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Home My WebLink About00-07560 , ~ -I , -,' ~~I$.'j #4 KRISTI E. HIGGINS and FLOYD C. HIGGINS, individually and as parents and natural guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CIVIL ACTION - LAW R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants NO. 00-7560 CIVIL TERM IN RE: PRETRIAL CONFERENCE ORDER OF COURT A pretrial conference was held in the chambers of Judge Oler in the above-captioned case on Wednesday, January 15, 2003. Present on behalf of the Plaintiffs was Thomas E. Brenner, Esquire; present on behalf of Defendants was Michele J. Thorp, Esquire, standing in for Steven E. Geduldig, Esquire, who will be trying the case. This is a negligence action for personal injuries to Plaintiff Kristi E. Higgins arising out of a one-car accident on October 29, 1998, which occurred when Plaintiff Kristi E. Higgins, lost control of her vehicle at a construction site due to allegedly negligent maintenance of the site by Defendants. Plaintiff Floyd C. Higgins sues for loss of consortium. (The case has been settled to the extent that it involves the minor Plaintiffs, Ashley Higgins and Kevin Higgins.) Defenses include a lack of negligence, contributory negligence, and a denial that the accident occurred in an area of Defendants' construction. This will be a jury trial in which each side will have four peremptory challenges for a total of eight. The estimated duration of trial is two days. j~ - I. l!<IIij,- With respect to availability of counsel, it is noted that both Plaintiffs' counsel and Defendants' counsel have another trial scheduled for the forthcoming term of court in Cumberland County, and that both counsel have requested that that case precede this case to trial. To the extent that any deposition testimony is to be shown or read to the jury and contains objections being pursued by counsel, counsel are directed to submit to the Court at least three days in advance of the trial term a copy of any affected transcript containing objections being pursued with the areas of objection in the transcript highlighted and with brief memoranda in support of their respective positions on the objections. One issue in this regard which is expected to arise concerns the admissibility of testimony of Plaintiffs' treating chiropractor in light of the chiropractor's apparent reluctance to reveal to either counsel any notes which may have been made on the cover of his file in Plaintiffs' case. (It does appear that the records contained in the file have been revealed to counsel by the chiropractor. ) With respect to settlement negotiations, Defendants have made more than a nominal offer for settlement and it does appear to the Court that there is a reasonable prospect of settlement of this case. By the Court, Thomas E. Brenner, Esquire 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 For the Plaintiffs Stephen E. Geduldig, Esquire Michele J. Thorp, Esquire 305 North Front Street Harrisburg, PA 17108 For the Defendants pcb ,-1- ~1!!l1;o, , _~_,," .-~ -- "-"I' ~- .'-" .---,-- "" '''-0 ."" _ _~' " ok- " "'.-" .-e''-- 0", ,__._'-,;: __, 1<;-;' .,. - -.. ',c' ,-i,,-'- __,__,'. __ ',._, " <,_,I . /~ "..-' . JAN 1 0 2003 l/ Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Te1ephone:.(717) 234-4161 Attorneysfor Plaintiffs KRIST! E. IllOOINS and FLOYD C. IllOOINS, Individually and as Parents and Natural Guardians of ASHLEY IllOOINS a minor and , KEVIN IllGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW v. NO. 00-7560 CIVIL RS. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED PRE-TRIAL MEMORANDUM OF PLAINTIFFS KRIST! AND FLOYD HIGGINS I. FACTS AS TO LIABILITY This matter arises from a motor vehicle accident that occurred on October 29, 1998 on Route 114 in Silver Spring Township. A road construction project was ongoing at the site of the accident performed by the Defendants. Kristi Higgins operated her 1998 Ford Expedition traveling in a southerly direction on Route 114. The Defendants' road construction project had closed the right hand lane of the southbound lanes of travel, causing her to operate her vehicle in the left hand lane of the southbound travel lanes. The berm area to the left of the travellane contained a drop-off that was not marked or barricaded to prevent vehicles from entering into j "I' ~ -'+0'0 ,",'- -, ." '<J.'~ -:j ~_ --,. . '~: - :",' -'-,::- '-"'~-'-'-" ' , n~: this drop-off area. Mrs. Higgins traveled off the road into the berm area, which was significantly lower than the road surface. As she sought to move her vehicle back into the travel lane, she was unable to keep control of the vehicle and it rolled over, resulting in injuries to Mrs. Higgins. The Defendants were negligent with regard to failing to warn motorists of the drop-off area. The Defendants failed to barricade or utilize cones to keep traffic away from the drop- off and excavation in the berm area. Defendants also failed to provide lighting through the construction area so that drivers such as Mrs. Higgins could observe the dangerous condition created by the drop-off and excavated berm. II. DAMAGES Mrs. Higgins was taken to the Harrisburg Hospital following the accident and released with neck and back pain and multiple contusions. She subsequently treated with Dr. Kevin Jackson, a chiropractor, and the Warner Chiropractic Center through June 1999. She was unable to work per her doctor's instructions for several weeks following the accident. Her family has subsequently relocated to Florida where she continues to seek periodic medical treatment with Dr. Lewis Arrandt of the Wellness Center in Miami, Florida. Dr. Arrandt will testify as to his opinion that she has 10% impairment of body function. 2 j~ --,.. "', 1';--::' ,.~_,-_,w- . - ..1 "--':--j '---,<.1":--- ,----,---",,-,--,'--;,-',:' <'.':'-',;"'-,.'0"_-_'-: ,_-;' u.i t' . III. PRINCIPLE ISSUES OF LIABILITY AND DAMAGES 1. Were Defendants negligent? 2. Was Kristi Higgins comparatively negligent? 3. What damages were caused by the negligence of the Defendants? IV. LEGAL ISSUES REGARDING ADMISSIBILITY OF TESTIMONY There are no disputed legal issues as to the admissibility of exhibits or testimony v. IDENTITY OF WITNESSES 1. Kristi Higgins 2. Floyd Higgins 3. Officer James Adams 4. Dr. Lewis Arrandt (by deposition) 5. Officer William Burger 6. William Dressler (as a cross examination) 7. Defendants witnesses (as on cross examination) 8. Donald Mowery (as on cross examination) 3 "_'"."c '<I;:", ,--,,~ '-'_io -".H , .r --:: }t~' ~ r' - >'-,--"',--;-,'_">:J"- '","',-,.-,-,.-:-;, "',;-;:'.','.:<-'>'F'-'--"--' -"." ---'j -",-" "":: VI. EXHIBITS 1. PennDOT Construction diagram 2. Photographs of scene 3. Medical lien documentation 4. Construction contract between R.S. Mowery- & Sons, Inc. and Leon Wintermyer, Inc. 5. Subcontract between R.S. Mowery- & Sons, Inc. and Leon E. Wintermyer. 6. Time sheets of Leon Wintermyer, Inc. 7. Project documents 4 ~ ;,,'-,,;,,":_. _.1_';.-,."- _""'r.'''' ,^O'l, "---',,/',' I . c, ^ -_e"'-'-'/__'i;"',,?'_ ~-.'- ,..,.~ ' -,.'_".-..,,,,,';.,.-.," "'''I "('iJ i 1 I VIT. CURRENT STATUS OF SETTLEMENT DISCUSSIONS A demand for settlement of$ 20,000 was made. Defendant's highest offer has been $ 8,500. Respectfully Submitted: GOLDBERG, KATZMAN & SHIPMAN,P.C. BY~. Thomas E. Brenner, Esquire Attorney J.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffi DATE: 'I q/O] 5 ~ ~. 0" ,"'.'"","'-",'.' "-"-".:' q",,- ;1' ~.:,-,~ l "" o,_",_-~ - ,~"'~" "",.,,,,, ",,, .; ."_.,--,,_.-'-',,-.--- '. . ,,'_'_'.n__-' ':"._,,:,,;':,-'j,,'" 1,:"" f!!) JAN 0 9 2003ty Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seolaltthlaw.com Attomeys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants Pre-Trial Conference: 1/15/03 10:00 a.m. Before The Hon. J. Wesley 01er, Jr. JURY TRIAL DEMANDED PRE-TRIAL MEMORANDUM OF DEFENDANTS, R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC. I. BRIEF NARRATIVE STATEMENT OF THE CASE This is a single vehicle accident on Route 114 between route 81 and route 11. On October 29, 1998, at approximately 9:15 p.m., Plaintiff, Kristi Higgins, was driving a 1998 Ford Expedition south through a construction project 300' west of Willow Mill Park Road. Plaintiff allowed the driver's side tires to leave the roadway surface and travel onto the berm. When this occurred, the vehicle went out of control. Defendants, R.S. Mowery & Sons, Inc., and Leon E. Wintermyer, Inc., were performing road construction in the general vicinity. However, Defendants believe the accident occurred outside the limits of their construction and that Plaintiff ran off the road because she was distracted by her two young children in the back seat. ~ "'" ....1 -, ; I -.,,' r -"j ..".'....1,.,"'.' -'-, - ---.,-- ;;"""" ;;:f:,"~ ^ . II. LIST OF TYPES AND AMOUNTS OF ALL D~GES CLAIMED Defer to Plaintiff. III. LIST OF NAMES AND ADDRESSES OF ALL PERSONS WHO MAY BE CALLED AS WITNESSES, CLASSIFYING THEM AS LIABILITY OR DAMAGE WITNESSES A. Liability Plaintiff, Kristi Higgins, as on cross-examination Peggy Bressler William A. Burger, Jr. , investigating officer William Dressler Donald Mowery Calvin Heinl, project inspector, D.E. Consultants Any witness identified by any other party in discovery Any witness identified by any other party in its Pre-Trial Memoranda Defendant reserve the right to supplement this list prior to trial B. Damages Plaintiff, Kristi Higgins Defendant William Dressler Defendant Donald Mowery Defendant may call at trial as an expert, Robert R. Dahmus, M.D., Defendant's IME physician Records Custodians for all health care providers identified in discovery Any health care provider identified in discovery 2 ~"i I, ro', I~,.. , ;(" " 'I 'r 'J-::,:~ ~"~ "~ , , .~ Ii Any witness identified by any other party discovery Any witness identified by any other party in its Pre-Trial Memoranda Defendant reserve the right to supplement this list prior to trial IV. LIST ALL EXHIBITS WHICH A PARTY INTENDS TO USE AT TRIAL Enlargement of photographs of scene of accident taken by William Dressler Enlargements of photographs taken by Plaintiff's counsel Police Accident Report Plaintiff's deposition transcript Deposition transcript of Donald Mowery Deposition transcript of William Dressler Transcribed statement of Peggy Bressler Robert R. Dahmus, M.D., IME report Robert R. Dahmus, M.D., videotape Deposition Plaintiff's Complaint Plaintiff's Answer to New Matter Plaintiff's medical records from pinnacle Health Hospital Plaintiff's medical records from Kevin Jackson, D.C. Plaintiff's medical records from Warner Chiropractic Center Plaintiff's medical records from Quantum Imaging Plaintiff's medical records from Lewis J. Arrandt, D.C. Plaintiff Employment records 3 ~; 0.'_", 'I', . ^,;' "", o,~..: c.', __ I. "j':--,:--~"' ~. '~'" - -- 0 , pennsylvania Department of Transportation Inspector Diaries of construction area Time Sheets of Leon Wintermyer, Inc., of construction area Drawings for Highway Occupancy Permit for Improvements for Intersection of SR 0114 and SR 0011 to Silver Spring Township prepared by Sheladia Associates, Inc. construction contract between R.S.Mowery & Sons, Inc., and Leon E. Wintermyer, Inc. Subcontract between R.S.Mowery & Sons, Inc., and Leon E. wintermyer, Inc. Highway Occupancy Permit No: 813367 Al,y exhibit identified or admitted in evidence into any deposition in this case Any exhibit identified by any other party Defendant reserve the right to supplement this list prior to trial V. COpy OF WRITTEN REPORT OR ANSWER TO WRITTEN INTERROGATORY CONSISTENT WITH RULE 4003.5 CONTAINING OPINION OF EXPERT WITNESSES See attached report(s) of Robert R. Dahmus, M.D. VI. STIPULATION OF THE PARTIES, IF ANY None at this time. VII.ESTIMATED LENGTH OF TRIAL 2 days. , VIII.SCHEDULING PROBLEMS Both Plaintiffs' and Defendants' counsel also has listed for the same trial term in Cumberland County the matter of Wiker v. West Shore School District. 4 I'" ,,- , ,~, -- "'-,,", . "~- I' , - "'"--j<" , I '",,""::', "--.:..:'~'., -- iolt5. , IX.SPECIAL EVIDENTIARY ISSUES 1. preclusion of evidence of Plaintiff's medical conditions related to the accident based on chiropractor Arrandt's failure to disclose his entire file. X.REALISTIC SETTLEMENT OFFER OR DEMAND Plaintiff has not submitted a reasonable demand. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP d'7 (0 3 ~ ----~ <- By: 184623.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. 5 11' t ,j - ,- I ^^ : I ^^ , '~.' . - 0", ,. "-,C''''','V,'" 0""--' , "-'..',,:!,,-', --, ,,-,-; 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 Mail, postage prepaid, at Harrisburg, Pennsylvania, on the '-;J/( day of January, 2003, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, pennsylvania 17108-1268 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP " Stephen E. Geduldig, Esquire :140855.1 ~. I. L. ....w...-..~", BALINT BALOG, M.D. RICHARD J. BOAL, M.D. ROBERT R. DAtlMUS, M.D. S'rePlmN. W. DAILEY, M.D. WILLIAM W. DeMUTH, M.D" F AC,S. JOHN R. FRANKBNY n, M.D" F AC.s, MARKR. GRUBB. M,D. R1ClfARD H.IIAU.OCK, M.D. JAMES R. IlAMSI1ER, M.D" FAC.S. ~~"""^~ ~p' GREGORY A. tfANKS, M.D. ALEXAl'IDBR KALENAK M.D., F AC.S. ROBElIT R. 1lANEDA, 0.0" F.A.C.O.S. ROI"iALD W. LIF'f'E. M.P., F.A.C.S. JAsoN. J. UImN, M.D. eRNtST R. RUBBO, M.D. WILLIAM J. POIACIfECK, JR, M.D. SrnveN B. WOLf, M.D. TtlOMAS J. YUCtlA. M.D. ORTHOPEDIC W5'IlTUTE OF PENNSYLVANIA TELEPllONE: (717) 761-5530 . (800) 834-4020 . FAX: (717) 737-7197 . www.orthoinsliluteofpa,com January 22, 2002 Stephen Geduldig, Esquire P.O. Box 999 Harrisburg, PA 17108 RE: HIGGINS, KRISTI 592 86 9374 Dear Mr. Geduldig: I am sending this letter after reviewing x-rays that you sent to me regarding Kristi Higgins dated April 17, 2000. Of note, these are copies of x-rays from her chiropractor, Dr. Arrandt, D.C. In reviewing these x-rays I cannot see anything significantly wrong. They alignment of the spine is normal. There is no evidence of fracture. There is no evidence of any significant degenerative change in the lower spine, in her pelvis or her hip joints. The SI joints are within normal limits. This would basically go along with what the hospital x-rays report said of her pelvis area that is basically a normal exam. Looking at these x-rays does not change my opinion as previously stated in the IME I performed on November 29, 2001. RRD/clz 0lm101'EDIC SURGf:OI'lS, LTC, CAMP' DILL OffiCE 3916 TRINDLE RD. ADDRESS ALL CORRESPONDENce TO: 875 POPLAR CHURCH ROAD, CAMP HILL, PA 17011 UARRlSBURG OFfiCE CAMP' DILL OFFICE UERSUBY OffICE 450 POWERS AVE. a90 POPLAR CHURCH RD., sm. 108 32 NORTHEAST DR., STh. 201 CAttlP ifiLL OFfICE 875 pOPLAR CHURCH RD. - ~ - J_ ~~.i4'<> i,\' BALINT BAL<JQ M.D. RlCtiARD J. BaAL, M.D. ROBBRr R. DAJiMUS"M.D. STEPHEN W. DAILEY, M.D. WILLIAM W. DEMUTtI, M.D" F AC.S. JOliN R. FMNKENY II, M.D., F .A.c.s. MARK R. GRUBB, M.D. RICHARD Il. IWJ~CK, M.D. JAMES R. IlAMSIlER. M.D" f AC.S. // GREGORY A. HANKS, M.D. ALEXANDER KALEl'iAK, M.D" F.A.C.S. ROBERT R. KANEDA D.O., F .A.C.O.S. RONALD W. LIPffi, M.D., f AC.S. JASON J. LITION, M.D. ERNEST R. RUBBO, M.D. WILLIAM J. PDlACHECK, JR., M.D, STEVlIN B. WOLf. M.D. THOMAS J. YUCHA, M.D. /~Ip. ~j'---' ." ORTHOPEDIC IN"STITUTE OF PENNSYLVANIA TELEPHONE: (717) 761-5530 . (800) 834-4020 . FAX: (717) 737-7197 . www.orlhoinstituteofpa.com November 29, 2001 Mr. Stephen E. Thomas, Thomas P.O. Box 999 Harrisburg, PA Gedu1dig &. Hafer 17108 RE: HIGGINS, YRISTI 2513 Tremont Dr Eustis, FL 32726-0000 592 86 9374 19425025 Dear Mr. Geduldig: This is in reference to KRISTI HIGGINS who I initially saw in the Hershey Office on November 29, 2001 for an independent medical examination. Kristi is a 28-year-old female who comes in today for an IME regarding her continued neck and low back trouble. Kristi was hurt in an accident back on 10/29/98. She explained the accident to me and it is what I read in the records prior to seeing her also. Basically she was driving an SUV that unfortunately gOt:8tuck ina ditch next ,to. the road and because of