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July 10, I!1.11
lIyin!.\. Under cover lellel' dolled June Iii, "1')7, I )ct~ndant. well i/l mlvall(:e of 1 his secund
vi~ilalion, plllpll~t~d Ih~1 Ilw panics drivc Ille clrild Irallivay 10 aCI'onUtllldale his fc," ot'"
flying Said 1,,11<'1' :Ula"'1I'd hcrelo as EX II III IT :\ Dclclldanl n~l:ei\'l'd ntl r<',pOIl;,.: 1"
thl~ leite, ulllillhc lirsl \\cck UI Jul\'
8. Admillrd. J)c1~lJ(lo1nl Jellil:y S Hugl:nduuler has prepared for this visilalion sinel' JUIlI' .
1997, h,lS 1l1(';"lJIcd lhe hallivay diSlance poinl, and mold., hOld rcsc,valiolls Dcklldalll
ha~ al'l'all(lcd Ihe trip so Ihal lire child is available tell' visilalion on Jul~' 1R, I ()\)7, ;11
Slalcsville, Nonh Carohna, on.' day prior 10 Ihe origillally schedulcd visiration
I). Denied, Aller J(~lsonable inwsligal;on, Ilelllndanl is wilholll knowledge or inlell lIIali,'n
~llmcicnllo 1(llm a belief as 10 Ihe 111J1h Ih.'reof and proof is d.'m;ulded ,11 I,i.ll IIL),\ C' "1,
It ha~ becn 'CI"escllll'd hy PI:lluIIll's counsd Ihal said tickel has Iw"n purchased
10. Admillcd. Pit'ilSC see rcspon~e 10 p,uaglaph '/ The child may be a\'ailal>le for Ihe CIIllll
10 expre~s 11I~ concern~
11 Admillrd, It is ill1punanl 10 nOlC Ihallhis has been it dinicult ca~e liollllhe beginnin~
Plaint ill: Kalhleen Rodl'. sought viSitation wilh her son allcr a Iwo (2) year ab~ellce rlOlll
hi51ilc Ja~OIl Illlgl'IIlllll>lc/ h,"1>1I/5 ill \ViII IowaI'd hl5 lII11tlwr which makt~s ViS'I;lIll1l1 a
diITi.~ully lor him II should bc d".lI lh;1t .1I11111imc hilS Dclclldalll Jcllic\' S IlllgClltlul>lc1
objected III \'isi':lIilln 111.1..",1, Ill' has gOllc 11111 of his way 10 accorlllllod,I\,' 11>(. '"'l'lb llt'
Ihc child and I'lailllll1: 'ncJllrlillg larwaldillg pOlcllliid 10,;1\;0115 Illl hCI \0 stay whclI
wlllillg 1\) Harrishllrg, :In:lllgillg a Ill'lltr;d Sil" tl)r Ihe child and l11111hcr's firSII11Celill,'"
all<llryillg tll ca~e Ihis ploce~s III Ihe besl of his abilily Thc dc~ire 10 drive fur Ihis
Visil:llloll has 1101 lwen an allcl11p' to hlol~k v,silallOn, hilI .11\ altCl11pl 10 aCCOI11I11(ldale
Jasollllugl~ndllbler's nccds and li:01l~ in ~JI\Olllhillg Ihis transitiOIl Dcfendant has always
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int~I\I~ntillll To II all' , !'llIinlilT hilS Iclu~ed tll disl'uss till' Sit\llltillll direction Wllh
Defcml:lnl
Respectfully SUblllill"d,
IH~AGEH.1i< AIlI.t:lt. I'C
Datc. Jul~ 10,1997
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By .[, I'u... ~L-(,'( (,~)ty' ,,' '
Od(lItA Ih:~IS()N CANTOn. ESQllmr
'^Ilorncy'\ \) NIl (,(,:\'Ill
2331 t\llIrk~1 Slicet
Catllp Hill, Jli\ 170\ I-4M2
Telephollc No (7171 763 \J1l3
Allorncys for Dcfendant
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CElrrIFlfj\TE ()1:'~EIWlq;
ofthc filrcgoing Defendant's Rl'sponsc to "laintit1's l'Il1('rt:cncy Pl'lilion 10 RC$olvc Tran'pUrI,Hilln I.s,,,'
in Upcoming Vi~ilalion 10 b" "'nl via nlCSilllilc to (717) ;>)) (,7.10 and III he placed in Ihe lJS 111,lil, 1'",1
class, postage plcpaid and addressed as 1(,lIo\\,s
Jllhn R I.un;u iell, Esquil C
SK:\IU,A TOS &. ZONARICII
70,1 Slaw Street
1I.."isbur!!" (lA 17101
Respectfully SUOll1illCd,
By
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Camp lIill, PA 17011-4647,
Telephone No 1717176,1-1:;~:;
Attorneys fUI Dcli:ndanl
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SKARl4TOS ~ ZONARICH J AN 08 1997
ATTORNEYS AT LAw' ~
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KATIII.EEN HODE,
: IN TIlE COUHT OF COMMON PI.EAS
: CUMBEHI.AND COUNTY, PENNSYL VANIA
Plainti/l'
vs,
: NO, TEHM 1996
: CIVIl. ACTION -I.A W
q)- 7J/ t4-"j\~~/I'
JEFFREY S,IIUGENDUBI.EH,
Delendant
ORDER OF COURT
AND NOW, upon consideration of the attached Complaint, it is hereby directed that the
parties and their respective counsel appear before (1 ,( ~ ~ f I L, &..t I {If: the Conciliator, on
the I S day of 1=f L, . 1997, at ~ o'clock 1.\...m" at'S 0 2. ~ , g f~
$ t, (4,., I' H,' 1/ ' Pennsylvania lor a Pre-Ilearing Custody Conference, At such
,
Conference, an eflort will be made to resolve the issues in dispute; or if this cannot be
accomplished, to define .Uld narrow the issues to be heard by thc Court. and to enter into a
Temporary Order. All chiidren ages live or older may also be present at the Conlerence, Failure to
appear at the Conferencc may provide grounds for the entry of a temporary or penn anent Order,
Datc of Order:
1-, ~ '1/
FOR THE COURT,
By: ~1;1-7(/.-j gc;~ '-''x,
Custody Conciliatorlo/ I
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT
HA VE A LA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WIIERE YOU CAN GET LEGAL HELP.
