIL
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
AND NOW comes the Defendants, David C. Wertime, Esquire, and Wertime & Guyer, by
and through their attorneys, Jeffrey R. Boswell, Esquire, and Boswell, Tintner, Piccola &
Wickersham, and makes this Answer With New Matter set forth, as follows:
Parties and Terms of Engagement
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted in part, and denied in part. Defendants admit that they were engaged to
represent Plaintiff solely in connection with the collection of a certain debt for animal feed sold to
Garry Martin and Victoria Martin, individually, and t/d/b/a Creekside Farms ("the Martins"). The
Defendants deny that they were retained by Plaintiff for any other purpose. Defendants further deny
that they were retained to serve as Plaintiff's corporate counsel. Defendants further deny that they
were retained to provide advice concerning or otherwise to defend a civil action commenced by the
Martins against Franklin Feed & Supply Company ("Franklin Feed") and Purina Mills, Inc.
("Purina") in the Court of Common Pleas of Cumberland County docketed to No. 3356 Civil 1993.
7. Admitted in part, and denied in part. Defendants admit that they were engaged to
represent Plaintiff solely in connection with the collection of a certain debt for animal feed sold to
Garry Martin and Victoria Martin, individually, and t/d/b/a Creekside Farms ("the Martins"). The
Defendants deny that they were retained by Plaintiff for any other purpose. Defendants further deny
that they were retained to serve as Plaintiff's corporate counsel. Defendants further deny that they
were retained to provide advice concerning or otherwise to defend a civil action commenced by the
Martins against Franklin Feed and Purina Mills, Inc. ("Purina") in the Court of Common Pleas of
Cumberland County docketed to No. 3356 Civil 1993.
8. Admitted, with the clarification that said fees were paid for and in consideration of
performance of legal services pursuant to the limited scope of representation as set forth in more
detail in Paragraphs 6 and 7, above.
9. Admitted, with the clarification that Defendants fulfilled said duty, which duty was
limited by the terms of the representation.
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Backeround
10. Admitted.
11. Admitted. By way of further answer, Defendants admit that theywere retained solely
to collect the outstanding debt occasioned by the Martins' nonpayment of certain invoices, and aver
further that the professional legal representation was limited to that single assignment.
12. Admitted. By way of further answer, Attorney Wertime learned during the
preparation for the arbitration of the collection action that the Martins refused to pay for the feed
because they contended the feed was allegedly defective, but the Martins did not file a counterclaim
in the collection action for any consequential economic losses to their business, nor aver within the
scope of the collection action any claim against Plaintiffs relative to the integrity of the feed at issue.
13. Admitted.
14. Denied as stated; the answer and new matter speaks for itself. By way of further
answer, Defendants incorporate herein by reference their answer to Paragraph 12, above.
15. Admitted in part, and denied in part. Attorney Wertime admits that he prepared and
filed Franklin Feed's Reply to Martins' New Matter, but he denies that he was, in February, 1993,
fully informed and aware of Martins' claims. Attorney Wertime avers that Franklin Feed vigorously
disputed the Martins' claims and, thus, Attorney Wertime was not fully informed by the Martins, nor
by Franklin Feed or Purina, about the feed and the damage it may have caused.
16. Admitted.
17. Admitted in part, and denied in part. Attorney Wertime admits that he was provided
with a copy of the Writ of Summons filed by the Martins in the Court of Common Pleas of
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Cumberland County. However, Attorney Wertime denies that he was engaged to provide any legal
advice about that action or to defend that action.
18. Denied. Attorney Wertime denies that the Plaintiff's averment is a proper
representation of the facts, and Defendants therefore demand proof at trial. To the contrary, Attorney
Wertime admits that he spoke with Purina's counsel, and thereafter confirmed that he considered his
engagement to be for the collection of the debt for the nonpayment for certain invoices, that the
Martins' filing of the Writ of Summons in Cumberland County did not require Franklin Feed to file
an answer or other pleading at that time, that he (Attorney Wertime) had not been engaged to defend
Franklin Feed in the Martins' civil action in Cumberland County, and that he (Attorney Wertime)
did not file an answer or other pleading in the Cumberland County action because he did not
represent Franklin Feed in that action nor did he file his appearance in that action.
19. Denied. Plaintiff' s aveiment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
20. Admitted, with the clarification that he was still representing Plaintiff within the
limited scope of representation as set forth in Paragraphs 6 and 7, above.
21. Admitted, with the clarification that he was still representing Plaintiff within the
limited scope of representation as set forth in Paragraphs 6 and 7, above.
22. Admitted. By way of further answer, Defendants aver that the arbitration award
provided no opinion or memorandum as to the basis for the arbitrators' award.
23. Denied. Plaintiff's averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment. By way of further
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answer, Defendants did advise Plaintiff of its appellate fights; Plaintiff decided not to appeal because
of economic reasons, the costs that it had already spent to attempt to collect the debt from the
Martins and the prospective costs for a trial upon appeal, costs that exceeded the amount of the debt
for nonpayment of the invoices.
24. Denied. The Plaintiff's averment states a legal conclusion to which no answer is
required. To the extent a response is deemed required, the Defendants deny the averment.
25. Denied. The Plaintiff's averment states a legal conclusion to which no answer is
required. To the extent a response is deemed required, the Defendants deny the averment.
26. Denied. The Plaintiff's avemient states a legal conclusion to which no answer is
required. To the extent a response is deemed required, the Defendants deny the avemient.
27. Admitted in part, and denied in part. Attorney Wertime admits that he is aware of
the facts contained in this averment. However, Defendants deny that they were engaged to defend
the Martins' suit in the Court of Common Pleas of Cumberland County, and Defendants deny that
they had any duty to provide advice with regard to insurance coverage for the Martins' claims.
28. Admitted in part, and denied in part. The Martins' complaint speaks for itself. By
way of further answer, Defendants deny that they were engaged to defend or otherwise provide legal
counsel to Franklin Feed with respect to the action filed by the Martins and the allegations raised
therein. Further, Defendants incorporate herein by reference their answers to Paragraphs 6 and 7,
above.
29. Admitted in part, and denied in part. The Martins' complaint speaks for itself. By
way of further answer, Defendants deny that theywere engaged to defend or otherwise provide legal
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counsel to Franklin Feed with respect to the action filed by the Martins and the allegations raised
therein.
30. Admitted in part, and denied in part. Defendants admit that they later learned that
PMA denied coverage to Franklin Feed and that PMA disclaimed its obligation to defend Franklin
Feed in the Martins' action filed in Cumberland County, but Defendants deny that they were ever
engaged to represent Franklin Feed in the Cumberland County action, nor did they owe any duty to
provide advice to Franklin Feed in that action.
31. Admitted in part, and denied in part. Defendants are now aware of PMA's assertion
set forth in this averment. However, Defendants deny that PMA's assertion was correct, as the only
issue decided by the arbitrators was the denial of Franklin Feed's demand for payment of the debt.
To the extent that Franklin Feed states a conclusion in this averment, no answer is required. To the
extent a response is deemed required, the Defendants deny the averment.
32. Denied. Attorney Wertime denies that he had a duty to provide advice to Franklin
Feed concerning its insurance coverage and to provide advice as to Franklin Feed's duties and
obligations under its insurance policy to provide notice of any claims to PMA. By way of further
answer, Attorney Wertime asserts that he was never requested to provide advice nor to represent
Franklin Feed in the Martins' action filed in Cumberland County and that Attorney Wertime is
unaware as to the specific attorneys fees and defense costs and the reasonableness of same in
Franklin Feed's defense of the Martins' civil action in Cumberland County, and therefore he
demands proof at trial.
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33. Denied. Plaintiff's averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
34. Admitted. Defendant Wertime later received information concerning Judge Oler
granting Franklin Feed's motion for partial summaryjudgrnent in the action filed by Franklin Feed
against PMA.
35. Admitted. Defendant Wertime later received information concerning Judge Oler
granting Franklin Feed's motion for partial summaryjudgrnent in the action filed by Franklin Feed
against PMA.
36. Denied. Plaintiff's averment sets forth facts not known to Defendants, and
Defendants therefore demand proof at trial.
37. Denied. Plaintiff's averment sets forth a legal conclusion to which no answer is
required. To the extent a response is deemed required, the Defendants deny the averment.
38. Denied. Plaintiff's averment set forth a legal conclusion to which no answer is
required. To the extent a response is deemed required, the Defendants deny the averment. By way
of further answer, Defendants deny that any pecuniary losses were caused byDefendants' negligence
and to the extent Plaintiff paid legal fees and expenses, Defendants are without specific information
and therefore demand proof at trial. Furthermore, Defendants deny that the alleged losses are
reasonable.
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ANSWER TO COUNT I
(Professional Negligence)
39. Defendants incorporate the answers stated in paragraphs 1 through 38 by reference
as if fully restated.
40. Denied. Plaintiff's averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
41. Denied. Plaintiff's averments in 41 a., b., and c. state legal conclusions to which no
answers are required. To the extent a response is deemed required, the Defendants deny the
averment.
42.
Denied. Plaintiff s averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
43. Denied. Plaintiff's averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
ANSWER TO COUNT H
(Breach of Contract)
44. The Defendants incorporate their answers stated in paragraphs 1 through 43 by
reference as if fully restated.
45. Denied. Plaintiff's averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
46. Denied. Plaintiff's averment states a legal conclusion to which no answer is required.
To the extent a response is deemed required, the Defendants deny the averment.
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WHEREFORE, Defendants, David C. Wertime, Esquire, and Wertime & Guyer respectfully
request that this Honorable Court dismiss the Complaint of Franklin Feed & Supply Company and
direct costs to be paid by Plaintiffs.
