Loading...
HomeMy WebLinkAbout96-01160 .~ )' '; t ~ ~' ~ ,/ ./ ./ ) I ~ I . J f , .' I 1 , \ , ~,J ' ~I" , , ~: \)-1 ~I 1 . 'j " . .. " 'I .1 ~ !), 1'-- .' " . " ~ , It. .J(,l - I:L....'~ 1~ -}M/'" ( )'l .' i "'L'_l__._ I A-~. ..-' }:;-~~~~ was a passenger in a certain Chevrolet Blazer motor vehicle, which was involved in the hereinafter-mentioned collision. 6. Defendant GREGORY J. BOLZE solely owned, leased and/or maintained a certain Dodge Aspen motor vehicle which was involved in the hereinafter'mentioned collislon. .,. Defendant GREGORY J. BOI,Zr:: operated and controlled the aforesaid Dodge Aspen motor vehicle which was involved in the hereinafter-mentioned collision. 8. Defendant THOMAS J. ANDRUZZI solely owned, leased and/or maintained a certain Chevrolet Blazer motor vehicle which was involved in the hereinafter-mentioned collision. 9. Defendant JOHN R. ANDRUZZI operated and controlled the aforesaid Chevrolet Blazer motor vehicle which was involved in the hereinafter-mentioned collision. 10. At all times herein concerned, Defendant JOHN R. ANDRUZZI did operate and control the aforesaid Chevrolet Blazer motor vehicle as the agent, servant, workmen and/or employee of Defendant THOMAS J. ANDRUZZI acting on the business of the said Defendant THOMAS J. ANDRUZZI and acting within the scope of his employment by said Defendant THOMAS J. ANDRUZZI. 11. In the alternative, at all times herein concerned, Defendant, JOHN R. ANDRUZZI did operate and control the aforesaid Chevrolet Blazer motor vehicle'in his individual capacity, and with the knowledge and per~i6.sion of Defendant THO"LZl,S J. ANDRUZZI. " 12. On or about July 29, 1994 in the afternoon hours, Plaintiff KIMBERLY A. MARGAN was a passenger in the aforesaid Chevrolet Blazer motor vehicle owned by Defendant THOMAS J. ANDRuzzr and operated by Defendant JOHN R. ANDRUZZr, which was travell.ing southbound on S.R. DOll near its intersection with college Hill Road, in the Township of East pennsboro, County of East Cumberland and Commonwealth of Pennsylvanla. 13. At the aforesaid time and place, Defendant GREGORY J. BOLZE was the operator of a Dodge motor vehicle which was travelling northbound on S.R. 0011 and made a left hand turn directly in to the path of the Andruzzi motor vehicle, violently striking, and/or cclliding with the aforesaid motor vehicle operated by Defendant THOMAS J. ANDRUZZI. 14. The aforesaid collision resulted solely from the negligence, carelessness and/or recklessness of the Defendants, jointly and/or severally, and was due in no manner nor part whatsoever to any, act or failure to act ont he part of the Plaintiff. 15. As a result of the aforesaid collision, Plaintiff KIMBERLY A. MARGAN, has suffered, continues to suffer and may in the future suffer injuries which are and/or may be serious, severe and permanent, including but not limited to: injuries to the right knee and right elbow; multiple scars of the right forehead, right eyebrow and right upper eyelid; multiple lacerations and/or contusions in and about the h~ad and face; and/or an aggravation, acceleration and/or activation of any pre-existing condition or conditions regarding' -sa"me, as lvell as a severe shock to her emotional, psychological and nervous systems, all of which have caused, continue to cause and will probably in the future cause her great pain and agony. 16. By reason of the injuries sustained as aforesaid, Plaintiff KIrvlBERLY M. MARGA.'l has been and may ccmtinue to be hindered from attending to her daily duties, functions, occupations and avocations to her great detriment and loss. 17. As a /further result of this collision, Plaintiff KIMBERLY M. rvlARGAN has been or wi 11 be obliged to receive and undergo medical attention and care and to expend various sums of money or incur various expenses, which expenses have exceeded or may in the future exceed the sums recoverable under the limits in 75 Pa. C. S. A. 1711, and she may be obI iged to continue to expend such sums or incur such expenditures for an indefinite period of time in the future. 18. As a further direct and proximate result of this collision, Plaintiff KIMBERLY ~1. MARGA.'I/ has incurred or may hereafter incur other financial expenses or losses which do or may exceed the amounts by which she may otherwise be entitled to \ recove~ under 75 Pa. C,S.A. 1711. 