HomeMy WebLinkAbout01-03837
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff
No. 2001-03837
VS.
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CIVIL ACTION - LAW c"f;
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JURY TRIAL DEMANa-1ia
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LINDA L. JOHNSON,
Defendant
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MOTION IN LIMINE OF DEFENDANT LINDA JOHNSON ~
COME NOW, Defendant, Linda Johnson, by and through her attorneys,
GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, and Michael B. Scheib,
Esquire, and files this Motion in Limine. Defendant Johnson requests the Court to:
1. Preclude Mention of Insurance;
2. Preclude any testimony that Mr. McWilliams suffered a knee injury as a
result of this motor vehicle accident;
3. Preclude any testimony that Mr. McWilliams sustained lost wages as a
result of this;
4. Preclude any mention that Defendant Johnson received a traffic citation as
a result of this matter; and
5. Preclude portions of Dr. Smarsh's testimony.
I. MOTION IN LIMINE TO PRECLUDE ANY MENTION OF INSURANCE.
The general rule in Pennsylvania is that evidence of insurance is irrelevant and
justifies a grant of mistrial. See Divelv vs. Penn Pittsburah Corporation, 332 Pa, 65,
A.2d 831 (1938); Paxton National Insurance Companvvs. Brickailik, 513 Pa, 627, 522
A.2d 531 (1987). The mention of insurance or the fact that the Defendant has
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insurance coverage for this lawsuit would prejudice the Defendant and would require a
mistrial. Phillips vs. Shoenberaer, 369 Pa. Super. 52, 534 A.2d 1075 (1975).
WHEREFORE, Defendant, Linda Johnson respectfully requests this Honorable
Court to enter an Order to preclude the parties, the attorneys and all witnesses from
using the word "insurance" during their testimony, or inferring, implying or testifying that
the Defendant is covered under a liability policy.
II. MOTION TO PRECLUDE ANY TESTIMONY THAT PLAINTIFF McWILLIAMS
SUFFERED A KNEE INJURY AS A RESULT OF THIS MOTOR VEHICLE
ACCIDENT
In the Complaint Plaintiff alleges that he suffered a knee injury which required
surgery as a result of this motor vehicle accident. The knee surgery was performed by
Dr. Kaneda, who is with Orthopaedic Institute of Pennsylvania. Dr. Kaneda will not
testify at the trial of this matter. Thus, there will be no testimony from Dr. Kaneda that
the knee surgery which he performed in June, 2000 was related to this motor vehicle
accident.
Plaintiff has video taped the testimony of Dr. Stephen Wolf. Dr. Wolf is also
associated with Orthopaedic Institute of Pennsylvania. Dr. Wolf did not treat Mr.
McWilliams for the knee injury. Dr. Wolf did not give any testimony regarding the knee
treatment. Similarly, he did not testify that the knee injury and/or knee surgery was
related to the motor vehicle accident which is the subject of this lawsuit.
Mr. McWilliams is not a medical doctor. He does not have the specialized
knowledge which will allow him to give any medical opinions. See Pa. R.E.701.
Accordingly Defendant Johnson requests that this Honorable Court preclude any
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testimony that Plaintiff McWilliams suffered a knee injury as a result of this motor
vehicle accident.
III. MOTION TO PRECLUDE ANY TESTIMONY THAT PLAINTIFF McWILLIAMS
SUSTAINED LOST WAGES AS A RESULT OF THIS MOTOR VEHICLE
ACCIDENT
Plaintiffs Complaint alleges that he has a claim for lost wages or loss of earning
capacity.
Plaintiff has renewed this allegation in his Pre-Trial Conference Memorandum.
Plaintiff, however, does not have a valid claim for lost wages.
Plaintiff had first party wage benefits from Erie Insurance Company. Plaintiff,
however, has not applied for first party wage benefits from Erie Insurance Company.
At this time Plaintiff clearly has not exhausted his first party wage benefits.
Section 1722 of the Motor Vehicle Code provides that in an action against a tort
feasor a person who is eligible to receive first party wage benefits shall be "precluded
from recovering the amount of benefits paid or payable" under this chapter. 75 Pa. C.S.
S1722.
As previously stated Plaintiff had first party wage benefits. Plaintiff has never
submitted any documentation to the first party carrier in order to receive these wage
benefits. Accordingly Defendant Johnson requests this Honorable Court to preclude
any testimony that Plaintiff McWilliams sustained any lost wages as a result of this
motor vehicle accident.
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IV. MOTION TO PRECLUDE ANY MENTION THAT DEFENDANT JOHNSON
RECEIVED A TRAFFIC CITATION AS A RESULT OF THIS MOTOR VEHICLE
ACCIDENT
Linda Johnson received a citation from Officer Michael Bingham as a result of
this motor vehicle accident. Ms. Johnson simply paid the citation. She did not contest
it.
Evidence that a party has received a traffic citation and has been convicted of a
traffic violation is inadmissible in a civil suit. Eastern Express. Inc. vs. Food Haulers.
Inc., 445 Pa. 432, 285 A.2d 152 (1971); Louahner vs. Schmelzerk, 421 Pa. 283, 218
A.2d 768 (191:16); Napolitan vs. Harpe, 432 A.2d. 608, 288 Pa. Super. 468 (1989);
Simpson vs. Robinson, 238 Pa. Super. 555, 361 A.2d 387 (1976); Shepard vs. Martin
Century Farms, 245 Pa. Super. 552, 369 A.2d 765 (189977). Accordingly, counsel for
Defendant Johnson respectfully requests this Honorable Court to issue an Order which
would preclude all parties, their counsel and any witnesses from making any mention of
the fact that Defendant Johnson may have been issued a traffic citation as a result of
this accident.
V. PRECLUDE PORTIONS OF DR. SMARSH'S TESTIMONY
Plaintiff sought treatment from a chiropractor, Dr. Smarsh. During his deposition,
Plaintiff introduced progress reports from Dr. Smarsh.
Dr. Smarsh was asked several questions which related to Mr. McWilliams'
prognosis. Defendant Johnson objected to these questions because Dr. Smarsh had
never disclosed any opinions about the prognosis for Mr. McWilliams (See pages 34 -
35).
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A copy of Dr. Smarsh's office notes was attached to the deposition transcript. Dr.
Smarsh's progress reports provide that the problems originated in March, 1999. Mr.
McWilliams' file does not contact a written report which sets out Dr. Smarsh's opinion
regarding Mr. McWilliams' progress as a result of the motor vehicle accident.
Rule 4003.5 (c) of the Rules of Civil Procedure provides that the direct testimony
of the expert at trial may not be inconsistent with or go beyond the fair scope of his
previously disclosed opinions. In the present case Plaintiff has never disclosed any
report, records or narrative letter which sets forth Dr. Smarsh's opinions as it related to
Mr. McWilliams need for future treatment or as it relates to this motor vehicle accident.
Rather, Dr. Smarsh's records indicate that the problem originated in March, 1999,4
months before this motor vehicle accident. In light of this, the testimony of Dr. Smarsh
should be precluded.
WHEREFORE, Defendant Johnson respectfully requests this Honorable Court to
grant this Motion to Preclude those portions of Dr. Smarsh's testimony.
GRIFFITH, STRICKLER, lERMAN,
SOL YMOS & CALKINS
BY:
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MICHAEL B. SCHEIB, ESQUIRE
Attorney 1.0. No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff
No. 2001-03837
vs.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
LINDA L JOHNSON,
Defendant
CERTIFICATE OF SERVICE
AND NOW, this J ~ ~ day of January, 2005, I, Michael B. Scheib, a member of the
firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have,
this date, served a copy of the Motion in Limine of Defendant Johnson by hand delivery to:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY:
Michae cheib, Esquire
Attorney for Defendant Johnson
Supreme Court J.D. No. 63868
110 South Northern Way
York, PA 17402
Telephone No: (717) 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff
No. 2001-03837
VS.
CIVIL ACTION - LAW
LINDA L. JOHNSON,
Defendant
JURY TRIAL DEMANDED
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SPECIAL VERDICT SLIP
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1.
Was the negligence of Defendant Linda Johnson a factual cause in Plaintiff
Michael McWilliams' harm?
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Yes
No
IF YOU ANSWER "YES" TO QUESTION NO.1, PROCEED TO QUESTION NO.2.
IF YOU ANSWER "NO" TO QUESTION NO.1, RETURN TO THE COURTROOM.
2.
State the amount of damages, if any, sustained by Plaintiff Michael McWilliams as
a result of the motor vehicle accident
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JURY FOREPERSON
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Taryn N. Dixon
Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square . Carlisle. PA 17013
Phone Melissa H. Calvanelli
(717) 240-6200 Assistant Court Administrator
(717) 697-0371
(717) 532-7286
(717) 240-6460 FAX
Civil Trials Bee:innine: January 18,2005
JUDGE BAYLEY
JURY TRIALS
COURTROOM #2
6.
Cody Matson (Minor Child) by his legal Guardian Melanie Sheaffer and Melanie
Sheaffer his mother, and Michael Matson, His father vs. Anita Butcher
02-3917 Civil Term
JACOBSEN / MARTS ON, DEARDORFF, WILLIAMS & OTTO
ESTIMATED LENGTH OF TRIAL: 2 days
JUDGE !lESS
JURY TRIALS
COURTROOM #4
5.
Cristina Lara vs. Kyle Strock
01-3956 Civil Term
MORGAN / BOOMSMA
ESTIMATED LENGTH OF TRIAL: 1.5 days
JUDGE OLER
JURY TRIALS
COURTROOM #1
1.
Barbara Jean Payne vs. Jeremy Bull vs. Carlisle Country Club
98-4094 Civil Term
SCHMIDT / HOYT / AYERS
ESTIMATED LENGTH OF TRIAL: 5-7 days
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JUDGE GUIDO
JURY TRIALS
COURTROOM #5
3.
Micheal L McWilliams vs. Linda L Johnson
01-3837 Civil Term
KOSIK / SCHEIB
ESTIMATED LENGTH OF TRIAL: 2-3 days
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MICHAEL L. MCWILLIAMS,
Plaintiff
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
LINDA L. JOHNSON,
Defendant
01-3837 CIVIL TERM
PRETRIAL CONFERENCE
AND NOW, this 22nd day of December, 2004, before Edgar
B. Bayley, Judge, present for the plaintiff was Michael E.
Kosik, Esquire, and for the defendant, Michael B. Scheib,
Esquire.
This case arises out of an automobile accident that
occurred on July 6, 1999, at the intersection of Route 15 and
Market Street in Camp Hill. Defendant's vehicle struck
plaintiff's vehicle from the rear. Negligence is admitted.
Plaintiff claims that he suffered a knee injury.
Defendant denies causation. Plaintiff seeks noneconomic
damages. He is a plumber and seeks a little over $6,000.00 in
additional costs for hiring help for him to complete jobs as a
result of his injuries. Defendant maintains that this is
actually a lost wage claim for which first party benefits have
not been exhausted. If plaintiff seeks to recover these claimed
amounts, he should file a memorandum of legal support with the
trial judge at the commencement of the trial.
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Edgar B. Bayley, J.
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Michael E. Kosik, Esquire
For Plaintiff
Michael B. Scheib, Esquire
For Defendant
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ANGINO & ROVNER, P.C.
Michael E. Kosik, Esquire
AttorneyID#: 36513
4503 North Front Street
Harrisburg, PAl 7110- 1 708
(717)238-6791
FAX (717) 238-5610
Attorneys for Plaintiff(s)
E-mail: mkosik@angino-rovner.com
MICHAEL L. McWILLIAMS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
V.
CIVIL ACTION - LAW
NO. 2001-03837
LINDA L. JOHNSON,
Defendant
JURY TRIAL DEMANDED
PLAINTIFF'S POINTS FOR CHARGE
AND NOW comes Plaintiff Michael McWilliams by and through his attorneys, Angino &
Rovner, P.C., and provides the following jury instructions which they move the Court to read to the
Jury.
chael E. Esquire
!.D. 36513
4503 N. Front Street
Harrisburg, P A 1711 0
(717) 238-6791
Attorneys for Plaintiff
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1. The Defendant has admitted negligence in causing any injury the Plaintiff may have
suffered resulting from the accident in question.
Thus, you are required to determine:
(1) What injury, if any, the Plaintiff sustained that was caused by the accident, and
(2) The amount of damages, if any, to which the Plaintiff is entitled as compensation for
such injury.
Pa. SSJ1 (Civ) 1.43.
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2. In civil cases such as this one, the Plaintiff has the burden of proving those
contentions which entitle him or her to relief.
When a party has the burden of proof on a particular issue, the party's contention on that
issue must be established by a fair preponderance of the evidence. The evidence establishes a
contention by a fair preponderance of the evidence if you are persuaded that it is more probably
accurate and true than not.
To put it another way, think, if you will, of an ordinary balance scale, with a pan on each
side. Onto one side of the scale, place all of the evidence favorable to the Plaintiff; onto the other,
place all of the evidence favorable to the Defendant. If, after considering the comparable weight of
the evidence, you feel that the scales tip, ever so slightly or to the slightest degree, in favor of the
Plaintiff, your verdict must be for the Plaintiff. If the scales tip in favor of the Defendant, or are
equally balanced, your verdict must be for the Defendant.
In this case, the Plaintiff has the burden of proving the following propositions: that the
Defendant was negligent, and that the Defendant's negligence was a factual cause in bringing about
the accident. If, after considering all of the evidence, you feel persuaded that these propositions are
more probably true than not true, your verdict must be for the Plaintiff. Otherwise, your verdict
should be for the Defendant.
Pa. ssn (Civ) 5.50.
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3. You will recall that Dr. Steven Wolf and Dr. Thomas Howard gave testimony of
their qualifications as experts in the field of orthopedics and Dr. Thomas Smarsh and Dr. Samuel
Garber gave testimony of their qualifications as experts in the field of chiropractic.
A witness who has special knowledge, skill, experience, training, or education in a particular
science, profession, or occupation may give an opinion as an expert as to any matter in which he or
she is skilled. In determining the weight to be given to the expert's opinion, you should consider the
qualifications and reliability of the expert and the reasons and facts given for the opinion. You are
not bound by an expert's opinion merely because he or she is an expert; you may accept or reject it,
as in the case of other witnesses. Give it the weight, if any, to which you deem it entitled.
Pa. ssn (Civ) 5.30.
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4. In general, the opinion of an expert has value only when you accept the facts upon
which it is based. This is true whether the facts are assumed hypothetically by the expert, or they
come from the expert's personal knowledge, from some other proper source, or from some
combination of these.
Pa. ssn (Civ) 5.31.
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5. The damages recoverable by the Plaintiff in this case and the items that go to make
them up, each of which I will discuss separately, are as follows:
(a) Past and future pain and suffering;
(b) Embarrassment and humiliation;
(c) Loss of enjoyment of life.
