HomeMy WebLinkAbout94-04510
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4, The Jlhdnllffs fulOlled all Ihe provision of the allrecmenl on Ihelr part 10 be
performed .
5. Defendant has not fulfilled the pro\llslons of the ogrel!ment on his part 10 be
performed .
6. Defendant hos wholly neglected to do and perform certuln things which were
expressly or by neccssury Implication required Iu be dUlle and perful'lned by DefendlUll per the
terms of the ogreement ns more fully set furth Inlhe esllmale 10 cOIII/Jlete Ihe contruct uUnched
hereto and Incorporuled herein by relilrence lheretullnd marked us Exhibit "13",
7, Defendunt hus performed In a pllllr, Improper. and unwurkmanllke munner cerlllln
other things which were expressly or by necessary Implkalion required by the agreement to be
done and performed in a proper and workmanlike manner, as follows:
Ca) Falling to Inslull a twelve (12) inch main trunk line from the HVAC
system 10 the master bedroom;
(b) Installing six (6) Inch flexible extension lubing directly from the HV AC
unit 10 the master bedroom;
Ce) Installing thermostats directly under the skylights;
Cd) Failing to Inslall and prepare the appropriate foundation for the tiles In the
bathroom; and,
Ce) Failing to properly supervise and Insure the correct installatlOll of the
marble tlles In the bathroom,
4
8, In addition to Defendunt'! fuUure to perforlllthe work or Ihe performallce of work
In an Improper and unworknHlnllke manncr as sct forth In paragraphs 6 and 7 hereof, the
Defendl1llt faUed to complete and faUed 10 Inslulla drcular window In the master bUlhroomand
has fuUed to t1nlsh the eXlcrlor brick work and wLlodwurk around the: drcul'lr window Insllllled
in Ihe llIasler bedroom.
9. Thc estinHlte for Inslalllng Ihe circular window in the masler bathroom and
complelingthe exterior brick work and woodwOI'k for the circular window Instlllled In the masler
bathroollll1llllverred In pamgraph 8 hereof is $4,000,00,
10, Defendant, received paYl11entto provide cerluln supplies which were not supplied
as required by the contract, as follows:
Ca) 14 recessed IIghls;
(b) one ceiling fall; and,
(c) materials for the t1replllce llIalltel,
11. The allowl1llces provided in Ihe wrlllcn conlract for the electrical t1xtures Is
$1,550,00 which SUI11 has b~n paid to Defendant.
12, Defendant has also failed to inSlallthe shower door and a new sink and faucet in
the downsllllrs bathrool11 for which the contract provided for I1Il allowllllce III the al110unt of
$175,00,
5
13, Defendant has recel \led the IIIllney for the installation of the shower dllOr, sink
III1d faucet in the lower bathroom In the amount of $17.5,00, but has fniled to perform according
to his contructunl requirements,
14. The allowance for the I1rcpluce nlltntel was $240,00 which sum Ims been paid to
Defcndwll.
15, Defcndant hus failed and refused, und sllll refuses, to cure said breaches, despite
Plntntlffs' repeated dcmands, The reusonublc cost of remedying the aforesuld breaches is in
excess of $17,10.5.00 plus Incrcased ulllhy expcnscs Incurred by Plaintiffs,
16, Plaintiffs have puld to Dcfcndunt sums to cover the purchasc of materials, supplies
WId to pay certain subcontractors, Including Essls und Sons, Inc"
17, Essls and Sons, Inc, hus notified Plulnliffs lhatlmyment for the materials, supplies
III1d labor has not been made by Defcndant in the umount of approximutely $14,050.33 plus
interest at U1C rate of I 1/2 percent (1 1/2 %) per nllJnlh from April 21, 1994,
18, Essls and Sons, Ine, has nOli lied Plainliffs as properly owner of their intent to file
a Mechwlics Lien against their real properly,
19, Desphe demand, Defendant has unreasonably failed to pay the sums paid to
DefendWll in the amount I)f $14,050,33 to pay Essls and Sons, Inc, or refund the money to
Plaintiffs,
WHEREFORE, Plaintiffs demand Judgment against Defendant ill the amount of
$31,155,33, with costs plus interest,
6
~O\JNT IJ, UN,IU~1' ENJ!'~"M~Nt
20. The Plalllll ffs Incorpornle the averments of pnrallraphs 1 through 19 of their
Compllllnt herein by reference thereto,
21, Plaintiffs have pnld to Defelllhull all 5Ul1l5 nece55tlrY to pay materialmen, suppliers
and 5ubcontrnetors for the work.
22, Plaintiffs have pall! sums suflklcnt for Dcfcndnnt to ptlY for the subcolllract
entered inlo bctwecn Dcfendtull and Essls and Sons. Ine, for thc Installation of marblc tile in the
bathroom, supply various other mntcrlnls nnd to pcrforl1l Ihe other work provldcd for in the
contract.
23. Essis and Sons, Ine, has nOllt1cd Plaintiffs of Ihclr Inlentlonto me a Mechanics
Lien agalnst Plaintiffs' real property for failure of Defendant to pay the contractually agreed
upon amount.
24, Defendant has wrongfully, and \n \llolal\on of his contractual obligations, failed
to pay the sums owed to Essls and Sons, Inc,; failed 10 provide I1Inlerlals and supplies for which
he has already been paid by Plaintiffs; fulled to pcrform the work for which he Ims been paid;
or lIItematlvely, refund the monies paid by Plaintiffs 10 Defcndant.
2.5. Defendant has been unjuslly enrichcd inlhc amount of $31,1.5.5,33 plus Interest.
WHEREFORE, Plaintiff dcmands judgmcnt against Defendant in the amount of
531,1.5.5,33, with costs of suit and inlerest,
7
~OUNT III, DEI,A Y DAMAGES
26, Plaintiffs Incorporate the avenncnts of paragraphs 1 through 2' of their Complaint
herein by refcrence thcreto,
27, The wriucn contrnctbetween Plaintiffs and Defendant provides that the contrnct
amount 10 be paid by Plaintiffs to Defendlllltbe reduced by $100,00 per day for each day the
work 15 not subsulIltially completed aner December 4, 199.\,
28, Plaintiffs WId Defendant omlly agreed to extend the substantial completion date
from December 4, 1993 until December 16, 1993,
29, Controry to his ogreements, Defendant flliled to substUJlllally complete the work
on or before December 16, 1993,
30. Plaintiff made repealed assurances from and after December 16, 1993 until
April 22, 1994 that the work would be completed in a good and workmanllkc nUlI1ner.
31. On or about June 15, 1994, duc to Defendant's continued failure to perform,
Plaintiffs terminated the contract with Dcfcndant for failing to perform his obligation to
subslllntiaily complete work In a tlmcly, proper and workmanllkc manner,
32, Plaintiffs ha\le paid to Defendant approximately $49,000,00,
8
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BRAD E. HOLLINGER and
DEBORAH MYERS WELSH,
Plaintiffs
IN THE COUR'f OF COMMON PLEAS OF
CUMBERLAND COUN'fY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
JAMES M. CLEMONS,
t/d/b/a CLEMONS AND SONS
CONSTRUCTION,
Detendant
94-4510 CIVIL TERM
ORDER OF COUB'f
A.WD NOW I this 31st day of May, 1996, upon
consideration of the Petition for Adjudioation of ci\lil
contempt, and following a hearing at whioh the Defendant
admitted that he had not paid the Bum of $725,00 to Plaintiffs,
as required by the Order of Court dated June 20, 1995, and at
which the Defendant indicated that he would be able to pay that
sum within 14 days of today's date, the Court finds that the
Defendant has intentionally, voluntarily, and willfully failed
to comply with the Order of court, and he is consequently
adjudioated in contempt, The sentence of the Court is that the
Det'endant undergo imprisonemnt ill the Cumberland County Prison
for a period of one month, The condition of purge with respect
to this sentence is that the Defendant pay the sum of $725.00 to
Plaintiffs through their counsel within 14 days of today's date,
Since the Defendant may purge himself with
respect to the sentence imposed herein within 14 days of today's
date, commencement of service of this sentence herein is
deferred until Friday, June 14, 1996, at 9100 a,m" at which
time the Defendant shall present himself to the Cumberland
County Prison authorities without further Order of Court unless
he has paid the aforesaid sum,
All other relief requested by the Plaintiffs is
denied,
1I1tAP l!. 1I()1,',INllI'Ill Ilnd
PM ROllA" MY~HH WilLS",
l'lalntH h
IN THB COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V,
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CIVIL ACTION - LAW
JAMBS M. CI.llMONH,
t/d/b/ll CLl!MONS AND SONS
CONS'I'IlUC'I' I ON,
llefltllllllnt
NO. 94-4510 CIVIL TERM
ORDER OJ!' CQ.!I.ln
ANI> NOW, thill . i It day of May, 1996, upon consideration of
PlainU f fe' Motion '1'0 Compel Disoovery and Impoee Sanctione, and of
Defendant'lI Anllwer to rule to Show Cause, a hearing ie SCHEDULED
for rrdtlay, May 31, 1996, at 3100 p.m., in Courtroom No.5,
Cllmb.l'lllnd County Courthouee, Carli(, le, penneyl vania.
BY THE COURT,
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J, Wee ley Olef, 'Jr:. , J.
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John F. Lyon., Ellq.
108-112 Walnut Street
P . O. DOll 963
Harrillbllrg, PA 17108
Attorney for Plaintiffs
Jllmell Clemonll
P.O. Dox 551
Dill.burg, PA 17019
Defendant, Pr.o Se
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3. The order provided that the Defendant oommsnoe the period
ot I8rvice ot his sentence at 9100 A.M., l"riday, June 14, 1996
unlels Detendant paid tho aforesai~ sum,
4. on June 13, 1996, Defendant delivered a oheck in the
amount ot Seven Hundred Twenty-Five Dollars ($72~,OO) to
Plaintiffs' law firm.
5, upon presentation of the check to the bank on June 14,
1996, Plaintiffs' counsel was advised there were inSUfficient sums
deposited into Defendant's bank account to cover the check tendered
by Defendant to purge himself of the contempt, CFulton Bank
letter, dated June 14, 1996, is attached hereto, marked as Exhibit
"8" and incorporated herein by reference),
6, The check wae deposited into Plaintiffs' escrow account
with the law firm of connelly, Reid & spade and has been returned
by the bank due to the insufficient funds in the account, (A copy
of the check is attached hereto and marked as Exhibit "C"),
7, Defendant has failed to purge himself of the contempt as
ordered by the Court and is subject to the sanotion of
incarceration,
WH!R!rOR!, Plaintiffs request your Honorable Court issue an
Order for Issuance of Attachment, Alternatively, Plaintiffs
requBst the court issue an order directing Defendant to present
v.
I IN T"~ COURT OF COHMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
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I CIVIL ACTION - LAW
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I 94-4610 CIVIL TERM
BRAD E. 1I0LLINGER and
D~BORAII HYERS WELSII,
Plaintiff"
JAMES M, CLEMONS,
t/d/b/a CLEMONS AND SONS
CONSTRUCTION,
Defendant
ORDER OF COURT
AND NOW, this 31st day of May, 1996, upon
oonsideration of the Pot it ion for Adjudioation of civil
contempt, and following a hearing at which the Defendant
admitted that he had not paid the ~um of $725,00 to Plaintiffs,
as required by the ardor of Court dated June 20, 1995, and at
which the Defendant indicated that he would be able to pay that
sum within 14 days of today's dato, tho Court finds that the
Defendant has intentionally, voluntarily, and willfully failed
to comply with the Order of Court, and he is consequently
adjudioated in oontempt, The sentence of the Court is that the
Defendant undergo imprisonamnt in the Cumberland county Prison
for a period of one month, The condition of purge with respect
to this sentenoe is that the Defendant pay the sum of $725,00 to
Plaintiffs through their counsel within 14 days of today's date,
since the Defendant may purge himself with
respect to the sentence imposed herein within 14 days of today's
date, commencement of sorvice of this sentence herein is
deferred until Friday, June 14, 1996, at 9:00 a,m" at whioh
time the Defendant shall present himself to the Cumberland
county Prison authorities without further Order of Court unless
he has paid the aforesaid sum,
All other relief requested by the Plaintiffs is
denied,
/.'1'//
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D, Mother lihall h<AvtI UlII child tOl' lwu-UUln1. U/,Il ut
..ch IIUIIII~U and "ather Bhall have liliu for one-third (1/3), To
calculata the length of each party" BUIlIIIIIr cu.tody period, the
partie. .hall count the daYII of th" child" BUII1II8r .chool vacation
period, begilU1ing with the Hnt day atter .011001 iQ out IIIld ending
with the last day before .clU)Ol begin., and divide the total into
thirds, r.ther shall have a period equal in length to one of the
thirda and Mother shall have a period equal in llll1!lth to two of ~.
(1) DurinQ the .UII1Il8r of 1991S Mother'. two-thirds
(2/3) of the BUIlIIIIIr ahall be .plit and taken, one part bef,~re and
another part .fter rather's, to a..ure time to rather betwllen JUly
20th and JUly 30th, 1996 beoaWle of .n exi.ting vacation .obadule,
(2) During the SUll1ll8r of 1997 and every .lJIIIMr
thereafter Mother sl~ll b. Qltitled to an uninterrupted block of time.
Father ahall have the option of taking up to ten (10/ day. of hi. one-
third (1/3) of \:he SI.llllJl.er vacation period iul118<iiately upon ooneluaion
of the achoal year, providAld, however, that he notifies Mother in
writing that he intends to exercille this option by Oecllll\ber lISt of the
preceding year, In such event the balance of Father'. one-third (1/3)
of the II\lIIIIIllr vaoation period shall be exercised aft,er Mother' s two-
thirds (2/3) of the sunlll8r period, Should Father not advise Mother. in
writing by December 1 of the preceding year of his intent to exercise
part of his SUlllll8r rights at the begilU1ing of the SUllUl8r, then
Mother'. two-thirds (2/3) of the SUll1Jlllr vacation period shall cClllllllnCe
immIdiately upon,tho conclusion of the school year,
3, Transportation I
A, Except as provided in paragraph 3,8, below Mother
shall pay for all of Jonathan's trip. fran Pennsylvania to Nevada for
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:I, 'rhe order provided that the De/.'endnnt oommenoo thlil per iod
or 11I!lrvl.ClI!I of hlA Ill:>ntnnnn nt '1I00 I\.M., Fridny, .1UM 14, 1'1')1\
unloPI!I Dofendnnt pl'lld tho nforoanld aum,
4. on .HIM 13, 1'l'lr., l)ofr>ndnnt do livered n check in the
Rmount of Bovan 1Illllllr"d 'l'wonty-I"iVLl ll11llaro ($72!loOO) to
plnintiffs' lAW firm,
5. upon prooentnt I.on of tho check to the pank on June 14,
1996, PlalntiffB' coullsel wns ndvised there were inoufrioient BumB
dopoaited into Defendnnt'B bAnk Account to cover the check tendo red
Py IJefondnnt to PUPlo hllllflOlf of tho contempt. (I"ulton J3ank
lot.tor, dntod ,1uno 14, 19<)6, is attnchod heroto, markod os Exhibit
"ll" And incorporntod heroin by roferonco).
