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HomeMy WebLinkAbout98-02551 l Mr, Wiener Indiealed (hat hocausl' 01' his client' .I advunced age, 11\\ would only consider an allCi'nativc dispute resolution pl'OgrUI11 if it would he hlnding, He proposed hlnding arhitration, 4, Mr, Harll'.1I' indicaled that he would have to ehel,k wilh his supervisor since his company did nOlnorlllally look favorahly upon hinding arhitration, 5, In late Novemher or early Decemher of 1997, MI'. Harber telephoned Mr, Wiener and advi,\ed him that he had authority to enter inlo hinding arhitmlion, Mr. Wiener lwcepted the oller and the parties agreed to suhmit the dispute tll hinding arhitration, (\, Mr, Wiener confirmed the agreement hy letter dated December 4, 1997, to Defendants' uttorney, Peter Speaker, Esquire, This !cller was copied to Mr, Harher, 7, In March of I 99!!, Mr. HlII'her's supervisor advised MI'. Wiener that the compuny had no intention of suhmitting the matter to hinding arhitration, !!, The Court specifically finds as a I:let that an agreemenlto arbitrate was entered into hetween MI'. Harber and Mr, Wiener. However, no agreement existed as to the type of arhitl'lltion, i,e" statutory, contl'llctual, ete.. 2 In the ahel'l1ative, I'laintlff:1 assert that Mulual Benefit Insul'ance Compuny falls whhlnlhe meuning of "purty" to huve the uuthority 10 ugree to suhmit the dispule to arhitruljon, The Stundurd Pennsylvania I'ractkl\ 2d * 14:2 del1nes "party" to hc a person who comnwnccs a matter, or IIglllnst whom relicI' is sought In II 1II1Itter. A pcrson includes a corpOJ'alion, partncrship, husine.ls trust, Ihundalion, and an associalion, as well as a natural pcrson, Thus, parties to a civilacttonare thosc persons, including individuals and legally rccognizcd entities, lhal ai'll directly Interested in the subject mlltter of the proceedings, IInd this includes 1111 persons who arc directly interested in some pllrt ofthe proclledlngs, lIml who have II right to make a defense, control the proceedings, examine and cross-cxaminc witncsses, and appeal I'l'Om Ihe judgment rcndered, Thc Slandard Pennsylvania Practice * 103: 13 sets out thc persons who may suhmit disputcs to urhitration: ''The legalllbility 01' the power to makc an agreement to suhmitll dispute to lIrbitration generally depends upon the capacity of lhe parties to enter into othl\!" legalagreemenls and to sue and be sued. Each party must have general legal capacity to contract with respect to the subject matter in dispute, either in his own right or in a representative capacity," * 103: 13; 5 Am Jur 2!J.. Ar!Jjtration and AWlll'l1 *61. In the absence of any statutory restriction or restrictions in the instrument OJ' appointment pursuant to which they act, persons acling in a representaliw OJ' fiduciary capacity, including executol's or admlnislratOJ's, may suhmit 10 arbitration any dispute they have the powllr to settle, Christy v, Christv, 176 I'a 421. 35 A 245, (IR96). 5 Pcnnsylvanla Arbitl'lltlon Act to apply and thcrc is no suhscqucnt cxprcss or impllcd a!lrc(~l11cnt to use thc Act, our cOll\monlaw controls. Brcnnall v, (lcncral Acc, Fire and Llfc. 574 A,2d SKO, 5K3 (PII,199()), In a casc rcmarkably similar to the casc at hand, thc courl chosc to apply coml11on law arbitration, In Saxton v. Ccdar Hill Mcmorial Park lnc" 19 D,&C, 4'h 532, both counscladdrcsscd thc issuc of whcthcr coml11on law or statutory arbitmtion was contcmplated by an agrccmcnt. Thc CO~lrt hcld that bccausc thc agrccmcnt providcd for arbitration without specifying common law or statutory arbitration, it is common law arbitration rules which apply, 42 Pa,C.S, n302 (a); aallc~hcr v, Educator and ExcculiYUnslll'crs. Inc" 3HI A,2d 9K6 (Pa, 1977), According to Standard Pennsylvania Practice, "The courts mgard the statut(~s providing till' arhitration as being in del'Ogationof the common law and strictly construe thcm against agrecl11cnts of submission. 01' apply them quite strictly. I W Ihere an agrcemcnt mcrely providcs for arbltl'tltion and docs not specify common-law or statutory arbitration, common-I<>.w arbitration rules apply," Standard Pennsylvania Practice * 103: 17() This court has alrcady found that anagrcemcnt to binding llI'hitration existed hetwccn Mutual Bcncl1tlnsul'tlnce Company amlthc Plaintiffs, Thc agrccmcnt is silent on whaltypc of arbitration is applicablc, Plainl iffs asscrtthat based upon thc aforcm(~ntioned casc law and statutcs, common law arbitration should apply sincc thcrc was only a gcn(~1'tI1 agrccmentto binding arbitration, 7 It CII .~ '8>'" .'~ L1 .1' ,',:, " .,. ,," . :'.'-;j Q . '. r" , ,"i ',I , ~;,- ; J, ~;, '{,. I-r '-~':yr l' -;!,. ,,;, --;-j::, -'--;'--' j'r- if SEP 1 6 199~ .' , "8, The Courl specificully finds us 1I lilcllhnl un ngrccll1cnl 10 urhilrnlc WIIS cntcred inlo hctween Mr, IIUI'her nnd Mr, Wicncr, Ilowcvcr, no ngrecll1ent. existcd liS 10 the typc ol'lIrhitl'lllion, i.e" stututory, conlrllotunl, olc," 1'0 create an onfo~ceabh, contt'ilct, tho partIes must [wI: out the terms of t.he "CJHeement wIt.h sLlU.ic.lllnt spocif.ic.i.ty, An agreement .is suff.icIent.ly specIfic whe~e the parties intended to make the contract. and the t.e~ms prov.ide a nJasonably certain bas.is for the Court to gIve an approprIate remedy, Dahar v, Grzandziel, HO Pa, Super, 85, 599 A,2d 217 (1991), Asa prerequIsIte to any enforceability of sLlch an agreement, the terms of the bargaIn must be set forth with sufficient clarIty. ?efl, BIddle v. ,Johnsonbauqh, 444 Pa, Super, 450, 664 A.2d 159 (1995) . Here, while the Court noted there was an agreement to arbitrate, the Court alao found the agreement dId not contaIn provIsions regardIng the type of arbItration other or fundamental information whIch Is a prerequisite to its enforcement. Under Pennsylvania's Uniform ArbItration Act, 42 Pa. C,S,A. s; 7303 (Purdon's, 1982) , the validi ty of an agreement to r I arbitrate rests on same being a written agreement to subject the existing controversy t.o arbitration,l Here, there is no written In particular, 42 I'a, C,S,A. ~ 730.1 statcs as tallows: "~7.10.1, Validity or "n Agrccmcntto Arhltrate, A written agrecment to sU~j"ctllIlY cxistlng controversy 10 arbltl'llllon or a provision In a wl'lllcnagl'eemenl to submit to arbitration any controvcl'sy thereafter arlslag belweenthe parties Is valid, cntol'ecablc, and Irrevocahle, savc upon such grounds as exislat law 01' In eqully I'olatlng to he validity, cntol'ceabillty 01' I'evocntion orany contl'llct," . ,. /\ ,/ I 2 i' t: As tho Court not.Eld .i.n .i.tEJ f.i.nd.i.nqs of fact, no aqrO<;1nmnt exist.ed a:'l t.o the