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Home My WebLink About07-0298r k.; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PROGRESSIVE NORTHERN INS. CO. AS SUBROGEE OF JOHN DANEAU Plaintiff, V. STEVEN COX AND LUIS J. KENNEDY TRUCKING CO. Defendants. CASE NO: p7 - a4,4' Cu TYPE OF PLEADING: COMPLAINT IN CIVIL ACTION FILED ON BEHALF OF: Plaintiff COUNSEL OF RECORD OF THIS PARTY: MICHAEL J. DOUGHERTY, ESQUIRE Pa. I.D. #76046 WELTMAN, WEINBERG & REIS CO., L.P.A. 325 Chestnut Street Suite 1120 Philadelphia, PA 19106 (215) 599-1500 WWR #04928092 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PROGRESSIVE NORTHERN INS. CO. AS SUBROGEE OF JOHN DANEAU Plaintiff, CASE NO: V. TYPE OF PLEADING: COMPLAINT IN CIVIL ACTION STEVEN COX AND LUIS J. KENNEDY TRUCKING CO. Defendants. NOTICE TO DEFEND NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 an attorney in filing in writing with the Court your defenses or objections to 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 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: AVISO LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demanddeas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha dela demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demands en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. usted puede perder dinero o sus propiedadas u otros drechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTA. SI NO TIENE ABOGADO O SINO TIENE EL DINERO SUFFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME FOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ADAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PROGRESSIVE NORTHERN INS. CO. AS SUBROGEE OF JOHN DANEAU CASE NO: 0 7 - -2 9 IF Plaintiff, V. TYPE OF PLEADING: COMPLAINT IN CIVIL ACTION STEVEN COX AND LUIS J. KENNEDY TRUCKING CO. Defendants. COMPLAINT IN CIVIL ACTION AND NOW COMES, Plaintiff by and through its counsel, WELTMAN, WEINBERG & REIS, CO., L.P.A., and hereby files this Complaint against Defendants, jointly and severally. In support thereof, Plaintiff avers as follows: 1. Plaintiff, Progressive Northern Insurance Company ("Progressive"), is a corporation with a registered office located at P.O. Box 43258, Richmond Heights, Ohio. 2. Defendant, Steven Cox, is an adult individual with a last known address of 214 Colldin Street, Belpre, Ohio 45714. 3. Defendant, Luis J. Kennedy Trucking Co., is a business organization licensed and authorized to conduct business in the State of New Jersey and having as one of its places of business 342 Schuyler Avenue, Kearny, New Jersey 07032. 4. Progressive issued a policy of insurance where Progressive agreed to insure a 2004 Fleetwood ("Insured Vehicle"), owned by Plaintiff's insured. 5. On or about February 25, 2005 the motor vehicle owned by Defendant, Luis J. Kennedy Trucking Co., and operated by Defendant, Steven Cox, did negligently, carelessly and/or recklessly collide with the Progressive Insured's vehicle at or near Interstate 81 at or near mile marker 21, SOuthampton, Cumberland County, Pennsylvania. 6. At all times material hereto Defendant, Steven Cox, was acting individually and/or as the agent, servant, workman and/or employee of Defendant, Luis J. Kennedy Trucking Co., within the course and scope of his agency and/or with the express and/or implied consent of Defendant, Luis J. Kennedy Trucking Co.. 7. As a direct and proximate result of Defendants' negligence, the Progressive's Insured vehicle sustained property damage in the amount of $39,340.14. 8. Pursuant to the terms and conditions of the insurance policy, Progressive paid the sum of $38,840.14. A true and correct copy of the payment and damage documentation is attached hereto and marked as Exhibit "I". 9. The insured also sustained damages of $500.00 representing his deductible. 10. Pursuant to the insurance policy issued by Progressive and as a result of said aforesaid payment, Progressive became subrogated to the claim of its Insured against Defendants. 11. Pursuant to Progressive's right of subrogation, Progressive is presently due and owed from Defendants the sum of $39,340.14. 12. Repeated demands have been made upon Defendants for payment of the aforesaid sum; however, Defendants have willfully failed and refused to pay the sum due and owing to Progressive. WHEREFORE, Plaintiff demands Judgment against Defendants jointly and severally the amount of $39,340.14 and costs. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED SHALL BE USED FOR THAT PURPOSE. Respectfully WELTMf NJ)WEINBERO & REIS, CO., L.P.A. Michael J. Dou herty, Esquire PA I.D. # 76016 325 Chestnut Street Suite 1120 Philadelphia, PA 19106 (215) 599-1500 WWR#04928092 FLEETWOOD SERVICE Fax:25072459$7 Apr 13 2005 13:40 . Estimate Page: 1 Sullivan RV Service Inc. 2203 Patterson St. Decatur, In. 48733 CLAW Plione:250-7249404 Fax:250-724-2138 PAGE 1 OF 2 Email - rickQ3ulilvanrv.com Shop Labor Rate $85.00 per labor hour (1/2 hr. min.) Date: 0+1.12.2005 Fed 113& 33.19821131 Repeir R & R R & I Description part cost labor cost x FRONT CAP UPPER 1,228.83 $1,440.00 X LOWER FRONT CAP 1,002.34 $1,200.00 X FIREWALL ASM. MFG COMPONET FABER UP 2,451.04 $4,400.00 X ENTRY DOOR / KEYLESS READY 2,602.97 $160:00 X FRONT BRA 497.56 $80.00 X RF FENDER 315.30 $320.00 X RF HEADLAMP ASM 149.39 564.00 X RF MIRROR 612.26 $120.00 X ENTRY DOOR LATCH / TRJ4"RK 109.21 INC X DOUBLE ENTRY STEP 451.40 $160.00 X ENTRY STEP BOX I LINER - CONSTRUCT FROM COMPONETS 299.21 $760.00 X ENTRY STEP TREADS X 2 60.67 INC X FRONT SLIDE EXTRUSION 52.33 $72.00 X RfH LOWER SLIDE EXTRUSION END CAP 4.90 INC X PASS WALL ASM COMPLETE, FLEETWOOD BUILT 13 000.00 $11,600.00 X HOOD 506.16 $160.00 X HOOD HINGE R/H 22.73 INC X RIS FRONT CAP MOLDINGS 52.94 INC X STEP SKIRT PROTECTOR 33.06 $16.00 X CARPET FOR STEP BOX 98.21 INC X STEEL STRAP R/H 12.98 INC X PASS FRONT HEADLAMP REFLECTOR 5.39 INC X PARK TURN LAMP R/H 39.17 INC X. HOOD STABLIM 23.