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Home My WebLink About96-01608 ~ i I , ~ ~ ~ . ~ CI ~ J ~ 0.. o i ~; , . ~I ~! . i ~! r;:l I I \ \ \ "~ " \ i i J i / ! a l1\\not, '0'1 anG y..'l p..~ ~cG\\..\..' anG n\\\uta\ iSilOu~ ni.s {laten\ \~\~ ~cG\\..\..' %uatG\an~ ~~ ~cG\\..\..' \n \l.et anG c~'- . o~ t\~\' y\a\n\\~~s ~ \,\..~p..S o~ Co\.ly..1 o~ co~~~~~s'l\.. V p..~\p.. \~ 1\\~ ~v co\.l1'i1 ... C\.l~~~y..\..p.. C\V\\" p..C1\0~ . \..p.. ~ '/. uy..\l.\\o\..v~y.. anG 1V-C'l \... ~\.Iy..v.\\o\..v~~ vJcv.'l \... ~ oe~enGat\\S ~o. qo'\oO% C\V\\" 1~w^ 10'. S'i\'1an\a', \anG coun\'i' \,enn \,\eaS o{ Cl)l\\'()et CO"" ,! C....... """C\'.' ...""""'" . . .""" .... G Gw;on\\nue . . se\\\eG ~ ~'1e ac\\on \,\eaSlll1\at'f. tne a 8z. Cp..v.f~'l ...."""" "''''~ ""'~? . r^f\,cJ.,1.., 0 . ~'l . O. ~a1o'iI1\U\ ~\c\l.o\aS, \,\a\n\\\{s counsel ,ot va\eG'. \J. ,\l r 0' ;- CI .-- -. .. '5 ..:z :>f g: .J 21 & C") J - 6 :!1 ~ -J ... ~ ~ ::J U . - I KREJTHEN . I BARON &: CARnY AnaN.'r1AJUw Tenth Floor 1201 Chestnut Street Phlla., PA 19107-1179 215 56J.ll286 Fax: 215 56J.08.18 December 10, 1996 Cumberland County Courthouse I Courthouse Square Carlisle, P A 17013 AUa: Presldeat Judge Harold E. Sheely Re: Our File Number: 94388 McGill VS. Burkholder CCP Cumberland County: No. 96.1609 Dear President Judge Sheely: Pursuant to YOUl' request at the Minor's Compromise hearing held on October 21, 1996, enclosed plea.'IC nnd a copy of the Certificate of Income. By copy of this letter an enclosure to the Prothonotary's office, I hope this satisfies the Courts request. If any other information is needed or required, kindly contact me Immediately 10 that I can provide any additional as soon as possible. Respectfully yours, ?~ehKtW i} . 1Jla'VrUJr NICHOLAS D. MAXYMUIK, ESQUIRE KREITHEN. BARON & CARPEY, P.C, NDMljmk Enclosures Dictated but not read. cc: Cumberland County Prothonotary (w/enclosuresJ j;1..hu'Clfmc"IJI..pphaIy I" MARliN KJrrrflEN BRUCE B.'RON StUAIlT A. CARIn NICHOlAS D. MAnMllk -..A. J . . , t;...~ ~ ~ CERTIFICATE OF INCOME THE FARMERS NATIONAL DANK OF NEWVILLE NEWVII.I.E, PA. N!! SSH OR TAX ID NO PlR ANNUM RATI oA.,. WILL PAY $14,572.16 DOLLARS OlPOSf'40AIIMENT NAME: Ryan !lcGi II, a minor, 'ACI VAlUE. PA""8U AT MATURIT"t DATION RITUAH 01 THIS CERTifICATE ,ROPE" Y INDOASlD, INTERlIT RAT' AI Not to be withdrawn until said minor reaches the STAno AIIOV1I .AYAIIlJ IV CttICK AUNO "" IACH INTI" age of 18 or upon the Order of a Court of I9TCHECK.EAOOOA8A11OYE9HOWN,NO..TIAUT,,"IA , MATURITY, Competent Jurisdiction ~ SUBJEcNJT~~~~'i~l&:~flO~~%\ME1f PA 17241 AI.A~..f1f.' ..L ON AEVEASE SIDE HEAEOF, /' /AUTHOAIZED SI NAT Exec. Vice-Pr . tr- -'. KREITHEN, BARON & CARPEY BY I NICHOLAS D. MAXYMUIK I.D. NO. 62180 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215) 563-8286 ATTORNEY FOR PLAINTIFF RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE McGILL, in her own right IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-160i CIVIL TERM v. TRACEY L. BURKHOLDER and RICKY L. BURKHOLDER CIVIL ACTION - LAW ~-E E R OF COURT <.;--1 AND NOW, this L I ~ day of OCTOBER, 1996, upon consideration of the instant Petition for Leave to Compromise Minor's Action, it is ORDERED that Petitioner is authorized to enter into a settlement with Defendants Tracey L. Burkholder and Ricky L. Burkholder in the gross sum of Twenty Thousand ($20,000) Dollars. IT IS FURTHER ORDERED and DECREED that the settlement proceeds be distributed as follows: KREITHEN, BARON & CARPEY For Costs 472.84 n $ KREITHEN, BARON & CARPEY For Counsel Fees $ 5,000.00 TO: Nicholas D. Maxymuik, Attorney for Charminie McGill, Parent and Natural Guardian of Ryan McGill, a minor, said sum to be placed in a federally insured savings account or federillly insured savings certificate to be marked, "Not to be withdrawn until said minor reaches the age of 18, or upon the Order of A Court of Competent Jurisdiction." $ 14.572.16 ;. 20,000.00 f"" - j! .~ ,-' N q, .... ~4.." (...1 r.:~ Q t.'5 ~ ,~": , . .J",~ ~J... ..):~ ,;-:1 . ,- . (.) .:l~ " I~b OW)u... ':;"'j Q ~ ~ ~ Q g , Qo. >- ......... ......., ", a 3 ~ v, .\i.o - I'- d JtJlIITBBN, BARON, VILLARI" GOLOMB BY' RICBAJU) M. GOLOMB I.D. NO. 42845 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 ATTORNBY FOR PLAINTIFF RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE McGILL, in her own right COURT OF COMMON VLEAS CUMBERLAND COUNTY v. TRACEY L. BURKHOLDER and RICKY L. BURKHOLDER No. 96-1609 PETITION FOR LEAVE TO COMPROMISE MINOR'S ACTION .0 THE HONORABLE, THE JUDGES OF THE SAID COURT: The petition of Ryan McGill a minor by his parent and natural guardian, Charminie McGill and her attorneys, KREITHEN, BARON, VILLARI & GOLOMB respectfully represen~s: 1. petitioner is Charminie McGill, parent and natural guardian of Ryan McGill, a minor. 2. The ,ninor was born on April 14, 1991, and his social security numner is 193-72-4542. 3. The minor resides with Charminie McGill at the following address: 407 Roxbury Rd., Newville, PA 17241. 5. The minor's mother is Charminie McGill, who resides at rhe following address: 407 Roxbury Rd., Newville, PA 17241. 6. The defendants are Tracey L. Burkholder, who resides at 1104 Doubling Gap Road, Newville, PA 17241 and Ricky L. Burkholder who resides at 157 Beetem Hollow Rd., Newville, PA 17241. 7. On May 11, 1994, the minor sustained the following injuries: right tibia, right radius, right ulna, right eye and right portion of his face when he was a pedestrian struck by a motor vehicle operated by Defendant Tracey L. Burkholder and owned by Defendant Ricky L. Burkholder. 8. Attached is a statement, under oath, of the minor's parents and/or guardian and/or guardian ad litem certifying the physical and/or mental condition of the minor, as well as her approval of the proposed settlement and distribution. 9. The following settlement has been proposed: The gross amount of $20,000.00 negotiated with Erie Insurance Company, since this represents the total amount of available coverage. 10. Cour.sel is of the professional opinion that the proposed settlement is fair and reasonable and that it adequately compensates for the injuries sustained, and expenses incurred, and he does further approve the proposed distribution contained in the form of Order attached hereto. 11. Counsel was retained upon a contingent fee basis of 33 and 1/3% plus costs. A copy of the retainer agreement is attached. 12. Counsel requests a fee in the sum of $5,000.00 which represents 25% of the settlement payable to the minor. 13. The Department of Public Welfare, or any other entity, Does Not, have a claim or lien against the plaintiffs. 14. Counsel has not and will not receive collateral payments as counsel fees for representation involving the same matter from third parties. AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA RICHARD M. GOLOMB, ESQUIRE being duly sworn according to law, deposes and says that he is counsel for Ryan McGill a minor, and that he has negotiated the proposed settlement with Erie Insurance Company and he respectfully requests Court Approval for the settlement because he considers the settlement figure fair and reasonable and adequate compensation for the injuries sustained by minor plaintiff under all the circumstances. ~~ RICHARD M. GOLOMB,ESQUIRE Jt/UIJ IUIM~~~E~ _..lIt- -"\ 1 . _...... ..-- .......... I " VERIFICATION I, CHARMINIE MCGILL, am the Petit loner in this action and hereby verify that the statements made in the foregoing Petition to Settle or Compromise Minor's Action are true and correct to the best of my knowledge, information and belief. I understand that the statements in sa id Pet ition are made subject to the penalties of 18 Pa. C.S. Section 4904 elating to unsworn falsification to authorities. Date: 1J-/9-f{# ~~~-//1lJi/ MINIE MCGILL n. r; j\\' II t; t;tll~ll'I' I'OWFn OF l\'I"1'OnNr.'l Dl\TE: . ,\ '. ' . I '. . .1 . .. ., . .. I :WWI, ~he ;undersiCJned, do appoint IlPJirhp.( :()tr~M'( l,,'/JAP,' . the law th'1II ot Kre1then, Baron, villarI""TCOlblllD to, .\nstltute anLl . llaLnUJ:n an action aCJa Inst any person or Urlll, or, corporation who MAY b!r nspons.Lble tor Illy/our clailll tor damaCju. sustA'ined, on " q..~. '1...,.." /olYlb .' or to eHect an alllicable slttll""nt. . I : ; I - . . .. .' '. I/We a9r.. that out at whatever sum is secured by my/our \ttC\rnays or by me/us trolll the above responsible part ies, ei\:hef by', , WAY ot :,utthlllent or v.rdict, the attorney a.hall re':ain .