type of arb.i.t.rat..i.on to be undert.aken. That. .i.s, there was no aqreement as to whether same would be fitatutory, contractual or common .i.aw. Moreover, t.here was no agreement: as to. tho numbEir of arb.i. trat.ors, nor was t.hete 'any agreement. as to t.he max.i.mum dollar amount that could be awarded (should the arb.i.trators decide t.o a./ard anythinq), nor was there any agreement as to the "bindinq" nature of same. The . Pennsy.i.vania Supreme Cou.rt. has stated that an agreement which reduces legal r.i.qhts which would otherw.i.se ex.i.st must be strictly construed aqainst the party assertinq .i.t and must spell out wHh the utmost. part.icularity the .i.ntention of the parties, GalUq~n v. Arovitch, 421 Pa, 301 (1966); Morton v. Ambridge .Borough, 375 Pa. 630 (1954), cited in Inde...e.:--.!2...eveI. v. Amer, Arbit. Assn., 59 D. & C.2d 416 (1972). In the instant matter, the terms are so general that it is impossible for the Court to reasonably fashion a proper structure to be followed by any arbitrator(s) on rules of evidence, submission of document.s, and applicabilit.y of st.at.utory or common law procedure. In light of this, the enforceabil.ity of any aqreement; , in t.his case should be precluded. 4 LEWIS R. CRULL and MARGUFRITE CRULL, his wife, Plaint.iffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT'l, PENNS'{LVANIA V. GLORIA MARIE KIN8ACK and CALLEN KINBACK, INC., Defendants CIVIL ACTION - LAW NO. 98-2551 CIVIL TERM QBQJj;R OF COURT AND NOW, this 3rd day of September, 1998, after hearing, the Court makes the following findings of fact: 1. In November of 1997 David Harber of Mutual Benefit Insurance company [the insurer for the Defendants] entered into settlement negotiations with Plaintiffs' counsel, Eric Wiener, Esquire. 2. When it became apparent that the case was not going to be settled, Mr. lIarber proposed that the matter be submitted to an alternative dispute resolutIon program such as mediation or arbitration. 3. Mr. Wiener indicated that because of his client's age, he would only consider an alternative dispute resolution if it. would be binding. He proposed binding arbitration. 4. Mr. Harber indicated that he would have to check with his supervisor since his company did not normally look favorably upon binding arbitration. 5. In late November or early December of 1997, Mr. Harber telephoned Mr. Wiener and advised him that he had authority to enter into binding arbitration. Mr. Wiener " ,. . I L.. . - :r; . - . : - 1 =: . - ~ . - ,. - ,. I ! . . ,. . ..... ,. - !i ~ . - 0 " . ~ J::: a: - ,. ::) . ~ ,. m - S 0 0 m a: z 0 ~ c( :c Q. I j , , I ,; ? "') \.q .. z I '.1' " ~i\;t~\ t~ ''', , ~', 1, ", ')' , 4: ~ j i~ i;~:' " .;t' " 'l~::_\,\,_, . ~ fl} " , -,# p ~, ., ~j. ., " ''', ('~'~1i_I'fI'lt.,~__!f>, _ r~ - -c. -. "Vi-",,,.~,_,,;j , . .1er " ,~ , -, J'~ . ~.ili.. "", , "i~ liJ ';111, , \' ~ ' .. . -4<tt 'y .. . '" .~~,. i;'\ .~ l,tl'i.. J '. ''''~, ),\ .I,i\, "f i/~ - ~l, . 1 .,', J " 'fij h. ",', . '..' -. .\~- -.," " f1 '.' . (.. ':'. ..Tlf ,~ ,- \ - ~.. of', '., \~~'l-.. 'J- , " I .. " ~J 1,/ }l ~-~ ... '" .\-; , \ r 1 I ~. . r. ., ,- I f! i .rJ --j!,,- ,,,. , l' / ~ ~ ~. (' i . \ SHERIFF'S RETURN" REGULAR CASE NOI 1998--02551 P COMMONWEALTH OF PENNSYLYANIAI COUNTY OF CUMBERLAND Cl~Uk,l~~&.I!..I s ..Ji....J~Lb.l~--~----- YC' J. KIN (J A c: ILQl",klli..I,L]ArUt. ELM, "KATJ-..LY....gJ,....t\Jil\E ..________~____~, Sh8rLff or' Deputy Sh8riff of ClIMBERLAN[' County, Pennsylvania, who being duly sworn ac.col"ding to law, s"ys, till3' wIthin !IRIT_.QF up (I n ,_K..I N EJ A..GL G t,Q!i.Lt-__...tJAli I!:: __.. defendant.., at _____~4_L3~~. !IClUR~;, un ,';UI'IMON~; .---- was P.1E'I"v12?d --.-- thE' the ...QM day of l'liU'-- , ..,- ,,' 19:IEI at Gl11li WE,.:TCiYl~R .[!R"l YL___________ ~Ec:!.!ANlc:";l:lUIiQ,_ PA 1 '70~~;'L__.........__._ ___, CUMBERLAND County, Pennsyl.vania, by hanrl:ing t.o Qii.!:!1J;;..LLE .I<INBACK (DAUGHT.EH) a t.ruE' and aUl'8tc,d copy elf t.ill' WRIT OF SUMMOW; ,_________ and at t.hE' samE' t.im,? dirE'cting Hl?r at.tE'f,t.ion t.o thE' cont.ent.s t.hE'reof. Sh"riff's Costsl DocketIng ServicE' Affidavit SurchargE' 18.00 5.82 ,00 G,00 f;o ans?~~~ rr.-'""'I'1'I6 10 a'iT"rn 1 n E' ,:-----sTi"ic;;-Trr lIandler & Wiener 05/0'7/~:9~____~1/", t.ia:"~"f .. ~€:-r-l $3Ql,'82 S~orn and subscribed to this _.1f..Y __ day of tJ..L~ (,r; 19__...1-1...... A. tJ, b,'1on, me! _ r\ "J,.k ~ ~"'-~:;J,-,<,,-'!..~-,---- ~ ro ,10nOl.ary' , ~ co , ~ i:~ C;', ~ - t-..: Ul~" .. ("J (:I " \. R~ ~, T'" ~ (\.: j; , C'JI, (~\ \ r' :,J C'\( ". '{) ~J"l ."J " \i' [l:l' ;'!>-. ~ r' m:.l 'H\}~ ~! ~ ~ tC ~ en "- ~ ()'I ,.' .~ \) u I' '~ ~ ~ .' J 0 m 0 0 'D . . CO N . .51 b' 0 I ~ ~ . ~j :J ~m ~~ ~ 3, rlNCI I ~~ I I .. H 'M tJ .. o ~ . ~~ I~ ~ ........"'..... c: ~"'Ul..........~ 'ri o ~ . ~...... . '0( rl ,~~ 'riOriO... ~-8 I I/') ... 4...J I s: co Q) , I/') ~'~~ rll ~I~';~~~~~I , N I 0 co '" jj~ ~ 'd U :;:j u ~ . . 0 ,~I ;~C1~q~~ , , G~~ , U HMP" f-lUl I ll! I I , (: o 36. DEN lEI), This paragraph oftlw Defendants' Nell' Malter is a conclusion to Inw to which no response is required; however, ifit is judicially determined thnlal'lisponse is required, it is strictly denied nnd strkt proof thereof is demanded at trial, 37, HENIED, This paragraph of the Defendants' New Matter is a conclusion to law to which no response is required; however, ifit is judicially determined that a response is required, it is strictly denied and strict proofthereof is demanded at trial, 38, DENIED, This paragraph of the Defendants' New Matter is a conclusion to law to which 110 response is required; however, if it is judicially determined that a respollse is required, it is strictly denied and strict proof thereof is demanded at trial. 39, DENIED, This paragraph ofthe Defendants' New Matter is a conclusion to law to which no response is required; however, if it is judicially detennined that a response is required, it is strictly denied and strict proof thereofis demanded at trial. 40, DENrED, This paragraph of the Defendants' New Matter is a cOlldusion to law to which no response is required; however, if it is judicially determined that a response is required, it is strictly denied and strict proof thereof is demanded at trial. 41. DENIED. This paragraph of the Defendants' New Matter is a conclusion to law to which no response is required; however, ifil is judicially determined that a response is required, it is strictly denied and strict proof thereof is demanded at lrial. 42, DENH:n, This paragraph of the Defendants' New Maller is a conclusion to law to which no response is requir(,d; however, if it is judicially determined that a response is required, it is strictly denied and strict proof thereof is demanded at trial. c . 