6. The check waa dopoaitod into plAintiffs' escrow Recount
wIth tho lAW firm of connelly, Hold & spodo and hAS boen returned
by tho bAnl~ duo to tho insufficient funds in tho account. (1\ copy
of tho chock ia attnchnd hn.'oto nnd 11llH'kod os ExhibIt "C").
7. Ilnfenonnt. hns fIl11(>(1 to purge himself ot tho contempt: ap
ord(lI:o,\ by tho Court nnd J.a AUbJoct to tho sanction of
incnrcerntion.
WHElRflFORE, P1aintHts requoat your 1I0noraple court iSBuo on
ord(,," for IAAUl\nco of I\ttndllllont. I\lternotively, Plaintiffs
roquest the Court issuo an ordor directing Defendant to presont
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1lI':noll^" MY EllH WI':/,tllI,
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CUMIJI':Il"^tllJ I.;UUH'I'Y, I'WIIIIlYI,v^" I ^
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t/rI/h/n CJ,F:MOtlEl 1.tlll flOtlfl
cotlfl'l'IlUC'I' lOti,
Llefelldnnt:
94-4510 CIVIL TERM
PI!IlI':II .P,...~qlJlI'I'
^tln NOW, tlllrl lInt dllY of Mny, 1996, upon
conBidel"at,ion of tho I'etl.tion tor I\dJudication of civil
cOIlt:ompt, nlld fa) lowing A hondn<j tll: which tho Dofolldant:
admitted that he had not pnid tho aUIll of $725.00 1-0 plaint:iffs,
an requirod hy tho 0\"<101" of Court r1l\tod Juno 20, 1995, and at
which the Llofondnnt indicllted thnt ho would bo nblo to pny thAt
Rum wlt-hin ),1 rlnYA of torllly'A dnt:o, tho COUI-t tilldn that tho
J)eflmdnnt hAa intontJonnlly, vo1untnd ly, and willfully fllilod
to comply with t111l Onlet." of COlll"t, And ho is consoquently
ndjudicntorl J n contolllpt. 'I'ho A(lntonc<! of tho COUl't io thAt I:h(l
Ilofonrlnnt UIl(IC>I'go impd "on"mnt.. I n tho Cumbol'land Cllullty pd 0011
for n por!nd of on" month, 'l'ho condition of purgo with rospoct
to this sontnnco in thAt. tho JJofondnnt. pay tho flUIll of $725.00 to
l')nlnt:iffs throllgh th"lr coullnol wi thin 14 days of today'a doto.
Ilinco tho [)orondAnt mny pUI-go himsolf with
respect to tho AontonCC> impoAc>rI hOI'oin wJthln 14 daYB at todo~"/.l
dnte, commoncomont of AClrv\co of thin Elontonco horoln iB
rleforrl1Clllllt.11 Frlrlay, ,JUIlO 14, 19<)(" nt 9tOO n.m., ot which
t,lmn tho JJl"fondnnt: nh,~I) prorlllnt: hil1\Bolf to tho Cumborland
County PrlAon rluthol-itil1A without furthor Onlo," of Court unlootl
ho hno pAir' tho AfOl'OrlA id (!lllll.
1\\1 nthnr 1',,11<'1' rnquostorl by tho PlAintiffs in
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,. Pcfcndl\J\t has not requested an eKtenslon of time and, based upon his Ilrlor refU5111
tQ cooperate, Plaintiffs believe tllBt nllemllls 10 resolve the discovery Impasse would prove
fruitless,
6, Defendant Is proceeding flro J'~ In Ihls maller,
7. Illalnt!f"s have Incurred and will Incur addltloJ1ll1 eKpcnse Including counsel fees
and costs perlalning to the prepnnllion of this Motion ns wellns nllendlng the henrlng resulting
from Defendnnt's unwillingness to eOlllport with Ihe Inwful rellulrement lhnt he respond 10
Plaintiffs' discovery requeslS.
8, ^s set forth In the Motion for Civil Contempt Included herein, Defendant has
failed 10 fully comply with prior Court Orders.
WllElUWOltE, Plaintiffs request this Honorable Courl enler an Order compelling
Defendant to respond to Plaintiffs' discovery requests perllllnlng to all malerlal facts and Issues
In controversy or as to such mailers which may lend to the discovery of relevant evidence or
Information ntld/or enler such other Orders In lhe nature of sanctions as follows:
(II) Enter nn Order compelling Defendant 10 resJlond forthwith 10 Plaintiffs'
discovery requests; ,
(b) Enter 011 Order attnchlng the costs for rc.1sonalJlc eKpenses Incurred,
Including attorney's fees Incurred by Plnlnllffs In relallon to this MOllon;
(e) Enter judgmenl In amoulll of cosls Including re.1sonable allorney's fees
awarded by the Court as requested herein against Defendant;
5. Defendant hili not requested M eKtenslon oftlme Md, based upon his prior refusal
to cooperate, Phllnllffs believe Ihal allempls 10 resolve Ihe discovery Impasse would prove
fruhless.
6, Defendant is proceeding {1m ~'" In this matter.
7. Plaintiffs have Incurred and will Incur additional expense including counsel fees
and cosls pertaining to Ihe preparation of this Motion as well as attending Ihe hearing resulllng
from Defendanl's unwillingness to comport with the lawful requirement that he respond to
Plaintiffs' discovery requests.
8, As set forlh In the Motion for Civil Contempt included herein, Defendanl has
failed to fully comply with prior Court Orders.
WIlEREI~ORE. Plaintiffs request this Honorable Court enter an Order compelling
Defendant to respond to Plaintiffs' discovery requests pertaining to all material facts and issues
In cootroversy or as to such matters which may Ir..1d to the discovery of relevant evidence or
Information and/or enter such other Orders in the nature of sanctions as follows:
(a) Enter an Order compelling Defendant to respond forthwith 10 Plaintiffs'
discovery requests;
(b) Enter an Order attaChing the costs for reasonable expenses incurred,
including attorney's fees incurred by Plaintiffs In relation to this Motion;
(c) Enter judgment in amount of costs Including reasonable attorney's fees
awarded by Ihe Court as requested herein against Defendant;
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16, Specify each and every contract Item which you admit was not
completed by your, your employees or your subcontractors as or
the date you last worked at the l)roperty,
ANSWER:
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notes, diaries, lOlls, 5lntlstlcs, letters, lelClgmll1~, mlnutcs, contracls, reports, studies, checks,
sllllelllents, !'ecelpts, rcturns, sUlllmaries, pamphlets, books, prospectuses,lnter,ofllee and
lnlm-ofl1ce conllnunlcntlons, offers, notnlions of nny sort of conversations, telephone calls,
meetings or other cOl11l11unlcntions, bulletins, printed nmtter, cOll1puter printouts, teletypes,
invoices, workshect~, and all dmfts, allemtlons, modifications, changes and nmcndmcnls of any
of the foregoing), graphic or nural records llI' represent,lllons of nny kind (including, without
limitation, photographs, charts, schedulcs, drawings, vidco tapc, rccordlngs, motion pictures),
electronic, ll1er.hanlcal 01' electric rccords or rcpresentutlons of {lilY kind (including, without
limitation, tnpes, cassettes, discs, recordings), and computer slomge ,kwlces or data 1'1'0111 which
Informntlon can be obtained,
2, The terlllS l\lLdQ~!JJ~)]Jj, ~JL.Ilm:lJlIlC11J, 01' ~U!ll.llevery docul11ent means
every document as above defined known to Defendant, and every such document which can be
located or discovered by reasonably dillgl'nt efforts,
3. ^s used herein, l.1l,'t'\!.Hl shall Include all natural persons, corpol'l\tlons,
partnerships, unlncorporatl'd nssoclatlons, governments, govcl'l1nwntnl ngencies, 01' uny other
entity,
4. ^s used herein, ~.lrill1 shall l11ean the written contract bctIVeen Plaintiffs nnd
Defendant, originally dated October 28, 1993, for th,; remodeling of resldcntial real property
known as 2850 rord FArm Road, Ml'cbanlcshurg, I.ower ^lIen Township, Cumberlnnd County,
I'cnnsylvanla,
,
~, As used herein, ro.oJ:WlllWdcncP shnllmean MY documcnt sent by one or more
person to one or more other pcrson,
6, As used herein, W1d and or shall mean 1UlllLw:, unless the conte"t requires
olherwise.
7, Conll11unil:Jlililll IllClIns nny omlor wrlllclI stntcmcllt
convcycd by onc pcrson to lInolhcr person, nny MlIlcmcnt 1I111dll by onll person in the presencc
of OIlC or morc olhcr pcrsons lllld lIlIY documcnt deHvercd by or for onc persoll to allY othllr
person,
8, WhclI II documcnt Is requesled hercln, Defendant shaH produce lhe origlnnl of
snch documcnt, if IIvnilnhlc, lllld Ihe foHowing:
(n) every copy of l'ach docullllnt which is 1I0t an ~ dupHcatll of thc documcllt
which Is produccd;
(b) every copy of cach documcnl which has allY wrillng, I1gurc, nOlallon,
nnnotlllloll or Ihe Hkll on il;
(c) all drafts of each documenl;
(d) all nttnchnwnls to or encloslll'cs with each doculllcnt; ond
(e) every document refcrred to in such documcnt jf ovnilable to Plaintiff,
9, All words of gcnder shall includc thc fellllnlnc gender thcrcof, e.g. his shall
Include her, ns the context may rcquirc,
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1. Copies of nny nnd 1111 wrlllcn conlmcls between Pllllntlffs nnd Defendant,
2, Copies of nny nnd nil wrltlngs or documents modifying or IImendlnl\ lhe signed
written conlrnctbetwcen lhe I'lnlntlffs nnd Defcndant.
3, Copies of IUlY IInd 1111 conslru~llon schedules rc\1I1lve tIlthI' resldenllal construction
and/or remodeHng contmcl. which forms the lmsls of this IItlgntlon,
4, Copies of IIny l\Ild 1111 employee llme,sheets relative 10 the residential conslructlon
and/or remodeling contract which forms thc basis of 1I\ls litigation,
5, Copies of IIny IInd nlllnvolccs or bills fromllny suppliers, materllllmen, nnd/or
subcontmctor5 rclilllvc to the resldcnllill construction lind/or remodeling contmct which forms
the basis of this litigation.
6, Caples of any IUld 1111 wrllll~n evidence of paymcnt scheduks relative to the
rcsldcntlal constructlll1l lind/or rl'modcllng contract which forl11s thc hasls of this IIllgatlon,
7. Copics of IIny and 1111 writings vcrlfylng paymcnts madc to Ill'fendant by Plaintiffs
rl'lallvc to th..' n.'sldcllll:d constl'llctllJn IlIlll/ol' rcmodellng ('ontract whkh 1'01'111> the basis of this
litigation.
8. Copies of any IInd 1111 writings verifying receipts of paymcnts by Defendant from
Plaintiffs relative to thc rcsldentlal (:onstTlI('llon and/or rl'l11odellng c(Jntract which forms the
basis of this Htlgallon,
9, Copies of IIny and all writings regarding any phasc of work betIVeen Plaintiffs IInd
Defendant relative to the rcsldcntlal construction lind/or rcmodcllng contract which forms thc
basis of this Htlgatlon,
to, Caples of any nolcs, mcmoranda, estimatcs, rcports 01' othcr documents pcrtalnlng
to any Inspcetion or rcpall's made hy you or by IInyone on your behalf regarding the performance
of any rcpalrs, corrections or completion of any work donc by you 01' any subcontractor to the
propcrty located at 2850 Ford FlIrI1l1~ond, Mechlln\cshurg, l.owcr Allcn Township, Cumberland
County, Pcnnsylvanla pmsuant 10 thc Contract which forms the basis or Ihls IIligatlon.
. ..........,'. .............'......"".......,.."-,.....",,..."
.
1n Ti;1e Court cT C.:mmO:1 plac:s or C:.Jr,~:.:.-.m,i=nd c.:.:lu:-;",'y, Pannsylve:nid
Jilmep M. c1omollfl
neborllh Myonl Wo 1 uh
'IS.
t/d/b/II Clolllone 11Ild HOIlIl COl1lltructloll
,
Brad lIo11J.n~lor &
~o. _
~4.4~lO civil Term
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:-fow,
l\ugul3t 11, 1994
~9_ I. S~'.F OF C~~l:S:E:il1.A.'fD COl:..~'l'Y, ?A., l!o
b~ r!c;:N= this Sb.=t! 01
York
ColW1I:T 10 t:."llIC\l14 :!:is Writ,
:!::s d.=pU~t!.oll btl.:1t ~ ~l ~ ~ucn c.:d :Uk ot the l'tll!::::H.
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Afiida.vit or Semc.=s
:he ~cl:in C'olllj,Jlalnt In CIVIl ^ctlOI1
'lPOI1
James M. C'lell19ns, t/d/b/a Clemons ~ Sons C'onstructlon
"
.l 4 Sheffield Ilrlvld, plIlsburq, York C'ountY',..!'ennaylvanln 1,7019
'or :::u:d!:1i to defendant's wi.fe, .Ian <.'j,)lIpns
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true and attested
cpy ot ee or.t~C'ol1lPlalnt
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o.nd ~ bo\'.':I :0 -hill'
the .:::::e::.a t.'"tc:e::t.
So IlJ:l.lWe::I,
NOT~I\IAL 8E~
WNJ.IS W. RHINe, NolMIy Public
YOlIo. YOIIl COlIllly, p..naytv.nlA
My e<<nnj'likln EJp"" Ma,dl'I~, ,~~s
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Sworn :l.Od rJ be:-:be-:i before
iJ! ~ ';i; ~~l)~ Allijllst
11[1(/ ( I ;/1. f. II Jl (
19..'lL
COSTS
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30.24
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3, Dofendant falled to appear for eKaminatlon under oath by Plalntiff on MlU'Ch 9,
1995 U IICheduled,
4. On or about MlU'Ch 10, 1995, counllel for Plaintiffs Ilerved WI wWtlonal Notice
of Deposition upon DefendWlt rescheduling the deposition for March 22, 1995. (A copy of the
Notice of Deposition Is allached hereto as EKhlbit "B" and incorporated herein by reference
therelo).
5. Defendant failed to appear for the scheduled deposition on March 22, 1995.
6. The mailers sought to be discovered are releVlllll or will lead to the discovery of
relevWlt evidence or Information,
7, Defendant has procecded [1m se in this maller,
8. Plaintiffs have incurred arldltional CKllense In terms of counsel fees and cosls
pertaining 10 stenogmphlc services as a result of Defendant's unwUllngness to comport with the
lawful re.qulrementthat he submit 10 eKamination under oath regarding the facts WId Issues in
this litigation.
9. Defendwlt has proceeded [1m se and has l1Ied a responsive pleading to the
allegations of Plaintiffs' Complaint In the nature of general denials contrary 10 the Rules of Civil
Procedure.
10, DefendWlt falls to mise any substantive dcfcnse to the allegations cont.alned in
Plaintiffs' Complaint in his responsive pleading.
z
BRAD I. HOLLXHQIR an4
DIDORAK HVIRS WILSH,
Plaintiff.
XN TNI COURT or OOKMON PLIAS
OUMBERLAND COUNTY, peNNSVLVANIA
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NO. '.-.510 CIVIL TElRH
JANIS H. CLIKOHS,
t/4/b/a OLBHOHB AND BONB
OONBTRUCTION,
Dat8n4ant
CIVIL ACTION - LAW
"'0
&f
HgTIoe or DEPOSITION
w
TO. James M. Clemons t/d/p/a
Clemons "nd sons, Ino.
