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HomeMy WebLinkAbout01-05260SHERIFF'S RETURN - OUT OF COUNTY CASE NO:~ 2001-05260 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS HENDERSON GERALD ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: HENDERSON GERALD but was unable to locate Him deputized the sheriff of DAUPHIN serve the within WRIT OF SUMMONS County, Pennsylvania, to On June 4th 2002 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 18.00 Surcharge 10.00 Dep Lebanon Co. 53.34 Dep Dauphin Co. 36.50 135.84 06/04/2002 IRA WEINSTOCK So answer R. Thomas ine Sheriff of Cumberland County Sworn and subscribed to before me this •i~ day of ~„ o2-/3f9.2i A . D . Q (~ n D,w ~ A-Qali~ ~~~ Prothonotary ~ in his bailiwick. He therefore SHERIFF'S RETURN - OUT OF COUNTY CASE NO :` 2001-05260 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS HENDERSON GERALD ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: BIBLE RUSSELL M but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On June 4th 2002 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 06/04/2002 IRA WEINSTOCK So answer i R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~ ~ day of . u,,,` o2Al~,~ A.D. ~ „~ e © .Opi. a Prothonotaf-y~ ~:. (~~~~.~cQ ~~ ~e ~~~xrff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717)255-2660 fax: (717)255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin KOCH ROSE MARY vs BIBLE RUSSELL M J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Sheriff's Return No. 1355-T - - -2002 OTHER COUNTY NO. 01-5260 AND NOW:May 31, 2002 COMPLAINT BIBLE RUSSELL M to HIM of the original at 12:15PM served the within upon by personally handing COMPLAINT and making known to him/her the contents thereof at DAUPHIN COUNTY SHERIFF'S OFFICE, RM. 104 FRONT & MARKET STREETS HARRISBURG, PA 17101-0000 Sworn and subscribed to before me this 31ST day of MAY, 2002 tom. f l?~ PROTHONOTARY So Answers, ~~~~~~ Sheriff of Dauphin County, Pa. ~j ~-- By j / Deputy Sher' f Sheriff's Costs: $36.50 PD 05/24/2002 RCPT NO 164805 1 true attested copy(ies) KSTUMP C1~~~.~.xQ ~~ .e ~5.~~x~ f.~ Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack I,otwick Sheriff Commonwealth of Pennsylvania County of Dauphin KOCH ROSE MARY vs • BIBLE RUSSELL M Sheriff's Return No. 1355-T - - -2002 OTHER COUNTY NO. 01-5260 AND NOW:May 28, 2002 COMPLAINT HENDERSON GERALD at 3:46PM served the within upon by personally handing to HIM of the original 1 true attested copy(ies) COMPLAINT to him/her the contents thereof at DAUPHIN COUNTY SHERIFFS OFFICE, RM. 104 FRONT & MARKET STREETS HARRISBURG, PA 17101-0000 Sworn and subscribed to before me this 31ST day Hof MAY, 2002 ~.. ,~"/~ ( PROTHONOTARY So Answers,+~~~ and making known REDMOND Sheriff's Costs: $36.50 PD 05/24/2002 RCPT NO 164805 REINSTATED NOTICE & COMPLAINT No. 01-5260 CIVIL Lebanon, PA, May 15, 2002 ROSE MARY KOCH, ET AL (RETURN TO CUMBERLAND CO. SHERIFF) vs. DOCKET SAGE 17801 GERALD HENDERSON & RUSSELL M. BIBLE STATE OF PENNSYLVANIA COUNTY OF LEBANON SS: Kirk Juliani, Deputy Sheriff, being duly sworn according to law, deposes and says that after due and diligent search by him having been made in this bailiwick, and after having exhausted all known facets to locate defendant, as stipulated under Rule of Civil Procedure, Rule 430, "good faith effort," he was unable to find GERALD HENDERSON & RUSSELL M. BIBLE, the within named DEFENDANTS, and he therefore returns "NOT FOUND" as to the said GERALD HENDERSON & RUSSELL M. BIBLE, the within named Defendants. *NOTE: Deputy Juliani checked once again with the Palmyra Post Office, and was informed that the given address of 392 Dairy Lane, Palmyra, is located in Dauphin County. He also checked with Lebanon County Assessment Office who verified that 392 Dairy Lane, Palmyra, is not in Lebanon County. Sworn to and subscribed before me this 15th day of May, A.D., 2002 `~~~~ynJ Notary Public ~ IGOTARIAL SEAL NANCY L. SIARNER. Notary Pablic 'Lebanon. LEbanon Ctdnty, Pa. My Commission Expires Audust 6. ~a0~ SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced costs paid on 5/3/02 Check No. 36464 Amount 100.00 Costs incurred: Amount 53.34 Refund: Check No. 11787 Amount 46.66 All Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 Return this form to Cumberland Count Sheriff's of y fice. In The C®a~rr~ ®f.Caan~n ~le~s ~f Cuffiber~an~ C®un>ry, Pen~sylv~~aaa 'Rose Mary Koch et al Gerald Hend rsson et al "SERVE: Russell M. Bible No. O1 5260 civil NOW, May 21, 2002 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~'.~P Sheriff of Cumberland County, PA Af'ficlavit ®f Service Now, within upon at 20_, at o'clock M. served the by handing to a copy of the original and made known to So answers, Sheriff of COSTS Sworn and subscribed before SERVICE _ me this _ day of , 20~ MILEAGE _ AFFIDAVIT the contents thereof. County, PA Return this foam to Cumberland County Sheriff's office. In 't'he C®urt ®~' C~®n PI~~s ®f ~uffiberland C®u~~y, P~~~sylv~r<n~~ Rose Maly Koch et al Gerald HendeV.rsson et a1 SERVE: same No. 01 5260 civil j~Tpw May 21, 2002 hereby deputize the Sheriff of I, SHERIFF OF CUMBERLAND COUNTI', PA, do Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~.~ Sheriff of G~mberland County, PA Af~davat ®f Service Now, wlthill upon at by handing to a and made lulown to So answers, Sheriff of Sworn and subscribed before me this.- day of , 20_ 20_, at o'clock M. served the copy of the original COSTS SERVICE $ MILEAGE AFFIDAVIT the contents thereof. County, PA Return this form to C~snberland County Sheriff's office. In The C®urt ®f Coynrn®n Pleas ®f Cumberland ~®unty, Pennsylvania Rose Mary Koch et al V5. Gerald Henderson et al SERVE: same No. O1 5260 civil Now May 1, 2002 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .~-t Sheriff of Cumberland County, PA Affidavit ®f Sei°vice Now, within upon at by handing to a and made known to copy of the original the contents thereof. 5o answers, Sheriff of Sworn and subscribed before me this _ day of , 20_ 20 , at o'clock M. served the COSTS SERVICE $ MTL,EAGE AFFIDAVIT County, PA ' Return this form to Gwnberland County Sheriff's office. Y In Tlae C®urt ®f Carmmnnn fleas ®f Cumberland C®unty, Pennsylvania Rose Mary Koch et al Gerald Henderson et al SERVE: Russell M. Bible No. Ol 5260 civil Now, May 1, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff: ,~/~ Sheriff of Cumberland County, PA Afibdavit of Service Now, within upon at by handing to a and made known to So answers, Sheriff of Sworn and subscribed before me this _ day of , 20~ 20_, at o'clock M. served the copy of the original COSTS SERVICE $ MILEAGE AFFIDAVIT the contents thereof. County, PA ~~ `Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy I.D. No. 82164 301 Muket Sheet P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 ROSEMARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED BRIEF IN SUPPORT OF DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFFS' COMPLAINT I. PROCEDURAL HISTORY AND STATEMENT OF THE FACTS This action arises out of a motor vehicle accident which occurred on September 10, 1999. Plaintiffs filed a Praecipe for Writ of Summons on September 6, 2001, in the Court of Common Pleas of Cumberland County, Pennsylvania, directing the Prothonotary to issue a Writ of Summons against Defendants Gerald Henderson and Russell M. Bible. The Praecipe for Writ of Summons identifies the address for both Defendants as 392 Derry Lane, Palmyra, Pennsylvania 17078. Per the instructions of Plaintiffs' counsel, the Cumberland County Prothonotary issued the Writ of Summons and forwarded it to the Cumberland County Sheriff's office for service upon the Defendants. See Witmer deposition, Exhibit 3. The Cumberland County Sheriff's office received the Writ of Summons on September 7, 2001, and deputized the Lebanon County Sheriff's office for service of the Writ of Summons upon Defendants Gerald Henderson and Russell Bible. See Goodhart deposition, page 5. JAN 0 7 ZOQ3 Attorneys for Defendants C~ O p~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 Civil Term r On September 24, 2001, the Lebanon County Sheriffs office sent a Sheriff's Return to the Cumberland County Sheriff indicating that he was unable to find Defendants Gerald Henderson and Russell M. Bible, and therein noting, "according to Deputy Juliani, the Defendants reside outside of this bailiwick [Lebanon County], most likely living in Dauphin County, PA." See Goodhart deposition, Exhibit 3. On September 28, 2001, the Cumberland County Sheriff filed with the Prothonotary separate Sheriffs Returns for each Defendant, indicating that the Lebanon County Sheriff was unable to locate each Defendant in Lebanon County. See Goodhart deposition, Exhibits 1 and 2. On September 25, 2001, the Cumberland County Sheriffs office issued a refund check in the amount of $44.32, made payable to "Ira Weinstock," attorney for Plaintiffs. It is the regular business practice of the Cumberland County Sheriffs office to mail both the refund check and a copy of the Sheriffs Return to Plaintiffs' counsel. See Goodhart deposition, pages 7-g. Plaintiffs' counsel received the refund check from the Cumberland County Sheriff sometime after September 25, 2001. Plaintiff's counsel endorsed the refund check, "Pay to the Order of Dauphin Deposit Bank & Trust Company, Ira H. Weinstock, P.C.," and processed the refund check on October 1, 2001. See Goodhart deposition, page 9. On March 18, 2002, Defendants' counsel filed a Rule to File Complaint directing Plaintiffs' counsel to file a Complaint in the above-captioned matter within thirty (30) days thereof. Plaintiffs filed their Complaint on March 27, 2002. Defendants subsequently filed their Preliminary Objection to Plaintiffs' Complaint, claiming Plaintiffs failed to serve the Writ of Summons within thirty (30) days as required by Pa. R.C. P. 401(a), or to re-issue said Writ pursuant to Pa.R.C.P. 401(b)(1). Plaintiffs filed their Complaint on March 27, 2002. Plaintiffs later attempted to effectuate service of original process by having the Cumberland County Sheriff serve Defendants with the Complaint. Several attempts to serve the Defendants failed, which as a result necessitated having the Complaint reinstated on April 26, 2002, and again on May 20, 2002. Original service was finally effectuated by serving the reinstated Complaint upon Defendants Gerald Henderson and Russell Bible by the Dauphin County Sheriff's office on or about May 28, 2002. 2 .d==mss _.......~. .._. 1 _ I .I. ., san~uaESUr.,+w,. r 11. STATEMENT OF QUESTION PRESENTED Issue: Should service be stricken and the case be dismissed where Plaintiffs failed to effectuate service of the Writ of Summons, failed to immediately and continually reissue the Writ of Summons until service was made, and in fact, did. not serve original process until in excess of nine (9) months after the running of the applicable statute of limitations? Suggested answer: Yes. III. ARGUMENT A. Process must be stricken where Plaintiffs failed to immediately and continually reissue the Writ of Summons after the expiration of the applicable limitation period. Pa.R.C.P. 401 provides, in pertinent part: "Original process shall be served within the Commonwealth within thirty (30) days after the issuance of the Writ or the filing of the Complaint." Pa.R.C.P. 401(a). This Rule for service of original process becomes problematic, however, when service of the Writ is not effectuated prior to the running of the applicable statute of limitations. In order to curtail abuses by plaintiffs and to ensure fundamental fairness for litigants, the Pennsylvania Supreme Court developed and further refined what has become known as the "Equivalent Period Doctrine," which provides plaintiffs an opportunity to effectuate service of original process upon defendants after the running of the applicable statute of limitations. However, the Equivalent Period Doctrine has been refined to place affirmative duties upon plaintiffs to ensure that agood-faith effort has been made to effectuate service of original process in a timely fashion. Pennsylvania courts originally adopted a rule developed through case law which provided that in actions commenced by issuance of a writ of summons, the plaintiff could continue process to keep his cause of action alive by reissuing the writ within a period of time equivalent to the statute of limitations applicable to the cause of action. See Zarlinsky v. Laudenslager, 167 A.2d 317 (Pa. 1961). This became known as the "Equivalent Period Doctrine." Thus, the plaintiff could keep the action alive for a period equivalent to the applicable statute of limitations, even though service had not been effectuated, by reissuing the writ during 3 i _ _ _~~___ li ~i?., r that period. The purpose of this rule was "to free the plaintiff from the risk that the statute of limitations may bar him if he acts in time, but someone else fails to act in time." 1_amp v Heyman, 366 A.2d 882, 887 (Pa. 1976), quoting Salay v Brame, 235 A.2d 368, 371 (Pa. 1967). The Equivalent Period Doctrine, as enunciated in Laudensl~er, led to abuses inherent in the Rule. For example, it had apparently become common for counsel to file a praecipe for writ of summons, but instruct the Prothonotary not to deliver the writ to the Sheriff for service. In Lamn, the Supreme Court of Pennsylvania refined the Equivalent Period Doctrine by holding: "A writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Id. at 889. Thus, the Court was attempting to curtail abuse by plaintiffs counsel and preserve fairness and equity on the part of the defendants by requiring plaintiffs counsel from abstaining from any conduct which might prevent defendants from being served with original process. The Equivalent Period Doctrine was further refined in Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757 (Pa. 1986), in which the Supreme Court of Pennsylvania required that not only must plaintiffs refrain from conduct which serves to stall service of original process, but plaintiffs must also make a good faith effort to effectuate service. In revisiting its decision in Lamo, the Court stated that "Lamo requires of plaintiffs agood-faith effort to effectuate notice of commencement of the action. Although this good-faith requirement is not apparent from a reading of the rule itself, we interpret the rule mindful of the context in which it was announced." Farinacci at 759. Thus, Farinacci further refined the Equivalent Period Doctrine to require that plaintiffs make agood-faith effort to effectuate service of original process upon defendants after the running of the applicable statute of limitations. The Supreme Court of Pennsylvania further refined the Equivalent Period Doctrine, as announced in its opinion in Witherspoon v City of Philadelphia, 768 A.2d 1079 (Pa. 2001), by requiring plaintiffs to take affirmative steps to effectuate service of original process by immediately and continually reissuing the writ. In Witherspoon, plaintiff's counsel filed a praecipe for writ of summons on September 12, 1996, two (2) days prior to the running of the statute of limitations. Plaintiff hired a private process server to serve the writ upon the City of Philadelphia. The private process server was unsuccessful in serving the writ. The private process server later filed an "Affidavit of Service" which the Prothonotary erroneously interpreted to mean that service of original process had been effectuated upon the defendant within thirty (30) days from issuance. Plaintiffs counsel later filed a complaint approximately eight (8) months after the issuance of the writ of summons. The complaint was then served upon the defendant within thirty (30) days of filing the 4 complaint. The City of Philadelphia filed preliminary objections, asserting that the failure to serve the writ within thirty (30) days as required by Pa.R.C.P. 401(a), or to re-issue it pursuant to Pa.R.C.P. 401(b)(1), effectively ended any extension of the two-year statute of limitations which expired on September 17, 1996. The Court of Common Pleas sustained the preliminary objections and ordered the service stricken, effectively terminating plaintiffs action on account of the statute of limitations. On appeal, the Supreme Court of Pennsylvania upheld the Court of Common Pleas' decision to sustain the preliminary objections. In doing so, the Court further narrowed the concept of "good-faith effort" as set forth in Farinacci, by requiring plaintiffs to immediately and continually reissue a writ of summons until service is made. The Court stated: Given the importance of service of original process in completing the progression of events by which an action is commenced, we deem it necessary that where that progression "straddles the line" of the limitation period, the process must be served within the time allowed by the Rules of Civil Procedure or, if service cannot be made, the process must be immediately and continually reissued until service is made. Although Pa.R.C.P. 401(b)(2) states that "[a] writ may be reissued or a complaint reinstated at any time and any number of times" (emphasis added), this cannot be construed to permit the reissuance of a writ or reinstatement of a complaint to "revive" an action as to which the limitation period has expired. Witherspoon at 1084 (emphasis added). The facts in the case at bar are almost identical to those in Witherspoon. Plaintiffs filed a Praecipe for Writ of Summons on September 6, 2001, four (4) days prior to the expiration of the applicable two-year statute of limitations, and failed to serve Defendants with the Writ. Furthermore, service of original process was not effectuated until in excess of nine (9) months after the expiration of the limitation period by serving Defendants with the Complaint. However, unlike Witherspoon, in this case the Sheriffs Returns from both the Lebanon County Sheriffs office and the Cumberland County Sheriffs office clearly indicate that the Defendants were not served with the Writ. See Goodhart deposition, Exhibits 1-3. In this case, there is no confusion or ambiguity caused by the process server in terms of the contents of the Return of Service. Rather, Plaintiffs' counsel is claiming that the Return of Service indicating failure to serve Defendants was never forwarded to them. In her deposition, Ms. Doris Goodhart, Cumberland County Sheriff's office staff assistant in charge of processing civil papers, testified that it is the regular practice of the Cumberland County Sheriff's office to mail a copy of the Return of Service together with the refund check to Plaintiffs' counsel after service has been attempted. See Goodhart deposition, pages 7-9. Ms. Goodhart was able to confirm that a refund check in the amount of $44.32 was issued to Plaintiffs' counsel, Ira Weinstock, Esquire, on September 25, 2001. See Goodhart deposition, page 8. Furthermore, Ms. Goodhart was able to confirm 5 that the refund check was endorsed, "Pay to the Order of Dauphin Deposit Bank & Trust Company, Ira H. Weinstock, P.C.," and processed on October 1, 2001. ee Goodhart deposition, page 9. Given the standard business practice of the Cumberland County Sheriff's office, it is fair to assume that the Sheriffs Return was forwarded to Plaintiffs' counsel together with the refund check. Farinacci and Witherspoon clearly create an affirmative duty on the part of Plaintiffs' counsel to make a good-faith effort to effectuate service of original process. In her deposition, Ms. Linda Witmer, legal secretary for Ira H. Weinstock, P.C., testified that it is possible that Plaintiffs' counsel in fact received the Sheriffs Return, but it may have been misfiled. See Witmer deposition, page 15. Ms. Witmer further testified that because they received a refund check from the Cumberland County Sheriffs office, she assumed that the Writ was served. See Witmer deposition, page 12. Plaintiffs' counsel did not call the Cumberland County Sheriff's office for a copy of the Sheriffs Return, nor did Plaintiffs' counsel take any other steps to ensure that Defendants were properly served. Id. at page 13.' Plaintiffs clearly have not demonstrated the requisite "good-faith to effectuate service of original process" required to toll the statute of limitations. Furthermore, Plaintiffs failed to immediately and continually re-issue the Writ. Plaintiffs have failed to prove that the Cumberland County Sheriffs office in fact failed to send a copy of the Sheriffs Return. It is undisputed that Plaintiffs' counsel received the refund check from the Cumberland County Sheriff's office. Even giving Plaintiffs the benefit of the doubt that the Sheriffs Returns were not included with the refund check, it is not reasonable for Plaintiffs' counsel to "assume" that service of original process has been effectuated simply because a refund check was sent by the Sheriff's office. Such actions do not rise to the level of "good-faith" contemplated in the Supreme Court of Pennsylvania's decisions in Farinacci and Witherspoon. The Plaintiffs have an affirmative duty to ensure that service of original process has been completed. It is not unreasonable to expect legal counsel to take simple steps to confirm service. Assuming, arguendo, that Plaintiffs' counsel did not receive the Sheriffs Return along with the refund check, a simple calendar reminder and telephone call to the Cumberland County Prothonotary would have identified the failed attempt at service of original process. In Support of their position, Plaintiffs claim that blame lies with the Lebanon County Sheriffs office over the issue of whether Defendants resided in Lebanon County or Dauphin County. This argument is without merit. Plaintiffs did not become aware of this issue until after Preliminary Objections were filed on April 8, 2002. 