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Home My WebLink About98-07208 I \ I, " \ . I i ! , J I "i ) ; ., \,,! ~ ~ IJ ~ ., ~ . '" ".. .:. ;:) ~ : I ; i "\ ~ 'I~ i j-.. '- :) ,.;, .;; .,. 'J .. <::J 0. C ~ ,<~ II;: \ C>. ~ . ~ MARTIN F, HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-7208 RODNEY L. SHELLER, Defendant : JURY TRIAL DEMANDED PROPOSED POINTS FOR CHARGE OF THE DEFENDANT. RODNEY L. SHELLER Respectfully submitted, NEALON & GOVER By: ~,....:J\~ David J. Freed: Esquire Atty. I.D. #76622 301 Market Street -- 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 . 1 I" ~. ~i,l~:'":-'<'''''''~' ~\"_"<].'>" ,,;",~)'.~'~<Il'.'~):""'Hl!~~~l'~lIw/'m, ,,!,",W<I"'=f,,"~"?j\Il'''''IR'h ~~t<"'-ol;<1!\' 11', '.~ "'. ,"" ,-.,.... . , ' , ~\ '. '~ ~ . " . .' , ".' , '." . . . .:' . . . .,," - .' . '. .' . ~. ..-:-..I-lo..Lo:.._ D1. You are not permitted to determine your verdict based on guess work, speculation, conjecture or sympathy for a party. Engle v.. Spino, 425 Pa. 254, 228 A.2d 745 (1967). . ' :' ,~,., ~\ri, ",:,,;~~~,...r,.~' :'J.: .~'~~. .r,,.,, ~-t:t.-"('''"'': ,,~. r_;h~~:;"'~)r~r_~~~'I\~..~;":",:"';., _.-: ...-.. .~~'-:'~' :, ~,:. -, \', . . 10... ~..,' \. "., '. ' . . ;-r:-)~..., __.--III":' 02. The Plaintiff claims that the Defendant was negligent and that the Defendant's negligence caused the accident. The Plaintiff has the burden of proving his claim. The Defendant denies that he was negligent. In the alternative, the Defendant claims that the Plaintiff was contributorily negligent. The Defendant does not have to disprove negligence. However, the Defendant does have the burden of proving that the Plaintiff was contributorily negligent Based upon the evidence presented at this Trial, the only issues for you to decide in accordance with the law as I shall give it to you, are: First: Was the Defendant negligent? Second: If you find that the Defendant was negligent, was the Defendant's negligence a substantial factor in causing the accident? Third: Was the Plaintiff himself negligent and was such negligence a substantial factor in causing the accident? Pa. SSJl (Civ.) 3.00 . ,,' ,~. "''') ,''<'''.".,": ,,::,,,,,,~~,,,,,r.M~~"~"~:''''.':~''''''''''r.'''~~,''~''';;T<;,~~';''*'I''''~',-rl~';'''''''''''f~t' -~-'.-~~,:~ ~:~,.. ',. :~ ~ .:", , ~._r~~>. ~....., 03. In order for the Plaintiff to recover in this case, the Defendant's ncgligcnt conduct must have been a substantial factor in bringing about the Plaintiffs harm. This is what the law recognizes as legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident. Pa. SSJI (Civ.) 3.25 ''" ..r,,\"'7'.~ '~.- : .F~,.-,'--"-t'~--'~r .,,- -<1>', '-;," '~'--,.~.JI' "',\ . ~ '. r~'. - " \". ' .",1)''1., . _ ." = "~.~"- ~ .- 1l.;.""1I::..J'~ 04. The number of witnesses offered by one side or the other does not, in itself, determine weight of the evidence. It is a factor, but only one of many factors which you should consider. Whether the witnesses appear too biased or unbiased; whether they are interested or disinterested persons, are among the important factors which go to the reliability of their testimony. The important thing is the quality of the testimony of each witness. In short, the test is not which side brings greater number of witnesses or presents the greater number of witnesses or presents the greater quantity of evidence; but which witness or witnesses, and which evidence, you consider most worthy of belief. Even the testimony of one witness may outweigh that of many, if you have reason to believe this testimony in preference to theirs. Obviously, however, where the testimony of witnesses appear to you to be of the same quality, the weight of numbers assumes particular significance. Pa.SSJI (Civ.) 5.03 .,,~.. . ,-....."""""..-. -- ~~~ ',' '~. .:', -..:,", " .;, ,,' .,' ,..,.... ',.:'i'. ~-,:,-,. f. ',~ , :: -'.',.' ~ ".... ,'-'" ,- - \ . .~ . T -" D5. The Defendant claims that the Plaintiff was contributorily negligent. Contributory negligence is negligence on the part of a plaintiff that is a substantial factor in causing the accident. The burden is not on the plaintiff to prove his freedom from contributory negligence. The defendant has the burden of proving contributory negligence by a fair preponderance of the credible evidence. You must determine whether the Defendant, under all the circumstances present, failed to exercise reasonable care for his own protection. Even if you find that the Plaintiff was negligent, you must also determine whether the defendant has proven that the Plainiiffs conduct was a substantial factor in causing tile accident. If the defendant has not sustained that burden of proof, then the defense of contributory negligence has not been made out. Pa.SSJI (Civ.) 3.03 "',I --. ".- -,n'::, ", ~,,,.,,'.~- ",-, ''''', -\:"<,"~ .,' .'."~'~' . -,', ',," , '.'. " ,- ',. ".' -'-'~Ili'il~ _. -~. ...r~,~~, .....,...... 06. You have already been instructed about what you may consider in determining whether the Defendant was negligent, whether the Plaintiff was contributorily negligent, and whether such negligence, if any, was a substantial factor in causing the accident. If you find, in accordance with these instructions, that the Defendant was negligent and that such negligence was a substantial factor in causing the accident, you must then consider whether the Plaintiff was contributorily negligent. If you find that the Plaintiff was contributorily negligent and such negligence was a substantial factor in causing the accident, then you must apply the Comparative Negligence Act, which provides: The fact that a Plaintiff may have been contributorily negligent shall not bar recovery by the plaintiff where such negligence was not greater than the causal negligence of the Defendant, but any such recovery shall be reduced by the amount of negligence attributed to the Plaintiff. Thus under this Act if you find that the Defendant was causally negligent and you find that the Plaintiff was also causally negligent, it is your duty to apportion the relative degree of causal negligence between the Defendant and the Plaintiff. In apportioning Ihe causal negligence you should use your common sense and experience to arrive al a result thai is fair and reasonable under the facts of this -,~- -~ .. . '-'"~-l~... - '. '" :,.,;,~. ,:'",,:-,,'~.-\.,'"":"". ....'~'~,r.~...!',:. '. ':...":. ". '; ,- accident as you have determined them from the evidence. If you find that Plaintiffs causal negligence was greater than the causal negligence of the Defendant, then the Plaintiff is barred from recovery. If you find that the Plaintiff's causal negligence was equal to or less than the causal negligence of the Defendant, then the Plaintiff will recover. Pa SSJI (Civ.) 3.03A ,. ,..."" ~ .,.",,' -"/""'" .'~"'~ :',-'.~" '''I'~' ~'.' -1',',_ "~'..- I,:. .' ~~....."~ . -'3: ' ~._. ~ D7 The mere happening of an accident is not evidence of any negligence on the part of the Defendant, Rodney Slleller. Platts v. Driscoll, 245 Pa.Super. 235, 369 A.2d 381 (1976) , .' :',', ,',,~' ~ ~', ", ,~_-", ":: '.l\-~." ", " "", .. " ,.... .' .'::':l~ 08 Sometimes the happening of an accident is unavoidable and occurs without anyone being negligent. The fact that an accident occurs does not of itself prove that there was negligence on anyone's part. You must determine the true facts in light of the law as it has been explained to you regarding the matter of negligence in order to determine whether the Defendant was negligent and whether the Plaintiff was contributorily negligent. If after doing so, you conclude that Rodney Sheller was not negligent and the accident was unavoidable, that based on the exercise of care required and defined for you, the Defendant did not cause nor could have avoided this accident, then Plaintiff cannot recover. Kenwolthy v. Burghart, 241 Pa.Super. 