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DOUGLAS, DOUGLAS & DOUGLAS
27 W. ffiGH ST.
POB 261
CARLISLE PA 17013
TELEPHONE 717.243-1700
WILLIAM P. DOUGLAS, ESQ.
Supreme Court 1.0.# 3=
[lIilieT5uncan;'a'ili1nor;by'Kllllbeiiy"r'-'Iri-theCourtoICommon'Pleas'or "I
i Duncan, her mother and natural I Cumberland County Pennsylvania i
i guardian; and Kimberly Duncan, in '
I her own right
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Plaintiffs!
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No. 01- 6515 Civil Term
vs
Johnny K's, Inc. et al.
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Civil Action Law
Compulsory Arbitration
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rHiiile'Duncan;a:iiililor;byKllnberIy"r"'fufue'CourtofCommonPleasoI'1
i Duncan, her mother and natural i Cumberland County Pennsylvania f
I guardian; and Kimberly Duncan, in i
I her own right
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Plaintiffs i
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I Joel Cummings i
i Civil Action Law
ii, Compulsory Arbitration
i Defendant i '
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No. 01- 2398 Civil Term
Defendants' Johnny K's. Inc.. and John Kritikos. Brief in
Opposition to Plaintiff's Motion to Consolidate
It would be improper to consolidate these matters for trial because they do not
involve the same parties, the theories of liability are different, and a vast majority
of the liability testimony which would be relevant in the automobile accident
litigation would be high prejudicial, irrelevant and inadmissible in the dram
shop action.
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A court may order two or more actions to be consolidated when the actions
involve a common question Q[ law or fact. Pa.R.CP. Rule 213(a) Thus, a dispute
over an insurance pohcy, in whlch an InSurance company first filed an action in
equity against the beneficiaries of the policy and later the beneficiaries filed an
action in assumpsit against the company, is a proper case for consolidation, since
the two actions arise out of the same general occurrence, certain material facts are
not in dispute, the testimony in both actions would be the same, the parties are
the same, and there are common questions of law and fact. Hare v. American
General Life Ins. Co., 43 Pa. D. & C2d 126 (CP. 1967).
Although the consolidation of pending actions into a single action is not
appropriate in every instance involving pending actions linked by a common
question of law or fact, consolidation is proper where the actions are between the
same parties and involve identical issues, Pullium v. Laurel School Dist., 316 Pa.
Super. 339, 462 A.2d 1380, 12 Ed. Law Rep. 830 (1983); Matthews v. Tohns-
Manville Corp., 33 Pa. D, & C3d 233, 1982 WL 1356 (CP. 1982), appeal quashed,
307 Pa. Super. 300, 453 A.2d 362 (1982); Manger v, Dunning, 23 Pa. D. & C3d 554,
1982 WL 691 (CP. 1982). as where several actions have been brought by the same
plaintiff against the same defendant upon causes of action which could originally
have been joined in a single action. Speier v. Locust LaundJY. 56 Pa. Super. 323,
1914 WL 4660 (1914); Phillips v. Bailey. 11 Pa. D. & C3d 45, 1978 WL 229 (CP,
1978).
On the other hand, where the controlling law and procedure of two actions
would differ, a court does not abuse its discretion in refusing to consolidate those
, />actions, Lohmiller v, Weidenbaugh, 302 Pa. Super. 174,448 A.2d 583 (1982), order
rev'd on other grounds, 503 Pa. 329, 469 A.2d 578 (1983); Daniels v, Daniels. 19
Pa. D. & C3d 36, 1981 WL 593 (CP. 1981) For example, consolidation should not
be granted where two actions involve separate contracts and should be heard
separately. Limbert v. Sealview Plastics, Inc., 17 Pa. D. & C2d 785 (CP. 1959).
Greyhound Lines. infra., involved three individual lawsuits pending in
Huntingdon, Philadelphia and Delaware counties which all arose from the same
accident, consolidation for trial was not warranted where the parties in each case,
the damages sought, and the theories of liability were all different. Greyhound
Lines, Inc. v. TransAm Trucking, Inc" 44 Pa. D, & CAth 353, 2000 WL 1007137
(CP. 2000),
Wherefore, it is respectfully requested that the above captioned matters not be
consolidated for purposes of trial.O
August 30, 2002
Respectfully submitt d,
~Q.
William P. Dougla Esq.
Attorney for defendants Johnny K's and Kritikos
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HALIE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01- CUq}> Ciu~l'-r~
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
NOTICE TO DEFEND
TO: Joel Cummings
Leiby's Trailer Court, Lot 310
7043 Carlisle Pike
Carlisle, P A 17013
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 or
relief 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,PA 17013
(717) 249-3166 or (800) 990-9108
Document #: 203400.1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 0 1- ;( 3 <; Y Cw-d -r ~
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
CIVIL COMPLAINT
1. Plaintiff Kimberly Duncan is an adult individual residing at 321 Hogestown Road,
Mechanicsburg, Cumberland County, Pennsylvania.
2. Plaintiff Kimberly Duncan is the mother and natural guardian of minor Plaintiff
Halie Duncan, who resides with her and who is 15 years old, having been born on December 9,
1985.
3. Minor Plaintiff Halie Duncan has selected Plaintiff Kimberly Duncan, as her
mother and natural guardian, to represent her interests in this action.
4. Defendant Joel Cummings is an adult individual who resides, on information and
belief, at 7043 Carlisle Pike, No, 310, Carlisle, Cumberland County, Pennsylvania.
5. On August 19, 2000, Plaintiff Kimberly Duncan was the owner of a 1997
Chrysler Cirrus with Pennsylvania registration plate number BJC2915.
6, On the aforesaid date, Defendant Joel Cummings was the owner of a 1990
Chevrolet Blazer with Pennsylvania registration plate number BDX1540.
7. On the aforesaid date, at approximately 7:00 p.m., Plaintiff Kimberly Duncan was
operating her 1997 Chrysler Cirrus eastbound and was stopped in the right lane of eastbound
Document #: 203400.1
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traffic on the Carlisle Pike (US I I North) III Hampden Township, Cumberland County,
Pennsylvania.
8. At the aforesaid time and date, minor Plaintiff Halie Duncan was a right front
passenger in the vehicle operated by her mother.
9. At the aforesaid time and date, Defendant Joel Cummings was also traveling
eastbound, but in the left lane of the Carlisle Pike (US I I North) in Hampden Township,
Cumberland County, Pennsylvania.
10. At the aforesaid time and date, Defendant Joel Cummings swerved into the right
lane in an attempt to pass the vehicle in front of him in the left lane and crashed into the rear of
adult Plaintiff's vehicle pushing her vehicle into the rear of a third vehicle which then was
pushed into the rear of a fourth vehicle.
I I. At the aforesaid time and date, after causing a multi-vehicle collision, Defendant
fled the scene of the accident, failed to stopped for steady red lights and eventually was
apprehended by the Silver Spring Township Police.
12. Defendant was visibly intoxicated when he was apprehended and was placed
under arrest and charged with numerous offenses including driving while under the influence of
alcohol, accidents involving death or personal injury, violation of traffic control signals and other
offenses.
I3. Following his arrest, Defendant was administrated a breath alcohol test with the
results of a . I 62% blood alcohol content.
14. On February 20, 2001, Defendant, with representation by counsel, pled guilty to
driving U1lder the influence and accidents involving death or personal injury and was
subsequently sentenced for these offenses on April 3, 2001.
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15. Defendant owed a duty to other lawful users of the roadway in the
Commonwealth of Pennsylvania, including Plaintiff and her daughter, to operate his vehicle in
such a way as to not cause harm or damage to said other persons and to the Plaintiffs in
particular,
16. The Defendant breached his duty and was negligent, careless and reckless in the
following particulars:
(a) Driving while under the influence in violation of 75 Pa.C.s.A.
g373l and applicable law;
(b) Operating his vehicle in careless disregard for the safety of persons
and/or property in violation of 75 Pa.C.S.A. g3714 and applicable
law;
(c) Operating his vehicle in reckless disregard for the safety of persons
and/or property in violation of 75 Pa.C.S.A. g3736 and applicable
law;
(d) Following too closely to Plaintiffs vehicle III violation of 75
Pa.C.S.A. g3310 and applicable law;
(e) Failing to observe the roadway ahead for the presence of other
vehicles;
(f) Failing to slow or stop the vehicle he was operating so as to avoid
a rear-end collision;
(g) Failing to maintain and stop the vehicle he was operating within
the assured clear distance ahead in violation of75 Pa.C.S.A. g3361
and applicable law;
(h) Failing to apply the brakes to the vehicle he was operating or take
other evasive action to avoid a collision with the rear of Plaintiff's
vehicle;
(i) Failing to maintain adequate control of the vehicle he was
operating in order to avoid a collision;
G) Failing to give warning to Plaintiff Kimberly Duncan of his
impending collision with her vehicle;
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Document #: 203400.]
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(k) Failing to keep his vehicle under proper and adequate control so as
not to expose other users to an unreasonable risk of harm;
(I) Operating his vehicle too fast for the conditions existing at the
aforesaid time and place in violation of 75 Pa.C.S.A. g3361 and
applicable law;
(m) Failing to keep alert and maintain a proper lookout for the presence
of other motor vehicles on the streets and highways;
(n) Exceeding the applicable maximum speed limit in violation of 75
Pa. C.S.A. g3362 and applicable law;
(0) Otherwise operating his vehicle at an unsafe speed;
(P) Failing to stop at the scene of the accident and render aid in
violation of75 Pa.C.S.A. g3744 and applicable law;
(q) Failing to drive in a single lane of traffic in violation of 75
Pa.C.S.A. g3309 and applicable law;
(r) Failing to obey traffic control devices and signals in violation of 75
Pa.C.S.A. g3111, 3112 and applicable law;
(s) Attempting to pass a vehicle on the right in violation of 75
Pa,C.S.A. g3303 and applicable law;
(t) Passing a vehicle when it was not safe to do so; and
(u) Attempting to overtake a vehicle on the right when it was not safe
to do in violation of75 Pa.C.S.A. g3304 and applicable.
17, As a direct and proximate result of the collision and the negligent, careless and
reckless conduct of Defendant, Plaintiffs sustained personal injuries and damages as more fully
set forth herein.
18. The Defendant violated Pennsylvania statutes in effect at the time of the accident,
is negligent per se and/or as a matter of law.
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Document #: 203400.1
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COUNT I-NEGLIGENCE
Plaintiff Halie Duncan v. Defendant
19. Paragraphs 1 through 18 hereof are incorporated herein by reference as if fully set
forth.
20. As a direct and proximate result of the collision and the negligent, careless and
reckless conduct of Defendant, Plaintiff Halie Duncan sustained and in the future may sustain
injuries which are or may be permanent, and which include, but are not limited to, the following:
(a) Trauma and injury to her back;
(b) Trauma and injury to her neck;
(c) Trauma and injury to her arm; and
(d) Trauma and injury to her head.
21. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Halie Duncan has undergone and may in
the future undergo physical pain, mental pain, discomfort, inconvenience, distress, present, past
and future loss of her ability to enjoy the pleasures of life and limitations in her pursuit of daily
activities.
22. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Halie Duncan may be permanently scarred,
deformed and disfigured.
23. In total disregard for the safety of minor Plaintiff and others, Defendant drove his
vehicle while intoxicated, drove extremely reckless, crashed into the rear of Plaintiff Kimberly
Duncan's vehicle, caused severe damage to the vehicle and injured the Plaintiffs, fled the scene
of the accident, drove recklessly from the scene of the accident, was visibly intoxicated when
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Document #: 203400.1
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arrested, was charged with several offenses including DUI and pled guilty to DUI offense and as
a result minor Plaintiff Halie Duncan is entitled to punitive damages in an amount to be
determined by proof at trial.
WHEREFORE, Plaintiff Halie Duncan, demands judgment against Defendant for the
aforesaid damages, which exceed the limits for compulsory arbitration in Cwnberland County
and demands costs, interest, damages for delay and/or punitive damages against Defendant as
allowed by law.
COUNT II - NEGLIGENCE
Plaintiff Kimberlv Duncan v. Defendant
24. Paragraphs I through 23 hereof are incorporated herein by reference as if fully set
forth.
25. As a direct and proximate result of the collision and the negligent, careless and
reckless conduct of Defendant, Plaintiff Kimberly Duncan sustained and in the future may
sustain, serious and debilitating injuries, some of which are or may be permanent, which are or
may be an aggravation and/or exacerbation of pre-existing conditions, and which include, but are
not limited to, the following:
(a) Trawna and injury to her neck;
(b) Trawna and injury to her back;
(c) Trawna and injury to her left shoulder and ann; and
(d) Trawna and injury to her head.
26. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Kimberly Duncan has received extensive
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medical treatment and was forced to incur medical expenses for the injuries she has suffered and
will continue to incur medical bills and expenses in the future.
27. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Kimberly Duncan was forced to incur
medical bills and expenses for the injuries to her child and the minor Plaintiff and may continue
to incur medical expenses in the future for her.
28, As a direct and proximate result of the aforesaid collision, negligence,
carelessness and reckless of Defendant, Plaintiff Kimberly Duncan may suffer a loss of earnings,
may suffer permanent disability, impairment and/or loss of earning capacity.
29. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Kimberly Duncan has undergone and in the
future will undergo great mental and physical pain and suffering, mental anguish, discomfort,
anxiety and distress, embarrassment and humiliation, past, present and future loss of her ability
to enjoy the pleasures of life and severe limitations in her pursuit of daily activities all to her
great loss and detriment.
30. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Kimberly Duncan has been permanently
scarred, deformed and disfigured.
31. As a direct and proximate result of the aforesaid collision, negligence,
carelessness and recklessness of Defendant, Plaintiff Kimberly Duncan has sustained incidental
costs associated with her injuries including medication expenses.
32. In total disregard for the safety of adult Plaintiff and others, Defendant drove his
vehicle while intoxicated, drove extremely reckless, crashed into the rear of Plaintiff Kimberly
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Duncan's vehicle, caused severe damage to the vehicle and injured the Plaintiffs, fled the scene
of the accident, drove recklessly from the scene of the accident, was visibly intoxicated when
arrested, was charged with several offenses including DUI and pled guilty to DUI offense and as
a result Plaintiff Kimberly Duncan is entitled to punitive damages in an amount to be determined
by proof at trial.
WHEREFORE, Plaintiff Kimberly Duncan, demands judgment against Defendant for the
aforesaid damages, which exceed the limits for compulsory arbitration in Cumberland County
and demands costs, interest, damages for delay and/or punitive damages against Defendant as
allowed by law.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By: ~.....-
Clark DeVere, Esquire
Attorney I.D. No. 68768
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Attorney for Plaintiffs
Dated: 71/20/0 I
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Document #: 203400.1
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VERIFICATION
I, Kimberly Duncan, hereby certify that the following is correct:
The facts set forth in the foregoing Civil Complaint are based upon information which I
have furnished to counsel, as well as upon information which has been gathered by counsel and/or
others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel
and not my own. I have read the Civil Complaint, and to the extent that it is based upon information
which I have given to counsel, it is true and correct to the best of my knowledge, information, and
belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon
such counsel in making this Verification. I hereby acknowledge that the facts set forth in the
aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. g4904 relating to
unsworn falsification to authorities,
Dated: '-/ /Iq /DI
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Ki berly Dunc
Document #: 203400. ]
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VERIFICATION
I, Kimberly Duncan, as parent and natural guardian of minor Plaintiff Halie Duncan, hereby
certify that the following is correct:
The facts set forth in the foregoing Civil Complaint are based upon information which I
have furnished to counsel, as well as upon information which has been gathered by counsel and/or
others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel
and not my own. I have read the Civil Complaint, and to the extent that it is based upon information
which I have given to counsel, it is true and correct to the best of my knowledge, information, and
belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon
such counsel in making this Verification. I hereby acknowledge that the facts set forth in the
aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. 94904 relating to
unsworn falsification to authorities.
Dated: 1-/11 q / Df
Document #; 203400.1
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SHERIFF'S RETURN - REGULAR
CASE NO: 2001-02398 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DUNCAN HALlE ET AL
VS
CUMMINGS JOEL
RICHARD E. SMITH
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
CUMMINGS JOEL
the
DEFENDANT
, at 1542:00 HOURS, on the 3rd day of May
2001
at LEIBY'S TRAILOR COURT
7403 CARLISLE PIKE LOT 310
CARLISLE, PA 17013
by handing to
JOEL CUMMINGS
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
So
Answers:
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18.00
3,10
,00
10.00
.00
31.10
R. Thomas Kline
05/04/2001
METZGER WICKERS
Sworn and Subscribed to before By:
me this :2 3......( day of
(jJZ/}'( d&vl A.D.
O~a~ff'
~rothonotary ,
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural gUllTdian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 01-2398 CIVIL TERM
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE PREREQillSITE TO SERVICE
OF A SUBPOENA SERVED UPON HAMPDEN TOWNSHIP POLICE DEPARTMENT
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009,22, Plaintiffs certify that
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached
thereto was mailed or delivered to each party at least twenty days prior to the date on which the
subpoena is sought to be served,
(2)
certificate,
a copy of the notice of intent, including the proposed subpoena, is attached to this
(3)
no objection to the subpoena has been received, and
(4) the subpoena which will be served is identical to the subpoena which is attached
to the notice of intent to serve the subpoena.
METZGER, WICKERSHAM, KNAUSS & ERB
By
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Clark De Vere, Esquire
Attorney J.D. #68768
3211 North Front Street
P,O, Box 5300
Harrisburg, P A 1711 0-0300
(717) 238-8187
Attorneys for Plaintiffs
Dated: 10 - (;1'1-0 r
Document #: 219019.1
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P,C.,
hereby certify that I served a true and correct copy of the foregoing document with reference to the
foregoing action by first class mail, postage prepaid, thisJJll~ay of October, 2001 on the
following:
Joel Cummings, Defendant
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
2411 North Front Street
Harrisburg, PA 17110
Document #: 219016.1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
NO. 01-2398 CIVIL TERM
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
WRY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA SERVED UPON THE CUMBERLAND COUNTY DISTRICT
ATTORNEY'S OFFICE PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Plaintiffs certify that
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached
thereto was mailed or delivered to each party at least twenty days prior to the date on which the
subpoena is sought to be served,
(2)
certificate,
a copy of the notice of intent, including the proposed subpoena, is attached to this
(3)
no objection to the subpoena has been received, and
(4) the subpoena which will be served is identical to the subpoena which is attached
to the notice of intent to serve the subpoena.
METZGER, WICKERSHAM, KNAUSS & ERB
By c:::P4-<~l-
Clark DeVere, Esquire
Attorney J.D. #68768
3211 North Front Street
P.O. Box 5300
Harrisburg, P A 17110-0300
(717) 238-8187
Attorneys for Plaintiffs
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Dated: I (j, f), 1-0 I
Document #: 219019.1
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law fIrm of Metzger, Wickersham, Knauss & Erb, PoC.,
hereby certify that I served a true and correct copy of the foregoing document with reference to the
foregoing action by fIrst class mail, postage prepaid, this J!fday of October, 200 I on the
following:
Joel Cummings, Defendant
c/o Andrew Lehman, Esquire
Nealon & Gover, PoCo
2411 North Front Street
Harrisburg, PA 17110
METZGER, WICKERSHAM, KNAUSS & ERB, P.Co
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Clark DeVere, Esquire
Document #: 219016.1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
vs.
JOEL CUMMINGS,
Defendant
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
NO. 01-2398
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and t/d/b/a JOHNNY K'S,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6515 Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
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AND NOW, this ~ day of
, 2002, upon motion of Plaintiffs,
Halie Duncan, a minor, by Kimberly Duncan, her mother and natural guardian, and Kimberly
Duncan in her own right, to consolidate, a Rule is entered upon Defendant, Joel Cununings, and
Defendants, Johnny K's, Inc., John Kritikos, individually and t/d/b/a Johnny K's, to show cause, if
any they have, why the relief ~quested in said Motion should not be granted. . //.4 _ '
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Document #: 239230.1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-2398
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6515 Civil Term
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and t/d/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 2002, upon consideration of the
Motion of Plaintiffs, Halie Duncan, a minor, by Kimberly Duncan, her mother and natural guardian,
and Kimberly Duncan in her own right, and the response of Defendants hereto, it is hereby ordered
that the above captioned actions are consolidated for purposes of discovery and trial under
Cumberland County Civil Action No. 01-2398, which shall hereinafter have a combined caption as
set forth above.
BY THE COURT:
J.
cc: All Counsel
Document #: 239230.1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 01-2398
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
NO. 01-6515 Civil Term
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and t/d/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' MOTION FOR CONSOLIDATION
Plaintiffs, Halie Duncan, a minor, by Kimberly Duncan, her mother and natural guardian,
and Kimberly Duncan in her own right, by their undersigned counsel, respectfully requests this
Court enter an Order under Pennsylvania Rule of Civil Procedure No. 213(a) consolidating the
above captioned actions for the purpose of discovery and trial and in support aver as follows:
I. On April 24, 2001, Plaintiffs commenced the above captioned action against Joel
Cummings by filing a Civil Complaint.
2. The Plaintiffs' Complaint alleges that they sustained personal injuries when
Defendant, Joel Cummings, swerved his vehicle into the right lane in an attempt to pass the
Document #: 239230.1
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vehicle in front of him in the left lane and crashed into the rear of Plaintiffs' vehicle, pushing that
vehicle into the rear of a third vehicle which was then pushed into the rear of a fourth vehicle on
August 19, 2000, on the Carlisle Pike (U.S. 11 North) in Hampden Township, Cumberland
County, Pennsylvania.
3. Plaintiffs allege that their injuries were caused by the negligence of Defendant,
Joel Cummings, including driving while under the influence in violation of 75 Pa.C.S,A. Section
3731 and applicable law.
4. At the accident scene, Defendant, Joel Cummings, after causing a multi-vehicle
collision, fled the scene of the accident, failed to stop for steady red lights, and eventually was
apprehended by the Silver Spring Township Police. Defendant, Joel Cummings, was visibly
intoxicated when he was apprehended and was placed under arrest and charged with numerous
offenses including driving while under the influence of alcohol, accidents involving death or
personal injury, violation of traffic control signals, and other offenses. Following his arrest, Joel
Cummings was administered a breath alcohol test with the results revealing a .162 percent blood
alcohol level.
5. On February 20, 2001, Joel Cummings, with representation by counsel, pled
guilty to driving under the influence and accidents involving death or personal injury and was
subsequently sentenced for these offenses on April 3, 2001.
6. The parties have exchanged written discovery and one deposition has been taken.
7. After the aforesaid Complaint was filed, Plaintiffs conducted discovery including
the deposition of Defendant, Joel Cummings. He testified that he was consuming alcohol in a
bar which was later identified to be Johnny K's located at 6427-6437 Carlisle Pike,
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Mechanicsburg, Cumberland County, Pennsylvania, from approximately 3:00 o'clock p.m. to
5:00 o'clock p.m. on the date of the accident on August 19, 2000. In addition, during the
aforesaid deposition, Defendant, Joel Cummings, testified that he consumed three beers at the
establishment and that he had not had any alcohol in three months. He further testified that he
had cut himself off from drinking because he felt that he had had one too many and because he
felt that his vision was starting to become blurred. Shortly after he left Johnny K's, Joel
Cummings caused the aforesaid accident.
8. On November 16,2001, Plaintiffs commenced a separate civil action by filing a
Civil Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, against
Johnny K's, Inc., and John Kritikos, individually and t/d/b/a Johnny K's at Docket No. 01-6515.
9. An Amended Complaint was filed against Johnny K's, Inc., and John Kritikos,
individually and t/d/b/a Johnny K's on January 3, 2002.
10. The Complaint against Johnny K's, Inc., and John Kritikos, individually and
t/d/b/a Johnny K's alleges that the Defendants violated the Liquor Code including 47 P.S.
Section 4-493(1) and Section 4-497 by selling, furnishing, and/or giving liquor, malt, and or
brewed beverages to Defendant, Joel Cummings, while he was visibly intoxicated.
11. The Complaint further alleges that the Defendants' acts of selling, furnishing,
and/or giving liquor, malt, and or brewed beverages to Defendant, Joel Cummings, also was
negligent and that they should have known based on his condition that he should not be served
with such alcohol; based on the knowledge that he would be operating a motor vehicle after
leaving the establishment; and/or based on the knowledge of his prior alcohol consumption at the
establishment and intoxication.
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12. In addition, the Complaint further alleges that Johnny K's, based on information
and belief, served persons who were visibly intoxicated on prior occasions and received citations
for doing so from the Pennsylvania Liquor Control Board and despite receiving these prior
citations, the Defendants have again served a visibly intoxicated person, Defendant, Joel
Cummings, resulting in injuries to Plaintiffs and others.
13. On or about March 5, 2002, Johnny K's, Inc" John Kritikos, individually and
tJd/b/a Johnny K's, filed an Answer to the Amended Civil Complaint with New Matter. On April 2,
2002, Plaintiffs filed a Reply to Defendants' New Matter and the pleadings are now closed.
14, The parties to the second action have exchanged written discovery but have not yet
taken any depositions,
15. Both actions involve the same set of facts and arise from the Plaintiffs' accident on
August 19,2000,
16, Consolidation of the cases will avoid duplication of expense both in additional
discovery and trial to the benefit of the parties and the Court Consolidation will also avoid the
necessity of calling the same lay and expert witnesses in two trials, including the parties, medical
witnesses, the investigating police officer and toxicologist.
17. Also, Plaintiffs want to assert their right to claim joint and several liability against
the aforesaid Defendants at trial.
18. Counsel for Defendant, Joel Cummings, has agreed to stipulate to consolidation;
counsel for Defendants, Johnny K's, Inc., John Kritikos, individually and tJd/b/a Johnny K's, has
not agreed to stipulate to consolidation.
