HomeMy WebLinkAbout96-02863
~
~
.0;)
'~
,C)
~ I
!
}
<<
.....
"
~
.!
i ~
I
,',
j
\
~I
/
",
"
"
i
~ /
I."
"
Ii
'^
H
'\1
'I
\
1./1'"
,'r
',I:
i:
,
"
'.
I
,
~
~
"
. ~,
R
, I~
ii'
"
~:
"
-
. ..
=-
..
(j
,'.,
I
,I
,I;
"
tc')
...t
~
~
.
presented at trial presented by the Defendant that the Plaintiff
did not suffer injuries as a result of the accident, But rather,
as stc:.ted above, even the experts called by the Defendant to
testify stated that the Plaintiff was injured as a r.esult of the
automobile accident.
3 . Once the jury found the Defendant's, Stephen B,
Odiorne's, conduct negligent, there was no evidence presented at
trial from which they can conclude that his negligence was not a
substantial factor in causing the damages to the Plaintiff.
"Substantial Factor" means causation. There was no evidence
presented by the Defendant from which the jury can conclude that
Mr, Odiorne's actions did not cause the damages suffered by the
Plaintiff, In fact, the doctors whom testified for the Defendant
testified that the Plaintiff was injured as a result of the
accident.
4, Once the jury concluded that Stephen B, Odiorne's conduct
was negligent, from the evidence presented, they could have only
concluded that it was a substantial factor in cauoing the injuries
suffered by the Plaintiff. Additionally, from the evidence
presented, once the jury determined that the actions of the
Defendant was negligent, the evidence required that they return a
verdict of some value to those damages. Because they did not, this
Court should grant a new trial.
,,~'
TAMI HEINTZELMAN,
Plaintiff
#23
:, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
STEPHEN B. OBIORNE,
Defendant
CIVIL ACTIO~ - LAW
v.
MARX E. HEINTZELMAN,
Additional Defendant No. 96-2863 CIVIL TERM
IN REI PRE-TRIAL CONFERENCE
A pre-trial conference was held in the chambers
of Judge Oler in the above-captioned case on Wednesday, October
22, 1997. Present on behalf of th~ Plaintiff was Darrell c.
Dethlefs, Esquire. Present on behalf of the Defendant was
Matthew R. Gover, Esquire. Present on behalf of the Additional
Defendant, who has settled with the Plaintiff in this case, was
Timothy I. Mark, Esquire.
This is a negligence action arising out of a
motor vehicle accident ocr.urring on May 23, 1994, in Dauphin
County. Plaintiff was a passenger in a car driven by the
Additional Defendant, her husband. Defendant was the driver of
another car. The accident allegedly occurred when Additional
Defendant Mark E. Heintzelman was operating his vehicle east on
Route 22 in the berm and Defendnt Stephen B. Obiorne took a
right-hand turn into the P.N.C. Bank. As a result of Stephen
Obiorne's turn, Heintzelman applied his brakes and skidded,
resulting in his automobile's impacting the curb, No contact
occurred between the Obiorne and the Heintzelman vehicle.
This will be a jury trial in which, pursuant to
an agreement of counsel, the Plaintiff will havo four peremptory
challenges, the Defendant will have four peremptory challenges,
and the Additional Defendant will have two peremptory
challenges, for a total of 10. The estimated duration of trial
ia one and a half days.
To the extent that any videotape or other
deposition testimony is to be shown or read to the jury and
contains objections which require rulings by the trial judge,
counsel are directed to furnish a tranacript of auch testimony
at least three days prior to commencement of the trial term to
the Court with the areas of objections being pursued highlighted
and with brief memoranda in support of their respective
positions.
Although the Additional Defendant has settled
with the Plaintiff, the settlement agreement does not concede
liability on the part of the Additional Defendant, and as a
consequence the Additional Defendant will be present in Court
with his counsel and will participate in the trial.
It is noted that both Attorney Gover and Attorney
Mark have other cases scheduled for trial during this term as
well.
Counsel have indicated that they do not
anticipate that this case will settle.
By the Court,
TAttl HEINTZELttAN,
Plalntlff
Y.
IN l'HE COURT OF COttttON PLEAS
CUttllERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96-2663
STEPHEN II. OOIORNE,
Y.
ttARK E. HEINTZELMAN,
. Addltlona' Defendant
JURY TRIAL DEMANDED
PLAINTIFF'S PRE-TRIAL MEMORANDUM
I. STATEMENT OF FACTS:
As to l1abtllty, this case Involves anllUtomobtle accident which occll"red on
May 23, 1994, On that date, the Plaintiff was the passenger In the vehicle be1ng
operated by her husband, Mark E, HeIntzelman The vEl1lcle beIng drIven by the
Plalntl ffs I'xlsband approached the intersectIon of Devon~hlre Road, The vehicle beIng
operated by the Defendant, Ste~hen B, Od1orne, made a s\Xfden turn In front of the
vehicle beIng dr1ven by Defendant, Mark E, Heintzelman, whIch caused Defendant,
Mark E. Heintzelman, to hH his brakes 1n ll/l effort to avoId a coll1 s10n and sl1de Into
the c~, As a result of the aCCident, the Plaintiff, Telrnl HeIntzelman, suffered
ser10us InJUries,
II. STATEttENT OF FACTS AS TO DAMAGES:
The PlaIntiff, Taml Heintzelman, suffered serious InjurIes to herbelck and neck
as a result of th1s Incident. As a result of the IncIdent, she WllS required to underllo
VII. SnTLEt1ENT STATUS:
The PlolntUf has nttled with the Defendant, I10rk E. HeIntzelman No offere
hove been mode by Defendont, Stephen B, OdIorne,
. Date: 10/'1-1/'11
Reepectfuny SUbmItted,
THELAW 0 I E OF ~ L..
orrell C, Dethlefs, Esquire ,
Attorney 10' 56605 .
Wll9ner Building - SUite :2')5
355 North 21 st Street
Camp HlII, PA 17011
(717) 975-9446
" I'
\ .
TAMI HEINTZELMAN,
Plaintiff
va.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
,
,
: CIVIL ACTION. LAW
STEPHEN B, ODIORNE,
Defendant
,
,
: NO, 98.2883
va,
MARK E, HEINTZELMAN,
Additional Defendant
,
,
: JURY TRIAL DEMANDED
DEFENDANT'S PRETRIAL MEMORANDUM
I. STATEMENT OF FACTS AS TO LIABILITY:
On May 23, 1994, the Defendant Stephen B. Odiorne, was lawfully
traveling in the eastbound direction of Rt. 22 in Lower Paxton Township, Dauphin
County. Approximately 250' west of Devonshire Road, the accident between the
Odiorne and Heintzelman vehicles occurred, Investigation revealed that
approximately 100' prior to Impact Additional Defendant's vehicle got Into the
extreme right berm of Rt. 22 and proceeded forward to make a right turn onto
Devonshire Road. At the entrance of the PNC Bank, Odiorne made a right-hand
turn Into the drive way which caused the Additional Defendant to hit his brakes
and slide Into the curb. No contact was made between the Odiorne and
Heintzelman vehicle. As a result of the accident, the passenger, Tamml
Heintzelman. sustained various Injuries,
II. STATEMENT OF FACTS AS TO DAMAGES:
This section Is not applicable to Defendant Stephen B, Odiorne.
III. STATEMENT OF LEGAL ISSUES:
A, Negligence of Stephen B. Odiorne
B. Negligence of Additional Defendant Mark E. Heintzelman
C, Damages to the Plaintiff, If any.
IV. SUMMARY OF LEGAL ISSUES SURROUNDING ADMISSIBILITY
OF EVIDENCE:
It Is believed that there are no novel Issues which will arise as a
result of the trial of this case.
V. IDENTITY OF WITNESSES:
1. Tamml Heintzelman, as on cross examination
2. Mark E, Heintzelman, as on cross examination
3. Stephen B. Odiorne
4. Dr. Charles Yanofsky
5, Dr. Balint Balog
"
, "
'06~25-1S~? 15'20
? 17 201060482
CUI'lllI!RLANO COURT AD,.,
P,02
. .
"
. .
JAM!8 I.. SHIUClA'LL, JR., I III Ta COUl'T OJ' COHHClH 'LEAS 01'
IHDIVIDOALLY AHD AI HI I C:OXUIl%.AHD C:Ol1N'1'Y, P!NNSYLVANIA
IXlC~R O~ TBI I'~TI OJ'
JAMBS L. IMI'l!1IGALL , SIIJlLJIY
A. SKITIlGALI., JOY A.
8HITIlGAt.I. WUllC:I, IU!IT ANI)
UUCJl A. 8KITlQALI,
V.
TBB COMHOHWBAtTI or ,1..
DIPARTIGNT 0' '1'JWI.JOJlTATIOar
HO. is-2734 CIVIL TJRM
V.
UVIH LZI lCNOWUHD, J ...
BI1N'1' TRAHIJlOIlT, :tIC. . IIW
IHTlUlU81 STOll . LJ:HI C:O.,
INC.
C:IVIL ACTION - LAW
IN RJII
,~!"S' ~tO. POR 3UnGMBNT ON ~RE PLEADINGS
"POUI ...ft.Y. ~.3.. 1I01'nR. 3. OLBR. J.
1:1''"11:011 J.Jm OItDn O. COUK'1'
Th. und.~ly1n9 caul. of action of the ca.e b.fore us
conc.rnl a fatal vehiculaz accid.nt which occurrld on Route 81 in
Carli,l., J.nn.ylY&D1a. Plaintiff. are the adult children of the
couple 1U1l.d iA the accidlnt. They have IWvld for judgment on
the pl.adin" to 41.-1" additional d.tendant. K.vin L. Kncwland
(Knowlandl, operator of the tractor-trail.r that collided into
the d.c.d.nt.' vabicle, and Inewl.nd'. employer, J.B. Bunt
TnnepeJ:t, Inc. (J.I. lunt). The b..i. for plaint.i.fh' requ..t
i. a r.l.... ,slGut,d b.twe.n plaintift., and J.B. Bunt and
. '
Inewland. Th. r.l.... 'p.cifically acknowledq.. that Xnowland
va. a joint tort-f.a.or who.. n.qliq.nc. wa. a lub.tantial factor
in cau,in, the d.ath. of plaintiff" d.cedent., and that Bunt wa,
J:..pon.ibl. tor Inovland'. conduct. Th. Commonwealth ot
~6~25-1997 15121
717 2408462
CUMIl~U\NO COURT AOM
p,e;s
NO. 95-2734 CIVIL T!JM
Pennaylvania, Departm.Dt o~ franaportation (PennDO~)/ the
origi~,l de~andant, oppea.. plaintiffs' motion. We hea:d
argument on December I, 1995.
P~T9 AND PROC~DURAL HISTORY
On,"4Y 19, 1995, plaintiffs filed a complaint againat
P.nnDO~, all.ging the wrongful death of their parant./ Jame. L.
smithgall and Shirlay A. Smithgall, who were killed in a
vehicular accident on Inter.tat. 81. Plaintiffs' complAint Aver.
tne following: On Oatobe: 19, 1993, at approximately 5:20 p.m./
the &mithgalla wen traveling north on 81 in CWllbe:rJ.and County
when they ware nquired to atop at a con.truction a:ru.1 While
the SmithC;'lll. wua waiting at the enei o~ a traUic quaue, a
tractor-trailar owned by J.B. Bunt and operated by Knowland
failad to atop and collid.d into the raar of the Smithgall
vehicle.' Jama. and Shi%l.y Smithsall died a. the re.ult of the
injurie. they .ustained in the colli.ion.1 Plaintiff. contlnd,
among other thing., that penDDOr did not place or require
.ufficient t:affic control device. to warn drive:. of the
pre.enel of a traffic queuI at a location whera traffic is
expected to be t:avelinq at ba.t 55 mil", pe: hou:.' Plaintif fa
maintain that PennDOT'. alleged nlgligenc. wa. a subltantial
Icomplaint of Plainti~f., S7, 'S.
I,
IColllplaint, S9, S10, SU(.)(ll)(c)).
'Complaint, !11.
'complaint, S14(c( (c1) (e),
2
'e6-23-1SG? 13121
'11? 24ll646i
CUMB~ANO COURT AOM
p,e4
.
,
.
~o. 95-2734 CIVI~ !IlK
taato~ in oa~.ing tbei: pazlnt.' death..1
On July 26, 1995, l'eDnDOT ~iled a complaint to join J.B.
Bunt .nd Kngwl.nd a. additional defendant'r ola~n9 that J.B.
Bunt va. vica~iou.ly ~..pon.ibll fo~ Jngwland'. .11Ig.d
n.glig.nc. in the op.~ation o~ hi. tracto~-t:ail.r.' l'.nnCOT
f~rther av.rrld th.t Knovland and J.B. Bunt w.r. to be join.d in
tbi. .ction to p~ot.ot PennDOT'. right of oont:ibution.' 'ennCOT
then fil.d an an.w.r and n.w matt.r to pl.inti~~.'. complaint on
Augu.t 25, 1995, d.nying it. n.gligenc. .nd r.....rtin; the
n.glig.nce of Knowland .nd J.B. Bunt a. the cau.. of plainti~f.,
10.... and injuri...' Furth.rmorl, 'InnCOT di.cov.rld that
pl.intiff. ..ttl.d witb Kncwland and Bunt' and .ll.ged that an
acImJ...ien centaineci in the rel...." fully .::&tinqui.h.. .ny
'CemplAintr !15.
'CemplAint ot l'.nnDOT, !Br !14.
"ennDOT .bo join.d New !nterpd.. Stone , Lime Co., Inc.,
the company which bad pe~to==-d the con.truotion, wor~ on 81, in
o~dlr to prot.ct it. right of indemnity .nd contribution ari.ing
from .ll.g.d contractual obligation..
'An.w.r of p.nnJlOT, n5.
'An.wer of p.nneOT, !59. Th. :.1.... i. attach.d .. Ixhibit
A.
10Th. rel.v.nt portion of the relea.e .t.te. II follow. I
.a.l....Ce). con~.d.d in th. law.uit rlf.~r.d
to above, .1ICi .....ly aCMowledg. in this
S.ttl...nt Ag:.em.nt and a.l...., th.t the
n.glig.nc. of Klvin L.. Kncwland wa. ·
.ub.tantial factor in cau.ing the de.th. of
Plaintiff.' d.c.d.nt. .nd th.t a.l...... ar.
liable for hi. conduct..
:l
06-25-1997 15'22
717 24064801
CUI'1SERLMO COURT ACI'1
NO. 95-2734 CIVlL TIJH
l.l.abil1ty of 'enn.llO'1'.n Plaintiffl filed a r.ply to PlnnDOor',
Dew matter on Septemblr 12, 1995, aam!ttini the exi.tlnce of the
rllea.e but denying that thi. .dmi..ion cr..t.. .ole liability in
KDowland aDd Bunt and further d.nyiDi that tbl' ac1m1leion create.
an allUMption of . .uhltantial percentage of liability under the
Ccmparative Heiligeace Act.u
On Septamb.r 29, 1995, Xnowland and Bunt anlwered ,ennDOT'.
complaint to join th.~ al additional parti..r contlnding that any
alleged injuries .uffered by plaintiffl were caue.d by PennDOT
and acld.i.tional dlfendant H.w Interpriee.ll On October 16, 1995,
plaintiffe filed a motion r.queetinq di.miaeal of def.ndant.
lncwland and J.B. Bunt, or in the alternativ., to relieve them of
any r.'pon.ibility to def.nd or partic.i.pat. in thi. action,
KDowland and Bunt provided notice of ~oncurrence with plaintiff.'
mction. It ia thia motion that ia before tbe Court for
dilpo.! tion.
An.wer of '.nnDOT, exhibit A (harein.fter R.l....), page 2.
I
I
,
I
I
I
, !
I
"Anew.r of flnn.DOT, ~ ,d2.
, ,
UReply Qf P1aintUh 'to, New Matter of PennCO'.t'. The
Comparative Neglig.ncl Act can be found at 42 Pa. C.S.A. S 7102.
llAllew.r of Additional Defendant. Knowland and J.B. Bunt,
!9, !15.
4
P.05
06-25-1997 15122
717 240646i
CUI'1e~ COURT i\CM
P.06
. '
NO. 9S-2734 CIVIL TIRK
Dt!l:D!lSIOH
In deter.aining wh.th.r to ~%ant . motion for jud;ment on the
pl.~dinga. a trial court muat acc.pt aa true all well plaad.d
atat~nt. of fact, admi..ion., and any document. prop.rly
attached to the pleading' pra..nt.d by the party .gain.t vham the
mct10n i. filed. McAlli.t.~ v. M!11vill. Mutual tn.uranee Co.,
433 fa. Sup.r. 330,334, 640 A.2d 1283r 128S (1994). We may
grant judgment on the pleading. only where the moving p.rty'.
right to .ucceed i. c.rtain and the ca.. i. .0 fr.. from doubt
that the trial would cl.arly be a fruitl... .xerei.e. IA. A
court ahculd grant a motion for judvmant on the pl.ading. wh.re
the pl.ading. demon.trate that no genuine i..ue of fact exi.t.,
and the moving party i. entitl.d to judgment aa a mattar of law.
