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HomeMy WebLinkAbout00-08478 #' llIW- , , . .~ 'W:, F:\FILff~\D~AFl\WONEGAL.DOC\159_com.l/ajt Created: 11/15/00 03:20:57 PM Revised: 11/17/00 10:00:43 AM , .. DONEGAL MUTUAL COMPANY, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000- 'i)lf7f ~ T.R.-<r- CIVIL ACTION-LAW CHARLES LEESE and ROADWAY EXPRESS, INC., Defendants JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim orrelief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, 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, Pennsylvania 17013 Telephone (717) 249-3166 MARTSON DEARDORFF WILLIAMS & OTTO By Daniel K. Deardorff, Esquire Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Dare: December 5, 2000 ~~ - L L fu', r . F:\FILES\DATAFILE\DONEGAL.DOC\159_com.1 Created: 11115/00 03:37:57 PM Revised: 11/17/00 10:00:43 AM DONEGAL MUTUAL COMPANY, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO. 2000- f 'In ~ I Lv- CIVIL ACTION-LAW CHARLES LEESE and ROADWAY EXPRESS, INC., Defendants JURY TRIAL OF TWELVE DEMANDED COMPLAINT 1. Plaintiff is Donegal Mutual Insurance Company which is a Pennsylvania insurance company located at P. O. Box 302, Marietta, Lancaster County, Pennsylvania. 2. Defendant, Charles Leese is an adult individual who resides at 650 Drexel Place, New Cumberland, Cumberland County, Pennsylvania 17070. 3. Defendant Roadway Express, Inc. is a business entity located at 100 Roadway Drive, Carlisle, Cumberland County, Pennsylvania, 17013. 4. On or about January 17, 1999, Defendant Leese was involved in a motor vehicle accident while in the course and scope of his employment with Roadway Express, Inc. which was self insured at the time with Gallagher Basset Services as its administrator. 5. At the time of said motor vehicle accident Defendant Leese was insured by Plaintiff Donegal for first party benefit coverage pursuant to a policy of insurance, P AE0426209(86). A copy of the relevant portion of said policy pertaining to first party benefits is attached hereto as Exhibit "A", 6. As a result of said accident, Defendant Leese filed an application for benefits with Donegal requesting medical expenses and wage loss. Said application is attached hereto as Exhibit "B". As a result of said application, Plaintiff Donegal paid wage loss to Defendant Leese in the amount of $5,489.52 and paid medical expenses on behalf of Defendant Leese in the amount of $255.96. The income loss calculation and record of payment are attached hereto as Exhibit "C". 7. While handling said claim for benefits, Plaintiff Donegal contacted the attorney for Defendant Leese by letters dated April16, 1999, October 29, 1999, and December 29, 1999 which are attached hereto as Exhibit "D" and advised Defendant Leese's attorney that in the event he 5' ~. . , . l ,~ .'- .~~ r . collected Worker's Compensation benefits for wage loss and medical expenses which had been paid by Plaintiff, Plaintiff would be requesting subrogation. 8. Plaintiff Donegal also contacted Gallagher Basset Services by letters dated June 30,1999, August 17, 1999 and September 28,1999 which are attached hereto as Exhibit "E" and advised Gallagher Basset Services that it was handling Defendant Leese's claim for first party benefits and requested information as to the status ofthe Worker's Compensation claim. 9. On or aboutJuly 22, 1999, Defendant Leese settled his Worker's Compensation claim with Defendant Roadway Express, Inc. for the amount of $8,076.00 which was paid to Defendant Leese pursuant to a Compromise and Release Agreement which is attached hereto as Exhibit "F". I O. Despite repeated requests, Plaintiff Donegal has not been reimbursed its subrogation lien for the benefits it paid to Defendant Leese which total $5,745.48. COUNT I Plaintiff Donel!al Mutual Companv v. Defendant Leese II. Paragraphs one (1) through ten (10) of this Complaint are incorporated herein by reference and made a part hereof. 12. Defendant Leese's receipt of Worker's Compensation benefits in the amount of $8,076.00 is considered primary over the first party benefits paid to Defendant Leese by Plaintiff Donegal in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Act, 75PACSA Section 1719 (a). 13. Under the policy for insurance for first party benefits between Plaintiff and Defendant Leese which is attached hereto as Exhibit "A" at page four (4) Section C it is indicated that any amounts payable under this coverage shall be in excess over any amounts paid to an insured under any Worker's Compensation law. 14. Based on the above, Plaintiff is entitled to subrogation against Defendant Leese in the amount of $5,745.48 based on Plaintiffs right to subrogation for the Worker's Compensation benefits paid to Defendant Leese. ~ , -'~ " I '" 'd ~l-I-, ." .--"'-<,: c . WHEREFORE, Plaintiff Donegal requests judgement against Defendant Leese in the amount of$5,745.48 with interest, costs and attorney's fees, which are in the limits requiring compulsory arbitration. COUNT II 15. Paragraphs one (I) through fourteen (14) of this Complaint are incorporated herein by reference and made a part hereof. 16. Defendant Roadway Express, Inc. through its administrator was aware of the subrogation lien of Plaintiff. 17. By settling its case with Defendant Leese, Defendant Roadway Express, Inc. violated the subrogation rights of Plaintiff. 18. As the Worker's Compensation carrier for Defendant Leese, Defendant Roadway Express, Inc. was the primary payer of said benefits which had been paid by Plaintiff. 19. As such, Plaintiff is entitled to reimbursement and/or subrogation with regard to benefits it paid from Defendant Roadway Express, Inc. WHEREFORE, Plaintiff demands judgement against Defendant Roadway Express Inc. in the amount of $5,745.48 along with interest, costs and attorney fees, which are in the limits requiring compulsory arbitration. Respectfully Submitted, MARTSONDEARDORFFvnLL~S&OTTO By CJLJ k. ~{j; Daniel K. Deardorff, Esquire I. D. Number 17837 Ten East High Street Carlisle, P A 17013-3093 (717) 243-3341 Date: December 5, 2000 Attorneys for Plaintiff - . MAY-26r2000 F~] 03:41 PM DONEGAL COMPANIES . , FAX NO, 7174267023 P, 02 F'P 05 51 0894 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. FIRST PARTY BENEFITS COVEl'IAGE. PENNSYLVANIA ;..., t. . With respect to coverage provided by this endorSQlTlent, the provisions of the policy apply unless modified by the endorsement. SCHEDULE BASIC FIRST PARTY BENEFIT Benefit Limit Of Liability Medical Expenses $5.000 If indicated below or in the Declarations. \he folloWing options apply instead of the Basic Arst Party aenefit: Medical Expenses Work Loss Funeral expenses Accidental Death Maximum Limit of Liability For The Total of All Combination First Party Benefits NOTE: If Added First Party Benefits or Combination First Party Benefits are not shown as applicable in the Schedule or Declarations, only the Basic First Party Benefit applies. o Added FlrstParty Beneflts Benefits Medioal Expenses Work Loss Funeral Scpens@s Accidental Death o Combination First Party Benefits Benefits I, DEFINITIONS 1M Definitions section is amended as followS; A. "The Act" refers to the Pennsylvania Molor Ve. hicle Financial Responsibility Law. B. The fallowing definitions are replaced; 1. "Bodily injury" means accidental bodily harm to a person and that person's result. ing illness, disease or death. 2. "Your covered auto" means a "motor va. hiclell; Limit Of Liability $ $ $ $ subject to a maximum of $ per month Limit of Liability No specific dollar amount No specifiC dollar amount $2,500 $ $ a. To which Part A of this policy applies and for which a specific premium is charged; and b, For which First Party Benefits Cov- erage required by the Act is maln- tained. C. The following definition is added: "Motor vehicle" means a self-propelled vehicle operated or designed for use upon public roads. However, "motor vehicle" does not include a vehicle operated: 1, By muscular power; or pp 05 51 06 94 Copyright, lnsurance Services Office, Inc., 1993 EXHIBIT "A" Page 1 of 4 - - ..l. -.-;1 ~ , MAY-2Br2000 PRI 03:41 PM DONEGAL COMPANIES . FAX NO, 7174267023 P, 03 b. Not "occupying" a "motor vehicle" if injured as a result of an accidentln Pennsyl~ania irwolving "your cov- ered auto" . /I the Schedule or Declarations indi- cates that Added First Party Benefit9 llpply, we will pay Added first Party Benefits instead of the Basic First Party Benefit to or for an "insured" who sustains "bodily injury". The "bodily injury" must be caused by an accident arising out of the maintenance or use of a "motor vehlele". These benefits are sub- ject to the provisions of the Act, Subject to the limits shown in the Schedule or Declarations. Added First Party Benefits con- sist Of the following: 1, Me4ical expenses as described in the Basic First Party Benefit. 2. Work los!l; a. Loss of income. Up to SOOA> of gross income actually lost by an "Insured" as a result of the accident. b. Reallonable expenses actually. in- currild to reduce 10$5 of income by hiring; (1) Special help, thereby enabling an "insured" to work; or r"': . \. : 2.. On rails or tracks. D. "Insured" as used in this endorsement means: 1. You or any "family member". 2. Any other person while; a. "Occupying" "your covered auto"; or II. If "your covered auto" is parked and un- occupied it is not II "motor vehicle" in- volved in an accident unless it is parked in a manner which creates an unreasonable risk ofinjury. FIRST PARTY BENEFITS COVERAGE INSURING AGREEMENT A. BASIC FIRST PARTY BENEFIT We will pay. in accordance with the Act, the Basic First Party Benefit to or for an "insured" who sustains "bodily injury". The "bodily in- jury" must be caused by an accident arising out of the maintenance or use 01 a "motor vehicle" . Medical expenses. Reasonable and necessary medical expenses incurred for an "insured's": 1. Care; 2.. Recovery; or 3. Rehabilitation. (2) A substitute to perform the ,. .,- work a self-employed "in- \... sured" would have pertormed. However, work loss does not include: a. loss of expected income or ex- penses incurred for servic8$ per- formed after the death of an Ujflsured'l; or Subject to the limit shown in the Schedule or Declarations, the Basic First Party Benefit con- sistsol: This includes remedial care and treatment ren. dered in accordance wilh a recognized religious method of healing. Medical expenses will be paid if incurred within ,8 months from the date of the accident caus. ing "bodily injury". Howe~er, if within ,S months from the date of the accident, itean be determined with reasonable medical probability that additional expenses may be .incurred alter this period, the 1 a month time limit will not apply to the payment of the additional medical ex- penses. B. ADDED FIRST PARty BENEFITS b. Any loss of income, or expenses in. curred lor services performed, dur- ing the first 5 wor~ing days the "insured" did not work due to "bod_ ily injury" . 3. Funeral elCpenses. Funeral or burial ex- penses actually il'lcurred if "bodily injury" causes an "insured's" death within 24 months from the date of the accident. 4~ Accidental death. A death benefit paid il "bodily injury" causes the death of you or any "family member" within 24 months from the date of the accident. We will pay accidental death to the execu- tor Or administrator of the deceased "in- sured's" estate, (fthere is no executor or administrator, the benefit shall be paid tCl: PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 199:3 Page 2 of 4 -- :1 ~ MAY-26~2000 PRI 03:42 PM DONEGAL COMPANIES . ' -. " ( a, The deceased "insured's" surviving spouse; or b. If there is no surviving spouse, the deceased "insured's" surviving children; or c. If there is no surviving spouse or children, to the deceased "in- sured's" estate. C. COMBINATION FIRST PARTY BENEFITS If the Schedule or Oeclarations indicates that Combination Rrst Party Benefits apply, we will pay Combination FIrst Party Benefits instead of the Basic first Party Benefit to or for an "in- sured" who sustains "bodily injury". The "bodily injury" must be caused by an accident arising out of the malntenanoe or use.of a "mo- tor vehicle". These benefits are subject to the provisions of the Act. Subject to the limits shown in the SchedUle or Deolarations. Combination First party Benefits consist of the following, as described in the Basic First Party Benefits and Added Rrst Party Benefits. 1. Medical expenses. 2. Work loss. 3. Funeral expenses. 4. Accidental death. EXCLUSIONS A. We do not provide Rrs! Party Benefits Cover- age for "bodily Injury" sustained by any "in. sured": 1. While intentionally causing or attempting to cause "bodily injury" to himself or any other person. We will not pay accidental death on behalf of that" insured" . 2. While committing a felony. 3. While seeking to elude lawful apprehen- sion or arrest by a law enforcement of li- cial. 4. While maintaining or IJsing a "motor vehi. cle" knowingly converted by that "in. sured". This exclusion (A.4.) does not apply to: a. You; or b, Any "family member" . 5. Who, at the time of the accident, is: , '--', ; ~ - j ~ dlfl)_ FAX NO, 7174267023 P, 04 a. The owner of one or more registered "motor vehi- cles" , none of which haVe in effect the financial re- sponsibility required by the Act; or b. "Occupyil'\g" a "motor vehicle" owned by that "insured" for which the financial responsiblllty required by the Act is not in effect. B. MaintaIning or using a "motor vehicle" while localed for use as a residence or premises. 7. While "occupying" a: a. Recreational vehicle designed for use off public ro~ds; or b. Motorcycle. moped or similar-type vehicle. . B. We do not'provide First Party Benefits Cover- age for "bodily injury": t Sustained by a pedestrian if the accident occurs outside of Pennsylvania. This ex- clusion (B.1.) does not apply to: a. You; or b. Any "family member" . 2. Caused by or as a consequence of: a. Discharge of a nuclear weapon (even if accidental); b, War (declared or undeclared); c. Civil war; d. Insurrection; or e. . Rebellion orrevolution. 3, From or as a consequence of the follow- ing, whether controlled or uncontrolled or however caused: a. Nuclearreaction; b. Radiation; or c. Radioactive contamination. LIMIT OF LIABILITY A. The iimits of liability shown in the Schedule or Declarations for the first party benefits that ap- ply are the most we will pay to or for each "in. pp 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 3 of 4 I ~ MAY-26~2000 fRI 03:42 PM DONEGAL COMPANIES . , sured" as the result 01 anyone accident, regardl~s of the number of: 1. Claims made; Vehicles or premiums shown in the Dec- larations; Vehicles involved in the accident; or Insurers providing first party benefits. 2. 3. 4. B, If Combination First Party Benefits are afforded, we will make available atleast the minimum limit required by the Act for the Basic First Pllrty Benefit. This provision (B.) will not change Our maximum limit of liability. c. Any amounts payable under this coverage shall be;excess over any amounts: 1. Paid: ,. 