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Home My WebLink About97-01083 .t' .. J ~ lL ~ ) ~ I I .. I ~ II ~ I ~ - .::) '" <:J ~ . <::) ,I' ,;...~ ...~ . ' :~~ ;. / .. ~ ," ... ..... ...., ) """ ,r:'I'.... I'~ ;" " I I ; S'U.!YII1Z IC(l/J/pbdl IDI'I'U.!!l'ill'r Vlnconl J. loul Attorney at Law August 21, 2000 1801 Mark'l Str..' 34'" Floor Phllad.lphla, PA 18103-2318 phon. 21502\J8-43504 r.. 215-2"04301 .-mlll vloul@lcdl,w,com wlb www.lcdlaw.com The Honorable Kevin A. Hess Court of Cornrnon Pleas Curnberlund County One Court House Square Carlisle, PA 17013 Re: Dan Carey t/a d/b/a DGC Transport v. Flying J Ine, CCP, Cumberland Co., No. 97.1083 Our File No. 67863 Dear Judge Hess: I arn in receipt of your Order dated August 15,2000 striking the above case frorn the trial list for Septernbel' 11,2000 for counsels' failure to attend the Call of the List on August 15, 2000, I arn writing to advise that this rnatter has been rnarked "Discontinued" by plaintiffs counsel back in June of this year as plaintiff has decided to drop the case, I hope this reflects in the Court Adrninistrator's office so the rnatter will not be relisted or rernain active on the dockets, If there is anythin~ further you require, please do not hesitate to ask. RESPECTFULLY, ~ VINCENT J, IOZZI VJIIldrn cc: Robert A. Hopstetter, Esquire !,Il , ,;;1, ",,' .' "" , "'.1. PI',l,IOI,-IIJt, " ,,"' .. . .'11,>"1""", W,I""'"I''''' M,'d.., ,.. ,'. J,-.", 1'.""" .h". " ..", P'>'''''','. 1"-"",,", ""., 1'.'n'\\~'I".I"'" 11,.1,,,..,.,, """".,I..If', DAN CAREY T/A/D/B/A DGC TRANSPORT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. FLYING J. INC., A UTAH CORPORATION, Defendant NO. 97-1083 CIVIL TERM ORDER OF COURT AND NOW, this 21st day of June, 2000, following a pretrial conference at which Plaintiff's counsel indicated that he intended to file a praecipe to discontinue the present action and had so advised Defendant's counsel, Vincent J. Iozzi, Esquire, who consequently did not attend the conference, the case is stricken from the trial list. By the Court, J Robert A. Hopstetter, Esqui e Feeman, Mesics & Hops tetter 247 South Eighth Street P.O. Box 25 Lebanon, Pa 17042-0025 Attorney for Plaintiff Vincent J. Iozzi, Esquire Swartz, Campbell & Detweiler 1601 Market Street - 34th Floor Philadelphia, PA 19103-2316 Attorney for Defendant Prothonotary Court Administrator srs N Q PIl'i-lRll'il L Co N r. 1l1'iJV\l~1>! F~lo'I1 ~l-I1li\JTtFV' ' .- .,' ." ~., ...... . ..~. ...... .." . CASE NAME: I. I . II. III.' ( . '. I o PRETRIAL CONFERENCE ORDER (' .^ ,C " ''/' ,-= L "II vA -r. ,,,r... l_ I . _.r "" , 111.) c.. , pretrial Conference Data A. Date - J clA .c_ 'Z \ \ 2./.:>02> B, Judge - O\d -I -Ii- C, Attorneys/parties .p~, R.~('J{ ~.:... ~ ....f,~J('I\(' ~I ~s. 6 ' vA, '.""".).,1 -l, .:to"2..z..I ~ c.70, : I Nature of Case \ \ I ,I \' I k A. Caus!! of Action lie. C ,I ~,,:])C. (. :J) 6- c t ~ :> c.'" <<1' (o..,li' ... c...~ . dl-\I<nJ) ?J I~ ~1~\ ~~J~ nF,.\\r ~r.-\\' ~r \\ "n.lt" :::.(') v IC.~ > '.\ t.\. ~r (n.J!), '-J: n j' l ,t r- , I ,.(. . -L., ~ , B. BasJ.c-t'acts r ,r_rJ~' \'1(..'(. _r(~"'\\I'" 11:1 ,rz.,j.S."'-1,"-~I.J) -'6J,\ure., VI'" r" , I' 'J ( - _ '':-t_ " J c. iCG .~l) 2'<J.!.!"-fJ/( 'tl~ C. Defense ~~'1-.t.LI)f"I,)\'\( (T"L,J <:>1, fLL f.-ft. of)J YI'\r..ndl.rN .-]F) d 1~"1(lM>pc) t1;>'.;-tCh'" .l l~( 1"H~'" b1 f/~\'"Ftt .t)cc. 0\ Trial A. B. C. D. 2 ,/ Ju Nonjury- eremptorics - '1 I '-{ Estimate of Duration - Availability of counsel - IV. Issues I \' 'l ,t -{; l l (..o/..\r)',d...;; .!:. Iot,- IQt.)) I ~... 1...,1-, C ..? 't' t.. J (" ' l(!:or.~~ ~ f{;"1 .If.!. D"FO\' PLtu I$...\d'->'''' I D.,> 'il'''.0) l> i b,-~ ~ ~'" z.\ I Cc "'\.-:;l) -~ cd \;. c./" .s ~u~ft;>~1 <: ~ (1'" ~L\<O>':)l' ~l:..b - "i':> IlJ~l) :"' V tL bl,}'c <L \j.!:.? V. status of Settlement Negotiations Pl, J<~7' J ~ .J;..s~ o.;JD, ~..,\ lop!:..,J J(cI~J o,~~() " 3) ~. JUN 1 9 2aaaM SWARTZ, CAMPBELL & DETWEILER BY: Vincent J, lozzi, Esquire Identification No, 50688 1601 Market Street - 34th Floor Philadelphia, PA 19103-2316 (215) 564-5190 Attorney for Defendant, Flying J Inc. DAN CAREY TINDIBIA DGC TRANSPORT, COURT OF COMMON PLEAS Plaintiff, v. CUMBERLAND COUNTY FLYING J INC" Defendant. NO. 97-1083 PRETRIAL MEMORANDUM I. STATEMENT OF BASIC FACTS AS TO LIABILITY Plaintiff commenced suit in this matter by filing a complaint against Defendant on February 18, 1997. Plaintiffs complaint sets forth theories of breach of contract and negligence in connection with a failed transmission in Plaintiffs 1996 Peterbilt Model 379 vehicle transport truck (hereinafter referred to as "Truck"), Plaintiff contends that the said transmission failure was caused by Defendant's failure to discover a transmission fluid leak during a routine maintenance service performed by Defendant on May 16, 1996. Defendant has answered the complaint, denying any liability to plaintiff and alleging, by way of New Matter, that Plaintiff failed to take reasonable care in the service and maintenance of the Truck, This matter was arbitrated on March 18, 1999, which resulted in an award in favor of the Defendant, Flying J, Inc" and against Plaintiff, Dan Carey, This appeal followed, Defendant, Flying J., Inc" operates a chain of service facilities throughout the country, one of which is located in Carlisle, PA. In the fall of 1996, plaintiff purchased a new 1996 Peterbilt Model 379 transport truck the from Florence Peterbilt dealership located in Florence, North Carolina, In connection with the purchase, plaintiff ordered a power takeoff unit (PTO) which the dealership had installed by a local facility called Albertsville Welding, The truck was then sold to plaintiff. Plaintiff admits to having at least one service visit including an oil change at a facility other than Flying J. Flying J performed service on the vehicle on the following dates: 1/22/96 - Dallas, TX 2/26/96 - Carlisle, TX 3/19/96 - Dallas, TX 4/9/96 - Dallas, PA 5/16/96 - Carlisle During each of these service visits to Flying J, a Flying J technician checked the level of the transmission fluid, changed the oil and performed all of the routine service indicated on the service tickets, attached as Exhibit "A", The last time that Flying J serviced the unit was May 16, 1996 at which point the fluid levels including the transmission fluid were checked and all fluid levels were full when the truck left the defendant's facility. The service ticket was signed by defendant's driver, Mr, Leonard Cook, Ten thousand, one hundred fifteen miles and twenty-three days later, plaintiffs truck suddenly broke down on Interstate Route 40 near Albuquerque, New Mexico. The truck was towed to Southwest Peterbilt where mechanics determined that the 2 transmission had failed due to a lack of transmission fluid, Plaintiff has identified Peter Baldwin, a service manager for Southwest Peterbilt as an "expert" who will testify at trial as follows: "When the PTO was installed[.] the old mounting gasket had not been removed, a small 1" piece of it was left on the transmission and a new gasket installed over it. This started a srnallleak that over a period of time, caused all of the lube to be lost and the transmission to fail." Thus, the according to Mr, Baldwin, the condition which led to the loss of the transmission fluid and catastrophic failure of the transmission resulted from the failure of Peterbilt's subcontractor, Albertsville Welding, to install the PTO properly, Plaintiff does not contend that Flying J was responsible for the improper installation of the gasket. The only allegations against Flying J are that they failed to discover the transrnission fluid level had dropped during the May 16, 1996 service visit. Mr. Baldwin purports to testify that the transmission leaked the fluid over a long period of time and that Flying J failed to discover the leak during the regular service