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NOTICE TO PLEAD
MEDNICK, MEZYK & KREDO, P.C.
BY: JILL R. MEZYK, ESQUIRE
ATTORNEY I.D.# 69631
1717 SPRING GARDEN STREET
PHILADELPHIA, PA 19130
(215) 563-3303
TOI Plaintiff and Co-Defendant
You are hereby noticed to plead to
the within New Matter within twenty
(20) days of service hereof or a
jUdgment may be entered against you.
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Attorney or Defendants
ATTORNEY FOR DEFENDANTS
WAYNE MATSON and
WEST SHORE TAXI COMPANY
LINDA VON DRACH
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 98-584 CIVIL
v.
MICHAEL BEAVER and
WAYNE MATSON and
WEST SHORE TAXI COMPANY
DEFENDANTS. WAYNE MATSON AND WEST SHORE TAXI'S ANSWER
TO PLAINTIFF'S COMPLAINT WITH NEW MATTER
AND NEW MATTER CROSS CLAIM PURSUANT TO RULE 2252(dl
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1-2.
Denied.
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After reasonable investigation answering
defendants lack sufficient knowledge and/or information to form a
belief as to the truth or falsity of the averments of this
paragraph and as such, the truth of said averments are denied and
strict proof thereof is demanded at the time of trial if relevant.
3-4. Admitted.
5 . Denied.
6 . Denied.
After reasonable investigation answering
defendants lack sufficient knowledge and/or information to form a
belief as to the truth or falsity of the averments of this
paragraph and as such, the truth of said averments are denied and
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strict proof thereof is demanded at the time of trial if relevant.
7-10. Denied.
WHEREFORE, answering defendants demand that the Complaint be
dismissed with assessment of attorney's fees and costs.
NEW MATTER
Comes now answering-defendants and aver the following, if
relevant:
11. Plaintiff's Complaint is barred and/or limited due to the
plaintiff's comparative negligence.
12. Plaintiff's Complaint is barred and/or limited due to the
plaintiff's contributory negligence.
13. Plainciff's Complaint is barred and/or limited due to the
plaintiff's assumption of the risks involved.
14. Plaintiff fails to state a claim upon which relief can be
granted.
15. Plaintiff has violated the applicable statute of
limitations.
16. The alleged accident was caused by a sudden emergency
over which answering-defendants had no control.
17. Answering-defendants assert all of the defenses in the
Pa. Motor Vehicle Financial Responsibility Law, 7S Pa C.S.A.
Section 1701 et seq.
18. Plaintiff's Complaint is barred and/or limited pursuant
to the provisions of the Pennsylvania No-Fault Motor Vehicle
Insurance Act and/or the Pennsylvania Motor Vehicle Financial
Responsibility Law and/or the recent amendments to the Motor
Vehicle Responsibility law identified as Act 6, of which are
incorporated herein by reference or in the alternative are limited
to non-economic losses only.
19. Plaintiff has failed to mitigate her damages.
20. The accident and injuries complained of by plaintiff were
caused by a person(s) other than answering-defendants over which
they had no control.
21. The defense asserts the bar of Limited Tort in that:
(a) The plaintiff is barred from bringing suit in that
the Plaintiff was a named insured or an insured in a motor vehicle
insurance policy whereby the "limited tort" option was elected
pursuant to the Pennsylvania Motor Vehicle Financial Responsibility
Law, 75 Pa. C.S.A. Section 1701 et seq., and/or plaintiff was a
named insured or an insured whereby a "verbal" threshold was
elected at the time of the accident.
(b) It is further averred that the plaintiff was not
named insured of any policy of motor vehicle insurance under the
Full Tort option of the Motor Vehicle Financial Responsibility Law,
75 Pa.a C.S.A. Section 1701 et seq. at the time of the accident;
(c) In the alternative it is averred that the plaintif.f
was the legal and/or equitable owner of a private passenger motor
vehicle and did not maintain a policy of motor vehicle insurance
and/or was not covered by any form of financial responsibility as
defined in the Motor Vehicle Financial Responsibility Law. 75 Pa.
C.S.A. Section 1701 et seq at the time of the accident and as such
are bound by the Limited Tort Option;
(d) Under the "limited tort" optionr the plaintiff
cannot recover from the defendant unless she sustained a serious
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injury as defined in the Motor Vehicle Financial Responsibility
Law, Pa. C.S.A. Section 1701;
(e) The plaintiff did not sustain a serious injury since
she did not sustain an injury resulting in death, serious
impairment of a bodily function or permanent serious disfigurement.
22. The defense asserts the bar that delay damages may not be
found because:
(a) Rule 238 of the Pennsylvania Rules of Civil
Procedure as amended and adopted by the Pennsylvania Supreme Court
is unconstitutional under the Pennsylvania and United States
Constitutions;
(b) If there is a judicial determination that damages
pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure
may be applied, then liability for any damages imposed by Rule 238
shall be suspended during a period of time that there was any delay
by the failure of the plaintiff to provide discovery and/or the
Court to promptly schedule trial of this matter.
23. All allegations by Plaintiff of actions and/or inactions
of answering-defendants were not the proximate cause of Plaintiff's
alleged injuries and/or damages, the existence of which answering-
defendants specifically deny and/or were not a substantial factor
in the cause of injury to the plaintiff.
24. Plaintiff's alleged injuries and damages are unrelated to
this occurrence.
WHEREFORE, answering-defendants demand that the Complaint be
dismissed with assessment of attorneys fees and costs.
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VILLAIU (;OLOMII & IIONIK
IIY: ,JOliN E. KUSTUIUSS, ,m" ESQUIRE
I,J>, NO. 2H27/
121 S, IIrlllld Strcct, Stc.9/O
1'H1LAJ>ELI'H1A, I'A. 19/07
(215)9H5-9177
AlIornc)' for 1'llIlnllff
Linda VonDrueh
1768 Main Street, Apt. A
Linsburn, P A 17055
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
18 - Jf'r ~L
v.
TERM.
Michael A. Beaver
101 Clarkton Court
Lemoyne, PA 17043
and
Wayne Matson
II 1 Bridge Street
New Cumberland, P A 17070
and
West Shore Taxi Company
3525 Hartsdale Drive
Camp Hill, PA 1701 I
CIVIL ACTION COMPLAINT
I. Plaintiff, Linda VonDraeh, is an individual residing at the above address.
2. Defendant, Michael Beaver is an individual residing at the above address.
3. Defendant, Wayne Matson is an individual residing at the above address.
4. West Shore Taxi Company, is a corporation doing business in the Commonwealth of
Pennsylvania with a registered office and/or principal place of business at the above
address.
5. Plaintiff, Linda VonDraeh, is entitled to full tort rights as set forth in the Amended
Motor Vehicle Financial Responsibility Act.
6. At 1111 times relevllnt herein. delcllllanl. Wayne Malson was the IIgent. serVllnl.
wnrkmanllnd/or emplo)'ee of West Shore Tllxi Comj1an)' IIcting withinlhe scope IInd
course of sllid relationship.
7. On or IIbout Februllry 20. 1996. delcndllnl Micbllel A. Beaver was tbe opemtor ofa
motor vehicle tbllt WIIS involved in a collision wilh II motor vebicle owned by West
Shore Tuxi Company and opemted b)' Wuyne Malson with the permission und CO:1sent
of West Shore Taxi Compuny. The eollisionoeeurred ut Louise Drive and Russmoyne
Road in Lower Allen Township. Cumberland Count)'. Pennsylvania.
8. Plaintiff. Linda VonDrach. was an oeeupantofthe motor vehicle opemted by Miehael
A. Beaver at the time of the collision resulting in the injuries und dumuges set forth in
detail hereinufter.
9. The accident uforesaid was caused by the negligence and curelessness of defendunts
in that Michuel A. Beaver and Wayne Mutson did:
(a) fail to have said motor vehicle under proper and adequate control utthe
time of the collision;
(b) operate said motor vehicle at a high und excessive rate of speed underlhe
circumstanccs;
(c) fail to give proper and sufficient warning of the approach of said motor
vehicle;
(d) operute said motor vehicle without due regard for the rights, safety and
position of Linda VonDrach;
(e) operate said motor vehicle in such a manner that it could not be brought
to a stop within the assured, clear distance ahead;
(I) violate the statutes of the Commonwealth of Pennsylvania pertaining to
the operation of motor vehicles; und
(g) otherwise. fail to exercise caution and due care.
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10. As a result of the negligence and earelessness aforesaid, Linda VonDraeh, sustained
injury to her back ineluding bones, muscles, ligaments and discs thereof. injury to her
leg as well as various other injuries and conditions as may be established, and injury
"
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VEIUFICATION
John E. Kusturiss, Jr., Esquire. hereby stutes that he is the attorney ror the plaintifl'
in this action and verifies that the statements made in the roregoing Civil Action Complaint are
true and corrcct to the best or his knowledge, inrormation and belier. The undersigned
understands that thc statements therein are made subject to penalties or 18 Pa, C.S.A. Section
4904 relating to unsworn ralsification to authorities.
II. ARGUMENT
According to Pcnnsylvania Rule of Civil Procedure 1030(a), "[e]xcept as provided by
subdivision (b), all affinnative defenscs including but not limitcd to the defcnse accord and
satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of
consideration, fair comment, fraud. illegality, immunity from suit, impossibility ofperfonnance,
justification, latches, license, payment, privilege, release, res judicata. statute of frauds, statute of
limitations, truth and waiver. shall be pleaded in a responsive pleading under the heading. 'New
Matter'. A party may set forth as new matter any other material facts which are not merely
denials of tile averments of tile proceeding pleading." Pa. R.C.P. /030(A) (Emphasis added)
An affinnative defense for "New Matter" purposes is a defense which, even ifall the
allegations of the Complaint are true. is still a bar to Plaintiffs recovery. Fox v. Byrne, 525
A.2d, 428(Pa. Super 1987) Pisechko v. Diaddorio, 326 A.2d 608 (Pa. Super 1974) It is well
settled that a Plaintiff docs not have to factually deny an assertion merely because it is labeled
"New Matter". He need only respond if the matter factually avers a true affinnative defense.
Watson v. Green, 331 A.2d 790 (Pa. Super 1974).
In reviewing the pleadings, if the Complaint alleges facts sufficient to deny the defense
pled in New Matter, then it does not bar recovery. "It is no longer a true. affinnative defense. In
that situation. it is no more than a denial of the Plaintiffs allegations". Fox. at 431.
Plaintiff. in her Complaint. specifically pled in Paragraph 10 that, "As a result of the
negligence and carelessness aforesaid, Lynda Yon Drach, sustained injury to her back. including
bones, muscles, ligaments and discs thereof. injury to her leg as well as various other injuries and
conditions as may be established, and injury to the nerves nnd nervous system. causing Plaintiff
to endure pain and suffering and to lose time from Plaintiffs usual duties, activities and
occupation, causing a loss of earnings and earning capacity and to incur dcbts and obligations for
mcdicinc and mcdical trcatmcnt, all of which may be permanent." Plaintifrs Complaint is
attached hereto as Exhibit "A". [n response to this, Defendant-Beaver pled a general denial in
his answer, and then under the heading "New Matter", paragraph 15 pled, "the injuries alleged to
have been suffered by Plaintiff as a result of this accident arc not the result of any negligence on
the part of Defendant-Beaver, but either existed prior to February 20, 1996, or are the results of
the pre-existing medical conditions of Plaintiff." Defcndant's New Matter is attached as Exibit
"B". Clearly reading paragraph 15 under the title, "New Matter", Defendant-Beaver is referring
to and directly denying paragraph 10 ofPlaintifrs Complaint. This is not what the law
contemplated when referring to New Matter bcing for affirmative defenses. [n order to clarify
this point, the Court in Fox adopted a rule to evaluate when New Maller needs to be responded
to. That rule is, "[a] Plaintiff has to factually deny New Maller ollly when it asserts a defense.
which if aI/the allegations of the Complaint are true, is still a bar to Plaintifrs recovery. Any
other defense pled as New Maller is wrongly labeled." Fox, at 432. (Emphasis added)
Accepting as true all of the allegations ofPlaintifrs Complaint, this Court must come to
the determination that the injuries pled resultcd from the negligcnce and carelessness of the
Defendants, which include Michael A. Beaver. Accordingly, Defendant's New Maller is
wrongly labeled, and is mercly a denial of paragraph 10 ofPlaintifrs Complaint, which places
the facts pled in paragraph 10 ofPlaintifrs Complaint at issue. The facts being at issue, this is
clearly a matter for ajury to decide.
III. CONCLUSION
As there is a factual dispute in the plcadings as to the cause ofPlaintifrs injuries, this is
VILLARI GOLOMB & HONIK'
BY: JOHN E, KUSTURlSS, JR., ESQUIRE
I,D. NO, 28271
121 S. Broad Street, Ste, 910
. PHILADELPHIA, PA. 19107
(215)985-9177
\.
Attorney for Plaintiff
Linda VonDrach
1768 Main Street, Apt. A
Linsbum, PA 17055
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
18. 67/1 e;..~
v.
TERM,
Michael A. Beaver
101 Clarkton Court
Lemoyne, PA 17043
and
Wayne Matson
111 Bridge Street
New Cumberland, P A 17070
and
West Shore Taxi Company
3525 Hartsdale Drive
Camp Hill, PA 17011
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CIVIL ACTION COMPLAINT
1. Plaintiff, Linda VonDrach, is an individual residing at the above address.
2. Defendant, Michael Beaver is an individual residing at the above address.
3. Defendant, Wayne Matson is an individual residing at the above address.
4. West Shore Taxi Company, is a corporation doing business in the Commonwealth of
Pennsylvania with a registered office and/or principal place of business at the above
address.
5. Plaintiff, Linda VonDrach, is entitled to full tort rights as set forth in the Amended
Motor Vehicle Financial Responsibility Act.
6. At all times relevant herein,' defendant, Wayne Matson was the agent, servant,
workman and/or employee of West Shore Taxi Company acting within the scope and
course of said relationship.
7. On or about February 20, 1996, defendant Miehael A. Beaver was the operator of a
motor vehiele that was involved in a collision with a motor vehiele owned by West
Shore Taxi Company and operated by Wayne Matson with the permission and eonsent
of West Shore Taxi Company. The eollision oceurred at Louise Drive and Russmoyne
Road in Lower Allen Township, Cumberland County, Pennsylvania.
8. Plaintiff, Linda V onDrach, was an occupant of the motor vehicle operated by Michael
A. Beaver at the time of the collision resulting in the injuries and damages set forth in
detail hereinafter.
9. The accident aforesaid was caused by the negligence and carelessness of defendants
in that Michael A. Beaver and Wayne Matson did:
(a) fail to have said motor vehicle under proper and adequate control at the
time of the collision;
(b) operate said motor vehicle at a high and excessive rate of speed under the
circumstances;
(c) fail to give proper and sufficient warning of the approach of said motor
vehicle;
(d) operate said motor vehicle without due regard for the rights, safety and
position of Linda VonDrach;
(e) operate said motor vehicle in such a manner that it could not be brought
to a stop within the assured, clear distance ahead;
(f) violate the statutes of the Commonwealth of Pennsylvania pertaining to
the operation of motor vehicles; and
(g) otherwise, f.'dl to exercise caution and due care.
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10. As a result of the negligence and carelessness aforesaid, Linda V onDrach, sustained
injury to her back including bones, muscles, ligaments and discs thereof, injury to her
leg as well as various other injuries and conditions as may be established, and injury
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of law or fact to which no response is necessary. To the extent that a response is deemed
necessary, the avennents arc denied pursuant to Pa. R.C.P. 1029(e).
6. After reasonable investigation, Defendant Beaver lacks knowledge or infonnation
sufficient to fonn a belief as to the truth of the avennents contained in Paragraph 6 of Plaintiffs
Complaint; the avennents arc therefore denied, and strict proofthereofis demanded at trial.
7. Denied as stated. It is admitted that Defendant Beaver was the operator of a
motor vehicle involved in a collision on Febnmry 20, 1996. After reasonable investigation,
Defendant Beaver lacks knowledge or information sufficient to fonn a belief as to the truth of the
avennents contained in Paragraph 7 of Plaintiffs Complaint regarding Defendants Matson and
West Shore Taxi Company; the avennents arc therefore denied, and strict proof lhereof is
demanded atllia!. The remaining avennents contained in Paragraph 7 of Pin in tiffs Complaint
arc denied pursuant to Pa. R.C.P. 1029(e).
8-10. The avennents contained in Paragraphs 8 through 10 of Plaintiffs Complaint arc
conclusions oflaw or fact to which no response is necessary. To the extent that a response is
deemed necessary, the avennents arc denied pursuant to Pa. R.C.P. 1029(e). By way of further
.-\nswer, Defendant Beaver hereby incorporates by reference Paragraph 14 of his New Matter as
:hough fully set forth herein.
WHEREFORE, Defendant, Michael A. Beaver, demands judgment in his favor and
against Plaintiff and all other parties, and that Plaintiffs Complaint be dismissed with prejudice
and costs of this action.
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2
NEW MATTER
II. The avennents set forth in Plaintiffs Complaint fail to state a claim or cause of
action against Defendant Beaver upon which relief may be granted.
12. Any claim or cause of action set forth in Plaintiffs Complaint is barred by
operation ofthe contributory/comparative negligence of Plaintiff, as may be developed during
discovery.
13. Any claim or cause of action set forth in Plaintiffs Complaint is balTed by
operation of Plaintiffs assumption of a known risk, as may be developed during discovery.
14. Any claim or cause of action set forth in Plaintiffs Complaint is balTed by the
applicable statute of limitations, including specifically, but not limited to, any claim 'or cause of
action which, by reason ofIack of specificity of pleading, is not directly or specifically set forth
in the language of Plaintiffs Complaint, but which Plaintiffseeks to raise at a later time by
further amendment, claiming to have preserved such claim or cause of action within Plaintiffs
Complaint.
15. The injuries alleged to have been suffered by Plainliffas a result of this accident
are not the result of any negligence on the part of Defendant Beaver, but instead either existed
;>rior to February 20,1996, or are the results of the pre-existing medical conditions of Plaintiff.
16. Any claim or cause of action set forth in Plaintiffs Complaint is balTed or limited
'y the Motor Vehicle Financial Responsibility Law, as codified at 75 Pa. C.S.A. S170l jj ~., as
:nay be developed during discovery. _ .
3
NEW MATTER CROSSCLAIM PURSUANT TO RULE 2252(d)
1. If Plaintiff suffered the damages and injuries as alleged in her Complaint, then
Defendant Beaver avers that said accident and injuries were caused by the carelessness,
negligence and recklessness of Co-Defendants, Wayne Matson and West Shore Taxi Company,
for the reasons set forth in Plaintiffs Complaint, which is incorporated herein by reference
without admission as to the truth of any oflhe said avennents.
2. If the accident occurred as aforesaid, then Defendant Beaver avers that Co-
Defendants, Wayne Matson and West Shore Taxi Company, are solely liable to Plaintiff, liable
o\'er to Defendant Beaver, jointly or severally liable to Plaintiff, or liable to Defendant Beaver
directly.