2. Payable; or 3.. Required to be provided; to an "insured" under any workers' compen- sation law or similar law. PRIORITIES OF POLICIES A. We will pay first party benefits in accordance with the order of priorities set forth by the Act. We will not pay if there is another insurer at a higher level of priority. The Flr$t category listed below is the highest level of priority and the Fourth category is the lowest level of priority, The priority order is: First The insurer providing benefits to the "insured" as a named in- sured. Second The insurer providing benefits to the "insured" a$ a family member who is not a named insured under another policy providing cover- age under the Act. The insurer of the "motor vehi- cle" which the "insured" is "oc. cupying" at the time of the accident. Third Fourth The insurer of any "motor vehi- cle" involved in the accident if the "insured" is not: - j , . -~""j , " '<:'" , ~~ FAX NO, 7174267023 'p, 05 a, "Occupying" a "motor lie- hicle"; and b. Provided first party bene. fits under any other auto- mobile policy. An unoccupied parked" motor vehiOle" is nota "motor vehicle" involved in an acci. dent unl~s it is parked in a manner which creates an unreasonable risk of injury. B. If 2 or more policies have equal priority within the highest applicable priority level: 1. The insurer against whom the claim is first made shall proceS$ and pay the claim as if wholly responsible. ihe iO$urer is then entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of prooessing the claim. If such contributiOn is sought among 1nsurers under the Fourth priority, proration shall be based on the number of involved motor vehicles. 2. If we are the insurer against whom the claim is first made, our payment to or for an "insured" will not exceed the applica- ble limit of liability for Rr!,;t Party Benefits Coverage shown in the Schedule or Dee- lal'ations. 3, .T.he maximum recovery under all policies will not exceed the amount payable under the policy with the highest limit of liability. NON-DUPLICATION OF BENEFITS No one will be entitled to recover duplicate payments for the same elements of loss under this or any other similar insurance including self-insurance. 0,. . . ...1 t \. .' III. PARTF-GENERALPROVISIONS Part F is amended as follows: The O\.lr Right To Recover Payment provision does not apply. This endorsement must be lltlached to the Change Endorsement when issued after the policy is written. PP 05 51 06 94 Copyright. Insurance Service$ Office, Inc., 1993 Page 4 of 4 - C~ ~_-~ =0 ~ . ~ ':" I: , . ~~ ~Oj Route '"1, Box 302 Marietta, Pennsylvania 17647 (7'7) 428-193' APPLICATION FOR BENEFITS TO ENABLE US TO OETERMINE IF YOU ARE ENTITLED TO FIRST PARTY BENEFITS UNDER THE PENNSYLVANIA MOTOR VEHICLE FINANCIAL RESPONSJBIUTY ACT, PLEASE COMPLETE THIS FORM AND RETURN IT PROMPTLY. IMPORTANT: 1. fO BE eUGIBLe FOR BENEFITS YOU MUST COMPLETE AND f;!IGN THIS APPUCATlON. .. YOU MUST AlSO SIGN",... ATTACHED AUTHORIZATION(S). 3. RETURN PRQMPTl Y WITH COPIES OF ANY BILLS YOU HAVE RECEfVED TO DATE. 4. use REVERSE SIDE IF NECESSARY. DATE 01/26/99 OUn POUCYlfOLDER harles & Marie Leese DATE OF ACCIDENT 1/17/99 ALE NUMBER AE 042 62 09 (86) 1. API>L1CANT'S NAME PHONE HOME BUSINESS Charles Leese NO. 1717- n,,-n..J:r zV , a:rJO 2. YOUR ADORESS (NO., STREET, CITY OR TOWN, STATE ANO ZIP CODE) DATE OF BIRTH SOCIAL SECURITY NO. JCi R4'.Ett,eL *45" k-f"-'" C(.Ht}~-"'Q /70717 <1'6 I It(> ill ;rf-z.~-2-C(-J:J 3. OWNER OF VEHICLE Y OCCUPIED OR OPERATED PLACE OF ACCIOEJlI'I" TREET, CITY OR TOWN ANO STATE) /1'CTO'? E}C ';E',C:;1 he/J-~L) /"3e-"'-1 C/};t'~/JC,&'" A- p~. J-- fff'-Rp: 4. BRIEF OES IPTION ACCIDENT A'.q:;;.I/.: . .1?///.,. .. .-/7?If.-~R... . .. ;-( ~ 47:. .: q(-:-:. . . r/'.~:'7!:.. . Irq. . . /~'-:'!-:./~'/r:il" .. . 4. ~.-t.-f.~f.I!:I!:.....<7 c.. !!.~,f..... .c:./7..~!. /.j.... P1:-.r:1J..r.... x~.... ./" :?..'( ./q. ~4;!f jJ/}-u/:" / ,1-t i-' "'--",--" ~ . 5. OESCRIBE A OMOBILES OWNED BY YOU OR ANY M BER OF YOUR FAMILY RESID.ING IN THE SAME HOUSEHOLD. AUTOMOBILE V.I.N. OWNER INSURER' POLICY NQ. LICENSE NO. VEH.lt:/~C/"1&'"lw.z..""'16<f76fr. C/"./Iif,cE..J/,<-(Qlur,f'/}-t'-tr.,,?4ECJ'f2 6201 /3IJL""3o:>o VEH.2 VeH.3 6. AS A RESULT~F THIS A ctDENT WERE YOU INJUREO? YES NO D. IF YOUR ANSWER IS YES, COMPLETE THE REST OF THIS FORM. IF NO, SIGN H. URN TH ORM TO US. ~ ~ I ~ 7. SIGNATURE: _ h~ ~ ~ DATE' <;;--- c:... I. I j 8. OeSCRIBE YOUR INJURY .>?r.I':"'.r... .~.... /t1Jy.':':"'17.:.............................. ..........;......:;......................................... 9. WERE YOU TREATEO BY A DOCTOR OR OTHER ~SON NAME AND ADDRESS OF SUCH PERSON FURNISHING HEALTH SERVICES? YES IlY"'"NO 0 7'-1cJr /pv/3l5d Z,f-Q-v ~b--' ..IT 10. IF YOU WERE TREATED IN A HOSPITAL WERE HOSPITAL'S NAME ANO ADORESS YOU AN IN.PATIENT? 0 OUT.PATIENT? 0 ----..... 11. AMOUNT OF HEALTH BILLS TO DATE:r WILL YOU HAVE MORE ~TH AT THE TIME OF THIS ACCIDENT WERE YOU IN !}:IE $ v~caT r,Z...J EXPENSE? YES;CY'NO 0 COURSE OF YOUR EMPLOYMENT? YEsaJ-1'l6 0 12. 010 YOU LOSE TI ROM WORK? IF YES, H~~ ~YCH TIME? WHAT IS YOUR AVERAGE YES 0 0 C/j<- c. I /.........- WEEKLY EARNINGS? $ /. ~ '^"";f 13. If' APPLICABLE, OATE OISABILITY FROM WORK BEGAN: DATE YOU RETURNED TO WORK: :n-/.../ /"'. (- ~ c-U7 //~ 14. HAVE YOU R CEIVEO, OR ARE YOU ELIGIBL!-EOR ANY MEDICAL OR OISABILlTY BENEFITS UNOE.R: _____ WORKER'S COMPENSATION JJ--YEs" 0 NO FEOERAL SOCIAL SECURITY 0 YES ~ STATE REQUIRED NON.OCCUPATIONAL DISABILITY BENEFITS 0 YES ~ ANY OTHER GOVERNMENTAL BENEFITS PROGRAM 0 YES DESCRIBE 0 NO 15. LIST NAMES ANO ADDRESSES OF YOUR EMPLOYER ANO OTHER EMPLOYERS FOR ONE YI;AR PRIOR TO ACCIDENT DATE AND GIVE OCCUPATION ANO DATES OF EMPLOYEMENT: ' ........... ./f.oI.?).?. :~,;f.{. ~F.r.......... .cr.. .vt... (?!.? ./!.I'r.CJ.~f OCCUPATION FROM TO ~RI-' /71 /f it;(o~DAQ~~c.?!.. ...................... ~MPLOYER AND ADDRESS . . . . . . . . . . OCCUPATION' . . . . . .. .. . . . . . .. . "FRoM" .. . . . . TO . . . EMPLcrfER AND ADDREss . . . . . . . . . . . . . . . . .. ........... occuPATIoN' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FRoM' . .. . . . . . TO 16. AS A RESULT OF YOUR INJURY HAVE YOU HAD ANY OTHER EXPENSES? 0 YES/tJ.-.NlrlF YES. ATTACH EXPLANATION AND AMOUNTS OF SUCH EXPENSES. THE APPLICANT AUTHORIZES ~1NSURER TO SUBMIT ANY AND ALL OF THESE FORMS TO ANOTHER PARTY OR INSURER IF SUCH IS NECESSARY TO PROTECT Irs RIGHTS OF RECO):~RY)lflOVID~D FOR UNDER T!:!lS ACT. EXHIBIT "B" /J _. _ _ ~ , i.. __~ i ,~ _ > . 'J t DIXI1E lDSS BENEFIT CAUlJLATIW f $:) ~ ~ :.AIMANI' : c-~. CIAIM NO.: '"PAC-: 01..1 ~ &,;)09 D/L-1- NC<M: CAI..CUl.ATION [ourly/Daily Rate $ Teekly Wage $ t)11.il x hours/days/week = $ (p c;tCU-t., Lvi.5'r'C. ~ q n .11. per weeI&1 i { 1+15"2.'-'1/ /~ I )( . ~O I . " ! t If' 12. 2 .38 i ~ ; \ i. ,~ X 52 = $ 41,1:14.. c)tI. per year. (early wage $ L/1,l.lY.~"':' 12 = $ 3,971.00per month. MXlMUM. mNTHLY BENEFITS CAI.CUI.ATION Gross Monthly Income Less Applicable Deduction Adjusted Monthly Net Less Monthly \oX:: Benefit (If applicable) Monthly Benefit Rate $ $ $ $ $ ~I 81.(,.,0 or **$ ). 5"00 , , i I ',' I I ': 1 . , t I -~ ! ~: i **Benefit Maximum .Per Policy. -" Disability began {.19.QQ (. i :~, ; :; i Payment begins ). .1~ . "1q (Income loss does not begin until 5 work days have been lost after the date of accident on PA FPB claims only.) COM1ENTS : /. ,;;t;.qq-::(.;:).)'.qq :2 . ~ ~ . c,q - 5.,2(". CZCj 3. J. 7 - crCj - ;) 31 . qq ~ l\. I . Cl0 ~"r-L ", 1 d.. <;00 , = if ;;(,'5"""00 , '1cl':'i-lS :: '1,'.;11, 3.;l,"t 1"3.30 (- 3 -]1 , ::. t:t. J Z2 . :!'t\x I...( ! If<6<1,5:1. c:;,~eAS0 1></ flY !q4 Completed By: ~.L"~ IA.Jon,>o^ EXHIBIT "c" Date - 1 -I" ~-~ " . RECORD OF PAYMENT MOD 21 ' CLAIMANT: CHARLES LEESE CLAIM NUMBER: PAE 042 62 09 (86) DATE OF LOSS: 01/17/1999 COVERAGE: IO,()tJ~ WAGE: 2..5' (5 0 INITIAL RESERVE (1 ,000 ) 50 DREXEL PL FOXLEA NEW CUMBERLAND PA 17070 (717) 774-1245. 112A Ii Wz"-S"h-tJC Jc..SC'Y""l rn.. ~\\^~'<-- (in\ ATIORNEY: -sk )<>'D ?6t>N. "V\.eIc;;:{. 'J TYPE OF LOSS (p.'!: ) t'~ fA 2..:)\(-1&5""1 ADDRESS: PHONE: 5 ::>", . \'\0 '-- AMOUNT PAID PERIOD COVERED TOTAL RESERVE DATE MEDICAL WAGES OTHER PAYEE FROM THRU WEEKS TOTAL REMAINING ;l J~:J 19t.<;J -" r lot", f)J? --f:) 0 ~ 0 I> ~ -'0 ~ A-.J . q - j I .~9 , 0 ..of> o A Jd. Q ~d1lD f4v ~ IV 1-) D "Vl , - <;,.qq,t' s: Y'i"i.5".). CI~p 1.~S".9'l 3.3(.Q'1 gLI ~'1 .C; J -0- OM-53 I (1.88) _i. i- " ,-' "0 . , , . V~5 . c{1~ RECORD OF PAYMENT MOD 21 CLAll4ANT: Charles Leese 50 Drexel PI Foxlea ADDRESS; New Cumberland PA 17070 717 774-1245 717 238-1657 CLAIM NUMBER: PAE 0426209 (86) PHONE: DATE OF LOSS: 1/17/99 COVERAGE: \ 6, (, (l 0 WAGE: 2.)" /c;6 Jason M Weinstock ATIORNl!Y: Ste 100, 800 N 2nd St TYPE OF LOSS (PM ) Harrisburg PA 17102 INITIAL RESERVE ( 1000) AMOUNT PAID PERIOD COVERED TOTAL RESERVE DATE MEDICAL WAGES OTHER PAYEE FROM THRU WEEKS TOTAL REMAINING 1/~J:- CJr;.A IJ ""~':.;l. I Sw"<1 . 1ft'l1'l9 I~t,fn ,>>t/./J..J, 77558' 1/~ o'~o 3\ ,SLj ::;""'0 Y/r-:,I'l1 ,,)55.9(, 14-'*. D'i - - -- - - I I- T't.'l.A_,'11 {L22\ I l j .. e ~ 04/19/99 Bill Control # Claimant Cntrl # Date of Injury Adjuster Name Keyer Initials Service Date From: Class . Provider Name Provider Address DIAGNOSES; 1) B460 2) 7213 ", DATE OF SERVICE . PART B EXPLANATION OF BENEFITS 300B6700-1/WC 942 01/17/99 86 JE 01/19/99 99 , ,1_. "'. , ~ I Claimant Claim # Customer No. Policy No. Provider No. Tax ID Service Date Thru: LEEC011799 PAE0426209 23-2936551B 03/16/99 ORTHO SURGEONS OF CEN PA 2800 GREEN ST HARRISBURG PA 17110 Claimant Name Claimant Address CHARLES LEESE 50 DREXEL PL FOXLEA NEW CUMBERLAND PA 17070 SPRAIN LUMBOSACRAL LUMBOSACRAt. SPONDYLOSIS 3) 7242 4) 7244 TYPE OF SERVICE MODIFIER AMOUNT BILLED ' PROCED CODE REDUCTION UNITS 01/19/99 99203 1.000 80.0Q 0.00 OFFICE OR OTHER OUTPATIENT VISIT FOR THE EVALUATIO 01/19/99 72100 1.000 70.00 -32.61 RADIOLOGIC EXAMINATION, SPINE, LUMBOSACRAL; 02/02/99 99212 1.000 45.00 -13.46 OFFICE OR OTHER OUTPATIENT VISIT FOR THE EVALUATIO 02/16/99 99213 1.000 60.00 -16.05 OFFICE OR OTHER OUTPATIENT VISIT FOR THE EVALUATIO 03/16/99 99212 1.000 45.00 -13.46 OFFICE OR OTHER OUTPATIENT VISIT FOR THE EVALUATIO ***Total*** 300.00 -75.58 1> 1> 1> LUMBAGO LUMBOSACRAL NEURITIS NOS ELIGIBLE AMOUNT REASON CODE 80.00 37.39 31.54 43.95 31.54 224.42 ] TOTAL RECOMMENDED AMT 224.42 [ Questions regarding this review should be directed to: DONEGAL MUTUAL INSURANCE P.O. BOX 302 MARIETTA PA 17547 THIS ANALYSIS HAS BEEN PREPARED ACCORDING TO ACT 6 OF 1990, SECTION 1797(a) AS SIGNED INTO THE PENNSYLVANIA LAW ON FE8RUARY 7, 1990. THE ELIGIBLE AMOUNT REFLECTS 110% OF THE MEDICARE PAYMENT OR PAYMENTS CALCULATED AT 80% OF CUSTOMARY CHARGES EIN: Phone #: Fax II: 23-1336198 717-426-1931 717-426-7023 1> , , 04/26/99 Bi II Control # Claimant Cntrl # Date of Injury Adjuster Name Keyer lnitials Service ~ate From: Class Provider Name Provider Address DlAGNOSES: 1) 846 2) 7213 DATE OF SERVICE L J" , , ,-. , , i , PART 8 EXPLANATION OF 8ENEFITS 3oo867DO-l/WC A 942 01/17/99 86 JE 04/13/99 99 Claimant Claim # Customer No. Policy No. Provider No. Tax 1D Service Date Thru: LEEC011799 PAE0426209 23-2936551 04/13/99 ORTHO SURGEONS OF CEN PA 2800 GREEN STREET HARRISBURG PA 17110 Claimant Name Claimant Address CHARLES LEESE 50 DREXEL PL FOXLEA NEW CUM8ERLAND PA 17070 SPRAIN SACROILIAC REGION* LUMBOSACRAL SPONDYLOSIS 3) 7242 4) 7244 LUMBAGO LUMBOSACRAL NEURITIS NOS TYPE OF SERVICE MODIFIER ELIGIBLE AMOUNT REASON CODE PROCED CODE AMOUNT BILLED REDUCTION UNITS 04/13/99 99212 1.000 45.00 -13.46 OFFICE OR OTHER OUTPATIENT VISIT FOR THE EVALUATIO ***Total*** 45.00, -13.46 31.54 31.54 J TOTAL RECOMMENDED AMT 31.54 [ THIS ANALYSIS HAS BEEN PREPARED ACCORDING TO ACT 6 OF 1990, SECTION 1797(s) AS SIGNED INTO THE PENNSYLVANIA LAW ON FEBRUARY 7, 1990. THE ELIGI8LE AMOUNT REFLECTS 110% OF THE MEDICARE PAYMENT OR PAYMENTS CALCULATED AT 80% OF CUSTOMARY CHARGES Questions regarding this review should be directed to: DONEGAL MUTUAL INSURANCE P.O. BOX 302 MARIETTA PA 17547 ElN: Phone #: Fax #: 23-1336198 717-426--1931 717-426--7023 ~ ~ . . I. (. DONEGAL COMPANIES 1195 RIVER ROAD P.O. BOX 302 MARIETTA, PENNSYLVANIA 17547.0302 (717) 426.1931 April 16, 1999 Jason Weinstock Esquire Law Offices Ira H Weinstock 800 N Second. St Ste 100 Harrisburg P A 17102 RE: Your Client: Our Claim No. Our 1 nsured: DIL: Charles Leese P AE 042 62 09 (86) Charles and Marie Leese January 17, 1999 Dear Mr. Weinstock: This letter is in regards to the claim we are handling for Charles Leese. At this time, we will be covering Mr. Leese's claim under his First Party Benefits coverage. lfthere is a favorable decision made in the workers' compensation claim, we will subrogate the workers' compensation carrier for the amount paid out by Donegal. The following information is still needed to consider Mr. Leese's wage loss claim: 1. The enclosed Disability Statement must be completed by his doctor for February II, 1999 through? . 2. Written clarification from the employer as to the actual days Mr. Leese normally worked and how many days per week he worked. I thank you for your help in this matter. lfyou have any questions, please contact the undersigned. Very truly yours, DONEGAL COMPANIES KERRI A. WEAVER, AlC Claim Representative KA WIgmk Enclosure cc: Acordia Northeast Inc #4255 Mechan icsburg P A 17055 Charles and Marie Leese 50 Drexel Place Foxlea New Cumberland PA 17070 In accordance with Pennsvlvania Act 165. the followine. notice is being provided: Any person who knowingly and with intent to deltaud any insurance company or other person tiles an application for insurance or statement of claim containing any materially false infbnnation or conceals tor the purpose of misleading. intormation concerning any tlle! material thereto commits a fraudulent insurance act. which is a crime and subjects slIch person to criminal and civil penalties. EXHIBIT "0" , i, . , " , . DONEGAL COMPANIES 1195 RIVER ROAD P.O. BOX 302 MARIETTA, PENNSYLVANIA 17547.0302 (717) 426.1931 October 29, 1999 Ira H Weinstock Esquire 800 N 2nd St Ste 100 Harrisburg P A 17102 RE: Our Claim No.: Our Insured: OIL: Claimant: PAE 042 62 09 (86) Charles and Marie Leese January 17, 1999 Charles Leese I'df..\D pu pM ~D..r{ f- 9lo.,lO 13/ 1~{f9 ~N~ Se>i~ Dear Mr. Weinstock: This letter is in regards to the First Party Benefits claim we handled for Charles Leese related to an auto accident on January J 7, 1999. Gallagher Bassett Services, Inq., has confirmed that they went into a full Compromiseand Release with Mr. Leese. Therefore, we are requesting reimbursement in the amount of $5,745.48 representing the amount we have paid to Mr. Leese for wage loss and medical bills. Please have Mr. Leese forward a check to this office within thirty (30) days. I thank you for your anticipated cooperation in this matter. If you have any questions, please contact the undersigned. Very truly yours, DONEGAL COMPANIES r (r)) [g Yl ~~.