this and ,because, of getting both tires into the ditch, her car was pushed into the median and she flipped threeorfour' times. She was taken by ambulance at that time to the Harrisburg Hospital. Of note is that she had her two small children in the back when this happened. Her small children were injured but according to her they are doing just fine now. She on the other hand is still complaining of pain in her neck, pain in her right shoulder, pain in her lower back, especially on the right side and some pain into her right leg at times. She does not have any numbness, tingling or weakness anywhere she says. She just has pain. She has no bowel and bladder complaints. The only problems that she has are truly on the right side of her spine. She gets an occasional pain into the left of the spine area in the left shoulder and left buttock area, but these are rare and not significant problems. Her problems are to the right and the trapezial area, the right lumbar area and the right buttock area. She is not in any physical therapy program at the present time. She has not really been in any physical therapy. She is not taking any medicine for this ,problem at the present time. She has never taken any medicine for this problem since she has been injured, ' She basically has seen a chiropractor since her injury. She has seen three different ones because of travel issues. She first saw Dr . ,Jackson but since they lived too far away, she transferred her care ,to Dr: Warner in Mec:hanicsburg. She has now moved to Florida and her care is' now being taken over by Dr. Arrandt. She.has never ORTIlOPEDIC SURGEONS, LTD. ADDRESS ALL CORRESPONDENCE TO: 875 POPLAR-CHURCH ROAD, CAMP HILL, PA 17011 CAMP HILL OFFICE HARRlSBURG OFFICE CAMP HILL OFrlCE HERSHEY OrrlCE CAMP HILL orner. .3916 TRINDLE RD. 450 POWERS AVE. 890 POPLAR CHURCH RD., STE. 108 10 WEST CHOCOLATE AVE" STE. 105 875 POPLAR CHURCH RD. ... I., CC - >>~~J -~ RE: HIGGINS, KRISTI PAGE 2 November 29, 2001 seen an M.D. or a D.O. For this problem except when she saw the Emergency Room physician the day of the injury. She has not been in any exercise program. She has been told that she is not allowed to do any heavy lifting which is why she says she is not working. Of note however she has a 10 month old child and a 2-year-old child and she does lift them. She says she is really not supposed to be doing that but she does it. I am not sure why she is not allowed to be doing this. She has never had any MRI scans or CAT scans since she has been injured. Obviously her chiropractic physicians do not think that these are necessary since they have been following her so closely for the past three years. The only diagnostic test that she has had were the x-rays taken in the Emergency Room at the time of injury and several different times by the different chiropractors that she has seen. Of note is I have not seen any x-rays, I have just seen reportsc These reports include cervical spine x-rays and a pelvis x-ray from the hospital which were read as normal. There is no evidence of any problem with the lower part of her lumbar spine on this pelvis x-ray which would obviously be very easily seen. Her cervical spine was also read as within normal limits. She has had several chiropractic readings since that time that show multiple subluxations but I would have my doubt that these are real based on the fact that they say there is a subluxation up at Cl and if there was truly a subluxation at Cl, she should have had some very significant neurologic injury such as Christopher Reeves incurred when he had the injury up at Cl. Cl is not a vertebra that is subluxated. This would also have been seen on the regular x-rays. These x-rays were read by an independent radiologist, not by a treating chiropractor. Of note and as previously stated, no significant pathology much have been anticipated over the past three years since no further scanning has ever been done outside their own offices. More importantly she has never been on any anti-inflammatory medicine or in any exercise program. She says she has been told to walk and that is all. She complains of pain as stated in the neck on the right side, the right trapezius into the right shoulder area and the right part of her lower back into the right buttock. Otherwise she has some mild complaints here and there but nothing of any significance. She says she is markedly better than she was before. I asked her point blank why she has not seen an M.D. or a D.O. in all these three years. She says she believes in chiropractic and that is why she hasn't gone anywhere else. I asked her if she is not better after three years whycshe hasn't gone someplace else, and she really can't give me a good reason. She says she is feeling better but obviously she is Qot back to normal. I cannot agree with the type of care that she has had. I have no problem with patients going to see chiropractors for back trouble. I think many people are helped very significantly by chiropractic care. However, someone who has been having trouble for three years and has not sought attention somewhere else makes me wonder either that there is not truly something wrong, or they don't want to get betterc Patients who are not getting better when they see their own physician for four, five or six visits always tend to get second opinions. There is no second opinion here. It has always been chiropractic care. On physical exam today she is definitely tender to palpation on the right side of her neck and throughout the right side of the trapezius. She also has some tenderness to palpation throughout the left trapezius. I cannot ,,", I ~ ~I Ii: -', <:,. RE: HIGGINS, KRISTI PAGE 3 November 29, 2001 feel any spasm anywhere to palpation today. She does however complain of this tenderness over and again. I do not doubt that the tenderness is real. However I also do not doubt that if she had been in a good exercise program, a lot of this tenderness would be gone based on the fact that her neurologic exam of her upper extremities is normal, range of motion of her neck is normal, and I cannot feel any spasm to exam. Of note, although her range of motion is normal she does hurt at extremes of motion in the areas previously mentioned, that is the right side of her neck, the right trapezius, and she does get a little pain in her left trapezius when she puts her neck through a range of motion. However she can get her neck through a full range of motion as previously stated. She has no significant tenderness throughout the thoracic spine. She gets tender again at about the L2 level and gets more tender at about the L-S junction. She has tenderness to palpation throughout the left side of her lumbar spine but moreso on the right side of her lumbar spine to palpation. She has tenderness to palpation in both buttocks, over both SI joints, but neither of these are significantly tender. I cannot feel any spasm when I do this. Of note is she is very overweight and that might be why I cannot feel the spasm down here. She does not have tenderness when I palpate in the sciatic notch bilaterally. As far as neurologic exam is concerned she has 5/5 strength throughout her upper extremities as well as her lower extremities. She has a negative straight leg raising test bilaterally. When I do a straight leg raise test she gets tightness in her hamstrings and her buttocks. This is not pain. This is tightness and this is because she is out of shape. She needs to get into a good exercise program and this tightness will go away. Range of motion of ankles, knees and hips is normal. Range of motion of these joints does not cause her any pain. When I have her cross her leg and stress the SI joint she does not get pain in the SI joint. She gets some tightness and some discomfort in the groin area bilaterally. Again this would go along with significantly tight adductor muscles as well the muscles that cross the anterior part of the hip joint, that is the rectus femoris and the muscles outside the iliotibial band. This again goes along with tightness and muscles that are out of shape. She has no loss of sensation throughout her extremities of any significance. At first I thought she had some decreased sensation throughout her right hand but on repeat testing on the same dermatome, tbe same dermatome was normal in one place and not normal in another place, and therefore this would be something that would not be considered to be real numbness but just strange dysesthesia for whatever cpuse. Obviously her chiropractors never thought this_was important since no scans have ever been prescribed. She definitely does not have any strange feelings or loss of sensation throughout her lower extremities. Her deep tendon reflexes are 0-1/4 bilaterally at the ankles, knees, biceps, triceps and brachioradialis. It is interesting in reading through the chiropractic notes, it says her reflexes are sluggish. That does not mean anything. A sluggish reflex that is the same one side to the other is a normal reflex. No reflex is important and clonus is important, but a reflex that is slow or sluggish or whatever they mean by sluggish, means nothing as long as it is the same one side to the other and their reports have said that. ,Therefore basically her sensory exam is normal, her motor function is normal, her deep tendon reflex exam is normal, her straight leg raising testing is normal, and therefore her problem is continued muscle aches and muscle pains, and a good , I l , " -.""'~ ~'Jl;I!> , RE: HIGGINS, KRISTI PAGE 4 November 29, 2001 exercise program over these past three years should have been able to get rid of that. I do not think she has been treated properly. Based on reading the records and talking with her, she did have a significant injury with what sounds to be a whiplash type injury to her neck and significant soft tissue sprains and strains of her back and buttock. However I cannot find any neurologic significant problem here. Obviously the chiropractors have thought the same since no scans have ever been ordered. If they thought something was significant and no scans have been ordered I would have considered that malpractice. Basically she needs a good exercise program. She needs some anti-inflammatories to help her through the initial phase of the rehab program but then she needs to get back to regular activity. The fact that she can lift"her child means that she could be doing the type Qf job she was doing before, that is being a K-4 teacher. She says she wasn't able to do that job now because she is not able to lift heavy. I see no reason why she can't lift the type of weight necessary to be a K-4 teacher, that is up to 20-40 lbs. There would be very few pre-kindergarten children that weight over 40 lbs. With a good exercise program I would expect that she could get back to doing whatever she wants to do. I basically believe that this woman as previously stated had a significant strain type injury and that is basically what the Emergency Room physicians found also. I believe she also had multiple contusions as the Emergency Room physicians found. I do believe however that if she had been treated more properly, that is with some chiropractic care but better anti-inflammatory medicine which basically would, be any anti-inflammatory medicine since she took none, and a good exercise program, she would be back to normal by this time. The reason I can say that is not only because of my physical exam today but by the fact that she has been followed by a chiropractor in different places for three years now and no scans have ever been ordered, basically meaning that they have never thought anything was significant enough to be worried about any significant neurologic problem. I hope this information is helpful to you. S' ~l;:, ,/-) //'~C:;~'C .. / ~'Ii ;' I, ,- .-., ,.- --.. r Ro rt R. Dahmus, M.D. RRD:gld ---'''.'r _ ',__ <. , ,'''", -~--", - ! Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Sbipman, p.e. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717)234-4161 '1..'.-. ,'-"". ,-,:f~;, ~-c'.-I~:'~",:: "";'1' ,---,,-',!- . , , .II" " ,.,.. . , Attorneysfor Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Kristi E. Higgins and Floyd C. Higgins, individually and as parents and natural guardians of Ashley Higgins, a minor and Kevin Higgins, a minor Plaintiffs v. RS. Mowery & Sons, Inc., Leon E. Wintermyer, Inc. Defendants : CML ACTION : NO. ()6- 76(;0 ~ : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly issue a Writ of Summons in the above-captioned action against the Defendants, RS. Mowery & Sons, Inc., 625 Hamilton Street, Carlisle, Cumberland County, Pennsylvania, and Leon E. Wintermyer, Inc., 220 Yocumtown Road, Etters, York County, Pennsylvania, 17319. DATE: 10 '~Cc -00 53795.1 GOLDBERG, KATZMAN & SIDPMAN, P.C. ~~ ~, '"""" Atl6rney lD. No. 32085 320 Market Street P. O. Box 1268 lIarrisburg,PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffi ,~'" ~--, -', ~"-'i--~;;""'" - ':"iIilIl1 """"',""" ,.,,'., " .. ---. ',,:.'''' II. 1.1. . . ... .' ,- -" , ., ~~ .<, ,. '._ . ~. .,. 7,... '",,'.. , ,'.,", . Q~ d-.. ~ ~ ~ ~ ~ ~ o' - ~ ~ ;:-", -, ;~;. "'" '~~ - ~~ " '^ <;:,I. ._0 ",w,",' "" ,-;...,,,,-, 1.1.. 1ll!2'!lllI. 8 ~ -0'0) 01n-1 2::t; zr CI>.f: -<:.0<::':" kO )> z0 5>0 c: 2 =< "'-,. <:.::> a Cl n -l N 0, ..:.~ ::n ',--,r-n ~i;c~ .:1'"---:"1 D.L -.::;;'(") ;~rn '::::, J> :J::;J -< =~ c:- Cl - ,. ~'iEja I , \ Q () '-j'; .,.._} '.-1 I; .d I~ . It . , "-1:t!IO~ \... . '. Commonwealth of Pennsylvania County of Cumberland Kristi E. Higgins and Floyd C. Higgins, individually and as parents and natural guardians of Ashle,' Higgins, a minor and Kevin Higgins, a minor Court of Common Pleas VI. R. S. Mowery & Sons, Inc. 625 Hamilton St. Carlisle PA 17013 Leon E. Wintermyer, Inc. 220 Yocumtown Road Etters PA 17319 No. ___~tQ:-2~_~CU;;J.-y;t:L"'~~_____m 19____ Civil Action - Law In _____________________________________________ R. S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc.: To _____________________________________________ You are hereby notified that Kristi E. Higgins and, Floyd C. Higgins, individually and as ts and natural ~.......~~~ of l\~h1~. Hi' a minor and Kevin Hi " , _________~_________________~~~~____,~~J____~J_________________________"~ a minor S""l t" L urnmons - C1V1 Ac 10n - aw the Plaintiff S haTe commencod an action in ________,________________________________h______________ against you which you are required to defend or a default judgment may be entered against you. ".' " (SEAL) Ilate _______C?~_tg!!~~_~_~J________2~!t_ Curtis R. Long .------------------------------------------------ Prothonotary ',~ci~-~ -'~ic;:ic '1...,";...'; J--i>. ~ IS j ~ , , U..I.~.~~!~~,li!;i~'ikp.;i1M""k'!"",",i,('''''A""JU_;."i!,j-,"~,![.',,~~:m!ll1iil!1-1~i.!llillilli:il~~~~~'-r " ~~'Ow~~ ~e;ii~ t~ ~ rt I e ~CIlr:' ~; "Ii ~ ~I Cl'I .0 co . in II-" :<: ,I-" 'f-" - ~~ . ;.. (l rt 1-" o ::l t":<l CD o ::> en t:>j . 3: o :;:.e I-'-CD ::> I-! (t'<: _ I-! ", ~en CD 0 I-! ::l . m I t" ill .e -. = H ::l H (l ::l (l ill 0'0 n:>> ::J Hl OJ. 11 0. I-! 1-" ;.. CD :r: m :>> m ::l 1-" rt CD ::r rt co 1-'- <: f-" m co 1-"CD I-'-t:>j ::l'<: ill::l ::l m ::r: o....::r: I-'.:r: "" co I-'.::l I-'-CO COCOill::lCO I-"CO rt 0. 1-'- ::l I-'-C I-"::l m ::l I-! <: m ... CIl OJ 1-0'- ... I-' 0. OJ ill C ::l ill co ill 0. 3 C f-" 1-" 3 ill f-" ":I ::l 1-"I-! '<: f-" o ::l 0. 0 fi 0 I-'-ill '<: fi ill ::l 0. ::l 0. m ill m '""~'O<-lrli!illj:r~ j e::::) -0 ~ ::~~~ ~~ -2~ ~,., ~ j I, ~ ~ ~ o o I -..J tJ1 Cl'I o n 1-" <: 1-" f-" >'3 CD fi 3 - :0 I I I ,'-.j, _-:;: 1 ~~ '~.~ '--'II~ -<.... .... Ii "_. ~ .I~= ,,~ .~ Ii _ _ [ .="..l~ ~ "'~.~" ,~.~ . , ~ "- ~'L~'~ , SHERIFF'S RETURN - OUT OF COUNTY , CASE NO: 2000-07560 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HIGGINS KRISTI E ET AL VS MOWERY R S & SONS I C R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: WINTERMYER LEON E INC but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within WRIT OF SUMMONS On November 14th, 2000 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep. York Co 6.00 9.00 10.00 30.40 .00 55.40 11/14/2000 GOLDBERG, KATZMAN ~~?