~.
Plaintiff. contend that the r.l.... execut.d b.tween
th.ma.lv.. and additional defendant. xncvland and J.B. Bunt
obviate. the n..d for the latt.r to participat. in the trial.
Th. r.l.... not only acknowledg.. that Xnovland (and therefor.
J.B. Bunt) va. a joint tort-f.a.or who.. n.glig.nce wa. a
.ub.tantial factor in cau.ing the accidant, but r.quire. "Il
reduction in any judgm.nt obtained by plaintiff. agalnlt fennDOT
or N.w Enterpri.e by the .Daunt of Knc~land'l and Bunt',
percentage .b.ra of fault/liability, or their pro rata .hare of
r..ponaibility tor any v.rdict or judgment if applicabl. under
!
,08-25-19&715123
717 24G1tl462
Cl.teERl.A/lll COURT ACI'1
P,07
.
WO. 15-2734 CIVIL TERM
the circWll.tanc... "14 Plaintiff. .ubait that the ..t1:1...nt
aqr.emant i. a "Griffin" r.l.a.. .tamming from the Third
circuit'. d.ci.ion in Griffin v. United Stat.., 500 r.2d 1059 (3d
Cir. 1974).
In Griffin, two .ction. w.r. in.titut.d in t.d.ral court
r.q&:ding Mary Griffin'. all'9.d ing..tion of a liv.-viru. polio
vaccin.. Plaintiff" action aq&iDet Charl.. Pfis.r , Co., the
manufactur.r of the v.ccin., ..ttl.d pur.uant to & r.l...., but
tn. oth.r ca.. fil.d again.t the Unit.d State. Government led to
. verdict in favor of plaintiff.. S.ceu.. the Gov.rnment did not
. join Ptis.r .. an additional party, the di.trict court h.ld th.t
the agr.ement b.tw..n the Griffin. and pfis.r r.ducing any
judgment r.nder.d a,ain.t oth.r alleg.d joint tort-f.a.or. by
Pfiz.r" pro-rata .har. wa. th.r.tore invalid. Th. Gov.rnment
app.aled .nd the Third Circuit r.v.r.ad, holdinq that althouqh
the Gov.rnment n.v.r join.d pfizer .. an .dditional d.f.ndant,
the Griffin. had conc.ded the joint tort-t.a.or .t.tu. ot Pfizer
by the t.rm. of the r.l..../ the Griffin., th.r.fore, waiv.d the
b.n.fit. provided by the holding of the Plnn.ylv.nia Supreme
Court in D.vie v. Mil18r, 385 P.. 348, 123 A. 2d 422
(1956) (r.quiring th.t additional det.ndant Mill.r, r.liev.d of
liability by a r.l...., remain in the .ction to d.t.rmine h.r
,
.eatua .. jojnt eort.f..~or)(.mpha.i. add.d).
In the pr...nt cae., th_ .tatu. ot Xnowland a. joint tort-
145.. R.l...., p.3.
6
~6-2S-199? lS:2J
?1? 2406462
~ERLANO COURT AOM
.
.c. '5-2134 CIVIL TIRK
f.a.o~ i. e.tabli.b.d by tbe ~.l.a.e that additional def.ndants
executed with plaintiffs." lnowland and J.B. Bunt have adllLl.tted
liability and that any j~qm.nt again.t '.nnDOf and/o~ Hew
Znt.~pri.e will b. r.duc.d according to ~nowland and J.B. Bunt'.
adjudged liability. The i..u. her. i. wh.ther the additional
defendants aze ~equired to participate in the action 10 that
their .har. of relpon.ibility may be determin.d by the fact-
finde~. Although WI find merit to 'ennDOf'l contention that it
will be prejudic.d without the pr..ence of Xnowland and J.B. Bunt
at trial, our ~eview of tbe oa.. law indicat.. thAt ..ttling
defendant. aze not ~equirld to pezticipat. in the action when
they have concadAd their .tatu. a. joint tort-feaeor..
Initially, we tun to Hat10na1 Libertv Life In.urance v.
11ina Partner.hi~, 350 Pa. Super. 524, 5~4 A.2d 1273 (1986), a
ca.e cited by both partie. in eupport of their r..pective
po.ition.. In Natiqpal Libertv, cur Superio~ Court revers.d the
trial court and allowed the non-.ettlL~g def.ndant (B.thlehem) to
join nunc pro tunc an additional defendant who had .Ittled with
the plaintiff (but did not admit liability) .~lely to det.rmin.
if Blehl.haa could r..liz. its right to a pro rata r.duction in
any judgment rendered again.t it. Nation.l Libertv, 350 Pa.
'.'ennDO': contende that by acknowl.dging Knowland .. a join~
to~t-f.a.o~, the r.l.... ...ume. that P.nnCO~ h.s be.n
..tablish.d .. a joint. tort-hAlor by vi~tu. of the t.rm . joint."
w. do not. beli.ve that t.rming lnovland a. . joint t.ort-f.aeor
makss such an a..umption but va. ueed merely to indicat. t.hat.
Xncwlan~ wa. .ckncvleuging fault.
7
P,08
'~8-25-19S7 15'24
CUHIlERLANO COURT ADM
, P.01l
717 2408462
, .
110. 95-2734 c:mL 'riM
llap.r. at 534-35, 504 A.:Zd .t 127 ('IIIJilha.ia add.d).u In the
in.t.nt C..I, 'InnCOT'. right to a pro r.ta r.duction i.
Iandi.plat.d; thla', und.r NationAl Lib.r~, therl i. DO rIa. on to
require Knowland and J.B. Bunt to r~in in the act10n.
Accordingly, wheD the joint tort-f...or .t.tu. of th.
..ttling party i. cQDceded in the rel...., a eo-call.d "Griffin"
r.l.... h.. been .x.cuted. ~h. right ..tabli.hcd by th. holding
in Cavi., supra, to r.tain a ..ttling defendant in order to
d.t.r:ine wh.ther that d4f.ndant i. . tort-f.a.or i. therefore
waiv.d whln the tl~ of the rllea.. concede the defendant'.
.tatu. a. joint tort-fe..or. It i. only in the in.tanc. where .
..tt1ing d.fandant r.fuI.. to admit it. .tatu. ., joint tort-
f.a.or that oQZ appellate court h.. mandat.d that a l.tt1ing
dlhndant participatl in the action. w. note 1'.nnDC'r'. argwnent
that '.nnDOT it..lf va, not a party to the r.l.... and tn.t it
.hould not be bound by the term8 of the rella... 1'.nnDCT, thenr
U'rhe cQurt, in footnote 6 of it. opinion, Itated the
follClwing regarding the d.finition of a "Griffin" r.l....1
B.thlehllll argue., in the .lternativ., that the r.l.a..
giv.n to th. ..ttling defendant. 11 . GrJ.t!J.n r.le...
which Clbviat.. the nec...ity to rltain the ..ttlin9
d.f.ndant, a. parti.. to the action but requir.. a
pro rata reduction in any verdi.ct rend.r.d again.t
B.thllhllll Stl.l. ~hi. .rgum.nt i. meritl.... ~h.
r.l.... giv.n by ..tional Lib.rty to thl 'Ittling
d.f.ndants i. clearlY. not a GrJ.t:tJ.n :cal.... U
liabilitv on ~h. ~art of th- .et~lina d.f.rtdan~. wa.
not cone.dad.
National Libertv, 350 P.. Super. .t 532, 504 A.2d at 1278
(Impna.i. added).
8
, 011-25-1987 1!l124
71? 24l1l14112
CUMlIER~ COURT ADM
.'
.
, "
.
HO. 95-2734 CIVIL !IlK
wi.h.. no~ to b. boUDd by ~ r.l.... in wbich the ..ttling
de~enQant. conceda liability b.c.u.. .uch .n adm1..ion k..p.
,
Knowl.nd and J... lunt ou~ of the action,' Wheth.r or not 'eanCOT
w.. a party to the r.l.a.e or not, ~owland and J.B. Bunt have
concedeQ liability. w. tind DO ca.. l.w that requi:.. a
d.f.nd.nt to participate in the action aft.r ..ttling in order to
d.t.rmin. ita perc.ntag. of liability.
Retaining a ..ttling defendant in the trial .olely for the
purpo.. of allocating liability ha. been b.rred by fed.ral ca..
law. In youn~ v. Ver.on All.eeel Pr... Co., 524 F. Supp. 1147
(2.0. Pa.1981) the court .uccinctly .tat.d1
. . . It i. .imply . non .equltu~ to maintain, a. rede:al
do.., that without the pre.eno. of Ver.on, the fact-
find.r cannot det.rm!n. the extent of r.d.r.l'.
cOlDparau.v. neglig.nc. vi.-a-vb YOUDg. Jlothing
pr.v.nt. r.deral from introducing what.v.r prob.tiv.
.videnc. of V.r.on'. culpal:lility it may otherwil. have
off.r.d with V.rlon pr...nt at trial.
Sim,l! put, th.r. i. no practical .conoadc b.n.fit that
will Dura to r.deral ~rCl\l V.rlon'. pr...nc.. Th.
pot.ntially dramatic .~f.ct of pointing at an
acqui..c.nt d.f.ndant i. not a .u~ficilDt r.alon to
force V.rlon to bear the .ddition.l def.n.. of
app.aring at tri.l .ft.r ..ttling with plaintiff .nd
after .igning . r.l.... that provide. r.d.r.l with all
the .conomic benefit. whicb r.d.ral could hay. .chi.ved
aft.r . tri.l in which V.r.on wa. pre.ent. It i. clear
und.r Qr~~tln th.t Ver.Cln would have been reliev.d of
attendance It tdal. Nothing in p.nn.ylvania"
CClmparltive Negligence Statute, public policy
cCln.ideratione, Clr logic compele I cClntrary cClnclu.ion.
~. at 1152. partly in r.liance on youna, Clur Sup.rior Court h..
, '
.tat.d the following, although in a diff.rent ..etin9, which
app.ar_ tCl ai.approve Clf r.qui:inq the pr..ence of a ..ttlinq
9
,",10
. elS-aS"'111117 lS1 as
717 a4alS4ea
CUMIlI!:RLAND COI.IlT AC/'1
P.U
.
HO. 95-2734 CIVIL ~KRH
def.ndant at trial .ollly for the purpo.. of d.t.rmining it.
.har. of li.bilityl
. . . to find th.t .ppell...' pr..caee .t trial i.
n.c....ry to d.t.rain. th. dam&V" appellantl may b.
obliqed to P'Y, vould . . . d.ter ..ttl.mant of action.
and v..t. judicial re.ource. . . . .
H.rka v. N.bat~, 337 'a. Super. 617, 625, 487 A.2d 432, 436
(19851. Kor.over, our lupreme court in Ch.rl.. v. Giant Waqle
Hark.t., 513 ,.. 474r 522 A.2d 1 (1987) not only .trcnqly
encouraqed the promotion of ..ttlamenta but .tated that "(t]be
inducement. for a defendant to .ettle are the c.rt.inty of the
aq:.ed upon obliqation .nd the .voidAnce of th. v.qarie. of
trial. ~. at 477, 522 A.2d .t 2.
In conclu.ion, it appe.r. th.t our court. vi.h to encouraqe
aettlement .9%....nt. by protlcting fraa further litigation
elttling def.ndant. who .dmit to beinq joint tort-fa..or.. w. do
recogni2' th.t .lthougb th. jury may fiRd little or no f.ult
attributed to ,ennDet without tb. pre..nce of the .ddition.l
defendant., ,ennDOT h.e a valid int.re.t in h.ving Knowland and
J.B. Bunt pre.ent 10 that the fact-finder vill not be inclin.d to
attribute fault to p.nneOT ma:ely becau.. of it. pre.ence .t
trial. ~onethel..., the torlgoing diacuaaion reflect. th.t
Know1.nd and J.B. Bunt are not r.quirad to participate in th.
tri.l.
, ~
10
ee-25-i887 15125
717, 2~0482
CUHI!~LANO COURT AOH
P,12
.
. .
HO. 95-2734 CIVIL TIIH
QaDB1t 0. ~CU1l'l'
AHD NOW, thll .Ld. day ot ~, 19Ur
Plai~~itf.' Notion to Di.-i.. i. G~ID to the .xtent that
additional def.ndant. levin Lee lnewland and J.B. Bunt ~ran.pert,
Inc. .hall net b. required to p~icipate or det.nd in the abeve-
captioned c.... Bovever, th.y .ball r~in nam.d .. parti.. to
the .ction.
, '
By the ~out,
1.1 Ra%old R. Sh..ly
Barold I. Ih..ly, P.J.
aobert B. 11ion, IlqUirl
FoZ' the PlaintiU
Charlee E. W..Ud.ki, laquire
I'or the CefelllSant
uld
,
, ,
I'.'
11
IN THE COURT OF COtltlON PLEAS
~ COUNTY, PENNSYLVANIA
No, 9,-, 1.1-'1.. ~ 0.....1 ttJ"",/
Clvtl Action - (x) Low
( ) Equity
'rAMI HEINrZ~,
542 MJore Street
MillerBburg, PA 17061-1156
vertUI
9I'mml B. OOIClOO3,
6357 stephens Crossif19
f.lechaniCBburg', PA 17055
Plel nl1 ftCI) &.
Addrel8(ee)
Detll'ldlnl(s) &
Addresl(81)
PRAECIPE FOR WRIT OF Sl)ttttolt$
TO THE PROTHONOTARV OF SAID COURT:
, '
Pleese Issue writ ot summons In the llbove-coptloned ectlon,
Writ ot Surrmons shell be Issued end t
roed to ( ) Allorney (x) Sheriff
Darrell C. Dethlefs. Esauire
Wagner Building - Suite 205
. 355 North 21 st Street
Camp Hill, PA 170i1
(717) 975-9446'
Neme/ AddresslTelephone No.
of Allorney
51 nelure ot Allorney
Supreme Court 10 No, 58805
Dete: May 23. 1996
WRIT OF SUttttO..s
I
TO THE ABOVE-NAMED DEFENDANTCS):
Dete: fYl,:!" .J ~ 1')9 l.
. .
YOU ARE NOTIFIED THAT THE AIlOVE-NAMED PLAINTIFF(S) HAS/HAVE COHME~CED AN
ACTION AGAINST YOU, 1/ ~L">L" ~~ rj I, L/,'~., ~
Prolhonotll"\l
bll.A.<1-, ~) l/~)>? }<~s~urP;j- ,
',J
!,',l
.',', I,'
I,
1'1 ';1 i)\
Ph il i" Boll ghman
r:(,
'I :i1
, I
~ -\ \-
'i
I'
il
,i
'1.'1,1:
'il!
. ,II
:!;
[,
'j I}
, .
, " " , , I
, ,
,
\~ I ! 'I i Ii ,LI ,ii' !"
I,l, '"
,r ,,\ HI, \1
,
.' ,I ; ,I 'I~ I.:'; \ ; Iii I J ' '
I
',1<
i'I';;'- I ji'l Il"
I'
II,
1'1',
1\1 , I ;"
,
'01" , ", Ii;. . , I
1,'1
,..
l'I":! !
I';! t.
(.-e
9~
C-}t~
t ~ '
i,ll'
"--i,
".,
,:";,1-
i !
i." \
,~-
,
i
c.
~..,.,
A {).,,'r:.. '
,'-r7'
\
,IL'
'JI,
l' I,
Ii
I,
I'
d , , .1
" I I' I
',j "
i ('Ud 'I.';. i\,fH/
i~~~L.4(.~
"
,1111 :f
'.~; I J ,
"
1'<'/
'Iili'
',1
{, l!l,I,;! 'II
,: III ,f, n:U \':1
I !Jr'
'!);'li'i'
,
"
,:.j i 'i'
i,
PJJp e
i-I ';",,1
1./",
"t
II
I"
"
.....
~
~ (J\ c.: ,
N .,
f M 'J~
J'o
.... :r: Jif:
if. "- ,:,;::3
(.) co .~0
r,l
,.... I " ft;l
L'7, ,.~
(tV-; .11
r.; ;OJ ..'),
'"" d
~i \,0
Ol
~
,
,
, "
.'
, ,
,
"
LLEVE ESTA OEMANDA A UN ABODAGO IMMEDIATAMENTE. 51 NO TlENNE
ADOIiAD 0 51 NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAVA EN
PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUVA PUEDE CONSEGUIR
A5SISTENCIA LEGAL:
CIJMBERLAND COUNTY
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
One CourthOUse Squore
FOlI"th Floor
Cerll$le. PA 17013
(717) 697-0371
By:
Oernlt C. Dethlef., EsquIre
DCD:eld
, ,
, ,
, "
6. The accident giving rise to the instant civil action occurred on May
23, 1994 on Route .22 just West of D'!vonshire Road in Lower Paxton
Township, Dauphin County, Pennsylvania.
7, At that time and place, Additional Defendant, Mark E. Heintzelman,
was operating a 1989 Ford Festiva on the berm of Route 22.
8, At the same time and place, Stephen B. Odiorne, was lawfully
traveling in the eastbound direction of Route 22 preparing to turn into
the PNC Bank.
