Loading...
HomeMy WebLinkAbout02-3774 AJR In The Court of Common Pleas of York County, Pennsylvania 2002/07/24 ~ . 0 l.. '3 11 'f c....i.v:J I L-- TANA L HALDEMAN VS HARRISBURG AUTO AUCTION Case Number 2002 SU 01522 01 Case Type Civil Action APPEARANCES D 001 HARRISBURG AUTO AUCTION 100 S YORK ST MECHANICSBURG PA RUBENDALL, CHARLES W II 17055 POOl HALDEMAN, TANA L 93 N 4TH ST POB 100 MT WOLF PA AUSTIN, SARA A 17347 DOCKET ENTRIES 2002/03/22 COMPLAINT IN A CIVIL ACTION 95.00 0052 0271 'S ~ 2002/03/22 JURY TRIAL DEMANDED 0.00 ~~ 0052 0271 ~ '" 8 <N 2002/04/01 'S Q ACCEPTANCE OF SERVICE 0.00 ]t OF COMPLAINT 0055 0474 .lj 2002/04/15 PRELIMINARY OBJECTIONS 0.00 'S ~ W/CERT OF SVC 0067 ~ 8 'S 0441 ~ >> J! '" 200'2/04/25 BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS 0.00 l~ OF DEFT W/CERT OF SVC 0074 0136 2002/05/07 AMENDED COMPLAINT 0.00 W/CERT OF SERVICE 0080 &1 :a C) .... 0147 2002/05/20 PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT 0.00 W/CERT OF SVC 0088 0021 2002/05/31 ANSWER TO PRELIMINARY OBJECTIONS 0.00 TO AMENDED COMPLAINT W/CERT OF SERVICE 0094 0145 AJR In The Court of Common Pleas of York County, pennsylvania 2002/07/24 TANA L HALDEMAN VS HARRISBURG AUTO AUCTION Case Number 2002 SU 01522 01 Case Type Civil Action DOCKET ENTRIES 2002/06/12 CERTIFICATE PREREQUISITE TO SVC OF A SUBPOENA 0.00 0101 0012 0.00 0123 0007 0.00 0123 0007 2002/06/28 ORDER DIRECTING CASE BE TRANSFERRED TO CUMBERLAND COUNTY BY THE CT:JOHN S KENNEDY JUDGE 2002/06/28 CASE TRANSFERRED TO CUMBERLAND COUNTY ** END o F CAS E P R I N T 0 U T .. (PROTR10l ~ TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW P"4 ..... v. HARRISBURG AUTO AUCTION, ,. -<' at ::n~: ;::<::- .. ( "U( " ...... ." .....(, .' r;', Defendant No. 2002-SU-01522-01 STIPULATION AND ORDER ReI TRANSFER OF ACTION \. ( plaintiff TANA L. HALDEMAN and defendant HARRISBURG AUT~ AUCTION, by and through their respective counsel, enter into the following stipulation, subject to the Court's approval and entry as an order of the Court, as requested below: WHEREAS defendant has filed preliminary objections to plaintiff's original and amended complaints, including a request that the action be transferred to the Court of Common pleas of Cumberland County, where defendant asserts that venue will be appropriate as it is the county in which is located defendant's principal place of business; WHEREAS plaintiff, without admitting the propriety of defendant's objection to venue, does not oppose defendant's request that the matter be transferred to the Cumberland County Court of Common pleas; "_' ,'.'~I..,."""",,""""J 1: 1:'9" 120211 CERTIFIED from the records~he Court f this ;)Ll ~ 0 CommonPlea8~.~I~ ~dayof AD. 20 OJ "- Stacia N. Gates, Prothon6tary ,..., = = ,..., C- , c: :.z: .I~ N 0) :n ':rtl I.~ --0 .- -('1 :x ,0 ~ ~ ..:'J ., N ,") U) "". WHEREAS defendant wishes to preserve its first objection to plaintiff's amended complaint (demurrer to age discrimination claims) for adjudication by the transferee court; and WHEREAS the parties wish to amicably resolve defendant's objection to venue without further expense or delay; IT IS HEREBY STIPULATED AND AGREED that this action, and all papers and files of record herein, may be transferred to the cumberland County Court of Common Pleas for docketing by the Prothonotary as a civil action in that court, subject to the approval of the York County Court of Common Pleas, which is hereby requested. BLAKEY YOST BUPP & RAUSCH, LLP KEEFER WOOD ALLEN & RAHAL, LLP /L-- c0-R~~ Charles W. Rubendall II By By Sara A. Austin Attorneys for plaintiff Attorneys for defendant Dated: June :r, 2002 Dated: June (" 2002 -' IT IS SO ORDERED By the Court: J. - 2 - {~I (0).-. IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYL VANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED PRAECIPE TO TRANSFER CASE TO STACIA N. GATES, PROTHONOTARY: Pursuant to the attached Stipulation of counsel and the Order of Judge John S. Kennedy dated June 27, 2002, please transfer the above case to the Court of Common Pleas of Cumberland County, Pennsylvania. BLAKEY, YOST, BUPP & RAUSCH, LLP by: ~ Sara A. Austin, Esquire Supreme Ct. l.D. #59052 17 East Market Street York,PA 17401 Telephone (717) 845-3674 Fax No. (717) 854-7839 Attorney for Plantiff , '."'..'0>1" ...1>1.. ,............. !: \ 19' 12~211 II:, ..... "" = ..... L- -<l c::: ( :z 0"", N :::0:. co ;:J;-, . (':~ "'0 ""0 .....l :J:: """'c' r., N .. N \l:I '" ,.,., 'r> <~ ,< .,.,., ;0 , ., . 'J : I I ) IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the foregoing document to be served on the following person in the manner indicated: By First Class United States Mail on: Charles W. Rubendall, II, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP By ~ ~~Q.." aM. ,talegal -. Dated: June 28, 2002 ,.'.""'1.....11".'....... 11,:\:I9'! 120211 ~;p ,...., c:> ::3 ; ( c.... \ -<c c::: ~ ::0 ;;!: C)~: 1'1 . '" :;0:::,. ':'C"') 00 ':"(11 =";T :~< . ( ''0 -1''1'\ ""c '3 ,<::I )>(1 ~ :.:J 1'1 ! N -"J \D , I\i . ~ ~ IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLV ANlA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522_01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to counsel for the Defendant on June 6, 2002; (2) A copy of the notice of intent, including the proposed subpoenas, is attached to this certificate; (3) By letter of June 7, 2002, copy attached, Defendant's counsel waived the twenty day waiting period; and (4) The subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent to serve the subpoenas. ~ Sara A. Austin, Esquire Attorney for Plaintiff 0 N C) L -< ~ ~', N -,,-, " - -u .' -:.~ " . r ~ , N . N Date: June 11,2002 164091010012 ~ HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RUBENDALL n ROBERT L. WELDON EUGENE E. PEPINSKY, .JFt ..JOHN H. ENOS m GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE ..JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE Ft. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS CRAIG A. LONGYEAR DONALD M. LEWISm BRIDGET M. WHITLEY .JOHN A. FEICHTEL ANN McGEE CARSON ELIZABETH ..J. GOLDSTEIN BARBARA A. GALL STEPHANIE KLEINFELTER KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17106-1963 ESTABLISHED IN 1878 OF COUNSEL: SAMUEL. C. HARRY PHONE (717) 255-8000 WEST SHORE OFFICE: 415 F' ALLQWF'IELD ROAD CAMP HILL, PA 17011 (7171612-5800 EIN No. 23-0716135 www.keeferwood.com June 7, 2002 WRITER'S CONTACT INFORMATION: Voice: 255-8010 Fax: 255-8003 crubendall@keeferwood.com Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 Re: Haldeman v. HarriSburg Auto Auction C.C.P. York No. 2002-SU-01522-01 Dear Sara: Please accept this letter as a waiver of the twentY-day waiting period before you serve your planned subpoenas on the Pennsylvania Human Relations Commission and the Equal Opportunity Commission. We ask only that full and complete copies of all documents received pursuant to those subpoenas be provided to us promptly upon receipt at your office. We will be glad to reimburse you for the mailing and copying expense. Your questions will be welcome. anticipated cooperation. CWRII / sg Thank you for your Very truly yours, KEEFER WOOD ALLEN & RAHAL, LLP By Cha~s~endall II 164091010012 !l:'tllJ>lrl> JU,v'l 0_ : IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYL V ANlA CNIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522_01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009-21 Sara A. Austin, Esquire, Attorney for the Plaintiff, Tana L. Haldeman, intends to serve subpoenas identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. Ifno objection is made the subpoenas maybe served. BLAKEy, YOST, BUPP & RAUSCH, LLP By: IL--- Date: June 6, 2002 Sara A. Austin, Esquire Attorney for Plaintiff S. Ct. I.D. #59052 I 7 East Market Street York,PA 17401 Telephone (717) 845-3674 164091010012 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, . No.2002-SU-01522_01 vs. HARRISBURG AUTO AUCTION, Defendant : JURy TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certifY that I have this day caused a copy of the foregOing Notice of Intent to Serve Subpoena to Produce Docwnents and Things for Discovery Pursuant to Rule 4009.21, to be served upon the following person in the manner indicated below: By First Class Mail on: . Charles W. Rubendall, II, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 21 0 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP , By: ~ -.f2!1.d~~~ onna 011, gal Dated: June 6, 2002 164091010012 ___'_.'4_ 0# IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYL V ANlA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 o r-) ~ -.-... -~ vs. ~-' ,- HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED ."";:l -,,~ -- ":' co, ~ PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT AND NOW, TO WIT, this!>/51;.ay of May, 2002, comes the Plaintiff, Tana L. {i-, o c.JI Haldeman, by her attorneys, Blakey, Yost, Bupp & Rausch, LLP and files the within, as follows: 1. Admitted. 2. Denied. Byway of further response, see Paragraph 3 below. 3. Denied. Plaintiffs age and/or allegations related thereto and/or stemming therefrom are contained within Paragraphs 3(a), 3(e) and 3(i) of the initial Complaint filed with the PHRC and attached to Defendant's Preliminary Objections as Exhibit "A". 4. Denied. By way of further response, see supra. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny and dismiss Defendant's Preliminary Objection as to the age discrimination complaint. 5. Admitted in part, denied in part. By way of further response, see below. 6. This paragraph states a legal conclusion to which no response is required. 7. Admitted. 154090940145 - - 8. Admitted in part, denied in part. It is denied that this action should be dismissed. However, Plaintiff is amenable to transferring this case to the Court of Common Pleas of Cumberland County. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Preliminary Objection insofar as it seeks to dismiss the Complaint, but, if required, that an Order be entered transferring this case to the Court of Common Pleas of Cumberland County, Pennsylvania. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: !l--- Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, PA 17401 (717) 845-3674 Supreme Ct. J.D. #59052 154090940145 2 . IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW T ANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the foregoing document to be served on the following person in the manner indicated: By First Class United States Mail on: Charles W. Rubendall, II, Esquire 210 WaInut Street P.O. Box 11963 Harrisburg, P A 171 08-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP By: ~ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, Pennsylvania 1740 I (717) 845-3674 Supreme Ct. J.D. #59052 ~." ~. .- -, (:~ Dated: 0}81 /O~ 154090940145 3 j,';ot,~ ~ c:> I" - >;-. -< ~~'" --0 c:> ,; (JI ,.", " , . TANA L. HALDEMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW C) 0 .~ N -, :;;: :,.::- -'" " N ::;;, ,--") ., ., '.0 .- HARRISBURG AUTO AUCTION, Defendant No. 2002-SU-0152.2_,Q1 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT ':'1 its counsel, Keefer Wood Allen & Rahal, LLP, to state its NOW COMES defendant, Harrisburg Auto Auction, by and through preliminary objections to plaintiff's amended complaint, as follows: I. Demurrer as to Aae Discrimination Claims. 1. In paragraphs 12, 13, and 29, and counts I (paragraphs 35 through 37) and II (paragraphs 38 through 40), plaintiff sets forth claims based upon alleged age discrimination under the Pennsylvania Human Relations Act, 24 P.S. ~ 951, et seq. ("PHRA") and the Age Discrimination in Employment Act, 29 U.S.C. ~ 621, et seq. ("ADEA"). 2. Plaintiff's claims in this regard are legally insufficient and can be dismissed pursuant to Pa. R. Civ. P. 1028(a) (4) because no age discrimination claim was first lodged against defendant by plaintiff with i~~9~~~~~tlvania Human Relations Commission ("PHRC") or the Equal Opportunity Employment Commission ("EEOC"). I' I' 3. The complaints filed by plaintiff in the PHRC, docketed to Nos. E-96002-D and E-97308-D, true and correct copies of which are attached hereto as exhibits A and B, respectively, made no mention of plaintiff's age in connection with her allegations of sexual harassment, discrimination, or retaliation. 4. Thus, plaintiff has failed to exhaust her administrative remedies with regard to her age discrimination claims. WHEREFORE, defendant respectfully requests this Honorable Court to grant its demurrer and dismiss plaintiff's amended complaint to the extent that any relief is sought on the basis of age discrimination. II. Obiection Raisina Improper Venu~. 5. Plaintiff alleges no basis for venue in York County. 6. Plaintiff's residence in York County is not a legally sufficient basis for venue. 7. Review of plaintiff's complaint, particularly paragraphs 6 through 33, reveals that the claimed acts of discrimination all OCcurred at, or emanated from, defendant's place of business in Lower Allen Township, Cumberland County. 8. This action should be dismissed, pursuant to Pa. R. Civ. P. 1028(a) (1), and transferred t~OQ~~M~hrt of Common Pleas - 2 - .~....'''' , . of Cumberland County for further proceedings, if it is not dismissed entirely pursuant to the foregoing objection. WHEREFORE, defendant respectfully requests this Honorable Court to dismiss the complaint on grounds of improper venue and enter an order transferring it to the Court of Common Pleas of Cumberland County, Pennsylvania, to the extent it is not dismissed for legal insufficiency pursuant to defendant's other preliminary objection. Respectfully submitted, Dated: May 14, 2002 By KEEFER WOOD ALLEN & RAHAL, LLP C~R~'~ n I.D. # 23172 Stephen L. Grose I.D. # 31006 Donald M. Lewis III I.D. # 58510 210 Walnut Street P. O. Box 11963 HarriSburg, PA 17108-1963 717-255-8010 and 255-8052 Attorneys for defendant 141090880021 - 3 - VERIFICATION The undersigned, Charles W. Rubendall II, hereby verifies and states that: 1. He is one of the attorneys for defendant herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing preliminary objections are known to him and not exclusively to his client; 4. The facts set forth in the foregoing preliminary objections are true and correct to the best of his knowledge, information, and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. Char~ubendall 11 Dated: May 14, 2002 141090880021 Exhibit A _.__-----1....._.____.__ --~.-.._-_._- -"--_.-. , . -. .... - -.--- -- COMMONWEALTH OF PENNSYL V ANlA COMPLAINT -, a -;:. c::> -- ~~ <e C'";l:,~ ~ '-;:;~~ - ""-C"> ~~~ ~ 0.,--.:.. ~.~ ~ ~- -~ . g.~. ::::. ;?~~- .. _J ., _...-: ':'n. -"- lJ' ....;..~ .> :;. GOVERNOR'S OFFICE PENNSYLVANIA HUMAN RELATIONS COMMISSION COMPLAINANT: TANA L, HALDEMAN v, Docket No. e. ...f~" .J) eE.b~ N~ fiPAIJ" 9 6 7 RESPONDENT: HARRISBURG AUTO AUCTION , 1, ~ The Complainant herein is: Name: Tana L. Haldeman Address: 93 N. Fourth St., Mt. Wolf, PA 17347 Counsel: Sara A. Austin, Esquire, Countess Gilbert Andrews, 29 N. Duke St., York, PA 17401. 2, The Respondent herein is: Name: Harrisburg Auto Auction Address: 1100 S. York St., Mechanicsburg, Cumberland County, PA, 17055 Counsel: Phillip L Zulli, Esquire, 1501 N, Front St., Harrisburg, PA 17102 3. The Complainant alleges that on or about 3/28/00, Respondent illegally and in violation of applicable la~ terminated her employment with Respondent, effective immediately, The chronology is as follows: a, Complainant, a 53 year old w~~~O&M.a~~~as Respondent's office manager for a number of years. Complainant continued to serve as Office Manager during various updates/ advances/revisions/changes by Respondent, whether to software, hardware, personnel, or other. b. During much of her 18 years of employment, and continuing through the Fall of 1999 and until termination of her employment, Complainant was subjected to unwelcome touching and comments by Respondent's President and owner, Stanley Hoynitski (hereinafter "Hoynitski"). The unwelcome touching included but was not limited to the areas of and surrounding Complainant's buttocks, breasts and neck, and included touching by Hoynitksi's hands and mouth. The unwelcome comments included but were not limited to Hoynitski's comments that he loved Complainant, wanted to go to bed with Complainant, and that "he gave good head". Complllinant continually made Hoynitski aware that the touching and comments were unwelcome, but same never stopped. c. Hoynitski made similar comments to other female employees, but such comments were not to the same degree nor of the same continuity as those directed to Complainant. d. During the Fall of 1999, Hoynitski asked Complainant several times to transfer her employment to another of his companies; Complainant declined the offer each and every time. e. On or about 3/24/00, Hoynitski again offered Complainant employment at one of his other companies, which offer included the same salary as she was earning at Respondent, gas reimbursement, and an apartment (allegedly due to the more distant location of the other company). Hoynitski even noted in writing the provisions of his offer. The proposed employment was for a position similar to that currently held by Complainant with Respondent. The offer was accompanied by Hoynitski's statements that neither he nor Complainant fit in at Respondent any more and that "they don't want us". Hoynitski further represented that Complainant's job with Respondent was in jeopardy, such that she should accept his offer of employment so that "he could take care of her" because "he loves her". f. On or about 3/27/00, Complainan~itski's offer of employment. Hoynitski's response was that Complainant JA~~~~a~'his other girlfriends" and that therefore he would put together a severance package for her. Later that day, Hoynitski 2 gave Complainant a choice between a severance package (the terms of which were laid out for Complainant by Hoynitski) or nothing if the package was declined. Hoynitski then told Complainant that the offer required the approval of his son, Todd Hoynitski, Respondent's Vice-President, and that the offer would be discussed upon Hoynitski's return the following Monday. g. Hoynitski's last comment, after making the offer, was that he would always take care of Complainant, that he loved her, and that Complainant should remember that "he gives good head". Hoynitski also gave to Respondent a paper with his name, home phone, and the statement "I give great head!!" noted thereon. h. On 3/28/00, Complainant went to work for Respondent as per her usual course. Complainant was sUmmoned by Respondent's General Manager, Lynn Weaver, who asked Complainant for her selection (acceptance of the severance package or nothing) because Todd Hoynitski had told him (W-eaver) to handle the matter. When told that Complainant would not accept the offer, Weaver asked her when she was planning to leave and suggested that day or 3/30/00. Shortly thereafter, Complainant packed up her desk and left (at approximately 10:00 a.m.). i. The reason given by Weaver to Complainant for her termination was that "she did not fit in," that Respondent had big plans to grow and that Complainant "holds them back", and that Complainant was "just not a good manager". j. None of the reasons given was true, in that Complainant had been growing with Respondent for years and had never received any discipline or other negative comment about her job as Office Manager. k. Complainant's employment was terminated solely because of her rejection of Hoynitski's sexual advances and her failure to accept employment that would continue to subject her to Hoynitski's sexual advances. 4. The allegations in Paragraph 3 hereof constitute an unlawful discriminatory practice or unlawful practice and are in violation of: (X) Pennsylvania Human Relations Act (AI' !f~~ 27,1955, P.L. 744, as amended) Section 5 Subsection(s) 141090 () Section 5.1 Subsection(s) 3 (') Section 5.2 Subsection(s) () Pennsylvania Fair Educational Opportunities Act (Act of July 17, 1961, P .L. 766 as amended). Section 4 Subsection(s) 5. The Complainant asserts that the alleged unlawful discriminatory practices: Are of a continuing nature that have persisted up to and including the present time. 6. No other action based on the aforesaid allegations has been instituted by the Complainant in any court or before any other commission within the Commonwealth of Pennsylvania except as follows: (X) None ( ) This charge will be filed with the P A Real Estate Commission under the P A Licensing and Registration Act Section 604. (X) This charge will be referred to EEOC for the purpose of duel filing. ( ) This charge will be referred to HUD for the purpose of duel filing. 7. The Complainant prays that the Respondent be required to: (a) Make the Complainant whole, including but not limited to an award of back pay, front pay, all benefits, and attorneys' fees/costs reasonably incurred; (b) Eliminate all unlawful discriminatory practices and procedures by Respondent. (c) Remedy the discriminatory effect of past practices and procedures by Respondent on Complainant's employment; (d) Take further affrrmative action necessary and appropriate to remedy the violation complained of herein; and (e) Provide such further relief as the Commission deems necessary and appropriate. (balance of page intentionally left blank) 141090880021 4 I hereby verify that the statements contained in this Complaint are true and correct to the best of my knowledge, inforrnation, and belief. I understand that false statements herein are made subject to the penalties of 18 PaC.S. Section 4904, relating to unsworn falsification to authorities. D~l1/()O Jo/1dJ. t. {jJ~ Tana L. Haldeman sara~ Sup. Ct. II) 59052 Countess Gilbert Andrews 29 N. Duke St. York, PA 17401 (717) 848-4900 Counsel for Complainant 141090880021 '. .-1 Tana L. Haldeman v. Harrisburg Auto Auction PHRC Docket No. B-96002-D BBOC Charge No. 17FA02857 Certificate of Service Pursuant to the requirements of 1 Pa. Code S 33.31, I hereby certify that I have this day served the foregoing Complaint by first class mail, postage prepaid, as follows: Harrisburg Auto Auction 1100 South York Street Mechanicsburg, PA 17055 Respondent Tana L. Haldeman 93 North Fourth Street Mt. Wolf, PA 17347 Complainant Sara A. Austin, Bsq. Countess Gilbert Andrews 29 North Duke Street York PA 17401-1282 Complainant Attorney Dated this ~g day of , 206L- Regina Young r.~""-,,,~ 0/0. 141090880021 Exhibit B . COMMONWEALTH OF PENNSYL VANIA GOVERNOR'S OFFICE 00 OCT -2 " AH II: 18 PENNSYLVANIA HUMAN RELATIONS COMMI~~~,i~~1'IVfO iJ;' . d(l. 'i'Cr., Ct/1r/'r . ,J OHA,'';i..) CU.'1" . ..t rfr:;, ., COMPLAINT COMPLAINANT: TANA L. HALDEMAN v. Docket No. t'. -- eJl 3 {J "3 - 0 0 EEOCChargeNo.17FDEA305J 6 RESPONDENT: HARRISBURG AUTO AUCTION (related to Docket E-96002-D EEOC Charge 17F A02857) 1. The Complainant herein is: Name: Tana L. Haldeman Address: 93 N. Fourth St., Mt. Wolf, PA 17347 Counsel: Sara A. Austin, Esquire, Countess Gilbert Andrews, 29 N. Duke St., York, P A 17401. 2. The Respondent herein is: Name: Harrisburg Auto Auction Address: 1100 S. York St., Mechanicsburg, Cumberland County, P A, 17055 Counsel: Brenda L. Gacki, Esquire, 210 Walnut St., P.O. Box 11963, Harrisburg, PA 171 08-1963. 3. The Complainant incorporates by reference herein the allegations set forth in her Complaint filed 6/12/00 and indexed to PHRC Docket E-96002-D, EEOC Charge Number l7FA02857. Further, Complainant alleges that Respondent has been retaliating against her for the filing of the other Complaint, such retaliation including but not limited to spreading false rumors about actions allegedly taken by Complainant14rW&II&i/lft6ted by Respondent, which rumors have in the past and will continue in the future to hurt Complainant in her search for employment and, additionally, harm Complainant in the eyes of her friends, family, the community, and potential future employers. 4. The allegations in Paragraph 3 hereof constitute an unlawful discriminatory practice or unlawful practice and are in violation of: (X) Pennsylvania Human Relations Act (Act of October 27, 1955, P.L. 744, as amended) Section 5 Subsection(s) ( ) Section 5.1 Subsection(s) ( ) Section 5.2 Subsection( s) ( ) Pennsylvania Fair Educational Opportunities Act (Act ofJuly 17,1961, P.L. 766 as amended). Section 4 Subsection(s) 5. The Complainant asserts that the alleged unlawful discriminatory practices: Are of a continuing nature that have persisted up to and including the present time. 6. No other action based on the aforesaid allegations has been instituted by the Complainant in any court or before any other commission within the Commonwealth of Pennsylvania except as follows: Complaint filed 6/12/00 as to discriminatory termination of employment, said Complaint indexed to PHRC Docket E-96002-D (EEOC Charge Number 17F A02857) ( ) ( ) (X) ( ) 7. (a) (b) None This charge will be filed with the P A Real Estate Commission under the P A Licensing and Registration Act Section 604. This charge will be referred to EEOC for the purpose of duel filing. This charge will be referred to HUD for the purpose of duel filing. The Complainant prays that the Respondent be required to: Make the Complainant whole, including but not limited to an award of back pay, front pay, all benefits, an14Y~rr;""' "A~./costs reasonably incurred; Eliminate all unlawful discrum~!~ij~actices and procedures by Respondent. 2 " , (c) Remedy the discriminatory effect of past practices and procedures by Respondent on Complainant's employment; (d) Take further affirmative action necessary and appropriate to remedy the violation . complained of herein; and (e) Provide such further relief as the Commission deems necessary and appropriate. I hereby verify that the statements contained in this Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Cf -;'<3-00 Date ~ 12 <<k~~~ Tana L. Haldeman ~ Sara A. Austin Sup. Ct. ill 59052 Countess Gilbert Andrews 29 N. Duke St. York, PA 17401 (717) 848-4900 Counsel for Complainant 141090880021 3 , , ,.. . .8-; . Tana L. Haldeman v. Harrisburg Auto Auction PHRC Docket No. E-97308-D EEOC Charge No. 17FA10538 Certif"lC8te of Service Pursuant to the requirements of 1 Pa. Code ~ 33.31, I hereby certify that I have this day served the foregoing COIp.p1aint by first class mail, postage prepaid, as follows: Harrisburg Auto Auction 11 00 South York Street Mechanicsburg, PA 17055 Respondent Tana L. Haldeman 93 North Fourth St. Mt. Wolf, PA 17347 Complainant Sara A. Austin Countess-Gilbert-Andrews 29 North Duke Street York PA ~ 7..':;.i-1282 Complainant Attorney Dated this 'd.'R day o~ 2000. P,""'t.V"'.Jll~' Regina Young 4/98 141090880021 " . . I" . ,'. . CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon Counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 Dated: May 14, 2002 KEEFER WOOD ALLEN & RAHAL, LLP By ~-,r Charles W. Rubendall II Cl N c' 'q ~ .'" - c" ~ p": ....., .~.:; ;.C!. N c::J ~~:;:A J.. , -' ~":_~: c:: . u) r~~1 .-.. ;~1 :~:, ';:::; 141090880021 Stacia N. Gates, Prothonotary York County Courthouse 28 East Market Street York, PA 17401 HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RUBENDALL II ROBERT L. WELDON EUGENE E. PEPINSKY. .JR. ..JOHN H. ENOS m GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE .JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS CRAIG A. LONGYEAR DONALD M. LEWlsm BRIDGET M. WHITLEY .,JOHN A. FEICHTEL ANN McGEE CARBON ELIZABETH ..J. GOLDSTEIN BARBARA A. GALL KEEFER WOOD ALLEN & RAHAL, 210 WALNUT STREET P. O. BOX 11963 HARRISBURG. F'A 17108-1963 LLP ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C. HARRY PHONE (717) 255-8000 FAX (717) 255-8050 WEST SHORE O"F'ICE: 41S F ALLOWFIELD ROAD CAMP HILL, Fl'A 17011 1717J 612-seoo [IN No. 23-0716135 WRITER'S CIRECT DIAL: May 14, 2002 255-8010 E-mail: crubendal1@keeferwood.com 2nd. Floor Fax: 255-8003 <:) o ~, N -n :I: C~ :::."'" -< N ~:J -D :,.;., ".