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RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION - LAW
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CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
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NOTICE TO PLEAD
To: Plaintiff, Richard A, Caban and his Attorney,
James M. DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Philadelphia 19107
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YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer and
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New Matter within twenty (20) days from service hereof or a judgment may be entered against
you.
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Peters & Wasilefski
By:
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Attorney for Defendant,
Charles Etherton, Jr. and
Cressler Trucking, Inc.,
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RICHARD A, CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
DEFENDANTS' ANSWER WITH NEW MATTER TO
SECOND AMENDED CIVIL ACTION COMPLAINT
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AND NOW, come Defendants, Charles Etherton, Jr. and Cressler Trucking, mc,
("Defendants"), by and through their attorneys, Peters & Wasilefski, and answer Plaintiff, Richard
A. Caban's ("Plaintiff") Second Amended Civil Action Complaint, and aver New Matter thereto,
as follows:
L Denied. Defendants specifically deny the allegations set forth in paragraph L
After reasonable investigation, Defendants are without knowledge or information sufficient to form
a belief as to the truth of said allegations, and the same are therefore deemed denied and strict
proof thereof is demanded,
2, Admitted.
3. Admitted,
4, Admitted in part and denied in part. It is admitted that on or about May 21, 1999,
Defendant, Cressler, owned and/or possessed and by its agent, servant, workman and/or employee,
Charles Etherton, Jr., controlled and operated a 1995 Kenworth tractor-trailer motor vehicle, It is
specifically denied that that motor vehicle was involved in an "accident" to the extent that that term
implies that there was some physical contact between said motor vehicle and the bicycle that was
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being operated by the Plaintiff. To the contrary, it is believed and therefore averred that there was
no actual contact between the tractor-trailer and the bicycle,
5. Admitted,
6, Admitted,
7, Admitted.
8, Denied, Defendants specifically deny the allegations set forth in paragraph 8.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
Rc'P. 1029(e).
9, Denied, Defendants specifically deny the allegations set forth in paragraph 9 and
sub-paragraphs 9(a - 0), Defendants are advised by counsel and therefore aver that said allegations
state of conclusions of law to which no response is required under the Pennsylvania Rules of Civil
Procedure. To the extent that a response may be required, said allegations are specifically denied
in accordance with Pa, R,C,P, 1029(e), By way of further response. by Order dated December
18, 2000, paragraph 9(d) was stricken from Plaintiff's Second Amended Civil Action Complaint
and, therefore, no response is required to that paragraph.
10, Denied, Defendants specifically deny the allegations set forth in paragraph 10.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
RC.P. 1029(e).
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11. Denied. Defendants specifically deny the allegations set forth in paragraph 11.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
R.C,P, 1029(e).
12. Denied, Defendants specifically deny the allegations set forth in paragraph 12,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
R.C.P, 1029(e).
COUNT I
RICHARD A. CABAN v. CRESSLER TRUCKING. INC..
AND CHARLES ETHERTON. JR.
13, Denied, Defendants specifically deny the allegations set forth in paragraph 13,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
R.C,P. 1029(e),
14, Denied, Defendants specifically deny the allegations set forth in paragraph 14,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
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that a response may be required, said allegations are specifically denied in accordance with Pa,
R,C.P. 1029(e),
15, Denied. Defendants specifically deny the allegations set forth in paragraph 15.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
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17, Denied. Defendants specifically deny the allegations set forth in paragraph 17,
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16. Denied, Defendants specifically deny the allegations set forth in paragraph 16,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
R,C,P, 1029(e),
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
R.C.P. 1029(e),
18, Denied, Defendants specifically deny the allegations set forth in paragraph 18.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
R.C.P, 1029(e),
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WHEREFORE, Defendants demand that judgment be entered in their favor and against
Plaintiff.
COUNT II
RICHARD A. CABAN v. CRESSLER TRUCKING. INC.
(First Party Benefits)
19, Defendants incorporate their answers/responses to paragraphs 1-18 above by
reference thereto as though set forth herein at length,
20, Admitted.
21. Denied, Defendants specifically deny the allegations set forth in paragraph 21.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
RC.P. 1029(e).
22, Denied. Defendants specifically deny the allegations set forth in paragraph 22.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
R.C.P. 1029(e).
23, Denied, Defendants specifically deny the allegations set forth in paragraph 23,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent
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that a response may be required, said allegations are specifically denied in accordance with Pa.
RC.P, 1029(e).
24. Denied, Defendants specifically deny the allegations set forth in paragraph 24,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa.
RC.P, I029(e).
25, Denied, Defendants specifically deny the allegations set forth in paragraph 25.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
Rc'P, 1029(e).
26, Denied. Defendants specifically deny the allegations set forth in paragraph 26.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure, To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
R.c'P. 1029(e),
27. Denied, Defendants specifically deny the allegations set forth in paragraph 27.
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
R.C.P. 1029(e),
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28. Denied, Defendants specifically deny the allegations set forth in paragraph 28,
Defendants are advised by counsel and therefore aver that said allegations state conclusions of law
to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent
that a response may be required, said allegations are specifically denied in accordance with Pa,
R.c'P. 1029(e),
WHEREFORE, Defendants demand that judgment be entered in their favor and against
Plaintiff.
NEW MATTER
29. Defendants incorporate their answerslresponses to paragraphs 1-28 above by
reference thereto as though set forth herein at length.
30, At all times relevant to the facts and circumstances set forth in Plaintiff's Second
Amended Civil Action Complaint, Plaintiff operated his bicycle in a negligent, reckless and/or
careless manner as follows:
a. Failing to have his bicycle under proper and adequate control
at the time of the incident;
b, Careless and reckless operation of his bicycle;
c. Failing to keep a proper lookout for other motor vehicles
which were lawfully traveling upon the traveled portion of
the roadway in question;
d. In operating his bicycle in a reckless manner without due
regard for the rights, safety and position of those who were
lawfully traveling upon the roadway in question, one of
whom was Charles Etherton, Jr.;
e. Operating his bicycle in violation of the applicable local
ordinances and the Statutes of the Commonwealth of
Pennsylvania, including, but not limited to those statutes
pertaining to careless driving;
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f. In failing to obtain the proper training, education and/or
instruction in the safe and lawful operation of a bicycle on
roadways and highways in the Commonwealth of
Pennsylvania;
g, In operating his bicycle at the location in question when he
was not qualified to do so;
h. In violating the pertinent proVISIOns of the Pennsylvania
Vehicle Code, including, but not limited to those provisions
pertaining to careless driving;
i. In failing to maintain his bicycle m a safe and proper
mechanical and operating condition;
J, In operating his bicycle on the berm or shoulder of the
highway in question in direct violation of the Motor Vehicle
Code of the Commomyealth of Pennsylvania;
k. In failing to take appropriate and available evasive action and
maneuvers to refrain from driving his bicycle off of the right
berm/shoulder of the highway in question;
L In failing to pay proper attention and recognize that a vehicle
ahead which had been lawfully traveling in the traveled
portion of the roadway in question had made a sudden stop
which might require Defendants' tractor-trailer to have to
take evasive action by moving into the available
berm/shoulder of the roadway in question;
m, In failing to operate his bicycle on the traveled portion of the
roadway as opposed to in the right berm/shoulder;
n, In unlawfully driving his bicycle on the particular roadway
in question; and
0, In failing to apply the brakes on the bicycle as required
under the circumstances to bring the bicycle to a stop
without further incident.
31. Plaintiff was contributorily negligent as set forth above.
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32. Plaintiff's contributory negligence outweighed any alleged negligence of
Defendants, which is specifically denied.
33, Plaintiff's claims are barred either in whole or in part by the provisions of the
Pennsylvania Comparative Negligence Act in that the negligence of Plaintiff was quantitatively
greater than any other alleged negligence involved,
34, Plaintiff knowingly and voluntarily assumed the risk of injury by operating his
bicycle at the location and in the manner which he did at the time of the incident in question.
35, Defendants were not negligent.
36, The incident and any resulting injuries/damages to Plaintiff, which are specifically
denied, may have been caused either in whole or in part by the acts or omissions of persons/entities
that are not parties to this litigation,
37, The incident and any alleged resulting injuries/damages to Plaintiff, which are
specifically denied, may have been caused either in whole or in part by the acts or omissions of
persons/entities over whom Defendants had no control or right to control.
38, Plaintiff has failed to mitigate his damages,
39. With regard to Count II of Plaintiff's Second Amended Civil Action Complaint,
Plaintiff has failed to state a cause of action upon which relief may be granted.
40. Defendants have paid all first party benefits that may have been due and/or owing
to the extent that they have been properly submitted by or on behalf of Plaintiff.
41. Defendants have not been made aware by or on behalf of Plaintiff of any
outstanding first party benefits alleged due and/or owing,
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WHEREFORE, Defendants demand that judgement be entered in their favor and against
Plaintiff,
Peters & Wasilefski
Thomas A. L
Attorne #526
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
By:
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Attorney for Defendant,
Charles Etherton, If. and
Cressler Trucking, Inc"
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VERIFICATION
I hereby affirm that the following facts are correct:
I am counsel for Defendants, Cressler Trucking and Charles Etherton, Jf. in the
foregoing action and I am authorized to make this Verification; I have read the Defendant,
Cressler Trucking and Charles Etherton, Jr's Answer and New Matter to Second Amended Civil
Action Complaint and verify that the information contained therein is true and correct to the best of
my knowledge, information and belief, This Verification is made by me, instead of Defendants,
since the Verifications of the Defendants could not be obtained within the time prescribed for filing
the pleading, I hereby acknowledge that the facts set forth in the aforesaid Defendant, Cressler
Trucking and Charles Etherton, Jr's Answer and New Matter to Second Amended Civil Action
Complaint are made subject to the penalties of 18 Pa, C.S, Section 4904 relating to unsworn
falsification to authorities.
D'h' '7; P'<>>f
Thomas A,
Attorney or Defe , Cressler Trucking
and Charles Etherton, Jf.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendants'
Answer with New Matter to Second Amended Civil Action Complaint, has been served on all
parties of interest by placing the same in the United States mail, first-class postage pre-paid, at
Harrisburg, Pennsylvania on this 9h day of January, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
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RICHARD A. CABAN,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
V,
CHARLES ETHERTON, JR.
and CRESSLER TRUCKING,
Defendants
: NO, 2000-2672 CNIL TERM
IN RE: DEFENDANTS' PRELIMINARY OB.JECTIONS
TO PLAINTIFF'S SECOND AMNEDED COMPLAINT
BEFORE: BAYLEY, GUIDO. .J.J.
AND NOW, this
ORDER OF COURT
Ifr~ day of DECEMBER, 2000, for the reasons set forth
above, defendants' Preliminary Objections are GRANTED in part and DENIED in part.
Paragraph 9( d) of the second amended complaint is stricken. In all other respects
Preliminary Objections are DENIED, Defendants are directed to file an answer within
twenty (20) days.
Edward E. Guido, 1.
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James M. DeSanto, Esquire
For the Plaintiff
Thomas A. Lang, Esquire
For the Defendants
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RICHARD A. CABAN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V,
CHARLES ETHERTON, JR.
and CRESSLER TRUCKING,
Defendants
: NO, 2000-2672 CIVIL TERM
IN RR: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S SECOND AMENDED COMPLAINT
BEFORE: BAYLEY. GUIDO. n.
OPINION AND ORDER OF COURT
Plaintiff commenced this action by complaint on May 1,2000. Defendants responded
with preliminary objections, Plaintiff has since filed two amended complaints, neither of
which resolved the preliminary objections to defendants' satisfaction,
Currently before us are defendants' preliminary objections to plaintiffs second
amended complaint. The issues raised are as follows:
(1.) Should certain paragraphs of the complaint be stricken for failure to
conform to Pa. R.C.P. 1019(a)?
(2,) Should plaintiff s claim for interest, costs and attorney fees pursuant
to S 1797 and S 1798 ofthe Pennsylvania Motor Vehicle Financial
Responsibility Lawl (hereinafter "PMVFRL") be dismissed for lack of
standing?
The parties have briefed and argued their respective positions, This matter is now ready
for disposition,
[75 Pa. C.S.A. 91797 and 91798
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2000-2672 CIVIL TERM
FACTUAL BACKGROUND
This case arises out of a collision between a truck operated by Defendant Etherton
and a bicycle operated by plaintiff, Defendant Etherton was employed, and the truck he
was operating was owned, by Defendant Cressler Trucking,
At the time of the accident, plaintiff neither owned a motor vehicle nor lived in a
household where someone else owned a motor vehicle, Therefore, he must look to the
insurer of the truck for payment of his fIrst party benefIts.2 Defendant Cressler Trucking
was self insured.
DISCUSSION
Failure to comply with Pa. R.C.P.I019(a).
Defendants have asked us to strike several subparagraphs of the complaint They
contend that those subsections do not conform to Pa. Rule of Civil Procedure 1019(a)
which requires that "the material facts on which a cause of action, , . is based shall be
stated in a concise and summary form." The language in dispute is as follows:
9. The negligence, recklessness, and carelessness of the Defendants,
jointly and severally consisted of the following:
c. Careless and reckless operation of their motor vehicle;
d, Failing to exercise due care and caution under the circumstances;
h, Operating their vehicle in violation in the applicable local ordinances
and the statutes of the Commonwealth of Pennsylvania, including, but not
limited to those statutes pertaining to careless driving;
1. Violations of the pertinent provisions of the Pennsylvania Vehicle
Code, including, but not limited to those provisions pertaining to careless
, driving;
275 Pa, C.S,A. ~ 1713(a)(4), complaint paragraph 22.
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2000-2672 CIVIL TERM
Defendants base their objections on the oft cited case of Connor v, Allegheny
General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). We have reviewed the briefs of the
parties as well as the cases cited therein, Weare satisfied that none of the above
language needs to be stricken except for that contained in paragraph 9( d), The allegation
of "(f)ailing to exercise due care and caution under the circumstances" is virtually
identical to the objectionable language contained in Connor and has been stricken by this
Court in the past 3
Legal standing.
Count II of the second amended complaint contains a claim for first party benefits
against Defendant Cressler. As part of the claim, plaintiff seeks to recover costs, interest
and attorney fees pursuant to 75 Pa, C.S.A. 99 1797 and 1798, Defendant Cressler
contends that plaintiff has no standing to maintain a claim under those particular sections.
The source of first party benefits is governed by Section 1713 of the PMVFRL
which provides as follows:
~ 1713. Source of benefits
(a) General rule.-(A) person who suffers injury arising out ofthe
maintenance or use of a motor vehicle shall recover first party benefits
against applicable insurance coverage in the following order of priority:
(I) For a named insured, the policy on which he is the named insured,
(2) For an insured, the policy covering the insured,
(3) For the occupants of an insured motor vehicle, the policy on that
motor vehicle.
(4) For a person who is not the occupant of a motor vehicle, the policy on
any motor vehicle involved in the accident
75 Pa, C.S,A, 91713.
3 See Kitzmiller et al v. Riverton Consolidated Water Company, 38 Cumb, L.J, 33, 34 (1987),
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2000-2672 CIVIL TERM
Since plaintiff was not an insured under any other automobile policy, the parties
agree that his claim for first party benefits against defendant Cressler must be based upon
Section 1713(a)(4),
Defendant Cressler contends that attorney fees, interest, and costs are recoverable
under the PMVFRL only where a insured-insurer relationship exists. Since no such
policy existed between it and plaintiff, it argues that he has no standing to claim those
items. We disagree.
Claim under ~ 1798.
Section 1798(b) of the PMVFRL provides as follows:
Unreas"nable refusal to pay benefits.- In the event an insurer is found to
have acted with no reasonable foundation in refusing to pay the benefits
enumerated in subsection (a) when due, the insurer shall pay, in addition
to the benefits owed and the interest thereon, a reasonable attorney fee
based upon actual time expended.
75 Pa. C.S,A. S 1798(b), The clear language of the act allows for the imposition of
attorney fees and interest against an "insurer." It contains no requirement that the
claimant be an "insured." While the word "claimant" is used numerous times throughout
section 1798, the word "insured" does not appear at all.
Defendant Cressler cites the case of Williams v. Tuck, 397 Pa, Super. 213, 579
A,2d 1332 (1990) for the proposition that an insured-insurer relationship must exist
before attorney fees may be recovered under Section 1798(b). The Williams case stands
for no such proposition, The holding of the court was that a claimant under the assigned
claims plan could not take advantage of the interest and attorney fees provisions of
Section 1798(b), However, defense counsel ignores the clear language of the Court
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2000-2672 CIVIL TERM
stating that Section 1798(b) is available to those whose claim, like plaintiff s, is based
upon Section 1713 ofthe PMVFRL, As the Court stated:
Section 1713 of the MVFRL creates the following priority system to
determine the source of first party benefits for a person who suffers injury
arising out of the maintenance or use of a motor vehicle:
(1) For a named insured, the policy on which he is the named
insured.
(2) For an insured, the policy covering the insured.
(3) For the occupants of an insured motor vehicle, the policy on
that motor vehicle,
(4) For a person who is not the occupant ofa motor vehicle, the
policy on any motor vehicle involved in the accident . . .
270 Pa.C.S. S 1713.
Where an insurer fails to pay first party benefits required under this
subchapter to an eligible claimant, attorneys fees may be recoverable
under 75 Pa, C.S, S 1798,
579 A.2d at 1334, While the above language is dicta, we choose to follow it
Claim under ~ 1797.
Defendant's attack on plaintiff s standing to claim attorney fees, interest and costs
under Section 1797 is two fold. In the first instance, it claims that those items are
available only pursuant to "an appeal from the decision of a peer review organization to
the Court of Common Pleas," 4 It also argues that an insured-insurer relationship must
exist before those items may be claimed,
Defendant's first argument is wholly without merit Section 1 797(b)(4) provides
in relevant part:
. , . (a)n insured may challenge before a court an insurer's refusal to pay
for past or future medical treatment or rehabilitative services or
merchandise, the reasonableness or necessity of which the insurer has
, not challenged before a PRO.
4 Defendants' brief, p, 8,
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2000-2672 CIVIL TERM
75 Pa, C.S.A. 9 1797(b)(4) (emphasis added). The language of that section clearly
allows for court review without a decision by a peer review organization. Section
1797(b)(6) goes on to provide that in the event ofa court determination in favor of the
insured, the insurer must pay interest and attorney fees,
Defendants' second argument is more problematic, Sections 1797(b)(4) and (6)
use the terms "insured" and "insurer" rather than "claimant" The question is whether
that language precludes plaintiff from availing himself of those sections, We think not
We believe that plaintiff can fairly be classified as an "insured" within the meaning of the
statute,
The cost containment provisions of Section 1797 are applicable to
(A) person or institution providing treatment, accommodations, products
or services to an injured person for an injury covered by liability or
uninsured and underinsured benefits or first party medical benefits,
including extraordinary medical benefits, for a motor vehicle described in
Subchapter B 1 (relating to motor vehicle liability insurance first party
benefits). . .
75 Pa. C.S.A. 9 1797(a) (emphasis added). Section 1713(a)(4) is contained in
"Subchapter B," Therefore, we are satisfied that plaintiffs status as a claimant under
Section 1713 allows him to avail himself of the remedies made available in Section 1797,
including Sections 1797(b)(4) and (6).
To hold otherwise would be to hold that the entire peer review process contained
in Section 1797 would be inapplicable to those numerous situations in which a claim for
first party benefits is made other than through an insurance policy purchased by the
claimant or a family member. This interpretation would be contrary to the public policy
as articulated by our appellate courts:
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2000-2672 CIVIL TERM
The intent of the General Assembly in enacting the MVFRL, of which S
1797(a) is a part, was to reduce the rising coSt of purchasing motor vehicle
insurance, Motorists Ins, Companies v Emig. 444 Pa, Super. 524, 664
A.2d 559,566 (1995), "The enactment of the MVFRL reflected the
legislature's concern for the spiraling cost of automobile insurance and the
resultant increase in the number of uninsured motorists driving on public
highways." Paylor v, Hartford Ins. Co" 536 Pa. 583, 587 640 A.2d 1234,
1235 (1994), The primary cost saving mechanism to reduce insurance
premiums was the medical cost containment provisions of S 1797 ofthe
Act
This legislative concern for the increasing cost of insurance is the
public policy that is to be advanced by statutory interpretation of the
MVFRL, Paylor, 536 Pa. at 587,640 A.2d at 1235,
Pittsburgh Neurosurgery Assoc, V. Danner, 733 A.2d 1279,1282 (Pa. Super, 1999,)
We do not believe that a policy of insurance must exist between an "insured" and
"insurer" as a precondition to an award of counsel fees and costs under Section
1 797(b )( 6), Therefore, we will dismiss this portion of defendant's preliminary
objections.
ORDER OF COURT
AND NOW, this 18TH day of DECEMBER, 2000, for the reasons set forth above,
defendants' preliminary Objections are GRANTED in part and DENIED in part,
Paragraph 9( d) of the second amended complaint is stricken, In all other respects
Preliminary Objections are DENIED. Defendants are directed to file an answer within
twenty (20) days.
By the Court,
/s/ Edward E. Guido
Edward E. Guido, J.
James M, DeSanto, Esquire
Thomas A. Lang, Esquire
7
I
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PYS510
Cumberland County Prothonotary's Office
Civil Case Inquiry
Page
1
2000~02672 CABAN RICHARD A (vs) ETHERTON CHARLES JR ET AL
Reference No..:
Case Type.....: COMPLAINT
Judgment......: .00
Judge Assigned:
Disposed Desc.:
------------ Case Comments -------------
Filed........:
Time......... :
Execution Date
Jury Trial....
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
CABAN RICHARD A
146 WEST HIGH STREET
CARLISLEPA 17013
ETHERTON CHARLES JR
4 WEST MADISON AVENUE
JOHNSTOWNNY 12095
CRESSLER TRUCKING INC
1069 SEIBERT AVENUE
SHIPPENSBURG PA 17257
5/01/2000
2:37
0/00/0000
0/00/0000
PLAINTIFF
DESANTO JAMES M
DEFENDANT
DEFENDANT
********************************************************************************
* Date Entries *
********************************************************************************
5/01/2000
5/23/2000
~iS~1>23/2000
~ii\~23/2000
5/31/2000
6/05/2000
6/08/2000
6/08/2000
6/30/2000
7/05/2000
7/27/2000
7/27/2000
8/28/2000
FIRST ENTRY
COMPLAINT - CIVIL ACTION
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litiqant.: CRESSLER TRUCKING INC
SERVED : 5/11/00 SHBG PA COMPL
~~~~~::::~-~~~:~~-~~-~~~-~~~~~-~-~~~~~-~~~~~~~~~~------------------
PRELIMINARY OBJECTIONS OF DEFTS TO PLFFS COMPLAINT PURSUANT TO
PA RCP 1028
PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY
OBJECTIONS TO PLFFS COMPLAINT - BY THOMAS A LANG
-------------------------------------------------------------------
CERTIFICATE OF SERVICE
-------------------------------------------------------------------
AMENDED CIVIL ACTION COMPLAINT
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY
OBJECTIONS TO PLFFS AMENDED COMPLAINT BY THOMAS A LANG ESQ
-------------------------------------------------------------------
PRELIMINARY OBJECTIONS OF DEFTS TO PLFFS AMENDED COMPLAINT
PURSUANT TO RCP 1028
-------------------------------------------------------------------
SECOND AMENDED CIVIL ACITON COMPLAINT
-------------------------------------------------------------------
SECOND AMENDED CIVIL ACTION COMPLAINT
-------------------------------------------------------------------
PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFFS SECOND AMENDED
COMPLAINT PURSUANT TO PA RCP 1028
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - ATTY THOMAS A LANG
-------------------------------------------------------------------
PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANTS
~ - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits Bea Bal Pvmts/Adi End Bal *
********************************~***********************************************
COMPLAINT
TAX ON CMPLT
SETTLEMENT
JCP FEE
35.00 35.00
.50 .50
5.00 5.00
5.00 5.00
------------------------
45.50 45.50
.00
.00
.00
.00
------------
.00
~ "
.
PYSSIO
Cumberland County Prothonotary's Office
Civil Case Inquiry
.'
2000-02672 CABAN RICHARD A (vs) ETHERTON CHARLES JR ET AL
Reference No..:
Case Type.....: COMPLAINT
Judgment......: .00
Judge Assigned:
Disposed Desc.:
------------ Case Comments -------------
Filed........ :
Time......... :
Execution Date
Jury Trial....
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
.'
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Page
2
5/01/2000
2:37
0/00/0000
0/00/0000
********************************************************************************
* End of Case Information *
********************************************************************************
.
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#
KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
vs.
