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COPY

TO:PLAINTIFF DELAWARE COUNTY

Jason A, Levine (I.D. No. 306446)


HANGLEY ARONCHICK SEGAL PUDLIN &
SCHILLER
One Logan Square, 27th Floor
Philadelphia, PA 19103
Telephone:(215} 496-7038
jlevine@hangley.com

You are hereby notified to file a written


response to the enclosed Answer and New
Matter within twenty(20)days from service
hereof or a judgment may be entered
against you.
J
~~r~e--J on A. Levine, Esquire

Arthur L. Pressman (I.D. No. 10124)


J. William Codinha (admitted pro hac vice)
Emily C. Harlan (admitted pro hac vice)
Joshua S. Barlow (admitted pro hac vice)
NIXON PEABODY LLP
100 Summer Street
Boston, Massachusetts 02110-2131
Telephone: (617) 345-1000
apressman(a7nixonpeabody.com
jcodinha@nixonpeabody.com
eharlan@nixonpeabody.com
jbarlow(a~nixonpeabody.com

For Defendants Cavalier Telephone MidAtlantic LLC and Windstream


Communications,LLC(incorrectly named as
Windstream Communications,Inc.)
COURT OF COMMON PLEAS
DELAWARE COUNTY
,.~.,~

DELAWARE COUNTY,
Plaintiff,
v.
VERIZON PENNSYLVANIA,INC., et al.,

No. 2015-4830
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Defendants.
_.,

ANSWER AND NEW MATTER OF DEFENDANTS CAVALIER TELEPHOI


MID-ATLANTIC,LLC AND W~NDSTREAM COMMUNICATIONS,LLC TO
PLAINTIFF'S AMENDED COMPLAINT
Defendants Cavalier Telephone Mid-Atlantic, LLC ("Cavalier") and Windstream
Communications, LLC,incorrectly named as Windstream Communications, Inc.("Windstream"
and collectively with Cavalier, the "Windstream Defendants"), hereby submit the following
Answer and New Matter in response to plaintiff Delaware County's ("Plaintiffl') Amended
Complaint, stating as follows:

-r

INTRODUCTIONI
1.

The Windstream Defendants lack sufficie~it knowledge, information or belief on

which to base a zesponse to tlae allegations of Paragraph 1 and, on that basis, deny them.
2.

The Windstream Defendants state that the allegations contained in Paragraph 2

describe the content of authorities or other materials referenced therein. I~lsofar as tlae
allegations of Paragraph 2 characterize or purport to interpret those authorities or other materials,
t11ey are denied. Except as expressly admitted by tl~e foregoing, the Windstream Defendants
deny the allegations in this paragraph.
The Windstream Defendants state that the allegations contained in Paragraph 3
describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 3 characterize or purport to interpret those authorities or other materials,
they are denied. Except as expressly admitted by the foregoing, the Windstream Defendants
deny tl~e allegatiot7s in this paragraph.
4.

Denied as to the Windstream Defendants.


Denied as to the Windstream Defendants.

6.

The Windstteam Defendants state that the allegations contained in Paragraph 6

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 6 characterize or purport to interpret those authorities o~ other mate~ials,
they are denied. The Windstream Defendants lack sufficient knowledge, information or belief
on which to base a response to the remaining allegations of Paragraph 6 and, on that basis, deny
them.

Tl~e Windstrearn Defendants have incorporated herein the headings contained in Plaintiff"s Amended Complaint
for ease of reference only. To t11e extent tl~e headings contain factual allegations of conclusions of law, the
Windstream Defendants deny such allegations and conclusions.

7.

The Windstream Defendants deny that they Failed to comply with governing law.

The Wi~7dstream Defendants otherwise lack sufficient knowledge, information or belief on which
to base a response to tlae remaining allegations of Paragraph 7 and, on that basis, deny them.
8.

The Windstream Defezadaiats admit that they are providers of telecommunications

services. The Windstream Defendants otherwise lack sufficient knowledge, information or


belief on which to base a response to the remaining allegations ofParagraph 8 and, on that basis,
deny them.
9.

The Windstream Defendants deny that they failed to comply with governing law.

The Wiildstream Defendants otherwise lack sufficient knowledge, information or belief on which
to base a response to the remaining allegations of Paragraph 9 and, on that basis, deny them.
10.

Denied as to the Windstream Defendants.

11.

Denied as to the Wi~adstream Defendants.

12.

Denied as to the Windstream Defendants.

13.

The Windstream Defendants admit that Plai~~tiff brings this action as described in

Paragraph 13, btrt denies that Plaintiff is entitled to any relief from the Windstream Defendants.
THE PARTIES
14.

The Windstream Defendants lack sufficient knowledge, infot~naation or belief on

which to base a response to the allegations of Paragraph 14 and, on that basis, deny them.
15.

The allegations of Paragraph 1 S are definitional to which no response is required.

Insofar as the allegations in Paragraph 15 call for a further response from the Windstream
Defendants, the Windstream Defe~ldants deny the allegations in Paragraph 15.

a) The Windstream Defendants lack sufficient knowledge, information or belief


on which to base a response to tlae allegations of Paragraph 15(a) and, on that
basis, deny them.
b) The Windstream Defendants lack sufficient knowledge, information or belief
on which to base a response to the allegations of Paragraph 15(b) and, on that
basis, deny them.
16.

The Windstream Defendants lack sufficient knowledge, infoX~mation or belief on

which to base a response to the allegations of Paragraph 16 and, on that basis, deny them.
17,

The Windstreana Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 17 and, on that basis, deny them.
18.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 18 and, on that basis, deny them.
19.

The allegations of Paragraph 19 are definitional to which no response is required.