P.O. Box 551
Dillsburq, PA 17019
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VI
PLIAse TAKE NOTICEl, that pursuant to Pa. R.C.P. No. 4007.1,
Plaintiffs, Brad E. Hollinger and Deporllh Myers Welsh, will take
the deposition of James M. Clemons, in the apove action, upon oral
examination, for use at trial, pefore a person authorized to render
an oath, on Wednesday, March 22, 1995, at 2130 O'clock P.M, at the
offices of Connelly, Reid & Spade, located at 108-112 Walnut
street, Harrisburg, Pennsylvania, on all matters not privileged
which are relevant and material to the issues and supject matter
involved ill the apove captioned action.
CONNELLY, REID, & SPADE
Dl;\tel
17108
. ,
II. Admit tl'ld,
l2~ UltniHIl!.
i~. Pltnh~d.
1'1. Dllnilllcl.
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16. f\l:tmit tlllli.
17. JJmllillld.
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~IJ.. No y'e'r.Jwnua 1'13quired,
:21. DllI1 hId.
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2~. Panied il\5 IlSto\\tad.
24, Dlilnlllld,
2e'l. Danied.
21;;, Nr.. rasp,"naa required,
':a. Admitted in poJrt and denied in part. It ill admitted
that the Wl'ittan ':.~nt.ra,:t pr,;,vidaa for reduction of
.:'~ntrao:t laumG in till; ,3mount ,~f ,UOI) par day f,;,r
un':'~mplat;ed w(wli. How..'Vel', It ilS dl~nl'Hj that 013':' 4,
1'~'3'1 was th'1 datu afb?!' wll1<:h ',ums llIay be dllldu.:tllld fc>l'
un':'~mpleted w..)rl,.
28. Admitted in part Mlr1 thmled In part. It ill admitt.d
th.lt the t:.ompletk,n dah] Wi\!'; m,)veel f.:orw,.rd one week
by ,)1',11 .1grlll~mlJnt. It i'l (t1~1'l i<lel that tile ':'~mplat i.;,n
data wan moved ol',.lly from 000:. 4, 1'394.
',213.. Den tl~d a'~ ~:5 tat; l-lfd.
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I.., 20 1995
COHHHL Y, ~110 ~HO 6P~Ul
Clllnl L.dpln ~~III~1 9/,0173
~LL OMI6
0~1I
...................,.................................................................................................................
~ICIIVlo I~OH I PAID '0
IxpLAHAJlOH
CHI. I.......... Q EN I R ~ L ..........1 ILD I.........,. U I' ..........1
IHV' RlCIlp'6 01606 /115 IHV UtIIPII DIU' mml
.............................................................................'...........................................................
CLIIH', 1767' HOLLIHOl~ (6), URAD
HAIIUI 9',0173 REI ConlrlH dllpull/Cllmonl & 50nl.
Jul 21 94 LAWYI~I 6 0,30 Hrl X 125,00
!Illphonl ,onf"r"n," wllh ooup Horrow I'll I.tlmut.
Ind dol.'tlvl work.
Jul 2994 LAWYIRI 6 1.00 Hr. X 125.00
Collllrll'" wllh JAm.. 5podl, foqulrl.
Aup 03 94 L~W'I~1 6 0.20 Hrl X 125,00
'"l"phon" 'onllrlnel with Olbbll WIllh,
Aug 03 94 LAWYIRI 6 0,20 Hrl X 125,00
Tel,phon, con',r.nel with D.bbl. ~.l.h.
AUi 03 94 L~WYI~I ~ 1.00 Hrl X 125.00
ooe",,"nl pr'po"lllonl COI1lllllnl.
Rug 04 94 IAWYI~1 6 0.20 H..I X 125.00
!ollphon. eonflrln" wllh Chrl. Houllon I'll clomonl,
Aug 08 94 LAWYI~I 6 0.40 lira X 125.00
~lvl," Compl.lnt.
Rug 09 94 LAWYI~( 6 0,60 1'..1 X 125.00
~Ivlll Con~lllnl (.3)1 Ind, Llttlr to ,ll.nll I'll
c""",lllnt (,3).
Rug 10 94
pholo,opl.1 C""",lAlnl.
Rug 109. LAWYER I 6 0.70 Hrl X 125.00
!ollphonl eonhrlncl with olb W.l.h 1'01 Ching.. 10
c""",lllnt (.3)f Ind, Im.nd Complalnl (.4).
Rug II 94 CU~BIRLRHD CDUHIY pROIHONOIRRY ',084
IILIHO lIE fOR COMpLAIHI
Rug" 94 CUMDIRL~ND CDUHIY SlilRlff "085
fIE lOR SERVICE 0/ COMPLAIHI
Rug " 94 LA~VlRI 6 0.70 Ii..s X 125.00
'''Ava\ 10 Corllol. to fll. Complolnt (.5)1 Ind,
lltllr 10 cllont (.2).
~ug 31 94 BILLIHO OH IHVOICI 13227
fll5 662.50 015DS 162.75
sop 06 94 LR~YERI 6 0,20 Ii..s X 125.00
!ollphon. ,onll..onet Wllh Dobra Wol.h 1"1 StOIUI 01
larvl," And Holl," 01 M.,hanl'l Llln.
s.p 08 94 IRWYIRI 6 0.20 H..a X 125.00
T,l.phone conf.renr.. with Chris Houston r'l StatuI
Ind mlltlng.
501' 1294 07126 .32.76
Clllnl PayIng Bill
Sop 15 94 IRWIERI 6 0.30 H..a X '25.00
Tll.phon, conf,ron,. with Doborah Wolsh r'l
cont.r.nc. with Chrlltoph.r Houston, Esquire,
pOlllbll criminal 'horgo..
Sop 16 94 LRWYIRI 6 0.20 Hrl X 125.00
Telephone cont.r.nc. with Christopher Houston,
faqulr..
Sop 19 94 LA~IERI 6 0.50 H..I X 125.00
Document preparatlonl Notlcl of Claim to Contractor.
RUp, L~WflRl 6' lohn " Lyonl
J7.~0 um
125,00 m27
15.00 um
25,00 m27
m,oo um
15.00 um
50,00 um
75,00 llm
17.25 llU7
81.50 13227
".~ 13np
100,00 1322P
81.50 llU7
0,00 llU7
25.00 134JO
25,00 13430
J7.l0 13430
25,00 '3430
PLAlNTIF1"8
EXHIBIT
v'l, .~
~IZ
62.50 13430
pm
2
lUll 20 1995
CONNILLY, ~EID AND SPADE
ClI."t Lod~"'1 ~ATli~, 91,0171
All DATU
bAil
................................................................................................................................1.....
IICIIVID 110M I PAID TO
I~PLANAIION
CHI. I.......... Q I N ERA L ..........1 YLD I........, , . U . , ..........1
INV' ~ECIIPII 01606 '1IIINV"IClIPII 01111 IALANCI
......................................................................................................................................
lip 20 94 LA~n~1 6 0.10 NrI ~ 125,00
L.II.r to .11."16 rfl Cl....." An.w.r,
I.p 30 94 .,LLINO ON INVOICl 11410
/Ill 212.50
Nov 21 94 257 'I004,9~
CII.nt Payln~ Bill
Nov 21 94 . 19.15
OVl~PAY~lNI O' .,LL
I.b II 91 LA~YE~I 6 0.40 Nr. ~ 121.00
hl.""on. .onflron" Wllh ollont ro, Statu. (,211
.nd, hl."".n. .on"ron.. with Chrl. Hou.to" (.2).
I.b 16 95 LA~YlR' 6 0.10 Hr. K 121,00
o.,,,,,,,,t prop".tl.n, Notl" ., D,pOlltlo" (,3>1
.nd, 1.11" t. ~r. CI"""". rei Oop..ltlo" (.2).
I.b 28 91 .,LL,NO ON INVOICI 14374
',15 "2,10 RCPIS '9.1\
HOI' 02 91 LA~Ylftl 6 0.20 HII K 125.00
hi."".". """ro",, with Chrl. Ifouut." rol
Arbl trlt lun tntlman)',
Hor 03 91 LA~YERI 6 0.30 Hr. ~ 121.00
L.ttor to ,1I."to III E..I. I 10'" Arbltrotlo",
Har 16 91 LA~Ylll 6 0.30 Hr. K 121.00
hl.""on. .onlor."" with Oob.roh ~ol.h rOl
Arbl trot Ion tilt lmony ,,\<1 prool 0' domoun
Har 17 91 IA~YlR, 6 0.40 Hr. K 125.00
L'II" to .Ihnt (.211 .nd, hl.phon. ..nfor.n..
with Chrl. Hou.ton (.21,
Har 21 95 LA~YlR' 6 0,20 Hr. ~ 125.00
lIlephone confel',nce wi th Chr II Houston, hqul reI
Hor 21 95 LA~YER( 6 2.10 Hr. ~ 125.00
ProparlElon lor O.pO,III." (2.0)1 and, III.phon.
eon',r,nc, with ~Ilent (,5).
Hor 23 91 LAWYER, 6 0,30 Hro K 0.00
III."".n. .on'oron.. Wllh Chrl. Hou,t.n, Ilqulll re'
Arbltr.tlon r..ulto.
Hor II 95 BILLINO OH INVOICE '4672
IUS 487.10
Apr 06 95 GUOER AND LORIA REPORTlNO SERVICE 11963
AITINDANCl 10M 3/22/95 CLEHONS DEPOSITION
Apr 19 95 LA~YER' 6 0,30 Hr. ~ 0.00
Tltephone conf.r.nc, with Court Admlnfltrotor'l
0111...
Apr 19 95 LAWYER' 6 0.30 Nr. ~ 125.00
Docl,J'I'Ifnt prtporotlonf Order end Rul. to Show Couse.
Apr 21 91 IAWYlR, 6 0.20 1111 Y 125.00
Lett.r to Jlmes Clemons,
Apr 24 95 LA~YER( 6 0.20 Hr. ~ 125.00
Tll.phon. conhr.nct with Judg. Olerll office.
Apr 24 91 LA~YER( 6 0.80 Hr. K 121,00
I. Carll.l. "' 1I1lnu of Hotlon to C""",.I.
37.50 UUO
0,00
uuo
um
~0,00 14374
62.10 14374
0,00
14174
11,00 11672
37.10 14672
37.10 '4672
~o,OO 14672
2~ .00 U672
m,IO '4672
0,00 14672
0.00
14672
50.00
14862
0,00 14862
37.10 14862
21.00 14862
21,00 14862
100,00 14862
.0LLIIIClIR an4
MYlRI WILl.,
PlaiuUU.
III Tal OOURT or OONHON .1.111
CUKBIRL~D COUNTY, 'INII8VLV~ll
v.
110. .4-4510 OIVIL TIRH
JlKll N. CLIKOIII,
t/4/b/. OLIKO..I ~D 10111
OOIlITRUOTIOII,
Ddendant
,,';',
CIVIL lOTION - LAW,'~.,
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HOTIC. or DIPOSITIgH
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TOI James M. Clemons t/d/b/a
Clemons and Bons Construotion
4 Bheftield Prive
Dillsburg, PA 17019
IILIAI. TAX' MOTICI, that pursuallt to Pa. R. C. P. No. 4007.1,
Plaintiffs, Brad E. Hollinger and Oeporah Myers Welsh, will take
the deposition of James M. Clemons, in the above action, upon oral
examination, fOl: upe at trial, pefore a person authorized to render
an oath, on Thursday, March 9, 1995, at 2130 O'clock P.M. at the
oftioes o/.' connelly, Reid & Spade, located at 108-112 Walnut
Btreet, Harrisburg, Pennsylvania, on all matters not privileged
Which are relevant and material to the issues and subject matter
involved in the above captioned action.
~
,
Pateld -It. 9.r-
PI.AINTlFP8
EXHIBIT
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It - l' .'i'" ~
BYI
J
A t ey for PI intiffs
108 - 112 Walnut
P.O. Box 963
Harrisburg PA 17108
(717) 238-4776
(717) 238-4793 Telecopier
Pa. I.D. No. 23859
JAMIS M. CLIMONS,
t/d/b/a CLIMONS AND SONS
CONSTRUCTION,
Defendant
. IN THI COURT or COKMON PLIAS or
. CUMBIRLAND COUNTY, PINNSYLVANIA
I
.
. NO. 94.4810 CIVIL TBRN
.
I
I
I
I CIVIL ACTION . LAW
BRAD I. HOLLINOIR and
DI.ORAB MYIRS WlLIH,
PlaintUfI
v.
~N RI. PLAINTIFFS' MOTION TO COMPeL DISCOVeRY
AND ORDeR FOR SANCTIONS
!JJmIUF COURT
AND NOW, thia ~Oth day of June, 1995, upon
conaideraUon of the Plaintifh' Motion To Compel Diacovery and
Order for sanotiona, and following a hearing which the Defendant
did not attend, the motion i. granted, and it ia ordered and
directed that the Defendant pay the .um of $7~5.00 to
Plaintiff.' oounael for legal fee. and stenographic feea
inourred a. a reault of Defendant'. failure to appear for
depo.ition., and the Defendant i. direoted to appear for a
depo.ition at the office. of Connelly, Reid & Spade at 108.l1~
Walnut Street, Harriaburg, Pennsylvania, on Wedne.day, July 1~,
1995, at ~130 p.m.
~he Defendant is notified by thi. Order that a
failure to oomply with the direction. herein will rr..ult in a
hearing on oontempt of Court and auoh other remedie. a. the
Plaintiff. may reque.t, inoluding the entry of judgment againat
Defendant.
By the Court,
~
We. ley Ole ,
,l.YQU:.'..,CHOOIIN'. UHI'ID~'I.Llal.J. ""'"
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PAGE IOL
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IlIAD ' .. 'IIOLLUIIIII and
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iI K., CLIICONI,
t/. . OLIMON. AND SONS
COllI varloN,
'\/"(' Defendant
11""
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',1 :
IN Thl COURT 0' COHMON PLIAS 0'
CUMBIR~ COUNTY, PINN.YLVANIA
NO. 94-4510 CIVIL TIRH
CIVIL ACTION . LAW
"h~~" :IN Ill. PLAINTIF'S' MOTION TO COMPEL DISCOVIRY
,","" '" , AND ORDIR FOR SANCTIONS
r.'I' ,
,',' ,I
QJWJR_JU!...s'9.1./M
~ NOW, thi. ~Oth day of June, 1995, upon
oOD.ideration of the Plaintiff.' Motion To Compel Di.oovery and
Orde~ for Sanation., and following a haaring whioh the Defendant
did not attend, the motion i. granted, and it i. ordered and
di~.at.d that the Defendant pay the .um of $7~5.00 to
Plaintiff.' ooun..l for legal fee. and .tenographio t...
inourr.d a. a re.ult of Defendant's failure to appear for
depo.ition., and the Defendant is direot.d to appear for a
depo.ition at the offioe. of Connelly, Reid & Spade at 108-112
Walnut Stre.t, Harri.burg, Pennsylvania, on Wednesday, July 12,
1996, at 2.30 p.m.