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Document #: 239230.1
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WHEREFORE, Plaintiffs, Halie D\U1can, a minor, by Kimberly D\U1can, her mother and
natural guardian, and Kimberly D\U1can in her own right, respectfully request that this Court
consolidate both actions brought by them as a result of the motor vehicle accident on August 19,
2000, \U1der Cumberland CO\U1ty Civil Action No. 01-2398 and that the actions be consolidated
from this point on for the purposes of discovery and trial.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By: ~ ~d,..j~
Clark DeVere, Esquire
Attorney J.D. No. 68768
Andrew C. Spears
Attorney J.D. No. 87737
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Attorneys for Plaintiffs
Dated:
~</.rJ- /-r-, 2-00Z-
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Document #: 239230.1
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C.,
hereby certifY that I served a true and correct copy of the foregoing document with reference to the
foregoing action by first class mail, postage prepaid, this 15th day of August, 2002, on the following:
Joel Cummings
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
241 I North Front Street
Harrisburg, P A 17110
Johnny K's, Inc. and John Kritikos, individually and t/d/b/a Johnny K's
c/o William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
P.O. Box 261
Carlisle, PA 17013-0261
Clark~Uire
Document #: 239230.1
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DOUGLAS, DOUGLAS & DOUGLAS
27 W. ffiGH ST.
POB 261
CARLISLE P A 17013
TELEPHONE 717.243-1790
WILUAM P. DOUGLAS, ESQ.
Supreme Court I.D.# 37926
'HaHeDuncan~'a'mInor;-byKlffiberly'-T--Iilfue'(:ourtorCommonljfeas'or--;
Duncan, her mother and natural . Cumberland County Pennsylvania ;
guardian; and Kimberly Duncan, in I
her own right !
Plaintiffs i
No. 01- 6515 Civil Term
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i Halle Duncan, a minor, by Kimberly i In the Court of Common Pleas of I
i Duncan, her mother and natural i Cumberland County Pennsylvania ;
I guardian; and Kimberly Duncan, in '
i her own right
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Plaintiffs !
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No. 01- 2398 Civil Term
vs
\ Joel Cummings
Civil Action Law
, Compulsory Arbitration
Defendant I ;
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Defendants' Johnny K's. Inc.. and John Kritikos. Reply in
Opposition to Plaintiff's Motion to Consolidate
1. Admitted.
2, Admitted.
3. Admitted.
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4. Denied. After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded. The
allegations{s) of visibly intoxicated is specifically denied by defendants.
5. Denied. After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded.
6. Denied. After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded,
7. Denied. After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded
The deposition speaks for itself,
8. Denied as stated,
9. Admitted.
10, Admitted.
11. Denied as stated.
12. Denied as stated.
13. Admitted.
14. Admitted.
The complaint speaks for itself.
The complaint speaks for itself.
15. DENIED. These are two very separate and distinct causes of action
involving different parties, different fact and facts that may be relevant in one
case are clearly inadmissible in the other.
16. Denied. The defendants Johnny K's and John Kritikos have no
objection to the matter being consolidated for the purposes of discovery only
which will save the plaintiffs duplicative expense. However, the aforesaid
defendants strongly oppose this matter being consolidated for purposes of trial.
It is the understanding of the Johnny K defendants that Joel Cunningham has
admitted to the causing of the accident and admitted being intoxicated at the
time and rear-ending the plaintiffs therefore all the witnesses, i.e. the police
officers and toxicologist, will not have to be called in the case of Joel
Cunningham. It is also the understanding of the Johnny K defendants, that Joel
Cunningham has only $15,000.00 in liability insurance and is judgment proof, so
in all likelihood, there will be no Joel Cunningham trial. As for medical
witnesses, it is assumed they will be presented via videotape and the same tape
may be used in both trials. It is defendants' position that the true purpose of the
attempted consolidation is to bootstrap evidentiary issues and a potentially large
verdict involving an intoxicated driver against the innocent Johnny K
defendants, The bottom line is if these cases are not consolidated there won't be
two trials,
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17. Denied. The defendants cannot be held jointly and severely liable in
this matter as there is no way possible for the jury to compare the relative
degrees of fault without speculation. This matter being similar to a medical
malpractice action/ automobile accident type situation which are never
consolidated.
18. Admitted.
Wherefore, Defendants Johnny K's, Inc. and and John Kritikos respectfully
request that this Court consolidate these cases for the purpose of discovery only
and not consolidate these cases for purposes of trial.
August 3D, 2002
ReSpectfu1l~S~b .tted,
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William P. Dougla Esq.
Attorney for Johnny K/Kritikos
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DOUGLAS, DOUGLAS & DOUGLAS
1:7 W. mGB ST.
POB 261
CARLISLE P A 17013
TELEPHONE 717-243.1790
WILLIAM P. DOUGLAS. ESQ.
Supreme Court J.D.# 37926
rHalie Duncan-; a mi.i1.or;by'Kimberiy---l-fu. ilie- CoUrt or CommonPieasof-'-\
I Duncan, her mother and natural i Cumberland County Pennsylvania i
! guardian; and Kimberly Duncan, in ! i
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Plaintiffs i No. 01- 6515 Civil Term
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I Johnny K's, Inc. et al. i,.!,'"
Ovil Action Law
i [ Compulsory Arbitration
i Defendant I ;
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I HaTie Duncan, a rnmor;l,y Kiffiberly---r---Iiltile-cour(of CommonPleasor--1
i Duncan, her mother and natural I Cumberland County Pennsylvania !
I guardian; and Kimberly Duncan, in ! I
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I. !
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I Plaintiffs I No. 01- 2398 Civil Term
\ w I
I Joel Cummings
; Civil Action Law
I : Compulsory Arbitration :
I Defendant i I
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Defendants' Johnny K's. Jnc.. and John Kritikos. Reply in
Opposition to Plaintiff's Motion to Consolidate
L Admitted,
2. Admitted.
3. Admitted.
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4. Denied, After reasonable investigation the d~fendant is unable to
determine the truth of the allegation and proof thereof is demanded. The
allegations(s} of visibly intoxicated is specifically denied by defendants.
5. Denied. After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded.
6. Denied. After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded.
7, Denied, After reasonable investigation the defendant is unable to
determine the truth of the allegation and proof thereof is demanded
8. Denied as stated,
9. Admitted.
10. Admitted.
11. Denied as stated.
12. Denied as stated.
13. Admitted.
14. Admitted.
The deposition speaks for itself,
The complaint speaks for itself.
The complaint speaks for itself.
15. DENIED. These are two very separate and distinct causes of action
involving different parties, different fact and facts that may be relevant in one
case are clearly inadmissible in the other.
16, Denied. The defendants Johnny K's and John Kritikos have no
objection to the matter being consolidated for the purposes of discovery only
which will save the plaintiffs duplicative expense. However, the aforesaid
defendants strongly oppose this matter being consolidated for purposes of trial.
It is the understanding of the Johnny K defendants that Joel Cunningham has
admitted to the causing of the accident and admitted being intoxicated at the
time and rear-ending the plaintiffs therefore all the witnesses, i.e. the police
officers and toxicologist, will not have to be called in the case of Joel
Cunningham. It is also the understanding of the Johnny K defendants, that Joel
Cunningham. has only $J5,OOO.OO in liability insurance and is judgment proof, so
in all likelihood, there will be no Joel Cunningham trial. As for medical
witnesses, it is assumed they will be presented via videotape and the same tape
may be used in both trials. It is defendants' position that the true purpose of the
attempted consolidation is to bootstrap evidentiary issues and a potentially large
verdict involving an intoxicated driver against the innocent Johnny K
defendants, The bottom line is if these cases are not consolidated there won't be
two trials.
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HAllE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian, and KIMBERLY
DUNCAN, in her own right,
Plaintiffs,
v.
JOEL CUMMINGS,
Defendant.
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO.: 2001-2398
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the undersigned's appearance on behalf of the Defendant,
Joel Cummings, with regard to the above-captioned matter.
Respectfully submitted,
NEALON & GOVER, P.C.
By:
1A1~&l~
Matthew R. Gover, Esquire
I.D.#:47593
2411 North Front Street
Harrisburg, PA 17110
(717) 232-9900
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CERTIFICATE OF SERVICE
AND NOW, this ~ day of May, 2001, I hereby certify that I have served the
foregoing PRAECIPE FOR ENTRY OF APPEARANCE on the following by depositing a
true and correct copy of same in the United States mail, postage prepaid, addressed to:
Clark DeVere, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
~q~-
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HAllE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
PLAINTIFFS
V.
JOEL CUMMINGS,
DEFENDANT
""
"._. -, ._ 'F ",~;- ",..-
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: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 01-2398 CIVIL TERM
HAllE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
PLAINTIFFS
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHNNY K'S INC., JOHN KRITIKOS,
individually and tJd/b/a JOHNNY K'S,
DEFENDANTS : 01-6515 CIVIL TERM
ORDER OF COURT
AND NOW, this
~
day of September, 2002, following a review of
plaintiffs' motion for consolidation of the above-captioned cases, and the objection of
defendants, Johnny K's Inc., John Kritikos, individually and tJdlbla Johnny K's, to
consolidation for purposes of trial, the Rule to show cause entered on August 20,2002,
is made absolute. The suits at No. 01-2398 and 01-6515, ARE CONSOLlDATED.1
~'
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I See Terwilliger v. Kitchen, et al., 781 A.2d 1201 (Pa. Super. 2001).
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~Iark DeVere, Esquire
For Plaintiffs
/!Jilliam P. Douglas, Esquire
For Johnny K's, Inc. and John Kritikos, individually and tldlb/a Johnny K's
~ndrew Lehman, Esquire
For Joel Cummings
:saa
.--
,
HAllE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
PLAINTIFFS
V.
JOEL CUMMINGS,
DEFENDANT
"I'
, .
" - " -"', _.~- ~--, '~"'T"'
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
01-2398 CIVIL TERM ./
HAllE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
. natural guardian and KIMBERLY
DUNCAN in her own right,
PLAINTIFFS
V,
JOHNNY K'S INC" JOHN KRITIKOS,
individually and tldlbla JOHNNY K'S,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-6515 CIVIL TERM
ORDER OF COURT
AND NOW, this 1\ s Y day of March, 2003, upon consideration of the
Petition for Approval of Minor Plaintiff's Compromise Settlement, it is hereby ORDERED
AND DECREED that the' settlement for the gross sum of Two Thousand Five Hundred '
and 00/100 ($2,500.00) Dollars is APPROVED. Counsel fees and expenses are found
to be fair and reasonable and also approved as set forth below. The distribution is
directed as follows:
(a) The sum of $1 ,784.09 shall be placed in a federally insured interest bearing
account in the name of Halie Duncan, born December 9,1985. The account shall
contain the following notation: NO WITHDRAWAL SHALL BE MADE BY HAllE
- , -
"',
J _,_
" - .'''~ " " , -'"
~,- '-'-'f
DUNCAN BEFORE SHE OBTAINS HER MAJORITY UNLESS BY ORDER OF A
COURT OF COMPETENT JURISDICTION.
(b) To be paid to Metzger, Wickerhsham, P.C., for counsel fees, the sum of
$625.00.
(c) To be paid to Metzger, Wickersham, P.C., for expenses, the sum of $90.91.
(d) Counsel for plaintiff shall file proof of said deposit with the Prothonotary with
William P. Douglas, Esquire
For Johnny K's, Inc. and John Kritikos, individually and t1d/b/a Johnny K's
. ~ 3-31-QJ
~
a copy to be forwarded to chambers.
Clark DeVere, Esquire
For Plaintiffs
Andrew Lehman, Esquire
For Joel Cummings
:sal
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HALlE DUNCAN, a minor, by
KlMBERL Y DUNCAN, her mother and
natural guardian and KlMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 0172398 ./
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KlMBERL Y DUNCAN, her mother and
natural guardian and KlMBERL Y
DUNCANinh~ownrigh~
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 01-6515 Civil Term
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and t/d/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
PETITION FOR APPROVAL OF MINOR
PLAINTIFF'S COMPROMISE SETTLEMENT
Pursuant to Pa.R.C.P. No, 2039, Kimberly Duncan, as parent and natural guardian of
Halie Duncan, files this Petition for Court Approval of Minor Plaintiffs Compromise Settlement
and in support thereof avers the following:
1. Petitioner, Kimberly Duncan, is an adult individual residing at 321 Hogestown
Road, Mechanicsburg, Cumberland County, Pennsylvania, 17050,
2, Petitioner, Kimberly Duncan, is the parent and natural guardian of minor Plaintiff,
Halie Duncan, who resides with Petitioner, Kimberly Duncan, and who is 17 years old, having
been born on December 9, 1985.
- 1-
Document #263049
~. "'--,L' '~'.- ". _", -,',-
" ,
3. Minor Plaintiff, Halie Duncan, has selected Petitioner, Kimberly Duncan, as her
parent and natural guardian, to represent her interest in this Petition.
4. Defendant, Joel Cummings, is an adult individual who resides, on information and
belief, at 12 Valley Street, Duncannon, Perry County, Pennsylvania.
5. Defendant, Johnny K's., mc" is a Pennsylvania corporation with a former place of
business at 6437 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17055.
6. Defendant, John Kritikos, is an adult individual who resides, on information and
belief, at 50 Hoover Road, Carlisle, Cumberland County, Pennsylvania, 17013.
7. Defendant, John Kritikos, formerly owned the property at 6427-6437 Carlisle
Pike, Mechanicsburg, Cumberland County, Pennsylvania, 17055, and formerly did business as
Johnny K's.
8. On August 19, 2000, Plaintiffs, Halie and Kimberly Duncan, were involved in a
multi-car accident caused by Joel Cummings on the Carlisle Pike, in Hampden Township,
Cumberland County, Pennsylvania.
