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Home My WebLink About00-02604 " __,' ,>~, "' ,",",,~,. ',0'<> ,_ "~. '~',; BRIAN SUNDERLAND and BILLIE JO SUNDERLAND : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs v, RICHARD C. SWOPE Defendant NO. 00-2604 CIVIL ACTION - AT LAW OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity, William E, Miller, Jr., Esquire, Chairman James E, Reid, Jr" Esquire Brian 1. Puhala, Esquire We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following Award: We find in favor of the Plaintiffs and against the Defendant in the amount of Two Thousand Seven Hundred Eleven Dollars and Ninety-Eight Cents ($2,711,98), together with the applicable delayed damages, Date of Hearing: 4 June 2002 William E, Miller, Jr" Esquire, Chairman Date of Award: 4 June 2002 James E, Reid, Jr., Esquire Brian 1. PuhaIa, Esquire AND NOW, the day of 2002, at o'clock ,m" the above Award was entered upon the Docket and notice thereof given by mail to the parties or their attorneys, Arbitrators' compensation to be paid upon appeal: $ Prothonotary By: Deputy '" .~ ~ .^'<f', __" ,_., ~__ ~O' ~ "' . -." ,., ~,InC. G"g Manning A"odo", A Professional Corporation .Accident Reconstructwn ,Engineering Servires BIOGRAPffiCAL OUTLINE OF JAMES E. FORD, JR. AUTOMOTIVE SYSTEMS ANALYST Gregory Manning President SPECIAL QUALIFICATIONS , Knowledge on the use of shop manuals and the keeping of repair records. The performing of preventative maintenance functions, diagnosing malfunctions, performing overhauls and repairs on complex gasoline and diesel powered equipment, transmission, power take-offs, transfer cases and rear axle service. Experienced in the repairs and maintenance of fire pumps, valves and other fire equipment. Knowledge of hydraulic and air brake system repairs and maintenance. Troubleshooting and repairs of starting and charging systems, automotive electrical wiring and lights. Performing repairs on steering and suspension systems. A current and validClass A Maryland drivers license with TPN endorsements. Troubleshooting and repair of air conditioning systems. The knowledge and use of shop tools and equipment. Knowledge and ability to diagnose and repair automotive computer controlled fuel and emissions, electronic ignition systems. Knowledge and ability to diagnose and repair engine cooling systems. EDUCATION AND TRAINING * Glen Burnie Senior High School, 1974 * North Arundel V ocational.Technical Center, 1974 * State of Maryland Vehide Emissions Inspection Program * Certified Emissions Technician and Inspector, Certification # 1149 * Ford Motorcraft Service Training: Certificate of Completion for Automotive Ignition Systems * General Motors Service Technology Group Training * Computer Command Control-Advanced, 1986 * Fuel Injection EFIIPFI, 1988 *. Fuellnjection, DriveAbility, 1989 * Vibration Correction, 1990 * Suspension, Alignment and Wheel Balance, 1993 * International Mobil Air Conditioning Association, Licensed Certification. in Air Conditioning, 1992 * Ford Motor Company Service Technician Service Training: Automotive Electrical, 40 hours, Automotive Electronics, 32 hours * Heavy-Duty Truck Foundation Air Brakes, 1995, 1997 * Heavy Truck Antilock Brakes, 1997 800,641,9667 I 061 ,A Turkey POlfll Road Edxewaler. Maryland 2/1J37,4025 4/0,7Y/!,OO/!O ,-",-;.','"- , ,.'-. ,- "-. " ~) , -, '. " WORK EXPERIENCE '.1'.;,' "-'~"",,,.ci "':'"';.. ie'__,"" -~ '~'.' ",,";f'" .' '.'-, . * Automotive Systems Analyst, Greg Manning Associates, Consultant * Anne Arundel County Central Services Garage, Auto Mechanic III, 1975 _ Present . * Hospital Drive Sunoco, Auto Mechanic, 1988 - 1990 (part time) * Harundale Texaco, Auto Mechanic, 1980 - 1982 (part time) * U.S. Air Force Reserves, Aircraft Maintenance Specialist, 1975 -1981 CERTIFICA TIONS * National Institute for Automotive Service Excellence (ASE), June 1994 * Multiple Master Technician Master Automobile and Truck, one of5,651 in the country. * Certified Master Automobile Technician in the following areas: Engine Repair Automatic TranslTransaxIe Manual Drive Train and Axles Suspension and Steering Brakes ElectricallElectronic Systems Heating and Air Conditioning Engine Performance Advanced Engine Performance * Certified Master Medium/Heavy Truck Technician (ASE), June 1995 Gasoline Engines Diesel Engines Drive Train Brakes Suspension & Steering ElectricallElectronic Systems 2 " " l:! .. l~ ~';"- ., .. ~i:l -, * t~ .... "-'s. ~~ ~~ at ~ .. ~ ~ ~ ~ ~ ~ !::< ~ .- ~..~ . '" L~J :: t!]r_ -.:.n.....1 ~'a~ .~ 'Si ;or.a.~ :;<itO ~pc r:;- ~ t:' l . ?3 , ,'u,"- ~, ,,' 1.- "'.'- , .. ~ .... ~ I' &> ~ ~ ~' ~ :II !'> ~ .. f . .' .. .. ~ .' ~ . - " ^ ""e ,,~' ,', - ",';'0.,- _o~:_ 0';"'"._ , \: '.', ,n, i '." ,'" . . :~:' .' . ., :;.:',i<;,,",.: ",." , ' ...f' .... "" ,i, .",.' " .',' :' .. ..": '..,. "J " :.1 .,.;, .,', f', .' ..' ',]'.. ',.,",- . '''.f' .\',:, " ...., r,:' ", '. >i. . o . :. .)) ,. . . . II . ., ,i_ ...Q . . II it.. I . . I. .,> '0". c'" 'kj ." _,' "'~;;",,, .'"'~ ":,, - ;--", ""jl gAfjI,I nc. G"g Mannb'g A"odot" A Professional Corporation .Accident RecoJ1strucrirm .Eilgineering Service's GTl!gOl)' A-1anninx Presidem November 11, 1998 Ms. Diana Berkheimer Allstate InsuranceCompany 6345 Flank Drive . Suite 1000 Harrisburg, Pennsylvania 17112 RE: Ford Cargo Van Examination Claim Number: 155- 321- 3065 GMA. Case Number: 3647.98E Dear Ms. Berkheimer: Pursuant to your request regarding an alleged loss of braking,GMA performed an examination of the Ford cargo van's brake system. GMA was informed that the driver indicated that when he applied the. vehicle's brakes the pedal traveled completely to the floorboard. This resulted in an inability to bring the van to a controlled stop. On November 2, .1998, GMA arrived at Keystone Ford Truck dealership located at 470 Pen- Har Road in Harrisburg, Pennsylvania. GMA confirmed the VIN number on the vehicle, GMA observed the vehicle as a 1990 model year, Econoline model E-350 cab and chassis. This vehicle is designed with a van-type body front section and a custom fabricated ten foot high cube style cargo body, This is referenced in photographs" 1 , 2 and 3, It is recorded on the Vehicle Identification Label, affixed to the driver's side door jamb, that this vehicle is an incomplete vehicle manufactured by Ford Motor Company in March of 1990, The Van has a gross vehiCle weight rating of 10,700 pounds, This label is represented in photograph number 4, Photograph number 5 documents information pertaining to the cube body manufactured by Utilimaster Corporation, This label is also found affixed to the driver's side door jamb, The odometer displayed a total of 81,448 miles, The van is powered by a 7,3 liter diesel engine fitted with an overdrive automatic transmission, The drive axle is a single axle configuration with dual wheels, The front steering axle is of twin I-beam configuration with single wheels, 800,641-9667 1061,A Turkey Poilll Road Edgewater. Maryland 21037,4025 410,798,()()8() ... :. fJ . . J] . .,.:. 11 .. :1 II L . :11 . . ,] . . _ 'd~ .J,' ,; <k,__", ,-' (. ,'~ .' ." '. ,,').', .--\, ,;'~';, '"-,, )<, .;;N,', 1"";<-"1 The tires were observed to be a mix of three different manufacturers, namely: ' · Front axle: . · Right rear axle: · Left rear axle: Kelly Safari SJR MIS Two matching Remington Wide Brute tires Two Uniroyal Laredo MIS tires These tires were all matching in size and documented as L T 215/85 R 16, load range D, Tire pressures were found to vary, however not significantly, Tread depths were measured and also found to vary, All of the tires were observed to measure above the minimum standard of 2/32 inches, required to pass state vehicle inspection, The van was observed to be equipped with a power-assisted hydraulic brake system, The entire system is designed as two independent hydraulic systems working in unison: one system operating the front brake assemblies and the second independently operating the rear brake assemblies at each wheel. The purpose of this design is to prevent total loss of brakes from fluid loss, A fluid leak could then render only one of the independent systems ineffective, A single, dual-function master cylinder. operates each hydraulic system independently, utilizing a common fluid reservoir. In the event. of a fluid leak, the lower portio'n of the reservoir is partitioned to retain a sufficient amount of fluid for the unaffected hydraulic system to operate, It is reasonably certain that the loss of one-half of the braking system significantly reduces the total braking capability of the vehicle, GMA removed the filler cap from the fluid reservoir, No brake fluid was visible in the reservoir. The location of the mastercylinder within the engine compartment is seen by the arrow in photograph number 6, It was discovered that the one of the two steel brake lines was broken near the tubing nut at its coimection point to the master cylinder. This condition is referenced in photograph number 7, This fractured line supplies fluid pressure to the front brake assemblies, This condition would clearly cause a major leak, loss of fluid from the system and reduced braking performance, This condition would also cause additional brake pedal travel to occur during application of the brakes. It is conceivable. that this line could have been fractured during the collision. However, it was visibly noticeable that brake line was significantly corroded (rusted), GMA removed the master cylinder and the fractured and rusted brake line for additional testing and examination, The removed master cylinder and brake line are represented in the photographs numbered 8, 9. and 10, The results of this examination will be addressed later in this report, GMA removed the wheels from the van. The components of each brake assembly were examined, measured and documented. All brake components were observed to be correctly assembled and presented the mechanical potential for proper operation during braking demands, The measurements recorded of the disc brake pads, rear brake shoes and the front disc brake rotors all exceeded the minimum standards for this vehicle and for state inspection requirements. These components were also observed, in appearance, to be in good overall condition. The rear brake drums appeared to be in good condition, however the measured inside diameter of both drums exceeded the maximum recommended dimension for replacement and consequently, would fail state inspection requirements, This condition 2 ,III f,-,. ' all, .1: III' Iii ....~. III. , ~ II , .111. II I. i 1" ~ I, 111 ; ~~ il , Ii <' * ,~ ~ ~. I' . , ,~ =,' ~ .~, ~";,,,;,:,__,, c ' "' , '~__' " . would not, in GMA's opinion, contribute to, or cause the type of brake failure that was' alleged to have occurred, GMA discovered no additional problems in the remainder of the van's brake system and hydraulic-related components, The parking brake system was examined and observed to be in good working order, The master cylinder was bench tested and determined to function properly without any problems, GMA disassembled the master cylinder to inspect the internal working components and seals, All components were observed to be in good condition and working order.. There were no signs of internal or external fluid leakage, The rusted, broken brake line and tubing nut were examined under a microscope, These items were photographed under magnification and are represented in the photographs numbered 11 through 14, Arrows in photographs 13 and 14 indicate areas where the rust appears to have eaten completely through the metal wall of the steel tubing, This is the rnost likely location and cause for the type of brake failure described, In summary, GMA has determined within a reasonably degree of certainty, that the rusted condition of the brake line is responsible for this brake failure. This opinion is based on the fact that once the rusting process created a hole in the steel brake line, the loss of fluid pressure rendered the front brake assemblies inoperable, This condition would additionally, . cause the brake pedal to increase its travel toward the floorboard, Additionally, by the design of the brake fluid reservoir and the observations of the mechanical condition of the rear brake system, GMA is of the opinion that ",'total loss of the van's brakes did not occur. However a majority of the task of slowing a vehicle is performed by the front brakes. In this matter, the loss of the front brakes served only to considerably reduce the ability to stop the van, It is additionally conceivable that the distance needed to stop a vehicle, with only the rear brakes operating, would be significantly increased, Please feel free to contact GMA, should any additional questions arise in this matter. Resp rr~SUbmj ~z:,. James E. Ford, Jr. Automotive Systems 1\nalyst ASE Certified Master AutomobilelTruck Technician 3 ". "'".. ,', ~ lLi:, STAn FARNI A ALLSTATE INSURANCE COMPANY ALTOONA MCO #4 SHERATON DRIVE ALTOONA, PENNSYLVANIA 16601 PHONE: (814) 940-7400 FAX: (814) 941-6116 .. " INSURANCc~ CD LOG NO 1103 -0 10-05-98 3:55 PM ESTIMATE CLAIM INFORMATION CLAIM # 1553213065B03 INSURED RICHARD SWOPE, CLAIMANT SUNDERLAND, BRIAN INSPECTION TYPE APPRAISER NAME LICENSE # WORK PHONE ADDRESS CITY STATE ZIP POLICY # LOSS DATE LOSS TYPE 657829538 09-25-98 LIABILITY FIELD KEITH WALTER 3000425 (814) 940-7400 #4 SHERATON DR. ALTOONA 16601- PA FAX INSP DATE LOCATION CITY STATE (814) 941-6116 10-05-98 RESD OWNER SUNDERLAND, BRIAN . RD 1 BOX 1991 THREE SPRINGS PA 17264- WORK# HOME#(814) 448-0080 REPAIR DEFAULT . CAR IN VEHICLE 1988 GMC 025 STD 2 DR CONVERSION VAN 8CYL GASOLINE 5.7 , OPTIONS DUAL HEAD LAMPS POWER BRAKES POWER STEERING AUTOMATIC TRANS SIDE CARGO DOOR GLASS LT AND RT SIDE PANEL GLASS AIR CONDITIONING HINGED SIDE CARGO DOORS BODY COLOR CONDITION LICENSE # LICENSE STATE i'iHITE/ BLUE FAIR BCX8485 PA MILElI.GE VIN CODE VEH INSP # 92,424 2GDEG25KXJ4504238 U633 REMARKS: ** ALL SUPPLEMENTS REQUIRE PRIOR APPROVAL** CALL (814) 940-7502 ~HIS IS AN ESTIMATE ,AND INSPECTION ONLY- NOT A SETTLEME$T OFFER ANY DAMAGE NOT Ll,STJ1;!) MUST BE SHOWN TO BE RELATED TO THIS LOSS.. VRC, REAR T.V. AND POSSIBLE WIRING SHORT OPEN UNTIL TEAR DOWN COMPLETE PART ODE OPERATION PRICE LABOR RT BODY SIDE PANEL, LEFT Panel,Bodyside Outer LT 0389 Repair 4.0* SM Panel,Bodyside Outer LT 0389 Refinish L5* RF -1- ,.u.., .