-~ R. Thomas Kline Sheriff of Cumberland County & SHIPMAN Sworn and subscribed to before me h. -k- t J.S 30 <- day of~. ~ A.D. JM-O )y,,(lP,,-, ~ Prothonota y ~~~ - >>".~~~ lil_~ SHERIFF'S RETURN - REGULAR CASE NO: 2000-07560 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HIGGINS KRISTI E ET AL VS MOWERY R S & SONS I C DOUGLAS DONSEN JI .1 ,[ o. _ '~~ '~.ll!l$i~;oH'll<i -.... , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon the MOWERY R S & SONS INC DEFENDANT , at 0010:20 HOURS, on the 31st day of October ,2000 at 625 HAMILTON STREET CARLISLE, PA 17013 SHERRY SCNETT (RECEPTIONIST) by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.10 .00 10.00 .00 31.10 Sworn and Subscribed to before me this ~b ~ day of ~~ d--ov-rJ A. D. ~t2~ ~ Prothonotary . So Answers: f!""~~'~~f R. Thomas Kline 11/14/2000 GOLDBERG, KATZMAN & SHIPMAN By: Q~t 0- eputy Sheriff COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SERVICE CALL (717) 771-9601 1. PLAINTIFF/Sf Kristi F. 3. DEFENDANT/SI R.S. MOW8cy & Sons, Inc. e~. al. Writ of Summons SERVE { 5. NAME OF INDIVIDUAL COMPANY, CORPORATION, ETC. TO SERVE OR DE$CRIPTrON OF PROPERlY TO BE LEVIED, ATTACHED, OR SOLO. ........ T:,eon E. TN1.n'termyer, Inc ..".. 6. ADDRESS (STREET OR RFO WITI:I BOX NUMBER, AE'T, NO., CITY, BORO, TWP., STATE AND ZIP CODE AT ??O ~ocumtown Rd, Etters, PA 17319 7. INDICATE SERVICE: Q ~ERSONAL Q PERSON IN CHARGE M'DEPuTIZEClIm~8T_lQ NOW 1 0/30/00 , 20 J, SHEBIFf OEXI8IRICCOU York COUNTY to exec - to law. This deputation being made at the request and risk of the plaintiff. Higgins, ef:. a1. INSTRUCTIONS PLEASE TYPE ONLY LINE 1 TO 12 DO NOT DETACH ANY COPIES 2.,.?OURT NUMBER ...,.." Vln _7~"1'\ ("', .i 1 fe.l'fYl 4. lYPE OF WRit OR COMPLAINT SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: UNTY Cumberland OUT OF -COUNTY. CUMBERLAND ADVANCE FEE PAID BY ATl'Y NOTE ONLY APPUCABLE ON WRIT OF EXECUTION: N.S. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or'attaching any property under-within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or r8mQval of any property before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEY LQEI.GLN8TOR and SIGNATURE GOLDBERG, KATZMAN & SHIPMAN 320 e. MARKET ST., PO BOX 1268, HARRISBURG, PA 17108-1268 12. SEND NOTICE OF SERVICE COPY NAME AND ADDRESS BeLOW: (This area must be completed if notice is to be mailed). 10. TELEPHONE NUMBER 11. DATE FILED (717) 234-4161 10/26/00 CUMBERLAND COUNTY SHERIFF -~. . SPACE BELOW FOR-OSE OF tHE SHERIFF. DO NOT WRITEBELOW'!'HIS LINE 13. I acknowledge receipt 01 the writ 14. DATE RECEIVED 15. Expiralion!Hearing Date o,complalntaslnd;catedabove, J. LUDWIG 10/31/00 11/25/00- POSTED ( POE SHERIFF'S OFF ( ) OTHER ( SEE REMARKS ~ 41. AFFIRMED and subscribed to befme me this 6TH 44. Signature of Dep. Sheriff 45. Signature of Yo ounty Sheriff._ 47. rr lee 48. DATE ~3. Advance Costs ',- F 75.00 1 ''54. Foreign County Costs 4.~~ER '. 1~"~Ii:!I,cl, ';;'>~iQI James\L V~r'<>'~~n;'Notl;:;;Y Public WILLIAM M. HOSE York, York County, PA 46. Signature of Foreign My Commission Expiros Jan. 22, 2001 County Sheriff 5. CKNOWLEDGE RECEIPT OF THE~SHERIFF'S RETURN SIGNATURE OF AUTHOHIZED ISSUING ~UTHORIT.Y AND l1TlJ: -- 11/6/00 49. DATE 51. DATE RECEIVED 1. WHITE - Issuing Authority 2. PINK ~ Attorney 3; CANARY - Sberiffs Office 4. aL.UE.. Sheriff's Office _ _ -"-~__.~~~m~"-~'ll"lJ!;:,,,,,M}!&ilil.';;j'_ "RECEWEO" OFFICE OF SHERIFF Y0RK.PA '0008T31 PrI 12 38 , I #1: ~ ~"" .Jr. ,. .~.- ~ COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST, YORK, PA 17401 SERVICE CALL (717) 771.9601 '.-'C. INSTRUCTIONS PLEASE TYPE ONLY LINE 1 TO 12 DO NOT DE,,{ACH ANY COPIES _ _~~ . ~:_.",..__.u_.."".__..., _".."'___~., 2. COURT NUMBER t.i: SHERIFF SE8VI9E ~OCESS: RECEIPT, and AFFIDAVIT OF RETURN ~ ' '. 1. PLA1NTIFFl,$1 ,fri s +-- ~ 3, DEFENDA!j!jS/ p~~.. E. H;ggins, et.. ;:,1. " ,.... ,,' 4. TYPE OF WRIT OR COMPLAINT StVE_~{ lIJ!0W~"t"y .& SOr'S, Inc.. Pot Rl.. _!~..;- ...- 5. NAME OF INDIVIDUAL COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD, 6. ADDRESS (STREET OR RFO WliH-BOXMJMBf:R. APT. NO., CITY, BORD, TWP., STATE AND ZIP CODe: ~-~ ~c~um~Gwn Rd, Ettecs~ PA 17319 7.INDICATE~RVI6E: r:l~ERSONAL' r:lPERSON IN CHARGE '.NDEPWTIZ-=Uir.LO#5JJ4~1b . r:llSTClASSMAIL r:lPOSTED r:lOTHER NOW , . ., 20 _. J. S.H~RI~F 9F.',,-ORKC\)Ut-lTY, PJI., do ,hereby deputize the sheriff of ,.., ~',\'Oi'k,~'_A~' ',_ ,',k._~!._1..:~~:".a:-COl!NJY to.eJteqtJte thisvifit and make return thereof according to law, ThiS deputation being made at llLer\lquest and risk of the plaintiff. ~"; .. .. . - -...., . ,~.:..c-,~,. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: ~ ,~. 0' ~1.'7Y:~/,~:-.1 T."v. S},EfllFF QF 'iJ1RK c:QUNTY "v CUmor-y' ~ d'. ':~"~ r. ... . .. bOT qF"::i::OGm", CQMBE~"''D 'i~ a .} _:.0;. ~ FEE PAID BY A'JTl . -f&- ~-., '_NOtE.ONLY ~~PLlCABLE ON WRIT OF ExECUTION: N.B. WAIVER OF W~TCHMAN . Any deputy sheriff levying up.on .or ~ttachjng any property under within writ may leave same -withOut a watc]:1'l11an, in custody of wh.omever is f.ound in p.ossessi.on. after. notifying pers.on of levy.or attachment, without liability on the part of such deputy or the sheriff to any plaintiff . - herein for any ]9ss, destruction, or removal of any property befqr~ sheriff's sale thereof. S._ TYPE NAME-AND ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE " GOI:.4'reRG, KATZI-lAN & SHIPMAN ' " ,.", . . 1?O'f. MARKEr ST., ro BOX 126$, HA!~RISBu:RG, PAl7108-1268 . (717) 23(-.( . \1,q. SEND NOW.OF SERVICE' COpy NAME AND ADDRESS BELO~:. rh1S a.rea m~s(!Je compJe.!ep if n~~ce IS to_be malleq~. ., iii.;-- -' . .., . ..' " ~ _ i. ClJ~D COUNTY SHERIFF ,.' ~....~ JIi ~-PA:CJ;'~J,,"Wq!,Q.BJ,.ISI!.1lE..IH!UUiEJl!FF.: PQNOT W.B.!.TIU;~ LOWJlilSLlifl!.... ..,.... _. 13. J'acknowle9:9.e receipt ofthe writ 14. DATE RECEIVED .or complaini1,s indicated above. J LUDWr..... ',,-0/ 3.ii 00 """ . '''' 1$, HOW SER~: PERSONAL ( , ) RESIDENCE ( JPdSTE9 C L PO" !Xl, SHERIFF'S OFF ( OTHER ( 11. 0 I he~e~;{'@:rtify and re;~m ~ NOT FOU~.lI:r because I am una!2te t_o locate'thE1 i.ri~J~(g:l;Ia( company, etc. named above. (See remarks .t)el_~.) 18. NA,ME' ANQ{JTL~ O~DrV.~DU.bJ.:., S. E~V..;;p /. IS~ ADDRESS HERE IF NO. T SHOWN A60VE (Rel.ationship to Defendant) .:' 19. D~te ~f Service '.. :l:tflliJh! -Ju'/ftJiJ l/;,;;iZ:U, Q)yjr-q"L S'^~"r- GI(Jc< iD 11/;' , 2t.-AmMPTS Date Time Miles lnt. Date Time Miles Int Date Time Miles Int.' Date Time Miles Int. Time Miles fJ/. .7:;;: 10. TELEPHONE NUMBER 11. DATE FILED 15. Expiration/Hearing Date SEE REMARKS Int. -------.- "'. .;,.).'~ ; "'"'=~ ';1;;<.' *,. ,. .t)lL ~ v: w-~ . -- '-' :Jii.' . , : -. i;.~ /'.1' 1.1,'.''':'' '- ~:. ...~", "-.:,~' , . 41: AFFIRMED_iQd subscribed to before me this t:::'TH , . *~, . 42. day of . ..a-E':=:,:,:;'.:'q ,20 ':'':43: . _. ...._ _m. , #i --" ';.eaOTHOJ NO'ARY 44. Signature of Dep. Sheriff 45. Signature of York' County Sheriff . t!;''',.J A~'.-. f.j, In.::,;-.: >~ . 46. Signature of Foreign ~;,;;:; .. Coun Sheriff 50. I ACKNOWL,SQ,QE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE ."oFAUn;ORjkEO ISSUING AlnHORITY AND TITLE- ,', . ,-~. 1. WHITE~ Issu.ing Authority 2. PINK-Attorney 3. CANARY - Sheriff's Office 4. BLUE - Shr;lritt:'s.9ffice . ~ . ~ ---:--...... , , ..,,:~ .,.' ~~~. Advance C~~~ .~ . ~ .15.& ; ~~4~ "F~rei9n c~~~~ Costs . ~,... 40. Cost Due or Refund 47. DATE 48, DATE ....- ~ ," .;... <... 49. DATE ~ -, 51. DATE RECEIVED ~ .' ~, , , -I~ .. ~L, 0" , rJUl312001tP IN THE COURT OF COMMON PLEAS CUMBERLAND COUNlY, PENNSYLVANIA KRISTI E. HIGGINS AND FLOYD C. HIGGINS, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF ASHLEY HIGGINS, A MINOR AND KEVIN HIGGINS, A MINOR, PLAINTIFFS v. R.S. MOWERY & SONS, INC. AND LEON E. WINTERMYER, INC., DEFENDANTS CIVIL ACTION NO. 00-7560 CIVIL ORDER AND NOW, this -z.,~d day of August, 2001, upon consideration of the Petition for Approval of Minor Settlement pursuant to Pennsylvania Rule of Civil Procedure No. 2039 and also upon consideration of the Affidavit of Natural Mother and Guardian Kristi E. Higgins, said Petition is hereby GRANTED. Further, the distribution for minors, Ashley Higgins and Kevin Higgins shall be placed in restrictive accounts in conformity with Pennsylvania Rule of Civil Procedure No. 2039 and Paragraph #14 of the Stipulation. y 0~fC* ~ 'b,t, By the Court, J/CA " ......... "~ M..i\'~ ~J~~Mb-i1oll';',,''Ii,..oi!i~~~~gl,Ilk~OffiHtjJ;i!ti''~1...t~,,-'.1li<!>!iil:hi~~<iillIIiil_lailliW~ VINVAlASNN3d MNnCO CNlnH38\"InO S8:1) ~{~ 9- :.JnV 10 1IJ\.l 0"0'" ,", ' NJvl I''/: '\"U'\y'(:,c:J -'''II.iO,JI:J1U :JV .J~. \-. _I I;:] :10 . ~." ~'iWOillii\i.:UiiP' 't~" ... \ 1"[ i,i II H ,,, 1'1 I H Ii' Ii! I:' ~ ;1 i!: il II iil .~ "I J-i ~ ",. ~" Jltlh . ll-.j ~.~,.:. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA RFC't=/Vt=D JUt 1 1 2001 Kristi E. Higgins and Floydd Higgins, individually and as parentfand natural guardians of Ashley Higgins, a minor and Kevin Higgins, a minor, Plaintiffs CIVIL ACTION NO. 00-7560 Civil v. R.S. Mowery & Sons, Inc., and Leon E. Wintermyer, Inc. Defendants PETITION FOR APPROVAL OF MINOR SETTLEMENT PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE NO. 2039 1, Petitioner is Kristi E. Higgins, natural mother and guardian of Ashley Higgins, a minor, and Kevin Higgins, a minor. Ms. Higgins resides at 2513 Tremont Drive, Eustis, Florida, 32726. 2, The minor children, Ashley Higgins and Kevin Higgins, reside along with the natural mother and guardian, Kristi E. Higgins at 2513 Tremont Drive, Eustis, Florida, 32726. 3. Ashley Higgin~l!Pd Kevin Higgins, the minors, were injured jn a motor vehicle accident on October~ 1998, which took place in Silver Spring Township, Cumberland County, Pennsylvania, on SR 114 in a construction zone. At that time, the minors resided along with their natural parents and guardians, Floyd C. Higgins, and Kristi E. Higgins, at 7 Southmont Drive, Enola, Cumberland County, Pennsylvania, 17025. 4. Since the time of the accident, Kristi E. Higgins and the two minors, Ashley Higgins and Kevin Higgins, have relocated to the State of Florida at the above-referenced address. 5. A Praecipe for Writ of Summons was filed on October 26, 2000 in the Court of Common Pleas of Cumberland County, Pennsylvania at the above-captioned civil action number. 6. The minor, Ashley Higgins, suffered injuries including a broken leg, leg abrasions and a lumbosacral strain/sprain. Ashley Higgins treated at the Holy Spirit - Ii L J , I( j" '\... Hospital Emergency Room and with Orthopedic Institute of Pennsylvania, Dr. Kevin Jackson, a chiropractor, and Warner Chiropractic. 7. Ashley Higgins has agreed to resolve her injuries, by way of her natural mother/guardian Kristi Higgins for the total sum of$3,500. 8. The minor, Kevin Higgins, also suffered minor injuries in the October~, 1998 automobile accident. He was seen in the Emergency Room at Harrisburg Hospital and was discharged without any apparent diagnosis. The diagnosis discharge impression was status post-motor vehicle accident/physical examination within normal limits. The minor, Kevin Higgins, treated for a short period of time with Dr. Kevin Jackson who diagnosed IUlnp3t tenderness, 'and with ~Varner Chiropractic. 9. The minor, Kevin Higgins, through natural mother/guardian Kristi E. Higgins, has agreed to resolve the claims of Kevin Higgins for $2,500. 10. Neither minor Kevin Higgins or Ashley Higgins are treating medically for any injuries suffered in the October ~A 1998 automobile accident, and they have not treated for a considerable period oftim~ 11. The minors and their parents are represented by Attorney Thomas Brenner of Goldberg, Katzman & Shipman, P.C., 320 E. Market Street, P.O. Box 1268, Harrisburg, Pennsylvania 17108-1268. Floyd and Kristi Higgins signed a Contingent Fee Agreement with counsel to represent the interests of their children, and to pay 30% of any settlement amount as counsel fees. 12. Leon Wintermyer, Inc., is represented by Attorney Scott Fleischauer of 500 N. 12th Street, Lemoyne, Pennsylvania, 17043. 13. Petitioner desires that the court consider the above-referenced compromises for approval pursuant to Pennsylvania Rule of Civil Procedure No. 2039. 14. Petitioners would request the following distribution: Ashley Higgins settlement of $3.500 $1,050.00 to Goldberg, Katzman & Shipman, P.C., as attorneys' fees; $70.56 to Goldberg, Katzman & Shipman, P.C., for reimbursement of costs advanced; Amount to be placed in restricted account for AsWey Higgins $2,379.44 Kevin Higgins settlement of $2.500 $750.00 to Goldberg, Katzman & Shipman, P.C., as attorneys' fees; $64.33 to Goldberg, Katzman & Shipman, P.C., for reimbursement of costs advanced; "' .d(" ' . w~ ~< ~ ~~ ," , I ...J....~ ~ J <\ . Amount to be placed in restricted account for Kevin Higgins $1,685.67 Respectfully submitted, Date~LP \~\ By Kristi E. Oggins, Petition r 9021 N. Kendall Drive Miami, FL 33176 ,"""u Ilitlk - ~'~'" .. _.~ I. "; ~..J ~~ J , ',1 .- '. AFFIDAVIT I, Kristi E. Higgins, natural mother and guardian of both Ashley Higgins and Kevin Higgins, minor children, being duly sworn, do depose and say that the facts set forth in the foregoing Petition are true and correct. ~~~ ' ~ , ~ - ny '. ,Kristi E. Higgins Sworn to and subscribed~ me this ~ day of 1::c:::::J 2001 ......,\\\y~",.I, Mark J. Goudreau ,~....~~ CC 20 ;>;?rll.'~1(JommiMion N . 9224 ;""Al!f$ Expire. Apnl 2, 2004 -:;'~q:""",~",~ Banded Th.ru ",,~,'ff\\\' Atlantic Bonding Co., Inc. By Notary Pu State ofFI rida .', ~-',- ~- .. 'OC '''"~< ";W!!;:Jo.,,"",-<fMi-li:o;.$~illiiIIi~i!W!l~~tf1i'Mf~k"i!ll~;f';\,j'c"""'" - ~~~W '~~""""'~W~~l\L~ll.Jn: *I!~,~ . ; ~ ~ . ,'.;;",' ,,, "' ~ ,~~. ~o iiiIiIliiilUltli l[ J" ,~~ - I , II '. I, II ~ I ~ ="" """'._-- ,'","" J, "."J _ _,o,'Ii.~.'i,:,'I~..;-O",' c.,'{_,;:;..".-;.,_": ',' ..:. _-<~.;':,~"~,.:- ",.,,/~__", '~; ^" Thomas E. Brenner, Esq. Attorney 1. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for plaintiffs KRIST! E. IllGGINS and FLOYD C. IllGGINS, Individually and as Parents and Natural Guardians of ASHLEY IllGGINS, a minor and KEVIN IllGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION -LAW v. NO. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED NOTICE YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaintorfor any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYERAT ONCE. IF YOU DO NOT HAVB A LAWYER OR CANNOT AFFORD ONE, GOTOOR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 /i!!J. ~ ""'.- ., " ,., ..~-..,- ~."-~",,, -,".,' +-",' 1;,'- ,. i ,,~-- _ '- '""f. ,'--0;._,1,_: _'~ ,; .,. "i'..< , _ ~ ,'., - - - .... , ;.,,,. ,- - - - 'co',,", ~''''' ,_. ,~""'. :;-', NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo at partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cua1quier quja 0 puede perdet dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUF1CIENTE DE PAGAR TAL SER VICIO, V AYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR AS1STENCIA LEGAL. Cumberland Cmmty Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 " ., '0 "C.".' -'.'l'"";' "I'" :':~I ,,' ,,-;' Id""".,,-,^ 'c,:",""":" ~ , -D,:.- .;,-__,~, .>,>::::;.>:,';',;h;-~-;~(i,;;~;;~~<i-J.,~. <_' ';, '. "'",:.~-;;',~ Thomas E. Brenner, Esq. Attorney 1. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneysfor Plaintiffs KRISTI E. IllGGINS lUld FLOYD C. IllGGINS, Individually and as Parents and Natural GuardilUls of ASHLEY IllGGINS, a minor and KEVIN IllGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA CIVIL ACTION - LAW v. NO. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., DefendlUlts JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, by their attorneys, Goldberg, Katzman & Shipman, P.C. who state: 1. Plaintiffs, Kristi and Floyd Higgins, are adult individuals residing at 2513 Tremont Drive Eustis, Florida 32726. 