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16. The collision and lilloI' hercinaticr mcntioncd Iqjuries and damages sustaincd
by thc Plaintiff Sharon Lynn Hurlcy, lIrc thc dircct result of the clIrelessncss, recklcss and
negligence of the Dcfendant Timothy Bcining as more particularly describcd as follows:
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(a)
In failing to stop thc vehicle hc was opcrating bcfore colliding with the
vehicle drivcn by Dennis Hurley;
(b) In failing to keep alert and to maintain a proper lookout for the presence of
other motor vehicles, more spcciflcally the vehicle operated by Dennis
Hurley and in which Sharon Hurley was a passenger;
(c) In failing to keep adequate and .proper control over his vehicle to avoid
contact with the automobile driven by the Plaintiff Dennis Hurley and
occupied by Sharon Hurley;
(d) In operating his vehicle in a reckless manner and with careless disregard lor
the rights or safety of others and in operating his vehicle in a manner
endangering persons and property in violation of the Motor Vehicle Code
of the Commonwealth of Pennsylvania, specifically 75 Pa, C,S.A, ~3736.
4
21, Thc Dcfendant Timothy Wayne Rcining's action in driving whilc intoxlcatcd
constitutc outragcous and wanton conduct and as such givc rise to punitivc damagcs to be assesscd
against the Dcfcndant Timothy Waync Reining,
22, Thc Defendant Timothy Wayne Reining bccause of his intoxication was
unablc to properly control his vehicle or apply the brakcs in an appropriate fashion,
23. Following the crash the Dcfendant Timothy Wayne Reining attempted to l1ee
from the scene,
24, The Defendant Timothy Wayne Reining pled guilty to driving under the
Inl1uence of alcohol in the Court of Common Pleas of Cumberland County, thus demonstrating
his intoxication.
25. The force and impact of the collision as caused by the negligencc and
outrageous conduct of the Defendant Timothy Wayne Bei/ling caused serious injury to thc Plaintiff
Sharon Lynn Hurley,
26, The Plaintiff Sharon Lynn Hurley suffered the following injuries as a rcsult
of the negligcnce of the Defendant:
6
(a) Persistent and eontinuous back pain;
(b) A grealer susceptibility to neck and back injury;
(c) Acceleration of degenerarive changes in her spine;
(d) Limitation in her range of motion; and
(e) Headaches,
27. By reason of the Plainliff Sharon Hurley's injuries sel forth above she has
received medical and chiropractic care, and may in the future be required to receive said care to
recover from the injuries she suffered in this crash,
28, As a result of the negligence and gross conduct of the Defendant Timothy
Wayne Beining as described herein, the Plaintiff Shawn Hurley has suffered and will continue to
suffer mental and physical pain, great difficulty in carrying out and engaging in life's activities,
a loss of life's pleasures and enjoyment, humiliation and embarrassment.
7
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UlI1JIALIII I. aMml, "QUINl
'e. IUp~'" Cou~t I,D. No. 58874
1UIn10LD. , IIAVAI
A '~ofeaa!on.l Co~o~et!on
101 UMI Itw_t
.oat Off!oe lox 832
Ne~~!abu~g, 'ennaylvan!e 17108-0832
TelephoMlI
r.XI
I-Nail I
[7171 238-3200
[7171 23'-1883
~eyheveepb . net
Atto~ney for Defendant:
SIlARON LYNN IlURLEY AND
DENNIS E. HURLEY, HER HUSBAND,
PLAINTIFFS,
IN 'l'HE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
TIMOTHY WAYNE BEINING AND
ETHEL M.' SMITH,
DEFENDANTS.
DOCKET NO. 97 CIVIL 6789
:
: JURY TRIAL DEMANDED
QIlEHD~tS' PRELIMINARX-OBJECTIONS
~o PL~INTIFFS' COMPLAI~
AND NOW, oomes Defendants, Timothy Wayne Beining and
Ethel M. Smith (hereinafter referred to collectively as "Mr.
8e1ning'), and file Preliminary Objections to Plaintiffs'
Complaint and aver the following:
1. This personal injury action arises out of a motor
vehiole accident which took place on December 22, 1995.
2. In their Complaint, Plaintiffs, Sharon Lynn Hurley
and Dennis Hurley ("Plaintiffs'), contend Mr. Beining was
nogligent in the operation of his motor vehicle, thereby causing
injuries to Plaintiffs. A copy of Plaintiffs' Complaint is
attached here to as Exhibit "A.'