267, 361 A.2d 335,338 (1976); See also, Bumbarger v. Kaminsky, 311 Pa.Super. 177,457 A.2d 552 (1983). :~"~,~ . ~'. : _,"' ,? .," "'" ,"'~''''.'; .,-~':'~ ::'.,1':-,' '".' ,'''':, .: ',' , ~. ,".~' " '. . . . .. IN THE COURT OF COMMON PLEAS OF CUMBERL1\ND COUNTY, PENNSYLVANIA MARTIN F. HOVIS, Plaintiff NO. 98-7208 CIVIL ACTION - LAW v. RODNEY L. SHELLER, Defendant JURY TRIAL DEMANDED POINTS FOR CHARGE RESPECTFULLY SUBMITTED: LAW OFFICE OF DALE E. ANSTINE, P.C. . , . ~.,'. ,.',' ., .~ .~: .~"'~ ", ':..'."...~'_.,'~"'7'.,,_ " ,'._"',', ': '. " 1\ I I I I I ',1 II I /L~~ ..~ / . Gre90ry E. artin, Esqulre Attorney 1D No. 38894 "2 West Market Street Post Office Box 952 York, PA 17405 (717) 846 - 0606 1).".1:1':..\.......1..... ...... \ ,,,..,.,...,,...,,,,, . .~..,~ , .' 1."'""'" ." - ,- No. 2 Nealiaence The legal negligence, otherwise known as term carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here pres en ted. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. Pa. SSJI (Civ.l 3.01 \ ,,~. '" '" I II II 'I II !I I' 11 I' d , :! i: " :! Accepted Rejected Withdrawn il , ;1 I; ;-'''1~> ,_ < ", ,": ,,'"', .':. ~, -.-, ;',' "''"'t:"'''-. . --;: :"~,":";-;';~ ::I'-~'~'.~-;-~'_.': ~'-,"',' . "... _. "'. "~"., .~.' ", , -~ ~ No.3 Ordinary Care Ordinary care is the care a reasonably careful person would use under the circumstances presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by the law must be in keeping with the degree of danger involved. Pa. SSJI (Civ.) 3.02 "":, '^:,'.""',,.....('. \ ,,,~. I', .".", "" " ,.. I I I, II " Accepted _____ Rejected \~ithdrawn .,..,r"/~ ,: ,'.,' , \"..... . ~ 1';.+ .' '. ....:~ ""-",,"'~'" "'.~I..,~:...\I<.~"}"r."~~.,."..~t:;A'?"':{,~..""'i11".'~.4Lji"\".,' : ~;~""~: ..' '4~..,;, , " '. ." J _ : '. ". ~ --';, No.4 ContributorY Nealiaence The Defendant claims that the Plaintiff was contributorily negligent. The burden is not on the Plaintiff to prove his freedom from contributory negligence. The Defendant has the burden of proving contributory negligence by fair a preponderance of the credible evidence. You must determine whether the Defendant has proven that the Plaintiff, under all the circumstances present, failed to exercise reasonable care for his own protection. If the Defendant has not sustained that burden of proof, then the defense of contributory negligence has not been made out. Based on Pa. SSJI (Civ.l 3.03 '^ n.Ut: ..:.,\......11..... ..... \"0.1'".,,,,,,,,,,, . Accepted Rejected ____- Withdrawn ..r-J . '. '. ~. . ..' : "'''" :'"'~":'''' : ,,-~;~~"''''1'''~:>>:Y;'.'''':l'i':. fl :", ;JR;';"" ... :;"'~--"-" :.' ,.;'. _ " .~ '. . .., ";~ .: '. " - .' .,' . " .;j" , -" ~.. ~ '::. No. 5 Comparative Necrlicrence 2llQ Apportionment Amoncr Joint Tortfeasors The Court has already instructed you about what you may consider in determining whether the Defendant was negligent, and whether the Plaintiff was contributorily negligent. If you find, in accordance with these instructions, that the Defendant was negligent, you must then consider whether the Plaintiff was contributorily negligent. If yeu find that the Plaintiff was contributorily negligent, then you must apply the Comparative Negligence Act, which provides in Section 1: The fact that a plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff where such negligence was not greater than the negligence of the defendant. Under this Act, if you find that the Defendant was negligent ?nd you find that the Plaintiff was also negligent, it is your duty to apportion the relative degree of negligence between the Defendant and the Plaintiff. This only applies if you find the Plaintiff was contributorily negligent. If you find from the evidence that only the Defendant was negligent, then the Comparative Negligence Act does not apply. In apportioning the negligence, you should use your coronIon 1)"'1: I:. ,\.......1...". P.t', sense and experience to arrive at a result that is fair and \ ,,~. I', .,.~""... ,. reasonable under the facts of this accident as you have determined them from the evidence. .~ -,.~,- ~.-r_'~!~;,..-= ."S.~~ ~.., , .' "",-- l.~~-..! ~~":-. :::",'" .v:,:~,';~.__.~. ,'I. ':'~'~~'~-~':~~''':~~">.'~~''"'.'-'-""'''''l'~'~,'~. ,-~ '" ",":,,~',", ,'.'.". :": : .~. '..;. You must set forth the percentages of negligence attributable to the Defendant and the percentage of the negligence attributable to the plaintiff. The total of these percentages must be 100 percent. To further clarify these instructions, the Court will distribute to each of you a verdict form containing specific questions. At the conclusion of your deliberations, one copy of this form should be signed by your foreman and handed to the Court clerk; this will constitute your verdict. The verdict form reads as follows: Question 1: Do you find that the Defendant was negligent? Yes No If you answer this question "No", the Plaintiff cannot recover and you should not answer any further questions and should recurn to the Courtroom. Question 2: Was the Plaintiff contributorilY negligent? Yes No If you answer answer any further Courtroom. this question questions and "No", you should not should return to the Question 3: u,,~ I,:"~""" "... \ ,,,,,,',,..,,.......,' \ \1 Ii II 1\ I, " Ii II: I! \~hat percentage Defendant and what Plaintiff? of negligence was attributable to the percentage was attributable to the ~~..~~ "- ~ , ' .> : ,_ I .~ > \ I " ' . ,. : I ~, .' /. ",..... . - '" '. '. " ,', ': " " I '.', " ,.,' - . ,'-'; : ' ., . ."l~' ,,_F.~ Percentage of negligence attributable to the Defendant _% Percentage of negligence attributable to the Plaintiff % Total 100% After you return your answers to the questions on the verdict form, signed by your foreperson, contact the tipstaff. Based on Pa. SSJI (Civ) 3.03A \ ,,~~, I',~"", .,,. ,- ,. . Accepted Rejected Wit.hdrawn - ; -r-f.~,.l.J~;"~ , ' ", . I, T " : . '. . '. '. : ~ ' .... L.: . ~.: . '-. >, . '.; ,'. . .. :,:" 1 .: ~ '.. :" No, 6 Burden of Proof In civil cases such as this one, the plaintiff has the burden of proving those contentions which entitle him to relief. When a party has the burden of proof on a particular issue, his contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not, To put it another way, think, if you will, of an ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the ev~dence favorable to the plaintiff; onto the other, place all of the evidence favorable to the Defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the slightest degree, in favor of the plaintiff, your verdict must be for the Plaintiff. If the sc.ales tip in favor of the Defendant, or are equally balanced, your verdict must be for the Defendant. In this case, the Plaintiff has the burden of proving the II following proposition: That the Defendant was negligent in bringing about the accident. If after considering all of the uu:. 1.::,.'.\.......~I~I, p"...1 \p'" I',,,..,,.,,,, ,." \1 I II :1 Ii .1 l' evidence, you feel persuaded that this proposition is more probably true than not true, your verdict must be for the , .' ,,' "".,,'. .,' ,..,,~ '~'. ," ',,:~:.. ',' - :., ,.".~>. ,~ . ._,~ Plaintiff. Other\~iset your verdict should be for the Defendant. Pd. SSJI (Civ) 5.50 __ I[ I)AU: E..\"h"'I'I,I',t" ,,," ,,,.., ..""..- 1 Accepted Rejected Withdrawn I I I ,I \i " " :," .:. ''', i", ,"'~.~' . ",t. ~ ," ,'-,-' .'~ .;f'.,'..'., ,'; ',:',' ':.,~' J.-~.