2. Defendant, R.S. Mowery & Sons, Inc., is a business entity which engages inroad construction work within the Conunonwealth of pennsylvania including this county with offices located at 625 Hamilton Street, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Leon E. Wintermyer, Inc., is a business entity which engages in road construction work within the Conunonwealth of Pennsylvania including this county with offices located at 220 Y ocumtown Road, Etters, 17319, York County, Pennsylvania. 4. This matter involves a motor vehicle accident that occurred on October 29, 1998 on Route 114, Silver Spring Township, Cumberlaml County, Pennsylvania in a construction area. \1 ~'" ' ~--;.~, ,.., , ,0- __ ~ . ,I,d::',",",."!,..,,,. -, ~ 1"";"";'JI7:O;;i'-"'-~'-'; .-b;.',j'c__,:' '.~ ;;_-f ,/, " .- "",, :~- ,~,:'- ': -Jh',l' "~~"""', <,~.,;. ..;- ':";:[:i~i 5. Plaintiffs, Floyd C. and Kristi E. Higgins were the owners of a 1998 Ford Expedition vehicle. 6. PlaintiffKristi Higgins was operating the vehicle and traveling in a southerly direction on Route 114 when she encountered a road construction project involving work in the median area between the northbound and southbound lanes being conducted and maintained by the Defendants. 7. As Kristi Higgins traveled through the construction project at approximately 9: 15 p.m. she operated her vehicle along the left hand side of the only open travel lane. The berm area to the left of the travel lane contained a drop-off and was not marked or barricaded to prevent vehicles being operated in a southerly direction from entering into this drop-off area. 8. Ms. Higgins' vehicle traveled off the road surface into the berm area which was significantly lower than the road surface. As she attempted to extricate her vehicle from the berm she was unable to control the vehicle and the vehicle rolled over resulting in personal injuries to Kristi Higgins. 9. The aforesaid accident was solely as the result of the negligence of Defendants Mowery and Wintermyer in that they: a. excavated the berm area and failed to barricade that area from traffic traveling through the area; b. created a lane closure in the western lane for southbound Route 114 that caused vehicles to travel near the berm area; c. failed to alert drivers of the excavation and drop-off area of the berm and the potential hazards for vehicles encountering that area; 2 ,." ",. 1-;,. ,v""',jL",,,k,'"'' ,,' '",. . ..,'h. <. "".~.."'" "<' , 'c_' ~, d. failed to provide adequate lighting for the construction site so that vehicle operators such as Ms. Higgins could observe the dangerous condition created by the excavated berm, and e. violated the laws of the Commonwealth regarding an ongoing road project. 10. Solely as the result of the negligence of the Defendants, Kristi Higgins sustained the personal injuries set forth. COUNT I KRIST! E. ffiGGINS v. R.S. MOWERY & SONS. INC. and LEON E. WINTERMYER. INC. 11. The averments of paragraph 1 through 10 are incorporated herein by reference. 12. As a result ofthe accident, Kristi Higgins sustained personal injuries including: a. Cervical spine strain and sprain; b. Acute cervicalalgia; c. Acute headaches; d. Thoracic spine strain and sprain; e. Acute lumbar disc displacement; f. Acute lumbalgia; g. Acute sciatica, and h. Bruises, contusion, aches and pains throughout her body 13. Solely as a result of the negligence of the Defendants, PlaintiffKristi Higgins has undergone medical treatment and continues to seek medical care for the injuries she has sustained. 3 '<< , ~- L ",':..1:" ~ , I_;".~,)';-;:,-o - c'-.:;":...,_""",;(. '"" <:" '::_:.: ."._ ~;;. :_;i--'~:':;: '.'" <' - '--, ", :-~- ~...-,.,",.-,! 14. PlaintiffKristi Higgins continues to suffer from the effects of this accident as: a. She continues to have back pain, b. She is bothered by pain in her day to day activities, c. She has chronic posttraumatic Pelvic, Lumbar, and Thoracic, and cervical spine subloxation complexes, d. Chronic post traumatic paraspinal and pelvic girdle fascail pain and, e. She has incurred a 10% permanent impairment of the whole body. 15. Solely as a result of the negligence of the Defendants, Kristi Higgins has been required to incur tiIe cost of medical treatment and medications and she will continue to incur these costs. 16. Solely as a result of the negligence of the Defendants, PlaintiffKristi Higgins has undergone, continues to incur, and will in the future undergo, great physical and mental pain and suffering, great inconvenience in carrying out her daily activities, loss oflife's pleasures and enjoyntent and a claim is made for these damages. 17. Solely as a result of the negligence of the Defendants, Plaintiff Kristi Higgins has been subjected to great humiliation and embarrassment and a claim is made for these damages. 18. Solely as a result of the negligence of the Defendants, PlaintiffKristi Higgins has sustained and in the future will sustain work loss and an impairment of earning capacity and a claim is made for these damages. WHEREFORE, Plaintiff, Kristi Higgins, demands judgment against the Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., jointly and severally, in an amount in excess of $25,000, together with delay damages and costs of suit. 4 ,,~ ~, '"""~",, 0 ,~,_,_ '" ,,'_ ; .' I I',', "~,.';;k:'~=:"','~"'I",,'-; .~"". ',.,", ",.'-' ~:;:~-'_'" .;,:, , ;;Xi>''''~,'~:' t~,,;;~-~;;":' -,,)~~:~>-<:::,_ '_ '0.:," 'f< "'", COUNT II FLOYD C. IDGGINS v. R.S. MOWERY & SONS. INC. and LEON E. WINTERMYER. INC. 19. The averments of paragraph 1 through 18 are incorporated herein by reference. 20. Plaintiff Floyd C. Higgins is the husband ofPlaintiffKristi Higgins. 21. As a direct result of the negligence of the Defendants, Plaintiff Floyd Higgins was deprived, and may in the future, be deprived ofthe care, companionship, consortium and society of his wife, all of which are and will be to his great detriment and a claim is made for these damages. WHEREFORE, Plaintiff, Floyd Higgins, demands judgment against the Defendants R.S. Moweiy & Sons, Inc. and Leon E. Wintermyer, Inc., jointly and severally, in an amount in excess of $25,000, together with delay damages and costs of suit. Respectfully Submitted: GOLDBERG, KATZMAN & SHIPMAN, P.C. ~~ Thomas E. Brenner, Esquire Attorney J.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs DATE: g-{r1;O' 54404.1 5 --"~ __,j"'~" ,~ O',',,~ I'~'~" : ,- j "<' ,,;,:"'-;,;,-1> ,,;,k;;;; '-,1-':',;,' " '-0" ;,'~ . '..'", " ' ,. ,,'-. ;,', ';"';~'.j.;:::< --,'- - '1V VERIFICATION I, Kristi E. Higgins, hereby acknowledge that I am a Plaintiffin this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties ofl8 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ~-~ ~~ Date: / . ' -,"',~ - " "" '- -~'"", .~ '",,"-~ ,'. +-- :,'",,'" - -1;"';';";:;'0::1-- -_L --;' ,"J , ~,- ,,; c_ ~ ___,' '.C '~i,:':,~,':,2i:~D~::',';" '~, t.._'c -. VERIFICATION I, Floyd C. Higgins, hereby acknowledge that I am a Plaintitfin this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that anyfalse sratements herein are made subject to penalties ofl8 Pa. C.S. Section 4904, relating to 1UISworn falsification to authorities. ~~~ Date: ~'; ,-' - ~ '~,,' J,' " ;~,:b,;',,'"i' .''''',' - "cO 't'-- ,t4, . . CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the Unites States Mail, at Harrisburg, Pennsylvania, via Certified Delivery, postage prepaid as follows: Steve Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor, P.O. Box 999 Harrisburg, Pa 17108 Datef(JJ!o( GOLDBE, ZMAN & SIllPMAN, P.C. !L-~ By: enner, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, Pa 17108-1268 (1717)234-4161 Attorney I.D. #32085 Attorneys for 0,. '2''C;, , ,-,,',' ,',; -~"""' ,'fu,j/jj," 11,.111 .'-,i.,is,:;,-:: ;;';1I:~'h:'::~:" . " ,""L.,."_ "~-'-'':M:'t::-,.':,~,,:-'~:;:: .--", , ~", "" ",j,0j"""~"j", III... I I ,/.:-;' 0 ,,"--' ,~' " o <:;: -C :~;:: fT'!..' _,I! I L 2~ ~)~ f} ~" ~~ f'~' ~," ,w".j'..~ ,> "'_1 c;-} r"',,) I , :;,,:;.J' :-, ~ i:-" '^ I"' -'" ,.'" " "f'- '>0 >,'."-I""<=-'~:;''''~~,_, ,-'-<,,--'' -':-""c':'--.'- . ",'H_T "~"l!Pi, , Stephen ,E. Geduldig, Esquire Attorney I.D, No. 43530 THOMAS, THOMAS & HAFER, LLP 305 NortH Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seq@tthlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. WtNTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTEMYER, INC., Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Defendants, R.S. Mowery & sons, Inc. and Leon E. Wintemyer, Inc., in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiffs' Complaint. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP 8'(~ Ie> I :140829.1 By: - ~ --7 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY & SONS, INC. and LEON E. WINTEMYER, INC. .'- ,--,~" " ,- _ I. '-' ~',,,..,,,,,-,- ,-",;."" ":.,,,,,--, ,-"';."",",tt:-'MC-'<i",,,-.';,-,.C" -', ~: '-, ili...' -"'~:, , -, 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 Mail, postage ~ prepaid, at Harrisburg, Pennsylvania, on the day of August, 2001, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for P1aintiffs THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, :140855.1 ~ -"- ;--. 'L ,,:0-" 'e '><'~'_i.L'.'"-<'io"" " .~ l' ''', - " " ,~" "' ">j'c,~i";" -,,^, ,,', " ,;':i.O~"" ,_,"e- (:-) ~:' -Df~' n-l[';'" Z~:; L' i.,_ GS! ,~'_-' ;::::. '-' -~ 2c:- LC\ 5>c Z ~ >, ,- t', :r;:r.. ~:3 ~, 'J. 1'.., '-'-' ~'-o ~....) \0 ~~:) ~.;:..~ .:.::-;... ~ -< ~'~<"'-'I>"""~ I ~L~,__", ",,'~-:,,"'i';_"' .,'0" :";,,,,~,__/ "':,; '".-",<;'~,_- , ~,,"- :..:i;'-'> .~, .... Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs KRIST! E. IllGGINS and FLOYD C. IllGGINS, Individually and as Parents and Natural Guardians of ASHLEY IllGGINS, a minor and KEVIN IllGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW v. NO. 00-7560 CIVIL RS. MOWERY & SONS, INC., and LEON E. WlNTERMYER, INC., Defendants JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE The Complaint in this matter was served on counsel for the Defendants on August 30, 200 I as reflected upon the certified mail receipt card attached hereto. Respectfully Submitted: Date: Cj- 7-0l By GO~ SHIPMAN,P.c. Thomas E. Brenner, Esquire Attorney ID. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs ..." .... <,' - - . Com.e1ete iteQ:J~ 1, 2, and 3. Also complete I ,iterir~'if Restricted Delivery is desired. 11 . Print your na : d address on the reverse , 50 that n rn the card to you. 1 . A is car the back of the mail piece, 1 on the if space permits. , 1. Artic Addressed to: lis/CPhen 6eduld/Cj / lG9.(J/~ 3()S.!1J. t:rr;n.f SfrRer \ /? CJ. /3C.lC qqq il-larr;)bu!J, fill , /7/tJ'b 3. ~icEl Type ~ifiedMail o Registered o .Ins\:IreQ_ Mail o Express Mail o Retum ReceIpt for Merchandise o C.O.O. t. r" , 4. Restrlcted Delivery? JEXtra Fee) : 2. Article Number (fransfer from service label) : PS Form 3811, March 2001 7()OO /530 OOfJ S O/3h Domestic Return Receipt , o Agent 0, Addressee DYes DNa D,!~ 02ZJ.g: ~, , ~ 102595-01-M-1424 ; --.;-..- , I ' ~ ""'.I,,'~" ",*-,--,,',,,,,,._;,,~~,~,. _. "0,__','. -,.;" on "''''''"~l " .. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the Unites States Mail, at Harrisburg, Pennsylvania, via Certified Delivery, postage prepaid as follows: Steve Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor, P.O. Box 999 Harrisburg, Pa 17108 Date: ~~ 7 --tJ I By: Tho . renner, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, Pa 17108-1268 (1717)234-4161 Attorney I.D. #32085 Attorneys for Plaintiffs --A ~":'>"IT ,~ &~~''''''-~.hlill'""",,'' ,,- y-r ___t,- 'iC".-"""""",,, ~<c;;,-~ "- ,~, .. 0 Cl (::::~ c: -';'1 ~ tn ,I -00:3 t'1 -:-:~; mrr -0 ~7"",,!"1 2:,'- C? ';y' (f):;~' -<,:,.,::- '-:..' , ~C/ ~~T - " ~, ~() -, ,'--' .,,,) r:- ;~;;n; 5>i:.': c~ z :::> ~ -' -< ';0 -< " - . "',~'--" "~ . .,,-. "".",-".,.-->.,'iiiiIiiIii:~~~ . . Stephen E. Geduldig, Esquire Attomey 1.0. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seQ@tlhlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. W1NTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: P1aintiffs and their counse1: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Cftv1101 By: :142701.2 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. ,<> 1".'-'- ".~ -~ ,'.!!:ET'~'--~"~I" ,", ~ . -- --'" . "~ ',,~,' - -;;,,';,.'- "iJ:. Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: sea@tthlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. W1NTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS, R. S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC., TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. (~Defendants"), by and through their undersigned counsel, Stephen E. Geduldig, Esquire, of Thomas, Thomas & Hafer, LLP, and files the following Answer and New Matter to Plaintiffs' Complaint: 1. Denied pursuant to Pa. R.C.P. 1029(e). 2. Admitted in part, denied in part. It is admitted only Defendant, R.S. Mowery & Sons, Inc. is a business entity, which is a building contractor in the Commonwealth of Pennsylvania, 10 .,<'" I",. ",,,__ h;.~,'_' .', --'. ~ '-, '- r-' ,--'i.-"/,.".'_ ,,; ~ 0 , --I"~. including Cumberland County, and that it has offices located at 625 Hamilton Street, Carlisle, Cumberland County, Pennsylvania. To the extent that paragraph 2 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029 (e) . 3. Admitted that Defendant, Leon E. Wintermyer, Inc., is a business entity which, among other things, engages in road construction work in the Commonwealth of Pennsylvania, including Cumberland County, and it has offices located at 220 Yocumtown Road, Etters, York County, Pennsylvania. to the extent that paragraph 3 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 4. Admitted that Plaintiff was involved in a single vehicle accident on October 29, 1998, in Route 114, Silver spring Township, Cumberland County, Pennsylvania, in a marked construction zone. To the extent that paragraph 4 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 5. Denied pursuant to Pa. R.C.P. 1029(e) 6. Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114, and that the accident occurred in a construction zone maintained by the Defendant, Leon E. Wintermyer, Inc. To the extent that paragraph 6 of 2 ,~~, "'--",,-<~,_""'~"<, --C,"" ""'> ,-.-;.. ,.._ c"';<' , l!IlC!! Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 7. Denied pursuant to Pa.R.C.P. 1029(e). 8. Denied pursuant to Pa. R.C.P. 1029(e). 9(a)-(e). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 10. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. wintermyer, Inc., respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. COUNT I KRISTI E. HIGGINS v. R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. 11. No response is required and this is a paragraph of incorporation. 12(a)-(h). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 13. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 14(a)-(e). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 3 - ,~, - ," "" -~, " """~"~',M' _'.... '~__ - " -- .. _.~ -'~ ' t'~~~ 15. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 16. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 17. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 18. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. COUNT II FLOYD C. HIGGINS v. R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. 19. No response is required as this is a paragraph of incorporation. 20. Denied pursuant to Pa. R.C.P. 1029(e). 21. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. 4 "" I~'~~. ""< ~~~.'.'- ~;;;" ",,; """'t" NEW MATTER 22. Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., incorporates herein by reference, as if fully set forth at length, Paragraphs 1 through 21 of its Answer to Plaintiffs' Complaint. 23. Plaintiffs' claims are limited by the provisions of the Motor Vehicle Financial Responsibility Law. 24. Plaintiffs may have failed to mitigate their damages, if any. 25. Defendants at all times hereto were acting reasonably under the circumstances. 26. Plaintiffs' claims may be barred or diminished in accordance with the Comparative Negligence Act, for the reason that Plaintiffs negligently caused the accident. 