~~ It ~ percent ot the qros.. racovery and In Addltlon thereto, the .xp.ns.. ,at. ,sult, ,prltrial dlscov.ry, Invest19ation, medical expert' Ivaluatlon(~) and rlports, and the ta.s And expensl. ot witne...., and oth.r .xpen.a. paid In hand\lnq the tl1e, it any, shall thin be raiMbur.ad to the sAid,attorn.ys. , ,. : ! ~i'l medical bill. incurred as a result ot the ,Accid.nt/incidlnt, wh.ther expended by coun..l on blhalt ot Me/u. or not, .hall b. charq.abl. to My/our share ,.xclusiv.ly, it not pr.vlously pAid by Insurance~ ' d I . ,Coun.el re.erve the riqht to withdraw it, atter invI.ti9ation,. they'bllilvl that there is no merit in pursuinq my/our claiM. , I . , . I SHOULD, NO, MONEY DE RECOVeRED DY SUIT OR SETTLEMENT, S~ID ATTORNEYS SHALL HAVE tlO CLAIH ACAINST HE/US FOR SERVICES RENDERED, EXCEPT AS ~CREED UPON IN ~DV~tlCE. I !. ,counsll is not required to take appeals arbitration or tria~ under this aCJreement. , ' either trom. '1 I/WI hereby authorize the said attorneys to pay bills tor' medical and hospital treatment by payment directly to physicians or hospitals concern.d trom 'the proceeds ot any medical insurance benltits received by them. I h.reby acknowledqe that Kreithen, Daron, Villari , ColOMb has undertaken' this representation on a continCJent tee arranqllllent liS .tat.d abov.. As A result, this Hrm is sharlnq in both the risk And recovery reqArllless ot the number at hours invested and has a .,vested interest in thoir work product and the tile ani:! procleds ot this'ca.e. X/We authorize sald attorneys to notity the appropriate insurance carrier at their clailll tor tee and that thl insurance carrier 'shall include them AS payee on any dratt. X/We further understand thllt part ot the tee as set torth above will be paid to reterrlll counsel X/We hereby acknowledge continqent Fee Aqreement. I , receipt or II duplicate copy ot this (!: P.l\[;) ~~-:~,~<<\~ \ . (!:~l\L) \ (!If:^ L) (!:P.~L) .. , ' .. " ~ C") ... C'-' " ~ ~q i:, ':.j <C "\ ..;.~ ) -' ~?' -; ~~ ,-, .' =-:j l;~ " . ~.~ I ::,(4 u.: LJ c- o/ , l.o-- -'~Il .... ,.l.. t:_ l':J ~. l..- e , () K rcithcl1 Baron Vi lIaj; & Golomb: AfTf.WNE1SAf LAw Tt1ntll r'~lorJr J2IJl Chl'stlllll Sln',,1. Phila.. PA Wllli..III!1 ~I;') GH:J.H;JHfi F'ax: 21;; ;;1i;J.IlIWi Marlill K"'illl"1I firm'.. Uaflm .Hit'hard M. (illlolTlh I"',,'r ~1. Villari SWim A. Carp"y *Johll E. Kllstllfl.'iS. .Jr. NidloJ:'L"t P. ~la.'(.VilLlllk Way,,,. A J-:ly ",\i")lJ ''''lllht'r "'\\ ./'"I',..y !I'ir ~ . August I, 1996 All: Prolhonotary Cumberland County Courthouse I Courthouse Square Carlisle. PA 17013-3387 Re: Our File Number: 94388 McGill \'. Burkholder No. 96-..J.e&9- / '" C~ Dear Sir or Madam: Enclosed please find an original and two copies of a Petition for Leave to Settle or Compromise A Minor's Action. Kindly tile the original and return a time stamped copy to me in the self addressed stamped envelope provided. I have enclosed a check in the amount of SSO.SO which I understand is your fee for this service. I f anything further is required, please do not hesitate to contact me. Thank you for your courtesy and assistance. Sincerely. ~~ Richard M. Golomb KREITHEN. BARON. VILLARI & GOLOMB RMG/md Enclosures '1\JY--'-) f-~ (1 ( . -tl..... Lt ~.C ,?-eA..../...Jt:tiA...;f;. 7l Ut~ 07J ~ ([~- ~~tUl~l~: ~ IJL 'l~4J ~A.te d..t~. Ull//- /~X.tLI..I'- (i /{ct p. q- :5 -qro 1 ......~._.. J ....././ ,i:, j ff"tt16tT ;:-r.J XRBITHEN, BARON, VILLARI . GOLOMB BY' RICHARD M. GOLOMB I.D. NO. 4:lU5 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 ATTORNEY FOR PLAINTIFF RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE MCGILL, in her own right COURT OF COMMON PLEAS CUMBERLAND COUNTY v. TRACEY L. BURKHOLDER and RICKY L. BURKHOLDER No . 96 - :J:;U!!l- I C, OJ o R D E R AND NOW, this day of , 1996, upon consideration of the Petition for Leave to Settle or Compromise A Minor's Action, filed , it is ORDERED that Petitioner is authorized to enter into a settlement with Defendants Tracey L. Burkholder and Ricky L. Burkholder in the gross sum of 'l'wenty Thousand ($20,000.00) Dollars. IT IS FURTHER ORDERED and DECREED that the settlement proceeds be distributed as follows: KREITHEN, BARON, VILLARI & GOLOMB For Costs $ 478.34 KREITHEN, BARON, VILLARI & GOLOMB For Counsel Fees $ 5,000.00 TO: Charminie McGill, Parent and Natural Guardian of Ryan McGill, a minor, to be placed in a federally insured savings account or federally insured savings certificate to be marked, "Not to be withdrawn until said minor reaches the age of 18, or upon the Order of A Court of Competent Jurisdiction. TOTAL S14.521.66 $20,000.00 BY THE COURT: J. KRKITHIN, BA~ON, VILLARI . GOLOMB BY I aICHAJU) M. GOLOMB l.t). NO. 43845 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 ATTORNEY POR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE McGILL, in her own right (1 l!" ( , '. . " \ ""C ~ '1 ','I lr;1 ~"'1 t.; I ':1 ((~ ' (.!I /) " -n , " - ~ :~<,t ~:c No 96-1609 ..., td -I i 1 ~ ~~ . '. :.. t .' '" ~ c..) v. TRACEY L. BURKHOLDER and RICKY L. BURKHOLDER PETITION FOR LEAVE TO COMPROMISE MINOR'S ACTION ~O THE HONORABLE, THE JUDGES OF THE SAID COURT: The petition of Ryan McGill a minor by his parent and natural guardian, Charminie McGill and her attorneys, KREITHEN, BARON, VILLARI & GOLOMB respectfully represents: 1. Petitioner is Charminie McGill, parent and natural guardian of Ryan McGill, a minor. 2. The .ninor was born on April 14, 1991, and his social security number is 193-72-4542. 3. The minor resides with Charminie McGill at the following addrp.ss: 407 Roxbury Rd., Newville, PA 17241. 5. The minor's mother is Charminie McGill. who resides at the following address: 407 Roxbury Rd., Newville, PA 17241. 6. The defendants are Tracey L. Burkholder, who resides at 1104 Doubling Gap Road, Newville, PA 17241 and Ricky L. Burkholder who resides at 157 Beetem Hollow Rd., Newville, PA 17241. 7. On May 11, 1994, the minor sustained the following injuries: right tibia, right radius, right ulna, right eye and right portion of his face when he was a pedestrian struck by a motor vehicle or;>erated by Defendant Tracey L. Burkholder and owned by Defendant Ricky L. Burkholder. 8. Attached is a statement, under oath, of the minor's parents and/or guardian and/or guardian ad litem certifying the physical and/or mental condition of the minor, as well as her approval of the proposed settlement and distribution. 9. The following settlement has been proposed: . The gross amount of $20,000.00 negotiated with Erie Insurance Company, since this represents the total amount of available coverage. 10. Counsel is of the professional opinion that the proposed settlement is fair and reasonable and that it adequately compensates for the injuries sustained, and expenses incurred, and he does further approve the proposed distribution contained in the form of Order attached hereto. 11. Counsel was retained upon a contingent fee basis of 33 and 1/3\ plus costs. A copy of the retainer agreement is attached. 12. Counsel requests a fee in the sum of $5,000.00 which represents 25% of the settlement payable to the minor. 13. The Department of Public Welfare, or any other entity, Does Not, have a claim or lien against the plaintiffs. 14. Counsel has not and will not receive collateral payments as counsel fees for representation involving the same matter from third parties. A F F I D A V I T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF PHILADELPHIA: Charminie McGill, being duly sworn according to law, depose and say that she, is the Parent and Natural Guardian of Ryan McGill a minor, age 5, and that she, has reviewed the proposed settlement of Ryan McGill, accident case and request Court Approval for same b~C~USA "he c=~3ide~.~ it fair and reasonable and adequate compensation for the injuries sustained and expense~ incurred by Ryan McGill. Charminie McGill, further states that Ryan McGill in her opinion, has made as full a recovery as is possible trom the injuries sustained in this accident. ~ . 1,;.L; CHARMINIE Mc~t " . n.r: 1\\"III:;t::~\I"II'I' I'Clwr.n Of' lI'I"I'OnNr.V ., '. . '.'. ., , ' DIITE: ::' .i '." . . . I '. . ,I ' '.. . I ' '. 