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HomeMy WebLinkAbout98-00976 SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY / PENNSYLVANIA NO, 98-976 v. MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of THOMAS, THOMAS & HAFER, LLP as counsel on behalf of Defendant Camp Hill Borough in the above- captioned matter, All papers may be served upon the undersigned at P.O. Box 999, Harrisburg, PA 17108-0999. 'I , ! THOMAS, THOMAS & HAFER, LLP ~~~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I. D. No. 06776 j , " ATTORNEYS FOR DEFENDANT CAMP HILL BOROUGH DATE: 3)06fqe, CERTIFICATE OF SERllCE I ./ I I I I [ hcrcby ccrtify that I al11this day scrving thc forcgoing docul11cnt(s) upon thc pcrson(s) and in thc manncr indicatcd bclow: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Scott D, Moore, Esquire SAlOIS, SHUFF & MASlAND 26 West High Street Carlisle,PA 17013 Attorney for Plaintiffs Mindy S. Straley 1072 Lancaster Boulevard. Apt. #8 Mechanicsburg,PA Camp Hill Borough 2145 Walnut Street Camp Hill, PA Pennsylvania PERCS, Inc. 3605 Hartsdale Drive Camp Hill, PA By:JtlJ1;J.~ ~ J\NIEL R. OODEMOTE SENIOR DEPU1Y ATIORNEY GENERAL ATTY. !.D. #30986 COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATIORNEY GENERAL TORTS LITIGATION SECTION 15lh FL. - STRAWBERRY SQUARE HARRISBURG, PA 17120 (717) 783-3147 - DIRECT DIAL DATED: March 1/ ,1998 -.;!.:.:., ','", C J\ ~.~;' _:.' CCii'::'l:'.-;:n,'i.:.:/, L Tii ,_:i' : i_,ijij -." l~ till; ,. 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Defendant, Camp Hill Borough (hereinafter "Borough) iLl a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at 2145 Walnut Street, Camp Hill, Cumberland County, Pennsylvania. 5, Defendant, Pennsylvania PERCS, Inc. is a Pennsylvania corporation with a principal place of business located at 3605 Hartsdale Drive, Camp Hill, Cumberland County, Pennsylvania. 6. Defendant, Department of Transportation (hereinafter "PennDOT") is an agency of the Commonwealth with offices 555 Walnut Street, 9th floor, Harrisburg, Dauphin County, Pennsylvania, 7. The events hereinafter complained of occurred on or about April 5, 1997 at approximately 8: 19 a. m. in Camp Hill Borough, Cumberland County, Pennsylvania at the intersection of South 32nd Street (Route 15) and Harvard Avenue. 8. At said time and place, Defendant Straley was operating a 1995 Pontiac Firebird with Pennsylvania registration number XGK041 in a general southbound direction on South 32nd Street, Said South 32nd Street is a two-way four-lane state road with traffic signals controlling the intersection with Harvard Avenue and the entrance to the Camp Hill Shopping Mall, SAIDIS, GUIDO, SHUFF & MASLAND 26 W, High Streel Carlisle, PA 9. At said time and place, Joseph Kutchman was operating a 1984 Buick Century with Pennsylvania registration number X01630 in a general eastbound direction exiting the Camp Hill Shopping Mall onto Harvard Avenue, Said Harvard Avenue is a two-lane borough road controlled by a traffic signal. 10, At aaid time and place, Plaintiff Sylvia Kutchman waa a paaoenger in the car driven by her huaband, Joseph Kutchman. 11. At aaid time and place, Defendants Borough and PERCS were responsible for maintenance and repair of the traffic control signals located at the interaection of 32nd Street and Harvard Avenue, Camp Hill, Cumberland County, Pennaylvania. 12, At said time and place, the vehicle being operated by Defendant Straley struck the vehicle operated by Joseph Kutchman collided resulting in the death of Joseph Kutchman and the serious injuries to Sylvia Kutchman. 13, Plaintiffs' decedent's death and the injuries sustained by Plaintiff Sylvia Kutchman were a direct and proximate result of the careless and negligent conduct of Defendant Straley then and there occurring generally and in the following specifics: a. Operating her vehicle in a reckless manner; b. Failing to stop for a red traffic signal; c. Failing to maintain a proper lookout; d, Failing to have her vehicle under proper control; e. Failing to stop before colliding with the vehicle being operated by Joseph Kutchman; f. Travelling at an excessive rate of speed; and SAlOIS, GUIDO, SHUFF & MAS LAND 26 W, High Sll'CCl Carliole, PA g. Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence, 3 14, Plaintiffs' decedent's death and the injuries to Plaintif f Sylvia Kutchman were the direct and proximate resul t of the careless and negligent conduct of Defendant Borough then and there occurring, generally and in the following specifics: a. Failing to design, construct and maintain the intersection in a safe condition for ordinary travel; b. Allowing a dangerous condition to exist at the aforementioned intersection; c. Allowing the traffic signals to malfunction; d. Failing to make necessary repairs to the traffic signals and/or intersection design at the aforementioned intersection; e. Failing to exercise its authority to properly maintain the traffic signals at the intersection; and f, Failing to take necessary and reasonable steps to improve the safety of the said intersection, 15. Plaintiffs' decedent's death and the injuries to Plaintiff Sylvia Kutchman were the direct and proximate result of the careless and negligent conduct of Defendant PennDOT then and there occurring, generally and in the following specifics: a. Failing to design, construct and maintain the intersection in a safe condition for ordinary travel; SAlOIS, GUIDO, SHUFF & MASLAND 26 W, High SItU. Clltlisle,PA b. Allowing a dangerous condition to exist at the aforementioned intersection; c. Allowing the traffic signals to malfunction; 4 d, Failing to make necessary repairs to the traffic signals and/or intersection design at the aforementioned intersection; e. Failing to exercise its authority to properly maintain the traffic signals at the intersection; and f. Failing to take necessary and reasonable steps to improve the safety of the said intersection. 16, Plaintiffs' decedent's death and Plaintiff Sylvia Kutchman's injuries were the direct and proximate result of the careless and negligent conduct of Defendant PEReS then and there occurring, generally and in the following specifics: a. Allowing a dangerous condition to exist at the aforementioned intersection; b. Allowing the traffic signals to malfunction; c, Failing to make necessary repairs to the traffic signals at the aforementioned intersection; d. Failing to properly maintain the traffic signal at the aforementioned intersection; e. Failing to take necessary and reasonable steps to improve the safety of said intersection; f. Failing to properly repair the traffic signal at the aforementioned intersection. SAlOIS, GUIDO, SHUFF & MASLAND 26 W. High SIleeI CArlisle. PA 17. At all times relevant hereto, Plaintiffs had elected the full tort option, 5 SAlOIS, GUIDO, SHUFF & MASLAND 26 W. HISh Suoe. Carll.le,PA WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in an amount in excess of Twenty-five Thousand Dollars ($25,000,00) plus costs and interest, A jury trial is demanded, COUNT III - PLAINTIFF SYLVIA KUTCHMAN 25, The averments contained in paragraphs 1 through 24 are incorporated herein as though fully set forth. 26. As a direct and proximate result of the careless and negligent conduct of Defendants, jointly and severally, Plaintiff Sylvia Kutchman sustained the following injuries and/or aggravations of pre-existing conditions, some or all of which may be permanent: a. Fracture of the left ulna; b. Fracture of the left radial head; c. Avulsion fracture of the right lateral malleolus; d. Avulsion fracture of right ankle; e. Ligament strain of right ankle; f. Swelling and bruising of right ankle; g. Swelling and bruising of left armj h. Abrasions on left leg; 1. Neck pain; and j . General pain and suffering. 27, Plaintiff, Sylvia Kutchman, has suffered great bodily pain and suffering as well as mental anxiety and nervousness to her great detriment and loss. 8 28. Plaintiff, Sylvia Kutchman, has been and will be deprived of her ability to enjoy the pleasures of life. 29, Plaintiff, Sylvia Kutchman, has sustained serious and permanent injury, for the treatment of which she has incurred medical bills and expenses and may require further medical treatment and surgery in the future. 30. Plaintiff, Sylvia Kutchman, has suffered interruption of her daily habits and pursuits to her great and permanent detriment and loss. 31. All injuries and damages, as stated above, suffered by Plaintiff Sylvia Kutchman were proximately caused by the joint and/or several negligence of the Defendants. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in an amount in excess of Twenty-five Thousand Dollars ($25,000.00) plus costs and interest. A jury trial is demanded. Date: 2. - '2-0 -'18 Respectively submitted, & MASLAND By: - j) /- . , SAIDIS, GUIDO, SHUFF & MASLAND 26 W. High SUUI C",II.lc,PA cott D. Moore, Esquire Supreme Ct. I.D. il 55694 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs 9 \: , , , '~ J an ~ l ( ~ I I, SAlOIS, GUIDO, SHUFF & MASLAND 26 W, High Street Carlisle, PA 4, Defendant, Camp Hill Borough (hereinafter "Borough) is a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at 2145 Walnut Street, Camp Hill, Cumberland County, Pennsylvania, 5, Defendant, Pennsylvania PERCS, Inc, is a Pennsylvania corporation with a principal place of business located at 3605 Hartsdale Drive, Camp Hill, Cumberland County, Pennsylvania. 6. Defendant, Department of Transportation (hereinafter "PennDOT") is an agency of the Commonwealth with offices 555 Walnut Street, 9th floor, Harrisburg, Dauphin County, Pennsylvania. 7. The events hereinafter complained of occurred on or about AprilS, 1997 at approximately 8:19 a,m. in Camp Hill Borough, Cumberland County, Pennsylvania at the intersection of South 32nd Street (Route 15) and Harvard Avenue, 8, At said time and place, Defendant Straley was operating a 1995 Pontiac Firebird with Pennsylvania registration number XGK041 in a general southbound direction on South 32nd Street, Said South 32nd Street is a two-way four-lane state road with traffic signals controlling the intersection with Harvard Avenue and the entrance to the Camp Hill Shopping Mall. 9, At said time and place, Joseph Kutchman was operating a 1984 Buick Century with Pennsylvania registration number X01630 in a general eastbound direction exiting the Camp Hill Shopping Mall onto Harvard Avenue. Said Harvard Avenue is a two-lane borough road controlled by a traffic signal. SAIDIS, GUIDO, SHUFF & MAS LAND 26 W, High Sueel Carll,le, PA 10. At said time and place, Plaintiff Sylvia Kutchman was a passenger in the car driven by her husband, Joseph Kutchman. 11, At said time and place, Defendants Borough and PERCS were responsible for maintenance and repair of the traffic control signals located at the intersection of 32nd Street and Harvard Avenue, Camp Hill, Cumberland County, Pennsylvania. 12. At said time and place, the vehicle being operated by Defendant Straley struck the vehicle operated by Joseph Kutchman collided resulting in the death of Joseph Kutchman and the serious injuries to Sylvia Kutchman. 13. Plaintiffs' decedent's death and the injuries sustained by Plaintiff Sylvia Kutchman were a direct and proximate result of the careless and negligent conduct of Defendant Straley then and there occurring generally and in the following specifics: a. Operating her vehicle in a reckless manner; b. Failing to stop for a red traffic signal; c. Failing to maintain a proper lookout; d, Failing to have her vehicle under proper control; e, Failing to stop before colliding with the vehicle being operated by Joseph Kutchman; f. Travelling at an excessive rate of speed; and g. Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence. 3 COUNT I - WRONGFUL DEATH ACTION 18. The averments contained in paragraphs 1 through 17 are incorporated herein as though fully set forth, 19, Plaintiff William Kutchman brings this action pursuant to 42 Pa. C.S.A, ~ 8301 and Pa. R.C.P, ~ 2202(a) as the personal representative of the decedent, Joseph Kutchman, on behalf of all those entitled by law to recover damages for the wrongful death of the said Joseph Kutchman. 20. The names and addresses of all persons legally entitled to recover damages for the death of the decedent and the relationship to decedent are as follows: Sylvia Kutchman 1716 Lincoln Drive Camp Hill, PA 17011 spouse William Kutchman 3014 Dickinson Avenue Camp Hill, PA 17011 Son Janet K. Lush 75 Russell Road Carlisle, PA 17013 Daughter 21. At no time during his life did decedent Joseph Kutchman bring an action to recover damages for his personal injuries and no other action has been commenced to recover damages for his SAlOIS, GUIDO, SHUFF & MASLAND 26 W. High Slreet ClllIIsle,PA death. 22. As a direct and proximate result of the careless and negligent conduct of all of the Defendants, jointly and severally, Plaintiff William Kutchman has suffered significant and permanent loss and injury, including, but not limited to, 6 , t , , SAIDIS, GUIDO, SHUFF & MASLAND 26 W, High Street Cllllisle,PA burial costs; funeral costs; medical expenses; costs of administrating the estate; loss of decedent's contribution and support, shelter, food, clothing, medical care, education, entertainment, gifts and recreation; loss of decedent's fringe benefits; loss of decedent's services, society and comfort; anguish and grief; loss of counsel and guidance; and costs of this action. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in an amount in excess of Twenty-five Thousand Dollars ($25,000.00) plus costs, delay damages, and interest. A jury trial is demanded. COUNT II - SURVIVAL ACTION 23. The averments contained in paragraphs 1 through 22 are incorporated herein as though fully set forth. 24, As a direct and proximate result of the careless and negligent conduct of Defendants, jointly and severally, Plaintiffs' decedent suffered the following damages: a. Pain and suffering; b. Loss of future earning power, less his estimated cost of personal maintenance; c. Loss of fringe benefits, retirement and social security; d. Other financial losses resulting from his death; and e, Loss of enjoyment of life and its pleasures, 7 . ..........~'..". 28. Plaintiff, Sylvia Kutchman, has been and will be deprived of her ability to enjoy the pleasures of life. 29. Plaintiff, Sylvia Kutchman, has sustained serious and permanent injury, for the treatment of which she has incurred medical bills and expenses and may require further medical treatment and surgery in the future. .' I I j' 1',:, .,r ). , 30, Plaintiff, Sylvia Kutchman, has suffered an interruption of her daily habits and pursuits to her great and permanent detriment and loss, 31. All injuries and damages, as stated above, suffered by Plaintiff Sylvia Kutchman were proximately caused by the joint and/or several negligence of the Defendants. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in an amount in excess of Twenty-five Thousand Dollars ($25,000,00) plus costs and interest, A jury trial is demanded, Date: 2.-'2-0-<78 Respectively submitted, SAIDIS, & MASLAND By: -1)t. ~ SAlOIS, GUIDO, SHUFF & MAS LAND 26 W, High Slreel Carll.le,PA cott D. Moore, Esquire Supreme Ct. I,D. # 55694 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs 9 ."" r I \ 1 VERIFICATION ;' ., I J I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. , DATED: ~("~/!/998 :; tw.. l~tJv>,(l", Sylv'a Kutchman ) \ . I j SAlOIS, GUIDO, SHUFF & MASLAND 26 W. High Slrcel Carlisle, PA ,,-:', -?- ";& 0.1- r:{ rJ-o '- VlQ t--.. >. f.. ~ c ~ I): <'; [~ 0 ~ ~', 8 ~ , ,~ :,..~ ..r, t.., U.I ~~... I., ',' ~ f') ...0 L)':~ . Cj :~.~ rei, ... ~ L7 - l: -;'- ,,- ,-):_1 u; L . j. . ()1. " (:' '.; "'lI ' If .- ~ ~I 8~ c.., ~ ~'~~ ~ ~~J L; , ( ~~ " .J ~ rL cr: ~i ~ I j ,0... 'b9- I.'~ 1.:_ . ~~ ., U_ ,-:1 0 U C:\ ^~V10NOH10~d .................... ..a-}l~~~m~(~~;~r~;... ......61'........................................ 80 41(11:: l1:)J,1?W ?r; II> ~ ""- M X. ,.. r!: ::>.0: ~9. 0<:::1 -- \...l~~ ~o ... t~ a.. c,""i -,.,.r;. c _"1' :.~:'Y1 r:::. N _.1...:- U- C-Z u:;".l c:= ,hw "L ....:; (.\~Ju.. F :a= ;?- \5 CO a C1' . CERTIFICATE OF SERVICE AND NOW, this 24'" day of March, 1998, I hereby certify that I have served the foregoing Entry of Appearance on the following by deposillng a true and correct copy of same in the United States mails, postage prepaid, addressed to: Scott D. Moore, Esquire Said is, Shuff & Masland 26 West High Street Carlisle, PA 17013 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Commonwealth of Pennsylvania Department of Transportation 555 Walnut Street, 9th Floor Harrisburg, PA 17101 f , Pennsylvania PERCS, Inc. 3605 Hartsdale Drive Camp Hill, PA 17011 <:::;>-- <_:~.J~ ~a...::::~ . James G, Nealon, III, Esquire SYLVIA KUTCH MAN, Individually and WILLIAM KUTCHMAN, as Executor of the Estate of JOSEPH KUTCHMAN, deceased, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNlY, PENNSYLVANIA v. : CML ACTION. lAW : JURY TRIAL DEMANDED MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OFPENNSYLVANIA,DEPARTMENT OF TRANSPORTATION and PENNSYLVANIA PERCS, INC., Defendants : NO. 98 - 976 NOTICE TO PLEAD TO ALL PARTIES: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. BY:~~ ~ANIE ,G ODEMOTE SR. DEPUTY ATTORNEY GENERAL Office of Attorney General Torts Litigation Section 15"' Floor, Strawberry Square Harrisburg, PA 17120 (717) 783-3147 - DIRECT , ! I I I I I , I'. I.", report. 3. Admllled, based solely on information obtained from the police accident 4, Denied. After reasonable investigation, the Commonwealth Defendant Is without sufficient knowledge or Information to form a belief as to the truth of these averments, 5. Denied, After reasonable investigation, the Commonweaith Defendant is without sufficient knowledge or informallon to form a belief as to the truth of these averments, 6, Admilled, Admitted, based solely on informallon obtained from the police accident 7. report. 8. report, 9. report, 10. report, 11. Admitted, based solely on information obtained from the police accident Admitted, based solely on informallon obtained from the police accident Admitted, based solely on information obtained from the police accident The averments of these paragraphs are directed to other parties, and, accordingly, no response is required. By way of further answer, Defendant PennDOT avers that it has no responsibility for the maintenance or repair of the traffic signals referred to in paragraph 11. 12, Admllled that Joseph Kulchman died as a resuit of injuries received in the accident described In Plaintiffs' Complaint. Defendant PennDOT does not have sufflclent Information to either admit or deny the extent of the Injuries to Sylvia Kutchman. 13. The averments of these paragraphs are directed to other parties, and, accordingly, no response Is required. 14. The averments of these paragraphs are directed to other parties, and, accordingly, no response is required. 15, Denied that Defendant PennDOT was careless or negligent in any manner whatsoever or that its conduct was the proximate cause of the accident, Plaintiffs decedent's death or Plaintiff Sylvia Kutchman's injuries. (a) - (I) These paragraphs are denied generally pursuant to Rule I029(e) of the Pennsylvania Rules of Civil Procedure. 16. The averments of these paragraphs are directed to other parties, and, accordingly, no response Is required. 17. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 18. Paragraph 18 requires no answer, 19. Paragraph 19 is a conclusion of law to which no responsive pleading is required. 20. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, 21. Admilled as paragraph 21 relates to Defendant PennDOT. 22, It is denied that Defendant PennDOT was negligent or careless in any manner whatsoever or that its conduct was the direct or proximate cause of Plaintirfs' damages, By way of further response, Defendant PennDOT, as a Commonwealth Defendant cannot be liable for funeral costs or costs of the administration of an estate based on 42 Pa, C.S, ~8528(c). WHEREFORE, Defendant PennDOT demands Judgment in its favor and against all other parties. COUNT II- SURVIVAL ACTION 23. Paragraph 23 requires no answer. 24. It is denied that Defendant PennDOT was careless or negligent in any manner whatsoever and it is further denied that Defendant PennDOT was careless or negligent in any manner whatsoever and it is further denied that Defendant PennDOT's conduct was the direct or proximate cause of the damages set forth in paragraph 24. WHEREFORE, Defendant PennDOT demands Judgment in its favor and against all other parties. COUNT III . PLAINTIFF SYLVIA KUTCHMAN 25. Paragraph 25 requires no answer. 26. Denied that Defendant PennDOT was careless or negligent in any manner whatsoever or that the conduct of Defendant PennDOT was the direct or proximate cause of the damages claimed by Plaintiff Sylvia Kutchman. The remainder of the allegations of paragraph 26 are deemed denied because Defendant PennDOT does not have sufficient knowledge or Information to form a belief as to the truth of those averments, 27. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 28. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 29. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 30. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, 31. It is specifically denied that Defendant PennDOT was negligent in any manner whatsoever or that any conduct by Defendant PennDOT was the proximate cause of the damages alleged by Plaintiff Sylvia Kutchman, WHEREFORE, Defendant PennDOT demands judgment in its favor and against all other parties, NEW MATTER 32, The present action is controlled by the provisions of I Pa. C,S, *2310 and Act No. 1980-142, set forth in 42 Pa. C,S, **8501, et seq" which Acts are incorporated herein and pled by reference. The Commonwealth Defendant asserts all the defenses contained therein, 33. The Commonwealth Defendant did not have notice, written or otherwise, of the allegedly dangerous condition, or in the alternative, if said notice was received, it was not received in sufficient time prior to the alleged accident for the Commonwealth Defendant to have corrected or to have warned the traveling public of the allegedly dangerous condition. 34. The Commonwealth Defendant avers that recovery may not be had against it for alleged failures to redesign, change or update designs of state-designated highways, rights-of-ways or fixtures or structures affixed thereto or located thereon, 35, The traffic control signals, referred to in Plaintiffs' Complaint, were owned, possessed and controlled by the Defendant municipality, Borough of Camp Hill, which had the duty to keep and maintain the traffic control signals at the accident situs in a reasonably safe condition and in proper working order; if it is shown that the Plaintiff was injured in the manner alleged in the Complaint, it was due solely to the negligence and carelessness of the municipality and its agents, servants, and employees, 36. The Commonwealth Defendant had no duty with respect to the Plaintiff. 37. Should liability be found on the part of the Commonwealth Defendant, the amounts and types of damagcs rccoverable In the present action are limited and controlled by 42 Pa. C,S, *8528. 