Loading...
HomeMy WebLinkAbout02-6185ETHEL E. CASSEL and : IN THE COURT OF COMMON PLEAS RICHARD D. CASSEL, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS · vs. : NO. O .2_ _ (a / LINDA O. LUSK, : CIVIL ACTION - LAW DEFENDANT : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Date: / 2---/~ (9/O { Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 J /_.. ./~19 Brt~dge Street ' New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Plaintiff ETHEL E. CASSEL and : RICHARD D. CASSEL, : PLAINTIFFS : .' VS. : : LINDA O. LUSK, : DEFENDANT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O A_ CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Ethel E. Cassel is an adult individual residing at 605 South Market Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Plaintiff Richard D. Cassel is an adult individual residing at Apartment A, 27 East Main Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. Plaintiff Richard D. Cassel is the husband to Plaintiff Ethel E. Cassel and the owner of 1984 Chrysler New Yorker bearing Pennsylvania Registration Plate BFA-9861. 3. Defendant Linda Oram Lusk is an adult individual residing at 256 Brindle Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. COUNT I: ETHEL E. CASSEL V. LINDA ORAM LUSK 4. At all times relevant to this action Plaintiff was sitting in the driver's seat of a legally parked 1984 Chrysler New Yorker bearing Pennsylvania registration number BFA-9861. 5. At all times relevant to this action Defendant was operating a 1995 Honda Accord bearing Pennsylvania registration number RC-8475. 6. At all times relevant to this action on January 3, 2001 there were no adverse weather or road conditions at the intersection of South Market Street and East Maplewood Avenue, Cumberland County, Pennsylvania 17055. 7. On or about 8:15 AM on January 3, 2001 Plaintiffwas legally parked in her vehicle on the curbside of East Maplewood Avenue approximately sixty one feet east of the intersection of Maplewood Avenue and Market Street in Mechanicsburg, Cumberland County, Pennsylvania 17055. 8. On or about 8:15 AM on January 3, 2001 Defendant was travelling southbound on Market Street and attempted to make a left turn onto Maplewood Avenue when she left her lane of travel and drove into Plaintiffs parked par located sixty one feet from the intersection of Market Street and Maplewood Avenue. 9. Defendant's car rammed into the left rear driver's side of the 1984 Chrysler New Yorker pushing it 6-8 feet down the street and causing extensive damage to the vehicle. 10. Defendant failed to remain within her lane of travel at the time of the collision described in Paragraphs 1 - 9. 11. Due to excessive speed Defendant failed to come to a stop before colliding with the Plaintiffs car which was legally parked on Maplewood Avenue in Mechanicsburg, Cumberland County, Pennsylvania. 12. Due to her inattention to existing road conditions, Defendant failed to maintain her car under proper control so that it would not strike a legally parked car. 13. As a direct and proximate result of the negligence of Defendant, Plaintiff has suffered serious bodily injury, as set forth in full hereinafter. 14. The occurrence of the aforesaid accident and the injury resulting therefrom were caused directly and proximately by the negligence of Defendant and, more specifically, as set forth below: (a) In failing to keep proper lookout for other vehicles lawfully operating at the intersection of Market Street and Maplewood Avenue; (b) In failing to remain within her lane of travel on Maplewood Avenue; (c) In failing to operate said vehicle at a speed that would allow Defendant to stop her vehicle before driving into the rear of a legally parked car occupied by the Plaintiff; (d) In failing to operate her vehicle in such a manner as to allow her attention to be diverted from road conditions ahead of her, thereby causing the collision; (e) In failing to have her vehicle under proper and adequate control under the then existing circumstances; (f) In failing to maintain a proper lookout for other vehicles or changing road or weather conditions; (g) In failing to apply her brakes in sufficient time to prevent the collision; and (h) In failing to use due care and caution or reasonable judgment under the existing road conditions. 