'f :iVwe, ~he lu~d8l"silJned, do appoint ilRll; IIp.I' . ;/)flJwy V,-'/lAP " , the lllw tit'm ot Kreithen, Daron, VillArrT'C'OUlmt) to, Lnstl.tute anti . m^ Int'a.!:n an Action AgaInst any person or tirlll or corporatIon whO m^y be, responsible tor Illy/our claim tor dAmat,Jes; sustA'ined, on " 'l"~' '(;.,,10 fYJ b " or to e !tect an amicable uttlement. I : ii, .' . '. I/We agree that out ot whatever sum is ucured by Ifty/our \tt~rn.ys or by me/us trom the above responsible partias, ei~h,~ by~. W^y ot'lsettlelftent or verdict, I:he attorney 6ha11 re':ldn -:t~ L ';J pllrcent at the 9ross. recovery "nd In additlon thereto, 'the upenulI .ot, :suit, ,prltrhl dlllcovery, investigation, Iftldical expert' eValuation(~) and reports, and the tees and expenses at witnesses, and other expenses pald In hand~lnq the tlle, it "ny, shall then be relmbursed to the said,attorneys, I ,I,'. , ~ A.11 Iftedical bills incurred as a result ot the .accident/incident, whether expended by counsel on behalf ot Ifte/us or not, shall be charl)eabla to Ifty/our share, exclusively, it not rreviously pald by inllurance', ' , ' !I ': ' . .counsel reserve the right to withdraw it, atter investigation., they believe that there is no merit in pursuinq my/our claim, . I' . . ,; . ISHOULD, NO, MONtV DE RECOVERED DV SUIT OR SETTLEMENT, SAID ATTORNEVS SHALL IIAVE NO CLAIH ACIlItlST HE/US FOR SERVICES RENDERED, EXCEPT AS IICREED UrON IN /lDVIINCE. .' . , " l' ,counsel is not required to take arbitration or tria~ under this agreement. , ' t rom . appeals either '1 I/We hereby authorlu the said attorneys to pay bllls tor' Iftedical and hospital treatment by payment directly to physicians or hospitals concerned trom 'the proceeds of any medical insurance benetits received by them. I hereby acknowledl)e that Kreithen, Daron, VJ.llari , Cololftb has undertaken' this representation on a contingent tee arr-angelfte'nt as stated above, lis a rellult, thill tirm ill sharint} 111 both the' risk and recovery reqftrdless ot the number ot hours invested and has a. vested interest In their work product Ilnd the rile and proceeds ot this' case. I/We authorize sllid attorneys to notity the appropriate insurance carrier ot their claim tor ree and that the insurance carrier 'shall include them as payee on any dratt. i/We further understand that part ot the tee lIS set forth above will be paid to reterral counsel , . I/We hereby acknowLedve continqent Fee ~I)reelftent. I , I , receLpt or II dupliCAte copy ot this (!:P.H) ~~-:9.. ~ 1i\~ (!leAL) ... (!leAL) (!:F.IIL) " " . . . ' .. " I j l00fi tr ttP-i\lTllt:N, BAllON. VILLJ>JlI " OOLOMB 9'i I P-ICaJJl.D M. 001001'19 I.t). NO. 4'180\5 10'1'\\ FLOOR 1201 CWa:S'tNtl't STREET P\\I~ELP\\IA, PA. 19107 enS) S63-8286 t.'t'tOtlNt:'i rOR ?Lt.IN'tlff COURT OF COMMON PLEAS CUMBERLAND CouNT'! R'iAN McGILL, a minor, bY and through hiS parent and natural guardian. c~INIE McGILL and C~INIE McGILL, in her own right NO. 96 .Cg.c:> I ~O4' v. T\U'.CE'! L. BUiU<l\OLDER and RICK'! L. BURKHOLDER ~tln!:1L >NO NOW. ,h" day 0' ' ,,". upoo coo.'d.ra"oo 0' ,h. ,.,,"00 for caav. ,0 s.,". or co.pro"'. · Mioor" .c"on ,n.d . " ,. 0'0,"0'''' ,."tioo.r ,. au,,,,,r,,,d '0' .o,.r '0'0 a.."'.'." w"h D.,.ndao'. ""c.y 1" EUr.",,'der and "c<1 L. Eur.""".r ,c ,h. ,ro.. .um of "".o'y ThOUsand ($20,000.00) Dollars. '" " FUR"'" O'DE,.D aod DEC,EED ,ha' ,h. ..",...0' proceeds be distributed as follows: KREI't\\EN, BARON, VILt.ARI Ii< GOLOMB For costS I(REI't\\EN, BARON, VILt.ARI Ii< GOLOMB For counsel Fees 'to: Charminie McGill, parent and Natural Guardian of Ryan McGill. a minor. to be placed in a federallY insured savings account or federallY inSured savings certificate to be marked, "Not to be withdrawn until said minor reaches the age of 18. or upon the order of ~ court of competent Jurisdiction. ToTAL $ 478.34 $ s,ooo.oo ~y~.S21..~ $20,000.00 BY 'tHE COUR't: J. -' KRBITHEN, BARON, VILLARI . GOLOMB BYI RICHARD M. GOLOMB I.D. NO. 42845 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 ATTORNEY FOR PLAINTIFF RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE McGILL, in her own right COURT OF COMMON PLEAS CUMBERLAND COUNTY v. (") .., ("'! c~ C"'l ., ; 'n , ""t'", '1 ,"' ~.J (I.~ L: . '" r!.~. , I ' ~ 1 , ....J ~!: Ui c'i lq ~~ ~. -1 " ,1 .' ; 1~1 r>'. (- -'" CoO ) ."(" ~. rn No 96-1609 ~.( ;.? ~-1 -, N ~ ...,. -.: ,r.- TRACEY L. BURKHOLDER and RICKY L. BURKHOLDER PETITION FOR LEAVE TO COMPROMISE MINOR'S ACTION ~O THE HONORABLE, THE JUDGES OF THE SAID COURT: The petition of Ryan McGill a minor by his parent and natural guardian, Charminie McGill and her attorneys, KREITHEN, BARON, VILLARI & GOLOMB respectfully represents: 1. petitioner is Charminie McGill, parent and natural guardian of Ryan McGill, a minor. 2. The minor was born on April 14, 1991, and his social security number is 193-72-4542. 3. The minor resides with Charminie McGill at the following address: 407 Roxbury Rd., Newville, PA 17241. 5. The minor's mother is Charminie McGill, who resides at the following address: 407 Roxbury Rd., Newville, PA 17241. 6. The defendants ar.e Tracey L. Burkholder, who resides at 1104 Doubling Gap Road, Newville, PA 17241 and Ricky L. Burkholder who resides at 157 Beetem Hollow Rd., Newville, PA 17241. 7. On May 11,1994, the minor sustained the following injuries: right tibia, right radius, right ulna, right eye and right portion of his face when he was a pedestrian struck by a motor vehicle operated by Defendant Tracey L. Burkholder and owned by Defendant Ricky L. Burkholder. 8. Attached is a statement, under oath, of the minor's parents and/or guardian and/or guardian ad litem certifying the physical and/or mental condition of the minor, as well as her approval of the proposed settlement and distribution. 9. The following settlement has been proposed: The gross amount of $20,000.00 negotiated with Erie Insurance Company, since this represents the total amount of available coverage. 10. Counsel is of the professional opinion that the proposed settlement is fair and reasonable and that it adequately compensates for the injuries sustained, and expenses incurred, and he does further approve the proposed distribution contained in the form of Order attached hereto. 11. CCI.unsel was retained upon a contingent fee basis of 33 and 1/3% plus costs. A copy of the retainer agreement is attached. 12. Counsel requests a fee in the sum of $5,000.00 which represents 25% of the settlement payable to the minor. 13. The Department of Public Welfare, or any other entity, Does Not, have a claim or lien against the plaintiffs. 14. Counsel has not and will not receive collateral payments as counsel fees for representation involving the same matter from third parties. A r rID A V I T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF PHILADELPHIA: Charminie McGill, being duly sworn according to law, depose and say that she, is the Parent and Natural Guardian of Ryan McGill a minor, age 5, and that she, has reviewed the proposp.d settlement of Ryan McGill, accident case and request Court Approval for same bp.c~us~ ~he =O~3:de~~ it fair and reasonable and adequate compensation for the injuries sust.ained and expense;J incurred by Ryan McGill. Charminie McGill, further states that Ryan McGill in her opinion, has made as full a recovery as is possible trom the injuries sustained in this accident. ~ . ~~; HARMINIE MC~ -. 1'1:."; 1\\.o\lt;I:;~"~II'L' fPWf.1l of' J\,,""l1IlNf.'l DATe: - .\ , I '~I ,. i ,1/We, the undarsiqned, do appoint the lav tirm at Krlithen, Daron, ViLlar ~ Co m to lnst1tutl mil LnO!:n an actLon aga Lnst any parson or Urm or c~rporation whO mllY be . responsible tor my/our claim tor damages: sustA'1nad, on " .1..1, '?::" I~ "" b " or to at tlct an amicable s.ttLement. ' , :' I' . . I/We agrae that out ot whatever lIum is secured by ",y/our \tt~rn.YII or hy me/us trom the above rellponsibl. parti.s, .ithe~ by., \lPlY oe :,s.t.t.le",.nt. or v.rdict, \:ohe att.or".y .haU r.o:ain .