In the event that you fmd in favor of the Plaintiff, you will add these sums of damage
together and return your verdict in a single, lump sum.
Pa. ssn (Civ) 6.01.
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Conduct of the Trial. Actions for Bodily Injury or Death. Jury Instructions on
Noneconomic Loss.
6. In any action for bodily injury or death in which a plaintiff has raised a claim for a
damage award for noneconomic loss, the court shall give the following instructions to the jury.
The plaintiff has made a claim for a damage award for past and for future noneconomic loss.
\ There are four items that make up a damage award for noneconomic loss, both past and future:
(1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the
pleasures oflife; and (4) disfigurement.
The first item to be considered in the plaintiffs claims for damage awards for past noneconomic
loss and for future noneconomic loss is pain and suffering. You are instructed that plaintiff is
entitled to be fairly and adequately compensated for all physical pain, mental anguish,
discomfort, inconvenience, and distress that you find (he) (she) has endured from the time of the
injury until today and that plaintiff is also entitled to be fairly and adequately compensated for all
physical pain, mental anguish, discomfort, inconvenience, and distress you find (he) (she) will
endure in the future as a result of (his) (her) injuries.
The second item that goes to make up noneconomic loss is embarrassment and humiliation.
Plaintiff is entitled to be fairly and adequately compensated for such embarrassment and
humiliation as you believe (he) (she) has endured and will continue to endure in the future as a
result of (his) (her) injuries.
The third item is loss of enjoyment of life. Plaintiff is entitled to be fairly and adequately
compensated for the loss of (his) (her) ability to enjoy any ofthe pleasures oflife as a result of
the injuries from the time of the injuries until today and to be fairly and adequately compensated
for the loss of (his) (her) ability to enjoy any of the pleasures oflife in the future as a result of
(his) (her) injuries.
The fourth and fmal item is disfigurement. The disfigurement that plaintiff has sustained is a
separate item of damages recognized by the law. Therefore, in addition to any sums you award
for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment oflife, the
plaintiff is entitled to be fairly and adequately compensated for the disfigurement (he) (she) has
suffered from the time of the injury to the present and that (he) (she) will continue to suffer
during the future duration of (his) (her) life.
In considering plaintiffs claims for damage awards for past and future noneconomic loss, you
will consider the following factors: (I) the age of the plaintiff; (2) the severity of the injuries; (3)
whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the
ability of the plaintiff to perform basic activities of daily living and other activities in which the
plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration
and extent of the physical pain and mental anguish which the plaintiff has experienced in the past
and will experience in the future; (7) the health and physical condition of the plaintiff prior to the
injuries; and (8) in case of disfigurement, the nature of the disfigurement and the consequences
for the plaintiff.
OffICial Note: These instructions may be modified by agreement of the parties or by the court,
based on circumstances ofthe case.
IPa.B. Doc. No. 04-1626. Filed for public inspection September 3, 2004, 9:00 a.m.J
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7.
The Plaintiff is entitled to be compensated for any loss or reduction of future earning
capacity that will result from the hann sustained.
In order to determine this amount, you must fIrst determine:
( a) the total amounts that the plaintiff would have earning [during his/her life
expectancy][for the period during which he/she will be disabled] if the injury had not
occurred;
and you must determine
(2) the total amounts that the plaintiff probably will be able to eam [during his/her life
expectancy] [for the period of disability].
The difference between these two amounts is the Plaintiff's loss of future earning capacity
due to the injury.
The factors that you should consider in determining these amounts are:
(1) the type of work that the Plaintiff has done in the past or was capable of doing;
(2) the type of work, in view of the Plaintiff's physical condition, education, experience,
and age, that the Plaintiff would have been doing in the future had the hann not been
sustained;
(3) the type of work, based upon the Plaintiff's physical condition, education,
experience, and age that the Plaintiff will probably be able to do in the future, having
sustained the injury;
(4) the extent and duration of the Plaintiff's hann; and
(5) any other matters in evidence that you find to be reasonably relevant to this question.
The amount oflost future earning capacity should be expressed by you in a dollar amount.
Pa. ssn (Civ) 6.0lD.
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8. If you find that the Plaintiff's injuries will continue beyond today, you must
determine the life expectancy of the Plaintiff. [In death cases: In order to determine the damages
recoverable in this case, you first determine the number of years the decedent would have lived had
he/she not died as a result of the accident]. According to statistics compiled by the United States
Department of Health and Human Services the average life expectancy of all persons of the
Plaintiff's age at the time of accident, sex and race was 41.6 years. This figure is offered to you only
as a guide, and you are not bound to accept it if you believe that the Plaintiff would have lived
longer or less than the average individual in his/her category. In reaching this decision you are to
consider the Plaintiff's health prior to the accident, his/her manner of living, his/her personal habits
and other factors that may have affected the duration ofhis/her life.
Pa. SSJI (Civ) 6.21. Also. see. Life Expectancy, Vital Statistics of the United States, (1995) Life
Tables.
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9. The broad tenn "pain and suffering" includes a wide range of not only physical, but
also emotional reactions to rryuries and their consequences. In calculating damage for pain and
suffering, you may place a value on the following:
(a) Mental pain and distress;
(b) Fear;
(c) Shock;
(d) Emotional suffering;
(e) Anxiety;
(f) Frustration;
(g) Degradation;
(h) Loss of the feeling of well-being; and
(i) Limitation on activities.
Niedennan v. Brodskv. 436 Pa. 401, 261 A.2d 84 (1970); Walsh v. Brodv. 220 Pa. Super. 293, 286
A.2d 666 (1971); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960).
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10. In evaluating the amount to be awarded for pain and suffering, you should consider
that the infliction of pain means taking from a person what is his/her own to possess and retain --
namely health and well-being -- and that the law allows for compensation of this loss to the extent
that loss may be calculated in money damages.
Corcoran v. McNeal, 400 Pa. 14, 161 A,2d 367 (1960); Thomvson v. Iannuzzi, 403 Pa. 329, 169
A,2d 777 (1961); DiChiacchio v. Rockcraft Stone Products Co., 424 Pa. 77, 225 A,2d 913 (1967).
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11. The law provides that if a person goes through life with a reasonable degree of
happiness and without pain and is involved in a motor vehicle accident where hislher pre-existing
condition is aggravated or exacerbated, the accident victim may bring a claim for the aggravation or
exacerbation of the pre-existing condition.
Meyer, Law of Vehicle Negligence in Pennsvlvania. S 28.16, pp. 9-11 (1970); Freer v. Parker. 411
Pa, 346, 192 A.2d 348 (1963); Fretts v. Pavetti. 282 Pa. Super. 166,422 A.2d 881 (1980); Gever v.
Steinbronn. 351 Pa. Super. 536,506 A.2d 901 (1986).
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12. Damages should be awarded for all injuries caused by the accident even if:
(1) the injuries caused by the accident were more severe than could have been
foreseen because of the plaintiff's prior physical condition; or
(2) a pre-existing medical condition was aggravated by the accident.
If you find that the Plaintiff did have a pre-existing condition that was aggravated by the
Defendant's negligence, the Defendant is responsible for any aggravation caused by the accident.
Pa. ssn (Civ) 6.23.
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CERTIFICATE OF SERVICE
AND NOW, this day of January, 2005, I, Kathy A. Toney, an employee of Angino &
Rovner, P.C., do hereby certify that I have served a true and correct copy of the PLAINTIFF'S
POINTS FOR CHARGE in the United States mail, postage prepaid at Harrisburg, Pennsylvania,
addressed as follows:
Michael Scheib, Esquire
Griffith, Strickler, Lerman
Solymos & CalkiI1s
110 South Northenl Way
'(ork,PA 17402-3737
Kathy A. Toney
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CERTIFICATE OF SERVICE
AND NOW, this 18th day of January, 2005, I, Michael E. Kosik, Esquire, do hereby certify
that I have served a trUe and correct copy of the PLAINTIFF'S POINTS FOR CHARGE by hand-
delivering a copy addressed as follows:
Michael Scheib, Esquire
Griffith, Strickler, Lerman
Solymos & Calkins
110 South Northern Way
York,PA 17402-3737
Michael E. Kosik
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWilLIAMS,
Plaintiff
No. 2001-03837
vs.
CIVIL ACTION. LAW
LINDA L. JOHNSON,
Defendant
JURY TRIAL DEMANDED
POINTS FOR CHARGE OF DEFENDANT LINDA JOHNSON
1. Under the law and evidence, your verdict must be in favor of Defendant,
Linda Johnson and against Plaintiff.
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MERE HAPPENING RULE
2. The mere happening of an accident does not give rise to even a
permissible inference that Defendant Johnson's conduct caused any harm to Plaintiff
McWilliams. Thompson v. Gorman, 358 Pa. 242 (1941); Novak v. Neff, 339 Pa. 193,
158 A.2d 707 (1960); Antison v. Johnson, 420 Pa. 558, 218 A.2d 123 (1966); Hardv v.
Clover Leaf Mills, 426 Pa. 206, 232 A.2d 755 (1967).
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3. Damages cannot be speculative. Plaintiff must establish with reasonable
certainty what damages, if any, she has suffered. Gordon v. Trovatto, 234 Pa. Super.
279,338 A.2d 653 (1975).
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4. In this case, Plaintiff McWilliams did not call any of his treating physicians
from Mechanicsburg Family Practice. There is a rule that says where a potential
witness is within the control of one party and they have special information relevant to
the case, that the testimony would not be cumulative, the relationship to the party is
such that the witness would be expected to favor that party, then if the party does not
produce that testimony, you may draw an inference that the testimony would not be
favorable.
Kovach v. Solomon, 732 A.2d 1 (Pa. Super. 1999)
Bowman v. Plumbarama Comoanv. Inc., 53 Pa. D. & C. 4th 434 (2001).
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5. Defendant Johnson requests that the Court to give the following
instructions from the Pennsylvania Suggested Standard Civil Jury
Instructions:
~
,.,
3.03A (Civ) Comparative Negligence And Appointment Among
Joint Tort Feasors;
A.
B.
3.25 (Civ)
3.50 (Civ)
C.
D.
5.03 (Civ)
5.04 (Civ)
5.05 (Civ)
5.06 (Civ)
5.07 (Civ)
5.30 (Civ)
5.31 (Civ)
!.i.32 (Civ)
5.33 (Civ)
E.
F.
G.
H.
I.
J.
K.
L.
Factual Cause;
Verdict Directing Summary;
Number of Witnesses; -~~
Conflicting Testimony; ~
Willfully False Testimony; - ~
Failure to Produce Evidence;- ~
Circumstantial Evidence; ~"
Expert Testimony - Credibility Generally; ~
Basis for Opinion Generally; ~
. . I i-J1'4."~)AlrJ
HypomeIlcal QuesdlJlI, !:IlId, ~ Y
Weighing Conflicting Testimony. ~
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY:
MICH~ L B. IB, ESQUIRE
Attorney I.D. No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS
Plaintiff
No. 2001-03837
VS.
CIVIL ACTION - LAW
LINDA L. JOHNSON
Defendant
JURY TRIAL DEMANDED
MEMORANDUM FOR PRE-TRIAL CONFERENCE
OF DEFENDANT LINDA L. JOHNSON
Submitted by: MICHAEL B. SCHEIB, ESQUIRE
Counsel for Linda L. Johnson, Defendant,
Date of Pre-Trial Conference: December 22,2004
I. BRIEF SUMMARY OF CASE:
FACTS:
This lawsuit arises out of a minor motor vehicle accident which occurred on July 6,
1999 at the intersection of Route 15 North and Market Street in Camp Hill, Pennsylvania.
---
Plaintiff, Michael McWilliams was driving a full-size van. He was in the process of making
a right-hand turn onto Market Street. Defendant Johnson's vehicle struck the rear of the
McWilliams' vehicle. Ms. Johnson's vehicle was moving at a slow rate of speed at the
time of the impact. Defendant Johnson will admit liability.
Defendant Johnson will not be able to appear at the trial. She has relocated to Fort
Walton Beach, Florida. She does not have any family or other connections to the South
Central Pennsylvania area. Similarly she is the mother of 4 pre-school/elementary school
aged children. For her to return to this area to appear at a trial would pose an incredible
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hardship on her family. Her husband works as a long-distance truck driver and is gone for
extended periods of time.
As previously stated, Defendant will admit liability. Ms. Johnson, however, will not
appear at the trial of this matter.
II. PLAINTIFF'S DAMAGES:
Plaintiff McWilliams worked as a plumber for several years prior to this incident. He
did not seek medical treatment for several weeks following the incident.
On August, 19, 1999, Plaintiff was seen at Mechanicsburg Family Practice. At this
time he was treated for a head cold. He did not complain of any problems or pain as a
result of the July 6, 1999 motor vehicle accident.
Plaintiff sought treatment from an orthopaedic surgeon (Dr. Malin) on September
17, 1999. He saw Dr. Malin on an emergency basis. He informed Dr. Malin that the pain
in his leg began the night before the visit (September 16, 1999). According to Dr. Malin's
medical records, ~aintiff'S pain did not begin until approximately 10 weeks after the motor
vehicle accident which is the subject of this lawsuit.)
Plaintiff has been seen by a Dr. Thomas Howard, who performed an independent
medical examination. A copy of Dr. Howard's reports are attached hereto as Exhibit 1.
Plaintiff does not have a claim for medical expenses or lost wages. Plaintiff has not
exhausted his first party benefits for either medical or wage benefits.
Plaintiff was not married. Thus, there is no claim for loss of consortium.
III. STATEMENT OF ISSUES:
A. The severity of the impact; and
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B. The nature and extent .of Plaintiffs injuries.
IV. LEGAL ISSUES REGARDING ADMISSABILITY OF TESTIMONY:
Previausly Plaintiff has taken the depasitian .of Dr. Smarsh, a chirapractar. Plaintiff
had Dr. Smarsh testify that the treatment was related ta the matar vehicle accident .of July,
1999. Dr. Smarsh, hawever, had never stated in his repart that this treatment was related
ta the matar vehicle accident. Furthermare, the .only records in Dr. Smarsh's file indicates
that treatment .originated with a problem from March, 1999. Defense counsel .objected t.o
this. Defense c.ounsel maved ta have this testim.ony stricken.
Previ.ously Plaintiff has issued a natice t.o attend directed t.o Defendant Linda
Johnson. Since Defendant is admitting liability, it is assumed that this document is moot.
Defendant wauld also reserve the right to advise the jury that Ms. Johnson has left the
area and her testimony is nat necessary because of the admission of liability. Similarly, it
would cause an incredible hardship upon her.
V. WITNESSES TO BE CALLED:
Name(s) Address Subject .of Testimany
1. Michael McWilliams (cross-examination)
2. Linda Johnson (via deposition transcript)
3. Dr. Thomas Howard (via video tape)
Defendant reserves the right to add or delete from this list of witnesses upon proper notice
to the Court and other counsel.
