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HomeMy WebLinkAbout03-1880JAMES E. McCAFFERY, ; IN THE COURT OF COMMON PLEAS Plaintiff ; CUMBERLAND COUNTY, PENNSYLVANIA NO. o3-- IFFO Civil V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, ; CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by 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 judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800/990-9108 NOTICE Le Hanna demanded a ousted en la corti. Si ousted quire defenders de estas demandas expuestas en las paginas sugnuientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMIVIEDIATEM ENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800/990-9108 259653.1UMM\RT JAMES E. McCAFFERY, ; IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CIVIL ACTION -LAW , Defendant ; JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff James E. McCaffery is an adult resident of Cumberland County, Pennsylvania. 2. The Defendant Commonwealth of Pennsylvania, Department of Transportation, is an agency of the Commonwealth of Pennsylvania which, inter alia, constructs and maintains Commonwealth roadways, including their berms and drainage grates. 3. On or about December 13, 2001, at approximately 5:35 p.m., Plaintiff James E. McCaffery was traveling by bicycle on Sporting Hill Road in Hampden Township, Cumberland County, Pennsylvania. 4. It was dark out, with no adverse weather conditions. 5. Mr. McCaffery was riding a GT Talera 21-speed bicycle southbound on the northbound shoulder of Sporting Hill Road when the front wheel of his bicycle dropped into a gap between the concrete front wall and the steel grate of a storm water inlet, and he was ejected from the bicycle. 6. The inlet is a combination curb-type inlet. 7. The grate is about 60 inches by 30 inches in dimension, and is one piece apparently cut from a piece of steel walkway grating. 259653.1UMM\RT g. The openings are 2 1/2 inches by 3 1/z inches, and at the south end of the inlet, there is a 2 1/4 inch gap between the edge of the grate and the inside of the concrete wall of the inlet box, plus another one inch for the top chamfer. 9. The cause of the gap into which Mr. McCaffery's bicycle tire fell is the lack of a spacer on the grate at the southeast corner. 10. The installation and maintenance of the grate rendered it unsafe for anticipated bicycle traffic because the gap is wide enough to allow penetration by a bicycle tire, defeating the purpose of the cross-gridded grate pattern. 11. The grate and inlet constituted a dangerous and hazardous condition of the roadway, conducive to causing a crash such as occurred. 12. All of Plaintiff's damages, as hereinafter related, are the direct and proximate result of the negligence of the Commonwealth of Pennsylvania, Department of Transportation, and its employees and agents in that they: a. installed the grate in a fashion to render it unsafe for bicycle travel; b. failed to maintain the grate in such a manner that it was safe for anticipated bicycle travel; C. violated the standards for such grates indicated in PennDOT's "Design Manual Part 2," which indicates that where bicycle traffic is anticipated, a bicycle safe grate shall be used for all inlet units; d. violated PennDOT's "Roadway Construction Standards," which mandate a 1/4 inch gap on the periphery of the inlet grates; e. violated PennDOT's "Maintenance Manual," which indicates that adequate inspection should be made of frames and grates to make sure they are properly seated; 259653.IUMM\RT 2 f. violated the "Guidelines for the Design of Local Roads and Streets," which indicates that the bicycle is an important element of the highway design process and that most of the bicycle mileage is comprised of the highway system as it presently exists; g. in failing to provide a bicycle-safe drainage grate at a location where bicycle traffic was anticipated, expected, and allowed; h. in constructing and maintaining the grate such as to allow a gap to be created or exist sufficient in width to trap a wide bicycle tire; 13. Defendant was put on notice of the claim in a timely fashion by a letter dated June 7, 2002. 14. As a result of the Defendant's negligence as hereinbefore enumerated, the Plaintiff has suffered injuries which include, but are not limited to, the following: a. injury and trauma to Plaintiff s head and face; b. cervical trauma; C. dental injury; d. multiple lacerations to Plaintiff's face, resulting in permanent scars; e. lacerations and trauma to Plaintiff's left and right hands; 15. As a result of the Defendant's negligence, Plaintiff James E. McCaffery was forced to incur medical expenses in an effort to restore himself to health, and because of the nature of his injuries, James E. McCaffery will be forced to incur similar expenses in the future, and claim is made therefor. 