~ i;'~ Re: Haldeman v. Harrisburg Auto Auction No. 2002-SU-01522-01 -. Dear Ms. Gates: Enclosed for filing among the papers of this action is defendant's preliminary objections to plaintiff's amended complaint (in duplicate). A copy of this item is being sent to counsel for plaintiff this date. Thank you for your anticipated cooperation. Very truly yours, KEEFER WOOD ALLEN C~ R~bendall By LP II CWRII / sg Enclosure cc: Sara A. Austin, Esquire (w/encl.) , , , , J IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ( ..... = = ...., ::Il: "" -< 1 _I .,t) " C) ('I' ,..-.... ,." ,'::? TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED -<~: 0.: ::o~ :;:0:;- .. (- -0 -0, :t> (" .1 -J- r.-j r:-t vs. w ) _I .< -, " NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fall to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOu. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of The York County Bar Association The York County Bar Center 13 7 East Market Street York, Pennsylvania 17401 Telephone: (717) 854-8755 A VISO USTED HA SInO DEMANDADO EN LA CORTE. SI USTED DESEA DEFENDERSE DE LAS QUEJASEXPUESTAS EN LAS PAGINAS SIGUIENTES, DEBE TOMAR ACCION DENTRO DE VEINTE (20) DIAS A PARTIR DE LA FECHA EN QUE RECffiIO LA DAMANDA Y EL A VISO. USTED DEBE PRESENTAR COMP ARECENCIA ESCRITA EN PERSONA OR POR ABOGADO Y PRESENTA EN LAW CORTE POR ESCRITO SUS DEFENSAS CJSUS OBJECIONES A LAS DEMANDAS EN SU CONTRA. SE LE A VISA QUE SI NO SE DEFlENDA, ~DE PROCEDER SIN USTED Y LA CORTE PUEDE DECIDIR EN SU CONTRA 'S1NJ~A4.tISO 0 NOTIFICACrrON POR CUALQUIER DINERO RELCAMADO EN LA DEMANDA 0 POR CUALQUIER OTRO BACKGROUND OF CLAIMS 6. Plaintiff was Defendant's office manager for approximately eighteen (18) years. Plaintiff continued to serve as Office Manager during various updates, advances, revisions, and/or changes by Defendant, whether to software, hardware, personnel, or other. 7. During much of her employment with Defendant, and continuing through the Fall of 1999 and until termination of her employment, Plaintiff was subjected to unwelcome touching and comments by Defendant's President and owner, Stanley Hoynitski (hereinafter "Hoynitski"). 8. The unwelcome touching included but was not limited to the areas of and surrounding Plaintiffs buttocks, breasts and neck, and included touching by Hoynitski's hands and mouth. 9. The unwelcome comments included but were not limited to Hoynitski's comments that he loved Plaintiff, wanted to go to bed with Plaintiff, wanted "to get into her knickers", and that "he gave good head". I O. Plaintiff continually made Hoynitski aware that the touching and comments were unwelcome, but same never stopped. 11. Hoynitski made similar comments to other female employees, but such comments were not to the same degree nor of the same continuity as those directed to Plaintiff. 12. During the Fall of 1999, Hoynitski asked Plaintiff several times to transfer her employment to another of his companies, supposedly because, due to her age, Plaintiff was unable to keep up with changes in and/or to Defendant's business operations; Plaintiff declined the offer each and every time. 13. On or about 3/24/00, and for the same alleged reason as set forth in Paragraph 12, supra, Hoynitski again offered Plaintiff employment at one of his other companies, which offer included the same salary as she was earning with De)e~J!~,8 S~~ ~Jimbursement, and an 2 apartment (allegedly due to the more distant location of the other company). The offer described in this paragraph is hereinafter referred to as the "Offer". 14. Hoynitski even noted in writing the provisions of the Offer. The 'proposed employment was for a position similar to that currently held by Plaintiff with Defendant. The Offer was accompanied by Hoynitski's statements that "neither he nor Plaintiff fit in any more" and that "they don't want us". 15. Hoynitski further represented that Plaintiff's job with Defendant was in jeopardy, such that she should accept the Offer so that "he could take care of her" because "he loves her". 16. On or about 3/27/00, Plaintiff declined Hoynitski's Offer. 17. Hoynitski's response to Plaintiff s rejection ofthe Offer was that Plaintiff was "just like his other girlfriends" and that he would therefor put together a severance package for her. 18. Later that day, Hoynitski gave Plaintiff a choice between accepting a severance package (the terms of which were laid out for Plaintiff by Hoynitski) or being offered nothing if the severance package was declined. 19. Hoynitski then told Plaintiff that the severance package required the approval of his son, Todd Hoynitski, Defendant's Vice-President, and that the package would be discussed upon Hoynitski's return the following Monday. 20. Hoynitski's last comment, after making the severance package offer, was that he would always take care of Plaintiff, that he loved her, and that Plaintiff should remember, "he gives good head". 21. Hoynitski also gave to Defendant a document with his name, home phone, and the statement "I give great head! !" noted thereon. 22. On 3/28/00, Plaintiff went to work fo~tlMA~W' per her usual course. 3 23. Plaintiff was summoned by Defendant's General Manager, Lynn Weaver, who asked Plaintiff for her selection (acceptance of the severance package or nothing) because Todd Hoynitski had told him (Weaver) to handle the matter. 24. When told that Plaintiff would not accept the severance offer, Weaver asked her when she was planning to leave and suggested that day or 3/30/00. 25. Shortly thereafter, Plaintiff packed up her desk and left (at approximately 10:00 a.m.). 26. The reasons given by Weaver to Plaintiff for her termination was that "she did not fit in," that Defendant had big plans to grow and that Plaintiff "holds them back", and that Plaintiff was "just not a good manager". 27. Plaintiff was 53 years of age at the time her employment was terminated. 28. Plaintiff believes, and therefor avers, that none of the reasons given was true, in that Plaintiff had been growing with Defendant for years and had never received any discipline or other negative comment about her job as Office Manager. 29. Plaintiff believes, and therefor avers, that her employment was terminated solely due to her age and/or because of her rejection of Hoynitski's sexual advances and her failure to accept employment that would continue to subject her to Hoynitski's sexual advances. 30. On June 12,2000, Plaintiff timely filed a charge of discrimination against Defendant with the Pennsylvania Human Relations Commission, which charge was dual-filed with United States Equal Employment Opportunity Commission. Thereafter, Plaintiff also filed a charge of retaliation against Defendant with both the PHRC and EEOC. 31. After Plaintiff s initial PHRC/EEOC filing, Defendant began spreading false rumors about actions allegedly taken (or omitted to be taken) by Plaintiff while she was employed by Defendant. 127090800147 4 32. The false rumors were spread by Defendant to persons with whom Plaintiff had worked while employed by Defendant, and also to Plaintiffs friends andJor family. 33. The false rumors spread by Defendant were intended to cast Plaintiff in a false light and to harm her chances of future employment. 34. There has been no decision or ruling made by either the PHRC or EEOC concerning the discrimination charge filed with said agencies. Count I - Pennsvlvania Human Relations Act 35. Plaintiff incorporates by reference Paragraphs 1-34, inclusive, as if set forth at length. 36. The above allegations constitute an unlawful discriminatory practice in violation ofthe Pennsylvania Human Relations Act, 24 P. S. S951, et. seq. (hereinafter the npHRAn). 37. The above allegations also constitute illegal retaliation under the PHRA. WHEREFORE, Plaintiff, Tana L. Haldeman, respectfully requests that this Honorable Court take the following action: a) Make Plaintiff whole, including but not limited to, an award of back pay, front pay, andJor reimbursement of attorney fees; b) Eliminate all unlawful discriminatory 'practices and procedures by Defendant; CJ Remedy the discriminatory effect of past practices and procedures; d) Take further affirmative action as necessary and appropriate to remedy the violations described herein; and e) For such other relief as maybe just and proper. Count II - Al!e Discrimination in Emolovment Act 38. Plaintiff hereby incorporates by reference Paragraphs 1-34 above as if set forth at 12709~ 800147 length. 5 39. The above allegations constitute an unlawful discriminatory practice in violation of the Age Discrimination in Employment Act, 29 USC 9621, et. seq. (hereinafter the "ADEA"). 40. The above allegations also constitute illegal retaliation under the ADEA. WHEREFORE, Plaintiff, Tana L. Haldeman, respectfully requests that this Honorable Court take the following action: a) Make Plaintiff whole, including but not limited to, an award of back pay, front pay, and/or reimbursement of attorney fees; b) Eliminate all unlawful discriminatory practices and -procedures by Defendant; c) Remedy the discriminatory effect of past practices and procedures; d) Take further affirmative action as necessary and appropriate to remedy the violations described herein; e) Enter an award for liquidated and punitive damages; f) Enter an award for such pay and/or benefits that Plaintiff should have received after her termination had she been allowed to perform her employment; and g) For such other equitable and legal relief as may be just and proper. Count III - Title VII 41. Plaintiff hereby incorporates by reference Paragraphs 1-34 above as if set forth at length. 42. The above allegations constitute an unlawful discriminatory -practice (quid pro quo sexual harassment) in violation of Title VII ofthe Civil Rights Act of 1964,42 USC 92000e, et. seq. (hereinafter "Title VII "). WHEREFORE, Plaintiff, Tana L. Haldeman, respectfully requests that this Honorable Court take the following action: 127090800147 6 a) Make Plaintiff whole, including but not limited to, an award of back pay, front pay, and/or reimbursement of attorney fees; b) Eliminate all unlawful discriminatory practices and procedures by Defendant; c) Remedy the discriminatory effect of past practices and procedures; d) Take further affirmative action as necessary and appropriate to remedy the violations described herein; e) Enter an award for liquidated and punitive damages; f) Enter an award for such pay and/or benefits that Plaintiff should have received after her termination had she been allowed to perform her employment; and g) For such other equitable and legal relief as may be just and proper. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: ~ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York,PA 17401 (717) 845-3674 Supreme Ct. l.D. #59052 127090800147 7 VERIFICATION The undersigned does hereby affirm that the facts contained in the foregoing Amended Complaint are true and correct to the best of her knowledge, information and belief. This statement is made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. DATED: s/t,/o;x i,/II/t t #ft~h1I'YLJ Tana L. Haldeman 127090800147 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the foregoing document to be served on the following person in the manner indicated: By First Class United States Mail on: Charles W. Rubendall, II, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP By: ~u.~a.. No . Doll, Paralegal Dated: May 7,2002 121090800141 ~. $/ ,=.... TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. o 2002-SU-01522-01~ ~ CO) '-:;:; ,,'. C) ';Q -,C " c/..,., N ,;n~ <J,1 ~- :-"'-'0 :uc: :l?' tfl [T\ 1'0' .c:- BRIEF IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS I. Procedural History and Statement of Facts. Plaintiff Tana L. Haldeman filed her complaint in this action on March 22, 2002, alleging three (3) separate causes of action: count I, for sexual harassment, age discrimination, and unlawful retaliation under the Pennsylvania Human Relations Act, 24 P.S. ~951 et Beq. ("PHRA"); count II, for age discrimination and unlawful retaliation under the Age Discrimination in Employment Act, 29 U.S.C. ~621 et Beq. ("ADEA")'; and count III, for unlawful discrimination ("quid pro quo sexual harassment") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ~2000e, et Beq. ("Title VII"). Defendant, Harrisburg Auto Auction, filed its preliminary objections on April 15, 2002. This brief supports defendant's preliminary objections. 115090 i401J6 1/ Due to an apparent typographical error, the ADEA is mistakenly referred to in plaintiff's complaint as uAREA." ~ " ::Y- '-'-' .. o "'" .g,;o -.-T'; ..,,/:",> '<:b'rn t~~:2 ~tT'I {~,o {, -,,~ -. ....'..", II. Questions Presented.' A. Should plaintiff's age discrimination claims under the PHRA (count I) and ADEA (count II) be dismissed due to plaintiff's failure to submit any such claim in proceedings before the PHRC, and thereby exhaust her available administrative remedies? Suggested answer: Yes. B. Should plaintiff's retaliation claims be dismissed as legally insufficient, due to plaintiff's failure to identify any alleged retaliation in her complaint? Suggested answer: Yes. C. Should the action be dismissed for improper venue in York County, or transferred to the Cumberland County Court of Common Pleas, where all the alleged Occurrences purportedly took place? Suggested answer: Yes. III. Araument. A. Plaintiff's Age Discrimination Claims Should Be Dismissed due to Plaintiff's Failure to Submit Such Claim in Proceedings Before the PHRC, and Thereby Exhaust Available Administrative Remedies. In paragraphs 29 and 35 through 37 of her complaint, plaintiff attempts to state a claim based upon alleged age discrimination. Plaintiff's claim is legally insufficient and must be dismissed pursuant to Pa. R. Civ. P. l028(a) (4) because 'j upon further reflection and analysis of pertinent case law, defendant her~b~ with~raws part III of its prelimin~~n~~1~4~lus (failure to exhaust admlnlstratlve remedles due to absence of V on by PHRC) . - 2 - ....._" plaintiff filed her complaint herein before exhausting her administrative remedies. Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 921 (1989); Schweitzer v. Rockwell Intern., 402 Pa. Super. 34, 586 A.2d 383, 386 (1990), app. denied, 529 Pa. 635, 600 A.2d 954 (1991). Although plaintiff avers in her complaint (~30) that she filed a "charge of discrimination" against defendant in the Pennsylvania Human Relations Commission ("PHRC"), that "charge" was confined to her sexual harassment claim, and made no mention whatsoever of purported age discrimination. (Preliminary objections, ~I(2)).3 Consequently, no age discrimination claim was first lodged against defendant by plaintiff with the PHRC or the Equal Opportunity Employment Commission ("EEOC"), and those agencies never had occasion to review plaintiff's allegations. Therefore, the Court should sustain defendant's preliminary objection to Counts I and II of plaintiff's complaint and dismiss the action to the extent that any relief is sought on the basis of alleged age discrimination. 3/ Since the instant brief is being filed prior to defendant's receipt of any reply to the verified preliminary objections, defendant is proceeding on the assumption this fact will be admitted by plaintiff. Where there is no dispute regarding the facts underlying a juriSdictional issue (such as failure to exhaust administrative remedies), the Court may resolve such issue without receiving further evidence. Snyder v. Pf~NK~~1~tr6~SSoc. of School Retirees, 389 Pa. Super. 261, 266, 566 A.2d 1235, 1l~~~U~'Pf~ - 3 - ...'...... B. Plaintiff's Retaliation Claims Should Be Dismissed as Legally Insufficient; Plaintiff Has Failed To Identify Anv Alleqed Retaliation in Her Complaint. In paragraph 37 of plaintiff's complaint (count II), plaintiff alleges that she has been the victim of retaliation and seeks a recovery for same under the ADEA, which generally proscribes discrimination on the basis of age. However, no facts supporting a claim for retaliation in connection with defendant's purported age discrimination have been averred in the complaint. Pa. R. Civ. P. 1019 requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Thus, the complaint must not only apprise the defendant of the nature of the claim being asserted, but it must also summarize the essential facts that support the claim. Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001); Miketic v. Baron, 450 Pa. Super. 91, 104, 675 A.2d 324, 330 (1996). Moreover, under Rule 1019(f), "[a]verments of time [and] place ". shall be specifically stated." The elements of a "retaliation" claim in the age discrimination context are set forth in the ADEA as follows: It shall be unlawful for an employer to discriminate against any of his employees ... because such individual... has opposed anf1sn9074o13l made unlawful - 4 - ,...~, by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. ~ 623(d) (emphasis added). Thus, the quintessential "retaliation" claim rests upon an allegation that the employer has taken adverse action against an employee in response to the filing by the employee of a discrimination complaint with the EEOC or parallel state agency. See, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997). To establish a prima facie case of retaliation under the ADEA, plaintiff must show that: (1) she engaged in a protected employee activity (such as the filing of the discrimination charge in Robinson, supra); (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action. Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001). Plaintiff's complaint confirms that her employment ended on March 28, 2000, and that she filed a charge of discrimination with the PHRC thereafter, on June 12, 2000. (Complaint, ~~ 22- 25, 30). Thus, there are no facts in the complaint supporting the conclusion that plaintiff SUft~'r74011ferse employment action - 5 - "",'-'-~ after or contemporaneous with ... protected activity" relating to age discrimination. Therefore, plaintiff has failed to state a legally sufficient claim for retaliation under the ADEA. Even if plaintiff's ADEA claim is not otherwise dismissed due to her failure to exhaust administrative remedies (see above), count II should be dismissed to the extent plaintiff purports to seek remedies for retaliation in paragraph 37 of her complaint. C. The Action Should Be Dismissed for Improper Venue in York County, or Transferred to the Cumberland County Court of Common Pleas, Where All the Alleged Occurrences PurDortedlv Took Place. Plaintiff's complaint indicates that every alleged act of discrimination occurred at defendant's place of business in Lower Allen Township, Cumberland County. (Complaint, ~~ 6-29) . Plaintiff alleges no basis for venue in York County. Since defendant is a "corporation or similar entity," plaintiff's residence in York County is not a legally sufficient basis for venue under Pa. R. Civ. P. 1006(b) and 2179. The corporate venue rule was designed, inter alia, to "assure that the county selected had a substantial relationship to the controversy between the parties and was thereby a proper forum to adjudicate ~ 1150~0740136 - 6 - ,'.-.." the dispute." County Canst. Co. v. Livengood Canst. Corp., 393 Pa. 39, 44, 142 A.2d 9 (1958). This action should be dismissed, pursuant to Pa. R. Civ. P. 1028(a) (1), or transferred to the Court of Common Pleas of Cumberland County for further proceedings, if it is not dismissed entirely pursuant to the foregoing objections. IV. Conclusion. For all the foregoing reasons, defendant respectfully requests that its preliminary objections be sustained, and that plaintiff's complaint be dismissed. In the alternative, the case should be transferred to the Court of Common Pleas of Cumberland County for further proceedings, if it is not dismissed entirely pursuant to the foregoing objections. Respectfully submitted, Dated: April 24, 2002 KEEFER WOOD ALLEN & RAHAL, LLP By c~~ Attorneys for defendant - 7 - /,"'", CERTIFICATE OF SERVICE I, Charles w. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 KEEFE~O:D;LE~? By LJ4l1- Charles w. Rubendall II LLP Dated: April 24, 2002 n o -<h Q:;o:J' :::o~ :;'>;';:r: =-r,o -"'0 pi]; r" :=0 . ""0: ::lO N U1 o ... ." n P1 CJ;o .""" "U.., 7)fT1 0.- .-;< _rn 00 :.....:: C) _~~_l .' ~ t...:> . 1150907401J6 ,.." ",on VIA FEDERAL EXPRESS HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RUBENDALL II ROBERT L. WELDON EUGENE: E. PEPINSKY, .JR. .JOHN H. ENOSm GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE .JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN l. GROSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS CRAIG A. LOHGYEAR DONALD M. LEWISm BRIDGET M. WHITLEY ..JOHN A. FEICHTEL ANN McGEE CARBON ELIZABETH ..J. GOLDSTEIN BARBARA A. GALL KEEFER WOOD ALLEN & RAHAL. 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 LLP ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C. HARRY PHONE (717) 255-8000 FAX 17171 255-8050 WEST SHORE OFFICE: 41!5 FALLOWFIELD ROAD CAMP HILL. PA' 17011 17171812-5600 EIN No. 23-0716135 WRITER'S DIRECT DIAL: April 24, 2002 255-8010 E-mail: crubendall@keeferwood,com 2M Floor Fax: 255-8003 \~ l N UI .0 ..., -n c; -<@: 0-) :;o~ '"1C '- ~ - . 0 -0 ,- Y"u; roOt"'! :2i r" 0:;0 "'"O{'li ~('"') ;OfT' 0.:2. "C) :::;rn ::;; cjO :r.. t2 '::~ r~,) J-'" ".- Stacia N. Gates, Prothonotary York County Courthouse 28 East Market Street York, PA 17401 Re: Haldeman v. Harrisburg Auto Auction No. 2002-SU-01522-01 Dear Ms. Gates: Enclosed for filing among the papers of this action is defendant's brief in support of preliminary objections (in duplicate). A copy of this item is being sent to counsel for plaintiff this date. Thank you for your anticipated cooperation. Very truly yours, KEEFER WOOD ALLEN '~ By Ch~Jbendall II CWRII/sg Enclosure cc: Sara A. Austin, Esquire (w/encl.; via first-class mail) ..."-'''' . . @ TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA\ Plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-SU-01522cOt~ DEFENDANT'S PRELIMINARY OBJECTIONS NOW COMES defendant, Harrisburg Auto Auction, by and through its counsel, Keefer Wood Allen & Rahal, LLP, to state its preliminary objections to plaintiff's complaint, as follows: I. Demurrer as to Aqe Discrimination Claim. 1. In paragraphs 29 and 35 through 37, plaintiff sets forth a claim based upon alleged age discrimination. 2. Plaintiff's claim in this regard is legally insufficient and can be dismissed pursuant to Pa. R. Civ. P. 1028(a) (4) because no age discrimination claim was first lodged against defendant by plaintiff with the Pennsylvania Human Relations Commission ("PHRC") or the Equal Opportunity Employment Commission ("EEOC"). 3. Thus, plaintiff has failed to exhaust her administrative remedies with regard to her age discrimination claim. WHEREFORE, defendant . respect~g~~~61~~ests this Honorable Court to grant its demurrer and dismiss plaintiff's complaint to -- the extent that any relief is sought on the basis of age discrimination. II. Demurrer as to Retaliation Claim. 4. In paragraph 37 of plaintiff's complaint, plaintiff alleges that she has been the victim of retaliation and seeks a recovery under the Age Discrimination in Employment Act, 29 D.S.C. ~ 621. 5. No facts supporting a claim for retaliation have been averred in the complaint, however. Indeed, the complaint is devoid of any description of any alleged retaliation against plaintiff on any basis whatsoever. 6. Plaintiff's claim is legally insufficient in this regard and can be dismissed pursuant to Pa. R. Civ. P. 1028 (a) (4) . WHEREFORE, defendant respectfully requests this Honorable Court to grant its demurrer and dismiss plaintiff's complaint to the extent that any relief is sought on the basis of retaliation. III. Demurrer for Failure To Exhaust Administrative Remedies. 7. Plaintiff filed a sexual harassment/discrimination claim against defendant with the PHRC in June 2000, designated E- 96002-D. See paragraph 30 of plaintiff's complaint. . 1 omo 670441 - 2 - .....~,.'* 8. As recited in paragraph 31 of plaintiff's complaint, however, no ruling has been obtained from the PHRC or the EEOC. 9. The Pennsylvania Human Relations Act provides, at 43 P.s. !l 962 (c) (2), that a civil action "shall be filed within two years after the date of notice from the Commission closing the complaint." 10. Plaintiff has failed to exhaust her administrative remedies, that is, by failing to first obtain a decision from the PHRC or the EEOC. 11. Thus, her complaint is legally insufficient and can be dismissed pursuant to Pa. R. Civ. P. 1028(a) (4). WHEREFORE, defendant respectfully requests this Honorable Court to grant its demurrer and dismiss plaintiff's complaint. IV. Obiection Raisinq Improper Venue. 12. Plaintiff alleges no basis for venue in York County. 13. Plaintiff's residence in York County is not a legally sufficient basis for venue. 14. Review of plaintiff's complaint, particularly paragraphs 6 through 29, reveals that the claimed acts of discrimination all occurred at defendant's place of business in Lower Allen Township, Cumberland County. ~ 1060~0 670441 - 3 - ...,...... 15. This action should be dismissed, pursuant to Pa. R. Civ. P. 1028(a) (1), and transferred to the Court of Common Pleas of Cumberland County for further proceedings, if it is not dismissed entirely pursuant to the foregoing objections. WHEREFORE, defendant respectfully requests this Honorable Court to dismiss the complaint on grounds of improper venue and enter an order transferring it to the Court of Common Pleas of Cumberland County, Pennsylvania, if it is not dismissed for legal insufficiency pursuant to defendant's other preliminary objections. Respectfully submitted, Dated: April 12, 2002 KEEFER WOOD ALLEN & RAHAL, LLP ~r By Charles W. Rubendall II I.D. # 23172 Stephen L. Grose I.D. # 31006 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010 and 255-8052 Attorneys for defendant 106090670441 - 4 - ~~- VERIFICATION The undersigned, Charles W. Rubendall II, hereby verifies and states that: 1. He is one of the attorneys for defendant herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing preliminary objections are known to him and not exclusively to his client; 4. The facts set forth in the foregoing preliminary objections are true and correct to the best of his knowledge, information, and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. ~~~ Charles W. Rubendall II Dated: April 12, 2002 1060~067044j ""-"'''~ CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 , ~ .\ c:) ':) '"' ~.:... :.,', KEEFER;OO~;;~ r" By VVV1) Charles W. Rubendall II Dated: April 12, 2002 . 1060~0 670441 HEATH l. ALLEN N. DAVID RAHAL CHARLES W. RUBENDALL II ROBERT L. WELDON EUGENE E. PEPINSKY, ..JR. ..JOHN H. ENOS m GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE ..JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS CRAIG A, LONGYEAR DONALD M. LEWISm BRIDGET M. WHITLEY ..JOHN A, FEICHTEL ANN MeGEE CARBON ELIZABETH ..J. GOLDSTEIN BARBARA A. GALL ............ KEEFER WOOD ALLEN & RAHAL. 