WHEREFORE, Defendant, Michael A. Beaver, demands judgment against Co-
Defendants, Wayne Matson and West Shorr. Taxi Company, finding them to be solely liable to
Plaintiff. liable over to Defendant Beaver. jointly or severally liable to Plaintiff, or liable to
Defendant Beaver directly.
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LINDA VonDRACH,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL TERM - LAW
MICHAEL A. SEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a copy of the
foregoing document upon the person(s) and in the manner indicated below, which service
satisfies the requirements oflhe Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United Slates mail, first-class postage prepaid, as follows:
John E. Kusturiss, Jr., Esquire
Villari, Golomb & Honik
121 S. Broad Street, Suite 910
Philadelphia, PA 19108
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
1831 Chestnut Street, 2nd Floor
Philadelohia, PA 19103
(Counsel for Defendants, Wayne Malson and West Shore Taxi Company)
HARTMAN & MILLER, P.C.
By:
f!.~
Amy . Foerster, Esquire _.
Supreme Court 1.0. #77986
126-128 Walnut Street
Harrisburg, P A 17101
(717) 232-3046
Dated:
37'/9/7Y-
Attorneys for Defendant, Michael A. Beaver
and West Shore Taxi Company's, crossclaim be dismissed,
II, STATEMENT OF THE QUESTION PRESENTED
SHOULD DEFENDANTS, MATSON AND WEST SHORE TAXI COMPANY, BE
PUNISHED BECAUSE PLAINTIFF FAILED, OR MAY HAVE FAILED, TO RESPOND
TO CO-DEFENDANT'S NEW MATTER IN A TIMELY FASHION?
Suggested Answer: No.
III. ARGUMENT
Defendants, Matson and West Shore Taxi Company, in
answering plaintiff's complaint, filed a crossclaim against
defendant, Beaver, as their investigation revealed that he was the
liable party in this matter. Specifically, there are 3 witness
statements that confirm defendant, Beaver, went through a red
light, causing the motor vehicle accident. Defendant, Beaver,
requests that the crossclaim be dismissed because plaintiff failed
to answer his new matter, and admitted that the injuries pre-
existed the motor vehicle accident.
Defendant, Beaver, has cited no case law or statutory
authority to support his request to dismiss the crossclaim of
defendants, Matson and West Shore Taxi Company. It would be unfair
to dismiss co-defendants' crossclaim because of the failure of the
plaintiff to act within a timely fashion.
The crossclaim addresses liability, by incorporating
plaintiff's complaint, and stating, "(ilf the accident occurred as
, .
VERIFICATION
I, Jill R. Mezyk, Esquire, hereby states that I am the
attorney for the Defendant in this matter, and the statements made
in the foregoing Pleadings are true and correct to the best of my
knowledge, information and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa. C.S.A. section 4904
relating to unsworn falsification to authorities.
~ 14. /~I
Ji R. MezyK, Esquire
LINDA VonDRACH,
C:OlJRTOF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
PluintifT
v.
CIVI L TERM - LAW
MICHAEL A. BEAVER, WAYNE
MATSON nnd WEST SHORE TAXI
COMPANY,
NO: 9K-5K4
Dcfclldunls
.IlJRYTRIAL DEMANDED
BRIEF IN SUPI'OHT OF TIII~ MOTION OF I)EFENDANT, MICHAEL A, BEAVER,
FOR ,IUIlGMENT ON TilE PLEADINGS
AND NOW, comcs the Defenuullt, Michuel A. I3cuver (hereinafter "Defendnnt Benver"),
by and through his attorneys, Hurllllun & Millcr, I' .C., and submits the within Briefin support of
his Motion for Judgmcnt on thc Plcndings.
L STATEMENT OF Tim I~ACTS
Plaintiff ininted thc nbovcocuplioncd pcrsonul injury nction by the filing of a Complaint
on or about Febnlllry 2, 1998, In hcr Compluint, Plnintiffullcgcs that on February 20, 1996, she
was a passenger in u vehicle hcing operulcd by Defenuunt Beuvcr, which wus involved in II
collision with Utllxi-cuh owncd b)' Co.Dcfendunt, West Shore Tmd Company, and opernted by
Co-Delcndunt, Wn}'nc Mntson. (Col11plnillt, '17.) Specifically, Plaintiff alleges that "[a]s a result
of the negligcnce nnd carelessness ut'orcsuid, Lil1lla VonDrach sustained injury to her back
including hones, lIlusclcs, Iigulllcnts und disks thercof: injury to her leg as well as various other
(Motion Exhibit "e", ~8-10.) Plaintiffs Answer to Defendant Beaver's New Matter was due on
June 10,1998. & Pa. R.C.P. 1026(a). As of August 18, 1998, the date Defendant Beaver filed
his Motion for Judgment on the Pleadings, Plaintiff had not yet filed an Answer to Defendant
Beaver's New Matter. 2
Based on information contained in Plaintiffs medical records and other file materials,
Defendant Beaver asserted in his New Matter that the injuries alleged to have been suffered by
Plaintiff as a result of this accident existed prior to February 20, 1996, the date of the accident.
(Motion Exhibit "C", ~ 15.) By failing to respond to this New Maller, Plaintiff admits the factual
averments contained therein, that is that the injuries which she alleges to have suffered as a result
of this accident were not caused by the accident, but were instead pre-existing.
It is well-established in Pennsylvania case law that the elements of negligence include (a)
a duty or obligation recognized by law requiring the actor to conform to a certain standard of
conduct, (b) a failure to conform to the standard required, (c) a causal connection between the
failure and the resulting injury, and (d) actual injury resulting to the interest of another. O'Neal v
Depl. of Army, 852 F.Supp. 327,335 (M.D. Pa. 1994). As a result of her admission, Plaintiff
has failed to establish both the third and fourth elements for a cause of action based on
negligence. Specifically, Plaintiff has failed to set forth a causal connection between an alleged
breach by Defendant Beaver of a duty owed to Plaintiff and any alleged injury suffered by
2 Plaintiff filed an Answer to Defendant Beaver's New Maller on or about August
26, 1998, subsequent to the filing of Defendant Beaver's Motion for Judgment on the Pleadings.
4
\
Plaintiff as a result of that breach. nnd. in faet,lms not established thnt she suffered nny injury nt
all as a result of this accident. Defendant Beaver. therefore is entitled to the entry of a Judgment
on the Pleadings in his favor. ~ Pa. R.C.P. 1034.
In her Response to Defendant Beaver's Motion for Judgment on the Pleadings, Plaintiff
essentially sets forth three arguments in opposition to the Motion. First, Plaintiff asserts that
Defendant Beaver's New Matter contains averments or conclusions oflaw to which no response
was necessary. Second, Plaintiff contends that the allegations contained in Defendant Beaver's
New Matter were denied by necessary implication pursuant to Pa. R.C.P. 1029(b). Third,
Plaintiff alleges that Defendant Beaver's New Matter was improperly labeled as such, because it
constitutes nothing more than a denial of the allegations contained in Plaintiffs Complaint. For
the reasons discussed in further detail below, however, it is Defendant Beaver's position that his
New Matter did indeed require a response, and that the factual averments contained therein have
been admitted by Plaintiff.
Plaintiffs first argument, that she did not have to respond to Defendant Beaver's New
Matter averments because they were conclusions of law to which no response was necessary, is
incorrect with regard to the specific New Matter paragraph in question. Paragraph 15 of
Defendant Beaver's New Matter asserts that the injUlies alleged to have been suffered by
Plaintiff existed prior to February 20 1996, which is a factual issue regarding Plaintiffs injuries,
rather than an conclusion oflaw. Furthermore, Plaintiff filed an Answer to Defendant Beaver's
New Matter on or about August 26, 1998, eight days nfter Defendant Beaver's Motion for
5
Judgmcnt onlhc Plcndings wns lilcd. Thc Iilcllhnt Plninliff did cvcnlunlly lilc nn Answcr 10
Ncw Mnllcr supports Dcfcndnnl13cnvcr's positionthnt such nn Answcr wns rcquircd in II timely
fashion.
Plaintiff next argues that shc denied thc assertions contained in Paragraph 15 of
Defendant Beaver's New Maller by nccessary implication. According to Plaintiff, because she
pleaded in her Complaint that her injuries were caused by the collision occurring on February 20,
1996, the allegation in Defendant Beaver's New Matter that the injuries alleged in the Complaint
pre-existed the accident in question was denied by necessary implication. As discussed in further
detail below, however, Defendant Beaver's New Matter does indeed raise a new issue not
contained in Plaintiff's Complaint, that is that the injuries alleged in the Complaint were suffered
prior to the accident in question. Plaintiff cannot rely on a conclusion oflaw (that is that her
injuries were caused by this accident), pleaded prior to Defendant Beaver's New Matter to deny a
new factual avennent contained in the New Matter.
The theory of denial by necessary implication examines whether or not a responsive
pleading, by its contents, denies the allegations of the prior pleading by necessary implication.
For example, the Plaintiffs in Mellon Bank v. H. Joseph, 267 Pa. Super. 307,406 A.2d 1055
(1979), and Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d I (1978), sought to have certain
paragraphs in their Complaints deemed admitted due to the defendants' failure to those
paragraphs in their Answers. In both cases, however, the Court detennined that it may properly
look to the defendants' Answers as a whole, rather than the specific paragraphs corresponding to
6
the allegations in the Complaints, to detcrmine whethcr or not thc dcfendants admittcd the factual
allegations. In the case at bar, there is no Reply to New Mattcr that the Court can examine as a
whole to determine whether or not Plaintiff has denicd the factual allcgation contained in
Paragraph 15 of the New Matter. Plaintiff should not be allowed to fall back on her Complaint,
whieh was filcd before Defendant Beaver's New Matter was even drafted, to answer the new
factual allegations contained in the New Matter.
Finally, Plaintiff argues that she was not required to respond to Defendant Beaver's New
Matter, because it contained nothing more than denials of the allegations contained in Plaintiffs
Complaint. Defendant agrees that "[n]ew matter properly contains averments of fact only if they
are extrinsic to facts averred to the Complaint." Watson v. Green, 231 Pa. Super 115, 119, 331
A.2d 790, 792 (1974). ParagTaph 15 of Defendant Beaver's New Matter, however, does indeed
contain a fact extrinsic to those pleaded in the Complaint, that is that the injuries that Plaintiff
alleges that she suffers from pre-existed the accident in question.
A fact contained in a defendant's New Matter can be directly related to allegations
contained in the plaintiffs Complaint and still be extrinsic to the Complaint, as is the situation
with the case at bar. For example, the plaintiff in Mueller v. Bracey, 12 D.& D. 3d 623 (C.P.
Phila. Co. 1979), brought an action to obtain reimbursement from his insurance company for
alleged theft losses. The defendant insurance company denied coverage, alleging that the
plaintiff supplied fraudulent information in filling oul his policy application. In his Complaint,
the plaintiff alleged that the application was filled oul with the assistance of an additional
7
defendant, who was an agent of the defendant company. In its New Maller, however, the
defendant company asserted that the additional defendant was either an independent contractor or
/':
:1
an agent of the plaintiff, rather than the defendant's agent. The plaintiff filed preliminary
objections to the New Matter, arguing that it was merely a denial of facts contained in the
plaintiffs Complaint, and was, therefore, inadmissable under Pa. R. C.P. 1030.3 The Court,
,
however, found that the defendant's New Matter did more than merely deny the additional
defendant's status as the defendant's agent by making the affinnative avennent that he worked
,
either for himself or for the plaintiff. The plaintiffs preliminary objections were dismissed, and
Matter would have been to file a Reply pursuant to Pa. R.C.P. 1029. Otherwise, the Court noted,
the Court indicated that the correct way for the plaintiff to respond to the defendant's New
the avennents contained in the new matter would be deemed admitted.
In Edmond v. South Eastern Pennsvlvania Transp. Authority, 651 A.2d 645 CPa.
1
I
,
I
Commw. 1994), the defendant filed an Answer and New Matter, alleging that the plaintiff made
{
,
no attempt to serve the original Complaint on the defendant during the prescribed time period,
and that the plaintiffs claim was therefore barred by the statute of limitations. The plaintiff
failed to respond to the defendant's New Matter, and the Court deemed the averments to be
3 Pa. R.C.P. 1030 provides that a party may set forth as new matter any other
material facts which are not really denials of the avernlent of the preceding pleading.
8
.~
"
averments contained in the delcndunt hospital's New Mutter, including thutthe hospital acted
properly in conducting a more thorough investigation of the plaintiffs qualilieations upon
leuming of the drug convictions, would have been deemed admitted by the plaintiffs failure to
file a Reply to New Matter, but for the fact that the defendant hospital's Answer and New Malter
did not contain a Notice to Plead. lil at217, 527 A.2d at I 032.
In the case at bar, Plaintiff alleged in her Complaint that she suffered injuries "as a result
it
of the negligence and carelessness" of Defendant Beaver. (Motion Exhibit "A", ~1O.) In his
Answer, Defendant Beaver stated that he was not required to respond to this paragraph of
Plaintiff's Complaint, because it contained a conclusion of law, that is that Plaintiffs injuries
were caused by the negligence of Defendant Beaver. The only facts contained in this paragraph
of the Complaint deal with the fact that Plaintiff has specific injuries listed therein. The
.'\
,
1
averments contained in Defendant Beaver's New Maller, therefore, were indeed more than a
J
i
mere denial of the allegati~ns contained in Plaintiffs Complaint. Rather, the averments
contained in the New Matter indicate that even if one accepts Plaintiffs allegation that she has
certain injuries as true, these injuries were in existence prior to the accident in question.
Plaintiff cites Fox v. Byrne, 363 Pa. Super. 70, 525 A.2d 428 (1987), in support of her
position that a plaintiff does not have to respond to a defendant's New Malter when the mailer
alleged is merely a denial of the averments contained in the Complaint. As discussed above,
Defendant Beaver does not take issue with Plaintiffs representation of this law. In the case at
bar, however, Defendant's New Maller was not simply a denial of the facts contained in
10
1~
Respectfully submitted,
HARTMAN & MILLER, P.C.
By:
Jack M. Hartman, Esqu' c
Suprcmc Court I.D. #21902
Amy C. Focrster, Esquirc
Suprcme Court I.D. #77986
126-128 Walnut Street
Harrisburg, P A 1710 I
(717) 232-3046
Dated:
q/d.L{/98
Attorncys for Defendant, Michael A. Beaver
13
LINDA VonDRACII,
PllIinliff
COURT or COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL TERM - LAW
MICHAEL A. BEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a copy of the
foregoing document upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by sending a copy of the
same via UPS Next Day Delivery, as follows:
John E. Kusturiss, Jr., Esquire
Villari, Golomb & Honik
121 S. Broad Street, Suite 910
Philadelphia, PA 19108
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
1831 Chestnut Street
2nd Floor
Philadelphia, PA 19103
(Counsel for Defendants, Wayne Matson and West Shore Taxi Company)
Dated:
CJ/J L( lerg
HARTMAN & MILLER, P.C.
By: IfZh J IV fl~
::1. ~e~s~;: ~uire
Supreme Court I.D. #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Attomeys for Defendant, Michael A. Beaver
LINDA VonDRACH,
Plaintifl'
COURT or COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYL VANIA
v.
CIVIL TERM - LAW
MICHAEL A. BEAVER, WAYNE
MATSON and WEST SHORE TAXI
COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF THE ANSWER OF JACK M. HARTMAN, ESQUIRE, AND
AMY C. FOERSTER, ESQUIRE, COUNSEL FOR DEFENDANT, MICHAEL A.
BEAVER, TO PLAINTIFF'S CROSS MOTION FOR SANCTIONS
AND NOW, come the undersigned, Jack M. Hartman, Esquire, and Amy C. Foerster,
Esquire, counsel for Defendant, Michael A. Beaver, and submit the within Briefin Support of
their Answer in opposition to Plaintiffs Cross Motion for Sanctions.
L STATEMENTOFTHEFACTS
Undersigned counsel incorporates herein by reference the Statement of the Facts set forth
in their Brief in Support of the Motion of Defendant, Michael A. Beaver, for Judgment on the
Pleadings, filed concurrently herewith.
On or about August 18, 1998, undersigned counsel filed a Motion for Judgment on the
Pleadings on behalf of Defendant Beaver. On or about August 28, 1998, Plaintiff filed a
Response to Defendant Beaver's Motion for Judgment on the Pleadings, which included a Cross
Motion for Sanctions against Jack M. Hartman, Esquire, and Amy C. Foerster, Esquire, counsel
Plaintiffs eounseltclephoned Amy C. Foerster, undersigned counsel for Defendant
Beavcr, on August 25, 1998, demanding that she withdraw Dcfendant's Motion for Judgmcnt on
the Pleadings. At that timc, Plaintiffs counsel's did not take thc position that he was not
required to rcspond to Defendant Bcaver's New Matter, as Plaintiff now asserts in her response
to Defendant Beaver's Motion for Judgment on the Pleadings, but instead indicatcd that he had
simply forgotten to do so. (Affidavit of Amy C. Foerster, Esquire.) A truc and correct copy of
the Affidavit of Amy C. Foerstcr, Esquirc, is attachcd hcreto as Exhibit "A", and is incorporated
herein by referencc. When undcrsigned eounscl for Defendant Beaver pointed out to Plaintiffs
counsel that Plaintiff owed Defcndant Beaver outstanding discovery responses, and that several
letters had been sent to Plaintiffs counscl requesting that infonnation, Plaintiff's counsel stated
that undersigned counsel should have telephoned him, because he is sometimes too busy to read
his mail. (Exhibit "A".) Undersigned counsel then indicated to Plaintiffs counsel that she wold
not withdraw the Motion, because Plaintiff's counsel had not been cooperative in moving this
matter forward, and, moreover, because the Motion was meritorious and in her client's best
interest. (Exhibit "A".)
Plaintiff's counsel asserts in his Motion for Sanctions that undersigned counsel is
misleading the Court by failing to cite "readily available contrary legal authority directly on
point against the Defendant's position", specifically Fox v. Byrne, 363 Pa. Super. 70, 525 A.2d
428 (1987). To the contrary, undersigned counsel was not aware of the fu case until Plaintiffs
counsel brought it to her attention on August 27, 1998. Although E2x is distinguishable from the
3
.......,.
casc at bar, undersigned counsel citcs and discusses it in Delcndnnt's Ilriefin Support of his
Motion for Judgmcnt on the Pleadings.
As indicatcd inundcrsigned counsels' Answer in Opposition to Plaintiffs Cross Motion
for Sanctions, they have refused to withdraw their Motion for Judgment on the Pleadings because
it is meritorious under the Pcnnsylvania Rules for Civil Procedure and related case law, and they
would be doing a disservice to their client if they refused to pursue this meritorious Motion. It
should be noted that contrary to the misrepresentations contained in Plaintiffs counsel's Motion
for Sanctions, undersigned counsel for Defendant Beaver, Amy C. Foerster, left him a message
on his voice mail at approximately 9:00 A.M. on August 27, 1998, requesting that he contact her
to discuss the Ellli case. (ill Answer to Plaintiffs Motion for Sanctions, Exhibit "A.")