I. PRBLIMINARY OBJBCTION IN THB NATURB O~ A MOTION TO STRIKB
PURSUANT TO PA. R.C.P. l028(al(2l (INCLUSION OF SCANDALOUS
AND IMPBRTINBNT MATTERl.
3. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
4. To be considered scandalous and impertinent, a
complaint's allegations must be immaterial and inappropriate to
the proof of the cause of action. Commonwealth Department of
Transportation v. Upper Providence, ___ Pa. Cornrow. ___, 423 A.2d
769 (1980).
5. In paragraph 13 of their Complaint, Plaintiffs
contend that following the impact, Mr. Beining "tried to flee the
scene. "
6. Plaintiffs' allegations that Mr. Beining "tried to
flee the scene" a~e !.mmaterial and inappropriate to prove their
cause of action of negligence.
7. Accordingly, Plaintiffs' allegations that Mr.
Beining "tried to flee the scene" are impertinent and scandalous
and should be stricken from the Complaint.
WHEREFORE, Defendants, Timothy Wayne Beining and Ethel
M. Smith, request this Honorable Court for an Order striking
paragraph 13 from Plaintiffs' Complaint.
- 2 -
II. PRBLIMINARY OBJBCTION IN THE NATURB or A MOTION TO STRIKB
PARAGRAPHS 11 AND 12 or PLAINTIrrs' COMPLAINT WlIICH SBTS
rORTH A CLAIM rOR MENTAL AND EMOTIONAL DISTRESS.
8. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
9. paragraphs 11 and 12 of Plaintiffs' Complaint set
forth the following:
11. Dennis James Hurley suffered a head
injury which caused immediate emotional
anguish to his mother and also caused her
significant emotional distress.
12. Plaintiffs' other son Adam Hurley
was also in th~ car at the time of the crash
and the Plaintiff Sharon Hurley was Q"eatly
concerned that Adam was injured.
10. The foregoing paragraphs set forth a claim for
negligent infliction of emotional distress. It is well settled
that in order for a plaintiff to state a cause of action for
negligent infliction of emotional distress, the plaintiff must be
located at or near the scene of the occurrence, plaintiff must
have suffered severe mental distress as a result of
contemporaneously observing the occurrence, and the plaintiff
must be closely related to the injured party. Sinn v. Burd, 486
Pa. 146, 404 A.2d 672 (1979).
11. Furthermore, a plaintiff may not recover damages
for negligent infliction of emotional distress in the absence of
any attendant physical injury. Rolla v. Westmoreland Health
system, ___ Pa. super.
, 651 A.2d 160 (1994).
- 3 -
12/24/91 WED 08:42 FA! 114 2113
STATE FARM CLAllI
121008
10. At the momelll of Impact the Plaintiff Sharon Hurley WI5 subjected to
significant force which caused iIijury to her spine. At the time of the crash the Plaintiffs' son
Dennis James Hurley wu in the car,
11. Dennis James Hurley suffered a head injury which caused Immediate
emotil1nal anguish 10 his mother and also caused her significant emotional distress.
12. Plaintiffs' other son Adam Hurley was also in the tar at tha time of the crash
and the Plaintiff Sharon Hurley was greally concerned thaI Adam was injured.
13_ At the time of the crash the: Defendant Timothy Beining's blood alcohol wu
over 2 limes the legal limit (i.e. ,22%), Following the impactlhe Defendant Timothy Beining
tried to flee the scene.
14. After his anempt failed the Defendant Timothy Beining spoke to Dennis
Hurley ar which time It appeared that he was clearly inloxicated.
COUNT I
Sharon Lynn Hurley v. Timothy Wayne Belnina
15. Paragraphs 1.14 are incorporated herein by referelltC thereto.
3
12/2~/97 WED 08:~2 FAX 77~ 2113
STATE FARII CLAIM
IaJ008
16. The coUision and all ofhereinwr lIIClItloned Iqjuries and damages suslllined
by Ihe Plaintiff Sharon Lynn Hurley, are tile direct result of lhe carelessllCu, reckless and
negligence of the Defendant Timothy Beining as more particularly described as follows:
(8) In faillnglO SlOp the vehicle he was operating before colliding with the
vehicle driven by Dennis Hurley;
(b) In failins to keep alert and 10 maintain a proper lookout for the presence of
other motor vehicles. more specifically the vehicle operated by Dennis
Hurley and in which Sharon Hul'ley was a passenger;
(c) In failing to keep adequate and proper control over his vehicle 10 avoid
contact with the automobile driven by the Plaintiff Dennis Hurley and
occupied by Sharon Hurley;
(d) In operating his vehicle in a r~klcss manner and with careless disregard for
the riihts or safel}' of others and in operating his vehicle in a manner
endangering persons and propeny in violation of the Motor Vehicle Code
of the Commonwealth of Pennsylvania, specifically 75 Pa. C,S.A. S3736.