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
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Attorney for Plaintiff(S)
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION AT LAW
NO. 00-2672
SECOND AMENDED CIVIL ACTION COMPLAINT
"NOTICE'.
"You haVte 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 w,riting 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 and a judgment may
be entered against you by the court without
further notice for any money claimed in the
complaint or for any other claim or relief
requested by the plaintiff. you may lose
money or property or other rights important
to you.
"YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ~CE. 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.
Court Administrator
Courthouse, 4th Floor
1 Courthouse Square
Carlisle, PA 17013
"AVISO"
"Le han demandado a usted en la corte.
Si usted quiere defenderse de este demandas
expuestas en las paginas siguientes, usted
tiene veinte (20) dias de plazo al partir de
la fecha de la demands y la notification.
Hace falta asentar una comparencia escrita 0
en persona 0 con un abogado y entregar a la
corte en forma escrita sus defensas 0 sus
objeciones alas demandas en contra de su
persona. Sea avisado Wle si usted no se
defiende, la corte tomara medidas y puede
continuar la demanda en contra suya sin previo
aviso 0 notification. Ademas, la corte puede
decidir a favor dei demandante y requiere que
usted cumpla COl) todas las provisiones de esta
demand",. Usted puede perder dinero 0 sus
propiedades u ostros derechos importantes para
usted.
"LLEVE ESTA DEMANDA A UN ABOGADO
IMMEDIATAMENTE. SI NO TIENE ABOOADO 0 SI NO
TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO
A LA OFIICINA CUYADIRECCION SE ENCUENTRA
ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL."
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
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146 w. High street
Carlisle, PA 17013
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CIVIL ACTION AT LAW
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CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
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SECOND AMENDED CIVIL, ACTION COMPLAINT
1. The Plaintiff, Richard A. Caban, is an adult
individual residing at 146 W. High Street, Carlisle, PA 17013.
3. The Defendant, Cressler Trucking, Inc., (hereinafter
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2. The Defendant, Charles Etherton, Jr., is an adult
individual who, at all times material hereto, resided at the above
address.
referred to as "Cressler") is a business entity organized and
existing under and by virtue of the statutes of the Commonwealth of
Pennsylvania, doing business in the Commonwealth of Pennsylvania,
with a principal place of business at the above address.
4. On or about May 21, 1999, Defendant, cressler, owned
and/or possessed and by its agent, servant, workman and/or
employee, Charles Etherton, Jr., controlled and operated the 1995
Renworth Tractor-Trailer motor vehicle involved in the accident
hereinafter more fully described.
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5. At all times material hereto, the vehicle of the
Defendant, Cressler was being operated by Defendant, Charles
Etherton, Jr., in his capacity as its agent, servant, workman
and/or employee, acting in the scope and course of his employment
with Cressler and in furtherance of its business.
6. On or about May 21, 1999 at 3:30pm,
Plaintiff,
Richard A. Caban, was operating his bicycle in a easterly direction
on the shoulder of Ritner Highway, at or near its intersection with
Industrial Drive, both of which are public highways in Carlisle,
PA.
7.
At the aforesaid time and place, defendant, Charles
Etherton, Jr., was operating the motor vehicle owned by defendant,
Cressler, in an easterly direction on Ritner Highway at or near its
intersection with Industrial Drive, Carlisle, PA.
8. At the aforesaid time and place, defendant, Charles
Etherton, Jr., acting as aforesaid, so negligently, carelessly and
recklessly operated said motor vehicle so as to cause it to crash
into plaintiff and plaintiff's bicycle, causing serious and
permanent injuries and other losses more fully set forth
hereinafter.
9. The negligence, recklessness, and carelessness of
the Defendants, jointly and severally consisted of the following:
a. Operating their motor vehicle at a high and
excessive rate of speed under the circumstances;
b. Failing to have their motor vehicle under proper
and adequate control at the time of the collision;
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c. Careless and reckless operation of their motor
vehicle;
d. Failing to exercise due care and caution under
the circumstances;
e. Failing to keep a proper look out for traffic
ahead in violation of the Pennsylvania Motor Vehicle
Code;
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f. Operating their vehicle in a reckless manner
without due regard for the rights, safety and position of
those lawfully upon the highway, one of whom was the
Plaintiff;
g. Failing to give proper and sufficient warning of
the approach and/or position of said vehicle;
h. Operating their vehicle in violation in the
applicable local ordinances and the statutes of the
Commonwealth of Pennsylvania, including, but not limited
to those statutes pertaining to careless driving;
i. Defendant, Cressler, failed to properly train
and/or instruct its agent, servant, workman and/or
employee, Defendant, Charles Etherton, Jr., in the safe
operation of the motor vehicle;
j. Defendant, Cressler, negligently entrusted the
motor vehicle to a person not qualified to operate said
vehicle;
, 1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code, including, but not limited to
those provisions pertaining to careless driving;
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o. Failed to maintain their vehicle(s) in
a safe and proper mechanical and operating condition.
10. Plaintiff, Richard A. Caban, is entitled to full
tort rights as set forth in the Amended Motor Vehicle Financial
Responsibility Act.
11. Plaintiff, Richard A. Caban, has received injuries
which have resulted in a permanent serious disfigurement and/or a
serious impairment of body functions.
12. This accident was caused solely by the carelessness,
negligence, and recklessness of the Defendants and was due in no
manner whatsoever to any act or failure to act of the part of the
Plaintiff.
RICHARD A.
COUNT. I
CMlANv~. CRE,SSLER !1!~UCKI'G . INC..
AND CDRLES E'l'KERmON. JR,.
13. By reason of the negligence and carelessness of the
Defendants as hereinbefore alleged, Plaintiff suffered severe and
permanent injuries to his bones, muscles, tendons, ligaments,
discs, nerves, head, neck, shoulders, arms, elbows, back, chest,
stomach, legs, knees and body including but not limited to: sprain
of right wrist, sprain of right knee, cervical sprain and strain,
lumbosacral strain and sprain and internal derangement of his left
shoulder. Plaintiff suffered internal injuries of an unknown
nature. He suffered severe and permanent aches, pains, mental
anxiety and anguish, severe shock to his entire nervous system and
other injuries and/or aggravation of pre-existing injuries, the
full extent of which is not yet known. He has in the past and will
in the future undergo severe pain and suffering as a result of
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which He has in the past and will in the future be unable to attend
to his usual activities. The Plaintiff believes and therefore
avers that his injuries are serious and permanent in nature.
14. As a further result of this accident, plaintiff has
suffered severe and permanent physical pain, mental anguish and
humiliation and may continue to suffer same for an indefinite time
in the future, all to his great detriment and loss.
15. As a result of the within action, Plaintiff has
incurred and will in the future incur expenses in the treatment of
his injuries.
16. As a result of the negligence of the Defendant as
bereinbefore alleged, Plaintiff has sustained a loss of earnings
and earning capacity in the past and will sustain such losses in
the future, to his great financial loss and detriment.
17. As a result of the negligence of the Defendant as
bereinbefore alleged, Plaintiff has been obliged to spend large
sums of money for medicine, medical care and attention in an effort
to cure his aforesaid injuries and may be obliged to spend
additional sums of them for the same purposes in the future, to his
great financial loss and detriment.
18. As a direct and reasonable result of the accident
aforementioned, Plaintiff has or may hereinafter incur other
financial expenses or losses which do or may exceed amounts to
which he may otherwise be entitled to recover pursuant to the
pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.S.A. S1711 et seq.
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WHEREFORE, plaintiff, Richard A. Caban, demands judg,ement
against the defendants, Cressler Trucking, Inc. and Charles
Etherton, Jr., jointly and severally, in a sum in excess of twenty-
five thousand dollars {$25,OOO.OO}, plus costs, interests and
damages for delay.
COUNT :n:
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC.
(FIRST PARTY BENEFITS)
19. Paragraphs 1 through 18 are incorporated herein as
though the same were here set forth at length.
20. On or about May 21, 1999, and for some time prior
thereto, defendant, Cressler, was a self-insured entity under the
terms of which it provided first party benefits in favor of the
Pennsylvania
Financial
Law
Responsibility
Vehicle
Motor
{hereinafter referred to as "PMVFRL"}, 75 Pa.C.S.A. S1701, et. seq.
said policy of insurance being in full force and effect at all time
material hereto.
21. On or about May 21, 1999, plaintiff, Richard A.
Caban, sustained bodily injuries in an accident arising out of the
maintenance or use of a motor vehicle as defined in the aforesaid
PMVFRL.
22. Pursuant to PMVFRL S1713, {a.} {4} defendant
Cressler must provide first part benefits to plaintiff, Richard A.
Caban.
23. Subsequent to the aforesaid accident, plaintiff ,
Richard A. Caban, applied for allowable expenses pursuant to and in
accordance with said PMVFRL.
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24. Following the accident, plaintiff, Richard A. Caban,
did from time to time thereafter submit to defendant, Cressler, in
writing the amount of allowable expenses incurred, including the
following which have not been paid:
Carlisle Hospital (ER) $408.00
RWC Corp. $220.00
Carlisle Imaging Associates $90.00
Carlisle Hospital $226.00
RWC Corp. $140.00
Carlisle Hospital $19.00
RWC Corp. $140.00
David C. Baker, MD $2,151.00
Penn's Wood Physical Therapy
Carlisle Ho.spital $130.00
Moffit, Pease and Lim(EKG) $30.00
Carlisle Hospital $4,256.02
Blue Mountain Anesthesia $1,040.00
West Shore EMS $42.30
Prescriptions $74.50
Wage Loss $8,846.25
25. As a result of the failure of defendant, Cressler,
to pay first party benefits, plaintiff, Richard A. Caban, has been
forced to incur attorney fees and legal expenses in an effort to
collect the amount that is now past due.
26. Plaintiff believes and therefore alleges that
defendant, Cressler, may refuse payment of other allowable expenses
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which become overdue after commencement of this suit and therefore,
seeks payment of same as they become due.
27. In accordance with the provisions of the PMVFRL,
S1701, et. seq., plaintiff is entitled to payment for the aforesaid
allowable expenses.
28. Pursuant to PMVFRL, S1797 and S1798, Plaintiff is
entitled to the outstanding amount of any bills, plus interest at
12% per annum, as well as costs and all attorney's fees.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
KRAFT & KRAFT, P.C.
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Dated:
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J. roes M. DeSanto, Esquire
ttorney for Plaintiff
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VERIFICATION
I, Richard Caban, do hereby verify that I am the Plaintiff in the foregoing
action; that the attached Civil Action is based upon the information which I
have furnished to my counsel and information which has been gathered by my
counsel in the preparation of the lawsuit. The language of the civil Action is
that of my counsel and is not mine. I have read the civil Action and to the
extent that the information therein is based upon information I have given
counsel, it is true and correct to the best of my knowledge, information and
belief.
To the extent that the contents of the civil Action are that of
counsel, I have relied upon counsel in making this Verification. I understand
that false statements made herein are made subject to the penalties of 18 Pa.
C.S.A. section 4904 relating to unsworn falsifications to authorities.
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RICHARD A. CABAN,
Plaintiff
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COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
BRIEF IN SUPPORT OF DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFF'S SECOND AMENDED COMPLAINT PURSUANT TO Pa. R.C.P. 1028
I. PROCEDURAL mSTORY
Plaintiff, Richard A. Caban ("Plaintiff"), commenced the above-captioned action by
Complaint filed against Defendants, Charles Etherton, Jr., and Cressler Trucking, Inc.
("Defendants"), on or about May 1, 2000. On May 23, 2000, Defendants filed Preliminary
Objections to Plaintiff's Complaint, along with a Brief in Support thereof. In response to the
Preliminary Objections, Plaintiff filed an Amended Complaint Defendants filed Preliminary
Objections to Plaintiff's Amended Complaint and a Brief in Support thereof. Although failing to
cure all defects in the Amended Complaint and adding new ones, Plaintiff has filed a Second
Amended Complaint, Defendants have therefore been compelled to file yet another set of
Preliminary Objections. This Brief is in support of said Preliminary Objections.
n. FACTUAL mSTORY
In his Second Amended Complaint at paragraphs 6-8, Plaintiff avers that while riding his
bicycle in an easterly direction on the shoulder of Ritner Highway near its intersection with
Industrial Drive in Carlisle, Pennsylvania on May 21, 1999, he was involved in an incident with
Defendants' tractor -trailer which had been heading in the same direction. As a result of that
incident, Plaintiff is contending in this litigation that he suffered personal injuries and other
damages,
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m. ISSUES
A. WHETHER THE COURT SHOULD STRIKE PARAGRAPHS
9c. d. h AND I SINCE SAID PARAGRAPHS CONSTITUTE
IMPROPER GENERAL AVERMENTS OF NEGLIGENCE?
B. WHETHER PLAINTIFF LACKS STANDING TO MAINTAIN
A CLAIM PURSUANT TO PMVFRL ~ 1797 AND ~ 1798?
IV. ARGUMENT
A. THE COURT SHOULD STRIKE PARAGRAPHS 9c. d. h AND
I SINCE SAID PARAGRAPHS CONSTITUTE IMPROPER
GENERAL AVERMENTS OF NEGLIGENCE.
In paragraph 9 of his Second Amended Complaint, Plaintiff attempted to set forth a laundry
list of alleged negligent conduct on the part of the Defendants, Relative to Defendants'
Preliminary Objections, Plaintiff has alleged the following in paragraph 9:
9, The negligence, recklessness and carelessness of the
Defendants, jointly and severally consisted of the following:
c, Careless and reckless operation of their
motor vehicle;
d. Failing to exercise due care and caution
under the circumstances;
h, Operating their vehicle in violation in(sic) the
applicable local ordinances and the statutes of
the Commonwealth of Pennsylvania,
including, but not limited to those statutes
pertaining to careless driving;
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Pennsylvania Vehicle Code, including, but
not limited to those provisions pertaining to
careless driving.
A plain reading of the aforementioned allegations of Plaintiff's Second Amended Complaint
clearly evidences that said allegations are vague, non-specific, and fail to comply with the pleading
mandate of Pa. R.C.P, 1019(a) that, "the material facts on which a cause of action or defense is
based shall be stated in a concise and summary form." As this Court is well aware, some time ago
such boilerplate averments used to receive little attention, However. in Conner v. Allee:henv
General Hospital, 501 Pa, 306, 461 A.2d 600 (1983), the Supreme Court attached considerable
significance to such otherwise innocuous boilerplate provisions, In Conner, supra., Plaintiff
underwent a barium enema, During the procedure, barium solution leaked out of a perforation in
Plaintiff's colon into her abdominal cavity. Subsequently, surgery was performed to remove the
barium, Additional surgery was also necessary to remove and repair other damage,
In the original Complaint, Plaintiff essentially alleged that the Defendant was negligent in
performing the barium enema procedure. However, Plaintiff's Complaint also contained a boiler-
plate provision that Defendant was negligent in "otherwise failing to use due care and caution
under the circumstances", Conner, 461 A,2d at 601.
When the case was called for trial, Plaintiff filed a Motion to Amend her Complaint
alleging an entirely new theory of negligence, The trial court denied the Motion to Amend and the
Superior Court affirmed reasoning that said amendment was barred by the statute of limitations
because it "sought to add new allegations of negligent acts by proceeding on a different theory".
Conner, 461 A.2d at 602.
The Supreme Court reversed, holding that Plaintiff's proposed amendment did not state a
3
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new cause of action, rather, it amplified and existing cause of action. The Supreme Court
specifically pointed to the boilerplate language in the Complaint that the Defendant was negligent
"in otherwise failing to use due care and caution under the circumstances" as the allegation which
the proposed amendment would amplify. At footnote 3, the Supreme Court added, in pertinent
part:
If [Defendant] did not know how he 'otherwise failed to use due
care and caution under the circumstances', he could have filed a
Preliminary Objection in the nature of a request for a more specific
pleading or could have moved to strike that portion of [Plaintiff's]
Complaint
In the present case, Defendants are severely prejudice if paragraphs 9c, d, hand 1 are
permitted to remain in Plaintiff's Second Amended Complaint, since Plaintiff could essentially
have the right to amend again, adding a new theory of negligence at any time during the course of
these proceedings, even after the statute of limitations has expired. Furthermore, said paragraphs
fail to conform to law and the Rules of Court since said allegations are vague and do not state
material facts. The allegations are impertinent Furthermore said paragraphs fail to advise
Defendants of the specific acts of commission or omission, which constitute the alleged negligence
of which Plaintiff complains, the general allegations contained in said paragraphs fail to inform
Defendants of the issues that they must meet at trial, and further prevent them from forming a
proper Answer to the Second Amended Complaint
With regard to paragraphs 9c and d, this Court on numerous occasions through a variety
of Judges has consistently held that such allegations are improper and will be stricken from a
Complaint Specifically, in 1987 through Judge Bayley, this Court struck very similar allegations
that the Defendant "acted in an otherwise negligent, careless and reckless manner." Rommel v.
Perna, 38 Cumbo L.J. 27, 28 (1987). Likewise, also in 1987 through Judge Hess, this Court
4
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"~"~
struck general allegations that Defendant was negligent in "otherwise failing to exercise due care
under the circumstances." Kitzmiller. et aI. v. Riverton Consolidated Water Company, 38
Cumbo L.J. 33, 34 (1987). In his 1983 Opinion in Keller v. 115 St. Johns. Inc., 34 Cumbo L.J.
3, 8 (1983), Judge Shughart perhaps best explained the reasons for such mlings ii'om this Court by
indicating that, "Plaintiff is not permitted to make a general charge that Defendant was negligent
and then hope that facts supporting that claim will come to light in the course of discovery. "
Although the same general rule should be applied to paragraphs 9h and I, said vague
allegations are perhaps even more egregious as Defendants have no idea whatsoever what acts of
commission or omission are being alleged against them by the Plaintiffs' bald general reference to
"applicable local ordinances", "statutes of the Commonwealth of Pennsylvania" and the "pertinent
provisions of the Pennsylvania Vehicle Code". Plaintiff attempted to cure the defect in his original
Complaint by adding the vague language, "including, but not limited to those statutes
pertaining to careless driving" in both paragraphs 9h and 1. However, it is once again obvious that
the Plaintiff has purposefully set forth very general and vague allegations of violations of
ordinances, statutes and/or code provisions Witll the hope that facts supporting said claims will be
developed in discovery. Such pleading practice is not countenanced in this Commonwealth, and it
amounts to nothing but severe and certain prejudice to Defendants.
The Court of Common Pleas of Schuylkill County was confronted with the very same
issues in Rodichok v. Oxenrider, Docket Number: S-686-1987. Judge Dolbin of the Court of
Common Pleas of Schuylkill County upheld Defendant's Preliminary Objections to Plaintiff's
allegations that the Defendant was negligent and careless for "violating the statutes of the
Commonwealth of Pennsylvania and the local ordinances and regulations". In striking such
allegations, Judge Dolbin specifically stated that, "the above broad allegations 'tell little and skip
5
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nothing', and make it impossible for the Defendant to file a rational Answer". A copy of the
Court's Opinion in Rodichok is attached hereto as Exhibit "A" for the Court's convenience.
Furthermore, Judge Dolbin stated:
There is absolutely no question but that the Defendant is entitled to
be advised of the specific acts of omission or commission which the
PlaintiiT believes constitutes negligence, so that Defendant may
adequately respond to the same, and properly prepare his defense.
It is absurd for the Defendant to be required to answer allegations
which are so broad as to be unanswerable.
Similarly, in David Georl!:e Y. Omar Avoub. MD. et aI., Judge Ackerman was requested
to strike numerous allegations from Plaintiff's Complaint, one of which alleged that, "Defendant
otherwise failed to exercise due care under the circumstances." In agreeing to strike said averment
from Plaintiff's Complaint, Judge Ackerman specifically found that said allegation fails to
"conform to the requirements of Rule 1019(a) since no specific facts are plead." Georl!:e, 70
Westmoreland L.J. 87, 88 (1988). In Starr v. Myers, Judge Dowling of the Court of Common
Pleas of Dauphin County engaged in a rather extensive analysis of such allegations of negligence.
After discussing the Supreme Court's decision in Conner, and numerous cases which flowed
thereafter, Judge Dowling concluded:
There are, it seems, three courses which a Court may follow. We can
permit boilerplate allegations and allow the parties to have recourse to
discovery to flush out the non-specific averments. . . . There is an
intermediate stage, which appears to be in favor at the present time, i.e.,
to allow general averments of negligence so long as they relate back to the
specific allegations. This, however, is rather imprecise and subject very
much to the discretion of the particular judge or Court. ... The third
procedure is to permit only specific allegations on the theory that one
should not be permitted to 'discover' their way to a lawsuit
Starr v. Myers, 109 Dauph. 147, 153-154 (1988).
6
'. . ......~~w f~..f.,
Accordingly, following his involved analysis of this issue, Judge Dowling concluded that,
"it is our feeling that tile only principle which offers any meaningful guidance to prospective
pleaders is to require specificity in all allegations of negligence. Thus, we will no longer
countenance general averments of negligence." Starr, at 115.
With regard to Plaintiff's attempt to cure the defect in paragraphs 9h and I by adding the
phrase "including but not limited to", Plaintiff has only served to compound the problem even
further. Such a phrase only broadens the general, vague allegations even more. If permitted to
remain in the Second Amended Complaint, the phrase, "including but not limited to" could be held
to permit an amendment even after the statute of limitations expires which would be entirely
Improper. In Simon v. Community General Osteopathic Hospital, 108 Dauph. 218 (1988), the
Court through Judge Natale found the phrase "included but not limited to" to be objectionable and
ordered it to be stricken from the Complaint Simon, at 220. Similarly, in Wiest v. L&B
Poultry. et aI., 112 Dauph. 144 (1992), the Court of Common Pleas of Dauphin County through
Judge Dowling struck the phrase "but not limited to" which appeared before specific averments of
negligence as violating the required specificity of pleading. Weist, at 144. As such. said
paragraphs must be stricken from Plaintiff's Second Amended Complaint for this additional reason.
B. PLAINTIFF LACKS STANDING TO MAINTAIN A CLAIM
PURSUANT TO PMVFRL 9 1797 AND 9 1798.
In paragraph 28 of his Second Amended Complaint, Plaintiff has alleged:
28. Pursuant to PMVFRL, S 1797 and S 1798, Plaintiff is
entitled to the outstanding amount of any bills, plus interest
at 12 % per annum, as well as costs and all attorneys' fees.
In paragraph 22 of his Second Amended Complaint, Plaintiff has plainly admitted tllat he
qualifies for first party benefits only pursuant to the statutory provision set fortll in 75 Pa. C.S.A. S
7
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1713(a)(4), and not due to the fact that he is deemed to be an "insured" under any policy of
msurance. Specifically, S 1713 of Title 75 of the Motor Vehicle Code sets forth the order of
priority concerning source of first party benefits for a person who suffers an injury arising out of
maintenance or use of a motor vehicle. Subsections(a)(1) and (2) of S 1713 specifically deal with
the order of priority concerning a "named insured" and an "insured". The two following sections,
those being (a)(3) and (4) of s 1713 specifically deal with individuals who do not qualify as either a
"named insured" or an "insured". Since Mr. Caban was admittedly not an occupant of an insured
. motor vehicle, he qualifies for first party benefits only under & 1713(a)(4). The bottom line is that
the Plaintiff admits in his Second Amended Complaint that he does not qualify for first party
benefits as an 'insured'.
Such an admission on tile part of tile Plaintiff is extremely critical to tile present
Preliminary Objections as it clearly establishes tllat no insurer-insured relationship existed between
the Plaintiff and Defendant, Cressler Tmcking Company, Inc. As such, Plaintiff has no standing
whatsoever to maintain a claim for damages under PMVFRL S 1797 and S 1798. See, Williams
Y. Tuck, 579 A.2d 1332, 397 Pa. Super 213, 215 (1990). In addition thereto, tile recovery of
damages pursuant to PMVFRL s 1797 are only available where an insured is seeking first party
benefits from an insurer, and files an appeal from the decision of a peer review organization to the
Court of Common Pleas. See, Persun v. Federal Kemper, 21 D. & C. 4th 296,298 (1993).
Based upon the foregoing, it is respectfully submitted that Plaintiff has failed to state a
claim in paragraph 28 of his Second Amended Complaint upon which relief may be granted.
Accordingly, Defendants respectfully request this Court to sustain their demurrer to paragraph 28
and the claim for relief stated therein. Alternatively, Defendants respectfully request this Court to
sustain their Motion to Strike paragraph 28 from Plaintiff's Second Amended Complaint.
8
. .
