Loading...
HomeMy WebLinkAbout97-04408 , '1 .~ - ~ 2 v -, ~ ~ , . . ... ~ ~ ~ ~ ~ I I ! ,. ./'/.;1 / / I ~ ~ ..... . .. .~ .. <:.J SHERIFF'S RETURN - REGULAR AI1ENDED CASE NOI 1997-04408 P C0l1110NWEALTH OF PENNSYLVANIA I COUNTY OF CUI1BERLAND KOWALSKI BARBARA J ET AL VS. JENKINS I1AURA I1ICHAEL BARRICK . Sheriff or D.puty Sheriff of who being duly sworn according SUI1110NS w.. .erved CUI1BERLAND County, P.nnsylvani., to 1.w, says, the within WRIT OF upon JENKINS I1AURA defend.nt,.t 1014~ HOURS, on the lI1h d.y of Nove.ber 1997 at 3600 GETTYSBURG ROAD CAI1P HILL. PA 17011 County, P.nnsylv.ni., by h.nding to I1AURA JENKINS . true .nd .tte.ted copy of the WRIT OF SUI1110NS .nd .t the .... tiMe directing ~ .ttention to the content. thereof. the . .CUI1BERLAND . . Sheriff's Costs I Docketing S.rvice Affid.vit Surch.rge So .nswers~.....,,, ~ r~~:r.6 K. Tho.as Kline, r 18.00 8.68 .00 2.00 .~8.&8 TII10THY SHOLLENBERGE 11/12/1997 by Sworn .nd subscrib.d to b.fore .e this I 7 "'- d.y of 7:..'1."'.....:.- 19 ',7 A.D. , /' ~ ----J......# (-<< Lt. "}J.r.,(.1...._ (i,J~. .;' prot.honorary-T N ~ . ,,'") .- 'n :i~ , - " ~ ~ ~ '-, r' -. I.'. .: U t".' .) 1.0. '.) ~ III . .... '" III '" '" III .. .. .0 .. > .. ........ :E "'~ '" '" "'.... 0'" 6~ "'...... ..=.... .... .. 0 :.'" ... u.;. ........c c .. .. .......... i ...... ...1] .. .. ., 05 3 .......... I ~~'" .. .. 0 '" .. . ... ..u > .! "'" oQ 001001 o C ........ .. u.. .. .. ..;ra: .!i .... u.... ... .. .. <.. Ill.... C .cGl f""tf-t .. .. .. ".0 ., ~goEt' .. ., .os: .. .. U J...tl',,JZ :.1 ...... .. u., =:E " )! , . :;:..".-.e..," """".. o........;....;:t\... t'l'n: .' 4,..'~'" ',- t('\ ""'l ~ .,s...... ....... " ~ ~ ~"" - c) .5;' ~ - -i t" o - ... o .. .... .. :. .. .. o c ....S .. " ~'" U .. " .. '" - . , j? '- \ ~ ,~~ '11 ;:{Qj -t- d J C!. ~ 1; 3~r% ..,. .~ t ... i: cA I ~ e! 3 I Bj Iii ~11~1 " ... ". , , 0 3: ::r3:C11 . , , . . , . ... III It ... III . I . < C '1 n '1 . '", , . ... '1 ::r0" , , , , I.... , . ... III ::rllll>> , , I C It '1 I I I , I , 1-- , , > <..0 CD ...l>> . , . n en It 0" , ,-- , . rT ::l l>>"l<..o , 10 , . g I , . ... ,.. ::l' . , ICD >' . 0 ... 0. , ~, . , , 0: I ::l ::l ~~ I 10 ~Ju ~j , CD - 00 I ,'" j! I I 0 .: .: . 1< e I I l>>l>> , "... !::i !!e , t"' ...... I I... , . , . l>> ... lDCD , lo-l , . .: a ,..,.. I , ; . ~ . I , , ...... I I ~ , I , . :10 l>> . \II J' . , . ::l I - , , 0. I :0 , , I , . I , . . , I , . I \...J:-1C 'd .. "'Ill. ,. - r- r-,.., t ~ ......... ~-~ "'~J: ~ ,- " { ~ ~ ~ - ~. i "" ~:~ ~:2t.., l \...J '-4 ,. ^ :. - In the Court of Common Pleas Cumberland County, Pennsylvania No. 97-4408 Civil Civil Action - Law Jury Trial Demanded f" "il"CrriCE '''' .;....... ..,..,\....~,~..J C:: ~.~ r~' \ I.. l t"iH , '. ,. r;1 ~r? n Pit t:!1€l 0- nU~D .,. 1', ,..... , ':. F"" Barbara J. Kowalaki and Michael F. Kowalaki. Her Husband, Plaintiffs . ,.o'I'V C" ,; , \ '.; I,,, I \,,1,.,1.,,-,_.,.1..,,' .- ... ;'-':\".-.',,' \ .~."-\ I ...1"\. ....I "~~' ,t., 97 S/:"o " , , "'c CU"" ,.,':''.':,:_, ' . . 1Jt-. "<' , Ci' j\If.~ '..J f, ,,~~ it! v. ura Jenkins, Defendant Praecipe to Reissue Writ of SUlIIIIlOns lAW CHICI5 (I' mtO'IHY A. SHOUENBERGER 111I UNllUII'OInlIlOOll '0__ HAUISllU\lO. PA m~' ';;v ,:ViI ~."J ~ lii:iiJ , n ~ ::rZllI J , .... . ....c. . , < c: "n" ir . .... " ::ra I I .... C. ::rOc. , c:." I )0 ~ . ....c. I I n rn . a I~ I ~ :l O"l~ . ~ I ~ I ICD , .... :Ie' :l' . >, 0 ... Qo . if: :l :l - l'Il'I In C~~ ~j I I . 00 I~ j! cc , OC. , ! ~J~ :t'" ....... I ~ I 10 S' .. I : c :lC':Ie' I ........ I ~ I I . I . , I 0 I I I , :l . - I ~ ,~ I Qo I i I I , I . , I . , . I I \'INVr,ll ~ '!tlJcI ~.,. ,- '.'J \,;1'\,,', . ;.)1 Jd f: ~ t'J.J.-. is, !'()~~ ~.~. J ~- .':3 9 ~ )0, ~t, rP r~ r- 16. III '5 S ~I" L&. W! SS L El 6S ,.~. . _..aJ Hib:;';. ..',l. JIj J~I.jJO I. - , . ";'0 i' \....., . '. ... ~.,. I ,'r... ,'. . ..-........., ,- , , I In the Court of Common Pleas Cumberland County. Pennsylvania No. 97-4408 Civil Civil Action - Law Jury Trial Demanded Barbara J. Kowalski and Michael F. Kowalski. Her Husband. Plaintiffs . , v. Kaura Jenkins. Defendant Praecipe to Reissue Writ of SUllllllOns lAW 0ft'QS (I' 11M011fY A. SHOLlENBERGER 11/0 L_1lQOI) PO.n_ HAnlSBUllO. PA 171~' CERTIFICATE ,. PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF, COURT OF COMMON PLEAS BARBARA J KOWALSKI (HOOVER) TERM, 0000 -VS- CASE NO, 97-4408 CIVIL JENKINS As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 KCS on behalf of MICHAEL BADOWSKI, ESQUIRE defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to the certificate. l' (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE, 6/11/98 '7l~k<11~k- MICHAEL lAOOWSKI, ESQUIRE Attorney for defendant OE11.042486 5CS903-LOl. EXI)LANA'I10N OF REQUlREU RECORDS TO: CUSTODIAN OF RECORDS FOR: COMMUNITY GEN, OSTEO. HOSPITAL 4300 LONDONBERRY ROAD PO BOX )1100 HARRISBURG, PA 17109 RE: 569113 BARBARA J KOWALSKI (HOOVER) Any and all records. correspondence. files and memorandums, handwritten notes, relating to any exammation, cunsultation care or treatment. Dates Requested: up to and including the present. Subject: BARBARA J KOWALSKI (HOOVER) 5971 MEADE COURT, HARRISBURG, PA 1711% Social Security #: 181.54.6136 Date or Birth: 04.07-67 SU10.139928 56903 -LOJ.. CQMJNWE7..I:m OF PmNSYLV1\NIJ\ axJllI"i OF ~ BARBARA J. KOWALSKI (HOOVER) VS File No. Q7_t.t.OR CIVIL JF.NKINS Sl8POENA TO PROOU:E OOCI.JoENTS OR lli I tQS FOR 0 I SOOVERY ~SUANT TO Rl.LE 4009. 22 TO: rll~TODIAN OF RECORDS FOR: DAVID SlIITH D.C. (NlITll! of Person or Ent ity) within twenty (20) days after service of this s.ibpoena, you are ordered by the oour-t to prcxix:e the following doc:unents or things: SEE ATTACHED lit lICS GROUP I KC. 1601 MARKET STRFF.T SUITf. 800 PHILADF.LPHIA PA 19103 (Adcress) feu may de I iver or mil. iI legible copies of the doc:unents or proc1lce things r~ested by this subpoena. together with the certificate of OCI1l)liance, to the party making this reQUest at the adcrf'.ss listed above. You have the ri~t to seek in advatlCll the reasonable cost of preparing the copies or prodJcing the things sought. If yeu !ail to ;roduc:e the doc:unents or things re<:JJired by this S\lbpoent within twenty (20) days after its service, the party serving this s\bpoe!oa /I'llY seek a court order carpe II ;r;9 you to carply with it. rn I S SU3POENA WAS I SSLeO AT llE REC:U:ST a: 1lE FOlLQI/ I p<<) PERsa.: NAME: ~!CHAF.l RAnoWSKI. f.SQUIRF AOORESS:-1lll.~IKF STRF.f.T. P.O. ROX 932 -1UlRR1~RLRG. PA 17:08 TELEPHONE: (21~) 246-0900 ~ cn.RT 10 II ATTORNEY Fa:!: l'IFFFNTlAI'T OATE:__-=lJt.J~_ II. (lit- Sea I of O:lur't , 8Y ~ ~T: (f Utb.A/ Prothonotry (Eft, 1/91) CERTIFICATE PREREqUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARBARA J KOWALSKI (HOOVER) TERM, 0000 -VS- CASE NO: 97-4408 CIVIL JENKINS As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHAEL BADOWSKI. ESQUIRE defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent. including the proposed subpoena. is attached to the certificate, (3) No objection to the subpoena has been received. and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 6/11/91 MICHAEL BADOWSKI. ESQUIRE Attorney for defendant DEll-042488 56 9 03 - LO 3 >>> LOCATION LIST <<< PAGE, 1 P~CORDS REQUESTED MEOICAL MEDICAL MEDICAL MEDICAL H!DICAL 1'':::;ICAL H!JICAL If;SURANCE LOCATION NAME COMMUNITY GEN. OSTEO. HOSPITAL DAVID SMITH. D,C. EMILY W. HATLIN. D,O. PHYSICIAN OF REHAB. HEALTH SOUTH CO~JNITY FAMILY MEDICINE CT ROBERT R. KANEDA, D,O. GENERAL ACCIDENT INSURANCE CO, DE02-065088 56903 -001 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: COMMUNITY FAMILY MEDICINE CT 895 SOUTH ARLINGTON AVE HARRISBURG, PA 17109 RE: 56903 BARBARA J KOWALSKI (HOOVER) Any and all records. correspondence. files and memorandums, handwritten notes, billing and payment records. relating to any examination, consultation, care or treatment. DattS RtqutStfll: up to and including the pment. Subject: BARBARA J KOWALSKI (IIOOVER) 5971 MEADE COURT, HARRISBURG, PA 17112 Social Security #: 181.54-6136 Date of Birth: 0.4-07-67 SU10-139938 56903-L06 (j. ;.,~ n /" (tl .\ ~; , - ..... ... . '0 ,f"" (",t., (J ~{) n ., :~") - ,- .\ T"'.) .. '::. :.3 ... ~1 ~ ...J--. ~- -... SHOLLENBERGER & JANUZZI, LLP 1820 Linglestown Road P,O. Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234.3700 Fax Number: (717) 234-8212 Altome s for Plaintiff BARBARA J, KOWALSKI, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4408 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMP~ltfi MAURA JENKINS, Defendant AND NOW comes the Plaintiff, BARBARA J, KOWALSKI, by and through her attomeys, SHOLLENBERGER & JANUZZI, LLP, and does respectfully represent the following: 1. The Plaintiff, BARBARA J, KOWALSKI. is an adult individual who currently resides at 5971 Meade Court, Harrisburg, Dauphin County, Pennsylvania. 2. The Defendant, MAURA JENKINS, is an adult individual whose last known address is 24 West Locust Street. Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. The facts and circumstances hereinafter set forth took place on September 12, 1995 at or about 5:30 p.m. on Market Street, Camp Hill, Cumberland County, Pennsylvania. 4. At the aforesaid time and place, the Plaintiff. BARBARA J. KOWALSKI, was the owner and operator of a 1992 Goo Stonn, 5. At the aforesaid time and place. the Defendant. MAURA JENKINS. was the owner and operator of a 1992 Honda Accord, :OV."lUiIUIlJIII' .lW.-'llJ UP lUtN",il.,rl__"S").\I~."(I tli(_)\lJI~~.t~.; AA Plc"~ .7n.!~j:"I!.t,,\ ~1".B.~1.' COUNT I BARBARA J, KOWALSKI v. MAURA JENKINS 9, Paragraphs 1 through 8 of Plaintiffs Complaint are incorporated herein by reference and made a part hereof as if set forth in full, 10. The aforesaid collision was a direct and proximate result of the negligence of Defendant, MAURA JENKINS. in operating her vehicle in a careless, reckless and negligent manner as follows: (a) In operating her vehicle at an excessive rate of speed under the circumstances; (b) In failing to have her vehicle under proper and adequate control; (c) In failing to apply her brakes in time to avoid a collision; (d) In failing to observe Plaintiffs vehicle stopped on Market Street with the left tum signal on; (e) In permitting or allowing her vehicle to strike and collide with the rear of the vehicle operated by the Plaintiff, in violation of 75 Pa,C,S,A, 93361; and, (f) In otherwise operating said vehicle in a careless, reckless, and negligent manner and in a manner violating the Motor Vehicle Code of the Commonwealth of Pennsylvania. 11. As a direct and proximate result of the aforesaid injuries, Plaintiff, BARBARA J, KOWALSKI, has undergone and in the future will undergo great pain and suffering for which damages are claimed, 12, As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has suffered and may continue to suffer a loss of earnings for which damages are claimed. 13. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, had and/or may in the future incur expenses for medical treatment and rehabilitation for which damages are claimed, 3 -:o.e...u.'..'U.l..iC..JA"....:-U\ UP l~t~>l.ESt1:)\I,.,..Rll>'u.pn I'H\t.iS....WIHlSHL1f(. P4. lil''''');"!' ~l.~.i".r:'l-'I.f1\.'" :'1'7.1...~tt 14, As a further result of the aforesaid injuries, Plaintiff, BARBARA J, KOWALSKI, has and/or may in the future incur a loss of earning capacity for which damages are claimed. 15. As a further result of the aforesaid injuries, Plaintiff, BARBARA J, KOWALSKI, has sustained scarring and disfigurement for which damages are claimed. 16, As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed, 17. As a further result of the aforesaid injuries, Plaintiff, BARBARA J, KOWALSKI. has incurred or may hereinafter incur financial expenses and loss which exceed sums recoverable under the limitations and exclusions of the Pennsylvania Motor Vehicle Financial Responsibility Law for which damages are claimed. 18, As a further result of this collision, Plaintiff, BARBARA J, KOWALSKI. has and may in the future incur reasonable and necessary medical and rehabilitative costs and expenses in excess in the amounts paid or payable pursuant to Subchapter B of the Pennsylvania Motor Vehicle Financial Responsibility Law. Workers' Compensation or any program. group contract. or other arrangement for payment of benefits as defined in 75 Pa, C,S,A, Section 1719, 19, Plaintiff is covered by the full tort option under her motor vehicle insurance policy with General Accident Insurance Company, A copy of the declaration page is attached hereto as Exhibit "A." WHEREFORE, Plaintiff, BARBARA J, KOWALSKI. demands judgment against the Defendant, MAURA JENKINS, for compensatory damages in an amount in excess of the amount requiring compulsory arbitration, Respectfully submitted, SHOLLENB E JANUZZI, LLP By: Dated: January 29,1999 4 Sl41..iL~.A\"fI' J~~.~,) liP l!\,.~'l u~-.u~~\ 1\\1'10 "'.lo\H. PI' lll))r\ ",'''.l''. tV.lm!"!k 1t(, "" l~l'" ;''''4''' 7\:' 't\ol,\~J'.tA' :!.' .'\.4 li..'l.: 6. Denied as stated. By way of accurate answer, at the time of the subject motor vehicle accident, Ms. Jenkins was operating her car along Market Street in slowly moving stop-and- go traffic. Her three year old son was in the back seat of the vehicle and Ms. Jenkins heard him attempting to get out of his car seat. When her son did this, Ms. Jenkins looked in her rear- view mirror and instructed her son to buckle himself back into his car seat. Following this momentary exchange, Ms. Jenkins I attention returned to the roadway in front of her when she observed that the vehicle operated by Plaintiff had come to a stop directly in front of her. Ms. Jenkins immediately applied her brakes, but could not avoid bumping into the rear of the Plaintiff's vehicle. 7. Denied as stated. By way of further answer, Ms. Jenkins incorporates herein by reference her answer to paragraph 6 above as if the same was set forth in its entirety. 8. (a)-(k) The averments of this paragraph and its subparagraphs of the Plaintiff's Complaint recite assertions of damages, after reasonable investigation of which, Ms. Jenkins is without knowledge or information sufficient to form a belief as to their truth and, therefore, said averments are denied. comrr I ....... ". w,...ar.IIKI VS.. 1D.tJ1lA. .1'mmINS , 2 . 9. Ms. Jenkins incorporates herein by reference her answers to paragraphs 1 through 8 of this answer as if the same were set forth in their entirety. 10. (a)-(f) Denied. The averments of this paragraph and subparagraphs of Plaintiff's Complaint recite legal conclusions to which no response is required. By way of further answer, Ms. Jenkins incorporates herein by reference her answer to paragraph 6 above as if the same was set forth in its entirety. 11-19. The averments of these paragraphs of Plaintiff's Complaint recite medial and legal conclusions to which no response is required. WHEREFORE, Defendant, Maura Jenkins, demands judgment in her favor and against Plaintiff. HEll IlA.TTRJl 20. At the time of the subject motor vehicle accident, Ms. Jenkins was operating her car along Market Street in slowly moving stop-and-go traffic. lIer three year old son was in the back seat of the vehicle and Ms. Jenkins heard him attempting to get out of his car seat. When her son did this, Ms. Jenkins looked in her rear-view mirror and instructed her son to buckle himself back into his car seat. Following this momentary exchange, Ms. Jenkins I attention returned to the roadway in front of her when she observed that the vehicle operated by Plaintiff - J - f? '0 ('} \.0 ., '" -., -r: rf ...;., g... rJ !J:' - ,! C, -.: -< r'-' .' 'f':. 9~' \~, - , ." ~." .. ,qf - .:- :;! '9 Co.) -. '.,,-;..... >- \l1 t; Cc; c ~~ ~ ~~, ..;7 =?<: ~~. ...)::".. - ',.l~'~ F' ' - .. Co (~) ,,;-- '. ~_\::.J l' c~ ~;. ;- ~u r- ~\~'} .~ _2 G"',; ffi 'Ii:?: ~ ..' '..t UJ 1'-' ~ 2~a. .- II en ::> 0 C'\ U ~ :l Id ';I;~ ffi ~ 0 ~ ll~ ~ ~ ~ ~ . '. that an answer is required, same is denied pursuant to Pa, R.C.P, 1029(e). 23. Denied as stated. By way of further answer, there is no correlation between the amount of damage to the involved vehicles and/or the amount of repairs required to the Plaintiffs vehicle and the extent of personal bodily harm caused by the collision. 24. Paragraph 24 is in the nature of a conclusion on an ultimate issue and to that extent requires no answer, To the extent an answer is required. same is denied pursuant to Pa. R.C,P. 1029(e). WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor as a matter of law, Respectfully submitted. SHOllENBERGER & JANUZZI, llP DATED: February /{", 1999 cause for the defense to request an independent medical evaluation of the Plaintiff. 3. On April 21, 1999, at 2:00 p.m., a date and time chosen by Plaintiff, an independent medical evaluation of Plaintiff was scheduled with Dr. Jason Litton in Camp Hill. (Attached hereto is counsel's 2/23/99 letter confirming the 1MB arrangements) . 4. In scheduling the independent medical evaluation, Dr. Litton required an $1100 advance payment which is non- refundable if Plaintiff failed to appear for the examination. 5. At 1:50 p.m. on April 21, 1999, defense counsel received a telephone call from Dr. Litton's office advising that Plaintiff had telephoned to report that she did not intend to appear for the scheduled examination. 6. Defense counsel thereafter telephoned and spoke with Plaintiff's attorney who confirmed having been advised by his client that she did not intend to appear for Dr. Litton's examination. 7. Defense counsel has now been advised by Dr. Litton's office that an additional charge of $800 will be required to reschedule Plaintiff's independent medical examination. WHEREFORE, Defendant, Maura Jenkins, respectfully requests that your Honorable Court issue a Rule upon Plaintiff to .2- ~ I ~ ! ..... ".;:. ~ I ~ ~ gj =0 o ~ ~ ! I ~ i ....... " . .- ~'..~ :''' ,..., l,_", , - , .'.. , S:1 , , : " I . ~,.i , , , . . ~~ .' , , ,- >,. ; w , ;a:: , r~ {;~ 1.1' . . . "_~,,,,,,~,,"f\u...""" llIlIiflllW "'.~~.u'~'1"'~""""" W"}flt.l...t\~ ~ averment and said averment is therefore denied and strict proof is demanded, By way of further answer, Plaintiff had no idea that there was an advance payment required, was never notified of same by Defendant. 5. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied and strict proof is demanded. 6. Paragraph 6 mischaracterizes what Plaintiffs attorney said. Plaintiffs attorney confirmed that Plaintiff did not intend to appear for the examination because she was ill and physically unable to attend. 7. Plaintiffs counsel does not have knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied. WHEREFORE. Plaintiff respectfully requests This Honorable Court deny the relief requested in the Defendant's Petition with regard to the payment of costs associated with the rescheduling of the examination, Respectfully submitted. SHOLLENBERGER & JANUZZI, LLP By DATED: May 7 .1999 BARBARA J. KOWALSKI. PlaintilT IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA v. CIVIL ACTION - LAW MAURA JENKINS. Defendant NO. 97-4408 CIVIL TERM UlmER OF COURT AND NOW. this ~',~daY of March. 2000. upon consideration of the Petition for Withdrawal of Appearance As Allomey Pursuant to Pa. R, Civ, P. 1012. filed by Plaintiff's allomey. a Rule is hereby issued upon PlaintilT and Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. BY TIlE COURT. I Timothy A. Shollenberger. Esq. 1820 Linglestown Road P,O. Box 60S45 Harrisburg. PA 17106-0545 Allomey for PlaintilT '.; 00 JI( ~.~~~~ () 0 - !:"~ (;) , . ~. " ,J: ',-, ~ ;. '~ .:j ., . ,J ,i :>) i r- - f.P, '3 . , . .,9 - - ~ ~'.,'-\ - ~ ,....j ';;'-' 5 ;;.J ~ . .. i ~ - '''! .... .\) :;" -<; I ,_ \...... L,_<'7,....'I:......_, ../., J Wesley Oler. Jr.. J. Barbara J. Kowalski 5971 Meade Court Harrisburg. PA Plainti IT SHOLLENBERGER & JANUZZI, LLP 1820 Linglestown Road P,O. Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234-3700 Fax Number: (717) 234-8212 BARBARA J, KOWALSKI Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA v, NO, 97-4408 MAURA JENKINS Respondent CIVIL ACTION - LAW PETITION FOR WITHDRAWAL OF APPEARANCE AS ATTORNEY PURSUANT TO PA. R. CtV. P. 1012 And Now comes the Petitioner, TIMOTHY A, SHOLLENBERGER. ESQ., and SHOLLENBERGER & JANUZZI, LLP, and files the following Petition for Withdrawal of Appearance as Attorney. Pursuant to Pa, R. Civ. p, 1012. 1, The Petitioner, Timothy A, Shollenberger. with a mailing address of 1820 Linglestown Road, Harrisburg PA 17106. is Attorney for the Respondent, in the matter of Barbara J, Kowalski v, Maura Jenkins, Cumberland Court of Common Pleas Docket No, 97-4408, 2, The Respondent, Barbara J, Kowalski, with a mailing address of 5971 Meade Court. Harrisburg. Dauphin County, Pennsylvania, is the Plaintiff Party in the matter of Barbara J, Kowalski v, Maura Jenkins, Cumberland County. Court of Common Pleas, Docket No, 97-4408, 3, On August 13, 1997. Petitioner, Timothy A, Shollenberger, filed a Praecipe for Writ of Summons in the matter of Kowalski v, Jenkins with ihe Cumberland County Court of Common Pleas Docket Number 97-4408, 4, The Petitioner, Timothy A. Shollenberger, on January 19, 1999, as attorney for Respondent, received from defense attorney, Michael Badowski, a Praecipe for Rule to File a Complaint. 5. On February 2,1999. Petitioner. Timothy A, Shollenberger. filed a Complaint in the matter of Kowalski v, Jenkins with the Cumberland County Court of Common Pleas Docket Number 97-4408, 1 6, On February 2, 1999, defense allomey, Mike Badowski's office called Petitioner's office to schedule possible IME dates, with Dr, Lillon, for the Respondent, Barbara J, Kowalski, (See inter-office memorandum allached hereto as Exhibit "A".) 7. At some point between February 2, 1999 and February 23, 1999, the Respondent, Barbara J, Kowalski, selected April 21, 1999, at 2:00 PM, as her IME appointment. 