9. The accident occurred when Defendant, Joel Cummings, swerved into the right
lane in an attempt to pass the vehicle in front of him in the left lane and crashed into the rear of
adult Plaintiff's vehicle pushing her vehicle into the rear of a third vehicle, which was then
pushed into the rear of the fourth vehicle. A true and correct copy of the police accident report is
attached hereto as Exhibit "A" and incorporated herein by reference,
10. On April 24, 2001, Plaintiffs commenced the above captioned action against Joel
Cummings by filing a Civil Complaint which was docketed at Cumberland County Action No,
01-2398.
- 2-
Document #263049
, .
11. Plaintiffs allege that their injuries were caused by the negligence of Defendant,
Joel Cummings, including driving while under the influence, a violation of 75 Pa. C.S.A. Section
3731 and applicable law.
12. On February 20, 2001, Joel Cummings, with representation by counsel, pled
guilty to driving under the influence and accidents involving deaths or personal injury and was
subsequently sentenced for these offenses on April 3, 2001.
13. After the aforesaid Complaint was filed, Plaintiffs conducted discovery, including
the deposition of Defendant, Joel Cummings, He testified that he was consuming alcohol in a
bar which was later identified to be Johnny K's located at 6427-6437 Carlisle Pike,
Mechanicsburg, Cumberland County, Pennsylvania, from approximately 3:00 o'clock p.m. to
5:00 o'clockp,m, on the date of the accident on August 19, 2000.
14. In addition, during the aforesaid deposition, Defendant, Joel Cummings, testified
that he consumed three beers at the establishment and that he had not had any alcohol in three
months. He further testified that he had cut himself off from drinking because he felt that he had
had one too many and because he felt that his vision was starting to become blurred. Shortly
after he left Johnny K's, Joel Cummings caused the aforesaid accident.
15. On November 16,2001, Plaintiffs commenced a separate civil action by filing a
Civil Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, against
Johnny K's, Inc., and John Kritikos, individually and tld/b/a Johnny K's, docketed at No.
01-6515.
16. An Amended Complaint was filed against Johnny K's, Inc" and John Kritikos,
individually and tld/b/a Johnny K's, on January 3, 2002, alleging that the Defendants violated the
.3-
Document #263049
. .
Liquor Code including 47 P,S. Section 4-493(1), and Section 4-497(1), and Section 4-497, by
selling, furnishing, and/or giving liquor, malts, and/or brewed beverages to Defendant, Joel
Cummings, while he was visibly intoxicated.
17. On August 15, 2002, Plaintiffs filed a Motion for Consolidation for the purpose of
discovery and trial on the basis that both actions have the same set of facts and arise from the
Plaintiffs' accident on August 19, 200, and that consolidation of the cases would avoid
duplication of expense, both in additional discovery and trial, to the benefit of the parties and the
Court and that Plaintiffs wanted to assert their right to claim joint and several liability against
both sets of Defendants at trial.
18. Counsel for Defendant, Joel Cummings, agreed to stipulate to the consolidation;
counsel for Defendants, Johnny K's, Inc., and John Kritikos, individually and tJd/b/a Johnny K's,
declined to stipulate to consolidation.
19. On September 5, 2002, the Honorable Edgar B. Bayley consolidated the two cases
for purposes oftrial.
20. As a result of the aforesaid accident, minor Plaintiff, Halie Duncan, suffered
trauma injury to her back, neck, ann, and head, Halie treated at Holy Spirit Emergency Room on
August 19,2000. She was diagnosed with musculoskeletal back pain and was discharged home
with head injury precautions, Halie treated with her family doctor, Karen Campbell, M,D. at the
Mechanicsburg Family Practice Center on August 24, 2000. Dr. Campbell diagnosed Halie with a
cervical and thoracic strain secondary to motor vehicle accident. Halie has not treated since and has
recovered. A true and correct copy of her treatment records are attached hereto as Exhibit "B" and
incorporated herein by reference,
- 4-
Document #263049
" ~.IJ ~ ~. -,"
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21. Minor Plaintiff, Halie Doocan's medical bills in the amooot of $323.25 have been
processed for payment ooder Petitioner's automobile policy with Erie Insurance and there are no
outstanding medical bills to her knowledge.
22, Minor Plaintiff, Halie Doocan, was not employed at the time of the accident and
there is no wage loss claim in her name at this time.
23. Defendant, Joel Cummings' liability insurer has agreed to pay Two Thousand Five
Hoodred and 00/100 ($2,500.00) Dollars in full and final settlement of minor Plaintiff, Halie
Doocan's claims against both Defendants, A true and correct copy of the offer letter from
Progressive's attorney, Andrew Lehman, is attached hereto as Exhibit "C" and incorporated herein
by reference,
24. Petitioner believes that the acceptance of the offer in settlement of the liability claim
against Defendants would be fair and in the best interest of the minor Plaintiff, Halie Doocan
because of her limited injuries and treatment.
25. Counsel was retained by the Petitioner to represent the minor Plaintiff on a
contingency basis of twenty-five (25%) percent, which fee is fair and reasonable for the time and
effort expended on behalf of the minor Plaintiff, Halie Doocan, A copy of the Fee Agreement is
attached hereto as Exhibit "D" and incorporated herein by reference. Counsel has also incurred the
following expenses on behalf of the minor Plaintiff:
Medical records, Fast Photocopy.
Postage.
Long distance phone calls.
Court related expenses.
TOTAL.
$ 66.24
10.11
5.56
9.00
$ 90,91
- 5-
Document #263049
",..
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26, Petitioner respectfully requests that this Honorable Court approve the compromise
settlement of this claim in the gross amount of Two Thousand Five Hundred and 00/100
($2,500.00) Dollars, which Petitioner will receive directly for the benefit of the minor.
27. On approval, the Petitioner will sign the Settlement Agreement and Release, a copy
of which is attached hereto as Exhibit "E" and incorporated herein by reference.
28. Upon approval of the minor compromise settlement, the Petitioner also desires to
discontinue the action filed against Joel Cummings and Johnny K's, Inc., John Kritikos, individually
and Vd/b/a Johnny K's, upon receipt of the $2,500,00 to be paid on behalf of Defendants.
29. All Defendants concur with the filing of the Petition and also seek approval of the
. minor compromise settlement under the terms set forth above,
WHEREFORE, the Petitioner respectfully requests that this Honorable Court approve of
the minor Plaintiffs compromise settlement and enter an Order distributing the funds as follows:
(a) To be paid to Kimberly Duncan, who is appointed guardian of Halie
Duncan for the purposes of this Petition, the sum of $1,784.09 for the
immediate benefit ofHalie Duncan;
(b) To be paid to Metzger, Wickersham, P.C., for counsel fees, the sum of
$625.00; and
(c) To be paid to Metzger, Wickersham, P.C., for expenses, the sum of
$90,91.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By:
c'~ ;;;V
Clark D~re, Esquire
Attorney J.D. No. 68768
P,O, Box 5300
Harrisburg, P A 17110-0300
(717) 238-8187
Attorney for Plaintiffs
Dated: 3-~6~03
- 6-
Document #263049
'~
COMMONWEALTH OF PENNSYLVANIA
POLiCe ACCIDENT REPORT
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CERTIFICATION
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The copies of records for which this certification is made are true and complete
reproductions of the original or microfilmed medical records which are in the offices of the
Holy Spirit Health System. The original records were made in the regular course of business
at or near the time of the matter recorded. The certification is given pursuant to 42 Pa.C.S.
Ch. 61 Subch. E (relating to medical records) by the custodian of the records in lieu of his or
her personal appearance.
Patient:
Halie DUJlcan
SSN:
166-68-4040
DOB:
12/09/85
Medical Record No.:
Dated: q/~)/tV
ytvJ
of Holy Spirit Health System
~~~1~ed and ~2f1~~ before me
tl@Xr: day of~OOO.
NotaryPublic L(Yl~
My commission expires on:
Nptarlal Seal
'h~lIe L, Stouffer, NotBIY Public
\\1\ Bom, CUll\llGlIanQ Counl'l
. ',slon Expires Dee, ii, 2000
Document #: 185090,1
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CONSENT TO MEDICAL TREAtMENT .
"") I HEREBY CONSENT ANO AUTHORI~E H?tY Splnt HOspital, Its agents, and employees, to the rendering of medICal care, which may InclU<le
routine diagnostic procedures and such m~dlCal treatment as my allendlng or consuHlng phYSIcian considers to be necessary I also under,
stand It IS customary, absent amergency or:extraordlnary circumstances, that no substantial procedures will be performed upon me unless or
until I have had an opportunrty to diSCUSS th~m With a phySICian or other health care professional to my sabsfactlDn If I am a competent adult, I
have the nght to consent or refuse to consent I understand that the practice of mediCine and surgery IS not an exact sCience and that diagno-
SIS and treatment may Involve risks 01 InJury or even death and acknowledge that no guarantee has been made to me as 10 the results of any
examination or treatment In thiS Hospital
I understand many 01 the phySICianS on the ~taff of Holy Splnt'HOSpItal are not employees or agents of the HOSpital, but rather are Independent
contractors who have been granted the prMlege of uSing these facilities for the care and treatment 01 their pallents Further, I realIZe thIS
Hospital IS a teachIng Hospital and at the HOSpital areheakh care personnel In training who, unless expressly requested othBlWlse, may partICIpate
or may be present dunng my care as part qf their education SliII or motIon pictures and closed CirCUit monrtonng of patIent care may also be
used for educatlonal purposes, unless I expressly request otherwise
I understand that In order to ensura a safe environment for patIents, vISitors and staff all property on the premises of Holy Spl
subject to reasonable search and/or seiZure at any lime WIthout further nollce I . I
< nfl.as
RELEASE OF MEDICAL INFORMATION
I authorIZe Holy Splnt Hospital to release to: requesting health Insurance carner(s), their rei>resentallves and auditors, and any refemng health
care prOVldQrs, such dlagnos'uc and therap~ubc mformabon (including any mformatlon relatng \0 treatment for alcohol and substance abuse
and/or trealmentof psychlalrlc disorders. aod/or confidenbal HIV related Information. as may. be neoessary for them to determine benefit enb-
Ilement, \0 process payment clalm$ for health oare services prOVided dUring thiS hospllallZatlonltreatment episode, and for conbnUlng
careltrestment A i>hotocopy or carbon copy of thiS authorrzatlon shall be conSidered as effective and valid as the Original The underSigned
also authonzes MedIcare, when ai>pllcable, to release to another Insurance carner, upon therr request, medlOallnformatlon needed to make
payment upon Ihat claim
\ ooderntaml amI coosent Ihat \he manutamuler n\ afI'/ Implantable o6\l\oe lnserted by my phYSICIan ounng the COUNle 01 my su'9?"#~;>cedule
may be prOVided WIth my Identification Information, Including SOCIal secunty number, as mandated by Federal Law InitIals ~ "
INSURANCE ASSIGNMENT OF BENEFITS
I authOrize payment drrectly to Holy Sprrrt Hosi>llal and my treaMg phYSICians of all benefits i>ayable under my Insurance poliCIes }4oI~st8ll'l
I am responsible 10 the Hospital and physiCIans for all charges not covered by thiS assignment Initials ~ "'---
) STATEMENTTO PERMIT PAYMENT OF MEDICARE BENEFITS TO PROVIDERS, PHYSICIANS AND PATIENT
. I request payment of Authonzed Medlcale benefits to me or on my behalf jor any seNlces furnished me by or In Holy Spirit Hospltal mcludlng
phYSICian services I authorize any holder 01 medical and other Informatron about me, to release fc Medicare and Its agencies any Information
needed to deter"""" lI\6se benefits for related servIces Imtlals
MEDICAL ASSISTANCE RECIPIENT
My signatures certifies that I received a service or Items Irom Hcly Splrrt Hosi>ltaJ and Dr on the date listed below
I understand that payment for thiS service or Ilem Will be from Federal and State funds, and that any raise claims, statements, or docoments. or
concealment of malenal may be prosecuted under applicable Federal and Slate Laws I understand that certam tests and procedures may not
be reimbursed by Federal and Stale funds and that I may be responSible for non covered charges Also, I agree that If at the lime of service, If I
am not eligible for Medical Assistance, I WIll be responSIble for balances owed 10 Holy Splnt Hospital . InItials
I have read and und....stand each of the seolIons contained above. I understand that bY slgrung thlS dOcument, I am agreeing and
providing the authorization! consenl contained In each of the abt>ve sections wh my fnlllals are located. I have had the opportunI-
ty to esk ques ns regarding each 01 these sactlons and all such questlon..s a been.answered to my satisfaction.