19. The aforesaid collision was caused by the negligence, carelessness and/or recklessness of Defendant GREGORY J. BOLZE, consisted of but is not limited to the following: a. Failure to be on the look-out and to be watchful for other motorists while making a left hand turn; b, Failure to properly operate and control his motor vehicle under the circumstances; c, Failure to make a left hand turn with caution under the circumstances; d. When the Defendant GREGORY J. BOLZE saw or should have seen the vehicle in which Plaintiff KIMBERLY tvt. tvlARGAN ~hlS a passenger and avoid same, he failed to do so, thus causing the aforesaid collision; '.. r:-) f" " , >, 1 - 1lI ~ " " r- ....: l...~. C:" , , L' r :J '- u, , ~ l_.' '. McNEES, WALL^CE &: NURICK 100 PINE STREET "';', P. O. lOll II.. HARRI:3BURG. PA 17108 4. This avsrment requires no response. 5. Plaintiff incorporates by reference her answers to paragraphs one (1) through four (4) as fully as though the same were set forth herein at length. 6. Denied. The allegations contained in paragraph six (6) are conclusions of law to which the Pennsylvania Rules of Clvil Procedure require no responsive pleading, they are therefore denied and strict proof thereof is demanded ~t trial, if relevant. Furthermore, the Complaint provides sufficient notice for the Defendants to prepare and file an Answer. 7. Admitted in part; denied in part. It is admitted that 1019(a) states the information. The remaining avermente of paragraph seven (7) ar conclusions of law to which the Pennsylvania Rules of civil Procedure require no responsive pleading, they are therefore denied and strict proof thereof is demanded at trial, if relevant. Furthermore, the Complaint contains sufficient information to allow the Defendants to file an Answer and prepare a defense. 8. Plaintiff incorporates by reference her answers to paragraphs one (1) through seven (7) as fully as tho\\gh the same were set forth herein at length. 9. Admitted in part; denied in part. It is admitted that paragraph twenty (20) (h) does not state which Ordinance, statute or law was violated. The remaining averments of paragraph nine (9) are conclusions of law to which the Pennsylvania Rules of Civil 2 P~ocedure require no responsive pleading, they are therefore denied and strict proof thereof is demanded at trial, if relevant. ......0.., Plalntiff, KIMBIRLY M. MAAG~, reapectfully requests this Hor:orable Court to dism.lss Defendants' Prelimina~y Objections with prejudice. In the alternative, Plaintiff requests the opportunity to file an Amended Complaint. 10. Plaintiff incorporates by reference her answers to paragraphs one (1) through nine (9) as fully as though the same were set forth herein at length. 11. This averment requires no response. 12. Denied. The allegations contained in paragraph twelve (12) are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleading, they are therefore denied and strict proof thereof is demanded at trial, if relevant. Furthermore, while Defendants may not agree that this is an appropriate averment, the proper remedy is not through Preliminary Objections but rather through Summary Judgment or such similar vehicles. Plaintiff's averments does not lack "conformity to law. and, in fact, Pennsylvania law requires a driver to have his vehicle under control at all times when traveling upon the roadway. 13. Denied. The allegations contained in paragraph thirteen (13) are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleading, they are therefore denied and strict proof thereof is demanded at trial, if relevant. Furthermore, while Defendants may not agree that this is an appropriate averment, the proper remedy is not through Preliminary 3 ~ . L~ , I ~q i ~ I- I' Ii! , ~ 'a I . ; ! ~ '" ~ " i was a passenger in a certain Chevrolet Blazer motor vehicle, which was involved in the hereinafter-mentioned collision. 6, Defendant GREGORY J. BOLZE solely owned, leased and/or maintained a certain Dodge Aspen motor vehicle which was involved in the hereinafter-mentioned collision. 7. Defendant GREGORY J. BOLZE operated and controlled the aforesaid Dodge Aspen motor vehicle which was involved in the hereinafter-mentioned collision. 8. Defendant THOMAS J. ANDRUZZI solely owned, leased and/or maintained a certain Chevrolet Blazer motor vehicle which was involved in the hereinafter-mentioned collision. 