$7 $32.00 X HOOD !CAS STRUT PASS 9.62 INC X HOOD HINGE UN 22.73 INC TOTAL PAGE 1 23,744.30 $20,584.00 subtotal parts state tax 49 6% Labor cost amount PLEASE SIGN: Sublet cost Fmigbt WasWEcological charge TOTAL Name: JOHN DANEAU Addn:ss• PO BOX 322 CItV. St. & zip DERRY, NH 03038 Phone 60344113-6415 Model: DISCOVERY Year & Make 2004 FLEETWOOD V.I.N. Serial: 770J444"396 The above sedmale is based on our initial inspoctim and dos not cover addWonsl parts and labor which bray be required after work is opened. Additional repairs neessaoi v dole to worn or detsriorsted releled parts are j not Covered by this estknate. These repairs WIN be perfon=W vithgoA authorization up bo, but not ww adbrg II 11011 of estinate value. Pad prices are subject to change fawner is resomsibie for Nosnrsru:e during repairs. ' cl? i ?is?1.D9e i 2! aen x ' pug s0E :0 T 5D ST .add FLEE-NOCD SERVICE Fax:2507245987 Apr 13 2005 131:41 P.04 Estimate Page: 1 Sullivan RV Service Inc. 2203 Patterson St. Decatur, In. 48733 CLAIM # Phone:260.724-8404 Fax:2W-724-2138 PAGE 1 OF 2 Email - rickQsuliivanrv.com Shop Labor Rate $85.00 per labor hour (1/2 hr_ min.) Date: 04.122005 Fed 113#36-1902681 Repair R & R R & i Description part cost labor cost PAINT / PRIME A BASE FRONT CAP UPPER & LOWER 4420.00 $960.00 PAINT I PRIME & BASE WALL 710.00 $19760.00 LAYOUT STRIPE DESIGN & BASE PREP & CLEARCOAT WALL A FRONT CAP UPPER & LOWER 157.50 600.00 $360.00 $640.00 BUFF TO MATCH BALANCE OF RV 23.00 INC IT IS UNDERSTOOD UNIT REPAIR ESTIMATE MADE FROM INTERNET PHOTO'S B FINAL ESTIMATE VAUE WILL HAVE TO APPROVED BY SULLIVAN RV AFTER PHYSICAL CONTACT WITH THE DAMAGED VEHICLE. REPAIR TIME 13 A MIN. OF 4 WEEKS BARING PARTS AVAILABiLTY OPEN DAMAGE TO SLIDE WALL 3 / OR ASM OPEN DAMAGE TO RV FLOOR AT STEP OPENING NOT EXSPO SED OPEN DAMAGE TO RV FLOORING OR DASH COSMETICS AND ANY INTERIOR COMPONETB DAMAGED, NOT SEEN OPEN *-*"" DAMAGE TO WIRING AT FIRONALL OR UNDERDASH " FREIGHT COST ESTIMATED FOR WALL SHIPMENT'*"""' PAGE 2 TOTALS 1 978.50 720.00 PAGE 1 TOTALS 23744.30 520,684.00 THIS ESTIMATE WRITTEN AT OUR APPROVED FLEETWOOD RATE subtotal parts 26 719.80 state tax P_ 6% 1,543.19 Labor cost amount 24,304.00 PLEASE SIGN:- Sublet cost Freight 425.00 Waste/Ecological charge 46.00 TOTAL 52,036.99 1 Name: JOHN DANEAU Address: PO 13OX 322 City, 3t & zip NH 03038 Phone 603-483-6415 Model: DISCOVERY Year & Make 2004 FLEETWOOD V.I.N.: Serial : 770.144488396 The above ssNrnabe is based on our initial krspsctlon, and does not cover additional parts and labor which may be required after work is opened. Additional repairs necessary due to worn or deteriorated related parts are not covered by this andnwae. These repairs will be performed without authorization up to, but not axeeeding 10% of estimate value. Part prices are mdgect to change. Owner is resonsibie for insurance during repairs. Date: 6/1412005 11:40 AM Estimate ID: 5050121 Estimate Version: 0 Committed Profile ID: CUSTOMIZED PROPERTY DAMAGE APPRAISER 5 Hampshire street Salem, NH 03079 (603) 8803388 Fax: (603) 890-3399 Damage Assessed By: ALEX FRAZIER Appraised For: Scott Patterson x 7048 **,r,rt,r**t,r,t?*,t*,t,r,t**,r,rtt,tNOTICE,t,rt,t***,r,r****,rt*t*,r*+****?,r+******** THIS IS NOT AN AUTHORIZATION TO REPAIR. ALL COSTS OF REPAIRS ARE THE SOLE RESPONSIBILITY OF THE VEHICLE OWNER, WHO ULTIMATELY MUST AUTHORIZE ALL REPAIRS. NO SUPPLEMENTS WILL BE HONORED WITHOUT THE PRIOR INSPECTION BY PROPERTY DAMAGE APPRAISERS. Condition Code: Good Type of Loss: Collision Contact Date: 5119/2005 Deductible: 0.00 File Number: 5050121 Claim Number: 066473681 insured: John Daneau Address: contact wife Terry 20 Meadow Lane Auburn, NH Telephone: Work Phone: (603) 234-7813 Mitchell Service: 811000 Description: 04 FREIGHTLINER DISCOVERY License: DANEAU VIN: 4UZAAHAK24CM86794 Mileage: 3,000 OEM/ALT: A Search Code: 310AF Color: TANB Line Entry Labor Line Rem Part Type/ Part Number Dollar Amount Labor Units Item Number Type Operation Description New 1,285.85' 8.0* 1 800500 BOY ' REMOVE/REPLACE LOWER CAP 0* 5 2 900500 REF * REFINISH/REPAIR LOWER FRONT CAP Existing 016 29- 2 . 18-0- 3 900500 BDY * REMOVE/REPLACE FRONT UPPER CAP New . , 8 0* 4 900500 REF * REFINISHIREPAIR FRONT UPPER CAP Existing 275 00 * . 0 0* 5 900500 BDY * * REMOVEIINSTALL WINDSHIELD FIT / LT STEEL TUBING FOR FRAMING FRONT SECTION Sublet **Qual Rapt Part . 100.00 * . 1 6 900500 BOY REMOVEIREPLACE Existing 4 0* 7 900500 BDY * * REPAIR FRONT FIRE WALL FRONT WALL SUPPORT TO FIRE WALL Existing 4.0* 8 900600 BOY REPAIR Existing 4.0* 9 900500 REF ' REFINISHIREPAIR INNER STEEL New 628.00 * 16.0" 1o 900500 BOY * REMOVEIREPLACE FRONT STEP ASSY 00 * 86 8 0* 11 900500 BDY * REMOVEIREPLACE FRONT FLOOR COVERING New . 73 * 3 218 . 6 0* 12 900500 BOY * REMOVEIREPLACE ENTRY DOOR ASSY New , . 256 90' . 2 0* 13 900500 BDY * REMOVEIREPLACE HEAD LIGHT ASSY New . . 16 0* 14 900500 BOY * REPAIR SIDE WALL FRONT SECTION Existing . 10 0* 15 900500 REF * REFINISHIREPAIR SIDE WALL Existing New 134.90 * . 4.0* 16 900600 BDY * REMOVEIREPLACE FRONT WALL MOULDING 8 0* 17 900600 BOY * REMOVEIINSTALL SLIDE OUT UNIT Existing . 8 0* 18 900500 BOY * REMOVEIINSTALL DASH BOARD ASSY Existing . ESTIMATE RECALL NUMBER: 6/14/200511:40:26 5060121 UltraMate is a Trademark of Mitchell International Mitchell Data Version: APR_05_A Copyright (C) 1994 - 2003 Mitchell International Page 1 of 3 19 900500 BDY ' REPAIR 20 900600 FRM ' REPAIR 21 AUTO ADD'L COST - Judgement Item DASH BOARD MOUNTINGS PULL BODY AS NEEDED PAINT/MATERIALS Prior Damage NOTE A SECOND LOOK WILL BE NEEDED FOR HIDDEN DAMAGE Add'l Labor Sublet 1. Labor Subtotals Units Rate Amount Amount Body 116.0 98.00 0.00 275.00 Refinish 27.0 99.00 0.00 0.00 Frame 8.0 100.00 0.00 0.00 Non-Taxable Labor Labor Summary 151.0 III. Additional Costs Non-Taxable Costs Total Additional Costs Date: 6114/2005 11:40 AM Estimate ID: 5050121 Estimate Version: 0 Committed Profile ID: CUSTOMIZED Existing 4.0' Existing 8.0' 486.00 ' Totals 11. Part Replacement Summary 11,759.00 Non-Taxable Parts 2,673.00 800.00 Total Replacement Parts Amount 15,232.00 15,232.00 Amount N. Adjustments 486.00 Insurance Deductible 486.00 Customer Responsibility 1. Total Labor: II. Total Replacement Parts: III. Total Additional Costs: Gross Total: IV. Total Adjustments: Net Total: THIS ESTIMATE HAS BEEN PREPARED BASED ON THE USE OF AUTOMOBILE PARTS NOT MADE BY THE ORIGINAL MANUFACTURER. PARTS USED IN THE REPAIR OF YOUR VEHICLE BY OTHER THAN THE ORIGINAL MANUFACTURER ARE REQUIRED TO BE AT LEAST EQUAL IN LIKE KIND AND QUALITY IN TERMS OF FIT, QUALITY AND PERFORMANCE TO THE ORIGINAL MANUFACTURER PARTS THEY ARE REPLACING. Point(s) of Impact 1 Right Front Corner (P) insurance Co: Progressive Insurance Inspection Site: AT SHOP Address: 3 Executive Park Drive Inspection Date: 5/27/2005 Bedford, NH 03110 Work Phone: (603) 222-7000 Fax Phone: (603) 624-4242 Body Shop: CAMPERS INN INC. Address: 35 ROBERT MILLIGAN PARKWAY MERRIMACK, NH 03054 Telephone: (603) 883-1082 ESTIMATE RECALL NUMBER: 6/14/2005 11:40:26 5050121 UltraMate is a Trademark of Mitchell international Mitchell Data Version: APR_05_A Copyright (C) 1994 - 2003 Mitchell International Amount 7,735.77 7,735.77 Amount 0.00 0.00 46,23240-- 7,736.77 486.00 0.00 -234,6&R- 5 66 ??4Jt i Page 2 of 3 Date: 61141200511:40 AM Estimate ID: 5050121 Estimate Version: 0 Committed Profile ID: CUSTOMIZED ****************************AGREED REPAIR COST*********************** IT IS UNDERSTOOD THAT THE ABOVE SHOP, IF ONE IS LISTED, AGREES TO COMPLETE AND GUARANTEE ALL REPAIRS LISTED ABOVE FOR THE AMOUNT LISTED UNLESS A DIFFERENT AMOUNT IS LISTED HERE $ BY: DATE: ********************************************************************** ****************************ADDITIONAL INFORMATION******************* VEHICLE IS : REPAIRABLE ( ) A BORDERLINE TOTAL ( ) A TOTAL LOSS ( ) REPAIRS ON THIS VEHICLE SHOULD TAKE DAYS TO COMPLETE ********************************************************************** DEDUCTIBLES ARE