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Home My WebLink About98-06970 .~ 'i' " }- ~ J j' ,. .' . VI. Ie 1-6 -; . . I . l:t I l~ . I C; \ liJl \,'- . 13 ! i j , j . I I . 1 , , \ I , , j i I .1 ! j . , j \( ! ~. \ 1- iJ" :i , o r. S ,CiJ jo - ... . assessed on a case by case basis. See Farinacci. at 511 A.2d. at 759. In the present case, defendant ohjects that the statute of limitations in this matter has expired because plaintiff did not make a good faith effon to serve legal process by the sheriff within the statute of limitations. However, Defendant did receive notice of the initiation of the lawsuit by writ of summons via correspondence dated December II, 1998, sent certified mail and received by defendant on December 14, 1998 two days before the expiration of the statute of limitations. This exact issue was addressed in the case of Leidich v. Franklin, 575 A.2d 914 (Pa. Super. 1990). In Leidich, the plaintiff was in a car accident with Defendant on April 4, 1986. On January 4, 1988, three months before the statute of limitations, the plaintiff filed a praecipe for writ of summons with the Prothonotary of Dauphin County, after which the plaintiff attempted to settle the matter with defendant's insurance carrier. While the writ of summons was never served by the Sheriff of Dauphin COllnty, the plaintiff served a copy of the writ on the defendant by first class mail dated January 5,1988. After April 4, 1988, the insurance company informed plaintiff that the case would not be settled but defended "on technical grounds involving alleged defects in the service of the writ of summons." After the passage of the two years period of limitations. the plaintiff filed a praecipe on May 17, 1998 seeking reissuance of the writ. which was thereafter served by the Sheriff. The Superior Coun explained that while tbe service of the writ by regular mail was defective, the defect in the service did not affect any substantial right of tllC defcndant nor was tllcre any prejudice by thc manner in which [he defendant received noticc of a lawsuit. Leidich. 575 A.2d at 919. The Superior Coun found that tht: plaintiffs attomey's actions in serving the writ of summons by regular mail and then not having a sheriff serve it until after the statute of 5 'Ihnitations was not "a course of conduct which served to stall" the machinery of justice. Therefort:, the Superior Court held that under those facts, the "good faith" effoTlto notify the defendants was established in tandem with the absence ofa "course of conduct" attributable to the plaintiff evidencing a stalling of the machinery of justice. W. at 920 Therefore the Superior Court reversed the dismissal of the lawsuit 011 the statute of limitation grounds. A rCl'iew of the mon~ recent Witherspoon decision rcvcals while some of the same issues are addressed in the decision. the Witherspoon holding does not affect the application of Farinacci v. Beaver County Industrial Development Amhority, 511, A.2d 757 (Pa. 1986), and Lejdich 1'. Franklin, 575 A.2d 914 (Pa. Super. 1990) to the instant matter. In WithersDoon v. Citv of Philadelohia. 768 A.2d 1079 (Pa. 2001). counsel filed a praecipe for writ of summons two days prior to the expiration of the statute of limitations and forwarded it to a process server for service. However, when the process server's attempts to serve the writ were unsuccessful, he failed to file a return of no service and the plaintiff's lawyer failed to promptly ascertain whether service was made. As a result, service was not made on the defendant until approximately 8 months after statute of limitations expired. The court affirmed the lower court's grant of preliminary objections, holding that the statute of limitations had expired when service was not made and the writ was not "immediately and continually reissued" until the writ was served. The WilbersDoon decision is not dispositive of the issue of whether plaintiff's defective service failed to toll the statute of limitations. In WithersDoon.the plaintiff made a good faith effort to serve the defendant by immediately hiring a process b IV CONCLUSJQN Service of the writ of summons by certified mail constituted a good faith effort to serve the writ of summons which did not stall the legal machinery which plaintiff had put into motion. Even though the writ was not "immediately and continually" reissued as explained in Withersooon. the statute of limitations has been tolled because the defendant was timely put on notice of the lawsuit, the machinery of justice was not stalled, and the defendant was not prejudiced by the manner of service. Because an issue of fact exists as to whether defendant was prejudice, the Motion for Judgment on the Pleadings should be denied. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order striking Defendant's Motion for Summary Judgment. ("~7; BAU'/ JLDING' PC BY: /7/fIA' 'Richard C. Sokorai (6 (CO( 03 9 d: ,: ''\ ~''',~,~,,,,,''f~~;J"<~~ :':n-~~;:\:'::.:":~_'':~:.''''f.t:~'';:':i':.~;:;'''~I~~'''r4.,"':n\,~'o;,~ ~'."'~~:~lOci"f:'''\UTJt:''."''''''''~'':-''''"'' "'_; ;.', .... ~...." '~'", ;~,.,' . CGU CGU Mi~-Atlanlic 100 Corporate Center Dri\l~ P.O. Box 8851 Camp Hill, PA 17001-8851 I ~s U R \ N I.: [ T~L 7~7 :'D~..;3~:; 800 382- 1223 Fax: 717-796-7203 November 29, 1999 Ron Creazzo Attorney at Law 765 Washington 8t. Easton, PA 18042 RE: In!;I.,red: CI~0e &. PalJlinp. .Johnston Claim: 636 530361AC OIL: 12/16/96 Your Client: Krystal Wismer Dear Mr. Creazzo: This letter will acknowledge receipt of your demand letter along with the photographs received in our office on 11/24/99. After review of the records received as well as the photographs of your client's scarring and your demand, it is evident that we are no where near settlement range for this matter. . ! ; I' I \., , I I' , i I l ;; t' I I I Review of the records indicate that Krystal trerlted sporadically for migrane twadaches. Her CAT Scan was normal. With regard to her scarring, it is apparent that even the hospital did not find the laceration to be of great significance, as no sutures were used in her treatment. Krystal still has remaining benefits through her own first party benefits carrier, and therefore, in my experience it is likely that any bills for revision of the scar(s) would be covered completely. Our offer to settle this matter is.... Based on your demand o~ it appears unlikely that this case would settle, however if your client wishes to accept our offer, please advise and we will forward our release in settlement. Please know that this .offer is rescinded upon filing of a complaint. /- j.//) . . L?)I . sinceniy,;,. I - , . I ( ~ .~" y ~ ,.: L I.. ~/r · i" Al~ Den:s<.-n. ~,of1 gC[!iery, I.- Claims Examiner ) I ,-~ . _ .. -, ,.'...). "',~' -';< ~"".\";;,~;,,..~,.j .,....;..'0"'....,...,.",,'"\".l;,.'-".''''\'k:r.~. "li<M\"',""'.!.j!l;<:;~ '"'Ii.l.'"'~'~"'''ll> .',..... ,,!:'If,,."-,; 0",,- ' ~ .:' .' .r,)'..""" ".""-",':;, '"~".~"L"'~' .::.~.~.:~"~.,, ", ~..~ ,'",',.:: :~:~ "'.'"' :,..'~:..' "_:~I\ " '. ":" ,', ,.' "'",\~\., ~r- ~: \0: + ,\. c f( .. . .,': ':"" ,...:.'..<'.:.... '.':..:."',:'.;,.",,:;',< .,:::'..>:.<."'...~:..;..::,~../:?:'.:.,..~::~,~......:..~,:'," '.'; .' ';; SENDER: "C II Comploto items 1 ana/or:: far additional servicns. 'i:,i . Complelo IIams 3. 48. and 4b. Q.I . Pnn\ YOlJfr,ame and llddrcsson the tcve~e of lhis form to that wo can return this ~ card 10 you. ~ . AtlTctllhl$ iorm 10 tho lIonl 01 ltoO mailp16ce. or on lhe oack illiPnca does nol ~ pI! ,nit. . WI le'Ra/urn Aoeeml R8Q'U8SIM' on the mailpiece bolow lhe llrticle number. . Th I Pclum R.ecoipt WIll show to whom the Miele WIlS oolivcrGd and \he dale oelivered. .. ~ :; " o " ~ 0; C. E o Y I also wish to receive the following services (for an extra lee): " 0 Addrr Isee's Address 2, 0 Resll cled Deliyery Consult postmaster for 1ee. 4a. Article Numbor '? tt>:::' \ 3 ~ .., ~q 4b, SelVlce Type o Registered . 0 Express Mail o Relum Receipl!or Merchandise 7, Date 01 Deliyery /~-? . It/' <P r I B, Addressoe's Address (Only If requested and fee is paid) ! ~ .2 ~ o .. x " . '" I- . . &0 \ . '" " , "j, ~''.:i1f,,,.,I'lI,,,,\,'1''''',/jl'.:f'~'^~~'~.?~\'"I,,~~;~\:!;,'(",:-~"'i-1""i!"'~';';\J/.,,;....,..,..~ .."',.'.,,,>;>,.,...,,~ I._;IO!..._"",,,~,,,,,,,,,,,- "'~ , ...:::.11. '" ~ . , .' .. .:" \., , ~. .. .'. .", '.: ',', ." .- ~ :.':~: .~ :.___.,. ~ ':: ' ~:;" . ," . " . ~ .'\ fl, .; ,to. " > " ~ .Y 'E ~ l/l ~ c. .~ u ~ 0: C :; 'ii' ,.B Certii"d 0: co o Insured .~ o CDD ~ l/l W 0: C C "" 3, Anlcle ACldrossec 10: \'i\ s . -.s~S:.;c."- '""Sc::\;"".c;, \-dY\ l:>. D. ~Dll. 1.35 t"'Ic. Co !'\Y\e.\ I.:.tN{'\( PA I fi ~u,D ii: :J 5. Recelyed By: (pnn, Name) w ,tESSIC/? ..:J;j1l,u5'/O'u' 6." :; o .. .!! PS 1 ; Receipt 'p 003 183 739 Receipt for Certified Mail No' Insurance Covcrage Provided Co not use for 1ntcrnational MBil (See Reversel ~ - '""'II..... _...".....u PO$I.g" $ CfHlltlflCl ~"" $l){1C./I1 [lOll.,.,f\, fl!lO Rrtlll::\t'O !)eIWI!IV ht. - fi~l>I,r. "eouP1 :,ll(l....'.../jI ~ 10 W1l01Tl &. O.\f tIcoIM'!If'1:\ III rlflllJIIl "rL'f'IOI ~h!1\N1!li!11) Whom, c: Dftl., 1\f"lCl, ,r,(lcr'f,~.'" AOar,!;.' , .., I $,,2 :il 'C'!'AL 1'~J;IA.." & r....5 o o '" M E ~\ f'c~\n.\a'" (II Dille "111 :.I,Pt:U'III,'. l'I'.),'t;\\I\,!,r.;lt, 1'110:. ,\ II R A II :\:\1 II A U E R <'\: S l' :\ L III :\ G 1'. C. . .!~.~i:I.t.r':1t.~t.:~, o.,,\,~,..., ~ ~~ fJi-tf'i,:t li4-\.tl6.~';, ';i. :~/~.~ :.:t:~.~W'I':.. '~"'i'l:\,~t~ ,: ;.~~':~'~"'[o,;~'~i/V.':~,~f'~'C~,'".:)"~~. ,':1,~~~'~\..l)j1 {i,' 1lldl~lllJ f' AI1I.1I1;1I\1 lI..hulG 1i,IIIel' Willl,tlll \\'. ~pal.Jlll~' Hp~u ~L Sf1;,ldlllg Cd::: ,\::;: !:I:i~:t~)" t>l~'.J E, [)ur~llIr, /ljl:h:ud C. $nll\t;II' (~J.~I ~(l(;J)'i)(l (fOill ~~fj-APNJl h\:\: 1':15) %I)..:~i~ nlll'l'l Dial (21:)) ~/JI).(1(l~4 ~ Ai",l M~'.llhl:t Nl'\\' Jcr~~'\ 1l:11 'Nil\llIllal UlI;uJ'IIITrl,rI ,~,II'II":;I'\, C~'lljll~d III C1\'il Tllal Ad\"H':<I~Y Decemher 27, 2002 \\',lfH:1l S Sll:r1dIlIC ",IW, :(1<111 Wi'll ~il\': \\\\\\,;IIl_I.I\\'I'iQl1,IUIll (,\'tlrl'.11 E-Ill;lil: r'llll.I\'I(~J.III\I..\\lirm,\'lIll1 Jlinrl E-Illiril: 1I111ll1;il1f(h,lnl.lIliirlll,l'tilll Enclosed please find an original and thrce (3) copies of Plaintiff's Brief Contra Dcfendant's Motion for Summary Judgmcnt in the above-captioned matter. Kindly file the original with the Court and return a time stamped copy in the enclosed envelope. If you have any questions, please do not hesitate to contact me. , ,. ~ '- ~".....~, ,. . - , '. - , ,', \ :;; ,."; "~,~,_~.., 1!>1"~,",>-"""".,;,-\'1oi\<<~t.,)Sj;"J,~""",~\,.._,,\~,~,,,, '~:;;'~}".)~' .'*, )1:..".". -""-,......",. -r.-- .,..... '. 1",. ':' .' ".... :..,;" '."'.: .....,-.":.. <:'~"".':'",:,,:~:',:'>~''''''''' ....,'..:.,'~:....~:.:~.:..,... ..':".~ :.."'.\":':' ',' PI\::\~C reply hi Phll:n.h:lpl1i<1 Court l\dministrator Cumbcrland County Courthousc One Courthouse Square, 3R Carlisle, PA ] 7013 RE: Wismcr \'. .Johnston Cumherland County No. 98-6970 Dear Sir/Madam: Very tntly yours, ABRAHAM, BAllER & JPALDING, ]>,C. < 1/1-~ I / .' 'I//~ y . lly:_ /// I ~, Sokorai RCS:kf Enclosure C^' ~. Stephanie I.. Hersperger, Esquirc (w/enc.) "'1'" Jlnl" tI!rin' 1....lli~'lj \.Ilk\ iHfll\' 1 ,1l1ll:j"tIT lilli/I' lv.'IIl.h" 1l1l\L:, ~UlI,. 2m{ ,~"I i.OIJ.!i ~;lITI It:! ;1',11;,,-,. ',':on", M.lllh'lI, !\JlIl\O~J !\Ill'll'''\'ll. "A l~\n~ 1.,'lIi,"'lI'I.I'A 1')1",:,1 \1I..hi 71J'; ~}i~j \Id,'\ .l;;'.(\;(~l ,"!;I :'1\ ~\~; Hl'hl'Olll '.WJ\MUC~.FY\\'lll,'J~rSl'cI\.PMIN:l !l~7 1.(I\~k)7 IiI; ..1 '" I '''III~ h I II rl< , i,r,Jil,:,<!,'! 1,IC:IIl\ I'! I 1;" 1..1 ;Io';i. I' t, l":~' II \~' I.'" ,,~, i ,'1..~.1 It ~.u lml.: IIH j'I' ','\1'1 lln, ~;lfITI 1;,:,"!'I,t.I'I,l'holll (I.: i!1;7.'~I",h 1"'11,'11"11 tilt.,," ..1(1 ('II'-',I\lLII \,1"1-\ \ d\~HI"'L_ J'/, I'.'il..~ 1:17J';,;,\),',},1 hilVe the Writ of Summons served by Sheriff within thirty (30) days, Plaintiff did serve the Writ by certified nlail on Deccmber 14, 1998, four days afwr the Writ of Summons was filed. 