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HomeMy WebLinkAbout97-06469 1'11' " . DAVID W. K~AUI!R, P.C. ATTORNEYS AT LAW 41.A EAST MAIN STREIIT MECHANI088UAO,l'lNNSVlYANI" 11061l mn 7OII-mll ,I " '. " . , ,-,' u " " ,I , THIS DOCUMENT 18 CERTIFItD TO DE t. TRUEANOCORRECTCOPYOF'JH~ ., ORIGINAL H1iREOF, ~ ' ,. " .' I . \ I , 'I i . \ .. ,V t ,,._n ;:.;"'-'.;~.....,..'-- -. ':~...._- -",;,,...'t~;'~":;1~;;'Ito-'~tti.t.CJ:_ ~.~J . "" " I 1 , r~ \tJ n ~ 0 i ", I ~"l '.:1 , 'I' , '" ,'1,:11 I I ') " I ",1 (,,' i i~;; 1 !;~') ,:" ., " d;} 9: ,,-II '. I , :~) ~;1 ..., " .. 1'1 " , !ll, " 'I !! it 'I .I, , t" " ;1, " ;1 I; , , ". 'I . " I, " Ii " '" I; , 'J " , ;' I I"') _0 I,~)' C' "!:.J '/1 .\ : ;~-d -:'J "i! 1 " , .1 if jf.,'1' ") II". I , I~ ''-,,) lie I., 1l.:) ,I :,': JjJl' "--" ('J , OJ Ufl1 , .. :'J ~':) ;:~i -, In ..~ " ! I II ~ I, cnJ<Nt't ~J, i , ~ g r ~ [ ~ 'PI' ' . Pip. n rt ,II: II: ~, ~~~f 'n , ' , Q\ 'I )01, t't \Q ?~~! < ~g' . ~ ~ , 0.' -= -= i ~ c 0 iIll ~,~ CI.IHIl~ n " 'oj I ~ . rT !;' . 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KNAUER, P,C. , I Defendants I Jury Trial Demanded ORDER, AND NOW, this _ day of , 1998, upon conside;-atien of the foregoing' Motier and on briefs submitted thereto, it is ' ORDERED, ADJUDGED AND DECREED that the Judgment of Default ehtered in this case is set aside and stricken. BY THE COURT I J. , \ " " () _0 0 "" Ij,) 'fl "\' ii" -'j -J r" r '!l ~i 11'1 L':'11 Ii," .' ll:rJ I () +1) '1) I,~I " ..... IH~) , " , N i-'rll :;.. ~ " :"~ , C' "I:. I :.tJ -<. It:) .... ',' I' , , " , , " ;;1 " ,", , If) Cl (" r~-~J , 'II "'..1 .1'= ,I II . cd " :11 , "I;'j I~.j i.l, , 1,\ . ';[J , . 1 J-; "'J I c:.-) fJ_p-r .. ,,'f , :.,') ~Ii i H~ 1)1 .., , , , " C".. .i') I') ..iJ /1 I~ J '" , -- , I , , 'J : l.'~ -/ , ) 1.'1 ,I'll ,', 'I , ~ ,) " "'" If I -'" 'I , . und'Htook to reprelJent tho Plaint l[f and to invent.lgate and prosecute Plaintiff'n claims. 7. On March 23, 1994, lJ(!fendnntn filed a praecipe for Writ of Summons in civIl Action No, 94'SlJ-llOI-01 in the Court of Common Pleas of York County, Pennsyivnnia, in the suit denominated Deborah Graham versus Verlyn 1<' Soudern and Della M. Souders, Colonial View Condominium I\ssociates, Harold Mowery, ond Kieth (sic) Pfieffer, 8, On April 15, 1994, Hal'vey Freedenburg, E:squire, of the law firm of McNees, Wallace and Nurick, ent.ered an appearance for the Defendant Colonial View Condominium Associates and issued a Rule to File a Complaint upon the Plaintiff, 9, Verlyn K, Souders and Della M, Souders were served copy of the Writ of Summons or about March 31, 1994, 10. Copy of the Wri t of Summons was served upon Harold Mowery on April 18, 1994. 11, On April 25, 1994, counsel for the Defendants caused the Writ of Summons to be reissued, 12, Writ of Summons was reissued again on May 23, 1994, at the request of Defendants, 13, On May 23, 1994, Defendants filed a Complaint on behalf of Plaintiff, a copy of which is attached hereto and marked Exhibit 2, and incorporated by reference, 14, On June 17, 1994, the writ of Summons was reissued, 15, On June 23, 1994, the Complaint was reinstated. 16, On June 24, 1994, Answer with New Matter was filed, a copy of which is attached hereto as Exhibit 3 and incorporated by reference, . 0( 17. On July 14, 1994, Defendants filed Reply to New Matter, copy of which is attached hereto as Bxhibit 4 and incorporated by reference. 18, On August 12, 1994, MlSwer and New Matter was fil.ed by Defendant Souders, copy of which is attached and marked E:xhibit 5, incorporated by reference. 19, Defendants on I\Ugllst 30, 1994, filed Reply to New Matter, 20, Despite repeated requests by Plaintiff for action to be taken on her file and a settlement demand be forthcoming, Plaintiff on November 8, 1995, wrote to Defendant advising him of her unhappiness, A copy of said letter is attached as Exhibit 6, 21, The Defendant never responded to Plaintiff's letter of November 8 1995, which failure to respond caused Plaintiff to reach her belief that Defendant had abandoned her claim, 22. On November 27, 1995, plaintiff terminated Defndant's services because of Defendant's failure to respond to or address Plaintiff's concerns contained in her letter of November 8 1995, This termination was confirmed by Defendants in a fax dated November 27, 1995. A copy of said letter-fax is attached as Exhibit 7, 23, Defendant, despite this confirmation, did not withdraw their appearance until June 12, 1996. 