~ If U KERRI A. WEAVER, AIC, Claim Representative KA W/gmk cc: Acordia ofPA Inc #4255 Mechanicsburg PA 17055 Charles and Marie Leese 50 Drexel Place F oxlea New Cumberland P A 17070 AUn Pat Wilson Gallagher Bassett Serv ices 8 Flowers Dr Mechanicsburg PA 17055 Claim No.: 001033-008819-WC-Ol In lu'cordance with Pennsvlvania Act 165. the following: notice is being: orovided: Any person who knowingly and with inlent to defraud any insurance company or other person tiles an application for insurance or statement of claim containing any materially false infonnation or conceals for the purpose of misleading. infbmlation concerning any fact material thereto commits a fraudulent insurance act which is a crime and subjects slIch person to criminal and civil penalties. ~:" , " . ' , ~ , " DONEGAL COMPANIES Ira H Weinstock Esquire 800 N 2nd St Ste 100 Harrisburg PA 17102 1195 RIVER ROAD P.O. BOX 302 MARIETTA, PENNSYLVANIA 17547.0302 (717) 426.1931 Decemb95lgerh'??e~ 21, 1999 SECOND REOUEST RE: Our Claim No.: Our Insured: D/L: Claimant: P AE 042 62 09 (86) Charles and Marie Leese January 17, ] 999 Charles Leese Dear Mr. Weinstock: This letter is in regards to the First Party Benefits claim we handled for Charles Leese related to an auto accident on January 17, 1999. Gallagher Bassett Services, Inc., ,has confirmed that they went into a full Compromise and Release with Mr. Leese. Therefore, we are requesting reimbursement in the amount of $5,745.48 representing the amount we have paid to Mr. Leese for wage loss and medical bills. Please have Mr. Leese forward a check to this office within thirty (30) days. ] thank you for your anticipated cooperation in this matter. If you have any questions, please contact the undersigned. Very truly yours, DONEGAL COMPANIES _..... ,.---..':....... ""7 tur'\( SEAN P. HANNA, Claim Representative SPH/gmk cc: Acordia of P A Inc #4255 Mechanicsburg PA 17055 Charles and Marie Leese 50 Drexel Place Foxlea New Cumberland P A 17070 Attn Pat Wilson Gallagher Bassett Services 8 Flowers Dr Mechanicsburg PA 17055 Claim No.: 001033-008819-WC-Ol In accordance'with Pennsylvania Act 165. the followine: notice is beine: provided: Any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false infonnation or conceals tor the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties. ,..,~j~ ~ '0 _i 1f1' , , , , , , DONEGAL COMPANIES 1195 RIVER ROAD P.O. BOX 302 MARIETTA, PENNSYLVANIA 17547.0302 (717) 426.1931 June 30, 1999 Attn Pat Wilson Gallagher Bassett Services 8 Flowers Dr Mechanicsburg P A 17055 RE: Your Claim No.: Our Claim No.: Our Insured: D/L: Claimant: 001033-008819-WC-OI PAE 042 62 09 (86) Charles and Marie Leese January 17, 1999 Charles Leese Dear Mr. Wilson: This letter is in regards to the above workers' compensation claim that you are handling for Charles Leese. We are currently handling Mr. Leese's file under his First Party Benefits coverage with Donegal Mutual Insurance Company. We were advised that there was a hearing on April 27, 1999. Please advise us of the decision when you receive it. Please also advise us if any settlement is reached. I thank you for your anticipated cooperation in this matter. If you have any questions, please contact the undersigned. Very truly yours, DONEGAL COMPANIES KERRI A. WEAVER, AIC Claim Representative KA W/gmk cc: Acordia of Pennsylvania lnc #4255 Mechanicsburg PA 17055 In accordance with Pennsvlvania I'd 165, the rollowine: notice is heiR!! provided: Any person who knowingly and with intent to defraud any insurance company or other persoll files un application for insurance or statement of claim containing any mllterilllly talse inlormation or conceals ft}r the purpose of misleading. infi)mlillion cOlH;~ming ;lJlY fact maleriullhcreto commils a fraudulent insurance ad. which is a crime and su~iect., such person to crimilllll and civil penalties. EXHIBIT "E" ,~' ,"_l: ""","""~~....,' !, . l , , DONEGAL COMPANIES 1195 RIVER ROAD P.O. BOX 302 MARIETTA, PENNSYLVANIA 17547.0302 (717) 426.1931 August 17, 1999 Attn Pat Wilson Gallagher Bassett Services 8 Flowers Dr Mechanicsburg PA 17055 RE: Your Claim No.: Our Claim No.: . Our Insured: OIL: Claimant: 001033-0088 I 9- WC-O 1 PAE 042 62 09 (86) Charles and Marie Leese January 17, 1999 Charles Leese Dear Mr. Wilson: This letter is in regards to the workers' compensation claim that we are handling for Charles Leese. As you are aware, we are currently handling Mr. Leese's file under his First Party Benefits coverage with Donegal Mutual Insurance Company. Please advise us as to whether or not a decision has been rendered on this case. 1 thank you for . your help in this matter. Very truly yours, DONEGAL COMPANIES .......--...... .".... /? 1~ (t.-;;;) \ \;j ''\{ ~\.~/) \ <:.:->' d ,~. KERRI A. WEAVER, AIC Claim Representative KA Wlgmk cc: Acardia of Pennsylvania Inc #4255 Mechanicsburg PA 17055 Ira H Weinstock Esquire 800 N 2"" St Ste 100 Harrisburg P A 17102 III aCCOnJalll'c with Pennsvlvania Act 165. the followin2 notice is bcine provided: ^ny person who knowingly and with intt:nl to dclrnud any insllranct: company or otlu:r person files all application for insurance or statement of claim containing any materially tills\: infomlatioll or cnncenls lix the purpose of misleading. inlilrmation concerning any rael material thereto commits a Jral.ldult;nt imuram:e act whiLh is a crime ant! sll~iects such person 10 criminal and civil penalties. ~.~ ., " J~- , , , , , " September 28, 1999 PAT WILSON GALLAGHER BASSETT SERVICES 8 FLOWERS DR MECHANICSBURG PA 17055 RE: Our Claim No: Our Insured: D/L: Your Claim No: Claimant: PAE 042 62 09 (86) Charles & Marie Leese 01/17/99 001033-008819-WC-OI Charles Leese Dear Ms. Wilson: I am the adjuster now assigned to handle the above-captioned First Party Benefits claim. It is our understanding that Mr. Leese's workers' compensation claim is currently in litigation. As you are aware, we have handled the medical bills under Mr.. Leese's First Party Benefits. Once there has been resolution to your litigation, please inform us of the outcome. Thank you for your consideration in this matter. Should you have any questions, please feel free to contact me. Very truly yours, DONEGAL COMPANIES Sa/4 fl. ~ Claim Department ~" , ' I; _~< 'M-M III MAY-25-00 tHU '2:19 PM IRA H WEINSTOCK P C , " FAX NO 7172386691 , , P.' 7 COMMONweALTH OF PENNSYLVANIA DEPAR~ENT QF LABOR AND INtIUS1"RV IlUREAU 01' lMlRKERS' COMPENSA110N '171 S. CA.\'IERCN STREEr. ROOM '03 "ARRISBURG PA 17104-250' !TOL L FREE; 8D0-482-2U3 COMPROMISE AND RELEAse AGREEMENT BY STIPULATION PURSUANT TO SECTION 449 OF THE WORKERS' COMPENSATION ACT Social Security Numb"r; _.~ _2!.._ __::;lll_ Date of Injury: -E2...J~ I QQq "'_ ... '" ~ \ PA BV'vC Claim Number: 2036225 . __~ [ KNO\'l;N} / ,- employee r-r"", NM\e , CHARLES . Slhratl : 50 DREXEL PLACE i-;.t.~~ , I i ~'rWCUMBERLA~ , j CCU'lty I CUMOElU.AND t~~ Employer ~ ' _----.-.------~ ROADWAY EXPRESS, INC. i'Oo'll.OADWA Y DRiVE -..------- ...... ._~ --_...-- ~~ 17~s'"f" -- $tabt Z1~Cod. P A 17070 ~lSLE '&j~n~ERLAND T_ <all T_ 1'0 'l'HE PARTI": DO NOT SUBMIT THIS AGREEMENT TO THE 8UREAU. SUBMIT IT TO rilE ASSIGNED WORKERS' COMPENSATION JUOGE. ~;:::-..-..~-- '. Insuter 'or ThIrd Pllrly Administrator (If s$lf"'IIlJLlrall) _...._--~,- , .....-, ~ tenI '_: GALLAGH.ER BASSETT SERVICES ---- Sffll1 : 8"LOWERSDRlVE~ '-_-1--._- -- - . ...---.......------ 1'mC 518'.11 ~~ HANICSBURG J'A 170 . , -r-., _0>:10 0293 M,;,. ....--.......-- ., -- ClalmNlltnbet filii OOI033.0081119.WC.OI -~-, .....-""::...-............. 1. This is an agl'$QMent in the caSa of the above listed employee and the aboVe listed employer, insurer, or third party administrator in reg.uos to an injury or occupational disease. 2. This IS an injury claim. The injury occurred on....Q!...j..J2...J. 1999 MM "" """'" -OR- This is an occupational disease claim. The last exposure to the hazard causing the dl$&$s& was .J:!!Lt~ , and the first date of dIsability related 10 this disease was __1.._.1_____. MM 00 'f'f'(V Wfltl V'f>I't 3. Tho employee's average weekly wage as of....Q!...j~ 1999 was $ 1000.00 M,. DO ..,..,.,.,. Thll oompllMalion ralo for lotal disability is $ 588.00 (Attach wage data and cover sheet demonstrating ~uI:!IlklJ\$ performed under Section 309.) . 4. 1'I1e nalure of the in/'ury and all bodilY. parts affected by the injury are as follows (inclUde alt medical diagnosis. If any form of menta or psychologicalmjufY is involvea, the preferred method is to specify all diagl10ses from all axes based upon the most recently published version of the Diagnostic and Statistical Manual): ~BOSACRA~ SPRAIN ___.___~_~~____._ -_...._._.......-~-- -~"".-~,---- ....---------.......1-.---- ~-_..................--...- - ~~ ......--........----- (OVER) \.IAC,7~~ REv l~.~T EXHIBIT "F" ,'ll'~ ... ~ ""~, ....... ~ MAY-25-00 'rllu .2: 19 PM IRA H WEINSTOCK P C , " FAX NO. 7172386691 ., , p, 8 ~.IeQom ---' III 'I _*t ~ . r- 5. Does this claim arise out of the death of an employee? 0 Yes IXI No information: If Yes, Ihen provide Ihe folklwlng a. Dale of death: _-..1---1 MIA oc mY 0. Name al1(/ addfe$s of the widow or widower (include any maiden names, aliases and names upon remarf1age. if applicable): --- .,.... ~..-_.........- -"--"-_._~-... -~-" _.......-..............-.-....-,..................-...-.....~---- - c; Names, addresses and dates of birth of all children: ......_..........~..., ", -~, .......,- -.---.......-........ .-- --~-----~ d. If il is c;laimed thalth... dependency of anY.chlld continues beyond the age of eighteen (18) yoars, lt1antifythat child and state SPecifically the factual basis for this Claim: ~-_._..._---- ~'-"""'- I>o..~, __.....__~L............____ -..................,---......, ---. -- e. Slate the name, address and relationship to the employee of any otller person claiming to bill\! dependent, together with a brief summary of the factual basis for this claim: . ~~.......----.-.---.-....- ------........---- ---------- ,,-,- __w....._,......_............... -- 6. Slate whether the dil;llbmty related to the conditions described in Paragraph 4 1$ total or pal'lla1. If p~ <llb~th tot;ll and pert/al disability are claimed, identify by dates the beginning and ending periOd r)f each llooh .pSIfOd. As to pllrtial, please !State the degree of disability expressed as iii caleulation under Section 306(b) of the PennsylYiania Workers' Compensation Act: ~O BENEFITS PAID TO DATE. ............'........~ --------..............-.-. "".-- ..................................-- ......-... "('0'__" _...........--........_-~ .........--..........--...... . - -~ -.. -,.. .......-....-......'-.- ~ ~_...............- ~_..................--- -............-.---........----... ,-.-.-- - " , '. c _ ~_ i,_,j, .l~......._" MAY-2.5-DD 'fHU' 2: 20 PM j It I IRA H WEINSTOCK P C FAX NO. 7172386691 , , , , p. 9 I -- ,'~Q.7$~ ~~........... 7 State tile amount of weekly aompensation paid, or due and unpaid, to the emplOyes (l)r to eacl'l dependl!inl iden- lified in Paragraph 5( above) up to the date of this agreement. (Attach copies of any Notic<J" of CompfJf1!salion Payable, Agroenlents for CompensatiOIl. Final Receipts, Supplemental Agreement$, and Statements of'Account prepared and ex~t~ in connection with the claim prior to the date of this agreement The summary of past pay_ r71ent!l should itemize: the weeks for which compensation has been paid, the rate at whicl'l compen!lalion was paid !;:;r each such w~k, and the total amount of payments to date.): 'X)~E PAID TO DATE --...............................-,.--.. T __.................... ,_~"'...___..........._ .....--_-,----...~ ...D_........._.---....-.-..______ ~-~-----......_.......'.... -...........,.,.~..............._...............- ,,- , ..,,,.--- -- a. State the amount, "",ture and duratlon"ofweekly qompensation benefits to Ilepaid to the emploYll$.(!I)I' ~ dependent ldentifled.i in Paragraph 5 ab9ve) on .and after the da~ of this agree\T1ent. (As to each p~ 'RKij>>- ant, specitythe n.umber of weeks alid d.ates for which such benE>fit$ are to be paid, the benefit rate,for each such week. and the total 311Jount to be paid.): . 1 HE CAR.RlER SJlAL\. MAKE A SlNGLELUMP.~I,JMPA YMENT IN THE AMOUNT OF $8, 076.00. iN. ' i.'ONSIDERA TION, T!iJBCI"A1MANT COWRQMISESAND RELEA/iES mSCLAlMFOR ANY OTHER .ACC!UiEOOR i l'Tl!RE WAGE LOSS nloNEFITS ARISING FROM HIS EMPLOYMENT WITH ROADWAY EXPRESS. !NC. - .....................---"".............. --.-....---- ,~...................---..., ----.-- ...~ -- ............-"'. ~-~ ...------- --_.._~....- 9. Summarize all of themedioaJ benefits Ilaid. or due and unpaid, to or on behalf ofthe employee lor each dlil$len- dent identified in Paragreph 5 above) IJp to the date of this allreemenl (Specify the names and addrElS"" of all providers, type of carerendered,datesdf treatment, total amount paid, and ilmoonts remalnlngunp$;li jf 81'1\I of Ihls trealment is or has been the subje!'! of utilization review or fee review proceedings, summarize the lltatus of those proceedings and attach coplas of all filings and determinatkms.):, mE EMf'LOYER WiLl. BE kESPONSIB~E FOR REIMBURSING THE CLAIMANT OR TIlE HEALTH AND wtLfAlU! ,'l."~D FOR ANY TREATMENT RENDERED DUE TO TIlE LUMBOSACRAL. SPRAIN BETWEEN l'17il999 AND "':T99. ----..........---.---.. -----~---------._-- .__...__._-~-- --- ~----_....._-,-..... .---...--------........- ....-""'.....................- ....-...........-...,.........- , --..,...- -~_____,....__. I. -..~~ -..~- --....-0:--.......- -...-.-.....- -...~- ---""- l__ _.........~..-..........."---_.. "'"". I."" -~- _.~_..~.... -....__._~- ..... ......-...........- .~......--_..............,~...--,---....,,- ._--....~_.,..-- _..........._--,,--~-........... ............-..........-...--............ --...~.........,........--.-...._._............ -----.......-..-.........---... --- (OVER) MAY-25-UO'TRU' 2:21 PM , , ' -'~ . '-"'''''~~'1~1~4w1 ! .of J FAX NO. . . flo IRA H WEINSTOCK P C 7172386691 . , tlllC.7!6 I I :,,~ ~ ~"'J 10, ::.ummaitte ...11 benefits to be paid on and after the date of this agreement for rlil!lsonable and necessary medical Ireatment causally related to the injury. (Specify the names and addresses of an providers currenUy known. types cf care to be rendered, and (if currently known), anticipated dates of treatment and total amount(s) to be paid. If arty of this treatment is or has been the subject of utiliz:ation review or fee review proceedings, Gumm..rt!':e the sta- tu" of those proceedings and attach copies of all filings and determinations.): rm: I.U~f' SUM PA YMENT IS ALSO CONSIDERATION FOR THE CLAIMANT'S COMPROMISE AND RELEASE TO !.!.!2 H IGHT""fO"A'FlV ADD! BONAL MEDICAL TREATMENT PROVIDED ON OR AFTER 7121199. --.- "...,~,....- 1, ~~r-""" ....--...- ~ 1 is there a lien or potenliallien for SUbrogation under Section 319? 0 Y~5 iZI No If there is a lien. :hen attach a fuUy,executed'Third Party Selt/ement Agreement, demonstrating the total amount of credit to be allowed and the fOl'lT1ula by Which credit will be taken: ___-...___..............___,........w....o..w. ...............-----........-. --.......--..- -- ,...-- ---~ ...-----.....-......-.-----.. ........'------~ .........---........- -........------...........-.......-..- 12. Are there any current child or spousal support orders in place against the claimant? C Va :zJ No If Yes, piease explain: --....-..-.......- -.-..-...........-, ..............----,- -~--- ... . -...--...............------ "--.....-...-...,.....................- --- .....-..-..--- ,,--- -- ':3 ihe following benefits are being received by or are available to the elalmant: Nature of aene~ts SOCIal Security Retirement Social SecurIty Disability MedlC<lre Disability ",,,,,,sian Retirement Pension Public Assislance (Cash) PulJUc AMlstance (Medical) Private Oisability Benefits Private Heatth Insurance Unemployment Compensation Other Amount and Period Ofpayment of AAOOfifs Rec<>ivM Available Benefits are: 'Amount and Period of P'lllIliMI nf 8arnltiIs._ St.&tvsCI E!iQlllility ~i.!l.llliQ.!'J ,.-.-..... _.......".",,- x ....-..._-- --- -.,....-...,.............,.