43(8), IH;Nllm. It is strictly donied Ihut Plllintifrwlls illllny way clIlISlIlly negligent Ihr the h1Jurlcs Pllllntin' hils sullcrcd by fililing to keep II cllretllland diligent wutch on Ihe I'OlId und strkt Pl'Ooflhcreofls demllnded lit trial; 43(b), f)J~NmD. It is strictly denhJd tbat PlaintifTwlls in uny way causally negligent for the : \ i .1 injuries Pluintifr hlls sufl'cred by fililing to check before attempting to cross the road lInd strict proof themofis demllnded at trilll; 43(c), DENIED. It is strictly denied that Plaintiff was in IIny way causally negligent fur the injuries Plaintiff has suffered by inllttentively stepping onto the lOad and strict proof thereof is demanded at trial; 43(d), DENIED. This subparagrllph of the Defendants' New Matter is a conclusion to law , , , ;: 'j , to which no response is required; however, if it is judicially determined that a response is required, !~, it is strictly denied and strict proof thereof is demanded at trial; 43(e), DENIED. This subparngrllph oftha Defendants' New Matter is a conclusion to law , , , \ I to which no response is required; however, if it is judicially determined that a response is required, it ,is strictly denied and strict proof thereof is demanded at trial; 43(1), DENIED. It is strictly denied that Plainlill'wlls in any way causally negligent for the injuries Plaintiff has suffered by failing to be reasonably vigilant 10 observe the Defendant and strict proof Ihereof is demanded al trial; and 43(g), AJ>MITTED IN PAin AND DENllm IN I'ART, It is admitted that Plaintiff I;'~" \::"1 ... II: 1&1 Z 1&1' 8 " ,j 'I ~'E'r" I (.1 : i ill', '~':'I'~'I ~,) .' , w :! ~ ~ ' ..l' '" Q , Z -C' 1: ,'c L~ "i'e', ~,~ ,'Ie, '"',"" ,.,' :,}}\ -'~.'" ''I' :. ,"" ..~ ~' :~l t~'i- ' ') [5 r;;~ I '" :!ir,~,:' >~' :'1:1 M :~' , IJ ',~ ./0\ ,," .-j' ":_'!'-' -," i. i-',' ", ';}'(-(;',: ,T '" ~l,!,' :",,! r-o '\i," [':", r "~ -i~ ' : ;1 i~'; ':';';1 , '~I;_;:I)iJL' " '.C" ;~c ;.rf,f,~;:,:--~ :{,:,inl,_:: ',;, ,:,',',';),,' \'j ;~lf-'LHi " '_'L' ;;,;]1 ~;,n:'I' f'-'~ .;', , , ; c'i{ ',n ':j'" '!,'l .--.-(q~ " ',~ 'J':, ;"__'(' ._, of, -..' '~ " ',iff _:~ ,;X ~~ If;'!.: h" '.I' "'.,!,~'''.,;:_', - .:. )1'1/",., ''1- . ',,: " i:i':!~\~' ",:", ~ .. ,.~, j.j',...--, ,i,'. ;,,', .~\ ~ . -....' ,- ....;..,':- . _ _ . _~ .C." . ~~:. ''^,'\"n--', ""~ -,-".--, -j{ ~ " H- , ~ ~:) ,:il?:'- '.J "g I', l'i' ,.y ~~:L ti T .4 ~; !~-;~:h!, ';c -, ~ -,--j:'-,- _'[C''- I'" It ~ , Id ' .. eUtS .' a "~'I-'t8 , ' I , !1l':",:I"i: ..,..Ii, ,+< 'fIIJ,...-i:. 'toil ;J II ,- 0" . z -C" :Cod " ,".", , " " .~ " --,!"i if (,'n , " ,I.~ .' \i -'t,' ~_ ,. III THOMAS, THOMAS & HAFER, LLP By: Jam.. J. Dodd.o, alqulre Attorney Identllloatlon No, 44878 308 North FrClnt Street P.O. BOll 999 Harrlaburg, PA 17108 (717)237-7100 Attorneya for Defendantl: Gloria Marie Klnbaok and CaUen ' Klnblok, Ino. - IN THE COURT or' COMMoN PL.lO:AS 01" CUMBE:RI,AND COUNTY, PI':NNSYLVANIA C:IVn DIVISION J.AW - = LEWIS R CRULL and MARGUERITE: CRULL, NO. 98-2551 Civil 1'eml Plaintiffs, IN CIVIL ACTION v, GLORIA MARIE KINBACK and CALLEN KINBACK, INC., JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS Defendants. ANSWER AND NEW MATTER OF DEFENDANTS TO PLAINTIFFS' COMPLAINT - COME NOW the Defendants, Gloria Marie Kinback and Callen Kinback, Inc., by and through their counsel, James J. Dodd-o, Esquire, of Thomas, Thomas & Hafer, LLP, and for their Answer and New Matter to Plaintiffs' Complaint, set forth as follows: 1. Admitted upon information and belief. 2 . Admit ted upon information and belief. 3. Admit ted upon information and belief. 4 . Admi tted. 5. Admitted. 6. Admitted. 7. Denied. After reasonable investigation the An,qwer.i.ng ,Defendant is without such knowledge or information because the means of proof are withln the exclusIve control of an adverse party or hostile person. Stdct proof thereof is demanded at the time of tdal. 8. Denied. After reasonable investigation the Answering Defendant is without such knowledge 01' information because tho means of proof are within the exclusIve control of an adverse party 01' hostile person. the time of trial. Std,ct proof thereof is demanded at 9. Dellied ass ta ted . I t is denied that Defendant Gloria Marie Kinback was operating her vehicle westbound on Erb's Bridge Road "at the same time" as Plaintiff was moving from the south side of the road to the north side of the road. By way of further response, the facts of record and evidence do not support this averment. 10. Denied. AnswerIng Defendant denies the inferences set forth in Paragraph 10 of characterizations and Plaintiffs' Complaint. It is denied that Lewis Crull was struck when he had crossed the eastbound lane and three-quarters of the westbound lane as alleged. By way of further r8sponse, it is denied that Piaintiff Lewis Crull rolled up the front of the vehicle to strike the windshield as alleged. 2 COUNT I Lewis Crull v. Gloria M. Kinbaok 13. Defendants incorpora te herein by reference their answers to Paragraphs 1 through 12/ above, as if fully set forth herein at length. 14. Denied. It is specifically denied that Answering Defendant was negligent in any manner wi th respect ,to Plaintiff's cause of action. By way of further answer, it is specifically denied that the Answering Defendant was negligent as in the following respects: (A) Denied. To the contrary, Gloria Kinback kept CI proper lookout. It is denied Plaintiff was lawfully crossing Erb's Bridge Road as alleged; (B) Denied. To the contrary, Defendant was operating her vehicle in a proper and appropriate manner and within the parClmeters of 75 Pol. C.S.A, 5 3361; 3 (C) Denied, It ia denied there was a duty to yield the right of way as alleged, and it is further denied that PlaintHf was lawfully crossing Grb's Br.i.dge Road; (0) Denied, '['0 the contrary, D~,fendan t opera ted her vehicle in a proper and appropriate manner; (E:) Denied. rro the contrary, Defendant was reasonably vigilant; (F) Denied, '1'0 the contrary, Defendant was operating her vehicle under the posted maximum speed limit; and (G) Denied. To the con~rary, Defendant did have her vehicle under reasonable care and did not violate 75 Pa. C.S.A. ~ 3714. 15. Denied. It is specifically denied that the Answering Defendant was negligent in any manner with respect to Plaintiffs' alleged cause of action. As to the claimed injuries, after reasonable investigation the Answering Defendant is without such knowledge or ,information because the means of proof are within the exclusive control of an adverse party or hostile person. Strict proof thereof is demanded at the time of trial. 