15. As a result of the negligence of Defendant, Plaintiff has sustained severe injuries including, but not limited to: (a) Bilateral pulmonary contusion as a result of the accident and interstitial edema; (b) Coughing and bringing up blood tinged sputum immediately following the accident as well as shortness of breath and mild hemoptysis; (c) Cut lip; (d) Severe bruise on the cheek; (e) Neck pain and low back especially in the left parastemal area; (f) Difficulty in sitting and sleeping comfortably; (g) Difficulty in daily tasks such as cleaning the house or engaging in her usual occupation of house keeping; 16. As a result of the negligence of Defendant, Plaintiff has suffered and probably will in the future continue to suffer long term pain and suffering to her great detriment and loss. 17. As a result of the negligence of Defendant, Plaintiff has been and probably will be in the future be hindered from attending to her usual daily activities to her great detriment and embarrassment. 18. As a result of the negligence of Defendant, Plaintiff has suffered a loss of life's pleasures and probably will continue to suffer the same in the future, to her great detriment and loss. 19. As a result of the negligence of Defendant, Plaintiff has undergone great physical pain, discomfort, mental anguish and she will continue to endure the same for an indefinite period of time in the future, causing her physical, emotional and financial detriment and loss. 20. As a result of the negligence of Defendant, Plaintiff has incurred expenses for medical treatment, physical therapy including ambulance transportation and will incur additional expenses in the future. 21. As a result of the negligence of Defendant, Plaintiff lost wages and a claim is made for these wages and lost wages to be incurred in the future. 22. Plaintiff believes and therefore avers that her injuries are permanent in nature. WHEREFORE, Plaintiff Ethel E. Cassel seeks damages from the Defendant in an amount in excess of Twenty Five Thousand and 00/100 ($25,000.00) Dollars. COUNT II: RICHARD D. CASSEL V. LINDA ORUM LUSK 23. Plaintiff incorporates by reference Paragraphs 1 through 22 as though fully set forth. 24. Plaintiff Richard D. Cassel is the owner of a 1984 Chrysler New Yorker severely damaged in the accident described in ¶1 through ¶22. 25. The cost to repair the 1984 Chrysler New Yorker was estimated in parts and labor to cost approximately Two Thousand and 00/100 ($2,000.00) Dollars. 26. The damage to the 1984 Chrysler New Yorker was located in the outer panel and left rear bumper area including the lamp assembly area. 27. The damage to the 1984 Chrysler New Yorker owned by the Plaintiff Richard D. Cassel was directly and proximately caused by the negligence of the Defendant as described below: (a) In failing to keep proper lookout for other vehicles lawfully operating at the intersection of Market Street and Maplewood Avenue; (b) In failing to remain within her lane of travel on Maplewood Avenue; (c) In failing to operate said vehicle at a speed that would allow Defendant to stop her vehicle before driving into the rear of a legally parked car occupied by the Plaintiff; (d) In failing to operate her vehicle in such a manner as to allow her attention to be diverted from road conditions ahead of her, thereby causing the collision; (e) In failing to have her vehicle under proper and adequate control under the then existing circumstances; (f) In failing to maintain a proper lookout for other vehicles or changing road or weather conditions; and (g) In failing to apply her brakes in sufficient time to prevent the collision; (h) In failing to use due care and caution or reasonable judgment under the existing road conditions. WHEREFORE, Plaintiff Richard D. Cassel seeks damages from the Defendant in an amount of Two Thousand and 00/100 ($2,000.00) Dollars. Respectfully submitted, BY: ~ New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Plaintiff VERIFICATION I hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, infomiation and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. .f- ..... Date: VERIFICATION I hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the pena/ties of ! 