> ,. .' \ . ,~ ;-'7~.......c:..:' ..j No. 7 Nealiaence Per Se - Violation of Statute ~3323 An Act of Assembly of this Commonwealth, in effect at the time this accident occurred, provided in part: 75 Pa. C.S.A. 5 3323. stop signs and yield signs (b) Duties at stop signs. After having stopped, the driver shall yield the right-of- way to any pedestrian in a crosswalk or to any vehicle in the intersection or approaching on another roadway so closely as to constitute a hazard during the time when the driver is moving across or wi thin the intersection or junction of roadways. This Act dictates the duty of care required of someone in the same situation as the Defendant. If you find that there was a violation of this Act, you must find the Defendant negligent as a matter of law. Pa. SSJI (Civ) 3.30 "'H I'""" n,', ,.. \ II II II il II \i Ii l\ccepted Rejected Withdrawn r'l 'f' ~ ~ .-r-J"~.,. ,I' , ," ", ",' ~.:. '~" :-~~~'"':"" -..-.--,-..~~~~,::-.......:"~~,:";,:~:';:--'-,+7-.:-:-;''''''''''~'",, j.,',..... ;. ': .:"":' ~.- No. 8 lli!i:l The Motor Vehicle Code provides that every person riding a pedicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. 75 Pa.C.S. ~3S01 (a) . 1)...1-1': E..\....-.,....... ", ...1 I ~ ,,..~ I'..,",,, "" .: ." Accepted Hejectcd __ Withdrawn . ~., '.,. '. . >'.:. ,h ~ :',': .~'...-""....-.:.;." ,,~~n'..."~""T:~ .,."-'":.''''P"''7~-:~~:~:.~-~..:~----"--. '; '~':' 1,1 ."." .",' . ! ...., ':, ...,-,~ " ~.' No, 9 ~ The Motor Vehicle Code provides that a pedicycle may be operated on the shoulder of a highway and shall be operated in the same direction as required of vehicles operated on the roadway. 75 Pa.C.S. ~3505(b). '. n.'-I.I: E. "\,,,'11'1, I', (', '~. , \,,~., t., "",,,,,.. ",.,' II '1 II I I I il Accepted Rejected Withdrawn . : ", ',~'" :.. . ~ ," '~~'''~-;'~'::'''~im:;;;:I~.'1"",,~;'~~~'''1:::1~'''''~~.~~~'''r7~:-':~~.: :-:--:-";: Y.,''''. ~'~ '~'" _. '. .:"~": , ~~ .....r.-..L~,.._._.... \".. ,.""",...., , No. 10 QJ.!1:i Members of the jury, the duty of care imposed upon a driver of a vehicle about to enter a through highway from a stop street requires that the driver must permit traffic on the highway to pass unless he is so far in advance that, in the exercise of reasonable care, he is justified in believing that he can cross ahead of the approaching vehicle without danger of collision. Fauzer v. Philadelphia Gas Works, 279 Pa. Super. 310, 420 A.2d 1349 (1980). Accepted Rejected _____ withdrawn , .', , . " " "', ,.", "'_"--1,",': ::- .- - ";~\:-.I'''~'''''.-~~~j~'1~l':, -~.::,......,~, .. ~", -.' '::, '~c',..' " , ',:_", ,;.... ,~ ,',' 1. .-:~ ~.:.. No, 11 QJll:i The general rule is that an operator entering a through highway at a stop street must exercise the utmost caution to avoid a collision with traffic moving thereon. Rowles v. Evanuik, 350 Pa. 64, 38 A,2d 255 (1944). I \1 I II... ".\"'"'' .'. (II \,... ,.,..., '....' I I I I I, I! \i " i' \1 I, Ii II \1 Accepted Hejected Withdrawn ~. . t :' ", . " .."', ,. .., ,~': I :\ -,--'~~'. """-':-'.Jf(~~ ,,-:;'t;M---l~~-'-:'--""--I" " ,.--~' ~ .' . '.~ .',', " ...r-~~ ~', ::,',. . ",:~,-.~., ~-~~ "- .~ . ~ \ ".~ "....~" ..", , No. 12 !2.Iill!: A motorist in the same position as the Defendant has a duty not only to stop and look in both directions before entering a through highway, but also has a duty as he moves forward and enters the highway to continue to look and to keep his automobile under such control that he can stop at any moment and avoid a collision. If you find from the evidence ",', + ":"': :f,.",~~'~' .-,''-~~~''P",,"~':rTF~~.-,~:~''7~-~~"';''''-"~;'~-''''''101;,~';.-;"-~~~:~r7,~'~-:~ ~,.:- ~:n_-;_" ' . ~ :' '_' q ,"\ _, ~'~ ',,', . that the Defendant failed to comply with this duty, you may find the Defendant negligent. Helfrich v. Brown, 213 Fa. Super. 463, 249 A.2d TI8 (1968). Accepted Rejected Withdrawn I I II I Ii .... "' UA-H' E. ,\''''1''', I., t', \"H I'. ,"~",. No. 13 ~ It is the law of the Commonwealth of Pennsylvania that a driver of a motor vehicle is under the duty to be continuously alert, to perceive any warning of danger that is reasonably likely to exist, and to have his vehicle under such control that injuries to persons or property can be averted. If you :~~...x ~ ':" '. _ ,.,' J. ,~. \~ ',,'~' '.~'~'.I"'~~~"'-'~:.'.:'h,. .e:..~_~~:~.~,:~:~~I' ~~~~.':-'~.~"'~"'~;",' :.: ~', ':", '-, .,.:-.~. \':" .' believe from the evidence that the Defendant failed to keep his vehicle under control and to keep such a lookout, then you may find the Defendant was negligent. Wilson Freiqht Forwardinq Co. v. Seal, 367 Pa. 18, 79 A.2d 648 (1951). \, I , I' "I , '1 11 Accepted Rejected _____ Withdrawn No. 14 !21lli!: Someone in the same position as the Plaintiff may assume, within reasonable limits, that a driver approaching on an intersecting road will obey the law and give him the right-of- way, and he is not guilty of contributory negligence merely because he failed to anticipate the negligence of the other driver. Taylor v. Mountz, 385 Pa. 625, 123 A.2d 667 (1956). " n"u .':. .\......11...'. ", ~ . ,,,.. I'",,,,,, ^~.h I , . Withdrawn l\ccepted Rejected __ ,- '; , . <.' . . ,~ : ': ' '.. : ' ..... ..::. ' , >..J' j~. ,',' " '. 1 '.' ':', ,.' . c ,'. 'f " -: .. . . Q . ~ . " fIl " ; " . ...~ " " . " . ~ o~ . " z . ",e- o " 0 ~ . " m g tlrn < > . " ~ i:~ < u > . . ;; . . l'5< ~ ~ z ;;: 0 z ~ . ~ " .~ ~ '" n. -'~ 0 0 .. 0. [1;l ~ . :;l ~ ~. . .. :: .; ... . . ~"t..___ , .~ ". ". . :.." :,...:...'...:,...'.... ': '..':...".'."..... :".'.....,."., "';.' ,'" ,"'" .',,::,.:' <'~'. '.::-'" 11.....,1:..\.....11...'.1'.(', ".H ""..",.".., ~'r---"""".~' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARTIN F. HOVIS, Plaintiff NO. 98-7208 . "" .' .' ,'.' ," .",~";;,j;,"'~'..~~,'_,-;' ,,",R .....\.~:.-:-~-"~...,1;,.~... -~-:-,') "'_~;;'~~""-',":.. ',,:'~-~,.',:'"',' ',~"~. .'.'. :',"_.~'" :,':" , " ,"- \ '. v. CIVIL ACTION - LAW RODNEY L. SHELLER, Defendant JURY TRIAL DEMANDED PLAINTIFF'S TRIAL BRIEF L.. STATEMENT OF FACTS This action arises from a motor vehicle/bicycle accident, which occurred on .July 23, 1998, Plaintiff Martin L Hovis was riding his bicycle eastbound on Walnut Street approaching its intersection with Race Street in Boiling Springs. The intersection was not controlled by any traffic control device for vehicles traveling on Walnut street, and Plaintiff intended to proceed straight through the intersection. At that same time and place, the Defendant was operating his vehicle northbound on Race Street and had stopped at the stop sign at its intersection with Walnut Street. The Defendant then pulled forward from the stop sign directly into the Plaintiff's path of travel causing a collision. The parties have agreed to try this case solely on the I issue of liability. 1l.L.. ISSUES I A. LIABILITY OF DEFENDANT. As set forth in the complaint, it is the Plaintiff's ~Position that the Defendant breached his duty of care owed to Mr. IIHOViS by driving in a negligent manner and that he failed to ii I, ,I Ii .....,-~.~-;;;.":t.....J comply with the provisions of the Motor Vehicle Code. It is the Plaintiff's position that the present case presents a clear violation of 75 Pa.C.S. ~3323(b) which provides as follows: After having stopped, the driver shall yield the right- of-way to any pedestrian in a crosswalk or to any vehicle in the intersection or approaching on another roadway so closely as to constitute a hazard during the time when the driver is moving across or within the intersection or junction of roadways. Pennsylvania courts have frequently adopted legislative enactments as standards of conduct applicable to negligence actions and included in those standards of conduct is the Motor Vehicle Code. Atene v. Lawrence, 428 Pa. 424, 239 A.2d 346 (1968). A violation of such an enactment is negligence per se, and if the jury finds there was a violation, it has no discretion with regard to whether there was negligence. D'Ambrosio v. philadelphia, 354 Pa. 403, 47 A.2d 256 (1946). Under the case law interpreting Section 3323(b), the duty of care imposed upon a driver of a vehicle about to enter a through \highWay from a stop street requires that the driver must permit traffic on the highway to pass unless he is so far in advance that in the exercise of reasonable care, he is justified in believing that he can cross ahead of the approaching vehicle or pedicycle without danger of collision. Fauze~Philadelphia Gas Works, 279 Pa. Super. 