9. Defendant JOHN R. ANDRUZZI operated and controlled the aforesaid Chevrolet Blazer motor vehicle which was involved in the hereinafter-mentior.ed collision. 10. At all times herein concerned, Defendant JOHN R. ANDRUZZI did operate and control the aforesaid Chevrolet Blazer motor vehicle as the a~ent, servant, workmen and/or employee of Defendant THOMAS J. ANDRUZZI acting on the business of the said Defendant THOMAS J. ANDRUZZI and acting within the scope of his employment by said Defendant THOMAS J. ANDRUZZI. 11. In the alternative, at all times herein concerned, Defendant, JOHN R. ANDRUZZI did operate and control the aforesaid Chevrolet Blazer motor vehicle in his individual capacity, and with the knowledge and permission of Defendant THOMAS J. ANDRUZZI. 12. On or about July 29, 1994 in the afternoon hours, Plaintiff KIMBERLY A. MARGAN was a passenger in the aforesaid Chevrolet Blazer motor vehicle owned by Defendant THOMAS J. ANDRuzzr and operated by Defenddnt JOHN R. ANDRUZZr, which was travelling southb'Jund on S,R. 0011 near its intersection wirh College Hill Road, in the Township of East Pennsboro, County of East Cumberland and Commonwealth of Pennsylvania. 13 . At the aforesaid time a'ld place, De fendant GRiWORY J, BOLZE was the operator of a Dodge motor vehicle which was travelling northbound on S,R, 0011 and made a left hand turn directly in to the path of the Andruzzi motor vehicle, violently striking, and/or colliding with the aforesaid motor vehicle operated by Defendant THOMAS J. ANDRUZZI. 14. The aforesaid collision resulted solely from the negligence, carelessness and/or recklessness of the Defendants, jointly and/or severally, and was due in no manner nor part whatsoever to any act or failure to act ont he part of the Plaintiff. 15. As a result of the aforesaid collision, Plaintiff KIMBERLY A. MARGAN, has suffered, continues to suffer and may in the future suffer injuries which are and/or may be serious, severe and permanent, including but not limited to: injuries to the right knee and right elbow; multiple scars of the right forehead, right eyebrow and right upper eyelid; multiple lacerations and/or contuslons in and about the head and face; and/or an aggravation. acceleration and/or activation of any pre-existing condition or conditions regarding same, as well as a severe shock to her emotional, psychological and nervous systems, all of which have caused, continue to cause and will probably in the future cause her great pain and agony. " ~ J , '/ S ',II I iJJj . , I I ~ I 1111 illa} II LAW OFFICES SERENI, PIERCE & HUGHES THI MA~PlI COMMONS 1001 SPROUL ~OAD ."OOMAU, peNNSYLVANIA 19008 Harvey Foedonberg. Esquire 100 Pine Stre.H Harrisburg, PA 17108 f . . .J' , , .. -l ,., r..,. . ". , , ." . ..... '-..,. ~ . 4. Defendart THOMAS J. ARDRUIII is and was an adult individual residing at 2200 Custom Village Court, North Bellmore, NY 11 71 0 . 5. This action arises out of a motor vehicle collision in which Plaintiff was 8 passenger. 6. Plaintiff filed a Civil Action - Complaint on or about March 4, 1996. 7. Defendants, JOn R. ARDRUIII and THOMAS J. UDRUIII thereafter filed Preliminary Obj ections to Plaintiff's Complaint. 8. Defendant, GREGORY J BOLIZ has recently retained counsel and has not filed a responsive pleading to date. 9. Plaintiff filed a Response to Defendants' Preliminary Objections on or about April 2, 1996. 10. Counsel for Defendants Andruzzi filed a praecipe for Listing Case for Argument. 11. Oral Argument on Defendants' Preliminary Objections was scheduled for May 29, 1996. 12. On April 2, 1996 Counsel for Plaintiff was notified to appear in the Court of Common Pleas of Philadelphia county in another matter on May 29, 1996. 13. On May 15, 1996 counsel for Plaintiff received notice of the within oral argument. 14. Counsel for Plaintiff contacted counsel for Defendants Andruzzi on May 17, 1996 requesting a continuance of this matter. 15. Defendants' counsel is opposed to Plaintiff's request. 2 4. Defendant THOMAS J. ANDRUZZI is and was an adult individual residing at 2200 Custom village Court, North Bellmore, NY 11710. 5. This action arises out of a motor vehicle collision in which Plaintiff was a passenger. 6. Plaintiff filed a civil Action - Complaint on or about March 4, 1996. 