NOT ADDRESSED OR INCLUDED IN THISESTIMATE/APPRAISAL!! THE REPAIR SHOULD CHECK TO SEE IF THE DEDUCTIBLE IS APPLICABLE TO THE LOSS AND, IF SO, COLLECT IT FROM THE VEHICLE OWNER PRIOR TO THE RELEASE OF THE REPAIRED VEHICLE. THIS REPAIR ESTIMATE/APPRAISAL MAY BE PREPARED BASED UPON THE USE OF ONE OR MORE AFTERMARKET CRASH PART /OR OTHER PARTS SUPPLIED BY A SOURCE OUTH THAN THE MANUFACTURE OF YOUR MOTOR VEHICLE. PARTS USED IN THE REPAIR OF YOUR VEHICLE BY OTHER THAN THE ORIGINAL MANUFACTURER ARE REQUIREDTO BE ATLEAST EQUAL IN LIKE KIND AND QUALITY IN TERMS OF FIT, QUALITY, AND PERFORMANCE TO THE REPLACEMENT BY THE PARTS MANUFACTURER OR DISTRIBUTOR RATHER THAN YOUR OWN MOTOR VEHICLE MANUFACTURER. DAYS TO REPAIR ESTIMATE RECALL NUMBER: 611412005 11:40:26 5050121 UltraMate is a Trademark of Mitchell International Mitchell Data Version: APR_05_A Copyright (C) 1994 - 2003 Mitchell International Page 3 of 3 VERIFICATION I, Michael J. Dougherty, Esquire, attorney for the Plaintiff(s) do hereby swear and affirm that the averments in the attached Complaint in Civil Action are true and correct to the best of my knowledge, information and/or belief. These averments are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to usworn falsification to authorities. Date: 1I`;L/" I i? Michael J. ougherty WWR# u w v( VI 0 C' N -j 'T7 LA) O `n Fl l ! T; ?' 1 I OLO WELTMAN, WEINBERG & REIS CO., L.P.A. BY: Michael J. Dougherty, Esquire Attorney for Plaintiff(s) I.D. No. 76046 325 Chestnut Street, Suite 501 Philadelphia, PA 19106 Phone: 215.599.1500 Fax: 215.599.1505 File # 04928092 PROGRESSIVE NORTHERN INSURANCE COMPANY alslo JOHN DANEAU Cumberland County Court of Common Pleas vs. NO. 07-298 CIVIL TERM STEVEN J COX and LUIS J KENNEDY TRUCKING CERTIFICATE OF SERVICE TO THE PROTHONOTARY: On January 25, 2007 Plaintiff mailed its Complaint in Civil Action to Defendant, Steven J. Cox, at 714 Colldin Street, Belpre, OH 45714 by certified mail, return receipt requested and first class, United States mail, postage-prepaid. The certified mail, return receipt requested was returned unclaimed. The first class, United States mail, postage- prepaid was not returned. Attached is United States Postal Service Track & Confirm for certified mail receipt number 7005 3110 0002 0034 9382. WELTMAN, WEINBERG & REIS CO., L.P.A. BY. Michael J. Poughe y, Esquire Attorney for Plainti r --- Insured Mail C.O.D. 4. Restricted Delivery? (Extra Feel ? Yes 2. Article Number 7005 1820-0001 5 015 0478 (Transfer from service W"O A E3 Agent ? Addressee rP? kited Na . Date of Delivery D114delt i very address different fro Item 17 13 Yes 1176, enter delivery ad elow: ? No 3y0" sC, u f 3. Service Type )? ?7C7?? Certified Mail E3 Express Mail K f\ ?? / 13 Registered Vetum Receipt foLlt" ;lmadi•s ¦ Complete items 1, 2, and 3. Also complete Item 4 If Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: ??is ? KenhPr•lY h I due PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 0 Q ?:t is=;; -+-t ? ? -? n?t F? ? _??; ^ ? G? (?J = t i::r _'` °s?t ?-? ?? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Progressive Northern Ins. Co. As subrogee of John Daneau Plaintiff V. Steven Cox and Luis J. Kennedy Trucking Co. Defendants. Case No.: 07-298 ANSWER WITH NEW MATTER AND NEW MATTER CROSS CLAIM : TO PLAINTIFF'S COMPLAINT DEFENDANT, LOUIS J KENNEDY TRUCKING CO., IMPROPERLY NAMED LUIS J. KENNEDY TRUCKING CO.'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., by its attorneys Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C. hereby respond to Plaintiff's Complaint as follows: 1. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 2. Denied. The allegations set forth in this paragraph do not pertain to the Answering Defendant and, accordingly, no answer is required. To the extent, however, that an answer may be required, the said allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth in this paragraph and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 3. Admitted. 4. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 5. Denied. Answering defendant specifically denies that it was negligent, careless and /or reckless at any time material or relevant to plaintiffs cause of action and that said defendants' alleged negligence, carelessness and/or recklessness in any way caused or contributed to the alleged accident and/or plaintiffs alleged resulting injuries. For further answer, answering defendant is advised by counsel and therefore avers that the allegations contained in the corresponding paragraph of plaintiff s Complaint are conclusions of law which are automatically deemed denied and are at issue under the Pennsylvania Rules of Civil Procedure without specific denial. Strict proof thereof is demanded at trial, if material. 6. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments 2 set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 7. Denied. Answering defendant specifically denies that it was negligent at any time material or relevant to plaintiffs cause of action and that said defendant's alleged negligence in any way caused or contributed to the alleged accident and/or plaintiffs alleged resulting injuries. For further answer, answering defendant is advised by counsel and therefore avers that the allegations contained in the corresponding paragraph of plaintiffs Complaint are conclusions of law which are automatically deemed denied and are at issue under the Pennsylvania Rules of Civil Procedure without specific denial. Strict proof thereof is demanded at trial, if material. 8. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. By way of further answer, the documents attached as Exhibit 1 to the Complaint are in writing and speak for themselves. 9. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 3 10. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. By way of further answer the insurance policy is in writing and speaks for itself. 11. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 12. Denied. The averments in this paragraph set forth conclusions of law which require no answer but which are nevertheless denied. WHEREFORE, Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. prays this Honorable Court enter judgment in answering defendant's favor and against all persons or parties with costs. NEW MATTER 13. Plaintiff's alleged causes of action are barred by the applicable Statute of Limitations for any acts or omissions occurring more than two (2) years prior to the filing of the Complaint. 4 14. Nothing done or omitted to be done by answering defendants was the proximate cause of any injuries to plaintiff. 15. The alleged injuries to plaintiff were caused or contributed to in whole or in part, by the negligence or want of due care of persons, parties and/or organizations other than answering defendant and over whom said answering defendant had no control or right of control or responsibility. 