COURT ADMINISTHATOH
Cumberland County Courthouse. 4'10 Fir,
I Courthouse Square
Carlisle, Pennsylvania 17013-3387
(717) 240-6200
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Plaintilf
. \N THE COURT OF COMMON PLEAS
. CLJMBERLANDCOUNTY, PENNSYLVANIA
. .; I
. NO. (/7. '1'/ (TERM 1Qt.ltl
. CIVIL ACTION - LAW
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KATHLEEN RODE,
vs,
JEFFREY s, HUGENDUBLER.
Defendant
COMPLAINT FOR VISITATION
\, The Plaintiff is KATHLEEN RODE, an adult individual residing at 2512 Bridgeboro Street,
Albany, Georgia 3\705-4338.
2, The Defendant is JEFFREY s, HUGENDUBLER. an adult individual currently residing at 15
Bourbon Red Drive, Mechanicsburg, PA 17055.
3, Plaintiff seeks visitation of the following child.
Name
Present Residence
Age
Jason S. Hugendubler
15 Bourbon Red Drive
Mechanicsburg, PA 17055
9
4. Since birth the child, JASON S. HUGENDUBLER has resided with the following persons
and at the following addresses
NAMES ADDRESSES DATE
Jeffrey S, & Donna 15 Bourbon Red Drive 9/88
Hugendubler Mechanicsburg, PA 17055 current
Jeffrey S, & Kathleen 14 Old Farm Road 2/24/87 -
Hugendubler Lugoff, South Carolina 9/88
5. The relationship of Plaintiff, KATHLEEN RODE, to the child, JASON S,
HUGENDUBLER. is that of mother. The relationship of Defendant, JEFFREY S.
HUGENDUBLER. to the child, JASON S. HUGENDUBLER. is that off ather,
6. Plaintiff requests the following periods of visitation: One month visitation between June
I" and August 31" each year at her place of residence, Two weeks of visitation during the Christmas
holidays - beginning Christmas 1997 and alternating yearly. Holiday visitation to be consistent with the
school holiday schedule, And any other time that the parties mutual agree is convenient fhr visitation.
7, Excepting lor the Divorce Decrec, dated March 20, 1989, in the state of South Carolina,
Kershaw County, neither Plaintiff nor Defendant has participated as a party or witness, or in another
capacity, in other litigation concerning the custody of the child in this or another Court.
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8. Plaintiff has no information of a custody proceeding concerning this child pending in a Coun
of the Commonwealth.
9. PlaintitTdocs not know ofa person not a pany to the proceedings who has physical custody of
the child or claims to have custody or visitation rights with respcctto the child.
10. The best interests and pernlanent welfare of the child will be scIVed by granting the relief
requested because:
a. The child necds to maintain an established visitation with his mother.
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WHEREFORE, Plaintiff requests this Honorable Coun to enter a final Order granting
the requested visitation of JASON S. HUGENDUBLER to Plaintiff
Respectfully submilled,
Date: 12/31/96
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VERIFICATION
I verify that the statements made in this Complaint are true and correct. I understand that fillsc
statements herein are made subject to the penalties of 18 PaCS. ~4904. relating to unswom
Iillsification to authorities,
'-/(/1 I /"&''t;",J )~L:l.J
KATHLEEN RODE, Plaintiff
Date: 12/31/96
KATHLEEN RODE,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs,
NO. 97-74 CIVIL TERM
JEFFREY S. HUGENDUBLER,
Defendant
CIVIL ACTION - LAW
ORDER
AND NOW, this ~ day of -Mr.A.X
-
, 1997, upon receipt
of the Conciliator's Report, it appearing that the parties have agreed to the terms
and provisions of this Order which was dictated in the presence of Plaintiff's
counsel, John R, Zonarich, and Defendant and his counsel, Debra A, Denison, it is
hereby ordered and directed as follows:
1, The parties shall share legal custody of their minor child,
Jason S, Hugendubler, d,o,b, February 24, 1987.
2, Father shall have primary physical custody of the minor child
subject to the following schedule of visitation or partial custody with
Mother:
A. Mother shall have an extended weekend with the
child prior to the end of school in 1997, Mother shall provide
Father with two weeks notice as to the dates in which she
intends to exercise this period of visitation, It is the intent of
this provision that Mother shall spend as much time as
possible with the child when she is exercising this period of
visitation so that she can reacquaint herself with her son.