~~ '['=f p.rcent. ot t.he 9rosll' recovery and in addit.ion t.h.r.to,th. expenses ,ot, ,suit., . prlt.rial d1scovery, inv.st.igation, ",.dical Illpert.' IvaLuation(k) and r.port.s, and the tees and expenses ot witn.s...' and ot.her expens.. paid 1n hand~lnq the tile, it any, shall t.hen be reimbursed t.o the said,att.orneys. I .:.:. ,!All ",edical bills incurred all a re.ult. oe ,Accident/incident., whathar expended by coun.el on b.halt or or not., . .hall he charqeable t.o ",y/our share, ellclu.ively, rrev10UsLy paid hy in.urance'. . . ' !I " . . .counsel res.rve the right to vithdrav it, att.r invIstigation,. t.heybelieve that there is no m.rit in pursuinq Illy/our clai.. . I' . " , \SHOULD NO, MONEY Of: RECOVERED OY SUIT OR St'M'LEHENT, SUD ATTORNEYS SH"LL IlAVE NO CLAIM J\cAlNST HE/US FOn SEl\VICES l\ENDERED, EXCEPT AS ACREED UPON IN J\DVANCE. . , . ' t.he ",./u. i r not. . . , t' !' ,counsel is not required to talte appeals arbit.ration or tria~ under t.his aqreement.. , ' either fro.. '1 I/WI hereby euthoriu the said attorneys to pay bills fol" ",.dieel and hospital treatment by payment. directly to physician. or hospit.al' concern.d tram the proceedS of any medical insurance blnefits receiv.d by them. 1 hereby acltnowlecllJe that Kreithan, Daron, Villari , coloab has undert.aken' t.his representat.ion on a contingent t.. arrang..int .. ..."....,. "hnve. AS a result., t.his tirm ill .harin/] in both the' . n. C; j\l" 1\ t.: L:;tll~11'L' rcwr.n Of' A""l'OONf.V . DATE: . I " , ! ' , I " i')we. the iundersltJned, do appoint ilPIf1, rhp.l' :()fl/lAf'( [/,'/ lAP " the law Him of Krel.then, Daron, Villa~bmti to, .I.nstitute anII mAl.nt'a.1:n an action against any person or Urlll, or, corporation whO "'flY b!r responsible for my/our claim for dalllalJes. sustdned, on,' .",1, '~) 10",,1> " or to etfect an amicable slttllmlnt. I ' ; I , , 'I/We aqree that out. or whatever IIU'" is secured by my/our \t.tl'rneys or by me/uII tro", the above responsible parties, eL~h,~ by VPlY of :,settle",ent or verdict, \:he attor.,ey 6hall reo:ain ~~ L ~ percent of the qross.recovery and in addition thereto, the exp.n... ,or. :suit, ,pretrial discovery, invest1c.lation, ",edical. expert' Ivaluation(~) and rlports, and the fees and expense. or witnes.es, and other expensee paid in hand\intJ the rill, if any, shall. then be relmbursed to the said,attorneys. I .:.:. , ~ 1011. medical. h111s incurred as a resul.t or ./lccldent/incident, wheth.r el(pended by counsel on blhalr or or not., ahal.l be chartJ6abl.e to my/our share,excluaivel.y, previousl.y pald by lnsurance~ . : I " . ,Counsel. reserve the riqht to wit.hdraw if, after investiqation,. t.hey'believe that there is no merit in pursuinq my/our claim. . I' . .' . I SHOULD , NO, MONtV DE RECOVERED DV SUIT OR SETTLEMENT, S^ID ATTORNEVS SHALL "AVE NO CUlM ^CAlNST ME/US rOR SERVICES RENDERED, EXCEPT ^S ^CREED UPON IN ADV^tlCE. . ,.'. , ' :1 o ; , the lIIe/us if not . , " 0 .counsei is not required to take appeals arbitration or tria~ under this aqreement. I ' eithlr troni. ., I/We hereby authorlu the said attorneys to pay bil.ls for' medical and hospital treatment by payment directly to physicians or hospitals concerned from the proceeds of any medical. insurance benefits received by them. I hereby acknowledtJe that Kreithen, Daron, Villari , colomb has undertaken' this representation on a continqent tee arranqe",e'nt as statod above. ^a a result, this flrm is sharinq in both the' risk and recovery reqPlrdlell1l of the number at hours invested and has a, vested interest in tholr work product and the file ani! proceedS of this' case. I/We authorize said attorneys to notify the eppropriate insurance carrier of their claim for tee and that thl insurance carrier 'shall include them as payee on any draft. i/we furthar understand that part of the fee as set torth above will be paid to reterral counsel .. X/We hereby acknowledCJe contingent ree Aqreament. I , receipt at II dupl.1cate copy ot this ~~~9.. ~ 1"Y\-~ . , (Sr.A!';) (!leAL) \ (!leAL) (SP-AL) t. . " t 0' . JtJlIITHZN, BAllON. VI LLAJlI " GOLOMB BY. RICHAJlD M. GOLOMB 1.0. NO. 42845 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 ATTORNBY FOR PLAINTIF' RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE McGILL, in her own ~ight COURT OF COMMON PLEAS CUMBERLAND COUNTY v. TRACEY L. BURKHOLDER and RICKY L. BURKHOLDER No. 96-160' PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the Verification bearing the signature of Richard M. Golomb, Esquire attached to the Civil Action Complaint which was filed on March 25, 1996 with the attached Verifications bearing the signature of plaintiff. Charminine McGill, individually and as parent an natural guardian of Ryan McGill a minor in the above matter. KREITHEN, BARON, VILLARI & GOLOMB ~~ By: - RICHARD M. GOLOMB, ESQUIRE Attorney for Plaintiffs . VERIPICATION RYAN McGILL, a minor, hereby states that he is the Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. -p CL;' if) , Y- L CHAR IE McGILL, as parent and natural guardian of RYAN McGill, a minor Date: 5 {~-9(O ~ L." ,;- c.:. . ,~ i-': ., ..'~ C', ~J~. ~~.' .- , :. .:.... ..' .. 1 . I:' :- ( 0 , , / ...., :.; If' . ' i~d ...... F - , -,.; l' L<, ,., J 0 r.--. .;,; . .,;..", The Trooper then approached the vehicle. ~. at p.2. The Trooper positioned his car in front of the Defendant's vehicle, blocking the Defendant's vehicle, and activated his emergency lights. ~. at p.2 and p.9. The Trooper exited his vehicle and approached the Defendant. ~. at p. 2. The Trooper asked the Defendant if he required assistance. ~. at p.2. The Defendant stated that he did not. ~. The Trooper allegedly detected the odor of alcohol and asked the Defendant if he had been drinking. ~. Defendant responded that he had consumed a number of beers earlier in the day. ~. The Trooper then requested that the Defendant exit his car and administered a field sobriety test. ~. at p.3. The Trooper alleges that the Defendant failed to perform adequately on the field sobriety test. ~. at p.4. At that point, the Trooper took the Defendant into custody and took him into Carlisle hospital for a blood alcohol content test. ~. at p.5. The Defendant's blood alcohol content was found to be above the legal limit. ~. at p.7. During the preliminary hearing, the Trooper testified that "it is typical that any vehicle in a position I think might be strange, I'd approach it." 1.!;i. at p.10. The Trooper further stated that when he observed a woman passenger exit from the vehicle, "that heightened [his] curiosity to investigate." ,Ig. However, the Trooper also admitted that the woman's exit from the car did not point to any specific criminal activity, nor was her manner in any way unusual. rg. at p.10. In fact, the car was lawfully parked to 2 . allow the Defendant and his passenger, who did not have sufficient funds to pay the toll, to make arrangements to pay the required toll by mail. ~. at p.12. DISCUSSION, Encounters between the public and police officers that do not involve formal arrests can be categorized as "mere encounters," "non-custodial detention," and "custodial detention." Commonwealth v. Peters, 642 A.2d 1126 (Pa.Super. 1994); Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d. 1323 (1988). In this case, we are faced with a non-custodial detention which gives rise to Fourth Amendment protection. The Supreme Court has held that the police can be said to have "seized" an individual when an officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Peters, 642 A.2d 1126 (Pa.Super. 1994). A "non-custodial stop" occurs only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Michiqan v. Chestnut, 486 U.S. 567, 108 S. Ct. 1975 (1988). If a stop is deemed an investigatory stop, the officer may only justify said stop if he or she is able to point to specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant the intrusion. Commonwealth v. Fassett, 496 Pa. 529, 437 A.2d. 1166 (1~8l) citinq Terrv v. Ohio, 3 392 U.S. 1 (1968). An officer must observe irregular behavior before he initiates a stop, and concurrently with his observation, he must hold a belief that the suspect is engaged in criminal activity. l.d. In this case, the stop by the Trooper must be considered a non-custodial detention subject to Fourth Amendment protection. Therefore, given the absenc~ of any articulable belief that the Defendant was involved in a criminal activity, the stop was illegal, and all evidence gained from that stop must be suppressed. A. The oriainal Annroach Bv The Officer Was A Non- Custodial Detention Sub1ect To Fourth Amendment Protections Clearly, the Defendant was subject to a non-custodial detention by Trooper Aber. As noted above, the Trooper observed Mr. Lane sitting in his automobile with the motor running and the lights on. During the preliminary hearing, the Trooper testified that "It is typical that any vehicle in a position I think might be strange, I'd approach it." Further, the Trooper stated that, upon observing the female passenger exit from