38, Funeral and estate administration expenses are not recoverable against the Commonwcalth party, 39. Thc Commonwealth Defendant asserts all defenses available to It under the Motor Vehicle Financial Responsibility Law, 75 Pa, C.S.A. * 170 I, et seq., and any successor statute and claims any defenses which may be available pursuant to said Act. 40. The accident as pleaded, if true, was caused by the negligence of Defendants, Borough of Camp Hili, Mindy Sue Straley and Pennsylvania Percs, Inc.., as more fully set forth within the Plaintifrs Complaint, which is Incorporated herein by reference without admission or adoption. 41. The Commonwealth Defendant may not be held responsible for injuries incurred by third parties which were allegedly caused by the acts of another. 42. The Commonwealth Defendant avers that if negligence is found to exist on its part, said negligence was not the proximate cause of Plaintifrs injuries. 43. The Commonwealth party is absolved from liability because any negligence alleged on its part merely facilitated the Plaintifrs injuries, 44. Plaintirrs decedent, William Kutchman, was contributorily negligent in that he: (a) entered the intersection with the traffic control signal being red signaling vehicles traveling in his direction to stop; (b) operating his motor vehicle with a careless and reckless disregard for the rights and safety of others; (c) failing to keep a proper lookout for other lawful users of the highway; (d) failing to keep his vehicle under proper control; (e) failing to operate his vehicle with due care under existing circumstances; (I) operating his vehicle so as to create an unreasonable risk of bodily harm to another to a degree of probablllty that substantial harm would result; 45. The causal negligence of the Plaintiffs decedent is greater than any negligence on the part of the Commonwealth Defendant, and Plaintiffs recovery is therefore barred, or, in the alternallve, must be diminished In accordance with the Pennsylvania Comparallve Negligence Act. 46. The causal negligence of each and all other Defendants is asserted and requires that any recovery against the Commonwealth Defendant be diminished In accordance with the Pennsylvania Comparative Negligence Act. WHEREFORE, Defendant PennDOT demands judgment in its favor and against all other parlles, 2252fd) NEW MATTER DIRECTED TO DEFENDANTS. MINDY S. STRALEY. BOROUGH OF CAMP HILL AND PENNSYLVANIA PERCS. INC. 47, The factual averments of the Plaintiffs' Complaint are incorporated herein by reference as if fully set forth at length without admission or adoption. 48, Liability on the part of the Commonwealth Defendant Is specifically denied. 49. If the averments contained in the Plaintiffs' Complaint are established, said averments being speclficaily denied, as they may relate to the Commonwealth Defendant, then the injuries and damages complained of were not caused solely by the Defendants, Mindy S. Straley, Borough of Camp Hill and Pennsylvania Percs, Inc.. 50. Defendants, Mindy S. Straley, Borough of Camp Hill and Pennsylvania Percs, Inc., have been joined herein to protect the Commonwealth Defendant's right of indemnity and contribution, and the Commonwealth Defendant avers that the above-said Defendants are alone liable to the Plaintiff, or in the alternative, that the above-said Defendants are liable over to the Commonwealth Defendant, or jointly and severally liable on the Plaintiffs causes of action, WHEREFORE, Defendant PennDOT demands judgment in its favor and against all other parties, RESPECTFULLY SUBMITTED: D. MICHAEL FISHER ATTORNEY GENERAL DATED: April ~, 1998 B~~~ , NIEL R. G ODEMOTE SENIOR DEPUTY ATTORNEY GENERAL ATTY. !.D. #30986 >- t..O -... u; ..:J t:-; '1; .~:. ,- N ~~~~. U.1~{ C)""'': ....j..;.", 8::: c\.. -:,': ~r'" ;::-'::::. -Co ,-, ;:'~f.::; c_ ," l..uu.. I :~.:: dC', (r.; "'" l.J- ~,-" o:iij f:: ,:... :=""!Lt. "'" J:~ U- to ::'1 0 Cl' U CERTIFICATE OF SERVICE I' , '\' ( " " ; ., , I, Joscph G. Muzic, Esquirc do hcrcby ccrtify that I causcd a truc and corrcct copy ofthc ( , 1 foregoing document(s) to bc served upon thc following dcsignated pcrson(s) by placing thc same in the United States Mail, First Class Delivery, on the date sct forth below. Scott Moore, Esquire 26 West High Strect P.O, Box 560 Carlisle, PA 17013-0560 James G, Nealon, III, Esquire 30 I Market Street 9th Floor P.O, Box 865 Harrisburg, P A 17 I 08-0865 Daniel R, Goodemote, Esquire Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PAl 7 I 20 BY: POST & JELL, P.C. ff-.-~ JOSEPH G, MUZle, ESQUIRE Attomey J.D. No: 55919 Attorney for Defendant Pennsylvania Percs 237 N, Prince Street Lancaster. PA 17603 DATE: /(~f.- 'I f 1 ~- 1""' . no; -" r.:: '" ,-= (~ >< lI.1Q " ." {.) ~~ fj o~' .- l'.r':. l~. Oh .. 0'" ,-, .. .:."J 1:i.11.~ I :'..J riP: c:: ("":'; f!.: <>... UifE -.:.a; lI_ e:: ..:': 0 ::l 0"'\ () " . ' serving this Subpoena may seek a court order compelling you to comply with it, r~ THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Scott D. Moore. Esauire Address: 26 West Hiah Street Carlisle. PA 17103 Telephone: (717) 243-6222 Supreme Court ID # 55694 Date: Seal of the Court BY THE COURT: Prothonotary Deputy . < I >- '- r-r; ('.' ~:,: r~: .,u .. " ..' C'" - , J.,. UJ.:, ) (.) ",' ~ [F~ ,~. , ~r': c: (:l c., ll_ ~:. po..! " -' n:.: ,.'td (C ~'. r~. L:~~ :l.. 1"' ..., "j OJ_ n::: () U c' SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs v. MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-976 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: MINDY S. STRALEY c/o James G. Nealon,Esquire NEALON & GOVER 310 Market Street Harrisburg, PA. 17101 CAMP HILL BOROUGH c/o C. Kent Price Esquire . '. THOMAS, THOMAS & HAFER 305 N. Front Street Harrisburg, PA. 17101 COMMONWEALTH OF PENNSYLVANIA c/o Daniel R. Goodemote, Esquire Office of Attorney General Torts Litigation Unit 15th Floor, Strawberry Square Harrisburg, PA, 17120 PENNSYLVANIA PERCS, INC. 6375-8 Baseshore Road Mechanicsburg, PA, 17055 Plaintiffs, Sylvia Kutchman, individually and William Kutchman, as Executor of the Estate of Joseph Kutchman intend 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. I f no obj ect ion is made, the Subpoena may be served. Date: ? -"'2- 7- '18 SAIDI , SHUFF & ~LAND By: / D~ co t D. Moore, Esquire Supreme Ct, I.D. # 55694 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA t: r, I', . . , . , , v. NO, 98-976 CIVIL TERM MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 . TO: Michael Norris Coroner's Office Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Within twenty (20) days after service of this Subpoena, you are ordered by the court to produce the following documents or things: records regarding the death of Joseph Kutchman on April 5, 1997 at Saidis, Shuff & Masland, 26 West High Street, Carlisle, PA 17013, You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a court order compelling you to comply with it, SYLVIA KUTCHto\AN , individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs v. MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-976 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: MINDY S. STRALEY c/o James G. Nealon/Esquire NEALON & GOVER 310 Market Street Harrisburg, PA. 17101 COMMONWEALTH OF PENNSYLVANIA c/o Daniel R. Goodemote, Esquire Office of Attorney General Torts Litigation Unit 15th Floor, Strawberry Square Harrisburg, PA. 17120 PENNSYLVANIA PERCS, INC. 6375-8 Baseshore Road Mechanicsburg, PA. 17055 '" CAMP HILL BOROUGH c/o C, Kent Price Esquire THOMAS, THOMAS & HAFER 305 N. Front Street Harrisburg, PA. 17101 plaintiffs, Sylvia Kutchman, individually and William Kutchman, as Executor of the Estate of Joseph Kutchman intend 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. I f no obj ection is made, the subpoena may be served. Date: "3-"'2.1- q 8 SAlOl/SHUFF & ~LAND By: ' Dtf- co t D. Moore, Esquire Supreme Ct. I.D. # 55694 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for plaintiffs THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Scott D. Moore. Esauire Address: 26 West Hioh Street Carlisle, PA 17103 Telephone: (717) 243-6222 Supreme Court ID # 55694 Date: Seal of the Court BY THE COURT: ( ~: \ I J Prothonotary , Deputy .. f I .~~.;;: VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. c.s. ~ 4904, relating to unsworn falsification to authorities. DATED: oad ~",/1J'5' ~~..,,~ .' ,/ William Kutch an b- CXl ~ ~ .J c:' wQ '" 3~ QC-j' .-' fEfr: .- U._ ~ ~ i:J ::J ~=; ~:; in ,.. 0 0': ,... C"l .1.7. -l r.,;; 't. .-, u.:.LIJ "UJ i!.: u.. ;:J " .,JLL- ,,< -':,; Lt. C'"J ~3 0 C'l U SYLVIA KUTCHMAN, Individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 98.976 CIVIL TERM MINDY S. STRALEY, CAMP HILL BOROUGH, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants : JURY TRIAL DEMANDED ANSWER. NEW MATTER. CROSS CLAIM AND NEW MATTER PURSUANT TO Pa.R.C.P. 22521d) OF DEFENDANT. MINDY S. STRALEY 1.-2. Admitted, upon information and belief. 3. Admitted, however, the current address of the Defendant, Mindy S. Straley, is 6308 Darlington Drive, Harrisburg, Dauphin County, Pennsylvania. 4.-6. Admitted, upon Information and belief. 7. It is admitted that the accident giving rise to the instant civil action occurred on April 5, 1997, at approximately 8:19 a.m., in Camp Hill Borough, Cumberland County, Pennsylvania, at the intersection of South 32"d Street (Route 15) and Harvard Avenue. It is denied that the acc:ident took place as alleged in the Plaintiffs Complaint. 8. It is admitted that on April 5, 1997, at approximately 8:19 a.m., Straley was operating a 1995 Pontiac Fireblrd, Pennsylvania registration no. XGK041 In a general southbound direction on South 32"d Street. The remaining averments contained In paragraph 8 of Plaintiffs Complaint are denied as stated. At the intersection where the accident happened, in addition to two through lanes, South 32"d Street has left turn lanes, one for traffic in a northbound direction to turn Into the Camp Hili Shopping Center, and one for traffic In a southbound direction to turn onto Harvard Avenue. 9. Admitted. 10. Admitted. 11. After reasonable investigation, Defendant, Mindy S. Straley, Is without sufficient knowledge or Information to form an opinion regarding the truth of the averments contained In paragraph 11 of the Plaintiff's Complaint and proof thereof Is demanded. 12. It is admitted that the vehicle being operated by Defendant Straley came In contact with the vehicle being operated by Joseph Kutchman. The accident took place because Joseph Kutchman, suddenly and wilhout warning, pulled his vehicle directly into the path of the Straley vehicle. After reasonable investigation, Defendant, Mindy S. Straley, is without sufficient knowledge or information to form an opinion regarding the truth of the remaining averments contained in paragraph 12 of the Plaintiff's Compialnt and proof thereof Is demanded. 13. Denied pursuant to Pa.R.C.P. 1029(e). 14.-16. The averments contained in paragraphs 14..16 of the Plaintiffs Complaint are directed to Defendants other than answering Defendant and, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. 17. After reasonable Investigation, Defendant, Mindy S. Straley, Is without sufficient knowledge or information to form an opinion regarding the truth of the remaining averments contained in paragraph 12 of the Plaintiff's Complaint and proof thereof is demanded. COUNT ONE. WRONGFUL DEATH ACTION 18. The averments contained In paragraphs 1-17 above are incorporated herein by reference. 19.-22. Denied pursuant to Pa.R.C.P. 1029(e). COUNT TWO .. SURVIVAL ACTION 23. The averments contained in paragraphs 1-22 above are Incorporated herein by reference. 24. Denied pursuant to Pa.R.C.P. 1029(e). COUNT THREE .. PLAINTIFF SYLVIA KUTCHMAN 25. The averments contained in paragraphs 1-24 above are incorporated herein by reference. 26.