16. If the defendant was negligent in any respect as alleged in the Complaint, all such allegations being specifically denied, said defendant's negligence was passive and the injuries sustained by plaintiff were the result of an intervening negligent act of a third person or persons which was a superseding cause of plaintiff's injuries and, therefore, the defendant is not liable. 17. The alleged injuries of the plaintiff were the result of plaintiff's own negligence which exceeded any negligence of defendant, all negligence of the defendant being expressly denied, and, therefore, pursuant to the Pennsylvania Comparative Negligence Act (42 Pa. C.S.A. §7102), plaintiff's claim is barred. 18. Because the plaintiff had knowledge of, understood and appreciated the consequences of plaintiff's actions, plaintiff voluntarily assumed the risk and, therefore, the defendant is not liable. 19. The Complaint, in whole or in part, fails to state a cause of action upon which relief can be granted. 20. If there is a judicial determination that Pa. R.C.P. 238 is constitutional, said constitutionality being expressly challenged as in violation of the Due Process of Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; 5 42 U.S.C. §1983; Article I, Section 1, 6, 11, 26; and Article V., Section 10(c) of the Pennsylvania Constitution, then liability for any interest imposed by the Rule should be suspended during the period of time that plaintiff: (a) fails to convey to the defendant a settlement demand figure; (b) delays in responding to Interrogatories; (c) delays in responding the Request to Produce; (d) delays in producing the plaintiff for a physical examination; and (f) delays in any other discovery request made by the defendant and, as a result of any delay, the plaintiff should be estopped from obtaining interest because of any violation of the discovery rules. 21. At all times material hereto, the answering defendants maintained proper and adequate control of their vehicle, maintained a proper lookout, used due care for the right, safety and position of others and obeyed the ordinances and statutes of the Commonwealth of Pennsylvania and its local municipalities governing the safe operation of motor vehicles on streets and highways. 22. Defendant asserts all of the defenses available under the Motor Vehicle Financial Responsibility Law, 75 Pa. C.S., § 1701,et seq., and aver that the plaintiff s remedies are limited exclusively thereto, and therefore, the present action is barred or limited. 23. Claims of the plaintiff for products, services and accommodations for: (a) professional medical treatment; (b) emergency health services; (c) medical and vocational rehabilitation services; (d) work income losses, past, present, or future; and 6 (e) Any and all other economic losses are not recoverable from defendant under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 24. At all material times, defendants were faced with a sudden emergency. 25. Plaintiff's claims, if any, are barred, in whole or in part due to its failure to mitigate damages. 26. Plaintiff's alleged damages consist of economic losses not recoverable in tort. 27. Plaintiff's claims for damages are barred by operation of 75 Pa. C.S.A. § 1705. WHEREFORE, answering defendant prays this Honorable Court enter judgment in answering defendant's favor and against all other persons or parties with costs. NEW MATTER CROSSCLAIM PURSUANT TO Pa. R.C.P. 2252(d) AGAINST, PLAINTIFF/DEFENDANT, JOHN DANEAU 28. Answering defendant specifically denies liability for any and all allegations set forth in plaintiff s Complaint and incorporates by reference herein the allegations and averments contained in its answer, together with the new matter set forth herein. 29. If the plaintiffs suffered injuries or damages as alleged in their Complaint, said injuries or damages were caused solely by the negligence and carelessness of plaintiff/defendant, John Daneau, as is more particularly set forth in plaintiffs Complaint. 30. Plaintiff/Defendant, John Daneau, is primarily liable for any injuries or damages, which may have been suffered by plaintiff. 7 31. As a result of the matters alleged in the Complaint, answers thereto, or any of them, defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., may be held liable to plaintiff for all or part of such injuries or damages as they may have sustained, in which event, plaintiff/defendant, John Daneau, as the party primarily liable for such injuries or damages, is liable to defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., by way of contribution and/or indemnification for all such injuries or damages as they may suffer and said defendant asserts in this action their right to such indemnity and/or contribution. WHEREFORE, defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., demands; (a) judgment dismissing the Complaint against it and judgment in its favor together with costs and disbursements; (b) Judgment that, if there is any liability to plaintiff/defendant, John Daneau is solely liable to plaintiffs; and (c) If a verdict is recovered by plaintiffs against defendant, then plaintiff/defendant, John Daneau will be held primarily liable, and that defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., will have judgment over and against the aforementioned defendant by way of contribution and/or indemnification for the amount recovered by plaintiffs against it with costs and disbursements. ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER & TODDY, P.C. )1?4 A By: 4 V( ton arzano, Esquire Attorney for Defendant, Louis J. Kennedy Trucking Co., Improperly named Luis J. Kennedy Dated: 311(,1o2 Trucking Co. 8 VERIFICATION I, Scott W. Schumacher, hereby state that I am a representative of the Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. in this action and verify that the statements made in the foregoing Answer to Plaintiff's Complaint With New Matter and New Matter Cross Claim Pursuant to Pa. R.C.P. 2252(d) are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsi& Dated: J X0 L-60 Progressive 9 CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: Michael J. Dougherty, Esquire Weltman, Weinberg & Reis Co., L.P.A. 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Anton'G. Marzano, Esquire Dated: 3 t (,/,Q 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Progressive Northern Ins. Co. As subrogee of John Daneau Plaintiff V. Steven Cox and Luis J. Kennedy Trucking Co. Defendants. Case No.: 07-298 MOTION TO COMPEL DISCOERY ANSWERS MOTION TO COMPEL DISCOVERY Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., by and through their counsel Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., hereby moves this Honorable Court for an Order compelling the Plaintiff to submit full and complete responses to Defendant's Interrogatories and Request for Production of Documents within ten (10) days from the date of the attached Order. 