the vehicle and make her way towards the toll booth, that this action "heightened [his] curiosity to investigate." On cross-examination, the Trooper testified that although the female passenger did not lo~k to be in distress, "the thought did cross [the Trooper's] mind that perhaps she was involved in some sort of spat or fight." Clearly, this testimony shows that the 4 officer was curious as to the vehicle and that his curiosity caused him to investigate. Upon approaching the vehicle, the officer testified that he "pulled in front of the Plymouth and approached the driver of the vehicle." Further, the officer testified that, while he does not remember specifically, he most likely had activated his emergency lights at that point. Specifically, the officer testified in response to the question of whether he had activated his lights by stating "I don't recall. I am sure that I did." Such actions clearly constitute an investigatory stop because no reasonable person would believe that they could leave the scene after a police officer in a marked vehicle pulls in front of their automobile, blocking their path, and activates his emergency lights. Specifically, 75 Pa. C.S.A. g3733 makes it a crime to flee or attempt to elude a police officer. Subsection (a) of g3733 defines the offense as any driver of a motor vehicle who wilfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing police officer, when given visual or audio signal to bring the vehicle to a stop. Section 3733 (b) defines (a) "signal by police officer" as the signal given by the police officer by hand, voice, emergency lights or siren. Clearly, when the officer activated his emergency lights, a reasonable person in the position of the Defendant would not feel free to drive away. 75 Pa. C.S.A. g3733 specifically states that it is an offense for a motor vehicle to leave when 5 signaled by the emergency lights to stop. ~ Michiqan v. Chl"!stnut, 486 U.S. 567, lOB S.Ct. 1975 (1908) (holding that Police conduct did not rise to "seizure" in part because the "record does not l,'eflect that the Police activated a siren or flashers.) (emphasis added). Additionally, the officer in question parked his vehicle in front of the Defendant's vehicle. In Michiqan v. Chestnut, 486 U.S. 567, 108 S.Ct. 1975 (1988), the court explained that a seizure may occur where a police officer operates a car "in an aggressive manner to block [the Defendant's] course or otherwise control the direction or speed of his movements." Further, in Commonwealth v. Brown, the court stated that it "recognizes that under some circumstances the use of a police vehicle will have a restraining effect on a member of the public." 565 A.2d 177, 180 (Pa. Super. 1989). Additionally, in Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978), a Defendant abandoned a bag of marijuana after a police car drove into a parking lot and pulled directly in front of the Defendant's Ford Mustang. In a suppression hearing, the Court found that the officer had positioned his car in such a way as to block the Defendant from exiting. On appeal, the Pennsylvania Supreme Court affirmed the decision to suppress the marijuana. ~ United States v. Kerr, 817 F.2d 1384 (9th Cir. 1987) (forcible stop occurred where police car pulled behind Defendant who was backing out of a one-lane dirt driveway). Therefore, the positioning of the officer's vehicle in front of the Defendant's vehicle would 6 also relay the message that the Defendant was not able to remove himself from the encounter. Given the above, it is clear that a reasonable person in the Defendant's position would not feel free to leave the scene. The officer pulled in front of the Defendant, blocking his car. The officer activated his emergency lights, which, pursuant to 75 Pa. C.S.A. g3733, would have made it a crime for the Defendant to leave the scene. Therefore, the stop in question clearly was a non- custodial detention which is subject to the protection of the Fourth Amendment. B. or:: Ston Of Defendant' s Vehicle Was Unlawful Because T Officer Lacked Reasonable And Articulable susoicion That Criminal Activitv ~.s Underway. Given that the stop by Trooper Aber was a seizure, in order for the stop to be lawful, the officer must point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably indicate that criminal activity may be afoot. Terrv v. Ohio, 392 U.S. 1, 34, 88 F. Ct. 1868, 1886 (1968). In this case, the officer has no reasonable justification for stopping the Defendant's vehicle. The officer himself states that he was simply "curious" as to the status of the vehicle and decided to "investigate." The vehicle was parked legally and was not posing any threat to the passing traffic. While the officer did observe a person exiting the car, nothing in the passenger's appearance gave any indication 7 of any specific crime or any specific need for the officer to approach. From a review of the record, there are no indications of any evidence that a crime was underway and, in fact, the Defendant was lawfully and safely parked for a legitimate purpose. The Officer does state that he considered the possibility that the car was having mechanical difficulties or was in some manner of distress. The Commonwealth may argue that the Trooper approached simply to offer assistance, making his approach a mere encounter not subject to fourth amendment protections. However, the Officer testified that the car was running, the headlights were activated and there were no signs of any mechanical difficulty. Further, the Officer testified that a passenger had exited the car and was making her way towards the toll booths and the Officer. If the Officer was solely concerned that the car and its occupants needed assistance, it would seem logical to simply allow the approaching passenger to make her way to the toll booths and question her concerning the car's status. However, the Officer was apparently considering the possibility that a crime was underway when he choose to approach the vehicle itself. This conclusion is bolstered by the Officer's own statements. The Officer testified that he was "curious" and decided to "investigate". Further, he stated that upon observing the passenger exit the vehicle, "the thought did cross [his] mind that perhaps [the passenger] was involved in some sort of spat or fight. " 8 This testimony evidences the Officer's intent, not to simply approach and offer assistance, but to place himself in a position to investigate the car and its driver for possible, but unspecified, criminal activity. In conclusion, nothing in the record demonstrates any grounds for the Officer to approach and stop the Defendant. Neither the position of the car nor the actions of the driver or the passenger could give the Officer a reasonable suspicion that a crime was underway. The Officer was, in his own words, "curious" concerning the car and approached to "investigate." Therefore, the Officer lacked the necessary reasonable and articulable suspicion necessary to justify his detention of the Defendant. CONCLUSION a It is clear from the officer's conduct that he did approach and seize the Defendant. If a reasonable person in the Defendant's position would feel that he was restrained from leaving, the stop is not a "mere encounter" but is a "seizure". In this case, the officer pulled his car in front of the Defendant's vehicle, blocking his path, and activated his emergency lights. The Vehicle Code specifically states that upon activation of a police vehicle's emergency lights, a vehicle may not attempt to leave under penalty of law. Therefore, the blocking of the vehicle's path and the activation of the emergency lights would reasonably lead the Defendant to believe that he was detained, the Defendant submitted 9 . , U I COMMoNWBALTll v. DANIZL LANB DOC~BT NOI CR_0000022-96 ."L1H''''' ....,.. .....C.,.. ..oM ....,.. OH ...'L 25. ,.., DISTRICT JUSTICE RONALD E. ~LAIR ,"cope" ,t wa. appro'l.ate'Y '" 12 hour> when , wae checking interchange. I observed a dark in color Plymouth coupe sitting off to the right - just through the interchange of the one lane. I spoke with the toll collector in the lane that I was in to ask him if he knew whether there was a problem with the vehicle that I observed and he told me that he didn't know. 0' When dld you f'rst observe thl' dark co'ored "yenuth' Trooper: It was approximatelY 21~12 hours. 