16. Den.ied. It is specif.ically denied 'that the Answering Defendant WilS negligent .in any manner with respect to Plaint.iffs' alleged cause of act.ion, As to the claim of inability to perform da.ily duties' and chores, after reasonable 4 invest.igation the Answering Defendant is wJ.thoLlt sLlch knowledge or information because the means of proof are within the exclusive control of an adverse party or hostile person. Strict proof thereof is demanded at the timo of trial. 17. Denied. It is specifically denied that the Answering Defendant was neql.igent in any manner wi th respect to PlairltJ.ffs' alleqed cause of action, As to the claim of pain, discomfort, and anguish, after reasonable investigation the Answering Defendant is without such knowledge or information because the means of proof are within t.he exclusive control of an adverse party or host.ile person. demanded at the time of t.rial. 18. Denied. It is specif.i.cally denied that. the Answering Defendant was negligent In any manner wi th respect to Plaintiffs' alleged cause of action. As to the claimed Strict proof thereof is expenditure for medicine and medical attention, after reasonable investiqation the Answering Defendant is w.i.t.hout such knowledge or informat.i.on because the means of proof are within the exclus.i.ve control of an adverse party or hostile person, proof thereof is demanded at the time of trial, 19. Denied. It.i.s sped fically denIed tha t the Answer.i.ng Defendant was negligent in any manner with ,respect to Str.i.ct Plaintiffs' alleqed caLise of action. As to the cla.i.m of loss of life's pleasures, after reasonable investigation the Answering 5 Defendant is without such knowledge or Information because the means of proof are within the exclusive control of an adverse party or hostile person. Strict proof thereof is demanded at the time of trial. WHEREFORE, the Answering Defendants demand jUdgment in their favor, COUNT I I LeiW8 Crull v. Callen Kinbaok, Ino. 20, Defendants incorpora te herein by reference their ,lnswers to Paragraphs 1 t.hrough 19, above, as if fully set. forth herein at. length. 21. Denied, It is specifically denied that the Answering Defendant was n",n.li,gen t in any manner wi th respect to Plaintiffs' alleged cause of action. As t.o t.he claims set forth in (A) through (G), Answering Defendants incorporat.e herein by reference its responses set fort.h in 14 (A) t.hrough 14 (G), above. 22. Denied. It is specifically denied that. the Answering Defendant was negligent in any manner with respect to Plaintiffs' alleged cause of action, As to the claimed injuries, after reasonable investigation the Answering Defendant is without such knowledge or information because the means of proof are within the exclusive control of an adverse party or hostile person. Strict. proof thereof is demanded at the time of trial. 6 23. DenIed. It is specifically denied that the Answering Defendant was negligent in any manner with respect to Plaint i ffs' <llleged cause of action. As t.o the claim of inability to perform da:lly duties and chores, after reasonable investigation the Answering Defendant .Ls without such knowledge or information because t.he means of proof are within the exclusive control of an adverse party or hostile person. proof thereof is demanded at the t.Lme of trial, 24. Denied, It is specifically denied that the Answering Defendant was negl.lgent in any manner with rBspect to Strict Plaintiffs' alleged cause of action, As to the claim of pain, discomfort, and anguish, after reasonable investig<ltion the Answering Defendant is without such knowledge or information because the means of proof <lre within the exclusive control of an adverse party or hostile person, Strict proof thereof is demanded at the time of trial. 25. Denied. It J.s specifically denied that the Answering Defendant was negligent in any manner with respect to Plaintiffs' alleged cause of acUon. As to the claimed expendIture for medicine and medical attention, after reasonable investIgation the Answering Defendant is without such knowledge or information because the means of proof are within the exclusive control of an adverse party or hostile person. proof thereof is demanded at the time of trial. Strict 7 29. DenIed. It: Is spec.lfically den.led that t.he Answering Defendant was neg.l.lqent .In any manner \dth respect to Plaintiffs' alleged cause of aet.lon. As to the claim of expenditure of money for medicine and mediCql attentIon, after rOqsonable investigqtion the Answering DefendC1nt .ls without such knowledge or information becC1use the meC1ns of proof are within the exclusive control of an adverse party or hostile person. Strict proof thereof is demanded at the time of trial. WHEREFORE, the Answering Defendants demand jUdgment In their favor, COUNT III ~arguerite Crull v. Callen Kinbaok, Ino. 30. Defendants incorporate herein by reference theIr anSWers to Paragraphs 1 through 29, above, as if fully set forth herein at length. 31. Denied. It is specifically denied that the Answering Defendant was negligent in any manner with respect to Plaintiffs' alleged cause of action. As to the claim of loss of consortIum, society, and comfort of her husband, after reasonable investigation the Answering Defendant is without such knoNledge or informatJ.on because the means of proof are within the exclusive control of an adverse party or hostile person. Strict proof thereof is demanded at the time of trial. 9 32. Denied. It is specifically denied thelt the Answering Defendilnt WilS negligent in ilny milnnEJr with respect to Plilintiffs' alleged Ciluse of action, As to the claim of expenditure of money for medl,cine ilnd medicill ilttention, after reilsonable investigation the Answering Defendant is without such knowledge or info.rrnat.ion beCiluse the meilns of proof ilre within the exclus.ive control of iln adverse pilrt.y or hostile person, St.rict. proof t.hereof is demanded at l:he time of trial. WHEREFOR!!:, their filvor. the Answering Defendants demand judgment in NEW MATTER 33. This action may be barred by the ilpplicilble St.iltute of limitations, which is assert.ed herein. 34. Defendant. ilsserts thilt. this action may be barred by the doctrines of res judicilta and/or collateral estoppel, which ilre ilsserted herein. 35, Plilintiffs fail to state a claim upon which relief can be granted, 36. If the ilccident oCcurred as condition complained of did injuries complilined of, not cause alleged, then the accident or the the 10 37. 'I'he Answering DE!fenddnt avers thilt .If negliC)ence is found to exist on its part, said negligence was not the proximate cause of Plaintiffs' injuries, 38. If ,the incident occurred as a.l1eged, ,then the condition comp1.ain<'ld of did not create a reasonab1.y foreseeab1.e risk of the accident or the injuries complained of, 39. Plaintiff's knowing and conscious assumption of the risk led to the resulting injuries and is a bar to recovery. 40. The Plaintiff was contributorily negligent and/or fail~d to mitigate the claimed damages, thereby limitedand/br barring any recovery, ~l. The causal negligence of the Plaintiff is greater than any negligence on the part of the Answering Defendant, and Plaintiff's recovery is therefore barred, or, in the alternative, must be diminished in accordance wi th the Pennsylvania Comparative Negligence Act. 42. Plaintiff is barred from recovery by reason of the fact that his conduct was reckless and wanton under the circumstances then and there existing, 43. The causal negligence of the Plaintiff inclUded, without limitation, the following: (a) failing cO keep a careful and diligent watch on the road; II (B) In failing to operate her vehiole at suoh a speed, and under suoh oontrol, as to stop wi thin the assured olear distanoe in violation of Pa. C.S.A. 5 3361; (C) In failing to yield the right of way to pedestrians lawfully orossing Erb's Bridgo Road; (0) In failing to operate her vehiole with suoh oontrol that she oould avoid striking the Plaintiff; (E) In failing to be reasonably vigilant to observe the Plaintiff; (F) In failing to keep the speed of her vehiole under the posted maximum speed limit in violati,on of 75 Pa.C.S.A. 3362; and (0) In failing to exercise reasonable oare in the operation and control of her vehicle, in violation of 75 Pa.C.S.A. S 3714. 15. As a direct and proximate result of the negligenoe of Defendant" Gloria Kinback, Plaintiff, I,ewis Crull sustained serious and permanent personal injuries including, but not limited to a fractured right fibula, including a oomminuted spiral fracture of the right tibia, mUltiple fractures of the right ulna, a dislooation of the ulna/humeral joint, an avulsion fracture of the radial he&d, and serious lacerations of the left hand and right 4 slbow, all of which required emergenoy medical treatment, sUrgery, and ftxtensive physical rehabilitation. 16. As a result of the negligence of the D~fendant, Gloria Marie Kinback, the Plaintiff, Lewis Crull, has been, and will in the future be hindered from attending to his daily duti88 and chores, to his great loss, humiliation, and embarrassment. 17. As a result of the Defendant's neqligence, Plaintiff, Lewis Crull, has suffered qreat physical pain, discomfort and mental anguish, and will continue to endure the same for an indefinite period of time in the future, to his qreat physical, and smotional detriment and loss. 18. As a result of the negliqence of the Defendant, the Plaintiff has been compelled to expend larqe sums of money for medicine and medical attentjofl, in order to effect a cure for his injuries. Plaintiff continues to feel less physioally oapable than before and may, t.here,fore, continue to l.ncur expenses for pain rslief and other IIledical expenses in the future to his great detriment and loss. 19. As a result of the neqUgence of the Defendant, plaintift, Lewis Crull hu suffereel a loss of life's pleasures, and 5 (C) In allowing Gloria Kinback. to fail to yield the right of way to pedestrians lawfully drossing Erb's Bridge Road I (D) In allowing Gloria Kinback to fail to operate her vehicle with such control that she could avoid striking the Plaintiff; (E) In allowing Gloria Kinback to fail to be reasonably vigilant to observe the Plaintiff, (F) In allowing Gloria Kinback to fail to keep the speed of his vehicle under the posted maximum speed limit in violation of 75 Pa.C.S.A, 3362; and (G) In allowing Gloria Kinback to fail to exercise reasonable care in the operation and control of her vehicle, in violation of 75 Pa,C,S,A. ~ 3714, 22. As a direct and proximate result of the negligence of Defendant, Callen Kinback, Inc" Plaintiff, Lewis Crull, sustained serious and permanent personal injuries including, but not: limited to fractured right fibula, including a comminut.ed spiral fracture of the right Ubia, multiple fractures of the right ulna, a dislocation of the ulna/humeral joint, an avulsion fracture of the radial head, and serious lacerations of the left hand and right elbow, all. of which I'equired emergency medical. t.reatment, surgery, and ext.ensive physical. rehabilitation, 7 23. As a result of the negligenoe of th~ Dsfendant, Callen Kinbaok, Ino., the Plaintiff, Lewis Crull, has been and will in the future, be hindered from attendIng to his daily duties and ohores, to his great loss, humiliation, and embarrassment. 24. As a result of the Defendant's negligsnce, Plaintiff, Lewis Crull, has suffered great physioal pain, disoomfort, and .ental anguish, and will continue to endure the same for an indefinite period of time in ths future, to his great physical, and emotional detriment and loss. 25. As a result of the negligence of the Defendant, the Plaintiff has been compelled, in order to effect a cure for aforesaid injuries, to expend large sums of money for medicine and medioal attention. Plaintiff continues to feel less physically capable than before and may, therefore, continue to incur expenses for pain relief and other medical expenses in the future, to his great detriment and loss. 26. As a result of the negligence of the Defendant, Callen Kinback, Inc., Plaintiff, Lewis Crull has suffered a loss of life's pleasures and he will continue to suffer the same in the future, to his great detriment and loss. 8 1fKERI!lJ'ORE, Plaintiff, Marguerite crull, seeks damages from Defendant, Gloria Marie Kinbaok, in an amount in excsss of tWentY-five thousand dollars ($25,000). COUNT IV MARGOER~TB CRO~-XINBACX. INC. 30. Paragraphs 1 through 29 are inoorporated herein as though set out at length. 31. As a result of the negligence of the Defendant, Callen Xinback, Ino., Plaintiff, Marguerite Crull, has suffered a loss of consortium, society and comfort from her husband, Plaintiff, I~wi. Crull. 32. As a result of the negligenoe of the Defendant, Callen Xinbaok, Ino., Plaintiff, Marguerite Crull, has been compelled to expend large sums of money for medicine and medioal attention, in order to effect a cure for the aforesaid injuries to her husband, Lewis Crull, and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. 10 "I~' 1:\flf~:, l~~ ~ '-'c ,I; ;;';0' ",1':, " ~;: , ;"'" ,iI, " t-;',~_ -'1. c,_, ::.i.':,; , ,-, ,~', ,;j, Z l,'J 101"1 ,il';;~l !~'111 J'ffi:.'~';l ,-- ,,-;. >U~-,~;_;-;;_7~_4 i.":.,l c' ,(:-'; 1: , ,'f.' " -.;, d " , 687 A.2d 1167, 1171 (19971; Messa v. Stat,,_Farm Ins. Co., 433 Pa. Super, 594, 597, 641 11.2d 1167, 1168 (1994); PBJ?. Coalt.. Inc. v. Hardhat MIne, Inc., 429 Pa. Super. 372,376-77,632 A,2d 903, 905 (1993). Whether a pa,rty consented to arb.itrate a dIspute in the first instance if! a jurisdictional question that must be decided by a Court. Gas1in, Inc. v. L.G.C. E~ort~ The ques tion of ]nc. , 334 Pa. Super. 132, 482 A.2d J.l17 (19841. whether an agreement to arbitrate exists is one which the Court must ultimatel.y address. Patton v. Hanover Ins. Co" 417 Pa. Super. 351, 612 A,2d 517 (1992). The arbitrabi1ity of the issue is to be determined by the intention of the parties as ascertained in accotdan;:e with the rules governing contracts generally. PBS Coal, Inc. v. Hardhat Mine, Inc., supra. See also, painewebber, Inc. v. Hoffman12, 984 F.2d 1372, 1381 (3d Cir. 1993) (arbitration is a matter of contract, so no party should be forced to arbItrate an issue that it did not agree to submi t to arbi tration) ci ting AT&T Techno~ies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L.Ed.2d 648 (1986); Beck v. Reliance Steel Products Co., 860 F.2d 576 (3d Cir. 198811 ~ Libby Corp. v. Skelly and Loy, Inc., 910 F. Supp. 195 (M.D. Pa. 1995); ~~ Dept" of Public Welfare v. Prudential Property and fas. Ins. Co., 128 Pa. Commw. 610, 564 A.2d 523 (1989). Absent an agreement between the parties to arbitrate their dispute, 2 they Cilnnot bE! comrE!lhJd to arbitrate. Q.~~tlt~~_...~_Q.~<!_~~~_~.9~S:~~ ~~~C>.!:~J:.!l...S' l'I.~lP..!~~1 . , 4 82 A . 2 d a t 112 I , (:..le t il~~ II 0 f~!]}.~ !l..~ Gekoskie, 250 Pa. Super. 49, S3, 378 A.2c1 447, 448 (1997). The above makes clear the uniform posH:lon of' Pennsylvania Courts on this issue. In short, Courts wIll compel arbitration only where there ls a eleGlr and unmistakable ilgreement between the parties to submit a matter to arbitration. Absent an express agreement between the parties to sllbmit their disput.es to arbitration, a Court may not compel same. DiLucente C~__~ ra. Roofin~o., Inc., 440 Pa. Super. 450, 456, 655 A.2d 1035, 1038 (1995), alloc. den., 542 Pa. 647, 666 A"2d 1056 (1995). Indeed, where the agreement to arbitrate is neither clear nor unmistakable, it would be improper to force one party to arbitrate claims. Last, the Western District of Pennsylvania has concluded that when considerlng a MotIon to Compel Arbitratlon whlch is opposed on the ground that no agreement to arbltrate had been made between the rartles, the court should glve t.o the opposing party the benefit of all reasonable doubts and inferences that. may adse on said issue. Century Steel Erectors, Inc. v. Aetna Cas. & Surety Co~, 757 v'. Supp. 659, 661 (W.D. Pa. 1990). Under thls type of analysis, there ls clearly no question that the Matlon to Compel should be denied. In the instant matter, Plaintiffs are asserting there is an implled or constructive contract between the parties based upon 3 alleged telephone conversations Plair/tiffs' counsel on the issue. that this informatlon does not and correspondence It is respectfully submltt:<1d rise to the level of a contractual agreement to arbitrate. As in any contract, an agreement is valid only where the parties have manifested an intent to be bound by the agreement's terms, the terms are SUfficiently definlte, and there was consideration. Johnston the norlst, Inc. v. TEDCO Const. Corp., 441 Pa. Super. 281, 657 A.2d 511 85, 599 (1995). See ~lso, Dahar v. Grzandzie~, 410 Pa. Super. A.2d 217 (1991) (in order to create enforceable contract, partles must set out the terms of agreement with sufficient where the speciflcity; an parties intended agreement is sufficiently specific to ma ke a contract and the terms provide a reasonably certaln basis for the Court to glve an appropria te r'emedy); Blddle v. John sonba '=!.S!.b. , 444 Pa. Super. 450, 664 A.2d 159 (1995) (contracts are enforceable where the parties reach a mutual agreement, exchange consideration, and set forth the terms of the bargain with sufficient clarity). If the basic requirements for a contract are not satlsfied, then the.re is no agreement between the partles. P1ailltlffs claim there was an agreement between the parties evidenced by telephone conferences and the correspondence dated December 4, 1997. Plaintiffs apparently claim the lack of a wrltten response to the December 4, 1997 indicates acceptance of 4 from at no timlJ have I'lalntJl:f:lI anflorted that Mr. and MrEI. Kinback, or any officors or 8n~loY009 of Callen-Klnback, entered Into any agreement wHh PlaJntHfs for iHbltl.'ilt:l.on In t:hls matter. Thus, there is not an agrooment by and botween the partles of a valid contract for alt.ernat.lve cti8putB resolution. Second, even if the Court wero to satisfy ltself of an agreement with a party represontative on behalf of Defendants, there is neither an offer nor acceptance in this matter. Since voluntary arbltratlon is a matter of contract, an agreement by the parties under the laws of contract is a prerequlBite. Here, this prerequisite is not satisfied. Finally, the actions of the parties ln the instant matter are important in this case. ","allowing the filing of a Writ of Summons by counsel fdr Plaintiffs, counsel fo.r Defendant filed its Entry of Appearance and Demand for Jury Trial. Thereafter, both parties entered into a course of pleadings and discovery followed by deposltions of the part~es. The above activitles on the part of both partl.es clearly manifest the intent to follow the rules of procedure with the ultimate conclusion being a jury trial and not "binding" arbitration. As noted above, Plaintiffs aro unable to establish even the most rudimentary elements for an agreement to arbitrate this matter. In light of this, Plaintiffs' Petitlon to Compel Arbitration should be denied. Where there is no clear, 6 2. Thc) UU.ng of' the Ordor and Motion 1:0 lIavo [{tile M<lde Absolute followed PlaInt:1fffl' filing of il Hule to Show Cause directed to Defendants why saId matter should not: b€) entered. A copy of the Hule 1:0 Show Cause is attached hereto as l~xhibJt "B". 3. 1'he Plaintiffs' Motion 1;.0 Compel Binding Ar.bH.ration was forwarded to counsel for Defendants via FIrst Class Mail on June 24, 1998. 4. A response to the Plalntiffs' Motion to Compel Bindlng Arbitration was prepared by counsel for Defendants on or about June 26, 1998 but, inadvertently, was not filed. 5. Upon receipt of Flaintlffs' MoUon to, Make Rule Absolute, forwarded by PlainUffs' counsel to the Court on or about August 20, 1998, counsel for Defendant realized the oversight and had the Response to Plaintlffs' Motirm to Compel BindIng Arbitratlon flled. 6. On August 20, 1998, a Reply to Plaintiffs' Motion to Have Made Rule Absolute was also filed on behalf of Defendants. 7. Defendants seek reconsideration of this Court's Order dated August 21, 1998, orderlng this matter to be referred to binding arbitratlon. 8. Defendants object to having thls matter heard before binding arbitration and riever agreed to same at any tlme. 2 ,~. "",." l' t" ClIlrrlS I{. LON(i PnlllHllHllUI'Y t'ulllhcrlall{l ('(IUIlI)' ()Ill' ('(l\lrthoIlSL' Sqtllll'l~ Curlble.I'A 17(11) t, \ ~ ~ .\~\'Uj~ lsCJ.. \ , \J.D. fu'L \\\l \\c)sW3\)\U\\~ \1 \\)10 .f ~k ,i; ,If.'';~ '~ f , , _ .' ~ ."\" " ., "t-, 11 :~-". ~ ..\ "";~ l~;\~i! f \t" \ .:'1t,~ 't, T ,I , ..it 11;;(, ,'to' I(jf"~i -f~." i :Wi ,I."; , ,;, ... h, ir t' " ~ I 'l ,t; ',,,,1,. .. ~.'I ,!> AUG 2 7 199~W\ THOM,t,S. THOMAS & HAFER. LLP By: Jemee J. Dodd.o, Eequlre Attorney 11Ienllllcellon No. 44678 308 North Fronl Slreel P.O. BOK 989 Herrleburg, PA 17108 (717) 237-7100 Attornoy. for Defendenla: Glorle Merle Klnbeck end Cellell Klnbeck, Inc. IN THE: COllPT OF' COMMON PLE:AS OF' ClIMBEHI.AND COUNTY, PE:NW;'{LVANIA CIVIL OIVTTroN - LAW LEWIS H cHlILL and MAHGlIE:RITE CRULL, NO. 98-2551 Civil Term Plaint.! Ifs, IN CIVIL ACTION v. GLORIA MARIE KINBAcK and CALLEN KINBACK, I NC . , JUHY TRIAL DEMANDED BY JUHY OF TWELVE PERSONS Defendants. BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR RECONSIDERATION OF COURT ORDER DATED AUGUST 21, 1998 I. STATEMENT OF FACTS AND PHOCEDURAL IITSTORY. -> .-~~---~ This matter was instituted via Writ of Summons filed on or about April 4, 1998. A Rule to File Complaint was issued in this matter on May 12, 1998. Pursuant to the above, Plalntlffs filed thelr Complalnt in this matter on June 11, 1998. Thereafter, Plaintiffs filed a Motion to Compel Binding Arbitration and same was served upon counsel for Defendants. A response to the Motlon to Compel Binding Arbitratlon was drafted on June 26, 1998 by counsel for Defendants but, inadvertently, II I. !\B.QIl.t1I':N'r_r~ND_ ^1l'!'lI9l'--!.TI E:S. A Motion for Reconsideration is addressed to the Bound dlscl'etion of the '!'rlal Court. ^ '['rial Court alwilYs haB the authority to reconsidiJr Us own Orders. ~oore. v. Moore, ~j35 Pa. 18, 634 A.2d 163 (1993). ^ '!'dal Court has t.he lnherent power to reconsider its own ruUngs. !!utch1fl.!'!21} by f!.L.U,_0.~J.:.!1S9l~,...Y..~. Luddy, 417 Pa. Super:. 93, 611 A.2d 1280 (1992). :Juch reconsideration may be on motion by a party or by the Court, sua sponte. See 42 Pa. C.S.A. 5 5505. See also, Stockton v. !?tockt9!l.' Pa. Super. _...._' 698 .'\.2d 1334 (199'1). In the instant matter, Defendants are request:l.n~l the Court reconslder its Order making the Rule Absolute on Plaintiffs' Motion t.o Compel Binding Arbitration and to vacate same. Defendants requests the Court permit the Matter to be heard on lts merits rathSr than permit same to be based upon failure to fIle a response to Plalnt1ffs' Motion where sLlch response had been prepared but inadvertently not filed. Defendants seek the rellef of this Court in this matter as Plaintiffs have requested that the right to a jury tdal be usurped by Plaintiffs' motion to refer this matter to bindlng arbitration where it is not alleged at any point that the named Defendants had ever agreed to such a situation. Moreover, the named Defendants exercised their right to a trial by jury when same was demanded (Jt\ or about May 12, 1998. 3 THOMAS, THOMAS & HAFER, LLP By: Jemel J. Dodd-a. Eequlre Attorn!lY Identlfleellon No. 44878 305 North Front Streot P.O. Box 999 Herrllburg, PA 17108 (717) 237-7100 AttorneYI fo/' DefendenlB: Glorle Merle Klnbeok and Callen Klnbeok, Ino. - IN TIIf: CaUl,,!, OF' COMMON PLf:Ac: 01,' CUMBf:PLAND COUNTY, P[O~NNSYLVANIA CIVIL DIVISION - LAW L8WIS R CPUL!. and MARGU8PIT8 CRULL, NO_ 98-255l Civil Term Plaintiffs, IN CIVIl, ACTION v. GLORIA MARIE KINBACK and CALLEN KINBACK, INC., JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS Defendants. DEFENDANTS I RESPONSE TO PLAINTIFFS' MOTION TO HAVE RULE MADE ABSOLUTE COME NOW the Defendants, Gloria MarJe KInback and Callen Klnback, Inc _, by and through their counsel, ,James J. Dodd-o, Esquire, of Thomas, Thomas & Hafer, LLP, and for their Response to PlalntIffs I Motl.on to Have Rule Made Absolute, set forth as follows: 1. lldml t ted. 2. Admltted. 3. Admltted. 4 . Admltted in part and denIed in part. that the response was not filed. However, It is admitted a Reply to 4. Adml t ted only tha t on Jun8 1, 1996 Plaintiff Lew.ls Crull was involved as a peclestr:lan In an accident. The scope and extent of the in) uries as referenced is dEJCd.ed. I' Denied. 1'0 the contrary, the injuries to the .J. Pl~lntiff were due to negllgence of Piaintlff. Answering Defendants incorporate herein by reference their Answer to Plaintiffs' Complaint. 6. Denled. After reasonable investigation the Answerlng Defendant. ls without such ~nowledge or .Information because the means of proof are within the excluslve control of an adverse party or hostile person. Strlct proof thereof is demanded at the time of trial. 7. As Mutual Senefl t is not a party to this actlon, this averment fails to refer to aFJarty and is therefore irrelevant to the instant action. 8. Denled. To the contrary, no agreement to enter lnto any binding arbitration was made. It ls denied that any ~orrespondence confirmed any agreement or that any agreement. was made. 9. Admitted only that the matter was referred by M1:ttual Benefit to Attorney Speaker for further handling. It ls further admitted that Willlam Maxwell denied any agreement for arbitration ln this matter. '0.. Lt ) ti_~ ii~ ,-; " I , C f. , , , , i i , '"TO , I ,i , l. ~ f) , I , i i;_ , r. IIt.L II, :> ,:" C:J '11'0' 'I' ~ - -f , . ',. 'I' ", :"::j I : ~ I . ,; 1;"1 'j,lcfll)~ .lfa '. ,.' :'~ c-~-:-_. ~\;;;i ,"'] '-,' (,i '" ',,- " ,~ t' ,. -I, -,,-,, ,e_ ,-- '! :~ ~:; - j,--- -Ii-< --'c"'" 1:,'-' --(' ~ --" I, I-i~:\-i' 11-: '_J_ _, _""~ ,,- _:\_;-:?:i~/ _,,' 'F~ ;-'1 t- ~:,'~~ - -\ I -'-)-~'-;--:;" 'i: il i"""'-' ;:~ L I_~:_.- _[ . ;-:--' ':-"i~-;'(' ~- --, ".-,-- ':~~~il~~I' ~ ----, J -"-'-"'1-, ---. :-JiS,:-' ~- , - 'i ' LIWI8 R. ORULL, an4 MARGUIRIT. CRULL, hi. wife, Plaintifh v. I IN TUB OOURT or OOMMON PLEAS I OUMBBRLAND OOUNTY, PINNSYLVANIA I I I NO. \18-2551 I I CIVIL ACTION - LAW I I JURY TRIAL DEMANDED - GLORIA KARX. IINBACI an4 CALLEN IINBACI, INC., Defendant. RULE TO SHOW CAUS~ AND NOW, this ;~,....J Day Of-/:=-' 1998, upon careful consideration of Plaintiff's Motion to Compel Binding Arbitration, A RULI I8 HEREBY ISSUED upon Defendant, to show cause, if any, they should have why Plaintiffs' Motion to Compel Binding Arbitration should not be granted. said Rule is returnable within ().O .da:y's. ) BY TH~r=....\ ~' &l1Nff~ E. ,,,,../I,) J. t.%..../orull/ord.r LawX, a. CRULL, .nd MARGUBRIT! CRULL, hi. vif., Plaintiff. v. I IN THB COURT O. COKMON PLBAS . CUMBBRLAND OOUNTY, PBNNSYLVANIA I . . NO. 98-2551 . I CIVIL ACTION - LAW . I JURY TRIAL DEMANDBD GLORIA MARl! KINBACK and OALL!N KINBACK, INO., Defendant. ORDER AND NOW th is day of w, 1998, it is hereby ORDBRBD that Defendants' submit to Bindinq Arbitration/Mediation. BY THE COURT: J. of Pennsylvania with offioes looated at, inter AliA, at 409 Penn street, Huntingdon, Pennsylvania, 16652-0577. 4. On June 1, 1996, Plaintiff, Lewis Crull, was seriously injured in an automobile oollision. 5. Th~ oollision and resulting injuries to the Plaintiff were solely or partly oaused by the negligenoe of Gloria Kinbaok and her employer, Callen Kinback, Inc. 6. At the time of the aforementioned oollision, and at all Times pert.inent hereto, Plaintiff had Medioare coverage for medioal expenses, but this coverage has since been exhausted. 7. At the time of the oollision, Callen Kinback, Inc., was insured under Mutual Benefit Insurance Company. Said polioy was in full force and effeot on the day of the oollision. 8. On or about December 4, 1997, after protraoted disoussions and negotiations, agreement was reached to enter into binding arbitration. David Harber, on behalf of Mutual Benefit, represented that he had the authority, after discussing it with his supervisors, to enter into such an agreement. Plaintiffs' Counsel oonfirmed the agreement with oorrespondenoe to Attorney Peter 2 tec/documents/oertserv LIWI8 R. CRULL, an4 MARGUlkITI CRULL, hi. wife, Plaintiff. v. I IN THB OOURT or OOMMON PLIA8 I CUMSIRLAND COUNTY, PIHHSYLVAHIA I I I NO. '8-2551 I I CIVIL ACTION - LAW I I JURY ~RIAL DEMANDED GLORIA KARl. XIHBACk an4 CALLI. XINBAOK, INC., Vef.n4ant. QBRTIFICATI OF SERVICI AND NOW, this 29th day of May, 1998, I hereby oertify that! have, on this date, served a true and correot copy of the enolo8ed Plaintiffs' Motion to Compel Binding Arbitration, upon the Defendant by mailing the same to their attorney of reoord, via fir8t class, United States mail, postage prepaid, and addressed a. folloW8: J.... J. D044-0, ..quir. Tho.a., Thoma. , Baf.r, LLP 305 H. Front Str..t, 6th Floor P.O. Box '99 Barri.burq, PA 17108 Mr. Willi.. R. Maxv.ll Mutual B.n.fit Inauranc. 00. 40' P.nn Str..t Buntinq40n, PA 16652-0577 HANDLBR AND WIENER '" ,', ~'.' .Z ' '.Jnl"'~, fg',i' .le':1 !I:~ "J' ,.,'t ';;:!\I~:j ',:1,:;:>.\ ~,:,-:--, ;T!-(!'_l.'_' '>;' - ~---'-/-;-;LJ1\ _0." ,,~___ - -_, _ _ f~ --)~ ,. , , '(, " LEWIS R. and MARGUERITE CRULL I I I I I I I I IN THE COURT OF COMMON PLEAS OF CUMBERI~ND COUNTY, PENNSYLVANIA V. GLORIA MARIE KINBACK and CALLEN KINBACK, INC. NO. 9B-2551 CIVIL TERM CIVIL ACTION - LAW J.N RE: PLAINTIFF" S MOTIO~_ TO COMPEL ARBITRA'rION BEFORE; GUIDO. J. OPINION AND ORDER OF COURT On June 16, 199B, Plai.ntiff filed a Motion to Compel Binding Arbitration. Defendants eventually filed a reply opposing the motion. A hearing was held before this Court on September 3, 199B, a.t which time we made certain findings of fact. The parties were directed to submit briefs based upon those findings of fact. The briefs have beell filed and this matter is now ready for disposition. FINDINGS OF FACT At the hearing of September 3, 199B, we made the following findings of fact: 1) In November of 1997 David Harber of Mutual Benefit Insurance Company [the insurer for the Defendants] entered into settlement negotiations with Plaintiffs' counsel, Eric Wiener, Esquire. 2) When it became apparent that the case was lIot going to be settled, Mr. Harber proposed that the matter be submitted to an alternative dispute resolution program such as mediation or arbitration. 3) Mr. Wiener indicated that because of his clients' ages, he NO. 90-2551 CIVIL TERM would only consider an alternative dispute resolution if i.t would be binding. He proposed binding arbitration. 4) Mr. Harber indicated that he would have to eheck with his supervisor Binee his company did not normally look favorably upon binding arbitration. 5) In late November or early December of 1997, Mr. Harber telephoned Mr. Wiener and advised him that he had authority to enter into binding arbitration. Mr. Wiener accepted the offer and the parties agreed to submit the dispute to binding arbitration. 6) Mr. Wiener confirmed the agreement by letter dated December 4, 1997, to Defendants' attorney, Peter Speaker, Esquire. This letter was copied to Mr. Harber. 7) In March of 199B, Mr. Harber's supervisor advised ~Ir. Wiener that the company had no intention of submitting the matter to binding arbitration. B) The Court specifically finde as a fact that an agreement to arbitrate was entered into between Mr. Harber and Mr. Wiener. However, no agreement existed as to the type of arbitration, i.e., statutory, contractual, etc.. lliCUSSION The only issue raised by Defendants in their brief is that the agreement to arbitrate is not complete (and therefore not enforceable) because it did not contain a provision regarding the type of arbitration. However, the Defendants' argument fails in 2 FILCfHHICE 0:' n',: :'!1,"'(1'{)I'NW 9[) SFP?,tl MIIO:?'~ eli'.,', . .. ""t.I]" ,h;..''-_I ",. ._'d..', r (;'1"'\"'(\""'\ L ,,',,1) ,i,''! ,I" '." ,. ~ :\! I t r L ,-tht-~~1"" l' ,I) 1'1 ft j1 ,a ,. '. ,.;,< I''#J ~\f ",1(':' . . . \ \'L',~:,'- ~h~.' fl. 'l. , . f , ~ \ , I I I , ~ ~ ~ { { I r '\ 1\' " ,\- II '-'\ "'; ,J. "(;':".-" .,. .~ I"~ , '.' ,(~',\' J ,t~~ ~'_- I J '. .ft,... ',\i ) --" .:.-.~-- ;ttfr :/f, , , t 'W\'I;>~ \JI4~. , frf . AI~ , l/. .~ ... , , . .. LEWIS R. CRULL cnd MARGUERITE CRULL, hie wlf., Plllntlffe : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSVLVANIA v. . . : No.lfS.211111 GLORIA MARIE KIN BACK Ind : CIVIL ACTION. LAW CALLEN KIN BACK, INC., Defendante : JURV TRIAL DEMANDED ----~~-----....---........-- f'RAECIP~lQ.D1SCONTINUE TO TH E PROTHONOTARV: Please mark the above-caplloned case, sellled, discontinued and satisfied. Respectfully submitted, HANDLER, HENNING & ROSENBERG r'~ .-._.~? By: ,/; . David H Rose Supreme Co 1.0. # 20569 319 Marke Street P.O. Bo 177 Harrlsl:lOrg, PA 17108 (717)238-2000 Attorneys for Plaintlff(s)