6 .U _ .w ._..vw...._. ...>~ ~~..u... .. ........ .... ..vim,.. _.....~. >. _. ..'wi... rl ~ ~ '~ As set forth above, the Rules for service of process are established to ensure fundamental fairness and equity on the part of defendants. "Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed... Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her ... Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of an action against him or her." Withers oon at 1084, quoting Cintas CoroCoro. v. Lee's Cleaning Services. Inc., 700 A.2d 915, 917-18 (Pa. 1997). In this case, Plaintiffs failed to effectuate service of original process until approximately June 29, 2002, which is in excess of nine (9) months after the expiration of the applicable two-year statute of limitations. It would be manifestly unjust and inherently unfair, as well as contrary to the purposes of the statute of limitations, to permit the limitation period to be tolled for in excess of nine (9) months where Plaintiffs' counsel has failed to make agood-faith effort to effectuate service of original process. As such, service should be stricken and the Complaint against Defendants dismissed. IV. CONCLUSION Plaintiffs failed to make agood-faith effort to effectuate service of original process. The Plaintiffs did not immediately and continually reissue the Writ of Summons and follow up with ensuring that original process had been served. The failure to immediately and continuously reissue the Writ of Summons was due to Plaintiffs' counsel's failure to track the litigation process. Defendants should not be required to answer the Complaint nine (9) months after the expiration of the statute of limitations. For this reason, service of process should be stricken and the Complaint against Defendants dismissed. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: G~ ~c--~ Michae J. Cassidy Attorney I.D. No. 82164 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 assns Attorneys for Defendants 7 v. r CERTIFICATE OF SERVICE AND NOW, this 7l" day of January 2003, the undersigned does hereby certify that he did, on this date, serve a copy of the foregoing Brief upon the other parties of record by causing the same to be faxed and also to be deposited in the Unifed States Mail, first-class postage prepaid, in Lemoyne, Pennsylvania, addressed as follows: Ira H. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 N. Second Street Harrisburg, PA 17102 Fax No. (717) 238-6691 JOHNSON, DUFFIE, STEWART & WEIDNER Mic~iael .Cassidy 8 ROSE MARY KOCH and T. ALLEN KOCH, her husband, yy~~,, - _ JAN 0 6 2003 %h"I~ 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, vs. GERALD HENDERSON and RUSSELL M. BIBLE, NO.01-5260 CIVIL TERM CIVIL ACTION -LAW Defendants. JURY TRIAL DEMANDED BRIEF IN OPPOSITION TO DEFENDANT'S PREL;(MINARY OBJECTIONS I. Procedural History and Facts This action arises as a result of a motor vehicle accident which occurred on September 10, 1999. Plaintiffs commenced the action by filing a Praecipe for Writ of Summons on September 6, 2001. Prior to filing the Praecipe for Writ of Summons, Plaintiffs' counsel had contacted Defendants' insurer on August 17, 2001, notifying the insurance company of Plaintiffs' representation in regard to the matter. See Exhibit A to Plaintiffs' Answer. On August 23, 2001, Paul Gearin, claims specialist for Harleyville Insurance, contacted Plaintiffs' attomey and notified him that he was the claim representative assigned to the case. See Exhibit B to Plaintiffs' Answer. In the aforementioned letter, Mr. Gearin actarowledged that Plaintiffs would be filing a Praecipe for Writ of Summons and that he would contact Plaintiffs' attorney to - discuss the case upon receipt of -the "specials." Id. On August 23, 2001, Plaintiffs' attorney forwarded to Mr. Gearin copies of medical reports and a medical payout log. See Exhibit C to Plnintiffs' Answer. Subsequent to filing the Praecipe for Writ of Summons, Plaintiffs' counsel faxed a copy of the Praecipe to Mr. Gearin on November 12, 2001, at Mr. Gearin's request. See Exhibit D of Plaintiff's' Answer. According to the testimony of Doris Goodhart, a representative from the Cumberland County Sheriffs Office, her office received a copy of the Praecipe on September 7, 2001.1 Goodhart Deposition, pg. 5. The Cumberland County Sheriff deterrnined that the address that was given was a Lebanon County address and, therefore, deputized the Lebanon County Sheriffs Office to serve the Praecipe.Z Id. at IS. On September 24, 2001, the Sheriff of Lebanon County prepared a Return of Service indicating that they were unable to find the Defendants within their bailiwick. The Return of Service was received by the Cumberland County Sheriff s Office on September 25, 2001. Id. at 6-8. Ms. Goodhart testified that the normal procedure utilized by the Sheriffs Office is that once the return of non-service is submitted to them, they, in turn, submit their Return ofNon-Service to the Plaintiff along with a refund check. Id It is undisputed that a refund check in the amount of $44.32 was mailed to Plaintiffs' attorney on September 25, 2001. Ms. Goodhart, however, was unable to say for sure that the Return of Non-Service was included in that mailing. Id. at 17. Ms. Goodhart also testified that they occasionally get calls from secretaries saying that they haven't received a Return of Service. Id. at 18. On March 4, 2002, a Praecipe to Enter Appeazance was filed by C. Roy Weidner, Jr., Esquire, on behalf of the Defendants. On or about Mareh 20, 2002, Defendants' attorney filed-a Rule to File A Complaint. On Mazch 27, 2002, Plaintiffs filed a Complaint and served a copy on ~ Ms. Goodhart testified that she was a staff assistant in the Cumberland County Sheriff s Office and she was responsible for processing civil papers. Goodhart Deposition pg. 4. -The address that was provided was 392 Dairy Lane, Palmyra, Pennsylvania. This was the same address at which the Defendant's were eventually served. Goodhart Deposition pg. I !, /6; Witmer Deposition pg. 9-10. 2 Attorney Weidner. On or about Apri18, 2002, Defendants' attorney filed Preliminary Objections challenging service upon the Defendants and notifying the Plaintiffs for the first time that service had not been properly effected. On April 9, 2002, Plaintiffs' counsel contacted the Sheriff of Cumberland County to determine the status of the service and was advised for the first time that service had not been effected by them. On April 11, 2002, Plaintiffs' counsel submitted a Freedom of Information Request upon the United States Postal Service requesting information regarding the forwarding address of Defendants. See Witmer Deposition, Exhibit No. 2. On or about April 19, 2002, the Postal Service responded indicating that the Defendants resided at the address submitted to the Cumberland County Sheriff. Id. Upon receipt of the information from the Post Office, Plaintiffs' counsel contacted- the Cumberland County Sheriff's Office again requesting them to make service of the Complaint at the address given. See Witmer Deposition, pg. 10. The Cumberland County Sheriff s Office again tried to deputize Lebanon County, however, Lebanon County informed the Cumberland County Sheriff that the Palmyra address was not a Lebanon County address, but rather a Dauphin County address. Id. at 10-I1. The Complaint was then served upon the Defendants by the Dauphin County Sheriff's Office. Id. at 11. II. Issue WHETHER-THE PLAINTIFFS MADE A GOOD FAITH ATTEMPT TO NOTIFY THE DEFENDANTS OF THE ACTION SUCH THAT -THE STATUTE OF LIMITATIONS WAS TOLLED WITHIN THE TIME REQUIRED BY THE PENNSYLVANIA RULES OF CIVIL PROCEDURE? Proposed Answer: Yes. 3 III. Argument A. PLAINTIFFS' EFFORTS TO SERVE THE DEFENDANTS THROUGH THE CUMBERLAND COUNTY SHERIFF'S OFFICE CONSTITUTED A GOOD FAITH ATTEMPT TO EFFECTUATE SERVICE WITHIN THE TIME REQUIRED BY THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. The Pennsylvania Rules of Civil Procedure require that "original process shall be served within the Commonwealth within thirty (30) days after the issuance of the Writ or the filing of the Complaint." See Pa.R.C.P. 401(a). However, in cases where original process has not been served within thirty (30) days, the Courts have considered whether the Plaintiffs have made a "good faith effort to effectuate notice of commencement of the action." Farinacci v. Beaver County Industrial Development, 511 A.2d 757, 759 (Pa. 1986). In Farinacci, the Supreme Court recognized the purpose for the rule, as stated in Lamp v. Hayman, 366 A.2d 882 (Pa. 1976), is "to avoid the situation in which a Plaintiff can bring an action, but by not making a good faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations." Farinacci v. Beaver County Industrial Development, 511 A.2d at 759, quoting, Lamp v. Hayman, 366 A.2d at 889. In Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001), the Supreme Court further expounded upon the requirements for service once again recognizing the purpose of the rule as an attempt to see that "service or at least a good faith attempt at service, as a kind of condition subsequent that must be fulfilled to complete commencement of the action begun by filing the Praecipe." = Id. at 1083. The Court found that the Plaintiff did not make a good faith 4 effort to effectuate service,. however, the facts of Witherspoon are distinguishable from the present case. In Witherspoon, the Plaintiff filed a Praecipe for Writ of Summons on September 12, 1996 and attempted to serve the Writ through a private process server. The process server was unsuccessful and failed to file a Return of Service or Non-Service. On May 7, 1997, the plaintiff filed a complaint to which the defendant filed Preliminary Objections. The Court found that the failure to serve the Praecipe within the thirty days did not rise to the level of a good faith effort and, therefore, the Preliminary Objections were sustained. In its reasoning, the Court specifically points out that the attempt at service was made by a private process server and not by a public official. In particular, the Court found that "Lamp and Farinacci established that any failure regarding follow-up activity that is attributable to the Plaintiff or his agents, rather than public officials, falls outside this purpose." Id. at 1083 (emphasis added). Since Witherspoon chose to use a private firm to make service upon the defendants, Witherspoon was bound by the actions of these agents in the same way that Farinacci was bound by the actions of his attorney. Here, Plaintiffs chose to utilize the Court's agent, the Cumberland County Sheriffls Office. The Praecipe for Writ of Summons, together with a check made payable to the Sheriff, and the required instructions were sent to the Prothonotary and the Sheriff on September 4, 2001. The Cumberland County Sheriffls Office made an error in sending the Praecipe to Lebanon County. Lebanon County, in return, notified the Cumberland County Sheriffs Office that the Defendants were not found in their jurisdiction. However, they failed to notify the Cumberland County Sheriff that the address given was in Dauphin County. 5 The testimony from Ms. Goodhart-establishes that the normal procedure was that the Return of Non-Service is then sent to Plaintiff's counsel along with a refund check. In this case, it is undisputed that a refund check was received by Plaintiffs' counsel, however, it is disputed that the Affidavit of Non-Service was served on Plaintiff's counsel. Ms. Goodhart could not testify for certain that the Affidavit of Non-Service was sent, but rather, testified that that is their normal procedure. She in fact testified that on occasion they receive calls from secretaries saying that they didn't receive a Retum of Service. Goodhart deposition pg. 18. On the other hand, the Plaintiffs presented the testimony. of Linda Witmer. Ms. Witmer testified that she was a secretary in Plaintiffs' counsel office and was responsible for sending out the letter to the Prothonotary and the Sheriff as well as receiving the refund check in the latter part of September 2001. Ms. Witmer testified unequivocally that the Return of Service was not present when the refund check was mailed. Witmer Deposition pgs. 8-9. Ms. Witmer testified that since the refund cheek was not for the full amount, that she presumed that service had been effectuated. The first time Plaintiffs' counsel became aware that service was not properly effectuated was on or about April 8, 2002 when Defendants' counsel filed the Preliminary Objections. Id. at 13. Once it was discovered that the Praecipe had not been served properly, Plaintiffs requested reinstatement of the Complaint and made continuing good faith efforts to locate the Defendants, including contacting the Postal Service to determine the forwarding address. When the Postal Service responded that the address provided by Plaintiffs' counsel was the proper address, it was then determined by the Cumberland Co~mty Sheriff that the address was not in Lebanon County, but rather Dauphin County. 6 The facts of this case -are distinguishable from both Witherspoon and Farinacci in that here the Plaintiffs chose to utilize the Court's agent, the Sheriff of Cumberland County, to effectuate service of the Praecipe. The reason for the delay can be attributed to an administrative breakdown in determining the proper county where Defendants resided and in the failure to submit the Retum of Non-Service as required by Pennsylvania Rule of Civil Procedure 403(g). Ms. Goodhart testified that "... my personal feeling was that most of this problem lies with the Lebanon County return, because the first return in my opinion, doesn't stipulate that that address is not in Lebanon County. It just says they're not in Lebanon County...." Goodhart deposition pg. 14. Because of the miscommunication between the Lebanon County Sheriff and the Cumberland County Sheriff, Cumberland County was left with the misunderstanding that the Defendants did not reside at the address given, when in fact they did. Once the miscommunication was cleazed up, with the assistance of Plaintiff's counsel and the Postal Service, all reasonable steps were taken to see that service was effectuated. B. DEFENDANTS' DID NOT SUFFER ANY PREJUDICE AS A RESULT OF TAE UNTIMELY SERVICE. It is clear, based upon the facts of this case, that Defendants did not suffer any prejudice as a result of Plaintiffs' failure to effectuate timely service on the Defendants and that the entire situation was used simply as a ploy by the Defendants to seek dismissal of the Complaint. Prior to the expiration of the statute of limitations, Defendants' insurance company was contacted by Plaintiffs' counsel on August 17, 2001 notifying them of Plaintiffs' representation in regard to the matter. See Exhibit A to Plaintiffs' Answer. On August 23, 2001,-the insurance company acknowledged receipt of Plaintiffs' notice and acknowledged that Plaintiffs' counsel 7 _ rt ~ ~ _ would be filing a Praecipe for Writ of Summons shortly. On the same date, Plaintiffs' counsel forwaded to the insurance company copies of medical reports and the payout log. See Exhibit C to Plaints' Answer. The Praecipe For Writ of Summons was then filed on September 6, 2001 and on November 12, 2001, at Mr. Gearin's request, a copy of the Praecipe was forwarded to the insurance company. See Exhibit D to Plaintiffs' Answer. On March 4, 2002, Defendants' counsel entered his appeazance and on Mazch 20, 2002 Counsel filed a Rule to File a Complaint, These facts establish that there were ongoing communications between the insurance company and Plaintiffs' counseI_ The insurer was put on notice that the Plaintiffs' were pursuing a cause of action against the Defendants for injuries suffered from the accident on September I0, 1999 and the insurer acknowledged Plaintiff's intentions of filing a Praecipe for Writ of Summons. It is also cleaz that the insurer was awaze of the initiation of a lawsuit when it requested a copy of the Praecipe for Writ of Summons which was faxed on November 12, 2001. This was confirmed by the fact that the insurance company obtained the services of counsel who entered their appearance in March. The fact that the Defendants were placed on notice that the Plaintiffs were represented and that a lawsuit had been initiated, despite the actual official service of the Praecipe, certainly satisfies the Court's public policy concerns that the Defendants be placed on notice and be apprised that they may be subject to liability. Consequently, defendants suffered no prejudice as a result of the absence of service on the actual Defendants. IV. Conclusion WHEREFORE, based upon the foregoing, Plaintiffs respectfully request that Defendants' Preliminary Objections be overruled. Respectfully Submitted, IRA H. WEINSTQCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 By: a~ ~. ~~ OHN B. DOU HE TY Attorney LD. No. 70680 CERTIFICATE OF SERVICE AND NOW, this 3rd day of January, 2003, I, John B. Dougherty, Esquire, attorney for Plaintiffs, hereby certify that I served the within BRIEF IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS this day by depositing the same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: C. Roy Weidner, Jr., Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P:O. Box 109 Lemoyne, PA 17043-0109 HN B. DOUG ER . ~, ~... Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Marl~et Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAEC/PE TO ENTER APPEARANCE AND NOW, this 4"' day March, 2002, enter the appearance of C. ROY WEIDNER, JR., I.D. 19530 on behalf of Defendants in the above captioned suit. :155096 5774389 JOHNS , DUFFIE WART &WEIDNER eidner, Jr. ~~. CERT/FICATE OF SERV/CE AND NOW, this 4`h day of March, 2002, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Ira H. Weinstock, Esquire Ira H. Weinstock, P.C. 800 North Second Street Harrisburg, PA 17102 JOHNSON, DUFFIE, STEWART & WEIDNER Michelle Hagy c'> c ~~ c F~ -~ -~~. ~sT -, a - ~- ~~_ ~~ ;,, Y <' < :° >- :,. -- ~r, ~~ _ .~. ~ , ~._c5 iTi Tj r `-" ! ORIGINAL ~~. ROSE MARY KOCH AND T. :IN THE COURT OF COMMON PLEAS ALLEN KOCH, HER HUSBAND :OF CUMBERLAND COUNTY PENNSYLVANIA PLAINTIFFS V GERALD HENDERSON AND RUSSELL M. BIBLE, DEFENDANTS DEPOSITION OF TAKEN BY: BEFORE: DATE: PLACE: APPEARANCES: N0. 01-5260 CIVIL TERM :CIVIL ACTION - LAW :JURY TRIAL DEMANDED DORIS GOODHART DEFENDANT TAMMY L. BOCK, REPORTER-NOTARY PUBLIC OCTOBER 2, 2002, 9:01 A.M. CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA LAW OFFICE OF IRA H. WEINSTOCK, P.C. BY: JOHN B. DOUGHERTY, ESQUIRE FOR - PLAINTIFFS JOHNSON, DUFFIE, STEWART & WEIDNER BY: C. ROY WEIDNER, JR., ESQUIRE FOR - DEFENDANTS NDV 1 T 2002 ;;TEUt~p `~i~r"~f =~%1~Cl~ah'EFi I " 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • fax 717.540.0221 ~ Lancaster 717.393.5101 z C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITNESS DORIS GOODHART BY MR. WEIDNER BY MR. DOUGHERTY EXAMINATION 3, 19 12 EXHIBITS GOODHART EXHIBIT N0. 