Plaintiffs counsel did not return undersigned counsel's telephone call until August 28,1998.
Regardless, Plaintiffs Motion for Sanctions is dated August 29, 1998, and incorrectly indicates
that undersigned counsel did not respond to Plaintiffs counsel's telephone message on the Ellli
case.
According to 42 Pa. C.S.A. g8355, an attorney who signs a motion certifies that he has
read the motion, and "that, to the best of his knowledge, information and belief, it is wel\-
grounded in fact and is warranted by existing law or a good faith argument for the extension,
modification or reversal of existing law; and that is not interposed in faith or for any improper
purpose, such as to harass another, to maliciously injure another or to cause unnecessary delay or
increase the cost of litigation." 42 Pa. C.S.A. g8355. Defendant Beaver's Motion for Judgment
4
EXHIBIT A
moving this matter forward, and because the Motion is meritorious and in Defendant Beaver's
best interest.
Sworn to and subscribed before me
this !J. (/ tdt..day of LL_y...u ,,>>,-C-LV, /,I}C).I"
,,: (!&
(SEAL)
L-J ((;\....-,..lA -"" .J: '1? A/Lbt(~-
.. r-
Notary Public
My Commission Expires:
Nolarlal Seal
Hancy L. Blslllne, Nolary PUblic
Lemoyne Boro. Cumberland Counly
My Commission expires Nov. 23, 19S9
Member, Pofln:l\o'v,m1a "'q='~!t'i'OO 0' NQI6tteD
2
Ill' .'
\,
"
LINDA VonDRACH,
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND CO., PENNSYLVANIA
v.
CIVIL TERM - LAW
"
" '
,
(
Plaintiff
MICHAEL A. BEAVER, WAYNE
MATSON and WEST SHORE TAXI
COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
MOTION OF DEFENDANT, MICHAEL A, BEAVER, TO COMPEL
PLAINTIFF'S ANSWERS TO INTERROGATORIES AND REQUEST FOR
PRODUCTION OF DOCUMENTS
AND NOW, comes the Defendant, Michael A. Beaver, by and through his allomeys,
Hartman & Miller, P.C., and files the within Motion to Compel Plaintiff to serve full and
I
,
I
responsive Answers to Defendant's Interrogatories and Requests for Production of Documents,
i
,
and in support thereof avers as follows:
J. Plaintiff initiated the above-captioned personal injury action by the filing ofa
Complaint on February 6,1998.
2. Plaintiff alleges that she suffered injuries to her back and leg, as well as other
injuries, when she was a passenger in a vehicle being driven by Moving Defendant, which
collided with a vehicle owned by Co-Defendant West Shore Taxi Company, and being operated
by Co-Defendant Wayne Matson.
3. On or about April 17, 1998, Moving Defendant served Interrogatories and
.( "
Rcqucsts for Produclion of Documcnls upon Plaintiff. Truc and corrcct copics ofthc abovc-
rcfcrcnccd discovcry rcqucsts arc attachcd hcreto as Exhibit "A", and arc incorporalcd hcrcin by
rcfcrcncc.
4. Thc aforcsaid discovcry documcnts includc rcqucsts for infonnalion rcgarding thc
mcdical trcatmcnt rcndcrcd to Plaintiff as a rcsult of this accidcnt, rcqucsts for copics of the
mcdical rccords documcnting Plaintiffs trcatmcnt, and rcqucsts for thc idcntity and rcports of
any cxperts to testify on behalfofPlaintiffat lrial.
5. Pursuant to Pa. R.C.P. 4006 and 4009.12, Plaintirrs Answers to Moving
Defendant's Interrogatories and Requests for Production were due to Moving Defendant by May
17,1998.
6. To date, more than four (4) months aileI' the serviee of the aforesaid discovery
requests, Plaintiff has failed to Answer Defendant's Intcrrogatories and Requests for Production
of Documents, nor did Plaintiff object to Moving Defendant's discovery requests within thirty
(30) days of their service.
7. By letter to counsel for Co-Defcndant datcd June 24, 1998, with copy providcd to
Plaintiffs counsel, undersigned counsel requested that all partics provide their Answers to the
outstanding discovery documents within filleen (15) days of that letter. A true and correct copy
of the above-referenced letter is attachcd hereto as Exhibit "B", and is incorporated hcrein by
reference.
8. In a lettcr to all counsel dated July 22, 1998, undersigned counsel indicatcd that if
2
.. ,
'.
Answers to the outstulllling discovery rcquests were not receivcd within ten (10) days, she would
be pursuing a Motion to Compcl. A true allll corrcct copy of the ubove-referenced letter is
attached hereto as Exhibit "C", und is incorporuted herein by reference.
9. In uletter to undersigned counsel dated July 30, 1998, Plaintifrs counsel stated
that "Plaintifrs Response to Interrogatories and Requests for Production of Documents will be
submitted to your office soon." A true and correct copy of the above-referenced letter is uttaehed
hereto as Exhibit "0", and is incorporated herein by reference.
10. In a letter to Plaintiffs counsel dated August 11, 1998, undersigned counsel stated
that in light ofPlaintifrs counsel's most recent letter, referenced above, she would refrain from
filing u Motion to Compel until August 27. 1998. A ture and correct copy of the above-
referenced letter is attached hereto as Exhibit "E", and is incorporated herein by reference.
II. As of the date of the filing of this Motion, undersigned counsel has not yet
received Plaintiffs Answers to the outstanding Interrogatories and Requests for Production of
Documents.
12. In a telephone conversation on August 28, 1998, during which undersigned
counsel asked Pluintiffs counsel if the discovery responses would be forthcoming, or whether
the within Motion to Compel would have to be filed, Plaintiffs counsel stated that the responses
would not be provided, and undersigned counsel should "file that Motion, too" (referring to an
outstanding Motion for Judgment on the Pleadings).
3
EXHIBIT A
'.
,
.,
,
DEFINITIONS AND INSTRUCTIONS
(A) Whenever the tenn "document" is used herein, it includes (whether Dr not
specifically called for) all printed, typewritten, handwritten, graphic or recorded matter, however
produced or reproduced and however fonnal and infonnal.
(B) Whenever you are asked to "identifY" a document, the following infonnation
should be given as to each document of which you are aware, whether or not you have
possession, custody or control thereof:
(I) The nature of the document (~, letter, memorandum, computer
print-out, minutes, resolution, tape recording, etc.);
(2) Its date (or ifit bears no date, the date when it was prepared):
(3) The name, address, employer and position of the signer or signers
(or ifthere is no signer, of the person who prepared it);
(4) The name, address, employer and position of the person, ifany, to
whom the document was sent;
(5) If you have possession, custody or control of the document, the
location and designation of the place or file in which it is contained, and the name,
address and position of the person having custody of the document;
(6) If you do not have possession, custody or control of the document,
the present location thereof and the name and address of the organization having
possession, custody or control thereof; and
(7) A brief statement of the subject matter of such document.
(C) Whenever you arc asked to "identify" an oral communication, the following
infonnation should be given as to each oral communication of which you arc aware, whether or
not you or others were present or participated therein:
(1) The means of communication (~,telephone, personal
conversation, etc.);
(2) Where it took place;
(3) Its date;
(4) The names, addresses, employers and positions (a) of all persons
who participated in the communication; and (b) of all other persons who were
present during or who overheard that communication;
(5) The substance of who said what to whom and the order in which it
was said; and
(6) Whether that communication or any part thereof is recorded,
described or referred to in any document (however infonnal) and, if so, an
identification of such document in the manner indicated above.
(D) If you claim that the subject mailer of a document or oral communication is
privileged, you need not set forth the brief statement of the subject mailer of the document, or the
substance of the oral communication called for above. You shli!l, howevcr, otherwise "identify"
such document or oral communication and shall state each ground on which you claim that such
document or oral communication is privileged.
(E) Whenever you arc asked to "identify" a person, the following infonnation should
'.
be given:
(I) the name, present address and present employer and position of the
person; and
(2) Whether the person has given testimony by way of deposition or
otherwise in any proceeding related to the present proceeding and/or whether that
person has given a statement whether oral, written, or otherwise, and ifso, the title
and nature of any such proceeding, the date of the testimony, whether you have a
copy ofth.: transcript thereof, the name of the person to whom the statement was
given, wh.:re the statement is presently located if written or otherwise transcribed,
and the present location of such transcript or statement ifnot in your possession.
(F) Th.: tenn "you" and "plaintiff' shall be deemed to mean and refer to the plaintiff,
Linda VonDrach. and shall also be deemed to refer to, but shall not be limited to, her attorneys,
consultants, sureties, indemnitors, insurers, investigators, and any other agents insofar as the
material requested herein is not privileged.
(G) The word "incident" shall be deemed to mean and refer to the incident as alleged
to have occurred and as set forth in your Complaint.
These Interrogatories shall be deemed to be continuing Interrogatories. Between the time
of your answers to said Interrogatories and the time of trial, if you or anyone acting in your
behalf learns the identity or whereabouts of other witnesses not disclosed in your answers, or if
EDUCATION:
2. State the name and address of eaeh school, college or other educational facility which you
have attended, listing the dates of attendance and courses of study, including all
professional, trade, on-the-job, or any other specialized training which you have received.
ANSWER:
SI rpPORT:
3. State the names, addresses, relationships and ages of all persons dependent upon you for
support or maintenance, or to whom you contributed support or maintenance, at the time
of the incident referred to in your Complaint, listing for each such person the nature and
amount of such support or maintenance paid or contributed in the year preceding the
incident referred to in your Complaint.
ANSWER:
"
",
;1'Ji
'.
WITNESSES AND THOSE WITH
KNOWLEDGE OF THE INCIDENT:
8. Identify each person (by stating the name, last known home and business address) who:
(a) Actually saw the incident;
(b) Was present at the time of the incident and witnessed it through sight or hearing;
(c) Has any knowledge or infonnation as to any facts pertaining to the circumstances
and manner of the happening of the incident, the physical conditions existing at
the time of the incident or the nature or extent of the injuries or damages
sustained.
ANSWER:
ST A TEMENTS:
9. Do you or anyone acting on your behalf know or believe that any written statement (as
defined by the Rules of Civil Procedure) or any oral statement concerning this action or
its subject matter has been given ~ or obtained from any person?
If so, identify (by stating the name, last known home and bU5iness address):
(a) Each person who gave an oral statement and when, where, and to whom it was
made; and the substance of each such statement;
(b) Any person who has custody of any written statements or those reduced to a
writing or otherwise recorded.
ANSWER:
'.
16. When, where and by whom were you last examined or given medical attention
concerning thc injuries received in this incident?
ANSWER:
17. State how each injury you sustained affected your nonnal employment, home or
recreational activities, describe in detail the nature of such restraint and indicate any
present disability and the percentage, if pennanent.
ANS\VER:
\
'.
20. If you were employed on the date of the incident and make claim for lost wages or lost
earning capacity, state the basis upon which you intend to compute your lost earnings or
lost earning capacity including dates missed from work, rates of compensation and jobs
you contend you could have perfonned.
ANSWER:
21. As to each of your alleged damages, including medical expenses, state whether the
expenses incurred have been paid and, if so, the source of payment. (Include duplicate
payments).
ANSWER:
INSTRUCTIONS
1. If you object to the production of any document on the grounds that the attorney-
client, attorney work-product or any other privilege is applicable thereto, you shall, with respect
to that document:
a. State its date:
b. Identify its author;
c. Identify each person who prepared or participated in the preparation of the
document;
d. Identify each person who received it;
e. Identify each person ITom whom the document was received;
f. State the present location of the document and all copies thereof;
g. Identify each person who has ever had possession, custody or control ofit
or a copy thereof;
h. Provide sufficient infonnation concerning the document and the
circumstances thereof to explain the claim of privilege and to pennit the adjudication of the
propriety of that claim; and
i. As referred to herein, "document" includes written, printed, typed,
recorded, or graphic matter, however produced or reproduced, including correspondence,
telegrams, other written communications, data processing storage units, tapes, contracts,
agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports,
surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any
DOCUMENTS REOUESTED
I. All statements, signed statements, transcripts of recorded statements or interviews
of any person or witness relating to, refening to or describing any of the events described in the
Complaint.
2. All expert opinions, reports, summaries or other writings in your custody or
eontrol or your attorney or insurers, which relate to the subject matter of this litigation.
3. All documents, medical records, correspondence or other drawings, sketches,
diagrams, or writings in your custody or control or your attorney or insurers, which relate to the
subject matter of this litigation.
4. All documents prepared by you, or by any insurer, representative, agent, or
anyone acting on your behalf, except your attorney(s), during the investigation of the incident in
question or any of the events or allegations described in the Complaint. Such documents shall
include any documents made or prepared up through the present time, with the exclusion of the
mental impressions, conclusions, or the opinions respecting the value or merit of the claim or
defense or respecting strategy or tactics.
5. All medical bills paid or alleged to have been paid by you, which relate to the
subject matter of this litigation.
6. All photographs of any item or thing involved in this litigation.
7. All statements as defined within Pa. R.C.P. No. 4003.
8. All statements and/or transcripts of interviews of fact witnesses obtained in this
matter.
9. All documents identified in your Answers to any set of Interrogatories
propounded by any party in this litigation.
10. All documents which you intend to rely upon or introduce at trial of this litigation.
HARTMAN & MILLER, P.C.
Date: tf / /7/ q <(
I I
By:
~
Jack M Hartman, Esquire
Supreme Court I.D. #21902
Amy C. Foerster, Esquire
Supreme Cl. I.D. #77986
126-128 Walnut Street
Harrisburg, P A 17101
(717) 232-3046
Attorney for Defendant, Michael A. Beaver
. ,
LINDA VonDRACH,
Plaintiff
v.
COURT or COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYL VANIA
MICHAEL A. BEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
CIVIL TER!v1 - LAW
NO: 98-584
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certifY that I am this day serving a copy of the
foregoing document upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States mail, first-class postage prepaid, as follows:
John E. Kusturiss, Jr., Esquire
Villari, Golomb & Honik
12 I S. Broad Street, Suite 910
Philadelphia, P A 19108
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
183l Chestnut Street, 2nd Floor
Philadelphia, PA 19103
(Counsel for Defendants. Wayne Matson and West Shore Taxi Company)
HARTMAN & MILLER, P.C.
By:
Dated: 1(/;7/ r ~
Amy C. oerster, Esquire
Supreme Court J.D. #77986
126-128 Walnut Street
Harrisburg, P A 1710 I
(717) 232-3046
Attomeys for Defendant, Michael A. Beaver
EXHIBIT B
HARTMAN & MILLER, P.c. ATTORNEYS AT LAW
126.128 WAlNUTSmmrr.I-'AltRlsIIURG. PA 17101 . Tm.I!I'1I0Nn (717) 232.3046' IVRITI!lt'S I"'TENSION 103
FACSIMII.fi (717) 232-3538' EMAII.I-I.M@p"onlino.com
J.ICK M. HARTMAN
OAVlD C. MII.l.fiIt
MfiUNDA S. 511001'
KfiVIN E. OsIlORNfi
DRfiW P. GANNON
AMY C. FOfilll;TfiR
OUVfiR C. OVfiRlANDI!R III
TARAA.MuCHA
Junc 24, 1998
Jill R. Mczyk, Esquirc
Mcdnick, Mczyk & Krcdo, P.C.
183 I Chcstnut Strcct
2nd Floor
Philadelphia, P A 19 I 03
Re: Linda VonDrach v. i\lichael A. Beaver, Wayne Matson and West Shore Taxi
Company
Cumberland Count). No: 98-584 (Civil)
Dear Jill:
Encloscd pleasc find thc Answcrs of Defendant. Michacl A. Bcaver. to Co-Dcfendants'
Request for Production of Documents.
My file reflects that on April 17, 1998, [served Intcrrogatories and Requests for
Production of Documents to be answered by your clients. Please provide your answers to these
discovery documents within fifteen (15) days so that we can continue to mOl'e this matter
forward. Likewise, by copy of this Ictter, [ am also requesting that Attomey Kusturiss providc
Plaintiffs Answers to our Interrogatories and Requests for Production of Documents within
fifteen (15) days.
Thank you for your attention to this matter. Please do not hesitate to contact me if you
have any questions.
~1iit
Amy C. Foerster
ACF/drw
Enclosure
cc: JOIUl E. Kusturiss, Jr., Esquire (w/cnc)
Stephen Granoff (Claim # 0101702 I 7986) (w/o enc)
EXHIBIT C
.
.
EXHIBIT C
.
.
.
.
EXHIBIT D
,
ArrORNM AT LAw
121 South Broad StlCCt
Ninth 11001
Phila.. PA 19107
215985.9177
la,: 215 985-4169
Pcter II. Villari
'Rubcn 1I,.nil
, Rl(hnrd II. Golomb
'k1m L KUlturlll. Jr.
JamcIII. DcSanlo
, Paul D. BrandcI
'~al~~n~ ~!t!@-"~L_
'Diannc M. Grcillcr
~\l (~'tln~l
Robcrta G. Diamond, R.N.
July 30. 1998
. .1J'o\I\lrmbn'\""'N\t1K.1r
AUG 0 8 1998
Amy C. Foerster, Esquire
Hartman & Miller, P.C.
126-128 Walnut Street
Harrisburg, P A 17 I 0 I
Re: VonDraeh v. Beaver, ct al
Cumberland Co, No.: 98-584/Civil
Our File No.: 96-345
Dear Ms. Foerster:
Enclosed plcase find Plaintiffs Interrogatories and Request for Production of Documents
directed to Defendant. Michael Beaver. Kindly have your client respond to same within the time
permittcd under the Rules of Civil Procedurc.
Also, please be advised that Plaintiffs response to Intcrrogatories and Request for
Production of Documents will be submitted to your office soon. Thank you for your anticipated
cooperation in this regard.
Very truly yours,
Villari. Golomb & Honik. P.e.
JEK/dp
Enclosures
cc: Jill R. Mezyk, Esquirc
Bclld~nlc. PA · tlarrisburg, P'\ 'Ilazcll~n. P'\ '1Iadd~nficld, NJ · Washingll1n, DC
EXHIBIT E
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HARTMAN & MILLER, P.c. ATTORNEYS AT LAW
SEP 11 1998 /~
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126 - 128 WAlNUT STRIiIIT. l-fARRISIIURG. PA 17101 . TEI.HI'II0NIi (717) 232-30411 . WRITI!R'S IiXTI!NSION 103
FAcslMll.n (717) 232-3538 . EMAIL H.M@p"nnlln".cum
JACK M. HARTMAN
DAVID C. MILLER
MfiUNDA S. SHOOP
KfiVIN E. OsUORNfi
DREW P. GANNON
AMY C. FOfiRSTfiR
OUVfiR C. OVfiRlANDER III
TARAA.MUCHA
Scptembcr 10, 1998
Curtis Long, Prothonotary
Cumberland County Courthouse
One Court House Square
Carlisle, PA 17013-3387
Re: Linda VonDraeh v. Michael A, Beaver, Wayne Matson and West Shore Taxi
Company
Cumberland County No: 98-584
Dear Mr. Long:
Enclosed please find the Answer of Jack M. Hartman, Esquire, and Amy C. Foerster,
Esquire, to Plaintiffs Motion for Sanctions. I am also enclosing an extra copy of this Answer
which I ask that you please time-stamp and retum to me in the enclosed self-addressed stamped
~nvelope. Because Plaintiffs Motion for Sanctions was filed as a Crossclaim included in her
Answer to Defendant's Motion for Judgment on the Pleadings, which is scheduled to be heard at
oral argument on October 7, 1998, I am providing a scparate copy of this Answer to the Court
Administrator by copy of this letter.