- - ~ ',;.. '" 1988 GMC G25 STD 2 DR CONVERSION VAN - C~AIM # 1553213065B03 LOG 1103 -0 10-05-98 3:55,PM ,END COLOR WITHIN , - LOWER STRIPE PER ,Rear Supt,RR Bumper Outer 464392 Brkt,RR Bmpr Inr Lwr 14083025 Brkt,RR Bmpr Inr Lwr 14083025 REAR BODY, LAMPS AND Door Assembly,Back PANEL REFINISH REPAIR AREA Refinish 1. 5* :tF* Competitive Part Replace OEM Replace OEM Replace OEM 0565 LT 0569 GM PART LT 0575 GM PART RT 0576 GM PART FLOOR PAN LT 0511 105.00 11.54 1. 1 SM 0.1 SM 21. 16 INC SM 21.16 INC SM Replace Salvage Markup Repair LT 0511 Refinish Surface Edge RT 0512 Replace Salvage Markup 25~ >>LKQ PARTS AVAILABLE AT MCGEES 814-635-2774 REF# 37-10-05 >>PRICE INCLUDES LADDER RACK AND SPARE RACK >>PREP TIME GIVEN TO REMOVE OLD PAINTED STRIPES Shell,Back Door RT 0512 Refinish Surface Edge 0542 Repair 0562 R&I Assembly 0591 Repair 0591 Refinish Surface 300.00* 1.6 SM 25% PREP LKQ PARTS Shell,Back Door 3.0* SM* 3.2 RP 2.0 1.2 Door Assembly,Back 300.00* 2.3 SM 3.2 RF 2.0 1.2 Sill,Rear Cross Carrier,Spare Tire Extn,Rear Pan Extn,Rear Pan 1. 0* SM 0.5 SM 4.0* SM 0.9 RF INC* 0.9 MANUAL ENTRIES rear ladder spare - cover spare - cover Set-Up For Realignment PULL & ALN REAR BODY rt front seat >>REALIGN SEAT - NUTS AND Clear Coat CORROSION PROTECTION Cover Car Exterior custom painted stripes CONVERSION TOP >>REATTACH TOP AND CHECK R&I Assembly Competitive Part Refinish M31 Repair Repair Repair BOLTS MISSING ARE PRIOR MOl Refinish M14 Competitive Part Competitive Part Refinish Repair FOR ADD'L DAMAGE 0.6* SM* 0.5* SM'" 1. 0* RP* 2.0* FR 3.0* FR* 1. 5* SM* 2.0* RF S:,;" 5.0* RP':. 1. 0* SN" 25.00* 10.00* 10.00* 27 ITEMS FINAL CALCULATIONS & ENTRIES PARTS GROSS PARTS OTHER PARTS PAINT MATERIAL $ $ $ 53.86 750.00 250.00 ** MARKUP DISCOUNT ADJUSTMENTS -2- I ~>'1 ~"'"~" ~~ ~a"~ ~ " II- , C'_ -.:..~~ ~ " MC G25 STD 2 DR CONVERSION VAN '~M # 1553213065B03 LOG ,N'"RAN< . TE @ 10% $. 5.39 $ TEMS $ PARTS TOTAL TAX ON PARTS & MATERIAL @ 6.000% 1103 -0 10-05-98 3:55 PM 150.00 $ 1,198.47 $ 71.91 LABOR 1-SHEET METAL 2-MECH/ELEC 3-FRAME 4-REFINISH 5-PAINT RATE $ 30.00 $ 35.00 $ 35.00 $ 30.00 $ 15.00 REPLACE HRS 6.7 18.3 REPAIR HRS 14.5 $ 5.0 $ $ 636.00 175.00 549.00 LABOR TOTAL TAX ON LABOR @ 6.000% TAX ON SUBLET @ 6.000% SUBLET REPAIRS TOWING STORAGE $ 1,360.00 $ 81. 60 GROSS TOTAL $ 2,711.98 $ 2,711. 98 NET TOTAL PXN Y/03/01/00/02/00 CUM 03/01/00/02/00 Geocode: 16601 ALTOONA SPPL No ADP PENPRO W0330 ES LOG 1103 -0 10-07-98 14:28:09 REL 3.30 CD 09/98 COPYRIGHT, AUTOMATIC DATA PROCESSING, INC. 1997 ** USER-ESTABLISHED THRESHOLD FOR PAINT MATERIAL HAS BEEN REACHED. ANY ADDITIONAL MATERIALS MAY REQUIRE FURTHER APPROVAL. ** FRAUD PREVENTION' - PENNSYLVANIA WARNING ANY PERSON WHO KNOWINGLY AND WITH INTENT TO INJURE OR DEFRAUD ANY INSURER FILES AN APPLICATION OR CLAIM CONTAINING FALSE, INCOMPLETE OR MISLEADING INFORMATION SHALL, UPON CONVICTION, BE SUBJECT TO IMPRISONMENT FOR UP TO SEVEN YEARS AND PAYMENT OF A FINE OF UP TO $15,000. CUSTOMER'S CHOICE OF REPAIR SHOPS IT IS TO OUR MUTUAL INTEREST THAT YOU RECEIVE PROMPT AND COUTEOUS SERVICE ALONG WITH QUALITY REPAIR WORK AT A FAIR PRICE. IF YOU HAVE A PREFERENCE FOR A PARTICULAR SHOP, YOUR ADJUSTER WILL WRITE OR APPROVE AN ESTIMATE OF REPAIRS WITH THAT SHOP BASED ON COMPETITIVE PRICES IN THE AREA. NON ORIGINAL EQUIPMENT MANUFACTURER PARTS THIS ESTIMATE HAS BEEN PREPARED BASED ON THE USE OF ONE OR MORE REPAIR PARTS SUPPLIED BY A SOURCE OTHER THAN THE MANUFACTURER OF YOUR MOTOR VEHICLE. ---------------------------------------------------------------------------- TO ALL REPAIR FACILITIESi.BEFORE USING AN AFTERMARKET SHEETMETAL PART, -3- ~ - . ~ . .... 454 A,2d 645 (Cite as: 308 Pa.Super. 498, 454 A.2d 645) C Superior Court of Pennsylvania, Joseph CHIODO, Appellant, v, GARGLOFF & DOWNHAM TRUCKING COMPANY, Submitted April 12, 1982, Decided Jan, 7, 1983, Motorist brought action against trucking company to recover for personal injuries and property damage sustained when he was struck from the rear in a chain collision occurring when defendant's truck's brakes failed, The Court of Common Pleas, Allegheny County, Civil Division, No. GD 75,15269, Narick, J" entered judgment for defendant, and plaintiff appealed, The Superior Court, No, 355 Pittsburgh 1980, held that even though jury was properly instructed on "assured clear distance ahead" rule, the "sudden emergency" doctrine was inapplicable, Reversed, West Headnotes [II Negligence ~292 272k292 (Formerly 272kI3) "Sudden emergency" doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately; the doctrine is successfully applied as a defense where defendant proves he did not create the emergency and where he responded in a reasonable fashion, [2] Automobiles ~ 150 48Ak 150 [2] Automobiles ~159 48Ak159 "Assured clear distance ahead" rule requires that a driver operate his vehicle in. such a fashion that he is always able to stop within distance he can clearly see; where, however, a sudden emergency arises inside this range, the rule is inapplicable, ~ ,,,"'- " Page 2 [3] Automobiles ~246(39,1) 48Ak246(39,1) (Formerly 48Ak246(39)) In motorist's action against trucking company to recover damages for injury and automobile dama2e sustained when he was struck from the rear in -a chain reaction collision occurring when defendant's truck's brakes failed, trial court properly instructed jury on "assured clear distance ahead" rule, but "sudden emergency" doctrine was inapplicable since brake failure was not type of unforeseen occurrence contemplated by the doctrine, **645 *499 Thomas L. Cooper, Pittsburgh. for appellant. Matthew R. Wimer, Pittsburgh, for appellee, Before HESTER, JOHNSON and POPOVICH, J], PER CURIAM: At noon on May 16, 1975, on a sunny day, when road conditions were dry, the appellant. Joseph Chiodo, was operating his 1967 Chevy, Nova station wagon on Saw Mill Run Boulevard in the City of Pittsburgh, His vehicle was the first to stop in the right hand lane for the traffic light at the juncture of South Main Street and Saw Mill Run Boulevard, 'Another automobile and a pick-up truck were stopped immediately to **646 the rear of appellant's vehicle in the same lane of traffic, All three vehicles waited for a change in the light. Before the light changed, however, an eighteen, wheel tractor-trailer unit operated by Bruce Ezra, while acting within the scope of his employment with the appellee, slammed into the rear of the pick- up truck causing a chain reaction of impacts and pushing the appellant's station wagon into the center of the intersection, *500 As a result of the accident, the appellant's vehicle was damaged in excess of its fair market value, Furthermore, the appellant sustained injury to his head, neck and back which required medical treatment on a regular basis for a period in excess of one year and which prevented him from returning to work for approximately 15 months. following the accident. The appellee's driver was transporting a load of Copr, @West2002 No Claim to Orig, U,S, Govt, Works. ~.~~ ~...~ , . " 454 A,2d 645 (Cite as: 308 Pa.Super. 498, *500, 454 A.2d 645, **646) food at the time of the accident, In spite of checking the braking system au both the tractor and trailer at the beginning of his run at Logansport, Indiana, and fmding it to perform soundly, the appellee's driver began to experience braking problems while descending the Parkway West in Pittsburgh, two or three miles prior to the scene of the accident. As a result of the accident and injuries sustained therein, the appellant filed a trespass complaint in the Court of Common Pleas of Allegheny County on June 30, 1975. Following a trial by jury, a verdict was returned in favor of the appellee on September 25, 1979, A Motion for a New Trial was filed and subsequently denied, This appeal is taken from the Order denying the new trial and entry of judgment, The appellant argues that the verdict was clearly against the weight of the evidence, He specificalIy alleges that the indisputable rear-end collision was "extremely strong evidence of negligence" and that the appellee failed to carry its burden of proving the defense of the "sudden emergency" doctrine rendering the court's jury instruction on the "sudden emergency" doctrine improper, We agree in part, and thereby reverse and remand for a new trial, [I] The "sudden emergency" doctrine is available as a defense to a defendant who suddenly and unexpectedly fmds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately. Carpenter .v, Penn Central Transportation Co., 269 Pa,Super. 9. 409 A,2d 37 (1979): Stacy v, Thrower Trucking, Inc., 253 Pa,Super, 150, 384 A,2d 1274 *501 (1978), The doctrine is successfully applied as a defense where the defendant proves that he did not create the emergency, Westerman v, Stout, 232 Pa,$uper. 195, 335 A,2d 741 (1975): Toff v, Rohde, 208 Pa,Super, 411, 222 A,2d 434 (1966), and where he responded in a reasonable fashion, Westerman, supra; Johnson v, Pennsylvania Railroad Company, 399 Pa, 436, 160 A,2d 694 (1960), The party confronting the peril simply is not expected to exercise that same degree of care mandated by normal and foreseeable circumstances, In fact, he is not required to exercise the highest or even an ordinary degree of judgment; therefore, he will notbe responsible for any mistake of judgment in eJl,tricating himself from the impending dangerous situation, - ~ ~ """ ," ~, ~'~I Page 3 In Brown v, Schriver, 254 Pa,Super. 468, 386 A,2d 45 (1978), the plaintiff was a rear seat passenger in an automobile operated by the defendant. The defendant was traveling at a lawful rate of speed when he encountered a curve, applied the brakes and slid on gravel forcing his vehicle off the road, through a barbed wire fence and toward a frontal impact with a tree, On appeal in Brown, supra, the plaintiff argued that the Court erred in instructing the jury on the "sudden emergency" doctrine because the instruction tarnished the jury's understanding and consideration of whether the defendant violated the "assured clear distance ahead" rule, [21 At the outset of its analysis, the Brown court considered the role that both rules play, TIle "assured clear distance ahead" rule requires that a driver operate his vehicle in such a fashion that he is always able to stop within the distance hE **64; can clearly see, Enfield v. Stout, 400 Pa, 6, 161 A,2d 22 (1960), Where, however, a sudden emergency arises inside this range, then the "assured clear distance ahead" rule is inapplicable, Hollern v, Verhovsek, 220 Pa.Super, 343, 287 A,2d 145 (1971) The Brown court, citing Unangst v, Whitehouse, 235 Pa,Super. 458, 344 A,2d 695 (1975), concluded that the "assured clear distance ahead" rule applied to those situations where the defendant's vehicle was approaching a stationary object, where~ *502 the "sudden emergency" doctrine applied to objects that were unforeseeably thrust into the driver's path, In accordance with this guideline, thE Browr. court held that the gravel was' a stationary object dictating application of the "assured clear distance ahead" rule; bence, the lower court was reversed for having erred in instructing the jury on the "sudden emergency" doctrine, The same result was reached in Hanlon v, Sorenson, 289 Pa,Super, 268, 433 A.2d 60 (1981), [3] The lower court here properly instructed the jury on the "assured clear distance ahead" rule;. no objects were suddenly and unexpectedly thrust in front of the appellee's vehicle thereby comJlelling him to react to the appellant'S detriment, The "sudden emergency" doctrine was not designed for the purpose of aiding the operator of a vehicle developing unforeseen defective mechanisms. These defects were not those types of unforeseen occurrences contemplated by the .. sudden emergency" doctrine, Whether these defects are attributed to any negligence on the appellee'S part is Copr.1Q West 2002 No Claim to Orig, D,S, Govt. Works - ~ .