SIgnature
Relationship 10 Patlenl
Witness
Time
Date
HOLY SPIRIT HOSPITh.L, CAMP HILL, PA
CONSENT FOR TREATMENT I R&LEASE OF llIFORMATlON
iNSURANCE ASSIGNMENT
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MBDkBC Ui61!D (11199)
CHART COpy
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ADM. DATE: 08/19/2000
CHIEF COMPLAINT: Motor vehicle accident with thoracIc back pain
HISTORY OF PRESENT ILLNESS: 14-year-old who was restrained nght front seat passenger
rear-ended by another vehicle The vehicle she was driving In then struck another vehicle
Their air bags were not deployed The child did ambulate after thiS event She IS complalfung
of mlclthoraclc back pain She has no other complamts
CURRENT MEDICATIONS: None
PAST MEDICAL HISTORY: EnVironmental allergies Allergy to Penicillin, causes anaphylaxIs
VITAL SIGNS: Nurse's notes reviewed
REVIEW OF SYSTEMS:
Constitutional
No weight loss, weight gain, fever, or chills
EY8& No VISion loss, eye pain, double VISion, glaucoma, or cataracts
ENT, No vIsion 1055, earache, diZZiness, nosebleeds, 51nU5 trouble, or sore throat
Cardiovascular No chest pain, palprtabons, swelling offeet, or heart murmur
RespIratory No cough, sputum production, wheezing, or coughing up blood
Gastrointestinal No nausea, vomrtlOg, diarrhea, constipation, abdominal pam, or rectal
bleeding
Genitourinary No blood In unne, painful Urination, or frequent urination
Musculoskeletal Mldthoraclc back pam
Skin No rashes, lumps, dryness, Itchiness, or sores
Neurological No diZZiness, blackouts, seizures, paralySIS, numbness, or tingling
CONSTITUTIONAL: In general thiS IS a very pleasaTrt14'year-old female who W8sInltlally
sitting 10 a chair when I first evaluated her
EYES: Conjunctiva Without discharge or injection lids Without leSIOns, PERRL
)
HOLY SPIRIT HOSPITAL
Camp HIli, PA
17011
EMERGENCY ROOM REPORT
Page 1 of 3
NAME Duncan, Halle J
MR# 201783
ROOM ER1
DR NOELLE ROTONDO, D 0
ORIGINAL
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NAME:
MR#:
Duncan, Halie J
201783
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ENT: Ears Tympanic membranes wIthout perforatIon, InJection, or bulging
Mouth LIPS, teeth, and gums normal
Throat Oropharynx without lesions or exudate Airway patent
Nose Nasal mucosa normal
Sinuses No SinUS tenderness
NECK: Supple, symmetrical, non-tender, no lymphadenopathy Trachea mldhne Thyroid nn<'
palpable
LUNGS: Normal respiratory effort Breath sounds equal No rales, rhonchi, or wheezes
CARDIAC: Regular rate and rhythm without murmurs, ectopy, rubs, or gallops No pedal
edema
GIfABDOMEN: Soft, non-tender, normal bowel sounds, no masses No hepatosplenomegal'l
SKIN: Normal color and turgor No rashes or leSions
EXTREMITIES: Patient with T7 and T8 midline tenderness to palpation
NEUROLOGICAL: Alert and onented to person, place, and time Cranial nerves Intact
Sensory and motor funcnon normal. Reflexes symmetncal
DIAGNOSTIC PLAN: My plan IS to obtain thoracIC spine films, although chnrcally I beheve the
patient's symptoms are more likely musculoskeletalm nature She was In the emergency
) department With her mother I Will be giving her head injury precautions
DIAGNOSTIC RESULTS: C-splne films are negatIVe
MEDICAL DECISION MAKING AND COURSE IN THE EMERGENCY DEPARTMENT
discharged the patient home with head injUry precautions I believe the etiology of her
symptoms are most likely secondary to a tooraclc strain as a result of the motor vehicle aCCident
and IS most likely IS musculoskeletal In nature
DIAGNOSTIC IMPRESSION:
back pain
1 Status post motor vehicle accident With musculoskele\;\'
DISCHARGE INSTRUCTIONS:
1 Head InjUry precautions
'~ )
HOLY SPIRIT HOSPITAL
Camp HIli. PA
17011
EMERGENCY ROOM REPORT
Page 2 of 3
NAME Duncan, Halte J
MR# 201783 .
ROOM ER1
DR NOELLE ROTONDO, D 0
ORIGINAL
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-NAME:
MR#:
Duncan, Halle J
201783
NRllb
DOC # 77398
o OSf19J2000
T 08/21/2000 558 P
009373
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NOELLE ROTONDO, D 0
Page 3 of 3
HOLY SPIRIT HOSPITAL
Camp HIli, PA
17011
EMERGENCY ROOM REPORT
NAME Duncan, Halie J
MR# 201783
ROOM ER1
DR NOELLE ROTONDO, D 0
ORIGINAL
Initial Lab So X-Ray Orders:
LAba; UrlM Spec/mil".
r 1 Acetaminophen [ ] ESA
[ 1 Alcohol [ ] Glucou
( ] Amylaselllpas8 [ 1 HCGS
l 1 P.PTT i I L1\I6r
[ ] Blood Culture.:; Prohle
[ JBMP J Lytes
I I CSCP ] PTP
[ ] eMP 1 Salicylate
[ I CRPl I Serum Acelone
[ 1 Digoxin I Theophylme:
! I Dllantln 1 Thyroid Profile
Radiology
[ I AbdtOCstr SeI1$8
{ lA.nkl", R l,.
[ ] ClaYlcl. R L
[ 1 Carv Spin. La(ara]
[ I C,rv Spine Rou~n&
[ 1 Chest Rtn I Port I TPA
[ lEIbow R L
[ jF"sOlal
[ )f:'e.mur R l
( IFklQEK R L
[ 11=001 R L
r I Forearm R L
[ ]Hand R L
[ ]Htp R l
[ Iflu""",,, R L
[ (Kn.. R l
[ 1 Other
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113.1~.qr
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Billing CI...lflcotlon:
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\.I1lrNel.~ \ lena I
l 1 Lavel III
( lLltvellV
[ lL.svelV
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lVQScan
101l18r
] Tax Screen
( ]UN"lOTox:Screen
J Th~ombolyl:lc Labs
~ Typ~ .& CI'O$$ _* of unll'S.
I Type & Scroon
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JUllneoC&S
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1 Other
[ jKUB
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[ ]Mandlbllll
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[ 10"'" R L
[ 1 Pal"'1S
[ J "Y"CQnun IVP
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[ I Medical Non-Emergency
Holy Spirit Hospital
Camp Hill, PA
John R Dtetz Emergency Center
PhYSICIan Order Sheet
:lOe-ECV REV 11199 JO SA /.lID
CHART =py
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Medications/IV's I Additional Orders
Time
IV: NSSI DSWI LRI D5/.45NS1 D5,9NS
lnfusa at ccJhour.
[ ] Obtain old records,
Initials:
Initials:
Initial.:
Initlala:
Slgnatur,,,
Signature:
Signature:
Signature:
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Signature:
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Log-In Time () . 0 2..-
Tnage Tune
TIme to Exam Room
Time returned from Tna
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Age:
lalo [IBLS [JALS [I
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Command [ ] WheelchaJf/Carned
....
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lent [ 1 F.mllylS 0. I 1 Record [I EMTJParamedte
Temp q ~ ~Ull!e' q ~esplraUon8: 7.-0
8/P.
AllerglesIReaetlons:
LalexaJlergy~ []V
ImmumzetlonsUTD []N I]Y LastTelanus: LMP Welght'_"""'leI"Umale(lIporllnenl)
Has pa~ent been exposed In the l'iist m011lh 10 measles, chickenpox orl'~ [ ] Y [ ] UNK
Are there Advance D"ecllve~N/A [IN [JY Are ccples avOllable? [J N1A [IN []V (Attached [IN I jYj
Extremity Ev.luatJon: TrJaged to racUologyfo-r
Deformity YesfNo SkInT"",p WannfCool DI.~Puf:aa PnMentJAbeent Edema Yes/No
SldnCoJor Pmk/C)'ano!:lcltilottled Pain (1-10) P.,...u,~ P1'&S6'ntlAbsent Ecchymtnb: Yes/No
Capillary f'm Normal I Delayed lm.nrenUon
Visual Acuity:
ObJflcll""
o.D,
os
o U. _Corrective Lonaes
Ian temperature & color WNL
Yn' J. ~- \.)...(
o ~ ReSpirations Symmetnca.l.&
)
Vital sIgns
Medications
[ I Oxygen [I NC [I Mask _llMln
[ IIV BoIn Gauge
MedlcattonJDo re uen
Immob,liza""" [ J CtO [ I Backboan:J I I C-CoIlar I I Splint
[ J Airway [] Nasal [] Oral I J ET II
Site
utOo
IcatlonJDoseJF uen
lalit Dose
Past MedlClll/Sufglcal History:
DestInation: [ ] Urgl [] ER In
triage assessment completed lit
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[ 1 Old Records Sent
~ Hrs Transler d to
Sa11sfactory I 11m ~ d
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at at~
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Holy Spirit Hospital
Camp Hill, PA
John R. Dietz Emergency Center
ECU Nursing Assessment
CHART COPY
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PhYsIcian Assessment
02 Satura.tlon
Lung Assessment
Visual AcUIty
DIagnostics " .,
EKG '"'!''' ."
Lab.
PCXAlPort C-Splne
Sent to RadIOlogy
Relurned from Radiology "",_;,L
proctdures
8esplratory Treatment "I' "',I,",''''''
Ice
Foley InSertIon
NG Iflsertlon
Wound Care
SpllntlOCUSI,ng/CrulOhe. "j.."",1
MI8ccJlIlneoulJ:
Peln SCele (0-10) " ,"il''''-'!
Level of Consclollsness
SldarBlls
Intake & Output
Patient Education Imo
other
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Slgneture ~.........4-
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CondltiDn Code_
o-No InflamatlOn
I-Edema
2A-Erythema
2S.Eochymos1s
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4-Hardn...
5,Warmth
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Holy Spmt Hospital
Camp Hili, PA
Emergency Pallent Documentation
)
205 ~CU Revised 5198 JO, SR, MD
1
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"
Holy ~plrlt l'Iospital
Department of Radiology and Diagnostic Imaging
Camp Hili, Pennsylvania 17011
(717) 763-2600
PATIENT,
MR#:
soe SEe
ORO OR,
PT TYPE;
ADM DATE,
LOCATION'
DUNCAN, HAlle J
201783
166-68-4040
ED GROUP M 0
E
08/19/2000
ER1.
DICTATION DATE: Aug 202000 952A
TRANSCRIPTION DATE: Aug 20 2000 11 11A
ARRIVAl DATE:
HOSP SERVICE" ER1
'''''FInal Report'"
EXAMINA.TION: THORACIC SPINE 72012. Aug 1&2000
COMMENTS INDICATION - back pain follOWing MVA
Examlnalton of the thoraCIC spine reveals no eVidence for fracture Alignment IS normal There IS no
abnormality of the paras pinal soft llssues
CONCLUSION, Normal thoraCIC spme
)
DICTATED BY: BARBARA KUNKEL M 0 J DlG
DATE OF EXAM: Aug 192000
SIGNED BY' BARBARA KUNKEL M D
DATEfTIME: Aug 20 2000 344P
~ 0 /0 0
)
Imaging Services Consultation
Page 1
~1";"'bM~ f UJI'ffiIl UiGl CENTER
. (7.17) 763.2316 ..- (717) 763-2424
. , '
The eX;LllllnatKm <UK! ~lmeut you have receIved 1II rho:: Emtcgtncy Cenler have bo:en ~ .,mergeney basil! .wily, and lite not mlCl1ded 10 be: a aubsatute f()r or ~ effort tp proVlCie
compJm medical c!ro rf you devdop new problems or oompllClUlOOli COOlact YotII' pby$Jcwa.JI1e !mergepc}' ('-cIl/Cr FoLLOW mE J:NS1'RUCTIONS CHECKED BELOW
Pad...! Inlo_, Patlont Inlonnatlon IIl9ot. C<)ntafn (,""",,"nt I~on 10 revlow and kMjI
( ) Abdornll1a1 p8l1'l { ) COfljuncbVtbs ( ) FEtVel'lPad Fe\lef { ) laceration
o Ak:chol ..a""" \) CaPO \) Au Il Neck st.o.n
( ) AllergIC rl1acllon ( ) C~ sbraslOlVfOl'&lgn cody ( ) Fracture. ( ) Nc-sebleed
OJl,slhma () C_ro",*,I" () Hoadocl>o I ) O<dis Madia
( ) &tck p.;\rl1 ! ) CrutCh wa~ng ( ) tieed InjUry ( J PsdIatnc: Head InjUry
( ) Brtes-Hum8J'llAnrmaVlflsect { ) Dlarrt1ea aOO VOl'TlItlngIP<<I Vtll'rllbr\g ( ) Hypertert810l1 ( ) Pechtric:: URl
OS"", ()DIUWAlo:1l1o'.""...."'''''''n ()/rnmun"".cmrrolarwa ()PIONO
( ) Chest Pain ( ) Febnle COlWulSIOh ( ) KIdney Stones { ) F\a.&:h
, ~ , ~
""
"",;",,-,:
'~.,' -'""'"-.i
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DISCHARGE lNSTRUC1'JONS
)
WOUND CAllE
( ) May gently w!tSh over wound In 24 hours Wrth soap and water or
peroxtde 00 I\Qt &03k In watai'
( ) Cnan9& dr.....g __dOlly ROdro" WIth BaC>\r_/N""""nn
and sterile dra5$lr\g
{ } Keep wound clean, dry, cowred () retanus/Dtpthena Booster given
SPRAINS, STRAINS, BRUISES, FRACTUIlES
( J EIev~ the In/Ured pall for_days 10 r<dues swelling
( ) Apply ~ pa.tU tntemutte"Uy 'fl'Jr _days to reduce $W~!t1'l9
( ) Aoo Wrap for support lor_days
( ) Wear sptmt {} At an times un":) lolIow-up
I JForliOl/V'Y"_
( ) U.. sllllil for oupport
( ) u.. =-. () A. _, _ht bOOn"llllO _.tad
( ) At all ~mos NO WEIGHT BEARING
)
NECK!llACI\
( ) Waar ceMCaI coUer for support for _days
( ) Rest, Bvard bending, llfllng, strenuoUs 8ctNlty for _ da.ys
( ) Apply moISt heat for mlnUles 1lrne.a dairy
begon_ In hours
ADDITIONAL INSTRUCT10Nll
( 1 Off ""'''''seI\ooI fu,m to
( ) L,ght t>uty unlll
Restnetrons
( J No gymIsports until
( ) Foliow IOstrucbons all WOOOnsn's Compell$8.tlol1 Form
( ) Waar '"fa patch lor hours
( ) ~ nose bload recurs, Ploch nose firm1\' for 5 minutes
continuously, (8tum If bleedlfl9 oot controlled
( ) Tho pres,,"bed anbOto110 may roduce the elfeob_ of
madlcallon \'Ou .... oumlnUy tai<lllil Che"" package
InstruetlO11S 0'1' consult 'With Phal'1't'\ilcl$1.