Thank you for your assistance with regard to this matter. Please do not hesitate to contact
me if you have any questions.
Very truly yours,
A&:t.~qr;
ACF:slr
Enclosures
cc: Court Administrator (w/enclosurcs)
John E. Kusturiss, Jr., Esquire (w/enclosurc)
Jill K. Mezyk, Esquire (w/enclosurc)
Stephen Granoff (Claim # 0101702 I 7986)(w/o cnclosures)
.
SEP 11 199~~
LINDA VonDRACH,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL TERM - LAW
MICHAEL A, BEAVER, WAYNE
MATSON and WEST SHORE TAXI
COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 1998, Plaintiffs Motion for
Sanctions against Jack M. Hartman, Esquire, and Amy C. Foerster, Esquire, is DENIED.
J.
26. Denied as stated. It is admittcd that on August 26, 1998, Plaintiffs counsclleft a
message on undcrsigned counsel's voicc mail citing Fox v. Byrnc, 525 A2.d 428 (1987),
indicating that undersigned counsel should withdraw her Motion based on that casc, or Plaintiffs
counsel would file a Motion for Sanctions. It is further admitted that undersigned counsel for
Defendant, Amy C. Foerster, Esquire, did indeed rcad the Eox casc on August 26, 1998, after
which she discussed the matter in detail with Jack M. Hartman, Esquire.
27. Denied as stated. It is admitted that in his voice mail message, Plaintiffs counsel
stated that undersigned counsel for Defendant, Amy C. Foerster, should withdraw her Motion
based on the Eox case, or Plaintiffs counsel would file a Motion for Sanctions, because of his
opinion that undersigned defense counsel is required to cite contrary legal authority to this Court.
It is specifically denied, however, that the Eox case renders Defendant's Motion "meritless".
Furthermore, pursuant to Rule of Professional Conduct No. 3.3(a)(3), undersigned counsel for
the Defendant is only required to cite contrary legal authority to the Court if opposing counsel
fails to do so. The Briefs regarding Defendant's Motion for Judgment on the Pleadings are not
yet due, nor has oral argument been held, and, therefore, Plaintiffs counsel's assertion that
undersigned counsel should be sanctioned for failure to cite "contrary legal authority" to this
Court is premature, as it is expected that Plaintiffs counselwiII address the Eox case, which
undersigned counsel does not concede is "directly adverse" to Defendant's position, in detail in
both his Brief and at oral argument.
28. Denied. Undersigned counsel for Defendant, Amy C. Foerster, left a message for
Plaintiffs counsel on his voice mail at approximately 9:00 a.m. on August 27, 1998, requesting
2
that hc contact hcr to discuss thc Eax casc. Plaintiffs counscl rcturncd undcrsigncd counscl's
tclcphone call on August 28, 1998. Plaintiffs Motion for Sanctions is datcd August 29, 1998,
subsequent to thc above-rcferenccd telephonc convcrsation. It is spccifically denicd that
undcrsigncd counsel did not rcspond to Plaintiffs counscl's suggestion that shc withdraw thc
Motion for Judgment on the Pleadings. A truc and correct copy ofthc filc mcmorandum
documenting thc above-refcrcnced tclephonc convcrsation is attachcd hercto as Exhibit "A", and
is incorporated hercin by rcference.
29. Denied as stated. In accordancc with 42 Pa, C.S.A. 98355, Jack M. Hartman,
Esquirc, and Amy C. Foerster, Esquire, counsel for thc Dcfcndant, belicvc that Defcndant's
Motion for Judgment on the Pleadings "is well-grounded in fact and is warranted by cxisting law
or a good-faith argument for thc cxtension, modification or rcversal of cxisting law; and that it is
not interposed in bad faith or for any improper purpose, such as to harass another, to maliciously
injure another or to cause unnecessary dclay or increasc in the cost of litigation." 42 Pa, C.S.A.
98355. It is specifically denied that Defendant's Motion for Judgment on the Pleadings is
meritIess.
3
WHEREFORE, Jack M. Hartman, Esquirc, and Amy C. Foerstcr, Esquirc, counsel for
Defcndant, Michael A. Beaver, rcspectfully request that this Honorable Court deny Plaintiffs
Motion for Sanctions and grant Defcndant's Motion for Judgment on the Plcadings.
Respectfully submitted,
HARTMAN & MILLER, P.C.
By:
k rtman, Esqui e
Supr me Court I.D. #21902
Amy C. Foerster, Esquire
Supreme Court I.D. #7i986
126-128 Walnut Street
Harrisburg, PA 17101
(7 I 7) 232-3046
Dated: q/ /O/f/S
Attorneys for Defendant, Michael A. Beaver
4
EXHIBIT A
!i
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T
E
MEMO
R
OFF
C E
To:
Filc
Amy C. Foerstcr
Linda VonDrnch v. Michacl A. Bcavcr (Motion for Judgcmcnt on thc Plcadings)
...
Waync Matson and Wcst Shore Taxi Company (#9800/0699)
Septembcr 2, 1998 (Dictatcd on August 25 and 28, 1998)
From:
Subject:
Date:
On 8/25/98, John Kusturiss telcphoncd to complain about our Motion for Judgmcnt on
thc Pleadings in the abovc-rcfcrenccd action. 1 indicated that wc would not bc withdrawing our
Motion. When I asked about the ourstanding discovcry that Plaintiff owes us, John said that hc
will provide thc Answcrs if we withdraw our Motion. On 8/26/98, John Kusturiss left a message
on my voice mail citing thc Eux casc, and indicating that if we did not withdraw our Motion
based on that case he would seck sanctions. His message indicatcd that I should tclcphone him
by the end of that day. I Icft a message for John Kusturiss on his voice mail at approximately
9:00 A.M. on 8/2798 instructing him to tclephone mc to discuss thc matter further.
John Kustsuriss rcturned my call on August 28, 1998. I indicated that aftcr reading the
Eux case, we were still comfortable with our position. I prescnted the proposal that he admit that
the injurics were all prc-existing, butthcn pursue an aggravation of pre-existing injuries claim.
He rejectcd this proposal and indicated that he would be filing for sanctions when he responded
to the Motion. He further slated that he will not rcspond to our outstanding discovery rcquests,
and told me to go ahead and file a Motion to Compel.
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LINDA VonDRACH,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL TERM - LAW
MICHAEL A. BEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
CRRTIFICA TR OF SRRVICE
I, Amy C. Foerster, Esquire, hercby certify that I am this day serving a copy of the
foregoing document upon the person(s) and in the manner indicated below, which service
satisfies the rcquirements ofthe Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States mail, first-class postage prepaid, as follows:
John E. Kusturiss, Jr., Esquire
Villari, Golomb & Honik
121 S. Broad Street, Suite 9 I 0
Philadelphia, PAl 91 08
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
183 I Chestnut Street
2nd Floor
Philadelphia, PA 19103
(Counsel for Defendants, Wayne Matson and West Shore Taxi Company)
Dated:
9/;oH~
HARTMAN & MILLER, P.C.
By A'!f.~"
Supreme Court I.D. #77986
126-128 Walnut Street
Harrisburg, PAl 7 I 0 I
(717) 232-3046
Attorneys for Defendant, Michael A. Bcaver
.~
26. Dcnicd liS slatcd. It is IIdmillcd thut on August 26, 1998, PllIintiffs counscllcft a
mcssllgc on undcrsigncd counscl's voicc mail citing Fox v. Aymc, 525 A2.d 428 (1987),
indicllting that undcrsigncd counsc1 should withdraw hcr Motion bas cd on that casc, or Plaintirrs
coun5cl would filc II Motion for Sanctions. It is furthcr admillcd that undcrsigncd counsc1 for
Dcfendant, Amy C. Focrster, Esquirc, did indccd rcad thc Ells. casc on August 26, 1998, aftcr
which she discusscd thc mallcr in dctail wilh Jack M. Hartman, Esquirc.
27. Denicd as statcd. It is admiltcd that in his voicc mailmessagc, Plaintiffs counsel
stated that undcrsigncd counscl for Dcfcndant, Amy C. Focrstcr, should withdraw her Motion
bascd on thc Ells. case, or Plaintiffs counscl would file a Motion for Sanctions, becausc of his
opinion that undersigned dcfense counscl is rcquircd to citc contrary Icgal authority to this Court.
It is specifically dcnicd, however, that thc Ells. casc rcnders Dcfcndant's Motion "meriUess".
Furthermorc, pursuant to Rule of Professional Conduct No. 3.3(a)(3), undcrsigned counsel for
the Defendant is only rcquired to citc contrary legal authority to thc Court if opposing counsel
fails to do so. The Briefs regarding Defcndant's Motion for Judgmcnt on thc Pleadings are not
yet duc, nor has oral argument bcen hcld, and, thereforc, Plaintiffs counsel's asscrtion that
undersigned counsel should be sanctioned for failure to cite "contrary legal authority" to this
Court is premature, as it is cxpectcd that Plaintiffs counsel will address the Eox case, which
undersigned counsel does not conccdc is "dircctly advcrsc" to Defcndant's position, in detail in
both his Brief and at oral argumcnt.
28. Denied. Undcrsigncd eounscl for Dcfendant, Amy C. Foerster, left a message for
Plaintiffs counsel on his voicc mail at approximatcly 9:00 a.m. on August 27, 1998, requesting
2
Ihut hc conlucl her 10 discuss the Eox cusc. I'luintifrs counscl rcturned undcrsigncd counscl's
telcphonc cull on Augusl28, 1998. Pluinlifrs MOlion for Sunclions is dulcd Augusl29, 1998,
subscqucnt to thc ubovc-refcrcnccd tclcphonc convcrsulion. It is spccificully dcnicd Ilml
undcrsigncd counsel did not rcspond 10 Plaintifrs counscl's suggcslion thaI shc wilhdraw thc
Motion for Judgmcnl on thc Plcadings. A truc und corrccl copy ofthc filc mcmorandum
documcnting thc abovc-rcfcrcnccd telcphonc convcrsation is aUachcd hcrclo as Exhibit "A", and
is incorporatcd hcrcin by rcfcrcncc.
29. Dcnied as statcd. In accordancc with 42 Pa. C.S.A. 98355, Jack M. Hartman,
Esquirc, and Amy C. Focrstcr, Esquirc, counscl for the Dcfcndant, bclicvc that Dcfcndant's
Motion for Judgmcnt on thc Plcadings "is wcll-groundcd in facland is warranted by cxisting law
or a good-faith argumcnt for thc cxtcnsion, modification or rcvcrsal of cxisting law; and that it is
not intcrposcd in bad faith or for any improper purposc, such as to harass another, to maliciously
injurc anolhcr or to causc unnecessary dclay or incrcasc in Ihc cost of litigation." 42 Pa, C.S.A.
98355. It is specifically dcnicd that Dcfendant's Motion for Judgment on thc Pleadings is
meritless.
3
'.
WHEREFORE, Jack M. Hartman, Esquirc, and Amy C, Focrstcr, Esquirc, counscl for
Dcfcndant, Michacl A, Bcavcr, rcspcctfully requcstlhatthis Honorablc Court dcny Plainti rrs
Motion for Sanctions and grant Dcfcndant's Motion for Judgment on thc Plcadings.
Rcspcctfully submittcd,
HARTMAN & MILLER, P.C.
By:
k . rtman, Esqui c
Supr mc Court I.D. #21902
Amy C. Foerstcr, Esquirc
Suprcme Court I.D. #77986
126-128 Walnut Strcct
Harrisburg, PA 17101
(717) 232-3046
Dated: q; /0/98
Attorncys for Defcndant, Michacl A. Beaver
!
4
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VILLARI GOLOMIJ & 1I0NIK
IJY: .JOIIN E, KUSTUIUSS, ,m,. ESQUIIU~
IIlENTIFICATION NO.: 28271
121 SOUTII mWAI) STREET
SUITE 910
1'H1LAIUo:L1'H1A,I'A 19107
(215) 985-9177
ATTORNEY 1101{ I'LAINTlI1I'S
LYNDA VON DRACH
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
MICHAEL BEAVER and
WAYNE MATSON and
WEST SHORE TAXI COMPANY
NO. 98-584 CIVIL
PLAINTIFF'S RESPONSE TO I)EFENDANT
MICHAEL IJE<\ VER'S MOTION TO COMI'EL I)lSCOVEIW
AND NOW comcs thc Plaintiff, Lynda VonDruch, by and through hcr attorncy, John E.
Kusturiss, Jr., Esquirc. and liIes thc within PlaintilTs Rcsponsc to Defcndant. Michacl Bcavcr's
Motion to Compcl Discovery, and in support thcrcof. avcrs as follows:
1. Plaintiff submitted answcrs to discovcry rcqucsts to Jill R. Mczyk, Esquirc.
attorncy for Dcfendants, Wcst Shorc Taxi Company and Waync Matson and to Amy C. Foerstcr.
Esquire, attorncy for Defcndant, Michacl Bcaver, on Scptembcr 3, 1998, a copy of thc
Certificatc ofScrvicc is attachcd hercto.
WIIERErORE, PlaiillilTn:spectfully requests that this HOliomblc Court entcr an Ordcr
dismissing Motion of Dcfendant, Michael A. Bcavcr, to Compel Plaintiffs Answers to
Intcrrogatorics and Rcqucst for Production or Documcnts.
Respcctfully submittcd,
John'lf~us uriss, Jr., Esquire
Attorncy for Plaintiff(s)
Date: 7 I/t! 7 r
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CIVIL TERM - LAW
LINDA VonDRACH,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND CO., PENNSYLVANIA
v.
MICHAELA. BEAVER, WAYNE
MATSON and WEST SHORE TAXI
COMPANY,
NO: 98-584
Dcfcndants
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
TO: Linda VonDrach, Plaintiff
c/o John E. Kusturiss, Jr., Esquirc
Villari, Golomb & Honik
121 S. Broad Street, Suite 910
Philadelphia, PA 19108
AND NOW, this ~ tl.. day of ~ ;:t:....ln cJ , 1998, upon consideration of the
Motion ofDcfcndant, Michacl A. Beavcr, to Compcl discovery, a Rulc is hercby issucd upon
Plaintiff, Linda VonDrach, to show what causc, ifany, shc has not to serve full and rcsponsivc
Answcrs to Moving Defendant's Intcrrogatories and Rcqucsts for Production of Documcnts,
including the provision of all medical records and rcports of all experts who will testify at trial,
or be subject to sanctions imposcd by this Court, including, but not limitcd to, thc following:
a. precluding Plaintiff from producing any cxpert witncss tcstimony against
Dcfendant, Michacl A. Beavcr, at thc timc of trial;
b. precluding Plaintiffs from introducing any testimony ns to nny subjcctmnttcr
addressed in thc aforcsaid discovery requcsts;
c. awarding counsel fccs incurrcd in filing thc instnnt Motion to Compcl nnd any
related proccdurcs; and
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C:OUIHY OF 1.:unnChLMII.'
VOLl ['r':!!.~lLL:_-WE!1.________.______
VS,
!,tEAVER l'It<~IIAEL It ET !\!~
1(r.NNE.IlL~GOS'3ERT
, '~di.:.;rlif OJ Dc'pul)' :-:;ttt.:JI'lJi oi
CUI1BERLAtlD County, Pc.'nn:.3j.l'J;:in...a, whc. l;l.~ing duly ~',I(Jrn aGCOrdlng
to 1a"', sa}'s, t.h~' IIlthir, COllfLt\JlJT
upon WEST SHORE TAXI cnnPANY
defendant, at 1300:')0 HOURS, on the 13th da}' c'f F,?bruary
'Was 3cr'.'ed
the.
1'398 at
2103 OLD HOLLOW RD.
tIECHAIHCSBUF:G, PI. 17855
, CUI1BEBLMID
County, Penns}'lvania, by handing t.o TIn STAIGER, SECRETARY AND
PERSON IN CHARGE
a truE' and attested CrJp}' of th." C0l1PLAlllT
together ",ith NOTICE
and at the ~13nh? time di.r12cting His att.cntion lo ttlt? cClntenls thereoL.
Sheriff's Costs:
Doc!:eting
Service:
Affidavit
Surch~rge
(j, ()I.:;)
, rj{j
.08
I~, O'L!
Sc' dL~"'0r~:r~~
h, 1 C101llUS h.Ll.ne, ~hE:'r-l.:tl
Sl~.00 VILLARI AND GOLOMB
02/17/1 ';.Jl38
by
SWOl-n arId 3ub3crj.bed ~0 b0i(11.~ '110
thl'~ .L1t(.., .,.... L." -W
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CASE NO: 199D-00~8~ P
COMMONWEALTH OF PENNSYLVANIA:
COUlITY OF CUl"lDERLMID
YOImRAGH LINDA
VS,
BEAVER MICHAEL A ET AL
...tAJHY CLARI<E
, Sheriff or DepuLy Sher"iif of
CUMBERLA!1[1 County, PL'nnsylvani<1, who tL'ing duly sworn according
to la'" saYD, the within COl'IPLAIIIT
upon BEAVER MICHAEL A
defendant, at 1448:00 HOUHS, on tho? 11th dai' of Febl-uarv
WuE served
the
1998 at
101 CLARlnGtl COURT
, CUI1BERLAlI['
LEI10YIIE, PA 17043
County, Pennsyl';ania, by hClnding to CLtdH Ii. BEAVER, FATHER OF
DEFT.
a true and attested copy of the COMPLAINT
together vith NOTICE
and at the S;'Jme time d~rec.tin~1 li:ll.. attj.?f1t~on to thE' contli:.nts thereo:f.
Sheriff's COSt3:
Dod:etl.ng
Service
Affidavit
~;l)rcharge
SI,J
CHjSWeryg~~~~
l,~. (~ilJ
'J.9::
.00
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h.
I hotnilG hl~ne" ::ltlE'l~}';t..t
~JJ.~~ VILLARI & GOLOMB
8~;i 1"111 998
by i~utY~1
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VILLAIU (;()LOMIl & 1I0NIK
IlY: .JOIIN E. KUSTUIUSS, ,m" ESQUllm
1.1). NO.: 28271
121 SOUTIIIlROAI) STI{EET
SUln: 910
l'IIILAm:U'IIIA, I'A 191117
(215) 985-9177
ATTORNEY FOR I'LAINTIFF
LINDA VON DRACH
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
MICHAEL BEAVER and
WAYNE MATSON and
WEST SHORE TAXI COMPANY
NO. 98-584 CIVIL
PLAINTIFF'S ANSWER TO DEFENDANTS, WAYNE MATSON
AND WEST SHORE TAXI COMPANY'S NEW MATTER
11. - 24. These allcgationsarc all dcnicd as conclusions of law, as such, require no answer.