16. As a result of the Defendant's negligence, Plaintiff James E. McCaffery has undergone and in the future will undergo great physical and mental pain and suffering, great inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 259653.1UMMaT 3 17. As a result of the Defendant's negligence, Plaintiff James E. McCaffery has in the past and may in the future sustain a loss of earnings and a diminution of earning capacity, and claim is made therefor. 18. As a direct and proximate result of Defendant's negligent conduct, Plaintiff James E. McCaffery has suffered compensable damages and loss. 19. As a result of the Defendant's negligence, Plaintiff James E. McCaffery has been and in the future will be subject to great humiliation and embarrassment, and claim is made therefor. 20. As a result of Defendant's negligence, Plaintiff James E. McCaffery has been and in the future will be subject to disfigurement, and claim is made therefor. WHEREFORE, plaintiff demands judgment against Defendant Commonwealth of Pennsylvania, Department of Transportation in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. dh i.? J opYM. Melillo, Esquire rney I.D. No. 26211 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff Date: April 23, 2003 259653.1\JN0A\RT 4 VERIFICATION I, James E. McCaffery, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. WITNESS: James E. McCaffery ??? Date: W Office of Attorney General Torts Litigation Section 15" Floor, Strawberry Square Harrisburg, PA 17120 Steven C. Gould Deputy Attorney General Direct Dial 717-783-8035 JAMES E. McCAFFERY, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant NO.03-1880 ENTRY OF APPEARANCE Please enter my appearance on behalf of Defendant, Commonwealth of Pennsylvania, Department of Transportation, in the above-captioned matter. Respectfully submitted, D. MICHAEL FISHER Attorney General By: STEVEN C. GOULD ID #80156 Deputy Attorney General Torts Litigation Section 15`" Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: April 29, 2003 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Entry of Appearance upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: JOSEPH M. MELILLO, ESQUIRE ANGINO & ROVNER, P.C. 4503 NORTH FRONT STREET HARRISBURG, PA 17110-1708 (Attorney for Plaintiff) 1 By: STEVEN C. GOULD ID #80156 Deputy Attorney General Torts Litigation Section 15t' Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: April 29, 2003 c' tv r; rr! SHERIFF'S RETURN - REGULAR CASE NO: 2003-01880 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCAFFERY JAMES E VS COMMONWEALTH OF PA DEPT OF TRA RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION the DEFENDANT , at 1518:00 HOURS, on the 24th day of April 2003 at 540 WEST NORTH STREET CARLISLE, PA 17013 SANDRA KELLER, CHIEF CLERK by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 nn Sworn and Subscribed to before me this - '7.kl- day of o-? A.D. P othonotary So Answers : R. Thomas Kline 04/25/2003 ANGINO & ROVNER By: Deputy Sheriff JAMES E. McCAFFERY, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA i NO. 03 -M o CIVIL ACTION - LAW i JURY TRIAL DEMANDED Certificate of Merit as to Commonwealth of Pennsylvania, Department of Transportation I, James DeCinti, certify that: ( ) an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (XXX) the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR 262245.1UMMIBAB ) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: June 17, 2003 James DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 262245.DUMM\BAB CERTIFICATE OF SERVICE AND NOW, this 17th day of June, 2003, I, Robbie Tejchman, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a true and correct copy of the foregoing Certificate of Merit was sent to the following counsel of record by placing same in the first class, United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Steven C. Gould, Esquire Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square: Harrisburg, PA 17120 14 4?7 '?l ?_i Rob ie Tejchm (7 C7 ('} C C.7 -i '17 l?°? ? _ iJ i ' r ? i.. _r. •--c .. ..._ .. _i., _- ? __,? ? Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Steven C. Gould Deputy Attorney General Direct Dial 717-783-8035 JAMES E. McCAFFERY, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant : NO.03-1880 NOTICE TO PLEAD TO PLAINTIFF: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. RESPECTFULLY SUBMITTED: D. MICHAEL FISHER Attorney General BY: STEVEN C. GOULD, #80156 Deputy Attorney General DATED: July 21, 2003 Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Steven C. Gould Deputy Attorney General Direct Dial 717-783-8035 JAMES E. McCAFFERY, Plaintiff COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.03-1880 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Commonwealth of Pennsylvania, Department of Transportation (hereinafter "Commonwealth Defendant"), by and through the Office of Attorney General, and files the following Answer and New Matter to Plaintiff s Complaint: 1. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, paragraph 1 is denied generally pursuant to Pa. R.C.P. 1029(e). 2. It is admitted only that the Commonwealth of Pennsylvania, Department of Transportation, is a governmental agency and has those legal duties and responsibilities for State roadway as prescribed by applicable state law and regulation. 3. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, paragraph 3 is denied generally pursuant to Pa. R.C.P. 1029(e). 4. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, paragraph 4 is denied generally pursuant to Pa. R.C.P. 1029(e). 5. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, paragraph 5 is denied generally pursuant to Pa. R.C.P. 1029(e). 6. Admitted. By way of further answer, the Commonwealth Defendant, believes, and therefore avers, that the inlet is a Type H. 7. It is admitted in part and denied in part. It is admitted that the grate is one piece and about 60 inches by 30 inches in dimension. It is denied that the grate is cut from a piece of steel walkway grating. By way of further answer, the Commonwealth Defendant, believes, and therefore avers, that the grate is from a steel beam bridge flooring. By way of further answer, paragraph 6 is denied generally pursuant to Pa. R.C.P. 1029(e). 8. It is admitted in part and denied in part. It is admitted that the grate openings are 2 % inches by 3 % inches. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, paragraph 8 is denied generally pursuant to Pa. R.C.P. 1029(e). 9. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, paragraph 9 is denied generally pursuant to Pa. R.C.P. 1029(e). 10. Denied. It is specifically denied that the installation of the grate rendered it unsafe for bicycle traffic and strict proof of same is demanded at the time of trial. It is admitted only that after the accident a gap existed that would allow penetration by certain bicycles tires. It is specifically denied that the gap that existed defeated the purpose of the cross-gridded grate pattern or rendered the grate unsafe. By way of further answer, the Commonwealth Defendant affirmatively avers that they did not have notice of the gap. By way of further answer, the Commonwealth Defendant affirmatively avers that they did not anticipate a bicycle to be operated in the opposite direction of vehicle traffic. By way of further answer, the Commonwealth Defendant avers that the roadway and grate in question were in a reasonably safe condition for use by reasonably prudent a bicyclist. By way of further answer, paragraph 10 is denied generally pursuant to Pa. R.C.P. 1029(e). 11. Denied. It is specifically denied that the grate and inlet constituted a dangerous and hazardous condition of the roadway and strict proof of same is demanded at the time of trial. By way of further answer, the Commonwealth Defendant avers that the roadway and grate in question were in a reasonably safe condition for use by reasonably prudent a bicyclist. By way of further answer, paragraph I 1 is denied generally pursuant to Pa. R.C.P. 1029(e). 12. Denied. The allegations set forth in paragraph 12 of Plaintiff s Complaint, including subparagraphs "a" through "h", constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 12, including subparagraphs "a" through "h", could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s injuries. By way of further answer, paragraph 12, including subparagraphs `"a" through "h" are denied generally pursuant to Pa. R.C.P. 1029(e). 13. The Commonwealth Defendants admit only that they received a letter from Plaintiffs counsel but denies, as a legal conclusion, whether such notice was the requisite notice in accordance with 42 Pa. C.S.A. §5522. 14. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiff s alleged injuries, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s injuries. By way of further answer, paragraph 14 is denied generally pursuant to Pa. R.C.P. 1029(e). 15. Denied. The allegations set forth in paragraph 15 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 15 could be construed as factual allegations, said allegations specifically are denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s alleged injuries. By way of further response, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiff s alleged damages, injuries and/or losses, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further response, paragraph 15 is denied generally pursuant to Pa. R.C.P. 1029(e). 