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IV. CONCLUSION
Based upon all of the foregoing, Defendants respectfully request this Court to strike
paragraphs 9c, d, h and 1. In addition thereto, Defendants respectfully request this Court to sustain
their demurrer to paragraph 28. Alternatively, Defendants respectfully request this Court to
sustain tlleir Motion to Strike paragraph 28 from Plaintiff's Second Amended Complaint.
Respectfully Submitted,
Peters & Wasilefski
By:
".reM d't// dCL'I:J
Attorney for Defendants,
Charles Etherton, Jr. and
Cressler Tmcking, Inc.
9
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" L--_ll/i:
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Brief in
Support of Preliminary Objections to Plaintiff's Second Amended Complaint, has been served
on all parties of interest by placing the same in the United States mail, first-class postage pre-paid,
at Harrisburg, Pennsylvania on this 26" day of July, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spmce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
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"
COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY
CIVIL ACTION - LAW
CHRISTINE A. RODICHOK,
Plaintiff
:
No. S 686 - 1987
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vs.
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NED B. OXENRIDER,
Defendant
:
JACK E. FEINBERG, Esq. and
ANTHONY J. MIERNICKI, Esq. - for Plaintiff
=
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DENNIS J. BONETTI, Esq. - for Defendant
OPINION OF COURT
DOLBIN, J.
This matter is presently before the court as a result of
preliminary objections filed to the complaint by the defendant,
Ned B. Oxenrider. Briefs having been filed by both parties in
support of their respective positions, the preliminary objections
are properly before the Court for disposition.
The complaint in trespass filed on May 6, 1987 alleges that
the plaintiff was injured on or about August 11, 1985 when the
vehicle which she occupied as a passenger was struck in the rear
by a motor vehicle operated by the defendant. The accident
allegedly occurred while both vehicles were traveling northward
on U.S. Route 209 in Porter Township, Schuylkill County,
Pennsylvania.
The preliminary objections filed by the defendant are in the
nature of a Motion To Strike, filed pursuant to the .provisions of
Pa.R.C.P. No. i017(b)(2).
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I. WHETHER PLAINTIFF'S AVER0~NT CONTAINED IN PARGARAPH 5j
OF THE COMPLAINT SHOULD BE STRICKEN.
Paragraph 5j of the plaintiff's complaint is set forth as
follows:
"5. The negligence and carelessness of the
defendant consisted of the following:
(j) Being otherwise negligent and careless."
The defendant contends that the above allegation of
negligence severely prejudices him because it allows the
plaintiff at a later date to amend the complaint to introduce a
new theory of negligence even after the applicable statute of
limitations has run.
The plaintiff argues that the defendant is incorrect in his
argument because when the allegations of paragraph 5(j) of the
complaint are read together with paragraph. 4 of the complaint,
there is as much precision as the law requires.
As the defendant correctly points out, the Supreme Court of
Penn$ylvania in CONNOR v. ALLEGHENY GENE~~L HOSPITAL, 50lPa.
1,; 306, 461 A.2d 600 (1983) in construing the language ."in otherwise
failing to use due care and caution under the circumstances" held
that plaintiff's sought after amendment to their complaint was
permissible since the amendment did not state a new ca~se of
action, but merely served as an amplification of the existing
cause of action.
Furthermore, as the defendant correctly argued in his brief,
the above case contained a footnote which rather boldly stated
that if the defendant did not know how it "otherwise failed to
-
.,"--
. ,
(
use due care and caution under the circumstances, it was the
defendant's duty to file preliminary objections to the complaint
in either the form of a motion to strike that portion of the
complaint or in the nature of a motion for a more specific
pleading.
With the Supreme Court's decision in CONNOR v. ALLEGHENY
GENERAL HOSPTTAL(supra), the former innocuous boiler plate
language found in the present complaint took on greater
significance. We believe that a practitioner would be less than
vigilant in failing to object to such language in light of the
above holding of our Supreme Court. Accordingly, the defendant's
Motion To Strike paragraph S(j) of the complaint is granted.
II. WHETHER PARAGRAPHS S(h) and Sri) OF PLAINTIFF'S
COMPLAINT SHOULD BE STRICKEN FOR FAILING TO ALLEGE
SPECIFIC ACTS WHICH CONSTITUTE ALLEGEDLY NEGLIGENT
CONDUCT.
Paragraphs S(h) and Sri) of the plaintiff's complaint, are
set forth as follows:
"5. The negligence and carelessness of the defendant
consisted of the following:
(h) Violating the statutes of the Commonwealth
of Pennsylvania and the local ordinances
and regulations of the area where the accident
occurred pertaining to the operation of a
motor vehicle under the circumstancps;
(i) Being guilty of wilful, wanton and
reckless misconduct in the operation of
said motor vehicle.
The above broad allegations "tell little and skip nothing",
and make it impossible for the defendant to file a rational
answer.
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There is absolutely no question but that the defendant is
entitled to be advised of the specific acts of omission or co-
mission which the plaintiff believes constitutes negligence, so
that the defendant may adequately respond to"the same, and
properly prepare his defense. It is absurd for the defendant to
be required to answer allegations which are so broad as to be
unanswerable.
Paragraphs 5(h) and 5(i) of the complaint must therefore be
stricken.
Accordingly, we enter the following:
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"
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COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY
CIVIL ACTION -LAW
CHRISTINE A. RODICHOK,
Plaintiff
No. 5-686'- 1987
vs.
NED B. OXENRIDER,
Defendant
JACK E. FEINBERG, Esq. and
ANTHONY J. MIERNICKI, Esq. - for Plaintiff
DENNIS J. BONETTI, Esq. - for Defendant
ORDER OF COURT
DOLBIN, J.
AND NOW, this
l'iJ.
~ ~ day of June, 1987, the preliminary
objections to plaintiff's complaint, in the nature of a motion to
strike, are hereby sustained, and paragraphs 5(h)(i) and (j) of
the complaint are hereby stricken.
The plaintiff is hereby given twenty (20) days leave from
notice of this Order to file an Amended Complaint in accordance
with the foregoing Opinion.
BY THE COURT:
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,
RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
'dVl1
NO: OO-Zlffii-CIVIL TERM
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NOTICE TO PLEAD
To: Plaintiff, Richard A. Caban and his Attorney,
James M. DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Philadelphia 19107
You are hereby notified to plead to the enclosed Preliminary Objections of Defendants,
Charles Etherton, Jr. and Cressler Tmcking, Inc. to Plaintiff's Amended Complaint within twenty
(20) days from service hereof or a judgment may be entered against you.
Peters & Wasilefski
By:
Date:r1; 07000
Attorney for Defendants,
Charles Etherton, Jr. and Cressler Tmcking
~ _,_M'
RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S
AMENDED COMPLAINT PURSUANT TO Pa. R.C.P. 1028
AND NOW, come Defendants, Charles Etherton, Jr., and Cressler Tmcking, Ine
("Defendants"), by and tluough their attorneys, Peters & Wasilefski, and interpose the following
Preliminary Objections to Plaintiff's Amended Complaint:
1.
Plaintiff, Richard A. Caban ("Plaintiff"), commenced the above-captioned action by
Complaint filed on or about May 1,2000.
2. On May 23, 2000, Defendants filed Preliminary Objections to Plaintiff's
Complaint, with a Brief in support thereof.
3. In response to the Preliminary Objections, Plaintiff has filed an Amended
Complaint, a copy of which is attached hereto, without admission or adoption thereof, and marked
as Exhibit" A".
4. In paragraphs 6-8 of the Amended Complaint, Plaintiff contends that an incident
occurred involving his bicycle and Defendants' tractor-trailer while both were traveling in an
easterly direction on Ritner Highway at or near its intersection with Industrial Drive in Carlisle,
Pennsylvania on May 21, 1999.
I. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO
COUNT III (BAD F AITID
S. Paragraphs 1 through 4 above are incorporated herein by reference thereto as
though set forth at length.
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6. In Count III of his Amended Complaint, Plaintiff has attempted to allege a cause of
action for bad faith based upon 42 Pa. C.S.A. S 8371.
7. Plaintiff has no standing to maintain a cause of action for bad faith under 42 Pa.
C.S.A. s 8371 as Plaintiff was not an "insured" under an insurance policy of Defendant, Cressler
Trucking.
8. In Count III (Bad Faith) Plaintiff has failed to state a claim upon which relief may
be granted.
WHEREFORE, Defendant, Cressler Trucking respectfully requests the Court to sustain its
Preliminary Objection in the Nature of a Demurrer to Count III (Bad Faith), and dismiss Count III
(Bad Faith) from Plaintiff's Amended Complaint.
n. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT IV
(UNFAIR TRADE PRACTICES)
9. Paragraphs 1 through 8 are incorporated herein by reference thereto as though set
forth at length.
10. In Count IV of his Amended Complaint, Plaintiff has attempted to allege a cause of
action for unfair trade practices based upon 73 P.S. S 201-2, et seq.
11. Plaintiff has failed to state a viable cause of action against Defendant, Cressler
Tlucking in Count IV (Unfair Trade Practices) of his Amended Complaint as he fails to qualify as
a "person who purchases or leases goods or services" as required by 73 P.S. s 201-9.2.
12. Plaintiff has failed to allege a viable cause of action against Defendant, Cressler
Trucking in Count IV (Unfair Trade Practices) of his Amended Complaint in that he has failed to
allege that any alleged loss of money or property which he contends he may have suffered was in
2
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any way related to a purchase or lease of goods or services from Defendant, Cressler Trucking as
required by 73 P.S. S 201-9.2.
13. In Count IV (Unfair Trade Practices) of his Amended Complaint, Plaintiff has
failed to state a claim upon which relief may be granted.
WHEREFORE, Defendant, Cressler Tmcking respectfully requests the Court to sustain its
Preliminary Objection in the Nature of a Demurrer to Count IV (Unfair Trade Practices), and enter
an Order therein dismissing Count IV (Unfair Trade Practices) from Plaintiff's Amended
Complaint.
Ill. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE
14. Paragraphs 1-13 are incorporated herein by reference thereto as though set forth at
length .
15. In paragraph 9 of his Amended Complaint Plaintiff alleges inter ali" the following:
9. The negligence, recklessness and carelessness of the
Defendants, jointly and severally consisted of the following:
c. Careless and reckless operation of their
motor vehicle;
d. Failing to exercise due care and caution
under the circumstances;
h. Operating their vehicle in violation in(sic) the
applicable local ordinances and the statutes of
the Commonwealth of Pennsylvania,
including, but not limited to those statutes
pertaining to careless driving;
3
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1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code, including, but
not limited to those provisions pertaining to
careless driving.
16. Paragraphs 9c, d, hand 1 of Plaintiff's Amended Complaint fail to conform to law
and the Rules of Court since said allegations are vague and do not state material facts. The
allegations are impertinent.
17. Paragraphs 9c, d, h and' I of Plaintiff's Amended Complaint fail to advise
Defendants of the specific acts of commission or omission which constitute the alleged negligence
of which Plaintiff complains.
18. The general allegations contained in paragraphs 9c, d, hand 1 of Plaintiff's
Amended Complaint fail to inform Defendants of tile issues tllat they must meet at trial and further
prevent Defendants from forming a proper Answer to the Amended Complaint.
19. With regard to paragraphs 9c and d of Plaintiff's Amended Complaint, such vague
and conclusory allegations fail to comply with the mandate of Pa. R.C.P. 1019(a) that, "the
material facts on which a cause of action or defense is based shall be stated in a concise and
summary form. "
20. With regard to paragraphs 9h and I of Plaintiff's Amended Complaint, Plaintiff has
failed to specifically identify which "applicable local ordinances", "statutes of the Commonwealth
of Pennsylvania", and/or "pertinent provisions of the Pennsylvania Vehicle Code" Defendants
allegedly violated.
21. With further regard to paragraphs 9h and 1 of Plaintiff's Amended Complaint,
Plaintiff has further compounded the problem and caused said paragraphs to be even more
objectionable by adding the phrase "including but not limited to".
4
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22. Based upon Plaintiff's failure to comply with the well-established, clear pleading
requirements in this Commonwealth, Defendants are precluded from even beginning to attempt to
frame a proper Answer to said allegations, and they are prejudiced by being precluded from being
able to prepare a proper defense to said allegations.
23. The aforesaid improper allegations set forth in paragraphs 9c, d, hand 1 of
Plaintiff's Amended Complaint severely prejudice Defendants in that, if permitted to remain in the
Amended Complaint, Plaintiff would have the opportunity to amend the Amended Complaint and
introduce new causes of action after the applicable statute of limitations has expired. See, Conner
v. AUel!:heny General Hospital, 501 Pa. 306,461 A.2d 600 (1983), and its progeny.
WHEREFORE, Defendants respectfully request the Court to sustain their Preliminary
Objections in the Nature of a Motion to Strike paragraphs 9c, d, hand 1 of Plaintiff's Amended
Complaint.
Respectfully Submitted,
Peters & Wasilefski
Thomas A. La
Attorney lD # 26
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
By:
""Or . ~ fJ.axJ
Attorney for Defendants,
Charles Etherton, Jr. and Cressler Trucking
5
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a tme and correct copy of the foregoing Defendants'
Preliminary Objections to Plaintiff's Amended Complaint, has been served on all parties of
interest by placing the same in the United States mail, first-class postage pre-paid, at Harrisburg,
Pennsylvania on this 7"' day of June, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spmce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
IY)G.^?; ~~
KRAFT & KRAFT, P.C,
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
vs.
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
,
'1:1;
Attorney for Plaintiff(s)
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION AT LAW
NO, 00-2672
AMENDED CIVIL ACTION COMPLAINT
"NOTICE"
"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
warned that if you fail to do so the case
may proceed without you and a judgment may
be entered against you by the court without
further notice for any money claimed in the
complaint or for any other claim or relief
requested by the plaintiff. you may lose
money or property or other rights important
to you.
"YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Courthouse, 4th Floor
1 Courthouse Square
Carlisle, PA 17013
"AVISQI'
"Le han demandado a usted en la corte.
Si usted quiere defenderse de este demanda.
expuestas en las paginas siguientes, ustec
tiene veinte (20) dias de plazo al partir de
la fecha de la demands y la notification.
Hace falta asentar una comparencia escrita c
en persona 0 con un aboqado y entregar a 1.=
corte en forma escrita sus defensas 0 SUE
objeciones alas demandas en contra de 51..
persona. Sea avisado que si usted no BE
defiende, la corte tomara medidas y puedE
continuar la demanda en contra suya sin previc
aviso 0 notification. Ademas, la corte puedE
decidir a favor dei demandante y requiere quE
usted cumpla con todas las provisiones de estE
demanda. Usted puede perder dinero 0 su"
propiedades U ostros derechos importantes parE
usted.
"LLEVE ESTA DEMANDA A UN ABOGADC
lMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NC
TIENE EL DINERO SUFICIENTE DE PAGAR TAl
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONC
A LA OFIICINA CUYA DIRECCION SE ENCUENTRl
ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL."
,
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No, 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
NO, 00-2672
AMENDED CIVIL ACTION COMPLAINT
1. The Plaintiff, Richard A. Caban, is an adult
individual residing at 146 W. High Street, Carlisle, PA 17013.
2. The Defendant, Charles Etherton, Jr., is an adult
individual who, at all times material hereto, resided at the above
address.
3, The Defendant, Cressler Trucking, Inc., (hereinafter
referred to as "Cressler") is a business entity organized and
existing under and by virtue of the statutes of the Commonwealth of
Pennsylvania, doing business in the Commonwealth of Pennsylvania,
with a principal place of business at the above address.
4. On or about May 21, 1999, Defendant, Cressler, owned
and/or possessed and by its agent, servant, workman and/or
employee, Charles Etherton, Jr., controlled and operated the 1995
Kenworth Tractor-Trailer motor vehicle involved in the accident
hereinafter more fully described.
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5. At all times material hereto, the vehicle of the
Defendant, Cressler was being operated by Defendant, Charles
Etherton, Jr., in his capacity as its agent, servant, workman
and/or employee, acting in the scope and course of his employment
with Cressler and in furtherance of its business.
6. On or about May 21, 1999 at 3:30pm, Plaintiff,
Richard A, Caban, was operating his bicycle in a easterly direction
on the shoulder of Ritner Highway, at or near its intersection with
Industrial Drive, both of which are public highways in Carlisle,
PA.
7. At the aforesaid time and place, defendant, Charles
Etherton, Jr., was operating the motor vehicle owned by defendant,
Cressler, in an easterly direction on Ritner Highway at or near its
intersection with Industrial Drive, Carlisle, PA.
8. At the aforesaid time and place, defendant, Charles
Etherton, Jr., acting as aforesaid, so negligently, carelessly and
recklessly operated said motor vehicle so as to cause it to crash
into plaintiff and plaintiff's bicycle, causing serious and
permanent injuries and other losses more fully set forth
hereinafter,
9, The negligence, recklessness, and carelessness of
the Defendants, jointly and severally consisted of the following:
a, Operating their motor vehicle at a high and
excessive rate of speed under the circumstances;
b. Failing to have their motor vehicle under proper
and adequate control at the time of the collision;
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c. Careless and reckless operation of their motor
vehicle;
d, Failing to exercise due care and caution under
the circumstances;
e. Failing to keep a proper look out for traffic
ahead in violation of the Pennsylvania Motor Vehicle
Code;
f. Operating their vehicle in a reckless manner
without due regard for the rights, safety and position of
those lawfully upon the highway, one of whom was the
Plaintiff;
g. Failing to give proper and sufficient warning of
the approach and/or position of said vehicle;
h. Operating their vehicle in violation in the
applicable local ordinances and the statutes of the
Commonwealth of Pennsylvania, including, but not limited
to those statutes pertaining to careless driving;
i. Defendant, Cressler, failed to properly train
and/or instruct its agent, servant, workman and/or
employee, Defendant, Charles Etherton, Jr., in the safe
operation of the motor vehicle;
j. Defendant, Cressler, negligently entrusted the
motor vehicle to a person not qualified to operate said
vehicle;
1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code, including, but not limited to
those provisions pertaining to careless driving;
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o. Failed to maintain their vehicle(s) in
a safe and proper mechanical and operating condition.
10. Plaintiff, Richard A. Caban, is entitled to full
tort rights as set forth in the Amended Motor Vehicle Financial
Responsibility Act,
11. Plaintiff, Richard A. Caban, has received injuries
which have resulted in a permanent serious disfigurement and/or a
serious impairment of body functions.
12. This accident was caused solely by the carelessness,
negligence, and recklessness of the Defendants and was due in no
manner whatsoever to any act or failure to act of the part of the
Plaintiff,
COUNT I
RICHARD A. CABAN vs. CRESSLER TRUCKING, INC..
AND CHARLES ETHERTON, JR.
13. By reason of the negligence and carelessness of the
Defendants as hereinbefore alleged, Plaintiff suffered severe and
permanent injuries to his bones, muscles, tendons, ligaments,
discs, nerves, head, neck, shoulders, arms, elbows, back, chest,
stomach, legs, knees and body including but not limited to: sprain
of right wrist, sprain of right knee, cervical sprain and strain,
lumbosacral strain and sprain and internal derangement of his left
shoulder.
Plaintiff suffered internal injuries of an unknown
nature.
He suffered severe and permanent aches, pains, mental
anxiety and anguish, severe shock to his entire nervous system and
other injuries and/or aggravation of pre-existing injuries, the
full extent of which is not yet known. He has in the past and will
in the future undergo severe pain and suffering as a result of
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which He has in the past and will in the future be unable to attend
to his usual activities. The Plaintiff believes and therefore
avers that his injuries are serious and permanent in nature.
14. As a further result of this accident, Plaintiff has
suffered severe and permanent physical pain, mental anguish and
humiliation and may continue to suffer same for an indefinite time
in the future, all to his great detriment and loss.
15. As a result of the within action, Plaintiff has
incurred and will in the future incur expenses in the treatment of
his injuries.
16. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has sustained a loss of earnings
and earning capacity in the past and will sustain such losses in
the future, to his great financial loss and detriment.
17. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has been obliged to spend large
sums of money for medicine, medical care and attention in an effort
to cure his aforesaid injuries and may be obliged to spend
additional sums of them for the same purposes in the future, to his
great financial loss and detriment.
18. As a direct and reasonable result of the accident
aforementioned, Plaintiff has or may hereinafter incur other
financial expenses or losses which do or may exceed amounts to
which he may otherwise be entitled to recover pursuant to the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.S,A, S1111 et seq,
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WHEREFORE, plaintiff, Richard A. Caban, demands judgement
against the defendants, Cressler Trucking, Inc. and Charles
Etherton, Jr., jointly and severally, in a sum in excess of twenty-
five thousand dollars ($25,000.00), plus costs, interests and
damages for delay.
COUNT II
RICHARD A. CABAN vs. CRESSLER TRUCKING. INC.
(FIRST PARTY BENEFITS)
19. Paragraphs 1 through 18 are incorporated herein as
though the same were here set forth at length.
20, On or about May 21, 1999, and for some time prior
thereto, defendant, Cressler, was a self-insured entity under the
terms of which it provided first party benefits in favor of the
Pennsylvania
Motor
Vehicle
Financial
Responsibility
Law
(hereinafter referred to as "PMVFRL"), 75 Pa.C.S.A. Sl70l, et. seq.
said policy of insurance being in full force and effect at all time
material hereto.
2l. On or about May 21, 1999, plaintiff, Richard A,
Caban, sustained bodily injuries in an accident arising out of the
maintenance or use of a motor vehicle as defined in the aforesaid
PMVFRL.
22. Pursuant to PMVFRL Sl7l3, (a.) (4) defendant
Cressler must provide first part benefits to plaintiff, Richard A.
Caban.
23. Subsequent to the aforesaid accident, plaintiff,
Richard A. Caban, applied for allowable expenses pursuant to and in
accordance with said PMVFRL.
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24. Following the accident, plaintiff, Richard A. Caban,
did from time to time thereafter submit to defendant, Cressler, in
writing the amount of allowable expenses incurred, including the
following which have not been paid:
Carlisle Hospital (ER) $408.00
RWC Corp. $220.00
Carlisle Imaging Associates $90.00
Carlisle Hospital $226.00
RWC Corp. $140.00
Carlisle Hospital $19,00
RWC Corp. $140.00
David C, Baker, MD $2,151.00
Penn's Wood Physical Therapy
Carlisle Hospital $130.00
Moffit, Pease and Lim(EKG) $30.00
Carlisle Hospital $4,256.02
Blue Mountain Anesthesia $1,040.00
West Shore EMS $42.30
Prescriptions $74,50
Wage Loss $8,846.25
25. As a result of the failure of defendant, Cressler,
to pay first party benefits, plaintiff, Richard A, Caban, has been
forced to incur attorney fees and legal expenses in an effort to
collect the amount that is now past due.
26. Plaintiff believes and therefore alleges that
defendant, Cressler, may refuse payment of other allowable expenses
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which become overdue after commencement of this suit and therefore,
seeks payment of same as they become due.
27, In accordance with the provisions of the PMVFRL,
S1701, et. seq., plaintiff is entitled to payment for the aforesaid
allowable expenses.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
COUNT III
RICHARD A. CABAN vs. CRESSLER TRUCKING. INC.
(BAD FAITH)
28. paragraphs 1 through 27 are incorporated herein as
though the same were here set forth at length.
29. 42 Pa. C.S.A. S8371 provides that an action arising
under an insurance policy may be brought by the insured if the
insurer has acted in bad faith towards the insured.
30. Defendant, Cressler, has violated this Act by
engaging in bad faith towards Richard A. Caban in the following
manner:
(a) representing that defendant, Cressler, provides,
as a self-insured, medical benefits and wage loss benefits when in
fact said promise was wholly illusory;
(b) purporting to offer medical coverage and/or wage
coverage when in fact, defendant, Cressler, had no intention of
providing medical coverage for Mr. Caban'S injuries;
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(c) denying plaintiff, Richard A. Caban, medical
benefits and/or wage loss benefits without a reasonable basis; (d)
denying plaintiff, Richard A. caban, medical benefits and/or wage
loss benefits with knowledge or reckless disregard that such denial
was without reasonable basis.
31. Plaintiff, Richard A. Caban, hereby requests damages
as provided in 58371 of said Act, including but not limited to the
following:
(a) interest in an amount of claim for the date the
claim was made to the amount of interest plus 3%;
(b) punitive damages against defendant, Cressler;
(c) court costs and attorneys fees against defendant,
Cressler.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plUS costs, interests, attorney fees and damages for delay
as provided by law.
COUNT IV
RICHARD A. CABAN vs. CRESSLER TRUCKING. INC.
(UNFAIR TRADE PRACTICES)
32. Paragraphs 1 through 31 are incorporated herein as
though the same were here set forth at length.