8, At some point prior to the Respondent, Barbara J, Kowalski's IME appointment, the Petitioner, Timothy A. Shollenberger, set up an appointmenito prepare the respondent for her IME, (See inter-office memorandum attached hereto as Exhibit "B",) 9, On April 21, 1999, the Respondent, Barbara J, Kowalski, called Dr, Litton's office, ten minutes prior to her scheduled appointment time, to cancel her IME, 10, On April 29, 1999, defense attomey, Michael Badowski, filed a Petition of Defendant for Rule Upon Plaintiff to Show Cause Why She should not be Compelled to Present Herself for Independent Physical and Medical Examination Pursuant to Pa, R.C,P. 4010 and 4019, 11, At some point after April 29, 1999, the defendant's insurance company. State Farm, attempted to hold the Responden!. Barbara J, Kowalski, responsible for the cost of the IME. in the amount of S8OO,oo, for her failure to show up for the IME, 12, Through the Petitioner, Timothy A, Shollenberger's efforts, the Respondent, Barbara J, Kowalski, was successful in gelting State Farm withdraw their attempt to collect $800,00 from the Respondent as a result of missing her previously scheduled IME, 13. On April 30, 1999, the Honorable Wesley Oler, Jr, issued a Rule Upon Plaintiff to Show Cause why she should not be compelled to present herself for independent physical and medical examination pursuant to Pa. R.C,P, 4010 and 4019, 14, On May 7,1999, the Petitioner, Timothy A. Shollenberger, informed the Respondent and enclosed the Rule that was issued by Judge Oler, A true and correct copy of that letter is attached hereto as Exhibit 'C", In that letter, the Petitioner, Timothy A, Shollenberger, informed the Respondent thaI 'our fee agreement requires you to cooperate with us in the handling of the mailer," The letter also stated thaI the rules relating to our Code of Ethics permit an attorney to withdraw if the client fails to substantially fulfill an obligation to the lawyer regarding the lawyer services and has been given reasonable waming that the lawyer would withdraw unless that obligation is fulfilled, Additionally, the letter informed the Respondent that messages were left for her to set up an appointment to meet with the Petitioner, Timothy A. Shollenberger, regarding Dr, lillon's IME. 2 15, On May 11, 1999, the Petitioner, Timothy A, Shollenberger, filed Answer of Plaintiff for Petition of Defendant for Rule Upon Plaintiff to Show Cause Why She Should not be Compelled to Present Herself for Independent Physical and Medical Examination Pursuant to Pa, R.C,P. 4010 and 4019, 16, On, June 10, 1999, the Petitioner, Timothy A. Shollenberger, met with the Respondent, Barbara J, Kowalski, in attempt to get her cooperation for the purpose!) of facilitating and moving her case forward. 17, At the June 10, 1999 meeting, the Respondent, Barbara J, Kowalski, was informed by the Petitioner, Timothy A. Shollenberger, that if there was any lack of cooperation in the future, the Petitioner would withdraw as counsel in the prosecution of the respondent's case, 18. At the June 10, 1999 meeting, the Respondent. Barbara J, Kowalski, informed the Petitioner, Timothy A, Shollenberger, that she would cooperate and would like to move forward on her case. 19, On October 8, 1999, the Petitioner, Timothy A, Shollenberger, after learning that the respondent, Barbara J, Kowalski, was still not cooperating in scheduling an IME, wrote the Respondent and requested that she call Petitioner's secretary for purposes of scheduling an IME with Dr, Litton, In that same letter, the Petitioner, Timothy A. Shollenberger, informed the Respondent that if she did not cooperate that he would have to withdraw from the case, A true and correct copy of that letter is attached hereto a Exhibit '0'. 20, On October 27, 1999, the attorney for the Defendant inquired of Petitioner whether he had succeeded in getting a date from the Respondent as to scheduling of the IME, A true and correct copy of this letter is attached hereto as Exhibit 'E', 21, On November 19, 1999, atthe request of the Respondent, Barbara J, Kowalski, the Petitioner, Timothy A Shollenberger, contacted State Farm to get their best and final settlement offer, A true and correct copy of that letter is attached hereto as Exhibit 'F", 22, On December 10,1999, defense counsel, Michael M, Badowski, wrote the Petitioner and communicated State Farm's final offer of $4000,00, A true and correct copy of that letter is attached hereto as Exhibit 'G', 23, On December 10,1999, the Petitioner, Timothy A Shollenberger, wrote the Respondent. Barbara J, Kowalski. communicating State Farm's best and final offer, In that same letter, the Petitioner also agreed to reduce his fee from forty percent to thirty three percent in a further effort to resolve this matter, A true and correct copy of that letter is attached hereto as Exhibit 'H', 3 , . SHOLLENBERGER & JANUZZI. LLP I!II:G U~(llES."i"1\VN "'(lAO r ("! fto,-l)( l'M.)~4'\ TIMOTHY A. SHOI.lEl'BERGER KARl. //A.'iUZZI ELIZABETH A. ONl1<O' HARRISBURG. PA, 17106-('545 Em.ul ~hoh..n14";M"_utffl mj) m.17('\) FA.' 1717) Zl4-8Zll .~Iau ____. Snr """ .. May 7, 1999 with otfl(t'$ HI EIr:ahrthvlUr (510) J6Z-+t72 W,Ike..B.m 1\701 61Z.(I711 CERTIFIED MAIL. RETURN RECEIPT REQUESTED Mrs. Barbara J. Kowalski 5971 Meade Court Harrisburg, PA 17112 Dear B. J.: Enclosed please find a Rule that was issued by Judge Oler which is self- explanatory. I also enclose our answer thereto Our fee agreement with you reqUIres you to cooperate With us in the handling of the matter. The rules relating to our Code of Ethics allows an attomey to withdraw if "the client fails substantially to fulfill an obligalion to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will Withdraw unless the obligation is fulfilled.' or if "other good cause for withdrawal exists.' By copy of this letter I am placing you on notice that your failure to appear al this scheduled examination has caused additional legal work for myself and my staff. We had no advance warning of it and now must defend you with regard to your failure 10 appear. Should you not appear at another medical examination I Will be forced to withdraw as your counsel. I note also that I wrote you some months ago, and I enclose a copy of that letter. telling you that it was time for us to sit down and seriously analyze this case WIth regard to settlement and you did not come in to see me In that regard. Additionally. In early March, Cindy called and left messages for you to call her to set up an appointment to meet with me to prepare you for Or. litton's IME. You did not return those calls and no meeting occurred. I cannot proceed with representation In Ihis qUlle difficult case without your cooperation and will seek WIthdrawal unless more cooperation is forthcoming In the future, You know personally I like you very much. I know you are going through some difficult times right now and Wish to work With you and do the best I can for you; however, I do not believe that my obligation as your attorney extends to purSUing my client in the hopes they will cooperate With me in secunng a faIr legal result on theIr behalf EXHIBIT I C SHOLLENBERGER & JANUZZI. LLP 1"10 L1NGl~"OWN ROAD PO IlUXftO'4' TIMOTHY A SHOLlENBERGER KARl. I. JANUZZl EUZABETH A. 0Nl1<0' HARRISBURG. PA. 17106-0545 17171134.l700 FAX Hl7IlH.811l Wnler's Direct E-mail. tastli)sholhanlaw com ."IIo.........s...,.,.,... ",,,il 011.:..", Eh..bod,.,U. (717) J6Z-1471 WUl...Bane (\701 822..,711 October 8, 1999 Mrs, Barbara J. Kowalski 5971 Meade Court Harrisburg, Pa 17112 Dear B. J.: Enclosed please find a letter dated September 7. 1999, which I received September 10. 1999. I apologize for not responding to you sooner; however. I was in trial at the time I received it. In any event. Mr. Badowski slightly mlscharacterizes my statements to him on the phone. lNhat I said to him was that if you continued to not give me a date to do the medical examination, that I would feel I would have to withdraw from the case. B.J, I do not want it to come to that and I hope it does not. Upon receipt of this letter. would you please call my secretary. Cindy, providing dates that you are agreeable to with regard to rescheduling your medIcal examlnallon With Or. Litton, As you know. we have succeeded In having State Farm back off in its request that you pay for the cost of the first scheduled examination. Please contact me by phone. letter or e-mail so that we may move forward with this matter. Very truly yours. Enclosure T ASlbjs EXHIBIT I D ... In The Court of Common PIcas of Cumberland County, Pennsylvania Barbara J. Kowalski \'5. Maura Jenkins, et. al. Serve, Barbara J. Kowalski N~ 97-4408 Civil Now. 3/7/00 . 20 00. I. SHERIFF OF CUMBERLAND COUNTY. P A. do hereby deputize the SherilTof Dauphin County to execute this Writ, this deputation being made at the request and risk of the PlaintilT. ~ r~~Xf~ ' 5heriffofCumberland County. PA Affidavit of Service Now, . 20_, at o'clock M. served the within upon at bv handine to . ~ a copy of the original and made known to the contents thereof. So answers. Sheriff of County, PA Sworn and subscribed before me this _ day of ___' 20__ COSTS SERVICE S !\11LF..AOE ____ . AFFlDA VIT $ _^ f.._'. . . '. - HOLLENBERGER & 1820 Linglestown Road P,O, Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234-3700 Fax Number: (717) 234-8212 v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4408 CIVIL ACTION - LAW BARBARA J. KOWALSKI Plaintiff MAURA JENKINS Defendant ORDER AND NOW, this ~ day of April, 2000. it is hereby ORDERED that Plaintiffs Petition to Make Rule Absolute is GRANTED and Timothy A. Shollenberger withdraws his appearance as counsel. 1st T"IU:: ...~~" ~"'OL; t:.~.~"", it c_ i.. it,... ".~, .... " n.J In lo' ,r"o . . ..'.. ~ld andkc~:'.",;.~ ,;. ~.-'C-~i~,Jt' ftl. n,yJ c:ll,. i d. . .~ ~ Pr .,honolary ""--0 SHOLLENBERGER & JANUZZI, LLP 1820 Linglestown Road P.O. Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234-3700 Fax Number: (717) 234-8212 v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4408 CIVIL ACTION. LAW BARBARA J. KOWALSKI Plaintiff MAURA JENKINS Defendant PETITION TO MAKE RULE TO MAKE ABSOLUTE And Now comes the Petitioner, TIMOTHY A. SHOLLENBERGER, ESQ., and SHOLLENBERGER & JANUZZI, LLP, and files the following Petition to Make Rule Absolute and does respectfully represent the following: 1. On or about February 23, 2000, the Petitioner, Timothy A. Shollenberger, filed a Petition for Withdrawal of Appearance as Attorney Pursuant to Pa.R.Civ.P 1012. 2. On March 15, 2000, the Honorable J. Wesley Oler Jr. issued a Rule to Show Cause why petitioner's petition for withdrawal of appearance as attomey pursuant to Pa.R.Civ.P. 1012 should not be granted. 