- ~~...~... -.....-..............- ..--- --...". ---,..........--- ...,............--..---.- ........--"""'.-- q......--.....~-- Te$linlOny at hearin!! 14. Check as appropriate: ~:: A vocational evaluation of the employee was completed on _.I.......J___ by __....___.___ A copy of this rapon is attached hereto. MM DO YYYY -OR E A vocational evaluation of the employee has been waived by mutual agreeme"l of lha parties_ L"_,~_ , '''''''''''~ ,I "' ~, MAY-25-DO "TnU ' 2:22 PM , . , , , . , . P. 11 IRA H WEINSTOCK P C FAX NO. 7172386691 <IIIC-!&6 ,-tJl'ffi" ~ r 15. Slale tl'Je iSlSu$s inVQlvEld in this claim: I,vHF111ER INJURY OCCURRED AS ALLEGED IN CLAIM PETlTlON. -.IlIIl!llMl W1l'1ll" "....~ ----.............,.--.... .-._---- ~..._- .-.-..----'_--... 'r"., ~ ----- .......----~-- ~" ...,-......................----.......... II ,.__-....- ............--------..:.----....-..........." , ----..-.'" - _...~~----~--~-"'-..... ----- --- --............-...-......... ,.----- ... ......-.........-.-.....-.....'........ ___._v-__ ----.~~_....-... ...............-.----- 16. $tatll 't/1l\!. l'I'laSons why; the Plilrlies ere entering into this agreement: Pll.UJ)lElIj'f /U:iSOLUTIQ~ OF OISPUTED CLAIM. . . . . FURTHI;IM.!l!1Ol'!I TIje'Ii:lS1JANGE,QI: AN INTERIM QRPER GRAN~G TI-iE m&WROr,u~E ANbR:Et:EAslf~~ TO THE Jil'!RMS afT,,!!! STII!U1,J\.1/ION, EACH PARTY;W AlVES i'fS'STA T\'lTaR,Y RlllflTOF APPMI.... IN R.!!t>IA!l(~ 'fIiE CARRIE.R SllALC'MAKE THE NECESSARY PAYMENTS PRIaRTO THE EXPIRATION OF TliAT APpEAL l>ERJ15o. , . , -.......--------....,.......- j ~ --~--~-----,-- .........-_-~--- ~1 '- .......--~_... _......--...--_...__.....~....._- --..........-......-. -- ..........._---- .. r...:......_... .".....----.....------ .,...--......................-...-- ---.....--..........,...----"""---~_.., ----- iT"Th'efeeaij-;emantbatweenclaimant and counsel must be attached: ,\ nORNEYS,FEI!S IN TlIEAMO\mT o.F $1;.61$.00 (JWENTV ~t:RC~T)SI:lALLaE DJlDUCTED F~Q!'illHE qJMP S!,JM . ...ND SI{ALL BE PAID DlRECTL Y Ta IRA Hi WEINSTaCK, P.C. ---- ,'........_-,-- ._......,.~.._-- __~_........._h____ -...-- ~...._- -----...- ,...- . .... _._~......~-- ,..~.................--a_.........._.......~....._......... w.'\_~_ .-- ----- -~-~,- , -...-----................- --...--..................--- -...---.................................... --~... ~.....,.._....__....... , ..w ---'........-....~~- , ........._-j ...............,.'1"_...._..___ ,...----_......--.......~- -_.....------- .......--------""'..- .........-_---..-~._..._'-"" 18. employer shall be responsible for the following litigation costs: ~ ~.. -_.........,......_-~.""---- -,.....,..-...-. ~"'_...........-- .-...,...---"- _.~~-.................--.......-- -- -_..~- ~ +- ..........- ----.........--- , _.,..______...............1 ..'........~1....._.'....__. -----.-..-.--...;.-..-----. r~"""""'__~_____"" -- --- ..._.....--,~ -............--......-.....-'" ~_.........~_......1 _...........----....-" ---. --......-.. ........._...-.........- '.. " ___"'. .................-..-.................-..----......-.- (OVER) I; ."".:o~~, ~AY-25-00'1~U' 2:22 PM J jJt. J .. IRA H WEINSTOCK P C FAX NO, 7172386691 , . , P,'12 , U1lIl-7511 ~ _lIAI~~~ ~- 1,J1 /I Y II. T_1f W- -''ll r.... EMPLOYEE'S CERTIFICATION 1 I cerofy that I have read this entire agreement and understand all of Its contents. 2, I agr"e that in eXchange for the payment of the benefits clescribed in thiS agreement my employer, its'wOrkers' compensation insurer, and its third party administrator are completely released from any liability for any other oenelits under the Penn$ylvania Workers' Compensation Act on the account of the injury which i$ tile Subject of thili agreement. :3 I understand that by entering into this agreement, I will receive for this injury only the workers' CDmP!llMSilliOn wage loss and medical benefits which are $pecifically described in this agreement, I underStand that. ifUlilirl!gre&- ment is approv&ll by a Workero' Compem;ation Judge, I will not be entitled to any addltlonal workers' QQJll'wns&+ tlon benefits of any kind as the result of this injury, and that agreeing to this Compromise and Release eanstitl.ltes e waIVer of my future rights under the Pennsylvania Workers' Compensation Act. 4. Except for the benefits listed in this agreement. I have been offered nothing of value III convince me to $l{<n this agreement, $. I have been repro:sented by an atto,mey of my own chO?Slng during thi~ csse. M~ attomEjy ,has fllIliJal~ tq lmt the content of thiS agreement and its effecls upon my ngl1ts.--::. L..- ,(Employees Inlllalis) , " OR ! have not been represented by an attomey of my own choosing. However. I h~ve been told that I hay. lhlll right to be represented by an attorney of my own choosing,.in this proceeding. I have made my own decisiOll /lOtto ~ave an attorney represent me. (Employee's InitialS) . 5. I undeniltand that this agreement Is a compromise and release of a disputed claim, llnd is not to l>> conllildOMd an admission of liabmty for compensation on the part of any pelSOn or entity. including but not limilfId 10, my ~yer, its workars' compensation insurer, and any thin:! party administrator, exceptto the extent of the ~ as provide(! for above. ~~.. ""'"" ,_ J.~"J' ":". 00 NOT SIGN THIS DOCUMENT UNLESS YOU UNDERSTAND 1HE FULL LEGAL S1GNlFlCAN~ OF THIS ~E"'ENT. -.......-UIr" All partip&, have read this agreement al'ld agree to its oontElntsc We undemtand \tJaIiInder this agreement, alIPeIltiOnll :;:ol~~ I 22 I 1999 ',' .~v-("'" .~."'.,...~ ..' .. -;- MIll 00 yyyy . .' L~'~.:~/!: '~-;.;r~;Z . ~""WJIlli~-"'-""""""'- ...-~' . - -.:r"- ,..;';:':?~~:"';:,- >/' J . ...~ -" _" . ,...,J).I:2t MHIRO Nl , ~"-' - / /,' . 4~"....p , : .._'llT~i'.. ,;. EMP"mE URcRfl'I11~a;V~i5i,1iNi~"~' '1".' . ---. , ",''-''. ii not witriessed above, this agreement must be nouirized ~s fcill~s/-'" - ; w_,,_ .lw~_l /.. '..i .f!/.<"..>:'; {.(.( ....,.........0 .~- ......,.-.'" I r (..(. .- 'MTllESS ') , .' JY.1 ' ,I; lI. . ~ .~. J I' -r)t....vc:.'--- ....~ ,i :/ " :; EMPL ~~r.r.v--:--m>1~:="'_.....1. .. AFFIDAVIT: SElf OM ole, th$ undersigned Notary R"ubllc, in and for the aforesaid County and Stata, personally appellred ,...:~~_~ who being first duly swom, does depose and slate that .he/she kooYl$ "(tit has ~atlsfactorily proven to be) the individual identified as the employee in the foregoing compromise and relf1ase ag~ n"lent; and that he/she has executed the foregOing compromise and release agreement for the:purp06lls statelt hetem. "'--~"""""'--'.'NCifArtV PUQUC THE COMPROMISE AND RELEASEiAGREEMENT IS NOT VALID AND BINDING uNLESS APPROVeOBY A W-QRKe~S' COMPENSATION JUDGE IN A oeCISION. ' Any individual filing misleading or incomplete inform~tiQn knowingly and with ~tallt to oof,naud 1$ in vIoratltm ot Section 11 Oa of tha Pennsylvania Wor1<ers' Compensation Aa and may all:lO be subJett to crlrnlnal and eM! penaltles through Pennsylvania A\ll165. ' )' ,_' I . ..J-, _"i.l_ :'- , .i . - ~-,,, ., ''1:_ 11/28/2888 11:87 71 72431887 MDWO , ,.. l , PAGE 82/82 'W'^ . ". I . .. . << VERIFICATION Steven 1'. K1ipa, who is a Vice President. General Casualty Section Manager of Donegal Mutual Company and aclmowledges that ~ has the authority to execute this Verification in behalf ofDonegal Mutual Company certifies that the foregoing Complaint is based upon information which has been gathered by my cOWlSel in the preparation ofthc la.wsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent that the Complaint is based upon infonnation which I have given to my cOWlSel, it is lrne and correcl to the best of my knowledge. information and belief. To the extent that the content of the Complaint i8 that of counsel, I have relied upon counsel in making thi8 Verification. This statement and Verification are made subj ect to the penalties of18 Fa. C.s. Section 4904 relating to unsworn falsifica.tion to authorities, which provides that if I make knowingly false averments, I may be subject to criminal peualti.es. Donegal Mutual Company. s~/~ Vice President. General Casualty Section Manager F:\f'1LES\DATAPlLE'1J)QtIIBO,A t.,t)OC\I :s9.;om.l Jj~~llOl~j!~'il~i!lIIli;i\I!~"fu.~iIl:m~J}'~.Mi'l;*,"~ill:!~illil'MIi~lh..a!.~"""""""~ lJlIi' r' ~'-"'r-~'''"''''''~ ~ '"- ~~_b. ;JiblUjjijr': rt C> '\; "() --.. o ~ "1 ~ -<. ,"~<"',~, .~., . .II ,. , "^ ,~L, " ~ ,~" '" ."" "~,~,, .,. , f" , ~ ~~ f) ;;z:. ....,...:"'- r7~ r,-' ?//I;t f!6 s~(-) 5;;6 c::: <: =< -= , . ... . :::> -l:"- , , cS C:::.J "7 i;'') I :c..'-S . """ =:t; - - ^"^""-'~ f"',~ ''J'' f!1(~ [5jg- 67'( if '. ,-;;. ~ "7, :.~ o ~ J? "'- oil .J:;: -l: ~\ VI 9' d e ~ t r . ---- ,:...~ ~ DONEGAL MUTUAL COMPANY, Plaintiff vs. CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant . AND NOW, October /"" /') -' . ! j '-"'I '-'-'"~< ""~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478 CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT 2001, the appointment as arbitrator of David Perkins is vacated and Joseph Ruane is appointed in his stead. By the Court, TRUE COpy FROM RECORD In Testimony wheroof, I here untD set my hand !c1d the seal of said GiJUll <It Carlisle Pa fhls t)~~ay{} Ol~;;:;~~ ~t / Prothonotar f l,l _ ,,,",,,~ "', ",,-_ DONEGAL. MUl'UAL CCffl'ANY, Plaintiff : IS THE COURT OF COHMOH PLEAS OF .Cl.'MBERLAND COUNTY. PENNSYLVANIA' : v. : NO.200D-8478 CIVIL I' : CHARLES LEESE AND ROADWAY EXPRESS, INC., Defendants : : : . : : : PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE. tilE JUDGJi:S OF SAID COURT: Daniel K.Deardorff, Esauire . counsel for tbe plai.ntiff/illrt!~ 10 tbe above acti.on (~WY~). respectfully represents that: 1. The above""i:apt101ledaction ~ 1s (~ at issue. 2. The claim of tbe pla1nti.ff i.n t:be action i..s $ 5,745.48 The count:e.rclailll of the defendant in. tbe acti.on 15 0 The foll_1n& attomeys are i.nterest:ed in the caseCs) as counselor are otber- ",15e dbauali.fi.ed to sit as arb1trators: The law offices of MARTSON, DEARDORFF WILLIAMS & OTTO and Th~ law offices of IRA P. WF.TN~~K. P.c. WlltREFORE. your petit10ner prays your Honorable Court to appoint three (3) arb1trators to whom the case shall be submitt:ed. A.'fD NOW, ReSpectfull~~ ~ ~ ~ard;;~quire ORDER OF CotRT Attorneys for Plaintiff in consideration of the Esq., ..oPP(:/~ ,Esq., are appointed arbitrators in the Esq., and above-captioned action (or actlons) as prayed for. P. J. '" ,--~~ 1 - ~~ .~, "#"^,-, "P:-~ ,,,,"~.,,,, ' "'''' -.,,~ -,'<-#": '<:" ""':'11l': "',> ."",' >'\liJl Ut.~'llml\{T=&~j'm~"~,!,'J.~T~,tif-"1j6~~' I' . \,; ~.". 1<" ] t.' .' I. I.> 1-.... " -'..r_ ,", ",',:,'., ,j-" i ,"",' i\iT'\r' l"J'''--. -"'1' .-,,) . ',-''" " ), i'i:l., .._: ~,.r '"., '~'. Pl=~ll\iSYlVi\hlV\ . -" >- t.0 ~ ~ ~ ,,-, z .J ,- ::J<( LU~-:::~ M O~ r:t! cF. ~(~:,-~ ..'r_ (..J~ H~ :Y. c'-- D:3 .7>- & ~ & '0 " ;let) '=jz ~ eez L) LULU ~ ::;')0- C ::~ ::::> 0 0 '--", "1_'"""'" " _~",*~Wft'l,=-~ ""ftl~l~_ _~,' ._ _'i1if!fl<!l'I.ll-l","",'-lni'i;;j",*'j'l~~fjj~I%"*'i.lmi!",ir~~gm~~Il.l...., ..'W~'"' ,.~ .,,:1 ,../",:, DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2000-8478 CIVIL TERM CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant CIVIL ACTION - LAW NOTICE OF HEARING BY BOARD OF ARBITRATORS You are hereby notified that the undersigned Arbitrators appointed by the Court in the above-captioned matter will meet for the purpose of their appointment on Friday, November 16, 2001 at 2:30 p.m. in the Hearing Room, 2nd floor, Old Cumberland County Courthouse, Carlisle, Pennsylvania, at which time and place you may appear and be heard together h your witnesses and counsel if you so desire. By: Murrel R. Walters, III, Esquire, Chairman Joseph P. Ruane, Esquire Thomas D. Gould, Esquire cc: Daniel K. Deardorff, Esquire Attorney for Plaintiff Jason M. Weinstock, Esquire Attorney for Defendant Court Administrator Cumberland County Courthouse Carlisle, PA 17013 ~ " If) (~,.d'!.i.;j ;1 /,;'i.' j(', . 1. ~ -: ! DONEGAL MUTUAL COMPANY,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant : NO. 2000-8478 CIVIL TERM : CIVIL ACTION - LAW IN RE: PRELIMINARy OBJECTIONS OF DEFENDANT ROADWAY BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this ~~ day of JUNE, 2001, for the reasons set forth in the accompanying opinion, the demurrer of defendant Roadway is SUSTAINED and the complaint, as to defendant Roadway is DISMISSED. . Kevin C. McNamara, Esquire For Roadway Express, Inc. .,,}JP * ~ 0, ,-6\ VO\i1- Jason Weinstock, Esquire For the Plaintiffs Daniel Deardorff, Esquire For Charles Leese :sld i ~ '. .. ., ,~,~ !L, ,rut ,~ - <, "" ",,,, '<--<'" ",-,." ',,~'- .,'1' w.",'-- '0' ! ',' "::",:TA8Y n i 11 t\~ ? " >,-,_,_,1;. "<, ". I" Ic'lij (';. ! CU',',,:,,' ,"u'I!I,r'i"V r '~~c_, ,.J VI\l1 i PE~!NSYLvj\N!A ~~!t " ''''', ''''''~',''''' ,,,\I,, J ~~"='", !"~",J~_,....."..,,;~ifflirJ.1~I~~'ji';;I'-W'i""'fj!:~:.',,:m-.'i'1,*~\]~ "'^' '''"'LR1I''''-~'"[jtl'''iJ''''''';':'.Jmr'''1;;<-':' ,-':'r''''j '''''~~f7~,-,J~I.~W'~,~, " <..17,' " , . . ~"mr. : DONEGAL MUTUAL COMPANY,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant : NO. 2000-8478 CIVIL TERM CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY BEFORE BAYLEY, GUIDO. JJ. OPINION AND ORDER OF COURT Plaintiff instituted this action in an attempt to recover first party benefits paid to defendant Leese as a result of a motor vehicle accident which was eventually determined to be work related. Before us are defendant Roadway's preliminary objections in the nature of a demurrer. The parties have briefed and argued their respective positions. This matter is now ready for disposition. DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. ~ I" '.b 2000-8478 CIVIL TERM Alleghenv Countv v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402,408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review ofthe allegations set forth in the complaint. Mellon Bank. N.A. v. Fabinvi, 437 Pa.Super. 559, 650 A.2d 895 (1994). Applying the above standard to the case at bar, we are satisfied that the demurrer must be granted. The following facts are established by the complaint. Plaintiff paid defendant Leese first party wage and medical benefits pursuant to his private automobile insurance pOlicy.! As early as April 16, 1999, plaintiff advised defendant Leese and his attorney that it was requesting subrogation from any worker's compensation benefits paid as a result of the accident.2 On June 30,1999, plaintiff requested information regarding the status of the worker's compensation claim from defendant Roadway's third party administrator.3 In that same letter, plaintiff acknowledged the existence of the proceedings before the worker's compensation judge, making specific reference to a hearing that had been held on April 27, 1999.4 On July 22, 1999, the defendants settled the worker's compensation claim by executing a Compromise and Release Agreement which was approved by a worker's compensationjudge.5 Plaintiff seeks subrogation pursuant to Section 319 of the Worker's Compensation Act, which provides in relevant part as follows: Where an employee has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an I Complaint paragraph 6. 2 Complaint paragraph 7 and Exhibit D thereto. 3 Complaint paragraph 8 and Exhibit E thereto. 4 See Exhibit E to the complaint. 5 See Exhibit F to the complaint. 2 ~ ~ -'- -<'., '~ 'i. ! ~ " .. ~= i -, ""c.' 2000-8478 CIVIL TERM agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board. 