33. The purpose of the Unfair Trade Practices and
Consumer protection Law, codified at 73 P.S. 5201-2, et seq., is to
"benefit the public at large by eradicating among other things,
unfair or deceptive business practices,"
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34. Defendant, Cressler, has violated said act by
engaging in unfair acts and/or deceptive practices.
35. Such unfair acts and/or deceptive practices include,
but are not limited to:
(a) representing the defendant Cressler provides as
a self-insured, medical benefits and/or wage loss benefits to
Richard A. Caban, when in fact said promise was wholly illusory;
(b) purporting to offer medical coverage and/or wage
coverage when in fact, defendant, Cressler, had no intention of
providing medical coverage for Mr. Caban's injuries;
(c) engaging in other fraudulent conduct which
created a likelihood of confusion or misunderstanding to plaintiff,
Richard A. Caban.
36. 73 P,S. ~201-9.2 specifically provides for private
actions to be brought for violations of said Act, including actions
against insurance carriers and/or self-insured entities,
37. Due to violations of said Act, plaintiff, Richard A.
Caban, is rightfully entitled to three times his actual damages
sustained as provided in 73 P.S. ~201-9.2, in addition to such
additional relief as this Honorable Court deems necessary or
proper.
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WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law,
KRAFT & KRAFT, P.C.
BY:
James M. DeSanto, Esquire
Attorney for Plaintiff
Dated:
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VERIFICATION
I, Richard Caban, do hereby verify that I am the Plaintiff in the foregoing
action; that the attached civil Action is based upon the information which I
have furnished to my counsel and information which has been gathered by my
counsel in the preparation of the lawsuit. The language of the civil Action is
that of my counsel and is not mine. I have read the civil Action and to the
extent that the information therein is based upon information I have given
counsel, it is true and correct to the best of my knowledge, information and
belief. To the extent that the contents of the civil Action are that of
counsel, I have relied upon counsel in making this Verification. I understanc
that false statements made herein are made subject to the penalties of 18 Pa.
C.S.A. section 4904 relating to unsworn falsifications to authorities.
Dated: 5 kS/CD
tJJ;{.WQ4-
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
UG 2 8 2000tIJ
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Attorney for Plaintiff(s)
RICHARD A. CABAN
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
9/.0 1'd-
NO. 00-20/6 CIVIL TERM
BRIEF IN SUPPORT OF PLAINTIFF'S ANSWERS TO
PRELIMINARY OBJECTIONS OF DEFENDANTS
I. PROCEDURAL HISTORY
Defendants' have filed Preliminary Objections to Plaintiff's
Second Amended Complaint. Plaintiff has filed an Answer to those
Preliminary Objections and this brief is in support of those
answers,
II. FACTUAL HISTORY
On or about May 21, 1999, at approximately 3:30 p.m.,
Plaintiff, Richard Caban, was operating his bicycle in an easterly
direction on the shoulder of Ritner Highway, at or near its
intersection with Industrial Drive.
On the aforesaid date and
time, Defendant, Charles Etherton, Jr., was operating a tractor
trailer owned by Defendant, Cressler Trucking, Inc., in an easterly
direction on Ritner Highway.
As the Defendant, Etherton, was
operating said tractor trailer, he failed to notice a vehicle
stopped ahead of him waiting to make a left turn. He locked up his
brakes and swerved to the right to avoid hitting the stopped
vehicle and instead struck the Plaintiff and his bicycle, causing
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personal injuries and property damages which are the subject of
this lawsuit. As a result of the accident, Defendant, Etherton
received a traffic citation for careless driving.
III. ARGUMENT
A. DO PARAGRAPHS 9C. 9D. 9H AND 9L CONSTITUTE IMPROPER
GENERAL AVERMENTS OF NEGLIGENCE?
The Defendants have filed Preliminary Objections to
Plaintiff's Second Amended Complaint alleging that paragraphs 9c,
9d, 9h and 91 constitute improper general averments of negligence
and fail to comply with Pa.R.C.P. 1019 (a).
The law in the Commonwealth of Pennsylvania is clear that lilt
is not the function of the Complaint to be an all inclusive
narrative of events underlying the claim. A Plaintiff need only
plead those material facts necessary to sustain a recovery which at
the same time enables the Defendant to defend. General State
Authoritv v. Laurie and Green. 24 Pa. Cmwlth 407,356 A.2d 851
(1976). The pleading should define the issues and give notice to
the opposing party of the claim against which he would be required
to defend, Department of Transportation v. Shipley Humble Oil
Company, 29 Pa. Cmwlth, 171,370 A.2d 438 (1977). A Motion for a
more specific pleading is appropriate only where the Complaint does
not adequately inform the Defendant of the issues he must answer or
meet at trial. c09PO v. Trusio 32 Fayette Co. L. J. 120 (1969);
Goodrich-Amram 2d 1017(b):9.
As the court stated in Commonwealth v. city of Jeanette. 9 Pa.
Cmwlth. 306, 308, 305 A.2d 774 (1973), "...a pleading should be
sufficiently specific so as to enable Defendant to prepare his
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defense." Certainly, the recognized Rule is that a more specific
Complaint will not be Ordered to develop matters which are
essentially evidentiary. Niles v. Carl 61 D. & C. 2d 272 (1973);
Goodrich-Amram 2d 1017(b):9.
Furthermore, all averments of the Complaint must be considered
together and appraised in light of the nature of the case to
determine whether the Complaint is sufficiently specific. Hock v.
L,B. Smith. Inc. 69 D. & C. 2d 420 (1974). The court has broad
discretion in ruling on a Preliminary Objection in the nature of a
Motion for a specific pleading and in determining the amount of
detail that must be averred. Toth v. Glessner 16 D. & C. 3rd 338
(1979) .
Unquestionably a party is permitted considerable latitude in
pleading further acts of which he or she has no knowledge,
particularly if such facts are within the knowledge of the
opponent. Line Lexinaton Lumber and Mill Work Company v.
PennsYlvania Publishina Corporation. 451 Pa. 154, 301 A.2d 684
(1984); Marchesini v. C.B.M. Coal Company. 61 Luz. L. Reg. 51
(1970); Goodrich-Amram 2d 1019: 1. A more specific Complaint will
not be ordered where the information is as well known to the
Defendant as to the Plaintiff. Martin Excavatina Company v.
Buntina. 62 Lanc. L. Rev. 155 (1969).
Finally, it is a well-settled principle that general
allegations of negligence are not subject to objection if
supported by specific charges. Duchess Underwear Company v. Swain
Manufacturina Com-panv 75 D. & C. 185 (1950); McCollouah v.
Harrisbura Polyclinic Hospital. 58 D. & C. 2d 125 (1972). When
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considering the sufficiency of a single paragraph the Court must
consider the averments of other paragraphs dealing with the same
subject matter. Duchess Underwear Companv v. Swain Manufacturina
Companv. supra: McCollouah v. Harrisbura Pol vclinic Hospital.
supra. Pennsylvania rule of civil procedure 1019(a) states that
the material facts on which a cause of action or defense is based
need only be pleaded in "summary form". It is important to
remember that since it is often difficult to draw the line between
an allegation of fact and conclusion of law, Pennsylvania Rule of
civil Procedure 1019(a) allows conclusions of law to be treated as
"harmless surplusage" to be ignored by the opponent in preparing
the responsive pleading. Goodrich-Amram 2d 1019 (a): 1; also see:
perrv v. Lopatofskv 76 Luz. L. R. 89 (1986).
The defendants rely upon Connor v. Alleahenv General Hospital.
501 PA. 306, 461 A. 2d 600 (1983) and its progeny to support their
allegations of lack of specificity. However, a review of these
cases reveals that the more recent progeny of Connor set forth law
favorable to the Plaintiff, while the remaining cases are
distinguishable from the instant matter.
For example, in Miller v. Milton S. Hershev Medical Center 106
Dauph. Co. Rep. 342 (1986), the Court emphasized in pertinent part
as follows.
We discussed Connor in catina v. Communitv General
Osteopathic Hospital. 105 Dauph. 187 (1984), pointing out
that since the general allElgations of negligence
said "under the circumstances" and since previous
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paragraphs had detailed these, this was outside the
Connor admonition.
Initially, it is important to note that Connor and its progeny
all pertain to some form of the allegation that the defendant was
"otherwise negligent under the circumstances." Furthermore, Miller
v. Milton S. Hershev Medical Center. supra. and catina v. Communitv
General Osteopathic Hospital. supra. make clear that general
allegations of negligence "under the circumstances" are
sufficiently specific provided that previous paragraphs in the
Complaint detail such circumstances. Where the Complaint sets
forth in exhaustive detail the material facts, including specific
allegations of negligence, the Defendants' Preliminary Objections
to general paragraphs must be denied. An entire pleading must be
scrutinized, and in considering the sufficiency of the paragraph,
the Court must consider the averments of other paragraphs dealing
with the same subject matter. catina v. Community General
Osteopathic Hospital. supra at 187. As the Court in catina noted,
the plaintiff's general allegations of negligence refer to
circumstances already described in exhaustive detail in the
Complaint. "We reel the plaintiff's subparagraphs under attack
clearly relate to matters within the four corners of the Complaint
which mor~ than adequately puts the defendants on the notice of the
claim." catina v. Community General Osteopathic HospitaL supra at
189.
The Defendants, through their counsel, allege that they will
be severely prejudiced if the aforesaid paragraphs are permitted to
remain in Plaintiff's Second Amended Complaint and that said
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paragraphs fail to advise the Defendants of the specific acts of
commission or omission, which constitute the alleged negligence and
that this prevents them from forming a proper Answer to the Second
Amended Complaint. However, defense counsel fails to inform this
Court that they began an investigation of this accident
approximately three days following the accident, obtained a
recorded statement from the Plaintiff, took photographs of the
accident scene and obtained a copy of the police report. See
Exhibit "B" attached hereto.
They further fail to advise this
Court that Defendant, Etherton, received a traffic citation for
careless driving, the specific act of negligence outlined in
Plaintiff's Complaint.
In addition, even a cursory reading of Mr, Lang's letter of
April 14, 2000, attached hereto as Exhibit "C", reveals that Mr.
Lang and the Defendants are well aware of the issues that they must
meet at trial and have long been able to form a proper answer to
any complaint filed in this matter.
The Court in Hassler v. Saracena, 60 Dauph 237 (1949), stated
that Preliminary Objections should not be used to secure details of
which the objector has as much knowledge or more than his opponent.
Clearly, the Defendants in this matter have as much knowledge
or more than the Plaintiff and their Preliminary Objections should
be dismissed.
B. DOES PLAINTIFF LACK STANDING TO MAINTAIN A CLAIM PURSUANT
TO PMVFRL SECTION 1797 AND 1798?
At the time of this accident, Plaintiff did not own a motor
vehicle nor did he reside with a relative who owned a motor
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vehicle.
Therefore, his source of insurance flows from PMVFRL
Section 1713 (a) (4) which states:
"For a person who is not the occupant of a motor vehicle,
the policy on any motor vehicle involved in the accident."
Therefore, although he is not a "named insured", pursuant to
the maintenance or use of a motor vehicle.
See 75
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section 1713 he is an "insured",
Defense counsel cites williams v. Tuck, 397 Pa. Super. 213,
579 A.2d 1332 (1990) in support of his allegation that the
Plaintiff has no standing to maintain a claim for damages under
PMVFRL section 1797 and section 1798. However, Williams is totally
inapplicable to this case since the insurer in Williams was only
the insurer because it was designated to pay first party benefits
pursuant to the Pennsylvania Assigned Claims Plan. In fact, the
Court in Williams goes on to state as follows:
"The PMVFRL requires that every insurer which issues
motor vehicle liability insurance in Pennsylvania provide
coverage for first party benefits for all insureds for
specific losses resulting from injuries arising out of
Pa.C.S.A. S1711. section 1713 of PMVFRL creates the
following priority system to determine the source of
first party benefits for a person who suffers injury
arising out of the maintenance or use of a motor vehicle:
(1) for a named insured, the policy on which
he is the named insured.
(2) for an insured, the policy covering the
insured.
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;
(3) for the occupants of an insured motor
vehicle, the policy on that motor vehicle.
(4) for a person who is not the occupant of a
motor vehicle, the policy on any motor vehicle
involved in the accident....
Where an insurer fails to pay first party benefits
required under this subchapter to an eligible claimant,
attorney's fees may be recoverable under Pa. C.S. S1798".
In addition, defense counsel cites Per sun v. Federal Kemper,
21 D. & C. 4th 296 (1993) in support of his argument that the
recovery of the damages pursuant to PMVFRL section 1797 are only
available where an insured is seeking first party benefits from
insurer and files an appeal from the decision of a peer review
organization to the Court of Common Pleas.
However, I?ersun states just the opposite. The Court in persun
stated as follows:
"We direct our attention to section 1797 (b)( 4). A strict
reading of this section would result in Court appeals
only when a insurance company refuses to pay medical
bills and does not hire a P.R.O. to review. The
insurance department issued regulations which provide
that an insured or healthcare provider may appeal to the
Courts.
31
P'a.
Code section
69.52(m)
states:
"upon
determination of reconsideration by a P.R.O., the
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insurer,
provider,
or
insured
may
appeal
the
determination to the Courts."
Section 1997 (b) (6) addresses relief awarded. When this
section is read without reference to 31 Pa. Code section
69,52(m), (b) (6) could be interpreted as not providing
relief when an insurance company does pay a P.R.C. to
review an insurance company's refusal to pay medical
expenses.
However, as discussed above, 31 Pa. Code
Section 69.52 (m) specifically provides that an insured or
medical care provider may appeal to the Courts even when
an insurance company does utilize peer review.
Since
there is a right to an appeal when a peer review is
utilized, the relief set forth in section 1797 (b) (6) is
appropriate.
We will reconsider our opinion of February 4, 1993, as to
attorney's fees.
In that opinion we dismissed
Plaintiffs' claim for attorney's fees. At this time, we
will reinstate Plaintiffs' claim for attorney's fees in
light of the above discussion.
In this matter, Defendant, Cressle.r Trucking, Inc., has
refused and/or failed to pay medical bills without forwarding them
to a P.R.C. Therefore, pur$uant to PMVFRL section 1797 and the
Persun case, Plaintiff certainlY may recover damages due to
Defendant's failure to pay medical bills.
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IV. CONCLUSION
Based upon the law of this Commonwealth as applied to the
facts of this matter, it is patently clear that the Defendants'
Preliminary Objections to Plaintiff's Second Amended Complaint
should be dismissed with prejudice,
KRAFT & KRAFT, P.C.
Dated: 7S ks-l DO
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mes M. DeSanto, Esquire
torney for Plaintiff
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442 Attorney for Plaintiff(s)
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN : COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
.
.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
.
.
NO.
s~;r.).
00-2~ CIVIL TERM
PLAINTIFF'S ANSWERS TO PRELIMINARY OBJECTIONS OF DEFENDANTS
1. Admitted.
2. Admi tted.
3. Admitted.
4. It is admitted that Defendants' filed Preliminary
Obj ections to Plaintiff's Amended Complaint on or about June 8,
2000.
It is denied that Defendants were compelled to file said
Preliminary Obj ections.
It is further denied that there were
defects in said Amended Complaint.
5. It is admitted that Plaintiff sent a copy of the
Second Amended Complaint to defense counsel via fax on July 19,
2000.
By way of further answer, Plaintiff's Second Amended
Complaint was originally served upon counsel on or about June 28,
2000 by first class U.S. mail. A true and correct copy of the
enclosure letter is attached hereto as Exhibit "A".
6. Admitted that Plaintiff withdrew counts three and
four from his Amended Complaint.
It is further admitted that
Plaintiff did not withdraw paragraphs 9c, 9d, 9h and 91.
7 . Admitted.
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8. It is denied that the Defendants are compelled to
file another set of Preliminary Objections .
9. It is admitted that in the Second Amended Complaint
Plaintiff contends that an accident occurred involving the
Plaintiff and the Defendants' tractor trailer while both were
traveling in an easterly direction on Ritner Highway, at or near
its intersection with Industrial Drive, in Carlisle, Pennsylvania
on May 21, 1999. By way of further answer, Plaintiff stated that
he was operating his bicycle on the shoulder of Ritner Highway and
the Defendant, Charles Etherton, Jr., operated said tractor trailer
in a negligent, careless and reckless manner so as to cause it
crash into Plaintiff and his bicycle.
10. No response required.
11. Admitted.
12. It is denied that the aforesaid paragraphs of
Plaintiff's Second Amended Complaint fail to conform to law and the
rules of court. It is further denied that said allegations are
vague and do not state material facts or that they are impertinent.
To the contrary, said allegations clearly state that the Defendants
violated the statutes of the Commonwealth of Pennsylvania and the
provisions of the Pennsylvania Motor Vehicle Code pertaining to
careless driving.
13. Denied. By way of further answer, said allegations
clearly state that the Defendants violated the statutes of the
Commonwealth of Pennsylvania and the provisions of the Pennsylvania
Motor Vehicle Code pertaining to careless driving.
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14. Denied. By way of further answer, see the answers
to #12 and #13 above. In addition, Defendant, Charles Etherton,
Jr., received a traffic citation for careless driving as a result
of this accident.
15. Denied.
To
the
contrary,
the
aforesaid
subparagraphs
contain
sufficient
specificity
pursuant
to
Pennsylvania Rule of civil Procedure 1019(a).
16. Denied. As previously stated, Plaintiff has alleged
that the Defendants violated the statutes of the Commonwealth of
Pennsylvania and/or the provisions of the Pennsylvania Motor
Vehicle Code pertaining to careless driving. Furthermore, a party
does not need to specifically plead the statute ostensibly
violated.
Commonwealth of Pennsvlvania v. Shiolev Humble oil
Comoanv, 29 Pa.Cmwlth. 171, 370 A.2d 438 (1977).
17. Denied.
18. Denied. By way of further answer, Defendants have
been well aware of the issues and allegations in this matter since
the date of this accident and Defendant, Charles Etherton, Jr.,
received a traffic citation as a result of this accident.
Furthermore, the Defendants commenced an investigation three days
after this accident and defense counsel and Defendants have been
well informed and are well aware and clearly able to prepare a
proper defense to said allegations. True and correct copies of
said investigation and a letter from defense counsel, dated April
14, 2000, are attached hereto as Exhibits "B" and "C",
respectively.
II,
,,-
19. Denied. The applicable statute of limitations in
this matter does not expire until May 21, 2001.
20. No response is required.
21. Admitted.
22. Denied. Pursuant to PMVFRL section 1713, Plaintiff
is an "insured" under the insurance policy of Defendant, Cressler
Trucking.
23. Denied. To the contrary, the Plaintiff has standing
to maintain a claim pursuant to PMVFRL section 1797 since
Defendant, Cressler Trucking, a self-insured has failed to pay
medical bills and did not hire a peer review organization to review
those medical bills.
24. Denied.
WHEREFORE, Plaintiff, Richard A. Caban, respectfully requests
that this Court dismiss the Preliminary Objections of Defendants.
KRAFT & KRAFT, P.C.
BY
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Dated:
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DeSanto, Esquire
for Plaintiff
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VERIFICATION
James M. DeSanto, Esquire, hereby states that he is the
attorney for the Plaintiff(s) in this action and verifies that the
statements made in the foregoing pleading are true and correct to
the best of his knowledge, information and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa. C.S. S4904 relating to
unsworn falsification to authorities.
Dated:
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
NO. 00-2676 CIVIL TERM
CERTIFICATE OF SERVICE
I, James M. DeSanto, Esquire do hereby certify that a true and
correct copy of Plaintiff's Response to Defendants' Preliminary
Objections has been served upon the following by first class mail
on August 25, 2000.
Thomas A. Lang, Esquire
2931 N. Front Street
Harrisburg, PA 17110
DATE:
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ames M. DeSanto, Esquire
ttorney for Plaintiff
.II
LA W OFFICES
KRAFT & KRAFT, P. C.
PAUL KJ<<FT
PRESTON E. KlIAFT-I943-I975
STEVEN KOPWVE
MARTIN J. KlLSTEIN
ROBERT E. CHERWONY
JAMES M. DeSANTO
131I SPRUCE STREET
PHILADElPHIA, PA. 19107
(215)546-5100
Fax: (215)732-3468
June 28, 2000
~urt Long, Prothonotary of Cumberland County
.Courthouse Building
1 Courthouse Square
Carlisle, PA 17013
Re: RICHARD A. CABAN
vs. CHARLES ETHERTON, JR. and
CRESSLER TRUCKING, INC.
No. 00-2672
Dear Mr. Long:
Enclosed please find original and two copies of Second Amended
.civil Action Complaint for filing in the above matter. Kindly file
the original and return the time-stamped copies in the enclosed
envelope.
If you have any questions, please do not hesitate to contact
the undersigned,
Very truly yours,
KRAFT & KRAFT, P.C.
~.s ~ ~to~ -
J'MD/kl
Enclosure
.cc: Thomas A. Lang, Esquire
2931 N. Front Street
Harrisburg, PA 17110
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NVESTIGATIONS
Servicing PA, NY, MD, OH, NJ, VA, WV, FL, DE & RI
Vishnesky & Associates
_P.O. Box 129. Marysville, Pennsylvania 17053
(717) 957-3900 . 1-800-745-8236
FAX (717) 957-4218 I FAX 1-800-379-7891
INVESTIGATION REPORT
Richard Caban
146 W. High Street
Carlisle, Pennsylvania 17013
Case No: 08CTI08-4643-99
May 27, 1999
Assiqnment
On May 24, 1999, Connie Shumaker of Cressler Trucking, requested
an investigation on Richard Caban. The results are as follows:
Synopsis
A recorded statement was received from the Subject and Edward
Smith of Bike-Tech and various interviews were conducted.
Monday, May 24, 1999
The investigator made several attempts to meet with the Subject
for an interview but met with negative results as the Subject was
not at his residence. The investigator left messages on the
Subject's answering machine_ The Subject called the investigator
and scheduled the interview for May 25, 1999 at 1500 hours. The
Subject stated that his bike was.Jotaled. His pike was at a bike
shop in Camp Hill but did not know the name of the shop.
Tuesday, May 25, 1999
The investigator met with Steve,_manager of Holmes Fitness Center
in Camp Hill. The Subject's bike was present and had not been
looked at for damage.
The investigator met with the Subject and obtained a taped
interview. The investigator and the Subject proceeded to the
accident scene and the investigator obtained photographs of the
site. The investigator conducted fie1.dinterviews a.tKruger' s
Party Shop at 1625 Ritner Highway, Carlisle. No witnesses were
obtained; only 911 calls were made from the pusiness.
.. PlAINTIFF'S
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Case No: 08CTI08-4643-99
May 27, 1999
The Subject stated to the investigator that attorneys have been
calling since the report of the accident appeared in the Sentinel
Newspaper on May 24, 1999. The Subject stated he only wants his
bike replaced, medical bills paid, loss wages for two days and
maybe a little extra for all the bruises and pain.
The investigator obtained a recorded statement from Edward K.
Smith, the owner of Bike-Tek.
The investigator conducted a field interview at the Carlisle
Police Department. The accident report was not finalized.
The investigator met with Steve, manager of Holmes Bike Shop, a
second time and obtained photographs of the bike repair bill to
be completed by May 27, 1999.
File Report 1
Lr\CTI4643.1\CTI 1999
Inv#s: 500
736
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NOTIFICATION OF ACCIDENT
CARLISLE. POLICE DEPARTMENT
53 West South Street.. Carlisle, Pennsylvania 17013
Date
~-;;{/- 9?
,
Phone: 243.5252
~ REPORTABLE
NOTICE IS HEREBY GIVEN THAT THE ACCIDENT IDENTIFIED BELOW IS BEING INVESTIGATED BY THE CARLISLE POLICE
AND THAT THE COMMONWEALTH OF PENNSYLVANIA POLICE ACCIDENT REPORT Will BE SUBMITTED AS PRESCRIBED
BY SECTION 3746 (C) OF THE VEHICLE CODE.
o NON-REPORTABLE
NOTICE IS HEREBY GIVEN THAT THE ACCIDENT IDENTIFIED BELOW IS NOT BEING INVESTIGATED BY THE CARLISLE
POLICE AND THAT THE COMMONWEALTH OF PENNSYLVANIA POLICE ACCIDENT REPORT WIU NOT BE SUBMITTED AS .'..
. PRESCRIBED BY SECTION 3746 (C) OF THE VE';/~E CO. DE.. 1-- jJ ,~ I .... . .