310, 420 A.2d 1349 (1980). The general rule "":. .<,,",,,,.,,..\is that an operator entering a through highway at a stop street ,.,. ,,,,...... Imust exercise the utmost caution to avoid a collision with any 1\ i , , 1 I I II 1, 1\ 2 ". . !","'. I 'I,:'.: . '~ .: '"~". ',~"''',..~..'.~~-~.'',I"f......r;:r'..e1~'~~. ',.,' .' .' .;. , '. - -'. '.' ,.: ' traffic moving thereon. Rowles v, Evanuik, 350 Pa. 64, 38 A.2d 255 (1944). The investigating police officer, Trooper A. J. Phillips, of the Pennsylvania state Police, will testify concerning the circumstances of the collision. Trooper Phillips will testify that the Defendant told him he had not moved his car from the time of impact until the Trooper's arrival. The Defendant admitted at his deposition that he did move his car after the accident prior to the Trooper's arrival. The Defendant stated that he had backed his car up off Walnut Street, back to the stop sign on Race street. B. CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF. The fact that the Plaintiff was riding a bicycle instead of operating a motor vehicle does not negate Defendant's liability in the occurrence of this accident. The Motor Vehicle Code in Section 75 Pa.C.S. ~3501(a) provides that every person riding a pedicyc1e upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. The evidence at trial will establish that the Plaintiff was observing all the rules and regulations of the Motor Vehicle Code as he proceeded on the through road, Walnut Street. Moreover, at 75 Pa.C.S. ~3505(b), the Motor Vehicle Code " )),1.1.1: E. ,'-"""1'1"1.1'. c. provides that a pedicycle may be operated on the shoulder of a ,,,~.. I', "'~, " ".. " .' 3 1\ \' Ii ~ ..r ~. , . \ " :.. -, ,'" . . ,-, - .' ....: . \., .' .' . r . ",,4 _ highway and shall be operated in the same direction as required of vehicles operated on the roadway. Plaintiff was riding his bicycle in compliance with the Motor Vehicle Code. It is the law of our Commonwealth that a driver or bicyclist on a through highway may properly assume that persons approaching on intersecting roads and entering upon the through highway will yield the right-of-way. Wilhelm v. Vest, 202 Pa. Super. 73, 195 A.2d 132 (1963). Mr. Hovis was not required to anticipate the Defendant's negligence. Smith v. Port Authority Transit, 257 Pa. Super. 66, 390 A,2d 259 (1978). ll.L. CONCLUlll.Qli The Plaintiff respectfully submits that the Defendant was negligent per se in the occurrence of this accident as a result of his violation of 75 Pa.C.S. ~3323(b). RESPECTFULLY SUBMITTED: LAW OFFICE OF DALE E, ANSTINE, P.C. " ~, Gregory E. Martin, Esquire Attorney ID No. 38894 ? West Market Street Post Office Box 952 York, PA 17405 (717) 846 - 0606 1).'\1,1 I:. ,\,,,'11'" ", (. \ I II I II I, I' II II I' II \, I: II Ii '",., ,'.",,,.,,,,, 4 '-.r7~ '. ".- .', .' '.' ,!' "; -',,"--~~~-:."\.. .\,-~ ,-~"~,~",,.'!;,:' ',',,' ',' . '. ' '" ' .' , ".a. ~-~~ -,> IN THE COURT OF Ca~N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARTIN F. HOVIS, Plaintiff NO. 98-7208 v. CIVIL ACTION - LAH RODNEY L. SHELLER, Defendant JURY TRIAL DEMANDED VERDICT SLIP Question 1: Do you find that the Defendant was negligent? Yes No If you answered this question "No", Plaintiff cannot recover. You should not answer any further questions and should return to the Courtroom. Question 2: Was the Plaintiff contributorily negligent? Yes No If you answered this question "No", you should not answer any further questions and should return to the Courtroom. . '''I~'> ,: ",' ~.k . '., ,. "j- .-'~)"', I-.;.!;~'~') ..-' ~,-:+.~ ~ ,'-:-:~-";',':~",,:?~' '~:-1I;.~.f '....:.- ;, ~ .'.' . .',. . . , , , .lIl:A _"_Iu..~n~ , . Quas tion 3: What percentage of negligence was attributable to the Defendant and what percentage was attributable to the Plaintiff? Percentage of negligence attributable to the Defendant _% Percentage of negligence attributable to the Plaintiff % 100% Total After you return your answers to the questions on the verdict form, signed by your foreperson, contact the tipstaff. Foreperson ~ ~ ".,"," '-'1~:i.1: . " ",' , ",' " '.,' ~. , .' . " '<~. -- . ~"'. . { . . . . " ,I "'.'~ ". - l " .', I. ~ ~ -- -, - , "- to t.3 ~ . Iil W u. Z ~ o ~ th III to; I- tJ tIJ ';! E Z'~ ~~ t; ~~ ~ ~ (:l ~ . tol < ~ III ~ ; . < ~ Z m_~ w ~ U > ~ . " Z o Z . Po. i . .c "., . .~ I ; , ~ . . ," . , ,- . . .' . . . . .'. . - . ." ~~ ~ ", ." ;'...J";' .;. " " - ".', .. ,. " ' : - .. , .. ' ", , .. .,' , " . '~. . ~. . :. . '-:: :,.- . .j '..,..1"1...,,,,,,, ,-" V. IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED No. 98-7208 MARTIN F. HOVIS . ). I . '. . .... :'. .'. . ":.' , r . '; '. ~ ,. . ( "',"':. '. . " ~ ' . ) ',' \\V. RODNEY L. SHELLER PLAINTIFF'S MEMORANDUM FOR PRE.TRIAL CONFERENCE Submitted by Gregory E. Martin. Esquire Counsel for Plaintiff r. ~ASfC FACTS AS TO LIABILITY This action arises out of a bicycle/motor vehicle accident that occurred on July 23. 1998. at the intersection of Race Street and Walnut Street in South Middleton Township, Cumberland County. Plaintiff was operating his bicycle eastbound on the south shoulder of Walnut Street, approaching Race Street. Defendant had stopped at the controlling stop sign on Race Street and proceeded into the path of Plaintiff. II. STATEMENT OF BASIC FACTS AS TO DAMAGES Not at issue. This case will be tried only on the issue of liability. III. STATEMENT AS TO PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A. Liability: 1. Negligence of Defendant 2. Comparative negligence. if any. of the parties B. Damages: None. IV. SUMMARY OF LEGAL ISSUES REGARDING ADMISSIBILITY OF TESTIMONY. EXHIBITS. OR ANY OTHER MATTER. AND LEGAL AUTHORITIES RELIED UPON None WITNESSES Nama Addrcs~ !>,ubiect 01 Testimonv 1. 2. 1:\ I II f.'ar1ln Hovis Rudney Shelh~1 1 roopel A,J, Phillips .~?:) Ppit: f\O;Hj, f,~1 Ho!I}, SpnnDS, PA liability as on cross Ilalliilly P(:nn~,}'lv.\nl;} Sbk Police .' ~",_..., ~_r~~:..:Jr'W .......-. VI. LIST OF EXHIBITS a. Photographs of accident scene b. Police report VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS If Plaintiff is successful on the liability portion of the claim, the parties have agreed upon the amount of damages to be paid by Plaintiff. Re,p"t1":lY;~b~it Gregory E. Martin. Esquire Attorney I.D. No. 38894 Two West Market Street P.O. Box 952 York. PA 17405 (717) 846-0606 Attorney for Plaintiff ,,,~. I',. ..", ,... " ,.,'. II I ,I 2 -- . ~_..- --"","'"l;""w._..a.-- ~'-~'~~~'..-:. ....... ~.... , '.) ~ '-,' ."\,. ~'} " :" ":' ..,'..,1 f~'-, ,-',,_, ,.,.' "'j" "',',.;' ',' '~', -~ Q . ~ . LO r4 ~ ~ "" W N !: 14.,"'" II: In o t-l tii m < (/J E-i ~"~, ,Z ~OO~lD~ . c: "" " W " 14. ~ ( U >- O~ 1:. ii: lfl. ~~~~~ :I r.; ~ ~ ~ I"C. ~ ~ i ~,. ~ iol .~.. < ~ .. ~ I ~... ,. ~ ,;; . . , , ~ . . - " ' , .,'. . '. ~ III. PRIIIlGIPLEISSUES OF LIABILITY AND DAMAGES: A. Liability: 1. Negligence, if any, of Defendant. 2. Contributory negligence, if any, of Plaintiff. B. Damages: No issues. IV, ~UMMARY OF L~GAL ISSU~S: Defendant is not aware of any outstanding legal issues. V. IDENTlT'L9LWlTt'!i;SSI;_~~ A. Defendant, Rodney Sheller. B. Defendant reserves the right to call Plaintiff, Martin F. Hovis, as on cross-examination. VI. EXHIBI"L~~ A. Photographs of accident scene exchanged in discovery. B. Diagram of accident scene (for demonstrative purposes). VII. SI~LlJ_S_9LSJ;m-EJ~E:NLNI;C3.QII.Gj\JIOl!