-31. Denied pursuant to Pa.R.C.P. 1029(e). NEW MATTER 32. The Plaintiff's claims are barred In whole, or in part, In accordance with the Pennsylvania Motor Vehicle Responsibility Act, 75 Pa.C.S.A. ~1701 et. seq. 33. The Wrongful Death and Survival Action claims are barred In whole, or in part, In accordance with the Pennsylvania Comparative Negligence Act due to the contributory negligence of the decedent, Joseph Kutchman. CROSS CLAIM DIRECTED TO DEFENDANTS. CAMP HILL BOROUGH. COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF TRANSPORTATION AND PENNSYLVANIA PERCS. INC. 34. The averments contained in Plaintiff's Complaint directed to Defendants, Camp Hili Borough, Commonwealth of Pennsylvania, Department of Transportation and Pennsylvania PERCS, Inc., are incorporated herein by reference without admission or adoption. 35. The accident more fully described In the Plaintiff's Complaint was the direct and proximate result of the negligence, carelessness and/or recklessness of Defendants, Camp Hili Borough, Commonwealth of Pennsylvania, Department of Transportation and Pennsylvania PERCS, Inc. 36. This New Matter Is filed to protect the rights of answering Defendant to contribution and/or indemnity from Defendants, Camp Hill Borough, Commonwealth of Pennsylvania, Department of Transportation and Pennsylvania PERCS, Inc. NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) DIRECTED TO WILLIAM KUTCHMAN. EXECUTOR OF THE ESTATE OF JOSEPH KUCTHMAN. DECEASED 37. Paragraphs 1-36 above are incorporated herein by reference. The accident giving rise to the instant civil action and the Injuries sustained by Plaintiff, Sylvia Kutchman, were a direct and proximate result of the negligence, careless and/or reckless conduct of the decedent, Joseph Kutchman, as follows: a. operating his vehicle In a reckless manner; b. falling to stop for a red traffic signal; SYLVIA KUTCHMAN, Individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 96-976 v. MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND CROSSCLAIMS ON BEHALF OF DEFENDANT CAMP HILL BOROUGH 1. Admitted. 2. Denied. After reasonable investigation, Defendant Camp Hill Borough Is without information or knowledge sufficient to form a belief as to the truth of the allegations. 3. Denied. After reasonable investigation, Defendant Camp Hill Borough is without information or knowledge sufficient to form a belief as to the truth of the allegations. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 6. Admitted. 9. Admitted. !' I , \' , 10. Admitted. 11. Denied in accordance with Pa.R.C.P. 1029(e). 12. Admitted in part, denied In part. After reasonable investigation, Defendant " "J Camp Hill Borough Is without information or knowledge sufficient to form a belief as to the severity of the Injuries sustained by Plaintiff Sylvia Kutchman. The remaining allegations are admitted. 13. The allegations are directed to a party other than Defendant Camp Hill Borough and, therefore, no answer is required. 14. Denied. It is specifically denied that the subject accident, injuries and damages were caused or contributed to by any careless and/or negligent conduct on the part of Defendant Camp Hill Borough. The remaining allegations are denied in accordance with Pa.R.C.P. 1029(e). 15. The allegations are directed to a party other than the answering Defendant and, therefore, no answer is required. 16. The allegations are directed to a party other than Defendant Camp Hill Borough and, therefore, no answer is required. 17. Denied. After reasonable investigation, Defendant Camp Hill Borough is without infonmation or knowledge sufficient to fonm a belief as to the truth thereof. COUNT I WRONGFUL DEATH ACTION 16. The answers set forth above in Paragraphs 1 through 17 are incorporated herein by reference. 19. Denied in accordance with Pa.R.C.P. 1029(e). 20. Denied in accordance with Pa.R.C.P. 1029(e). 2 21. Denied In accordance with Pa.R.C.P. 1029(e). 22. Denied. It Is specifically denied that the losses and injuries complained of were caused or contributed to by any careless and/or negligent conduct on the part of Defendant Camp Hill Borough. WHEREFORE. Defendant Camp Hill Borough demands judgment In its favor and it ~ I against Plaintiffs. COUNT II SURVIVAL ACTION 23. The answers set forth above in ParagraphS 1 through 22 are incorporated herein by reference. 24. Denied. It is specifically denied that the losses and injuries complained of were caused or contributed to by any careless and/or negligent conduct on the part of Defendant Camp Hill Borough. WHEREFORE, Defendant Camp Hill Borough demands judgment in Its favor and against Plaintiffs. COUNT III PLAINTIFF SYLVIA KUTCH MAN 25. The answers set forth above in ParagraphS 1 through 24 are incorporated herein by reference. 26. Denied. It Is specifically denied that the losses and injuries complained of were caused or contributed to by any careless and/or negligent conduct on the part of Defendant. 3 27. Denied. After reasonable investigation, Defendant Camp Hill Borough is without infonmation or knowledge sufficient to form a belief as to the truth of the allegations. 28. Denied. After reasonable investigation, Defendant Camp Hill Borough is without information or knowledge sufficient to form a belief as to the truth of the allegations. 29. Denied. After reasonable investigation, Defendant Camp Hill Borough is without infonmation or knowledge sufficient to form a belief as to the truth of the allegations. 30. Denied. After reasonable investigation, Defendant Camp Hill Borough is without infonmation or knowledge sufficient to form a belief as to the truth of the allegations. 31. Denied. It is specifically denied that the losses and injuries complained of were caused or contributed to by any careless and/or negligent conduct on the part of Defendant Camp Hill Borough. WHEREFORE. Defendant Camp Hill Borough demands judgment in its favor and against Plaintiffs. NEW MATTER 32. Plaintiffs' claims may be barred or limited by the provisions of the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S,A. Section 1701 et seq., as amended. 33. Plaintiffs' claims may be barred or limited by the provisions of the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. Section 8541 et seq., as amended, and all defenses contained therein are incorporated by reference. 4 34. Plaintiffs' recoverable damages, if any, are limited by the provisions of the Political Subdivision Tort Claims Act, 42 Pa.C.SA Section 6553, as amended. 35. The subject traffic control signal did not malfunction and was not malfunctioning at and immediately prior to the time of the accident in question. 36. Should it be judicially determined that the subject traffic control signal malfunctioned or was malfunctioning at or immediately prior to the time of the accident in question, which is specifically denied, then Defendant Camp Hill Borough did not have actual notice of said condition, nor could Defendant Camp Hill Borough be charged with notice of said condition under the circumstances at a sufficient time prior to the accident to have taken remedial or other measures to protect against the condition. 37. The Defendant did not have notice, written or otherwise, of the allegedly dangerous condition, or In the alternative, if said notice was received, it was not received in sufficient time prior to the alleged accident for the Defendant to have corrected or to have warned the traveling public of the allegedly dangerous condition. 36. If the accident occurred as alleged, then the condition complained of did not cause the accident or the injuries complained of. 39. At all times relevant hereto Defendant Camp Hill Borough acted in a reasonable and responsible manner, including but not limited to contracting with a qualified and competent entity for the inspection, maintenance, service and repair of traffic control signals within the Borough of Camp Hill, including the subject traffic control signal. 40. If negligence is found to exist on the part of the Defendant, the existence of such negligence being specifically denied, said negligence was not the proximate cause of Plaintiffs injuries. 5 41. The subject accident was caused by the acts or omissions of others over whose conduct the Defendant had no control or duty to control. 42. Plaintiffs decedent was negligent and was the sole cause of the subject accident in that he: a.) Failed to keep a careful and diligent watch for traffic and other conditions on the highway; b.) Failed to have his motor vehicle under adequate and proper control; c.) Inattentively operated his motor vehicle; d.) Drove his vehicle into an intersection against a red traffic light controlling his lane and direction of travel; e.) Failed to observe the rules of the road, Acts of Assembiy and/or Local Ordinances, particulariy with reference to bringing vehicles to a stop at a red traffic signal. 43. Plaintiffs' claims are barred or limited by operation of the Comparative Negligence statute, 42 Pa.C.S.A. 97102, due to the negligence of the Plaintiffs' decedent. WHEREFORE, Defendant Camp Hill Borough demands judgment in its favor and against Piaintiffs. NEW MATTER IN THE NATURE OF A CROSSCLAIM AGAINST THE CO-DEFENDANTS 44. Liability on the part of Defendant Camp Hill Borough is specifically denied. 45. If the avenments contained in the Complaint are established, said avenments being specifically denied insofar as they relate to Defendant Camp Hill Borough, then the injuries and damages complained of were caused solely by one or more of the co- Defendants. 6 , I . i I \ VERIFICA TIOhl I, C. Kent Price, state that I am attorney for Defendant Camp Hill Borough that I make this Verification on behalf of Defendant Camp Hill Borough and that 1 am familiar with the facts and allegations set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my knowledge, infonmation and belief. This verification and statement is made pursuant to 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities. DATE: 5)05 }qS rxJ6 ~ C. Kent Price, Esquire >;: ~ L} If; ~ C.:': ~": lIJ~:; ') " ("\-:.0 " J r'~ 1.,..' , :'i; d: ~!_' u.. or~ ~':i C' , r.!.)!,'," (".1 .:; UJI.- \ . ~ """'I ;~ ";~ w: .;' :--. 7j ,','j j.....:: _1:::: rd C- 1:. (0 _".J U 0'\ \..) SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-976 CIVIL TERM MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS,INC., Defendants JURY TRIAL DEMANDED PLAINTIFFS REPLY TO DEFENDANT MINDY S. STRALEY'S NEW MATTER AND NOW, comes Plaintiffs Sylvia Kutchman, individually and William Kutchman, as executor of the Estate of Joseph Kutchman, by and through their attorneys, SAIDIS, SHUFF & MAST..AND in replies to Defendant Mindy S. Straley's New Matter and in support thereof represents as follows: 32-33. The averments of paragraph 32 and 33 are conclusions of law to which no responsive pleading is required. WHEREFORE, Plaintiffs respectfully request the Court to enter judgement in their favor and against Defendant Mindy S. Straley. Date: S-" 12.'''''18 Respectfully submitted, SAIDIS, & MASLAND SAlOIS, SHUFF & MAS LAND A1TORNEVSeATelAW 26 W. IIISh 51ree. c",II.I., PA By: ~ 0 D. Moore, Esquire Supreme Ct. I.D. #55694 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs >- ", r_': u; ., ~!: .. .., IU~~ .:; :{~E <. ',...- -- f:tr:-t ~..- ll.,J.. U. (') ::j ('~(-i "" '..- <"'J '"{.."J u.: .)X ~I_, ,~_. .;...~ - -," >:: iL"~t] a:.'l' ". me.: f..= ... .....; - ::) II, co 0 0' c.) 4, Aller reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant, 5. Denied, Answering Defendant is a Pennsylvania corporation with a principal place of business located at 6375 #8 Basehore Road, Mechanicsburg, PA 17055. 