47.
fully restated.
NEW MATTER
Defendants incorporate their answers to paragraphs 1 through 46 by reference as if
48.
County.
Prior to October, 1993, and, thereafter, Plaintiff occupied real estate in Franklin
49. Plaintiff, at all times relevant to this action, had insurance coverage on account of
this real estate.
50. At all times relevant to this action, Plaintiff had numerous motor vehicles used to
conduct its business.
51. At all times relevant to this action, Plaintiff had insurance coverage on account of
these vehicles.
52. At all times relevant to this action, Plaintiffreceived annually from Pennsylvania
Manufacturers' Association Insurance Company ("PMA") and perhaps other insurance companies,
a proposal for various insurance coverages.
53. Prior to October, 1993, Plaintiff had filed claims for benefits under various insurance
policies that it maintained in the course of its commercial business operations, and had both actual
and constructive notice of the prerequisites, including all applicable notice requirements, for
presenting such claims.
-9-
54. The PMA policy at issue did not require Plaintiffto notify the insurer of the collection
action against the Martins, nor of the Martins' answer to the complaint filed in that action, which
answer contained no counterclaim against the Plaintiff.
55. In the Martins' answer to the collection action, the Martins asserted various
affirmative defenses, but did not assert any counterclaim against Franklin Feed.
56. The arbitrators entered their award in favor of the Martins on June 22, 1995.
57. The arbitrators' award did not include any findings of fact or conclusions of law and
did not state the basis for their award in favor of the Martins, nor acknowledge in any way the
existence of a pending claim and/or cause of action by the Martins against the Plaintiff.
58. In October, 1995, Plaintiff received a written demand for settlement of the Martin
action in Cumberland County, which demand included a list of alleged damages.
59. At no time after its receipt of the October, 1995 settlement demand from the Martins
did Plaintiff engage the services of Defendants with respect to the demand, or otherwise consult
Defendants and request advice and counsel from them relative to the same.
60. On December 19, 1995, the Martins filed a complaint against Purina and Franklin
Feed in the Cumberland County action, alleging for the first time that they incurred damages in
excess of $400,000 relating to the sale to them by Purina and Franklin Feed of purportedly defective
animal feed.
61. At no time after having been served with the Martins' complaint, did Plaintiff engage
the services of Defendants with respect to that complaint, or otherwise consult Defendants and
request advice and counsel from them relative to the same.
-10-
67.
granted.
68.
Defendants.
69.
62. Plaintiff engaged the services of legal counsel, other than Defendants, to provide
advice relative to the Martins' claims concerning the allegedly defective animal feed, and to
represent its interests as of record in the Martins' lawsuit against Plaintiff and Purina.
63. With respect to the action filed by Plaintiff against its insurer, and referenced by the
Plaintiff in Paragraph 33, supra., upon advice of its counsel of record in that action and analysis of
the relative strengths and weaknesses of the case, Plaintiffelected to settle its claim with PMA upon
PMA's payment to Franklin Feed of less than what Franklin Feed paid for attorneys fees and defense
costs in defense of the Martin action in Cumberland County.
64. Plaintiff had an independent, contractual duty to report any claims, including the
Martin claim, under its insurance policy with PMA.
65. The defense costs and attorneys fees incurred by Plaintiff, as alleged in Paragraphs
36 and 38 of the Complaint, wgre unreasonable.
66. The damages paid by PMA to Franklin Feed for attorneys fees and defense costs are
the proper measure of those damages.
Plaintiff's Complaint fails to set forth a cause of action upon which relief can be
The doctrine of estoppel bars, in whole or in part, Plaintiff's claims against
The doctrine of accord and satisfaction bars, in whole or in part, Plaintiff's claims
against Defendants.
70.
71.
failures to act.
Plaintiff's claims may be barred in whole or in part by the defense of release.
Plaintiff suffered no damages as a result of the Defendants' alleged acts and/or
72. Plaintiff's damages may be reduced in whole or in part by the doctrine of mitigation.
73. Plaintiff's damages, if any, were caused by the actions and/or omissions of persons
other than Defendants, and over whom Defendants had no control or fight to control.
74. Plaintiff consented to the fact and temis of the respective settlements that it reached
with PMA and with the Martins.
75. At the time that it agreed to the respective settlements with PMA and the Martins,
Plaintiff relied, in whole or in part, upon the advice of legal counsel.
WHEREFORE, Defendant demands that judgment be entered in Defendants' favor and
against the Plaintiffs, plus costs of suit.
BOSWELL, TINTNER, PICCOLA & WICKERSHAM
Dated: July Ot , 2002
By:
~efrf~ey R. Boswell, Esquire
I.D. No. 25444
315 N. Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Attorneys for Defendants
-12-
VERIFICATION
I, David C. Wertime, Esquire, state upon personal knowledge or information and belief
that the averments set forth in the Answer With New Matter are true.
I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unswom falsification to autho{~ j/~.~..~
~rtime, ]~sq~
Dated:
CERTIFICATE OF SERVICE
I, Jeffrey R. Boswell, Esquire, do hereby certify that I have served a true and correct copy of
the foregoing document to the following:
Charles W. Rubendall, Il, Esquire
Donald M. Lewis, IR, Esquire
KEEFER, WOOD, ALLEN & RAHAL, LLP
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
Attorneys for Plaintiff
Method of Service:
__X First class mail
Certified mail/Restricted Delivery
Hand-delivery
BOSWELL, TINTNER, PICCOLA & WlCKERSHAM
By: jr . .~~/.Ax
mtrey R. Boswell~Esquire
Dated: July I"] , 2002
FRANKLIN FEED & SUPPLY COMPANY, :
:
Plaintiff :
:
Y. :
:
DAVID C. WERTIME, Esquire, and :
WERTIME & GUYER, :
:
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
No. 02-2333 CIVIL
PLAINTIFF'S REPLY TO DEFE~TDANTS' NEW MATTER
Plaintiff Franklin Feed & Supply Company ("Franklin Feed"),
by its counsel, Keefer Wood Allen & Rahal, LLP, files this reply
to new matter asserted by defendants, David C. Wertime, Esquire
and Wertime & Guyer, averring as follows:
47. Plaintiff incorporates here by reference paragraphs 1
through 46 of its complaint, as if fully restated.
48. Admitted.
49. Admitted, with the clarification that in admitting the
averments of this paragraph, plaintiff assumes defendants'
reference to "this real estate" is meant to refer to the real
estate occupied by Franklin Feed in Franklin County.
50. Admitted.
51. Admitted, with the clarification that in admitting the
averments of this paragraph, plaintiff assumes defendants'
reference to ~these vehicles" is meant to refer to the motor
vehicles used by Franklin Feed to conduct its business.
52. Admitted in part and denied in part. It is admitted
that at all times relevant to this action, Franklin Feed was
insured for commercial general liability by PMA. Franklin Feed
is no longer insured by PMA, and has obtained commercial general
liability insurance from other insurance companies. The
remaining averments of this paragraph are denied.
53. Admitted in part and denied in part. It is admitted
that prior to October 1993, Franklin Feed presented one or more
claims for insurance coverage. The averment that Franklin Feed
had actual and constructive notice of the prerequisites for
presenting insurance claims constitutes a legal conclusion to
which no reply is required. To the extent a reply is deemed
necessary, plaintiff avers that upon receipt of the writ of
summons in the Martin action, it forwarded a copy to Attorney
Wertime for his review and guidance.
54. Denied, for the reason that the PMA policy speaks for
itself and/or its alleged interpretation constitutes a legal
conclusion to which no reply is required.
55. Admitted.
56. Admitted.
57. Denied, for the reason that the arbitrators' award is a
written document that speaks for itself and/or its alleged
-2-
interpretation constitutes a legal conclusion to which no reply
is required.
58. Admitted.
59. Admitted in part and denied in part. It is admitted
that Franklin Feed did not engage defendants' services after
receipt of the October 1995 settlement demand letter. Instead,
Franklin Feed promptly forwarded a copy to PMA because it was
evident from the letter, contrary to information and advice
previously provided by Attorney Wertime, that the Martins were
quite serious about pursuing a significant claim for damages
against Franklin Feed. PMA thereafter contacted Attorney Wertime
to obtain further information regarding the Martin action, and
appointed counsel to represent Franklin Feed pending completion
of PMA's coverage investigation. Franklin Feed therefore denies
any implication in this paragraph that its attorney-client
relationship with defendants did not encompass the Martin action.
60. Admitted in part and denied in part. It is admitted
that the Martins filed a complaint against Franklin Feed on or
about December 19, 1995. It is denied that the Martins alleged
for the first time in that complaint that they incurred damages
in excess of $400,000 relating to the purchase of defective
animal feed. To the contrary, such allegations were made in the
-3-
Martins' October 1995 settlement demand letter and on previous
occasions.
61.
62.
Admitted.
Admitted in part and denied in part. It is admitted
that Franklin Feed did not engage defendants' services after
receipt of the complaint in the Martin action. The averments of
this paragraph are otherwise denied, because defendants counseled
Franklin Feed regarding the Martins' allegations in connection
with the arbitration of the collection suit, and also provided
advice regarding the service of the writ of summons in the Martin
action.
63. Denied as stated. Franklin Feed settled its claim
against PMA and reasonably agreed to accept less than full
reimbursement of its legal expenses from PMA as consideration for
the discontinuance of the PMA action and to thereby mitigate the
losses that were accruing as a result of defendants' professional
malpractice.
64. Denied as a legal conclusion to which no reply is
required. To the extent a reply is deemed necessary, Franklin
Feed avers that Attorney Wertime instructed it to ignore the writ
of summons served in the Martin action, but Franklin Feed
thereafter promptly notified PMA regarding its receipt of the
Martins' October 1995 settlement demand letter.