To the cxtent that any factual allcgations havc bccn plcd, plaintiff hcrcby incorporates each and
evcry paragraph of the Complaint as ifset forth at lcngth herein.
WHEREFORE, Linda Von Drach dcmandsjudgmcnt in her favor in accordance with the
civil action.
VILLARI GOLOMB & HONIK
J . KUSTURISS, JR., ESQUIRE
Attorncy for Plaintiff
'.
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LINDA VonDRACH,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
MICHAEL A. SEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
CIVIL TERM - LAW
NO: 98-584
Dcfcndants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerstcr, Esquire, hercby ccrtify that I am this day serving a copy ofthc
forcgoing documcnt upon thc person(s) and in thc manner indicated below, which servicc
satisfics the requirements ofthc Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in thc United States mail, first-class postage prepaid, as follows:
John E. Kusturiss, Jr., Esquirc
Villari, Golomb & Honik
121 S. Broad Street, Suite 910
Philadclphia, PA 19108
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
183 I Chestnut Street, 2nd Floor
Philadelphia, PA 19103
(Counsc1 for Defendants, Wayne Matson and West Shore Taxi Company)
HARTMAN & MILLER, P.C.
By:
Dated: 5/6/Cfr:
Amy . Foerstcr, Esquirc
Supreme Court J.D. #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Attorneys for Defendant, Michael A. Beaver
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of luw or fact to which no rcsponsc is ncccssary. To thc cxtcnt that a rcsponsc is decmcd
ncccssary, thc avcnncnts arc dcnicd pursuant to Pa. R.C.P. 1029(c).
6. Aftcr rcasonablc invcstigation, Dcfcndant Bcavcr lacks knowlcdgc or infomlUtion
sufficicntto form a bclicfas to thc truth ofthc avcmlcnts containcd in Paragraph 60fPlaintirfs
Complaint; thc avcrmcnts arc thcrcforc dcnicd, and strict proofthcrcofis dcmandcd at trial.
7. Dcnicd as statcd. It is admittcd that Dcfcndant Bcaver was thc opcrator ofa
motor vehiclc involvcd in a collision on Fcbruary 20, 1996. Aftcr rcasonablc investigation,
Dcfendant Beaver lacks knowlcdgc or information sufficient to form a bcliefas to thc truth of the
averments contained in Paragraph 7 of Plaintiffs Complaint rcgarding Dcfcndants Matson and
Wcst Shore Taxi Company; thc averments arc thercfore denied, and strict proofthcreofis
demanded at trial. Thc remaining averments contained in Paragraph 7 of Plaintiffs Complaint
arc denied pursuant to Pa, R.C.P. 1029(e).
8-10. The averments contained in Paragraphs 8 through 10 of Plaintiffs Complaint arc
conclusions oflaw or fact to which no rcsponse is necessary. To the cxtcnt that a responsc is
deemed necessary, the averments arc denicd pursuant to Pa, R.C.P. 1029(e). By way of further
Answer, Defendant Bcaver hcreby incorporatcs by referencc Paragraph 14 of his New Maller as
though fully set forth herein.
WHEREFORE, Defendant, Michael A. Beaver, demands judgment in his favor and
against Plaintiff and all other parties, and that Plaintiffs Complaint be dismissed with prejudice
and costs of this action.
2
NEW MATTER
II. Thc avcnncnts sct forth in Plaintifrs Complaint fail to statc a claim or causc of
action against Dcfcndant Bcavcr upon which rclicf may bc grantcd.
12. Any claim or causc of action sct forth in Plaintifrs Complaint is barrcd by
opcration ofthc contributory/comparativc ncgligcncc of Plaintiff, as may be dcvelopcd during
diseovcry.
13. Any claim or causc of action sct forth in Plaintifrs Complaint is barrcd by
opcration ofPlaintifrs assumption of a known risk, as may be dcveloped during discovcry.
14. Any claim or causc of action sct forth in Plaintifrs Complaint is barrcd by the
applicable statute of limitations, including specifically, but not limitcd to, any claim or cause of
action which, by rcason of lack of specificity of pleading, is not directly or spccifically set forth
in the language of Plaintiffs Complaint, but which Plaintiffsceks to raise at a later time by
further amendment, claiming to havc preservcd such claim or causc of action within Plaintifrs
Complaint.
15. The injuries alleged to have been suffered by Plaintiffas a result of this accident
arc not the result of any negligence on the part of Defendant Beaver, but instead either existed
prior to February 20, 1996, or are the results of the pre-existing medical conditions of Plaintiff.
16. Any claim or causc of action set forth in Plaintifrs Complaint is barred or limited
by the Motor Vehicle Financial Responsibility Law, as codified at 75 Pa, C.S.A. ~1701 ~ ~., as
may be devcloped during discovery.
3
NOTICE TO PLEAD
WHEREFORE, Dcfcndanl, Michael A. Bcavcr, dcmandsjudgmcnl in his favor and
against Plainliff, and that Plaintifrs Complainl bc dismisscd with prcjudicc and cosls oflhis
aelion.
TO: Plaintiff, Linda VonDraeh
c/o John E. Kusturiss, Jr., Esquirc
Vi\1ari, Golomb & Honik
121 S. Broad Slrcet, Suitc 910
Philadelphia, P A 19108
You arc hereby notified 10 file a wriltcn responsc 10 thc cncloscd Answer and New Maltcr
wilhin twenty (20) days from scrvice hercofor a judgment may be entered against you.
4
NEW MATTER CROSSCI,AIM PllI{SUANT TO RULE 2252Cdl
1. IfPluintiffsuffcrcd thc danmgcs und injurics us ullcgcd in hcr Compluint, thcn
Dcfcndunt Bcavcr avcrs thut suid uccidcnt und injurics wcrc causcd by thc carelcssncss,
ncgligcncc und rccklcssncss ofCo-Dcfcndunts, Waync Matson und Wcst Shorc Tuxi Company,
for thc reusons sct forth in Plaintiffs Compluint, which is incorporatcd herein by rcfcrcncc
without admission as to thc truth of any of thc said avcrmcnts.
2. I I' thc accidcnt occurrcd as aforcsaid, thcn Dcfcndant Beavcr avcrs that Co-
Dcfendants, Waync Matson and Wcst Shorc Taxi Company, arc solcly Iiablc to Plaintiff, Iiablc
ovcr to Defendant Beaver, jointly or scvcrally liable to Plaintiff, or liable to Defcndant Beavcr
directly.
WHEREFORE, Defendant, Michacl A. Beavcr, demandsjudgmcnt against Co-
Dcfendants, Wayne Matson and Wcst Shorc Taxi Company, finding them to be solely liable to
Plaintiff, liable over to Defendant Beaver, jointly or scverally liable to Plaintiff, or liable to
Dcfendant Beaver directly.
5
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LINDA VonDRACH,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL TERM - LAW
MICHAEL A. BEAVER, WAYNE MATSON
and WEST SHORE TAXI COMPANY,
NO: 98.584
Dcfcndants
JURY TRIAL DEMANDED
ANSWER OF DEFENDANT, MICHAEL A. BEAVER, TO THE NEW MATTER
CROSSCLAIM PURSUANT TO RULE 2252(d) OF CO-DEFENDANTS, WAYNE MATSON
AND WEST SHORE TAXI COMPANY
AND NOW, comcs thc Dcfcndant, Michacl A. Bcavcr, by and through his attorncys, Hartman &
Millcr, P.C., and in rcsponse to Co-Dcfcndants' Ncw Matter Crossc1aim Pursuant to Rulc 2252(d), avers
as follows:
1-2. Thc avcrmcnts containcd in Paragraphs 1-2 ofCo-Dcfcndants' New Mattcr Crossclaim
pursuant to Rule 2252(d) arc dcnicd pursuant to Pa, R.C.P. J029(c).
WHEREFORE, Dcfcndant, Michacl A. Bcaver, demands judgmcnt in his favor and against Co-
Dcfcndants, Waync Matson and Wcst Shore Taxi Company, and all othcr parties, and that Co-
Dcfendants' Ncw Matter Crossclaim Pursuant to Rulc 2252(d) bc dismissed with prcjudice and costs of
this action.
Rcspcctfully submittcd,
HARTMAN & MILLER, P.C.
By:
Datcd:
-s- Ii ., / c;?;
Jack M. artman, Esquire
Supreme Court I.D. #21902
Amy C. Foerstcr, Esquirc
Suprcme Court I.D. #77986
126-128 Walnut Strect
Harrisburg, I' A 17 J 0 I
(7 I 7) 232-3046
Attorncys for Dcfendant, Michacl A. Bcavcr
LINDA VonDRACH,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL TERM - LAW
MICHAEL A. SEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
NO: 98-584
Dcfcndants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerstcr, Esquire, hereby certify that I am this day scrving a copy ofthc
foregoing document upon the person(s) and inlhc manner indicated below, which scrvicc
satisfies thc requircments of the Pennsylvania Rules of Civil Procedurc, by dcpositing a copy of
same in the United States mail, first-class postage prepaid, as follows:
John E. Kusturiss, Jr., Esquire
Villari, Golomb & Honik
121 S. Broad Street, Suite 910
Philadelphia, PA 19108
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mczyk & Kredo, P.C.
1831 Chestnut Street, 2nd Floor
Philadelphia, PA 19103
(Counsel for Defendants, Wayne Matson and West Shore Taxi Company)
HARTMAN & MILLER, P.C.
By: ~~~e!~ti
Suprcme Court J.D. #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Dated: :;-/;9/9<"('
Attomcys for Defendant, Michael A. Beaver
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REMIT CORPORATION, INC.,
PlaintilT
: IN T1-IE COURT OF COMMON PLEAS
: OF THE 9111 JUDICIAL DISTRICT
: CUMBERLAND COUNTY, PENNA.
VS.
THOMAS F, ALEXANDER, III
Delimdant
: CIVIL ACTION - LA W
: NO. 98-760 CIVIL
WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY: Kindly withdraw my appearance as attorney of record for
Plaintiff.
BY:
Ter
160 cst Main Street
Bloomsburg, PA 17815
(717)784-2200
Fax: (717)784-2222
Attorney I.D.#70324
ENTRY OF APPEARANCE
TO THE PROTHONOTARY: Kindly enter my appearancc as attorncy of record for PlaintilT.
SEIPLE LAW OFFICES
BY: bD~
R becca L. Warren, Esquire
lOW sl Main Street
00 sburg,PA17815
(7 784-2200
Fax: (717) 784-2222
Attorney I.D.#63669
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CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PUR~UANT TO RULE 4009.22
'f
,
IN THE MATTER OF:
COURT OF COMMON PLEAS
{,
,
)
LISA K, SMYSER, FRANK H. SMYSER, ET AL
TERM, 0000
-VS-
CASE NO: 98-855 CIVIL
EST. OF GEORGE T, FAHNESTOCK, ET AL
As a prerequisite to service of a subpoena for documents and things pursuant
to Rule 4009,22
MCS on behalf of DONALD R. DORER, 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,
I
,
I
(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: 5/21/98
'J7'_~tPt?,@ J.UL,
DONALD R. DORER, ESQUIRE
Attorney for defendant
DEll-039l27 S6703-LO~
.
..
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
IN THE MATTER OF. COURT OF COMMON PLEAS
LISA K, SMYSER, FRANK H. SMYSER, ET AL TERH, 0000
-VS- CASE NO. 98-855 CIVIL
EST, OF GEORGE T. FAHNESTOCK, ET AL
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
HARLEYSVILLE INSURANCE CO.
INSURANCE
TO. ANDREA C. JACOBSEN, ESQUIRE
MCS on behalf of DONALD R. DORER, ESQUIRE intends to serve a subpoena
identical to the one that is attached to this notice, You have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made the subpoena
may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure
4009.24, Complete copies of any reproduced records may be ordered at your
expense by completing the attached counsel card and returning same to MCS or
by contacting our local MCS office.
DATE. 5/01/98
MCS on behalf of
DONALD R. DORER, ESQUIRE
Attorney for DEFENDANT
CC: DONALD R. DORER, ESQUIRE
SUE HAVERSTICK
- 98-026
- 5837B6021700159
Any questions regarding this matter, contact
THE MCS GROUP, INC,
1601 MARKET STREET
#800
PHILADELPHIA PA 19103
(215) 246-0900
DE02-063784 56703-C02
'. .
~u:l'lI OF PDlNSyy..vJ\NIl\
COOl'ITY OF aJMBERIl\ND
LISA K. SMYSER, FRANK H. SMYSF.R, F.T AL:
File No.
98-855 CIVIL
VS
EST. OF GF.ORGF. T. FAHNF.STOCK, ET AL
SUBPOENA TO PRoou:::E ocx:::lJ'1E:NTS OR 11-11 NGS
FOR 0 I SCOVERY PURSUANT TO RULE 4009.22
CUSTODIAN OF RF.CORDS FOR: HARLEYSVILLE INSURANCE COMPANIES
(Name of Person or Entity)
Within twenty (20) days after service of this
~oduce the following documents or things:
subpoena, you are ordered by the court to
SEF. ATTACHED
t _ MCS GROUP INC.
1601 MARKF.T STREET SUITE 800 PHILADELPHIA PA 19103
(Address)
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You may deliver or mail legible copies of the documents or produce things requested by
;his subpoena, together with the certificate of carpliance, to the party making this
-equest at the address listed above. You have the right to seek in advance the reasonab Ie
)Cst of preparing the copies or producing the things sought.
I f you fail to produce the docunents or things required by this subpoen'.l. within twenty
(20) days after its service, the party serving this subpoena way seek a court order
~elling you to ccrply with it.
11-115 SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLCNlING PERSON:
NAME: DONALD R. DORER, F.SQUIRE
ADDRESS: 214 SENATF. AVENUE, SUITE 503
CAMP HILL PA 17011
TELEPHONE: (215) 246-0900
SU'REI'E CXllK<T 10 #
ATTORNEY FOR: DEFF.NDANT
DATE:
o (:\A; Q d4-M /cn'8
Sea 1 ot" the Court I
BY THE COURT:
prot~~~erf:'~~vision
~o.. <0 \rv~VID."\[).c)q
Deputy
(Eft. 1/91)
EXIJLANATlON 01<' REQUIRED RECORDS
I
,
,
"
,
TO: CUSTODIAN OF RECORDS FOR:
HARLEYSVILLE INSURANCE CO,
2700 COMMERCE DR,
HARRISBURG, PA 17110
RE: 56703
LISA K. SMYSER
D/O/L: 2/15/96 POLICY # 44201778
COpy OF THE ENTIRE FIRST PARTY INSURANCE FILE.
Any and all claims files.
Dates Requested: up to and including the present.
Subject: LISA K. SMYSER
513 GRAHAM WOODS RD., CARLISLE, PA 17013
Social Security #: 160-56-5932
Date of Birth: 08-13-62
Date of Loss: 02-15-96
5U10-136864 56703 -LO ~
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"A", and is incorpDrutcd hcrcin by rcfcrcncc.
5. Plainliffallcgcs that as a rcsult ofthc abovc-rcfcrcnccd automobilc accidcnt, shc
"sustaincd injury to hcr back including boncs, musclcs, ligamcnts and discs (hcrcof, injury to hcr
Icg as wcll as various othcr injurics and conditions as may bc cstablishcd, lInd injury to thc
ncrvcs and ncrvous systcm causing Plaintiff to cndurc pain and suffcring and to losc timc from
Plaintiffs usual dutics, activitics and occupation, causing a loss of earning and carning capacity
and to incur debts and othcr obligations for mcdicinc and medical trcatmcnt; all of which may bc
pcrmanent." (Complaint, '110.)
6. On or about May 21,1998, Movant filed an Answer and New Mattcr to Plaintiffs
Complaint, with a New Matter Crossclaim against Co-Defcndants pursuant to Pa, R.C.P.
2252(d).
7. Movant's New Matter was endorsed with a Notice to Plead directcd to Plaintiff.
8. Plaintiffs Answer to Movant's New Mauer was due on Junc 10, 1998. Sce Pa,
R.C.P. 1026(a).
9. Plaintiff has failcd to respond to Movant's Ncw Mattcr, and no such rcsponsc
appears on the Docket. A true and correct copy of the Docket Entries in this mattcr as of July 22,
1998, is attached hereto as Exhibit "B", and is incorporated herein by rcference.
10. According to Pa, R.C.P. 1029(b), "[aJverments in a plcading to which a
responsive pleading is required are admitted when not denied specifically or by ncccssary
implication."
2
11. Whcn a plaintiff fails to rcply within thc prescribcd time period to n dcfcndnnt's
Ncw Mallcr, which was cndorscd with a Noticc to Plcad, thc avcnncnts containcd in thc Ncw
Mallcr which rcquircd a rcsponsc arc dccmcd ndmittcd. Edmond v. Southcastcrn Pn. Trnnsp.
Authority, 651 A.2d 645, 647 (Pa. Commw. 1994); McConnick v. Allcl!hcny Gcncral Hospital,
364 Pa, Supcr. 210, 216.17, 527 A.2d 1028, 1032 (1987).
12. Paragraph 15 of Movant's Ncw Maller allcges that "[t]hc injurics allcgcd to havc
bccn suffered by Plaintiff as a rcsult of this accidcnt arc not the result of any negligence on thc
part of Defendant Beaver, but instead eithcr cxisted prior to February 20, 1996, or arc thc results
ofthe prc-existing medical conditions of Plaintiff." (Movant's Answcr and New Matter, "15.) A
true and correct copy ofthe Answer and New Maller of Defendant, Michacl A. Beaver, to
Plaintiffs Complaint, with New Maller Crossc1aim Pursuant to Rule 2252(d), is allached hercto
as Exhibit "C", and is incorporatcd herein by referencc.
13. Because Plaintiff failed to reply to Paragraph 15 of Movant's New Maller, which
contains a factual allegation and requires a rcsponse, the averments contained thercin are deemed
admitted by operation of law.
14. Plaintiff has admitted, therefore, that the injuries which she alleges to havc
suffered as a result of this automobile accident actually existed prior to February 20, 1996, or
were the result of her pre-existing meJical conditions.
15. The well-establi~hed elements of negligence includc (a) a duty or obligation
recognized by law requiring the actor to conform to a certain standard of conduct, (b) a failurc to
3
.
conform to thc stllndard rcquircd, (c) a cllusal conncction bctwccnthc failurc and thc rcsulting
injury, and (d) actual injury rcsulting to thc intcrcst ofanothcr. O'Ncal v. Dcpl. of Army. 852 r.
Supp. 327, 335 (M.D. Pa, 1994).
16. As a rcsult ofhcr admission, Plaintiffhas failcd to cstablish both thc third and
fourth clcmcnts for a causc of action bascd onncgligcncc.
17. Spccifically, Plaintiff has failcd to sct forth a causal conncction bctwccn an
allcged breech by Movant ofa duty owed to Plaintiffand any injury suffcrcd by Plaintiffas a
rcsult of that br>lcch, and, in fact, has not cstablishcd that shc suffcred any injury as a rcsult of
this accident at all.