6. After reasonable investigation, answering Defendant lacks infonnation or knowledge sufficient to fonn a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 7. After reasonable investigation, answering Defendant lacks infonnation or knowledge sufficient to fonn a belief as to the truth of the avennents contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 8, After reasonable investigation, answering Defendant lacks infonnation or knowledge sufficient to fonn a belief as to the truth of the avennents contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 9. After reasonable investigation, answering Defendant lacks infonnation or knowledge sufficient to form a belief as to the truth of the avennents contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. ] O. After reasonable investigation, answering Defendant lacks infonnation or knowledge sufficient to fonn a belief as to the truth of the avennents contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. -2- II. Denied, Pennsylvania PERCS is an independent contractor that was hired by Camp Hill Borough to maintain and repair the traffic light at the intersection of South 32nd Street (Route IS) and Harvard Avenue upon the request of Camp Hill Borough, It is further admitted that answering Defendant had no notice before the accident on April 5, 1997 that the traffic light was at all defective, Moreover, answering Defendant was asked to examine the traffic light after the accident and did not find anything wrong with it. 12, After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 13. This allegation does not refer to answering Defendant and thus need not be addressed. 14, This allegation does not refer to answering Defendant and thus need not be addressed. 15, This allegation does not refer to answering Defendant and thus need not be addressed. 16, (a-t) Said averments contain legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averments contained in this paragraph are denied. 17. After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. COUNT 1-- WRONGFUL DEATH ACTION 18. The responses contained in paragraphs I through 17 of Defendants' Answer are incorporated herein by reference. -3- 19. Said avennents contain legal conclusions to which no rr.sponsive pleading is required, To the extent that an answer is required, the averments contained in this paragraph are denied, 20, Aller reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 21. After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 22, Said averments contain legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averments contained in this paragraph are denied, WHEREFORE, answering Defendant respectfully requests that Plaintiffs' Complaint be dismissed in its entirety. COUNT 11-- SURVIVAL ACTION 23. The responses contained in paragraphs 1 through 22 of Defendants' Answer are incorporated herein by reference. 24. (a-e) Said averments contain legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averments contained in this paragraph are denied, WHEREFORE, answering Defendant respectfully requests that Plaintiffs' Complaint be dismissed in its entirety. -4- COUNT 11I-- PLAINTIFf" SYLVIA KUTCHMAN 25. The responses contained in paragraphs I through 24 of Defendants' Answer are incorporated herein by reference, 26, (a-j) Said averments contain legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averments contained in this paragraph are denied, 27, After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 28. After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the avennents contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant, 29. After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 30. After reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 31. Said avennents contain legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averments contained in this paragraph are denied. -5- WHEREFORE, answering Defendant respectfully requests that Plaintiffs' Complaint be dismissed in its entirety. NEW MA TIER 32, The responses contained in paragraphs 1 through 24 of Defendants' Answer are incorporated herein by reference, 33. The Plaintiffs may have failed to state a cause of action upon which relief can be granted. 34, The applicable Statute of Limitations may have expired prior to the institution of this action, 35. Answering Defendant was not negligent. 36, Any acts or omission of answering Defendant alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by the Plaintiffs, 37, The incident and/or damages described in Plaintiffs' Complaint may have been caused or contributed to by the Plaintiffs, 38. The negligent acts or omissions of other individuals and/or entities may have constituted intervening superseding causes of the damages and/or injuries alleged to have been sustained by the Plaintiffs. 39. The Plaintiff may have assumed the risk. The Plaintiff may have been contributorily negligent. -6- 40, The incident, injuries and/or damages alleged to have been sustained by the PlaintilTs were not proximately caused by answering Defendant. 41. PlaintilTs' recovery in this case, if any, is limited by the provisions of75 Pa, C.S.A. Sections 1720 and 1722. NEW MATIER CROSS-CLAIM PURSUANT TO PA RoC.P. ~2252(d) AGAINST DEFENDANTS MINDY STRAILEY. CAMP HILL BOROUGH AND COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF TRANSPORTATION 42, Paragraphs I through 42 are incorporated herein by reference as if fully set forth herein, 43. The actions and/or omissions of Defendant Strailey, Camp Hill Borough and Commonwealth of Pennsylvania, Department of Transportation, were either solely or severally the cause of the injuries alleged to have been sustained by PlaintilTlDecedent. 44, If it is adjudicated that answering Defendant is liable to PlaintilT, said liability being specifically denied, then Defendants Mindy Strailey, Camp Hill Borough, and Commonwealth of Pennsylvania, Department of Transportation are either solely liable, liable over to answering Defendant and/or jointly and severally liable with answering Defendant and, consequently, answering Defendant is entitled to contribution and/or indemnification from either or all Co-Defendants. -7- WHEREFORE, Defendant Pennsylvania Peres requests this Honorable Court to enter I I;' I :1" f( L ~ ' i ~ judgment in their favor and against all other parties. POST & SCHELL, P.C, BY: ~ JOSEPH G. MUZIC, ESQUIRE Attorn~/l.D. No: 55919 Attorney for Defendant Pennsylvania Peres 237 N. Prince Street Lancaster, PA 17603 (717) 291-4532 '" DATE: (r-f'lltJ- , .\ ) { ( ~ -8- CERTIFICATE OF SERVICE I, Joseph G. Muzic, Esquire do hereby certifY that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. Scott Moore, Esquire 26 West High Street P.O. Box 560 Carlisle, PA 17013-0560 James G. Nealon, III, Esquire 30 I Market Street 9th Floor P,O. Box 865 Harrisburg, P A 17108-0865 Daniel R. Goodemote, Esquire Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 POST & SCHELL, P.C. BY: DATE: 5/ttf hI( JOSEPH G. ZIC, ESQUIRE Attorney I. . 0: 55919 Attorney for Defendant Pennsylvania Percs 237 N. Prince Street Lancaster, PA 17603 ,,>. L() r= tr; C' ....- , , -~~~ > ~ .' U.I..", '(21;.:, :r;: .. , \-1.__ <'-. ,. ,lJ4.--- ( C)';' , :. ,,\...' ,~.""';l :' 'c.',' ~ . C~ " l.L!"'. .- ({lol' ., :J ,. . n. f" ...... .' l.:. (1.": ~~:i U c.', '..) ~ ; SYLVIA KUTCHMAN, Individually and WILLIAM KUTCHMAN, as Executor of the Estate of JOSEPH KUTCHMAN, deceascd, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNlY, PENNSYLVANIA '1 : CMLACTION - LAW v. : JURY TRIAL DEMANDED RESPONSE OF COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF TRANSPORTATION TO CROSS-CLAIM FILED BY DEFENDANT MINDY S. STRALEY MINDY S. STRALEY, CAMP HILL BOROUGHandCOMMO~TH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION and PENNSYLVANIA PERCS, INC., Dcfendants : NO. 98 - 976 34. Paragraph 34 requires no answer. 35. It is denied that Defendant Commonwealth of Pennsylvania, Department of , I , 36. The allegations of paragraph 36 are conclusions of law to which no I ! I i i I I I L " Transportation was negligent, careless or reckless in any manner whatsoever or that any act or failure to act by answering Defendant was the proximate cause of the accident described in Plaintiffs Complaint. responsive pleading is required. WHEREFORE, Defendant Commonwealth of Pennsylvania, Department of Transportation, demands judgment in its favor and against all other parties. j \ RESPECTFULLY SUBMITTED: D. MICHAEL FISHER ATTORNEY GENERAL BY: 1~tf)~-;t) 'BJ\NIEL R. GOODEMOTE SENIOR DEPUTY ATTORNEY GENERAL ATTY. 1.0. #30986 ! COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL TORTS LITIGATION SECTION 15th FL. - STRAWBERRY SQUARE HARRISBURG, PA 17120 (717) 783-3147 - DIRECT DATED: MAY ~(o, 1998 I- ~I 1\ I . I VERIFICATION '/ ,I I, Daniel R. Goodemote, Senior Deputy Allorney General, In my capacity for Defendant in the within action, hereby verify that the foregoing statements are true and correct to the best of my knowledge, information and belief, and are made subJect to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. BY: /1....'0 (9 tffp ~R.GOODEMOTE SENIOR DEPUTY ATIORNEY GENERAL ATIY. \.D. #30986 DATED: MAY~~, 1998 CERTIFICATE OF SERVICE t hereby certify that I am this day serving the foregoing document(s) upon the person(s) and In the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Scott D. Moore, Esquire SAlOIS, SHUFF & MASLAND 26 West High Street Carlisle, PA 17013 Attorney for Plaintiffs James G. Nealon, Esquire NEALON & GOVER 301 Market Street - 91h Floor P. O. Box 865 Harrisburg, P A 17108-0865 Attorney for Def. Straley Camp Hill Borough 2145 Walnut Street Camp Hill, PA Joseph G. Muzle, Esquire POST & SCHELL, P.C. 237 North Prince Street Lancaster, PA 17603 Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN 320 Market Street - Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 BY:~ -rJANIEL R. GOODEMO (#30986) SENIOR DEPUTY ATIORNEY GENERAL OFFICE OF ATIORNEY GENERAL - TORTS 15th FL. - STRAWBERRY SQUARE HARRtSBURG, PA 17120 (717) 783-3147 - DIRECT DIAL DATED: MAY~(., 1998 \ 'I , :--. -" i :1- ,,- b"'; i...:: r) LJJ '-'... () ~- . rJ: ~_ ' }!-i! .rj,. or U~;li G:\i j-~ It.. t..J co ..oJ ,- 1..- ::..., .... '-1 ':-~I t:1 , - C.':I (" IT~ C\ ~.~ rj / ( ~ '. >~ ..;;. (: I I L'.' V~~~ ,..: f" r;: " ...... , 1._'.. ("- ~ I' ~' I. I 1-: Ic' ".J .:i ;...~ fL ~,-; , I [', .. I,:. ('-' .) U vi (.~ SYLVIA KUTCHMAN, Individually and WILLIAM KUTCHMAN, a8 Executor of the Estate of JOSEPH KUTCHMAN, deceased, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNlY, PENNSYLVANIA /i " I I ), , , 1 v. : CML ACTION - lAW : JURY TRIAL DEMANDED MINDY S. STRALEY, CAMP HILL BOROUGHandCOMMO~TH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION and PENNSYLVANIA PERCS, INC., Defendants l : NO. 98.976 DEFENDANT PENN DOT'S ANSWER TO NEW MATTER CROSS-ClAIM OF DEFENDANT PENNSYLVANIA PERCS 42. Paragraph 42 requires no answer. j ( 43. It is denied that Defendant, Commonwealth of Pennsylvania, Department of Transportation, is either solely or severally the cause of the injuries of the PlaintifflDecedent. 44. Paragraph 44 is a conclusion of law to which no responsive pleading is WHEREFORE, Defendant PennDOT demands judgment in its favor and against required. all other parties. '- RESPECTFULLY SUBMITTED: D. MICHAEL FISHER ATTORNEY GENERAL BY:~...:O &(~.