7, Admitted in parI and denicd in part. It is admitted that the docket reflects no activity for the next seventeen months. However, it is denied that there was no activity in the case for the next seventeen months. In fact, Plaintiff and Defendant continued settlement negotiations during that time. (Sce Exhibits "A" and "B".) 8. Admitted. 9. Admitted. 10. Admitted. By way offurther answer, settlement negotiations continued during this time. II. 12. 13. 14. 15. 16. Admitted. Admitted. Admitted Admitted. Admittcd. Denied. The allegation of the corresponding paragraph is denied as a conclusion oflaw to which no rcsponse is required. By way offurthcr answer, Plaintiff filed the Writ witllin the two year statute of limitations and immediately served the Dcfendant via certified mail within thirty (30) days. I7. Denied. The allegation of the corresponding paragraph is denied as ~ conclusion oflawto which no response is requircd. By way offunher answer, Plaintiffst:rved thc Defendant \'ia certified mail four days aficr filing thc Writ of SUlllmons, , oi'law to whichno rcsponse is requircd, By way of funher answer, defendant was not prejudiccd by the manner in which she was served, 26. Denied. The allegation uf the corresponding paragraph is denied as a conclusion of law to which no response is required. By way of further answer Plaimiff made a good faith attempt at service when her counsel served a copy of the Writ of Summons on the Defendant via. certified mail on Dccember 10, 1998. As settlement negotiations continued, Plaintiffs actions did not slalllhe machinery of justice in any way. 27. Admitted in part and denied in pan. It is admitted that the Writ was not reissued and served by sheriff until June of 2000. Thc remainder of this allcgation is denied as defendant admitted she was served by mail with the Writ of Summons at her deposition. 28. Denied. The allegation of the corresponding paragraph is denied as a conclusion of law. By way of furthcr answer, Plaintiff made a good faith attempt to serve the Writ of Summons when she forwarded a copy of thc Writ to the Defendant via certified mail on December 10, 1998. 29. Denied. The allegation of thc corresponding paragraph is denied as a conclusion of law. By way of furth(~r answcr, Defendant was not prejudiced in any way by the manner in which she was timely served. 30, Denied. The allegation of thc corresponding paragraph is denied as a conclusion .of law (0 which no response is rcquired. By way of further answer, unlike the case of Withcrsl'illlll, Ddcndant rcceived actual notice of the lawsuit, so there was no longer a question about bearing the possibility of litigation as defendant had actual notice that litigation had been initiated. This casc is more similar to the case ofl.cidich v, Franklin, 575 A,2d 914 (Pa, Super. 4 not have the Sheriff to do so for some time, Those Preliminary Objections were overruled without prejudice allowing the Defendant to raise the defense in the Answer and New Matter, Accordingly, the Defendant filed an Answer with New Matter and now brings this Motion for Summary Judgment. However, the facts of this case do not support summary judgment. Defendant does not dispute that Plaintiff's Writ of Summons was filed prior the expiration of the statute of limitations. Nor does Defendant dispute that the Writ of Summons was served on Defendant four days later via mail. The only issue is whether Defendant was prejudiced by the failure of the Sheriff to serve the Writ of Summons until some time later. It is clear that the Defendant knew she was being sued when she received the Writ of Summons on December 14, 1998. Additionally, subsequent settlement discussions continued between Plaintiff and Defendant through 1999, long after the thirty (30) day period for Sheriff service about which Defendant complains. (See Exhibits "A" and "B") Therefore, it is apparent that the Defendant was aware the Plaintiff was pursuing a claim against her and the machinery of justice was not stalled. Because this is not a situation where a Writ of Summons was filed after the two year statute of limitations.. which would be "on its face" untimely, there are questions of fact a1> to whether the Defendant was prejudiced by the lack of timely service by the Sheriff. For these and the reasons that follow, the Plaintiff respectfully requests that Defendant's Motion for Summary Judgement be denied. 3 "1 , '....... . " '.,' ."i"" '::'';'', :':.: .:":",:,,:,;,,,':'..:~::":"'~"~",::;.:~'~',':;':":':':".:.:~""':"'::':"'.. :,:~ '.:', ',~'\',~.,," .,,' " .' CERTIFICA TE OF SERVICE 1, Richard C. Sokorai, of the law firm of ABRAHAM, BAUER & SPALDING, P.C., do hereby ccrtify on the date shown below 1 did serve upon the below named individual(s) a truc and corrcct copy of Plaintiff's Praccipe for Argument, by placing said document in the United Stales Mail, First Class Mail postage pre-paid addrcssed as follows: Stcphen E. Geduling, Esquire Thomas, Thomas & Hafer Post Office Box 999 Harrisburg, PA 17108-0999 ABRAHAM, BAUER & SPALDING, P.C. By: li<-<" t ,.~,-l'7 <J;lCc(\~ Richard C. Sokorai Attorney for Plaintiff // ~; /. " , v DATE: (/.)..1.01 -11- . : '. ' .. ,: ~ .'::~..~ .f',: ,:-' c.'~' J;~~:'" ':';:, ;::~., ".::"i~.:",.:,', .:' :F "':~ ~'.<':">::.. ,~. " :.. :<.~~:, -.", " .' ",' .... ".. 2:: i....~ ..J ".~ ~ ("; ; ...r: ". .' ~ - . . I~ c_ , ::.J (7:) - ;;) (' : ,"- , , !.u , .! t1- , 1 , . ::.5 ~: ") U '. '. . ,~ ."-' , '. ,.., ." \ ,. . . ~ , ~ .....' , . ~\,' -: :l<<'~ i"" "","<'. ~"!Tf~~""'i\!P'\''''''''''''''l"..;;t..".t'''\I''')''lI'''''~'''''''''''l~~ ,......~~;.... "...,'" ,...,..........." "",-,...- ,'--" ,\.,. . . " " Ill'" .~ ,,' ..:', "J.-,T, ":"", ',', ''"'::'-, .:,." ;..~...:" .: ',':: .: ~ : :. '. ,'. . .... ABRAHAM, BAUER & SPALDING, P.C. By: RICHARD C. SOKORAI IDENTIFICATION NO. 80708 1600 MARKET STREET,32ND FLOOR PHILADELPHIA, PA 19103 (215) 569-9990 ATTORNEY FOR PLAINTIFF KRYSTAL WISMER COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION NO. 98-6970 JESSICA JOHNSTON PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S PRELIMINARY OBJECTIONS AND PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS I. PLAINTIFF'S PRELIMINARY OBJECTIONS And now, Plaintiff, Krystal Wismer, by and through her attorney Richard C. Sokorai of the law firm of Abraham, Bauer & Spalding, P.C., hereby objects and responds to the preliminary objcctions of Defendant and in support thereof avers the following: I. Dcfendant files preliminary objcctions to Plaintiffs Complaint maintaining that the stalute, of limitations has expired becausc Plaintiff did not properly scrve the Writ of Summons within the applicable statute of limitations. 2. The statute of limitations applicable to actions for personal injury is a waivia\}le defense and, therefore, should not be raised by preliminary objections, but should be raised by new mailer and a responsive pleading. See Farinacci vs. Bcavcr County Industrial Development Authority, 511 A.2d 757 (Pa. 1986); Bal1anus vs, Lis, 480 A.2d 1178 (Pa. Super. 1984). 3. Defendant jcssica Johnston's prcliminary objections are an improper method for challenging Plaintiffs Complaint on the basis of the two year statute of limitations for personal . , . . ,..:' >. . . '. :'.,,",' ," .,...' ,.',' ',...,' ',' ,:: ..::.~- '. ':',::"":' : ,:,<'::'"..: "~':::', ).. '...',..' :" ',:, ',':. ", , '.'.., preliminary objections to Plaintiff's Complaint. It is denied that the Plaintiff failed to make a "good faith" effort to timely scrvc thc Dcfendant with the Writ of Summons. WHEREFORE, Plaintiff Krystal Wismer respectfully requests that this Honorable Court deny the preliminary objections of the Defendant and Ordcr Defendant to file a responsive pleading to Plaintifrs Complaint within twenty (20)days. D"""4JJjlJ I ABRAHAM, BAUER & ALDING, P.C. /0v4 Richard C. Sokorai Attorneys for Plaintiff BY: '<" . ,',., " '< . .:....~ ',~" ;.:.t~':"<';'~', =: ".' :",:~"~:c:""'':''?~:'~'''.'''~:'~~~'''";c:'':\/'' '-::+....... ,'~..::--' ", ~':" ,': '.:" . '~~ ~' :"~'>"'" . ., : ' ~- >- l -" C"; ,~ '. ' . :.r" :.-} "[) ("; . - ,,~ d D 0 , 0.. -~j .' ':.:) U .- ,.() "..~ i ,- r-- - ". , , .~ , "' v:' _.} :; " ) ~~:!~' I-I.." ". .~! i ,", J ,)} , c' , ~i "'.. ~u ''',', j :~ '- ::) " Cl '-~:.' (..J '-6 ~ ~ t ~ ,~ ~ ~! i ~~ ~ :J ~ '~ ~ 1~1 , I I I , I I I , , I I , , , I Ol , I I - , <:;) I , , I , , , ," , I , , '" I , I , '" I '" I ~ I M I OJ I = I I , OJ I . .- , . M , , , .l:JN I H , >,'" III a ~: :~ , , ouo p. 0' Ul ..,. :r{ , ~::; 8 0 -", tIl 0 iE , ~ , I.Ll 8::: 0 E ~' '0 .~ , ~ ~ ~ ~~g '" ,- , 01 .", '" - , - :< u: . ~ '..., 0 OJ . 0 , rop. '8 ~ U "" N ~ ou I . a' , .... u' N' "" '" I I .-' i ~',..c; .. r-J. ~ r4 U) Ftl ou.c: II'l I "': , -"'A ou p Q1 ~ ~ . II'l I "', , rti~LB ....: 8 I I , " , u " '.... U:3: ~ , 00' , ..' '... , 8 ;>l '" 0 , ",0 I tIl '0 UlO '...' 611'l tIl .-< I I , i:'~ ,~ ~ ,'tj ul '" , 0 , o:;te~ , , I 0 , :>:N;J: ") rJ. >: , , , z , . , Stephen E, Geduldig, Esquire Allorney LO, No, 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Posl Offle.llox 999 H3rrisbllrg, Pennsylvania 17108 (717) 237.7100 E.Mail: _;:~:2-~X:.!..~~~~~.:~..']_~! Attorneys for Defendant: JESSICA JOHNSTON , , , , " .. :' .",.,.,,:i ~:':.~';,":::.,~',~.,:'.....,~\:,:::'."..'::'::,,::,:;!'''':''-:'.~'::':':',:~:,:'''.'''':~I>~:'''::::'''''',~: '.:.:'!': :<:.' ':'.' ',~.;, ,'.. ,,-: !,PYSTAL \~lSHr,p, Plaintiff IN TIlE COUPT OF' COHHON PLEAS OF' CUHBEPLAND COUNTY, PENNSYLVANIA v. NO, 9B-6970 CIVIL ACTION - LAW JESSICA JOHNSTON, D(~fendant PRELIMINARY OBJECTIONS OF DEFENDANT, JESSICA JOHNSTON AND NOW, comes Defendant, Jessica Johnston, by and through her attorneys, Thomas, Thomas & Hafer, and hereby preliminarily objects' to Plaintiff's Co!nplaint and ill Sllrport 1"hprpof avers the follOl'ling: 1. This case ari.scs OlJt 01 ~ luotor v8hic]c accident whi_cll occurred orl or nbollt Deccnlber ]6, 1996 ell) SR 1014, Qt or near the off ramp for Erford Road, in East Pennsboro Township, Cllrnb~'?rland County, Penn::;}'l vanj,d. :<. Plaintiff c~)mm'.~nc(~d t.lit~ Hjt}l.1.n dc~~ion by filillg d Praecipe:; for VJrit of ~)::rn:Yion:~ ,:Hjdin:.;t Dt-:.fc'nc..Lint en <Jr about Exhibit B PYS510 Page 1 Cumberland County Prothonotary's Office Civil Case Inquiry 1998-06970 WISMER KRYSTAL (vs) JOHNSTON JESSICA Reference No..: Case Type.....: WRIT OF SUMMONS Judgment. . . . . . : . .00 Judge Assigned: Disposed Desc.: _ _ _ _ - - - - - - - - Case Comments - ,. - -" -........ - ,... Filed. . .. . . . . : Time. . .,. . ., .: Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 12/10/1998 11:54 0/00/0000 0/00/0000 **.**************************************************************~.************** General Index . . . Attorney Info WISMER KRYSTAL PLAINTIFF CREAZZO RON 208 SOUTH BROADWAY WIND GAP PA 18091 JOHNSTON JESSICA DEFENDANT PO BOX 135 MCCONNELLSTOWN PA 16660 **"*******************************************************************'*********** * Date Entries * ********************************************-*********************************** 3/12/2001 4/12/2001 .. _ _ _ _ _ .. - - .. - .. - FIRST ENTRY - - .. - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTlON..WRIT OF SUMMONS ISSUED ---------------------------------------------------.---------------- PRAECIPE TO REISSUE SUMMONS BY RICHARD C SOLRAI ESQ -------------,._---------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: JOHNSTON JESSICA SERVED : 6/13/00 WRIT OF SUMMONS HUNTINGDON PA Costs....: $64.20 Pd By: ABRAHAM, BAUER & SPALDING 06/19/2000 --------------------------------------.----------------------------- COMPLAINT - CIVIL ACTION - BY RICHARD C SOKORAI -----------------------------------------------------------------,-- PRAECIPE FOR ENTRY OF APPEARANCE FOR STEPHEN E GELDIG ESQ FOR DEFT _ _ _ .. _ _ .. - ., - - - - - LAST ENTRY - - .. - - . - - - - .. - - - 12/10/1998 5/22/2000 6/19/2000 ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * ********************************~********~******~***************************.