9, Once Odiorne began his turn, Additional Defendant Heintzelman hit
his brakes and slid his vehicle into the curb.
10. During the relevant time, Heintzelman was operating his vehicle .in
violation of 75 Pa,C,S. 53334.
11, 'rhe accident givIng rise to the instant action, was caused solely
by the negligence of the Additional Defendant, which consisted of the
following:
a. Operating his vehicle in violation of 75 Pa.C.S. 53334,
b. Failing to keep the vehicle under proper and adequate
control.
c. Failing to keep a careful and diligent watch on the
roadway,
d, Failing to comply with the provisions of the Pennsylvania
Motor Vehicle Code relating to the operation of vehicles,
specifically as they relate to aforesaid negligence; and
"
"
e,
Driving his vehicle too fast for the conditions
"
,
eXisting.
12. Additional Defendant waa solely liable to the Plaintiff for such
injuries or damages as she may be entitled. In the alternative,
Additional Defendant is jointly and severally liable over unto Defendant
on the cause of action declared by the Plaintiff for contribution and/or
indemnification.
WHEREFORE, Defendant, Stephen B. Odiorne, demands judgmel\t against
Additional Defendant, Mark E. Helntzelman, as he is alone liable to the
Plaintiff for such injury or damages.
In the alternative, Additional
Defendant is jointly and severally liable over unto Defendant, Stephen
B. Odiorne, on the cause of action declared by. the Plaintiff for
contribution and/or indemnification.
F;'
Respectfully submitted,
NBALtJiN GOWR
By: .. 'i.d /()!i-
t e R.~oJer, Esquire
Attorney ID # 47593
301 Market Street -- 9th Floor
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
:1
~1:,1 '
I'i
...,
i"
"I
I'" ,I
,
"
"1'1
"I
I,
, ,
"
1'1
"
,
')
HI'"
,
,f'"
, ,
"~I
j"
,
,,' ""
"",t
"I
',II
" , ,
"
, , , . ",;1',.-
, I ,
, " , " ,
'c,, , ''I ,',"
,
, "
. , i"
ii'
"
,I'
,',
,
" "'1
'ir : \ , \
,
I, L "
" :" " ,
, ; ,
, ',' , "'i
,
'II " " "
,
\ ~ ,
I" /'
, ,
,!
"
,I",
, '
..
'",
',F
JI
, ~,
IllhIbIt II
"
'f:'
"
I,
"d
" ,
"
"
,I
'I', 'i
1-"1
,1,\
"
",
, '
I'!
I'
" ,
"
',,1
I:'
i'
"
,'I',
'"
'" '"
"~I,'
"
nMI HEINTZELMAN.
Plaintiff
Y.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLYANIA
: NO. 96-2863 CIVil TERM
CWIL ACTION - LAW
STEPHEN D. ODIORNE.
Defendant
NOTICE
Vou have been sued In court, If Ilou wish to defend against the claims set forth
In the following pages, 1l0\; must take actton within twentll (20) days after this
complaInt ond nottce heve been served. To defend against the oforemenltoned clolma,
o wrlllen oppeat'llnce stoltrlg Ilour defenses ond objections must be entered end filed In
wrlUng by you, the Defendont, or by on attorney, You are warned thot If you fall to
toke action llgolnst these clatms, the court moy proceed Without Ilou and 0 judgment
for anll monell clelmed In the complolnt or for onother claim required by the Plelntlff
mall be entered ogelnst you bll the Court wtthout further notice, You my lose money,
propertll or other rl ghts Important to you
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU 00 NOT
HAVE A LAWVER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FINO CliT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
One Courthouse Squere
FOlrth Floor
Corltsle, PA 17013
(717) 697-0371
NOTICIA
Le hon demandodo 0 usted en 10 corte, SI uated qutere defenderse de estos
domondos e)(j)uostas en los poglnes slgulentes, usted tlene vlente (:20) dillS de plozo 01
portlr de 10 feche de Ie demende y 10 notlflceclon, Usted debe presenter une epcrlencle
eecrlto 0 en persono 0 por abogedo II orchlvor en Ie corte en forme escrlte sus
defenses 0 SUS obJeclones 0 los demllnclos en contro de su persone, See evlsado que s:
usted no se deflende, III corte tom ere medldos II puede entrer une oroe contl'8 usted
sin prevlo Olllso 0 notlflcllclon II por cuelquler queJo 0 ellvlo que es ped1do en Ie
petlclon de demendll. Usted puede peroer d1nero 0 SUS proplededes 0 otros derechO$
Importontes pore usted.
TRUE COpy FROM RECORD
In rosllmony whereof, I I:ere unto set my hand
and Ih~ ~I 01 said Court al Cartlsle, Pa.
rills (m day. ~~~. 19 ~~"
Ailn . ") r.~ --t.
. r
Prothono
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TlENNE
ABOGAD 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAVA EN
PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA PUEDE CONSEGUIR
ASSISTENCIA LEGAL:
CUMBERLAND COUNTY
CUMBERLAND COUNTY LAWVER REFERRAL SERVICE
One Courthouse Squore
FOll'th Floor
CerUele,PA 17013
(717)697-0371
,
By'
Dorrell C. Dethlefs, EsquIre
DCD:Ild
,>
'.', .....' "
I ,
1
, "
., "
,
" n i;,'
,I ,"
'\ .', " . t,
" I
,,, ,j'
, , >Ii
, , ,
..-"'''''"'''''''. ,
, I I ':'1
) .... .
,
" I
;-j~,i~:l'"
'1111
"
'III
.
" ,
"
II,
, "
, ,
,';
"
"
.
"
,
,j....
:r:H:;n)
'.1
"
,j'
roo'
,
,
"
, ',I'
,
''':f'(
"
:r...,"",
,"
ii,
I
;,+
"
,~ .. '_ .\",".';.'T
..;.~_u..~f
. ,
\1
"
,
"
, '
II'
k
"'J
V,.'"
(~{,:,
r,M
.M"
,YJ
,.il!./~j
/..-',"
,1,il,
',.\",
:ll,L,;
':Ii'h
!-'!;J
rL~
~~!i!
J,'(~
:1\,,,
r~Yr,
"~i~1
1:,'11
;.f:;;
~j;, \)
,I',
'J'; \'.~
,! ~
"
CERTIFICATE OF $ERVICE
AND NOW, this .tA~ day of ~, 1996 I hereby certify that I have
served the foregoing Answer with New Matter on on the following by depositing a true and
correct copy of same In the United States malls, postage prepaid, addressed to:
Darrell C. Dethlefs, Esquire
Wagner Building - Suite 205
355 North 21st Street
Camp Hili, PA 17011
Dated: C( rz.,~ / q it
~. ,,-.. . . ~...... ........ .-
.
I,
(,
I
I
.
,
,
TAHI HIINTZILNAN
Plaintiff
VS
I IN THI COURT or COMMON PLBAS
I CUMBIRLAND COUNTY, PINNSYLVANIA
I
: CIVIL ACTION - LAW
I
I NO. 96-2863
I
STIPHIN ODIORNB
Defendant
VS
I JURY TRIAL DBMANDID
I
I
I
n .a c?
<, <.i'
: . c::I '.I
....,:/., q ';1
U\I" :....
.;.:.~ :14' N
'I' r, "
/1. - , )
-, . '1
r:',; ";.' .". I.
;I:~(' , :~ ',}
a:l - ~
., .-
?~:. .. ~
N
::.J 11'
MAlUt I. HIINTZlLNAN
Additional Defendant
PRAI!lC I PI!l
To the Prothonotary:
Please attached the following corrected Notice to the above
Additional Complaint filed in the above matter.
Respectfully submittPd,
NBALON & GOVER
By:
Matthew R, Gover, Esquire
Atty. I.D. #47593
301 Market Street -- 9th Floor
F.O, Box: 865
Harrisburg, FA 17108-0865
(717) 232-9900
ff~4,."
\
-'
TAMI HEINTZELMAN
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 86-2863
v,
STEPHEN B, ODIORNE
Defendant
v,
JURY TRIAL DEMANDED
MARK E. HEINTZELMAN
Additional Defendant
NOTI{:E
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses 01' objections to the claims set forth against you, You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Cumberland County Courthouse
Courthouse Square
FOllrth Floor
Carlisle, PA 17013
717-697-0371
J
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO. 1996-.a863 P
CONNONWEALTH OF PENNSYLVANIA,
COUNTY OF CUNIERLAND
B~INTZELNAN TAftI
VS.
O~IORNE STEPHEN I
R. Tho... Klin. . Sh.riff, who b.ing duly .worn .ooording
to l.w, .ay., that h. .ad. . dilig.nt ..eroh end inquiry ~or th. within
na..d d.f.ndant, to wit. HEINTZELftAN ftARK E
but wa. unabl. to 100et. Hi. in hi. bailiwiok. H. th.r.for.
d.puti..d th. .h.riff of DAUPHIN County, P.nn.ylvania.
to ..rv. th. within WRIT OF BUftftONli.
On Oot.ob.r 28th. 1996 thi. offia. we. in r.o.ipt of
th. ettaoh.d r.turn fro. DAUPHIN County, P.nn.ylvania.
Sh.riff'. Co.t..
Dook.ting
Out of County
Suroharg.
DAUPHIN COUNTY
So .n.w.r..
18...
~::I
38...
#'.....
H. tho.a. Klin., Sh.rill
.b7.~~ NEALON & GOVER
1./28/1996
Sworn and .ub.orib.d to b.for. ..
thi. ; I......... dey of {flc..C "-L...-
19 'fl. A. D.
Y"tL' ~, n.l,H,~ L'Pr:(
rO~hono~ar, .
Office of the Sheriff
Mary Janfil Snydfilr
R..t estelo Depuly
Ralph '3. McAIII~"llr
C~iot D.,puly
Mlcha"l W, 1llnehert
ASIIIslor' CN.' De~.ly
William T. Tully
Solicitor
()n'.Jphj., COlJnly
tiftrn6bur(J. Ponr'li~l\ltll'I'ft 17101
(1") nb 2000
J, R. Lotwic::k
Sheriff
COMMONWBALTH OP PBNNSYLVANIA
COUNTY or DAUPHIN
SHIRIFP'S RETURN
No. 0184-'1 - - -96
AND NOW, October 15, 1996 served the within
COMPLAINT " NOTICB upon
HBINTZBLMAN MARK B. by perllona:'ly handing 1:0
HEINTZBLMAN MARK B. 1 true uttllsted copy!ie") of
the original COMPLAINT" NOTICB and making known to
him/her the contents thereof at 542 MOORE ST.
MILLBRSBUR(\, PA 17061-00CO
Sworn and subscribed to
01o/fv(lore e this ~H d~)f OCTOBBR" 1996
III ( -I' /). : '
" - . v./U./l(4)
PROTHONOTARY
SOf~
l'if.f of Docphin County,
PI) .
BY [)~#!; ;;~,
- DEPUTY SHERIFF.
Sheriff's CostRl
$38.00 PD 10/04/96
RCPT NO 084669
In in€: C::urt d C::mmC;-i
;:t.::-~
. .---
.
or
.. r, .;
\...:'::-. ~:"-.:;:~l=:1:: \,..:;r..:,-:;":y,
~'C.""""<'yl' --i_'
,....",....., 1--."....
St~phen B. Odiorne
,.~
'..
Mark E. Heintzelman
='e.
96-2863
Civil
Term
~
::-
~CW,
October
2.
1996
:9_!.
C:"'~":~"='
----
c'= C~G!:=...!.A..\-:)
CO~~":,?, ?..-L. t!=
::-..:! c!.:F..:= 6: :=-= ci
Dauphin
C.::-..:.:::: ::) ===-.::.: :!s ',V=-::,
..
=:.:
. ,
,,-..---
-:-..---
....t.... _....:. :2.:.
"--
.to.
-
-.-
...~_.
,
:::::.
~ ~f
,
.-.
-
':f,,:._'=
.--.
..., /' ../.",;/'
~~~~~~!'~
~c:"'~ :~ o:==c"..:.:~ C.:c:y, ?:..
ASda-nt or
C::::..~,.._
....-. '.--..
:0 :':"'-N:::'
t':....# d
C:~~:r, ::.
CC:::':'.J
5w-::::::.: :.:==-~ :e=:-::
:::~(',,-:a
s
=:~
~::!
l~_
~C-1.i.-:i::
A.: : _' ,J.. ..,-:::
s
t_ "_w.
11. Denied pursuant to Rule I029(e),
12, Denied to pursuant to Rule I029(e), It is further denied that there can be any sole
liability as to Statute of Limitations expired belore this joinder complaint was flied; alternative,
new mailer hereto is incorporated by reference,
WHEREFORE, Additional Defendant, Mark E, Heintzelman, denies any liability to the
Plaintiff or liability to or with the Additional Defendant, Any liability on his behalf being hereby
expressly denied,
NEW MATTER
13, The incident referred to in the Complaint occurred on or about May 23, 1994, but
the New Maller asserted by the joining Defendant was not filed under on or about September 26,
1996, more than two years following the accident and therefore any allegation of sole liability is
prohibited in part by the Statute of Limitations,
14, Appended hereto, marked Exhibit "A", and incorporated by reference is a true and
correct copy ofa Pro Rala Joint Tort Feasor Release executed by Tami Heintzelman, in favor of
Mark Heintzelman, which is pleaded as a defense to this action, both as to the claim ofTami
Heintzelman as well as the claim of Stephen Odiorne,
15, While Exhibit "An hereto speaks for itself, it is averred that pursuant to the
Release the answering Additional Defendant, Mark Heintzelman, can have no further liability to
2
Taml Heintzelman pursuant thereto, and there exists no claim for contribution and/or Indemnity
from Steven Odiorne. Stephen Odiorne is only liable for his own percentage share of liability to
the Plaintiff. the answering Defendant's liability having been extinguished by the terms and
"
provisions of the Release,
WHEREFORE, Additional Defendant, Mark E, Heintzelman, denies any liability to the
Plaintiff or liability to or with the Additional Defendant, Any liability on his behalf being hereby
expressly denied,
Respectfully Submitted,
CALDWELL & KEARNS
_.~--
By
I.' ark
1,0, No, 27758
3631 N h Front Street
Harrlsburg;PA 17110
(717) 232.7861
Attomey for Defendant
'Dlted: ~'u... I".', ':'
80321
,1996.
, "
3
'''''''11,.
"
, . ~l
,t,
.,
(.,j,!;,
ll,.:"
lilt,
: I "~
"
"
1,
,
'''('''i,
'r, L
i_lf- ir
,I I',
",!
\
I~ I,
'- r t
';'j"
, ,
"
""
,"1'
"
f
,I' "
'1
I,
: t ~'
,I
,."1'
"
"
,
\
, Exhibit 11
.
,
I,
I
,I
"~--'''~~-~-:-:,-;~r: ."-",'~"04,'~''''':'
"
,
.-"
o.\~.l" ,
. ',',., . ", .. ,..~
I ,\,.;.,..\,,~ .'11 .'. ~. __ 01,
. .
~.,'.''' I
, ,
.JOINt TORt F(AIIO_II R[lIASI
kllOW ALL "Ell lI' THEil PIESEIITS:
THAT '01 AIID III COIISIDEIATtOIl 0' THE PA'1lE1IT TO "E 0' THE SU" 0' 16,000,00,
I, IEALIIIIII THAT THEIE IS DOUlIT AIID UIICERTAIIITY AS YO THE IIATUIE AIID EnEIlT
0' "' IlUUIlIE!l, LOIIEI AllD OAMIEI AllD AS TO THE LIABILITY Of THE PA'OIl,
HEIEIIIAnEI DESCIllIED, AIIO THAT SUCH 'ACTS All ALSO III DISPUTE, I, BEIIII OF
LAW'UL AlE, HAVE llILEAIED AllD DISCHAIIED, AD lI' THESE PI(IIIlTI DO 'OIl
""EL', "' HEllS, EIlCUTOIlS, AD"IIIIITIATOIS, AllO ASSIIIIS, IELUII, ACQUIT
AIID 'OIEVEI DISCHAIIE "AIltC HEIIITZlL"A11
AIID EIIEIIISURAllCE IIOUP AIIDIOR THEil "ASTEI, UIVAIlTS, AIEIITB AIID O'flCEII
(All' AIIO ALL OF WlIOtt AIlE HEIEIIl REfEIlEO TO AI THE PA'OI). TW:II "'11,
IEPIESEIlTATIVES, SUCCE8IOn, AllD ASI..IIS 'RD" AllY AIID ALL ACTIOIII, CAUSES
0' ACT 1011, CLAI"S, DE"AIIOS, DA"AIES, COlTS, LOBS Of SEIVICO, IIPIIISO,
CO"PEIIBATlOII AIIO ALL COIIIEQUEIlTIAL OMA8E AIID ALSO YO THE nrElIl Of THEil
LIAlIILlrY '01 COIITIllIUTIOIl TO Ally-atHER .J011IT TORT fEASOI. ARlillli'QUT Of 01 III
All' WA' SlOWIIII OUT Of All' AllD ALL kllOWII AIID UllkllOWW PERSOIIAL IILJUlIE. AllO
DEATH 01 PIOPERT' DAMllI RESULTlIII OR TO RESULT '10" All ACCIDlIlT 1llAT
OCCURIED 011 01 AIlOUT THE 2:5ID DA' 0' M', 19H.