77 P.S. ~ 671 (emphasis added). In the instant case, there was no agreement between plaintiff and defendant Roadway as to plaintiffs right to subrogation. Nor was the right to subrogation established before the referee. Therefore, defendant Roadway's demurrer must be sustained. We are unable to distinguish this case from Baier! Chevrolet v. WCAB, 149 Pa. Commonwealth 367,613 A.2d 132 (Pa. Commonwealth 1992). In Baier! the Commonwealth Court squarely addressed the rights and obligations ofthe parties under Section 319. It held that "subrogation, being an equitable concept, is not self-executing" and, absent an express agreement, "must be asserted during the pendency of a workmen's compensation proceeding." 613 A.2d at 134. P1aintiffre1ies on Kaiser v. Old Reoublic Insurance Co., 741 A.2d 748 (Pa. Super. 1999) in which the plaintiff was allowed to seek subrogation outside the worker's compensation proceeding. However, the Kaiser case reinforces our holding that defendant Roadway's demurrer must be sustained. The Kaiser Court discussed the Baier! decision as follows: The court applied section 319 and concluded subrogation was improper because Blue Cross/B1ue Shield's right to subrogation was not by contract agreement and was not raised or established at the time of the initial hearing on the worker's claim for workers' compensation benefits. However, one salient fact distinguishes Baier! from the instant matter and renders its holding inapposite to the present case. In Baier!, Blue/Cross Blue Shield was aware of the filing of the workers' compensation claim by the injured worker before the time ofthe workers' compensation hearing. Baier! at 135. Thus, Blue Cross/Blue Shield had the opportunity to comply with the provisions of section 319 by either procuring a 3 , ~ .';, \' 2000-8478 CIVIL TERM subrogation agreement or by asserting its claim for subrogation at the hearing, but did not do so. It merely sent a letter to the injured worker's attorney listing the payments it had made on the worker's behalf and stating "[y Jou may consider this letter as your authorization to protect our interests." ld. 741 A.2d 753-754. In view of the above, we are satisfied that the instant action can be maintained only if plaintiff can show that defendant Roadway agreed to protect its subrogation interest, and failed to do so. Plaintiff has pled no such agreement. 6 Absent such an agreement, it was incumbent on the plaintiffto intervene in the worker's compensation proceeding to assert its subrogation interest. Its failure to do so operates as a waiver of the claim against defendant Roadway. Therefore, the demurrer of defendant Roadway must be sustained. ORDER OF COURT AND NOW, this 20m day of JUNE, 2001, for the reasons set forth in the accompanying opinion, the demurrer of defendant Roadway is SUSTAINED and the complaint, as to defendant Roadway is DISMISSED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Jason Weinstock, Esquire For the Plaintiffs Kevin C. McNamara, Esquire For Roadway Express, Inc. Daniel Deardorff, Esquire For Charles Leese 6 It merely pled that defendant Roadway was aware of the subrogation lien. 4 .... (C,:'>> (Q) flOl .::::/ ....-::1 ~ F:\F1L~\DATAFILE\DONEGAL.DOC\159-bri.lhde Created: 11115100 03:20:'57 PM Revised: ~J3f2010111:08:30AM DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-8478 CIVIL ACTION-LAW CHARLES LEESE and ROADWAY EXPRESS, INC., Defendants JURY TRIAL OF TWELVE DEMANDED BRIEF OF PLAINTIFF IN OPPOSITION TO PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY EXPRESS 1. COUNTER STATEMENT OF FACTS: Plaintiff, Donegal Mutual Insurance Company ("Donegal") filed the present action to obtain reimbursement and/or subrogation from Defendant Leese and Defendant Roadway. DefendantLeese had been involved in a motor vehicle accident while in the course of his employment. Prior to obtaining workers' compensation benefits, Defendant Leese filed an Application for Benefits with Donegal, his first party benefits carrier on his motor vehicle, and obtained work loss benefits and medical benefits. At some later point, Donegal learned that Defendant Leese was also attempting to obtain workers' compensation benefits from his employer, Roadway. Roadway is essentially self-insured and its workers' compensation program is administered by Gallagher Bassett Services. After Donegal learned that Defendant Leese was pursuing workers' compensation benefits, it wrote letters to the attorney for Defendant Leese and advised him that if he collected workers' compensation benefits, Donegal would be entitled to subrogation. Donegal also contacted Gallagher Basset Services (the administrator of Roadway's workers' compensation program) and advised it of the subrogation lien. Donegal sent these letters to Defendant Leese's attorney and to Gallagher Basset prior to the settlement of the workers' compensation claim. In these letters, Donegal requested that it be advised of the status of the workers' compensation claim. Defendant Leese's attorney and Roadway's administrator did not respond to Donegal's letters. Moreover, Defendant Leese and Roadway entered into a settlement unbeknownst to Donegal of the workers' compensation rights. l"~"- ~. - w. w. . This settlement occurred between Defendant Leese and Defendant Roadway on July 22, 1999 for the amount of$8,076.00. The Settlement Agreement is attached to the Complaint as Exhibit F. In paragraph 11 of the Settlement Agreement, there is a section to state whether there is a lien, or potential lien, for subrogation. Defendant Leese and Defendant Roadway checked "no". The workers' compensation judge approved the settlement never knowing that there was a potential lien of Donegal. In fact, the Compromise and Release Agreement which is attached to the Complaint as Exhibit F, was signed by Defendant Leese, his attorney, a representative of Roadway and the attorney for Roadway. The Defendants and their attorneys misrepresented in the Settlement Agreement that there was no potential subrogation lien. The settlement was then approved by the workers' compensation authorities. After the settlement, Defendant Leese and Defendant Roadway's administrator refused to honor Donegal's subrogation lien and this litigation was commenced. Defendant Roadway has filed Preliminary Objections in the nature of a demurrer. II. OUESTION INVOLVED: A. IS IT CERTAIN AS A MATTER OF LAW THAT DONEGAL HAS NOT SET FORTH A CAUSE OF ACTION AGAINST DEFENDANT ROADWAY WHERE DEFENDANT ROADWAY'S ADMINISTRATOR AND ITS EMPLOYEE, DEFENDANT LEESE, WERE BOTH AWARE OF DONEGAL'S \ SUBROGATION LIEN PRIOR TO THE WORKERS' COMPENSATION SETTLEMENT, BUT THEY MISREPRESENTED TO THE WORKERS' COMPENSATION AUTHORITIES THAT THERE WAS NO POTENTIAL SUBROGATION LIEN AGAINST THE WORKERS' COMPENSATION BENEFITS BEING SETTLED? III. ARGUMENT: Donegal's claim for reimbursement and/or subrogation is a valid cause of action where the Defendants misrepresented to the workers' compensation authorities that there were no potential settlement liens prior to approval of the settlement by the workers' compensation authorities. When an employee is injured in a work related motor vehicle accident, there is no dispute that workers' 2 -,~'''"'''''i' ~ ~ ., ~ Ii "<!oJ -;~ "" -"......._, , compensation benefits to which the employee is entitled are primary over any first party benefits under his motor vehicle insurance policy. 75 Pa. C.S.A. 91719 (a). This provision in the Pennsylvania Motor Vehicle Financial Responsibility Act is essentially word-for-word the same provision that makes workers' compensation benefits primary over benefits paid by the Catastrophic Loss Fund under the same Act. 75 Pa. C.S.A. 91766 (c). Accordingly, where benefits were paid to an injured employee by a fund which was not primary, that fund was entitled to subrogation against a responsible workers' compensation carrier where the injuries were determined to be covered by the Workers' Compensation Act. Kaiser v. Old R~ublic Insurance Company, 741 A.2d 748 (pa. Super. 1999). In the present case, even though Defendant Roadway' s responsibility to pay workers' compensation benefits to its employee, Defendant Leese, was primary over the responsibility of Donegal to pay first party benefits, Defendant Roadway is attempting to shirk its responsibility because of various technicalities. First, Defendant Roadway argues that Donegal's claim is barred by the exclusive remedy provision of the Workers' Compensation Act. This same argument was rejected by the Superior Court in Kaiser v. Old Republic Insurance ComDanv, Supra. The Superior Court pointed out that the exclusivity provision in the Workers' Compensation Act, 77 P.S. 9481 (a) would not apply to a lawsuit under the same circumstances. The exclusivity provision only applies where the injured party has sued a third party, and the third party has attempted to bring the injured party's employer or workers' compensation carrier into the case for damages or contribution. In the present case, it is clear that the lawsuit by Donegal against Roadway is not an attempt to join the employer or its carrier in a lawsuit brought by the injured worker. Roadway also argues that the Workers' Compensation Act limits the amount of wage loss and medical benefits for which it is responsible. This may be true and may well limit the liability of Roadway to Donegal. However, such limitations do not preclude the present lawsuit for reimbursement and/or subrogation. Roadway also argues that Donegal has forfeited its right to subrogation/reimbursement because it failed to intervene in the pending workers' compensation case. It is true that Donegal did not intervene in the workers' compensation case filed by Defendant Leese against Defendant Roadway. The factual circumstances surrounding this failure to intervene are 3 I"~.' ....... ,. ~~~ . ''--''k '~ .' 'J "~ ~ ~ " ~._"'. , somewhat in dispute. It is clear that Donegal sent letters to both Defendant Leese's attorney and to the administrator of Defendant Roadway requesting information as to the workers' compensation claim. It also appears that neither Defendant Leese, nor the administrator of Defendant Roadway provided clear and correct information to Donegal about the status of the workers' compensation claim. However, it is undisputed that both Defendant Leese and Defendant Roadway went before the workers' compensation authorities and submitted a Compromise and Release Agreement (Exhibit F to the Complaint) in which they misrepresented to the workers' compensation authorities that there was no subrogation lien. Under these circumstances, it is clear that Defendant Leese and Defendant Roadway entered into a course of conduct attempting to mislead the workers' compensation authorities and obtain an approval of settlement bypassing the subrogation lien of Donegal. Defendant Roadway has cited in its Briefthe case of Baier! Chevrolet v. WCAB, 613 A.2d 132 (pa. Commonwealth Ct. 1992). In Baier!, the employee filed a claim against the employer. The employer accepted the claim and the petition was withdrawn. Over a year later, the employee filed another petition attempting to assert the subrogation lien of Blue Cross and Blue Shield. The workers' compensation authorities determined that it was too late for the employee to assert this subrogation lien. It is clear that the Baier! case is not applicable to the present case. First, there are no facts in the Baierl case indicating that the parties misrepresented the status of a subrogation lien. Moreover, the Commonwealth Court concluded that the employee could not assert the subrogation lien in a later proceeding, but there was no determination as to whether the party with the subrogation rights could file a petition to assert its own lien. Finally, Defendant Roadway argues that the Compromise and Release Agreement which was approved by the workers' compensation authorities on July 22, 1999 effectively extinguished any subrogation right of Donegal. In other words, Defendant Roadway takes the position that an employee and an employer can misrepresent to the workers' compensation authorities the status of a subrogation lien and deny its existence to the detriment of Donegal which is not even a party to the proceeding. We submit that this argument rewards parties who have misrepresented the facts 4 l"i/~ , ., ~ ~ ~,~ ,~~~ . t,. I,) .'.-~..w 1 to the workers' compensation authorities to the detriment of an innocent insurance carrier which has paid benefits which were rightfully the primary obligation of Defendant Roadway. The law is clear that preliminary objections in the nature of a demurrer should not be sustained unless it is a virtual certainty that the Plaintiff has not set forth a cause of action. K vIe v. McNamara and Criste, 506 Pa. 631,487 A.2d 814 (1985). Moreover, the Superior Court noted in Kaiser v. Old Republic Insurance Companv, Supra, that subrogation is an equitable doctrine which is not bound by technicalities. In the present case, it is clear that both Defendant Leese and Defendant Roadway were aware of the subrogation rights of Donegal. Nevertheless, they went ahead without the knowledge of Donegal and settled the workers' compensation case. They misrepresented to the workers' compensation authorities that there was no potential subrogation lien. It would defy all equitable principles to allow Defendant Roadway to avoid its responsibility of reimbursing or subrogating Donegal under these circumstances. Because there are numerous factual disputes and Defendant Roadway has not established to a certainty that Donegal does not have a cause of action, the preliminary objections of Defendant Roadway should be denied and dismissed. Respectfully Submitted, MARTSONDEARDORFFvnLL~S&OTTO I), ".g J... f).,. ..0 (I~ By Daniel K. Deardorff, Esquire I. D. Number 17837 Ten East High Street Carlisle, P A 17013-3093 (717) 243-3341 Date: March 23, 2001 Attorneys for Plaintiff 5 tll.l~" ~~" ."' I L --~~ > .4li.h " CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Briefin Opposition to Defendant's Preliminary Objections was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Kevin C. McNamara, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, P A 171 08 Jason Weinstock, Esquire 800 North Second Street Suirte 100 Harrisburg, P A 17102 MARTSON DEARDORFF WILLIAMS & OTTO Y T ClaD. Eckemoad en East High Street Carlisle, P A 17013 (717) 243-3341 Dated: March 23,2001 6 DONEGAL MUTUAL COMPANY, Plaintiff v. CHARLES LEESE and ROADWAY EXPRESS, INC., Defendants AND NOW, this day of IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478-CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER .JAN 1. 1 200~ ~ Ov , 2001, upon consideration of the Preliminary Objections of Defendant Roadway Express, Inc., said Preliminary Objections are sustained and the claims against Roadway Express, Inc. are dismissed with prejudice. BY THE COURT: J. DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478-CIVIL TERM v. CIVIL ACTION -LAW CHARLES LEESE and ROADWAY EXPRESS, INC., JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY EXPRESS. INC. lOPLAINTIFF'S COMPLAINT AND NOW, comes Defendant Roadway Express, Inc., by its attorneys, Thomas, Thomas & Hafer, LLP, and brings the following Preliminary Objections: 1. This is a lawsuit brought by Donegal Mutual Company to protect a first party wage and medical benefit lien which Donegal believes it has against Charles Leese and/or Roadway EXpress, Inc. 2. Donegal Mutual Company is the first party auto insurer for Charles Leese. 