3. On March 20, 2000. the Respondent, Barbara J. Kowalski, received Judge Oler's Rule to Show Cause. A true and correct copy of the retum receipt eVidencing that Judge Oler's Order was sent via certified mail. is attached hereto at Exhibit A. 4. To date the Respondent has not filed a response to Judge OIer's Rule. 1 3. In paragraph 8 of her Complaint, Plaintiff alleges that as a result of the accident she suffered "serious and permanent injuries of numerous areas of her body as therein set forth." 4. The allegations of Plaintiff's Complaint placed her physical condition in controversy and counsel for Defendant sought to have Plaintiff undergo an Independent Medical Examination ("IME"). 5. After communication between counsel for Defendant and former counsel for Plaintiff, it was agreed that Plaintiff would voluntarily appear for an 1HE on April 21, 1999, at 2:00 P.M. in the offices of Jason Litton, M.D., in Camp Hill. A letter dated February 23. 1999. confirming the scheduling of the IME is attached hereto, incorporated herein by reference and marked as Exhibit "B." G. Plaintiff failed to appear for the IME and pursuant to a Petition for a Rule to Show Cause filed by counsel for Defendant on April 28, 1999, the Honorable J. Wesley Oler, Jr. issued a Rule upon Plaintiff to show cause why she should not submit to an IHE before Dr. Litton and to pay, in advance, the sum of $800.00 representing costs associated with the canceled IHE. A copy of the Petition and Judge Oler's Order are attached hereto. -2- . incorporated herein by reference and marked collectively as Exhibit "C." 7. On or about May 7, 1999, former counsel for Plaintiff filed an Answer to petition for Rule to Show Cause. A copy of said Answer is attached hereto, incorporated herein by reference and marked as Exhibit "D." B. After discussion between counsel for Defendant and former counsel for Plaintiff, it was agreed that the Plaintiff would voluntarily submit to an 1ME by Dr. Litton, the relief sought in the Petition for Rule to Show Cause would be moot, and this case could move forward without further intervention by the court. 9. Despite numerous efforts by counsel for Defendant and former counsel for Plaintiff, Plaintiff would not agree to provide dates and times when she would be available for an 1ME. 10. Pursuant to a Petition for Rule to Show Cause filed by Plaintiff's former counsel, the Honorable Judge Oler issued a Rule upon Plaintiff dated March IS, 2000, to show cause why counsel should not be permitted to withdraw his appearance on Plaintiff's behalf. 11. Plaintiff did not respond to the Rule and the Rule was -3- Exhibit A SHOLLENBERGER & JANUZZI, LLP 1820 Linglestown Road P,O. Box 60545 Harrisburg. Pennsylvania 17106-0545 Telephone Number: (717) 234-3700 Fax Number: (717) 234-8212 Attorne s for Plaintiff BARBARA J. KOWALSKI. Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 97-4408 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT MAURA JENKINS. Defendant AND NOW comes the Plaintiff, BARBARA J. KOWALSKI, by and through her attomeys. SHOLLENBERGER & JANUZZI, liP. and does respectfully represent the following: 1. The Plaintiff. BARBARA J. KOWALSKI, is an adult individual who currently resides at 5971 Meade Court. Harrisburg. Dauphin County. Pennsylvania. 2. The Defendant, MAURA JENKINS. is an adult individual whose last known address is 24 West Locust Street. Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. The facts and circumstances hereinafter set forth took place on September 12. 1995 at or about 5:30 p.m. on Market Street, Camp Hill, Cumberland County. Pennsylvania. 4. At the aforesaid time and place, the Plaintiff. BARBARA J. KOWALSKI, was the owner and operator of a 1992 Gee Stonn, 5. At the aforesaid time and place. the Defendant, MAURA JENKINS. was the owner and operator of a 1992 Honda Accord. St~~';~ I. .oA....:z aJI ur:c 4'1O.('.U:;Srou..~ RfW). PO 9li'l ~tM5. ~V\AA.l.i'jjlUlG f'l~ 1 ':';,..,~ - ~l"" ::14--'~'\c~-. H.\ ...t~. ~l4 .&;;t" -- ,-._. """.,- .. ~ ~ ,. ., COUNT I BARBARA J. KOWALSKI v. MAURA JEN~INS 9. Paragraphs 1 through 8 of PI&intiffs Complaint are incorporated herein by reference and made a part hereof as if set forth in full. 10. The aforesaid collision was a direct and proximate result of the negligence of Defendant. MAURA JENKINS. in operating her vehicle in a careless. reckless and negligent manner as follows: (a) In operating her vehicle at an excessive rate of speed under the circumstances; (b) In failing to have her vehicle under proper and adequate control; (c) In failing to apply her brakes in time to avoid a collision; (d) In failing to observe Plaintiffs vehicle stopped on Market Street with the left tum signal on; (e) In pennitting or allowing her vehicle to strike and collide with the rear of the vehicle operated by the Plaintiff. in violation of 75 Pa.C.S.A. ~3361; and. (f) In otherwise operating said vehicle in a careless. reckless. and negligent manner and in a manner violating the Motor Vehicle Code of the Commonwealth of Pennsylvania. 11. As a direct and proximate result of the aforesaid injuries. Plaintiff. BARBARA J. KOWALSKI. has undergone and in the future will undergo great pain and suffering for which damages are claimed, 12. As a further result of the aforesaid injuries. Plaintiff, BARBARA J. KOWALSKI, has suffered and may continue to suffer a loss of eamings for which damages are claimed. 13. As a further result of the aforesaid injuries, Plaintiff. BARBARA J. KOWALSKI, had and/or may in the future incur expenses for medical treatment and rehabilitation for which damages are claimed, } "HL~",,"K.Ul' .M,.~-:..." l..U' :~\)U."";l!S"("'''''l.o\O.pn 8<_':',"".....!:o.~A{", ".. :-:...'~...~ ~I~- 1Wl"'~'. HL, ",';'1.1 If::~ 14. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has and/or may in the future incur a loss of earning capacity for which damages are claimed. 15. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has sustained scarring and disfigurement for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff, BARBARA J, KOWALSKI, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has incurred or may hereinafter incur financial expenses and loss which exceed sums recoverable under the limitations and exclusions of the Pennsylvania Motor Vehicle Financial Responsibility Law for which damages are claimed. 18. As a further result of this collision, Plaintiff. BARBARA J. KOWALSKI, has and may in the future incur reasonable and necessary medical and rehabilitative costs and expenses in excess in the amounts paid or payable pursuant to Subchapter B of the Pennsylvania Motor Vehicle Financial Responsibility Law, Workers' Compensation or any program, group contract. or other arrangement for payment of benefits as defined in 75 Pa. C.S.A. Section 1719. 19, Plaintiff is covered by the full tort option under her motor vehicle insurance policy with General Accident Insurance Company. A copy of the declaration page is attached hereto as Exhibit 'A: WHEREFORE, Plaintiff, BARBARA J. KOWALSKI, demands judgment against the Defendant, MAURA JENKINS, for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted. SHOLLENB JANUZZI, LLP Dated: By: January 29. 1999 , " ~ \t+..1UL'8l..lt\.,{Jt\;I\'ol':"'t :d" :!l'J;_'.Cl.~.C'\\.,..It:);~n.p;) !1I.'Xo>;~_~....._~it:"ft- M\."~ i~i..''ol'' ~1~::'l4 \'"','.,"', "'to .:''H!./1': ExhibIt B Exhlblt C cause for the defense to request an independent medical evaluation of the Plaintiff. 3. On April 21, 1999, at 2:00 p.m., a date and time chosen by Plaintiff, an independent medical evaluation of Plaintiff was scheduled with Dr. Jason Litton in Camp Hill. (Attached hereto is counsel's 2/23/99 letter confirming the IME arrangements) . 4. In scheduling the independent medical evaluation, Dr. Litton required an $1100 advance payment which is non. refundable if Plaintiff failed to appear for the examination. 5. At 1:50 p.m. on April 21, 1999, defense counsel received a telephone call from Dr. Litton's office advising that Plaintiff had telephoned to report that she did not intend to appear for the scheduled examination. 6. Defense counsel thereafter telephoned and spoke with Plaintiff's attorney who confirmed having been advised by his client that she did not intend to appear for Dr. Litton's examination. 7. Defense counsel has now been advised by Or. Litton's office that an additional charge of $800 will be required to reschedule Plaintiff's independent medical examination, WHEREFORE. Defendant, Maura Jenkins. r-sOP.ctfully requests that your Honorable Court issue a Rule upon Plaintiff to . :2 . EahibIt 0 averment and said averment is therefore denied and strict proof is demanded. By way of further answer, Plaintiff had no idea that there was an advance payment required, was never notified of same by Defendant. 5. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied and strict proof is demanded. 6. Paragraph 6 mischaracterizes what Plaintiffs attorney said. Plaintiffs attomey confirmed that Plaintiff did not intend to appear for the examination because she was ill and physically unable to attend. 7. Plaintiffs counsel does not have knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied. WHEREFORE. Plaintiff respectfully requests This Honorable Court deny the relief requested in the Defendant's Petition with regard to the payment of costs associated with the rescheduling of the examination. Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP By DATED: May 7 . 1999 EllhIblt E BARBARA J. KOWALSKI, PLAINTIFFS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW VS. NO. 97-4408 CIVIL MAURA JENKINS, DEFENDANT. JURY TRIAL DEMANDED ORDBR AND NOW, this ~ day of _~'\)~ ~-t , 2000, upon consideration of the attached Petition of Defendant, Maura Jenkins, it appearing that Plaintiff, Barbara J. Kowalski, has not timely filed a reply to this Court's issued Rule of June 12, 2000, the Rule is hereby made absolute. It is thus ordered that Plaintiff, Barbara J. Kowalski, submit herself to independent physical examination by orthopedist, Jason J. Litton, M.D., in his Camp Hill office on such date as is next available for Dr. Litton, and to pay Dr. Litton in advance the sum of $800 representing the additional charges imposed by Dr. Litton as a result of Plaintiff's failure to appear for the examination when originally scheduled. BY THE COURT: J J. f ~ ~ , tI . . . ~, )." 1 10 !S~~;l,\]:V~~:,:::',:?J A'J.') ;",,; , ' . :~"{n:) -( ( .. . t:J : l' : .;'J ~ i'",,,'';'' '( (') ("~-, ~ .... -...; it ~ tl.. .> ..~- ::.:~; c '-: f;~~1 .;~ t- ):> C ;~ ,- C. ., -, ~,;.\ ~ ::l :';'t: Cw .... 4. The allegations in Plaintiff's Complaint placed her physical condition in controversy, and therefore, counsel for the Defen~ant sought to have Plaintiff undergo an Independent Medical Examination (-IME"). 