16. Denied. The allegations set forth in paragraph 16 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 16 could be construed as factual allegations, said allegations specifically are denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. By way of further response, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiff s alleged damages, injuries and/or losses, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further response, paragraph 16 is denied generally pursuant to Pa. R.C.P. 1029(e). 17. Denied. The allegations set forth in paragraph 17 of Plaintiff s Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 17 could be construed as factual allegations, said allegations specifically are denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s alleged injuries. By way of further response, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiffs alleged damages, injuries and/or losses, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further response, paragraph 17 is denied generally pursuant to Pa. R.C.P. 1029(e). 18. Denied. The allegations set forth in paragraph 18 of Plaintiff s Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 18 could be construed as factual allegations, said allegations specifically are denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s alleged injuries. By way of further response, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiff s alleged damages, injuries and/or losses, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further response, paragraph 18 is denied generally pursuant to Pa. R.C.P. 1029(e). 19. Denied. The allegations set forth in paragraph 19 of Plaintiff s Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 19 could be construed as factual allegations, said allegations specifically are denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s alleged injuries. By way of further response, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiff s alleged damages, injuries and/or losses, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further response, paragraph 19 is denied generally pursuant to Pa. R.C.P. 1029(e). 20. Denied. The allegations set forth in paragraph 20 of Plaintiff s Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of paragraph 20 could be construed as factual allegations, said allegations specifically are denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant was negligent in any manner with respect to Plaintiff s alleged cause of action or that the Commonwealth Defendant was a cause, cause and effect or proximate cause of Plaintiff s alleged injuries. By way of further response, after reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding Plaintiffs alleged damages, injuries and/or losses, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further response, paragraph 20 is denied generally pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant, the Commonwealth of Pennsylvania, Department of Transportation, respectfully requests that judgment be entered in its favor and against all other parties. NEW MATTER 21. The present action is controlled by the provisions of 1 Pa. C.S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendant asserts all the defenses contained therein. 22. Liability on the part of the Commonwealth Defendant is specifically denied. 23. The Commonwealth Defendant is specifically entitled to the defenses set forth in 42 Pa. C.S.A. §8524, which section is incorporated herein and pled by reference. 24. The Commonwealth Defendant invokes any and all common law defenses available to it pursuant to 42 Pa. C.S. §8524. 25. The Commonwealth Defendant is immune from suit, and therefore Plaintiff s action is barred. 26. The Commonwealth Defendant is immune from suit pursuant to I Pa. C.S. §2310, and this action is not within any of the exceptions to immunity as set forth in 42 Pa. C.S. §8522, and therefore this action is barred. 27. The Judicial Code at 42 Pa. C.S. §5522(a), which section is incorporated herein and pled by reference, provides that the Commonwealth and the Attorney General must have received written notice of intent to sue within six (6) months from the date the cause of action accrues. In the absence of such notice, this action is barred. 28. There is no cause of action based upon a failure to inspect or improper inspection in that sovereign immunity has not been waived for such claims. 29. The Commonwealth Defendant did not have notice, written or otherwise, of the allegedly dangerous condition, or in the alternative, if said notice was received, it was not received in sufficient time prior to the alleged accident for the Commonwealth Defendant to have corrected or to have warned a bicyclist of the allegedly dangerous condition. 30. The Commonwealth Defendant did not have actual written notice of the allegedly dangerous condition, or in the alternative, if said written notice was received, it was not received in sufficient time prior to the alleged accident for the Commonwealth Defendant to have corrected or to have warned a bicyclist of the allegedly dangerous condition. 