1. Pursuant to Rule 208.3(a)(2) there has been no other rulings in this matter on any issue to date. 2. Plaintiff is represented by Michael J. Dougherty, Esquire of Weltman, Weinberg & Reis Co., LPA, 325 Chestnut Street, Suite 1120, Philadelphia, PA 19106 3. Defense counsel attempted to contacted plaintiff s counsel regarding counsel's position concerning defendant's Motion to Compel Plaintiff s Answers to Discovery by telephone and letter. Plaintiffs counsel has not responded to defense counsel's requests to contact him. See a true and correct copy of the June 7, 2007 letter to plaintiffs counsel attached hereto as Exhibit "A". 4. On or about March 20, 2007, Defendant's counsel forwarded to the offices of opposing counsel, Defendant's Interrogatories and Request for Production of Documents to Plaintiffs herein. A true and correct copy of the March 20, 2007 letter is attached hereto as Exhibit "B". 5. By letter dated April 26, 2007 defense counsel inquired of plaintiffs' counsel when plaintiffs' Answers to the outstanding discovery requested would be produced. See a true and correct copy of the April 26, 2007 letter attached hereto as Exhibit "C". 6. On May 14, 2007 defense counsel inquired of plaintiff's counsel when plaintiff's answers to discovery maybe expected. Plaintiffs counsel inquired of defense counsel whether a copy of his client's Investigative File would be acceptable in lieu of formal responses to the discovery requests. 7. Defense counsel advised that the Investigative File would be acceptable in lieu of formal responses, but if any discovery responses were not answered by the Investigative File answers would be requested. Defense counsel by letter dated June 7, 2007 again inquired when he may expect to receive plaintiff's Claims File in response to the discovery request. Defense counsel further advised that if he did not receive the answers to discovery within five days of the date of the letter he will have no choice but to file the appropriate motion with the Court. See a true and correct copy of the June 7, 2007 letter to plaintiff's counsel attached hereto as Exhibit "D". 9. As of this date, no response or objections have been received from Plaintiffs for any of the above discovery requests. 2 10. Pursuant to Pa. R.C.P. 4006 a party served with Interrogatories must file Answers and/or objections to the Interrogatories within thirty (30) days after service. 11. Pursuant to Pa. R.C.P. 4009(b)(2), a party upon whom a Request for Production of Documents is served, shall serve a written response and/or objection thereto within thirty (30) days after service. 12. As of this date, no response or objections have been received from plaintiffs counsel for any of the above discovery requests. 13. Rule 4019 of the Pennsylvania Rules of Civil Procedure provides that a Court may on motion make an appropriate Order, if a party fails to serve sufficient answers or objections to written Interrogatories under Rule 4005, or if a party fails to respond to a Request for Production of Documents made under Rule 4009. 14. Defendants are being severely prejudiced and hampered in their ability to properly pursue and litigate this claim. WHEREFORE, Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., respectfully requests that the Court enter the attached Order directing Plaintiffs to fully and completely answer Defendants' Interrogatories and Request for Production of Documents within twenty (20) days. ZARWIN, BAUM, DeVITO, KAPLAN, S AER & TOD Y P.C. By: ton G. Marzano, Esquir Attorney for Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. Date: 71(c/O 7 3 VERIFICATION I, Anton G. Marzano, Esquire, on behalf of the Defendants state that I am the attorney in the within matter and I am authorized to state that the facts set forth in the foregoing Motion to Compel Discovery Answers are true and correct to the best of my knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. Dated: :7 C& to-) Progressive/Daneau -k ZARWI N + BAUM • I- `VITO KAPLAN + SCHAER • TODDY + P.C. ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@zarwin.com June 7, 2007 Michael J. Dougherty, Esquire Weltman, Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Re: Progressive Northern Insurance Co. as Subrogee of John Daneu vs. Steven Cox and Luis J. Kennedy Trucking Co. CCP, Cumberland County, No.: 07-298 File No.: 21641 Dear Mr. Dougherty: This is to inquire when we may receive your Claims File in connection with the above-captioned matter. We directed Interrogatories and Request for Production of Documents to your client by letter dated March 20, 2007. By letter dated April 26, 2007 we inquired when we may receive your client's Answers to the discovery requests, and if we do not receive them the appropriate Motion would be filed. On May 14, 2007 we spoke by telephone with you regarding the discovery issue. At that time, you inquired whether production of your Investigation File would be acceptable in lieu of formal answers. We advised that we will accept the Investigation File and if any Interrogatories or Request for Production of Documents are not covered by the documents produced we will advise you and request that you answer the discovery requests. To date we have not received your Investigation File and any answers to discovery. Accordingly, if we do not receive your answers within five (5) days of the date of this letter we will have no choice but to file the appropriate Motion with the Court. V ry truly yours, nton G. Marzano AGM:sa 1515 MARKET STREET * 12TH FLOOR ? PHILADELPHIA, PA 19102-1981 ` (215) 569-2800 ? FAx (215) 569-1606 * WWW.ZARWIN.COM PENNSYLVANIA OFFICES: ALLENTOWN ? CONSHOHOCKEN i NEW JERSEY OFFICES: JERSEY CITY + LINWOOD f' MARLTON s ZARWI N + BAUM + r' `'VITO KAPLAN + SCHAER e TODDY* P.C. ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@zarwin.com March 20, 2007 Michael J. Dougherty, Esquire Weltman, Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Re: Progressive Northern Insurance Co. as Subrogee of John Daneu vs. Steven Cox and Luis J. Kennedy Trucking Co. CCP, Cumberland County, No.: 07-298 File No.: 21641 Dear Mr. Dougherty: Enclosed please find an original and two (2) copies of Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co.'s interrogatories and Request for Production of Documents Addressed to Plaintiff regarding the above-captioned matter. Kindly respond in accordance with the Pennsylvania Rules of Civil Procedure or on or before Friday, April 20, 2007. Yr, truly yours, VOY ?nton G. Marzano AGM:sa Enclosure cc: Mr. Bernie Talty Lewis J. Kennedy Trucking Company 1515 MARKET STREET '9? 12TH FLOOR 8 PHILADELPHIA, PA 19102-1981 4 (215) 569-2800 ° FAx (215) 569-1606 WWW.ZARWIN.COM PENNSYLVANIA OFFICES: ALLENTOWN 4' CONSHOHOCKEN 4 NEW JERSEY OFFICES: JERSEY CITY a LINWOOD f' MARLTON C ZARWI N e BAUM + .D EVITO KAPLAN • SCHAER TODDY* P.C. ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@zarwin.com April 26, 2007 Michael J. Dougherty, Esquire - Weltman, Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Re: Progressive Northern Insurance Co. as Subrogee of John Daneau vs. Steven Cox and Luis J. Kennedy Trucking Co. CCP, Cumberland County, No.: 07-298 File No.: 21641 Dear Mr. Dougherty: On March 20, 2007, I forwarded to your attention Defendants' Interrogatories and Request for Production of Documents directed to Plaintiff, Progressive Northern Insurance Co. as Subrogee of John Daneau. To date I have not received your answers to the Defendant's discovery. Kindly supply me with answers to the requested discovery within ten (10) days so we may avoid the filing of a Motion to Compel. V r truly yoOo nton G. MarAGM: sa Enclosure cc: Mr. Bernie Talty Lewis J. Kennedy Trucking Company 1515 MARKET STREET ® 12TH FLOOR o PHILADELPHIA, PA 19102-1981 & (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM PENNSYLVANIA OFFICES: ALLENTOWN ® CONSHOHOCKEN ® NEW JERSEY OFFICES: JERSEY CITY * LINWOOD b MARLTON D i ZARWIN • BAUM • F `VITO KAPLAN • SCHAER • TODDY + P.C. • ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@carwin.com June 7, 2007 Michael J. Dougherty, Esquire: . Weltman , Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Re: Progressive Northern Insurance Co. as Subrogee of John Daneu vs. Steven Cox and Luis J. Kennedy Trucking Co. CCP, Cumberland County, No.: 07-298 File No.: 21641 Dear Mr. Dougherty: This is to inquire when we may receive your Claims File in connection with the above-captioned matter. We directed Interrogatories and Request for Production of Documents to your client by letter dated March 20, 2007. By letter dated April 26, 2007 we inquired when we may receive your client's Answers to the discovery requests, and if we do not receive them the appropriate Motion would be filed. On May 14, 2007 we spoke by telephone with you regarding the discovery issue. At that time, you inquired whether production of your Investigation File would be acceptable in lieu of formal answers. We advised that we will accept the Investigation File and if any Interrogatories or Request for Production of Documents are not covered by the documents produced we will advise you and request that you answer the discovery requests. To date we have not received your Investigation File and any answers to discovery. Accordingly, if we do not receive your answers within five (5) days of the date of this letter we will have no choice but to file the appropriate Motion with the Court. V ry truly yours, 40- nG. Marzano AGM:sa 1515 MARKET STREET * 12TH FLOOR • PHILADELPHIA, PA 19102-1981 + (215) 569-2800 + FAX (215) 569-1606 + WWW.ZARWIN.COM PENNSYLVANIA OFFICES: ALLENTOWN • CONSHOHOCKEN • NEW JERSEY OFFICES: JERSEY CITY + UNWOOD + MARLTON CERTIFICATE OF SERVICE I do hereby certify that service of a true and correct copy of the within Motion to Compel Discovery was made on the 6th day of July, 2007 to counsel below named by United States Mail, Postage pre-paid: Michael J. Dougherty, Esquire Weltman, Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 By: on G. Mariano, Esquire Attorney for Defendant, Louis J. Kennedy Trucking Co., Improperly named Luis J. Kennedy Trucking Co. '° ? ? ? ? S ---"? -? C.... - ?- ?.. ?_.. ....-FS ? :. 1 • ~ yw ? ` •? r . --r. ?.?.. PROGRESSIVE NORTHERN IN THE COURT OF COMMON PLEAS OF INSURANCE COMPANY, as CUMBERLAND COUNTY, PENNSYLVANIA subrogee of John Daneau, Plaintiff vs. STEVEN COX and LUIS J. KENNEDY TRUCKING CO., Defendants CIVIL ACTION - LAW 07-298 CIVIL IN RE: DEFENDANT'S MOTION TO COMPEL ORDER AND NOW, this day of July, 2007, a rule is issued on the plaintiff to show cause why the relief requested in the within Motion to Compel ought not to be granted. This rule returnable twenty (20) days after service. Michael J. Dougherty, Esquire For the Plaintiff Anton G. Marzano, Esquire A.%" ~LL" 1 For the Defendant Kennedy Trucking : rlm 7- 17- 0 7 1?:;:- BY THE COURT, -4 WELTMAN, WEINBERG & REIS CO., L.P.A. BY: Michael J. Dougherty, Esquire Attorney for Plaintiff(s) I. D. No. 76046 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Phone: 215.599.1500 Fax: 215.599.1505 File # 4928092 PROGRESSIVE NORTHERN INS. CO. vs. STEVEN COX, et al Cumberland County Court of Common Pleas No. 07-298 PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 13 - 31. Denied. Defendant's averment is a conclusion of law to which no responsive pleading is required. As way of further response, after reasonable investigation Plaintiff is without sufficient information to form a belief as to the truth or falsity of Defendant's averments. Strict proof of same is therefore required at time of trial. WHEREFORE, Plaintiff demands that judgment be entered in its favor and against Defendant. WELTMAN, WEINBERG & REIS CO., L.P.A. By Mic ael J. ougherty, Esquire Attorney f r Plaintiff IV VERIFICATION I, Michael J. Dougherty, Esquire, attorney for the Plaintiff(s) do hereby swear and affirm that the averments in the attached Reply to New Matter are true and correct to the best of my knowledge, information and/or belief. These averments are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. 41 Michael J. QfAgherty Date l? C'7 C- eWa -Y7 I I Y l ..! am :JJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Progressive Northern Ins. Co. Case No.: 07-298 As subrogee of John Daneau Plaintiff V. Steven Cox and MOTION FOR SANCTIONS Luis J. Kennedy Trucking Co. Defendants. Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., by and through his undersigned attorneys, hereby requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 4019 imposing sanctions upon Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, for their failure to obey a Court Order to answer Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co.'s, Interrogatories and Request for Production of Documents and in support thereof avers the following: 1. Pursuant to Rule 208.3(a)(2) the Honorable Kevin A. Hess ordered on July 16, 2007 that plaintiff show cause why the relief requested in Defendants' Motion to Compel should not be granted. See a true and correct copy of the July 16, 2007 Order attached hereto as Exhibit "A". 2. Plaintiff is represented by Michael J. Dougherty, Esquire and August J. Ober, Esquire of Weltman, Weinberg & Reis Co., LPA, 325 Chestnut Street, Suite 1120, Philadelphia, Pennsylvania 19106. 3. Plaintiff failed to comply with the July 16, 2007 Order. 4. Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., served Interrogatories and Request for Production of Documents on Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, on March 20, 2007. 5. Plaintiff failed to respond or make objection to these requests within thirty (30) days after service, as required by Rule 4009 of the Pennsylvania Rules of Civil Procedure. 6. Defendant's Counsel served a copy of the July 16, 2007 Order upon Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, on August 16, 2007. (See letter to Plaintiff s Counsel dated August 16, 2007 attached as Exhibit `B".) 