- ,. ., ~ ~ ~~ . ,"". " ;~ 454 A,2d 645 (Cite as: 308 Pa.Super. 498, *502, 454 A.2d 645, **647) Page 4 determined by regular st<mdards of duty of care and breach thereof. Order denying post trial motions is reversed; judgment is reversed, and a new trial ordered, END OF DOCUMENT Copr, @West2002No Claim to Orig, U,S, Govt, Works i ~ ~''''"'''' ~~, ~.= ~~,~, .'--J~i._.lIififII1" 507 A,2d 822 (Cite as: 352 Pa.Super. 163, 507 A.2d 822) C Superior Court of Pennsylvania, Augustus J, PAPANDREA, Sr. and Geraldine l. Papandrea, His Wife, Appellants v, Barry 1. HARTMAN, Argued Sept. 17, 1985, Filed Feb, 26, 1986, Reargwnent Denied April 30, 1986, Motorist whose car was struck from hehind hy another vehicle while stopped at intersection sued other motorist for trespass, The Court of Common Pleas, Civil Division, Dauphin County, No, 570 S 1983, Lipsitt, 1., found for defendant, and plaintiffs appealed, The Superior Court, No, 569 Harrishurg 1984, Wickersham, J" held that: (I) instructing jury on "assured clear distance" rule was not improper, and (2) instructing jury or sudden emergency doctrine was improper where defendant failed to show hrake failure actually occurred, Reversed and remanded, West Headnotes [I] Automohiles ~246(56) 48Ak246(56) Charging jury on "assured clear distance" rule in addition to "sudden emergency" doctrine in case in which morarist was involved in rear-end collision with car stopped at intersection was not improper. [21 AutomObiles ~246(39,1) 48Ak246(39,1) (Formerly 48Ak246(39)) Motorist involved in rear-end collision with stopped car at intersection was not entitled to "sudden emergency" charge where he offered no evidence other than his own testimony to satisfy burden of showing that brake failure had actually occurred, [3] Automobiles ~242(l) 48Ak242(l) Motorist involved in rear-end collision who claimed that his hrakes failed had burden of showing that they did fail and that they failed through no fault of his own. " ~ -~ ~~ ";",, ,""M>""'"". Page I [4] Automobiles ~244(5) 48Ak244(5) Person who alleges temporary brake failun in rear, end collision with another vehicle may not be exculpated by defense oj "sudden emergenC)" doctrine based only on such person's sole, nonexpert, testimony, **823 *164 John 1. Krafsig, Harrisburg, for appellants, Richard B, Swartz. Harrisburg, for appellee. Before WICKERSHAM, JOHNSON, J], CIRILLO and WICKERSHAM, Judge: This is an appeal from the judgment of the Court of Common Pleas of Dauphin County. entered on a jury's verdict in favor of defendant,appellee, Barry J, Harttnan, and against plaintiffs, Augustus 1. Papandrea, Sr, and Geraldine l. Papandrea, appellants, in a trespass action growing out of an automobile collision, We reverse, Viewing the evidence in a light most favorable to the nonmoving party, defendant,appellee, the following appears of record: At approximately 3:30 P,M, on the 28th of May, 1982, appellee was driving his automobile on North Progress A venue in Susquehanna Township, Dauphin County, It was not dark, and Hartman was moving at a reasonable rate of speed since the roadway was wet. Hartman was approaching an intersection and could see, some 600 feet ahead, that another vehicle had stopped and its driver (appellant herein) was waiting for the traffic signal to change in his favor. The other vehicle was stationary in the left tnrning lane, Hartman slowed to enter the turning lane and began to apply his brakes, Harttnan was traveling at less than 5 miles per hour, when his brakes allegedly failed, causing his vehicle to strike that of appellants, *165 Appellant, Augustus Papandrea, was rendered totally disabled from the collision, The case proceeded to trial and a jury found for Harttnan, Post-verdict motions were denied and judgment was entered for appellee and against plaintiffs,appellants, This appeal timely followed. Copr. @ West 2002 No Claim to Orig, V,S, Govt. Works ,~ "-Ii " Ji 507 A,2d 822 (Cite as: 352 Pa.Super. 163, *165, 507 A.2d 822, **823) On appeal, appellants present five issues for our review, [FNI] We address the first 01 **824 appellants' issues, which centers on the following relevant portion of the instruction to the jury by the court below: FN1. Appellant raises the following issues: 1. Did the lower court judge by improperly charging the jury on both the Sudden Emergency Rule and the Assured Clear Distance Emergency Rule, which are mutually exclusive doctrines, to totally confuse the jury as to demonstrably cause a miscarriage of justice; and to further cause a gross and palpable error in the verdict of the jury, by failing to correct the charge upon timely request and objection, but then to compound said error by attempting to overrule a Superior 'Court decision which holding he instructed the jury and which clearly demonstrated his error in charging on: the Sudden Emergency Doctrine in the first place? 2. Did the lower court judge erroneously permit the jury to consider the defense of b~ake failure, and demonstrably causing the shocking verdict of no recovery of a totally disable~ Plaintiff, Appellant, when there was absolutely nb competent proof of brake failure from any competent source? 3, Did the failure of the lower court 'to properly sustain timely objection in the presence: of the jury, to erroneous highly prejudicial and harmful remarks of counsel for the Appellee; ,both in his closing remarks to the jury on facts not in evidence, and which went to very issue of liability, but to further allow said counsel to demean the expert testimony of an expert actuarial witness on facts not in evidence, and against facts in evidence to form the hypothetical question? 4, Did the failure of the court to properly charge on applicable Points for Charge, which errors were properly and timely preserved, including a totally inadequate charge of consortium, nor a proper charge as to the fact there was no requirement of mathematical exactness to establish pain and suffering and the requirements thereof, further cause the shocking verdict of the jury? 5. In view of the uncontradicted evidence that Appellant, Augustus J. Papandrea, Sf., was totally disabled and there was not one scintilla of evidence of any negligence by him, was the verdict of the jury, in view of the totality of major trial errors committed, a miscarriage of justice and shocks judicial conscience to require the grant of a new trial? Brief for Appellants at 3,4, We note that these issues were properly preserved for our review. *166 [THE COURT]: Now, I want to point out to you some of the law that is specifically involved in a situation of this type, Now, remember that I '--.'''''''- ",' <~ ',W,' Page 2 did tell you that recovery is based on negligence, The Defendant has pointed out in his request to the Court that this Defendant cannot be negligent because he asserts that the Defendant had brake failure and because of the brake failure the Defendant was not involved in any act of negligence, There is some law to this effect that when one finds himself in a position of danger that is not the result of his negligence, he is not responsible if he makes a mistake in judgment in getting out. An honest exercise in judgment is all that is required of him even if he could have done better had he had time to deliberate, There is also some law to the effect that where there is mechanical failure such as a brake failure , and the party neither knew of it nor had reason to know that his mechanical failure would take effect and if in this particular case if you find that the action of the Defendant from the time of thE brake failure until the moment of impact were not negligent, then of course the Plaintiff--excuse me, the Defendant, would be entitled to the invocation of this doctrine which we refer to as sudden emergencies. On the other hand, there is a lot of law which is favorable to the Plaintiff and this has been referred to by the Plaintiff as the ~!!red clear dist"ncBo- ahead rule, That rule reads as follows: Any per;on having a vehicle on the highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface and width of the highway and of any other restrictions or conditions when and where existing; and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person, nor at a speed greater *167 than will permit him to bring the vehicle to a stop within the assured clear distance ahead, Now, of course, you have got a lot of things to consider in that connection because we have had the Defendant who claims that he was going at something like five miles an hour; on the other hand, you have the Plaintiff pointing out that his car was damaged in the rear to the extent of two hundred and some dollars, You have a dispute as to that by the Defendant because the Defendant asserts that he observed the car and there was no damage that he was able to observe, This all goes into the question of credibility, In connection with this conflict between the sudden emergency rule and the assured clear distance rule, there is some other law which is to the effect Copr, cg West 2002 No Claim to Orig, U,S, Govt. Works ~i ',\~" ~ lLa II ~, -~^> 507 A,2d 822 (Cite as: 352 Pa.Super. 163, *167, 507 A.2d 822, **824) that the sudden emergency doctrine. where it is used in connection with the defense. you must consider the assured clear distance rule and in a case of this nature where the Defendant alleges that in the operation of the vehicle he developed an unforeseen defect in mechanisms it has been said that these alleged defects are of the type of unforeseen occurrences contemplated by the rule and that a person cannot invoke the sudden emergency doctrine if he is not driving his car at an assured clear distance and takes that chance of having an accident. Of course, again, I merely point out those rules to you, Perhaps, I can read this, This is what one of the cases has said: 'A defendant cannot invoke the sudden emergency doctrine as a defense to the assured clear distance ahead rule, where he alleges in the operation of his vehicle the developing of unforeseen defective mechanisms, as these alleged defects are not those types of unforeseen occurrences contemplated **82~ by the sudden emergency doctrine,' So much for that. There were no witnesses to the accident and you will have to determine whether or not, under these rules, the rules which I have given you in connection with negligence, the sudden emergency rule and the assured clear *16B distance rule, whether or not this Defendant was negligent, Now, if you determine from the evidence that there was no negligence on the part of the DefendaIlt which was the proximate cause of the injuries to the Defendant--to the Plaintiff--the Plaintiff cannot recover. That is the end of the case and, of course, that was argued to you by the defense attorney, On the other hand, if you conclude from the evidence that the Defendant was negligent and that his negligence was the proximate cause of these injuries to this Plaintiff, then your verdict would be for the Plaintiff and you would then come to consider the question of damages, Now, we are not suggesting to you by what we have just said that the Defendant was negligent. That is !lot our function, You are the ones that have to make that determination, Once you make that determination then you come to this question of damages, R,R, at 98a,101a, -,< ...~L&., ~ /Jd.< " -~ -', ^~ ~~" Page 3 Clear Distance Ahead Rule," [FN3] FN2. First recognized in 1854, see Railroad Company v, Aspell, 23 Pa, 147 (1854), the "sudden emergency doctrine" is a defense available [0 a driver of a motor vehicle who suddenly and unexpectedly finds himself confronted with a perilous situation which he did not create, that permits no opportunity to assess the danger and appropriately respond. Carpenter v. Penn Cemral Transportation Co" 269 Pa,Super. 9, 409 A,2d 37 (1979). "A sudden and clear emergency may be a dust cloud, a moving object, a sudden blocking of the road, the sudden swerving of other vehicles or ... blinding lights." Unangst v. Whitehouse, 235 Pa,Super. 458, 464, 344 A,2d 695,699 (1975). FN3. The "assured clear distance ahead rule" requires that a driver operate his vehicle in such a fashion that he is always able to stop within the distance he can clearly see, 75 Pa,C,S, ~ 3361. "[l1he 'assured clear distance ahead' rule applied to those situations where the defendant's vehicle was approaching a stationary object, whereas the 'sudden emergency' doctrine applied to objects that were unforeseeably'thrust into the driver's path." Chiodo v, Garg/off & Downham Trucking Co" 308 Pa,Super. 498, 501,02, 454 A,2d 645, 647 (1983). Where a "sudden and clear emergency arises inside the range of the previously assured clear distance, the rule has been held. inapplicable," Unangst v. Whitehouse, supra at 464, 344 A,2d at 698 (emphasis in original), Initially, il is well set1led that: *169 where the accuracy of a charge is at issue, an appellate court must look to the charge in its entirety against the background of the evidence to delermine whether or nol error was committed and whether that error was prejudicial to the complaining party, Berry v, Friday, 324 Pa,Super. 