**** WRl:T OF SUM~10NS TAX ON WRIT SETTLEMENT JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 ---------------------..-- -----------.- 45.50 45.50 .00 ***************************************~**************************************** * End of Case Information . * ******************************************************************************** Stephen E, Geduldig, Esquire Attorney 1.0. No. 43530 Stephanie L Hersperger, Esquire Attorney 1.0. No. 76735 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237.7100 E.Mail: seq@llhlaw.col11 Attorneys for DeTendanl: JESSICA JOHNSTON KEYSTAL \~ISMEE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-6970 CIVIL ACTION - LAW JESSICA JOHNSTON, Defendant ANSWER WITH NEW MATTER OF DEFENDANT, JESSICA JOHNSTON, TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, ,Jes:3ica John:3ton, by and through her undersigned coun:3el, Stephen E. Geduldig, E:3quire, of Thomas, Thomas & Hafer, LLP, and. files the following Answer and New Matter to Plaintiff's Complaint: I. Denied pursuant to Pa. R.C.P. 1029(e). 2. Admit ted. 3. 4 . Denied pursuant to Pa F . C . P IO?'! ( c; ) . Denied pursuant to Pa . E C. P ]02 " ((-; ) . Denied pursuant to F',] . P.. c.~ P ] 0;' 'j ((:> ) . " J. 6. Dc\nied as 1c~9al c()ncJ\,;.'_:;j(~~!IS anti Ilur::ill(]nt tC) P,'i. H.C.P. ] 029 (e) . By way of furtll<.":"l l(:::::,r-":'ll:-;\''', ,jt ,'1.1 J t im('::,; Il\dtl'l'j ,1.1 VEIUFICA TION. I. Richard C. Sokorai, of the law firm of Abraham, Baller & Spalding, I}.C., slale that I am counsel for the Plaintiff in lheforegoing matter; Ihall am aUlhorized to and do lake this Verification: I am acquainted with the facts set forlh inlhe foregoing Reply to New Matter; Ihe faets sel forth herein are Irue and correct to the best of my knowledge, informatjon and belief and Ihal Ihis Verification is made subjecl to the provisions of 18 Pa. C.S.A. ~ 4904 relaling to unsworn falsificalionlo authorities. ABRAHAM. BAUER & SPALDING. P.C. B, aif Daled:~ ,,' ," ',,' '.,' ".~-"~. . .,"~'--'~.~~:'~'1'..- ....-'~~+i....j7--;.""~~'F-:,>'.~:-:. ...:'.":'l~.'!..I.,..,~,,.,-,,_ r:-""" ,._,r::--, .'. ,.',.... .":'~;~J. . l;l , : ':: KRYSTAL \~ISMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-6970 CIVIL ACTION - LAW JESSICA JOHNSTON, Defendant ORDER AND NOW, this day of 2002, upon consider:ation of the Motion for Judgment on the Pleadings of Defendant, Jessica ,Johnston, it is hereby ORDERED that Plaintiff's Complaint is dismissed, with prejudice. BY THE COURT, ------.------------ J. Distribution List: Attorney for Plaintiff Richard C. Sokorai, Esquire ABRAHAH, BAUER & SPALDING 1600 Market Street., 32"d Floor Philadelphii'J, Pennsylvania 1 n03 Attorney for Defendant Stephen E. Geduldig, Esquire THOMAS, THOMAS & HAFER Post Office Box 999 Harrisburq, Pennsylvania 17108-0999 "', "j,. ..:-:."~:.' :~""-.,." ~~4-! ~~:.11,>..~.,.) ~'f":;"',:"'.".-~ .:~~J....~.'j:.~.".."'':'':~~',<,~""c....:: .':: . .\~. .> .>~' ",0""' .~,.'" .' Slephen E. Geduldig, Esquire Allorney 1.0. No. 43530 Stephanie L. Hersperger, Esquire Allorney 1.0. No. 78735 THOMAS, THOMAS & HAFER. LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237,7100 E-Mail: ?eq@tthlaw.com Attorneys for Defendant: JESSICA JOHNSTON KRYSTAL WISMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-6970 CIVIL ACTION - LAW JESSICA JOHNSTON, The Honorable Judge Hess and Judge Guido ruled on Defendant's Preliminary Objections based on Plaintiff's failure to timely effectuate service of process with the statute of limitations on September 13, 2001. Defendant MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANT, JESSICA JOHNSTON AND NOW.. comes Defendant, Jessica ,Johnston, by and through her attorneys, Thomas, Thomas & Hafer, to submit the within Motion for Judgment on the Pleadings, and in support thereof, avers as follow~: 1. This case arises out of a motor vehicle accident which occurred on or about December 16, 1996 on SR 1014, at or near the off ramp for Erford Road, in East Pennsboro Township, Cumberland County, Pennsylvania. . ' ~ .,. ~'." .' "" ",' "' . . ,,' "_ '. ." I . .&.:.". . '. . _' \'.-".~ -n' If.,''''' :~""I\"""" 'J-~~.",;." f~"-'~~~t'.'*t'~'_'4-:......l.,!,""<;"I!' ~ <-'~:\~'~'W;;;:);'",,~ U'l'",'< "'-~.~ "\1' , ",,<> --:'1':::"11. 1'" " ",I' . ,.,"', \', I'.' :~' ,:-~': '.:: .',",::-,>,"',. :'~~,' ".. ..>. '~,~::.'.:_:." ":.....,\.~._"",...~~...~' \,:' , , 9. The reissued \~!:it of Summons loJas served upon Defendant. Johnston on or about June 13, 2000 by the sheriff. Se'" Exhibit ,"B". 10. Plaintiff then filed a Complaint on about March l2, 2001. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhi.bit "D." 11. Defendant filed Preliminary Objections to Plainti.ff's Complaint on the basis that said Plaintiff failed to properly serve the Writ of Summons within the applicable statute of limitations; Plaintiff opposed said Preliminary Objections. 12. After oral argument, on September l3, 2001, the Honorable Judge Hess and Judge Guido, entered an Order overruling Defendant's Preliminary Objections without prejudice to the Defendant to raise the matter of the expiration of the statute of limitations in an answer with new matter. A true and correct copy of the Court's Order" dated September 13, 2001, is attached hereto as Exhibit "E". 13. On or about October y) e_, 2001, Defendant filed an Answ(~r with New l~atter in loJhieh :311(' raised the affirmativ(, defense that Plaintiff failed to timely and properly serve the \~rit of Summons within the applicable statute of limitation;;, and that therefore, Plaintiff's claim "Ia:.> barred. 7\ true and correct copy cf 2Iej" encL:.int' s An:)'v~('r with New l1atter to Plaintiff's Complaint iD attdched hereto as Exhibit "F". 3 ~ '. ;" :~:~'\I'~ _":", ,~' ",~' ;'.:)'c. "",'. :/" ":_~, ~J,:;~,"''--:'''~.. , ~. ,,,,~, \-~'_.~,_.:_"~." ',,:;' \ r,..,_, . .:., :~. :"'_: ,'; ,'.' H. On or about Apri 1 15, 2002, Plai.ntiff filed a Reply to Defendant's New Matter. A true and correc.t. copy of Plaintiff's R"p] Y to D'o'fendant's Ne\ol Matter is attachE:d hereto as Exhibit "G". 15. The pleadings are now closed in the instant matter and the present }lotion for Judgment on the Pleadings is therefore timely before this Court. See Pa. R.C.P. l034(a). l6. In order to properly and timely initiate this action, Plaintiff was required to file a Writ of Summons or Complaint within the statute of limitations and effectuate proper service on Defendant within the applicable time period. Pa. R.C.P. 1007; Lamp v. Heymar!, 469 Pa. 465, 336 A.2d 882 (1976) . 17. In other words, pursuant to Pa. R.C.P. 401 (a) , Plaintiff was required to serve the Writ of Summons by the sheriff handing a copy of the Writ to the Defendant or the Defendant's authorized agent within thirty (30) days of filing the original Writ, or no later than January 10, 1999. 18. Plaintiff failed to comply with the Pennsylvania Rules of Civil Procedure which establish that original process shall be served wi thin the Commonwealth only by the sheriff. Pa. R.C. P.. 400. J 9. Fllrthennore, Uwre i $ no evidence of record of any effort by Plaintiff to effectuate proper service upon the Defendant prior to the expiration of the statute of limitations 4 or within the thirty (30) days allowed pursuant to Pa. R.C.P. 401. See Exhibit "B". 20. From Plaintiff's arguments in opposit.ion t.o Defendant's Preliminary Objections regarding this same issue, it is expected that Plaintiff will argue that t.he instant matter should not be dismissed because Plaintiff made a good faith attempt to serve Defendant and Defendant therefore was not prejudiced by the improper .and untimely service of process. 21. The argument that Defendant has not been prejudiced by Plaintiff's extremely late service of process is totally without meri t. 22. It is anticipated that Plaintiff will claim her "good faith" attempt at service was her Counsel forwarding a copy... of the Wri t of Summons to Defendant, Jessica Johnston, via certified mail, on December 10, 1998. 23. However, it is clear from the docket and the pleadings in this case that Plaim:iff did not make even one good faith attempt at service since she never attempted to have the sheriff serve t,he \11: it, by ha!,d, as required by the Rules of Procedure. 24. In fact, Plaintiff did not make any attempt whatsoever to ~3erVe the \1rit by sh,:riff, by hand, until one and .one-half years after the \1rit of Summons was originally filed with the Court Jnd al10gedly s0nt to DGfendant via certified mail. 5 , ", , ", :",' '\"\ ~' .' ::'-" , "":~,~' ,"",'~';'.~"'~"'';--:.~''.':''~ :',;"r1"'<"'~"".C::.";-"" ".~.,,,. ':, ",,4 ", ;':," ::. ., '::, "", was not filed, it \vas reasonable for Defendant to believe that Plaintiff \vas not qoing to be pursuing the case against her; this also is pviri'>ncpd by the fact th3t l'li1intiff then did not do anything, including even making an attempt to serve the \'Irit, until about a one and one-half years later. See Exhibit "B". 29. Any reasonable person, including Defendant in this case, would believe that Plaintiff did not intend to pursue a possible claim when not properly served within thirty days. 30. It would be even more unreasonable for a person, including Defendant in this case, to believe that the Plaintiff intended to pursue a possible claim after one and one-half years pass without any proper attempt at service by the Plaintiff. 3l. Defendant was clearly prejudiced by the delay in proper service since Plaintiff's inactions demonstrated and lead Defendant to believe that sh~ would not be pursuing a claim. 32. It is contrary to the purposes of the Pennsylvania Rules of Civil Procedure regarding service of process, Le to prevent stale claims and unfair surprise and prejudice, to al101_ a defendant to be indefinitely subject to a lawsuit, such as in the instant matter. 33. It is clear from the Pennsylvbnia Rules of Civil Procedure and case law 'interpreting same that the filing of the l'lrit in this case did not toll the statute of limitations since 7 Dec-14-98 04:29P . . P.03 PA 16660 . '~ ~ q6 O~ t.i(\.'1 1P~? Ul I (1'- v ~(il UW' f;AD ~Up~~.d; PLEAS OF CUMBERLAND COUNTY, PEHNSYLVlll)r~.J C:rvrL DIVISION /;,.J: rt" i NO' 9H970 ~.- ,sr~r' ) 1 ) ) ) ) ) ) ) ) IN TEE. COURT OF COM1~ON KRYSTAL WISHER 208 South Broadway Wind Gap, PA 18091 V5. JESSICA JOHNSTON .1'.0. Box 135 McConn..1lstown, DESIGNATE IF CA! TO THE .l?ROTEONO' Issue sum.'T X t'~rit of Si Attorney/Sheri DA-:=: /-1..( 4'1'(- Plaintiff. Defendant . J\~~ ... ..;.~ :':-, , '."71 r- ....rJ .:... "\'..' YvB.~ ~. ~ . . .' ./; ;;~ . ~, I . ('") .. . :.".;r.., :..:~ :r, :-~. ....-: '" ..J -;; PRAECIPE FOR SUMMONS --."'TnN': YES , NO_X_ I --a 0 <? 8' ~f..{IJ ~ jq /2'" oJfftll ~ 5 )'IJ'~ ,!5/0"b (610) TELE.PHONE NO.' 59610 SUPREME COtmT ID NO.: 559-0690 '" rl~ ~: . l,; ~ { I I l " .1 ill rt. :J; I:' !~ . L I. ! I PYS510 .- ',1998-06,970 , ' Cumberland County p):.otljonotary.' s urr Ice Civil Case Inquiry . . . ~.\ 'I. :O-"':J'" .:. WISMER KRYSTAL (vs) JOHNSTON JESSICA ,," Reference No. . : Case Tyoe.....: V1RIT OF S\JI'IMONS Judgmen\:. . . . . . .00 Judge Assigned: Di sposed Desc. : u__"_______ Case Comments __________u_ Filed........ : Time... .. . ...: Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 12/10/1998 0/0076666 0/00/0000 ******************************************************************************.** General Index Attorney Info WISMER KRYSTAL PLAINTIFF CREAZZO RON 208 SOUTH BROADWAY WIND GAP PA 18091 JOHNSTON JESSICA DEFENDN~T PO BOX 135 MCCONNELLSTOWN PA 16660 *****************************************************,*************************** * Date Entries * *****~.************************************************************************** 12/10/1998 5/22/2000 6/19/2000 3/12/2001 4/12/2001 4/23/2001 4/30/2001 4/30/2001 5/24/2001 9/13/2001 10/22/2001 4/15/2002 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- PRAECIPE TO REISSUE SUMMONS BY RICHARD C SOL~~I ESQ --------------------------------------------------------.