7. Plaintiff s counsel failed to file an answer to the Motion or response to the Order of the Court. 8. Pa. R.C.P. 4019(a)(1)(viii) provides, respectively, that the Court may make an appropriate Order if a party or person otherwise fails to make discovery or to obey an Order of the Court respecting discovery. 9. Pa. R.C.P. 4019(c)(3) provides that the Court may enter a Judgment of Non Pros against the Plaintiff as an appropriate sanction against the disobedient party for failure to comply with discovery rules and Court Order. 10. Pa. R.C.P. 4019(g)(1) provides that the Court may require party to pay reasonable expenses, including attorney's fees, incurred by the moving party requiring an Order of Compliance and subsequent Order for Sanctions. Defendant has incurred attorney's fees and costs of $500.00 in connection with this matter. 2 11. By letter dated September 13, 2007 defense counsel advised plaintiff's counsel that the appropriate Motion will be filed with the Court if plaintiff s Answers to the discovery requests were not received by September 21, 2007. See a true and correct copy of the September 13, 2007 letter attached hereto as Exhibit "C". 12. Since Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, has failed to comply with the July 16, 2007 Order, the Court should enter a Judgment of Non Pros against the Defendant, and require Plaintiff to pay the reasonable expenses, attorney's fees, incurred by Defendant in obtaining the Order of Compliance and this Order for Sanctions. WHEREFORE, Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., respectfully request that this Honorable Court grant its Motion and order plaintiff to pay counsel fees for the preparation of the Motion and shall submit full and complete Answers and Responses to Defendant's Interrogatories and Request for Production of Documents within five (5) days of the date of the Order or risk further sanctions. BAUM, DeVITO, KAPLAN, & TODDY, P.C. By: Ahton G. Marzano, Esquire Attorney for Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. Date: o 3 VERIFICATION I, Anton G. Marzano, Esquire, on behalf of the Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. state that I am the attorney in the within matter and I am authorized to state that the facts set forth in the foregoing Motion for Sanctions are true and correct to the best of my knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. Itey Anton G. M zan o CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: August J. Ober, Esquire Weltman, Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Anton . Mariano, Esquire Dated: /I t l le? C n " k1 .. rr .mow 7 a 10 PROGRESSIVE NORTHERN INSURANCE COMPANY, as subrogee of John Daneau, Plaintiff VS. STEVEN COX and LUIS J. KENNEDY TRUCKING CO., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 07-298 CIVIL IN RE: DEFENDANT'S MOTION FOR SANCTIONS ORDER AND NOW, this y" day of December, 2007, the motion of Louis J. Kennedy Trucking Co. for sanctions shall be deemed to be a motion to make rule absolute. The plaintiff having failed to respond to our order of July 16, 2007, the motion of the defendant, Louis J. Kennedy Trucking Co. to compel discovery is GRANTED and the plaintiff is directed to respond to outstanding discovery within thirty (30) days of service hereof. BY THE COURT, Michael J. Dougherty, Esquire August J. Ober, Esquire For the Plaintiff Anton G. Marzano, Esquire For the Defendant Kennedy Trucking C.oPI es .ng t l? /2/ Clo 7 :rim ?P r S 3 :g W S- 3-30 LODZ . -.{J2RJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Progressive Northern Ins. Co. Case No.: 07-298 As subrogee of John Daneau Plaintiff V. Steven Cox and MOTION FOR SANCTIONS Luis J. Kennedy Trucking Co. Defendants. Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., by and through his undersigned attorneys, hereby requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 4019 imposing sanctions upon Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, for their failure to obey a Court Order to answer Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co.'s, Interrogatories and Request for Production of Documents and in support thereof avers the following: 1. Pursuant to Rule 208.3(a)(2) the Honorable Kevin A. Hess ordered on July 16, 2007 that plaintiff show cause why the relief requested in Defendants' Motion to Compel should not be granted. See a true and correct copy of the July 16, 2007 Order attached hereto as Exhibit "A". 2. The Honorable Kevin A. Hess ordered on December 4, 2007 that plaintiff is directed to respond to the outstanding discovery within thirty (30) days of service of the Order. See a true and correct copy of the December 4, 2007 Order attached hereto as Exhibit "B". 3. Defendant's Counsel served a copy of the December 4, 2007 Order upon Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, on December 10, 2007. (See letter to Plaintiff's Counsel dated December 10, 2007 attached as Exhibit «C„•) 4. Plaintiffs counsel failed to file an answer to the Motion or response to the Order of the Court. 5. Plaintiff is represented by Michael J. Dougherty, Esquire and August J. Ober, Esquire of Weltman, Weinberg & Reis Co., LPA, 325 Chestnut Street, Suite 1120, Philadelphia, Pennsylvania 19106. 6. Plaintiff failed to comply with the December 4, 2007 Order. 7. Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., served Interrogatories and Request for Production of Documents on Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, on March 20, 2007. 8. Plaintiff failed to respond or make objection to these requests within thirty (30) days after service, as required by Rule 4009 of the Pennsylvania Rules of Civil Procedure. It is now over nine (9) months since the discovery was directed to plaintiff and plaintiff has not provided answers or objections to the requests. 9. Pa. R.C.P. 4019(a)(1)(viii) provides, respectively, that the Court may make an appropriate Order if a party or person otherwise fails to make discovery or to obey an Order of the Court respecting discovery. 2 10. Pa. R.C.P. 4019(c)(3) provides that the Court may enter a Judgment of Non Pros against the Plaintiff as an appropriate sanction against the disobedient party for failure to comply with discovery rules and Court Order. 11. Pa. R.C.P. 4019(g)(1) provides that the Court may require party to pay reasonable expenses, including attorney's fees, incurred by the moving party requiring an Order of Compliance and subsequent Order for Sanctions. Defendant has incurred attorney's fees and costs of $500.00 in connection with this matter. 12. By letter dated December 10, 2007 defense counsel advised plaintiff's counsel that the appropriate Motion will be filed with the Court if plaintiff's Answers to the discovery requests were not received within the time frame set by the December 4, 2007 Order. See a true and correct copy of the December 10, 2007 letter attached hereto as Exhibit "C". 