Insofar as the allegations in Paragraph 19 call for a further response from the Windstream
Defendants, the Windstream Defendants deny the allegations in Paragraph 19.
a) The Windstream Defendants admit that Cavalier provides telecoin~nunications
services to customers located in Delaware County and that CT Corporation
Systems has served as Cavalier's registered agent. Except as expressly
admitted by the foregoing, the Windstream Defendants deny the allegations in
this paragraph.
b) Windstream denies that "Windstream Commmlications, Inc." is tlae properly
named defendant entity. Windstream Communications, LLC was formed in
2014 and is the successor entity to Wi~ldstream Communications, Inc. Except

as expressly admitted by the foregoing, the Windstream Defendants deny the


allegations in this paragraph.
20.

The allegations of Paragraph 20 are definitional to which no response is required.

Insofar as the allegations in Parag~aph 20 call for a further response from the Windstream
Defendants, the Windstream Defezldants deny the allegations in Paragraph 20.
a) The Windstream Defendants lack sufficient knowledge, information or belief
on which to base a response to the allegations of Paragraph 20(a) and, oia that
basis, deny them.
b) T11e Windstream Defendants lack sufficient knowledge, information or belief
on which to base a response to the allegatioias of Paragraph 20(b) and, on that
basis, deny them.
21.

The Windstreanz Defendants lack sufficient knowledge, information or belief oz1

which to base a respo~~se to the allegations of Paragraph 21 and, on that basis, deny them.
22.

The Windstream Defendants lack sufficient knowledge, inforznatioia or belief on

which to base a response to the allegations of Paragraph 22 and, on that basis, deny them.
23.

The Windstream Defendants lack sufficient knowledge, information ox belief on

which to base a response to the allegations of Paragraph 23 and, on that basis, deny them.
24.

The Windstream Defendants laci< sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 24 and, on that basis, deny them.
25.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Pazagraph 25 and, on that basis, de~1y them.
26.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 26 and, on that basis, deny them.

27.

The Windstream Defendants lack sufficient knowledge, i~lformation or belief on

which to base a response to the allegations of Paragraph 27 and, o~~ that basis, deny them.
28.

The Windstream Defendants lack sufficient i<nowledge, information or belief on

which to base a response to the allegatio~ls of Paragraph 28 and, on that basis, deny them..
29.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 29 and, on that basis, deny them.
30.

The Windstream Defendants laelc sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 30 and, on that basis, deny them.
31.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 31 and, on that basis, deny them.
32.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 32 and, on that basis, deny them.
JURISDICTION
33.

The allegations of Paragraph 33 co~ltain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstream Defe~adants deny
that 35 Pa. Cons. Stat. Ann. 5307(e)(1) provides a jurisdictional basis for this action. On the
contrary, section 5307(e)(1) authorizes suit only against certain telecommunications customers,
not service providers like the Windstream Defendants. To the extent any response is required,
the Windstream Defendants deny the allegations of Paragraph 33.
34.

The allegations of Paragraph 34 contain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Wiz~dstream Defendants deny the
allegations of Paragraph 34.

35.

The allegations of Paragraph 35 contain a legal conclLision or conclusions which

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 35.
FACTUAL ALLEGATIONS
I.

PHONE SERVICE IN THE COUNTY


A. The County
36.

Denied. Respondi~ig further, the Wi~ldstream Defendants state that "billable

uiaits" is aself-defined and misleading term that lacks any basis in the text of the 911 Act, or in
any other applicable law, and improperly conflates phone lines and phone numbers.
37.

Denied. Responding further, tlae Windstream Defendants state that "billable

units" is aself-defined and misleadi~lg term that lacks a~ay basis in the text of the 911 Act, or in
azly other applicable law, and improperly co~aflates phone lines and phone numbers,.
B. Technological Evolution of Telephone Service
38.

The Wi~adstream Defendants state that the allegations contained in Paragraph 38

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 38 characterize or purport to interpret those authorities or othe~~
materials, they are denied. The Windstream Defendants lack sufficient la~owledge, information
or belief oia which to base a response to the remaining allegations of Paragraph 38 and, on that
basis, deny them.
39.

The Windstreana Defendants admit that telecommunicatio~is services have been

provided to customers through the use of copper wires. Except as expressly admitted by the
foregoing, the Windstream Defendants deny the allegations in this paragraph.
40.

Denied.

41.

Denied

42.

Denied.

43.

Denied.

44.

Admitted.

45.

Admitted.

46.

The Wii~dstream Defendants state that the allegations contained in Paragraph 46

describe the content of authorities or other mate~~ials referenced therein. Insofar as the
allegations of Paragraph 46 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.

II.

47.

Denied.

48.

Admitted.

49.

Admitted.

50.

Admitted.

51.

Denied.

THE ACT AND THE 911 ASSESSMENTS


52.

The Windstrearn Defendants state that the allegations contained its Paragraph 52

describe the content of authorities or other mate~ials referenced therein. Insofar as the
allegations of Paragraph 52 characterize of purport to interpret those authorities or other
materials, t11ey are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
53.

The Windstream Defendants state that the allegations contained in Paragraph 53

describe the content of authorities or other materials refere~aced therein. Insofar as the

allegations of Paragraph 53 characterize or purport to interpret those authorities or other


materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
54.

The Windstream Defendants state that the allegations contained in Paragraph 54

describe the conte~lt of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 54 characterize or purport to interpret those authorities or other
materials, they are denied. Responding further, the Windstream DeFendants deny that 35 Pa.
Cons. Stat. Ann. 5305(g.l) authorizes counties to collect 911 taxes on VoIP services. Except
as expressly admitted by the Ioregoing, the Windstream Defendants deny the allegations in dais
paragraph.
55.

The Windstream Defendants state that the allegations contained i~1 Paragrap1155

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 55 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
56,

The Windstream Defendants state that the allegations contained in Paragraph 56

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 56 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
57.

The Windstream Defendants state that the allegations contained in Paragraph 57

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 57 characterize or purport to interpret those authorities or other

materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny t11e allegations in this paragraph.
S8.