--4--
65. Denied as a legal conclusion to which no reply is
required. To the extent a reply is deemed necessary, Franklin
Feed avers that the attorneys' fees and other defense costs were
reasonable.
66. Denied as a legal conclusion to which no reply is
required. To the extent a reply is deemed necessary, Franklin
Feed avers that PMA did not pay ~damages" but made a lump sum
payment to settle and compromise a disputed claim and to avoid
further litigation with Franklin Feed.
67. Denied as a legal conclusion to which no reply is
required.
68. Denied as a legal conclusion to which no reply is
required.
69. Denied as a legal conclusion to which no reply is
required.
70. Denied as a legal conclusion to which no reply is
required.
71. Denied as a legal conclusion to which no reply is
required. To the extent a reply is deemed necessary, Franklin
Feed avers that it was damaged as alleged in the complaint in
this action.
72. Denied as a legal conclusion to which no reply is
required.
-5-
73.
required.
74.
Denied as a legal conclusion to which no reply is
Admitted in part, otherwise denied. Franklin Feed
admits only that it entered into settlement agreements with PMA
and the Martins. Defendants' averment that Franklin Feed
"consented" thereto is denied as a legal conclusion to which no
reply is required.
75. Admitted.
WHEREFORE, plaintiff respectfully requests that this
Honorable Court enter an award of damages against defendants in
an amount exceeding the limit for compulsory arbitration in this
Court, plus interest, costs and such other and further relief as
the Court determines to be fair and just.
Dated:
August 13, 2002
Respectfully submitted,
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
I.D. # 23172
Donald M. Lewis III
I.D. # 58510
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for plaintiff
-6-
VERIFIC__ATION
The undersigned, Samuel E. Miller, hereby verifies and
states that:
1. He is General Manager of Franklin Feed & Supply
Company, plaintiff herein;
He is authorized to make this verification on its
behalf;
3.
The facts set forth in the foregoing reply to new
matter are true and correct to the best of his knowledge,
information, and belief; and
4. He is aware that false statements herein are made
subject to the penalties of 18 Pa.C.S. Sec. 4904, relating to
unsworn falsification to authorities.
Dated:
CERTIFICATE OF SERVICE
I, Charles W. Rubendall II, Esquire, one of the attorneys
for plaintiff, hereby certify that I have served the foregoing
paper upon counsel of record this date by depositing a true and
correct copy of the same in the United States mail, first-class
postage prepaid, addressed as follows:
Jeffrey R. Boswell, Esquire
BOSWELL TINTNER PICCOLA & WICKERSHAM
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
Dated: August 13, 2002
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY Of CUMBERLAND COUNTY
Please list the following case:
(Check one) ( × ) for JURY trial at the next term of civil court.
( ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
FRANKLIN FEED & SUPPLY COMPANY,
(check one)
AssumPsit
Trespass
Trespass (Motor Vehicle)
(Plaintiff)
VS.
DAVID C. WERTIME, ESQUIRE and
WERTIME & GUYER,
VS.
(Defendant)
( )
(other)
The trial list will be called on
and
April 1~.2003
Trials commence on April 28, 2003
Pretrials will be held on __April 9, 2003
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall provide
forthwith a copy of the praecipe to all counsel,
pursuant to local Rule 214-1.)
No. 02-2333 Civil .......................
Indicate the attorney who will try case for the party who files this praecipe: .....................
Charles W. Rubendall_II fQ.r__p~_al_~tD[ff- ..........................................
Indicate trial counsel for other parties if known: _ Jeffre¥_._R._ ~qswe.!!_ for .defendants_ .
This case is ready for trial.
Date: ._Januar]t__~O, .__2_00_3 ......
Print Name: .... _Cha~_les_._~,-.. Rub. enRall_II-- .....
Attorney for: ?la.i~t if f ...................
FRANKLIN FEED & SUPPLY COMPANY,
Plaintiff
V.
DAVID C. WERTIME, ESQUIRE, and
WERTIME & GUYER,
Defendants
: IN THE CC,URT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
CIVIL ACTION - I.~W
JU~Y TRIAL DEMANDED
:
:
No. 02-2333 Civil
PLAINTIFF'S MOTION TO COMPEL DISCOVERY
AND FOR SANCTIONS, SEEKING EXPEDITED RELIEF
NOW COMES plaintiff Franklin Feed & Supply Company
(hereinafter "plaintiff"), by its attorneys, Keefer Wood Allen &
Rahal, LLP, to move this Honorable Court for expedited relief and
to compel defendant David C. Wertime, Esquire (hereinafter
"Attorney Wertime") and defendant Wertime & Guyer to respond
completely, fully and immediately, and without objections, to
discovery requests propounded by plaintiff and/or to grant the
other forms of relief requested below, averring as follows:
1. The subject litigation concerns claims of professional
negligence and breach of contract related to legal services that
were provided to plaintiff by Attorney Wertime and defendant
Wertime & Guyer, the law firm in which Attorney Wertime is a
partner (hereinafter referred to collectively as ~defendants").
2. The history of the underlying civil proceedings that
gave rise to the instant litigation is exceedingly complicated
and is described in detail in the complaint. Essentially,
plaintiff avers that defendants' actions and failures to act on
its behalf during the course of a relatively modest collection
action involving the non-payment of certain feed bills to
plaintiff by a customer (which went forward in Franklin County
and was concluded almost a decade ago) led not only to an
arbitration award in favor of the customer and with no recovery
by plaintiff in the collection action, but also to dire
consequences for plaintiff in a subsequent products liability
action filed in Cumberland County by the customer against
plaintiff (and another entity) in regard to the alleged
defectiveness of the feed in question and also to a related
coverage dispute with plaintiff's commercial general liability
insurance carrier that also resulted in litigation (i.e., a
declaratory judgment action that also went forward in Cumberland
County).~
3. Plaintiff filed the complaint in the instant litigation
on May 13, 2002, averring that defendants, during the course of
the events described above, had breached the duty of care owed to
plaintiff by failing to represent it with the reasonable care,
skill and diligence possessed and exercised, by other attorneys in
the community in similar circumstances, and. that defendants had
l/ Both the products liability action and the declaratory judgment
actions have been settled and have been discontinued with prejudice.
- 2 -
breached the agreement to provide legal services to plaintiff in
a professional manner.
4. Defendants filed their answer with new matter to the
complaint on July 18, 2002, and plaintiff then filed its response
to defendants' new matter on August 15, 20(]2.
5. To date, the instant litigation has not required the
involvement of the Court in regard to any other procedural or
discovery issue.
6. Just prior to the conclusion of the pleadings stage,
plaintiff's counsel directed a letter, dated August 13, 2002, to
defendants' attorney, advising that he believed that "...we
should do some discovery before this matter is referred to
mediation" and also requesting available dates for the deposition
of Attorney Wertime. A true and correct cc, py of said letter is
attached hereto as Exhibit
7. In the weeks that followed, plaintiff received no
response from defendants' attorney to the aforementioned letter
or to subsequent correspondence sent to him on August 29, 2002,
September 5, 2002, and September 9, 2002. True and correct
copies of said correspondence are attached ihereto collectively as
Exhibit
- 3 -
8. Attorney Wertime's deposition was eventually scheduled
for September 25, 2002, but was postponed at his request; the
deposition was rescheduled for October 2, .2002.
9. The deposition of Attorney Wertime took place on October
2, 2002, as scheduled; the deposition was relatively brief and
focused on only a limited number of issues, since Attorney
Wertime had been deposed previously on related topics during the
course of the declaratory judgment action referenced above.
10. Subsequent to Attorney Wertime's deposition, plaintiff
served a set of interrogatories and a request for production of
documents upon defendants on October 28, 2002. True and correct
copies of plaintiff's discovery requests are attached hereto as
Exhibit "C."
11. The discovery requests in question are simple and
straightforward, consisting of three (3) interrogatories (seeking
information on expert witnesses, fact witnesses and exhibits) and
five (5) document requests (again seeking documents related to
fact witnesses, expert witnesses and exhibits, as well as some
limited correspondence believed to be in defendants' possession).
12. On December 2, 2002, having received no response to
plaintiff's discovery requests or any communication from
defendants' attorney related thereto, plaintiff's counsel
directed a letter to defendants' attorney seeking responses to
- 4 -
plaintiff's outstanding discovery requests and advising that
"[w]e very much wish to list this case for trial." A true and
correct copy of said letter is attached hereto as Exhibit
13. Again, after receiving no response to the
aforementioned correspondence, plaintiff's counsel sent another
letter, dated December 13, 2002, to defendants' attorney,
inquiring about the status of plaintiff's discovery responses.
true and correct copy of said letter is attached hereto as
Exhibit ~E."
14. In or about early January 2003, defendants' attorney
contacted plaintiff's counsel by telephone to inform him that
defendants' responses to plaintiff's discovery requests would be
served by January 8 or 9, 2003. Defense counsel also indicated
that he wished to depose Samuel E. Miller, plaintiff's general
manager.
15. With a letter, dated January 6, 2002, plaintiff's
counsel provided defendants' attorney with available dates for
Mr. Miller's deposition, also stating that ~[w]e are very eager
to conclude discovery and list the matter for trial." A true and
correct copy of said letter is attached hereto as Exhibit "F."
16. Plaintiff's counsel received no response to the
aforementioned letter and then directed additional correspondence
to defendants' attorney on January 13, 2003, again inquiring
A
- 5 -
about the status of defendants' discovery responses, which had
not been served the previous week as promised, and also asking
that a date be selected for Mr. Miller's deposition. He further
indicated that he wished to list the case for a jury trial during
the trial term commencing on March 10, 20013. A true and correct
copy of said letter is attached hereto as ]Exhibit ~G."