9:12 p.m. Q: Where was it? TrCOper, ,t wae s'tt'ng off to the rlght of the interchange. ,t would have been on the exiting side of the interchange. 0' ,hat wou'd have been after you a'readY pa'd your money1 Trooper: I go Q: I mean general public. After you've paid heading off the turnpike? 0' Okey. oid yOU inve.t,g.te why the veh'C'e wae parked on the side of the road? TrOOper: That'S correct. TrOOper' ,did. ,t ,. typ'ca' that any vehic,e 'n a po.ition , think might be strange, I'd approach it. That was my inten.tion. I did observe a woman exit from the passenger side of the vehicle and make her direction towards the toll booth so that heightened my curiositY to investigate. Q: Then you went over a~d investigated? E](HIBn , t\ '. Trooper: I did. I pulled in front of the Plymouth and approached the driver of the vehicle. 0: Who was driving the vehicle? Trooper: Mr. Daniel Lane and his address is 519 Good Hope Road, Mechanicsburg, PA 17055 and as I approached the Plymouth my purpose ',o/as ~a provide '1ssistancl"! if he was broken down or whatever the case might be, If he was a distressed motorist I would provide a motorist assist 0: Do you see Mr. Lane in the courtroom today? Trooper: I do. He's sitting at defendant's table, blue suit, stripped shirt. 0: When you first approached the vehicle it was stopped, is that correct? Trooper: Yes it was. Mr. Lane was the driver of the vehicle. It was running - the engine was running, the car was on. He had his hands on the steering wheel and was the driver of the vehicle. Q: Were the light on in the car? Trooper: Yes they were. Q: What did you observe when you first starting speaking with Mr. Lane? Trooper: I first asked him if there was a problem and when he responded to me I detected a strong odor of alcoholic beverage emitting from his breath and that of the vehicle and I did ask him if he had been drinking and he told me that earlier in the evening he had attended a Pittsburgh Steeler playoff game in Pittsburgh. Q: Did he tell you he had been drinking? Trooper: Yes he did. He told me he had consumed approximately ten beers at the Steeler game. Q: And as a result of that what did you do next? Trooper: At that point I proceeded back to the toll booth to call for a backup patrol. Went back to Mr. Lane. I 2 '. ' determined that he was in actual physical control of the Pl ymouth and I asked him if he had driven to I -17. Gettysburg interchange from Pittsburgh and he responded he did. I asked him to step from his vehicle so that he could perform two field sobriety tests. The one leg stand and walk and turn and prior to his performing both tests I did ask him if he had any physical challenges or disabilities for injuries that ',%uld prevent him from performing the tests and to that he re~ponded no. 0: Well now back up for a minute. Are you certified to administer the field sobriety tests? Trooper: Yes I am. 0: When were you certified? Trooper: It's part of our curriculum of the Pennsylvania State police Academy. 0: When did you graduate from the Academy? Trooper: I graduated August 25, 1995 from the Pennsylvania State Policy Academy, Hershey, PA, 0: So, it would be safe to say then that you've been certified within the past year? Trooper: Yes sir. We don't anything like that. since I did graduate possess a certification card or It's just part of our curriculum it qualifies. 0: How did Mr. Lane perform on the field sobriety tests? Trooper: Mr. Lane performed poorly. On the one leg stand he was instructed to hold his foot six inches off the ground and I did give him the opportunity to chose which leg he would stand on, which leg he would raise. He was unable to keep his foot six inches off the ground as was instructed and was also unable to hold his leg in the air six inches for a count of 30 seconds and he did drop his foot to the ground on the third count. 0: On the second test what did he do? Trooper: On the walking turn test he was unable to take heel to toe steps as he was instructed and on the first nine steps I instructed him to pivot on the last foot that he 3 , . Trooper: I determined that Mr. Lane was under the influence of alcohol to the extent which rendered him incapable of safe driving. 0: Now, what did you do next? Trooper: I did take him into custody and transported him to Carlisle Hospital for the purpose Df r~ceiYing blood from Mr. Lane to determine the blood alcohol content. 0: Okay. Was Mr. Lane cooperative at this time? Trooper: Yes. Throughout the entire evening Mr. Lane was very cooperative. 0: Okay and when you arrived at the Carlisle Hospital, did you inform Mr. Lane of the implied consent law? Trooper: I did. That was by consent read to Lane at 2: 10 hours at the hospital and Mr. Lane acknowledge the implied consent and he said that he absolutely no problem whatsoever in donating blood. was very cooperative. Mr. did had He 0: Okay. Did you observe Mr. Lane's blood being drawn? Trooper: I did observe it. It was drawn by Karen Bow, Medical Technician at the Carlisle Hospital. 0: Okay. What time was that sample taken? That was at 10:15. 22:15 hours that same night. implied consent was 22:10 and 22:15 was the time of test. The the Trooper: 0: Okay. What did you do with the blood after the test? Trooper: The blood was eventually transported to the Pennsylvania State Policy Headquarters, particularly the Crime Laboratory located at 1800 Elmerton Avenue, Harrisburg, PA. 0: Okay. that please? I need to back up for one minute. You mentioned who was the lab technician that drew blood, Trooper: It was Karen Bow. 5 -, . . Q: What does it say? TJM: Objection Your Honor. Lack of foundation. I think that there's a mat~rial element of the foundation missing for the result of the lab test to be introduced. I don't have a problem with the l!sp Crime Lab is an approved testing station but I think there is still something missing f0r the foundation here, Trooper: Mr. Wagner is an employee of the Pennsylvania State Police, TJM: I'm not questioning that. Q: Tell the Court please what that document is. Trooper: The document is a report and it was written by Mr. Wagner. Q: Whose signature is on the bottom of the document? Trooper: Jeffrey wagner. Q: Okay, what are the results? TJM: Same objection Your Honor. Q: Your Honor, I would argue that the foundation at this level of the preliminary hearing has been laid out. We can go back and lay it again if -- TJM: This is the level of the preliminary hearing that the foundation has to be laid properly and it hasn't been laid yet. There's still something missing. I'm not going to tell the prosecution what it is because it is their burden to sustain that foundation and build that foundation and I would object to the introduction of the results of that test until the foundation has been properly made. Judge: I agree with you but we have been instructed by a President Judge Overruled. Q: What are the results, please? Trooper: They're .19 percent. 7 Q: Your Honor, I move for admission of that document into evidence. I have no further questions. Judge: Cross. T~: Is this the report you are testifying from? ~rooper: This :s ~he original with xerox ~opies of the PC affidavit in criminal complaint, T~: Thank you. Trooper: There's a few other documents in there. If you have a question I'll be more than happy to answer it. T~: Trooper, Mr. Lane didn't tell you that he had drive the whole way from Pittsburgh did he? Trooper: That night Mr. Lane indicated to me that he did. At a later date he told me that he and his wife had shared the driving. T~: Did he tell you at some point that his wife had driven the first leg of the journey and that he had actually slept in the vehicle? Trooper: He told me that. Not that evening but at another time. T~: Did you talk to the wife? Trooper: I did speak with Mrs. Lane. T~: Did she verify that -- Trooper: She did. T~: That she had actually driven most of the way from Pittsburgh? Trooper: No. She told me that she had driven part of the way from Pittsburgh to well, to Exit 17. TJM: Now you said that you noticed the vehicle parked. It had already gone through the toll booth, correct? Trooper: That's correct. 