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 II P ESTABLISHED IN le78 OF COUNSEL: SAMUEL C. HARRY PHONE (717) 255-8000 F'AX 17171 255-8050 WEST SHORE OFFICE:: 418 F ALL.OWFIELD ROAD CAMP HILL, PA 17011 1717' 6/2-15800 EIN No. 23-0716/38 WRITER'S DIRECT DIAL: April 12, 2002 255-8010 E~mail: crubendall@keeferwood.com 2nd. Floor Fax, 255-8003 VIA FEDERAL EXPRESS Stacia N. Gates, Prothonotary York County Courthouse 28 East Market Street York, PA 17401 Re: Haldeman v. Harrisburg Auto Auction No. 2002-SU-01522-01 Dear Ms. Gates: Enclosed for filing among the papers of this action is:t:he' original of defendant's preliminary objections to plaintiff's complaint. A second copy of this item is enclosed. Would you please date-stamp the second copy and return it to us in the envelope that we have provided for this purpose? Copies of this letter and of counsel for plaintiff this date. cooperation. our filing are being sent to Thank you for your anticipated Very truly yours, :EFER(;;;t_:r' Charles W. Rubendall II CWRIII sg Enclosure cc: Sara A. Austin, Esquire (w/encl.; via first-class mail) , @INTHECOURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Harrisburg Auto Auction and certifY that I am authorized to do so. _( GJ.If- , Charles W. Rubendall, II, Esquire KEEFER, WOOD, ALLEN AND RAHAL, LLP 210 WaInut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Dated: 3{'Z.~/O 1- 091090550474 \'t',r ,. !I:';' ~J -;-i * ,'-f ",r of tot -- ~, '" ~ = ....~ -< C<. ;-....: ,~? .~- '. - .::- C7) ~. ~ IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No. 2002-SU- -OJ vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fall to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of The York County Bar Association The York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telephone: (717) 854-8755 o N :x -,.,.\~-; ~ c~ ~:~ N -;G ::. f"oo.J ::>: -. {..." -q '.-.. :;;;'c. CCj ..., :x rq ~ N " Q -: 084090520271 C\~, AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of York County, Pennsylvania, is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact the county at (171) 771-9099. For those with a hearing impairment, please contact the Deaf Center at (717) 848-2585, ext. 329 or ext. 342 TDD. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 0~4090 520271 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No. 2002-SU- vs. ,~ C N : JURY TRIAL DEMANDED (' 3 "'" -< (". :;0 C~L N ::U~. N COMPLAINT ='" -, -0 d "'~S ~ AND NOW, TO WIT, this 22n day of March, 2002, comes the Plaintif{Tlllia IT.'i' N 0- C " Haldeman, by her attorneys, Blakey, Yost, Bupp & Rausch, LLP and files the within Complaint, '. HARRISBURG AUTO AUCTION, Defendant as follows: PARTIES I. Plaintiff, Tana L. Haldeman (hereinafter referred to as "Plaintiff') is an adult individual with a mailing address of93 N. Fourth Street, P.O. Box 100, Mt. Wolf, Pennsylvania 17347. 2. The Defendant in the above-captioned action, Harrisburg Auto Auction (herein- after "Defendant"), is a corporation and business entity authorized by the Commonwealth of Pennsylvania with a main office at 100 S. York St., Mechanicsburg, Pennsylvania 17055. JURISDICTION 3. This Court has original jurisdiction pursuant to 24 P.S. g951 et. seq. as and for claims under the Pennsylvania Human Relations Act. 4. This Court has original jurisdiction pursuant to 29 U.S.C. g621 et. seq. as and for claims under the Age Discrimination in Employmentl1i4~ 9 0 5 ~ 0 ~ 71 5. This Court has original jurisdiction pursuant to 42 U.S.c. S2000e as and for claims under Title VII of the Civil Rights Act of 1964. BACKGROUND OF CLAIMS 6. Plaintiff was Defendant's office manager for approximately eighteen (18) years. Plaintiff continued to serve as Office Manager during various updates, advances, revisions, and/or changes by Defendant, whether to software, hardware, personnel, or other. 7. During much of her employment with Defendant, and continuing through the Fan of 1999 and until termination of her employment, Plaintiff was subjected to unwelcome touching and comments by Defendant's President and owner, Stanley Hoynitski (hereinafter "Hoynitski"). 8. The unwelcome touching included but was not limited to the areas of and surrounding Plaintiffs buttocks, breasts and neck, and included touching by Hoynitski's hands and mouth. 9. The unwelcome comments included but were not limited to Hoynitski's comments that he loved Plaintiff, wanted to go to bed with Plaintiff, wanted "to get into her knickers", and that "he gave good head". 10. Plaintiff continually made Hoynitski aware that the touching and comments were unwelcome, but same never stopped. II. Hoynitski made similar comments to other female employees, but such comments were not to the same degree nor of the same continuity as those directed to Plaintiff. 12. During the Fan of 1999, Hoynitski asked Plaintiff several times to transfer her employment to another of his companies; Plaintiff declined the offer each and every time. 13. On or about 3/24/00, Hoynitski again offered Plaintiff employment at one of his other companies, which offer included the same sal~~~~~2D2J darning at Defendant, gas reimbursement, and an apartment (allegedly due to the more distant location of the other company). The offer described in this paragraph is hereinafter referred to as the "Offer". 14. Hoynitski even noted in writing the provisions of the Offer. The 'proposed employment was for a position similar to that currently held by Plaintiff with Defendant. The Offer was accompanied by Hoynitski's statements that "neither he nor Plaintiff fit in any more" and that "they don't want us". 15. Hoynitski further represented that Plaintiff's job with Defendant was in jeopardy, such that she should accept the Offer so that "he could take care of her" because "he loves her". 16. On or about 3/27/00, Plaintiff declined Hoynitski's Offer. 17. Hoynitski's response to Plaintiff s rejection of the Offer was that Plaintiff was 'Just like his other girlfriends" and that he would therefor put together a severance package for her. 18. Later that day, Hoynitski gave Plaintiff a choice between accepting a severance package (the terms of which were laid out for Plaintiff by Hoynitski) or being offered nothing if the severance package was declined. 19. Hoynitski then told Plaintiff that the severance package required the approval of his son, Todd Hoynitski, Defendant's Vice-President, and that the package would be discussed Upon Hoynitski's return the following Monday. 20. Hoynitski's last comment, after making the severance package offer, was that he would always take care of Plaintiff, that he loved her, and that Plaintiff should remember that "he gives good head". 21. Hoynitski also gave to Defendant a document with his name, home phone, and the statement "I give great head!!" noted thereon. 084090520271 22. On 3/28/00, Plaintiff went to work for Defendant as per her usual course. 23. Plaintiff was surrunoned by Defendant's General Manager, Lynn Weaver, who asked Plaintiff for her selection (acceptance of the severance package or nothing) because Todd Hoynitski had told him (Weaver) to handle the matter. 24. When told that Plaintiff would not accept the severance offer, Weaver asked her when she was planning to leave and suggested that day or 3/30/00. 25. Shortly thereafter, Plaintiff packed up her desk and left (at approximately 10:00 a.m.). 26. The reasons given by Weaver to Plaintiff for her termination was that "she did not fit in," that Defendant had big plans to grow and that Plaintiff "holds them back", and that Plaintiffwas 'Just not a good manager". 27. Plaintiff was 53 years of age at the time her employment was terminated. 28. Plaintiff believes, and therefor avers, that none of the reasons given was true, in that Plaintiff had been growing with Defendant for years and had never received any discipline or other negative comment about her job as Office Manager. 29. Plaintiff believes, and therefor avers, that her employment was terminated solely due to her age and/or because of her rejection of Hoynitski's sexual advances and her failure to accept employment that would continue to subject her to Hoynitski's sexual advances. 30. On June 12,2000, Plaintiff timely filed a charge of discrimination against Defendant with the Pennsylvania Human Relations Commission, which charge was dual-filed with United States Equal Employment Opportunity Commission. 31. There has been no decision or ruling made by either the PHRC or EEOC concerning the charges filed with said agencies. 084090520271 Count I - Pennsvlvania Human Relations Act 32. length. Plaintiff incorporates by reference Paragraphs 1-31, inclusive, as ifset forth at 33. The above allegations constitute an unlawful discriminatory practice in violation of the Pennsylvania Human Relations Act, 24 P. S. g951, et. seq. (hereinafter the "PHRA"). 34. The above allegations also constitute illegal retaliation under the PHRA. WHEREFORE, Plaintiff, Tana L. Haldeman, respectfully requests that this Honorable Court take the following action: a) Make Plaintiff whole, including but not limited to, an award of back pay, front pay, and/or reimbursement of attorney fees; b) Eliminate all unlawful discriminatory 'practices and procedures by Defendant; c) Remedy the discriminatory effect of past practices and procedures; d) Take further affirmative action as necessary and appropriate to remedy the violations described herein; and e) For such other relief as may be just and proper. Count 11 - Al!e Discrimination in Emplovment Act 35. Plaintiff hereby incorporates by reference Paragraphs 1-31 above as ifset forth at length. 36. The above allegations constitute an unlawful discriminatory practice in violation ofthe Age Discrimination in Employment Act, 29 USC g621, et. seq. (hereinafter the "AREA"). 37. The above allegations also constitute illegal retaliation under the AREA. WHEREFORE, Plaintiff, Tana L. Haldeman, respectfully requests that this Honorable Court take the following action: a) ~~4~9~ 52~271 Make Plaintiff whole, including but not limited to, an award of back pay, front pay, and/or reimbursement of attorney fees; b) Eliminate all unlawful discriminatory practices and .procedures by Defendant; c) Remedy the discriminatory effect of past practices and procedures; d) Take further affirmative action as necessary and appropriate to remedy the violations described herein; e) Enter an award for liquidated and punitive damages; f) Enter an award for such pay and/or benefits that Plaintiff should have received after her termination had she been allowed to perform her employment; and g) For such other equitable and legal relief as may be just and proper. Count III - Title VII 38. Plaintiff hereby incorporates by reference Paragraphs 1-31 above as if set forth at length. 39. The above allegations constitute an unlawful discriminatory .practice (quid pro quo sexual harassment) in violation of Title VII of the Civil Rights Act of 1964,42 USC g2000e, et. seq. (hereinafter "Title VII "). WHEREFORE, Plaintiff, Tana L. Haldeman, respectfully requests that this Honorable Court take the following action: a) Make Plaintiff whole, including but not limited to, an award of back pay, front pay, and/or reimbursement of attorney fees; b) Eliminate all unlawful discriminatory practices and procedures by Defendant; c) Remedy the discriminatory effect of past practices and procedures; d) Take further affirmative action as nec~O~?~' .",-1 oppropriate to remedy the 0840~O 520271 violations described herein; e) Enter an award for liquidated and punitive damages; f) Enter an award for such pay and/or benefits that Plaintiff should have received after her termination had she been allowed to perform her employment; and g) For such other equitable and legal relief as may be just and proper. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: A---/ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York,PA 17401 (717) 845-3674 Supreme Ct. J.D. #59052 0840~0 520271 T 4N.4 L. Il.4LDEA1.4Jv Plail1 tilJ; . SUbj", to fu, -" ofI, Pao.s. 14904 reI,,",, '0 """"'''' fuJ..""",, to ""'<>rih... I, T "" 1. IhIdOn",- ''''by _ ili" ili, f"," """l'ned 'n th" . C . 1 e lOregOJng omplaJnt are true and Correct to the best of my knowledge information and bel1'ef Tn' t t . ' , . 18 8 a ement 18 made ~ IIV TIlE COlJRT OF COMMOIV PLE.4.S YOlU( COllJlrrY, PEIVIVSl'L V.4JVu CIVIL .4CTIOIV _ L.4lV IVo. 2002-SlJ_ J{JRY T.RI.4L DEM.41vDED v. Il.4iUuSBlJRC .4lJTO .4lJCTIOlV. DefelJdlUlt ' Dated: / /;S/o~ I I ~r/4~ Tana L. Haldeman 084090520271 'I} ..,/'/ f fi' ~ 2 C> q rv s: ~ t;-. "'JCtJ c::: -, .. mr"'~ 'r- -.J "">-.'. ~'J liJj;P ~ ~ -'-'" IV %s I '/J!"'r~ ..., 0 ()) -' ()") -:JO ~ .., ~ <:: "~(~ '" r--\, ~ -,." .~-j ~I'. C ~~C\ ::Jr..: ""'.7--., <CC :~-,-! ("5 ~ $J C: ,~"'-r'n -.:J < ..C,., :c;! :::;! '0 :u -rr -< { .. ... , . TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Vo CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002 -03774 DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S AMENDED COMPLAINT NOW COMES defendant, Harrisburg Auto Auction, by and through its counsel, Keefer Wood Allen & Rahal, LLP, to state its preliminary objections to plaintiff's amended complaint, as follows: Demurrer as to Aqe Discrimination Claims 10 In paragraphs 12, 13, and 29, and counts I (paragraphs 35 through 37) and II (paragraphs 38 through 40), plaintiff sets forth claims based upon alleged age discrimination under the Pennsylvania Human Relations Act, 24 PoSo ~ 951, et seq. ("PHRA"), and the Age Discrimination in Employment Act, 29 U.S.C. ~ 621, et seq. ("ADEA") 0 2. Plaintiff's claims in this regard are legally insufficient and can be dismissed pursuant to Pa. Ro Civo P. 1028(a) (4) because no age discrimination claim was first lodged against defendant by plaintiff with the Pennsylvania Human Relations Commission ("PHRC") or the Equal Opportunity Employment Commission ("EEOC") 0 . 3. The complaints filed by plaintiff in the PHRC, docketed to Nos. E-96002-D and E-97308-D, true and correct copies of which are attached hereto as exhibits A and B, respectively, made no mention of plaintiff's age in connection with her allegations of sexual harassment, discrimination, or retaliation. 4. Thus, plaintiff has failed to exhaust her administrative remedies with regard to her age discrimination claims. WHEREFORE, defendant respectfully requests this Honorable Court to grant its demurrer and dismiss plaintiff's amended complaint to the extent that any relief is sought on the basis of age discrimination. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: August 7, 2002 UJl<v-,r By Charles W. Rubendall II I.D. # 23172 Stephen L. Grose I.D. # 31006 Donald M. Lewis III I.D. # 58510 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010 and 255-8052 Attorneys for defendant - 2 - VERIFICATION The undersigned, Charles W. Rubendall II, hereby verifies and states that: 1. He is one of the attorneys for defendant herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing preliminary objections are known to him and not exclusively to his client; 4. The facts set forth in the foregoing preliminary objections are true and correct to the best of his knowledge, information, and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. ...----- -~, Charles W. Rubendall II Dated: August 7, 2002 - - c.- r-- COJ.\lIMONWEAL TH OF PENNSYL V ANlA COMPLAINT -, a "7 c:::> -- ~-e ~ ~-> ~ '?~ - ~~t~ ....... .;:.~~ ~ a'_~ -. ... - -~<:::) ~ ~-- ~ . a~ -- a- -:. --- ~~ .. _ "'""': c.;J :;.:-;; t1' ..;. - GOVERNOR'S OFFICE PENNSYL VANIA HUMAN RELATIONS COMMISSION COMPLAINANT: T ANA L. HALDEMAN v. Docket No. E. -f~;. J) EE.bC, A/~ f 7 FA~ ,. 8 6 7 RESPONDTh"'T: HARRISBURG AUTO AUCTION , 1. ~ The Complainant herein is: Name: Tana L. Haldeman Address: 93 N. Fourth St., Mt. Wolf, PA 17347 Counsel: Sara A. Austin, Esquire, Countess Gilbert Andrews, 29 N. Duke St., York, PA I 740 1. 2. The Respondent herein is: Name: Harrisburg Auto Auction Address: 1100 S. York St., Mechanicsburg, Cumberland County, PA, 17055 Counsel: Phillip L. Zulli, Esquire, 1501 N. Front St., Harrisburg, PA 17102 3. The Complainant alleges that on or about 3/28/00, Respondent illegally and in violation of applicable la~ terminated her employment with Respondent, effective immediately. The chronology is as follows: a. Complainant, a 53 year old white female, was Respondent's office manager for a number of years. Complainant continued to serve as Office Manager during various urdates/ advances/revisions/changes by Respondent, whether to software, hardware, personnel, or other. b. During much of her 18 years of employment, and continuing through the Fall of 1999 and until termination of her employment, Complainant was subjected to unwelcome touching and comments by Respondent's President and owner, Stanley Hoynitski (hereinafter "Hoynitski''). The unwelcome touching included but was not limited to the areas of and surrounding Complainant's buttocks, breasts and neck, and included touching by Hoynitksi's hands and mouth. The unwelcome comments included but were not limited to Hoynitski's comments that he loved Complainant, wanted to go to bed with Complainant, and that "he gave good bead". Complainant continually made Hoynitski aware that the touching and comments were unwelcome, but same never stopped. c. Hoynitski made similar comments to other female employees, but such comments were not to the same degree nor of the same continuity as those directed to Complainant. d. During the Fall of 1999, Hoynitski asked Complainant several times to transfer her employment to another of his companies; Complainant declined the offer each and every time. e. On or about 3/24/00, Hoynitski again offered Complainant employment at one of his other companies, which offer included the same salary as she was earning at Respondent, gas reimbursement, and an apartment (allegedly due to the more distant location of the other company). Hoynitski even noted in writing the provisions of his offer. The proposed employment was for a position similar to that currently held by Complainant with Respondent. The offer was accompanied by Hoynitski's statements that neither he nor Complainant fit in at Respondent any more and that "they don't want us". Hoynitski further represented that Complainant's job with Respondent was in jeopardy, such that she should accept his offer of employment so that "he could take care of her" because "he loves her". f. On or about 3/27/00, Complainant declined Hoynitski's offer of employment. Hoynitski's response was that Complainant was "just like his other girlfriends" and that therefore he would put together a severance package for her. Later that day, Hoynitski 2 gave Complainant a choice between a severance package (the terms of which were laid out for Complainant by Hoynitski) or nothing if the package was declined. Hoynitski then told Complainant that the offer required the approval of his son, Todd Hoynitski, Respondent's Vice-President, and that the offer would be discussed upon Hoynitski's return the following Monday. g. Hoynitski's last comment, after making the offer, was that he would always take care of Complainant, that he loved her, and that Complainant should remember that "he gives good head". Hoynitski also gave to Respondent a paper with his name, home phone, and the statement "r give great head!!" noted thereon. h. On 3/28/00, Complainant went to work for Respondent as per her usual course. Complainant was sUmmoned by Respondent's General Manager, Lynn Weaver, who asked Complainant for her selection (acceptance of the severance package or nothing) because Todd Hoynitski had told him (Weaver) to handle the matter. When told that Complainant would not accept the offer, Weaver asked her when she was planning to leave and suggested that day or 3/30/00. Shortly thereafter, Complainant packed up her desk and left (at approximately 10:00 a.m.). i. The reason given by Weaver to Complainant for her tennination was that "she did not fit in," that Respondent had big plans to grow and that Complainant "holds them back", and that Complainant was "just not a good manager". j. ~one of the reasons given was true, in that Complainant had been growing with Respondent for years and had never received any discipline or other negative comment about her job as Office Manager. k. Complainant's employment was terminated solely because of her rejection of Hoynitski's sexual advances and her failure to accept employment that would continue to subject her to Hoynitski's sexual advances. 4. The allegations in Paragraph 3 hereof constitute an unlawful discriminatory practice or unlawful practice and are in violation of: (X) Pennsylvania Human Relations Act (Act of October 27,1955, P.L. 744, as amended) Section 5 Subsection(s) () Section 5.1 Subsection(s) ~ .) (.} Section 5.2 Subsection(s) () Pennsylvania Fair Educational Opportunities Act (Act of July 17, 1961, P.L. 766 as amended). Section 4 Subsection(s) 5. The Complainant asserts that the alleged unlawful discriminatory practices: Are of a continuing nature that have persisted up to and including the present time. 6. No other action based on the aforesaid allegations has been instituted by the Complainant in any court or before any other commission within the Commonwealth of PeIUlSylvania except as follows: (X) None ( ) This charge will be filed with the P A Real Estate Commission under the P A Licensing and Registration Act Section 604. (X) This charge will be referred to EEOC for the purpose of duel filing. () This charge will be referred to HUn for the purpose of duel filing. 7. The Complainant prays that the Respondent be required to: (a) Make the Complainant whole, including but not limited to an award of back pay, front pay, all benefits, and attorneys' fees/costs reasonably incurred; (b) Eliminate all unlawful discriminatory practices and procedures by Respondent. (c) Remedy the discriminatory effect of past practices and procedures by Respondent on Complainant's employment; (d) Take further afftrmative action necessary and appropriate to remedy the violation complained of herein; and (e) Provide such further relief as the Commission deems necessary and appropriate. (balance of page intentionally left blank) 4 I hereby verify that the statements contained in this Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. / /" /00 ~ ~/7V>. ~ i1~ Tana L. Haldeman 5 A{JY1- ara . ustm Sup. Ct. ID 59052 Countess Gilbert Andrews 29 N. Duke St. York, PA 17401 (717) 848-4900 Counsel for Complainant -- .-1 'I'ana L. Haldeman v. Harrisburg Auto Auction PHRC Docket No. E-96002-D EEOC Charge No. 17FA028S7 Certificate of Service Pursuant to the requirements of 1 Pa. Code S 33.31, I hereby certify that I have this day served the foregoing Complaint by first class mail, postage prepaid, as follows: Harrisburg Auto Auction 1100 South York Street Mechanicsburg, PA 17055 Respondent 'I'ana L. Haldeman 93 North Fourth Street Mt. Wolf, PA 17347 Complainant Sara A. Austin, Esq. Countess Gilbert Andrews 29 North Duke Street York PA 17401-1282 Complainant Attorney Dated this ~% day of -iu~ ,. 20~ ~~.-...;. ~ ----- .:!". K Regina Young 4/5& . - COMMONWEALTH OF PENNSYL VANIA GOVERNOR'S OFFICE 00 OCT _:> I'J- .. AI1II: 18 PENNSYL V AJ.'ilA HUMAN RELATIONS COMMIS~~~,j~WiVfo ;1;-' · "". .','cr:tnl.,'.r:r:.'t, " J J~';~I n~.J :".'.':"" . ..~ r'r:: '., COMPLAINT COl'vlPLAINANT: TANA L. HALDEMAN v. Docket No. t~-Cj,3 () <g -0 0 EEOC Charge No. 17F -L1...EA-l 05 3 ~ RESPONDENT: HARRISBURG AUTO AUCTION (related to Docket E-96002-D EEOC Charge 17F A02857) 1. The Complainant herein is: Name: Tana L. Haldeman Address: 93 N. Fourth St., Mt. Wolf, PA 17347 Counsel: Sara A. Austin, Esquire, Countess Gilbert Andrews, 29 N. Duke St., York, PA 17401. ') The Respondent herein is: Name: Harrisburg Auto Auction Address: 1100 S. York St., Mechanicsburg, Cumberland County, PA, 17055 Counsel: Brenda 1:. Gacki, Esquire, 210 Walnut St., P.O. Box 11963, Harrisburg, PA 17108-1963. 3. The Complainant incorporates by reference herein the allegations set forth in her Complaint filed 6/12/00 and indexed to PHRC Docket E-96002-D, EEOC Charge Nwnber l7F A02857. Further, Complainant alleges that Respondent has been retaliating against her for the filing of the other Complaint, such retaliation including but not limited to spreading false rumors about actions allegedly taken by Complainant while employed by Respondent, which rumors have in the past and will continue in the future to hurt Complainant in her search for. . employment and, additionally, harm Complainant in the eyes of her friends, family, the community, and potential future employers. 4. The allegations in Paragraph 3 hereof constitute an unlawful discriminatory practice or unlawful practice and are in violation of: (X) Pennsylvania Human Relations Act (Act of October 27, 1955, P.L. 744, as amended) Section 5 Subsection(s) ( ) Section 5.1 Subsection(s) ( ) Section 5.2 Subsection(s) ( ) Pennsylvania Fair Educational Opportunities Act (Act of July 17, 1961, P.L. 766 as amended). Section 4 Subsection(s) 5. The Complainant asserts that the alleged unlawful discriminatory practices: Are of a continuing nature that have persisted up to and including the present time. 6. No other action based on the aforesaid allegations has been instituted by the Complainant in any court or before any other commission within the Commonwealth of Pennsylvania except as follows: Complaint filed 6/12/00 as to discriminatory termination of employment, said Complaint indexed to PHRC Docket E-96002-D (EEOC Charge Number 17FA02857) ( ) ( ) None (X) ( ) This charge will be filed with the P A Real Estate Commission under the P A Licensing and Registration Act Section 604. This charge will be referred to EEOC for the purpose of duel filing. This charge will be referred to HUD for the purpose of duel filing. 7. The Complainant prays that the Respondent be required to: (a) Make the Complainant whole, including but not limited to an award of back pay, front pay, all benefits, and attorneys' fees/costs reasonably incurred; (b) Eliminate all unlawful discriminatory practices and procedures by Respondent. 2 .. .' .. (c) Remedy the discriminatory effect of past practices and procedures by Respondent on Complainant's employment; (d) Take further affirmative action necessary and appropriate to remedy the violation . complained of herein; and (e) Provide such further relief as the Commission deems necessary and appropriate. I hereby verify that the st~tements contained in this Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Cf~.3-oo Date ~ t. ~k~~~ Tana L. Haldeman JX Sara A. Austin Sup. Ct. ill 59052 Countess Gilbert Andrews 29 N. Duke St. York, PA 17401 (717) 848-4900 Counsel for Complainant ... oJ .s-; . ... ~ .' . '( I .. .. Tana L. Haldeman v. Harrisburg Auto Auction PHRC Docket No. E-97308-D EEOC Charge No. 17FAI0538 Certificate of Service Pursuant to the requirements of 1 Pa. Code ~ 33.31, I hereby certify that I have this day served the foregoing COIPplaint by first class mail, postage prepaid, as follows: Harrisburg Auto Auction 11 00 South York Street Mechanicsburg, P A 17055 Respondent Tana L. Haldeman 93 North Fourth St. Mt. Wolf, PA 17347 Complainant Sara A. Austin Countess-Gilbert-Andrews 29 North Duke Street York PA ~ :-....~i-1282 Complainant Attorney Dated this 'd.1? day o~ 200Q. r.~',""-,,lF~' Regina Young 4/98 . ~ l . Ii \. . CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 KEEFER WOOD ALLEN & RAHAL, LLP BY~~ Charles W. Rubendall II Dated: August 7, 2002 " ') .. ... Ja () (,:-", c) S I .j r::- -r" j-; f: , .'.J " , -< t-, C:r::.. l:J ...