1. DOCUMENT 2. DOCUMENT 3. DOCUMENT 4. LETTER PRODUCED & MARKED 5 6 6 20 ~- ~ 3 I 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 1a 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. DORIS GOODHART, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. WEIDNER: Q Is it Mrs Goodhart? A Yes. Q Okay. My name's Roy Weidner. I'm the attorney for the Defendants in the action filed in Cumberland County; 01-5260; Civil Term; Rose Mary Koch, K-O-C-H, and Alan T., her husband; versus Gerald Henderson and Russel M. Bible. We are here today to take your deposition because of an issue of service of process in this case, and because you responded to a letter that I wrote to the sheriff. If I ask you a question and you don't understand, tell me that. And I'll try to rephrase it. Okay? 4 I 1 2 3 4 s 6 7 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Okay. Q I have some papers here that are copies. I'll use those as exhibits. I may need to either retrieve documents that I don't have if you have them in your file. Have you brought the sheriff's department file and service of process for this case with you? A Yes. Q And tell me your full name to start off with. A Doris Goodhart. Q And you're what in the sheriff's department? A Staff assistant. I think that's the correct term. Q Okay. What do you as staff assistant to the sheriff's department? A I normally process the civil papers that come through. I also do the deputizing of other counties for service, which would pertain to this case. Q Okay. As I said, we're here about a case docketed to 5260 that's an 'O1 in year. And that's Koch versus Henderson and Bible. A Um-hum. Q There was a writ of summons that issued from the Prothonotary's office on September 6, 2001. Was that sent to the sheriff's department of Cumberland County for service? _~ 5 1 L 3 4 6 7 s 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. We received it September 7th. Q And what transpired of your receipt of that summons? A We deputized Lebanon County for service of Gerald Henderson and Russell Bible at 32 Dairy Lane, Palmyra. Q And why was that address used, the Palmyra address? Was that the one given to your department? A Yes. Q Now, I realize some judge is going to read this so -- but briefly, you deputized the sheriff of Lebanon County. Is that correct? A Yes. Q And that's because it was an out-of-the-county service? A Correct. Q And that's because the Rules of Civil Procedure require it be served out of county in that manner. Is that correct? A Yes. MR. WEIDNER: I'll show you what I've marked as Goodhart 1 and pass a copy to counsel. (Document marked Goodhart Exhibit No. 1.) BY MR. WEIDNER: Q Can you identify Goodhart 1, which is Goodhart 6 D C I~ 1 2 3 4 5 6 7 a 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit 1? A Can I identify it? Q Yeah. Can you tell us what it is? A Okay. That's a return that I generated from our office stipulating that we deputized the sheriff of Lebanon County for service. Q Okay. And that was to serve? A Gerald Henderson. MR. WEIDNER: Okay. I'll show you Exhibit 2 and pass a copy to counsel. (Document marked Goodhart Exhibit No. 2.) BY MR. WEIDNER: Q And can you identify Exhibit 2? A Okay. Again, we deputized Lebanon County for service. This time it was on Russell Bible. Q Okay. Did you receive back any information concerning what Lebanon County did with regard to service? A Yes. Q And what did they report? A Not found. It said according to Deputy Guliani, the defendants reside outside of this bailiwick, most likely living in Dauphin County, PA. (Document marked Goodhart Exhibit No. 3.) BY MR. WEIDNER: Q I'm going to show you what's been marked .u i 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 Goodhart Exhibit 3 and ask if you can identify that. A That is a copy of the return from Lebanon County on both Gerald Henderson and Russell Bible. Q And that was received by your sheriff's department from the Lebanon County sheriff. Is that correct? A Yes. Q Now, referring to Exhibits 1 and 2, do you know what was done with those returns of service after you prepared them? MR. DOUGHERTY: First, I want to place an objection. I don't think she ever testified that she prepared them. BY MR. WEIDNER: Q Okay. Did you prepare the returns of service for Cumberland County Sheriff's Department? A These two, yes, sir. Q That would be Exhibits 1 and 2, correct? A Um-hum. Q What was done after you prepared those returns? A What I do is get the sheriff's signature on those, then they go for any type of refund check that's due back to the Plaintiff's attorney. And after signatures and everything is ready to go, the original goes -- the original return goes to the Prothonotary's i r,r:x 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 zo 21 22 23 24 25 office, photocopies go in our file jacket, and then the other one would go back to the attorney. Q Now, in the case of the attempt to serve Henderson and Bible, were there refunds due to the Plaintiff's attorney in each of those? A Yes. I don't -- Q You can refer to the exhibits if you need to refresh your recollection. A It's easier here. On September 25th, 2001, there was a refund check issued for $44.32. Q And who was that issued to? A Ira Weinstock. Q Was that check ultimately sent to Mr. Weinstock? A Yes. That would have been -- the check and the returns go together in the same envelope. Q Okay. So the check sent to Mr. Weinstock would have gone to the returns marked Exhibits 1 and 2 here today? A There should have also been a copy of 3 as well. Q Okay. Then he would have gotten his check, Exhibits 1, 2 and 3; being the Cumberland County returns for Bible and Henderson and the single Lebanon County sheriff's return for both Bible and. Henderson. Is that 9 C' C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A Yes. Q You have in your hand what appears to be a canceled check. Is that true? A Well, it's a photocopy of our canceled check, yes. Q And who is it issued to? A Ira Weinstock. Q And what's the date on it? A The date of the check? Q Correct. A September 25th. Q Do you know whether that check was negotiated? A Yes, it was. Q And when was it negotiated? A Processed October 1st, 2001. Q And by process, what do you mean? A That's when it cleared the bank. Q Is there any endorsement on the check? A Pay to the order of Dauphin Deposit Bank and Trust Company, Ira H. Weinstock, P.C., I guess that is. Q And that's on the back of the check. Is that correct? A Yes. Q And that is check number what? 10 e I 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A 34107. Q Do you have any extra copies of that check with you? A I was told not to give you guys this check. I don't know. I'm not sure what we need from you to give you this. But that's what I was told, not to give it to you. MR. WEIDNER: All right. Are you satisfied that the check is authentic, even if she doesn't put it into the record? THE WITNESS: That's the copy of the front and that's the copy of the back. MR. DOUGHERTY: Well, I can't stipulate to the authenticity of this check. But based on my answer, I don't think there's a dispute that we received a check. MR. WEIDNER: Okay. BY MR. WEIDNER: Q After that check was issued back to Mr. Weinstock, to your knowledge, what else was done to serve process in this case? A Okay. On April the 30th, we received a reinstated complaint to be served on Gerald Henderson and Russell Bible at 392 Derry Lane, Palmyra, Lebanon County. The attorney also enclosed papers from the post office indicating that both defendants do get mail at that 11 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 address. Q Were they ultimately served there? A No. We received a second return from Lebanon County indicating that 392 Derry Lane, Palmyra is actually located in Dauphin County and not in Lebanon County. I spoke with the attorney's secretary and informed her of the same. She's going to have the complaint reinstated, and then we are to deputize Dauphin County for service. Q Okay. Going back to the check that you're not allowed to give me, I just want to make sure that's drawn on the Cumberland County Sheriff's Department account. Is that correct? A Yes. Q And that, again, what was the number and date of issue? A September 25th, 2001, check No. 34107. Q And what bank is it drawn on? A M&T. Q And, again, would you read the endorsement stamp on the back? A Pay to the order of Dauphin Deposit Bank and Trust Company, Ira H. Weinstock, P.C. Q Now, the check was dated September 25th, 2001. Is that correct? 12 D IC 1 2 3 4 5 6 7 s 9 l0 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 A Yes. Q And that's the date that the sheriff's returns of service were issued by Cumberland County. Is that correct? A Well, it should be the same. Sometimes there's one day difference. No, it is the same. Q Okay. And they accompanied the check when it was mailed? A Yes. MR. WEIDNER: No further questions. EXAMINATION BY MR. DOUGHERTY: Q Mrs. Goodhart, you indicated that you are a staff assistant with the Cumberland County Sheriff's Office. Is that correct? A Yes. Q Are there any other staff assistants that work in the office? A Yes. Q How many others? A One. Q And what's that person's name? A Claudia Brubaker. Q Is Ms. Brubaker also responsible for handling out-of-county services? 13 C 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 is 19 ZO 21 22 23 24 zs A No. Well, that's okay. If you don't need any details. Q What are her responsibilities? A She deals with writs of execution and papers that originate outside of Cumberland County. Q Now, are there any other employees in the sheriff's office that deal with out-of-county service? A Well, as far as processing the paper, no. The receptionist is the one who actually makes the photocopies and physically puts the papers in the mail. Q Okay. So after you are -- after you prepare the sheriff's return of service and have it signed by the sheriff, you hand it over to the secretary? A Well, after the guys put their signatures on, it goes in a basket. And she's actually the one that makes the photocopies for the jacket and for the envelope and makes sure everything gets where it needs to go. Q Is she also responsible for seeing that the original is filed with the Prothonotary? A Um-hum. Q Now, I noticed during the course of your direct testimony, you were referring to what appeared to be a computer printout? A Yes. That's our docket. Q The docket of the activity that went on with 14 I 1 2 3 4 s 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2s regard to this docket number? A Um-hum. Q Through your office. Is that correct? A Yes. Q Would it be fair to say that you don't have any personal knowledge or recollection as to what went on with this, that you don't remember specifically dealing with all of this, that you're simply relying on the docket entries that are included in there? A I -- my personal feeling was that most of this problem lies with the Lebanon County return, because the first return, in my opinion, doesn't stipulate that that address is not in Lebanon County. It just says they're not in Lebanon County but.... Q Okay. Well, let me ask you my question again. As you're testifying today, if you didn't have this docket entry in front of you, would you be able to tell us everything that you told us today? A Oh mercy, no. Q Okay. You do probably dozens of these a week, probably. Is that fair to say? A Yes. Q So you're relying basically on the docket entries that are included in front of you today? A Yes. 15 D 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, you brought up, I believe, it's Goodhart Exhibit 3, which is the return from Lebanon County. Is that correct? A Um-hum. Q Now, when you received the precipe for writ of summons that was originally filed on September 7, 2001, did it have the addresses for the Defendants. Is that correct? A Yes. Q Is it typically your responsibility to see where that address is located as far as what county that address is in? A Actually, I think that was on the instruction letter. But normally we verify it. We have a book, which I didn't bring along up, that we look up the town name and it tells us what county that particular town is located in. And Palmyra is listed as being in Lebanon County. Q Okay. From what I understand, where the problem came up is part of Palmyra is in Lebanon County and part is in Dauphin County. A Correct. Q Is that correct? A Yes. Q So there's no dispute that this was sent to Lebanon County with the address of -- what is it -- 329 16 IC 1 L 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Derry Street? A 392. Q 392 Derry Street? A I think that's right. Yeah, 392 Derry Lane. Q Okay. Derry Lane. And that's ultimately where the Defendants were served. Is that correct? A Yes. Well, no, they were actually served in the Dauphin County Sheriff's office. Q Okay. A But they do reside there. Q They do reside at 392 Derry Lane which is in Dauphin County? A Correct. Q And when you received this summons back, you said the confusion was it never indicated that the individuals or the address that was listed was in Dauphin County? A Right. Q Is that fair to say? Now, you indicated that the typical procedure is once you receive the summons back, you prepare the sheriff's return of service and that was Goodhart Exhibits 1 and 2? A Yes. Q Would it be fair to say you don't have any specific recollection of preparing these specific ~.w.. 17 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 exhibits? A No. Q Okay. And likewise, would it be fair to say that you don't have any specific recollection of preparing -- or preparing -- preparing an envelope or any type of cover letter to the office of Ira Weinstock with the return of service? A Correct. Q Do you typically prepare any type of cover letter indicating here are the returns of service as well as your check? A No. Q So your understanding under the Rules of Civil Procedure is that you're required to send a return of service or return of no service to the Plaintiff's attorney. Is that correct? A To be truthful, I've never had any type of class on civil processes. That's how I've been trained in the office. Q It's you just doing what you're told? A Exactly. Q Okay. Have you ever received any questions from any other attorneys regarding the failure to send a return of service? A No. 18 i 1 2 3 4 s 6 7 a 9 10 11 12 13 14 15 16 17 18 19 zo 21 22 23 24 25 Q Or return of no service? A Oh, occasionally we'll get calls from secretaries saying that they never received one, or it's been misplaced and we fax them a photocopy. Q And you're referring to exhibits -- Goodhart Exhibits 1 and 2? A Um-hum. Q Not this specific document but -- A That type. Q The general return of service? A Yes. Q And other than the procedure that you outlined, you have no specific information to confirm that these returns of service were sent to Ira Weinstock, P.C.? MR. WEIDNER: Objection. She testified to a check that he negotiated. BY MR. DOUGHERTY: Q Well, I'm talking about Exhibits 1 and 2. A They should have been in the envelope with the check. Q Based on the procedure that you typically use? A Correct. Q Do you know when the returns were filed with the Prothonotary? A These original ones? 19 i 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Yes, Exhibits 1 and 2. A Okay. We did them September 25th. So they would have probably gone down to the Prothonotary's office that following day. Q Do you have anything indicated in the docket as to the exact date that it was filed with the Prothonotary? A No. Q Can you tell for sure from the docket that it was filed with the Prothonotary? A No. but it wouldn't be hard to check with the Prothonotary's office. Q You're just assuming that since the typical procedure is that they file the original, that it was filed? A Right. But I can be positive that it was, because if it wasn't, Joyce would have called and yelled at us. Q From the Prothonotary's office? A Yes. MR. DOUGHERTY: I have no further questions. EXAMINATION BY MR. WEIDNER: Q Mrs. Goodhart, did you write a letter to me dated May 2, 2002, in response to an inquiry I made about service on this? zo D G I 1 2 3 5 6 .~ S 9 10 11 12 13 14 15 16 17 1S 19 20 21 22 23 24 25 A Yes. Q And that is, in fact, your letter? A Yes. Q And that's after you researched the sheriff's file? A Yes. Q Is that correct? A Yes. MR. WEIDNER: I will mark that as Exhibit 4. (Letter marked Goodhart Exhibit No. 4.) MR. WEIDNER: That's all the further questions I have. MR. DOUGHERTY: I have nothing else. (The deposition concluded at 9:16 a.m,) _i z1 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY OF CUMBERLAND , SS COMMONWEALTH OF PENNSYLVANIA , I, Tammy L. Bock, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of Doris Goodhart. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify said deposition constitutes a true record of the testimony given by said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of October, 2002. Tammy L. 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Service[zs) 3:20 stipulated[t) 3:2 14:3 14:5 14:20 14:23 14:15 15:1 respective [t) 3:3 4:5 4:17 5:4 5:15 4:25 6:6 stipulating [t) 6:5 15:5 15:10 15:18 responded [t) 3:21 6:15 6:17 7:9 STIPULATION p)3:1 15:22 15:24 16:3 response [~) 19:24 7:15 11:9 12:3 $trcet [z) 16:1 16:3 16:5 16:9 16:11 13:7 13:12 16:21 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Index Page 5 such - We Multi-Page"" 1)nRiS (`,OODHART such[Il 21:17 21:7 21:8 zlaz Then [I] a:zz told [al lo:a 10:6 summons [sl 4:22 21:15 then [sl 722 8:1 14:18 17:20 5:3 15:6 16:14 That's [el 6:4 9:18 11:8 town [zl 15:15 15:16 16:20 10:11 13:24 17:18 There [zl 4:22 8:20 trained [ll 17:18 sure [al 10:5 11:11 20:11 there [81 8:4 8:10 transpired [Il 5:2 13:17 19:8 that's [ISl 4:11 4:19 9:19 11:2 12:17 TRIAL [I] 1:9 sworn [zl 3:9 21:8 4:19 5:14 5:17 13:6 14:9 16:10 trial [I] 3:6 7:22 9:22 10:6 there's [3l 10:15 12:5 9:4 true z 21:21 10:12 11:11 12:2 [ l -T- 13:1 16:4 16:5 15:2a Trust [zl 9:21 11:23 T [zl 1:1 3:17 20:4 These [zl 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15:11 12:13 13: ] 13:11 ]5:18 16:5 13:11 ]3:13 13:22 WHEREOF [1] 21:22 14:5 14:7 14:15 whether [17 9:13 14:16 14:17 14:17 which [s] 4:17 5:25 14:18 14:24 15:1 15:5 16:14 16:14 15:2 15:14 16:11 16:19 16:20 16:21 who [3] 8:11 9:7 16:24 17:4 17:9 13:9 17:20 17:22 18:12 why [1] 5:7 18:13 18:21 18:23 will [i] 20:9 19:5 19:8 19:23 wlth[zl] 4:6 4:8 20:4 ' 6:17 7:9 10:2 re [1] 'you 19:12 11:6 12:14 13:4 you're [s] 4:10 11:10 - 13:7 13:19 13:25 14:8 14:16 14:23 14:6 14:7 14:11 17:14 17:20 18:5 15:25 17:6 18:19 yOllr [ls] 3:19 4:4 18:23 19:6 19:9 4;g 5:2 5:8 19:10 7:4 8:8 9:3 within [1] 21:4 10:19 13:21 14:3 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Index Page 7 >, r~ i"= _ c: -_: V {-~; __ =~ - _,._ r - t == 4.; ~~~ ~~t~ at QCunr~iert~ R. THOMAS KLlNE Sheriff EDWARD L. 6CHORPP Solicitor May 2, 2002 o ~ uS ~d~. d ~'~~~VE® y r~ ry OFFICE OF THE SHERI~F.' 'h?Ytrkst~ QUFFfE f'atr„`llI ~t~`~ lN~)pNER One Courthouse Square Carlisle, Pennsylvania 77073 RONNY R. ANDERSON Chief Deputy JODY S. SMITH Real Estata Deputy Dear Mr. Weidner: In response to your letter dated Apri130, 2002, you will find copies of both the Lebanon and Cumberland County Sheriff's returns. Those returns were mailed to Ira Weinstock along with a check dated 9/25/01 in the amount of $44.32. This check was processed on October I, 2001. If you have any further questions, feel free to call (71'n 240-6398. Sincerely, Doris Good'nart -~- _ Administrative Assistant EXHIBIT ~~dlt~~ 1 t. sut~m~toNs No. 01-5260 CIVIL ROSE MARY KOCH, ET AL vs. ltebanon, PA, September 24, 2001 (RETURN TO CUMBERLAND CO. SHERIFF) DOCKET PAGE 16892 GERALD HENDERSON & RUSSELL M. BIBLE STATE OF PENNSYLVANIA } COUNTY OF LEBANON } SS: Kirk Juliani, Deputy Sheriff, being duly sworn according to law, deposes and says that after due and diligent search by him having been made in this bailiwick, and after having exhausted all known facets to locate defendant, as stipulated under Rule of Civil Procedure, Rule _ 430, "good faith effort," he was unable to find GERALD HENDERSON & RUSSELL M. BIBLE, the within named DEFENDANTS, and he therefore returns "NOT FOUND" as to the said GERALD HENDERSON & RUSSELL M. BIBLE, the within named Defendants. *NOTE: According to Deputy Juliani, the Defendants reside outside of this bailiwick, most likely living in Dauphin County, PA. Sworn to and subscribed before me SO ~-'v{/ S, this 24th day of September, A.D., 2001 , F Notary Public , SH F NO RIAL SEAL ANCY L. SiARNER, Ncta,y Public Lebanen. Lebanon County. Pa. My Commissun Ezpires Autust 8. 2002 SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced costs paid on 9/12/01 Check No. 33898 Amount 100.00 Costs incurred: Amount 52.68 Refund: Check No. 10546 Amount 47.32 All Sheriff's Coats shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costa thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. , Sec. 2, Act of `June 20,-1911; P.L. 1072 SHERIFF'S RETURN - OUT OF COUNTY .'^` CASE DTO: 2001-05260 P - COMMONWEALTH OF PENNSYLVANIA: __- COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS ,: ~_ _ _ HE~7DERSON GERALD ET AL R_ Thomas Kline Sheriff or Deputy Sheriff. who being duly sworn according to law, say s, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: HENDERSON GERALD - - _ _ __ _ ,_-. - ~ z- but was unable to locate Him in hie bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania,. to serve the within WRIT OF SUMMONS On September 25th 2001 this office was n receipt of the. attached return from LEBANON T Sheriff's Costs: So ans rs: Docketing 18.00 y Out of .County 9.00 _ ~%'~ Surcharge 10.00 Thomas Kline _ Dep Lebanon Co 52.68- Sheriff of Cumberland County .00 89.58 _ 09/25/2001- IRA WEINSTOCK Sworn and subscribed~to before me this aS"= day of ~~.