5. After communication between counsel for Defendant and former counsel for Plaintiff, Timothy A. Shollenberger, Esq., it was agreed that Plaintiff would voluntarily appear for an IME on April 21, 1999, at 2:00 P.M., in the offices of Jason Litton, M.D., in Camp Hill. A letter dated February 23, 1999, confirming the scheduling of the IME is attached hereto as Exhibit -B." 6. Plaintiff failed to appear for the IME, and pursuant to a Petition for a Rule to Show Cause filed by counsel for Defendant on April 28, 1999, the Honorable J. Wesley Oler, Jr. issued a Rule upon Plaintiff to show cause why she should not submit to an IME before Dr. Litton and to pay, in advance, the sum of $800.00, representing costs associated with the canceled IME. A copy of the Petition and Judge Oler's Order are attached hereto as Exhibit -C." 7. On or about May 7, 1999, former counsel for Plaintiff filed an Answer to P~tition for Rule to Show Cause. A copy of Plaintiff's Answer is attached hereto as Exhibit -D." 8. After discussion between counsel for Defendant and former counsel for Plaintiff, lt was agreed that the Plaintiff - :2 - would voluntarily submit to an IME by Dr. Litton, the relief sought in the Petition for Rule to Show Cause would be moot, and this case could move forward without further intervention by the rourt. 9. Despite numerous efforts by counsel for Defendant and former counsel for Plaintiff, Plaintiff would not agree to provide dates and times when she would be available for an IME. 10. Pursuant to a Petition for Rule to Show Cause filed by Plaintiff's former counsel, the Honorable Judge Oler issued a Rule upon Plaintiff dated March 15, 2000, to show cause why counsel should not be permitted to withdraw his appearance on Plaintiff's behalf. 11. Plaintiff did not respond to the Rule, and therefore. the Rule was made absolute, allowing former counsel to withdraw his appearance by Order of Court dated April 26, 2000. A copy of the Court's Order is attached hereto as Exhibit -E.- 12. Pursuant to a second Petition for a Rule to Show Cause filed by counsel for Defendant on June 8, 2000, the Honorable J. Wesley Oler, Jr. issued a Rule returnable fifteen (15) days after service upon Plaintiff to show cause why she should not submit to an IME before Dr. Litton and to pay, in advance, the sum of $800.00, representing costs associated with .3. the canceled IME. A copy of the Petition and Judge oler's Order are attached hereto as Exhibit "F." 13. Nearly fifty (50) days after Service of the Rule upon the Plaintiff, counsel for the Defendant, having not heard form Plaintiff, filed a Petition to Make Rule Absolute resulting in this Court's August 14, 2000, Order making its Rule Absolute, thereby ordering Plaintiff, Barbara J. Kowalski, to submit herself to an independent physical examination by orthopedist, Jason J. Litton, M.D., and to pay Dr. Litton in advance the sum of $800 representing the additional charges imposed by Dr. Litton as a result of Plaintiff's failure to appear for the examination when originally scheduled. A copy of the Petition and Judge Oler's Order are attached hereto as Exhibit ftG." 14. On October 19, 2000, via letter, counsel for Defendant. reminded Plaintiff of Judge Oler's Order which had been served on her by the Court in August, and provided her with a courtesy copy of the Order. The letter went on to state that if plalntiff failed to schedule an IME with Dr. Litton by November 3, 2000, counsel for Defendant would file a Motion for Sanctions with the Court to have the case dismissed. A copy of the letter is attached hereto as Exhibit ftH." - 4 . 18. Under Pennsylvania Rule of Civil Procedure 4019, the court may enter a judgment of non pros or a default against the disobedient party. Pa.R.C.P. 4019(c) (3). 19. Court's have entered judgments of non pros or default judgement for: repeated failure to produce a witness for deposition and to produce records (Luszczynski v. Bradley, 729 A.2d 83 (Pa. Super. 1999)); repeated failure to respond to interrogatories and requests for production of documents (Lawrence v. General Medicine Ass'n., 602 A.2d 1360 (Pa. Super. 1992)); failure to produce expert reports or answers to interrogatories (McSloy v. Jeanes Hospital, 546 A.2d 684 (Pa. Super. 1988)). 20. In the instant action, Plaintiff has failed to make herself available for an IME since the originally scheduled exam of April 21, 1999, a period of more than 1~ years despite being ordered to do so by the Court. 21. As mentioned above, Plaintiff's physical condition is central to the instant case, and therefore, failure to obtain an IME in a timely fashion severely prejudices the Defendant. 22. Moreover, Plaintiff's choice to ignore this Court's Order of August 14, 2000, combined with the history leading up to the issuance of that Order justifies dismissal of this matter as the only meaningful remedy. .6- ExhIbIt A. SHOLLENBERGER & JANUZZI, LLP 1820 Linglestown Road P.O. Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234-3700 Fax Number: (717) 234-8212 Attorne s for Plaintiff BARBARA J. KOWALSKI, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4408 v. MAURA JENKINS, Defendant CIVIL ACTION -LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, BARBARA J. KOWALSKI, by and through her attorneys, SHOLLENBERGER & JANUZZ/. LiP, and does respectfully represent the following: 1. The Plaintiff, BARBARA J. KOWALSKI, is an adult individual who currently resides at 5971 Meade Court, Harrisburg, Dauphin County, Pennsylvania. 2. The Defendant, MAURA JENKINS, is an adult individual whose last known address is 24 West Locust Street, Mechanicsburg. Cumberland County, Pennsylvania 17055. 3. The facts and circumstances hereinafter set forth took place on September 12, 1995 at or about 5:30 p.m. on Market Street, Camp Hill, Cumberland County, Pennsylvania, 4. At the aforesaid time and place, the Plaintiff, BARBARA J. KOWALSKI, was the owner and operator of a 1992 Goo Storm. 5. At the aforesaid time and place, the Defendant. MAURA JENKINS, was the owner and operator of a 1992 Honda Accord. ~."","'A..:l.:lLJ llZO\..If'G....Dt'UlI\'JIrjjRQllD.'O IOKtQM\.~RG P4 lil\Wt~ ,1\11 :]il3~. ".u ,':'1~ 2341:12 COllNTI ElAB.BARA J. KOWALSKI v. MAURA JENKINS 9. Paragraphs 1 through 8 of Plaintiff's Complaint are incorporated herein by reference and made a part hereof as if set forth in full. 10. The aforesaid collision was a direct and proximate result of the negligence of Defendant. MAURA JENKINS, in operating her vehicle in a careless. reckless and negligent manner as follows: (a) In operating her vehicle at an excessive rate of speed under the circumstances; (b) In failing to have her vehicle under proper and adequate control; (c) In failing to apply her brakes in time to avoid a collision: (d) In faijing to observe Plaintiff's vehicle stopped on Market Street with the left tum signal on: (e) In permitting or allowing her vehicle to strike and collide with the rear of the vehicle operated by the Plaintiff. in violation of 75 Pa.C.S.A. ~3361; and, (f) In otherwise operating said vehicle in a careless. reckless, and negligent manner and in a manner violating the Motor Vehicle Code of the Commonwealth of Pennsylvania. 11. As a direct and proximate result of the aforesaid injuries. Plaintiff, BARBARA J, KOWALSKI, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 12. As a further result of the aforesaid injuries. Plaintiff. BARBARA J. KOWALSKI, has suffered and may continue to suffer a loss of eamings for which damages are claimed. 13. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI. had and/or may in the future incur expenses for medical treatment and rehabilitation for which damages are claimed. ) StO..i.f."8f.RCU.J;\...-ZZI uP laolJ!'oGW~~ItC...o.'o ~fIi)\4'.WAAAiSaLtlG p_~ 1"10f1~!1 -\" Z)l, J~.'>Vi :i'1~; 1l4-Gl:t 14. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI. has and/or may in the future incur a loss of earning capacity for which damages are claimed. 15. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has sustained scarring and disfigurement for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI. has incurred or may hereinafter incur financial expenses and loss which exceed sums recoverable under the limitations and exclusions of the Pennsylvania Motor Vehicle Financial Responsibility Law for which damages are claimed. 18, As a further result of this collision, Plaintiff, BARBARA J. KOWALSKI, has and may in the future incur reasonable and necessary medical and rehabilitative costs and expenses in excess in the amounts paid or payable pursuant to Subchapter B of the Pennsylvania Motor Vehicle Financial Responsibility Law. Workers' Compensation or any program. group contract. or other arrangement for payment of benefits as defined in 75 Pa. C.SA Section 1719. 19. Plaintiff is covered by the full tort option under her motor vehicle insurance policy with General Accident Insurance Company. A copy of the declaratlon page is attached hereto as Exhibit 'A: WHEREFORE. Plaintiff, BARBARA J. KOWALSKI, demands judgment against the Defendant, MAURA JENKINS, for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, SHOLLENB E,Rl JANUZZI. LL~./ ;j/ / y . Sh r, Esq. LD 3 By: Dated: January 29, 1999 ~ St<<ll.U."d!tAGfJIll "",,'l.'0 u.P lCOUNC.LUT~'tII"")AD.~,., 80\llL~!J4!l.~:ftG,.. t-nC6~ ,~t~:14rX.f~, ~:'~,:::W1Z\1 Exhibit B ExhIbIt 0 MICD&L M. 1lADOWSItI, ESOI1II1Z 'a. Supzwme Court I,D. No. 32'" MIc:uI.Z J. 'mOU. E'OI1II1Z 'a. Supzwme Court I.D. No. 71117 IIZntoUlS , BVA.I A 'rofa..10nal Corpor.t10n 101 .iJIa str..t ....t ofn... Boll 132 Bazr1&burv, Pann.ylvan1a 1710.-0.32 Telephone: rax: E-Ka11: 17171 231-3200 17171 2J&-UU nybavtepu. net Attorney for Defendant: ~~ :-: i1 ..,..=> ~ .~ ~-... :v 1:1 - "..,.., :,:-'..'0 t? IN THE COURT OF COMMoN P~ .;, OF CUMBERLAND COUNT'/!.' PENNA. ',;j CIVIL ACTION - LAW .... I'J ; m ". -. --.,. --' '> BARBARA J. KOWALSKI. PLAINTIFFS. VS. MAURA JENKINS, DEFENDANT. NO. 97-4408 CrvIL JURY TRIAL DEMANDED -~ PB'l'rrYOH OP DRPDnMl'l' POR. ROLI!!:: ~~~:.: TO SHOW (!ADSI: WHY SHR SBOUt.n N . TO PllRll1Ml' IrR1Illn,p POR nmRPm~~;;~~; AIm tnmyCAL lfYS,vrv",.IOH Ptr'Rsn PA. R. crv. P. 4010 ANn 401~ AND NOW, comes Defendant, Maura Jenkins, by and through her attorneys. to petition this Honorable Court to issue a Rule upon Plaintiff, Barbara J. Kowalski (Hoover), to show cause why she should not present herself for independent physical and medical examination pursuant to Pa. R. Civ. P.4010 for the following reasons: 1, The matter of this case involves the occurrence of a no property damage minor rear end ~tor vehicle accident from which Plaintiff claims to have suste~ne~ physical injury. 2. Thus, the physical condition of the Plaintiff i. the primary element of controversy in this case providing good -<, cause for the defense to request an independent medical evaluation of the Plaintiff. 3. On April 21, 1999, at 2:00 p.m., a date and time chosen by Plaintiff, an independent medical evaluation of Plaintiff was scheduled with Dr. Jason Litton in Camp Hill, (Attached hereto is counsel's 2/23/99 letter confirming the IHB arrangements) . 