~~ () L,~. () j;; C :.) .:-':" ~1:J ~ ID -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT Plaintiff, Tana L. Haldeman, by and through her attorneys of record, Blakey, Yost, Bupp & Rausch, LLP, files the following response to Defendant's Preliminary Objections to Plaintiffs Amended Complaint: 1. No response to this paragraph is required; the document speaks for itself. 2. The averments of Paragraph 2 are specifically denied. In Plaintiff's Complaint filed with the Pennsylvania Human Relations Commission on June 12, 2000, a claim of age discrimination is evidenced in Paragraphs 3(a),(e), and (i) of Exhibit A attached to Defendant's Preliminary Objections to Plaintiffs Amended Complaint. 3. The averments of Paragraph 3 are specifically denied for the reasons set forth in Paragraph 2 herein. 4. The averments of Paragraph 4 are specifically denied, and strict proofthereofis demanded at trial. -~~~.~.,.._,,--_...~,_._...,_.,,~. ",_"',,--_._,_.,~- .,'. WHEREFORE, Plaintiff requests that Defendant's Preliminary Objections be dismissed. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: {J ---' Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, PA 17401 Telephone (717) 845-3674 Fax No. (717) 854-7839 Supreme Ct. J.D. #59052 -~'-'^._'"---~_._~",,,-,-,-~ -,. '''..".'' "._-~~"..._--~".".....~-,.. VERIFICATION I, Sara A. Austin, Esquire, do hereby verify that I am the attorney of record for the Plaintiff herein, and am authorized to make this Verification on her behalf. The facts set forth in the foregoing pleading are known to me, and are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. /L----- Sara A. Austin, Esquire Dated: August 14, 2002 '-"~~~-_"__._~,-~.-~,~.,.,.."_.,.".",.,. ~"""""'-'''''''--'--,''''h,..,.n'_'_~'''__<.'''''''_"h'' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy ofthe foregoing document to be served on the following person in the manner indicated: By First Class United States Mail on: Charles W. Rubendall, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, P A 17108-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP By: Dated: August 14,2002 <_._--~...._"-,-,-~.,..""""'-,,..,"_... ,', '~"_.~._","".>-_.",---".__..._.. -'. -< (") c::) (::> C I" il ? no ~1 !"I. 2! m " ~-=j Z ) j-Fl ." - ~...:::J L._ ~} C>, J r~ ._-~ ~.;: ::r) ~~ - (-) C - f'TI i'\.J -- C -4 ::::::, r- JJ ~ (.J -< PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) TANA L. HALDEMAN, Plaintiff vs. HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 Civil 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's preliminary objection to plaintiff's amended complaint 2. Identify counsel who will argue case: (a) for plaintiff: Address: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 (b) for defendant: Charles W. Rubendall II, Esquire Stephen L. Grose, Esquire Donald M. Lewis III, Esquire Address: Keefer Wood Allen & Rahal, LLP 210 Walnut Street, P. O. Box 11963 Harrisburg, PA 17108-1963 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 23, 2002 Dated: August 19, 2002 (~-.~ Charles W. Rubendall II Attorney for defendant o C lJ :~~ Q-!~-~ ~::r /"r u;-" r:.; :_-~ ~I.. ~:::~ ,-- ?~-~ );~~: ..- ~..::i --' , \_...; r-,,~:} ~ :I=) :-'.) t=. ." " ( .r-;' ~. '. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TANA L. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED MOTION TO COMPEL AND FOR SANCTIONS AGAINST EQUAL EMPLOYMENT OPPORTUNITY COMMMISSION FOR FAILURE TO RESPOND TO PLAINTIFF'S SUBPOENA Plaintiff, Tana L. Haldeman, by her undersigned counsel, hereby moves this Court to enter an order pursuant to Pa. R.C.P. 4019(a)(1)(viii) directing the Equal Opportunity Employment Commission to produce the documents requested in the Court's subpoena, or suffer sanctions, and in support thereof avers as follows: 1. The action was instituted by Complaint in York County on March 22, 2002. 2. Defendant filed Preliminary Objections to the Complaint on or about April 12, 2002. 3. Responding to Defendant's Preliminary Objections, Plaintiff filed an Amended Complaint on May 7,2002. 4. On or about July 24, 2002, by stipulation of the parties, the case was transferred to Cumberland County. 4. Defendant again filed Preliminary Objections to Plaintiff's Amended Complaint, to which Plaintiff duly responded on August 16, 2002. " 5. The matter is presently awaiting argument before the Court on the issues raised in the Preliminary Objections. 6. Prior to initiation of this proceeding with the local Court, the underlying allegations were the subject of a Complaint filed with the Pennsylvania Human Relations Commission (pHRC) and Equal Employment Opportunity Commission (EEOC). 7. On June 12, 2002, after initiation of the instant action, Plaintiff issued a subpoena to EEOC requesting copies of all docwnents pertaining to Plaintiff's case, which documents were to be furnished within twenty (20) days. A copy of the Subpoena is attached as Exhibit A. 8. On July 8, 2002, Plaintiff's counsel sent a letter to EEOC requesting a response to the Subpoena. A copy of the letter is attached as Exhibit B. 9. Following the letter of July 8th, a representative of EEOC called Plaintiff's counsel requesting an extension of time in which to furnish the documents. An extension was granted, however, that extended period has long since expired, with no response forthcoming. 10. More than three (3) months have passed since the Subpoena was served, and no documents have been received from EEOC. 17. For the foregoing reasons, Plaintiff believes and avers that the EEOC will not produce the documents requested absent a Court order pursuant to Pa. R.C.P. 4019(a)(1 )(viii). 18. Further, EEOC has provided no reason for its failure to reply to the Subpoena, even after Plaintiff granted the requested extension in July. " WHEREFORE, Plaintiff, Tana L. Haldeman, requests that the Court enter an Order directing the Equal Employment Opportunity Commission to: (1) produce the documents requested in the Subpoena issued June 12, 2002, within ten (10) days or suffer appropriate sanctions to be imposed upon further application to the Court; (2) paying the attorneys fees and costs incurred by Plaintiff relative to this Motion and any hearing thereon; and (3) for such other relief as is just and proper. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: ~ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, Pennsylvania 17401 Telephone (717) 845-3674 Fax No. (717) 854-7839 Supreme Ct. I.D. #59052 " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TANA L. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED CERTIFICATE OF CONCURRENCE/NON CONCURRENCE Attorney Charles Rubendall, defense counsel, concurs in the filing of this Motion. The Equal Employment Opportunity Commission, by its actions, does not concur. BLAKEY, YOST, BUPP & RAUSCH, LLP By: jl-/ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, Pennsylvania 17401 Telephone (717) 845-3674 Fax No. (717) 854-7839 Supreme Ct. I.D. #59052 .' I,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TANA L. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the foregoing document to be served on the following persons in the manner indicated: By First Class United States Mail on: Equal Employment Opportunity Commission Philadelphia District Office The Bourse 201 South Fifth Street, Suite 400 Philadelphia, PA 19106-2515 Charles W. Rubendall, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, PAl 71 08-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP By: Dated: <f;;~Io'l- # . IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYL V.ANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No.2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records - EQUAL E:tvfPLOYMENT OPPORTUNITY CO:M:M1SSION Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: a copy of your complete fIle' on Tana Haldeman v. Harrisbure: Auto Auction. at both docket Nos. 17FA02857 and 17FAI0538 at 17 East Market Street, York, P A 17401. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Sara A. Austin, Esquire 17 East Market Street York, PA 17401 S. Ct. I.D. #59052 Telephone (717) 845-3674 Attorney for Plaintiff DATE: 0~~~') Seal 0 the Court l Prothonotanr . STACIA N.GATES, PROTHONOTARY MY COMMISSION EXPIRES JANUARY 5, 2004 ." IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CNIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No. 2002-SU-01522-01 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED NOTICE TO: CUSTODIAN OF RECORDS EQUAL EMPLOYMENT OPPORTIJNITY COMMISSION You are required to complete the following Certificate of Compliance when producing documents or things pursuant to this Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR TIllNGS PURSUANT TO RULE 4009.23 I, , certify to the best of my lmowledge, information and belief that all documents and things required to be produced pursuant to the subpoena issued on have been produced. (person served with subpoena) Date: ," . LAW OFFICES BLAKEY, YOST, BupP & RAUSCH, LLP 17 EAST MARKET STREET YORK, PENNSYLVANIA 17401 ALBERT G. BLAKEY DAVID WM. BUPP DONALD B. HOYT CHARLllS A. RAUSCH SARA A AUSTIN STACEY R. MACNEAL PENNY v. AYERS JOlIN J. BARANSKI. JR. ROBERT O. BEERS+ DONALD H. YOST+ tOF COUNSEL TELEPHONE (717) 845-3674 FACSIMILE (717) 854-7839 July 8, 2002 DILLSBURG OFFICE, 104 SmITH BALTIMORE STREET DILLSBURG. PA 17019 (711) S02-S2S6 PLEASE CORRESPOND TO YORK OFFICE Equal Employment Opportunity Commission Philadelphia District Office The Bourse 21 South Fifth Street Suite 400 Philadelphia, PA 19106-2515 R~: Tana Haldeman v. Harrisburg Auto Auction York County No. 2002-SU-01522 Dear Sir or Madam: On June 13,2002, I sent you a Subpoena requesting a copy of your complete file on Tana Haldeman v. Harrisburg Auto Auction, for both cases, No. 17FA02857 and 17FAI0538. More than 20 days have passed and we would appreciate your prompt response. Thank you. Very truly yours, ~~'~ / Norma Doll, Paralegal Y, YOST, BUPP & RAUSCH, LLP ND:s Enclosure: cc: Ms. Tana L. Haldeman o c ) --~ 1 ") j J -',) t".1 W-;"1' :'.J " SEP Z 3 ZUlI 0- IN THE COURT OF COMNION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TANA 1. HALDEMA1'\l", Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this.2itL day of September, 2002, upon consideration of the foregoing Motion, IT IS HEREBY ORDERED that a Rule is issued upon the Equal Employment Opportunity Commission to show cause why the Petitioner is not entitled to the relief requested; Rule Returnable twenty (20) days after date of service of this Rule. By the Court, ~~ C~~ ~()~ 9.?JjO ~b-{'~~ . ~~~ " ~C>' ~ v ~ ,~ ~_c ~ "\)0 ~tP' I ;~ o<~().- ~ ~(; ;~ .x~ ~$" .,) o~ ~ V1N1f^lASNN3d AlNI100 or\N1H38~110 S I :1 Wd S2 d3S 20 AW10iJC;LCd,. iO 3:)J.:1;[0--UJ TANA L. HALDEMAN Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-03774 CIVIL TERM HARRISBURG AUTO AUCTION Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT Before BAYLEY and HESS. JJ. ORDER OF COURT AND NOW, October 31,2002, following argument thereon, the Preliminary Objections of the Defendant to the Plaintiff's Amended Complaint are DENIED. By the Court, Sarah A. Austin, Esquire Blakey, Yost, Bupp & Rausch, LLP 17 East Market Street York, PA 17401 For the Plaintiff J. Charles W. Rubendall II , Esquire Stephen L. Grose, Esquire Donald M. Lewis III, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street PO Box 11963 Harrisburg, PA 17108-1963 For the Defendant ~ - ~ /0.3IAJL 9-. '-iINViYl,\SNN3d I II ~I('~"J n<', ." ""-''.In'' ALI....i jl,)... ~_,\<, ;~'<'<~':]n{ V . U Ill'" '."" "0 7n L' : j dt~ ~ t.. 1...;1 'uU n:';i,." . TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT NOW COMES defendant Harrisburg Auto Auction (hereinafter "defendant"), through the undersigned counsel, Keefer Wood Allen & Rahal, LLP, to provide the following answer with new matter and counterclaim in response to plaintiff's amended complaint, averring as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. By way of further answer, the citation provided here for the Pennsylvania Human Relations Act is incorrect. 4. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. 5. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. 6. Admitted in part and denied in part. Defendant denies the second sentence of this averment as vague and unintelligible. 7. Denied. Defendant denies that Stanley Hoynitski, defendant's former president (hereinafter "Mr. Hoynitski"), made any inappropriate sexual advances or comments to plaintiff at any time during her employment with defendant. Defendant further denies that plaintiff ever informed Mr. Ho~rnitski or otherwise made him aware that she considered any action or comment on his part to be unwelcome or offensive. 8. Denied. Defendant denies that Mr. Hoynitski made any inappropriate sexual advances or comments 1:0 plaintiff at any time during her employment with defendant. Defendant further denies that plaintiff ever informed Mr. Hoynitski or otherwise made him aware that she considered any action or comment on his part to be unwelcome or offensive. By way of further answer, defendant states that Mr. Hoynitski and plaintiff were friendly toward each other and would, from time to time, embrace and kiss each other in a friendly way. 9. Denied. Defendant denies that Mr. Hoynitski made any inappropriate sexual advances or comments to plaintiff at any - 2 - time during her employment with defendant. Defendant further denies that plaintiff ever informed Mr. HO)Tnitski or otherwise made him aware that she considered any action or comment on his part to be unwelcome or offensive. By way of further answer, defendant states that Mr. Hoynitski and plaintiff were friendly toward each other and would, from time to time, embrace and kiss each other in a friendly way. 10. Denied. Defendant denies that Mr. Hoynitski made any inappropriate sexual advances or comments to plaintiff at any time during her employment with defendant. Defendant further denies that plaintiff ever informed Mr. Ho:{nitski or otherwise made him aware that she considered any action or comment on his part to be unwelcome or offensive. 11. Denied. Defendant denies that Mr. Hoynitski made any inappropriate sexual advances or comments .to anyone in defendant's employ, including but not limited to plaintiff. 12. Admitted in part and denied in part. Defendant admits an offer of alternative employment at another company owned by Mr. Hoynitski was made to plaintiff in the fall of 1999, as well as later in March 2000, and that plaintiff declined said offers. These offers were made, however, only after problems arose with plaintiff's job performance, which had deteriorated in the several years prior to her termination. - 3 - Specifically, Mr. Hoynitski informed plaintiff on these occasions that he had received complaints from co-workers and management personnel about her poor work performance and poor attitude toward her job duties and co-workers. Defendant denies that plaintiff's age was a factor in the offer of alternative employment. To the contrary, said offers ,.ere extended only because plaintiff was a long-time employee for whom a special accommodation was being made. Mr. Hoynitski believed that since plaintiff's unsatisfactory job performance was related specifically to changes in defendant's business and to plaintiff's difficulty in working with other employees of defendant, she would prefer a different job with another company. The alternative job offer made in March 2000 was extended specifically so that plaintiff would not be unemployed following her termination by defendant. 13. Admitted in part and denied. Defendant admits that on or about March 24 or March 25, 2000, Mr. Hoynitski again offered alternate employment to plaintiff with another company. Defendant denies that plaintiff's age was a factor in the offer of alternative employment. To the contrary, immediately prior to the date in question, other management personnel had advised Mr. Hoynitski that they continued to receive complaints from plaintiff's co-workers regarding the difficulty they were having - 4 - working with plaintiff and that she was not performing her job functions in a satisfactory manner. Moreover, her attitude toward her job and her co-workers had become increasingly negative and disruptive, with some of the co-workers threatening to quit if problems with plaintiff were not resolved. At this point, management determined that it was appropriate and in the best interest of the company to terminate plaintiff's employment. Defendant admits that the alternative job with another company was offered to plaintiff at the same rate of pay that she was then earning from defendant. Defendant further admits that after plaintiff pointed out that the new job would be further away from her residence, Mr. Hoynitski also offered to reimburse her for the cost of gasoline and to assist her in finding an apartment in closer proximity to her new potential employer. 14. Admitted in part and denied in part. Defendant admits that the proposed alternate employment was for a position similar to that plaintiff held with defendant. Defendant denies, however, that Mr. Hoynitski provided plaintiff with a formal written offer of alternative employment, though he did jot down a few brief notes related to the verbal offer of said position. With regard to the comments quoted here as being made by Mr. Hoynitski, said comments are out of context and have no discriminatory meaning. To the contrary, Mr. Hoynitski was - 5 - alluding to the fact that he was planning to step down as defendant's president, and that those who would be running the company in his stead had expressed their dissatisfaction with plaintiff's job performance and attitude and intended to terminate her employment. 15. Admitted in part and denied in part. Defendant admits that Mr. Hoynitski advised plaintiff that her job was in jeopardy at this time. Defendant denies that the comments quoted here as being made by Mr. Hoynitski had any romantic or sexual connotations whatsoever. To the contrary, Mr. Hoynitski offered alternative employment to plaintiff because she was a long-time employee of defendant for whom a special accommodation was being made, and the specific intent of the offer was to ensure that plaintiff would not be unemployed following her termination by defendant. 16. Admitted with clarification. Defendant admits that plaintiff declined the offer of alternative employment on or about March 27 or March 28, 2000. 17. Admitted in part and denied in part. Defendant admits that following plaintiff's rejection of alternative employment, Mr. Hoynitski advised plaintiff that she would be offered a severance package. Defendant denies that Mr. Hoynitski made the comment quoted here. - 6 - 18. Admitted with clarification. Defendant admits that Mr. Hoynitski at or about this time discussed a severance package with plaintiff, which she was free either to accept or to decline. Mr. Hoynitski further advised that said severance package would require the approval of Todd Hoynitski, then defendant's vice-president, who was not available at the time to provide his approval. 19. Admitted. 20. Denied. Defendant denies that the first two comments quoted here as being made by Mr. Hoynitski had any romantic or sexual connotations whatsoever. To the contrary, Mr. Hoynitski made the offer of alternative employment to plaintiff because she was a long-time employee of defendant for 1Nhom a special accommodation was being made, and the specific intent of the offer was to ensure that plaintiff would not be unemployed following her termination by defendant. As for the latter comment purportedly made by Mr. Hoynitski as quoted here, defendant denies that said comment was made. 21. Denied. Defendant denies that Mr. Hoynitski made any inappropriate sexual advances or comments to plaintiff at any time during her employment with defendant. By way of further answer, defendant denies that he gave the note in question to plaintiff at or about the time of her termination. By way of - 7 - further answer, defendant states that any notes of this type, if they were written at all, were not given to plaintiff and were, in any event, written at the same time that. plaintiff wrote similar notes. 22. Admitted with clarification. Defendant admits that plaintiff reported to work on the day in question. 23. Admitted with clarification. Defendant admits that Mr. Weaver, at the direction of Todd Hoynitski, met with plaintiff to explain that her employment was being terminated and to offer her the severance package that had been approved by the company. 24. Admitted with clarification. Defendant admits that plaintiff rejected the severance package at this time and that Mr. Weaver advised plaintiff that she could leave her job that day or later in the week. 25. Admitted with clarification. Defendant admits that shortly after plaintiff's meeting with Mr. Weaver, she gathered her belongings and left the premises. 26. Admitted with clarification. Plaintiff was terminated by defendant for reasons relating solely to her poor job performance as explained by Mr. Weaver. By way of further answer, the actions of defendant as they relate to plaintiff and plaintiff's termination were lawful and were taken for non- discriminatory reasons. - 8 - 27. Admitted. 28. Denied. Defendant denies the assertion that none of the reasons given by Mr. Weaver for plaintiff's termination was true. To the contrary, said reasons were accurate and truthful. Defendant further denies that plaintiff was "growing" with the company and that she had not received any negative comments about her job performance as office manager. In point of fact, defendant had informed plaintiff on several occasions in the fall of 1999 that complaints had been received from her co-workers and management personnel regarding her unsatisfactory job performance and unsatisfactory attitude toward her co-workers. She was also advised again in March 2000, that complaints had continued to be received regarding her poor attitude, her failure to perform her job duties in a satisfactory manner, her unwillingness to adjust to change (particularly in regard to computer system upgrades), and her inability to work in a harmonious fashion with both her co-workers and management. 29. Denied. Defendant denies that plaintiff's employment was terminated for the reasons cited here. By way of further answer, defendant specifically denies that Mr. Hoynitski made any inappropriate sexual advances or comments to plaintiff at any time during her employment with defendant or that plaintiff's age was a factor in her termination. To the contrary, plaintiff was - 9 - terminated by defendant for reasons relating solely to her poor job performance, and the actions of defendant as they relate to plaintiff and plaintiff's termination were lawful and were taken for non-discriminatory reasons. 30. Admitted. 31. Denied. Defendant denies that following plaintiff's termination, it or any of its employees spread any "false rumors" to anyone at any time concerning plaintiff's employment with defendant. 32. Denied. Defendant denies that following plaintiff's termination, it or any of its employees spread any "false rumors" to anyone at any time concerning plaintiff"s employment with defendant. 33. Denied. Defendant denies that following plaintiff's termination, it or any of its employees spread any "false rumors" to anyone at any time concerning plaintiff's employment with defendant. 34. Admitted in part and denied in part. Defendant believes that the PHRC made a ruling in re9ard to both plaintiff's sexual harassment claim and retaliation claim. Defendant has no information about any decision or ruling issued by the EEOC in regard to plaintiff's claims. - 10 - COUNT I - PENNSYLVANIA HUMAN RELATIONS ACT 35. Defendant hereby incorporates by reference its responses to paragraphs 1 through 34 above as set forth in full. 36. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. By way of further answer, the citation provided here for the Pennsylvania Human Relations Act is incorrect. 37. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. WHEREFORE, defendant respectfully requests this Honorable Court to dismiss plaintiff's complaint against it, to enter judgment in its favor, and to grant defendant the relief sought by the counterclaim that appears below, t0gether with costs of suit and any other relief this Court deems fair and just. COUNT II - AGE DISCRIMINATION IN EMPLOYMENT ACT 38. Defendant hereby incorporates by reference its responses to paragraphs 1 through 37 above as set forth in full. 39. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. - 11 - 40. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. WHEREFORE, defendant respectfully requests this Honorable Court to dismiss plaintiff's complaint against it, to enter judgment in its favor, and to grant defendant the relief sought by the counterclaim that appears below, together with costs of suit and any other relief this Court deems fair and just. COUNT III - TITLE VII 41. Defendant hereby incorporates by reference its responses to paragraphs 1 through 40 above as set forth in full. 42. Denied. The averments in this paragraph state legal conclusions, a response to which is not required. To the extent that a response is deemed required, defendant denies same. WHEREFORE, defendant respectfully requests this Honorable Court to dismiss plaintiff's complaint against it, to enter judgment in its favor, and to grant defendant the relief sought by the counterclaim that appears below, together with costs of suit and any other relief this Court deems fair and just. NEW MATTER 43. The complaint fails to state a claim upon which relief may be granted as against defendant. - 12 - 44. Plaintiff's claims are barred by the applicable statute(s) of limitations and laches. 45. Plaintiff's claims are barred by the doctrines of waiver and estoppel. 46. Plaintiff's claims are barred by her failure to exhaust her administrative remedies. 47. The complaint fails to state a claim upon which relief may be granted as against defendant under either federal or state discrimination laws. 48. Plaintiff's claims are barred, in whole or in part, by the Pennsylvania Human Relations Act. 49. Under Wertz v. Chapman Township, 559 Pa. 630, 741 A.2d 1272 (1999), plaintiff's demand for a jury trial in regard to her claim under the Pennsylvania Human Relations Act is not authorized by law and should be stricken. 50. The actions taken by defendant in regard to plaintiff's termination did and do not constitute an unlawful discriminatory practice or unlawful practice and/or illegal retaliation as set forth in the Pennsylvania Human Relations Act. 51. Plaintiff's claims are barred, in whole or in part, by the Age Discrimination in Employment Act. 52. The actions taken by defendant in regard to plaintiff's termination did and do not constitute an unlawful discriminatory - 13 - practice or unlawful practice and/or illegal retaliation as set forth in the Age Discrimination in Employment Act. 53. Plaintiff's claims are barred, in whole or in part, by Title VII of the Civil Rights Act of 1964. 54. The actions taken by defendant in regard to plaintiff's termination did and do not constitute an unlawful discriminatory practice or unlawful practice as set forth in Title VII of the Civil Rights Act of 1964. 55. Plaintiff was contributorily negligent or at fault by failing to report to defendant any acts of alleged sexual harassment that may have occurred during her employment with defendant. 56. Plaintiff was contributorily negligent or at fault by failing to report to defendant any acts of alleged age discrimination that may have occurred during her employment with defendant. 