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HomeMy WebLinkAbout09-30-04 ~ .. IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 ORDER AND NOW, this _ day of . 2004, for good cause appearing, it is hereby ORDERED and DECREED that Respondent is precluded at trial from: (1) testifying as to any matters contained within the Interrogatory questions; (2) producing any witnesses at the trial of this matter; and (3) producing any documentary evidence at the trial of this matter. BY THE COURT: Hoffer, J l / pOST& \1 SCHEIL", ATTOB'\iF1':; AT LA\\' ~~----~ "" Paula J. McDermott Direct Dial: 717-612-6012 Fax Number: 717-731-1985 pmcdermott@postschell.com File No.: 1752/120940 September 30, 2004 VIA FEDERAL EXPRESS Orphans' Court Division clo Register of Wills Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013-3387 PENNSYLVANIA PHILADELPHIA RE: In Re: Estate of David M. Gross Cumberland County No. 2103-1065 PITTSBURGH Dear Sir or Madam: HARRISBURG Enclosed for filing please find the original and two copies of the foregoing documents: LANCASTER AllENTOWN 1) Brief of Brian John Gross in Support of Petition for Revocation of Letters and Removal of Administratrix; and NEW JERSEY 2) Petitioner, Brian John Gross' Motion in Limine for Sanctions for Failure to Respond to Discovery Requests. PRINCETON Would you please time-stamp the extra copy of each document and return them to our office. By copy of this correspondence, the same has been served on Respondent's counsel and The Honorable George E. Hoffer. If you have any questions or comments, please feel free to contact me. Very truly yours, f~>>-.~~ Paula J. McDermott PJM:djs Enclosures Cc: James Nealon, Esquire (w/enclosures) (Regular Mail) The Honorable George E. Hoffer (w/enclosures) (Federal Express) 240 GRANDVIEW AVENUE CAMP Hill, PA 17011 717.731.1970 WWW.POSTSCHEll.COM A PENNSYLVANIA PROFESSIONAL CORPORATION # l poSi'1 SCHEILpc ATTORNEYS AT LA\V copy Paula J. McDennott Direct Dial: 717-612-6012 Fax Number: 717-731-1985 pmcdermotttID.postschell.com File No.: 1752/120940 September 30,2004 VIA FEDERAL EXPRESS Orphans' Court Division c/o Register of Wills Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013-3387 PENNSYLVANIA PHILADELPHIA RE: In Re: Estate of David M. Gross Cumberland County No. 2103-1065 PITTSBURGH Dear Sir or Madam: HARRISBURG Enclosed for filing please find the original and two copies of the foregoing documents: LANCASTER ALLENTOWN 1) Brief of Brian John Gross in Support of Petition for Revocation of Letters and Removal of Administratrix; and NEW JERSEY 2) Petitioner, Brian John Gross' Motion in Limine for Sanctions for Failure to Respond to Discovery Requests. PRINCETON Would you please time-stamp the extra copy of each document and return them to our office. By copy of this correspondence, the same has been served on Respondent's counsel and The Honorable George E. Hoffer. If you have any questions or comments, please feel free to contact me. Very truly yours, f~ >>- . N\A.s 0Lc::it Paula J. McDermott PJM:djs Enclosures Cc: James Nealon, Esquire (w/enclosures) (Regular Mail) )::weHonorable George E. Hoffer (w/enclosures) (Federal Express) .// 240 GRANDVIEW AVENUE CAMP Hill, PA 17011 717.731.1970 WWW.POSTSCHEll.COM A PENNSYLVANIA PROFESSIONAL CORPORATION ~ ~ Paula J. McDermott, Esquire Attorney I. D. # 46664 Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6012 E-mail: pmcdermott@postschell.com IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUESTS TO: THE HONORABLE JUDGE HOFFER 1. This matter is scheduled for hearing before this Honorable Court on October 4,2004 at 9:30 a.m. 2. The Citation in this matter was filed on May 11, 2004. 3. On June 16, 2004, a Request for Production of Documents directed to Respondent Elizabeth Barth, was served upon her attorney, James Nealon, Esquire. A true and correct copy of that Request for Production of Documents is attached hereto as Exhibit "A." 4. On June 16, 2004, Interrogatories of Petitioner Brian John Gross directed to Respondent Elizabeth Barth were served upon her attorney, James Nealon, Esquire. A true and correct copy of those Interrogatories is attached hereto as Exhibit "B." .... .. 5. Answers to those discovery requests were due on July 16, 2004. 6. At some point, subsequent to July 16, 2004, Brian Gross' counsel, Paula J. McDermott received a telephone call from James Nealon, counsel for Respondent, requesting an extension of time to answer the Interrogatories due to failure to obtain certain documents he alleged he was seeking to obtain from the Social Security Administration. 7. On July 28, 2004, Petitioner's counsel, Paula J. McDermott, wrote Attorney Nealon demanding that all documents not pertaining to Social Security be produced and that the Interrogatories be answered. A true and correct copy of this correspondence dated July 28,2004 is attached hereto as Exhibit "C." 8. No further extension has been sought, nor have any of the Interrogatories or Requests for Production of Documents ever been objected to by Respondent's counsel. 9. Petitioner's counsel took the deposition of Elizabeth M. Barth, Respondent herein, on August 13, 2004. 