B, Provided that Mother exercises the period of
visitation as indicated in Paragraph 2(A) above, Mother shall be
entitled to the following periods of partial custody and
visitation over the summer of 1997:
i. For the first full week following the end of
school, Mother shall have the child at Helen Cohagen's
residence (the maternal grandmother), in Austin, Texas.
The cost of the transportation for this trip will be
assumed by Mother,
ii. Assuming that the Mother complies with the
visitation arrangement contained in Paragraph 2(B)(i), she
shall be entitled to one week of partial custody with the
child to occur at her residence, for one week during the
month of July, Mother shall provide Father with the
dates in which she intends to exercise this week of
visitation no later than June 1 st, The parties shall equally
share the cost of the transportation associated with this
period of partial custody and visitation.
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3. Mother shall have reasonable telephone access to the child
and is encouraged to contact the child regularly pending the
implementation of this visitation schedule,
4. There shall be no excessive use of alcohol or any illegal
substances of any kind in the presence of the child. Additionally, the
parties will endeavor to make sure the child is not exposed to
excessive smoking,
John R. Zonarich. Esquire _
Debra A. Denison, Esquire
BY THE COURT, )/
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KATHLEEN RODE,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
JEFFREY S. HUGENDUBLER,
Defendant
NO, 97-74 CIVIL TERM
CIVIL ACTION - LAW
JUDGE PREVIOUSLY ASSIGNED:
CUSTODY CONCILIATION CONFERENCE SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915,3-8(bl. the undersigned Custody Conciliator submits the
following report:
1. The pertinent information concerning the child(ren) who is(are) the
subject of this litigation is as follows:
NAME BIRTHDATE
CURRENTLY IN
CUSTODY OF
Jason S. Hugendubler February 24, 1987
Defendant
2, A Conciliation Conference was held on February 13, 1997, and the
folloWing individuals were present: the Plaintiff appeared through counsel, John R.
Zonarich, Esquire; the Defendant appeared with his attorney, Debra A, Denison,
Esquire,
3. Items resolved by agreement: See attached Order.
4. Issues yet to be resolved: See attached Order.
5, The Plaintiff's position on custody is as follows: Plaintiff lives in Georgia
and requested that she be given a block of time over the summer with the child and
the Christmas holiday, Plaintiff's counsel acknowledged that she has not had any
contact with the child since the summer of 1994. Her version as to why she has
had no contact is different than the Defendant's, and she maintains that it has been
difficult for her to see the child both economically and because her perception that
there have been roadblocks placed in her way,
6. The Defendant's position on custody is as follows: Defendant maintains
that Mother has made no effort to see the child since 1 994 and in fact has only
made one or two phone calls since then. He denies interrupting the Mother's
access to the child, and in fact claims that he has asked her to have contact, He
also reports that his son, who is about to be 10 years old, does not want to visit
the Mother at all. The son was at the conciliation conference,
7. Need for separate counsel to represent child(renl: Neither party
requested,
8, Need for independent psychological evaluation or counseling: None
requested and the Conciliator does not believe any is necessary.
9, Other comments: This is a difficult case in that the Mother has not had
contact with the child for quite some time, The Conciliator was able to get the
parties to agree to a schedule that would reacquaint the Mother with the child, It is
CIOFFICE IWPWINIWPDOCSIOOMES TIC \HUGE NDU B RE 5
July 10, 1997
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flying, Under cover letter dated June 16, 1997, Defendant, well in advance of this second
visitation, proposed that the parties drive the child halfway to accommodate his fear of
flying, Said letter attached hereto as EXHIBIT A, Defendant received no response to
this letter until the first week in July,
8, Admitted. Defendant Jeffrey S, Hugendubler has prepared for this visitation since June
1997, has measured the halfway distance point, and made hotel reservations, Defendant
has arranged the trip so that the child is available for visitation on July 18, 1997, in
Statesville, North Carolina, one day prior to the originally scheduled visitation,
9, Denied. Afier reasonable investigation. Defendant is without knowledge or information
sufficient to fonn a belief as to the truth thereof and proofis demanded at trial. However,
it has been represented by Plaintiffs counsel that said ticket has been purchased,
10, Admitted. Please see response to paragraph 7. The child may be available for the Court
to express his concerns,
II, Admitted. It is important to note that this has been a difficult case from the beginning
Plaintiff, Kathleen Rode, sought visitation with her son afier a two (2) year absence from
his life, Jason Hugendubler harbors ill will toward his mother which makes visitation a
difficulty for him, It should be clear that at no time has Defendant Jeffrey S, Hugendubler
objected to visitation. Indeed, he has gone out of his way to accommodate the needs of
the child and Plaintiff, including forwarding potential locations for her to stay when
coming to Harrisburg, arranging a neutral site for the child and mother's first meeting,
and trying to ease this process to the best of his ability, The desire to drive for this
visitation has not been an attempt to block visitation, but an attempt to accommodate
Jason Hugendubler's needs and fears in smoothing this transition, Defendant has always
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EXHIBIT A
REAGER & ADLER, PC
ATTORNEYS AND COUNSELORS AT LAW
Ill) MARKET STREET
CAMP Hill. P[NNSYlVANI^ 17011..M2
117,161,1181
TfLHAX 111,1J0.7166
THEODORE A, ADLER'.