57. Plaintiff was contributorily negligent or at fault by failing to advise Mr. Hoynitski at any time that his conduct toward her, which defendant avers was entirely proper, was unwelcome or offensive in any respect whatsoever. 58. Plaintiff unreasonably failed to take advantage of preventive and corrective opportunities provided by defendant to its employees. - 14 - 59. Plaintiff herself engaged in sexually suggestive conduct and used sexually-oriented or profane language in defendant's workplace and was a willing participant in such conduct. 60. Plaintiff was terminated by defendant for reasons relating solely to her poor job performance. 61. At all times relevant hereto, the actions of defendant as they relate to plaintiff and plaintiff's termination were lawful and were taken for non-discriminatory reasons. 62. All actions taken by defendant in regard to plaintiff were based upon bona fide business reasons and/or as a result of factors other than plaintiff's age and without discriminatory intent, purpose or effect. 63. All actions taken by defendant in regard to plaintiff's termination would have been taken even if plaintiff were not a member of a legally protected class. 64. Plaintiff's claims are barred, in whole or in part, by reason of her failure to mitigate her alleged damages. 65. Any damages allegedly incurred b~r plaintiff were the direct and proximate result of her own actions or failures to act. 66. Plaintiff fails to state a basis for a claim of punitive damages. - 15 - COUNTERCLAIM I (Implied Contract) 67. Defendant asserts this counterclaim pursuant to Pa. R. Civ. P. 1031. 68. At all times relevant to this counterclaim, plaintiff held the position of office manager with defendant. 69. In performing her duties as office manager, plaintiff had an implied contractual obligation to render loyal, diligent, faithful, and obedient service to defendant as her employer. 70. Plaintiff's position as office manager enabled her to extend short-term credit to auction customers, as agent for defendant. 71. As defendant's agent for purposes of extending short- term credit to customers, plaintiff owed her employer a fiduciary and contractual duty to act solely for the employer's benefit and to further its interests in all matters within the scope of the agency. 72. On information and belief, defendant avers that plaintiff became romantically involved during the course of her employment with a dealer-customer of defendant named Coy Elrod, who resides and does business in the State of Georgia. 73. Within the past four (4) years, under color of her authority as defendant's office manager, but without specific - 16 - permission or prior disclosure to her employer, plaintiff extended short-term credit to Mr. Elrod to enable him to purchase several vehicles at one of defendant's auto auctions. 74. The vehicles in question had a combined total value at auction of $24,730.00, based on the sum Mr. Elrod purportedly agreed to pay for them under plaintiff's short-term credit arrangement. 75. As a result of the short-term credit arrangement gratuitously granted by plaintiff to Mr. Elrod, the vehicles ln question were taken into custody and removed by him from the auction site, without any payment for the vehicles. 76. Under color of her authority as defendant's office manager, but without specific permission or prior disclosure to her employer, plaintiff processed the paperwork necessary to transfer titles for the vehicles in question to Mr. Elrod. 77. Notwithstanding the purported short-term credit arrangement created by plaintiff, plaintiff never made any effort to collect payment for the vehicles from Mr. Elrod, nor did she ever intend to do so. 78. On information and belief, defendant avers that the actions described in the foregoing paragraphs of this counterclaim were intended by plaintiff to effect a gift from her - 17 - to Mr. Elrod, with whom she was romantically involved at the time. 79. Plaintiff had a fiduciary and implied contractual obligation to her employer, Harrisburg Auto Auction, as its servant and agent, to promptly collect payment in full for all vehicles for which she had granted short-term credit to any purchaser, including Mr. Elrod. 80. Plaintiff breached her implied contractual duty to defendant by wilfully and intentionally failing to make any effort to collect payment from Mr. Elrod for the vehicles in question, which had a combined total value at auction of $24,730.00, and by deliberately concealing her actions. 81. As a proximate result of plaintiff's conduct, defendant has sustained damages in the amount of $24..730.00, plus interest accrued at the legal rate of six per cent (6%) to compensate defendant for loss of use of the vehicles and proceeds of sale. WHEREFORE, defendant respectfully requests this Honorable Court to enter judgment in its favor and against plaintiff in the amount of $24,730.00, plus interest accrued through the time of trial at the legal rate of six per cent (6%), costs of suit, and such other and further relief as the Court deems fair and just. - 18 - COUNTERCLAIM II (Quasi-contract) 82. Defendant incorporates here by reference the foregoing paragraphs 67 through 81 of its counterclaim, as if fully restated. 83. In the alternative, an obligation in quasi-contract should be imposed on plaintiff by law and for reasons of justice. 84. Plaintiff caused a benefit to be conferred on herself, whereby she made an unauthorized gift of her employer's property to Mr. Elrod, in order (on information and belief) to promote and enhance her personal relationship with Mr. Elrod and curry romantic favors expected in return for the gift. 85. The benefit conferred on plaintiff had a value of $24,730.00, as represented by the auction ,ralue of the vehicles in question, plus interest at the legal rate of six per cent (6%) as a reasonable measure of the accrued additional value of the benefit over time. 86. Plaintiff accepted and retained such benefits under circumstances in which it would be unconscionable for her to retain them without payment of value. 87. Plaintiff will thereby be unjustly enriched unless the Court grants defendant such relief on its counterclaim as equity and justice require. - 19 - WHEREFORE, defendant requests that this Honorable Court award judgment in its favor and against pla.intiff, in an amount to be determined at trial, together with costs of suit and such other and further relief as the Court deems fair and just. COUNTERCLAIM III (Conversion) 88. Defendant incorporates here by reference the foregoing paragraphs 67 through 87 of its counterclaim, as if fully restated. 89. Through the conduct alleged herein, plaintiff wrongfully converted defendant's property, consisting of the vehicles in question, to her own use and benefit without defendant's consent and without lawful justification. 90. Defendant has been damaged by plaintiff's conversion of defendant's property, in the amount of at least $24,730.00, as represented by the auction value of the vehicles in question. WHEREFORE, defendant requests that this Honorable Court award judgment in its favor and against plaintiff, in an amount to be determined at trial, together with costs of suit and such other and further relief as the Court deems fair and just. - 20 - . COUNTERCLAIM IV (Fraud) 91. Defendant incorporates here by reference the foregoing paragraphs 67 through 90 of its counterclaim, as if fully restated. 92. Plaintiff falsely represented to defendant that the vehicles in question had been sold to Mr. Elrod in the ordinary course of business, in return for immediate payment or a promise to promptly re-pay the full purchase price in accordance with a short-term credit accommodation extended by plaintiff. 93. Such misrepresentations were false, were known by plaintiff to be false, and were material to the transaction at hand, in that plaintiff never intended to make any effort to collect payment for the vehicles from Mr. Elrod, nor did she do so. 94. Plaintiff actively concealed from defendant the fact that she had not collected payment for the vehicles from Mr. Elrod and that she never intended to do so. 95. Plaintiff actively concealed from defendant the fact that she had intended to make a gift of the vehicles to Mr. Elrod. - 21 - . 96. Plaintiff's misrepresentations and concealment of material facts were made with the intent of inducing defendant's reliance on an assumed set of facts that were not true. 97. Defendant justifiably relied on plaintiff's misrepresentations, to its detriment. 98. As a proximate result of its reliance on plaintiff's misrepresentations and deceit, defendant has been damaged in the amount of at least $24,730.00, as represented by the auction value of the vehicles in question. WHEREFORE, defendant requests that this Honorable Court award judgment in its favor and against plaintiff, in an amount to be determined at trial, together with costs of suit and such other and further relief as the Court deems fair and just. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: November 20, 2002 C~,~ By Charles W. Rubendall II I.D. # 23172 Stephen L. Grose I.D. # 31006 Donald M. Lewis III I.D. # 58510 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010 and 255-8052 Attorneys for defendant - 22 - VERIFICATION The undersigned, Stanley W. Hoynitski, hereby verifies and states that: 1. He is Board Chairman of Harrisbur9 Auto Auction, defendant herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoin9 answer with new matter and counterclaim are true and correct to the best of his knowledge, information, and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. Sec. 4904, relating to unsworn falsification to authorities. Dated: November~, 2002 . . CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 KEEFER \ll00D ALLEN & RAHAL, LLP ( l~---llI---- By Charles W. Rubendall II Dated: November 20, 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Harrisburg Auto Auction c/o Charles W. Rubendall, II, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: ~~ ~/ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, Pennsylvania 17401 Supreme Ct. LD. #59052 (717) 845-3674 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, : No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant : JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO NEW MATTER AND ANSWER AND NEW MATTER TO COUNTERCLAIM AND NOW, TO WIT, this 23' day of December, 2002, comes the Plaintiff, Tana L. Haldeman, by her attorneys, Blakey, Yost, Bupp & Rausch, LLP and files the within pleading, as follows: RESPONSE TO NEW MATTER 43. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 44. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 45. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 46. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. By way of further response, Defendant asserted this defense in its Preliminary Objections and this Court's Order dated 10/31/02 denied the defense. 47. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 48. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 49. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. By way of further response, even if a jury trial is barred under one of the statutes under which the suit is brought, it is allowed under other statutes under which the suit is brought. 50. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 51. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 52. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 2 53. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 54. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 55. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proofthereof demanded at trial. By way of further response, Plaintiff avers that there was nobody to whom she could report, in that it was Defendant's President, Stanley Hoynitski, who was exhibiting the illegal conduct. 56. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. By way of further response, Plaintiff avers that there was nobody to whom she could report, in that it was Defendant's President, Stanley Hoynitski, who was exhibiting the illegal conduct. 57. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. By way of further response, Plaintiff avers that she did, on more than one occasion, advise Mr. Hoynitski that his conduct was unwelcome and/or offensive and that it should cease immediately. 58. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof 3 demanded at trial. By way of further response, Plaintiff avers that there was nobody to whom she could report, in that it was Defendant's President, Stanley Hoynitski, who was exhibiting the illegal conduct. 59. Denied. The allegations in this paragraph are denied and strict proofthereof demanded at trial. 60. Denied. The allegations in this paragraph are denied and strict proofthereof demanded at trial. 61. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 62. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 63. Denied. The allegations in this paragraph are denied and strict proofthereof demanded at trial. 64. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 65. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. 4 66. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, the allegation in this paragraph is denied and strict proof thereof demanded at trial. ANSWERTOCOUNTERCL~I 67. Admitted. 68. Admitted. 69. Admitted. By way of further response, Plaintiff avers that she fulfilled the implied duties as set forth in this paragraph and strict proof thereof to the contrary is demanded at trial. 70. Denied. Any credit extended to customers was solely under the authorization and/or direction of Stanley Hoynitski, Todd Hoynitski and/or Lynn Weaver and strict proofthereofto the contrary is demanded at trial. 71. Denied. Plaintiff never had the authority to extend credit to customers. Any credit extended to customers was solely under the authorization and/or direction of Stanley Hoynitski, Todd Hoynitski and/or Lynn Weaver. By way of further response, all credit authorization slips were initialed by Stanley Hoynitski and given to the settlement derks. Strict proof to the contrary of the foregoing is demanded at trial. 72. Admitted in part, denied in part. It is admitted that there was a personal relationship between the Plaintiff and Mr. Elrod. The implication that the personal relationship in any way affected the performance of Plaintiffs duties with Defendant is denied and strict proofthereof demanded at trial. 5 73. Denied. Plaintiff never had the authority to extend credit to customers. Any credit extended to customers was solely under the authorization and/or direction of Stanley Hoynitski, Todd Hoynitski and/or Lynn Weaver. By way of further response, all credit authorization slips were initialed by Stanley Hoynitski and given to the settlement clerks. Strict proof to the contrary of the foregoing is demanded at trial. 74. Denied. Plaintiff never had the authority to extend credit to customers. Any credit extended to customers was solely under the authorization and/or direction of Stanley Hoynitski, Todd Hoynitski and/or Lynn Weaver. By way of further response, all credit authorization slips were initialed by Stanley Hoynitski and given to the settlement derks. Further, Plaintiff is unaware of any outstanding balance allegedly owed by Mr. Elrod to Defendant, as that information was in the sole possession of Stanley Hoynitski, along with the titles to the vehicles on which he granted credit authorization. Strict proof to the contrary of the foregoing is demanded at trial. 75. Denied. Plaintiff never had the authority to extend credit to customers. Any credit extended to customers was solely under the authorization and/or direction of Stanley Hoynitski, Todd Hoynitski and/or Lynn Weaver. By way of further response, all credit authorization slips were initialed by Stanley Hoynitski and given to the settlement derks. Further, Stanley Hoynitski, Defendant's President, was aware of the removal of any vehicles on which he authorized an extension of credit as he initialed the gold copy of the invoice that was given to the customer for proffering in the settlement area and to the security guard at the exit gate. Strict proof to the contrary of the foregoing is demanded at trial. 6 76. Denied. It is specifically denied that Plaintiff processed any paperwork for Mr. Elrod other than as authorized and directed by Stanley Hoynitski. By way of further response, Plaintiff avers that all vehicle titles were held in a file until the purchase price was paid in full or Stanley Hoynitski authorized release of the title to the customer. Strict proof to the contrary of the foregoing is demanded at trial. 77. Denied. It is specifically denied that Plaintiff created any credit arrangement with or for Mr. Elrod. By way f further response, it is denied that Plaintiff took no action relative to any monies owed by Mr. Elrod to Defendant; to the contrary, Stanley Hoynitski directed Plaintiff to contact Mr. Elrod -- as well as any other dealer to whom credit had been extended by Stanley Hoynitski on behalf of Defendant - to inquire about payment. Further, on more than on occasion Plaintiff telephoned Mr. Elrod and turned over the call to Stanley Hoynitski. 78. Denied. The allegations of this paragraph are denied and strict proof thereof to the contrary demanded at trial. By way of further answer, Plaintiff avers that Stanley Hoynitski was aware of every vehicle purchased by Mr. Elrod and the amount owed to Defendant by Mr. Elrod, in that it was Stanley Hoynitski who authorized the credit extension on such vehicles. Further, Stanley Hoynitski and Mr. Elrod had an arrangement through which Stanley Hoynitski "expected to make Mr. Elrod rich some day". Additionally, Stanley Hoynitski even gave some vans that were not salable in Pennsylvania to Mr. Elrod at no charge so that Mr. Elrod could take them to Georgia. 79. Denied that any such collection obligation exists since Plaintiff had no authority to extend credit to customers. Strict proof to the contrary is demanded at trial. 7 80. Denied. The allegation in this paragraph is denied and strict proof to the contrary demanded at trial. By way of further response, Plaintiff fulfilled any obligation she had to Defendant in attempting to collect from Mr. Elrod such monies as directed by Stanley Hoynitski, who was in sole possession ofthe files relative to any credit extended to Mr. Elrod at Stanley Hoynitski's direction/authorization. 81. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proofto the contrary demanded at trial. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the allegations under Count I of the Counterclaim, enter judgment in her favor on the Count, and for such other relief as may be just and proper. ANSWER TO COUNTERCLAIM II 82. Plaintiff incorporates by reference her responses to Paragraphs 67-81 above as if set forth at length. 83. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proof to the contrary demanded at trial. 84. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. By way of further response, Plaintiff avers that it would have been impossible for her to make gifts of Defendant's property since the sale had to balance at the end of each day. Everything - dealers who sold cars and were issued checks by Defendant, dealers who purchased cars and paid by cash or check, service charges by Defendant to buyers and sellers, fees for "hold check", "open" or "stay open" status - had to balance at the end of each day. Summary sheets were given to Stanley Hoynitski, Todd Hoynitski, Lynn Weaver, Harry (the bookkeeper), and to the office manager after every sale. 8 85. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proof to the contrary demanded at trial. By way of further response, Plaintiff has no knowledge of any balance owed by Mr. Elrod to Defendant, as that information was within the sole possession of Stanley Hoynitski at the time Plaintiff's employment was terminated. 86. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. 87. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proof to the contrary demanded at trial. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the allegations under Count II of the Counterclaim, enter judgment in her favor on the Count, and for such other relief as may be just and proper. ANSWER TO COUNTERCLAIM ill 88. Plaintiff incorporates by reference her responses to Paragraphs 67-87 above as if set forth at length. 89. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proof to the contrary demanded at trial. Plaintiff further avers that any action she took or did not take was at the express direction, and with the express authorization, of Stanley Hoynitski. 90. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proof to the contrary demanded at trial. 9 WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the allegations under Count III of the Counterclaim, enter judgment in her favor on the Count, and for such other relief as may be just and proper. ANSWER TO COUNTERCLAlM IV 91. Plaintiff incorporates by reference her responses to Paragraphs 67-90 above as if set forth at length. 92. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. By way of further response, Plaintiff avers that Mr. Elrod and Stanley Hoynitski had worked out an arrangement and any actions taken (or not taken) by Plaintiff were at the express direction, and with the express authorization, of Stanley Hoynitski. 93. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. By way of further response, Plaintiff avers that Defendant continued to transact business with Mr. Elrod for a period of approximately one year after the personal relationship between Plaintiff and Mr. Elrod ended. 94. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. By way of further response, Plaintiff fulfilled any obligation she had to Defendant in attempting to collect from Mr. Elrod such monies as directed by Stanley Hoynitski. 95. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. 96. Denied. The allegations in this paragraph are denied and strict proof thereof demanded at trial. By way of further response, Plaintiff avers that all actions she took (or did not take) were at the express direction of, and with authorization by, Stanley Hoynitski. 10 97. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proofto the contrary demanded at trial. 98. This paragraph states a legal conclusion to which no response is required. To the extent a response is required, same is denied and strict proof to the contrary demanded at trial. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the allegations under Count IV of the Counterclaim, enter judgment in her favor on the Count, and for such other relief as may be just and proper. NEW MATTER/AFFIRMATIVE DEFENSES TO COUNTERCLAIMS 99. Plaintiff incorporates by reference her responses to Paragraphs 67-98 above as if set forth at length. 100. Defendant's counterclaims fail to state a claim upon which relief may be granted. 101. Defendant's counterclaims are barred by the doctrines of waiver, estoppel and laches. 102. Defendant's counterclaims continue the illegal retaliation practiced against Plaintiff. 103. Defendant's counterclaims are barred by the doctrine of unclean hands as any action taken (or not taken) by Plaintiff was solely at the express direction of, and direct authorization by, Stanley Hoynitski, Defendant's President at the time of termination of Plaintiffs employment. 104. Defendant's counterclaims are barred, in whole or part, by reason of its failure to mitigate its alleged damages. 11 105. Any and all damages allegedly incurred by Defendant were the proximate result of its own actions or failure to act. 106. Up to and including the time of termination of Plaintiff s employment any and all credit extended to any dealer was at the express order by and approval of Stanley Hoynitski,' s President, as shown on sheets initialed by him and handed to the settlement clerks. 107. Up to and including the time of termination of Plaintiff s employment, any information relative to credit extended to Mr. Elrod, which credit was at the express direction of and under authorization by Stanley Hoynitski, Defendant's President, was retained in a file or files kept in Stanley Hoynitski's possession. 108. Up to and including the time of termination of Plaintiffs employment, all credit extended to dealers was at the express direction of, and under authorization by, Stanley Hoynitski, Defendant's President. 109. Up to and including the time of termination of Plaintiffs employment, Stanley Hoynitski, Defendant's President, initialed the gold copy of invoices provided to the buying dealer so that a "stay open" (indicating that the dealer would pay at a later date but could take possession of the vehicle on the date of sale) could be indicated by the settlement clerks and the vehicle removed from the lot past the security gate. 110. Up to and including the time of termination of Plaintiffs employment, vehicle titles were held in a file until the purchase price was paid in full or Stanley Hoynitski, Defendant's President, authorized release ofthe title to the dealer. 111. On more than one occasion, under the direction of Stanley Hoynitski, Defendant's President, Plaintiff contacted Mr. Elrod by phone so that Stanley Hoynitski could speak with him. 12 112. Up to and including the time oftermination of Plaintiffs employment, Stanley Hoynitski, Defendant's President, was aware of each and every vehicle purchased by Mr. Elrod and the amount owed by Mr. Elrod to Defendant on account of vehicle purchases. 113. Further, up to and including the time of termination of Plaintiffs employment, there was an arrangement between Stanley Hoynitski, Defendant's President, and Mr. Elrod that was to "make Mr. Elrod rich some day" and which included Stanley Hoynitski giving Mr. Elrod vans that were not salable in Pennsylvania to be taken to Georgia. 114. Up to and including the time of termination of Plaintiffs employment, Defendant, through Stanley Hoynitski, its President, transacted business with Jeffrey Elrod, Coy Elrod's son, under the same arrangements as those which were authorized for Coy Elrod by Stanley Hoynitski. 115. Up to and including the time of termination of Plaintiffs employment, and after every Thursday sale held by Defendant, Lynn Weaver, Defendant's General Manager, requested that Coy Elrod obtain beer from a nearby distributor, after which Weaver, Elrod, Stanley Hoynitski (Defendant's President), Todd Hoynitski (Defendant's Vice-President), and other dealers would sit in Weaver's office, drink beer, and make arrangements relative to the dealers' purchase of the remaining vehicles not sold at the auction that day. 116. Up to and including the time oftermination of Plaintiffs employment, and after the events described in Paragraph 115, supra, Weaver would initial the gold copies ofthe relevant documents in order that credit be extended to the dealers for the vehicles they were purchasing. 13 117. In late 1999 or early 2000, Defendant, through its President, Stanley Hoynitski, had a conversation with Coy Elrod relative to sending a car hauler to Georgia to retrieve the vehicles given to Elrod by Hoynitski, selling them through Defendant's auction process, and then writing off the balance due by Mr. Elrod to Defendant as a loss. 118. Plaintiff believes, and therefore avers, that the arrangement offered by Defendant, through its President, Stanley Hoynitski, as set forth in Paragraph 115 supra, did not come to fruition. 