24, Plaintiff unsuccGsofully sought to obtain other counsel who wel'e unwilling to enter an appearance, 25, Plaintiff, therefore, had to represent herself and ultimately negotiated a settlement with the condominium association because in part Defendant had failed to obtain service on the .J pr.oper party and summary judgment W11IJ entl~red i1gainst Plaintiff on the defendant who was/ in fact, served, 26. Plaintiff believes and therefore avers that Defendants abandoned her claim by thei r failure to timely respond 1:0 her letter of November 8, 1995/ i1nd as a result of the abandonment and negligence alleged below, was forced to accept a settlement far below the true value of her claim, 27. Defendants were negligent in: a. failing to properly invest igate Plaintiff's claim and to determine the proper parties who were responsible for her injuries; b. permitting the statute of limitations to expire against parties who were, in fact, responsible for Plaintiff's inj uries; c, instituting suit against improper parties or those whose involvement was minimal and marginal at best; , d, failing to properly evaluate Plaintiff's claim and to aggressively pursue it; e, failing 1:0 respond to Plaintiff's legitimate requests for information or to call to Plaintiff's attention information that they required in order to properly pursue and handle her claim; f, abandoning Plaintiff without assisting her to secure other counsel to replace them or to recommend counsel who would be willing to assist Plaintiff; g, failing to secure appropriate experts who woul.d have been able to advise Defendants of the proper theories of liability; h. failing to pursue and set forth proper theories of liability against the Defendants in the underlyirig action or to identify otheli" defendants Whose conduct would make the,' culpaple I i. fai ling to adhere to the standard required of attorneys holding themselves out as personal injury specialists. 28. As a direct and proximate resul t of the neglJ.gence of the Defendants set out above, Pl~intiff was unable to pursue her claim against the appropriate responsible parties, whereby causing her har.m. 29, As a direct and proximate result of the negligence of the Defendants and their abandonment of the Plaintiff, Plaintiff was unable to recover an appropriate sum of money for her pain and suffering, permanent and disabling injuries, lost wages, and loss of life's pleasures. '30. Defendants as a direct and proximate result of the'ir conduct have caused Plaintiff a loss in excess of $10,000, 31. Plaintiff demands a jury trial in this action, 32, The amount in controversy exceeds the limits required reference to arbitration under the local. Rules of Court. WHEREFORE, Plaintiff demands judgment against the Defendants I in a sum in excess of $10,000, together with interest and costs. COUNT I I 33. Paragraphs 1 through 32 are incorporated herein by reference as fully as if set ,forth at lenth. 34. The agreement between Plaintiff and Defendants implied that Defendants would use all due diligence to prosecute Plaintiff's claim. LAW q"ICII SNILBAKIR . BRIUNEMAN breacned any duty or duties as identified and set forth in Paragraph 22 of Plaintiff's complaint. 23. Paragraph 23 of Plaintiff/s Complaint oontains a series of unwarranted conclusions of law pertaining to alleged duty and conduct to which no response is required by this party pursuant to Pa.R.C.P. l029(d) I therefore, same are deemed to be denied. To the extent a response is required, it i~ specifically denied, to the extent it is implied, that this party had any involvement in the design, construction or development of townhouses or condominium units identified in Plaintiff's complaint. Therefore, is specifically denied that this party was careless, reckless or negligent in failing to have the front porch and steps covered or failing to construct the front porch and steps of the townhouse or condominium ~nit in question with a non-skid surface. By way of further answer/ Plaintiff fails to state a cause of action based upon a legal duty that is recognized in the Commonwealth of Pennsylvania. Finally, Paragraph 23(c) should be stricken as being improperly pled for the reason that it fails to notify this party of any specific allegation of negligence against which a defense can be made. 24. (Erroneously labeled 23. in Plaintiff's Complaint.) It is denied that this party was careless, reckless or negligent in any manner whatsoever or that this party caused any injuries to Plaintiff, which injuries have been specifically denied herein. It is further denied that this party is liable to -5- specifically denied and proof thereof is demanded at trial. 13. The Defendants inoorporate herein by reference thereto paragraphs one (1) through twelve (12) as if more fully set forth herein by reference thereto. 14. Paragr.aph fourteen (14) states a conclusion of law to which no answer is required. To the extent that an answer is necessary the Defendants fulfilled their duty to provide a rental unit that was reasonably safe for its intended use as a dwelling unit. 15. Denied. The averments of paragraph f lfteen (15) are specifically denied and proof thereof is demanded at trial. 16. Denied. The averments of paragraph sixteen (16) are specifically denied and proof thereof is demanded at trial. 17-23. No answer required. .NEW MATTER 24. Any injuries or damages allegedly sustained by Plaintiff, which are denied, were caused in whole, or in part, by the careless and negligent conduct of the Plaintiff and Plaintiff/s failure to exercise reasonable care for her own safety and Plaintiff's claim is barred, in whole or in part, by the provisions of the Pennsylvania Comparative Negligence Law. 25. Plaintiff assumed the risk of her injuries. 