8 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. ETHEL E. CASSEL Date: SHERIFF'S RETURN - REGULAR CASE NO: 2002-06185 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSEL ETHEL E ET AL VS LUSK LINDA O GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LUSK LINDA O the DEFENDANT , at 1026:00 HOURS, on the 2nd day of January , 2003 at 256 BRINDLE ROAD MECHAi~ICSBURG, PA 17055 by handing to JERRY LUSK, HUSBAND a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.21 Affidavit .00 Surcharge 10.00 .00 34.21 Sworn and Subscribed to before me this /3'~ day of / ~/~ ~7~,~ A.D. J 'Pr~thonotatr~ - So Answers: R. Thomas Kline 01/07/2003 STEVEN HOWELL Deputy S~riff ETHEL E. CASSEL and RICHARD D. CASSEL, PLAINTIFFS VS. LINDA O. LUSK, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 06185 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO: Linda O. Lusk 256 Brindle Road Mechanicsburg, PA 17055 DATE OF NOTICE: March 17, 2003 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 AVISO IMPORTANTE TO: Linda O. Lusk 256 Brindle Road Mechanicsburg, PA 17055 FECHA DEL AVISO: March 17, 2003 USTED ESTA EN REBELDIA PORQUE HA FALLADO DE TOMAR LA ACCION REQUIRIDA EN ESTE CASO. A MENOS QUE USTED TOME ACCION DENTRO DE LOS PROXIMOS DIEZ (10) DIAS DE LA FECHA DE ESTE AVISO, SE PUEDE DICTAR UN FALLO EN CONTRA SUYA SIN LLEVARSE A CABO UNA VISTA Y USTED PUEDE PERDER SU PROPIEDAD Y OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTE DOCUMENTO IMMEDIATAMENTE A SU ABOGADO. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGAR UNO, VAYA O LLAME LA OFICINA ABAJO INDICADA PARA QUE LE INFORMEN DONDE PUEDE CONSEQUIR AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 By: .~ ~6 ~e9veB;idH~eW~}~squire New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Plaintiff Date: March 17, 2003 Certificate of Service I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all interested parties or counsel of record via postage prepaid, first class United States Mail addressed as follows: Linda O. Lusk 256 Brindle Road Mechanicsburg, PA 17055 Date: March 17, 2003 By: Ste~ Ne~ Bridge Street w Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 John A. Staffer, Esquire Attorney I. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 ETI-iEL E. CASSEL and Attorney for Defendant · IN THE COURT OF COMMON PLEAS RICHARD D. CASSEL, Plaintiffs LINDA O. LUSK, Defendant · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · NO. 02-6185 · JURY TRIAL DEMANDED TO: NOTICE TO PLEAD ETHEL E. CASSEL and RICHARD D. CASSEL, Plaintiffs c/o STEVEN HOWELL, ESQUIRE 619 Bridge Street New Cumberland, PA 17070 Attorney for Plaintiffs YOU ARE REQUIRED to plead to the within Answer With New Matter within 20 days of service hereof or a default judgment may be entered against you. DATE: GOLDBERG, KATZMAN & SHIPMAN, P.C. BY: ~;th~o2~y i.~Dl~r~ 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant John A. Staffer, Esquire Attorney I. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 ETl-t~;l, E. CASSEL and Attorney for Defendant · IN THE COURT OF COMMON PLEAS RICHARD D. CASSEL, Plaintiffs LINDA O. LUSK, Defendant · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · NO. 02=6185 · JURY TRIAL DEMANDED ANSWER OF DEFENDANT LINDA O. LUSK TO TO PLAINTIFFS' COMPLAINT INCLUDING NEW MATTER AND NOW, comes the Defendant, Linda O. Lusk, by her attorneys, Goldberg, Katzman and Shipman, P.C., who file the following Answer and New Matter in response to the Plaintiffs' Complaint: 1. Denied. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 2. Denied. At~er reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 3. Admitted. COUNT I. ETHEL E. CASSEL v. L1NDA ORAM LUSK Admitted on information and belief. 5. Admitted. 6. Denied as stated. At the time of the subject accident, there was a large volume of steam/smoke emanating from running vehicles in cold temperatures which obscured the Defendant's view of the roadway. 7. It is admitted that on January 3, 2001 at approximately 8:15 a.m. Ethel E. Cassel was occupying a parked vehicle near the intersection of East Maplewood Avenue and Market Street in Mechanicsburg, Cumberland County. 8. It is admitted that on January 3, 2001 at approximately 8:15 a.m. the Defendant was traveling southbound on Market Street and attempted to make a let~ turn onto Maplewood Avenue when she collided with the Plaintiff's parked car. 9. It is admitted that a collision occurred between the Defendant's vehicle and the Plaintiffs vehicle. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the remaining averments in this paragraph and, therefor, denies the same and demands strict proof at time of trial if deemed material. 10. vehicle. It is admitted that the Defendant's vehicle collided with the Plaintiffs parked 11. It is denied that due to excessive speed Defendant failed to come to a stop before colliding with the Plaintiffs car. It is admitted that the Plaintiffs car was parked on Maplewood Avenue. 