119. Up to and including the time oftermination of Plaintiffs employment, sales were required to balance at the end of the day, including checks issued by Defendant to dealers who sold vehicles, checks or cash paid by dealers purchasing vehicles, service charges by Defendant to the buying and selling dealers, and fees charged ($100.00 per vehicle) for "hold check", "open" or "stay open" status. 120. Up to and including the time of termination of Plaintiffs employment, a summary sheet of each sale was written up (usually by Judy Hager) and provided to Stanley Hoynitski, Defendant's President, Todd Hoynitski, Defendant's Vice-President and Stanley's son, Lynn Weaver, Defendant's General Manager, Harry the bookkeeper, and to Plaintiff. 121. Up to and including the time of termination of Plaintiffs employment, the settlement sheet included information on any "opens" (where the dealer was approved by Stanley Hoynitski, Defendant's President, to purchase vehicles at the sale and send payment the next day or the following Monday), "stay opens" (where Stanley Hoynitski, Defendant's President, authorized a line of credit or other deal by which the dealer could pay for the vehicle to be purchased upon sale of the vehicle by the dealer and Defendant -- through Stanley Hoynitski - held the vehicle title until payment was received or Stanley Hoynitski authorized to the 14 contrary), and "hold checks" (where the dealer could take possession ofthe vehicle, along with the vehicle title, and would notify Defendant when the dealer had sold the vehicle and had money in his/its account such that Defendant could deposit the dealer's check in payment of the vehicle). 122. Up to and including the time of termination of Plaintiffs employment, Defendant's insurer did not permit actions such as the "open", "stay open" or "hold check" transactions practiced by Defendant at the direction of Stanley Hoynitski, Defendant's President. 123. Up to and including the time of termination of Plaintiffs employment, none of the "open", "stay open" or "hold check" transactions could be turned in to Defendant's insurer. 124. Up to and including the time of termination of Plaintiffs employment, all sales were to be turned in to Defendant's insurance carrier for coverage purposes. 125. Up to and including the time oftermination of Plaintiffs employment, up to eighty (80%) percent of most losses suffered by Defendant would be covered by insurance if the matter giving rise to the loss were permitted by the carrier's rules/regulations/conditions. 126. Up to and including the time of termination of Plaintiffs employment, any amount not covered by insurance was to be collected from the dealer. 127. Up to and including the time oftermination of Plaintiffs employment, any dealer causing a loss to Defendant was to be put into a K.O. book (book of bad dealers) to be distributed to all participating auctions across the nation, thereby preventing the dealer from transacting business with any of those participating (since the insurance carrier would not cover losses from a dealer listed in the book). 15 128. Up to and including the time of termination of Plaintiffs employment, Defendant was unable to report all sales to its insurance carrier since some were related to "open", "stay open" or "hold check" transaction for which no deposits were made with the rest of the sale and which transactions were not permitted by the carrier. 129. Up to and including the time oftermination of Plaintiffs employment, transactions approved by Defendant, through its President, Stanley Hoynitski, on an "open", "stay open" or "hold check" basis caused losses to Defendant for which it did not and could not lay claim to its insurance carrier. 130. Up to and including the time oftermination of Plaintiffs employment, one or more of the "open", "stay open" or "hold check" transactions approved by Defendant, through its President, Stanley Hoynitski, that caused losses to Defendant for which it did not and could not lay claim to its insurance carrier were transactions with Coy Elrod. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order as follows: ~ Denying and dismissing Defendant's Counterclaims ~ Entering judgment in favor of Plaintiff and against Defendant on the Complaint and Counterclaim, including but not limited to a. Making Plaintiff whole, including but not limited to, an award of back pay, front pay, and/or reimbursement of attorney fees; b. Eliminating all unlawful discriminatory practices and procedures by Defendant; c. Remedying the discriminatory effect of past practices and procedures; d. Taking further affirmative action as necessary and appropriate to remedy the violations described herein; 16 e. Entering an award for liquidated and punitive damages; f. Entering an award for such pay and/or benefits that Plaintiff should have received after her termination had she been allowed to perform her employment; and ~ For such other equitable and legal relief as may be just and proper. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: A~~ Sara A. Austin, Esquire Counsel for Plaintiff 17 East Market Street York, PA 17401 (717) 845-3674 Supreme Ct. J.D. #59052 17 VERIFICATION I hereby verify that the information set forth in the foregoing document is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: 12./23/02- I BY:.t--.I. -1J-IM~ Tana L. Haldeman CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the foregoing document to be served on the following person in the manner indicated: By First Class United States Mail on: Charles W. Rubendall, II, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 Counsel for Defendant BLAKEY, YOST, BUPP & RAUSCH, LLP By: YJ!1ff;'I1J ,~ orma M. Doll, paralegal 17 East Market Street York, Pennsylvania 17401 (717) 845-3674 Dated: /~/~/tJ~ , I 18 () c ~- \J{iJ ''Tir";: ~ f~~;} S~!~-~. r"""r-, -~ '-....... ?;C) j;:.:~ :.:2" :3 , o ; 'J o i r"1 .,~-) l"...) G\ o "q "~ '~r~ ,JJ ~18~ .~')(~ :'":;1"11 ......-...J ?5 -< -") :',) ::::> +-.. TANA L. HALDEMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 DEFENDANT'S REPLY TO NEW MATTER OF PLAINTIFF IN RESPONSE TO DEFENDANT'S COUNTERCLAIMS NOW COMES defendant, Harrisburg Auto Auction, to reply to the new matter/affirmative defenses asserted by plaintiff in response to the counterclaims filed against her by defendant, averring as follows: 99. This paragraph merely incorporates other paragraphs by reference and no response by defendant is necessary. 100. Denied, this assertion is merely a legal conclusion to which no response by defendant is necessary. 101. Denied, this assertion is merely a legal conclusion to which no response by defendant is necessary. 102. Denied, this assertion is merely a legal conclusion to which no response by defendant is necessary. 103. Denied, this assertion is merely a legal conclusion to which no response by defendant is necessary. By way of further answer, the counterclaims stated against plaintiff relate to actions on her part that were not undertaken at the express direction of or authorized by any officer of defendant, including but not limited to Stanley Hoynitski. 104. Denied, this assertion is merely a legal conclusion to which no response by defendant is necessary. 105. Denied, this assertion is merely a legal conclusion to which no response by defendant is necessary. 106. Denied. The extension of credit was a prerogative of defendant's officers, but plaintiff went outside of the office procedure by providing credit to Mr. Elrod without authorization to do so. 107. Denied. Credit extended to Mr. Elrod and to others was documented in files to which defendant's officers had access, but plaintiff went outside of the office procedure by providing credit to Mr. Elrod without authorization to do so. 108. Denied. The extension of credit was a prerogative of defendant's officers, but plaintiff went outside of the office procedure by providing credit to Mr. Elrod without authorization to do so. 109. Denied. The extension of credit was a prerogative of defendant's officers, but plaintiff went outside of the office - 2 - procedure by providing credit to Mr. Elrod without authorization to do so. 110. Denied. Credit extended to Mr. Elrod and to others was documented in files to which defendant's officers had access, but plaintiff went outside of the office procedure by providing credit to Mr. Elrod without authorization to do so. 111. Admitted. 112. Admitted in part and denied in part. Mr. Hoynitski was aware that Mr. Elrod had been allowed to leave the auction premises with vehicles for which he had not paid and that money was owed to defendant. On the other hand, the circumstances allowing these facts to exist resulted from plaintiff's misconduct as outlined in defendant's counterclaims. 113. Denied. Defendant denies that Mr. Hoynitski and Mr. Elrod had any business arrangement different from the arrangements that all dealers doing business with defendant normally pursued, and defendant further denies that Mr. Elrod was given any vehicles that could not be sold in Pennsylvania or otherwise. 114. Admitted in part and denied in part. Defendant admits that it may have done business with Jeffrey Elrod, who is Coy Elrod's son. Defendant denies, however, that there were any - 3 - special arrangements between it and Jeffrey Elrod or between it and Coy Elrod, different from those under which all dealers did business with defendant. 115. Denied. Defendant denies that there were any after- auction meetings involving Coy Elrod in which arrangements were made relative to dealers' purchase of remaining vehicles not sold at the auction on a given auction day. 116. Admitted in part and denied ln part. Defendant admits that at times defendant's officers, including Mr. Weaver, would initial the gold copies of sale documents in order to extend credit to dealers. Defendant denies that any such extensions of credit resulted from any meeting(s) involving Coy Elrod and defendant's officers. 117. Admitted in part and denied in part. Defendant admits that to obtain payment for vehicles that had been improperly released to Mr. Elrod, Mr. Hoynitski had discussed with him the retrieval of said vehicles. Defendant denies, on the other hand, that this step was anything more than an effort to mitigate the loss already caused to it by plaintiff's misconduct. 118. Denied. Defendant does not understand this allegation, as the reference to paragraph 115 is apparently mistaken. Nevertheless, defendant denies that any arrangements - 4 - proposed to Mr. Elrod were anything more than an effort to offset a loss already caused to it by plaintiff's misconduct. 119. Admitted. 120. Admitted. 121. Admitted. 122. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 123. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 124. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 125. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 126. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 127. Admitted in part and denied in part. Defendant admits that auction businesses across the country share information with - 5 - regard to dealers who have caused losses to auction businesses. Defendant denies, however, that there is a uniform policy of transmitting information with regard to dealers that have caused losses to auction businesses and further denies that any such sharing of information would effectively prevent a dealer from transacting business with any auction business in any part of the country. 128. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 129. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. 130. Denied. Defendant's insurer had no particular position with regard to how defendant conducted its business or extended credit to dealers. WHEREFORE, defendant respectfully requests this Honorable Court to dismiss the new matter and affirmative defenses set forth by plaintiff in response to defendant's counterclaims and - 6 - - to grant judgment in defendant's favor and against plaintiff on those counterclaims, together with interest and costs of suit. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: January 27, 2003 By (' tvt,f ~ ~ Charles W. Rubendall II I.D. # 23172 Stephen L. Grose I.D. # 31006 Donald M. Lewis III I.D. # 58510 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010 and 255-8052 Attorneys for defendant - 7 - . VERIFICATION The undersigned, Lynn Weaver, hereby verifies and states that: 1. He is General Manager of Harrisburg Auto Auction, defendant herein; 2. He is authorized to meke this "'verification on its behalf; 3. The facts set forth in the foregoing reply to new matter are true and correct to the best of his knowledge, information, and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. Sec. 4904, relating to unsworn falsification to authorities. b-0-t;).Q~ Lyn Weaver Dated: January \~ , 2003 .. CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 KEEFER WOOD ALLEN & RAHAL, LLP C~~ By Charles W. Rubendall II Dated: January 27, 2003 ~ . , TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERL~ COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION AND DOCUMENTS WHEREAS, the parties to the above-captioned action intend to exchange information and documents pursuant to the Pennsylvania Rules of Civil Procedure for use in the above-captioned litigation only, and WHEREAS the parties agree that certain of the documents to be exchanged contain confidential material, the parties hereby agree to be bound by the terms of this stipulated protective order regarding confidential information and documents in order to maintain the asserted confidentiality of certain information and documents to be produced. The parties stipulate and agree to the following: 1. All the information and documents provided by defendant Harrisburg Auto Auction (hereinafter "defendant") to plaintiff Tana L. Haldeman (hereinafter "plaintiff") regarding defendant's former or current employees, including but not limited to all information and documents containing personal information (e.g., Social Security numbers, birth dates, etc.) and/or related to their respective hiring and/or discharge, evaluations, salaries, filing of discrimination and/or harassment claims, etc., are considered by the parties as confidential. 2. All documents and other information considered confidential shall be used solely for the purpose of conducting the instant litigation between the parties. Except as the Court may otherwise expressly direct or the parties may agree otherwise, such designated documents or information may be disclosed only to the following persons: (a) Counsel of record who are actively engaged in the conduct of this litigation, and the partners, associates, secretaries, paralegals, employees, translators and other third-party clerical/photocopying contractors (provided they are not affiliated with a party) working with them or under their supervision, to the extent reasonably necessary to render professional services in the litigation to the parties to this action; (b) Authors and original and copied addressees of such confidential material; (c) Court officials involved in this litigation (including court reporters, official translators, persons operating video recording equipment at - 2 - depositions or at trial, and any special master appointed by the Court); and (d) Each individual party or their respective expert witnesses. The producing party is not restricted by this order in the use of its own confidential information and documents. Confidential information and documents may be disclosed to a person listed in the preceding paragraph only after such person has been shown a copy of this order and has been advised of the terms and conditions of this order, and agrees to be bound by same by executing the form attached hereto as Exhibit "A." 3. All documents and other material deemed to contain confidential information shall be marked, stamped or otherwise identified as "Confidential." This designation shall make all items so marked, stamped or otherwise identified, and all copies or other reproductions of said items, subje~t to this order. 4. If any papers filed with the Court contain confidential information or documents pursuant to this order, the filing party shall file those papers under seal in an envelope on which shall be endorsed the caption of this action, and the words: "CONFIDENTIAL - FILED UNDER SEAL." A copy of this order shall be attached thereto. - 3 - 5. Except to the extent expressly authorized by this order, confidential information and documents shall not be used or disclosed for any purpose other than the preparation and trial of the above-captioned case and/or any appeal therefrom. The parties further specifically stipulate and agree that any confidential information produced or disclosed in this litigation shall be used by the parties solely in connection with and for the purposes of this litigation, and not for any business, technical (including intellectual property development or protection), litigation (including intellectual property litigation) or governmental purpose or function, and that such confidential information or documents shall not be disclosed to anyone except as provided herein. 6. Any summary, compilation, notes or copy containing confidential information or any electronic image or database containing confidential information shall be subject to the terms of this order to the same extent as the material or information for which such summary, compilation, notes, copy, electronic image or database is made or derived. 7. Inadvertent failure to designate any information pursuant to this order or to assert a claim of privilege or work product immunity shall not constitute a waiver of any otherwise valid claim for protection. In the case of an inadvertent - 4 - failure to identify a document or information as confidential, arrangements shall be made for the designating party to substitute properly labeled copies. In the case of inadvertently produced privileged and/or work product documents, upon request of the producing party, the documents shall be returned forthwith to the party claiming privilege and/or work product immunity. 8. Nothing in this order shall be deemed to restrict in any manner the use by any designated party of any confidential information in its own documents and materials. 9. A copy of this order shall be served with any subpoena or deposition notice compelling the production of confidential documents or information from any third party. 10. This Court will have continuing jurisdiction to modify, amend, enforce, interpret or rescind this order, notwithstanding the termination of this action. 11. Within sixty (60) days after conclusion of this action, all documents and materials containing confidential information (other than exhibits to the official court record) shall be returned to the designating party or, at the sole option of the designating party, shall be destroyed. Counsel for any party or third party receiving confidential information shall make written certification of compliance with this provision and shall deliver - 5 - the same to counsel for each designating party within one hundred twenty (120) days after the conclusion of this action. 12. Any unauthorized inadvertent disclosure of confidential documents or information shall not result in a waiver of the producing party's claim of confidentiality. 13. The terms of this order shall survive and remain in full force and effect after the termination of this lawsuit. 14. This order shall not prevent the parties from seeking further or additional protective orders. The terms and provisions of this order are subject to modification, extension of limitation as may be hereinafter agreed to by all parties in writing or by further order of this Court. BLAKEY YOST BUPP & RAUSCH, LLP KEEFER WOOD ALLEN & RAHAL, LLP Sara A. Austin 17 East Market Street York, PA 17401 By { w,f-,~/~ By f-, -- Charles W. Rubendall II 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for plaintiff Attorneys for defendant So ordered by the Court this day of 2003. J. - 6 - J~" v TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION AND DOCUMENTS WHEREAS, the parties to the above-captioned action intend to exchange information and documents pursuant to the Pennsylvania Rules of Civil Procedure for use in the above-captioned litigation only, and WHEREAS the parties agree that certain of the documents to be exchanged contain confidential material, the parties hereby agree to be bound by the terms of this stipulated protective order regarding confidential information and documents in order to maintain the asserted confidentiality of certain information and documents to be produced. The parties stipulate and agree to the following: 1. All the information and documents provided by defendant Harrisburg Auto Auction (hereinafter "defendant") to plaintiff Tana L. Haldeman (hereinafter "plaintiff") regarding defendant's former or current employees, including but not limited to all information and documents containing personal information (e.g., Social Security numbers, birth dates, etc.) and/or related to their respective hiring and/or discharge, evaluations, salaries, filing of discrimination and/or harassment claims, etc., are considered by the parties as confidential. 2. All documents and other information considered confidential shall be used solely for the purpose of conducting the instant litigation between the parties. Except as the Court may otherwise expressly direct or the parties may agree otherwise, such designated documents or information may be disclosed only to the following persons: (a) Counsel of record who are actively engaged in the conduct of this litigation, and the partners, associates, secretaries, paralegals, employees, translators and other third-party clerical/photocopying contractors (provided they are not affiliated with a party) working with them or under their supervision, to the extent reasonably necessary to render professional services in the litigation to the parties to this action; (b) Authors and original and copied addressees of such confidential material; (c) Court officials involved in this litigation (including court reporters, official translators, persons operating video recording equipment at - 2 - . , depositions or at trial, and any special master appointed by the Court); and (d) Each individual party or their respective expert witnesses. The producing party is not restricted by this order in the use of its own confidential information and documents. Confidential information and documents may be disclosed to a person listed in the preceding paragraph only after such person has been shown a copy of this order and has been advised of the terms and conditions of this order, and agrees to be bound by same by executing the form attached hereto as Exhibit "A." 3. All documents and other material deemed to contain confidential information shall be marked, stamped or otherwise identified as "Confidential." This designation shall make all items so marked, stamped or otherwise identified, and all copies or other reproductions of said items, subject to this order. 4. If any papers filed with the Court contain confidential information or documents pursuant to this order, the filing party shall file those papers under seal in an envelope on which shall be endorsed the caption of this action, and the words: "CONFIDENTIAL - FILED UNDER SEAL." A copy of this order shall be attached thereto. - 3 - 5. Except to the extent expressly authorized by this order, confidential information and documents shall not be used or disclosed for any purpose other than the preparation and trial of the above-captioned case and/or any appeal therefrom. The parties further specifically stipulate and agree that any confidential information produced or disclosed in this litigation shall be used by the parties solely in connection with and for the purposes of this litigation, and not for any business, technical (including intellectual property development or protection), litigation (including intellectual property litigation) or governmental purpose or function, and that such confidential information or documents shall not be disclosed to anyone except as provided herein. 6. Any summary, compilation, notes or copy containing confidential information or any electronic image or database containing confidential information shall be subject to the terms of this order to the same extent as the material or information for which such summary, compilation, notes, copy, electronic image or database is made or derived. 7. Inadvertent failure to designate any information pursuant to this order or to assert a claim of privilege or work product immunity shall not constitute a waiver of any otherwise valid claim for protection. In the case of an inadvertent - 4 - failure to identify a document or information as confidential, arrangements shall be made for the designating party to substitute properly labeled copies. In the case of inadvertently produced privileged and/or work product documents, upon request of the producing party, the documents shall be returned forthwith to the party claiming privilege and/or work product immunity. 8. Nothing in this order shall be deemed to restrict in any manner the use by any designated party of a.ny confidential information in its own documents and materials. 9. A copy of this order shall be ser~red with any subpoena or deposition notice compelling the production of confidential documents or information from any third party. 10. This Court will have continuing jurisdiction to modify, amend, enforce, interpret or rescind this order, notwithstanding the termination of this action. 11. Within sixty (60) days after conclusion of this action, all documents and materials containing confidential information (other than exhibits to the official court record) shall be returned to the designating party or, at the sole option of the designating party, shall be destroyed. Counsel for any party or third party receiving confidential information shall make written certification of compliance with this provision and shall deliver - 5 - the same to counsel for each designating party within one hundred twenty (120) days after the conclusion of this action. 12. Any unauthorized inadvertent disclosure of confidential documents or information shall not result in a waiver of the producing party's claim of confidentiality. 13. The terms of this order shall survive and remain in full force and effect after the termination of this lawsuit. 14. This order shall not prevent the parties from seeking further or additional protective orders. The terms and provisions of this order are subject to modification, extension of limitation as may be hereinafter agreed to by all parties in writing or by further order of this Court. BLAKEY YOST BUPP & RAUSCH, LLP KEEFER WOOD ALLEN & RAHAL, LLP By ~ Sara A. Austin 17 East Market Street York, PA 17401 By ( w,f-,~- Charles W. Rubendall II 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for plaintiff Attorneys for defendant So ordered by the Court this day of 2003. J. - 6 - C) ~~ g;/~'- 273 !',:.