499, 472 A,2d 191 (1984) Slavish v, Ratajczak, 277 Pa,Super, 272, 419 A,2d 767 (1980), We must review the charge in this light. Elder v, Orluck, 334 Pa,Super. 329, 342, 483 A,2d 474, 481 (1984) (allocatnr granted), In reviewing the charge we must fIrst determine whether a sudden emergency was proven by appellee, and, then, if the facts giving rise to the emergency leave no room for doubt, the issue becomes a matter of law for the judge, Palumbo v, DeStefano, 329 Pa,Super. 360, 366,478 A,2d 828,831 (1984), Appellants' allegation of error is that the trial judge improperly charged the jury on bot/; the "Sudden Emergency Doctrine" [FN2] and the "Assured Copr. <Q West 2002 No Claim to Orig, V,S, Govt. Works This analytical framework must be built for "the presence of a sudden emergency negates the ""~ '~. ~. - _.' . ,. ~ ",~~IJ ~ . ,L.~ 507 A,2d 822 (Cite as: 352 Pa.Super. 163, *169, 507 A.2d 822, **825) applicability of the 'assured clear distance' rule [,]" Id, at 365, 478 A,2d at 831:. Chiodo v, Gargloff & Downham Trucking Co" 308 Pa,Super. 498, 454 A,2d 645 (1983) (where a sudden emergency arises the "assured clear distance ahead" rule is inapplicable), The distinction is relevant as: **826 [tjhe case law in this Commonwealth indicates that the sudden emergency doctrine and the assured clear distance rule are mutually exclusive points of law and that in a given factual situation it is error to charge on both doctrines, .Sulliva1l v, Wolson, 262 Pa,Super, 397. 396 A,2d 1230 (1979); Brown v, Schriver, 254 Pa,Super. 468. 386 A,2d 45 (1978), Tbis is based on the rationale that the assured clear distance rule applies to essentially static or static objects, includirtg vehicles moving in the same direction, while tile sudden emergency doctrine applies only to moving instrumentalities thrust into a driver's path of travel. Brown v, Schriver, supra, However, *170 there is case law for the proposition that it is proper for the court to charge on both points of law if the facts do not conclusively establish the existence of a sudden emergency situation, Potenburg v, Varner, 284 Pa,Super. 19, 424 A,2d 1370 (1981), Elder v, Orluck, supra at 343-44, 483 A,2d at 481,82, Therefore, at the apex of our decision is whether a "sudden emergency" actually exists under the facts of this case, The well,reasoned Chiodo opinion instructs us that "[t]he 'sudden emergency' doctrine was not designed for the purpose of aiding the operator of a vehicle developing unforeseen defective mechanisms, These defects were not those types of unforeseen occurrences contemplated by the 'sudden emergency' doctrine," Id, at 502, 454 A,2d at 647 (emphasis added), In Chiodo this court found that the brake failure of a tractor-trailer did not give rise to a l'sudden emergencytl defense. We note additional, if not conflicting, precedent in this state's courts, Our supreme court ill Gilligan v, Shaw, 441 Pa, 305, 272 A,2d 462 (1971), and our court en bane in Hartman v, Gieraltowski, 198 Pa,Super, 316, 181 A,2d 688 (1962), appear to recognize vehicular brake failure as justification for the application of the "sudden emergency" doctrine, We must, t!1erefore, accept appellee's defense of brake failnre, if proven, as a sndden emergency, ~~~~ ~ ~ ......~'. """""ik:i:, ,~"~, Page 4 [I] Accepting, arguendo, that appellee was entitled to have the jury charged on the "sudden emergency" doctrine, the trial court's additional charge on the I! assured clear distance II rule was not improper. "[W]here the evidence leaves some doubt as to whether an emergency situation existed, there is a question of fact for the jury, and the jury should be instructed on both the assured clear distance ahead and sudden emergency doctrines, The dual instructions assures that the jury has the applicable law for whatever factual scenario they find occurred, " Ernst v, Ace Motor Sales, Inc, , 550 F,Supp, 1220, 1226 (E,D,Pa, 1982) affirmed without opinion, 720 F,2d 661 (3d Cir.1983 *171 (emphasis in original); Potenburg v, Varner, 284 Pa, Super , 19, 424 A,2d 1370 (1981), Appellants, therefore, cannot be granted relief based on this allegation of error. Appellants' second contention of error is that the trial court erroneously permitted the jury to consider the defense of brake failure where no competent proof of such an alleged failure was produced at trial. With this we must agree, "The 'sudden emergency' doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately," Chiodo, supra at 500, 454 A,2d at 646, "A party who pleads the existence of an emergency bears the burden of proof on this allegation,' Stacy v, Thrower Trucking Inc, , 253 Pa,Super. 150, 157, 384 A,2d 1274, 1277 (1978), Instantly, appellee alleges brake failure as the proximate cause of the rear- end collision which resulted in the ultimate injuries to appellant husband, [2] Appellee, at trial, offered no evidence other than his own testimony to satisfy his burden of showing that brake failure had actually occurred, a necessary requisite in the application of th, sudden emergency **827 doctrine to this case, Accordingly, appellee should not have received a sudden emergency charge at all. As our supreme court noted in Pascale v, Simmons, 406 Pa, 476, 178 A,2d 549 (1962): It is an easy thing for any driver involved in an accident to say that his brakes failed, but one can derive from such a remark many interpretations Copr. rQ West 2002 No Claim to Orig, V,S, Govt. Works "~,,~ -- .L ~-'..'-~ . .~.- ~~ 507 A,2d 822 (Cite as: 352 Pa.Super. 163, *171, 507 A.2d 822, **827) which do not exonerate the driver, The brakes, for instance, may have failed becanse the driver did not apply them properly, or at alL The brakes may have failed becanse they were defective and the driver knew the were defective, e e al ed because the driver was traveling at such speed that they could not catch hold in time to stop the *172 car within the short distance still left him before reaching the object in his path, Then, of course, it is not impossible that [the driver] was telling an untruth when he said his brakes failed, His utterance may have been a glib attempt to extricate himself from the difficult situation in which he found himself. Id, at 480, 178 A,2d at 551. In addition, we agree with the panel in Flavin v, Aldrich, 213 Pa,Super. 420,425, 250 A,2d 185, 187 (1968) 'en bani ), that "testimony as to an aU,tomobile's braking system 'certainly dealt with a subject that was not common knowledge,'" It is noted that under cross, examination appellee acknowledged that he was not a mechanic, R,R, at 75a, The jury was informed, through appellee's testimony, that immediately prior to and following the accident, the brakes of his automobile performed without flaw, Appellee thereafter drove some ISO miles hack to his home in New Jersey, He took the vehicle to tile Chevrolet dealer from whom he purchased the car, This dealer found no evidence of brake failure, Another dealer inspected the vehicle and found there was no defect in the brake system and that the system was operating as designed, In addition, a third individual, a Chevrolet District Manager, inspected the braking system and informed appellee that no defects were present in the system, [31 When appellee said his brakes failed, it was his burden to show that they did fail and that they failed through no fault of his own, Pascale v, Simmons, supra, For example, in Floravit v, Kronenwetter, 255 Pa,Super, 581, 389 A,2d 130 (1978) ,en ban, ) the defendant was traveling at a distance of one car length behind the plaintiff's vehicle, when at a speed of less than 5 m,p,h" the defendant lost braking power, and his truck collided with plaintiff's stationary automobile, causing injuries to plaintiff, At the trial, the defendant called a mechanic who testified that an examination of the truck revealed a ruptured brake hose, The witness further testified .~ - - , ,~ ~h ". Page 5 that such a *173 rupture would cause sudden failure of the braking system, The defendant also called the responding police officer who testified that he had engaged the brake pedal at the accident scene, rmding no pressure on the pedal, which indicated brake failure, The court properly concluded, based on the above testimony, that the defendant was not negligent in failing to anticipate brake failure, Similarly, in Flavin v, Aldrich, supra, the defendant therein alleged brake failure as the cause of a rear- end collision, The defendant produced the opinion evidence of a witness who had tested the brakes and who unequivocally stated that the brakes were defective because of a loss of brake t1uid prior to the accident. The defendant also testified on her own behalf that her brakes failed) resulting in tht: accident, This was sufficient evidence on appeal to support a rmding of defective brakes, [4] We are called upon in this case to determine whether a person who alleges temporary brake failure in a rear-end collision with another vehicle, may be exculpated by the defense of th, "sudden emergency" doctrine based on only such person's sole, non-expert, testimony, Although appellee may certainly testify as to his recollection of the facts surrounding the accident, we do not find thal same personal **828 opinion to satisfy the requisite burden in this case, We are not convinced by examination of the entire record that appellee has produced any competent evidence to substantiate actual brake failure other than his own BALD assertion thereof, A charge on sudden emergency, under the totality of circumstances, was error, and a new trial is thereby mandated, "The jury may not be permitted to reach its verdict on the basis of speculation or conjecture; there must be evidence upon which its conclusion may be logically based[,j" Cuthbert v, City of Philadelphia, 417 Pa, 610, 615, 209 A,2d 261,264 (1965), This does not mean that the jury may not draw inferences based upon all the evidence, for that is, of course, the very heart of the jury's function, It means only that evidence presented must be such that by reasoning *174 from it, without resort to prejudice or guess, a jury can reach an appropriate conclusion. We believe that justice requires us to grant appellants a new trial, [FN4] We, therefore, reverse the judgment of the court below and remand for new trial, Jurisdiction is relinquished, Copr, @West2002 No Claim to Orig, D,S, Govt. Works ,n "~ . IL '""",,-< - --, ' . ~,' - ~~'. ~~ ~- 507 A,2d 822 (Cite as: 352 Pa.Super. 163, *174, 507 A.2d 822, **828) FN4. Having granted appellants a new trial, we need not address the other issues. However, based upon an independent review of the record, and with benefit of oral argument, we find appellants' remaining issues to be without merit. END OF DOCUMENT Copr. <9 West 2002 No Claim to Orig, U,S, Govt. Works .""--"""-.,.~,."," Page 6 , ,~- __N,__, "-, ,_ ,",,,' "oJ,,_-,> >', ,,' :;'_.' < ,"' _' '< ,'"",;,~.- _.- 0"__,,,"' -~' ",,' '';'-'''-'0''';'''''' .,,;,.,,, ~- '" ". " I BRIAN SUNDERLAND and BILLIE JO SUNDERLAND PLAINTIFFS : IN THlE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-2604 CIVIL ACTION - AT LAW RICHARD C. SWOPE, DEFENDANT J"-." PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Brian N. Zulli, Esquire, counsel for the defendant in the above action (or actions), respectfully represents that: 1, The above-captioned action (or actions) is (are) at issue: Automobile Accident 2, The claim of the plaintiff in the action is $3,000.00, 3, The counterclaim of the defendant in the action is $0, The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: Brian N. Zulli, Esquire and David Smith, Esquire, WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted, , Respectfully submitted, By: Br , Zulli, Esqui Attorney 1.0 No, 85 ~8 2411 North Front St. Harrisburg, PA 17110 (717) 232-9900 iifk"'-.~ ";';---1'.ilt""~' -~ ~ ,-- , ';j,--..;", ;,,-;:'~.,.oiI I ,,~ ~, I., <" V'!N\I^lASNt~2d , )J.Nnm Q\"crnjjm~n:J ~S :6 H~ 92 8]J 20 jO AHdll~'i~t 'I;!~,:'~}~n~;_'; -'~ - l' ++,....1 ct.. .1_ :1,"-",__ . ~~ , '~ j I. < -.""~ - ';- ',J~ -"-~, ','.-~ __'''-'''~';: , >--1.. ,,~.' -- ,,~ , ,~".] '", -. - ,- ~.-,'''~ ,;---" ,. ,~;' "~'-;~;'-"'~"';'''':~''>:''~;:~''-;;'{,,,' ,- "'1 " ORDER OF COURT AND NOW, ~ .<" , 2002, ;" oo",;derntio" of Ihe bego;"g petition, '-U~ ,1' , Esq" ,~ ~~, E'q" ,"d l::::; ~ j<- , E'q" ,rn 'ppo;",ed '''''rnlms;" Ihe above-cap ioned action (or actions) as prayed for. By the Court, P,J, Distribution: Brian N, Zulli, Esquire Nealon & Gover, P,C, 2411 North Front St. Harrisburg, PA 17110 /YlA,.t..l ~ 3.Ii'.o;J..- David Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 I "--I-. ,'- , - ", -~ " _o.'__,"'~', " ~,,'_c ,'" ." "C.'_ M_' ~I CERTIFICATE OF SERVICE AND NOW, this 21st day of February, 2002, I hereby certify that I have served the foregoing Petition for Appointment of Arbitrators on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: David G, Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 fY~~ Eileen S, Smith, S cretary .'--" ~ ~ ~1Iiilii"'iliiiilII~ ,,~Jll m,_.._ .,,"_,_~.lIlUlm,lI. ., ,~. --~ ',' ~ ~; ~- ''''''',,'''-'.~' , """,,..d!'; ",,"_,~'I,'," i ,,1' "",'-," .!