4
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12/24/87 WED OS:43 fAX 774 2113
STATE fARII CLAIII
1ai0ll
21, Thl: Defendant Timothy WaYM Belning's acrlon in driving while intoxicated
constitute outrageous and wanton conduct and as such give rise lO punitive damages to be IIlIse5sed
against the Defendant Timothy Wayne Beining.
22, The Defendant Timothy Wayne Beining because of his intoxication was
unable [0 properly control his vehicle or apply the braJces In an appropriate fashion.
23, Following the crasb the Defendant Timothy Wayne Beining attempted to flee
from the scene.
24. The Defendant Timothy Wayne Belning pled guilty to driving wuler !he
influence of alcohol in the Court of Common Pleas of Cumberland County, thus demonstrating
his intoxication.
2S, The force and impacr of rhe collision as caused by the negligence and
outrageous conducr of the Defendant Timothy Wayne Beining caused serious ifliury to the Plaintiff
Sharon Lynn Hurley.
26. The Plaintiff Sharon Lynn Hurley suffered the following injuries as a result
of the negllgence of the Defendant:
6
12/2~/g7 WED 08:~~ FAX 71~ ~113
IaJ015
STATE FARM CLAIM
38. Upon information and belief, and as may be revealed by discovery, the
Defendant Timolhy Wayne Belnlng was at or about the business of his principal Ethel M. Smith
at the rime of the crash.
39. Because the Defendant Ethel M. Smith eitber negligently enrrusted her
automobile to the Defllndant Timothy Wayne Beining or was the principal for Timothy W. Beinlng
at the rime of the crash, she is liable to the Plaintiff Sharon Lynn Hmley.
WHEREFORE. the Plaintiff Sharon Hmley demands judgment against tile
Defendant Ethel M. Smith in an amount in excess of the compulsory arbitration limits of
Cumberland Counly, together with interest, delay damages if applicable. punitive damages and
costs of suit.
COUNT In
Dennis E. Hurley v. TImothy Wayne Belnlne and Ethel M. Smith
40. Paragraphs 1-39 arc incorporated herein b,y reference thereto.
41. The Plaintiff Sharon Lynn Hmley is married to the Plaintiff Dennis E.
Hurley and was so at the time of the crash described above.
10
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",-III:
10, At the moment of impuet the Pluintiff Shurun Hurley wus su~jected to
signifieantlorce which cuused injury to her spine, At the time of the crush the Pluintill's' son Dennis
Jamcs Hurley was in the car.
II. Dennis Jalllcs Ilurley suffercd u heud injury which caused immediate
emotional anguish to his mother und ulso caused hcr significant emotional distress,
12. Sharon Hurley, bccuuse she contcmporancously experienccd and observed the
injury to her son Dennis, suffered II hClldache because of thc signilicunt cmotional distress.
13. At the time ofthc crush the Delendant Timothy 13cining's blood alcohol was
ovcr 2 timcs thc legal limit (i.e. .22%), Following the impact the Delendant Timothy Beining tried
to flee the sccne, thus demonstruting Defcndant Bcining's reckless and outrageous conduct. S~
Kairumanov v. LaFalle, 1587 Civil 1996, Monroc County, Judge O'Brien, December 12, 1997.
14. After his attempt lailed thc Defendant Timothy Seining spC''<e to Dennis
Hurley at which time it appearcd thut he was c1eurly intoxicated.
3
(d) In operating his vehicle inn reekless manner and with careless disregard tor
the rights or safety of others and in uprn'uting his vehicle in u manner
endungcring persons and property in violution ofthc Motor Vehiclc Codc of
the Commonweulth of Pennsylvuniu. spccilicully 75 I'u, C,S,A. *3736.
(e) In tuiling to properly and quickly apply his brakcs to prevent his vchiclc from
colliding with thc rear of thc vehicl\1 drivcn bc thc Plaintiff Dcnnis Hurlcy
and occupicd by Shuron Hurley,
(I) In operating a vehiclc whilc undcr thc inlluencc of alcohol
17. Shortly bctilre thc timc ofthc crush the Defendant Timothy Wayne Bcining
drank alcohol.