- ~. ~~~~ " S'! , ':0 ~ T\) C::J " . "-...1~,! () -i] .,-jg . ;} ':;] Co ") -~ j!:..r? MAR 1 9 2003 \s TANA L. HALDEMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION AND DOCUMENTS WHEREAS, the parties to the above-captioned action intend to exchange information and documents pursuant to the Pennsylvania Rules of Civil Procedure for use in the above-captioned litigation only, and WHEREAS the parties agree that certain of the documents to be exchanged contain confidential material, the parties hereby agree to be bound by the terms of this stipulated protective order regarding confidential information and documents in order to maintain the asserted confidentiality of certain information and documents to be produced. The parties stipulate and agree to the following: 1. All the information and documents provided by defendant Harrisburg Auto Auction (hereinafter "defendant") to plaintiff Tana L. Haldeman (hereinafter "plaintiff") regarding defendant's former or current employees, including but not limited to all information and documents containing personal information (e.g., Social Security numbers, birth dates, etc.) and/or related to their respective hiring and/or discharge, evaluations, salaries, rl tl- ~ ~ff l-J .. ' ~~ ~ ... " ,.(-//\/(", ~Nt;l;l"', ,. I !l ''''' Ii I,. ," / ( o.A,c~N;v::J I ? 'C' ' ",!,c'~::"''d "t..,. /./ ~'-';',~,- o,d .7:j ,{Ui"l; ,", I C" i"~l j~;'!-j't)" filing of discrimination and/or harassment claims, etc., are considered by the parties as confidential. 2. All documents and other information considered confidential shall be used solely for the purpose of conducting the instant litigation between the parties. Except as the Court may otherwise expressly direct or the parties may agree otherwise, such designated documents or information may be disclosed only to the following persons: (a) Counsel of record who are actively engaged in the conduct of this litigation, and the partners, associates, secretaries, paralegals, employees, translators and other third-party clerical/photocopying contractors (provided they are not affiliated with a party) working with them or under their supervision, to the extent reasonably necessary to render professional services in the litigation to the parties to this action; (b) Authors and original and copied addressees of such confidential material; (c) Court officials involved in this litigation (including court reporters, official translators, persons operating video recording equipment at - 2 - depositions or at trial, and any special master appointed by the Court); and ld) Each individual party or their respective expert witnesses. The producing party is not restricted by this order in the use of its own confidential information and documents. Confidential information and documents may be disclosed to a person listed in the preceding paragraph only after such person has been shown a copy of this order and has been advised of the terms and conditions of this order, and agrees to be bound by same by executing the form attached hereto as EXhibit "A." 3. All documents and other material deemed to contain confidential information shall be marked, stamped or otherwise identified as "Confidential." This designation shall make all items so marked, stamped or otherwise identified, and all copies or other reproductions of said items, Subject to this order. 4. If any papers filed with the Court Contain confidential information Or documents pursuant to this order, the filing party shall file those papers under seal in an envelope on which shall be endorsed the caption of this action, and the words, "CONFIDENTIAL - FILED UNDER SEAL." A copy of this order shall be attached thereto. - 3 - 5. Except to the extent expressly authorized by this order, confidential information and documents shall not be used or disclosed for any purpose other than the preparation and trial of the above-Captioned case and/or any appeal therefrom. The parties further specifically stipulate and agree that any confidential information produced Or disclosed in this litigation shall be Used by the parties Solely in connection with and for the purposes of this litigation, and not for any business, technical (inclUding intellectual property development or protection), litigation (including intellectual property litigation! or governmental purpose or function, and that such confidential information or documents shall not be disclosed to anyone except as provided herein. 6. Any Summary, compilation, notes or copy Containing confidential information or any electronic image or database Containing confidential information shall be subject to the terms of this order to the same extent as the material or information for which such Summary, compilation, notes, copy, electronic image or database is made or derived. 7. Inad~rtent failure to designate any information pursuant to this order or to assert a claim of privilege or work product immunity shall not Constitute a waiver of any otherwise valid claim for protection. In the case of an inadvertent - 4 - failure to identify a document or information as confidential, arrangements shall be made for the designating party to Substitute properly labeled copies. In the case of inadvertently produced privileged and/or work product documents, upon request of the produCing party, the documents shall be returned forthwith to the party claiming privilege and/or work product immunity. 8. Nothing in this order shall be deemed to restrict in any manner the USe by any designated party of any confidential information in its OWn documents and materials. 9. A COpy of this order shall be served with any subpoena Or depoSition notice compelling the production of Confidential documents or information from any third party. 10. This COurt will have Continuing jurisdiction to modify, amend, enforce, interpret Or rescind this order, notwithstanding the termination of this action. II. Within Sixty (60) days after Conclusion of this action, all documents and materials cOntaining Confidential information (other than exhibits to the official court record) shall be returned to the designating party or, at the sole option of the designating party, shall be destroyed. Counsel for any party or third party receivi~ confidential information shall ~ke written Certification of compliance with this provision and shall deliver - 5 - the same to counsel for each designating party within one hUndred twenty (120) days after the conclusion of this action. 12. Any unauthorized inadvertent disclosure of confidential documents or information shall not result in a waiver of the producing party's claim of confidentiality. 13. The terms of this order shall survive and remain in full force and effect after the termination of this lawsuit. 14. This order shall not prevent the parties from seeking further or additional protective orders. The terms and provisions of this order are subject to mOdification, extension of limitation as may be hereinafter agreed to by all parties in writing or by further order of this Court. BLAKEY YOST BUPP & RAUSCH, LLP KEEFER WOOD ALLEN & RAHAL, LLP By /-' Sara A. Austin 17 East Market Street York, PA 17401 By ( lv7ft$---- Attorneys for plaintiff Charles W. Rubendall II 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for defendant So ordered by the Court this ~day of 1'\..1 ?) (~L 2003. J. - 6 - IN THE COURT OF COMMON PLEAS I OF CUMBERLAND COUNTY, PENNSYL V MjJIA CIVIL ACTION - LAW i I TANA L. HALDEMAN, Plaintiff, No. 2002-03774 VS. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL 1EMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things purs ant to Rule (1) A notice of intent to serve the subpoena with a copy of e subpoena attached thereto was mailed or delivered to counsel for the Defendant 0 March 19, 2003; 4009.22, Plaintiff certifies that: (2) A copy of the notice of intent, including the proposed s bpoena, is attached to this certificate; (3) No objection to the subpoenas has been received; and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. l1--------- Sara A. Austin, Esquire Attorney for Plaintiff Date: ~ L"1 /6.:5 HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RUBENDALL It ROBERT L. WELDON EUGENE E. PEPINSKY, .JR. .JOHN H. ENOS m GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE .JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS CRAIG A. LONGYEAR DONALD M. LEWIS m BRIDGET M. WHITLEY .JOHN A. FEICHTEL ANN McGEE CARBON ELIZABETH .J. GOLDSTEIN BARBARA A. GALL STEPHANIE KLEINFELTER KEEFER WOOD ALLEN & RAHAL, LLP 2/0 WALNUT STREET P. o. BOX 11963 HARRISBURG, PA 17108-1963 ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C, HARRY PHONE (717) 255-8000 WEST SHORE OFFICE: 415 FALLOWFIELD ROAD CAMP HILL. PI'. 17011 (7171612-5800 EIN No. 23-0716135 www.keeferwood.com April 2, 2003 WRITER'S CONTACT INFORMATION: Voice: 255-8010 Fax: 255-8003 crubendall@keeferwoOd.com Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 Re: Haldeman v. Harrisburg Auto Auction C.C.P. Cumberland No. 2002-03774 Dear Sara: Please be advised that we do subpoena seeking records from the hand, we do not concede that this relevance to this lawsuit. CWRII/sg not object to your insurance agency. proposed discovery proposed On the other has any Very truly yours, ~, LLP KEEFER WOOD ALLEN & CL.;a- Charles W. Rubenda~l I I I I I , By II RECEIVED APR 0 3 2fIB , 0 C) 0 c W ....n ;!::"'" :.:-- ~-:,",>.. -0 0, "'" rn [-: :::::;1 Z :"L Z C cr.> (j) " -< ~: 1,_. ~~ ',I ~ _:;:0- (.~. -i.J- , L:. C' ~ C N ':~ 2:: :0 ~ ro :.< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA 1. HALDEMAN, Plaintiff, No. 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED PETITION FOR (I) SPECIAL ORDER UNDER PRCP 4009. (2) ORDER FOR IMMEDIATE INJUNCTION UNDER PRCP 4009.31. AND (3) SANCTIONS d AND NOW, TO WIT, THIS L day of September, 2003, comes the Petitioner, Tana 1. Haldeman, by and through her attorneys, Blakey, Yost, Bupp & Rausch, LLP, and does file this Petition pursuant to Pa. RC.P. 4009, 4009.31 and 4019, of which the following is a statement: I. Petitioner, Tana 1. Haldeman, is the Plaintiff in the above action. 2. Respondent, Harrisburg Auto Auction, is the Defendant in the above action, 3 Petitioner filed her Amended Complaint in this matter on May 7, 2002, alleging discrimination on the part of the Respondent. 4. In order to present her case Petitioner will require certain sales and/or other records that are in the sole possession of Respondent. 5. Petitioner was informed by a reliable third party that, on and after August 25, 2003, Respondent is in the process of disposing of and/or destroying company records. 3 6. Respondent, through counsel, has admitted that sales records for the years 1999 and prior are being destroyed. 7. Contrary to the information received by Plaintiff, Respondent has stated that nothing in the records being destroyed is relevant to the case or subject to the discovery previously propounded to it by Plaintiff. 8. If Respondent continues to dispose of and/or destroy its sales records, the Petitioner may lose evidence that is pertinent to this case, 9, If a Special Order is not granted immediately enjoining Respondent from disposing of and/or destroying its sales records, irreparable injury will be sustained by the Petitioner before notice can be given or a hearing held. 10. No injury will result to Respondent if the injunction is granted. II, Further, no injury will result to Respondent if Plaintiff is permitted to look through the remaining records and maintain same in safekeeping (with Plaintiffs counsel) through the end ofthis case, WHEREFORE, Petitioner respectfully requests that this Honorable Court enter an Order (I) enjoining Respondent, its agents, contractors, subcontractors and employees from further disposing of and/or destroying any records of Respondent, (2) turning over to Plaintiff a list of documents disposed of and/or destroyed since the inception of this case, (3) allowing Plaintiffs counsel to retrieve, inspect and hold for safekeeping (through the conclusion of this case) all sales records from 1999 and older, (4) within five (5) days after notice of the amount, 4 reimbursing Plaintiff for the attorneys' fees and costs incurred by her relative to the preparation and filing of this Motion and any hearing thereon, and (5) for such other relief as maybe just and proper. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP By: u- ./ Sara A. Austin, Esquire Supreme Ct. I.D. #59052 17 East Market Street York,PA 17401 Telephone (717) 845-3674 Fax No. (717) 854-7839 5 CERTIFICATE OF SERVICE I hereby certify that I have this date served a copy of the foregoing Petition on the person and in the manner indicated below: Date: Service by first class mail on: ;4~~ Charles W. Rubendall, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, P A 17108-1963 BLAKEY, YOST, BUPP & RAUSCH, LLP ~-';:'M. 2?:P.i~ 17 East Market Street York, PA 17401 Telephone (717) 845-3674 By: 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TANA L. HALDEMAN, Plaintiff, No, 2002-03774 vs. HARRISBURG AUTO AUCTION, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this ~"" day of September 2003, upon consideration of Plaintiffs Petition for Special Relief under Rule 4009 and an Immediate Order under Rule 4009.31 enjoining the disposal and/or destruction of records, and for Sanctions, it is hereby ORDERED that the Petition is granted. Defendant, its agents, contractors, subcontractors and employees are enjoined from disposing of and/or destroying any of Defendant's records until ..II - ~ . ~ (J J ~.~ ~ . .~ ~,,., re........-, - further Order of Court, ~ A '- S' ,~J,"" " I ;06} d" IO:~~- A:>~. ...:. 4t.~....,.. .,J ~ ~ ~ ~ FURTIIRR OMJii~:D tt..nt nsfoaaant sRall ~:n lLoSl Lv Pl~ul~ff ~ liat sf 880'lHlRnts ~-Q~::J ~~~ ~~, P.... "0/3 .1 n J d' ""' ~l1",~pl.~ui\ uf (hIs ~asc. 1L l'S--- ~UR'f11]!k VKUbl<..bU that PlaIntIff's counsel IS autnonzeu lU 11l1l11""d~ul...l) JeMie. 8, j.nc<p"".....t <:J......r1 A.Q1A .f")"I" C',:,..f'""lr~~~"""B e.l.....nng'h tnp ('('m('ln~l{'\n nfthllO: (,~c;;:p.~ ~11 c;;:~lp.lO: rp('(wnC! frruYl 1009 '"-anti DId""'.... n is HlJK'fII~lt OKf)~]tEl} dIaL Elv.h..ud,,"-d &h~ll, nitlHll t.h"s (5) ~a:,'f] ailer RQtia9 sf the amonnt 1";:>o;melif86 Plaintiff fuJ. LIlli:; C1llorneys? fees and costs incurred by her reladve to-the pH."pcui::tliUll C111d .fil~J.J.o uf Ul~1) Iv.lulIUIl ana any heanng tnereull. " J. ~ RXs oq-O<b -cB 2 o '" \ -"" 4_ -, (j) -< [:~ ~C j;~~ =(\ ;:- VIi'JVAlASNN3d ,UNnU:J ::-:'r'J;::8:~nJ 8'1:1 Pd i'i-dJ3 :::10 TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERL~ COUNTY, PENNSYLVANIA plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 DEFENDANT'S ANSWER TO PLAINTIFF" S PETITION FOR SPECIAL ORDER. INJUNCTION, AND SANCTIONS NOW COMES defendant, Harrisburg Auto Auction, by its attorneys, Keefer Wood Allen & Rahal, LLP, to answer plaintiff's recently filed petition as described above, averring as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Defendant denies that plaintiff will require sales records to present her case. There may be records that will be helpful, but they are not described in this petition. Moreover, all documents sought from defendant in plaintiff's discovery, to the extent that they existed when requested, have been extracted from the pertinent files and produced to plaintiff. 5. Denied. First, the reliable third party is not identified, and defendant will not accept such information source as a valid one without further identification. This is a particularly egregious violation of the pleading rules because neither plaintiff nor her counsel has verified the petition. Second, plaintiff is misinformed. Defendant has in recent weeks pursued only its normal, annual disposal of outdated sales records. 6 . Admi tted . 7. Admitted with clarification. Defendant challenges plaintiff's information to the contrary, and states again that all records sought from it as part of plaintiff's discovery in this case have been extracted from the pertinent files and produced to plaintiff, to the extent that those records existed when plaintiff requested them. 8. Denied. All pertinent records have been produced; therefore, the destruction of outdated sales records will have no impact on this case whatsoever. 9. Denied. There is no risk of irreparable injury to plaintiff. Among other things, there are computer records that reveal sales transactions going back as far as 1994. Defendant does not delete such computer records. 10. Denied. This relief sought by this petition represents an interference with defendant's ongoing business operations. Indeed, its records storage facility is overflowing and must be - 2 - periodically purged of old records to avoid spilling over into areas devoted to other aspects of its business. 11. Denied. Defendant objects to having its confidential business records maintained by plaintiff or plaintiff's counsel, as there are competitors who might gain an advantage if information from those records were revealed to them by plaintiff. WHEREFORE, defendant respectfully requests this Honorable Court to deny plaintiff's petition and to enter an order granting defendant its counsel fees and costs incurred in responding to this petition. Respectfully submitted, KEEFER vlOOD ALLEN & RAHAL, LLP Dated: September 4, 2003 By Cl~~~ Charles W. Rubendall II I.D. # 23172 Stephen L. Grose I.D. # 31006 Dona:d M. Lewis III I.D. # 58510 210 Walnut Street P. 0, Box 1196 3 Harrisburg, PA 17108-1963 717-255-8010, 255-8052 and 25~;-8038 Attorneys for defendant - 3 - VERIFICATION The undersigned, Charles W. Rubendall II, hereby verifies and states that: 1. He is one of the attorneys for Harrisburg Auto Auction, defendant herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing answer to petition are known to him and not exclusively to his client; 4. The facts set forth in the foregoing answer to petition are true and correct to the best of his knowledge, information, and belief; and 5. He is aware that false statements: herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. Cu;f--);r Charles W. Rubendall II Dated: September 4, 2003 CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Sara A. Austin, Esquire Blakey Yost Bupp & Rausch, LLP 17 East Market Street York, PA 17401 KEEFER I~OOD ALLEN & RAHAL, LLP BY~~-'~ Charles W. Rubendall II Dated: September 4, 2003 (") (.) OJ C -',; '...~ "'T} c." " q !l1 : ,) ;,: :1 /': , 0) Cc -', r..::: :r."", ~ ::;;: ('-< ~.;. (': C) , -~-:I :::1 :." :8 -, C> -< TANA 1. HALDEMAN V. HARRISBURG AUTO AUCTION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002-3774 CIVIL : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 15TH day of SEPTEMBER, 2003, at the request of Defendant, and with concurrence of the Plaintiff, the hearing scheduled for September 11,2003, at 10:30 a.m. is rescheduled for WEDNESDAY. OCTOBER 15. 2003. at 1:30 p.m. in Courtroom # 5. "sara A. Austin, Esquire 17 East Market Street York, Pa. 17401 ...charles W, Rubendall II 210 Walnut Street P.O, Box 11963 Harrisburg, Pa. 17108 :sld .. L1\~-t,L R)\~ OQ-1S-(J.3 Edward E. Guido, 1. '> ^ i' r 1,_j "1 I, VIN\i/\lAS!\!N:Jd AJNr!r)'-! '''';)','' '::'~'!~}(lJ , I [' "d '1 :" to! ""'1" , , I\d? l':"(:";'I~,. 3~j/j.-:{)-(i"j 'i S I d33 ... . . ,.' 8EP1~ TANA L. HALDEMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERI~D COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 STIPULATED ORDER - RE - RECORD RETENTION IT IS HEREBY STIPULATED, by and between Plaintiff and Defendant, as follows: 1. Plaintiff has filed a Petition seeking various for.ms of relief based upon her belief that Defendant; has already or may in the future destroy records pertinent to thi.s litigation. 2. Defendant has contested this assertion in its Answer to said Petition, noting that all documents sought from it in discovery by Plaintiff have been retrieved from the pertinent files and produced to Plaintiff's counsel. 3. Plaintiff nevertheless wishes to present evidence to the Court in support of her Petition, and has asked the Court to schedule a hearing. 4. Defendant avers that it ceased all destruction of company records, which it had been pursuing allegedly as part of its normal, annual destruction of outdated sales records, as soon as Plaintiff's Petition reached the hands of Defendant's counsel. 5. Defendant will not destroy records of any type until such time as the Court has heard evidence jln this matter and issues an Order in connection with PlaintU:f's Petition. IT IS SO AGREED BLAKEY YOST BUPP & RAUSCH, LLP HARRISBURG AUTO AUCTION By 0, By ~~ Sara A. Austin 17 East Market Street York, PA 17401 717-845-3674 Lynn Weaver, General Manager Dated, September 11-, 2003 Attorneys for Plaintiff Dated: sePtember~, 2003 KEEFER WOOD ALLEN & RAHAL, LLP By (~-,~ Charles W. Rubendall II 210 Wa,lnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010 Attorneys for Defendant Dated: September~, 2003 - 2 - . ~~ fY1 Rll-S Oq .17.(B Edward E. Guido. J. ti- Dated: September '2-, :!003 - 3 - I, ~';/Vi.j,,- '~-J../ili).< ~/ 11.,' "~I I, < I'; .', -' ,~...u II', '...... ~ '\ ",",.<I,:'.--:d '~::t~'I,", il,/,V ~ '''''':'7 " , :(:/ ".{!I/I. -." .. ! , \.:.'.::;0' " j,,\i, \ ,:" ;"',0'1 t ~ I . .~ HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RUBENDALL II ROBERT L. WELDON EUGENE E. PEPINSKY, JR. JOHN H. ENOS m GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE JEFFREY S.STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SH EAR ER WAYNE M. PECHT ELYSE E. ROGERS CRAIG A. LONGYEAR DONALD M. LEWIS III BRIDGET M. WHITLEY JOHN A. FEICHTEL ANN McGEE CARBON ELIZABETH J. GOLDSTEIN BARBARA A. GALL STEPHANIE KLEINFELTER KEEFER WOOD ALLEN & RAI-lAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963, ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C. HARRY WEST SHORE OFFICE: 415 F ALLOWFIELD ROAD CAMP HILL, PA 17011 17171 612-5800 PHONE (7171 255-8000 EIN No. 23-0716135 www.keeferwood.com WRITER'S CONTACT INFORMATION: Voice: 255-8010 Fax, 255-8003 crubendal1@keeferwood.com September 11, 2003 VIA FEDERAL EXPRESS Hon. Edward E. Guido Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: Haldeman v. Harrisburg Auto Auction No. 2002-03774 Dear Judge Guido: Enclosed is a stipulated order re record retention that defendant and counsel for both parties have signed. If this item is satisfactory to the Court, may we ask that it be entered as an order? Thank you for your careful attention to this case. Respectfully yours, :EFER~:;:' &~ '" Charles W. Rubendall II CWRU/ sg Enclosure cc: Sara A. Austin, Esquire (w/encl.) TANA L. HALDEMAN V. HARRISBURG AUTO AUCTION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, JPENNSYL VANIA : NO. 2002-3774 CIVIL : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 30lli day of SEPTEMBER, 2003, the hearing scheduled for WEDNESDAY. OCTOBER 15. 2003, at I :30 p.m. is now delayed until 2:30 p.m. on the same day. j)(ara A. Austin, Esquire 17 East Market Street York,Pa. 17401 ~;ies W. Rubenda\11I 210 Walnut Street P.O. Box 11963 Harrisburg, Pa. 17108 :sld By the ("I'"'''' Edward E. Guido, J. > c;f1 R~5 J{)' 0 ~,'cn 171NIII\lASNN3d I "1" -"' ,- ',-' '~'''''!n'' AJ.l\ii:']) ";'.,;1 1':':;;j!V 1'-' St.' :01 j'J1j Z - 1:.10 SO "I :1..... v. IN THE COURT OF COMMON PLEAS OF CUMSERLAND COUNTY, PENNSYLVANIA NO. 2002-3774 CIVIL TERM TANA L. HALDEMAN, Plaintiff HARRISBURG AUTO AUCTION, Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 15th day of October, 2003, by agreement of the parties, the Stipulated Order regarding record retention shall remain in full force and effect as modified by the stipulation agreed to by the parties in court today. A copy of that agreement is attached hereto. The Stipulated Protective Order regarding confidential information and documents entered by Judge Oler on March 21, 2003, shall remain in full force and effect until further Order of this Court. Edward E. Guido, J. ~ara A. Austin, Esquire Attorney for Plaintiff ~harles W. Rubendall, II, Esquire Attorney for Defendant srs t;~ >~ )O-1Lo-CB --.. '>:/iN\;Sig3~!N3d ,-,,' '--:",In''"\ '::;,'-j'I'l( IV ZG :\ Ii J ..U 9 \ l.JU SO )-\3. :10 3~J'd:::C:~-:- ',:',_.1;-1 1 MR. RUBENDALL: Your Honor, based on your 2 rather valuable suggestion as to how we :night resolve matters, 3 I think that's come to pass. So with Ms. Austin's 4 concurrence, I'll recite what I believe to be the 5 arrangements. 6 THE COURT: Okay. 7 MR. RUBENDALL: The Harrisburg Auto Auction 8 will move, to a storage facility of its choosing, a 9 significant portion of the records that would have otherwise 10 been destroyed but for the ex parte injunction previously 11 entered so as to create some available space in its basement 12 storage area at the auction facility. That storage facility 13 will be rented for as long as counsel for Plaintiff wishes 14 those records to be maintained in that location. The cost of 15 the storage facility will be billed to and presumably paid by 16 Ms. Austin or her client. 17 The keys to the storage facility will be 18 delivered to me, and I will retain them in my law office with 19 an agreement between myself and Ms. Austin that there will be 20 no access to those records once they have been moved, and the 21 doors locked, except upon prior consultation and agreement 22 between Ms. Austin and myself and, if necessary, of course, 23 referral of any disputed issue to the Court. 24 THE COURT: Do we have a size or an amount 25 that the rental facility is going to be limited to? 1 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 MR. RUBENDALL: Well, not being familiar with what exactly is available, I had in mind something in the nature of maybe an 8-by-lO-foot surface area storage facility that would allow us to take several dozens of boxes over there and create a significant space. MS. AUSTIN: Your Honor, we are agreeable to that size. THE COURT: MS. AUSTIN: 8 by 10 is not very big. They're usually about 6 or 8 foot high. MR. RUBENDALL: So as not to expose Ms. Haldeman to an unknown or unlimited cost, I think we would be willing to agree that the monthly storage charge for the size selected would not be greater than $150.00 per month. THE COURT: Is that agreeable? MS. AUSTIN: That's fine, Your Honor. The only change I would make to what Attorney Rubendall recited earlier is that the storage location is ~o be of Harrisburg Auto Auction's choice, but it needs to be acceptable to the Plaintiff. MR. RUBENDALL: We have no problem. We'll pick something out and propose it. Then assuming that it's not a problem, we'll go forward with the actual moving and locking up of the records. THE COURT: So what he has articulated is an 2 1 acceptable solution for the temporary injunction? 2 MS. AUSTIN: That is correct, Your Honor, 3 with the further addition that even after those records are 4 moved, no further records remaining on Harrisburg Auto 5 Auction's premises will be destroyed unless permitted by 6 further Order. 7 THE COURT: Actually, what I'm going to do is 8 now just enter an Order continuing the temporary injunction in 9 place, modified by the stipulation entered on the record, and 10 also providing that the confidential information Order will 11 remain in full force and effect until further Order of Court. 12 MS. AUSTIN: Thank you, Your Honor. 13 * * * 14 15 16 17 18 19 20 21 22 23 24 25 3 . TANA L. HALDEMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I iT. NO. 2002-3774 CIVIL TERM HARRISBURG AVTO AUCTION, Defen(iant CIVIL ACTION - LAW TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberl nd County Courthouse, Carlisle, Pennsylvania On Wednesday, October 15, 2003, in Courtroom No. 5 APPEARANCES: SARA A. AUSTIN, Esquire Attorney for Plaintiff CHARLES W. BENDALL, II, Esquire Attorney fo Defendant 1 FOR THE PLAIfTIFF Tana Lee Ha1~eman Audrey E. Swom1ey INDEX TO WITNESSES DIRECT CROSS 5 7 11 14 INDEX TO EXHIBITS DEFENDANT'S XHIBIT NO. 1 - Memorand m 2 REDIRECT RECROSS IDENTIFIED 16 , 1 THE COURT: Good afternoon. As I understand 2 this, we're fere on the preliminary injunction, is that 3 correct? 