The Windstream Defendants state that the allegations contained in Paragraph 58

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 58 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny tihe allegations in this paragraph.
59.

The Windstream Defendants state that the allegations contained in Paragraph 59

describe the content of authorities of other materials referenced therein, Insofar as the
allegations of Paragraph 59 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstreain
Defendants deny the allegations in this paragraph.
60.

The Windstream Defe~zdants state that the allegations contained in Paragraph 60

describe the content of authorities oi other materials referenced therein. Insofar as the
allegations of Paragraph 60 characterize or purport to interpret those authorities or other
materials, they are de~~ied. Responding Further, the Windstream Defendant deny that Pa. Cons.
Stat. Ann. 5311.14 authorizes counties to impose oz collect 911 taxes on VoIP services.
Except as expressly admitted by the foregoing, the Windstream Defendants deny the allegations
in this paragtaph.
61.

The Windstream Defendants state that the allegations contained in Paragraph 61

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 61 characterize or purport to interpret those authorities or other

10

materials, they are denied. Lxcept as expressly admitted by the foregoing, the Windstieam
Defenda~lts deny the allegations in this paragraph.
62.

The Windstreain Defendants state that the allegations contained in Paragraph 62

describe tihe content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 62 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by tl~e foregoing, the Windstream
Defendaiats deny the allegations in this paragraph.
63.

The Windstream Defendants state that the allegations contained in Paragraph 63

describe the content of authorities or othe~~ matet~ials referenced therein. Insofar as the
allegations of Paragraph 63 characte~~ize or purport to interpret those authorities ox other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
64.

The Windstream Defendants deny that they failed to comply with governing law.

Responding further, the Windstream Defenda~zts state that the allegations contained in Paragraph
64 describe the conte~zt of authorities or other materials referenced therein. Insofar as t11e
allegations of Paragraph 64 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
65.

The Windstream Defendants state that the allegations contained in Paxagraph 65

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 65 characterize or purport to interpret those authorities or other
materials, they are denied. The Windstream Defendants lack sufficient knowledge, information

11

or belief on which to base a response to the remaining allegations of Paragraph 65 and, on that
basis, deny them.
66.

Tlae Windstream Defendants state that the allegations contained in Paragraph 66

describe the content of aLrthorities or other materials referenced therein. Insofar as the
allegations of Paragraph 66 characterize or purport to interpret those authorities or other
materials, they are denied. The Windstream Defendants lack sufficient knowledge, informatio~l
or belief on which to base a response to the remaining allegations of Paragraph 66 and, on that
basis, deny them.
III.

INDUSTRY TREATMENT OF 911 ASS~SSM~NTS


A. The County's Analysis of Remittances of 911 Assessments
67.

Admitted.

68.

The Windstream Defendants state that the allegations contained in Paragraph 68

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 68 characterize or purport to interpret those authorities or other
materials, they are denied. except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this pa~agraph.
69.

The Windstream Defendants state that the allegations contained in Paragraph 69

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 69 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
70.

The Windstream Defendants state that the allegations contained in Paragraph 70

describe the content of authorities or other materials referenced therein. Insofar as the

12

allegations of Paragraph 70 characterize or purport to interpret those authorities or other


materials, they are de~aied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
71.

The Windstream Defendants state that the allegations contained in Paragraph 71

describe the content of authorities or other materials referenced therein.. Insofar as the
allegations of Paragraph 71 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
72.

Denied as to the Windstream Defendants.

73.

The Windstream Defendants state that the allegations contained in Paragraph 73

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 73 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
74.

The Windstream Defendants deny that they failed to comply with governing law

and that Plaintiff undertook "best efforts" to seek information from the Windstream Defendants
related to 911 taxes pzior to instituting this lawsuit, The Windstream Defendants otherwise lack
sufficient knowledge, ixlformation or belief on which to base a response to the remaining
allegations of Paragraph 74 and, on that basis, deny them.
75.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 75 and, on that basis, deny them.

13

76.

The Windstream Defendants deny that they failed to comply with governing law.

The Windstream Defendants otherwise lack sufficient knowledge, information or belief on which
to base a response to the remaining allegations of Paragraph 76 and, on that basis, deny them.
77.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 77 and, on that basis, deny them.
Responding further, the Windstream Defendants state that "billable units" is aself-defined and
misleading term that lacks any basis in the text of the 911 Act, or in any other applicable law,
and improperly conflates phone lines and phone numbers.
78.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 78 and, on that basis, deny them.
Responding further, tlae Windstream Defendants state that "billable units" is aself-defined and
misleading term that lacks any basis in the text of the 911 Act, or in any other applicable law,
and improperly conflates phone lines and phone numbers.
79.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Parag~~aph 79 and, o~z that basis, deny them.
Responding further, the Windstream Defendants state that "billable units" is aself-defined and
misleading term. that lacks any basis in the text ofthe 911 Act, or in any other applicable law,
and improperly conflates phone lines and phone numbers.
80.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegatio~ls of Paragraph 80 and, on that basis, deny them.
Responding further, the Wi~~dstream Defendants state that "billable units" is a self-defi~ied and
misleading term that lacks any basis in the text of the 911 Act, or in any other applicable law,
and improperly co~lflates phone lines and phone numbers.

14

81.

The Windstieain Defendants lack sufficient l~lowledge, information oi~ belief on

which to base a response to the allegations of Paragraph 81 and, on that basis, deny them.
Responding further, the Windstream Defeiadants state that "billable units" is aself-defined and
misleading term that lacks any basis in the text of the 911 Act, or in any other applicable law,
and improperly conflates phone lines and phone numbers.
82.

The Windstream Defendants lack sufficient laiowledge, information or belief on

which to base a response to the allegations of Paragraph 82 and, on that basis, deny them
Responding further, the Windstream Defendants state that "billable units" is aself-defined and
n~isleadiilg term that lacks any basis in the text of the 911 Act, or in any other applicable Jaw,
and improperly cotlflates phone lines and phone numbers.
83.