~...~ ~ AnD: ~ r ~ 2c. ~ ~2t<t,~ aQi~ - Prothonota --` - SHERIFF'S HE'1'uHN - uu~r ur cwrvrx ' CASE NO: 2001-05260 P _ _ COMMONFIEALTH OF PENNSYLVANIA: ~•- COUNTY OF CUMBERLAND __ KOCH ROSE MARY ET AL .. :- _'_ VS HENDERSON GERALD ET AL __ R. Thomas Kline - _ ; duly sworn according to law, say, and inquiry for the within named BIBLE RUSSELL M but was unable to locate Him deputized the sheriff of LEBANON serve the within WRIT OF SUMMONS Sheriff o_r Deputy Sheriff who being a, that he made a diligent search and DEFENDANT to wit: in his bailiwick. He therefore County, Pennsylvania, to On September 25th 2001 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing _ - - 6.00 Out of County .00 Surcharge _10.00 .00 .00 16.00 09j25/2001 IRA WEINSTOCK So answe s: - ~. R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~F ~ day of ~/ A.D, Prothonotary E,~1B{'1' Johnson, Duffie, Stewart & 6Veidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICEAND ACKNOWLEDGMENT OF RECE/PT OFSUBPOENA BYMA/L TO: Doris Goodhart c/o Cumberland County Sheriffs Office The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure 234.2(b)(3). Complete the acknowledgment part of this form and return the copy of the completed form to the sender in the enclosed self-addressed stamped envelope. Sign and date the acknowledgment. If you are served on behalf of a partnership, unincorporated association, corporation or similar entity, indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive the subpoena, indicate under your signature your authority. bate Notice Mailed: September 3. 2002 JOH N, l FIE, STEWART & WEIDNER By: C. Ro ner, Jr. ACKNOWLEDGMENT OF RECEIPT OF SUBPOENA I acknowledge receipt of a copy of the subpoena in the a~aptioned matter. Date: ~ep~emt2er ~ G1ooa- , (Signature) Self' Relationship to entity or authority to receive the :162345 subpoena Ca iv '--~(j y ~ ~ "GL= `~ _ ±,._ ~ ~ <i r7i i '- -{ .f, tr ~~5~ ~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: ^ Pre-Trial Argument Court ~ Argument Court CAPTION OF CASE (entire caption must be stated in full) ROSE MARY KOCH and T. ALLEN KOCH, Her Husband, (Plaintiffs) vs. GERALD HENDERSON and RUSSELL M. BIBLE, (Defendants) No. 01-5260 Civil 1. State matter to be argued (i.e., Plaintiffs motion for new trial, Defendant's demurrer to complaint, etc.): Defendants' preliminary objections to Plaintiffs' complaint. 2. Identify counsel who will argue case: a) For Plaintiff: John B. Dougherty, Esquire Address: Ira H. Weinstock, P.C., 800 North Second Street, Harrisburg, PA 17102 b) For Defendant: Michael J. Cassidy, Esquire Address: Johnson, Duffle, Stewart & Weidner, 301 Market Street, Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 8, 2003 Dated: :165641 -- Attorneyfo efendants :~ohnsdn, Duffle, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 Attorneys for Defendants R05E MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. CIVIL ACTION -LAW GERALD HENDERSON and JURY TRIAL DEMANDED RUSSELL M. BIBLE, Defendants PRAEC/PE TO /SSUE RULE TO F/LE COMPLA/NT TO THE PROTHONOTARY: AND NOW, this f S~~day of March, 2002, please issue a rule to Plaintiffs to file their complaint within twenty (20) days of the date of service thereof, or suffer judgment of non pros. JOHNS P , UFF , STEWART & WEIDNER By: C. Roy eidner, Jr. RULE TO F/LE COMPLA/NT TO THE PLAINTIFFS: AND NOW, this ~d ~ ~ day of March, 2002, a Rule is hereby issued to you to file your complaint in the above-captioned action within twenty (20) days of the date of service hereof, or suffer judgment of non pros. CURTIS R. LONG, PROTHONOTARY Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM :155778 5774-389 y rte'. CERT/F/GATE OF SERV/CE AND NOW, this 15"' day of March, 2002, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Ira H. Weinstock, Esquire Ira H. Weinstock, P.C. 800 North Second Street Harrisburg, PA 17102 JOHNSON, DUFFIE, STEWART & WEIDNER Michelle` Hagy ,." t ' _ --~. ~-, r J U1 ~ , -` i ~; _ _. ~ 1 ~' C:' - !'": C i i"y J' C ~ 'O ~'Ct -f '° ~7 6fl -C r ROSE MARY KOCH and T. ALLEN KOCH, her husband ,' ,^t IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiffs, vs. No. 01-5260 CIVIL TERM GERALD HENDERSON and RUSSELL BIBLE, Defendants. CIVIL ACTION -LAW NRY TRIAL DEMANDED PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the complaint in the above-captioned matter. Respectfully Submitted, IRA H. WEINS'I`OCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 By: ~ . /.~ OHN B. DOUGHER Attorney I.D. No. 70680 • •:.4 ' '~bktlY `~' ~l~'IlASMbilbAAfY'Tm. a59iaFw~Yo-A>s_m:.t, r..' n. »/: ye.a9n<"iFt4t51hi -uHb.NS-laYffiYYJtlY$9`6. ti/ m4C:t' ~. ^'e ~_ ~ ~ "3a _{ C{~ ~ '~ .~.~T i is ~ ?v ~~'< ~ '=G ? i ~ ~ C-5 =, -C, ~ - n '7= S ~_' ,. _~ =~ ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs, v. GERALD HENDERSON,and RUSSELL M: BIBLE, Defendants. NOTiCF. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.Ol-5260 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice aze served, by entering a written appearance personally or by defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may loose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (717)249-3166 ROSEMARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs, v. GERALD HENDERSON, and RUSSELL M. BIBLE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM CNIL ACTION -LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, the Plaintiffs, Rose Mary Koch and T. Allen Koch, by and through their attorney's, Ira H. Weinstock, P.C., respectfully submit this Complaint demanding judgment against the Defendants, Gerald Henderson and Russell M. Bible, and in support thereof aver the following: 1. Plaintiff, Rose Mary Koch, is an adult individual and citizen of the Commonwealth of Pennsylvania, presently residing at 816 Center Street, Enola, Cumberland County, Pennsylvania 17025. 2. Plaintiff, T. Allen Koch, is an adult individual and citizen of the Commonwealth of Pennsylvania, presently residing at 816 Center Street, Enola, Cumberland County, Pennsylvania 17025. 3. At all times relevant hereto, Plaintiff, T. Allen Koch, was the lawfully wedded husband of Plaintiff, Rose Mary Koch. 4. Defendant, Gerald Henderson, is an adult individual and resident of the Commonwealth of Pennsylvania with a last known address of 4182 Antelope Court, Apt. 118, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. Defendant, Russell M. Bible, is an adult individual and citizen of the Commonwealth of Pennsylvania with the last known address of 4182 Antelope Court, Apt. 118, Mechanicsburg, Cumberland County, Pennsylvania 17055. 6. On or about September 10, 1999 at approximately 11:55 a.m., Plaintiff, Rose Mary Koch, was driving a 1993 Dodge Dakota bearing Pennsylvania registration number YC- 45340 in an easterly direction of Route 944 (Wertzville Road), at or near the intersection of Valley Road in Hampden Township, Cumberland County, Pennsylvania. 7. At the aforesaid date and the aforesaid time and place, Defendant, Russell M. Bible was operating a 1985 Chevrolet Monte Carlo bearing registration number BJA-7024 in a northerly direction on Valley Road at the intersection of Valley Road and Wertzville Road. 8. At or about the time described herein, and at a point where Wertzville Road and Valley Road intersect, the vehicle operated by Rose Mary Koch, was driving, with the right of way through the intersection of Wertzville Road and Valley Road. 9. At the aforesaid time, date and place, Defendant Russell M. Bible, was traveling in the northbound direction of Valley Road and suddenly, without any wanting, drove through a stop sign and negligently, carelessly and recklessly collided with the vehicle operated by Plaintiff, Rose Mary Koch, with great force and violence thereby causing the serious injuries set forth more fully herein. 10. At all times relevant hereto, Defendant, Gerald Henderson, was the legal owner of the vehicle being operated by Russell M. Bible which collided with the vehicle being operated by Rose Mary Koch and which caused the damages which are set forth at length herein. 2 11. At all times described herein, Defendants, Gerald Henderson and Russell M. Bible, owed Plaintiff, Rose Mary Koch, a duty to operate or cause the motor vehicle to be operated with due care and in conformity with the applicable statutes and common law of Pennsylvania. 12. As a direct result of the recklessness, carelessness and negligence of the Defendants, the Plaintiff suffered severe, painful, disabling and personal injuries as follows: (a) Cervical Strain/Sprain; (b) Lumbrosacral Sprain; and (c) Bilateral Knee Sprain. 13. As a further result of the recklessness, carelessness and negligence of the Defendants, Plaintiff, Rose Mary Koch, was rendered sick, sore and disabled and Plaintiff suffered severe physical and mental anguish and a loss of her well being and enjoyment of life. 14. As a result of the negligence of the Defendants, Plaintiff, Rose Mary Koch, has sustained serious permanent injury for the treatment of which she has incurred lost wages, medical bills and expenses. 15. As a result of the negligence of the Defendants, Plaintiff, Rose Mary Koch, has suffered an interruption of her daily habits and pursuits to her great and permanent detriment and loss. 16. All of the losses, damages, and injuries sustained by the Plaintiff, Rose Mary Koch, resulted from the acts or omissions of the Defendants and were in no manner whatsoever due to any act or omission on the part of the Plaintiff. 3 17. At all times material hereto, Plaintiff, Rose Mary Koch, acted with due care and was not negligent. COUNTI-NEGLIGENCE ROSE MARY KOCH v. RUSSELL M. BIBLE 18. The Plaintiff incorporates by reference the allegations contained in paragraphs 1- 17 inclusive as though the same were set forth at length herein. 19. At all times described herein, Defendant Russell M. Bible, owed the Plaintiff, Rose Mary Koch, the duty to operate or cause the motor vehicle to be operated with due care and in conformity with the applicable statutes and common laws of the Commonwealth of Pennsylvania. 20. At all times described herein, the Defendant, Russell M. Bible, owed a duty to the Plaintiff, Rose Mary Koch, not to operate the vehicle in such a manner as to injure the Plaintiff. 21. The Defendant, Russell M. Bible's, reckless and/or careless and/or negligent conduct directly and proximately caused the Plaintiff, Rose Mary Koch, to sustain all of her resulting losses, injuries and damages. 22. The accident was directly and proximately caused by the negligence and carelessness of the Defendant, Russell M. Bible, in one or more of the following ways: (a) Operating said motor vehicle in a careless, reckless and negligent manner; (b) Operating said vehicle in violation of Section 3323(b) of the Pennsylvania Motor Vehicle Code; (c) Operating said motor vehicle with no warning of approach; (d) Not having the motor vehicle under the proper control so as to stop said vehicle within the assured clear distance ahead (75 Pa. C.S. § 3361); 4 (e) Operating said motor vehicle without due regard for the rights, safety, and position of the Plaintiff; (f) Failing to have said motor vehicle under the proper control as to prevent his vehicle from striking Plaintiffls motor vehicle; (g) Failure to keep a proper lookout; (h) Failing to use due care under the circumstances; (i) Failing to yield the right of way to Plaintiffls vehicle; (j) Failing to take evasive action in order to avoid impacting with Plaintiffls vehicle; (k) Failing to apply his brakes in sufficient time to avoid striking Plaintiffs car; (1) Operating said motor vehicle in disregard of the rules of the road, and the laws of the Commonwealth of Pennsylvania, including but not limited to motor vehicle code, 75 Pa. C.S. § 3323(b). 23. As a result of the negligence of the Defendant, Russell M. Bible, Plaintiff, Rose Mary Koch. has been rendered sick, sore and disabled and has suffered severe physical pain and mental anguish and has suffered a loss of her well being, loss of income, and enjoyment of life. 24. Plaintiff, Rose Mary Koch, believes and, therefore, avers that her injuries are of a continuing and permanent nature and that she may, therefore, continue to suffer in the future, thereby requiring additional medical care and treatment and experience continuing disability, physical pain, mental anguish and loss of her well being and enjoyment of life from time to time in the futurs. 25. All of the losses, damages and injuries sustained by the Plaintiff, Rose Mary Koch, resulted from the acts or omissions of Defendant, Russell M. Bible, and were in no manner whatsoever due to any act or omission on the part of Plaintiff. 5 26. At all times material hereto, Plaintiff, Rose Mary Koch, acted with due care and was not negligent in any manner. WHEREFORE, Plaintiff, Rose Mary Koch, demands judgment against the Defendant, Russell M. Bible, individually or jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration under the rules of Cumberland County together with delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, attorneys fees, lawful interest, punitive damages, costs and any other relief the Court deems just and appropriate. COUNT II -NEGLIGENCE PER SAY ROSE MARY KOCA v. RUSSELL M. BIBLE 27. The Plaintiff incorporates by reference the allegations contained in paragraphs 1- 26 inclusive as though the same were set forth at length herein. 28. All of the resulting losses, injuries and damages sustained by Plaintiff, Rose Mary Koch, directly and proximately resulted from the violation of the Pennsylvania Motor Vehicle Code by Defendant, Russell M. Bible, by failing to obey stop signs and yield signs in violation of 75 Pa. C.S.A. § 3323(b). 29. As a result of Defendant, Russell M. Bible's violations of the Pennsylvania Motor Vehicle Code at the time of the accident, Defendant, Russell M. Bible, pleaded guilty to failing to obey stop signs and yield signs in violation of Section 3323(b) of the Pennsylvania Motor Vehicle Code. 30. Plaintiff, Rose Mary Koch, is within the class of persons to be protected by the provision of Motor Vehicle Statute, 75 Pa. C.S.A. § 3323(b). 6 31. As a direct and proximate result of the violation of motor vehicle statute, 75 Pa. C.S.A. § 3323(b) by the Defendant, Russell M. Bible, the Plaintiff, Rose Mary Koch, has been obliged to spend various sums of money'to receive and undergo medical care and attention for her injuries. 32. As a direct and proximate result of the violation of motor vehicle statute, 75 Pa. C.S.A. § 3323(b) by the Defendant, Russell M. Bible, Plaintiff, Rose Mary Koch has been rendered sick, sore and disabled and has suffered lost wages, severe physical pain and mental anguish and has suffered a loss of her well being and enjoyment of life. 33. Defendant, Russell M. Bible, is liable to the Plaintiff, Rose Mary Koch, for all injuries and damages as a result of his violation of the motor vehicle code. 34. The injuries sustained by the Plaintiff, Rose Mary Koch, are the type the Motor Vehicle Statute 75 Pa. C.S.A. § 3323(b) was designed to prevent. WHEREFORE, Plaintiff, Rose Mary Koch, demands judgment against the Defendant, Russell M. Bible, individually or jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration under the rules of Cumberland County together with delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, attorneys fees, lawful interest, punitive damages, costs and any other relief the Court deems just and appropriate. COUNT III ROSE MARY KOCH v. GERALD HENDERSON 35. The Plaintiff incorporates by reference the allegations contained in paragraphs 1- 34 inclusive as though the same were set forth at length herein. 7 36. Defendant, Gerald Henderson, acted recklessly, wantonly and/or negligently by entrusting his vehicle to Defendant, Russell M. Bible, when Defendant, Gerald Henderson, knew or should have known that Defendant, Russell M. Bible, would drive the vehicle in violation of the Pennsylvania Motor Vehicle Code. 37. As a direct and proximate result of the reckless, wanton and/or negligent conduct of the Defendant, Gerald Henderson, Plaintiff, Rose Mary Koch, has been rendered sick, sore and disabled and has suffered lost wages, severe physical pain and mental anguish and has suffered a loss of her well being and enjoyment of life. 38. All of the'. losses, damages and injuries sustained by Plaintiff, Rose Mary Koch, resulted from the acts or omissions of the Defendant, Gerald Henderson, and were in no manner whatsoever due to any act or omission on the part of said Plaintiff. 39. At all times material hereto, Plaintiff, Rose Mary Koch, acted with due care and was not negligent in any manner. WHEREFORE, Plaintiff, Rose Mary Koch, demands judgment against the Defendant, Gerald Henderson, individually or jointly and severally, in an amount in excess of the jurisdictional amount requiring azbitration under the rules of Cumberland County together with delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, attorneys fees, lawful interest, punitive damages, costs and any other relief the Court deems just and appropriate. COUNT IV -LOSS OF CONSORTIUM T. ALLEN KOCH v. RUSSELL M. BIBLE AND 40. The Plaintiff incorporates by reference the allegations contained in paragraphs 1- 39 inclusive as though the same were set forth at length herein. 8 41. At all times material hereto, Plaintiff, T. Allen Koch, was the lawfully wedded husband of Rose Mary Koch. 42. As a result of the aforementioned injuries sustained by his wife, Plaintiff, T. Allen Koch, has been and may in the future be deprived of the care, companionship, consortium and society of his wife all of which will be to his great detriment and claim is made therefore. WHEREFORE, Plaintiff, T. Allen Koch, demands judgment against the Defendant, Gerald Henderson and Russell M. Bible, individually or jointly and severally, in an amount in excess of the jurisdictional amount requiring arbitration under the rules of Cumberland County together with delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, attorneys fees, lawful interest, punitive damages, costs and any other relief the Court deems just and appropriate. Respectfully Submitted, IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: (717) 238-1657 By: . ~-~- /~~ IRA. H. WEINSTOCK By: OHN B. DOUG RTS 9 COMMONWEALTH OF PENNSYLVANIA ) ss. COUNTY OF CUMBERLAND ) I verify that the statements made in the attached COMPLAINT are true and correct. I understand that false statements herein are made subject to the penalties set forth in 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. DATED: 0~"02$- O~ ~.f4~/~V ~?C~/LLj~ /'Ci~Z:I/ ~ ROSE MARY KOCH DATED:~,ZS"~O L ~ /~~ T. ALLEN KOCH CERTIFICATE OF SERVICE AND NOW, thiso?6~ day of March, 2002, I, John B. Dougherty, Esquire, attorney for Plaintiff, hereby certify that I served the within COMPLAINT this day by depositing the same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: C. Roy Weidner, Jr., Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 BY: HN B. DOUG RT IN THE COURT OF CONWION PLEAS CUMBERLAND= COUNTY, PENNSYLVANIA ~~ Civil Action ( ) Law ( ) Equity Rose Mary Koch and T. Allen Koch, her husband ,~ 816 Center Street Enola, PA 17025 Plaintiff(s) 8 Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Defendant(s) 8 Address(es) Please issue writ of summons in the above-captioned ar_tion. 2 4lrit of Summons shall be issued and forlaarded to ( )Attorney (x)Sheriff Ira H. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 Names/Adcres~/ Telephon No. of Attorney Signature of .4ttornzy Supreme Court ID No. 01602 Dat=: 9/4/01 WRIT OF SUMMONS TO THE ABOVE PiAMED DEFEPJDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED P! A I NT I FF(S ) HAS!HAVE ''OMP•iEPlCED ,4N ACTION AGAINST YOU. ,.,. Prothonotary /7~ Date: ~ ~ ~ by llOm ^~ A/J~St Depu ( ) '',iie~k here ii reverse is i.--.sued r~r ~:lditi~nal infor^ation . Gerald Henderson . 392 Dairy Lane versus Palmyra, PA 17078 and . Russell NI. Bible . 