DAVID W, REACER
LINUS E, FENICLE
DEBRA DENISON CANTOR
THOMAS 0, WILLIAMS
SUSAN H, CON FAIR
REPLY TO:
P,O, BOX 797
HARRISBURC, PA
11108,0197
June 16, 1997
MONICA D, ZERCHER
lrgal ^nl'l~nl
-Alw admint'd 10 D.C. Oar
John R. Zona rich, Esquire
Skarlatos & Zona rich
204 State Street
Harrisburg, PA 17101
RE: Rode v. Hugendubler
Our File No,: 97-039
Dear John:
It is my understanding that the exchange In custody took place per the agreement. The
mileage was calculated at 204 miles, round trip, Therefore, your client will owe Jeff for a total of
408 miles.
Jason was adamant against flying, My client proposes that in order to avoid this trauma,
each parent drive halfway to make the custody exchange. Each parent will share the
transportation cost and Jason will feel more comfortable with the travel arrangements. Jeff
calculates that Statesville, North Carolina, Is approximately half way between the two homes,
Please advise as to your client's position on this matter,
C,._,. v. ft'truly YOU~
..-I--::: _
- br enison Cantor
DDC/rlw
cc: Jeff Hugendubier
C'()f'~ESTanTERS\l0NARICHL1R
+ ('pr1iOpri M f1 Civil lri;'ll "Of"('i.,li~1 hv lhp No1Iinn,,! ROimf of Tri,,1 Anvor"rv. A Pennsvlvanla Supreme Court Accredited ^Rtncy
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CIOFFIC EIWPWINIWPDOCSIllOMESTICIHUGENDUa RES
July 10,1007
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CERTIFICATE OF SERVICE
AND NOW, this 10th day of July, 1997,1 hereby verify that I have caused a true and correct copy
of the foregoing Defendant's Response to Plaintiffs Emergency Petition to Resolve Transportation Issue
in Upcoming Visitation to be sent via facsimile to (717) 233-6740 and to be placed in the U,S, mail, first
class, postage prepaid and addressed as follows:
John R, Zonarich, Esquire
SKARLATOS & ZONAR1CH
204 State Street
Harrisburg, PA 17101
"
"
By:
Respectfully Submitted,
REAGER & ADLER, PC
, ",,' ut{, LJ-cY
Q RA DE SON CANTOR, ESQUIRE
~ orneyLD:No, 66378
2331 Market Street
Camp Hill, PA 17011-4642
Telephone No, [717] 763-1383
Attorneys for Defendant
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SKARLAf9s. Ii ~NARICH .'llt ! I) t997~ .-
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ATTOR'NEYS AT LAW
,
Jo .
KATHLEEN RODE,
PlaintilT
IN TIlE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
NO, 97-"14 CIVIL TERM
JEFFREY S. IIUGENDUBLER,
Defendant
CIVIl. ACTION -I.AW
EMERGENCY PETITION TO RESOLVE
TRANSPORT A nON ISSUE
IN UPCOMING VISITATION
I.
The PlaintilT is Kathleen Rode, an adult individual residing at 2512
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Bridgeboro Street, Albany, Georgia, 31705-4338, PlaintilT is represented by John R.
2. The Defendant is Jeffrey S, Hugendubler, an adult individual currently
Zonarich, Esquire,
residing at 15 Bourbon Red Drive, Mechanicsburg, Pennsylvania, 17055. Defendant is
represented by Debra Denison Cantor, Esquire,
3. The child is Jason S, Hugendubler, age ten (10), date of birth, February 24,
1987.
4. On February 25, 1997, Custody Conciliator Michael L. Bangs issued a
Conference Summary Report. and on March II, 1997 an Order was issued outlining
visitation, A copy of said Order is attached hereto as Exhibit "A",
5. All visitation has been accomplished up to this point in accordance with
said Order.
6. Pursuant to said Order the July visitation has been scheduled in Albany,
Georgia for July 19, 1997 through July 27. 1997 with costs of transportation equally
shared by the parties,
7. Defendant Jeffrey S, lIugendubler objects to the child, Jason S,
lIugendubler, flying on a commercial airlines to the scheduled destination of Albany,
Georgia even though Jason flew to Austin, Texas for the end of school year visitation,
8. Defendant Jeffrey S, lIugendubler insists that the parties each drive
halfway to accomplish the scheduled July 19 visitation,
9, Plaintiff has purchased a round trip ticket from Harrisburg Intemationalto
the place of destination at a cost of $158,00.
10, The objections of Defendant Jeffrey S, Hugendubler arc founded on the
grounds that Jason is afraid of flying,
II, An impasse has been reached even though counsel have attempted to
resolve this matter without the intervention of the Court,
12, Court intervention to resolve this issue immediately is requested in light of
the July 19, 1997 scheduled visitation,
possible with the child when she is exercising this period of
visitation so that she can reacquaint herself with her son.
S, Provided that Mother exercises the period of
visitation as indicated in Paragraph 2(A) above, Mother shall be
entitled to the following periods of partial custody and
visitation over the summer of 1997:
i. For the first full week following the end of
school, Mother shall have the child at Helen Cohag~'s
residence (the maternal grandmother), in Austin, Texas.