VI. EXHIBITS:
1. Plaintiffs medical records
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2. Dr. Howard's IME report
Defendant reserves the right to add to or delete from the list of exhibits at the trial of
this matter upon proper notice to the Court and other counsel.
VII. SETTLEMENT NEGOTIATIONS:
Plaintiff has demanded the policy limits. Defendant has offered $6,600.00 to settle
this matter. Plaintiff has never issued a counter-demand.
VIII. LENGTH OF TIME FOR TRIAL:
Two to three days.
GRIFFITH, STRICKLER, lERMAN,
SOL YMOS & CALKINS
Dated:
BY:
MICHA . SCHEIB, ESQ IRE
Attorney 1.0. No. 63868
110 South Northern Way
York, Pennsylvania 17402
Telephone: (717) 757-7602
Attorney for Defendant,
Linda L. Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS
Plaintiff
No. 2001-03837
vs.
CIVIL ACTION - LAW
LINDA l. JOHNSON
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
+vt
AND NOW, this ~ day of December, 2004, I, Michael B. Scheib, a member
of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify
that I have this date served the Memorandum for Pre-Trial Conference of Defendant
Linda L. Johnson, by United States Mail, addressed to the party or attorney of record as
follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
Court Administrator
Cumberland County Court House
One Court House Square
Carlisle, PA 17013
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
Date:
t1\11\d-t
\ \
By:
Michael B. cheib, Esquire
Supreme Court ID No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Counsel for Defendant,
Linda L. Johnson
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THOMAS K HOWARD, M,D.
CONSULTING ORTHOPAEDIC PRACTICE
14 HOllY COURT
HANOVER; PENNSYLVANIA 17331
PHONE: (717}637"1060
FAX: (717) 637~3156
Fellow; American Academy of
Orthopaedic SurgeonS 1969:..Ptesent
Board of Councilors 1983-87
Pennsylvania Orthopaedic Society
President 1981,.82
Active Medical Staff,
Hanover, Hospiiar:1968. M Present
President:199Q'92~
AMA, PMS,YCMS
Boardcertified,ABOS 1969
- -President,-Hanover-Orthopaedic-
Associates. 1973-96 '
September 26, 2003
MichaelR Scheib;Esquire ,', ,,' , ' ' ,,', ,
Law OffieesofGriffith, Strickler; Lerman; Solymos& Calkins
11 OK, NorthernWay
Ycork, BA17402
RE:Micbael':L,McWillia~s
IndependentMedieal\~iamination,of'9/23/lJ3
Dear Attorney Scheib:
rhadtheoPfloinlrtitM:tgflerform'an,indepe1l4!lnt~edieafexaminationon' Mic:haelL
McWiniams,~'a.t1ility"eighhyear.old;"wlUteJnide;.onStiptembet' 23,',2003.
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'Btiortothee"aluat~tJti:ltilerigtlly.'f()I(fEk',QfniediC@.'~eeQl"dS!was"reviewed:.", These. included:
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1: "0iIice.recol"ds;i'Egn:!'the9t'thop.~cmstittttehfl?ennsylvanill:ili~sburgr.specifi~ly
, StevtmB:,~o~.M;])[,w~~'!~Si'..~'~\V'.~\lplteIQllJJa~~~2.7~ 200?;..,~otlltlsix'mollths','
, f()Uowing,tIie;~oj~ct:allttltllO~~e;~ecinent,JfOf:eYaJ:ua1!ionoflowbll:<:l~an<Hettleg pmh.witli ,a
,di~gnosi!ltllade,then;0~sacroui~0jQfntd:ys~etioirdn.therigl'itplus,lurnbar:andtl1or~cic
'SPolldYl()~IS'~'nfiJdeicitie!'llt~~~so/dise~et'o~~~ch1iewas ,ret'el1lld;,t0physicaFtherapy,;,
wi#iollt;foll()W'\lp!{o~dinCl~tl~S~;..#~~f~~two;ml}llths'later:; solIle",hat.better,atwhich"
tillle:IDt)etor'\\l~rfi\rder:~i1i:IIi~llCrcil~i()iritJJS~c)ia:ini~etil}n!ftamtheanestf!esiaJst.llfi1iatithe
.,IQcafI:'lI:i~'eenter.,.,mJ.folfuw.an!O~e'1Tl6nthJ}litef;hefererredfthepll:tierlt.t~Jhisassociate,.~'
,Doctodw.eda;.Decll:~eof;petsi#~tJt.Jrig!itk'nee ",aini,'forwmclkheordered,anMRI,and
penorilled!}gjee:x."ray~\Doct()F". ,.,. .,,' ,,' '" ,; iagnO~~'mriillteriorhOrnJtelW:df:the lateral " '
. merii'Scus,lIlthepgirtJ.G-.ee:andipetfonnedlcorrec;tlye'artlrroscoplc surgery. Doctor Wolf
continued,toseeMichaelf()llo~ingasecond.ste~jd'injeetionlllld; inJUly2000, ,essentially
discharged him; Doctor Kanecla'likewise:releasedhim"aboutsixweeks post knee
lI:rthroscopy,
2, Office records from Doctor Binder and others at Susquehanna Internal Medicine, from 1992
on, inclllding a visit onemonthfollowiligthe subjeet automobile accident on August 1,2000,
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THOMAS K. HOWARD, M.D.
CONSULTING OR'IHOPAEDIC PRACTICE
Michaela. Scheib; Esquire
RE:' MichaleMcWilliams
September 26, 2002
Page 2
'W!tf qiagn9~tii sfi1di~s !lIl~freaiirieniliimed, athisgastroin,te~tirnd 'ariUPulIDQQliry' I10dule
Prp):l~~m"referencmgvisitsfoUowingthe motoEvehicleaccidenttol)octoEMilin,
se,p,te,m, b""e"",E"""I"""l"."2,O,.,O,o,.",.,,,a,t,'':V,hi, .C"",h,',.,t\,:m" ,eh,e" W,' as ,Pia, ced, ',<l"narie,X, ero""iS7PE?gram. R, efeEences, made/."~,',"
to,arear..eJIld.mowE'vehicle,'accldent'onAugust 27, ZOOl, at-twhich,t1methey"were unable to
see, hi,','m;andhewentto achiropract" ()fon his own are noted.
, ,
3, Office Ee<;<>fdSifrom.!lls family physi~iaris;Mechanicsburg Family Practice, from 1982,to , 9'
~i=~~~~1=:=i~~i~s:ii;::hz~~~f~::dl=:~ain:~e~~r:~~~:;::i:;:g ,', . ',,','
a"~~EOiliac~tr&J1!andlowback,~'notedand!treatment'giVen" as'weU,l1&a 1993,entry.
regar!iirlgback,andtIeckpoonlel')1slwasnetett.
t4tOv\
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5, ~"rePQrts,oftJteleft!ah!de4~n,~~OfDo~orl\!lilin,oll.,J~Uary24,. 2000,show1l1ga'possible
sif~!April)f~;2~O~jllll"~"()~~~.fj~t',kt1ee!s~~wir;tgllElssible'menisCah~eat!~!e~ema'of'
th~,l~~~i1lifell'\()r~'~~dMr~,.!lfl,~if6EtJ!'l'c1l1t~J~e'~9129oo,lIearly,aYF{olll>willg,the
,,~~I!~c:1;a1Jtqtlib~~cid~lIt;..arr~!o~tliefl~jjl\Fspine.s!1ow~,!a!s"itlt~..,.ti~.,PllI"acentral'\
,'..diso'~(()~sioil\atr.S+&ywim~ElgEl!l;~a#'Ve.c~gEl~i11~h~.ltl~par'spir1e;'lII1d~a1IYan.MM. )
,'.d~~e:Ja,tItl~jf;7i;2y~lj8j~1~lr!~~sp~~vvasii~ssElntia11Ytlie's!lme"M.welLMsh()-wmgonrild , ',., '.
'antemotwooge,cornpreSslan'4et'ormitieSofl"Han4:1Z;, , " ' ' , '
,:',)>' ',:':',/-',',:"',"",'-:',,/,-':',--,,:-,' -""::-/',"'" '-:;-:',"--' _:'::'-:"'--': ',:,,"- ,'_: ,
;i'.,'-: ':';! ,'::::-_ ,'_::' ,-,:'_,< ",,_,':, _,-.' ,:',.:__ ,_ ",', '_':":'
.6. B,.etn,.,......,C"."k, e, .,',e,!,t~,."...~~, ;jr?,s"".,~e""g~, ~~~h,'Y!, ,s, .,!~~'th,', 'J,*, ~py,'.',w,<, er,' ,.'.e,reyiewedcovefingtheconsidenlble """
, genodjoftherapYilheunderwent,tRere,!rt"ZOOOi'alId200L, ?
10, The patient' scomplaint as filed in the lawsuit against Linda L. Johnsonwas reviewed,
H.MichaeFM6Williams'deposition of October 16, 200Zwas reviewed.
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THOMASK HOWARD, M.D.
CONSULTING ORTHOPAEDIC PRACTICE
MichaelB, Scheib,. Esquire
RE: MicliaelMcWilliams 01,',...... ',,'
September 26, 2003 \~
Page 3
<;~.~t1 fk&J, CZ!rz, '1( 0 I ,-JJ} ,('
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,.. '1;li~,p,~tfeWtfij~toijiis~tli~~'oimrn~ilfiYirig.a van \Jpa rampollto'MaflietStreet. iliCam!}::fIill,
SOrnefoU1tfplu~:.}:elll's~g(),July6, 1999, '. He was sittingstil~ ,loolili1goutthe vvindow to-the left
Vl'l1eflJ'ieVl'~M~~K:trom~lilo/ncki His.'1996Dodgevansuifereddamage;hebelievesinthe
amountaJi,llir~~Erf()ilF.tli'o\Jsand..dollars,~oithebackrightofthe"arn.",'He0continue4itoiworkthat
daY:~utii.lat~f.()JI!in1;fte:llftertl0()~~eyening; felt"beatup". '.a:e desen,bestllis,as stiffiiess in his
DlI~.!lritl'(~~litflmee,;'M~G(ilpti"uecl.tow~rk',n".his.noFlnaJ,job,as.lbself-lilfll:ployedpIRmhing,.and
l1~t~~~~~~()r.'l!J~t"()y~jtlie~ext..~(!lveraJ,tlay:s,,.particularlywn(!ln.int-11is;r~linerathome, he
"rtOt~.~hoQ~~\~~ll~Jd'~'hiSi~gJfi.leg.and'iflitiallysta~es'l1~wentto.Ij)~Gtol"lV1illn",one,',ofhis
cUst~~~~~\4W':l1~Ilit~"~~ll~or.,};Iewas,plaeed.on:Iiupr~fllmandie~ereisesferhisback.
'@N-er,tim~l~~V?~l1re)WG~~ii~,at-le~;~~veral;morecontaCts'.?l)Ga:llsiiVl'itI1:~OCt~fi~iHn",wlfere
*~is,~~:~~~~;tt~;~i~:~::::::~~;~;4~~~li~~~a:=~has
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THOMAS K. HOWARD, M.D.
CONSutTING ORTHOPAEDIC PRACTICE
MichaelB: Scheib, Esquire
RE: Michael L. McWilliams
September25,,2003
Page4,
, . '-b~4c~~fh;~c",,~PiJtl1'~ecl:3mergencYRQoiilatHoIY;Spjfliwheiechest)Hayssho:wedJung"
no~Ules,~dihe'has'hadseveral CAT-scansVllithgt:lII1tIlomasdiagnosed and noc follo:wup
,-,,,,reeommelldlld;.no:w.
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HiS:~es~lld,cOI!Il?I~~tj~tPfeSent ist~tjwithactivityandjwalkinghe noteslow back pain :which is
'G\1'lliemi1hts~e;,If()~inthebacklll1d~o<;iatedhvithjdiscomfOrtjntherightkn:ee., He has, , '\
~llt~tt;erI~'~"~fJlilil1t*.?fiPaini~jtheflletii~'aspelrt'iofllie knee andsorpe discomfort in his neck _ ~~
an~:~~~)~I!I~?~s~~:'!iis;!egsbutnotvery:oft~an:d(hotatpresent.. He does notfeeHiecan,lift (j\iIV
asmuchasihednkbefQl'e, .
Wit~fl:tll~i~~st(y~,:.h"'~~,~(.ah~~tubjl1nd!t1Ses'it!~~I~IY, .,.Hestatesthis(hasmad~a'huge
4it;t'e~~lie'ii~rp~~:!mjil.~~hWu~hi"~:QA,a::re~~~asi~.','IIHact; hej$tate~thatin.thepast '
Ye~~i~i~~bti)~~~lt~d.~ttrib~es.tliis;iirrllFd~.of:~i~~f1clUlce'iuIdthniflg.,to"l)' visits to the'
c~~~f~i~)"~~,'~~~sa~ili~eiiM:ecti011;,.,an€t:3)!'~g;~e,IlQt,tub,aIl'tfui~e'tm.ngS;which
, m~~~1ii~c~ps!tfeF~~iri~etteR " " ,
~f~!~~~~~~~~'!I\f~t~~ii~!~i~t1Gal#:.i1l!~.';~!~F~Sult,ofllcfartlityhisto~()~I'~t~~Si$?f~he
;~~~Ii . " "Sl~~~~J~~{~I~;t~i~~~~~7f~#:~tJ~;t~I~:~:~etfi
~i"' '''',! , "",...Ii;Fulti~le'gr~l~~!lsjOf!n~Ul~~itt!l1ische~~isllcls(),~~eif; " ~eis
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"f.":'"..:.,:;,:',':'.''':: '." </.;:"'" >.',,:,<':, --::,i> "",:.,-.',,'..: ",,; '.'.,,',"'> ,:.' "."'.:".:, . ,":',,'::",,' ',.,,' " .':
,~t/~~:~~~~'!l~~;Q~~~!l~9~ti()lls';J!r~e~g~?~~~~6?hOlifor'Ilain.reliefj.' ~,necessaryi .~)
f)' ('.Il~~!~~;~!~~~i~~\~~~'!l~~~~~~a~~en~1.~ijieiille',elills,a!mittimal','rear"~ndconi$i~: '
~~whi~~m~~m~~will~re~~di .