392 Dairy Lane Palmyra, PA 17078 ~~ d ' - ~~ ~ -~~,, ICJ . ~i~+ f~ ~ t.P{ .J ~~ ROSE MARY KOCH and T. ALLEN KOCH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiffs, vs. No. 01-5260 CIVIL TERM GERALD HENDERSON and RUSSELL BIBLE, Defendants. CIVIL ACTION -LAW NRY TRIAL DEMANDED PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the complaint in the above-captioned matter. Respectfully Submitted, IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 ~HN B. DOUGHE Y Attorney I.D. No. 70680 ~.. f-~ ~. - ~~ . s-~f -~a=~ _ - ' ,, =~ ~ ` ~= ; r- ~ -= - ~ 5: -H - C_1 . ~-~ C G i V `! ^: C17 K Johnson, Duffle, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Attorneys for Defendants Lemoyne, Pennsylvania 17043-0109 (717)761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants NOTICE TO PLEAD TO: Rose Mary Koch and T. Allen Koch Go Ira H. Weinstock, Esquire 800 North Second Street Harrisburg, PA 17102 NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED AND NOW, this 8'h day of April, 2002, you are hereby notified to file a written response to the enclosed preliminary objection within twenty (20) days of the date of service hereof, orjudgment may be entered against you. JOHNSON, DUFFIE, STEWART & WEIDNER .. By: . Roy eidner, Jr. :156478 5774-389 Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW GERALD HENDERSON and JURY TRIAL DEMANDED RUSSELL M. BIBLE, Defendants PREL/M/NARYOB/ECT/ON TO PLAINT/FFS' COMPLAINT AND NOW, this 8th day of April, 2002, come Defendants, through their undersigned attorneys, and preliminarily object to Plaintiffs' complaint upon the following: 1. Plaintiffs' complaint, the averments of which are incorporated herein but neither admitted nor denied, claims personal injuries arising out of a claim that Defendants were negligent and careless resulting in a motor vehicle accident which occurred on September 10, 1999. 2. As evidenced by the docket from the Prothonotary's office, a copy of which is attached hereto, incorporated by reference herein and marked as Exhibit "A", Plaintiffs commenced this action by filing a praecipe for writ of summons on September 6, 2001. 3. As evidenced by the return of service of the Sheriffs Department of Cumberland County, Pennsylvania, a copy of which is attached hereto, incorporated by reference herein and marked as Exhibit "B", the writ was returned "not found" by the Sheriff without service on Defendants on September 25, 2001. 4. As evidenced by the docket from the Prothonotary's office, a copy of which comprises Exhibit "A" hereto, a copy of the Sheriff's return of service was forwarded to Plaintiffs' counsel along with any refund of Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA costs on September 25, 2001. 5. As evidenced by the docket from the Prothonotary's office, a copy of which comprises Exhibit "A" hereto, no further action was taken by Plaintiff to serve Defendants. 6. As evidenced by the docket from the Prothonotary's office, a copy of which comprises Exhibit "A" hereto, no further action was taken by Plaintiff to reinstate the writ of summons issued on September 6, 2001. 7. By reason of the foregoing, Plaintiffs failed to serve the writ within 30 days as required by Pa. R.C.P. 401(a) or reissue it pursuant to Pa. R.C.P. 401(b){1), thereby effectively ending any extension of the two year statute of limitations which expired on September 10, 2001. WHEREFORE, Defendant prays that your Honorable Court terminate Plaintiffs' action on account of the passage of the statute of limitations without appropriate service upon Defendants. JOHNSON, DUFFIE, STEWART & WEIDNER __ ~. C. Roy Weidner, Jr. :156478 5774389 CERT/F/GATE OF SERVICE AND NOW, this 8~h day of April, 2002, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Ira H. Weinstock, Esquire Ira H. Weinstock, P.C. 800 North Second Street Harrisburg, PA 17102 JOHNSON, DUFFIE, STEWART & WEIDNER Michelle agy :156478 5774-389 EXH/B/T `;q " ...~ c 1 ___a...-.-Y - 2001-952b0 K.OCH ROSE MARY ET AL {vs) HENDERSON GERALD ET AIs Reference 130..: Filed.:......: 9/06/2001 Case-'S.ype.._•: WRIT OE St3MMONS -- Time.........: 3:52- Judgment..... .OD Execution Date 0/00/0000 Judge Assigned: -Jury Trial.... Disposed Desc.: --Dispposed Date. D/00/OD00 ---- =------ Case Comments -------~-_--- ~ Higher Crt 1.: Higher Crt 2.: r******************************************_**_***************~***************~r*** General Index Attorney Info KOCH ~?.OSE MARY - PLAINTIFF WEINSTOCK SRA H --- 816 CENTER STREET ENOLA PA 1702b - KOCH ~' ALLEN 816 CENTER STREET ENOLA PA 17025 HENDERSON GERALD 392 D~iIRY LANE PALMYRA PA 17078 BIBLE RUSSELL M 392 D~;IRY LANE PALMYRA PA 17078 PLAINTIFF DEFENDANT DEFENDANT * Date Entries ***********************************,z******************************************** - --- - - FIRST ENTRY 9/06/2001 PRAECIPE FOR WRIT OF-SUMMONS IN CIVIL ACTION-WRIT__,OF SUMMONS ISSUED --------- --------=---_------ 9/25/2001 -SHERIFF'S RETURN-FILED -- Litigant.: HAND RSON GERALD SERVED 9/2401 NOT FOUND PALMYRA PA LEBANON COUNTY WRIT OF SU[~IMONS Costs....: $89.68 P By: IRA NIEINSTOCK 09/25/2001- ------------ __`-=---------------`--- ---==- `---- --------------= 9/25/2001 SHERIFF'S RETURN FILED - Litigant,: B BL RUSSELL M SERVED 9 2401 NOT FOUND PALMYRA PA LEBANON COUNTY W IT OF SUMMONS Costs....: $16.00 Pd By: IRA WEINSTOCK 09/25/2001- - - - - - - - - - - - - - - LAST ENTRY - r - - - - - - --- - - - *************************************************************_***,r************** --Escrow Iriforccggaation Fees & Debits Be*q Bal P~[nts/Add End Bal ******************************* ****x*** *****,r *****************~***~***#***** WRIT OF SUMMONS _ 35.OD 35.00 .GG TAX ON-WRIT .50 .50 .00 SETTLZMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 _ ------45.50-----`-45:50- ----`-- .D0 f kYr*ie*~k***~lr**~7t***ic if*****~e**ir**Y.:F*ir***~t is ~r$***~/c1t*ic tr*ir**~k ~t'~k_*~h**~k *~le :k*~k *:k ~k ~k ~k*4*9: vk ~t ~k*!r End of Case Information k*:F*~t**:F**~t*****:F+k':F*:k*ic>k******~t**~*:t*~F ~F i~*~F*~h*sF ~F*~t:F*+F:F*~k*~F**~F*Ye *~t**~M******~k****** EXH/B/T "B" SHERIFF'S RETURN - OUT OF COUNTY ` CASE NO: 2001-05260 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS HENDERSON GERALD ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: HENDERSON GERALD but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania, to serve the within WRIT OF SUMMONS On September 25th 2001 this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Lebanon Co 52.68 .00 89.68 09/25/2001 IRA WEINSTOCK So ansyr rs // Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this dS~= day of ,20{, A . D . 2c.. Prothonotdr .m ~ ~~ _ SHERIFF'S RE'1'UKN - vu~r ur uvuivrs ` CASE NO: 2001-05260 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARX ET AL VS HENDERSON GERALD ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: BIBLE RUSSELL M but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LEBANON serve the within WRIT OF SUMMONS County, Pennsylvania, to On September 25th 2001 this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 09/25/2001 IRA WEINSTOCK Sworn and subscribed to before me this a8e~ day of So answe s: ~. t~ R. Thomas Kline Sheriff of Cumberland County ~/ A.D. ~~ Prothonotary ~,~.4 . . ' In 'the Court o~F ~:®iflflm®II Plus of Cumberland County, Pennsylvania Rose Mary Koch et al vS. Gerald Henderson et al SERVE: Gerald Henderson No. O1 s260 civil Now, 9 / 7 / o l , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~,,,~ Sheriff of Cumberland County, PA Affidavit ®f Serviee Now, within upon at by handing to a 20_; at o'clock M. served the and made laiown to So answers, the contents thereof. Sheriff of Sworn and subscribed before me this _ day of , 20_ copy of the original COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA $ . , ' ,• In The C®aart ~f C~mna®n Pl~~s ®f ~u~~er~~nd C®unty, Pennsylvania Rose Mary Koch et al VS. Gerald Henderson et a1 g)1RVE: Russell M. Bible No. O1 5260 civil Now, 9 / ~ / o i , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .~ -' Sheriff of Cumberland County, PA Affidavit ®f ~e8-viee Now, within upon at by handing to a copy of the original and made Irnown to the contents thereof. So answers; Sheriff of County, PA COSTS Sworn and subscribed before SEP~VICE $ me this cta}= of . 20~ MILEAGE AFFIDAVIT 20_, at o'clock M. served the P ~D ~. .. _ _ . ... .. .. . ..........~......-:~....~ .1 I J ~ ~.. SUMMONS No. 01-5260 CIVIL Lebanon, PA, September 24, 2001 ROSE MARY KOCH, ET AL vs. GERALD HENDERSON & RUSSELL M. BIBLE STATE OF PENNSYLVANIA } COUNTY OF LEBANON ? SS: (RETURN TO CUMBERLAND CO. SHERIFF) DOCKET PAGE 16892 Kirk Juliani, Deputy Sheriff, being, duly sworn according to law, deposes and says that after due and diligent search by him having been made in this bailiwick, and after having exhausted all known facets to locate defendant, as stipulated under Rule of Civil Procedure, Rule 430, "good faith effort," he was unable to find GERALD HENDERSON & RUSSELL M. BIBLE, the within named DEFENDANTS, and he therefore returns "NOT FOUND" as to the said GERALD HENDERSON & RUSSELL M. BIBLE, the within named Defendants. *NOTE: According to Deputy Juliani, the Defendants reside outside of this bailiwick, most likely living in Dauphin County, PA. Sworn to and subscribed before me this 24th day of September, A.D., 2001 ary Public NOILARIAL SEAL ANCY L. SiARNER, Notary Public _lebanen. Lebanon County, Pa. M1y Commission Expires AuEust 6. 2002 SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced costs paid on 9/12/01 Check No. 33898 Amount 100.00 Costs incurred: Amount 52.68 Refund: Check No. 10546 Amount 47.32 All Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 C+ ~ {~ a fV 'T7 r1i ~r _~ ~"~ ~ ~ J' GS. .~7 -' ~~4~1 .. 1 ~_-~lJ T i - ~ i 1.~ (i ~: ,-. C W C7~ G ~ L _ ^~J ~ C - II F,~ ~~ ~~., ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs, v. GERALD HENDERSON, and RUSSELL M. BIBLE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.Ol-5260 CIVIL TERM CIVIL ACTION -LAW JiJRY TRIAL DEMANDED ANSWER TO DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. By way of further answer, the Defendants' insurer was contacted on August 17, 2001 and was notified of the Plaintiffs' representation in regard to the matter. See Exhibit `A". On August 23, 2001, Paul Gearin, Claims Specialist for Harleysville Insurance, contacted Plaintiffs' Attorney and notified him that he was the Claim Representative assigned to the case. In the aforementioned letter, Mr. Gearin acknowledges that Plaintiff will be filing a Praecipe for Writ of Summons and that he would contact Plaintiffs' Attorney to discuss the case upon receipt of the "specials". See Exhibit "B ". On August 23, 2001, Plaintiffs' Attorney forwarded to Mr. Gearin copies of medical reports and a pay out log. See Exhibit "C". 3. Admitted. 4. Denied. It is specifically denied that the Sheriff's return of service was forwarded to Plaintiffs' Counsel on September 25, 2001. To the contrary, the first time Plaintiffs' Counsel was notified of the inability of the Sheriff to locate the Defendants, was by Defendants' Counsel on or about April 8, 2002 and by the Sheriff on April 9, 2002. Prior to that date, Plaintiffs' Counsel believed that proper service was made upon the Defendants. By way of further answer, on November 12, 2001, at the request of Mr. Gearin, a copy of the Praecipe for Writ of Summons was faxed to him. See Exhibit D ". At no time did Mr. Gearin or any representative of the Defendants indicate that the Defendants had not been served. 5. Denied. It is specifically denied that no further action was taken by the Plaintiff to serve Defendants after the filing of the Praecipe. See Answer to Paragraph 4. 6. Admitted in part and Denied in part. It is admitted that the Writ of Summons was not reinstated, however, it is denied the no further action was taken to reinstate the Summons. To the contrary, the filing of the Complaint on March 27, 2002 constituted a reissuance of the Writ pursuant to Pennsylvania Rule of Civil Procedure, 401(5). 7. Denied. The Plaintiffs' have attempted to make a good faith effort to serve the Defendants and up until April 9, 2002 Plaintiffs believed that Defendants had been served and therefore the two year statute of limitations has not expired. WHEREFORE, Plaintiffs' respectfully request that Defendants' Preliminary Objections be dismissed with prejudice. Respectfully Submitted, IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: (717) 238-1657 By: /~. ~l ~..- JOHN B. DOU HER'fY 2 LAW OFFICES IRA H. WEINSTOCK~ P. C. SUITE 100 IRA H. WEINSrOGK 8OO N. SECOND STREET HARwselmc. PENNSYLVANIA 17102 WENDY D. BOWIE JASON M . WEINSTOGK AREn CODE 717 JOHN B. 1)Ol1GHER7Y TELEPHONE: 238-1657 eIEFFREY R•SGHOTT August 17, 2001 Ken Schmitt, Claims Supervisor Harleysville Insurance Company P. 0. Box 1016 Moorestown, NJ 08057 RE: Yow Insured My Client Date of Accident Claim No. FAX; (717) 238-6691 E-MASr. Annarass weins tock.law®verizon. net - Gerald Henderson/Russell Bible - Rose Mary Koch - September 10, 1999 - A44 227145-U Dear Mr. Schmitt: Please be advised I represent Rose Mary Koch. She was injured in an accident on September 10, 1999 as a result of the negligence of your insured. It is my understanding your company paid property damage in the amount of approximately $8,000 to my client. You had a file number as captioned above. I would appreciate talking to the claim adjuster as soon as possible to resolve this matter. As you can see the statute of limitations is approaching and I would like to resolve this matter prior to September l Ocn Ronald Sahonick was working on this case and it is my understanding he has passed away. Your attention to this matter is of inmost importance. Very truly yours, IHW:Isw IRA H. WEINSTOCK EXHIBIT "A" ~*. * ,, Harieysville~ Good people to know MidAtlantic Claims Service Center Office Address Mailing Address 308 Harper Drive, Suite 200 P.O. Box 1016 Moorestown, NJ Moorestown, NJ 08057-3245 08057-0916 (888) 595-9876 Fax (868) 492-8954 www.harlevsvillegrouo.com August 23, 2001 The Law Offices of Ira H. Weinstock, P.C. 800 N. Second Street, Suite 100 Harrisburg, Pennsylvania 17102 Att: Ira H. Weinstock, Esq. Claim Number: 44-227145 UJ Insured: Geraldine Henderson Date of Loss: September 1U, 1999 Claimant: Rose Mary Koch Dear Mr. Weinstock: We are in receipt of your letter of representation dated August 17, 2001. Please be advised that I am the claim representative handling the above captioned matter. Kindly direct all future correspondence to my attention referencing the above claim number. As per our conversation today, please provide a medical specials package so that we can properly evaluate your client's claim. It is my understanding that you will draft a summons in order to protect the statute in this matter. Upon receipt of the specials, I will contact you with any questions. Should you wish to discuss this claim in the interim, feel free to contact me at the below listed number. Very truly Paul Clair 12-1646 ext 2345 n@harleysvillegroup.com EXHIBIT ,.B.. LAW OFFICES IRA H. WEINSTOCK~ P. C. SUiT£ 100 sO0 N. SECOND STREET IRA H. WEINSTOGK HARRtseURC. PeNNSVt.VANV. 17102 WENOY D• BOWIE - JASDN M. WeMSTGCx, ~+~ CODE 7I 7 Jotmt 8. DOVCxeRiv Tei.ePtroNE: 238-I6Fi7 JeeFRet R. ScxoTT August 23, 2001 Paul Gearin, Claims Rep. Harleysville Insurance Co. 308 Harper Drive, Suite 200 P, 0. Box 1016 Moorestown, NJ 08057 FAX: (717) 238-6691 E-Mna. Annruvss weinstock.law®verizon.net RE: Your Insured - Gerald Henderson/Russell Bible My Client - Rose Mary Koch Date of Accident - September 10, 1999 Claim No. - A44 227145-U Dear Mr. Gearin: Enclosed please find medical reports and the payout log with regard to the above matter. Please give me a call so we can discuss this matter. Very truly yours, IRA H: WEINSTOCK IHW:Isw Enclosures EXHIBIT n `.n _ ~ ..~.~ . ~~~n: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ~ - /~ No . 41 --. .5~(.C> L. t c~ ~ ~ ~~ Civil Action - (X) Caw ( ) Equity Rose Mary Koch and T. Allefl Koch, her husband .~ 816 Center Street Enola, PA 17025 TRIDE C~P'~ ~~ ~E~(3R® In Tastirrto~y ~a=hs~#: d ~ml"e ~ss~to s€$ my hand and the ! ei sa3d c~ at ~arffs9e, Pa. This~.--~~-----day _. ,1~.e ~~~ Pro onotary Plaintiff(s) 8 Address(es) . Gerald Henderson . 392 Dairy Lane versus Palmyra, PA 17078 • and Russell M. Bible ~ ~ ;J 392 Dairy Lane ~ "- ~-f Palmyra, PA 1707~~ rT~t -'_ ~, -~ ,_ ~ _ C ~ ~ ~{_) Defenda~s ) ~ °s' =' Address() ~ J~rri cn rv ~ PRAECIPE FOR WRIT OF SUMMONS TO 7HE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned ar_tion. 2 Writ of Summons shall be issued anti forwarded to t )Attorney (x)Sheri~ Ira H. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 Names/Address/ Telephon No. of Attorney ~~ ~/. ~~ Signature of Attorney Supreme Courfi ID No_ 01602 Dat=: 9/4/01 WRIT OF SUMMONS TO THE ABOVE hiAMED DEFENDANT(S): 'YOU ARE NOTIFIED THAT THE ABOVE-NAMED n!AINTIFFI'S') HAS!HAVE ~OMM1iEPlCED .4N ACTION AGAINST YOU. Pr3thonotary y~.'.'"~~ -yam Date: `~Lti~~y o~y~/ //('A ~Af, r~ Deputy EXHIBIT nDn ~ I'air~k he~e~ ii rF'V er56 IS i}SPCC] T~~~ ~;lditiJndl in10r^atlon ~; 800 North Second Street Harrisburg, Pennsylvania 17102 E-Mail Address; weinstock.law@vedzon.net Phone: (717) 23&1657 Facsimile: (717) 23&6691 IRA H. WEINSTOCK WENOY D. BOWIE JASON M. WEINSTOCK JOHN B. DOUGHERTY JEFFREY R. SCHOTT To: Paul Gearin From: Ira H. Weinstock, Esquire Fax: 856-642-7846 Pages: 2 Phone: (717) 238-1657 Date: November 12, 2001 Re: Koch, et al. vs. Henderson, et al. CC: ^ Urgent ^ For Review ^ Please Comment ^ Please Reply ^ Please Recycle • Comments: THE INFORMATION BEING TRANSMITTED BY THIS FACSIMILE IS CONSIDERED ATTORNEY-CLIENT OR ATTORNEY WORK-PRODUCT PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE 4ND1V1DUAL OR ENTITY NAMED. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU SHOULD BE AWARE THAT ANY DISSEMINATION, DISTRIBUTION, DISCLOSURE, COPYING OR USE OF THE CONTENTS OF THIS TRANSMISSION IS STR{CTLY PROHIB4TED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA U.S. MAIL. THANK YOU. .~ ~.. ~~~~~~~*x~K~K~~~~~~~~~~~~~~W~~~~~~~~~~~~W~~~~~~~c~~Xt~XX~K~X~~~~~~C~~~c~~lc~~~~~~~c~X~1t~J~~~X~~X~~1<~X~~Y>k~X;K~~K>Y ~ TRANSACTION REPORT ~ ~ ~ NOV-12-2001 MON 11 20 AM ~ ~ ~ ~ FOR IRA H. WEINSTOCK,P.C. 7172386691 ~ X: SEND(M? ~ ~ ~ ~ DATE START RECEIVER PAGES TIME NOTE 37# ~ ~ - - - ~ ~ NOV-12 11 19 AM 18566427846 2 4D" OK 59 ~ ~ - ~ CERTIFICATE OF SERVICE AND NOW, this 25~' day of April, 2002, I, John B. Dougherty, Esquire, attorney for Plaintiff, hereby certify that I served the within ANSWER TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT this day by depositing the same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: C. Roy Weidner, Jr., Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 HN B. DOUG RT ^. F~,_ti ~ r" {~\i - Z'i 4~ v -.. ' ~ ^J <_?- -rt ^; - `- _ .. < m ~. _„ •_t =< SHERIFF'S RETURN - OUT OF COUNTY ' SASE NO: 2001-05260 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS HENDERSON GERALD ET AL R. Thomas Kline ""~ Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: HENDERSON GERALD but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania, to serve the within WRIT OF SUMMONS On September 25th 2001 this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing Out of County Surcharge Dep Lebanon Co 18.00 9.00 10.00 52.68 nn So ans~ rs: /: TThomas Kline Sheriff of Cumberland County ~..~~ 09/25/2001 IRA WEINSTOCK Sworn and subscribed to before me this dS'4r= day of ,26{y A . D . T.c.. Prothonot~r / w~aui _ _..~_ _ ... ,.d . _ ... ~: SHERIFF'S RETURN - OUT OF COUNTY ' CASE NO: 2001-05260 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS HENDERSON GERALD ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: BIBLE RUSSELL M but was unable to locate Him deputized the sheriff of LEBANON in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On September 25th , 2001 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 09/25/2001 IRA WEINSTOCK Sworn and subscribed to before me this .28 `~ day of ..,/~, So answe s: ~~ R. Thomas Kline Sheriff of Cumberland County ~~ A.D. ~~ ~ Prothonotary ' ' ~n 't'he Court of Common Pleas of Cumberland County, Pennsylvania Rose Mary Koch et al VS. Gerald Henderson et al SERVE: Gerald Henderson No. O1 5260 civil Now, 9 / 7 / o i , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumherland County, PA Now, within upon at by handing to a 20 , at o'clock M. served the and made known to Lebanon Affidavit ®f Service copy of the original So answers, tlae contents thereof. Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA Now, 9 / ~ / 01 , I, SHERIFF GF CUMBEIYL,AND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff: ~~ ...