17. On January 20, 2003, having heard nothing at all from
defendants' attorney, plaintiffs' counsel forwarded to the
Prothonotary's office via Federal Express a praecipe to list the
case for the March trial term, with the deadline for such listing
being January 21, 2003.
18. Unfortunately, Federal Express did not deliver the
listing praecipe to the prothonotary on January 21, 2003, because
the Federal Express delivery person mistakenly believed that the
courthouse offices in Carlisle, like some of the courthouse
offices in Harrisburg, were closed due to the inauguration
ceremonies for Governor Edward G. Rendell that were being held on
this date.
19. On January 22, 2003, before he was aware that the
listing praecipe had not been filed as intended, plaintiff's
counsel sent a letter to defendants' attorney, informing him that
the recent trial listing "...should not be viewed as a waiver of
our right to receive your client's discovery responses," and
- 6 -
further indicating that "...if we do not receive what we are
seeking from you in this regard on or before January 31, we will
present a motion to compel seeking expedited relief." He further
stated that plaintiff continued to be willing to ~...accommodate
[defendants'] wish to depose Sam Miller before trial, if you act
quickly to select a date," noting that proposed dates had already
been provided. A true and correct copy of said letter is
attached hereto as Exhibit
20. Again, plaintiff's attorney received no response to the
aforementioned letter from defendants' counsel.
21. On January 30, 2003, plaintiff's counsel forwarded to
the prothonotary's office another praecipe to list the case for a
jury trial for the next available trial term (i.e., April 2003).
A copy of this letter was sent to defendants' attorney, with a
blind postscript stating that plaintiff's counsel intended to
proceed as described in his letter of January 22, 2003. A true
and correct copy of said letter is attached[ hereto as Exhibit
22. The only response that plaintiff's counsel has received
to the letters he has directed to defendants' attorney over the
past several weeks is a recent telephone call in which
representations have again been made that defendants' responses
to plaintiff's discovery requests, which have been outstanding
- 7 -
for over two (2) months, will be served sometime in the near (but
nebulous) future. No date has been chosen by defendants' counsel
for the deposition of Mr. Miller
23. The Court's intervention is necessary because informal
efforts to resolve discovery-related issues with defendants'
counsel, as referenced above, have proved 'unsuccessful and have,
along with defense counsel's general unresponsiveness since the
inception of this case, thwarted plaintiff's desire to complete
discovery and to prepare for the trial now scheduled for the
April 2003 trial term.
24. There is simply no justification for defendants'
failure to respond to plaintiff's discovery requests,
particularly given the very basic nature of said requests; nor is
there any justification for defendants' failure to pursue its own
discovery initiatives, like the deposition of Mr. Miller.
25. The information sought by plaintiff's discovery
requests is and will continue to be necessary for it to prosecute
its claims.
26. The time between now and the April 2003 trial date is
very short, however, and plaintiff, therefore, is seeking
expedited relief from the Court.
27. Defendants' failure to provide responses to plaintiff's
interrogatories and its request for production of documents is in
- 8 -
violation of Pa. R. Civ. P. 4006 and Pa. R. Civ. P. 4009.12 and
is sanctionable under Pa. R. Civ. P. 4019, as both defendants'
attorney and his client, Attorney Wertime, are well aware.
28. Moreover, defendants have not served objections to
plaintiff's discovery requests within the 'time period prescribed
by the Pennsylvania Rules of Civil Procedure and, therefore, have
waived their right to state objections.
29. Defendants have also not sought a protective order in
regard to plaintiff's discovery requests.
30. Pursuant to Pa. R. Civ. P. 4019(2), a failure to act in
regard to responding to discovery requests ~...may not be excused
on the ground that the discovery sought is objectionable unless
the party failing to act has filed an appropriate objection or
has applied for a protective order."
31. Under Pa. R. Civ. P. 4019(a) (1) (i) (vii) and (viii),
this Court may enter an appropriate order d[irecting defendants to
respond to plaintiff's interrogatories and its request for
production of documents and to produce the documents requested.
32. Pa. R. Civ. P. 4019(c) (1) provides that the Court may
enter an order to the effect that the matters addressed in
discovery requests to which a party has failed to respond
~...shall be taken to be established for the purposes of the
- 9 -
action in accordance with the claim of the party obtaining the
order."
33. Pa. R. Civ. P. 4019(c) (2) provides that the Court may
enter an order ~...refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
such party from introducing in evidence designated documents,
things or testimony...-
34. Pa. R. Civ. P. 4019(c) (3) provides that the Court may
enter judgment by default as an appropriate sanction against a
party who has failed to comply with discovery rules and orders of
the court.
35. Pa. R. Civ. P. 4019(c) (5) provides that the Court may
make any other order that is ~just." Here, if plaintiff's motion
is granted, the Court should require defendants, whose conduct
necessitated the motion, or the attorney advising such conduct or
both of them to pay to plaintiff the reasonable expenses,
including attorney's fees, incurred by it in obtaining the order
of compliance and the order for sanctions.
36. In light of defendants' repeated and continuing failure
to comply with the Pennsylvania Rules of Civil Procedure,
plaintiff requests that the Court enter judgment by default on
liability in favor of plaintiff and against defendants, to permit
plaintiff to demonstrate its damages at time of trial and to
- 10 -
prohibit defendants from presenting at trial any testimony or
evidence that would have otherwise been revealed to plaintiff if
defendants had complied with the Pennsylvania Rules of Civil
Procedure and responded to the discovery requests in question.
37. In the alternative, plaintiff believes that defendants
should be required to respond fully, completely and immediately,
and without objections, to plaintiff's interrogatories and
request for production of documents pursuant to Pa. R. Civ. P.
4006 and Pa. R. Civ. P. 4009.12.
38. Plaintiff also requests that this Court require
defendants to pay to plaintiff its costs and reasonable
attorney's fees associated with preparing and filing this motion
to compel discovery and for sanctions.
39. Plaintiff requests expedited relief from the Court in
regard to this motion to compel discovery and for sanctions,
since this case has been listed for trial in the April 2003 trial
term.
40. Counsel for plaintiff has sought the concurrence of
defendants' attorney in this motion; counsel for defendants has
declined to concur.
WHEREFORE, plaintiff seeks expedited relief and specifically
requests that this Court enter judgment by default on liability
in favor of plaintiff and against defendants, to permit plaintiff
- 11 -
to demonstrate its damages at time of trial and to prohibit
defendants from presenting at trial any testimony or evidence
that would have otherwise been revealed to plaintiff if
defendants had complied with the Pennsylvania Rules of Civil
Procedure and responded to the discovery requests in question,
or, in the alternative, that the Court enter an order requiring
defendants to respond fully, completely and immediately, and
without objections, to plaintiff's interrogatories and its
request for production of documents. Plaintiff also requests
that defendants be required to pay to plaintiff its costs and
reasonable attorney's fees associated with preparing and filing
this motion to compel and for sanctions.
February 3, 2003
Dated:
Respectfully submitted,
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
I.D. # 23172
Donald M. Lewis III
I.D. # 58510
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for plaintiff
- 12 -
August 13, 2002
Voice: 255-8010
Fax: 255-8003
crubendall~keeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & SupPly Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
As discussed with you previously, I believe that we should
do some discovery before this matter is referred to mediation,
should your clients continue to be interested in that approach.
Thus, I suggest that you provide me with dates that are available
on your schedule and on Dave Wertime's schedule for his oral
deposition, either here or in your office. Thank you for your
anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
CWRII/sg
By
Charles W. Rubendall II
August 29, 2002
Voice: 255-8010
Fax: 255-8003
crubendall@keeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
I have not heard from you in response to my letter of
August 13. I propose that David Wertime be deposed at your
office or at ours on one of the following dates:
Wednesday, September 18
Thursday, September 19
Wednesday, September 25
Thursday, September 26
Please let me hear from you promptly. I wish to avoid
issuing a deposition notice, only to find that the date selected
by me is unsatisfactory for you or Dave.. Thank you for your
anticipated cooperation.
Very truly yours,
KEEFER WOOD .ALLEN & RAHAL, LLP
By
Charles W. Rubendall II
CWRII/sg
COVER SHEET
From:
CHARLES W. RUBENDALL I!
210 Walnut Street. P. O. Box 11963
Harrisburg. PA 17108-1963
Direct-Dial No.: 717-255-8010
Fax: 717-255-8003
E-mail address: crubendall@keeferwood.com
Date:
September 5, 2002
To: Jeff Boswell 236-9316
No. Sheets Being Sent: 1 (including cover sheet)
This transmission is being made on an OKIFAX 2600. If you do not receive all of
the pages being sent, please call Sharon at 717-255-8047.
..... CONFIDENTIALITY NOTE .....
The documents accompanying this telecopy transmission contain confidential and/or legally privileged information from the law firm
of Keefer Wood AIlen & Rahal, LLP. The information is intended only for the use of the individual or entity named on this
transmission sheet. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the
taking of any action in reliance on the contents of this telecopied information is strictly prohibited, and that the documents should be
returned to this firm immediately. In this regard, if you have received this telecopy transmission in error, please notify us by
telephone immediately so that we can arrange for the return of the telecopied documents to us at no cost to you. Thank you.
KWA&R
Message: Re:
Franklin Feed v. Wertime
Jeff, which of the following dates will work for a deposition of Dave Wertime:
Wednesday, September 18
Thursday, September 19
Wednesday, September 25
Thursday, September 26
I am under pressure to move ahead and your non-response to my earlier communications on this
topic are causing client relations problems for me. Thanks, and best regards.