visits including the May 16th visit. Defendants have objected by way of motion in limine to the introduction of Mr. Baldwin's testimony at trial on the basis that Mr. Baldwin is not qualified to render such opinions and that his proffered opinion is not supported by any sort of scientific foundation, Further, at no point was Flying J ever given the opportunity to inspect the transmission prior to its dismantling by Southwest Peterbilt. The c.ondition of the gasket at issue and supposed slow leak over time was never documented by anyone at Southwest Peterbilt. Photographic evidence of the slow leak, videotape evidence, and any other rneans of documenting the cause of the leak and the rate of the leakage was not obtained, Flying J was never offered the opportunity to inspect the failed transmission, to confirm or refute the cause of the transmission failure, the cause of the alleged leak, the rate of the leak or possible other 3 causes of the transmissions failure. The only physical evidence retained is a piece of the gasket which purportedly was provided to Mr. Carey by Peter Baldwin after the transmission was repaired. The defense will rely on the service invoices referenced above and plaintiffs own maintenance records as well as plaintiffs deposition testimony and the deposition testimony of defense expert Thomas p, Lacek, P,E, to establish that Flying J was not responsible for this loss. At no point was a loss of transmission fluid noted on any of the Flying J records, Plaintiffs own maintenance records show that plaintiff and plaintiffs driver Leonard Cook, failed to observe the alleged slow leak which Mr, Baldwin believes existed over the ten months or more that the truck was in service before the transmission failed. Plaintiffs own records establish that during the months of April. May and June, plaintiff performed monthly maintenance on the truck and at no point was the transmission leak noted, Plaintiffs driver also performed a pre-trip inspection each time the truck was driven, At no point was a transmission leak noted, The truck was at rest for twenty-four hours or greater on a nurnber of occasions between May 16, 1996 and the failure on June 8, 1996 and the driver never noted the transmission leak, Defense expert, Thomas Lacek, has issued a report that the transmission failure resulted from a catastrophic loss of transmission fluid which occurred on June 8, 1996. Mr, Lacek has reported that a gradual loss of the transmission fluid as suggested by Mr. Baldwin could not have gone unnoticed by the driver in terms of performance of the unit and taken the unit out of service before the transmission was ruined, Thus, Flying J denies any negligence in connection with the work it performed on plaintiffs truck on or before May 16,1996. Flying J further denies contractual liability as it 4 performed all maintenance in a workmanlike manner and completed all work as stated in its work orders. II, STATEMENT OF BASIC FACTS AS TO DAMAGES A, Plaintiffs allege the following damages for breach of contract: Amount Plaintiff paid to Defendant In connection $557,78 with work performed on Plaintiffs Truck Towing $622.05 Replacement cost of transmission $7328,26 Loss of use of Truck (7 days) $1,050.00 TOTAL $9558.09 B. Plaintiffs allege the following damages for negligence: Towing $622.05 Replacement cost of transmission $7328,26 Loss of use of Truck (7 days) $1,050,00 TOTAL $9,000.31 III. STATEMENT AS TO THE PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A. Whether Plaintiff was negligent by failing to discover the alleged transmission leak during its pre-trip inspections and/or during its monthly truck maintenance. Suggested answer: In the affirmative. B. Whether Defendant breached any contractual duty in connection with the repair of the Truck. Suggested answer: In the negative, C. Whether Defendant was negligent in maintaining Plaintiffs truck, 5 Suggested answer: In the negative, IV, SUMMARY OF LEGAL ISSUES REGARDING ADMISSIBILITY OF TESTIMONY See attached Motion in Limine, V. IDENTITY OF WITNESSES TO BE CALLED A, Thomas P. Lacek, P,E, - Defendant's expert witness B, Doug Stauffer - Former Manager of Flying J C. George Coutts - Present Manager of Flying J D. Leonard Cook - Plaintiffs employee and Driver of Plaintiffs Truck E. Dan Carey - Plaintiff F. Peter Baldwin - Service Manager of Southwest Peterbilt and Plaintiffs expert witness (objected to by Flying J) Defendant reserves the right to supplement this list at a later date. VI. LIST OF EXHIBITS D1, Work order from Flying J Service Center dated 1/22/96 D2, Work order from Flying J Service Center dated 2/26/96 D3, Work order from Flying J Service Center dated 3/19/96 D4, Work order from Flying J Service Center dated 4/9196 D5, Work order from Flying J Service Center dated 5/16/96 D6. Truck Maintenance Report of Plaintiff dated 4/4196 07. Truck Maintenance Report of Plaintiff dated 5/7/96 D8. Truck Maintenance Report of Plaintiff dated 6/2/96 D9, Truck Maintenance Report of Plaintiff dated 6/24/96 D10. Truck Maintenance Report of Plaintiff dated 7/30/96 D11. Curriculum Vitae of Thomas p, Lacek, Defendant's expert witness, 012. Expert report of Thomas P. Lacek, P,E" Defendant's expert witness D13, Complaint D14. Answer with New Matter D15, Reply to New Matter D16, Plaintiffs Answers to Defendant's Property Damage Interrogatories D17. Plaintiffs Answers to Expert Interrogatories Directed to Plaintiff D18. Plaintiffs Response to Defendant's Request for Production of Documents D19, Transcript of Deposition Testimony of Dan Carey D20, Work order from Southwest Peterbilt, Inc., dated 6/14/96 D21, Expert report of Peter Baldwin, Plaintiffs expert witness Defendant reserves the right to supplernent this list at a later date, 6 c ~ " . WORK ORDER N!:! 33608 .' 'rlJ p.f\f- t\1f-f\ 34100 lBJ FREEWAY RR ~2 WASH JCf,.C'f; DALLAS, TX 75210 LUBE ~\c 24 HR,l~g^D SERVICE S'f; (214) 225.3190 TIRES fA. CAJ. / lr Dlk02-, \ IR 'v7r:t. lJ. cn L\ 0 '1.}~.QS \ " \~- Dr') \ Co . ,J)_ \ LeI LUBRICATION ENGINE OIL 1M!..Q!~ . .!f!AN9MISBION .AUX, TRANSMISSION. F.VlL l)TEEnlNG FlU,ID [.f'FULL C~HT 8'FvLl .f!lQtlT DIFF, ,.BA'F\Jl"VlLL REAR iliFF, J.[ ~" ClEANER :----IJ..Q!L, . E,MSOR: ,"'.. . ~EL UFlAN~OHT _ WEIO.HT WEIGHT WEIGHT L/(f (( ~ BRAND BRAND TYPE MIX DRANlJ B,!AND - II H "s;S'," ....' REMARKS q 5S (" ; It I . ' ~ WAIVER. RfLEASG ANO WEMHlTY ARREEMEIIT fOR SUPliAVlSIt'N OR PERFORMANCE Of WORK tlf"I............ _.._... J r.... M" c:::., ...,.."" Solt" "'It -:tN rt*Idr __"'tilt\- "'*'... tl~ F ......J J ..,.:,..~.... """'1'.'" e.-a......... """."oIpfCIt\,.",... ,.......~~........r""'Jb .,..~......",""~rtMf."'''-k'''..."",...,..1Idf'A -..,,_ .......~..fJttWI'_"....not"" .""'l.......W........~""', r~. PIt.,..., c..... ~1l\..1IlOb ,.....".....M. ........."......... ,...,......... "....J;or................ """""'....w".","",,",,," CW'-""N"t ";U-",* ,..., ~N ......,...,... "....~] -:-~ .....HtI'l.,.."'.. "'" """J!.~" oNt .........._""'"CIt..""r.-c"...., 'i'I,NllIl .-.at","'..,.... .....NIlC1~.1 ". M~~ ,,""................ ,.............. .&........,.................... ...........,. hwtWJt.. ~'.._dl..""....'.""_..... W\otN' ..nyonlr:.,..,....,. . '............,'-' I"'N-".~l""'''''''''''''''''''' ........_ '_...~,..._....._..~~J......l....n.. nRI~~...:-'e~ ~ - . ./ IlIUVER SIl)N OFF l.Jff"J>>o...tl\It...,.,..~...............1 O""..',,",b""'" t.9J""1Pffll!'f'l IU~",,"1fId ...".-..."..... ......-I!~...,~.'l~t fjvuuryttOf ". t 1.~'ttIlIC'AI" l1tlllARTlO 1M..., VI VIII' VI UJL.,' -. _.. . .~ WASH J ~. ~~~ t'1f." 1.81 EXIT 17 .l (i ~ (if- CARLISLE, PA 17013 LUBE r.~\c 24 HA, ROAD SERVICE t S~ (717) 243.8850 TIRES p , I i , ~~I , , \ /0 'J,1~ .!5 ,('to ,~ lJ ... c :J ,Ot: , .:J1SfD . ......... ~~f. t\'1f.~ "CtCf'. d.'IJ\C sf"p 34100 LBJ FREEWAY RR H2 DALLAS, TX 75216 24 HR. ROAD SERVICE (214) 226.3190 WASH LUBE TIRES /t11- l' ;:/ I s-,a4- I , 1 .