26. Plaintiff has failed to mitigate her damages. 27. It is believed, and therefore averred, that Plaintiff's alleged injury is due to conditions existing or events occurring -3- prior to the date of the incident alleged in the complaint. NEW HATTER PURSUANT TO PA.R.O.P. 2252ldl 28. Pursuant to Pennsylvania Rule of civil Procedure 2252(d) Defendants Souders herein joined Colonial View condominium Associates as an Additional Defendant and assert that said Additional Defendant is alone liable to the Plaintiff, is liable over to Oefendants Souders or is jointly or severally liable to the Plaintiff with any liability on the part of the joining Defendants being specifically denied. 29. Attaohed hereto, marked as Exhibit "A", and incorporated herein by reference is a copy of the regulations of the Colonial View Condominium Association in effect on and before March 23, 1992. Under the terms of the aforesaid regulations the repair, maintenance and snow removal of common elements, including the area allegedly involved in Plaintiff's fall, was the exclusive responsibility of Colonial View Condominium Association. 30. Attached hereto, marked as Exhibit "B", and incorporated herein by reference are per.tinent portions of the declaration creating and establishing Colonial View Condominium Associates. Under the terms of said document common elements shall be maintained by the Association, including the area allegedly involved in the Plaintiff's fall. 31. Furthermore, under the terms of the aforesaid document the Association was required to assume, and did assume, responsibility to answer for the repair and maintenance of common -4- if 4) ('I l'I!T,r;:r:rT " ,-' '," 'IVrI ,I " nlJ 1-' ri'I' - 'J H/ I.. :'l'1 f . ~ ~; i II "t el!:.1 "1'1" 1/ i J I I ,'l \,.' j ,\ " , , I, II , ' MA~KOWITZ & MARKOWITZ, p.e. ATTOHNltYS.Al'''J.AW I.! WEST M^HKJ.!;T\STn61~T P. o. !JOX IlilJ YORK, PENNSY'LVANJA 17.&Oa.ou~'U.!' ,(111) !l40.~IH!1 ",; handling the Plalnllffs case, and a copy of a letter to Dr. Trautman. The Defendant Knauer executed the praecipe to withdraw appearance, and Attorney Ronca was to execute the praecipe for entry of appearance. A true and correct copy of the Defendant's aforesaid lelter to Attorney Ronca and the praecipe to withdraw/enter appearance Is attached hereto as Exhibit "A" and Incorporated herein by reference thereto. The Defendants did not learn that Attorney Ronca had not entered his appearance on behalf of the Plaintiff untlt receipt of a letter from Charles E. Schmidt, Jr., Esquire, of Schmidt & Ronca dated February 2,1996, Informing the Defendants that Schmidt & Ronca had 'not agreed to accept the Plaintiffs case but had agreed only to review the Plalnllffs file. By letter dated February 6, 1996, the Defendant Knauer expressed his surprise that Schmidt & Ronca was not represenllng the Plaintiff and enclosed a copy of the pellllon to withdraw as Plalnllffs counsel. Also, on February 6. 1996, the Defendant sent a letter to the Plaintiff enclosing a copy of Attorney Schmidt's letter, the pelltlon to withdraw as counsel, and a copy of the Defendant's letter to Gerard C. Kramer, Esquire. On February 7, 1996, the Defendant spoke with Attorney Schmidt who again Informed the Defendant that Schmidt & Ronca had never agreed to accept either the Plalnllffs or her son's case and that he felt that the Plalnllff did not have a case. On February 9, 1996, the Defendant received Attorney Schmidt's letter dated February 8, 1996, confirming the aforesaid conversation. Without prior nollce, on February 21, 1996, an employee from Schmidt & Ronca delivered the Plalnllffs file to the Defendants' office when the Defendant was out of the office. By letter dated February 21, 1996, the Defendant nollfled Attorney Schmidt thaI his office did not represent the Plaintiff and requested Attorney Schmidt send a messenger to the Defendants' office to pick up the - 5- Plalnllffs flIe. Allorney Schmidt's office did not send a measenger. On February 27,1996, the Defendant called the Plalnllff and requested that she pick up her file. The Defendant prepared a leller to the Plalnllff which contained an acknowledgment that she had picked up her file. The Plalnllff picked up her flIe on February 27,1996, and executed the acknowledgment of receipt of the flIe. A true and correct copy of said letter Is attached hereto as Exhibit "B" and Incorporated herein by reference thereto. On March 1, 1996, the Defendant received a copy of a letter to the Plaintiff from Scoll B. Cooper, Esquire, of Schmidt & Ronca which stated Inter e//a that: This Is a follow up to our telephone conversation on Wednesday, February 21, 1996. This Is to confirm that I have Informed you we returned your entire flIe to David Knauer's office. You told me that you no longer wish for him to represent you and that you will be picking up the flIe from his office and contacllng another allorney to represent you In your slip and fall accident. The Defendants could not withdraw their appearance as counsel for the Plalnllff until either another allorney entered their appearance or until they obtained an order of court. Based on the representallons of both the Plaintiff and Allorney Cooper, the Defendants waited for the Plaintiff to retain new counsel. After the Plaintiff failed to retain counsel, the Defendant flied his Motion to Withdraw as Plaintiffs Counsel on or about June 10, 1996, which the Honorable John C. Uhler granted on June 12, 1996. 