Chip
September 9, 2002
Voice: 255-8010
Fax: 255-8003
crubendall@keeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
Your lack of response to my earlier communications has
forced me to issue a notice for Dave Wertime's deposition on
September 25, to be taken here in our offices and commencing at
10:00 a.m. Please alert your client. Thank you for your
anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
CWRII/sg
Enclosure
By
Charles W. Rubendall II
FRANKLIN FEED & SUPPLY COMPANY, :
:
Plaintiff :
:
V. :
:
DAVID C. WERTIME, Esquire, and :
WERTIME & GUYER, :
:
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
No. 02-2333 Civil
PLAINTIFF'S INTERROGATORIES
DIRECTED TO DEFENDANTS (SET I)
TO: Defendants
-and-
Jeffrey R. Boswell, their counsel
PLEASE TAKE NOTICE that you are hereby required, pursuant to
Pa. R. Civ. P. 4005 and 4006, as amended, to serve upon the
undersigned your answers and objections, if any, in writing and
under oath to the following interrogatories within thirty (30)
days after service upon your counsel. The answers and objections
shall be inserted in the space provided following each
interrogatory. If there is insufficient space to respond to an
interrogatory, the remainder of the response shall follow on a
supplemental sheet.
These interrogatories shall be deemed continuing in nature,
in accordance with the provisions of Pa. R. Civ. P. 4007.4, as
amended. If between the time of filing yo'ur original answers to
these interrogatories and the time you or anyone acting on your
behalf learns the identity or location of .additional persons
having knowledge of discoverable facts or the identity of persons
expected to be called as witnesses at trial and not already
disclosed in your answers, or if you or an expert witness obtain
information upon the basis of which you or he/she knows that an
answer, though correct when made, is no longer true, then you
shall promptly supplement your original answers, under oath, to
include information thereafter acquired and promptly furnish the
same as supplemental answers to the undersigned.
DEFINITIONS:
A. The term "person," as used herein, means any natural
person, partnership, corporation, or other business entity and
all present and former officers, directors, agents, employees,
attorneys, and others acting or purporting to act on behalf of
such natural person, partnership, corporation, or other business
entity.
B. The term "document," as used herein, means the
original and all copies of any written, printed, typed, or other
graphic matter of any kind or nature and any other tangible thing
in your custody or control, including but not limited to:
!. All contracts, agreements, letter agreements,
representations, warranties, certificates, and opinions;
2. All letters or other forms of correspondence or
communication, including envelopes and notes, telegrams,
cables, telex messages, telexes and messages, including
reports, notes, notations, and memoranda of or relating to
telephone conversations or conferences;
3. All memoranda, reports, test results, financial
.statements or reports, notes, scripts, transcripts,
tabulations, studies, analyses, evaluations, projections,
workpapers, corporate records or copies thereof, expressions
or statements of policy, lists, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical statements
or records, compilations and opinions or reports of
consultants;
All desk calendars, appointment books, and
o
diaries;
5.
Ail minutes, records, or transcripts of meetings
and conferences and lists of persons attending meetings or
conferences;
6. All reports and summaries of interviews or
negotiations;
7. All books, articles, press releases, magazines,
newspapers, booklets, brochures, pa~)hlets, circulars,
bulletins, notices, instructions, and manuals;
8. All motion pictures and photographs (whether
developed or undeveloped), tape recordings, microfilms,
phonographs, tapes or other records, punch cards, magnetic
tapes, discs, data cells, drums, print-outs, and other data
compilations from which information can be obtained; and
9. Drafts of any documents, revisions of any draft
documents, and original or preliminary notes.
C. The term "communication," as used herein, means all
statements, admissions, denials, inquiries, discussion,
conversations, negotiations, agreements, contracts,
understandings, meetings, telephone conversations, letters,
-4-
correspondence, notes, telegrams, telexes, advertisements, or any
other form of written or verbal intercourse.
D. The term "identify," when used with respect to a
document, means to state the date, author, addressee, type of
document (e.q. "letter"); to identify its last known custodian
and location; and to state the exhibit nu~er of the document if
it has been marked during the course of a court proceeding.
E. The term "identify," when used with respect to an
individual, means to give the person's full name, all known
aliases, present or last known business and home addresses and
telephone numbers, and present position or business affiliation.
F. The term "identify," when used with respect to any
other "person," means to give the person's: official, legal, and
formal name or the name under which the person acts or conducts
business, the address and telephone number of the person's place
of business, professional, commerce, or home, and the identity of
the person's principal or chief executive officer or person who
occupies the position most closely analogous to a chief
executive.
G. The term "relate(s) to," as used. herein, means
constitute(s), refer(s) to, reflect(s), concern(s), pertain(s)
to, or in any way logically or factually connect(s) with the
matter described in the interrogatory.
-5-
H. The terms "subject incident," as used herein, refers to
the occurrence(s) that forms the basis of the cause of action or
claim for relief described in plaintiff's complaint.
-6-
INTERROGATORIES:
1. Identify each person whom defendants will call as an
expert Qitness at the trial of this matter. For each person so
identified, state the following:
(a)
the subject matter on which the expert is expected to
testify;
(b)
the facts and opinions to which the expert is expected
to testify;
(c) a summary of the grounds for each opinion;
(d)
whether the expert has prepared a written report,
memorandum or other transcript; and
(e)
if so, give the name and address of the present
custodian of same, and state whether you will
produce said report, etc. without the necessity of a
motion.
[You may file as your answer to this
interrogatory the report(s) of the expert(s)
identified herein, or have the interrogatory
answered and signed by said expert(s).]
ANSWER:
-7-
2. List the names, addresses and telephone number of each
fact witness, i.e., each non-expert witness, whom defendants will
call at time of trial, and briefly summarize their anticipated
testimony.
ANSWER:
-8-
3. Identify all exhibits that defendants will offer into
evidence at time of trial.
ANSWER:
Dated: October 28, 2002
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
Donald M. Lewis III
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for plaintiff
CERTIFICATE OF SERVICE
I, Charles W. Rubendall II, Esquire, one of the attorneys
for plaintiff, hereby certify that I have served the foregoing
paper upon counsel of record this date by depositing a true and
correct copy of the same in the United States mail, first-class
postage prepaid, addressed as follows:
Jeffrey R. Boswell, Esquire
Boswell Snyder Tintner & Piccola
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
Dated: October 28, 2002
FRANKLIN FEED & SUPPLY COMPANY, :
:
Plaintiff :
:
V. :
:
DAVID C. WERTIME, Esquire, and :
WERTIME & GUYER, :
:
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
No. 02-2333 Civil
PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
DIRECTED TO DEFENDANTS (F]~RST SET)
TO:
Defendants
-and-
Jeffrey R. Boswell, their counsel
THIS IS A REQUEST FOR PRODUCTION OF DOCUMENTS ~ND TANGIBLE
ITEMS. You must respond in a timely and appropriate manner,
pursuant to the Pennsylvania Rules of Civil Procedure, as
follows:
RULE 4009.12
ANSWER TO REQUEST UPON A PARTY FOR
PRODUCTION OF DOCUMENTS AND THINGS
(a) The party upon whom the request is served
shall within thirty days after the service of the
request
(1) serve an answer includ[ing objections to
each numbered paragraph in the request, and
(2) produce or make available to the party
submitting the request those documents and things
described in the request to which there is no
objection.
(i) Where the documents may be
identified only after review of a larger
group of documents, and the burden of
identifying the documents would be
substantially the same for the party serving
the request as for the party served, the
party served may afford the party serving the
request reasonable opportunity to identify
the documents, to examine or inspect them and
to obtain copies.
(b) The answer shall be in the form of a
paraqraph-by-paraqraph response which shall
(1) identify all documents: or things
produced or made available;
(2) identify all documents or thinqs not
produced or made available because of the
objection that they are not within the scope of
permissible discovery under Rule 4003.2 through
Rule 4003.6 inclusive and Rule 401!(c) . Documents
or things not produced shall be identified with
reasonable particularity together with the basis
for non-production;
(3) specify a larger group of documents or
things from which the documents or things to be
produced or made available may be identified as
provided by subdivision (a) (2) (i);
(4) object to the request on the grounds set
forth in Rule 4022(a), (b), and (e) or on the
ground that the request does not. meet the
requirements of Rule 4009.11;
(5) state that after reasonable
investiqation, it has been determined that there
are no documents responsive to the request.
(c) The answer shall be siqned and verified by
the party making it and siqned also by the attorney
makinq an objection if one is set forth.
(d) If a request is reasonably susceptible to one
construction under which documents sought to be
produced are within the scope of the request and
another construction under which the documents are
-2-
outside the scope of the request, the answering party
shall either produce the documents or identify with
reasonable particularity the documents not produced
together with the basis for non-production. (Emphasis
supplied.)
This request for production shall be deemed contmnuing in
nature, in accordance with the provisions of Pa. R. Civ. P.
4007.4, as amended.
-3-
DEFINITIONS:
A. The term "person," as used herein, means any natural
person, partnership, corporation, or other business entity and
all present and former officers, directors, agents, employees,
attorneys, and others acting or purporting to act on behalf of
such natural person, partnership, corporation, or other business
entity.