-. ,. )~ I , , , ~.~ . ., ll/J 3~O :J!!f!!Q.A !l!l!..Nl! Oil VB OIL flAHSMISSION !!ll. TRANSMISSION TEERIHO flUID 00lANT .' RAilER o Fill B o AOOED DADOED l-I ADDED a.ADDEO. DADOED DADOED WEIGHT WEIGHT .LIS}?I( S?/I ,'/ rs WAMiIl, AD EASE 00 ItIlENIfTY AOnEEUEIlI fOIl $VPERVlSIOIi OR PERfOAloWlCl: OF WORK ~~~:r.."''' J l".,.. It....,.. .:.t::l..""..............~ ...."....,,,........ Me"""""''' '':JI........ ~_"-flr'" .....1fIlI .....~.::I~...,:,,~:~=;~~:,:.r.;f.,-:::=-.:~~~~:~.. It' ''''IIrWI~....~",''tr''''''''''''Cfl~k'''* )f.,CoIM04'ft 1.........'-' ..,...... ....ew "~.::...n,--,fIClI:1I,ftI "'lNI,..~fI''',"'''' W."".b 'MIo*,~""""""" .....,II......IIAIlf.IU.lMl7Mf.""'..." .,.""w.......wl<<n....v"....,...,__.. .........."', ....._""tk,.~ .1IIl4Ji.__.........,.....,u"'...... ,"*,J. ....c.h~~~UIfilIIlII ..""'_..n-At""J"'MI'lII"..........t,............. ...... J ;'~...J4II" ~'" tftI'........ ......... .......,.".... b'.""'''.' J..'" f\"'J..........~ OIWE~"^~'\.R. 0* .._._ 'lJI'vtEOfF r:JIIO'...""'_ "__...",, O'IO'...I'lof....... ...loJC r....elu...... Uftl......... .~"'.................- ... SuptMo.. o.t.fI _ . ItI:HIjI(:LIN!I TlllrmAllTTll TWUtlllrn '.t ,. . . r -- I vvun(\. v[)LJr:.n I' " .:1,,':;1 I '. (fj ~r.e. tl'1e.r. 1.8t EXIT 17 WASH ~C~cf). CARLISLE, PA 17013 LUBE ~.J\c 24 HR ROAD SERVICE Sf). (7171243.8850 TIRES CA-r- II " II I ~- 7/;).. , - 1/6 I - 7'tO / 11f, 99 ~. tr1J "3. (I'D ~,v1J I-- "'11 ::i" tI ~ tf"" Fill o AODED U AODED ADDED ADDED ADDEP ADOEO o AOO~I) REPlACE Of!~'lO _ IlRAtlD TYPE MIX BRAND lIRAND B - flEMARKS "'o1t1l /I \"~ I~ NAMA. RflEASEANO IlIDELNTY AllREEl.IENT FClll PEFMSION OR PERfOlll.W/CE Of WORK ...............19C .../C...'OI.."...... ~~.. ~....w ...,..... Ih"'""n,-i. .............r.,..J"""""~......~_. ')....,~..... ,-.-,,"......... ,....., ........e.: rlllAll'tI...nktJ"" ...r..........w....~...... ......&.Wofttl..... ~ ...........'""~~....."""'ll . ""''''''''l'''WIOIr ,,'" ~'W.""''''''''''''''..''''J1 w................... Mf......... 'MfirIlIiIIIt4I....,..J~...'WMI'.,.".".....,J"u'lCll,.. ettf.au"arc.v. ...,.c",~ I...,................. a. .stl,., kJlI ~,:;;::. rrtlt.nNf .,...... ',t".' "'.,.,.. ""' "" ,","1f'oM It,".''''''' fJ"""t '"'I'olll'..... .~".,,'. k_....... ,....r. .........~...~CI.:..."IINAIC'4't.....'...N ,:-.tlI f\Ot"".rttlJCll'ltM"... ",..,.. ._._..._... ...,,, _l...,,,...'~..... "'.................11I_..._......__.1 .....__\IIl ",.,"'II1f1"~~. .....UIli'f.M'.,..."N/r.W.............. \, -'~c...V"..~....oY' C-...o . DRN ---- - 3, Plaintiff has identified Pete Baldwin of Southwest Peterbuilt, Inc, as its expert witness on the issue of liability, A copy of Mr. Baldwin's report dated June 13, 1996 is attached hereto as Exhibit "A" 4. Defendant now moves to preclude Mr. Baldwin frorn testifying as an expert on the basis that his purported opinion that the transrnission was leaking fluid frorn a srnallleak over an extended period oftirne is nothing rnore than rnere conjecture and speculation. 5. Under P.RE. 702, 42 Pa, C.S,A" expert opinion testimony rnust be based on scientific, technical or (lther specialized knowledge. An expert witness rnust base his opinion on those facts which he has personal knowledge or on facts which he or she has perceived, ~ Pa.RE, 703, 42. Pa.C.SA Moreover, Rule 705 requires that if an expert testified in terrns of opinion or inference, he rnust also testify as to the facts or data on which the opinion or inference is based, Pa, RE, 705, 42 Pa,C.S.A, 6, Plaintiff's expert, Pete Baldwin, did not have the benefit of any pleadings, interrogatories or transcripts of testirnony when preparing his expert report, 7, Mr, Baldwin did not perforrn any tests to deterrnine the rate at which the transrnission fluid had leaked such as refilling the transrnission fluid and rneasuring the rate of the leak. 8. Mr. Baldwin bases his opinion that the leak was srnalland occurred over tirne on nothing rnore than visual observations after the transrnission was disrnantled. 9, Mr, Baldwin never observed the leak to confirrn its source. 10. The factual basis for Mr, Baldwin's report does not account for the fact that the leak could have rapidly occurred after the last tirne Flying J serviced plaintiff's Truck, 11. The opinion of Mr, Baldwin regarding the rate at which the leak occurred is nothing more than speculation, guesswork and conjecture and is not cornpetent to be introduced into evidence at trial in this matter. 12. Under the Pennsylvania Rules of Evidence, a witness testifying on a matter requiring scientific, technical or other specialized knowledge, rnust be "qualified as an expert by knowledge, skill, experience, training or education." Pa,R.E, 702, 42 Pa,C,S.A. 13, Mr. Baldwin is ernployed as a mechanic for Southwest Peterbuilt, Inc. He lacks any formal education in the field of engineering or forensic science, In fact, Mr. Baldwin has not attained a degree higher than that of a high school diplorna. 14, Mr. Baldwin should not be perrnitted to testify as an expert witness, as his qualifications do not afford hirn the knowledge, skill, experience training or education required by Rule 702, WHEREFORE, defendant FlyingJ,lnc, respectfully requests that the Court grant this Motion in Lirnine and preclude plaintiff frorn presenting expert testirnony on the issue of liability at the trial of this rnatter, ./ / SWARTZ, C BY: .I < ~ June 13. 11196 . To Whom it "ay Concern On la~ur4.y, the 8~h of June 19V&, Halcol~ ~~ecker Service towe~ in a new PeterbI1t, Vin . lXP5D8tX5TN318547, be10nqinq ~o Dan earay. The truck had broken ~own due ~o a trasnmi..ion faHun. On Hon4ay the 10th, WI beqan repalr~. The tran.milllon had fallld due to a 101. of lubrIcant, The ~ot.l o.p.ol~y of thl. unit is approximatelY 34 pint. of lube. Whln we drained. the tran.ml.llon to inspeot the 011, it hId Ie.. than 1 pint of lube. On 1nlpeotion, we found the leak to be at the power ta~8 off (PTO). When the PTO wag iRut.llla the old mountlnq qlsket had not all be In r.moved, a .mall 1~ pilce of it wal loft on the tran.~i.lion and a neW qalket inltalled over it. This Itarted a 8mall leak that over a period of time aauaed all of the lube to be 10lt and the, tranlmll.len to fall. WO inltalled a co~plate new tranlmi.alon and all ralated component.. ' Peta Baldwin Service Manager " lIDUTHWlI' IteUIIIIILT 2800 VASSAR NE ALBUQUERQUE. NM 87107 60&1175.,..,0 AL8UQUERQUE CHANDLeR FL~G9T~FF PHoeN~ TUCSON , I I I I i I I I 'I I DAN CAREY, t/a/d/b/a . IN THE COURT OF COMMON PLEAS OF . DFC TRANSPORT, . CUMBERLAND COUNTY, PENNSYLVANIA . Plaintiff . CIVIL ACTION . . . IOl3 (l~_:,-,~L vs. . NO. q7 . , : FLYING J. INC, , a Utah . . Corporation, : Defendant : N 0 '1' ICE 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 Cumberland County Courthouse, 4th Floor One Courthouse Square Carlisle, PA 17013 Telephone: 717-240-6200 County of Dauphin. 4. At all times material to the claim hereinafter set forth, Plaintiff was the owner of a 1996 Peterbilt Model 379 truck, VIN 1XP5DB9X5TN388547 (hereinafter referred to as "the Truck"). 5. At all times material to the claim hereinafter set forth, Defendant was the owner and operator of one or more truck service centers trading under the name of J Care service Center. 6. On or about May 16, 1996, at 2:50 P.M., Leonard cook, an employee of Plaintiff, took the Truck to Defendant's J Care Service center, located within the Commonwealth of Pennsylvania, at Interstate Route 81, Exit 17, Carlisle, Cumberland County, and requested Defendant to perform a routine "full service" maintenance. 7. At the time the Truck was delivered for the above referenced service the odometer registered 69,932 miles. 8. At all times material to the claim hereinafter set forth, the mechanics and service persons working at the above- referenced J Care service Center were employees and agents of Defendant. 