~" ,', ~,~' " ,e;",- ',", _"', -~,' 'l '" IV p -fQ. f!L T' ~ 11-- () -- UJ () 9J 5> Lv ~ ~ ~ en ("'" J ,~ , I ",' "~'I ,_, "" C) ~~~ ri~ ~/:~ .,::.' "0__. ~I}>- ~:~,~' >:~::i: ~. ::J , -,~ ,",- --'1 '~"'l C'] f'o.,J r~..) -1:1 r..;~) '..j ~B -< .,) ~,~ ~,~" ." ", , ~;, " SHERIFF'S RETURN - OUT OF COUNTY " CASE NO: 2000-02604 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUNDERLAND BRIAN ET AL VS SWOPE RICHARD C R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SWOPE RICHARD C but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of ADAMS County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 8th , 2000 , this office was in receipt of the attached return from ADAMS Sheriff's Costs: Docketing Out of County Surcharge DEP. ADAMS CO 18.00 9.00 10.00 29,20 .00 66.20 05/08/2000 DAVID G. SMITH " S~~~~ /~~ . . // R( Thomas Kline Sheriff of Cumberland County , "", Sworn and subscribed to before me thi_~ IS'::: day of ~ ~1!7rO A.D. C!.",.... (2. '7k,oi,,:' Aq,,1"". . I Prothonotary . , ' II. '..L I ,'~, ,,'," '.' " '"'I . "In The Court of Common Pleas of Cumberland County, Pennsylvania Brian Sunderland, et. al. VS. Richard C. Swope No. 20-2604 Civil Now, 5/1/00 ,20 (I 0, I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Adams County to exe.cute this Writ, this deputation being made at the request and risk of the Plaintiff. , ' y~~~~., Sheriff of Cumberland County, FA Affidavit of Service Now, ,20 , at o'clock M. served the within upon at by handing to a copy ofthe original and made mown to the contents thereof. So answers, Sheriff of County, FA ';,. ,,'..f Sworn and subscribed before me this _ day of :.,,:L ~,COSTS SERVICE , 20 SCaG i'iV 11..; v MII1BAGE AFFIDAVIT $ ~J::: C~::: i\ ::~::,G~ $ __lll~......Ii;;II&~III~I~~~llii'llJllll!,1N-.i!W~.J!lli,!m.ifi1iit;i~"'~!M_~.""- '~ d .'-' .il:WJUr"l""'~~~ "-~~~-'~... '. "" ^"-, il I ., ,. ~ , AlHOO::J swvav .:I.:1U:l3HS b I :11 "if (- AV.tGllOl' a3^13~3~ .., ,',',~ ,~ , ~ ,',~, 'm . I, .,," ,",.~^. ." ~ L, _~ . ".~ h_'~'_" ,,"-" ~,',~ ,~ . ",,,;""""'~'~<'~x.,,,,,"~~' ~ ~, 'iiI"'~-'-"~_'''__''~"''~'''-d'';'',"",",""==''''''''''''''"",",,",,,","", ,~,,,,~,,,,,~,""",j,-k"""""""'~'-'-'~'""'''_*"''''''''''''''-',,;''_'h'''~'''~''~~,,-"",",...__,,; "",'-'""'""""-""",'..,""""""',"""'-"""""..."'_..,,,..'"';"."'''''''.,....._~~~'__ '"__"-'- DATE RE9EIV~...., DATE PROCESSED " .' - SHERIFF'S DEPARTMENT ADAMS COUNTY, PENNSYLVANIA COURTHOUSE, GETTYSBURG, PA 17325 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN INSTRUCTIONS: See "INSTRUCTIONS FOR SERVICE OF PROCESS BY THE SHERIFF" on the reverse of the last (No.5) copy of this form. Please type or print legibly, insuring readability of all copies. Do not detach any copies. ACSD ENV.# " PLAINTIFF/SI BRIAN SUNDERLAND and BILLIE JO SUNDERLAND 3,OEFENOANT/SI RICHARD C. SWOPE 2, COURT NUMBER 20-2604 Civil Term 4, TYPE OF WRIT OR COMPLAINT: t:oIT)Dlaint in Civil Action 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVICE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED OR SOLD. SERVE . Richard C. Swope 6. AODRE,S$ (Street or RFD, Apartment No., City, Bora, Twp., State and ZIP CODE) 35 Burnside Drive, East Berlin, ~A 17316 AT 7, INOICATE UNUSUAL SERVICE: D PERSONAL D PERSON IN CHARGE D DEPUTIZE D CERT, MAIL D REGISTERED MAIL 0 POSTED D OTHER Now, 19 , I, SHERIFF OF ADAMS COUNTY, PA., do herebydepulizethe Sheriff of County to execute this Writ and make return therof accordi~g to law, This deputation being made at the request and risk of the plaintiff, SHERIFF OF ADAMS COUNTY B, SPECIAL INSTRUCTIONS OR OTHER INFORMATION~THAT WILL ASSIST IN EXPEDITING SERVICE, NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.S. WAIVER OF WATCHMAN-Any deputy sheriff levying upon or attaching any property under within writ may leave same without a walOhman, in custody of whomever is found in possession, after notifying person of levy or auachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR requesting service on behalf of: Xl PLAINTIFF o DEFENDANT 10, TELEPHONE NUMBER 11. DATE David G. Smith, Esq. PACE BELOW FOR USE OF SHERIFF ONLY 12. I acknowledge'receipl'of the writ or complaint as indicated above. SIGNATURE of Authorized ACSD Deputy or Clerk and Title (814) 641-7626 DO NOT WRITE BELOW THIS LINE 14. Expiration / Hearing date 13.' Date Received 15. r hereby CERTifY and RETURN that I i have personally served, 0 have served person in charge, 0 have legal evidence of service as shown in "Remarks" (on reverse) o have posted ttle above described property with the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, compclnY, corporation, etc., at the address inserted below by handing/or Posting a TRUE and ATTESTED COPY therof. 16. 0 I hereby certify and return a NOT FOUND because I am unable to locate the individual, company. corporation, etc., named above. (See remarks below) 17. Name and title of individual served 1,8. A person of sUilable,age and discretion Read Order then residing in the defendant's usual 0 place of abode. 0 20. Date of Service 21. Time Richard C. Swo e 19. Address of where salVed (complete only if different than shown above) (Street or RFO, Apartment No., City, Boro, Twp., State and ZIP CODE) 5/3/2000 9:05PM 22, ATTEMPTS Dep.lnt. Date 25, Miles Dep.lnt. 27. Total Costs $29.20 Pd. 5/4/2000 Dep.lnt. 23. Advance Costs 24. $150.00 Fm.Sher ff 128389 28,dC)1Sll<~j!:lM( REFUNO $12b.80 Ck. #3509 so ANSWER, day of 19 By (.liRfi~Dep. Sheriff) (Please Pri :James IV. Muller Signature of Sherifl RAYMOND IV. NEWMAN Date 5/3/2000 Date 5/3/2000 AFFIRMED and subscribed to before me this NA ProthonotarylDeputylNotary Public SHERIFF OF ADAMS COUNTY MY COMMISSION EXPIRES I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY ANO TITLE, 39. Date Received i'flOYtiO...Ci/i "iN --,--'- >-...:.,11I; - ,. .. SHERIFF'S RETURN OF SERVICE (1) The within ,. ___,__ upon delendant by mailing to by "______m_. prepaid, a true and allested copy thereof at . the within named mail, return receipt requested.. postage on the The relurn receipt signed,by delendant on the _ made a part 01 this return, (2) Outside lhe Commonwealth, pursuant and-attestJl:ct copytl1erool aL__ Is hereto attached and to Pa, R,C,PA05(cl (1) (2)-by mailing a twe in the following manner: -, (a) To the defendant by ( ..) rilgfutered ( ) certified maie return receipt requesfed, postage prepaid, addre"SsEl"El" ooly mllhe said receipt being returned NOT signed by delendant, but wiih a notation by the Postal Authorities that Defendant refused to accept the same The ",turned receipt and envelope is a!!ached hereto and made part of this return, And thereafter: i ) fb) To the defendant by ordinary mail addressed to deTendaht at same address, with the return address of the Sheriff appearing thereon, on the ,__, _,,____ I further certify lMt "Iter fifteen (15) days Irom the mailing date. I have no' received snid envp.lnpe ~ar:" from the Postal Authorities. A certifIcate of mailing is hereto attached as a proof of mailing.. . -= - -,---- --'-- i.')) 8y publication In the Adams Cour1Ty Logal Journal. a weekly publfcatl6n'of gentHal circulation in the County 01 Aoams. Commonwealth 01 Pennsylvania, and the Gettysuurg Tlm~s, a daily r..,,\Vspaper publi5rred in the County of Adams, Commonwealth 01 Pennsylvania and ha'il1~ general cf(GlJlatJon in said County for ._.. ____ __~. _'_ _,___.. ,_" suc('rt~sive weeks of __ __._!":-. __~_ _, _ ,. ,,~__,,__....._,_.. _',"_ '"_~_,_""__,,,__'". The Affidavits from salO Adams Cour-ty Legal Journal arrd Gettysburg Times, are hereto attached and made part Df this return. -- .- (4\ By mailing to ""__'", ~_ by maiL return rece:pt requested. .,_______. ___,_..___,_, on the 8. irue and attested copy thereof at"_ postage prepaid, The Authorities marked IS hereto attached, (5) Other returned by the Postai _.,-----~-- ,- ,~~, ---""'-'.~ - -;"-.-;..-~7""="":___<;:::.____;r_--------~.. ______'1,____ D~lf:R~:.lX~Q -., 1'$ ""~ / OA TE PROCESSED S:H'ERrFF'SDEPARTMENT ADAMS COUNTY . PENNSYLVANIA COURTHOUSE, GETTYSBURG, PA 17325 INSTRUCTIONS: See "INSTRUCTIONS FOR SERVICE OF PROCESS BY SHERIFF SERVICE THE SHERIFF" on the reverse of fhe last (No, 5) copy of this form. Please PROCESS RECEIPT, and. AFFIElA VIT OF RETURN type or print legibly; insuring.readability of all copies, ,-, Do not detach any copies. AcSO ENV.# - " PLAINTIFFfSf . 2, coum NUMBER BRIAN SUNDERlAND al1tl BILLIE JO SUNDElUJJ,ND 20-2604 Civil Term 3, DEFENDANT/Sf 4, TYPE OF WRIT OR COMPLAINT: RI'CHARD C. SviOPE Comnlaint in Civil Action SERVE 5, NAME OF INDIVIDUAL. COMPANY, CORPORATION, ETC" TO,SERVICE OR DESCRIPTION OF PROPERTY lOBE LEVIED, ATTACHED OR SOLD, . Richard C. Swope 6. ADDRESS (Street or RfD, Apartment No., City, Boro, Twp., State'and ZIP CODE) AT 35 Burnside Drive, F.ast Eerlin,PA 17316 7. INDICATE UNUSUAL'SERVICE: 0 PERSONAL 0 PERSON IN CHARGE n DEPUTIZE-O CERT. MAIL 0 REGISTERED MAtL' 0 POSTED 0 'OTHER Now, ~ .19., I, SHERIFF OF ADAMS COUNTY, PA.,.do hereby deputize the Sheriff of County to execute this Writ. and makeretum therof according to law , This deputation being made at the request and risk of the plaintiff, . 8, SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSiST IN EXPEDITING SERVICE, SHERIFF OF ADAMS COUNTY NOTE ONLY APPLICABLE ON, WRIT O~ EXECUTION: N.S. WAIVER OF WATCHMAN-Any deputy sheriff levying upon or attaching any property under within writ may leave same without a'watchman, in ,custody of whomever is found in.possession, after' notifying person'of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any ,such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or dther'ORIGINATOR requesting service on behalf of:' :ro PLAINTIFF David G. Smitbj Esq. 0 DEFENDANT (814) 641-7626 SPACE BELOW FOR USE OF SHERIFF ONLY -,;. DO NOT WRITE BELOW THIS LINE 12. I acknowledge reoeipt of the'writ SIGNATURE of Alithorized ACSD Deputy or Clerk and Title -13. 'Date Received 14. Expiration I Heariog d or complaint as indicated above. -..J 10. TELEPHONE NUMBER 11. DATE ,0:,.. 1'1 \,) 15. I hereby CERTIFY and RETURN:that I M have personally served, 0 have served person in charge, 0 have legal evidence of service as shown in "Remarks" (on reverse) o have pQsted'4:he above described property with the writ or complaint described on the individual, company,'corporation, etc., at ,the address shown above or on the individual, cbmpany, corporation, eto., at the address inserted below by handing/or Posting a TRUE and ATTESTED COPY therof. R'_,",l {-,.,' iJ -) 19. Address of'where served ,(complete only if different than $hown above) (Street or RFD, Apartment No:, City, Bora, Twp., State and' ZIP CODE) 16. 0 I hereby 'certify and return a' NOT FOUND because I am unable to locate the individual, company, corPoration, etc., named above. (See remarks below) 17. Name and,title of, indiviaual served 18. A person of suitable age arid discretion then residi"g in the ctefendant's usual place of abode. 0 20. Date of Service 21.' Time Read Order o 5/3/2000 9' 25, Miles Dep.lnt. Dep.!nt. 22, ATTEMPTS Dep.lnt. Date $ ~'29.20 Pd~ Ck. 1t3S0~; AFFIRMED and subscribed to before me thls ]>';j I ^ SO ANSWER, 19 By (~lBlIt~.siSi~:~~~~'uQm:lise/,pn~i .'. rilPQ "7:;',.,\lt-f.'q py> ",' _'l~ Signa,t~r~--~' 'Sheriff R.. Yi',KT .'..'{,fJ SHt:RlfFl,OF ADAMS ,CQUNTY' Date day of ,- !':{./)'X\ \ Date (' j'., ""'-\{"l' ProthonotarylDepulyIN0t8ry Public MY COMMISSION EXPIRES I ACKNOWLEDGE RECEIPT OF THE$HERIFF'S RETURN SIGNATURE OF AUTHORlZED ISSUING AUTHORITY AND TtTLE, - 39. Date Received ',: i \\ '~ \- " .." " ",", "' ( r ~ ( ( ( c ....~' .'" ,~ t ~ .... .-'!' l' '- * - .'~ .. " ':-. ~ ~-'r . SHERIFF'S RETURN OF SERVICE (1) The within _ upon defendant by mailing ta __, by ___ prepaid, ___., a, true and attestedC9PY thereaf at ", the within named mail, return receipt requested, postage an the The return receipt signed by_~'__'_' defendant an the made a part .of this return, (2) Outside the Callimonw'eaItn.~ pursuari(la Pa. R,C.P.405 (c) -(1) (2), by mailing' a true .. and attested capy thereof at. is.hereta attached and -.. in the follawing manner: c'. ( ) (a) To the defendant by ('j registered certified mail,' return receipt requested,. - pastage prepaid, addressee arily an the ,., _ _....._____....._.... _'''''_' said receipt being returned NOT signed by defendant, but with a notation by the Postal Autharities that Defendant refused ta accept the same, The returned receipt and envelope is attached hereta and made part of this return, And thereafter: , , " '" . .. ( ) (b) To the defendant by ordinary 'mail addressed to defendant at same address, with the return addless of the Sheriff appearing thereon, .on the I further certlfy that after fifteen (15) days from the mailing date, i have nat received saldenvelape back from the Pastal AuthcriUes, A certificate .of mailing is hereto attached as a proof of mailing, -.. " . (3) By publication in the Adams County Legal Journal, ,a weekly publication' of general circulation in the County of Adams, Commcnwealth .of Pennsylvania, and the Gettysburg Times, a daily newspaper published in the Ccunty .of Adams, Cammonwealth .of Pennsylv,mia and having general circulatian in said Ccunty far successive weaks of .': The Alfidav\ts from said Adams Caunty Legal Jaurnal and Gettysburg Times, are hereto attached "nd made , part of this return (4) By mailing te by mail, return receipt requested, postage prepaid, on the a true and attested copy thereof at__.. ,returned by the Postal The Autharities marked is hereto attached, (5) Othel ,"",'- .