IS. Bccausc Plaintiffadmittcdly did not suffcr any injury arising out of this accidcnt,
thcre is no genuine issllc ofmatcrial fact to bc prcscnted to thc jury at trial.
19. Consequently, Movant is cntitlcd to the cntry of Judgmcnt on thc Plcadings in his
favor and dismissal of Plaintiffs claim against him.
20. On or about February 23, 1995, Co-Defcndants, West Shorc Taxi Company and
Waync Matson, filed an Answcr and New Mattcr to Plaintiffs Complaint, with a New Matter
Crossclaim against Movant pursuant to Pa, R.C.P. 2252(d), alleging as follows:
I. Ifthc Plaintiffsuffcred the damagcs and injuries as allegcd in the
Plaintiffs Civil Action Complaint, thcn Answering-Defendants avcr that said
accident and injuries wcrc caused by the carelessness, negligencc and rccklcssness
of Co-Defendant, Michacl Bcaver, for reasons sct forth in Plaintiffs Complaint
incorporated hcrein by rcference without admission as to the truth of any of the
said avcrments.
2. If the accident occurrcd as aforcsaid, then Answcring-Dcfendants
4
EXHIBIT A
6, At all times relcvant hercin, defcndant, Wayne Matson WIIS the agc.nt, scryant,
workmnn ahd/orcmplo)'ec of West Shorc Taxi Company acting within the scope and
coursc of said relationship.
7. On or about February 20,1996, defendant Michael A. Beavcr was the operator ofa
motor vchiclc that was involvcd in a collision with a motor vchiclc owncd by Wcst
Shorc Taxi Company and opcratcd by Wayne Matson with the pcnnissionand conscnt
of West Shore Taxi Company. The collision occurrcd at Louisc Drive and Russmoyne
Road in Lower Allen Township, Cumberland County, Pennsylvania.
8. Plaintiff, Linda VonDrach, was an occupant ofthc motor vehicle operated by Michael
A. Beaver at the time of the collision resulting in the injuries and damages set forth in
detail hereinafter.
9. The accident aforesaid was caused by thc negligence and carelessness of defendants
in that Michael A. Beaver and Wayne Matson did:
(a) fail to have said motor vehicle under proper and adequate control at the
time of the collision;
(b) operate said motor vehicle at a high and excessive ratc of speed under the
circumstances;
(c) fail to give proper and sufficient warning of the approach of said motor
vehicle;
(d) operate said motor vehicle without due regard for the rights, safety and
position of Linda VonDrach;
(e) operate said motor vehicle in such a manner that it could not be brought
to a stop within the assured, clear distance ahead;
(f) violate the statutes of the Commonwealth of Pennsylvania pertaining to
the operation of motor vehicles; and
(g) otherwise, fail to exercise caution and due care.
10. As a result of the negligence and carelessness aforesaid, Linda VonDrach, sustained
injury to her back including bones, muscles, ligaments and discs thereof, injury to her
leg as well as various other injuries and conditions as may be established, and injury
to the ncrves and nervous systcm cnusing plaintiff to cndurc pain and suffcring and to
lose.tinte from plaintiff's usual duties, activitics and occupation, cnusing a loss of
earnings and earning capacity and to incllr debts and obligations for mcdicinc and
medical trcatment; all of which may bc pcrmanent.
1
WHEREFORE, Linda VonDrachclaimsdamages not in exccssof$25,OOO.00 from Michael
Beaver, Wayne Matson nnd West Shore Taxi Company jointly and severally.
VILLARI GOLOMB & HONIK
Dated: /-1'-1-1 T
STURlSS, JR.
y for Plaintiff
EXHIBIT B
PYS510
1998-00584
Cumbp~land County prothonotary's ~ffice Page
Civil Case Inguiry
VONDRACH LIND.. (VS) BEAVER MICHAEL A ET A~
1
Reference No..: Filed:....:..: 2/02/1998
Case Type.....: COMPLAINT Time,.....,.,: 14:19
Judgment. . . ... . ': '. ,00 Execution Date 0/00/0000
Judge Assigned: Sat/Dis/Gntd.. 0/00/0000
Jury Trial....
Higher Court 1
Hiaher Court 2
..**...***......***..***...**********************.*****,...***..................
General Index Attorney Info
VONDRACH LINDA P~AINTI?F KUSTURISS JOHN E
1768 MAIN STREET APT A
LINSBURN PA 17055
BEAVER MICHAEL A DEFENDANT HARTMAN JACK M
101 CLARKTON COURT
LEMOYNE PA 17043
MATSON WAYNE DEFENDANT MEZYK JILL R
111 BRIDGE STREET
NEW Cm~EERLAND PA 170;0
WEST SHORE TAXI COMPANY DEFENDANT MEZYK JILL R
3525 HARTSDALE DRIVE
CAMP HILL PA 17011
"
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ti
1
,
**..............*.......**..***..****..**...**........**........................
* Date Entries *
********************************************************************************
02/02/98 COMPLAINT - CIVIL ACTION
02/17/98 SHERIFF'S RETURN FILED
Litigant.: BEAVER MICHAEL A
SERVED : 2111/98 COl~PL
Costs....: $33.92 Pd By: VILLARI & GOLOMB 02/17/1998
02/17/93 SHERIFF'S RETURN FILED
Litigant.: MATSON WAYNE
SERVED : 2113198 COMPL
Costs....: $19.44 Pd By: VILLARI & GOLOMB 02/17/1998
02/17/98 SHERIFF'S RETURN F~LED
Litigant.: WEST SHORE TAXI COMPANY
SERVED : 2113198 CO~PL
Costs....: $12.00 Pd By: VILLARI AND GOLOMB 02/17/1998
ENTRY OF APPEARANCE FOR WAYNE MATSON AND WEST SHORE TAXI COMPANY BY
JILL R MEZYK ESQ
DEFENDANTS WAtNE ~~~SON AND WEST SHORE TAXI'S ANSWER TO PLAINTIFF'S
COMPLAINT WITH NE'/1 ~l\TTS~~, AND NEW MATTER CROSSCLAIM PURSUANT TO
RULE 2252(D\
ENTRY OF APPE]l.~NCE FOR IGCHAEL A BEAVER BY JACK M HARTMAN ESQ
PLAINTIFF' S AHS~IER 'ro DEFENDANTS WAYNE MATSON AND WEST SHORE TAXI
COMPANY'S NEW ~~TTE~
STIPULATION
ANSWER AND NE^ MAT~2~ OF DEFENDANT MICHAEL A BEAVER TO PLAINTIFF'S
COMPLAINT WITH NEt" :.;.1.TT2~'~ CRCS5CLIAM PURSUANT TO RULE 22521D\
ANSWER OF DEFENDANT MICHAEL A BEAVER TO THE NEW MATTER CR05SCLAIM
PURUSANT TO RULE 2252(D) OF CQ-DEFZNDANTS WAYNE MATSON AND WEST
SHORE TAXI CQl.l:?AKY
OS/28/98 DEFENDANTS WA7~E MATSON AND WEST SHORE TAXI'S ANSWER TO
CO-DEFENDANTS \~EW :.:i\':::'TEH CR03SCLAIM PURSUANT TO RULE 2252iD1 I
******************'t***ww*****~,:**~.t***k*~************************** * ********** '
* E~crow Information * l
* Fees.. Debits 3aa 6al '.?vmts/Ad; End Bal * i
*******.***************.***~*.**'v~*****n.******~******************************* ;
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02/23/;8
02/23/98
03/16/33
04/15/9-3
05/07/9fl
OS/21/:1:.:.
OS/21/98
COMP,(,;,INT
TAX O~'I CMPLT
SETTLEMENT
JCP E':::E
35.00
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5,;0
5.~0
35.00
.50
5.00
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* End of Caae IniormaMlon *
*****~~~*********ww***~WWW~~WAA~W~iA*W*~WAW**************************************
TRUE COpy FROM RECORD
In Testimony wl-.oreol, I here unto set my hand
and the seal of said c~~ Ca~\IS\e, Pa,
ThiG ,2)1.:" day of ~~ ' ,t9 'i 7
. (1'....;.11_- C. : Lo../ A.iAC,.
EXHIBIT C
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LINDA VonDRACH,
COURT OF C01\~ION PLEAS
CUMBERLA,,,U COUNTY,
PENNSYLVA,"'A
Plaintiff
v.
CIVIL TERM. LAW
MICHAEL A. BEAVER, \VA YNE
MATSON and WEST SHORE TAXI
COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMAl';1)ED
A:\'SWER A:\'D :\EW i\IA TTER OF DEFENDA:\'T, i\IICHAEL A. BEA \'ER, TO
PLAI:\'TIFF'S CO:\IPLAI:\'T, WITH NEW MATTER CROSSCLAI:\I Pl'RSUAi'iT TO
RULE 2252(d)
..\:\'D i'iOW. comes the Defendant. Michael A. Beal'er. by and through his attorneys.
Hartman 8: 1\liller. P,C.. and in response to Plaintiffs Complaint avers as folloll's:
A\'SWER
I, After re:lsonable inl'cstigation. Defendant Beal'cr lacks knowledge or information
s::tficient to fornl a bdiefas to the truth ofthc al'erments contained in Paragraph I of Plaintiffs
Complaint; the al'erments arc therefore denied. and strict proofthercofis demanded at trial.
2. Admitted.
3-4. After reasonable investigation. Defendant Beavcr lacks knoll'ledge or information
s::fiicient to fornl a belief as to the truth of the averments contained in Paragraphs 3 and 4 of
P::!intiffs Complaint: the al'crnlents are therefore denied. and strict proof thereof is demanded at
t::al.
-.
5. The averments contained in Paragraph 5 of Plaintiffs Complaint are conclusions
,
i
~ ~ ;
'. . .
of law or fact to which no rcsponsc is neccssary. To the cxtent that a rcsponse is dcemcd
neccssary, thc avcrments are dcnied pursuant to Pa, R.C.P. 1029(c).
6. Aftcr rcasonable investigation, Dcfcndant Bcaver lacks knowledge or information
sufficient to form a bdiefas to thc truth ofthc avcrmcnts containcd in Paragraph 6 of Plaintiffs
Complaint; the avcrmcnts are therefore denied, and strict proofthcreofis dcmandcd at trial.
7. Dcnicd as stated. It is admitted that Defendant Bcavcr was thc operator of a
motor vehiclc inl'olvcd in a collision on February 20,1996. After rcasonable investigation,
Dcfcndant Bcal'cr hIcks knowkdgc or information sufficicnt to form a bclicf as to the truth of the
al"cmlcnlS containcd in Paragraph 7 of Plaintiffs Complaint regarding Defcndants Matson and
"'cst Shorc Taxi Company: the al'cnncnts are thcrefore dcnicd. and s:rict proof thcrcof is
dcmanded atltia!. Thc rcmaining avcmlcnts containcd in Paragraph i of Plaintiffs Complaint
arc dcnicd pursuant 10 Pa. R,C.P. 1029(c),
S-I I), Thc al'cnncnts contained in Paragraphs S through I') of Plainti ffs Complaint arc
conclusions of law or fact to which no rcsponsc is neccssary, To the extent that a rcsponsc is
deemed neccssary. thc al'enncnts are dcnied pursuant to Pa, R.C.P, I029(e), By way of further
Answer, Defcndant Bea\'er hercby incorporatcs by rcfcrencc Para:;raph l~ of his l\ew Matter as
:hough fully set forth hercin.
WHEREFORE. Dcfcndant, Michael A. Beaver, demands judgment in his favor and
against Plaintiff and all othcr parties, and that Plaintiffs Complaint bc dismissed with prejudice
and costs of this action.
.-
2
NEW MATTER
11. Thc avcrments sct forth in Plaintiffs Complaint fail to state a claim or causc of
action against Defendant Bcaver upon which relicI' may be grantcd.
12. Any claim or causc of action sct forth in Plaintiffs Complaint is barred by
opcration of thc contributory/comparative negligence of Plaintiff, as may bc dcveloped during
discovery.
13. Any claim or causc of action set forth in Plaintiffs Complaint is barred by
opcration of Plaintiffs assumption ofa known risk, as may be dCI'e!opcd during discovery.
14, Any claim or causc of action set forth in Plaintiffs Complaint is barrcd by the
applicablc statute of limitations. including specifically. but not limitcd to, any claim or cause of
action which. by reason of lack ofspccificity of pica ding. is not directly or specifically set forth
ir. the language of Plaintiffs Complaint. but which Plaintiffsccks to raise at a later timc by
iur;hcr amcndmcnt. claiming to have prcscrvcJ such claim or cause oiaction within Plaintiffs
Complaint.
15. Thc injurics allcged to havc bcen suffered by Plaintiiias a rcsult of this accidcnt
a~~ not the result of any ncgligence on the part of Dcfendant Bcavc~. but instcad eithcr existed
;;;-;or to February 20, 1996. or are the results of thc pre-existing medical conditions of Plaintiff.
16. Any claim or cause of action set forth in Plaintiffs Complaint is barred or limited
';:.' the Motor Vehicle Financial Responsibility Law, as codified at i5 Pa, C.S.A. S I iOl ~~.. as
::-:ay be developed during discovery.
.--
3
. .
WHEREFORE, Defcndant, Michael A. Beaver, demands judgment in his favor and
against Plaintiff, and that Plaintiffs Complaint be dismisscd with prejudicc and costs of this
action.
NOTICE TO PI.EAD
TO: Plaintiff, Linda VonDrach
c/o Jolm E. Kusturiss, Jr., Esquire
Vil1ari, Golomb & Honik
111 S. Broad Street, Suite 910
Philadelphia, P A 191 OS
You arc hereby notilied to lile a written rcsponse to the enclosed Answcr and New Matter
within twenty (10) days from service hereof or a judgment may be e:ltered against you.
-.--
4
i.
NEW MATTER CROSSCLAIM PURSUANT TO RULE 225Ud)
1. If Plaintiff suffered thc damages and injuries as alleged in hcr Complaint, then
Defcndant Beaver avers that said accident and injuries were caused by the carelessness,
negligence and recklessness of Co-Dc fend ants, Wayne ~[atson and West Shorc Taxi Company,
for the reasons set forth in Plaintiffs Complaint, which is incorporated herein by reference
without admission as to the truth of any of the said al'ermcnts.
2. Ifthc accident occurred as aforesaid, then Defendant Bcaver avers that Co-
Defcndants, Waync Matson and West Shore Taxi Company, arc solcly liable to Plaintiff. liable
oler to DefenJanl Beal'er. jointly or sel'crally Iiablc to Plaimiff. or liablc to DefcnJant Bcal'er
directly,
WHEREFORE. Defendant, ~(ichael A. Beal'er. dcmands judgmcnt against Co-
Dcti!nJants. Wayne :\Iatson anJ West Shorc Taxi Company. finding thcm to be solely liable to
?:aintiff. liable OI'Cr to Dcli!nJant Beal'er.jointly or sel"crally liablc to Plaintiff: or liable 10
D-denJant SCal'er dircctly,
. .
- .
5
. .
NOTICE TO PI.EAD
TO: Co-Defendants, Wayne Matson and West Shore Taxi Company
c/o Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
1831 Chestnut Street, 2nd Floor
Philadelphia, P A 19103
You are hereby notified to file a written response to the enclosed New Matter Crossclaim
within twenty (20) days from service hereof or ajudgment may be entered against you.
Respectfully submitted.
By:
1~~0
- ,
Jack M. Hanman. Esquire
Supreme Coun I.D. #21902
Amy C. Foerster. Esquire
Supreme Coun I.D. #77l)S()
126-128 Walnut Street
Harrisburg. PAl I 101
(71 11232.3046
HART1\I.-\:\ & ~lILLER. P.C.
.
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Attorneys for Defendant. ~lichael A. Beaver
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6
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. .
LINDA VonDRACH,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL TEIU"I - LAW
MICHAEL A. BEAVER, WAYNE
~IATSON and WEST SHORE
TA.XI COMPANY,
NO: 98-584
JURY TRIAL DEMAJ'IDED
Defcndants
CERTIFICATE OF SERVICE
1. Amy C. Focrstcr. Esquirc, hcreby ccrtify that 1 am this day scrving a copy of the
forcgoing documcnt upon the person(s) and in the manncr indicatcd below, which scrvicc
;;!tisties the rcquirements of the Pennsylvania Rules of Ci\"i\ Procedure. by depositing a copy of
;;!!1le in thc l'nited States mail. first-class postage prepaid. as follo\\"s:
John E. Kusturiss. Jr.. Esquirc
\'illari. Golomb & Honik
121 S. Bro.ld Street. Suite 91 I)
Philadclphia. PA I'Jl08
(Counsel for Plaintiff. Linda \'onDrachl
Jill R. Mezyk, Esquirc
~lcdnick. ~lezyk & Kredo. P.c.
1831 Chestnut Street. 2nd Floor
Philadelphia. PA 19103
(Counsel for Defendants, Wayne Matson and West Shore Taxi Company)
HARD-I.-\..'\ & MILLER. P.c.
By:
J#tt f!. /i~~~r;
Amy c;!.Foerster, Esquire <._
Supreme Coun I.D. li'77986
121J-128 Walnut Street
Harrisburg, PAl i 101
(717) 232-3046
~:.:ed:
<);? 9/ 'f y---
Attorneys for Defendant. :<.tichael A. Bea';er
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NOT:tCE TO PLEAD
To: plaintiff and Co-Defendant
You are hereby noticed to plead to
the within New Hatter within twenty
(20) daY3 of service hereof or a
judgment may be entered against you.
;;t:(~4.~r
Attorney or Defeo ts
-
MEDNICK, MEZn: " 1Ql,EIl0, P.C.
BY: JILL R. HEZn:, ESQUIRE
ATTORNEY :t.D.# 69631
1717 SPRING GARDEN STREET
PBILADELPBIA, PA 19130
(215) 563-3303
A'l"rORNEY FOR DEPENDAllTS
WAYNE MATSON and
WEST SBORE TAXI COMPANY
LINDA VON DRACK .
COURT OF COMMON PLEAS
C'OKBERLAND co'lJNT'l
NO. 98-584 C:tV:tL
v.
H:tCBAEL BEAVER and
WAntE MATSON and
WEST SBORE TAX:t COMPANY
:
:
:
DEFENIl~S, 1'1= MATSON AND WEST SBORE TAXI I S lUtSWER
TO pu..INTIPli' I ~ COMPLAINT WIn NEW MAT'l'ER
ANt! NEH MATTER C1l,0 SCLAIH PURSUANT TO R.ULE 2252 (d)
1-2.
Denied.
After reasonable investigation answering
defendants lack sufficient knowledge and/or information to form a
belief as to the truth or falsity of the averments of this
paragraph and as such, the truth of said averments are denied and
strict proof thereof is demanded at the time of trial if relevant.
3 -4. Admittoed.
5 . Denied.
6 . Denied.