~, IEL R. GOODEMOTE SENIOR DEPUTY ATTORNEY GENERAL ATTY. I.D. #30986 \ , I j ':\ COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL TORTS LITIGATION SECTION 15th FL. - STRAWBERRY SQUARE HARRISBURG, PA 17120 (717) 783-3147 - DIRECT DATED: MayoZO, 1998 . r ., ,.' VERIFICATION I, Daniel R. Goodemote, Senior Deputy Attorney General, In my capacity ror Defendant In the within action, hereby verlry that the foregoing statements are true and correct to the best of my knowledge, Information and belief, and are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn ralslfication to authorities. BY: &~s,~~ SENIOR DEPUTY ATIORNEY GENERAL ATIY. J.D. #30986 DATED: May ~O ,1998 , ' '\' ( ': t" , 1\ ,1, .' I , I, I t!, I CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document(s) upon the person(s) and In the manner Indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Scott D. Moore, Esquire SAlOIS, SHUFF & MASlAND 26 West High Street Carlisle, PA 17013 Attorney for Plaintiffs Mindy S. Straley 1072 Lancaster Boulevard. Apt. #8 Mechanicsburg, PA 1ft Camp Hili Borough 2145 Walnut Street Camp Hill, PA I' , i1 II Joseph G. Muzic, Esquire POST & SCHELL, P.C. 237 North Prince Street Lancaster, PA 17603 ) I , I Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN 320 Market Street - Strawbeny Square P. O. Box 1268 Harrisburg, P A 17108-1268 i i BY: f'h.;1l(~ C.,jJp lJANIEL R. GOODEMOTE (#30986) SENIOR DEPUTY ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL TORTS LITIGATION SECTION 15th FL. - STRAWBERRY SQUARE HARRISBURG, PA 17120 (717) 783-3147 - DIRECT DIAL DATED: May~O, 1998 ~ I "J f! >- 01 r:: rJ~ C'o' -, >.~ 1-.:- .. U.Jq ~~ ~:)< C.le, ,.l__ n.. .'- '._1._,/ " - ,~ ", ;~.~l el':: ,l. . ('.J " C, U_l" "" /~ r.;;--,' ..... ii .t':: :..U j. _I ~1. IJ.. C'.., ::5 u c.' () - . ... SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-976 CIVIL TERM MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS,INC., Defendants JURY TRIAL DEMANDED PLAINTIFFS REPLY TO NEW MATTER and CROSS CLAIMS ON BEHALF OF DEFENDANT CAMP HILL BOROUGH AND NOW, comes Plaintiffs Sylvia Kutchman, individually and william Kutchman, as executor of the Estate of Joseph Kutchman, by and through their attorneys, SAIDIS, SHUFF & MASLAND in reply to Defendant Camp Bill Boroughs' New Matter and Crossclaim in support thereof represents as follows: SAlOIS, SHUFF & MASLAND ATmRN!VS_AT'L-\W 26 W. IIIlh Str..t carlllle, PA 32. of law to 33. of law to 34. of law to 35. Denied. The averments of paragraph 32 are conclusions which no responsive pleading is required. Denied. The averments of paragraph 33 are conclusions which no responsive pleading is required. Denied. The averments of paragraph 34 are conclusions which no responsive pleading is required. Denied. The averments of paragraph 35 are conclusions of law to which no responsive pleading is required. 36. Denied. The averments of paragraph 36 are conclusions of law to which no responsive pleading is required. To the extent that a reeponse is deemed required, it is specifically denied that Defendant Camp Hill Borough did not have actual or conetructive notice of the dangerous condition and/or the malfunctioning traffic control signal. 37. Denied. The averments of paragraph 37 are conclusions of law to which no responsive pleading ie required. To the extent that a responee is deemed required, it is specifically denied that Defendant Camp Hill Borough did not have notice of a dangerous condition. To the contrary, Defendant had notice, either actual or constructive, of a dangerous condition and had received notice in sufficient time, prior to the accident, to prevent it. 38. of law to 39. of law to 40. of law to 41. of law to 42. Denied. The averments of paragraph 38 are conclusione which no responsive pleading is required. Denied. The averments of paragraph 39 are conclusions which no reeponsive pleading is required. Denied. The averments of paragraph 40 are conclusions which no responsive pleading is required. Denied. The averments of paragraph 41 are conclusions which no responsive pleading is required. The averments of paragraph 42 and all sub-paragraphe are conclusione of law to which no responsive pleading is required. To the extent that a response is deemed required, it SAlOIS, SHUFF & MASLAND ATrORNEVS'AT-l.AW 26 W.lIIsh S"..I Carll.le, PA is specifically denied that Plaintiff's decedent failed to keep a careful and diligent watch for traffic and other conditions on the highway, failed to have his motor vehicle under adequate and proper control, inattentively operated hie motor vehicle, drove his vehicle into an intersection against a red traffic light CERTIFICATE OF SERVICE I, Scott D. Moore, Esquire, certify that on the1~ day of June, 1998, I served a true and correct copy of Reply to New Matter to counsel for all parties of record in this matter by depositing same in the United States mail, first class, postage prepaid addressed as follows: James G. Nealon, Esquire NEALON & GOVER 301 N. Market Street Harrisburg, PA 17108-0865 Daniel R. Goodemote, Esquire Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrieburg, PA 17120 Joseph G. Muzic, Esquire POST & SCHELL, P.C. 237 N. Prince Street Lancaster, PA 17603 C. Kent Price, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street Harrieburg, PA 17101 Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street POBox 1268 Harrisburg, PA 17108-1268 SAlOIS, SHUFF & MASLAND A1TORN!Y5.AY'UW 26 W. IIIlh St,... CoI,II,I" PA MASLAND -~~ Moore, Esquire I . ., " VERIFICATION ~ j I verify that the statements made in the foregoing Reply to Ne..... Matter dirp.cted to Plaintiff are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. fi 4904, relating to unsworn falsification to authorities. ., DATED: Q"AaA/J / ~~~ William Kutch an j -... l~ rr, It: ~~ M ,"".. 'U!:! ~5~:!~ <.),:. fi:\- &:: CJ_~> ,'_.1. ,',' ~ :::j 'Tl'-- (", " ac, ... Lo.jl:L ("'J .'. Ct~l_' :-r , " J. r....~ . ~:'i' .... ". C'" e. ll' .:) .... .. SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 98-976 v. MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants : JURY TRIAL DEMANDED CERTIFICATE OF PREREQUISITE TO SERVE A SUBPOENA PURSUANT TO RULE 4009,22 As a Prerequisite to service of a Subpoena for Documents and Things pursuant to Rule 4009.22, Defendant Camp Hill Borough certifies that: 1. A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served. 2. A copy of the Notice of Intent including the proposed Subpoena is attached to this Certificate. 3. No objection to the Subpoena has been received. 4. The Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent. THOMAS, THOMAS & HAFER, LLP C-~~ C. Kent Price, Esquire P.O. Box 999 Harrisburg, PA 17108 I.D. No. 06776 ATTORNEYS FOR DEFENDANT CAMP HILL BOROUGH " ," , , ,-' , f ,. ';, ., : : r ~ ';'; '. ' ," ': .. ". ,\'" "" ,I: , .; h." '....'.'1. "j, ,..,. ".,' .,., '"'" '\' t,., " ,,', '.!' !:.\: , . ., ~ "" ' til~~~f!;;~'7;c.. t}U"..I-;"'t:T""c.." I., --,', 1t=:~-*~,;~S'!~:)- :_..~'1' ~(.tr'::.;':: ~: ~~~:'l,,\I,,"'.;.l.:.1....I~.. ,\.~..' .' . ~~~?0{,:;!;;r:\\":'~;',,:, , ~, ,'"u \, ~. ,..' f,' .... ..~11:::~~ ~~";!<"';" '.~::":~ ~;f :"l~ ".'V~;I.': :':.. ~ ~, . .". ;;. " ""-" ;.. L,;, ,.,' , ','" '.. 'I' ~ . . ",' " \~ . ',' :',: " " " ',- ,;': ,~ :' ,_.' ',' !," .': ., . . '.'J, ',' :>,'.1 :.: '. .~: j' ," ...-r, I"'". .j> ",",: , ... ~ "'" . -; .'" " . . ~ .' " '".' .," ".: '", J~ ".; "', .~ ',.:..:. ,"'" ....' . .. ." ',1,",." ':':"~~>~' . t:' ,', .' '. ~./~\<.'. "",;,' 1,:,> , ' ..' ' w~. ~:-:. ,:::/~~,,';' ,': '.: ',::-,' , , ,',I :,' ".' OJ," CXHfJNWEIU:n1 OF PENlSYLV1INIJ\ COO!fl"l OF aJHBmIJ\ND SYLVIA KUTCIlHAN VS. STRALEY & PERNA. ET AL. Fi Ie No. II 98-976 SUlPOENA TO PROOlX:E DOCtJof:NTS OR TH I OOS FOR 0 I SOOVERY ~SUANT TO RlA..E 4009. 22 DR. CRESTON hF.ROLD (NlI11e of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to prodJce the. following doct.ments or things: !;EE ATTACHED TO: CUSTODIAN OF RECORDS FOR: bt THE MCS GROUP, INC., 1601 HARKET STREET SUITED 800 PHILADLEPHIA,PA. l~lUJ (Address) 'fou may deliver or mai I legible copies of the docunents or produce things requested by this subpoena, together with the certificate of c:arpliance, to the party making this request at the addrf'.ss listed above. You have the right to seek in adv8l'lCl! the reasonable cost of preparing the copies or prodJcing the things sought. I f you fai I to prodJce the docunents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena l1'lly seek a court order carpell ir,g you to c:arply with it. THIS SUBPOENA WAS ISSLeO AT 'TlE REQLeST ~ TrE FQUCWING PERSON: NAME: JOSEPH MUZIC, ESQUIRE ADDRESS: 237 PRINCE STREET IANCASTER.PA. 17603 TELEPHONE: 1'1~) '46-0900 SU'Ret: ~T 10 .. ATTORNEY FOR: DEFENDANT DATE: L "r,-;~L . J ~ I q 9 r Sea I of the CoUrt BY TrE cxun: CUA.L.... R. e~ ~ . Prothonotary/Ol k,v Civil q~u.... k '~L Division Deputy (Eff. 1/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODtAN OF RECORDS FOR: DR. CRESTON HEROLD 550 N. 12TH ST. LEWOYNE, PA RE: 71586 SYLVIA KUTCH MAN Any and all records, correspondence, flies and memorandums, handwrillen notes, billing and payment records, relating to any examination, eonsullation, care or trealmcnt. Dates Requested: up to and inclnding the pl'esent. Subject: SYLVIA KUTCHMAN 1716 LINCOLN DR., CAMP HILL, PA Social Secul'ity #: 186.30-6123 Date or Bil'th: 04-19-19 5U10-158416 7J..S8S-LOJ.. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF. COURT OF COMMON PLEAS KUTCIlMAN TERM, 0000 -VS- CASE NO. 98-976 STRALEY, ET AL NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS DR. CRESTON HEROLD DR. JAMIE HETRICK WILLIAM J. POLACHECK, JR. ,M.D. MEDICAL MEDICAL MEDICAL TO: THOMAS E. BRENNER, ESQUIRE [ note: see enclosed list of all other interested counsel J MCS on behalf of JOSEPH G. MUZIC, 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 ~lCS or by contacting our local MCS office. DATE: 9/29/98 MCS on behalf of JOSEPH G. MUZIC. ESQUIRE Attorney for DEFENDANT CC: JOSEPH G. MUZIC, ESQUIRE - 77509 Any questions regarding this matter, contact THE MCS GROUP, INC. 1601 MARKET STREET #800 PHILADELPHIA PA 19103 (215) 246-0900 DE02-074847 7J..586-C02 , I ~ . I ~I \ >>> COUNSEL LIST <<< PAGE, 1 COUNSEL NAME FIRM NAME REL SCOTT MOORE, ESQUIRE THOMAS E. BRENNER, ESQUIRE DANIEL R. GOODEMOTE, ESQUIRE C. KENT PRICE, ESQUIRE JAMES G. NEALON, III, ESQUIRE L/O OF SCOTT MOORE GOLDBERG, KATZMAN, ET AL OFFICE OF ATTORNEY GENERAL THOMAS, THOMAS & HAFER NEALON & GOVER OPPOSING OTHER OTHER OTHER OTHER DEOZ-074847 7:1.586-002 a::.K~'lW~I..m OF PENNSYLVlINIA CXX1NI'Y OF aJHImlli\Nl) I' ~, \ " SYLVIA KUTCHMAN VS. STRALEY & PERNA, ET AL. File No. II 98-976 .' ;/ SUBPOENA TO PE!QOlX:E OOC1..tENTS OR lli I NGS FOR 0 I SCOVERY ~SLIANT TO RULE 4009. 22 TO: CUSTODIAN OF RECORDS FOR: DR. JAMIE HETRICK (Neme of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to prodJce the following doct.ments or things: SEE ATTACHED 6 'lARKET STREET SUITEU 800 PHILADLEPH1A,~A. l~luJ ~t THE MCS GROUP, INC., 1 01 .' (Address) You may deliver or mail legible copies of the docunents or produce things requested by this subpoena, together with the certificate of carp liance , to the party making this request at the addr~ss listed above. You have the right to seek in advance the reasonable cost of preparing the copies or prodJcing the things sought. I f you fai I to produce the docunents or things required by this subpoe.,;t within twenty (20) days after its service, the party serving this subpoena rray seek a court order c:arPellir:g you to <:arply with it. llilS SUBPOENA WAS 1SSl.eD AT ~ REQUEST OF ~ FOUQliING PERSON: NAME: JOSEPH MUZIC, ESQUIRE ADDRESS: 237 PRINCE STREET LANCASTER,PA. 17603 TELEPHONE: (215) 246-0900 SlA'REl'E ccun 10 II ATTORNEY FOR:. DEFENDANT DATE: 1":t;,,.L. ..23 /"i'7f_ Sea I of the O:lurt BY ~ ~T: (], p~~Lt1;/tIJk.' civi I 0.;..... C /1'L(/.'. - Division Deputy (Eff. 1/97) I- 1:\1 \ CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF. COURT OF COI1l10N PLEAS ,., " .