B. The term "document," as used herein, means the
original and all copies of any written, printed, typed, or other
graphic matter of any kind or nature and any other tangible thing
in your custody or control, including but not limited to:
1. Ail contracts, agreements, letter agreements,
representations, warranties, certificates, and opinions;
2. Ail letters or other forms of correspondence or
communication, including envelopes and notes, telegrams,
cables, telex messages, telexes and messages, including
reports, notes, notations, and memoranda of or relating to
telephone conversations or conferences;
3. Ail memoranda, reports, test results, financial
statements or reports, notes, scripts, transcripts,
tabulations, studies, analyses, evaluations, projections,
workpapers, corporate records or copies thereof, expressions
or statements of policy, lists, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical statements
or records, compilations and opinions or reports of
consultants;
diaries;
Ail desk calendars, appointment books, and
5. Ail minutes, records, or transcripts of meetings
and conferences and lists of persons attending meetings or
conferences;
6. Ail reports and summaries of interviews or
negotiations;
7. Ail books, articles, press releases, magazines,
newspapers, booklets, brochures, pamphlets, circulars,
bulletins, notices, instructions, and manuals;
8. All motion pictures and photographs (whether
developed or undeveloped), tape recordings, microfilms,
phonographs, tapes or other records, punch cards, magnetic
tapes, discs, data cells, drums, print-outs, and other data
compilations from which information can be obtained; and
9. Drafts of any documents, revisions of any draft
documents, and original or preliminary notes.
C. The term "communication," as used herein, means all
statements, admissions, denials, inquiries:, discussion,
conversations, negotiations, agreements, contracts,
understandings, meetings, telephone conversations, letters,
correspondence, notes, telegrams, telexes, advertisements, or any
other form of written or verbal intercourse.
D. The term "identify," when used with respect to a
document, means to state the date, author, addressee, type of
document (e.q. "letter"); to identify its last known custodian
and location; and to state the exhibit number of the document if
it has been marked during the course of a court proceeding.
E. The term "identify," when used with respect to an
individual, means to give the person's full name, all known
aliases, present or last known business and home addresses and
telephone numbers, and present position or business affiliation.
· F. The term "identify,.. when used with respect to any
other "person," means to give the person's official, legal, and
formal name or the name under which the person acts or conducts
business, the address and telephone number of the person's place
of business, professional, commerce, or home, and the identity of
the person's principal or chief executive ,officer or person who
occupies the position most closely analogo'us to a chief
executive.
G. The term "relate(s) to," as used herein, means
constitute(s), refer(s) to, reflect(s), concern(s), pertain(s)
to, or in any way logically or factually connect(s) with the
matter described in the request.
-5-
H. The terms "subject incident," as used herein, refers to
the occurrence(s) that forms the basis of the cause of action or
claim for relief described in plaintiff's complaint.
-6-
The specific requests follow:
1. Ail of defendants' correspondence with or relating to
Franklin Feed & Supply Company up to the time that PMA first
became involved in the underlying dispute with the ~artins.
RESPONSE:
2. A copy of the curriculum vitae of each expert whom
defendants expect to call as an expert witness at the trial of
this case.
RESPONSE:
3. Copies of all opinions, reports, summaries, notes or
other writings relating to the subject matter of this litigation
prepared by each and every expert whom defendants expect to call
as a witness at the time of trial.
RESPONSE:
-9-
4. Copies of all exhibits that defendants will offer into
evidence at time of trial.
RESPONSE:
-10-
5. If you or your attorneys are withholding from
production, or are failing to identify, any documents falling
within the fair scope of plaintiff's request for production of
documents on the basis of the attorney-client privilege, the work
product immunity, or some other claim of privilege, provide a
list in which said documents are identified with sufficient
specificity to permit a full determination by the Court as to
whether the claimed privilege is valid, and include the
following:
(a) The date of the document;
(b) The type of document (e.q., letter, memorandum, chart,
etc.)
(c) The name, address, employer, job title and occupation
of all authors of the document;
(d) The name, address, employer, job title and occupation
of the person in the possession, custody or control of the
document; and
(e) The type of privilege asserted and your basis for
asserting that privilege.
RESPONSE:
-11-
Respectfully submitted,
Dated:
October 28, 2002
KEEFER WOOD ALLEN & RA/qAL, LLP
By
Charles W. Rubendall II
Donald M. Lewis III
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for plaintiff
-12-
CERTIFICATE OF SERVICE
I, Charles W. Rubendall II, Esquire, one of the attorneys
for plaintiff, hereby certify that I have served the foregoing
paper upon counsel of record this date by depositing a true and
correct copy of the same in the United States mail, first-class
postage prepaid, addressed as follows:
Jeffrey R. Boswell, Esquire
Boswell Snyder Tintner & Piccola
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
KEEFER WOOD ALLEN & RAHAL, LLP
By
Charles W. Rubendall II
Dated: October 28, 2002
December' 2, 2002
Voice: 255-8010
Fax: 255-8003
crubendall~keeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
This letter will confirm our telephone conversation last
week. We very much wish to list this case for trial. Thus,
please do what you can to respond to the very few discovery
inquiries that we served upon you some thirty-plus days ago.
Thank you for your anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
By
Charles W. Rubendall II
CWRII/sg
December 13, 2002
Voice: 255-8010
Fax: 255-8003
crubendallekeeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
Please provide me with your client's discovery responses,
which are now seriously overdue. It will ]De entirely pointless
for us to file a motion to compel just to obtain items that you
have already undertaken to provide to us. Thank you for your
anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
By
Charles W. Rubendall II
CWRII/sg
January 6, 2003
Voice: 255-8010
Fax: 255-8003
crubendall@keeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
Please be advised that Sam Miller can make himself available
in your office or in ours for an oral deposition on any of the
following dates: January 14, January 15, January 17, January 20,
January 21, January 31, February 3, February 4, February 5,
February 6.
Please select a date and issue a notice for Sam's
deposition. We are very eager to conclude discovery and list the
matter for trial. Thank you for your anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
By
Charles W. Rubendall II
CWRII/sg
January 13, 2003
Voice: 255-8010
Fax: 255-8003
crubendallokeeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
I continue to await, with less patience than before, your
clients' responses to our discovery devices. Furthermore, I have
asked you to select a date for Sam Miller's deposition, and I
would like to hear from you on that topic as well.
Can we agree that this matter should be listed for the trial
term commencing March 107 Please advise me more or less
immediately, as the final day for listing is next Monday,
January 20. Your questions will be welcome. Thank you for your
anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
CWRII/sg
By
Charles W. Rubendall II
January 22, 2003
Voice: 255-8010
Fax: 255-8003
crubendall~keeferwood.com
Jeffrey R. Boswell, Esquire
Boswell Tintner Piccola & Wickersham
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
Re:
Franklin Feed & Supply Company v. David Wertime, et al.
C.C.P. Cumberland
No. 02-2333 Civil
Dear Jeff:
Our recent listing of this case for trial during the civil
jury trial term commencing March 10 should not be viewed as a
waiver of our right to receive your clients' discovery responses.
Indeed, if we do not receive what we are seeking from you in this
regard on or before January 31, we will present a motion to
compel seeking expedited relief.
By the same token, we will accommodate your wish to depose
Sam Miller before trial, if you act quickly to select a date.
Kindly refer to my earlier letter on this topic. If none of the
dates mentioned therein are available on your schedule, please
suggest dates on or after February 17, but not later than
February 25.
Your questions will be welcome.
anticipated cooperation.
Thank you for your
Very truly yours,
KEEFER WOOD ALLEN & RA3{AL, LLP
CWRII/sg
By
Charles W. Rubendall II
January 30, 2003
Voice: 255-8010
Fax: 255-8003
crubendall~keeferwood.com
Curt Long, Prothonotary
Cumberland County Courthouse
High and Hanover Streets
Carlisle, PA 17013
Re:
Franklin Feed & Supply Company v.
David Wertime, et al.
No. 02-2333 Civil
Dear Mr. Long:
Enclosed for filing is our praecipe (in duplicate) to list
this case for jury trial in April 2003. We are sending a copy of
this item to counsel for defendants this date. Thank you for
your anticipated cooperation.
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
By
cwRII/sg
Enclosures
cc: Jeffrey R. Boswell, Esquire
Charles W. Rubendall II
(w/encl.)
B.P.S. Jeff, our first praecipe was delayed by Federal Express,
and we missed the March trial term. Nevertheless, I do intend to
proceed as outlined in my recent letter to you.
Chip
CERTIFICATE OF SERVICE
I, Charles W. Rubendall II, Esquire, ()ne of the attorneys
for plaintiff, hereby certify that I have served the foregoing
paper upon counsel of record this date by depositing true and
correct copies of the same in the United States mail, first-class
postage prepaid, addressed as follows:
Jeffrey R. Boswell, Esquire
Boswell Snyder Tintner & Piccola
315 North Front Street
P. O. Box 741
Harrisburg, PA 17108-0741
KEEFER WOOD ALLEN & ~~L,...LLP
Charles W. Rubendall II
Dated: February 3, 2003
FRANKLIN FEED & SUPPLY COMPANY,
Plaintiff
V.
DAVID C. WERTIME, ESQUIRE, and
WERTIME & GUYER,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
:
:
:
No. 02-2333 Civil
RULE TO SHOW CAUSE
AND NOW, this /2 g day of February 2003, upon
consideration of plaintiff,s motion to compel discovery and for
sanctions directed to defendants and plaintiff's request for
expedited relief due to the listing of this case for the April
2003 civil trial term, a rule is hereby issued to show cause, if
any there be, why the relief requested in plaintiff,s motion
/D
should not be granted.
Rule returnable
days from the date of this Order.
02-1 -o3
BY THE COURT: /
Jo
M:\HOME\JRB\LITIGAT~WERTIME RESPONSE.WPD
Draft #2
February 24, 2003
Jeffrey R. Boswell, Esquire
Supreme Court #25444
Brigid Q. Alford, Esquire
Supreme Court #38590
BOSWELL, TINTNER, PICCOLA & WICKERSHAM
315 North Front Street
Post Office Box 741
Harrisburg, PA 17101
(717) 236-9377
Attorneys for Defendants
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff,
Vo
DAVID C. WERTIME, Esquire, and
WERTIME & GUYER,
Defendants.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-2333 CIVIL
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEl.