7. Defendants, JOHN R. ANDRUZZI and THOMAS J. UDRUZZ! thereafter filed Preliminary Objections to Plaintiff's Complaint. B. Defendant, GREGORY J BOLZE has recently retained counsel and has not filed a responsive pleading to date. 9. plaintiff filed a Response to Defendants' preliminary Objections on or about April 2, 1996. 10. Counsel for Defendants Andruzzi filed a praecipe for Listing Case for Argument. 11. Oral Argument on Defendants' Preliminary Objections was scheduled for May 29, 1996. 12. On April 2, 1996 Counsel for Plaintiff was notified to appear in the Court of Common Pleas of Philadelphia County in another matter on May 29, 1996. 13. On May 15, 1996 counsel for Plaintiff received notice of the within oral argument. 14. Counsel for Plaintiff contacted counsel for Defendants Andruzzi on May 17, 1996 requesting a continuance of this matter. . 15. Defendants' counsel is opposed to Plaintiff's request. 2 . 4. Defendant THOMAS J. ABDRUZZI is and was an adult individual residing at 2200 Custom village Court, North Bellmore, NY 11710. 5. This action arises out of a motor vehicle collision in which Plaintiff was a passenger. 6. Plaintiff filed a Civil Action - Complaint on or about March 4, 1996. 7. Defendants, JOH. R. UDRUZZI and THOMAS J. UDRUZZI thereafter filed Preliminary Objections to Plaintiff's Complaint. 8. Defendant, GREGORY J BOLZE has recently retained counsel and hus not filed a responsive pleading to date. 9. Plaintiff filed a Response to Defendants' preliminary Objections on or about April 2, 1996. 10. Counsel for Defendants Andruzzi fil.ed a praecipe for Listing Case for Argument. 11. Oral Argument on Defendants' Preliminary Objections was scheduled for May 29, 1996. 12. On April 2, 1996 Counsel for Plaintiff was notified to appear in the Court of Common Pleas of Philadelphi>.! County in another matter on May 29, 1996. 13. On May 15, 1996 counsel for Plaintiff received notice of the within oral argument. 14. Counsel for Plaintiff contacted counsel for Defendants Andruzzi on May 17, 1996 requesting a continuance of this matter. 15. Defendants' counsel is opposed to Plaintiff's request. 2 4. Defendant THOMAS J. ANDRUZZI is and was an adult individual residing at 2200 Custom village Court, North Bellmore, NY 11 71 0 . 5. This action arises out of a motor vehicle collision in which Plaintiff was a passenger. 6. plaintiff filed a Civil Action - Complaint on or about March 4, 1996. 7. Defendants, JOHN R. ANDRUZZI and THOMAS J. AJlDRUUI thereafter filed Preliminary Objections to Plaintiff's Complaint. 8. Defendant, GREGORY J BOLlE has recently retained counsel and has not filed a responsive pleading to date. 9. Plaintiff filed a Response to Defendants' Preliminary Objections on or about April 2, 1996. 10. Counsel for Defendants Andruzzi filed a praecipe for Listing Case for Argument. 11. Oral Argument on Defendants' Preliminary Objections was scheduled for May 29, 1996. 12. On Apr.il 2, 1996 Counsel for Plaintiff was notified to appear in the Court of Common Pleas of Philadelphia County in another matter on May 29, 1996. 13. On May 15, 1996 counsel for Plaintiff received notice of the within oral argument. 14. Counsel for Plaintiff contacted counsel for Defendants Andruzzi on May 17, 1996 requesting a continuance of this matter. 15. Defendants' counsel is opposed to Plaintiff's request. 2 4. Defendant THOMAS J. ANDRUZZI is and was an adult individual residing at 2200 Custom Village Court, North Bellmore, NY 11710. 5. This action arises out of a motor vehicle collision in which Plaintiff was a passenger. 6. Plaintiff filed a Civil Action - Complaint on or about March 4, 1996. 7. Defendants, JOHN R. ANDRUZZI and THOMAS J. ANDRUZZI thereafter filed Preliminary Objections to Plaintiff's Complaint. 8. Defendant, GREGORY J BOLZE has recently retained counsel and has not filed a responsive pleadlng to date. 9. Plaintiff filed a Response to Defendants' preliminary Objections on or about April 2, 1996. 10. Counsel for Defendants Andruzzi filed a Praecipe for Listing Case for Argument. 11. Oral Argument on Defendants' Preliminary Objections was scheduled for May 29, 1996. 12. On April 2, 1996 Counsel for Plaintiff was notified,to appear in the Court of Common Pleas of Philadelphia County in another matter on May 29, 1996. 13. On May 15, 1996 counsel for Plaintiff received notice of the within oral argument. 14. Counsel for Plaintiff contacted counsel for Defendant. Andruzzi on May 17, 1996 requesting a continuance of this matter. 