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HomeMy WebLinkAbout01-5689HARVEY CARTER and DORIS CARTER, His Wife, Plaintiffs JOHN JUDSON CLAXTON and BOBBY D. JUDY t/d/b/a COWBOY TRUCKING, Defendants 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION- LAW NO. t~]_ 5~.,b~ '~ JURY TRIAL DEMANDED NOTICE TO DEFEND 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 attomey 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 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 LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiem defenderse de estas demandas expuestas en las paginas sugnuientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 236515.1 ~VlEK\MMM HARVEY CARTER and DORIS CARTER, His Wife, Plaintiffs JOHN JUDSON CLAXTON and BOBBY D. JUDY t/dPola COWBOY TRUCKING, Defendants : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. : CIVIL ACTION o LAW : NO. JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs Harvey and Doris Carter are husband and wife adult individuals who are citizens of the Commonwealth of Pennsylvania and who reside at 2020 Chevy Chase Drive, Harrisburg, Dauphin County, Pennsylvania 17110. 2. Defendant John Judson Claxton is an adult individual and citizen of the of the State of Oklahoma who resides at RR 2, Box 47, Wilson, Carter County, Oklahoma 73463. 3. Defendant Bobby D. Judy t/d/b/a Cowboy Trucking is an adult individual and citizen of the of the State of Oklahoma who resides at 10305 Glasgow Drive, Yucon, Oklahoma 73099. 4. The facts and occurrences hereinafter related took place on Monday, October 4, 1999 at approximately 6:00 p.m. on Interstate 81 southbound in East Pennsboro Township, Cumberland County, Permsylvania. 5. Interstate 81 in the area of the accident is a six lane highway with three southbound and three northbound highways and is relatively straight and flat with concrete barriers in the center median and on the right shoulder. 6. At that time and place, Plaintiff Harvey Carter was operat'mg his motor vehicle, a 1987 Audi 4000 southbound on Interstate 81 in the right lane below the posted speed limit of 55 miles per hour. 203638.1hMEK\MMM 7. At that time and place, Defendant John Judson Claxton was operating a 1994 Kenworth tractor pulling a flatbed trailer southbound in the center lane. 8. The tractor and trailer being operated by Defendant John Judson Claxton was owned by Bobby D. Judy t/d/b/a Cowboy Tracking. 9. At that time and place, Defendant Claxton moved from the center southbound lane into the right southbound lane which was occupied by Plaintiff Harvey Carter. 10. Defendant Claxton did not signal his intention to move from the center to the right lane nor did he check to see whether Plaintiff Harvey Carter's car had been passed but merely merged ino the right-hand lane striking Mr. Carter's vehicle with the right rear tandem of the tractor causing Mr. Carter to lose control and strike the concrete barrier offto the north side of the highway. 11. Plaintiff Harvey Carter's car struck the barrier and then came back into the highway at which point it was struck again by the trailer being pulled by Defendant Claxton within the scope and course of his employment with Defendant Judy t/clPo/a Cowboy Trucking. 12. The rear trailer wheels of the Defendant's trailer then overrode Mr. Carter's car after which Mr. Carter's car came to rest in the fight southbound lane. 13. In spite of the two impacts with Mr. Carter's car, Defendant Claxton did not stop the tractor-trailer but continued southbound on Interstate 81 thereby leaving the scene of the accident. 14. A witness to the accident followed Defendant Claxton and signaled him to pull over a short distance south of where the accident occurred. 15. Upon it being advised that an accident occurred, Defendant Claxton became abusive and returned to his truck and continued southbound failing to wait near the scene of the accident or returning to the scene of the accident where Mr. Carter's car came to rest. 236515 1 \MEKLMMM 16. As a result of the violent collisions between Defendant Claxton's tractor-trailer and Mr. Carter's car as well as Mr. Carter being thrown into the concrete barrier, he sustained serious and permanent injuries which are set forth hereinafter. COUNT I HARVEY CARTER AND DORIS CARTER, HIS WIFE V. JOHN JUDSON CLAXTON AND BOBBY D. JUDY T/D/B/A COWBOY TRUCKING 17. Paragraphs 1 through 16 are incorporated herein by reference. 18. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by Plaintiffs Harvey and Doris Carter are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendant John Judson Claxton's operating the tractor-trailer in the course and scope of his employment for Bobby D. Judy t/d/b/a Cowbow Trucking as follows: (a) failure to have his vehicle under such control as to be able to stay within his proper lane of travel and avoid other vehicles la;vfiflly on the highway; (b) failure to keep alert and maintain a proper watch for the presence of other motor vehicles on the highway; (c) failure to stay within his lane of travel when passing another vehicle proceeding in the same direction (d) failing to remain in his lane of travel until safely clear of the Plaintiff's vehicle in violation of 75 Pa.C.S.A. §3303(a); (e) failing to signal his intention to change lanes before attempting to change from the center to the right lane which Plaintiff Harvey Carter was properly proceeding in violation of 75 Pa.C.S.A. §3303(b); (f) failing to drive within a single-lane of travel and attempting to move from his center lane of travel before ascertaining that the movement could be made with safety, in violation of 75 Pa.C.S.A. §3309(1); (g) failure to travel at a safe speed; 236515.1WiEKLMMM (h) failure to yield the right-of-way to Plaintiffs vehicle; (i) failure to drive his vehicle with due regard for the highway and traffic conditions which were existing and of which he was or should have been aware; 0) failing to stop at the scene of the accident involving property damage and probably personal injuries to give information and render aid in violation of 75 Pa.C.S.A. §3743, 3744; and (k) driving his vehicle upon the highway in a manner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. COUNT II - NEGLIGENT ENTRUSTMENT HARVEY CARTER AND DORIS CARTER, HIS WIFE V. BOBBY D. JUDY T/D/B/A COWBOY TRUCK1NG 19. Paragraphs 1 through 17 are incorporated herein by reference. 20. The aforementioned accident and all of the injuries and damages set forth hereinafter sustained by Plaintiff Harvey Carter are the direct and proximate result of the negligent, careless, wanton, and reckless manner in which Defendant Bobby D. Judy t/d/b/a Cowboy Tracking employed Defendant John Judson Claxton and entrusted Defendant Claxton with the tractor-trailer by doing so in the following manner: (a) Hiring and retaining an employee to transport goods whom it was aware or should have been aware was not competent and qualified to operate a tractor- trailer safely on the highways and who did not exemise the increased care and precautions necessary with a transportation vehicle; (b) Failing to properly train and inslxuct its driver in the proper manner of safely operating its vehicle; (c) Hiring, instructing and retaining its operator in a manner which endangers persons and property without due regard for the rights and safety of others on the highway and in violation of the Pennsylvania 236515.1 \MEK\MMM (d) Motor Vehicle Code; and Permitting Defendant Claxton to operate its tractor-trailer although it knew or should have known that he was careless or reckless in the operation of a large commercial vehicle. CLAIM I HARVEY CARTER V. JOHN JUDSON CLAXTON AND BOBBY D. JUDY T/D/B/A COWBOY TRUCKING 21. Paragraphs 1 through 19 of the Complaint are incorporated herein by reference 22. Plaintiff Harvey Carter sustained painful and severe injuries which include but are not limited to cervical strain, chest contusion, headache, lumbar sprain and herniated disc in his lumbar spine with radicular symptoms into both legs which will require surgery. 23. By reason of the aforesaid injuries sustained by Plaintiff Harvey Carter, he was forced to incur liability for medical treatment, medications, hospitalizations and similar miscellaneous expenses in an effort to restore him to health, and claim is made therefor. 24. Because of the nature of his injuries, Plaintiff Harvey Carter has been advised and, therefore, avers that he may be forced to incur similar expenses in the future, and claim is made therefor. 25. As a result of the aforementioned injuries, Plaintiff Harvey Carter has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out his/her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 26. As a result of the aforesaid injuries, Plaintiff Harvey Carter has been and in the future will be subject to great humiliation and embarrassment, and claim is made therefor. 236515.1 ~vlEK\MMM 27. As a result of the aforesaid injuries, Plaintiff Harvey Carter has sustained uncompensated work loss, and claim is made therefor. 28. As a result of the aforementioned injuries, Plaintiff Harvey Carter has sustained work loss, loss of opportunity and a permanent diminution of his earning power and capacity, and claim is made therefor. 29. Plaintiff Harvey Carter continues to be plagued by persistent pain and limitation and, therefore, avers that his injuries may be of a permanent nature, causing residual problems for the remainder of his/her lifetime, and claim is made therefor. 30. As a result of the aforesaid accident, Plaintiff Harvey Carter has sustained scars which will result in a permanent disfigurement, and claim is made therefor. WHEREFORE, Plaintiffs demand judgment against Defendants in an amount in excess of Twenty-Five Thousand $25,000 Dollars exclusive of interest and costs and in excess of any jurisdictional aJnount requiring compulsory arbitration. CLAIM II DORIS CARTER V. JOHN JUDSON CLAXTON AND BOBBY D. JUDY T/D/B/A COWBOY TRUCKING 31. Paragraphs 1 through 30 of the Complaint are incorporated herein by reference. 32. As a result of the aforementioned injuries sustained by her husband, Plaintiff Harvey Carter, Plaintiff Doris Carter has been and may in the future be deprived of the care, companionship, consortium, and society of her husband, all of which will be to her great detriment, and claim is made therefor. 