Denied. Responding further, the Windstream Defendants state that "billable

ui7its" is aself-defined and misleading term that lacks any basis iiz the text ofthe 9L L Act, or in
any other applicable law, and improperly conflates phone lines and phone numbers.
84.

The Windstream Defendants de~1y that they failed to comply with governing law.

The Windstream Defendants otherwise lack sufficient knowledge, iiaformation or belief on which
to base a response to the remaining allegations of Paragraph $4 and, on that basis, deny them.
85.

The Windstream Defendants deny that they failed to comply with governing law.

The Windstream Defendants otherwise lack sufficient knowledge, information or belief on which
to base a response to the remaining allegations of Paragraph 85 and, on that basis, deny them.
86.

Denied as to the Windstream Defendants.

87.

The Windstreain Defendants deny that they failed to comply with governing law.

The Windstream Defendants otherwise lack sufficient knowledge, information or belief on which
to base a respo~~se to the remaining allegations of Paragraph 87 and, on that basis, deny them.

15

B. Defendants Undercharged 911 Assessments


88.

The Windstream Defendants admit that they took steps to ensure that they

complied with the governing law. Except as expressly admitted by the foregoing, the
Windstream Defendants deny the allegations in this paragraph.
89.

The Windstream Defendants admit that they took steps to ensure that they

complied with the governing law. The Windstream Defendants lack sufficient knowledge,
infoi-~ilation or belief on which to base a response to the remaining allegations of Paragrap1189
and, on that basis, deny them.
90.

Denied as to the Windstream Defendants.

91.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 91 and, on that basis, de~zy them.
92.

The Windstream Defendants deny that they failed to comply with governing law.

Responding further, the Windstream Defendants state that the allegations contained in Paragraph
92 describe the content of authorities or other materials referenced therein. Insofar as tlae
allegations of Paragraph 92 characterize or purport to interpret those authorities or other
materials, they are deiaied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
93.

The Windstream Defendants lack sufficient knowledge, informatio~i or belief on

which to base a response to the allegations of Paragraph 93 and, on that basis, deny them.
94.

Denied as to the Windstream Defendants.

9S.

The Windstream Defendants deny that they failed to comply with governing law.

The Windstreain Defendants otherwise lack sufficient knowledge, information or belief on which
to base a response to the remaining allegations of Paragraph 95 and, on that basis, deny them.

16

96.

The Windstrearn Defendants deny that they failed to comply with goverzaing law.

The Windstreain Defendants otherwise lack sufficient knowledge, information or belief on which
to base a response to the remaining allegations of Pa~~agraph 96 and, ova that basis, deny therri.
97.

The Windst~ea~n Defendants admit that Plaintiff can~aot state that the Windstream

Defendants failed to pay tlae correct amount of 911 taxes. The Windstream Defendants also
admit that the County did not request information from the Windst~eam Defendants related to
911 taxes prior to instituting this lawsuit. The Windstreanl Defendants lack sufficient
knowledge, information or belief on which to base a response to the remaining allegatio~zs of
Paragraph 97 a~1d, on that basis, deny them.
9$.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 98 and, on that basis, deny them.
99.

Denied as to the Windstream Defendants.

100.

The Windstream Defendants de~~y that they failed to comply with governing law.

The Wiiadstream Defendants otherwise laalc sufficient lalowledge, information or belief on which
to base a response to the remaining allegations of Paragraph 100 and, on that basis, deny them.
101.

The Windstream Defendants deny that they failed to comply with governing law.

Responding further, the Wi~ldstream Defendants state that the allegations contained in Paragraph
101 describe the content of authorities or other materials referenced therein. Insofar as the
allegations o~ Paragraph 101 characterize or purport to interpret those authorities or other
materials, they are denied. Tlae Windstream Defendants lack sufficient knowledge, information
or belief orn which to base a response to the remaining allegations of Paragraph 101 and, on that
basis, deny them.
102.

Denied as to the Windstream Defendants.

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103.

Denied as to the Windstleam Defendants.


1. Verizon

104.

The allegations in this paragraph are directed at a party or parties other than the

Windst~~eam Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
105.

The allegations in this paragraph are directed at a party or parties other than the

Wi~ldstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
106.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
delay the allegations of this paragraph.
107.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
108.

The allegations in this paragraph are directed at a party or parties othe~~ than the

Windstream Defe~7dants. To the extent any response is required, tihe Windstream Defendants
deny the allegatioXls of this paragraph.
2. XO
109.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegatio~ls of this paragraph.

18

110.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To tlae extent any response is ~equired, the Windstream Defendants
deny the allegations of this paragraph.
111.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defenda~ats. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
112.

The allegations in this paragraph are directed at a party or pa~~ties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
113.

The allegations in this paragraph are directed at a party or parties other tha~a the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
de~1y the allegations of this paragraph.
3. Leve13
114.

The allegations in this paragraph are directed at a party ar parties other than tl~e

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
115,

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any respo~lse is required, the Windstream Defendants
deny the allegations of this paragraph.
116.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defetldants
deny the allegations of this paragraph.

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117.

Tlae allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
118.

The allegations iia this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
4. Bandwidth
119.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations o~this paragraph.
120.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
121.

T11e allegations iii this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
122.

The allegations in this paragraph are directed at a party or parties other than the

Windstrearn Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
123.

The allegations in this paragraph are directed at a party or parties other than the

Windstrea~n Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.

.~

5. Windstream
124.

The Windstream Defendants state that the allegatio~ls contained in Paragraph 124

describe the content of authorities or other materials referenced therein. Insofar as tl~e
allegations of Paragraph 124 characterize or purport to i~iterpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paiagiaph.
125.

Denied.

126.

Denied.

127.