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RECORDED STATEMENT
OF
RICHARD CABAN
Case No: 08CTI08-4643-99
May 27, 1999
This is
1999 at
Richard
steven Urban from A-P.I. Investigations. It is May 25,
approximately 3:35 in the afternoon. I am meeting with
Caban.
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SU: Richard, do I have persmission to tape record this
conversation?
3. RC: Yes, you do.
4. SU: Richard, can you tell me what happened on May 21
5. regarding the accident with your bicycle?
6. RC: I was getting out of work 3:30, riding down Ritner
7. Highway, getting up to a place called Kruger's Party
8. Goods. I was about 50 feet from the place. I see a lady
9. parked in front of me making a left hand turn. I said I
10. better be smart and move over on this lane that I'm
11. riding cause it was a nice full five foot there lane which
12. doesn't involve traffic. So I'm riding along. I decide
13. to move over to the left lane. The next thing I hear
14. brakes squealing which was this truck put about an 80
15. foot skid mark from the point where he skid. He decided
16. not to hit the truck, take me out. So he carne passed the
17. lady up took me and his truck out in some field somewhere.
18. And that's about all I could explain cause the only thing
19. I seen was the truck tire in my face and that's all I
20. explain after after that.
21. SU: So the tractor trailer with rig was traveling towards
22. you instead of behind you?
23. RC: Oh, he was behind, but I couldn't see because I was
24. ahead of him. He had to have seen me. He said he didn't
_3_'_'_
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Page 2
Case No: 08CTI08-4643-99
May 27, 1999
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
see me til the last second. I said I don't know how you
couldn't see me until the last second. Cause I was that
far ahead of him. When he braked he must have been doing
at least 70 miles an hour cause he skid, his skid, he
decided to avoid the lady in front of him cause he knew
he was gonna hit her. So he decided just to cut off the
road and take with with him. You know, that's about all
I could see. You can't say he didn't see her and he
couldn't see me. Cause I seen her blinking well before
he even caused that accident, you know.
35.
36.
SU: So the car. ..was this at an intersection where there
was a traffic light?
37. RC: No. It's like just out in the open road and the lady
38. was making a left to get into Kruger's Party Goods.
39. SU: So you originally were in the left lane also behind
40. her and you decided to go left of that vehicle.
41.
42.
43.
RC: No, I wasn't in the traffic lane.
lane and then there's a four foot, five
the traffic.
There's a traffic
foot lane next to
44. SU: To the right?
45. RC: Yes.
46. SU: Okay, past the fog line, the little white line on the
47. right side?
48.
49.
50.
51.
Yeah, I was on that side of the white line, yeah.
I moved all the way over and thank God I did cause
would have been on that white line, I probably be
today.
RC:
then
if I
dead
52. SU: Earlier you mentioned you moved to the left. You
53. actually moved to the right?
54. RC: To the right, correct. If I went to the left, it
55. would not be too bright, you'd be riding in traffic.
56. SU: What injuries did you incur during this accident?
57. RC: At first it was just my wrist and the next day
58. my whole body, shoulder, legs, hips, wrist, under here.
59. Numerous amounts. I went to the hospital last Saturday
60. morning. Last Saturday afternoon when I got up I Just
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Page 3
Case No: 08CTI08-4643-99
May 27, 1999
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77 .
78.
79.
80.
81.
82.
83.
84.
85.
seemed that I was in bad shape. The doctor took me. He
gave me x-rays and checked for any parts of my body. He
says he was surprised nothing to my chest or my back. I
was very lucky. They said I don't know how the hell you
got away with it but. They put me on Perkoset, gave me
x-rays, took about two hours to give me all these exams.
He gave me two days off from work. He said with all
those muscle injuries, believe me, you're gonna feel
them. He wasn't kidding.
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SU: What damage was there to your bicycle?
RC: To my bicycle right now is totaled. The bike
suffered a frame. The frames bent, the fork is bent,
which is basically the whole bike. Believe it or not,
nothing happened to the wheels. I guess they must have
bounced, but when they landed, it was. . I just pushed
everything into place. The seat was crushed. It was
as piece of s..t of really.
SU: What is the color of your bike?
RC: Purple. A purple bike.
SU: Where did the tractor trailer rig hit your bicycle?
RC: He probably hit it from behind. You know, when he
went passed me the front went passed me cause his front
tire was right in my face. And as he was goin' with me
I guess his back tire hit my tire, sent me and the bike
flying.
86. SU: So then when you went flying, did you fly. . .did you
87. travel to the right even further into the yard?
88. RC: Into the grass, into the field. I went about 20
89. feet from where I was standing. Through the air. The
90. bicycle wound up near the truck. I wound up away from the
91. truck. So he sent me for a good ride.
92. SU: What police department responded to your accident?
93. RC: Carlisle.
94. SU: Was there anybody present that presented you with
95. their name and address as a witness?
96. RC: No, but there was about seven or eight witnesses from
Page 4
Case No: 08CTI08-4643-99
May 27, 1999
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
the Kruger's Party Goods. When I got up I was dazed and
all shook and scared on top of that but there was about
five, six people there with walkie-talkies. They were on
phones, they had ambulances, police, everybody was coming
there. They thought I was dead.
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SU: When the ambulance came, did they request you to go
with them?
RC: Yeah, they wanted me to go with.
SU: And why did you not go with them at that time?
RC: Cause at that time the only thing I felt was the
wrist injury. My wrist wasn't broke or nothing so there
was no need for me, you know. I felt the wrist injury.
But they told you your blood pressure's like 220 and they
said man you ain't feeling pain now but wait til
tomorrow. But right now I feel no pain. I'm very angry.
I'm looking at my bike. It's my means of transportation.
I go to work with that. I ride around, you know, I'm
a big cyclist. I'm not one of these guys that rides
around the corner. I like to ride, you know.
116. SU: How did you get home from the accident?
117.
118.
119.
120.
121.
122.
123.
124.
RC: I was able to put the bike back together again and
slowly coasted home. Took it right into the bike shop
over here and got it examined. The guy said your frame's
shot. Then I says I'm gonna have to take it into a
Bianci dealer so the next day I called a Bianci dealer
which was close which was Camp Hill and took it in there.
They're gonna check it out for me but there's no need to
check it out. It's gone.
125. SU: Where in Carlisle did you take your bike to first?
126. RC: Lou Bike-Tek.
127.
SU: Lou Bike-Tek? Where is that located?
128. RC: Lou is on Hanover. Bike-Tek it's called.
129. SU: When you go up to the square do you make a right?
130.
131.
RC: Yep, up to the square, make a right. It's on the
left hand side about two blocks down.
Page 5
Cas~ No: 08CTI08-4643-99
May 27, 1999
132. SU: Have you had any word from the bicycle shop in
133. Camp Hill yet?
134.
135.
136.
137.
RC: No, they told me Wednesday they'll be able
it checked and everything but they said we just
your bike. We qot customers we have to favor.
do what you got to do.
to have
checking
I said
138. SU: What year did you purchase your bike?
139.
140.
141.
142.
143.
144.
145.
RC: About, let me see, this is '99 probably about '95.
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RC: $659.00, something like that. It was over a $600.00
bike. I was telling the guy, you just ruined a $600.00
bike. He's looking at me. He said there's nothing wrong
the bike, man. The wheels and everything. I said you
can't drive a truck, don't tell me how to ride a bike.
146. SU: You're saying the bike was brand new in 1995?
147. RC: Yeah.
148. SU: Holmes Bicycle Shop is where your bike is located in
149. Camp Hill and they estimate the bike to be in the 1980's,
150. a late 1980's.
151. RC: Oh golly, I bought that bike in New York City. Let
152. me see if I can remember what the hell the name of the
153. shop is. 1980's. If it was 1980, this guy still had it
154. in his shop when I bought it, it wasn't 1980. I moved
155. out here, let me see, '95, '94 yeah, '95 I been out here
156. five years. That's when I came out here with the bike.
157. So there's no way. If the guy had it in his shop I don't
158. see how old it is. If the guy has it in his shop and it's
159. four years old, I bought it that year, you know what I
160. mean. That I can't help.
161. SU: So the bike was never used prior to you purchasing
162. it that you're aware of?
163. RC: Correct.
164. SU: Do you have any receipts for purchasing the bike?
165. RC: When I moved out here from New York, I said I bought
Page 6
Case No: 08CTI08-4643-99
May 27, 1999
166.
167.
168.
169.
170.
171.
172 .
173.
174.
175.
176.
177 .
178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196 .
197.
198.
199.
200.
201.
202.
203.
204.
205.
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what I needed. My books, my bike and the stuff I got here
was given to me so I really...
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SU: Where do you work now?
RC: I work for the Clean Team out of a building called
Ross Manufacturing.
SU; How long have you worked there?
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RC: I worked in the building itself over a year but
I worked with the Clean Team for about six months.
SU: You had made a statement over the phone with me
yesterday regarding the Carlisle Police saying they were
notifying the state Police. Can you recall that?
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RC: Yeah, well what happened was at the end there, the
police officer that was in charge of that accident from
Carlisle had finished writing up the report and everything
and then he told us to go over into the Kruger parking
area over there to be safe. We were standing over there.
He finished up the report. We had to sign the report and
he gave him a report, gave me a report, told him that he
had to come down, that he had to claim this as an accident
because I injured my wrist. Otherwise I don't know what
the hell he was gonna say to this guy. I asked him
if he was gonna give him a breatholizer test. He didn't
say anything. But then after he gives us all the
paperwork which was a big yellow green sheet that I have
over here, he states that it has to be declared an
accident because he hurt his wrist and he has to call the
state Police to come down here to take the measurements
and everything for that, for the skid marks and all that.
And I said I guess that's proper procedure, you know.
So that's about where I left it. I took my paper, went
over to my bike, tried to get it in some kind of a shape
to ride it home, since I'm only less than a mile from
here it was no problem to ride it into town. I took it
over to the shop.
SU; When you stated that you put your bike back
together again, did you wheels falloff?
RC: No. Everything was twisted apart. The seat was
was (inaudible). I don't even know how the seat got like
that. The handlebars were twisted, everything was
twisted. I tried to get it in position so I could
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Page 7
Case No: 08CTI08-4643-99
May 27, 1999
206. at 1east...once I got on it I could see the frame was
207. bent, the fork was bent and I says, man.
208. SU: So this happened on the 21st what were your two days
209. off?
210.
211.
212.
213.
214.
215.
216.
RC: Monday and Tuesday. Doctor prescribed some Perkoset
which I'm on right now to keep the pain at a minimum.
I'm probably gonna have to use some on the job. I do a
lot of mopping, a lot of stuff, a lot of work with my
hands and my shoulders and all that, lifting and all
that, so we'll see what happens. I been taking it easy
the last couple of days.
ll'
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217. SU: Yesterday on 5/24 of 99, I attempted to get in
218. touch with you for approximately five o'clock until
219. about 10:15 last night.
220.
221.
222.
223.
224.
225.
226.
RC: I was doing laundry yesterday. I took a big bag
of laundry to my buddy's house over here, the president's
house, I was doing laundry over there watching TV.
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SU: I have no further questions. Do you have anything
you would like to add?
RC: No really.
SU: Do I have your permission to turn the tape off?
227. RC: Yes.
Lc\CTI4643s.1\CTI 1999
.. ',I
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RECORDED STATEMENT
OF
EDWARD W. SMITH
Case No: 08CTI08-4643-99
May 27 , 1999
This is Steven Urban regarding the Richard A. Caban case. I am
meeting with Edward W. Smith of Bike-Tek, 1100B Newville Road,
Carlisle, PA. It is now 4:32 in the afternoon.
1. SD: Ed, do I have your permission to tape record this
2. conversation?
3. ES: Yes.
4. SD: Ed, do you recall Richard Caban bringing his Bianci
5. bike in here after the accident of 5/2l?
6. ES: Yes.
7. SD: What do you recall about the bicycle?
8. ES: That the fork is bent and the head to the top tube
9. and the down tube are bent also.
10. SU: Is the bike repairable in your opinion?
11. ES: No. It's totaled.
12. SU: Did you refer him to another bike shop?
13. ES: Yes Holmes. They sell Bianci. He wanted to replace
14. it with the same brand of bicycle.
15. SU: Okay, do I have permission to turn off the tape
16. rE?corder?
17. ES: Yes.
Lc\CTI4643s.~ICTI 1999
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NVESTIGATIONS
Servicing PA, NY, MD, OH, NJ, VA, WV, FL, DE & RI
Vishnesky & Associates
P.O. Box 129' Marysville, Pennsylvania 17053
(717) 957-3900 . 1.800-745-8236
FAX (717) 957-4218 I FAX 1-800-379.7891
INVESTIGATION REPORT
Richard Caban
146 W. High Street
Carlisle, Pennsylvania 17013
Case No: 08CTI08-4643-99
June 10, 1999
Assiqrunent
As part of the ongoing investigation on Richard Caban, the
following resulted:
Synopsis
The investigator picked up photographs and receipt from Holmes
Cycling & Fitness. The photographs were previously sent. The
receipt is enclosed.
Thursday, June 4, 1999
The investigator arrived at Holmes Cycling & Fitness Center, 2139
Market Street, Camp Hill, PA and was advised that the business
does not open until 1000 hours.
The investigator took the film for development.
The investigator returned to the cycling and fitness center and
conducted a field interview with Allen Holmes, owner, and
obtained the following information:
The Subject's bike frame was bent beyond repair. A replacement
(Bianchi Breva) cost $773.70. A receipt was obtained.
File Report 2
Lr\CTI4632.2\CTI 1999
Inv#s: 500
736
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~ HOLMES' CYCLING & FITNESS
2139 Market Street i
CAMP HILL, PENNSYLVANIA 17011 I
(717) 737-3461
CUSTOMER'S ORDER NO, I 'HONE IJ:~J, I
19 91
NAME ~,r ( q ISM\, I
ADDRESS I
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HOLMES' CYCLING &. FiTNESS
2139 Market Street
CAMP HILL. PENNSYLVANiA 17011
(717) 737.3461
CUSTOMER'S ORDER NO.
I PHONE
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PETERS & WASILEFSKI
ATTORNEYS AND COUNSELORS AT LAW
2931 NORTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17110-1280
WilLIAM J. PETERS
CHARLES E. WASIlEFSK\
DENNIS J. BONETTI
JOSEPH C. PHilLIPS
MICHAEL R. BONSHOCK
THOMAS A. lANG
PAMELA S. PARASCANOOLA
STEPHEN F. MOORE
JAMES A. GARVER
CARRIE L CARROll
SHEILA A. THURSTON
TELEPHONE (717) 238-7555
FAX (717) 238-7750
April 14, 2000
E-Mail Addresses:
pwlaw@desupernet.net
pwlaw@pwlegal.com
WEB SITE: www.pwlegal.com
James M. DeSanlo, Esquire
Kraft & Kraft, P.C.
1311 Spruce Streel
Philadelphia, PA 19107
Re: Your Client: Richard Caban
My Client: Cressler Trucking, Inc.
Date of Accident: 5/21/99
My File No: 1394-17
Dear Mr. DeSanto:
Please allow me to get straight to the issue. Mr. Caban's demand in the amount of $125,000.00 is
nothing shOll of absurd, unreasonable and completely unrealistic. If your client wanted to make a "good
faith" effort 10 try to resolve this maller it would have been reflected in a realistic selllement demand.
As far as liability is concerned, 1 believe that my client will garner some sympathy for the fact that
the vehicle in front of him stopped extremely suddenly without any advance notice. Although 1 obviously
recognize the requirement to maintain the assured clear distance ahead, I am confident that most lay people
today understand that such is not always practically possible in the "real world" given the conduct of others.
Nevertheless, a substantial question also exists regarding the conduct of Mr. Caban and whether he was
operating his bicycle lawfully and in accordance with the Motor Vehicle Code at the time of the accident. I
trust you are also aware of the fact that Ihere was no actual contact between the Cressler truck and Mr.
Caban on bis bicycle. The fact that he told everyone at the accident scene that he was okay and rode away
on his bike under his own power is also qnite telling.
Although Cressler Trucking is ready and willing to make every reasonable, good faith etlort to
negotiate with Mr. Caban to allempt to amicably resolve this matter, it is nol in the business of payiug
unjustified, exaggerated claims. Although Mr. Caban has come quite close to "scaring off" Cressler
Trucking from any further negotiations with his demand, I have been given authority of $10,000.00 to
eXlend to Mr. Caban to lay this matter to rest. I trust you will communicate this offer to Mr. Caban and that
you will thereafter respond with his position.
lIt a related maller, please be advised that Cressler Trucking remains unchanged in its position that
if it is going to be requested to pay any further medical bills or wage loss Mr. Caban will have to undergo
an independent medical examination so that an opinion can be rendered as to his whether any such ongoing
bills are reasonable and necessary.
T AL/mmk
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PlAINTIFF'S
EXHIBIT
C.
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
vs.
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
<:.1.,
Attorney for Plaintiff(s)
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION AT LAW
NO. 00-2672
AMENDED CIVIL ACTION COMPLAINT
"NOTICE"
"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
warned that if you fail to do so the case
may proceed without you and a judgment may
be entered against you by the court without
further notice for any money claimed in the
complaint or for any other claim or relief
requested by the plaintiff. you may lose
money or property or other rights important
to you.
"YOU SHOULD TAI<E THIS PAPER TO YOUR
LAWYER AT ONCE. II;' 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.
Court Administrator
Courthouse, 4th Floor
1 Courthouse Square
Carlisle, PA 17013
"AVISO"
IILe han demandado a usted en la corte.
si usted quiere defenderse de este demandas
expuestas en las paginas siguientes, usted
tiene veinte (20) dias de plazo al partir de
la fecha de la demands y la notification.
Haae falta asentar una comparencia escrita 0
en persona 0 con un abogado y entregar a la
corte en forma escrita sus defensas 0 sus
objeciones alas demandas en contra de au
persona. Sea avisado que 9i usted no se
defiende, la corte tomara medidas y puede
continuar la demanda en contra suya sin previa
aviso 0 notification. Ademas, la corte puede
decidir a favor dei demandante y requiere que
usted cumpla con todas las provisiones de esta
demanda. Usted puede perder dinero 0 sus
propiedades U ostros derechos import antes para
usted.
"LLEVE ESTA DEMANDA A UN ABOGADO
IMMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI NO
TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO
A LA OFIICINA CUYA DIRECCION SE ENCUENTRA
ESRITA ABAJO PARA AVERIGUAR PONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL."
KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
146 W. High Street
carlisle, PA 17013
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
NO. 00-2672
AMENDED CIVIL ACTION COMPLAINT
1. The Plaintiff, Richard A. Caban, is an adult
individual residing at 146 W. High Street, Carlisle, PA 17013,
2. The Defendant, Charles Etherton, Jr., is an adult
individual who, at all times material hereto, resided at the above
address.
3. The Defendant, Cressler Trucking, Inc., (hereinafter
referred to as "Cressler") is a business entity organized and
existing under and by virtue of the statutes of the Commonwealth of
Pennsylvania, doing business in the Commonwealth of Pennsylvania,
with a principal place of business at the above address.
4. On or about May 21, 1999, Defendant, Cressler, owned
and/or possessed and by its agent, servant, workman and/or
employee, Charles Etherton, Jr., controlled and operated the 1995
Kenworth Tractor-Trailer motor vehicle involved in the accident
hereinafter more fully described.
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5. At all times material hereto, the vehicle of the
Defendant, Cressler was being operated by Defendant, Charles
Etherton, Jr., in his capacity as its agent, servant, workman
and/or employee, acting in the scope and course of his employment
with Cressler and in furtherance of its business,
6. On or about May 21, 1999 at 3:30pm, Plaintiff,
Richard A. Caban, was operating his bicycle in a easterly direction
on the shoulder of Ritner Highway, at or near its intersection with
Industrial Drive, both of which are public highways in Carlisle,
PA.
7. At the aforesaid time and place, defendant, Charles
Etherton, Jr., was operating the motor vehicle owned by defendant,
Cressler, in an easterly direction on Ritner Highway at or near its
intersection with Industrial Drive, Carlisle, PA.
8. At the aforesaid time and place, defendant, Charles
Etherton, Jr., acting as aforesaid, so negligently, carelessly and
recklessly operated said motor vehicle so as to cause it to crash
into plaintiff and plaintiff's bicycle, causing serious and
permanent injuries and other losses more fully set forth
hereinafter.
9. The negligence, recklessness, and carelessness of
the Defendants, jointly and severally consisted of the following:
a. Operating their motor vehicle at a high and
excessive rate of speed under the circumstances;
b. Failing to have their motor vehicle under proper
and adequate control at the time of the COllision;
,
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c. Careless and reckless operation of their motor
vehicle;
d. Failing to exercise due care and caution under
the circumstances;
e. Failing to keep a proper look out for traffic
ahead in violation of the Pennsylvania Motor Vehicle
Code;
f. Operating their vehicle in a reckless manner
without due regard for the rights, safety and position of
those lawfully upon the highway, one of whom was the
Plaintiff;
g. Failing to give proper and sufficient warning of
the approach and/or position of said vehicle;
h. Operating their vehicle in violation in the
applicable local ordinances and the statutes of the
Commonwealth of Pennsylvania, including, but not limited
to those statutes pertaining to careless driving;
i. Defendant, Cressler, failed to properly train
and/or instruct its agent, servant, workman and/or
employee, Defendant, Charles Etherton, Jr., in the safe
operation of the motor vehicle;
j. Defendant, Cressler, negligently entrusted the
motor vehicle to a person not qualified to operate said
vehicle;
1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code, including, but not limited to
those provisions pertaining to careless driving;
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o. Failed to maintain their vehicle(s) in
a safe and proper mechanical and operating condition.
10. Plaintiff, Richard A. Caban, is entitled to full
tort rights as set forth in the Amended Motor Vehicle Financial
Responsibility Act.
11. Plaintiff, Richard A. Caban, has received injuries
which have resulted in a permanent serious disfigurement and/or a
serious impairment of body functions.
12. This accident was caused solely by the carelessness,
negligence, and recklessness of the Defendants and was due in no
manner whatsoever to any act or failure to act of the part of the
Plaintiff.
COUNT I
RICHARD A. CABAN vs. CRESSLER TRUCKING. INC..
AND CHARLES ETHERTON. JR.
13. By reason of the negligence and carelessness of the
Defendants as hereinbefore alleged, Plaintiff suffered severe and
permanent injuries to his bones, muscles, tendons, ligaments,
discs, nerves, head, neck, shoulders, arms, elbows, back, chest,
stomach, legs, knees and body including but not limited to: sprain
of right wrist, sprain of right knee, cervical sprain and strain,
lumbosacral strain and sprain and internal derangement of his left
shoulder.
Plaintiff suffered internal injuries of an unknown
nature.
He suffered severe and permanent aches, pains, mental
anxiety and anguish, severe shock to his entire nervous system and
other injuries and/or aggravation of pre-existing injuries, the
full extent of which is not yet known. He has in the past and will
in the future undergo severe pain and suffering as a result of
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to his usual acti vi ties.
The Plaintiff believes and therefore
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which He has in the past and will in the future be unable to attend
avers that his injuries are serious and permanent in nature.
14. As a further result of this accident, Plaintiff has
suffered severe and permanent physical pain, mental anguish and
humiliation and may continue to suffer same for an indefinite time
in the future, all to his great detriment and loss.
15. As a result of the within action, Plaintiff has
incurred and will in the future incur expenses in the treatment of
his injuries.
16. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has sustained a loss of earnings
and earning capacity in the past and will sustain such losses in
the future, to his great financial loss and detriment.
17. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has been obliged to spend large
sums of money for medicine, medical care and attention in an effort
to cure his aforesaid injuries and may be obliged to spend
additional sums of them for the same purposes in the future, to his
great financial loss and detriment.
18. As a direct and reasonable result of the accident
aforementioned, Plaintiff has or may hereinafter incur other
financial expenses or losses which do or may exceed amounts to
which he may otherwise be entitled to recover pursuant to the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.B.A. S1711 et seg.
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WHEREFORE, plaintiff, Richard A. Caban, demands judgement
against the defendants, Cressler Trucking, Inc. and Charles
Etherton, Jr., jointly and severally, in a sum in excess of twenty-
five thousand dollars ($25,000.00), plus costs, interests and
damages for delay.
COUNT II
RICHARD A. CABAN VS. CRESSLER TRUCKING. INC.
(FIRST PARTY BENEFITS)
19. paragraphs 1 through 18 are incorporated herein as
though the same were here set forth at length.
20. on or about May 21, 1999, and for some time prior
thereto, defendant, Cressler, was a self-insured entity under the
terms of which it provided first party benefits in favor of the
Pennsylvania
Motor
Vehicle
Financial
Responsibility
Law
(hereinafter referred to as "PMVFRL"), 75 Pa.C.S.A. S1701, et. seq.
said policy of insurance being in full force and effect at all time
material hereto.