10. During that deposition, Petitioner's counsel made a statement in the record indicating that no responses to either the Requests for Production of Documents or Interrogatories had been received. A true and correct copy of Page 6 of the Deposition Transcript of Elizabeth M. Barth dated August 13, 2004, is incorporated hereby and attached hereto as Exhibit "D." 11. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, this Court is empowered to impose sanctions for failure to answer discovery requests. 2 .. .. 12. Rule 4019(a)(1) indicates, 'The court may on motion make an appropriate order if (i) a party fails to serve sufficient answers or objections to written interrogatories under Rule 4005. . ." 13. Pursuant to Rule 4019(a)(1 )(vii), the Court may make an appropriate order if a party in response to a Request for Production or Inspection made under Rule 4009, fails to respond. 14. Pursuant to Pa. RCP 4019(c) SS1 and 2, this Court has the authority to issue an Order that the matters regarding which the questions were asked, or the contents of papers, or any other designated facts not responded to shall be taken to be established for the purposes of the action in accordance with the claim. 15. Furthermore, this Court is empowered to issue 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, or from introducing evidence of physical or mental condition. 16. This Court is also empowered pursuant to Rule 4019(c)(5) to make such order as is just with regard to the failure to make discovery. 17. The imposition of specific sanctions is largely within the discretion of the trial court. Ironworkers Savino & Loan Association v. WIS, Inc., 424 Pa. Super. 255, 622 A.2d 367 (1993). 18. When a discovery sanction is imposed, the sanction must be appropriate when compared to the violation of the rules. Thompson v. Royal Insurance, 361 Pa. Super. 78, 521 A.2d 936 (1986). 3 ,,- 19. No reasonable justification exists for the failure to answer any discovery whatsoever in this matter. Hutchison bv Hutchison v. Luddv, 417 Pa. Super. 93, 611 A.2d 1280 (1992), appeal qranted 533 Pa. 660, 625 A.2d 1193 (1993). 20. Since Respondent has not produced any documents relating to her claim to be the common law spouse of the late David M. Gross pursuant to Paragraph 1 of the Request for Production of Documents, nor any and all documents identified in response to the Answer to the Petition pursuant to Request 2 of the Requests for Production of Documents, Respondent should not be permitted to introduce any such documents at trial. 21. Since Respondent has failed to identify witnesses pursuant to Question 3; witness statements pursuant to Question 4; demonstrative evidence pursuant to Question 5; and trial witnesses pursuant to Question 6 of the Petitioner's Interrogatories, Respondent should be precluded from presenting any such witnesses or demonstrative evidence. 22. Additionally, since Respondent has failed to answer any questions pursuant to the written discovery requests attached hereto as Exhibit "B" relating to her claim, she should be precluded from presenting any evidence whatsoever of her claims at trial. 23. Petitioner Brian John Gross has been prejudiced by the failure to answer discovery since Petitioner Brian John Gross is not informed as to what claims or defenses will be presented; no opportunity has been afforded to depose witnesses. 4 WHEREFORE, Petitioner Brian John Gross respectfully requests this Honorable Court to sign an Order in the form attached, precluding Respondent from producing any documentation, witnesses or testifying at the hearing in this matter. Respectfully submitted, POST & SCHELL, P.C. p~~~~ PAULA J CDERMOTT, ESQUIRE Attorney 1.0. # 46664 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6012 Attorneys for Petitioner, Brian J. Gross Date: ~ s..er~ ,2004 5 EXHIBIT A IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 PETITIONER BRIAN JOHN GROSS' REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO RESPONDENT ELIZABETH BARTH TO: Elizabeth Barth c/o James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, P A 17110 INSTRUCTIONS/DEFINITIONS The following instructions and definitions form an integral part of these Requests, and the Requests are to be read in accordance with these instructions and definitions. I. "Document": The term "document" means any written, printed, typed, or other recorded or graphic matter of any kind or nature, however produced or reproduced, whether sent or received or neither, including drafts and copies bearing notations or marks not found on the original, and includes, but is not limited to: (a) all contracts, agreements, representations, warranties, certificates, OpInIOnS; (b) all letters or other forms of correspondence or communication, including envelopes, notes, telegrams, cables, telex messages, messages (including reports, notes, notations and memoranda of or relating to telephone conversations or conferences); (c) All memoranda, reports, test results, financial statements or reports, notes, transcripts, tabulations, studies, analyses, evaluations, projections. work papers, corporate records or copies thereof, lists, comparisons, questionnaires, surveys, charts, graphs, summaries, extracts, statistical records; compilations, (d) all desk calendars, appointment books, diaries; (e) all books, articles, press releases, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, manuals, (f) all minutes or transcripts of all meetings; and (g) all photographs, microfilms, phonographs, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, printouts, and other data compilations from which information can be obtained. II. "Communication": The term "communication" means any and all transmISSIons of information, the information transmitted, the process by which the information is transmitted and the term shall expressly be inclusive of all written and oral communications. III. "Identify", "Identity" or "Identification": A. When used in reference to a natural person, the terms "identify," "identity" or "identification" mean to provide the following information: (i) full name; (ii) present or last known business and residence addresses; (iii) present or last known business affiliation; and (iv) present or last known business position (including job title and a description of job functions, duties and responsibilities). B. When used with reference to any entity other than a natural gerson, state: (i) its full name; (ii) the address of its principal place of business; (iii) the jurisdiction under the laws of which it has been organized or incorporated and the date of such organization or incorporation; (iv) the identity of all individuals who acted and/or who authorized another to act on its behalf in connection with the matters referred to; (v) in the case of a corporation, the names of its directors and principal officers; and (vi) in the case of an entity other than a corporation, the identities of its partners or principals or all individuals who acted or who authorized another to act on its behalf in connection with the matters referred to. C. When used in reference to a document, the terms "identify," "identity" or "identification" mean to provide the following information: (i) the nature of the document (~, letter, contract, memorandum) and any other information (~, its title, index or file number) which would facilitate in the identification thereof. (ii) its date of preparation; (iii) its present location and the identity (as defined in Paragraph III (A) hereof) of its present custodian or, if its present location and custodian are not known, a description of its last known disposition; (iv) its subject matter and substance or, in lieu thereof, annex a legible copy of the document to the answers of those interrogatories; (v) the identity (as defined in Paragraph III(A) hereof) of each person who performed any function or had any role in connection therewith (~, author, contributor of information, recipient, etc.) or who has any knowledge; and (vi) if the document has been destroyed or is otherwise no longer in existence or cannot be found, the reason why such document no longer exists, the identity (as defined in Paragraph IlI(A) hereof) of the people responsible for the document no longer being in existence and of its last custodian. D. When used in connection with an oral communication, the terms "identify," "identity," and "identification" mean to provide the following information: (i) its general nature (~, conference, telephonic communication, etc.); (ii) the time and place of its occurrence; (iii) its subject matter and substance; (iv) the identity (as defined in Paragraph IlI(A) hereof) of each person who performed any function or had any role in connection therewith or who has any knowledge thereof together with a description of each such person's function, role, or knowledge; and (v) the identity (as defined in Paragraph IlI(B) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof. IV. "Describe" or "Description": (A) When used with respect to any act, action, accounting, activity, audit, practice, process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme, communication, conference, discussion, development, service, transaction, instance, incidence or event, the terms "describe" or "description" mean to provide the following information: (i) its general nature; (ii) the time and place thereof; (iii) a chronological account setting forth each element thereof, what such element consisted of and what transpired as part thereof; (iv) the identity (as defined in Paragraph IIl(A) hereof) of each person who performed any function or had any role in connection therewith (~, speaker, participant, contributor or information, witness, etc.) or who has any knowledge thereof together with a description of each such person's function, role or knowledge. (v) the identity (as defined in Paragraph IIl(e) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and (vi) the identity (as defined in Paragraph IlI(D) hereof) of each oral communication which was a part thereof or referred thereto. (B) When used in connection with any calculation or computation, the terms "describe" or "description" mean to provide the following information: (i) an explanation of its meaning (including the nature, source and meaning of each component part thereof); (ii) an explanation ofthe manner in which it was derived; (iii) the identity (as defined in Paragraph III(A) hereof) of each person who performed any function with respect thereto and a description of his function; (iv) the identity of each document (as defined in Paragraph III(C) hereof) which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and (v) the identity (as defined in Paragraph III(D) hereof) of each oral communication