Denied.

128.

Denied.
6. AT&T

129.

The allegatio~ls in this paragraph are directed at a pa~~ty or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
130.

The allegations in this paragraph are directed at a party or parties other than the

Windstrearn Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
131.

The allegations in this paragraph are directed at a party or panties other tha~l the

Windstream Defendants. To the extent any respo~ise is required, the Windstream Defendants
deny the allegations of this paragraph.
132.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations ofthis pa~~agraph.

21

133.

The allegations in t11is paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations o~this paia~raph.
7. Comcast
134.

The allegations in this paragraph are directed at a pa~~ty or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
135.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Wi~ldstream Defendants
deny the allegations of this paragraph.
136,

Tlae allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
137.

The allegations in this paragtaph are directed at a party or parties other than the

Windstreani Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
138.

The allegations in this paragraph are directed at a party or parties other than the

Windstzeam Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
8. RCN
139.

The allegations in this paragraph ate directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny tlae allegations of this paragraph.

22

140.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
141.

The allegations in this paragraph are directed at a party o~ parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this pa~agraph.
142.

The allegations in this paragraph are diX~ected at a party oi parties other than tlae

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
143.

The allegations its this paragraph are directed at a party oz parties other than the

Windstream Defendants. To the extent any respoiase is required, the Windstream Defendants
deny the allegations of this paragraph.
9. Broadview
144.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
de~iy the allegations of this paragraph.
145,

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
146.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any respoiase is required, the Windstream Defendants
deny the allegations of this paragraph.

23

147.

The allegations in this paragraph are directed at a patty or parties other than t11e

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
148.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
10. Netcarrier
149.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defenda~lts
deny the allegations of this paragraph.
150.

The allegations in this paragraph are directed at a party or parties other tha~~ the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph,
151.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
152.

The allegations in this paragraph are directed at a pax-ty or parties other than the

Windstream Defendants. To tl~e extent any response is required, the Windstreanl Defendants
deny the allegations of this paragraph.
153.

The allegations in this paragraph are directed at a party or parties other than the

Windstrealn Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.

24

11. Peerless
154.

Tl~e allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any ~esponse is required, the Windstream Defendants
deny the allegations of this para~t~aph.
155.

The allegations in this paragraph are directed at a party or parties other tha~a the

Windstream Defenda~~ts. To the extent any response is required, the Windstraam Defendants
deny the allegatio~ls of this patagraph.
156.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, tale Windstream Defendants
deny the allegations of this paragraph.
157.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required., the Windstrean~ Defendants
deny the allegations of this paragraph.
158.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
12. YMax
159.

The allegations i~a this paragraph are directed at a party or parties other than the

Windstream Defexzdants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
160.

The allegations in this paragraph are directed at a party or patties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.

25

161.

The allegations in this paragraph ai~e directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstreain Defendants
deny the allegations of this paragraph.
162.

The allegations in this paragraph are directed at a party or parties other than the

Windstream llefendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
163.

The allegations i~1 this paragraph are directed at a party or parties other than the

Windstreatn Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
13. CenturyLinlc
164.

The allegations in this paragraph are directed at a panty or parties other than the

Windstream Defezidants.. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
165.

The allegations in this paragraph are directed at a party or parties other than t11e

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
166.

The allegations in this paragraph are directed at a party ox parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
167.

The allegations in this paragraph are directed at a party oi~ parties other than the

Windstrea~n Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.

7~

168.

The allegations in this paragraph are directed at a party or pa~ties other than the

Windstrea~n Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of t~lis paragraph.
14. Earthlink
169.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
170.

The allegations in this paragraph are directed at a party or parties other than the

Windst~~eam Defendants. To the extent any response is required, the Windstream Defendants
deny the allegatio~~s of this paragraph.
171.

The allegations in this paragraph a~~e directed at a paity or parties other than tJ1e

Windstrea~n Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations o~this paragraph.
172.

The allegations in this paragraph are directed at a party or patties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
173.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defe~~dants
deny the allegations of this paragraph.
15. Infinite
174.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extetlt any response is required, the Windstream Defendants
deny the allegations of this paragraph.

27

175.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Wii~dstream Defendants
deny the allegations of this paragraph.
176.

The allegations in this paragraph are diiected at a party of parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
177.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream DefeX~dants
deny the allegations of this paragraph.
178.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
16. Core
179.

T11e allegations in this paragraph are directed at a party or parties othe~~ than the

Windstream Defendants. To the extent any response is required, the Windstream Defe~ldants
deny the allegations of this paragraph.
180.

The allegations in this paragraph aie directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegatio~ls of this paragraph.
181.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.

182.

The allegations in this paragraph are diiected at a party or parties other than tlae

Windstreain Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
183.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defe~ldants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
17. Inteliquent
184.

The allegations in this paragraph are directed at a party or parties other Haan the

Wi~adstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
185.

The allegations in this paragraph are directed at a party oz~ parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
186.

The allegations in this paragraph are directed at a party or parties othei than the

Windsheam Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
187.

The allegations in this paragraph are directed at a panty or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
deny the allegations of this paragraph.
188.

The allegations in this paragraph are directed at a party or parties other than the

Windstream Defendants. To the extent any response is required, the Windstream Defendants
dezly the allegations of this paragraph.

29

FIRST COUNT
Breach of Fiduciary Duty
189.

The Windstream Defendants reincorporate their responses to the preceding 188

paragraphs of the Amended Complaint set forth herein.


190.

The allegations of Paragraph 190 contain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 190.
191.

The allegations of Paragraph 191. contain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 191.
192.

The allegations of Paragraph 192 contain a legal conclusion or conclusions which

require do response. To the extent any response is required, the Windstreain Defendants deny the
allegations of Pa~agraph 192.
193.

Denied as to the Windstream Defendants.

194.

Denied as to the Windstream Defendants.


SECOND COUNT
Fraud

195.

The Windstream Defendants reincorporate their responses to the preceding 194

paragraphs of the Amended Complaint set forth herein.


196.

The Windstrearn Defendants state that the allegations contained in Paragraph 196

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 196 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.

.~'~1

197.

The Windstream Defendants state that the allegations contained in Paragraph 197

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 197 characte~ize or purport to interpret those authorities or other
materials, they are denied. Except as exp~~essly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
198.

The Windstream Defendants state that the allegations contained in Paragraph 198

describe the content of authorities or other materials refe~~enced therein. Insofar as the
allegations of Paragraph 198 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
199.

The Wizadstream Defendants state that the allegations contained in Paragraph 199

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 199 characterize or purport to interpret those authorities or other
materials, they axe denied. Except as expressly admitted by the foregoing, the Windstream
Defendants de~iy the allegations in this paragraph.
200.

The allegations of Paragraph 200 contain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 200.
201.

The allegations of Paragraph 201 contain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 201.
202.

The Windstream Defendants lack sufficient knowledge, information oi belief on

which to base a response to the allegations of Paragraph 202 and, on that basis, deny them.

31

203.

The Windstream Defenda~lts lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 203 and, on that basis, deny them.
204.

Denied as to the Windst~~eam Defendants.

205.

Denied as to the Windstreain Defendants.

206.

Denied as to the Windstream Defendants,

207.

Denied as to the Windstream Defendants.

208.

Denied as to the Windstream Defendants.


THIRD COUNT
Negligent Misrepresentation

209,

The Windstream Defendants reincorporate their responses to the preceding 208

paragraphs of the Amended Cou~plaint set forth herein.


210.

The allegations of Paragraph 210 contaizi a legal conclusion or conclusioias wluch

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 210.
211.

The Windstream Defendants state that the allegations contained ii1 Paragraph 211

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 211 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
212.

The Windstream Defendants state that the allegations contained in Paragraph 212

describe the content of authorities or other materials referenced therein. Insofar as the
allegations of Paragraph 212 characterize or purport to interpret those authorities or other
materials, they are denied. Except as expressly admitted by the foregoing, the Windstream
Defendants deny the allegations in this paragraph.
32

213.

Denied as to tl~e Windstream Defendants.

214.

The allegations of Parag~aph 214 contain a legal conclusion or conchisioils which

require Sao response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 214.
215.

The Windstream Defendants lack sufficient lctiowledge, information or belief on

which to base a response to the allegations of Paragraph 215 and, on that basis, deny them.
216.

The Windstream Defendants lack sufficient knowledge, information or belief on

which to base a response to the allegations of Paragraph 216 and, on that basis, deny them.
217.

Denied as to the Windstream Defendants.

218.

Denied as to the Windstream Defendants.

219.

Denied as to the Windstream Defendants.

220.

Denied as to the Windstream Defendants.

221.

Denied as to the Windstrea~n Defendants.

222.

Denied as to the Windstream Defendants.

223.

Denied as to the Windstream Defendants.


FOURTH COUNT
Accounting

224.

The Windstream Defendants reincorporate their respo~ises to the preceding 223

paragraphs of the Amended Complaint set forth herein.


225.

The allegations of Paragraph 22S contaii7 a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstreain Defendants deny the
allegations of Paragraph 225.

33

226.

The allegations of Paragraph 226 contain a legal conclusion or conclusions which

require no response. To the extent any response is required, the Windstream Defendants deny the
allegations of Paragraph 226.
227.

Denied as to the Windstream Defendants.

228.

Denied.
NSW MATTER

1.

The Windstream Defendants deny any remaining allegations in the Amended

Complaint not specifically responded to or admitted herein. Without excusing Plaintiff's burden
of proof or admitting that the Windstream Defendants have any burden of proof, the Windstream
Defendants assert the following New Matter in response to the Amended Complai~lt. The
Windstream Defendants reserve all rights to assert additional New Matter as they become lcnowil
in the course of discovery. The Windstream Defendants incorporate by reference the
admissions, allegations, and denials contained in their Answer as if fully set forth herein.
2.

Plaintiff's Amended Complaint fails to state a claim against any of tlae

Windstream Defendants upon which relief can be granted.


3.

To the extent Plaintiff sustained injury or damage as alleged iii its Amended

Complaint, which is denied, said injury or damage was not proximately caused by any act ar
omission on the pait of, or which play be imputed to, the Windstream Defendants.
4.

Plaintiff's claims against the Witldstream Defendants are barred by 1 Pa. Cons.

Stat. Ann. 1504, because the rights, duties, and obligations set forth in the "911 Act," 35 Pa.
Cons. Stat. Ann. 5301, et seq., may only be enforced by the Pennsylva~~ia Emergency
Management Agency("PEMA").
5.

Plaintiff's claims against the Windstream Defendants are barred, offset, or

limited, in whole or in part, by the economic loss doctrine.


34

6.

Plaintiff's request for an "accounting" as to the Windstream Defendants is barred

because Plaintiff is not entitled to such relief as a matter of law.


7.

Plaintiff's accoLulting claim is bazred because it has adequate remedies at law.

8.

Plaintiff's claims against the Wiiadstream Defendants are barred for want of

jurisdiction before this Court pursuant to the doctrine of primary jurisdiction.


9.

Plaintiff's claim or claims are barred, in whole or in part, by the applicable

statutes of limitation or statutes ofrepose.


10,

Plaintiff's claims may be barred by the equitable doctrines of waiver, laches,

estoppel and/or unclean hands.


11.

Plainriff's Amended Complaint fails to state facts sufficient to support an award

of any special damages, puiaitive damages, and/or attorney's fees and, in any case, such damages
and fees are unproper, unwarranted, not authorized by law the parties' conduct and are
prohibited or limited by the Constitution of the United States aiad otlae~~ relevant jtiuisdictions
and/or by statute or case law.
12.