'.,
The Defendant is notified by this Order that a
.
failure to oomply with the direotions herein will result in a
h.aring on oontempt of Court and suoh other remedies a. the
PlaiDtiff. may reque.t, including the entry of judgment against
I
,t',
Dehlldant.
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cIllH'I'n'leM'~; O~' tlU:RVIC&:
I he~.by c~~tl~y that tQday 1 ~Qtvud ~ ttUR and OQf~ect copy
of the fOfflcJoln<J Mlltllln flit f1[lIu:I.IJ r~"J lef, by hand
dflllve~ln~ the suma to the fulluwln~~
cunnully, Illlld " tlpildll
lOO-lll W,llnul. nl.rulIt
HUfflsbUtq, VA 17100
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I XN TH~ COURT or cOMMO" PLIAS
I OUKB~RLAND OOUNTY, PINNSYLVIHXA
,
,
, NO. 84-4510 OIVIL TIRK
,
,
,
,
I CIVIL ACTION - LAW
BRAD I, HO~~XHOIR and
DIBoaAX KVlal WILIH,
Plaint:UfI
JAMIS K. CLIMONS,
t:/d/b/a CLIMONS AND SONI
OO"ITRUCTIO",
Defendant:
AHIWIR T~ RUL! TO SH~AY>>~PECIA~ RELIEF SHCULD
NOT DI OR~ "ND MO'UQN FORJlM~TIONS
COMIS NOW/ plaintiffs, by and through their attorneys/
Connelly, Reid & Spade, by John F. Lyons, Esquire, and respeotfully
represents and avers as followst
1. Admitted in par.t and denied in part. It is speoifically
denied that John F. Lyons/ Esquire, or any other member of the firm
of connelly / Reid & Spade is acting unpL"ofessionally or has
violated any oanon of ethics in representing plaintiffs in their
breach of contract action against Defendant. By way of furthor
denial, tho matter in which the firm of Connelly, Reid & Spade, its
members or associates, may have represented the Defendant/
terminated on or about June 29, 1993.
There is no substantial
relationship between the matter for which Defendant sought
representation or consulted with members or assooiates of the firm
of Connelly, Reid & Spade and the current matter pending before
this Court which involves a breach of contract action arising out
of a oontract entered into between the parties on October 31/ 1993.
The repr..entat:ion was very limited in time and soope ot employment
and involved oustody issues, 'l'he Defendant 's .sllegBtion that the
tirm reoeived "hundreds of pages ot sensitive information regarding
the business and personal Affairs ot Ootondant" is speoifically
denied. It is admitted information was received but it is denied
that Buoh information oonetituted hundreds of pagee ar that it was
sensitive or oonfidential since it appears that such information
was disolosed in public proceedings. With agreement of the
Defendant, representation in terms ot ~imo and scope of employment
walt extremely limited, ae set forth in Exhibit "A". By way of
further dlil/lia 1, the averments of Pla intHfs' New Matter are
inoorporated herein by reference.
2. Admitted in part and denied in part. It is admittod that
reports authored by Allen R. Miller, Ph.D and Janet S. Bliss, M.S.
were reoeived from Defendant. After review of the file, there was
no report from stanley E. Schneider, Ed.O, and such allegation is
denied. The referenced reports were not related to any matter
~nvolving representation of Defendant by the law firm or its
assooiates but appear to have been prepared for a public proceeding
involving other persons. The reports conta in no information
substantially or materially related to any issue in the instant
litigation.
3. Denied. The law firm provided advice and assistanoe
with regard to one (1) matter only BS shown on the billing attaohed
2
by Detendant to his Petition as enolosure 11. The advioe and
assistanoe was very narrow in soope and time by agreement of all
parties to suoh matter. The matter was a custody dispute in whioh
Defendant represented himself nLQ ~ but requested limited
assistanoe. The soope of representation is confirmed by Exhibit 1
attached hereto. By way of further denial, the averments of the
New Matter set forth hereinafter are incorporated by referenoe.
4. Denied. Defendant's opinion that there is a conflict of
interest preventing representation is erroneous. There is no
material or substantial relationship b~tween the matter for which
Defendant may have sought representation or advice and the ourrent
proceeding pending before this Court. Defendant fails to plead any
substantial or material relationship between the matters for which
he sought representation or counsel and the instant matter.
Rather, Defendant raises vague concluaory allegations that
information received plilrtaining to psychological evaluation and
testing results involve matters pertaining to a breach of written
contract for the remodeling of Plaintiffs' residential real estate.
PlaintiffS, after discussion with their counsel, decided to
continue with the services of the firm of Connelly, Reid & Spade,
and John F. Lyons, Esquire specifically.
5. Admitted in part, denied in part. It is admitted that
Defendant advised John F. Lyons, Esquire of his opinion that there
was a conflict of interest. It is denied there was a discussion
3
regarding "seneitive information" or the oontents of any file with
the firm. Rather, as set forth in the attached Exhibit "B" hereto,
Defendant was advised of his right to tile 0 Motion with this
court, whioh Defendant has done, to determine whether, in faot, the
law firm of Connelly, Reid & Spade should be disqualified from
oontinuing to represent Plaintiffs in this matter.
6. Denied. After reasonable investigation, the plaintiffs
are without sufficient information to form a beli~f as to the truth
of the avsrment. Speoifically, Plaintiffs are without any
information regarding any oonversation which James Miller, Esquire
may hove had with Defendant regarding his rationale for refusing to
represent Defendant and proof thereof is demanded at the hearing on
this matter. It i~ admitted that James Miller, Esquire, while an
assooiate with the law firm, did not handle any of the Plaintiffs'
affairs.
WHeREFORe, Plaintiffs request your Honorable Court deny the
Defendant's Request for Special Relief and impose counsel fees and
oosts, and such other sanctions as may be deemed appropriate.
MOTION FOR SANCTIONS
7. The instant matter is a breach of contract aotion
involving a written contract between Plaintiffs and Defendant for
the remodeling of Plaintiffs' residential real estate by Defendant.
4
8. on July 18, 199~ I Defendant waa plaoed under oath and
dlpo.ed regarding the faots of the inatant breach of oontraot
aotion.
9. During the oourae at the deposition, Defendant admitted
r8aeiving payment from Plaintiffs cf funds to pay the olaim af
Defendant's subcontractor, EBsis & 60ns, Inc., in the amount of
Nine Thousand Four Hundred Four Dollors ($9,404.00).
10. During the course of the depoBition, Defendant admitted
that he had not paid any of the monies to EssiB & Sana, Inc.
despite being requested to do so by Plaintiffs.
11. During the course of the deposition, Defendant admitted
that he has not repaid any of the monies received from plaintiffs
for the Esaia & sons, Inc. claim to Plaintiffs.
12. During the course of the deposition, Defendant admitted
that he did not complete the contract on or before December 16,
1993.
13. During the course of the deposition and in a separate
verified pleading, Defendant has admitted liability for delay
damages under the contract in the amount of Fourteen Thollsand Five
Hundred Dollars ($14,500.00). (The verified pleading ia attached
hereto, marked as Exhibit "C", and incorporated herein by
referenoe) .
5
14. In his responsive pleading to the complaint of
Plaintiffs, Defendant has averred no cognizable derense to
Plaintiffs' olaim for breaoh and subsequent damages.
115. Defendant has not pa id the attorney's hes and oosts
ordered to be paid by this Court's order of June 20, 1995.
16. Defendant has interposed this mot ion for. the sole purpose
of delay and to harass and vex the Plaintiffs.
17. Plaintiffs request additional sanctions in the form of
attorney's fees and costs incurred in defending against this
frivolous motion.
18. Plaintiffs request this Court impoi3e additional sanctions
against Defendant in the nature Ofl
(a) Counsel fees ~nd costs incurred in defending
Defendant's Motion;
(b) Partial judgment against Defendant for the sum of
Nine Thousand Four Hundred Four Dollars ($9,404.00) which is
admittedly owed by Defendant;
(c) Partial judgment against Defendant for the sum of
Fourteen Thousand Five Hundred Dollars ($14,500.00) representing
oontracted for delay damages which Defendant also admits are due;
and,
(d) Interest from December 16, 1993 on the partial
judgment for the sum of Nine Thousand Four Hundred Four Dollars
($9,404.00) .
6
ESSIS , SONS, INC, , t IN THE COURT OF COMMON PLEAS OF
Plalnt:1 ff I CUMBERLAND COUNTY, PENNSYLVANIA
t
V r 94 - 4403 CIVIL 'rERM
t
JAMES M. CLEMONS, dba I
CLEMONS & SONS CONSTRUCTION, t CIVIL ACTION - LAW
Defendant I
ANSWER TO CIVIL COMPLAINT
AND NOW comee the defendant repreaenting himeelf pro ee answering
(retaining the right to be represented by an attorny at a later
date) the Civil Complaint aa followe, making reference to the
paragraph numbere thereint
1.
Admitted
'f
2 .
Admit ted
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3.
Admitted
Admitted
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Admitted
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6. Denied ae etated. Defendant advieed the Plaintiff on
or about Dec. 17,1993 that there was not enough marble
on the jobaite to complete the work.
7. Admltted in part and denied in part. It is admitted
that the iteme have been inetalled. It ie denied,
however, that the marble had been inatalled to the
eatisfaction of the owner5 a5 of 4-19-94, nince Exhibit
E statee three (3) exceptions to the acceptability of the
work.
8. Admitted in part and denieu in part. It ia admitted
that the ownera authorized payment for unacceptable work
while not releaaing the contractor from the unaccept-
ability of the work. It is denied that all of the iteme
we~e o~derQd uy the Pefendant.
9. Penled, since the Pefendant hes no first hand knowledql
of any cutting of carpet by the plalntlff/ o~ of the
location of the carpet,
10. Penled as stated. The Defendant was acknowledging the
Plalntlffls continued refusal to Install the carpet.
11. Penled as stated. The Defendant has no first hand
knowledge of any cutting and fitting done by the Plalntlff/
nor did the Defendant give to the plaintiff specifications
for cutting or fitting of the carpet,
12. No response required.
13. Admitted In part and denled In part. it Is admitted
that the Pefendant ordered carpet and marble per
WKhlblts Band C, But It Is denied that any tile
was ordered or that the Defendant ordered Items pe~
WKhlblt D.
14. Answered In Paragraph N 7.
15. Admitted.
16. No response required.
17 , Den I ed ,
18. Denied.
19. Penled.
20. Denied as stated. The Pefendant has not been pe~mltted
access to the jobslte to supervise rep81~s o~ Inspect
said alleged completed work.
21. Denied.
22. No responne required
23, Anllweud In plluqtaph Ul.
24. Den1ed liS stated. The Defendant stated he >>w1ll be
fotced to otdet othet clltpet. ,...unless you make SIIt1Bfllctoty
attanqementB .,.>>
25, Denlod.
26. Den1ed as stated, Assutances of payment Wete only qlven to
the Pla1nt1ff should wotk be completed 1n a t1mely way and
1n good wotkman~h1pl1ke manner.
27, Den1fld.
28, Den1fld.
29, Den1fld,
30. Den1ed.
Whflrefore, Defendant requests your Honorablfl Court to deny the
judgement that the Plalnt1ff Is seeking and to schedule II
Hear1ng In this matter as ls deemed necesssry.
COUNTERCLA[H
31. The adm1tted allegations and the affirmative allegat10ns
1n response to the denied allegations of paragraphs 1-
30 above are hereby Incorporated herein by reference.
32. Ess1s and SonB Inc. were to have begun the marble work
Nov. 30, 1993 and were to have completed their work
wlth1n 5 working days. Attached hereto and marked as
Exhibit A, 2 pgs. are 2 copies of correspondence from
James Clemons to EssIs and sons confirming theBe facts,
33. The total number. of days from Dec. 10/ 1993 to Hay 5,
1994 Is a total of 147 days. Th1s figure ls obtained from
4-11-'.
",. 01.. ... h
",. Larrr Wrlqht
,.. .,Id Hollln911 I Deb Weleh Job
Dllr .'UI
It h.. bien .ever.l w..k. .Ine. Bob end Kevin .pent one
41r MOrUn, on upll II , the 110111 n,u rnldencl. To
41 'f .nl~ on. It.. on .r II.t of . r.p.lr. h.e been
eo.,alted, .n4 th.t on. . r'Pllt of the un.v.n .d,. lion,
the IUllt .tS,. of th.. Hot tub Iller b Ie wor k. "
Nov III 1441tlon to the orltln.1 II.t of . It.m. to b.
r.pall14 .r. the horrlbl. .crlpln, In~ ..ndln9 m.rk.
you ...rlltn leU on the louth .hower w8l I .nd Oil .Imo.t the
.ntlll .hower Iloor, .n4 100.. 'nd un,rout.d marbl. on the
.ho..., c.ll In,.
Unl... rou ..k. .rr.n,...nt. with ~e by 5,lO p~ tonl,ht,
,t .y ,lie. of bu.lne.., to co~pl.t. the r.p.lr. In I tl~ely
..nn.., I will I~41.t.ly hit. Inother co~p.ny to co~pl.te
the r.palr.. I h.v. h.d e~pert floorlnt p.ople eKamln.
the ..rbl. work .nd the co.t to repair I. dlfllcult to
..tl..t. .nd will h.v. to be done on e T , H ba.la.
I viii 1110 hold ...1. . Bon.. Inc. r..ponelbl. for any
IIquld.te4 d'..,.. .......d to Cle~ona I Son. Con.tr. by
Ired .011Int.r/D.b W.l.h b.c.u.e of your failure to co~plete
the ..rbl. work. L.rry Wrl9ht WI' It all time. .ntlrely
.WI.I 01 the IIquld.t.d d...,.. clauae that I waa workln,
with on thl. jOb.
.Inc. rou .ra r.fu.ln, to In.t.ll carpet In the "ollln,er
re.I'.nc. per work ord.r No. ~ 84551, I wIll be forced to
ord., oth.r c.rp.t to co.plet. the job, unle.. you make
..tl.l.ctory ,rren,e..nt. wIth ~. by 5,lO pm tonl9ht at
-r plee. of bu.lne"t to h.ve the Ibove m.ntloned carpet
Inlt.lled In t~e Hollln,er r..ldenc..
I .aft..t you contlct .. .t .y telephon. nu.ber or In
wrltl.. ..q.r4In, eo.,letlon of and paym.nt fat marble,
e..pot wor' at the Holllnq.r r..ldence In.t..d of
contllaelly eellln, Ired and Deb at their place of work
.IncI rour work ord.rl w.re ..d. with Cle~on. .nd Bon.
eon.tr., an4 not with the Hollln,ere.
cordleUy,
~f)l,C~~
J.... H. Cle.unl
ec. ke4 "o11ln,er, Deb Wel.h
cl..... . .on. Con.tr. PO BOK 551, DI1I.bur" p~ 17019
.
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Hay 5, 1994
......11'18 OIL
__a.!-~ IIqln UovaRD
Mr. ~ad 10111n9.r
Mal. Deborah W.hh
2-50 PQrd Pa~ Road
Neah..lo.bur~, PA 17055
... "al.' .OD., lDO.
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Dear Mr. 101l1nv.r and H.. M.l.h.