21. on or about May 21, 1999, plaintiff, Richard A.
Caban, sustained bodily injuries in an accident arising out of the
maintenance or U$e of a motor vehicle as defined in the aforesaid
PMVFRL.
22. Pursuant to PMVFRL S1713, (a.) (4) defendant
Cressler must provide first part benefits to plaintiff, Richard A.
Caban.
23. subsequent to the aforesaid accident, plaintiff ,
Richard A. Caban, applied for allowable expenses pursuant to and in
accordance with $aid PMVFRL,
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24. Following the accident, plaintiff, Richard A. caban,
did from time to time thereafter submit to defendant, cressler, in
writing the amount of allowable expenses incurred, including the
following which have not been paid:
Carlisle Hospital (ER)
RWC Corp.
Carlisle Imaging Associates
Carlisle Hospital
RWC Corp.
Carlisle Hospital
$408.00
$220.00
$90.00
$226.00
$140.00
$19.00
$140.00
$2,151. 00
RWC Corp,
David C. Baker, MD
Penn's Wood Physical Therapy
Carlisle Hospital $130,00
Moffit, Pease and Lim(EKG) $30.00
Carlisle Hospital $4,256.02
Blue Mountain Anesthesia $1,040.00
West Shore EMS $42.30
Prescriptions $74.50
Wage Loss $8,846.25
25. As a result of the failure of defendant, Cressler,
to pay first party benefits, plaintiff, Richard A. Caban, has been
forced to incur attorney fees and legal expenses in an effort to
collect the amount that is now past due.
26. Plaintiff believes and therefore alleges that
defendant, Cressler, may refuse payment of other allowable expenses
"
which become overdue after commencement of this suit and therefore,
seeks payment of same as they become due,
27. In accordance with the provisions of the PMVFRL,
S1701, et. seq., plaintiff is entitled to payment for the aforesaid
allowable expenses.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
COUNT III
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC.
(BAD FAITH)
28. Paragraphs 1 through 27 are incorporated herein as
though the same were here set forth at length.
29. 42 Pa. C.S.A. S8371 provides that an action arising
under an insurance policy may be brought by the insured if the
insurer has acted in bad faith towards the insured.
30. Defendant, Cressler, has violated this Act by
engaging in bad faith towards Richard A. Caban in the following
manner:
(al representing that defendant, Cressler, provides,
as a self-insured, medical benefits and wage loss benefits when in
fact said promise was wholly illusory;
(bl purporting to offer medical coverage and/or wage
coverage when in fact, defendant, Cressler, had no intention of
providing medical coverage for Mr. Caban's injuries;
"
(c) denying plaintiff, Richard A. Caban, medical
benefits and/or wage loss benefits without a reasonable basis; (d)
denying plaintiff, Richard A. Caban, medical benefits and/or wage
loss benefits with knowledge or reckless disregard that such denial
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was without ~easonable basis.
31, Plaintiff, Richard A. Caban, hereby requests damages
as provided in S8371 of said Act, including but not limited to the
following:
(a) interest in an amount of claim for the date the
claim was made to the amount of interest plus 3%;
(b) punitive damages against defendant, Cressler;
(c) court costs and attorneys fees against defendant,
Cressler.
WHEREFonE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
RICHARD
COUNT IV
A. CABAN vs. CRESSLER TRUCKING.
(UNFAIR TRADE PRACTICES)
INC.
32. Paragraphs 1 through 31 are incorporated herein as
though the same were here set forth at length,
33. The purpose of the Unfair Trade Practices and
Consumer Protection Law, codified at 73 P.S. S201-2, et seq., is to
"benefit the public at large by eradicating among other things,
unfair or deceptive business practices."
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34. Defendant, Cressler, has violated said act by
engaging in unfair acts and/or deceptive practices.
35. Such unfair acts and/or deceptive practices include,
but are not limited to:
(a) representing the defendant Cressler provides as
a self-insured, medical benefits and/or wage loss benefits to
Richard A. Caban, when in fact said promise was wholly illusory;
(b) purporting to offer medical coverage and/or wage
coverage when in fact, defendant, Cressler, had no intention of
providing medical coverage for Mr. Caban's injuries;
(c) engaging in other fraudulent conduct which
created a likelihood of confusion or misunderstanding to plaintiff,
Richard A. Caban.
36. 73 P.S. 5201-9.2 specifically provides for private
actions to be brought for violations of said Act, including actions
against insurance carriers and/or self-insured entities.
37. Due to violations of said Act, plaintiff, Richard A.
Caban, is rightfully entitled to three times his actual damages
sustained as provided in 73 P.S. 5201-9.2, in addition to such
additional relief as this Honorable Court deems necessary or
proper.
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WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
KRAFT & KRAFT, P.C.
Dated:
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for Plaintiff
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have furnished to my counsel and information which has been gathered by my
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action; that the attached civil Action is based upon the information which I 'il
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VERIFICATION
I, Richard Caban, do hereby verify that I am the Plaintiff in the foregoing
counsel in the preparation of the lawsuit.
The language of the civil Action is
that of my counsel and is not mine.
I have read the civil Action and to the
extent that the information therein is based upon information I have given
counsel,
it is true and correct to the best of my knowledge, information and
belief.
To the extent that the contents of the civil Action are that of
counsel, I have relied upon counsel in making this Verification.
I understand
that false statements made herein are made subject to the penalties of 18 Pa.
C.S.A. Section 4904 relating to unsworn falsifications to authorities.
Dated: 56,/ro
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A, CABAN
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
&C9,L
NO. oo-~ CIVIL TERM
CERTIFICATE OF SERVICE
I, James M. DeSanto, Esquire do hereby certify that a true and
correct copy of Plaintiff's civil Action Complaint has been served
upon the following by certified Mail on May 13, 2000.
Charles Etherton, Jr.
4 West Madison Avenue
Johnstown, NY 12095
DATE:
51~~lcV
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ames M. DeSanto, Esquire
ttorney for Plaintiff
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-02672 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CABAN RICHARD A
VS
ETHERTON CHARLES JR ET AL
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:
CRESSLER TRUCKING INC
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of FRANKLIN
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On May
23rd , 2000 , this office was in receipt of the
attached return from FRANKLIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep. Franklin Co
18.00
9.00
10.00
28.96
.00
65.96
OS/23/2000
KRAFT & KRAFT
R. Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed to before me
this 1Ak- day of 9~.
;l.wi) A. D .
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Prothonot~r
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-02672 T
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF FRANKLIN
CABAN RICHARD A
VS
CRESSLER TRUCKING INC
JOHN D RIDGE , Deputy Sheriff of FRANKLIN
County, pensylvania, who being duly sworn according to law,
says, the within COMPLAINT was served upon
CRESSLER TRUCKING INC
DEFENDANT , at 2036:00 Hour, on the 11th day of May
at 1069 SEIBERT AVENUE
the
, 2000
SHIPPENSBURG, PA 17257
THURMAN HAMMAN-NIGHT DISPATCHE SAME AS
a true and attested copy of COMPLAINT
by handing
ABOVE
to
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
Mileage
So Answers:
9.00
9.00
4.00
.00
6.96
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Y
COUNTY SHERIFF
to befor~
of nttl()-
A.D.
NOTARIAL SEAL
PATn\r~L~\ " _,~.:, TRlt-n:::, Notary Public
._'(~.':-:"::::":':i::t.jrg, Franklin County
My Coi!::"_'~ssion Ex ires Nov. 4. 2000
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. In The Court of Common Pleas of Cumberland County, Pennsylvania
Richard A. Caban
VS.
Charles Etherton. Jr., et. al.
Serve: Cressler Trucking, Inc. No. 20-2672 Civil
Now,
5/9/00
, 20 () (), I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Franklin
County to exe.cute this Writ, this
deputation being made at the request and risk of the Plaintiff.. /./: .~ ... ..
.r~~~t:~~
Sheriff of Cumberland County, P A
Affidavit of Service
Now,
,20_, at
0' clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
methis_dayof ,20_
COSTS
SERVICE
MILEAGE
AFFIDA VIT
$
$
< '. ~ 0
,
KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
vs.
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
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Attorney for Plaintiff(s)
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION AT LAW
NO. 00 -.;U. 7~ (!;vLl ~~
CIVIL ACTION COMPLAINT
"NOTICE"
"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 a.re served, by
entering a written appearance personally or
by attorney and filing in writing with the
Court your defenses or ol>jections to the
claims set forth against you. You are
warned that if you fail to do so the case
may proceed without you and a judgment may
be entered against you by the court without
further notice for any money claimed in the
complaint or for any other claim or relief
requested by the plaintiff. you may lose
money or property or other rights important
to you.
"YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR ClINNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP,
Court Administrator
Courthouse, 4th Floor
1 Courthouse Square
Carlisle, PA 17013
"AVISO"
"Le han demandado a usted en 1a corte a
Si usted quiere defenderse de este demandas
expuestas en las paginas siguientes, usted
tiene veinte (20) dias de plazo 801 partir de
180 fecha de 180 demands y 180 notification.
Hace fa1ta asentar una comparencia escrita 0
en persona 0 con un abogado y entregar a 1a
corte en forma escrita sus defensas 0 sus
objeciones alas demandas en contra de su
persona a Sea avisado que si uBted no Be
defiende, 180 corte tomara medidas y puede
continuar 1a demanda en contra Buya sin previa
aviso 0 notification a Ademas, 1a corte puede
decidir a favor dei demandante y requiere que
usted cumpla con todas las provisiones de esta
demanda. Usted puede perder dinero 0 sus
propiedades u ostros derechos import antes para
usted.
"LLEVE ESTA DEMANDA A UN ABOGADO
IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO
TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO
A LA OFIICINA CUYA DIRECCION SE ENCUENTRA
ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL,"
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KRAFT & KRAFT, P.C.
BY: James M.DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
NO.
CIVIL ACTION COMPLAINT
1. The Plaintiff, Richard A. Caban, is an adult
individual residing at 146 W. High Street, Carlisle, PA 17013.
2. The Defendant, Charles Etherton, Jr., is an adult
individual who, at all times material hereto, resided at the above
address.
3. The Defendant, Cressler Trucking, Inc., (hereinafter
referred to as "Cressler") is a business entity organized and
existing under and by virtue of the statutes of the Commonwealth of
Pennsylvania, doing business in the Commonwealth of Pennsylvania,
with a principal place of business at the above address.
4. On or about May 21, 1999, Defendant, Cressler, owned
and/or possessed and by its agent, servant, workman and/or
employee, Charles Etherton, Jr., controlled and operated the 1995
Kenworth Tractor-Trailer motor vehicle involved in the accident
hereinafter more fully described.
5. At all times material hereto, the vehicle of the
Defendant, Cressler was being operated by Defendant, Charles
Etherton, Jr., in his capacity as its agent, servant, workman
and/or employee, acting in the scope and course of his employment
with Cressler and in furtherance of its business.
6. On or about May 21, 1999 at 3: 30pm, Plaintiff,
Richard A. Caban, was operating his bicycle in a easterly direction
on the shoulder of Ritner Highway, at or near its intersection with
Industrial Drive, both of which are public highways in Carlisle,
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7. At the aforesaid time and place, defendant, Charles
Etherton, Jr., was operating the motor vehicle owned by defendant,
Cressler, in an easterly direction on Ritner Highway at or near its
intersection with Industrial Drive, Carlisle, PA.
8. At the aforesaid time and place, defendant, Charles
Etherton, Jr., acting as aforesaid, so negligently, carelessly and
recklessly operated said motor vehicle so as to cause it to crash
into plaintiff and plaintiff's bicycle, causing serious and
permanent injuries and other losses more fully set forth
hereinafter.
9. The negligence, recklessness, and carelessness of
the Defendants, jointly and severally consisted of the following:
a. Operating their motor vehicle at a high and
excessive rate of speed under the circumstances;
b. Failing to have their motor vehicle under proper
and adequate control at the time of the collision;
c. Careless and reckless operation of their motor
vehicle;
d. Failing to exercise due care and caution under
the circumstances;
e. Failing to keep a proper look out for traffic
ahead in violation of the Pennsylvania Motor Vehicle
Code;
f. Operating their vehicle in a reckless manner
without due regard for the rights, safety and position of
those lawfully upon the highway, one of whom was the
Plaintiff;
g. Failing to give proper and sufficient warning of
the approach and/or position of said vehicle;
h. Operating their vehicle in violation in the
applicable local ordinances and the statutes of the
Commonwealth of Pennsylvania;
i. Defendant, Cressler, failed to properly train
and/or instruct its agent, servant, workman and/or
employee, Defendant, Charles Etherton, Jr., in the safe
operation of the motor vehicle;
j. Defendant, Cressler, negligently entrusted the
motor vehicle to a person not qualified to operate said
vehicle;
1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code;
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o. Failed to maintain their vehicle(s) in
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10. Plaintiff, Richard A. Caban, is entitled to full
tort rights as set forth in the Amended Motor Vehicle Financial
Responsibility Act.
11. Plaintiff, Richard A. Caban, has received injuries
which have resulted in a permanent serious disfigurement and/or a
serious impairment of body functions.
12. This accident was caused solely by the carelessness,
negligence, and recklessness of the Defendants and was due in no
manner whatsoever to any act or failure to act of the part of the
Plaintiff.
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COUNT I
RICHARD A. CABAN vs. CRESSLER TRUCKING. INC..
AND CHARLES ETHERTON. JR.
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13. By reason of the negligence and carelessness of the
Defendants as hereinbefore alleged, Plaintiff suffered severe and
permanent injuries to his bones, muscles, tendons, ligaments,
discs, nerves, head, neck, shoulders, arms, elbows, back, chest,
stomach, legs, knees and body including but not limited to: sprain
of right wrist, sprain of right knee, cervical sprain and strain,
lumbosacral strain and sprain and internal derangement of his left
shoulder. plaintiff suffered internal injuries of an unknown
nature. He suffered severe and permanent aches, pains, mental
anxiety and anguish, severe shock to his entire nervous system and
other injuries and/or aggravation of pre-existing injuries, the
full extent of which is not yet known. He has in the past and will
in the future undergo severe pain and suffering as a result of
which He has in the past and will in the future be unable to attend
to his usual activities. The Plaintiff believes and therefore
avers that his injuries are serious and permanent in nature.
14. As a further result of this accident, Plaintiff has
suffered severe and permanent physical pain, mental anguish and
humiliation and may continue to suffer same for an indefinite time
in the future, all to his great detriment and loss.
15. As a result of the within action, Plaintiff has
incurred and will in the future incur expenses in the treatment of
his injuries.
16. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has sustained a loss of earnings
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and earning capacity in the past and will sustain such losses in
the future, to his great financial loss and detriment.
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17. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has been obliged to spend large
sums of money for medicine, medical care and attention in an effort
to cure his aforesaid injuries and may be obliged to spend
additional sums of them for the same purposes in the future, to his
great financial loss and detriment.
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COUNT II
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC.
(FIRST PARTY BENEFITS)
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18. As a direct and reasonable result of the accident
aforementioned, Plaintiff has or may hereinafter incur other
financial expenses or losses which do or may exceed amounts to
which he may otherwise be entitled to recover pursuant to the
PennsYlvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.S.A. S1711 et seq.
WHEREFORE, plaintiff, Richard A. Caban, demands judgement
against the defendants, Cressler Trucking, Inc. and Charles
Etherton, Jr., jointly and severally, in a sum in excess of twenty-
five thousand dollars ($25,000.00), plus costs, interests and
damages for delay.
19. Paragraphs 1 through 18 are incorporated herein as
though the same were here set forth at length.
20. On or about May 21, 1999, and for some time prior
thereto, defendant, Cressler, was a self-insured entity under the
terms of which it provided first party benefits in favor of the
Pennsylvania Motor Vehicle Financial Responsibility Law
(hereinafter referred to as "PMVFRL"), 75 Pa.C.S.A. S1701, et. seq.
said policy of insurance being in full force and effect at all time
material hereto.
21. On or about May 21, 1999, plaintiff, Richard A.
Caban. sustained bodily injuries in an accident arising out of the
maintenance or use of a motor vehicle as defined in the aforesaid
PMVFRL.
22. Pursuant to PMVFRL S1713, (a.) (4) defendant
Cressler must provide first part benefits to plaintiff, Richard A.
Caban.
23. Subsequent to the aforesaid accident, plaintiff ,
Riohard A. Caban, applied for allowable expenses pursuant to and in
accordance with said PMVFRL.
24. Following the accident, plaintiff, Richard A. Caban,
did from time to time thereafter submit to defendant, Cressler, in
writing the amount of allowable expenses incurred, including the
following which have not been paid:
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Carlisle Hospital (ER)
RWC Corp.
Carlisle Imaging Associates
Carlisle Hospital
RWC Corp.
Carlisle Hospital
RWC Corp.
David C. Baker, MD
Penn's Wood Physical
Carlisle Hospital
Moffit, Pease and Lim(EKG)
Carlisle Hospital
Blue Mountain Anesthesia
West Shore EMS
Prescriptions
Wage Loss
$408.00
$220.00
$90.00
$226.00
$140.00
$19.00
$140.00
$2,151. 00
Therapy
$130.00
$30.00
$4,256.02
$1,040.00
$42.30
$74.50
$8,846.25
25. As a result of the failure of defendant, Cressler,
to pay first party benefits, plaintiff, Richard A. Caban, has been
forced to incur attorney fees and legal expenses in an effort to
collect the amount that is now past due.
26. Plaintiff believes and therefore alleges that
defendant, Cressler, may refuse payment of other allowable expenses
which become overdue after commencement of this suit and therefore,
seekB payment of same as they become due.
27. In accordance with the provisions of the PMVFRL,
S1701, et. seq., plaintiff is entitled to payment for the aforesaid
allowable expenses.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
COUNT III
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC.
(BAD FAITH I
28. Paragraphs 1 through 27 are incorporated herein as
though the same were here set forth at length.
29. 42 Pa, C.S.A. S8371 provides that an action arising
under an insurance policy may be brought by the insured if the
insurer has acted in bad faith towards the insured.
30. Defendant, Cressler, has violated this Act by
engaging in bad faith towards Richard A. Caban in the following
manner:
(a) representing that defendant, Cressler, provides,
as a self-insured, medical benefits and wage loss benefits when in
fact said promise was wholly illusory;
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(b) purporting to offer medical coverage and/or wage
coverage when in fact, defendant, Cressler, had no intention of
providing medical coverage for Mr. Caban's injuries;
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(c) denying plaintiff, Richard A. Caban, medical
benefits and/or wage 10SB benefits without a reasonable basis; (d)
denying plaintiff, Richard A. Caban, medical benefits and/or wage
loss benefits with knowledge or reckless disregard that such denial
was without reasonable basis.
31. Plaintiff, Richard A. Caban, hereby requests damages
as provided in S8371 of said Act, including but not limited to the
following:
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(a) interest in an amount of claim for the date the
claim was made to the amount of interest plus 3%;
(b) punitive damages against defendant, Cressler;
(c) court costs and attorneys fees against defendant,
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Cressler.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
C,OUNT IV
RICHARD A. CABAN VB. 9RESSLER TRUCKING. INC.
(UNFAIR TRADE PRACTICES)
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32. Paragraphs 1 through 31 are incorporated herein as
though the same were here set forth at length.
33. The purpose of the Unfair Trade Practices and
Consumer Protection Law, codified at 73 P.S. S201-2, et seq., is to
"benefit the public at large by eradicating among other things,
unfair or deceptive business practices."
34. Defendant, cressler, has violated said act by
engaging in unfair acts and/or deceptive practices.
35. Such unfair acts and/or deceptive practices include,
but are not limited to:
(a) representing the defendant Cressler provides as
a self-insured, medical benefits and/or wage loss benefits to
Richard A. Caban, when in fact said promise was wholly illusory;
(b) purporting to offer medical coverage and/or wage
coverage when in fact, defendant, Cressler, had no intention of
providing medical coverage for Mr. Caban's injuries;
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(c) engaging in other fraudulent conduct which
created a likelihood of confusion or misunderstanding to plaintiff,
Richard A. Caban.
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KRAFT, P.C.
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36. 73 P.S. S201-9.2 specifically provides for private
actions to be brought for violations of said Act, including actions
against insurance carriers and/or self-insured entities.
37. Due to violations of said Act, plaintiff, Richard A.
Caban, is rightfully entitled to three times his actual damages
sustained as provided in 73 P.S. S201-9.2, in addition to such
additional relief as this Honorable Court deems necessary or
proper.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler TrUCking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
Dated:
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torney for Plaintiff
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VERIFICATION
James M. DeSanto, Esquire, hereby states that he is the
attorney for the Plaintiff(s) in this action and verifies that the
statements made in the foregoing pleading are true and correct to
the best of his knowledge, information and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa, C.S. S4904 relating to
unsworn falsification to authorities.
Dated:
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LAW OFFICES
KRAFT & KRAFT, P. C.
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PAUL KRAFT
PRESTON E. KRAFT-I943-1975
STEVEN KOPLOVE
MARTIN J. KlUiTEIN
ROBERT E. CllERWONY
JAMES M. DeSANTO
1311 SPRUCE STREET
PHILADELPHIA, PA. 19107
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(215)546-5100
Fox: (215)732-3468
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April 21, 2000
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Prothonotary of Cumberland county
Courthouse Building
1 Courthouse Square
Carlisle, PA 17013
Re: RICHARD A. CABAN
vs. CHARLES ETHERTON, JR. and
CRESSLER TRUCKING, INC.
Dear Sir/Madam:
Enclosed please find Civil Action Complaint for filing in the above
matter. Also enclosed is a check in the amount of $45.40
representing your fee to file same and a check in the amount of
$100.00 representing the Sheriff's deposit to serve same. Once
Complaint has been filed, please forward copies to the Sheriff for
service.
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Kindly return two time-stamped copies in the enclosed envelope so
that we may serve Charles Etherton, Jr. by certified mail.
If you have any questions, please do not hesitate to contact the
undersigned.
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JMD/mel
Enclosure
KRAFT & KRAFT, P.C.
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RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
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CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
NOTICE TO PLEAD
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To: Plaintiff, Richard A. Caban and his Attorney,
James M. DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Philadelphia 19107
Dff ii1tf; da10
Thomas A. Lang,
Attorney ID 70
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
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You are hereby notified to plead to the enclosed Preliminary Objections of Defendants,
Charles Etherton, Jr. and Cressler Trucking, Inc. to Plaintiff's Second Amended Complaint within
twenty (20) days from service hereof or a judgment may be entered against you.
Peters & Wasilefski
By:
Attorney for Defendants,
Charles Etherton, Ir. and Cressler Trucking
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RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
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CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
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PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S
SECOND AMENDED COMPLAINT PURSUANT TO Pa. R.C.P. 1028
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AND NOW, come Defendants, Charles Etherton, Jr., and Cressler Trucking, Inc.
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("Defendants"), by and through their attorneys, Peters & Wasilefski, and interpose the following
Preliminary Objections to Plaintiff's Second Amended Complaint:
1. Plaintiff, Richard A. Caban ("Plaintiff"), commenced the above-captioned action by
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Complaint filed on or about May 1,2000.
2. On May 23, 2000, Defendants filed Preliminary Objections to Plaintiff's
Complaint, with a Brief in support thereof.
3. In response to the Preliminary Objections, Plaintiff filed an Amended Complaint.
4. As Plaintiff failed to cure the defects of his original Complaint in his Amended
Complaint, Defendants were compelled to file Preliminary Objections to Plaintiff's Amended
Complaint with a Brief in Support thereof, on or about June 8, 2000.
5. On July 19, 2000, Plaintiff served a Second Amended Complaint upon counsel for
Defendants via fax, despite the fact that the Second Amended Complaint had apparently been filed
in the Prothonotary's office on or about July 5, 2000.
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6. Although Plaintiff withdrew Counts III and IV from his Amended Complaint in
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response to Defendants' Preliminary Objections thereto, he failed to withdraw paragraphs 9 c, d, h
and I which were the subject of Defendants' Preliminary Objections in the nature of a Motion to
Strike.
7. In addition thereto, in his Second Amended Complaint, for the first time, Plaintiff
added a new paragraph 28 as follows:
28.
Pursuant to PMVFRL, S 1797 and S 1798, Plaintiff is
entitled to the outstanding amount of any bills, plus interest
at 12 % per annum, as well as costs and all attorneys' fees.
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and in light of the addition of the objectionable paragraph 28 referenced above, Defendants are
compelled to file yet another set of Preliminary Objections to what is now titled Plaintiff's "Second
Amended Civil Action Complaint" .