24. Denied as alleged. The Defendants aver to the contrary that, after (easonable Investigation, they are without knowledge or Information sufficient to form a belief as to the truth of the Plalnllffs allegations except to the decision of Schmidt & Ronca not to undertake representation of the Plaintiff. - 6- 25. Denied as alleged, The Defendants aver to the contrary, that as to the Plaintiffs allegation that she had to represent herssl( In settling her claim against the condominium association, the Defendants are without knowledge or Information sufficient to form a belief as to the lrulh of the Plaintiffs allegations, The Defendants had obtained service on the Defendants Verlyn K. Souders, Della M, Souders and Colonial View Condominium Associates, Those Defendants had Insurance coverage that would have been sufficient to provide coverage for the Plaintiffs InJuries, If the Plaintiff settled her case for $1 O,QOO with the Defendant Colonial View Condominium Associates, who had assumed defense of her case from the Defendants Souders pursuant to a contractual arrangement, that was a tactical decision she made, With respect to the Defendants Herold Mowery and Keith Pfeiffer, the Sheriff of York County had never been able to serve the Defendant Pfeiffer but did obtain service on a Harold Mowery, However, the Individual served was not the Defendant of the same name. The Harold Mowery served ultimately obtained a summary ,'udgment In his favor, However, the Insurance available through Colonial View Condominium Associates was sufficient to pay any anticipated settlement or verdict which the Defendant so Informed the Plaintiff by telephone. 26. ,Denied as alleged. The Defendants aver to the contrary that, as hereinbefore set forth, the Defendant Knauer attempted to contact the Plaintiff on several occasions. However, the Plaintiff failed to return the said Defendant's telephone calls. The Plaintiff chose to terminate the Defendants' representation, and she informed the Defendants that she had retained Attorney Ronca as replacement counsel. Ultimately, Attorney Ronca's firm .7. letter deted November 27, 1996, states. The Plaintiff settled her csse on her own because she wanted to avoid attorney's fees and because of her financial situation at tile time she accepted the settlement not because of the professional services of the Defendants. 27-30. Denied as alleged. The Defendants aver to the contrary that paragraphs 27-30 Inclusive of the Plaintiffs Complaint are concll/slons of law to which no reply Is required pursuant to the Pennsylvania Rules of Civil Procedure and strict proof lhereof Is demanded at time of trial. 31. Admitted. 32. Denied as alleged. The Defendants aver to the contrary that Paragraph 32 of the Plaintiffs Complaint Is a conclusion of law to which no reply Is required pursuant to the Pennsylvania Rules of Civil Procedure and strict proof thereof Is demanded at time of trial. WHEREFORE, the Defendants demand Judgment In their favor and against the Plaintiff on Count I of the Plaintiffs Complaint. COUNT II 33. The Defendants Incorporate herein by reference thereto Paragraphs 1-32 of the within Answer as If more fully set forth herein by referenoe thereto. 34-35. Denied as alleged. The Defendants aver to the contrary that Paragraphs 34-35 of the Plaintiffs Complaint are conclusions of law to which no reply Is required pursuant to the Pennsylvania Rules of Civil Procedure and strict proof thereof Is demanded at time of trial. WHEREFORE, the Defendants demand judgment In their favor and against the Plaintiff on Count II of the Plaintiffs Complaint. - 9 - NEW MATTER 36. The Defendants Incorporate by raference thereto Paragraphs 1-35 of the within Answar as If more fully set forth herein by reference thereto. 37. By letter dated January 4, 1995, on which the Plaintiff was copied, the Defendant Informad Dr. Eslinger that he anticipated that the case would be concluded within one to two years. 36. By letter dated June 22, 1995, the Defendants Informed the Plaintiff that her case would be listed for trial In the spring or early summer of 1996 and called to her attention that she had not retained the Defendants until shortly before the expiration of the statute of IImltallons and that the case was progressing on the time table of 1-1/2 to 2-1/2 years as the Defendant had Informed the Plalnllff prior to the execution of the Contingent Fee Agreement. Further, the Defendant Informed the Plaintiff Itlat, If she wished to have another attorney handle her case, the Defendants would wish her well. 39. After the Defendants received the Plaintiffs letter dated November 22, 1995, the Defendant unsuccessfully attempted to reach the Plaintiff by telephone several times, and she failed to return the Defendant's telephone calls. 