31. The Commonwealth Defendant avers that recovery may not be had against it for alleged failures to redesign, change or update designs of state-designated highways, rights-of- ways or fixtures or structures affixed thereto or located thereon. 32. The Commonwealth Defendant maintains that it cannot be sued for discretionary functions, and therefore these causes of action are barred. 33. The Commonwealth Defendant avers that recovery cannot be had against it for the exercise of authorized discretion. 34. If the accident occurred as alleged, then the condition complained of did not cause the accident or the damages, injuries and/or losses complained of. 35. At all times material to the happening of the events set forth in Plaintiffs Complaint, the Commonwealth Defendant avers that the roadway and grate in question were in a reasonably safe condition for use by reasonably prudent bicyclists. 36. Should liability be found on the part of the Commonwealth Defendant, the 10 amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. 37. The Commonwealth Defendant avers that if negligence is found to exist on its part, said negligence was not the proximate cause of Plaintiff's alleged damages, injuries and/or losses injuries. 38. If the accident occurred as alleged, then the condition complained of did not create a reasonably foreseeable risk of the accident or the injuries complained of. 39. The Commonwealth Defendant is absolved from liability because any negligence alleged on its part merely facilitated the Plaintiffs alleged damages, injuries and/or losses injuries. 40. The alleged conduct of the Commonwealth Defendant, standing alone, did not cause the Plaintiffs alleged injuries; therefore, the Commonwealth Defendants cannot be held liable for the Plaintiff s alleged damages, injuries and/or losses. 41. If Plaintiff sustained injuries as alleged, which injuries are specifically denied, then the injuries were caused by the failure of the said Plaintiff to exercise reasonable care under the circumstances, and Plaintiff s claims are entirely barred or reduced under the provisions of the Pennsylvania Comparative Negligence Statute, 42 Pa. C.S.A. §7102. 42. The causal negligence of the Plaintiff was greater than any alleged negligence on the part of the Commonwealth Defendant, and Plaintiff recovery is therefore barred, or, in the alternative, must be diminished in accordance with the Pennsylvania Comparative Negligence Act. 43. Plaintiff s claim are barred by the Doctrine of Assumption of the Risk. 44. Plaintiff s claim may be barred by the Doctrine of Release. 11 45. Plaintiff was contributorily negligent and/or failed to mitigate the claimed damages, thereby limiting and/or barring any recovery. 46. Plaintiff's alleged damages, injuries and/or losses were caused by the negligent conduct of Plaintiff, which consisted of the following: (a). Failing to use due care when bicycling; (b). Failing to keep a proper lookout; (c). Operating his bicycle at a speed which was too fast for conditions then and there existing; (d). Failing to keep a careful and diligent watch on the highway; (e). Inattentively operating the bicycle; (f). Negligence per se for failing to operate his bicycle in the same direction as vehicles operated on the roadway in violation of 75 Pa.C.S.A. §3505(b); (h). Negligence per se for failing to operate his bicycle with a front lamp in violation of 75 Pa.C.S.A. §3507(a); and (i). Failing to observe the rules of the road, Acts of Assembly and local ordinances, in such cases made and provided in violation of 75 Pa.C.S.A.§3505(a). WHEREFORE, Defendant, the Commonwealth of Pennsylvania, Department of Transportation, respectfully requests that judgment be entered in its favor and against all other parties. Respectfully submitted, D. MICHAEL FISHER Attorney General By: r STEVEN C. GOULD, I.D. #80156 Deputy Attorney General DATED: July 19, 2003 12 VERIFICATION I, MIKE KEISER, hereby verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. I understand that I am subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities for any false statements knowingly made herein. M 41SER DATED: SSVLy ZI, Z003 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Answer and New Matter of Defendant, Commonwealth of Pennsylvania, Department of Transportation upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: JOSEPH M. MELILLO, ESQUIRE ANGINO & ROVNER, P.C. 4503 NORTH FRONT STREET HARRISBURG, PA 17110-1708 (Attorney for Plaintiff) ? BY: STEVEN C. GOULD ID #80156 Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: July 21, 2003 - ? ?? ; ` , - %, _ ± ' ' ., ; , ?_. __ _ ' , _ ;: > -: : >,:?> - ?