I IESEIVE THE IIINT TO MICE tlAI" ASAIIIST All' AIID EVElY OTllDt PEIIOIl 01
EIITITY AIID IESEIVE ALSO THE IIINT TO "AkE CLAI" THAT TIll" AIID IlOT SAID
PA'OIS, ARE SOLELY L1AlILE TO HI 'OR "' '".JUIIES, LOSIIS AllD DA"AIII.
ADDITIOIIALLY, THIS IELUSE DOIS 1I0T APPLY TO A CLAI" '01 fiRST PAllTY IlIIl1f1T1.
III THE IVEIlT THAT OTHER TORT fEASORS AlE IEllPPIISllILIE TO "E fOIl DAltAIES AS A
IESULT OF THIS ACCIDEIIT, THE EllCUTlOll Of THIS RELEASE SHALL OPEIATE AS A
SATISFACTIOII Of "' CLA'" MAillOT SUCH OTHEI PAITIES TO THE nnllT Of THE
IELATlVE PIO lATA SHARE Of COltttOll LIABILITY Of THE PA'ER HlIEIII RELEASED.
'.
'F IT lIIlOlILD APPEAl TO BE AD.JUOICATED III All' SUIT, ACT 1011 OR PlOCIIDtlll,
HOWEVER, THAT SAID PAYOI AllO OTHERS WERE SUILTY 0' .JOIIIT IIEILISERCE WHICH
CAUSED "' IllJURlES, LOSSES 01 DA"AlES, III OIDEI TO SAVE SAID PA'OIl HAI"USS,
I, AS FUlTHEI COIIIIDEIATIOII 'Oil SAID PAmEIIT WILL SATISfY All' DE CII II,
.JUDIKEIlT 01 AWAID III WHIC1I THERE IS SUCH f1I1DIII6S Of AD.JUDICATlOII IIlY0LVIll8
SAID PAYOI Oil THEil IlEHAL' AIID TO THE EnEIIT 0' THEIII L1AlIIl.m fOIl
COIITIllIUTIOII, If IT IS HELD THERE IS All' LIABILITY 'OR COIITIllIUTIOII. 'URTHER, I
WILL I"OI""IFY AIID SAVE 'OIEVER HAI"LESS SAID PA'OI AIAIIIST LOSS OIl BA"AIE
IlECAUII Of All' AIID ALL fUllTHER CLAI"S, OIMIIDS 01 ACTIDIIS "ADI lI' OTHEI. 011
ACCOUIIT 0' 01 III AllY "~I IISULTlII. ,"" SAID IlUURIES, LOSSlI AIID
DAMIEI, IKLUDIIII 11Ift AllO ALL CLAI"I 011 L1EIIS AIISIH OUT Of THE PAYflEIlT BY
All llISUlAIICE CAIRIEI Of Ntf "EDICAL Ell'ElllIS OIl OTHIII LOSS IIlCUIIEO lI' "E
IESULTIIII 01 TO IESULT '10" THE ACCIDEIlT THAT OCCUlRED 011 OR AllOlIT TW: 2:J1D
0' "A', 11111...
IT IS UIlDEISTOlJD AIID AllIED THAT THIB IE LEASE IS EXECUTED AIIO DELIVERED III
ACCOIDAIlCE WITH THE "UllIfDI" COlfTRIIlUTIOII AltOllI TORT fEASORS ACT".
J,'
t J. ~,..;. I ,
MAR 2 2 /!i.lj(,
, . ~ . . .
\
THIIIPECIAL IUlAIE, COIIIIITIIII Of TWO PASEI, COIITAIU TIlE EIITlII A8I1E"EIIT
lIlTWlllI THE PAITIII HEino, AIID THE TIll"1 0' THII IELEASE AlE COllTRACTUAL
AIID IIOT A "EIE IECITAL.
THE ACCEPTAIICE 0' THIS IELEAIE SHALL 1I0T OPEIATE AI All AD""SIOIl 0' L1AlIILlTY
011 THE PART Of AII'OIlE.
I 'UlTHEI STATE THAT I HAVE CAII'ULL' lEAD THE 'OIE'OIIlS IELEASE AIID kllOW THE
COIlTEIlTS THEIEO', AIID 111111 THE IA"E AS"' OWII 'In ACT.
I.J III WITIIESS WH EO', I HAVE HElEUllTO BIT "' HAIID THIS ~ DA'
"ARCH, 198
OF
--
., .
'U
2.J
I HAVIItl'AD Allin
UNDIIRTDOD THIS ..LIASI
ADDIUS:
r't" I'd 'a >':"" ~ i
- '" ... --t 3..
P', ll(,\'~ ,,:uK(1 I-;...\~I
, (J,)\. \4
TA"I HEIIlTUL"AII
.~
WITIIEBS:
'.J
u
ADDIESS:
.", C' "l '~ 1M..
~-'I\. "" - ...'
,
1",
,
CERTIFICATE OF SERVICE
I hereby certify thlt 11m this dlY serving a copy of the foregoing document upon the persons
In the manner Indlceted below, which service satisfies the requirements of the Pennsylvanll Rules
of Civil Procedure, by depositing I copy Clf lime In thlt United Slltes Mall, Harrisburg, Pennsylvanll,
with flrst-cllss postage, preplld, as follows:
Darrell C, Dethlefs, Esquire
LAW OFFICES OF DARRELL C, DETHLEFS
Wagner Building, Suite 205
355 North 21 st Street
Camp Hili, PA 17011
Mallhew R. Gover, Esquire
NEALON & GOVER
301 Market Street, 9th Floor
P,O, Box 865
Harrisburg, PA 17108-0865
By:
CALDW~LL & KEARNS ________.
. I . \,-------
,/
,
Timothy I. Ma Esquire
Attomey 1.0, 21758
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661 .
Attomey for Defendant
Dated:
50321
)j"r'.-l' i'l
j' -'J" I 1996.
s
TAMI HEINTZELMAN, I
Plaintiff I
I
v, "
.'
I
STBPHBN B, ODIORNE, I
Defendant I
I
v, I
I
MARK E, HEINTZELMAN, I
Additional Defendant I
IN THB COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PBNNSYLVANIA
CIVIL ACTION - LAW
NO, 96-2863 CIVIL TERM
AND NOW,
ORDER OF COURT
this 2.1. ~ day of February,
1997, upon conBideration
of Defendant'B Petition To Compel AnBwerB to InterrogatorieB and
ReBponBe to RequeBt for Production of DocumentB, a Rule iB hereby
ISSUED upon the Plaintiff and Additional Defendant to Bhow caU8e
why the relief requeBted Bhould not be granted,
RULE RETURNABLE within 20 daYB of Bervice,
BY THE COURT,
Jr.. i-
Oarrell C. Dethlef8, E8q,
355 North 21Bt Street
Wagner Building - Suite 205
Camp Hill, PA 17011
Attorney for Plaintiff
Matthew R, Gover, EBq.
9th Floor, 301 Market Street
P,O" Box 865
Harri8burg, PA 17108-0865
Attorney for Defendant
Stephen B, Odiorne
Timothy I, Mark, E8Q.
3631 North Front Street
Harrisburg, PA 17110
Attorney for Additional Defendant
Mark E, Heintzelman
Ire
I'~-".~..... rp'(l"J,,, .:J./:J1t> "'..., )
~r ,.;61,
'-"\"">i"__,',:\1:/:',_-
" '-"~'Jflb\'--'J:""I_'
l~Li!\.\! ':'-~t\,I;" ,
'1':;';;:<':1",,_, " 1,,\,
j>\'ihJ~~l-'.': I~"h"llt,. ~
,,~,I lj, "','), ,,:';':'
{\lhqWJ'I'fll'" r"
~jl(ltl\\'.:-),_:'j~rY);:'1 ii', I 1
Ilf~~I'~lVh__ t'A _"~I ',. ',ili_I'\1
- '.1(.lil:wtr,)!N';i~;" ';I'~...;i',':I:' '! ',I'
Iii ";'('1""'-' (-"':\\'1 "
.fJ-tV/iT:!':.:;':., ", '-'\ltL~\;JL'
, 1 ~',/., i')lh, "L':"~:'iii;."i:!,li ,
1 /')'\ "li"r,if""!I'j/I(;, '-lL ,'j,Hl';,
ft)l~~,';J\-!':I)~.j'I(,_,' ,r,',)'::- ,",0:: \],/,
.,]1, -rl" f,." ',' _,-1\' d, '_-'.1" 'F'" .,'l"
t 'IV, ;,"'r:I'--.~ ,""-" -:'J,':_",',.' '~".:.: ',' ',:: '_,',",'
.!,(C','" ,," "/";/'''" ","'"
'IrJ,;~,jrjl\il,r' V ."':i'Il.',l;: "
;)~liir;~IP:I',\:" ,',
"('iJ4j'-JL,,' l;h,~ ""'J'
iklkl'~PI. ",1,1'_, i.1
't" \,:',1 ~\I<_: 'if
,'Jlltr- "-'ul'.:.'. ",:.. < "
. - _~ihq,:;l:;/'l::':':""1 '>L "I,!:,;,
' ',l'l'lh','I ':,"1', ," ','I
,1,",11,",'0; "", 1'\"""" '" i
I}-,,:_,,:.td, ''If.'''l/-:'t " 'il /',j
I!'';:'"''''!''' :.... ,,' I "
~I'" " I' l'" ',' , ' , , '" ,:
' 'I"~" '" , I., ".. " ,,~, , " '
,,\K('{ \, ',;' c.n ',' \ ,," 'I_.:_:"J",.,"
~'.I::/;'I'I ,;i; ':'If"''''''II~'~~':-!._''''-
'~; i.,
,.~\
,
L _t.
...
I
,
'II,"
,
"
"
I,
, ,
,
'f',
I,"
'"
1,,1
,
.'
il
..
"
,I'
"',11,
"
'1,
~.
\' ,i', ',r
'I,
.
"
",,{,
\1".
',\','::; I:'
'~Jl'I!_~-i1
':,1 - 'i'~~,~ I'
'I ' ,:,~. ',_ /"" '1'-: ,\.
1,1 ,I, .1,'N111't,l,1
!' ,1;_\, ;_p:,~\~ ')
i',' :i"',l"'':!h'i'' t
'.' l'I_.Il,'., "':"_1'(1, ,:.,t.
~ ' '1'\,,:'" "'J,..
~ "II"'c:"'~':::'""
! ")' ';";ily.i'I,I'\!':'#1
1'1 \ ,1, "_\,-,}iA1i\W'_'
' '" ':I<';'\';~ll!1 I
I" IH ,'I.. 11 ~l 'I ~;. {,
""""'I,U\:!,II)Hf.r- "
'I Ii . 3', I' ~f~~t<\'~ffl'j~1 Ji
' I 'I, -,' ,; "t't.~ ~Jt\ l~
'OJ , 'lc"':..:.l'lJ"li1 l{l'll.\l l
Ii!., )d?\-'f'.J.11tf1'iJ1 '
,J, ',,;' I.l''':d\'~
' '" 'i 'l"~' 1,,1;.,;.'" ;')1
,!'~, 'j/'!;~i;\!~ik!r~i~11 '.,
!11~r\~'~ ~~vr,'tj;;;;iV.!fI1\ ~
l;"~AAr'r1 :"'-,1.I11\~~tI~"( !
: 'X':ri/,\I,il,t<,):,,:;':-r.,'lt!Mi:Jf: V,
l~ a ' .~ . . ;;1\"'J,!\~/' "t:,~.~I~ \ \\, \':
" /,;~,~;t, ;.'(fJi~':' ,
'''''/'''''''' >'~'r.R'"
\;~':I:;J>f;,r ~i~
~:":'\l':~/~' t:"f{I,I:,', _.~.~t ',~
,f',,'!, l',ij,-_;,l-t.n'I'~;\"""'{)
,i,1 :,"')" _'.. ~ \Vi-'>, :.I~~
' " f ,. -: -' ,. -~. ,t. ':'.:'J ','"
'\ ;:-, I t.I'.....1 "1,,'1" '~.
'J":"--:l"'AI_;'~'_'I!I';
"';.',j" '\' U;'it'~L"~ j'/'i
L;: II ,.; ,~t'J'. ~. .. i ..:. ':'"
!,I",..,t.'" '-il:/~", (, .~
",';:1.._1<;"1, , }"Y
, ",I, "'('Ii ""t ',I
''i,11Y'''-~> , 'u " ~,
j';I"""l
f~> 'J',~,,~,
h ~ ,','r'd.fll,,\, It
f'~ ' :lJ" \" a:.~.l.,,,,
h.~,~t" ~It ',~r'1f' l. ':~,
'~f1~:";',.' :'~"'1(
I ' t, ~' ,
, ~: ~ ,,';:,. "
';j!~~" ""'I;l~
f I ~ . ~ ' 'I t' I f_
l. ", 'to' ~..,' '
I)~ ~ ~ 'J '. "I ~:',
lit-'"r, '.. I, '.
L. '1"i"1 ','~ ,,,
r.., I'. I " '
ll'Jli' i1.;[ . .. ',\ i~ :1'
I'a ....' I .!JI'I
",~"t:.. '.. 1" : ~.\" "
I I.' II'-."l "I" ,
..'It*'" ,",.:.J"
".,\' , IF~I ld~
f'~l..,Ji4~~:'I~: '
.. ""~':l .,1, "\If
:' ". . '.' 'I' . ~";i
" .,~' ""I,
~"'.:",.",:.;. \~ll_....~;\:,
:\~,"'I '. I"':',"',':::{
hi/, ,_ "", "'}!':'..
'I ,,',." '11":":"'1,.
' . \(" ,
,~ '~,', :~'
I. ~L' ~ . 'II' ,'~ .' . I '
", I 'II'J.,
"
;;'
{'I
,
I,'
. tit'
,
I II
"
,'II, ','
I,:
,
"
i,
,I
,,~_Jll
IldIlIlI A ,
,
"
, "
,
,
I ,
,
"
,,1" '.'
, ,
, \,
,
,I' 1"1
,
,
, ,
,
I' I,
"
'I
"
'"
"
"
'",
"
('
"~I
1'-'
,
"
;')
"
;1'
"
'I
,
,'I
'i
JII'
"
'i'
,
i'i"
'"
-'I,
"
,
,
,
"
"
"
"
,
';1
'I
"
,
.',
,
'I."
"1'"
, ,
"
".1
"
'l_,',i
"
,
,,'
"
, ,
'I,!
'"
ii,
)1
I'
"
,
"
, ,
'I,
",
,
,
'"
"i,
','
'1,'
,,.
I,',
"
,"I'
"
"
,
"
,1,:,./
1\"1, I
IJ, \,'
.'1. \
,';
,.,;'
,I,
11,
;"
"
,
,I'
,
,
,,'
"
";
"
"
"
','I
,'1
"
1',;1
"
"
,
,
1,:
'ii'
..
"
, I
" I I
"'\
. ,., ~
"
,
:,11
il'l'
""
"
','.-1
: I ,!lIr _c~
'l"
1,'1t'
,
i
i!
"
"
"
,
,-,-.
"
/1'\,\";1
,. -I'
Ii '.,
", ',-' "'1 ;,~ '
)...".,."1,1
"
"
"
',-~'
I,:':V;:'"
\'1,.\ _'.' 1-,\'
..1,:_., ',"f';l,li<"
',' 1 ,I: '::')(::',;';;~/i'"
,\1 I L', '-I' ,j,:q;jL':.I'I"\ 2~; I I ,',
;L~:, ',,", ': ,!~~,' ".:i!W;i":~j\'!':<,; ;-,!:,:-~~~g :,~,t,
"',f.;
'"
"
,I :,
"r ! i'
j'"
",
'"
"
"
,
I..,
" _\,:"
"
"
I
"
I,
':;,
'I
.
I" ,..
',,)
...
"
" "I
.'.", ,'"
"
,
...,. ~
,
'"
'i,
,!I
"
,
II',. ,"l"
,}.
',I '.~'
Ili,l\\/.;:h
II I, 'I,,,'
>),1
:;'1,)
'- !, : [ " j ~
"
"
"
"
", , ,
, "
, ,
I, "
,
"
;',',Ii,)
r;-' ),'1-,',
'(~r\'\}",
d"),,I,_"':'
t_-,'h'"
~,-\ II
,\\;l"I(
"
\
"
I'."
"
,
,
" ,
"
"
,
,
;\
\.",
.,11
I,
,
',I,
','
,
I,',
"i'
-,.:-y',';-
,....,\..
'(., '1
"I,d.
.,'- .
'l'
,
~"".l.', '
"
,
"r"'"
I"
\.-,';1
,'I
",
"
.'
~, ~,,\,<
.......1'-
,
"
'!
"
,
,
",
.;.;".,l:,,'!\ I
'\'; :~ .r~'i.J ' , I' '
, '....'\",,',
",." I
,,',1'
"
, ,
"
"
" ,
"
,
.1\\\
\'. '
,'.,' ",
~ 'i
..'( \',-'
lil' "
"
'I
':
1:\\ )~"
i,
I
.