27. It is specifically denied that any act or omission on the part of Defendants caused or contributed to any of Plaintiffs' alleged injuries or damages. 28. Defendants assert that this action may be barred by the doctrines of res judicata and/or collateral estoppel, which are asserted herein. WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. wintermyer, Inc., respectfully request that Plaintiffs' 5 ~. , --. ~I,d'':''"''. ~, l'- .'''___~I_"<>'_h"'" ".'" '. '0",__'."", '--,,'.' 1_,., .,.-c:".,,/ ~,. ' '-;,,;;;,,' Complaint be dismissed in its entirety and judgment entered in their favor. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP "t! ],.1(. r :142701.1 By: STEPHEN E. GEDULDIG, ESQUIRE Attorney 1.0. No. 43530 Attorneys for Defendants, R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. 6 ~ - ~,~,=,'" _I . ~ ~ ",2-~"Iiifu.~J'i';:'j VERIFICATION I, Donald H. Mowery, President of R. S. Mowery & Sons, Inc., hereby verify that the averments made in the foregoing document 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. 2.;jl!;y,t h. do. JoeY ~'I ~,,~, ^ ".. .". " I "C"~"'~._O "," ',,' ,;.'" ",,,. '''',' ,-~.-"'~ 0 ,~ ,-; . VERIFICATION I, Dianne Fry, ~V'C\\Ah~'1eA""I~! -ClSS/S-r'f\Atf' of Leon E. Wintemyer, hereby verify that the averments made in the foregoing document 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. 0'1 ~nl Oi"n~~~,kO . . " --0", ;oj,. '~I'''"; '__' ,,'" .__, S__.;' 0 ' ", "", < - - _ ',,-, ',_ '-w.:,_ . . 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 Mail, postage prepaid, at Harrisburg, &f7~ day of September, 2001, on all Pennsylvania, on the counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for P1aintiffs THOMAS, THOMAS & HAFER, LLP ~ Stephen E. Geduldig, Esquire . :140855.1 ;;d e ~-1 , , ~"",.;.~.~.wi,..d ~", ,"~,~ "~__"~~"'>4.. "..'" '~ o ~ 'TJtf', n.\I;--i 7: :,:') ~5 ~~o; r::: r~-) --, ~~] .~~ -< . < C) ~/) ;" '~l -D ~'--,) (;:) ",,:--, .t=- ".. "',~. ___~..'r_," 'I~'~" ~'~ '''''''''"'''''--w,~"',o ""~'''''''''''~'''~'"'":'<''''', fl~'_ , .. Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, KlItzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, P A 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffi KRISTI E. IDGGINS and FLOYD C. IDGGINS, Individually and as Parents and Natural Guardians of ASHLEY IDGGINS, a minor and KEVIN IDGGINS, a minor, Plaintjffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW v. NO. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED PRAECIPE The account numbers for the banks in which the children's accounts have been opened are set forth on the attached document. Respectfully Submitted: GOL(J N&SHIP~,P.C. Date: 10 - J- - f) I omas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs , ~ ,I. ...~'"' l'" ill< ~ court, I would ask that you set forth in the lines below the fmancial institution and the account number for the accounts for each of the children and return a copy of this letter to me in the enclosed self addressed envelope. Very truly yours, ,-....---. / i . Thomas E. Brenner TEB/jlk Enclosures 13146v12 Ashlev's Account .-BO( \do. ClIolcc &m \( Financial Institution l-fooooo'2.2Lj-L Account Number Kevin's Account F \ ori do. Dio;ce Eonk Financial Institution lfOD0001'2...1-/0 Account Number ~ "--.'-' ~ ,,~ .,"', - .~ "~'" ~-- "~'i CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the Unites States Mail, at Hamsburg, Pennsylvania, via Certified Delivel)', postage prepaid as follows: Scott A. Fleischauer, Esquire Law Offices of Scott A. Fleischauer 500 North 12th Street, Suite 100 LeIlloyne, P A 17043 Date: /0 .)--O( , GOLDBERG, KATZMAN & SHIPMAN, P.C. ------, /-----/,~',' / ~' By:( '~ ' '-nroma . renner, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, Pa 17108-1268 (1717)234-4161 Attorney J.D. #32085 Attorneys for Plaintiffs ~ ,,- H "~;si' _, ,_ _'': .~- .. ~ ~, e, ~. '~'<lii. -,~,' ~,~.".-"" ~ .. "'-"" '.~'., ,--, ',,,, <^ ~ .C,' .",,, - -i.J6-~ rnn:" ~{' (n, -<":, !~; ..<--"(= L -< ,.,~- . ~ -~,~ (; ~,,, -'~ C'" ,-::> ~-) "~-l ! G) 0,) :.-.') 0" r is-- . .',,_ _ _", _"_, I' ~"" ,'<., _ ,'h,",__ 'c"""'_~"~" <>;'<__'" ""'.__'""j.,;,,,',~,~,,;:_', ~""ii \ Thomas E. Brenner, Esq. Attorney I.. D. No. 32085 Goldberg, KlLtzman & Shipman, P.c. 320 Market Street P. O. Box 1268 Harrisburg, P A 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW v. NO. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED PLAINTIFFS REPLY TO NEW MATTER OF DEFENDANTS 22. OBJECTION. This paragraph violates the Pennsylvania Rilles of Civil Procedure by seeking to incorporate twenty-one other paragraphs into a single paragraph. The standard response is required. The paragraph is DENIED. 23. DENIED. The paragraph states a legal conclusion to which no response is necesslll)'. 24. DENIED. The paragraph states a legal conclusion to which no response is necesslll)'. 25. DENIED. The paragraph states a legal conclusion to which no response is necesslll)'. Ih .~." ',---,' '"' ,"_,>,.-,"" ,--, '"'^__''~v ~,g~_,_~,: >--",' - ','---.~"'\U,.Cf_'_"'_'~", ",_ ;_v' _,,~, '_',~ , 26. DENIED. The paragraph states a legal conclusion to which no response is necessary. 27. DENIED. The paragraph states a legal conclusion to which no response is necessary. 28. DENIED. The paragraph states a legal conclusion to which no response is necessary. WHEREFORE, Plaintiff's request at the New Matter of Defendants he dismissed with prejudice and the Release set forth in the Complaint he granted to the Plaintiffs. Date: lOls/vr GOWBE ~CMAN'P.C renner, Esquire Attorney J.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs " ~"" .~'- -'---,-~'--"~'-,>, ",:,><,-"" --~ "'"-> ~'~~ >',-',-, ,'-'.,'," ,'" ,,,,,',, \(,,- :":11i':i ; VERIFICATION I, THOMAS E. BRENNER, ESQUIRE, hereby acknowledge that I am the Attorney for the Plaintiffs in this action, that I have read the foregoing document, and that the facts stated therein are true and correct to the best of my knowledge, information, and belief based on discussion with the Defendants. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Date: /0/;:/01 cZ~ Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs i~ <' I. ~ ^ I~'~-'","-'~ "'.-""""~.--,",,.,' ^ .~. ',-',.0.." -,',--,;- "1,'_>_' iA.'-~, CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the Unites States Mail, at Harrisburg, Pennsylvania, via Certified Delivery, postage prepaid as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, Pa 17108 Date: (U/5'/o; . GOLDBERG ZMAN & SHIPMAN, P.C. By . renner, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, Pa 171 08-1268 (1717)234-4161 Attorney J.D. #32085 Attorneys for Plaintiffs - ~,~ ,v ", ,-'. , '0 _,,;': _- - -,,', "', ~---" .. ,~< ,~, ^." ~. --<, " ~- .'U ,'-) [:.: ,~ (.'-.1 \:::J _.' ~~: ~ :{-.::.;'--'-, ,J~'-c_: ..<::'. -, .< ", ".~_M~"'_ ~ . ~~ ~! i~1 1,1 ~ I: :1 ~! i] i I ,'-", ::) '~2 ..... '-'! Stephen E. Geduldig, Esquire Attorney J.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seq@tthlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. W1NTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMQN PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ~CTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., LEON E. WINTERMYER, INC., Defendants and JURY TRIAL DEMANDED - _..~~"~--,, ,- . ,,- . CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendants certify that: 1. A Notice of Intent to Serve Subpoenas with copies of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the day on which the subpoenas were sought to be served; 2. A copy of the Notice of Intent, including the proposed -subpoenas, is attached to this Certificate; 3. No objection to the subpoenas has been received; and 4. The subpoenas which wi II be served are identical to the subpoenas which are attached to the Notice of Intent to Serve Subpoenas. T~..Y S, TO O~MAASS ~ &H HAAFFEERR.' '..w LLP. 1/ ID/llR/O/ = :146146.1 STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH flOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANTS -"~--' ." ~",', ,.",- "", '--'''-~I''''.,',"' ~'-- '~' ~,-,_..._"., .'. _,','~"<< -I, """'''''';''''<'''-''_'0',';''' ->';'&''ll, " 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 Mail, postage prepaid, at Harrisburg, I (p~ day of October, 2001, on all Pennsylvania, on the counsel of record as follows: Attorneys for Plaintiffs Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire :140855.1 KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTEMYER, INC., Defendants JURY TRIAL DEMANDED , , ' NOtiCE Of INTENT TO SERVE SlJBPOENAS TO PRODUCE 'DOCUMENTS AND THINGS I'bR . DISCOVERY PURSUANT TO RUG, 4009.21 -~, ~,.,,- "....~ ".,;., TO: Counsel and Parties of Record Defendants, R.S. Mowery & Sons, Inc., and leon E. Wintemyer, Inc., intend to serve subpoenas identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. THOMAS, THOMAS & HAFER, [lP STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANT Date: August 30, 2001 CERTIFICATE OF SERVICE I, STEPHEN E. GEDULDIG, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I served the foregoing document on the following person(s). by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 THOMAS, THOMAS & HAFER, LLP 7~-X=-f <.J STEPHEN E. GEDULDIG, ESQUIRE .. OF COUNSEL F. LEE SHIPMAN JOSHUA D. LOCK ARTHUR L. GOLDBERG (1951-2000) HARRY B. GOLDBERG (1961-1998) RONALP M. KATZMAN PAUL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E, BRENNER JOH-N A. STATLER APRIL L. $TRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. Russo MICHAEL J. CRQCENZI THOMAS J. WEBER STEVEN E. GRUBB ARNOLD B. KOGAN ROyCE L. MORRIS EVAN J. KLINE, III JOHN DELoRENZO JOHN R NINOSKY DAVID M. STECKEL I, ~"" "", 320 MARKET S riET 0 STRAWBERRY SQUARE P.O. Box 1268 to HARRISBURG, PENNSYLVANIA 17108-126-8 717.234,4161' 717,234.6808 (FAX) GOLDBERG, KATZMAN & SHIPMAN, P.C. ATTORNEYS AT LAW September 13, 2001 Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, Pa 17108 Re: Higgins v. Mowery and Wintemeyer Dear Steve: I enclose a copy of the signed Waiver of the 20 day Notice. Please provide copies of any records provided in response to your subpoenas. ~,ve. truly.. yours, / di:' \, '1 Ci,j. . " L#. "-" -~~ -Thomas E. Brenner TEB/jlk 67591.1 Enclosure CARLISLE OFFICE: 717.245.0597 co YORK OFFICE: 717.843.7912 T. d 1.<, ,~~ ' " ~ '1:k:iilil-'..... '~:-' _'lOMAS, THOMAS & HAFER, LLl ATTORNEYS AT LAW JOSEPH P. HAFER JAMES K. THOMAS, 1I ROBERTSON B. TAYLOR JEFFREY B. RETTIG PETER J. CURRY R. BURKE McLEMORE, JR. EDWARD H, JORDAN, JR. C, KENT PRICE RANDALL G. GALE DAVIP L. SCHWALM PETER J, SPEAKER DOuGLAS B. MARCELLO PAULJ.DELLASEGA SARAH W. AROSELL EUGENE N. McHUGH 305 NORTH FRONT STREET SIXTH FLOOR P.O. BOX 999 HARRISBURG, PA 17108 (717) 237-7100 FAX (717) 237-7105 WRITER'S DIRECT DiAL NUMBER STEPHEN E. GEDULDIG KAREN S, COATES TODD B. NARVOL lAMES L OODD-O DANIEL L. GRILL JOHN J. McNALLY, III KEVIN C. McNAMARA BROOKS R. FOLAND JONATHAN C. DEISHER JOHN FLOUNLACKER JOHN T. HUSKIN, JR, MICHELE 1. THORP CLAUDIO 1. DiPAOLO STEPHANIE L. HERSPERGER HUGH p, O'NEILL, III DRUMMOND B, TAYLOR OF COUNSEL JAMES K, THOMAS (717) 237-71'9 August 30, 2001 Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Re: Higgins v. Mowerv and Wintemver Cumberland County No. 00-7560 Dear AttorneY~ Enclosea please find a Notice of Intent to Serve a Subpoena pursuant to Pa.R.C.P. 4009.21 and a copy of said subpoena, regarding the above-referenced matter. If you wish to waive the twenty (20) day objection period, please sign and return the enclosed duplicate copy of this letter and we will send you copies of any documents that we receive as a result of this subpoena. Very truly yours, THOMAS, THOMAS & HAFER, LLP ~ Stephen E. Geduldig SEG:aml Enclosures qJ1Jtq .- liVe. M,.r-eur.r0 .Jl-u d-wd7 GbJ:~ IV if; fic~ r'~L.,J . . LEHIGH VALLEY OFFICE: 3400 BATH PIKE. SUITE 201. BETHLEHEM. PA 18017 (610) 868-1675 FAX (610) 868-1702 t" I_~"-,,,,,-.," i'~o , KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTEMYER, INC., Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Harrisburg Hospital, 111 South Front Street, Harrisburq, FA 17101 (Name of Person or Entity) Within twenty (2'O) days after service of this subpoena, you are ordered by the court to produce the following documents .:or things: Complete copies of any and all documents I without limitation, includinq but limited to records, reports, memorandums, notes, charts, correspondence and studies regardinq Kristi Higgins, SSN: 592-86-9374, Date of Birth: 10/07/73 October 29r 1998 to present at: Thomas, Thomas & Hafer, LLP, 17108-0999 not diagnostic from 305 N. Front St., P.O. Box 999, Harrisburq, PA (Address) 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: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, HarriSburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy " , . ".1 ,-" ,","- '..... '~" """"ti'iit- KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTEMYER, INC., Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Kevin Jackson, D.C., 2816 E. Market Street, York, PA 17402 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all documents, without limitation, includinq but not limited to records, reports, memorandums, notes, charts, correspondence to and from your office and diaqnostic studies regarding Kristi Hiqgins, SSN: 592-86-9374, Date of Birth: 10/07/73 at: Thomas, Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999, HarriSburg, PA 17108-0999 (Addres s) 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: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT 10#: 43530 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy ~&r'-l!.~ . KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTEMYER, INC., Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODPCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Warner Chiropractic Care Center, 5315 E. Trindle Road, Mechanicsburg, FA 17055 (Name of Person or Entity) within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all documents, without limitation, includinq but not limited to records, reports," memorandums, notes, charts, correspondence to and from your office and diagnostic studies regardinq Kristi Hiqqins, SSN: 592-86-9374, Date of Birth: 10/07/73 at: Thomas, Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999, Harrisburq, PA 17108-0999 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoen~, 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 W'i th it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT 10#: 43530 ATTORNSY FOR: Defendant BY THS COURT: DATE: Prothonotary/Clerk, Civil Division Seal of the Court Deputy '~~~W1~,-"",i'~+~;:~~'ful,jg,;f,1Iii;lf.0:Wl)~~'" " "~~'iL4-"_L ~~~ "'" i:! '. I') I:! " " " f! ;1 i, 1,1 i' I' Ii I_I ;1 " J ;1 ! 'I r, il !I Ii ,I r j 0 <::> 0 C ,1 <" <::> :"~-:1 -oC5 ,j rn~ rnr'n -t Z:I,; .-;;>r--- -:.~C,l t;r-~~ -J -'< :c, ~~l;~ eel -0 ~ c5;l~ ~o :::t: .'".... ) );0 t;i' Om C ~ Z ':J'l =<: (1'1 -< - - - ~-, "'I ,,~, "~ ,'--' '''''~'',.',"'''",-~, "., ".:>;-~, ,-,~ ' "-",,,~ . Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Shipman. P.c. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telepllone: (717) 234-4161 Attorneys for Plaintiffs KRIST! E. IDGGINS and FLOYD C. IDGGINS, Individually and as Parents and Natural Guardians of ASHLEY IDGGINS, a minor and KEVIN IDGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CML ACTION - LAW v. NO. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED RESPONSE OF PLAINTIFFS TO DEFENDANTS' MOTION TO AMEND ANSWER WITH NEW MATTER AND NOW, comes the Plaintiffs, Kristi E. Higgins and Floyd C. Higgins, by and through their attorneys, Goldberg, Katzman & Shipman, p.e., who state: 1. Adnritted. 2. Adnritted. 3 . Adnritted. 4. Denied as stated. Plaintiffs' averments involve both the excavation of the berm as well as the lane closure which vehicles such as those of the Plaintiff to travel near the berm area which significantly dropped away from the road surface. Plaintiffs' theories are both for excavation and for negligence in traffic control and forcing PlaintiffKristi Higgins to operate her _ ,'U ~I"".;'-"^'-I ,-~",v~,,,'_,;>,,,~~, '---^;;',"""""~-,,;,"' ,:L'---' ;, ",-",. '",')~,'h'-' vehicle near an area where there was a significant change from the road surface to the drop-off area. 5. i\dnritted. 