40. The Plaintiff had Informed the Defendants that she had retained James R. Ronca, Esquire, of Schmidt & Ronca to represent her. 41. The Plaintiff picked up her file from the Defendants' office. 42. The Defendants, as aforesaid, relied on the representations of the Plaintiff and Attorney Ronca that he and his firm would be assuming responsibility for the Plaintiffs case. - 10- 43. Based on the representallons of Allorney Ronca and the Plalnllff, the Defendants prepared and provided a detailed suit reporUleller to Attorney Ronca dated December 13, 1995, setllng forth the Defendant's analysis of the Plaintiffs case with enclosures os set forth In Paragraph No. 23 above. 44. The Defendants assumed that Allorney Ronca had executed the Praecipe for Entry of Appearance and was representing the Plaintiff until the Defendant received Attorney Schmidt's letter dated February 2, 1996. 45. The Defendant sent a letter to the Plalnllff dated February 6, 1996, enclosing, Inter alIa, Attorney Schmidt's aforesaid leller. , 46. The Defendant provided the Plalnllff a copy of his letter to Attorney Schmidt dated February 6, 1996, set forth In Paragraph No. 23 of the within Answer. 47. The Defendant contacted the Plalnllff on February 21, 1996, to Inform her that Schmidt & Ronca had returned her file to his office and requested that she pick up the file. 48. The Plaintiff picked up her file and executed the acknowledgment of receipt of her file. 49. By letter dated June 5, 1996, the Plaintiff Informed the Honorable Emanuel A. Casslmalls that she would not retain any lawyer to represent her. 50. The Plaintiff did not say she could not retain counsel 51. The Plaintiff made a conscious decision not to retain counsel but decided to negotiate a settlement of her case without employing an allorney so that she would not have to pay any attorney's fee. . 11 - 52. The Plaintiffs decision to sellle her case on her own was a tocllcal decision she made. 53. The Plalnllffs decision to settle her own case without the use of on attorney allowed the Plalnllff to keep the enllre $10,000 without payment of any allorney's fees. 54. If the Plaintiff had not terminated their representallon, the Defendants would not have settled the case as the Plalnllff settled the case. 55. If the Defendants would have represented the Plaintiff and had taken a settlement, they would have sellled the Plaintiffs case with the sellllng party and taken an assignment of any claims that the settling party might have. 56. The reason Schmidt & Ronca decided not to take the Plalnllffs case was not because of any of the work the Defendants had or had not done but because they felt the Plalnllff did not have a case on which they could succeed. 57. The After receipt of the January 4, 1995 letter of the Defendant to Dr. Paul J. Eslinger, the Plalnllff was aware that the Defendant's esllmate for conclusion of the case was between one and two years from the date of thatlelltJr which would have placed the case conclusion for between January of 1996 and January of 1997. 58. The Defendant In his leller of June 25, 1998 leller to the Plalnllff Informed her that her case would be settled or tried In the spring to early summer of 1996. 59. The Defendant's timetable given In ,January 1996 to Dr. Eslinger was the same lime period he provided to the Plalnllff by his letter dated June 25, 1995 to the Plalnllff. 60. The Defendant In his leller of June 25, 1995 to the Plalnllff offered her the opllon of discharging the Defendant so that she could retain another allorney. - 12- 61. The Plalnllffs underlying case was proceeding on the esllmated lime table as set forth In the January 4, 1995 letter to Dr. Eslinger and the June 25, 1995 letter to the Plaintiff. 62. The Defendants did not abandon the Plalnllffs case which was proceeding on a time table which had been provided to the Plalnllff. 63. The Plalnllff decided to exercise the option 10 discharge the Defendants set forth In the Defendant's letter of June 25, 1995 to her. 64. Prior to discharging the Defendant, the Plaintiff had Informed the Defendants that she had retained the services of the firm of Schmidt & Ronca. 65. After the Plalnllff discharged the Defendants, they could not have been responsible for any developments especially case evaluallon and selllement. 66. The Plaintiff was aware that the Defendant was proceeding on the aforesaid timetable and had not abandoned her case. 67. The Plalnllff also was contending that she was having Increasing physical problems that were not fully quantified and the Defendant had Informed her that before a settlement demand could be made or the case ,listed for trial that a quantification of her Injuries would be needed because once a case Is settled or tried the Plaintiff would not have had a second chance to recover for any Injuries not diagnosed or quanllfled. 