9. As part of the said service to the Truck, Defendant was to change the engine oil; lubricate the chassis; and perform a visual inspection of fluid systems, including a verification that 2 the levels of hub oil, transmission oil, steering fluid, coolant, front and rear differential fluids, were full. 10. Defendant, by and through its employee(s), agreed to perform said service for the sum of One Hundred Forty Dollars and Ninety-seven Cents ($140,97), which Plaintiff agree to pay when the work was completed, A true and correct copy of the work order for said service, No. 3397, is attached hereto as Exhibit "A" and incorporated herein by reference. 11. On May 16, 1996, at 3:30 P.M., Defendant completed said service as indicated on Exhibit "A", including a verification that the transmission oil was "full" and the filler plug tight. 12. After completion of said service Defendant's employee returned the Truck to Plaintiff's employee and assured him that the service had been performed in a proper manner and that all fluid systems, including the transmission, were visually inspected, verified to be full, and found to be in proper working condition. 13. On June 8, 1996, Plaintiff's employee, Leonard Cook, was driving the Truck on Interstate Route 40 outside of Albuquerque, state of New Mexico, when suddenly without warning the transmission failed. 14. Plaintiff' employee, Leonard Cook, had the Truck towed by Malcolm Wrecker Service to Southwest Peterbilt, located at 3 2900 Vassar NE, Albuquerque, state of New Mexico, at a cost of SIX HUNDRED AND TWENTY-TWO DOLLARS AND FIVE CENTS ($622.05). 15. At the time the Truck was delivered to Southwest Peterbilt the odometer registered 80,047 miles as indicated on the unnumbered repair order attached hereto as Exhibit "B" and incorporated herein by reference. 16. Upon delivery to Southwest Peterbilt the Truck was inspected by one of its mechanics and found to have broken down due to a transmission failure. 17. On or about June 10, 199~, the mechanics at Southwest Peterbilt, upon authorization of Plaintiff, began to remove and replace the damaged transmission. 18. As the Southwest Peterbilt mechanic was disassembling the transmission for repair it was discovered that there was less than one (1) pint of transmission oil in the system. 19. Upon further inspection the Southwest Peterbilt mechanic found that the loss of transmission oil was due to a leak at the power take off (PTO) where there was an uneven surface due to an overlap of the gasket. 20. Since the leak was due to the uneven surface of the gasket, rather than a breakage of the gasket itself, the transmission failure was caused by a slow leakage over time, 4 21. In order to repair the damaged transmission the Plaintiff was required to replace the entire transmission and related components. 22. Plaintiff authorized Southwest Peterbilt to perform the required repairs. 23. Southwest Peterbilt completed the required repairs on or about June 14, 1996, at a total cost to Plaintiff of SEVEN THOUSAND NINE HUNDRED FIFTY DOLLARS AND THIRTY-ONE CENTS ($7,950.31), which includes the towing charges set forth in Paragraph 14. A true and correct copy of the Southwest Peterbilt Work Order Invoice, Order No. DW00090, is attached hereto as Exhibit "c" and incorporated herein by reference. 24. While the above-referenced repairs were being completed the Plaintiff was unable to use the Truck for a total of seven (7) daYR at a cost of one hundred fifty dollars and no cents ($150.00) per day, totaling ONE THOUSAND FIFTY AND NO CENTS ($1,050.00). 25. At all times material to the claim hereinafter set forth, Plaintiff contracted Defendant to perform the routine "full service" maintenance on the Truck at or about the intervals suggested by the manufacturer. 26. Defendant performed routine "full service" maintenance on the Truck at its J Care Service Center on the dates, at the 5 locations, at the mileage intervals as registered on the odometer and pursuant to the work orders, as indicated below: Work Order No. ~ DAb MileaQe Location 4/9/96 57,592 34100 LBJ Freeway Dallas, TX 34930 $119.14 3/19/96 45,711 34100 LBJ Freeway Dallas, TX I-81, Exit 17 Carlisle, PA 31444 $178.95 2/26/96 33,849 0718 $149.21 1/22/96 19,556 34100 LBJ Freeway Dallas, TX 33608 $110.48 True and correct copies of the above-referenced work orders are attached hereto as Exhibits "0", "E", "F" and "G", respectively, and incorporated herein by reference. 27. Plaintiff made timely payment to Defendant upon each of the work orders referenced above. COUNT I BREACH OF CONTRACT 28. Paragraphs 1 through 27 are incorporated herein by reference as if set forth at length. 29. As part of the routine "full service" maintenance requested by Plaintiff, Defendant was to inspect the Truck to insure that the transmission fluid was filled and the system intact. 6 30. Plaintiff believes and therefore avers that the Defendant, through its employees and agents, failed to properly, and in a workmanlike manner, perform the visual inspection included with a routine "full service" maintenance, at least as it relates to the transmission system, as such an inspection would have revealed the leak at the power take off (PTO) gasket, 31. Plaintiff believes and therefore avers that this leak would have been evident to a qualified mechanic performing routine "full service" maintenance, from the first such service on January 22, 1996, through the last such service on May 16, 1996, all of which were performed by Defendant. 32. In failing to find such leak and advise Plaintiff of the problem, Defendant did not complete all of the work which was agreed as set forth on the work orders attached as Exhibits "A", "011, "E", nFIt and "G". 33. Plaintiff has paid Defendant a total of FIVE HUNDRED FIFTY-SEVEN DOLLARS AND SEVENTY-EIGHT CENTS ($557.78) for the routine "full service" maintenance referred to in Exhibits "A", liD", ME", "F" & NG". 34. As a result of the Defendant's failure to complete all of the work which was agreed as set forth on the work orders attached as Exhibits "A", "0", "E", "F" and "G", the transmission on the Truck owned by Plaintiff, and the subject of the work 7 orders herein referenced, failed. 35. As a result of said transmission failure, Plaintiff was required to have the Truck towed, at a cost of SIX HUNDRED AND TWENTY-TWO DOLLARS AND FIVE CENTS ($622.05), and to replace the transmission in the Truck, at a cost of SEVEN THOUSAND THREE HUNDRED TWENTY-EIGHT DOLLARS AND TWENTY-SIX CENTS ($7,328.26), for a total charge of SEVEN THOUSAND NINE HUNDRED FIFTY DOLLARS AND THIRTY-ONE CENTS ($7,950.31), as set forth on the work order invoice attached as Exhibit "C". 36. As a result of said transmission failure, Plaintiff has suffered the lost the use of the Truck for a period of seven (7) days at a cost of one hundred and fifty dollars and no cents ($150.00) per day, totaling ONE THOUSAND FIFTY AND NO CENTS ($1,050.00) . WHEREFORE, Plaintiff demands judgment against Defendant upon Count I in the amount of NINE THOUSAND FIVE HUNDRED FIFTY-EIGHT DOLLARS AND NINE CENTS ($9,558.09), which amount does not, in combination with Count II, exceed the amount requiring SUbmission to Arbitration pursuant to local Rules of Court. COUNT II NEGLIGENCE 37. Paragraphs 1 through 27 are incorporated herein by reference as if set forth at length. 8 38, Defendant, in undertaking to perform routine "full service" maintenance on the Truck, including the visual inspection of all fluid systems, their fluid levels, and their external integrity, owed to Plaintiff a duty to exercise due care in performing such service. 