~ j I: KUTCHMAN TERM, 0000 -vs- CASE NO. 98-976 STRALEY, ET AL DATE. 10/19/98 JOSEPH G. MUZIC, ESQUIRE Attorney for DEFENDANT As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of JOSEPH G. MU2IC, ESQUIRE defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served. (2) A copy of the notice of intent, including the proposed subpoena, is attached to the certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DEll-065041 7 :L 5 a 6 - L 0 3 r COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: COURT OF CO~10N PLEAS KUTCHMAN TERM, 0000 -VS- CASE NO: 98-976 STRALEY, ET AL NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS DR. CRESTON HEROLD DR. JAMIE HETRICK WILLIAM J. POLACHECK, JR. ,M.D. MEDICAL MEDICAL MEDICAL TO: DANIEL R. GOODEMOTE, ESQUIRE [ note: see enclosed list of all other interested counsel] MCS on behalf of JOSEPH G. MUZIC, ESQUIRE intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (ZO) 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: 9/Z9/98 MCS on behalf of JOSEPH G. MU2IC, ESQUIRE Attorney for DEFENDANT CC: JOSEPH G. MUZIC, ESQUIRE - 77509 Any questions regarding this matter, contact THE MCS GROUP, INC. 1601 MARKET STREET #800 PHILADELPHIA PA 19103 (215) 246-0900 DE02-074848 7~5a6-C03 , , CCfMJNWIWlIll OP PrnNSYLlf1INJA COUNl'i' OF aiMnmr.ANo SYLVIA KUTCIIMAN VS. STRALEY & PERNA, ET AL. File No. II 98-976 SUlPOENA TO PBOOU::E oo::LH:NTS 00 TH f NGS FOR 0 I srovERY MSUANT TO RULE 4009. 22 CUSTODIAN OF RECORDS FOR: DR. WILLIAM POLACHECK (NSIle of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the COUrt to produce the fOllowing documents or things: SEE ATTACHED TO: U INC., 1601 MARKET STREET SUITEII 800 PHILADLEP lit _ THE MCS GRO P, (Address) ., 'fou may deliver or mail legible copies of the docunents or produce things requested by this subpoena, together with the certificate of CCII'pliance, to the party making this request at the addrf'oSS listed above. You have the right to seek in advllrlC1! the reasonable cost of preparing the copies or producing the things sought. I f you fai I to produce the docunents or things required by this subpoen'l within twenty (20) days after its service, the party serving this subpoena rray seek a court order c:cn-Pe 11 ing you to c::arp Iy with it. \ . I THIS SUBPOENA WAS 1SSle) AT 'TlE REQleST OF 'TlE FCtiOWfNG PERSON: NA/oE: Tn~"1>1l MT1ZTC. ESOUIRE ADDRESS: 717 PRTNCE STREET T^MrA~~~PrPA 17601 TELEPI-OlE: SlA'REI'E CXJUrr A TTOflNEY FOR: DATE: (7'5) ?/!,;-nQOO 10 .. DEFENDANT ^ .1,rr..L.. ,) '1 /q 91/ S I of the O:ltirt BY 'TlE ~T: Ct.u....'C..-,. Ii? .t''>t...q 1--0- ') Prothonotary/c'Ier-k, Civi I 01-y"-< C. )1ktj,L:'" Division Deputy (Eff. 7/97) ;;', >- c', f:.; cr. ,,.-; ~~ S] u/':' ()"-. " . ..-< \-1-".' ...... , l"1 r: " ~s' (" ,') :'9"" C'l d.':..:: u;.ll : r- l'I'...lJ "r ~l : l.: 0... t.' c :.1; u. ,.... ::') ., 0 (l' lJ romombor soolng tho traffic signal for their vehicle prior to or after the accident since she WBIJ not driving tho vehicle. 5. Mrs. Kutchman has subsequenlly given conflicting statements to the effect that the traf/lc signal for their vehicle may have been green prior to or after the accident. 6. Plalnllffs' Complaint contains the following allegallons of negligence against Defendant Camp Hili Borough: a. Failing to design, construct and maintain the Intersection In a safe condition for ordinary travel; b. Allowing a dangerous condition to exist at the aforemenlloned intersection; c. Allowing the traffic signals to malfunction; d. Failing to make necessary repairs to the traffic signals and/or intersection design at the aforemenlloned intersection; e. Failing to exercise its authority to properly maintain the traffic signals at the intersecllon; and f. Failing to take necessary and reasonable steps to improve the safety of the said intersection. 7. Insofar as the poir,t of the accident is concerned, the impact occurred in the right southbound lane of State Route 15, a state-owned highway, and did not involve a roadway owned by Defendant Camp Hill Borough. 8. Discovery has failed to produce any physical or mechanical evidence of the existence of a conflict with or malfunction of the traffic signals at or immediately prior to the subject accident. 9. To the extent that there may be a disputed issue of material fact as to the existence of a conflict with or malfuncllon of the traffic signals, there is no evidence that Defendant Camp Hill Borough had actual or construcllve notice of any such condition at a sufficient time prior to the subject accident to have taken measures to protect against the condition. 10. There Is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. 11. Defendant Camp Hill Borough is enlltled to summary jUdgment as a matter of law. WHEREFORE, Defendant Camp Hill Borough respectfully requests that this Honorable Court enter summary jUdgment in its favor and against all other parties hereto. THOMAS, THOMAS & HAFER, LLP 0-6 ~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 J.D. No. 06776 :93200.1 ATTORNEYS FOR DEFENDANT CAMP HILL BOROUGH CERTIFICATE OF SERVICE f I " I, Miehne) A. (]oomsl11n, Esqnire, ullorney for Dcrendnnt, Pennsylvnniu Peres, hereby stule ,I thut the within foregoing document wus sent by first-cluss l11uil, postuge prepuid on the dute set forth to the following: Joseph L. Hitchings, Esquire SAID IS, GUIDO, SHUFF & MAS LAND 2)09 Mnrket Street Camp Hill, PA 17011 Thomas E. Brenner, Esquire GOLDBERG,KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, P A 17108-1268 James G. Nealon, III, Esquire 301 Market Street 9th Floor P.O. Box 865 Harrisburg, P A 17108-0865 Daniel R. Goodemote, Esquire Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 C. Kent Price, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street Harrisburg, PA 17101 Dated: __..'2_!_'3JOO , Esquire ..... CI 0: !;;: N Z ,- ,- ::') <'i U.I~;! .:t ():.:.;) (I?r~ .., C)~: .-, fl. 'j ~, :::l:::J llf:', .;0'"'10- T I.. c> -:,'(1] C,~j: ,,)%. LI_I"" '1'~7 :.fL. I :-- ~LlCCI L1- ..- .-:~ I_IJ(.l... F :.c ..'.: I.l.. C'> :-:J 0 <::) 0 ',,,, .~. i::'; . , iIlI~j. ,..,tl\ . '.f;f. {.;,'. " ?\ L k I M! I I ( I " \ ", \ '. , l' . ., ': ',-,:;' ....;.. i::','} <-;. ':,'-; . ~';::' ,.oj , '(-'>;:1' .j ....."" ..'\:'; .' 'I t', :,' ~~.' \'~(~,F', ~>";:,: \'..,>:..~:,lt:\;;'3} :\.~:\:-' '.'~' ~;~: ,CERTIFIEO ~OPY; ;1IY/~:~b~\',~:\[;liti ,. d.:~, ;t ,"." ",', .::: ";:,:'t:~:r'<~::,,,~";)dt~ll :,.,' ',',,-, '::"-<"~ ~\. {'}_"'\\:;~'~~~;",\l. ;~:r::,?Ji1~1 ::," ':'. ,:Jurfi{'7"n' .'.",.' 1',,\\1ili~'V (",'C :::~' :<~'/ ~\:,/:~,:,:;'\): ~.:;.::-;,,:)_r,i:,i:.' (,.:A;~ ::;-...e I?, _ .~ ~~~~~?;;~~l~ J ~'f '~'i;b;lVi.~\~(;;-?~ <'"J..';'; l..:~,'jc> >,':'0' \: ,~...-,;.' \~~('i1'_'i15,':.1:_1,1 t. ,,_,,__. ,.._ J. ,., T. ,.. '" -. " ..... ~~},tM::1;J~~:{; LAVI.OFFICES ~'~X:;,<-:'}::'::::-,< ';-",;: Sr\IDIS; SI;IUFF,& MASLAND"~ ., . '.A\"".!\ir~."r:'I,~y..,,;,t::~-,:2\~~'~,:;' <.: f',~"", I.. ';', ,', ," r 2~)V,:~I~H mEET,,~;.:::i,\ 21119.~ARK~ SIRm,,. t;J, > ~CA.R~!~~~;P!, 17pI3;'.;,~:.;:. .'CAMP IIILL. PA,1701l, l~;~~E~~~~\'!~~ 2~~;,~2,2;J;.\?_~^ \ :':P.~~~E (?!7) 731:340,' ,.... " .../....., ,. ''',. ,:':"-:.c ,.'.' -,-;" '" ';"",'-'>" ",' "-'i '......,..',.','. ",l .~ '".', ,-.. .-,.' ,>,,',-." -,',,-' --------'--- .~ , ! < . ,~' . , .. , 'I :''" ;.f:.~ '~j .' " I' . -""""""',A ';' ............,-~ _. 'j ) I " , , ...',...tf.'l ~.~ ", . It . -4/; ..:~' .:'. '", . . 'J." '"..... ',.' "l. '. /..w -\. " I. .. ~ ~. \'. t..:'c.' "'J1"to',;' t'o .... . , '. .~ " , . :;'-. '. ..... ": " '" .1 ,:#$. i , t~."..~" x i('/ ./::. \ .-, 'i l( I ,{~ . ',.. . , \, ~ ,. . I " ~ ,,.- 'i- . '.......,. " ~ , ; 1'\ . Ib.., ..)':-"~: ',,," , , SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs : IN THE COURT OF CO~IMON PLEAS :CUMBERLN,D COUNTY, : PENNSYLVANIA v. NO. 98-976 CIVIL TERM MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, on this ~ day of Rule is entered on the -::\ ,\ \ l . " Defendants to show cause why the Petition , 2000, a should not be granted, .... Rule returnable within I~ days from service hereof. BY THE COURT, /' ; SYLVIA KUTCHMAN, individually and 1'iI LLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs : IN TIlE COURT OF COMr~ON PLEAS :CUMI3ERLAND COUNTY, : PENNSYIJVANIA v. NO, 98-976 CIVIL TERM MINDY S. STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants JURY TRIAL DEMANDED ORDER AND NOW this day of , 2000, upon consideration of the attached Petition, it is hereby Ordered and Directed as follows: 1, Sylvia Kutchman and William Kutchman as Executor of the Estate of Joseph Kutchman are authorized to execute a release in favor of Defendant Mindy S, Straley in return for the lump sum payment of $15,000.00, 2, Said proceeds shall be distributed as follows: (a) $6,000.00 to Saidis, Shuff & Masland as payment SAlOIS. SHUFF & MAS LAND ATrORNEYS'AT.L\W 26 W, "ISh Str..t CollI.I.. p^ of legal fees and unreimbursed costs and expenses; (b) $7,000.00 to Sylvia Kutchman for wrongful death damages. (c) $2,000.00 to William Kutchman as Executor of the Estate of Joseph Kutchman, deceased, as survival damages. BY 'I'HE COURT: Date J. SAIDIS, SHUFF & MAS LAND AtTORNEYS'AT'lAW 26 W. "Ish 51,..1 Carlisle, PA 10, Sylvia KutchmoJn p1-cviouuly settled hel' claims for personal injurics a1'ising out of tlw accident against hC1' deceased husband'D cDtate, 11, Pursuant to the Power of Attorney/Contingency Fee Agreement attached hereto as Exhibit "A", Saidis, Shuff & Masland is to receive 40% of the total settlement or $6,000,00. 12, After attorneys fees and costs are taken out, Petitioners propose the settlement funds from Defendant Mindy Straley be allocated as $7,000,00 to Sylvia Kutchman as "wrongful death damages" and $2,000,00 to the Estate of ~lilliam Kutchman as survival damages, This apportionment is reasonable based on the fact that Mr, Kutchman only survived for three hours following the accident, during which time he was not conscious. 13, The parties entitled to share in the damages of the survival action are Sylvia Kutchman, William Kutchman and Janet K, ! Lush, pursuant to William Kutchman's will, which is attached hereto as Exhibit "B", 14, All the parties named in Paragraph 13 believe that the proposed allocation is fair and reasonable and consent to the SAlOIS, SHUFF & MASLAND ATrORNEYS'AT.lAW 26 W. IIIsh Str..t carlisle, PA same, WHEREFORE, petitioners' request that an Order be entered approving the proposed allocation on behalf of Sylvia Kutchman 3 ~ POWER OF ATTORNEY CONTINGENCY FEE AGREEMENT KNOW ALL MEN BY THESE PRESENTS that the undersigned: 1. Do hereby nominate, constitute and appoint SAIDIS, GUIDO, SHUFF & MASLAND, as their true and lawful attorney in the matter of their claims for any and all damages arising from an accident involving Joseph Kutchman and Sylvia Kutchman which occurred on or about April 5, 1997 in Camp Hill, Cumberland County, Pennsylvania against any person, firm corporation or other entity who or which may be legally responsible therefor, and we do hereby authorize our said attorney to investigate, bring suit or to settle and compromise the said claims. NO SETTLEMENT SHALL BE MADE WITHOUT OUR PRIOR APPROVAL. 2 _ Agree that the compensation of said 'attorneys for services rendered in the investigation and prosecution of said claims shall be forty percent (40%) of any sums recovered by way of settlement or verdict plus, The remainder of the balance of any sum recovered after deduction of said counsel fees shall be paid to Sylvia Kutchman or the Estate of Joseph Kutchman. 3, Understands that should no sums be recovered by suit or settlement, our attorneys will have no claim against us for any 1\; fee for services rendered, and will not be entitled to reimbursement for any costs and expenses incurred in the investigation and/or prosecution of this case, We agree that in the event we discharge attorneys prior to resolution of the case, 'I ,I attorney shall be entitled to compensation. In such case, compensation shall be either on a quantum meruit basis or forty percent of any settlement offers which have been made at the time of discharge, In addition to such compensation, attorneys shall be entitled to reimbursement of all costs incurred up to the time of discharge, 4, We agree that the said attorneys accept said employment , on the condition that they will investigate the claim and, if it appears to be a justifiable and recoverable claim in their judgment, they will proceed to handle the same; but if, after investigation, the claim does not appear to be either justifiable and/or recoverable, then said attorneys shall h&ve the right to rescind this Agreement and have no further responsibility to us or for prosection of this claim. Under no circumstances shall our attorneys have the responsibility to prosecute the claim for any amount in excess of the uncontested liability insurance coverage applicable to the claim. 