~ Sheriff of Cumberland County, PA Affidavit ®f Service Now, within upon at by handang to a 20_, at o'clock copy of the original M. served the and made known to the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of , 20. COSTS SERVICE _ MILEAGE _ AFFiI~AVIT County, PA SUMMONS No. 01-5260 CIVIL ROSE MARY KOCH, ET AL vs. Lebanon, PA, September 24, 2001 (RETURN TO CUMBERLAND CO. SHERIFF) DOCKET PAGE 16892 GERALD HENDERSON & RUSSELL M. BIBLE STATE OF PENNSYLVANIA } COUNTY OF LEBANON } SS: Kirk Juliani, Deputy Sheriff, being duly sworn according to law, deposes and says that after due and diligent search by him having been made in this bailiwick, and after having exhausted all known facets to locate defendant, as stipulated under Rule of Civil Procedure, Rule 430, "good faith effort," he was unable to find GERALD HENDERSON & RUSSELL M. BIBLE, the within named DEFENDANTS, and he therefore returns "NOT FOUND" as to the said GERALD HENDERSON & RUSSELL M. BIBLE, the within named Defendants. *NOTE: According to Deputy Juliani, the Defendants reside outside of this bailiwick, most likely living in Dauphin County, PA. Sworn to and subscribed before me this 24th day of September, A.D., 2001 Public NOZ~A.RIAL SEAL ANCY L. S7ARNER, Notary Public Lebanon. Lebanon County, Pa. My Commission Expires Autust 8, 2092 SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced costs paid on 9/12/01 Check No. 33898 Amount 100.00 Costs incurred: Amount 52.68 Refund: Check No.10546 Amount 47.32 All Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 IN 7HE COURT OF COMMON PLEAS '~ _ CUMBERLAND COUNTY, PENNSYLVANIA Civii Action ( )Law ( ) Equity Rose Mary Koch and T. Allen Gerald Henderson Koch, her husband ~ 392 Dairy Lane 816 Center Street versus Palmyra, PA 17078 Enola, PA 17025 TRIBE C®PY ¢R~~4! ¢$E(~°OFtD ~ and 1nTe'9tlmonywhereof,lharaUnt®seimyhand xussell M. Bible and the S?~1 of said Court at Carlisle, Pa. 392 Dairy Lane 9(7I3 `~'~ day 0 o~ ~ Palmyra, PA 17078 Prot onetary --__ Plaintiff(s) 8 Defendant(s) 3 Address(es) Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SA1D COURT: Please issue ~~rit of summons in the above-captioned ar_tion. 2 4Jrit of Summons shall be issued and forwarded to ( )Attorney (x)Sheriff Ira H. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 1710'L Phone: 717-238-1657' Signature of Attorney Supreme Court ID No. _.01602 Names/Adcress/ Telephon No. of Attorney WRi7 TO THE ABOVE NAMED DEFEPJDAPJT(S): Dat>: 9/4/01 SUMMONS YOU ARE NOTIFIED THAT THE ABOVE-?!AHED PLAINTIFF(S) HAS/HAVE COMhiEPlCED ,4N ACTIOPS AGAINST YO"J. Date:~~ [e ~~~ Ciir~k here ii reverse is it-sued r.%~' ~dciti~nal infcreation IN THE COURT OF COMMON PLEAS "~ ~ ~ CUMBERLAND- COUNTY, PENNSYLVANIA No . /1 l -- .CJ/_Pj ~U c 1..~ l Civil Action ( ) Law ( ) Equity Rose Mary Koch and T. Allen Koch, her husband , 816 Center Street Enola, PA 17025 • Gerald Henderson • 392 Dairy Lane versus Palmyra, PA 17078 . and In Testimony ~hereot, I hors unto set my hand and the sea9 of said Cou at Carlisle, ~a. This '~- day o Pro onoGary ; Plaintiff(s) S Address(es) Russell M. Bible 392 Dairy Lane Palmyra, PA 17078 Defendant(s) 3 Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. 2 4lrit of Summons shalt be issued and fonaarded to ( )Attorney (x)jheriff Ira H. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 1710_2 Phone: 717-238-1657 Names/Adcres:/ Telephon No. of Attorney Date: WRIT OF SUMMONS TO THE A80VE ~iAMED DEFEPJDANT(S): 01602 YOU ARE NOTIFIED THA T THE ABOVE-?IAPiED °LA I NT I FF(S ) HAS!HAVE COMPiEP!CED ,4N ACTION AGAINST YOU. Date: ~~ f~• 1.a2~~a~ve~ Signature of Attorney Supreme Court ID No. ( 1 `;neck here ii reverse is i~-sued r_~~ ~dditi~nal infer^atiun ~2q••'~ "•'Pfi#~&i,~wiY<'wsn6~ixw££'~a'cawkA s'-a ai iatif.. 1~ t".- ~~.1 F3~ a ~ 0 ~ ~;j,'~~a ,„~ta_ ' o ~r~,::. ;.; at~3 3~~~'~~~ OFIIGINAL ^;;; ,{; ,~ . t 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY - - - - - - - - - - - x ROSE MARY KOCH and CIVIL ACTION - LAW T. ALLEN KOCH, . her husband, . . N0. 01-5260 CIVIL TERM Plaintiffs, . vs. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants JURY TRIAL DEMANDED - - - - - - - - - - - x ------------------------------------------------- DEPOSITION TESTIMONY OF LINDA WITMER ------------------------------------------------- 800 North Second Street November 25, 2002 Harrisburg, PA 2:00 p.m. ------------------------------------------------- IT IS HEREBY STIPULATED and agreed that the reading, signing and sealing of the within transcript is waived. IT IS FURTHER STIPULATED and agreed that all objections except a to the form of the question are reserved to the time of trial. ------------------------------------------------- LEARY REPORTING 112 West Main Street, Ste. 200 Mechanicsburg, Pennsylvania 17055 (717) 233-2660 Fax (717) 691-7768 F 1 2 3 4 5 6 7 8 9 10 11 12 l 1 3 ,.~ 14 15 16 17 18 19 20 21 22 23 24 25 '; :.~; APPEARANCES: LAW OFFICES OF IRA H. WEINSTOCK 800 North Second Street Harrisburg, PA 17102 By: JOHN B. DOUGHERTY, ESQ. (717) 238-1657 For Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.0. Box 109 Lemoyne, PA 17043-0109 By: C. ROY WEIDNER, JR. , ESQ. For Defendant z 3 ~, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 `t ,,~, I N D E X WITNESS EXAMINATION BY PAGE Linda Witmer Mr. Dougherty 4, 16 Mr. Weidner 11 E X H I B I T S EXHIBIT DESCRIPTION PAGE 1 Fax from she riff's department 8 2 Letter from Mr. Dougherty to Post Office 9 3 Letter from Mr. Weinstock to Prothonotary 17 _e I~ k~ t~ ~_,' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 PROCEEDINGS LINDA WITMER, having been duly sworn by Lucinda K. Hoffman, Notary Public, was examined and testified as follows: MR. DOUGHERTY: We're here today, November 25, 2002, for the deposition of Linda Witmer in the case of Koch versus Henderson and Bible on the defendant's preliminary objections to plaintiff's complaint. EXAMINATION BY MR. DOUGHERTY: Q Please state your name? A Lind a Witmer. Q And Miss Witmer, how are you employed? A I've been a legal secretary for Mr. Weinstock for many years. Q And back in Septe mber and October of 2001, were you employed in that capacity? A Yes, I was. Q And what was your position at that time? ~.._ r. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Legal secretary. Q And just describe what your job duties were in that position? 5 ~. A I answer phones, open the mail, type pleadings, file pleadings with courthouses. Q In regard to opening mail, could you just elaborate in a little more detail as far as what your procedure is, what you do with that? A As I open the mail, I put them in a pile for each of the five attorneys. And then I go through and open that particular pile for that attorney and give that pile of mail to that attorney for-- Q Is there anything that you work on yourself? A As I go through the mail, only basically for Mr. Weinstock, there are things like bills from arbitrators or American Arbitration, I will pull those off for my own and send them directly to our clients. Q How about with regard to divorce and things like that? A If I file a divorce out of county ~~ 6 ~, ,4$- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and I get the complaint back, I will serve the defendant with it. I will do a cover letter and everything. I get waivers back, you know, I know what- the next procedure is. Q How about with regard to the Rose Koch case, did you have any responsibilities at all with regard to that case? A When it got close to the statute expiring, I was told to prepare a praecipe for a writ of summons, which I did, and typed up the cover letter and sent it to Cumberland County. Q I'm going to show you a document that was previously marked Witmer Exhibit 3. Can you identify that document for us, please? A It's a cover letter that I typed up to Cumberland County with the praecipe and the filing fees for the prothonotary, sheriff's costs. Q Was that sent out on or about September 4, 2001, to your knowledge? A Yes. Q Do you remember receiving any "~~~ ;~: A> 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 response at all from the sheriff's office? A We would have gotten a refund check from the sheriff's department. Q Do you remember if we did receive a refund check? A Yes. Q Do you remember when that came in? A The end of September. Q Of 2001? A 2001. Q Was there anything else that was in with the refund check? A No. Q What was done, to your recollection, after that point? A We received preliminary objections. And I was asked to find out from the sheriff's department if the defendants were served with a writ of summons. Q Before the preliminary objections were ,filed, was there a complaint Filed? A I know there was a rule to file a Complaint. Q And then we received preliminary .;~~; 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objections from the defendant? A Right. Q What did you do after the preliminary objections were served? A I was asked to find out whether or not the defendants were served. Q What did you do? A When I called the sheriff's department, I was told that they were not served. And I asked for a return of service because I did not have one. And then they faxed a return of services to me. (Whereupon the document was marked for identification as Witmer Deposition Exhibit Number 1) BY MR. DOUGHERTY: Q I'm going to show you a document we've marked as Witmer Exhibit 1 Can you identify that, please? A It's a fax that I received from the sheriff's department. Q And what is included in that document? A It would be the return of services .1;. tip. ~, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 for Mr. Henderson and Mr. Bible. Q Prior to April 9 of 2002, did you receive or did this office receive a return of service with regard to-- A No. Q --that complaint? A No. Q What steps were taken at that point to effect service? A We wrote to the post office to verify, I guess, asking for their current address, which was the same address that we used on the praecipe. (Whereupon the document was marked for identification as Witmer Deposition Exhibit Number 2.) BY MR. DOUGHERTY: Q I'm going to show you a document that was marked as Witmer Exhibit 2. A Um-hum. Q Can you identify that, please? A It's the letter that went to the post office. Q Did we receive a response from the ~,~, i I °°, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 post office? A Yes. There is a notation on the bottom of the letter. Q And what does the notation indicate? A Customer resides at the above 10 address. Q What steps were taken at - strike that. There are two pages to that document. Is that correct? A Yes. One for each defendant. Q And is the same response on both of those? A Yes. Q What steps were taken at that point to effect service? A We contacted the sheriff's department and asked them to make service of the complaint at the addresses. Q And to your recollection, what happened after that? A The sheriff's department tried to serve Lebanon County. And they got a notation from Lebanon County that they did not reside in Lebanon County, that the Palmyra address was a ~~,< =~,.' r.. "£_rcY/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Dauphin County address. And we had another fee that we had to pay the sheriff's department in order for them to deputize Dauphin County. Q To pay the Cumberland County Sheriff? A Right. Q And to your knowledge, was service effected through the Dauphin County Sheriff's Office? A Right. MR. DOUGHERTY: All right. I have no further questions. EXAMINATION BY MR. WEIDNER: Q Miss Witmer, did you personally mail the September 4, 2001 letter comprising Exhibit 3? A Yes.' Q Did you carry it to the post office? A When I leave at 5:00, I take all may mail and put it in the mailbox. Q And where is the mailbox? ti 12 y 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The one at the YMCA. Q How long have you been a legal secretary? A _ More than 25 years. Q How many suits would you say you handle in a year through this office, suits at your office files? A Negligence suits? Q Any kind. A Any kind of suit, I would estimate maybe, I don't know 20 to 50. Q Are you aware that the sheriff is supposed to serve the writs within 30 days of their filing? A Yes. Q Did you do anything to follow up with the sheriff's department within the 30 days after this suit was filed in September of 2001? A When I received the refund check, I assumed that it was served. Q Did you follow up with the sheriff, though, to ask for a return of service then? A Not until I was asked by Mr. `~~, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dougherty to find out whether service was made. 13 Q Didn't it seem unusual to you that you got a check without a return of service? A There are some counties that we don't have to file that return of service for. Dauphin County does not require one. Q You didn't call the sheriff at all after getting that refund check? A No. Q Didn't do anything to make sure the defendants were properly served at that time? A No. Q Just assumed that because you got a refund check they-had been served? A The fact that I didn't get the whole $150 back and I got a refund led me to believe that they made some kind of service. Q And you were aware that the writ had to be served within 30 days of issuance. Correct? A Yes. Q So the first you took any steps to •. ~~,~ ~>, I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 ascertain whether the writ had been served was after the defendants' preliminary objections were filed? A Right. Q And you knew you had a statute of limitations that would run out on or about September 10th of 2001. Correct? A Right. Q Does your office ever hire investigators? A No. Q Do you ever have to locate people that need to be served with process? A I've used a process server for federal court complaints. There is a company that we use in New Jersey. Q But you've never had anybody actually find a defendant for you so you can get proper service? A No. Q And you're telling us, can you recall, as we sit here today, actually opening the envelope that had the sheriff's refund check in? A I open probably between 50 to 75 ,~ :~, ~ , '' ~~ t 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pieces of mail every day. There are five attorneys and, you know-- Q You really can't tell us today that there was not a return of service with that check, can you? A There was not a return of service with that check or it would be in the file. Q Have you ever had misfilings here? 15 A Sure. Q Could it have been misfiled? A Not likely. Q Is it a possibility? A I suppose yes, it would be a .possibility. Q The sheriff's department said they mailed the check back here to this office on September 25, 2001. Were you here at work on September 26th, 2001? A Yes, I was. Q Are you sure of that? A Yes, I am. I checked. Q Okay. How about September 27? A Yes. ., ~,~~, I r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A here. Q day? A And how about September 28? Yes. You checked your records here? I was not on vacation. I was 16 Okay. And you open the mail every Yes, I do. MR. WEIDNER: That's all I have. REEXAMINATION BY MR. DOUGHERTY: Q Just a follow-up question. If there had been a return of service indicating that the complaint had not been served, would the praecipe have not been served? Would that have caught your eye? A Sure. I would have known to follow up and we had to reinstate the complaint and get a more current address, which we did by writing to the post office. Q Is that .something that you would typically do if something would come in showing it wasn't-- A I would bring it the attorney's ~. ~~.~,~, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attention that was handling the case. And if he informed me to go ahead and file the reinstatement, then I would do it. MR. DOOGHERTY: Nothing further. MR. WEIDNER: Nothing further. 17 ~, ~~~ (Whereupon the document was marked for identification as Witmer Deposition Exhibit Number 3.) (The deposition concluded at 2:10 p.m.) •. ~,,~ ~~ e~,> p~~'. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE 18 I, Lucinda K. Hoffman, do hereby certify that the proceedings are contained fully and accurately in the notes taken by me during the hearing of the foregoing cause, and that this copy is a correct transcript of the same. NOTARIAL SEAL LUCINDAN.HOFFMAN,NotaryPobliC - , ManchesterTwp.,York CoonN K My CommissionFxpires Sept.25.'z2004 L u c i n d a K. H o f n, R e p o r t e r Notary Public in and for the Commonwealth of Pennsylvania My commission expires September 25, 2004 f'"` Fran:CU~BERLAND CO. SHERIFF'S OFFIC7172406397 04/09/2 10:41 #257 P.~1/006 R. THOMAS KLINE 5heriH F?DWARD L SCHORPP Solidtor TO: ~~~v°r!q FROM: ~~ dam-. DATE: y/9/~.2 ~o,~,~t~ of P9;um~e~r$ ~ ~t ~ Y ,. OFFICE OF THE SWERIFF~ One Courthattse Square Carlisle, Pennsylvania 17013 FACSJMII,E TRANSMITTAL FORM BONNY R. ANpER$ON Chief Deputy JODY S. SMITH Reel Estate Deputy DEPOSITION , EXHIBIT NUIvIBBR OF PAGES (INCLUDINO COVFsR SfIEET) 6 MESSAGE: ~," ~~ ~~~ ~ ~ ~~ a-~~ Office Number (717) 240-6390 FAX Number (717) 240-6397 From:CUMBERL4Np ~, SHERIFF'S OFFIC7172406397 04/09/2002 10:41 #257 P.001/(~l6 SHERIFF'S RETURN - OVT OF COUNTY CASE NO: 2001-05260 P COMMONWEALTH OF PFSNNSYLVANIA: COUNTY OF CUMBERLAND KOCH ROSE MARY ET AL VS HENDER90N C+ERALD ET AL R. Thomas Kline Sheriff or D®puty Sheriff wbo being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: HENDERSON GERALD but was unable to locate Him in hie bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania, to serve the within WRIT OF SUMMONS On Septembez 25t 2001 , t s o fife was in receipt of t e attached return from LEBANON Sheriff's Costs: Docketing Out of County .... ~~~. Dep Lebanon Co 18.00 9.00 1m..40- 52.66 ,00 69.68 09/25/2001 IRA WEINSTOCK Sworn and subscribed to before me this day of A.D'. so ane rs: ~~ /~ mas Kl ne Sheriff of Cum~er~7.'and County Prothonotary From:CUME3ERLAND ~. SHERIFF'S OFFIC7172406397 04/09/2002 10:41 #257 P.003/006 SHERIFF' S RE'T'URN - OUT OF COUNTY CASE N0: 2001.05260 P COI~tONWEAL2'H OF PENNSYLVAN2A: COUNTY OF CUM$ERLAND 1000H ROSE MARY ET AL VS BENDER60N GERALD ET AL R. ~'homas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: H2HLS RUSSELL M but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LEBANON County, Hennsylvania, to serve the within WRIT OF SUMMONS on September 25th 2001 , this off ce was in receipt of the attached return from LEBANON . Sheriff's Costs: Docketing 6.00 Out of County .oo Suxahasge 10..00._... .00 .00 16.00 09/25/2001 IRA NETNSTOCK 30 answe e : ~„~-~ $. 14~~_:~ne ._ Sheriff of Cumberland County Sworn and subscribed to before me this day of A.b. Prothonotary From:CUMBERLAI~ CO. SHERIFF'S OFFIC7t72406397 04/09/2002 10:41 #257 P.()04/0(~ In The Caurt of Comnnon Pleas of Cu~berlat-d County, Pennlsylvania ' Ro9e Masy Koch et al VS. .Gerald Henderson et al SERVE: Gerald Henderson 01 5260 civil No. Nvw, g / 7 / ai ,1, SHERIFF OF CLiMBERLANb COUNTYt, PA, do hereby deputize the Sheriff of iebanon _ County to execute this Writ, this deputation being made at the request and risk of the Plaiantiff. ~.,..~ Sheriff of Cumberland Country, PA . Affidavit of Service Now, within upon af' by handing to a and made known to copy of the original the contems thereof. So answers, Sheriff of Sworn and subscribed before me this ~, day of , 20~ 20~ at o'clock M, served the COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA From:(~IMBERLAND CO. SHERIFF'S OFFIC71724063,97 04!09/2002 10:42 #257 P.005/006 In The~Caurt of Coffinnon Fleas a:f Cumberland County, Peam~nsylvania Rose Mezy Koch et al ~..~. V5. Gerald Henderson et al SERV13~ Russell M. Bible • NO. OI 52fi0 civil Now, 9 / 7 (41 , I, SHERIFF OF CLTNTBE1tLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaiutiff Sheriff of C7unberlaad County, PA Affidavit of Service Now, _ within W,~ upon _ 20_,,at. o'clock M. served the at by handing to a and made known to Sworn and subscn'bed before me this,,,- day of , 20_ copy of the original the contents thereof. So answers, Sheriff of . County, PA COSTS SERVICE ~ $ NZIZ.EACrE _ AFF'il7.A.4TT Fran:Cl~16ERLAND CO. SHERIFF'S OFFIC7172406397 04/09/20()2 10:42 #257 P.O(16/0~ svanwtoNs No. o1-s26o CIVIL ROSE MARY KOCH, BT AL vs .. asRALD HENDERSON & RIISSI3LL M. BIHLB STATE OF PENNSYLVANIA } COUNTY OF LSHANON } 88: Lebanon, PA, September 24, 2001 (RSTORN TO CQMBBR DOCRL>T PAGE 16892 Kirk Juliaai, Deputy Sheriff, being duly sworn according to law, deposes and says that after due and diligent search by him having been made in this bailiwick, and after having exhausted all known facets to locate defendant, as stipulated under Rule of Civil Procedure, Rule 430, "good faith bffart,"•he was unable to fiord GERALD•H8ND8R80N & RUSSELL M. 82HL8, the within named DEFBNDANTS, aad~he therefore returns "NOT FOUND" ae to the said OLRALD HSNDERSON & RIISSELx. M. BIBLB, the within named Defendants. *NOT'S: According to Deputy Juliani, the Defendants reside outside of this bailiwick, most likely living in Dauphin County, PA. Swore to and subscribed before me this 24th day of September, A.D., 2001 NOd~RIAI. SEAL AwCY l.. STARKER. Koteey Pu61in ._~.ebnnon. Leans" Gsunty, Pa, Mr Csmmissun Esoiren Aa~nat 8. 