6. i\dmitted. 7. Denied. Defendants had been aware of the accident and injury involvjng Mrs. Higgins and her children for over three years. The suggestion that they were not aware of what work they were doing in the area of the accident, is not credible. 8. i\dnritted. 9. i\dnritted. 10. Denied. Plaintiffs are without information as to what actions were taken by the Defendants in November, 2001. In further response, this accident occurred in October, 1998, and the Defendants have been aware ofthe accident and its circumstances since that time. 11. Denied. This paragraph states a series of legal conclusjons. 12. Denied. This paragraph merely contains proposed language of the Defendants. 13. Denied. Plaintiffs will be prejudiced, as Defendants have not denied the circumstances or responsibility for this accident for over three years. Now, after the statute of linritations has run , Defendants seek to assert that some unnamed party has a role in this accident. Defendants have acknowledged responsibility for this accident, settling claims with two injured children, which had been approved by this Court. Defendants have acknowledged responsibility for this construction zone and adnritted that the accident occurred in their work area. 'To now let Defendants change that answer and suggest that some unnamed party had responsibility, would severely prejudice the Plaintiffs. - .-'" .. ,.. I"""""',~'~d> '-"-, ,"~, .-',~"..~, <;'-, '--=, ~''''-''-N;',;',,,,,,''.;~ ,,;;;.:'" 'dol');, WHEREFORE, Plaintiffs Kristi E. Higgins and Floyd C. Higgins request that the Defendants' Motion to amend the Complaint be denied. GOLDBERG, KATZMAN & SHIPMAN, P.C. ~ By: Thomas E. Brenner, Esquire Attorney I. D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff . . 1',,",'__ .. ~I ..,-< .- "'~' -- ,~-- ". .,~-,~,,- ," : ~", CERTIFICATE OF SERVICE I hereby certifY that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Stepen R Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, Pa 17108 Respectfully submitted, Shipman, P.C. omas E. Brenner, Esquire P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney J.D. #32085 Attorney for Plaintiffs Date: December 4,2001 {i~_ , . T" r " 1<- ;. ~ "--:'-- -. ~',,;.'';;'' ,;~."-- '....~: < "'''''*1lfil:1. .,' Qic<. c ~~~F; P'c; ..::':, :<. j 11 II " il II I' I II I C:J C) '\ ':--) I cr, -i) "'-1 -:-~~:M f;? '" >~.-, ---I ",.,... 5:J -< , ~ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (X ) for ruRY trial at the next term of civil court. ( ) for trial without a jwy, CAPTION OF CASE (entire caption must be stated in full) (check one) KRIST! E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, (Plaintiffs) (X ) Civil Action - Law ( ) Appeal from Arbitration ( ) (other) (Defendants) ., ".',~ -.. ~: :" '.,-c":,:r.; ", e ma:!]iSt iYill]~'i<s:~~<fP't~~sQf,"'~022' I vs. I R. S. MOWERY & SONS, INC., and LEONE. WINTERMYER, INC., .- --~-.- ..-.-.-.... .a:rs~ornmence ()':'~ept~Jj<o~~?, 200;2 : .. " ... '.-. ~, ;":"~',: ~.:}s.:.~':;:~~::...;,;:..,. ~<-x;;.:_~_-,:' ' .._... ,:;etri?lswill behelq,(:>n~~~~QP2 rlefs'aredueS d"-Y:$befo:",e pretrials.), , , 'e~~~- liS~~ :ili~' ~~~~!,tii~'.~~~';;~~ae i __~E~ ,_. _, _ ",. ,_ ">->-"""""';,-.Y- _~',,,,,^. -"","'-""""""""__'" " "i?~th, a, ,C9RY ..2Lt1:'U?E":!1sipe to all CQ'E'."e1; , urifu-alit to local Rule 214.1.) _, " ' ' ~~~,-~~. ",:,,;-~~~:,..~,_:,~.- '-,:':!'::~'E'J:'.~ ' ."., '".... ~;z, .~_,',. H I i , No. Civil 00-7560 Indicate the attorney who will try case for the party who fIles this praecipe: Stephen E. Geduldig, Esquire Indicate trial counsel for other parties if kncwn: Thomas Brenner, Esquire, for Plaintiff This case is ready for trial. Date: ~ (f"l(tTL :-- Signed: Stephen E. Geduldig, Es<iulre c:: Attcmey for: Defendants, R. S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC. ~ e'''''._ I"^ -1' ,- ,,_-~dd~' . , - 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 Mail, postage prepaid, at Harrisburg, Pennsylvania, on the June, 2002, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for P1aintiffs /<Vf7day . of THOMAS, THOMAS & HAFER, LLP _--:7 --4'-"---" ---..........-- Stephen E. Geduldig, Esqu' :140855.1 -~Hi,j,! i-: I: I: I' ,I ; I: I, I: H '! ~-i " Ii L I: j " "'" "' '", " . ,~~,- = ~ "' ~" "-~"',~",-' " ; ~.-, ,~.,~. ,~ S-."'-_(,' ,-,---~, "",,- '--- -'1' '. <-'- "',;,,".'o_,o.,,-",,r._ " '. "~ ".,,/ . (') c:> C) c: I'..,) "I :.S.. (- -VCr; ~:;;; j;::~~ q;!F' .~ "'._~ :-.:0 t"...) '~Ti ~f: c:;, 1,.1., 1::/ ,') '71 ""c. :Jl: lOO"", " l..,; ~() ~) (j;,1 Pc --"I '7 "V ?D :3 , r" -< @ ,--~~ -,~<. ~ I-~ ~ ~~""j"-,,,,,,:~_,.L;',, 9. Kristi E. Higgins and Floyd C. Higgins, Individually and as Parents and Natural Guardians of Ashley Higgins, a Minor and Kevin Higgins, a Minor : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v R.S. Mowery & Sons, Inc., and Leon E. Wintermyer, Inc. : NO. 00-7560 CIVIL TERM ORDER OF COURT AND NOW, August 13, 2002, by agreement of counsel, the above captioned case is hereby continued from the September 9, 2002 trial term. Counsel is directed to relist the case when ready. By the Court, Thomas E. Brenner, Esquire For the Plaintiff Stephen E. Geduldig, Esquire For the Defendant ~ ~ 'i'v/(,.o.L> . q. Court Administrator Id '~,'2' }, C~. "',,", j, ~ -".'-,",,-' ~,<, ~~.~'.' .l!tl~"~~l!!i.'~_1li&~~~.illillli!flilf'^'" ~"lrJ: .,. Bil( >- l:--,.j >- ,,- ~ -< u: i-- Z LL, (-.,) ~ ":J:: ; Cl C) ::~ p= ::~'\ ~ (~j r'- '. ~ t":J C} - ',.() :/:.' >- (j) W " ,.J Z ,~ ,- z ::..C - G L~I.] LU <Cl: U] Q.. LL ':::2:: (-'" ('--I ::J .,J co U ~~n='~ ~""'" "" _.,',,"_,~~,o .0. . ~~> '-illiIiiI~~.!!IiI-' Iii'-: ,~" -~ --~ . .. '.... PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (X ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, (Plaintiffs) (X ) Civil Action - Law ( ) Appeal from Arbitration ( ) (other) vs. :~Th.e tria.lilst wiIi be called o~OCtober"8;2062 C...and R. S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., '~">==- '2::TDarS:"~;j:;inmence on November 4, 2002 (Defendants) .,c_Pretrials will be held, on Octobe.r I6, 2002 _(Briefs are due 5 days before pretrials.) ,.. .. ": (The party listing this case for trial shall provide 'c1:forthwitha_copy of the praecipe to all counsel, ?;~pursuant to local Rule 214.1.) --..,~--.:_- No. Civil 00-7560 Indicate the attorney who will try case for the party who files this praecipe: Stephen E. Geduldig, Esquire Indicate trial counsel for other parties if known: Thomas Brenner, Esquire, for Plaintiff This case is ready for trial. Date: ~ --I 2 --b-z.- Signed: ~ --- ? Stephen E. Geduldig, Esquire Attorney for: Defendants, R. S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC. :172273.2 ,~ ". -'"-.,,,,,', " "'"1''' -, ":"';.,J.,,r -,:,': ,"~, ~I"-L_ -, I"~'-';:-AG.'_::"""~'<~":"~ ,'.,-,.--,-"",,,..., ,,,_,~~, -i _,'c,' "_" i'Jii:.~ '. 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 Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~~ day of August, 2002, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire : 172273.2 ,,~,,"'~~ " ' _J ci "';.',,,,,,,,,;,,; ~<.~- ",_." .~,. '''"=.~, - ~,. " .- .-" ,~ c'':__--:",--:'- "':'''''''._---.- '~'.;,,~ ~". - -- ~~ 'i:ili (-----. , ~ ~, ' , ~, __/",,"'" .->,' ';-';;"'--'-="'h'-.l':-~ " ~. "-"i-':-' <_ .., ,0 ~ , ,-'" (') :;; <" "'Oi5::' f-ri ~ ','. ~l~j~") en "-~ rO rf~ -" '-o'_'-"'fA_;' -, -'~'. ", ,-, ~, c; r'~) C) -1"1 }'::.'!3I -,:iJ \,,L1 Ji <,; ._j_., ",,"i'<. " \-_:::;;; ;Y1 y C) "" --"'}~ ~,_-'-, t.. ) ~fTl :0 -< " I' -^',,",-, "'~- . ','"-- ->;,-;~ ""'-:" ,n_ - .'~Eii-,: " NOV 2 9 2001 \..-0 KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of 2001, it is hereby ORDERED that Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. may amend their Answer and New Matter to Plaintiff's Complaint, Paragraph 6, to read: Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114 while technically within a construction zone. However, it is denied that where Plaintiff's accident occurred was within the area of work performed by Defendants or that Defendants caused or created any condition which caused or contributed to Plaintiffs' accident. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). BY THE COURT: J. - .. r' -I" - .'-.- ". - I" - - I <.. .,' --,~-., ,." - ,.,;" ~F." _, ", ,...':t:-j ..,,(;:,.: 'ff""" Stephen E. Gedulpig, Esquire Attorney I.D. No, 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E.Maii: seq@tthlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED MOTION TO AMEND ANSWER AND NEW MATTER PURSUANT TO Pa.R.Civ.p 1033 AND NOW, comes Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., by and through their attorneys, Thomas, Thomas & Hafer, LLP, and move this Honorable Court for leave to Amend their Answer and New Matter pursuant to Pa.R.Civ.P 1033 for the reasons set forth as follows: 1. Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. move this Honorable Court to grant them leave, pursuant to Rule 1033 to Amend their Answer and New Matter t' 1" >,", 1-, ".1 "'''__ .,_ ',. ,'.' . .'~ '.-.' . - --4t.' '~,'" e,_'a' following the recent receipt of more specific information regarding the incident. 2. Plaintiffs' action arises from an automobile accident that occurred on October 29, 1998 on Route 114, Silver Spring Township, Cumberland County, Pennsylvania. A copy of Plaintiffs' Complaint is attached hereto as Exhibit A. 3. Plaintiff alleges that while driving through a road construction project, the left side of her vehicle left the roadway and encountered a drop-off to the berm which caused her to lose control of her vehicle. Plaintiffs' Complaint, Exhibit A, paragraphs 5-7. 4. Plaintiffs allege in their Complaint that Defendants are liable for excavating the berm and leaving the lower berm unprotected during their construction. Plaintiffs' Complaint, Exhibit A, paragraph 9. 5. Paragraph 6 of Plaintiffs' Complaint states: Plaintiff Kristi Higgins was operating the vehicle and traveling in a southerly direction on Route 114 when she encountered a road construction project involving work in the median area between the northbound and southbound lanes being conducted and maintained by the Defendants. 6. In their Answer and New Matter, Defendants replied to Paragraph 6 of Plaintiffs' Complaint as follows: Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114, and that the accident occurred in a ..I- ...1 ~', '~~::I NOV-21 01 10:18 FROM:THOMAS THOMAS 7172377105 TO:717 240 6573 PAGE: 02'02 construction zone maintained by the Defendant, Leon E. Wintermyer, Inc. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 7. Defendants provided the above answer to Paragraph 6 of Plaintiffs' Complaint in good faith, having based their answer on the limited information provided by the police accident report and the fact that they were doing some road work in the general area. The police report is attached hereto as Exhibit B, and notes that the accident occurred in a "construction zone" . 8. On October 17. 2001, Defendants received Plaintiffs' Answers to Interrogatories and Responses to Request for Production of Documents. 9. Included in Plaintiffs' Responses to Defendants' Request for Production of Documents were photographs showing the scene of the accident. 10. Upon counsel's review of theSe Photographs with his client on November 14, 2001. Defendants have determined that the subject accident did not occur in an area where Defendants were actually working, and that the berm drop off where Plaintiff claims her accident occurred was not created or maintained by Defendants. 11. Pursuant to Rule 1033, a party either by filed consent of the adverse party, or by leave of court, may at any time I ,1"-'"" --I"-"~-' ,-., " ',,", ,., "-_'..' J ., _ '~-"i .. .I,. :~' amend his pleading. The right to amend pleadings should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party. 12. Based on the new information provided for the first time to Defendants, which have allowed them to clarify where the accident occurred, Defendants request that their answer to Paragraph 6 of Plaintiffs' Complaint be amended to read as follows: Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114 while technically within a construction zone. However, it is denied that where Plaintiff's accident occurred was within the area of work performed by Defendants or that Defendants caused or created any condition which caused or contributed to Plaintiffs' accident. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 13. Defendants timely file this motion for leave to amend their Answer; Plaintiffs are not prejudiced in any way by the proposed amendment; and the amendment will allow the case to be decided on its merits. WHEREFORE, Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. request this Honorable Court to grant leave to amend its Answer and New Matter to Plaintiffs' Complaint, Paragraph 6, as stated above. t-' ,\,_'~.' 1{z,o(O( Date By: '~--'='~"I" -"~-" -, '" - '..l.' .,,'_;' '_'_ ~~- . "-I Respectfully submitted, THOMAS, THOMAS &: HAFER, LLP ~ - ~ ~ STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY &: SONS, INC. and LEON E. WIN'l'ERMYER, INC. ~,' .t.. .,..' .' I' .. _'~I "'.- -"1"-"""" ". .~, "pC", CERT~F~CATE OF SERV~CE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage Pennsylvania, on the <Jv.(l, prepaid, at Harrisburg, .Ald~/~ , 2001, on day of all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN << SH~PMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for Plaintiff llll-o {D( Date Respectfully submitted, THOMAS, THOMAS << HAFER, LLP By: ~~ C/ STEPHEN E. GEDULDIG, ESQU~ Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY << SONS, ~NC. and LEON E. W~NTEMYER, ~NC. ,',' ..~,~ ~I, I. _ '~ llllli~J-""_""'M"d_""',, ,.-. Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs KRIST! E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN IDGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW () f;: \~'"', v. s~~::~ --::::r-' (;:,'.:> ~~~; ..:..:-- "C:'~ ,-" 5~? JURYTRIALDEMANDED ~; -< h.~ NO. 00-7560 CIVIL , ) ,- R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants :~J ;~ ,I ,- - ' =-'.:" -<': NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims setforth 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 judgment may be entered against you by the Court without further notice for any money claimed in the Complaintorfor 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. IFYOUDONOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ,.1' .I I,., ........... ~..:.tF . ,. NOTICIA Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 par abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones a las demandas en contra de su persona. Sea adlsado que si usted no se defiende, la sin previo aviso 0 notificacion y par cualquier quja 0 puede perder dlnero 0 sus propiedades 0 otros derechos impartantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUF1CIENTE DE PAGAR TAL SER VICIO, V AYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABATO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ~ ~ Iw ~ 0' 'll!<&l!dl"_-*<lim"t-: '. .. Thomas E. Bre11l1er, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneysfor Plaintiffs KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION -LAW v. NO. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, by their attorneys, Goldberg, Katzman & Shipman, P.C. who state: 1. Plaintiffs, Kristi and Floyd Higgins, are adult individuals residing at 2513 Tremont Drive Eustis, Florida 32726. 2. Defendant, R. S. Mowery & Sons, Inc., is a business entity which engages in road construction work within the Commonwealth of Pennsylvania including this county with offices located at 625 Hamilton Street, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Leon E. Wmtermyer, Inc., is a business entity which engages in road construction work within the Commonwealth of Pennsylvania including this county with offices located at 220 YocumtownRoad, Etters, 17319, York County, Pennsylvania. 