8 TJM: And it was off to the right hand aide which is the correct aide it should have been, correct? Trooper: Yes. TJM: It was facing traffic? Trooper: Well. it was ~,cing ~he 0nlv direction it r.ould have gone without -- TJM: It wasn't damaged in any physical way? It didn't appear to be in any accident, did it? Trooper: Not that I could tell. TJM: The reason you approached it was that you wanted to see whether or not you could render assistance, correct? Trooper: That's what I testified to. TJM: And you put your lights on actually before you approached it, didn't you? Trooper: I don't recall. I'm sure that I did. I don't recall, however. I don't believe that's relevant. TJM: You're not sure if you turned your light on? Trooper: I don't recall. TJM: The car was safely parked off the side of the road, correct? It didn't have any part of the car on the lane of travel? Trooper: No, it did not. TJM: And you observed a female occupant exit the vehicle and go in the direction of the toll buoth? Trooper: That's correct, I did. TJM: And yet you testified in your direct examination that that heightened your curiosity? Trooper: It did. TJM: Was she running hysterically or was she frantic in her movement? 9 Trooper: No. TJM: She was just walking in a normal fashion? Trooper: Exactly. TJM: So, for all you knew she could have been asking for 'iirections? Trooper: Could have. That's why I chose to investigate. TJM: There was nothing about her actions that were or you know, what's the word, nothing made it appear that she was in distress or being hurt in any way or anything like that, correct? Trooper: No, not really, although the thought did cross my mind that perhaps she was involved in some sort of spat or fight. TJM: The thought crossed your mind but there was nothing from her physical movement that would suggest that, is that correct? Trooper: No, it was on my mind as a possibility. TJM: No, that's not correct or yes there was nothing in her movement -- Trooper: Her motion - it wasn't hostile in any way as though she was fleeing from someone. TJM: Thank you. So you approached the vehicle to see if you could render assistance and you smelled the odor of alcohol? Trooper: Yes, sir. TJM: And at that point you asked Mr. Lane if he'd exit the vehicle and submit to field sobriety tests? Trooper: No, I asked Mr. Lane if he had been drinking, TJM: And he said that -- Trooper: That he had been drinking. He had consumed approximately ten beers at the Steeler game. 10 " TJM: He told you that those beers were consumed before he left Pittsburgh, is that correct? Trooper: Yes, he did tell me that. TJM: We ask the Court to take additional notice that Pittsburgh is some 350 miles west of here. Judge: Noted. TJM: Then you went and you called for backup? Trooper: Yes I did. TJM: What was the purpose in calling for backup? Trooper: Procedure. I don't want to is a patrol close by and if to be there. It's not possibility. be by myself there if there he's available I'd like him necessary but it was a TJM: So you were anticipating arrest at this point? Trooper: I was. TJM: And then when you asked Mr. Lane to exit the the field sobriety tests, at that point you that he had some suspicion of driving influence, correct? vehicle for had decided under the Trooper: That's co~rect. TJM: And it was your intention to hold him and get him to submit to the tests or take him in and art'est him, correct? Trooper: My goal was to determine from the field sobriety tests to which degree he might be intoxicated. TJM: When you asked him to exit the vehicle and submit to the field sobriety tests, he wasn't at that point, was he? Trooper: No he was not. TJM: Now, if he refused to take them you were going to arrest him, is that correct? 11 . " Trooper: Yes I would have. TJM: Now, you actually didn't see Mr. Lane operate the vehicle, did you? Trooper: No sir, I did not. '7JM: At I-~,", ... i.me vou saw the ~3r. l...,hen ~lljU first saw the car, it was already parked? Trooper: That's correct. TJM: And Mr. Lane never moved the vehicle while you were observing it? Trooper: That's correct. TJM: And the car was in park was it not? Or don't you know? Trooper: I don't know. TJM: You said the engine was running and he was behind the wheel. His hands were on the wheel I think was your testimony but the car never moved in your sight? Trooper: No it didn't. TJM: And, I know we have a toll booth operator here who can establish that point. At the time you asked Mr. Lane to exit the vehicle you had not spoken with the toll booth operator as to whether or not he had observed Mr. Lane operate that vehicle, had you? Trooper: No I didn't. TJM: You didn't learn that until later that someone else had seen him driving the car, correct? Trooper: Well I knew that someone had seen him drive the vehicle. TJM: But you hadn't talked with anybody? Trooper: No I didn't speak with Mr. TJM: And just so it's clear, as it turns out, Mr. and Mrs. Lane didn't have enough money to pay the toll and they had to make arrangements to do that while they were stopping. 12 '. Trooper: Yes sir. That's why they were stopped. TJM: It wasn't a domestic spat or anything like that? Trooper: Not to my knowledge it wasn't. very good relationship. They seemed to have a :'.eM: Now, t:he standard ~ ie ld sobriety ':e9t9 ':hat you administer. You said you are certified but you don't have a card but you're taught how to grade those, aren't you? Trooper: Yes sir. TJM: And were those graded? Did you grade him on a scale of - on a number scale that most people are familiar with? Trooper: What number scale would you be referring to? TJM: To be honest with you Trooper, I think it runs in a one to six. I'm not positive. I've seen those little boxes. Boxes, little check sheets, are you familiar with those? Trooper: No, I don't carry a sheet with boxes on them. TJM: Do they train you to do those? Trooper: Yes sir, they do. TJM: Did you do that in this case? Trooper: I didn't have it with me, no, but I had observed a four. If you would like to call them points. The two tests - I'm taught that it takes two points to consider to have failed. Where I use failed as a lack of a better word and Mr. Lane did exhibit four cues if you will that indicate to me that his degree of intoxication was more than likely over the legally allowed limit. TJM: So on the one legged stand, how many points or cues would you give him? Trooper: I had given him - at that point I had given him two. When he dropper his foot I ended the test. TJM: Okay and as to the walk and turn Trooper: Oh, I'm sorry I gave - no I ended the test. 13 TJM: So you ended on two? Trooper: Yes, Two points and then we moved onto the next test, TJM: That's the walk and turn? Trooper: That's correct. TJM: And was the other officer - the backup unit - had it arrived? Trooper: No, Trooper Mc had not yet arrived. TJM: So, was there anyone else observing these field sobriety tests other than yourself? Trooper: No sir. TJM: What was the score given on the walk and turn field test? Trooper: Well, the score as I said is a term that would go with testing. TJM: How many points or cues would you give him? Trooper: I had given him two and that ended the test. TJM: And you said that your training indicates that once you hit two you should end the test? Trooper: Well, there's no reason to go further. TJM: Do you have those points or cues recorded in your police report any place? Trooper: I believe that they are listed in the report that Mr. Lane failed the one legged stand by being unable to pull his foot six inches from the ground and by being unable to hold his foot six inches off the ground for a count of 30 seconds by dropping on a count of three, more or less to that wording. TJM: So you have the language in here but you don't have the actual points marked? Trooper: No, I don't. 14 TJM: I'm not criticizing. You have it written in words but no scoring system? Trooper: Yes sir. I took notes as to what happened that night and I just put them into my report. TJM: When you administered the field sobriety tests, you were lware '/Jere 'IOU not sir ~hat Mr. 