2002 Public CO. SHERIFF) SHERIFF' S COSTS IN A$OV8 PROCkT;D2NC3S Advanced Costs paid on 9/12/01 Cheek No. 33898 Amount 100.00 Costs incurred: Amount 52.68 Refund: Check No. 10546 Amount 47.32 All Sheriff's Coats shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff s fees on the same before he ®hall be obligated by law to make return thereof. SeC. 2, Act of June 20', 1911, P.L. 1092 H. WEIN9"1'OGK WEnrov D. BOWIE JnsoN M. WEWSTOGu JOHN B. DOUGHERTY JEFFREY R. SCHOTT LAW - OFFICE S IRA H. ~EINSTOCK~ P. C. SUITE 1 ~ 8O0 N. SECOND STREET t-tARRISBURO, PENNSYt.VMIIA t 7102 ~GDDE 717 71:I.EretoNE: 238-1657 April 11, 2002 Custodian of Records United States Postal Service Palmyra Office 60 South Railroad Street Palmyra, PA 17078 Re: Freedom of Information Act request Dear Sir or Madam: FAX: (717) 238-6691 E-MgrL ADDRESS vein s tock.l aw®verizo n. net DEPOSTTION Please be advised that my office represents an individual who has a lawsuit pending against Gerald Henderson. Pursuant to the Freedom of Information Act, we request information regarding any forwarding address for Gerald Henderson. Mr. Henderson's previous address was 392 Dairy Lane, Palmyra, PA 17078. If you require any further information please let me know. Otherwise, thank you for your anticipated cooperation. Very truly yours, ~~ Q~~~ JOHN B. DOUGHERTY JBD:rIn C'~,~n~ ns. ~s c ~ ~ G®~ A-adKs.l LAW OFFICES IRA H. WEINSTOCK P. C ~ . StnrE 100 -" "~ H. WEWS T GK O 8OO N. SECOND STREET HARRISBURG. PENN5VI,vANIA 17102 .. .~ ~ WENDY D. WW1E ._ JASON M. WEWSTOGK AREA CODE 7] 7 JOHN B. DOUGHERTY Ter.et~ttoxE: 238-1657 JEFFREY R. SGHOTT April 11, 2002 Custodian of Records United States Postal Service Palmyra Office 60 South Railroad Street Palmyra, PA 17078 Re: Freedom of Information Act request Dear Sir or Madam: FAX: (717) 238-6691 E-MAIL ADDRESS weinstock.law~verizon.net f Please be advised that my office represents an individual who has a lawsuit `t: ~/ pending against Russell Bible. Pursuant to the Freedom of Information Act, we request information regarding any forwazding address for Russell Bible. Mr. Bible's previous address was 392 Dairy Lane, Palmyra, PA 17078.. If you require any further information please let me know. Otherwise, thank you for your anticipated cooperation. Very truly yours, J HN B. DOUGHERTY JBD:rIn CuS-~jMer /C!<S(~-deS ~.~t'~ Q~cvt. /tdfn.Sl f ~ LAW OFFICES IRA H. Wenus'rocsc WEnrov D. B(iV'7E JnsoN M. WLTINSTOCK Jorw B. DoucxeRrv Je~Rer R. 5cxorr IRA Ii. WEINSTOCK, P. C. SvIrE 100 800 N. SECOrro SrREEr HARRrsevRC. PEtnvsvwASVSA 17102 AREA CiODE 7 17 71er.EPtsoNe: 238-1657 °® September 4, 2001 Curt Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Dear Mr. Long: FAX: 1717) 28-6691 E-MAIL ADDR~BS weinstock.law®v etizon.net DE~P,M1O_SIT-ION I W t IIC~Y ~' a I D RE: Rose Mary Koch and t. Allen Koch vs. Gerald Henderson and Russell M. Bible Enclosed please find the following documents: 1. A Praecipe for Writ of Summons; 2. A check in the amount of $45.50 made payable to the Prothonotary; 3. A check in the amount of $150.00 made payable to the Office of the Sheriff; and 4. Aself-addressed and stamped envelope. Kindly docket the enclosed Praecipe for Writ of Summons and then take two Writs of Summons and the check for $150.00 to the Sheriffs Department and ask them to make service on the Defendants. Please return aclocked-jn copy of the Praecipe to the undersigned in the self-addressed and stamped envelope which I Kaye provided. If you have any questions or need anything further, please feel free to contact tpe. Very holy yours, IRA H. WEINSTOCK IHW:Isw Enclosures ~•,~•~~ ~~c,16 ~ IN THE COURT OF COMMON PLEAS tLAND- COUNTY, PENNSYLVANIA No. OZ'S aZ~~ Civil Action - (X) Law ( ) Equity . Rose Mary Koch and T. Allen Koch, her husband .~ 816 Center Street Enola, PA 17025 Plaintiff(s) 8 Address(es) PRAECIPE FOR WRIT OF SUMi+40N5 TO THE PROTHONOTARY OF SAID COURT: Defendant(s) 8 Address(es) Please issue writ of summons in the above-captioned action. 2 Writ of Summons shall be issued and forwarded to ( )Attorney (x)Sheriff Ira H. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisbur , PA 171.02 Phone: 7 7-238-1657 Names/Address/ Telephon No. of Attorney Signature o Supreme Court ID No. 01602 Dates: 9/4/01 WRIT OF SUMMONS TO THE ABOVE PiAMED DEFEP:DANT(S): YOU ARE NOTIFIED THAT THE ABOVE-?!AHED PLAINTIFF(S) HAS!HAVF COMP~iEPlCED AN ACTIOfJ AGAINST YOU. Pr;thonotary Date: by Deputy Gerald Henderson 392 Dairy Lane versus Palmyra, PA 17078 • and RnssellfM. Bible• 392 Dairy Lane Palmyra, PA 17078 )`;rie~k here ii reverse is i;-sueti r~~ ~d~iti~nal inforcation k O J" `() ~~ ~~ _) r+ 1',, I ' L< ' L.: Cif _~ __ C.~ ~~ ,. ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 01-5260 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFFS' COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this 28a` day of February, 2003, after careful consideration of Defendants' Preliminary Objection to Plaintiffs' Complaint, and for the reasons stated in the accompanying opinion, the preliminary objection is denied and Defendants are afforded twenty days from the date of this order within which to file an answer to the complaint. BY THE COURT, U ~r J esley Ole , r., J. ' John B. Dougherty, Esq. 800 North Second Street Harrisburg, PA 17102 Attorney for Plaintiffs C. Roy Weidner, Jr., Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants ~rw•wec.~{ 3 - D 3- 03 ,. ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 01-5260 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFFS' COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., February 28, 2003. For disposition in this negligence action arising out of an automobile accident is Defendants' Preliminary Objection to Plaintiffs' Complaint. The preliminary objection seeks dismissal of the complaint based on Plaintiffs' failure to pursue service in accordance with Lamp v. Heymanl and its progeny. The matter was argued on January 8, 2003. For the reasons stated in this opinion, Defendants' preliminary objection will be denied. STATEMENT OF FACTS On September 10, 1999, Plaintiff Rose Mary Koch was allegedly injured in a two-vehicle accident due to the careless operation of an automobile driven by Defendant Russell M. Bible and negligently entrusted to him by Defendant Gerald Henderson; Plaintiff T. Allen Koch allegedly suffered a loss of consortium as a result of her injuries.2 ~ 469 Pa. 465, 366 A.2d 882 (1976) (adopting rule that praecipe for writ of summons remains effective, for purposes of commencing action, only if plaintiff refrains from course of conduct serving to stall legal machinery). z Plaintiffs' Complaint, filed Mar. 27, 2002. Plaintiffs filed a praecipe for writ of summons in this case against Defendants on September 6, 2001,3 thus protecting, at least temporarily, the two- year statute of limitations.4 The address provided by Plaintiffs for each Defendant on the praecipe for writ of summons was 392 Dairy Lane, Palmyra, PA 17078.5 This was the correct address for each Defendant.b The filing of Plaintiffs' praecipe for writ of summons was accompanied by checks from their counsel to the prothonotary in the amount of $45.50 for the filing fee and to the sheriff in the amount of $150.00 to cover costs of service of the writ of summons on Defendants. The cover letter to the prothonotary from the office of Plaintiffs' counsel directed that the applicable check and two copies of the writ of summons be transmitted to the sheriff, and requested that service be made upon Defendants by the sheriff.$ Palmyra Borough is a municipality situated entirely in Lebanon County.9 Unfortunately for Plaintiffs, as it developed, not all Palmyra post office addresses are in Lebanon.10 Upon receipt, on September 7, 2001,11 of the writ of summons, the Cumberland County Sheriff's office consulted a•reference book utilized for the 3 Plaintiffs' Praecipe for Writ of Summons, filed Sept. 6, 2001. ° See Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524(2) (2002). s Plaintiffs' Praecipe for Writ of Summons, filed Sept. 6, 2001. e Deposition of Linda Witmer, filed Dec. 23, 2002, ex. 2. ~ Id. ex. 3. s Id. ex. 2. 9 E.g., Pennsylvania Spatial Data Access System, Pennsylvania Atlas (showing, on map produced in conjunction with agencies of the Commonwealth of Pennsylvania, that Palmyra Borough lies within Lebanon County), http://gisl.pasda.psu.edu/Website/PA Atlas/ (last visited February 13, 2003); see also Pa. R.E. 201 (providing that the court may take judicial notice of a fact "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). io Deposition of Linda Witmer, filed Dec. 23, 2002, at 10-11. ii Deposition of Doris Goodhart, filed Dec. 3, 2002, at 5. 2 purpose of determining the counties in which municipalities are located, and ascertained that Palmyra was in Lebanon County.lz Accordingly, the Cumberland County Sheriff deputized the Lebanon County Sheriff to serve Defendants with the writ of summons.13 A "Not Found" return of service, dated September 24, 2001, was thereafter returned by the Lebanon County Sheriff to the Cumberland County Sheriff.14 A note contained on the return by the Lebanon County deputy sheriff who attempted service stated that "the Defendants reside outside of this bailiwick, most likely living in Dauphin County, PA."15 The note did not add the critical information that this was because the Palmyra address of Defendants was a Dauphin County address.lb In retrospect, a staff assistant with the Cumberland County Sheriff's Office observed: [M]ost of [the] problem [in this case] lies with [this] Lebanon County return, because the ...return, in my opinion, doesn't stipulate that that address is not in Lebanon County. It just says they're not in Lebanon County ....17 In any event, the Cumberland County Sheriff filed the sheriff's return on September 25, 2001,18 and remitted to Plaintiffs' counsel a balance of $44.32 on the $150.00 deposit for service.19 According to the secretary for Plaintiffs' counsel, the remittance to her office was not accompanied by a copy of the return, iz Id. at 15. 13 Id. at S; id. exs. 1-2. 14Id. ex. 3. 'S Id. ie Id. " Id. at 14. 18 Defendants' Preliminary Objection to Plaintiffs' Complaint, filed Apr. 15, 2002, para. 3; Plaintiffs' Answer to Defendant's Preliminary Objection to Plaintiffs' Complaint, filed Apr. 26, 2002, paza. 3. 19 Deposition of Linda Witmer, filed Dec. 23, 2002, at 7; Deposition of Doris Goodhart, filed Dec. 3, 2002, ex. 4. 3 and she assumed (reasonably in the court's view) from the amount of the deposit consumed that service had been effected.20 On March 6, 2002, counsel for Defendants filed his appearance in the case,21 and, by praecipe dated March 15, 2002, Defendants' counsel ruled Plaintiffs to file a complaint.22 Plaintiffs' complaint was filed on March 27, 2002.23 Defendants filed the preliminary objection sub judice to Plaintiffs' complaint on April 15, 2002.24 The preliminary objection requested that the court "terminate Plaintiffs' action on account of the passage of the statute of limitations without appropriate service upon Defendants." 25 The basis of the preliminary objection is indicated in Defendants' statement of the question presented: Should service be stricken and the case be dismissed where Plaintiffs failed to effectuate service of the Writ of Summons, failed to immediately and continually reissue the Writ of Summons until service was made, and in fact, did not serve original process until in excess of nine (9) months after the running of the applicable statute of limitations?26 Plaintiffs filed an answer in opposition to the preliminary objection on Apri126, 2002.27 20 Deposition of Linda Witmer, filed Dec. 23, 2002, at 6-7, 12-13. 21 Defendants' Fraecipe To Enter Appearance, filed Mar. 6, 2002. zz Defendants' Praecipe To Issue Rule To File Complaint, filed Maz. 18, 2002. The rule was issued by the prothonotary on March 18, 2002. It appears that this action on the part of Defendants does not waive the issue presented herein. See Keller v. LaBarre, 225 Pa. Super. 504, 311 A.2d 683 (1973). z3 Plaintiffs' Complaint, filed Mar. 27, 2002. 24 Defendants' Preliminary Objection to Plaintiffs' Complaint, filed Apr. I5, 2002. zs Id. ze Brief in Support of Defendants' Preliminary Objection to Plaintiffs' Complaint, dated Jan. 7, 2003, at 3. 27 Plaintiffs' Answer to Defendant's Preliminary Objection to Plaintiffs' Complaint, filed Apr. 26, 2002. Plaintiffs' answer to the preliminary objections avers, inter alia, with supporting documentation, that as early as August 17, 2001, Defendants' insurer and Plaintiffs' counsel were 4 With the filing of Defendants' preliminary objection, Plaintiffs were alerted for the first time to the fact that service might not have been effected.28 The secretary for Plaintiffs' counsel contacted the Cumberland County Sheriff's Office, was advised that service had not been made on Defendants, and requested that copies of the return of service be faxed to her.29 Upon discovering from the faxed return that "the Defendants reside[d] outside of [Lebanon County], most likely in Dauphin County, PA," 30 she sought from the Palmyra office of the United States Postal Service, pursuant to the Freedom of Information Act, forwarding addresses for the Defendants.31 The response from the Postal Service, dated April 19, 2002, was that neither Defendant had moved from the aforesaid Palmyra address.32 The secretary then requested the Cumberland County Sheriff to re-attempt service,33 utilizing a reinstated complaint.34 This time, when the Cumberland County Sheriff deputized the Lebanon County Sheriff for purposes of service, the "Not Found" return of the Lebanon County Sheriff contained the following note, making clear that Defendants' Palmyra address was actually in Dauphin County: engaged in negotiations concerning the case, and that on August 23, 2001, Defendants' insurer acknowledged in writing its understanding that a praecipe for writ of summons would be filed by Plaintiffs' counsel "to protect the statute in this matter." Id., Ex. A, B. Defendants' preliminary objection was listed for argument by Defendants' counsel without an evidenfiary record having been made with regard to these averments. Defendants' Praecipe for Listing Case for Argument, filed Dec. 3, 2002. Although an argument can be made that Plaintiffs' allegations should be deemed admitted under Pennsylvania Rule of Civil Procedure 206.7(c), the facts of the present case are, in the court's view, sufficiently supportive of Plaintiffs' position on the preliminary objection without reference to these additional averments of Plaintiffs that it is not necessary to resolve this question in this opinion. 28 Deposition of Linda Witmer, filed Dec. 23, 2002, at 7-8, 12-14. 297d. at 8; id. ex. 1. 30 Id. ex. 1. 31 Id. at. 9; id. ex. 2. 3z Id. at 9-10; id. ex 2. 33 Id at 10. 34 Plaintiffs secured reissuance of the complaint on April 26, 2002. Plaintiffs' Praecipe To Reinstate Complaint, filed Apr. 26, 2002. 5 *NOTE: [The Lebanon County deputy sheriff attempting service] checked once again with the Palmyra Post Office, and was informed that the given address of 392 Dairy Lane, Palmyra, is located in Dauphin County. He also checked with Lebanon County Assessment Office who verified that 392 Dairy Lane, Palmyra, is not in Lebanon County.as The Cumberland County Sheriff thereupon deputized the Dauphin County Sheriff for purposes of service36 of anewly-reinstated complaint,37 resulting in an additional service fee to Plaintiffs.38 Service upon Defendants by the Dauphin County Sheriff was ultimately effected on May 21, 2002 (Defendant Bible), and May 28, 2002 (Defendant Henderson).39 DISCUSSION The early history of the legal issue presented in this case has been recounted by Justice, later Chief Justice, Zappala in Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079(2001). Prior to Lamp [v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976)], and before the adoption of the Rules of Civil Procedure, a rule had developed through case law regarding actions commenced by issuance of a writ of summons that allowed the plaintiff to "continue process to keep his cause of action alive" by reissuing the writ within a period of time equivalent to the statute of limitations applicable to the cause of action. The filing of the praecipe within the statute of limitations commenced the action, and reissuance of the writ kept the action alive for another "equivalent period," whether service was made or even attempted. The purpose of the rule identifying the filing of the praecipe as the commencement of the action, without regard to when the prothonotary actually issued the writ or the sheriff served it, was "to free the plaintiff 3s Sheriff s Return, filed June 4, 2002. 3e Id. 37 Plaintiffs secured reissuance of the complaint a second time on May 20, 2002. Plaintiffs' Praecipe To Reinstate Complaint, filed May 20, 2002. 38 Deposition of Linda Witmer, filed Dec. 23, 2002, at I I. a9 Sheriff's Return, filed June 4, 2002. 6 from the risk that the statute of limitations may bar him if he acts in time, but someone else fails to act in time." Lamp represented a first step toward curbing the potential for abuse inherent in this rule. It had apparently become common for counsel to file a praecipe for writ of summons but instruct the prothonotary not to deliver the writ to the sheriff for service. Acknowledging that this practice was consistent with the letter of the rule ...but not with its purpose, [the Pennsylvania Supreme Court] disapproved the practice and changed the rule prospectively pursuant to [its] supervisory power. [It] stated that in actions instituted after the date of the Lamp decision, "a writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Id. at 393-94, 768 A.2d at 1082. In essence, in Lamp the Pennsylvania Supreme Court "recognized service, or at least a good faith attempt at service, as a kind of condition subsequent that must be fulfilled to complete the commencement of the action begun by filing the praecipe." Id. at 396, 768 A.2d at 1083. This principle was applied by the Court in Ferinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986), where afour-week lapse by plaintiffs' counsel in instructing and paying the sheriff for service of a writ of summons was not satisfactorily explained. Id. Tn approving the trial court's dismissal of plaintiffs' complaint, the Court in Ferinacci stated that, "[i]n each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whether agood-faith effort to effectuate notice was made." Id. at 594, 511 A.2d at 759 (emphasis added). The principle was again applied in Witherspoon, where service in a case commenced by praecipe for writ of summons was not effected until about nine months after the statute of limitations had run; due to deficiencies in the performance of plaintiff's private process server. 564 Pa. at 390-91, 768 A.2d at 7 1080. In concluding that the trial court's action in striking service was a proper exercise of discretion, Justice, later Chief Justice, Zappala stated: [T]he general intent of [Lamp and its progeny] is to allow a plaintiff to commence an action by filing a praecipe even at the very last moment before the limitation period expires and not be penalized because the "official" follow-up activity (issuance of the writ by the prothonotary, service of the writ by the sheriff) is not also completed within the limitation period. [The cases] establish that any failure regarding follow-up activity that is attributable to the plaintiff or his agents, rather than public officials, falls outside this purpose. Id. at 396> 768 A.2d at 1083. Although the proposition that the "equivalent period" doctrine should be replaced with a requirement that "process ... be immediately and continually reissued until service is made" in cases of the present type was also a subject of discussion in Witherspoon, it does not appear that this proposition commanded a majority of the Court. Id. at 398-407, 768 at 1084-89. In the instant case, the elements of bad faith on the part of a plaintiff's counsel or another person acting as plaintiffs agent that have caused courts effectively to terminate actions commenced by praecipe for writ of summons due to subsequent delays in service are not present. Plaintiffs' counsel did not, as in Lamp, act to stall the legal machinery set in motion, nor did he proceed unreasonably in light of the unique circumstances in the case, which were occasioned by official as opposed to private conduct. See Sanders v. State Farm Mutual Automobile Insurance Co., 424 Pa. Super. 372, 376, 622 A.2d 966, 968 (1993); Gould v. Nazareth Hospital, 354 Pa. Super. 