12. It is denied that due to her inattention to existing road conditions, Defendant failed to maintain her car under proper control so that it would not strike a legally parked car. 13. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Defendant is without information sufficient to form a belief as to the truth or falsity of the averment that the Plaintiff suffered serious bodily injury as a result of this accident and, therefore, denies the same and demands strict proof at time of trial if deemed material. 14. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the aforesaid accident and any injuries resulting therefrom were caused directly and proximately by any negligence of the Defendant and specifically denied that the Defendant was negligent: a. in failing to keep proper lookout for other vehicles lawfully operating at the intersection of Market Street and Maplewood Avenue; b. in failing to remain within her lane of travel on Maplewood Avenue; c. in failing to operate said vehicle at a speed that would allow Defendant to stop her vehicle before driving into the rear of a legally parked car occupied by the Plainti~ d. in failing to operate her vehicle in such a manner as to allow her attention to be diverted from road conditions ahead of her thereby causing the collision; e. in failing to have her vehicle under proper and adequate control under the then existing circumstances; f. in failing to maintain a proper lookout for other vehicles or changing road or weather conditions; g. in failing to apply her brakes in sufficient time to prevent the collision; and ho in failing to use due care and caution or reasonable judgment under the existing road conditions. 15. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of the negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averment that the Plaintiff sustained severe injuries including those specified in sub-paragraphs (a) through (g). Therefore, Defendant denies the averments concerning the nature and extent of the alleged injuries and therefore, demands strict proof thereof at time of trial if deemed material. 16. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiff's alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. 17. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiff's alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. 18. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiff's alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. 19. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiffs alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. 20. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiffs alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. 21. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiffs alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. 22. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the 7 Defendant was negligent and denied that the Plaintiff suffered any injuries or damages as a result of any negligence of the Defendant. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the nature and extent of the Plaintiffs alleged injuries, losses and/or damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. WHEREFORE, Defendant Linda Oram Lusk respectfully requests that Count I of the Plaintiff's Complaint be dismissed and that judgment be entered in favor of the Defendant and against the Plaintiff. COUNT H RICltARD D. CASSEL v. LINDA ORAM LUSK 23. Defendant incorporates by reference her answers to the averments in paragraphs 1 through 22 of the Plaintiffs' Complaint as if set forth at length. 24. Denied. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 8 25. Denied. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 26. Denied. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 27. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Plaintiff's vehicle was damages as a result of any negligence on the part of the Defendant. By way of further answer, it is denied that the Defendant was negligent: a. in falling to keep a proper lookout for other vehicles lawfully operating at the intersection of Market Street and Maplewood Avenue; b. in failing to remain within her lane of travel on Maplewood Avenue; c. in failing to operate said vehicle at a speed that would allow Defendant to stop her vehicle before driving into the rear of a legally parked car occupied by the Plaintiff} 9 do go ho in failing to operate her vehicle in such a manner as to allow her attention to be diverted from road conditions ahead of her thereby causing the collision; in failing to have her vehicle under proper and adequate control under the then-existing circumstances; in falling to maintain a proper lookout for other vehicles or changing road or weather conditions; in failing to apply her brakes in sufficient time to prevent the collision; and in failing to use due care and caution or reasonable judgmem under the existing road conditions. WHEREFORE, Defendant Linda Oram Lusk respectfully requests that Count II of the Plaintiffs Complaint be dismissed and that judgment be entered in favor of the Defendant and against the Plaintiff. 10 NEW MATTER By way of additional answer and reply, Defendant Linda O. Lusk raises the following New Matters: 28. limitations. Some or all of the Plaintiffs' claims are barred by the applicable statute of 29. Some or all of the Plaintiffs' claims are barred in whole or in part and/or are limited by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. §1701, et seq. and especially by §§1705 and 1722 of that law. 30. In the event that some or all of the Plaintiffs' damages were paid for or are payable by insurance, then claims for such damages by barred by § 1722 of the Motor Vehicle Financial Responsibility Law and by the defense of payment. 31. At the time of the January 3, 2001 accident, Plaintiff Ethel E. Cassel was a limited tort elector and/or was otherwise bound by the limited tort election/option. 32. Plaintiff Ethel E. Cassel did not suffer a "serious injury" in the January 3, 2001 accident as that phrase is defined by the Pennsylvania Motor Vehicle Financial Responsibility Law. 11 WHEREFORE, Linda O. Lusk respectfully requests that the Plaintiff's' Complaint be dismissed and that judgment be entered in favor of the Defendant and against the Plaintiff's. DATE: 93271.1 By: Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. Attorney I. D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant 12 VERIFICATION I, LINDA O. LUSK, hereby acknowledge that I am the Defendant in this action; that I have read the foregoing Answer With New Matter; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities. DATE: CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a tree and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the ~ [ day of fi/~/~ ir F' ]4 ,2003, addressed to the following: Steven Howell, Esquire 619 Bridge Street New Cumberland, PA 17070 By Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. John A. Stalle~squk~~-' Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant John A. Statler, Esquire Attorney I. D. No. 43512 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant ETHEL E. CASSEL and RICHARD D. CASSEL, Plaintiffs LINDA O. LUSK, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-6185 : : JUKY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documems and things pursuant to Rule 4009.22, Defendant hereby certifies that: 1) A Notice of Intent to serve the subpoenas, with a copy of the subpoenas attached thereto, was mailed or delivered to each party at least 20 days prior to the date on which the subpoenas were sought to be served; 2) A copy of the Notice of Intent, including the proposed subpoenas, is attached to this certificate; 3) No objection to the subpoenas has been received; and 4) DATE: 93843.1 The subpoenas to be served are identical to the subpoenas attached to the Notice of Intent. ~ By: John A. Sta~.~q~ire Attorney I.D. No. ~3qt12 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 John A. Staffer, Esquire Attorney I. D. No. 43812 GOLDBERG, KATZMAIq & SIIIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant ETHEL E. CASSEL and RICHARD D. CASSEL, Plaintiffs LINDA O. LUSK, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02-6185 : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: ETHEL E. CASSEL and RICHARD D. CASSEL, Plaintiffs STEVEN HOWELL, ESQUIRE 619 Bridge street New Cumberland, PA 17070 Attorney for Plaintiffs PLEASE TAKE NOTICE that Defendant Linda O. Lusk intends to serve subpoenas identical to the ones attached to this notice. You have 20 days from the date listed below in which to file on record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. GOLDBERG, KATZMAN & SHIPMAN, P.C. Date: C /3/ 3 By: Attorney for Defendant . CCm3 'H OF ODOlqT'Y OF ~ ~ E. ~S~L and RI~lfl) D. ~S~L, Plaintiffs Ye LII~)A O. LUSK, Defendant File No. 02-6185 SUBPOENA TO PROOUCE DOCUMENTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 TO: ~P. LISII HOSPITAL (Name of Person o~ Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to 0~uce the follc~ir~ doo~ents or things: Copies of all mdical records, medical reports, office notes, physical therapy records, correspondence, x-ray reports, HRI reports, hospital records, test reports and any other recor~_~aining to any evaluation, care or treatment ever rendered to KTHF. L I. ~61i1~; UU~: ~/ii/3~ at .