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'Th~'Ii~ti~~'fP#~iIi~~~Ifl:P?#S'l"lltativ*t{}i%Sj9b'~iP~e~ntithat;h~',is backto,',workingfull"tirne
andi~~!19#~!~asif~;t~~(~i#~'.()ff:l"l~'statllstfleill~t(}11l()~ile'aecidehtrdidsIQ""'him:down:,, He
stllt~Sfhll~t;VIIQ~~iiIr.~~nfiiiedi;sp~es'o~'li~~d;.(J~IQad~.Qr'rem()",~iilin~s,like'he.did
DefQ~~'D(lt,'s~P~;~~s;fiil.eitds,~.mOo/e,~g~'!lIi1Ju!1dfer"WlIhHe.is"in,~ener~l,ableto vvork
, regtl.laFly:.El:!t~y~,o~ s!l,ftJllovnng~',!l~~i~e~;,he~~lIIdQften,have to go,homeat'lO:00AM
ol',li00.:PM'but.nowwork~fu:lEda.ys,antf'is'rnueh'll~erinthepastyear;
Physicakex{lnuevealsanltlert,cO()perative;slil!:ljrnuseul ",", ew,~. 8~'andweighs 150
pounds: ,He gets ttpalidstltnds!andiwalkscwithadecide'Ilelvic obliquity, \owontheleft, with a
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THOMASK.HoWARD, M.D.
CONSULTING ORTHOPAEDIC PRACTICE
MichaelR. Scheib; Esquire
RE: MichaelL McWilliams ' 11 ~ J I' 11
:::~ber26; ZOO] J:Dr y~~~!fJ ,"f'ld trl'll,if-
sli,on";Ieg,, i,lim,',cp,'",'.:,',H,'-, e,',is.l,i,ste&totli, 'e" J,i eft, ',ian" -at" nep,.e, 1,V1,'".. s,l,ev, ',e, ',l~.w", itlU,,', a,' ,.,.o,.,n,'e,.""in,c, "h51o,c,',k., "I""t"sn,.,ould,., be,.',,',
n()tea'.tfutt:nere~lIl'lywears.a.'heellift"onthe'ieftwhich, wasprescr.ibed. by,Chrropractor Srnarsh,
follo""ing,tfie-llcddimr,
H~,has.teD,d~essov~tl1eright-sacroWacjointbutnotoverthe spine" Thereis;however", rather
, I1'larke!.f,li~va.tK)n.oimOti!>rljntl1e'It1I1'lllarlspine~honly,5(}%,forwlU"dtlexiorito7(}Q, and he
~aS'.a'rigi~:I~lll!flordosislcwhich'f1ecllIUlo~revetse',on forward<'t}elrionl '. His ieft bend'is .limited
"50%irig~Btmdi~sI!aimulLartd'not.!dileto.'tl-e'-done, today. ,Hifl.'Frendelenbutg",tllstisnegatlve,
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",,' , ',~'" '.''0'___',.;''' C, "'..,, "" '<, '" ,'",','", ',,," 'J',' .,,",,,', ___ ,,"
.,~::',:,;:' ':,,:>~.:::::','-:: ",",,",:"~,:,~;:",;:,:'::,:'~:i":l;;,"~:':';", \i:, :,:~,:;"::",,. ,':':'::\" ;":'::':"'::':'1':, /::,,:,::,:":',":~::,'<::: ",:,,;:~',<', :,:::': ':-:::::" " ,: ""'''' ,,', " , ,': ,:,,:,,:" ," ,', " ,'" ' , ' ',: ",,:-.- >
',,'..'i!lil!,~~eli~~~ll~!S~gtOJn~m:~'~t!~i$t€\nt'.)\1itft\hi~.phY~iC;dfindi!r~s~hi!l}hhllcve.been
,.,...R~~~~~!~ly~:~~~~~'I'~;~f~~,Rt'~~I~\~inee!acl~1f:s@~I1e€\"..sPllCifiCaI~y; ,his"
S(jl1emmlllllls;~~a~~ftli~'#ioliaCi(jsRinw~fill\'lliSjilIf~rt!l~wer;attl'phi@'l~ff,'leg;lmd:pelvic"
'l'~ltq~:"~Sc;~~~,sYrir~~~atwf6il~~g:,jfisc~tomotlite'ac~dilntDI!t'.lilSo.pradueed
ipt~~ilnt'S~Rt6!J1S111ey.o~ipg!tl?;'his,rriediballte!lo!'d~i1'icl~!}3'lII1~ifIil~6';.~hiGlicllte'~imilar to
'tlidse,\atlllFtflecll\it()Jno?ile~~fdentiip1'.l'~~WEfis,to~1riediah'ntem~~~a~.dill~~€\dl)neyear\
f,1\~~~~~.~e'aillO~Ofl~~,~c~id~~t;;li1td\Pfe~lHt'is!~i!~l~,.ori~pos~ible':t~,llitJow,~h~tlii~. )
l'illpp.ened;whetl1erItiwasdue,totrauma,oI"ortnoti1t10n.fiiomliis.,unequal'su.esS'.placed' on,hisy/
. krteeil, ,,', , ,
Atthis time, he is requiring and ,does require little or no medicaltreatment other than his routine
chinoglacticadjust)'nents; wl1ich.hecnoosesta',continue.. He'is.notunderanYotl1eI'specific
medical treatmentforllis.muscuros~elelalsystemother thanthe'followugforllis,colon and
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THOMAS K. HOWARD, M.D.
CONSULTING,ORTHOPAEDlC PRACTICE
MichaeLB., Scheib, Esquire
RE: MichaelL. McWilliams
September 26, 2003
Page 6
"pUlpl)~ary ;easol1S~:Hecetllili1IY~oeSliotrequh-e;anysutgeryollhisrmee, back,-ofpelvis" now,
',nor.shQulthhllin;tliefuture".hasedupon,my evaluation and review of records. Likewise, he has
nophysieali impairments;frpm')Vork"atthiil'time,andis working a full forty-plus-hour week in
fairly,;heavy;manu~Llltborwithoutany significant'restrictlons, 'Tlie fact.thatlie gets help' fef
heavy;liftingand;bendingii>certllimywise;,lIIl~basedonhii>physicaI aBnormalities, ,which are
not the resultoftlie auton1obHe'accicient. , lfeel:his'poognosisforcontinued!function.,isexceHent.
Etrustt!iisanswers:yeritoquestiQns. ME of tile above is within a feas~nabledegreeofmedical
certainty'base01:uponmyevaluationofUie,medicakre<.10fdsand'thepatient,and'hishistory and
,physieal.' Please, Iet,me know if, you have any furtherspecific'questionil'.
",,",__ "":,' .', C"','.'-,/'/,_//.-' :',' -
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THOMAS K. HOWARD, M.D.
CONSULTING ORTHOPlIEDIC PRACTICE
1+ HOLLY COURT
HANOVER, PENNSYLVANIA 17331
PHONE: (717) 637.1060
FAX: (717)637'3156
Fellow; American Academy of
Orthopaedic Surgeons 1969-Present
Board of Councilors 1983,"87
Pennsylvania Ortl\opaedic Society
President 1981~82
Active Medical Staff,
Hanover Hospital1968-~ Present
President 1990.92
AMA, PMS, YCMS
Board Certified,ABOS 1969
President; Hanover,Orthopaedic
Associates-.1973-96
f.)e~ember 6, 2003
~ehaefB" Scheib, Esquire
LIl',\(;()fficesofGriffith; Strickler; Lerman, Solymos, & Calkins
I.IOSouthNorthern,.Way
York,PA 17402.3737
RE: Miehael!L.MeWilliams,--AD])EN1UJM:
DllarAttomey Scheib:
, ,
, , Sl.IbseqUt:nttomyindep~I1d!lnt medi~!~arn.\lI~tionofMichaelMcWilliamsion September 23,
'~~03;I)Ji.ltveli~jthe','oPIlOItlfirityto'reReive;itrldil'!l11ie""qcJllies.,()f.fiye' officey;isits !\ft.,
IVfO"Yilliiin'lsJ'Iadwithl'li~,',pdmarj'9tu:e'orihopa~dicsur~on,'Po~orTom'Mlllin,., in,CM,lpIiiIl,
,.'flf~tidn'SePtelllb~',17;., ,l~99wller~.h~;~s,s~n.on~eniergelltbl1Sh.Wit1iba9~.',and'left lateral
, clijfgllih:sollle~o.arIdlolle'flaijlll()llthsfQI~Q~~g-:~e,~uQjel)t!autolI\?\)ire~~ident , DOctor
~lin'~PQrt~'tlUtt.l'leli!t4no.pllin'in,hislegs;f,ollbvarlgTtli~'ll!ltoIllObil~a~~identbutdid1iawe"back
pain''WIn~Il.'~u~sid~duntittlienigl'ltprio~toth~'yisiti.~ept!lmb.el"'l7tn,., wl'lenl1ecdewelop.edchip;
"eaI"",.'".".f,.",.,.,im""""d,.""'",',,km, '"'",'"ee"".,, "',p,."r,'"o,."b"",I,e'"m,,, scde, ".s,,',cr,,',,<l,.b, .,ed,as",'""":"o,'""."n,, ',th,' ""e, :,n,', '"gtit." ",.,'"" ','"'Do,",, ',cto, ',', ',,' r",:MaI"'",',,,in,', :d,l,'ag,,' n"."o,',s, ed, J.,um, '. "b,', 0Sl!"., cra,I,isp,.,rain
kJ. "lUld'~g4#~~sp:,!~Th, ~in~~jt~:exis~ed'~o~;l~~Sthari.tvl~lltY.-fQur,hoursi.l'le')'las\ 'wi~
W, re~~'!f~~"~~:1ll91~.heati~ll,"f~~f()II0~~9~0~9b~r15; 1999ione:mo "" 'which
~, ,,'.' t!o/ll,h~I'iad,'~t~tte~tlO.vl'bll()kplUtIand,a'~e~t1~~pl'lyslCalexam.But;becau ,", "e
.' .iW't".P'~!lllt's'~II<:ern.lt.rays(jftlle.l~ll:!b~sPitIe;~er-~4()?eWfliCh.vl'ere'es~e~ially: negative;.andhe
was,Rt~eed;~airl,on~:",App.~e~lrrtlpsr~sof:y~;,?nernonthlater-,.,,olrNovell:!ber, 12,
~'~~i'.)l"'~as."ff~n:oncllllem.~asl~ffisp~n~~scleftcankl~Ila4i@csteplle4"ll'l~hoIe'~--"
tlleniglitp~or;lllldwasnotedao.havea.,leftlateraI.an~Ie sf)rain,wllichwastreated'witharraif cast
lUld}~ee~ed~oll"esolvebx~!llsnext'vis~ton:e~~#mb~,,6' ,19~9:,.D{)ctorMalin..notes:then., tlIat,
, hiSiijackis.doillg'~em,.,He'i\lasIDYenallrexe!~sell()oklet;arl(jidischlll"~tild;. butretumedon
Febru~4;.,2DOO;hawinghadan~ofhisleftankJ.eonJiir1uary25" 2000, Doctol"Ma.lin
t1j~gnosed,ac()?tusioh'?fthe,left'talar,dome;.".Il.,resultofthe 'sprained' ankle' he suffered on
l1{bvember 11m, ,and otherwise discl)arged the patient
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THOMASK HOWARD, M.D.
CONSULTINGORIHOPAEDIC PRACTICE
Michael B, Scheib, Esquire
RE: MichaelMcWiUiams
December 6, 2003
Page2
Relativeto thelME IperformedonMichaelMcWilliams on September 23; 2003, and my
diagnoses;comrrients,and~lI'Iri1endati()ns" t1iel1;these follbW-up visits to Doctor Malin simply
reinforce my 'diagnoses ancFconclusions regarding'his chronic orthopaedic diagnoses,
Itdoesnotseempossibleto,.methatanepisodeoflow back.andrightkriee'painsome two and
one-halfmont,hsif6!IowiJ1:ga motorvel1icleaccidentwhij.:h,bad~nasymptomatic prior,to t,his
occasian,cauidbe rel~~,totheautomobilea~cident" Neither, ,obviously; was the , ankle sprain
Doctor MalinireferstoW'\iWJ:tinetreated,liihYfor'on.November 12; 1999.
Please let me. know ifyouJ:ywe any further specific 'questions,
'FKWser
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ANGINO & ROVNER, P.C.
Michael E. Kosik, Esquire
Attorney ID#: 36513
4503 North Front Street
Harrisburg,PA 17110-1708
(717) 238-6791
FAX (717) 238-5610
Attorneys for P1aintiff(s)
E-mail: mkosik@angino-rovner.com
'<.-' '-, "~'t
DEe 1 6 2004 f
MICHAEL L. McWILLIAMS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
LINDA L. JOHNSON,
Defendant
CIVIL ACTION - LAW
NO. 2001-03837
JURY TRIAL DEMANDED
PLAINTIFF'S PRETRIAL MEMORANDUM
I. Statement of the Case
This case arises out of a two-car automobile accident which occurred on July 6, 1999 on
State Route 15 at is intersection with Market Street in Camp Hill, Cumberland County,
Pennsylvania. Plaintiff Michael McWilliams was driving his business' 1996 Dodge van and had
been travelling north on Route 15 and had come to a stop in the exit lane onto Market Street to
travel east into Camp Hill. While stopped, Mike McWilliams was looking to his left waiting for
traffic to pass before merging onto Market Street eastbound. At that time, Defendant Linda Johnson
288807
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came up behind Plaintiff Mike McWilliams' van and failed to stop and violently struck the rear of
his vehicle. A diagram from the Camp Hill Police report is attached hereto as Exhibit A.
Plaintiff maintains that this is a clear liability accident where he was struck from the rear
while at a fully stopped position waiting for traffic to pass before merging onto Market Street.
Defendant Linda Johnson has failed to admit negligence in the striking of the rear of Plaintiff's
vehicle. As a result of the accident, Plaintiff Mike McWilliams has sustained injuries to his back
and left knee which is more fully described below.
II. Tvoes and Amount of Damage
Immediately after the motor vehicle accident, Plaintiff Mike Mc Williams felt stiff but was
able to continue about his normal daily activities. He noted that he was having problems in doing
work and that some normal tasks seem to be taking him a lot longer, but he did not seek any
medical treatment initially. Approximately two months after the motor vehicle accident, he had an
onset of severe back pain and pain in his left leg and right knee and saw Dr. Thomas Malin at
Orthopedic Surgeons of Central Pennsylvania for initial evaluation. At that time, he gave a history
of being involved in a motor vehicle accident after which he had back pain and left hip pain and
right knee and calf pain. He followed up with Dr. Malin approximately a month later.
Since Dr. Malin was only prescribing him essentially over-the-counter pain medications, he
started treating with Dr. Thomas Smarsh at Smarsh Chiropractic in November, 1999. When he did
not receive significant improvement with Dr. Smarsh, he set up an appointment with Dr. Steven
Wolf of the Orthopedic Institute who evaluated his low back pain. He was sent for physical therapy
at the Hetrick Center where he made some improvement on his complaints. Dr. Wolf eventually
confirmed that his problem with his right leg was not a radicular problem, and in the spring of 2000
referred Mike McWilliams to Dr. Robert Kaneda who evaluated his right knee pain and eventually
288807
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did an orthoscopic procedure based upon a diagnosis of an l!lltPMgr 11""11 lear ot tile iaieral mml~c:l'i1l'><""<'<
of the right knee., "
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--
Following the knee surpep', Mike McWilliams' problems with the right knee resolved, but
"
he continued to have problems with his low back and neck. He continued to receive therapy
through a variety of sources, including Smarsh Chiropractic and Hetrick and eventually went on to
have injections in his low back, particularly the sacroiliac joint, which again improved but failed to
resolve his condition. After approximately a year of treatment following the accident, Mike
McWilliams treated almost exclusively with Dr. Thomas Smarsh at Smarsh Chiropractic to
maintain his condition.