"
';'
,,1.\'
,"
,I
"
t"
:;;"..\r.... ,\,
,
'.,' I.~.
\",1
1\)(
,,'I;!' 'II
,', '," , ."
. . '\ ,\.'..'.!_,.._.......,...l~j~......
,'I' \ ~""""i""""~'~'
"
,
.
"
"
,
\
. '
, .
, ,
"
,,,
"
..
"
'I
,
.,'
I
,I
"
,
"
, \
-
"
"
.'
"
,
'II"
,
.
'\, \
.'
I'
l'
"
, ~ I \ I
_,.1
, ,
\"1\
,
I."
"
\ ;, ' \~
I ,.,~\ \ ',' 'I t,l,. .
\" ",' ",
__........ C .., ,\ , ," '
~.. '-.:.-~~:,~~..\\_;j...~ll
"
Ir
"
,"
"I
.'
"
\'
"
"
, ;,
(:,
,
I'.,
,.',
\;.
'\ .'
,
,
\ ~,' \ , I ~ '
, '
. ,
, '
"
,
WHEREFORE, Plaintiff respectfully requests that this Court deny the Petition to
Compel since the discovery has been complied with,
Res fully Submitted'
F
By:
Date:
~( '2,,'17
Darrell C. Dethlefs, Esquire
Attorney ID No, 58805
Wagner Building - Suite 205
355 North 21st Street
, Camp Hill, PA 17011
(717) 975-9446
"
, ,
TAMI HEINTZELMAN,
Plalntl"
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION. LAW
STEPHEN B. ODIORNE,
Defendant
: NO. 96-2863
v.
MARK E. HEINTZELMAN,
Additional Defendant
: ,JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this a- day of March, 1997, I, Darrell (' Delhl"t'II, ESllulre, hereby
certifY that I have this date served a true and correct copy of the lorelloinll Rf.SPONSI:
TO DEFENDANT'S PETITION TO COMPEL upon the Defendant'1I cc,unsel by
depositing the same in the United States Mail, first-class. pOlltllle pre-paid, and addrellsed
as follows:
Matthew Gover, Esquire
Nealon & Gover
301 Market Street, 9th Floor
Harrisburg, PA 17108
Timothy I, Mark. Esquire
3631 North Front Street
Harrisburg, PA 17] 10
Date: ,? I ~, '( 7
.-J.
By___ ,_.._",_____
Darrell C. Dethlefs, Esquire
"
1.
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
ro THE PIOl'HOOOl'ARY OF CUMBERLAND COUNrY
Please list the following case,
:1_\ ,'t
",
\ "I
,
(Check one)
x
for JURY trial at the next tenn of civil court.
"
't\ --'
"
.,
l: ;,
",
,
. ~
:'1~
for trial without a jury.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -. - - - - - - ,. >
CAPTION OF CASE
(entire caption l11.lst be stated in full)
.. ~J
(check one)
TAMI HElm'ZElMAN
(xl Civil Action - Law
Appeal from Arbitration
(other)
(Plaintiff)
vs.
STEPHEN B, ODIORN
The trial list will be called 011 10/14/97
and
(Defendant)
Trial.s comnence on 11/10/97
Pretrials will be held on 10/22/97
(Briefs are due 5 days before pretrials. )
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
vs.
MARJ( E. HEIm'ZElMAN
No,
Civil 2863
_19 96
Indicate the attorney who will try case for the party who files this praecipe.
Matthew R. Gover for Stephen B, Odiorne
(717) 232-9900
Indicate trial counsel for other parties if known,
Darrell C. Dethlefs for Tami Heintzelman (717) 975-9446
Tisoothy Mark for Mark E. Heintzelman
(717l~
Signed. 2~ ,4"",_
This case is ready for trial.
Print Narre. MaHh...., 1/ r"'VAr
Datel
C(fJ/lq ")
Attorney fon Stf'phAn R rr1inrn
TAMI HBINTZBUQN,
Plaintiff
IN THB COURT 01' C<MION PLBAS
cuMBBRLAND COUNTY, PBNNSYLVANIA
t
','I
v.
NO. 96-2863 CIVIL TERM
CIVIL ACTION - LAW
STBPHBN B. ODIORNB,
Defendant
: I
JURY TRIAL DBMANDBD
i ~
PLAIIIITI1'P I S SUPPLRMRIIITAL RBSPONSB TO IIIITBRROGATORIBS
PROPOUNDBD BY DB1'BNDANT
31. (a) Bruce Allen, D.C,
600 Union Street
Millersburg, PA 17061
(b)
Dr. Allen is expected to testify that the injuries
for which he is treating the Plaintiff were
directly related to the accident of May 23, 1994,
Report to be provided upon receipt.
(c)
Date: IG-11.'17
Dar C, Dethlefs, Esquire
Attorney ID No. 58805
Wagner Building - Suite 205
355 North 21st Street
Camp Hill, PA 17011
(717) 974-9446
"
I I
<~.
;',
TAMI HEINTZELMAN,
PLAINTIFF
V,
STEPHEN 8, ODIORNE,
DEFENDANT
V,
MARK E. HEINTZELMAN,
ADDITIONAL DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
96-2863 CIVIL TERM
IN RE: PLAINTIFF'S MOTION fOR A NEW 'tRIAL
ORPER OF COURt
AND NOW, this Q~ day of March, 1998, IT IS ORDERED:
(1) The motion of plaintiff, Taml Heintzelman, for a new trial against defendant,
Stephen 8, Odiorne, IS DENIED.
(2) The motion of plaintiff, Taml Heintzelman, for a new trial limited to
damages against additional defendant Mark E, Heintzelman, IS GRANTED,
"
By the Court, /
"-vM~
Edgar B, Bayley, J.
~
Darrell C. Dethlefs, Esquire
For Plaintiff
Matthew R. Gover, Esquire
For Defendant
Timothy I. Mark, Esquire
Additional Defendant
:888
e,M<........' f'Tt.aLLuL ~"3/~49 ~f"
Y\J ....l
.,~I .~
,~,
, I'
TAMI HEINTZELMAN,
PLAINTIFF
V.
STEPHEN B, ODIORNE,
DEFENDANT
V,
MARK E, HEINTZELMAN,
ADDITIONAL DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
96-2863 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR A NEW TRIAL
91?1NI0t<4 AND ORDER OF COW
BAYLEY, J., M.rch 18, 1998-
On November 11, 1997, a jury returned a verdict In this automobile accident
case finding that (1) defendant Stephen B, Odiorne and additional defendant Mark E.
Heintzelman were both negligent, (2) only the negligence of the additional defendant
Mark E, Heintzelman was a substantial factor in bringing about plaintiff's harm, and
(3) plaintiff, Tami Heintzelman, sustained no damages as a result of the causal
negligence of her husband, the additional defendant. Plaintiff filed a motion for a new
trial.
Plaintiff and additional defendant testified that on May 23, 1994, at
approximately 11:50 a,m,. plaintiff was a front seat passenger in an automobile driven
by her husband the additional defendant. They were on Route 22 eastbound In
Dauphin County, Pennsylvania, Mark Heintzelman testified that Route 22 had three
eastbound lanes. Plaintiff and her husband testified that they were in the middle lane
of the three eastbound lanes, They were going to a Silo store and were Intending to
turn right at a traffic light at Devonshire Drive, Defendant Odiorne was ahead of them,
96-2863 CIVIL TERM
As they approached an entrance to a Pep Boys store to their right before the
Intersection of Devonshire Drive, Heintzelman drove Into the right hand lane of travel,
At that point, Odlome was about one car length ahead of him, Helntzelrnan started to
pass Odlome who was on his left side. Odlome moved Into Heintzelman's lane
approximately six to eight Inches at a point when the front part of Heintzelman's
vehicle was a little passed the back part of Odiorne's vehicle, Heintzelman believed
that both vehicles were going approximately thirty miles per hour at the time,
Heintzelman slammed on his brakes to avoid a collision. The vehicles did not collide,
however, Heintzelman's vehicle slid eighty feet into a curb at the end of the entrance
to the Pep Boys storo, Mark Heintzelman testified that he did not turn his wheels
during the slide because he did not want to swerve Into traffic on his left side, He
testified that he lost control of his car which caused him to hit the curb, He testified
that defendant did not signal when he changed lanes. Taml Heintzelman hit the
windshield when the vehicle came to a halt. Mark Heintzelman got out of the car, and
he talked to defendant. Heintzelman testified that defendant agreed with him that he
did not signal before he moved Into his lane of travel. Helntzelrnan further testified
that he made a decision to pass vehicles to the right of Odiorne's lane of travel
because he felt It was safe to do so, It appeared to him that the roadway contained
three lanes of traffic In the direction he was traveling, There was a solid white line to
the right of the far right lane, There were breaks In the white line at entrances to
businesses such as the entrance to Pep Boys store,
-2.
96-2863 CIVIL TERM
Defendant, Stephen B, Odiorne, testified that the accident occurred
approximately 250 feet from the Intersection of Route 22 with Devonshire Drive, As he
was proceeding east on Route 22 In what he considered the right hand lane of two
lanes of travel, he saw a Pep Boys store on the right where he decided to go to
purchase a battery, Defendant testified that as he began to turn onto what he
considered the right berm to prepare to turn into the Pep Boys entrance, he looked
over his right shoulder and saw the Heintzelman vehicle approximately two or three
car lengths behind him. At that point defendant believed that he was six or seven
inches Into the berm, so he stopped turning to the right. Heintzelman then skidded
all the way to the curb at the opposite end of the entrance to the Pep Boys slore,
Defendant testified that he believed that he had his turn signal on when he started to
turn onto the berm, but he was not sure, He said that he was going about 15 miles
per hour when he Initiated the turn onto the berm, He testified that he knew people
drove on the berm in that area as he had driven In that location many times.
Plaintiff raises two Issues in seeking a new trial. First, she maintains that the
finding of the Jury that defendant's negligence was not a substantial factor in bringing
about her harm Is against the weight of the evidence, The grant of a new trial based
on the weight of the evidence Is within the sound discretion of the court. Krymllakl
bV Krymlllkl v. Tlrllovlch, 424 Pa, Super. 121 (1993), The evidence supporting
the verdict must be so Inherently Improbable or at variance with admitted or proven
factS or with ordinary experience, as to render the verdict shocking to the court's
.3-
96-2863 CIVIL TERM
sense of justice. Brindley v. Woodllnd Vllllge Re.tlurlnt, Inc., 438 Pa. Super, 385
(1995), The Jury wu entitled to believe all, some, or none of the evidence. Rlfter v,
R.ymlrk Indultrle., Inc., 429 Pa, Super. 360 (1993),
In the case IYQ ludlce, there was a dispute u to whether the section of Route
22 on which Mark Heintzelman was driving when the accident occurred was II lane of
travel or a berm, The Jury could have concluded that It was one of three lanes
eastbound, or that It was the right hand berm of a two lane highway on which
Heintzelman was passing Odlome on the right side, The Jury could have concluded
that Odiorne only moved Into either the berm or the right hand lane six to seven
Inches at a point where Heintzelman was two or three cars behind him and that he
then moved back Into his lane, There was no collision, but Heintzelman stili lost
control of his vehicle and skidded eighty feet Into a curb, The jury could have
concluded that Heintzelman was traveling too fast for conditions, that he did not have
his vehicle under control, and that the negligence of Odlome was not a substantial
factor In causing Heintzelman's collision with the curb, Given the disputed evidence,
we are satisfied that the verdict that Odiorne's negligence In un safely moving to the
right wu not a substantial factor clullng the colllllon of the Helntzelmln vehfcle
with the curb at the end of the Pep Boys entrance, was not against the weight of the
evidence, See Roberti v. Dungln, 133 Pa, Commw, 98 (1990), The Jury's finding
does not shock our sense of Justice, Therefore, we will not grant a new trial as to
liability.
-4-
-'
, ,~.
96-2863 CIVIL TERM
Plaintiff further maintains that lhe finding by the jury that she suffered no
compensable Injury In the accident on May 23, 1994, Is against the weight of the
evidence and warrants a new trial on the Issue of damages, Oefendlnt, Stephen B,
Odiorne te.tl'led that when he stopped at the scene of the accident, It was evident
that plaintiff was In great pain from having hit the windshield, Plaintiff was taken by
ambulance to the Polyclinic Hospital where she was evaluated and x-rays were taken,
She saw her family doctor two days after the accident He prescribed pain
medication and later therapy for headaches, dizziness, neck and back pain, Starting
In June, 1994, plaintiff undertook physical therapy three times a week for
approximately two months, She received additional therapy In the late summer of
1994, On October 17, 1994, she went to a chiropractor, Dr, Bruce Allen, Dr, Allen
provided approximately 70 treatments the last of which was just prior to trial was on
November 3, 1997, Dr, Allen was of the opinion that the accident on May 23, 1994,
caused ,a multi-level cervical Injury to plaintiff, Dr, Allen referred plaintiff for evaluation
to Balint Balog, M,D, an orthopedic surgeon, Dr, Balog examined plaintiff In
November, 1994 and August, 1995, He concluded that plaintiff was suffering from a
cervical sprain, On November 10, 1995, on another referral by Dr, Allen, plaintiff was
examined by a neurologist, Charles Yanofsky, M,D, Dr, Yanofsky was of the opinion
that plaintiff suffered from a mloforcullnjury and probable cervical sprain, Dr, Balog
and Dr, Yanofsky were both called to testify by de'endlnt.
In Lewl. v. EVlnt, 690 A,2d 291 (Pa, Super, 1997), a jury found the defendant
-5-
96-2863 CIVIL TERM
to be negligent in the operation of her motor vehicle which involved a collision with a
vehicle operated by the plaintiff and that the defendant's negligence was a substantial
factor In bringing about the plaintiff's harm, The jury found the plaintiff contributory
negligent but found that her negligence was not a substantial factor in bringing about
her harm, The jury also found, however, that plaintiff sustained no damages. The
Superior Court In upholding a grant of a new trial on only the Issue of damages
stated:
Appellant next asks whether the court erred when It reversed the
jury's finding that Appellees had not suffered a compensable Injury.
Appellant notes that the jury heard conflicting opinions with respect to
Judith Lewis' physical condition after the accident, and that just because
the jury found that Appellant was negligent, they could have concluded
that Judith Lewis suffered from only Insignificant Injuries which were not
compensable,
In this case, however, both plaintiff and defense experts agreed
as to injury and causation, While the extent of the Injury was contested,
both experts Indicated that Mrs, Lewis suffered a back strain/sprain, In
reviewing the testimony presented, the trial court concluded tli::d It
demonstrated that Mrs, Lewis suffered some loss for which some
amount of damages should have been awarded.
In reviewing a trial court's grant of a motion for new trial It must
be determined whether the trial court clearly and palpably abused Its
discretion or committed an error of law. Thompson v. City of
Philadelphia, 507 Pa, 592, 493 A,2d 669 (1985). If support for the
decision of the trial court Is found in the record, the order must be
affirmed, Stevenson v. Gene,al Motors Corp., 513 Pa, 411, 521 A.~d
413 (1987). In this case there Is support for the court's decision found
in the testimony of the experts, There was no Indication that Mrs, Lewis
suffered only an Insignificant Injury, Rather both agreed that she
suffered at least some type of back sprain or strain, which common
sense would dictate would be the source of some pain and discomfort,
Accordingly, we find no reason to disturb the court's ruling.
In the case 1Im~, defendant acknowledged that plaintiff was Injured In the
-6-
_'_n_ 0-"",4_'_ _.._.
"
96-2863 CIVIL TERM
accident on May 23, 1994. The contested Issue was the extent and the severity of
those Injuries and whether some of plaintiff's complaints had causes other than the
accident on May 23, 1994, The only medical evidence presented was that plaintiff
suffered Injuries as a result of the accident. On these facts, we are satisfied that
plaintiff Is entitled to a new trial on the Issue of damages against additional defendant
Mark Heintzelman, The trial may be limited to damages because the Issue of
Heintzelman's liability has been fairly determined and Is not Intertwined with the Issue
of damages, Catalano v. Bujak, 148 Pa, ComrTIw, 269 (1992),
For the foregoing reasons the following order Is entered,
ORDER OF COUFlI
AND NOW, this '20 day of March, 1998, IT IS ORDERED:
(1) The motion of plaintiff, Taml Heintzelman, for a new trial against defendant,
Stephen B, Odiorne, IS DENIED.
(2) The motion of plaintiff, Taml Heintzelman, for a new trial limited to
damages against additional defendant Mark E, Heintzelman, IS GRANTED.
/,
By the Court,
,
,
-7.
96-2863 CIVIL TERM
Darrell C, Dethlefs, Esquire
For Plaintiff
Matthew R. Gover, Esquire
For Defendant
Timothy I, Mark, Esquire
Additional De'endMt
:188
" '
, ,
, ,
"
-s.