( )"The Interpra\aOOn a your X.Rays are preliminary reading
YOUr' fllms Will be re....t6wed by a radlologl!il You or )'OLIr
phV$lOlEtn WIll be oontac:ted Jf lhera IS a. OhanQa In the
cUagooa~
AddrtlO!\allnsllllctlO....
f.0+\f{J \1)') V\i\rt)(E;tfA v\1~\,,~
(?) "\(rtv r (l ('\" l-axkc ~I t~1\~
'\1(1* il\WC1~~1 (,t}I'n""~
, ,
HOLY SPlRlT HOSPITAL
(}~ur8
{) Sare Throo'
() Sprains. ana Strams
{ } Thteatel'led Ml.sosmage
<. J ToOthacho
( ) UR' and Col,,"
{ ) UTI and ~ye(onept'"lCs
(lOth...
MEDICATIONS
( ) con",ua p,"*,nt ma<I1ca11Ons aXOBlll
( ) U.. Advil (Ibllj)nlfan) or Tylenol as neOlled lor pain, Iev<lr
eooo~ng to package ,_ for oge, ...Ighl
( ) Use the follOWIng modoc"es ""co<<hng 10 oa_.
Instrud\tXl$
1
2
3
{ ) Thlt 1oflaiVlng'medtcfnes may CEIlJS8 drOWBUlGSS
00 NOT ORtl/E O!l OPERATE MI'.CHINERY WHILE T!\KING
fOLLOW..uP ThIs IS our recommendatIOn for follOW-up If your
"",uranoo (HMOI reqUI"'" a ph}'l1Qan ",famll for 9flOOIalty
oonsultatlon, IT IS YOUR RESPOOSIBtUTY TO OIlT NN TflE
NECESSARY APPROVAL
I ) Fo~ow,up WIth
m
{ )Urgl Cont...
( ) Family OoolOr
( IWorl<Not
deys.or
{ I Foltow,up
( ) Suture removal
( I CaU as &<>on .. poBStbIa tor appotntmant
( 11'",1\ up ~our X'!\ays from lhe P,adlology i:>apartman\ pt10f to
your follow-up sppo,ntmont Ca~ 7/;3._ to h've him.
featly
~ ) Se<J your pI1ys<:"'" or speaelet ~ not un;>roveG m
daY'
( J ReMn to En'oeIgoncy eomar 1f ~ou feel your oond11lon IS womofl1f1g,
esp",,,.I1\' ~
{ ) Your blood !:)ressore was e(evated Pfee.se have- It
rachaokod by your pI1y~_
. ( I Teet ,,",ulto; hava boon II'ven to you Tal<8 (116m ..,\l\ you 10
\he fo"ow-up appo!ntmont
Tast r8SlJIl5 glV<ln OCBC OCMP OEKG OX-RAY COPY
o BMP tJ RECORDS OOPV CHART 0 GLUC
<. I PA't1ENT VERBALIZES _ANlltI<<I
l'l,orilby._VIIodil" ~'flf,",,'" 11\G\fu<;Uoos'asld .
u_ \110m I und_nd I!1e.Ilhava hod emorgency
_nt!lll!lfandthaltmayllo__OIlflfmy
_ proIlIoms are 101_ or lreatod 1 WIll a_ for
foU(lw~up care as 1 have beep IllS\rvcted It 1$ your respon--
SIbIhty 10 nollly}'OUT pnm"iCa'{' PhJlll:" olthre "j
S1GNATUllI: .' ~'T' )}(P' i!
p. I or pen..blil P n (Oal.'
u"
,
SlGNATUIlE:
PIlY$OIBn
1.10100 Nur...RN
'OL Y SPIRIT 1l0SPlTAL EMERGENCY CENTER
..j NORTH 21ST STREET CAMP H1LL, P A. 17911.2$ (717) 763.2316
) ) Van,tha Abtah.... M D 038840L ( ) Roben H_I<. DO OS OO44OO.L
. ) Thomas A1dou~ M D Q17Q75B , ) Rlcl1ard Luley. M D O29960-E
) Salvatore Alfano. M D 0255021:. ( J PhtUtp Maguire, M D 015063-8
) Ramesh Aron. M D 016727E ( ) Law"nce Paul, M D IYl95Z4-L
) Gloo Daughtty DO 05006776E ( ) F...k Procopto, M D OO:l64J,E
) Jon Oubln, D 0 OS 00699lL ( ) Howard RUGI\1Ck., M D 040862-'l..:&
-- ..
l ) RanJana Sharma, M D 03I265-E
, ) DaVld Sptorne<, M D 023502-E
( ) Alan Tepbs. M D 01OO18.E
( ) Blaine !baUner. MD 057303.L
...... nand Z,m""'rmao, M D oo5636.E
. 'M_' ,
~ "" ,~,
oJ-.-i~,";[.)",,,_;,;,,_ ,
,-.,. . -~ --~-' "~' ~;,
( ) Elevate. tM InjUred p~lt for _ dayg, 'to redUce s.wenll19
. ( ).Apply ll,. paoks Inlenn41en1ly for _day. to redu"" aw_g
( ) Ace: wrap for suwort for _ da~
( ) Wear OJ:>l1nt () I\! oil ~mes uMllallow-op
( ) FDr actNIty a. needad
( ) u... ollng for ovpport
( ) U.. crutches () A, needod, weight boa1lng as ""_ad
( ) AI aII~""", NO WEIGHT BEARING
2
3
( ) "The following meltlClnM may cause dl"OWSlness
00 NOT ORlVl' OR oPERATE MACHINli:RYWflILE TAKING
)
NEpMlJlCK
( )WearO>MC8l00Warlor,opportlor_days
( )'Fle,r, aVOId boMltlg, Illt1ng, ,treOUDU' actNrty for _days
( lAppIy ll\OIst he.l for minutes I.,.,., daWy
beginning In OOum
~AL IIIST/IlICTIONS
( ) Off WOrl<lW,ooI hom 10
( ) UQhlDufy unld
RestncttOM
( I No gym/oporto unlll
l ) FQnow mBl:l\JctlOT'ls on Workmen's Compens<<tlon FOITh
( ) Wear .ye patch for ",,"IS
( ) II nose b1etKt rewts. pInCh nose firmlY for 5 mmlJtes
contmuously, l'Btum If bleeding not COMI"OIIed
( ) 1he prost;:rlbed Elntfblotle may ~ the ef1e.cwen81iS of
med1catton you -are curf8ntly taking ChecJ<.pac'kQge
_o"",,,_W1II1 PhaIlllllCISt
( ) The fnb!rp_1IOn 01 your X-Rays ..... prollln"""Y readl<l\j
Your fUms wlfl be reviewed by a f8.dlOlogl& Voo or your
physK:IM 'MIl ~ c:ontaded If 'theta IS a chllu'\ge tn the
dl8gMOSIS
FOU.OW..UP ThIs IS our r9CQl1tm~l'ldatlOn fQl' fuUow~up If yQur
tnsuraooe (HMO) reqUlf88 8. physician l'9ferral1or specialty
oone_ol\ IT IS YOUR RESPONSIBILITY TO OBTAIN THE
NECESSARY APPROVAL
( ) FollQw.up with
In
( ] Vrgl Ct:lnter
l ) Fal1\lly Oootor
( )Wori<Net
days for
( ) Follow-up
( }Suluf. '""""'"
( ) Cau .. soon as posoil>le tor "PP",nlmen'
( ) _ up your X-Ray. fromll1e Radu>Iogy Departmonf PlIO( to
\'Out fofiow-up _nt Calf 763.~6 to l1ave 11....
ready
( ) See 'Yl)ur phySlelan ar $pwallSt [f not Improved In
day'
( ) Return to Emergenoy Center If you faai' yOUt condltwn 1$ worsarnng,
_orallytf
( ) Your ~00d pr6S8Uf$ 'Was e(evo\Ited Please haY. It
_""ed by your phl'S1CNlIl
{ ) Test results haye been gJven to _you Ta'kft them wrth you to
the taBow-vp appommtl!nt
r.str......g_ OC8C OCMP OEKG OX,RAYCOPY
D8MP ORECQROS COpy CHART OGlUC
( ) PAllEIIT WRBAIJtP UNllellST ANOOIGl
1 he~ acknowltldge reoeJpt of thes:e lnstruenons and
LIfldomatld!hem I undemand 1hat I have had emergency
treatmonlllll1l!. aIld 1Ila11 may be ..- belore all at my
_I proQ/<l<m ... _ Q( treated 'WllI arrange for
fallow-up care as I ha~~.nstructed tt IS vourrespon.
Slblflt)' to nQUfy yo~r ~~7 \ Ph~an of thIS VI ,
SIG/U, TllRE, '
Pa ant or
Ad~ilJonallnsfruClIQllS
C'i'>+\fu! \~' ) \)\11) Vi Pa,.'.!', i~
C j /\?-0v \1\ \ \' ~iCAl w.. ( (r~ Is\f
, YIJ. 'N\, V~0~ 1\l(D I lll}/Y\ ~'oIJ
SIGNATURE
Phy$lclan
MOIOO NumRN
)
HOLY SPllUT HOSPITAL EMEIlGENCY CENTER.
5IJ3 NORTH ZlST STREET CAMP HILL, PA 17011-2288 (717) 763-2316
( ) V.mtha ,Abtllhun. M 0 038840L ( I Raben flymck, 0 0 OS OQ4400-L
t ) Tho_ Aldous, M D 011015B ( ) R>clwd Lutey, M D 029%O-f.
( ) SoI'MOO> AIf..o, M D 025502E . ( ) Pb1l11~ Magu"e, M D 015063.E
( ) RaIne.. ^""'" M D OI~n7E ( ) La_ce.Paul, MD 039524-L
(lG\eoDaughlty,DO 0S006176E (J.FrankProcoplO,MIl 003643-E
(llonDubln DO OSOO699IL (lHowlltdRud1l\ck,MD 0408~2.
DATE
II<
, l RIUl]ana Shsmu>. MD 031265,f.
1 ) Davld Spurner, MD 0235l12-11
( ) AllUl 'fepl~, M D 030018,E
t ) Elame Th.allner, M D OSi303.,L
l DllVld Zunniettnan, M D 005636-f.
SIGNATURE
DEAl!
REFIlL
TIMES
W ORDER i=OR A BRAND NAME PROO(,CT TO BE DCSlENSED, nre
PllES<:RIBl!R MUS!' HAND WRfl'E 'BRAND mlCSSSAR,"' OR 'BRAND
MEDlCALLY NOCBSSARY" IN TIlE "pAcll BELoW
):.AaEL
OsuaSlTl'llTION Pl!l<MlSSlBLE
, ,..
'1 --..
l. --1, 1 I') Nq 201783 E ..~.
"C\'.'ILlEJ
?I "O~E5TOWM qO~o E~i~
:~".' lC)OHG ?A 11055
2/~~/1~~) 6q1-JllJ
,~-~1-4J40 EO Gnoup
,> C I', ,K I ~ IISl
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."....1
, <
"
I
17! <5.....)
. .
,- >
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)
- )
_.
MECHANIC8BURG FAMILY PRACTICE CENTER
DUNCAN, HAllE
DOB: 12/09/1985
88#: 166.68-4040
08/24/2000
S: Patient was the passenger in the front seat of a motor vehicle and underwent an accident on 8/19/00
when car was hit from the rear by a drunk driver and pushed in the car in front of them. Their car was
stopped at the time. Patient did not have any head injury and does not recall any loss of consciousness.
Patient's primary concern is stiffness in her neck and her back.
00210054851
0: Musculoskeletal: Tender to palpation over the right side of her neck and cervical area and also
tenderness along the thoracic spine. Full range of motion of the neck, although she complains of
discomfort when turning to the right side.
Neuro: Cranial nerves II through XII grossly intact. Grip strength is weak on both sides.
A: Cervical and thoracic strain secondary to motor vehicle accident.
P: Patient advised to use ibuprofen, 3 tablets 3 x a day consistently for 1-2 weeks or Aleve, 2 b.i.d.