9. In paragraphs 6-8 of the Second Amended Complaint, Plaintiff contends that an
incident occurred involving his bicycle and Defendants' tractor-trailer while both were traveling in
an easterly direction on Ritner Highway at or near its intersection with Industrial Drive in Carlisle,
Pennsylvania on May 21, 1999.
I. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE
10. Paragraphs 1-9 are incorporated herein by reference thereto as tllough set forth at
length.
II. In paragraph 9 of his Second Amended Complaint Plaintiff alleges inter alii!, the
following:
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9. The negligence, recklessness and carelessness of the
Defendants, jointly ~nd severally consisted of the following:
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c. Careless mid reckless operation of their
motor vehicle;
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d. Failing to lexercise due care and caution
under the ci*cumstances;
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h. Operating their vehicle in violation in(sic) the
applicable lqcal ordinances and the statutes of
the Connhonwealth of Pennsylvania,
including, But not limited to those statutes
pertaining t6 careless driving;
1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code, including, but
not limited to those provisions pertaining to
careless driving.
12. Paragraphs 9c, d, hand 1 of Plaintiff's Second Amended Complaint fail to conform
to law and the Rules of Court since said allegations are vague and do not state material facts. The
allegations are impertinent
13. Paragraphs 9c, d, hand 1 of Plaintiff's Second Amended Complaint fail to advise
Defendants of the specific acts of commission or omission which constitute the alleged negligence
of which Plaintiff complains.
14. The general allegations contained in paragraphs 9c, d, h and 1 of Plaintiff's Second
Amended Complaint fail to inform Defendants of the issues that they must meet at trial and further
prevent Defendants from forming a proper Answer to the Second Amended Complaint.
3
15. With regard to paragraphs 9cand d of Plaintiff's Second Amended Complaint, such
vague and conclusory allegations fail to comply with the mandate of Pa. R.C.P. 1019(a) that, "the
material facts on which a cause of action or defense is based shall be stated in a concise and
summary form. "
16. With regard to paragraphs 9h and 1 of Plaintiff's Second Amended Complaint,
Plaintiff has failed to specifically identify which "applicable local ordinances", "statutes of the
Commonwealth of Pennsylvania", and/or "p~rtinent provisions of the Pennsylvania Vehicle Code"
Defendants allegedly violated.
17. With further regard to p<$graphs 9h and I of Plaintiff's Second Amended
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Complaint, Plaintiff has further compounder the problem and caused said paragraphs to be even
more objectionable by adding the phrase "in~luding but not limited to".
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18. Based upon Plaintiff's failure to comply with the well-established, clear pleading
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requirements in this Commonwealth, Defendants are precluded from even beginning to attempt to
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frame a proper Answer to said allegations, dud they are prejudiced by being precluded from being
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able to prepare a proper defense to said alleg~tions.
19. The aforesaid improper all~gations set forth in paragraphs 9c, d, h and I of
Plaintiff's Second Amended Complaint seyerely prejudice Defendants in that, if permitted to
remain in the Second Amended Complaint~ Plaintiff would have the opportunity to amend the
Second Amended Complaint and introduce new causes of action after the applicable statute of
limitations has expired. See, Conner v. Allel!henv General HosvitaL 501 Pa. 306, 461 A.2d 600
(1983), and its progeny.
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WHEREFORE, Defendants respectfully request the Court to sustain their Preliminary
Objections in the Nature of a Motion to Strike paragraphs 9c, d, h and I of Plaintiff's Second
Amended Complaint.
II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO
PARAGRAPH 28 OR. IN THE ALTERNATIVE. A MOTION TO STRIKE
PARAGRAPH 28
20. Paragraphs 1 through 19 above are incorporated herein by reference thereto as
though set forth at length.
21. In paragraph 28 of his Second Amended Complaint, Plaintiff has alleged:
28. Pursuant to PMVFRL, S 1797 and S 1798, Plaintiff is
entitled to the outstanding amount of any bills plus interest at
12 % per annum, as well as costs and all attorneys' fees.
22. Plaintiff has no standing to maintain a claim under PMVFRL S 1797 and S 1798 as
Plaintiff was not an "insured" under an insurance policy of Defendant, Cressler Trucking.
23. Plaintiff has no standing to maintain a claim pursuant to PMVFRL S 1797 as
Plaintiff has failed to alleged a cause of action in the nature of an appeal from a decision of a peer
review organization to the Court of Connnon Pleas.
24. In paragraph 28 of his Second Amended Complaint, Plaintiff has failed to state a
claim upon which relief may be granted.
WHEREFORE, Defendant, Cressler Trucking respectfully requests this Court to sustain
its Preliminary Objection in the Nature of a Demurrer to paragraph 28 or in the alternative, to
sustain its Preliminary Objection in the Nature of a Motion to Strike paragraph 28 from Plaintiff's
Second Amended Complaint.
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By:
Respectfully Submitted,
Peters & Wasilefski
Thomas A. Lan Ire
Attorney I 26
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
Attorney for Defendants,
Charles Etherton, If. and
Cressler Trucking, Inc.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Preliminary
Objections to Plaintiff's Second Amended Complaint, has been served on all parties of interest
by placing the same in the United States mail, first-class postage pre-paid, at Harrisburg,
Pennsylvania on this 26th day of July, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
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PRAECIPE FOR LISTING CASE FOR ARGUylENT
(y!ust be rypewritten md submitted in duplicatei
TO THE PROTHONOTARY,OF CD'IBERL\.'iD COUNTY;
,
Please listtbe within mailer for :be ne:u:
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---.. Argument Court
----------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be,stated in full)
Richard A. Caban
(plaimifi)
'Is.
OJarles Etherton, Jr., and
Cressler Trucking Company, loc,.
(Defendant)
'Is.
So. OO-267(.t Civil
19_
1. State matter !O be argued (i. e., plaintiffs motion for new trial.
defendant's demurrer to complaint, elc.);
Det:endants' Preliminary Objections to Plaintiff' s Second Amer\ded Canplaint
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Identify counsel who will argue cose:
(a) for nlaintiff:
James M. DeSanto, Esquire
(b) 'for defendant:
Thomas A. Lang, Esquire
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3. I will notify ail parties-in writing wi:.h.in cwo days ~hat :his ~JSe has been
listed for ugumem. .:.
4.
Argument Co~rt,Date:
Call of Argument List
August 30:j/,-
Date: ~
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Dated: H .;? ~ ;)000
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I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe for
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Listing Case for Argument, has been served on all parties of interest by placing the same in the
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United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this 26"' day of
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July, 2000, and addressed as follows:
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James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN
146 W. High Street
carlisle, PA 17013
vs.
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
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Attorney for Plaintiff(s)
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COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
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CIVIL ACTION AT LAW
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NO. 00-2672
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"AVISO"
"Le han demandado a usted en la corte.
Si usted quiere defenderse de este demandaE
expuestas en las paginas siguientes, ustec
tiene veinte (20) dias de plazo al partir dE
la fecha de la demands y la notification.
Haae falta asentar una comparencia escrita c
en persona 0 con un abogado y entregar a 1E
corte en forma escrita SUB defensas 0 SUE
objeciones alas demandas en contra de St
persona. Sea avisado que 8i usted no BE;
defiende, la corte tomara medidas y puedE
continuar 1a demanda en contra suya sin previc
aviso 0 notification. Ademas, 1a corte puedE
decidir a favor dei demandante y requiere quE
usted cumpla con todas las provisiones de eate
demanda. Usted puede perder dinero 0 su,
propiedades u ostros derechos importantes pari
usted.
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SECOND AMENDED CIVIL ACTION COMPLAINT
"NOTICE"
"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
warned that if you fail to do so the case
may proceed without you and a judgment may
be entered against you by the court without
further notice for any money claimed in the
complaint or for any other claim or relief
requested by the plaintiff. you may lose
money or property or other rights important
to you.
"YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Courthouse, 4th Floor
1 Courthouse Square
Carlisle, PA 17013
"LLEVE ESTA DEMANDA A UN ABOGADC
IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NC
TIENE EL DINERO SUFICIENTE DE PAGAR TAl
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONC
A LA OFIICINA CUYA DIRECCION SE ENCUENTRl
ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL."
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~FT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 1~095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
NO. 00-2672
SECOND AMENDED CIVIL ACTION COMPLAINT
1. The Plaintiff, Richard A. Caban, is an adult
individual residing at 146 W. High street, Carlisle, PA 17013.
2.
The Defendant, Charles Etherton, Jr., is an adult
individual who, at all times material hereto, resided at the above
address.
3. The Defendant, Cressler Trucking, Inc., (hereinafter
referred to as "Cressler") is a business entity organized and
existing under and by virtue of the statutes of the Commonwealth of
Pennsylvania, doing business in the Commonwealth of Pennsylvania,
with a principal place of business at the above address.
4. On or about May 21, 1999, Defendant, cressler, owned
and/or possessed and by its agent, servant, workman and/or
employee, Charles Etherton, Jr., controlled and operated the 1995
Kenworth Tractor-Trailer motor vehicle involved in the accident
hereinafter more fully described.
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5. At all times material hereto, the vehicle of the
Defendant, Cressler was being operated by Defendant, Charles
Ethe:t"ton, Jr., in his capacity as its agent, servant, workman
and/or employee, acting in the scope and course of his employment
with Cressler and in furtherance of its business.
6. On or about May 21, 1999 at 3:30pm, Plaintiff,
Richard A. Caban, was operating his bicycle in a easterly direction
on tne shoulder of Ritner Highway, at or near its intersection with
Industrial Drive, both of which are public highways in Carlisle,
PA.
7.
At the aforesaid time and place, defendant, Charles
Ethe:t"ton, Jr., was operating the motor vehicle owned by defendant,
Cressler, in an easterly direction on Ritner Highway at or near its
intersection with Industrial Drive, Carlisle, PA,
8. At the aforesaid time and place, defendant, Charles
Etherton, Jr., acting as aforesaid, so negligently, carelessly and
recklessly operated said motor vehicle so as to cause it to crash
into plaintiff and plaintiff's bicycle, causing serious and
permanent injuries and other losses more fully set forth
hereinafter.
9. The negligence, recklessness, and carelessness of
the Defendants, jointly and severally consisted of the following:
a. operating their motor vehicle at a high and
excessive rate of speed under the circumstances;
b. Failing to have their motor vehicle under proper
and adequate control at the time of the collision;
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c. Careless and reckless operation of their motor
vehicle;
d. Failing to exercise due care and caution under
the circumstances;
e. Failing to keep a proper look out for traffic
ahead in violation of the Pennsylvania Motor Vehicle
Code;
f. Operating their vehicle in a reckless manner
without due regard for the rights, safety and position of
those lawfully upon the highway, one of whom was the
Plaintiff;
g. Failing to give proper and sufficient warning of
the approach and/or position of said vehicle;
h. Operating their vehicle in violation in the
applicable local ordinances and the statutes of the
Commonwealth of Pennsylvania, including, but not limited
to those statutes pertaining to careless driving;
i. Defendant, Cressler, failed to properly train
and/or instruct its agent, servant, workman and/or
employee, Defendant, Charles Etherton, Jr., in the safe
operation of the motor vehicle;
j. Defendant, Cressler, negligently entrusted the
motor vehicle to a person not qualified to operate said
vehicle;
1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code, including, but not limited to
those provisions pertaining to careless driving;
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o. Failed to maintain their vehicle(s) in
a safe and proper mechanical and operating condition.
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10. plaintiff, Richard A. Caban, is entitled to full
tort rights as set forth in the Amended Motor Vehicle Financial
Responsibility Act.
11. plaintiff, Richard A. Caban, has received injuries
which have resulted in a permanent serious disfigurement and/or a
serious impairment of body functions.
12. This accident was caused solely by the carelessness,
negligence, and recklessness of the Defendants and was due in no
manner whatsoever to any act or failure to act of the part of the
Plaintiff.
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COUNT I
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC..
AND CHARLES ETHERTON. JR.
Defendants as hereinbefore alleged, Plaintiff suffered severe and
permanent injuries to his bones, muscles, tendons, ligaments,
discs, nerves, head, neck, shoulders, arms, elbows, back, chest,
stomach, legs, knees and body including but not limited to: sprain
of right wrist, sprain of right knee, cervical sprain and strain,
lumbosacral strain and sprain and internal derangement of his left
shoulder.
Plaintiff suffered internal injuries of an unknown
nature.
He suffered severe and permanent aches, pains, mental
anxiety and anguish, severe shock to his entire nervous system and
other injuries and/or aggravation of pre-existing injuries, the
full extent of which is not yet known. He has in the past and will
in the future undergo severe pain and sUffering as a result of
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The Plaintiff believes and therefore
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,which He has in the past and will in the future be unable to attend
avers that his injuries are serious and permanent in nature.
14. As a further result of this accident, Plaintiff has
suffered severe and permanent physical pain, mental anguish and
humiliation and may continue to suffer same for an indefinite time
in the future, all to his great detriment and loss.
15. As a result of the within action, Plaintiff has
16. As a result of the negligence of the Defendant as
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incurred and will in the future incur expenses in the treatment of
his injuries.
hereinbefore alleged, Plaintiff has sustained a loss of earnings
and earning capacity in the past and will sustain such losses in
the future, to his great financial loss and detriment.
17. As a result of the negligence of the Defendant as
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sums of money for medicine, medical care and attention in an effort
to cure his aforesaid injuries and may be obliged to spend
additional sums of them for the same purposes in the future, to his
great financial loss and detriment.
18. As a direct and reasonable result of the accident
aforementioned, Plaintiff has or may hereinafter incur other
financial expenses or losses which do or may exceed amounts to
which he may otherwise be entitled to recover pursuant to the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.S.A. S1711 et seq.
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WHEREFORE, plaintiff, Richard A. Caban, demands judgement
against the defendants, Cressler Trucking, Inc. and Charles
.
Etherton, Jr., jointly and severally, in a sum in excess of twenty-
five thousand dollars ($25,000.00), plus costs, interests and
damages for delay.
COUNT II
RICHARD A. CABAN vs. CRESSLER TRUCKING. INC.
(FIRST PARTY BENEFITS I
19. Paragraphs 1 through 18 are incorporated herein as
though the same were here set forth at length.
20. On or about May 21, 1999, and for some time prior
thereto, defendant, Cressler, was a self-insured entity under the
terms of which it provided first party benefits in favor of the
Pennsylvania
Financial
Responsibility
Law
Vehicle
Motor
(hereinafter referred to as "PMVFRL"), 75 Pa.C.S.A. S1701, et. seq.
said policy of insurance being in full force and effect at all time
material hereto.
21. On or about May 21, 1999, plaintiff, Richard A.
Caban, sustained bodily injuries in an accident arising out of the
maintenance or use of a motor vehicle as defined in the aforesaid
PMVFRL.
22. Pursuant to PMVFRL S1713, (a.) (4) defendant
Cressler must provide first part benefits to plaintiff, Richard A.
Caban.
23. subsequent to the aforesaid accident, plaintiff,
Richard A. Caban, applied for allowable expenses pursuant to and in
accordance with said PMVFRL.
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24. Following the accident, plaintiff, Richard A. Caban,
did from time to time thereafter submit to defendant, Cressler, in
writing the amount of allowable expenses incurred, including the
following which have not been paid:
Carlisle Hospital (ER) $408.00
RWC Corp. $220.00
Carlisle Imaging Associates $90.00
Carlisle Hospital $226.00
RWC Corp. $140.00
Carlisle Hospital $19.00
RWC Corp. $140.00
David C. Baker, MD $2,151.00
Penn's Wood Physical Therapy
Carlisle Hospital
$130.00
Moffit, Pease and Lim(EKG) $30.00
Carlisle Hospital $4,256.02
Blue Mountain Anesthesia $1,040.00
West Shore EMS $42.30
Prescriptions $74.50
Wage Loss $8,846.25
25. As a result of the failure of defendant, Cressler,
to pay first party benefits, plaintiff, Richard A. Caban, has been
forced to incur attorney fees and legal expenses in an effort to
collect the amount that is now past due.
26. Plaintiff believes and therefore alleges that
defendant, Cressler, may refuse payment of other allowable expenses
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~which- become overdue after commencement of this suit and therefore,
seeks payment of same as they become due.
27. In accordance with the provisions of the PMVFRL,
S1701, et. seq., plaintiff is entitled to payment for the aforesaid
allowable expenses.
28. Pursuant to PMVFRL, S1797 and S1798, Plaintiff is
entitled to the outstanding amount of any bills, plus interest at
12% per annum, as well as costs and all attorney's fees.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
KRAFT & KRAFT, P.C.
Dated:
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J, mes M. DeSanto, Esquire
ttorney for Plaintiff
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VERIFICATION
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I, Richard Caban, do hereby verify that I am the Plaintiff in the foregoing
action; that the attached civil Action is based upon the information which I
have furnished to my counsel and information which has been gathered by my
counsel in the preparation of the lawsuit. The language of the civil Action is
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that of my counsel and is not mine. I have read the civil Action and to the
extent that the information therein is based upon information I have given
counsel, it is true and correct to the best of my knowledge, information and
Dated: 6/28/00
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belief.
To the extent that the contents of the civil Action are that of
counsel, I have relied upon counsel in making this Verification. I understand
that false statements made herein are made subject to the penalties of 18 Pa.
C.S.A. section 4904 relating to unsworn falsifications to authorities.
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PRAECIPE FOR LISTI'iG CASE FOR ARGUYIE2'fT
l.'llust be typewritten md submitted in duplicate ~
TO THE PROTHONOT.-\RY,OF Ct:?vlBERL.i.J."iD COL-:'-iTY:
Please !.is! the within matter for :b.e next:
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Pre~Tri:ti .\.rgumem C~ur'l:
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CAPTION OF C.;SE
(entire caption must be stated in full)
Richard A. Caban,
(plaintiff)
.s.
<1larles Etherton, Jr., and
Cressler Trucking,
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State matter to oe :u-gu.ed (1. ~~, plaintiffs motion for new trial.
defendant's demurrer to oomlliaint. etc.):
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, Defendants' Preliminary Objections to Plaintiff I s Amended Complaint
Identify oounsel wno will argue oze:' ' ,
far plaintiff:
(a)
(h)
James M. DeSanto, Esquire
[or defendant:
'lhomas A. Lang, Esquire
3. I will notify '3.ll. parties tn. writing witi:in ::wo days t~:J.t ,:his ~:1Se ius been
listed for argument. _
4. Argument Court Date:
Call of Argument List
(.-\t!orney ~'or
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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe for
Listing Case for Argument, has been served on all parties of interest by placing the same in the
United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this 5th day of June,
2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
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RICHARD A. CABAN,
Plaintiff
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COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
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NO: OO-~ CIVIL TERM
v.
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NOTICE TO PLEAD
To: Plaintiff, Richard A. Caban and his Attorney,
James M. DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Philadelphia 19107
You are hereby notified to plead to the enclosed Preliminary Objections of Defendants,
Charles Etherton, Jr. and Cressler Trucking, Inc. to Plaintiff's Complaint within twenty (20) days
from service hereof or a judgment may be entered against you.
By:
Date: ;y~ cJ/J; C}ciP
Peters & Wasilefski
/
Thomas A. Lang, Es
Attorney ID #52
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
Attorney for Defendants,
Charles Etherton, Ir. and Cressler Trucking
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RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
'J-\o1;)..
NO: OO-~ CIVIL TERM
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT
PURSUANT TO Pa. R.C.P. 1028
AND NOW, come Defendants, Charles Etherton, Jr., and Cressler Trucking, Inc.
("Defendants"), by and through their attorneys, Peters & Wasilefski, and interpose the following
Preliminary Objections to Plaintiff's Complaint:
1. Plaintiff, Richard A. Caban ("Plaintiff"), commenced the above-captioned action by
a Complaint filed on or about May I, 2000. A copy of Plaintiff's Complaint is attached hereto,
without admission or adoption thereof, and marked as Exhibit "A".
2. In paragraphs 6-8 of the Complaint, Plaintiff contends that an incident occurred
involving his bicycle and Defendants' tractor-trailer while both were traveling in an easterly
direction on Ritner Highway at or near its intersection with Industrial Drive in Carlisle,
Pennsylvania on May 21, 1999.
3. Plaintiff's Complaint must be stricken in its entirety based upon Plaintiff's failure to
comply with the very clear verification requirement of Pa. R.C.P. 1024.
4. The Complaint was verified on April 21, 2000 by Plaintiff's attorney, James M.
DeSanto, Esquire.
5. Pa. R.C.P, 1024(c) requires:
(c) Verification shall be made by one or more of the parties filing the
pleading unless all the parties (I) lacks sufficient knowledge of
information, or (2) are outside the jurisdiction of the Court and the
verification of none of them can be obtained with the time allowed for
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filing the pleading,. In such cases, the verification may be made by any
person having sufficient knowledge or information and belief and shall set
forth the source of the person's information as to matters not stated upon
his or her own knowledge and the reason why the verification is not made
by a party. (emphasis added)
6. The Verification in the present case fails to set forth the source of Plaintiff's
counsel's knowledge as to matters not stated upon his knowledge, and further fails to contain a
statement of the reason why the Verification is not made by the Plaintiff himself.
7. Based upon Plaintiff's failure to comply with the very clear mandate of Pa. R.C.P.
1024 concerning the verification of this pleading, it is respectfully submitted that Plaintiff's
Complaint must be stricken pursuant to Pa. R.c.P. 1028(a)(2).
8. In addition to the foregoing, in paragraph 9 of his Complaint, Plaintiff alleges inter
alia, the following:
9. The negligence, recklessness and carelessness of the
Defendants, jointly and severally consisted of the following:
c. Careless and reckless operation of their
motor vehicle;
d. Failing to exercise due care and caution
under the circumstances;
h. Operating their vehicle in violation in(sic) the
applicable local ordinances and that statutes
of the Commonwealth of Pennsylvania;
1. Violations of the pertinent provisions of the
Pennsylvania Vehicle Code;
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Negligence per se; and
Negligence at law.
9. Paragraphs 9c, d, h, 1, P and q of Plaintiff's Complaint fail to conform to law and
the Rules of Court since said allegations are vague and do not state material facts. The allegations
are impertinent.
10. Paragraphs 9c, d, h, 1, P and q of Plaintiff's Complaint fail to advise Defendants of
the specific acts of commission or omission which constitute the alleged negligence of which
Plaintiff complains.
11. The general allegation contained in paragraph 9c, d, h, 1, P and q of Plaintiff's
Complaint fail to inform Defendants of the issues that they must meet at trial, and further prevent
Defendants from forming a proper Answer to the Complaint.
12. With regard to paragraphs 9c, d, p, and q of Plaintiff's Complaint, such vague and
conclusory allegations fail to comply with the mandate of Pa. R.C.P. IOI9(a) that, "the material
facts on which a cause of action or defense is based shall be stated in a concise and summary
form."
13. With regard to paragraphs 9h and 1; Plaintiff has failed to identify which
"applicable local ordinances", "statutes of the Commonwealth of Pennsylvania" and/or "pertinent
provisions of Pennsylvania Vehicle Code" Defendants allegedly violated.
14. Based upon Plaintiff's failure to comply with the well-established, clear pleading
requirements in this Commonwealth, Defendants are precluded from even beginning to attempt to
frame a proper Answer to said allegations, and they are prejudiced by being precluded from being
able to prepare a proper defense to said allegations.
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15. The aforesaid improper allegations set forth in paragraph 9c, d, h, I, P and q
severely prejudice Defendants in that, if permitted to remain in the Complaint, Plaintiff would have
the opportunity to amend the Complaint to introduce new causes of action after the applicable
statute of limitations has expired. See, Conner v. Allegheny General Hospital, 501 Pa. 306, 461
A.2d 600 (1983), and its progeny.
WHEREFORE, Defendants respectfully request that the Court enter an appropriate Order
therein sustaining their Preliminary Objections and striking Plaintiff's Complaint in its entirety
based upon the improper Verification. Alternatively, Defendants respectfully request that if the
Complaint will not be stricken in its entirety, that the Court sustain Defendant's additional
Preliminary Objections and enter an appropriate Order therein striking paragraphs 9c, d, h, 1, p
and q for the reasons set forth above.
Respectfully Submitted,
Peters & Wasilefski
Thomas A. Lang, Esq .
Attorney ID #52
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
By:
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Attorney for Defendants,
Charles Etherton, II. and Cressler Trucking
4
MaY-12-00 07:05A C.r..ss.lers Truck;ng
KRAFT & KRAFT, P.C.