Plaintiff did not suffer any cognizable damages and/or failed to mitigate its

purported damages.
13.

Plaintiff's claims are barred because its alleged damages, if any, are too

speculative and uncertain. Plaintiff relies on a formula that erroneously co~lflates phone liiaes,
phone numbers, and "billable units," and improperly allocates damages on the basis of
assumptions of market share.
14.

Plaintiff's claims may be barred by any contractual limitation of liability,

indemnification or hold harmless provisions that may exist by co~ltract or otherwise and any
related terms thereunder.

35

15.

Plaintiff's claims against the Windstream defendants are barred because Plaintiff

failed to perform all conditions on its part precedent to recovery in this action, including, without
limitation, Plaintiff's failure to exhaust and exercise statutory remedies.
16.

Plaintiff's claims against tlae Windstream Defendants are barred because Plaintiff

failed to plead fraud with particularity as required by the applicable rules.


17.

Plaintiff lacks statlding to bring the claims asserted in the Amended Complaint

because the 911 Act creates no right of action for the claims alleged.
18.

Plaintiff's Amended Complaint fails to plead fraud as a matter of law. The

Windstream Defendants have made no misrepresentations to Plaintiff of any fact material to the
claims alleged in the Amended Complaint.
19.

Plaintiff's Amended Complaint fails to establish the existence of a fiduciary

relationship between the Windstream Defendants and Plaintiff.


20.

Plaintiff's Amended Complaint fails to establish negligent misrepresentation as a

matter of law. The Windstream Defendants have made no misrepresentations to Plaintiff of any
fact material to tl~e chinas alleged in t11e Amended Complaint. Plaintiff also cannot establish that
it reasonably relied to its detrime~it.
21.

Plaintiff's fiduciary duty claim fails as a matter of law. The Windstream

Defendants have never had the ability to alter Plaintiff's relationship with any third party.
Furthermore, the Windstream Defendants have never maintained or exercised overmastering,
one-sided influence or control over information related to Plaintiff's claims.
22.

Plaintiff's claims are bailed because it has failed to prove damages attributable to

any act or omission by the Windstream Defendants. The Windstream Defendants have collected
from their customers and remitted to Plaintiff all 911 taxes required by law. Plaintiff's claims

36

are entirely based on its allegations that the amount of 911 taxes that the Windstream Defe~zda~lts
have collected from customers is less than the amount required to be collected by the 911 Act.
23.

Plaintiff's claims may be barred by the doctrines of payment, compromise,

settlement, release, and/or accord and satisfaction.


24.

Plaintiff seeks an impermissible remedy for its claims.

25.

Because of the lack of clear standards in the Pemisylvania 911 Act, any

imposition of damages against the Windstream Defendants would violate the due process
guarantees of the U.S. and Pennsylvania constitutions.
PRAYER FOR RELIEF
WHEREFORE,the Windstream Defe~~dants respectfully request that this Court:
1. Dismiss Plaintiff's claims, with prejudice;
2. Enter judgment in favor of the Windstream Defendants as to all claims;
3. Award the Windstream Defendants their reasonable attorneys' fees and costs incurring in
defending this action; and
4. Grant such other and further relief as this Court deems just and proper.

37

Dated: May 16, 2016

submitted,

J on A. Levine (I.D. No. 306446)


ANGLEY ARONCHICK SEGAL
PUDLIN & SCHILLER
One Logan Square, 27th Floor
Philadelphia, PA 19103
Telephone:(215)496-7038
jlevine@hangley.com
Arthur L. Pressman (I.D. No. 10124)
J. William Codinha (admitted pro hac vice)
Emily C. Harlan (admitted pro hac vice)
Joshua S. Barlow (admitted pro hac vice)
NIXON PEABODY LLP
100 Summer Street
Boston, Massachusetts 02110-2131
Telephone: (617) 345-1000
apressman@nixonpeabody.com
jcodinha@nixonpeabody.com
eharlan@nixonpeabody.com
jbarlow@nixonpeabody.com
For Defendants Cczvczlier Telephone MidAtlantic LLC cznd Windstream
Communications,LLC(incorrectly named
as Windstream Communications,Inc.)

CERTIFICATE OF SERVICE
I, Jason A. Levine, hereby certify that on May 16, 201.6, I caused the foregoing
Answer and New Matter to be served via First Class mail on Plaintiff's counsel and via e-snail
upon other counsel, per agreement of counsel, as follows:

Michael P. Donahue
Allison D. Rule
Jane L. Wagner
MARASHLIAN & DONAHUE,LLC
The Con~mLaw Group
1420 Spring Hill Road, Suite 401.
McLean, Virgi~aia 22102
Telephone:(703) 714-1300
Facsimile:(703)563-6222
mpd(a~con~mlawgroup.com
adr@commlawgroup.com
jlw(a~coinmlawgroup.com

Thomas A. Leonard
Michael Eichert
OBERMAYER REBMANN
MAXWELL & HIPP~L LLP
One Penn Center, 19th floor
1617 Jolul F. Kennedy Blvd.
Philade1p11ia, PA 19103-1895
Telephone:(215)665-3174
Facsimile:(215)665-3165
thomas.leonard(cr~,obermayer.coin
ialichael.eichert(a~obermayer.com
-and-

-andWilliam L. Stang
Richard L. Holzworth
FOX ROTHSCHILD LLP
625 Liberty Avenue, 29th Floor
Pittsburgh, PA 1 5222-31 1 5
wstang@foxrotlaschild.com
rholzworth@foXrothschild.com
Attorneysfor Defe~zd~r~zt Ban~lwrdth.com
CLEC,LLC

Jay P. Leflcowitz, P.C.


Gregory L. Skidmore
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Telephone:(202) 879-S000
Facsimile:(202) 879-5200
leflcowitz(a~kirkland.com
greg.slcidmore(a~lcirlcland.com
AtZor~zeysfor Defendants i~erizon
Pe~~sylvanic~, Inc. c~ritl Verizon
Comr~2u~2icntions, Inc.