2. Given an Rx for Flexeri\.
3. Follow up p.r.n.
DO: 08/24/2000
DT: 08/25/2000 10:06 A/rrh
0#: 703956
KARE~ MD
)
11
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~
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NEAWN~:J<I
C) I
.GOVER, . . \
ATTORNEYS AT LAW ~
NOV 12 20021
2411 NORnl FRONT STREET
HARRISBURG, PA 17110
TELEPHONE (717) 232-9900
FACSIMILE (717) 236-9119
ANDREW C. LEHMAN
a1ehman@nealon-gover.com
November 7,2002
Clark DeVere, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
Re: Halie Duncan, a minor, by Kimberly Duncan, her mother and natural
guardian, and Kimberly Duncan, in her own right v. Joel Cummings
Docket No.: 2001-2398
Dear Clark:
Regarding the above matter, where do we stand regarding discovery, trial and/or
settlement? I note Progressive previously reached an agreement with you to settle this
law suit against Joel Cummings for $14,000.00 on behalf of Kimberly Duncan and
$2,500.00 on behalf of Halie. I recognize the dram shop issue has complicated this
matter, however I was wondering since the Court has consolidated the two cases if
there has been any movement on the dram shop side of this action. Please advise at
your earliest convenience. I look forward to hearing from you. Until then, I remain
Very truly yours,
NEALON & GOVER, P.C.
_..
Andrew C, Lehman
ACLllbs
cc: Tyeddie L. Desmarais, Progressive (Claim No.: 005212090)
;:~ii~)~~j~_~~~~~~~%tf00~..."~~~~.~t~;~~j~#.t,~~j~~~~~~7"O~""'.~S?S~~l~~*~~;;;"~
... ~
CONTINGENT FEE AGREEMENT
1,_1< l~r(1 j} 1f'l(">"", , individually and as parent and natural guardian of
\-talii'. llN\CP"l , retain and authorize the law firm of Metzger,
Wickersham, Knauss & Erb, P,C., to do whatever they deem necessary or desirable in order to
. represent my daughter in all claims for compensation and reimbursement for personal injuries, wage
loss, and economic and other damages resulting from an accident that occurred on
A08~~1- l~ , UJoo
1
1. Attornev's Fees:
The fee of the attorneys shall be contingent as follows:
(a) Thirty-three and one-third percent (33 1/3 %) of gross recovery;
(b) SHOULD THERE BE NO RECOVERY BY SUIT OR SETTLEMENT,
SAID ATTORNEYS DO NOT HAVE ANY CLAIM AGAINST ME OF ANY KIND FOR
LEGAL SERVICES RENDERED.
2. Expenses of Litigation:
Actual expenses incurred on the business of the client shall be borne by the client
and my attorney shall be reimbursed out of the balance, after deduction of attorneys fees, of any
recovery for all legal expenses incurred in the prosecution of this claim which have not already been
paid by me.
I do hereby agree to pay all expenses incurred by my attorney in the preparation and
presentation of this case and do understand that these expenses include, but may not be limited to,
costs of medical reports and records, stenographic expenses connected with depositions, expert
witness fees, photocopying charges, and mileage charges connected with the rendering of legal
services. I understand that I am responsible for payment of these expenses regardless of the
eventual outcome of the case and further understand that if my attorney deems it necessary, I may
be asked to advance these costs prior to the fucurring of any such expenses or the scheduling of any
deposition.
Document #: 182430.1
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3. I hereby further agree that my attorney may charge me reasonable additional
compensation if it is necessary to try the case more than once, if the case is appealed, or if
proceedings in other courts are necessary because of the change of circumstance of a party or for
otherreasons.
4, I hereby further agree that my attorney is hereby authorized to bring suit or to settle
and compromise the claim, to execute all documents pertaining thereto, and to do alllawfu1 acts
requisite for effecting the claim on my behalf.
5. I further authorize my attorney to payout of any proceeds of settlement or trial any
unpaid medical bills for treatments or services made necessary by the injuries sustained in this
accident and any workers' compensation liens.
6. I agree that my attorney accepts this employment on the" condition that he will
investigate this claim, and if it appears to be a recoverable claim, he will proceed to handle the
claim; but if, after investigation, the claim does not appear to be recoverable, said attorney shall then
have the right to rescind this Agreement.
7, I hereby further agree that if I decide to terminate this authority before any
settlement is offered or any award is obtained the fIrm shall be entitled to reasonable compensation
for all work done on the case up to that point. I agree that reasonable compensation for Clark
De Vere, Esquire, or any other attorney involved in the handling of this case, shall be One HlUldred
and Thirty-Five Dollars ($135..00) per hour, or such higher rate as shall constitute his standard
billing rate at the time that the work is performed.
8. I agree that my attorney may withdraw from this case at any time after reasonable
notice to me, and I agree to keep him advised of my whereabouts at all times and to cooperate at all
times in the preparation and trial of this case, to appear upon reasonable notice for depositions and
Court appearances, and to comply with all reasonable requests made of me in connection with the
preparation and presentation of this case.
Document #; 182430.1
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IN WITNESS WHEREOF, I have signed below on this 1.5ray of August, 2000.
v11{~-l1l14Y). ~~
./' C IENT: "
METZGER, WICKERSHAM, KNAUSS & ERE, P.C.
~ --:....../ ,
ATTORNEY: Clark De Vere, Esquire
Document #: 182430.1
- 3 -
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RELEASE OF ALL CLAIMS AND SETTLEMENT AGREEMENT
Adult and Minor
For the consideration as outlined below which is hereby acknowledged and also for future
acknowledgment, I/we release and discharge, and for myself/ourselves my/our heirs,
representatives, executors, administrators, successors and assigns, do hereby remise, release and
forever discharge Joel Cummings, Johnny K's, Inc., John Kritikos, individually and Vd/b/a
Johnny K's hereinafter referred to as the releasee(s), hismer/their/its heirs, executors,
administrators, liability insurers, successors and assigns, of and from any and all causes of
action, suits, judgments, claims and demands of whatsoever kind, in law or in equity, known or
unknown, which Ifwe now have or may hereafter have, and/or which a minor Halie Duncan, now
has or may hereafter have arising from the claimed legal liability of releasee(s), which liability
releasee(s) expressly deny(ies), arising from or by reason of any and all bodily or personal injury
and/or property damage known and unknown, foreseen and unforeseen which heretofore
hasmave been or which hereafter may be sustained by me/us or the minor aforementioned arising
out of the accident on or about August 19, 2000, at or near the Carlisle Pike (US 11 North), in
Hampden Township, Cumberland County, Pennsylvania.
IfW e agree that the consideration set forth below is specifically applicable to and paid to me/us
with respect to any and all damage to any property, either real or personal, of mine/ours or the
minor aforementioned, and with respect to any and all personal or bodily injury of mine/ours or
the minor aforementioned, whether presently known or unknown, foreseen or unforeseen or
which may subsequently develop and the consequences thereof, all as arising from. the
aforementioned accident
IfWe further agree that the consideration set forth below is specifically applicable to and paid to
me/us with respect to any right of contribution the I/we or the minor aforementioned may have
against the releasee(s), hismer/their/its heirs, executors, administrators, insurers, successors and
assigns relative to claims of others that may be brought against me/us or the minor
aforementioned by reason of said accident
I/We further agree that the consideration set forth below is specifically applicable to my/our
agreement that Ifwe or the-minor aforementioned will not join nor attempt to join the releasee(s),
hisfher/their/its executors, administrators, insurers, successors and assigns in any capacity, in any
action that may be brought against me/us or the minor aforementioned arising out of said
accident
Should it appear that two or more persons or entities are jointly and severally liable for the said
injuries to person or damage to property arising out of said accident, the consideration for this
release shall be received in complete satisfaction to the full extent of the fault of releasee(s),
whether proportionally allocated or total, as ultimately determined under the law and for which
releasee(s) are found liable,
In consideration of the below payment, Ifwe for myself'ourselves and my/our heirs,
representatives, executors, administrators, successors, and assigns do hereby:
Page 10/3
Document #: 262188.1
"
(1) agree to indemnify and hold forever harmless the releasee(s) and
hislher/its/their representatives, administrators, or assigns, against loss
from any and all further claims, demands or actions that may hereafter be
made at any time or brought against the releasee(s) by me/us or the minor
aforementioned, or by anyone in our behalf for the purpose of enforcing a
further claim, for which this release is given;
Upon execution and delivery of this Release and Settlement Agreement to releasee(s)
representatives, Progressive will deliver on behalf of Joel Cummings the sum of $14,000.00 for
Kimberly Duncan and the sum of $2,500.00 for Halie Duncan. In addition, Johnny K's, Inc. and
John Kritikos, individually and tld/b/a Johnny K's will deliver the sum of $10,000.00, said sums
to be delivered to counsel for the Duncans, at his Harrisburg office address, within 10 days of the
delivery of the signed Settlement Agreement and Release. Within 10 days of delivery of the
settlement amounts, the Duncans' counsel will discontinue the civil actions filed against
releasee(s) as a result of this accident.
I/We specifically preserve and do not remise, release or discharge any claim andlor action I, he,
she or they may have against any medical provider for any treatment or lack of treatment,
including malpractice, and any claims, actions andlor right I, he, she or they may have for
medical payments coverage, first party benefits, income benefits, health insurance, disability
benefits or other similar benefits from any entity, but specifically excluding the releasee(s) and
their liability insurers.
The parties acknowledge that Kimberly Duncan has received the sum of $25,000,00 from her
underinsured motorist carrier Erie Insurance ExchangelErie Insurance Company, In addition,
Progressive has paid a prorated portion of the Duncans' property damage. The monies received
from Erie and Progressive are in addition to the sums set forth herein and there will be no offset,
deduction or reduction from the amounts due herein for the amounts paid by Erie and
Progressive.
The payments totalling $26,500.00 constitutes damages on account of personal injury or sickness
in a case involving physical injury or sickness within the meaning ofIRC s104(a)(2).
This Release is executed in accordance with the Court Order dated _, 2003, in the
Court of Common Pleas of Cumberland County at Docket No. and will be
interpreted consistent with that Order. A copy of the Order is attached hereto as Exhibit "A" and
incorporated herein by reference.
This Release shall be interpreted in accordance with Pennsylvania law,
Page 2 of3
Document #: 262188.1
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Intending to be legally bound thereby, WITNESS my/our hand(s) and seales) this _ day of
,2003.
WITNESS
(Seal)
Document #: 262188.1
Kimberly Duncan, individually and as parent and
natural guardian ofHalie Duncan
Page3 of 3
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VERIFICATION
I, Kimberly Duncan, individually and as parent and natural guardian of Halie Duncan, have
read the foregoing Petition for Approval of Minor Plaintiffs Compromise Settlement and do swear
or affirm that the facts set forth in the foregoing Petition 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.A ~4904, relating to unsworn falsification to authorities.
Dated: g I H I {)!Y
I I
, as parent and natural
e Duncan
Document #265049
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VERIFICATION
The undersigned hereby certifies that he is the attorney for Plaintiff, Balie Duncan, by
Kimberly Duncan, parent and natural guardian, and that the facts in the foregoing Petition for
Approval of Minor Plaintiff's Compromise Settlement are true and correct to the best of his
knowledge, information and belief, and that said matters relating to the Petition for Approval of
Minor Plaintiff's Compromise Settlement are as known to the undersigned as to the clients, Plaintiff,
Balie Duncan, by Kimberly Duncan, her parent and natural guardian, said knowledge being based
upon information contained in the attorney's file in this matter, and further states that false
statements herein are made subject to the penalties of 18 Pa. C.S.A. S4904 relating to unsworn
falsification to authorities.
<:..::.--/~ __7/
Clark D€Vere, Esquire
Dated:J'.>1.0_0.s:
Doc..'Ument #263049
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C.,
hereby certify that I served a true and correct copy of the forgoing document with reference to the
foregoing action by first class mail, prepaid postage, this 26th day of March, 2003, on the following:
Joel Cummings
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
241 I North Front Street
Harrisburg, PAl 711 0
Johnny K's, Inc., and John Kritikos, individually and tld/b/a Johnny K's
c/o William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
P.O. Box 261
Carlisle, P A 17013-0261
~~..;;;;;:-;.. ..?
Clark De V ere, Esqmre -'--
Document #263049
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-2398 /
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERL Y
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
NO. 01-6515 Civil Term
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and tld/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
PROOF OF DEPOSIT
In accordance with Pennsylvania Rule of Civil Procedure 2039 and Judge Edgar B.
Bayley's Order of March 31,2003, the undersigned is filing a photocopy of the Certificate of
Deposit of $1,784.09 and a Uniform Transfers to Minors Account Agreement of the settlement
proceeds in the above matter which were deposited on April 25, 2003 at the Allfrrst Bank in the
name of the minor Halie Duncan, by her mother and natural guardian Kimberly Duncan, "no
withdrawal shall be made by Halie Duncan before she obtains her majority unless by Order of a
267904-1
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Court of Competent Jurisdiction." The photocopy of the Certificate of Deposit and Uniform
Transfers to Minors Account Agreement are attached hereto as Exhibit "A".
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By:
~ ' -;--.,
Clark De ere, Esquire
Attorney J.D. No. 68768
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Attorney for Plaintiffs
Dated: April.1'f, 2003
267904-1
III allnrst.