----------- SHERIFF'S RETURN FILED Litigant.: JOHNSTON JESSICA SERVED : 6/13/00 WRIT OF SUMMONS HUNTINGDON PA Costs.. ..: $64.20 Pd By: ABRAHAM, BAUER & SPALDING 06/19/2000 ------------------------------------------------------------------- COMPLAINT - CIVIL ACTION - BY RICHARD C SOKORAI ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE FOR STEPHEN E GELDIG ESQ FOR DEFT, . -----------------.-------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANT JESSICA JOHNSTON - BY STEPHEN E GEDULDIG ESQ FOR DEFT PLAiNTIFF~S-PRELIMINARy-oBjEcTIoNS-TO-DEFTS-PRELIMINARy-oBjEcTIoNS- AND PLAINTIFFS RESPONSE TO DEFTS PRELIMIN1\.RY OBJECTIONS - BY ~~~~~~ _ ~ _ ~~~~~~ _ ~~9 _ ~~~ _ :~:::: _ _ _ _ - -.. - - - - - - - - - - - - - - - - - -- - - - - - - - - - -- PRAECIPE FOR LISTING CASE FOR ARGUMENT - PLFFS PRELININARY OBJECTIONS OF DEFT - BY RICHARD C SOKORAI ESQ FOR PLFF --------------------------------------..-------------------'--------- PRAECIPE FOR LISTING CASE FOR ARGUM~NT - DEFTS PRELIMINARY OBJECTIONS lU~D PLFF'S PRELIMINARY OBJECTIONS TO DEFTS PRELIMINARY OBJECTIONS - BY RICHARD C SOKORAI ------.------.-----------------..------------------------------------ ORDER" DATED 9/13/01- IN RE DEFENDANT'S PRELHIINARY OBJECTIONS - FOLLOWING ARGUMENT THEREON THE PRELIMINARY OBECTIONS OF THE DEFT . ARE OVERRULED WITHOUT PREJUDICE TO THE DEFT TO RAISE THE I~TTER OF EXPIRATION OF THE STATUE OF LII~INTATIONS IN AN ANSWER WITH NEW ~ATTER - BY THE COURT KEVIN A HESS J COPIES V~ILED 9/13/01 . ----------------------------------------------------------------.--.- ANSloJER TO NEloJ MATTER OF DEFT JESSICA JOHNSTON TO PLFFS COMPLAINT - BY STEPHEN E GEDULDIG ESQ FOR DEFT --------~,---------------------------------------------------------- PLAINTIFF'S REPLY TO NEI'/ MATTER - BY RICHARD C SOKORAI ESQ FOR PLFF . - - - - - - - -- - - - - - LAST ENTRY - - - - - - - - - - - - - - ******..*~*..**.*********************************************************-******* *, Escrow Information * . Fees [. DebIts Bee Bal ?vmts/Adi End Eal * ******************.*************~***..*~*'******f******************************* \oJRIT OF SUMI'IONS TAX ON I..RIT SETTLEI~ENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 Stephen E. Geduldig, Esquire Attorney 10. No. 43530 Stephanie L. Hersperger, Esquire Attorney 1.0. No. 78735 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17\08 (717) 237.7100 E.Maii: .seq(ci)tthlaw.com Attorneys for Defendant: JESSICA JOHNSTON KRYSTl'.L ~nSI'lER, Plaintiff IN THE COURT OF CO~U10N FLEAS OF CUll,BERLAND COUlnY, PENNSYLVHH.l>, v. NO. 98-6970 CIVIL ACTION - LAW JESSICA JOHNSTON, Defendant ANSWER WITH NEW MATTER OF DEFENDANT, JESSICA JOHNSTON, TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, JeEsica Johnsto~, by a~d through he::: undersigned counsel, StephEcn ~ Geduldig, Esquire, of Thomas, Thomas & Hafe:::, L1P, and :iles the following p.nS\oJer and New'Matter to Plaintiff' S CC~Flai~t: l. Denied pu:::suant to Fa. F~. C. P. l029 (e). ~ Admitted. 'R :.c0rG-ss' \s "-. 3 . Denied purs\.~ant p ( clWr., \~ uJ r<<8 I. c(1 \rl is k -tv 4 . Denied pu~ SlJar~t d.(l~ . . 5 . Denied pu~:suant t 6. De="1ied as }J:qc~l CC1J.-:-:l.;::~'::,>:1~: and F\.::~:t':'2,lY.':' ',~_c r',:::. F.e.? 1029 (;:-.) . Ey ,\,:3.:/ cf f'~::~: l'i\:;'.r re. :?,T~ " . ~ ,- '".1 , ,..'- ,~: l. J t ::-';:.- ::::1(';'.' ':~. r :. t; 1 hereto, Defendant, Jessica Johnston, acted reasonably 6n(~' with due care under the circumstances Ll1en and there existing. 7 (a) - {i). The avel:rnents cont,;1in!~d in thi;:-, pa.raf~raph and subparagraphs are denied as legal conclusions and pursuant to Pa. R.C.P. l029(el. By way of further response, at all times material hereto, Defendant, Jessica Johnston, acted reasonably and with due care under the circumstances then and ~here existing. 8. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e). By v.1ay of fu!.-ther response, at all times material hereto, Defendant, Jessica JOhlls~on, acted ~easonably and with due care-under the circumstances then and there existing. 9. Denied as legal conclusions and pursuant to Fa. R.C.P. l029(e). By way of further response, at all times material hereto, Defendant, Jessica Johnston, acted reasonably and with due care under the circumstances then and ~here existing. 10. Denied as legal concll~s.ions and pursuant to Pa. R.C.P. .1029(el. By way of fu=ttler respc~se; at. all times materi~l hereto, Defendant, Jessica Jollnstoft, acted l:ecsQnably and '\~'ith due care undl2-r the ci=cu:1~st2:nces thcn and :he::-e e:.:i.sting. \rJHEREFOFE, Defendarlt, Jes.s i ca ,-Johnston, r1aspect :ully ~eq~ests that ?lain~iff's Cc:~~1.~i:1t b~ dismi~2~d irl its entirety a~d jUdq~El1t entered i~ l'le! f~~~::. " , ,:' .<':, : :;. :,~":::,'."..:"",;':':'~:\" ."'<::",t<~:'.;:r"'::'''.''''''''':~~',</': '.>:'.:':.::--:','::' , ." ':' :....'~."".. '~ . ,....,.' . 19. F.t all times materi.al .:)~reto, Def~~:nda.)~:~:, ch:s.sica Johnston, a.cted 're'C1.sonably onel h'i.th dtH': carr:: undi::r t!.j(~ circumstances then and the~e exisriJlQ. 20. It is specifically denied that 311Y ac~ cr omission on the part of Defendant caused or contributed to any of Plaintiff's alleged injuries or damages. 21. Plaintiff's claims a=e barred ~nd or limited by her failure to timely and prope!:ly reissue the 1~'ri t of Surmnons pursuant to the Pa.R.C.P. and by h~r iailur~ tc effectuate proper original service on Defenda~t, Jessica Johnston,pu~suant to Pa. R.C.P. 400, 401 and 402. 22. Plaintiff's claims are barred by the applicable Statute of Limitations.' WHEREFORE, Defendant, Jessica Johnston, ~espe~~fully requests that Plaintiff's Complaint be dismissed in lts entirety and judgment entered in her faver. Respectfull~l sutnlitted, THOMAS, THOMAS &I~FER, LLP Bv: -frl~~~~D~~?-- At:o=ney 1.0. l~c. 43530 STSFH7~~'~TE L. J1EF;SFER(:EF, ESC,tJIF:E Attc~~;e~' I.D. !~c. ~87,35 A:t~.r~0)'S fc,r D~f01.;d6::t, JESSICA JOHllSTOll ., ,. , ': .~,: ':",.:<:<,'~"':(} ':'~'."':':":':"~"':":':"~':"::':~";:"d";":'/':'-,':",.'":",,,;::, ,~:':;: ','.'" ,~">'. ,',',:' ,,";':,,~:>\,: ,':, ' VERIFICATION Subject to the penalties of 18 Pa. C.,S.A. 04904 relati11g to unsv:orn falsification to authoritit~s, I' herel:y certif,y :hat I have acq\Ji:.ed knoh!l~=dge or r~he alleged facts and circumstances giving rise to this claim and am authorized to execute this verification on behalf of Defendant, JESSICA JOHNSTON; and further, that I have provided the answers set forth in the foregoing document based upon that knowledge a~d the answers set forth herein are true and correct to the bes~ of my k~owledge, information and belief. DATE: 10 1/'7/ (] I . A-h--.,~ :;24/ ~1f.E1. HERSPERGER~ '. . , .. . " ....\-'1 ~ _"-;3t'''',,'',::' >,...."f:'\" :+',~~"'~'~~'1.!:,:'.' .', ..;:......-::" '_,".~ ",'.':.10'\\ .'.... ~'Ir',~':.,:'"~>.".,,,,., . """ >'~~_ ::,'L. .~":" .' CERTIFICATE OF SERVICE I h(.reby c(?rtifj' t:l:,_;~t ,3 tr-:JI." and corr(:ct (:c:py c.d.: t.he fo)~eg~::,'in9 O(JcllITler;.t hfc.S s.::,~-v,:d Ly df:-'positin-~ thr.:: san:!? i.n th(; United Stat(;,s !.jai:i., pCJ3tag0 pr(~rlr:dd, at I'L:Jrri~;;b~~.r'g, '.1. '.. .I .'/ Lf..;.. di'~'" c,.f 0,",,1-0h(:1- "DO' o'n _...!___~__ H' - '-,~ 1_, -, ....~ .., all pennsyl ~v'ar:ia, on the counsel 0: r~cord as follows: Richard C. Sokorai, Esquire ABRAHAM, BAUER & SPALDING 1600 Ma~}~et Street 32r.d Floor Fhiladelphia, Per:nsylvania 19103 Attorneys for Plaintiff THOl~S, THOMAS & HAFER, LLP !I~~~~J-ft~r- ~.=pn~n_e ~. Ae~~pe_ge_, Esgul_e :128323,' . " ..~ '~.::'v:.:,.:..,,: "',,~:;! ','~./ ","";~'~"""~"\.'''~~':'"'N''";;',~~".~\''~:~''.'''T:~~i':~~: '~'f,t: ~,~~,v~:"'\~.'"'''' ,'~ ".. \. ":" ':"'.. ......" '", ~ " ., '.' I :.J , . \ ~ - "'-"""'''fu:~' ,e:T.;rr-." .... , , ". '- .::::;1' \', " \~ 'l ::'I'"1""~")~'~'~_'l--!,-,\"~.;,,:..t"",\,~,,,~~'hf"";j;"~""""""""l'lfo"'"""..~;t.:'11"''''~''''''-';J!'I "~"~~..."~>,,,,,,,,,,.,....,,,.. ,." , . .C....,,, .~..:'-.'. ': .' .,'P','" .>....,':~.:...':':~ ..:....:.,..... ....: ':~".':.<:., . " , 14. On or about April 15, 2002, Plaintiff filed a Reply to Defendant's New Matter. A true and correct copy of Plaintiff's Reply to Defendant's New Matter is at tached hereto as Exhibi t '\(.i" . 15. The relevant pleadings are now closed and discovery. has been conducted regarding the issue of this !>10tion for Summary Judgment. ~ee Pa. R.C.P. 1035.2. 16. In order to properly and timely initiate this action, Plaintiff was required to file a Writ of Summons or Complaint within the statute of limitations and effectuate proper service on Defendant within the applicable time period. Pa. R.C.P. 1007; !:9..111P_ v . _,Ii<Oy'm~E ' 469 Pa. 465, 336 A.2d 882 (1976) . 17. In othel' words, pursuant to Pa. R.C.P. 401 (a) , Plaintiff was required to serve the \~rit f' Summons 12Y..~.,t. he 0_ !3heri_u... handin.9__a cop.Y--.2Lth~~c~_t::.'? the Defendant or the Defendam:' s authori zed agent wi thin thirty (30) days of filing the original Writ, or no later than January 10, J999. 18. Plaintiff failed to comply with the Pennsylvania Rules of Civil Procedure which establish that original process shall be served within the Commonwealth only by the sheriff. Pa. R.C.P. ,,00. 19. Furthermore, there is no evidence on the docket of any effol:t by plaintiff to effectuate pl:opel' service.' upon the Defendant prior to Lho expil'atiol1 of the Gtatute of limitations 4 ,. serve the Wri t of, Summons in accordance wi tl1 the Hules of. civil Procedure b",ca\lse during the deposi t:ion of Defendant, Jessica Johnston, it was revealed that she had an idea that a claim had been filed against her when she received the Writ via mail in December of 1998 and could not testify to any specific ways in which she was prejudiced or harmed by the improper service. 24. Plaintiffs further are expected to argue that there was no prejudice to Defendant's insurer because it was made aware of the Writ and had been in settlement negotiations after the Writ was filed. 25. The argument that Defendant has not been prejudiced by Plaintiff's extremely late service of. process is totally without merit though. 26. It is clear from the docket and the ple~dings in this case that plaintiff did not make even one good faith attempt at service since .::3)~_!1_c:Y'e_r-,_a~ l::empLed .to have , . t.he sheriff serve the \oJr~..s.~Y..l1~~~, as requ i red by the Rules of Procedure. 27. In fact, Plaintiff did not make any attempt whatsoever to serve the Writ by sheriff, by hand, until one and one-half years after t.he Writ of Summons was originally filed with the Court and allegedly l3ent t.o Defendant via either regular or certified mail. reguJal'm.lil. A true and C'OlTec:t copy of JeG::dca JohnGton's deposition tr..anDcLipt jn attached hen..~to 3nd m:uKed as Exhibit "H". .-------.--------.--- 6 ,.: .", :'.:' ,", . ".: '.. ': ~':',.,: ::..):'..:~'~.:.,.,.:,>..,'.:'... .;....:-...:....:.,.:'.~: .-:~':'.: ~..:. ,,: 28. Waiting one and one-half years after filing the original Writ of SummonS with the Court to even attempt to properly serve Defendant with process by a sheriff clearly demonstrates that plaintiff did not make a good faith effort to properly serve Defendant with the Writ. 29. Just as importantly, even if Defendant had actual notice of the possible claim by Plaintiff because she received a copy of the writ via regular or certified mail, this does not cure the prejudice to Defendant of plaintiff's failure to properly and timely serve the Writ. 30. As discussed in the case Wi ther:~p_~<?~_'y_,-_Si.t.y- of Philad!:l:.Pl:ia, 768 A.2d 1079 (pa. 2001), it is prejudicial to a party to have to be subject to unending risk of suit. See also Ferrara v,.,Ji.,?,ovEOE, 431 Pa. Super. 407,411, 636 A.2d 1151, 1153 (1994) (explaining that the defendant has a reasonable expectation to assure that once the statute of Ilmitations has run the defendant no longer should shoulder the burden of possible litigation); 13~~~_~~..J:;]}.~!a_t:~.,~ns~.J;aJ?