,.. JO'I an avu'., th1. of Hc. l"Ilpreuntl B.lil .. 80nl, Ine. We
h... been ad.l.ed that .11 It... prlYloully addre..ed 1n my latter
of April 22, 1994, ha.. now been completad by my clienta. Please
be .a.laed that ln aooordane. 'lith the proYilienl of the Mechanics
Ll... z..w, that MY oU.nt.. do lntend on filing a cleim and pursuant
to the prOY1.lon. of 49 P.R. I501(c) ~tate the following'
1. .... of Clai"Dt. Blli... 80ne, Inc.
2. .... of tbe Per.OD with Kbu. Contract..d. Clemons" Sons, Inc.
]. n.. AIMnIDt Clat.ed to be DUI. $9,990.33, including finance
ohll1'98a to Apr 11 21, 1994, plu. any additional finance charges due
froe the afore.aid date.
4. OeDeral .atD~ aDd Cbaract.r of t.be Labor or Hat..rlah
'.n........ TUe, .arble, and carpet in.talled at the premhes
1eoated at 2150 Pord Pa~ Road, Machanic.burg, Cumberland County,
peuIIJ1..nla.
5. Det. of Coapletloa of tbe Work for Whleb the Clal. i. Hade.
~d1 21, 1994
6. a.d.f De.ClrlpUOD hUlohnt to IdlnHfy tbe Property Claillled
to be .abjeClt to tbe Ll.D' 2850 Ford Farm Road, Mechanicsburg,
Cu.barl.ad County, penn.ylyania.
7. ~ Dat. oa KblClb 'rellainary "ot.lc. of Intentlon to ,lle a
Cl.~ ... al..DI April 22, 1994
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I IN THE OOURT or OOKMON P~EAO
I cUKBBR~ANP COUNTY/ PENNSY~VANIA
I
I
I NO. 94.4510 CIVI~ TERM
I
I
I
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I CIVIL nCTIoN - Lnw
BRAD E. HO~~INQER and
DEBORAH MYERS WE~BH,
plaintiffs
JAKBS M. OLEMONS/
t/d/b/a OLEMONS nND SONS
CONSTRUCTION/
Defendant
MUllillR TO RULfL'rQ SHOILQA..!!IDLHlfY SPECIllJ, RELIEF SHOULD
NOT BE QRnNTED nNP M9~P FOR ~An~~
COMES NOW, Plaintiffs, by and through their attorneys,
connelly, Reid & Spade, by John F. Lyons, Esquire, and respectfully
represents and avers as follows:
1. Admitted in part and denied in part, It is spedfically
denied that John F. Lyons, Esquire, or any other member of the firm
of connelly, Reid & spade is acting unprofessionally or has
violated any canon of ethics in representing Plaintiffs in their
breach of contract action against Defendant,
By way of further
denial, the matter in which the firm of Connelly, Reid & Spade, its
members or associates, may have represented the Defendant,
terminated on or about June 29, 1993.
'rhere is no substantial
relationship between the matter for which Defendant sought
representation or consulted with members or associates of the firm
of Connelly, Reid & Spade and the current matter pending before
this Court Which involves a breach of contract action arising out
of a contract entered into between the parties on October 31, 1993.
, "
, . ..,.
The representntion was very limited in time and soope of employment
and involved oustody issues. The Defendant's allegation that the
firm reoeived "hundreds of pagef.l of eensitive information regarding
the business llnd personal affairs of Defendant" is speoifioallY
denied. It is admittod information WilS raceived but it is denied
that such information constituted hundreds of pages or that it was
sensitive or confidential since it appears that such information
was disclosed in public proceedings, With agreement of the
Defendant, representation in terms of time and scope of smployment
wos extremely limited, as set forth in Exhibit "A". By way of
further denial, the averments of Plaintiffs' New Matter ars
incorporated herein by reference.
2. Admitted in part and denied in part. It is admitted that
reports authored by Allen R. Miller, Ph.D and Janet S. Blies, M.S.
were received from Defendant. After review of the file, there was
no report from stanley E. Schneider, Ed,D. and such allegation is
denied. The referenced reports were not related to any matter
involving representation of Defendant by the law firm or its
associates but appear to have been prepared for a public proceeding
involving other persons. The reports conta in no information
substantially or materially rp.lated to any issue in the instant
litigation.
:3. Denied. The law firm provided advice and assistanoe
with regard to one (1) matter only as shown on the billing attached
2
. .
, ~...
.
by Defendant to his Petition as enolosure 11.
The advioe and
assistanoe was very narrow in scope and time by agreement of all
parties to suoh matter. The matter was a oustody dispute in whioh
Defendant represented himself l;l.1:Q Iil~ but requestod limited
assistance. The scope of representation is confirmed by Exhibit 1
attached hereto. By way of further denial, the averments of the
New Matter set forth hereinafter are incorporated by reference.
4 .
Denied,
Pefendant's opinion that there is a conflict of
interest preventing representation is erroneous.
'rhore is no
m~terial or substantial relationship between the matter for which
Defendant may have sought representation or advice and the current
proceeding pending before this Court. Defendant fails to plead any
substantial or material relationship betweon the matters for which
he sought representation or counsel and the instant matter.
Rather, Defendant raises vague conclu!lory allegations that
information received pertaining to psychological evaluation and
testing results involve matters pertaining to a breach of written
contract for the remodeling of Plaintiffs' residential real estate.
Plaintiffs, after discussion with their counsel, decided to
continue with the services of the firm of Connelly, Reid & Spade,
and John F. Lyons, Esquire specifically.
5. Admitted in part, denied in part. It is admitted that
Defendant advised John F. Lyons, Esquire of his opinion that there
was a conflict of interest. It is denied there was a discussion
3
.
. ,...
re9ardin9 >>sensitive information>> or the oontents of any file with
the firm. ~ather, BS set forth in the attaohed Exhibit >>a>> hereto,
Dl!fendant was advised of his right to file a Motion with this
court, whioh Defendant has done, to determine whether, in faot, the
law firm of connelly, Reid & Spode should be disquallfied from
oontinuing to represent Plaintiffs in this matter.
G. Denied. After reasonablo invostigation, the Plaintiffs
are without suffioient information to form a belLef os to the truth
of the averment. specifically, Plaintiffs are without any
information regarding any conversation which James Miller, Esquire
may have had with Defendant regarding hiB rationala for refusing to
represent Defendant and proof thereof is demanded at the hearing on
this matter. It is admitted that James Miller, Esquire, while an
assooiate with the law firm, did not handle any of the Plaintiffs'
affairs.
WHEREFORE, Plaintiffs request your Honorable Court deny the
Defendant's Request for Special Relief and impose oounsel tees and
costs, and suoh other sanctions as may be deemed appropriate.
MorroN FOR B^N~~
7. The instant matter is a breach of oontraot aotion
inVOlving a written oontract between Plaintiffs and Defendant for
the remodeling of Plaintiffs' residential real estate by Defendant.
4
, .
, '..,
Il. On July 11l, 1\'l9B, llofel1dntlt Wne plaoed under oath 8nd
deposed rD98rdin'iJ the hots of thlJ instnnt breooh of oontraot
80tion.
9. During the oourse of the dopoaition, Defendant admitted
reoeivinll payment from Plnintlrfu of funds to pay tho olaim of
Defendant's suboontrnotor, EBB ia & Bona, Ino., in the amount of
Nine 'l'housand four Hundrod FOUl" Dollnra ($9,404.00).
10, During tho courao of tho dupos it ion, 00 fondant admitted
that hlil had not pnid any of tho monioa to Eaaia & sons, Ino.
despite boing requeated to do ao by Plaintiffs.
11. During tho courae of the depoaition, Defendant admitted
that he has not repaid any of the monies reoeived from Plaintiffs
for the Easis & Sons, Ino. olaim to Plaintiffs.
12. During the course of tho deposition, Defendant admitted
that he did not complete the oOlltt'act 011 or before Deoember 16,
1993.
13. DUring the courae of the deposition and in a aeparate
verif ied pleading, Defendant has admitted llabil i ty for delay
damages under the contract in the amount of fourteen Thousand Five
Hundred Dollars ($14,500.00). (The verified pleading is attached
hereto, marked aa Exhibit "C", and incorporated herein by
referenoe) .
5
, .
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14. In his responsive plo~din'\J to the complaint of
Plaintiffs, Defendant hUB averred no oognizable defense to
Plaintirfs' olaim for breaoh Bnd subsoquent damages.
15. Defendnnt hns not pnid tho nttorney's ffiles and oosts
ordered to bo paid by this court's Ordor of June 20, 1995.
16. Defendant has intet.'Poscd this mot ion for the sole purpose
of delay and to hnrass and vox the Plaintiffs.
17. plaintiffs request additional sanctions in the form of
attorneY'fl fees and oosts inour.red in defending against this
frivolous motion.
18. Plaintiffs request this Court impose additional sanotions
against Defendant in the nature ofl
(a) Counsel fees and costs incurred in defending
Defendant's Motion)
(b) Partial judgment against Defendant for the sum of
Nine Thousand Four Hundred Four Dollars ($9/404.00) whioh is
admittedly owed by Defendant I
(c) Partial judgment against Defendant for the sum of
FOUrteen Thousand Five Hundred Dollars ($14/500.00) representing
oontraoted for delay damages which Defendant also admits are duel
and,
(d) Interest from December 16/ 1993 on the partial
judgment for the sum of Nine Thousand Four Hundred Four Dollars
($9/404.00) .
6
. I' . ,. . II ..
were ordQ~ed by the Defendant,
9, DenIed, sInce the Defendant hae no flret hand knowLedqe
of any cuttIng of carpet by the plaIntIff, or of the
LocatIon of the carpet,
10, DenIed aa etaled. The Defendant waa acknowledqlnq the
PlaIntIff's contInued refuaaL to Install the carpet,
11. DenIed as stated. 'I'he Defendant haa no flrst hand
knowledge of any cuttIng and fIttIng done by the PLaIntIff,
nor dId the Defendant gIve to the plaIntIff speclflcatlona
for cuttIng or fItting of the carpet,
12, No response requIred.
13, Admitted In part and denIed In part, It la admitted
that the Defendant ordered carpet and marble per
ExhIbIts Band C, But It Is denIed that any tile
was ordered or that the Defendant ordered Items per
ExhIbit D.
14. Answered In Paragraph H 7.
15. AdmItted.
16. No response required.
17. Denied.
18 DenIed.
19. Denied.
20. DenIed as stated. The Defendant has not been permltted
accese to the jobslte to supervlee repairs or Inspect
said alleged completed work.
21. Denled.
22. No response requIred
. I' .
, ..~
23.
H.
^nswe~ed in paraCJ~aph Hl.
Denied as stated. 'rho Defendant stated he "will be
fo~ced to o~de~ othe~ oa~pet.. ".unless you make satisfaot:o~y
a~ranCJllments "."
26.
Denied.
26. Denied as stated. Assur.ances of payment were only qiven to
the Plaintiff should wo~k be completed in " timely way and
in good wo~kmanshiplike manner.
27, Denied,
28. Denied,
29, Denied.
30. Denied,
Wherefore, Defendant requests your Honorable Court; to deny the
judgement that the Plaintiff is seeking and to schedule a
Hearing in this matter as is deemed necessary.
COUNTERCI,AI H
31. The admitted allegations and the affirmative allegations
in response to the denied allegations of paragraphs 1-
30 above are hereby incorporated herein by r.eference.
32. Essis and Sons Inc. were to have begun the marble work
Nov. 30, 1993 and were to have completed their work
within 5 working days. Attached hereto and marked as
Exhibit A, 2 pgs. are 2 copies of correspondence from
James Clemons to Essis and sons confirming these facts,
33. The total number of days from Dee, 10, 1993 to Hay 5,
1994 is a total of 147 daye. This figure is obtained from
" ,.. \
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, I I ~
.-n-'t
HI, Joe ...l.
HI. LallY "r 19ht
1111 11M Mollln9u I D.b ".l.h Job
Dur .&u I
It h.. bl'" ..v.ral weekl Ilnce Doll and ~evln Iplnt one
d.~ WOIUn9 on replln . th. !tollln9u fuldena.. To
.hht ona" on. ate. on .~ ll.t of e repalu hIli bun
c:o., otect, Inel thlt on. I. r ,plIl r of the un.vlln ed,,1I II10n.,
th. II1Int .d.,. 01 the !tot tub marhle work. "
NOlll" ed.Btlon to the orl.,lnal Illlt of e Items to be
replllre4 ue the horrllll. ecra'llnq IInel "sndln9 muk"
you .rll,n hft on the lIouth .hower wall and on 1I1moat th.
.nUro ahower flClor, and 100.. In,l unqrouted IIIIIrbl. on thll
IhoWI: allll n9.
Unl.a. you ..k. Irrln.,..ent. with me by 51]0 pm tonlqht,
.t .y "alc. of bUIln..., to colftplete the uplln In II tlmllly
..nnll, I will I..,ell.t.ly hlr. enother compeny to compl.te
the ropllr.. I h.v. h.d '!lepert floorlnq pllople eNamlne
the ..rbl. work .nd the cOllt to rtqllllr I. dlfflcult to
utl..te Ind will h.ve to b., done on aT' H bllllll.
111111 aho hold ...1. , lion., Inc. ruponalble for IIny
Ilqul~.tecl dl""" .......d to Clemons' 90n. Con"tr. by
Ir.4 .olI1n.,.r/D.b w.l.h b.clu.e of your fallurll to compll1te
the ..rbl. work. LArry Wrl'Jht Will lit 1111 tlmell entirely
'~ro 01 the llquldlted d....,e" clllu"e that I was workln.,
with on thl. iob.
Ilnee you .r. r'lll.ln., to In.tell cerpet In the !tolllnqer
rll14lno. per work order Ho. A 84551, I will bll forced to
ord.1 oth.r c.rpet to co.plete the ioll, unleas you make
..tl.faotory .rrln.,...nt. with me by 5,30 pm tonight at
.y placl of bu. In'.., to h.ve the abovlI mentioned carpet
In.talle4 In t~. Hollln9.r realdence.
I .aft,.t you contact .. .t .y telephone nutnber or In
~ltint rl9.rdln9 co.pl.tlon of IInd payment for marblel
c:.,petwork at thl Hollln9.r relldence In.tead of
conti.aally clll1n9 'rld Ind Deb lit their place of work
Ilnco yollr work ordera wert .Ide wHh Clellonl and 80nll
Con.tl., and not with the Holllnger..
CorUeUy,
~/)1,~
J.... H. tl.lIOn.
ce. .re4 "0111n.,er, Deb Welllh
CI..ona I Ion. Con.h. PO 901( !\~I, DIIIl\lJ~rq, PI. 11019
.1- H f7.d-
,J{1'l
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10-21-' :J
Aqr....nt for re.odellnq work on the 'nd floor
...ter bttdroo_/b.throoll "ulte of thll Itolllnqu/Wlllllh
r..ld.nee on '1&0 'ord '.r. ~oad, Hllchanlcllburq, P^
We .,r.. to the lollowlnql
l. .nolol.4 Ichedule of work for oct., Hov. , Dec. or
lIU.
2. r.~.l prlclnq dlted rev. 10-28-93
3. '.r--nt Ichedule 12pql,) dated 10-28-93
4. d'lerlptlon of plu.blnq end ceblnetry
..hrl.l. per He'oce lnvolclllS 1173809 and
,..,4U7.
ft. Uoor phn III etch.. with IUec. (2 pgsl, dated 10-14-93.