Plaintiff's counsel has taken the deposition of Dr. Thomas Smarsh to explained Plaintiff
Mike McWilliams' ongoing course of treatment since shortly after the accident through the time of
the deposition on August 30, 2004. Plaintiff Mike Mc Williams' counsel also has the deposition of
Dr. Steven Wolf scheduled for January 6, 2005. The majority of Plaintiff Mike McWilliams'
medical bills were covered by his first-party medical coverage, however, he has an outstanding
balance with Smarsh Chiropractic in the amount of$I,648.20.
After the accident, Plaintiff Mike McWilliams felt that he was limited in some of his
activities, especially the heavier lifting. Although he was slower perfonning some function, he was
able to continue working at his self-employment through Mike's One Call as a heating, air
conditioning, and ventilation specialist, as well as plumbing. After the accident, he would either ask
friends or hire subcontractors to assist him with heavier tasks such as installing or removing hot
water heaters and air conditioners and heaters, and as a result, he has incurred additional expenses
which he did not have prior to the motor vehicle accident. Plaintiff has prepared a list of occasions
288807
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when he has had to hire subcontractors, resulting in increased costs to his business. A chart
showing the costs to hire subcontractors is attached hereto as Exhibit B.
Plaintiff Mike McWilliams seeks to recover for pain and suffering and loss of enjoyment of
life associated with the injuries sustained in the motor vehicle accident. He also seeks to recover
those medical expenses not covered by his first-party carrier for treatment at Smarsh Chiropractic.
Plaintiff Mike McWilliams also seeks to recover for the increased costs of doing business and hiring
a subcontractor to assist him in his self-employment as reflected in the Exhibit attached hereto as
Exhibit B.
II. Witnesses
288807
,I
II
A.
LIABILITY
I.
Michael McWilliams
104 South Terrace Drive
Dillsburg, PA 17019
2.
Officer Michael Bingham
Camp Hill Borough Police Department
2145 Walnut St.
Camp Hill, PA 17011
3.
Linda Johnson - as if on cross
109 Virginia Drive
Fort Walton Beach, FL 32548
B.
DAMAGES
4.
Thomas Smarsh, DDC - via videotaped deposition
Smarsh Chiropractic
3514 Trindle Road
Camp Hill, PA l701l
5.
Steven Wolf, M.D. - via videotaped deposition
Orthopedic Institute
875 Poplar Church Rd.
Camp Hill, P A l7011
4
I ~,
*,'
6. Samuel M. Gamber, D.C. - via deposition
971 York Road
Dillsburg, P A 17109
Plaintiff reserves the right to call any other treating doctors whose medical records have
been provided to the Defendant or identified in Defendant's Pre-Trial Memorandum.
IV. Exhibits
1. Diagram of the accident site from the police report;
2. Photographs ofthe accident scene;
3. Property damage photographs of Plaintiffs vehicle;
4. Property damage appraisal for Plaintiff s vehicle;
5. Photographs of the Defendant's car ;
6. Mike McWilliams' journal;
7. Mike's One-Call business records;
8. Subcontractor's bills and summary;
9. Medical bills and bill summary; and
10. Plaintiff s medical records.
V. Expert Witnesses
Plaintiff s does not have any technical expert, but Plaintiff has taken the deposition of his
treating physicians, Dr. Thomas Smarsh and will be taking the deposition of Dr. Steven Wolf.
VI. Stipulations
A. Plaintiff would request a stipulation as to the authenticity and admissibility of the
scene diagram, photographs, and property damage appraisal. Plaintiff also seeks a stipulation as to
the authenticity of medical records exchanged in discovery reserving any questions as to
288807
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II
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admissibility to the time of trial. Plaintiff would also seek a stipulation as to the reasonableness of
Dr. Smarsh' medical bills, although it is understood that defense wishes to contest their
admissibility and relevance.
VII. Estimated Length of Trial
Two days.
VIII. Scheduling Problems
None.
IX. Soecial Evidentiary Issues
None.
X. Realistic Demands
Defendant offered $6,600 shortly before the case being listed for trial. On November 8,
2000, Plaintiffs counsel requested a tender of Defendant's policy limits if they were $50,000 or
less. The adjuster confirmed the policy limit of $50,000 but refused to make any offer of settlement.
No further negotiations have taken place.
P.C.
Michael E. Kosik, Esquire
!.D. 36513
4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6791
Attorneys for Plaintiff
288807
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SUBCONTRACTOR BILL SUMMARY
MICHAEL McWILLIAMS
DATE OF ACCIDENT: 7/6/1999
07/13/99 Markara Construction $70.00
07/13/99 Markara Construction $52.50
08/09/99 Markara Construction $175.00
. 09/21/99 Orendorf Ground Maintenance $120.00
09/25/99 Markara Construction $81.25
1 0/04/99 Markara Construction $52.50
11/01/99 Markara Construction $70.00
11/10/99 Orendorf Ground Maintenance $127.50
11/29/99 Orendorf Ground Maintenance $371.20
11/30/99 Markara Construction $105.00
12/27/99 Markara Construction $113.75
1999 TOTAL . . . . $1338.70
02/07/00 Markara Construction . $35.00
06/02/00 Markara Construction $54.00
06/12/00 Markara Construction $270.00
06/12/00 Markara Construction $72.00
07119/00 Orendorf Ground Maintenance $293.00
. 07/28/00 Markara Construction $36.00
09/13/00 Markara Construction $182.25
10/02/00 Orendorf Ground Maintenance $60.00
10/16/00 Markara Construction $42.00
10/19/00 Orendorf Ground Maintenance $275.00
10/23/00 Markara Construction $126.00
. 10/30/00 Markara Construction $126.00
.. 11/09/00 Orendorf Ground Maintenance $90.00
11/30/00 Cardinal Plumbing $1,386.00
12/01/00 Markara Construction $273.00
12/01/00 Markara Construction $72.00
12/07/00 Orendorf Ground Maintenance $300.00
12/18/00 Markara Construction $63.00
12/18/00 Markara Construction $31.00
2000 TOTAL $3 786.25
Markara Construction $32.00
01/02/01 Markara Construction $42.00
01/04/01 Markara Construction $63.00
01/29/01 Markara Construction $87.00
01/30/01 Markara Construction $176.50
02/05/01 Markara Construction $42.00
02/12/01 Markara Construction $84.00
03/12/01 Orendorf Ground Maintenance $370.00
03/26/01 Markara Construction $300.00
04/14/01 Markara Construction $63.00
04/30/01 Markara Construction $84.00
07/02/01 Markara Construction $73.50
07/05/01 Orendorf Ground Maintenance $320.00
07/06/01 Markara Construction $126.00
09/14/01 Orendorf Ground Maintenance $837.50
11/19/01 Markara Construction $42.00
269834_1.xLS, updated 12/15/2004
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12/26/01 Orendorf Ground Maintenance $520.00
2001 TOTAL $3 262.50
01/07/02 Novesal Construction Co $84.00
02119/02 Markara Construction $42.00
02/24/02 Novesal Construction Co $120.00
02/26/02 Orendorf Ground Maintenance $722.50
03/11/02 Markara Construction $84.00
03/11/02 Markara Construction $42.00
04/21/02 Orendorf Ground Maintenance $1,318.00
05/31/02 Orendorf Ground Maintenance $2,152.50
06/06/02 Novesal Construction Co $3,234.00
06/06/02 Novesal Construction Co $126.00
06/20/02 Novesal Construction Co $1,176.00
07/31/02 Orendorf Ground Maintenance $3,189.00
08/05/02 Novesal Construction Co $115.80
08/07/02 Orendorf Ground Maintenance $645.00
12/03/02 Orendorf Ground Maintenance $100.00
2002 TOTAL $13 150.80
GRAND TOTAL $21 538.25
269834 1.xLS, updated 12/15/2004
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CERTIFICATE OF SERVICE
AND NOW, this 16TH day of December, 2004 I, Michelle M. Milojevich, an employee of
Angino & Rovner, P.C., do hereby certifY that I have served a true and correct copy of the
PLAINTIFF'S PRETRIAL MEMORANDUM in the United States mail, postage prepaid at
Harrisburg, Peunsylvania, addressed as follows:
Michael Scheib, Esquire
Griffith, Strickler, Lerman
Solymos & Calkins
110 South Northern Way
York,PA 17402-3737
17tuuL ~1 i1ti t.,.
Michelle M. Milojevich
----
288807
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IN RE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
PRETRIAL CONFERENCES
JANUARY TERM - 2005
No. 2004 - 6294 Civil Term
ORDER OF COURT
AND NOW, December 15, 2004, pretrial conferences for the cases listed below for trial
at the January, 2005 term of Court of Common Pleas, Civil Division, will be held on
Wednesday, December 22, 2004.
The following cases will be heard by the Honorable Edgar B. Bayley
In Chambers, commencing at 9:00 a.m., in the following order:
(9:00) 3. 01-3837 Civil Term
Michael L. McWilliams vs.
Linda L. Johnson
The following cases will be heard by the Honorable Kevin A. Hess
In Chambers, commencing at 9:00 a.m., in the following order:
(9:00) 5. 01-3956 Civil Term
Cristina Lara vs. Kyle Strock
The following cases will be heard by the Honorable Edward E. Guido
In Chambers, commencing at 8:45 a.m., in the following order:
(8:45) 6. 02-3917 Civil Term
Cody Matson (Minor Child) by his Legal
Guardian Melanie Sheaffer and Melanie
Sheaffer his mother, and Michael
Matson, His father vs. Anita Butcher
The following case will be heard by the Honorable J. Wesley Oler, Jr.
In Chambers, commencing Tuesdav. December 21, 2004:
(9:00) 1. 98-4094 Civil Term
Barbara Jean Payne vs. Jeremy Bull vs.
Carlisle Country Club
By the cO/;n/J
/llf b
George E offer, P.J.
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ORIGINAL
,
MICHAEL 1. McWILLIAMS,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
NO. C 1- .JPJ7
Ciu~{'-r~
LINDA 1. JOHNSON,
Defendant
JURY TRIAL DEMANDED
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the
fdUowing pages, you must take action within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and judgment may be entered against you by the
Court without further notice;for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
4th Floor, Cumberland County Courthouse
Carlisle,PA 17013
(717) 240-6000
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas sugnuientes, usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado
y archivar en la corte en forma escrita sns defensas 0 sus objeciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la;
peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes
para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIEmI
ABOGADO 0 SINO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYPi,
,
EN PERSONA 0 LLAME POR TELEPFONO A LA OFICINA CUY A DIRECCION SE\
ENCUENTRA ESCRITA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEQUIR'
ASISTENCIA LEGAL.
Court Administrator
4th Floor, Cumberland County Courthouse
Carlisle,PA 17013
(717) 240-6200
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MICHAEL 1. McWILLIAMS,
Plaintiff
v.
. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
NO. 0/.39'..31 ~ I.u-
LINDA 1. JOHNSON,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiff Michael 1. McWilliams is a citizen of the Commonwealth of Pennsylvania,
who resides at 100 Lebanon Avenue, Camp Hill, Cumberland County, Pennsylvania.
2. Defendant Linda 1. Johnson is a citizen of the Commonwealth of Pennsylvania, who
resides at 49 West Keller Street, Mechanicsburg, Cumberland County, Pennsylvania.
3. The facts and occurrences hereinafter related took place on or about July 6, 1999, on
State Route 15 at its intersection with Market Street, Camp Hill, Cumberland County, Pennsylvania
4. Plaintiff Michael 1. McWilliams was driving a 1996 Dodge Van, traveling north on
State Route 15 and had slowed to a stop in the exit lane to Market Street.
5. At that time and place, Defendant Linda 1. Johnson was operating a 1990 Ford Probe,
also traveling north on State Route 15, directly behind Plaintiff Michael 1. McWilliams.
6. At that time and place, Plaintiff Michael 1. McWilliams brought his van to a stop and he
was looking to the left to watch for oncoming traffic before attempting to merge onto Market Street.
7. At that time and place, Defendant Linda 1. Johnson failed to stop and violently slammed
her vehicle into the rear end of Plaintiff Michael 1. McWilliams' van,.
8. The foregoing accident and all of the injuries and damages set forth hereinafter sustained
by Plaintiff Michael 1. McWilliams are the direct and proximate result of the negligent, careless,
and reckless manner in which Defendant Linda 1. Johnson operated her vehicle as follows:
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(a) failure to drive her vehicle at a speed which would enable her to stop safely
to avoid collision with other vehicles which were properly stopped on the
roadway;
(b) failure to keep alert and maintain a proper watch for the presence of other
motor vehicles on the roadway;
(c) failure to travel at a safe speed;
(d) failure to drive her vehicle with due regard for the highway and traffic
conditions which were existing and of which she should have been aware;
(e) failure to keep proper and adequate control over her vehicle;
(f) failing to drive at a safe and prudent speed so as to be able to stop within the
assured clear distance ahead; and
(f) driving her vehicle upon the highway in a manner endangering persons and
property and in a reckless manner with careless disregard to the rights and
safety of others and in violation of the Motor Vehicle Code of the
Commonwealth of Pennsylvania.
9. As result of the above collision, Plaintiff Michael 1. McWilliams sustained injuries,
including but not limited to, an anterior horn tear of the lateral meniscus of his right knee which
required arthroscopic surgery, right sacroiliac join disfunction, and a L5-S1 disc protrusion which
results in pain in his low back and radiating down his right leg as well as various other contusions.
10. By reason of the aforesaid injuries, Plaintiff Michael 1. McWilliams was forced to incur
liability for medical treatment, medications, physical therapy, and similar miscellaneous expenses.
11. Because of the nature of his injuries, Plaintiff Michael 1. McWilliams has been advised
and, therefore, avers that he may be forced to incur similar expenses in the future, and claim is made
therefor.
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12. As a result of the aforementioned injuries, Plaintiff Michael 1. McWilliams has
undergone and in the future will undergo physical and mental suffering, great inconvenience in
carrying out her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor.
13. Plaintiff Michael 1. McWilliams continues to be plagued by persistent pain and
limitation and, therefore, avers that his injuries may be of a permanent nature, causing residual
problems for the remainder of his lifetime, and claim is made therefor.