DISCOVERY AND FOR SANCTIONS, SEEKING EXPEDITED RELIEF
NOW COMES Defendant, David C. Wertime, Esquire, and Wertime & Guyer, by their
attorneys, Boswell, Tintner, Piccola & Wickersham, to respond to the Rule to Show Cause
received by Defendants' counsel on February 18, 2003, to make this Response to Plaintiff's
Motion to Compel Discovery and for Sanctions, and to oppose Plaintiff's Request for Sanctions
for the reasons set forth, as follows:
1. Admitted. In further response, Defendants did not participate in the substantive issues
in the Cumberland County products liability action nor in the resolution of those issues, nor did
Defendants participate in Plaintiff's declaratoryj udgment action filed against its liability insurance
carrier, except as a fact witness.
2. Defendants admit that the history is complicated. However, Defendants deny that
Defendants' actions or inactions unilaterally caused the consequences of which Plaintiff
complains.
3. Defendants admit that Plaintiff filed the complaint in this instant litigation on May 13,
2002, but deny the averments represented.
4. Admitted.
5. Admitted.
6. Admitted. In further answer, Defendants, prior to and subsequent to August 13, 2002,
offered to mediate or to arbitrate the claims made by Plaintiffagainst the Defendants. Defendant
Wertime was deposed on October 2, 2002, as suggested in Plaintiffs counsel's letter. This offer
to mediate or to arbitrate these claims has not been withdrawn by Defendants. In January, 2003,
Plaintiff's counsel decided not to arbitrate or mediate these claims.
7. Denied. Plaintiff's correspondence concemed the proposed deposition of Defendant
David C. Wertime, who agreed to be available for his deposition. A written response to this
correspondence was not necessary. Defendant Wertime was also deposed on October 2, 2002.
This deposition was the second deposition, as he was deposed on December 9, 1998, in the
declaratory judgment action. In that December 9, 1998, deposition, Mr. Wertime was interrogated
by Attomey Rubendall, who represented the Plaintiff Franklin Feed & Supply Company.
8. Admitted.
9. Admitted. In further answer, Attorney Wertime's October 2, 2002, deposition was 56
pages. There were 9 exhibits reviewed at that deposition. Mr. Wertime's December 9, 1998,
deposition was 152 pages. There were 6 exhibits reviewed at that deposition. Plaintiff's counsel
had these exhibits prior to the depositions.
10. Defendants' counsel received Plaintiff's set of Interrogatories and Request for
Production of Documents on October 29, 2002.
11. Denied. Whereas, Plaintiff had 3 interrogatories and 5 document requests, Plaintiffs
definitions attached to the interrogatories and the document request are comprehensive, arguably
making relevant to this action the documents in Attorney Wertime's Franklin County arbitration
case file. Previous to Attorney Wertime's deposition, the Plaintiff waived its attorney/client
privilege. On February 14, 1996, Attorney Wertime provided Plaintiff's counsel with a copy of
his "complete file" for the Franklin County arbitration case. Defendants' counsel has informed
Plaintiff's counsel that Attorney Wertime's file, which is approximately 6 inches thick, containing
correspondence, notes, reports, records, and documents used in the arbitration case in Franklin
County, could be inspected by Plaintiff's counsel. The Defendants had not yet named their expert
witnesses nor fact witnesses, nor had they selected exhibits that will be introduced at trial. Until
January, 2003, Defendants were under the impression Plaintiff would mediate or arbitrate its
claims in this action.
12. Since December 2, 2002, Plaintiff's counsel and Defendants' counsel have discussed
the outstanding discovery requests, Plaintiff's counsel's later decision not to mediate or to
arbitrate the claims, and settlement discussions.
13. Since December 13, 2002, Plaintiff's counsel and Defendants' counsel have discussed
the outstanding discovery requests, Plaintiff's counsel's decision not to mediate or to arbitrate the
claims, and settlement discussions.
14. Admitted. In further response, Defendants' counsel also informed Plaintiff's counsel
that he had Attorney Wertime's file in his possession, from which file Attorney Wertime produced
documents to Plaintiff's counsel on February 14, 1996. Defendants had not yet named an expert
witness, nor had they selected their documents to be introduced at trial.
15. Admitted. In further answer, Attomey Wertime had always cooperated with Plaintiff,
even executing a Tolling Agreement dated as of January 1, 1997, which agreement was extended
three times until January 1, 2003. During this time period, Attorney Wertime cooperated with
Plaintiff and Plaintiff's counsel to supply information to enable Plaintiff to pursue its declaratory
judgment action against it's liability insurance carrier and to defend itself in the Martins' products
liability claim filed against Plaintiff and Purina Mills, Inc. Plaintiff's counsel has never been
deprived of any information pertinent to the claims in the May, 2002, complaint filed against
Defendants.
16. Plaintiff's counsel is aware of Defendants' request to depose Samuel E. Miller,
Plaintiff's General Manager, who was Plaintiff's contact with Attorney Wertime in the Franklin
County arbitration case. Plaintiff had not yet named an expert witness.
17. Admitted that Defendants' counsel did not contact Plaintiff's counsel between
January 13 and January 20.
18. Admitted.
19. Admitted. In further answer, Plaintiff's counsel and Defendants' counsel did discuss
discovery. PlaintiWs counsel now states that Plaintiffis very eager to conclude its discovery and
has listed the matter for trial when discovery is not complete. Plaintiff, through related cases, has
already obtained substantially all of its discovery whereas Defendants have not had that
opportunity.
20. Plaintiff's attorney suggested Mr. Miller's deposition be held between February 17 and
February 25. Defendant has requested that his deposition be held between March 18 and March
21 to allow time for Plaintiffto respond to Defendants' First Set of Interrogatories to Plaintiffand
Defendants' First Request for Production of Documents to Plaintiff.
21. Admitted. In further answer, Plaintiff's counsel listed this action for trial knowing
there were outstanding discovery requests and knowing that Defendants intended to depose
Plaintiff's key witness.
22. PlaintiWs counsel is aware that Defendants' counsel has Attorney Wertime's file from
the Franklin County arbitration case in order to comply with Plaintiff's discovery requests.
Defendants' counsel has requested that Mr. Miller be available for his deposition at 9:00 a.m. on
March 18, March 19, March 20, or March 21.
23. The pleadings in this action are closed with Plaintiff's filing its Reply to New Matter.
Plaintiff's counsel is aware of Defendants' request to mediate or to arbitrate the claims raised by
Plaintiff. Plaintiff is in possession of some of the documents requested in Plaintiff's discovery.
Attorney Wertime has been deposed twice. Defendants' counsel has made a substantial settlement
offer to Plaintiff's counsel. Plaintiff's counsel has listed this case for discovery, knowing there
is outstanding discovery, including the deposition of Plaintiff's key witness. Defendants' counsel
has told Plaintiff's counsel he would provide the discovery responses as soon as possible.
24. Defendants' counsel has made an effort to limit discovery, requesting mediation or
arbitration of these claims. Defendants' counsel has made a substantial offer to settle these claims,
even though the settlement offer may be withdrawn if this case must be prepared for trial.
25. Admitted. Defendants aver that both sides have substantial work to be done to prepare
this case for trial on April 28.
26. In further response, additional time may be necessary because of the deposition of Mr.
Miller and Plaintiff's response to Defendants' Interrogatories and Request for Production may
lead to the need for further discovery and depositions.
27. Denied. Defendants have no intention to withhold information properly requested in
PlaintiWs Interrogatories and its Request for Production, noting that Plaintiff already has
substantial information, particularly noting the two depositions of Attorney Wertime and the 15
exhibits presented for his review at those depositions.
28. Admitted.
29. Admitted.
30. Admitted. In further answer, Attorney Wertime has always been cooperative since
1997.
31. Admitted. However, Defendants willingly will produce appropriate responses to
Plaintiff's Interrogatories and its Request for Production of Documents.
32. Admitted. However, Defendants willingly will produce appropriate responses to
Plaintiff's Interroatories and its Request for Production of Documents.
33. Denied. Whereas, it is admitted that Pa. R. Civ. P. 4019 (c)(2) is quoted correctly,
Defendants were not "disobedient" to warrant these sanctions. In further response, Plaintiff's
counsel has had access to significant documents requested in its discovery from February, 1996,
and has had contact with Attomey Wertime concerning specific documents and issues prior to his
first deposition on December 9, 1998. Attorney Wertime, on specific request by Plaintiff's
counsel, provided Plaintiff's counsel with copies of documents from Attorney Wertime's
arbitration case file on February 16, 1996.
34. Denied. Defendants intend to comply with discovery rules. Defendants have not
failed to comply with Orders of the Court. Defendants have cooperated with Plaintiff's counsel
since February, 1996, providing significant information that was helpful in Plaintiff's winning its
action for declaratory judgment that resulted in its liability insurance carrier providing not only
a defense but also coverage in the Martins' products liability action against the Plaintiff.
35. Denied. Plaintiff has not been prejudiced. Plaintiff was already in possession of
significant documents requested by its recent discovery. Whereas, it is admitted that Defendants
have not named an expert witness, nor have specifically designated exhibits, Defendants contend
that both actions would be done in a reasonable time prior to trial. Defendants did not name an
expert witness prior to this time in order to save expense if this matter could be settled.