~: The parties hereto have agreed to try this case on the issue of liability ,;~""J4~>....:::J:' -'~..~m' :' ,'.~ -~ ~":r~.:-, 'i-' ~.""T'_ ~~.~ ~-,"'''~~'''--:''_:'~':'' ',~'~-- t''-'>-''.'''i::-'''~,;;:::eo-,<:."..~ '-:--,~~, ~-;-, '. ;'-- ;' . '. ,: : '~'. ',' , CERTIFICATE OF~EBYJq; AND NOW. this 5th day of June. 2000, Illereby certify that I have served the foregoing Defendant's Pre-trial Memorandum on the following by depositing a true and correct copy of same in the United States mails. postage prepaid. addressed to: Gregory E. Martin. Esquire LAW OFFICES OF DALE E. ANSTINE, P.C. Two West Market Street P.O. Box 952 York. PA 17405 _~...,,~'J'\1c~}"-------- David J. Freed. Esquire ",'r'.".. :'.' .,'" " '-.:: ~. .~. ' '.-'-:" "~'.,.\"__.' ,~~_!, .'.r' ,.- , . , . '. ,- . +-,-~.-&; .,.:... < ". .~ , '. -,. - '.- ,.' " - _' . . . ~ !; . ' . . " .,' . - , ' I, , . . - ,\ . IN 'ftIE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA (I (t'Le L.--, MARTIN F. HOVIS, Plaintiff : NO'1~..' 7) dJ/ v. : CIVIL ACTION - LAW . . RODNEY L. SHELLER, Defendant . . JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth against you in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a default judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT I1A VE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TillS OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. ..": '.:: .\~..", . I' ..1\ . I ,..,,~ 1'. .,"", ,''', ," >, 1\ il I I I II CUMBERLAND COUJIrry BAR ASSOCIATION Lawyer Referral Service Two Liberty Street Carlisle, Pennsylvania 17013 (717) 249 - 3166 1-800-990-9108 ;..,- ~. . '.. . " !,', ," '" , . . . ~.:. ~ - > IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA MARTIN F. HOVIS, Plaintiff NO, v. CIVIL ACTION - LAW RODNEY L. SHELLER, Defendant JURY TRIAL DEMANDED A VISO USTED HA SIOO DEMANDADO EN LA CORTE. Si usted desea defenderse de Ias quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) d{as a partir de la fecha en que recibi6 Ia demanda y e1 aviso. Usted debe presentar comparecencia escrita en persona 0 por abogado y prescntar en Ia Corte por escrito sus defensas 0 sus objeciones a 1as demandas en su ('.antra, Se Ie avisa que si no se defiende, e1 caso puede proceder sin usted y 1a Corte puede decidir en su contra sin mas aviso 0 notificaci6n por cualquier dinero rec1amado en 1a demanda o por cualquier otra queja 0 compensaci6n rec1amados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPRIEDADES U OTROS DERECHOS IMPORTAN'fES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFICINA EN LA D1RECCION F.SCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASlSTENCIA LEGAL, ," I n.u.-:: I.::. .\.,...,....11'.:. P. C. CUMBERLAND COUNTY BAR ASSOCIATION Law)'er Referral Service Two Liberty Street Carlisle, Pennsylvania 17013 (717) 249 . 3166 1-800-990-91 08 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ,,,"~ I', ..",. \ ",. " ,,,' .:.....r- '. , ... 1ft ''<;', .' . '. " ~', ~ '", ". ,,'" ".."", I J',. , . ~". ~. :, ~ - , " > '. . .. . . ',' IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ,PENNSYLVANIA MARTIN F. HOVIS, Plaintiff NO. (,2 _ 7.)0 2 (~v.;.(' -G ,.- : v. CIVIL ACTION - LAW . . RODNEY L. SHELLER, Defendant . . : JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff, Martin F. Hovis, is an adult individual residing at 422 Pine Road, Mt. Holly Springs, Pennsylvania, 2. The Defendant, Rodney L. Sheller, is an adult individual residing at 1426 Market Street. Apartment 2. Camp Hill. Pennsylvania. 3. On July 23. 1998, the Plaintiff was the owner and operator ofa 1987 Trek bicycle. 4, On July 23. 1998, the Defendant was the owner and operator of a 1989 Chevrolet Tracker. bearing Pa. registration plate AHE-8568. 5. On July 23. 1998. at approximately 6:35 a.m.. the Plaintiff was operating his bicycle eastbound on the south shoulder of S,R. 2003. Walnut Street. in the Borough of Boiling Springs and was approaching its intersection with T547. Race Street. 6, At that same time and place. the Defendant was operating his vehicle northbound on Race Street and had stopped at its intersection with Walnut Street for a lawfully posteA:! stop sign, '..u.I'''..'''.... ".". ,.." . . . .... \.,' ,..,'. ,~;.' j, . '. . , ':t' J ; , ' ' .~'. \; . . . .' _ . :. :}. \:." .. . , '." '. " 1).".1.1:..\.....'1.......1'.4'. ,.,,~.. I', ,..",.." " ,-.- 7. After stopping, the Defendant began to move his vehicle forward, crossing over the white line onto the traveled portion of Walnut Street, placing his vehide directly into Plaintiff's path of travel causing a collision which resulted in injuries and damages to the Plaintiff. 8. This accident occurred as a result of the negligence of the Defendant and was due in no manner to any act, or failure to act, on the part of the Plaintiff. 9, This matter is alleged to exceed the applicable limits of arbitration, and ajury trial is hereby demanded. 10. The negligence of the Defendant consisted of the following: a) Failing to properly operate and control his motor vehicle; b) Failing to keep alert and maintain a proper lookout for the presence of bicyclists and the Plaintiff in particular; c) Operating his vehicle in careless disregard for the safety of other persons, and the Plaintiff in particular, in violation of 75 Pa,C.S, ~3714; d) Failing to look to his left to observe the Plaintiff's bicycle prior to pulling his vehicle forward onto the traveled portion of Walnut Street; e) Failing to yield the right of way to the Plaintiff in violation of 75 Pa,C,S. ~3323(b); I) Pulling his vehicle forward onto the traveled portion of Walnut Street when he knew or should have known that the Plaintiff would not have sufficient time in the exercise of reasonable care to avoid striking the Defendant's vehicle; and g) Exposing the Plaintiff to an unreasonable risk of harm when the Defendant kne,w or should have known that the Plaintiff's bicycle was at such a close proximity so as to ',' ~.'.~"~~. ',. . ,'" '~" i~. "," _"-:,.,_' ,_.'" . ,"',' ,-- 'I, .,; " . , ., 2 ",.~.._~-,.~~..~ -~--""~ "" ---- ;-.I"f~~.: make it unsafe for the Defendant to have moved his vehicle forward, 1 L As a result of the negligence of the Defendant, the Plaintiff suffered serious and permanent injuries including, but not limited to, glenoid fracture of his right shoulder, contusions and abrasions, and a severe shock to his nerves and nervous system. 12. The aforementioned injuries constitute a serious injury as defined in 75 Pa,C,S, ~ 1702. 13. As a result of the negligence of the Defendant, the Plaintiff was forced to incur medical bills and expenses for the injuries he has suffered, the cost or reasonable value of which is, or may be, in excess of the sum recoverable under the Pennsylvania Motor Vehicle Financial Responsibility Law, and he will continue to incur medical expenses in the future. 14. As a result of the negligence of the Defendant, the Plaintiff has suffered, or may suffer, a severe loss of his earnings and impairment of his earning capacity. This loss of income and impairment of earning capacity has exceeded, or may exceed, the sum recoverable under the Pennsylvania Motor Vehicle Financial Responsibility Law, and the loss of income and impairment of earning capacity will, or may, continue in the future. 15. As a result of the negligence of the Defendant, the Plaintiff has undergone, and in the future may undergo, great mental and physical pain and suffering, mental anguish and humiliation, loss of life's pleasures, and a severe limitation in his pursuit of daily activities, all to his great loss and detriment. y,,~. I',. ,., " .." " .". 3 I I 11 , .. ,.,;: _ H"':: ::', ':--1 -;-'~ -; .....' )"'J' ." .-..'