4. In scheduling the independent medical evaluation, Dr. Litton required an $1100 advance payment which is non- refundable if Plaintiff failed to appear for the examination. 5. At 1:50 p.m. on April 21, 1999, defense counsel received a telephone call from Dr. Litton's office advising that Plaintiff had telephoned to report that she did not intend to appear for the scheduled examination. 6. Defense counsel thereafter telephoned and spoke with Plaintiff's attorney who confirmed having been advised by his client that she did not intend to appear for Dr, Litton's examination. 7. Defense counsel has now been advised by Dr. Litton's office that an additional charge of $800 will be required to reschedule Plaintiff's independent medical examination. WHEREFORE, Defendant, Kaura Jenkins, respectfllllr requests that your Honorable Court issue a Rule upon Plaintiff to - 2 . ExhIbIt D SHOLLENBERGER & J ANl'ZZI. LLP 1820 Linglestown Road P.O. Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234.3700 Fax Number: (717) 234-8212 Attomevs for Plaintiff BARBARA J. KOWALSKI. Plaintiff v. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : NO. 97-4408 CIVIL MAURA JENKINS, Defendant : JURY TRIAL DEMANDED AN$WE~ OF PLAINTIFF TO PETITIQN Of DEEENDANT FOR RUI.E Ut'ON PLAINTifF TO SHOW CAUSE WHY SHE SHOULD HQI. BE COMPELLED T() PRESENT HERSELF FOR IHPEPENDENT PHYSICAL AND MEDICAL EXA".INATlON {lURSUANTTO PA. R.C.P. 4010 AND 40Ul AND NOW comes the Plaintiff, Barbara J. Kowalski (Hoover). and does respectfully respond as follows: 1. Denied. On the contrary, Plaintiff believes and therefore avers that there may have been physical damage to the vehicle that was not visible and which would or could be visible if the bumper were pulled from the vehicle. Plaintiff also disagrees with the characterization of this collision as a minor rear end motor vehicle accident. It is admitted that Plaintiff claims to have sustained physical injury as a result of this collision. 2. Admitted. 3. Admitted. 4. Plaintiff is without knowledge sufficient to form a beflef as to the truth of said averment and said averment is therefore denied and strict proof is demanded. By way of further answer, Plaintiff had no idea that there was an advance payment required, was never notified of same by Defendant. 5. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied and strict proof is demanded. 6. Paragraph 6 mischaracterizes what Plaintiffs attorney said. Plaintiffs attorney confirmed that Plaintiff did not intend to appear for the examination because she was ill and physically unable to attend. 7. Plaintiffs counsel does not have knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied. WHEREFORE, Plaintiff respectfully requests This Honorable Court deny the relief requested in the Defendant's Petition with regard to the payment of costs associated with the rescheduling of the examination. Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP By DATED: May 7 ,1999 exhibit E bhItII , JUN .l 2 lOop ) 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARBARA J. KOWALSKI CIVIL ACTION - LAW plaintiff, v. NO. 97-4408 CIVIL MAURA JENKINS. Defendant JURY TRIAL DEMANDED R U L E AND NOW. this J Jl:h day :Jf -:Su.! e- , 2000, upon consideration of :he ?e::::on of ~efendant. Maura Jenkins. a Rule is hereby issued upon Plalntiff. Barbara J. Kowalski, to show cause, if any she has. why she should not be compelled to submit to a physical examination by Jason J. Litton in his office in Camp Hill. Pennsylvania, on such date as is next available for Dr. Litton and to payOr. Litton in advance the sum of $800.00 representing the additional charges imposed by Or. Litton as a result of Plaintiff's failure :0 appear for :he examination when originally scheduled. Rule returnable ~ days from the date of service hereof. BY THE COURT: J. -- . . III 7 .' . " ,.,'10-:" ... ..... i r.illd J. ....,.- I ~".~: 1', MICHAEL M. BADOWSKI. ESQUIRE Pa. Suprame Court I. D. No. 32646 MARGOLIS EDELSTEIN 3510 Tr1ndle Road Camp H111. PA 17011 Talephone, FAX. E-IIlll11 , (7171 975.8114 (717) 975.8124 abadowek1emarqo11eedelate1n.coa Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA BARBARA J. KOWALSKI. Plaintiff. CIVIL ACTION - LAW v. NO. 97-4408 CIVIL KAURA JENKINS, Defendant. JURY TRIAL DEMANDED PETITION OF DEFENDANT. MAtJRA JENKINS. FOR RULE TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE COMPELLED TO SUBMIT TO A PHYSICAL EXM(INATION _ PA. R.C.P. NOS. 4010 AND 4019 1. Plaintiff filed her Complaint in the above-captioned action on or about February ~. 1999. A copy of said Complaint iB attached hereto, incorporated herein by reference and marked as Exhibit "A." 2. This action arises out of a motor vehicle accident which occurred on September 12. 1995, in Camp Hill, CUmberland County, Pennsylvania. 3. In paragraph 8 of her Complaint, Plaintiff alleges that as a result of the accident she suffered "serious and permanent injuries of numerous areas of her body as therein set forth." 4. The allegations of Plaintiff's Complaint placed her physical condition in controversy and counsel for Defendant sought to have Plaintiff undergo an Independent Medical Examination ("IME"). 5. After communication between counsel for Defendant and former counsel for Plaintlff, it was agreed that Plaintiff would voluntarily appear for an tHE on April 21. 1999. at 2:00 P.M. in the offices of Jason Litton. H.D.. in Camp Hill. A letter dated February 23, 1999. confirming the scheduling of the IHE is attached hereto. incorporated herein by reference and marked as Exhibit "B." 6. Plaintiff failed to appear for the IME and pursuant to a Petition for a Rule to Show Cause filed by counsel for Defendant on April 28. 1999. the Honorable J. Wesley Oler. Jr. issued a Rule upon Plaintiff to show cause why she should not submit to an IHE before Dr. Litton and to pay, in advance. the sum of $800.00 representing costs associated with the canceled IME. A copy of the Petition and Judge Oler's Order are attached hereto. -2- incorporated herein by reference and marked collectively as Exhibit "C." 7. On or about May 7, 1999, former counsel for Plaintiff filed an Answer to Petition for Rule to Show Cause. A copy of said Answer is attached hereto, incorporated herein by reference and marked as Exhibit "D." 8. After discussion between counsel for Defendant and former counsel for Plaintiff, it was agreed that the Plaintiff would voluntarily submit to an IME by Dr. Litton, the relief sought in the Petition for Rule to Show Cause would be moot. and this case could move forward without further intervention by the court. 9. Despite numerous efforts by counsel for Defendant and former counsel for Plaintiff. Plaintiff would not agree to provide dates and times when she would be available for an IME. 10. Pursuant to a Petition for Rule to Show Cause filed by Plaintiff's former counsel, the Honorable Judge Oler issued a Rule upon Plaintiff dated March 15, 2000, to show cause why counsel should not be permitted to withdraw his appearance on Plaintiff's behalf. 11. Plaintiff did not respond to the Rule and the Rule was -)- made absolute and former counsel's appearance was withdrawn by Order of Court dated April 26, 2000. A copy of said Order is attached hereto, incorporated herein by reference and marked as Exhibit "E." 13. More than thirteen (13) months have elapsed since Defendant first filed a Petition to compel an IME. Despite the best efforts of counsel, Plaintiff has utterly failed to cooperate and to present herself for an IME as required by pennsylvania law. 14. As set forth in Defendant's prior Petition, counsel for Defendant has been advised that Dr. Litton will require an additional charge of $800.00 to reschedule Plaintiff's IHE. 15. Defendant has incurred the expense of $800.00 for Plaintiff canceling the IME scheduled for April 21, 1999, which time and date was specifically selected and agreed to by Plaintiff. 16. Pa. R.C.P. No. 4019(a) provides that: The court may, on motion, make an appropriate order if . . . (viii! A party otherwise fails to make discovery . . . . -4- ExflIblt G ExhIbIt H Defendant sought to have Plaintiff undergo an Independent Medical Examination ("IME"). After communication between counsel for Defendant and former counsel for Plaintiff, Timothy A. Shollenberger, Esq., it was agreed that Plaintiff w~uld voluntarily appear for an IME on April 21, 1999, at 2:00 P.M., in the offices of Jason Litton, M.D., in Camp Hill. A letter dated February 23, 1999, confirming the scheduling of the IME is attached to Defendant's Motion as Exhibit "B." Plaintiff failed to appear for the 1ME, and pursuant to a Petition for a Rule to Show Cause filed by counsel for Defendant on April 28, 1999, the Honorable J. Wesley Oler, Jr. issued a Rule upon Plaintiff to show cause why she should not submit to an 1ME before Dr. Litton and to pay, in advance, the sum of $800.00, representing costs associated with the canceled 1ME. A copy of the Petition and Judge Oler's Order are attached to Defendant's Motion as Exhibit "C." On or about May 7, 1999, former counsel for Plaintiff filed an Answer to Petition for Rule to Show Cause. A copy of Plaintiff's Answer is attached to Defendant's Motion as Exhibit "D." After discussion between counsel for Defendant and former counsel for Plaintiff, it was agreed that the Plaintiff would voluntarily submit to an 1ME by Dr. Litton, the relief sought in the Petition for Rule to Show Cause would be moot, and this ca.. - 2 . could move forward WIthout further intervention by the court. However, despite numerous efforts by counsel for Defendant and former counsel for Plaintiff, Plaintiff would not agree to provide dates and times when she would be available for an 1ME. Pursuant to a Petition for Rule to Show Cause filed by Plaintiff's former counsel, the Honorable Judge Oler issued a Rule upon Plaintiff dated March 15, 2000, to show cause why counsel should not be permitted to withdraw his appearance on Plaintiff's behalf. Plaintiff did not respond to the Rule, and therefore, the Rule was made absolute, allowing former counsel to withdraw his appearance by Order of Court dated April 26, 2000. A copy of the Court's Order IS attached to Defendant's Motion as Exhibit "E." Pursuant to a second Petition for a Rule to Show Cause filed by counsel for Defendant on June 8, 2000, the Honorable Judge Oler issued a Rule returnable fifteen (15) days after service upon Plaintiff to show cause why she should not submit to an IME before Dr. Litton and to pay, in advance, the sum of $800.00, representing costs associated with the canceled IME. A copy of the Petition and Judge Oler's Order are attached to Defendant's Motion as Exhibit "F." Nearly fifty (SO) days after Service of the Rule upon the PlaIntiff, counsel for the Defendant, having not heard from Plalntiff, flIed a Petitlon to - 3 - Make Rule Absolute resulting in this Court's August 14. 