18, Thc Detcndant Timothy Wayne Bcining knew or should havc known that it
was iIIcgal to OpoefUtC u motor vehiclc allcr drinking alcohol to thc point whcrc hc becamc
intoxicatcd,
19, The Dcfcndant Timothy Wayne Bcining bccame intoxicated from this
drinking episode and was legally intoxicated at the timc of thc Cl'ash,
5
41. Thc Pluinlill'Sharon Lynn/lurlcy is marricd to thc Plaintill' Dcnnis E. Ilurlcy
und wus so IItthc timc of thc crush dcscribcd abovc,
42, Thc Plaintifls Sharon Lynn Ilurlcy und Dcnnis E, Ilurlcy huvc rcsidcd
togcthcr sincc bcforc und uncr thc crush dcscribcd abovc.
43. By rcnsonofthc uforcsuid injurics to his wile, Dcnnis E, Ilurlcy hus bccn und
will in thc futurc bc dcprivcd ofthc ussistuncc, socicty und companionship of his wile.
WIIElmFORE, thc Plaintiff Dcnnis E. Hurlcy dcmands judgmcnt uguinst thc
Dcfendants Timothy Waync Bcining und Ethcl M, Smith in an lImount in cxccss of the compulsory
arbitration limits of Cumbcrland County, togcthcr with intcrcst, dcluy dumagcs if applicable,
punitive damagcs and costs of suit.
Rcspcctfully submitted;
Datc: -k~ I '-k-m,~-.-
Robcrt !" Claruvnl, Esq.
125 Locust Street
P.O, Box 11933
lIurrisburg, PA 17108-1933
(717) 233-4780
Attorney I.D, 1119222
Attorncy for I'luinti ff~
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form a belief as to the truth of the averments of this paragraph
and they are, therefore, denied.
2. Admitted.
3. Admitted.
4. Denied.
5. Denied.
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Donied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
COUNT I
Sharon Lynn Hurley v. Timothy wayne Beininq
15. The answers contained in paragraphs 1 through 14
inclusive hereof are incorporated by reference herein as if set
for.th in their entirety.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
- 2 -
21. Denied.
22. Denied.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
29. Denied.
30. Denied.
31. Denied.
32. Denied.
33. Denied.
34. Denied.
WHEREFORE, Defendants, Timothy Wayne Beining and Ethel
M. Smith, respectfully demand judgment in their favor and against
Plaintiffs, Sharon Lynn Hurley and Dennis E. Hurley, with costs
assessed to Plaintiffs.
COUNT II
Sharon Lynn Hurley v. Ethel M. smith
35. The answers contained in Paragraphs 1 through 34
inclusive hereof are incorporated by reference herein as if set
forth in their entirety.
36. Denied.
37. Denied.
- 3 -
, ~
46. The subject collision and Plaintiff's alleged
damages and/or injuries, if any, were sololy, directly and
proximately caused by Plaintiffs' own negligent, reckless, and/or
careless conduct.
47. Plaintiffs' claims, if any, are barred by the
doctrines of contributory and comparative negligence and
aSDumptipn of the risk.
48. Plaintiffs havo failed to state a claim upon which
relief can be granted.
49. Plaintiffs' claims, if any, are barred by their
failure to mitigate their damages.
50. At all times relevant hereto, Defendants were
responding appropriately under the circumstances then existing to
a sudden emergency.
51. It is specifically denied that the alleged conduct
of Defendants was reckless, outrageous or in any other way done
with evil motive and/or intent.
52. Plaintiffs have tailed to state any claim for
punitive damages.
53. Plaintiffs are precluded from pleading,
introducing into evidence, or recovering any and all monies
payable as "required benefits" pursuant to the Pennsylvania Motor
Vehicle Financial Responsibility Law, Act of February 12, 1984,
75 Pa. Cons. stat. S1701 et ~.
- 5 -
VERIPICATION
I, BARRY A. KRONTHAL, have read the foregoing Answer
with New Matter to Plaintiffs' Complaint. The factual statements
contained therein are true and correct to the best of my knowledge,
information and belifllf. I am authorized to make this Verifioation
on behalf of my cliente, Timothy Wayne Beining ann Ethel M. Smith.
This Verification is made subject to the penalties of 18
Pa.C.S.A. Section 4904, relating to unsworn falsification to
authorities, which provides I knowingly make false
averments, I may be 1 penalties.
KRONTHAL, ESQUIRE
DATE: 7/1v(tiS
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