39. Defendant, in breach of the duty described above, negligently and carelessly failed to notice the fluid leaking from the power take off (PTO) gasket and advise Plaintiff of same. 40. As a direct and proximate result of the negligence and carelessness of Defendant, through its employees and agents, as described above, the transmission on the Truck owned by Plaintiff was severely damaged and failed to operate. 41. As a further direct and proximate result of the negligence and carelessness of Defendant, through its employees and agents, as described above, Plaintiff was required to have the Truck towed, at a cost of SIX HUNDRED AND TWENTY-TWO DOLLARS AND FIVE CENTS ($622.05), and to replace the transmission in the Truck, at a cost of SEVEN THOUSAND THREE HUNDRED TWENTY-EIGHT DOLLARS AND TWENTY-SIX CENTS ($7,328.26), for a total charge of SEVEN THOUSAND NINE HUNDRED FIFTY DOLLARS AND THIRTY-ONE CENTS ($7,950.31), as set forth on the work order invoice attached as Exhibit "C". 9 p.o. Sox 65e8 Phoenl~, AZ 15006 21SOO W. McDow.1I Rd. Phoenl~, AZ 85009 ,I ServIce - (1102) 272-8:132 Peru - (802) 272-8223 Wetta - 1(800) 873.8312 Main - (602) 272.7611 Or-d.", Na_ D..te nUAAMOI ,_ &/14/9& 1I0PIol CR~'R IPl\'I;;lIIii~ CU5to.e.. Copy ....- CAS H..... ~.II"'" ---7-" Ti.e lC'l! 7.51 B DAN CAREY I T , 0 L CASH CUSTOMER - MAIN SHOP lXP5DB9XB'N~Ba~47 Un it 380547 Reading In 0 00000 Ar-rivAI ~/10/9' 19910 Pll Lie..",.. POIt At 12.19 379 ( ) CUlt.lI 1014 0,,1 I veo"Y GVW SWlI 0/00/00 R.adlno rill'"'' 000 Equip Own.r 1014 CASH CUSTOMER - MAIN SHOP THANK YOU FOR STOPPING BY, WE ___.________._____________________....5 U M Seg Dp,;""i pt i an t.abo.. 01 TRANSMISSION 784.00 APPRECIATE YOU AS OUR CUSTOMFRI MAR V----------------------- Part5 Mile. T~~l 5,382.4~ 1,330,92 7,511.J7 ------------ ------------ ------------ --..--..---..-- T I) TAL S 784.00 S,382.45 1,3!50.92 7.';;I'I.J7 T~K J.', D. I MISC SHOP SUPPLIES SALES TAX ~,5&.;: '+7,04 385.'3'" -- ----- --- ... PAY THIS AMOUNT ... custa.... Total 7,9:10, :51 __. _______._._______________..__~_________________________.h__..________________.. .. 01 TRRNSMISSION Cod~1 PB M01 001 SW* . 215 MAXINE PROCTOR r:llnTOMER COMPLAINS OF ' CHECK TRRNSMISSION FOR GRINDING NOISE, RTXl~7108 REMOVE TRRNSMISSION, OIL COOLER AND LINES RND FLUSH OUT WITH SOLVENT A NO INSTALL RND HOOK UP. SET UP REMAN TRANSMISSION WITH YOKE, BELL HOUS lNG, olSASSEMRt.E AND CLEAN PTO, INSTALL TRANSMISSION, INSTAI~L PTO, Sr.,. BACK LASH ON PTO, HOOK UP ORIVEt.INE RND GRERSE, AOD SYN"IHL::l Ie LUBt. A OJUST CLUTCH, HAVE ORIVER ROAD TEST, RECHECK OIL LEVELS AND LEAKS, FOU NO OK, . LRBOR CHARGED. Labo.. R.ount "'B4. 1~0 PR:c1 By f3t?,v J< -/d g,4tfJ k -Il I ~ Cf5/J,~~__ W;Rf 1!f1p9fa OtSCtJ\llMIA OF W-ARANTd!:S . "'" on", "I'I\11'UIO' ~ 10 tIW ~It(tt ..1"d'0I' ....,,;00 lIIIIOf' ,)1'0 1,.,0&.0 wnc:h moIr be ~ by.... ~I'()t. 'I'M M41f ~...trJ "flllIy CIoKI.,,;,~ a' 'IlfO"DI'4IOt ()trrIOt ..~,... 0I.ny*ec1 ~"'9.1f'1.,..,*", ....w'tIftt'n r:J lft..w.anlilb'l"1 Of r...... fOf . pAItQM, putpOM. t"4 ..,,,* asIr..m6lI "lOf' ~I~ .".. oint' PtIWlIn &)..".. tit ll=''f ~f III Q:)M0C1i0l'l .'''\ fl. UIt tI",., . ....~., ""'''''"'''''"...... e,_ "'oil no! bo"'-" _'''''" _ >ny ~dI_ -~;/OI 110 ptOpt/'t)'. d.\1'I'\I9*I 'or 10M Qr va. 'a. \J 1I1TlO, toel ,t ~Itt. Of I,,",,", 0' "''/ 0"" ift~ 4~ ~.aru l'ICI ,""1NbJI 6"" t. dO.)'l. II'Of't ",u, .", "".11 P'rO ""~'k IG bel 't\ltl'\OCJ WRN,i aA"IOfU..' ~l",.,.~,. lilOOCU .,. uYb)OCl to" 1ft~. handII"I~' pi", Ih ." ADKl' '-'101, t\1 ~ on: Spfo. CWOtt p&/'kP. ~I(A."(." ~11 01 0();,~"''l1. CSI~ PI"". 01 ptda 1rI"')~. ~uv. ~ .....11 oh-.__"Y ........ ..t\t""tc;l l .~,-, ALL AMOUNTS QUE AND PAYABLE BY THe 10TH OF TH~ MONTH FOU<JNINO PURCHASE .Jl.HIBIl c I ,!J- pAQ. or ZO'd d60:90 to-LO-~dV , . i WORK RDER N~ 31444 "rJj ~~"- t'1"-~ 34100 LBJ FREEWAY RR #2 WASH ~ ~c C~ DALLAS, TX 75216 LUBE '!J\c"- 24 HR. ROAD SERVICE S"-~ (214)225-3190 TIRES " /tJ1- /11 ) I 5:<UJ- /~ " ... I I )~ ,ffi:2. tl/l 31)0 WORK ORDER "'ll 0718 ...~ 'rJJ . ,. WASH '., C~~~~~1~~ 1.81 EXIT 17 CARLISLE, PA 17013 .) C~C 24 HR. ROAD SERVICE LUBE s~~'4~ (717) 243-8850 TIRES ( r C:.. e- . t:-~ : ~- ~tE- , I \ /() ?, 9~ .5.('<) r:; II ,.J I;) :J , Oto .:JI#) LUBRIC4Tlq~ ENGINE OIL HUB OIL m4NSMI.SSION ~116-16'J GT~ERING FLUID COOLANT Ff10NT DIFF. REAR DIFF. AIR CLE4NER SUPEAVISOR, ., DR4ND.. ,p u? 0", (' (..,. "If t? cr do'. ?'f 5.'1d REM4RKS 3B4J' /tf7.;)( s WAlVfR. RELEASE AND INDEMNITY AGREEMENT FOR SUPERVISION OR PERFORIMNCE OF WORK C<lM""'~ 't. )),m,.. ~c,"~.llIm'~wl'., ""06~ GI'..o.'l :'hrt<b R1'.'rX"';wl'l1~ ,',"*,I'YI 'r tU'lW(tl/'W ~"~'I~ .~:.'l\J~&l"""'.&\l r.. "''41 :....1/'>T1WIIft~ ".......oJ....~'I..,..lll"It"'I/l ''lIIrI''lYr Oli'.~'UIC".:AlI,."'i..~rltr~J'vl'UlrWl."!)I'.J..r.'l(l.I,."" ...l6 .e'''''I.Wl.ln.,r"""",,,l.;fhlfJ .1.1IrJllll ,r1~' tot....., r"VI: .~..t-,,^N 1\I""~':CI!\ OI~':o34l',lt'_'; \MlI~"'" 1j,ll':'Jl'f\'l' -'If ''''''~. /ltI'll Ptl'V"td :1'11'l1Ul." .,'...'-\Atllll .....,..,.. ,ut ~A" [~ormt: t') r:, 'lJ,j IIH'WWlN'1'.....Wtr. ,,,,,,'\'off'.( ~. "\lWII'.:u' .tC:...J;Tf'I' .~." (~"'(IrI"" 1~'rr.,A J'It<"U ,. ,bf,.., 'I'\oi'. ....lllltlllfh'r ,;W'~.r 'I'\f lIf('Ulft --.\1..... ~," ,-oJ '~.Ml..r...II\'l).~'.. .~.\fIl(..l;. ".r"",""''''~'i "~1""1 ,..".....~ &I.T"t lk" ..":.u,...~,,.'.....loI'tIo\.......,...~](J( .;.e11.. .........'" .,.11C~....,.,'.....t"ll'lIIf'l"""'ro ~..,M.t,f~......,.."~wIJ,'''''1l1' 1.)..'1(.", Illt..lnk'I"'Ii"",ll...r\~l'tl... It." ~):.'llOt ~.'~:""'L.foIM:A'rU":':fl..fU/'fll" '1"\.l""'4"\.~'ty\I\~Jb""",'.'" ,'.'.' ,L'rU'14 .",..ewfWt 1 "......~".u"--.7~(~:z;[:.'.~""...,."....'J,............."." DRIV~~. ...... UllIVt-It WON urr n"II'&."''''''llOtC"~ Dr''''lo1\ltoJl\.~.r..'Wl~~ C 'll)u' r"1.......-J D()l'-' ~"" "'1 ". ::Jc,...,.iA""U-1~""'~ OI"Wlilt'r,lIIDllI-lt't WI "". '*"-'d'" 1"t'-.... hi" __ICe_pM.... SuptM..,r ~ yt,.. O'lWlt TECl'~ICI<NS I TIME 5TAIIT~U' 11\11' '''',Cnfl1 );HIBll F PAG[ I or I ., BO'd dtt:90 to-Lo-~d~ - ..---- -.------- . -- - . - '. - . . ~ . WORK ORDER N~ 33608 'r:.h ~~~ ~'t~~ 34100 LBJ FREEWAY RR #2 WASH ~c Cfi. DALLAS, TX 75216 LUBE S~~\C~ 24 Iol!:l IWAD SERVICE (214) 225.3190 TIRES C,4 / Lf Ov.02-. \ 1!..J. . L'7 , ).. lJ. l~'f7 L\ 0 '1.)~J.. \ \~- C/J \ l.c.: L.. ~- \ ULL FULL FULL r::rFlJLl r; ,pULL FULL OOK n TRAILER r: FILL DADOED U ADDED DADOED LJ ADD~D n ADDEO DADOED U ADDED REPLACE . ~EL ~RAN~EIOHT WEigHT WEIGHT WEIGHT Lfif((L FI~S"," .... ' REMARKS q S5tJ, ; It! ! WAIVER RELEASE AND INOEMWTY AOHEEMEIIT FOR SUP~RVISIOU OR PERfORMAUCE OF WORK ,...,.."......~..I(.~ '...".J(.If....~"'~.\t, ~oC\"'WII' ""./1'\ ,'I".-'....:.l'.....tr...,ttlt'(""....... 11~,r\'*"yrt ~.~,r~)J't...',~\A.ll'W'f ""'''4''-<< C..1'''''''''~''~ ...,..,., 1''If.JljH' t'l1....K "WI'''~ ~~ar:"l(.tI...."''"'..'',Jl... 'Y".....::l*)'hll."~~".rUo"'. Ioltll .11",. u~w,rl""'r.' "'t,",. 1\1II',.,..l'IIJltUof'....,rlllrt.'\Iflt4.....V'i...I1 .....,..." Ie t'o,'..... , ! 1...'It......""'ltVl~':"_I'""'IP'f'I"flI'l'....~J. "'.....P...,..ct _...~'PO'''' ~]D'l"',.-JJ;lr-t1a,.. .......N........",.... ,...,...,,~.,..II~.'\ACw,'UI"". ,.,'" ',.t')'" 'tro...., IIoItI\'\f....awlt't\lI. .~rc',e.$i"..'.r".....,toT rrnuaf\ -,If." '.... .'W't,' 1,.~:,""It'lUllt'.I"""" ...,..t.'(JIt'I...vt"'..j't...'9~.r,.":"o.., \.0*"',......"'" rt' "'.'1.I-~''''''''''.''l(1~ .,... .....\r<1T"."a~.t,.......;.:HI"".:N --.,,,f_,.,.....,II.'.C'!:, ..,..r 'II'I~.'.'II'.,..... ,~"'1lI ",,,,.,."\,l1'l'" l1".,.,I('J.OVI1(...I~...,...."'l"t....(f... ,,~, ",to","'" ,....{'It JUk\Tt'."I".,...,.~1 . If.... l"Jt\loK'rl f"r"') :..."" "I,.""",,,,,,. J JV"t~, ~'"~U''''''~;;::; "".""W"'.''''''''''':':J?'~'''~''''''''>'' OAIV~ _ .:;r~;J--:-'<,;o<A ~C::::_~ ./ llHIVER SIIlN OFF lJ"f,p........AloIII)IM ~"'InII'W\llflMl'l..IOI.rOI'q' Ofl~lr~',.At>r,m LJO.Jl""ftJl('/YI"t't ",(4IJl"""""'1'd L.iII"~'l""I'O'1 "--I!~""''''''''~ "3voorvitor . I)I~ . "I 't-l,;Hf.lIC'ArtS I 1f.