~o" "7-~. , "". :,.' , , \, .") . . . -, . , WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment against the Defendant in an amount in excess of the mandatory arbitration limits. RESPECTFULLY SUBMITIED: LAW OFFICES F DALE E. ANSTINE, P.C. K'. \ Grego E, Martin, squire Attorney LD. #38894 Two West Market Street P.O. Box 952 York, PA 17405 (717) 846 - 0606 j Uut: I:. ,~'''"'''I. ".f', \ ,,~. I',. 0>-1" ..... , 4 :1 II " \ .' .";,'.::, .'J .,',," _",': '" .' """~',':,~l "~;:'-",_- ,,;":';,", '.::'.' " .,.:....".'..' ". . ..." ,,'.. '......1.,...,,,.,,. " VERIFICATION I HEREBY VERIFY that the information set forth in the foregoing Complaint is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities, / I ,,' I . ./ ) I ._.' v;' --1/ ) . ," "." . ,"', I .l' t. -:r /\T-(~~t I f'\ . 'cL- /_, If. ,f.......-Y, MARTIN F. HOVIS Date: Dee 21 1998 I II >,' "',~" - " r ~",j,'-, ~~\;'.- -"',-. 0'" :. "~\J'-".' .~~,,, :.,,~'kf'~' :. -." "'_':: ':.' ''''.', .'_.; ,\.' .-:, '. " 'I' ~\ ..1:~. ~~ .~ nd ~ . .' () ~~t Igv~ , ,rt t" ~~ . 0 . r.l. LO . ~ ~ ~ W " w 4-fl; " . ~ . < Ii 0'- ~ " Z ",E- ~ 0 ~' w 0 tlrll < ~ w EZ tl ,. I ;; ~ 0< ~ "- Z , 0 ffi ;> ~ ~ ~ :5 . ~ p. ~ ~ 0 i ,a = ~ ~, ~ ..:l < ~ (1 " . SHERIFF'S RETURN - REGULAR CASE NO: 1998-07208 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOVIS MARTIN F VS. SHELLER RODNEY L BRIAN BARRICK . Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law. says, the within NOTICE AND COMPLAINT was served upon SHELLER RODNEY L the defendant, at 20:06 HOURS, on the 11th day of January 1999 at ~3 E PINE ST MT HOLLY SPRINGS. PA 17065 ,CUMBERLAND County, Pennsylvania, by handing a true and attested copy of the to RODNEY L. SHELLER NOTICE AND COMPLAINT and at the same time directing ~ attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 4.34 .00 6.00 So answe~ ..~' .!.<-/~ :r ~~ ...; """-:"""'C.,o<I."'.( -,4/' (.:;~<~...,.-:-:., ,... " ",.._or '.-, ,,'_'~_ . . I R. Thomas K11ne, ~her1~1 $28. 34 DALE E. ANSTINE r.J 01/ 12/1999 I) by / ~~ ,~i' Ikt/,,', /'-, epu y Sworn and th' I ,/1..' 18 .~.-- 19 99_ subscribed to before me (' I day of'7""'~"'.L A. D. \... I" ," (, P,,:!;, 1l;IJ:, / I I'rot1lono~ary' - ;-'-J~, .).;_Y.' ,;...-.:.-.. ,.." ,'.1 ,.;~...7;",~.~.,'~.'r:.,: ~ ".-:""''''''"': ~'-l'-r-.:z""'~"-:'"7~-"-'~',-t7'~';:" r-,!..~.l"'~7":~'~'- ::::.. .' _<; ',' .' ,"" .' .,,: j ." C-EBIlEICATE OF SERVICE ':l -'/J..t AND NOW, this' <:, day of January, 1999, I hereby certify that I have served tl10 foregoing Praecipe entering my appearance on the following by depositing a truo and correct copy of same in the United States mails, postage prepaid, addressed to: Grogory E, Martin, Esquiro LAW OFFICES OF DALE E. ANSTINE, P.C. Two West Market Street P.O. Box 952 York, PA 17405 ~~~~ James G. Nealon, III. Esquire Datod: I h<: /qq ,.,,' '.,., ,: "." .'. " ,',.: "."':'.'.'. ~"..,'^':".." :":"':,~ .,'.,"... .:4;, ;.:",' '" . - , .. ... ,- _' , .. I .' ." > .,.", . \ MARTIN F, HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. _ ,', :.' " . , .;. . _"', ~_' " " ~:. , 'i . ~.' t' .;.. 'r , . .: . ~, ,:.,"~ . ,', .,. v. NO. 98-7208 RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER 1. - 15. Paragraph two is admitted except that the current address of the Defendant is 103 East Pine Street, Mt. Holly Springs, PA; it is further admitted that on July 23, 1998 at approximately 6:35 a.m., Defendant was operating a 1989 Chevrolet GEO Tracker, Pennsylvania Registration No. AHE-8568, in a northbound direction on Race Street at its intersection with Walnut Street, South Middleton Township, Cumberland County, Pennsylvania; it is further admitted that at that time and place, Plaintiff was operating a bicycle in a westbound direction on Walnut Street, and that the Plaintiffs bicycle struck the Defendant's automobile; the remaining averments contained in Plaintiffs Complaint are denied pursuant to Pa. R.C.P. 1029(e). VERIFICAJION I, Rodney L. Sheller, verify that the statements made in the foregoing Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. ///) , I ')/ /~,,1 I" ; .. {\~...j ,/, 1,/ , I /{ (./ .{. L' Rodney LSheller Dated: . ' . "'. -.' "), ~ . .,', " . - ., - . - ',.-'-, '--. : ' , .: ", ',' . '. . , . ~ - . NEW MATTER 16. Any damages to which the Plaintiff is entitled are to be reduced in whole, or in part, in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Act, 75 Pa. C.S.A. 91701 et seq. 17. Any damages to which the Plaintiff is entitled are to be reduced in whole, or in part, with the Pennsylvania Comparative Negligence Act due to the contributory negligence of the Plaintiff. 18. The Plaintiffs claims have been discharged by the bankruptcy filed by the Defendant, Rodney Sheller, in the United States Bankruptcy Court for the Middle District of Pennsylvania, Docket No. 98-04268RJW-1. Respectfully submitted, NEALON & GOVER c:,l ~ ~< James G. Nealon, III, Esquire Attorney 1.0. No. 46457 301 Market Street, 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 717 -232-9900 .',J i! ~... ": . , ". . '. . . "!." '" I." .':: ..... I ,., "/ -" . ,-::' '. - ,.:". :: ~ . ". .' ", ~ " "" ",~, .', . . , CERTIFICATE OF SERVICE AND NOW, this Iv 'l/tay of February, 1999, I hereby certify that I have served the foregoing Answer With New Matter on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: Gregory E. Martin, Esquire LAW OFFICES OF DALE E. ANSTINE, P.C. Two West Market Street P.O. Box 952 York, PA 17405 ~~~~ James G. Nealon, Ill, Esquire Dated: Dl.II{g{q~ ~.,,-"._~ - ...........l ---~ "~~~-~.._' ,.,. ~, _ " ~. . ',',., ~. i. .:: ' '.f' '. .~ ,....-:-..' . .~.", . .," "\ ~',', ~. '.- ." ,J' . :. IN THE COURT OF COMMON PLEAS OF CUMBERLAND CO, PENNSYLVANIA MARTIN F HOVIS Plaintiff : NO: 98-7208 : CIVIL ACTION - LAW V RODNEY L. SHELLER Defendant : JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT 16. Paragraph 16 states a conclusion of law to which no responsive pleading is required, 17. _ 18. Paragraphs 17 and 18 state a conclusion of law to which no responsive pleading is required. To the extent that such a rcsponsive pleading is required is denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff, Martin Hovis, respectfully requests this Honorablc Court to enter judgment against the Defendant with interest and costs as allowed by law. Respectfully submitted, LA W OFFICE10F DALE E, ANSTINE, P.C. /~ BY: Gregory E~ Martin, Esquirc 1.0. No.: 38894 Two West Markct Strect P.O. Box 952 York, Pennsylvania 17405 (717) 846-0606 ,,,... I.'..h"'.... ,",,' ._-,<, ~ . '," "__;,' . ',' ~ "'. ~".' ',r., ~: ,~:,': '.::'.,>'.",.,:,;.~ ,'. " '. I, "....;'.,. .,- .' " . ._.~~ .... VERIFICA TION I HEREBY VERIFY that the information set forth in the foregoing REPLY TO NEW MA TIER is true and correct to the best of my knowledge. information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa.C,S, ~4904. relating to unsworn fa1silication to authorities, I ,<,' /. /, . i r.. ,"-" / / . .. ) J' '.- ., ....: ,/'..' I' l'" / . .... i( I; (n ". \:.r'I-f tc.,\ -- MARTIN F. HOVIS DATED: Feb 22 1999 . I n..t I 1:. .\.....11".1',(. ,,,,,,".",,,,,,,,,.'" II I I I II II ~.'- _..~"l7 .,' " _', . .' , '_',' , ' . " r,' . . ",' " ',,'" '. "'. " '.., '-. '." "..,",,"'. . 7"~'-" ....... CERTIFICATE OF SERVICE AND NOW, this 22 day of Feb, 1999, I, Gregory E. Martin, Esquire, a member of the Law Offices of Dale E. Anstine, p,c., hereby certify thatl have, this date, served a copy of the within and foregoing Plaintiff's Reply to New Matter of Defendant by first class United States Mail, postage, pre-paid, addressed to the party or attorney of rccord as follows: James Nealon, Esquire 301 Market Street, 9th Floor P.O. Box 865 Harrisburg PA 17108 Respectfully submitted, LAW OFFICF~<; OF DALE E. ANSTINE, P,C. BY: G,regory E. Martin, Esquire 1.0. No.: 38894 . Two West Market Strcct P.O. Box 952 York, Pennsylvania 17405 (717) 846-0606 It.,...: 1-;:'.