TAMI HEINTZELMAN,
Plaintiff
v,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 96-2863
STEPHEN B, ODIORNE,
Defendant
v,
MARK E, HEINTZELMAN,
Additional Defendant
JURY TRIAL DEMANDED
MOTION OF ADDITIONAL DEFENDANT, MARK E, HEINTZELMAN, REQUESTING THAT
THE COURT AMEND ITS ORDER OF COURT OF MARCH 20, 1998 CONCERNING
PLAINTIFF'S MOTION FOR A NEW TRIAL
AND NOW comes Additional Defendant, Mark E, Heintzelman, by and through his
attorney, Timothy I. Mark, Esquire, and requests the following:
1, Appended hereto and marked Exhibit "A" Is a true and correct copy of Judge
Bayley'a Order dated March 20, 1998 which denied the Motion of the Plaintiff for a new trial
against Defendant, Stephen B, Odiorne, but granted the Plaintiff's Motion for a New Trial limited
to damages against Additional Defendant, Mark E, Heintzelman,
2, Appended hereto and marked Exhibit "B" is a true and correct copy of the
Answer with New Matter endorsed with a Notice to Plead of Additional Defendant, Mark E.
Heintzelman, which, !.oW: 0:
a, In paragraph 13 pointed out that the Joining Complaint of the Additional
Defendant was not filed until September 26, 1996, more than two years following the accident
and, therefore, any allegation of sole liability of Mark E, Heintzelman to the Plaintiff Is prohibited
by the statute of limitations;
b, Appended and marked as Exhibit "A", a Pro-Rata Joint Tortfeasor
Release executed by Taml Heintzelman in favor of Mark E, Heintzelman which was pleaded as
a defense to the action both as to the claim of Taml Heintzelman as well as the claim of
Stephen Odiorne
c, Averred that pursuant to the Release, Mark E, Heintzelman could have no
further liability to Taml Heintzelman and asserting that the Additional Defendant's liability was
extinguished by the terms of the Release, leaving Stephen Odiorne only liable for his
percentage shar, of liability to the Plaintiff,
3, The Release referred to above was marked as an exhibit and entered Into tha
record of the cue but 'I nee the transcript of the trial was not requested by the Plaintiff, the
transcript page number cannot be provided,
4, The Order of Judge Bayley of March 20, 1998 should be amended, In light of the
foregoing to provide that:
a, While the Court would have granted a new trial limited to damages
against Additional Defendanl. Mark E, Heintzelman, In light of the fact that the Additional
Defendant was Joined after the statute of limitations and cannot be solely liable to the Plaintiff or,
In the fur1her alternative, in light of the Release executed by Taml Heintzelman In favor of the
Additional Defendant, Mark E, Heintzelman, all claims of the Plaintiff against Mark E,
Heintzelman are marked satisfied and discontinued,
b, In the further alternative, because the Additional Dofendant was joined
after the &tatute, there can be no sole liability to the Plaintiff, and because the Court has upheld
the finding of no liability In favor of Defendant Odiorne, no claim of contribution exists by
Odiorne by Heintzelman, and as well the Plaintiff previously released all claims against Mark E,
Heintzelman by virtue of the Release entered Into the record, all claims of the Plaintiff against
the Additional Defendant Defendant are dismissed,
WHEREFORE, Additional Defendant, Mark E, Heintzelman, requests that the Court
enter an Order modifying Ita March 20, 1998 Order, clearly Indicating that In light of the late
joinder of Mark E, Heintzelman, there can be no sole liability on his behalf In favor of the Plaintiff
and in light of the finding of no liability of Defendant Odiorne, no claim exists by him against
Additional Defendant, Mark E, Heintzelman, and therefore the case against Heintzelman Is
dlsmlsaed and requests that the Court grant such other relief as may be necessary, Just and
appropriate under the circumstances,
Respectfully submitted,
THOMAS, '{M(lf.IIAS & HAFER, LLP /
.--. ---"
By:
Dated: March 25, 1998
Timothy I, Mar, quire
Attorney I,D, N ,: 2 758
305 North Fro eet
P,O, Box 999
Harrisburg, PA 17108
(717) 237-7115
Attorney for Additional Defendant
:14111
2
,
"
!~~
,
'I
'1
"
':1
,
"
Iii'
'I'
J;;
i,1 ~ "
,I "
I
o.,j'l
'~
'I
,
I,.
:11
I,
1 !
\1
I
:l'lj
I]'
"~,'I
:'::,[
"1,:,
"I
"
,
, ,
",
,
"
",
'j
:,1
'.1"
'I
'\
"
"
t l'
,""
"
J'
ElIttIbIt A
.,:
,
,;,!;~t'~(lfit~~~jf,i"l~ji~~,f\<I,hU.~""""~
I I ,_. ,"
, ' ,
:!_':~
,
,
,
,
" ,
.
96-2863 CIVIL TERM
As they approached an entrance to a Pep Boys store to their right before the
Intersection of Devonshire Drive, Heintzelman drove Into the right hand lane of travel.
At that point, Odiorne was about one car length ahead of him, Heintzelman started to
pass Odiorne who was on his left side, Odiorne moved Into Heintzelman's lane
approximately six to eight Inches at a point when the front part of Heintzelman's
vehicle was 1:1 little passed the back part of Odlome's vehicle, Heintzelman lJ~lleved
that both vehlcllls W6re going approximately thirty miles per hour at the time.
Heintzelman slammed on his brakes to avoid a collision, The vehicles did not collide,
however, Heintzelman's vehicle slid eighty feet Into a curb at the end of the entrance
to the Pep Boys store, Mark Heintzelman testified that he did not turn his wheels
during the slide because he did not want to swerve Into traffic on his left side, He
testified that he lost control of his car which caused him to hit the curb, He testified
that defendant did not signal when he changed lanes, Tami Heintzelman hit the
windshield when the vehicle came to a halt Mark Heintzelman got out of the car, and
he talked to defendant Heintzelman testified that defendant agreed with him that he
did not signal before he moved Into his lane of travel. Heintzelman further testified
that he made a decision to pass vehicles to the right of Odiorne's lane of travel
because he felt It was safe to do so, It appeared to him that the roadway contained
three lanes of traffic in the direction he was traveling, There was a solid white line to
the right of the far right lane, There were breaks In the white line at entrances to
businesses such as the entrance to Pep Boys store,
-2-
96-2863 CIVIL TERM
Defendant, Stephen B. Odiorne, testified that the accident occurred
approximately 250 feet from the Intersection of Route 22 with Devonshire Drive, As he
was proceeding east on Route 22 in what he considered the right hand lane of two
lanes of travel, he saw a Pep Boys store on the right where he decided to go to
purchase a battery, Defendant testified that as he began to turn onto what he
considered the right berm to prepare to turn Into the Pep Boys entrance, he looked
over his right shoulder and saw the Heintzelman vehicle approximately two or three
car lengths behind him, At that point defendant believed that he was six or seven
inches into the berm, so he stopped turning to the right. Heintzelman then skidded
all the way to the curb at the opposite end of the entrance to the Pep Boys store,
Defendant testified that he believed that he had his turn signal on when he started to
turn onto the berm, but he was not sure, He said that he was going about 15 miles
per hour when he initiated the turn onto the berm, He testified that he knew people
drove on the berm In that area as he had driven In that location many times,
Plaintiff raises two Issues in seeking a new trial. First, she maintains that the
finding of the jury that defendant's negligence was not a substantial factor in bringing
about her harm is against the weight of the evidence. The grant of a new trial based
on the weight of the evidence is within the sound discretion of the court, Krymalskl
by Krymalskl v. Tarasovlch, 424 Pa, Super, 121 (1993), The evidence supporting
the verdict must be so inherently improbable or at variance with admitted or proven
facts or with ordinary experience, as to render the verdict shocking to the court's
.3-
96-2863 CIVIL TERM
sense of Justice, Brindley v, Woodland Village Restaurant, Inc., 438 Pa. Super. 385
(1995), The Jury was entitled to believe oJl, some, or none of the evidence, Rafter v.
Raymark Industries, Inc., 429 Pa. Super, 360 (1993),
In the case sub judice, there was a dispute as to whether the sectIon of Route
22 on which Mark Heintzelman was driving when the accident occurred was a lane of
travel or a berm, The jury could have concluded that It was one of three lanes
eastbound, or that It was the right hand berm of a two lane highway on which
Heintzelman was passing Odiome on the right side. The Jury could have concluded
that Odiorne only moved Into either the berm or the right hand lane six to seven
Inches at a point where Heintzelman was two or three cars behind him and that he
then moved back Into his lane, There was no collision, but Heintzelman stili lost
control of his vehicle and skidded eighty feet Into a curb, The Jury could have
concluded that Heintzelman was traveling too fast for conditions, that he did not have
his vehicle under control, and that the negligence of Odiorne was not a substantial
factor In causing Heintzelman's collision with the curb, Given the disputed evidence,
we are satisfied that the verdict that Odiorne's negligence in unsafely moving to the
right was not a substantial factor causing the collision of the Heintzelman vehicle
with the curb at the end of the Pep Boys entrance, was not against the weight of the
evidence, See Roberts v. Dungan, 133 Pa, Commw, 98 (1990), The jury's finding
does not shock our sense of justice, Therefore, we will not grant a new trial as to
liability,
-4-
96-2863 CIVIL TERM
Plaintiff further maintains that the finding by the jury that she suffered no
compensable Injury In the accident on May 23, 1994, Is against the weight of the
evidence and warrants a new trial on the Issue of damages, Defendant, Stephen B.
Odiorne testified that when he stopped at the scene of the accident, It was evident
that plaintiff was In great pain from having hit the windshield, Plaintiff was taken by
ambulance to the Polyclinic Hospital where she was evaluated and x-rays were taken,
She saw her family doctor two days alter the accident. He prescribed pain
medication and later therapy for headaches, dizziness, neck and back pain. Starting
In June, 1994, plaintiff undertook physical therapy three times a week for
approximately two months. She received additional therapy In the late summer of
1994, On October 17, 1994, she went to a chiropractor, Dr, Bruce Allen, Dr. Allen
provided approximately 70 treatments the last of which was just prior to trial was on
November 3, 1997, Dr, Allen was of the opinion that the accident on May 23, 1994,
caused a multl.level cervical Injury to plaintiff. Dr, Allen referred plaintiff for evaluation
to Balint Balog, M,D. an orthopedic surgeon, Dr, Balog examined plaintiff In
November, 1994 and August, 1995, He concluded that plaintiff was suffering from a
cervical sprain, On November 10, 1995, on another referral by Dr. Allen, plaintiff was
examined by a neurologist, Charies Yanofsky, M,D. Dr, Yanofsky was of the opinion
that plaintiff suffered from a mloforcullnjury and probable cervical sprain, Dr, Balog
and Dr, Yanofsky were both called to testily by defendant.
In Lewis v, Evan., 690 A,2d 291 (Pa, Super, 1997), a jury found the defendant
-5-
96-2663 CIVIL TERM
to be negligent In the operation of her motor vehicle which Involved a collision with a
vehicle operated by the plaintiff and that the defendant's negligence was a substantial
factor In bringing about the plaintiff's harm, The jury found the plaintiff contributory
negligent but found that her negligence was not a substantial factor In bringing about
her harm, The Jury also found, however, that plaintiff sustained no damages, The
Superior Court In upholding a grant of a new trial on only the Issue of damages
stated:
Appellant next asks whether the court erred when It reversed the
jury's finding that Appellees had not suffered a compensable Injury,
Appellant notes that the jury heard conflicting opinions with respect to
Judith Lewis' physical condition after the accident, Bnd that Just because
the jury found that Appellant was negligent, they could have concluded
that Judith Lewis suffered from only Insignificant Injuries which were not
compensable.
In this case, however, both plaintiff and defense experts agreed
as to Injury and causation, While the extent of the Injury was contested,
both experts Indicated that Mrs, Lewis suffered a back strain/sprain, In
reviewing the testimony presented, the trial court concluded that It
demonstrated that Mrs, Lewis suffered some loss for which some
amount of damages should have been awarded,
In reviewing a trial court's grant of a motion for new trial It must
be determined whether the trial court clearly and palpably abused Its
discretion or committed an error of law, Thompson v, City of
Philadelphia, 507 Pa, 592,493 A,2d 669 (1985). If support for the
decision of the trial court is found In the record, the order must be
affirmed, Stevenson v. General Motors Corp., 513 Pa, 411, 521 A,2d
413 (1987), In this case there is support for the court's decision found
in the testimony of the experts, There was no indication that Mrs, Lewis
suffered only an insignificant Injury, Rather both agreed that she
suffered at least some type of back sprain or strain, which common
sense would dictate would be the source of some pain and discomfort,
Accordingly, we find no reason to disturb the court's ruling.
In the case sub iudice, defendant acknowledged that plaintiff was Injured In the
.6-
"
,
',~' Ul'
i' ) q
"
.I ,
W' \.
t ;'
~1
r,{
1',:["
\:,"
I~!
,1
'I
, ,
"
,
,',
, '
'H I
"I
-',J.
"'',,/''
. ,"
" 'I
/\:
I'.
;/1,
i';i
,
j
;',j
, ['
, "
\ t' I
:::':'1
)f..
i,'ll,1
(",\
:"':,1
I'/t;
,_'rotil'
(/': I,;,
I '\1
I"" ,,:
l", t-
1/. \:
/"I,t
'il'l
, II I
[,'i.\.'!,__ \ " ,
"; J~di\'~\~"I:~I'''I\\
.Jl\;.~~~)\i C'; '" _,
J", ,
, "
,
,
"
"
, ,
, "
nL\S-:'I- 1'-
;,.
" I-,_~ ;'i-' ,:_'j'iilli'!.....\""-\I,I'rjVI~~Lkm'.'" ;",,,,.,
I ",..
Exhibit 8
r."(d
\'!'!J
i :; ~ i ' ,
.
__4 ,-__-_.._
"
, ,
,
T AMI HEINTZELMAN
Plaintiff,
v,
STEPHEN 8, ODlORINE
Defendant,
v,
MARK E, HEINTZELMAN
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
No, 96-2863
:JURY TRIAL
DEMANDED
NOTICE TO PLEAD
TO: Timmy Helntzelmln
MIl\hew R. Gover Esquire, Plaintiffs' Allom"y
YOU ARE HEREBY NOTIFIED, that the New Matter set forth herein contains averments against
you to which you lire reqlJlred to respond within twenty (20) days after service thereof, Failure by
you to do so may constitute In admission,
CALDWELL & KEARNS
J. 1MJv
By:
Timothy I, Ma Esquire
Attorney 1.0,11I27158
3631 North Front Street
Harrisburg, PA 17110
(717) 232.7661
Attorney for Defendant
Dlted: oj).,.,...>"" po. /.:?
80321
,1996
n \D ?
~ 0;;"
ctVi1 ,-.:7 ~I
1"'1
~i~: n
~. en ,:g
~.
~,. ~ '.
-- .~
r::...... ::5
,.,;;'
:>~ ~
w Q
,: .. ~
.,. I:"
-< C1\
11. Denied pursuant to Rule 1029(e),
q, Denied to pursuant to Rule 1029(e), It is further denied that there can be any sole
liability as to Statute of Limitations expired before this joinder complaint was filed; alternative.
new matter hereto is incorporated by reference,
WHEREFORE, Additional Defendant, Mark E, Heintzelman, denies any liability to the
Plaintiff or liability to or with the Additional Defendant. Any liability on his behalf being hereby
expressly denied,
NEW MATTER
13. The incident refmed to in the Complaint occurred on or about May 23, 1994, but
,
the New Maller asserted by the joining Defendant was nol filed under on or about September 26,
1996, more than two years following the accident and therefore any allegation of sole liability is
prohibited in part by the Statute of Limitations,
14, Appended hereto, marked Exhibit" A". and incorporated by reference is a true and
correct copy of a Pro Rata Joint Tort Feasor Release executed by Tami Heintzelman, in favor of
Mark Heintzelman, which is pleaded as a defense to this action, both as to the claim ofTami
Heintzelman as well as the claim of Stephen Odiorne,
15, While Exhibit" A" hereto speaks for itself, it is averred that pursuant to the
Release the answering Additional Defendant, Mark Heintzelman, can have no further liability to
2
.
,,'(J'~'"
t.J:1A."\Wlt'....tl~YIL~~
~""\,
, ,
.