13. Since Plaintiff, Progressive Northern Ins. Co. as Subrogee of John Daneau, has failed to comply with the December 4, 2007 Order, the Court should enter a Judgment of Non Pros against the Defendant, and require Plaintiff to pay the reasonable expenses, attorney's fees, incurred by Defendant in obtaining the Order of Compliance and this Order for Sanctions. WHEREFORE, Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co., respectfully request that this Honorable Court grant its Motion and order plaintiff to pay counsel fees for the preparation of the Motion and enter a Judgment of Non Pros. In the alternative the Court is requested to order plaintiff to submit full and complete Answers and Responses to Defendant's Interrogatories and 3 Request for Production of Documents within five (5) days of the date of the Order or risk further sanctions. ZARWIN, BAUM, DeVITO, KAPLAN, S R & TOD Y, P.C. By: t n G. Marzano, Esquire Attorney for Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. Date: a '?- v U 4 VERIFICATION I, Anton G. Marzano, Esquire, on behalf of the Defendant, Louis J. Kennedy Trucking Co., improperly named Luis J. Kennedy Trucking Co. state that I am the attorney in the within matter and I am authorized to state that the facts set forth in the foregoing Motion for Sanctions are true and correct to the best of my knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: August J. Ober, Esquire Weltman, Weinberg & Reis Co., LPA 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Anton . Marzano, Esquire Dated: ;- I a,6 16 0 EXHIBIT "A" PROGRESSIVE NORTHERN INSURANCE COMPANY, as subrogee of John Daneau, Plaintiff vs. STEVEN COX and LUIS J. KENNEDY TRUCKING CO., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 07-298 CIVIL IN RE: DEFENDANT'S MOTION TO COMPEL ORDER AND NOW, this day of July, 2007, a rule is issued on the plaintiff to show cause why the relief requested in the within Motion to Compel ought not to be granted. This rule returnable twenty (20) days after service. Michael J. Dougherty, Esquire For the Plaintiff Anton G. Marzano, Esquire For the Defendant Kennedy Trucking :rim TRUE GO-PY i--ROM R fi Tea mony whereof, i here tuft Sd my ham A the seal of said COO 81 Colo. Pa. BY THE COURT, EXHIBIT "B" PROGRESSIVE NCRTFIERN INSURANCE COMPANY, as subro-ee of John Daneau, Plaintiff vs. STEVEN COX and LUIS J. KENNEDY TRUCKING CO., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 07-298 CIVIL IN RE: DEFENDANT'S MOTION FOR SANCTIONS ORDER AND NOW, this y" day of December, 2007, the motion of Louis .l. Kennedy Trucking Co. for sanctions shall be deemed to be a motion to make rule absolute. The plaintiff having failed to respond to our order of July 16, 2007, the motion of the defendant, Louis J. Kennedy Trucking Co. to compel discovery is GRANTED and the plaintiff is directed to respond to outstanding discovery within thirty (30) days of service hereof. BY THE COURT, Michael J. Dougherty, Esquire August J. Ober, Esquire For the Plaintiff Anton G. Marzano, Esquire For the Defendant Kennedy Trucking rlm yyii ? w 1 . 4t ?_ 4 , yam{ y 7 f? t t* ?a EXHIBIT "C" ZARWIN • BAUM • EVITO KAPLAN • SCHAER • TODDY • P.C. ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@zarwin.com December 10., 2007 August J. Ober, Esquire Weltman, Weinberg & Reis Co.. LPA 325 Chestnut Street, Suite 1 120 Philadelphia, PA 19106 Re: Progressive Northern Ins. Co. As Subrogee of John Daneall v. Steven Cox and Luis J. Kennedy Trucking Co. CCP. Cumberland County, No. 07-298 File No.: 21641 Dear Mr. Ober: This kill serve to forward to > ou a copy of the December 4, 2007 Order of the Court ordering plaintiff to respond to the outstanding discovery within thirty days of service hereof. As you know, your client's answers to the discovery requests are long overdue. Further, if \ve do not receive VOUr cfient's Answers to the Interrogatories and formal responses to the Request for Production of Documents Nv;thin the time frame set by the Order pie will have no other alternative but to File the appropriate Motion. V y truly yours, l/ If ., A X/1/l t k 1 % Anton G. N/larz.ano AGM:sa EnCIOSnl'C 1 515 !', iAi?KET STREET 2TH Ftoc)R t PHIL?-OFLPH!A, G-^ 19102- i GS. 1 q (21 5) '569-2800 « Ft-,x (115) 569-1606 • ???ww.za.?vd!!•.c?:?, PENNSYLVANIA OFFICES: BETHLEHEM + CONSHOHOCKEN + NEW JERSEY OFFICES: JERSEY CITY + LINWOOD + MARLTON e: ?} 65 PROGRESSIVE NORTHERN INSURANCE COMPANY, as subrogee of John Daneau, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 07-298 CIVIL STEVEN COX and LUIS J. KENNEDY TRUCKING CO., Defendants IN RE: DEFENDANT'S MOTION FOR SANCTIONS ORDER AND NOW, this Z*7' day of February, 2008, a brief argument on the defendant's Motion for Sanctions is set for Thursday, April 17, 2008, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. /Michael J. Dougherty, Esquire August J. Ober, Esquire For the Plaintiff V"Anton G. Marzano, Esquire For the Defendant Kennedy Trucking rlm (20riF-S rn.v a1zs/o? ?-?T BY THE COURT, 1 +r- j WELTMAN, WEINBERG & REIS CO., L.P.A. BY: AUGUST J. OBER, IV, Esquire Attorney for Plaintiff(s) I.D. No. 94701 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 Phone: 215.599.1500 Fax: 215.599.1505 File # 04928092 PROGRESSIVE INSURANCE COMPANY vs. STEVEN J COX AND LUIS J KENNEDY TRUCKING CUMBERLAND County Court of Common Pleas No.: 07-298 PRAECIPE TO DISMISS WITH PREJUDICE TO THE PROTHONOTARY: Kindly dismiss the above matter with prejudice. WELTMAN, WEINBERG & REIS CO., L.P.A. By v AUGkf J. OBER, IV, Esquire A ev for Plaintiff C? ? ? L? ? ,"? -? ? ? r : , ? , +pT? w.Fm ? ? -: ?" ? 1 f : _ f l 4 ?! .rf. +? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Progressive Northern Ins. Co. Case No.: 07-298 As subrogee of John Daneau Plaintiff V. Steven Cox and Luis J. Kennedy Trucking Co. Defendants. PRAECIPE TO WITHDRAW MOTION FOR SANCTIONS TO THE PROTHONOTARY: Kindly withdraw Defendant, Luis J. Kennedy Trucking's Motion for Sanctions in the above-captioned matter, which is scheduled for April 17, 2008 at 2:00 p.m., in Courtroom Number 4, Cumberland County Courthouse, Carlisle, Pennsylvania. ZARWIN, BAUM, DeVITO, KAPLAN, S AER & TODDY, P.C. By: nton G. Mariano, Esquire Attorney for Defendant, Luis J. Kennedy Trucking Date: 3 /4 7 / O 1- VERIFICATION I, Anton G. Marzano, Esquire, on behalf of the Defendant, Louis J. Kennedy Trucking state that I am the attorney in the within matter and I am authorized to state that the facts set forth in the foregoing Praecipe to Withdraw Motion for Sanctions are true and correct to the best of my knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. A ton G. Marzano M CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: August J. Ober, IV, Esquire 325 Chestnut Street, Suite 1120 Philadelphia, PA 19106 An G. Marzano, Esquire Dated: 3I d 7109- ? r.s c? .'_) `.?-' r_ "Yl - ??, -_? ? ..? _ _ {ilr_? '?' _ _. 1 N _.._, - 4- 'f.. ..' ,,?t =i ?- r-?s .? ?,..? y