248, 252-53, 511 A.2d 855, 858 (1986). Indeed, in the court's view, this case is less an example of bad faith on the part of counsel than of the old aphorism that "the problem with the law is not the law~it's everything else."ao ao To the extent that Defendants' position herein depends upon the failure of Plaintiffs to immediately and continually reissue the writs, it is a contention that is as yet unsupported by the Pennsylvania Supreme Court. Miller v. Philadelphia Geriatric Center, No. 02-CA-1307, 2002 8 For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 28a' day of February, 2003, after careful consideration of Defendants' Preliminary Objection to Plaintiffs' Complaint, and for the reasons stated in the accompanying opinion, the preliminary objection is denied and Defendants are afforded twenty days from the date of this order within which to file an answer to the complaint. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. John B. Dougherty, Esq. 800 North Second Street Harrisburg, PA 17102 Attorney for Plaintiffs C. Roy Weidner, Jr., Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants WL 1608223 (E.D. Pa. July 15, 2002) (noting that part of lead opinion in Witherspoon stating that, for a writ of summons to toll the limitations period, "process must be immediately and continually reissued until service is made," was supported "only ... by two jusfices" and could not support application of such a rule). 9 k DISSENTING OPINION BY JUDGE HESS I most respectfully disagree with the conclusion reached by my learned colleagues. As noted in Cintas Corp. v. Lee's Cleaning Services, Inc., 700 A.2d 915 (Pa. 1997): Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed.... Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her.... Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of an action against him or her. Id. at 917-918. Lamp v. Heyman, supra, and its progeny require that the tolling effect of the statute of limitations will be extended only to plaintiffs who make a good-faith effort to effectuate service. Otterson v..Zones, 690 A.2d 1166 (Pa. Super. 1997). I am satisfied that good faith is more than the mere absence of bad faith. Our courts have repeatedly held that a demonstration of mistake or inadvertence does not meet the burden of showing good faith for the purpose of compliance with Lamp. See Cahill v. Shults, 643 A.2d 121 (Pa. Super. 1994) and cases cited therein. This rule is not attenuated merely because the court understands why the mistake was made. In this case, the Sheriff's return not only indicated that service had not been made but suggested the proper county where service "most likely" could be effected. Where the tolling of the statute of limitations is dependent upon good- faith attempts of service, such good faith requires, at a minimum, that counsel examine the Sheriff's return to determine whether or not service was made. Here, counsel simply relied on the mistaken conclusion of a member of the firm's clerical staff. I would grant the defendants' preliminary objection. Johnson, Duft"ie, Stewart & Weidner By: C. Roy Weidner, 7r. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (7177761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD '~. ,~ TO: Rose Mary Koch and T. Allen Koch c/o Ira H. Weinstock, Esquire Ira H. Weinstock, P.C. 800 North Second Street Harrisburg, PA 17102 AND NOW, this /ay of March, 2003, you are hereby notified to plead responsively within twenty (20) days of the date of service hereof, orjudgment may be entered against you. JOHNSON DUFFIE, STEWART & WEIDNER B• oy Weidner, Jr. :210585 5774-389 } Johnson, Duffle, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW GERALD HENDERSON and JURY TRIAL DEMANDED RUSSELL M. BIBLE, Defendants DEFENDANTS' ANSWER TO PLAINTIFFS' COMPLAINT AND NOW, this'0 d'y of March, 2003, come Defendants, through their undersigned attorneys, and answer Plaintiffs' complaint as follows: 1. - 2. Admitted. 3. Denied. After a reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 4. - 5. Admitted in Part. Denied in Part. Defendant Russell M. Bible's name is admitted. The remainder of these averments are denied. 6. - 7. Admitted. 8. Denied in Part. Admitted in Part. That Plaintiff Rose Mary Koch had the right of way is denied as a conclusion of law to which no responsive pleading is required. The remainder of this averment is admitted. ,. ~ __ W~.. ~ ~ I* 9. Admitted in Pan`. Denied in Part. That the vehicle operated by Defendant Russell M. Bible collided with Plaintiffs' is admitted. The remainder of this averment is denied. 10. Denied in Part. Admitted in Part. The causation of damages claimed is denied generally and ownership of the vehicle by Gerald Henderson is specifically denied. The remainder of this averment is admitted. 11. Denied. This averment is deemed denied as a conclusion of law to which no responsive pleading is required. 12. - 17. Denied. COUNT 1-NEGLIGENCE Rose Mary Koch v. Russell M. Bible 18. Admitted in Part. Denied in Part. Paragraphs 1 - 17 hereof are incorporated by reference herein. 19. - 20. Denied. These averments are deemed denied as conclusions of law to which no responsive pleading is required. 21. - 26. Denied. WHEREFORE, Defendants demand that Plaintiffs' complaint against them be dismissed. COUNT II -NEGLIGENCE PER SAY (SIC) Rose Mary Koch v. Russell M. Bible 27. Admitted in Part. Denied in Part. Paragraphs 1 - 26 hereof are incorporated by reference herein. 28. Denied. _~~..~ ~ ~~~ ~r 29. Denied. This averment is deemed denied as one to which no responsive pleading on the part of Defendants is required. 30. Denied. This averment is deemed denied as a conclusion of law to which no responsive pleading is required. 31. - 33. Denied. 34. Denied. This averment is deemed denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendants demand that Plaintiffs' complaint against them be dismissed. COUNT 111 Rose Mary Koch v. Gerald Henderson 35. Admitted in Part. Denied in Part. Paragraphs 1 - 34 hereof are incorporated by reference herein. 36. - 39. Denied. WHEREFORE, Defendants demand that Plaintiffs' complaint against them be dismissed. COUNT IV-LOSS OF CONSORTIUM T. Allen Koch v. Russell M. Bible and Gerald Henderson 40. Admitted in Pan`. Denied in Part. Paragraphs 1 - 39 hereof are incorporated by reference herein. 41. - 42. Denied. After a reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. WHEREFORE, Defendants demand that Plaintiffs' complaint against them be dismissed. NEW MATTER - MVFRL 43. Defendants are entitled to the restrictions on Plaintiffs' ability to recover damages provided in the Motor Vehicle Financial Responsibility Law. WHEREFORE, Defendants demand that Plaintiffs' complaint against them be dismissed. AFFIRMATIVE DEFENSE- STATUTE OF LIMITATIONS 44. Paragraphs 1 - 7 of Defendants' preliminary objections are incorporated by reference herein. WHEREFORE, Defendants demand that Plaintiffs' complaint against them be dismissed. JOHNSON, DUFFIE, STEWART & WEIDNER By' . Roy Weidner, Jr. :210585 5774-389 :~~~~ VERIFICATION The undersigned says that the facts set forth in the foregoing are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. A Russell M. Bible Dated: CERTIFICATE OF SERVICE AND NOW, this /d day of March, 2003, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: John B. Doughterty, Esquire Ira H. Weinstock, P.C. 800 North Second Street Harrisburg, PA 17102 :210585 5774-389 JOHNSON, DUFFIE, STEWART & WEIDNER By: ~~'~ r~L~.C/ Michelle Hagy `~~r~- MAR 1 7 2003 RAYETTE I. (RONK) SLOOP, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :CIVIL ACTION -LAW CHADD E. RONK, : N0.2001-6989 CIVIL TERM Defendant IN CUSTODY ORDER OF COURT AND NOW, this 17`h day of March, 2003, being advised that the matter has been resolved, the Conciliator hereby relinquishes jurisdiction. FOR THE COURT, ~i / '~- V acq~ me erney, squire ,.~ :_ ...w~: ~.~. ,ir„-.., J LI ~( i'~ C 1 ~fl+'~~ '~ j '~_ 11 - , , .~.... ~. ~'.C7 . ,~.~.~, _. _ ,_ __,~ v ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs, v. GERALD HENDERSON,and RUSSELL M. BIBLE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.Ol-5260 CIVIL TERM CIVIL ACTION -LAW JTJRY TRIAL DEMANDED ANSWER TO DEFENDANTS' NEW MATTER 43. Denied. Defendants' allegation contains a conclusion of law to which no answer is required. To the extent an answer is required, Plaintiffs deny the same. 44. Denied. Defendants' allegation contains a conclusion of law to which no answer is required. To the extent an answer is required, Plaintiffs deny the same. WHEREFORE, Plaintiffs demand judgment against the Defendants jointly and severely in an amount in excess of the jurisdictional amount requiring azbitration under the Rules of Cumberland County together with delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, lawful interest, punitive damages, costs and any other relief the Court deems just and appropriate. Respectfully Submitted, IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: (717) 238-1657 By: ~ Q . OHN B. DOUG RT~P + Y CERTIFICATE OF SERVICE AND NOW, this 25th day of March, 2003, I, John B. Dougherty, Esquire, attorney for Plaintiffs, hereby certify that I served the within ANSWER TO DEFENDANTS' NEW MATTER this day by depositing the same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: C. Roy Weidner, Jr., Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 BY: ~dLyv~ lam. GJG~u.c~Gw~tl HN B. DOUGHE TY ROSEMARY KOCH and T. ALLEN KOCH, her husband, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiffs, vs. No. 01-5260 Civil Tenn GERALDINE HENDERSON and RUSSELL M. BIBLE, Defendants. CIVIL ACITON -LAW JURY TRIAL DEMANDED STIPULATION TO AMEND COMPLAINT It is stipulated by the Plaintiffs and the Defendants that the caption with regard to the above-captioned matter shall be amended to reflect the name "Geraldine Henderson" as a Defendant. It is further stipulated that any reference in the complaint to "Gerald Henderson" will be amended to reflect the name of "Geraldine Henderson" C. Roy Weidner, Jr., Esquire ®(9 /~ ~~ Attorney ~r the Defendants JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Jo ~B. Dougherty, Esqu re ~~3 Attorney fo. the Piaintiffs IRA tI.WEINSTOCK, F.C. 800 North Second Street Harrisburg, PA 17102 CERTIFICATE OF SERVICE AND NOW, this 17~h day of June, 2002, I, John B. Dougherty, Esquire, attorney for Plaintiff, hereby certify that I served the within STIPULATION TO AMEND COMPLAINT this day by depositing the same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: C. Roy Weidner, Jr., Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. BOX 109 Lemoyne, PA 17043-0109 OHN B. DOU R ..: - - ~yNS'.at'. ' ~FF'~r~.5v;w":s.a ., r ~:.. <..~ 7i::f2f~'+?4'~ ~ e. v:.mr:~vrn~~reew.~s ,fig ,~~,..,~..,.~ avn ~vnIfi~N~Iaa .. ::: . .......... ~~ a C':3 c: ~... t, -- ,sec -- R,~, ; ~_ ~ ; __ - cr~; ~~; . , -c _. ~ ; r't, tt_ ~ ~ -, ...~ .:i .-~ : `s` v .: .;vn G ~-~ E~ ~` 6~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KOCH, ET AL Vs. ET AL NO. 015260 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 C ROY WEIDNER, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s). Date: 05/07/04 C ROY WEIDNER, ESQUIRE 301 MARKET ST PO BOX 109 LEMOYNE, PA 17043-0109 717-761-4540 ATTORNEY FOR DEFENDANT INQUIRI$S SHOIILD HS TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335'-3590 By: Kimberly Petrahl File #: M310188 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KOCH, ET AL Vs. HENDERSON, ET AL ~ No. 015260 T0: JOHN DOUGHERTY, ESQ (PLAINTIFF) NOTICE OF IlVTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) 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. Date: 04/16/04 C ROY WEIDNER, ESQUIRE 301 MARKET ST PO BOX 109 LEMOYNE, PA 17043-0109 ATTORNEY FOR DEFENDANT INQIIIRI85 SSOIILD B8 ADDRSSSSD T0: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3590 By: Kimberly Petrahl Enc(s): Copy of subpoena(s) Counsel return card File #: M310186 OF' PE6II~SYI.VANIA COUNTY OF QR~IDERLAl`ID KOCH, ET AL Vs. Fite No. ni~~Fn HENDERSON, ET AL , SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TRAVELERS PROP CAS, PO BOX 13485, READING PA 19612-3485 TO: ATTNe C'7~ATMR DEPT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following doraanents or things: ___ SEE ATTACHED ADDENDUM at MEDICAL LEGAL REPRODIICTIONS(As+~940 DISSTON ST., PBILA., PA You may deliver or mail legible copies of the documents or produce things requested ty this subpoena, together with the certificate of canpliance, to the party making thi= request at the address listed i3bove. 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 f, 20) days after its service, the party serving this, subpoena may seek a court orde~• crnpelling you to carrvly with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLONING PERSON: NAME: C RnY WFTDNF.R .. ESQ ADDRESS: TELEPHONE: LEMOYNE, PA 17043-0109 SUPREME COURT ID # 215-335-3212 ATTORNEY FOR: iaS~o DEFENDANT M310188-01 DATE: r9 ~~ty -meal of the Court BY TFE COURT~~:/7 l "~ q //l ~ fie..-~ - Prothonotary~ yl3rk, Civil- Division p n, ~,oo; Deputy (Eff. 7/97) ADDENDUM TO S UBPOENA KOCH, ET AL Vs HENDERSON, ET AL No. 015260 CUSTODIAN OF RECORDS FOR: TRAVELERS PROP CAS ANY AND ALL RECORDS, MEDICAL AND OR ACCIDENT CORRESPONDENCE, NOTES, RECEIPTS, BILLS, ETC., AND ANY OTHER INFORMATION PERTAINING TO: NAME: ROSE MARY KOCH ADDRESS: 816 CENTER ST ENOLA PA DATE OF BIRTH: 11/03/45 SSAN: 199349367 ALL POLICY INFORMATION INCLUDING DECLARATION PAGES FOR THE DATE OF LOSS, 9/10/99 AS WELL AS THE ENTIRE CLAIM FILE FOR THE DATE OF LOSS CLAIM #S3B8188 ALL FEES MUST BE APPROVED PRIOR TO RECORDS BEING FORWARDED. RECORD CUSTODIAN -COMPLETE AND RETURN [ l RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ l NO DOCUMENTSAVAILABbE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Aut orized signature or TRAVELERS PROP CAS CUMBERLAND M310188-01 *** SIGN AND RETURN THIS PAGE *** COMNDNWFALTH of PENNSYLVANTA 00[ID71R OF COMBERLAI!ID KOCH, ET AL Vs. File No. 015260 HENDERSON, ET AL SUBPOENA TO PRODUCE DOCUh1ENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CONSOLIDATED REHAB CO, PO BOX 1719, LANSDALE PA 19446-0827 of Person or Ent Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATT~CHELS-A73 -- at MEDICAL LEGAL REPRODUCTIONS~A~ss~940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested ti~ this subpoena, together with the certificate of compliance, to the party making thi= 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 1201 days after its service, the party serving ttii , subpoena rt:ay seek a court orde~• compelling you to canply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAh~: C ROY WEIDNER, ESQ ADDRESS:-~~, „~~n~~~ TELEPHONE: _ LEM 043-0109 SUPREhE COURT fD ~ 215-335-3212 ATTORNEY FOR: 19530 DEFENDANT M310188-02 DATE : __ naz,; ~1 r2~tL`/ S 1 of the Court BY THE OOURT: l /e ~ ~ ° l ~ 7 .. Prothonotary/ 1 k, Civil Division Deputy (Eff. 7/97) ADDENDUM TO SUBPOENA KOCH, ET AL Vs HENDERSON, ET AL No. 015260 CUSTODIAN OF RECORDS FOR: CONSOLIDATED REHAB CO ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: ROSE MARY KOCH ADDRESS: 816 CENTER ST ENOLA PA DATE OF BIRTH: 11/03/45 SSAN: 199349367 CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN -COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things alcove mentioned have been produced. [ ] NO DOCUMENTS AVAILABEE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX):- ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorize signature for CONSOLIDATED REHAB CO CUMBERLAND M310188-02 *** SIGN AND RETURN THIS PAGE *** COMMONWEALTH OE' PENNSYLVANIA COUNTY OF CUMBERIABID KOCH, ET AL Vs. File No. 015260 HENDERSON, ET AL . SUBPOENA TO PRODUCE DOCI~NTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 TO: PRISM, 175 LANCASTER BLVD BOX 2028, MECHANICSBURG PA 17055 Name of Person or Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE A at MEDICAL LEGAL REPRODIICTIONS(A~sS~940 DISSTON ST., PSILA., PA You may deliver or mail legible copies of the documents or produce things requested ~> this subpoena, together with the certificate of compliance, to the party making thi: request at the address listed above. You have the right to seek in advance the reasonable cost of preoaring the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty 1,20) days after its service, the party serving this subpoena may seek a court orde+• cxx~pelling you to crniply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: C ROY WEIDNER, ESQ ADDRESS: ..,,r,.T,m .,m LEMO ,7043-0109 TELEPHONE SUPREPE OOUFtT ID # 215-335-3212 ATTORNEY FOR: 19530 M310188-03 DEFENDANT DATE: ___~~ ~ °I -dt7 S al of the Court BY (/T~~HE COURT: l.iL(l (.Le Prothonotar~y^ k, Civil Division Yln ,4®s r _ ~ ~ -- ~ Deputy (Eff. 7/97) ADDENDUM TO S UBPOENA KOCH, ET AL Vs. ET AL CUSTODIAN OF RECORDS FOR: PRISM No. 015260 ENTIRE FILE REGARDING THE IME FOR CONSOLIDATED REHABILITATION COMPANY. PERTAINING TO: NAME: ROSE MARY KOCH ADDRESS: 816 CENTER ST ENOLA PA DATE OF BIRTH: 11/03/45 SSAN: 199349367 C~RTIII'IED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN. - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned Y!ave been produced. [ ] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Aut orized signature or PRISM CUMBERLAND M310188-03 *** SIGN AND RETURN THIS PAGE *** IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KOCH, ET AL Vs. HENDERSON, ET AL NO. 015260 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 C ROY WEIDNER, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s). Date: 08/20/04 "~'ia {.. C ROY WEIDNER, ESQUIRE 301 MARKET ST PO BOX 109 LEMOYNE, PA 17043-0109 717-761-4540 ATTORNEY FOR DEFENDANT INQIIIRIES SHOIILD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-3590 File #: M313270 By: Georgina Morrell ~f. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KOCH, ET AL Vs. HENDERSON, ET AL ~ No. 015260 TO: JOHN DOUGHERTY, ESQ (PLAINTIFF) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) 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. Date: 07/30/04 C ROY WEIDNER, ESQUIRE 301 MARKET ST PO BOX 109 LEMOYNE, PA 17043-0109 ATTORNEY FOR DEFENDANT INQIIIRIES S&OIILD BE ADDRSSSSD TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3590 By: Georgina Morrell Enc(s): Copy of subpoena(s) Counsel return card File #: M313270 _ . ,:-~ COlR39NWEAI.TH OF PENNSYLVANIA COUNTY OF CIR~LAAID KOCH, ET AL Vs. HENDERSON, ET AL File No. ni ~aFn SUBPOENA TO PRODUCE DOCUh~NTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: DR STEHEN SNOKE, 1800 CARLISLE RD, CAMP HILL PA 17011 of Person or Enti Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following doaments or things: __ SEE ATTACHED ADDENDUM at MEAICAL LEGAL REPRODIICTIONS(As~940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of ccrtpliance, to the party making thi: request at the address listed above. You have the right to seek in advance the rea.onable 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 thi:> subpoena rtray seek a court orde~• crnpelling you to carply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: f' RnV ~'.T1~NF.R . E$Q ADDRESS: - o TELEPHONE: LEMOYNE, PA 17043-0109 SUPREhE OOURT ID ATTORNEY FOR M313270-O1 215-335-3212 DEFENDANT DATE: `~`-~ Seal of the Court BY THE COllF2?: .l.l_Jl X l ~ ~ ~ liS--•-.. - lProthon/oltar~y-/Cllr CiviB Division _ ~I~.R ~ I a ~ J vt~J~-~-l peputy (Eff. 7/97) _. ADDENDUM TD SUBPOENA KOCH, ET AL Vs. No. 015260 HENDERSON, ET AL CUSTODIAN OF RECORDS FOR: DR STEHEN SNOKE ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: ROSE MARY KOCH ADDRESS: S16 CENTER ST ENOLA PA DF;TE OF BIRTH: 11/03/45 SSAN: 199349367 CERTIFIED PHOTOCOPIES WII,L $E ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN -COMPLETE AND RETURN ~ ] RECORDS ARE ATTACHEDHERETO: I hereby certify as custodian of records that, to the best o.f m~= knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and-that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING { ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Hate Authorized signature for DR STEHEN SNOKE CUMBERLAND M313270-01 * * * SIGN AND- RETURN THIS PAGE -Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 ROSE MARY KOCH and T. ALLEN KOCH, her husband, Plaintiffs v. GERALD HENDERSON and RUSSELL M. BIBLE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5260 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above captioned action settled and discontinued, including all counterclaims, crossclaims and joinders of additional parties. IRA H. WEINSTOCK, P.C. JOHNSON, DUFFIE, STEWART & WEIDNER B By: John B. ougherty 'Roy Weidner, Jr. DISCONTINUANCE CEITTIFICATE AND NOW, i/(.N~t) 1?~ ~~ suit has been marked as :238449 5774-389 ~~ CERTIFICATE OF SERVICE AND NOW, this ~ day of November, 2004, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: John B. Dougherty, Esquire 'Ira H. Weinstock, P.C. 800 North Second Street Harrisburg, PA 17102 JOHNSON, DUFFIE, STEWART & WEIDNER By: _i__~_~ /~ OHO „~ .~mg~~ bFtchelle H. Spangler :238449 5774-389 ... ~,. ~~~// / /,~17 C~ ~a C~ ~.~ c-. ~~ ~r: +~a ~i "{7 ".Y". Yr C? ~3 c°, -n :~ ~- --. ft3 ~- 1',,:i !..)'. ~. ~.'~ ~~a ~',r `_'r.; ,1 ;.