"'Dun TOIIT "..0.& .fLI'AII
kllOW ALL "III lI' THill PR~IIIITI:
THAT 'OR AIIO III COIISIDIIATIOII 0' THE PA'/tE1IT TO "E 0' THE IU" 0' '6,000.00,
I, IEALIIIIII THAT THERE II DOUIIT AIID UIICERTAIIITY AS TO THE IIATURE AIID EnEIlT
0' "' IIlJUIIES, LOSSES AIID DAttAIE. AIlD AS TO THE L1AIILlTY Of THI P"'OII,
HIIEIIIAFTII DISCIIIEO, AIlO THAT SUCH 'ACTS ARE ALSO III DISPUTE, I, 111111 0'
LAW'ut. AlE, HAYE RELEASED A. DISCHAllGU, AllD I' THlSE PIESlIITI 00 '011
"'SIL', "' HEllS, EIlICUl'OII, AD"IIIIITIATORS, AllD ASSIIIIS, IELEASE, "CQUIT
AIID 'OIEYEI DISCHARIE ttAK HEIIITlIL"AII
AIID EIIEIIISUltAllCl GROUP AIID/OR THEil tlAITEI, SUYANYS, AllEIlTB AIID OFflCEl1
(All' AIIO ALL OF W~ AlII HIJlIEIII REfEIIU TO AS THE PA'OI), MIR HlIII,
IEPIESlIlTATIYIS, SUCCESSORS, AM ASSISIIS '10" AllY AIID AU. ACTIOIIS, Cltusn
0' ACTlOII, CLAI"S, DE"AIlDS, DIl"ASEI, COlml, LDSS 0' SERYICR, IIPusn,
CO"PEIISATIOII AllD ALL COIISlQUENYIAL D~AIE AIID ALSO TO THE IITIIIT OF THEIl
L1AlIILlTY 'OR CONYIIBUTIOII TO AllrtmlU JOIIIT TORT RAsolll AII'UhllioiiT OF OR III
All' WA' GROWlllI OUT Of' All, A. AL~ kllOWII AIID UllkllOWIl PERSOIIAL IlIJURl18 AIID
DEATH 01 PROPERT' DAtlASE RlSULTIIIl8 OR TO RESULT '10" All ACXIDEIrT THAT
OCCURIED 011 01 AlIOUT THE 2310 OA' OF tlA" 1994-
I IESERYE THE liGHT TO MkE ClAI" A6AIIIST All' AIIO EYER' OTHER PERSOII 01
ElITln AIID RESERVE ALSO THE RI6HT TO "AkE CLAI" THAT l1lI1, AIID IIOT SAID
PA'ORS, ARE SOLELY LIABLE TO tIE 'OR "' IIIJUIIES, LooSlS AND DA"ANI.
ADDITIOIIALL', THIS RELEASE DOES 1I0T APPL' TO A CLAI" fOl fiRST PAIlY lIEllIflTS.
III THE EVEIIT THAT OTHER TORT 'EASORS ARE IESPOIISIBLE TO "E '01 DAI1A8ES AS A
IESULT 0' THIS ACCIDEtn', THE EIECUTIOII Of THIS RILEASE SHALL OPIIATE AS A
SATlS'ACTIOII Of "' cu.1" A8AIIlST SUCH OTHEI PARTIES TO THE EITDlT Of' THE
IElATlVE PRO lATA SHARE Of COrtltllll LIABILITY Of THE PA'" HEREIII llELU.SID.
"
If IT SHOULD APPEAR TO lIE ADJUDICATED, III All' SUIT, ACTin 01 PlOCIIDIIII,
HOWEYER, THAT SAID PA'OR All) OTHEIS WEIE GUILTY 0' JOIIIT IIEGLlIlOll:l WHICH
CAUSED "' IIlJUIIES, LOSSES OR DA"A&lS, III OIDEI TO SAVE SAID PA'III HAI~ESS,
I, AS fURTHER COIISIDIIATlOll FOI SAID PAmEllT WIU SATISfY All' OICln,
JUDGI1EIlT OR AWARD III WHICH THEIlE IS SUCH fllIDl1I8S OF ADJUDICATlOII IIIYOLYI1I6
SAID PA'OR 011 THEil lIENALI' AIID TO THE EIlTEIlT OF THEIR L1AlIILm '011
COIITIIDUTIOII, IF IT IS IlILD THEIE IS AIIT LIABILITY FOR COIITRlllUTIOlL 'URTHEI, I
WILL I"DE""IF'f AND SAy( 'OREYER HARI1LESS SAID PAYOR AIlAIIIST LOSS lilt DA"AIE
lIECAUSE Of All' ANO AU fURTJIDI CLAII1S, DEttAIIDS 01 ACTIOIIS "ADE B' lI11IIl. 011
ACtDUIlT 0' 01 III AllY lWUIO RESULTINI flOtl SAID IlUUllEl, LOSSES AlID
DAttA81S, IIICI.UDI1I8 All'f A. ALL ClAI"S OR L1EIIS ARISIMI lIllT 0' THE PAntDfr IV
AN IIISUIAIICI CAIRIEI Of All'f "EDlCAL UPDl$lS 011 OTlIII LOSS IIlCUIlllED IV I1E
IESULTIIIS 01 TO IESULT fRM Tll€ ACCIDEIIT THAT OCCUIRED 011 OR AlIOUT THE UID
0' "A', 199...
IT IS UIIDERSTOOO AIID AGRnD THAT THIS RELEASE IS IXECUTED AllO DRIVElED III
ACCORDAllCE WITH THE .UIIIFORIt COIfTIIlIUTIDII ~01l6 TORT fEASORS ACT".
'i"" ,
."
"111.1._0.
, .
~ 2 2l!i!/(,
... ..'
\
THII SPECIAL lE". EASE, l:OIlIIITIIII Of TWO PAIII, l:OllTAIIlI THE EllTII. A.IU"EIlT
lIITWlEII TilE PARTIES HEino, AIIO THI nl"1 a, THI. IELEASE AlE COllTIACTUAL
AIID /lOT A "EIE IEClTAL.
THE ACCEPTAIICE a, THIS RELEASE SHALL 1I0T OPERATE AI All AD"18S101I OF L1AlIILlTY
011 TMI PART Of AII'OIlE.
I 'UlTHEI STATE THAT I HAVE CAII'ULU lEAD THE '0.1101111 IELEASE AIID kllOW THE
COllTEIITS THEIEa" AIID I SIIII THE SA"E AS "' 0"'" 'RU ACT.
0', I HAVE HEAEUIITO SET"' HAIID THII ~ DA'
1.>> III WlnESS WH
"AICH, 199
WI
0'
-'-
- .
..,)
2.)
I NAvr HAft AltO
UNDrRSTDOD THIS IrL(ARI
ADDIESS:
rL" I'd '~'" - j .j
....'''''' ...v t
", 1'1"" .
I. '\ I( ~ '':1.4,(' t"
u
, (j,)\. \--l '"
TAnl HEIIITUL"AII
"-'
1":..':":1
WITIIESS:
5.)
u
ADDIESS:
'.
, ,
,
WI:' .., .~ IMI.
. tI.4 _...'
CERTIFICATE OF SERVICE
,
"
I hereby certify that I am this day s(:'/Ing a copy of the foregoing document upon the persons
in the manner Indicated below, which service satisfies the requirements of the Pennsylvania Rules
of Civil Procedure, by deposlling II copy of same in the United States Mall, Harrisburg, Pennsylvania,
with first-class postage, prepaid, as follows:
'I
Darrell C, Dethlefs, Esquire
LAW OFFICES OF DARRELL C, DETHLEFS
Wagner Building, Suite 205
355 North 21st Street
Camp Hill, PA 17011
Matthew R. Gover, Esquire
NEALON & GOVER
301 Market Street, 9th Floor
P,O, Box 865
Harrisburg, PA 17108-0865
CALDWELL & KEARNS
By:
J.1hM/
Timothy I. Mark, re
AUomey I,D, .2 8
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Attomey for Defendant
Dated: ..J':o''' r:,
8032'
" 11996.
s
TAMI HEINTZELMAN,
Plaintiff
v,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVAN,A
CIVIL ACTION - LAW
NO, 96-2863
STEPHEN B, ODIORNE,
Defendant
v,
MARK E HEINTZELMAN,
Additional Defendant
JURY TRIAL DEMANDED
MOTION OF ADDITIONAL DEFENDANT, MARK E. HEINTZELMAN, REQUESTING THAT
THE COURT AMEND ITS ORDER OF COURT OF MARCH 20, 1998 CONCERNING
PLAINTIFF'S MOTIOrifOR A NEW TRIAL
AND NOW comes Additional Defendant, Mark E. Heintzelman, by and through his
allorney, Timothy I, Mark, Esquire, and requests the following:
1. Appended hereto and marked Exhibit "A" is a true and correct copy of Judge
Bayley's Order dated March 20, 1998 which denied the Motion of the Plaintiff for a new trial
against Defendant, Stephen B, Odiorne, but granted the Plaintiffs Motion for a New Trial limited
to damages against Additional Defendant, Mark E, Heintzelman,
2, Appended hereto and marked Exhibit "B" is a true and correct copy of the
Answer with New Maller endorsed with a Notice to Plead of Additional Defendant, Mark E.
Heintzelman, which, inter ill:
a, In paragraph 13 pointed out that the joining Complaint of the Additional
Defendant was not filed until September 26, 1996, more ttlan two years following the accident
and, therefore, any allegation of sole liability of Mark E, Heintzelman to the Plaintiff is prohibited
by the statute of limitations;
b, Appended and marked as Exhibit "A", a Pro-Rata Joint Tortfeasor
Release executed by Taml Heintzelman in favor of Mark E, Heintzelman which was pleaded a$
a defense to the action both as to the claim of Tami Heintzelman as well as the claim of
Stephen Odiorne
c, Averred that pursuant to the Release, Mark E, Heintzelman could have no
further liability to Tami Heintzelman and asserting that the Additional Defendant's liability was
extinguished by the terms of the Release, leaving Stephen Odiorne only liable for his
percentage share of liability to the Plaintiff,
3 The Releue referred to above wu markod as an exhibit and flnlered into the
record of the case but since the transcript of the trial was not requested by the Plaintiff, the
transcript page number cannot be provided,
4. The Order of Judge Bayley of March 20, 1998 should be amended, in light of the
foregoing to provide that:
Q, While the Court would havfl granted a new trial limited to damages
against Additional Defendant, Mark E. Heintzelman, in light of the fact that the Additional
Defendant was Joined after the statute of limitations and cannot be solely liable to the Plaintiff or,
in the further alternallve, In light of the Release executed by Taml Heintzelman In favor of the
Additional Defendant, Mark E, Heintzelman, all claims of the Plaintiff against Mark E.
Heintzelman are marked satisfied and discontinued,
b, In the further alternative, because the Additional Defendant was Joined
after the statute, there can be no sole liability to the Plaintiff, and because the Court has upheld
the finding of no liability in favor of Defendant Odiorne, no claim of contribution exists by
Odiorne by Heintzelman, and as well the Plaintiff previously released all claims against Mark E,
Heintzelman by virtue of the Release entered into the record, all claims of the Plaintiff against
the Additional Defendant Defendant are dismissed,
WHEREFORE, Additional Defendant, Mark E. Heintzelman, requests that the Court
enter an Order modifying its March 20, 1998 Order, clearly indicating that in light of the late
joinder of Mark E, Heintzelman, there can be no sole liability on his behalf in favor of the Plaintiff
and in light of the finding of no liability of Defendant Odiorne, no claim exists by him against
Additional Defendant, Mark E. Heintzelman, and therefore the case against Heintzelman is
dismissed and requests that the Court grant such other relief as may be necessary, just and
appropriate under the circumstances,
Respectfully submitted,
THOMAS,~S
/fIU
H~~~
By:
Dated: March 25, 1998
Timothy I. Mark, Es uir
Attorney ID, No,: 27 8
305 North Front Street
P,O. Box 999
Harrisburg, PA 17108
(717) 23i'-7115
Attorney for Additional Defendant
:141e
2
"
I,
,
d.".
,
, '
,
I
I"~
I
,(
i i
"
"
I 'j
,
"
i
I 'f
~)
1,1
:Ii
:\ i
I
"
.1, ,I
:1 :,',
,t ) rl
~ 'I i
. 'I' !
::'I\'J
::1'''' !
, i I'
" '1'
II" .'
'F+
'1 ':
I .
f. il
, ,
I I
",1 '"
"JI' i
r I'
'1\ ",
'\ I
"
"
"
"
,,'
, "
"
, ,
\
",_L
'1,,-
,',I,
',,,1.;-;'>;"1'.;,,--;,
"'\',- "~ \..."
~t"
I"
,I
\
ExtIIbIt A
;
"'~'_...o.-.."
96-2863 CIVIL TERM
As they approached an entrance to a Pep Boys store to their right before the
intersection of Devonshire Drive, Heintzelman drove Into the right hand lane of travel,
At that point, Odiorne was about one car length ahead of him, Heintzelman started to
pass Odiorne who was on his left side, Odiorne moved Into Heintzelman's lane
approximately six to eight Inches at a point when the front part of Heintzelman's
vehicle was a little passed the back part of Odiorne's vehicle, Heintzelman believed
that both vehicles were going approximately thirty miles per hour at the time,
Heintzelman slammed on his brakes to avoid a collision. The vehicles did not collide,
however, Heintzelman's vehicle slid eighty feet Into a curb at the end of the entrance
to the Pep Boys store, Mark Heintzelman testified that he did not turn his wheels
during the slide because he did not want to swerve Into traffic on his left side, He
testified that he lost control of his car which caused him to hit the curb, He testified
that defendant did not signal when he changed lanes, Tami Heintzelman hit the
windshield when the vehicle came to a halt. Mark Heintzelman got out of the car, and
he talked to defendant. Heintzelman testified that defendant agreed with him that he
did not signal before he moved Into his lane of travel. Heintzelman further testified
that he made a decision to pass vehicles to the right of Odiome's lane of travel
because he felt It was safe to do so, It appeared to him that the roadway contained
three lanes of traffic In the direction he was traveling, There was a solid white line to
the right of the far right lane, There were breaks In the white line at entrances to
businesses such as the entrance to Pep Boys store,
-2-
96-2863 CIVIL TERM
Defendant, Stephen 8, Odiorne, testified that the accident o.::curred
approximately 250 feet from the Intersection of Route 22 with Devonshire Drive. As he
was proceeding east on Route 22 In what he considered the right hand lane of two
lanes of travel, he saw a Pep Boys store on the right where he decided to go to
purchase a battery, Defendant testified that as he began to turn onto what he
considered the right berm to prepare to tum Into the Pep Boys entrance, he looked
over his right shoulder and saw the Heintzelman vehicle approximately two or three
car lengths behind him, At that point defendant believed that he was six or seven
Inches Into the berm, so he stopped turning to the right. Heintzelman than skidded
all the way to the curb at the opposite end of the entrance to the Pep Boys store,
Defendant testified that he believed that he had his turn signal on when he started to
turn onto the berm, but he was not sure, He said that he was going about 15 miles
per hour when he initiated the tum onto the berm, He testified that he knew people
drove on the berm In that area as he had driven In that location many times,
Plaintiff raises two Issues In seeking a new trial. First, she maintains that the
finding of the jury that defendant's negligence was not a substantial factor In bringing
about her harm is against the weight of the evidence, The grant of a new trial based
on the weight of the evidence Is within the sound discretion of the court. Krymalskl
by Krymalskl v. Tarasovlch, 424 Pa, Super, 121 (1993). The evidence supporting
the verdict must be so Inherently Improbable or at variance with admitted or proven
facts or with ordinary experience, as to render the verdict shocking to the court's
.3.
9.6-2863 CIVIL TERM
sense of Justice, Brindley v, Woodland Village Restaurant, Inc., 436 Pa, Super. 365
(1995). The JIJry was entitled to believe all, some, or none of the evidence. Rafter v.
Raymark Industries, Inc., 429 Pa, Super, 360 (1993).
In the case sub judice. there was a dispute as to whether the section of Route
22 on which Mark Heintzelman was driving when the accident occurred was a lane of
travel or a berm, The Jury could have concluded that It was one of three lanes
eastbound, or that It was the right hand berm of a two lane highway on which
Heintzelman was passing Odiorne on the right side. The jury could have concluded
that Odiorne only moved Into either the berm or the right hand lane six to seven
Inches at a point where Heintzelman was two or three cars behind him and that he
then moved back Into his lane, There was no collision, but Heintzelman still lost
control of his vehicle and skidded eighty feet Into a curb, The Jury could have
concluded that Heintzelman was traveling too fast for conditions, that he did not have
his vehicle under control, and that the negligence of Odiorne was not a substantial
factor In causing Heintzelman's collision with the curb, Given the disputed evidence,
we are satisfied that the verdict that Odiorne's negligence In unsafflly moving to the
right was not a substantial factor causing the collision of the Helntzslman vehicle
with the curb at the end of the Pep Boys entrance, was not against the weight of the
evidence, See Roberts v. Dungan, 133 Pa, Commw, 96 (1990), The jury's finding
does not shock our sense of justice, Therefore, we will not grant a new trial as to
liability,
-4-
96-2663 CIVIL TERM
Plaintiff further maintains that the finding by the Jury that she suffered no
compensable Injury In the accident on May 23, 1994, is against the weight of the
evidence and warrants a new trial on the issue of damages, Defendant, Stephen B.