• ;, _ _ r_ ; v =?, .. JAMES E. McCAFFERY, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA i NO. 03-1880 CIVIL ACTION -LAW JURY TRIAL DEMANDED REQUEST FOR ADMISSIONS 1. Sporting Hill Road in Hampton Township, Cumberland County, Pennsylvania, where Plaintiff James E. McCaffery alleges he was injured, is a roadway which at all relevant times was owned and maintained by the Commonwealth of Pennsylvania, Pennsylvania Department of Transportation. 2. The grate and storm water inlet specified in P'laintiff's Complaint was installed and maintained at all relevant times by employees of the Commonwealth of Pennsylvania, Department of Transportation. Respectfully submitted, ANGINO & ROVNER, P.C. Date: October 3, 2003 Jos h . P?leliilo, Esquire A rney LI). No. 26211 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this .3io(, day of October, 2003, I, Robbie Tejchman, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a truce and correct copy of the foregoing document was sent to the following counsel of record by placing same in the first class, United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Steven C. Gould, Esquire Deputy Attorney General Torts Litigation Section 15a' Floor, Strawberry Square Harrisburg, PA 17120 Robbie Tejchman z ?5 'vrr; rC, '? CT O -t T ANGINO & ROVNER, P.C. Daryl E. Christopher Attonney IDk : 91895 4503 North Front Street Harrisburg, PA 17110-1708 PHONE: (717) 238-6791 FAX: (717) 238-5610 Attorney for Plaintiff: E-maih dchristopherCr an¢ino-rovner com James E McCafferv JAMES E. McCAFFERY, IN THE COURT OF COMMON PLEAS Plaintiff ' CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-1880 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CIVIL ACTION -LAW Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Daryl E. Christopher of Angino & Rovner, P.C., as counsel for the Plaintiff in the above-captioned action. Respectfully submitted, ANGINO & RO.VNER, P.C. Daryl' EE. Christopher, Esquire I.D. No. 91895 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff Date: July 27, 2006 332233 CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of EN'T'RY OF APPEARANCE on the following via postage prepaid, first class United States mail, addressed as follows: Steven C. Gould, Esquire Deputy Attorney General Torts Litigation Section 15`' Floor, Strawberry Square Harrisburg, PA 17120 Qk- M y L. rymes Date: July 27, 2006 332233 ?- PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (X) for JURY trial at the next term of civil court O for trial without a jury CAPTION OF CASE (entire caption must be stated in full) (check one) () Assumpsit Q Trespass () Trespass (Motor Vehicle) (X) Other 42 Pa.C.S.A. 4 8521 et seq. JAMES E. McCAFFERY Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Defendant The trial list will be called on October 10, 2006. Trials commence on November 6, 2006. Pre-trials will beheld on October 18, 2006. (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314-1.) No. 03-1880 Civil Indicate the attorney who will try case for the party who files this praecipe: Daryl E. Christopher, Esquire of Angino & Rovner, P.C. 4503 North Front Street, Harrisburg, PA 17110 Indicate trial counsel for other parties if known: Stephen C. Gould, Esquire, Deputy Attorney General Torts Litigation Section, I5`h Floor, Strawberry Square, Harrisburg, PA 17120 This case is ready for trial. Signed: Print Name: Da E. Chris Attorney for Plaintiff Date: September 18, 2006 CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PRAECIPE FOR LISTING CASE FOR TRIAL on the following via postage prepaid, first class United States mail, addressed as follows: Steven C. Gould, Esquire Deputy Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Marcy L. rymesser Date: September 18, 2006 -?? - i'' :'7 _7 ?`_ - ??: ?- '` 1 # 19 JAMES E. MCCAFFERY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNS`6VAgA V. CIVIL ACTION - LAW [_r -C-7'a nj 13 s"`j` rv COMMONWEALTH OF PENNSYLVANIA, NO. 03-1880 CIVIL TERM DEPARTMENT OF TRANSPORTATION, u7" Defendant JURY TRIAL DEMANDED CX) PRETRIAL CONFERENCE i w A pretrial conference was held in the above-captio°ned7 case in the chambers of Judge Oler on Thursday, October 19, 2006. Present on behalf of Plaintiff was Daryl E. Christopher, Esquire. Present on behalf of Defendant was Steven C. Gould, Esquire. This is a negligence action for personal injuries to Plaintiff, a bicyclist, based upon an allegedly dangerous road condition which caused him to fall off his bicycle. Among the defenses to be presented is an alleged absence of negligence on the part of the Defendant and alleged contributory negligence on the part of the Plaintiff. This will be a jury trial in which each counsel will have four peremptory challenges for a total of eight. The estimated duration of trial is two days. To the extent that any deposition testimony