68. The Plaintiff chose to Ignore tile Defendant's advise and setlled the case on her own thereby causing her own damages. 69. The Plalnllffs setllement of her own case without an attorney estoppes her from claiming that the Defendant caused her any loss because she chose to Ignore the Defendant's advise and terminated his representation of her. h - 13 - James R. Ronca, Esquire Deborah Graham 2 December 13, 1995 Tenant of the Defendants'Souders The Defendants Souders were Initl,llly represented by McNees, Wallace & Nurlck. However, Kurl R. HlldabralllJ, Esquire, of Mentzger, VVlcI,ersham, Knauss & Erb has taken over the case. Colonial View Condominium Associates Is represented by I-farvey Freedenberg, Esqull'e, and Carol A. StelnOllr, Esquire, of McNees, Wallace & Nurlck. '~lchard C. Snelbaker, Esquire, of Snelbaker & Brenneman represents the Defendant Mowery. The Defendants Souders joined Colonial View Condominium Associates as an additional defendant on the theory that the property owner's association was responsible for snow removal. We were not able to obtain service over the Defendants Mowery or Pfieffer. Ultimately, the Cumberland County Sheriff was able to serve Senator Mowery. However, the Court granted the Defendant Mowery's motion for summary Judgment. The Interrogatories remain unanswered. Ms. Graham had provided me the Information to answer the Interrogatories but I did not file same. With you assuming responsibility for the case, you may have a different approach, and I did not want to constrict you decisions on how the Interrogatories should be answered. As to liability, the property owners' association had assumed responsibility for snow removal and had contracted with an individual or business organization to shovel the side walks. During the night of March 22-23, 1992, snow had f,lllen. When Ms. Graham attempted to leave her unit early In the morning, the contractor had not yet shoveled her porch step and sidewalk. Ms. Graham fell and suffered the injuries which form the basis of her action. Our office has been successful in snow slip and falls where there is a contractual assumption of the responsibility for snow removal. In this case, that is the only basis for overcoming the hills and ridges doctrine In light of the fact that snow had fallen overnight and Ms. Graham left her unit early in the morning. With regard to damages, the issue will be whether Ms. Graham's fall could have caused or aggravated her temporomandibular Joint dysfunction. Dr. Robert j. Beaudry, Jr. is Ms Graham's treating oral surgeon. Although I have not had a TMJ case with Mentzger, Wickersham, Knauss & Erb, I anticipate that they would use Dr. John Zeleznock, a York oral surgeon, as their expert. McNees, Wallace and Nurlck utilized Dr. Ronald Niklaus as their expert in a case we settled earlier this year. I am unsure whether you have ever had Dr. Nlklaus as a defense expert, and I will discuss my experience with him. Dr. Niklaus has performed independent medical examinations on several of my clients although he has never testified. Although I have not cross-examined him, I have attended his independent medical examination of my clients. In addition to the standard examination, Dr. Niklaus had my clients remove their shoes, stand and close their eyes, and 'Nalk without their shoes. Apparently, he believes JamC5 It Ronca, Esqulm I Decl?IlIber 13, 19\15 that walking wllhout shocs 15 somehow rl!l,lll.'d to TMJ. Dr. J. Joseph Danyo, my orthopedic expert In that case, opined Ihalthat 15 olnllrlhopedlc Ipst and uSl?If!sS for diagnosis of TMJ. To ,mke Ms. Graham an effectlvc witness, you will have to work extensively with her, Although you and I know hl!r, a jur}' will /lot h,lVl! the lime to form 01 positive opinion of her, and you will need 10 soften her persona. 1,Im concorned that she will project a hard personality that might ;lllonate a Jury. Ollt! of llil! good things ilUOUt Ms. Craham Is th,lt she Is Intelligent, understandslhe S\'stelll, .11HI will appr('c1ate the need to follow your Instructions. The defense counsel are Harvey Freedenberg, Esquire, and Kal'i Hildebrand, Esquire. Although Mr. Freedenberg evaluatp.s cases conservatively, he Is reasonable. I have never tried a case against Mr. Hildebrand. Nevertheless, from my 11m lied eXpOSlJre to him and other members of his firm, I assume he likewise will be reasonable In settlement negotiations. I do strongly feel thai this case should be sellled as opposed to submitting It to a Jury. Taking Into consideration the Inc:reaslng conservatism of Juries at this time, the facts, and the law applicable to this case, I believe it Is a 60:40 case If It goes to trial. I also could see a compromise on damages If a jury became deadlocked. On an administrative matter, Ms. Graham obtained a report from Dr. Thomas Trautman who performed a neuropsychological examination of Ms. Graham. She submitted the bill to her health