2000, Order making its Rule Absolute, thereby order~ng Plaint~ff, Barbara J. Kowalski, to submit herself to an independent physical examination by orthopedist, Jason J. Litton, M.D., and to pay Dr. Litton in advance the sum of $800 representing the additional charges imposed by Dr. Litton as a result of Plaintiff's fa~lure to appear for the exam~nation when originally scheduled. A copy of the Petition and Judge oler's Order are attached to Defendant's Motion as Exhibit "G." On October 19, 2000, via letter, counsel for Defendant, reminded Plaintiff of Judge Oler's Order which had been served on her by the Court in August, and provided her with a courtesy copy of the Order. The letter went on to state that if Plaint~ff failed to schedule an IME with Dr. Litton by November 3, 2000, counsel for Defendant would file a Motion for Sanctions with the Court to have the case dismissed. A copy of the letter is attached to defendant's Hotion as Exhibit "H." Telephone calls to Dr. Litton's office on November 7, 2000, revealed that Plaintiff had yet to schedule her rHE or make the $800.00 up front payment as directed by order of this Court. - 4 - PHILADELPHIA OFFICE THE CURTIS CENTER FOURTH FLOOR INOEPENDENCE SQUARE WEST PHILADELPHIA. PA 19106-3304 2'5.922.1100 FAX 215-922.1772 MARGOLIS EDELSTEIN AnORNEYS AT LAw DELAWARE COUNTY OFFICE 216 SOUTH ORANGE STREET MEDIA. PA 19063 e1o..~~-8Jtl FAAel0.565-43te POST OFFICE BOX 132 HARRISBURG, PA 17tOI.oln PIliS8URGH OFFICE 1500 GRANT BUILDING PlnSBURGH. PA 15219.2203 412-28'....256 FAX 412-6-12.2380 STREET ADDRESS: 35'0 TRINOLE ROAO CAMP HILL. PA 170" 717"75-1"4 FAX 717..75-1124 NEW JERSEY OFFICE PO BO'2222 216 HADOON AVENUE WESTMONT. NJ 06106.26U 6OU58-72OO F....IlOo.a5a-l017 November 30, 2000 SCRANTON OFFICE THE OPPENHEIM BUILOING 409LACKAWANNA AVENUE SUITE 3C SCRANTON. PA 16503 57O-J.<2"231 F....57O.J.<2_, WRITER MICHAEL'" BAOOWSK" DIRECT E.MAIL m_OO_..... com Mr. Curtis Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (' {\ /)e Re: Kowal ski \'s. Jenkins Civil Action No. 97-4408 Our File No. 50100.4-0205 (3987-1) Dear Mr. Long: I enclose for filing in the above-referenced action Defendant's Motion for Sanctions Pursuant to Pa. R.C.P. 4019 together with a proposed Order of Court. Also enclosed is an original and two (2) copies of Defendant's Brief in Support of Motion. In accordance with the Certificates of Service attached to the enclosed documents. copies of the same have been served upon Plaintiff, Barbara Kowalski, and duplicates are being provided directly to Judge Oler. Kindly present the matter to the Court for its prompt disposition. Thank you for your kind a~t~ticn in t~regard. t"'/57 if? . ~ ' ...t.,L ~ichae1 M. Badowski MMB/na Enclosures cc: Ms. Barbara J. Kowalskl (w/encls.l Hon. J. Wesley Oler. Jr., Judge (w/encls.l ~,... '1 '-tl , 1 .C_...C""T...._b,...__..T....~ A _........... s..o.- Ccu<t "'- AQOncy 4. The allegations in Plaintiff's Complaint placed her physical condition in controversy, and therefore, counsel for the Defendant sought to have Plaintiff undergo an Independent Medical Examination ("IME"). 5. After communication between counsel for Defendant and former counsel for Plaintiff, Timothy A. Shollenberger, Esq., it was agreed that Plaintiff would voluntarily appear for an 1ME on April 21, 1999, at 2:00 P.M., in the offices of Jason Litton, M.D., in Camp Hill. A letter dated February 23, 1999, confirming the scheduling of the 1ME is attached hereto as Exhibit "B." 6. Plaintiff failed to appear for the IME, and pursuant to a Petition for a Rule to Show Cause filed by counsel for Defendant on April 28, 1999, the Honorable J. Wesley Oler, Jr. issued a Rule upon Plaintiff to show cause why she should not submit to an IME before Dr. Litton and to pay, in advance, the sum of $800.00, representing costs associated with the canceled IME. A copy of the Petition and Judge Oler's Order are attached hereto as Exhibit "C." 7. On or about May 7, 1999, former counsel for Plaintiff filed an Answer to Petition for Rule to Show Cause. A copy of Plaintiff's Answer is attached hereto as Exhibit "D," 8. After discussion between counsel for Defendant and former counsel for Plaintiff, it was agreed that the Plaintiff - 2 - would voluntarily submit to an IME by Dr. Litton, the relief sought in the Petition for Rule to Show Cause would be moot, and this case could move forward without further intervention by the court. 9. Despite numerous efforts by counsel for Defendant and former counsel for Plaintiff, Plaintiff would not agree to provide dates and times when she would be available for an IME. 10. Pursuant to a Petition for Rule to Show Cause filed by Plaintiff's former counsel, the Honorable Judge Oler issued a Rule upon Plaintiff dated March 15, 2000, to show cause why counsel should not be permitted to withdraw his appearance on Plaintiff's behalf. 11. Plaintiff did not respond to the Rule, and therefore, the Rule was made absolute, allowing former counsel to withdraw his appearance by Order of Court dated April 26, 2000. A copy of the Court's Order is attached hereto as Exhibit "E." 12. Pursuant to a second Petition for a Rule to Show Cause filed by counsel for Defendant on June 8, 2000, the Honorable J. Wesley Oler, Jr. issued a Rule returnable fifteen (15) days after service upon Plaintiff to show cause why she should not submit to an IME before Dr. Litton and to pay, in advance, the sum of $800.00, representing costs associated with - 3 - the canceled IME. A copy of the Petition and Judge Oler's order are attached hereto as Exhibit "P," 13. Nearly fifty (SOl days after Service of the Rule upon the Plaintiff, counsel for the Defendant, having not heard form Plaintiff, filed a Petition to Make Rule Absolute resulting in this Court's August 14, 2000, Order making its Rule Absolute, thereby ordering Plaintiff, Barbara J. Kowalski, to submit herself to an independent physical examination by orthopedist, Jason J. Litton, M.D., and to pay Dr. Litton in advance the sum of $800 representing the additional charges imposed by Dr. Litton as a result of Plaintiff's failure to appear for the examination when originally scheduled. A copy of the Petition and Judge Oler's Order are attached hereto as Exhibit "G." 14. On October 19. 2000, via letter, counsel for Defendant, reminded Plaintiff of Judge Oler's Order which had been served on her by the Court in August, and provided her with a courtesy copy of the Order. .he letter went on to state that if Plaintiff failed to schedule an 1ME with Dr. Litton by November 3, 2000, counsel for Defendant would file a Motion for Sanctions with the Court to have the case dismissed. A copy of the letter is attached hereto as Exhibit "H." - 4 - 18. Under Pennsylvania Rule of Civil Procedure 4019, the court may enter a judgment of non pros or a default against the disobedient party. Pa.R.C.P. 4019(c) (3). 19. Court's have entered judgments of non pros or default judgement for: repeated failure to produce a witness for deposition and to produce records (Luszczynski v. Bradley, 729 A.2d 83 (Pa. Super. 1999)); repeated failure to respond to interrogatories and requests for production of documents (Lawrence v. General Medicine Ass'n., 602 A.2d 1360 (Pa. Super. 1992)); failure to produce expert reports or answers to interrogatories (McSloy v. Jeanes Hospital, 546 A.2d 684 (Pa. Super. 1988)). 20. In the instant action, Plaintiff has failed to make herself available for an IME since the originally scheduled exam of April 21, 1999, a period of more than 1~ years despite being ordered to do so by the Court. 21. As mentioned above, Plaintiff's physical condition is central to the instant case, and therefore, failure to obtain an IME in a timely fashion severely prejudices the Defendant. 22. Moreover, Plaintiff's choice to ignore this Court's Order of August 14, 2000, combined with the history leading up to the issuance of that Order justifies dismissal of this matter as the only meaningful remedy. - 6 . 11:.... A SHOLLENBERGER & JANUZZI. LLP 1820 Linglestown Road P.O. Box 60545 Harrisburg, Pennsylvania 17106-0545 Telephone Number: (717) 234-3700 Fax Number: (717) 234-8212 Altorne s for Plaintiff BARBARA J. KOWALSKI, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. MAURA JENKINS. Defendant NO. 97-4408 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAIN1 AND NOW comes the Plainliff. BARBARA J. KOWALSKI, by and through her attorneys, SHOLLENBERGER & JANUZZI. LLP. and does respectfully represent the following: 1. The Plaintiff. BARBARA J. KOWALSKI. is an adult individual who currently resides at 5971 Meade Court. Harrisburg. Dauphin County, Pennsylvania. 2. The Defendant, MAURA JENKINS. is an adult individual whose last known address is 24 West Locust Street. Mechanicsburg. Cumberland County, Pennsylvania 17055. 3. The facts and circumstances hereinafter set forth took place on September 12. 1995 at or lbout 5:30 p.m. on Market Street, Camp H~I. Cumberland County. Pennsylvania. 4. At the aforesaid time and place. the Plainliff. BARBARA J. KOWALSKI. was the owner and operator of a 1992 Gee Storm. 5. At the aforesaid time and place, the Defendant. MAURA JENKINS. was the owner and operator of a 1992 Honda Accord. St<<:UI.-.....u. "'..~ >.J ID~1"("'''''"0''l'''O ":Ut~,.~tlC. "'" t~l,"il!K\ :'\".54 1:'\';'..~ ,"1'" ,rK I;l~' 6. At the aforesaid time and place. the Plaintiff. BARBARA J. KOWALSKI. was at a complete stop on Market Street with her turn signal on waiting to make a left turn into the Pennsylvania Bakery. 7. At the aforesaid time and place. the Defendant. MAURA JENKINS. was traveling behind Plaintiffs vehicle when she failed to stop and struck the rear of Plaintiffs vehicle. 8. As a result of the aforesaid collision, Plaintiff. BARBARA J. KOWALSKI, has suffered serious and permanent injuries. including but not limited to the following: (a) Severe sprain and strain of the muscles. tendons, ligaments and other soft tissues at or about the cervical spine with multiple trigger points and muscle spasms; (b) Severe sprain and strain of the muscles. tendons. ligaments and other soft tissues at or about the thoracic spine with multiple trigger points and muscle spasms; (c) Severe sprain and strain of the muscles. tendons. ligaments and other soft tissues at or about the lumbar spine with multiple trigger points and muscle spasms; (d) j (e) l \ J i (f) l i , I (g) I :. (h) I I (i) , ! I i 0> I (k) I ! I , I I ) I , 1 Sprain and strain of the muscles. tendons and ligaments and other soft tissues at or about the right shoulder. Right C-6 and C.8 radiculopathy; Myofascial pain syndrome; Chronic myofascitis in the cervico-dorsal region: Chronic myofascitis in the lumbosacral region; Cephalgia; Shock to the nerves and nervous system; and. Mental and physical anguish. 2 'SHCU.E.."'lIERGtJl"JA."~,,:::l.u.r l&."OL...~~'!"tacw:l.po 9m.~!t.H.~w. p" 171\>>.oM\ ,'\tl:14.):"OO.t....'(.~\1'n4.