15. Defendants' counsel is opposed to Plaintiff's request. 2 LA'II OfJICES SERENI, PIERCE & HUGHES THIMAllPU COIotMONS IDOl SPROUl ROAD 8ll00MALL. PENNSnVANIA 19003 Michael P. Pierce, Esquire SERENI. PIERCE & HUGHES The Marple Commons 2002 Sproul Road Broomall, PA 19008 LAW Ol"flCES SERENI. PIERCE & HUGHES THl! MARPLE COMMONS 1001 SPllout ROAD BROOMAll. PENNSYLVANIA 1'lOO8 John F Yaninek, E~quire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS llO South Northern Way York, PA 19402-3737 ,> -, J" ",1 I I- ~, '. . , , . . . " 'if'. ~ . ...f'.-..... 1 f ',i '-. '\. '\0 ~ ; Plaintiff brings an action agalnst John R. Andruzzi and his father, Thomas J. Andruzzi, the registered owner of the Chevrolet Blazer and Gregory J. Bolze. Plaintiff alleges personal injuries sustained from the accident. Plaintiff alleges in paragraph 20(g) that John R. Andruzzi's negligence consisted of "such other negligent, careless, and recklessness as may appear as part of discovery proceedings or in preparation for trial"; and paragraph 20(h) "violating the various ordinance, statutes, and laws of the Township of East pennsboro, County of East Cumberland, and Commonwealth of Pennsylvania, pertaining to the operation of motor vehicles while making left- hand turns upon the highway." Defendants objected to paragraphs 20(g) and (h) as vague and unspecific and not informing Defendants of what type of negligence is being alleged. Plaintiff alleges in paragraph 20(f) that Defendant, John R. Andruzzi, failed to uphold the duty he owed to Plaintiff to be exceedingly vigilant to have his vehicle under such control as to be able to stop at the slightest sign of danger when traveling upon the highway. Defendants have objected to the allegation in 20(f) as nonconforming to Pennsylvania law. Defendants, John R. Andruzzi and Thomas J. Andruzzi, have filed this Brief in support of their Preliminary Objections. 2 A pleading must contain averments of all facts that the party will eventually prove at trial in order to recover. Commonwealth Deoartment of Transcortation v. Shiolev Humble Oil Company, 29 Pa. Commw. Ct. 171, 370 A.2d 438 (1977). The factual averments must also be sufficiently be specific to enable the opposing parties to prepare a defense to the claim. jg. See also Cassel v. Shellenberaer, 356 Pa. Super. Ct. 101, 514 A.2d 163 (1986); ~ of Philadelohia v. Kane, 6:\ Pa. Commw. Ct. 463, 43 A.2d 1051 (1982) . Plaintiff claims Tt Defendant, John R. Andruzzi, is 20(g) 'such other negligence, carelessness negligent in paragra and recklessness as pear as part of discovery proceedings or in the preparation for trial"; al1d/';~violating the various ,\. / ordinances, statutes and laws of th&.~nship of East pennsboro, County of East Cumberland, and Commonwealth of Pennsylvania, pertaining to the operation of motor vehicles while making left- hand turns upon the highway." Plaintiff's allegations in paragraph 20(g) and (h) are extremely vague and unspecific. They do not put Defendant, Andruzzi, on notice as to what negligence Defendant committed. Further, the Defendant cannot specifically prepare a defense when it is alleged that any possible negligence that may be uncovered throughout discovery is the basis of Plaintiff's cause of action. 4 JNG v. Witters, 452 F.Supp. 1349 (1976) affirmed 591 F.2d 1334 (1978). Further, the Assured Clear Distance Rule applies only to obstructions which are static or essentially static, including vehicles moving in the same direction. Cannon v. Tabor, 434 E>a. Super. Ct. 232, 642 A.2d 1108 (1994). In the case at bar, it would appear that the Assured Clear Distance Rule does not apply because the facts indicate a sudden and clear emergency arising. This emergency was Defendant, Gregory J. Bolze, turning into the path of John R. Andruzzi. However, at this stage of the proceeding, the E>laintiff can certainly plead Defendant, Andruzzi, failed to abide by the Assured Clear Distance Rule. However, there is no such duty imposed on Andruzzi as described in paragraph 20(f). In the instant case, E>laintiff Gannot cite any statute or other situation which would prescribe the a duty imposed by Plaintiff in paragraph 20(f) of her Complaint. Therefore, paragraph 20 (f) of E>laintlff I B Complaint should be stricken for lack of conformity to law. :IV. CONCLUS:ION For the above stated reasons, Defendants, John R. Andruzzi and 8