14. Plaintiff Michael 1. McWilliams has sustained a loss of work, loss of opportunity and
diminution in his earning capacity as a result of injuries sustained in the accident and claim is made
therefor.
WHEREFORE, Plaintiff Michael 1. McWilliams demands judgment against Defendant
Linda 1. Johnson in an amount in excess of Twenty-Five Thousand ($25,000), exclusive of interest
and costs for punitive damage and in excess of any jurisdictional amount requiring compulsory
arbitration, including punitive damages.
P.C.
I . Kosik, Esquire
I. D. No. 36513
4503 North Front Street
Harrisburg, P A 1711 0-1799
(717) 238-6791
Counsel for Plaintiff
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
MICHAEL 1. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
Jury Trial Demanded
NOTICE TO PLEAD
TO: Michael 1. McWilliams
c/o Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
You are hereby notified to file a written response to the enclosed New Matter within twenty
(20) days from service hereof or a judgment may be entered against you.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY--u'cF-- -Y:[?CA--
LISA M. DiBERNARDO, ESQUlRE
Supreme Court ID No. 56684
Attorney for Defendant, Linda 1. Johnson
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL 1. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
Jury Trial Demanded
DEFENDANT..LINDA L. JOHNSON'S ANSWER
AND NEW MATTER TO PLAINTIFF'S COMPLAINT
AND NOW, this r Cf fi.- day of<:P..--tf L/Nf-.., 2001, comes the Defendant, Linda 1. Johnson,
by and through her attorneys, GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, and
files this Answer and New Matter in response to Plaintiffs Complaint and states as follows:
1. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 1 of Plaintiff' s Complaint and same are denied and strict proof thereof is demanded at the
time of trial.
2. Denied. It is denied that Defendant, Linda 1. Johnson is a citizen of the
Commonwealth of Pennsylvania who resides at 49 West Keller Street, Mechanicsburg, Cumberland
County, Pennsylvania. On the contrary, Plaintiff is now a resident of Fort Walton Beach, Florida.
3. Denied, After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 3 of Plaintiff' s Complaint and same are denied and strict proofthereof is demanded at the
time of trial.
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4. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 4 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at the
time of trial.
5. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 5 of Plaintiffs Complaint and same are denied and strict proof thereof is demanded at the
time of trial.
6. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 6 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at the
time of trial.
7. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 7 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at the
time of trial.
8. Denied. The allegations raised in paragraph 8 state a conclusion oflaw to which no
response is required. To the extent a response is deemed necessary, it is specifically denied that
Defendant, Linda 1. Johnson, operated her vehicle in a negligent, careless and/or reckless manner
as follows:
a. failure to drive her vehicle at a speed which would enable her to stop safely
to avoid collision with other vehicles which were properly stopped on the
roadway;
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b. failure to keep alert and maintain a proper watch for the presence of other
motor vehicles on the roadway;
c. failure to travel at a safe speed;
d. failure to drive her vehicle with due regard for the highway and traffic
conditions which were existing and of which she should have been aware;
e. failure to keep proper and adequate control over her vehicle;
f. failing to drive at a safe and prudent speed so as to be able to stop within the
assured clear distance ahead; and
g. driving her vehicle upon the highway in a manner endangering persons and
property and in a reckless manner with careless disregard to the rights and
safety of others and in violation of the Motor Vehicle Code of the
Commonwealth of Pennsylvania.
On the contrary, at all times relevant hereto, Defendant Johnson operated her motor vehicle
with due care and regard for the rights and safety of others.
9. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 9 of Plaintiffs Complaint and same are denied and strict proof thereof is demanded at the
time of trial.
10. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 10 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at
the time of trial.
11. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 11 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at
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the time of trial.
12. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 12 of Plaintiffs Complaint and same are denied and strict proof thereof is demanded at
the time of trial.
13. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 13 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at
the time of trial.
14. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of the allegations contained in
paragraph 14 of Plaintiff s Complaint and same are denied and strict proof thereof is demanded at
the time of trial.
WHEREFORE, Defendant, Linda 1. Johnson, demands judgment in her favor and against
Plaintiff, plus costs and such other and further relief as this Honorable Court may deem just and
appropriate under the circumstances.
NEW MATTER
15. Paragraphs 1 through 14 above of Defendant, Linda 1. Johnson's Answer to
Plaintiffs Complaint are incorporated herein by reference as though set forth in full.
16. Plaintiff s Complaint fails to state a cause of action upon which relief can be granted.
17. No act or failure to act on the part of Defendant was a substantial factor in bringing
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about Plaintiffs alleged injuries and damages.
18. Plaintiff has not sustained a serious injury as defined by Act 1990-6, 75 Pa.C.S.A.
Sect. 1702.
19. Plaintiffs claim for non-economic damages may be barred because Plaintiff has
elected the limited tort option as set forth in Act 1990-6, 75 Pa.C.S.A. Sect. 1705(b)(3)(d).
20. Plaintiff, Michael 1. McWilliams, was contributorily and/or comparatively negligent,
which contributory and/or comparative negligence was a substantial factor in bringing about his
alleged injuries and damages.
21. The instant accident was caused as the direct and proximate result of the negligence,
careless and reckless manner in which Plaintiff, Michael~. Williams operated his vehicle as follows:
a. Failure to keep alert and maintain a proper watch for the presence of other
vehicles on the roadway;
b. Failing to drive his vehicle with due regard for the highway and traffic
conditions which were existing and,ofwhich he should have been aware;
c. Failing to keep proper and adequate control over his vehicle; and
d. Coming to an abrupt and unnecessary stop because he was failing to drive at
a safe and prudent speed.
22. Plaintiff operated his vehicle in a manner which endangered persons such as
Defendant and, with careless disregard for the rights and safety of others such as Defendant lawfully
on the highway.
23. Plaintiffs claim is barred in whole or in part by the provisions of the Pennsylvania
Motor Vehicle Financial Responsibility Law.
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24. Plaintiffs alleged injury or damages were the result of acts or omissions by third
parties over whom Defendant has no responsibility or control.
25. Defendant, Linda 1. Johnson, was confronted with a "sudden emergency."
26. At all times relevant hereto, Defendant, Linda 1. Johnson, acted carefully, lawfully,
properly and prudently, with due care under the circumstances.
27. The injuries and damages that Plaintiff claims he has sustained in this motor vehicle
accident may have pre-existed this accident and were not caused as a result of this accident.
WHEREFORE, Defendant, Linda 1. Johnson, demands judgment in her favor and against
Plaintiff, plus costs and such other and further relief as this Honorable Court may deem just and
appropriate under the circumstances.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
By
&~.)~--
LISA M. DiBERNARDO, ESQUIRE
Supreme Court ID No. 56684
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant, Linda 1. Johnson
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VERIFICATION
I, Linda L. Johnson, hereby verify that the staternents rnade in the foregoing Answer
and New Matter to Plaintiff's Cornplaint are true and correct to the best of rny personal
knowledge or information and belief, as well as reports, records, conferences and other
investigatory rnaterial rnade available to rne. To the extent that the foregoing contains
averments which are inconsistent in fact, I verify that my knowledge or information is
sufficient to form a belief that one or more ofthern is true, although I am currently unable,
after reasonable investigation, to ascertain which of the inconsistent averments are true.
To the extent that the foregoing contains legal conclusions or opinions, I hereby state
that my Verification is rnade upon the advice of counsel, upon whorn I have relied in the
filing this document.
This Verification is made subject to the penalties of 18 Pa. C.S. g 4904 related to
unsworn falsifications to authorities.
Dated:
~ Yf ,fdluu>>e
inda L. Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
MICHAEL 1. McWILLIAMS,
Civil Action - Law
Plaintiff,
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
Jury Trial Demanded
CERTIFICATE OF SERVICE
AND NOW, this JL1;;;ofSeptember, 2001, I, Lisa M. DiBernardo, Esquire, a member
of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certifY that
I have this date served a copy of the Defendant's Answer with New Matter to Plaintiff's
Complaint, as indicated below, addressed to the party or attorney of record as follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 17110-1799
(Counsel for Plaintift)
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
By
&~. )-~
LISA M. DiBERNARDO, ESQUIRE
Supreme Court ID No. 56684
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant, Linda 1. Johnson
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MICHAEL 1. McWILLIAMS,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
NO. 2001-03837
LINDA 1. JOHNSON,
Defendant
JURY TRIAL DEMANDED
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER
AND NOW come the Plaintiffs, by and through their attorneys, Angino & Rovner, P.C., and
hereby replies to the New Matter of Defendant as follows:
15. Pennsylvania Rule of Civil Procedure 1030 provides that a party may set forth as
New Matter any material facts which are not merely denials of the averments of the preceding
pleading. A review of Defendant's Answer confIrms that all of the paragraphs with the exception of
,paragraph 2 concerning the current address of Defendant Linda Johnson are merely denials of the
corresponding paragraphs of Plaintiffs Complaint. Therefore, Defendant's incorporation of her
answer to the Complaint was improper and no further response is required.
To the extent that Defendant's response to paragraph 8, that she was operating her
motor vehicle with due care and with regard to the rights and safety of others, may be considered an
averment of a material fact, it is specifically denied and Plaintiff incorporates the allegation
contained in paragraph 8 of his Complaint.
16. Denied. This averment is a conclusion of law to which no responsive pleading is.
required. To the extent that a further response may be deemed proper, it is specifically denied that
Plaintiffs Complaint fails to state a cause of action, and to the contrary, it is averred that Plaintiffs
236645.1IMEK\MMM
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Complaint sufficiently sets forth a cause of action for negligence in the operation of a motor vehicle
against the Defendant.
17. Denied. This averment is a conclusion of law to which no responsive pleading is
required. To the extent that a response may be deemed proper, it is specifically denied that
Defendant's negligent conduct, as set forth in Plaintiff s Complaint, was not a substantial factor in
. bringing about Plaintiffs injuries and damages. To the contrary, it is averred that all of Plaintiff's
injuries and damages are directly and proximately caused by the Defendant's conduct.
18. Denied. This averment is a conclusion of law to which no responsive pleading is
required. To the extent that a further response would be proper, it is specifically denied that
Plaintiffs claim is controlled by the definition of serious injury contained in 75 Pa.C.S.A. g1702.
At the time of the accident, Plaintiff Michael McWilliams was operating a commercial vehicle
which he owned was insured under a commercial automobile policy to which the election of tort
options included in 75 Pa.C.S.A. g 1705 did not apply. By way of further response, it is specifically
denied that Michael McWilliams did not sustain a serious injury.
19. Denied. This averment is a mixed conclusion of fact and law to which no
responsive pleading is required. To the extent that a response may be deemed proper, it is
specifically denied that Plaintiff Mike McWilliams' claim is governed by gI705(b)(3)(d) of the
Pennsylvania Motor Vehicle Financial Responsibility Law. As stated in response to paragraph 18
above, Plaintiff Mike McWilliams was operating a commercial vehicle which he owned and which
was insured under a commercial automobile policy to which the election of tort options did not
apply.
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20. Denied This averment is a conclusion of law to which no responsive pleading is
required. To the extent that a response may be deemed proper, it is specifically denied that Plaintiff
Mike McWilliams was contributorily or comparatively negligent in the case of action set forth in
this claim. It is further denied that any alleged contributory or cornparative negligence was a
substantial factor in bringing about his injuries. To the contrary, it is averred that at the time of the
accident,. Mike McWilliams was safely and appropriately attempting to merge his vehicle onto
Market Street when he was struck in the rear by the Defendant who was travelling too fast and not
paying proper attention, striking the rear of his vehicle as set forth more fully in Plaintiffs
Complaint.
21. Denied. This averment is a mixed conclusion of fact and law to which no
responsive pleading is required. To the extent that a response may be deemed proper, it is
specifically denied that Plaintiff Mike McWilliams was negligent, careless, or reckless in any
manner upon the cause of action stated in his Complaint. Plaintiff s responds to the following
averments as follows;
a. It is specifically denied that Plaintiff Mike McWilliams failed to keep alert
and maintain a proper watch for the presence of other vehicles on the highway. To the contrary, it is
averred that Plaintiff Michael McWilliams was at a complete stop waiting to attempt to merge his
vehicle onto Market Street when his vehicle was struck in the rear by the Defendant.
b. It is specifically denied that Plaintiff Mike McWilliams failed to drive his
vehicle with due regard for the highway and traffic conditions which were existing and which he
should have been aware of. To the contrary, it is averred that Mike McWilliams was at all times
236645.lIMEKIMMM
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driving his vehicle with due regard for the highway and traffic conditions and that he was waiting to
merge onto Market Street and had brought his vehicle to a safe stop while waiting to merge from
11& 15 northbound onto Market Street eastbound.
c. It is specifically denied that Plaintiff Mike McWilliams failed to have proper
and adequate control over his vehicle and to the contrary, it is averred that at all times he was at a
complete stop waiting to merge his vehicle onto Market Street.
d. It is specifically denied that Plaintiff Mike McWilliams came to an abrupt or
uunecessary stop or that he failed to drive at a safe or prudent speed. To the contrary, it is averred
that Mike McWilliams brought his vehicle to a safe stop by slowly stopping his vehicle at the yield
sign at the ramp which exists between US Route 15 northbound and Market Street. At the time that
he brought his vehicle to a stop, traffic travelling from his west and travelling eastbound on Market
Street were proceeding through a green light at the intersection of US 15 and Market Street and he
had to wait for traffic to clear before merging onto Market Street eastbound.
22. Denied. This averment is a mixed conclusion of fact and law to which no
responsive pleading is required. To the extent that a response may be deemed proper, it is
specifically denied that Plaintiff Mike McWilliams operated his vehicle in a manner which
endangered persons and with careless disregard for the rights and safeties of others. To the
contrary, as previously stated, Plaintiff Mike McWilliams had brought his vehicle to a slow and
controlled stop at the yield sign on the ramp from US Route 15 northbound before entering onto
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23. Denied. This averment is a conclusion of law to which no responsive pleading is
required. To the extent that a response may be deemed proper, it is specifically denied that any
portion of Plaintiffs claim is barred in whole or in part by the provisions of the Pennsylvania Motor
Vehicle Financial Responsibility Law. By way of further response, Plaintiff Mike McWilliams
maintains that the Pennsylvania Rules of Civil Procedure, specifically Pennsylvania Rule of Civil
Procedure 1019 provides that the material facts upon which a cause of action or defense are based
must be stated in concise and summary form. Defendant's incorporation of any and all provisions
of the Pennsylvania Motor Vehicle Financial Responsibility Law does not place the Plaintiff on
notice of which, if any, defenses she is attempting to raise, and therefore, Plaintiffs maintain that the
attempted incorporation is improper and does not preserve any defenses which may exist under the
Pennsylvania Motor Vehicle Financial Responsibility Law.