BY: James M. Desanto, Esquire
Attorney NQ. 49442
1311 SprUCe Street
Philadelphia, PA 19107
(215) 546-5100
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7J 7;,5322051
P.02
Attorney for Plaintiff(s)
RICHARD A. CABAN :
146 W. High street
Carlisle, PA 17013
vs.
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER T~UCKING, INC.
1069 Seibe~t Avenue
Shippensburg, PA 17257
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION AT LAW
NO. 06 -02Io?d-....
C;u~(~~
CIVIL ACTION COMPLAIJIT
" NOTIC:!"
"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 writinq with the
Court your defenses or objections to the
claims Bet forth against you. You are
warned that if you fail to do so the case
may proceed without you and a judgment may
be entered against you by the court without
further notice for any money claimed in the
complaint or for any other claim or relief
requested by the plaintiff. you may lose
money or property Or other rights important
to you.
"YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFF!CI>-' SET FORTH BELOW TO
FIND OUT WHERE YOlr'CAN GET LEGAL HELP.
Court Administrator
Courthouse, 4th Floor
1 Courthouse Square
Carlisle, PA 17013
----
.IAVISO"
'ILe han demandado a usted en 1a corte.
5i usted quiere defenderse de eate demandas
expuestas en laB paqinas siquientes I ustec.
tiene veinte (20) dias de plazo al partir de
1a fecha de 1a demands y 1a notification.
Race falta asentar una comparencia escrita c
en persona 0 con un aboqado y entregar a. la
corte en forma escrita BUS defensas 0 BU:::
objeciones alas demandas en contra de St.:
persona. Sea avisado que si usted no SE
defiende, la corte tomara medidas y puede-
continuar 1a demanda en contra suya sin previc
aviso 0 notifioation. Ademas, 1a corte puede
decidir a favor dei demandante y requiere que
usted cumpla con todas las provisiones de eata
demanda. Usted puede perder dinero 0 SUE"
propiedades U ostros derechos import antes pare
usted.
"LLEVE ESTA DEMANDA A UN ABOGADC
IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NC
TIENE EL DINERO SUFICIENTE DE PAGAR TAl
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONC
A LA OP'I1CIl~A CUYA DIRECCION SE ENCUENTJU,
ESRITA ABAJO PARA AVEJUGUAR DONDE SE POEDE
CONSEGUJR ASISTENCIA LEGAL."
TRUE COpy F.ROM RECORD
In Twsti:rtlJny WI1?-Hl(lL loor~ ur.:o 3et my hanG
at1d th~ ~.z or ~~~~ Cocu1 at can~, Pa.
T~~ ~ay f5 ~~/7:~~
nclary
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Ma~-12-00 07:06A Cr~sslers Truck;ng
7~ '<'5322051
KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff{s)
RICHARD A. CABAN
146 W. High Street
Carlisle, PA 17013
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
4 W. Madison Avenue
Johnstown, NY 12095
and
CRESSLER TRUCKING, INC.
1069 Seibert Avenue
Shippensburg, PA 17257
NO.
CIVIL ACTION COMPLAINT
1. The Plaintiff, Richard A. Caban, is
individual residing at 146 W. High street, carlisle, PA
an adult
17013.
2. The Defendant, Charles Etherton, Jr., is an adult
individual who, at all times material hereto, resided at the above
address.
3. The Defendant, Cressler Trucking, Inc., (hereinafter
referred to as "cressler") is a business entity organized and
existing under and by virtue of the statutes of the Commonwealth of
Pennsylvania, doing business in the Commonwealth of Pennsylvania,
with a principal place of business at the above address.
4. On or about May 21, 1999, Defendant, cressler, owned
and/or possessed and by its agent, servant, workman and/or
employee, Charles Etherton, Jr., controlled and operated the 1995
Kenworth Tractor-Trailer motor vehicle involved in the accident
hereinafter more fully described.
5. At all times material hereto, the vehicle of the
Defendant, Cressler was being operated by Defendant, Charles
Etherton, Jr., in his capacity as its agent, servant, workman
and/or employee, acting in the scope and course of his employment
with Cressler and in furtherance of its business.
6. On or about May 21, 1999 at 3:30pm, Plaintiff,
Richard A. Caban, was operating his bicycle in a easterly direction
on the shoulder of Ritner Highway, at or near its intersection with
Industrial Drive, both of which are public highways in Carlisle,
PA.
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P.04
7. At the aforesaid time and place, defendant, Charles
Etherton, Jr., was operating the motor vehicle owned by defendant,
cressler, in an easterly direction on Ritner Highway at or near its
intersection with Industrial Drive, Carlisle, PA.
8. At the aforesaid time and place, defendant, Charles
Etherton, Jr., acting as aforesaid, so negligently, carelessly and
recklessly operated said motor vehicle so as to cause it to crash
into plaintiff and plaintiff's bicycle, causing serious and
permanent injuries and other losses more fully set forth
hereinafter.
9. The negligence, recklessness, and carelessness of
the Defendants, jointly and severally consisted of the following:
a. Operating their motor vehicle at a high and
excessive rate of speed under the circumstances;
b. Failing to have their motor vehicle under proper
and adequate control at the time of the collision;
c. Careless and reckless operation of their motor
vehicle;
d. Failing to exercise due care and caution under
the circumstances;
e.
ahead in
Code;
Failing to keep a proper look out for traffic
violation of the Pennsylvania Motor Vehicle
f. operating their vehicle in a reckless manner
without due regard for the rights, safety and position of
those lawfully upon the highway, one of whom was the
Plaintiff;
g. Failing to give proper and sufficient warning of
the approach and/or position of said vehicle;
h. Operating their vehicle in violation in the
applicable local ordinances and the statutes of the
Commonwealth of Pennsylvania;
i. Defendant, Cressler, failed to properly train
and/or instruct its agent, servant, workman and/or
employee, Defendant, Charles Etherton, Jr., in the safe
operation of the motor vehicle;
j. Defendant, cressler, negligently entrusted the
motor vehicle to a person not qualified to operate said
vehicle;
1. Violations of the pertinent provisions of the
pennsylvania Vehicle Code;
May-12-00 07:06A Cr~,ss'lers T k
rue ;ng
7' <:,5'322051
o. Failed to maintain their vehicle(s) in
a safe and proper mechanical and operating condition;
p. Negligence per se; and
q. Negligence at law.
10. plaintiff, Richard A. Caban, is entitled to full
tort rights as set forth in the Amended Motor Vehicle Financial
Responsibility Act.
11. Plaintiff, RiChard A. Caban, has received injuries
which have resulted in a permanent serious disfigurement and/or a
serious impairment of body functions.
12. This accident was caused solely by the carelessness,
negligence, and recklessness of the Defendants and was due in no
manner whatsoever to any act or failure to act of the part of the
Plaintiff.
COUNT I
RICHARD A. CABAN VB. CRESSLER TRUCltING. INC..
AND CHARLES ETHERTON. J:R.
13. By reason of the negligence and carelessness of the
Defendants as hereinbefore alleged, Plaintiff suffered severe and
permanent injuries to his bones, muscles, tendons, ligaments,
discs, nerves, head, neck, shoulders, arms, elbows, back, chest,
stomach, legs, knees and body including but not limited to: sprain
of right wrist, sprain of right knee, cervical sprain and strain,
lumbosacral strain and sprain and internal derangement of his left
shoulder. Plaintiff suffered internal injuries of an unknown
nature. He suffered severe and permanent aches, pains, mental
anxiety and anguish, severe shock to his entire nervous system and
other injuries and/or aggravation of pre-existing injuries, the
full extent of which is not yet known. He has in the past and will
in the future undergo severe pain and suffering as a result of
which He has in the past and will in the future be unable to attend
to his usual activities. The Plaintiff believes and therefore
avers that his injuries are serious and permanent in nature.
14. As a further result of this accident, Plaintiff has
suffered severe and permanent physical pain, mental anguish and
h~iliation and may continue to suffer same for an indefinite time
in the future, all to his great detriment and loss.
15. As a result of the within action, Plaintiff has
incurred and will in the future incur expenses in the treatment of
his injuries.
16. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has sustained a loss of earnings
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May-12-00 07:07A C'r""ss'lers Trucking
7'75-3220'51
1
and earning capacity in the past and will sustain such losses in
the future, to his great financial loss and detriment.
17. As a result of the negligence of the Defendant as
hereinbefore alleged, Plaintiff has been obliged to spend large
sums of money for medicine, medical care and attention in an effort
to cure his aforesaid injuries and may be obliged to spend
additional sums of them for the same purposes in the future, to his
great financial loss and detriment.
18. As a direct and reasonable result of the accident
aforementioned, Plaintiff has or may hereinafter incur other
financial expenses or losses which do or may exceed amounts to
which he may otherwise be entitled to recover pursuant to the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.S.A. S1711 et seq.
WHEREFORE, plaintiff, Richard A. Caban, demands judgement
against the defendants, Cressler TrUCking, Inc. and Charles
Etherton, Jr., jointly and severally, in a sum in excess of twenty-
five thousand dollars ($25,000.00), plus costs, interests and
damages for delay.
COUN'l' II
RICllARD A. CABAN VB. CRESSLER TRUCKING. INC.
(FIRST PARTY BENEFITSl
19. Paragraphs 1 through 18 are incorporated herein as
though the same were here set forth at length.
20. On or about May 21, 1999, and for some time prior
thereto, defendant, Cressler, was a self-insured entity under the
terms of which it provided first party benefits in favor of the
Pennsylvania Motor Vehicle Financial Responsibility Law
(hereinafter referred to as "PMVFRL"), 75 Pa.C.S.A. S1701, et. seq.
said policy of insurance being in full force and effect at all time
material hereto.
21. On or about May 21, 1999, plaintiff, Richard A.
Caban, sustained bodily injuries in an accident arising out of the
maintenance or use of a motor vehicle as defined in the aforesaid
PMVFRL.
22. Pursuant to PMVFRL S1713, (a.) (4) defendant
Cressler must provide first part benefits to plaintiff, Richard A.
Caban.
23. subsequent to the aforesaid accident, plaintiff,
Richard A. Caban, applied for allowable expenses pursuant to and in
accordance with said PMVFRL.
24. FOllowing the accident, plaintiff, Richard A. Caban,
did from time to time thereafter submit to defendant, Cressler, in
writing the amount of allowable expenses incurred, inCluding the
following which have not been paid:
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May-12-00 07:07A Cr~sslers Trucking
7',5322051
P.07
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Carlisle Hospital (ER)
RWC Corp.
Carlisle Imaging Associates
Carlisle Hospital
RWC Corp.
Carlisle Hospital
RWC Corp.
David C. Baker, MD
Penn's Wood Physical
carlisle Hospital
Moffit, Pease and Lim(EKG)
Carlisle Hospital
Blue Mountain Anesthesia
West Shore EMS
prescriptions
Wage Loss
$408.00
$220.00
$90.00
$226.00
$140.00
$19.00
$140.00
$2,151. 00
Therapy
$130.00
$30.00
$4,256.02
$1,040.00
$42.30
$74.50
$8,846.25
25. As a result of the failure of defendant, CreSSler,
to pay first party benefits, plaintiff, Richard A. Caban, has been
forced to incur attorney fees and legal expenses in an effort to
collect the amount that is now past due.
26. Plaintiff believes and therefore alleges that
defendant, Cressler, may refuse payment of other allowable expenses
which become overdue after commencement of this suit and therefore,
seeks payment of same as they become due.
27. In accordance with the provisions of the PMVFRL.
S1701, et. seq., plaintiff is entitled to payment for the aforesaid
allowable expenses.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
COUNT III:
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC.
(BAD FAITH I
28. paragraphs 1 through 27 are incorporated herein as
though the same were here set forth at length.
29. 42 Pa. C.S.A. S8371 provides that an action arising
under an insurance policy may be brought by the insured if the
insurer has acted in bad faith towards the insured.
30. Defendant, Cressler, has violated this Act by
engaging in bad faith towards Richard A. Caban in the following
manner:
(a) representing that defendant, cressler! provide~,
as a self-insured, medical benefits and wage loss benefIts when 1n
fact said promise was wholly illusory;
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7",5'3220'51
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(b) purporting to offer medical coverage and/or wage
coverage when in fact, defendant, cressler, had no intention of
providing medical coverage for Mr. Caban's injuries;
(c) denying plaintiff, Richard A. caban, medical
benefits and/or wage loss benefits without a reasonable basis; (d)
denying plaintiff, Richard A. Caban, medical benefits and/or wage
loss benefits with knowledge or reckless disregard that such denial
was without reasonable basis.
31. Plaintiff, Richard A. Caban, hereby requests damages
as provided in S8371 of said Act, including but not limited to the
following:
(a) interest in an amount of claim for the date the
claim was made to the amount of interest plus 3%;
(b) punitive damages against defendant, Cressler;
(c) court costs and attorneys fees against defendant,
Cressler.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
COUNT IV
RICHARD A. CABAN VB. CRESSLER TRUCKING. INC.
(UNFAIR TRADE PRACTICESl
32. Paragraphs 1 through 31 are incorporated herein as
though the same were here set forth at length.
33. The purpose of the Unfair Trade Practices and
Consumer Protection Law, codified at 73 P.S. S201-2, et seq., is to
"benef it the public at large by eradicating among other things,
unfair or deceptive business practices."
34. Defendant, Cressler, has violated said act by
engaging in unfair acts and/or deceptive practices.
35. Such unfair acts and/or deceptive practices include,
but are not limited to:
(a) representing the defendant Cressler prov~des as
a self-insured medical benefits and/or wage loss benef~ts to
Richard A. cab;n, when in fact said promise was wholly illusory;
(b) purporting to offer medical coverag,,: and/o,r wage
coverage when in fact, defendant, Cressler, had, no IntentIon of
providing medical coverage for Mr. Caban's injurIes;
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May-12-00 07:0SA CrF--;;;lers Trucking
7'75322'051
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(c)
created a likelihood
Richard A. Caban.
engaging in other fraudulent conduct which
of confusion or misunderstanding to plaintiff,
36. 73 P.S. S201-9.2 specifically provides for private
actions to be brought for violations of said Act, including actions
against insurance carriers and/or self-insured entities.
37. Due to violations of said Act, plaintiff, Richard A.
Caban, is rightfully entitled to three times his actual damages
sustained as provided in 73 P.S. S201-9.2, in addition to such
additional relief as this Honorable Court deems necessary or
proper.
WHEREFORE, plaintiff demands judgement against the defendant,
Cressler Trucking, Inc., in a sum in excess of twenty-five thousand
dollars, plus costs, interests, attorney fees and damages for delay
as provided by law.
KRAFT &
KRAFT, P.C.
L
Dated:
'/ hi I 00
----
/1
mes M. DeSanto, Esquire
torney for Plaintiff
P.09
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VERIFICATION
James M. DeSanto, Esquire, hereby states that he is the
attorney for the Plaintiff(s) in this action and verifies that the
statements made in the foregoing pleading are true and correct to
the best of his knowledge, information and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa. C. S. S4904 relating to
unsworn falsification to authorities.
Dated:
~ /1-1[00
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Preliminary
Objections of Defendants to Plaintiff's Complaint, has been served on all parties of interest by
placing the same in the United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania
on this 22nd day of May, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
-tYJWu..o ~. ndfl fL Q .
..
PRAECIPE FOR LlSTI?'iG CASE FOR ARGU~lE?'iT
l~lust be typewritten :lIld submitted in duplic:lte j
TO THE PROTHONOT.~RY, OF CDIBERL\.ND COC?'iTY:
,
Please list the within matter for :he next:
~
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L P=e.T!i:ll..1J'gum~nt C0un
~ .~gument Court
_ T_
----------------------------------------------------------
CAPTION OF CASE
(entire caption must be,stated in full)
Richard A. Caban,'
(plain tiff)
Ys.
Charles Etherton, Jr., and
Cressler Trucking,
(Defendant)
Ys.
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Civil
1. State matter to be arg'.led (I. e., plaintiffs motion for new trial.
d~feudanfs d~urrer to comtllaint, etc.):
Uetendant s Prelimiriary Objections to Plaintiff's Complaint
~ Identify counsel wb.o will argue c:lSe:
(a) for plaintiff: James M. DeSanto, Esquire
(b) for defendant: ThanasA. Lang, Esquire.
3. I will notify all p~es in writmg \v1:b.in tWO days that ':his ~:lSe has been
listed for ltgumem. ..:.
4.
July 26, 2000
Date:~
i)l..ttorney for Def
Argument Court Date:
Call of Argument List
Dated:
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe for
Listing Case For Argument, has been served on all parties of interest by placing the same in the
United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this 22nd day of
May, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
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RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
PRAECIPE TO SUBSTITUTE VERIFICATION
TO THE PROTHONOTARY:
Kindly substitute the attached Verification of Connie Shoemaker of Cressler Trucking, Inc.
for that of the undersigned counsel, Thomas A. Lang, Esquire attached to Defendants' Answer and
New Matter to Plaintiff's Second Amended Civil Action Complaint in the above-captioned action.
Peters & Wasilefski
By:
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Attorney for Defendants,
Charles Etherton, Jr. and
Cressler Trucking, Inc.,
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VERIFICATION
I hereby affirm that the following facts are correct:
I am the Defendant in this matter. The attached Answer and New Matter to
Plaintiff's Second Amended Civil Action Complaint is based upon information which I have
furnished to my counsel and information which has been gathered by my counsel in the preparation
of the lawsuit. The language of the Answer and New Matter to Plaintiff's Second Amended Civil
Action Complaint is that of counsel and not of me. I have read the Answer and New Matter to
Plaintiff's Second Amended Civil Action Complaint and to the extent that the same is based upon
information which I have given to my counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent that the content of the Answer and New Matter to Plaintiff's
Second Amended Civil Action Complaint is that of counsel, I have relied upon counsel in making
this Verification. I hereby acknowledge that the facts set forth in the aforesaid Answer and New
Matter to Plaintiff's Second Amended Civil Action Complaint are made subject to the penalties of
18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
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Connie S oemaker, Cressler Trncking, InC~
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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe to
Substitute Verification, has been served on all parties of interest by placing the same in the
United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this 18th day of
January, 2000, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pellllsylvania 19107
Peters & Wasilefski
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RICHARD A. CABAN,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CHARLES ETHERTON, JR., and
CRESSLER TRUCKING,
Defendants
NO: 00-2672 CIVIL TERM
PRAECIPE TO ADD VERIFICATION
TO THE PROTHONOTARY:
Kindly add the attached Verification of Charles Etherton, Jr. to Defendants' Answer and
New Matter to Plaintiff's Second Amended Civil Action Complaint in the above-captioned action.
Peters & Wasilefski
By:
Thomas ~.:~ e
Attor~!,5~
2931 North Front Street
Harrisburg, PA l7110
717-238-7555
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Attorney for Defendants,
Charles Etherton, Jr. and
Cressler Trucking, Inc.,
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VERIFICATION
I hereby affirm that the following facts are correct:
I am the Defendant in this matter. The attached Answer and New Matter to
Plaintiff's Second Amended Civil Action Complaint is based upon information which I have
furnished to my counsel and information which has been gathered by my counsel in the preparation
of the lawsuit. The language of the Answer and New Matter to Plaintiff's Second Amended Civil
Action Complaint is that of counsel and not of me. I have read the Answer and New Matter to
Plaintiff's Second Amended Civil Action Complaint and to the extent that the same is based upon
information which I have given to my counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent that the content of the Answer and New Matter to Plaintiff's
Second Amended Civil Action Complaint is that of counsel, I have relied upon counsel in making
this Verification. I hereby acknowledge that the facts set forth in the aforesaid Answer and New
Matter to Plaintiff's Second Amended Civil Action Complaint are made subject to the penalties of
18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
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Charles Etherton, Ir.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe to
Add Verification, has been served on all parties of interest by placing the same in the United
States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this 29th day of January,
2001, and addressed as follows:
James DeSanto, Esquire
Kraft & Kraft, P.C.
1311 Spruce Street
Philadelphia, Pennsylvania 19107
Peters & Wasilefski
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
CIVIL ACTION AT LAW
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NO. Og-Jg7~ CIVIL TERM
PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANTS
29. -41.
The averments contained in these paragraphs contain
conclusions of law to which no response is required. To the extent
that the averments in these paragraphs are factual averments, after
reasonable investigation, Plaintiff is without knowledge sufficient
to form a belief as to the truth or falsity of said averments and
they are therefore denied with strict proof thereof demanded at the
time of trial.
KRAFT & KRAFT, P.C.
Dated:
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DeSanto, Esquire
:for Plaintiff
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VERIFICATION
James M. DeSanto, Esquire, hereby states that he is the
attorney for the Plaintiff(s) in this action and verifies that the
statements made in the foregoing pleading are true and correct to
the best of his knowledge, information and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa, C.S. S4904 relating to
unsworn falsification to authorities.
Dated:
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RICHARD A. CABAN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
00-2672 CIVIL
CHARLES ETHERTON, JR. and
CRESSLER TRUCKING, INC.,
Defendants
IN RE: PLAINTIFF'S MOTION TO COMPEL
ORDER
AND NOW, this
I-{.... day of February, 2002, a rule is issued on the defendant,
Charles Etherton, Jr., to show cause why he should not be ordered to attend a deposition at a time
and place designated by counsel for the plaintiff. Said deposition to be scheduled not less than
thirty (30) days from the date of the mailing of notice thereof.
This rule returnable twenty (20) days after service.
BY THE COURT,
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FEB 0 4 2002 ~
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KRAFT & KRAFT, P.C.
BY: trames M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
j,
NO. 00-267& CIVIL TERM
ORDER
AND NOW, this
day of
, 2002, upon consideration
of the Motion of Plaintiff to Compel the Deposition of Defendant,
Charles Etherton, Jr., it is hereby ORDERED, ADJUDGED and DECREED
that defendant, Charles Etherton, Jr., shall attend bring with him
the documents listed in the Notice of Deposition and testify at a
deposition scheduled by the plaintiff within twenty (20) days of
the date hereof or suffer the imposition of sanctions.
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BY THE COURT:
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KRAFT & KRAFT, P.C.
BY: 'James M. DeSanto, Esquire
Attorney No. 49442
1311 Spruce Street
Philadelphia, PA 19107
(215) 546-5100
Attorney for Plaintiff(s)
RICHARD A. CABAN
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
vs.
CIVIL ACTION AT LAW
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
NO. 00-2676 CIVIL TERM
MOTION OF PLAINTIFF TO cm~PEL THE DEPOSITION OF DEFENDAN'1'.
CHARLES ETHERTON. JR.
Plaintiff, Richard Caban, by and through his attorney,
James M. DeSanto, Esquire, hereby moves this Honorable Court for an
Order compelling defendant, Charles Etherton, Jr., to attend and
testify at a deposition scheduled by plaintiff in connection with
this matter and in support thereof sets forth the following
grounds:
1. This matter arises out of a motor vehicle accident
which occurred on May 21, 1999.
2. The complaint in this matter was filed on or about
May 1, 2000.
3. The attorney for plaintiff has been attempting to
schedule depositions in this matter since August 20, 2001 by
leaving various phone messages and also by correspondence.
4. Defense counsel has yet to supply counsel for
plaintiff with any dates upon which the depositions in this matter
could be, scheduled.
5. Plaintiff will be severely prejudice in his
preparation of this case if the defendant, Charles Etherton, Jr.,
is not compelled to attend a deposition and testify as to the
happening of the accident.
WHEREFORE, plaintiff, Richard Caban, prays that this
Court Order that defendant, Charles Etherton, Jr., appear and
testify at a deposition scheduled by plaintiff within twenty (20)
days after the entry of this Order or suffer the imposition of
sanctions.
KRAFT & KRAFT, P.C.
B9~s :: ~ Esquire
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VERIFICATION
James M. DeSanto, Esquire, hereby states that he is the
attorney for the Plaintiff(s) in this action and verifies that the
statements made in the foregoing pleading are true and correct to
the best of his knowledge, information and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa. C.S. S4904 relating to
unsworn falsification to authorities.
Dated:
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KRAFT & KRAFT, P.C.
BY: James M. DeSanto, Esquire
Attorney No. 49442
1311 spruce Street
Philadelphia, PA 19107
(215) 546-5100
RICHARD A. CABAN
VS.
CHARLES ETHERTON, JR.
and
CRESSLER TRUCKING, INC.
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COURT OF COMMON PLEAS
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CIVIL ACTION AT LAW
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NO. oo-~ CIVIL TERM
ORDER TO SETTLE. DISCONTINUE AND END
TO THE PROTHONOTARY:
Kindly mark the above matter settled, discontinued, and ended,
upon payment of your costs only.
KRAFT & KRAFT, P.C.
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DeSanto, Esquire
for Plaintiff
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