\....'II~I. 1','" \ ,,,,,,.,.,,,,,,,,,,,,.. \ . ..' ,'. ,........ .....,.... ":,,', ..'. . .'.... .~...-.> ;':'-,' '.;".' .,.... :. ....' :." ,.' ..' . L'~--::Z ',Y, .i'r. .~ 1- UJ\;:) ~.>..(~::? r;t: -. 9 ',' H8~ ": -t 0:. ~U[' :"".' ,F t:3 C") ..:.J '.c.~ . -,--,'. '.- a.: ~ z ~:.,)< ():;;-;1 ()./.,,, (~223 :~~ (h -l.) .;;~ ~'~-::-r ::;,1l.D 11,';1_ -;. =j (,) .,,' , . i,' , . .,: ",' . ',' '.', . , , .,. '/ ,,' . .~ . ~ '" 1Il f- ~ W . ...Z w " . f- m < Olol ~ , ~ l!l!"i f- 0 tJw w . . ~ - Z " w ... < u ~ ... . ;;: 0< f- ... ~ ~ ~ 0 5 . ~, f- W ~ ll, ~ 0 0 ,; . lIlr = ,0 .:l /', <Ill ~ . MARTIN F, HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 98-7208 \ I \ " .' . .' .' .'.' >. . "'.' , t; >," ~... ... v. RODNEY L SHELLER, Defendant CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a Subpoena for documents and things pursuant to Rule 4009.22, Defendant, Rodney L. Sheller, certifies that: 1. A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least 20 days prior to the date on which the Subpoena is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to the Subpoena has been received, and 4. The Subpoena, which will be served, is identical to the Subpoena, which is attached to the Notice of Intent to Serve the Subpoena. i. DATE: 4/20/99 JAMES G. NEALON, ESQUIRE ATTORNEY FOR DEFENDANT NEALON & GOVER ATTORNEYS AT LAW , " 'j . , . " , - . . . .' ". .,'.' I ..' '. ,',I:. ," . , '. ". ' , 301 MARKET STREET - 9'" FLOOR P.O. BOX 865 HARRISBURG, PENNSYLVANIA 17108 717.232-9900 FAX: 717-2)6.9119 1S NORTI; CHERRY LANE YORK, PENNSYLVANIA 17401 717-852-7888 (CORRESPOND TO HARRISBURG) April 20, 1999 Carlisle Hospital 246 Parker Street Carlisle, PA 17013 In Re: Martin Frederick Hovis Social Security #: 166-46-3243 Dear Records Custodian: You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was serJed upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, 1.. ). )' Barbara Baker, Paralegal NEALON & GOVER } I. j' \.. , J \ BJBfbjb Enclosures JAMFS G.l'EALOl' III . MATnu:w R, GOVER' lllUAN W, PERRY' CHRISTOPHER J. Kl'lGIIT A rkOI1.!.'llo~~^l (~)krlJf,A111)~ MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO, 98.7208 RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Hospital Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9" Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: James G. Nealon, III, Esquire 301 Market Street, 9'" Floor Harrisburg, PA 17101 717.232.9900 Attorney for Defendant BY THE COURT: DATED~~ -11 Seal of the Court " . " .. ) ,': ." . " -. -- -~ - ".,' - -' - ," '~- .', "'.! ,\' . - " .' 'I ' .t . , ," " . . ~ .' . '. .' 'i '. ", . ..,~ --~~ ..0 )"~ ........ ,-I -'}~.... MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA, NO. 98-7208 .' . . . ' . '. :. , .: , ^, . , " . . . ." \'.,' " . ~ '" " ,', .' .' , v, RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO: Carlisle Hospital You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFiCATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009,23 I, Records Custodian for Carlisle Hospital, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian .~'r.......,.;,~.,~ "m. NEALON & GOVER ATTORNEYS AT LAW lOt MARKET STREET. 9"' H.OOR P.O. BOX 865 HARRISBURG, PENNSYLVANIA PIOK 717-232.9900 FA)(: 717.236.9119 1S NORTH CHERRY LANE YORK, PENNSYLVANIA 17<01 717.K52.7888 (CORRESPOND TO HARRISBURG) April 20, 1999 Gary Blacksmith, M.D. Medical Arts Building Carlisle, PA 17013 In Re: Martin Frederick Hovis Social Security #: 166-46-3243 Dear Records Custodian: You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, (-) I, . \' j I~ 11.'- I y: dl(;IJ<-- I )kCC.(_ Barbara Baker, Paralegal NEALON & GOVER BJBfbjb Enclosures JAMES G. NEALON 1lI . MATTHEW R. GOVER' BRIAN W. PERRY' CHRISTOPHER J. KNlGHT A. rRon:SS10l'OAl. COll-pounos .., I : '. ,',,,' " '. . 'I; ~' '," '. .-,' '; . ".',' , ~ " " .' . I,.. . , . I EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Gary Blacksmith ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: SUBJECT: SOCIAL SECURITY #: DATE OF BIRTH: Up to and Including the Present Martin Frederick Hovis 166-46-3243 5/14/59 "'./" ;....r .....;.. ...... .," . .~. ' " r' . ". . ",. '.: .'" " .: ': .' , - , . . ". . . MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO, 98-7208 RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO: Gary Blacksmith, M.D. You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Gary Blacksmith, M.D., certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian .- ~ .': , . . 1 ' . " ' '... .....,. ". ',.,.," ' . ~: " ' ._ '..'.. . . ", ,,' . Il!-; "",,~.JI:;I NEALON & GOVER ATTORNEYS AT LAW 301 MARKET STREET. 9'" FI.OOR P.O. BOX 8.5 HARRISBURG, PENNSYLVANIA 17108 717-232.9900 FAX: 717-23..9119 1.1 NOI\TII CIIERRY LANE YORK, PENNSYLVANIA 17401 717.852-7R8H (COIlRES\'OND TO HARRISBURG) April 20, 1999 Alexander Spring Rehab, Inc. 27 Brookwood Avenue Carlisle, PA 17013 In Re: Martin Frederick Hovis Social Security #: 166-46-3243 Dear Records Custodian: You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, " , .., t/) ,L:.\_ I' ;. " '.1.._J l. C '-. Barbara Baker, Paralegal NEALON & GOVER BJB/bjb Enclosures JAMES G. I'EALOS III . MATIlIEW R. GOVlR . !IRIAN W. I'ERRY . CHRISTOPHER J. KNIGHT ^ H,OIB"'J()~AL (UII!'>JIi.Anns ., ..\ , _', " , ' , ", ", . , . . ."1. '. l.' MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO. 98-7208 Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to . "',':,', ." .',.. -: '. '. . 1 " ! '. I " . '. ',,' . ~ '. ).. . (' .' , '. . . RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Alexander Spring Rehab, Inc. Market Street, 9" Floor, Harrisburg, PA 17101. comply with it. This Subpoena was issued at the request of the following person: James G. Nealon, III, Esquire 301 Market Street, 9" Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant BY THE COURT DATED Lt '. ? -1'; Seal of the Court EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Alexander Spring Rehab, Inc. ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: SUBJECT: SOCIAL SECURITY #: DATE OF BIRTH: Up to and Including the Present Martin Frederick Hovis 166-46-3243 5/14/59 ~ " '. .' ,. . '" ': . _ . '," . '" ,', .': +' . -.' ' . . .', ' .' . ':". .' ' . :' ., . " MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO. 98-7208 RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO: Alexander Spring Rehab, Inc. You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Alexander Spring Rehab, Inc., certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian . :. - ~ ,:' ", -;) "'.' ~~.~"',' .....1.~, ;.'~ " . :)' ". . " -, .,." ", ,':. '., _ ' - .,-~. i ~ NEALON & GOVER ATTORNEYS AT LAW ....'1' .\...., ',J,:',' '.'" ,:"'""~~:,':' '.'....~ '.-~,' ~7---' . ":_' ~ . ;: ~. "'" " " 301 MARKET STREET. 9'" FLOOR P.O. BOX 865 HARRISBURG, PENNSYLVANIA 17108 717.232.9900 FAX,717-236.9119 1.\ NORTH CHERRY LANE YORK, PENNSYLVANIA 17401 717.852.7888 (CORRESPOND TO HARRISBURG) April 20, 1999 Orthopedic Institute of PA 875 Poplar Church Road Camp Hill, Pa 17011 In Re: Martin Frederick Hovis Social Security #: 166-46-3243 Dear Records Custodian: You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, , )'). " \ , ) ),.I(( \... / Barbara Baker, Paralegal NEALON & GOVER BJB/bjb Enclosures JAMES G. J"EAl.O~ III . MATl1lEW R. GOVER. llI\1Al' W. PERRY. CHRISTOPHER J. KNlGI-n- A rf((ln":.lll~"'ll{\Rh.)lL""d~ iII:.-.' _____ MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO. 98-7208 RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Orthopedic Institute of PA Within twenty (20) days after selvice of this Subpoena, you are ordered by the Court to produce the following documents or tllings: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, S'h Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to Ihe party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a COUli Order compelling you to comply with it. This Subpoena was issued at the request of the following person: James G. Nealon, III, Esquire 301 Market Street, 9'h Floor Harrisburg, PA 17101 717.232.9900 Attorney for Defendant BY THE COURT: .1 Seal of the Court ()~ DATED 4. ~ ,.' 