,. carpet end elec flKturel to be Illl11cted by Ownerll
on or b,fon Hov. !I, 1993.
1.Cl.~nl 19r'lll to deduct 8100.00 from contract price
~.elch dlY III work II not lublltantllllly completed
... Olcellber 4, \9 9 J .
I. Mol1In911r/Welllh agree to pay Clemone $100.00 per day for
.aeh dlY III work Ie lublltantla1ly completed before
Dec. 9, \993.
dete L/ Ir,h
/'Ldj
date /rJ/Jf'/~ 3
.
.r~ I. HOll1~~~ (J~llr)
..41~~/.. ~~.... 4k.
Debor.h "yer. Wellh (owner)
~tLo\-U I~\.
J.... H. Cle~n.
-
(~ L " ,..;-:>
(contractor)
/0 JJ(j /9]
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^l'TOMIr \'~ M 1.'IIl'
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'^~'P.\'""PI
HIlY II, 1994
""'11'111I) NAIL
Il.aku_ a.cJIln UOU&IIftD
Kr. Brad Rollinqar
H.. Debor.h Wel.h
215 0 Ford PUll ftoad
"-a~.nlolbur9, PA 17055
... ""ll' loae, lao.
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Dear Kr. Bollinqar and HI. KIllhl
M you .ra l"lra, tllle offiCII repnlnntl Bull , Sonl, Ino. We
h".. been adylllld th"t ,,11 lta.1 prllvioulll addrelled in my letter
ot AprLl 22, 1994, ha.. now blllln complete by my clientl. Please
be .a.bed that in "coordance wlth the provieionl of the Meohanio"
Li.. Law, t.hat ~ cliantl do intend on filing a claim end pursuant
to the provilionl of 49 P.B. 1501(cl atate the followingl
1. ... ot Cl.1aanl:, Bllh' Sone, Inc.
2. .... ot tba 'erloa wil:h Hb~ Contraoted, Clemons & Sonl, Inc.
J. Y1ae AIIoullt Cld..d to ~ Due, $9,990.33, including finance
oharvel to April 21, 1994, plul any addltlonal finance charges due
f~ the .for...id datil.
4. o..erd .al:l1n1 aad Character of the Labor or Materials
,....l.a..elt TU., aarbl., and carpet in.talled al:. the premise"
loa.ted at 2850 Pord Pat'll Road, Mechanic.burg, cumberland County,
Pennl,l.anh.
5. Dat. ot Co.plll:iOD of tb. Work for Whieb the Claim i. Hadlll
April 211, 1994
II. arl., o..ariptioa lullioiellt to Id.ntify tb. Properl:y Claimed
1:0 be Injeat to tbe Lien, 2850 Ford Farro Road, Mechaniclburg,
Cu.berland County, Plnn.ylvania.
7. fte Date oa tfb10b Pnliaiaary ""tice of Intention to FUll B
Clat. ... 01..n, April 22, 1994
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1 THI COURT I Thi. i. the time and place for a
3 bearing on a Motion for Speaial. Relief Regarding
3 Re.ignation/Di.mi..al of John P. Lyon., I.quire, Attorney
4 for tba Plaintiff.. We'll let tbe reaord indiaate tbat the
5 Defendant and moving party i. pre.ent pro Be, and Mr. Lyon.
6 i. preeent with hie aounBel Robert Davi.. We bave until
7 11,00 eaheduled for thi. hearing, .0 I'll a.k tbe partie.
8 and aoun.el to ba brief. Mr. Clemon.?
9 MR. CLEMONS, Your Honor, I filed thi.
10 petition for epeaial relief to have Attorney Lyon. removed
11 from thi. aa.e beaause Jame. Miller, who i. an attorney that
13 worked with that law firm at tbe time he wa. doing .ome
13 repre.entation for me, advi.ed me in January of 1994
14 approximately .ometime during that month -- I didn't write
15 down the exaat date I aalled him -. but he advi.ed me tbat
16 he .houldn't repre.ent me beaau.a he wa. familiar witb the
17 HollingerB' bu.ine.. affair., tbat I .hould get anotber
18 attorney.
19 THI COURT I What doe. thiB aaBe involve? I'm
20 not familiar with it at all. What i. the aomplaint about?
21 MR. CLIMONSI The aomplaint waB filed by
22 Attornay Lyon. for Brad Hollinger and Deborah Myar. Wel.h
33 for -- it aro.e out of a di.pute for. a aontraat that I bad
24 on tbeir re.idanae.
25 THE COURT I Do you --
3
-.
1 .... aLDONS I And they' n .eeking lIlOnet:ar:y
:a damag...
3 THI COUR'l' I Wait, wait. Vou do oon.truotirm
4 work, do you?
5 MR. CLBMONSI V... I'm a general oontraotor.
G They had a.ked m. to oom. for a depo.ition, and I .dvi.ed
7 Attorney Lyon. that I felt like hi. l.w firm had inform.tion
8 that would give them an unf.ir adv.nt.g. in thi. a....
9 THB COURT I Do yau w.nt to t..tify .nd plaoe
10 .om. f.ot. on the reaord in lupport of your petition or
11 motion?
12 NR. CLBMONS I VII.
13
14
16
16
17
18
19 C-l-e-m-o-n-..
20 THB COURT, And wh.r. do you live?
21 THB WITNESS I 402 Golf Club Av.nue,
22 Dill.burg, P.nn.ylvania.
23 THill COURT I Wh.t is it you w.nt to .ay !on a
24 f.otu.l len.e in .upport of your motion?
26 DIRBCT TIIlSTIMONY
THB COURT I All right.
Wher.upon,
JAMBS M. CLEMONS
h.ving be.n duly Iworn, te.UU.d .. follow. I
THB COURT I St.t. your nlUll. , pl.....
THB WITNESS, JIUIl.. M. Clemon., .palled
4
~
1 THI WITHISS. I would like to te.tify that
2 Attorney Miller, who had been a..ociated with the law firm
3 of Connelly, Reid' Spade, advi.ad me that he could not
4 repre.ent me in thi. matter, and he advi.ed me of thi. in
5 approximately January of 1994, that ha wa. familiar with the
6 Hollinger.. Brad Hollinger'. financial affair. and it would
7 be a conflict of intere.t.
8 I felt like .ince he had repre.entad me in a
9 child cu.tody ca.e, bu.ine.. ca..., rapre.ented my .on,
10 repre.ented my children in court before the judge and I wa.
11 very familiar with him, that sinco he couldn't repre.ont me
12 I didn't feel that it wa. right for the member. of -- for
13 John Lyon. to repro.ent tho Plaintiff. becall.e I had
14 .ubmitted a lot of information to Connelly, Reid & Spade,
15 three different psychological evaluations of myself and my
16 wife, p.ychological evaluations of all of my children. They
17 had knowledge of my business effairs, and they -- my trial
.8 plans, my thoughts and everything like that.
19 I feel like, you know, with all of that
20 information available to them, that he should disqualify
21 himself from the oase and that Brad should find another law
22 firm. Brad Hollinger and his wife testified in their office
23 in May of 1994 that they would got another lawyer, whereupon
24 they didn't receive another lawyer.
25 MR. DAVIS. Your Honor, I don't know the
5
,"""'I
1 .x~.nt ~o whioh the rul.. of evidenoe are ~oin~ to apply
2 hne..
3 THB COURT, They're very applicable.
4 MR. DAVIS, I would think, then, Mr.
5 Hollinger'. te.timony would 8peak for it.elf, if he ha. any.
6 Otherwhe, obvioully, it's hear.ay, Your Honor. If he ha.
7 .omething in the reoord cr otherwi.e .. or he could have
8 a.ked Mr. Hollinger to oome today. But it's inappropriate
9 for him to give testimony a. to what Mr. Hollinger 8aid on
10 another oooa.ion, and that's our objeotiun.
11 THE COURT I I don' t think this statement wa.
l2 being introduoed for the truth. I'll overrule the objeotiorl
13 on that point, but I do went to make olear the rule. of
14 evidenoe do apply in this prooeeding.
15 THE WITNESS I That's all I have to .ay.
16 BY THE COURT I
17 Q Well, now, what information WQuld Mr. Lyon.
18 have about you that would make it unfair for him to
19 repre.ent the Plaintiff8 in thi8 oa.e?
20 A Well, I feel like handing over oompl~te
21 p.ychoh"lioal rtlport8 on my.elf and my wife and my children
22 i. giving him an unfair advantage. I per80nally feel like
23 that'. not 80mething that they .hould have, you know, in a
24 oa.e like thi8. But if the Court allow. it, then I 8tand
25 oorreoted.
6
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6
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n
o When did that ooou~?
A They had tho.e ~epo~t. du~ing the year of
uu, and they we~e .ubmitted on two oooa.ion..
o And it wa. in oonneotion with what, 80me kind
of ou.tody aotion?
A Cu.tody and divoroe, ye..
Q Do you have any ~ea.on to think that Mr.
Lyon. ha. any information that would direotly ~elate to the
p~e.ent oue frolll yoU?
A I don't have direot knowledge of that,
although I do know that I dl,d .ubmit tho.. II\&tarid. to that
law firm, and I would a..UIIIe that they would be available to
him in 80me form o~ another.
Q Are you .aying you oontaoted 80mebody in Mr.
Lyon.' offioe to ~epre.ent you in this oa.e?
AYe..
Q In this partioular oa.e?
A Well, I oontaoted -- no. I oontaoted Jame.
Miller.
Q I'III not familiar with all of the attorney.,
.0 I don't know who'. in who.e ofUce..
A Jame. Miller was an attorney working with
Connelly, Reid & Spade. And .ince, he ha., I gue.., opened
hi. own law firm. I don't think he'. a..ociated with thelll
any longer. That'. what he told me. I don't know when the
7
"'""
1 data oe that occu~~.d, I think it wa. .o~.ti~. aft.~ the
a .umm.~ of 1993.
3 Q 'o~ th. ~.cord, what offic. i. M~. Lyon.
4 with?
5 A Mr. Lyon. i. with connelly, R.id . Spade.
6 Q Did you contact Jama. Millar wh.n h. worked
7 fo~ conn.l1y, R.id . Spade to r.pre..nt you in thi.
8 particul~r aaae?
9 A Whan I contaat.d him, I beli.ve he wa.
10 working by him.elf at that tim., and he confirmed that with
11 ma.
la Q Confirm.d that h. wa. working by him.elf?
13 A H. wa. working by him..lf th.n. H. wa. a
14 coupl. of door. down from where h. had ba.n.
15 Q I.... And at that time h. told you that h.
16 didn't f.el h. .hould be repre..nting you b.cau.. he had
17 previou.ly repre.ented Mr. Hollinger?
18 A He didn't tell me that he had pr.viou.ly
19 repr...nted Mr. Hollinger, but he said he knew about Brad'.
ao Unancial, affairs beaaus. Brad was a client, of Connslly,
al Reid. Spade. It was a vary briaf di.au..ion.
aa Q Is there any other rea.on you think Mr. Lyon.
a3 aan't repre..nt Mr. Hollinger and Mr. Wolsh?
a4 A No. Tho.e are the only two r.a.on..
a5 THE COURTl Mr. Davi., any cro..-.xamination?
8
~
1 HR. DAVIS, Y.., Your Honor.
a CROSS-IXANINATION
3 BY HR. DAVIS.
~ Q Hr. Cl.~on., you've .lr..dy indio.t.d th.t
S thi. matt.r, thi. p.rtiol~l.r ~.tter, i. ....nti.lly .
6 oontr.ot matt.r, i.n't it? Hr. Holling.r i. .otu.lly ..ying
7 you didn't oo~pl.t. . job or you w.r. p.id and you didn't
8 p.reorm. I.n't th.t wh.t w.'r. h.ra about, ....nti.lly?
9 A I think that'. involv.d in tha all.g.tion.,
10 ye..
11 Q Ok.y. Now, ju.t beeor. the h..ring, w.
la provid.d or at lea.t ~ade availabl. to you the law oeeio.
13 eil. oe the eirm oe Conn.lly, R.id ~ Spade, did we not,
1. .itting her. on our tabl., the on. I have p~ hand on right
15 now?
16 A Yeah, at about 10,05.
17 Q And w. ..id that it would be av.il.bl. .nd
18 th.t you could look through it?
19 A Y.., you did .ay that.
30 A And you did not do .0. Do you know ie th.r.
31 i. anything in thi. eile that ha. dir.ot -- and, in ....no.,
33 I'm a.king wh.t the judge a.k.d you -- that ha. .oma dir.ct
33 r.l.vanoe to tha e.ot. in thi. oa..?
3. A I do not have eir.thand knowl.dg. oe th.t,
35 no.
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Q Now, additionally, do you know of anything
you told Mr. Miller when he wa. with the fi~ of connelly,
Reid & Spade that direotly relate. to your di.pute with Mr.
Hollinger?
A There were .everal thing. that I told him,
y....
Q In that case, would you tall Hi. Honor what
tho.e were?
A (No response.)
Q Let me retract that. Let me ask you.
differ.nt way, if I might. I'm .orry. This aotion began
after Mr. Miller left the firm of Connelly, Reid & Spade,
correot?
A I think so. To the best of my knowledge.
Q Can you think of any reason why he would have
even diecu..ed your disputes b.tween you and Mr. Hollinger
while Mr. Miller wa. in the firm of Connelly, Reid & Spade?
A I don't believe that I di.cus.ed it with him
while he was with that firm.
Q If I understand you correctly -- and we do
want to get thi. acourately, sir -- your objeotion is that
you think that the firm of Connelly, Reid & Spade got,
either through Mr. Miller or some other person in that firm,
information which lets them know about you, oorr.ct?
A I don't think that, I know that, b.cau.. I
10
~
1 hand delivered all of the information to Mr. Connelly.
3 Q Will you agree with me, th.n, that the foou.
3 here today and what you'ra .aying i. th,t you provided them
4 info~tion relating to .. not to the Hollinger matter, but
5 to another matter, whioh really wa. a oUltody matter in
6 whioh you were leeking ou.tody of your ohildren? I. that
7 accurate?
8 A That would be part of it.
9 Q All right. II there another part?
10 A Well, it wa. not only a oUltody. There wa. a
11 divorca proceeding. There were bUline.. proaeeding.. There
12 wa. finanoial informatiun about me. There wa. information
13 about my ohildren. There wa. a lot of information.
14 Q All right. Now, al a matter of fact, you
15 largely repre.entec yourself in the issues whioh you have
16 just named, iln't that true?
17 A I had represented myself pro .e.
18 Q A. a matt.er of fact, you would from time to
19 ~ime offer a piece of the litigation in whiah you were
20 involved or the dispute that you were involved in to Mr.
21 Miller, and you asked him to handle a diloreet is.ue or
22 problem that you had. i.n't that correct?
23 A With regard. to the aa.e, he only.. and I
24 don't have any problem making thil very olear -- hi. aourt
25 involvement, out.ide of listening or oblerving, was to
11
1 repre..nt.y children in chamber. b.fore Judge Blackwell.
:I Q H. act.u.lly only w.nt t.o court. t.hat. one t.ime
3 for you, i.n't. t.hat. tru., und.r a r.t..in.r?
4 A No. H. wa. in court on a Friday and a Monday
5 involving that c.... It we. the :15th and the :18th of Jun.,
15 1993.