After reasonable investigation answering
defendants lack sufficient knowledge and/or information to form a
belief as to the truth or falsity of the averments of this
paragraph and as such, the truth of said averments are denied and
........-^..
strict proof thereof is demanded at the time of trial if relevant.
7-10. Denied.
WHEREFORE, answering defendants demand that the Complaint be
dismissed with assessment of attorney's fees and costs.
NEW MAT'l'ER
Comes now answering-defendants and aver the following, if
relevant:
11. Plaintiff's Complaint is barred and/or limited due to the
plaintiff's comparative negligence.
12. plaintiff's Complaint is barred and/or limited due to the
plaintiff's contributory negligence.
13. Plaintiff's Complaint is barred and/or limited due to the
plaintiff's assumption of the risks involved.
14. Plaintiff fails to state a claim upon which relief can be
granted.
15.
Plaintiff has violated the applicable statute of
limitations.
16. The alleged accident was caused by a sudden emergency
over which answering-defendants had no control.
17. Answering-defendants assert all of the defenses in the
Pa. Motor Vehicle Financial Responsibility Law, 75 l?a C. S.A.
Section 1701 et seq.
18. Plaintiff's Complaint is barred and/or limited pursuant
to the provisions of the Pennsylvania No-Fault Motor Vehicle
Insurance Act and/ or the Pennsylvania Motor Vehicle Financial
Responsibility Law and/or the recent amendments to the Motor
Vehicle Responsibility law identified as Act 6, of which are
.... _t, .
incorporated herein by reference or in the alternative are limited
to non-economic losses only.
19. plaintiff has failed to mitigate her damages.
20. The accident and injuries complained of by plaintiff were
caused by a person(s) other than answering-defendants over which
they had no control.
2~. The defense asserts the bar of Limited Tort in that:
(al The plaintiff is barred from bringing suit in that
the Plaintiff was a named insured or an insured in a motor vehicle
insurance policy whereby the "limited tort" option was elected
pursuant to the Pennsylvania Motor Vehicle Financial Responsibility
Law, 75 Pa. C.S.A. Section 1701 et seq., and/or plaintiff was a
named insured or an insured whereby a "verbal" threshold was
elected at the time of the accident.
(bl It is further averred that the plaintiff was not
named insured of any policy of motor vehicle insurance under the
Full Tort option of the Motor Vehicle Financial Responsibility Law,
75 Pa.a C.S.A. Section ~70~ et seq. at the time of the accident;
(c) In the alternative it is averred that the plaintiff
was the legal and/or equitable owner of a private passenger motor
vehicle and did not maintain a policy of motor vehicle insurance
and/or was not covered by any form of financial responsibility as
defined in the Motor Vehicle Financial Responsibility Law. 75 Pa.
C.S.A. Section 170~ et seq at the time of the accident and as such
are bound by the Limited Tort Option;
(d) Under the "limited tort" option, the plaintiff
cannot recover from the defendant unless she sustained a serious
.. "',
injury as defined in the Motor Vehicle Financial Responsibility
Law, Pa. C.S.A. Section 1701;
(el The plaintiff did not sustain a serious injury since
she did not sustain an injury resulting in death, serious
impairment of a bodily function or permanent serious disfigurement.
22. The defense asserts the bar that delay damages may not be
found because:
(al Rule 238 of the Pennsylvania Rules of Civil
Procedure as amended and adopted by the Pennsylvania Supreme Court
is unconstitutional under the Pennsylvania and United States
Constitutions;
(b) If there is a judicial determination that damages
pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure
may be applied, then liability for any damages imposed by Rule 238
shall be suspended during a period of time that there was any delay
by the failure of the plaintiff to provide discovery and/or the
Court to promptly schedule trial of this matter.
23. All allegations by Plaintiff of actions and/or inactions
of answering-defendants were not the proximate cause of Plaintiff r s
alleged injuries and/or damages, the existence of which answering-
defendants specifically deny and/or were not a substantial factor
in the cause of injury to the plaintiff.
24. Plaintiff's alleged injuries and damages are unrelated to
this occurrence.
WHEREFORE, answering-defendants demand that the Complaint be
dismissed with assessment of attorneys fees and costs.
~_.
'."-- ...-
. ., "
NEW MATTER CROSSCLA1M pr ;;JANT TO RULE 22521dl
1. If the plaintiff su:: ~=d the damages and injuries as
alleged in the plaintiff's Civ~ ~ction Complaint, then answering-
defendants aver that said ace ~.: .-.c and inj uries were caused by the
carelessness, negligence and :: ..:lessness of co-defendant, Michael
. Beaver,
for the reasons s.
forth in plaintiff I s complaint
without admission as to the truth
incorporated herein by refere~
of any of the said averments.
2. If the accident OCCt: ',' :. as aforesaid, then answering-
defendants aver that co-defe:-, ::, Michael Beaver, is solely liable
over to plaintiff, jointly
.::Jle or liable over to answering-
defendants upon plaintiff's .5e of action.
WHEREFORE, answering c '.dants demand judgement against
co-defendant, Michael Bea.".' :inding him to be solely liable to
plaintiff, jointly liable .iable over to answering-defendants
upon plaintiff'S cause of ,no
:1EDN1Clt, HEZYlt Iii ltREDO, P.C.
By:
~/t -/!h-(
.11 R. HEZYlt
... ".
LINDA VonDRACI-I,
Plaintiff
COURT or COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
I ....
v.
CIVIL TERM - LAW
MICHAEL A. BEAVER, WAYNE
MATSON and WEST SHORE
TAXI COMPANY,
NO: 98-584
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquirc, hercby ccrtify that I am this day serving a copy ofthc
forcgoing document upon the pcrson(s) and in thc manner indicated below, which servicc
satisfics the requiremcnts oflhe Pennsylvania Rules of Civil Procedure, by depositing a copy of
samc in thc Unitcd Statcs mail, first-class postage prepaid, as f<)lIows:
John E. Kusturiss, Jr., Esquire
Villari, Golomb & Honik
121 S. Broad Strcet, Suite 910
Philadelphia, PA 19108
(Counsel for Plaintiff, Linda VonDrach)
Jill R. Mezyk, Esquire
Mednick, Mezyk & Kredo, P.C.
1831 Chestnut Strcet, 2nd Floor
Philadelphia, PA 19103
(Counsel for Defendants, Wayne Matson and West Shorc Taxi Company)
HARTMAN & MILLER, P.C.
By:
Iu~~~
Amy g Foerster, Esq irc
Supreme Court J.D. #77986
126-128 Walnut Strect
Harrisburg, PA 17101
(717) 232-3046
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Dated: if /1'6 /1 ~
Attorneys for Defendant, Michad A. Beaver
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thc Complaint. Rathcr than takc a dclilultjudgmcnt. Plaintilrs counsel allowcd thc courtcsy of
an cxtcnsion of timc within which Dcfcndunt-Bcuvcr's counsel could rcspond to thc Complaint.
7. Admittcd.
8,9. Dcnicd. It is spccilicully dcnicd thut Pluintiffhud to rcspond to Dcfcndunt's Ncw
Mattcr by Junc 10. 1998. First, Dcfcndunt-Bcuvcr's uvcrmcnts wcrc conclusions of luw to which
no rcsponsc wus ncccssury. Sccond, thcy urc dccmcd dcnicd by ncccssury implication uccording
to Pu. R.C.P. 1029(b). Third, thcy wcrc wrongly lubelcd us Ncw Muttcr whcn, in faet, thcy wcrc
no morc than a deniul ofthc allcgutions within Pluintifl's Complaint. Fox 1'. nyrne. 525 A.2d
./28.363 Pa.Super. 70 (/987), a copy of which is uttuchcd hcrcto for rcfercncc by the Court.
10. Dcnicd. Pu. R.C.P. 10:!9(b) speuks for itself and statcs morc thut was avcrred.
II. Dcnied. This avermcnt is u conclusion of luw and, us such, rcquircs no answcr.
By way offurthcr answer, thc cases citcd in Defcndant's Motion arc fact spccifie and do not
apply to thc case at bar. By way of furthcr answer, no responsc is requircd whcn thc mattcr
alleged is merely a dcnial of an allcgation within Plaintiffs Complaint, as opposcd to a truc
affirmativc defensc. See, Fox 1'. Byrne. 525 A.2d at ./3/. Even a cursory rcview ofthc Ncw
Mattcr in comparison to the Complaint shows thc allcgation within thc New Mattcr is just a
rcpctitivc denial of issucs raised in the Complaint.
12. Admitted that Paragraph 15 of Movant's New Mattcr statcs what it is allcged to
statc. It is specifically denicd that that avermcnt is admittcd by Plaintiffs failure to respond to
Defendant's Ncw Matter. Evcn a cursory rcading ofthc pleadings as demonstrated in
Defendant's Motion, shows Plaintiff pled in her Complaint that her injuries where caused by thc
eollision of February 20, 1996. Clcarly, Dcfcndant and his counsel know by necessary
implication that Plaintiff is not going to plead this in her Complaint and then agree with
))cfcndunt's Ncw Muttcr thut shc wus not injured on suid dutc. It would he rcdunduntto huvc
I'luintill'rcsPllnd in Answcr to Ncw Mattcr what shc alrcady asscrtcd in her Cllmpluint. This is
cxuctly whut our Suprcmc Court sought to avoid in promulguting l'a.R.C.I'. 1029(h), whcrc thc
Rulc stutes "uvcrmcnts in u plcuding to which a rcsponsivc plcading is rcquircd arc admittcd
whcn not dcnicd spccilically or by /lI!CI!.\'.\'W:1' ill/p/iCtltioll. .. (Emphasis addcd.) Additionally,
what defcnsc counsel has donc in I'uragrnph 15 of thc Ncw Mattcr is attcmpt to avcr as fact what
is, in rcality, just a dcnial ofParngraph 10 ofPlaintifl"s Complaint. In this rcgard, Pa. R.C.P.
1 030(a) statcs, "[a] party may sct forth as Ncw Mattcr any othcr matcrial facts whieh arc /lot
merely denials ofthc avcrmcnts ofthc prccccding plcading" (cmphasis addcd); also sec. Fox 1'.
~. supra. The rcason bchind thc Rulc once again is obvious. That is, thc allcgations in
Defendant's Paragraph 15 are dcnicd by implication whcn looking atthc Pleadings as a whole.
13. Denicd. It is specifically denicd that thc avcrments of Paragraph 15 are admittcd
by operation of law for the reasons prcviously stated.
14. Denied. Plaintiff has spccilically pled that her injuries werc caused by thc
collision of February 20, 1996, as stated in Paragraph 10 of her Complaint.
15. Denied. The averment is a conclusion of law and, as such, rcquires no answcr.
16. Denicd. It is specilically dcnied that Plaintiff has admittcd Paragraph 15 of
Movant's Ncw Mattcr whcn spccilically, in Paragraph 10 ofhcr Complaint, she stated that thc
injuries were caused by the collision of Fcbruary 20, 1996.
17. Denied. Plaintiffspecilically scts forth in her Complaint a causal connection
between the alleged breech by Movant, and hcr injuries.
18. Dcnicd. Oncc again, Plaintiff has specilically pled in Paragraph 10 of her
Complaint that shc was injured as a rcsult of thc accidcnt of Fcbruary 20, 1996 which was caused
:~
by thc ncgligcncc of Dcfcndant.
19. Dcnied. This lIvcrmcnt is II conc1usillnof law lind, liS such. rcquircs nllllnswcr.
By wllY of furthcr lInswcr, therc lIrc spccilic IilCtS in disputc which must bc dctcrmincd by lIjury
lind, thcrcforc. judgmcnt on thc plclldings is nlltllppropriatc at this timc.
20. Admitted that co-dcfendants, Wcst Shorc Taxi Company and Waync Matson filcd
lIn Answer and Ncw Mattcr to PllIintiff's Complaint as statcd.
21. Dcnicd. This avcrmcnt is dcnicd for thc samc rcasons stated prcviously in
Paragraph 12.
22. Dcnicd. This averment is denicd for thc samc rcasons statcd prcviously in
Paragraph 12.
23. Dcnicd. Plaintiff specifically pled in hcr Complaint at Paragraph 10 that she was
injured by Dcfendants on February 20, 1996.
WHEREFORE, Plaintiffrcspectfully requests that this I-Ionorablc Court dcny
Defendant's Motion for Judgmcnt on the Plcadings.
PLAINTIFF'S CROSS MOTION FOR SANCTIONS
24. On August 25, 1998, Plaintiff's counsel called defcnse counscl, Amy C. Foerster,
and rcquested that, as a courtcsy, shc withdraw her Motion and allow Plaintiff time to respond to
the alleged Ncw Matter so that thc case could procced ahead without the nced to argue hcr
client's merit less Motion.
25. Attorncy Focrstcr stonily rcfused thc request and told Plaintiffs counsel he would
have to respond, since the Motion was supposcdly mcritorious under thc law.
26. In vicw of the rulc and holding exprcsscd by the Court in Fox v. Bvrne, again, on
August 26, 1998, Plaintiffs counscl called Movant's counscl, Amy C. Foerstcr. As shc was not
in, hc Icn lImcsslIgc on hcr voicc mllil citing hcr thc clIse of Fox \'. llyl'llt', which mlldc it plllinlls
dllY thllt hcr elicnt's motion WllS complctely wilhoulll1critllnd cssentilllly frivolous, PllIintiffs
counsel rcqucstcd shc rClld thc CllSC, lInd thcrclIncr, tinlllly lIgrcc to withdruw hcr Motion instclld
of (A) wllsting counsel's timc in druning lInllpposing Bricl: allllthcn prcparing for lInd
lIppcaring lItllrulargull1cnt, lInd. ultimately, (B) wlIsting this Court's timc in rcvicwing thc
papcrs and hcaring oralargumcnt onlln issuc that has 1I1rcady bccn squarely scttlcd by our
appcllatc courts againstthc dcfcndant's position hcrcin.
27. During thc samc mcssagc of August 26, 1998, Plaintiffs counsel also informcd
Movant's counsel, Amy C. Focrstcr, that should shc not voluntarily withdraw hcr Motion, hc
would tilc a cross-motion for sanctions in light of dcfcnsc counsel's mislcading thc Court by
failing to cite rcadily availablc contrary lcgal authority dircctly on point againstthc dcfcndant's
position, and wasting this Court's and counscl's timc.
28. Defcnsc counsel did not rcspond to thc suggcstion shc withdraw thc Motion, and
as such apparently rcfuses to do so, thus forcing plaintiffs counsel to takc time to rcscarch and
rcspond to thc dcfcndant's mcritlcss and frivolous Motion.
29. As Plaintiffs counscl has had to cxpcnd timc rcsponding to a meritlcss motion,
and arguing in Court against samc, hc is sccking as a sanction against moving dcfcndant counscl
fccs in the amount of$300.00.
WHEREFORE, Plaintiffrespcctfully rcqucsts that this Honorable Court award counsel
fees in thc amount of$300.00 against Movant's counsel, Jack M. Hartman, Esquire and Amy C.
Foerster, Esquirc.
Villari, Golomb & HOllik, P.c.
525 A.2d 42H, 363 l'a.Super. 70, Fox v. Byrne. (l'a.Sul'er. 19H7)
.42H 525 A.2d 42H
363 l'a.Super. 70
Jllmes 1'. FOX IInd Angelil Fox. husband IInd wife,
Appellllnts.
v.
Rohert J. BYRNE. M.D. IIl1d Norristown Surgical
Assoclales.
Incorpornlcd, Appellees. (Two Cllses)
01966 I'hila. 1986
02026 I'hilll. 1986
Superior Court of I'ennsylvllnia.
Argucd Jan. 14, 1987.
Filcd April 29, 1987.
Patiem filed negligence action against physician.
The Court of Common Pleas, Momgomery Coumy,
Civil, No. 82-17229, Subers. J., gramed judgmem
on Ihe pleadings in favor of the physician and denied
a motion for reconsideration and for nunc pro tunc
amendmem of the pleadings to respond to new
matter. Patiem appealed. The Superior Court,
Nos. 01966, 02026 Philadelphia 1986, Cirillo,
Presidem Judge. held Ihal Ihe palient was not
required to file a responsive pleading 10 new matter
in Ihe physician's answer which raised the statule of
limitations as an affirmative defense where the
complaim staled facls indicating that statule should
be eXlended via applicalion of Ihe discovery rule.
Judgmem reversed.
1. LIMITATION OF ACTIONS €=>192(.5)
241
241V Pleading, Evidence, Trial, and Review
241kl86 Pleading in Avoidance of Defense
241kl92 Mailers Avoiding Bar of Slalule
241 k 192(.5) In general.
Formerly 241 k 192
Pa.Super. 1987.
When plaimiff wishes to assert "discovery rule" he
may wait unlil defendam asserts stalule of limitalions
defense as new matter and file responsive pleading
preseming faclUal denial of defense consislem with
applicalion of discovery rule or he may plead
sufficiem facts to sustain application of rule in his
initial complaim, in which case plaimiff need not
specifically respond even if defendam affixes "new
matter" label to defense. Rules Civ.Proc., Rule
1030, 42 Pa.C.S.A.
I'n~c I
2. PLEADING €=> 1M
302
3021V Rcplicalion or Reply and Suhsequem
Pleadings
302k I (,.j Necessity for Pleading in Reply
302k 166 New mailer in answer.
l'a.Super. 1987.
Plaimiff has to factually deny new matter only
when it asserls defense which, if all allegalions of
complaim arc Iruc, is slill har 10 plaimiff's recovery;
any OIher defense pled as new matter is wrongly
laheled. Rules Civ.Proe" Rule 1030.42 Pa.C.S.A.
3. LIMITATION OF ACTIONS €=>192(.5)
241
241V Pleading, Evidence. Trial, and Review
241kl86 Pleading in Avoidance of Defense
241 k 192 Mailers A voiding Bar of Statule
24IkI92(.5) In general.
Formerly 241 k 192
Pa.Super. 1987.
Patiem was not required 10 file responsive pleading
10 new mailer in physician's answer which raised
statule of limitations as affirmalive defense where
patiem's cnmplaim Slated facts indicating that statule
should be eXlended by appliemion of discovery rule.
Rules Civ.Proc., Rule t030, 42 Pa.C.S.A.
.429 [363 Pa.Super. 71) Belh Liss Shuman,
Philadelphia, for appellams.
Alan K. Cotler, Philadelphia, for appellees.
Before CIRILLO, Presidem Judge, and ROWLEY
and HOFFMAN, JJ.
CIRILLO, Presidem Judge.
Must a plaimi(f file a responsive pleading 10 new
matter in a de(endam's answer which raises Ihe
slatute of limitations as an affirmalive defense, when
Ihe plaimifrs complaim states facts indicaling Ihal
Ihe slatule should be extended via appliemion of Ihe
discovery rule?
[363 Pa.Super. 72} The Court of Common Pleas of
Momgomery Counly granted defendant's, Dr.