24. Denied. This averment is a conclusory allegation unsupported by any factual
statements, Plaintiff Mike McWilliams maintains that the accident resulted from the Defendant
striking the rear of his van as a result of her failure to travel at a safe speed and maintain a safe
distance and be alert to other traffic on the highway. No other individual, entities, or vehicles were
involved in the accident, and the accident and all of Plaintiffs resulting injuries are the direct and
proximate result of the Defendant's conduct as set forth in Plaintiff s Complaint.
25. This averment is a conclusion of law to which no responsive pleading is required.
To the extent that a response may be deemed proper, it is specifically denied that Defendant Linda
Johnson was confronted with a sudden emergency or even that the Doctrine of Sudden Emergency
is applicable to the facts of this case. Plaintiff Mike McWilliams was at all times stopped as the
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Defendant approached from his rear travelling in the same direction as him. The doctrine of
Sudden Emergency does not apply to vehicles travelling in the same direction and does not apply to
essentially static conditions which would be applicable since his vehicle was at a complete stop and
had been prior to Defendant striking the rear of his vehicle.
26. Denied. This paragraph is a conclusory allegation unsupported by any factual
statements. It is specifically denied that Defendant Linda 1. Johnson acted carefully, lawfully,
properly, or prudently or with due care under the circumstances. To the contrary, it is averred that
Defendant was careless, negligent and reckless in failing to travel at a proper rate of speed and
maintain a proper look out and failed to observe Plaintiff s stopped van which was directly in front
of her.
27. Denied. This averment is a conclusory statements unsupported by any factual
statements and, therefore, no responsive pleading is required. To the extent that a response may be
deemed proper, it is specifically denied that Plaintiff Mike McWilliams suffered any pre-existing
condition which caused or contributed to the injuries and damages which he sustained following the
motor vehicle accident. To the extent that Plaintiff Mike McWilliams had any pre-existing or
dormant condition, it is averred that Defendant's conduct aggravated such alleged pre-existing or
dormant condition and that the Defendant is fully responsible for the nature and consequences of her
negligent conduct.
WHEREFORE, Plaintiff respectfully request that this Honorable Court dismiss Defendant's
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New Matter enter judgment in favor of Plaintiff and against Defendant.
lchael E. Kosik, Esquire
I.D. No. 36513
4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff
DATED: 10/16/01
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VERIFICATION
I, MICHAEL MCWILLIAMS, Plaintiff, have read the foregoing Reply to New Matter and
do hereby swear or affirm that the facts set forth in the foregoing 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. Section 4904, relating to unsworn falsification to authorities.
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CERTIFICATE OF SERVICE
AND NOW, this 16th day of October, 2001 I, Michelle M. Milojevich, an employee of
Angino & Rovner, P.C., do hereby certifY that I have served a true and correct copy of the
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER in the United States mail, postage
prepaid at Harrisburg, Pennsylvania, addressed as follows:
Lisa M. DiBernardo, Esquire
Griffith, Strickler, Lerman
Solymos & Calkins
110 South Northern Way
York, PA 17402-3737
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SHERIFF'S RETURN - U.S. CERTIFIED MAIL
CASE NO: 2001-03837 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
MCWILLIAMS MICHAEL L
VS.
JOHNSON LINDA L
R. Thomas Kline
, Sheriff
of Cumberland
County, Pennsylvania, who being duly sworn according to law served the
within named DEFENDANT
,JOHNSON LINDA L
by United States Certified Mail postage
prepaid, on the 6th day of August
,2001 at 0000:00 HOURS, at
.
109 VIRGINIA DRIVE NW
FORT WALTON BEACH, FL 32548-4107
a true
and attested copy of the attached COMPLAINT & NOTICE
Together
with
The returned
receipt card was signed by RETURNED AS UNCLAIMED
00/00/0000
on
Additional Comments:
Docketing
Service
Not Found
Surcharge
Cert Mail
18.00
6.50
5.00
10.00
3.95
43.45
County
Sheriff's Costs:
Paid by ANGINO & ROVNER
on 08/06/2001 .
Sworn and subscribed to before me
this ~IE. day of r.;o"1 u-<.P
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
MICHAEL 1. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA L. JOHNSON,
Defendant.
Jury Trial Demanded
CERT~ICATEOFSERVICE
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AND NOW, this \ 1: day of September, 2001, I, Lisa M. DiBernardo, Esquire, a member
of the fIrm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certifY that
I have this date served a copy of the Defendant's InterrogatorieslRequest for Production of
Documents to Plaintiff, as indicated below, addressed to the party or attorney of record as follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
(Counsel for Plaintiff)
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
By
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LISA M. DiBERNARDO, ESQUIRE
Supreme Court ID No. 56684
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant, Linda 1. Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
MICHAEL 1. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO PaRC.P. 1012
TO THE PROTHONOTARY:
Kindly enter the appearance of Robert A. Lerman and Lisa M. DiBernardo of Griffith,
Strickler, Lerman, Solymos & Calkins, as attorneys for the Defendant, Linda 1. Johnson, in the
above-captioned matter and mark the docket accordingly.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY 1{,,1x.-- a - J.~...-
ROBERT A. LERMAN
Supreme Court I.D. #07490
BY fL~D!~~
Supreme Court I.D. #56684
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Date: ~~:t~~001
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL 1. McWILLIAMS,
Civil Action - Law
Plaintiff,
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
Jury Trial Demanded
CERTIFICATE OF SERVICE
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AND NOW, this~yof~, 2001, I, Ft. . LClftlaTI, a member of the firm of
GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certifY that! have this date
served a copy of the Praecipe for Entry of Appearance as indicated below, addressed to the party
or attorney of record as follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
(Counsel for Plaintiff)
[ X ] United States First-Class mail
[ ] facsimile transmission
[ ] personal delivery
[ ] commercial overnight delivery
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
By Ve-::v1~
Robert A. Lerman
Supreme Court ID No. 07490
Attorney for Defendant, Linda 1. Johnson
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
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AFFIDAVIT OF SERVICE
On the 6th day of August, 2001 a true and correct copy of the COMPLAINT Civil Action No.
2001-03837 was mailed by the Cumberland County Sheriffs Office to Linda Johnson via certified mail,
return receipt requested at 109 Virginia Drive, NW, Fort Walton Beach, FL 32548-4107. Said Complaint
was returned to the Cumberland County Sheriff's office as "unclaimed."
This Affidavit is to certifY that pursuant to Pennsylvania Rule of Civil Procedure 403, on the 13th
day of August, 2001, I served by United States mail, postage prepaid, the Complaint upon Linda Johnson at
109 Virginia Drive, NW, Fort Walton Beach, FL 32548-4107 with more than three weeks passing with no
return of the envelope by the post office.
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ANGINO & ROVNER, P.C.
4503 NORTH FRONT STREET
HARRISBURG, PA 1711().1708
RICHARD C. ANGINO
NEIlJ. ROVNER
JOSEI'll M. MELIlLO
TERRY S. HYMAN
DAVlDL LUTZ
717/238-6791
FAX 717/238-5610
WWW.ANGINOROvNER.COM
E-MAIL: MKOSIK@ANGINOROVNER.COM
September 5, 2001
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, P A 17013
RE: McWilliams v. Johnson
No. 01-3837 Civil Term
Dear Sir or Madam:
MICHAEL E. KOSIK
RICHARD A. SADIOCK
JOSEI'll M. DOBlA
JAMES DECINTI
Enclosed please find for filing an Affidavit of Service in the above-captioned action. Please
return a time-stamped copy to me in the envelope provided.
MEK/mmm
Enclosure
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA L. JOHNSON,
Defendant.
Jury Trial Demanded
PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P. 1012
TO THE PROTHONOTARY:
Kindly enter the appearance of Michael B. Scheib, Esquire of Griffith, Strickler, Lerman,
Solymos & Calkins, as attorney for the Defendant, Linda L. Johnson, in the above-captioned
matter and mark the docket accordingly.
By
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS &CA:~S 1
MI HAEL B. CHEIB, ESQUIRE
Supreme Court ID No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717)757- 7602
Attorney for Defendant, Linda L. Johnson
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IN urn COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA L. JOHNSON,
Defendant.
Jury Trial Demanded
CERTIFICATE OF SERVICE
AND NOW, this I ~ay of June, 2002, I, Michael B. Scheib, a member of the firm of
GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this
date served a copy of the PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO
Pa.R.C.P. 1012 by United States Mail, addressed to the party or attomey of record as follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 1711 0-1799
(Counsel for Plaintiff)
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
By
M EL B. S IB, ESQUI
Supreme Court ID No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant, Linda L. Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL 1. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
Jury Trial Demanded
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PRAECIPE FOR WITIIDRA W AL OF APPEARANCE
TO THE PROTHONOTARY:
Kindly withdraw the appearance of Lisa M. DiBernardo, Esquire, as attorney for the Defeudant,
Linda L. Johnson, in the above-entitled matter and mark the docket accordingly.
By
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
~
LISA M. DiBERNARDO, ESQUIRE
Supreme Court ID No. 56684
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant, Linda 1. Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
MICHAEL 1. McWILLIAMS,
Plaintiff,
Civil Action - Law
vs.
No. 01-3837
LINDA 1. JOHNSON,
Defendant.
Jury Trial Demanded
CERTIFICATE OF SERVICE
AND NOW, this~th day of June, 2002, I, Lisa M. DiBernardo, Esquire, a member of the fInn
of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certifY that I have this
date served a copy of Praecipe for Withdrawal of Appearance, by U.S. fIrst class mail, addressed to
the party or attorney of record as follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 17110-1799
(Counsel for Plaintiff)
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
By
UCL
LISA M. DiBERNARDO, ESQUIRE
Supreme Court ID No. 56684
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant, Linda 1. Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS
Plaintiff
Civil Action . Law
vs.
No. 2001-03837
LINDA L. JOHNSON
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
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AND.NOV-/, this~ day of August, ~002, I, Michael B. Scheib, a member of
the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify
that I have this date served the Notice Of Deposition by United States Mail, addressed
to the party or attorney of record as follows:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
GRIFFITH, STRICKLER, LERMAN,
.SOLY ~CA IS
Mich e B. Scheib, E wre
Supreme Court ID No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
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Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
NO. 2001-03837
LINDA 1. JOHNSON,
Defendant
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE
DOCUMENTS AND TIDNGS FOR DISCOVERY PURSUANT TO
RULE 4009.21
Plaintiff intends to serve a subpoena identical to the one attached to this notice. You have
twenty (20) days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made, the subpoena may be served.
Michael E. Kosik, Esquire
J.D. No. 36513
4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff
DATED: 10/17/02
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
MUCHAELL.MC~L~S
Plaintiff Is
versus
LINDA L. JOHNSON
: No. 2001-03837
Defendantls
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Medical Records Dept.
Holy Spirit Hospital
North 21st Street
Camp Hill, PA 17011
Within twenty (20) days after service of this subpoena, you are ordered by the court to
produce the following documents or things: Medical records pertaining to treatment rendered to
Linda 1. Johnson. Date of Birth: 9-14-77 for an automobile accident on 7-6-99 to Angino &
Rovner, P.C., 4503 N. Front Street, Harrisburg, PA 17110.
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right to
seek in advance the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after service, the
party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Telephone:
Supreme Court ID #:
Attorney for:
Michael E. Kosik, Esquire
4503 North Front Street
Harrisburg, P A 1711 0
(717) 238-6791
36513
Plaintiff
Name:
Address:
BY THE COURT:
Date: 10/17/02
Seal of the Court
Prothonotary/Clerk, Civil Division
Deputy
,
CERTIFICATE OF SERVICE
I, Michelle M. Milojevich, of Angino & Rovner, P.C., do hereby certifY that I have served a
true and correct copy of the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA upon
defense counsel by United States mail, postage prepaid, addressed as follows:
Michael Scheib, Esquire
Griffith, Strickler, Lerman
Solymos & Calkins
110 South Northern Way
York,PA 17402-3737
7J'Itddt 1r/ /hJ7~
Michelle M. Milojevich
Date: 10/17/02
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL I. McWILLIAMS,
Plaintiff
Civil Action - Law
vs.
No. 2001-03837
LINDA L. JOHNSON,
Defendant
Jury Trial Demanded
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
AND THINGS FOR DISCOVERY PURSUA~JT TO RULl: 4009.21
Michael B. Scheib, Esquire, counsei for Defendant Johnson, intends to serve a
subpoena identical to the subpoena that is attached to this notice. You have twenty (20)
days from the date listed below in which to file of record and serve upon the undersigned
an objection to the subpoena. If no objection is made, the subpoena may be served.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY:
Mich el B. Sch ib, Esquire
Attorney for Defendant Johnson
Supreme Court i.D. No.
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL I. McWILLIAMS,
Plaintiff
Civil Action - Law
vs.
No. 2001-03837
LINDA L. JOHNSON,
Defendant
Jury Trial Demanded
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
To: Gamber Family Chiropractic
971 York Road
Dillsburg PA 17019
Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the
following documents or things:
Anv office notes. reports. records. memoranda. correspondences to and from attornevs. insurance
companies and other phvsicians, diaQnostic tests and/or reports. consultation reports. x-raYs, prOQress
notes. hospital records. nurses notes. admissions and discharQe summaries and records and reports of
examinations and anv other medical records of any kind pertaininQ to Linda L. Johnson109 VirQinia
Drive. Fort Walton Beach. Florida 32548; Date Of Birth: 9/14/77.
at 110 South Northern Wav. York, PA 17402
You may deliver or mail legible copies of the documents or produce things requested by this Subpoena,
together with the certificate of compliance, to the party making this request at the address listed above.
You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the
things sought.
If you fail to produce the documents or things required by this Subpoena, within twenty (20) days after its
service, the party serving this Subpoena may seek a Court Order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME:
ADDRESS:
Michael B. Scheib. Esquire
GRIFFITH. STRICKLER. LERMAN. SOL YMOS & CALKINS
110 South Northern Way, York, PA 17402
(717) 757-7602
63868
Plaintiff Johnson
TELEPHONE:
SUPREME COURT ID:
ATTORNEY FOR:
BY THE COURT:
DATE:
Seal of Court
Prothonotary / Clerk, Civil Division
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL I. McWILLIAMS,
Plaintiff
Civil Action - Law
V5.
No. 2001-03837
LINDA L. JOHNSON,
Defendant
Jury Trial Demanded
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Defendant, Linda 1. Johnson, certifies that:
(1) a notice of intent to serve the subpoenas with copies ofthe subpoenas attached
thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which
the subpoenas are sought to be served, or the twenty (20) day period has been waived by
opposing counsel.
(2) a copy of the notice of intent, including the proposed subpoenas, is attached to this
certificate,
(3) no objections to the subpoenas have been received, and
(4) the subpoenas which will be served are identical to the subpoenas which are attached
to the notic
~ntent to serve the subpoenas.
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Date:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL I. McWILLIAMS,
Plaintiff
Civil Action - Law
vs.