which occurred in the course of the preparation thereof or which referred thereto. V. "Factual basis": The term "factual basis" means (A) set forth each item of information upon which the allegation, contention, claim or demand to which it pertains is based, and (B) with respect to each such item of information, identify each person having knowledge thereof and identity and describe (as defined in Paragraph III and IV hereof) each source thereof including but not limited to each document, oral communication, act, actioI1, activity, accounting, negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, calculation and computation upon which you rely with respect thereto. VI. "Relates to" or "thereto": The terms "relates to" or "thereto," "relating to" or "thereto" when used in connection with any act, action, activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual provision or document, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, etc., means used or occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence thereof, or referring thereto. VII. Answer by Reference to Documents: If any request is answered by reference to a document or group of documents, with respect to each such response, identify (as defined in Paragraph III(C) hereof) the specific document or documents containing the requested information. VIII. "Person": The term "person" means all natural persons, corporations, partnerships or other business associations, public authorities, municipal corporations, state governments, all governmental bodies, and all other legal entities. IX. "Complaint": Refers to the matter that was filed, as captioned above. X. "Each": "Each" includes both "each" and "every." XI. "And"I"Or": The conjunctive "and" and the disjunctive "or" shall be mutually interchangeable and shall not be construed to limit any Interrogatory or Document Request. XII. "Gender": The singular and masculine gender shall respectively include the plural and feminine gender, and vice versa, and neither shall be construed to limit any Interrogatory or Document request. XIII. If you claim that an answer to any discovery request or subpart thereof, or any document related to any discovery request or subpart thereof, or any document requested in each and every discovery request is privileged or otherwise protected from discovery, provide the following information: (A) Identify each and every person involved in the act, communication, or information, and, if the claimed privilege related to a document, identify each person who prepared or participated in the preparation of the document and who received it, and each person from whom the document was received; and (B) Provide sufficient information concerning the act, communication, information or document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of that claim. XIV. Parties: "Petitioner" - The term "petitioner" refers to Brian John Qross; "Respondent" - The term "respondent" refers to you, Elizabeth Barth. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Kindly identify and produce any and all documents not privileged in your, your agents', and/or attorneys' possession relating to your claim to be the common-law spouse of the late David M. Gross. 2. Kindly produce any and all documents which are identified in your Response to the Petition. 3. Kindly produce any and all expert reports which you obtained in connection with this matter and/or which you intend to use at the hearing of this matter. Respectfully submitted, POST & SCHELL, P .C. P,.I}\-L~ PAULAJ. DERMOTT, ESQUIRE Attorney J.D. # 46664 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6012 Attorneys for Petitioner, Brian John Gross Date: June 16,2004 VERIFICATION I, Elizabeth Barth, Respondent in the foregoing action, hereby affirm that the facts and matters set forth in the foregoing document are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. g4904 relating to unsworn falsification to authorities. Elizabeth Barth Date: ,2004 CERTIFICATE OF SERVICE I, Dena J. Stump, an employee of the law firm of Post & Schell, P.C., do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in the United States mail, first-class, postage prepaid: James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, PAl 711 0 POST & SCHELL, P.c. Date: Junel ~ 2004 CPH 294609vl EXHIBIT B IN RE: EST A TE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 INTERROGATORIES OF PETITIONER BRIAN JOHN GROSS DIRECTED TO RESPONDENT ELIZABETH BARTH TO: Elizabeth Barth c/o James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, P A 17110 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R. Civ. P. 4006, as amended, to serve upon the undersigned a copy of your individual answers and objections, if any, in writing and under oath, to the following Interrogatories within thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the space provided. If there is insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a supplemental sheet. These shall be deemed to be continuing Interrogatories. If, between the time of your Answers and the time of the trial of this case, you or anyone acting on your behalf, learn of any further information not contained in your Answers, you shall promptly furnish said information to the undersigned by Supplemental Answers. POST & SCHELL, P.c. Date: June I Ct1, 2004 f~~l1\i.c~ Paula J. McD ott, EsqUIre Attorney J.D. No. 46664 240 Grandview A venue Camp Hill, PA 17011 (717) 731-1970 Attorneys for Plaintiff INSTRUCTIONSIDEFINITIONS The following instructions and definitions form an integral part of these interrogatori'es, and the interrogatories are to be read in accordance with these instructions and definitions. I. "Document": The term "document" means any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, whether sent or received or neither, including drafts and copies bearing notations or marks not found on the original, and includes, but is not limited to: (a) all contracts, agreements, representations, warranties, certificates, OpInIOnS; (b) all letters or other forms of correspondence or communication, including envelopes, notes, telegrams, cables, telex messages, messages (including reports, notes, notations and memoranda of or relating to telephone conversations or conferences); (c) All memoranda, reports, test results, financial statements or reports, notes, transcripts, tabulations, studies, analyses, evaluations, projections. work papers, corporate records or copies thereof, lists, comparisons, questionnaires, surveys, charts, graphs, summaries, extracts, statistical records; compilations, (d) all desk calendars, appointment books, diaries; (e) all books, articles, press releases, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, manuals, (f) all minutes or transcripts of all meetings; and (g) all photographs, microfilms, phonographs, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, printouts, and other data compilations from which information can be obtained. II. "Communication": The term "communication" means not only oral communications but also any "documents" (as such term is defined above), whether or not such document or the information contained therein was transmitted by its author to any other person. III. "Identify", "Identity" or "Identification": A. When used in reference to a natural person, the terms "identify," "identity" or "identification" mean to provide the following information: (i) full name; (ii) present or last known business and residence addresses; (iii) present or last known business affiliation; and (iv) present or last known business position (including job title and a description of job functions, duties and responsibilities). B. When used with reference to any entity other than a natural person, state: (i) its full name; (ii) the address of its principal place of business; (iii) the jurisdiction under the laws of which it has been organized or incorporated and the date of such organization or incorporation; (iv) the identity of all individuals who acted and/or who authorized another to act on its behalf in connection with the matters referred to; (v) in the case of a corporation, the names of its directors and principal officers; and (vi) in the case of an entity other than a corporation, the identities of its partners or principals or all individuals who acted or who authorized another to act on its behalf in connection with the matters referred to. C. When used in reference to a document, the terms "identify," "identity" or "identification" mean to provide the following information: (i) the nature of the document (~, letter, contract, memorandum) and any other information (~, its title, index or file number) which would facilitate in the identification thereof. (ii) its date of preparation; (iii) its present location and the identity (as defined in Paragraph UI(A) hereof) of its present custodian or, if its present location and custodian are not known, a description of its last known disposition; (iv) its subject matter and substance or, in lieu thereof, annex a legible copy of the document to the answers of those interrogatories; (v) the identity (as defined in Paragraph UI(A) hereof) of each person who performed any function or had any role in connection therewith ~, author, contributor of information, recipient, etc.) or who has any knowledge; and (vi) if the document has been destroyed or is otherwise no longer in existence or cannot be found, the reason why such document no longer exists, the identity (as defined in Paragraph UI(A) hereof) of the people responsible for the document no longer being in existence and of its last custodian. D. When used in connection with an oral communication, the terms "identify," "identity": and "identification" mean to provide the following information: (i) its general nature (~, conference, telephonic communication, etc.); (ii) the time and place of its occurrence; (iii) its subject matter and substance; (iv) the identity (as defined in Paragraph III(A) hereof) of each person who performed any function or had any role in connection therewith or who has any knowledge thereof together with a description of each such person's function, role, or knowledge; and (v) the identity (as defined in Paragraph I1I(B) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof. IV. "Describe" or "Description": (A) When used with respect to any act, action, accounting, activity, audit, practice, process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme, communication, conference, discussion, development, service, transaction, instance, incidence or event, the terms "describe" or "description" mean to provide the following information: (i) its general nature; (ii) the time and place thereof; (iii) a chronological account setting forth each element thereof, what such element consisted of and what transpired as part thereof; (iv) the identity (as defined in Paragraph IIl(A) hereof) of each person who performed any function or had any role in connection therewith (~, speaker, participant, contributor or information, witness, etc.) or who has any knowledge thereof together with a description of each such person's function, role or knowledge. (v) the identity (as defined in Paragraph IlI(C) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and (vi) the identity (as defined in Paragraph IIl(D) hereof) of each oral communication which was a part thereof or referred thereto. (B) When used in connection with any calculation or computation, the tenus "describe" or "description" mean to provide the following information: (i) an explanation of its meaning (including the nature, source and meaning of each component part thereof); (ii) an explanation of the manner in which it was derived; (iii) the identity (as defined in Paragraph IIl(A) hereof) of each person who performed any function with respect thereto and a description of his function; (iv) the identity of each document (as defined in Paragraph IIl(C) hereof) which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and (v) the identity (as defined in Paragraph IIl(D) hereof) of each oral communication which occurred in the course of the preparation thereof or which referred thereto. V. "Factual basis": The term "factual basis" means (A) set forth each item of information upon which the allegation, contention, claim or demand to which it pertains is based, and (B) with respect to each such item of information, identify each person having knowledge thereof and identity and describe (as defined in Paragraph III and IV hereof) each source thereof including but not limited to each document, oral communication, act, action, activity, accounting, negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, calculation and computation upon which you rely with respect thereto. VI. "Relates to" or "thereto": The terms "relates to" or "thereto," "relating to" or "thereto" when used in connection with any act, action, activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual provision or document, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, etc., means used or occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence thereof, or referring thereto. VII. Answer by Reference to Documents: If any interrogatory is answered by reference to a document or group of documents, with respect to each such interrogatory answer, identify (as defined in Paragraph In(C) hereof) the specific document or documents containing the requested information. VIII. "Person": The term "person" means all natural persons, corporations, partnerships or other business associations, public authorities, municipal corporations, state governments, all governmental bodies, and all other legal entities. IX. "Complaint": Refers to the matter that you filed, as captioned above. X. "Each": "Each" includes both "each" and "every." XI. "And"/"Or": The conjunctive "and" and the disjunctive "or" shall be mutually interchangeable and shall not be construed to limit any Interrogatory or Document Request. XII. "Gender": The singular and masculine gender shall respectively include the plural and feminine gender, and vice versa, and neither shall be construed to limit any Interrogatory or Document request. XIII. If you claim that an answer to any Interrogatory or subpart thereof, or any document related to any Interrogatory or subpart thereof, or any document requested in the accompanying Requests for Production of Documents is privileged or otherwise protected from discovery, provide the following information: (A) Identify each and every person involved in the act, communication, or information, and, if the claimed privilege related to a document, identify each person who prepared or participated in the preparation of the document and who received it, and each person from whom the document was received; and (B) Provide sufficient information concerning the act, communication, information or document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of that claim. XIV. Parties: "Petitioner" - The term "petitioner" refers to Brian John Gross. "Respondent" _ The term "respondent" refers to you, Elizabeth Barth. INTERROGATORIES 1. Personal Information. -- State: RESPONSE: (a) Your full name: (b) Each other name, if any, which you have used or by which your have been known: (c) The name of any spouses and the dates and place of your marriage to such spouses: (d) The address of your present residence and the address of each other residence which you have had during the past five years: (e) Your present occupation and the name and address of your employer: (f) Date of your birth: (g) Your Social Security number; and (i) The schools you have attended and the degrees or certificates awarded, if any. case. 2. State with particularity the factual basis for each claim you are asserting in this RESPONSE: 3. Witnesses. RESPONSE: (a) Identify each person who (1) Was a witness to any statements or ceremonies which you claim to have occurred in connection with your assertion that you are the late David Gross' common-law wife; (2) Has knowledge of facts concerning the issues referenced in the Petition and Answer to Petition; (b) With respect to each person so identified, state that person's relationship to the events described in the Petition and Answer, and basis of knowledge with respect to your alleged marriage to the late David Gross. 