7 Q And wh.t wa. the iuu. b.ing litigat.d at
8 t.hat point?
9 A Th. iuu. at that point wa. child oustody.
10 Q You've m.ntion.d a coupl. of r.port.. W.r.
11 t.h... t.h. r.porte from -- firet of all, do you r.m.mb.r who
1:1 had written thoe. r.portn?
13 A Yu .
14 Q And you've characterized thoee a. r.lating to
15 you and your children, iB that correct?
16 A I don't remember if I .aid my fllll1ily or my
17 childr.n, but it wa. my.elf and my childr.n, my curr.nt wife
18 now, h.r children, my et.pchildren.
19 Q I. it pOB.ible that tho.e r.port., in fact,
:10 r.lat.d to anoth.r matter, not your own matt.r, but anoth.r
:11 matt.r involving anoth.r fllll1ily?
:1:1 A ThOle r.port. did involve othar fllll1ili..,
:13 b.caue. they were involved in thi. trial.
:14 Q Do you refer .pecifically to the Schn.ider
:15 r.port, i. that on. of the on.., or do you not have a -- I
1:1
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1 don't m.an to lu;g..t that wae or wa.n't, but do.. that help
3 you r.ool1eat?
3 ^ Ther. were .everal report. by Dr. Stanl.y
4 Sohneider.
15 0 Wen any o~ tho.. provid.d, to your
6 r.ool1eotion, to the ~irm o~ Connelly, Reid & Spade throu;h
7 Mr. Miller or otherwi.e?
8 ^ Ye. .
9 0 Which one wa. it?
10 A A. I t..ti~ied be~on, then were ..varal.
11 There wa. a report on my.ol~ and my .on.. There wa. a
13 ..parat. report on Jonathan Clemon8, there was a 8eparate
13 report on Jan Aug8burger (phonetic), and there was raw
14 material pertaining to all o~ the obeervation that Dr.
15 Schneider had done.
16 0 That'. your recollection o~ what was provided
17 to the ~irm, is that correct?
18 A JU8t in regard to Dr. Sohneider.
19 0 Now, how about a report ~rom Allen Miller, do
30 you remember anything about that?
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A Yes.
0 Would you tell His Honor what the .ubject o~
that report was?
A That was a p.ychologioal evaluation o~
my.elf , Den and Jan Aug8burger and their two children. And
13
"....
1 Jan Aug.burg.r i. my pr...n~ wif..
:J Q Bu~ ~ha~ w.. no~ pupa red ini~ially with
3 r.gard ~o your own child cu.~ody procl.ding., bu~ ac~ually
4 the Aug.burg.r proc..ding., is that correct?
5 A It w.. pr.pared for bo~h, becau.e Jan and I
6 kn.w w. w.r. both going to ne.d that repor~ tor cour~
7 b.cau.e ot the accu.ation. that had been made, .nd we
8 r.~.in.d Dr. All.n Miller.
9 Q Another r.port by Dr.. Dit.ky and Bli.., do
10 you have any r.collection ot that?
11 A Y.e.
1:1 Q A. a matter ot tact, that one al.o w..
13 pr.pared with regard to the Aug.burger matter, wa.n't i~?
14 A That wa. pr.par.d .olely tor the Aug.burger
15 matt.r, and it wa. submitted in my c....
16 Q Can you t.ll Hi. Honor it there wa. any other
17 p.r.onal, p.ychologic or tinancial into~ation provid.d that
18 relates dir.ctly, in some way, to any iSBu, in the contract
19 di.pute between Hr. Hollinger and your.elt? And you may
:10 look at the file, .ir.
:11 A I think that tairly well de.crib.. the
:1:1 p.ychological report.. A. tor tinancial intormation, I
:13 think tho.. were mar. private matt.r. that were di.cus.ed
:14 with Hr. Hill.r.
:15 Q When wa. the custody matter finalized a. ~o
14
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1 your ohildren?
a A I'd like to be able to tell you it wa.
3 finaliaed. It'. been an ongoing matter for three year. with
4 ohange. in court order. and problem.. A oonciliation
5 oonference wa. heard in June of '9~. I'm trying to remember
& when the cuatody .ituation wa. basically finali.ed in
7 July of 1993, but it's been an ongoing matter.
8 Q How does that relate to Mr. Miller'. leaving
9 the law firm? Didn't that occur before ho left the firm of
1Q Connally, Reid & Spade?
11 A I'm not aure of the date that he left
1~ Cunnelly, Reid & Spade. I juat know that he wu ollt of
13 there by.. I think that he -- from what I recall, I think
14 he wa. out of the firm by the end of 1993. I think you
15 should probably a.k him when he wa. out.
16 Q You ju.t t..tified that you thought at lea.t
17 the initial atagaa of the custody matter ended in July of
18 1993, ia that correct?
19 A The initial atagea, ye..
~o Q And Mr. Miller left sometime later, oorrect?
21 A That'a w~at I think.
2~ Q Okay. That'. your recolleotion. Do you
23 recall having any contact with Mr. Miller after the ou.tody
24 matter wa. decided July of. '93, during any Lime when he wa.
~5 with the firm of Connelly, Reid & Spade, whatever that time
15
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1 pe~iod wa.? And we'll ept.bli.h that.
3 A I u..d to 0.11 N~. Mil1e~ a lot. Without
3 going baak and looking at .11 of my tel.phane reaord., I
4 aouldn't tell you wh.n, but I'v. talk.d to him a lat in the
e la.t th~.e year.. And I'v. talked to him .everal tim..
6 after that aa.., ye.. But b.tw..n that aa.e and January,
7 ye., I did talk to him.
8 Q You' n .aying you did?
9 AYe. .
10 Q Are you able to te.tify here today a. to the
11 i.,ue. you di.au...d with him?
13 A Y.. .
13 Q Tell u. what they wer..
14 A II! I remelllber aorreatly, in July, I wa.
le a.king him why it wa. taking '0 long for the oourt o~der to
16 get pdnted and .ent baak to m., and I WI' al.o advi.ing him
17 that I wa. having problem. with my ex-wife, getting
18 aommuniaation with my ahildren, and I filed a .peaial
19 motion, you know, getting phone privilege. and .ub.equently
30 a motion for aontempt. I wa. having probl.m., and he
21 advi.ed me. He advi.ed me in my bu.ine.. affair., too.
33 THE COURT I Thh h in July of what y.ar?
23 THE WITNESS, Thh h b.tw.en July and
34 Janu.ry of 1993.
25 BY MR. DAVIS I
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Q A. to the bu.ine.. affair. di.au..ion., what
were tho.e?
A X don't .peoifioally reoall what eaoh one
wa.. X remember having a problem with Bruoe Lumber Company.
Prom time to time X would a.k tbem about a oontraot, give
them a oontraot review, .uoh al the BNW -. or BMB oontraot.
There may have bean otber bu.ine.. i..ue.. I don't reoall
all uf tbem at thi. time, but tbare wera i..ua..
o I don't get a .en.e tbat you'ra foou.ing in
on tbe period of time that 1. a.ked about. I want to meke
lure that what you jUlt .aid relate. to that. Between tbe
time the ou.tody matter wa. deoided in July of '93 and the
time that you believe that Mr. Miller left the firm of
Connelly, Reid & Spade, and, tberefore, you had to go
.omewbere el.e to find bim, what bu.inel. matter. did you
di.ou.. with Mr. Miller during tbat di.orete time period?
A X ju.t told you tbat. I oan't tell you any
different tban what I jUlt .aid.
o Bo, your answer i. that you believe tbat your
reoolleotion relate. to tbat partioular period of time?
AYe..
o Were you billed for tbat time?
A I paid Mr. Miller everytbing be billed me
for.
o My que.tion, lir, i., were you billed for
17
I'l
r'''',
1 that tim.?
2 A I don't r.oall, without looking at: my
3 r.oord., if I wa. bill.d for .v.rything w. di.ou...d. I
. don't think I wa. in .v.ry 0....
5 Q A.. m.tter of f.ot, you were r.pre..nting
6
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11 Holling.r'. ol.im .g.inst you, you h.ve alr.edy .dmitt.d, ..
12 . pert of the di.oovery in this o..e, that you reoeiv.d some
13 $9,404.00 from Hr. Hollinger to p.y oontr.otors Bssis &
14 Sons, Ino., oorreot?
15 A I think I s.id I thought th.t I reo.ived that
16 mon.y, yes.
17 Q During your d.position of July 18th, 1995,
18 you also add .dmitted that you had not paid mon.y to Bssis &
19 .ons?
20 THB WITNESSI I don't se. th.t this i.
21 p.rtinent, Your Honor, to his involvement in this 0....
22 THB COURT I Hr. D.vis, there'S an obj.ation
23 on relev.noy grounds.
24 HR. DAVIS, It'. r.levant, Your Honor, to
25 show the relationship -- to meet the .ub.tantial
younelf l.rgely as to some of the m.tt.r. that you've
t..HU.d to here today during that period of time, the
motion -- it wa. a aontempt motion, I beli.v.?
A Y.ah, I repr...nted my..lf with that. Y...
Q With reg.rd to this partioular oa.., Hr.
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relation.hip te.t, whiQh i. the key te.t in te~' of hi.
qualifiaat.ion. under either Rule of Profe..ional Conduct 1.9
or the general Qa.e law. Th. burd.n of the movement in thi.
aa.e i. to .how that thare i. .om. .ub.tantial relation.hip
betw..n the twc repr...ntation..
The a... .- and, again, thi. i. partly for
Your Honor'. informatiQn -- the Qa.. that we'r. on here
today i. a QontraQt matter in which mo.t of the allegation.
that are being brought forth by Mr. Hollinger have, in fact,
been admitt.ed by thi. witnes.. There i. al~o a aounteralaim
that ha. been brought, Your Honor, that relate. to .. not
only a counterQlaim, but to attorn.y" fee. for
frivolou.ne.. a. it relate. to our being required to be here
today. So, we .ubmit it i. relevant a. to the pleading.
that we are here on today.
THE COURT I I'll overrule tho objection. The
que.tion i., did you admit .omething in your depoBition?
BY MR. DAVIS.
Q Have you admitted in thi. proQoeding that you
did reaeive mon.y for Bssi. and then that you did not pay
them?
A I reQeived payments from Mr. Rollinger for
hie job.
THE COURT, Well, to be fair to you, the
que.tion i.n't what y~u're admitting now or not admitting.
19
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1 It'. did you .ay .omet.hing in the depo.ition. If you don't
2 reaall, you don't reaall. Mr. Davi. aould then .how it to
3 you.
4 THE WITNESS, I reaall .aying that I received
5 aertain money. on that job, ye..
6 BY MR. DAVIS'
7 Q Do you al.o rea all that you did not pay E..i.
8 & Son., InQ., with thQ.e money.?
9 THE COURT, Are you a.king whether he .aid
10 that?
11 MR. DAVIS I Ye., whether he reaall. even
12 .aying that at the depo.ition.
13 THE WITNESS I Ye., I reaall that.
14 BY MR. DAVIS,
15 Q You do reaall that?
16 A Yea .
17 Q Okay. Thank you. You al.o reaall that in
18 your July 18th depo.ition you admitted liability for delay
19 damage. under the contract, and the amount of tho.e wa.
20 $14,500.00?
21 A I don't recall that.
22 Q You don't reQall that?
23 A No.
24 Q Do you recall, in a .eparate verified
25 pleading, admitting that faat?
20
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:L A I don't reaall ever .peaifiQally admitting
2 delay damage..
3 MR. DAVIS, Your Honor, may we approauh the
4 witne..?
5 THI COURT, Certainly.
6 MR. DAVIS. We'll try to get through thi.
7 fairly quiakly.
8 BY MR. DAVIS,
9 Q Do you remember that attaahed a. Exhibit "C"
10 to our re.ponle to thil motion wa. a aopy of your verified
11 pleading in the aa.e? Do you remember that?
12 AYe..
13 Q Let me .how it to you. That'. a aopy to your
14 an.wer to aivil aomplaint, aorrect?
15 A Thi. i. my anlwer, ye..
16 Q All right. And in that anawar, a. a matter
17 of fact, you admitted, a. alleged in Paragraph 13 of our
18 re.ponle, that there wal delay damage. under the aontraat
19 and the amount of tho.e would be $14,500.00. If you would
20 like to look, I'll be happy to let you do that.
21 A I would an.wer that that I have alway. .aid
22 in letter. and in any .tatement. to anybody anywhere that if
23 Brad wa. going to a..e.. me damage. I wa. going to a..e..
24 them to E..i., beaau.e Z..i. fouled up the job and not me.
25 Brad had agreed not to a..e.. damage., and then he went
21
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1 ah.ad and did it. I did not a~it liability for damag.. in
2 that job.
3 MR DAVIS, Of Qour.. the pleading will .p.ak
4 for it..lf, Your Honor.
5 BY MR. DAVIS I
6 Q Only one oth.r thing that I'd like to ..k you
7 about. There wa. an Order of thi. Court t.o p.y attorney"
8 fe.. and oo.t. with regard to the.e prooeeding. dated June
9 25, 1995. Do you reaall that?
10 AYe..
11 Q We've alleged that you have not paid tho..
12 fee. and oo.t., is that true?
13 A That'. true.
14 Q Would it refrelh your reoolleation oonoerning
15 your po.ition that you have taken in defen.e of the olaim by
16 Mr. Hollinger if I provided you with it, .ir? Do you
17 reaogni.e that? Do you have a oopy of that deposition?
18 AYe..
19 Q It .hows that you were depoled July the 18th,
20 1995, i. that aorreat?
21 AYe..
22 Q On Pages 61 and 62 you indiaate that, in
23 re.pon.e to the averment in the oomplaint which we've b.en
24 talking about -. Mr. Lyons a.ked you, a. to Paragraph 32, if
25 it'. true that Plaintiff. have paid the Defendant
22
......
1 approximately $49,000.00, and your an.wer i. admitted. He
2 a.ked you that, did he not?
3 AYe..
4 Q "The amount paid to the Defendant h olo.er
5 to 48,000 than 49,000," he .aid. Thh i. .till Mr. Lyon".
6 "So, to the be.t of your belief, you would admit th.t you've
7 received at lea.t 48,000 worth of the aontraat priae from
8 Mr. Hollinger and Deborah Myen Wel.h?" Your answar to that
9 wa. ye., correat?
10 A Correat.
11 Q Then you were I.ked, "Out of that .um, the
12 .um wa. .uffiaient to pay the aontraot priae as their amount
13 owe. to Z.sis," and your answer to that was yes?
14 A Correat. Well, hopefully, in the $48,000.00,
15 there was enough money to pay Zssis, yes.
16 Q Mr. Lyons then asked you, "And it's not been
17 paid to date, any sum?" Your response to that wa. what,
18 "Il..i. & Sons has not been paid anything to date," aorreQt?
19 A That's aorreat.
20 MR. DAVIS, Thank you. That's all we have of
21 the witness.
22 THE COURT, Mr. Clemons, is there anything
23 further you'd like to testify to as a result of the
24 questions that Mr. Davi. aoked?
25 THE WITNESS, Ye.. I guess, form my lack of
23
11
:L experience, I didn't reali.e that that depo.ition we. going
2 to be part of thie hearing. There are other oontingena~.e.
3 involving the amount. of money owed S..i., a. in un.igned
4 ahange order., work that wae not performed properly. I wa.