'if; , _' . I" ",~' " '~". ".'.,". F, . ,:".",' ..".-.')'~.'" ,".' '..'~,'".; ,f" h " " " ".... I ".. .' , '. . , ' ; .J-.., ,; -... -. ,'- -, EXPLANATION OF REJlli!RED RECORDS TO: Custodian of Records For; Orthopedic Institute of PA ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: SUBJECT: SOCIAL SECURITY #; DATE OF BIRTH: Up to and Including the Present Martin Frederick Hovis 166-46-3243 5/14/59 .... ..' ~ ...r:-."t . N,,' .~, "..~ ~, " '_ '__ .' M.......-....~. . ," . ., ,.:' : ',' ". r." ,,' .': ,:, . '. ',". ,:'. :. ",' '_ -- NEALON & GOVER ATTORNEYS AT LAW ',J'? . 'J' ...",,:...~.l':)::;:,""'-~~~."'~':~"":l-.~...\~.;r,-;,..~.i':l~"-'"(~'":"-::--:;;"""'l~.,:,-.,':l't::,"f';;;::---.f~--\ .";'-': '~"'."-~: . "1".- -. ~~ ",.) 301 MARKET STREET - 9'" FI.OOR P.O. BOX 865 HARRISBURG, PENNSYLVANIA 17108 717-232.9900 FAX, 717-236.9119 IS NORTH CHERRY I.ANE YORK,I'ENNSYLVANIA 17401 717.852-7888 (CORllESI'OND TO HARRISBURG) April 20, 1999 South Middletown Township P.O. Box 8 Boiling Springs, PA 17007-0008 In Re: Martin Frederick Hovis Social Security #: 166-46-3243 Deaf Records Custodian: You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, /) ,'] , I )C. " Il( l \ (- I )--c)--<..-"'-.. Barbara Baker, Paralegal NEALON & GOVER BJBfbjb Enclosures JAMES G. NEALON III' MATlliEW R. GOVER. BRIAN W. PERRY' CHRISTOPHER J. KNIGHT A. rl\on~~,]OSM, C\lRI"JRATIOS . ......~:t'-., - MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO. 98-7208 RODNEY L. SHELLER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: S. Middletown Township Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce Ihe following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9'h Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above, You have the right to seek in advance the reasonable cost of preparing the copies or produc:ng the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it This Subpoena was issued at the request of the following person: James G. Nealon, III, Esquire 301 Market Street, 9'h Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant BY THE COURT DATED 4- ~ flf Seal of the Court . '-, .,.'. ",., "t J:".....l.J:.. ",'~ ',',"!I",.,;:'7";.!;" ",...<,':":",.:~..,,,,,.:.... ;~ '. Y" ""',~~" :~"'~' " I,' "', '..'" _ ';.-'. . "..:- _.~_. - - t.___---.-.~.... EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: South Middletown Township Entire personnel file, including but not limited to applications for employment, correspondence, memorandum, health records, payroll records or other documents pertaining to: DATES REQUESTED: SUBJECT: SOCIAL SECURITY #: DATE OF BIRTH: Up to and Including the Present Martin Frederick Hovis 166-46-3243 5/14/59 .", ,'. ,.' I:,.:.'\,.,"~,""- - 1 ',_....~ :.'~~-c,-",}",,~,,:,,:~.:_,,:c;':":~~_>,: ", ";:,, _, ,: ',.... . ", .' . CERTIFICATE OF SERVICE AND NOW, this 20th day of April, 1999, I hereby certify thai I have served the foregoing Certificate Prerequisite to Service of a Subpoena on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: Gregory Martin, Esquire Two West Market Street York, PA 17405 , ,\ i, 'I \, Jam'f'ls G. Nealon, III, EsquIre ... ( !.' \;\\ "'''? -....-. ;-'~f~ " ".' :~.~, ....':.~"~,:-'~-'~,. ','~'"'."~-".,;'~ -,'~' ,..-...-.~--.. "", ""', ,,' , '.~,'.' . ,", - .-.-. -.. _.- PRAECIP~ FOR LiSTING CASE FOR 'l'RIAL . . (l~st be typewrotten ond .ubritted en dupllcatC, TO THE PRCYI'HOlCl'ARY Of C\.MlERJ.,,\.\D COUNTY PlBaSe hat the [ollCWlIlg cose, I Check on~) x tor ~URY trlcU ~t the next :t:.:Tl 0: ~~'Ji_ cou:..~. Eo" trial '.i,hout e. J'-'-"', --------------------------------- CAPTION Cf :ASE (enti=e CQption must be stoted or. full) ; chec:" 8r.e) : X) C:.v:.2 Ac+.1Qf\ LJ,'...' Appcai fr-::m h.."il~t::atocn I other) Martin F. Hovis I plointlff) vs. The tnal llst "ill "" ca.L"c en and June 13, 2000 Trial ~ comrence 0;1 July 10, 2000 Rodney L. Shcllcr , ~___) I De.enc=,- "~t"Oal5 '.lll be held on June 21, 2000 (&ie:s a...""e due S dai's t>e(;-repretrials.) vs. :~he party :i5tL~g thls ~a5e for :r:a: Ehall provi~e fort~'ith a copy cf the praecipe to all coun5~1. purSU~"t to ~ocal Rule 2l~.1.1 ~ >:0. 98 Civol 7208 ;'9 Indicate t~ attorney who wl:l try co~e :or tr~ pa:ty who flles tni& praeclp8: Gregory E. Martin, Esquire InO..icate tr:.a:' c0'J1so1 ~Cl- ct~.e= ~b.:.'tJ.cs 11 rU".QWj....1 James Nealon, Esquire for Defendant .-- .--......--....---- Thl~ caso lC =Gaey to: ~r~a: Slgr.Be. __~-, / ~T ~L: r';;i'lC; ~ Gregory E. !111rtin I Esq. 1D038894 Datet l.pr11 27 2000 r,\ \1O:T.e1' ~cl' PI a ilJ111L- .', " : "': '" '.. I." 1 _ ~ .:. .' .'~"' \ ,.7_~._. ~.,:, . ~'\~ ,-- -:. ,- , . ~ "" " . ,^', '.". I . ,J'" . ~'. . ~ ".' I , ~,:: :'~'t.;~~': ',,~_. ,- ".'- ,-, '.~ ~<: ",'~~.,:':, ,J"l;:- "~:~~-,,,~~'n""-r~~_'i'-~':'l -,,'~ -.' u'r:-r,:, .T'~,'- . .', -: ,. '.'.' ", ... MARTIN F. HOVIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYI,vANIA V. NO. 98-7208 CIVIL TERM CIVIL ACTION - JURY TRIAL RODNEY L. SHELLER, Defendant VERDICT SLIP QUESTION 1: Do you find that the Defendant, Rodney Sheller, was negligent? YES x . NO If your answer to Question #1 is "No", plaintiff cannot recover. You should not answer anymore questions and you should return to the Courtroom. If your answer to Question #1 is "Yes," proceed to Question #2. QUESTION 2: Was the negligence of the defendant a substantial factor in bringing about the accident? YES -X-- NO If your answer to Question #2 is "No", plaintiff cannot recover. You should not answer anymore questions and you should return to the Courtroom. If your answer to Question #2 is "Yes," proceed to Question #3. . "," \..' .., ':'.'~":-,:"-~"~/,_,;-"~' ,.:j:"'-..-o;-'~'~:',C'~~-'-7'~,:~r, ;\-."~.-"',~ ,," -:-" '.:', "."',.," ",' .... '.::::z.~ A~ ~ QUESTION 3. Was the plaintiff, Martin Hovis, contributorily negligent? YES x NO If your answer to Question #3 is "No," you should not answer anymore questions and should return to the Courtroom. If your answer to Question #3 is "Yes," proceed to Question 114. QUESTION 4: Was the negligence of the plaintiff a substantial factor in bringing about the accident? YES NO x If your answer to Question #4 is "No," do not answer Question #5. If your answer to Question #4 is "Yes," proceed to Question #5. QUES'l'ION 5. Taking the combined negligence that was a substantial factor in bringing about the accident as 100 percent, what percentage of that causal negligence was attributable to the defendant and what percentage was attributable to the plaintiff? Defendant, Rodney Sheller % plaintiff, Martin Hovis % TOTAL 100% DATE: '1/1 \ ! 2.,')<" -_._------~-_. 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",' 1""-) . - :', " . - ,. ,., I~ ~ .-, I ..... f <il .1 i) c ~I ( ',,/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Martin Hovis No: 98-7208 v Rodney Sheller CIVIL ACTION - LAW PRAECIPE TO REMOVE To the Prothonotary: Curtis Long (X) Please mark the above captioned action SETTLED AND SATISFIED OR ( ) Please mark the above captioned judgment or Iier settled and satisfied. , j~ ,,-:::--\\\ , Gregory E. Martin, Esquire Attorney for the Plaintiff 1.0. No: 38894 cc: DAVID FREED, ESQUIRE PLEASE ISSUE A CERTIFICATE OF SETTLEMENT AND SATISFACTION TO ATTORNEY MARTIN. ,,,~.. I.,,,,,,, 4'., , . I. ,:':~ .,"~~' \.~ foi!:".','-r""l _,.~:~::"~,:~",~'i'7;--'-Y.,,,,~,:;;I,,,"*\'l';J'~f.:n:,:~h""l~. ,'; :.,,;,...,:.t:J,,_,,^",~ \ ~''"',.,.,', .. ""', .., .,.' , ~ _f-:"'~. ...-' __..; ~'"