The cost of the transportation for this trip will be
assumed by Mother,
ii. Assuming that the Mother complies with the
visitation arrangement contained in Paragraph 2(S)(i), she
shall be entitled to one week of partial custody with the
child to occur at her residence, for one week during the
month of July. Mother shall provide Father with the
dates in which she intends to exercise this week of
visitation no later than June 1 st, The parties shall equally
share the cost of the transportation associated with this
period of partial custody and visitation,
,1111 I ,1 ~ II III ill 1 II : ,'i
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l1yinA, l.IlIdcrco\'er lelterdalcd June 16,1997, Defelldant, well ill advan~e Ilflhis st'Cllod
visitation. propos(~d Ihatthe partie~ e1ri\'e the child halfway 10 acconllnlldate his '....ar uJ
l1ying, Said lelter :Iltadled her,'to as EXlIlIIlT A, I)l'f,'ndiint 1'<'('('i\'('d nl.l 1'<"p,,'n~,' I"
this leller uotilthe firSI \\cek 0\ July
8, Admilll'll. Delcnd:lIll JeirIcy S, llugendubler has prepared for this visiliilion sinn' June
1'),)7. has l1lea:<lJred the h;.ll\vay di,l,ol('e pl.liol. and nl;"le hotd '('\('I'\'alion, Iidl'nrl;"'1
has arrang,'d Ih" flip '" Ihal Ihe dlild 15 available for vi,nalioll on JlJly I~. 1.!lii, III
Statesvlik, Nllllh Calolilla, olle day pliol to the oliginally scheduled visitation
9, Denied. f\flelleasollable illvt'stigalilln, Defendant is witholJt knowledge or information
sufiicientlO form a Iwliel' as 10 the 1I1Jlh lheteor and proor is demanded at Iriiil 110\\'('\'\'1',
it has been reprt,slm",d by Plaintiffs counsd lhat said ticket h,15 bl'en plJrcbiis('d
\0, Admilled, Plea~e see re>ponse 10 paragJaph 7, The child lIIay be available for Ihe COllll
10 cxpress his (,OIll'.l't'nS
II ArlmiltPl1. It is illlportanl 10 note that this has been a difficult case from the bcginning
PlaintiO: Kathkcn R(\dc, soneJiI sisitation with hcr son after a two (2) year absencc from
hislile. Jnsonllllg~nduhkr harhOls ill will toward his mother whkh makt~s visilation a
dilliculty 1,)1' him, II should he c1C<lr Ihal al no timc has Dclcndant Jeffrey S, llugendublcr
objected to visitalion, Indeed, he has gone out of his way to accommodate tbe nccds of
the child ami Plaintifi', including forwarding potential locations li)r her 10 stay whclI
comillg 10 Ilarrisbllrg, arranging a neutral site for the child and flIolher's first meeling,
and trying 10 ('i1se this procpss to the best of his ability, The desire 10 dlive 1'01 lhis
visitation has not been an attempt to block visitation, but an attempl 10 accommodate
Jason HUAcndllblcr's needs and lears in smoothing Ihis transition, Defendant has always
,
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t:.\O~FIr.F\WIJWIN\W"'D(X;~,". "'MFt,TtCVILIGLIWlJH RF~
.July 10, 19:)7
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pro\'id~d Jd"'lIIcC lIoric~ of rlwsc bsuc~ ill .11I '1I1~1Il(l1 III n'Hllvc thelll Wilhlllll CUl,n
inll'/'\'('ntion. To dalt'. PlailllilJ' has rt'fi.sl'd 10 di~cuss llrc sillwion dirCClilla \\llh
Defendallt.
Respectfully Submitted,
REAGEH & ADI.EH, 1'('
Date: July 10, 1997
By
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1)~,IIIt,\ IH:)'/SON C,\NTOH, FSQI'IIn:
AIt"rncy./ I)' No. "I>17R
2.1.11 \1arkd Sln'I"
Camp Hill, PA /7011-4642
T c1cphllllC NlI. (717J 763-1 3SJ
Attorneys t(Jr /)cf~ndanl
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3. Any further rcliefrequested hy cither party at this time
is dcnicd.
BY TIlE COURT,
Charles W, Rubcndall, II, Esq,
Donald M, Lewis, III, Esq.
Keefcr, Wood, Allcn & Rahal
210 Walnut Strcet
P,O. Box 11963
Harrisburg, P A 17108-1963
Attorneys for Plaintiff
Charlcs E, Wasilcfski, Esq.
Pcters & Wasilcfski
2931 North Front Strect
Harrisburg, PA 17110
Attorney for Dcfendant Pcnnsylvania
Manufacturers' Association Insurancc Company
Thomas J. Finucane, Esq.
Wingerd & Long
Room 500
14 North Main Strcet
Chambcrsburg, PAl 720 I
Attorney for Dcfendants Garry
Martin and Victoria Martin
,
,
ClYf"'-"-' ,,..,.<<.:.f..(
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FRANKLIN FEED & SUPPLY
COMPANY,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
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Plaintiff
"
v,
PENNSYL VANIA : CIVIL ACTION -- LAW
MANUFACTURERS' ASSOCIATION
INSURANCE COMPANY; and
GARRY MARTIN and VICTORIA
MARTIN, Individually and tldlb/a
CREEKSIDE FARMS,
Defendants : No. 98-74 CIVIL TERM
IN RE: MOTIONS FOR SUMMARY JUDGMENT
OF PLAINTIFF AND DEFENDANT PENNSYLVANIA
MANUFACTURERS' ASSOCIATION INSURANCE COMPANY
BEFORE HESS, OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
,
.
!
,.