-\- , ...j, .~ , .. --","'-'" ~~' , _"_'," ,,'~" '<" d", ..,." .'",,; ,- < ~i ~ - BRIAN SUNDERLAND AND BILLIE, JO SUNDERLAND PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PLAINTIFFS v. NO.: 00-2604 : CIVIL ACTION - AT LAW RICHARD C. SWOPE DEFENDANT : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Defendant, Richard C. Swope, with regard to the above-captioned matter, Respectfully submitted, NEALON & GOVER By: J>, ~\~ David J, Freed, Esquire Attorney 1.0, #76622 301 Market Street -- 9th Floor P,O, Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 , .~' ''^' '," ':JI,. " C-O.< ..lc "', '.' ''?'...',,, - "',0,'".,', ;,.~,_>",,,"~,~,:~ "'<'~~",~,:, ",,~,-,,-:; ~ :,' ,~ <) " ,. CERTIFICATE OF SERVICE AND NOW, this 11th day of May, 2000, I hereby certify that I have served the foregoing Praecipe Entering My Appearance on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David G, Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 Dated: 5/1!(/() ~~ '.~ David J, Freed, Esquire ;. "-'~ - ~: "~iillilliilil".'!lliIl1r" gn.'" "", ~~ ~ .iIIIIIiiii, I ... ~ C) () ,-, 0 'n -~ ::r. ~""" '4 -ufTr ~ ',. ~ rTlr-tl -< :'il:!] Z:U f~ t~i~ ,;-1"n t[ I'v ;)9 -< ~c:: ':~C) ,..--,.---, ~~;, -J ~~5~ -r<"' "'--,--... >c: r:: <<:.-cn ~ Z ?i) =< .-1 '< ----,-- " <, ,: " ~" .. ~ - ~ . ~~ ~, -J , '"{.! ~ r ,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYL VANIA CIVIL ACTION - LAW BRIAN SUNDERLAND AND BILLIE 10 SUNDERLAND, No, 00-2604 PLAINTIFFS VS, RICHARD C, SWOPE, DEFENDANT CERTIFICATE OF SERVICE I hereby certify that an original and one copy of Plaintiffs' First Set of Interrogatories Addressed to Defendant were served on February 23, 2001 on counsel for the Defendant, David 1. Freed, Esquire, by First Class Mail, postage prepaid, mailed at Huntingdon, Pennsylvania to David 1. Freed, Esquire, Nealon & Gover, 301 Market Street, 9th Floor, p, 0, Box 865, Harrisburg, PA 17108, b()Jfi d r;~-t( David G, Smith, Esquire Attorney for Plaintiffs 305 Mifflin Street Huntingdon, P A 16652 (814) 641-7626 Atty, ill 65317 iWilil!lm~lIIIiIilt1liliill!l:llj!ii1il$lIitl~~'I~!!f.;_"'l;""~~ ~~, "'.- # ~ 0\ L. ",1.. "'<~r ._ ~""""~,.",,,,,^>,~,,,^",,,,," ,'",,","'I,',~, ""'!"",~' ," ~,',,' '.... " 'I,' ',~" ," - ~iIIlIili-"'-iililll! -'-'-~ I, <^ ~~ o r,;; < vcri gJf~t ~~~ r:c' :f~~ ;c; r(-- =;; ,- -<! y,.-- 1._"-" ~~ ~~ ~ . ......'1 I f' -e::-.:, ." ;'"'rj N C' ::::> .;:- - '~'",' , ~- -'-. --",,',,", , ;. ",c"",'_ ~ _"~"f.,'~~ '."' ,~;,<,.:.;, .--,_ ",~"~ _,'_"i"" ,,"",..-:'Y".- ";~ "ij~ " BRIAN SUNDERLAND AND BILLIE, JO SUNDERLAND PLAINTIFFS : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 00-2604 CIVIL ACTION - AT LAW RICHARD C. SWOPE DEFENDANT : JURY TRIAL DEMANDED ANSWER TO COMPLAINT AND NOW, comes Defendant, Richard C, Swope, by and through his attorneys, NEALON & GOVER, P,C., and files the following Answer: 1, Admitted, upon information and belief, 2-5, Admitted, 6, Admitted in part and denied in part, It is admitted that Plaintiffs sustained damage to their vehicle, It is denied that the damage was "substantial" and proof of the same is demanded at trial. 7, Plaintiffs' Complaint contains no averments at this number. COUNT I - NEGLIGENCE 8, This paragraph is a paragraph of incorporation to which no response is required, 9-13, These paragraphs state conclusions of law to which no responsive pleading is required, To the extent that they are construed to allege facts, the same are denied pursuant to Pa, R,C,P,1029(e) 14, Admitted, ~, ,', " , ,. ,-'< "",,' -<.''''"' __~'" "" ',,, ",,;,',. ,,,", ,'"..0 , "/ ~,",,,,'0.-,,,'ie'""';"'~'~"'-' ", , ~''''''~ ~ii WHEREFORE, Defendant, Richard C, Swope, respectfully requests that the Complaint against him be dismissed, Respectfully submitted, NEALON & GOVER By: ..h....l ~ David J, Freed, Esquire Attorney 1.0, #76622 301 Market Street -- 9th Floor P,O, Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 "-" -",,'. ''"'', -'~~',"''''''- "'* ',,' 'c' ,,;;;;,.,,~ '" ,;"','" ~'''__'''''''~';''_:''''''''-'''',^,},:,-:i;',,,,;,,,';"', -,',..,',,'.' "I VERIFICAT~ON I, Richard C, Swope, verify that the statements made in the foregoing ANSWER TO COMPLAINT are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa, C,SA 4904 relating to unsworn falsification to authorities, ,~(!~~f~ Richard C, Swope Dated: firC/o "v ," ',J:__ :", ~~ ",,~ __''~<<, ,;,., "; ''';,<'", '- 'I". ',""" ~ -- '. '-",: ""," ~ '," ',..1';i,li;,--,:::'",,":;;',' --0 __ . , " CERTIFICATE OF SERVICE AND NOW, this 23rd day of May, 2000, I hereby certify that I have served the foregoing Answer to the Complaint on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David G, Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 ~ David J, Freed, Esquire Dated: 5/23/00 ,. """_~iIlI~' ~'"'I\~III >- r.. ,'~ "'~ IiIilIIiiii . (') C:J 0 c:: C,:, ~ 'T1 ';i1tf:: :z :01 :~::;<.. '......::: -j,~ ..,., ,ll,= ~~... t\,J ~;~ .!;...- ~ ,"-, .,:,( j~~ ,~ -"<:,,7 ~-:;-H ;;> _.;;,. :::;;C"S l, .- y? 0 en ?: .-i =< C- ~ C) , ~ , "< "" ,~-, " '~,",,,,",~~ , " ''',' """ '-"'0 -,'" '1, I',",,, '-. ~ - "'!lii ~ IN THE COURT OF COMMON PLE:AS OF CUMBERLAND COUNTY , PENNSYL VANIA CIVIL DIVISION BRIAN SUNDERLAND and BILLIE : JO SUNDERLAND, PLAINTIFFS No, 00 - ,;U.Olf Cio,t.l~ vs, RICHARD C. SWOPE, DEFENDANT NOTICE TO DEFEND AND CLAIM RIGHTS TO: RICHARD C. SWOPE You have been sued in court. IT 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 or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without 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 HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, .~ I" ~,i;~ CUMBERLAND CQUN'FY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 OR 1-800-990-9108 DATE: 5J Ilt.>JOCJ David G, Smith, Esquire Attorney for Plaintiff 305 Miftlin Street Huntingdon, PA 16652 (814) 641-7626 Atty, I.D. #65317 _L, " '~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYL VANIA CIVIL DIVISION BRIAN SUNDERLAND and BILLIE JO SUNDERLAND PLAINTIFFS, NO, tnJ- J.(POCf! ~ ~ VS, RICHARD C. SWOPE, DEFENDANT CIVIL COMPI,AINT AND NOW, comes the Plaintiffs, by and through their Attorney, David G. Smith, Esquire, and files this Civil Complaint alleging the following: 1. The Plaintiffs are Brian Sunderland and Billie Jo Sunderland, adult individuals residing in Huntingdon County, Pennsylvania with a mailing address of R.D. #1, Box 1991, Three Springs, PA 17264. 2. The Defendant is Richard C. Swope, an adult individual residing in Adams County, Pennsylvania with a mailing address of35 Burnside Drive, East Berlin, Pa 17316, 3. On or about September 25,1998, at approximately 2:12 p.m" the Plaintiffs were operating their 1988 GMC Conversion Van on State Route 83, 4. At the same time, date and place, the Defendant, Richard Swope, was operating his vehicle and was directly behind the Plaintiffs, 5. On or about September 25,1998, at the time and place previously mentioned, the vehicle that the Plaintiffs were riding in was struck in the rear by Defendant's vehicle. 6, As a result of the collision, the Plaintiffs sustained substantial damage to their vehicle. ,. ,,~. ~ ' - "' '. " '~":' : " COUNT I - NEGLIGENCE 8, The previous paragraphs are incorporated herein as if they were set forth fully at length herein, 9. The Defendant, Richard Swope, as an operator of a motor vehicle on the roads of the Commonwealth of Pennsylvania, had a duty and obligation to observe the vehicles directly in front ofhim and maintain and control his vehicle in such a way that he would avoid striking other vehicles in front of him. 10, The Defendant, Richard Swope, failed to perform his duty set forth above in that he failed to control his vehicle in such a manner that it would not strike the rear portion of the Plaintiffs' vehicle, 11. The Defendant, by failing to operate his vehicle in a safe and lawful manner, struck the Plaintiffs' vehicle from behind and caused substantial damage to the vehicle and to the Plaintiffs. 12. As a direct result of the Defendant's negligence, the Plaintiffs have suffered injuries to their property. Specifically, the Plaintiffs have sustained damages to their vehicle in that the frame is bent and there is damage to the body of the vehicle. 13. As a direct result of the negligence on the part of the Defendant, Richard Swope, the Plaintiffs' vehicle has been damaged to such a degree that it is a total loss, 14, Pursuant to Section 7361 of the Judicial Code, 42 PA C.S, Section 7361 of the Judicial Code, the amount of damages claimed in this matter does not exceed the statutory limit of $20,000.00 and therefore, this case would qualify for compulsory arbitration, -,. ~j .. WHEREFORE, it is respectfully requested that your Honorable Court award to the Plaintiffs damages in the amount of $9,000.00, as well as, costs, interest and legal fees. Respectfully Submitt~ ~ nCLv~ G- r David G, Smith, Esquire Attorney for Plaintiffs 305 Mifflin Street Huntingdon, PA 16652 (814) 641-7626 Atty, 1.0. #65317 - jrd VERTFICA nON The Respondent verifies that statements made in the Civil Complaint are true and correct. The Petitioner understands that false statements herein are made subject to the penalties of 18 Pa C.S. Section 4904, relating to unsworn falsification to authorities. L.~ Brian Suilderland 3f}[p foo Date " VERIFICATION <I The Respondent verifies that statements made in the Civil Complaint are true and correct. The Petitioner understands that false statements herein are made subject to the penalties of 18 Pa C.S. Section 490 relating to unsworn falsification to authorities. 3/IColoO Date 1,1'!ll'II~14~ilIi\llrilo"biil~Il9lll!liM\AA!ll~IlI!l~!i6l<illi""ill!l.'lo!lidf.___\#~iIiiI'.'.'" - ~iUilIII- ....... 'iB1 ~ - I ! , ~ ~ t 7t .~ '1<l.. ~ ~ ~ 8 Pi (j 0 () ,-:) -0 D '11 ~ W J'7'" I t::' ..-, ~ - rY, ~ ~ ~< "-) C/~) .---.,i _" t"" -,' !:~ .--"'-.,.' ,J- .'1.:; ~ , v , '~~'i .::.'-~ \_' ;-> C") .>(~ ~) '.'~nl ..~ -7 ;'0 :;~ , ~ ,', -< ~. ..~ ..., . ~ ", 0, _~ ,c,,~_ ,-'~'""~I'"",~"'rL "'", ,_J, ..~'",^,"<' " '1' ," v~ , L..?< ""' ~r,"',~ _ ',0_,'" " . " ~ ,. ,'" "" "J ., '~" . ,.~ . - '"'''.' ~-" , ~ '" .,__"-<',. ,',,"', '.'~_ '''''0 ,11 . ... Page 1 Citation Found Document 389 A.2d 130 (Cite as: 255 Pa.Super. 581, 389 A.2d 130) C Rank 1 of 1 Database PA-CS Superior Court of Pennsylvania. Joseph A. FLORAVIT, Dale S. Floravit, and Cynthia Lynn Floravit, a minor, by her natural guardian, Joseph A. Floravit, Appellants, v, David C. KRONENWETTER and Church and Murdock Electric, Inc. Argued March 23, 1978. Decided July 12, 1978. Occupants of preceding vehicle brought action to recover for injuries sustained when their car was struck in rear by following pickup truck. The Court of Common Pleas, Elk County, Civil Division, Action in Trespass at No. 405, April Term, 1973, Greiner, President Judge, found for defendants, and plaintiffs appealed. The Superior Court, No. 2261 October Term, 1977, Hoffman, J., held that: (1) findings of the trial judge sitting without a jury carry the same weight as a jury verdict, and (2) verdict for defendants was not against the weight of the evidence, including evidence that brake hose in truck ruptured, causing immediate brake failure and that in the few seconds after brake failure the truck driver acted reasonably in attempting to avoid the collision. Order affirmed. Hester, J., dissented. West Headnotes [1] Appeal and Error ~1008.1(2) 30k1008.1(2) Findings of the trial judge sitting without a jury carry the same weight as a jury verdict. [2] Automobiles ~244(12) 48Ak244 (12) Verdict for following truck driver in action by preceding motorist to recover for injuries sustained in rear-end collision was not against the weight of the evidence including evidence that brake hose in truck ruptured, causing immediate brake failure, that such failure could not have been detected prior to sudden loss of braking power and that in a few seconds after brake failure the truck driver, who had begun to slow down, acted reasonably in his unsuccessful attempt to avoid the collision. **130 *582 Thomas G. Wagner, St. Marys, for appellants. Norbert J. Pontzer, Ridgway, for appellees. Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT and Copr. @ West 2002 No Claim to Orig. U.S. Govt. Works . " 'C" ,_ " ,',~ 'I'I~,,' _-", . ~ . --k ^_ . ':"'~~,O' - ',o,",^ . 389 A"2d 130 (Cite as: 255 Pa.Super. 