~OI~BERG, ~A?ZNAN 6 ~t~PHAH, P.C.~ 320 Harket Street, P.O. Box 1268, Harrisburg, PA (&ck~ess) 17108-1268 You may deliver or mail legible cooies of the docunents or produce things requested by this subpoena, together with the certificate of cx~npliance, to the party n~in9 this request at the address listed above. You have the right to seek in adva~.ce the reasonable cost of preparing the oopies or producing the things sought. If you fai I to produce the docunents or things required by this subpoena within twenty (20) days after its service, the party serving this subpo~',a may seek a court order omlSel ling you to co~,~ly with it. THIS SUBPOENA WAS ISSUED AT THE REQLEST OF THE FOLLONING PERSON: NAME: 3ohnA. Statler, Esquire Goldber§, Katzman& Shipman, P.O. Box 1268 l~art-is~s~-Pl 1710~ 1258 IEL~E: (717) 234-~161 SUPREI~COURT ID # 13812 ATTORNEY FOR: Defendant BY THE COURT: OATE:__~3ril 4. 2003 Seal of the Court Prothonota~y/Clerl, Civil Division Deputy (Elf. 7/97) ~ OF ~ ETHEL E. CASSEL and RICNARD D. CASSEL, Plaintiffs LINDA O. LUSK, Defendant File No. 02-6185 SUBPOENA TO PROOUCE DOCUMENTS OR TH I NGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: m~ALT~SOUTBREBABILITATION (Name of Person or Entity) Within twenty (20) days after service oft his subpoena, you are orderedbythecourt to produce the following documents or things: Copies of ail ~edical records, medical reports, office notes, physical therapy records, correspondence, x-ray reports, ~flL[ reports, hospital records, test reports and any other recor~_~aining to any evaluation, care or treatment ever rendered to ~T-K!, E. ~AUU~h; UUU: ~/ZZ/JJ at ~OLDR~R~. ~ATZNAN ~ ~HIPHAN, P.C.~ 320 llarket Street, P.O. Box 1268, Harrisburg, PA (~ddress) 17108-1268 You may deliver or mail legible cooies of the documents or produce things requested by this subpoena, together with the certificate of c~rpliance, to the party making this request at the adclre~s listed above. You have the right to seek in advance the reasonable cost oF preparing the c~pies or producing the things sought. If you fail to produce the docunents or things required by this subpoena within twenty (20) days after its service, the party serving this subp~',a may seek a court order oceaSelling you to cc~ply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAP~: John A. Statler, Esquire goldberg, Eatzamn & Shlpatan, e.C. A[X)RESS:32° ~ $~roor P.O. Box 1268 Ha~--PA 1710g 125~° TELEPH~: (717) 23~-6161 SUPREI~~ ID # 63812 ATTORNEY FOR: Defen48nt BY THE CXX~T: OATE:__A~ril 4. 2003 Seal of the Oourt Prothono~y/Cierk, Civil Division Deputy (Elf. 7/97) ETR~. E. CASSEL and RICHARD D. CASSEL, Plaintiffs Ve LINDA Oo LUSK, Defendant File No. 02-6185 SUBPOENA TO PROOUCE D~NTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.2? TO: BELVEDERE I4EDICAL CEW~R (Name of Person or- Entity) Within twenty (20) days after service oft his subpoerm, you are ordered by thecouvt to p~duce the following documents or things: Copies of all medical records, medical reports, office notes, physical therapy records, correspondence, x-ray reports, HRI reports, hospital records, test reports and any other records pertaining to any evaluation, care or .treatment ever rendered to ~£~d, K. ca~u~.~.; uu~: 8/22/33 a~ COLDBERG? KA~& SHIPHAH, P.C.~ 320 liarket Street, P.O. Box 1268, Harrisburg, PA (tdd~ess) 17108-1268 You may deliver or mail legible cooies of the doctrnents o~ produce things requested by this subpoena, together with the certificate of conpliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the docunents or things required by this sul0poena within twenty (20) days after its service, the party serving this sub~',a may seek a court order cc~lSellir;g you to comply with it. THIS SUBPOENA WAS ISSUED AT THE RECIUESTOE THE FOLLOWING PERSON: NN~: John A. Statler, Esquire Coldberg, Katzman & Sh.tpmau, ADORESS:320'~e P.O. Box 1268 Haeelst~.