3. On January 17, 1999, Mr. Leese was involved in a motor vehicle accident while in the course and scope of his employment with Roadway Express, Inc. 4. After the accident, Mr. Leese filed an application for first party wage and medical benefits under his auto policy with Donegal Mutual Company and also pursued a Petition for Workers' Compensation Benefits against Roadway Express, Inc. - - . .~ ..~ ~~.~- ,,",. ~ -. -- --~"., _" ~ ." - -,"~'r""6~' .' ,."- -~ -. 5. Mr. Leese received first party wage and medical benefits from Donegal Mutual Company prior to entering into a compromise and release agreement with Roadway Express, Inc. to resolve all of his workers' compensation claims against Roadway. DEMURRER 6. Roadway has discharged all of its obligations to Mr. Leese under the provisions of the Pennsylvania Workers' Compensation Act. 7. Donegal's claim in this action would require Roadway to pay benefits in excess of those for which it is statutorily bound under the Workers' Compensation Act and such a claim is not recognized under Pennsylvania law. 8. Donegal Mutual failed to intervene in the pending workers' compensation action before it was finally resolved even though Donegal was aware that the workers' compensation claim was in litigation. 9. Donegal's failure to intervene in the pending workers' compensation action before it was finally resolved bars the claim stated against Roadway in this action. 10. Donegal never placed Roadway on notice of its asserted subrogation lien prior to the final resolution of Mr. Leese' workers' compensation claim against Roadway. 11. The compromise and release agreement entered into between Mr. Leese and Roadway fully and finally adjudicated and ended that claim and Roadway has no further responsibility to either Mr. Leese or Donegal. 2 .--- ,- ~" .-- ~" .~~" ~ 'e '~.-<'--'~"'t..-"""-""""~_"W -", h_-,'-pc'", , . WHEREFORE, Defendant Roadway Express, Inc. respectfully requests that Plaintiff's Complaint be dismissed with prejudice. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: tl c Yr}';/)~ Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Roadway Express, Inc. DATE: I/O <(10 I 3 ,~ -. ~ .'~' ~ ~,," ','",',,,,,,,,.-,",,,,,,,\_./ -"-" '__'_t' ~ "'~'~.""'.' .,-","~~__ _':""""_ ~':;~"~'\ . . .. .. CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing PRELIMINARY OBJECTIONS on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Jason Weinstock, Esquire 800 N. Second Street, Suite 100 Harrisburg, PA 17102 Daniel K. Deardorff, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 TH2 THOMAS' HAFER, UP . C - )/1/1 <;/\ By: . yrt f I~ Kevin C. McNamara, Esquire DATE: 'It? 'i'lll I :117871.1 "'-~ =' 'Ut ''''. ,'A', .."___, ,. " ,.," '" .~,,~-..;;:, 'j _.",.1,."'''"'''''''' '. , -"~t', ,,-~. illzl~_~jf:' .A'. ," ,,'-'~ '^ ,.-- ,. .'-,- -."" ",'. .= CJ ~: :<=-.. ""Gt,l rnn: 7---[, -;:'''C (,)~: ;. ~f~" -.<. c:) (2 .. L. ;::;,: "- t ,-, :::c; r'<j . .~ (') "r'n :.ri f\') --'1 ~C ...< m ,,, '.' ~,",-"'" ~ .".r:.-'. '_, c' ,"--".' ~":" ';';d~.,;_l"',"~"'~_'_l.,'_,~ ': - . -,:,--" ,,;,~"- I, ':,~ '. ,;~ ~ "~'''''.-;,; PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE: (entire caption must be stated in full) DONEGAL MUTUAL COMPANY (Plaintiff) vs. CHARLES LEESE and ROADWAY EXPRESS, INC., (Defendant) No. 2000-8478-CIVIL 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's, Roadway Express, Inc., Preliminary Objections to Plaintiffs Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Jason Weinstock, Esquire Address: 800 N. Second Street, Suite 100, Harrisburg, PA 17102 (b) for defendant: Roadway Express, Inc. - Kevin C. McNamara, Esquire Address: P.O. Box 999, Harrisburg, PA 17108 for defendant: Charies Leese - Daniel Deardorff, Esquire Address: Ten East High Street, Carlisle, PA 17013 3. argument. I will notify all parties in writing within two days that this case has been listed for 4. Argument Court Date: March 28, 2001 J{C.my)~ Attorney for Defendant Roadway Express, Inc. Dated: February 12, 2001 t 'r r~ ~ " ;tdliIl L,~ ~, ,- ';..iiIi':l!Wl.~/iIj;j;A~""""""'" r 1'ill "" . ~ M, .,., ","",,'- iil! ~, ~, .i;;:.:.''- '~~ G C::J () c: "'1'1 5:: ...,., -" ~, C(I 1'1 nl ~ ..-:r.' ... ., 2': ~~~,i Z OJ .t::-- '< .-:. r:::.C} " "- ,..t.:=.. ,-" -.;"'. -71.. J ~=C', >c..': .. --, -,> ~. ~- :D -..j -< 0'"' -< .".. ,-". !l! Cumberland County Prothonotary's Office Civil Case Inquiry 2000-08478 DONEGAL MUTUAL COMPANY (vs) LEESE CHARLES ET AL "'.r~^~'._ PYS510 ~ "I _--'-' .[1-_ ~ ,.J.~ Page 1 Reference No..: Case Type.....: COMPLAINT Judgment. . . . . . : .00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . D~sposed Date. Hlgher Crt 1.: Higher Crt 2.: 12/07/2000 11:04 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info DONEGAL MUTUAL COMPANY POBOX 302 MARIETTA PA 17547 LEESE CHARLES 650 DREXEL PLACE NEW CUMBERLAND PA 17070 ROADWAY EXPRESS INC 100 ROADWAY DRIVE CARLISLE PA 17013 PLAINTIFF DEARDORFF DANIEL K DEFENDANT DEFENDANT ******************************************************************************** * Date Entries * ******************************************************************************** 12/07/2000 /'12/18/2000 )12/18/2000 J12/27/2000 \/"1/09/2001 J2/14/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: LEESE CHARLES SERVED ; 12/21/00 NEW CUMBERLAND PA COMP Costs....: $25.92 Pd By: MARTSON, DEARDORFF, WILLIAMS 12/18/2000 ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant. : ROADWAY EXPRESS, INC SERVED : 12/08/00 COMPL Costs....: $31.10 Pd By: MARTSON, DEARDORFF, WILLIAMS 12/18/2000 ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: LEESE CHARLES SERVED : NOT FOUND NEW CUMBERLAND PA YORK CO Costs....: $25.00 Pd By: MARTS ON , DEARDORFF, WILLIAMS 12/27/2000 ------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY EXPRESS INC TO PLFF'S COMPLAINT - BY KEVIN C MCNAMARA ESQ FOR DEFT ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS ROADWAY EXPRESS INC PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY KEVIN C MCNAMARA ESQ FOR DEFT - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adl End Bal * *****************************************~************************************** COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 45.50 45.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** JAN 11 2iJ() DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478-CIVIL TERM v. CIVIL ACTION - LAW CHARLES LEESE and ROADWAY EXPRESS, INC., JURY TRIAL DEMANDED Defendants ORDER AND NOW, this day of , 2001, upon consideration of the Preliminary Objections of Defendant Roadway Express, Inc., said Preliminary Objections are sustained and the claims against Roadway Express, Inc. are dismissed with prejudice. BY THE COURT: J. JAN 11 t--l ~ DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478-CIVIL TERM v. CIVIL ACTION - LAW CHARLES LEESE and ROADWAY EXPRESS, INC., JURY TRIAL DEMANDED Defendants ORDER AND NOW, this day of , 2001, upon consideration of the Preliminary Objections of Defendant Roadway Express, Inc., said Preliminary Objections are sustained and the claims against Roadway Express, Inc. are dismissed with prejudice. BY THE COURT: J. II\N 11 i:..J .1\1 DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478-CIVIL TERM v. CIVIL ACTION - LAW CHARLES LEESE and ROADWAY EXPRESS, INC., JURY TRIAL DEMANDED Defendants ORDER AND NOW, this day of , 2001, upon consideration of the Preliminary Objections of Defendant Roadway Express, Inc., said Preliminary Objections are sustained and the claims against Roadway Express, Inc. are dismissed with prejudice. BY THE COURT: J. ~"""' . '.....<.w.,.-....~_ J ~ ----~ ,~ .,""'.~ ""'-}, SHERIFF'S RETURN - REGULAR , CASE NO: 2000-08478 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DONEGAL MUTUAL COMPANY VS LEESE CHARLES ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROADWAY EXPRESS, INC the DEFENDANT , at 0014:15 HOURS, on the 8th day of December, 2000 at 100 ROADWAY DRIVE CARLISLE, PA 17013 by handing to DEBORAH CLARK, TERMINAL SECRETARY a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.10 .00 10.00 .00 31.10 ~~---""'t:~-4 R. Thomas Kline 12/27/2000 MARTS ON , DEARDORFF, WILLIAMS Sworn and Subscribed to before By: ; '9-;" '/~~ ,,;:( 'A./7.../. Deputy Sheriff me this 3~ day of ~~~:"'~ :~~~.; A.D. C}; prothonota?Y~ ,~'~~' ~ ' ~ ~ ~ ~ : ...., ~ l: SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-08478 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DONEGAL MUTUAL COMPANY VS LEESE CHARLES ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: LEESE CHARLES but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On December 27th, 2000 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of county Surcharge Dep. York Co .00 9.00 .00 16.00 .00 25.00 12/27/2000 MARTSON, DEARDORFF, pF~~,?~ R. Thomas Kline Sheriff of Cumberland County WILLIAMS Sworn and subscribed to before me this 3M-L day of qwu~7 A,-o ( A.D. C) t L- 9r~a~ '&"""'- ~........ " _, i I ._, ni'c.,c., SHERIFF'S RETURN - REGULAR CASE NO: 2000-08478 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DONEGAL MUTUAL COMPANY VS LEESE CHARLES ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LEESE CHARLES the DEFENDANT , at 0013:21 HOURS, on the 21st day of December, 2000 at 50 DREXEL PLACE NEW CUMBERLAND, PA 17070 by handing to CHARLES LEESE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 9.92 .00 10.00 .00 25.92 so. An~ . . ~ . ~~t:~ R. Thomas Kline 12/27/2000 MARTS ON , DEARDORFF, WILLIAMS Sworn and Subscribed to before By: ~/Jh;; ~~. .. Deputy Sherif~ me this .~.ML day of ~'I ~m~. .O~; L/ )v"oo,.~~ Prothonotar ...., .~ COUNTY OF YORK OFFiCE OF THE SHERIFF SERVICE CALL (717) 771-9601 28 EAST MARKET ST, YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN ,. PlAINTIFF/S/ 3. DEF Charles Leese, et. al. Not ice & Complaint 5. NAME OF INDIVIDUAL COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLO. 4. P 0 S';VE { AT 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: OUT OF COUNTY Cumberland ADVANCED FEE PAID BY ATTY. NOTe ONLY APPLICABLE ON WRIT Of EXECUTION: N.B. 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, wtthout liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED MARTSON, DEARDORFF, WILLIAMS & OTTO 10 E. HIGH S1. CARLISLE, PA 17013 243-3341 12-7-00 12. SEND NOTICE OF SERVICE COPY NAME AND ADDRESS BELOW: (ThiS area must be completed If notice is to be mailed). CUMBERLAND COUNTY SHERIFF R. AHRENS 16. HOW SERVED, PERSONAL ( ) RESIDENCE ( ) POSTED ( ) POE ( ) SHERIFF'S OFF ( ) OTHER ( SEE REMARKS 17. I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. NAME AND TITLE OF INDIVIDUAL SERVED I LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 22. REMARKS ~Lyf\ ~k1::s+w..<<+- o.dcl~<J '" '" ~ 23. Advance Costs 6 34. Foreign County Costs 44. Signature of . Dep. Sheriff 45. Signature of York County Sheriff \HLLIAM M. HOSE 46. Signature of Foreign ,County Sheriff N SIGNATURE 47. OATE 41. AFFIRMED ancts~b~crlbed' to beiorj}rl'l:e~~ 13 ~ j;";1'& . 4a.DATE 12-13-00 49. DATE 51. DATE RECEIVEO 1. WHITE -Issuing Authority 2. PINK - Attorney 3. CANARY. Sheriff's Office 4. BLUE - Sheriff's Office ,,,,,,,",,,.,,,,,,,,",,,,,,,,,,,,",,,,,,,,,,,,,,*.,,,,,-,,,-~"'l""'-"""'-'.~'~ - i i ~""' " .*"-"I'H!l'~- r ",''''''- -'--""""""""'_"_"_''''''If''_'~''''''''-~''''i', ~W~""i\,:':ji'i'!iir':j.<',:., ,i"< " ; " _~'u' ,;'":;;,c, iC,\-!.< c;";";'_ "', "'iiJ'\:~ i;,__"O' 'C'" 'H. _.__"_ "flUE/YeO" 81l1PI&E GF SHERIFF YORK, PA '00 DEe 11 Prl 1 2~) '~', -',- .~c ~ __J - <..... ......", COUN1Y OF YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771-9601 .. . ."'<.",' ~ 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1. PLAINTIFF/S/ .n <;:;,1 3. DEFENDANT/SI 4. TYPE OFWRITOR COMPLAINT S';VE { AT - "...,.:,;'o't 5. NAME OF INDIVIDUAL COMPANY, CORPORAtiON, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. C'h:c>',' "-,Q "r'''r,'~'("1 6. .ADDRESS (STREET OR RFO WITH BOX NUMBER, APT. NO., cn'( BORO, TWP, STATE AND ZIP CODE 1,[, I ,,," ~~, "..-j,~-~". -~~ ~ '". \\-i '~. ;t ~ r" (.- i"l' hn'~" 7'1,..,/1 ;'1:t\ o PERSON IN CHARGE il DEPUTIZE ,_" <;;.f\rH-lfoll, ,.; 0 1 ST CLASS MAIL 0 POSTED 0 OTHeR , 20 _ I, SHERIFF Oi= COUNTY, PA, do hereby deputize the sheriff of ...,. ' COUN1Y tp execute this Writ and make return thereof according to law. This deputation being made atthe request and risk of the plaintiff. 7. INDICATE: SERVICE: o PERSONAL NOW i:/ " r,: r ~ SHERIFF OF Y,0IlKG0UNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Q11"( !:\'TY ,; ~~ ,.. ,'p--' '~.,"!.. \; Tn "),, "';'T',' 1" '_'1 NOTE ONLY APPLICABLE ON WRIT OF'EXECUTION: -M.B. WAIVER OF WATCHMAN. Any deputy sl1er\ff levying upon or attaching any property under within writ may lealte 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 pla.intiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEY (ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. OATE FILED "i,. :AILLLL;:t::; ,:~, OTTO ](\ E. HIGH ST. C/~RLISLE) P/\ 17ID13 2/~3-;iVi:; 12. SEND NOTICE OF SERVICE COPY NAME AND ADDRESS BELOW: (This area must be ,completed if notice is to be mailed). i!: ,~: CQlJ'i"HY S~FJ~P:F 13. I acknowledge receipt of the writ or complaint as 'Indicated above. 1\'1-\'" 1 2- ~,1 ./\[' 16. HOW SERVED: PERSONAL I ) RESIDENCE I POSTED I ) POEI ) SHERIFF'S OFF I OTHER ( SEE REMARKS 17:; I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. AME AND TITLE OF INDIVIDUAL SERVED I LIST AODRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 21. ATTEMPTS 22. REMARKS ;i 23. Advance Costs i'f: 40. Cost Due or Refund ,20 ,,:..' 43. - PROTHO/NOTARY 44. Signature of Dep. Sheriff 45. Signature 01 York County Sheriff 47. DATE 41. AFFIRMED and subscribed to before me this 42. day of 48. DATE , " , J' 46. Signature of Foreign County Sheriff SQ. I AGKNOW\.EDGE RECEIPT OF THE'SHERIFf'SHETURN SIGNATURE OF'AUTHo.RIZED'ISSU!NG AUTHORITY AN~ niLE 1. WHITE - Issuing Authority 2., PINK ~ Attorney 3. CANARY - Sheriffs Office 4. B~UE . Sheriff's Office 49. DATE 51. DATE RECEIVED .< ~'~"_H' ~ J, "~'_ I .'.'- _h c\~{ii~;~;~ , ........... NO. 082 "- "~: 12/18/00 12:28 SHERIFFS DEPT. YORK ~ 717 240 6397 ;:-i: :,. . COUNTY OF YORK OFFlCEOF THE SHERIF Gl02 . .1, PLAlNTIFF/S/ . . , . I ,'. 'i/ 3.0EFE ' .' Char.lesT.,ee!ie. e~. al.' NoH. S.::"VE { I. NAME OF INClVIDUALCOMP~NV, CORPOAAnON, ETC. TO SERVE OR DESCAIPnON OF PAOPE.ATYTO B .,.. 6. ADDRESS (STREET OR AFO WITH BOX NUM8ER. APT. NO" CITY, 80AO. "lWP. STATE AND ZIP CODE AT .- ~ ~ 7. INDICATe SERVICE: 'O~SONAL Cl PERSON IN CHARGE iil DEPunZE I Cl 1ST ClASS NOW 12/11/0n ....20.., I,SHERIFF F. CQUNTY,PA,doh to law. ThiS'd~pu~tlonbe~g~~~Bi,~:';~~~;;1~~d:s~:~g~~rar:nl!~~~!Cute IhlsWtt,andma' . . 5HERIF .'. ...,- """1 . " SHERIFF SEt'lVICE . .... PRO.CESS RECEIPT, and A~FID~VIT OF RETURN ".;' . SERVICE CALL (717) 771.9601 'INT Complaint , . ,ITTAClifD, OR SOLO. a. SPECIAL INSTRUCTIONS OR onofEA INFOR~ATION TH~ WIL.L ASSIST IN EXPEDITING seRvICE: Cl POSTED Cl O'f)fER pulize Ihe sheriff of . !hereof aCCOrding NTY ." OUT OF COUNTY ADVANCED FEE PAID BY A~TY. , " NOTe pNlV A"""CABlE ON WRIT OF EXECLmON: N.B, WAI~ER OF WATCHMAN. Any d'puty ~h"ifll''Yln9 upon or ''''hlng any . wlltlout 8' wit!;hmw(11'\ cLiStoi:ly 01 whomever Is fcund iri pO:s~es~I9'J, 'after ntllltyl.ng gel1:oli of IS..y Of ana,Chrn.ent, wllhout Ua.bllill' on 'the p hereln for My loaos;'C1eilruction.'or .rim;Q\;aJ of an, property befoi~ Shariff's silelhereot. .' ' " , 9"l)'PE.