Robert Byrne and Norrislown Surgical Associates,
mOlion for judgmem on the pleadings since the
plaimiffs, James and Angela Fox, failed to respond
to such new mailer. Because we find thai Ihe
Copyright (c) Wesl Group 1998 No claim to original U.S. Gov!. works
525 A.2d 428,363 Pa.Super. 70, Fox v. Byrne, (Pa.Super. 1987)
I'u"e 2
answer to Ihe queslion posed above is no, we
reverse. We also quash appellants' appeal (rom Ihe
trial eOUrl'S denial of Iheir motion 10 reconsider.
The Foxes instituled suit against Dr. Roberl Byrne
and Norristown Surgical Associmes (appellees) on
November 5, 1982, by filing a praecipe for
summons.
On AugusI 8, 1984, the Foxes filed a complaint
alleging Dr. Byrne's negligent performance of
surgery on Mr. Fox's fractured leg on September
10, 1980. Among the aClS of negligence alleged
were the decision to perform the surgery; permilling
a bone fragment 10 be expelled (rom the wound onto
the floor and then sterilizing and reinserting Ihe bone
fragment; and improperly selecting and inserling an
intramedullary rod. The complaint also alleged the
doclor's "[c]oneealing from the husband.plaintiff":
I) "the fact thai bone left the operalive site";
2) "the fael that the bone which left Ihe operalive
site became contaminated and necrolie and that
such necrotic bone was reinserted into the fracture
area";
3) "the fact that the rod was undersized and had
failed to immobilize Ihe fraelure and had backed
out of the femur."
Paragraph 12 of the complaint further asserled:
The husband-plaintiff continued under Ihe care of
the defendants until on or about December 23,
1980, relying on the defendants' assurances and
representations Ihat all was well in the Ireatment
and progress of healing; it was not until December
22, 1980 Ihat the husband-plaintiff became aware
for the firsllime thai the rod was backing out of the
bone. II was laler still that husband-plainti(f
became aware of the contamination of Ihe hone
during surgery.
[363 Pa.Super. 73) The defendants filed an answer
and new mailer on August 14, 1984. The answer
admilled thaI the bone fragmenl had been expelled
and reinserted, and Ihat Ihe rod had backed inlo Ihe
femur. However, the answer specifically denied all
allegations of concealment, and averred Ihal Dr.
Byrne kept Fox "fully informed as 10 his trealment
"430 and condition while he was under Ihe care o(
Defendant Byrne."
The new mailer raised Fox's elllllrlhlltury
negligence (or ceasing Irealluenl with Dr. lIyrne CIII
December 23, 1980, and Ihe bar o( Ihe Sl/lllIle of
limitations in Ihal suit was filed cm November 5,
1982, "[lIhe injury ... occurred on Seplemher 10,
1980," aud hence "(mlore Ihan Iwo yeurs expired
belween the dale of the injury and conunencemenl of
Ihis aelion. "
The Foxes filed no reply to Ihe new mailer. 011
November 5. 1984, the defendams moved (ur
judgment on the pleadiugs. The Foxes reSI"lIIded
on OClober 10, 1985, with a memorandllm In
opposition to the mOlion.
On June 11. 1986, Judge Subers grnmed judgmenl
on the pleadings to the defendnms. On June 2,1, he
denied the Foxes' mol ions for reconsldernlhlll 11I111
for nunc pro lone amendmem of the plendlngs 10
respond 10 new mailer. The Foxes have l1Ied IWO
appeals. The firsl appeal is from Ihe urder grnmlllg
Ihe motion for Ihe judgmem ,1n the plendlngs. The
second appeal is from Ihe eourl's delllnl of
appellant's mol ion for reeouslderalion. lIecnuse Ihls
is nol an appealable order. we cluash Ihe secollll
appeal and consider only the first. l'rOlo(,/c'lII
Naliollal Balik \'. Rooklill. 250 Pa.Super. 194, 378
A.2d 893 (1977).
Rule 1030 of Ihe Pennsylvauia Rules of Civil
Procedure provides in pertinent part:
"All affirmalive defenses including bUl nOI limited
to Ihe defenses of ... SlalUle of limilalions ... shall
be pleaded in a responsive plead lug under Ihe
heading 'New Maller' ".
An affirmative defense for "new mailer" purposes
is a defense which, even if all the allegations of Ihe
complaint arc lrue, is slill a bar 10 Ihe plainliff's
recovery. Pisiechko {363 PlI.Sllper. 741 I'.
Diaddorio. 230 Pa.Super. 295, 300, 326 A.2d 608,
610 (1974). The Rules require Ihat a defeudnnl
plead Ihese mailers and Ihe plaintiff reply 10 them so
thai the issues in Ihe dispule may be sharpened nl nn
early stage. If the COUrl Ihen delermines Ihnl Ihere
docs not exisl any faclUal dispule, it may resolve Ihe
case as a mailer of law and nvold nn unnecessary
Irial. See, e.g" Sechler I'. f."llslglI./lic/iJcml Co.,
322 Pa.Super. 162, 166, 4(,1) A.2d 233, 235 (1985),
Rllhe \'. Krogc'r Co., 425 Pu. 213. 2If,. 228 A,2d
750, 751 (1967).
Copyrighl (c) West Group 1998 No claim to original U.S. Gov!. wurks
525 A.2d 428, 363 Pa.Super. 70, Fox v. Byrne. (Pa.Super. 1987)
An affirmative defense which is not properly raised
In new mailer is waived. Jllelge \'. Celilla Mill. Ills.
Co" 303 Pa.Super. 221, 226, 449 A.2d 658, 661
(1982). Likewise, if a plaimiff fails 10 properly
respond to an affirmative defense pled as new
maller, the factual avermenls underlying that defense
arc admilled and Ihe defendam is emitled 10
judgmem on the pleadings. Hyser v. AlleghellY
COIIIII)'. 61 Pa.Comwlth. 169, 170,434 A.2d 1308,
1310 (1981). The plaintiff need not deny
conclusions of law but he must respond to faelual
avermems which provide Ihe basis for those
conclusions. Elloeh I'. Fooel Fair SIores, IlIe" 232
Pa.Super. 1.5,331 A.2d 912, 914 (1974).
The slatule of Iimitalions is an affirm alive defense
which ordinarily must be raised as new mailer or it
is waived. BarlallllS v. Lis, 332 Pa.Super. 48, 64,
480 A.2d 1178, 1186 (1984). See also Pa.R.Civ.P.
1030. It is an affirmative defense because even if
the plaintiff's allegalions arc true and he has made
out a cause of aClion, the statute of limitations may
be a bar to his recovery. Sechler, 322 Pa.Super. at
166, 469 A.2d at 235. Therefore. the typical
situation is as follows: Ihe plalntiff's complaim
alleges facts necessary 10 sustain his claim; the
defendam's answer pleads as new mailer facls
required to make out a slalUle of limitations defense;
the plaimiff's response denies those facls.
However, this simple series of steps becomes
muddled and confused in cases involving the
equilable "discovery rule." The discovery rule as
applied In Pennsylvania decisions(363 Pa.Super. 751
is explained in Prillee v. TnlSlees of VIIi versify of
Pellllsylvallia. 282 F.Supp. 832 (E.D.Pa.1968):
"The Pennsylvania Supreme Court has held that the
statule of IImilations in a personal injury
malpractice case docs nol begin to run umil Ihe
plaimiff or injured party either Is aware or
reasonably should be aware of the harm he has
suffered. In Ayers v. Morgall. 397 Pa. "431
282, 154 A.2d 788 (1959), the rule was applied 10
a sponge left in the complainam's abdomen during
an ulcer operation. The source of pain which the
complainant suffered was nol discovered for nine
years. "
lei. at 840-41.
In SIelll v. Riehardsoll, 302 Pa.Super. 124, 448
A.2d 558 (1982), this court stated that "Ihe
Puge 3
Pennsylvania discovery rule delays the accrual of the
cause of action from Ihe time of Ihe defendant's
neglige 111 conduct to a time when Ihe injury caused
hy Ihat conduct becomes known or knowable." /c/.
at 135. 448 A.2d at 563.
( I) In SIeill. we held Ihal once a defendant pleads
the statute of limitations as new mailer it is the
plaimi(f's obligation to present facts indicating thai
the discovery rule is applicable. Id. at 142, 448
A.2d at 566. The SIeill court reviewed the
pleadings and determined that the trial courl was
never presemed "any facts indicaling that the injury
was discovered al such a time as would bring Ihe
complaims liIed within the stalute of IImitalions
period." /c/. at 140, 448 A.2d at 566. The court
affirmed the trial court's decision graming judgmem
on Ihe pleadings. We stated "that the complaim
presemed, on its face, comained no facts which
would indicate that Ihe claim could be sustained."
Id. The SIeill court apparemly would have been
willing 10 reverse Ihe trial court's decision if the
plaimiff's campi aim had comained sufficient facts to
justify application of the discovery rule. The court
did not hold that the plaimiff's claim should be
aUlomalically dismissed because he did not
specifically reply 10 the defendam's new mailer
raising the statute of limitations as a defense. The
court was willing 1363 Pa.Super. 76) to search the
pleadings to determine whether the Steins had al any
time asserted Ihat they were unable to discover the
injury or could not have been able 10 discover the
injury umil such time as would prevenl the statule
from aCling as a bar. Therefore, based upon the
reasoning of the SIeill court, Ihere arc two ways a
plaimiff may proceed when he wishes to assert Ihe
"discovery rule". He may wait umilthe defendam
asserts Ihe SlalUle of limilalions defense as new
mailer and liIe a responsive pleading preseming a
factual denial of the defense consistem with
application of the discovery rule. Or, he may plead
sufficient facts to suslain applicalion of the rule in
his initial campi aim. In the laller case, the plaimiff
need not specifically respond even if the defendam
affixes Ihe new mailer label to the defense.
Appellees claim that this rule will over.burden and
confuse our trial courts. They claim that a plaimiff
should be required to specifically respond 10 new
mailer withoul exception. They argue that a court
should nol have to comb the pleadings to see if lite
new mailer has been comradicted. Appellees assert
that it is much more efficiem if a plainliff liIes a
Copyright (c) Wesl Group t998 No claim to original U.S. Govt. works
525 A.2d 428,363 Pa.Super. 70, Fox v. Byrne, (Pa.Super. 1987)
specific response even if that response is repelitive
of faels already pled in the complaint. We arc
graleful for the appellees hearlfelt concern for Ihe
welfare of our judicial brethern bUI we find
ourselves much more eonfidenl of Ihose jurists'
abilities. The ordinary complaint is neither very
long nor very complicated. When an affirmative
defense is pled as new matler and Ihe plaintiff
chooses not to reply and Ihe defendant moves for
judgment on the pleadings, a Irial court musl
examine the original complainl 10 determine if it
faelUally controverls Ihe asserted defense. We have
no doubt Ihat our judges can meel this challenge as
they roulinely handle much more complex tasks.
This resull is fair, simple and consislent wilh Ihe
applicable precedent. An affirmative defense is a
defense which will bar recovery even if all Ihe faCls
in the complaint arc lrue. The plaintiff musl
respond because if Ihe defense is 1363 Pa.Super. 771
applicable, he is nol entilled 10 recovery and a lrial
would be a waste of time and resources. However,
if Ihe complaint alleges facts sufficient to deny
applicalion of the defense then it docs not bar
recovery. II is no longer a lrue affirmalive defense.
In that situation. it is no more Ihan a denial of Ihe
plaintiff's allegalions. The issue must be setlled by
a faclfinder much like any other faelual
disagreement. Forcing a plaintiff 10 file a pro
forma response as if his complaint .432 had been
silent on Ihe issue seems to us a rather fruitless
exercise. We do not wish to put litigants OUI of
court for noncompliance with pointless lechnical
rules.
II is also setlled that a plaintiff docs not have to
faclually deny an asserlion merely because il is
labeled new matler. He need only respond if Ihe
new matler faelually avers a Irue affirmalive
defense. Watsoll v. Oreell, 231 Pa.Super. 115,331
A.2d 790 (1974). The rule urged upon us by
appellees would corrupt this principle. Because of
the discovery rule, the Slaute of limitations is nol
always an affirmative defense. Yet, appellees argue
thaI a plaintiff must always respond when Ihe slalule
is pled as new matler. Appellees arc actually asking
this court 10 adopt an exceplion 10 the above cited
rule Ihat Ihe plaintiff's required response is governed
by the substance of Ihe defendanl's pleading and nol
Ihe label affixed 10 it. In cases involving the slalule
of limitations, Ihe label would control. Plaintiffs
would have 10 respond in some situations even
Ihough Ihe stalule was nol a lrue affirm alive defense.
I'IIU" 4
As previously discussed, Ihls re'iulre/llent IVlIuhl he
pointless. It would alsll he ellllfu,III".
121 It wOllld he clIllfushllt hecllu,e 1'1111111111'\ IVlIuld
be Ullsure IVhell Ihey /llIIY Iltllore IlIcorreelly IlIheled
lIew matler alld whell Ihey /IIusl re'I'"l1lllll II. The
rule we adopt is fairer IIl1d siml'ler. A 1'1111111111' hll'
10 faelually deny new mllller IInly when II lI\1errs II
defense, which If IIl1lhe IIl1eltllllons III' Ihe eoml'llIhll
arc lrue. is stili a har III Ihe 1'IIIInlllrs recovery.
Any olher defense pled ,1S new mllller (Jr,.\
Pa.Super. 7M) is wrongly IlIhele,l. This resnll Is
also consisteul wllh Ihe llppllellhle prece,lenl.
In WII/SOII I'. O,,'rll. II pauelllf Ihls courr rellehed II
similar eonelusloll. III lVII/mil, Anll WIIls1I1I hired
Marshall Bernseeln liS her lIt10mey lIud Mr.
Bernstein engllged Jean Green 10 hllllllle WIIlsOII'S
case in Monlgomery Connly. IVII/JOII III 117. 331
A.2d at 791. The prospecllve del'endlllll died hefme
Green filed sull hut he never filed II complllinl
against Ihe defendalll's perslllllll represenl/lllve lIIul
Ihe stalute of IImllatllllls expired. WIIIslIn IlIler
broughl all aClill1l IIl1eltlllg negligence hy Greell whll
filed all answer and lIew III/Iller denylllg Ihal 1111
atlorney c1ielll.relmlllllshlp ever exlsled helween him
and WatsOIl. /d. at 117-IM, 331 A.2d III 791.
Walson failed to respond 10 Ihe new matler nnd Ihe
Court of Commllll Pleas elllered JlIdg/llellt 1111 Ihe
pleadings ill favor of Greell. The SI/perlor ClIl/rt
reversed. hllldillg Ihat Ihe exlseel/ee III' IIn IIl1l1rney.
client relalionship had heen placed In Issl/e hy Ihe
complaint. Therefllre, nil reply was needed tll the
new mailer. /d. at IIM.19, 331 A.2d al 792. The
courl slaled Ihat "Inlew matler properly cOlltains
avermcnts of faels only If Ihey nre extrinsic In (acls
averred inlhe complalrll." /d. al 1!9. 331 A.2d al
792. Becal/se the plalllllfl' had III ready pnl Ihis
ntatlel' in issue it was IIllI IIn IIffirmllllve defense
desplle Ihe IlIhel nsed hy Ihe del'endlllll. It was a
simple denial representing a I'ac/llIII disagrcement
which musI he resolved hy the faclfinder. Taking
all the plainli(f's IIl1egmillns 10 he Irue, Ihe IIsserted
de(ense would nol har reellvery because the plaillliff
had already IIl1eged Ihm an atlorney.elient
relalionsbip had in fact exisled. Therefore, Green's
new mailer failed 10 allege a proper affirmalive
defense.
131 In Ihe Installl Cllse, Ihe Foxes complailll allegcd
Ihat Ihey firsl became aware of Mr. Fox's injury on
Decemher 22, 19M1J. The Foxes institutcd suit on
Novemher 5, 19M2. If the SlaUle WIIS lolled until
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VILLARI GOLOMIl & 1I0NIK
IlV: .IOIIN E, KUSTUlUSS, ,m., ESQUllm
mENTIFICATION NO,: 28271
121 SOUTII U1mAI> STREET
SUITE 910
I'IIILAI>ELI'IIIA, I'A \9\117
(2\ 5) 985-9\77
ATTOI{NEV FOI{ \'LAINTIHS
LYNDA VON DRACH
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
MICHAEL BEAVER und
WAYNE MATSON and
WEST SHORE TAXI COMPANY
NO. 98-584 CIVIL
PRAECIPE TO SUBSTITUTE VERIFICATION
TO THE PROTHONOTARY:
Kindly substitutc the Vcrification bearing the signaturc of John E. Kusturiss, Jr., Esquirc
attached to the Civil Aetion which was filed on Fcbruary 2, 1998 with thc attached Verification
bearing the signature of plaintiff, Lynda Von Drach, in thc above matter.
Villari, Golomb & HOllik, P.c.
Jo E. Kusturiss, Jr., Esquire
ttorney for P1aintiff(s)
Date: 'if;/U/'Jo
YEIU~IC^TION
John E. Kusturiss, Jr.. Esquirc, hercby stutcs tlmt hc is the attorney for the plaintiffs in
this aetionand vcrilics thatthc statemcnts Illadc inthc forcgoing documcntarc true and corrcct to
thc bcst of his knowlcdgc. infomllltionand belic!: Thc undcrsigncd understands that thc
statcmcnts therein arc madc subjcct to pcnaltics of 18 Pa. C,S,A. Section 4904 relating to
unsworn falsilication to authoritics.
Villari, Golomb & HOllik, P.c.
,John . Kusturiss, Jr., Esquire
Attorney for Plaintiff(s)
Date: j=/:26'/??"
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which no responsive pleading is required. By way of further
answer, answering defendants should not be predjudiced in their
claim for contribution from cO-defendant, movant, by some alleged
failure of the plaintiff to which answering defendants have no
control.
Wherefore, defendants, Matson and West Shore Taxi Company,
respectfully request this Honorable Court DENY defendant, Beaver's,
Motion for Judgment on the Pleadings, in whole or, in the
alternative, in it's regard to defendants, Matson and West Shore
Taxi Company.
Respectfully Submitted,
MEDNICK, MEZYK & KREDO, P.C.
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MEDNICK, MEZYK & KREDO, P.C.
BYI JILL R. MEZYK, ESQUIRE
ATTORNEY I.D.* 69631
1831 CHESTNUT STREET
PHILADELPHIA, PA 19103
(215) 563-3303
"
ATTORNEY FOR DEFENDANTS
WAYNE MATSON and
WEST SHORE TAXI COMPANY
"
;
,
,
v.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 98-584 CIVIL
LINDA VON DRACH
MICHAEL BEAVER and
WAYNE MATSON and
WEST SHORE TAXI COMPANY
CERTIFICJ,TION OF SERVICE
: ,
I, Jill R. Mezyk, Esquire, hereby certify that service of a
true and correct copy of the within response to defendant's Motion
for Judgment on the Pleadings was made to the following
individuals, by first class, u.s. Mail, postage prepaid, on the
date below:
Amy C. Foerster, Esquire
Hartman & Miller, P.C.
126-128 Walnut Street
Harrisburg, PA 17101
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to)
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John E. Kusturiss, Esquire
Villari, Golomb & Honik
121 South Broad Street
9th Floor
Philadelphia, PA 19107
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