I
I
OLER, J., June II, 1999,
In this civil aetion, a company which sells animal fecd has sued its liability insurance
carrier. Plaintiff seeks (I) a declaration that the insurance company is obligated to defend
a certain claim by purchasers that the feed harmed their dairy herd, and a declaration that any
obligation of Plain tilT on the claim is covered under the policy, (2) an award of damages for
breach of the contract of insurance by virtue of the insurer's failure to provide a defense thus
far, and {3} an award of damages for bad faith on the part of the insurer pursuant to Section
8371 of the Judicial Code,' In the count of Plaintiffs complaint seeking declaratory relief,
the purchasers of the feed have been included as nominal defendants,2
Defendant insurance company has interposed a defense that a condition of the policy
I Plaintiffs Complaint, paragraphs 1-46.
2 [d., paragraph 28.
requiring prompt notilication of the claim was not eomplied with by Plaintiff and that
prejudice accrucd to the insurer as a result,' The prejudice assened by the insurer is that the
possibility of a defense on the purchascrs' claim has been fbreclosed by the doctrine of
collateral estoppel as a result of earlier litigation between PlaintifT and the purchasers,4
For disposition lit this time are cross-motions fbr summary judgment filed by Plaintiff
and Defendllnt insurance company, For the reasons stated in this opinion, Plaintill's motion
will be granted with rcspect to the insurcr's obligation to dclend, and the motions will bc
otherwise denicd,
STATEMENT OF FACTS
PlaintilTis Franklin Feed & Supply Company, a Pennsylvania corporation having its
principal place of business in Chambersburg, Franklin County, Pcnnsylvania,s Defendant
Pcnnsylvania Manufacturcrs' Association Insurance Company is a Pennsylvania insurancc
company.1>
Plaintiff Franklin Fced & Supply Company is in thc busincss of selling fccd to
farmcrs.7 It also provides nutritional scrvices and tests forage for farmers~ Defendant
Pcnnsylvania Manufacturcrs' Association Insurance Company issued a commercial gcncral
) Answer with New Matter of Defendant, Pennsylvania Manufacturcrs' Association
Insurancc Co. to Plaintiffs Complaint, paragraphs 47-61,
4 Id., paragraph 59,
S PlaintilT's Complaint, paragraph I; Answcr with New Matter of Dcfendant,
Pcnnsylvania Manufacturcrs' Association Insurance Co. to PlaintilT's Complaint, paragraph
1.
I> PlaintilT's Complaint, paragraph 2; Answcr with New Mattcr of Defcndant,
Pcnnsylvania Manufacturers' Association Insurance Co., paragraph 2.
7 Stipulation of Facts, paragraph 2,
RId., paragraph 7.
2
liability policy to Plaintifl: cflcctivc from Novcmbcr 1. 1991,to Novcmbcr I, 19l)2,"
Thc policy gcncrally providcd covcragc I(lr propcrty damagc liability arising out of
an accidcnt; an accidcnt, undcr thc policy, includcd continuous or rcpeatcd cxposurc to
substantially thc samc harmful conditions, III Exclusions to this covcragc gcncrally cxccptcd
propcrty damagc liability assumcd by rcason of a contract or agrccmcnt, and propcrty
damagc liability arising out of a dclcctivc product or brcach of contract whcrc thc propcrty
was not physically injurcd,ll
Thc policy also obligatcd thc insurcr to dclcnd any suit sccking covcrcd damagcs.
Stipulation of Facts, Exhibit A (copy of policy),
In addition,thc policy containcd a prompt notification provision, This provision rcad
as follows:
~
Duties In Thc Evcnt OfOccurrcnce [Accidcnt]. Claim Or Suit.
a, You must scc to it that wc arc notificd as
soon as practicablc of an "occurrcncc" or an offcnsc
which may rcsult in a claim, To thc cxtcnt possiblc,
notice should include:
(I) How, whcn and whcre thc
"occurrencc" or oflcnsc took placc;
(2) Thc namcs and addrcsses of any
injured pcrsons and witnesses; and
(3) Thc naturc and location of any
injury or damagc arising out of the
"occurrencc" or offcnse.
b. I I' a claim is madc or "suit" is brought
against any insurcd. you must:
" Ie/., paragraph 5,
III See ie/., Exhibit A (copy of policy),
lilt!,
3
(1) Immediately record the specifics
ofthe claim or "suit" and the date received;
and
~~
\
(2) Nolify us as soon as pructicable.
You must see to it that we receive writtcn
notice ofthe claim or "suit" as soon applicable,
(c ) You and any othcr involvcd insured must:
(I) Inul1ediately send us copies of
any demands. nolices. summonses or legal
papers receivcd in conncction with the claim
or "suit;'~
(2) Authorize us to obtain records
and other infomlation;
(3) Cooperate with us in the
investigation, settlcment or defense of the
claim or "suit;" and
(4) Assist us, upon our request, in the
enforccment of any right against any person
or organization whieh may be liable to the
insured because of ... damage to which this
insurance may also apply,
(d) No insureds will, except at their own cost,
voluntarily make a payment, assume any obligation,
or incur any expense, other than for first aid, without
our consent. I 2
Finally, the policy provided that "[n]o person or organization has a right under [the
coverage provisions of the policy t]o join us as a party or otherwise bring us into a 'suit'
asking for damages from an insured ,.. or [t]o sue us on this Coverage Part unless all ofits
terms have been fully complied with," Stipulation of Facts, Exhibit A (copy of policy).
Plaintiff sold feed, providcd nutritional services, and tested forage for Defendants
12 !d.