~~~_C2:' 46 Pa. D &C4th 219, 223-224 (CCP Chester Co. 2000) (noting that a defendant has a reasonable expectation that once the statute of li.mitations has run, he should not longer bear the possibility of lit.igation). 31. In other VlOl'cts, even though Dl,fendant arguably had actual notice that a writ had. been filed, when proper sel"vice 7 .- -. -.1lI11'l1l .11. III '. !III ... --- 11- Il\lI II .. :....-. II/l BIll -1 .. II .,:.... 1II11111111'" 11III III IIllIIl -- .-11 I ~ . .11II - -. --.. ........ 1IIl. < Respectfully submitted, 11III I ... .. 1IIlB'II. 11- .... 11III1 I II .. 111I .11I11I : I II II III 1_- .. 11II .." 11I11III II'.. 11II .. ... II _.1.. I III I III\lIIIIIIIII -- .. .r .-. 1...-11I .. 1111I 11IIII 1111I- .. .II~ _fa Ii . IIJ'......; . ...... ...... .. .. I. II. I' . ... - ...11I.. i' . II.... ..i..I..... . ...11I. III ..... ......_. II Judgment and dismiss Plaint if f' s Complaint, with prej udice. By: A-f7~/ ..:L..2hL~/7 STEP~E. GEDULDIG, ESQ~- .~ Attorney I.D. No. 43530 STEPH.~IE L. HERSPERGER, ESQUIRE Attorney I.D. No. 78735 111I _1I'Il' .-. .. I 11IIII THO~~S, THOMAS & HAFER, LLP Attorneys for Defendant, JESSICA JOHNSTON . .1 ..I ..1 11I1111 .11 .- .... . 11- _. -- - -: ... ... .. .... B.. I; II -- II I-!I III..' II II!. . -- DATE : ..Le..bb7~ 10 .. . ~ , ...' ~'~:"~':"'" ~'N." ~\ ~~' ~,_ .";.:.1' . . .:.... ........... ' . . ,,~.s"'*\';j~, ,"'lj' :e'.,''. t;1.,~.f1"'\!""-""~"'-1'''''~''~'''''''1l'''''' \",.._~..".....,,,,-<-,,,,~,>..---> ""~' ';:to-.., '. . '...:."....~ >:--:\......::..~> .:.:.:.: :.:'.' :.' ~:: ':.., .::'....,...:....>.,..~.....: '; ':.:': .:.(,.....:,... D~c-14-98 04:29P P.03 IN THE COURT OF COMMON PLEAS OF CUMBERLAND CO~rY, CIVIL DIVISION l?la.i.n-tiff ) NO.; ) ) ) ) ) ) ) ) ) ) ) ) ;1~ JJ~ " .. . ;..;'~ - :';, " ::1 r- , "I" , :~~ . .- - 0 . r:'., : " .' '.' 'f. , ~I' ( , . r"; , :.;; :'1 ~~'J ..!, ... o.J - KRYSTAL WISHER 208 South Broadway Wind Gap, PA 18091 V5. JESSICA JOHNSTON P.O. Box 135 McConne11stown, FA 16660 Defendant PRAECI~E FOR SUMMONS DESIGNATE IF CA! --... "'Tfn: : YES , NO_X_ Issue sumrr .s-. .Il1llJl./ / (). 0983 r1 ..J<J r &!Iq !z.cJ1Jl I} ~~ j .j1 .. /-101) J, RJJlv. . . :J J11(c . .... TO THE PROTBONO' X Writ of Sl Attorney/5heri DA':::: ---1--:j.?hr (610) TELEPHONE NO.' 59610 SUPru:;ME COURT ID NO.: 559-0690 fJJ'" I., , ~"S-' 0 j....'t .,t:' r ::>!.l. I ' , 1'~1998-w370 i " , I Reference No. . : , Case Type.....: vlRIT OF SUMMONS Judgment... ... .00 "Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Cumberland County Civil Case Prot0onotary's urr1ce Inqu1ry , ".\ ' , ' , t'"a~t::: J. WISMER KRYSTAL (vs) JOHNSTON JESSICh Filed. . . . . . . . : Time. . . ..... .: Execution Date Jury Trial.... DiSjJosed Date. Hig 1er Crt 1.: Higher Crt 2.: 12/10,/1998 11: 54 0/00/0000 0/00/0000 **************************************************************~***************** General Index Attorney Info WISMER KRYSTAL PLAINTIFF CREAZZO RON 208 SOUTHBRO~~WAY WIND GAP PA 18091 JOHNSTON JESSICA DEFENDM,T PO BOX 135 MCCONNELLSTOWN PA 16660 ******************************************************************************** * Date Entries * *******************************************'***********************,***********~**. 12/10/1998 5/22/2000 6/19/2000 3/12/2001 4/12/2001 4/23/2001 4/30/2001 4/30/2001 5/24/2001 9/13/2001 10/22/2001 4/1512002 - - - - - - - - - - - - - FIRST ENTRY - - - - _ - - - - - - _ _ _ PRAECIPE FOR vlRIT OF SlJMMONS IN CIVIL ACTION-l~RIT OF SUMMONS ISSUED, ------------------------------------------------------------------- PRAECIPE TO REISSUE SU~~ONS BY RICHARD C SOLRAI ESQ ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litiqant.: JOHNSTON JESSICA SERVgD : 6/13/00 WRIT OF SUMMONS HUNTINGDON PA Costs....: $64.20 Pd By: ABRAHAM, BAUER & SPALDING 06/19/2000 ------------------------------------------------------------------- COMPLAINT - CIVIL ACTION - BY RICR~RD C SOKORAI ----------_.~------------------------------------------------------- PRAECIPE FOR ENTRY OF APPEA~.NCE FOR STEPHEN E GELDIG ESQ FOR DEFT ---------------------------------------------------------.---------- PRELIMINARY OBJECTIONS OF DEFENDhNT JESSICA J'OHNSTON - BY STEPHEN E GEDULDIG ESQ FOR DEFT ------------------------------------------------------------------- PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFTS PRELIMINARY OBJECTIONS AND PLAINTIFFS RESPONSE TO DEFTS PRELIMINARY OBJECTIONS - BY RICHARD C SOKORAI ESQ FOR PLFF ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR hRGUMENT - PLFFS PRELININARY OBJECTIONS OF DEFT - BY RICHARD C SOKORAI ESQ FOR PLFF -----------------------.---------------------------------------~---- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY OBJECTIONS AND PLFF'S PRELIMINARY OBJECTIONS TO DEFTS PRELIMINARY OBJECTIONS - BY RICHARD C SOKORAI -------------------------------------------------------~----------- ORDER - DATED 9/13/01 - IN RE DEFENDANT'S PRELIMINARY OBJECTIONS _ FOLLOWING ARGUMENT THEREON THE PRELIMINARY OBECTIONS OF THE DEFT ARE OVERRULED WITHOUT PREJUDICE TO THE DEFT TO RAISE THE MATTER OF EXPIRATION OF THE STATUE OF LIMINTATIONS IN J.\N ANS1~ER l~J;TH NEI~ lolATTER - BY THE COURT KEVIN A HESS J COPIES I~.AII,ED 9/13/01 --------------------------------------------------------_________R__ ANSWER TO NEW ~mTTER OF DEFT JESSICA JO~~STON TO PLFFS COMPLAINT _ BY STEPHEN E GEDULDIG ESQ FOR DEFT PLAINTIFF ~ S -REPLY - TO - NE1~- ~1ATTER - = - BY - RICHARD - C - SOKORAI - ESQ - FOR - - - -- PLFF - - - - - - - - - -, - - - - LAST ENTRY - - - - - . _ _ _ _ _ _ _ _ .***.*.'********************************************~**************************** * . Escrow Information _ , * Fees & Debits BeQ Bal Fvmts/Jl.di End BaJ. . ****.**********************~**~*~********~******;*~*******.***,*,*************,- l~RIT OF S1.l11,l.jONS TA..X ON NRIT SETTLE1.jENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 ------------------------ ------------ EXHIBIT 0 'j KRYSTl',L \HSMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-6970 C1VIL ACTION - LAW JESSICA JOHNSTON, Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States l~ail, I /rt::: ofPrnL470:!Jt Harrisburg, Pennsylvania, on the 2002, on u all counsel of record as follows: Richard C. Sokorai, Esquire ABRAHAM, BADER & SPALDING 1600 Market Street 32nd Floor Philadelphia, Pennsylvania 19103 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP / Y-L,j/liL itc( LIJL II/..k. U{ I ,- ,I 1 Stephanie 1. 'Hersperger, Esquire :128323,1 . ;' - " : ,'. :;:,:1,;;',: "" '::"~A;...~~~'e':'~.,r~\"r':'~'~:""~:~"":H"''':":::' .,,,~~~,<,,.,,^.'t"~"'~", :';"" " ":,.,. ,," "':">, ,: ': " :, ': " ,..') - , I . , . , .,. . .. " ' . , " " ,'. '. .~," ~ '. :", .- ',~ ' . " \~. . ~ ,':e,,'" '. . . Exhibit H COURT OF COI,jHON PLEAS Cut-lBERLAND COUNTY, PENNSYLVANIA KRYSTAL l'1ISNER, PLAINTIFF VS NO. 98-6972 JESSICA JOHNSTON, DEFENDANT DEPOSITION OF: JESSICA PAYNE TAKEN BY: PLAINTIFF BEFORE: HELENA L. BOWES, RPR NOTARY PUBLIC DATE: SEPTEHBER 13, 2002, 10:30 A.H. PLACE: 9236 U.S. HIGHWAY LEWISTOWN, PENNSYLVANIA APPEARANCES: AB~JUU1, BAUER & SPALDING BY: RICHARD C. SOKORP.I, ESQUIRE FOR - PLAINTIFF THO~L~S, THO~~S & HAFER BY: KIMBERLY A. BOHLE, ESQUIRE FOR - DEFENDANT GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 " . ,',',.'"" :.:0:::', '''':~!'''':'h:,..",:,~,:":,,,c;~':':'''::~~~~,''''''':'>...J.....,_,~.,..:.:':'_', ',:; ,'~:..~:.:, ,,:,,:-~:, :":"',' , ,::, 1 S'l'IPULATION 2 It i.s hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certifi.cation and filing are waived; and that all objections 5 except as to the form of the question are reserved to the 6 time of trial. ,7 8 JESSICA PAYNE, called as a witness, being 9 sworn, testified as follows: 10 11 (Documents marked as Payne Exhibit Numbers 1 12 to 5.) 13 14 DIRECT EXM1INATION 15 16 BY MR. SOKORAI: 17 Q My name i.s Rich Sokorai. I represent Krystal 18 Wismer, and I represent her with respect to injuries that she 19 had in a car accident way back on December 16th, 1.996. Do 20 you remember that day? 21 A Yes, somewhat. 22 Q First of all, can you tell me where were you 23 goi.ng that day? 2~ 1> \~e were going to the mall. I'm not quite sure 25 which mall we vlere headed to. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 3 : "', .."~. ". ~ "'~:"'F":"~;' "":"' ':'~':~'~'''''':''"~~'''~~~~~~~'''~'':; ."::': ,~.~ .,\.: ,',!~"" :', :.,' ";,' " . .', ',: ..~7: : ':~'.'" '..;' '.. 4 1 Q Wet"e you friends? 2 A Oh, yes. 3, Q How long had you known each other? 4 A We had just met when we started school, I 5 think it would have been October of 1996, when we moved in as 6 roommates. 7 Q What school was that? 8 A Central Pennsylvania Business School. 9 Q Do you still talk to KrystaI now? 10 A I haven't heard from her since she got 11 married. 12 13 14 Q That was about a year ago, I guess. A Yes, I think so. Q But there was no argument or anything that 15 ended your friendship? 16 A No. I mean I was invited to her wedding, 17 which I couldn't make; but I've moved since then and new 18 phone number, she might not even know. 20 Q the mall? A Q A Q A As in directions? 21 22 Yes, directions. 23 I can't even remember the way we were going. 24 That's okay, .;e'll narrow it down. 25 I knQ'..; that I was headed towards 11/15. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 , . , ,.' , ,,"\ ~"~;;;'::I\' ~;,~ ,.;' ,.,',;,; 1O~!." ","< 1j.;j,"-'''''"i:...-t1.,.,...~,'~?-,MiIJ\.~JM;I;__.\.~~ "..,. ~i4,..,....,.,." "-\~- ., - ..->-.... '". \ "~ ........- __'" ~.<; . . - ',:.. ~." ~~ . ,"',...."."~" 4".~-' ,Of' . .... :,.,."' ~"",.,..:. ~.': ^."','.\~I_ ",} .',:" ,,0':" .:. ..,~' \,. 1 towards like the Camp Hill Shopping Center 2 Were you on Route 1014? Do you know \~hat road Q 3 you were on at the time of the accident? 4 All I know is that there was the Erford Road 1\ 5 exit. 6 You were approaching the Erford Road exit? Q 7 Yes, I think that's approximately where it A 8 happened. 9 And that's an off ramp there? Q 10 11 A Yes, Q The road where the accident happened, how long 12 were you on that road? 13 I couldn't tell you, maybe approximately two A 14 miles. 15 How did you get onto that road? Did you have Q 16 to turn onto that road? 17 18 Yes. The road that I had turned off of is A the I can't even remember what road it is. It's the one 19 running along the river. I can't remember if that's 11/15 or 20 not. 21 This is in East Pennsboro Township? Q 22 A I think so. 23 \'i'hat I'll do, 1'11 just show you the police ,Q 24 report that we have marked as Payne Number 4. 25 A Okay. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 5 , ":"- 7" ,l'r1-: 'f \,.,,.,-~ ~l(,~.i~"". ,'~'--"r""~;"""", ,,,,~""~,,~~:",..,.~m;,,~""'~-~-~~ ~~.'~'"I~"" "" .-........-"~ l..- ."~ .,4..~..":,." . to \. '" c ." . ,', ~.': ~' ' ~, ,,).,' ,,'..., n. ,1,\',.,-',' \. ~":'"'' " ," :' ,.., r' .~',' ' 1 2 Q Is Payne your married name? A Yes. 3 Q And I have a diagram on here, and it just <1 indicates that the cars were on state road, I guess that is, 5 1014. 6 A Uh-huh. 7 Q And then it indicates 011 the front page that 8 you were approaching the intersection for Erford Road, The 9 cross street or segment marker was Erford Road; is that 11 10 right? 12 A Yes. Q Does that diagram kind of accurately reflect 13 where you were at the time of the accident? 14 15 16 17 A Pretty much. Q As best as you can recall? A Yes, I'm pretty sure. Q When you were getting on this road where the 18 accident occurred -- we'll call it 1014, okay -- was it an on 19 ramp to get onto that road or did you stop at a light and 20 make a right? If you recall. 21 A I can't r'emember. I haven't been up that way 23 22 forever. Q You said you vlere on the road approximately 25 24 two miles before the accident occurred. A Yes~ 6 .' ,..,...':,....'~;.':'.'"',',:"~'co:; :<""J:'1~.;~":~~;~::':~~~~~'"\:~;"'" :,~.,~' _ :"'~-~':''':'~>:', "'.'. '.> .