and ,lCcldent carrier and received a check. However, she failed to remit the check to Dr. Trautman. She had no defense to his claim, and Dr. Trautman obtained a district justice judgment in his favor. Dr. Trautman has agreed to walt until a settlement or verdict for.his money. I Issued a protection leller to his attorney and enclose herewith a copy of my letter Informing him I can no longer protect his judgment. Also, kindly Include our advanced costs on this case on your account. Of course, recovery of those costs are contingent upon a settlement or a Plaintiff's judgment. As to Ezekiel Graham's case, It arose out of a sledding accident. The leased condominium unit Is adjacent to the Pennsylvania Turnpike. The contour of the rear of the development slops downward toward the right of way and the highway. Although I did not measure the distance from the fence to the road, I would estimate that It is approxlmalely 100 feet. Ezekiel was sledding down the hill toward the fence and was unable to control his sled. He ran Into the fence and caught his foot breaking his leg. Liability should rest on the Turnpike because of the contour of the land, the proximity of residential units, and the type of fence utilized. Inslead of utilizing a snow fence that would absorb the Impact of a sled, the Turnpike installed a wire fence with large squares. I assume the Turnpike will defend on the basis of foreseeability. However, I would not be surprised to find an Internal memorandum relating the decision on the type of fence used to a cost-benefit consideration. HEI.TIII:;'P IIJN '11996 DEBORAH L. (,'RAHANl tH.1I1'A rNJ'; nil/VB MI';C/lAN/('SIIU/W, I'A J 7O!i!i (717) 7,J(j,MJ8 Judge Bmnnual A. Cn~slmRti~ Acting prouidont Judge York County Courthouu8 20 B. Market Stroot York, Ph 17401 ,11J no 5 / 1996 UPS 0994 4014 470 ReI Granam v, SouJoru & CQ10ninl View Et. al. Civil Action No. 94 SU 1101 01 Honorable Judge CassimatlS1 I am the Plaintiff in the above reforenced matter and upon reviewing the Prothonotary / s file documents on ~'riday, May 31, 1996, r discovered that David W. Knauer, Esquire hus filed a Motion '1'0 Withdr.aw As Plaintiff / s Counsel Idth the Prothonotary dated February 7, 1996 whereby pursuant to York County Local Rule 30 he . failed to notify me. It. also appears that this Motion was not presented to the Motions' Judge during the bus iness sessions since no Order has been signed or issued on the matter as outlined in Local Rule 34 to the best of my knowledge. Mr. Knauer has not been representing me since approximately February 23, 1996 when r picked up the file from his office and r have no objection to his withdrawal as counsel. I telephoned Mr. Knauer's office yesterday, Tuesday, June 4, 1996 and spoke with his secretary, Andrea requesting I a. A photocopy of the letter r signed when he relecsed the file to me so that r could forward a copy to you; and b. A response from him as to what he intended to do regarding his withdrawal as Plaintiff's counsel; however, he has not responded to my request via fax, letter or by telephone, It also appears that Mr. Knauer has not responded to Defendant, Colonial View Association's, Answer to New Matter which was filed on December 19, 1996 and since that time defense counsel has also filed a Motion to Compel Discovery dated May 22, 1996 in order to move this case forward. I have attached copies of the following Motions I obtained from the Prothonotary's Office for your review. EXHIBIT I D .' , " " ., 1:' c , ',,'." ,~') '-:; CJ \ I r .-1 . r\~q ) " '. ,~ "") :Il' , , It 'IJ ~,) I I ,.J! ) ;") . '-i.n 1. . I I ",'1 . ',.- ." '_~U .1 '..", tl jl ., , " " " .. atdct proof thereof at the trial of thia cauae. It ia apecHically denied that Mr. Ronca had executed a praecipe for entry of appearance and was representing Plaintiff. ,15. Denied. Plaintiff specifically denies receiving a letter from Defendant dated February 6, 1996 enclosing a letter from Attorney Schmidt. Plaintiff, after reasonable investigation, is unable to determine the truth or veracity of the averment and therefore demands strict proof thereof at the trial of this cause. 46. Denied. Plaintiff, after reasonable investigation, is unable to determine the ~ruth or veracity of the averment of Paragraph 46 and therefore denies the same and demands strict proof thereof at the trial of this cause. Plaintiff specifically avers that she was not provided a copy of this letter by Defendant at the time alleged in the New Matter of the Defendant. 47. Denied. It is denied that Defendant contacted the Plaintiff to inform her that Schmidt & Ronca had returned her file to his office and request that she pick up the file. On the contrary, Plaintiff called Defendant after Plaintiff had talked to Mr. Ronca's office. 