581, *582, 389 A.2d 130, **130) Page 2 HESTER, JJ. HOFFMAN, Judge: Appellants contend that the lower court's verdict was against the weight of the evidence. We disagree and affirm. On September 6, 1973, appellants filed a complaint in trespass in the Elk County Court of Common Pleas seeking damages resulting from an accident in which appellees' pick-up truck struck the rear of appellants' automobile. At a non- jury trial on July 15, 1975, appellant, Joseph Floravit, testified that on September 7, 1971, at approximately 4:15 p. m., he was driving southbound on Pennsylvania Route 255, a two lane highway, in Benzinger Township, Elk County. His daughter, appellant, Cynthia Floravit, was a passenger in the car. At the crest of a hill, he brought his car to a stop behind a car which was awaiting a break in the oncoming traffic in order to make a left turn. While stopped, his car was suddenly struck from behind by a pick-up truck driven by appellee, David Kronenwetter. The impact of the collision propelled appellant's car into the rear of the **131 lead automobile. Appellant testified that his car was considerably damaged and that, as a result of the accident, he experienced neck and back pain which required medical *583 attention and periodic hospitalization. Moreover, his physical condition rendered him unable to return to work until January 30, 1973, approximately fifteen months after the accident. [FNl] FNl. Appellant, Cynthia Floravit, also testified that she experienced neck and back discomfort as the result of the collision and that the pain had restricted her physical activity. Appellee, David Kronenwetter, testified that at the time of the accident, he was employed by appellee, Church and Murdock Electric Company, Inc., and, in the course of his employment, was operating his employer's pick-up truck southbound on Route 255. Appellee observed appellant's stopped vehicle at a distance of about 500 feet, applied the footbrake, and slowed his speed from approximately 25 miles per hour to less than 5 miles per hour. At a distance of approximately one car length from appellant's vehicle, appellee lost all braking power. Before he had an opportunity to engage the emergency brake, his truck collided with appellant's vehicle. On cross-examination, the following exchange occurred concerning appellee's response to the brake failure: "Q. Is there any reason Dave, why you could not have turned out to the right to avoid striking Mr. Floravit's car? "A. Yes, Sir. "Q. Why? "A. There is an "Q. How much of "A. Enough that "Q. Well, could embankment there. an embankment? I couldn't walk you have driven up it. your car up on the side of it, your truck up on Copr. @ West 2002 No Claim to Orig. u.S. Govt. Works -,~ ~. , <"', " ,,-,," , "_0,.;1 ~ 389 A.2d 130 (Cite as: 255 Pa.Super. 581, *583, 389 A.2d 130, **131) Page 3 the side of it? "A, No. "Q. (O)n the left side you couldn't have gone over there because there was traffic coming down there, isn't that right? "A. Right. "Q. Could you have turned off behind Floravit if the embankment had not been there? *584 "A. I don't think so. "Q. In other words, you just didn't have time to do anything, right? "A. Right. "Q. Yet in that particular one car length of distance, tell me how long is a car? "A. About seventeen feet. "Q. In that seventeen feet you had time to go for your emergency brake and had a chance to stop your truck with your emergency brake, right? "A. Wel", (sic) "Q. Isn't that what you testified to? "A. Yeah, yeah, I know I went for the emergency brake but I can't tell you in those couple seconds whether I had the emergency brake applied or not, all I know is that after I hit him, I didn't drift backwards because I had the emergency brake on already. "Q. Well, do you suppose that you were applying it as you hit? "A. I would say, yes. "Q. And, after you struck him, you didn't drift back anymore? "A. Right." Appellee called John Pistner, an eyewitness to the incident and owner of a garage located on Route 255 at the scene of the accident, pistner testified: "A. I observed (appellee) coming up the road, I knew from just watching him he was coming up the road and slowing down and it looked like he was coming to a stop and he just didn't stop at all. "Q. Did it appear that he was going to come to a stop? "A. Right. "Q. How fast would you say he was going at the last before he hit? "A. I don't think he was going over 10 miles per hour." **132 *585 pistner also testified that after the accident, he examined appellee's truck and found that the left front wheel brake hose was ruptured. He stated that when such ruptures occur, a vehicle suddenly loses all braking power without any advance warning. [FN2] FN2. Appellee called Leander Hoffman, an automobile mechanic who inspected appellee's truck on July 23, 1971, and found no evidence of faulty brakes. He also corroborated Pistner's opinion that a brake hose rupture would cause sudden and total brake failure. Finally, appellee called Donald Schatz, a Benzinger Township police officer. Officer Schatz testified that he came upon the scene of the accident within two Copr. @ West 2002 No Claim to Orig. U.S. Govt. Works ":' _,_ "-;1,11 b.-;~'~ ,_ ',_ _... _'_'", ,'- ,~ N ",' - -,=,,--,--"." ,,", , 389 A.2d 130 (Cite as: 255 Pa.Super. 581, *585, 389 A.2d 130, **132) Page 4 to three minutes of the collision. He stated that at the scene, he engaged the brake pedal of appellee's truck and found that because there was no pressure on the pedal, it went to the floor. This test indicated brake failure. At the close of testimony, the lower court deferred its decision. In an August 8, 1975 order, the lower court held that it, "regrettably and with great sympathy for plaintiffs and the serious injuries sustained and damages suffered, is compelled to find that plaintiffs did not prove by a preponderance or a fair weight of the evidence that defendants or either of them, were negligent which negligence was the proximate cause of the injuries suffered by plaintiffs." This appeal followed. [1] Appellants contend that the lower court's the evidence. [FN3] In Burrell v. Philadelphia 288-289, 265 A.2d 516, 517 (1970), the Supreme verdict is against the weight Electric Co., 438 Pa. 286, Court stated: of FN3. Appellants other contentions are meritless. First, they argue that the trial court erred in not applying certain incontrovertible physical facts and principles regarding speed, distance, and reaction time in order to determine that appellee was negligent. Assuming that appellants have preserved this contention for our review, we conclude that the instant case is not appropriate for the application of the incontrovertible physical facts doctrine. See Stacy v. Thrower Trucking Co., Inc., --- Pa.Super. 384 A.2d 1274 (1978). Appellants' other contention is that the lower court misconstrued the deposition testimony of a physician who examined appellant, Joseph Floravit. The court found that the deposition challenged Floravit's credibility with respect to the extent and permanence of his injury. Once again, assuming that this claim is properly before us, we conclude that the lower court did not abuse its discretion in so finding. "We have frequently set forth the standards governing the grant of a new trial on the ground that the verdict was against the weight of the evidence. 'The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that *586 discretion is not absolute; this Court will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion.' Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123 (1969), and cases there cited. 'A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: (citation omitted). Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.' Carroll v. Pittsburgh, 368 Pa. 436, 445-6, 84 A.2d 505 (1951). A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Jones v. Williams, 358 Pa. Copr. @ West 2002 No Claim to Orig. u.s. Govt. Works __-I'",'hl, ~I, ,,' " ._ ~,,' " ',,,, , -'--'^'-' , ~~~ - !lOr ~ Page 5 389 A.2d 130 (Cite as: 255 Pa.Super. 581, *586, 389 A.2d 130, **132) 559, 564, 58 A.2d 57; Carroll v. Pittsburgh, Supra, 368 Po.. at 447, 84 A.2d 505; Brown v. McLean Trucking Co., 434 Po.. 427, 429-30, 256 A.2d 606 (1969)." See also Musser v. Shenk, 192 Pa.Super. 471, 161 A.2d 628 (1960). It is also important to note that the findings of a trial judge sitting without a jury carry the same weight as a jury verdict. Idell v. Falcone, 427 Pa. 472, 235 A.2d 394 (1967); Girard Trust Corn Exchange Bank v. Brinks, Inc., 422 Po., 48, 220 A.2d 827 (1966) . **133 In Cirquitella v. Callaghan, 331 Po.. 465, 200 A. 588 (1938), our Supreme Court stated that "the mere happening of a rear-end collision (does not) constitute negligence as a matter of law on the part of the operator of the rear automobile. The occurrence of such a collision does not raise a presumption *587 that the driver of either vehicle was negligent. It is a question of fact for the jury to be determined from all the evidence of the case. The plaintiff must prove that the collision resulted from the negligence of the defendant." See also, Pascale v. Simmons, 406 Po.. 476, 178 A.2d 549 (1962); Meek v. Allen, 162 Pa.Super. 495, 58 A.2d 370 (1948). [2] In the instant case, the lower court found that the brake hose in appellee's truck ruptured, causing immediate brake failure. Further, the uncontroverted testimony of expert mechanics showed that the impending failure could not have been detected prior to the sudden loss of braking power. As a result, the lower court concluded that appellee was not negligent in failing to anticipate the brake failure. Moreover, the court found that in the few seconds after the brake failure, appellee acted reasonably in attempting to avoid striking appellants' vehicle in the rear. Our review of the trial record convinces us that the lower court did not abuse its discretion in making its findings and conclusions. Consequently, we will not disturb the court's verdict. Order affirmed. HESTER, J., dissents. SPAETH, J., did not participate in the consideration or decision of this case. END OF DOCUMENT Copr. @ West 2002 No Claim to Orig. u.s. Govt. Works ,~ ',-- '~j: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRIAN SUNDERLAND AND BILLIE JO SUNDERLAND, PLAINTIFFS NO. 00-2604 VS. RICHARD C. SWOPE, DEFENDANT PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above referenced matter settled and satisfied and discontinue the same with prejudice. Respectfully Submitted, o /~ ,\ ),j, G~ David G. Smith, squire Attorney for Petitioner 305 Mifflin Street Huntingdon, PA 16652 (814) 641-7626 Atty. LD. #65317 'H"iililll>:iH"-,;fi~W1!il~~;.liM~_Mw-'.J;ll'lo!llj,nl;;""""&h!I~~~,,-,,,Ili.o;~IiIll*,,,'..~Mb(" ,,~-",.g.- ,,,,,," ,~,~ , ~" "'~" " ","", -,- ~ ",',,~," ,- ",". , ~<< ~1lilII~li$I~.,"'''''''' -'~",< L . '...........-"-'.;.-~1lIIiM ......~ ('J Cl 0 c: W -n "7 '- "'", -00::' :po h~ ~rri .~- - _::C Z~ 0 ~~{ '~C) r;:;C> :2 --r:IJ )>C -'--"" (;2(~ ;?;c5 r:;? f:; rn ""C ' . -, Z U'\ J> =< ~ 6~ d " 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRIAN SUNDERLAND and BILLIE: JO SUNDERLAND, PLAINTIFFS No. VS. RICHARD C. SWOPE, DEFENDANT NOTICE TO DEFEND AND CLAIM RIGHTS TO: RICHARD C. SWOPE 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 or objections to the claims set forth against you. You are wamed that if you fail to do so, the case may proceed without you by the court without fimher 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. DATE: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 OR 1-800-990-9108 David G. Smith, Esquire Attorney for Plaintiff 305 Mifflin Street Huntingdon, PA 16652 (814) 641-7626 Atty. I.D. #65317 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRIAN SUNDERLAND and BILLIE JO SUNDERLAND PLAINTIFFS, NO. a'0- o~6'°q~5~ ~ VS. RICHARD C. SWOPE, DEFENDANT CIVIL COMPLAINT AND NOW, comes the Plaintiffs, by and through their Attorney, David G. Smith, Esquire, and files this Civil Complaint alleging the following: 1. The Plaintiffs are Brian Sunderland and Billie Jo Sunderland, adult individuals residing in Huntingdon County, Pennsylvania with a mailing address of R.D. #1, Box 1991, Three Springs, PA 17264. 2. The Defendant is Richard C. Swope, an adult individual residing in Adams County, Pennsylvania with a mailing address of 35 Burnside Drive, East Berlin, Pa 17316. 3. On or about September 25, 1998, at approximately 2:12 p.m., the Plaintiffs were operating their 1988 GMC Conversion Van on State Route 83. 4. At the same time, date and place, the Defendant, Richard Swope, was operating his vehicle and was directly behind the Plaintiffs. 5. On or about September 25, 1998, at the time and place previously mentioned, the vehicle that the Plaintiffs were riding in was smack in the rear by Defendant's vehicle. 6. As a result of the collision, the Plaintiffs sustained substantial damage to their vehicle. COUNT I- NEGLIGENCE 8. The previous paragraphs are incorporated herein as if they were set forth fully at length herein. 9. The Defendant, Richard Swope, as an operator of a motor vehicle on the roads of the Commonwealth of Pennsylvania, had a duty and obligation to observe the vehicles directly in front of him and maintain and control his vehicle in such a way that he would avoid striking other vehicles in front of him. 10. The Defendant, Richard Swope, failed to perform his duty set forth above in that he failed to control his vehicle in such a manner that it would not strike the rear portion of the Plaintiffs' vehicle. 11. The Defendant, by failing to operate his vehicle in a safe and lawful manner, struck the Plaintiffs' vehicle fi'om behind and caused substantial damage to the vehicle and to the Plaintiffs. 