4 MS. AUSTIN: Yes, Your Honor, we could say 5 that. I mean, there's technically, I guess, one in place 6 based on you order that no action would be taken until this 7 hearing. 8 THE COURT: Correct. ~hat was an ex parte 9 order, and t en it came back. I scheduled a brief hearing on 10 that, and th t's all I have time for today. This isn't the 11 full hearing on all of the merits, just on whether or not the 12 records shou d be retained, is that correct? 13 MS. AUSTIN: Correct. 14 MR. RUBENDALL: Yes, Your Honor, that's 15 correct. 16 THE COURT: Let's hear what you have to say. 17 MS. AUSTIN: Thank you" Your Honor. Your 18 Honor sounds fairly familiar with the background, so I assume 19 you don't ne d any kind of introduction or anything. Is that 20 correct? 21 THE COURT: Whatever suits you. I'm fairly 22 familiar wit it. Tell me what it is you want to prove and 23 what you want me to do. 24 MS. AUSTIN: Well, we are here today solely 25 on the issue of document destruction and whether or not the 3 1 Defendant, Harrisburg Auto Auction, is d.estroying documents 2 that should rot be destroyed, at least until any matters in 3 this case are final. 4 5 THE COURT: Okay. MS. AUSTIN: In that, I will call as my first 6 witness Tana Haldeman. 7 having , I I AUSTIf: t , i ? ~ 8 9 10 BY MS. 11 12 13 14 TANA LEE HALDEMAN been duly sworn, testified as follows: DIRECT EXAMINATION Please state your full name for the Court. Tana Lee Haldeman. You are the Plaintiff in this case? Yes. 15 When did you first become employed by the 16 Defendant, H rrisburg Auto Auction? 17 October 1982. 18 What was your position,' 19 The first two years I worked there, I worked 20 down on the iens as the lien clerk. After that, I was hired 21 as the offic manager. 22 23 24 25 How long were you employed by the Defendant? Eighteen and a half years. What was your final position? Office manager. 4 1 2 position? 3 Q What did your job duties entail in that f\ Well, basically, in charge of the office, the 4 girls in the! office. We had our sales on Thursday, you know, 5 so eVerythinf that was involved in that, with the buying and 6 the selling the cars. Ordering office supplies. Dealing 7 as far as returned checke:. Dealing with 8 arbitration roblems. Just things that were all involved with 9 the auction. 10 What, if any, duties did you have relative to 11 the Defendan 's administrative policies and procedures? 12 I really didn't have anything to do 13 with their - I mean, as far as -- I don't quite understand. 14 That's okay. 15 I mean, I didn't make any policies or 16 procedures. 17 During the time you weJ:e office manager, did 18 you become a of any document retent:.on or destruction 19 policy that he Defendant might have had? 20 A No. 21 Q Could one have existed without you knowing 22 about it in that capacity? 23 24 25 A No. Q Why not? A Well, with being office manager, I would know 5 1 when documents are being removed and destroyed. I would be the one who rOU1d either do it or send someone to see that it was -- the jpb was done. 2 3 4 ~ While you were employecl by Harrisburg Auto 5 Auction, are! you aware of any times that it did destroy any 6 records? 7 Yes. 10 8 Do you recall when? 9 I don't know what years, but in the 18 and a half years t I was there, I would say maybe two times, when 11 the basement started to overflow and, you know, they decided 12 to get rid 0 some records. 13 How did you become aware of that document 14 destruction? 15 Well, they would come in with tow dollies, 16 you know, 17 the files 18 remove them. 19 tell us that this is the year, you know, and get ether, and they would send someone down and Q How did this process work for the document 20 destruction, to the best of your knowledge? 21 A I really don't know if they took the 22 documents t the dumpsters or if they burned them. I just 25 23 know they w nt down and they would take them out through 24 another office. From there, I really don't know what they did with them, know they were destroyed. Like I said, they 6 1 were burned<jJr a dumpster. That I don't know. 2 Do you know what records were destroyed? 3 No, I don't -- well, it would have been all 4 of the sales records, like our sales records. 5 p Do you know for what years? 6 That I don't know, what the last year was 9 the year in hich the destruction was being done? Well, I left in 2000, and there weren't any 7 that was des 8 Do you have any idea if it would have been 10 11 records dest say, from at least '92 on. It might 12 longer than that. 13 MS. AUSTIN: Nothing further. 14 THE COURT: Mr. Rubendall? 15 MR. RUBENDALL: Yes, Your Honor. Thank you. 16 CROSS-EXAMINATION 17 BY MR. RUBEN 19 Auction's have you kept in touch with since your 18 Ms. Haldeman, whom among Harrisburg Auto 20 departure in 2000? 21 MS. AUSTIN: Your Hono:r, I think that's 22 beyond the s ope of direct. 23 MR. RUBENDALL: This is a party, Your Honor. 24 THE COURT: Overruled. 25 THE WITNESS: Whom have I kept in touch with 7 1 besides-- RUBENfALL: P Yes. 2 BY MR. 3 Have you kept in touch with anyone at 4 Harrisburg Arto Auction since you left? 5 ~ Yes. 6 7 8 occasionally. Who are they? Audrey Swomley. I talk to Valerie, 9 Her last name, please. 10 11 Lou Ann Bear . 12 13 proceeding? 14 I think it's Riebling or Reibling. I talk to THE COURT: What's the relevance to today's MR. RUBENDALL: Well, we'll see, because the 15 petition all ges that this - 16 THE COURT: I don't want to hear we'll see. 17 I want you t tell me. 18 19 20 21 point, have 22 23 since 2000. 24 witness who 25 MR. RUBENDALL: The relevance? THE COURT: Yes. MR. RUBENDALL: We're (joing to, at some testimony elicited, I think, of somebody who something, because this woman has been gone want to see the relationship between the be called and this witness. THE COURT: Let's move on to something else. 8 1 MR. RUBENDALL: Can I ,ret an answer to this 4 keeping in Sie gave me two names. I THE COURT: I really don't care who she's I , I tpuch with. The issue before me is whether or not I 2 question? 3 5 records are ~eing destroyed. 6 MR. RUBENDALL: Well, t:here' s no dispute 7 about that, our Honor. There's no dispute about records 8 being destro ed. What records is there a problem relevant to 9 this case. 10 THE COURT: Right. What I have to decide in 11 this case is whether records can be destroyed in the future. 12 That's the n rrow issue before me today. So we can focus on 13 what records are being destroyed and how they are relevant to 14 this case. sn't that issue before me? 15 MR. RUBENDALL: Yes. I was hoping to 16 cross-examin as to bias, Your Honor. allow them t be destroyed. THE COURT: I don't care about bias. My 17 18 order is to be generic enough. If there are records 19 that are to this case, then they're not going to be 20 destroyed. If there are other records that aren't relevant to 21 this case an there's a reason to destroy them, then I'll 22 Is there a reason we can't focus 23 on that? I to sit here so the parties can conduct 24 a discovery. That can be done outside of my presence. 25 MR. RUBENDALL: We'll move on, Your Honor. 9 1 BY MR. RUBENDALL: 2 p Ms. Haldeman, were you involved in selecting 3 the sales repords to be destroyed when t~hat was done in the 4 past? 5 f' No. 6 Were you involved in the actual destruction 7 of those rec rds? 8 As far as going down to the basement and 9 making sure he correct records were being taken out. I 10 didn't physi ally take them out, but I vias in the basement to 11 make sure th y were if Stanley Hoynitski, the owner of the 12 d come in and say -- or Harry Kochenderfer, the 13 comptroller, say, okay, let's go down and see what's 14 down here, w have an overflow, we need to make more room for 15 the new through" you know, on back 16 out, we make sure that's what was being taken out. 17 So you would help actually make sure that the 18 right recor s were destroyed and the ones that weren't due for 19 destruction would remain, is that true? 20 A In a sense, yes. I mean, you don't want 21 taken out w at wasn't supposed to be. 22 Q The operative event that would lead to this 23 is when the basement would begin to overflow, am I correct? 24 A Correct. 25 MR. RUBENDALL: That's all the questions I 10 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 have, Your Honor. THE COURT: Redirect? MS. AUSTIN: I have no follow-up. THE COURT: Thank you, ma'am. MS. AUSTIN: Call Audrey Swomley. AUDREY SWOMLEY hav ng been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. AUSTI State your full name for the Court. Audrey Estelle Swomley. Ms. Swomley, when did you become employed by the Defendan , Harrisburg Auto Auction? October of 1982. What was your position then? I worked on the lanes as a lot clerk. Were you a lane clerk or lot clerk your entire time orking there? A No. I was hired in October, and I transferred into the office approximately January or February of 1983. Q Are you still employed with Harrisburg Auto Auction now. A No. Q Were you employed in the office through the 11 1 end of your tenure there? 2 f p p, 3 4 5 yesterday. Yes. When was your last day? October 14th, which would have been 6 What were your job duties while employed in 9 7 the office? 8 I would call banks and get credit references. When the turned on Mondays, I would put the numbers 10 into the uter for the sale on Thursday. I answered the 11 phone. I computer work that was relevant to anything that 12 had to be de eted or put in. Wednesdays I worked out in the 13 registration area, where I would take care of all of the 14 invoices tha were printed, getting thenl in order and getting 15 them ready f r the sale. Thursdays, it was -- it was 16 something di ferent every day. Thursdays I would work with 17 Dean Tripp - he is a Bobby Rahal rep --. getting his invoices 18 ready. with Select Service getting their 21 19 invoices Then when the sale began, I worked the cash 20 window. I helped to clean up from the sale. 22 23 Q Did your position have a title? Clerk. In that position of clerk, did you become 24 aware at any time of any document retention or destruction 25 policy that he Defendant might have had? 12 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 A No. 9 During the almost 19 years you were employed there, how often, if at all, are you awc.re of the Defendant destroying apy kind of records? A The only time that it vias brought to my August 25th of this year. Michael Taylor came a tow dolly. And ~rudy Hager, the office what are you doing with that? He said, I into the basement and remove files. She said, attention into the manager, am to go what files dating '99 say her last you removing? And he said, Lynn told me files older. Now, you mentioned Judy. I'm sorry. Did you Judy Hager, the existing office manager. Who is Lynn Weaver? Lynn Weaver is the general manager. Q Do you have any firsthand knowledge of the process this document destruction was to take? A No. Q Did you, yourself, have any part in this document destruction? A No. Q Do you know what records were actually destroyed? A No. 13 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 witness. time, after BY MR. RUBEN MS. AUSTIN: Nothing further for this THE COURT: Mr. Rubendall? MR. RUBENDALL: Yes, Your Honor. Thank you. CROSS-EXAMINATION Ms. Swomley, did you say that you left the employment 0 Harrisburg Auto Auction voluntarily this week? I did. Why did you choose this particular moment in years of employment, to leave? that's relev prior to -- MS. AUSTIN: Your Honor, I'm not sure if to the document destruction which occurred THE COURT: How is that relevant to what I today? MR. RUBENDALL: Your Honor, this is an We're entitled to go to bias on adversarial cross-examination. THE COURT: Objection sustained. BY MR. RUBE Did you learn what files from 1999 and older were to be when you overheard this conversation between Ms. Hager and Mr. Taylor? A No, I did not. 14 1 Q I think you told Ms. Austin, in response to 2 her question, that you do not know what was destroyed? 3 )1\ p No. Am I correct that at some point after you ! 5 overheard thks conversation between Ms. Hager and Mr. Taylor 4 6 that you con acted Ms. Haldeman to tell her about it? 7 Yes. 8 Why did you do that? 9 Because of correspondence that I read from 10 your office tating that any records that they had in 11 reference to the allegations of the $25,000.00 lawsuit, that 12 those record were purged. 13 14 15 16 Where did And that was in June. Where did you happen to see correspondence 17 I saw it at Ms. Haldeman's residence. 18 That correspondence wasn't directed to you, 19 was it? 20 No. 21 But you and Ms. Haldeman were discussing her 22 23 24 25 lawsuit Harrisburg Auto Auction, and you saw the that -- Yes, I did. Do you consider yourself a friend of 15 , 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 '. Ms. Haldeman? f\ Yes, I do. \:) Have you advised her with regard to this lawsuit? ~ No, I haven't. MS. AUSTIN: Your Honor, again, I think we're getting pret y far afield. THE COURT: Maybe I don't understand what is going documents do want destroy my order is. stipulated, I thought th BY MR. RUBEN What documents are being destroyed, what want destroyed, and what documents do you concerned about today. That's what You're not happy with the order that's That's all I want to address today. I was addressing today. You are aware, Ms. Swomley, that in recent days a memor ndum with regard to confidentiality of the business ope at Harrisburg Auto l'mction was distributed to all emplo identificati Yes, subsequent to that event. Can I show you what's been marked for please, as Defendant's Exhibit 1, and ask you whether that appears to be a copy of the memorandum that was distributed 0 employees at Harrisburg Imto Auction, including yourself? 16 '. 1 2 3 4 5 6 A p ~ A Urn-hum. Is that the one? Urn-hum. Q Yes? Yes. She has to take down a yes or a no rather 7 than an um-h Since your receipt of that memorandum, have 8 you respecte its directive? 9 10 Yes, I have. Prior to your receipt of that memorandum, had 11 you respecte the directive that became effective when you 12 received it? 13 MS. AUSTIN: Your HonOJ:, how could she 14 obviously re pect something before it came out? 15 THE COURT: I'm sorry. Maybe I should have 16 had opening tatements, because, frankly, I am completely lost 17 by your ques ions, Mr. Rubendall. How about if we meet in 18 chambers so I can figure out what is going on here. I don't 19 want to cut you short if there's a reason you're doing what 20 you're doin aside from discovery. If it's going to add to my 21 decision, I'll be happy to hear it. Otherwise, I would like 22 to get to t e bottom line. This does not appear to be a 23 complicated case to me. You've got ongoing litigation. 24 You have records you want to destroy, is that 25 correct? 17 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 destroyed? her? MR. RUBENDALL: Yes, Your Honor. THE COURT: You don't t:hink they should be MS. AUSTIN: Correct, Your Honor. THE COURT: You don't vlant to share them with MR. RUBENDALL: Not cOl:rect. We will share them for exa ination. We do not wish to part company with them in an u controlled way. THE COURT: Okay. It .muld seem to me, then -- why don't you turn them over to the Court. She can look at them, I'll g've them back, and you can destroy them. MR. RUBENDALL: We could do it that way. We are talking orne massive volume of boxes and boxes and boxes of sales rec rds. would make, court, is t injunction rather than THE COURT: How massive? MR. RUBENDALL: Well, ":he other point that I Honor, if we're going to sidebar here in open THE COURT: Wait, wait, wait. I can enter an she's got to post bond. It would seem to me, bond, why doesn't '30mebody just rent some storage spa e while she goes through it and then destroy it. MR. RUBENDALL: Well, the uncontrolled aspect is what I'm talking about. This is a competitive business. 18 1 These parties are not what you would call friendly. 2 I protective order , I I I I I 3 4 5 6 permanent. 7 THE COURT: I see there's a stipulated in effect. MR. RUBENDALL: Yes, pending this hearing. THE COURT: Well, I can certainly make that objection to that? MS. AUSTIN: No. And I think the parties 8 actually ent red into a confidentiality agreement or some 9 other agreem nt early on, before we were provided initial 10 discovery re we would not reveal competitive 11 information hat we received. 12 MR. RUBENDALL: Which vwuld include those 13 matters that relate to this case as opposed to a wholesale 14 delivery of otally unrelated sales records. 15 THE COURT: Well, again, I don't want to pick 16 nits at you, but you just told me you didn't mind her looking 17 through the tuff. 18 MR. RUBENDALL: In an expedited way, 19 following wh'ch everything that is not selected as somehow 20 relevant to his case could then be destroyed. My point is, I 21 don't-- 22 THE COURT: Let's take a break. Let me try 23 to make sure I understand what's going on. Let's meet in 24 chambers. 25 (A recess was taken.) 19 1 MR. RUBENDALL: Your Honor, based on your 3 rather valua~le suggestion as to how we might resolve matters, I think thatfs come to pass. So with Ms. Austin's I i concurrence,! I'll recite what I believe to be the 2 4 5 arrangements~ 6 THE COURT: Okay. 7 MR. RUBENDALL: The Harrisburg Auto Auction 8 will move, t a storage facility of its choosing, a storage to create some available space in its basement 9 significant ortion of the records that would have otherwise 10 been destroy d but for the ex parte injunction previously 11 entered 12 at the auction facility. That storage facility 13 will be d for as long as counsel for Plaintiff wishes 14 those record to be maintained in that location. The cost of 15 the storage acility will be billed to and presumably paid by 16 Ms. Austin 0 her client. 17 The keys to the storage facility will be 18 delivered to me, and I will retain them in my law office with 19 an agreement between myself and Ms. Ausi:in that there will be 20 no access to those records once they have been moved, and the 21 doors locke , except upon prior consultation and agreement 22 between Ms. ustin and myself and, if necessary, of course, 23 referral of any disputed issue to the Court. 24 THE COURT: Do we have a size or an amount 25 that the re tal facility is going to be limited to? 20 1 MR. RUBENDALL: Well, not being familiar with 3 what exactly is available, I had in mind something in the nature of ma~be an 8-by-10-foot surface area storage facility that would a~low us to take several dozens of boxes over there 2 4 5 and create ai significant space. , 6 MS. AUSTIN: Your Honol:, we are agreeable to 7 that size. 8 THE COURT: 8 by 10 is not very big. 9 MS. AUSTIN: They're usually about 6 or 8 10 foot high. 11 MR. RUBENDALL: So as not to expose Ms. 12 Haldeman to n unknown or unlimited cost, I think we would be 13 willing to a ree that the monthly storage charge for the size 14 selected wou d not be greater than $150.00 per month. 15 THE COURT: Is that ag:::eeable? 16 MS. AUSTIN: That's fine, Your Honor. The 17 only change I would make to what Attorney Rubendall recited 18 earlier is t at the storage location is to be of Harrisburg 19 Auto Auction's choice, but it needs to be acceptable to the 20 Plaintiff. 21 MR. RUBENDALL: We have no problem. We'll 22 pick something out and propose it. Then assuming that it's 23 not a probl ,we'll go forward with the actual moving and 24 locking up f the records. 25 THE COURT: So what he has articulated is an 21 1 acceptable solution for the temporary injunction? 3 I I with the furfher addition that even after those records are moved, no fu~ther records remaining on Harrisburg Auto MS. AUSTIN: That is correct, Your Honor, 2 4 5 i , Auction's pr~mises will be destroyed unless permitted by 6 further Orde . 7 THE COURT: Actually, vlhat I'm going to do is 8 now just ent r an order continuing the t~emporary injunction in 9 place, modif'ed by the stipulation entered on the record, and 10 also providi g that the confidential information order will 11 remain in fu 1 force and effect until further order of court. 12 MS. AUSTIN: Thank you" Your Honor. 13 THE COURT: Let me enter the following Order 14 and tell me 'f there are additions or corrections: 15 (The following Order was entered by the 16 Court:) 17 "AND NOW, this 15th day of October, 2003, by 18 agreement 0 the parties, the Stipulated Order regarding 19 record rete shall remain in full force and effect as 20 modified by the stipulation agreed to by the parties in court 21 today. A c y of that agreement is attached hereto. 22 "The Stipulated Protective Order regarding 23 confidentia information and documents entered by Judge Oler 24 on March 21, 2003, shall remain in full force and effect until 25 further Ord r of this Court." 22 1 THE COURT: I believe that covers everything, 2 Counsel. Is1the underlying action at this term and number? 3 MR. RUBENDALL: Yes. 4 MS. AUSTIN: Yes, Your Honor. 5 THE COURT: Good enough. So that's all 6 proceeding w th discovery and everything, and this was just a 7 motion for s ecial relief. Good. Good job, Counsel. Thank 8 you. 9 MR. RUBENDALL: Thank you for your time, Your 10 Honor. 11 MS. AUSTIN: Thank you, Your Honor. 12 (Court was adjourned.) 13 14 15 16 17 18 19 20 21 22 23 24 25 23 CERTIFICATION , , ~ hereby certify that the proceedings are contained fuhy and accurately in the notes taken by me on the i i above cause nd that this is a correct transcript of same. /~4(17)l& ~AJ/t. Susan Rice S~oner Official Stenographer - - - - - - - - - - - - - - - -- - - - - - - - The foregoing record of the proceedings on the hearing of he within matter is hereby approved and directed to be filed. I 0 ~J. > Date Edward E. Guido, J. 24 . .1>'I'~'''''t O"'\~ '\'"1' ,''1':', '" " , ,.--, f', . ~I , . ,,-,; ~ ,.', ) 1 ,..r<-~-':-'. Inn-Jt, ,_J.!, ' I.. _: "\:,~, \; ,..,J 6 S :0\ Id~J t] ~ /.-J;~ CD AB'/lC:'<C' :~~()~. ~ -,' 1: :.tSO'- 3Ji:EO,'C]'j'\:J .. " . TANA L. HALDEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW HARRISBURG AUTO AUCTION, Defendant No. 2002-03774 STIPULATED ORDER REGARDING DOCUMENT RETENTION AND DESTRUCTION WHEREAS, on or about September 3, 2003, plaintiff Tana L. Haldeman (hereinafter "plaintiff") filed a petition seeking various forms of relief based upon her belief that defendant Harrisburg Auto Auction (hereinafter "defendant") had or was in the process of destroying records pertinent to this litigation. WHEREAS, on or about September 5, 2003, defendant filed an answer to plaintiff's petition. WHEREAS, on September 8, 2003, the Honorable Edward E. Guido issued an order, enjoining defendant from disposing of and/or destroying any of defendant's records until further order of the Court and pending a hearing on plaintiff's petition, which was scheduled for September 11, 2003. WHEREAS, with a letter, dated September 9, 2003, directed to Judge Guido, defendant's counsel, on behalf of both parties, requested that the hearing be postponed, and further advised that defendant would suspend any document destruction until the hearing took place and an appropriate order was issued. WHEREAS, the parties thereafter entered into a stipulation that no further records would be destroyed pending the rescheduled hearing, with said stipulation being entered as an order by Judge Guido on September 17, 2003. WHEREAS, the hearing was subsequently rescheduled and took place on October 15, 2003, with Judge Guido presiding, and with said hearing being limited to the issue of whether or not the records in question should be retained, as opposed to being a full hearing on the merits. WHEREAS, as a result of the hearing, Judge Guido issued an order, dated October 15, 2003, which provided, inter alia, that the temporary injunction related to document destruction would remain in effect, with defendant, in the meantime, moving to a storage facility, which had been approved by plaintiff, a slgnificant portion of the records at issue, and with the cost of the storage facility, which was not to exceed $150.00 per month, to be billed to and paid by plaintiff or her counsel. WHEREAS, defendant thereafter, pursuant to Judge Guido's order, located an appropriate storage facility and through a letter, dated October 21, 2003, advised plaintiff's counsel of the availability and cost of the storage facility and requested - 2 - , ~ permission to move the multiple boxes containing the documents in question to the facility in compliance with Judge Guido's order. WHEREAS, correspondence ensued between counsel. WHEREAS, by letter, dated November 12, 2003, directed to defendant's counsel, plaintiff's attorney advised that plaintiff was now providing permission to defendant ".. .to destroy sales records (in the boxes, not on the computer) for any time period prior to January 1, 1999," but that the "[r]ecords on and after January 1, 1999, should be preserved." The parties therefore stipulate and agree to the following: 1. The orders issued by Judge Guido on September 8, 2003, September 17, 2003, and October 15, 2003, respectively, are hereby modified as agreed to by the parties. 2. Defendant is permitted to destroy all sales records, in paper form, for the time period prior to January 1, 1999, but shall retain its computerized records for that same time period, which go back as far as 1994. 3. Defendant shall preserve its sales records for the time period subsequent to January 1, 1999, in both paper and computerized formats, with the "hard copies" of these documents being stored at defendant's offices through the conclusion of this litigation. - 3 - 4. The documents preserved pursuant to paragraph 3 above will be made available for plaintiff's inspection at a mutually convenient date and time upon defendant's receipt of an appropriate and timely request from plaintiff. 5. Plaintiff's petition for (1) special order under Pa. R. Civ. P. 4009, (2) order for immediate injunction under Pa. R. Civ. P. 4009.31, and (3) sanctions are resolved by this stipulation. 6. Neither party shall seek reimbursement of attorneys' fees and costs incurred relative to the dispute regarding the retention and destruction of defendant's records. BLAKEY YOST BUPP & RAUSCH, LLP KEEFER WOOD ALLEN & RAHAL, LLP By ~ cwl{-, ~ By Sara A. Austin 17 East Market Street York, PA 17401 717-845-3674 Charles W. Rubendall II 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010 Attorneys for plaintiff Attorneys for defendant So ordered by the Court th' ~>J>^day of tJ~ 2003. Edward E. Guido, J" - 4 - 'i i 1 ~~ ~p {J ~ ~< "~ ~ . \1t'NA1A$NN3d AlNnOO ljt-liflY3emo II :8 WY 92 I\OIHO At1VlCN()H..LOUd 3Hl. :SO 30U:lO"(B11J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TANA L. HALDEMAN, Plaintiff; No. 2002-03774 v. HARRISBURG AUTO AUCTION, Defendant. Civil Action - Law PRAECIPE TO SETTLE AND SATISFY TO: PROTHONOTARY Kindly mark the docket in the above-captioned matter as settled and satisfied with prejudice. Dated: , /2./ O?- Respectfully submitted, AUSTIN LAW FIRM LLC ~ Sara A. Austin, Esq. 57 East Market Street York, PA 17401 717.846.2246 phone 717.846.2248 fax saustin@austinlawllc.com Counsel for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 2,2007, a true and correct copy of the foregoing Praecipe was served by U.s. First Class mail on the following: Charles W. Rubendall, II, Esquire P. O. Box 11963 Harrisburg, PA 17108-1963 By: y / Sara A. Austin, Esquire 57 E. Market St. York, Pennsylvania 17401 717.846.2246 (') C <.... -rJ (j:) ~z} (i5J g(::':, ~~ Z ~ t-o..) <::::> <::::> ..... c.:... :I> :z I co o "'jl ~:D :B~ Q- ~ I' "'"):D ~7 (') Om -''t ~ ~ -0 :x r..a o 0"\