is to be shown or read to the jury and contains objections being pursued by counsel and requiring rulings by the trial court, counsel are directed to furnish copies of the affected transcripts with the areas of objection highlighted to the Court at least five days prior to commencement of the trial term. In addition, at least five days prior to the commencement of the trial term, counsel are directed to furnish briefs to the Court on the evidentiary and other issues which they expect to arise during trial. With respect to settlement negotiations, it does 1 appear to the Court that there is a reasonable prospect of settlement in this case. Daryl E. Christopher, Esquir 4503 North Front Street Harrisburg, PA 17110-1708 For the Plaintiff Steven C. Gould, Sr. Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 For the Defendant Court Admin Prothonotary By the Court, t J. Wesley Ol r Jr., J. ' e pcb - .. ANGINO & ROVNER, P.C. Daryl E. Christopher Attorney ID# : 91895 4503 North Front Street Harrisburg, PA 17110-1708 PHONE: (717) 238-6791 FAX: (717) 238-5610 Attorney for Plaintiff: E-mail: dchristonher(a,anQino-rovner.com James E McCafferv JAMES E. McCAFFERY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant CIVIL ACTION - LAW NO. 03-1880 JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Daryl E. Christopher, Esquire, counsel for the Plaintiff in the above action (or actions), respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $35,000. The counterclaim of the Defendant in the action is $0. The following attorneys are interested in the case(s) as counsel or otherwise disqualified to sit as arbitrators: Steven C. Gould, Esquire 318881 WHEREFORE, your Petitioners pray Your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ANGINO & ROVNER, P.C. Daryl . Christopher, Esquire I.D. No. 91895 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff Date: November 2, 2006 318881 .4M C-j J CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PETITION FOR APPOINTMENT OF ARBITRATORS on the following via postage prepaid, first class United States mail, addressed as follows: Steven C. Gould, Esquire Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 VV0A M cy L. rymes Date: November 2, 2006 318881 w'1 JAMES E. McCAFFERY, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1880 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this ? day of?? , 2006, in consideration of the foregoing petition, Esq. Esq. and ja-4,71 Esq. are appointed arbitrators in the above- captioned action as prayed for. BY CO R G P.J. 318881 (kek t pr- C, - t5 DVB di._3 { ti{ i? William A. Addams, Esq. Supreme Ct. ID # 06265 57 W. Pomfret St. P.O.B. 261 Carlisle, PA 17013-0261 Telephone 717-243-7638 ...............: ............................................................................:. .......................................... .................................... ............................... ...................... JAMES E. McCAFFERY In The Court of Common Pleas of Cumberland County, Pennsylvania PLAINTIFF VS No. 03-1880 CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT jury Trial Demanded OF TRANSPORTATION DEFENDANTS ...................... ...................................... ........................ .................................................................. ......................... ........................ ..... ................................... _.... _....... Order of Court AND NOW, this c2! day of 2006, the appointment of Hillary A. Dean, Esquire, is withdrawn, and , Esquire, is appointed as an Arbitrator in the above captioned action. By the Court, Q'?7)qIn y ? Y . ? ;- .S ,. t, ? ..,. S y 4s,? wf `4? t'?"Y ANGINO & ROVNER, P.C. Daryl E. Christopher Attorney ID# : 91895 4503 North Front Street Harrisburg, PA 17110-1708 PHONE: (717) 238-6791 FAX: (717) 238-5610 Attorney for Plaintiff- E-mail: dchristopher@angino-rovner.com James E. McCaffery JAMES E. McCAFFERY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant CIVIL ACTION - LAW NO. 03-1880 JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE WITH PREJUDICE To the Prothonotary: Kindly mark the above-captioned action satisfied, settled, and discontinued with prejudice. ANGINO & ROVNER, P.C. Daryl t. 'Christopher, Esquire I.D. No. 91895 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Date: ?1/a/© .-? Counsel for Plaintiff C? r-? ?? p -r? 4...- ? -?,- tit'!' ..r W' t i..?` - : (?',} ? 1 r •?w ?.'i ? Y JAMES E. MCCAFFERY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DEFENDANT 03-1880 CIVIL TERM ORDER OF COURT AND NOW, this I day of June, 2007, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED and William Addams, Esquire, Chairman, shall be paid the sum of $50.00. By the C Edgar B. BayletJ. /William Addams, Esquire Court Administrator :sal 00PI . pw.?j blulol C