5, Represent that no other person has been retained to represent Sylvia Kutchman or the estate of Joseph Kutchman in connection with this matter. 6. Acknowledge receipt of a copy of this Agreement. IN WITNESS WHEREOF, intending to be legally bound hereby, we have hereunto set our hands and seals, /, ~ "'/ /1/1_ DATED: ~.(~Z; ~u. / // / / . ....iJ.'o\. a Kutcnman, Individually and As eneficiary to the Estate of Joseph Kutchman / / /' , ., ) '/ . .....- /(.-- {: . ,,/~,. //.:-' . ~ ...- ",";.y-,;'r.7 i"'O/#,,, / Willia~'K~tchman, ix;~ut~r '~i the Estate of Joseph Kutchman SAlOIS, MASLAND , BY: ~cott D. Moore, Esquire As caeh of the grandchildren attains the age of 25, my trustecs shall pay all of the thcn remuining balance of said grandchild's trust to him or her, 3. Ifany grandchild for whosc benefit the trustee holds a separatc trust dies before distribution of the entirc shure held for the benefit of said grandchild, the principal and any accumulated and undistributed income of the share shall then be distributed to the grandchild's issue, Should any grandchild die and have no issue surviving, including afterbom issue, then the remaining prineipnl and accumulated and undistributed income of the share shnll be distributed to my other grandchildren or his or her issue, as the case may be, and held and managed in accordance with the terms and conditions of this trust. 4, No interest in income or principal shall be assignable by, or available to anyone having a claim against, a beneficiary before actual payment to the beneficiary . V -I appoint my son, William J. Kutehman, Executor of this, my Last Will and Testament. Should my said son fail to qualify or cease to act as such, then I appoint my wife, Sylvia M, Kutehman, to act in this capacity, Should she fail to qualify or cease to act as such, then I appoint John E, Slike to act in this capacity. None of my personal representatives shall be required to post bond in this or any jurisdiction, IN WITNESS WHEREOF, I have hereunto set my hand and seal on this the Cf 71- day of () rl' IJ be."" , 1996. r~J::r!:.:~ (SEAL) Page 3 Sf [: ~i , ; '......,.......,.t_ , Signed, sealed, published and declared by JOSEPH KUTCHMAN, Testator therein named, on this and three (3) other sheets of paper as and for his Last Will and Testament, in our presence, who, in his presence, at his request, and in the presence of each other, have hereunto subscribed our names as attesting witnesses, JL~~~l- ~ ~g~//~A ~~ 74 ~ ame Address ~;., c2. ~~ Name ~7'~~ Addres ~ . , " Page 4 ) ',: ..,'......_",.~.'.',IVU..ln''''l:tJ.I..:..~... .. . .......,11.... .", ..:.":."3~r.;;t.':;::':"..~~;.::.:'1:~~:c.;-~,...,'~. '" ...,.,,~. COMMONWEALTH OF PENNSYLVANIA) CUMBERLAND) SS. COUNTY OF WE, the undersigned, the testator and the witnesses, respectively, whose names are signed to the foregoing instnunent, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his Last Will and Testament and that he signed willingly (or willingly directed another to sign for him), and that he executed it as his free will and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator signed the will as witnesses and that to the best of their knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence, HiJ~J-r:L~ Testator ~;&oI~{L ~dt' Wit s ~P- J: ;?J(~ ess Subscribed, sworn to and aeknowlec!ged before me by the testator, and subscribed and sworn to before me by both witnesses, this / () W day of () E..-zA /!> {j'{l,.. , 1996. a~ Notary Public NOTARIAL SEAL ALBERT R, SMITH, NOlary Public Camp Hill, Cumberland County My Commission Expires Man:h 6,1999 Page 5 .........1 I \ 'I VERIFICATION I verify that the statements made in the foregoing Petition I I are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C,S. 5 4904, relating to unsworn falsification to authorities. DATED: f~ /~ .2000 al~~J1f~"/,J'1/ William Kutchm n j \ CERTIFICATE OF SERVICE f I certify that on the a~;r~ay of q~L~ 2000, I served a true and correct copy of the within Petition , " I \ II for Approval of Settlement upon counsel for Defendant in this matter by depositing same in the United States mail, first class, postage prepaid, addressed as follows: C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street P,O, Box 999 Harrisburg, PA 17108 , Thomas Brenner, Esquire 320E Market Street Harrisburg, PA 17101 James G, Nealon, Esquire 301 Market Street Harrisburg, PA 17101 , ,I j Michael A, Boomsma, Esquire Post & Schell, p, C. 237 N. Prince Street Lancaster, PA 17603 SAlOIS, SHUFF & MASLAND ATI'ORNEV'S'AT.I.AW 26 W. lII&h 51'''1 Ca,II.I., P^ ~c~,~ SAIDIS, SHUFF & MASLAND , ';1 GO fd'~ :> i iI,! 1,- 1 ,< .,;: , , '. 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' ,',' \:) l 'I j. i'"\' lJP\i:'C'\'L'\".;',,),~I,.1 j ...1'1',..1/ ",',';.j\:, ; ~ , , ~. 1\1 , \ , SYLVIA KUTCHMAN, individually and WILLIAM KUTCHMAN, as Executor of the ESTATE OF JOSEPH KUTCHMAN, deceased, Plaintiffs :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, : PENNSYLVANIA , /1 " I , v, NO. 98-976 CIVIL TERM MINDY S, STRALEY, CAMP HILL BOROUGH and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, and PENNSYLVANIA PERCS, INC., Defendants JURY TRIAL DEMANDED MOTION FOR RULE ABSOLUTE AND NOW, comes Sylvia Kutchman, individually, and William Kutchman, as Executor of the Estate of Joseph Kutchman, deceased, by and through their attorneys, Saidis, Shuff, Flower & Lindsay, and moves this Court to make the Rule previously issued absolute, and enter an Order permitting settlement and compromise of this action and in support thereof avers as j follows: 1, On July 26, 2000, Plaintiffs filed a Petition for Approval of Settlement and Apportionment of Settlement Funds pursuant to 20 Pa.C.S,A, ~ 3323 and Pa.R.C,P. 2206, 2. On July 31, 2000, the Honorable J. Wesley Oler, Jr, of this Court entered a Rule upon Defendants that they show cause why the petition should not be granted. The Rule was returnable within 15 days of service. 3. The Rule to Show Cause was served on Defendants via certified mail. True and correct copies of the signed certified mail cards are attached hereto as Exhibit "A". 4, Defendants, Camp Hill Borough, Pennsylvania PERCS and the Estate of Joseph Kutchman, wrote letters to Judge Oler advising that they had no objection to Plaintiff's Petition. True and correct copies of the letters from the Defendants are attached hereto and marked collectively as Exhibit "B". 5, More than 15 days have passed since service of the Rule to show Cause and none of the Defendants have objected to Plaintiff's Petition. WHEREFORE, Plaintiffs respectfully request that this Court make the rule absolute and enter the Order attached hereto approving settlement and the apportionment of settlement funds. Respectfully submitted, LINDSAY Date')" -~ Y -6:-:> ~ exhibit A . _' _"I'" _ __ , ~~-. - .' _.~ ! i ! ff ~ I j 8 J i- ' ~ .!i ~ DOt sj I H ~ ~ ,,~ th!~~ () j ~i H ~ " N d ~ g, ~ ~ f i} ! i c ~ i1il!ilcl!i!; ~,~ i ~ . ~ '~'~ ~ S ;k ~ ~ - J p '" dl O'! ~ ~~ i iiili " .. DO ,...; .; ~ ~~; <:"....:....:L- i J j! ~ ~ ~ as s 1= P ! 11 ~ 2~ ~:l )~ ,~ ! J ii ~ -l- ,. T"\ j ~ ~ ~~ ~.~~.J Hi 11 F r!:5-:l 'a~ j l~ .9 l'" ~.>2 ':...~. 1 ~~ (1 ~~~ ~ It ~ ~ ..Ui j ~~ j ~ ~ 2 ffi:i ~ ~,;H<i ~ -- ~'j\ ~ ffibiUnH ~~' ~ en... . .. ~ J ~ -\- -,....., . j ~ 1i =~ 0 ~ ~:ii ~~~ ~j8 ~ "~! 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" :ll .~ - III 1i .2 '" 0 " '0 ~ ~ :g .g -0 ~ ~ 3! 00 '80'IU.S ldl""olj ,wnloll dur.n '0' no~ ~Ulu.l. ~ ~ 'i '; ~ g u _ u ...g 0 0 \ ~ '!l ~ ." ~ !:ij ..~ ~ 0 >- 'S";' u" ~u ;;'~ -" ':ltJ.. ~ - __ C141 >0:" >,,- ~B g -:a a )( -- " ..; c-J .,. '" '" 1il ~ ;;; u " o 'b :!! .. !l , - ~ o '" '" ,j!! _:5 ~ .~ ~' ~';J' ,"'1 ~.~ ~ " ~:!! -a., lia .; ;,1; ~ a 'ijj u w a: c: ~ ::I Qj c: ,Y 1ii w E o o ~ Q \ ~ .i.! ;' 1 .-\ ......\ Exhibit B POST & SCHELL, P.C. ATTORNEYS AT LAW RECEIVED AUG 1 7 2000 1857 WILL'AM PI!:NN WAY P,O, BOX 10248 LANCASTI!:R, PA 17S05'0248 17111 20 '.."5:32 F...C~Iol"'Il..!.: (7171 201.1000 lHt Br:.RK~H'Rr:.. sum: 209 90 I WA,HINaTOH smttT RtAOINO. Pot. I ~eo3 leIOI37!H~Z!UI ""')(1 Ie I 01 379.2Z83 AOAM9 pt,.A.ct . sum: .3 70 I WHrn: HORst ROAD VOORHtts,H~ 08043 CBeel1527<09oo r.u:ll!leC51 ~!U~7."'4151 I ~4B ,. ctOAR CRtST BOUL.tVARO sum: .300 ...LLt~.P'" 18103 lelOI A33.0103 'AX: lelOI 433.,3Q12 240 ORAHOVItW ,.vENUE CAMP HIL.L. PA I 70 I I 17171731.1070 'AX: 17171 731" 085 I eoo JOHN ,., KtNNtO'f' Bl.VD. PHIIJ.OtLPH1.... PA 10103'7480 12151587.1000 ,....x: 121,t S87.1444 \ I , , I , MICHUI.. A.. BOOMSMA (717) .301.4421 ...oo.......lQlpa.fSC....u..ca.. August 15, 2000 Hon. J. Wesley OIer, Jr, Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Kutehman v, Strailey, et al Cumberland County, Civil Action No. 98-976 Dear Judge Oler: I have been retained to represent Pennsylvania Peres regarding the above-referenced matter. Recently, on July 31, 2000 you issued a Rule to Show Cause why Plaintiffs' Petition for Approval of Settlement of the Decedent's Estate in this matter should not be granted, On behalf of Pennsylvania Peres, this is to advise I do not oppose the relief requested in Plaintiffs' Petition and accordingly, will not be responding to the Rule, Respectfully submitted, Michael A. Boomsma MAB/sm Enclosure ee: Joseph L. Hitchings, Esquire Thomas E, Brenner, Esquire James G, Nealon, lU, Esquire Daniel R. Goodemote, Esquire Kent price, Esquire RECEIVED AUG 1 0 2DDtJ THOMAS, THOMAS & HAFER. LLP ATIORNEYS AT LAW JOSEPH p, HAFER lAMES K, THOMAS. " ROBERTSON B, TAYLOR JEFFREY B RETIIG PETER J, CURRY R. BURKE McLEMORE. JR. EDWARD H. JORDAN. JR. e, KENT PRICE RANDALL G, GALE DAVID L, SCHWALM PETER J, SPEAKER DOUGLAS D. MARCELLO PAUL J, DELLASEGA OF COUNSEL lAMES K, THOMAS 1717) 237,7100 FA,~ (717) 237,7105 WRITER'S DIRECT DIAL NUMOER (717) 255-7632 CKP@tthlaw,com August 9, 2000 ROBERT A, TAYLOR SARAH W. AROSELt EUGENE N, M,HUGH STEPHEN E, GEDULDIG KAREN S, COATES GARY T, LATHROP TODD B, NARVOL JAMES I, 0000,0 KEVIN C, M,NAMARA BROOKS R, FOLAND JOHN FLDUNLAeKER lOHN 101, POPILOCK MICHELE J, THORP G, CHRISTOPHER PARRISH DRUMMOND B, TAYLOR , " .. 'f 30~ NORTfI FRONT STREET SIXTH FLOOR P,O, BOX 999 HARRISBURG, PA 17108 The Honorable J, Wesley Oler Jr. Judge's Chambers Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 , RE: Sylvia Kutchman, et al. v, Mindy S. Straley, et al. No, 98-976, Civil Dear Judge Oler: I represent Camp Hill Borough in the above matter. \ , I On July 31, 2000 you issued a Rule to Show Cause why Plaintiffs' Petition for Approval of Settlement of the decedent's estate in the above matter should not be granted. On behalf of Camp Hill Borough, I do not oppose the relief requested in the aforesaid Petition and do not intend to respond to the Rule. ! Sincerely yours, f , THO~,r\ A7S ~ T ,H lOMAS & HAFER, LLP C-~1 ~ C. Kent Price CKP/ves:103788.1 cc: Joseph L. Hitchings, Esquire Thomas E. Brenner, Esquire James G, Nealon, Esquire Daniel R. Goodemote, Esquire Michael A. Boomsma, Esquire . LEHIGH VALLEY OFFICE: 12 E, MARKET STREET. p,o, oo.~ II n. OETHLEHEM, PA 18016 (610) 868,167~ FAX (610) 868,1702 . ," " c:- I [.: .,' '(; J ._~ , " , I c: i1~ ,,~ . , '._a (...., ~ '.J ! ,.! ~=; !'}I.'O t .\.~ '~;.1 Ll... r:) ."..::; 00,) ,,) U