4
Garry and Victoria Martin, who conducted a dairy operation in Franklin County known as
Creekside Farms,ll In March of 1992, PlaintifTlearned that the Martins had experienced
problems with dairy cows on their tlmn, and that at least three cows had died, which led to
an inquiry as to the cause,I4
Plaintifl' later became aware that the Martins were alleging th:!t the feed sold by
Plaintifl' was defective, and that they attributed the problems with their dairy herd to the
fced,15 When PlaintilT attempted to collect on the invoices for the Iced, a dispute arose and
the Martins refused to pay for the feed. I- On February 2, 1993, Plaintiff tiled a lawsuit
against the Martins in the Franklin County Court of Common Pleas, docketed at A,D, No,
1993060, to collect the unpaid invoices for the animal feed.17
On October 22, 1993, the Martins commenced a civil action against Plaintiff and the
manufacturer of the feed in the Cumberland County Court of Common Pleas, docketed at No,
3356 Civil 1993, by filing a praecipe for writ ofsummons,lK One of the writs was therealler
served upon PlaintiffY'
Upon receiving the writ, Plaintiff did not notify Defendant Pennsylvania
Manufacturers' Association Insurance Company at that time of the fact that a suit had been
13 Id" paragraphs 4,7,
14 Id., paragraph 8.
IS Id., paragraph 9,
I- Id.. paragraph 10.
17 Id., paragraph 11.
IK Id.. paragraph 14.
''lld" paragraph 15,
5
IiIcd against Plaintill?' Mcanwhilc, thc collcction suit brought by Plaintiff in Franklin
County procccocd to compulsory arbitration in that court, with hcarings hcld by thc board
of arbitrators on Fcbruary 7, 1995, April 6, 1995, and Junc 22, 1995,11
An arbitration award was issucd on Junc 22, 1995, in filvor ofthc Martins,ll Plaintiff
did not appcalthis unsucccssful rcsult in its collcction suil.l'
In Octobcr of 1995, Plaintiffrcccivcd a wrillcn dcmand fi.lr sctllcmcnt ofthc suit in
Cumbcrland County brought against it by thc Martins,l~ Plaintiff forwardcd a copy ofthc
Martins' sctllcl11cnt dcmand Icllcr to Dcfcndant Pcnnsylvania Manufacturcrs' Association
Insurancc Company; this was thc insurcr's Iirst noticc of thc lawsuit IiIcd in 1993 in
Cumbcrland County or thc undcrlying allcgations,15 Dcfcndant procccdcd to invcstigatc thc
c1aim,l.
I
,
~
In Dcccmbcr of 1995, Dcfcndant insurcr rctaincd dcfcnsc counscl to cntcr an
appcarancc in thc Martin suit on Plaintill"s bchalf.17 This action was takcn subjcctto thc
insurcr's rcscrvation ofa right to withdraw from thc dcfcnsc and disclaim coveragc bascd
upon furthcr invcstigation,lH
lllfe/., paragraph 16,
life/., paragPJph 18.
llfd" paragraph 20.
llfe/., paragraph 2 I,
l~ fe/., paragraph 22.
15 Id" paragraph 23.
11> fel., paragraph 24.
17 fd" paragraph 25.
lH fd,
6
- .....,.-,
On Dcccmbcr 19, 1995, a complaint was filcd against Plaintiff and thc manulacturcr
ofthc fccd in thc Martin suil.l~ By Ictter dated January 22, 1996, Defcndant Pennsylvania
Manufacturers' Association Insurance Company declined to provide fhrthcr dcfcnsc to the
PlaintifTand dcnied eovcrage with respect to the Martins' claim,JII
Thc action slIbjllelice, relating to the obligation of the insurer to the seller of the tccd
in connection with the claim of the purchascrs, was filed by the seller on January 7, 1998.
This action was consolidatcd with the action ofthc purchascrs against the sellcr, pursuant to
an agrecmcnt of counsel, to facilitate the considcration of various related summary judgmcnt
motions,J'
As noted previously, Plaintiff sellcr (Franklin Fecd & Supply Company) and
Dcfendant insurer (Pennsylvania Manufacturcrs' Association Insurance Company) have cach
filcd motions for summary judgmcnt in the present case. Plaintiff's motion rcqucsts that
summary judgmcnt bc cntcrcd in its favor and against the insurer (and the purchascrs) "on
the issucs of[Plaintiff's] right to a dcfcnse of the [purchasers'] action and insurancc coveragc
undcr the [Defendant's policy] for any judgmcnt that may be entered in that action."Jl
Defcndant's motion requcsts that the court "cntcr summary judgment against PlaintilT ......H
In support of its motion for summary judgmcnt, Plaintiff argucs that
PMA breachcd its duty to dcfend Franklin Fccd by prcmaturcly
disclaiming any coverage obligation and by withdrawing from
the dcfcnsc ofthc Martin action,
l~ lei., paragraph 26.
.III lei" paragraph 28, Exhibit G,
.11 Ordcr of Court, Octobcr 21, 1998 (Hcss, J,),
Jl Franklin Fced's Motion for Summary Judgmcnt, claim for rclicf,
1.1 Motion for Summary Judgmcnt of Dcfcndant, Pcnnsylvania Manufacturers'
Association Insurancc Company, claim for rclicf,
7
PMA should be required to reimburse Franklin Feed fiJr all
attorney's fees and other defense costs it incurs in defending
itself in the Martin suit, including all costs of appeal.
PMA is obligated to indemnify Franklin Fced against any
judgment for damages, interest, and Rule 238 delay damages
that may be entered against Franklin Feed in the Martin suit.