36. Denied. Plaintiff's request is patently unfair given the cooperation exhibited by the
Defendants since February, 1996, including two depositions, the informal production and follow
up, and the examination of documents provided to Plaintiff's counsel by Defendant. Plaintiff's
representations are unfair given Defendants' prior docuent production, Defendants' request to
depose Mr. Miller, and Plaintiff's expressed intent to name an expert witness promptly, given the
possible trial date of April 28, and Defendants' offer to allow Plaintiff's counsel to review
Defendants' file.
37. Defendants intend to respond without objection to Plaintiff's Interrogatories and
Request for Production of Documents.
38. Defendants deny that they should pay Plaintiff its costs and reasonable attorney's fees,
as this Motion to Compel Discovery and for Sanctions was unnecessary.
39. Defendants deny that expedited relief is necessary as it has complied with the
discovery requests to a large extent and intends to comply fully as they intend to name an expert
witness and prepare documents and reports for trial.
40. Admitted.
WHEREFORE, Defendants respectfully request Plaintiff's motion be denied.
Respectfully submitted,
By:
Je~uire
Supreme Court I.D. #25444
Brigid Q. Alford, Esquire
Supreme Court I.D. #38590
BOSWELL, TINTNER, PICCOLA & WICKERSHAM
315 North Front Street
Post Office Box 741
Harrisburg, Pennsylvania 17108-0741
Attomeys for Defendants
Date: February 24, 2003
CERTIFICATE OF SERVICE
I do hereby certify that I have served a tree and correct copy of the foregoing Defendants'
Response to Plaintiff's Motion to Compel Discovery and for Sanctions, Seeking Expedited Relief,
by placing the same in the United States Mail, first class, postage prepaid, at Harrisburg,
Pennsylvania, addressed as follows:
Charles W. Rubendall, II, Esquire
Keefer, Wood, Allen & Rahal, LLP
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
Attorneys for Plaintiff
Jeffr~ire
Date: February24, 2002
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff
VS.
DAVID C. WERTIME, Esquire,
and WERTIME & GUYER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
02-2333 CIVIL
JURY TRIAL DEMANDED
IN RE: MOTION TO COMPEL AND FOR SANCTIONS
ORDER
AND NOW, this Z g' day of February, 2003, a brief argument on the plaintiff's
motion to compel and for sanctiOns is set for Thursday, March 20, 2003, at 4:00 p.m. in
Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA.
BY THE COURT,
Charles Rubendall, II, Esquire
For the Plaintiff
Jeffrey Boswell, Esquire
For the Defendants
:rlm
¥1NVA~ASNN~ct
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff
Vo
DAVID C. WERTIME, Esquire :
and WERTIME & GUYER, :
Defendants :
#4
IN THE COURT OF COMMO~PLEAS OF
CUMBERLAND COUNTY, PE~SYLVANIA
NO. 02-2333 CIVIL TERM
JURY TRIAL DEMANDED
CONFERENCE
IN RE: PRETRIAL
At a pretrial conference :held Wedn s~i
9 2003 before the ~onorable Edward E. Guido, Jud e, p~e~en
for the Plaintiff was Charles W. Rubendall, II, Es~ire, and
present for the Defendants was Jeffrey R. Boswell, Esquire.
The parties estimate this case wil~ take two to
two and a half days to try It is a legal malpractice case· We
· I
note that Plaintiff's counsel is listed as a witntss by the
defense. This raises issues under Rule :3.7 of the Rules of
Professional Conduct regarding Plaintiff's counsel's ability to
continue as triaI counsel. The parties are directed to work
together to attempt to resolve those issues prior to trial. If
that cannot be done, then alternate arrangements for trial
counsel need to be made by Plaintiff. In that ca+e, we will
entertain a request for a continuance by' the Plaintiff.
There also appears to be issues w~th regard to
discovery. Plaintiff's position is that: they hav~ completed all
of their discovery and that Defendant was dilato~ in pursuing
its discovery. In any event, we note that the case was filed
less than one year ago. The parties are working hard to attempt
to resolve the outstanding issues, and there is reasonable
likelihood that they will be resolved. However, lif the
Defendant requests a continuance by April 22, 20U3, it will be
granted to the July term of court. Any' request for continuance
should be addressed to this judge, i
Absent any request for continuance! prior
thereto, all motions in limine, with supporting aulthority, shall
be filed by close of business on Wednesday, April ~3, 2003.
responses, with supporting authority, shall be filed by 9:00
a.m. on Monday, April 28, 2003.
Settlement negotiations are ongoinI.
to the Court that there is a "reasonable" chance o~
!
By the Court
Any
It appears
settlement.
Edward E. Guido, J.
Charles W. Rubendall, II, Esquire
Attorney for Plaintiff
Jeffrey R. Boswell, Esquire
Attorney for Defendants
Court Administrator
srs
Jeffrey R. Boswell, Esquire
Supreme Court #25444
BOSWELL, T1NTNER, PICCOLA & WICKERSHAM
315 North Front Street
Post Office Box 741
Harrisburg, PA 17101
(717) 236-9377
Attorneys for Defendants
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff,
V.
DAVID C. WERTIME, Esquire, and
WERTIME & GUYER,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-2333 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
Defendants David C. Wertime and Wertime & Guyer intend to serve a subpoena identical
to the one that is attached to this notice upon the following:
1. Pennsylvania Manufacturers' Association Insurance Company
You have twenty (20) days from the date listed below in which to file of record and serve
upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be
served.
Respectfully subrnitted,
Date:
By:
~3oswell, Esquire
Supreme C. ourt I.D. # 25444
Boswell, Tintner, Piccola & Wickersham
315 North Front Street, Post Office Box 741
Harrisburg, PA 17108-0741
Attorneys for Defendants
COMMONWEALTH ~F PENNSYLVANIA
COUNTY OF CUMBERLAND
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff,
V.
DAVID C. WERTIME, Esquire,
WERTIME & GOYER,
Defendants
and
File No.
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANTTO RULE[ 4009.22
02-2333 Civil
TO: Pennsylvania Manufactuters' Association Insurance Company (Name of Person or En~)
Within twenty (20) days after Se~ice of this subpoena, you are ordered by the court to produce the following
documents or things:
Any and all documents or o~her items relating to insurance policies
issUed by Pennsylvania Manufactuters' Association Insurance Company's to
or on behalf of Franklin Feed and Supply Company.
at 315 North Front Str~: R~h~rg. PA 17191
(Ad~ress)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
¢¢ith the certificate of compliance, to the party making this request at t~e address listed above. You have the right
,'.c seek in advance the reasonable cost of preparing the copies or producing the things sought.
if you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
:~,e party serving this subpoena may seek a court order compelling you ~.o comply with it.
THIS SUBPOENA WAS ISSUED ATTHE REQUEST OF THE FOLLOWING PERSON:
Name Jeffrey R. Boswell, Esquire
&ddress: 315 N. Front Street, P. O. Box 741
Harrisburg, PA 17108-0741
7elephone: (717) 236-9377
Supreme Court ID # 25444
&~orney For: Defendants
BY THE COURT:
Date:
Seal of the Court
Prothonotary/Clerk, Civil Division
Deputy
(Eft. 7/97)
CERTIFICATE OF SERVICE
I do hereby certify that I have served a tree and correct copy of the foregoing Defendants'
Notice of Intent to Serve Subpoena to Produce Documents and Things for Discovery Pursuant to
Rule 4009.21 by first-class United States mail upon the following parties at the addresses set forth
below:
Charles W. Rubendall, II, Esquire
Donald M. Lewis, m, Esquire
KEEFER, WOOD, ALLEN & 1LkI-IAL, LLP
210 Walnut Street
Post Office Box 11963
Harrisburg, PA 17108-1963
Date:
By:
Jeff. Boswell, Esquir-e
2003
Jeffrey R. Boswell, Esquire
Supreme Court #25444
BOSWELL, T1NTNER, PICCOLA & WICKERSHAM
315 North Front Street
Post Office Box 741
Harrisburg, PA 17101
(717) 236-9377
Attorneys for Defendants
FRANKLIN FEED & SUPPLY
COMPANY,
Plaintiff,
V.
DAVID C. WERTIME, Esquire, and
WERTIME & GUYER,
Defendants.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-2333 CIVIL
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
AND NOW, thisa~
,n/d ORDER
day of April, 2003, upon motion of Defendants David C. Wertime,
Esquire, and Wertime & Guyer for a Continuance and upon finding good cause therefor:
IT IS HEREBY ORDERED THAT this case is stricken from the April, 2003, trial list and
is continued until the July, 2003, trial calendar. '~ ~ t~_a__ .__._ __st_,~.c.% .~ ~
Ju~'~ Edwar/l E. 13uido
Franklin Feed & Supply Company
V
David C. Wertime, Esquire and Wertime & Guyer
IN THE COURT OF COMMON PLEAS OF
CUMBEP,_LAND COUNTY, PENNSYLVANIA
NO. 02-2333 CIVIL TERM
ORDER OF COURT
AND NOW, June 10, 2003, counsel having failed to call the above case for thai,
the case is stricken from the July 7, 2003 trial term. Counsel is directed to relist the case when
ready.
Charles W. Rubendall, II, Esquire
For the Plaintiff
Jeffrey R. Boswell, Esquire
For the Defendant
Court Administrator
Id
By the Court,
FRANKLIN FEED & SUPPLY COMPANY, :
Plaintiff :
DAVID C. WERTIME, Esquire, and :
WERTIME & GUYER, :
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
No. 02-2333 Civil
PRAECIPE TO DISCONTINUE, WITH PREJUDICE
TO: Curt Long, Prothonotary
Please mark the docket for this action to note that
been settled and discontinued, with prejudice.
it has
Dated: July I , 2003
Respectfully submitted,
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
I.D. # 23172
Donald M. Lewis III
I.D. # 58510
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for plaintiff