4. Statements. If you know of anyone that has given any statement (as defined by the R.C.P.) concerning this action or its subject matter, state: (a) The identity of such person; (b) When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and (c) The identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. RESPONSE: 5. Demonstrative evidence. If you know of the existence of any photographs, motion pictures, and/or video recordings relevant to the claim, state: (a) The nature or type of such item; (b) The date when such item was made; (c) The identity of the person that prepared or made each item; and (d) The subject that each item represents or portrays. RESPONSE: 6. Trial witnesses. Identify each persons you intend to call as a non-expert witness at the trial of this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. RESPONSE: 7. Expert witnesses. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: (a) The subject matter about which the expert is expected to testify; and (b) The substance of the factors and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may HIe as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) RESPONSE: 8. Trial exhibits. Identify all exhibits that you intend to use at the trial of this matter and state for what purpose they will be used. RESPONSE: 9. Books, magazines, etc. such writing at trial state: If you intend to use any book, magazine, or other (a) The name of the writing; (b) The author of the writing; (c) The publisher of the writing; (d) The date of publication ofthe writing; and (e) The identity of the custodian of the writing. RESPONSE: 10. Admissions. If you intend to use any admission(s) of a party at trial, identify such admission(s). RESPONSE: 11. Since you claim to be the common-law spouse of David Gross, state the reasons why you permitted Ramona Gross to be Administratrix of the Estate of the late David Gross. RESPONSE: 12. State why you listed yourself as the fiance of the late David Gross in the obituary attached to the Petition. RESPONSE: 13. Identify individuals to whom you held yourself out as the common-law spouse;: of David M. Gross; state the method in which you held yourself out as the common-law spouse: of David M. Gross; and state the date and time of any such representation or communication. RESPONSE: 14. State why the late David Gross testified that you were his fiance? RESPONSE: 15. Explain David Gross' testimony in the personal injury lawsuit in Dauphin County that you have never been married. RESPONSE: 16. State why an engagement announcement for yourself and David M. Gross was placed in The Patriot News if you are his common-law spouse. RESPONSE: 17. State the date on which you indicate that the common-law marriage took place. As to that date, state the persons present, the nature of the words exchanged, and the place and time of such exchange. RESPONSE: 18. Describe your role in the reporting of the death of David M. Gross for purposes of the Death Certificate. RESPONSE: 19. Identify any and all individuals who provided information for the Certificate of Death. State as to why decedent, David Gross, was listed as "divorced with no surviving spouse" on such Certificate of Death to the best of your knowledge, information and belief RESPONSE: 20. State your role as to the preparation of the obituary for the late David M. Gross which appeared in The Patriot News on Tuesday, August 19,2003. RESPONSE: 21. State as to the best of your knowledge, information and belief why you are listed as the fiance in that obituary. RESPONSE: 22. Identify any and all documentation which you provided to Social Security to support your position that you were the common-law spouse of the late David M. Gross. RESPONSE: 23. You allege that the Social Security Administration conducted an investigation .md contacted friends and relatives of David M. Gross. Identify all such friends and relatives of David M. Gross, and describe their position on your assertion that you were the late David Gross' common-law wife. RESPONSE: 24. Identify any and all documentation of any type which supports your contention that you were the late David Gross' common-law wife. RESPONSE: 25. Describe why you permitted litigation relating to the late David Gross' personal injury claim in Dauphin County to be conducted by Ramona Gross as representative of the David Gross Estate if you were his common-law wife? RESPONSE: 26. Describe any and all evidence, including your own conversations which you had with representatives of the Social Security Administration which you believe establish your claim. As to such conversations, state the date of the conversation, the time of the conversation, the parties to the conversation, and the nature of the claims asserted. RESPONSE: 27. Identify any and all parties who were afforded the chance to offer testimony or cross-examine you relating to