-l~-lT10~-!25~ TELEPHONE: (717) 234-4161 SUPREI~~ ID # 63812 ATTORNEY FOR: Defendant BY THE COURT: OiTE:__hpril 4. 2003 Seal of the Court Prothonotary/Clerk, Civil Division Oeputy (Elf. CERTI~CATE OF SERVICE_ I HEREBY CERTIFY that I served a tree and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the ~-~-~ ¥ ~/ day of ., 2003, addressed to the following: Steven Howell, Esquire 619 Bridge Street New Cumberland, PA 17070 By Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant ETHEL E. CASSEL and : RICHARD D. CASSEL, : PLAINTIFFS : : VS. : : LINDA O. LUSK, : DEFENDANT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 6185 CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER 28. DENIED. ¶28 states a conclusion of law to which no response is required. Ifa response were required it is expressly DENIED that the statute of limitations is applicable since the accident occurred January 3, 2001 and the Defendant was served with process on January 2, 2003 with the Complaint having been filed on December 30, 2002. Strict proof is demanded at time of trial. 29. DENIED. ¶29 states a conclusion of law to which no response is required. If a response were require~l is expressly DENIED that the Pennsylvania Motor Vehicle Financial Responsibility Law bars Plaintiffs' claims. Strict proof is demanded at time of trial. 30. DENIED. ¶30 states a conclusion of law to which no response is required. If a response were required is expressly DENIED that the Pennsylvania Motor Vehicle Financial Responsibility Law and the defense of payment bars Plaintiffs' claims. Strict proof is demanded at time of trial. 31. DENIED. ¶31 states a conclusion of law to which no response is required. If a response were required is expressly DENIED that Plaintiff Ethel E. Cassel was a limited tort elector and/or otherwise bound by the limited tort election/option at the time of the accident on January 3, 2001. Strict proof is demanded at time of trial. 32. DENIED. ¶32 states a conclusion of law to which no response is required. If a response were required is expressly DENIED that Plaintiff Ethel E. Cassel was not seriously injured as defined by the Pennsylvania Motor Vehicle Financial Responsibility Law. To the contrary, as set forth in ¶1 through ¶22 of the Complaint, Plaintiff Ethel E. Cassel did suffer serious injury as defined under Pennsylvania law. Strict proof is demanded at time of trial. WItEREFORE, Plaintiffs respectfully request this Honorable Court to dismiss Defendant's New Matter and enter judgment in their favor and against the Defendant. Respectfully submitted, By: ~ St ,,tier9 Br'~ge Street_ ..... /~ New Cumberland, PA 17070 ~" (717) 770-1277 Supreme Court I.D. 62063 Attorney for Plaintiff Certificate of Service I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served upon all interested parties or counsel of record via postage prepaid, first class United States Mail addressed as follows: John A. Statler, Esquire Goldberg, Katzman & Shipman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 By: S~ /,619 Bridge Street ~ New Cumberland, PA 17070 · ~ (717) 770-1277 Supreme Court I.D. 62063 VERIFICATION I hereby verify that the statements made in the foregoing document are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to author' Date:` RI~~ff~~ VERIFICATION I hereby verify that the statements made in the foregoing document are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. BY: ETHEL E. CASSEL Date: ETHEL E. CASSEL and RICHARD D. CASSEL, PLAINTIFFS VS. LINDA O. LUSK, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-6185 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Upon Praecipe by Plaintiffs' Counsel please mark the above captioned matter as discontinued and settled Date: January 12, 2004 Respectfully submitted~ J 619 Bridge Street J New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Plaintiff Certificate of Service I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all interested parties or counsel of record via postage prepaid, first class United States Mail addressed as follows: John A. Statler, Esquire Goldberg, Katzxnan & Shipman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 Date: January 12, 2004 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the / ~ ~ day of ,2004, addressed to the following: Steven Howell, Esquire 619 Bridge Street New Cumberland, PA 17070 By Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. John A. Statler; ~ Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant