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HomeMy WebLinkAbout03-1263 BRITT P. McCARDLE Sycamore Farm 2142 Sulphur Run Road Jersey Shore, PA 17740 Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. : JURY TRIAL DEMANDED ; NO. 03 -/JJ,,;3 Ciu I.-L'-- 1t.tz.J'Y) NICHOLAS HERST 329 Walnut Street Reedsville, PA 17084 and CENTRAL LOCATING SERVICE, LTD., 401 East Louther Street, Suite 302 Carlisle, PA 17013 Defendants NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE CONTACT: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 ELlON, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. By R~I.:#21030 Attorney for Plaintiff 125 East Third Street Williamsport, PA 17701 (570) 326-2443 BRITT P. McCARDLE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW NICHOLAS HERST and : JURY TRIAL DEMANDED CENTRAL LOCATING SERVICE, LTD., : 11 I '---r- Defendants : NO. OJ - 1~/P3 cio\.\.., I~ COMPLAINT 1. Plaintiff, Britt P. McCardle, is an adult individual residing at Sycamore Farm, 2142 Sulphur Run Road, Jersey Shore, Clinton County, Pennsylvania 17740. 2. It is believed and therefore averred that Defendant Central Locating Service, Ltd. is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with an office and principal place of business located at 401 East Louther Street, Suite 302, Carlisle, Cumberland County, Pennsylvania, and doing business in the Commonwealth of Pennsylvania. 3. Defendant Nicholas Herst is an adult individual residing at 329 Walnut Street, Reedsville, Mifflin County, Pennsylvania. 4. It is believed and therefore averred that Defendant Nicholas Herst resides with his parents, Mr. and Mrs. Lawrence Herst, at the aforementioned address. 5. On August 3, 2002, at approximately 3:30 p.m., Plaintiff Britt P. McCardle was a right front seat passenger in a 1997 Chevrolet pick-up truck operated by Defendant Nicholas Herst. 6. On August 3, 2003, at approximately 3:30 p.m., Defendant Nicholas Herst was operating the aforementioned vehicle south - bound on Fairview Street in South Middleton Township, Cumberland County, Pennsylvania. 7. On August 3, 2003, at approximately 3:30 p.m., it was daylight, there were no adverse weather conditions, and the road surface was dry. 8. Fairview Street is a two-lane, two-way road between Routes 841 and 74. 9. The asphalt pavement is marked with white edge lines and double yellow median lines on Fairview Street in the aforementioned area. 10. On August 3, 2003, at approximately 3:30 p.m., Defendant Nicholas Herst lost control of the vehicle he was driving, which left the roadway on the right side, traveled down an embankment, and struck a tree head-on. 11. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst was an agent, servant, and/or employee of Defendant Central Locating Service, Ltd., acting in the course and scope of his employment with Defendant Central Locating Service, Ltd., and in the furtherance of the business interests of Defendant Central Locating Service, Ltd. 12. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, the vehicle that Defendant Herst was operating on August 3, 2003 was owned by Defendant Central Locating Service, Ltd. 2 13. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Central Locating Service, Ltd. had entrusted the use of the subject vehicle to Defendant Nicholas Herst. 14. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Central Locating Service, Ltd. was vicariously responsible for the actions of Defendant Nicholas Herst. 15. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst had express permission to drive the subject vehicle owned by Central Locating Service, Ltd. 16. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst had implied permission to drive the subject vehicle owned by Central Locating Service, Ltd. 1 7. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Plaintiff Britt McCardle had express and/or implied permission to be a passenger in said vehicle. 18. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle sustained at least the following injuries: a) fracture of the right zygoma; b) fracture of the right frontal zygomatic suture; c) fracture of the inferior orbital rim; d) displaced blowout fracture of the right inferior floor of the orbit; e) fracture of the right lateral buttress; f) displaced bilateral nasal fractures; g) right lateral maxillary sinus fracture; h) deviation of the nasal fracture to the left; 3 i) right lateral maxillary sinus buckling; j) fluid in the sinus; k) hematoma on the inferior orbital floor; I) extraocular hemorrhage; m) pneumo-orbit and soft tissue swelling about the orbit; n) comminuted open left ankle fracture of the talar neck; 0) dislocation of left ankle talus; p) left ankle peroneal tendon dislocation; q) left ankle lateral collateral ligament tear; r) sclerosis of the left proximal pole; s) bony fragments adjacent to the inferior aspect of the left medial malleolus; t) closed right ankle fracture of the medial malleolus; u) comminuted closed right wrist intra-articular fracture of the distal radius; v) right second and third metacarpal fractures; w) ulnar styloid fracture; x) right pneumothorax; y) muscle spasm; z) whiplash injury; aa) closed head injury; bb) rib fractures; cc) permanent disfigurement and scarring; and dd) permanent disability. 1 9. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle's injuries required: a) in flight closed reduction of the left ankle while en route via helicopter due to ischemic left lower leg; b) blood transfusion; c) intubation and respiration; d) open reduction internal fixation of the inferior fracture; e) placement of screws in the inferior zygomaticomaxillary process, the frontal zygomaticomatic process and the anterior wall of the maxillary sinus on the right side; f) open Medipore (alloplast) implant of the orbital floor blowout fracture; g) closed reduction of the nasal fracture that was known not to be the final definitive procedure; 4 h) closed reconstructive septorhinoplasty with osteotomies, narrowing of the dorsum and tip with strip and suturing; i) open irrigation and debridement of the left hindfoot; j) open reduction of the left ankle talus; k) internal fixation of the left ankle talus with three fully threaded screws transfixing the talar neck fracture; I) open reduction of the right medial malleoli; m) internal fixation of the right medial malleoli with two fully threaded screws transfixing the medial malleolus; n) open reduction of the right distal radius; 0) internal fixation of the right distal radius with malleable plate and multiple screws transfixing the fracture through the distal radius; p) relocation of the peroneal tendon; q) repair of the retinaculum; and r) repair of the lateral collateral ligament. 20. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has incurred past and future medical expenses in excess of amounts recoverable pursuant to the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. ~ 1711 et seq. 21. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has incurred past and future income loss in excess of amounts recoverable pursuant to the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. ~ 1711 et seq. 22. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has sustained permanent disability resulting in past and future diminished earnings and earnings capacity. 23. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has sustained permanent disfigurement. 5 24. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has sustained significant past and future physical pain and emotional suffering. 25. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has suffered in the past and continues to experience a marked diminution in her ability to enjoy life and life's pleasures. 26. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has suffered and continues to experience embarrassment and humiliation. COUNT I - NEGLIGENCE Britt P. McCardle vs. Defendant Nicholas Herst 27. Paragraphs 1 - 26 inclusive of Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 28. Defendant Nicholas Herst owed a legal duty unto Plaintiff Britt P. McCardle to operate his vehicle in a safe and prudent manner, and Defendant Nicholas Herst breached this legal duty. 29. Defendant Nicholas Herst owed a legal duty unto Plaintiff Britt P. McCardle to operate his vehicle consistent with the laws of the Commonwealth of Pennsylvania, and Defendant Nicholas Herst breached this legal duty. 30. Defendant Nicholas Herst was negligent as a matter of law in that he: a) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~3309 by leaving the lane of travel that he occupied; 6 b) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~ 3714 by driving a vehicle in careless disregard for the safety of persons in his vehicle; c) failed to keep the vehicle he was operating under control; d) collided with a tree; e) failed to take evasive action to avoid the collision with the tree; f) was inattentive to surrounding circumstances while driving on Fairview Street. 31. Plaintiff Britt P. McCardle sustained the aforementioned injuries and damages as a direct, proximate, and/or substantial result of the negligence of the Defendant Nicholas Herst. WHEREFORE, Plaintiff Britt P. McCardle demands judgment against Defendant Nicholas Herst in an amount in excess of the requirements for compulsory arbitration. COUNT II - AGENCY Britt P. McCardle vs. Central Locatina Service, Ltd. 32. Paragraphs 1 - 31 inclusive of Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 33. Defendant Central Locating Service, Ltd. is legally responsible for all injuries and damages caused by Defendant Nicholas Herst, based upon the fact that at the time of the accident that is the subject of this law suit, Defendant Nicholas Herst was a duly authorized agent, servant, and/or employee of Defendant Central Locating Service, Ltd., acting in the course and scope of his employment with Central Locating Service, Ltd., and in the furtherance of the business interests of Central Locating Service, Ltd. 7 34. By and through the actions of Defendant Nicholas Herst, Defendant Central Locating Service, Ltd. was negligent as a matter of law in that Defendant Nicholas Herst: a) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~3309 by leaving the lane of travel that he occupied; b) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~ ~ 3714 by driving a vehicle in careless disregard for the safety of persons in his vehicle; c) failed to keep the vehicle he was operating under control; d) collided with a tree; e) failed to take evasive action to avoid the collision with the tree; f) was inattentive to surrounding circumstances while driving on Fairview Street. 35. Plaintiff Britt P. McCardle sustained the aforementioned injuries and damages as a direct, proximate, and/or substantial result of the negligence of Defendant Central Locating Service, Ltd., by and through the actions of its duly authorized agent, servant, and/or employee, Defendant Nicholas Herst. WHEREFORE, Plaintiff Britt P. McCardle demands judgment against Defendant Central Locating Service, Ltd. in an amount in excess of the requirements for compulsory arbitration. COUNT III - VICARIOUS LIABILITY Britt P. McCardle vs. Central Locating Service. Ltd. 36. Paragraphs 1 - 35 inclusive of Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 37. Defendant Central Locating Service, Ltd. is legally responsible for all injuries and damages caused by Defendant Nicholas Herst, based upon the fact that 8 at the time of the accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst had express permission to drive the subject vehicle owned by Central Locating Service, Ltd. 38. Defendant Central Locating Service, Ltd. is legally responsible for all injuries and damages caused by Defendant Nicholas Herst, based upon the fact that at the time of the accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst had implied permission to drive the subject vehicle owned by Central Locating Service, Ltd. 39. By and through the actions of Defendant Nicholas Herst, Defendant Central Locating Service, Ltd. was negligent as a matter of law in that Defendant Nicholas Herst: a) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~3309 by leaving the lane of travel that he occupied; b) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~ ~ 3714 by driving a vehicle in careless disregard for the safety of persons in his vehicle; c) failed to keep the vehicle he was operating under control; d) collided with a tree; e) failed to take evasive action to avoid the collision with the tree; f) was inattentive to surrounding circumstances while driving on Fairview Street. 40. Plaintiff Britt P. McCardle sustained the aforementioned injuries and damages as a direct, proximate, and/or substantial result of the negligence of Defendant Central Locating Service, Ltd., by and through the vicarious liability of Defendant Central Locating Service, Ltd. to Defendant Nicholas Herst. 9 WHEREFORE, Plaintiff Britt P. McCardle demands judgment against Defendant Central Locating Service, Ltd. in an amount in excess of the requirements for compulsory arbitration. ELlON, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. By ~~ Robert B. Elion, 1.0. #21030 Attorney for Plaintiff 125 East Third Street Williamsport, PA 17701 (570) 326-2443 10 ,!J. VERIFICA TION I verify that the facts set forth 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. Section 4904, relating to unsworn falsification to authorities. ~ <{142~ rrtt P. McCardle Dated: ,3 hq J03 , I -' () "69- f..J ~ 1:t '[ () . l . , . -- U( ., (AJ - () ,> < ~ r- .J (. - ::J " -- - ' , lIt --.:z F '. :,,) I l J . " ) - ..' ) - .~ -. - SHERIFF'S RETURN - OUT OF COUNTY , . CASE NO: 2003-01263 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCARDLE BRITT P VS HERST NICHOLAS ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HERST NICHOLAS but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of MIFFLIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On April 7th , 2003 , this office was in receipt of the attached return from MIFFLIN Sheriff's Costs: Docketing Out of County Surcharge Dep Mifflin County 18.00 9.00 10.00 31.00 .00 68.00 04/07/2003 ELION WAYNE ~ R _ ;homas Kline - -- Sheriff of Cumberland County GRIECO CARLUCCI SH Sworn and subscribed to before me this If> ~ day of ~ ;lUo3 A.D. ~(J. ~ ~ .... Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2003-01263 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCARDLE BRITT P VS HERST NICHOLAS ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the CENTRAL LOCATING SERVICE LTD DEFENDANT , at 1035:00 HOURS, on the 26th day of March , 2003 at 401 EAST LOUTHER STREET SUITE 302 CARLISLE, PA 17013 by handing to MICHELLE KISLER, ADMIN ASST ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 3.45 .00 10.00 .00 19.45 r~~ R. Thomas Kline 04/07/2003 ELION WAYNE Sworn and Subscribed to before By: me this /() t::. day of ~~d~~. A.D. o _n,~ ~ Prothonotary' _ Robed: D. Bowersox, Sheriff Baron ..K~ewis, Chief Deputy Laurie J. Kozak, Deputy Joseph A. Bradley, Deputy Christoher S. Shade, Deputy David W. Molek, Solicitor (717) 248-9656 SHERIFF'S OFFICE MIFFLIN COUNTY 8 North Main Street Lewistown, Pa 17044 (717) 242-1105.. (717) 242-1808 Fax: (717) 248-2907 Plaintiff: Britt P. McCardle Court Number: 03-1263 Civil Term County: Cumberland County Defendant: Nicholas Herst and Central Locating Service, L TO Type of Writ or Complaint: I W't ' rt Notice and Complaint I ~ Complaint Name: Nicholas Herst Address: 329 E. Walnut St. Serve Reedsville, Pa. 17084 At Name: Address: Indicate Unusual Service: D Comm. of Pa. D Deputization D Other Now 20 , I, SHERIFF OF MIFFLIN COUNTY, PA. do hereby deputize the Sheriff of County to execute this Writ and make return thereof according to law. This deputization is made at the request and risk of plaintiff. X Sheriff of Mifflin Co. Special Instructions or other information that will assist in expediting service: Attorney or other Organization requesting service: Telephone No: Date Filed: Robert B. E' n, Esq. (570) 326-2443 3/21/03 lack 0 ge icated above: Date Received: Exp. Date: X 3/25/03 4/20/03 I hereBy C D have legal evidence of service as shown in "Remarks", have executed as shown in "Remarks", the Writ or Complaint described on the individual, company, corporation, etc. at the address shown above or on the individual, company, corporation, etc., at the address inserted below, handing a TRUE and ATTESTED copy thereof. I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., name above. (See Remarks below.) Name and Title of individual served: Served Robin Herst (Mother) for Nicholas Herst Attempts 1 Advance Costs ~ A person of suitable age and discretion then residing at the defendent's usual place of abode. Date of Service: 3/25/03 Date Notary $2.00 Time: 3:20 PM Dep. Int. Address where served (complete only if different than shown above) Dep. Int. Refund $44.00 ~. Notarial Seal Margaret L. Bowersox, Notary Public Lewistown BolO. Mifflin County My CommiSliion Expires Feb. 4. 2006 So Answers: Deputy S" X Sh X 3/28/03 3/28/03 Notarial Seal . In The Court of Common Pleas of Cumberland County, Pennsylvania Britt P. McCardle VS. Nicholas Herst et al SERVE: Nicholas Herst No. 03-1263 civil Now March 24, 2003 , , I, SHERlFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Mifflin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~/ ~' r~e<~-r!~R ,. Sheriff of Cum berland County, P A Affidavit of Service Now, , 20~, at 0' clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this_day of ,20_ COSTS SERVICE MILEAGE AFFIDA VIT $ $ LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 510 Walnut Street, 10th Floor Philadelphia, P A 19106 (215) 627-0303 Attorney for Defendant, Central Locating Service, Ltd. BRITT P. McCARDLE CUMBERLAND COUNTY COURT OF COMMON PLEAS v. CNIL ACTION - LAW NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. No. 03-1263 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance for defendant, Central Locating Service, Ltd., in the above-referenced matter. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Date: 'Ij; t ft 3> BY: AM ~sil ;, ~~, Esquire Attorney for Defendant, Central Locating Service, Ltd. () ~; -o(=t rn(: z- -/ (7) -< r:: <.- ~~tJo ~ )> " :':,u ~J C) :...) -,0 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 51 0 Walnut Street -10th Floor Philadelphia, P A 19106 (215) 627-0303 Attorney for Defendant, Central Locating Service, Ltd. BRITT P. McCARDLE CUMBERLAND COUNTY COURT OF COMMON PLEAS v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. CNIL ACTION - LAW No. 03-1263 DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: A twelve (12) member jury is hereby demanded in the above-captioned case for named defendant, Central Locating Service, Ltd. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Dated: v/tt-/!y BY: Basil A. DiSi , sqUIre Attorney for efendant, Central Locating Service, Ltd. o ~ -ell". 1.1 fr \ ;~_:'J \ .'/" r- ~~.~.. ~l: r:::"...... _r:::"'- p. C'~ c) ~~: ;l.Jf ..:.L1 ~.:) -; :/1.-") ~ () .. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 51 0 Walnut Street -10th Floor Philadelphia, PA 19106 (215) 627-0303 TO: Jf If ()~ You are here=ed to plead. t~.b the enclosed r II),w ~ within twenty (20) days of service thereof or a default judgment may be entered against you. BY:~ Attorney for Attorney for Defendant, Central Locating Service, Ltd. CUMBERLAND COUNTY COURT OF COMMON PLEAS BRITT P. McCARDLE v. CIVIL ACTION - LAW NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. No. 03-1263 DEFENDANT'S. CENTRAL LOCATING SERVICE. LTD.. ANSWER WITH NEW MATTER AND NEW MATTER CROSSCLAIM PURSUANT TO RULE 225Ud) TO PLAINTIFF'S COMPLAINT Defendant, Central Locating Service, Ltd., by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, hereby responds to Plaintiffs Complaint as follows: 1. Denied. Answering defendant, Central Locating Service, Ltd., after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth ofthe averments raised in this paragraph of plaintiff s Complaint. Hence, they are denied with strict proof demanded thereof at the time of trial. 2. Denied as stated. It is only admitted that answering defendant, Central Locating Service, Ltd., is a New York corporation with a principal place of business in the Commonwealth of Pennsylvania. 3. Denied. The averments raised in this paragraph ofplaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required. Nevertheless, answering defendant maintains records which indicate that Nicholas Herst is an adult individual residing at 329 Walnut Street, Reedsville, Pennsylvania. 4. Denied. The averments raised in this paragraph ofplaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required. 5. Denied as stated. Answering defendant admits that on August 3, 2002, at approximately 3 :30 p.m., plaintiff was a right front-seat passenger in a 1997 Chevrolet pick -up truck operated by defendant, Nicholas Herst. It is denied that Nicholas Herst was operating the vehicle within the course and scope of his employment or at the direction of answering defendant. 6. Denied. The averments raised in this paragraph of plaintiff s Complaint are directed to a defendant other than answering defendant. Hence, no response is required. 7. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff s Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time' of trial. 8. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff s Complaint. Hence, they are denied with strict proof thereof at the time of trial. - 2 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATIORNEYS AT LAW 9. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff's Complaint. Hence, they are denied with strict proof thereof at the time of trial. 10. Denied. The averments raised in this paragraph of plaintiff's Complaint are directed to a defendant other than answering defendant. Hence, no response is required. Further, after reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff's Complaint. Hence, they are denied with strict proof thereof demanded at the time of trial. 11. Denied. It is specifically denied that at the time of the motor vehicle accident, which is the subject ofthis lawsuit, and at all times relating thereto, defendant, Nicholas Herst, was acting in the course and scope of his employment with defendant, Central Locating Service, Ltd., and in the furtherance of the business interests of defendant, Central Locating Service, Ltd. Hence, strict proof of the facts supporting these legal conclusions is demanded at the time of trial. 12. Denied as stated. Answering defendant only admits that the vehicle that defendant, Herst, was operating on August 3, 2002, was owned by defendant, Central Locating Service, Ltd. It is further admitted that mere ownership is an insufficient basis to establish liability in the Commonwealth of Pennsylvania. 13. Denied. It is specifically denied that Central Locating Service, Ltd. entrusted the subject vehicle to defendant, Nicholas Herst for use in the manner he used the vehicle on the day of the accident giving rise to this matter. Hence, the averments are denied and strict proof ofthe facts supporting these legal conclusions is demanded at the time of trial. - 3 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW 14. Denied. It is specifically denied that Central Locating Service, Ltd. is vicariously responsible for the actions of defendant, Nicholas Herst. To the contrary, Nicholas Herst acted outside the scope of his employment with answering defendant and was not acting as an agent, servant or employee of answering defendant. Hence, the averments are denied and strict proof is demanded at the time of trial. 15. Denied. It is specifically denied that Nicholas Herst had express permission to drive the subject vehicle owned by Central Locating Service, Ltd. on the day ofthe accident and for the purposes for which he used the vehicle. Hence, the averments are denied and strict proof is demanded at the time of trial. 16. Denied. It is specifically denied that Nicholas Herst had implied permission to drive the subject vehicle owned by Central Locating Service, Ltd. To the contrary, Nicholas Herst was given prescribed parameters for use ofthe vehicle and his use on the day ofthe accident was outside the scope of these parameters. Hence, the averments are denied and strict proof is demanded at the time of trial. 17. Denied. It is specifically denied that Britt McCardle had express and/or implied permission from answering defendant or any agent, servant or employee of answering defendant acting within the course and scope of his employment to be a passenger in said vehicle. Hence, the averments are denied and strict proof is demanded at the time of trial. 18( a) through (dd). Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. - 4- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY' ATIORNEYS AT LAW 19(a) through (r). Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 20. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 21. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 22. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 23. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth ofthe averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 24. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth ofthe averments raised in this paragraph of - 5 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 25. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. 26. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of the Complaint. Hence, they are deemed denied with strict proof demanded thereof at the time of trial. COUNTI-NEGLIGENCE BRITT P. McCARDLE V. DEFENDANT, NICHOLAS HERST 27. Answering defendant incorporates by reference its answers to paragraphs 1 through 26 as if they were fully and completely set forth herein. 28. Denied. The averments raised in this paragraph ofplaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required. In any event, it is specifically denied answering defendant is in any way responsible for the injuries and damages giving rise to this matter. Hence, strict proof is demanded thereof at the time of trial. 29. Denied. The averments raised in this paragraph of plaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required. In any event, it is specifically denied answering defendant is in any way responsible for the injuries and damages giving rise to this matter. Hence, strict proof is demanded thereof at the time of trial. - 6- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY' ATTORNEYS AT LAW 30 (a) through (t). Denied. The averments raised in this paragraph ofplaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required. In any event, it is specifically denied answering defendant is in any way responsible for the injuries and damages giving rise to this matter. Hence, strict proof is demanded thereof at the time of trial. 31. Denied. The averments raised in this paragraph of plaintiff s Complaint are directed to a defendant other than answering defendant. Hence, no response is required. In any event, it is specifically denied answering defendant is in any way responsible for the injuries and damages giving rise to this matter. Hence, strict proof is demanded thereof at the time of trial. WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment in its favor with costs and other such relief this Court deems appropriate. COUNT II - AGENCY BRITT P. McCARDLE V. CENTRAL LOCATING SERVICE. LTD. 32. Answering defendant incorporates by reference its answers to paragraphs 1 through 31 as if they were fully and completely set forth herein. 33. Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions of law, to which no response is required. By way of further response, answering defendant specifically denies that Nicholas Herst was acting in the course and scope of his employment with Central Locating Service, Ltd., and in the furtherance of the business interests of Central Locating Service, Ltd. Strict proof of the facts supporting plaintiffs legal conclusions is demanded at the time of trial. - 7 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY' ATIORNEYS AT LAW 34(a) through (t). Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions of law, to which no response is required. It is further averred Nicholas Herst was acting outside the scope of his employment with answering defendant and, therefore, the averments are denied and strict proof is hereby demanded at the time of trial. 35. Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions of law, to which no response is required. Strict proof of the facts supporting plaintiffs legal conclusions is demanded at the time of trial. WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment in its favor with costs and other such relief this Court deems appropriate. COUNT III - VICARIOUS LIABILITY BRITT P. McCARDLE V. CENTRAL LOCATING SERVICE. LTD. 36. Answering defendant incorporates by reference its answers to paragraphs I through 35 as if they were fully and completely set forth herein. Strict proof of the facts supporting plaintiffs legal conclusions is demanded at the time of trial. 37. Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions oflaw to which no response is required. Strict proof ofthe facts supporting plaintiff s legal conclusions is demanded at the time of trial. 38. Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions oflaw to which no response is required. Strict proof ofthe facts supporting plaintiff s legal conclusions is demanded at the time of trial. 39(a) through (t). Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions of law to which no response is required. It is further averred Nicholas - 8 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW Herst was acting outside the scope of his employment with answering defendant and, therefore, the averments are denied and strict proof is hereby demanded at the time of trial. 40. Denied. Answering defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs Complaint. Hence, they are deemed denied with strict proof demanded at the time of trial. Strict proof ofthe facts supporting plaintiff s legal conclusions is demanded at the time oftrial. WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment in its favor with costs and other such relief this Court deems appropriate. NEW MATTER 41. Plaintiff s Complaint fails to state a claim upon which relief can be granted against answering defendant. 42. Plaintiff may have assumed the risk of her activities. 43. The negligent acts or omissions of other individuals and/or entities may have constituted an intervening, superseding cause of the injuries and/or damages alleged to have been sustained by the plaintiff. 44. The injuries and/or damages alleged to have been sustained by the plaintiff were not proximately caused by answering defendant. 45. Plaintiff s cause of action may be barred in whole or in part by the applicable statute of limitation. 46. The accident complained of in plaintiffs Complaint may have been caused or contributed by others over whom answering defendant had no control and for whom they are not responsible. - 9- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATIORNEYS AT LAW 47. Plaintiffs claims maybe barred and/or limited to the statutes ofthe Commonwealth of Pennsylvania, to motor vehicle insurance and/or motor vehicle accidents. 48. The accident complained of in plaintiffs Complaint occurred while defendant, Nicholas Herst, was acting outside the scope of his employment with answering defendant, Central Locating Service, Ltd. 49. Answering defendant, Central Locating Service, Ltd. assigns vehicles to its employees to be used to travel to work in the morning, throughout the day for business purposes and to drive to one's residence at the end of the day. 50. Aside from "on call" status, the vehicle provided to Nicholas Herst is to remain parked at one's residence until the next working day. 51. While "on call", the vehicle provided to Nicholas Herst is to remain parked at one's residence until the employee is called to perform a job. 52. The vehicle provided to Nicholas Herst is assigned for the sole purpose of performing one's job while on company time. 53. On Saturday, August 3, 2002, defendant, Nicholas Herst, was not "on call". 54. On Saturday, August 3, 2002, defendant, Nicholas Herst, was not in the course of performing a job for answering defendant, Central Locating Service, Ltd. 55. Non-employee passengers, with the exception of authorized customer representatives, are prohibited in Central Locating Service, Ltd. owned or leased vehicles at all times. This includes family members, friends and the general public. - 10- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW 56. The only individuals who may operate or ride in a Central Locating Service, Ltd. owned or leased vehicle are authorized employees of answering defendant, Central Locating Service, Ltd. All others are strictly prohibited at all times. 57. On Saturday, August 3, 2002, plaintiff, Britt McCardle was a non-employee passenger and therefore prohibited from riding in the vehicle operated by Nicholas Herst. 58. Answering defendant hereby reserves the right, upon completion of its investigation and discovery, to file such additional defenses, affirmative defenses., counterclaims and/or third-party complaints as may be appropriate pursuant to the applicable rules of law. WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment in its favor with costs and other such relief this Court deems appropriate. NEW MATTER IN THE NATURE OF A CROSSCLAlM PURSUANT TO RULE 225Ud) AGAINST CO-DEFENDANT. NICHOLAS HERST 59. If the allegations of plaintiffs Complaint are proven, which allegations are specifically denied, the losses, damages and/or expenses allegedly sustained by the plaintiff are due to the negligence and carelessness of co-defendant, Nicholas Herst. 60. If the allegations ofplaintiffs Complaint are proven and liability is imposed upon answering defendant, then co-defendant, Nicholas Herst, is solely liable to plaintiff, jointly and/or severally liable to plaintiff and/or liable over to answering defendant by way of contribution and/or indemnity, any liability on the part of answering defendant being specifically denied. - 11 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment in its favor with costs and other such relief this Court deems appropriate. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Dated: 5/'(0/ BY: Basil A. Di i io, Esquire Attorney for Defendant, Central Locating Service, Ltd. - 12- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW VERIFICA TION Candy Chris tensen , of Central Locating Service, Ltd., hereby verifies that he/she is authorized to make this verification on defendant's behalf, that the facts set forth in the foregoing Answer With New Matter to Plaintiff's Complaint of Defendant, Central Locating Service, Ltd., are true and correct to the best of my knowledge and information and that the statements made therein are subject to the penalties of 18 Pa. C.S., ~4904, relating to unsworn falsification to authorities. e -i? ~1 CERTIFICATE OF SERVICE sr I, BASIL A. DISIPIO, ESQUIRE, hereby certify that on the -L day May, 2003, a true and correct copy of Defendant's, Central Locating Service, Ltd., Answer with New Matter and New Matter Crossclaim Pursuant to Rule 2252(d) to Plaintiffs Complaint was served upon all counsel of record and unrepresented parties by First Class Mail, postage paid. Robert B. Elion, Esquire Elion, Wayne, Grieco, Carlucci, Shipman & Irwin 125 E. Third Street Williamsport, PA 17701 Counsel for Plaintiff, Britt P. McCardle Mr. Nicholas Herst 328 Walnut Street Reedsville, P A 17084 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: ~pjJ -CJ t [1\ -,;..' :;;~~ t'! -~.. ~: ~.-.... .::::. )> (") c:: :?: -. , -.., '. ~\ OJ, n "1, ~:~ i'.',4- ..~..: "T1 -..F~ , 0 \ C', "it , -"1 ~i:') .)nl ~'-I "'"',:>> ~ I f"-) ....-\J '-;,} I" .;:- F IFILESIDA T AFILEIProgressive78321Documentsl 151 ,pra 1 Itde Created: 5/7/03 11:59:03 AM Revised: 5/7/03 0:10:21 PM 7837,151 BRITT P. McCARDLE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 03-1263 CIVIL ACTION - LAW NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD., Defendants JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF 'WILLIAMS & OTTO on behalf of Defendant Nicholas Herst in the above matter. MARTSON DEARDORFF WILLIAMS & OTTO By "I ~ '1 IJV.JL-....- Thomas J. Williams~squire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Nicholas Herst Dated: May 7, 2003 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Robert B. Elion, Esquire ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.c. 125 East Third Street Williamsport, PA 17701 Basil A. DiSipio, Esquire LAVIN, COLEMAN, O'NEIL RICCI, FINARELLI & GRAY 51 0 Walnut Street Suite 1000 Philadelphia, P A 19107 MARTSON DEARDORFF WILLIAMS & OTTO . · VJ~aa1 ricia D. Eckemoad Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: May 7,2003 (") CJ ,) c:: r , 'il ........... ? '- v i:t .l:;u nl rr ---< Z ...-- 2: 1 , i,~~J ~~ en , r~ t. " I~~) :;ro~ , , 5> C" :'.} ;::.: C) ,,- C 1..0 i ill .J> C "~l ..:.... :::l '".f~' --i :n -< 00 -< F:IFILESIDA T AFILEIProgressive7832lDocumentsl151, ans/tde Created: 05/7/0311:59:03 AM Revised: 5/7/03 0: 17:43 PM 7837.151 BRITT P. McCARDLE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLANI) COUNTY, PENNSYLVANIA v. NO. 03-1263 CIVIL ACTION - LAW NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD., Defendants JURY TRIAL DEMANDED ANSWER AND NOW, comes Defendant Nicholas Herst, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and denies generally the averments in Plaintiffs Complaint in accordance to Pa. R.c.P. 1029 (e). WHEREFORE, Defendant Nicholas Herst demands judgment against Plaintiff Britt P. McCardle. NEW MATTER 41. The averments of paragraphs 1 through 40 ofthis Answer are incorporated herein by reference. 42. The Plaintiffs claims are barred by the applicable Statute of Limitations. 43. The Plaintiffs recovery is barred or reduced by the Pennsylvania Motor Vehicle Financial Responsibility Law as amended. 44. Plaintiff or her representative chose the limited tort option by signing a valid selection form. 45. Plaintiffs injuries do not involve death, serious impairment of bodily function or permanent disfigurement. WHEREFORE, Defendant demands judgment in his favor and dismissal of Plaintiffs Complaint with prejudice. MARTSON DEARDORFF WILLIAMS & OTTO B\hJbi~ES::U~ Ten East High Street Carlisle, PA 17013 (717) 243-334Jl Attorneys for Defendant Nicholas Herst Dated: May 7, 2003 VERIFICA nON Thomas J. Williams, Esquire of the firm of MARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Defendant Nicholas Herst in the within action, certifies that the statements made in the foregoing Answer are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~ Lmh \1\; J1 ~ Thomas J. Willia€;. , Esquire CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Robert B. Elion, Esquire ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. 125 East Third Street Williamsport, P A 17701 Basil A. DiSipio, Esquire LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY 51 0 Walnut Street Suite 1000 Philadelphia, P A 19107 MARTSON DEARDORFF WILLIAMS & OTTO ~m@~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 7, 2003 (') C:~) () s: '-.:1 -T, -.". :.'-:::~" --:',. LJ cr; :'~'i" Q) q ~ "'- ( I 2: U} 0) -, C r ~ c: 5> c: N c: '-:1 ,....,;:~ ~:::10 ...c.- =< ~,D r", -< TO: Ael,Q~ You are hereby notified to plead to the enclosed New Matter wIthin twenty (20) days of servIce thereof or a defanlt judgment may be eotere against you. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No,: 28212 510 Walnut Street -10th Floor Philadelphia, PA 19106 Attorney for Defendant, (215) 627-0303 By: Attorney for efendant, Central Locating Service, Ltd. Central Locating Service, Ltd, BRITT P. McCARDLE CUMBERLAND COUNTY COURT OF COMMON PLEAS v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. CIVIL ACTION - LAW No, 03-1263 DEFENDANT'S. CENTRAL LOCATING SERVICE. LTD.. ANSWER WITH NEW MATTER TO PLAINTIFF'S DECLARATORY JUDGMENT Defendant, Central Locating Service, Ltd., by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, hereby responds to Plaintiffs Declaratory Judgment as follows: I. Denied. Answering defendant, Central Locating Service, Ltd., after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiffs Complaint. Hence, they are denied with strict proof demanded lhereof at the time of trial. 2. Denied. The averments raised in this paragraph ofplaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required, Nevertheless, answering defendant maintains records which indicate that Nicholas Herst is an adult individual residing at 329 Walnut Street, Reedsville, Pennsylvania. 3. Denied. The averments raised in this paragraph of plaintiffs Complaint are directed to a defendant other than answering defendant. Hence, no response is required. 4. Denied as stated, It is only admitted that answering defendant, Central Locating Service, Ltd" is a New York corporation with a principal place of business in the Commonwealth of Pennsylvania. 5. Denied. The averments raised in this paragraph ofplaintiffs Complaint are denied as conclusions of law, to which no response is required. Strict proof of the facts support- ing plaintiffs legal conclusions is demanded at the time of trial. 6. Denied. Answering defendant, after reasonable investigation, is without knowl- edge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiffs Complaint. Hence, they are denied with strict proof demanded thereof at the time of trial. 7. Admitted for purposes of this matter, only. 8. Admitted for purposes of this matter, only. 9. Denied. Answering defendant, after reasonable investigation, is without knowl- edge or information sufficient to form a belief as to the lruth of the averments raised in this paragraph of plaintiff s Complaint. Hence, they are denied with strict proof demanded thereof at the time of trial. -2- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW 10. Admitted for purposes of this matter, only. 11. Denied as stated. It is admitted Herst maintained an automobile insurance policy with Progressive. It is further stated the policy is a document that speaks for itself. 12. Denied as stated. The policy is a document that speaks for itself. 13. Denied as stated. The policy is a document that speaks for itself. 14. Denied as stated. It is specifically averred that defendant, Nicholas Herst, did not have the permission of answering defendant to operate the motor vehicle with a passenger at the time of the accident. 15. Denied. Answering defendant, after reasonable investigation, is without knowl- edge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff s Complaint. Hence, they are denied with strict proof demanded thereof at the time of trial. 16. Denied. Answering defendant, after reasonable investigation, is without knowl- edge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff s Complaint. Hence, they are denied with strict proof demanded thereof at the time of trial. 17. Denied. Answering defendant, after reasonable investigation, is without knowl- edge or information sufficient to form a belief as to the truth of the averments raised in this paragraph of plaintiff s Complaint. Hence, lhey are denied with strict proof demanded thereof at the time of trial. WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment with respect to the policy of insurance at issue herein, namely: - 3 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW a. declaring that Progressive under the terms ofthe policy is obligated to defend or indemnify Herst for any claims or losses arising out of the aforesaid accident; b. such further relief as the Court may deem proper and appropriate. NEW MATTER 18. Plaintiffs Complaint fails to state a claim upon which relief can be granted. 19. Plaintiffs cause of action may be barred in whole or in part by the applicable statute of limitations. 20. Plaintiff s claims are barred by the doctrine of laches. 21. Plaintiff's claims are barred under the equitable doctrine of estoppel. 22. Answering defendant hereby reserves the right, upon completion of its investiga- tion and discovery, to file such additional defenses, affirmative defenses, counterclaims and/or third-party complaints as may be appropriate pursuant to the applicable rules oflaw. WHEREFORE, answering defendant, Central Locating Service, Ltd., demands judgment with respect to the policy of insurance at issue herein, namely: a. declaring that Progressive under the terms of the policy is obligated to defend or indemnify Herst for any claims or losses arising out of the aforesaid accident; b. such further relief as the Court may deem proper and appropriate. LAVIN, COLEMAN, O'NEIL, RiCCI, FINARELLI & GRAY Dated: J!\.,>(6? { BY: Basil A. Di i ' 0, Esquire Attorney for efendant, Central Locating Service, Ltd. - 4- LAVIN, COLEMAN, O'NEIL. RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW ,~JL, 21. 2003:12:26PM- .-'iRISK MANAGEMENT 1-215-784-1350 ~NO. 374 fP. 2'6 ""uu, ~ VER.IFICATION . otc-lLocating Stnb, Ltd., hcrelIywrifi.es tbathclsbeis a'atbl:niftd.1o make tbia vmr.Dalion on clefim.dInt'5 behalf; ~ the:tacts sel: fb:tA m the fiue~g.AJuwer to PlI.iatiff's DeeIarat.:,ry Ivilr.-t ofDefewlu.t, CeD.tr.l Loeati:l:ag Serviee, Lid., are true and cozrect to the, best of my know::edge and iDfo=adoD ~ tha1 the statements 3Z18de ~ are subject to 1heP'"",,11ics of 18 Pa. C.S.. j49 :14. ~'"fl.,S 'to umwom l!oldfirJOtion to lW1!wri1ies. ~'~1 (jA 7 - Jft"/l . RECEIVED TIME JUl,21. 12: 08PM PRINT TIME JUl. 21. 12: 10PM CERTIFICATE OF SERVICE I, BASIL A. DISIPIO, ESQUIRE, hereby certify that on the 25th day July, 2003, a true and correct copy of Defendant's, Central Locating Service, Ltd" Answer with New Matter to Plaintiff's Declaratory Judgment was served upon all counsel of record: Via Federal Express James G. Nealon, III, Esquire Nealon and Gover 2411 N, Front Street Harrisburg, P A 1711 0 Counsel for Plainliff, Progressive Northern Insurance Company Via U.S. Mail Robert B. Elion, Esquire Elion, Wayne, Grieco, Carlucci, Shipman & Irwin 125 E. Third Street Williamsport, PA 17701 Counsel for Co-Defendant, Britt P. McCardle Via U.S. Mail Nicholas Herst 329 E. Walnut Street Reedsville, P A 17084 Co-Defendant LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: ASIL A. DIS 10, ESQUIRE Attorney for Defendant, Central Locating Service, Ltd. 0 Q 0 c:: (.,) -rOt ? -Ol~l S :,-.:-1 rrlr' r::.:: ','."'1""1 2:.: I ') rc- :?f- '" n-; C/:>jo. <:0 CJ (St ~:') ~,~,-, Cl ~(:' " ::J!: ~:j{:~ :i> (j is> ~"-):n C. '- 2 " t:- -", ::< ~'O -< LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 510 Walnut Street, 10th Floor Philadelphia, PA 19106 (215) 627-0303 Attorney for Defendant, Central Locating Service, Ltd. BRITT P. McCARDLE CUMBERLAND COUNTY COURT OF COMMON PLEAS v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. CIVIL ACTION - LAW .:-::' No. 03-1263 (') f~ ~~n' !"""I,lL ~J~ ~" L. :0 ~~~ , . ~.' ;-) r<:I f= PRAECIPE TO THE PROTHONOTARY: . . ';';' Kindly withdraw Defendant's, Central Locating Service, Ltd., Answer with New Matter to Plaintiff's --'J -< cn Declaratory Judgment, filed on July 28, 2003, as it was erroneously filed in this litigation. LAVIN, COLEMAN, O'NEIL, RICCI, FINAiRELLI & GRAY Date: 6'/20/03 BY:-:&~ fJ t9l f1J Basil A, DiSipio, Esquire Attorney for Defendant, Central Locating Service, Ltd. (') i~ 0 c: w -n ~ ~ ~ -0 n: :~ !'"'ll \>.: ;-.::: 2~ i "\.) ~l , 0 ~; ;~<,: , :;'? , )c.. .':, :':u CO -< LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 510 Walnut Street, 10th Floor Philadelphia, PA 19106 (215) 627-0303 Attorney for Defendant, Central Locating Service, Ltd. BRITT P. McCARDLE ClJMBERLAND COUNTY COURT OF COMMON PLEAS v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. CNIL ACTION - LAW No, 03-1263 CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, defendant, Central Locating Service, Ltd., certifies that: (1) A Notice of Intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoenas are sought to be served; (2) A copy of the Notice of Intent, including the proposed subpoenas, is attached to the Certificate; (3) The subpoenas which will be served are identical to the subpoenas which are attached to the Notice of Intent to serve the subpoenas, LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Basil A. DiSipi , E quire Talene N. Mege' , Esquire Attorneys for defendants, Central Locating Service, Ltd. Dated: October 7, 2003 CERTIFICATE OF SERVICE I, Basil A. DiSipio, Attorney for Defendant, Central Locating Service, Ltd., hereby certifY that I have this date, the 7th day of October, 2003, via First Class U.S. Mail, served a true and correct copy of the Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 to all counsel listed below: Robert B. Elion, Esquire Elion, Wayne, Grieco, Carlucci, Shipman & Irwin 125 E. Third Street Williamsport, P A 1770 I Thomas J. Williams, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 /~~ Basil A. DiSipio, 2 I , ):' } ~ ~ "(, '~ ~: LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 510 Walnut Street, 10th Floor Philadelphia, PA 19106 (215) 627-0303 BRITT P. McCARDLE v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. Attorney for Defendant, Central Locating Service, Ltd. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW No. 03-1263 NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, Central Locating Service, Ltd., intends to serve the subpoena, identical to the one 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 will be served. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: 1~ ~--=- 1tene N. Megerian, E~ Attorney for Defendant, Central Locating Service, Ltd. Dated: September 17, 2003 " CCM-D-MEAL'IH OF PENNSYLVANIA a:xJNl'Y OF Clt1BERLAND BRITT P. McCARDLE V. .;l, NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. File No. 03-1263 SUBPOENA TO: Records Custodian for Jerome Ellis, M.D., Susquehanna Internal Medicine, 904 Campbell Street, Williamsport, PA 17701 1. You are ordered by the court to ccxre to 510 Walnut Street, Suite 1000, Penn Mutual Tower r at Phil;:tth"phi.q (Specify courtroan or other place) County, Pennsylvania, on October 12. 2003 at 10:00 o'clock, A. M., to testify on behalf of Defendant. Central Locatin2 Service. Ltd. in the above case, and to rem:rin until excused. 2. And bring with you the following: See attached Schedule "A" If you fail to attend or to produce the docurents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania ~ of Civil Procedure, including but not limited to costs, attoxney fees and inprisonnent. ISSUED BY A PARrY/COUNSEL IN CCMPLIAN:E WI'IH Pa.R.C.P. No. 234.2(a) NAME: Talene N. Meaerian. E~auire ADDRESS: 510 Walnut Street. Suite 1000 Philadelphia, PA 19106 TELEPHONE: (215) 627-0303 SUPREME COURT IO# 90526 BY THE COURT: mTE: ProtOOllOtary, Civil Division Seal of the Court Deputy OFFICIAL /'Dl'E: This fODll of subpoena shall be used whenever a subpoena is issuable, including hearings in cormection with depositions and before arbitrators, masters, carmissioners, etc. in conpliance with Pa.R.C.p'. No. 234.1. If a subpoena for production of docutents, records or things is desired, conplete paragraph 2. (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. , SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. CCMfJNWEALTH OF PENNSYLVANIA COUNlY OF Clt1BERLAND - BRITT P. McCARDLE .;\y v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, File No. 03-1263 LTD. SUBPOENA TO: Records Custodian for Lucille C. McLoughlin, M.D., Penn State Children's Hospital, 500 University Drive, Hershev, PA 17033 1. You are ordered by the court to come to 510 Walnut Street, Suite 1000 t Penn Mutual Tower Philadelphia (Specify courtroan or other place) County, Pennsylvania, on October 12, 2003 at at 10:00 o . clock, A. M.. to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to rem9.i.n until excused. 2. And bring with you the following: See attached Schedule "A". If you fail to attend or to produce the docunents or things required by this subPoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attomey fees and inprisoment. ISSUED BY A PARTY/COUNSEL IN <:a1PLIAN:E WITH Pa.R.C.P. No.. 234.2(a) NAME: Talene N. Megerian, Esquire ADDRESS: 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~: (215) 627-0303 SUPm1E COURl' 10# 90526 BY 'IHE COURl': DATE: Protoonotary, Civil Division Seal of the Court Deputy OFFICIAL 1Cl'E: This form of subpoena shall be used whenever a subpoena is isS\Ulble, including hearings in connection with depositions and before arbitrators, masters, comnissioners, etc. in coopliance with Pa.R.C.P'. No. 234.1.. If a subpoena for production of docu1ents, records or things is desired, c:onplete paragraph 2. , (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions ofthe accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. ~TH OF PENNSYLVANIA CCXJNl'Y OF ClM3ERLAND - BRITT P. McCARDLE .;h' v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. File No. 03-1263 SUBPOENA '10: R..cordR Cl1Rtodian for Christooher J. DeFlitch, M.D., FACEP, Penn.State Hershey Medical Center. 500 UniversitvDrive, Hershey, PA 17033 510 Walnut Street, Suite 1000 L You are ordered by the court to care to r Penn Mutual Tower (Specify courttoan or other place) County, Pennsylvania, onOctober 12, 2003 Philadelphia at at 10:00 o'clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to rem:rin until excused. 2. And bring with you the following: See attached Sehedule "An If you fail to attend or to produce the docurents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attomey fees and iJrprisoment. ISSUED BY A PARrY/COUNSEL IN CCt1PLIJ\OCE WITH Pa.R.C.P. No.. 234.2(a) NAME: Talene N. Megerian, Esquire ADDRESS, 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 '1'ELEPH:lNE : (215) 627-0303 SUPREME COURT IOiI 90526 BY THE COURT: OIl.TE: Protoonotary, Civil Division Seal of the Court Deputy OFFICIAL 00l'E: This fODll of subpoena shall be usedwbenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, comnissioners, etc. in conpliance with Pa.R.C.p. t-b. 234.1. If a subpoena for production of docI.Irents, records or things is desired, conplete paragraph 2. (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, docwnents or writing pertaining to the treatment of Britt McCardle without regard to date. " CCMONWEAL'1li OF PENNSYLVANIA CClUNI'Y or ClM3ERLAND BRITT P. McCARDLE .;\" v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. File N:l. 03-1263 SUBPOENA TO, Records Custodian for David C. Goodspeed, M.D., Penn State Hersh~yMedical Center, 500 University Drive, Hershey, PA 17033 1. You are ordered by the court to care to 510 Walnut Street, Suite 1000 t Penn Mutual Tower Philadelphia (Specify courtman or other place) County, Pennsylvania, on October . at 12, 2003 at 10,00 o'clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to remain until excused. 2. And bring with you the following, See attached Schedule "A" If you fail to attend or to produce the docunents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs. attOD1ey fees and :iJlprisonrent. ISSUED BY A PARrY/COUNSEL IN cc:M>LIAOCE WI'1li Pa.R.C.P. t-b. 234.2(a) NAME, Talene N. Megerian, Esquire ADDRESS, 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~NE, (215) 627-0303 SUPREME COURr IOiI 90526 BY THE COURr, DIl.TE : Prothonotary, Civil Division Seal of the Court Deputy OFFICIAL NC7l'E, This fonn of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, Il1!ISters, c:orrmi.ssioners, etc. in conpliance with Pa.R.C.P'. N:l. 234.1. If a subpoena for production of doc:uTents, records or things is desired, oonplete paragraph 2. , (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. " CCM-ONWEALTH OF PENNSYLVANIA CCXJNl'Y OF OM3ERLAND BRITT P. McCARDLE v. NICHOLAS HERST and CENTRAL LCOATING SERVICE, .;i.'.,, File No. O~-1?n3 LTD. SUBPOENA '10: Records Custodian for Andreas H. Meier, M.D., Penn State Children's Hospital, 500 University Drive, Hershey, PA 17033 510 Walnut Street, Suite 1000 L You are ordered by the =urt to care to Penn Mutual Tower t (Specify =urtroan or other place) County, Pennsylvania, on October 12, 2003 at Philadelphia at 10:00 o'clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to remain until excused. 2. And bring with you the following: See attached Schedule "A" If you fail to attend or to produce the ciocutents or things required by this subpoena, you may be subject to the sanctions autOOrized by Rule 234.5 of the Pennsylvania ~es of Civil Procedure, including but not limited to =sts, atto:mey fees and inprisoment. ISSUED BY A PARTY/COUNSEL IN CCMPLIAN:E WITH Pa.R.C.P. fob. 234.2(a) NAME: Talene N. Megerian, Esquire AODRESS:510 Walnut Street, Suite 1000 Philadelphia, PA 19106 TELEPHONE: (215) 627~0303 SUPRE}1E CClURI' 1D1t 90526 BY THE CClURI': DATE : ProtOOnotary, Civil Division Seal of the Court Deputy OFFICIAL 00l'E: This fom of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, conmissioners, etc. in COlIpliance with Pa.R.C.p'. No. 234.1. If a subpoena for production of doctrrents, records or things is desired, COlIplete paragraph 2. (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; phannacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. ~TH OF PENNSYLVANIA COONrY OF ClH3ERLAND BRITT P. McCARDLE v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, .:\.'!' LTD. File No. 03-1263 SUBPOENA TO: Records Custodian for Brendan C. Stack, Jr, M.D."FACS, Penn State Hetshey Medical Center. 500 University Drive, Hershey, PA 17033 1. You are ordered by the court to care to 510 Walnut Street, Suite 10000 t Penn Mutual Tower at Philadelphia (Specily courtroan or other place) County, Pennsylvania, on October 12, 2003 at 10:00 o'clock, A. M., to testily on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to remain until excused. 2. And bring with you the following: See attached Schedule "A" If you fail to attend or to produce the docurents or things required by this subpoena, you may be subject to the sanctions autlxlrized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not lirnited to costs, attorney fees and inprisoment. ISSUED BY A PARrY/COUNSEL IN CCMPLIANCE WITH Pa.R.C.P. No. 234.2(a) Talene N. Megerian, Esquire NAME: ADDRESS: 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~: (71,) ~77-n1n1 SUPREME COURl' 10# Qn,26 BY THE COURl': DATE: Protronotary, Civil Division Seal of the Court Deputy OFFICI1.L 1-OlE: This fODII of subpoena shall be used whenever a subpoena is issuable, including hearings in cormection with depositions and before arbitrators, masters, c:onmissioners, etc. in conpliance with Pa.R.C.P'. No. 234.1. If a subpoena for production of docurents, records or things is desired, conplete paragraph 2. , (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; phannacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. , ~'lli OF PENNSYLVANIA COUNl'Y OF Clf1BERLANO BRITT P. McCARDLE v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. .;1."- File No. 03-1263 : SUBPOENA TO: Rec rds Custodian for Jon E. Isaacson, M.D., Penn State Hershey Medical Center, 500 University Drive, Hershey, PA 17033 1. You are ordered by the court to come to 510 Walnut Street, Suite 1000, Penn Mutual Tower ~ at Philadelphia (Specify courtroan or other place) County, Pennsylvania, onOctober 12, 2003 at 10:00 o'clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to renain until excused. 2. And bring with you the following: See attached Schedule "A" If you fail to attend or to produce the docutents or things required by this subpoena, you may be subject to the sanctions autlx>rized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, inclucling but not limited to costs, attorney fees and iJrprlsomlent. ISSUED BY A PARrY/COUNSEL IN CCMPLIANCE WI'lli Pa.R.C.p. N:l. 234.2(a) NAME: Talene N. Megerian, Esquire ADDRESS: 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~NE: (?1~) 6?7-0303 SUPREME COUIn' 10# 90526 BY THE COURl': DATE: Protoonotary, Civil Division Seal. of the Court Deputy OFFICIAL NC7l'E: This foon of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, comnissioners, etc. in conpliance with Pa.R.C.p'. No. 234.1. If a subpoena for production of docunents, records or things is desired, ccnplete paragraph 2. (Rev. 1/90) SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; phannacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. " ~'IH OF PENNSYLVANIA CCXJNl'Y OF Clf1BERLANO BRITT P. McCARDLE v. NICHOLAS HERST and. CENTRAL LOCATING SERVICE, .;i.',> : LTD. File rob. 03-1263 SUBPOENA roo Custodian for Penn State Hershe Medical Center, 500 University Drive, Hershev. PA 17033 1. You are ordered by the court to come to 510 Walnut Street, Suite 1000, Penn Mutual Tower t at Philadelphia (Specify courtroan or other place) County, PeMsylvania, on October 12, 2003 at 10:00 o t clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to renain until excused. 2. And bring with you the following: See attached Schedule "AU If you fail to attend or to produce the docunents or things required by this subpOena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs. attorney fees and inprisoment. ISSUED BY A PARrY/COUNSEL IN C'a1PLIAN:::E WI'IH Pa.R.C.p. tb. 234.2(a) NAME: Talene N. Megerian, Esquire ADDRESS: 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~NE: (215) 627-0303 SUPREME COURl' lOll 90526 BY '!HE COURl': DATE: Prothonotary, Civil Division Seal of the Court Deputy OFFICIAL tOm: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, conmissioners, etc. in conpliance with Pa.R.C.p'. tb. 234.1. If a subpoena for production of docunents, records or things is desired, conplete paragraph 2. " (Rev. 1/90) . 'I . SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; phannacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. , ~TH OF PENNSYLVANIA COONl'Y OF ClH3ERLAND ., , BRITT P. McCARDLE ,;\' v. NICHOLAS HERST,'and CENTRAL LOCATING SERVICE,LTD. File No. 01-1263 SUBPOENA '10: Records Custodian for Dr. Kathleen Beaulieu, Occupational Therapy, Penn State Hershey Medical Center, 500 Univesity Drive, Hershey, PA 17033 1. You are ordered by the court to care to 510 Walnut Street, Suite 1000 t Penn Mutual Tower (Specify courtroan or other place) Co ty Penn l. October 12, 2003 un, , sy varua, on at Philadelphia at 10:00 o'clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to rerrai.n until excused. 2. And bring with you the following: See attached Schedule "A" If you fail to attend or to produce the docutents or things required by this subpoena, you may be subject to the sanctions autixlrized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attODley fees and inptisoment. ISSUED BY A PARTY/COUNSEL IN CCMPLIJ\OCE WITH Pa.R.C.P. No. 234.2(a) NAME: Talene N. Megerian, Esquire ADDRESS: 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 TELEPHONE: (215) 627-0303 SUPREME COURl' 10# 90526 BY THE COURl': DATE: Protoonotary, Civil Division Seal of the Court Deputy OFFICIAL N:71'E: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, IlBSters, COlmIissioners, etc. in COllpliance with Pa.R.C.P'. No. 234.1. If a subpoena for production of dc:lclrrents, records or things is desired, COllplete paragraph 2. " (Rev. 1/90) , " . SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. , " . C'CfoMJNWEALTH OF PENNSYLVANIA CCXJNl'Y OF C1.H3ERLAND BRITT P. McCARDLE .:b' v. NICHOLAS HERST and CENTARL LOCATING SERVICE, LTD. File tb. 03-1263 SUBPOENA TO. Records Custodian for J. Spence Reid, Penn State Hershey Medical Center, 1. You are ordered by the =urt to care to Orthopaedics Center, 500 University Drive, Hershey, PA 17033 510 Walnut Street, Suite 1000, t Penn Mutual Tower (Specify =urtman or other place) County, PeMsylvania, on October 12, 2003 at Philadelphia at 10:00 o ' clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to remain until excused. 2. And bring with you the following. See attached Schedule "A" If you fail to attend or to produce the docunents or things required by this subpoena, you may be subject to the sanctions autIDrized by Rule 234.5 of the PeMsylvania Rules of Civil Procedure, including but not limited to =sts, attorney fees and inprisoment. ISSUED BY A PARrY/COUNSEL IN cct-lPLIAra WITH Pa.R.C.P. tb.. 234.2(a) NAME. Talene N. Megerian, Esquire ADDRESS. 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~NE. (215) 627-0303 SUPREME COURl' IOiI 90526 BY THE COURl'. Prothonotaxy, Civil Division DATE. Seal of the Court Deputy OFFICIAL 00l'E. This fom of subpoena shall be used whenever a subpoena is isSUllble, including hearings in connection with depositions and before arbitrators, II115Sters, conmi.ssioners, etc. in coopliance with Pa.R.C.P'. tb. 234.1. If a subpoena for production of docutents, records or things is desired, cooplete paragraph 2. , (Rev. 1/90) .. . SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be nnderstood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; phannacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. , . . ~TH OF PENNSYLVANIA CCXJNl'Y OF Clt1BERLAND BRITT P. McCARDLE .:i.'" v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. File No. 03-1263 SUBPOENA 'IO: , r. t d" for WilliamsDort Hospital, 777 Rural Avenue, Williamsport, PA Rpt"'nYnl=: llR 0 1an ___ _ _ 17701 1. You are ordered by the court to come to 510 Walnut Street, Suite 1000, t Pf=mn Mutual Tower at Philadelphia (Specify courtroan or other place) County, Pennsylvania, on October 12, 2003 at 10:00 0' clock, A. M., to testify on behalf of Defendant, Central Locating Service, Ltd. in the above case, and to remain until excused. 2. And bring with you the fOllowing. See attached Schedule "A". If you fail. to attend or to produce the docurents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attomey fees and iJTpriSOlll1el1t. ISSUED BY A PARTY/COUNSEL IN CCMPLIANCE WITH Pa.R.C.P. No. 234.2(a) NAME. Talene N. Megerian, Esquire ADDRESS: 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 TELEPHONE. (215) 627-0303 SUPREME COURl' 10# 90526 BY THE COURl'. Prothonotary, Civil Division ~TE. Seal of the Court Deputy OFFICI1.L tarE. This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before axbitrl!ltors, masters, ccnmi.ssioners, etc. in carpliance with Pa.R.C.P'. lob. 234.1. If a s\Jbp:lena for prcduction of doc:urents, records or things is desired, carplete paragraph 2. , (Rev. 1/90) . . ~ . SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following docwnents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; phannacy records; toxicology records; therapy records; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, docwnents or writing pertaining to the treatment of Britt McCardle without regard to date. 0, . .. . .. a::tMJNWEALTH OF PENNSYLVANIA COONl'Y OF ClI1BERLAND BRITT P. McCARDLE .:\,;,. v. NICHOLAS HERST and CENTRAL LOCATING SERVICE, File No. 03-1263 LTD. SUBPOENA TO. llp~nT<'I" C""l'o<'l1"o for Fred G. Fedok. M.D.. Facial Surgery Center, 101 Erford Road, 1/101. C"mp Hill. PA 170ll L You are ordered by the court to care to 510 Walnut Street, SilitedOOO, t Ppnn,Mlltual Tower at Philadelphia (Specify courtroatl or other place) County, Pennsylvania, onOctober 12, 2003 10:00 0' clock, A. M., to testify on behalf of at Defendant, Central Lcoating Service, Ltd. in the above case, and to renain until excused. 2. And bring with you the following. See attached Schedule "A" If you fail to attend or to produce the docurents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania ~ of Civil Procedure, including but not limited to costs, attorney fees and iJrprisorrnent. ISSUED BY A PARrY/COUNSEL IN CCHPLIAOCE WITH Pa.R.C.P. No. 234.2(a) NAME. Talene N. Megerian, Esquire ADDRESS. 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 ~NE. (215) 627-0303 SUPREME COURl' lOll 90526 BY THE COURl'. Prothonotary, Civil Division DATE. Seal of the Court Deputy OFFICIAL torE. This foon of subpoena shall be usedwbenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, oonmi.ssioners, etc. in coapliance with Pa.R.C.P. No. 234.1. If a subpoena for production of doc:urents, records or things is desired, coaplete paragraph 2. (Rev. 1/90) . . .. ., SCHEDULE "A" AND BRING WITH YOU THE FOLLOWING: Penn State Hershey Medical Center is requested to produce any and all medical records involving Britt McCardle. Her date of birth is: 10/5/84; SS# is 183-68-8806. The request for any and all medical records pertaining to Britt McCardle should be understood to include, but not be limited to, the following documents: all descriptions of the accident and the accident scene, original x-ray films; x-ray reports; CT scan films; CT scan reports; radiographic films and reports; photographs; admission records; discharge summaries; reports of diagnosis; nurses' notes; physicians' notes; medication records; reports of treatment; progress notes; pharmacy records; toxicology records; therapy re.cords; bills or invoices for medical or rescue treatment or services; and any and all medical records, reports, documents or writing pertaining to the treatment of Britt McCardle without regard to date. , . - . (') C,) ~) c, , , I ---:1 .. , ," , n-i --1 -/ ::;-, , ->, .' (,' . r' CJ .., ,.... )0 c :.;? ~-) " Z -,-~ =<! ",J '.J -< PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in cup] icate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next ArgI.Inent Cwrt. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) BRITT P. MeCARDLE (Plaintiff) vs. NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. ( Defendant) No. 1263 Civil x n 2003 1. State matter to be argued (Le.. plaintiff's t1Dtion for new trial. defendant's demu=er to canplaint. etc.): Defendant's, Central Locating Service, Ltd., Motion for Summary Judgment 2. Identify counsel who will argue case: ( a) far plaintiff: l\ddress : Robert B. Elion, Esquire Elion, Wayne, Grieco, Carlucci, Shipman & Irwin 125 E. Third Street, Williamsport, PA 17701 (b) for defendant: Co-Defendant, Nicholas Herst Address: Thomas J. Williams, Esquire Basil A. DiSipio, Esquire Ten East High Street Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray Carlisle, PA 17013 510 Walnut Street, Suite 1000, Phila., PA 19106 3. I will notify all parties in writing within no days that this case has been listed for argurent. 4. ArgI.Inent Cwrt Date: Dated: February 2, 2004 /?-4~ Attorney far Central Locating Service, Ltd. ....... (') ..., <:=> 0 C <:=> 'TI i!: or" ~~ -., -l ", :c m:D :X. CD ~.~ ZC I ~..... t~ +" ~ <""' ""0 '1> 0- zr :x c -.C) >~ ~ 6m ~ ;g U1 ~ LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 510 Walnut Street -10th Floor Philadelphia, PA 19106 (215) 627-0303 Attorney for Defendant, Central Locating Service, Ltd. BRITT P, McCARDLE CUMBERLAND COUNTY COURT OF COMMON PLEAS v, NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD, CIVIL ACTION - LAW No. 03-1263 DEFENDANT'S. CENTRAL LOCATING SERVICE. L TD.. MOTION FOR SUMMARY JUDGMENT Defendant, Central Locating Service, Ltd. (hereinafter "CLS"), by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, hereby moves this Honorable Court, pursuant to Pennsylvania Rule of Civil Procedure 1035, for entry of summary judgment in its favor. In support thereof, CLS avers: 1. Plaintiff, Britt McCardle, commenced this lawsuit on March 21,2003 in the Cumberland County Court of Common Pleas. A true and correct copy of Plaintiffs Complaint is attached as Exhibit "A." 2, This lawsuit arises out of amotor vehicle accident that occurred on Saturday, August 3, 2002 at approximately 3:30 p,m, at Fairview Street in Cumberland County, Pennsylvania, 3. Plaintiff claims that co-defendant, Nicholas Herst, the driver ofthe vehicle, was negligent in that he breached his duty to plaintiff to operate his vehicle in a safe and prudent manner and consistent with the laws of the Commonwealth of Pennsylvania, thereby causing injury to plaintiff. See Exhibit "A", at ~~ 29,30 (a) - (f), 4, Plaintiff claims CLS is legally responsible for plaintiff's injuries and damages caused by co- defendant, Nicholas Herst, because at the time of the accident, Mr. Herst was a duly authorized agent, servant, and/or employee ofCLS, allegedly acting in the course and scope of his employment with CLS, See Exhibit "A" at ~ 33, 5. Alternatively, plaintiff alleges that CLS is legally responsible for plaintiff's injuries and damages caused by Mr, Herst because at the time of the accident, Mr. Herst allegedly had express and/or implied permission to operate the subject vehicle, which is owned by CLS. See Exhibit "A" at ~~ 37-38. 6. On August 3, 2002, according to Mr. Herst, plaintiff asked Mr. Herst for a ride to her sister's house in Selinsgrove, Pennsylvania. Mr. Herst agreed to give plaintiff a ride, but advised her he was not supposed to have non-employees in his CLS Company vehicle. Relevant portions of Nicholas Herst's deposition have been attached as Exhibit "B." 7, While driving on Fairview Street down a hill and making a left turn, Mr. Herst lost control of the car and they slid down over the bank and into a tree. 8. At the time of the accident, Mr. Herst was not on duty for CLS, 9. Mr. Herst was hired by CLS on or about July 15, 2002. 10. At the time of his hire, Mr. Herst was provided with a CLS Employee Handbook and accompanying documents, including a document entitled, "Use of a Company Vehicle Assigned to an Employee." That document states the "[ c ]ompany vehicle ... is to be used to travel to work in the morning, throughout the course of the day for business purposes and to drive to [one's] residence at the end of the day. Aside from on-call status, the Company vehicle is to remain parked at [one's] residence until the next working day," The document further states, "[ n ] on-employee passengers, with the exception of authorized - 2 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 Customer Representatives, are prohibited in Company owned or leased vehicles at all times, This includes family members, friends and the general public," A copy of the document entitled, "Use of Company Vehicle Assigned to an Employee" is attached as Exhibit "C." 11. Mr. Herst signed and read CLS' "Use of a Company Vehicle Assigned to an Employee" on July 15, 2002. 12. On October 12, 2002 and February 5,2003, Bill Bames conducted two recorded interviews of Nicholas Herst. Transcripts of the October 12, 2002 and February 5,2003 interviews are attached as Exhibit "D." 13. During his deposition on September 24,2003 and the two (2) recorded interviews, Mr. Herst admitted he was not working at the time of the accident. Mr. Herst testified: Q. Just so we're clear, on August 3 you weren't headed to any kind of a Central Locating job site or anything like that, correct? A No. See Exhibit "B" at page 85, lines 13-16 and Exhibit "D," 14. Mr. Herst also admitted during his deposition and interviews that he was aware of CLS' company policy regarding the use of the company vehicle. See Exhibits "B" and "D," 15, According to Mr. Herst's deposition testimony and interviews, he was fully aware that it was against company policy to drive the CLS company vehicle for non work-related purposes. He knew he was only to use his CLS company vehicle to get to and from work and throughout the day for business purposes. He also knew it was against company policy to have non-employee passengers in the company vehicle. Mr. Herst testified: - 3 - LAVIN, COLEMAN, O'NEIL. RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 Q, What was your understanding of the terms and conditions under which you were to use the vehicle for Central Locating? A. I was only to use it to get to and from work from my house and basically just to go from each spot and determine whether there were utilities underground. Q. Was that clear to you that those were the only conditions under which you would operate the motor vehicle? A. Yes. See Exhibit "B" at page 33, lines 1-12 and Exhibit "D." 16. Mr, Herst also testified that from his perspective, he was not acting within the course and scope of his employment at the time of the accident. Q. And from your perspective and your understanding were you acting in the course of your employment or were you doing something in the course of your employment at the time of this motor vehicle accident? A. No, I was not. See Exhibit "B" at page 43, lines 21-25; page 44, line 1. 17. For the reasons outlined below, plaintiffs claims against defendant, CLS, must fail, and defendant is entitled to swnmary judgment as a matter of law. 18. Plaintiff alleges Mr. Herst was an employee of CLS, acting within the course and scope of his employment at the time ofthe accident, and had express and/or implied permission to use the company vehicle at the time of the accident. Therefore, plaintiff alleges CLS is vicariously liable for Mr. Herst's negligence, - 4. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, P A 19106 (215) 627-0303 19. It is well settled that an employee's conduct is not within the scope and course of employment "if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the [employer]." Plavi v, Nemacolin Volunteer Fire Company, 1992 Pa. Commw. LEXIS 204, at *8 (Mar. 12, 1992), 20. In this case, it is clear, according to Mr. Herst's deposition testimony and interviews, that his conduct on August 3, 2002, was "different in kind from that authorized" by CLS, CLS authorized Mr. Herst to use the company vehicle to drive to and from work and throughout the day for business purposes only, CLS did not authorize him to drive his friends around. 21. The facts ofthis case establish Mr. Herst's conduct was far beyond the authorized time or space limits, He was driving his CLS truck on Saturday, while he was off-duty, for a non work-related purpose, 22, Mr. Herst's conduct was not actuated by a purpose to serve his employer. His conduct was actuated by a purpose to serve plaintiff. 23. Mr. Herst's actions were clearly against CLS company policy, 24. Mr. Herst was not acting within the course and scope of his employment with CLS at the time of the accident. 25. Mr. Herst did not have express or implied permission to operate the vehicle in the manner, for the purpose, or at the time ofthe subject accident. 26, For the foregoing reasons and for those set forth in the accompanying Memorandum of Law, CLS respectfully requests entry of summary judgment in its favor. - 5 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, P A 19106 (215) 627-0303 WHEREFORE, Central Locating Service, Ltd. respectfully requests this Honorable Court to grant summary judgment in its favor and enter an Order in the form annexed hereto, Respectfully submitted, LAVIN, COLEMAN, O'NEIL, RiCCI, FINARELLI & GRAY BY: Date: February 2, 2004 - 6- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLl & GRAY. ATIORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 ...... BRITT P. McCARDLE Sycamore Farm 2142 Sulphur Run Road Jersey Shore, PA 17740 Plaintiff : IN THq COU~T OF COMMON PLEAS OF : CUMBERLAND COUN11', PENNSYLVANIA : CIVIL ACTION - LAW vs. : JURY tRIAL DEMANDED i: : NO. 6.3 - J)J."J (}(c..>'J_~'-r~ NICHOLAS HERST 329 Walnut Street Reedsville, PA 17084 and CENTRAL LOCATING SERVICE, LTD., 401 East Louther Street, Suite 302 Carlisle, PA 17013 Defendantl! ,i%\C;'IZ;1/ 'w ,. aaAu" 100" Ii ~l r\. 1 '. _ J ~ NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this cotTiplaint and notice are served by entering a written appearance personally or by a~ attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgr;,em may be entered against you by the COllrt without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose..money or prbperty or other rights important to , you. YOU SHOULI) TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE CONTACT; Cutnberland County Bar Association 2 Uberty Avenue Carlisle, PA 17013 (717) 249-3166 (SOOI990-9108 ELlON, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. By (d- .. R~Elion, 1.0, #21030 Attorney for PI aimiff 1 25 East Third Street WilliamspOlt, PA 17701 (570) 326"2443 , i ,I TRUE COPY FROM. REQOAD il! 11\ T6lII.ImOnywhQj'50f.1 berB unto$6t.iny 1Ia~ I .w 1he ~of said ~ft at ca~ltl. PI, <c r-g;'7_~t!~~~ :...., BRITT P. McCARDLE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY. PENNSYLVANIA vs. : CIVIL ACTION - LAW NICHOlAS HERST and : JURY TRIAL DEMANDED CENTRAL LOCATING SERVICE, LTD., : Defendants : NO. COMPLAINT 1. Plaintiff, Britt P. McCardle, is an adult individual residing at Sycamore Farm, 2142 Sulphur Run Road, Jersey Shore, Clinton County, Pennsylvania 17740. 2. It is believed and therefore averred that Defendant Central Locating Service, Ltd. is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with an office and principal place of business located at 401 East Louther Street, Suite 302, Carlisle, Cumberland County, Pennsylvania, and doin'g business in the Commonwealth of Pennsylvania. 3. Defendant Nicholas Herst is an adult individual residing at 329 Walnut Street, Reedsville, Mifflin County, Pennsylvania. 4. It is believed and therefore averred that Defendant Nicholas Herst resides with his parents, Mr. and Mrs. Lawrence Herst, at the aforementioned address. 5. On August 3, 2002, at approximately 3:30 p.m., Plaintiff Britt P. McCardle was a right front seat passenger in a 1997 Chevrolet pick-up truck operated by Defendant Nicholas Herst. " 'I . 6. On August 3, 2003, at approximately 3:30 p.m., Defendant Nicholas Herst was operating the aforementioned vehicle south - bound on Fairview Street in South Middleton Township, Cumberland County, Pennsylvania. 7. On August 3, 2003, at approximately 3:30 p.m., it was daylight, there were no adverse weather conditions, and the road surface was dry. 8. Fairview Street is a two-lane, two-way road between Routes 841 and 74. 9. Thfl asphalt pavement is marked with white edge lines and double yellow mfldian lines on Fairview Street in the aforementioned area. 10. On August 3, 2003, at approximately 3:30 p.m., Defendant Nicholas Herst lost control of the vehicle hI>. was drivin9, which left the roadway on the right side, traveled down an embankment, and struck a tree head-on. 11. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst was an agent, servant, and/or employee of Defendant Central Locating Service, Ltd., acting in the course and scope of his employment with Defendant Central Locating Service, Ltd., and in the furtherance of the business interests of Defendant Central Locating Service, Ltd. I I II I j , I I II 12. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, the vehicle that Defendant Herst was operating on August 3, 2003 was owned by Defendant Central Locating Service, Ltd. 2 I' 13. At the time of the motor vehicle accident that Is the subject of this law suit, and at all times relating thereto, Defendant Central Locating Service, Ltd. had entrusted the use of the subject vehicle to Defendant Nicholas Herst. 14. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Central Locating Service, Ltd. was vicariously responsible for the actions of Defendant Nicholas Herst. 15. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst had express permission to drive the subject vehicle owned by Central Locating Service, Ltd. , 16. At the time of the motor vehicle accident that is the subject of this law suit. and at all times relating thereto, Defendant Nicholas Herst had implied permission to drive the subject vehicle owned by Central Locating Service. Ltd. 17. At the time of the motor vehicle accident that is the subject of this law suit, and at all times relating thereto, Plaintiff Britt McCardle had express and/or implied permission .to be a passenger in said vehicle. 18. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle sustained at least the following injuries: a) b) c) d) e) f) g) hI fracture of the right zygoma; fracture of the right frontal zygomatic suture; fracture of the inferior orbital rim; displaced blowout fracture of the right inforior floor of the orbit; fracture of the right lateral buttress; displaced bilateral nasal fractures; right lateral maxillary sinus fracture; deviation of the nasal fracture to the left; I I i I I 3 i) right lateral maxillary sinus buckling; j} fluid in the sinus; k} hematoma on the inferior orbital floor; Il extraoQular hemorrhage; m} pneuma-orbit and soft tissue swelling about the orbit; nJ comminuted open left ankle fracture of the talar neck; 0) dislocation of left ankle talus; p) left ankle peroneal tendon dislocation; q) left ankle lateral collateral ligament tear; r} sclerosis of the left proximal pole; s) bony fragments adjacent to the inferior aspect of the left medial malleolus; t} closed right ankle fracture of the medial malleolus; u) comminuted closed right wrist intra-articular fracture of the distal radius; v} right second and third metacarpal fractun..s; w} ulnar styloid fracture; xl right pneumothorax; vI muscle spasm; z} whiplash injury; aa} closed head injury; bb} rib fractures; ce) permanent disfigurement and scarring; and dd) permanent disability. 19. As a result of the aforementioned motor vehicle accident, Plaintiff Btitt P. McCardle's injuries required: a} in flight closed reduction of the left ankle while en route via helicopter due to ischemic left lower leg; blood transfusion; intubation and respiration; open reduction internal fixation of the inferior fraGture; placement of screws in the inferior zygomaticomaxillary process, the frontal zygomatir:omatic process and the anterior wall of the maxillary sinus on the right side; open Medipore (alloplast) implant of the orbital floor blowout fracture; closed reduction of the nasal fracture that was known not to be the final definitive procedure; b) c) d} e) f) g) I I I I I I' II 4 h) closed reconstructive septa rhinoplasty with osteotomies, narrowing of the dorsum and tip with strip and suturing; i) open irrigation and debridement of the left hindfoot; j) open reduction of the left ankle talus; k) internal fixation of the left ankle talus with three fully threaded screws transfixing the talar neck fracture; I) open reduction of the right medial malleoli; m) internal fIxation of the right medial malleoli with two fully threaded screws transfixing the medial malleolus; n) open reduction of the right distal radius; 0) internal fixation of the right distal radius with malleable plate and multiple screws transfixing the fracture through the distal radius; pl reiocation of the peroneal tendon; q) repair of the retinaculum; and r) repair of the lateral collateral ligament. 20. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has incurred past and future medical expenses in eXCElSS of amounts recoverable pursuant to the Motor Vehicle Financial Responsibility Law, 75 Pa,G.S.A. ~1711 etseq. 21. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has incurred past and future income loss in excess of amounts recoverable pursuant to the Motor Vehicle Financial Responsibility Lawi 75 Pa,C,S.A. ~1711 et seq. 22. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has sustained permanent disability resulting in past and future diminished earnings and earnings capacity. 23. As a result of the aforementioned motor vehicle accident, Plaintiff Britt p, McCardle has sustained permanent disfigurement. 5 24. As a result of the aforementioned motor vehicle accident, Plaintiff 6ritt P. McCardle has sustained significant past and future physical pain and emotional suffering. 25. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has suffered in the past and continues to experience a marked diminution in her ability to enjoy fife and life's pleasures. 26. As a result of the aforementioned motor vehicle accident, Plaintiff Britt P. McCardle has suffered and continues to experlenceembarrassment alid humiliation. COUNT I - NEGLIGENCE Britt P. McCardle vs. Defendant Nicholas Herst 27. Paragraphs 1 - 26 inclusive of Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 28. Defendant Nicholas Herst owed a legal duty unto Plaintiff Britt P. McCardle to operate his vehicle in a safe and prudent manner, and Defendant Nicholas Herst breached this legal duty. 29. Defendant Nicholas Herst owed a legal duty unto Plaintiff Britt P. McCardle to operate his vehicle consistent with the laws of the Commonwealth of ! ! j, 'I II I, I I , I Pennsylvania, and Defendant Nicholas Herst breached this legal duty. 30. Defendant Nicholas Herst was negligent as a matter of law in that he: a) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. 93309 by leaving the lane of travel that he occupied; 6 i I I \1 b) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. s3714 by driving a vehicle in careless disregard for the safety of persons in his vehicle; c) failed to keep the vehicle he was operating under control; d) collided with a tree; e) failed to take evasive action to avoid the collision with the tree; f) was inattentive to surrounding circumstances while driving on Fairvlew Street. 31. Plaintiff Britt P. McCardle sustained the aforementioned injuries and damages as a direct, proximate, and/or substantial result of the negligence of the I Defendant Nicholaslierst. WHEREFORE, Plaintiff Britt P. McCardle demands judgment against Defendant Nicholas Herst in an amount in excess of the requiremehts for compulsory arbitratioh. COUNT II - AGENCY Britt P. McCardle vs. Central LacatinClService.. ltd. 32. Paragraphs 1 - 31 inclusive of Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 33. Defendant Central Locating Service, Ltd. is legally responsible for all injuries and damages caused by Defendant Nicholas Herst, based upon the fact that at the time of the accident that is the subject of this law suit, Defendant Nicholas Herst was a duly authorized agent, servant, and/or employee of Defendant Central Locating Service, Ltci., acting in the course and scope of his employment with Central Locating Service, Ltd., and in the furtherance of the businoss Interests of Central Locating Service, Ltd. 7 34. By and through the actions of Defendant Nicholas Herst, Defendant Central Locating Service, Ltd. was negligent as a matter of law in that Defendant Nicholas Herst: a) violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~3309 by leaving the lane of travel that he occupied; violated the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~ ~3714 by driving a vehicle in careless disregard for the safety of persons in his vehicle; failed to keep the vehicle he was operating under control; collided with a tree; failed to take evasive action to avoid the collision with the trEJe; , was inattentive to surrounding circumstances while driving on Fairview Street. b) c) d) e) f) 35. Plaintiff Britt P. McCardle sustained the aforementioned injuries and damages as a direct, proximate, and/or substantial result of the negligence of Defendant Central Locating Service, Ltd., by and throllgh the actions of its duly authorized agent, servant, and/or employee, Defendant NIcholas HEJrst. WHEREFORE, Plaintiff Britt P. McCardle demands judgment ag.ainst Defendant Central Locating Service, Ltd. in an amount in excess of the requirements for compulsory arbitration. I I I I i I I I i I I 1\ COUNT III - VICARIOUS. LIABILITY Britt P. McCardle vs. Central Locatina Service. Ltd. 36. Paragraphs 1 735 inclusive of Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 37. Defendant Central locating Service, Ltd. is IEJgally responsible for all injuries and damages caused by Defendant Nicholas Herst, based upon the fact that 8 at the time of the accident that is the subject of this law suit, and at all times relating thereto, Defendant Nicholas Herst had express permission to drive the subject vehicle owned by Central Locating Service, Ltd. 38. Defendant Central Locating Service, Ltd. is legally responsible for all injuries and damages caused by Defendant Nicholas Herst, based upon the fact that at the time of the accident that Is the subject of this law suit/and at all times relating thereto, Defendant Nicholas Herst had implied permission to drive the subject vehicle owned by Central Locating Service, Ltd. 39. By and through the actions of Defendant Nicholas Herst, Defendant Central Locating Service, Ltd. was negligent as a matter of law in that Defendant Nicholas Herst: a) violated the Pehnsylvania Motor Vehicle Code, 75 Pa.C.S.A. ~3309 by leaving the lane of travel that he occupied; bl violated the Pennsylvania Motor Vehicle Code, 75Pa.C.S.A. ~ ~3714 by driving a vehicle in careless disregard for the safety of persons in his vehicle; , c) failed to keep tho vehicle he was operating under control; d) collided with a tree; e) failed to take evasive action to avoid the collision with the tree; f) was inattentive to surrounding circumstances while driving on Fairview Street. 40. Plaintiff Britt P. McCardle sustained the aforementioned injuries and damages as a direct, proximate, and/or substantial result of the negligence of Defendant Central Locating Service, Ltd., by and through the vicarious liability of Defendant Central Locating Service, Ltd. to Defendant Nicholas Herst. 9 I i: WHEREFORE, Plaintiff Britt P. McCardle demands judgment against Defendant Central Lo'cating Service, Ltd. in an amount in excess of the requirements for compulsory arbitration. ELlON, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. By ~- Robert B. Elion, 1.0. #21030 Attorney for Plaintiff 1 25 East Third Street Williamsport, PA 11701 (570) 326-2443 10 ...' .'",. ....- VERIFICATION l verify thot the facts set forth 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. Section 4904, relating to unsworn falsification to authorities. I -PP.c(I~42OM- rItt P. McCardle Dated: 3 )/9.}D3 I I 'I I I I I I I I II ~@\f?>W '(/' BRITT P. MCCARDLE, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 03-1263 NICHOLAS HERST AND CENTRAL LOCATING SERVICE, LTD., Defendants. JURY TRIAL DEMANDED Deposition of: NICHOLAS HERST Taken by: Plaintiff Before: Jan L. Bucher Court Reporter-Notary " Date: Wednesday, September 24, 2003 at 10:30 a.m. Place: Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, Pennsylvania APPEARANCES: ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN BY: ROBERT B. ELION, ESQUIRE FOR - PLAINTIFF MARTSON, DEARDORFF, WILLIAMS & OTTO BY: THOMAS J. WILLIAMS, ESQUIRE FOR - DEFENDANT NICHOLAS HERST j\>,' 'I; I( " 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q What was your understanding of the terms and conditions under which you were to use the vehicle for Central Locating? A I was only to use it to get to and from work from my house and basically just to go from each spot and determine whether there were utilities underground. Q Was that clear to you that those were the only conditions under which you would operate the motor vehicle? MR. DISIPIO: Objection to form. Go ahead. You can answer. THE DEPONENT: Yes. BY MR. ELION: Q At the time of this -- immediately preceding this motor vehicle -- well, let me just ask you this. Approximately what time of day did this accident take place? A I believe it was around 3:00, 3:30. Q In the afternoon? A Yes. Q Where were you going? Where were you coming from? Let me put it that way. A I was coming from my cousin's house. Q That would be Andrea Peters? A Yes. 43 1 2 3 4 A I don't know. Q Let me see if I can go through the interrogatories quickly. By whom were you employed at the time of this motor vehicle accident? Central Locating Service. And were you terminated from employment there? Yes. And do you recall when you were terminated? Don't remember specific day. Approximately how long after the motor vehicle 5 A 6 Q 7 A 8 Q 9 A 10 Q 11 accident? 12 A 13 Q Within a week. What's your understanding of the reasons why 14 you were terminated? 15 A Failure to follow rules. 16 Q And specifically what rules did you fail to 17 follow from your understanding? 18 A I had someone in the car other than someone who 19 worked at Central Locating Service and I was using it when 20 I wasn't supposed to. 21 Q And from your perspective and your 22 understanding were you acting in the course of your 23 employment or were you doing something in the course of 24 your employment at the time of this motor vehicle 25 accident? . 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, I was not. Q Did anyone from Central Locating ever tell you that it was acceptable under certain circumstances to transport someone in the vehicle who was not an employee? A I believe at one point it was said, like, if it was a life and death situation or something. Q Do you know who actually owned the motor vehicle that you were driving? A No, I don't. Q At any time before this motor vehicle accident had Britt McCardle ever been in this vehicle? A I don't think so. Q Did you have more than one vehicle assigned to you or for the entire course of your employment with Central Locating did you have one vehicle? A One vehicle. Q When you were at your cousin Andrea Peters' before this incident which took place on a Saturday, I believe, correct A Yes. Q -- had you ever transported Britt McCardle in that vehicle before this accident? A Not to my remembering. Q Have you ever transported anyone in that vehicle other than Britt McCardle or an employee of 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Locating Service vehicle? MR. WILLIAMS: Do you mean whether he had permission to do that, to allow a passenger MR. ELION: Let me rephrase it. BY MR. ELION: Q At any point before this motor vehicle accident do you have a specific recollection of communicating with Britt McCardle informing her that she was not permitted to be in that vehicle? A Yes. Q When did you have that communication with her? A I don't remember. Q Where were you when you had that communication? A I don't remember. Q What did you say to her? A I don't remember. Q What is your understanding of the concept of liability coverage? If a person has liability coverage, what does that mean to you? A That if they were to get into an accident the insurance company would pay for the other guy's stuff but not his own. Q Is that your understanding of liability? A Yes. (N. Herst Deposition Exhibit No.2 was marked.) 85 1 A No, not that I remember. 2 Q About how long did you have that vehicle 3 assigned to you? 4 A It was within a week or two. 5 Q Within that week or two do you recall any 6 problems with the vehicle? 7 A Not that I remember. 8 Q It's my understanding from what you told us 9 today that you were aware of the Central Locating policy 10 that that vehicle was to be used only for in conjunction 11 with your employment, correct? 12 A Yes. 13 Q Just so we're clear, on August 3 you weren't 14 15 16 17 18 19 20 21 22 23 24 25 headed to any kind of a Central Locating job site or anything like that, correct? A No. Q Now, I'm going to mark, sir, three documents as Herst 5, 6, and 7. And then I want to ask you some questions. (N. Herst Deposition Exhibit Nos. 5, 6, and 7 were marked.) BY MR. DISIPIO: Q If you don't mind and Counsel doesn't mind, I'm just going to stand to your right. Let's start with Exhibit 5. Can we agree that that is an employee handbook 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 87 A Q A I made the choice to drive it home. That's Choice No. I? Yes. Q Again, is that your signature? A Yes. Q And Choice No.1, it's my understanding that you understood that you were to drive it to and from work? A Yes. Q You were not to put anyone in the vehicle other than a CLS employee, correct? A Yes. Q And that on weekends it was to sit idle? A Yes. Q And unless you were headed to some sort of emergency on the weekends, you weren't to use the vehicle, correct? A Yes. Q Let me show you Exhibit 7, sir. Again, that's a document entitled Use of Company Vehicle Assigned to an Employee. Is that your signature, sir? A Yes. Q Can we agree that 7 is an overview of what we just discussed, that the vehicle was to be used only for business for CLS? A Yes. '1'./ .". ' USE OF COMPANY VEBICLE ASSIGNED TO AN EMPLOYEE You have ~ assI.pd a Company vehicle for your use to perfonn your job while on Company time. AssigTI~t of a Company vebicle is a privilege I!IId DOt a Dgbr or a guaranteed benefit of your job. The COIIlpany resetVeS the right to zevoJce the ~m<w of a vebioJ.e tJD/iJ/or your d:rivmg privileges at any time and for any ~ wi1hout prior notice. The Company vehicle assigDed to you is to be used to travel to WOIk in the mou.DDg. throughout the C:OllrSe of the day for bu.""tess purposes aDd to drive to your resldeDce 81; the eIId ot the day. Aside from olK8ll SUlJDS, lb.e ~ vehicle Is to remain parted 111 your resideace 1lDIil the Ilext woIkiDs day. While! on~ you are ~~~ to respond to a Ioc:are request In a timely rDa:lIner as required by YOW" Manager. The C""'IpaDy vebkle is to remain ~ at yoar ,....;~ IIIlIiI such D.me that you may be ~eQ our to petfun.q your job. In the event that you elect to speod your on-caI.I time 111 a locadO.l1 other than your l'CSicleoce. you may do 50 as long as you do llOt travel beyOQd a reasouable distanc:e &om your residence. Keep in miud that you must be able to respon.d in a timely fnh""" to aJllo< ,,11.'8 requem. . Non-emp}oyee ~gllXS, wiIh the exception of authori2:ed Cnct.)~t R..fA s-'tJotl:ves, Bre pmbibiloi in Compauy owned or leased vabicles at all' times. 'l'bm iacIudes 1imi1y membezs, frieo.ds anQ the genc:ral publil;. _ The cmly individuals 'IIVbo mq opl:ate or ride In a COIDp8I'lY owned or leased vehicle 818 IWthorized employees of CLS aad Aspluodh 8Dd emhorized CustoDw &J"'-" ..'IrM:s. All others are strictly prohibited at all1imes. AdditionaUy, the trar!SportatiO.l1 of weapoas, alcohoJic: bevaages or illegal drugs within a Company vehicle is smctly prohibited and cause for cfis<ip1iDe up to and hIc1udiDg imm""~ M. ...ll'dtlon of employment. It1 the ~t that you vioJale this policy aod your acUooS result in costs (either legal, qaUn or other) incutred by AspluDdh Tree &pen C'mpaay or its subsidiaries. the ('~ 'WiD. use all avaUable legal meaDs to JeCOVCZ'sud1 COSt from you pe.rBODaUy. . My sigDature below ;"lti~ that I have read and 8gRle to the temIs stated abovs. I will not USe a vehicle owned or leased by A$p1mdh Tree Expect Co. or any of it$sub$i4iaries 1br pamnaI bnci"e5S or pleasure outside of approved 1ISe. In tbc event that I violate rhis po1icy, I qree to be subject to discipline up to and inc1udiD& possible i"'m""'iM~ t_nm;nn ofmy em,ploymem. I!J~ jAeJ Employee sigrt....lle . Iv :(J ~f(~\ Employee's Pril1tlld Name ~ 'Uc.. Persoaoel File Dale Piled , . Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of Interview: 10/12/2002 Page I [SP] = Spelling [SS] = Speaking Simultaneously [TO] = Tape Damage Q: A: Q: 2 3 4 5 6 A: 7 8 Q: 9 10 A: 11 12 Q: 13 14 A: 15 16 Q: 17 18 A: 19 20 Q: 21 22 A: 23 24 Q: 25 26 A: 27 28 Q: 29 30 A: 31 32 Q: 33 34 A: 35 36 Q: 37 38 A: Bill Barnes Nicholas Herst This is Bill Barnes speaking. I'm calling from State College, Pennsylvania. Today's date is October 12th, 2002. And it's approximately 4:48 p.rn. I'm speaking with Nicholas Herst regarding an accident that occurred on August 3rd, 2002. Mr. Herst, could please state your full name and spell your last name? Nicholas Lawrence Herst, H-E-R-S-T. And is this recording being made with your full knowledge and consent? Yes. OK. For identification purposes what is your Social Security Number? 205-62-2988. Your date of birth? 4/6/80. And your address? 329 East Walnut Street, Reedsville, P A, 17084. OK. And, uh, what type of vehicle were you driving at the time ofthe accident? It was a Chevy truck, I'm not exactly sure of the make. OK. Who is the owner of the vehicle? It was owned by Central Locating Service. Is that your employer? Yeah, that was ( ). OK. Vb, do you have any passengers in the vehicle? Yes, there was one passenger, urn, Brit McCardle. Allegis lnvoiceID: 295489 ,. \ < iJUU1.J..' Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of Interview: 10/12/2002 Page 2 [SP] = Spelling [SS] = Speaking Simultaneously [ID] = Tape Damage 39 40 Q: 41 42 A: 43 44 Q: 45 46 A: 47 48 Q: 49 50 A: 51 52 Q: 53 54 A: 55 56 57 Q: 58 59 A: 60 61 62 Q: 63 64 A: 65 66 Q: 67 68 A: 69 70 Q: 71 72 A: 73 74 75 Q: 76 77 A: 78 79 80 Brit McCardle? Yeah. OK. B-R-I-T, M-C-C-A-R-D-L-E. OK. And do you know Brit's phone number is? I still haven't gotten that yet. OK. Does Brit-- I'm sorry? I'm gonna go ahead and write down all the things that ( you. ) make sure I got 'em for OK. Did you work with Brit? No, no, she was a friend I was taking the truck to my uncle's house, dropping the truck off there and I was going to give her a ride to her sister's house. OK. Was the, uh, when the accident occurred were you on the clock working? No, I was not. OK. So who, do they give your regular use of the vehicle. . . No. . . . in off hours? No. Whenever, whenever Brit had actually called me I had explained to her how I'm not supposed to have anybody in the vehicle. Yeah. It's company policy. And so I explained to her that, you know what I mean, basically I explained to her that how there would be no coverage through my company because I wasn't supposed to have anybody in the vehicle. And I asked her if she would want me just to run the truck, run the truck up, that's ( ) run the truck up to my uncle's Allegis InvoicelD: 205489 I.J (} u u\.'l Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of interview: 10/12/2002 Page 4 [SP] = Spelling [SS] = Speaking Simultaneously [ID] = Tape Damage 123 Q: 124 125 A: 126 127 128 Q: 129 130 A: 131 132 133 Q: 134 t35 A: 136 137 138 139 140 t41 Q: 142 143 A: 144 145 Q: 146 147 A: 148 149 Q: 150 151 A: 152 153 Q: 154 155 A: 156 157 Q: 158 159 A: 160 161 Q: 162 163 A: 164 OK. And, uh, did they issue any tickets at all? Urn, they, yeah, they issued it for reckless driving but I actual pled not guilty and have to go to court to fight that. OK. Urn, were there any witness that is came forward from outside the vehicle? No, not to my knowledge. Urn, to my knowledge there wasn't anybody there right when it happened but people had showed up like shortly thereafter. OK. And, uh, was anybody injured at all? Yeah. I had had, urn, slight lacerations to my elbow and, uh, they took me into the hospital just to give me x-rays and to make sure nothing was broken, which it turns out that was all that was wrong and she, I believe, had two broken ankles and some sort of fracture ofthe face. She wasn't wearing her seat belt. When we hit, she kind of slid underneath the dash. OK. Were you wearing your seat belt as well or no? I was, yeah. OK. She was, which hospital were you taken to? I was taken to, urn, wait, can you hold on one second, let me grab a paper. OK. [pause] It was the Holy Spirit Hospital. You were taken to Holy Spirit? Yeah. ( ). And do you know where Brit was taken? I believe she was taken to Geisinger. Where's that located? Uh, Danville. Allegis lnvoiceID: 205489 ( UU I JU _" Recorded Interview of: Nicholas Berst Claim No.: 028998228 DateOfmterView: 10/1212002 Page 5 [SP] = Spelling [S8] = Speaking Simultaneously [1D] = Tape Damage 165 Q: 166 167 A: 168 169 170 Q: 171 172 A: 173 174 175 176 Q: \77 178 A: 179 180 Q: 181 182 A: 183 184 Q: 185 186 A: 187 188 Q: 189 190 A: 191 192 Q: 193 194 A: 195 196 197 Q: 198 199 200 A: 201 202 Q: 203 204 A: 205 206 Q: OK Was she flown by helicopter? I'm not exactly sure because I was taken away before she was and I haven't really talked to her since the accident. OK And, uh, is there anything else you'd like to add regarding what happened? 1bat's pretty much it for the most part. Like I'd said, like her lawyer had contacted me to try and contact my personal insurance company. And, uh, I didn't really realize I even had to file with my insurance company. OK Urn, so I don't know if I should, if you want that phone number right now or . . . Uh, we'll get to that in just a minute. All right. This Brit, you said you guys haven't talked? Yeah. You were friends, though, prior to this right? Yeah. Did anything happen to cause you to not talk to each other anymore? I don't know, she was just upset because I hadn't like called her right away after the thing had happened. OK All right. Let me go ahead and close out the statement. Urn, have you understood the questions I've asked? Yeah. And your answers been true and correct to the best of your knowledge? Yeah. May I have your permission to turn off the recorder? AIlegis'InvoiceID: 205489 ;j U U U .1 f) Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of Interview: 10/1212002 Page 6 [SP] = Spelling [SS] = Speaking Simultaneously [TO] = Tape Damage 207 208 A: Yes. 209 210 Q: OK. A1legig InvoiceID: 205U489. U \ i IJ 'U " . . Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date OfJnterview: 2/512003 Page I Q: A: 1 Q: 2 3 4 S 6 A: 7 8 Q: 9 to A: 11 12 Q: 13 14 A:. IS 16 Q: 17 18 A:. 19 20 Q: 21 22 A: 23 '24 Q: 2S 26 27 A: 28 29 Q: 30 31 32 A: 33 34 Q: 35 36 A: 37 38 Q: [SP] = Spelling [SS] = Speaking Simultaneously [TD]= TapeDamage Bill Barnes Nicholas Herst This is Bill Barnes speaking. I'm calling from State College, Pennsylvania. Today's date is February 5th, 2003. It's approximately 6:40 p.rn. I'm speaking with Nicholas Herst concerning an accident that OCCUlTed on August 3rd, 2002. Mr. Herst, bowled you please state your full name and spell your last? . Nicholas Lawrence Herst, H-E-R-S- T. OK And is this recOrding being made with your full knowledge and consent? Yes. OK And for identification purposes, Nick, what is your Social Security Number? It's 205-62-2988. Your date of birth? 04/06/1980. And your address? 329 East Walnut Street, Reedsville,PA, 17084. OK And do you recall if that date is correct as far as the date of this accident that we talked about...August 3rd? . Yeah, yeah. OK And from the information that I hav~ the vehicle that you were traveling in, uh, it was a pickup truck, a Chevy, 98 Chevy pickup truck; is that correct? Yes. And who is the owner of that vehicle? It was, I'm not sure specific...it was Central Locating Services company vehicle. And that's your employer...at the time? ;) UU U !)i) Allegis InvoieeID: 205490 Recorded Interview of: Nicholas Herst Claim No.: 028998228 . Date Of Intecview: 2/512003 Page 2 39 40 A: 41 42 Q: 43 44 45 A: 46 47 48 49 50 51 Q: 52 53 54 55 A: 56 57 58 Q: 59 60 A: 61 62 63 64 Q: 6S 66 A: 67 68 Q: 69 70 A: 71 72 73 74 Q: 75 76 A: 77 78 Q: 79 80 A: [SP] = Spelling [SS] = Speaking Simultaneously [TD]= Tape Damage Yes. OK. Db, now, as far as use of the vehicle, uh, were there any specifics given to you as far as what you could or could not do with that? Basically just, basically drive to work and back to wherever I was staying and then use while I was working. And there were to be no other passengers other than me or, I believe you could have other employees in there but I, I'm not sure if that was specified specifically by them but I know that there were times where I drove around with other employees but nobody other than employees in the car. OK. All right. And did they give you, uh, was that verbal, was there an employee handbook or anything like that that they gave you or was there a contract that you had to sign? I'm sure there probably was but I don't specifically, you know what I mean, I don't specifically remember. . Yeah. But it is policy so I'm sure that it was, you know what I mean, there was a whole bunch of papers that I filled out during orientation so I'm sure that that was probably on there somewhere. OK. And when did you start working there, do you recall? Itwas... Timeframe? . . . it was probably, I worked there about three weeks, so I'd say probably, well, it was probably three or four weeks so it had to have been like the first week or two in July. I don't remember a specific date or anything. July of2002? Yes, yes. And, all right. Now, where is the company out of:! It was, um, the office that I worked out of was based out of Carlisle. AIlegis JnvoiceID: 205490 'JUUUU I Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of Interview: 215(1.003 Page 3 [SP] = Spelling [SS] = Speaking Simultaneously [TO] = Tape Damage 81 82 Q: 83 M A: 85 86 Q: 87 88 A: 89 90 Q: 91 92 A: 93 94 95 96 97 98 99 100 101 Q: 102 103 A: 104 105 106 107 108 109 110 Q: 111 112 A: 113 114 Q: 115 116 A: 117 118 Q: 119 120 A: 121 t22 OK. It's was on Logger [sounds like] Street in Carlisle. OK. Now, according to this accident that happened on the 3rd. . . Uhhuh. .., can you just give me a brief overview of the scenario of what did happen? Allright. I was, I was at, I stayed at my, my cousin's house in, uh, it's on Derry Street in Harrisburg. And Saturday morning, I'd gotten a call from Brit McCardle 8l\d she had wanted a ride to her sister's house in Selinsgrove and at that time I'd only had the truck and so I went ahead and I explained to her the whole scenario behind the truck, I couldn't drive it and stuff like that. But she was right around where I was and what I was gonna do is drop the truck off at my uncle's house, which is in Carlisle, which is only about a mile or two away from where the office is. And so I picked her up and we were on our way to my uncle's house. I got off on the exit on High Street . . . Yeah. . . . and took a left and then took a first right at the red light. And as we were going around the turn the front right tire had come off the road onto the, I don't know if that's called like a berm or whatever, there was like about a foot of gravel before the embankment and because I was going around a turn it didn't grip and it slid off over the side of the emrn,nhnent. And we went down, it's probably about a 6 foot embankment about 45-degree angle. Yeah. We slid down that and had run into a tree. OK.Um, and, I'm sorry, where did this happen? It was, urn, you get o~ if you're conrlng from Harrisburg going towards Carlisle. . . Yeah. . . . south on 81, you get off on the High Street exit and then at the end of the exit you take a left and, uh, you come to a, like first red light, I can't, I'm not exactly sure what that, what that road's called, but it's the first red light you come to, you take a right there. AIIegis InvoiceID: 205490 :JUUUtJ8 Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of Interview: 2/512003 Page 4 123 And then you go up over a hill and it kind of levels out and then it kind of dips down and 124 curves to the left and right there is where it happened. 125 126 Q: 127 128 A: 129 130 Q: 131 132 133 A: t34 135 Q: 36 137 A: 138 139 Q: 140 141 A: 142 143 144 145 146 Q: 147 148 A: 149 '50 151 Q: 152 153 A: 154 155 156 157 Q: 158 159 A: 160 161 Q: 162 163 A: 164 [SP] = Spelling [SS] = Speaking Simultaneously [TD]= Tape Damage So that, was that what you would consider Harrisburg or no? No, that's Carlisle. Carlisle, OK I'm thinkin' Harrisburg. All right. Now, urn, now had you used the vehicle before, uh, outside of work? No. OK Not 'ill that point. OK I did, my vehicle was, uh, like I was broke down at that point so I was just basically staying either with my cousin or with my uncle. At that point my uncle...he had jiJst been coming back from vacation and stuff so there for a while I was jiJst staying with my cousin, just, you know, so as to not inconvenience them. Right. And what were your specific job duties there at the Central Locating Service? What we did is, urn, you got like a series of tickets at the beginning of the day, ifanybody whether it be like residential or commercial was going to dig for any reason . . . Yeah. . . . they had to call us and then we would go there and, uh, we would located like gas or water or telephone or anything like that, put a mark on the ground so they knew they couldn't, you know, dig within that certain area. OK All right. Now, this was, when this accident happened it was on a Saturday, right? Yeah. What day was that, Saturday? Saturday, August 3rd it was around, I believe 3:00 or 3:30 in the afternoon. Allegis InvoicelD: 205490 ij U U U II 9 165 Q: 166 167 A: . 168 169 Q: 170 171 I72 A: 173 174 Q: 175 176 A: '77 .18 Q: 179 180 A: 181 182 .183 Q: 184 185 A: 186 187 Q: 188 189 A: 190 191 Q: :92 193 A: 194 195 196 197 Q: 198 199 A: 200 201 202 203 204 Q: 205 206 A: Recorded Interview of: Nicholas Herst Claim No.: 028998228 Date Of Interview: 2/512003 Page 5 [SP} = Spelling [SS] = Speaking Simultaneously [W] = Tape Damage So you were not working that day? No, I was not. All right. OK. When, and how, how was your employer made aware of this? Did you call them or what happened there? Yeah, I called him, I believe it was that next day I had got a hold ofhim and told him. Who was that? It was, uh, oh, man. . . Was he your boss or manager? Yeah, he was, he was my boss out ot: out of Harris- , or out of Carlisle. rm really drawin' a blank on his name. OK. You said you called him that day? Yeah. OK. He's the head guy at that office in Carlisle, rm sorry, I can't remember his name at all. Tbat's all right. And what did he say at that point, do you know, do you recall? He just, uh, he wanted to know where, if I was all right and where the car was and then at that point he didn't really have anything to say, he just told me to get a hold of him then when, you know what I mean, in a couple days. OK. And then what happened after that? It was probably about four or five days later I had gotten a hold ofhim and they had determined that'since there was someone else in the vehicle, that I was to be terminated. And I got together with him and got the stuff out of my vehicle and that's basically what happened. I gave him back like the keys and, uh, there was a gas card and stuff like that. OK. Now, were you injured at all? I had, uh, I think like 10 or 11 stitches in my elbow. AllegisInvoiceID: 205490 \~J U U U 1 U Recorded Interview of: Nicholas Herst C1aimNo.: 028998228 Date Of Interview: 2/512003 Page 6 [SP] = Spelling [SS] = Speaking SimuItaneously [TO]= TapeDamage 207 208 Q: 209 210 A:. 211 212 Q: 213 214 A: 215 216 Q: 217 218 A: '19 ao Q: 221 222 A: 223 224 Q: 225 226 A: 227 228 Q: 229 230 A: 231 232 Q: 233 :34 A: 235 236 237 238 239 Q: 240 241 242 A: 243 244 245 Q: 246 247 A: 248 Which one, left or right? Right. And .. . I believe, I believe what had happened, is when it hit the windshield. Yeah. Were you wearing your seal? Yeah. And the airbag deployed. OK. And, uh, you mentioned this Brit McCardle, she was a friend of yours then? Yeah. Was she a girlfriend or just a friend or what? Just a friend. . OK. And, urn, had she ever ridden in the vehicle before? No. OK. Was she injured? Yes. She had, both her legs, like I believe her ankles had gotten busted up and her wrist and I believe like the right side of her, right or left side ofher face. She didn't have her seat belt on. She was kind of like about half cocked sideways on theseatsoWhen she slid down she was, she slid in underneath the dashboard. Yeah, OK. Urn, let's see here, when you started working there, did you have a company, access to the company vehicle or how did that work once you started? It wasn't, it wasn't immediately. Y ou're supposed go through, urn, you got like a training sort of thing . . . Right. . . . where like before you can drive the vehicle on your own or before you can go out and locate on your own you have to go through a, I can't remember exactly what you call it. AIIeg1s InvoicelD: 205490 (juUUlt Recorded Interview of: Nicholas Herst Claim No.: 0211998228 Date Of Interview: 2/512003 Page 7 [SP] = Spelling [SS] = Speaking Simultaneously [ID] = Tape Damage ~9 .0 Q: il .2 A: ;3 ;4 ;5 Q: ,6 17 A: ;8 ;9 Q: 50 5\ 62 A: 63 64 65 Q: 66 67 68 A: 69 70 Q: 71 72 A: ,73 .74 Q: :75 :76 A: :77 ~78 Q: ~79 t80 A: t81 t82 Q: Like a probation type of thing? Yeah, it was like Smith, Smith something driving tests where you had to drive with a trainer and take a test and pass those two before you could drive the vehicle. OK. And is there anything else you'd like to add regarding what happened? Not that I can think of. OK. Uh, let me ask, uh, was the company offer or provide any worker's comp payment or coverage? . No. I was under the assumption that because I had violated the policy of not having, um, anybody other than an employee in the car that I was ineligtble for that. OK. All right. And I believe that's it. So let me go ahead and close out the statement, OK? All right. OK. Have you understood the questions rve asked? Y cab. Have your answers been true and correct to the best of your knowledge? Yes. And may I have your permission to turn off the recorder? Yes. OK. Allegis InvoicelD: 205490 OUUU1~~ 'I, 10 11 12 \' i 13 \, 1 1 BRITT P. McCARDLE, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 2 CIVIL ACTION - LAW vs. 3 NICHOLAS HERST and JURY TRIAL DEMANDED 4 CENTRAL LOCATING SERVICE, : LTD. , 5 Defendants. NO. 03 -1263 6 t~[PY 7 8 9 DEPOSITION OF: PHILIP D. DORNER Taken by: Plaintiff Before: Amy R. Fritz, Notary Public Registered Professional Reporter Date: November 11, 2003, 11:00 a.m. 14 Place: Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, Pennsylvania 15 16 17 18 APPEARANCES: 19 ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN BY: ROBERT B. ELION, ESQUIRE FOR - PLAINTIFF 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 correct? A. Correct. Q. And would you -- I've taken a look at the documents. But in your own words, would you give us what those options are? A. There are two options, the first of which is home-garaging where that employee would take the company vehicle to and from work, park it at their residence in a secure location in the evenings at the conclusion of work and proceed to their first locate the following morning directly from their residence. The second option would be to have the vehicle parked at a centralized location; possibly an office, possibly a customer's service yard, if you will, possibly a gas station, and use their own vehicle in the mornings to leave their residence, go to that centralized location, get in the compa~y vehicle, perform the work throughout the day, drive back to the centralized location and drive home in their personal vehicle. Q. Is it fair to say that company policy is that regardless of what option you use, you're not supposed to use the company vehicle for something which is not work related? A. It is fair to say that, yes, and it is stated in the employee handbook as well. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 when and when not liability coverage would apply to a vehicle that they're using? A. I'm not aware of any correspondence. Q. How did you become first aware of this motor vehicle accident? A. Via telephone, I believe, the following Monday at approximately 11:00 in the morning. Q. By the way, before I get into that, Mr. Herst was dismissed from his employment with you, correct? A. Correct. Q. And the reason why he was dismissed was what? A. Personal use of company vehicle, violation of the company policies. Q. And did you specifically dismiss him? A. I did not. I never saw the man after the incident occurred. Q. How many years all together have you worked for Central Locating Services? A. Five and a half, six. Q. During that five and a half or six years, are you aware of any employee other than Mr. Herst being dismissed .for violation of a company policy in using the car? A. Yes. Q. Can you give me an approximation as to how many LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Basil A. DiSipio, Esquire Identification No.: 28212 510 Walnut Street -10th Floor Philadelphia, PA 19106 (215) 627-0303 Attorney for Defendant, Central Locating Service, Ltd. CUMBERLAND COUNTY COURT OF COMMON PLEAS BRITT P. McCARDLE v. CIVIL ACTION - LAW NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD. No. 03-1263 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S. CENTRAL LOCATING SERVICE. L TD.. MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 1035.1, et seq" of the Pennsylvania Rules of Civil Procedure, defendant, Central Locating Service, Ltd. (hereinafter "CLS"), by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, moves for summary judgment dismissing this action with prejudice. In support of its Motion, moving defendant states: I. STATEMENT OF FACTS On Saturday, August 3, 2002, plaintiff, Britt McCardle, asked co-defendant, Nicholas Herst, for a ride to her sister's house in Selinsgrove, Pennsylvania, At the time, the onlyvehicie Mr. Herst had available was his CLS truck because his car was being repaired. Mr. Herst testified he advised plaintiff she was not permitted to ride in the CLS truck because non-employees are not allowed to ride in company vehicles. His testimony consisted ofthe following: Q, At any point before this motor vehicle accident do you have a specific recollection of communicating with Britt McCardle informing her that she was not permitted to be in that vehicle? A. Yes. See Exhibit "B" at page 55, lines 6-10. Nonetheless, Mr. Herst gave plaintiff a ride in his CLS truck on Saturday, August 3, 2002, As plaintiff and Mr. Herst were driving on Fairview Street in Cumberland County, Pennsylvania, Mr. Herst lost control of the vehicle, slid offthe road and into a tree causing injury to himself and plaintiff. After the accident, both Mr. Herst and plaintiff were taken to different hospitals to be treated for their injuries. The following Monday, August 5, 2002, Mr. Herst was terminated from CLS for failure to follow rules, specifically, because he had someone other than a CLS employee in the car and he was using the car for a non work-related purpose. Mr. Herst began his employment with CLS on July 15, 2002. At that time, Mr. Herst was provided with CLS employee handbooks and manuals. He was also provided with certain documents, particularly a document entitled, "Use of a Company Vehicle Assigned to an Employee," which he read and signed on July 15, 2002. This particular document specifies, among other things, when an employee is entitled to operate the CLS company vehicle. The document states an employee may only use the company vehicle while driving to and from work and throughout the course of the day for business purposes only. The vehicle is not to be used for non work-related purposes. It also states non-employee passengers are prohibited in company owned vehicles, including family members, friends and the general public. It is evident Mr. Herst read and understood these policies, as he signed all the documents provided to him. - 2 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLl & GRAY. ATTORNEYS AT LAW SUITE 1000,510 WALNUT STREET, PENN MLTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 Further, during his deposition he admitted that he understood the vehicle was not to be used in the manner he used it in on the day of the accident. He testified to the following: Q, And Choice No.1, it's my understanding that you understood that you were to drive it to and from work? A. Yes, Q. You were not to put anyone in the vehicle other than a CLS employee, correct? A. Yes. Q, And that on weekends it was to sit idle? A. Yes. Q. And unless you were headed to some sort of emergency on the weekends, you weren't to use the vehicle, correct? A. Yes, See Exhibit "B" at page 87, lines 6-17. II. LEGAL ARGUMENT A. Standard for Summary Judgment The Pennsylvania Rules of Civil Procedure authorize the entry of summary judgment in two (2) circumstances: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element ofthe cause of action or defense which could be established by additional discovery or expert report, or - 3 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLl & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C,P, 1035.2. In other words, summary judgment must be entered after the pleadings, depositions, answers to interrogatories and admissions, together with the supporting affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, Merriweather v. Philadelphia Newspapers, Inc., 453 Pa, Super. 464, 684 A.2d 137 (1996); Snyder v, Specialty Glass Products. Inc" 441 Pa, Super. 613, 658 A.2d 366 (1995); Dibble v, Security of America Life Ins, Co" 404 Pa, Super. 205, 590 A.2d 352 (1991). Once amotion for summary judgment has been properly supported, the burden shifts to the non-moving party to adduce sufficient evidence tending to prove the existence of a material question of fact. Samarin v, GAF Corporation, 571 A.2d 398, 402 (Pa, Super.1989), allocatur denied, 574 A.2d 71 (Pa, 1990). As such, the non-moving party "may not rest upon the mere allegations or denials of the pleadings but must file a response. , . identifying one or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion, . , ." Pa.R,C.P. 1 035.3(a)(I), Summary judgment is also appropriate where a party is unable to produce evidence sufficient to permit a jury to find facts essential to its cause of action See Pa,R.C.P, 1035.2, "Explanatory Comment" (citing Godlewski v. Pars Mfg, Co" 408 Pa. Super. 425, 597 A.2d 106 (1991)). Pursuant to subparagraph (2) ofPa.R.C,P, 1035,2, if the record contains insufficient evidence and facts to make out aprimafacie case, .4- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLl & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 then there is no issue to be submitted to a jury, and the moving party is entitled to summary judgment as a matter oflaw. Id, In the instant case, the relevant pleadings and discovery responses raise no genuine issue of material fact. According to the facts of this case and the law in Pennsylvania, CLS cannot be held vicariously liable for Mr. Herst's negligence as he was clearly acting outside the scope of his employment at the time of the accident and Mr. Herst did not have express or implied permission to transport Ms, McCardle at the time of the accident. Plaintiff cannot prove otherwise. Therefore, as a matter oflaw, CLS is not vicariously liable for Nicholas Herst's negligence and summary judgment in CLS' favor is appropriate, B. CLS is not Vicariously Liable for Nicholas Her.vt's Negligent Acts Because His Conduct At the Time of the Accident Was Outside the Scope of Employment. Before determining whether an employer is vicariously liable for his employee's negligence, it must first be determined whether there is an employee-employer relationship. An employee-employer relationship exists when the employer is in charge of the employee's work and also has the authority to direct the employee on how his work is to be done. Esmelinda Valles v. Albert Einstein Medical Center et aI" 2000 Pa. Super. 243, 758 A.2d 1238 (2000), affd. by 569 Pa. 542, 805 A.2d 1232 (2002). An employer is vicariously liable for his employee's negligence, which causes injury to a third party, ifthe employee's negligence was "committed during the course of and within the scope ofthe employment." 758 A.2d at 1244. For purposes of vicarious liability, an employee's conduct is within the scope of employment if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. - 5 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLl & GRAY' AlTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, P A 19106 (215) 627.0303 Lisa M. Costa v. Roxborough Memorial Hospital and Ronald Krier, 708 A.2d 490, 493 (1998), citing Fitzgerald v, McCutcheon, 270 Pa. Super. 102,410 A.2d 1270, 1271 (Pa. Super. 1979); see also Natt v, David Andrew Labar et aI., 117 Pa. Commw. 207, 543 A.2d 223 (1988). An employee's conduct is not within the scope and course of employment "if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the [employer]." Plavi v, Nemaco/in Volunteer Fire Company, 1992 Pa. Commw. LEXIS 204, at *8 (Mar. 12, 1992). The first issue is whether Mr, Herst and CLS had an employee-employer relationship at the time of the accident. CLS was in charge ofMr. Herst's work and also had the authority to direct Mr. Herst on how his job was to be performed. As such, there is no dispute that when CLS hired Mr. Herst on July 15,2002, an employee-employer relationship existed. The only remaining issue is whether CLS is vicariously liable for Mr. Herst's alleged negligence. Pursuant to the Pennsylvania Superior Court in Valles, in order for CLS to be vicariously liable for Mr. Herst's negligence, plaintiff must prove Mr. Herst's negligence was "committed during the course of and within the scope of the employment." 758 A.2d at 1244. The facts of this case establish Mr. Herst was not acting within the scope of his employment with CLS at the time of the accident. Mr. Herst was hired by CLS on July 15, 2002, as a locating technician. When an individual or excavating company is going to dig, they must first call the Pennsylvania One Call System to notify them of their intent to dig. The Pennsylvania One Call System then generates a ticket with information regarding the date, time, and location of the dig. The ticket is then electronically transferred to the utility companies who have facilities in the area of the dig. CLS then is provided with those tickets from the utility company. The tickets are given to the locating technicians, who drive out to the dig site in their - 6 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000,510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 CLS truck and locate and mark the underground utilities. The locating technicians drive to various dig sites in their CLS truck throughout the day. Mr. Herst was hired by CLS to obtain these tickets and then drive to the dig sites and locate underground facilities. CLS' company policy prohibits non-employee passengers in the CLS owned vehicle at all times. See Exhibit "C," Further, employees of CLS are to use their assigned company vehicle only to travel to and from work and throughout the course of the day for business purposes. See Exhibit "C," Aside from on-call status, the company vehicle must remain at the employee's residence until the following working day. See Exhibit "C." Philip (Dave) Domer, CLS District Manager, testified on November 11, 2003, that employees are not to use the company vehicle for non work-related purposes. Mr, Domer's testimony consisted of the following: Q. Is it fair to say that company policy is that regardless of what option you use, you're not supposed to use the com- pany vehicle for something which is not work related? A. It is fair to say that, yes, and it is stated in the employee handbook as well. See page 17, lines 20-25 of Dave Domer's deposition attached as Exhibit "E." At Mr. Herst's deposition on September 24, 2003, he testified he knew of these policies at the time of the accident. He testified: Q. And Choice No, 1, it's my understanding that you under stood that you were to drive it to and from work? A. Yes. Q. You were not to put anyone in the vehicle other than a CLS employee, correct? A. Yes, - 7 - LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY' ATIORNEYS AT LAW SUITE 1000,510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, P A 19106 (215) 627-il)OJ Q. And that on weekends it was to sit idle? A. Yes, Q. And unless you were headed to some sort of emergency on the weekends, you weren't to use the vehicle, correct? A. Yes, See Exhibit "B" at page 87, lines 6-17. Moreover, during his recorded interviews with Bill Barnes on October 12, 2002 and February 5, 2003, Mr. Herst admitted he knew he was only to use his CLS vehicle to drive to and from work. See Exhibit "D." He also admitted he knew he was not permitted to have non-employee passengers in his CLS vehicle. See Exhibit "D." On Saturday, August 3, 2002, Mr. Herst violated all ofthe above CLS policies. He was using his CLS vehicle for a non work-related purpose and during his off-duty time, Further, he had a non- employee passenger in the car. Clearly, Mr. Herst was not acting within the scope of his employment at the time of the accident. Plaintiff cannot establish otherwise. Therefore, as a matter of law, CLS is entitled to summary judgment. At the time of the accident, Mr, Herst was transporting the plaintiff to her sister's residence in Selinsgrove, Pennsylvania, Clearly, this conduct is not within the scope of his employment, as it is not the kind of job Mr. Herst was employed to perform, He was employed to locate underground utilities for CLS. Moreover, the accident occurred on a Saturday at approximately 3:30 p.m. Since Mr, Herst only works Monday through Friday, it is clear he was not working on Saturday, at the time of the accident. He even testified that he was off-duty at the time of the accident. See Exhibit "B," Moreover, he stated - 8- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLl & GRAY. ATTORNEYS AT LAW SUITE 1000. 510 WALNUT STREET. PENN MUTUAL TOWER PHILADELPHIA, P A 19106 (215) 627-0303 in his October 12, 2002 interview with Bill Barnes that he was not on the clock working at the time of the accident. See Exhibit "D." As such, Mr. Herst's conduct at the time of the accident cannot be considered within the scope of his employment as it did not occur within the authorized time and space limits of his employment with CLS. Furthermore, the purpose of Mr. Herst's travels on the day of the accident was to give the plaintiff a ride to her sister's house. Clearly, his conduct was not within the scope of his employment, as it was not actuated by a purpose to serve CLS; it was actuated by a purpose to serve the plaintiff. Not only do the facts of this case indicate that Mr. Herst violated company policy, Mr. Herst, himself, admits he violated company policy by driving the vehicle for a non work-related purpose and for transporting a non-employee passenger. His testimony consisted of the following: Q. And specifically what rules did you fail to follow from your understanding? A. I had someone in the car other than someone who worked at Central Locating Service and I was using it when I wasn't supposed to. See Exhibit "B" at page 43, lines 16-20. He even testified that from his perspective, he was not acting within the scope of his employment at the time of the accident. He testified to the following: Q. And from your perspective and your understanding were you acting in the course of your employment or were you doing something in the course of your employment at the time of this motor vehicle accident? A. No, I was not. -9- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY' ATIORNEYS AT LAW SUITE 1000, 51 0 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, P A 19106 (215) 627-0303 See Exhibit "B" at page 43, lines 21-25, page 44, line 1. As such, Mr. Herst was acting outside the course of and scope of his employment with CLS. Mr. Herst was hired to locate, not to drive his friends around. Finally, as a result ofMr. Herst's violations of company policy, he was immediately terminated by CLS. Mr. Dorner testified the reason for his termination was the following: Q. And the reason why he was dismissed was what? A. Personal use of company vehicle, violation of the company policies. See Exhibit "E" at page 26, lines 11-13. Clearly, CLS cannot be vicariously liable for Mr. Herst's negligence. Mr. Herst's conduct at the time of the accident was different in kind from that authorized by CLS, far beyond the authorized time or space limits, and not actuated by a purpose to serve his employer, CLS. The facts of this matter also establish Mr. Herst did not have express or implied permission to use the vehicle in the manner, for the purpose and at the time of the accident. Plaintiff cannot prove otherwise. Therefore, as a matter oflaw, CLS cannot be liable to plaintiff and entry of summary judgment in CLS' favor is appropriate. - 10- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MCTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 III. CONCLUSION CLS respectfully requests entry of summary judgment in its favor. The facts of the case establish that Nicholas Herst was not acting within the course of and scope of his employment with CLS at the time of the accident. Consequently, as a matter of law, CLS cannot be liable to plaintiff. The purpose of Pa.R.C.P. 1035.2 is to eliminate trial where there are no facts to be tried. That purpose will be served here by dismissing the claims against CLS, as there are no facts on which a finding ofliability against CLS can be sustained. Respectfully submitted, LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Dated: February 2, 2004 CERTIFICATE OF SERVICE I, BASIL A. DISIPIO, ESQUIRE, hereby certify that on February 2, 2004, a true and correct copy of Defendant's, Central Locating Service, Ltd., Motion for Summary Judgment was served upon all counsel of record by First Class Mail, postage paid. Robert B. Elion, Esquire Elion, Wayne, Grieco, Carlucci, Shipman & Irwin 125 E. Third Street Williamsport, P A 17701 Counsel for Plaintiff, Britt P. McCardle Thomas J. Williams, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Co-defendant, Nicholas Herst LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BA A. DISIPIO, UIRE Attorney for Defend Central Locating Service, Ltd. BY: - 7 - LAVIN, COLEMAN, O'NEIL, RICCI. FINARELLI & GRAY. ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 (") ~ 4Ui..-).l ~.';!;: ~~ i; l_~i .c._I ") :5>c ~ ~ ,...., g; .s:- .." fT'\ CO I &'" Q, -l ::r.:-n i -u 6f :J;.: z~ S:~ .~ r:Y ~ -<-. eJI BRITT P. McCARDLE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION - LAW VB. NO: 03-1263 NICHOLAS HERST and CENTRAL LOCATING SERVICE, LTD., JURY TRIAL DEMANDED Defendant PLAINTIFF'S RESPONSE TO DEFENDANT. CENTRAL LOCATING SERVICE'S MOTION FOR SUMMARY JUDGMENT 1.-5. Adrnitted. 6. Denied. Pertinent parts of Herst's deposition transcript are attached hereto as Exhibit 1. Herst testified that at the time of the accident, he and the Plaintiff were driving frorn Herst's sister's house in Harrisburg to Herst's uncle's house in Carlisle to drop his cornpany's truck off and then have his parents corne down to take the Plaintiff to her sister's house in Selinsgrove. (Transcript at pp. 53-54). 7. Adrnitted. 8. Adrnitted. However, Mr. Herst had express perrnission frorn Central Locating to drive its truck frorn where he was staying (either his sister's or his uncle's house) to Central's office in Carlisle. Driving the vehicle from his cousin's house in Harrisburg to his uncle's house in Carlisle, a rnile or two away from Central's office, so that it would be available for hirn to drive to the office Monday rnorning, was only a slight deviation frorn the perrnission given. 9.-15. Adrnitted. 16. Herst's opinion as to whether or not he was acting in the course of his employment is irnrnaterial. 17. Denied. 18. Adrnitted that Plaintiff alleges Herst was an ernployee of CLS, acting within the course and scope of his employrnent at the tirne of the accident, and, therefore, that CLS is vicariously liable for Herst's negligence. 19. Adrnitted. 20. Denied. Herst's conduct in driving the truck on a Saturday frorn his cousin's house, where he was staying, to his uncle's house one or two rniles away from Central's office so the vehicle would be there for hirn to drive to work on Monday rnorning, served the interest of his ernployer and was only a slight deviation frorn the tirne and space lirnits set by his ernployer, and, therefore, did not take him outside the scope of his ernployrnent. 21. It is denied that the facts of this case establish that Mr. Herst's conduct was far beyond the authorized tirne or space lirnits. 22. Denied. Herst's actions were calculated in part to serve the interest of his employer. 23. It is admitted that Herst's letting Plaintiff ride in the vehicle was clearly against CLS cornpany policy, but this did not take hirn out of the scope of his ernployrnent. 24. Denied. 25. Adrnitted. However, for purposes of Herst being covered under CLS's liability insurance policy, so long as Herst's deviation frorn the perrnission given to operate the vehicle was slight or inconsequential, and not substantial, he rnust be covered. 26. For the reasons set forth in our Brief in Opposition being filed with this Response, Plaintiff respectfully requests the Court to deny Defendant, CLS's, Motion for Surnrnary Judgrnent. Respectfully submitted, ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. 1 Robert B. Elion, Esquire I.D.#PA 21030 ''7)DcJk ~ David C. Shiprnih, Esquire I.D.# PA22016 Attorneys for Plaintiff 125 East Third Street Williarnsport, PA 17701 (570) 326-2443 (telephone) (570) 326-1585 (fax) -. CERTInCATE OF SERVICE AND NOW, this ~~y of February, 2004, cornes David C. Shiprnan, Esquire, Attorney for Plaintiff and certifies that a copy of the foregoing Plaintiffs Response to Defendant, Central Locating Service's Motion for Sumrnary Judgrnent has been served upon the following individuals by United States first class rnail, postage prepaid: Basil A. DiSipio, Esquire Lavin, Colernan, O'Neil, Ricci, Finarelli & Gray Suite 1000 510 Walnut Street Philadelphia, PA 19106 Thornas J. Williarns, Esquire Martson, Deardorff, Williarns & Otto Ten East High Street Carlisle, PA 17103 ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. 1J~fi'> , David C. Ship 161, Esquif:.. I.D.# PA22016 Attorneys for Plaintiff 125 East Third Street Williarnsport, PA 17701 (570) 326-2443 (telephone) (570) 326-1585 (fax) ORIGINAL BRITT P_ MCCARDLE, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 03-1263 NICHOLAS HERST AND CENTRAL LOCATING SERVICE, LTD., Defendants. JURY TRIAL DEMANDED Deposition of: NICHOLAS HERST Taken by: Plaintiff Before: Jan L. Bucher Court Reporter-Notary Date: Wednesday, September 24, 2003 at 10:30 a.m. Place: Martson, Deardorff, williams & Otto Ten East High Street Carlisle, Pennsylvania APPEARANCES: ELION, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN BY: ROBERT B. ELION, ESQUIRE FOR - PLAINTIFF MARTSON, DEARDORFF, WILLIAMS & OTTO BY: THOMAS J. WILLIAMS, ESQUIRE FOR - DEFENDANT NICHOLAS HERST -<--~- ~. ~.. ~~' ,.f:''''...... /'.~ 1'~.?,:;-~'"L~L r:-'~ .' /'~" --/::.70" /.... (("i'::::..::":PiJ:>ntrall~~ ..'.'a J'~ '" ;;;'-::'-.:::1('/' ,'~A,.. __J,.,K1.1. , "".", -~J'" : ,. ~rt Reporting Services \.;;>. /;!JI00-863-3657 . 717-258-3657 . 717-258,0383 fax "':'~::::4,r courtreporters4u@aoLcorn EXHIBIT ~ ~ 15 A 16 Q 17 A 18 their car. 19 Q 20 A 21 Q 22 23 answer. 24 25 53 1 Q So my question to you is that you thought about 2 the fact that there would be no liability insurance 3 coverage with Britt, but you didn't think about it with 4 reference to yourself? 5 A I didn't really think about it. I just knew. 6 Q You knew with Britt? 7 A Yes. 8 Q And you knew with you? 9 A Yes. 10 Q Now, I believe that you testified on the day of 11 the accident that you were heading towards your uncle's? 12 A Yes. 13 Q And the purpose of going to your uncle's who 14 lived in Carlisle was what? To drop the truck off. And what were you going to do at that point? J: i I' I I: Phone my parents and have them come down with With what car? With my parents' vehicle. Your car was still inoperable; is that right? MR. DISIPIO: Objection to the form. You can THE DEPONENT: Sorry. MR. DISIPIO: You can answer. I just put an ~ 54 1 objection on the record. 2 THE DEPONENT: All right. What was it again? 3 MR. ELION: I'm trying to figure out why you 4 objected, but a lot of times this stuff goes beyond me 5 anyway. 6 BY MR. ELION: 7 8 9 10 11 12 Q The motor vehicle that you had that was registered in your name that was insured by Progressive was not operable at that time; is that correct? A I believe so, yes. Q A How far do your parents live from your uncle? About an hour and a half. 13 Q It was your intention to call your parents to 14 come down with their vehicle so you could use their 15 vehicle? 16 17 18 19 20 21 22 23 24 25 A Q A Q A Q To run Britt home, yes. Her intention at the time was to do what? Britt's intention? Yes. To go to her sister's house. In Selinsgrove? A Yes. Q Now, do you have any specific recollection of talking to Britt McCardle about whether or not it was permissible for her to be a passenger in the Central -'- !~ 58 1 2 3 4 5 6 7 through a Progressive policy at the time? A I didn't know, no. Q What was your understanding of the insurance coverage that you had through Progressive at the time of the motor vehicle accident? A It was regular insurance. Q Which would have covered what as far as your 8 knowledge? 9 A I don't really have any knowledge of it. 10 Q Now, on the date of this accident my 11 understanding is that you and Britt were staying with your 12 cousin -- is it Andrea Peters? 13 14 A Q Yes. You had stayed there for a few days prior to 15 this, correct? 16 A Yes. 17 Q The night before on August 2, 2002, did you 18 stay with Andrea Peters? 19 A Yes. 20 Q And did you work for Central Locating on August 21 2, 2002? 22 A I believe so. 23 Q And then you drove the vehicle back to Andrea 24 Peters' that night? 25 A Yes. 79 1 before, Friday, August 2, correct? 2 A Yes. 3 Q And the Thursday evening, August 1, where did 4 you stay that evening? 5 A I don't remember specifically. It was probably 6 my cousin's, but I don't remember. 7 Q How about the night before, July 31, the 8 Wednesday evening? Where did you s~ay? 9 10 A Q I don't remember. Were you commuting from your cousin's house 11 to-- 12 A I was either commuting from my cousin's house 13 or my uncle's house. 14 15 16 17 18 19 particular Central Locating location on a day-to-day 20 basis? Q And your uncle being in Carlisle? A Yes. Q And your cousin being in Harrisburg, correct? A Yes. Q As part of your job did you report to any 21 22 23 24 25 A Q Yes, the office in Louther Street. Here in Carlisle, Pennsylvania? A Yes. Q Is that where you would get your tickets on a daily basis? 97 E X N i 1 Andrea Peters' than from your parents' house to your -. ~ 2 uncle's house? 3 A Yes. 4 Q Yet you were going to your uncle's house to 5 drop the vehicle off and have your parents' come down and 6 pick you up? 7 A Yes. 8 Q Why didn't you call them from Harrisburg -- to 9 come to Harrisburg because it's shorter? 10 A Because it's a shorter distance from my uncle's 11 house to where I work. 12 Q What was your plan? Your plan was to have the 13 parents come down, take Britt back up to Selinsgrove, and 14 then you stay with your parents'; is that correct? 15 A Probably until the end of the weekend. 16 Q Even though it would be longer for your parents 17 to go to your uncle's, you elected to go to your uncle's 18 as opposed to having your parents come to your cousin's, 19 correct? 20 A Yes. 21 Q Did you say that you're presently living with 22 Adam Middlesworth or not? 23 24 25 A No, no. Q Do you know where he is presently located? A No, I don't. 14 15 16 17 18 19 20 21 22 23 24 25 98 1 2 3 4 5 6 Q A Is he in Shippensburg? I'm not sure. Q And what was the occasion in January of 2003 where you had an opportunity to talk to Britt? A I was visiting my friend Joel Jones who's also Adam's friend. 7 Q That was in Shippensburg? 8 A Yes. 9 Q Did you see Britt at his :'1ouse? 10 A Yes. 11 Q And do you know what the occasion was why she 12 went to that house? Was there a party going on or some 13 social activity? A I believe she was getting together with some of Joel's roommates. Q Who else was at the house in January of 2003 at Adam Middlesworth's? Can you list all the people that you know were there? A I don't remember other than Adam and me and Joel and Britt. Q And who was Britt with? A Q Adam. And she had no cast on, she had no crutches, she appeared to you to be perfectly normal? A Yes. I , ) , 99 1 Q Wasn't limping? 2 A No. 3 Q Did you see her walk? 4 A Yes. 5 Q So from your observations in January of 2003, 6 you couldn't observe any physical problems with Britt; is 7 that your testimony? 8 A Yes. 9 Q Did you observe any scars that she might have 10 had on her body? 11 A No, I don't believe. 12 Q And if you had called your parents in 13 Reedsville to come down and pick you up, you and Britt up i , I I I , I I 14 in Harrisburg, it would not have been necessary for you to 15 transport Britt in the Central Locating Service vehicle, 16 correct? 17 A What was that again? If I 18 Q If you called your parents and say, Hey, I'm in 19 Harrisburg. Britt wants to go back to Selinsgrove. Will 20 you come down and get me, they could have done that and it 21 would not have been necessary for you to transport her in 22 the Central Locating Service vehicle? 23 24 A Correct. Q Before you left for your uncle's on August 3, 25 2003, did your call your parents and make arrangements . . 100 E ) \, 1 with your parents for them to meet you at your uncle's? 2 3 A No. Q Had you called them previously at any time and 4 asked them to come down to your uncle's and transport you? 5 6 7 3, 2003? 8 9 10 11 A No. Q Did you know your parents were home on August A Yes. Q How did you know that? A Because they are always home. Q Did Britt know Andrea Peters before she stayed 12 at her house with you in late July or early August of 13 2003? 14 15 A Not to my knowledge. Q So is it fair to say that you were the 16 connection which permitted Britt to stay at Andrea Peters' 17 house? 18 A Yes. Q And how did you make the arrangements to stay 19 20 with Andrea Peters? Did you call her or did you show up? 21 What was the deal? 22 23 24 25 A Q A Q I called her. Had you stayed there previously? Yes. What other time frame did you stay at Andrea , L , .. . , 101 ] E X H 1 Peters' other than the time frame in July and August of 2 2003? 3 A I can't remember. 4 Q How long did you~ stay there for - - 5 A Just a night. 6 Q - - previously. Had you ever stayed there prior 7 to July and August of 2003 for more than just the night? 8 A 9 Q 10 A 11 Q 12 time? 13 A 14 Q 15 plans as 16 days? 17 A 18 parents' 19 work. 20 Q No. Is Andrea Peters married? Yes. Where was her husband during this period of Overseas. On August 3, 2003, what were your personal to where you were going to spend the next few I was planning on spending that night at my house and then coming back down to Carlisle for Where were you going to be staying when you 21 came back down to Carlisle? 22 23 24 previously? 25 A Q A My uncle's house. Had you stayed at your uncle's house Yes. ~"-! o c: ;;-:~ ,-" ((. - , :2 "-> C::;) c.,;) "'- .." r,. co r,) a o " :;:l n1 :!J r- -ni"n ::-JCJ f~~~) _;'-):Ei ~~5:;~ .~,-I :.'-::1 --< - -~'. r::> ..- en BRITT P. MCCARDLE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 03-1263 CIVIL NICHOLAS HERST and CENTRAL LOCATING SERVICE LTD., Defendants IN RE: MOTION OF DEFENDANT, CENTRAL LOCATING SERVICE, LTD., FOR SUMMARY JUDGMENT BEFORE HESS AND GUIDO, J.J. ORDER AND NOW, this .y' day of May, 2004, it appearing that, at this point in the proceedings, the court is unable to conclude with the requisite ce:rtainty that the defendant was not acting within the scope of his employment, the motion ofthe defendant, Central Locating Service Ltd., for summary judgment is DENIED. BY THE COURT, David C. Shipman, Esquire For the Plaintiff Ad Basil A. DiSipio, Esquire For Defendant Central Locating Service Ltd. ~ /'YI'I.4:M ';~ 0 <1- 0 '1 Thomas J. Williams, Esquire For Defendant Herst ~l ;rlm Vil'-- :'\h\l/!\~~r"Jl'~:1cJ U",,--"."-.,.,-,., '.--. .-....f1n:J I l'~i~~..',j 1.1;,':' "::'~'~:'\l 6 ~ :01 tlV ~- A \1101 ~onz Ao'<tlONOHlOi;id 3Hl :10 381:1:10-0311:1 " ~ BRITT P. McCARDLE, Plaintiff : IN THE COURT OF COMMON PLEAS OF ; CUMBERLAND COUNTY, PENNSYLVANIA vs, : CIVIL ACTION - LAW NICHOLAS HERST and : JURY TRIAL DEMANDED CENTRAL LOCATING SERVICE, LTD., : Defendants : NO. 03-1263 PRAECIPE TO SETTLE AND DISCONTINUE TO: CUMBERLAND COUNTY PROTHONOTARY Kindly mark the record in the above-captioned rnatter settled and discontinued with prejudice. ELION, WAYNE, GRIECO, CARLUCCI, SHIPMA RWIN, P.C. By .,./ /. ., B. Elion, 1.0. #PA 21030 Attorney for Plaintiff 125 East Third Street Williamsport, PA 17701 (570) 326-2443 (570) 326-1585 .. , CERTIFICATE OF SERVICE I, DAVID C. SHIPMAN, ESQUIRE, hereby certify that I have served a true and correct copy of the foregoing Praecipe to Settle and Discontinue on the 3r,1 following by placing same in the U,S. Mail, postage prepaid, this day of April, 2006: Jarnes G. Nealon, III, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 Basil A. DiSipio, Esquire Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray 510 Walnut Street - 10th Floor Philadelphia, PA 19106 Thornas J. Williarns, Esquire Martson, Deardorff, Williarns & Otto Ten East High Street Carlisle PA 17013 ELlON, WAYNE, GRIECO, CARLUCCI, SHIPMAN & IRWIN, P.C. By oJi,ej . Elion, LD. #PA 21030 AttorI y for Plaintiff 125 ast Third Street Williamsport, PA 17701 (570) 326-2443 (570) 326-1585 C) 1,'- c', ',--; C'~; C')