<=.1"<\::-' ",' ", GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 . iIIo' 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2.1 25 14 Q A Q A Q showed up? A Q A Q A Q A Q Standing off to the side of the road. How did you feel at that time? Stunned. Were you in any pain? No. Were you bleeding? No. The cut where you said was a quarter size up on your upper forehead -- A It was more like a scrape. It wasn't --it wasn't deep cuts or anything. Q How about Krystal. can you tell me what her injuries looked like, if any? A She had cuts all across her forehead. Q Vlere they bleeding? A Q A Yes. Can you describe the appearance of the cuts? I don't know -- \~hen I first saw her. no. because there was blood and it I"as dark out. I didn't GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 16 1 A They told us tha tit was because of 2 precautionary reasons by the sounds of what they said to us, 3' because I didn't feel that I had any injuries that needed to 4 be taken care of by a doctor. 5 Q Where did you go? 6 A I don't remember the name of the hospital. 7 It's right up the road. S Q 'rhat' s okay. You went to the hospital? 9 A Yes. It's right up the road from where the 10 accident was, It wasn't too far. 11 Q Did they do anything for you? 12 A For me, no. The doctor told me that I really 13 didn't have to do anything for it and that in a few days 14 because I had a bump on the head -- that in a few days I 15 might look like I had been punched in both eyes. 16 Q Did that happen? 17 A Yes, it did. 18 Q Your eyes got black and puffy? 19 A They got just yellow and black and blue. It 20 didn't get puffy or anything. He said it was from the blood 21 draining from the bump, draining down. 22 Q Do you know if they did anything for Krystal 23 in the emergency room? 24 A I don't know what they did for her, 25 Q Did you see her again that day? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 i. 8 ',i 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 A Yes. Q Di.d you leave the hospi ta 1 together? A Yes. Do you know if she had stitches or anything? Q A No stitches. Q How did you get home? A A roommate. I'm trying to think of the name. Her name was Mindy. Q Now, after that ordeal was over and you got out of the hospital, did you continue to be roommates with Krystal ? A Oh, yes, we were roommates through the whole two years of college. Q Did she ever talk to you about any injuries she had during that two years? A Injuries from the accident -- Q Yes. A -- or injuries at all? Q Injuries from the accident. A Not that I recall. ' I don't remember het. specifically saying anything about the injuries after that accident. Q , Do yOU know if she got any subsequent treatment because of the accident? A I don't knO\~ if she did, I \~asn't aware of it. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 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 19 Q there? A Q It may have been there, it may not have been Yes, The same wi th number two, there was a smaller scar, and nuniller three, another smaller scar, like point scars; You don't specifically ever recall seeing them? A No. Q Then, again, you're not saying that you know that they weren't there; correct? A I'm not saying I know they were there. I'm not saying I do not know they were there. Q And you don' t know specifically where the cuts were on her forehead that she did get that night? A No. Q Do you know how many cuts she did have on her forehead that night? A r have no idea. Q Do you know if it was more than one? A Oh, the cuts, it was more than one. I mean it was across the forehead. Q The cars ahead of you, were they stopped when you first observed them? A ~Ihen I was coming upon them driving? Q Yes. when the car turn to the right up Erford Road and then you first saw the cars in front of you. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 21 1 off, ,and when he turned off you were approximately two car 2 lengths behind the cars that were stopped then; is that 3 correct? 4 l>. Probably, I can't reca 11 . 5 Q Now, did Krystalever talk to you about making 6 a claim for injuries that she sustained in the accident.? 7 A No. The first I heard about it was from 8 something I had received in the mail. 9 Q Do you recall when that was? 10 A December of 1998. 11 Q You never received anything prior to that 12 saying, please forward this to your. insurance carrier or 13 anything like that? 14 A No. December of 1998 is when I got something 15 saying give this to your insurance company. 16 Q And that is the first time Krystal ever spoke 17 to you about making a claim as well? IS A She spoke to me 19 Q I'm sorry, she never spoke t.o you prior to 20 receiving this in the mail in December of 1998? 21 A I can't recalL She may have called me once 22 to tell me ,"- I think maybe she called me once to tell me 23 happy birthday at some point in time, but other than that, I 24 don't recall her ever calling me and saying anything about 25 it. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 how did you become a\~are of that? Did you know that already? 2 I knew that from school, actually. I had a 24 '," . " , " "~"~"'~~~~~:t~,.f'.~:.:{;;~c~l>r"t1\~..<.,....I~"",~"""O''1iI';'i;'<i~,"",1""-"',~"'J"'<lIoj,.';f,'"", . "'='",.!, -. ~""'~',-~,I.i+'> ,~......- ...~~ \"1 '\ \ " ~. ..' '.:.~' ," ~ ,,'" ;.'..: ' ' ,;:~ :\-'~',~ . - .', '. " ".: '~ '.,w',. ~ " :.)'. ,_." ",: ".1' :',';. ..~: .'.',"~ '<~'-L." ,';. ,'.:":'. ,',' . ~ A 3 business law class, I think that was the name of the class, 4 yes. 5 So, when you received this, you knew, ah, like Q 6 right before the statute of limitations they filed this 7 claim? 8 9 Yes, I did, I said that to my mother; A Q And this indicates here date of delivery, and 10 I notice that I don't see a signature on here, but it does 11 say received by Jessica Johnston? 12 That's not even my handwriting, even if I were A 13 to 14 Q And it says, date of delivery, December 14th, 15 1998. That would have been about two day before the statute 16 of limi tations. 17 A Yes. 18 Q So, that's when you recall receiving these 19 documents in the mail 20 A Yes. 21 Q regardless as to whether you were the one 22 who signed for it or if anybody signed for it. 23 A Yes. 24 Q Payne Number 3, this is actually the Nrit of 25 Summons that was filed. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A Q Yes. Did you receive this at the same time that you received that letter A Yes. Q -- on December 14th of 1998? A Yes. Q And did you read it, at that time? A Yes. Q Did you know wha t this meant? A Not really, I just read it. And the first page, it said to send copies to the insurance company, and that's all I did with it, because that's all it basically told me to do. Q Did you know at that time that this entire package, the letter and the Writ of Summons, meant that a claim was, being filed against you? A I had an idea, yes. Q What did you do with it? A I gave a copy to the insurance company. Q And did you hear anything about it after that? A No. Q A Did you ever talk to Krystal about it? Not that I remember. 24 Q Have you spoke to Krystal from time to time 25 after you received this in 1998? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 25 .': .. ,'." .:'C-::}" :"".:' ':;';" c'::"':''':''',~:'::':"'',,'>' "'~".'i:~""'.'-:'~'7~,"::','";->': '":.... ~~.,~' .',.'., ':\', >':', ".:~'. ",' ',::, ,: ..," 10 11 12 26 1 A Yes. she'd call me from time to time. 2 Q \'Jould you ever call her? 3 A 1 didn't have her phone number and I didn't 4 have long distance, so I wasn't able to really call her. Q Did you ever ask her about like any claim t' had been, filed? A No. Q When is the first time that you heard about the claim again after you turned this material over to the insurance company? 5 6 7 8 9 A 2000, I believe. Q And what kind of contact was that about this 13 claim? 14 There was a -- I'm trying to think of how it A 15 was even brought to my attention that it was there. I think 16 I had received a postcard or something from the sheriff's ,., . , 18 office in Huntingdon. and it was sent to my mother's address, this address that was on here. (Indicating.) I did not live 19 there at the time. It said they were looking for me. 20 I went do~~ to my mother's house and saw it. 21 I called them. And they told me that they had something that 22 they were trying to serve me with. And the guy asked me if I 23 would rather come do~~ and pick it up or if he should bring 2.1 it up to me. And I told him I would be down to get. it. 25 ;~d did you go do~~ and get it? Q GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 [' -j p " 1 I I 1 i 2 , I 3 I , 4 1 ! 5 1 J 6 I 1 7 ! . I 8 9 l ; j 10 ! 11 J 12 I i , 13 I i I 14 15 16 17 18 19 20 21 22 23 24 25 28 and you went down to the sheriff's office to get it, did you get any additional information than the original time when you received this document in the mail? A I don't remember, Q Do you feel that you were prejudiced in any way and what I mean, prejudiced -- do you think that anything affected you negatively __ MS. BOHLE: I'm going to object to that question, I think it asks for a legal conclusion. MR. SOKORAI: Can I just ask it and then we'll just proceed on it? MS. BOHLE: I just don't think she's in a position to answer that as it's used in a legal sense. BY HR., SOKORAI: Q Let me ask you this: As far as you know, the car still exists today in the same condition it was back in 1998? A As far as I know. Q Has anything changed with respect to yourself as it relates to this accident that would affect your ability to defend this case in court? A How so, do you mean? Q Were there any important witnesses to this accident that you know of that are no longer available? MS. BOHLE: I'm going to object to that, too. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 29 1 I think her defense is left up to her attorneys. 2 MR. SOKORAI: I understand that. but I want to 3 know if she feels that she has any negative impact as a 4 result of receiving this in the mail back in 1998 personally. 5 A No. 6 BY MR. SOKORAI: 7 Q Let me tell you the nature of my questions. 8 Okay? There's an issue in this case, because you received 9 the documents initially by mail by Ron Creazzo instead of the 10 sheriff coming to your house. Okay? Because there's rules 11 ,on the way things happen. 12 13 A Yes. Q l>.nd you' re suppose to deliver these types of 14 documents by sheriff. 15 16 A By sheriff. Q They were sent by mail and it wasn't sent by 19 20 sheriff until about 16 or 18 mont.he late::-~ A Yes. Q And I'm not getting into the legal defenses of what all that means ~ and I don't want to know how the "~ J. I 18 21 attorneys intend on defending your case or anything like 22 that. 23 I just want to know, to you personally, did 24 you suffer any negative impact as a result of receiving it by 25 mail instead of the sheriff coming? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 30 1 lolS. BOHrJE: I'll let he!~ answer the question, 2 I just \~ant to put an objection on at this time, " ~ \':' ~~," ) ,......). ., . If" "'~, ""':': "\'Ii'.:'.~,","'(--<l~p~''',r'}" '~, ,.,.,.-i'clI'!o...."'v...".;;',#,.".~.""'" ""."".""...""......1;1,,,, 'j''''''''"U'''''''''' "~ , .. -* :It. ,'., ." .:.,~):.' ,,"I, .."....':,.,' ~ ~. '::' " ;, '.~'. "", ",'-'.,,~>.,:.': ""or, :,\ -:," '<'-"J" :',",., . " J~ :r.. ~-,'. :'. ", .:. 3 4 I1R. SOKORAI: Okay, thank you. A I don't quite understand what you mean by a 5 negative impact. I mean when I received the first copy, I 6 did as they told me to do, When I got the second copy, I was 7 just kind of confused as to why I was receiving a second 10 8 copy. 9 BY MR. SOKORAI: 11 in'formation? Q In your mind, you were receiving the same 12 A In my mind I was. I had noticed that the 13 lawyers had changed, but I mean that made -- I mean it was 14 still the same incident. 