48. Admitted. It is admitted that Plaintiff picked up what Defendant contended was Plaintiff's file and executed an acknowledgement of receipt of the file. 49. Admitted in part I denied in part. It is admitted that Plaintiff sent a letter dated June 5, 1996 to the Honorable Emanuel A. Cassimatis. To the. extent that Defendant seeks to characterize the contents of the letter, the characterization is denied. The letter is a written document and will speak for itself. - 3- 50. Denied, 'rhe IlV'Hment oj' 1'1Irll~Jnlph 50 is a double negative and as such in incomprehensiblo. It, tlNrotore, i,3 denied and strict proof thereof is r.lemanded at the trial of this cause. 51. Denied. rt is denied that Plaintiff made a conscious decision not to retain counsel but decided to negotiate a settlement of her case without employing an attorney so that she would not have to pay any attorneys' fees. On the contrary, Plaintiff actively sought counsel to represent her in this matter but was rebuffed becauae no counsel was willing to undertake her representation because of the manner in which Defendant had handled the file for the Plaintiff. 52. Denied. );t is denied that Plaintiff's decision to settle the case on her own was a tactile decis~on she made. On the contrary, Plaintiff was forced to settle the case because of the conduct of Defendant in the prosecution of her case and the abandonment of the Plaintiff by the Defendant. 53. Admitted in part; denied in part. rt is admitted that Plaintiff settled the claim for the sum of $11 / 500. It is denied that Plaintiff's decision to settle her own case without the use of an attorney did not subject her to attorney's fees. On the contrary, Plaintiff being forced to accept the settlement of $11,500 was a direct and proximate result of the conduct of the Defendant. 54. Denied. Plaintiff, after reasonable investigation, is unable to determine the truth or veracity of the self-se.rving averment and therefore 'demands strict proof thereof at the trial of this cause. 55. Denied. The averment of Paragraph 55 is pure speculation on' the part of the Defendants made after the fact and as such is self- -4- serving, To the extent that this constitutes a factual averment, Plftintiff states that after reasonable investigation she is unable to determine the truth 01.' veracity of the averment and therefol'e demsnda strict proof thereof at the trial of this eaune. 56. Denied. It is denied that the reason Schmidt & Ronca decided not to tal(e Plaint.iff's case was because they felt Plaintiff did not have a case in which they could succeed, rac'her they were concerned that the conduct of Defendants in the prosecution of Plaintiff's case had placed them in an untenable position which would not permit the Plaintiff to make a sufficient recovery. This was in part caused by the fact that Defendant (1) left the case linger for too long to develop, (2) failed to answer discovery requests and (3) had prepared an ineffective and incomplete complaint. 57. Denied. To the extent that Paragraph 57 attempts to aver facts it is incomprehensible and therefore is denied. Plaintiff demands strict proof thereof at the trial of this cause. 58. Denied. To the extent that the Defendant seeks to characterize the letter of June 25, 1996, such characterization is denied and the letter will speak for itself. By way of further pleading, Plaintiff avers that Defendant never responded to any telephone calls from Plaintiff in almost a year or more and therefore Defendant was unwilling to discuss or unable to discuss Plaintiff's claim with Plaintiff. 59. Denied. To the extent that Defendant shared information with Dr. Eslinger and not with his client, Defendant was further negligent in not informing the client.Furth~rmore, Defendant's .. 5.. caes, On the contrary, Pef.endanta were nonreapone i ve to the caae, court and all other parties. 67. Denied. 'l'he averments of paragraph 67 are denied inaofar all they relate to communications between Plaintiff and Defendant. 'l'here was no cOnlm\ll1ication between them despite frequent attempts by the Plaintiff to communicate with the Defendant. 68. Denied. It ia denied that Plaintiff chose to ignore Defendant's advice. On the contrary, Defendant furnished no advice. 'l'o the extent that the remaining averments, are matedal, they constitute conclusions of law to which no response is required. 69. Denied. 'l'he averments of Paragraph 69 state a conclusion of law to which no reaponae is required. It is ap,ecifically denied that Defendant Eurniahed Plaintiff with ,any advice. 70. Denied. The averments of Paragraph 70 constitute a conclusion of law to which no reaponse ip required. 71. Denied. The averments of Paragraph 71 state a conclualon of law to which no response is required. 72. Admitted. 73. Admitted. 74. Admitted. 75. Denied. The averments of Paragraph 75 constitute a conclusion of law to which no response is required. To the extent that she would receive a settlement or verdict lower than if she retained a subsequent attorney, Plaintiff, after reasonable investigation, is unable to admit the truth or veracity of the averment and demands strict proof thereof at the trial of this cause. -7- I' ,", , I ('\ " (.) i__) J\ . . I , ", , "1 'i , , , I 1 ;1 ,tJ I (') I ~ \' \ :. ) tn , .. :t\ d~ ('tj ~-r.' ..,(~ "