5 denied aace.. to in.peat their work in a fini.hed .tate. I
6 an.wered the questions al hon..tly I aould in the
7 depo.ition, but there waM a lot of que.tions that weren't
B a.ked that would have been very pertinent to that ca.e.
9 BY THE COURT,
10 Q Wa. Essis & Sonl a subaontractor?
11 A Yea.
12 Q Hired by you'/
13 A Yes, I hired them, at Brad's request, to do
14 the marble work in his house.
15 Q Okay. Anything further?
16 A Yeah. I would like to teat1fy that, as I
17 .aid in my deposition, that that's the worst marble job I've
18 ever seen in my life, and I withheld payment from them until
19 they would oome baak and aomplete the job and oomplete it
20 properly. At that stage, it wasn'!; aompleted, and I was
21 being ordered to pay them. I didn't feel like I should have
22 to pay these people for defioient work, unoompleted work.
23 That's a direat refleotion of my work as a general
24 aontraator, to pay people for work that's very deficient and
25 awful, and I wasn't about to do that and have people looking
24
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--
1 at that job for the next ten, twenty, thirty, forty year.
2 and .ay1ng that'. Jim C1emon.' job and it Wa.n't done right.
3 There w.re other amount. of money owed to me on that jab,
4 too, by Brad, al outlined, and other paperwork.
5 Q Did I.si. file a meahania'. lien?
6 A They filed a meohania's lien again.t Brad.
7 That i.aue went to arbitration and is aurrently on appeal.
8 THE COURT, Anything more by Mr. Clemonl or
9 aoun.el of thi. witne..?
10 MR. DAVIS, Nothing in term. of arO.I, no.
11 THZ COURT. Okay. You may atep down. Thank
12 you. Anything further, Mr. Clemon., that you want to
13 pre.ent in .upport of your position before we hear from Mr.
14 Cavil?
15 MR. CLEMONS I No.
16 MR. DAVIS. We're going to call Mr. Miller.
17 We are going to try to keep it short and foou. on whether
18 there was a aubstantial relationlhip between the two
19 employmGntl. Rule of Profe..ional Conduat 1.9, of aour.e,
20 ia a good summary of the proQedures and aonaiderationl in
21 that regard, and we would now oall Jame. Miller.
22 Your Honor, may he take the file up? If he
23 need. to refresh hi. reaolleat.ion, we would like to a.k that
24 it be done. It'. also the file in question. Do you have
25 independent file.?
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MR. MILLIR' Ye..
MR. DAVIS, May h. al.o do that?
THI COURT, Ye.. Hr. Clemon., do you have
any obj.ation to Mr. Miller'. referring to what I gath.r are
gQing to b. your file.?
HR. CLZMONS, I don't have an objection to
that.
THE COURT, Mr. Davi.?
Whereupon,
JIIMZS MILLZR
having b.en duly .worn, t..tified .. follow.,
DIRECT ZXANINATION
BY MR. DAVIS,
Q
A
Q
A
Q
A
Q
A
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A
Q
A
Would you tell your name, pleaae.
My name?
Ye..
Jamea Miller.
What i. your oooupation?
I'm an attorney.
Ar. you liaen.ed here in Penn.ylvania?
I am.
What's your number?
61352.
How are you pre..ntly employed?
I'm .elf-employed. I am a .ole praatitioner
26
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1 0 How do you know him?
2 A H. wa. a client while I wa. with Connelly,
3 aeid & Spade, and he wa. a alient of mine .ub.equent to my
4 employment.
5 Q Now, you have with you three .eparate typ..
6 of fil.s or thtee file., do you not?
7 AYe..
8 Q The latger file, whiah i. a red aaaordion
9 fold.r, is, in fact, a file of Connelly, Reid & Spade that
10 relate. to Mr. Clemon., is that true?
11 A Yes .
12 Q The oth.r two file., without getting into the
13 detail of them, what it the subj eat matter or case type that
14 those relate to?
15 A One is Mr. ClemQns', thd Defendant in thi.
16 aation, which inaludo. a austody matter, his cUltody aft.e,
17 and two .eparate busine.. matterSl and the other one is a
18 family member of Mr. Clemons'.
19 Q Those latter two files are files of your
20 present law praatice, whiah i. .eparate from the firm of
21 Connelly, Reid & Spade?
22 AYe..
23 THE COURT, I'm sorry. What was the third
24 one?
25 THB WITNESS, A family member of Mr.
28
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1 .~nce you :Left?
2 A Ab.olutely.
3 Q You didn't take that file with YOU?
4 A No.
5 0 Did the firm of Connelly, Reid & Spade and
6 you, working for them, di.cu.. with Mr. Clemon. the term.
7 under wh~ah you would repre.ent him generally with regard to
8 matters that he wae having trouble with in 1992 and 1993?
9 Wa. it di.aus.ed? That's all I'm asking.
10 A Did I disuuls with fit~ member. Mr. Clemon.'
11 ca.e?
12 Q No. Did you and the firm disau.. with Mr.
13 Clemon. the terms under which you would repre.ent him
14 generally or
15 A Maybe this will help. My representa~ion wa.
16 limited to the custody matter while I wae with Connelly,
17 Reid & Spade.
18 Q That's what I'm asking. Was there a general
19 retainer on the entire cu.tody?
20 A No. There was a retainer limited --
21 Q How so?
22 A in the amount of $2,000.00 for my
23 repre.entation of Mr. Clemon. during an in camera
24 examination of his ohildren before Judge Blackwell in York
25 County.
30
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1 Q By wbom?
2 A Me.
3 Q w.. there . r..pon.e to th.t, .uah a. would
4 h.ve bound the firm to that full r.pr...ntation, by Mr.
5 Clemon.?
6 A No. The firm wa. not bound to th.t.
7 Q Now, an. of the asp.at. of your
8 r.pr.s.ntation i. that you did provide advia. oona.rning th~
9 l.gal r....roh, as I und.r.tand, ie that corr.ot. r.lating
10 to the issu. of wh.th.r or not .- the .ffeat on ouetody if
11 one of the spous.s left the stat., is that aorr.ot?
12 A y...
13 Q Anything .1Ie?
14 A To my r.colleation, no, but p.rhap. there wa.
15 additional austody advic. giv.n.
16 Q Now, you've aotually r.view.d your
17 handwritt.n not.s, all handwritten not.s that ar. oontain.d
18 in that file, oorr.at?
19 A Yeah.
20 Q To your r.ooll.otion, do you r.memb.r if you
21 took any not.s with you wh.n you l.ft?
22 A Absolutely no.
23 Q B...d upon your r.view of your
24 cont.mporaneoue notes taken during the r.pr.sentation in
25 1993, do you r.oall .ver disoussing trial plan. that Mr.
32
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1 alelllOn. bad?
2 A In the cu.tody ca.e?
3 Q Y.. .
4 A I would have di.ou.sed with him the aUltody
5 trial plan., ye..
6 Q And hil thought. a. to the au.tody matter?
7 AYe. .
8 Q Did any of tho.e trial plan. o~ thought. a.
9 to the ou.tody matte~ relate to hi. di.pute with Mr.
10 HolUngn?
11 A No, no.
12 Q Did any of that rfllate to any problems he wa.
13 having finanaially with his business, Clemons & Sons
14 Con.truation?
15 A No.
16 Q Do you have any reaolleation of finanaial
17 information that Mr. Clemon. disoue.ed with you, or did you
18 identify any information in that file of Connelly, Reid &
19 Spade other than di.au..ions of atto~ney" fees and
20 retainers?
21 A When I reviewed the file -- fir.t of all, Mr.
22 Clemon. didn't disou.. finanaial matter. with me. At time.
23 he would .ay, I don't have money or I do have money,
24 .uperfluou. .tuff like that. When I reviewed the file on
25 Monday, I see that oounlel who represented Mr. Clemon. prior
33
1
2
3
4
!5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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to Mr. Clemons Qoming to Ooru1el:Ly, Reid & Spade had .upport
info~tion whiab date. back to 1991.
Q In faot, wa. that information u.eful in any
way with regard to the au.tody matter that yau were handling
in '93?
A No. In faot, I had not remembered ever
..ling it up until Monday.
Q I'm .ure Hi~ Honor know. this, but I want to
a.k it. Was finanoial information even relevant to what you
were asked to do 1.n term. of your repre.entation of Mr.
Clemon. with ~egard to the oustody of his children?
A No. However, I could see one way in whioh it
may be relevant, and that would be in the event his ex-wife
were to move to the northwest, Mr. Clemons would then have a
different austody sohedule, whiah would require air fair.
Q Did that, in faat, oaaur while you were
representing Mr. Clemons?
A No.
Q Do you reaall any mention of Mr. Hollinger to
you while you were with the firm of Connelly, Reid & Spade?
A I aannot preoisely recall when Mr. Clemon.
mentioned Mr. Hollinger'S name to me, although he did
mention it. I don't know if I was still with the firm or
out on my own.
Q You've indioated you reviewed the Connelly,
34
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1 Reid' Sp.de file at my reque.t. You've read your own
3 note., you've looked at the billing prQoedure. or billing
3 notice. or at le..t the firm'. record. Qf billing.. Part o~
4 that file wa. -. a. . part of your searoh, we a.ked you to
5 look for a report from a Dr. Sahneider, i. that oorreat?
6 A That'l oorreot.
7 Q Ie that report in that file?
8 A I did not aome aoros' Dr. Sohneider'. report.
9 Q Do you know why it'l not in that file?
10 A Ba.ed on my ~eview of the file, it appear. a.
11 though there was some major oonfusion on payment of money..
12 But I don't have the preoise an.wer, no.
13 Q Do you know if the Sahneidar repQrt was ev.r
14 in that file, in faat?
15 A To the belt of my reaolleation, no.
16 Q Is there anything in that file whioh would
17 indicate that you did receive it and perhaps the report wa.
18 lo.t by the firml tranlmittal letters, et aetera?
19 A There's nothing in the file that would
20 indicate that I reaeived the report. In fact, my billing
21 doe.n't even indiaate that I've reviewed a report by Dr.
22 Sahneider.
23 Q There is one mention in the file, in all
24 fairne.., of Dr. Sahneider, is that correct?
25 AYe..
35
~
......
1 0 Would you tell Hi. Honor what that i. ju.t '0
2 tbat we're aomplete and '0 everything" on the table?
3 A There i. a billing where Jahn Connelly talked
4 with Dr. Sahneider for .2.
5 Q That'. two tenth. of an hour.?
6 A Two tenth. of an hour. And I have a note, a
7 handwritten note, that Dr. SQhneider was r.ethinking hi.
8 position.
9 Q Does your note or doe. any information you
10 reaeived or that you know the fit~ received indiaate what
11 po.ition he was rethinking?
12 A No.
13 Q In faat, so far a. you know, and .0 far a.
14 your memory il aided by having reviewed the file of
15 connelly, Reid & Spade, dJ,d the firm of Connelly, Reid &
16 Spade.- do they have any information about Mr. Clemons'
17 mental, psyohological or finanoial situation that would
18 relate to Mr. Hollinger and his aontraat aation?
19 A No.
20 Q Let me ask you about a oouple of the reports.
21 We asked you to look at the Allen Miller report, did we not?
22 A Yea.
23 Q Do you agree with the oharaaterizat1on of Mr.
24 Clemon. that that was a report on him and hi. ohildren?
25 A No.
36
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1 Q What ws. your under. tanding of the report?
2 MR. CLEMONS' I objeat to that. I didn' t eay
S that that wa. a report on my children.
4 TUIl COURT, All right. To be hon..t, I don' t
6 recall whether you did or not.
6 BY MR. DAVIS I
7 Q Do.. it relate direatly to Mr. Clemon.?
8 A No.
9 Q What is the subjeat matter of that report,
10 either from refreshing your recollection in the file or
11 independent reoolleation?
12 A Wftll, I know there are two reports, and they
13 relate to
14 MR. CI,EMONS I Could I - - Your Honor, I would
15 like to look at these reports as he is looking at them if he
16 i. going to quote from some of thele.
17 THE COURTI We'll take a moment. We'll take
18 a five-minute rece.s.
19 (Whereupon, a brief reoe.. was taken.)
20 THIl COURT, My next hearing is ready to
21 start, so I have to reoes. thi. prooeeding. I have an
22 engagement at noon and an involuntary termination hearing at
23 1,30 and a disaovery conferenoe at 4,00. I did have a
24 di.aovery aonferenae scheduled at 3130, but that ha. been
25 oanaeled. So, I do have from 3,30 to 4100 to finish thi.
37
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1 bearil'lg, if that'. agreeable to everybody, Ol l.f you want to
2 aOllll baak at .ome othlr time, we oan r.e.chedule ~,t.
3 MR. DAVIS, It doe,n't look like it will
4 work, Your Honor.
IS TH! COI1RTl We'l,l aontinue it then. We'll
6 enter thi. Order.
7 "AND NOW, thi. 18th day of Oatober, 1995,
8 upon aon,ideration of the Motion for Special Relief
9 Regarding Re.ignation/Di.mi..al of John r. Lyon., a.quire,
10 and a hearing having oommenced on the motion but not having
11 been aompleted, the reaord .hall remain open, and aoun.el
12 and Mr. Clemone are reque.te~ to oont.ct the Court'.
13 searetary for a new date for the aonclu.ion of the hearing."
14 MR. CLEMONS, Your Honor?
15 'rHIl COURT, 'iu, air.
16 MR. CLEMONS, I would like, al.Q, if I may,
17 to note that in that file i. a profit-and-lo.. ~tatelllent
18 from Clemons & Son. Construction and that there are hundred.
19 of page' of information in there.
20 THZ COURT, At the next hearing, that'. going
21 to -.
22 MR. CLEMONS, And I don't know what'. going
23 to happen ..
24 THE COURT, Wait, wait.
25 MR. CLEMONS. -- to that file in the
38
4, Defendant hl1$ made no other efforts 10 attemptlo comply with the Court Order
of June 20, 1995 requiring him to make payment of Plaintiffs' costs.
S. In Ildditlon to the costs impo5Cd for the Defendllllt's unwillingness 10 comply with
the inWlI1 discovery requlremcnts, Plllintlff will Incur addltlonlll costs IInd eXI>cnses Including
reasonable allorney's fees of approximatcly Five Hundrcd Dollars ($500,OQ) In cnforclngthe
COUlt'S Order of June 20, 1995,
WIlEREI~OItE, Pllllntlffs request the Immediate entry of II Rule to Show Cause on
James M. Clemons and, upon subsequent hearing, an adjudication that James M. Clcmons Is In
civil contcmpt of this Court's Ordcr of Junc 20, 1995 and thaI. thc following sanctions be
Imposed ul)On Jamcs M, Clcmons:
('I) An unconditional One, payable to Plaintiffs. on a date certain, In the
amount of all damagcs suffered by Plaintiffs due to James M. Clcmons' non-compllRl1cc with
the Court's Order, including all allomey's fees and other cosls incurred by Plaintiff in enforcing
the Court Order;
(b) Judgmcnt in favor of Plaintiffs and against Defcndant, Jal11es M. Clcmons,
In the amount of the foregoing unconditional tine and the amount of thc previous award of
counsel fees and expenses of Seven Hundred Twenty-Five Dollars ($725.00) plus interest
thereon;
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