15 Q And you had an understanding that a claim had, 16 already been filed against you? 17 I knew that that first claim was December of A 18 1998, I knew that one. 19 The time that the sheriff came out, do you 20 understand that that's the same claim? Q 21 22 A I was assuming it was the same claim. Q Is there anything specifically -- and this 23 isn't about your la~Jers defending your case or the legal 24 defenses -- is there anything specifically that you would 25 have done or been able to do in 1998 and 1999 with respect to GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 31 1 remembering the accident, calling witnesses to the accident 2 or any physical evidence to the accident that changed by the 3 time you had received this by the sheriff in 2000? 4 A You mean my recollection of it? 5 Q Yes. 6 A I don't know. By the time I received the 7 first one, it was two years after and then the second one 8 was, what, a year or two later. I mean I basically tried to 9 forget about the accident. I mean I didn't want to remember 10 it because it was just -- I don't know. 11 Q Okay, I understand that. 12 A I don't think that, from the first copy to the 13 second copy, that I would have remembered more when I got the 14 first one or anything like that. 15 Q Would it be fair to say -- and I don't want to 16 put words in your mouth would it be fair your memory was 17 probably the same in December of 1998, \.,rhen you received it 18 by mail. as it was a year and a half later, when you received 19 it through the sheriff's office? 20 .1l" Pretty much. 21 :1R. SOKORAI: I don't have any further 22 questions. 23 (The deposition was concluded at 11:06 a.m.l 24 25 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ""A'l-l"lec.....;,.L,UUU 1~:U4AM CuU Ins, Hog, fa, llUll f~' ~,..~.;" '=..po, L1U~ '. r, If4' I I"",I~, ,/6' ~ /tn A:;l."'/? - t1..~ COMMONWEAL TH OF PENNSYL< :II'"" ,.. "':';:;U '<.,!L);,tJV, _, ~ '71 _G-"'l;:J"I" '~ POLICE A CCfDENT REPOR , -- . .. ~ (xx')l;,EFl;'lfoOVERl.AYSHEETS' REPORTABl.E m NON.RE.I'ORTAl)~ED~'\f ,-'" I POLICE INFORMATION ACCIOENT LOCATION I' 'r.l1JEN1' ~OOE !, ' loIBER 4786-96 21 _ ~'ENCY , CODE i NAME East Pennsboro Townshi Police De t. East Pennsboro Township 101 i3'~~~r:T En.rlli!,. PA r'i~~o~ 1 PRINCIPAL ROADWAYINFORMATION : ,. INVESTIClATOR ' BADGE 22. ROuTE NO, OR , . P. NUMBER 161 0 STREfT NMtE e, APPROVED B II ~ 23 S NUMBER ....,.. LIMIT 50 e,ARRIVAl. T'"E 1 38 ACCIDENT INFORMATION 10, DAY OF WEEK Monday 1. LIMe , 'OF UNITS 4 UINJURED----t;'s,PRIV,PROP, 0 4' I'. ACCIDENT Y 18,010 IlEHIC~E HAVE TO BE i '7, VEHICLE OAMAOE REMOVl;O FROM T1<E SCENE? '0 . NONE UNiT , UNIT' UNIT 2 I 1 . LK:HT 2 . MOOERA TE 3. SEVERE J8.STATE 36.LEGALlY Y NI37.RE.G. PA PARKEO?""I PlATE 39. FA TIT~e OA Ol.lT-OF-STATEV'N '0, OWNER Douglas Scott WARFEL i;..Ov.rNER.".....--. --.----. _..~~~~.._~.?L?, ,p'ppl,aL?treet, Apt ._L2.QL.._ '2, C,TY,S,'T. '" _ &ZIPCC:C:.!' P.i z!lb~~~,- f.A. ,_17022 "3. "'EAR , <W. MAKE " '.. .19.9,'-....L..._ ,_,_fi~zs:li! .., IooIOOEL . (NOT '.... INS, r.1 0 .. BOOYTYPE) OX I y ~ N ~.,.. ".Iva1ICUO 1.7.1BOOY 'r,)SPECIAL l'O)\Il;Hiei:r '-'OWl'I!RSHIP - TYl'! -, U$AG~ 0 l'- OWNERSHIP , ('O,I",IT",,-IMP.cT .qVWICL! ~ 't1U.\IEl. !~l= 9.9-1 l5i~i~:JCfOL1" ~- ~ '~~ 001 '-..' NQl710N -C NT - PRESENCE ~ !e!g~NOlTlON 67. ~ E 66.~ 20 332 224 '7,~~TE ",ORIVtR ,-..--- NMI! ~g. D AClORESS eo,CITY, STAlE tZll'COOE Elizabeth, PA "if.'ilj ii2:&n O' ' ... -1'1 llJRT'H ~~~'IM'~ $". . ~ .t::?ecC-/I , _ ~"::-..)~e, c:, vf2'f' ..q~c: !', J4N 0 " ~"- ._,Icc1~;'1 "uRGeD · \"'.;,.,Ii, h73iCARGO '-CONr... PRoyn'PE \71.1 I ",.(OrtiA.:'JAAT ,~,..o.or ,,'1,!<AlAiiOOUll' n. YON 0 UN<D _._IoXl(S I ~ W'eRlAl.S \" 0 N 0 l)NI(.l;: ......ooT . a"STE I 7.INVE.5TlGATI O.UE I G. ACClOENT , O"'TE r", TWEOF I OAV I 13.' KIu.ED . N ijXl I-'~ LL !3' , y XJ N !.~ Y:...lO N'_ UNIT 2 '8, HAZAAOOUS ~ I,IA rEnlAtS I' 19, PENNDOT PROPERTY yCJ ,......, NIX..C ~ Y I ' Nl..lL UNIT # 1 ,38, LEClAl..LY Y ~I n, REG, CY 6204 ( PA'lKE010blL-PlATe B- I~~~~~~:VIN is-8;7 969 604 'iD.~'- I Pauline JOHNSTON I' WHER , .JORESS P.O. Box 135 I Q, CITY. STATE : u,pcooe MCCONNELSTOWN, PA : .ii, '!EAR 144. """'" '1986 i ..,. MOoa. (NOT eODY'M'El i.&T~ .' twe_Pl+ IMPACT - '!'OM \u.~ - GAAOIENT :ill, '1UI.I8EA N, - 16660 Bui ck '...~.__.-...... - !'- ";' ~ ,,0 UNKC Jessica Mae "'OOD~~c:I. ~~C:A:R'RiER Al:lORO;S tIU.CfTY.lStA. &ZI'COOf 70, ift ICCt t I--ONnc. 1. GvwA .-"lES AA..u ("~) '\lOOV m'C l 76~KAZ AROOU& - MATCRLAlS ?309212 SR 1014 ',)TYP 2$JACCESS 2 ~ HICHWAV 2 CONTR~_. , INTERSECTING ROAD: 2G:ROUTir'NO. OR 'mEET N.WE .21, SPEW ~,li:jNPE ..-- I~)ACCESS L.~~I!. ...~__L::. HIGHWAV COl'llROl IF NOT A T INTERSECTION: 30, CROSS STREET OR---' SEGMENTMARI<EA SR 1025 Erford ROjld .1. a/IlECTlON 32, OISTMC~ FROM SIT! N S W! FAOlASrre _&.~. .~__~I 33. oISfANC! WAS M€ASUAfO L_ ESTIMATED rx'l 1:';4. CONSTRUCTK)N 33.' TRAFFIC PRINCIPAL. INTERSECTING .. ZONE . CONTIlOL ,- 1_ ,-9.~ DEVICE ~i UNIT # 2 LBK-130 13&, Sp).TE 4.'~_F~, ,2M..991 1 PACE -1,,- .EXHIBIT \"o..41"\~ q~ UNKC 1 2S 010 745 Michelle Dana RADNOR 2 00 CO,.,moN 1 57. slfATE 3228 Rid Road 1 23 029 158 Ann Marie ZIMMERMAN 80_ Cavalry Field Road 17325 07-15-73 13'~8-o920 C Harri sbur fl)F F BRTH 01- 1iC, COIolM. VEH. ll'J,llRJ\ICR YCJNl!J cu.ss C f. ~ 1T.C1fY. ST':", & ZlI'COOE f . U . ~jjvfi CP ~ . C;.\AAER ADClRESS eg, cny. STAlE & U'COllE :1;5ooTl .... . Y' CARGO OY'm'E &)'WAAOOUS '-- MA'-ER~~....... .. "1oI;;(;..~ O<l~ Y 0 H :J UNI<C ~1.aH5TE (ii, COI4'IG, ' 7:t, . I.XI.ES 4, \f1l\lR , , ~4.GVWR ", tnf.i VON OU:1C. J~ ...xu:s AA-Q ("195) UNt<O 230j21'2 , . , . , . "'" ,', ..'~: 7::';":"': ::'. :"".'::.'~, ::;,::"",;,.:','h/:''''':',:.': '.:,':'':.:",>", ,: ';"'. ",::.,.' '<:",:":' :",,'~~", '.... .' ~' '"',, ~_..~.._---' ---_.--_.-. 78, RESI'ONIJINO Ell$ ....ENe\' East P e/'ln~ "~ r 0 Al]lbuJ!!!1.C_~ 7P,Ml1l1CA1. fACilITY 1I0l S irit 110$ Hal earn Hi II N ORMATION 8 e 0 F. F G ,~ I'A 110, I. I U~ r.)/ q IUEN r II: 1J..~.6=.I?P..______,___, ACCIDENT DATE: 12-16-96 . Uec, 't i:UUU lU:UIAM ~GU Ins, HOg,ra.IIUII " .." AL:M)H(SS Ii -r9 Broadway,~ind GaP, PA 1'_9 I, ...R_._____------ -- I. o J K L M , 9 :3 8 0 1 2 1 B 0 1 9 4 8 0 1 9 :3 ,1:1.. 0 4 0 0 B 0 0 I if . F 18 :5 1 0 .J..F 18 3 1 0 1 M 33 3 1 0 1 IF 19 :5 1 0 1 F 23 3 1 0 I Driver /I 1 Krystal M. ~Hr /I 2 ilriver /I 3 Driver !L~. WISMER, 208 S. 18!lIU.UMINATION GJ lB'~THF.R~, (~/IlOAll SURfACE W &4, PENNSYlVIINIA SCHOOL OlSTRICT Ilf APPUCA8\.El .~ Ramp , - @-GJ~~<LI E- - - - - - -- - - - ,. o"",E;,- SR 1014 ~ I.oQRESS ~ 87. NARAATIYE.lllENTlFY 'lPlTAllNG EVEHTS, CAUSATION FACTORS, SEQUENCE OF EVENTll, Wl1l<ESS STATEMENTS. ANO PROVIO. ACOITlONAl. OI!T....Lll. LIKE INllURANCE INFORW.T1OM AND LOCATION OF TOWED VEliIClE&, IF I<lIOWN. 1 related tha, sh~ was travelino West on SR 1014 in the riQht lane. when a car ff to the riqht to take the rame to Erford Road. Driver /I 1 then observed that had heir brake li ht$ on and the traffic a eared to be all but sto Driver /I 1 said that she was traveli nq about 40-45 MPH when she aeel ied the brakes and int the r ar of Unit /I 2. pushi/'lQ Unit /I 2 into the rear of Unit /I 3. and U/'Iit /I 3 r ar of U/'Iit /J 4. Driv /I nl had a f w ar L n ths to stoo. m act.. D a to ed in tn r; ht lR h n h bserv d h' h te of soeed Rnd knew that Unit /I 1 wa~ not ooino to Qet liNt nee l;omcanv RPA-56-j1,36-062 I 150913 Hi.sILPointe Drive. Karrisburo. PA 17110 2'8;:~27 1oD0Re:!.S PHONE UKl Mi. V .A lU) Te; NTe; CARELESS DRIVING UNIT 2 HONE ..'~ :-' ur.c \IHlH ,@o o ~)T'YPE !:il<f~T $ D'oIO Tf.Sf fUT ....'lltruoc ,_,...0._ O.__%lj UNK o M4(1I....) 2309212 P'-GE, ,3-.. 'ue'e, -~~ tUUU. IU:U~::t\"u~COttMo~W~i..~gFPENNSYL--:'NIA ~ PAR CONTINUATION SHEET ' fiOORG'ER'TOOI/ERLAVSH'ETS' .,..", RErooTAlllE NONREPORTNllE 0 ~KT , 4786-96' A~;'NT 12-16-96 ~ 21 It 'ION INFORII~TION USE OVEALAV . 2 S1~ET FOR COCE 5 !1U, L IU8 r, q/ q ~NOOT use ONLY' MUNICIPAL 101 COOl' . " e 0 E F G NAME ADORESS , H I J ' K L ,~ - I , , , , , ~" , , , I I 117''!AA~T1VE: D~;~e~:# 3 related that she was .tonoed in the ~inht lane wh';", hit tn the r,ear: . bvjll"~~ ~'7: ~he:d.;~ not q"e cOlllino. imnact nushed Uni" !1 into Ur,it '# 4~ : it TnI.' 3 . :' i.~~.:,--;" i. :' ,~-~ that -c- , . " . bJ shf! was stopped in the ri oht lane Ilhen_ hit'in 'the : ~ellr IIl...i.. ~ ~: ~hD; .,,;rt +h"t ohe , : ! fal" a minor nudl'le f~o" behind. , . .~ ui...i TI\~ .al"."'''' ~h.. oh.. 101". kDhi nr! Unit II , when sh" _L: : , linit: II 1: hli I : : "...k ~k... ....... "f II,," 1/ 7 : I .h~ ~, ,...:. ' r"IJ.;nl'l thl.' chain reactio,,:_ i --i . Unit ',' . 732-6969; I /I: 1.: Unit /I 2 Unit /I 3. all were towed bv Magarc's towinq, I Unit #:3:: Erie: Insurance "ol;cy II Q98 395 098 301 : : : i : l;lnit #:4:: Penn land Insurance, poll cy Ii FA 027127 : : ! : : : : : I : : , : : : : : u1 - : : , : : : : : : I : 1 : : , : : : : \ , " : ' : : I : , : : : : : : : : : : , I : : : : , , : , : : : : : : ..... .: REC , , : : \ : , ' " t JAN 'l:, Vl::fl; : ,,: : , : f1.ItIIR/S8/m... 0 S 199~ ~ : I : : : : : : , , : 'uo/(C, ,: : ' 'lA1'IJSC. : . : 1/'1C/ . : t ; : : : : : : : : ': : : : , : . : ' : : ... DUCReE VIOlATIONS 1(1, St:CTION NUloIlERS (ON'- V If C1"-RGtl> I TC N1C IHT,:! NONE , 0 0 ~ , . 0 0 ~~ ~~AlS OP<<)Th5fr E ~:YPi ~su.lS CJNOTtST ll4, fMS1'l(l,\1lOH '\ USE TEST CJREF\.l5E use TEST "I. D RO\lSC COIoII'tETi , I.:, .,j n n 0,__% DU<<O 0 O. o UO<J( \'l:S liJHOO AA~('1ll2l 230~2'2. PAI;K: ~ GtHTEII FOil HlCHWI.T SAFlT'I n I '/ 1 I I I I ! I ! I , I I i I ! have the Writ of Summons served hy Sheriff within thirty (30) days, Plaintiff did serve the Writ hy ccrtilicd mail on Dcccmhcr 14, 1998, four days after the Writ of Summons was liIed. 7, Admillcd in part and denicd in part. It is admillcd that the docket reflects 110 activity for the ncxt scventecn months. Howcver, it is denied that there was no activity in the case for the next scvcntccn months, In fact, Plaintiff and Defendant continued selllement negotiations during that time. (See Exhihits .. A" and "B" ,) 8, 9, 10. timc, 11. 12, 13, 14. 15, 16. Admittcd, Admillcd. Admitted. By way of further answer, selllement negotiations continued during this Admillcd. Admillcd, Admillcd Admilled, Admittcd. Dcnied. Thc allcgation of th(l corresponding paragraph is denied as a conclusion of law to which no response is required. By way of fUl1her answcr, PJaintifffiled the Writ within the two year statute of limitations and immediately served the Defendant via cel1ified mail within thil1Y (30) days. 17, Denied, The allegation of the corresponding paragraph is denied as a conclusion oflaw to which no responsc is rcquired, By way offul1hcr answer, Plaintiffserved thc Defendant via certified mail f'lur days after liIing the Writ of Summons. 2 18, Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to which no response is required. 19, Admitted in part and Denied in part. It is admitted that the docket docs not reflect such activity, however, it is denied that there was no effort to serve the defendant. By way of further answer, Plaintiff served the Writ of Summons on Defendant within four days of ming via certified mail. 20. Admitted, It is admitted that the Plaintiff argues that the instant matter should not be dismissed because a good faith allempt \0 serve the Defendant was made and because the Defendant was put on notice of suit immediately via certified mail. 21. Admitted and part and Denied in part, It is admitted that service by mail constituted a good faith at service and that defendant was not prejudiced by the manner in which she was served, As defendant admits to receiving the Writ of Summons by mail, the relevance of whether it was received certified or regular First Class mail is denied, 22, Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to which no response is required. By way of further answer, because Defendam has nOI been prejudiced by the service by Sheriff oc,curring beyond the thirty (30) day window after the filing of the Writ, and therefore the Motion for Judgment on the Pleadings should be denied, 23, Admitted, It is admitted that the deposition of defendant revealed that she was in no way prejudiced by the manner in which she was served, 24. Admilled, Plaintiff and defendant continued settlement negotiations after the two year statute of limitations, indicating th;H they were nO! prejudiced by the manner of service. 