PMA should be required to reimburse Franklin Feed liJr all
attorney's fees and other eosts incurred in bringing this action to
establish its right to a defense and potential indemnity under the
policy, due to I'MA's unreasonable and unfounded repudiation
of its eontractual obligations,14
In support of its motion for summary judgment, Defendant argues
... Franklin Feed clearly failed to give prompt and timely
notice to I'MA of the occurrence or offense that could rise and
did rise to a claim for damages as required by the insurance
policy as a prerequisite for coverage, As a result of the late
notice, PMA was clearly prejudiced because the doctrine of
collateral estoppel has application to the facts and circumstances
of this case. Because Franklin Feed has failed to comply with
the requirements of the insurance policy to the prejudice of
PMA, it has forfeited the right to claim coverage under the
policy.35
From the foregoing, it is apparent that the merits of the parties' positions on summary
judgment in this case are largely dependent upon a ruling on the issue of collateral estoppel
in the companion case, wherein the purchasers are suing the seller and manufacturer. In this
regard, by an order, accompanied by an opinion, of even date herewith, the court has
concluded that the earlier litigation did not resolve, for purposes of collateral estoppel, the
factual issue of whether the feed sold by Defendant was harnlfully defective, The order and
H Briefin Support of Franklin Feed's Motion for Summary Judgment, at 13-27.
35 BriefofDefendant.l'ennsylvania Manufacturers' Association Insurance Company,
in Support of Motion for Summary Judgment, at 17-18.
8
opinion in Martin v, Purina Mills, Inc, , No, 3356 Civil 1993 (Cumbcrland County), arc
incorporated herein by rcfercncc,
DISCUSSION
Pcnnsylvania Rule of Civil Proccdure 1035,2 provides as follows with rcspect to
summary judgmcnt:
Aficr thc relcvant pleadings arc closed, but within such
timc as not to unreasonably dclay trial, any party may move for
summary judgment in wholc or in part as a mattcr of law
(I) whcncver thcre is no gcnuinc issue of any matcrial
fact as to a ncccssary clcmcnt of thc cause of action or dcfensc
which could be cstablishcd by additional discovcry or cxpcrt
rcport, or
(2) if, aficr thc complction of discovcry rclcvant to thc
motion, including the production of cxpcrt rcports, an advcrsc
party who will bcar thc burdcn of proof at trial has failcd to
produce evidcncc of facts essential to thc causc of action or
dcfcnsc which in a jury trial would rcquirc the issucs to bc
submittcd to a jury,
In liability insurancc law, thc duty of an insurcr to dcfcnd is, in gcncral, separatc from
and broadcr than thc duty to indcmnify, See General Accident Ins, Co, of America, 547 Pa,
693, 692 A.2d 1089 (1997), The usual undcrtaking of thc insurer is "to dcfcnd the insurcd
against any suits arising undcr thc policy evcn if such suit is groundlcss, falsc or fraudulcnt."
Erie Insurance Exchange v, Transamerica Insurance Company, 516 Pa, 574, 583, 533 A.2d
1363, 1368 (l987) (citation omittcd),
Sincc the insurcr thus agrccs to rclicvc thc insurcd ofthc burden
of defcnding cvcn those suits which havc no basis in fact, our
cascs havc hcld that thc obligation to dcfcnd ariscs whcncvcr thc
complaint filcd by thc injurcd party may potentiallycomc within
thc covcragc of thc policy, Consequcntly, thcrc may be an
obligation to dcfcnd although no obligation to indcmnify.
Gedeon v, State Farm Mutual Automobile Insurance Co" 410 Pa, 55, 58-59, 188 A.2d 320,
9
321-22 (1963) (cmphasis in original) (citations omittcd),
As a gcncral rulc, thc dctcrmination ofthc issuc of coveragc, as opposcd to the issue
of duty to dcfcnd, is best deferred to the conclusion of the underlying action. See Heffernan
& Co, v, Hartford Insl/rance Co., 418 Pa, Supcr, 326, 614 A,2d 295 (1992).
Finally, with respect to liability insurance law, it is wcll settled that an insured's
failure to comply with a prompt notification provision in a policy will not excuse
performancc on the part of the insurer in thc absence of dcmonstrated prcjudice to the insurer
as a result of the delay. Brakeman v, Polomac Insl/rance Co" 472 Pa, 66, 76-77, 371 A,2d
~
r
,
193,198 (1977).
An application of the foregoing principles to the facts of the instant case, including
the holding as to collateral estoppel in thc companion case, results in a conclusion that (1)
the liability insurance policy issued by Defendant insurer to Plaintiff at least potentially
covers the claim of Defendant purchasers against Plaintiff for harmfully defective feed, (2)
that the issue of whether the feed was harmfully defective remains litigable in the underlying
case so as to negate Defendant insurer's claim of prejudice by reason of the doctrine of
collateral estoppel, and (3) that it would be premature to adjudicate the issue of coverage at
this time.36 For these reasons, the following order will be entered:
ORDER OF COlJRT
AND NOW, this 11th day of June, 1999, upon consideration of the motions for
summary judgment of Plaintiff Franklin Feed & Supply Company and Defendant
Pennsylvania Manufacturers' Association Insurance Company, and for the reasons contained
in the accompanying opinion, it is ordered and directed as follows:
I, Plaintiffs motion is granted to the extent that
Defendant Pcnnsylvania Manufacturers' Association Insurance
36 The court is also of the view that a determination that the insurer has acted in bad
faith can not be made as a matter of law at this time.
JO