4. This matter involves a motor vehicle accident that occurred on October 29, 1998 on Route 114, Silver Spring Township, Cumberland County, Pennsylvania in a construction area. I~~ J ~_ -~_~,c-, '.. ~~. 5. Plaintiffs, Floyd C. and Kristi E. Higgins were the owners of a 1998 Ford Expedition vehicle. 6. PlaintiffKristi Higgins was operating the vehicle and traveling in a southerly direction on Route 114 when she encountered a road construction project involving work in the median area between the northbound and southbound lanes being conducted and maintained by the Defendants. 7. As Kristi Higgins traveled through the construction project at approximately 9:15 p.m. she operated her vehicle along the left hand side of the only open travel lane. The berm area to the left of the travel lane contained a drop-off and was not marked or barricaded to prevent vehicles being operated in a southerly direction from entering into this drop-off area. 8. Ms. Higgins' vehicle traveled off the road surface into the berm area which was significantly lower than the road surface. As she attempted to extricate her vehicle from the berm she was unable to control the vehicle and the vehicle rolled over resulting in personal injuries to Kristi Higgins. 9. The aforesaid accident was solely as the result of the negligence of Defendants Mowery and Wintermyer in that they: a. excavated the berm area and failed to barricade that area from traffic traveling through the area; b. created a lane closure in the western lane for southbound Route 114 that caused vehicles to travel near the berm area; c. failed to alert drivers of the excavation and drop-off area of the berm and the potential hazards for vehicles encountering that area; 2 s: ~~- ""~ , "Ii 1,- "~~y; '. ~,' d. failed to provide adequate lighting for the construction site so that vehicle operators such as Ms. Higgins could observe the dangerous condition created by the excavated berm, and e. violated the laws of the Commonwealth regarding an ongoing road project. 10. Solely as the result of the negligence of the Defendants, Kristi Higgins sustained the personal injuries set forth. COUNT! KRIST! E. mGGINS v. R.S. MOWERY & SONS. INC. and LEON E. WINTERMYER. INC. . 11. The averments of paragraph 1 through 10 are incorporated herein by reference. 12. As a result of the accident, Kristi Higgins sustained personal injuries including: a. Cervical spine strain and sprain; b. Acute cervicalalgia; c. Acute headaches; d. Thoracic spine strain and sprain; e. Acute lumbar disc displacement; f. Acute lumbalgia; g. Acute sciatica, and h. Bruises, contusion, aches and pains throughout her body 13. Solely as a result of the negligence of the Defendants, PlaintiffKristi Higgins has undergone medical treatment and continues to seek medical care for the injuries she has sustained. 3 ,~ .J ~_~~'l" . . ...... . . ,. 14. PlaintiffKristi Higgins continues to suffer from the effects of this accident as: a. She continues to have back pain, b. She is bothered by pain in her day to day activities, c. She has chronic posttraumatic Pelvic, Lumbar, and Thoracic, and cervical spine subloxation complexes, d. Chronic post traumatic paraspinal and pelvic girdle fascail pain and, e. She has incurred a 10% permanent impairment of the whole body. 15. Solely as a result of the negligence of the Defendants, Kristi Higgins has been required to incur the cost of medical treatment and medications and she will continue to incur these costs. 16. Solely as a result of the negligence of the Defendants, PlaintiffKristi Higgins has undergone, continues to incur, and will in the future undergo, great physical and mental pain and suffering, great inconvenience in carrying out her daily activities, loss oflife's pleasures and enjoyment and a claim is made for these damages. 17. Solely as a result of the negligence of the Defendants, Plaintiff Kristi Higgins has been subjected to great humiliation and embarrassment and a claim is made for these damages. 18. Solely as a result of the negligence of the Defendants, PlaintiffKristi Higgins has sustained and in the future will sustain work loss and an impairment of earning capacity and a claim is made for these damages. WHEREFORE, Plaintiff: Kristi Higgins, demands judgment against the Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., jointly and severally, in an amount in excess of $25,000, together with delay damages and costs of suit. 4 ~=-- . . , " KRlSTI E. HIGGINS and : FLOYD C. HIGGINS, Individually and as Parents : and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs v. R.S. MOWERY & SONS, : INC., and LEON E. WINTERMYER, INC., Defendants . ,- ;-1,'_ , 1__ _ I_"__~~ _ ~ ,-, ~ .-. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-7560 CIVIL TERM ORDER OF COURT AND NOW, this 18th day of December, 2001, upon consideration of Defendants' Amended Motion To Amend Answer and New Matter Pursuant To Pa. R. Civ. P. 1033, a Rule is hereby issued upon Plaintiffs to show cause why the relief requested should not be granted. RULE RETIJRNABLE within 20 days of service. Thomas E. Brenner, Esq. P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiffs BY THE COURT, of! J. .~ ~ (+ 1;.1.-' r-()/ \;>r::"<v/\:1ASi")!\'::1d AJ\!rC<J ('r.,:""/~:-.;::=/-:rJ LS:Ql:~\) 81:J=J!O }'.L"f~.c:'- _ ~-': ' ,'-j ._:-i,,:~ :;'-J C~'ld 1"'-' ,- "lMci:;', Stephen E. Geduldig, Esq. 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 Attorney for Defendants :rc ~ ~ J ',"_ ~~_ - _ -~.' H, 'C" ~__ c;'.- ~-I _ -~ 1 , - >,~ "_< I - ; _:_1" ,'.,. ""i'-c"- ~, ~--~~~..ki i i DEe 1 3 2001 (}) KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of 2001, it is hereby ORDERED that Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. may amend their Answer and New Matter to Plaintiff's Complaint, Paragraph, to read: Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114 while technically within a construction zone. However, it is denied that where Plaintiff's accident occurred was within the area of work performed by Defendants or that Defendants caused or created any condition which caused or contributed to Plaintiffs' accident. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). BY THE COURT: J. .. -., -I' ~ ,- _ -'. ;,,1__.- , ~- I', ~'. .-~ -, -""-"-..-. " ,--. 'Iij . Stephen E. Geduldig, Esquire Attorney 1.0. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E.Mail: sea@tthlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED AMENDED MOTJ:ON '1'0 AMEND ANSWER AND NEW MATTER PURSUANT TO Pa.R.Civ.p 1033 AND NOW, comes Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., by and through their attorneys, Thomas, Thomas & Hafer, LLP, and move this Honorable Court for leave to Amend their Answer and New Matter pursuant to Pa.R.Civ.p 1033 for the reasons set forth as follows: 1. Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. move this Honorable Court to grant them leave, pursuant to Rule 1033 to Amend their Answer and New Matter ~- -<- . IL .. '.' J _-. .1 , 1 ~ ,--",'.:',.,:::: ~-~~: following the recent receipt of more specific information regarding the incident. 2. Plaintiffs' action arises from an automobile accident that occurred on October 29, 1998 on Route 114, Silver Spring Township, Cumberland County, Pennsylvania. A copy of Plaintiffs' Complaint is attached hereto as Exhibit A. 3. Plaintiff alleges that while driving through a road construction project, the left side of her vehicle left the roadway and encountered a drop-off to the berm which caused her to lose control of her vehicle. Plaintiffs' Complaint, Exhibit A, paragraphs 5-7. 4. Plaintiffs allege in their Complaint that Defendants are liable for excavating the berm and leaving the lower berm unprotected during their construction. Plaintiffs' Complaint, Exhibit A, paragraph 9. 5. Paragraph 6 of Plaintiffs' Complaint states: Plaintiff Kristi Higgins was operating the vehicle and traveling in a southerly direction on Route 114 when she encountered a road construction project involving work in the median area between the northbound and southbound lanes being conducted and maintained by the Defendants. 6. In their Answer and New Matter, Defendants replied to Paragraph 6 of Plaintiffs' Complaint as follows: Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114, and that the accident occurred in a ", -" 'I" 'ok ,,- 1,- "---- -.,j" ""I construction zone maintained by the Defendant, Leon E. wintermyer, Inc. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 7. Defendants provided the above answer to Paragraph 6 of Plaintiffs' Complaint in good faith, having based their answer on the limited information provided by the police accident report and the fact that they were doing some road work in the general area. The police report is attached hereto as Exhibit B, and notes that the accident occurred in a uconstruction zone" . 8. On October 17, 2001, Defendants received Plaintiffs' Answers to Interrogatories and Responses to Request for Production of Documents. 9. Included in Plaintiffs' Responses to Defendants' Request for production of Documents were photographs showing the scene of the accident. 10. Upon counsel's review of these photographs with his client on November 14, 2001, Defendants have determined that the subject accident did not occur in an area where Defendants were actually working, and that the berm drop off where plaintiff claims her accident occurred was not created or maintained by Defendants. 11. Pursuant to Rule 1033, a party either by filed consent of the adverse party, or by leave of court, may at any time " I~ . '-'1 __H-,-,,,-_ _ .'C' , . "- - ~< amend his pleading. The right to amend pleadings should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party. 12. Based on the new information provided for the first time to Defendants, which have allowed them to clarify where the accident occurred, Defendants request that their answer to Paragraph 6 of Plaintiffs' Complaint be amended to read as follows: Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114 while technically within a construction zone. However, it is denied that where Plaintiff's accident occurred was within the area of work performed by Defendants or that Defendants caused or created any condition which caused or contributed to Plaintiffs' accident. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 13. Defendants timely file this motion for leave to amend their Answer; Plaintiffs are not prejudiced in any way by the proposed amendment; and the amendment will allow the case to be decided on its merits. 14. Plaintiffs oppose the above proposed amendment to Defendants' Answer and New Matter WHEREFORE, Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. request this Honorable Court to grant leave to . ' ,,- I"" 'J ~J 1-- ~.~--- ~ ,- o' .- amend its Answer and New Matter to Plaintiffs' Complaint, Paragraph 6, as stated above. 11" /(0 (O( Date By: Respectfully submitted, THOMAS, THOMAS << HAFER, LLP ~- ~ -- ~EPHEN E. GEDULDIG, ~UIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY << SONS, INC. and LEON E. WINTERMYER, INC. -" -. me .-.,Ii 1. , ;- I ,-I. .', '" .".,. ,. _ :~ .,' -,:..' c.._",,-' , .,! ,'~ 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 Mail, Post~g~prepaid'~ Harrisburg, Pennsylvania, on the ~ day of ~D~ , 2001, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for Plaintiff Respectfully submitted, THOMAS, THOMAS & HAFER, LLP (Z,(loQ (ur By: Date STEPHEN E. GEDULD ,ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY & SONS, INC. and LEON E. WINTEMYER, INC. -,~~~<-."."" i ._... ...J..~._L \ - ~ 1 _Wf>-i",,,,,,_l'Il_~",",',. .' Ii' . -V- COUNT II FLOYD C. IDGGINS v. RS. MOWERY & SONS. INe. and LEON E. WINTERMYER.INC. 19. The averments of paragraph I through 18 are incorporated herein by reference. 20. Plaintiff Floyd C. Higgins is the husband ofPlaintiffKristi Higgins. 21. As a direct result of the negligence of the Defendants, Plaintiff Floyd Higgins was deprived, and may in the future, be deprived of the care, companionship, consortium and society of his wife, all of which are and will be to his great detriment and a claim is made for these damages. WHEREFORE, Plaintiff, Floyd Higgins, demands judgment against the Defendants R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., jointly and severally, in an amount in excess of $25,000, together with delay damages and costs of suit. Respectfully Submitted: GOLDBERG, KATZMAN & SHIPMAN, P.C. ,~ Thomas E. Brenner, Esquire Attorney J.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, P A 17108-1268 Telephone: (717)234-4161 Attorney for Plaintiffs DATE: ~ (17/01 54404.1 5 -"1"-' . . '",' ,. " .J 1....1.. ._ Jo.'._.\I;H""~ol<t;\l VERIFICATION I, Kristi E. Higgins, hereby acknowledge that I am a P1aintiffin this action and that I have read the foregoing docrunent and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subjectto penalties ofl8 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ~-~ Q:t~ Date: ,,=.>~ ., . .,:.,.. I~ .I_..J_ ~ . ~ ~i:_",-"" ~. ~-"","'m,;~;;.,,""'" VERIFICATION I, Floyd C. Higgins, hereby acknowledge that I am a Plaintiff in this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that anyfalse statements herein are made subject to penalties ofl8 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 'w~~- Flay C. Hi~ ~,.~ ~, J _,-1._ ~, ~"'~ ~ "l>'.f;-"'ll_<JJ1I<;\~l'i'_1;" ~~. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Ru1es of Civil Procedure, by depositing a copy of same in the Unites States Mail, at Harrisburg, Pennsylvania, via Certified Delivery, postage prepaid as follows: Steve Gedu1dig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor, P.O. Box 999 Harrisburg, Pa 17108 Datef (dJ lor enner, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, Pa 17108-1268 (1717)234-4161 Attorney J.D. #32085 Attorneys for By: } >;,i.'." "~ "",J....i_ - . ~+ " _. '~'-'~'~;"'1iM~tl Y"';"~ _-"I'l-'-ii"ilf-~~Lirm .' ,~C~ ','._ .1ll~W .-.-~,~:...~~. ~ ~l~!lmfllilj!'lf -~ I '," ..... (') <::J <..-:J c: -" :?.. ~ -c;,'Ti ~""- :.:1 2!~D a -n -oJ,""; , ; , r= 655;: N ''T1 -/ c-) rEeS I :T~I C) --, "'" zi~;; ::x ~i i;? )>--/ - c: - / ::;~~ --j .:n 5:J -< eJl -< g ,,"""" I' _ j, :1____ .j,',---,,: " ~$iW, ~'-~=""~-'---,---. - ' " q ~ J ~ o~ I ~cvf {U~ \ )'V,. nv~~ ~~ . ~ ru,~ In 2f<<- ~ ~ T -- ~"' - ~- ." ~ . -,--~ "" _-,;t~'~--;'_ ,,"',. ,id' . ~ - -.'- -. .'L." !"'dti_""_; ,,-, '>", -~,;';o;jo ;': ,-.1.." - _'_:-, '_+." ;_J'';:''~' .~__:: ic~ :'-', _ _ ,i- - _ ; __.' " ^ ,-~_ -,' " _ ~:o-- -,',,~-~-;fi , , SEP 0 6 2002 Thomas E. Brenner, Esq. Attorney 1.. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, P A 17108-1268 Telephone: (717)234-4161 Attorneys for Plaintifft KRIST! E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW v. NO. 00-7560 CIVIL RS. MOWERY & SONS, INC., and LEONE. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED RESPONSE OF PLAINTIFFS TO RULE TO SHOW CAUSE RELATING TO DEFENDANTS' AMENDED MOTION TO AMEND ANSWER AND NOW, comes the Plaintiffs, Kristi E. Higgins and Floyd C. Higgins, by and through their attorneys, Goldberg, Katzman & Shipman, P.C., who state: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied as stated. Plaintiffs' averments involve both the excavation of the berm as well as the lane closure which directed vehicles such as those of the Plaintiffs to travel near the berm area which significantly dropped away from the road surface. Plaintiffs' theories are both for excavation and for negligence in traffic control and , :-'.;---- - .-",' ,-,- (,;-----; ,~-"'< -/,-'-~.~<:~-~ forcing Plaintiff Kristi Higgins to operate her vehicle near an area where there was a significant change from the road surface to the drop-off area. 5. Admitted. 6. Admitted. 7. Denied. Defendants had been aware of the accident and injury involving Mrs. Higgins and her children for over three years. The suggestion that they were not aware of what work they were doing in the area of the accident, is not credible. 8. Admitted. 