No. 2001-03837
LINDA L. JOHNSON,
Defendant
Jury Trial Demanded
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Defendant, Linda 1. Johnson, certifies that:
(1) a notice of intent to serve the subpoenas with copies of the subpoenas attached
thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which
the subpoenas are sought to be served, or the twenty (20) day period has been waived by
opposing counsel.
(2) a copy of the notice of intent, including the proposed subpoenas, is attached to this
certificate,
(3) no objections to the subpoenas have been received, and
(4) the subpoenas which will be served are identical to the subpoenas which are attached
to the notice of intent to serve the subpoenas.
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) (x)
for JURY trial at the next term of civil court
o
for trial without a jury
CAPTION OF CASE
(entire caption must be stated in full)
( check one)
o
o
(x)
o
Assumpsit
Trespass
Trespass (Motor Vehicle)
Other
MICHAEL 1. McWILLIAMS,
Plaintiff
The trial list will be called on Dec. 14,2004.
v.
Trials commence on January 18,2005.
LINDA 1. JOHNSON
Defendant
Pre-trials will beheld on Dec. 22, 2004 (Briefs
are due 5 days before pre-trials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to all
counsel, pursuant to local Rule 314-1.)
No. 2001-03837 Civil
Indicate the attorney who will try case for the party who files this praecipe:
Michael E. Kosik, Esquire, 4503 N. Front Street, Harrisburg, PA 17110
Indicate trial counsel for other parties if known:
Michael Scheib, Esquire, Griffith, Strickler, Lerman, Solymos & Calkins,
110 South Northem Way, York, PA 17402-3737
This case is ready for trial. mV
signeVM
Print Name: Michael E. Kosik
Attomey for Plaintiff( s)
Date: 10/22/04
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
LINDA L. JOHNSON,
Defendant
01-3837 CIVIL TERM
PRETRIAL CONFERENCE
AND NOW, this 22nd day of December, 2004, before Edgar
B. Bayley, Judge, present for the plaintiff was Michael E.
Kosik, Esquire, and for the defendant, Michael B. Scheib,
Esquire.
This case arises out of an automobile accident that
occurred on July 6, 1999, at the intersection of Route 15 and
Market .Street in Camp Hill. Defendant's vehicle struck
plaintiff's vehicle from the rear. Negligence is admitted.
Plaintiff claims that he suffered a knee injury.
Defendant denies causation. Plaintiff seeks noneconomic
damages. . He is a plumber and seeks a little over $6,000.00 in
additional costs for hiring help for him to complete jobs as a
result of his injuries. Defendant maintains that this is
actually a lost wage claim for which first party benefits have
not been exhausted. If plaintiff seeks to recover these claimed
amounts, he should file a memorandum of legal support with the
trial judge at the
Estimated.time of
Edgar B. Bayley, J.
J
Michael E. Kosik, Esquire
For Plaintiff
Michael B. Scheib, Esquire
For Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWilLIAMS,
Plaintiff
No. 2001-03837
vs.
CIVil ACTION - lAW
JURY TRIAL DEMANDED
LINDA L. JOHNSON,
Defendant
MOTION IN LIMINE OF DEFENDANT LINDA JOHNSON
COME NOW, Defendant, Linda Johnson, by and through her attorneys,
GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, and Michael B. Scheib,
Esquire, and files this Motion in Limine. Defendant Johnson requests the Court to:
1. Preclude Mention of Insurance;
2. Preclude any testimony that Mr. McWilliams suffered a knee injury as a
result of this motor vehicle accident;
3. Preclude any testimony that Mr. McWilliams sustained lost wages as a
result of this;
4. Preclude any mention that Defendant Johnson received a traffic citation as
a result of this matter; and
5. Preclude portions of Dr. Smarsh's testimony.
I. MOTION IN LIMINE TO PRECLUDE ANY MENTION OF INSURANCE.
The general rule in Pennsylvania is that evidence of insurance is irrelevant and
justifies a grant of mistrial. See Divelv vs. Penn Pittsburqh Corporation, 332 Pa. 65,
A.2d 831 (1938); Paxton National Insurance Companvvs. Brickailik, 513 Pa. 627, 522
A.2d 531 (1987). The mention of insurance or the fact that the Defendant has
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insurance coverage for this lawsuit would prejudice the Defendant and would require a
mistrial. Phillips vs. Shoenberaer, 369 Pa. Super. 52, 534 A.2d 1075 (1975).
WHEREFORE, Defendant, Linda Johnson respectfully requests this Honorable
Court to enter an Order to preclude the parties, the attorneys and all witnesses from
using the word "insurance" during their testimony, or inferring, implying or testifying that
the Defendant is covered under a liability policy.
II. MOTION TO PRECLUDE ANY TESTIMONY THAT PLAINTIFF McWILLIAMS
SUFFERED A KNEE INJURY AS A RESULT OF THIS MOTOR VEHICLE
ACCIDENT
In the Complaint Plaintiff alleges that he suffered a knee injury which required
surgery as a result of this motor vehicle accident. The knee surgery was performed by
Dr. Kaneda, who is with Orthopaedic Institute of Pennsylvania. Dr. Kaneda will not
testify at the trial of this matter. Thus, there will be no testimony from Dr. Kaneda that
the knee surgery which he performed in June, 2000 was related to this motor vehicle
accident.
Plaintiff has video taped the testimony of Dr. Stephen Wolf. Dr. Wolf is also
associated with Orthopaedic Institute of Pennsylvania. Dr. Wolf did not treat Mr.
McWilliams for the knee injury. Dr. Wolf did not give any testimony regarding the knee
treatment. Similarly, he did not testify that the knee injury and/or knee surgery was
related to the motor vehicle accident which is the subject of this lawsuit.
Mr. McWilliams is not a medical doctor. He does not have the specialized
knowledge which will allow him to give any medical opinions. See Pa. R.E.701.
Accordingly Defendant Johnson requests that this Honorable Court preclude any
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testimony that Plaintiff McWilliams suffered a knee injury as a result of this motor
vehicle accident.
III. MOTION TO PRECLUDE ANY TESTIMONY THAT PLAINTIFF McWILLIAMS
SUSTAINED LOST WAGES AS A RESULT OF THIS MOTOR VEHICLE
ACCIDENT
Plaintiffs Complaint alleges that he has a claim for lost wages or loss of earning
capacity.
Plaintiff has renewed this allegation in his Pre-Trial Conference Memorandum.
Plaintiff, however, does not have a valid claim for lost wages.
Plaintiff had first party wage benefits from Erie Insurance Company. Plaintiff,
however, has not applied for first party wage benefits from Erie Insurance Company.
At this time Plaintiff clearly has not exhausted his first party wage benefits.
Section 1722 of the Motor Vehicle Code provides that in an action against a tort
feasor a person who is eligible to receive first party wage benefits shall be "precluded
from recovering the amount of benefits paid or payable" under this chapter. 75 Pa. C.S.
91722.
As previously stated Plaintiff had first party wage benefits. Plaintiff has never
submitted any documentation to the first party carrier in order to receive these wage
benefits. Accordingly Defendant Johnson requests this Honorable Court to preclude
any testimony that Plaintiff McWilliams sustained any lost wages as a result of this
motor vehicle accident.
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IV. MOTION TO PRECLUDE ANY MENTION THAT DEFENDANT JOHNSON
RECEIVED A TRAFFIC CITATION AS A RESULT OF THIS MOTOR VEHICLE
ACCIDENT
Linda Johnson received a citation from Officer Michael Bingham as a result of
this motor vehicle accident. Ms. Johnson simply paid the citation. She did not contest
it.
Evidence that a party has received a traffic citation and has been convicted of a
traffic violation is inadmissible in a civil suit. Eastern Express. Inc. vs. Food Haulers.
Inc., 445 Pa. 432, 285 A.2d 152 (1971); Louahner vs. Schmelzerk, 421 Pa. 283, 218
A.2d 768 (1966); Napolitan vs. Harpe, 432 A.2d. 608, 288 Pa. Super. 468 (1989);
Simpson vs. Robinson, 238 Pa. Super. 555, 361 A.2d 387 (1976); Shepard vs. Martin
Century Farms, 245 Pa. Super. 552, 369 A.2d 765 (189977). Accordingly, counsel for
Defendant Johnson respectfully requests this Honorable Court to issue an Order which
would preclude all parties, their counsel and any witnesses from making any mention of
the fact that Defendant Johnson may have been issued a traffic citation as a result of
this accident.
V. PRECLUDE PORTIONS OF DR. SMARSH'S TESTIMONY
Plaintiff sought treatment from a chiropractor, Dr. Smarsh. During his deposition,
Plaintiff introduced progress reports from Dr. Smarsh.
Dr. Smarsh was asked several questions which related to Mr. McWilliams'
prognosis. Defendant Johnson objected to these questions because Dr. Smarsh had
never disclosed any opinions about the prognosis for Mr. McWilliams (See pages 34 -
35).
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A copy of Dr. Smarsh's office notes was attached to the deposition transcript. Dr.
Smarsh's progress reports provide that the problems originated in March, 1999. Mr.
McWilliams' file does not contact a written report which sets out Dr. Smarsh's opinion
regarding Mr. McWilliams' progress as a result of the motor vehicle accident.
Rule 4003.5 (c) of the Rules of Civil Procedure provides that the direct testimony
of the expert at trial may not be inconsistent with or go beyond the fair scope of his
previously disclosed opinions. In the present case Plaintiff has never disclosed any
report, records or narrative letter which sets forth Dr. Smarsh's opinions as it related to
Mr. McWilliams need for future treatment or as it relates to this motor vehicle accident.
Rather, Dr. Smarsh's records indicate that the problem originated in March, 1999,4
months before this motor vehicle accident. In light of this, the testimony of Dr. Smarsh
should be precluded.
WHEREFORE, Defendant Johnson respectfully requests this Honorable Court to
grant this Motion to Preclude those portions of Dr. Smarsh's testimony.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY:
]M~JU
MICHAEL B. SCHEIB, ESQUIRE
Attorney 1.0. No. 63868
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Attorney for Defendant Johnson
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff
No. 2001-03837
vs.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
LINDA L. JOHNSON,
Defendant
CERTIFiCATE OF SERVICE
AND NOW, this J "b ~ day of January, 2005, I, Michael B. Scheib, a member of the
firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have,
this date, served a copy of the Motion in Limine of Defendant Johnson by hand delivery to:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
GRIFFITH, STRICKLER, LERMAN,
SOLYMOS & CALKINS
BY:
Michae . cheib, Esquire
Attorney for Defendant Johnson
Supreme Court I.D. No. 63868
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff
No. 2001-03837
vs.
CIVIL ACTION - LAW
LINDA L. JOHNSON,
Defendant
JURY TRIAL DEMANDED
SPECIAL VERDICT SLIP
1. Was the negligence of Defendant Linda Johnson a factual cause in Plaintiff
Michael McWilliams' harm?
Yes No /'
IF YOU ANSWER "YES" TO QUESTION NO.1, PROCEED TO QUESTION NO.2.
IF YOU ANSWER "NO" TO QUESTION NO.1, RETURN TO THE COURTROOM.
2. State the amount of damages, if any, sustained by Plaintiff Michael McWilliams as
a result of the motor vehicle accident
III q 10S'
DATE
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DOCKET NO.: 01- 3'13"1
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~ 76 1/v ALKER, SAlvlUEL
2 96 HOG:H, JACQUELINE N.
, ,~ CEPJ.!!JID, EmmIE L.
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4 90 BANK, JUDITH B.
.' 97 GRUVER, TIMOlliY A.
6-- 99 R:ICKl'.l'oJOACH, jUAI<I ~.
7 87 CASSATT, CRAIG
g 56 HO, T~NN.
~ 93 PORTER, ROBYN
10 ~g W.QL~
II 94 KOSER, JESSICA
1.2 69 CAlvlBb:E, /ALillSE C.
1'1 72 HILLMAN, LUCILLE M.
14 65 DAVIS,JLAWRENCE
l.~ 53 l"-OU\JJj.tiA!{!, M!L.tiAtL 1'\.
Ie) 86 P ASENELLI, STEPHANIE
17 ::;7 KING, '{!8~-:--
18 85 SMITH, CYNTHIA
]9 53 BROOKER, KENNETH L. III
211 Y5 MOTTIlIU<I, vvANDA--
7 ' 73 KELUNGER, REBECCA G.
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:~2 98 SIMPSON, GRAc:E.. A
7' 55 SGIGNOL, DOUGLAS M.
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24 81 WILLIAMSON, JOAN
2'; 59 MONTGOMERY, STEVE A.
26 79 STICKLER, JAMES
";7 54 GILMORE, SHAWN
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2S 84 SHOGREN, HARRY
29 62 MCFARLAND, CHARLENE
30 68 PASLEY, CAROL A.
31 82 KEINTZ, DONNA MARIE
32 77 SHEAFFER, WENDY S.
1.1 61 DE ANGELIS, JANET
34 91 MURRAY, NATHAN
35 74 ANDERSON, CHARLES E
Tuesday, January 18, 2005
Random No.
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.1848781391
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-1150447109
-1132196122
-1062944317
-993312440
-693613875
-480278962
-458221379
-443225488
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87337983
509684137
594725429
728679154
992619296
1181455902
1214971938
1271361109
1475653559
1491149180
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWILLIAMS,
Plaintiff
No. 2001-03837
VS.
CIVIL ACTION - LAW
LINDA L. JOHNSON,
Defendant
JURY TRIAL DEMANDED
TO THE PROTHONTOARY:
ENTER JUDGMENT in the above case based upon the jury's verdict dated January 20,
2005, against Plaintiff Michael McWilliams, in favor of Defendant Linda L. Johnson.
I hereby certify that the attached Praecipe is a true and correct copy of the original
Praecipe that was mailed to the Plaintiff (and his attorney) on the ffiy of February,
2005, pursuant to PaRe.P. 237.1.
}:eJ") .
7
, 2005, Judgment entered by the Prothonotary this
day according to the tenor of the above statement.
Prothonotary
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. McWilLIAMS,
Plaintiff
No. 2001-03837
vs.
CIVil ACTION - LAW
JURY TRIAL DEMANDED
LINDA L. JOHNSON,
Defendant
() Notice is hereby given that a iudament.
in the above-captioned matter has been entered against you on
f~. If
,2005.
( ) A copy of all documents filed with the Prothonotary in support of the within
judgment is/are enclosed.
Prothonotary Civil Div.
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If you have any questions regarding this Notice, please contact the filing party:
NAME: MICHAEL B. SCHEIB, ESQUIRE
ADDRESS: 110 South Northern Way
York, PA 17402
TELEPHONE NO.: (717) 7575-7602
This Notice is given in accordance with Pa.R.C.P. 236.
Notice sent to:
NAME:
Michael E. Kosik, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
.
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