~\;: COUNT I BARBARA J. KOWALSKI v. MAURA JENKINS 9. Paragraphs 1 through 8 of Plaintiff's Complaint are incorporated herein by reference and made a part hereof as if set forth in full. 10. The aforesaid collision was a direct and proximate result of the negligence of Defendant. MAURA JENKINS. in operating her vehicle in a careless. reckless and negligent manner as follows: (a) In operating her vehicle at an excessive rate of speed under the circumstances; (b) In failing to have her vehicle under proper and adequate control; (c) In failing to apply her brakes in time to avoid a collision; (d) In failing to observe Plaintiff's vehicle stopped on Market Street with the left turn signal on; (e) In permitting or allowing her vehicle to strike and collide with the rear of the vehicle operated by the Plaintiff. in violation of 75 Pa.C.SA ~3361; and. (f) In otherwise operating said vehicle in a careless. reckless. and negligent manner and in a manner violating the Motor Vehicle Code of the Commonwealth of Pennsylvania. 11. As a direct and proximate result of the aforesaid injuries. Plaintiff. BARBARA J. KOWALSKI, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 12. As a further result of the aforesaid injuries. Plaintiff. BARBARA J. KOWALSKI, has suffered and may continue to suffer a loss of earnings for which damages are claimed. 13. As a further result of the aforesaid injuries. Plaintiff. BARBARA J. KOWALSKI. had and/or may in the future incur expenses for medical treatment and rehabilitation for which damages are claimed. ~ ~'lUL'8lR(#LR 1 ~'t.z.:t_ UP 10J i.J!IGl.f.S.':"(\\\~ Rf~. P (1 BOlO 60.~. HAARlS8l.lfG P4 I nllt ~'!M~ ~l'"'.~}l :r"~;. F\,\ -7t..,;:J.& ~~: 14. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has and/or may in the future incur a loss of earning capacity for which damages are claimed. 15. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has sustained scarring and disfigurement for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff, BARBARA J. KOWALSKI, has incurred or may hereinafter incur financial expenses and loss which exceed sums recoverable under the limitations and exclusions of the Pennsylvania Motor Vehide Financial Responsibility Law for which damages are claimed. 18. As a further result of this collision. Plaintiff, BARBARA J. KOWALSKI. has and may in the future incur reasonable and necessary medical and rehabilitative costs and expenses in excess in the amounts paid or payable pursuant to Subchapter B of the Pennsylvania Motor Vehide Financial Responsibility Law, Workers' Compensation or any program, group contract, or other arrangement for payment of benefits as defined in 75 Pa. C.S.A. Section 1719. 19. Plaintiff is covered by the full tort option under her motor vehicle insurance policy with General Accident Insurance Company. A copy of the declaration page is attached hereto as Exhibit "A: WHEREFORE. Plaintiff, BARBARA J. KOWALSKI, demands judgment against the Defendant, MAURA JENKINS, for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, SHOLLENB E JANUZZI. LLP Dated: By: January 29. 1999 ~ !ttQJ..E,.''l!f.RCE,R 1 ~"'.~ lU" lS:OL.;i'CU'.STO\\."'~)AD.P(\ 8O\~~""'$.tWUtSRcftG p~ lil~J!oi.') i~l~~,"'l~.H\ ~1~'.!J4I1i:t1 EllhIbIt B ExhIbIt C cause for the defense to request an independent medical evaluation of the Plaintiff. 3. On April 21, 1999, at 2:00 p.m., a date and time chosen by Plaintiff, an independent medical evaluation of Plaintiff was scheduled with Dr. Jason Litton in Camp Hill. (Attached hereto is counsel's 2/23/99 letter confirming the 1MB arrangements) . 4. In scheduling the independent medical evaluation, Dr. Litton required an $1100 advance payment which is non- refundable if Plaintiff failed to appear for the examination. 5. At 1:50 p.m. on April 21, 1999, defense counsel received a telephone call from Dr. Litton's office advising that Plaintiff had telephoned to report that she did not intend to appear for the scheduled examination. 6. Defense counsel thereafter telephoned and spoke with Plaintiff's attorney who confirmed having been advised by his client that she did not intend to appear for Dr. Litton's examination. 7. Defense counsel has now been advised by Dr. I 1 I i , j I I , I 1 , Litton's office that an additional charge of $800 will be required to reschedule Plaintiff's independent medical examination. WHEREFORE, Defendant, Maura Jenkins, respectfnllr requests that your Honorable Court issue a Rule upon Plaintiff to . :2 . i ExhIbit 0 averment and said averment is therefore denied and strict proof is demanded. By way of further answer, Plaintiff had no idea that there was an advance payment required, was never notified of same by Defendant. 5. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied and strict proof is demanded. 6. Paragraph 6 mischaracterizes what Plaintiffs attomey said. Plaintiffs attomey confirmed that Plaintiff did not intend to appear for the examination because she was ill and physically unable to attend. 7. Plaintiffs counsel does not have knowledge or information sufficient to form a belief as to the truth of said averment and therefore said averment is denied. WHEREFORE. Plaintiff respectfully requests This Honorable Court deny the relief requested in the Defendant's Petition with regard to the payment of costs associated with the rescheduling of the examination. Respectfully submitted. SHOllENBERGER & JANUZZI. llP By DATED: May 7 . 1999 ElcIM E ExhIbIt F 3. In paragraph 8 of her Complaint, Plaintiff alleges that as a result of the accident she suffered .serious and permanent injuries of numerous areas of her body as therein set forth." 4. The allegations of Plaintiff's Complaint placed her physical condition in controversy and counsel for Defendant sought to have Plaintiff undergo an Independent Medical Examination ("IHE"). 5. After communication between counsel for Defendant and former counsel for Plaintiff, it was agreed that Plaintiff would voluntarily appear for an IME on April 21, 1999, at 2:00 P.M. in the offices of Jason Litton, M.D., in Camp Hill. A letter dated February 23, 1999, confirming the scheduling of the IME is attached hereto, incorporated herein by reference and marked as Exhibit "B." 6. Plaintiff failed to appear for the IME and pursuant to a Petition for a Rule to Show Cause filed by counsel for Defendant on April 28, 1999, the Honorable J. Wesley Oler, Jr. issued a Rule upon Plaintiff to show cause why she should not submit to an IME before Dr. Litton and to pay, in advance, the sum of $800.00 representing costs associated with the canceled IME. A copy of the petition and Judge Oler's Order are attached hereto, -2- incorporated herein by reference and marked collectively as Exhibit "C." 7. On or about May 7, 1999, former counsel for Plaintiff filed an Answer to Petition for Rule to Show Cause. A copy of said Answer is attached hereto, incorporated herein by reference and marked as Exhibit "D," 8. After discussion between counsel for Defendant and former counsel for Plaintiff, it was agreed that the Plaintiff would voluntarily submit to an IME by Dr. Litton, the relief sought in the Petition for Rule to Show Cause would be moot, and this case could move forward without further intervention by the court. 9. Despite numerous efforts by counsel for Defendant and former counsel for Plaintiff. Plaintiff would not agree to provide dates and times when she would be available for an IME. 10. Pursuant to a Petition for Rule to Show Cause filed by Plaintiff's former counsel, the Honorable Judge Oler issued a Rule upon Plaintiff dated March 15, 2000, to show cause why counsel should not be permitted to withdraw his appearance on Plaintiff's behalf. 11. Plaintiff did not respond to the Rule and the Rule was -3- WHEREFORE, Defendant, Maura Jenkins, prays this Honorable Court issue a Rule upon Plaintiff to show cause, if any she has, why she should not submit to an Independent Medical Examination pursuant to Pa. R.C.P. No. 4010 and to pay the charge of Jason J. Litton, M.D. in the amount of $800.00, in advance, pursuant topa. R.C.P. No. 4019. Date: June $( ,2000 -5- EatlIblt G \ JUN I 2 20~O .' '1 IN THE ::JURT :F CCMMOll ?LEAS OF CJMBERLN'!D ::1J1lT'1. PENNSYLVANIA EAF.EARA :. KOWALSKI CIVIL ACTION - LAW Plalm::.:: . v. NO. 37-4408 CIVIL :-tAt:?A :ENKWS, Defendant JURY TRIAL DEMANDED R U L E } ,J.J.h AND NOW, this .x" :iay:f -:5u.J' e, , 2000, ~c=~ =cnside~at:=n -~ :~e ~e~::::~ == :efendan:, Maura :enkins, a Ru:e is hereby issued ~pc~ ::a:~::::. Bar=ara J. Kowalski, to shc~ cause, if any she ~as. Nhy she should not be compelled to Sub~lt to a physical exarni~ation by Jason J. Litton in his office in Camp Hill, Pennsylvania, on such date as is next available for Dr. Litton and to pay Dr. Litton in advance the sum of $800.00 rep=esenting the additiona: :harges imposed by :Jr. Litton as a ~es~:t of Plaint:.::'s :al:~=e :0 appea= for the examlnation when originally scheduled. Rule returnable ~ jays frcm the jate of serlice hereof. BY THE COURT: J. _. , . It: 7,' " , ;:j -.1.4 'ZJl.1' E~ . "A." .. ..,..~~" ..... ..... ,rad :.~ ~J. I..~ f1~ ~l:')l~;;ff'f ExhIbIt H MARGOLIS EDELSTEIN PHILADELPHIA OFFICE THE CURT;S CEfHER FOURTH FLOOR iNOEPEtmENCE SaliA~E .\.E51 PHILADELPHIA PA 19106.J304 ;15.922.1100 FU 215 9~2,tT12 AnORHEYS AT UW DELAWARE COUNTY OFFICE 218 SOUTH ORANGE STREET MEOlA PA ,goeJ "D-565-1311 FAAelQ.5I5-13tll POST Ol'FICE 10' 131 HARRISIURG. PA "'DI-Gl31 STREET XOORlSS, IIID TRIHOU ROAD CoUlP HILL. PA 17Dll lU..tW"" FAll ,17"',..'2. NEW JERSEY OFFICE PO lOX 2222 2,e HIOOO/lAVENUE WESTMaNT NJ oe'OlI.2aet\ e5U!l&-1200 FAJUse"""'017 PITTS8URGH OFFICE 1500 GRANT BUILDING PlnSBURGH, PA 15219.2203 ..t2.2a'''~S6 FAA 412-642.=380 WRITER MICHAEL" IADOWSKI' DIRECT E-MAll mDldOwl&4~ tom SCRANTON OFFICE THE OPPENHEIIA IUlLDING <IOILACKAW""""'AIlENUE SLUE 3C SCRANTON PA 18503 ST0-302..n, FAXS1tl.:!02_' October 19, 2000 Ms. Barbara Kowalski 5971 Meade Court Harrisburg, PA 17112 Re: Kowalski vs. Jenkins File No. 50100.4-0205 13987-1) Dear Hs. Kowalski: Back in August of thIS year, you were served by the Cumberland County Court with Judge Oler's Order compelling your submission for independent physical examination by Dr. Litton and your payment of $800 in advance of the examinatIon. I have checked with Dr. Litton's office and! have been advised that there has been no efforts taken on your part to comply with the Court's Order. For your convenIence, I enclose another copy Judge Oler's 8/14/00 Order :n thIS regard. please be adVIsed that If you do not provide me with the date for your rescheduled examination with Dr. Litton by November 3, I will have no recourse other than to seek further sanctions from the Court to dismiss this case. " -- Very truly 'Y~rs, /',1 // I ,/ , ./ ! MIchael: M '.' tfadowskl .I MMB / na Enclosure oc-..... c...T.... _ ......__.- T....-. APlI.._~....~c~~AfI'q . . . ; c ') Q "" <=' . :""~1 .- I~ ....1 ;~ , " i'7 .r , . .... 6 "" ':"';' .. 18. =. :,~ ~i' l5 -.' .. "'f .... ~ - :'q (JJ ......