John K. Gisleson
Daniel Caimeli
MORGAN,LEWIS & BOCKIUS LLP
One Oxford Centre, 32nd Floor
Pittsburgh, PA 15219
Telephone:(412) 560-7435
jgisleson(cr~,morganlewis.com

Renardo Hicics
R. L. HICKS &ASSOCIATES
4740 Mountain View Road
Harrisburg, PA 17110
Telephone: (717)260-2060
Facsimile: (717)260-3072
rlh(a~rlhicicslaw.com

~~

-and-

Russell M. Blau
MORGAN,LEWIS & BOCKIUS LLP
2020 K Street, N.W.
Washington, DC 20006-1806
Telephone: (202) 373-6035
russell.blau(a~morganlewis.com

Dan Barnowsici
DENTONS
1301 K Street NW,Suite 600, East Tower
Washington, D.C. 20005
dan.barnowslci(a~dentot~s.com

Attorneysfor Defendants Peerless Network of


Penizsylvc~nicc, LLC anal YMax
Commu~zications Corp.
Joshua S. Wolson
Malini Rao
DILWORTH PAXSON LLP
1500 Market Street, Suite 3500E
Philadelphia, PA 19102
Telephone:(215)575-7000
jwolson@dilworthlaw.com

Attorneysfog Defendant XO
Co~rzmunications Services, Inc.

Matthew A. White
BALLARD SPAHR LLP
1735 Market Street
Philadelphia, Pa 19103
Tele~ho~ze: (215) 864-8849
WhiteMA(aballardspal~r.com
- and-

Attorneysfor Plai~ztiffDeCaware County


Laura Steinberg
SULLIVAN & WORCES'TER LLP
O~ae Post Office Square
Boston, MA 02109
Telephone: (617) 338-2800
Facsimile: (617) 338-288Q
lsteiiaberg@sandw.com
Attorneysfor Defendant Comcast Plaone of
Pen~zsylvania, LLC

Wayne C. Stansfield
Daniel M. Dixon
READ SMITH
Three Logan Square
1717 Arch Street, Suite 3100
Philadelphia, PA 19103
Telephone:(215)-851-8100
wstansfield~reedsmith.com
ddixon~cr~,reedsmith.com

Michael A. Gruin
STEV~NS &LEE
17 N. 2nd Street, 16th Fl.
Harrisburg, PA 17101
Telephone:(717) 255-7365
Facsimile:(610)988-0852
mag crstevenslee.com
Attorneysfor Defendants EarthLink
Business, LLC and Core Communications,
Inc.

Attorneysfor Defendants Level 3


ConZnzr~nications, LLC a~ztl IiZteliquent, Iizc.
Charles E. Thomas, III
THOMAS,NIESEN &THOMAS LLC
212 Locust Street, Suite 600
Harrisburg, PA 17101
TeleplZone:(717)-255-7600
Facsimile:(717)-236-8278
cet3~atntlawfirm.com

William M. Connolly
DRINKER BIDDLE & REATH LLP
One Logan Square, Ste. 2000
Philadelphia, PA 19103-6996
Telephone:(215)988-2753
Facsimile:(215)988-2757
William.connolly~a dbr.com

Attorneysfor Defendant Netcarrier Telecom,


Inc.

- and
Scott H. Angstreich
Jeremy S. Newman
KELLOGG,HUBER, HANSEN,
TODD,EVANS & FIGEL,P.L.L.C.
1615. M Street, N.W., Suite 400
Washington, DC 20036
Telephone:(202) 326-7969
Facsimile:(202) 326-7999
Attorneysfor Defendants AT&T Corp. nncl
Teleport Communications America, LLC

Paul J. Greco
BUCHANAN INGERSOLL & ROONEY PC
Two Liberty Place
50 S. 16th Street, Suite 3200
Philadelphia,PA 19102
Telephone:(215)-655-3814
paul.greco@bipc.com
-andJohn F. Povilaitis
BUCHANAN INGERSOLL & ROONEY PC
409 North Second Street, Suite #500
Harrisburg,PA 17101-1357
Telephone:(717)-237-4825
Facsimile:(717)-237-0852
john.povilaitis@bipc.com
Attorneysfor Defendant RCN Telecom
Services ofPlziladelplaia, LLC

Misty Smith Kelley


BAKER,DONELSON,BEARMAN,
CALDWELL & BERKOWITZ,PC
1900 Republic Centre
633 Chestnut Street
Chattanooga, TN 37450
Telephone:(423)-756-2010
Facsimile:(423)-752-9549
mkelley@bakerdonelson.com
-andJustin E. Proper
WHITE AND WILLIAMS
1650 Market Street
One Liberty Place, Suite 1800
Philadelphia, PA 19103
Telephone:(215)-864-7165
Facsimile:(215)-399-9629
proper@whiteandwilliams.com
Attorneysfo~~ Defendant Centurylink LLC

Steven A. Augustino
KELLY DRYE &WARREN LLP
Washington Harbour, Suite 400
3050 K Street, NW
Washington, DC 20007
Telephone:(202) 342-8612
saugustino@kellydrye.com
-and-

Charles C. Hunter
BROADVIEW NETWORKS,INC
800 Westchester Avenue, Suite N-501
Rye Brook, New York 10573
Telephone:(610)-755-4336
chunter@broadviewnet.com
Attorneysfor Defendant Broadview
Networks,Inc.

Marls Halpern
Helena Tsourous
HALPERN &LEVY,PC
1204 Township Line Rd.
Drexel Hill, PA 19026
Telephone:(610)668-5454
Facsimile:(610)668-5455
Attorneysfor Defendant Infinite
Communic~ction LLC
ti
J on A. Lev' e

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