~~AND~O~ESSO!mt)RN~,'?AI()IN~!~~~~~.SI,P,~RE . :..'; ..'" .,: M!lRTSOtl;DEAR.i10RFF. ImLIA{oiS& PT,~9'W.E;'l!IGH5T. C~RLlSLE. 'PA 17m : '1~, SENQ NOTICe OF SERVIce COPY ~J~E AND ADDRESS. BELOW: (This area mu~ be compllHed It nollce is ID bfl mailed]. erw\1J1ln wrft may I8ave &ame 'Il"'Y Of Ihe 't"riIt '0 any pIaInlltf. "'. ll.DATE FILED , 12~7-00: '. '....~i'. ..,. r;::f,~t.~~r:~!j.\1~j;.. 16, HOWSERVEO, .PERSONAl( I RESIOENCE ( 'I . 'I'OSTEO ( I POE( I 17. I tllnQy certIfy and rall,lNl a NOT FOUND because I am lJnabtelo loeate the IndivIdual, com!:'My, etI;. !'lImed IS OIIe. (Se8 ,omatHs ,8. NAME AND TITLE OF INOIVIDUA" SERVED I UST ~DRESS HERE IF NOT SHOWN ABOVE (Ao",)IOII'hip 10 D,ronoBlll) ADOBESSIS IN CllMBERLl\ml (XlUNTY, OOT YORK. (XlUNTY . . .,. .., .'.'.""'-'.~' ., ~ ,. , <44. Slgnillure:ol, " . '. -.oep. Sherll1 4li. Slgl1ature ol,Yqrk C'oumy Sheriff : . .//.' . ...../... /;/ }t/y~ ,c:'.'. " '7. DATE. 46. OATE lAMM . . HOSE -46. Slgnat.urs 01 Foreign Count Shllrltf 51 NATURE 12-13-00 . .., DATE ... I'10DATe ReCelVtll , , I.: , DEe 18 2000 11:33 f' 717771 els.l!ri ", ,'~' ~ t. WHITE 'lssujI1QAut~c'lty 2. Plt~K . Attorney 3, CAN4RY -Snerlff's Of1lca 4, BLUE -ShElri"'u Office PAGE. 02 ~" - '" I"J ~IilD ~ .~-"d't~- , /::\ /y MAR 1 6 20~ THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Roadway Express, Inc. DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8478-CIVIL TERM v. CHARLES LEESE and ROADWAY EXPRESS, INC., CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY EXPRESS, INC. TO PLAINTIFF'S COMPLAINT I. PROCEDURAL HISTORY AND STATEMENT OF FACTS: This is an action brought by Donegal Mutual Insurance Company to collect on an asserted lien which arises from a January 17,1999 motor vehicle oriented incident' (Complaint 4) The incident occurred while Mr. Leese was in the course and scope of his employment with Roadway Express, Inc. (Complaint 4) Also at the time of the incident, Mr. Leese maintained a personal automobile insurance policy with Donegal which provided first party benefits in the form of medical expense and wage loss coverage. (Complaint 5-6) Following the accident, Mr. Leese filed an Application for Benefits with Donegal requesting payment of some medical expenses and wage loss. 1 The Complaint alleges that the Mr. Lease was in an accident. More correctly stated, Mr. Lease claimed that he was injured as a result of a "rough ride" on the alleged date. - ~ ~ Thereafter, Donegal paid Mr. Leese $5,489.52 in wage loss benefits and $255.96 in medical benefits. (Complaint 6) At the same time Mr. Leese was pursuing medical expenses and wage loss benefits under his personal automobile insurance policy with Donegal, he was also pursuing workers' compensation benefits from Roadway. While the Donegal first party benefit claim was still open, Donegal Claim Representative Kerri Weaver wrote to Mr. Leese's attorney notifying him that Donegal intended to subrogate against the workers' compensation carrier for the monies paid by Donegal. (Complaint Exhibit "D") Donegal did not give the same notice to Roadway. Instead, Ms. Weaver wrote to Pat Wilson of Gallagher Bassett Services (Roadway's third party claims administrator) on several occasions beginning on June 30, 1999. The letters from Donegal to Gallagher Bassett dated June 30, 1999, August 17, 1999, and September 28, 1999, state that Donegal is the first party benefits carrier for Mr. Leese and ask for updates on the status of the pending workers' compensation claim. It was not until September 28, 1999, that Donegal notified Gallagher Bassett that Donegal had "handled" medical bills under Mr. Leese's first party benefits coverage. (Complaint Exhibit D) Mr. Leese's workers' compensation claim against Roadway was fully litigated and finally settled on July 22, 1999. (Complaint 9) Under the terms of the settlement, Roadway paid $8,076 to Mr. Leese in a single lump sum. In return for this payment, Mr. Leese compromised, released and finally settled whatever claim he had for any accrued or future wage loss benefits arising from his employment with Roadway. (See 118 of Compromise and Release Agreement attached to Plaintiff's Complaint as Exhibit "F") Additionally, Roadway agreed to be responsible for reimbursing Mr. Leese or the Health and Welfare Fund (medical insurance provided through the Teamsters) for any treatment rendered due to the lumbosacral sprain between January 17, 1999, and July 21,1999. (See 119 of Compromise and Release Agreement) Finally, as part of 2 ~. ~. - ,,",'j' ;r~ the Compromise and Release Agreement, Mr. Leese waived any claim for future medical treatment provided on or after July 21, 1999. (See 11 10 of Compromise and Release Agreement) There is no mention at all of Donegal's interest or claim in the Compromise and Release papers because Donegal never intervened in those proceedings and Mr. Leese never disclosed that he had received first party medical and wage benefits from Donegal. Donegal has now initiated this action against both Roadway and Mr. Leese claiming that one Defendant, the other Defendants or both Defendants owe Donegal $5,745.48, representing the total first party benefit paid by Donegal to Mr. Leese as a result of this incident. II. STATEMENT OF ISSUES PRESENTED: A. WHETHER DONEGAL'S CLAIM FOR BENEFITS IS BARRED BY THE EXCLUSIVE REMEDY PROVISION OF THE WORKERS' COMPENSATION ACT? (Suggested answer: Yes.) B. WHETHER DONEGAL'S FAILURE TO INTERVENE IN THE NOW CONCLUDED WORKERS' COMPENSATION ACTION BEFORE IT WAS FINALLY RESOLVED BARS DONEGAL'S CLAIM AGAINST ROADWAY? (Suggested answer: Yes.) C. WHETHER THE COMPROMISE AND RELEASE AGREEMENT ENTERED INTO BY MR. LEESE TERMINATES ANY POSSIBLE CLAIM THAT DONEGAL MAY HAVE AGAINST ROADWAY? (Suggested answer: Yes.) 3 .,1_ , "c _, '"' I' '" "~'~{ III. ARGUMENT: A. Donegal's claim for benefits is barred by the exclusive remedy provision of the Workers' Compensation Act The Plaintiffs claim against Roadway here is based upon 75 Pa.C.S.A. S 1719 which makes workers' compensation payments primary to other sources of benefits in motor vehicle accident cases. It is also the undersigned's understanding that Donegal relies on the case of Kaiser v. Old Republic Insurance Companv, 741 A.2d 748 (Pa.Super. 1999), to support its position that it has an enforceable lien against Roadway. However, Donegal is incorrect in both instances. Traditionally, the Workers' Compensation Act provides the exclusive method by which an employee injured in the course and scope of employment can recover from his or her employer. 77 P.S. S 481. Generally speaking, the Workers' Compensation Act is a version of no-fault which provides employees with compensation for work-related injuries, including lost wages and medical expenses. Povser v. Newman & Co.. Inc., 522 A.2d 548, 550 (Pa. 1987). In return for being subjected to a statutory no-fault system of compensation for work-related injuries, employers are immunized against other liability by Section 303(a) of the Workers' Compensation Act, 77 P.S. S 481 (a). One of the primary defects in Donegal's position in this litigation is that if Donegal is correct, it would expose an employer like Roadway to liability in excess of that called for in the Act. Generally speaking, totally disabled employees are paid two-thirds of their pre-injury average weekly wage with some qualifications depending upon how the injured person's average weekly wage compares to the state-wide average. 77 P.S. S 511(1). If a particular employee's earnings are such that two-thirds of his or her average weekly wage exceeds the state-wide maximum, the injured employee can receive no more than the maximum; actual 4 I' ~;"'T' compensation ends up being something less than two-thirds of the pre-injury average weekly wage. 77 P.S. SS 25.1, 25.2, 511 (1). If the Court were to accept Donegal's position, an employer such as Roadway could be subjected to liability in excess of two-thirds of an employee's pre-injury average weekly wage or in excess of the state-wide maximum compensation rate. This is contrary to the scheme of compensation set up by the Workers' Compensation Act. The role of first party wage coverage from an applicable auto policy is to make up the gap between what the employee is entitled to under the Act and the wages the injured person was earning at the time of the accident. The Donegal Insurance policy fully supports this position. The "LIMIT OF LIABILITY" section of the Donegal policy clearly states that any amount payable under the policy is excess to any amount paid, payable or required to be provided to an insured under any workers' compensation law. What this means in practice is that Donegal's insurance contract specifically limits the Company's liability to making up that gap between what workers' compensation pays and what the employee was making before the incident. The position that Donegal has taken in this litigation is that Roadway is responsible for every dollar that it paid to Mr. Leese, including the gap between workers' compensation and actual pre-injury wages. This is contrary to law and contrary to the express provision of Donegal's own policy. Donegal may point to the Kaiser case and assert that there, the Superior Court rejected the argument that S 303(b) of the Act precludes subrogation in a case like this. However, Kaiser is distinguishable largely because it was decided under S 303(b) (as opposed to 303 (a)) and dealt with liability for medical expense payments and not wage loss benefits. An order for the employer or carrier to pay medical expenses related to a work injury is different from an order to pay additional wage loss in excess of the statutorily mandated maximum. The Act expressly 5 . . -.'" j-, , , - ,c. , ~. --"-'':;VilJ holds employers responsible for payment of medical care and expenses incurred after a work- related injury! 77 P.S. ~ 531. However, there is no authority for the proposition that an employer is responsible for all compensation payable under the Act and any other benefits the employee may have acquired through private auto insurance. In fact, the Act expressly prohibits an employer from being held responsible for payments above and beyond those called for by the Act itself. 77 P.S. ~ 481(a). B. Any claim that Donegal may have had for either wage or medical benefits paid to Mr. Leese was forfeited by its failure to intervene in pending workers' compensation proceedings of which Donegal had actual knowledge. While Donegal may take the disputed position that Kaiser supports its subrogation lien, unfortunately for Donegal, Kaiser most assuredly holds that under the circumstances of this case, Donegal is entitled to no recovery from Roadway. Section 319 of the Workers' Compensation Act, 77 P.S. ~ 671, contains the following provision: Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board. This section applies where an insurance company has made payments either for lost wages or medical expenses under some non-workers' compensation program where a subsequent determination is made that the payments were compensable under the Act. Humphrev v. WCAB (Supermarket Service), 514 A.2d 246 (Pa.Cmwlth. 1986). Commonwealth Court has held that subrogation, being an equitable concept, is not self-executing and must be asserted 2 Unless, of course, a medical lien holder fails to protect or other wise loses its right to collect for such 6 "-'-'-, with reasonable diligence. Id.; see, also, Baierl Chevrolet v. WCAB (Schubert), 613 A.2d 132, 134 (Pa.Cmwlth. 1992). Moreover, Commonwealth Court has made it perfectly clear that a subrogation claim must be asserted during the pendency of a workers' compensation proceeding and that a lien holder that knows of pending workers' compensation proceedings and fails to intervene is precluded from asserting its lien at a later time. Baierl, 613 A.2d at 134- 135. In the Baierl case, Blue Shield paid health benefits to an injured claimant who had initiated a claim proceeding against his employer. The Baierl decision holds that under Section 319 of the Act, a lien holder such as Blue Shield, has a right of subrogation if the right to subrogation is agreed to by the parties or is established at the time of the hearing before the referee. Id. at 135. The Court held that because there had been no agreement to recognize Blue Shield's right to subrogation nor had Blue Shield established its right in hearings before the referee, the right of subrogation was lost. Id. at 136. The Kaiser case is fully supportive of Roadway's position here. Kaiser specifically addresses Baierl, but distinguished it based upon the fact that in Kaiser, the subrogating insurer (the CAT Fund) was unaware of the existence of a work-related injury and the pendency of a Petition for Workers' Compensation benefits. 741 A.2d at 754. However, Kaiser endorses the holding in Baierl that where the lien holder has notice of the pendency of workers' compensation proceedings and an opportunity to comply with Section 319 of the Act, yet fails to do so, the right of subrogation is lost. Id. This is exactly what happened here. It is clear from the face of the Donegal Mutual Complaint and its attachments that Donegal unquestionably had notice of the pendency of workers' compensation proceedings and Donegal had, in fact, notified Mr. Leese's counsel that it intended to assert its subrogation right expenses as Donegal did here. See, below. 7 ""--' -;='_i I: '"'. once the workers' compensation proceedings were concluded. Donegal wrote to both to Mr. Leese's lawyer and to Roadway's Administrator on April 16, 1999, and on June 30, 1999, respectively, indicating that Donegal had notice of the pendency of workers' compensation claim proceedings. It is also clear that Mr. Leese compromised, released and concluded his workers' compensation claim on July 22, 1999. (Complaint 9) Unquestionably, Baierl and Kaiser preclude Donegal's claim here. The result favored by Roadway here is not only in keeping with well-established law, but is also a fair result. Had Donegal intervened in the workers' compensation proceeding, its claim could have been resolved by the workers' compensation judge. Instead, not only did Donegal not intervene, it never even gave notice to Roadway that it was asserting a lien prior to the Compromise and Rele<:lse on July 22, 1999. A review of Donegal's June 30, 1999 letter to Gallagher Bassett only gives notice that Donegal was handling Mr. Leese's first party benefits file and requested a copy of the decision or notice of any settlement. This was the only pre- settlement communication from Donegal to Roadway's Administrator. Absent from this letter is any notification that there was a lien which Donegal felt it had against any proceeds from the workers' compensation proceedings. For all Gallagher Bassett knew, Donegal may have simply been processing its gap payment which would not have generated any recoverable lien.' Instead of properly intervening to assert its subrogation right, Donegal stood by with knowledge that proceedings were pending and did nothing. The net result of this was that Roadway entered into a Compromise and Release Agreement so that with one lump sum payment, all past and future liability to this particular employee for this particular incident would be finally concluded. The Compromise and Release Agreement was approved by the workers' compensation Judge who ordered that Roadway was to be no longer responsible for the 8 ,,,, [.,1 -,y """1'; payment of workers' compensation benefits of any kind as a result of the January 17,1999 work injury. Accordingly, Donegal has no valid subrogation claim and the Complaint should be dismissed. C. The Compromise and Release Agreement entered into by Mr. Leese with Roadway extinguished any subrogation right that Donegal may have had. A long line of Pennsylvania cases has held that the actions of an insured may impair or extinguish an insurer's ability to subrogate. See,~, Archer v. State Farm, 615 A.2d 779 (Pa.Super. 