236515.1 \MEK\MMM WHEREFORE, Plaintiff Doris Carter demand judgment against Defendants in an amount in excess of Twenty-Five Thousand $25,000 Dollars exclusive of interest and costs and in excess of any jurisdictional mount requiring compulsory arbitration. -, ~ Michael E. Kosik I.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 236515.1W!EK\MMM VERIFICATION I, HARVEY CARTER, do hereby swear and affirm that the facts set forth in the foregoing Complaint are tree and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of the Rules of Civil Procedure relating to unswom falsification to authorities. h , Dated: ~'~'-~I ~ ~ g..oo I / · 'HA~E~/'CARTER ' Sworn to and subscribed before me this Z ~W~clay o ~ 2001. Public My Commission Expires: Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail; se.q~tthlaw.com Attorneys for Defendants: JOHN JUDSON CLAXTON and BOBBY D. JUDY tJd/b/a COWBOY TRUCKING HARVEY CARTER and DORIS CARTER, his wife, Plaintiffs JOHN JUDSON CLAXTON and BOBBY D. JUDY t/d/b/a COWBOY TRUCKING, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW NO. 01-5689 CIVIL JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEA~%NCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Defendants, John Judson Claxton and Bobby D. Judy t/d/b/a Cowboy Trucking, in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiffs' Complaint. Respectfully submitted, : 146026.1 THOMAS, THOMAS & H~tFER, LLP Attorney I.D. No. 43530 Attorneys for Defendants, JOHN JUDSON CLAXTON and BOBBY D. JUDY, t/d/b/a COWBOY TRUCKING CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the {J~-~ day of October, 2001, on all counsel of record as follows: Michael E. Kosik, Esquire ANGINO & ROVNER 4503 North Front Street Harrisburg, Pennsylvania Attorneys for Plaintiffs 17110-1799 THOMAS, THOMAS & HA~ER, LLP :146027.1 Stephen E. Geduldig, Esquire HARVEY CARTER and DORIS CARTER, His Wife, Plaintiffs JOHN JUDSON CLAXTON and BOBBY D. JUDY tYd/bla COWBOY TRUCKING, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 01-5689 : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 1st day of October, 2001 a tree and correct copy of the Complaint Civil Action No. 01-5689 -ams mailed to Bobby D. Judy, fid/b/sa Cowboy Trucking. by certified mail, return receipt requested at 10305 Glasgow Drive, Yukon, OK 73099. A copy of the certified mail receipt 7001 1940 0001 2183 6797 is attached hereto. ' Mich~l~e~ MJ Miloj~vich / ACCEPTANCE OF SERVICE This is to certify that on the 5th day of October, 2001, a tree and correct copy of the above-noted Complaint was served upon the Defendant via certified mail, return receipt requested at the above-noted address. A copy of the signed receipt No: 7001 1940 0001 2183 6797 is attached hereto. Sworn to and subscribed before me this / ~-flO day of~__, 2001. NoiSy Public · '~ Michelle }¢I. M'il0je{,i~h ~JO F F ¢ I.A L L) $ EI ~ $ · ComPlete Iterr~ 1, 2, and 3. Also complete it~m 4 if Fl~trtot~ D~Iv~/i~ deslrtKI. · Pdnt your n~m* m~l ~;~lr~s on ~he mverse so that~ can tatum the card to you. · Attach~ to the back of the mailpiece, or on t _h~?,~ If space permits. OK 78o ? I ;~'Ce~f{ed Mall r'l Expre~e Mail ~ [] Registered ~J~Retum Receipt for Memhandlae i'q Insured M~I "[] C.O.D. 4. R~stricted D~ive~y? (Extra Fee) rq Yes 2. Nticte Number 7001 1940 0001 2183 6?97 HARVEY CARTER and DORIS CARTER, His Wife, Plaintiffs JOHN JUDSON CLAXTON and BOBBY D. JUDY tYdgo/a COWBOY TRUCKING, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. . CIVIL ACTION - LAW NO. 01-5689 : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 1st day of October, 2001 a tree and correct copy of the Complaint Civil Action No. 01-5689 was mailed to John Judson Claxton by certified mail, remm receipt requested at 10305 RR 2, Box 47, Wilson, OK 73463. A copy of the certified mail receipt 7001 1940 0001 2183 6780 is attached hereto. ' ' ']Vlichelle~ M. Milojev{ch ACCEPTANCE OF SERVICE This is to certify that on the 11h day of October, 2001, a tree and correct copy of the above-noted Complaint was served upon the Defendant via certified mail, return receipt requested at the above-noted address. A copy of the signed receipt No: 7001 1940 0001 2183 6780 is attached hereto. Sworn to and subscribed before me this 2~r~ day of 01('~-¢3[5t, t(, 2001. Not~y Public Michelle M. Milojevi~h tAL USE · Complete Iten~ 1: 2, and 3. AJ~o comple~ · print your narne and addmaa on the reverse so that we can return the card to you. · Attach this card to the bac~ of the mat~, or on the front if space permits. , OK C. Signature ~r,~?~9~ :_ 7D1:)1,,,, t940 0001 2183 678D PS Form 3811, March 2001 Domestic Return Receipt f O~ .~Retum Receipt for Memhencltse r'~ Insured Mall '0 C,O.D. 4. Restricted Delivery? (Extra Fee) [] Yes HARVEY CARTER and DORIS CARTER, His Wife, Plaintiffs JOHN JUDSON CLAXTON and BOBBY D. JUDY ffd/b/a COWBOY TRUCKING, Defendants 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 01-5689 CIVIL JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned action as settled, satisfied, and discontinued. ER, P.C. Michael E. Kosik I.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff DATED: 9/26/03 cc: Stephen E. Geduldig, Esquire 266233.1 ~VlEKLMMM