(E SlAAlEO TIMHU!':\I1 ,l\HI811 (; p~ or I , DAN CAREY, t/a/d/b/a DFC TRANSPORT, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW VS. FLYING J, INC., a Utah Corporation, Defendant NO. AFFIDAVIT DAN CAREY, being duly sworn according to law, deposes and says that he is the Plaintiff in the foregoing Complaint and that the facts set forth therein are true and correct to the best of his knowledge, information and belief. Dan Carey Sworn to and subscribed before me this day of , A.D., 1996. Notary Public ~ >- "J 9~ ,. ~ .. U I~ 1,;'"; ...-:.. ( j-.. cL: ~- , ". . (."i .. .j T' (~. ,-..,:, - 11" ...... '1 -' l~ , '. ;ij ,. Le L,. :..... I' C'. r- ) c' 'J ,.:J "" \.. . Q "0 ~ ~ ~ c. ~ ~ ~ ~ .......9 ~ ... -....s. - ...... \;> ..::J' A ~~~ 25. Denied. After reasonable investigation answering defendant lacks knowledge or information sufficient to ferm a belief as to the truth or falsity of the averments of this paragraph and therefore. they are denied. 26. Admitted. 27. Admitted. COUNT I - BREACH OF CONTRACT 28. Defendant incorporates by reference paragraphs 1 through 27, as if fully set forth herein at length, 29. Admitted in part. denied in part. It is admitted as part of the services rendered by defendant on plaintiff's truck on May 16, 1 996 that defendant determined that the transmission fluid was full. By way of further answer, it is specifically denied that defendant was to perform other services for the transmission including determining that the transmission was" intact." Strict proof demanded at time of trial. 30. Denied. Answering defendant specifically denies that its conduct was the cause or substantial factor in bringing about the alleged damages and losses claimed by plaintiff. By way of further answer, answering defend am specifically denies that defendant failed to perform the services rendered in a proper and workmanlike manner. Denied that defendant had a duty to inspect the power pto gasket. Denied that defendant failed to observe a leak at the pto gasket, Denied that a leak at the pto gasket existed at the time of defendant's service. By way of further answer, answering defendant denies that it was required to inspect the "transmission system" as part of the services being performed by defendant on the date or dates in question, other than 5 SWARTZ, CAMPBELL & DETWEILER ATTORNEYS AT LAW' 1601 MARKET STREET' 34TH FLOOR' PHILADELPHIA, PA 19103.2316 t . I ~ , determining that the transmission fluid was full and the filler plug tight, which defendant did. 31. Denied. Answering defendant specifically denies the averments of this paragraph in that defendant's conduct was a cause or substantial factor in bringing about plaintiff's alleged damages and losses, Answering defendant denies the averments of this paragraph in that they allege defendant did or failed to do something required of defendant in the course of the services defendant rendered for plaintiff. Defendant specifically denies any and all liability to plaintiff. 32. Denied. Answering defendant specifically denies that it failed to find the alleged leak and/or advise plaintiff of same. Answering defendant specifically denies that it failed to complete any and/or all of the work indicated in the work orders attached as Exhibits "A" through "G" respectively, By way of further answer, answering defendant specifically denies that its conduct was a cause or substantial factor in bringing about the alleged damages and losses sustained by plaintiff, 33, Admitted in part, denied in part. Agreed that the sum of the invoices set forth in Exhibits "A" through "G" are the sum of $698,75, for which plaintiff has paid defendant. Remaining averments are specifically denied. 34. Denied. Answering defendant specifically denies that defendant failed to complete any and all of work set forth in Exhibits "A" through "G" and/or violated or breached any other duty, contractual or otherwise, to plaintiff. Answering defendant further specifically denies that its conduct was a cause or substantial factor in bringing about the alleged incident and/or damages and losses sustained by plaintiff, 6 SWARTZ, CAMPBELL & DETWEILER ATTORNEYS AT L.AW. 1601 MARKET STREET. 34TH FLOOR. PHILADElPHIA, PA 19103-2318 evidence of fluid leakage was just as visible to plaintiff's driver as to defendant's mechanic. 47. Plaintiff failed to make reasonable inspection and observation of its vehicle which could have revealed the condition complained of in plaintiff's Complaint. This conduct was the sole cause of plaintiff's injuries, 48. The transmission fluid level in plaintiff's vehicle was full when defendant completed the service on May 16, 1996. Any leaking and/or reduction in transmission fluid occurred after that time due to no fault of defendant. 49, Defendant violated no duty owed to plaintiff at any time relevant. 50. Plaintiff's claims are barred and/or limited by the terms and conditions of the Uniform Commercial Code, 13 P.S.A ~ 1101 et sea. as adopted in Pennsylvania as it relates to this case. 51, At all times, defendant and its employees acted reasonably and with due care under the circumstances. 52. Answering defendant has not breached any contractual duties owed to plaintiff at any time. 53. Plaintiff's damages and losses are the result of improper actions on the part of plaintiffs, co-defendants or other persons or parties not under control of answering defendant, 54, Plaintiff's damages and losses were caused by sources, persons or parties other than answering defendant over whom answering defendant had no control. 10 SWARTZ, CAMPBELL & DETWEILER ATTORNEYS AT LAW- 1601 MARKET STREET. 34TH FLOOR. PtULAOElPHIA. PA 19103.2316 I I I l f \. :, 02/05/97 14:45 ]-CRRE SERV.CTR. CRRLISLE,PR ~lIW-(11'-l9""1 l'tl2ll s.lJ('lRl;? cnl.y'lJi:'Ll. . NO. 888 P014/014 l2152994343 P,14/14 . . ~EJMTJ.QH Thll UndUrlllonlld lIurlfles thlll the hltt!! lIet flllth hmllin /lrll true nnd correc1. Thll undurslgnod undllrstend& thltl felsll Gtlllumlllltll hellllnlllu ITllldll Gubjllct In tho punllltitJ& (If 1 B r'Q, C.S.A, ~4904. reletlng to unoworn IIIIGillr:lltion to authorltle6. 1J..,,_Sp..trtL__- Anawtl tn r.L1,nlltllln' \~"II NI;l'N MDlltr KWAnTZ, CAMPRIiLL . DITWEILI!R _HanNI'S _T LAW. \00\ ...RKr.T STAEEr':>Im FLOOR' PHII,'Del.PHIA, PA 19'0'.23,. TOTAL P ,14 6: Cl) :.- ~ -:: I- I-" ~", ~ " . ) 6:( :.:: )~ . '. ~F: c~. .J ;1: '-)..;10. ~f:, C;:, .':<;:! , ~1 :"9 ~'"..' :- ,0: .;;;: , '.'-fW r-: ." I,. :..: ..':~ 0 ,.... :"3 0'1 C.J responsible for any of his damage, injuries or losses. By way of further and additional reply thereto, it is averred that the injuries, damages and losses sustained by Plaintiff were caused solely by the failure of the Defendant to properly service the Plaintiff's vehicle, all of which is set forth in Plaintiff's Complaint and incorporated herein by reference thereto. 46. Denied, and in reply thereto, it is averred that Plaintiff's driver's signature upon the work orders signifies that the work requested was completed, not that it was done in a workmanlike manner or in accordance with acceptable repair and maintenance standards. 47. Denied, and in reply thereto, it is averred that Plaintiff, his agents, servants and employees at all times relevant to the claim as stated in Plaintiff's Complaint acted reasonably with due care under the circumstances to inspect and observe his vehicle, 48. Denied, and in reply thereto, it is averred that the damage to Plaintiff's vehicle was caused by the negligence of the Defendant as set forth in Plaintiff's Complaint. By way of further and additional reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference. 49. Denied, and in reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference -2- thereto as if textually set forth at length. SO. Denied, and in reply thereto, it is averred that the claims of the Plaintiff against Defendant are in no way limited by the terms of the Uniform Commercial Code, 13 P.S.A. Section 1101 et seq. By way of further and additional reply thereto, it is averred that the Uniform Commercial Code has no application to the facts of Plaintiff's Complaint. 51. Denied, and in reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference thereto as if textually set forth at length. 52. Denied, and in reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference thereto as if textually set forth at length. 53. Denied, and in reply thereto, it is averred that Plaintiff's damages and losses resulted from the improper actions of Defendant and no other person, co-Defendant or Plaintiff contributed to Plaintiff's damages and losses. By way of further and additional reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference thereto as if textually set forth at length. 54. Denied, and in reply thereto, it is averred that the Plaintiff's damages and losses were caused solely by the actions or inaction of the Defendant as set forth in Plaintiff's -3- Complaint. By way of further and additional reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference thereto as if textually set forth at length. 55. Denied, and in reply thereto, it is averred that the action filed by Plaintiff against Defendant was filed within the applicable Statute of Limitations. 56. Denied, and in reply thereto, it is averred that Plaintiff at all times acted reasonably with due care under the circumstances having provided the required and necessary repair and maintenance of Plaintiff's truck which was damaged solely by the actions and/or inaction of the Defendant in failing to perform the services as stated in Plaintiff's Complaint in a reasonable, workmanlike and competent manner. 57. Denied, and in reply thereto, it is averred that Plaintiff at all times acted prudently with due care to mitigate his damages. 58. Denied, and in reply thereto, it is averred that Defendant's conduct was the sole cause in fact and/or proximate cause of the incident at issue and which caused the alleged damages and losses claimed by Plaintiff. By way of further and additional reply thereto, Paragraphs 1 through 42 of Plaintiff's Complaint are incorporated herein by reference thereto as if textually s~t forth at length. -4- ~- .::, ,,,:,;' C', . .- II.. '. '" f .. l~ ~ '. .' <.', , r. r: .. , ,. tl.- I I ., . -- ". l', " ; ,,-; 'J >4 r-. L""; c:: j.: ." ," ("; " ,.. U Ct. :, .' L,) .":1 , ! c .' (' " ... L. :.. 'J , .... I C- L" ,--J '- DAN CAREY, t/a/d/b/a DFC TRANSPORT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION VS. NO. 97-1083 FLYING J. INC., a Utah Corporation, Defendant PRAECIPE TO SUBSTITUTE AFFIDAVIT TO THE PROTHONOTARY: Kindly substitute the attached affidavit of Dan Carey, Plaintiff for that of Robert W. Feeman, Esquire, which is attached to the Reply to New Matter, the original of which was filed on May 28, 1997. FEEMAN, MESICS & HOPSTETTER Date: fn!f) 9; Ifty? B . ~ Feeman, Esquire I #06317 247 S. 8th St., P.O. Box 25 Lebanon, PA 17042-0025 Telephone: (717) 272-3477 Attorneys for Plaintiff 1 1....- I ....un c. , -...1-1.... -.- . ~. a.=.:...... l ,-_.1 ai -., I .--~ . ,. Dbn Carey, t/a/d/b/a DrC Transport 'is. Flying J. Inc. a Utah Corporation " 97-1083 Civil Term "c. :?- ;';ow, March 3, 1997 :9_ T S.----- O~ C~G:::.=.:...1_'W cot~':'''!t :::l~ co - .~..:....:~ - -..., :_-'1 C:--'- '-. ......-- oi Dauphin C'::C::'f ~ ..__ff. :.:.:.s ',V-::-..., :"'-- - --- ----- ="; ":_to_":_ \"..:_! _.....:_ ... .:.._ _t_ _--..: -:-...--.. .. - ..... - ....~--" ... .. , :-~ ct == :1~:_=. r~-/<~ ~e"~ :t C;'::::::er'..1:Q C,:n.:.::y. ?:. _~d2.vit or S~:-nee So :.::..-w::. !::::::: cr C"u.:.:r. ?:. Swe:: :.:C! r.::-~::e.: bee:: -- ,=" : ~.., ":' -.. --.... l~_ CJ::'l" S~""'1C::: ~~'.GE s .J...~: .:...:.).-1.;-;:: ~-_. s ._ --1 {, t. .~. r ,l?7?J7 ..." 'fl, rt ' / " ,n"7-1'L ' ~. '., () Y'"J77r;' 'H/tC/. ... ~. i'l: 1,- (': ~ .' .. ..~ " J - '.', t ( " , , .. , ,; " " ;:~ -. . r;' J) ~ . l_' .:.:) , , , "- I . " ~..t ~;; " . "j ". , ( :..: :..1. I .-n '. '-' 0'1 ~j ~,~ , Ii 1M -ffl. ~,~ ",? ~"'1Ir;/' , ~'fJ ,~,(/ '~':'I.~ ,."r' ......./ '.') l~1 . , ">- L() ~ !.:: t'.: " ~ ,~ ~.~::~ )'.. ( , , ':).....;,.> ( .- . ...-: '. ,- :::..t .:". . ".- '., '=' -~> c,.; <- c:.._ LIJ " Lu IC~ (,~ ~j I:..; C'\ U , v' CERTIFICATE OF SEIWICE I. VINCENT lIOZZI. ESQUIRE. attorncy for Dcfcndanl Flying J.lnc,. hcrcby slalc thallhc forcgoing documcnl was scnl via facsimilc and by firsl.c1ass mail. poslUgc prcpuid on Ihc dutc scl forth 10 Ihc tollowing: Robcrt A, Hopslcttcr. Esquirc F1mMAN. MESICS & HOPSTE'ITER 247 Soulh Eighlh Slrcc\ 1',0, Dox 25 I.cbunon. I' A 17042-0025 / Oalcd: 1/ ,1 , . SWARTZ,CAMPDEL & :'I'WEII.ER ! 1/' "-- , / \ Vinccnl J, lozzi. Esquirc,: 160 I Murkcl Strccl Philadelphia.PA 19103-2316 (215) 564-5190 Allorncy 1.0, No, 50688 -~ SWARTZ, CAMPBELL & DETWEILER ATTORNCYS AT lAW '0:;3 NORTH OUKE: STAEETolANCASTE:R, PA .'60,," ">- In ~ r' -~ ''J ~~ ," -:...1< -) ~;;.: )",-. . '.1. . .~. " :}:'I , , ~ '-:.":l (l) <'I 1"- ,~ ';,1" t._ 'i1; " .~tl.. VJ ..1 :;,.-, ;-) u' u ~ c> ,-- ~/C (~ ;~ .J'. f1:~ ...~ o- r), ~. 2,i \.;:-0, Ull ." G;,' : ;=-: f" I' 0 C. U'. ( , -' 11 Hoffer DAN CAREY, T/D/B/A DGC TRANSPORT, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V 97-l083 CIVIL TERM FLYING J. INC, A UTAH CORPORATION, Defendant APPEAL FROM ARBITRATION IN RE: CONTINUANCE ORDER OF COURT AND NOW, January l2, 2000, the plaintiff has requested a continuance of the case until the next term, which is granted over the objection of the defendant's counsel. The court directs the parties to appear for a pretrial conference the next time around, and the case to be relisted by either counsel for the next term. By the Court, Robert A. Hopstetter, Esquire P.O. Box 25 Lebanon, Pa. l7042-0025 For the Plaintiff e E. Hoffen p..,~, J ,Co;uw~ /. ,2C-(}u 1; ,Pf1\Lu Vincent J. Iozzi, l60l Market St. - Philadelphia, Pa. For the Defendant Esquire 34th Floor 19103-23l6 '-, Ii"". :\'-,.' \.';. /'\1 ,:.,'" '., . ....1'"\ '. \l . ,. -, .. ~. . , ., I \. , } \ ,..... .-:" '. .,- - ..... t ~, :mtf r . ' '[$1 '''J I' i61 .. Z \ ~~'1 .' - $ . ,,' ,,~-. .- Q I DAN CAREY t/a/d/b/a DFC TRANSPORT, PlaintilT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION vs, : NO, 97-1083 FLYING J. INC., a Utah Corporation, Defendant ORDER AND NOW, to wit, this _ day of . 2000. upon consideration of Defendant, Flying J,lnc's Motion in Liminc to Precludc the Tcstimony of Plaint ill's Expert, Pcte Baldwin, and thc Responsc of PlaintilT, Dan Carcy Va/d/b/a DFC Transport. to Defendant's Motion in Limine, it is hcreby ORDERED and DECREED that said Motion is denied and Peter Baldwin is pcnnittcd to tcstify as an cxpert on the issues of liability at trial. BY THE COURT. rtJ' -t\x: {\\ e -\h, ~ (Q\(.. hq~ S<>t\ \ <:> d ,J. , S. No response is appropriate, as this averment contains no statement of facl. 6, Admitted, However. Peter Baldwin did have statements made by the driver as to what had occurred at and/or prior to the subject failure, 7. Admitted, 8. Denied, Peter Baldwin's opinion is also based on his experience with Peterbilttransmissions and the differences between a failure caused by a catastrophic loss and a loss over time, 9. Denied, While Peter Baldwin never observcd the actual leak leading to the transmission failure, he did observe the condition of the transmission. intema\1y and externa\1y, from which he was able to identify the location of the leak, 10, Denied. Peter Baldwin's report does not address a catastrophic loss at a\1 and Mr, Baldwin will testify as to the facts leading to his ruling out a catastrophic loss, II, Denied, Peter Baldwin has the expertise from his years of experiencc working on Petcrbilttransmissions to opinc as to whether a leak was catastrophic or gradual. 12, No rcsponse is appropriate. as this avermcnt contains no statcment of facl. 13, Admittcd, 14, Denied, Peter Baldwin can be qualilicd as an expert in diagnosing. identifying and repairing truck transmission failures duc to his training as i \ 0:: W -I ~5<o ~.2~ OUoM Il/S= ~ CIl '<I'M .!:: -I M 0 ::1-1 I ~ C'W...O> l1lCOGl~ Wa.GI '~~~~- .2 () Qj ,!!! . _ ~.c -'~11l.9- Co:::E~ g :g; 0 ,~ ,_ :> CO .c >(/).