Attorney Profiles

Experience:
Mark Himsworth is a partner in the litigation department at Hamburg, Rubin, Mullin, Maxwell & Lupin. He concentrates his practice in a wide variety of areas of commercial litigation.

He approaches litigation by understanding the client’s objective, making a comprehensive evaluation of the legal and factual issues, acquiring a thorough knowledge of the law through creative research, crafting and pursuing discovery based on that research and using motion practice effectively. Mark has achieved a reputation for being aggressive, yet civil, and well prepared.

Areas of Concentration:
Business Litigation
Mark devotes a considerable amount of his practice to business disputes, including cases involving covenants not to compete, interference with contractual relations, unfair competition, misappropriation of trade secrets, commercial defamation, partnership and shareholder disputes, including cases involving minority oppression and squeeze outs.

In one case, Mark represented a paper broker in a case against a paper manufacturer, who devised a plan to circumvent Mark’s client, and all other brokers, and to sell directly to the broker’s end user customers. The plan was to cut the middle man out. The challenge in the case, and in discovery, was to find actual proof of the unlawful plan. The defendant was based in Michigan, but was acquired by an Australian conglomerate, headquartered in the U.S. in Atlanta. Depositions of relevant witnesses were taken in Connecticut and Michigan, without the production of any meaningful documents. The breakthrough in the case came when Mark insisted upon making his own personal inspection of the paper company’s documents and records, all of which had been stored in a trailer and shipped to Atlanta. Mark flew to Atlanta and literally spent two entire days perusing through pages and pages of documents, which were boxed in no particular order in a trailer in the middle of a field outside of the paper mill in Atlanta. Lo and behold, buried in a drawer in an otherwise nondescript, dusty file cabinet, mixed among the boxes, was the evidence of the plot to cut brokers out: the actual in-house overhead slide presentation of the plan to “target” brokers. The case promptly settled thereafter, very favorably for Mark’s client.

In another case, Mark successfully defended a former shareholder of a national flood certification business who was sued for allegedly violating a covenant not to compete. Not only did Mark win a verdict for the former owner but, in addition, achieved a judgment in favor of his client in the amount of $120,000.

In another case, Mark represented a commercial realtor’s association, which formed a joint venture with two Fortune 500 companies to develop a website specifically for commercial realtors. After the defendants abandoned the joint venture, Mark filed suit. Due to the defendants’ delay in responding to carefully tailored discovery requests, the defendants were precluded, by court order, from presenting evidence which would refute Mark’s client’s valuation of damages. The case settled shortly thereafter for approximately $400,000.

Construction Litigation
Mark handles a wide spectrum of construction disputes, including construction defect claims, mechanic’s lien claims, unfair trade practice and consumer protection law claims, municipal bid litigation, and payment and performance bond claims.

Recently, Mark achieved a verdict in favor of an electrical contractor in the amount of approximately $400,000. The significance of the verdict, however, is that it is guaranteed personally by the principals of the defendant, and secured by assets owned personally by the principals of the defendant.
Mark’s client provided labor, material and services to the defendant corporation. The defendant’s “defense” for not paying mounting outstanding invoices was that third parties were not paying it and, alternatively, a dispute as to accounting errors. Mark filed suit and in just over six months, the verdict was obtained.

In preparation for trial, each and every third party who was alleged to have failed to pay the defendant, purportedly resulting in the defendant’s inability to pay the plaintiff, was personally contacted. Each confirmed that in fact the defendant had been paid in full and had been paid very promptly. Once that secret was out, the defendant changed its tune.

Not surprisingly, as trial was about to begin, the defendant made an offer of settlement, but with no security. Contemplating “piercing the corporate veil” to collect on an inevitable judgment against the corporate defendant, an investigation had already been made of the personal assets of the corporation’s shareholders. Those assets were significant.

This proved beneficial in negotiating a stipulated verdict, resulting in payment of $125,000 within two months, with the balance to be paid in installments, all secured by personal assets of the principals of the defendant, including a residence, a vacation home on the beach, and a yacht. To the extent that any person failed to execute any documents to secure the obligation, the court retained jurisdiction to enforce compliance.

Real Estate Litigation
Mark represents clients in various real estate disputes, including quiet title actions, partition actions, claims involving adverse possession, lis pendens, easements, deed restrictions, and disputes involving both residential and commercial agreements of sale, and tax assessment appeals.

Mark also represents residential and commercial brokers in broker malpractice cases and in commission disputes.

In one instance, he represented a family who owned a $1.5 million property that was sold at a tax sale, but because of defects in the sale, Mark was able to successfully set aside the sale and preserve the family estate.

Insurance Litigation
Mark represents clients in insurance policy and coverage disputes and bad faith claims.

Mark represented one of the area’s largest builders in an action brought by the builder’s insurance company seeking to avoid coverage in a case where there was multi-million dollar exposure to the builder. Through creative discovery, Mark obtained some “smoking gun” admissions of coverage by the carrier in interoffice memoranda, which ultimately prompted the carrier to acknowledge coverage and pay the lion’s share to settle the underlying litigation.