the Social Security claim. RESPONSE: 28. State the nature of any and all evidence, documentary or otherwise, presented by you to the Cumberland County Office of the Register of Wills in connection with your appointment as Administratrix d/b/n of the Estate of David Gross. RESPONSE: 29. As to your Affidavit of Common Law Marriage filed with your employer, state the date which that was filed and advise as to any investigation undertaken by your employer. As so any such investigation, indicate whom was contacted and the nature of statements made by any such individuals, and state the names of any and all individuals at your employer with whom you dealt in connection with said Affidavit, including names, addresses and job titles. RESPONSE: 30. Describe any and all conversations between you and Father Sawdy. As to such conversations, state the date, time, means of conversation and the parties present. RESPONSE: Respectfully submitted, POST & SCHELL, P.e. P~a.~~~ PAULAJ. CDERMOT ,ESQUrnE Attorney I.D. # 46664 240 Grandview Avenue Camp Hill, P A 17011 (717) 612-6012 Attorneys for Petitioner, Brian John Gross Date: June 15,2004 . VERIFICATION I, Elizabeth Barth, Respondent in the foregoing action, hereby affirm that the facts and matters set forth in the foregoing Petitioner's Interrogatories Directed to Respondent are tme and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. g4904 relating to unsworn falsification to authorities. Elizabeth Barth Date: ,2004 . CERTIFICATE OF SERVICE I, Dena J. Stump, an employee of the law firm of Post & Schell, P.C., do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in the United States mail, first-class, postage prepaid: James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, PAl 711 0 POST & SCHELL, P.C. Date: Junel G , 2004 CPH 294586vI EXHIBIT C . , poSi'\ SCHELLpc ATTORNEYS AT LAW FILE Paula J. McDermott Direct Dial: 717-612-6012 Fax Number: 717-731-1985 pmcdermott@postschell.com File No.: 1752/120940 July 28, 2004 James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, P A 1711 0 RE: Estate of David M. Gross Cumberland County Orphans' Court No. 2103-1065 Gross v. Archibald Builders Dauphin County CCP No. 2601 CV 1999 PENNSYlVANIA PHIlADELPHIA PITTSBURGH Dear Jim: HARRISBURG LANCASTER When we talked, you indicated you were waiting for information from Social Security to complete your responses to Interrogatories and Requests for Production of Documents. Kindly produce whatever does not pertain to the Social Security and answer the Interrogatories, subject to your right to supplement when you receive your information. Meanwhile, I would like to schedule your client's deposition for Friday, August 13 in our office. I enclose a Deposition Notice for that purpose. It seems to me that it would be advisable for the parties to have taken your client's deposition prior to the Status Conference on the 19th with Judge Hoover. AUENTOWN NEW JERSEY PRINCETON I will look forward to hearing from you in this regard. Very truly yours, ~~~.~(~ Paula f McDermott PJM:djs Enclosure cc: Brian Gross Thomas Brenner, Esquire Johnna J. Kopecky, Esquire 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 717.731.1970 WWW.POSTSCHELl.COM A PENNSYLVANIA PROFESSIONAL CORPORATION - EXHIBIT D '-- \.- -, -.- .. , , IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA DAVID GROSS, Plaintiff No. 2601 S 1999 vs. ARCHIBALD BUILDERS, Defendant JURY TRIAL DEMANDED Deposition of: ELIZABETH M. BARTH Taken by Counsel for Brian Gross Date August 13, 2004; 9:10 a.m. Place Post & Schell, P.C. 240 Grandview Avenue Camp Hill, Pennsylvania " Before Susan D. Kashmere, RPR Reporter - Notary Public APPEARANCES: POST & SCHELL, P.C. By: PAULA J. McDERMOTT, ESQ. For - Brian Gross NEALON & GOVER, By: ANDREW C. P.C. LEHMAN, ESQ. For - Elizabeth Barth FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 \ , .; '-" '-' '-' ., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A. Exam./McDermott - Barth 6 No alcohol or drugs. MR. LEHMAN: Ms. McDermott, usual stipuations okay? MS. MCDERMOTT: Yes. MR. LEHMAN: She's going to reserve the right to decide if she's going to read and sign after completion. MS. MCDERMOTT: Now, the other thing I wanted to put on the record in that regard also is that we have not received answers to either our request for production of documents or to our interrogatories, the answers to which were due on or about July 15th. At that point I did give Mr. Nealon an extension to answer, but in subsequent correspondence requested that he do go ahead and answer them and he hasn't, which may, you know, depending on the answers this morning, require at some future point another deposition after we've received those answers. And I wanted to just put that in the record as a statement. I don't know if anyone else has anything to add to that. 24 BY MS. MCDERMOTT: 25 Q. We've got most of the preliminaries out of the FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 ..I' - ,I CERTIFICATE OF SERVICE I, Dena J. Stump, an employee of the law firm of Post & Schell, P.C., do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in the United States mail, first-class, postage prepaid: James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, PA 17110 POST & SCHELL, P.C. ~Jko . ena. mp~retary Dal<l;. 5< 11 fMn~ :Y). 2004 6