9. Admitted in part. Numerous photos were provided including the area of the accident and the surrounding area. 10. Denied. Plaintiffs are without information as to what actions were taken by the Defendants in November, 2001. In further response, this accident occurred in October, 1998, and the Defendants have been aware of the accident and its circumstances since that time. 11. Denied. This paragraph states a series oflega! conclusions. 12. Denied. This paragraph merely contains proposed language of the Defendants. 13. Denied. Plaintiffs will be prejudiced, as Defendants have not denied the circumstances or responsibility for this accident for over three years. Now, after the statute of limitations has run , Defendants seek to assert that some lI1I1lamed party has a . . '" .... ..'.....',......""..' .."..'m.....","'''''',,'..,~,~..' "..' .","",...,,,,,,,",,,!1 role in this accident. Defendants have acknowledged responsibility for this accident, settling claims with two injured children, which has been approved by this Court. Defendants have acknowledged responsibility for this construction zone and admitted that the accident occurred in their work area. To now let Defendants change that answer and suggest that some unnamed party had responsibility, would severely prejudice the Plaintiffs. 14. Admitted. WHEREFORE, Plaintiffs Kristi E. Higgins and Floyd C. Higgins request that the Defendants' Amended Motion to amend the Answer to the Complaint be denied. GOLDBERG, KATZMAN & SHIPMAN, P.C. B renner, Esquire Attorney I. D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff ~~ '~'~'~,""Y>h<. ^__.'C'_,'.- ". --_'_';-'~""-~A"--'" ..,~- -,-.\',""C,',",_'. '"""':,",--:~-i'-_;4;'! CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, Pa 17108 Respectfully submitted, Shipman, P.C. omas E. Brenner, Esquire P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney J.D. #32085 Attorney for Plaintiffs Date: December 21,2001 - ._'~ ~,"'-- - """"":,-,-:..,',,, ., .~=j ," ~"~--"'--[~::::r'- . 'L " ~ 'c"" 'C,'- -',' -,. ." ~-," "" <~', o c: -7 ~, -oiii S2SJ Z~, CP~'; "'(?- ,<C :P-C Z,~', :;;C z :;l Cl o ,." '{"') '" 0" , , , i I I I o '"'rt -v 3 G '" <11 ~ ,L_-<"' '~~ tsfn -... ;E- ~ ,- .._._.ffi. " , '-. KRIST! E. HIGGINS and : FLOYD C. HIGGINS, individually and as Parents : and Natural Guardians of ASHLEY HIGGINS, a minor, and KEVIN HIGGINS, a minot, Plaintiffs v. R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants "." ,,~ " ,.,1 " I1Wr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-7560 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of September, 2002, upon consideration of Defendants' Amended Motion To Amend Answer and New Matter Pursuant to Pa. R. Civ. P. 1033, and of the Response of Plaintiffs to Rule to Show Cause Relating To Defendants' Amended Motion To Amend Answer, an argument/hearing is scheduled for Monday, October 14,2002, at 11:15 a. m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. Thomas E. Brenner, Esq. P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiffs BY THE COURT, ~' ~d~ 9_IO.O;L ~, "~;;;"';', ... :.- ,.' I ; I ~ ' -, ,-. MiIiOt "~, c."' .,;""'-'-'.-'h.,,, ,,~ ,. tJr .~. ViNVAlASNN3d I ".II""~,J'1 r!)'''',,'l~J:,::C1'.,~lnf'\ 1\lJ'j \. \" ',': ~ ,'.: <_J" . H.J SS :(; Ii\! G- d3S GO .U','i(',\I.'.. ,:.In ^U'{_'~/;\i,--" ,~,_'.~ ,~. __",' 3JIJ,iu-{md ." ~1 ! l , . ~ -;ill, ,', JL"c; I, ,j .:.' ,', '".-,,,, -'. '~ -. Stephen E. Geduldidg, Esq. 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 Attorney for Defendants :rc '.L , ..I J... ~ ~~ . ~,f;\j~~;, 11. Kristi E. Higgins and Floyd C. Higgins, Individually and as Parents and Natural Guardians of Ashley Higgins, a Minor, and Kevin Higgins, a Minor : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 00-7560 CIVIL TERM R.S. Mowery & Sons, Inc. and Leon Wintermyer, Inc. ORDER OF COURT AND NOW, October 8, 2002, by agreement of counsel, the above captioned case is hereby continued from the November 4, 2002 trial term. Counsel is directed to relist the case when ready. By the Court, ~ Thomas Brenner, Esquire For the Plaintiff Stephen E. Geduldig, Esqnire For the Defendant ~ IW'-~ /D-q- (Jp 9-- Court Administrator Id . , , l.i ...1: "'.-1., ----,.",;," KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor, and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW R.S. MOWERY & SONS, INC.,: And LEON E. WINTERMYER, INC. , Defendants No. 00-7560 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of October, 2002, upon consideration of Defendants' Amended Motion To Amend Answer and New Matter Pursuant to Pa. R. Civ. P. 1033, and of the Response of Plaintiffs to Rule To Show Cause Relating to Defendants' Amended Motion To Amend Answer, and following a conference in the chambers of the undersigned judge in which Plaintiffs were represented by Thomas E. Brenner, Esquire, and Defendants were represented by Stephen E. Geduldig, Esquire, and pursuant to an agreement of counsel, it is ordered and directed that Defendants' motion is granted, without prejudice to Plaintiffs' right to contest the factual averments of the amendment. By the Court, J. ". .L,.:': '--'~ldtl.&: -1,-"';' "~ ~wh~~];OURiUll' ~ "-~iIrI \.,~,'f' 1\-1,',-11 r'H " "_ 1,11;\ 'ij \ ii\V~\!i\j:,:'id r:.'. '1._,"': '--"_. """",11('11' .,.._,,~.. 'Iv ! ~ 1 :;~ \- 'd 9 .~ IJlJ ;~O :JO '" ~---" ,~.~- ." .--,.,:",,,,, ~~~"~~, , , ~. ~ I I I , I I; ,. Thomas E. Brenner, Esquire For the Plaintiffs Stephen E. Geduldig, Esquire For the Defendants wcy ~i-r,,". J.L.'I__ ,i,',,_ :1 ki..i ~fYV':.lul .._~~~., /0_,<.-6V 9- c <, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUJ\1BERLAND COUNTY Please list the following case: ( Check one) (X ) for WRY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) ( check one) KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and. a5 Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, (plaintiffs) (X ) Civil Action - Law { ) Appeal fro:n Arbitration ( ) (other) vs. , 'The trial list will be calleq on January 7, .2003 -and R. S. -MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., ,,"C1'~ commence" on February 3, 2003 - -~~~-""""''-'' (Defendants) .',Pretrials will be held on January 15, 2003 (Briefs are due 5 days before pretrials.) -(The party listing this case for trial shall provide c::o:Lorthwith a copy of the praecipe to all counsel, _pursuant to local Rule 214.1.) No. Civil 00-7560 Indicate the attorney who will try case for the party who files this praecipe: Stephen E. Geduldig, Esquire Indicate trial counsel for other parties if known: Thomas Brenner, Esquire, for Plaintiff This case is ready for trial. Date: /CY9 b ( I ~'~~--;:'Z Signed: ~ ' " , Stephen E. Geduldig, Esquire . '" ".' Attorney for: Defendants, 'R. S. MowERY & SONS, INC., and LEON E. WINTERMYER, INC. :172273.3 ,-- '..'^ ~. \' , .,"' '; ''''-''',., ,~..- ,'I ' ~.~_~, ,h;;._,':'; - _ "" V;;_{;k;..;-i~_';;>;''''", .;';'~:~i,.,;_. M..,,--;j,j.,;1;i: '. 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 Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~ day of October, 2002, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP ~, ---- Stephen E. Geduldig, Esquire :172273.3 ,if bd llmilllil_- - r' ~> """"L' <:';'~~liYiJ..i!l ~l ~ ' ~,,~ ,'....... {j c: -02! Q)L"~; ""---;:: ;::..':l. CfJ ,- ~ 'f(~ ;~(:J ;S''-'C: "7 ::-1 -< ;.x .',. '-d' -," C) r".J C::J .'-") :--i "" -,~ , I :1 c--, .:::.;=-\ Ci'.i ';' .;(~\ "'r ",j ~;- \ "'~,"t' ~.",;: .;:"-)r(~ ':9 ~ '- ':XJ '< B ,.. "-""_"__1_ -,"'~'-'"~ ~~-~-_+'H_-f,' >"",".,-,..- '_,y, -- '--';'c""-,,,,-;H ~'" ,-,"'q -,C-""",,~ '-~',.,,~_-, . " Stephen E. Geduldig. Esquire Attorney 1.0. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seg@tthlaw.com Attorneys for Defendants: R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. KRISTI E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No. 00-7560 CIVIL R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants JURY TRIAL DEMANDED AMENDED ANSWER AND NEW MATTER OF DEFENDANTS, R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER. INC.. TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc. ("Defendants"), by and through their undersigned counsel, Stephen E. Geduldig, Esquire, of Thomas, Thomas & Hafer, LLP, and files the following Amended Answer and New Matter to Plaintiffs' Complaint: 1. Denied pursuant to Pa. R.C.P. 1029(e). 2. Admitted in part, denied in part. It is admitted only Defendant, R.S. Mowery & Sons, Inc. is a business entity, which is a building contractor in the Commonwealth of Pennsylvania, '..',.~", .I"~, ,,"-<'~_.,-,'I.,"~'_~-"-'_ .J_' ..,.... h'"'" >' ,',.-", .., ,-",,"j:j:)f.~,,:, "i' , :' ,'I," ,;,:;,,.' I~,t.j,<; ,"~_,,~ -..""j,- ,-~":Ch '.-,,!, ,{\C' '. -'; -,-,:: ',--.:.:;.";", ,;'- &~~\,-~',.;,.;~~,: " ' "C:',II including Cumberland County, and that it has offices located at 625 Hamilton Street, Carlisle, Cumberland County, Pennsylvania. To the extent that paragraph 2 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029 (e) . 3. Admitted that Defendant, Leon E. Wintermyer, Inc., is a business entity which, among other things, engages in road construction work in the Commonwealth of Pennsylvania, including Cumberland County, and it has offices located at 220 Yocumtown Road, Etters, York County, Pennsylvania. to the extent that paragraph 3 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 4. Admitted that Plaintiff was involved in a single vehicle accident on October 29, 1998, in Route 114, Silver Spring Township, Cumberland County, Pennsylvania, in a marked construction zone. To the extent that paragraph 4 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029(e). 5. Denied pursuant to Pa. R.C.P. 1029(e) 6. Admitted in part and denied in part. It is admitted that Plaintiff, Kristi Higgins, was operating the vehicle at the time of the accident on Route 114 while technically within a construction zone. However, it is denied that where plaintiff's accident occurred was within the area of work performed by 2 , -- .-._,--~,~~",-", -,,-"~.-.,. -~- ~I ".o....NO..,....,......., .".............'........ ,~ "Jj~ - 2" ,,,,,-}-,_-w~, ,'=~:;\-V;-.:.-"~.::. :.1 :;"~',,~., - 2;;~,' ;- ::"-, ,__~, _,.:,,:i .;]E- ~ '.; ,- :.;;~;---;,,~"'i;. "jV~-.C,-A-J., ", . ~;,,_);~:,:,;;;; Defendants or that Defendants caused or created any condition which caused or contributed to Plaintiffs' accident. To the extent that paragraph 6 of Plaintiffs' Complaint purports to aver additional facts, same are denied pursuant to Pa. R.C.P. 1029 (e) . 7. Denied pursuant to Pa. R.C.P. 1029(e) 8. Denied pursuant to Pa. R.C.P. 1029(e) 9 (a) - (e) Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 10. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. COUNT I KRISTI E. HIGGINS v. R.S. MOWERY & SONS. INC. and LEON E. WINTERMYER. INC. 11. No response is required and this is a paragraph of incorporation. 12 (a) - (h) Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e) 13. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 3 i\ '-,-'-""- _.'. '--?d""' c. _:;]--,~>'-,;,i'-".; 14(a)-(e). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 15. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 16. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 17. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . 18. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029 (e) . WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. COUNT II FLOYD C. HIGGINS v. R.S. MOWERY & SONS. INC. and LEON E. WINTERMYER. INC. 19. No response is required as this is a paragraph of incorporation. 20. Denied pursuant to Pa. R.C.P. 1029(e). 21. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendants, R.B. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., respectfully request that Plaintiffs' 4 <,<, ~, '"' """''''""'~O'_I_''''_''__''' n' ,~, '-', --~'--'~..--,,--, --""'lA'. ,'- "' ~ j,.'~<.;; :;;,~;- ~"I.; c_., L.:,"__I.;:.~;-,,;(; ;--;:.~ ,,,,.~ -,'~-i,"*>,,;:"-",^,~i,< ,'--;---:;;'~~, ";''''--;~';'''~~~'i2.:K~',~_,2:-; _~'... .- .~-.' -';;';;-,~1 Complaint be dismissed in its entirety and judgment entered in their favor. NEW MATTER 22. Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., incorporates herein by reference, as if fully set forth at length, Paragraphs 1 through 21 of its Answer to Plaintiffs' Complaint. 23. Plaintiffs' claims are limited by the provisions of the Motor Vehicle Financial Responsibility Law. 24. Plaintiffs may have failed to mitigate their damages, if any. 25. Defendants at all times hereto were acting reasonably under the circumstances. 26. Plaintiffs' claims may be barred or diminished in accordance with the Comparative Negligence Act, for the reason that Plaintiffs negligently caused the accident. 27. It is specifically denied that any act or omission on the part of Defendants caused or contributed to any of Plaintiffs' alleged injuries or damages. 28. Defendants assert that this action may be barred by the doctrines of res judicata and/or collateral estoppel, which are asserted herein. 5 " " ,,' ,"co."" "~"', "'c'~.' ,',h,~"'. "... .,.'."...',,",'C, ,~,,," ," ""'0..",,,,,,> .. ;;,Al"';; ',,,,,,'. ',' .,'d"""','k'.w""",,,~l:.;:ii''',,;;'';;''';;;:''';'''~;;:;;' ;'''';'''':''':iN., "," ""~41 WHEREFORE, Defendants, R.S. Mowery & Sons, Inc. and Leon E. Wintermyer, Inc., respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP (6 (/.....<f.L<J<-- ~ ---- ~ By: ;187576.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, R.S. MOWERY & SONS, INC. and LEON E. WINTERMYER, INC. 6 '-"'_'o,i ~,'""..;v; ,,"" . 1_-_ .. - - . -, ,,'~-" c~,~."" 'C-.,- _~,,""" L'",< )- i" "\,c.;r.".;{i- '...":_' ".",,-,jl~- ,,-' ,-, -<1'---' "~ 0 I'~~- -0 ,~, ,,~ ___\;,;;.;;,.;),>;;~;,;-,~ '-..o.,i,"";;fe.~,~ci.:..k",-~l:~--_;,;:j;:,;; ;,__. -'~':;jiii . . 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 Mail, postage prepaid, at Harrisburg, vvrl'1 day of October, 2002, on all Pennsylvania, on the counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP ~~( Stephen E. Geduldig, Esquire :140855.1 >f: "_~_o un .. ,',,," .. . .., ,,'''' ._~-,'" "-' ",,' ;~' , ...., ,J.. (") r:::.:.~ c.:: .. ti"J c-:J " (~-) m (--;-j ~ ::n -,j ~ L r:- r-,) (j) " <.;'!- --<: r-' (-: ::<: ,.- -c ~E1 ~,,-"- -\ ..'.1 ,- Pr'. r;;> C) r"rl ~, -, s:~ ~ r::- ::;! (T. :':::1 -< .. .-,,-^, - "~ - >,"" -~ " ;"c'_ '" -. Thomas E. Brenner, Esq. Attorney I.. D. No. 32085 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box I268 Harrisburg, PA 17108-I268 Telephone: (717) 234-4I6I '-'d'-"c"",,,;."L",","'i'-i1-. ~_';:- ,,_c - - ,- '<,,' --"_~".::.",';:i;,,~,_~:,;,,,,~,:~,;_~_'~ --"---'';:'o;'\;!(, Attorneys for Plaintiffs KRIST! E. HIGGINS and FLOYD C. HIGGINS, Individually and as Parents and Natural Guardians of ASHLEY HIGGINS, a minor and KEVIN HIGGINS, a minor, Plaintiffs v. R.S. MOWERY & SONS, INC., and LEON E. WINTERMYER, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA CIVIL ACTION - LAW NO. 00-7560 CIVIL JURY TRlAL DEMANDED PRAECIPE TO DISCONTINUE Please mark this action Settled and Discontinued. DATE: J..-!I;.j0.3 Respectfully Submitted, GOLDBERG, KATZMAN & SHIPMAN, P.e. By u~. Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintifft r; ~i "" ";'-'-< "-' -"-~.- , -"-"". ~.< , "'~, ,,,",,,->' ,;;",--',' .-'"" '_h'~ ,;;~, '.-~- o C "TJiti mf,- :Z:;: ,.,-:.:'-.. (0",:-0 ~~; .L ~ c~ W :~~ ~;; ~: P,; Ul (..) -~C) ''--, ~~~6 .-;-;rn .-1 .,~ 'jJ -< .- '.. ".,1', \: f:: il [; .., 1,'1,. I' \; Ii II 1:1 i'I' ,. "I , 'Il 'I Iii 11 I 'I , i .--"1- _;"-~.-;- "-1J <<..'~' 'M_ ,",; - _"_" J. '1- '-, ,+~, _~. , _. ",. _~",'"., r," ::,(.."i.--::,lj~'-~~;;~'_~':~" -j c ~. 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 Pennsylvania, Mail, postage on the ;~ v prepaid, at Harrisburg, day of March, 2003, on all counsel of record as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP =-?'-::~ . Step en E. Ge u 19, Esgulre :140855.1 ,;','~: . I. -~.Hil-"'~" ~ -"""",--<<.,.;",;,-,. '..--!;'",,-,-,... " ., ~ . ^ ," Q c rR~~ ~~',' !:2 ;~. )..-,. ~"~ Zl,,-,' ";:C.1 "-C -7 =l -<., ,."" 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