25, Denied. The allegation of the corre~poJllling paragraph is denied 'l.S a conclusion 3 of law to which no response is required, By way of further answer, defendant was not prejudiced by the manner in which she was served, 26, Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to which no response is required, By way of further answer Plaintiff made a good faith attempt at service when her counsel served a copy of the Writ of Summons on the Defendant via certified mail on December 10, 1998, As settlement negotiations continued, Plaintiffs actions did not stall the machinery of justice in any way, 27. Admilted in part and denied in part. It is admitted that the Writ was not reissued and served by sheriff until June of 2000. The remainder of this allegation is denied as defendant admitted she was served by mail with the Writ of Summons at her deposition, 28. Denied, The allegation of the corresponding paragraph is denied as a conclusion of law. By way of further answer, Plaintiff made a good faith attempt to serve the Writ of Summons when she forwarded a copy of the Writ to the Defendant via certified mail on December 10, 1998. 29. Dcnied. The allegation of the corresponding paragraph is denied as a conclusion of law. By way of further answer, Defendant was not prejudiced in any way by the manner in which she was timely served, 30. Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to whirh no response is required, By way of further answer, unlike the case of ~herspoon, Defendant received actual notice of tlle lawsuit, so there was no longer a question about bearing the possibility of litigation as defcndalll had actual notice that litigation had been initiated. This case is more similar to the case of Leidich v, Franklin, 575 A,2d 914 (Pa. Super. 4 --- (: ) .. ~ r,.; , i 1 - - ,J , ., , c; <.. . , i.i L "- , .> '.. (J .--.. ha\'e the Writ :Jf Summons serl'ed by Sheriff within thiny (30) days, Plaintiff did ser\'e the Writ by cenified mail on December 14, 1998, four days afier the Writ of Summons was filed, 7, Admitted in part and denied in part. It is admitted that the docket reflects no actil'ity for the ne~l se\'enteen months, Howel'er, it is denied that there was no actil'ity in the case for the next sel'enteen months. In fact, Plaintiff and Defendal1l continued settlement negotiations during that lime, (See Exhibits" A" and "B" ,) "J, 8. j 9. " , 10. time, 11. 12, 13. 14. 15: 16. Admitted, Admitted, Admitted, By way offunher answer, settlement negotiations continued during this Admitted, Admitted, Admitted Admitted, Admitted, Denied. The aliegation of tIll: corrc"!llHlding paragraph is denied 3sa conclusion oflaw \0 which no response is required. By way of funher answer, Plaintiff filed the Writ within the two year statute of limitations and immediately ser\'ed the Defendant via cenified mail within thin)' (30) days, 17, Denied. The allegation of the corrcspomJing paragraph is denied as a conclusion of law 10 which no response is requirl'd, By way of fun her answer. Plaintiff served the Defendant via cenified mail four days after filing the Writ of Summons. , I g, Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to which no response is required, 19, Admitted in part and Dcnicd in part, It is admitted that thc docket docs n:J! ref1ect such activity, however, it is denied that there was no effort to serve the defendant. By way of further answer. Plaintiff served the Writ of Summons on Defendant within four days of filing via certified mail. 20. Admitted, It is admitted that the Plaintiff argues that the instant malleI' should not be dismissed because a good, faith attempt to serve the Defendant was made and because the Defendant was put on notice of suit immediately via certified mail. 21. Admitted and part and Denied in part. It is admitted that service by mail constituted a good faith at service and that defendant was not prejudiced by the manner in which she was served. As defendant admits to receiving the Writ of Summons by mail, the relevance of whether it was received certified or regular First Class mail is denied, 22. Denied. The allegation of the corresponding paragraph is denied as a cOIlclusion of law to which no response isrequired. By way of funher answer, because Defendant has not been prejudiced by the service by Sheriff occurring beyond the thirty (30) day window after the filing of the Writ, and therefore the Motion for Judgment on the Pleadings should be denied. 23, Admitted, It is admitted that thc deposition of defendant revealed that she was in no way prejudiced by the manner in which she was served, 24, Admittcd. Plaintiff and defcndant continued settlement negotiations after the two year statutl' of limitations, indicating that they werc not prejudiced by the manller of service, 25, Denil:d, The allegation of the corresponding paragraph is denied as a conclusion 3 of law to which no response is required, By way of further answer, defendant was not prejudiced by the manner in which she was served, 26, Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to which no response is required, By way of further answer Plaintiff made a good faith attempt at service when her counsel served a copy of the Writ of Sunm10ns on the Defendant via certilied mail on December 10, 1998, As settlement negotiations continued, Plaintiffs actions did not stall the machinery of justice in any way, 27, Admitted in pan and denied in part. It is admitted thaI the Writ was not reissued and served by sheriff until June of 2000, The remainder of this allegation is denied as defendant admitted she was served by mail with the Writ of Summons at her deposition. 28, Denied. The allegation of the corresponding paragraph is denied as a conclusion of Jaw, By way of further answer, Plaintiff made a good faith attempt to serve the Writ of Summons when she forwarded a copy of the Writ to the Defendant via certified mail on December 10, 1998. 29. Denied, The allegation of the corresponding paragraph is denied as a conclusion of law, By way()f further answer, Defendant was not prejudiced in any way by the manner in which she was timely served. 30, Denied, The allegation of the corresponding paragraph is denied as a conclusion of law to which no response is required, By way of further answer, unlike the case of Witherspoon, Defendant received actual notice of the lawsuit, so there was no longer a question about bearing the possibility of litigation as defendant had actual notice that litigation had been initiated, This case is more similar 10 the case ofLcidich v, Franlilln, 575 A,2d 914 (Pa, Super. .; 1990). in which the plaimiff served the defendalll via mail and did not have the Sheriff serve the Writ ul1lil after the statute of limitations had expired, In that case, the Court found that in serving the Writ of Summons by certified mail, the Plaintiff made a "good faith" dfortlO notify the defendalll and didnot engage in a course of conduct which served to stall the machinery of justice, I.Q.,at 920, 31, Denied, It is specifically denied that defendant had a basis for a reasonable belief that plaintiff would not be pursuing a case against her, and it is specifically denied that pJaintif did not do anything for one and one half years. To the contrary, plaintiff and defendant continued to have settlement negotiations long after the two year statute of limitations would have expired, 32, Admitted, By way of further answer, Defendants insurer who will bear the buden of satisfying a judgment against defendant continued with settlement negotiations during this time. 33. Denied. 34. - 39. Denied, The allegations of the corresponding paragraphs are denied as conclusions of law to which no responses are required, WHEREFORE, Plaintiff Krystal Wismer respectfuiiy n:quests that this Honorable Court deny Defendant's Motion for Summary Judgement. ABr~IIA~~~C BY: g~ Richard'C. Sokorai I \2l.>c.)a;- 'S'JI'...icQ:"J Attorney for Plaintiff ' Dated: /;;/'!(. I>;;. . I ~ 5 ,,' : ..:,...'..,..':'" :~:'..'::,...":,.~',:: :,':.::.,.~::'..:/'.~:.:'.~:. /~',\""~:'!:,n":.,.':, :.'; " .\:.<:~:'#." .~, .::, ....... 98-6970 CIVIL TERM an explanation andlor conduct which evidences an unintended deviation from the "notice' requirement. (Emphasis added,) The Court concluded: [w}e find that the defect in service has not affected any substantial rights of the defendants, nor is there any allegation that the defendants were prejudiced by the manner in which they received notice of the lawsuit. See Justice ZAPPALA's Dissenting Opinion in Farinacci, [v, Beaver County Industrial Development Authority, 510 Pa, 589 (1986)], More importantly, consistent with Lamp's teachings, we cannot in good conscience equate the plaintiff's attorney's actions with a "course of conduct which serve[d} to stall" the machinery of Justice. For example, once the writ was mailed to the defendants, communication with and the submission of documents to their liability carrier began. Even the initial stages of discovery (notice of deposing the defendants) were underway before being discontinued at the behest of the defendants' counsel. Thus, we do not view the plaintiffs actions as a "course of conduct' to be condemned under the guise of Lamp (an "issue & hold" case). Yet, we caution that, in reversing the order of the court below, we in no way wish to signal to the bench and bar our approval of the circumvention of the Pennsylvania Rules of Civil Procedure and local practice. We are merely holding that, under the particular facts here, Lamp's "good faith" effort to notify the defendants was established in tandem with the absence of a "course of conduct" attributable to the plaintiff evidencing a stalling of the machinery of Justice. (Emphasis added.) In Witherspoon v. City of Philadelphia, 768 A,2d 1079 (Pa. 2001). plaintiff was injured in an accident at the Holmesburg Prison on September 17, 1994, On September 12, 1996, he filed a writ of summons. An attempt to serve the writ was unsuccessful. The process service did not file either a return of service or a return of no service, On May 7, 1997, plaintiff filed a complaint, indicating the action had been commenced by a writ of summons on September 12, 1996, and that pursuant to Pa, Rule of Civil Procedure 401(b)(5) the complaint was to be treated as the equivalent of a .5. ,::": ,: ..,~ ":'::.',~.'" ',,'~:~"":' : '~:""', ,'. .': ':";':' ':> .' ':/"';'T' .,>~:~,.,~':':"+:e::~~:"'.~,:,.~,:,:.~",, ,:;.~ ", ',:','._' t:,""~_:.'" .' . :.', :', .::: .", ", , . " . 98-6970 CIVIL TERM / ", / By the Court, /' ...',' , , Roger S. Spalding, Esquire 1600 Market Street 5th Floor Philadelphia, PA 19103 For Plainllff Stephen E. Geduldig, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Defendant :sal .8- , '" ,',' .. :;,,'::,< :";~:' :::'::"''''''~~''':''<?'~~~':t:~':':''~~::":~'': ,~'-::':':h'~'~.:~,:',~~,::"":"'::','':: '''",;', ~'>f.~,:< "".' ',:., KRYSTAL WISMER, Plaintiff V, JESSICA JOHNSTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-6970 CIVIL ACTION - LAW TO THE PROTHONOTARY: DATE: Please mark the above matter settled, By: discontinued and ended with prejudice· Respectfully submitted, ABRAHAM, BAUER & SPALDING Robert G. Bauer, Esquire 1600 Market Street, 32nd Floor Philadelphia, Pennsylvania 19103 KRYSTAL WISMER, · Plaintiff · JESSICA JOHNSTON, · Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-6970 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Praecipe to Discontinue was served by depositing the same~ia4he United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on \ day of'\)9/..-'~ (~ }~~4, on all counsel of record as follows: the l . Robert G. Bauer, Esquire ABRAHAM, BAUER & SPALDING 1600 Market Street 32na Floor Philadelphia, Pennsylvania 19103 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Ashleigh E. )i:ffglemeyer