'lnd Mrs. Lane had 'just driven half 'way across the state? Trooper: Yes, they told me they had traveled from Pittsburgh. TJM: And is it fair to say that Mr. Lane didn't get out and do any limbering exercises or any stretching exercises before he was asked to submit to the field sobriety tests? Trooper: I have no idea if he did any. TJM: Well, you would have been there. Trooper: I didn't ask him if he fel t as though he needed to stretch. TJM: Did you observe him stretching? Trooper: No I didn't. TJM: Do you think you would have seen it if he were stretching? Trooper: I believe. Stretching - are we talking like a tired stretch as compared to running? TJM: Any exercises he would do after getting out of the car. Trooper: I don't recall if he got out of the vehicle and stretched or not. TJM: The notes you have regarding the heel to toe indicate that he failed his tests by not making heel to toe steps by not pivoting on his last step, do you have any independent recollection of how many times his heel failed to touch his toe? Trooper: No sir I do not. There was at least more than three. TJM: And you are basing that on your recall of the incident? 15 , . r ~RBIT1lBN, BARON, VILLARI" GOLOMB BY' RICHARD M. GOLOMB 1.0. NO. 42845 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARM IN IE 72 Peachy Newville, McGILL, in Ann Drive PA 17241 her own right v. TRACEY L. BURKHOLDER 1104 Doubling Gap Road Newville, PA 17241 and RICKY L. BURKHOLDER 157 Beetem HolloW Road Newville, PA 17241 ATTORNEY FOR PLAINTIFP COURT OF COMMON PLEAS CUMBERLAND COUNTY I~ /WOd I, ~ 11 J . .Cl LC L t.oW'- CIVIL ACTION COMPLAINT NOTICE 'Iou hi'" been auld," cou", If you wllh to deflnd 191'"1' the claWn' .., tarth If' the t~lowt'" 'iii', ,ou __.......__1'/1201--""'.......... and notd arl ..Md. by enurtnt I writteft ,ppel,anc. ..........., .. by "'''MY.''''' lil... In ...Ilint willi "'. court your defenM' Of otIt":'.' 10 the c&l.... II' forth 101"" YO'" Yo" '11 ........ _ ~ you 'oil 10 do ... 1M .... ...y _..d wI_ you ...d . 1.....-.. m.y be I"""" ~., you 11I'1 1M lUMII1 withOUt tunMf no'flee for tn, money ,Wnwd ... me compl....' or to, any other c\lim or ,.h.t ........t" by the ~Utf. You may 10M ",OM' or p,opeffY Of ot"" righI' kftpOIU"t to you. yOU SHOULD TAKE THI8 PAPEII TO YOUIlLAwYEII Al ONCE. If yOU DO NOT HAVE A LAwYEII 011 CAN. NOT AfFD"D ONl. GO TOOA TELEPHONE THE OffiCE sn FOAIH BELOW TO fiND OUT WHEAE yOU CAN GU lEGAL HEll'. Court Administrator 4th Floor cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 AV1SO \.0 """ domondodO........ 10 COllI. S1....odauloJl.... .......... ... ..... ~. ._.... 1ft IIi pislnO' ala......... lilted _ IIII.,.IZO\ dill'" pluo........ do "100'" do II domondl y II noti_idft. H_'....-'"' .... ............. ~ 0 on ......... 0 _.... Obotado Y '"'E*" -... _.-I...... do::::';'- all . III diomondI' ... _III do ... - . _quloI............dol_..._._1 modidll.J:- _~,.. .....,ndI ..._u._oln ~vIo 0 ....,Hiced6n. _fa. .........- doCIldlr . 1_ dol .......-... Y _II" qUI 11I- ........ .on 'ado.... plQlliolonOO do.... d_ndlI. Ullod,.-do pordof diMf'O . ... propledW"-' " 00'01 dlirechoe knPO"Iin'" ............ LI.lV! UTA DEMANDA A UN ABOOAOO INMEOIATA. MENTE. 81 NO TIENE A800AOO 0 81 NO TIENE ELDIN. EIIO BUFICIENTE DE PAGAA 11)L SEAVICO. VAYA EN PEASONA 0 L\.6ME POA TELlFONO A LA OflCINA CUYA DIAECCION BE ENCUENTAA EBCIIITA A8AJO PAAA AVEAIOUAA OONDE SE P\JEDE CONBEGUIA ASISTENCIA LEGAL. Court Administrator 4th Floor Cumberland County courthouse Carlisle, PA 17013 (717) 240-6200 . . KRBITHBN, BARON, VILLARI . GOLOMB BY I RICHARD M. GOLOMB 1.0. NO. 42845 10TH FLOOR 1201 CHESTNUT STREET PHILADELPHIA, PA. 19107 (215)563-8286 ATTORNEY FOR PLAINTIFF RYAN McGILL, a minor, by and through his parent and natural guardian, CHARMINIE McGILL and CHARMINIE 72 Peachy Newville, COURT OF COMMON PLEAS CUMBERLAND COUNTY McGILL, in Ann Drive PA 17241 her own right ILc ih . 1(.0/ {il/'~~e -,;,- v. TRACEY L. BURKHOLDER 1104 Doubling Gap Road Newville, PA 17241 and RICKY L. BURKHOLDER 157 Beetem Hollow Road Newville, PA 17241 CIVIL ACTION COMPLAINT 1. Plaintiffs, Ryan McGill, a minor and Charminie McGill, are individuals residing at the above address. 2. Defendants, Tracey L. Burkholder and Ricky L. Burkholder, are individuals residing at the above addresses. 3. At all times relevant herein, defendant, Tracey L. Burkholder, was the agent, servant, workman and/or employee of Defendant, Ricky L. Burkholder acting within the scope and course of said relationship. 4. Plaintiffs, Ryan McGill and Charminie McGill, are entitled to full tort rights as set forth in the Amended Motor Vehicle Financial Responsibility Act. 5. On or about, May 11, 1994, Plaintiff, Ryan McGill was a pedestrian crossing State Road 0233 in a westerly direction when he was struck by a motor vehicle operated by Defendant Tracey L. Burkholder and owned by Defendant Ricky L. Burkholder which was proceeding in a northerly direction on State Road 0233 near Center Road, North Newtown Township, Cumberland County, Pennsylvania, resulting in the injuries and damages set forth in detail hereinafter. , . 6. The accident aforesaid was caused by the negligence and carelessness of defendant Tracey L. Burkholder in that, she did: (a) fail to have said motor vehicle under proper and adequate control at the time of the collision; (b) operate said motor vehicle at a high and excessive rate of speed under the circumstances; (c) fail to give proper and sufficient warning of the approach of said motor vehicle; (d) operate said motor vehicle without due regard for the rights, safety and position of Ryan McGill; (e) operate said motor vehicle in such a manner that it could not be brought to a stop within the assured, clear distance ahead; (f) violate the statutes of the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles; and (g) otherwise, fail to exercise caution and due care. 7. As a result of the negligence and carelessness aforesaid, Ryan McGill, sustained injury to his right tibia, right radius, right ulna, right eye and right portion of his face, including bones, muscles, ligaments and discs thereof, as well as various other injuries and conditions as may be established, and injury to the nerves and nervous system causing plaintiff to endure pain and suffering and to lose time from plaintiff's usual duties, activities and occupation, causing a loss of earnings and earning capacity and to incur debts and obligations for medicine and medical treatment; all of which may be permanent. WHEREFORE, Plaintiffs claims damages in excess of Twenty Five Thousand ($25,000.00) Dollars from Defendants. KREITHEN, BARON, VILLARI & GOLOMB By: Ik~~ RICHARD M. GOLOMB, ESQUIRE Attorneys for Plaintiff ,- -.. '. '\ ~ i ., l"w. >,1;'".;, ", J'_' ?!c,.;~: . '" '.:' i) : ; ~_ 1',- ,. oi . ~ i) l. .1;:- " drl; "t [":," ; ,':' i' 1 t :' ~ ' r. t., ~~ ~t:~ _.\l't "''1'-' ',;1; i 11 _, , /2 0- Q,l-J fj~ ~I <~. G) 7Jt..<.L(.<..~ '-~i) . .. ',( .- ,:, i ~ '1 , J, . " '/1 i: i.t-_H i-\ ;'1 f. r-:>' " ~ . l ' ", l" _'. i" -j t', .1', .J " : ~ 1 . J;(' i' 'II ih ";1' ;.'", 1. . ,. ~1 \' it . '. ; A //~;: ~ ./"./, f~ ~ '" ~:.......-.' , -; - " '. /:Lf'=. 11" (:;'"-1<1.- Q. OrJ .... - ,- {';, ,.f.~,-- , tJif'l . RyAN McGILL, a minor, by and through his parent and natural guardian, cHARMINIE McGILL, and cHARMINIE McGILL, in her own right, PlaintiffS IN THE COURT OF COMMON PLEAS CUMBERLAND COuNTY, PENNSYLVANIA CIVIL ACTION - LAW v. TRACY L. BURKHOLDER and RICKY L. BURKHOLDER, Defendants NO. 96-1608 CIVIL TERM ~~~ECIPE FOR ENTRY OF APPEll.~ANCE '0' .rotbonotary, cou,t of Coeeon ,'ea' of CUmbe,'a" county, pennsylvania: p'ea.e ente' ou' appea,ance a. atto,neY' fo' oefendant. 'n tbe above act'en, ,e.erv'ng, hoWeve' , the ,igbt to p,ead 0' otherwise move in response to Plaintiffs' complaint. ICK B Free rg ey I. . 23152 ine Street P.O. BOX 1166 Harrisburg, PA 17108-1166 (717) 237-5267 / April 11 , 1996 KJu:ITHEN BARON & I CARPIY I J A....." " Low Trnth Floor IWI Chntnul Sml Phil.., PA 19107~179 m 56J.8Z86 Fu: m563.lJll.l8 December 10, 1996 Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 A"n: President Judge Harold E. Sheely Re: Our File Number: 94388 MeGill VI. Burkholder 'lsO~ CCP Cumberland County: No. 96.1608 Dear Presid.ent Judge Sheely: Pursuanllo your request at the Minor's Compromise hearing held on October 21, 1996, enclosed please find a copy of the Certificate of Income. By copy of this letter an enclosure to the Prothonotary's office, I hope this satisfies the Courts request. If any other infonnation is needed or required, kindly contact me immediately so that I can provide any additional as soon as possible. Respectfully yours, . n(,et~~ tD .1nO/'ft;r~J:lr{( NICHOLAS D. MAXYMUlK, ESQUIRE KREITHEN, BARON &. CARPEY, P.C. NDM/jmk Enclosures / Dictated but not read. cc: Cwnberland County Prothonotary (w/enclosures) J''-plllpjohody.1w M.'RlIS KREll"" BRLCE B'R'" STL.'RT .~. C'Rl'n ~llllutAS D. MA\l~lLl);