OdIorne testified that when he stopped at the scene of the accident, It was evident
that plaintiff was In great pain from having hit the windshield, Plaintiff was taken by
ambulance to the Polyclinic Hospital where she was evaluated and x-rays were taken,
She saw her family doctor two days after the accident. He prescribed pain
medication and . later therapy for headaches, dizziness, neck and back pain, Starting
In June, 1994, plaintiff undertook physical therapy three times a week for
approximately two months, She received additional therapy In the late summer of
1994. On October 17, 1994, she went to a chiropractor, Dr, Bruce Allen, Dr. Allen
provided approximately 70 treatments the last of which was just prior to trial was on
November 3, 1997. Dr, Allen was of the opinion that the accident on May 23, 1994,
caused a multl.level cervical InJury to plaintiff, Dr, Allen referred plaintiff for evaluation
to Balint Balog, M,O. an orthopedic surgeon, Dr, Balog examined plaintiff In
November, 1994 and August, 1995, He concluded that plaintiff was suffering from a
cervical sprain, On November 10, 1995, on another referral by Dr. Allen, plaintiff was
examined by a neurologist, Charles Yanofsky, M,O, Dr, Yanofsky was of the opinion
that plaintiff suffered from a mioforcullnjury and probable cervical sprain. Dr, Balog
and Dr, Yanofsky were both called to testify by defendant.
In LewIs v. Evans, 690 A2d 291 (Pa, Super, 1997), a jury found the defendant
.5.
...1
96-2863 CIVIL TERM
to be negligent in the operation of her motor vehicle which Involved a collision with a
vehicle operated by the plaintiff and thatlhe defendant's negligence was a substantial
factor In bringing about the plaintiffs harm. The jury found the plaintiff contributory
negligent but found that her negligence was not a substantial factor In bringing about
her harm, The jury also found, however, that plaintiff sustained no damages, The
Superior Court In upholding a grant of a new trial on only the Issue of damages
stated :
Appellant next asks whether the court erred when It reversed the
jury's finding that Appellees had not suffered a compensable Injury,
Appellant notes that the Jury heard conflicting opinions with respect to
Judith Lewis' physical condition after the accident, and that Just because
the Jury found that Appellant wa!> negligent, they could have concluded
that Judith Lewis suffered from only insignificant Injuries which were not
compensable,
In this case, hcwever, both plaintiff and defense experts agreed
as to Injury and causation, While the extent of the Injury was contested,
both experts Indicated that Mrs. Lewis suffered a back strain/sprain, In
reviewing the testimony presented, the trial court concluded that It
demonstrated that Mrs, Lewis suffered some loss for which some
amount of damages should have been awarded,
In reviewing a trial court's grant of a motion for new trial It must
be determined whether the trial court clearly and palpably abused Its
discretion or committed an error of law. Thompson v. City of
Philadelphia, 507 Pa, 592, 493 A,2d 669 (1985). If support for the
decision of the trial court is found In the record, the order must be
affirmed, Stevenson v. General Motors Corp., 513 Pa. 411, 521 A,2d
413 (1987), In this case there Is support for the court's decision found
In the testimony of the experts, There was no Indication that Mrs, Lewis
suffered only an Insignificant injury, Rather both agreed that she
suffered at least some type of back sprain or strain, which common
sense would dictate would be the source of some pain and discomfort,
Accordingly, we find no reason to disturb the court's ruling,
In the case sub ludice, defendant acknowledged that plaintiff was Injured In the
-6.
96-2863 CIVIL TERM
accident on May 23, 1994, The contested Issue was the extent and the severity of
those Injuries and whether some of plaintiff's complaints had causes other than the
accident on May 23, 1994, The only medical evidence presented was that plaintiff
suffered Injuries as a result of the accident. On these facts, we are satisfied that
plaintiff Is entitled to a new trial on the Issue of damages against additional defendant
Mark Heintzelman, The trial may be limited to damages because the Issue of
Heintzelman's liability has been fairly determined and Is not Intertwined with the Issue
of damages, Catalano v. Bujak, 148 Pa, Commw. 269 (1992),
For the foregoing reasons the following order Is entered.
ORDER OF COURT
AND NOW, this '2.0 day of March, 1998, IT IS ORDERED:
(1) The motion of plaintiff, Taml Heintzelman, for a new trial against defendant,
Stephen B, Odlo ne, IS DENIED.
(2) The motion of plaintiff, Tami Heintzelman, for a new trial limited to
damages against additional defendant Mark f., Heintzelman, IS GRANTED,
By the ~o /1
I
,.
(
-7.
96.2863 CIVIL TEAM
Darrell C. Dethleis, Esquire
For Plalnllff
Matthew R. Gover, Esquire
For Defendant
Timothy I. Mark, Esquire
Additional Defendant
:saa
,
,
\'
.,'1
,
,
:'
"
"
,
, ,
, I
-e.
i I,
'j I
. ';
;\",1,'
.'
:j:' I
'r, J:
i I
111",
\, "'II
I,; I.
,',\ t
I
,-f,
I,li
"
,
I,
':,1' .,,1
"'i:\'1
lij
:..1'1"" "
"
i'l'h
, i'l'll
~' I
,: 'II,;
,I",
I"
1,"-:I.!
J
,
"
"
,
,
I'
1
;'",
1
,
I,' I',
, "
1,:.1,' -\.:." .
I ',1 . ", f' - r,<',-i, ,:.-;/ ",t,.
"i~,,,,!~,,," \
tl"d,'~
1/1,'
j';
"
,I"..
"-" "-'-lrlill\~~(,I'~I~'tI1I,'~rtW!~~Ih'Wn.llM,;tII~fl"W~'I"-Ll ~Il' ~_.--r._~
, " , "" it' ~l. ,it,' i "f1"\," F,
" ,. ; ;,:\
'\ \" '.' I
'.. (
i
I
,
,
,
" ,
ExhIbIt B
"
',)
L '
,t,' ,
\ ,:;t,
T AMI HEINTZELMAN
Plaintiff,
v,
STEPHEN 8, ODlORINE
Defendant,
v,
MARK E, HEINTZELMAN
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTy, PENNSYLVANIA
CIVIL ACTION. LAW
No, 96-2863
:JURY TRIAL
DEMANDED
NOTICE TO PLEAD
TO: Tammy Heintzelman
Matthew R. Gover Esquire, Plaintiffs' Attomey
YOU ARE HEREBY NOTIFIEO, that the New Matter set forth herein contains avemnents against
you to which you are required to respond within twenty (20) days after service thereof, Failure by
you to do so may constitute an admission,
CALDWELL & KEARNS
J.1MJv
By:
Timothy I, Ma Esquire
Attomey 1.O,j/ 27758
3631 North Front Street
Harrlsburlj, PA 17110
(717) 232.7661
Allomey for Defendant
Dlted: ..ll....',,,,,6,_ /.:1
80321
, 1996
<i \,() ('~
C l;'\
;>-
~r!: ,"::) :;:1
r:;~ ",
('C') ,"'iJ:I
,;;: - 'iJ
~;. C'\
'~
"",- ~ .;:.'
,-
II!:. ..~ :::>
;t>.--
(~ w d
;: -. ~
::< r
U\
II. Denied pursuant to Rule 1029(e),
12, Denied to pursuant to Rule 1029(e), It Is further denied that there can be any sole
liability as to Statute of Limitations expired before this joinder complaint was filed; alternative,
new mailer hereto is incorporated by reference,
WHEREFORE, Additional Defendant, Mark E, Heilllzelman, denies any liability to the
Plaintiff or liability to or with the Additional Defendant. Any liability on his behalf being hereby
expressly denied,
NEW MATI'ER
13, The incident referred to in the Complaint occurred on or about May 23, 1994, but
the New Maller asserted by the joining Defendant was notliled under on or about September 26,
1996, more than two years following the accident and therefore any allegation of sole liability is
prohibited in part by the Statute of Limitations,
14, Appended hereto, marked Exhibit "A", and incorporated by reference is a true and
correct copy of a Pro Rata Joint Tort feasor Release executed by Tami Heintzelman, in favor of
Mark Heintzelman, which is pleaded as a defense to this action, both as to the claim ofTami
Heintzelman as well as the claim of Stepher. Odiorne,
15, While Exhibit "A" hereto speaks for itself, it is averred that pursuant to the
Release the answering Additional Defendant, Mark Heintzelman, can have no further liability to
2
Tami Heintzelman pursuant thereto, and there exists no claim for contribution and/or indemnity
I'
"
I,
II
/"
II
'I
II
'I
"
'I
I
It
from Steven Odiorne, Stephen Odiome is only liable for hi~ own percentage share of liability to
the Plaintiff. the answering Defendant's liability having been extinguished by the terms and
provisions of the Release,
WHEREFORE, Additional Defendant, Mark E, Heintzelman, denies any liability to the
Plaintiff or liability to or with the Additional Defendant. Any liability on his behalf being hereby
expressly denied, '
Respectfully Submilled,
CALDWELL & KEARNS
By
J.1JtaJv
Timothy I. Ma
AlIomey I,D, ,27158
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Attorney for Defendant
Oalid: ~_: c. ..LA., ,,' , 1996,
10321
. ,
3
.
JDINT TORT ,rASOI! .Ii rAl!Il
kllOW ALL "EN IV THESE P.EBUTS:
THAT 'OR AIID III COIISIDE.ATION 0' THE PA'ltIllT TO "E 0' YHI .~ 0' 16,000.00.
I, .EALIIIIII THAT THE.E IS DOUBT AIID UIICERTAIIITY AS TO THE NATURE "liD EnEin'
0' "' IlUU.IES, LOSSES AIlD DAItAIEI AIlD AI TO THE L1AIILITY Of THI PAYlllt,
HE.EIIIAfTER OISCRIIED, AllO THAT BUCH 'ACTI All ALlO III DISPUTE, I, IEIICI OF
LAW'UL AlE. HAVE .ELEASED A. DISCllAlIU. AIlO lI' THIll PRESlllTl DO FlIIt
"'SEL', "' HEIRS. EIlECUTOIII, "D"IIIISYRATORI, AllD ASSIIIII, .UEAII, ACQUIT
AND 'OREYER OlSCHA.SE ItAIlIC HElllTZILHAIl
AIID E.IEIIISUlAllCE IROUP AIID/O. YHEIR ItASTE., SlRYAIITI, AIIIITI AIID OfflClRI
(All' AIID ALL 0' WHM AIlE HUlIII REUIIU TO AS THE PA'O.), 1W:IR HEIRI.
REP.ESEllTATIVES, SUCCESIORS, AIlD ASSIIIIS '.DIt AllY AIIO AU. ACTtOlll, CAUID
0' ACTlOII. CLAlltS, DEltAllOl, DAltA8EI, COSTI, LOSS OF SI.YICR. IIPEllln,
CO"PEIISATlOII AND ALL COIISlQUEIITIAL D~AIE AIIO ALSO TO THE nn:lR' Of THEIR
L1AlIILlTY 'OR COIITRllIUTIOII TO AIIY'ahlER JOIIIT TOil fEASOR. ARlIillISoiir 0'011 III
All' WA' IROWIIII OUT Of All' AIlD ALL lCIIQWII AIID utUCllOWIl PE.SOIIAL IIL/UIlIEI AIID
DEATH DR PROPERT' DAItA8E REBUl.TIII8 O. TO RESlA.T 'R~ All ACCIOIlR' THAT
OCCUR.ED 011 O. AS OUT THE 2:SU DA' OF ItA" 1""-
I RESERYE THE RIIHT TO ItAkE CUI" AIAIIIST All' AIID EYE.' 0THIlt PI.SOII OR
EIITIYV AIID RESERYE ALSO THE .IIHT TO "AU CLAIIt THAT TllEY, AIID llOT SAID
PAYORS, ARE SOLELY L1AlILE TO HI FOR "' IIIJURIES, LOISlS AllO DA"A8EI.
ADOITIOIIALLY, THIS RELEASE DOES IIOT APPLY TO A CLAIIt '0. fiRST PAIITY _fiTS.
III THE EVEIIT THAT OTHER TORT 'EASORS ARE RESPOIISllILI TO "E '01 DAtlIlIES AS A
RESULT 0' THIS ACCIDEIIT, THE U1CUTlOII Of THIS .ELEASE IHALL OPI.ATI AI "
SATlS'ACTIOII Of "' CLAI" AllAIllST SUCH OTHE. PAIlIES TO 1W: nnJf1' Of THE
RELATIVE PRO .ATA SHARE OF CO.... LlAllILITY Of THE PA'ER llOlI:llI IILIAIO.
"
If IT SHOlA.D APPEA. TO III ADJUDICATO, III All' SUIT, ACT lOll 01 PIlOCRDIIII,
HOWEYER, THAT SAID PA'O. AIlD OTllIRS WERE IUILTY 0' .JOIIIT IIEILl80lC1 WHICH
CAUSO "' IIlJUIIES, LOSSES OR DAltA6lEI, I. OROE. TO SAVE SAID PA,QR HA....E.S,
I, AS fURTHER COIISIDIRATIOll 'D. SAID PAmlllT WILL SATISfY All' DEC.EE,
JUDI"EIIT O. AWA.O III WHICH T1lDlI IS SUCH fllIDl1l6S Of ADJUDlCATIOII IIIYOLYIIII
SAID PA'O. 011 THEI. llEHALf AIID TO THE EnlillT OF THlI. L1AlIIlm FlIIt
COIITRllIUTIOII, " IT IS HELD THE.E IS AllY L1AlIILlTY 'OR COIITRlltUTIOIl. 'UIlHE., I
WILL 11I01:'n1l1F'f AIID SAW 'O.EYE. HA."LESS SAID PA'O. MAIIIST LOSS lilt DA"AIE
BECAUSE 0' All' AIID ALL fUllTltEJt CLAI"S, DEItAIIDS 01 ACT I OilS "ADE lIY OTllI.I OIl
ACCOUllT 0' O. III All, It.~.... IlISULTIIII F1llllt SAID IIlJU.IEI, LOSsn AID
DAItAIES, IIICLUDIIII AllY AIlD ALL CLAlns O. LIDS A.ISlllI OUT OF THE PAmEllT BY
All IIISIlRAIICE CARRIE. OF AllY nOlCAL UPDlSlS 01 OTllII LOS. IllCURltID lI' ttI
RESULTIII& OR TO RESULT ,.on Tit( ACCIDEIIT THAT OCCUR.ED OR OR AIllIU1' 1W: U.D
0' itA', IDD4,
IT IS UNDERSTOOD AIID ~&.EID THAT THII RELEASE IS ElECUTED AIlD DELIVE.ED III
ACCORDAIICE WITH THE 'UllIfO." COIlT.IltUTIOII ~0ll6 TORT fEASO.S Atr.
ii," ,
."
r I.I.,J.,.......
rwt 2 2 ~!tr
. . . ~ I '
\
THII IPICIAL RELEASE, COIIS..TlIII lIf' TWO PAlE I, COIITAIIlI TIlE EIITIIE AIIUnlllT
lIElWEII THE PAITIEI HEinO, AIID THI Tunl 0' THII IELEAII ARE COllTlACTUAL
AIID IIOT II "ERE IECITAL.
THI ACCEPTAIICE 0' THIS IELEASE SHALL 1I0T OPERATE AI All AD""SI01l 0' LlAlIlLlTY
011 THI PAil Of AII'OIlE.
I 'UlTHEI STATE THAT I HAYE CARf.'ULLY READ THE 'OIEIOIIII IELEASE AIID kllOW THI
COIITEllTl THE.EO', AIID I 11111 THI IA"I[ AI"' OWII 'Rn ACT.
U III wrrllESS WH EO', I HAYE HEREUllTO SIT "' HAIID THIS~":' DA'
nARCH, 199 ,
0'
-'-
.. .
4,.
u
I HAvr HAD AID
UNDIRSTDDD THIS RILIABI
"
01,'
ADOIESS:
r(j '. rlhl~:"" ~;
_" - I:. SJ
f\', Il(~': '';UR'j I~,':':I
WITIIESS:
, u.'\\
TA"I HEIIITZEL"AII
"-'
s..
So>>
",
, ~,
ADOIESI:
'.
"
,
,/
" ,
WID "I ':: WI"
~"".I.._~'
VERIFICATION
I, MARK E, HEINTZELMAN" verify that the averments made In the foregoing Answer with
New Matter are true and correct, I understand that false statements herein are made subject to the
penalties of 18 Pa. C,S. 4904, relating to unsworn falsification to authorities,
~a~ H~~el!f:P~
. Dated:
IJ. /3/91,
I
I
, ,
,>
t" ,
",
4
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a CQPy of the foregoing document upon the persons
In the manner Indicated below, which service satisfies the requirements of the Pennsylvania Rules
of Civil Procedure, by depositing a CQPy of same In the United States Mall, Harrisburg, Pennsylvania,
with first-class postage, prepaid, as follows:
Darrell C, Dethlefs, Esquire
LAW OFFICES OF DARRELL C, DETHLEFS
Wagner Building, Suite 205
355 North 21 st Street
Camp HIli, PA 17011
Matthew R. Gover, Esquire
NEALON & GOVER
301 Market Street, 9th Floor
P,O, Box 665
Harrisburg, PA 17108-0865
CALDWELL & KEARNS
By:
J. 1MJt/
Timothy I. Mark, re
Attomey I,D. #2 8
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Attomey for Defendant
Dated: ~""" !:..
8032'
," ,1996,
, "
5
I
\
Ii~
I"
'I'
~ !.
"
~.. 0\ ~,
~.
r~~ ~: ,
"L C
, i~
c ~
I I-r- ,
, ,
, , ' "
,r,
,
u I , Pi I
\1.. ,," ~J.
'l', lor: t)
(~~ ~.
" ,
, ,
"
"
"
, ,