In another case, Mark represented a restaurant owner whose employee sustained a serious back injury in the course of employment, with the likelihood of needing multiple back surgeries. Upon submitting the claim to the worker’s compensation carrier, Mark’s client was told that there was no coverage, apparently because the worker’s compensation policy had lapsed. The carrier claimed that notice of the lapse was sent by certified mail to Mark’s client. In the process of filing suit, Mark investigated the protocol used by the U.S. Post Office for bulk certified mailing and learned that in fact no such mail had been mailed by the carrier. Once this was exposed, after suit was filed, the case resolved almost instantaneously. Worker’s compensation coverage was reinstated and, in addition, Mark’s client recovered all attorney’s fees and costs.

Banking Litigation
Mark is involved in an array of banking litigation, including disputes concerning residential and commercial loans, mortgage foreclosures, workouts, lender liability issues, including unauthorized payment of checks, forgeries, fraud and theft, and garnishment proceedings.

Orphans’ Court Litigation
Mark represents clients in will disputes and in estate administration disputes and guardianship proceedings.

For example, in one case, he was co-counsel for the guardian ad litem in a case concerning the questionable enforceability of multi-million dollar pledges, which various non-profits alleged were made by the decedent.

REPRESENTATIVE REPORTED CASES
Amplifier Research Corp. v. Hart, 144 B.R. 693 (E.D. Pa. 1992) (representing the plaintiff in a commercial defamation case, successfully defeated a motion to remove the case to Bankruptcy Court and eventually recovered a favorable settlement).

Rouse & Associates, Inc. v. Delp, 658 A.2d 1383 (Pa. Super. 1995) (successfully defended against the plaintiff’s attempts to execute on shares of a closely-held business).

Annenberg v. Commonwealth, 757 A.2d 338 (Pa. 2000) (high-profile, landmark personal property tax litigation; successful defense of Montgomery County’s personal property tax resulting in a $65 million savings to the County).

Israelit v. Montgomery County, 703 A.2d 722, Pa. Commw. 1997, aff’d, 725 A.2d 184 (Pa. 1998) (successful defense of Montgomery County in related landmark class action personal property tax litigation; class action dismissed summarily, setting precedent for dismissal of similar class actions which were dismissed subsequently).

Palmer v. Security National Bank, 2001 W.L. 877584 (E.D. Pa. 2001) (successfully defended a bank against allegations of racial discrimination and obtained a dismissal of the case and sanctions against the defendant).

Lapio v. Robbins, 729 A.2d 1229 (Pa. Super. 1999) (representing the lender against the borrower for breach of an oral $250,000 loan; won summary judgment against the defendant).

Hagan v. Olsho, 706 A.2d 1265 (Pa. Super. 1997) (represented a seller in connection with an agreement of sale where the plaintiff alleged fraud; not only was the buyer’s case dismissed in its entirety, but the seller was awarded the deposit money).

Lower Providence Township v. Solid Waste Services, Inc. d/b/a J.P. Mascaro & Sons, 747 A.2d 903 (Pa. 1999) (representing the township in a highly-publicized case; within four months of filing suit, due to the waste hauler’s reneging on its township-wide waste hauling contract, succeeded in a motion for judgment on the pleadings, resulting in a potential savings to the township and its residents in the amount of approximately $750,000).

Professional and Civic Activities:
Mark began his career as a summer clerk for the Honorable S. Gerald Corso of the Montgomery County Court of Common Pleas. Upon admission to the Bar, he was an associate in the general practice law firm of Rubin, Glickman & Steinberg, and later an associate in the medical malpractice defense and property and casualty defense firm of Masterson, Braunfeld, Himsworth and Maguire.

In 1992, Mark joined the commercial litigation department at Hamburg, Rubin, Mullin, Maxwell & Lupin and since 1998 has been a partner.

He is an active member of the Montgomery Bar Association and past President of the Montgomery Trial Lawyers. He is a member of the Montgomery Inn of Courts as a Barrister and Treasurer.

COMMUNITY ACTIVITIES

Mark is a former member of the Board of Directors of the Patrician Society, a non-profit food cupboard devoted to helping the needy in the Norristown area. He is a former member of the Board of Directors and an officer of the United Fund of Collegeville-Trappe, Inc., a non-profit serving various charities in the Collegeville-Trappe area. He is past President of the Board of Directors of Big Brother Big Sisters of Montgomery County, and presently counsel for the agency. He was a member of the Trappe Borough Planning Commission. He is a member of the Perkiomen Valley Chamber of Commerce. He is an active member of the Notre Dame Club of Philadelphia.
Mark is active in his parish at St. Eleanor Church, and he and his wife, Kelly, are the proud parents of three wonderful children.

EDUCATION

Mark received a Bachelor of Business Administration degree, with a major in accounting, from the University of Notre Dame in 1984. He obtained his J.D. from Widener University School of Law in 1987.