Allfust Bank
l CASH DOLLARS :CS'ITS
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D~OSIT TO
E] RETAIL 0 .cOMMERCIAL
o IRA RETIREMENT ACcqUNl (CHECK.,?N~.f3ELOW)
o REGULAR ROLLOVeR q TRANSFER
E KEOGH rCORP.- CONT. YA._
RD H A ROTH CONVERSION IRA
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THIS DEPOSIT SUBJECT TO ALL THE RULES, REGUlATIONS AND
CONomONS OF ACCEPTANCE OF DEPOSIT OFTHI; 8I\NK -
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UNIFORM TRANSFERS TO MINORS ACCOUNT AGREEMENT
Onginatin Branch: HAMPDEN
Completed By: mar ie fealtman
Stmklng ServIces Requested
product
Quarterly Statement Savings (0031)
PENNSYLVANIA
137 Date: 04/25/2003 Branch of Record: 137
Em loyee Number: 014730 Source Of Funds: OTHBK
Profitability Center: 05381 Opening Reason: CUS
Account Number Checks Account Personalization
80000002187558
B Pre-Authorized Transfer
Savin s Overdraft Protection
o Visa Check Card
DATMCard
o Visa Gold Check Card
NPoME; rOOTRACT CODE: NAME: " I CONTRACT conE:
HAllE J DUNCAN PUTMA KIMBERLY M DUNCAN CUS
ADDRESS: ADDRESS:
321 HOGESTOWN ROAD 321 HOGESTOWN RD
ADDRESS: ADDRESS:
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crTY: I STA;~ ZIP CODE: CITY: ( STAT~: ZIP CODE:
. MECHANICSBURG 17050 MECHANICSBURG PA, 17050-3121
SSN: IBI~~,DATE: I HOME PHONE: WORK PHONE: SSN: I ~IRTH DATE: 11 HOME PHONE: WORK PHONE:
166-68-4040 ' 1717\697-3333 197-52-2945 09/28/1961 i /717\697-3333
EMPlOYER: EMPLOYER:
w w\\1\omwo\ -5\10\\ \x., Mae., R\ \b\\6'
DUlllO\) \:JeW~ to\ie.- OD\-d\~ hu \\I~OO4t\
V\\\ef,b Qj 0IQ.ef ~ Cl LOur-\- Of
WliIVe:Je,()CQ." -Jur\5cllGl1 on
, ':' SPECIAL MAILING ADDRESS
NAMe:.... .'
ADDRESS:
ADDRESS:
ADDRESS:
CITY:
STATE: I ZIP CODE:
RESTRICTION: Only one Minor and one Custodian per account.
This agreemeni' applies to the accoontliuri,ber(s)li~ted above (Account) at Allfirst Bank (Bank). The ,Account is
established by 'lheabove Custodian for .the Minor na(T1edatlOve, 'under Pennsylvania Uniform Transfers to Minors Act.
The Account is subject to the order of.lhe Clistodianonly. By signing this agreemenll acknowledge receipt of and agree
to the terms and conditions of the Bank's Rules for Consumer Deposit Accounts and the Bank's Funds Availability,
Electronic Funds Transfer and Account Disclosures. '
SUBSTITUTE W-9 Under penallles of perjury, 1 cerlify that: Tax Payer Identification Number: 166.684040
(1) The number shown on this fonn Is my correctlaxpayer Identification number (or I am waiting for a number to be Issued to me), and
(2) I am not subject to backup withholding because: ,
ta) I am exempt from backup withholding, or
(b) I have not been notified by the Internal Revenue Service (IRS) that I am SUbJect to backup withholding. as a result of a failure
to report all interest or dividends, or
tc) the IRS has notified me thai I am no langer subject to backup withholding. '
(You must cross out Item (2) above if you have been notified by IRS ;that' you are currently subject to backup withholding because of underreportlng
Interest or dividends on your tax retum.) The name and TIN cerllfled llim'be used for IRS reporting on this account. .. '"
Signature: Date:
Signature:
YS.2BOBA-0111
.
DISTRIBUTION
COpy TO CIS MAil CODE: 50-1,.120 COPY TO CUSTOMER
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2800
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80000002187558
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C.,
hereby certify that I served a true and correct copy of Plaintiff's Proof of Deposit with reference to
the foregoing action by first class mail, postage prepaid, this t:1 '9<-day of April, 2003 on the
following:
Joel Cummings
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
2411 North Front Street
Harrisburg, PA 17110
Johnny K's, Inc., and John Kritikos, individually and tld/b/a Johnny K's
c/o William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
P.O. Box 261
Carlisle, P A 17013-0261
The Honorable Edgar B. Bayley, Jr.
Cumberland County Courthouse
1 Courthouse Square
Carlisle, P A 17013
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
K'~ . -::>
Clark DeVere, Esquire
267904-1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-2398
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6515 Civil Term --
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and tld/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
PROOF OF DEPOSIT
In accordance with Pennsylvania Rule of Civil Procedure 2039 and Judge Edgar B.
Bayley's Order of March 31, 2003, the undersigned is filing a photocopy of the Certificate of
Deposit of $1,784.09 and a Uniform Transfers to Minors Account Agreement of the settlement
proceeds in the above matter which were deposited on April 25, 2003 at the Allfrrst Bank in the
name of the minor Halie Duncan, by her mother and natural guardian Kimberly Duncan, "no
withdrawal shall be made by Halie Duncan before she obtains her majority unless by Order of a
267904-1
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Court of Competent Jurisdiction." The photocopy of the Certificate of Deposit and Uniform
Transfers to Minors Account Agreement are attached hereto as Exhibit "A".
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By:
c;;z......v ' -:---,
Clark De ere, Esquire
Attorney I.D. No. 68768
3211 North Front Street
P.O, Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Attorney for Plaintiffs
Dated: April~ 2003
267904-1
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IJ allfirst'
Allfirst Bank
DATE 1\:' :,', '" :j"
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ACCOUNT 1:ITLE I OWNER
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THIS DEPOSIT SUBJECT TO ALL THE RULES, RE!3Ul,AtlQNS AND
CONDITIONS OF ACCEPTANCE OF DEPOSIT OF THE BANK.
: CENTS
DEP051TTO
cJ RETAIL 0 COMMERCIAL
D IRA RETIREMENT ACCOUNT (CHECK ONE !3ELOW)
ROLLOVER 0 TRANSFER
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ROTH CONVERSION IRA
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UNIFORM TRANSFERS TO MINORS ACCOUNT AGREEMENT
PENNSYLVANIA
Originating Branch: HAMPDEN 137 Date: 04/25/2003 Branch of Record: 137
Completed By: marale fealtman Emplovee Number: 014730 Source Of Funds: OTHBK
lIanklng Services Requested I Profitability Center: 05381 Opening Reason: CUS
Product Account Number Checks Account Personalization
Quarterly Statement Savings (0031) 80000002187558
I B Pre-Authorized Transfer B Visa Check Card D Visa Gold Check Card
Savings Overdraft Protection ATM Card .
NAME: ICONTRACT CODE: NAME: c I CONTRACT COOE:
HAllE J DUNCAN PUTMA KIMBERLY M DUNCAN cus
ADDRESS: ADDRESS:
321 HOGESTOWN ROAD 321 HOGESTOWN RD
ADDRESS: , ADDRESS:
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,ADDRESS: ADDRESS;
"
CITY: I STA;~ ZIP CODE: CITY: ISTA;A ZIP CODE:
MECHANICSBURG 17050 MECHANICSBURG 17050-3121
SSW: I?~T~\DATE: I~~MEPHONE: WORK PHONE: SSW: I ~IRTH DATE: II HOME PHONE: WORK PHONE:
166-68--4040 ,~~ 717)697-3333 197-52-2945 09/28/19611 (717\697-3333
~MPLOYER: ' , EMPLOYER:
~Q \U~dmw(\\ .5\\0\\ ~ MOe- 'Dv\ \t\\\e;
DUIIlQ\) txW(e., b~ oD\-Gl\(f.') hu tiI~oo4t\
V\i\ef;f;> ~ orG\eJ Oi- Cl LOur-\- Of
LOl\\veJ4\(Q-"j\Jr~d\C.J1on
., . SPECIAL MAILING ADDRESS
NAME: .
ADDRESS:
ADDRESS:
ADDRESS:
CITY:
STATE: I ZIP CODE:
"
RESTRICTION: Only one Minor and one Custodian per account.
This agreemenf applies to ihe accoant rtumber(s) listed above (Account) at Allfirst Bank (Bank). The Account is
l)stablished by the. above Custodi<ln for . the ,Minor nal)1ed above, under Pennsylvania Uniform Trans1ers to Minors Act.
,he Account is subject 10 the order of the Custodian only. By signing this agreement I acknowledge receipt of and agree
to the terms and conditions of the Bank's Rules for Consumer Deposit Accounts and the Bank's Funds Availability,
Electronic Funds Transfer and Account Di$closures.
SUBSTITUTE W.g Under penalties of pe~ury, I certify Ihat: Tax Payerldentlflcalion N~mber: 166-68-4040
(1) The number shown on this form Is my correct taxpayer Identification number (or I am waiting for a number to be Issued to me), and
(2) I am not sUbject to bacl<up withholding because:
lal I am exempt from backup wlthholdln9, or
b I have not been notified bV the Internal Revenue SelVlce (IRS) that I am subject to backup withholding, as a result of a failure
to report all Interest or dividends, or
(c) the IRS has notified me that I am no longer subject to backup wlthholdin9. .
(You must cross oulltem (2) above 11 you have been notlfled by IRS thai you are currenUy subject to backup withholding because 01 und"""llOfllng
Interesl or dividends on your lax return.) The name and TIN certffied will be used for IRS reportln9 on this accoun!.
Signature: Date:
Signature:
.
YS,2808A-01\1
DISTRIBUTION
COpy TO CIS MAIL CODE: 501-120 COPY TO CUSTOMER
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law frrm of Metzger, Wickersham, Knauss & Erb, P.C.,
hereby certify that I served a true and correct copy of Plaintiff's Proof of Deposit with reference to
the foregoing action by first class mail, postage prepaid, this ,2 '91- day of April, 2003 on the
following:
Joel Cummings
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
2411 North Front Street
Harrisburg, P A 1711 0
Johnny K's, Inc., and John Kritikos, individually and tld/b/a Johnny K's
c/o William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
P.O. Box 261
Carlisle, P A 17013-0261
The Honorable Edgar B. Bayley, Jr.
Cumberland County Courthouse
I Courthouse Square
Carlisle, P A 17013
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
K"~ J
Clark De Vere, Esquire
267904-1
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-2398 ....--
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6515 Civil Term
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and tld/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' PRAECIPE TO SETTLE, DISCONTINUE AND END
Kindly mark the above actions by Plaintiffs Halie Duncan, a minor, by Kimberly
Duncan, her mother and natural guardian and Kimberly Duncan in her own right settled,
discontinued and ended.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By:
~~~~
Clark e V ere, Esquire
Attorney J.D. No. 68768
P.O. Box 5300
Harrisburg, P A 1711 0-0300
(717) 238-8187
Attorney for Plaintiffs
Dated: '1_ 3 a -oJ
267907-1
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C.,
hereby certify that I served a true and correct copy of Plaintiffs' Praecipe to Settle, Discontinue and
End with reference to the foregoing action by first class mail, postage prepaid, this .3..cL ""'tIay of
April, 2003 on the following:
Joel Cunrrnings
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
2411 North Front Street
Harrisburg, PA 17110
Johnny K's, Inc., and John Kritikos, individually and tld/b/a Johnny K's
c/o William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
P.O. Box 261
Carlisle, PA 17013-0261
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
~~-.:;;:;: --.......
Clark DeVere, Esqmre -
267907.J
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HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCAN in her own right,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
NO. 01-2398
CIVIL ACTION - LAW
vs.
JOEL CUMMINGS,
Defendant
JURY TRIAL DEMANDED
* * * * * * * * * * *
HALlE DUNCAN, a minor, by
KIMBERLY DUNCAN, her mother and
natural guardian and KIMBERLY
DUNCANinhillownrig~,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6515 Civil Term /'
CIVIL ACTION - LAW
vs.
JOHNNY K'S, INC., JOHN KRITIKOS,
individually and tld/b/a JOHNNY K'S,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' PRAECIPE TO SETTLE. DISCONTINUE AND END
Kindly mark the above actions by Plaintiffs Halie Duncan, a minor, by Kimberly
Duncan, her mother and natural guardian and Kimberly Duncan in her own right settled,
discontinued and ended.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By:
~~~
Clark eVere, Esquire
Attorney J.D. No. 68768
P.O. Box 5300
Harrisburg, P A 17110-0300
(717) 238-8187
Attorney for Plaintiffs
Dated: ,/_$0-03
267907-1
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CERTIFICATE OF SERVICE
I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C.,
hereby certify that I served a true and correct copy of Plaintiffs' Praecipe to Settle, Discontinue and
End with reference to the foregoing action by first class mail, postage prepaid, this .aa.... ""'<lay of
April, 2003 on the following:
Joel Cmnmings
c/o Andrew Lehman, Esquire
Nealon & Gover, P.C.
2411 North Front Street
Harrisburg, PA 17110
Johnny K's, Inc., and John Kritikos, individually and tld/b/a Johnny K's
c/o William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
P.O. Box 261
Carlisle, PA 17013-0261
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
c~~ ---......
Clark De re, Esqmre
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267907-1
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