-0. Iii W II> ~ ~ ~ N :I: ~ Cl ~ iii <l: :I:II>D. f-NZ ::::lXO OOZ 1Il1ll<l: ....Olll ~D.~ I , , i I I i ( 1 I I I I i I I ; I I , .. 4ll .S! Ul_ c,QI ~~ O/lcn l1~ ,- Cl Ul,_ <( ~Wlt)a. ":..c:N C"S )( r:: l\l 00 0 EcnlXlc: Qlf'o-cjll QI '<t 'QI LL.Na.-1 tu w LO !: ~ I/) 'i' ~ N :l: :e ~ ~ W <( ;rLOQ. t-NZ :lXO OOZ I/)m<( ....Om ~Q.~ ~ It) ~ o I N ~ f'o- ...... ~ ('J ?; L.. 1['; <. ':5 .'- (~ , '.~'; 8~ :~' . 0<;: , , . :1::;; ..- , " '~ '::' :."tf) t. )z , ~:-' ;.t~ ,')LiJ ...-: ; J1Cl. -. :fE , <::1 ::l ,-, 0 U ~""lZi,,~::N;d.' ' I l ~": ii : ~@it : Q 3 3:: ~ d'~ - - ~ ~ / PB limA . '-e..'-"' 1005865 U,S, POSTAGE '. .. I \j~ LAW OFFICES SWARTZ, CAMPBEll & DETWEILER 160 I MARKET STREET 34TH FLOOR PHILADELPHIA.I'A 19103.2316 1',- 3, Plaintiff has identified Pete Baldwin of Southwest Peterbuilt, Inc, as its expert witness on the issue of liability, A copy of Mr, Baldwin's report dated June 13, 1996 is attached hereto as Exhibit "A" 4, Defendant now moves to preclude Mr, Baldwin from testifying as an expert on the basis that his purported opinion that the transmission was leaking fluid from a small leak over an extended period of time is nothing more than mere conjecture and speculation, 5, Under P,R.E. 702, 42 Pa, C,S.A., expert opinion testimony must be based on scientific, technical or other specialized knowledge, An expert witness must base his opinion on those facts which he has personal knowledge or on facts which he or she has perceived, See Pa,RE, 703, 42, Pa,C,S,A. Moreover, Rule 705 requires that if an expert testified in terms of opinion or inference, he must also testify as to the facts or data on which the opinion or inference is based, Pa, RE, 705, 42 Pa,C.S,A, 6, Plaintiffs expert, Pete Baldwin, did not have the benefit of any pleadings, interrogatories or transcripts of testimony when preparing his expert report. 7, Mr, Baldwin did not perform any tests to determine the rate at which the transmission fluid had leaked such as refilling the transmission fluid and measuring the rate of the leak, 8, Mr, Baldwin bases his opinion that the leak was small and occurred over time on nothing more than visual observations after the transmission was dismantled, 9, Mr, Baldwin never observed the leak to confirm its source, < - :c :E ~ 97-l083 Civil Page 2 defendant's maintenance workers were careless and negligent in not noticing a leak in the transmission fluid from the power take off gasket. When plaintiff initially purchased the vehicle, he had some equipment adjustments made to the vehicle, which involved the gasket in question. Both sides agree that the gasket was improperly installed at that point; however, defendant claims that inspection of that gasket was not part of their regular service maintenance. Plaintiff has an expert witness that he wishes to call in rebuttal and indicates that that expert has a problem with the trial schedule in our court this term. Plaintiff has requested a continuance of the case until the next term, which is granted over the objection of the defendant's counsel. The Court directs the parties to appear for a pretrial conference the next time around, and the case to be relisted by either counsel for the next term. Plaintiff's counsel is directed to file a complete set of instructions, for the trial judge, dealing with all aspects of liability and damages; he shall do this within four weeks of receipt of this order, and defense ~ I.f) ~ N ..,:: (!: ~Q. G~ c... ~'. - ," :z: G':.(. ~, 0: '-' -1: ~..: fL. >. ':I~ Q(-' :~U) c,c:: ~ \.1)1..;- - ~Z it> c:: l_Z . I~.IW j"': -~ ran... :r: " "" "', C> 3 c C> , DAN CAREY TIND/B/A : DGC TRANSPORT, Plainti IT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LA W FLYING J. INC., A UTAH CORPORATION, Defendant NO. 97-1083 CIVIL TERM ~ ORDER OF COURT AND NOW, this /2- day of May, 2000, upon consideration of the Stipulation filed by counsel with respect to the issuance of a subpoena to the Custodian of Records - Peterbilt of Florence (in South Carolina) for his or her appearance at a deposition in Philadelphia, Pennsylvania, and the court being of the view that it does not have the authority to enforce such a subpoena, the request for an order authorizing issuance of the subpoena is denied, without prejudice to the parties' right to pursue the deposition by a more conventional procedure. BY TI-IE COURT, Vincent J, lozzi, Esq. James D. Schultz, Esq. SWARTZ, CAMPBELL & DETWEILER 160 I Market Street - 34th Floor Philadelphia, P A 19103-2316 ( " " ',) " : ,! , '-1 .., , ~.. J , ) " " ,', I '.0"11 , .. ": ~ (" :.IJ In ...; Robert A. Hopstetter, Esq, 247 S. 8'h Street P,O, Box 25 Lebanon, PA 17402 c( ~ ~ ~. " It..... ....,.. . i iii :i .?}~ .!'.!' to. OJ ~ ... Ll '. () ~ <:" ,,0 oS'oS' ~' - "ca ~ UJ UJ ca - () 1;) J... u: ~~ .!',j' to. OJ (, ... () I- (" ,p "oS' oS' ,<' Cll ... .!:: ~ =.... It:l II ~.... C\l r.' rn Cll 0 - Q. Cll 0 ... 0.... t ... :I:"" C\l .9 en ~ ""~..c: 0 Cll ..., t-- t)Ul"J::: ~ c..iJl,!?p < ~:E~~p.._ ' ..., X .: <d'=00 .... ol.~ ~ 5 ... d VJ ,'" Cll"'t--O.c ~J!~~.3 ~~ ')<Jf. OJ ... ~, () (" .~, ," 0' '<~ ,~ .!' d' '~t. ~ ~ '.J " ~ (" ,p ;'~, <' .jf~ ,~ I. OJ ~ ~ v " ~ (" 0 "oS' ~ .!' ,<' ~ "" ..... ~ 1iJ ~ Q .jf~ '\\'. OJ ~ , " (" ;" "oS' ,- .!' ~"i :::::: ~ 1t :::: " ~ ~~ 1:: s:: ~~ c:;, <D , - 10:'" '" "5 . .....'" ';M S C" . a> rn~.... rzl~< ...; ....c.. ~ (fJ .. o t.~ -....c ' .. c. ;CUa:; c::E-g "....- ~O:c ,- <D " >........ ,~ '~~ '" ' I. " U ~ () ~ (" ~ "oS' 0- " .if~ .\'.\' <; ";, ... l.l . 0 ... <;, ,p .\'-r \~ .~ I . , -- ... - Wcu ~ en ~ - () 1;) '- u: ,~ OJ, ." "- to)' -' ... ~ . 0 ... " ,p "-r -r \~ .if~ J'..s' "- to) -' ~ l.l 0 ... " ,p "-r -r \~ e.....:cr;, .~ r.. 0 ::I", ..... C'~ Ol UlC'.)..... ~, ~< .- ~ p.. to< 00 . to< .... OS o QJ ._ .......!<:..c: . .. 0. '":l OS- .... "" CJ =",,'0 CUP"'4..! ~ O:.a ,~tO " >......... ~~ ,I' 0. " -' ~ 0 ('0 ~ " '1 Q' '~y " " ,~"" "5 t. :': -' .J " <' .' '1 .,.' "'-r , I... ~ ..... ... f;J ~ :::::: ~ ~ ~ ~ c,.:, ~~ ^:t- ... to) G .., 0 ... <;, V; ~ "'-r ,~ >.~ 'l-- .... :::: td Vj to '..... -"" ~'" ",; , ....."" 'S C"J ~ ~ '0'> ~t~ .~.t: 0.. ~ UJ .. c ~ .~ -:~-a ">..- ~ "" '" ='"""" Q,l.-4~ ~ 0 :c ..... to" >........ ;,~ 0\' e:;- ,f'l,_ .., 0 "- '. \i~, " .,.' , ~~ J' 0\'... " -' .., l.l ('0 ,. "" ." ,..- -r-r " ~ '. DAN CAREY T/A/D/B/A DGC TRANSPORT, Plaintiff #3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. FLYING J. INC., A UTAH CORPORATION, Defendant NO. 97-l083 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler on Wednesday, June 2l, 2000, in the above- captioned matter. Present on behalf of the Plaintiff was Robert A. Hopstetter, Esquire. Vincent J. Iozzi, Esquire, who is representing the Defendant, did not appear at the conference. A pretrial memorandum was received from Defendant, but no pretrial memorandum was received from Plaintiff. This is a negligence and breach of contract action arising out of allegedly deficient servicing of Plaintiff's peterbilt truck, resulting in transmission failure. Defenses include an absence of any wrongful conduct on the part of Defendant and improper maintenance of the truck by Plaintiff. This will be a jury trial in which each side will have four peremptory challenges, for a total of eight. The estimated duration of trial is one and a half days, Outstanding issues will include Defendant's motion in limine to preclude testimony of Plaintiff's expert, Peter Baldwin, on grounds of lack of qualification and lack of acceptable methodology. With respect to settlement negotiations, Plaintiff is demanding $5,000.00, and Defendant has not offered any amount. Plaintiff's counsel indicated at the pretrial conference that he will be filing a praecipe to discontinue the