1992) (insurer's subrogation rights extinguished when insured settled with tortfeasor); Torres v. Pennsvlvania Financial ResDonsibilitv Assiqned Claims Plan, 645 A.2d 1322 (Pa.Super. 1994) (insured's failure to file timely savings action against tortfeasors impaired Assigned Claims Plan's subrogation rights); Over v. Travelers, 572 A.2d 762 (Pa.Super. 1990) (insured's prosecution of claim to final judgment prejudiced Assigned Claims Plan designee's right to subrogation); and Zourelias v. Erie Insurance GrouD, 691 A.2d 963 (Pa.Super. 1997) (insured failed to protect insurer's subrogation rights by settling legal malpractice claim with attorney who allowed statute of limitations to run against tortfeasor). When Mr. Leese entered into the Compromise and Release Agreement with Roadway, he fully, finally and totally compromised any claim that he may have had resulting from the January 17, 1999 incident. Paragraph 8 of the Agreement indicates that in exchange for $8,076, Mr. Leese was compromising and releasing his claim for "any other accrued or future wage loss benefits arising from his employment with Roadway Express, Inc." Furthermore, the Agreement acknowledged that Roadway would be responsible for reimbursing either the claimant or the [Teamsters] Health and Welfare Fund for any treatment rendered due to Mr. Leese's back strain between January 17,1999, and July 21,1999. Finally, Paragraph 10 of the 3 Of course, this problem could also have been avoided had Mr. Leese notified Roadway or the workers' compensation Judge that he was in receipt of first party wage and some medical benefits from Donegal. 9 _. .,. , , -"~"''-'.i Agreement indicates that the consideration paid for the Agreement also resulted in a compromise and release of any right to any additional medical treatment provided on or after July 21, 1999. If this language is not enough, Mr. Leese signed an Employee Certification which states the following: 2. I agree that in exchange for the payment of the benefits described in this agreement, my employer, its workers' compensation insurer, and its third party administrator are completely released from any liability for any other benefits under the Pennsylvania Workers' Compensation Act on the account of the injury which is the subject of this agreement. 3. I understand that by entering into this agreement, I will receive for this injury only the workers' compensation wage loss and medical benefits which are specifically described in this agreement. I understand that if this agreement is approved by a workers' compensation judge, I will not be entitled to any additional workers' compensation benefits of any kind as the result of this injury and that agreeing to this compromise and release constitutes a waiver of my future rights under the Pennsylvania Workers' Compensation Act. It is conclusively established by virtue of the Compromise and Release, that Mr. Leese waived any further claim that could be asserted against Roadway as a result of the alleged work-related injury. It is just as clear that Roadway bargained for and received this release and waiver in exchange for a lump sum payment and that the Agreement was signed, sealed and delivered in accordance with the provisions of the Workers' Compensation Act. The Compromise and Release Agreement itself is tantamount to a general release and, as a result, Donegal's subrogation right has been extinguished' 4 This is not to say that Donegal's claim against Mr. Leese himself has been extinguished. Roadway takes no position as to that aspect of the case. 10 =- --" IV. CONCLUSION: For the reasons stated above, the claim by Donegal Mutual Insurance Company should be dismissed at least as to Roadway. Donegal's claim is contrary to existing law. Additionally, Donegal's right to subrogate has been extinguished, both by its inaction during a period of time when it knew worKers' compensation proceedings were pending and also due to Mr. Leese's entry into a Compromise and Release Agreement with Roadway. Accordingly, Roadway's Preliminary Objections should be sustained and the Complaint dismissed as to Roadway with prejudice. Respectfully submitted, THOMAS & HAFER, LLP DATE: 3//6/ [! I C'j/VlY7~ Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Roadway Express, Inc. By: 11 'u -.-- J, '.. ~ . CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Jason Weinstock, Esquire 800 N. Second Street, Suite 100 Harrisburg, PA 17102 Daniel K. Deardorff, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP BY' if /'VlY7~ Kevin C. McNamara, Esquire DATE: 3 /1:5/t) J :125864.1 '. ~ ..~ ,-.- , -<'''"'--'-'-', ~ DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2000-8478 CIVIL TERM CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant CIVIL ACTION - LAW ORDER OF COURT I~ AND NOW, October ~, 2001, the appointment as arbitrator of David Perkins is vacated and Joseph Ruane is appointed in his stead. By the Court, ;", - ,,"""',, ,.. e"v ill .~,"~,~If~,~",r!ll!!l~!II'!!t__,_ _ 1__ T'" ^'- ~".~." -- .~ ,""..,-" "'-~' r ,-' - .",. . ~"-- ~~,-~. -~,,' "' , 'J '~~ 1 1 :",,"'""""'"~'~ "~~~llIW'~"~'~~~W~~~~M'ift~~~rn. " _ ,"T:,,~ 0: ~~.,"_~ flLED-DFFIr,E r\f~ ~. 'I'~ ..J ... , .,. . 1-. ,~'C"~",'ll,.',' 'l"WWV ,"", ,,I ,,! '_': I ',',!)"j )Jt\r\j Of OC"T 15 MlIl: fO , ~ CUMBERLAND CQUNlY PENNSYLVANIA ;." i J. ~ > l~jfu' .. MURRELR. WALTERS,m Attorney at Law 54 East Main Street Mechanicsburg, PA 17055-3851 (717) 697-4650 (717) 697-9395 Fax October 11, 2001 The Honorable George E. Hoffer, President Judge Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 Attn: Sandy Re: Donegal Mutual Co. v. Leese; No. 2000-8478 Civil Term Dear Sandy: I was appointed Chairman of the Board of Arbitration for the above-captioned action. I discovered that a member of the board, David Perkins, is on leave of absence from his firm. After speaking with you, it was agreed that another member of his firm, Joseph Ruane, could be appointed. Please find enclosed a proposed order to accomplish this MRW/dms Enclosure "', , ~ ,., ","",,,-I J . '- " ."~ DONEGAL MUTUAL COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, No. 2000-8478 Civil Term v. CIVIL ACTION - LAW CHARLES LEESE and ROADWAY EXPRESS, INC., JURY TRIAL OF TWELVE DEMANDED Defendants ANSWER TO COMPLAINT Defendant, Charles Leese, by and through his attorneys, Ira H. Weinstock, P.C., respectfully submits this answer to Complaint and in support thereof avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. It is admitted that the letters referenced in Plaintiff s averments speak for themselves. The rllmainder of the allegation is specifically denied. 8. Admitted in part and Denied in part. It is admitted that the documents referenced in Plaintiffs averments speak for themselves, however, Defendant, Leese is without sufficient information to either admit or deny the remainder of Plaintiffs averment and therefore denies same. 9. Admitted in part and denied in part. It is admitted that the documents referenced in Plaintiff s averment speak for themselves. The remainder of the allegation is specifically denied. . , ,,~-, "., . ~"~ '-'Co 1 O. Admitted in part and Denied in part. It is admitted that Plaintiff has not been reimbursed the amount of $5,745.48 by Defendant Leese. Defendant Leese is without information to either admit or deny whether Roadway Express, Inc. reimbursed the Plaintiff. By way of further response, it is denied that Plaintiff is entitled to reimbursement. COUNT! Plaintiff, Donegal Mntual Insurance Company v. Defendant, Leese 11. Paragraphs 1-10 of Defendant's Answer are incorporated herein by reference and made a part hereof. 12. Denied. The referenced statute speaks for itself. Defendant's receipt of monies is not considered primary over the first party benefits, 13. Admitted in part and Denied in part. It is admitted that Plaintiffs Exhibit "A", page 4, Section C speaks for itself. It is denied, however, that this language authorizes reimbursement to the Plaintiff for any amounts received pursuant to thy' Workers' Compensation Award. By way of further answer, there is no language within the agrll\lmbnt that "clearly and conspicuously" sets forth the Plaintiffs right of subrogation and therefore the~'Can be no valid agreement for subrogation. ~i;, :- 14. Denied. Plaintiff is not entitled to ilubrogation against Defendant Leese in any amount. WHEREFORE, Defendant requests judgment against Plaintiff, Donegal Mutual Company together with such other relief the Court deems just and equitable. NEW MATTER 15. Plaintiff s Exhibit "A" fails to contain a clear and conspicuous coordination of benefits clause which'specifIcally authorizes subrogation. . 2 --,. .0 , ',,~ _ d~.' ... ' -ni'I!li!';. 16. There was no valid agreement between Plaintiff and Defendant authorizing subro.\?ation of any Workers' Compensation Claim. 17. Plaintiff failed to preserve their alJeged right of subrogation "at the time of the hearing before the Referee or the Board" as required by S~ction 319 of the Workers' Compensation Act. 18. Plaintiffs claim is barred by the Doctrine of Res Judicata. 19. Plaintiff s claim is barred by the Doctrine of Estoppel. 20. Plaintiffs claim is barred by the Doctrine of Laches. 21. If judgment is entered on behalf of the Plaintiff, Plaintiff is not entitled to full reimbursement since Defendant is entitled to the difference between actual wage loss and the percentage of such loss paid by Workers' Compellsation' for the weeks in question. !'\t; . WHEREFORE, Defendant, Charles Leese, respectfully requests judgment against Plaintiff together with such other relief the Court deems just and equitable. Respectfully Submitted, IlJA~. WEINSTOCK, P.C. 800 l'forth Second Street H~purg, P A 17102 P1~~i (717) 238-1657 By: ~,~ SON M. WEINSTOCK 3 - . _ 1 ' . .- ~ ;;'''-'., CERTIFICATE OF SERVICE AND NOW, this 14th day of Novemher, 2001, I, Jason M. Weinstock, Esquire, attorney for Plaintiff, hereby certify that I s~~~q the within DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: Daniel Deardorff, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, P A 17013 l3Y: 111 . tl ~1/ii!Il.li~_'La~~__~lU'!jgkt~lr~l:!~~~W~iIi!lf>);i~lilliiNIiIl~~- 's:'"''',>,,~._,' . I. - ~ . ",~, ,,__'=~.~',"H _ "~[_ -"0 7,.' ii!lJi.'j.... ---- -'1 0 a 0 c: -uS:: ~n CD ;:e --! Q;i(J-; 0 i'~iJJ <: Z::~:..:' r- (O~" U1 ::~-l [:I! ~ej ,~ ........ :,J)) $ .." --1;'-. -~'.'I zO - (-''):0 -0 ~ ,'"c..l--" );;c: r:-J Om 2: ~ -I en -<;. .1':"' :0 -< I' iJ; Cod,j , , . -~- , - ,'~", F:\FILES\DATAFILE\DONEGAL.DOC\159_pra 1/ajt Created: 1 1/15/00 03:20:57 PM Revised: 04/01102 04:10:38 PM 3050,159 ., , DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000- 8478 CNIL ACTION-LAW CHARLES LEESE and ROADWAY EXPRESS, INC., Defendants JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO CUMBERLAND COUNTY PROTHONOTARY: Please mark the above captioned case settled and discontinued. Thank you for your consideration. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO By ~~K~~e~ I. D. Number 17837 Ten East High Street Carlisle, P A 17013-3093 (717) 243-3341 Date: April 1, 2002 Attorneys for Plaintiff ....' - ""'" " ~'0: CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certifY that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Jason M. Weinstock, Esquire IRA H. WEINSTOCK, P.C. Suite 100 800 North Second Street Harrisburg, P A 171 02 MARTSON DEARDORFF WILLIAMS & OTTO By-~ ~ Ami J. Thumm Ten East High S eet Carlisle, P A 17013 (717) 243-3341 Dated: April 1, 2002 "" , ~ . n" -:", DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2000-8478 CIVIL TERM CHARLES LEESE and ROADWAY EXPRESS, INC., CIVIL ACTION - LAW Defendant OATH We do solemnly swear (or affirm) that we w 11 support, obey and Constitution of the United States ando;~~nstf ut on of this Commonwealth will discharge the duties of our Offi~~~;!" ~y. R WALTERS, III, ESQ., Chairman ~ defend the and that we ~ _'.i RUANE, ESQ. . ".:) ~.J ~ THOMAS D. GOULD, ESQ. AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) Jud ment is entered in favor in the amount of $5,745.48. m an and a ainst Charles Leese (Insert name if applicable.) Date of Hearing: March 11, 2002 Date of Award: March 11, 2002 ESQ. I Chairman fl;> S D. GOULD, ESQ. NOTICE OF ENTRY OF AWARD Now, this .;)7 day of 7n.M.?~ entered upon the docket and notice ~orneYs . rbitrators' compensation to be ~'d upon appeal: ~~t?-t?o ~ , 2002, at Id-j~ , j?M., the above thereof given by mail to the parties award was or their 8/ dt.~- ,.e ~ Prothonotary By: ~h0- ):'. J?h: !ifJ Depu y ~" .2~~~~~~fij~i"~-'=iIliBii~4t~}"",",~fJ>~~ ''''-'''~i]l;,'lll&lWl'.'~ p 1 . .M ~?~ ,.> ~Jlii!t!li' '.. " ~~'--""~ "J,.. . ~ '-~~ ~- (j 0 () ~ 1'''J , I :J:7:" 'TJ I"~ --" rn ,..r'-' "'! Z , ,-- -, i; J ch ~ t"-.) Y ---~ - C) r::~ -':I' - " ::;,~ C) ~'- , , )> ~~ :,-) ITI ;;::~ -.::; :::> :[-1 -, c,,, -, I .-=.-, " I, ,/ DONEGAL MUTUAL COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2000-8478 CIVIL TERM CHARLES LEESE and ROADWAY EXPRESS, INC., CIVIL ACTION - LAW Defendant OATH We do solemnly swear (or affirm) Constitution of the United States and ~h will discharge the duties of our offic >- (') 2::: c.'"C ~~ ~-'... /. ~ ::) <( f''', ';:-~ 5' ~ I =:J '~ ':',': (.I) "....: ~Jz C::: ~E6J ULL :~ u_ ,-'d ::::> C) c:;) CJ we w 11 support, obey and defend the of this Commonwealth and that we III, ESQ., Chairman RUANE, ESQ. ~ THOMAS D. GOULD, ESQ. AWARD We, the undersigned arbitrators, having been duly appointed and sworn affirmed), make the following award: (Note: If damages for delay are awarded, shall be separately stated.) (or they Jud ment is entered in favor in che amount of $5,745.48. m an and a ainst Charles Leese (Insert name if applicable.) Date of Hearing: March 11, 2002 Date of Award: March 11, 2002 ESQ., Chairman RUANE, f?) S D. GOULD, ESQ, NOTICE OF ENTRY OF AWARD Now, this ,;)7 day of '7t-1M-?~ entered upon the docket and notice attorneys, I 2002, at ~I ? .M., the above award was thereof given by mail to the parties or their Arbitrators' compensation to be Paid upon appeal: 8/ duZ' "e.~ Prothonotary $ 029,1 .t?t1 By: ~~ ~. ~1ep~ ... -_;~,i;,_<~~ . ~;,',.", '. ,0 ,~_~>;' "~;;- i;k' r'~""'''-' jildjliD4~'iiJiI~~~!ii "J&'J!i '~' ~"",-,-~~~,.~.'-l~~~&!!l!l- ~'" .....'-- J 3j:27/a) ~ ~~ 2/-> df ,Ouwl~.-#< I~ <y: );1C'7~ ~~d~ ~~~~ ~ ~ k~ ,IlL f.~. ~ p~, [~. w..:r- '- ~, ~ fJL, ~,~. !t-t'l <et ~. 'fIID lo.b q-, << "~~ c- .'. "I I i , I i . "'"?~