12. As a direct result of the Defendant's negligence, the Plaintiffs have suffered injuries to their property. Specifically, the Plaintiffs have sustained damages to their vehicle in that the frame is bent and there is damage to the body of the vehicle. 13. As a direct result of the negligence on the part of the Defendant, Richard Swope, the Plaintiffs' vehicle has been damaged to such a degree that it is a total loss. 14. Pursuant to Section 7361 of the Judicial Code, 42 PA C.S. Section 7361 of the Judicial Code, the mount of damages claimed in this matter does not exceed the statutory limit of $20,000.00 and therefore, this case would qualify for compulsory arbitration. WHEREFORE, it is respectfully requested that your Honorable Court award to the Plaintiffs damages in the amount of $9,000.00, as well as, costs, interest and legal fees. Respectfully Submitted~ David G. Smith, Esquire Attorney for Plaintiffs 305 Mifflin Street Huntingdon, PA 16652 (814) 641-7626 Atty. I.D. #65317 The Respondent verifies that statements made in the Civil Complaint are true and correct. The Petitioner understands that false statements herein are made subject to the penalties of 18 Pa C.S. Section 4904, relating to unsworn falsification to authorities. Brian Sunderland Date The Respondent verifies that statements made in the Civil Complaint are tree and correct. The Petitioner understands that false statements herein are made subject to the penalties of 18 Pa C.S. Section 4_~90~b relating to unswom falsification to authorities. Date SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-02604 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUNDERLAND BRIAN ET AL VS SWOPE RICHARD C R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SWOPE RICHARD C but was unable to locate Him deputized the sheriff of ADAMS in his bailiwick. He therefore County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 8th , 2000 , this office was in receipt of the attached return from ADAMS Sheriff's Costs: Docketing Out of County Surcharge DEP. ADAMS CO 18.00 9.00 10.00 29.20 .00 66.20 o5/o8/2ooo ,,. DAVID G. SMITH Sworn and subscribed to before me this /~'~ day of ~ ~3 A.D. ! / Prothon0taz~y' · Rf Thomas Kline Sheriff of Cumberland County In The Court of Common Pleas of Cumberland County, Pennsylvania Brian Sunderland, et al. VS. Richard C. Swope No. 20-2604 Civil Now, 5 / 1 / 00 ., 20 O 0, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriffof Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now, within Affidavit of Service , 20 ., at o'clock M. served the upon by handing to' and made known to copy of the original So answers, the contents thereof. Sworn and subscribed before me this ~ day of Sheriff of COSTS SERVICE AFFIDAVIT County, PA AIN~IO3 .-I-Ila3H$ b l :11 ~' £- 03AI303~1 DATE RE~EIVEO SHERIFF'S DEPARTMENT ADAMS COUNTY, PENNSYLVANIA COURTHOUSE, GETTYSBURG, PA 17325 DATE PROCESSED INSTRUCTIONS: See "INSTRUCTIONS FOR SERVICE OF PROCESS BY SHERIFF SERVICE THE SHERIFF" on the reverse of the last (No. 5) copy of this form. Please PROCESS RECEIPT, and AFFIDAVIT OF RETURN type or print legibly, insuring readability of all copies. Do not detach any copies. ACSD ENV.# 1. PLAiNTIFF/S/ 2. COURT NUMBER BRIAN SUNDERLAND and BT~.~.TF. JO SUNDERLAND 20-2604 Civil Term 4. TYPE OF WRIT OR COMPLAINT: 3. DEFENDANT/S/ RICHARD C. SWOPE Complaint in Civil Action 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVICE OR DESCRIPTION OF PRor'~MI Y' TO BE LEVIED, A'I-rACHED OR SOLD. SERVE Richard C. Swope 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP CODE) A'F 35 Burnside Drive, East Berlin, PA 17316 7. INDICATE UNUSUAL SERVICE: [] PERSONAL [] PERSON IN CHARGE [] DEPUTIZE [] CERT. MAIL [] REGISTERED MAIL ~ POSTED [] OTHER Now, 19 ., I, SHERIFF OF ADAMS COUNTY, PA., do hereby deputize the Sheriff of County to execute this Writ and make return therof according to law. This deputation being made at the request and risk of the plaintiff. SHERIFF OF ADAMS COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN--Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR requesting service on behalf of: 10. TELEPHONE NUMBER 11. DATE ~ PLAINTIFF David G. Smith, Esq. []DEFENDANT (814) 641-7626 SPACE BELOW FOR USE OF SHERIFF ONLY -- DO NOT WRITE BELOW THIS LINE 12' I ackn°wledge receipt °f tho writ I SIGNATURE °f Auth°rized ACSD Deputy °r Cisrk and Titleor complaint as indicated above. [ 13. Date Received [ 14. Expiration / Hearing dst,; 15. I hereby CERTIFY snd RETURN that I~ have personally served, [] have served person in charge, [] have legal evidence of service as shown in "Remarks" (on reverse) [] have posted the above described property with the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, corporation, etc., at the address inserted below by handing/or Posting a TRUE and ATTESTED COPY therof. 16. [] I hereby certify and return e NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 17. Name end title of individual served I 18. A person of suitable age and discretion Read Order then residing in the defendant's usual I piece of abode. [] [] Richard C. Swope 19. Address of where served (complete only if different than shown above) (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP CODE) 22. ATTEMPTS Date MIle~ Dop.lnt. Date Miles Dap. Int. Date Miles Dap. Int. Date Miles De 23. Advance Costs / 24. I 25. I 26. I 27. Total Costs $150.00 Fm. Sher~ff #28389 I I 1 29.2o ?d. 5/4/2000 20. Date of Service 21. Time 5/3/2000 9 Int. Date Miles I Dop.lnt. 28. (~;~1[]1~1~ REFUND $120.80 Ck. #3509 AFFIRMED and subscribed to before me this N/A day of 19 MY COMMISSION EXPIRES SO ANSWER. Uames W. ~ller 5/3/20~ Sig~t~e of Sh~ Date ~ w. ~ I 5/3/2~0 Prothonof~ry/t~puty/Notar/Public SHERIFF OF ADAMS COUNTY I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE. 39. Date Received PROTHONOTARY SHERIFF'S RETURN OF ,,SERVICE (i) The W~hin upon , the within named defendant by mailing to by mail, return receipt requested, postage prel~aicl,~ ] ] ;: on the a true and attested copy thereof at The return receipt signed by defendant on the . : : ~ h~reto affaCf~;~J:'a'nd made a part of this returm (2) Outside the Cemmonweaith, pursuant to Pa R C P,405 .(c) (t) (2), by mailing, a true anner''' { ) (a) To the defendant by ( ) registered ( ~ certified m~fi; r.tur~ receipt requested, postage prepaid addressee only on the ~ ..................... ,~ ~.ce~pt be~'~? ~tumed NOT s~gn(~d by defendant, 5ut wth a ~k)~atton by the Postal A,Jthodties ~a [)efeadant~efuss:. toacc(~t~, ~hu,~am', The~ehsned ecepts~;de~webpe~sattache~heeto and made part of ~h~s return, And therea~er: (b) To the defend3'~t by Ord{nary ma~ addressed to defendaht ~t same address; With the return add,ess of the Shedff appearing ~hereon on the ~ he: ce~ffy ~ha~ after f f~ee (~5) daYs from sa~d.envebpe back ¢'om the Posta Authorities. A ccrt~fica(e c¢ (naiting ~a hereto attached as a ~'3) y p~bl[catio~ n :~ar~ ;.~'~t~ ~egal Journal a weedy pub~catiod'of gem~ the County o¢ Ada:tx% (]o~lmo;weaRi~ of Permsy~vama, a~x; he Gettysburg T~mes, a da~¢y 0 cuaation ~n sand County for s~.ccessive weeks et :: The Affidavits from said Adams COunty Legat Journa~ and GettySburg Times, afc heretb ;attaa~ed and made pa~ of this retu t~ ~4¢ By mailing by mail ee~um race pt requested, postage Prepaid, oR the a true and attested copy thereof at The ; ; l ......... :: ret'u~ed by the Pastal Authorities marked is ~reto attached. {5) O~her BRIAN SUNDERLAND AND BILLIE, JO SUNDERLAND PENNSYLVANIA PLAINTIFFS RICHARD C. SWOPE DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO.: 00-2604 CIVIL ACTION - AT LAW JURY TRIAL DEMANDED PRAEClPE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Defendant, Richard C. Swope, with regard to the above-captioned matter. Respectfully submitted, NEALON & GOVER By: David J. Freed, Esquire Attorney I.D. #76622 301 Market Street -- 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 2;32-9900 CERTIFICATE OF SERVICE AND NOW, this 11th day of May, 2000, I hereby certify that I have served the foregoing Praecipe Entering My Appearance on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David G. Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 Dated: David J. Freed, Esquire BRIAN SUNDERLAND AND BILLIE, JO SUNDERLAND PLAINTIFFS RICHARD C. SWOPE DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 00-2604 CIVIL ACTION - AT LAW JURY TRIAL DEMANDED ANSWER TO COMPLAINT AND NOW, comes Defendant, Richard C. Swope, attorneys, NEALON & GOVER, P.C., and files the following Answer: 2-5. 6. sustained damage to their vehicle. of the same is demanded at trial. 7. Admitted, upon information and belief. Admitted. Admitted in part and denied in part. by and through his It is admitted that Plaintiffs It is denied that the damage was "substantial" and proof required. 9-13. These paragraphs state conclusions of law to which no responsive pleading is required. To the extent that they are construed to allege facts, the same are denied pursuant to Pa. R.C.P. 1029(e) 14. Admitted. Plaintiffs' Complaint contains no averments at this number. COUNT I - NEGLIGENCE This paragraph is a paragraph of incorporation to which no response is VERIFICATION I, Richard C. Swope, verify that the statements made in the foregoing ANSWER TO COMPLAINT are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unswom falsification to authorities. Dated: h(icnard C. Swope CERTIFICATE OF SERVICF AND NOW, this 23rd day of May, 2000, I hereby certify that I have served the foregoing Answer to the Complaint on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David G. Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 David J. Freed, Esquire Dated: 5/23/00 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BRIAN SUNDERLAND AND BILLIE JO SUNDERLAND, PLAINTIFFS VS. No. 00-2604 RICHARD C. SWOPE, DEFENDANT CERTIFICATE OF SERVICE I hereby certify that an original and one copy of Plaintiffs' First Set of Interrogatories Addressed to Defendant were served on February 23, 2001 on counsel for the Defendant, David J. Freed, Esquire, by First Class Mail, postage prepaid, mailed at Huntingdon, Pennsylvania to David J. Freed, Esquire, Nealon & Gover, 301 Market Street, 9th Floor, P. O. Box 865, Harrisburg, PA 17108. David G. Smith, Esquire Attorney for Plaintiffs 305 Mifflin Street Huntingdon, PA 16652 (814) 641-7626 Atty. ID 65317 BRIAN SUNDERLAND and BILLIE JO SUNDERLAND PLAINTIFFS RICHARD C. SWOPE, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : .. : NO. 00-2604 : CIVIL ACTION - AT LAW .. : PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Brian N. Zulli, Esquire, counsel for the defendant in the above action (or actions), respectfully represents that: The above-captioned action (or actions) is (are) at issue: Automobile Accident The claim of the plaintiff in the action is $3,000.00. The counterclaim of the defendant in the action is $0. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Brian N. Zulli, Esquire and David Smith, Esquire. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Nealon & Gover, P.C. ¥: __ Attorney I.D No. 2411 ~orth Front St. Harrisburg, PA 17110 (717) 232-9900 ORDER OF COURT AND NOW, ~~~.~',., ,,2-~ ,2002, in consideration of the foregoing petition, ~ ~.~-/.., /~,1, , Esq., Esq., and ~ ,,~¢~) ~z... , Esq., are appointed arbitrators in the above-cap~/i'ioned action (or actions) as prayed for. By the Court, Distribution: Brian N. Zulli, Esquire Nealon & Gover, P.C. 2411 North Front St. Harrisburg, PA 17110 David Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 CERTIFICATE OF SERVICE AND NOW, this 21st day of February, 2002, I hereby certify that I have served the foregoing Petition for Appointment of Arbitrators on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: David G. Smith, Esquire 305 Mifflin Street Huntingdon, PA 16652 Eileen S. Smith, S-'~retary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRIAN SUNDERLAND AND BILLIE JO SUNDERLAND, PLAINTIFFS VS. NO. OO-26O4 RICHARD C. SWOPE, DEFENDANT PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above referenced matter settled ,and satisfied and discontinue the same with prejudice. Respectfully Submitted, David G. Smith, E~squire Attorney for Petitioner 305 Mifflin Street Huntingdon, PA 16652 (814)641-7626 Atty. I.D. #65317 BRIAN SUNDERLAND and BILLIE JO SUNDERLAND RICHARD C. SWOPE Plaintiffs Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2604 · CIVIL ACTION - AT LAW OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the Umted States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. ,.~,. We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following Award: We find in favor of the Plaintiffs and against the Defendant in the amount of Two Thousand Seven Hundred Eleven Dollars and Ninety-Eight Cents ($2,711.98), together with the applicable delayed damages. Date of Hearing: 4 June 2002 '-~rman Brian J. Pdhala. ,~quire --,.J It AND NOW, the ]t~ day of 2002, at o'clock .m., the above Award was entered upon the Docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensatidn to be paid upon appeal: