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Ill. PRINCIPLE ISSUES OF LIABILITY AND DAMAGES
It is anticipated that the Defendants will admit liability.
It is anticipated that the Defendants will concede that Mr. Fruciano is entitled
to compensatory damages and will try to minimize the extent of damages.
Plaintiff pled a claim for punitive damages. The Defendant filed preliminary
objections in an effort to dismiss the claim for punitive damages. This Court (The
Honorable Edgar B. Bayley) denied the Defendants' Preliminary Objections. Judge
Bayley's opinion denying the Defendants' Preliminary Objections
for Punitive Damages is attached as Exhibit "A".
A large, heavy tractor-trailer traveling at a high rate of speed is a dangerous
instrumentality that can cause serious injury or death, The manner in which
Defendant Blystone operated this tractor-trailer subjects the Defendant to punitive
damages. Punitive damages should be awarded because a driver of a tractor-trailer
traveling at a high rate of speed knows or has reason to know that his conduct may
create a high degree or risk of physical harm to another and deliberately proceeds to
act or fails to act in conscious disregard of or indifference to that risk. LolZUe v
Lo!!'ano Truckin!!' Co., 921 F. Supp. 1425, (E.D. Pa. 1996).
These allegations, Plaintiff insists, are sufficient to support
a claim for punitive damages. We agree. Plaintiffs
allegations are that Hasbrouck knowingly took a dangerous
vehicle on to a public highway and then operated that
vehicle in a dangerous manner, It is fair to infer from these
allegations that Hasbrouck knew, or had reason to know,
that his actions created a high degree of risk to Logue and
other travelers, but that he continued those actions in
3
Mr Fruciano. Interestingly, Defcndant Blystonc's driver's log was not in order and
his employer, Defendant W, C. MacQuaide, Inc. destroyed this evidence. A properly
maintained driver's log requircs a ccrtain amount of sleeping hours with driving
hours.
IV. SUMMARY OF LEGAL ISSUES REGARDING ADMISSIBILITY
None anticipated at this time,
V. POTENTIAL WITNESSES
1. Plaintiff - Frank Fruciano.
2. Defendant - Jeffrey A. Blystone, as on cross examination.
3, Anthony Bruno, M.D.
4, A.R.V. Kumar, M.D.
5. Other treating physicians and health care providers.
6. Witnesses listed by the Defendants,
7. Friend or family member of the Plaintiff to testify on damages.
8, Gary Lee Neff
9, Kurry Seymour
5
Exhibit A
FRANK FRUCIANO. JR..
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
JEFFREY ALAN BLYSTONE,
FOX AND JAMES WHITE
TRUCK COMPANY, tJd/b/a
F/J LEASING COMPANY and
W,C. MCQUAIDE, INC.,
DEFENDANTS
: 99-1917 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO
PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
ORDER OF COURT
AND NOW, this Lv day of December, 1999, IT IS ORDERED:
(1) Paragraph 17 of plaintiffs complaint, IS STRICKEN.
(2) Defendants' motion to dismiss plaintiffs claim for punitive damages; IS
DENIED.
-:?
By the Cour("': /-"
.' po"
/
I
Edgar B. Bayle~, J.
Andrew H. Dowling, Esquire
For Plaintiff
Brian G, Price, Esquire
For Defendants
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99.1917 CIVIL TERM
created a high degree of risk of physical harm to others, that he deliberately proceeded
to act in conscious disregard or indifference to that risk in crashing the tractor-trailer
through the guardrail and into oncoming traffic,
Defendants filed preliminary objections to plaintiffs complaint seeking to strike
paragraph 17 which sets forth that defendant, Jeffrey Alan Blystone, was cited for two
violations by the Pennsylvania State Police, and plaintiffs claim for punitive damages.
Defendant concedes that paragraph 17 must be stricken but maintains it has pleaded
sufficient facts in support of his claim for punitive damages,
We have filed two opinions on motions for summary judgment regarding claims
for punitive damages in cases in which tractor-trailers were involved in accidents. In
Regi v. PGT Trucking, Inc., 46 Cumberland L.J, 217 (1997), the facts were:
[G]erald D, Regi, was injured in an accident at approximately 8:00 a,m, on
a clear day on Interstate 81 in Middlesex Township, Cumberland County.
A tractor-trailer operated by defendant, Kenneth M. Greathouse, struck
the rear of a 28 foot trailer loaded with construction materials attached to
a pickup truck operated by plaintiff, The force of the collision pushed the
trailer and pickup truck approximately 100 feet from the position where the
tractor trailer came to rest. Greathouse and the trucking companies for
whom he was driving admit negligence. Defendants filed a motion for
partial summary judgment on plaintiffs claim for punitive damages.
(Footnote omitted,)
* . *
[p]laintiff in his deposition stated that he had slowed almost to a stop as
the van in front of him did the same, he saw defendant coming from
behind, and it did not appear as if he was going to stop, Defendantthen
struck his vehicle and pushed it into the van in front of plaintiff's vehicle.
In his deposition, defendant stated that he was aware that he was in a
construction zone, that nothing obscured his vision ahead, and that he did
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99-1917 CIVIL TERM
truck and there was an overhead beacon, There was a lighted road sign directly above
the state truck that extended over all three southbound lanes of the interstate. The
witness testified that he was behind the first trailer of defendant's vehicle but coming up
upon the front of the back trailer. He realized that he "[h]ad to get over into the left lane
so that the ABF driver could get over and get out of the way of the snowplow." While
about two-thirds of a mile from the snowplow, the witness moved his vehicle into the left
lane and flashed his lights so that the ABF driver would know that he "[h]ad cleared the
center lane and went into the left lane and that would give him an opportunity to be able
to get into the center lane." The snowplow was stopped facing southbound in the right
lane of the highway, The ABF driver continued in the right lane and hit the snowplow at
approximately fifty miles an hour. At that point the witness was approximately two truck
lengths ahead in the left lane and going about fifty-five miles per hour. He saw the
impact through his rearview mirror. His vehicle, the snowplow and the ABF tractor-
trailer were the only vehicles in the area when the accident occurred.
Defendant, Charles Tranum, testified at his deposition that on the day before the
accident he was on a two hour call-up from ABF. He stayed at his house and took
some naps until the call to work came at 5:00 p.m. He went in at 7:00 p,m, He left an
ABF terminal in Cumberland County at approximately 8:00 p,m. and drove to Scranton,
Pennsylvania, arriving at approximately 11 :00 p,m, On his way back from Scranton he
stopped for about fifteen minutes for a cup of coffee, At approximately 3:00 a,m, he
drove across the Interstate 81 bridge over the Susquehanna River between Dauphin
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99-1917 CIVIL TERM
A,2d 169 (1997). Plaintiff has pleaded facts sufficient to warrant the dismissal of
defendants' preliminary objection,
ORDER OF COURT
AND NOW, this
,oJ,..
day of December, 1999, IT IS ORDERED:
(1) Paragraph 17 of plaintiffs complaint, IS STRICKEN.
(2) Defendants' motion to dismiss plaintiffs claim for punitive damages, IS
DENIED.
Andrew H. Dowling, Esquire
For Plaintiff
Brian G. Price, Esquire
For Defendants
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FRANK FRUCIANO, JR.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO: 99-1917 CIVIL
JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, Vd/b/a F/J LEASING :
COMPANY and W. C. MCQUAIDE:
INC.,
Defendants
JURYT~DEMANDED
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document
upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage
prepaid, addressed as follows:
Brian G. Price, Esquire
Dougherty, Leventhal & Price, L.L.P.
459 Wyoming Avenue
Kingston, PA 18704
BY:
METTE, EVANS & WOODSIDE
----=- =:. .~
ANDREW H. DOWLING, ESQUIRE
Supreme Court I.D. No. 39692
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
Telephone: (717) 232.5000
Attorneys for Plaintiff
DATED: February 23, 2000
215105
7
FRANK FRUCIANO, JR.,
Plaintiff
IN TilE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
V5.
JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, lIdlb/a F/J LEASING
COMPANY Rnd W,C. MCQUAIDE
INC.,
JURY TRIAL DEMANDED
JUDGE EDGAR B. BAYLEY
NO. 99-1917
Defendants
PRE-TRIAL MEMORANDUM OF THE DEFENDANTS
I. STATEMENT OF THE FACTS AS TO LIABILITY
On August 8, 1997 at approximately 12:00 p,m" the Co-Defendant, Jeffrey Alan Blystone.
was driving an empty tractor trailer west on the Pennsylvania Turnpike as he returned from
Philadelphia. Jeffi"ey Alan Blystone was working for the Co-Defendant, W,C. McQuaide Inc. W.C.
McQuaide Inc. owned the trailer portion of the tractor trailer. W,C, McQuaide Inc, had leased the
tractor portion of the tractor trailer from the Co-Defendant, Fox and .lames, Inc, As Jeffrey Alan
Blystone approached mile marker 2391 of the Pennsylvania Turnpike, he moved from the right lane
into the passing lane, At this point and time, he noticed a sign which read, "merge right", Suddenly,
a small white car in front of him in the passing lane came to a complete stop instead of gradually
merging into the right lane, Jeffrey Alan Blystone could not move back into the right hand lane
because other tractor trailers were occupying that lane. Realizing that he might not have time to stop
prior to hitting the stopped white car in front of him, he attempted to expediate his stopping time by
rubbing up against the guardrail in the middle of the Pennsylvania Turnpike, Unfortunately, the
guardrail did not support Jeffi"ey Alan Blystone's tractor trailer and he crashed through the same into
the east bound lanes of the Pennsylvania Turnpike,
Upon entering the east bound lanes of the Pennsylvania Turnpike, Jeffrey Alan Blystone's
tractor trailer struck the rear driver's side of Frank Fruciano's 1995 Chevrolet Monte Carlo,
Unfortunately, the Defendants were never able to identifY the driver of the white car who
suddenly stopped in the west bound passing lane of the Pennsylvania Turnpike in front of Jeffrey Alan
Blystone, However, the Defendants can establish that the west bound passing lane of the
Pennsylvania Turnpike was closed in the area just ahead of where this accident took place per the
testimony of Jeffi"ey Alan Blystone, an eye witness to the accident, Mr, Gary Lee Neff, and materials
received from the Pennsylvania Turnpike Commission, (See Exhibit "A"),
II. STATEMENT OF THE FACTS AS TO DAMAGES
Fortunately, Frank Fruciano was not seriously injured after the motor vehicle accidcnt on
August 8, 1997, Witnesses at the scene of the accident will testifY that Frank Fruciano did not
complain of any injuries immediately bul was more concerned about damage to his car, Later. al the
Holy Spirit Hospital Emergency Room, Frank Fruciano complained oflow back pain, hip pain and
numbness into his left leg, The emergency room staff trealed and released Frank Fruciano to his
home that very day.
Eleven days later, Frdllk Fruciano reported 10 Dr, Kumar, Dr. Kumar found Frank Fruciano
to be in no acute distress, He diagnosed Frank Fruciano as suffering from a cervical and lumbar
sprain with a possible left scapular sprain. He also diagnosed a left knee problem but could not
correlate the cause of this left knee problem. A later MRI showed degenerative changes at the L3-4
level of Frank Fruciano's spinal column, The Court must note that Frank Fruciano was diagnosed
with degenerative disc disease and disc injury syndrome as far back of 1993, In fact, Frank Fruciano
underwent aC6-7 cervical distectomy on May 7.1993 on account of this pre-existing degenerative
disc problem in his back.
Dr. Kumar did prescribe physical therapy for Frank Fruciano at the Physical Therapy
Associates of Chambers burg, Frank Fruciano attended only four sessions between August 26, 1997
and September 22, 1997. On October 13, 1997, Frank Fruciano did have one steroid injection
administered into his lower back.
On October 7, 1997, Frank Fruciano reported to Dr, Bruno regarding alleged pain in his left
knee. Dr. Bruno noted that Frank Fruciano had seriously injured his left leg years ago in a motor
vehicle accident in Arizona. Dr, Bruno performed arthroscopic surgery upon Frank Fruciano's left
knee on December 31, 1997, The surgery revealed that Frank Fruciano's medial and lateral menisci
were benign, stable and had no tears or damages, By January 2, 1998, Frank Fruciano was walking
without crutches after the arthroscopic surgery, On this date, he had a full range of motion in his left
knee, Dr, Bruno did order some physical therapy for Frank Fruciano's left knee which he failed to
attend.
Overall, Frank Fruciano's medical records and treatment revealed that he was not seriously
injured after the motor vehicle accident on August 8, 1997, He was already suffering from
degenerative disc in his back. His alleged left knee problems were not substantiated by the
arthroscopic surgery, Hence, Frank Fruciano's damages are minimal. Any attempt to relate his
unfounded damages to any substantial wage loss or loss of future earning capacity claim is
incredulous,
2
Exhibit A
Exhibit B
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475 A.2d 837,327 Pi,Super, 357. Jahn v, O'Neill, (Pa,Super. 1984)
.837 475 A,2d 837
327 Pa,Super. 357
Marlaret JAHN. Appellant,
v.
Dennis J, O'NEILL and VIP Car Rental. Ino.
Superior Conn of Pennsylvania.
Argued March 7, 1984.
Filed May 11, 1984.
Automobile owner brousht action against
automobile lessee and lessor to recover (or damages
to her aUlomobile incurred in accident with
automobile operated by lessee, Lessor moved (or
summary judgment on basis that, as mailer o( law,
lessor of vehicle is nol liable for property damage
caused by its vehicle while driven by lessee, The
Conn of Common Pleas, Civil Division,
Monlgomery County, No, 81-16248, Brody, J.,
granted motion, and owner appealed. The Superior
Conn, No, 2188 Philadelphia 1982, Monlemuro, J"
held that No-Faull Motor Vehicle Insurance Act did
not impose liability on lessor of motor vehicle (or
property damage caused by lessee's negligent
operation of such vehicle.
Affirmed.
1. AUTOMOBILES <$;:0 184
48A --
48A V Injuries from Operation, or Use of
Hishway
48A V(A) Nature and Grounds of Liability
48Akl83 Persons Liable
48AkI84 In general,
Pa,Super, 1984.
To impose liability on person for injury resulting
from operation of motor vehicle, he must, except
where liability is otherwise imposed by statute,
either be in actual operation thereof or in control
thereof, or stand in relation of master or principal 10
person wbose act occasions injury.
2, AUTOMOBILES <$;:0 192(6)
48A --
48A V Injuries from Operation, or Use of
Highway
48A V(A) Nature and Grounds of Liability
48Akl83 Persons Liable
48Akl92 Owner's Liability for AclS of
Third Person in General
Pqe1
48AkI92(6) Borrower or hirer,
Pa,Super, 1984,
Lessor of motor vehicle is generally not liable for
negligence of lessee while operaling vehlcle;
however, lessor may be liable for lessor's own
negligenoe in leasing vehlole for use by person
whom Icssor had reason to know Is incompetenl,
3, STATUTES 0$;:>212,5
361
361 VI Construclion and Operation
361 VI(A) General Rules of Construction
361k212 Presumptions to Aid Construction
361k212.5 IDlention to change law.
Pa,Super, 1984,
Statutes are presumed not to make changes in rules
and principles of oommon law or prior exisling law
beyond whal is expressly declared in their
provisions.
4. AUTOMOBILES 0$;:>192(6)
48A ---
48A V Injuries from Operation, or Use of
Highway
48A V(A) Nature and Grounds of Liability
48Akl83 Persons Liable
48AkI92 Owner's Liability for AclS of
Third Person in General
48AkI92(6) Borrower or hirer,
Pa,Super, 1984,
Portion of no-fault law regarding property damage
provides only that every motor vehicle shall provide
property damage insurance covering his vehicle, in
amounl of $5,000, but does nol give rise to any
implicalion that stamte attempted to create liability
of owner for property damage caused by someone
operating vehicle with owner's permission; thus,
No-Faull Motor Vehicle Insurance Act did not
impose liability on lessor of molar vehicle for
property damage caused by lessee's negligent
operation of vehicle. 40 P,S. ~~ 1009,101 et seq.,
l009,104(a),
.838 [327 Pa.Super. 359] Barbara G. DeMarest,
Plymouth, for appellant.
Jay E. Minlzer, Philadelphia, for appellees,
Before ROWLEY,
JOHNSON, JJ.
MONTEMURO
MONTEMURO, Judge:
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and
475 A,2d 837,327 Pa,Super, 357, Jahn v, O'Neill, (Pa,Super. 1984)
ThIs matler b before the eoun on the appeal of
MUglrel Jahn from the lower coon'a arlOt of
summary judamenl in favor of VIP Cu Rental,
Inc" (hereinafter 'VIP'), appellee, Appellanl filcd
an action In trespaas agabut DeMis J, O'Neill and
VIP 10 recover for damages to her automobUe
Incurred In an accidenl with an aUlomoblle operated
by O'NeUl and owned by VIP, VIP Is an
automobile les.sor, and had leased the O'Neill
vehicle 10 him, VIP moved for summary judgment
on the baais thaI, aa a matter of law, a lessor of a
vehicle Is nol liable for propeny damage caused by
its vehicle while driven by a lessec, Following the
lower coun's order granting VIP summary
judgment, lIili appeal waa filed timely.
[I) (2) To impose liability on a person for an
injury resulling t'rom the operation of a motor
vehicle, 'he must, exCtpl where liability is olherwise
imposed by Slalute, either be in the aClUal operation
thereof or In lbe conlrol thereof, or Sland in the
relation of master or principal to lbe person whose
aCI occasions lbe injury.' 4 P,L,E. Automobiles
and Malar Vehicles ~ 281 (emphasis added), Thus,
lbe lessor of a motor vehicle Is generally not liable
for the negligence of a lessee while operating the
vehicle. Li"les v. Avis Renl-A-Car System, 433 Pa,
72, 248 A,2d g37 (1969); Turley v, KOller, 263
Pa.Super. 523, 39g A.2d 699 (1979); see also 4
P,L.E. AUlomobiles and Motor Vehicles ~ 2g2, A
lessor may be held liable, however, for lbe lessor's
own negligence in leasing the vehicle for use by a
person whom lbe lessor [327 Pa.Super, 360] has
reason to know is incompetent. Li"les, supra:
RESTATEMENT (SECOND) OF TORTS ~ 390
(1965) ,
Appellant does not contend lbat VIP should be held
liable for O'Neill's negligence under the doctrine of
respondear superior, or that VIP was liable under ~
390 of the Restalement of Tons for negligently
leasing the vehicle 10 O'NeUl. Instead, appellant's
theory is that the Pennsylvania No-Fault Motor
Vehicle Insurance Act (FNI) imposes liabUlty on a
lessor of a mOlor vehicle for propeny damage
caused by a lessee's negligent operation of such
vehicle,
Appellant relies on a provision of the No-fault Act
which states:
Every owner of a mOlor vehicle which is
registered or which is operated In lbis
Commonwealth by the owner or with his
permlssioD, shall continuously provide security
covering such motor vehicle.... Security shall be
provided ... for the payment of damages for injury
10 or deslnlctlon of propeny In anyone accldenl of
amounts up 10 a 10111llmil of five thousond dollars
($5,000).
.839 40 P,S. ~ 1009,I04(a), Appellant Dext
points outlbal while this propeny damage coverage
cannot be reached lhrough No-faull baaic loss
benefits, 40 P,S, ~ 1009.103 (defmltion of 'basic
loss benetits'), il is available for any required Ion
liabUlty, 40 P,S, ~ 1009,103 (defmllion of
'lnsurance'), (FN2) Then, in ascenalning the scope
of lbis ton liability, appellant construes 40 P.S, ~
l009,104(a) 10 statutorily creale liabUlty of an
owner of a vehicle, for propeny damage caused by
ODe who drives lbe vehicle with the owner's
penaission, Appellant concludes, lberefore, lbat
since O'NeUl as a lessee was driving lbe vehicle
wilb VIP's permission, VIP's required propeny
damage coverage is [327 Pa,Super. 361) available to
appellant if appellant can prove its claim against
O'Neill.
[3] Appellant's conslnlction of 40 P,S. ~
l009,104(a) is misconceived. First of all, statutes
are presumed nol to make changes In lbe rules and
principles of the commOD law or prior existing law
beyond what is expressly declared in their
provisions. Commonweallh v. Miller, 469 Pa, 24,
364 A.2d g86 (1976): Rahn v, Hess, 378 Pa, 264,
106 A.2d 461 (1954). There is certainJy no express
declaration in 40 P.S, ~ l009,104(a) lbat it is
creating ton liabUlty which previously did Dol exist,
and so we must presume lbat lbe statute does DOt
effect such a change. Indeed, appellant does DOl
assen lbat this new ton liabUlty is explicitly stated in
40 P,S. ~ l009,104(a), butlbat it must be implied to
give meaning to lbe requiremenl lbat an owner has
to provide propeny damage insurance for lbose
driving his vehicle wilb his permission.
[4] Even ignoring lbe presumption that a statute
does Dot change the law unless il does so expressly,
appellant's reasoning lbat such a change can be
implied t'rom 40 P.S, ~ l009.104(a) is errODeous, A
close reading of that statute reveals that, CODtrary to
appellant's belief, it does nol require an owner 10
insure against propeny damage caused by ODe
driving the vehicle wilb the owner's penaission.
The clause referring to operation by one wilb
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586 A.2d 416:402 Pa.Super, 101, Moran fo..ndonBehaJfofE~u.leofMoranv, G, &. W,H. COl'lOn, PIce 7
Inc" (Pa,Super. 1991)
lICCW'IIely meuures the lOnfellOr', obligation IhIn
dIIt whlcb ls agreed upon between the panies by
way of settlement. Such an wumption is without
foundltlon either In rea.lOn or experience, The..
is DO basls for concluding the jury verdict must
"rYe as a cap on thc lola! recovery thai a pJainllrr
may receive, The responsibilily of the settling
lOnfeasor ahould be fulally resolved by the terms
of the settlement,
Charlu v. GiDnl &Jgle Markets, supra at 477-78,
522 A.2d at 2.3.
(3J Appellant next argues that the rrial coun erred
In suiling the verdiclS aglimt appellees, G. &.
W,H, Corson, (402 Pa.Super. 113] PeM's Valley,
and Delaware lnsulalion for punilive damages. based
upon the ccun's conclusion thaI the compensatory
damage verdict against the appellees bad been
satisfied as a result of the pre-uial settlemenlS
discussed above. G & W,H, Corson, in its cross-
appeal, argues, inter alia, that the uial coun erred
in submitting the issue of punitive damages 10 the
jury since the evidence was clearly insufficienc to
suppon an award of punitive damages. Appellee
Corson also argues, in the alternative, that punitive
damages sbould nOI be imposed upon it in light of
the fact that the corporation had been dissolved by
the time of trial, .
The rule of punitive damages set forth in the
Restatement (Second) of Tons ~ 908 bas been
adopted in Pennsylvania. Martin v. Johns-Manvilk
Corp" 508 Pa. 154, 168-70, 494 A,2d 1088, 1096
(1985); Fold v. Merriam, 506 Pa. 383, 393-95, 485
A.2d 742, 747 (1984); Chambers v. Montgomery,
411 Pa. 339, 344-45, 192 A,2d 355, 358 (1963);
Neal v, Carey Canadiaiz Mines, Ltd., 548 F.Supp.
357.374 (E.D.Pa.1982).
Section 908 of the Restatement provides, inter
alia:
Punitive damages are damages .., awarded against
a person to punish him for his outrageous conduct
and to deler him and others like him from similar
conduct in the future.
Punitive damages may bc awarded for conduct that
is ouuageous, because of the defendanl's evil
motive or his reckless indifference to the rights of
others.
Restatement (Second) or Torts, f 908(1), (2),
Commenl (b) to Section 908 provides that:
(sJince the purpose or punitive damages ls not
compensation or the plaintiff but punishment of the
defendant and deterrence. Ihese damages can be
awardtd only for condJ<<1 for which tItls rt/llMy I.r
opproprialt-which I.r 10 say, condJJa involving
SOml! tlemlnJ of OU/rage .423 similar 10 IJuu
usually found in crimi!, The conduct must be
ouuageous, either because the derendant's aces are
done with an evil motive or because they are done
with reclcJess indifference lO the righes of others....
[402 Pa,Super. 114] Recldess indifference to the
righlS of others and conscious action in deliberate
disregard of them (S..: ~ SOO) may provide the
necessary state of mind 10 justify punitive
damages.... (emphasis suppliedJ
Section 500 of the Restalemenc (Second) of Tons
defmes 'reckless disregard" as follows:
The actor's conduct is in reckless disregard of the
safety of another if he does an act or inlentionally
fails to do an act which it is his duty to the other 10
do, knowing or baving reason to know of faclS
which would lead a reasonable man 10 realize nOI
only that bis conducl creates an unreasonable risk
of physical harm to another. but also that such risk
is substantially greater than that which is necessary
to make his conduct negligent.
Restatement (Second) of Tons ~ 500. The
comments to this section explain, inter alia, that in
order to be reckless, conduct
must be unreasonable; but to be recldess it must
be something more than negligent. It musI not
only be unreasonable, but it must involve a risk of
harm to others substantially in excess of that
necessary 10 make the conduct negligent. II musl
involve an easily perctplible danger of dealh or
subslanJial physical harm, and Ihe probability lhal
il will so resull musl bt subslantially grealer lhan
is requirtd for ordinary negligence.... [emphasis
supplied] .
The actor to be reckless must recognize that his
conducI involves a risk substantially grealer in
amount than that which is necessary 10 make his
conducI negligent, The difference between
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'86 A,2d 416; 402 Pa,Super, 101, Moran for and on Behalf of Estate of Moran v, 0, &< W.lf, Conon, 1'11< 8
lac" (pa,Super. 1991)
RCkJcu mIscoaduct aod condUCI involvi.a& only
IUCb a quanl\IID of risk as Is necessazy 10 male. II
IlCglil.DlIs a differeDCC in the degree of the rUk,
but lhls dItl'.reoce of degree Is 10 marked as to
amount substantially to a difrerencc In Idnd,
CODllllClllS (a) and W, \{cjtalClllcDl (Scl:ond) of
Toru f ~.
Thus, In Pclmsylvanla. . '[p]unltive damagcs will
be allowed for tor1.l committed wI1Ifu\\y,
maIl.lously, or so carelessly as to indicate wanton
disregard for the rights of the [402 Pa.Super. liS]
party injured." Neal v, Cmey CanIldian Minn,
LId" supra, 548 F.Supp, at 377. qutJting 71rompson
v. Swank, 317 Pa, 158, 159, 176 A. 21\, 21\
(1934).
Punitiv. damagcs must be based on conduCI which
is . 'malicious'. 'wanton'. 'reckless' I 'willful', or
'oppressiv.'..... [Chambers v. MOn/gomery, 411
Pa. 339, 344-345, 192 A.2d 355, 358 (1963) )
citing Hughes v. Babcock, 349 Pa. 475, 37 A.2d
551 (1944).
Further, one must look to 'the act its.lf log.th.r
with all the cireumstanccs.including the motive of
the wrongdoers and the relations between the
parti.s....' Cluzmbers v. Montgomery, supra. 411
Pa. al 345, 192 A.2d al 358, See also, Pillsburgh
Ouldoor Advertising Co. v. Virginia Manor
ApIl11mOllS, Inc., 436 Pa, 350, 260 A,2d 801
(1970).
The state of mind of the aclor is vital, The aCI, or
the failure to act, must be int.ntional, recld.ss or
malicious.
Fe/d v. Merriam, supra, 506 Pa, at 395, 485 A.2d
at 747-748.
G. & W.H. Corson. in challenging the jury's
award of $300,000 in punitive damag.s against it,
argu.s first that the evid.nce was insuffici.nt to
warrant submission of the issue to the jury, and
secondly, that in light of the trial court's ruling that
Nosroc was not a de faCIO or de jure corporat.
successor to Corson for purposes of the imposition
of punitive damages. punitive damages were
improperly ass.ss.d against Corson, which had be.n
dissolv.d.
We IlCCd llOl detcrmlnc whether punltlve damagca
may be uscucd Igainst a diuolvcd corporallon,
SU, e.g" Commonwealth v, wwlle, 382 Pa,Super,
356, 555 A.2d 218 (1989) aJ/o, denied, 524 PI,
595, '68 A,2d 1246 (1989); Buslneu Corporal ion
Law, Act of May 5, 1933, P,L, 364, an, I, U I el
seq.. as amended by the ACI of Jllly 20, 1968, P,L.
459, No, 216, f 49, IS P,S, f 1907, since the
evidencc presented by '414 appellant was
insufficl.nl to cstablish the outrageous conduct
neceswy to submit the iuue of punitive damages to
the jury,
[402 Pa,Super. 116] Appellant contends thai the
following evid.nce was sufficient to support an
award of punitive damage> againsl G, &< W.H,
Corson:
I. John Evans, a managing ag.nl of Corson
testified that he was aware prior to his r.tirem.nl
(probably as early as the mid 1960's bUI no laler
than 1969 or 1970) that asbeslos exposure was
hazardous and caused cancer,
2. The foregoing informalion was importanl
enough to Mr. Evans for him 10 diseuss it with on.
ofhis managers. a Mr. Hinks,
3. Mr, Evans admittcd that despite knowledge or
the hazards of asbestos exposur., Corson did not
provide ind.pend.nt warnings of such hazards to
its customers, either verbally or in writing.
4. The evidence was clear that had Mr. Evans
desired 10 provide such warnings, b. had the
means to do so.
5, Mr. Evans' argument that the warnings were
not provided because he was r.lying upon the
manufacturers to do so was rejected by the jury
and was entirely inconsistent with his obligation by
law under ~ 40 I and ~ 402A of th. Restatement.
(Brief of appellant at 18).
Contrary to the arguments of appellant. we arc
unable to fmd any suppon in thc record for the
assertion that officials or managerial employees of
G. & W,H. Corson were aware in the mid 60's that
exposure to asbestos fibers could resull in cancer.
John Evans, the vice'president of G. & W.H,
Corson, testified concerning the knowledge or
Cup)nglulCJ \VCSl Group 1999 Nu d,lim to urigiuJl U.S. GOVL wurks
...
9, The 1996 Volvo Conventional truck operated by Defendant Jeffrey Blystone, is
owned and registered by Defendant Fox and James Truck Company, Vd/b/a F/J Leasing
Company.
10.
The said 80,000 GVWR trailer, auached to the above identified truck, is owned
~
~
and registered by Defendant W. C. McQuaide. Inc.
.;
.
~
.
c.
COUNT I
~1
1
FRANK FRUCIANO. JR. V, JEFFREY ALAN BLYSTONE. FOX and JAMES WHITE
TRUCK COMPANY tIdlb/a F/J LEASING COMPANY and W. C. MCOUAIDE. INC.-
NEGLIGENCE
.:~
"
II. Paragraphs 1 - ] 0 are incorporated herein by reference,
12. At the aforesaid time and place, Plaintiff Frank Fruciano. Jr., was traveling
eastbound on the Pennsylvania Turnpike, SR0076.
13. At all times relevant hereto, Plaintiff Frank Fruciano, Jr., operated his vehicle on a
highway exercising reasonable care under the circumstances.
14, At the aforesaid time and place, Defendant Jeffrey Blystone, was traveling
westbound on the Pennsylvania Turnpike, SR0076,
3
15. At the aforesaid lime and place, Defendant Jeffrey Blystone negligently,
carelessly and recklessly left the westbound lane and travel of the Pennsylvania Turnpike erashed
through the guard rail dividing the eastbound and westbound Innes of travel and entered into the
eastbound lane of travel, and crashed his tractor/trailer into PlaintilT's vehicle,
16.
As a direct result of the aforesaid accident, PlaintitTsustained serious injuries as
hereinafter related,
17. Defendant JetTrey Blystone was cited by the Pennsylvania State Police, who
investigated this accident, for violation of75 Pa. C.S,A. Sec. 3361, Driving Vehicle at Safe
Speed and Pa. C,S,A. See, 4107 Unlawful Activities, (duty) log not current.
18. The aforesaid accident was directly and proximately caused by the negligence,
carelessness and recklessness of Defendant JetTrey Blystone as follows:
a. traveling too fast for conditions and in excess of posted speed limits;
b. operating his tractor/trailer in a careless, reckless, and negligent manner;
c. operating his tractor/trailer in violation of the rules of the road, the ordinances of
the laws of the Commonwealth of Pennsylvania, including but not limited to the
Motor Vehicle Code, 75 Pa. C.S.A. See, 3361 and Pa. C,S,A, Section 4107;
d. failing to have his tractor/trailer under proper control so as to maintain it in the
designated lane of travel;
e. failing to have his tractor/trailer under the proper control so as to prevent the
vehicle from striking the front of Plaintiff's motor vehicle;
f, failing to have his tractor/trailer under the proper control so as to stop said vehicle
within the assured clear distance ahead;
4
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ti
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,
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20, As u dir~'Ct result of the ulilresllid negligence, Plllinlifi' wus required to undergo
left knee surgery,
21. As u direct result of the IIfore~uid negligence, Pluintill'wllS hospitlllized and
required physical therapy and prescription medications for pain control.
22. As a direct result of the aforesaid negligence, Plaintiff was treated with lumbar
epidural injections and a peripheral nerve block at his left shoulder,
23. As a direct result of the aforesaid negligence, Plaintiff continues to suffer from
pain in his lower back, pain and numbness into the left leg and left-sided neck and shoulder pain.
WHEREFORE, Plaintiff demands judgment in his favor and against the Defendants in an
amount in excess of $35,000, plus costs and interest and other relief as the court deems just.
COUNT II
FRANK FRUCIANO. JR. V. JEFFREY ALAN BLYSTONE. FOX and JAMES WHITE
TRUCK COMPANY. tJdlb/a F/J LEASING COMPANY and W. C. MCOUAIDE.INC.-
PUNITIVE DAMAGES
24. Paragraphs 1 - 23 are incorporated herein by reference,
6
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7, The Plaintiff filed a brief in opposition to the moving Defendants' Preliminary
Objections on or about July 19, 1999.
8, The moving Defendants then waited for the Court to rule upon their pending
Preliminary Objections,
9, On July 30, 1999, counsel for the moving Defendants again wrote Plaintiffs' counsel
regarding the release of the Co-Defendant, Fox and James, Inc,
10. On August 18, 1999, counsel for the moving Defendants again wrote Plaintiff's
counsel regarding the release of the Co-Defendant, Fox and James, Inc, The moving Defendants
continued to wait on the Court's ruling regarding their pending Preliminary Objections and attempted
to have the Co-Defendant, Fox and James, Inc, released from this matter.
II, On August 19. 1999, Plaintiff's counsel wrote counsel for the moving Defendants and
denied the Defendants' request to release the Co-Defendant, Fox and James, Inc, Importantly, in this
correspondence, Plaintiffs counsel acknowledged that the pleadings in this matter are not yet closed
and that discovery still needs to proceed, (See Exhibit "A"),
12. Also, on August 19, 1999, the Plaintiff propounded a Request for Production of
Documents upon the moving Defendants, Thereafter, the moving Defendants proceeded to prepare
responses to the same,
13. Suddenly, on October 22, 1999, the Plaintiffs counsel wrote counsel for the moving
Defendants and advised that he desired to list this matter as ready for trial. (See Exhibit "B").
2
.
14, On October 26, 1999, the moving Defendants responded to the Plaintiff's Request for
Production of Documents,
15, On October 28, 1999, counsel for the moving Defendants wrote to Plaintiff's counsel
and fonnally objected to his listing this matter as ready for trial, Counsel for the moving Defendants
indicated that he was still waiting for the Court to rule upon the Defendants' pending Preliminary
Objections and explained to Plaintiff's counsel the discovery which he intended to conduct in this
matter, (See Exhibit "C").
16. On October 29, 1999, Plaintiff's counsel acknowledged the moving Defendants'
formal objection to listing this matter as ready for trial. Notwithstanding the moving Defendants'
fonna! objection, Plaintiff's counsel noted that he would proceed to list this matter as ready for trial.
(See Exhibit "0"),
17. On this same day, the moving Defendants propounded written Interrogatories and a
Request for Production of Documents upon the Plaintiff.
18, On November 3, ]999, the Plaintiff responded to the moving Defendants' Request for
Production of Documents,
19. On November 4, 1999 the Plaintiff requested oral argument regarding the
Defendants' pending Preliminary Objections,
20. Also on November 4, 1999. the Plaintiff objected to all of the moving Defendants'
written Interrogatories pursuant to local Rule of Civil Procedure 4005-1.
3
21. On November II, 1999, the PlaintifTunilaterally scheduled the deposition for use at
trial of Dr. Anthony Bruno for January 25, 2000 without even consulting counsel for the moving
Defendants' schedule,
22, On November 15, 1999, counsel for the moving Defendants wrote to Plaintitl's
counsel and renewed his objection to listing this mailer as ready for trial, Counsel for the moving
Defendants directed Plaintitl's counsel to local Rule of Civil Procedure 213-2 which indicates that
all counsel must confirm at the call of the list (here 1/4/00) that all discovery has been completed,
Moreover. in this same correspondence, counsel for the moving Defendants formally objected to the
Plaintitl's deposition for use at trial of Dr. Bruno and explained his reasoning, Lastly. counsel for the
moving Defendants forewamed Plaintitl's counsel of this current Motion for a Protective Order,
(See Exhibit "E"),
23, On November 19, 1999, Plaintitl's counsel responded to the moving Defendants
renewed objection to listing this matter as ready for trial and to their objection regarding Dr. Bruno's
deposition for use at trial. Again, notwithstanding coun5el for the moving Defendants' formal
objections, Plaintitl's counsel indicated that he was going to proceed in a fashion which he deemed
appropriate. (See Exhibit "F").
24. Also on November 19, 1999, the moving Defendants propounded supplemental
written Interrogatories upon the Plaintiff.
25. Importantly, on December 1,1999, the Plaintiff propounded a second set of Requests
for Production of Documents upon the moving Defendants.
4
26, On Decembcr 8, 1999. the Plaintiff respondcd to the moving Defendants'
supplemental Interrogatories In his reply, the PlaintiO' acknowledged that he seriously injured the
same leg for which he is now claiming damages in a previous motor vehicle accident in Arizona
twenty (20) years ago, However. the Plaintiff could not recall the specifics of that medical treatment.
Obviously, counsel for the moving Defendants and the Defendants' IME doctor desire to investigate
this previous motor vehicle accident and the Plaintiff's subsequent treatment. (See Exhibit "G").
27. On December 8, 1999. this Honorable Court heard oral argument from both sides
regarding the moving Defendants' Preliminary Objections to the Plaintiff's Complaint.
28, On December 10, 1999, the Honorable Edgar B, Bayley ruled upon the moving
Defendants' Preliminary Objections. In his Opinion, Judge Bayley stated that the issue of punitive
damages may be revisited in a future motion for summary judgment after a proper record is
constructed.
29, On December 13, 1999, Plaintitrs counsel once again, without contacting counsel for
the moving Defendants, unilaterally scheduled the deposition for use at tria! of Dr, VA Kumar for
January 24, 2000,
30. Also on December 13, 1999, notwithstanding counsel for the moving Defendants'
fonna! written objections, Plaintiff's counsel filed a Praecipe for listing this matter as ready for trial.
31. On December ] 6, 1999, Plaintiff's counsel deposed Mr. Jeffrey Blystone and a
representative ofW,C, McQuaide Inc,
5
32, Currently, the moving Defendants are in the process of answering the Plaintiff's
Complaint in accordance with Judge Bayley's latest Order,
33, Currently. the moving Defendants are in the process of responding to the Plaintiff's
supplement Requests for Production of Documents,
34. Currently. the moving Defendants are in the process of formally collecting the
Plaintiff's past medical documentation pursuant to the Plaintiff's reply to the moving Defendants'
supplemental written Interrogatories,
35, Currently, the moving Defendants have scheduled the Plaintiffs deposition for
December 28, 1999,
36, Currently, the moving Defendants are in the process of scheduling the depositions of
the fact witnesses who were noted in the Plaintiff s reply to the moving Defendants' supplemental
written Interrogatories,
37. Currently, the moving Defendants are arranging an IME of the Plaintiff to be
conducted by Dr. Michael Kraynick of Allentown in the beginning of the year 2000 pursuant to the
doctor's availability. Naturally, the moving Defendants desire Dr, Kraynick to review the Plaintiffs
deposition transcript and all of his prior medical records regarding his past accidents before rendering
an expert opinion,
38. The moving Defendants desire to collect all of the Plaintiffs prior medical
documentation regarding his past injuries before having to cross-examine the Plaintiff s treating
physicians,
6
39. The moving Defendants desire to have the Plaintiff examined by Dr. Kraynick prior
to having to cross-examine the Plainlil1's treating physicians.
40. Pursuant to local Rule of Civil Procedure 2 \3-2, the moving Defendants pray that the
Court strike this matter for the January 31, 2000 trial list in lieu of counsel for the moving Defendants
having to travel to the call of the list on January 4,2000 in order 10 present the same arguments set
forth in this current Motion for Protective Order.
41. Pursuant to Pa. R.C.P. 4012, the moving Defendants pray that the Court stay the
Plaintil1' s depositions for use at trial of Dr. Bruno and Dr. Kumar until the discovery in this matter
is closed and the case is properly listed for trial.
42. Pursuant to the moving Defendants' forewarning ofthis pending Motion for Protective
Order to the Plaintiff on November IS, 1999, the moving Defendants seek an Order granting
attorney's fees and costs related to the filing of the within Motion.
WHEREFORE, the moving Defendants pray that the Court grant their Motion for Protective
Order.
RESPECTFULLY SUBMITTED,
DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
&.~'C (~
BRIAN G. PRICE, ESQUIRE
Attorneys for moving Defendants
459 Wyoming Avenue
Kingston, PA 18704
(570) 288-1427
7
t~:'
NO. 99-1917
.
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Plaintiff
IN TilE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
FRANK FRUCIANO, JR"
VS.
CIVIL ACTION. LAW
JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, tldlb/a F/J LEASING
COMPANY and W.C. MCQUAIDE
INC.,
JURY TRIAL DEMANDED
JUDGE EDGAR B, BAYLEY
Defendants
CERTlFlCA TE OF SERVICE
I, BRIAN G. PRICE, ESQUIRE, hereby certifY that I have served a true and correct copy
of RULE TO SHOW CAUSE, ORDER, DEFENDANTS' MOTION FOR PROTECTIVE ORDER
and supporting BRIEF by depositing the same in the U.S. Mail, First Class, Postage Prepaid, this
'J./ ~dayof ~
, 1999, and addressed as follows:
Andrew H. Dowling, Esq.
340 I North Front Street
Harrisburg, P A 170 II
DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
BY: ~, r; 17..'. ,
BRIAN G. PRICE, ESQUIRE
Exhibit A
Exhibit B
Exhibit C
'" ......... ,. ".. ..... (i)
Exhibit 0
OCT-29-1999 FRI 03:08 PM METTE EVANS & UOODSIDE
FAX NO, 7172361616
p, u<!/u<!
MHT'J'Ill, laVAN''' ,. WOOUH.JJlHl
A )l'Nflr!(,t4HIOI'fAL OOlU'l)ftAT'OH
ATTORNEYIf AT LAW
UUlu:rIUO\LI
I' I7lIJ IoUIK
unt NORT" rROl\l'r If"I1ll'Jrr
r.o. nox ft,t\o
nAw)CJUltu.a, rA S7.11(HJO~O
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'J',n,KPHO"K YMe
f7171MdUuoo 17J'I~1I0.UJd
hnp:/lwvNt.tnetl4l.COt1\
October 29, 1999
V ~_.~^PSIMILE . 570-288.0799
Brinn G. Price, Esquire
Dougherty, Levent.hal & Price, L.L.P.
4r;O Wyoming Avenue
Kingston, PA 18704
RE: FllANK FRUCIANO v JEFFREY ALAN BLYSTONE, I?OX and
JAMES WHITE TRUCK COMPANY, t/d/b/a F/J LEASING
COMPANY and W.C. MCQUAIDE, INC.
Civil Action No. 99.1917 (Cumberland C01mty, PM
Del'll' Brinn:
'l'hflnk you for your letter of October 28,1999. 'fhe Court's pending decision
on tho DoCendant's Preliminary Objections docs not prevent you from propounding
c1iscovoty, subpoellnlng any medicnl records you desire, taking the deposition or the
PJnlntift' und having the PlainWTexllmined by n defense medical doctor, This is l1
simple case and discovery mntters should easily be concluded by the January trial
term. I do intend to list this ellse for trial as stated in my Jolter of October 22, 1999.
Plenso ho guided accordingly.
Vary truly your~.
~- -
~~~~. -~
AnO/emh
Andrew H. Dowling
cc: 1"rl1nk Frucillno
exhibit E
November 15,1999
Andrew H. Dowling, Esq.
3401 North Front Street
Harrisburg, P A 170 I I
RE: Fruciano v. McQuade
Our File No. 4010-366
No. 99-19 I 7-Civil
Claim No. AB 303068802-02
Dear Andrew:
I write in reply to your latest actions in the above matter. Initially, I respond to your
correspondence of October 29,1999 wherein you noted that you were going to list this matter as
ready for trial in January of2000; notwithstanding my previous objection. As you are aware, the Call
of the List for the January 31,2000 Trial List will be held on January 4,2000. Pursuant to Local
Rule 213-2, counsel for all parties must indicate at the Call of the List that all discovery has been
completed. In the case at hand, discovery will not be finished by January 4, 2000. First, you objected
to my previously propounded written Interrogatories. Hence, I was forced to draft new written
Interrogatories which I will be propounding upon the Plaintiff in the near future. Secondly, once I
receive and review the PlaintiWs replies to these written Interrogatories, I will have to schedule his
deposition. Third, your client has been involved in numerous previous accidents. Obviously, I will
need sufficient time to properly subpoena all of the medical and factual documentation surrounding
these prior accidents. Lastly, I desire to forward all of the PlaintiWs previous medical documentation
and deposition on to my expert medical witness so that he can properly evaluate the Plaintiffs current
claims. Hence, as you can see, discovery will certainly not be closed by January 4, 2000. I renew
my objection to you listing this matter as ready for trial for the January 2000 trial term. If you insist
on listing this matter, I will seek Attorneys' fees for any actions I must undertake in reply to your
listing.
Next, I formally object to your deposition for use at trial of Dr. Bruno currently scheduled
for January 25, 2000. As noted above, I need time to receive the PlaintiWs answers to my new
written Interrogatories, to depose the Plaintiff, to subpoena the appropriate medical and factual
.' '\'. ." ,
., . ,
. .
. .
. .
Exhibit F
. NOV-19:1999 FRI 04:03 PM METTE EVANS & UOOOSIDE
FAX NO, 7172361816
p, 03
Novcmber 19, 1999
Pnge2
By way of baclq,'1'ound, by cover letter dated J.'cllnlal'y J 2, 19D9 I provided tho
c!cfondl\nt's insuranco earrior wJth extonsivo medicnll'ecorc!s nnd doellmcnt.'l on Ollr
clnlO1. A Complaint WS61i1cd June 4, 1999 and you entercd YOul' nppollranco
thorcnftcr, Therll wos noUling preventing yoU from Ilubpoenning I11cdicalrccul'US at
tlwt timo line! thero is nothing permitting you f'rolllllllhpounain/j tham at this time, If
YOll provide me with copies oCthe subpoenas YOll intend to scrve, 1 wHI wnivc tho 20
day notko I'cquirement. I do not think subpoenning IlIcdlcull'ccords Is goinr: to
provido you with nny new infOI"matlon that the Insurance corrior for tho dofondsnts
did not have back In Februllry, 1999, Nonetheless, YOll are cntitled to ~ubpoonn
mecHcal reeordflllnd I will assist you in expediting YOUl' obtalniug those meclical
records.
YOll filed n Requost for Production of Documents hy cover lettor dated
Octobcr 29, 1999 to which the Plaintiff responded to the reqlll.'lst promptly 011
Novelllbel' 8, 1999. 'I'he intorrogatories you liIed on Octohor 29, ] 999 violnted local
rulus to which we promptly objected on November 4, 10f19. To date, YOII have not
rcsel'vod tho proper nUl1lbor ofinterrogatories. To c."pedlte matters, simply send me
n letter lndienting which of the interrogatories you served you would like answered,
and fiR long as they don't exceed 40 in number, I will sce thllt they lIre 11romptly
Ilnswel.cd. As 1 did in my response to your Request for Production ofDoCllmOJlts,
many of tho answers to interrogatories will reference tho extensive dOclllllentntioIl I
provided the hlsurnnee carrier back in February, W99,
There is nothing preventing you from Scheduling /l c1efenSlllllodiclll OlCam at
this time for E'arly January and II videotape deposition of your Inedicnl expert for later
in.Jnllllary. '1'11ol.e is nothing preventing you from SCheduling the llepositioll of tho
plnillticrCOI' sometime in Deccmber. Scheduling these 11I11tters now will expedite
l1Iatt!ll's pellding YOllr receipt of additional infornlation you foci you need.
I do not believe yoU can dolay In pursuing discoVCIY and then w}len the cose is
listed Cor trial clulm that discovelY is not complete. I believll I ha vo given you
Exhibit G
.
. .
16. Please list the names and addresses of all of the physicians and/or medical
facilities which treated you subsequent to your injury noted in interrogatory
number 15.
Plaintiff does not recnll the details of his medical treatment,
17. Describe in detail your prior accident which resulted in the reconstruction of your
arm.
See Answer to No, IS, supra,
18. Please list the names and addresses of all of the physicians and/or medical
facilities which treated you subsequent to your injury noted in interrogatory
number 17.
See Answer to No. 16, supra,
. .' .
FRANK FRUCIANO, JR.,
Plain tilT
IN TilE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
VS.
JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, tldlb/a F/J LEASING
COMPANY and W.C. MCQUAIDE
INC.,
JURY TRIAL DEMANDED
NO, 99-1917
Defendants
BRIEF IN SUPPORT OF THE DEFENDANTS'
MOTION FOR A PROTECTIVE ORDER
I. SUMMARY STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
The motor vehicle accident at issue took place on August 8, 1997. The Plaintiff, Frank
Fruciano, Jr., waited one (I) year and ten (10) months to file a Complaint in the Court of Common
Pleas of Cumberland County on June 4, 1999.
Defense counsel entered his appearance on June 9, 1999. On July 2. 1999, the moving
Defendants filed Preliminary Objections to the Plainti!r s Complaint. Considering the fact that the
moving Defendants did not desire oral argument pertaining to their Preliminary Objections, but
wished to submit the same on briefs alone, the moving Defendants did not file a Praecipe for
Argument.
On July 13,1999, counsel for the moving Defendants wrote to Plainti!rs counsel regarding
the release of the Co-Defendant, Fox and James, Inc., as a named Co-Defendant. On July 19, 1999,
the Plaintiff filed a brief in opposition to the moving Defendants' Preliminary Objections. The moving
Defendants then waited for the Court to rule upon their pending Preliminary Objections. On July 30,
1999, counsel for the moving Defendants again wrote Plaintiffs' counsel regarding the release of the
Co-Defendant, Fox and James, Inc. Again, on August 18, 1999, counsel for the moving Defendants
wrote Plaintil1's counsel regarding the release of the Co-Defendant, Fox and James, Inc. The moving
Defendants continued to wait on the Court's ruling regarding their pending Preliminary Objections
and attempted to have the Co-Defendant, Fox and James, Inc. released from this mailer.
On August 19, J 999, Plaintilrs counsel wrote counsel for the moving Defendants and denied
the Defendants' request to release the Co-Defendant, Fox and James, Inc. Importantly, in this
correspondence, Plaintilrs counsel acknowledged that the pleadings in this matter were not yet closed
and that discovery still needs to proceed. Also, on August 19, 1999, the Plaintilr propounded a
Request for Production of Documents upon the moving Defendants. Thereafter, the moving
Defendants proceeded to prepare responses to the same.
Suddenly, without warning, on October 22, 1999, the Plaintilrs counsel wrote counsel for
the moving Defendants and advised that he desired to list this matter as ready for trial. On October
26,1999, the moving Defendants responded to the Plaintiff's Request for Production of Documents.
On October 28, 1999, counsel for the moving Defendants wrote to Plaintilrs counsel and formally
objected to his listing this matter as ready for trial. Counsel for the moving Defendants indicated that
he was still waiting for the Court to rule upon the Defendants' pending Preliminary Objections and
explained to Plaintiff's counsel the discovery which he intended to conduct in this matter.
On October 29, 1999, Plaintilrs counsel acknowledged the moving Defendants' formal
objection to listing this matter as ready for trial. Notwithstanding the moving Defendants' formal
2
objection, Plaintiffs counsel noted that he would proceed to list this matter as ready for trial. On this
same day, the moving Dcfendants propoundcd wrillcn Illlerrogatorics and a Requcst for Production
of Documents upon the Plaintiff.
On November 3, 1999, the Plaintiff responded to the moving Defendants' Request for
Production of Documents. On November 4, 1999 the PlaintifT requested oral argument regarding
the Defendants' pending Preliminary Objections. Also on November 4, 1999, the PlaintitTobjected
to all of the moving Defcndants' written Interrogatorics pursuant to local Rule of Civil Procedure
4005-1.
On November II, 1999, the PlaintitTunilalerally scheduled the deposition for use at trial of
Dr. Anthony Bruno for January 25, 2000 without even consulting counsel for the moving
Defendants' schedule. On November 15, 1999, counsel for the moving Defendants wrote to
Plaintiffs counsel and renewed his objection to listing this matter as ready for trial. Counsel for the
moving Defendants directed Plaintiffs counsel to local Rule of Civil Procedure 213-2 which indicates
that all counsel must confirm at the call of the list (here 1/4/00) that all discovery has been completed.
Moreover, in this same correspondence, counsel for the moving Defendants formally objected to the
Plaintiffs deposition for use at trial of Dr. Bruno and explained his reasoning. Lastly, counsel for the
moving Defendants forewarned Plaintiff's counsel of this current Motion for Protective Order.
On November 19, 1999, Plaintiff's counsel responded to the moving Defendants renewed
objection to listing this matter as ready for trial and to their objection regarding Dr. Bruno's
deposition for use at trial. Again, notwithstanding counsel for the moving Defendants' formal
3
objections, Plaintil1's counsel indicated that he was going to proceed in a fashion which he deemed
appropriate. Also on November 19, 1999,lhe moving Defendants propounded supplemental written
Interrogatories upon the Plaintiff.
Importantly, on December I, 1999, the Plaintiff propounded a second set of Requests for
Production of Documents upon the moving Defendarts.
On December 8, 1999, the Plaintiff responded to the moving Defendants' supplemental
Interrogatories. In his reply, the Plaintiff acknowledged that he seriously injured the same leg for
which he is now claiming damages in a previous motor vehicle accident in Arizona twenty (20) years
ago. However, the Plaintiff could not recall the specifics of that medical treatment. Obviously,
counsel for the moving Defendants and the Defendants' IME doctor desire to investigate this
previous motor vehicle accident and the Plaintiff's subsequent treatment.
Also on December 8, 1999, this Honorable Court heard oral argument from both sides
regarding the moving Defendants' Preliminary Objections to the Plaintiff's Complaint. On December
10, 1999, the Honorable Edgar B. Bayley ruled upon the moving Defendants' Preliminary Objections.
In his Opinion, Judge Bayley stated that the issue of punitive damages may be revisited in a future
motion for summary judgment after a proper record had been constructed.
On December 13, 1999, Plaintiff's counsel once again, without contacting counsel for the
moving Defendants, unilaterally scheduled the deposition for use at trial of Dr. VA Kumar for
January 24,2000. Also on December 13, 1999, notwithstanding counsel for the moving Defendants'
formal written objections. Plaintiff's counsel filed a Praecipe for listing this matter as ready for trial.
4
On December 16, 1999, Plaintil1's counsel deposed Mr. Jeffrey Blystone and a representative
ofW.C. McQuaide Inc.
Currently, the moving Defendants are in the proces~ of answering the Plaintiff's Complaint
in accordance with Judge Bayley's latest Order. The moving Defendants are in the process of
responding to the Plaintiff's supplement Requests for Production of Documents. The moving
Defendants are in the process of formally collecting the Plaintil1' s past medical documentation
pursuant to the Plaintiff's reply to the moving Defendants' supplemental written Interrogatories.
The moving Defendants have scheduled the Plaintiff's deposition for December 28, 1999. The
moving Defendants are in the process of scheduling the depositions of the fact witnesses who were
noted in the Plaintil1's reply to the moving Defendants' supplemental written Interrogatories. The
moving Defendants are arranging an IME of the Plaintiff to be conducted by Dr. Michael Kraynick
of Allentown in the beginning of the year 2000 pursuant to the doctor's availability. Naturally, the
moving Defendants desire Dr. Kraynick to review the Plaintiff's deposition transcript and all of his
prior medical records regarding his past accidents before rendering an expert opinion. Furthermore,
the moving Defendants desire to collect all of the Plaintiff's prior medical documentation regarding
his past injuries before having to cross-examine the Plaintiff's treating physicians. Moreover, the
moving Defendants desire to have the Plaintiff examined by Dr. Kraynick prior to having to cross-
examine the Plaintiff's treating physicians.
Presently, the moving Defendants have filed with within Motion for Protective Order. The
moving Defendants pray that the Court strike this matter for the January 3 I, 2000 trial list in lieu of
5
counsel for the moving Defendants having to travel to the call of the list on January 4, 2000 in order
to present the same arguments set forth in this current Motion for Protective Order. Secondly, the
moving Defendants pray that the COUi1 stay the Plaintil1's depositions for use at trial of Dr. Bruno
and Dr. Kumar until the discovery in this matter is closed and the case is properly listed for trial.
Lastly, pursuant to the moving Defendants' forewarning of this pending Motion for Protective Order
to the Plaintilron November 15, 1999, the moving Defendants seek an Order granting attorney's fees
and costs related to the filing of the within Motion.
II, ISSUES
J. Whether the Court should strike this matter from the January 31, 2000 trial list?
Suggested answer = yes.
2. Whether the Court should stay the depositions for use at trail of Dr. Bruno and Dr.
Kumar until all discovery is closed and the case is properly listed for trial?
Suggested answer = yes.
3. Whether the Court should impose costs and attorney's fees upon the Plaintilrrelated
to the filing of the within Motion?
Suggested answer = yes.
III. LA W AND ARGUMENT
A. MOTION TO STRIKE CASE FROM THE JANUARY 31 2000 TRIAL LIST
The Court should strike this matter from the January 31, 2000 trial list because significant
discovery needs to be accomplished in this matter. Local Rule of Civil Procedure 213-2 provides that
6
all parties must indicate at the call of the list (here 1/4/00) that all discovery has becn completed. In
the case at hand, it is c1car that all the discovcry in this mattcr will not be completed by January 4,
2000. Secondly, the moving Defendants necd 10 be afforded an opportunity to file a motion for
summary judgment revisiting the punitive damage issue once a record is properly constructed. With
these facts in mind, the moving Defendants pray that the Court strike this matter from the January,
2000 trial list in lieu of counsel for the moving Defendants having to travel to the January 4, 2000 call
of the list in order to prescnt the same arguments enunciated in this pending Motion for a Protective
Order.
WHEREFORE, the moving Defendants pray that the Court strike this matter from the January
3 I, 2000 trial list.
B. STAY OF DR BRUNO'S AND DR KUMAR'S DEPOSmONS FOR USE AT TRIAL
The Court should stay Dr. Bruno's and Dr. Kumar's depositions for use at trial because the
moving Defendants will not have sufficient time to collect all of the information needed to properly
cross-examine the Plaintiffs treating physicians.
The Trial Court is in the best position to weigh fairly the competing needs and interests of
parties affected by discovery. Stenger v. Lehigh Valley Hospital Center, 554 A,2d 954, 960
(Pa.Super. 1989 qnoting Seattle Times, 467 U.S, at 33). The unique character of the discovery
process requires that the Trial Court have substantial latitude to fashion to protective orders. !lI.
Pennsylvania Rule of Civil Procedure 40 I 2 entitled "Protective Orders" reads as follows:
7
Rulr 4012. Protrctlvr Ordrn,
(a) Upon motion by a party or by thc person from whom
discovcry or dcposition is sought, and for good cause shown, thc
court may make any ordcr which justice requires to protect a party or
person from unreasonable annoyance, embarrassment, oppression,
burden or expense, including one or more of the following:
(I) That the discovery or depositions shall be prohib-
ited;
Prnnsylv8nia Rule of Civil Procedure 4012(a)(I)
In the case at hand, the moving Defendants are not requesting that the Court prohibit the
Plaintiffs depositions for use at trial of his treating physicians but that the Court only postpone the
same so that the moving Defendants can properly prepare cross-examinations of the Plaintiffs
treating physicians. The moving Defendants learned through the Plaintiffs reply to written
Interrogatories that he was involved in a serious motor vehicle accident in Arizona in 1985. In this
accident, the Plaintiffs left leg had to be reconstructed. Naturally, the moving Defendants desire to
learn more about this past accident as the Plaintiff is currently alleging that the motor vehicle accident
at issue caused his present left knee problems. In his reply to the moving Defendants' supplemental
written Interrogatories, the Plaintiff stated that he has no recollection of his medical treatment
following the Arizona motor vehicle accident. Counsel for the moving Defendants will depose the
Plaintiff on December 28, 1999. Naturally, this past motor vehicle accident will be a hot topic of
questioning. The moving Defendants need time to investigate this past accident in order to properly
prepare a cross-examination of the Plaintiffs treating physicians.
Moreover, the moving Defendants are in the process of scheduling an lME of the Plaintiff
with Dr. Michael Kraynick. The scheduling of this IME depends greatly upon Dr. Kraynick's
8
availability in the beginning of the year 2000. Thc moving Dcfendants desirc Dr. Kraynick to have
all of the Plaintil1's prior medical records at his disposal hefore he renders an opinion regarding thc
Plaintiff. Secondly, counsel for thc moving Defendants desires to undcrstand Dr. Kraynick's future
opinion before he is forced to cross-examine the Plaintil1's trezting physicians for IIse at trial.
In short, the moving Defendants are not opposed to moving this mailer along in an
appropriate manner. However, the moving Defendants will be highly prejudiced if they are forced
to try this matter without an opinion from their own expert medical witness. Secondly, the moving
Defendants will be highly prejudiced if they are forced to cross-examine the Plaintiff's treating
physicians without having the opportunity to properly collect all of the Plaintiff's previous medical
documentation. Third, the moving Defendants will be highly prejudiced if their own independent
medical examiner does not have the opportunity to review all of the Plaintiff's previous medical
documentation. Fourth, the moving Dcfendants will be highly prejudiced if they are forced to cross-
examine the Plaintiff's treating physicians without the aid of their medical expert's future opinion.
WHEREFORE, the moving Defendants pray that the Court grant their Motion for a
Protective Order and stay the depositions of Dr. Bruno and Dr. Kumar until the discovery in this
matter is closed and the case is properly listed for trial. I
I The Court should also be aware that the Plaintiff has unilaterally rescheduled Dr. Bruno's
deposition for use at trial for January 27, 2000. Counsel for the moving Defendants advised
Plaintiff's counsel that he already has an arbitration scheduled in Luzerne County for this date which
has had to be rescheduled three (3) times in the past. Counsel for the moving Defendants specifically
advised Plaintiff's counsel that he is not available on Thursday, January 27, 2000. Notwithstanding
this scheduling conflict, Plaintiff s counsel advised counsel for the moving Defendants that he
intended to depose Dr. Bruno on this date. Other than the obvious lack of professional courtesy and
cooperation, this latest procedural maneuvering evidences the Plaintiff's counsel attitude towards the
9
.,.
WHIT 01" SUMMONS
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE NOTIFIED THAT THE ABOVE.NAMED PLAINTIFF HAS
COMMENCED AN ACTION AGAINST YOU, YOU WILL BE REQUIRED TO
DEFEND OR DEFAULT JUDGMENT MAY BE El'.'TERED,
Prothonotary
Date:
By
Deputy
98180 1
..
Commonwealth of Pennsylvania
County of Cumberland
Frank A. Fruciano, Jr.
Court of Common Pleas
VI.
Jeffrey Alan Blystone, Fox
and James White TnIck
Company, t/d/b/a F/J Leasing
Company and W.C. McQ.Jaide,
Inc.
No. ____J_~:!J_J,L~j..x~L_n____________ 19____
In ___ __ ~i.~g_Aq!;j.9_l! -=nl.:.~?!_________________
To n..1.eff~_lIJ.;m_lU)tstone._l'=_and_Jtll1IeS White Truck Canpany, t/d/b/a F/J Leasing
Carpany and W.C. McQuaide, Inc.
You are hereby notified that
.n----~~!:l~-~,-_~~j.A':!'?!n~;:'____n_____nn_.__n_________n_nn___n__n________________n_
the Plaintiff haS commenced an action in __.civi.LAc::tiQIL=_LaWnn____n____________________n
against you which you are required to defend or a default judgment may be entered again!lt you.
(SEAL)
.___~jJ;_F,_JJo~______________________.____
Prothonotary
Date ___~P..r.:g__J,,~_________________ 19_~~_
By ---~H4---~~7-~--__n_
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17. Dcfendant Jcffrey Blystone was cited by the Pennsylvania
State Police, who investigatcd this accident, for violation
of75 Pa. C.S.A. Scc. 3361, Driving Vehicle at Safe
Speed and Pa. C.S.A. Sec. 4107 Unlawful Activities, (duty)
log not currcnt.
4. The introduction ofsummary offense convictions is inadmissible to prove negligence
in a civil action. Hurtt v. Stirone. 416 Pa. 493, 206 A.2d 624 (1965).
5. Hence, it is axiomatic that the introduction of simply being cited for a summary offense
is also contrary to the law of this Commonwealth.
WHEREFORE, the moving Defendants pray that the Court dismiss paragraph 17 of the
Plaintiff's Complaint.
II. PRELIMINARY OBJECTION RAISING THE LEGAL INSUFFICIENCY OF THE
PLAINTIFF'S COMPLAINT (DEMURRER) PURSUANT TO Pa. R.C.P. 1028(a)(4)
I. Count II of Frank Fruciano, Jr.'s Complaint purports to state a claim for punitive
damages against all of the named Defendants.
2. Paragraph 25 of the Plaintil1's Complaint reads as follows:
25. At the aforesaid time and place, Defendant Jeffrey Blystone
operated his truck and trailer with reckless indifference to the
rights of others. Defendant Blystone knew or had reason to
know that his conduct may create a high degree of risk of physical
harm to another and deliberately proceeded to act or failed to
act in conscious disregard of or indifference to that risk.
Specifically, Defendant Blystone
a. had knowledge that the tractor/trailer he was operating
was a heavy instrumentality;
b. deliberately operated this tractor/trailer at a dangerously
high rate of speed;
2
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1999-01917 p
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FRUCIANO FRANK A JR
VS.
BLYSTONE JEFFREY ALAN ET AL
but was unable to locate
deputized the sheriff of
to serve the within WRIT
R. Thomas Kline , Sheriff, who being duly sworn according
to law, says, that he made a diligent search and inquiry for the within
named defendant, to wit: FOX AND JAMES WHITE TRUCK
COMPANY
Them
WASHINGTON
OF SUMMONS
in his bailiwick,
He therefore
County, Pennsylvania.
On July 8th, 1999
the attached return from
, this office was in receipt of
WASHINGTON County, Pennsylvania.
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep. Washington C
18.00
9.00
8.00
36.50
~/i.~U ME~TE, EVANS & WOODSIDE
07(0811999
~~~
. r 0 a ~n, r
Sworn and subscribed to before me
this I ~ day of ~
19 q,/ A,D.
Gtu- E~~aWi
In The Court of Common Pleas ofCumberlund County, Pennsylvania
Frftnk A. Fruciftno. Jr.
VS,
Jeffrey Alan Blystone. ct. al.
Serve. Jeffrey Alftn Blystone
No. 99-1917 Civil
19_
Now, 4/7/99
19_,1 SHERIFF OF CUMBERLAND COUNTY,I'A do bereby deputize the SberllTof
County to execute this Writ, Ibis deputaUon being made at Ibe request and risk of tbe Pia InUIT,
Tnti~nn""
r~":"'.4'<~~
SherllTofCumberland Cnunty, Po.
Affidavit of Service
Now,
April 24.
19 99 ,at 7:40
o'clock P
M, served the
witbln Summons
upon Jeffrey Alan Blystone Jr
at RD 1 Box 401 Lettering Rd, Creeksinge. Washington Twp. Indiana County PA
by handing to Him personally a true and
attested eopy of lbe original Summons and made known to
Him tbe contents thereof.
So answers,
Deputy
COSTS
Sworn and subscribed before
da ril 199919_
SERVtCE $31.00
MILEAGE
AFFIDA VIT
Notary $3.00
s
$34,00
. 'AI. SEAl,
OlIvid oalil. Notary Public
",,!l.~a. Pa. 'ndi'na County
Mv CommisSIon Expires JAnuary 28, 2002
s
SHERIFF'S DEPARTMENT
WASHINGTON COUNTY, PENNSYLVANIA
COURTltOUSE SQUAnE. SUITE 101, WASHINGTON. PA I~JOI 4-9-99
724.22lHl84O DA TE
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
...TftUCtlOHt,: .........oul.""'*..IQrl'IlIUrMClt~ 1'W-lll'
ptInl'-glbly,NuMO~d"OCl(llM Do "DC dMrft..,QIlIplM
I'LAlHTlFP I I I
FllANK A. F'RUCIANQ JR.
COIlRT NUUIER OF WRIT 011 COMPLAINT
99-1917 CIVIL (CUMBERLAND
DlPENDAHT II ,
JEFFREY AL/IlII
TYPE OF WRIT 011 COUPLAlNT
BLYSTONE, et al SUMMONs
- OF INDl'IlOUAL. COUPANY. CORPORATION. IIC.. TO HRVlCI OR DfSCIIIPIlOH OF l'AOI'fRTY 10 IE LEVIED. ATYACNED OR IOU)
FOX & JAMES WHITE TRUCKING CO. t/d/b/a F/J LEASING CO.
s. {
AT
ADDRESS (SltM' Of "'0, A~tnI No.. Cltr. Bafot Jwp.. Slall tnd ZIp.)
459 I..CNGVIEW AVENJE WASHI~, PA
15301
INDICATE TYPE OF SEAVICE: 0 PERSONAL 0 PERSON IN CHARGE 0 DEPunZE 0 CEAT. MAIL 0 REG, WAil. 0 POSTED 0 OTHER 0 LEVY D SEIZED ,.rORE
speCIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEOITING SERVICE EMplllhon/H..'lng Oal.
5-1-99
MlTEOM.Y AJlAJ:A8LE ON WRIT Of UECUTKlH; HJ. WAMR OfW"'CHUAH . J.rr dtOll) """'~~'"II~ti'JI1 ()I1f1~ "'1 P'0llI'T1 lIfIl>>r '11'II11/I'I11" 'I\..,.IeM~."""'a..dYllWI. "CUllOO)'ol~" ..bIldlll
poe-.cn,... notJtplQ ptf10tI oIlIYy Of ~/v!Itrt IICh 0I.f Io,Oltt ~ 1NI:.tIT d M1l -'1)' O' 1"- v..ft 10"" pj"",,~ ......., ~ lI"/ lOll. dtilr..crO'l Of filii""" 01.... 1>ICh pt~, btb... "'''i'I'' ,......-.1
IIGNAT\JAE of ATTORNEY or om., ORIOINATOR '~IJI'hr'lg UI'V1C. on b.n.JI 01
C PlAINTIFF
CUMBERLAND CXXJNrY SHERIFF 0 DEFENDANI
AOORESS
TELEPHONE NUMBER
I hereby fE'TJr( ~RETURN lhat on the
--U.~ o'clock'"P.M.
I hive Hrved in the manner Described below'
o Defendanl(s) personally served
D Adull family member with whom said Delendanl(s) re:dde(s). Relationship is
o Adult in charge of Dofendant's residence who refused to give name or relationship
o Manager I Clerk of place of lodging in whIch Defendant(s) reside{s)
D Agent or person in charge of Defendant(s) oHlCe or usual place of business
o Other
D Property Posted
O'Deputize
o Cen. Mail 0 Levy Made 0 Reg. Mail
Defendant not found because: 0 Moved Unknown 0 No Answer 0 Vacant 0 Other
.19
. .,
Now.
19 _ . r, SHERIFF OF WASHINGTON COUNTY. PA. do hereby deputIZe the Sherifl of
This dePutalion being made at the requesl and risk ollhe plainhlf.
Counly 10 execute this Wrd and make relurn lher80f according 10 law.
Notary Public $
$
Check Number
Check Number
SHERIFF OF WASHINGTON COUNTY
County Costs $
Page
278
,5r)
Advance
S 75.00
Invoice
62056-99
Docket
19
Costs Due
S
I[Y-
'11 I
~\C~
P,o'hone".' NeJ''l'h''H . January,
MY COMMISSION EXPIRES A\'lY~. Y \C\
I ACKNOWlEOGE ,CIilBfrtltE1IIIt~ERIFF'S RETURN SIGNATURE
OF AUTHORIZEO I lll~tl AUTHORITY ANO TITLE.
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Jeffrey Alan Blystone
R.D, #1, Box 401 Kettering Road
Creekside, PA 15732
Fox and James White Truck Company
Vd/b/a F/J Leasing Company
459 Longview Avenue
Washington, PA 15301
Fox and James White Truck Company
Vd/b/a F/J Leasing Company
PO Box 607
Route 30 East
Latrobe, PA 15650
W.e, McQuaide, Inc.
153 Macridge Avenue
Johnstown, PA 15904
W,C. McQuaide, Inc.
P,O. Box 383
Lexington Avenue
Johnstown, PA 15902
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FRANK FRUCIANO, JR.,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
vs,
CIVIL ACTION - LAW
JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, tldlb/a F/J LEASING
COMPANY and W,C, MCQUAIDE
INC"
JURY TRIAL DEMANDED
NO. 99-1917
Defendants
CERTIFICATE OF SERVICE
I, BRIAN G. PRICE, ESQUIRE, hereby certifY that I have served a true and correct copy
of INTERROGATORIES and REQUESTS FOR PRODUCTION OF DOCUMENTS PRO
POUNDED UPON THE PLAINTIFF by depositing the same in the U.S. Mail, First Class, Postage
Prepaid, this ;;qJL day of {ft~ , 1999, and addressed as follows:
Andrew H. Dowling, Esq.
340 I North Front Street
Harrisburg, PAl 70 II
DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
BY:
f:ul {}~ (; IL~
BRIAN G. PRICE, ESQUIRE
>': ('01 ""
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FRANK FRUClANO, JR.,
PlaintilT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
NO: 99.1917 CIVIL
JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, t/dlb/a F/J LEASING
COMPANY and W. C. MCQUAIDE :
INC.,
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document
upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage
prepaid, addressed as follows:
Brian G. Price, Esquire
Dougherty, Leventhal & Price, L.L.P.
459 Wyoming Avenue
Kingston, PA 18704
BY:
METrE, EVANS & WOODSIDE
~
ANDREW H. DOWLING, ESQUIRE
Supreme Court I.D. No. 39692
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
Telephone: (717) 232-5000
Attorneys for PlaintilT
DATED: November Y , 1999
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(IUIt be typewritten and subnitted in "'~ll..."te)
TO THE PROTHONOTARY OF CUKBERLAND COUNTY:
Plelme l..ist the within IMtter far the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire capt:icn IlaJSt be stated in full)
FRANK FRUCIANO,JR.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-1917 CIVIL
JURY TRIAL DE~~NDED
(Plaintiff)
vs.
JEFFREY ALAN BLYSTONE, FOX and JAHES WHITE
TRUCK COMPANY, t/d/b/a F/J LEASING COMPANY
and W.C. MCQUAIDE, lNC"
( Defendant)
No. 1917
Civil
1999
I
I
,
I
I
i
I
I
i
1. State matter to be argued (Le.. plaintiff's rotion for new tria1.. defendant's
dem.u:rer to canplaint. etc.):
Preliminary objections to the Complaint
2. Identify counse11Oho will argue case:
(a) far plaintiff:
Address :
Andrew H. Dowling, Esq" Mette, Evans & Woodside
3401 N, Front St., Harrisburg, PA 17011
(b) far defendant: Brian G. Price, Esquire
Address: Dougherty, Leventhal & Price, L,L.P,
459 Wyoming Avenue, Kingston, PA 18704
3. I will notify all parties in writing within t-...o days that this case has
been listed for a-cgurent.
4. Argurent court Date:
December 8, 1999
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FRANK FRUCIANO. JR..
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
JEFFREY ALAN BLYSTONE,
FOX AND JAMES WHITE
TRUCK COMPANY, tldlb/a
F/J LEASING COMPANY and
W.C. MCQUAIDE, INC.,
DEFENDANTS
: 99-1917 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO
PLAINTIFF'S COMPLAINT
BEFORE BAYLEY. J, AND GUIDO, J.
ORDER OF COURT
AND NOW, this IE::) day of December, 1999, IT IS ORDERED:
(1) Paragraph 17 of plaintiffs complaint, IS STRICKEN.
(2) Defendants' motion to dismiss plaintiffs claim for punitive damages, IS
DENIED.
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By the Court,'~ /
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Edgar B. Bayle~, J.
Andrew H. Dowling, Esquire
For Plaintiff
e..~ ffi.A'Jc<<t, /.a//3/QQ .
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Brian G. Price, Esquire
For Defendants
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FRANK FRUCIANO, JR.,
PLAINTIFF
V.
JEFFREY ALAN BLYSTONE,
FOX AND JAMES WHITE
TRUCK COMPANY, Udlb/a
F/J LEASING COMPANY and
W.C, MCQUAIDE, INC.,
DEFENDANTS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
r
: 99-1917 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO
PLAINTIFF'S COMPLAINT
BEFORE BAYLEY. J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., December 10,1999:-
Plaintiff, Frank Fruciano, Jr., filed a complaint against defendants Jeffrey Alan
Blystone, Fox and James White Truck Company, Udlb/a F/J Leasing Company and
W.C. McQuaide, Inc., for damages arising out of an accident on August 8,1997, on the
Pennsylvania Turnpike in Lower Allen Township, Cumberland County. In his complaint,
plaintiff avers that while he was traveling eastbound in a car on the Pennsylvania
Turnpike, defendant, Jeffrey Alan Blystone, was traveling westbound in a tractor-trailer.
Plaintiff avers that defendant was operating the tractor-trailer at a dangerously high
speed which resulted in his crashing through the guardrail dividing the westbound and
eastbound lanes and colliding with plaintiff's vehicle. Plaintiff alleges that defendant
drove with reckless indifference to the rights of others, that he knew that his conduct
99.1917 CIVIL TERM
created a high degree of risk of physical harm to others, that he deliberately proceeded
to act in conscious disregard or indifference to that risk in crashing the tractor-trailer
through the guardrail and into oncoming traffic.
Defendants filed preliminary objections to plaintiffs complaint seeking to strike
paragraph 17 which sets forth that defendant, Jeffrey Alan Blystone, was cited for two
violations by the Pennsylvania State Police, and plaintiffs claim for punitive damages.
Defendant concedes that paragraph 17 must be stricken but maintains it has pleaded
sufficient facts in support of his claim for punitive damages,
We have filed two opinions on motions for summary judgment regarding claims
for punitive damages in cases in which tractor-trailers were involved in accidents. In
Reg! v. PGT Trucking, Inc" 46 Cumberland L.J. 217 (1997), the facts were:
[G]erald D. Regi, was injured in an accident at approximately 6:00 a.m. on
a clear day on Interstate 61 in Middlesex Township, Cumberland County.
A tractor-trailer operated by defendant, Kenneth M. Greathouse, struck
the rear of a 28 foot trailer loaded with construction materials attached to
a pickup truck operated by plaintiff. The force of the collision pushed the
trailer and pickup truck approximately 100 feet from the position where the
tractor trailer came to rest. Greathouse and the trucking companies for
whom he was driving admit negligence. Defendants filed a motion for
partial summary judgment on plaintiffs claim for punitive damages.
(Footnote omitted.)
. . .
[p]laintiff in his deposition stated that he had slowed almost to a stop as
the van in front of him did the same, he saw defendant coming from
behind, and it did not appear as if he was going to stop. Defendant then
struck his vehicle and pushed it into the van in front of plaintiffs vehicle.
In his deposition, defendant stated that he was aware that he was in a
construction zone, that nothing obscured his vision ahead, and that he did
-2-
99.1917 CIVIL TERM
not recall anything specifically distracting his attention from the vehicles
that were ahead of him. The state police officer who Investigated the
accident has set forth that defendant failed to react to the slowing
vehicles In front of him and although he applied his brakes, his
actions camo to late too avoid colliding with plaintiff. Plaintiff has no
direct evidence as to defendant's speed at the time of the collision
although he notes that the damage caused by the accident as shown in a
picture taken at the scene before any vehicles were moved reflects a
violent collision. (Footnote omitted) (Emphasis added).
In granting summary judgment on plaintiff's claim for punitive damages, we stated:
These facts. . . show that defendant was inattentive to the traffic
that slowed to a near stop in the construction zone. Obviously defendant
was negligent, but the facts are not, in our opinion. sufficient to establish
that he exhibited a conscious disregard or indifference to the risk
associated with a rear-end accident. To hold otherwise would turn every
collision case in which a truck rear-ends a vehicle into a punitive damage
case,
In Williams v. Tranum, 46 Cumberland L.J. 62 (1996), plaintiff was operating a
snowplow and defendant was operating a tractor-trailer on Interstate 61. A witness
testified at a deposition that he was operating a van with a box trailer southbound on
Interstate 81. He was in the center lane of three southbound lanes and an ABF tractor-
trailer, defendant, was in the right lane. The witness saw flashing lights when he was a
mile and a half away from the Wertzville Road exit. He testified that he "[c]ould see the
lights due to all the amount of snow that was on the ground and the lights reflecting off
of the snow." While there was snow on the ground, it was not snowing or raining at the
time and the roadway was clear. When the witness was approximately two-thirds of a
mile away from the exit, he realized that the lights were on a state truck that was in the
right southbound lane. There were bright yellow flashing lights on a bar on back of the
-3-
99.1917 CIVIL TERM
truck and there was an overhead beacon. There was a lighted road sign directly above
tha state truck that extended over all three southbound lanes of the interstate. The
witness testified that he was behind the first trailer of defendant's vehicle but coming up
upon the front of the back trailer. He realized that he "[hJad to get over into the left lane
so that the ABF driver could get over and get out of the way of the snowplow." While
about two.thirds of a mile from the snowplow, the witness moved his vehicle Into the left
lane and flashed his lights so that the ABF driver would know that he "[hJad cleared the
center lane and went into the left lane and that would give him an opportunity to be able
to get into the center lane." The snowplow was stopped facing southbound in the right
lane of the highway. The ABF driver continued in the right lane and hit the snowplow at
approximately fifty miles an hour. At that point the witness was approximately two truck
lengths ahead in the left lane and going about fifty.five miles per hour. He saw the
impact through his rearview mirror. His vehicle, the snowplow and the ABF tractor-
trailer were the only vehicles in the area when the accident occurred.
Defendant, Charles Tranum, testified at his deposition that on the day before the
accident he was on a two hour cail-up from ABF. He stayed at his house and took
some naps until the cail to work came at 5:00 p.m. He went in at 7:00 p.m. He left an
ABF terminal in Cumberland County at approximately 8:00 p.m. and drove to Scranton,
Pennsylvania, arriving at approximately 11 :00 p.m. On his way back from Scranton he
stopped for about fifteen minutes for a cup of coffee. At approximately 3:00 a.m. he
drove across the Interstate 81 bridge over the Susquehanna River between Dauphin
-4-
99-1917 CIVIL TERM
and Cumberland County, Tranum testified that he does not remember if it was raining
or snowing or what the road conditions were. He does nol remember anything after the
Enola exit that is just beyond the bridge until the accident occurred at the Wertzville
Road exit. He testified that he does not remember how the accident happened. When
asked whether he was awake at the time of the accident he testified "I can't honestiy
say that. r don't know. I don't remember the accident. II's that simple:"
The last thing I remember prior to the accident is Carolina passing me
coming up the hill there. There's a little hill when you come off the end of
the bridge. I remember his passing me there.
Tranum was referring to a Carolina Freight truck that passed him near the Enola exit.
He has no memory of the witness's vehicle or of the witness blinking his lights to let him
know the center lane was clear before the point of impact. Tranum testified that he had
his seat belt on and was knocked out for a couple of seconds when the accident
occurred. His leg was injured and he was taken to a hospital in an ambulance where
he was treated for serious injury to his knee.
Plaintiff, Michael Williams, testified at his deposition that he was working a
midnight to 8:00 a.m. shift on February 16, 1994. He was operating a dump truck and
had been plowing shoulders on interstate 81 between the Enola exit that is just south of
the bridge over the Susquehanna River to the Wertzville Road exit about three miles
away. It was a clear, cold night and there was no snow on the travel lanes of the
highway. Williams testified that his truck had on six blinking rear, bottom, top and side
flashers plus two high frequency blinking lights and a beacon. Williams had been
-5-
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted In duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list lhe tOllowlng case:
(Check one)
( X ) tor JURY trial at the next lerm of civil courl.
) tor trial.wilhOUI a jury.
-----...._..._u._......................................._....................................................................
CAPTION OF CASE
(en lire caption must be Slaled In tull)
(check one)
FRANK FRUCIANO, JR.
Assumpsit
Trespass
X) Trespass (Molor Vehicle)
(Plaintitt)
(other)
vs.
JEFFREY ALAN BLYSTONE, FOX and JAMES
WHITE TRUCK COMPANY, t/d/b/a F/J
LEASING COMPANY and W,C. MCQUAIDE, INC.
The trial list will be called on Januarv 4, 2000
and
Trials commence on Januarv 31. 2000
(Detendant)
Pretrials will be held on January 12, 2000
(Briefs are due 5 days before pretrials.)
vs.
(The party listing this case for trial shall provide
forthwith a copy of the praecipe to all counsel,
pursuant to local Rule 214.1.)
No. 1917
Civil
99
Indicate the attorney who will try case for the party who files this praecipe: Andrew H. Do~.ing, Esq,.
METTE, EVfu~S & WOODSIDE, P. O. Box 5950, Harrisburg, PA 17110-0950
--.-----.--- -
Indicate trial Counsel for other parties if known: Brian G. PLi.c.~-'._Es!ll!t.J:..e......!)J;).ughe.t:ty~ _.
Leventhal & Price, L,L.P., 459 Wyomin~ Avenue, Kingston, PA 18.7Q~_______
- -...--. -..- _'_.._u_ ___40__
This case is ready for Irial.
. ~~~
Signed: ____ _ _ _ _'_ ___.
Print Name: _Andre~.!!.:_!l!'.~!"L
Date: December~1999__.
Attorney for: ...Plil.:!JJ.l:iJf . _ _._ ____. ._..
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted In duplicate)
. r', ~~:'(
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
,: ~: 2
Please list the following case:
(Check one)
.
f
( X ) for JURY trial althe next term of Civil court.
) for trlal.wlthout a jury.
-----..--..-.-..-.....--.---...---...........................-...............................................................
CAPTION OF CASE
(entire cap lion must be stated in full)
(check one)
Assumpsit
FRANK FRUCIANO. JR.
Trespass
(X) Trespass (Motor Vehicle)
(Plaintiff)
(other)
vs.
JEFFREY ALAN BLYSTONE. FOX and JAMES
WHITE TRUCK COMPANY, t/d/b/a F/J
LEASING COMPANY and W. C. MCQUAIDE, INC.
The trial list will be called on February 15. 2000
and
(Defendant)
Trials commence on March 13, 2000
Pretrials will be held on February 23. 2000
(Briefs are due 5 days before pretriais.)
vs.
(The party listing this case for trial shall provide
forthwith a copy of the praecipe to all counsel,
pursuant to local Rule 214.1.)
No. 1917
Civil
- 99
Indicate the attorney who will tr/ case for the party who files this praecipe: Andrew H. Do~ing. Esq"
METT~, EVANS & WOODSIDE, P. O. Box 5950, Harrisburg. PA 17110-0950
------.--- -
Indicate trial counsel for other parties if known: Brian G. Price......r;sQUir.'L.,l1l?J,u,hliltl)[,__
Leventhal & Price, L,L.P" 459 Wyoming Avenue, Kingston, PA 187Qi._______
This case is ready for trial.
Signed: ~_:- ~ .
Prrnt Name: _Andre~.!!.:_!l.".wl!o"~
Date: January 4, 2000
A ttorney for:
Plaintiff
FRANK FRUCIANO, JR.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO: 99.1917 CIVIL
V.
,JEFFREY ALAN BLYSTONE,
FOX and JAMES WHITE TRUCK
COMPANY, t/dIb/a F/J LEASING
COMPANY and W, C. MCQUAIDE :
INC"
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO
"DEFENDANTS' MOTION FOR A PROTECTIVE ORDER"
AND NOW, comes Plaintiff, }o'rank Fruciano, by and through his
attorneys, Mette, Evans and Woodside, and files this Response to Defendants' Motion
for a Protective Order and in support thereof avers:
GENERAL RESPONSE
A. The Defendants should not be permitted to delay the trial of this case by
delaying pursuing discovery and then when the matter is listed for trial claim that
discovery is not complete.
B. The Defendants have engaged in a pattern of delay with respect to the
discovery in this case.
2, Denied as stated. The occident oceurred on August 8, 1997. The
Plaintiff, through counsel, informed the insurance company for the defendants of his
claim by letter dated October 31, 1997. By letter doted January 7, 1998, the Plaintiff
began informing the insurance company for the defendants of the nature of his
injuries and medical treatment received. By cover letter dated February 12, 1999, the
Plaintiff provided the Defendants' insurance carrier with copies of extensive medical
records describing in detail his injuries and treatment received. Unable to elicit from
the insurance carrier for the Defendants a fair and reasonable settlement offer, the
Plaintiff filed a Complaint on June 4, 1999.
3. Admitted.
4. Admitted.
5. After reasonable investigation, the Plaintiff lacks knowledge or
information sufficient to form a belief as to the truth of this averment; the averment
is denied and strict proof thereof is demanded. The Defendants never communicated
to the Plaintiff their desire to have preliminary objections resolved on briefs alone.
Furthermore, if the Defendants desire to have their preliminary objections submitted
on briefs alone, they failed to follow Cumberland County local rules by filing a
Praecipe for Argument and obtaining Court approval for submissions on briefs alone,
4
pleadings amended accordingly, At that time, depositions of the parties had not
occurred and it was premature to consider releasing a party from the lawsuit.
Furthermore, the information the Defendants provided the Plaintiff in support of
their request that a co-defendant be released from the lawsuit was inaccurate and
misleading based on the information obtained during the depositions of the parties.
12. Admitted. By way of further answer, the Defendants delayed in
responding to the Request for Production of Documents and did not respond until
October 25, 1999.
13, Denied. The Plaintiff wrote the Defendants on October 22,1999 stating
that the Plaintiff intended to list this case for trial with the trial term commencing
January 31, 2000 providing the Defendants with over three months notice for a very
simple, uncomplicated two vehicle accident. By way of further answer, the
Defendants insurance carrier had at least by February of 1999 a copy of the police
report and all medical records generated from the treatment of the Plaintiff:
14. Admitted. By way of further answer, response was late by 34 days.
15. It is admitted that the Defendants wrote the Plaintiff a letter dated
October 28, 1999. By way of further answer, the Defendants could have conducted
6
discovery in June, 1999 and delayed in waiting until October, 1999. See response to
Paragraphs 5 and 8.
16. Denied as stated, The letter dated October 29, 1999 speaks for itself,
17. Admitted.
18. Admitted. By way of further answer, the Plaintiff promptly responded
to the Defendants Request for Production of Documents within one week of service.
19. Denied as stated. It is the Plaintiff who requested the Defendants
preliminary objections be resolved by the Court by listing the matter for Argument
Court pursuant to local rules. The Defendants never indicated a desire whatsoever to
have the matter submitted on briefs alone.
20. Admitted. By way of further answer, the Defendants served
interrogatories on the Plaintiff which were received on November 2,1999. Two days
later on November 4, 1999, the Plaintiff objected to the Defendants interrogatories
pursuant to local rule 4005-1.
7
21. Denied as slated. It is admitted that the PlaintifTseheduled the
deposition for use at trial of Anthony Bruno, M.D. for January 25, 2000 which was
subsequently rescheduled to January 27,2000 which gave the Defendants two and a
half months notice. Unfortunately, physicians arc not Oexible when it comes to
scheduling their trial depositions,
22. Denied as slated. It is admitted the Defendants wrote a letter dated
November 15, 1999 which speaks for itself. By way of further answer, Defendants
should not be permitted to delay trial by not promptly engaging in discovery and then
when the matter is listed for trial claim that they have not conducted discovery.
23. Denied as slated, It is admitted that by letter dated November 19, 1999
Plaintiff wrote a letter to the Defendants responding to various concerns of the
Defendants. A copy of the November 19, 1999 letter is attached as Exhibit "C".
24. It is admitted by cover letter dated November 19, 1999 that the
Defendants served upon Plaintiff Supplemental Interrogatories. The eover letter and
interrogatories were not received by the Plaintiff until November 23,1999. Within
fifteen days or by December 8, 1999 the Plaintiff filed Answers to the Defendants
Supplemental Interrogatories.
8
information sufficient to form a belief as to the truth of these averments; therefore,
averment is denied and strict proof thereof is demanded. By way of further answer,
the Defendants have had in their possession all of tho Plaintifrs medical records
since February, 1999 and if unsatisfied, could have directly subpoenaed these records
again as of June, 1999 after the lawsuit was filed.
35. Admitted. By way of further answer, the deposition of the Plaintiff was
completed on December 28, 1999.
36. After reasonable investigation, the Plaintiff lacks knowledge or
information sufficient to form a belief as to the truth of these averments. The fact
witnesses noted in Plaintifrs reply to Defendants Supplemental Interrogatories were
fact witnesses listed on the police report which was in the possession of the
Defendants as of February, 1999.
37. After reasonable investigation, the Plaintiff lacks knowledge or
information sufficient to form a belief as to the truth of these averments.
38. After reasonable investigation, the Plaintiff lacks knowledge or
11
exhibit A
Exhibit B
Exhibit C
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November 19, 1999
Page 2
.
By way of background, by cover letter dated February 12, 1999 I provided the
defendant's insurance carrier with extensive medical records and documents on Our
claim. A Complaint was filed June 4, 1999 and you entered YOur appearance
thereafter. There was nothing preventing you from sUbpoenaing medical records at
that time and there is nothing permitting you from sUbpoenaing them at this time. If
you provide me with copies of the subpoenas you intend to serve, I will waive the 20
day notice requirement. I do not think subpoenaing medical records is going to
provide you with any new information that the insurance carrier for the defendants
did not have back in February, 1999. Nonetheless, you are entitled to subpoena
medical records and I will assist you in expediting your obtaining these medical
records.
You filed a Request for Production of Documents by cover letter dated
October 29,1999 to which the Plaintiff responded to the request promptly on
November 3, 1999. The interrogatories you filed on October 29, 1999 violated local
rules to which we promptly objected on November 4, 1999. To date, you have not
reserved the proper number of interrogatories. To expedite matters, simply send me
a letter indicating which of the interrogatories you served you would like answered,
and as long as they don't exceed 40 in number, I will see that they are promptly
anSwered. As I did in my response to your Request for Production of Documents,
many of the answers to interrogatories will reference the extensive documentation I
provided the insurance carrier back in February, 1999.
There is nothing preventing you from scheduling a defense medical exam at
this time for early January and a videotape deposition of your medical expert for later
in January. There is nothing preventing you from scheduling the deposition of the '
plaintiff for sometime in December. Scheduling these matters now will expedite
matters pending your receipt of additional information you feel you need.
I do not believe you can delay in pursuing discovery and then when the case is
listed for trial claim that discovery is not complete. I believe I have given you
.. . II
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ADDRESS
CITY ST ZIP METTE EI/4,NS & WOODSIDE
, PO BOX 5950
HARRISBURG. PA 17110-0950
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ATTENTION: 4. ~o
METTE EVANS & WOODSIDE
POBOX 5950
HARRISBURG PA 17110-0950
1."111...1...11".1111,"11".1.1...1.1011"111,1.11.1111.11I
Plaintiffs Complaint. Said averments are therefore deemed to be denied and strict proof thereof is
demanded 01 trial.
14. Admilled.
15. It is denied that the Answering Defendants were negligent in any way. By way of
further answer, the averments contained in paragraph J 5 of the Plaintiffs Complaint are denied as
conclusions oflaw and fact to which no further response is required under the Pennsylvania Rules of
Civil Procedure.
16. After reasonable investigation, the Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 16 of
Plaintiff's Complaint. Said averments are therefore deemed to be denied and strict proof thereof is
demanded at trial.
17. Stricken
18 (a) - (k). It is denied that the Answering Defendants were negligent in any way. By way of
further answer, the averments contained in paragraph 18 (a) through (k) of Plaintiff's Complaint are
denied as conclusions oflaw and fact to which no further response is required under the Pennsylvania
Rules of Civil Procedure.
19. After reasonable investigation, the Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 19 of
Plaintiff's Complaint. Said averments are therefore deemed to be denied and strict proof thereof is
demanded at trial.
3
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20. Aller reasonable investigation. the Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 20 of
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Plaintiff's Complaint. Said averments are therefore deemed to be denied and strict proof thereof is
demanded at trial.
.)
21. Aller reasonable investigation, the Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 21 of
Plaintiff's Complaint. Said averments are therefore deemed to be denied and strict proof thereof is
demanded at trial.
22. Aller reasonable investigation, the Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 22 of
Plaintiff's Complaint. Said averments are therefore deemed to be denied and strict proof thereof is
demanded at trial.
23. Aller reasonable investigation, the Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 23 of
Plaintiff's Complaint. Said averments are therefore deemed to be denied and strict proofthereofis
demanded at trial.
WHEREFORE, the Answering Defendants respectfully request that the Court dismiss the
Plaintiff's Complaint and enter judgment in their favor.
4
over whom the Answering Defendants had no control or right of control or supervision,
6. The Answering Defendants owed no legal duty 10 the Plaintiff.
7. The Answering Defendants' conduct was not a legal cause of the Plaintiffs injuries.
8. The Answering Defendants' conduct was not a cause in fact of the Plaintiffs alleged
injuries or a substantial factor in causing the Plaintiff's alleged injuries.
9. The Plaintiffs claims are barred or limited by the Pennsylvania Motor Vehicle
Financial Responsibility Law, 75 Pa. C.S.A. ~ 1701 et seq.
10. The Plaintiff's claims are barred or limited by his selection of the limited tort option.
II. The Answering Defendants were responding to a sudden emergency not of their own
making and are therefore isolated from liability pursuant to the Sudden Emergency Doctrine.
12. The Plaintiff fails to state a claim for punitive damages.
13. The Plaintiff's claims for punitive damages are barred or limited because the
Answering Defendants' conduct as alleged in the Plaintiff's Complaint does not justifY an award of
punitive damages.
14. The Plaintiff's claims are barred or limited because his alleged injuries were pre-
existing.
15. The Plaintiff's claims are barred or limited because the Answering Defendants were
not negligent in any way.
,
6
VERIFICATION
I, JEFFREY A. BLYSTONE, hereby vcrify thai I am a Dcfendant in this aClion and that
thc facts set forth inthc foregoing ANSWER ANI) NEW MATTER are based on information
furnished to counsel, which information has been galhered by counsel in the course of this lawsuit.
The language of the Answer and New Maller is that of counsel and not of the undersigned. The
undersigned verifies that he has r~ad the attached Pleading and that it is true and correclto the best
of his information and belief to the extent that the contents of the Answer and New Maller are that
of counsel and the undersigned has relied upon counsel in making this verification. This verification
is made subject to the penalties of 18 Pa. C.S.A. Seclion 4904 relating to unsworn falsification to
authorities.
DATED: 2.-f-{)(}
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Ie ey Iystone
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FRANK FRUCIANO, JR..
Plftlnliff
IN TilE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
\'5.
CIVil. ACTION - LAW
JEFFREY ALAN BLYSTONE,
FOX and JAMES WIIITE TRUCK
COMPANY. tldlb/a F/J LEASING
COMPANY and W.C. MCQUAIDE
INC.,
JURY TRIAL DEMANDED
JUDGE EDGAR B. BAYLEY
NO. 99-1917
Derendants
CERTIFICATE OF SERVICE
I, BRIAN G. PRICE, ESQUIRE, hereby certifY thaI 1 have served a true and correct copy
of ANSWER AND NEW MATTER OF DEFENDANTS by depositing the same in the U.S. Mail,
First Class, Postage Prepaid. this l~dL day 04~,., , '''r . 2000, and addressed as
follows:
Andrew H. Dowling, Esq.
340 I North Front Street
Harrisburg, P A 17011
DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
BY:
~ "-(" "'- (, r."~ ,.-'
BRIAN G. PRICE, ESQUIRE
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6. W,C. McQuaide, Inc. had leased the tractor portion of the tractor trailer from the
moving Co.Defendant, Fox and James, Inc.
7. As Jeffrey Alan Blystone approached mile marker 2391 of the PA Tumpike, he moved
from the right lane into the passing lane.
8. At this point and time, he noticed a sign which read, "merge right".
9. Suddenly, a small white car in front of him in the passing lane came to a complete stop
instead of gradually merging into the right lane.
10. Jeffrey Alan Blystone could not move back into the right hand lane because other
tractor trailers were occupying that lane.
11. Realizing that he might not have time to stop prior to hilling the stopped white car in
front of him, he allempted to expedite his stopping time by rubbing up against the guardrail in the
middle ofPA Turnpike.
12. The guardrail did not support Jeffrey Alan Blystone's tractor trailer and he went
through the same into the east bound lanes of the P A Tumpike.
13. Upon entering the east bound lanes of the PA Turnpike, Jeffrey Alan Blystone's
tractor trailer struck the rear driver's side of Frank Fruciano's 1995 Chevrolet Monte Carlo.
14. The moving Defendants were never able to identifY the driver of the white car who
suddenly stopped in the west bound passing lane of the PA Tumpike in front of Jrffrey Alan Blystone.
15. The west bound passing lane of the PA Tumpike was closed in the area just ahead of
where this accident took place as P A Turnpike employees fixed a guardrail further down the road.
2
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FRANK FRUCIANO, JR.,
PLAINTIFF
V.
JEFFREY ALAN BLYSTONE,
FOX AND JAMES WHITE TRUCK
COMPANY tJd/b/a F/J LEASING
COMPANY AND W,C, MCQUAIDE,
INC.,
: IN TIiE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
DEFENDANTS : 99-1917 CIVIL TERM
CIVIL PRETRIAL CONFERENCE
AND NOW, this '20& I/-.. day of February, 2000. this case having been
called for a pretrial conference on February 28. 2000, and defendants having moved for
a continuance to further prepare their case, which motion is opposed by plaintiff, the
motion IS GRANTED. The case is continued to the May Term of court and will not be
continued again on the motion of defendants, Counsel should list the case for the May
Term at which time the case will be pretried.
Defendants will file a motion for summary judgment seeking to release F/J
Leasing Company which plaintiff will oppose. This motion shall be filed within fifteen
(15) days of this date with an accompanying brief which shall be forwarded by the
Prothonotary to chambers. Plaintiff shall have fifteen (15) days to file a response brief
in chambers. The motion will be decided without oral argument.
By the Court,
~ .
"
II. ISSUES
I. Whether the Court should dismiss Frank Fruciano's claims against Fox and James, Inc.
because the lessor of a motor vehicle is generally not liable for the negligence of a lessee?
Suggested answer = yes.
2. Whether the Court should dismiss Frank Fruciano's claims of punitive damages against
all of the moving Defendants because the evidentiary record is void of any facts to support such
claims?
Suggested answer = yes.
m. LAW AND ARGUMENT
A. STANDARD FOR SUMMARY JUDGMENT
Summary Judgment is granted according to the Pennsylvania Rule of Civil Procedure 1035.2.
Pennsylvania Rule of Civil Procedure 1035.2 reads in pertinent part as follows:
After the relevant pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for summary judgment
in whole or in part as a mailer oflaw.
(I) Whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could be
established by additional discovery or expert report; or,
(2) If, after the completion of discovery relevant to the Motion,
including the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce evidence off acts
essential to the cause of action or defense which in a jury trial would
require the issues to be submilled to a jury. Pa. R.C.P. 1035.2
Summary Judgment may be granted where the right is clear and free from doubt Musserv.
ViUsmeier Auction Company. Inc., 522 Pa. 367, 562 A,2d 279 (1989). The moving party has the
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burden of proving that there is no genuine issue of material fact. IhwDp!on Coal Company v.
Pike Coal Company. 488 Pa. 198,412 A.2d 466 (1979), Britnnlco Underwriter. Inc. v. Weiner
636 A.2d 649 (Pa. Super. 1994).
Summary Judgment serves to "eliminate the waste of time and resources of both litigants
in the Courts in cases where trial would be a useless formality". Curran v. Children's Service
Center.lne.. 396 Pa. Super. 219,578 A,2d 8,910), ~~d, 526 :~648,.585 A,2d
468 (1991).
As the United States Supreme Court has observed:
.
[S]ummary Judgment should not be considered as a disfavored
procedural shortcut, but rather as an integral part of [procedural
rules] which are designed to secure the just, speedy, and inexpensive
determination of every action. Cellotex Corp. v. Catrett. 477 U.S. 317,
327, 106 S. Ct. 2548, 91 L.Ed. 2d 265 (1986).
A Motion for Summary Judgment "Eliminates the poker game aspect of litigation and
compels the players to put their cards face up on the table before trial begins." fap,arelli v. G.A.F.
Qml.. 379 Pa. Super. 62, 549 A,2d 597,599 (1988), appeal denied, 522 Pa. 571, 599 A,2d 33
(1989).
B. DISMISSAL OF FRANK FRUCIANO'S CLAIMS AGAINST FOX AND JAMES. INe.
The Court should dismiss Frank Fruciano's claims against Fox and James, Inc. because the
lessor of a motor vehicle is generally not liable for the negligence of a lessee. In general, in order to
impose liability for an injury resulting from the operation of a motor vehicle under Pennsylvania law,
a Defendant must either operate the vehicle or stand in the relation of master and principal to the
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individual who actually causes the injury. unless liability is imposed by statute. John v. O'Neill, 475
A,2d 837, 838 (Pa. Super, 1984). As 0 result, the lessor of 0 motor vehicle is generally not liable for
the negligence of a lessee who operates it vehicle. Id.. However, "a lessor may be held liable. . . for
the lessor's own negligence in leasing the vehicle for use by a person whom the lessor has reason to
know is incompetent. ". Id.. A lessor may also be liable for a personal injury suffered by a third party
due to defective or dangerous conditions that are discoverable by reasonable inspection. Evans v.
Goodfine Truck Rental Service, 361 A,2d 643, 647 (Po. Super. 1976). In order to provide the
court with guidance regarding the application of the aforesaid law, the moving Defendants have
attached the case ofStrouss v. Siedle, 1997 W.L. 277340 (E.D. Ta.) to this brief os Exhibit "A".
In the case at hand, W.C. McQuaide, Inc. leased the tractor portion of the tractor trailer at
issue from Fox and James, Inc. (D.T. Randy McQuaide, 12/16/99, page 9) (See referenced portions
of Randy McQuaide's deposition transcript allached hereto as Exhibit "B") (See 5/19/95 lease
agreement allached hereto as Exhibit "C"). Jeffrey Alan Blystone was the employee of W.e.
McQuaide, Inc. on August 8, 1997. (D.T. Randy McQuaide, 12/16/99, page 6). Jeffrey Alan
Blystone was not an employee of Fox and James, Inc. (D.T. Randy McQuaide, 12/16/99, page 23).
(See 6/29/99 affidavit of Douglas Jessen, paragraph 5, attached hereto as Exhibit "0"). Moreover,
Fox and James, Inc. had no control over the routes Jeffrey Alan Blystone traveled. (D.T. Randy
McQuaide, 12/16/99, page 23). Jeffrey Alan Blystone never received driving assignments from Fox
and James, Inc. (D.T. Jeffrey Alan Blystone, 12116/99, page 32) (See referenced portions ofJeffrey
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Alan Blystone's deposition transcript anached hereto as Exhibit "E"). Jeffrey Alan Blystone did not
act on instructions, expressed or implied, of Fox and James, Inc. (See paragraph 5 of Exhibit "D").
Applying the aforementioned h:w and facts. the Court must dismiss Frank Fruciano's claims
against Fox and James, Inc. Initially, Frank Fruciano has not averred that the moving Co-Defendant,
Fox and James, Inc., is liable to him on the basis of any Pennsylvania Statute. Secondly, Frank
Fruciano has not produced any evidence to indicate that Fox and James, Inc. rented the tractor to
W.C. McQuaide, Inc. in some hazardous state of disrepair. Finally, Frank Fruciano cannot
demonstrate any form respondeat superior liability on the part cfthe moving Co-Defendant, Fox and
James, Inc. Hence. like in Strouss, the Court should grant the lessor, Fox and James. Inc. 's, Motion
for Partial Summary Judgment and dismiss all of Frank Fruciano's claims against Fox and James, Inc.
with prejudice.
C. DISMISSAL OF FRANK FRIICIANO'S CLAIMS FOR PUNITIVE DAMAGES
The Court should dismiss Frank Fruciano's claims for punitive damages against all of the
moving Defendants because the evidentiary record is void of any facts to support such claims.
Punitive damages may be recovered under Pennsylvania law if a tort feasor's actions were
outrageous, wanton, willful, oppressive or so careless as to exhibit a reckless indifference to the rights
of others. G.J.D. by G..J.D. v. Johnson, 552 Pa. 169,713 A.2d 1127, 1129 (1998). Pennsylvania
has adopted the punitive damages standard enunciated in 9 908 of the Restatement (Second) of Torts,
see Chambers v. Montgomel7Y, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963), and has defined
outrageous or wanton misconduct as meaning, "that the actor has intentionally done an act of
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unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to
have been aware of it. and so great as to make it highly probable that harm would follow." Smith
v. Brown, 283 Pa. Super. 116. 120,423 A.2d 743, 745 (1980). Punitive damages are not intended
to compensate the plaintiffand are regarded as purely penal in nature. Shiner v. Moriarty, 706 A2d
1228, [241 (Pa. Super. (998).
In the case at hand, there are no real facts to support Frank Fruciano's claims of punitive
damages. On August 8, 1997, Jeffrey Alan Blystone was traveling west on the PA Tumpike as he
returned from Philadelphia, PA. (D.T. Jeffrey Alan Blystone, 12/16/99, pages 33-34). He was
pulling an empty trailer. (D.T. Jeffrey Alan Blystone, 12/16/99, page 34). He had slept 8 hour the
night before in Philadelphia, PA. (D.T. Jeffrey Alan Blystone, 12/16/99, page 36).
Jeffrey Alan Blystone moved into the passing lane of the PA Turnpike. (D.T. Jeffrey Alan
Blystone, 12/16/99, page 38). He noticed a sign which read, "left lane ends I mile ahead". (D.T.
Jeffrey Alan Blystone, 12/16/99, page 38). He then prepared to re-enter the right travel lane. (D.T.
Jeffrey Alan Blystone, 12/16/99, page 38). He was traveling slower than 65 mph at this point and
time. (D.T. Jeffrey Alan Blystone, 12/16/99, page 40). Suddenly, a white car in front of his tractor
trailer stopped instead of gradually attempting to re-enter the right lane. (D.T. Jeffrey Alan Blystone,
12/]6/99, page 38). Jeffrey Alan Blystone braked but felt his trailer start to slide. (D.T. Jeffrey Alan
Blystone, 12/16/99, page 39). He tried to expedite his stopping time by rubbing up against the center
guardrail. (D.T. Jeffrey Alan Blystone, 12/16/99, page 39). Unfortunately, the guardrail did not hold
and he crossed into the east bound lanes of travel.
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Jeffiey Alan Blystone's account of the motor vehicle accident at issue is corroborated by an
eye witness, GlII)' Lee Neff Gary Lec Nefftestitied that he cntered the PA Turnpike going west at
exit # 19. (D. T. GlII)' Lee Neff, 2/9/00. page 8) (See referenced portions of Gary Lee Neff's
deposition transcript allached hereto as Exhibit "F"). Jeffrey Alan Blystone's tractor trailer was in
the right hand lane of the P A Turnpike when it passed Gary Lee NeWs tractor trailer which was
entering the PA Turnpike at exit #9. (D.T. Gary Lee Neff, 2/9/00, page 9). Other cars were actually
passing Jeffrey Alan Blystone's tractor trailer at this point and time. (D.T. Gary Lee Neff, 2/9/00,
page (3). Gary Lee Neff then traveled 8 miles behind Jeffrey Alan Blystone's tractor trailer. (D.T.
Gary Lee Neff, 2/9/00, page 14). Gary Lee Neff testified that he was traveling approximately 50 to
75 yards behind Jeffrey Alan Blystone's tractor trailer. (D.T. Gary Lee Neff: 2/9/00, page 16).
Jeffrey Alan Blystone was not driving erratically during this 8 mile span. (D. T. Gary Lee Neff,
2/9/00, page 16). Gary Lee Neff did not see Jeffiey Alan Blystone's tractor trailer bouncing prior
to moving into the passing lane of the P A Turnpike just before the motor vehicle accident at issue.
(D. T. Gary Lee Neff, 2/9/00, page 39).
Gary Lee Neff confirmed that P A Turnpike employees were working on a guardrail 50 yards
ahead of where JeflTey Alan Blystone went through the guardrail and into the east bound lanes of the
PA Turnpike. (D.T. Gary Lee Neff, 2/9/00, page 36). The PA Turnpike employees had an arrow
truck in the west bound passing lane directing traffic to merge right. (D.T. Gary Lee Neff, 2/9/00,
page 11). The P A Turnpike employees had orange cones set up to block the west bound passing lane
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where they were working. (DT Gary Lee NetT, 2/9/00, page 18). The entire west bound passing
lane oflhe PA Turnpike was blocked by these orange cones, (DT. Gary Lee Nell: 2/9/00, page 37),
The moving Defendants have also contacted the P A Turnpike Commission who have
conlirmed that a maintenance crew set up a single lane traffic pattern just a bit west of the location
of the motor vehicle accident at issue. This evidence supports both Jeffrey Alan Blystone and Gary
Lee Neff's testimonies. (See PA Turnpike Commission report allached hereto as Exhibit "G").
Considering the above facts which explain why this motor vehicle accident took place, it is
clear that Jeffrey Alan Blystone's actions were not outrageous, wanton, willful, oppressive or so
careless as to exhibit a reckless indifference to the rights of others. If anything, Jeffrey Alan Blystone
was negligent on August 8, 1997 when he encountered a sudden emergency.
The moving Defendants foresee that Frank Fruciano may attempt to support his claims for
punitive damages by submilling the theory that Jeffrey Alan Blystone fell asleep at the wheel of his
tractor trailer. To support such a claims, Frank Fruciano will utilize the written statement of an eye
witness, Kurry Seymour. In Kurry Seymour's statement which was typed and authored by Plaintiff's
counsel, it reads in pertinent part as follows:
I talked to the driver of the tractor trailer
when he got out of his tractor and the
driver stated "I can't believe I fell asleep,"
(See 12/29/99 statement of Kurry Seymour
allached hereto as Exhibit "H").
9
'Exhibit A
NOI Reponed in F.Supp.
(Clle u: fm m: 277340 (E,D.Pa.))
Marilyn STROUSS and Karen MlIIer, PlalntllTs.
v.
Christopher SEIDLE, Excel Transfer
Corporation, and Ryder Truck Rental, Ine"
Defendants.
Marilyn STROUSS. Thlrd.party Defendant.
No. CIV. A. 96-7753.
United States Distriet Coun, E,D. PelUlSylvania,
May 21, 1997.
ORDER AND MEMORANDUM
KATZ
'I AND NOW, this 21st day of May, 1997, upon
consideration of defendant Ryder Truck Renlal,
Inc. 's Molion for Summary Judgmenl, il is hereby
ORDERED that the said motion is GRANTED.
I. Facts
On July 13. 1995, Marilyn Slrouss and Karcn
Miller's car collided with a lruck driven by
defendant Chrislopher Seidle, Def. Mol. for Summ,
Judg. Ex. A. At the lime of the accidenl, Seidle was
a parl.lime employee for defendant Excel Transfer
Corporation ("Excel"), Id. Ex. B. Defendanl Excel
rented lrucks from defendant Ryder Truck Rental.
Inc" ("Ryder"), and at the time of the accident,
Seidle was driving one of these rented lrucks, Id.
Exs. C. D. Both plaintiffs suffered injuries as a
result of the accident: Strouss experienced
abdominal and leg injuries, and Miller's injuries
included a broken neck, degenerative joint disease,
and a pulmonary embolism, Id. Ex A. The
plaintiffs ftIed this action in slate coun, arid
defendants remnved the suit to federal coon.
Defendanl Ryder now moves for summary
judgment.
II. Standard
Summary judgmenl is appropriate "if the pleadings,
depositions. answers to interrogatories, and
admissions on file, logether with Ibe affidavits, if
any. show that there is no genuine issue as to any
material fact and that the moving pany is entilled 10
a judgment as a mailer of law." Fed.R.Civ.P.
56(c), The moving pany has the burden of
demonstrating the absence of any genuine issue of
malerial fact. Celotex Corp. v. Catret!. 477 U.S.
317,323 (1986).
. Page 1
When ruling on a summary judgment mol ion, Ibe
coun must cOMlrue the evidence and any reasonable
inferences drawn therefrom in favor of the non.
moving pany. Tiggs Corp, v. Dow Coming Corp"
822 F.2d 358, 361 (3d Cir.1987); Baker v, Lukens
Sleel Corp" 793 P,2d 509, 5/1 (3d Cir.19B6). In
other wordJ, if the evidence presented by the parties
conOiclJ, the coun must accept as true the
allegations of the DOn. moving party, Anderson v.
Wheny Lobby, Inc., 477 U.S. 242, 255 (1986),
When the movant does DOl have Ibe burden of proof
on the underlying claim or claims, that movant has
no obligation 10 produce evidence negaling its
opponent's case. but merely has 10 poinlto the lack
of any evidence supponing the non-movant's claim,
Nalional Slate Bank v, Federal Reserve Bank, 979
F.2d 1579. 1581-82 (3d Cir.I992),When Ibe party
moving for summary judgment is the party with the
hurden of proof at trial, and the motion fails to
eSlablish thc absence of a genuine faclual issue, Ibe
districl COUrl should deny summary judgmenl even if
no opposing evidentiary malter is presenled.
National Slale Bank, 979 F.2d at 1582.
Ill. Discussion
In general. in order to impose liability for an injury
resulling from the operation of a motor vehicle
under Pennsylvania law, a defendanl must either
operate the vehicle or stand in the relalion of master
and principal to the individual who actually causes
the injury, unless liability is imposed by Slatule. See
Jabn v. O'Neill. 475 A.2d 837, 838 (Pa,Super.
1984), IFNIJ As a resull, the lessor of a motor
vehicle is generally not liable for Ibe negligence of a
lessee who operates ilS vehicle. See id. However,
"[aJ lessor may be held liable ... for the lessor's
own negligence in leasing the vehicle for use by a
person whom the lessor has reason to know is
incompetem." Id. A lessor may also be liable for a
personal injury suffered by a third party due to
defective or dangerous conditions that are
discoverable by reasonable inspection. See, e,g"
Evans v. Goldfme Truck Rental Service. 361 A.2d
643,647 (Pa,Super.1976).
'2 Plaintiffs have not indicated that defendant
Ryder is liable on the basis of any Pennsylvania
statute, nor have they produced any evidence to
indicate that Ryder rented the truck to Excel in a
negligent manner or in some hazardous state of
disrepair. Moreover, plaintiffs cannot demonstrate
Copr. (i) West 2000 No Claim 100rig. U.S. Gov!. Worb
.
Exhibit B
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.,<,;....;..,,:
. FRANK FRUCIANO, JR.,
PLAINTIFF
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
JEFFREY ALAN BLYSTONE,
FOX & JAMES WHITE TRUCK
COMPANY, TIDIBIA FIJ LEASING
COMPANY AND W.C. McQUAIDE,
INC. ,
NO. 99-1917 CIVIL
DEFENDANTS JURY TRIAL DEMANDED
DEPOSITION OF: RANDY E. McQUAIDE
TAKEN BY: PLAINTIFF
BEFORE: SUSAN M. SIMON
REPORTER-NOTARY PUBLIC
PLACE: METTE, EVANS & WOODSIDE
3401 NORTH FRONT STREET
HARRISBURG, PENNSYLVANIA
DATE: DECEMBER 16, 1999
BEGINNING 1:10 P.M.
APPEARANCES:
METTE, EVANS & WOODSIDE
BY: ANDREW H. DOWLING, ESQUIRE
FOR - PLAINTIFF
. DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
BY: BRIAN G. PRICE, ESQUIRE
FOR - DEFENDANTS
~(Q)[P)W
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Have you brought any documents with you?
The lease agreements.
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A
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o
You brought them with you?
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(Nods head up and down.)
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The lease agreements or agreement?
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A
I haven't reviewed them. I'm not sure whether
7
there would be more than one.
0 Do you have them with you?
A Yes.
0 May I see them?
A Lease agreement, one.
(Documents handed to Mr. Dowl ing . )
BY MR. DOWLING:
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Q
Thank you. On August 8th, 1997, who was
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A
W. C. McQuaide, Inc., and he was in the MCS
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Q
So his employer was W, C. McQuaide, Inc., and
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A
Yes, MCS division.
Q
MCS division. Can you explain -- first of
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22 all, what kind of company is M. C. McQuaide?
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{
A
W. C. McQuaide?
Q
Excuse me, W, C, McQuaide.
A
W. C. McQuaide, Incorporated, is primarily a
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A It would be a requirement of the lease.
Q We'll get to the lease agreement in a moment.
Did McQuaide lease from F/J the tractor or the tractor and
trailer?
A Tractor.
Q And the trailers may be whatever company
you're hauling for, you just pick up those trailers, is
that correct?
A W. C. McQuaide does own trailers, however, if
I had a trailer number I could tell you if this belonged to
McQuaide or it could have been another carrier.
Q I'll show you the police accident report. It
indicates that the carrier is W, C. McQuaide, Inc.
A They don't have equipment numbers on here?
Q There's an Ice number if that helps,
A That ICC number happens to be McQuaide's
current number.
Q So is it fair to say that the trailer was a
McQuaide trailer involved in this accident?
A I have no way of knowing that without seeing
some type of identification of the trailer,
Q When did you learn of this accident?
A Shortly after it occurred.
Q Did you interview r.b:. BlystOllE:?
A Yes, by telephone.
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A Yeah, he was not an employee of Fox & James.
Q Did Fox & James have any involvement in the
routes that Mr, Blystone traveled?
A No, no.
Q Would you refer to paragraph 6 of the
affidavit where it says: Pursuant to the lease agreement,
McQuaide remained the beneficial owner for the use and
control of the subject motor vehicle and Fox & James was
merely the title owner and has never possessed dominion,
control
A I have something different here.
Q I'm talking about the affidavit by
Mr. Jessen.
A Oh, okay, I'm sorry.
Q Would you refer to item 6 of that affidavit
where it indicates that pursuant to the lease agreement
McQuaide remained the beneficial owner for the use and
control of the subject motor vehicle.
A Correct.
Q And Fox & James was merely the titled owner
and has never possessed dominion, control or authority over
the subject motor vehicle.
A Correct.
Q Could you show me where in the lease agreement
it supports paragraph 6 of the affidavit?
Exhibit C
@ ~EASING COMPANY
TRUCK LEASE AND SERVICE AGREEME:-IT
THIS AGREEMENT II m.d, " of ,h, 1geh d.yof May
b"'''"nFJL<allngCOmp,ny P.O. Box 607. Route 30 Ease, Laerobe. PennsYlvania 15650
~~S WAREHOUSING, DIVISION OF MCQUADE
153 ~~cRid~e Avenue, Johnseown. Pennsylvania 15904
~
Nalional.ease
PLAINTIFF'S
. EXHIBIT
."""1lvodP .J
"""''''UOott~'ClQ,
L EQl:IPMENT COVEHED AND TERM;
A. F. J agrees 10 II::ase 10 Customer .tnd Cusrnmcr agrees to Ic.ue (rom F/J Ihe: "chicles on Schedules A "'" ached herelo and (rom lime 10 lime here.
dler execuled 3nd m~dc r:U1 uf this 3grccmcnl (hcrc3flcr Vrhicle(s)), Execution 01 Schedules A 51'1.:111 conslilUIC Customer's authoriution 10 Ff} 10
aCl.Iuirc the Vehicles. "fhC' ^~rccmcnl sh~1I become effective with res peel 10 c~ch Vehicle on the dale the Vehicle is tendered by FJJ 10 Customer, or 48
hours :ifler ,III,: .I::uc ~ J notIfies Ctalomc: lhallhc Vehicle IS ilY;lilahlc: 1M deliyery. Whlche\'er occur: (iff(. ..nd sh;Jtf conllnue for thr lerm speCified on
Schedule A unle):( terminated earlier ~s provided hcrein:1fter.
B. AC'cept:1nce of Vehicles in service conSlitUtes:ln ~cknowlcdgementthatlhe Vehicles Comply with Customer'sspecilic:ltions. Customer agrees 10
pay (or an)' strucluralOlller:lliuns (not to be made without F/J's prior wrlllen consehl),speC'ial equipment, or materialalleration in painling.lellering. or
,UI work therea(ler required by Cuslomer. In the evenl th:Il, subsequent 10 the dale of execution a(this agreeme:u by F/J, any Federal, stale. or local
law, ordinance, or rcgul:uion shall require Ihe Innallation a( any additional equipment, specifically including but not limited 10 anti'pollution or safety
de\'ices, Customer shall be responsible for the C'ostlhereo(, including installation expenses. F I J agrees to either innall same or arrange f(lr the installa-
lion of same and Cunomer agrees to pay FJJ the full coslthereo( upon receipt of FO's invoice for same.
C. Where a Vehicle is operated by Customer Wilh a trailer or other equipment not included on Schedules A, or not maintained by F JJ under a
separate agreement, Customerwarnnu Ihat such trailer and/or equipment will be in good operating condilion and notwilhstanding any other provision
of Ihis agreement will indemnify and hold F / J harmless against any claim or loss ordamage resulting from Customer's failure to properly maintain said
trailer and, or equipment.
D. F.J may finance the Vehicles, or any p.UI lh:rc::o(, and in that connection may, as secumy, give the lender an inSl.lllmenl sales inslrument,
mortgage. or security agreemelit covering such Vehicles or assign amounts due hereunder.
2. OPERATION OF VEHIClF.S:
A. The Vehicles will be operated by Customer only in the normal and ordin.:l.ry Course of Customer's business, nOI in violation o( any law, rule.
regulation, statute or ordinance (including legal weightlimitalions) and Customer shall indemnify and hold FJ) harmless (rom and against all fines,
forfeitures, seizures. conriscations and penahies arising ouc of any such violacion.
B, Each Vehicle will be promplly relurned by Customer co F.J's facility specified on Schedule A upon Ihe termination of such lease unless
Cuslomer shall have purchased the Vehicle as provided hereinafter.
J. MAINTENANCE AND REPAIRS:
A, F IJ agrees to provide from its (acilicies: (I) Oil, lubricants, tires. tubes and all olher operating supplies and accessories necessary for Ihe proper
and efficient operation of the Vehicles: (2) M'aintenance and repairs including .all labor and parts which m.ay be required to keep the Vehicles in good
oper:1tlng condition; (3) Painling and lettering, according.to Customer's specifications, at the time the Vehicles arc placed into service: (4) Washing o(the
Vehicles: and (5) Road service due to mechanical and lire (ailure.
B. Customer agrees nOllO cause or permit any person other than F JJ or persons expressly authorized by F/1 to make repairs or adjustments 10
Vehicles, governors and other accessories. When repairs arc necessary. Customer shall noeify F 11 by the speediesl means of communic;llion available.
F:J will not be responsible for any repair or service while such Vehicle is Jway from F/J's facility, unless e:o;pressly authorized by FiJ and unless
Cuslomer submits an acceptable voucher for the repairs or services.
C. Customer agrees to relurn each Vehicle to FI J for service and mainlenance al che facility Slaled on Schedule A for a minimum o( 8 hours each
week during Ftl's normal business hours al such schedule times as agreed by the parties.
,. FUEL:
The party designated on Schedules A agrees 10 provide fuel for the Vchich::s.
A. When p: J is dcsignatcd:
(I) Fuel. oil and lubricants will be provided from FtJ's facilities or at service scat ions deSignated by F iJ. The charges \.\Iill be based on Ihe Rated
Fuel COst ineluding all fuel taxes Olnd adjustments in Ihe charges \.\Iii] be made OlS provided on Schedules A,
{2} If Customer purchases fuel (rom sources other Ihan F / J's fOlcililies ordesigna::d service slOllions. F i) .....ill reimburse Cuslomer (or such fuel
cost upon reecipl of an itemized paId InyoicC'. Such reimbursement shall not exceed lhe Rated Fuel Cost
UJ F, J will. where permittcd by law, upon request of Cuslomer, apply for fuel lax permits. prepare and fire fueltOlX rei urns. and pay Ihe taxes
Impuscd upon Ihe purehOlsC and consumption of fuel by Customer prOVIded; (Oll Customer shall prOVide F 1 J wcekly ""1Ih all lnp records, fuc:lllckels or
InVOIces. and other records or documcnrs relatlOg 10 the use oflhe Vehicles necessary for the preparation of Ihe (~el la,'( re:urns anr;: Customer shall
rClmbur\c F J I he amOunt of ,lny atJdilion.:ll chaq;c, assessment, t<1.\. or penalt)" or credit dISallowed as a rcsull o( u:1\imely or impropcr furnlshlng of
\Ueh ducume:1t~ or Information by Cus:omer. Jnd {bl Customer shall reImburse F /} all such (ue! IJ.\es paid on Cus:omer's behalf b~. F J In exccss of the
tuella.\c\ which would haye becn payable had lhe (uel consumed been purchased In thc Slale of consumpllon, excep:;o Ihee.\tenllha: Customer o bl.:l.tns
lucl at plJCCS and in amOUnB speclficaJlydc:sIgnJled by F/J on J Fuel Program slgncd by FIJ'\ Manager
H When Cuslomer j\ dcsignalc/t. . .
(uslomcr sh.,dl Indemnify and hold F{J harmless against any claims or los~ rcsultlng (rom Customc(s rallure:o ;l3:" ar.~ ~uc:l ta.\es
~, LICENSES:
i\ F J agrces to proYldc or pay for Ihe stale mOlor Yehlcle Ilccn~c (or the licensed wel.l;hl \hown on Schcdu;c A and personJl properlY laxes for
c:.u:h VehIcle in Ihe ,1.lIe or domiCIle, Jnd fedcral highway u~c [a,>;.. ....hcre apphcahlc, a[ lhe rales and method of JSSeSsme:":1 in cf{e::: on lhe dale o(
;:'\CCUlIOn or each Schedule ^
H \I,!hcn pcrmllletJ hy law. F:J 110/111 apply (or ~uch other vehIcle IIcenscs, prorJte or Slale reclprocily pl.lIes:!s CUSlo:':":er mOl;' ;'~O;';lllme 10 limc
!CIo;UCq JI CU.\lomer\ ~Illc CO~l and c.'pen~e
.19 95
(hmin,f1cr F/J).nd
, WhOle address i1
(herclnl(ler Cunomer).
C. CUII~mel .a,'en 10 p.a, (or .any 'pecI~llIce",e 01 poly ~n, l.IIu.requlled by CUllomu', bUllnell lelullln. "orn Ihe operallon .and use o( Ihe
Veh,cln Includln, rnllUice 'Uti. Ion mllule IHn. hlSh...ay 01 hlldge tolls. F/J sh.all h.ave the lIChllO ply or dl1ch.lf'f .any lien or encumbrance
ultned JI"nU Jny Vehicle IS.I ,uuh o( CUSlomer', hllule to pay .Iny d:llm or ;meumcnl (or .Jny 1uch l.aus and CU11omC'r shJn promplly fCImbune
FIJ (or 1uch payment.
6. SUBSTITUTION:
F/J 'S'CCIIO (~Ini'h.. subSlllulC vehlcle.al no elll,) chllle (o~ .any Vehicle. olhcrlh.an Ihose Clcepted bero.... whICh m.ay be lempor.arily inopenble
OCCJ~1C O( mech.nlc.al 'a,lure, the SUbUllule 10 be ,IS nearly pnellc,)ble lhe same sue .and .appc.snnce IS the Vehicle. ClCCpl thu no special painllnJ,
~clletl.nl 01 Olher. ..ltcnuo~' need be mlde on Ihe 1ubllllule ,,"chicle. The lubllllule vehicle. ~lll be (urnnhed 10 Customer whenever possible.at the pllee
.u which the Vehicle WI' dlubled Ind shall be returned by Customer to F/J Illhe F/J (aclllly from \N'hlch h wu provided. F/J shill have no obli,ation
'a (ur~uh .SUbllilule vehicle i( the Inoper.ble VehICle is OUI o( lCI.,i" ror ordinary m.inlen.nce .nd "....ice lime, oris oul or "....'cc because o(d.m'le
'cs~llInl from collision or upsel, or is specillized, or carries I Iruck body nOl owned by F/J. is QUI o( service for rcplir or mlintenance or spec ill
:qulpment or acceuories (01 INhlch F /J is nOI responsible. or is or Ilype F/J docs not hnc in ils renu,l neel. FIJ's (ailure (efurnish I substilulC vehicle
..ilhin Irusonablc lime, where illS obliglled hereunder lodoso. sh,allcause Ihe charges applicableto Ihe inoperable Vehicle to abale unlillhe Vehicle is
oelurned 10 CUllom"', scO'icc or until I SUbUIIUIC is lendered to CUJlomcr. F O's lilbility in the eVenl of sueh.a (.ail ute shall be limited 10 the abalemenl
,( Ihe charles (or Ihe inoperable Vehicle. A subSlitute vehicle, white in Cuslomc,'s service, shall be subjccl 10 alllhc lerms Ind conditions o( Ihil
Ilrecmcnt. While a Vehicle is OUI or service bcc3use or d.smagc resulting (rom collision or upset, F/J will. II the request o( Customer, rent Customer a
epllccmcnl vehic:le. if aVlilable (rom FiJ's renlal neel, .1l.a rcnuJ fafccqual tOlhcchugcs applicable to Ihe inopcrable Vehicle.lrrcspective or\N'hethcr
,r not Customer tenlS I ",chicle from F I J while a Vehicle is QUI o( service (or repair of damage resulling (rom collision or upset, the charges applicable to
he out of service Vehicle shall not abalc.
I. DRIVERS:
A, Customer agrees co Cause each Vehicle 10 be oper:ued only by a sa(e, care(ul, properly licensed driver, .alleast 21, who sh;aU be the employee: or
gent o( Customer only. paid by and subjecl 10 Customer's exclusive direction and conllol. Customer agrees to reimburse F I J in full (or loss or damage
o Vehicles, includinl relaced expenses, i( such Vehicles arc operated by drivel1 under 21. Upon receipl o( a wrinen complaint (rom F I J specifying any
eckJess, careless or abusive handling o( Ihe Vehicle or any other incompetence by or o( any driver, and requesling his removal as a driver o( Vehicles,
:ustomer will immedi.llely remove such individual as driver o( Vehicles. In Ihe evenl that Cuslomer Ih.sll (.ail to do so, or shall be prevenled (rom so
loing by .any Igreement wilh anyone: on Ihe driver's behal(: (I) Customer shall, notwithstanding any other remedies o( F /J or provisions o( lhis
19rcemenl, reimburse F/J in (ull (or any loss and expense suslained by F/J (or damage: 10 any Vehicle when being openled by such individual and
:ustomer shall rele:lSe, indemnify and otherwise hold F/J completely harmless (rom and againsl any cl.sims or causes o( aClion (or dealh or injury 10
.ersons or 1011 or damage 10 property arising out of Ihe use or operalion o( any Vehicle when being operated by such indiVidual notwithstanding Ih.sl
:1 J may be design.ated on applicable Schedules A as responsible for (urnishing and mainl3ining liabilily insurance. and(2) F/J may al its eleetion, and.al
ny time thereafler upon 30 days prior written notice 10 Cuslomer, terminate any liability insurance coverage provided by F I J hereunder, and may. .II its
lection, wilh respect 10 each Vehic:le, increase the amount of Customer's physical damage responsiblity to an amount equal 10 the agreed value
alcuJated in accordance with Paragraph II as of Ihe lime of damage or loss.
8. F/J agrees to assist Customer in developing a driver education and safety program.
C. Customer agrees that the Vehicles will not be operated by a driver in possession of or under Ihe inOuence o( alcohol or any drug which may
:npair his ability 10 operate the Vehicle, or in a reddess or abusive manner, or o(f an improved road, or on a Oat tire. or improperly loaded. or loaded
)fyond Ihe mlnufacturer's recommcnded maximum gross weight shown on Schedule A. Notwithslanding any olher provision of this agreement,
:uJtomer agrees to reimburse F/J in full (or damages, including expenses, resulling from a violation of this provision. Customer will be responsible for
II expenses of towing or removal o( any mired Vehicle when not in F/J's possission or on F/J's premises.
CHARGES:
A. Customer agrees to pay F/J the fixed charge for each Vehicle in advance upon receipl o( F O's invoice (or urne and to pay all olher charges.
pc:cifieally including, but not limiled to, the mileage rate per mile provided (or under this agreement wilhin 10 days o(lhe dale of F/J's invoice wilhout
eduction or seto((.
B. Mileage shall be determined from odometer readings. If the odometer fails lo fU:1ction. which failure Cuslomer shall immediately report to F IJ
:1 writing, the mileage (or the period in which the failure exisled may be determined at F/l's oPlion from (I) Customer's Irip records, or (2) from Ihe
mount of (uel consumed and Ihe miles per gallon record of F /J averaged for the previous 30 days.
ADJUSTMENT OF CHARGES:
A. The panics recognize that the charges provided for in this agreement are based on Fl1's Current cost o( labor, pans and supplies. The eoS! o{
IJ's operation may nuctuate after thc date of execution of this agreement Customer agrees thaI for each rise or fall of 1% In Ihe Consumer Price Index
JSing a 1967 base period, published by the United Slales Bureau of Labor Statislics). above or below Ihe base index figure on Schedule A. Ihe fixed
h.uge and mileage charge for each Vehicle, including Ihose charges stated in Ihe Mileage GuaranlY. if any. shall be adjusted upward or downward as
)lIows:
Vehicles.. w.ilh.F.J.lc.l pro\lided'-et"e~J: 1 % of one-hall ollhe 10lal Charges
r:~..Vchiel'es- willioul Ftlel p;o'yrdea~b~ F/J and Tr:lilen: 1% of lhroe,'ourlhs of the r01<l1 Charges
B. Any and ~li' s~J:isequent adjustments for "chides shall be based on lhe: charges stated on Schedule A. Adjustments in charges shall be e({ec:lve
:1 the first day o(.each calendar halryear period and will be based on Ihe lalesl index which has been published prior 10 such effective date. In the even:
le Consumer Price Index should be discontinued. ano(he~ rr.uluJlly agreeable cosl adjuslmenl index 10 adjust charges shall be agreed upon.
C. Cuslomer agrees to pay for (I) any sales or use la;'l. now or here:lfler imposed upon Ihe use: of the Vchicle or on Ihe rental or olher charges
ccruing hereunder. (2) any inerease in license or regislralion fees. including (ederal highw<lY use lax. yehicle inspection (ees. and personal property lax
~tes, or (3) any new or additional lax or govern menial fees, adopled after lhe: dte of Ihe execution oflhe applicable Schedule A by Cuslomer. upon the
lei provided by F/J.
o. INSURANCE:
A. liability. Insurance Responsibility
(J) Standard policy or aulomo bile liability i.nsurance (hereafter Liability Insurance) with limits specified on each Schedule A shall be furnished
:1d maintained by the party designated on Schedule A at ils sole cost, wrilten by a company satisfactory 10 F IJ covering bOlh F IJ and Customer as
\sureds (or the ownership, maintenance, usc or operation o( Ihe Vehicles and any vehicle being provided as J substitute Ihe~efor. Such policy shall
rovide that coverage affordcd cannol be cancelled or malerially al:e:ed wilhout 30 days prior wriuen notice 10 bOlh parlies. The party designalcd shall
~rnish 10 Ihe olher party eertifieales to evir' '.', compliance \Iollh Ihis provision. ..
'- , ,
(2} Upon 110( l~n (hln e.o~~ys prior w;iltcn nOllCe 1,0 C~ICO.n1er" FI J shall ha~~ lhe ri~hllo lermlnale llabilily InsurancccovcrllC maincained
by Ff} Ina Cuslomer ,h,1I be oblle.led 10 procure ,nd mllnl"n L..b,lI,y Insunnce In Ihc IImill set lorth on Schedule A U 01 Ihe ellCCl,ve dICe 01
lerm","on .nd Ihe chllSes wlil be .d)USled ,ccordinsly
. (3) I( Customer i~ oblill.tcd to procure Jnd mainuin Lilbilily In,suranec and (ails to do so, or rails 10 furnish FtJ the required evidence or
InlUrance. CUIIQmcr s,h~lIlndcmnl(Y Ind hold F/J harmleu (rom and 1IIInll ..ny dums or causes of ICllon (or dUlh or injury 10 penons, or Iou or
dam1ae 10 pro~crl.Y,amlnl OUI of or cause bylhc owncnhlp, mllnlenance. use, or opculion of any VehIcle, and F I) is ,aulhorized bUI nOI oblilllcd 10
procure ,.uCh LI~blhlY Insuuncc, Wl1hOUI prejudice 10 Iny olher remedy I-'U m~y have, .lnd CUllomer shill poilly FtJ. ..uddlllonalrenlal, lhc Imounl or
Ihe premium plld by F/J.
(4) CUSlomer alren 10 rclcas.e. indemniry. ..nd hol4 PO harmleu rrom ~nd ag~inu .:in)' c1..iml or caustl o( oiIIctlon (or death or injury 10
petS,ons, or loss ordlmale 10 propeny In excess oflhe limits or LiabililY Insurance, whelher provided by F/J orCuslomer. IS indic:ned on Schedules A,
allSlne oul or or c.1used b)' Ihe ownership, mainlenanee, use or opera lion o( In)' Vehicle le.ued or rurnished hereunder. and ..ny such claims orcauselor
IChon which F JJ .hal,1 be required 10 pay as 01 result or Iny IllIulor)' requiremenu o( insurance Ind which F JJ would nOI otherwise. pursulnllo Ihe
lerms hereo(, be reqUired to pay.
(5) F/J will, where required Ind permilled by lu" upon requell or Ihe CUSlomer, file Sllle and/or 'nlerslale Commerce Commission
Cenitielles or AUlomobilc Liabilily Insurance coverlnalhe Vehicles. CUSlomer agrees 10 indemnify, ddend. and Jive F/J harmless rrom III cllims,
c:IUses or .lclion, suiu Ind damllU Ifising oUI or mine such documenu ror vehicles olher lhan lelled Vehicles.
(6), CUSlomer further .l,rees 10 rtJe.3st :Jnd hold FIJ h.:rrmlcu (ordc~lh or injury 10 Cuslomer. Customer's employees, dtlvers, p.l.ssenlers or
"SenlS, .triuna OUI or lhe ownership, mainlen~nce, USe or opera lion o( 1ft)' Vehicle leased or (urnished hereunder.
B. Physical D.mau.J!sp..2.!l1ilti.liJy"
The party dcsisnaled on Schedule A shall pay for loss or damage 10 any Vehicle subject 10 Ihe following:
(I) In the evenl F/J iJ desisnated:
I. F/J will pa)' (or loss or damage 10 each Vehicle in ucess of Ihe olmounlS specified on Schedules A EXCEPT (I) iln)' will(ul dilmagc 10
the Vehicle arising OUI or or in connection with Iny labor dispute; (2) conversion o( any Vehicle by anagentorcmployee or Customer which shall not be
considered Ihe(t wilhin the lerms of Ihis provision; or (3) lhe loss by thefl o( tools. larpaulins, accessories. spare lires ,nd olher such appunances,
Customer sh3.1l pay up to Ihe amount specified on Schedule A as deduclible, for loss or damage ~o any Vehicle. including relilled expenses, from each
oCCurrence Ind shall pay (or :all Ion or damagc ~o any Vehicle resuhing (rom :lOy perils specifically not .l.ssumed by Ff) herein.
b. Upon not less Ihln 60 da)'s prior wriuen nOllce 10 Customer. F/J shall have the right (I) 10 tcrmin31e any physical dam.J.ge coveralc
procured and maintained by F/1 and (2) hJ increase Customer's Physical Damage ResponsibililY 103n amount with respect loe3ch Vehicle equalto Ihe
agreed value or such Vehicle computed in accordance with Paragraph II :1.1 or Ihe time of damage or loss, and each o(the charges specified on Schedule
A. including those Haled in Ihe Mileage GuarJnty, if any, shall be decre:lSed accordinlly.
c. In the event F 11 !erminales physical damage coverJee, Cuslomer shall be obligated to procure and maintain physical damage coverage
.1Cceptable to F /J and each o( the charges sh3J1 be 3djusted accordingly. Cuslomer agrees to furnish FJJ eertificales necessary to evidence compliance
with this paragraph.
d. If Customer is obligated to procure and mainlain physical damage coverage 3nd fails 10 do so. or (ails 10 timely furnish F/J with
evidence of such coverage. Customer agrees to reimburse FI Jail ils loss. cosland expense resulting (rom loss o( or damage to the VehIcles or any vehicle
being used as a SubSlilute Ihere(or.
(2) In the evenl CUSlomer is so designated:
3. Cuslomer will pay ror aUrou or d;!.m:\~c In :\ny Vehicle or :\ny vehicle heing used:\$ 3 tub\liltlle IhercCor. including rclo3led expenses
aming (rom any cause, bUI Customer's liability shall not exceed the purchase price o( the damaged Vehicle computed according to the provisions o(
Paragraph II at the time or such loss or damage.
b. Customerfurther agrees 10 (urnish F/J with a pOlicy of insurance acceplable 10 F /J with Ff J as a named insured orendorsed ala loss
payee having a deductible amount no! to exceed the 3mOUnt specified on Schedule A, (ailing in which. FI J may oblain such insurance and add the cost
Ihereo( proral;!' 10 the charges (or the Vehicles.
C. NOliee o( Accidenl
Cuslomcr agrees 10 notify F/J immedialely upon Ihe ho3ppening of:lny accident or collision inVOlving the use ofa Vehicle by lhe speediest means
orcommunicalion available and 10 cause Ihe driver to make a detailed repOrt in person al F/Ys orlice as SOon as praclicable. and 10 properly render all
other assistance to F/J and the insurer that is requcsled by eilher or Ihem in investig3tion. defense of prOSeCUtlon of any claims or suilS.
D. Cargo Insurance
Customer agrees to release and hold Fll harmless from liability ror loss or damage to any goods or Olhe~ property in or carried on any Vehicle
whether such loss or damage occurs in F I J's racililyorelsewhere. Customer shall. at its sole expense, include F I J JS a named insured in any and ~lJcargo
or transporliltion or OO:ller insur;ance policies covering Customer with respect 10 any loss or damage 10 such goods or pr~perty. Cust~mer walv~s any
legal right of recovery against Ff) (or any such loss or damage. Customer shall reimburse F I J ror loss or any tools. tarpaulins, accesSOries. spare tIres or
olher equipmenl furnished by F/1.
E. Vehicle Thefl or De~truelion
If OJ Vehicle is 10sI or Slolen and remains so (or JO days a(ter F I J has been notified. Ihe leasc as to such Vehicle shall then lerminate provided all
charges (or such Vehiclc: have been paid to that dale and provided any amounfS due FI1 pursuanllo Paragraph JOB have been paid. Ftl shall nOllx
obhgaled to provide a Subslllule vehIcle during said JO day pCrlod. I( a Vehicle IS. in F /1'.1 opInion. damaged be:,'ond rep:ur. F 11. shall notify Customer
within )0 days after F JJ has been advised of lhe loss. Upon receIpt o( F iJ's nOlice th<lt the VehIcle: has been damag:d beyond repair. prOVIded all charges
for such Vehicle have been paid 10 Ihal dale and prOVided any amounlS due FiJ pursuant to Paragraph lOB her:~ihave been paid, Ihe lease as 10 such
Vehicle shall then terminale.
II. TERMINATION:
, A. Either parlY may terminate the lease of any Vehicle prior to expiration of its term on any anniversary date of its delivery date, Othc~ Iha.n t~e
anOlversary dale on which lhe lea~e term expires. by giving to the olher party allea51 60 days prior wrillen nOlice Orlts inlent to do so, IrtermIMatlo~ IS
C;{fectcd by F 0, Customer shall have the right, but not Ihe obligation, to purchase in accordance with Paragraph 110 all Vehicles with respect to whIch
terminal ion noticc has been given on the termination date(s). Ir termination is effected by Cuslomer, Customer shall at FtJ's option purchase 1M
accordance wilh Paragn,ph 110 all Vehicles with respect to which termination nOllee has been given on the termination dalc(s), .
B. In the evenl Customer shall become insolv.:nt. file a voluntary petlllon in bankruptcy, make an ass,gl'lr.'lenl {or the benefil of ercdllors. be
J.cJudicated J. ban krupt by any Court of competent jurisdiction. permit a receiver to be appoiRled ror ilS business. permit or su{(er .1 material disposition
"-
or lIS IntIS. lhe fuse of Vchiclrs Ihl1l1umlnlle, u the election of F I J. Upon ""flllen nOllee thereof IcnlloCuuomcr. F I J ml)l ,IIU Opl1on dcmanl't Ih.
Cus:omcr purchase ...ilhin IOdl)'1 of Icrmlnlllon an)' one or ,II of Ihe Vcruclcs In .1ccordancc .....'11'1 Plflgfaph 110 \l;llhoUI preJudice 10 Diner r(medll
F tJ mlY hive under ,hi, ACI<'m'nl .nd II I...
C. Bruch or Ddlull
(I) In the evcnl CUllomer bruc!1cs or II." dchull of Iny o(lhe provISions O(lhlS Agfccmcnl, F 1J moly lmmcdtllllrl)'. wllhoUI "OIICe Of deminl
llltc,pollenion of lhe Vchlclu,lolclhcr '*llh.a1l cGUlpmenl .Jnd ..cernaries Iherclo, ..nd FJ) shall be cnllllc:d 10 cnler upon 'ny premises where I'.
VC,hlcles may be .1nd remove Urne, fcu,nnr r,fuse 10 re.jell"c:r Ihe: VehIcles to Cuslomer until such brc1ch or ddlUlllS cured. '*'lhoul Iny o(such I"ion
beln& deemed In ael o( lerminalion Ind wllhoUI preJudice 10 Ihe olher remedies F/J m,a)' have and Cuslomcr shall continut 10 be liable (01 aU ch.allt
.aeClulna during Ihe periOd the Vthicln arc Itlllned b)' F/J.
(2) In Ihe evenl F/J I;ku possession or olrellln""1 Vehicle, and Iheluhall.lllhe lime or such Idol",olrelenhon, be In. upon or all ached I
such Vehicle .any other ploperlY.loads or Ihlnls o( value belonging to Customer or In the euslody or control or CuStomer. F, J IS authori/ed to lak
possession of such items and eilher hold Ihe ume (or CuStomer or place Ihe same In publIC: Storage (or CuStomer II CuStomer's eapense,
(,1) I( Customer's breach or dtClult continues ror 1 days aher wrillen nOlice h,t) been milled 10 Cuslomer. F'J may termlnlle the lease c
Vehiclts. Upon terminatilln. F;J may demand Ihlt C"slomer purchase wilhin 10 days o( lerminllion .:Iny or all or lhe Vehlel" in .u:eordancc wit
Par"lIph J J 0 Wilhoul prejudice to other rcmtdies FO m.y have under this Agreement 4nd .II IIW,
(4) Cuslomer shall flay FfJ all Fd's com ..nd e~pense, Including re.uon.:lble allorney's fees. Incurred In collecllng amounts due hor
Cuslomer or in en(')rcing Iny ri&h!S or P,' J hereunder.
O. In Ihe eVent Cuslomer (pursuant 10 P.JlIgr.Jph IIA) shall be required to purchase any o( the Vehicles. or should Fi 1 (pUr1Ulnl to Paragrap
118 or IIC) demand of Customer Ihll il purchase In)' o(the Vehicles. Customer shall purchase each Vehicle ror CJlh It orwilhin the limearoreSlid ro
in Original Value as shown on SChedule A.less lhe tolal depreciAtion which has accrued ror such Vehicle in accordance wllh Schedule A. Adjitionall)
Customer will. It the lime or purchase, pa)' F 11 for Ihe amounl o( any unc.\pired licenses. applicable tues.lncludlng personal propeny luuand fcden
highway use laxes. and Other preplid expenses previously paid by F I 1 (or Ihe Vehicles prorated to the date o( sale and will be responsible for Iny nics 0
use IU arising from Ihe purchase. CUSlomer shall have no obligalion or right 10 purchase any Vehicle as 10 which lhe term on Schedule A has eJ.pirec
12. ASSIGNMENT OF LEASE
This Agreemenl shall be binding on lhe p~Hlles hereto. their Successors. legal reprcsentatives and anigns. CuS!omct shall prornplly notify F.. J I
writing prior to all substanllal changes In ownershIp or any malerial disposillon oflhe assets ofCuSlomer's business. Cuuomer docs not ha'Ve lhe righll
sublease an)' of the Vehicles, nOr to iUslgn this Agreemenl or any inlerest therein .....ilhoullhe prior wrillen consenl or FtJ
13. FORCE MAJEURE
F I J shall incur no liabilily 10 CUSlomer ror failure 10 supply any Vehicle. provide a substitule vehll:le, repair iny dislbled Vehicle. or pro'Vlde ruel ro
Vehicles. if prevenled by a nation,l! emergency. wars, rials. fires. labor dispules. Federal. Slate, or local laws. rules. regulallons, shoru.ges (local c
national). or (uc1allocatlon programs, or Jny other cause beyond FI J's conlrol whelhcr existing now or hereafter. NOIWllhstandmg F !J's Inability t.
perform under such conditons. Customer's obligallons hereunder shall continue.
14. NOTICES
All nOlices provided (or hereto shall be in wrlliOg and m3iled 10 FtJ and Customer al their re:specli'Ve addrcsse:s set fonh abo~'e 0:' al ~uch othe
addresses designed in wriling by either pany.
This Agreement shall not be binding upon F I J until executed al its Latrobe Headquaners by a person duly aUlhorized and shall conslilute the e:ntir
agreement and undemanding be:lween the panics concerning the Vehicles. notwithstanding any previous .....rilings or oral undert.:lklngs. and in term
shall nOI hereafter be allered by an)' oral agreement or inform:ll wriling. nor by failure to insist upon performance, or (ailure 10 exercise any rights 0
privile:ge. but alterations, addilions. Or changes in Ihis Agre:ement shall be accomplished only by wrillen endorsemenl hereon. or amendment herelo. 0
additional Schedule:s A made a pari hereof duly excculed by both panics,
15, ARTICLE HEAOINGS in bold face I)'pe do not COnS!llule any part hereof .:Ind shall nOI be considered in the Inte:rpretation hc~cof
IN WITNESS WHEREOF, each or the: partIes he::e!o has caused these: presents to be duly executed the day and year firsl abo..e Wfltlen.
FiJ LEASING COMP....NY
MCS WAREHOUSING, DIVISION OF MCQUADE
(FIJI
By _J-f.~(,uJ~
Harold G. Williamson, Jr., V.?
(C~stome"
B)"; /.'
,
Name/Tille Thomas S. r.Ies
Dal':~
Witncs;Tl- oQs.. '^C:;:
President
D31t"
Witness:
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N~lwllh'l.ndlng Inylhlng In In, Agllen Ihe canlury. ilia mu'tuluy IO'Md:
Ill, 'orHd In.1 th~ Oflglnl! V'lue. W".I&ly OtprlCI.lIon .nd FI.ed Ch.ro.. per W..k If. blled upon m.nul'~IU''''S Quoted prlCI 101
...Ihlcl.. IS Of Ih, dlle 01 'JI'cullan by CUllom" of Ihls Scnldul. A.ln Ih, Ivent manufacturer'. quoted pnellor such vet'lIel,.s incrlUed
~"or 10 Ih, 0.,. of Delivery 0' In. vlh'CI." CUllome, lore.. th.1 'or lien SSO Incl.... in grlce (or '''Clio" Int'IOf),ln, following S"llI be
Increa,ed .ccordlngly:
Q!IOln'f V.lue
~'.!!!.lY...Q!lp"ItCI.rlon
Filled Charoe Pe, We.,k
15000
$.15
S.Ja
The amounts In columns. 9. 10 and 13 or this Schldul, A will be adjusted on Oalo 01 D.llvery
" ~i.bllily In,uranco CUSTQ/olER
Responsiblllly:
(F/.J/Cuslomerl
~imi(a: BOd'(y Injury $
BOdily Injury $
Proporty Oameo. $
OR Comblnod Single limit, $
MIl.!, ION
pel person
per lIccldenl
per accident
per accident
2. PhYSIcal Camage Responsibility by: F/J C S
-0-
deductible
Customer Xl
J
Fuel provided by
CUSTOMER
(F/J/CusIOmer)
In Ihe event F/J', cost for luel pro\lidad fOf vehicles listed on this Schedule sh-'ill be grealeror less Ihan thel amounl SIlllorln m Column 11
Cuslomer snail pay 10 F/J or receive a credit from F/J accordingly. F/J', fuel cosl, shall be developed by F/J in accordance wilh standard
cos! accounting praclicas. reponed and billed 10 Cuslomer.
4. Domicile Of rhe Vehicles listed on thiS Scnedule (Cuy)
HOMER CITY, PENNSYLVANIA
LATROBE, PENNSYLVANL~
5. SOf\lice end malnlenance location 01 vonlcles li:51ed on Ihls SChedulo
6. Vehicle(s) Will only be operated In the fOllOWIng Slales.
Fu.'Perm." PA, OH, IN, MI, MD, !<V. VA. NY NJ CT, NC. SC, GAL-FL, DE, IL, ~!A, RI, KY,
1 Milel5Ull yuoranlClo. CuSlomor gutHsnloos thai uach Of tho \lClhIClo~ doscrlbud on Ihl, Schodule A WIll be Opet8l0a a minimum 01
N / A . miles within each ---1iLA_ month perlod dtJflng which il 15 under tease ("Guarantee PeriOd")
Tne paymenl of Itle Mileage Rale per Mile shall be made 8S provided in Paragraph 9 ollne Agroement for mlle.s actually operated.
A Setllemonl cllhe mileage guarantee will be made al the end 01 each guarantoe peflod as follows; II miles 3ClUI111y operated during Ihe
periOd Jr8 less Ihan the miles guaranteed,lhen Customer will be billed by F/J and Cuslomer shall promptly pay 10 F/Jan amounl 8C1ual to
the difference belw&on Ihe numoer 01 miles guaranteed and Ihe number of miles oporated during the po nod. mulll~hed by the Deficiency
Aala per Mile speclliod below If the number 01 miles operaled during 1M periOd exceeds the numberol miles guaranteed,lhen CU:slomer
will receive credit lor 8n amounl aqua/lo; (')Iho dillerenco belween the milosacluelly operalad and the miles guaranleed. mulliphed by (21
the dIfference bel ween u,,, Mileage Aale per MIle ,pecified on Side One 01 thiS Schedule and the E:l:ces, Aele per Mile ,pecllled below
The Dericiency Rale per Mile ,hall be S N/A and lho excess Aale por Milo s!"lall bo S .._ N/A ___
Miles opera led by vehicle, to whICh the same Mileage Aale per Mile, Doficlency Mileage Rata per Mlle. Excess Mileage Rate rer Mlle.
number 01 mile, guarAnleed. and guaranlee periOd apply. may be averaged. If lhe lea,e of any vehicle IS lerminared dunng any guarantee
penad. the guaranlee shall t:le prorated lor ll'1al '/ohicte on Ihe basi, 01 tl'1e actual portion 01 such pOrtOe! II was ~Mer lea50
This SChedule A (jnC~~it}g SIde one 1.f.ieOI) is herobx made a perl 01 Ihal certain Truck Lease And ServlcdAgreemenl belween the partlos
daled a, ollhe th aay 01 . V . 1922-
,,;"
"
F/J LEASING CCY.;
I '- ___-_~
By t ~ ;~.~~.
/'
')
;ti'!~J
MCS WAREHOUSING, DIVISION OF ~!CQUADE
J>
By
0r.-<- t tJ (M-,
ICUSTOMER)
Thomas S. ames, President
Namo/Tillo
Haco!d r.. t'i~~iamsor., JL, V,p,
01110 S L'ij~___..
Exhibit D
~~)
Exhibit E
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. 0 Did you ever receive assignments, driving
assignments, from F/J Leasing?
A No.
o They all came from McOuaide?
A Yeah.
o Prior to your deposition today, did you review
any documents?
A No.
0 Did you review any papers to prepare you for
this deposition?
A No.
0 Did you review the pOlice report?
A No.
Q Did you review any pleadings or complaints
filed in this lawsuit?
A I don't know, There was a bunch of papers
mailed to me, but I don't know what they were.
MR. PRICE: They were from my office, They
were regarding the pleadings and discovery.
BY MR, DOWLING:
Q When were they mailed to you?
A I don't know,
Q Within the last month?
A I can't give you dates,
Q Did you review those papers in preparation for
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'your' deposition today?
A No.
Q When do you recall last reviewing them?
MR. PRICE: Can we go off the record?
(Discussion held off the record.)
MR, DOWLING: Back on the record.
BY MR. DOWLING:
Q In the last month, Mr. Blystone, did you read
any information or any pieces of paper concerning this
case, this lawsuit, or this accident?
A No.
Q You met with your attorney before this
deposition, is that correct?
A Yeah,
Q Did you look at any documents when you met
with your attorney?
No.
Do you recall the date of the accident?
I heard you say it about 20 times. No, I
A
Q
A
don't,
Q
A
Q
Do you recall what day of the week it was?
No.
Do you recall where you were coming from and
where you were going?
A I was coming from Philadelphia, I'm not sure
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'where I was going. Either home -- I'm thinking home, but
I'm not sure.
Q Would your driver log reflect where you were
coming from and where you were going?
A Yeah,
Q Do you recall where the accident happened?
A On the turnpike. I don't recall the mile
marker or anything like that. I could show you,
Q Which direction were you traveling on the
turnpike?
A West.
Q Could you describe the load you were carrying?
A An empty trailer,
Q What is the weight of the trailer that you
were pulling?
A I don't know,
Q You don't know what the weight of an empty
trailer is?
A (Shakes head side to side.)
Q What had you dropped off?
A I can't answer that with certainty, I don't
know. I don't know,
Q You're certain the trailer was empty?
A Yeah.
Q
You believe that you started out that day from
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1 'Philadelphia?
2 A Yeah.
3 Q Had you stayed overnight somewhere in Philly?
4 A Yeah, all night.
5 Q And you believe you were heading either home
6 or some other place?
7 A Yeah.
Q Did you have a time you needed to be wherever
you were going?
A No.
Q Do you recall what time of the day the
accident happened?
A No. I'm thinking it was in the a.m. hours,
but I'm not sure.
Q Do you recall it being daylight?
A Yeah.
Q Do you recall the weather conditions?
A I think it was nice out,
Q Was it clear?
A I don't --
Q Was it dry?
A Yeah.
Q Do you recall if it was cloudy or sunny?
A No.
Q Do you recall if you were wearing sunglasses?
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A
Q
driving?
A
Q
I wasn't wearing sunglasses.
Do you require any corrective lenses for
No.
Do you recall how much sleep you had the night
before?
A Not within minutes, but I spent the entire
night in Philadelphia.
Q Can you give me a ballpark on how much sleep
you required?
A How much I required?
Q How much you had the night before.
A I had to have eight hours.
Q Eight hours sleep?
A I was required to have that much.
Q You were required to have eight hours sleep?
A Yeah.
Q Did you?
A And then some.
Q The amount of sleep that you actually had
would be reflected in your logs, is that correct?
A Yeah,
Q Do you recall what time you awoke the morning
of August 8th, 1997?
A 7 o'clock.
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Q Do you recall that time you actually started
on your trip?
A No,
Q Did you drive directly from Philadelphia to
where the accident happened?
A I don't know. I might have stopped for a
burger, coffee, or something,
Q Would your stops be reflected in your driver's
log?
A Probably not,
Q Other than maybe stopping to get something to
eat and drink, did you basically go from Philly to where
the accident happened?
A I might have got fuel. I don't know.
Seriously, I don't know.
Q Other than that, did you drive directly from
Philly to the point of the accident?
A Yeah,
Q Do you have a radio in your tractor?
A AM-FM?
Q Yes.
A Yeah,
Q Was that on at the time of the accident?
A I have no idea,
Q The night before, when you were down in Philly
38
1 and stayed overnight, did you have any alcohol to drink?
2 A No.
3 Q Do you drink alcohol?
4 A No, Occasionally, but not very often,
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Q You didn't have any the night before then?
A No. Would you go out drinking in
Philadelphia?
MR, PRICE: Just answer the questions.
BY MR. DOWLING:
39
1 When I seen him, I started to stop, and the
2 trailer was sliding. The tractor wasn't really sliding
3 that bad, but the trailer was, I simply was running out of
4 room without running over this little white car. So my
5 actions were to hit the guardrails to let it help me slow
6 down.
7 And the steering tire on the left side blowed
8 out and it sucked me into the guardrail and I went up over
9 the guardrail instead of stopping at the guardrail.
10 Q What happened next?
11 A I crossed the eastbound lane and ended up on
12 the bank.
13 Q Did you hit any cars in the eastbound lane?
14 A I didn't think I did, but there was one
15 sitting there. I mean, there was a hundred thousand things
16 going on in one second, I can't answer that honestly.
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24 you traveling in the left lane?
25 A I wouldn't know,
Q Did you later learn that you did hit a car?
A Yes,
Q You don't dispute that, do you?
A No, I can't with certainty.
Q You can't dispute it with certainty?
A No.
Q How long prior to this accident happening were
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Q Do you recall at some point being in the right
lane and shifting to the left lane for some reason?
A Yeah, there was two -- I know for a fact there
was two flatbeds loaded with bricks on my right-hand side,
so I'm thinking I pulled in the left lane to go around them
because they was going considerably slow. They was heavy.
Q Do you recall when that happened, when you
shifted from the right to left lane prior to the accident?
What distance prior to the accident?
A No,
Q What speed were you traveling at when you
realized this white car had stopped?
A I'm thinking slower -- little bit slower than
the speed limit because I know the flatbeds wasn't going
the speed limit and I was going the same speed as them
trying to get back over in the right lane,
Q Do you recall what is the speed limit at that
stretch of road?
A 65, I think.
Q As you're traveling down the turnpike
eastbound prior to this accident happening, you're saying
you were going slower than 65 miles per hour?
A Yeah.
Q At any point were you going greater than 65
miles per hour?
exhibit F
10
1 I seen him go across the guardrail into the
2 eastbound side of the traffic. I did not see him hit the
3 car. But I did see him go up the bank, and the truck
4 started rocking back and forth, and I said. oh, my
5 goodness, he's going to upset. The truck did not upset.
6 It stayed up on all 18 wheels on the embankment.
7 I got out of the tractor-trailer truck that I
8 was driving because I have a phone in it, And I seen a guy
9 standing alongside the turnpike. He said he was working on
10 the north side of the turnpike at the house right there
11 like alongside the turnpike. And I told him, I said, did
12 anybody call the cops. They said yeah, he said I just did.
13 I said, well, I have a phone in the truck in case somebody
14 didn't call. He said they already called the state
15 police, I said okay.
16 I myself walked across the turnpike to the
17 eastbound side, and I asked the McQuaide driver first he
18 was all right, He said yes, he was fine, And my remarks
19 to him was, boy, you gonna get some high dollar tickets
20 now. He says, I don't care. He says, I said to myself if
21 I ever had a wreck, he says, I'm done truck driving.
22 I walked over to the guy in the car. I said
23 are you okay. He says yes, I said are you sure. He says
24 yes. I said do you need a rescue squad. He says, no, I'm
25 scared to death, but I'm fine. He said I tried to get out
.
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'of MtQuaide's way, but I just didn't have time to do it, I
said okay.
I walked back over to ask McQuaide -- well, I
walked back over to talk to McQuaide. And McQuaide asked
me, he said, did you see that car stopped in front of me.
I politely told him, no, I did not. He says, well, I need
a witness. I said, well, I'm sorry, I did not see the car
stop in front of you,
If a car did, I cannot say. I cannot say. I
can say that the Pennsylvania turnpike employees was
working on the guardrails on the left-hand -- in the
left-hand lane. They had cones up to protect them I guess
you'd say, and they had a sign on the back of the truck
with an arrow pointing to the right which means of course
get over in the right-hand lane before you run over
somebody.
They did not have no signs like. say, a half
mile or 1500 feet coming from the east to the west stating
that the left-hand lane is going to end. They did not have
nothing like that up. You don't know until you get right
there where the guardrail is being repaired.
By that time, state trooper pulled up, and if
I do remember correctly, he talked to the guy that was
working on the house, I guess, like I say, he was the one
that called the state trooper first in the beginning.
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, - - "
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Then the state trooper walked up to me and
asked me what had happened, if I seen what happened. And,
like 1 said, I explained to him I did see McQuaide go
across the guardrail. but I did not see him hit the car,
and I did see him go up the bank,
The state trooper himself asked me, he says,
what do you think happened. I said the only thing 1 could
say, if anything, is he'd have to be going too fast.
That's all I said to the state trooper. State trooper took
my name, my driver's license all that stuff. my phone
number. I told the state trooper if he had any other
questions that I could help him with, that was my phone
number.
And that was the end of my discussion with the
state trooper, the guy in the car, and the truck driver.
That was, you know, the end of that conversation, about the
end of the day, whatever you want to call it, because I
went on home, And that was the last I heard from the state
trooper or whatever.
Q Okay, Let me just rewind a little bit so I'm
clear on some of the facts that you're relaying here.
Initially, you indicated that you got on to
the pennsylvania Turnpike at exit 19?
A At exit 19.
Q When you got on, did you get on immediately
l~
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", .../
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'behind the McQuaide vehicle?
A No,
Q What happened?
A Now when I Bay immediately, I got on the
turnpike as tast as I could get on. It you would say
that's immediately, then, yes, that would be immediately.
Q You tell me. It's your testimony.
A What I'm saying is, I didn't have to stop.
You know, I got my turnpike ticket, and I put it in my
truck, and I proceeded to get on the turnpike as you
normally would do. You have to yield. McQuaide driver was
coming in the left-hand lane
I mean, the right-hand
lane, As he went past, and then the cars like in the
left-hand lane to go around McQuaide, so that let me come
on out into the right-hand lane, and then I followed,
Q When you got on to the turnpike, were cars
actually passing the McQuaide truck?
A Yes.
Q Now, you then get on the turnpike and you're
behind the McQuaide vehicle?
A Yes.
Q How long -- let me ask you this, How long do
you follow the McQuaide truck in the right-hand lane?
A Well, see, exit 19 is 247, exit 18 is I do
believe 244, 244, 243. So now -- but when I got on it and
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I was behind him, I can't actually say how many miles I
would have been behind him, because as him being already on
the turnpike and me just starting out on the turnpike, we
ain't running the same speed. I can't catch up with him
that fast, So I don't know how to answer that question.
Q Was it a matter of time before this accident
took place that you were behind him?
A Well, the accident happened between exit 17
and exit 18, so we have, what, two exits, three exits in
between, so it's like -- exit 17 is 236 -- yeah, 236, so
you got 11 miles in between the two exits from exit 19 to
where the accident occurred. So it would be like 7 miles I
guess.
Q So it's your math that from exit 19 to the
accident site is 7 miles?
A I would say roughly that area, yes.
Q Would this help you, the police report says
mile marker 2391?
A Okay, that would be eight miles.
Q During that eight-mile span, you're behind the
McQuaide vehicle?
A Yes. I'm in the right-hand lane, and at the
time of the accident.
Q He had moved over, right?
A He may have moved over to the left-hand lane,
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Liko 1 said, when he WIlS coming pilot 19, he WilD in the
right-hand lane. It he was to paoo another vehicle, 1
can't recall that. But at the time of the accident, he was
in the l'ight-hand lane. and then Illid, which made him into
the left-hand lane across the guardrail of course into the
eastbound side. He traveled all tour lanes, I guess you'd
say.
Q Before he goes into the guardrail and you're
traveling behind him on this eight miles, do you know how
fast you guys were traveling?
A I would say that I was traveling, to be honest
with you, between 65 and 70 mile an hour, Not a bit
faster,
Q While you're traveling 65 to 70, the McQuaide
truck is in front of you?
A He's in front of me.
Q How far in front of you? Are you right behind
him?
A No. I'm trying to figure -- I don't know how
to say the distance of what it would be. If I could point
at something, it's one thing.
Q Go ahead,
A Okay, maybe from here -- at least from here to
the guardrail across the road.
Q In terms of, say, yards or football fields, do
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you know how far?
A I would say 50, 75 yards. Not at 25 yards the
state trooper got wrote down, because if I was doing 65
mile an hour and I was only 25 yards behind, I'm not going
to get stopped when he hits his brakes, ~~ere's no way.
Q So you're traveling up the road, you're in the
right-hand lane?
A Yes.
Q Did you ever see the McQuaide vehicle put on
its blinker to go into the passing lane?
A No.
Q As you're traveling that eight miles behind
the McQuaide truck, are there cars passing you. if you
recall?
A I can't say it was, because nobody else
stopped, so I can't set here and say there was cars passing
me. No, I cannot say that.
Q Okay, Now then, prior to the McQuaide truck
when you see it go into the guardrail -- strike that.
In this eight miles, let's stay there a
second, when you're behind the McQuaide truck.
A Okay.
Q Do you see the McQuaide truck shaking or
driving erratically in any fashion?
A No, I did not see him lane change, back and
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forth, I didn't see him swerving allover the road, or
nothing like that there.
Q Okay. Then before the McQuaide truck goes
into the guardrail, do you ever see it put on its blinker
to go into the passing lane?
A No, I didn't.
Q In the eight miles that you're traveling
behind the McQuaide truck, does the McQuaide truck ever go
into the passing lane?
A As far as I can remember, no, he doesn't.
Q Now, you had testified regarding these
Pennsylvania turnpike employees.
A Yes,
Q What were they doing again?
A They was repairing the guardrail, what, a very
short distance from where the wreck occurred. My honest
opinion, I believe -- but I can't even say this to be
truthful if there was a vehicle in the left-hand lane
like a car, even a tractor-trailer truck or whatever, if
there was a vehicle in the left-hand lane and they happened
to see that the cones are setting up in the left-hand lane,
then somebody's going to move over to the right-hand lane
quick. I can't say I seen a vehicle in the left-hand lane.
Q Now these people, the turnpike personnel, do
they actually have a truck moving that they're putting down
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cones? What's going on there?
A They have cones set up to, like I say, to
block off the left-hand lane. They have a truck setting
there that they have a seat that they set on that drives
the post into the ground, and then they put the guardrails
up itself to put the bolt stuff in.
But at that time, like I said, they had a
turnpike truck with an arrow pointing to the right setting
in the left-hand lane inside cones.
Q Did you see that?
A Yes, I did,
Q So you have cones, and then the truck inside
the cones?
A Exactly.
Q And the arrow is pointing for you, for traffic
to merge right?
A Exactly,
Q Before those cones and before that truck with
the arrow
A Yes,
Q -- were there any other markings on the
roadway?
A No. That's what I couldn't understand. I
said usually doesn't make no difference, you're on the
turnpike or any interstate or whatever, you have a sign
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1 going to end.
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Q
Where was that in relation to the accident?
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How far would it be from here to that Front
4 Street left lane sign, right out there. that green sign?
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Q
50 yards?
MR. PRICE: 50 yards?
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THE WITNESS: Then I would say approximately
8 that far.
9 BY MR. DOWLING:
Q And it was 50 yards further --
A West,
Q West?
A Of the accident,
Q Okay. And how many cones did you see?
A Oh, I don't know, Enough they put them out
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16 enough to make sure they're surrounded of cones.
Q
So just enough to surround that one truck with
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18 the arrow?
A
And the people working in front of the truck,
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20 yes. I did not see a half a mile or mile of cones, no.
Q
Just enough to surround the truck and a few
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A
Exactly.
Q
Do you know how long those cones or truck were
25 there?
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driving your tractor-trailer going westbound __
A Yes.
Q -- let's say a mile before this accident, just
as you were driving on that day, and there were no other
cars on the road __
A Right.
Q -- and it was daylight __
A Right.
Q -. how far back could you see these cones and
this truck?
A However far it would be from once you come
around the turn.
Q That's what I'm asking you. How far would
that be?
A 300, 400 yards, 500 yards. I'll put it to you
this way, if this is the 3nswer you're lOoking for, you
have time to stop. My opinion.
Q When this accident happened, you said you saw
the MCQuaide vehicle go from the right lane and slide into
the left lane and then through the guardrail, is that
aCCurate?
A That's the way I seen it, yes.
Q Do you know why it slid from the right lane,
left lane, to the guardrail?
A No.
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Q Do you know from your own observations or
knowledge?
A No.
Q Prior to it sliding into the left lane to the
guardrail, did you see it bouncing or shimmering at all?
A No.
Q Do you know if the truck had applied its
brakes before it slid into the left lane into the
guardrail? Because you mentioned you didn't see the brake
lights.
A I can't sit here and say that, no, because
like I said, it's been three years or close to it.
Q It's a long time ago?
A Right.
Q Did you review the police report before coming
here tOday?
A Yes, when I got through the mail and I was
setting at home,
Q When you got the SUbpoena?
A Before that.
MR. PRICE: Your letter had the police report.
MR. DOWLING: Did your subpoena have a police
report?
MR, PRICE: No.
exhibit G
exhibit H
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STATEMENT OF KUIUU' SEYMQ!ill
On August 8, 1997 I was traveling eastbound on the Pennsylvania Turnpike. I
noticcd n tractor trailer traveling west on the Pennsylvania Turnpike bouncing back
and forth within its lanes of travel, approximately 100 yards away. It was obvious to
me that the tractor trailer was completely out of control. Other vehicles traveling
west were pulling off the road to get out of the way of this tractor trailer that was out
of control. The tractor trailer then crashed through the metal guard rail causing
pieces of metal to ny up in the air. The tractor trailer came into the eastbound lane of
travel and hit a passenger vehicle in front of me. This passenger vehicle began to spin
and I hit my brakes, which caused my car to spin around 2-3 times. The tractor trailer
hit tho passenger vehicle on the left rear. If the tractor trailer had hit thp, passenger
vehicle a few more feet towards the driver's door, in my opinion the driver would have
been killed. The tractor trailer then went up the embankment, partially flipped and
caught on fire. A vehicle driven by a woman behind me hit her brakes and almost
collided with the rear of my vehicle.
I was amazed that the driver of the car that was hit is still alive. This is the
scariest thing that has ever happened in my life.
~
, I talked to the driver of the tractor trailer when he got out of his tractor and the
driver stated "I can't believe I fell asleep."
There was no construction zone on that portion of the roadway and I observed
no vehicle in front of the tractor trailer that contributed to the tractor trailer losing
control.
DATED: iJ
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EXHIBIT No.L
6' - 'l- cJcoo
S.M. SIMON
Exhibit!
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that what you're asking?
o Yes.
A There was no stopped car in front of him.
o Following the accident, did you talk to the
driver of the white car that was hit, Mr. Fruciano?
A Yes, I did. I said something to the effect
of, you know, it was your lucky day today, because I saw
him get hit. After I talked to the police officer, gave
him a statement or whatnot, and just said something like it
was your lucky day, and he was pretty freaked out, pretty
shaken up, shooken up. That's really all I said.
o Did you talk to the plaintiff, Frank Fruciano,
about any injuries he may have sustained?
A No.
o Did you talk to the driver of the truck?
A No, I did not talk directly to the driver.
o You did talk to the policeman though, correct?
A Yes, I did.
Q Do you remember what you told to the
policeman?
A Pretty much exactly what I just told you, what
I saw and how I saw it happen. And the only added thing I
told him was one of the little tiny, tiny pieces of the
guardrail had flown up and where it landed put a little
dent in my hood. That's it. At that point I wasn't
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concerned about that.
Q I'm going to show you the pOlice report from
this accident. I'll show you page 4.
A All right.
Q Paragraph 2. It's the pOlice officer's
summary of his interview with you. If you could take the
time to read that.
(Brief pause taken off the record.)
THE WITNESS: This one, is that all?
MR. PRICE: Yes, that's just your statement.
THE WITNESS: That's pretty much what I just
said.
MR. DOWLING: For. the record, you had him read
the police report, which as I understand it, is the police
officer's summary, not a verbatim statement given by
Mr. Seymour. Is that your understanding?
MR. PRICE: Yes, it's not in quotations. It's
just what the police report states.
BY MR, PRICE:
Q Do you agree with the way the police officer
summarized your conversation with him?
A Yeah.
MR. DOWLING: Object to the form of that
question.
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o Did you ever make that appointment.
A No, I did not.
o Can you tell me what you talked about?
A Basically just what you asked me, what
happened in the accident, what I remember, if I read
certain things.
o Did you give a statement to Attorney Dowling?
A Yes, yeah. And then it was mailed back to me,
and I signed any corrections that I would make on it.
That's the statement, correct?
Q I'll show you -- we'll mark the police report
at Seymour 1, and we'll mark this as 2.
(4-page police accident report produced and
marked as Seymour Deposition Exhibit Number 1.)
(l-page typewritten statement, dated December
29, 1999, produced and marked as Seymour Deposition Exhibit
Number 2,)
BY MR. PRICE:
Q This statement, did you type that?
A No, I did not.
Q Do you know who typed it?
A No, I do not.
Q Was that sent to you by Attorney Dowling's
office?
A Yes.
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o After your conversation?
A Yes.
o In the third paragraph, the statement states
that: I talked to the driver of the tractor-trailer when
he got out of his tractor and the driver stated I can't
believe I fell asleep.
A Right.
o Then there's an arrow going up to that. Down
at the bottom it states: I did not speak with the driver.
I simply heard him say something to that effect.
A Yes.
o Who put the arrow in that statement at the
bottom?
A I did. I corrected that, and I put the arrow
as well.
Q As you testified, you never did talk to the
driver, correct?
A No, I did not speak to him directly.
o Where were you located when you heard him say
something to that effect as you put in the note here?
A I was at my car, where it was still from where
I spun out.
Q So you're still in the middle of the road?
A Yeah. And in relation to where I ended up and
to where he was, the truck was about here and I was right
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in front of it. After I had spun, I just ended up kind of
like right in the same vicinity. And he was still by the
cab of his truck.
o Let's do a little diagram here so I'm clear as
to where we're located. Why don't you draw the guardrail,
where the guardrail split, and then you show me where your
car was.
A There's the guardrail, the road, and I was
about here. And then up here on the hill -- I'm sorry,
right about here on the hill was him.
Q So why don't you write in there "truck."
A Truck.
Q Why don't you put your initials there, KS?
A (Witness complies with request of counsel.)
Q Okay. You indicated the line that is
unbroken, is that the guardrail where your car would be,
there's an opening?
A This is the line that is broken, yeah, this is
the guardrail.
Q Are these two lanes here?
A Yeah, this is two lanes and two lanes.
Q Why don't we write up here, this would be the
eastbound lanes?
A Yes.
Q Why don't you write that up at the top.
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A (Indicating.)
o He was next to his truck?
A Yeah.
o Was he off the road? Where is the road then?
A No, he was probably -- the hill was like, you
know what it mean, it's kind of like right up against the
road. So the end of the road would be along here.
Q Why don't you put "driver."
A (Witness complies with request of counsel.)
(Sketch produced and marked as Seymour Deposition Exhibit
Number 3.)
BY MR. PRICE:
Q Now, you wrote that you simply heard him say
something to that effect. Who was he talking to?
A There was a bunch of other people that had
stopped to help I guess, and there might have been -- I
don't remember. There were several people that had stopped
and were talking to him, asking him if he needed help.
Those are the people.
I wanted to say ambulance people, but they
weren't there yet. There wasn't time for all them to get
there.
Q Were you talking, at this point in time when
he's talking to these other people, are you talking to this
other woman?
25
1 A Yeah, at that point she was still kind of
2 freaking out.
3 0 Was she out of her car?
4 A Yes.
5 Q Why don't you put an X for where she was.
6 A She was standing right next to me.
7 0 Put a W next to that.
8 A (Witness complies with request of counsel.)
9 Q What were you guys talking about?
10 A That's when we were saying, oh, my God, da,
11 da, da, da, da. And she's saying what should we do. I
12 said we should probably call 911, do you have a phone. She
13 said yeah, and she gave me her phone.
14 I said call 911. She said I don't want to do
15 it. She gave me the phone.
16 Q How were you feeling right at that moment.
17 A I was very shaken up to say the least. And it
18 was, you know -- I don't know, I've never been in an
19 accident before so it was something I didn't --
20 Q When you called 911, you actually gave them
21 the wrong road?
22 A Yeah.
23 Q When you note here, I didn't speak with the
24 driver, I simply heard him say something to that effect,
25 what do you mean by that?
26
1 A Well, when they were all talking to him, I
2 heard -- this is what I heard. I heard I felt -. either I
3 felt sleepy or I fell asleep. Something to that effect.
4 And like I said, I was all discombobulated and whatnot, so
5 what he said, I can't recite to you exactly word for word.
6 He could have said I felt like I fell asleep.
7 I feel sleepy. That's what I mean to that effect.
8 Q But do you know, in fact, if he did say
9 anything about feeling sleepy or being sleepy for sure?
10 A All I know is what it sounded like I heard. I
11 wouldn't say he said "I fell asleep." I would say that I
12 heard him say something to that effect.
13 Q Do you know if he was responding to a
14 question?
15 A The guys were talking to him. They were
16 saying are you all right, you need any help, what happened,
17 what happened, man. And that's when
18 Q Did you hear him saying anything else, the
19 driver?
20 A After that, I remember hearing them talk to
21 him and quite possibly just saying, you know, whether or
22 not he was hurt, and he said he felt fine, just something
23 maybe with his arm. I remember him going like this
24 (indicating). I remember just looking at him out of the
25 corner of my eyes, seeing him going like that (indicating).
"
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o How many people were talking to the driver, do
you know? How many people were around him?
A Three or four.
o Do you know for a fact that it was the driver
who said anything about feeling sleepy?
A I was looking at him at the moment things were
being said because I was, you know, just kind of glancing
back and forth. I just happened to -- I myself wanted to
see who was driving the truck because I was kind of enraged
by the whole thing, felt like who is this guy, what just
happened.
I wanted to know what happened as well, so I
was constantly like glaring in his direction. I wanted
more information is what I'm saying, so that's where I was
looking, at him.
Q But he wasn't talking directly to you, he was
talking to these gentlemen?
A Absolutely, yeah.
Q And they were located almost two lanes away
from you?
A Yeah.
Q Now, in your police report, the summary that's
in the police report of your interview with the police
officer, does it say anywhere in there about the truck
driver possibly falling asleep or feeling sleepy?
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A That's just my paragraph, right?
o Yes.
MR. DOWLING: Object to the form of the
question. The police report speaKo for itoelf.
BY MR. PRICE:
o You can answer the question. Does it?
A No.
MR. PRICE: All right, that's all the
questions I have right now.
MR. DOWLING: Just a few questions
BY MR. DOWLING:
Q What kind of vehicle were you driving?
A Same one I have now, a gray Honda Prelude.
Q Did you talk to Mr. Price at all about this
case when he sent you the subpoena to be here today? Did
you talk to him over the phone about the case?
A No, I did not.
Q Did you talk to anybody from his office?
A No, I did not.
Q Now, when we talked on the phone back in
December, I then sent you a statement which summarized our
conversations, is that correct?
A That's correct.
Q And I asked if there were any corrections you
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master/servant relationship is ordinarily a qucstion for the jury. Jovner v
Harlevsville Insurance ComDany, 393 Po. Super. 386, 574 A.2d 664 (1990). The
justification for imposition to the master of vicarious liability for torts of a servant is
a policy allocating risk to the enterprise as a cost of doing business on the theory that
since the employer saw to profit from the employment of servants, he is better able
to absorb and distribute the loss than the innocent victim. Guffev v 1olmn, 563 F.
Supp. at 951 (E.D. Pa. 1983). In determining if a master/servant relationship exists,
the master's control or right of control is ke0he ~aramount inquiry is control or
ril!ht to control, whether or not you actually excrcise control. Shuman Estate v
Weber, 276 Pa. Super. 209, 419 A.2d 169 (lfl80). J
Under the lease agreement attached as Exhibit "C", item 7 DRIVER'S
provides in part:
Customer agrees to cause each vehicle to be operated
only by a safe, careful, properly licensed driver, ....
Upon receipt of a written complaint from F/J specifying
any reckless, car~ or ab~!y'~pd/inu nl'the
vehicle or any other incompetence by or of any driver,
aiid'requesting his removal as a driver of vehicle,
customer will immediately remove such individual
as driver ofvehicles....F/J agrees to assist customer
in developing a driver education and safety program...
The Defendants argued that a lessor of the vehicle is l!eneraUv not liable for
negligence of a lessee who operates its vehicle. This general legal principle is based
on the assumption that a lessor has no control over the conduct of the operator of a
4
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leased vehicle. Clcarly the above cited provisions of the lease agrecment providc an
unusual amount of control that the lessor has and clearly requires this matter to bc
decided by the jury. The Dcfcndant's rcliance on Jahn v O'Neil, 327 Pa. Supcr., 357.
475 A.2d 837 (1984) is misplaced. In s!l!.hn, the Court was not considcring the
question of whether a lessor is liable for the driver's negligence under the Doctrinc of
Respondeat Superior, which is exactly the issue here. Under the theory, the issue is
control or right of control, and under the facts in this case and due to potential
conflicting factual evidence, is clearly a jury question. The Court in Jahn was
examining whether there was a statutory basis for holding the lessor liable, which is
not what the Plaintiff is arguing in this matter.
Pursuant to the lease, F/J Leasing Company had the "right to control"
significant aspects of the operator of their leased vehicle, including to be a safe,
careful and properly licensed driver, to have the driver removed if they receive any
written complaint of reckless or careless driving and insist that the driver undergo a
driver education and safety program. In addition, under the section of the lease titled
"Notice of Accident", F/J Leasing Company requires the driver to make a detailed
report of the accident as a typical employer would so require.
In the Defendant's brief under Exhibit "D" the Defendant attached, in
addition to the lease agreement, an affidavit by the Vice President for Fox and James,
5
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Inc. alleging certain facts that are in direct contradiction to the lease agreements.
For example, Item 4 of the affidavit signed by Douglas Jessen is not supported by the
language in the lease agreement. (See deposition of Randy McQuaid attached as
Exhibit "E" @ page 20). Similarly, Item 3 of the affidavit signed by Douglas Jessen is
not supported by the lease agreement. (See deposition of Randy McQuaid attached as
Exhibit "E" @ page 21). At the deposition of Randy McQuaid, who was acting as
Corporate Designee for the Defendant McQuaid, Mr. McQuaid stated that he could
not cite any language in the lease agreement that supported Item 6 in the affidavit
signed by Douglas Jessen. (See deposition of Randy McQuaid attached as Exhibit "E"
@ pages 23-24).
B. Should the claim of punitive damages be decided by the court at trial at the
non-suit stage and/or decided by the jury.
Suggested Answer: Yes
A large, heavy tractor-trailer traveling at a high rate of speed is a dangerous
instrumentality that can cause serious injury or death. The manner in which
Defendant Blystone operated this tractor-trailer subjects the Defendant to punitive
damages. Punitive damages should be awarded because a driver of a tractor-trailer
traveling at a high rate of speed knows or has reason to know that his conduct may
create a high degree or risk of physical harm to another and deliberately proceeds to
6
Exhibit A
1roo
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-
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'8' _~ lf
Susan M. Simon, Reporter-Notary Public
Condenscltl'"
Dccember 16, 1991)
P~~~ J
,'~.."'~
STII'UL,\ TION
: It is hereby stipul~lCd by and between counscl
) for the respective panics Ih~t reading, si\,'I1ing. se~ling.
, filing 3nd cenification arc waived: ~nd thai all
l objections excepl a.s 10 the fonn of the question ~re
. reserved until the time of trial.
7 TROOPER RAP!lAEL CIIRISTOP!lcR. called ~s a
H wiln~ss. being duly sworn. Icslified a.s follows:
" i:x'\~IIN" TION
110 BY MR DOWLING,
ill Q \Vould you slate your name. occupallon and
! I: business address.
i IJ "Trooper Raphael Christopher. employed by the
,
'I' Pennsvl"ania State Police located 'II ~aS Center Road.
, '
III Newville. Pennsylvania 1124 I.
i 16 Q And how old arc you'!
!17 "I'm 30.
! IS Q How long have you worked for the state police'!
! II} A It will be six years in Junuary,
1:0 Q In what capacity arc you currently assigned'!
1:1 ,\ Parrol.
I~: Q In .-\Ub".lst of '9i. how were you :lssigncd'.'
: 13 A Patrol.
,:, Q What arc your duties on patrol'.'
':l "JuSt driving the turnpike. responding '0
? I ~~ . I
Page 4
acciul,,'Tlts. ili.o\.Joh:d vchll:!c.:s. any typc:s l1r mishaps on thl.'
I .. Pt.:nnsyl\'amJ, =umpikc,
3 Q And;Jart of your duties. haw you :m't:s;::gJ,[eu
4 acciuent:; In\'ol....ing [l.1c[or-trail~rs',1
A ~I;m::
Q Do you havc.: J.ny specialized :r:l1nmg :n
7 investigating Jccidents'!
S A I tooK .Jll advanceu course on J.Ccldalt ~Cl,,"tlc: at
9 the Acadl.:my This is after the initIal traming J.t :he
10 Academy.
II Q Do :;OU ha\'e any training in :lcc:dClt
I:: reconstruction'.'
A No. I don't,
(':.rage Commonwcalth of PC':'lnsyl\'um:.1 Polic~
] 5 A~cilk'Tlt R~ort produced and rnarkc:Li ~'i C:U::iropncr
: 16 Deposition Exhlbie ~umhl.'r 1.)
17 BY ~lR. DO\\.'l:SG
! IS Q Troopc:r, f ~how you whOle'.; m~kr:ti .l:~
,19 Christophl.':" Exhihit ~urnbcr I. Is th:u :l pnoro~opy of your
i:o policl.' ;.Iccicit.":1t repon?
:\ YC'i.:t IS.
Q WOL;;J you look through it [0 ~akl.: ';11:': :1''';
;
o
:]]
, I"
:i
"
::3 cornplc.:h':','
~~ :\ It .....~:':1S to hI.: I.:Omplt':I\..',
:5 Q So. ::nu \\-"L'rL' on UUly on :\ug~:oj! .~lh. : ~9~. is
P:lg.:o - Pag~ ~
Troopcr Ra hacl Christo hcr
I lhat ~()rrcct'.'
~ ^ Yes. sir. ( was:,
) Q And you responded 10 IhlS aceld<'t1I. is Ihal
4 comer!
5 ,\ l11at I S correct
6 Q The: infonnallon you have Iisled for Unll I.
7 the owner. the driver and the carner. where dill you ohlJIn
:i Ihat information'!
~ ,\ Okay. the o"ller was tak<'t1 off a n.'!llSlralion
IU card that was receiveu from the driver which IS ic1:nulicd
II hy a driver's licl.:ns.:. The carrier. WI.: can tnkc it from
J~ the plate itself being run or the owner's card also thal'i
I) located on the: end of Ihe lraikr,
I ~ Q What dO\:s carrier mean'!
IS A TItul'S the hox trailer. That's the second
16 unit of a combination.
17 Q The trailer part of Ihe lraclor'lrailer'!
18 A Right. there's IWo partS.
19 Q The speed Iimil on Ihe roadway where this
20 accident happened wa.'i 65 miles pl.'T hour'.'
21 1\ Ves. it was.
.,., Q And this UCcilh.."t11 happened on a Friday. IS
23 that correct'!
2~ A Yes. it did.
2: Q At approximately 12:0" p.m.'.'
A That's the time of the co.l1. yes. it was.
Q Did you arrive shortly after the accidr.:nt
j happt.."11CU'!
A I arrived h~re it says 1214. coupl!.: minutt:s
w lutcr.
1
4
6 Q DOt:s your accident report indicate;: that
7 Mr. Fruciano was takl,.'r\ by ambulancc to the hospital'!
S A Yes. it uOt:s.
9 Q And that's up there the upper part of puge 1?
10 A Yes. sir.
II Q On hox 81 it says: l1Iumination~, \Vhot docs
I: that mean'.'
I J A \Vithout having the actual chart to dtlciphtlr
I~ the codtls. I wouldn't be for sure, Given thtl timtl of day.
15 il would probahly be noontime. daylight.
16 Q Do you recall it being a clear. dry doy?
17 :\ I l.:an only go hack to what 82 and H3 says.
IS I..] You nt..-cd the graph for that'.'
19 ..\ If 82 is w~athcr. 7.cro being no adverse
:ll ~(lndition~. mt:aning it wa~n't raining or anything ahnormal.
:1 iLl~1 J. dear day. road ~urfacc would ba\'c to indicate dry
.,., ill ,\o\:alhcr with no adverse conditions.
M. Q Box S5 says: Description of property uamage,
:4 ,\nl! you have approximately 225 feet of guardrail','
~5 .\ 111al' s correct.
Susan M. Simon, Rcportcr-Notary Public
Condcnsclt! "
Page 5 i
Dcccmbcr 16. 191)1)
Page 7
Q Is i1wllhe pumon uf Ihe ~uardrjlllhal
1 ~r, Dly.tone crashed Ihrough'!
A That'" correct, That'~ mc:asurcc.l (rom Ilk:
4 pmnl he hilll to the :!Ctual distance he tToweled Ihro"llh
S it and wh<'t1 he eXiled lhe: same guardrail.
n Q You Indicated in your repun Ihal.fter
7 Mr. Dly"one crashed Ihrough the ~uarllrJtI and hu
H Mr, Fruclano. he drove up a hank'!
^ TIlat IS correct.
Q Can you Jescriht: this hank for U'i','
A Okay, TIle bank is at least six to eight 1~'Cl
11 high on an inclin~. Six to eight feet on an incline. It'"
I) appro.imately mayhe 15 feet off Ihe r",,"way from the while
14 line. hut six f~'Ct on the incline,
Q And ~r. Dlyslone traveled 40 ICeI up Ihar.'
:\ Approximately. yes, sir.
Q You cited 1.Ir, Blystone for nOI h."ing a
I H cum.'T1t log, is lhat correct'.'
J 9 A That is correct.
10 Q Turning to the last page of the police report
.:! I you interviewed a witness by the name o( Gary Ndf. is that
1.:! correct'.'
A Yt:s. ~ir.
J
"
III
II
I~
16
17
113
I~a
ps
Page 6 i
.
Q He indicated to you that he wac; approximatel y
25 Yi.U'Us behind the tractor-trailer. is that com'Ct'.'
Page X
A TIlat',j correct,
.:! Q And ~1r. Neff told you that he was traveling 65
3 miles per hour. is that correct'.'
.. A TIlut's what he .:iaid. yes. sir,
I 5 Q And you indica~d that while he was trJvding
n 65 milt:s pt:r hour. the tractor-trailt..T new by him at a
7 high ratt: of spa:u. is that correct'.'
X A That is also correct.
9 Q He also indicated that the tractor-trJiler
III seemed to he: changing lanes when he lost control of hiS
II vchicle?
11 A That is correct also,
I J Q Did he also ",11 you that he did not nOlicc
14 any other vchicle in front of the tractor-traild.'
15 A TI1Jt' s: also correct.
16 Q And you also intervit:wcd a witnr.:ss hy the nal11~
17 of Mr, Stlymour. is that l.:orrcct'.'
IS A Yes, sir.
I" Q DId ~r. Seymour lell you thai he could nol
~() recall noticing a vehicle stopped in the westhound lant:
21 ahead of the tractor.trallt:r?
b
A
I'm sClrry?
Q Did Mr, Seymour tell you Ihat he could 001
:!.4 rel.:all noticing a ve;:hll;le stopped in front oflhe wr.:sthnund
::'5 lanes ahead 01 the tr.Icror.trailt:r'.'
,.
-,
Page 5 ~ Pag.: :\
A lie ""U he Uilln', SIX. >oh,oleth., Wil.<
~ Sloppc:U.
J Q lie uiu nol'.'
4 A Did not"", . vehide <lOppeu.
S Q And you .lso n1C:>sun:d ,klu m:lTks. is 'h.t
6I.:om:ct'!
'7 1\ Yes. I did.
X Q And ,hey were 227 fee, of sklu m:lTk... IS th.t
I) l.:orrcct'.'
10 "Yes. sir.
II Q You inwC:lll:d those skId m:lTk.. wen: conSls","'
I ~ with a tr:lclor-trailer being au' nf conlrol and ,werving '"
I J anu out of lan<:s. is tha, eom:cr.'
14 A Yes, sir.
IS MR. OQWlf1o,'G, That's alii have. Thanks,
16 Mr. Price may have some: q~stion.'i,
17
18 BY ~tR. PRICE'
19 Q Trooper. good afr.crnoon. Agam my name: is
20 Snan Price. I'm here on b.h:>lf of ,he defond:>nts.
A Good afternoon.
Q Initially. I just wan. to ask some b.ekgrounc
23 questions regarding your education. Did you gr.1duatc (rom
2~ high school','
A Yes. sir.
~I
"
2:
Paec 10 I
- I
I
Q Where WllS thaI'.'
2 A Friends Select High School.
3 Q Where is that located?
4 A It's in Philadelphia,
5 Q Center City?
6 A 17th and the Parkway.
7 Q What year did you graduale from Friends
8 Select'.'
9 A '86.
IIJ Q After leaving high school. did you go on to
II further education?
I: A r went in the military.
13 Q What branch did you serve in?
14 A Thc Army.
15 Q How long were you in the Anny'.'
16 A About three years,
17 Q Wherc did you serve?
I S A I was in all over actually. I \vas in Georgia
19 for a littlc while. All statcside,
20 Q Did you have any specific role that you did in
: I tile Army. any specific training'!
" ..\ My MOS is military intelligencc. n Echo.
23 Q When did you leave the Army'.'
24 "I'm not sure of the exact year.
"':: Q Latc 'SOlS'.'
Susan M. Simon, Reporter-Notary Public
Condenscltl ."
Page 9 i: A
December 16. 1999
Page II
Oil. yes. yes. SIr,
What did do you afler lea\'ing the Army"
( wnrked for a canning company. Crown Cork anu
Q
J A
4 Seal.
S Q 1I0w long did you do ,har.'
I 6 ,\ About fivt: and a half years.
7 Q \Vhy did you leave that ~ompany I
I H ,\ I ~ame with Ihe sbte police.
I 9 <J DIU you go 10 tht: Acaur..-my'!
III A Yes. sir.
II Q Whr..-n did you go to the Acaucmy-.l
A It w.s '94. January,
I J Q How long was your Ir.ltning Jt th~ Acad.:my'!
II-l A Six monlhs.
IS Q Was it gt."tlcr.ll training or did you specialize
16 in any particular field'!
A \\'hat do you mc=an?
Il') Q In terms of. Wa.'i it just the normJI tl'J.ining
19 that cvcry stale trooper gOl:S through. or did you han~ J.ny
20 particular <.
21 ,\ Just normallraining.
122. Q In that ti.lining that you had Jt :r.c Acadl.-my.
1::3 did you ha.....e: das~s on accident rcconstr.:ctlon'.'
1::..$ A No.
Q \Vhen did you graduate from tb:: .-\cadcmy'.'
I~
17
I'"
-.
Pagc 12
.-\ It would have been June 24th that same year.
~ Q Since leaving the academy and until the timc
3 of this accident in August of '97. did you take any other
4 classes in accident reconstruction?
5 A I took classes in accident. not reconstruction
6 courses.
7 Q What type of classes did ycu h.\'e in
X .ccidents'!
9 A JLL~t advanced accident scene. accident sccnc
III management. dealing with identification of yaw marks.
II knowing the difference in the panerns of the tires when
12 they leave marks on the roadway. JLL,t the u a Iinle bit
13 more than they gave you in the Academy.
114 Q When did you have these classes'?
1<:; :\ I'm not.surc of the year.
II~ Q Was it a onetime shot. or did you go ~vcry
17 year to these classes'!
I'IS :\ It was a onetime shot.
II) Q Do you know how long it lasted'.' \Vas it a
110 weekend. one day. a week','
121 A Maybe thrce days.
I':::: Q Do you know where the classes were conducted'.'
:3 ..\ In the Nonheastcrn Training Ccnter. I think
124 onc of thcm was.
I" Q Was thcre any typc of litcrar.uc or books that
Page 9 - Page 12
Troo
Condcnseltl "
Paye 13:
Deecmbcr 16. 1999
Pa~e 15
'-.
I they I:a\'c you n:garding thiS training?
l A Yeah. there was literature. Just to keep you Z
l updated on what things look like. 10 identify, J
~ Q Did you have 10 lake any type of exam or ~
l anything like thaI'! 5
h ^ Al the end of the el3.'s. you did. h
1 ') Did you pass that eX3I11? 1
S ,\ Yes. I did. s
'I Q Upon passing thaI eX3I11. did you have some typel Q
III of eenifie:uion given to you? III
II ,\ l11ey give you a cenificate Slating that you I t
IZ passed the n:quircments of the course. I:
IJ Q Docs the Pennsylvania Stale Police have a IJ
I~ panicular group of troopers who specialize in accident ,I~
IS rcconsttUction '! J 5-
Ih ^ 1bey do. 16
11 Q Did those troopers ever gel involved in this 17
IS acciden!'! t 8
19 ^ No. they didn't. /19
III Q Why nol'! '0
:J A II didn't mcct the requirements of an accident /;1
~~ rcconsttUctionist. .,.,
:l Q Why is tha!'! I;;
~4 ..\ Meet the requirements'! i::4
=5 Q Yes. :15
n.'Call wh.:rc Ih.: Ii"t 11m" I ,p,;ke to hlln, I don't
Ihlnk .. I can't ...'Call whcrc I spoke 10 him first. I had
so much ~olnY on,
Q Do you n.-mcmhcr Mr. Fruclano I.1Uuny on a cdl
phone: at the: acCIfJcnt scc:nc',J
^ No. f don't 1'Cl1lI.'Tr.bc:r that,
Q Do you "'''''"",hcr lalklng to the dnl'er of Ihc
truck. Mr B1Y<itonc'!
A f do ="",ncr !;llklnY to him. I inlerv"~"ed
him. nut I don't n."Im."1T1ncr J l:onvcrsation mher Ihan \\'hJt',
on rhe acCitk."nl report.
Q Do you rcmc.",hcr telling ~Ir. Blystone Ihat he
should plan on getllng ,sued','
:\ So.
\fR. O{)WLl~'(j, Plan on what:'
\1K. PRItT Plan on yetling sued.
TIlE \vm:ess: No. I don't rcmc..'T11hcr S<lying
..
Page 1-1:
I
that.
DY \IR. PRICE
Q Looking at page J of your report. it indica(~s
that you did spoak wilh ()porntor Nwnhcr I. :VIr. Blystone. at
the accident SC""rlC'!
A Ycs.
Q And a1 that pOint in ttmc: It ~tarcs: Opc:r:uor
Numncr I st.:l.tcd he \\'as Ir.lVt:ling wc:slbound \Vhc..n h~ :lOliCco
Page 16
I "I don'l know. I didn'l make the
: requirements. They usually come out when iI'S a fatal
) accident. Other than that. they won't respond.
4 Q In blocks 8 of your repon il indicates that
; you arri\'ed at 1214?
o A Yes. sir.
7 Q Did you actually see this acciden!'.'
S "No. I didn't.
9 Q In block number 14 where it says "injured." do
III you n:call who that would refer lo?
II ,\ That would be Operator Number 2.
I~ Q Would that be Mr. Fruciano?
IJ A Yes. sir.
14 Q Do you reeall talking 10 him abOUI his
15 injuries'!
10 A I remember asking him is he okay. and he
1- mentioned. because he W3.' being treated by a medical
IS personnel at the time. I remember he lold me a couple
19 Illings was wrong with him.
:11 Q Do you remember what they were'!
: 1 ,\ He W3.' saying his back. his neck.
" Q The first lime that you spoke with
_J Mr. Fruciano. did you ask him if 11e W3., okay'!
:4 "That would have been -- well. I'm trying to
., recall where the first time r spoke to him. 1 don't even
Susan M. Simon. Reporter-Notary Publie
a .:ar Jhcau oi him stop in the lanes. Is th:u ~omc:'.'
1 ;\ That'.; right.
3 Q lbt..-n goes on to state: Operator Number I
oJ :-mltcu he [ht..'Tl applied the brakes. and at that point he
5 started to slide','
6 A Ycs. sir.
7 Q Is this what ~fr. 81yslOnc told you at the:
S Jcddt."nt .'~ccnc'.'
I) :\ Yes. sir.
10 Q Did you e\'er do anything to try and nnd out
J I who was the: car that stoppc:d in front of Mr. Blystonr.:','
12: ,\lR, DOWU:o.:G; Ohjr.:ct to rh~ fonn. You'r~
13 assuming there was a ~ar th~rc.
14 DY \fR. PRICE,
15 Q Rd\:rring to pag\! 3 of your report when: it
1 ti indical~S that Mr, Blystone: told you wh~n h~ noticed ..L .,;:.1r
Ii :Ulcau of him stop. Did you e\'~r Jo an}1hing in tenn.. of
I S trying to in\"t:stigat~ who ''''as in Ihat car'.'
19 ,\lR. DO\\'U:o.:(i: Oh,it.'ct to tht.' fC!rm.
':0 01' ,\lIt PRICE:
Q You can answt.'r,
:\ There was no ~\'idcn..:e of a car. I may nan.'
':3 asked cmerg'l.'ncy personnel at (he: ...cenc or thl.: witnr:s"Cs or
anyhmly do~ [0 Ihr: scr:nr: if Ihr:y ",,-'Cn J ve:hicle: in tr..:
lanes. hut rht.'rc WilS no t.'\'idence: 10 ~JY then: Was J e:..:r In
:1
"
:4
)':5
Page 13 - Page III
Troopcr Ra hacl Christo her
P~ge 17 i
Cundcnscll' '"
Dcecmber 16. 1999
P~ge 19
lho lano. so I prob~bly didn'l follow up on Ih~l.
: Q Do you recall who", Mr. Blystone wa.s wh.:n you
) nm eommunie~lCd wilh him'!
~ ,\ No. I don't.
~ Q In a year. how many aceid.'Tlls do you
" inwstl"atc'!
7 "Couplo hun<lred e~sy,
~ Q I'or year'"
I} 1\ Ea.'\y.
III Q On p"!!e J of your repon you indie~lo thaI ,ho
II pallem of Ihe lire marks arc eonsisl<.'Tl1 wilh Unll Numhcr I
11 being out of control and swerving in and out of lanes.
I) First of all. whal lanes arc ynu reforring 10 there'"
I ~ "Lane of lravol.
15 Q Easlbound or the westbound lanes'"
16 A It would"" Ihe ",,-<tbound lanes,
17 Q Would Ihal be once be had --
I S MR. DOWUSG; I'm sorry. you said ca..abound or
J l) westbound'.'
20 TIlE W1DiESS: It would be wcstboum.J. I'm
21 sony.
21 BY ~tR. PR1CE:
Q Wore there any skid marks in ,ho easlhound
")
24 lanes?
25
I'm not sure.
"
Q
:: lane?
I
Page IN:
Where were the skid marks in the westbound
3 " l1lt:y were coming from n they would he coming 3
~ from the point of the tires locking up or losing traction I ~
5 leailing up to and Ihrough Ihe guido r.lil. 5
6 Q Arc they denoted anywhere on your diagrJrn nn I 6
7 page 1'.' I 7
S A No. they're not. I S
9 Q Do you know what l:mc of the westbound lanes I 9
III those skid marks would have hexn in'! 10
11 A Bmh lanes. II
11 Q Both lanes'! 11
13 " Yes. sir. 13
14 Q In tht: driving lane and in the passing lanr.:',' 14
15 A Thr.: (eft and right lanes. ycs. sir. 15
16 Q Whl.'T1 you indicate that the pattcrn of thr.: tin: 16
17 marks arc consistent with Unit Number ( hcing out or i Ii
IS control. what do you ba."iI.: that opinion no} i IS
19 A [ don't undcrsland your qucstion. 119
:0 Q Excu& me'.' :0
"I A You're saying I'm basing u "I
,
" Q You indicate: that the pattern of tht: tin: i""
,- marks are consistent with Unit Number I bdng out of I"
-> .>
,
14 control and swc:rving in and out of lanes. "4
I;.
:5 A Right. TIle tires losing tr:lction. thc:rc will I.='
Susan M. Simon. Reporter-Notary Public
he.. Itl, like an S shape gOing ~roS$ both lanes.
:! Q Wen: they .,kld m.JJ'ks from Ihe tractor or from
J Ihe Iraller?
-l 1\ I couldn't determine that at Ihat poinl.
5 Q You could no1'.'
t'I ^ No. I couldn't.
7 Q So do you know If Iho :r:uJer was out ..I'
8 control ur Ihe tractor was OUt oi ~ontrol'"
q ,\ I ~Id Umt I, the whole comhinalion.
10 Q You Ihc..'T1 go on to say :hat no vehicle dehns
II was located al Iho pOInt of impac:. Is Ihat where Unil
I:: Numbcr I would have struck l'nit Number 2','
J J A ll1at is cornet.
14 Q And would that meJn that there was no glass or
I S anything on Ihe road':'
16 A Whrn I got there. Jim \\:.1.S going on. If
17 thcre was some. it could have nt.'l:n tramplcd on, it could
I K have hexn n..'moved. I only pUt dO\lr11 what [ SCl."O.
19 Q Do you know if thl:re \\:a.~ .:lt1y debris from thiS
~o accil.h:nt','
111 A I'm sure there had to bc. bUllike I said.
~: whcn [ gOl there. so much was gOing on. The road wa..;
1:3 jammod up. and there could ha"e;,tXll a 101 more. [didn',
,:4 ....'C it. I didn't have time to get :t,
i::.~ Q In hox S9 you Indicate '.'!olations indil.:atr.:d,
Page 10
And you \\oTOtc "unlawful actt\'ltlc:s." and Ihen what dO\:s il
::. say underneath thC::1:','
A LE.. log not ~um..nt.
Q LE.. okay, Old you actually look at the
logs'!
A Yc:s. sir. The logbooks. yes. sir.
Q Did Mr. Blystone !w..e you (he logbook to look
ill'!
A I'm not sure how I got It. but r looke:d at thl.:
logbook. Whether he ga\'c it to mc or whether I ask~d tum
will he go get it. but it Wil.'i gl\'~ to me:.
MR. PRICE: Thanks. Trooper, Thilt'.; all the:
questions I have.
OY ~1R, DOWl.IS(i:
Q A few morc que:!..;uon:, TIle stretch of roadway
where this happened. would you describe thJl as stiJlght.
I.:urvy'.'
A RCJsonahly ..traigltt. It' c;; nor like In S
\.~urv~.
Q MR, I31ystone said that tbae hud ba:n some
construction going on. lhat :.hc..'rc wa'i a merging from one
bne lo the next. Did you ob~r\'t: thal'.'
A I Inr.:an. if there was l.:onstnlction. il would
hil\'l: hc..-cn uepil.:tl..'u In bineK 34. resultmg in l.:onstrul.:t1(~
Page 17 . Pag~ ~O
"'
Pagc 11 :
pattl.:m. lltat imli..:alCs zero, :iO t.hcn: Wil.'l no construction
: LOne: lbcn:.
J Q You wen: a.sked how many ,",eilk'llts you
~ InveslIgac.: a year. and Ilhink you "",d a hun<ln:d or
S hundn:tls'.'
o ^ Right.
7 Q How many accidl."tlls do you Invcstigate a year
S when: a tracror.trailcr crashes through a ~ltjc iJil into
'I the opposite lane and collides with anOlh\lr t:ar'"
III ,\ lIave I done'!
II Q Of those a year. yes,
I~ A Maybe"
IJ Q Is it much less'!
14 ~R. PRICE: Object to the form. Go .mC:.llt.
IS TIlE WIn/Egg, Yes. much less. If I can
Ib darify. wh"" I say hundreds. I've been on hun<ln:ds of
17 accidents myself. I'vc at least investigated at lea.st 75
IS 10 a hundred myself. I've b....'ll on inveslIgations quite a
19 few morc.
:n BY MR. DOWLt:<G,
: I Q How many tb.t you personally investig.ted were
" Ir:tetor.trailcrs c,"shed through the guilk: ..Ill into the
:3 opposite lane and collided witb another vehicle. . year'.'
:~ l\ One or two.
:5 Q So this is an unusual typt: of an JccicJ~nt'.'
Page 22 :
~lR. PRICE, Objeel1on 10 the fonn.
: BY ~R. DOWUSG:
j Q Is. that a fair stateml..'T1t'!
~ A Unusual. yes.
, MR,DOWU:<G, Th.nk you. Th.t's all I have,
o
7 BY MR. PRICE:
M Q You indicated that anr.: or two timc:s per year
9 you will investigate accidents where tractor.trail~rs go
10 through a guardrail?
II A That I b.ve. yes. sir.
I Z Q How about the other troopers'? Are there other
13 accidents like this that arc reported throughout a year','
14 r\ I'm sure thc=re arc, My patrol zone. \\ie kind
15 of k<'Cp abrea.st of where the hot spots arc. what type of
In accid~nts happt..'T1 at these hot spots. \V'~'ve only u this
17 year. I don't rcm(.mh~r any going through. Mayhe one or
IS two, That's ahout it.
19 Q Trooper, if there was a construction lone up
10 ah~ad and the area of the accident is wh~re people arc
:1 merging into one lane or the olhl:r. \\ioulu you .'itill Ul:ntlle
~~ construction zone on your report?
_~. :\lR. DOWUSG: Object to th~ fonn.
:-t 'nm Wtn.:ESS: Ask thl: question Jgain',l
:5
Susan M. Simon, Rcportcr-Notary Public
Condcnsclll ,"
Dcccmber 16, 1999
Paye 13
OY MR. liRa 'E.
l Q Mr, Blystone teslIlied th.tthen: wen: si!l1ls
J that a construction 7..one was up ahead and that there WCI\:
~ sib'llS that the cars sbould merge ..
l A Okay,
o Q" to the right.
7 A Okay.
S Q Su that it W:l.'i just .. thc area of the:
\} accident W:l.'i just whcrc the cars were mcrgin~ 10 I:nter the
110 construction lone,
III My question is. if that W:l."i the SCl."T1ano.
I: would you denote construcUon lOne or nof.'
II 3 ~lR. DOWU:<G, Object to the form.
14 TIlE WlnJESS: If then: was a construction zone
15 in c1o"iC proximity to utis accidc:nt. thl."O I would have to
16 put a construction zont.: indicated, But the construction
17 zones an: erected with at least a mile or (wo distance;: for
18 cars to hegin to change lanes. It wasn't in this
19 particular arc:!. so I couldn't put construction zone
:0 exactly.
:1
~tR. PRICE: No more questions.
~1R. DOWl.I:o.;G: I may have anotht.:r one.
"
,-
_J
Z" DY \1R. OO\VLlSG.
! ::'5 Q On pagl: 3 o( your report. Trooper. where you
Page 14
I interviewed Mr. Blystone. the operator of the
l tractor-trailer. did he mention in that interview that
3 there was a construction zone'!
~ A No. he didn't.
. Q Did he mention that cars were merging from one
6 lane to another'!
i :\ No. he didn't.
S MR. DOWLING: Thank you, You're done.
9 (The deposition was concluded at 1 :06 p.m.)
10
II
I:
13
I~
15
10
I'
IS
1~
:0
:1
"
:3
:~
.':5
Page 11 - Page 24
25
COMMONWEALTH OF PENNSYLVANIA
SS
CO~~Y OF DAUPHIN
I, Susan M. Simon, do hereby cer:ify that before
me, a Notary Public in and for the County and Commonwealth
aforesaid, duly commissioned and qualified. personally appeared
TROOPER RAPHAEL CHRISTOPHER
who was then by me first duly cautioned and (sworn, affirmed) to
testify the truth, the whole truth and nothing but the truth in
the taking of (his, her) oral deposition i~ the cause aforesaid;
that the testimony given as above set forth was reduced to
stenotype by me in the presence of said witness and after~ards
transcribed by me or under my direction.
I do further certify that said deposition was
taken at the time and place in the foregei~g caption specified.
I do further certify that I am net a relative,
counselor attorney for either party, nor am I otherwise
interested in the event of this action.
IN WITNESS WHEREOF, I have hereunto set my hand
this 11th day of January, 2000.
NOTARIAL SEAL
SUSAN M. SIMON. NotllY Public
HarrisculQ, !J~~~~i:1 CQurrj
My Ccmmis:!crl :.'Cr:irc3 iJet. 30, ~002
..-- .-.....-_. .--
-;
-y' <
/?t';zz-;~ "',1 CCf1~~
Susan M. Simor.
Reporter-Netar:, Public
The foregoing certification of this transcript does not apply to
any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying reporter.
. ,
. .N I A
_.@
COMMOf4WEAI.TH 0" PENNSYLVANIA
POUCEAC~DENTREPORT
RLI'ORIAlILI IClH .IW'OftT*I!I::J
--
IlQI,1REnlIl00\l0lLA' .HilTl
....;. . . ~ ' .
'.. PCXJCS:lII;ORMATlON
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ctl._#f'~. - ~iNFORMAT1CN
,..-- e. I '0, DAY WUK
: 0A~___9_ --=ce:~':l . ~\
In. rlEOF t2.MJUEIlR
t-~!. _-1Q.O~ ,. -1 Qf~S do
1).' KU.ED!4..1Nl\.RE.D 1~. PAN' PROP ,
_ c).. \ ACCUNf VliN!1
i U'.CIJ~KlvtT08! I" vtHIC1E DAMACit;
IRODw'tD FAOUTtESCEliE" I Q.,IO'': lR.III' 3
l.Hf' IHT: '.lICH'
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I ., lhl H i 't ",I H ~ I I 3.SEVERC UMT 2 . c;r .J,A CONSTRUCTION
I '
,..~ 1'1 .. '11 PEt6"<<XJt '--'---.- Z01le
UATERlMI Y N I ~ I rl'flOPER1Y 'f ' tl )l'
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OUT_Are"" ~~~~o.O':'
; :'!Li-...aA~ CO.
~..t;l"~.e"'~ ?-O \~O" \,Q.::'l
cz. CITY. STATE
'ZJ'COIIE ....A"\ ~~ f'I\ '0;;\..1'50
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_ PONT \\ . SfAIUS 'il'l LIJ uS
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CENTER fOR HIGHWAY SAFETY
Exhibit B
Kurry Seymour
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~(Q;~V
Susan M. Simon, Reporter-Notary Public
Condensc/tl'"
Febru
,..
:
J
4
l
.
7
Page 3
I S
I,.
110
I :~
IIJ
114
II'
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117
liS
19
1:0
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Snl'l:l.\nO\i .
It " herchy '"pul'll:~ by an~ bc:tw",n cOUllsel
for lhe: re'pcc!l\o p3l1i" th.1 /'Coding, ,igning. se:>lin~.
lihng ano cortllieallon 3I'C wai,'o~: anothat all
ohj.'Cllon. exc.:pt J.' to lhe fonn of the qucstlon are
n:""r\'e~ "nul the: t,me of Inal,
\lR, PRitT In Icrm' of the ohjecllon,. we'll
havc th~ nurmal slIpul_1tlOn... for nhjcl;tion:i.
Kt'Rln' SEY\tol:R.l.:albJ :1-.. a witness. being: duly
,worn. te.auied 01.-, followlii:
EX,\\t1SA no~
i::.a
):5
BY \fR, PRlf'E
Q ~fr, ~ymour. ii's Kurry. ~om:c1'!
A Ycah.
Q ~I.y I call you Kuny'.'
A Yeah,
Q In III ally. I just want 10 thank you for
responding to our deposition notice and to our subpOl:J1a.
As you know. there's a mOlor \'chich:: accident that took
pIOlCC. ami we're just trying to collect facts from the
witnesSc:s md the various parties a.\Ii to whm took jJlacr: on
this dOlY,
Tol.i:J.y wc're here fon....hat's c:J.llr:d a
dcposItion. I brucsS my first qur:stion is. haw you ":'.'cr
ht:t.'fl d~po~d hdore'!
~ I ~~ ~,
Page ~
.-\ So,
Q Ok.:!.}', A dc:posillon is nothing more than J
3 fancy \""orc for quc:stion and JrtsWr:r.
~ I'm going to st:m orf. I'll havc qut:stlOns
- for you. :\nome:y Dowling may follow with some questions
r, Ollso, You St:c: [hilt we ha\'t: a court stenographer hen:.
- She's going to type: down all of my questions and all uf
S your responsos. Okay'.'
,
I 9 A Okay.
10 Q With that in mind. thert: are some ground rules
J I to milk!.: he:r life e:.:J.sier. Initially, we don't \"'ant to talk
I" over each Q[hc:r. Can w(: 'lhrrl.~ to tha1'.'
1'1; A Sure.
I ~ Q Se:conuly. make all of your responses vernal
115 he:cauSt.: .,hr: COln't the t.Jkc dm\11 [he: shrug of a shoulder or
I ] (, the: shui<~ 01 J hr:au. Agn.'t:tl'.'
: 1- A Yes.
liS Q And that's hOln.!. We'll remind you. hut that's
119 a hard nne nccauSl.: we do that naturJlly a.'i we talk,
1:0 An: you J\"'are that you're under oath touay'.'
21 :\ Y.:ah.
i~.:; Q I.., the:-.: Jny reason Ih:!! you could nnt gi\'c
I"~ truthiul tc"Umony toUOlY?
I:.: ..\ ~n.
115 Q ~fcJic;lti(1ns. anything'.'
Page I . Page ~
February 9, 2000
Page 5
Condensell! "
Page i
our
1 ,\ No
l Q You're nol . Pill1Y llllhlS lawsuIt. You're
) ,u,t J wltncu
~ ,\ Urn-hum,
~ Q So you ha,. a nght. If you so <l<:slre. 10 read
. Ill.: lran""npl and mak. sun: lhat .v.ry\h,"~ IS Iyp<d do,",,,
tile' Wol)' that you lcsttfic:d here today
\ Okay
IJ Or ~mu I;~n just tn.1~t our 'itl.:nographcr thai
10 ..tlf.:'1l tY1"= C\'C1j1hm\J down ..:nrrcctly. and you can watvc
II ,hall'" That's your chou:.,. What would you Iik. to do','
,\ IllUst Ihal she's doin~. greal joh. I'm
I) ,un: sll.:', hco:n wllh Ihe company for a while and all that
I. ~o<><l Sluff,
" 0 V.ry good. Kuny. how old arc you','
Ih "I'm ~ol.
17 l.l Whal is your hinh dale'!
I~ A August 151h. 1975.
19 Q An: you marricd'!
1\ No. 11m not.
o Arc ynu singlc'!
,.\ As m not married'!
Q 1 guc:ss so. That's a silly question.
.\ As in not married. y~s.
Q Do you hav~ any kids'!
~
'I
I:
:u
:1
,.
..
oJ
:.
=~
,\ No.
: Q ""bcre do you currently reside'?
) A Morg:mtown, West Virginia.
. Q What is your address there'!
5 A 1261. Apartment I. Stewartstown Road_
o ~lorgantown. West Virginia 26505.
Q Stewartstown. how do you spell tha!'!
s A S-t'e-w-a-r-t-s-t-o-w-n. It's all one word.
9 Q Do you reside with anyone there'! Do you have
10 roommates or anything'?
11 A I have a roommate. yeah.
\: Q Have you ever been convicted of a crime in Ihe
I) past ten years'!
14 A No.
15 Q Morgantown. as we talked outside. you're al
In the University of West Virginia'!
17 A Yes.
" Q Can you tell me what you're studying'!
19 t\ Music education.
=11 Q You indicated this is a brraduatc program',)
:1 A Yes.
..., Q Where did you get your undergraduate from'.'
::3 1\ There as well.
=:.. (J What year was that'?
" A This past December. '99.
Susan M. Simon, Rcporter-Notary Public
Q \\ ll..t W;l.-; th.lt :n,'
: ^ ~Iusu: edu~:mon,
) Q Wa.s Ihal a 0 .\,"
.a ,\ Y~s
Q Your grJdWtA: prOVJm. is that J master'.; or
n for J doctol'3tc',l
A ~n. It'".1 mash:r'".
;.\ Q It Will he:.1 ma.'\tcr', In musIc ~ducation','
IJ ^ Ycs,
10 Q IInw ahout 10 tenns of l."TTIpluynh..'tlt. arc you
i II working anywhere nght now"
: I: A I leach pnvatc h:ssons for th.: university, I
! IJ dn work (or the Unl\'(~lty. and I do ha\'~ an assistantship.
: 1.1 w that's consilkred an I.."tnploym.:nt,
! 15 Q And you h::1ch percussion instruments'.'
Iltl A Yeah,
11':' Q Is it cverything. drums','
! IH A E".rythiog prelty much. ycah. We have a re,1
i 19 hlg world mush; program a.... wc;:U JS \\o'hat you lmditlonJlty
!:o think of as percussion, World mUSIC program. you know.
i:1 away from the traditional orchcstr.ll music and all that
I:: stuff..;o"
.:3 Q Kurry. how about in terms or bemg J liccn~d
':01 Urm:r 10 PI.'tlnsylvJma.. wht."n did you get your liCcr1S4..",1
.... :\ Actually I :un a Iicl..":1~d driv~r in West
Page 6
PageS
I Virgi01J, I ch:mged my licl..":1Sl.: to W~st Virginia becau~
: msurJnc~ W:1S a lot cheaper,
3 Q So cUrT'l.'Tttly you're IicalSl.:d 10 W~st Virg:inia'!
! 4 A Ye,h, I did that in '9S. I changed my
5 driver's licl.1lsc,
o Q Did you grO\l.' up in Pennsylvania'!
,\ Yeah. I'm from Phtladelphia onginally. ,nd
S thl.'11 my parents moved to Reading.
\) Q You were horn in Philly?
III A Urn-hum.
II Q When did you move to Reading'!
1 ~ A My parents moved \..'hen I wa.;;; 8. so whatc\'cr
13 Yl..'ar that would he'! 6 'wmething.
I~ Q Did you go to high ::;chool and everything in
15 Rcading'!
16 ,\ Wilsoo High,
1-::- Q How ahout when you first got your license.
IS \,,'hcn was thul','
19 A ll1ut would havc ha.'11 -- let'."; ~~. when I wa~
\:0 In. so '90, 11m sorry. that'::; wrong. I'm terrible at
,
1:1 mOoth. Whah.:\'cr it works out to he. I Jon't knov.',
I:~ Q \\'11l..'n you were 16 though','
1':3 A \'vh;n I \\ras 16. YC:J.h,
,:... Q The plaintiff in this math;r. his name is
!:5 Frank Fruciano, Do you know ~lr, Frtll'::lano'!
Page 5 ~ Page X
Condcnscill
PJ~C 9 ;
" No I rcau hi, name:m thl: \!u1 illY .J\~ 11''''. I
: .nu I ....w him allhe ,",ellk'lll 'llIal', .111 kllnw 111m
Q Oe(on: lhe acCII!.'ll1 winch wa, "U~'I Klh of
J 1997. had you known Mr, rruel..,o"
,\ No, I have not.
Q Hau you had any bu.,,,,,,.. o.Icahn~' wllh lum"
A No.
Q lei' i talk about the day of Ihe Jl:elu..'lll Do
'j yuu ",member ,\ugust 81h of 1997"
ItJ 1\ Yeah. ,\ lon~ liml:: ~tJ. Ifow ,"orne It took '\0
II lon~ to ~o to tnal'.'
Q We'lI tell you lhal after
,\ Okay,
Q Do you n:m,-mbcr what ynu did that day"
" What [did'.'
Q Y,-s.
A In the: accidc.."tlt. or what I was doin!;: ..
Q 8eforehand.
,\ Yeah. actually [ was comln~ back. I ju,t
~o tinishc:d tc~hing: .J. hand camp. and 1 Wa.'i gomg horn!: ~o
:1 Reading 10 pick up my dog 10 take him back 10 school.
Q Band camp. where was that'.'
.-\ Martinsburg, West Virginia.
Q You were going home to Reading to pick up your
our
....
J
l
o
7
K
I:
13
IJ
15
10
I;
1M
I~
"
,.
_J
:J
~5 do~e
P:U!C 10i
- I
I
I:
I
I
I
" Yeah. because I had to be back thallhy in
~ \Vest Virginia to start the university's band camp.
J Q So you had [0 go from Maninshurg to Reading
~ b:lck to "lorganlOwn'!
.. :\ Yes.
6 Q The accident pursuant to Ihe police: report
i occurred at approximately noontime.
H A Okay.
\} Q So you' rc heading towards Reading at that
10 time'!
II A Yeah. I was definitely heawngs towards.
I ~ hccause when I came back. the accident was still hdng
I 3 ch:~lOed up. and I rcml..'1llber sitting in the traffic in the
14 southbound lane. and the truck. the front of the truck. '''''as
15 sitting nght next [0 me which was kInu of weird. hut __
I n [he tow truck.
Ii Q So when you heading towards Rcading you wcrc
IS ca..ahoumJ on the PI..'tlnsy(vania Turnpike'.'
19 :\ Ycah. sorry. casthounu.
~O C.J An: you alone in your vchiclc'.'
'::1 :\ Ycs. r was.
:1 C,J \Vcre you having any prohlcms with your vision
:3 Ihm Jay'!
:4 :\ No.
.." () TIll.:rc was any type of glare.: or anything that
Susan M. Simon, Reporter-Notary Public
~.i-" tllhlrul.:lmw your \'1~lOn .18 YdU litm.: th.1I ,1.&~'1
~ .\ No In facl. I ww Ihe tractnr'lr;ulcr IN"'Y
) heron: u C\'I.."" SL1t1ctJ 10 com: inln lhe: nnl.:(lmJn~ lane:. W.lY
4 up In Ihe wcslhnund lane. 'Ml'.
~ fJ So you wen: Il':m:liny ca.,1 on the Jlcnnsylv,ilI'ua
, Turnpike Lao you lell me wba. you did ........
,\ Just as I "'"l. in the we<tbound I saw O,e
S lractnr-trulh:r what sa."1l1cd like whc." It wa., foU .IWolY It
'J Wil, bUWletn~ back and fonh In the oppo"n~ I.n., And a.,
soon il.OC I 'io1W (hal. within SI.'Conu.s he !:~ Into the other
lane. lit lhe melal ~uanJrall. melal ~uarllr.lI. ,lew up.
I: and I saw hIm hIt the -- I gucs.. your client. the: white
13 car. Aod ImmeUiately whc:n I saw lim lit tb. c.... I ,Iaromal
IJ on m)' brakes and I Sl'Wl arouod probahly on,... on. and a
IS i:alf limes. I'm nol sun:. It was pn:tty fn:oky, I closed
16 my eyes and prelty mucb Ibought I was going to ~ct IUI by
17 lhis truck.
IS ~lIt DOWU:o.;G: You mentioned dir..'nl. Just.;:o
19 you know. I rcprcSc..'l1[ FrJnk Fruciano.
=0 HIE WIT~';ESS' Okay.
~1R. DOWU:o.;G: He represents the !n:~k dnn:r.
TIlE WIn'ESS, Ob.ok.y, Su you're b.ek and
13 forth. okay
.H BY \1R. PRlct:
Q You saa! thaI you -.;JW the lruck in ;hl.'
"
-.
1~
! ~5
wcsthound lane initially'!
A Yeah.
Page 12
3 Q Do you know how far in [enns of dIstance. In
-l yarus. whl."Tl you first saw the lruck In the \\.'csthound lanc','
5 A Wcll. measunng what I St.'!;: here. ami you C,:1O
n equate it to as much yards as you want. pronahly from hen.:
7 to anout the Cl..'l1[cr of the river. Yeah. ahout [hat far.
s It wa... a ways away.
9 ~fR. DOWl.l:"\G; For the record. can We agn.:c
10 that it', probably. oh. 300 yards,
II ~R. PRICE, Well. lot's ask him.
I:: BY ~tR. PRICE;
13 Q In Icnns of fOOlballlields. in your
I~ intcrprcla[IOn of fOOlhal1 lidds. was it two loothall
15 rields.'
10
A
At least. at IC:lst two football til.'IJs. It
17 W:lS a ways J,\o'ay,
IS Q \Vhl.'n you first ..;aw thc truck this ways J.way.
19 what \\'as it doing'.'
:\ Wl1at drl.'W my alh:ntion to it was. Iikt.' I :oii.uJ.
:1 it wa.'i litcrully houncing out n you know what I'm :o::aying'.'
.,., It wa., just kind of ..;himml.'ring. And I ;llso 'io,w. a.'i it drew
23 dos:r. I $J.W th~ olh~r pt:ople that were in hiS lant: moving
~~ out oJ the way bt:t.:ausc they knew something was going on
15 oh\'iou.sly.
1n
Page 9 e Page l~
(J C.ll'~ IhJt '-"en: In front tlf tum or ..
: A I would say ""'tlo I dldn'l .." any can In
J fronl """ause ( saw lhe fronl of truck. <0 lhen: was
~ probably no car. In fronl of 111m,
$ Q When you ...w the lruck bouncln~ and
6 shimmering, was it in the pa...sing lane'.'
~ 1\ It wa.o;, yes, it wa.o; In (he passing I.,me, >'cah.
~ Q '!lle:n you indic'll:d th.1 you saw Ihe lruck
~ bouncing, and th","" you said in ~"Conds It I:ame Inln the
10 c.stbound I.ne'!
t 1 A Well. from the time il was bouncing 10 when 11
12 hillhe guardrail was like that (iodicating). It was very
13 qu:ck. I was still watching when he hillh. while car. and
I~ Ihen after be hit the while =.1 didn't see 3I1ything else
1$ until 1 was done spinning, al a resl. and 1 actually .11ded
16 up when: he knocked outlhe guardr.1iJ. If 1 would h.ve
17 ."lldcd up somewhere else. 1 would have hitlhe guardrniL
18 \\'hen 1 was at n:st. ( looked over .nd the
19 truck was flippc=d over on its siu~,
20 Q After it hit th~ white C3r. you shut your
Z 1 eyes'.'
A 1 just hil the brakes. shuI my eyes. and
:3 hopped for the best.
Q ='low. wht:n you tlrst sav,,' th~ truck up al1l:ad
15 bouncing back and fonh as you smted. how fast were you
'::2
:~
:
PJ~C 14,
- I
i
I
i
I
lraveling.,)
A I was doing the :ipa:u limit. I was probably
3 doing around 65. 70. maybe 75.
Q The sp""d limit is 65?
A 65. I generally don't sp""d, I mean. I do
6 :ip~d. I'm not going to .- but the most [ was doing was
7 probably 75. My car !Colly doesn't go much faster. It',
S not very good.
9 Q So that's how fast you were going as you're
10 heating eastbound?
II A Yeah. \\ltich from my perception -- I don't
11 know if [1m giving too much u but that's what made it
13 happen all 50 quickly, Because as soon a..c; l saw that
I ~ happc:ning. of COllI'& [ slowed doYm. but it was stilllikl:
15 converging. and the next thing I know he was thc;:n: in tht:
16 lane.:.
4
;
Q \\llen you looked up at the truck. were you ahle
IS to estimate.. [know it's hard because you're going thl:
19 opposite.: direction .. hO\.... fast the truck was traveling','
:\ No, I don't want to say if he was spt..'cding or
~ I going [00 slo\...',
Q Do you know. as you drove e:J...';;tbounu on the
':J turnpike.:. if tht: westhound bnt:. if there was a
:4 ~(lnstruction zone?
A I did not S<..'t: any construction. and r drove it
17
:0
"
:5
Susan M. Simon. Rcportcr-Notary Public
CondcnscJt! "
I'cbrutl I). 2000
I'.~c 1.\
II
I 1
, I
I ~
I $
P4~C I'
ha..:k. like I salLl. wltJun t\o\-t) hu~~ olflcr tlk: JC~IiJ&."I11
hapJl<.""'o. md then: wiLm'l iItIY conSItUCllon .n that "'C4
I'erllilp< f<:rtner down the rOll<l, mayhe a mlle or liO. )e.&ll
Q [)J ~'(lu knuw If 1M thai ~a there may h;l\:c
hc.:t."" me=1::1~ -.agns for future l.:'omaruC'Inn'.'
" I!"".uh,
.
Q y,~u don't know thart
K ,\,.\: :hlS poml. I dun't tlunk I'd rcmL-mhc:r
I) whether or :1(l( then: \"'cn: merging o;tgns, But I'm UllkJn~
III about full'::ed!!ed cones up. half a lane closed. I dido'l
II <<:c anyth:."\5 like that.
I: Q So. 1 mean mergmg Signs saYing l3I1e closed
IJ ahead. m.".., nghl. t1ungs like that.'
14 A 1 ='t rememher.
15 Q You indicalcd you saw lh~ truck ~oming
16 w~stbounu. Did you e.:ver StX a \'~hic1~ :itoppt:d in lh~
17 passing Ian.: in front of the truck'.'
IX "~('l.
19 Q II ~'1CO you wen: looking at the truck and
:0 focusing on the truck. tlid you ever look to see if then:
11 wali anytiung in front of the truck'.'
:: ,\ Y... and I did see the front of the truck. so
113 it was a. ~",~ght shot for me: to see the front or' the:
114 lruck, A:1c ii there wac; a co.r in front of it. I uc:tirutcly
. ~5 would :c:::..::nber that Especia.lly on~ that \\-'as stoPpt:ll. Is
PJgc tn
I that what ::ou I rc asking'.'
:: Q Yc;.
J A T::ac was no :itoppt:d car in fronl of him.
4 Q Fcdowmg the accident did you talk to the
S driwr or' :::e white car thai was hit. Mr. FructJJ1o'.'
6 A Y~s. I did. I said something to the eifect
7 of. you k.iOW. it Wi:l.oIi your lucky day today. because I 'iJW
8 him gl:t ::::. At'ta I talked to the police officer. gave
9 him a st.::.:~att or whatnm. and JUSt said :iomethjng like it
10 was your :t.::ky day. and he Wi:l.oIi pretty frc~ed out. prt:tty
11 shak."ll u~. shooken up. That's n:ally all I said,
I,: , Q D:d you talk to the plaintiff. Frank Fruciano.
13 ahout any ::l}unes he may have sustamcd:
I~ A :--;1)
I'" Q D:li you talk to the driver of thc truck'.'
1 ~ A ;.:", I did not talk directly to the dnvcr,
117 Q '1",:,'.: did talk to the policeman though. correct'.'
IS A Y",. I did.
19 Q Dn you n:rncmher what you told to the
10 polkemJ:1'
11 A P:-.::ty much exactly what r just rold you. WhJI
"'.. I saw aoe ::O\\' I saw it bappen, And thl: only Joded fhmg I
13 told him ',~.::J.."i nne of the little tiny. tiny pieces of the
124 guardr:ul :::l.d 110\"'11 up ..lnd when: it landed put J Iinh:
25 d~nt in ::-::' :,ooJ. TIw,{' , It. At rhat point I \\'a..'\n'l
Page 13. Pag..: [t,
t.:n~'CtTk:d .ahnuI that
CJ 'I m "Oln" 10 ,how you the pnlll':C' n.:pnn from
) Ih" "",cllJenl. ('II <how you p~ ~
~ ""II nlllll
IJ P"'''flT.ph~, II', lhe police o(fice,.',
· 'umm;ary or hI< ,ntcrvle'W wtlh you, rr you could toke ,he
1tlT'k: 10 read Ihat
~ mnd p.u,,,, tokL'Il olT ,he reen,,' )
~ nlE Wl'r,o..'l:SS TIll" one, Illlhal ;tIl'1
10 'tN. PRJeL YC!\, that',", just your "t.1h."11lt.~t
II nm wn~r,ss, TI'.I" pretty much wh.t 1 jus,
I~ <lIIU.
JJ MR. OOWLI)o:C;, For ,he n:conJ. you had hIm re.d
I. the police report. which as I undersL1lld il. is the police
I~ offker's summouy. not a verbatim stalt."mt.~t glvt.'Tl hy
16 ~Ir. Seymour. I, ,hal your understanding'.'
Ii ~1R. PRICE: Yes. it's not in quoLa.tions. It's
18 just wh'l the police report stalCs.
I~ UY MR, PRICr"
:0 Q Do you agm: with the w.y the police o(ficer
::1 rummJrized your conversation with him'J
.... A, Y..:ah.
~J \tR. Dowtl:\"G: Object to thc form of that
::~ qucs110n.
-,
Page 18
BY\IR. PRIce:
:: Q Other than the police officer and the
3 pl<linuff. did you talk to <lnybody else at the ~cene.'
~ 1\ After the car - after I came 10 rest <lnd got
5 lJut. the woman behind me lmd SlOpped. slammed on her brakcs
o ob\'iously bc:cause I was obstructing the ro<ld and wa.Ii very
- up~c:t. And she bnd <l cell phone:. and I cailed 911 on her
S ..:cll phone:. I spoke with hO". Ie:t me: do it because sbe:
I} didn't want 10 do it
10 I was so 'ibakcn up !h.n I gave them !he ""Tong
11 road. I laId !hem \\0'0 wc:rc on 81 instead of the: turnpike
11 which I felt horrible <lftcr r was going: home <lnd r realized
IJ il. but that':i the only other person I spoke with directly.
14 Q Since the <Jccidc:nt. have <loy investig<ltors
15 C\"!,."T ~hown up al your home: or c<lllcd your home to take a
16 'i!<Jll.:tnenr.'
I~ A No, jusI n
IS Q Anomey Dowling?
[9 "YI.":Jh.
:0 ~fR. DOWU:-.'G: I didn't "how up at your home:
::1 though.,'
"
rilE WIT};F.SS: No.
~IR. OOWI.I:-.'o: \Ve: falkc:d 011 the phone'!
mp: WIn.:F.SS: No. but you're more than \vdcoml."
;3
:"
~.( ;lilY IIlIIC.
Susan M. Simon, Rcportcr-Notary Public
CondcnsclU"
Page 1-
Fcbruary 9. 2000
P;J!:C III
UY'1I1 Pili. I.
Q Dn you recall ~\'Cr glvlny: sralt.irk.,''tll~ 10
J InH~IUlvatuN or insurance companies over lhe: phune'.'
^ JUSI In gt."f1cr.lI or abOUI ...
Q "hout ,hiS .ccilk'lll.
(\ No. nol Jhout lhls JCcld,ml.
I) Tdl me about your contact with J\ttorncy
~ DowllO~'s officc. DId he "II you'.'
.\ Yeah, TIl3t's h:!."eally It. he callcd IOC
fJ Wht.'T1 wa." Ihar.'
,\ I uun't n.'TTIt.~hcr the uate, 111at'" humble:.
It was JhUUI .... Ict'~ StX, it wa.<; right before Chnstma-"i
hrcok 1 know bccau."" 1 wa.s gOIng to schedule to tllk with
)'oU 10 person, So il wa.s prohahly like. I don't know, the
~nlh, mayhc: c:uJicr than tha!.
Q What year is [hi~ now?
" TIlis past.
Q In 1999'.'
r\ Yeah.
Q Did Attorney Dowling want you to come to he:n:
:: I [0 hIS office to ~che:dulc an appoinlml.'T1t?
r\ (f l was available. yc:ah, But. you know. with
~j school and cverything, it'5 kInd of n (was going [0 lry
::~ to ..:ome up during break to make it easic:r while [ Wa."i in
:: Reading.
:
~
!
.
'.
'10
II
I I~
"3
I.
, J~
In
I~
18
1<1
~o
;....
Poge 20
Q Did )'OU G\.1."I" m<lke: that appoinlmcnt.
:: A ~o. I did not.
3 Q C<Jn you lell me: what you talked about'.'
.:. ..\ Ba~lcalJy just wh<lt you <lsked mI.'. wlml
5 happl."ncd in the: accident, what I reml.'Il1bcr, if I read
o cl."I'L1in things.
Q Did you give a stak.-ment 10 Attoml..-Y DO\,,'ling'.'
A Y cs. yeah. And then it was maik'li b<lck to me:.
~ <lnd I signal <Jny corrections thai r would make on it.
i 10 That's the: stalCrnc:nt. comcr:
Q I'll ~how you -- wc.lJ mark the police report
: 12 <It Sl..-;'1nour I. and we'll mark lbl~ as :.
'13 (4-page police accidc:nt report produc\.'ti and
! 14 mark\.-d as St.-;'1nour Dt.-posilion Exhibit Nwnbt."T I.)
15 r I-page: typt.'wrincn "L3tcmC:Q!, durl..-d Dt.'tcmbl.'T
'If, ::9.1999. produced and m:lrkl.-d as Sc:)moUl' Depo~ition Exhibll
I~ Nwnb'T :,[
IS
'1<1
S
,II
: :Il
1l\'\IR.PRll'E:
Q This ,,1.:l1Ctnent. did YOlllypc t1m!'.'
A Nn. I did nol.
Q On YOll knllw who typed it'.'
:\ Nil. I do not.
Q \Va:>; thai "cot to YOIJ hy Attorney Dowling'"
:!
..
::3
:..; llffkc}
"
..\ Yc:>;.
Page 17 . Pagc 20
our
00'
Q Afh:r YllW ~nO\\:'r'l\allon'l
~ ,\ Yc:S.
, Q In lho: llurd par:>gr:lph. lho: .1.1ll:mcn1 '1.1les
~ lhat: II.1Ikcd 10 lho: dnv.,. of lho: lroclo,'.r:"I.,. whe:n
5 he gOI OUI of Iu. lroclor and the dn,'", 'l.1lcd I ean'l
I> ho:lieve f fell a.,llXp
7 A RighI.
~ Q n"'IIlhen:', an mnw gOing up to .hal. Do""
Y allhe hOllom il 'l.1'e,: I did nol .peak wllh .he dme'.
III I <Imply heard hIm say ,ome.hlng 10 thaI ct'f,'C1.
II A Yes.
J ~ Q \\!ho put the arrow in thai .It.:U,,''mI."T1( at the
I J ballam'!
I J A I did. I com'Cled .hal. and I put the arrow
IS a..'i well.
10 Q As you testified. you never wu talk to the
17 dri v~r. correct'?
I ~ A No. I did not 'peak '0 him din:elly.
19 Q When: wen: you located wh,'11 you heard him "'y
:0 something to that effect 300; you put in the notc here?
:= J A I was at my car. where it was still from where
...., I spun out.
:3 Q So you're slill in the mlddk of :he road'!
:..; A Yeah. And in relation to where II..-ndcd up .Jnd
,< to where he was. lhe lruek wa, ahoul hen: and I wa, right
Page 12
in front of il. After [ had 'pun. I jus. ended up kind of
: like righl in lhe same viciniI}' And he wa, slIlI hy lhe
.; cab of his truck.
..; Q L:t's do a little diagmm hen: so I'm dear as
5 to where we're located. \v'hy don't you draw the gU:lJ'd..rnil.
6 where the guardr.1il split. and then you shov.' me: whcrc your
.. car Wali.
S A There's lhe guardrail. the ,oad. JIld I was
9 about here. And lhen up here on the hiil -- I'm sorry,
10 righl ahOUl here on Ihe hill was him,
11 Q So why don 't you write in thc:re "truck."
I: A Truck.
13 Q \Vhy don't you pUl your ini,ials there. KS,'
14 A (\Vitness complies with request of counsel.)
I; Q Ok.y. You indicated the line that is
10 unhroken. is that the guardrail where your car would he.
17 lht:n:'~ an opening'?
IS :\ This is the line that is broken. yt:ah. this is
19 tht: guardraiL
:0 Q Arc these two lanes here'.'
:: 1 :\ Y cait. this is two lanes and t\I,'O 1:1OC5.
Q Why don't we write up hen:. {his \\'ouIJ he the
:3 ea.',ahounu lanes'!
:4 A Yes.
"!':; (J \Vl1Y don't you writt: that up at thl' tor.
Susan M. Simon. Reporter-Notary Public
Condcnsclt! "
I'a~e ~ I,
Febru
9.2000
P.l~1o: ~J
,\ (\\lIn~"" complll:~ Wllh'rcl1ucs(of coun~l ,
~ Do you W01l1t wcst too','
, Q Yes,
.. "I'm nOI .an artist. ~rry
5 Q ThaI" okay, ['m nul J.,k1n~ you to be une
I> If yuu could r 'JI an X wh..... you wen: I""a.ed W"''11 ~uu
I . alkgedl~ heard 111m say ,omethmg '0 thaI effect
~ ,\ TIle woman lhat 'lopped behind me w"-' here. JIId
I q thL"n we: were In bc:tWL'\.~ the two cars. my car Jnd her car
110 Q StllhC' X IS YOu','
II .\ Yes. lnaual'.'
II: Q Yes. PUI KS next to .hal,
IIJ ,\ (Witness complil:s with n:qlk:st of ..:ounS4:I.,
II-l Q ~laybc in that hlock JUSt '\onll: "c~." 'in \H.'
J 15 know thJt'~ KS ..:ar.
I In ..\ t\Vitnes.'i complies with request or ..:ounsd,)
II'" Q TIus block here is the: \\'oman' 'i ..:a"',1
liS :\ Yes
I
: 19 Q \\11y don't you write that in rhcrc, Do you
!:o know he:" :1aJ'T11: by chance'.'
i: I :\ ~o, r never asked her name,
Q PO,l! '\:ar" underneath there so we know
::) .-\ jWitness complks with request or counsd"
':-l Q .-\no the Unwr. whl."TC w~rc was he :llk-~edJy
::5 located "..:hl."n you heard him'.'
Page 2~
.-\ 1 Indicating.)
Q He W3..; next to his truck','
.-\ Yeah,
Q Was he off the road'.J \Vhere is the roild thl..'n..'
A :0-:0. he was prohahly .. the hill wa" like. you
o knov..' what it mean. it's kind of like right up against the
-; road. So the: .:nd of the road would be along here.
Q \\ny don't you put "driver."
A (\Vitncss complies with request of coun~l.)
(Sketch produced and marked as Seymour Deposilion Exhtbil
Number 3.1
:
3
I .
;
S
I 9
110
III
ip
ii'
I J
II~
II;
110
,
! 17
BY ~1R. PRICE:
Q :'oiow. you '\-TOle that you simpiy he:ard him say
something ro thiJ.t !."ffect. Who wa.s he talking to'!
:\ There wa..; .J. bum:h of othe:r people that had
stopped ro hc:lp l guess. and there mIght ha\'~ bl:Cn -- I
don't rt."l11emher, 1l1t:rc were sc\'eral pe:ople thm had stoppl.:U
and '....!."rc talkIng to him. asking him if he: nt..'t:ued hdp.
lllOSC an: tht: people.
r w<Jntcd to say amhulam:e people. but IIl!."y
wcren't there yet. ThcrL: wasn't tim!." for all them to gCI
..,.., tht:rc.
! I~
il'i
i:O
21
:j Q \Vcrc you ralking, at rhis point in lime: ,..'l1cn
:..; hc'.; talkIng to theSt.: other peopl!.". arc you talking [0 [hi:,
:5 Olhcr woman'.'
Page ~ I - Pag~ ~~
A Yeah. .Il that rmnt .dlC w"-,, ,ull "10\1 tlf
~ fn:akm~ oul
) Q \Va." .,he out of her car'.'
l "Y(s.
5 Q Why don't you PUI an X ror ,,11.:n: st", w."
n A She: was standing nght nc::tt to me
, Q I'ut . W n(Xllo Ihal
~ 1\ (Witness complies with n:q~"t 11 coun.....1 )
" Q Whal W(n: you guys IOlkJn~ .boul','
10 A That'" when we were !k1yin~, oh. my (jIlt!. J.1.
II do. da. do. da. And she's saying whot .hould we do I
I~ saId We should probably call 911. do >'ou ha\'e a phone
I l said y(ah. and she gave me her phone,
I. I said call 911. She said I don't wanllo do
15 it. She.: gave: me: the.: phone,
In Q How W(n: you r""ling right al Ihat mom''llt
17 A I was very shakl."Il up to say the least. And it
18 was, you know -4 I don't know, I've never hc.'\."f1 in:.1n
19 accidl."Ilt bdorc so it wa'\ some:thin~ I Jidn't u
:0 Q Wh\'ll you called 911. you actually gave Ihem
11 the wrong road'!
...... A Yeah,
:l Q When you note here. I didn't speak with Ihe
:l dnv(r. [ simply h(ard him say something to that ciTecI.
"'5 what do you mean by that','
Page ~6
A Well. when Ihey were alllOlkmg 10 him. [
~ heard n this is what [heard. I hoard [ fell .- ellhcr I
l ';'It sleepy or I fell a.sleep. Somelhing 10 Ihat effee!.
. And like [ said. [ was all discombobulated and whatno!. so
5 what he: said. I can't recite to you exactly word for \vord.
6 He could have said [ fclllike [ fcll asleep
., I fa:1 sleepy. That's what I mtan to lhat drect,
s Q BUI do you know. In fOCI. If he did say
9 anything about fl.'t:ling sltXpy or bc:ing shxpy for sure'.'
III A All [ know is what it sounded like [heard. I
II wouldn't say he said "I fc:ll aslt.'Cp." I would say thJt I
I.:! heard him say somt:thing to that dTcct.
I J Q Do you know if he was responding to J
14 question'!
15 A The guys \""ere talking to him. They wen:
I/') :;aying arc you all right. you need .my help. what happ~n;:d.
17 what happt:ned. mun. And that's wh(.-r1"
IS Q Did you hcar him saying an~1hing dse. thc
II.) Un\'cr'.'
:0 A After that. r rcmcmhcr hcaring them talk to
:: I him and quitt: possibly just saying. you know. whether or
.." not he was hurt. and he said he t\:!t fine. just something
::3 mayhe with his ann. I remember him gomg like this
::4 (indicating). I rcm~ber just looking at him out of the
::5 comcr of my t.::yes. N..~ing him going like that (inuicating/.
Susan M. Simon, Reporter-Notary Public
Contlcnsclt! "
Febru
9,2000
PJ~C ~~
P~~l.: ~-
IJ Ilt)W many pcnplll were lJlkm" ~o the dn\"cr. d(l
ynu knuw" I low many people wen: around him','
^ TIIlI:C or four,
Q Do you know for. facllhalll Wa. lhe: dnwr
who ..id an>1hlng aboul r",lin~ sleepy"
^ I w,.. lookIng al him allhe momenl tlun~ \\~rc
being saId beeau,", I was, you know. JUst kind of glancing
hack and forth, [juS! happ\'Tled 10 .. [ myself wanlcd 10
oiCC who wa." dnving the lruck hccau.'W.: I w"", km~ III' +:nrag....d
hy the whole dllng. fell like who IS \IIIS ~ul'. wha' JUS!
happened.
I wanted to know what happcnecJ as well. '0 1
W.lS constantly like glann~ In Ius Jin.'CUon. I wanted
more Infnnnauon is what I'm saYing, '0 that'" where I wa."
louklng:. at him.
Q But hc wa.~n't talking directly to ynu. ht' was
talkmy to thc:sc gentll.'111l.'11'!
A AbsolulUly. yeah,
Q And they were loc:ned almost (wn lant:s away
from you'!
t\ Yeah.
Q Now, in your police report. tht: summary that',
in the police report of your mleI'\'ICW with the pohc.:
officcr. d~s it say anyv/hcrc in there ahout the truck
dn\'cr possibly falling J..'il\.'t:j) or (l.~ling sk~py'l
Page 2M
TIlat's j us[ my paragr.Iph. right','
Yes,
~1R. DOWU:"'G. Ohject to the ronn of the
4 question. 111e polkt.: report speaks for itsclf.
5 0'1' :\1R. PRICE:
Q You can answer the questIon, Docs it'.'
A No.
:\Ht PRICE. All right. that's all the
LlueslIons I have right now.
MR. DOWLI:"'G; Just a few qucstions
:
,\
Q
o
s
, 9
,
IIIl
ill
I
il::
OY :\1R. DOWI.I:-':(i;
Q \v11ut kino of vchide were you Wiving'.'
r\ Same one I have 00\\0', J grJ.Y Honda jJreludc.
Q Did YOII lalk 10 ~Ir, Price at all abouI Ihis
case when he sent you thc suhpocna to he here touay'.' Oil..!
you talk to him over the phone Jhout the case'!
..\ ~n. I did not.
Q Dlt..! you talk to anyhody from his office'.'
A No. I did noL
Q Now. when \vc talked on thc phonc hack in
Decemher. I thcn sent you J stah.:mcnl which summarlll:d nur
:.3 cOn\'ersatJons. is thilt corrcc!'.'
A llwt'.. correct.
Q And I ;l...;kcd if thl.:rc w~rc any cnrrcctions you
13
I.
I;
10
!l-:'
IS
I"
i:o
1:1
!....
; :4
:..,;
Page 15 - Page 2:0-:
k s"''U,l1n. (
EXHIBIT NO.-1-
rT\ COMMONWEALTH OF PENNSYLVANIA d -9.?cCC
~ P"LICEACCIDENTREPORT S.M. SIMON
4lFW1tAroO't'VU'f '<<';'1 ___._ .___~~?S...~u'C'n"Dlfl-1 .f~'UIIC>>C.t'
. .. ','T.' 'POLICEIHF.ORMAnON ACCIDENT,..'lOCAnON::' ;,,;~: _~r.;.:'\
; ~' \l;. ~\o3."IV-;- ----:: :~~:':':'''lV C.'_H~)~~".<::) ":~ord-J._
i~",.. -~ ~6,re ~1C.~.p""nl l...~e.~j~~::;''';:''..._,,___JO
f~C..IC'~IO-riNC.~\"'~12 ;).) ~ I !?~[ J~' PRlNCJPAL!,?A~"'!A.:/NFORfI,~,~
1"Yr. .. ___:: nOli" '10 on
i'~'O~.fND "~'~C~I!:lTO<'\<er.. '~:~Enl"'la ''''LL,...... V"~:\.e,,:. ....~~Io
,~~ " ""'0 _ 1"1'>1;;( --. I "IACCEU - -
7 1M <..... ',,::,..y, MNnEn ....'71:" ,"m 1..Jl":).::. HIOI""" ~_, :: ~'!~'!!'L~'
DAlE ...."'''~ O~."".., II ~".. \..') ,"{ '_ INTERSECTING ROAD: __
'~'~;:~~~'!~INFORMAnON "~~n~c';~:'
, lllCC f 10 u..'t' Of 'Nl.(K :' ~rttD
,.'?Art: 05-08-'\'1 ~\ '''m
JJ. 'alE OF Ll t) '1\INDln
. ~., IriO.,.. Of ~'"s do.
u . qHO '41 HJUREO " rAN moP , I [I
~- ..!' ~.-!~--~ &_-
t.. 01) Ylt<<;tC HAVE TO fJE II' VEHlClf OAMMOf;
RVC'NFD fAOU 'HE sen., ". '10"( '""":.3!
\HT I l.I," , I oem '
.....1 I I I~ I ,'.""",.." ... '
V ,..., H y ..I H! i', 5{'I['" """,' C7 I
~ I J 1~1 I"P"'''O'J!
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N I ~
UI)(JOJ67 -U
'WH
COt..:;
r1;.o 0;
AlaE.
. UNITt'
"LfCol.U.M"Hln_RfO _
"_0" !I II PlA'E Mu~1c'l'"
.., p~ Irnt DR
~-8l~I!_vtl, ~g e5""l'10 ~
~_LE:.A'1uc(, CO.
4I.~
-~_c;r: ~ e.A~ ?-O ~n" ",c"
t2. CITY. STA..~
. -~~~ ~f<\~~G ~ I-j'ucm
Ul'lM 1441oUJ<E
is &ICUI.-.~ '. \j C \..\.1 01 '" ""
_~n~tCe,:,Q"C' AJ;nor:>"",- . ..y '~fI' IJW(' 1
"'~CJOar n.1 iSl'EClAL /.9 Vf,lnett
. nP! - ''''1 . USAGe lc O\""'F"!;, 111'
.101iiiw _AcT\ - ~;'j'vtHICLF 0 "J7 In^VTI ._
- POM' 'TAlUS , "''U.IJ \..D.":)
"-'ii'HiCtE ' ,,"ooMn r"-\'- r"'OIlIll[1I I
CAADlENl ""'F.~"CE corll'" 1m,
!4 ~IVER 08 ~t ,*l
--~_.- ad-. q ~~<a
~. DRM.R _
.''':''l' -....;"'~l:..'\ o;u..r\:) l'!.<..~'S(.).:::x::
,", CR~ -'"
~~-~.....~ \ Bolo ~D\ 'k.~l~eo
!IO cnv.sJAIr::
-.~:~. c~~.,,\~ ~ I'::"Y':"~
'II so: 11. DATE Of' Ie P110Ue... ..
""'"' BOI'H 10 I~- SI'. 0'
" cy"" ..... OOMR 1\
. :. ~ ~~_n CLASS ""'\
"C~IfR ~
. 1...0.":" rnc.~0t\\~ \..::lc...
~~~
""",,"ss \~ 'f'f""l"'c...'i:.~ f'>.,,;;;'
!Ii citi. STAfE
IlPCOOE '1-1t0";jo..~"-l?A \<=;"IC"\
1"0 lI!.Ciir"; K:C' C. pue,
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f;J.'cMr..o 'j.:-~vm
<c 900v."" it- ' :no,oco
5 li",,"itt..l .AROOU5 I" nFI U\!'E "LY^Zl,.(,AT
. UAIERIAt.S (.) C). I( 0 " V'\ lIUI<O
]A'i'^If.
P,\
'iii;'fm> --- -,-jli';.occrs.!"-
(~'ttjGtMA'" t._ CONTROL
IF NOT ATlNTERSECTioN: i'{
...-. . "J..
)0 cnoss StRfET on . '}If.
S[c~""...".[" -- !:!:).r:;-- t.a-~<=>"\-_'_'I;:~
llOl"(CHOPl r;;'\ .OlSANCE 8 <,I..
'''OY!ilf[ N~~E W ..-!-~JTE .~_ ---!!:.. _ All. i:\i.,
" """"", W^, 'J "'J ''':~'
_h__ ___. LlEASunEO L EStiMATED lr.-. ..t: (.:~
11 ~O"srnUCflOPJ .is, TrwrlC PnI"C~Al INTERSlCTNa ~\'~
/O"r. I 0. j - COlllnOL 16 l r J '" ..;::
DEVICE .." __', 'Ii,
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. ,....,.., ....., ,,'" \ "",, -.
JI; lECALLy Y NIl/'REO 131:31"" ~I.~~~
"''''EO'' 'I: "'-'IE rS\Q04~'O;= .._L~~ .,."!".'
J'1 1'0\ fllle on l:
nllTOr STAIEvI" oCO l.4\'1,:).y e.. , ";-':.
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4!> '-'OOEl 1'*0'/ "11 IP4S ---'___
. ,noD, "''''I (T)t>'"'~ c.AZ\.O __Y.J.\tl.!!Q..!!!!KO
41 !JOOY fe SPCr.w. ~4g lVEHICLE I '
/0 .. "I'( OJ. :,u""OE 0 _ :::..o~'!!!!'_..__
~ ltUUAl ''''rAer 51IVE'''ClE 521 TRAVEL ,~
. row C::t\ :.. STAtUS 0 ~.....~~~E'_ _t..a~~.
~) ~,~~~i~r I :54 '~~~:H:E r \ ! S.5l:~5~ION l
~ UnrV[fl I~r. 9~r~
"U~O," \ lo "?'03 '-10 1 ~
511 nnrVF" _ __ _ __'_
""" r2Mlt'-.,\' Ruc.\",~ -:I,~__,__,,,_.
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1:'1 CIIY.~'ArE
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III SEX le2 O^ T1; OF sf PHoM:
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1;' CMlRIFn
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17 HELEAS€ 0Fi,W,' MAr I
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PIlR (,ON "NUll TIUN SIIEET
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~;, A . mIles 'Nllhln .,ac~ :'i,:.~_ rnC,"";::-t ::er:c:, ::..r:ng 'N~lcn ,f " :.;r.Car :ease ''''3'..;ara~lee ?~f1oc"~.
7ne ;;aymer.: ot It'',a \4l1eage ~ale ;:::er\.ille snail ~e ,"'!':ace as ::IrcvlCeC in '=3(3.;:-:1:" '3 ~I :he At;~']e.rnen: !or mile:!! Jc:uatly operalec,
A :sett:emem 01 :he ."':";1I138ge g!.laranfee 'NIII Cia mac~ a: :~a ~nc ;1 <:lac:": ~uar:1n:ed ~ar::::c JS ~OIIC'N5: "miles ac:uatiy operaled curing the
:JtWoC .lre leu than me mild' guaranl'.!eC.Il"ier: C..s:omer NJil::e :JllleC:y F:.. anc C.-Slorr.er SnaIl :romClIy ,::lay 10 ~i.1 an amounl aQual:c
:ni;t Clllerl!nce !:Jel'Neen :he numOl!t ot :nda:s g~aran:eec a~::: ::-:e :-:umoer ;,;: ~Ijes o:::eraleC: cunn; :r:e =,ertoc, multIplied by Ine Deficiency
Rale ;::er MIle sosc:li~c CalOw. I: :ho :"lu~tler 0' miles ODeralac .::utlng :ne :enoc e;(cee~s the nurr.:;:er at mJJ~s :;uaranl~ed. IMn Custcmer
.....'11 reCSlve o::eaif tor 3n amount ~Qual :c:: 1lt~e cil~erer:ca ::6Iw~e~ ~Me ."':':118S Jc:uall'f :o",raf"Jd ar:c :.~~ mlt~s ;uaranleec. mulllchec by;:::)
:/':e CII!erence cetween Ihe lwtileaqe Rate oet Mile 3~ec:!iac en Sica ena 01 :h15 Sc~ecuJa anc :r.e =~ces3 .=1ale cer Mile 3ceclfiad oelow
7he :elicleflC'1 Rale :ler Mila s~ajl ::13 $
.,/...
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J:":C :~e =.~ce~5 .::l;.;ue ;Jar M,ie ::~J:l ::0 ~ .._~___
~rl~:; 'oer318C ~y 'J"Mreles ION""JC:'l :r:fJ same .\fllaal,;8 ='3:a ::er '-Alie, ::elic:er:c.,I '.Waage .::Iate ::er '.AI''.!. :.(C03S M11eaqe Rale ::er .\1rI>!.
~lO~=~r,r ":':lie3 ;uaran!aed. 3r:C guar3:'::ee :::l!rlCC 3C:I'.'. .-"ay::e 3'Jer3gec:. :1 :t1O;t ,ea3e 01 any "'JnICI~ is :~rmlnaled ::urrng Jny guar3n:ee
;er:cc. ::'Ia j'WJrantel! snail :e :rorateo:: ':r :r.at ".!r'lc:e ;:1 ::-.1) :a~:: :::1 :~e 3.C:~4r ;Or:Jcn ~: SL:C.... ::lJr::c 't was :.;~Car :ease.
:":-:,$ Sc.,,:eC:';le A (JMct~.L::,.,g sica :ne ,~.QreCI):s :"1er~9'~ "':":a.:e a ::~t:;! :ra! O:f?r:JI.~ 7"r....::;( :"easa ....""c .st.lr"t-:~ :":;:aemen! ::e!ween 1M :ar::t.lS
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Exhibit D
Exhibit E
Rand H. McQuaide
~.v._ .1
"
" "" .w::~ ":"~".
":..A:'j'~:rr ;';"'H,iiI:.,.\/ot. :::;J~j: I.
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l.t~"'l '!llV.t:'1c..r :.:, : "Q~
_. ~-;:a<1. le::'':''''..r\~. :'~~.r~',. :1'l~'H;
:Q'::JrJ~:~/' Jr,....~. :a~.,'1 ._~.::.l;.
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Susan M. Simon, Reporter-Notary Public
Condenselt! ','
December 16, 1991)
Pa~~ J
.., ~ .
STII'L'LArION
~ It is hereby stipulau:d by and between counsel
l for lhe respective panics that reading. signing. scaling.
a filing and cenification are waived; and thaI all
I ~ objections escept as 10 the form of the question arc
o rescrved until the lime of trial.
I
I 7 RANDY E. MCQUAIDE. called as a witness. b~ln~
I'
, s duly sworn. testified as follows:
I <) EXA~IINATI()N
1 III BY Mil, OOWLINli;
1,1 Q Would you state your full name.
I: A Randy Evan :VIcQuaide,
113 Q How old arc you'!
! I. A ~2.
i I~ Q Your marital status'!
110 A I'm divorccd.
,
11- Q Divorced. Do you have children'!
11:-; t\ Yes. two.
,
: 19 Q Names and ages'.'
i~o :\ Keegan is 9: Trcssa is i.
i ~ I Q Where do you rcside'!
'" A 109 Buchanan Avenuc. Johnstown. 1590~,
i:3 Q How arc you currently cmployed'.'
~:. A Employed by W, C. :VlcQuaide. IncolTJorared.
i :5 Q In what role or capacity'!
"1:" ,
-
.
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7
S
9
10
II
I~
13
I.
15
10
17
IS
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Page oJ
A Director of Human R~sourccs and Safety.
Q Is your last name th~ -mme: as the: L.:ompany' ,,'.'
A Y~s.
Q It ':'i a family-run bu.,In~SS'.1
A Family business. yes.
Q Arc you an officer or ,tockhold~r. or uo you
have an ownership role in the ~ompuny'.'
:\ I have no o\Io"e:rship.
Q No ownt:rship'.l
A No ownership.
Q Who is the company o'\"eu by','
A The four principals. brothers and sister.";.
William F. McQuaiue. L.:um-ntly president: Stanle:y R.
~lcQuaide. VP Operations: uland R. MeQuaid~. n:tir~d: and
Nora Gene Wulkcr. rcurc:d.
Q At some: point in the future. will you he a
O\Io"er or the companY"
:\ Yes
V When will rhJl be'.'
:\ Prohahly upon my falher's death I will inherit
the slo!.:k,
Q Arc you currL~tly an olTker or thl.:
23 corporation'.'
2.; ..\ I'm on Ih~ hO..lrd of JlreL.:tuts.
! 25 l3'pagl.: nIHICl.: Ill' Ul.:pOsltlon fllr c(Jrpora[~
Page
Pugc ~
"
Rand E. McQuaide
GdcslgTlCCor w. C. M,Qu.1Ide. lUlal No,ember I~. 1999.
~ produced ;md muktd iI! McQuaide Dcpotillon Exhibit
J Number I.)
.. nv 'tR.. OOWlISO:
~ Q Mr. M'QUlIidc. I ,bJw you who. ho. bo:n m.,kaJ
n <I, McQuaide Exhibil Number I whicb it a noUce of
;' 1k."u1Iuon Ill' Lhc cnl'J'lom1C tlaigna: of W. C. ~tcQualdc.
~ Int:.
9
III
II
Condcnsclt! "
Page 5 :
Ha\'c you reviewed E:\hlbu I I"nor to today'.'
A Yfo."'l.
Q An: you the individUoJI WI h.3... knowledge no
I ~ lhc c:mploymcnt 'l.1rus of Mr. Blystone on Augusl 8th. 1997:
13 ,\ Y...
101 Q An: you the indi....idtmJ lbou can leSufy as 10
1 ~ Iho: lC!lal n:lalion"hip bclVou:rl W, C. M'Qllaldc. In,.. a"d
16 Fo" & 1llDle! White Truck Company. trading and doing businc."S'i
17 as FI1l.asing Company, on Augwt 8th. 1997:'
A Yt,."S.
19 Q An: you the inwviduallhal C:In testify as 10
10 the lease agra:ment entered inm bctwa:n ~1CS Wiln:bousc. Do
21 tlivision of W. C. McQW1ide and Harold 1. Williamson. J r".
2': with Fox & James. Ine.. referenced and 3ttJ,chcd as Exhibit
::3 A to the deposition of Douglas Jessen dated June :9th.
:~ 1999'.'
1M
::
A
Yl."S,
Page 6
Q Have you brought any documents with you'?
1 A The lease agreements.
3 Q You brought them with you'? 3
4 A (Nods head up and down.) .
5 Q The lease agreements or agreement'? _
6 A I havcn't reviewed them. I'm not sure whether 6
7 there would be more than one. 7
M Q Do you have them with you'? s
9 A Yes. 9
III Q May I see them'? 10
II A Lease agreement. one. 11
I~ (Documents handed to Mr. Dowling.) I~
13 BY MR. DOWLING: 13
14 Q Thank you. On August 8th. J 997. who was ,1.
15 Mr. Blystone employed by'? I];
16 A W. C. McQuaide. Inc.. and he was in the MCS : 16
17 Warehouse division. ,I-
IS Q So his employer was W, C. McQuaide. Inc.. and ] 8
19 he was in the WCS division'? ' 19
10 :\ Yes. MCS division, :(J
:1 Q MCS division. Can you ~xplain n first of ~]
all. what kind of company is ~l. C. McQuaide'? :::
:3 ..\ W. C. McQuaide'? ,:3
1. Q Excuse me. W. C. McQuaide. ,:.
., "W. C. McQuaide. Incorporaled. is primarily a .,
Susan M. Simon, Rcportcr-Notary Public
Deccmber 16. 199<)
Pa~..: ~
truckln~ company. and w~'n: also In.....j\(d In warehOUSing
: Jzu.lloglstics.
Q Who' i, ~lCS WJl1:hllusing'
A It', our warehouse Wl'lSlOn, :: l )U.,t d/b/a
Mes, Stands for McQuaid.:'s. But:t , n W C. McQuaide.
Ine,. IS lhe whole ,ompany, It', just - '.c just divide
vmous departm<'lllS hy Wfr,n.'lll nar.:e.;
Q What does the w,,",houslng ,;,;"slon do','
A TIley store goods and thl.:Y p~\":c.: warehOUSing
Sc.:'r\'iccs ror variOu.~ Customers.
Q What is Ihe ~lCS stand for','
A MeQUlIide's.
Q McQuaidc's. Who is Haroi~ lJ Williamson.
l
.
5
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J 19
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Junm,!
A Vice President of Wan:hou..i1.:"~
Q What olher wvislOo, arc the:-:: .=ldcr lhe
M'Quaide umbrella'?
..\ W.:. have an In.. less than ::r~:':':oad. division.
and II'S n the decals on [he [ruek"",'x C. McQuaide.
Inr.:, \VI; havc a truckload division Ie: .-:.;,st general
tru,kload which we call ~1TI.. MeQ=.o= Truck Load. JIld they
operate all under the same authority. ..1.:)d tht:n there':; ~cs
Logistics. ~cs is a warehousing di...:::":.:r.J :hat ha'i
~.; :;pccializcu trucks that haul warchoc...x ;.ugo truckload.
Q Do you know who the.: auto=.:-::l.: liability
!::
Page 8
carner was tor W. C. MCQuaidc in .",....:.;-.:.st of '97'.'
A I believe it was Lih,rty Mu~~
Q [s that somt.:thing that you ::;!.-:::.:.: :n your
roh:?
" Partially,
(2~page documt."T1t. Liberty ~.L=.:Ji dcclar.mon
Sh<'Cl daled 7-22.96. and claim sh",,:. :;:.:d 9-18-97.
producC'u and marked as McQuaide: C-=?o~1tion Exhihit
Numher 2.)
8Y MR. DOWU:>G,
Q I show you what IS blXn ma.-:~.: J$ ""1cQuaidc
Exhibit Number 2. The I1rst page an:.-,:"'2Y Jppcars to he.: a
dee sh<'CI from Liberty MUIual for W ': ~lcQuaide. Inc.
Ha\'t:: you Sl.'l."1l that docum~: ...~:'orc'.)
A Not necessarily this panicu;.l;" :('Il.::.uncnl.
however. r am familiar with the for.::
Q At lht: bottom it has Fo,x & : '::"'''':''.::S. Inc. Do you
see [hOot','
A Yes.
(.) ll:an't rcJ.u this form. hut '.\.- _,..: you knew.' \\:liy
Fox & James. Inr.:.. is on','
t\ 1l1is is a I.:t.:rtiticatt.: of ins~-:,::..; ;:':iLit.:nl.:ing
thl.:m as ..In i.u..lLiitinnul namc.:d insur~c.
Q Do you know why lht.:y'r~ ::.:..-::.:Ii.l."i i.ln udLiitioni.l1
Insured'.1
Page :5 .. Page X
1~3
"-I
I:,
1--
Pa~e 10!
Q Is there any recording of that interview'! - I
,\ "0. I 1
Q Did you take any notes when you were talking I 3
.1 to him? 14
_ A No. 5
n Q Do you have a personal file on this accident'! 6 ago.
AVes.
Q Do you have that with you'!
A Ves. I do.
Q May I see it?
MR, PRICE: First I want to make sure there's
I: nothing from our office in there.
THE WITNESS: I just grabbed the whole file.
MR, PRICE: The top has letters from us.
(Brief pause taken off the record.)
(File handed to Mr. Dowling.)
] - BY ~IR. DOWUNG:
Q In your investigation. Mr. McQuaide. did you
[9 detennine that the trailer was a McQuaide trailer'!
A I don't recall. I haven't reviewed any of
:] this prior to this deposition.
Q The first thing I'm looking at here. I just
:3 wonder if this would cbrify it. It has an accident fonn, :3
:-1 Is this a :V!cQuaide fonn'!
A Yes,
Randy E. McQuaide
,\ It would be a n:quin.'1l1L'rlt of Ih" I"~",,
1 Q We'll get 10 the Iea.<< ~t in. moment
J Old McQuaide k:lSl: from Pll lhe tra.:lor or the lra.:tor oUld
... IrJilcr'!
^ Tractor.
" Q And the trailers m.y he: whal"wr cumpolllY
7 you're hauling for, you ju.st pick up Ihu"" lraller<, "
S that com.-ct?
9 A W, C. McQuaide d"". uwn lrailers. hOl'ewr. If
10 I had J lraller number ( could tell you if th" he:lonb",d 10
II ~lcQuaide or it could have h.:en anol"':r camcr.
Q ('II show you the pnlice JCcidetll report. It
IJ Indicate. Ihat Ihe carrier is W, C. McQuaide. Inc,
l~ A TI1t:Y don't havl: cquipmL."n1 numbers on llen...!
Q There's an ICC number if that helps.
16 A That ICC number happens 10 he: McQuaide's
I ~ current number.
Q So is it fair to say that lbe traikr wa., J
19 ~lcQuaide ImBer involved in this accitk.-nl','
A I have no wa.y of knowing that without ~'CIn~
~ 1 some ~ of identification of the trailer.
Q When did you learn of this accident'!
A Shortly after it oceumd.
Q Did you interview Mr. Blystone'!
A Ves. by telephone.
~
I:
15
18
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.,
Susan M. Simon. Reporter-Notary Public
Condenselt !
I'a~c 9,
Ucccrnber Ill, 1')')')
PJ~C II
CJ \\ r.c::-~ It ha... :r.c: lrul,;k n~mhcr jnd tr;ukr
2 nwnhcr"
^ Okay. that tr:llIL-r numtx.T i!t I.:on!ilstc:nt with
J
.. OUN
5 Q \\ bt IS llus body mjury. 85.000"
t) 1\ These.1tC reserve:s from lh~ insllr.1ncc .,;ump.1OY.
7 esllmates
8 Q 0"", ~ICQU11<!.: ho"e 0 deducl1h1c "I' 0
I.) self.insured ponl0n','
A On,'
Q On bnully InJl:I')' claims'.'
" ~ll, \\"~ did .. at that time \\'C w~rc with
13 Lihe:ny ~Ictual under 0 retro plan,
J -I Q I :jjc:d oJ discD\'cry request .:ltlking for
1:5 survcillanc.:..1l1u you mdicatc:d none. This letter here lIf
16 March of '9Y mdica~s th.:u the;: surveillance repurt
17 exists.
III
II
I:
\fR. ?R!CE: Tr.crc'~ one in that fih:.
\1R. :>O\\'U7"G. \Vcrc you aware of thar!
\tR. ?RKE; I \\-'ould have bdit:\'cd thaI what WI.:
had gi\'l..'n -. \I,.'a...; that on the titst discovery request or the
Z:! second one!
\fR. OO\\iLt:'G, First om:.
\fR. ?R!CE: Should have bt:l:I1 gi\'~..n. If We h;1l1
the information. Tnat'~ the file from :v1cQuaiut.:.
18
19
1:0
11
Page I:!
\IR. DO\\o1.1:'1:G. \\r'cll. you have.: a duty to
suppll.'mt.:nt sorr.~thing: you havc It.:::uned about since thl."Tl,
\1R. PRICE: That's \vhy you have that tile in
ynur lap,
\fR. DC)WU:'I:G. But we askcd for it some time:
7
\fR. PRlCE: ! '.\-'ould have thought that it would
g have hC't.'n ~!vC':l.
9 \tR. DO\\1.:;..:G It Wil'in't.
]0
]1
BY \1R. DO\\o1.r:-;G
Q Do you have: :ll.:on~"T1[ to scnle clause with
11 Liberty ~futuai'?
:\ I don't know.
]3
1-1
\1R. DOWL~G, Is it all right if I have these
15 copied?
\fR. PRICE. CJn r S(,.'\: wh:J.lthcy arc','
(Documl,.'nt5 ~anded to :Vfr, Price.)
\fR. PRIrE Sure.
\1R. D()WI.l;-..G \Vhen: is thl.: video'? r want to
10 ohS(.'r,'c that h~forc :::~ 2~(h,
\IR. PRICE : Jon't h~\"c the \'ideo in my
]6
17
,
]S
[9
:1
"'''' posscssion.
\lR. Dl)WL:Vj, Do you know who ha.o; it'.'
\IR f'RIC2 :'11 rind out.
1-1
I.."
!--
Page () ~ Pagl.: I~
Rand E. McQuaide,
I UY MR, DOWlfl'G,
~ Q Mr. McQuaicJc, do you have a copy of Ihe vi~eo
l of the sW\'e,lIance"
4 ^ ('m 001 awan: if I do,
5 Q So it's jusllhc: lllIl:lor lhal's leased; lhe
b lr.1I1c:r IS owne<.l by McQuaicJc'!
^ Yes.
M Q Why do you lea.\C "ac["r< .1I\d nolown Ih.'lTl as
" well"
1tJ A At that lime:. it was a decision by Harold
II Wilh:unson to lease. We have since .. we've purchased Ihem
I~ oUlnghl since th.'I1.
IJ Q Cum:ntly you own Ihe lroCIOrs'!
14 ^ All buc just a couple. We're phasing the
15 leased tnicks out. It's not cost effective to do so, to
16 lease.
17 Q [5 Ihe company you have leased Ihe troc[ors
18 from. tmelor from in this case.. [ guc:ss the: company F/J
19 has been listed djfferenlly. I've sCt:n il fox & James.
~o While Truck Company. fox & James. loc.
11 Do you know if there arc differences or if
:1 it's all the: same',l
13 :\ Personally I'Ve Jlways known them as Fox &
:~ Jamc:s.
15 Q Fox & James what','
I
Page 14,
.-\ Just fox & James. I imagine they sell trucks I
~ as well as lease them. so F/J Leasing might he a division
3 of theirs,
4 (6'page documenl. Truck Lease an~ Service
, Agreemenl. d.1led 19 ~lay 1999, and Affidavit. daled Z9 June
b 1999. produced and marked as McQuoide Deposition Exhihi[
i Nwnbcr 3.)
S BY ~AR. DO\1i1.I~'G.
9 Q \\bat I've done. Mr. McQuaide. is Exhibit 3 is
10 Ihe lease. and Ihe lasl page of Exhibit 3 is an affidavit
II hy Douglas Jessen of Fox & James.
I:: Dcxs Exhibit 3 contain the Icasc conct:ming
13 the vehicle that was involved in this accident'!
14 A Yes.
15 Q You r re looking ilt the attachment to the lease
I (i which is a truck lease and service agreement. schedule A.
I':' is that correct'!
1 X A I'm looking at schedule number I.
19 Q DOt:s it also imlicme that it's a truck lca.~
:0 ..!.nd service agreement. schedule A'.'
:1 :\ Dh. I'm sorry. yes.
..."" Q And the:: tractor involved in this ~lccidcnt was
:3 a 11)1)6 VO!VO',l
:~ A Yes.
~5 Q And ~rial number.! Victor ~ William David
Susan M. Simon, Rcportcr-Notary Public
Condenscltl "
Page IJ :
Dcccmbcr 16, 1')1)')
PJ~~ 15
I IlnJn JJ1Ol:' IIJ1T)' =() ,
2 ^ Yes
l Q l'S1:f1:"}"
.& AYe"
Q Now. you ,,= pre"-'I1t dunng Mr, Dlysl()OC"
fl dCpll'iltlOn whl."T1 We t..11ked ahouI mJmh:nanl..'e nn lites..:
, ,'eludes'
M 1\ Yes
Y Q Could you explJIn 10 me how Ihal works
10 \'IS'J'\'I.S fox & Jarne;o; .lluJ MCQUJ.1Cc','
I J 1\ As I recall. w..: hat! a mamll.."t1ance Olgn-cml.'T1l
12 with Ihe 1""-,,, when: Fox & James pcrfonned JlIlhe
I] m..llnh.."f1ance
14 Q So that would be a .'iCparalc: agJl.\."tT1l."J1t from
1$ wh;Jt we have here in Exhibit 3. this mainll.'t1ance agn.\.'tlll."T1rl
16 A Yes. it's ilCm :1umber 3 in the lea.'iC.
17 Q Okay, ~o the :naintl."J1ance agr\.'t:Tl1eMt is
HI conlained within E:un bu 3'.'
19 A Ye~.
=0 Q How oftl,."t1 Jre :hesc ~. is th~ maintenance with
21 rcgard~ to just the tr:lC:or'!
22 :\ That's com:c:,
:3 Q Would ~fcQt:aa.!e do theIr own maintcnanc~ on thl:
24 tr.lilers','
)S :\ ll1at's COITC~:.
Page 16
Q Would Fox", James employees come [0 Ihe
2 ~lcQuaic.fc= tl.'Tll1inal mu do th~ work. or would the tr.l~~ors ht:
3 taken to a Fox & larr.cs loc:uion'.'
oJ r\ They normally would go to the Homcr City
5 warehouse of ~1CS \\'r.~ these trucks w~rc kept. or a ili1\\:r
6 w()ul~ take [h.'I!1 to the Fox & James facility, They 'muld
7 pick them up and mkc :hl.~ to their facilitit:s,
S Q \\lhat is the iOl.::ltion of McQuaide. what is thl.:
9 address?
10 A Corporate address is 153 ~Iac:ridgc. Avenue.
11 Johnstown. PennsylvanIa 15904.
I Z ~IR. OOWLI"G, Off the rccord.
13 (Ilriefpause :.:tit.'ll olTlhe record.)
JoJ BY \1R. nowu:-..'G;
I; Q Under Ihe second puge of Exhihil 3. looks like
110 item 7. drivers, If yot.: refer 107 ahout whcrc it says F.'J
J 7 agrccs to assist custo~c:" in developing a drivt.:r cduc~lI(ln
I S safety program. Do you St."'C thur!
19 :\ Ycs.
110 Q Did Fox & James aSSist you in doing that'.'
:1 A I can'tanswc:" that, "mnotsurcifthut
I':: would have hL~n Ihrot.:g.h Brice or Roh \Villiamson,
:3 ('\ Did Mr. 8[v;;tonc rcceivc :.tov disciplinarv
I' . . ,
I:'; Jction as a result of rr.:s '-Iccidcnr,'
1:5 ..\ ~n,
Page 13 - Page 16
Rand E. McQuaide
Pa,c 1-
,
I
Q POllr h. Al1I;U'1 ~Ih Ill' "17, Mr Illy"n""
: ref.m:~ 10 n.'CClvln~ a warnln~ ahllut I,,"n~ loll<:, Wen: ynu
l awan: of lhal'!
.. t\ Nn,
5 Q Are you aware nr any ~isciplinJl)' "'tllm Ihal
" Mr. Blystone rt'CCivctJ pnnr to August KIll of '97'1
1 1\ Nu, I'm nut.
~ Q W..., M.Qu.lI~. wllhn~ 10 ~l'e Mr OIy"nn.
'J addillnnal J.;';!tl~nn~nt.'t Jfi..:r tlus J~cilkl1rt
III "W. ~illn't hav. IhatoptlllO at II.. lime, lie
I; in~ieal<:~ h. ~illn'l want 10 hi: ~ispalChc~ unllll", ,k:ellJ.:~
I: whal h. wanls tll ~n. lie had in~icaletl mayhc wanlln~ In ~.I
13 into construction.
101. Q My question IS a Iinl. ~irret\'11t Ihan Ihat,
I! My qUc:scion is W3.' McQuaid. willing 10 gll'. ~Ir, Bly"on.
16 additional assignments'!
I 7 A Yes. He would have been hrought III I' or some
I S retrainin~, hUI he ha~ a good LmplllymL'01 record w"h
I 9 ~lcQual~e.
10 Q Going for retraining because of the accllk-nl'"
::1 ,\ Yes. it's sUndard policy.
....., Q Anytum: a driver is involved in Jr\ Jcciul.."1lt.
13 they come in for retraining'.'
:~ ..\ Yes.
:5 Q Did you do any investigation of thiS accidc.:nt
Page I 8
I other than talk to Mr. Blystone'!
: "No. ( did not personally.
3 Q Would you have been the person to investigate
a this accident with McQuaide. or would there have been
5 someone else'!
o A It would have been handled by Carole Sloan.
Q And she's employed by McQuaide'!
S A Yes.
9 Q What is her title'!
III A Human Resource Managcr.
II Q And you are Human Resource Dill:etor'!
I: .-\ Yes.
] 3 Q Did she. in fact. investigate this accident'?
IJ .-\ To my knowledge. yes.
15 Q Does she have a file on this'!
] 0 .-\ That would be this file here.
] - Q The one you have with you'!
IS .'\ Yes.
]9 Q As far as you know. is the file that you have
:0 brought with you complete'!
,] .-\ As far as I know. yes.
" Q Othcr than what Mr. Price took out moments
~3 before I looked at it concerning communication \vith
~~ counsel. as far as you know it's complete'!
,; ..\ That would be the complete file.
Susan M. Simon. Reporter-Notary Public
CondcnscJtI ',1
December J h, (1)1)1)
PJ~~ IQ
Q WllulJ ynu reler tll the last page Ill' hlllhll )
: which" lhe am~avllllf Mr, Icss<."n, Woul~ you
l '(lI.'Ctlieally refer 10 1l<"l1l ~ or the affi~avll,
~ Vnder ilCm ~ ~Ir. I,,<<:n avers Ihal pur'uaot to
5 lhe loa..., agn.'mlI.'Ol -- I'm paraphrasin~" W, C. MeQuollJ.:
" agn.'C~ to Illd.:mniry Fox & lames. (ne,. ror all 10'''''.
... damaycs. dalms. IOjuric!i and CXPI,.*I1SCS which ml~llI n:~ull
.'i from Ihe h:a."-.: agn.-cml,."t11 ur use or opcr.JtIon of the
'I \'chlc!c.
1]11
ill
Cnuld ynu show me when: in rhe: h:J."iC
agn.'-"Jll'-'T1t. ExhJblt J. it inLiicatcs Ihal',' If ..:ounsd Wanl..
I: (0 J.'\Slst, thal''i linc.
(Boer pall..., rak.n 01'1' Ih. rceor~,l
nil:' WI~r~ss. Luoks Iikc umJcr IO,,J of thc
13
,101.
,
Il~
fcase,
J n OY \tR. DOWU:-';Cj;
I ~ Q Be'll par~on'!
IS .-\ Item II).J or Ihe le3..... I helie\'e,
Q Let me lind where that is. ~Iy copy IS cut
:11 ofr. II woul~ he on Ihe third page. where il ha., the lI11ro
: 1 lb."Tl1 down from the top'!
:\ Yl!ah. (belie..-e th<1t':; it.
~1R. PRICE: Probably under :-A too. ll1crc'",
;-1 langua.gt: In thl!rt:.
:19
, ..
,-.
:;:
Page 20
BY ~IR. DOWLr.\'G:
; Q L.:t mc read thc first part or item ~ on .. you
i 3 ::klY it's ll)-J. itc."m 10. subsection -L It's <1Ctually
a IIl.A.a.
5 A 11l'A'~.
o Q Let me read out lou~ for the recor~ ,he lirs,
i part of that so we can discuss this. It says: Customer
8 agrc<s '0 rele3."". indemnify and hold F/J hannl." from "nd
9 against any claims or causes of action for de:ath or injury
10 to persons or loss or damage to property in excess of the.:
I] limits or the liability insurance.
I:! As I'm reading that. I'm thinking that that's
13 .:m agrer:ment for matters in excess of the limits of
1-1 liability insurance. Am I rC<1wng [hat correctly or
15 incorrectly?
I () ..\ It .seems to be correct.
]' \lR, PRICE, Read subp"ragraph },
IS .\lR. D[)WU;\'G. \Ve'l( get thac.
19 BY ~m. DnWU;';(i:
:0 Q So if it's within the limits of liability th~l
':1 dau.'C \\.'ouloo't apply. is that a fair 'iW,h.:mcnl'.'
~1R. PRICE: Ohject to tlIt.: fonn. Thes.: arc
;3 legal cooduslnns on the 4ul.:stion:; you're asking him.
~-1 nlE WITSESS; I don't !loncstly know
"':; \lR. DOWI.!:-.'G: ()k~y Mr. Pril.:c. dn you want me
Page 17 - Page 20
10 n:fcr 10 lhe one .lho\'t: thal. Ih:m J'.'
: MR. PRICE y~.. If you'n: look,"~ for lhe
1 Ind<.'l1lI1lfic.lIon 1:1II~""iC n:f.:m:d 10 In the .ffid:>vlI.
. BY MR. O()Wll~G
5 Q I'm n::>dinlllho: flnl pan of lIem J. If
/) cuslomer is obli~.laIto procun: and nwntaln Ii.hllily
7 iO!<w.IO''C:1IId f.i1. In do so. or fall. to furnish FIJ
M requin:d ~vldl."nl:~ of insurance. customer o;hall ind~mnlfy
'. and hold FIJ harmle"",,
III So I'm n::>ding Ih.l. Mr. McQU:1idc. hy "'Ylng.
II well. you did procun: insur:ll1CC. so thaI cia",", wouldn'l
11 apply'!
IJ A Com"t.
1-4 Q Any olhl."1' ponlon of the IcJ.1iC you want to
J 5 refcr me to that suppons itl.'m ~ in the: affida\'it'!
In MR. PRICE' You h.ve . par:>gr:>ph 6 you e.n
17 reod 100. I guc.. -. let's go off th~ record.
IS (Discussion held off the n:eord.)
19 ~IR, DOWlISG: One of the: ill..'":llS we nOliced here
111 for the deposition is lhe individU:11 .t ~IcQU:1ide ,hal would
11 discuss the 10..", :>gn:en1<'I11:1lld the affid:>villhal you
,. submilted. You indica", lhal u
:::3 'mE wtnOESS: I would rather have: eounsd
:~ discuss any lc..-gal u
:5 \1R, PRICE: I think when you're J.Skmg
Page 21
questions regarding legal conclusions and issues ~~
::: MR, DOWLING: I'm just asking his
3 understanding of lhe: agrccml.oruo lhat'5 all. I'm nol asking
oJ for legal conclusions.
, ~lR, PRICE, Then phrase lhem in th.t w.y,
6 ~tR. DOWUSG: Mr, Price. you \\o'':Ult 10 rere::r me
... to ilcm 6. substitution'!
S MR. PRICE, No. The lease spe:1ks for itsclf.
9 BY ~lR. OOWU~G,
III Q Mr. McQU:1ide. besides 10-A-3 and 10-A-4. is
II Ihere anything else in the le= that supports paragraph 4
I::: of th~ affidavit?
13 A [don'l understand what you Ire getting at.
14 ~lR. PRICE, If you know. And he e.n refer to
15 I:ounsd whl:tl we have:: an opportUnity to review, I don'l
10 Ihink a deposition is the type of scenario to go a'iking my
1"7 c1i~nt to interpret a lease agn..-erncnt,
IS TIlE Wln:ESS: Thiltls what I pay law~/ers for.
19 honestly,
21l BY ~lR. OOIVU:-.'G,
.:: I Q Okay. let's go on, P:J.r<J.graph 5 of th~
..., affidavit would you refer to that. That says: 1l1~ unvc:r
'::3 of the.: vchicle was not the employee: of the Fox & James.
:~ Inc.. and not acting on instructions dther expressed or
::::: implied of Fox & James, Jnc.
Susan M. Simon, Reporter-Notary Public
Condcnsc/l! "
Page 11,
December Ill, 11)1)1)
PJ~C ~J
t\ Y\-,,1h. hI.: \\oJ.\ nut In ...~pIO)1X uf Fox &. JJ.m..:s
Q Old F.., 8< l:>rncs ha\'e any In\'01l'<'I1ll.'I11 In Ih<:
1 routes Ih.l Mr Ol>,tooc Ir.\'eled"
A No,no
1
~
Q Wnuld you n:fcr to par:>gr.1ph 6 of Ihe
amd.1vil when: II "'Y" PurSlJ;1nlIO lh<: I...... ~."."'nl.
MeQuallle 1I.'Tl\41ocd Ihe "'-'I1eficial owner for lh<: us.: JOd
..:onlrol of the ..;uh,..:ct molar vehicle anll Fox &. Jamt:"i wa~
merely the IIIl.: ll",ncr .mll has rlC\'Cr J'(lo;~s~d uomtnwn,
,,:uOlrol ..
A I ha\'c 'iomcthlO" difr~n.oru lk:'n:,
Q I'm ,.Iklng ahoullh<: .ffid.vlt hy
~1r, JC:SSl."I1.
A Oh. okay. "m sony
Q Wnuld you refer to Ih:m h of that aflitJa\'H
where it indicates that pursuanl to lht.' 1e:a."iC agn.:r.."111l."nl
McQU:1ide """.lOed Ihe "'-'I1elici"1 owner for the "'"' and
18 control of lhe- subicct motor \',,-,hlelc.
19 t\ COITCl:t
Q And Fox & Jaml.:s was merely Ihe: ruled o\\.nl.:r
21 and has ntvcr pOSS4:sscd dominion. conlrol or aUlhonry over
11 lhe.: subject motor \'chich:.
A Correct,
Q Could you show me when: In the: l~ agtl.'t.."mI..":1t
i:::5 il supportS pamgraph 6 of the aifid1\o'il'.'
5
I 6
I 7
I H
1'1
flU
I :~
IJ
I~
15
10
17
10
23
2~
A Speellicaily. no. I don't SoX it here, I'm
::: sure I'm overlooking it.
~1R. PRICE. ThaI'S tine. if that's your
Page 24
3
4 answer.
S
6
BY \1R. DlJ\VU~G
Q Would you refer to plll':lgl':1ph 7 of lhe
I affidavit when: it says Fox & Jamt.'s has no knowledge: J.'i to
the circumslances surrounding the accident Do you ~-.:
thaI?
, H
II~
II
A Yes. I see that.
Q Wa.'i Fox & James notified of this accidl."T1t'"
A I don't know. hut I'm :-jure they were.
Q Bc:cau..~ iI'S their vehicle ..
14 A II's their vchicle,
J IS Q -- lhat was damaged','
116 A Yc:s, We would have notified them.
1-: Q Did they provide: a suhstilUh: vehicle, UO you
IS know, pursuanl to the lea."'-.' agrl.'Cml..'flt'.'
19 A Pronahly. f'm nnt positl\'C.
Q The photographs th':ll were marked a'i an exhthn
,}I with Mr. BlyslOne, do you kocw,,' whu took thosc','
A It was ~~ r can't think of thdr name
:::3 ortn<1nd. I nclie\'c it's righl on tht: form, Rapid CI<1lln
:-l S.:rvic.:s.
11
I)
:0
"
12; Q \';110"
Page 21 . Pag~ 2-l
26
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF DAUPHIN
I, Susan M. Simon, do hereby certify that before
me, a Notar/ Public in and for the County and Commonwealth
aforesaid, duly commissioned and qualified, personally appeared
RANDY E. McQUAIDE
who was then by me first duly cautioned and (sworn, affirmed) to
testify the truth, the whole truth and nothing but the truth in
the taking of (his, her) oral deposition in the cause aforesaid;
that the testimony given as above set forth was reduced to
stenotype by me in the presence of said witness and after~ards
transcribed by me or under my direction.
I do further certify that said deposition was
taken at the time and place in the foregoing caption specified.
I do further certify that I am not a relative,
counselor attorney for either party, nor am I otherwise
interested in the event of this action.
IN WITNESS WHEREOF, I have hereunto set my hand
this 11th day of Januarj, 2000.
NOTARIAL SEAL ~
SUSAN M. SI/.:O:I, :Iot:rj Public
Harr....!-urf" r"~"....;., "'ou'"
,~;,j ,'J' -:............4V ..J ..
I ...... '.,,";;4'" 1" ': "
. My c~:::::~::.::.:~.; :::::::.::.:. _C J.
c::-'
:,. -:"1 '-:;' <
'" 1t~Z? 11 _' It'. O'/': -"l
Susan M. Simon
Reporter-Nota=y Public
The foregoing certification of this transcript does not apply to
any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying reporter.
....n-22-9910:3d E.Pa-i.;:..:a./C.abl.. In~. ........; "-,c,=, ....__Q
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tc;'~:.;:. ena, -, NaIllIInl LIBERTY fw.
~:vr~ ~ :::=:'0/ MUTUAL.W
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STATli FUel STA'rD NlC
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P 0 IlOJl 607
LATRllIlE PA 15650
-.J
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PlTTS2UilGH,PA (aoo) =-31100 7/22/96 YBlZ
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-- .-"'''.- - --.- to.. '1"j:.T'V Wl.JruAL. C%Cl1:'....~ -..eft Il'IIUl'St\Q u 1& !i/o.)tGtd ... no. CJll'\lN~
"'If / QJ1IIx.
"
EXHIBIT NO..z::::..
I.J -1{;-1'i
_lUll. SIIYI.!W._
..... TO
I...
.
,
i
'Q.AlWCl"t:IACC~'U.
115 UNCS CRANT DR.
BALA-CYYWYD,PA 1900+
CONTACT: RZESE. 1
P~~~1S'S39-5500
\i~qH.~IDE
UBERTY'"
MLTJAL.~
L.>oo, _eo..
""""'IHfClAn.
~IOc MJMI"
.......OATI;
09/18/97
..
...
...
Z3595+a
CLAAl_
EXT 5566
OS/OS/97
AB303-0USOZ-99
""""'-
ATZ7S100151+037136
IHIUI'IO CI'IAA TCIt
t:1!. ,,~,.nN'lt .11:'F~R'C"T
ADJUST PAID
CHAllCZ CODE' 'AHOUNT
COI{
TY?ES ?ROVIDER
SZRVICE
nOli THRU
COLL
OS/08l97
1+151.SS
1+161.88
'. pAY~ENr SENT Tal
WC IlCQUAIDE
sua TOTAL 1
DEDUCTIBLE
sua TOTAL Z
'I/!r:iHOLDIYC TAX
CHEC:< AHOUNT
l+~S1.aa
500.00
13661. aa
0.00
13601.88
CaLL: COL1.!Srmr
COVERAC:;; H?:;;S
AD:usr~ENr CODE Nor:;;s
EO? Nor:;;s
EUCLOS:;;O p1.EASE FIUD A COPY OF EsrI~Ar:;;
Z3 S 5540,9
I ~~~E I
UBE~it
Ml.iTUAL. "
t..::.enY\lacllalCrDvIII
'C
AO- 23 696439
"~
~
I ". -, 1'"' --. ~ ' . : ~II.I ,'Ii)
109/18/97/ AB30,-OSSSOZ-99
'lelC IF '-lOT "IlES~fEO I'\'~IN"-"'CH~~... J.8CVe CAre
PAY TO THE ORCEi'! OF
'<IC ~COUA!OE
WC MCQUAIDE INC ErAL
153 HACRIDG:;; An
JOHNSTOWN,?A 1590+
USA
I PAY ~~ 1 J 561. 8 S ..
f " r ,/>. .'
J!:--,\ ~(~4~ 0
.. --7--;;----;-----
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'Ie,:" "";":: ','j 2(C~:;S CF ? 1 3 6 5 1 . a s ~ .
.'
~
'1alionaLaase
'.,.~,
o LEASING COMPANY
TRUCK. LEASE AND SERVICE AGREEMENT
THIS AGREEMENT" mad". o('he 19ch d.y ot Hay
O. Box 607 ROllce 30 Easc L.1crobe Penns'/l'/nnia 15650
II OUSIN . l)tI'lCIOl .1. ".,.,_ _
153 ~lacRid~e Avenue, Johnstown, Pennsylvania 15904
,19 95
(hminatw FtJ-.
. wholC' address is
(hereinafter C;.lSI0mcr).
EQl:IPMENT C'OVEHtD AND TERM:
A. F. J "'Cf.t:CS 10 luse' 10 CUllomcr and Cuslnmcr .srees 10 luse rrom F I J the vehlc!es on Sc:\cdulu" 1tllched hereto and Irom lime to lime here.
.(ler executed .1nd mOldc r':&r1 tlr thlt "'crcrmcnl (hcrC.1(lcr VC'I\lcIClSll. EJ.cculion or Schedulu A. sh~1I constllule Cunomcr's .authoriulion 10 F/J 10
.c4UltC the Vehicles. rhC' ^Crcemcnt shOlIl become' drCC11\1'C Wllh respect 10 c:Jch Vehicle on the date the VC:llclc ..tendered by FtJ 10 CUSlomcr. or 48
loun ;alll:r "ll: d:uc ~ J nOllfies CU'lnmcr Itl:Jllhc Yctuclc IS ,)v;ul.Jble rM dellYC:ry. whichever occur: rinl. .nd shall conlinue for tht lerm speCtried on
jChedule ^ unle:\~ lermln,lIed earlier u prOVIded hcrelnafler,
B, ACCei"13nCe n( Vehicles In serviCe conslitules an ~elr.nowledgemenl Ih311he Vehicles comply with C'J.1lomer's specilic.:uions. Customer agrees to
l.1y (or .2n)' uructural ~heraliuns (nol to be made ...ilhoUI FI J's prior ...ntten consenll. special e4uipmenl, or m.uerialalleration in painting,teuering, or
:rl work Ihere:aflcr re4uired by CU)lomer. In Ihe evenl th31. subsequent to the d;ue o( eacculion of Ihis agreement by FIJ, any Federal, IUIe. or local
JW. urdinance, ur regul.uion shIll require lhe Insu,lIlllon or any 3ddltlon31 equlpmenl. specifically including bUI nOllimiled to anti-pollution orn.(ety
::\'I('es, CUflomcr shall be responuble (or Ihe (OSllnerco(. Includln!: l"sunation e~pc:'tses. F /J agrees 10 e:tl'ler inslall s.ame or arrange ror the :nsulla.
,on of same and Customer agre:s 10 pay F 1J Ihe full cose Ihereo( upon reeelpl o( F I J's IRvoic: ror same.
C. Where iI Ve:hicle is openlcd by Cu:nome:r with.a lrailer or Olher equlpmenl nUl Included on SC:l;cdules A. or not m3inlained by F,J under a
e;t3ralc 3greemenl. Customer warrants th3t such tuiler and/or equipme:'Il Will be in good operallng condition and notwlIhsu,nding anyolher ~rovlSion
)( lhls agreement will indemnify and hold F: J harmless against any claim or loss ordam~ge resulting from C;..ISlomer's (allure to properly mai~laln SOlid
:ailer and. or equipmenl.
O. F' J may fin3ncc: the Vehicles. or any pall lh:re:o(, and In th~t conne:Ctlon may..as sec...rlly. 61---e :he lender.an IOsullmenl sales ins:r...ment.
:longilge. or securilY 19reement eovenng such Vehl(:les or lsslgn 3mounu due here'.Jnder.
:. OPERA nON OF VEHICLF.S:
A. The Vehicles ""111 be oper3ted by Customer only in the :'Iorm31 .and ordlnOlry Course of C:Jstorne:'s :2usine~s. not in Violation or any law. rule.
-:gulauon. statu Ie or ordinance (inClUding legal weigh 1 limitations) and Customer Sh311 indemnify and hold F I J harmless (rom and against all fine:.
rfeitures. seizures, confisc:llions and p,nallles 3rising out o( any sucl'l violation.
B. E3ch Vehicle will be promplly returned by Customer to F,J's (:Jc:!ity speCified on Sc::'ccule ,~ ~pon the terrnin.uion of such :e3se ~nle=.s
':ustomer shill! have purchased the Vehicle J.S provided herein3(ter.
3. MAINTENANCE AND REPAIRS:
A. F JJ agrees to jJrovide from its (acilities: (I) Oil.lubnc3nlS. :I!:S. tubes 3nd JII other oper3ting SUPPlies 3nd 3cc:ssorie.s nee:sSJry (or :::e iHoper
lnd efficient operation o( Ihe Vehicles: (2) M3intcn:lonce ;'jnd rep:\irs lneiudin; ",1l13bor 3nd pOlort.s whic:'! mOly be rcquired to ke:p the Vehicl:: in iOOd
Jper:ltlng condition: (3) ?31n1lng 3nd lettenng. Jccordingto Customc(s speclficJllons. at the time the Ve:\Ic:es Jre placed into service: (4) Was:ang of :he
'1ehlcles: and (5) Road service due to mech3nicOlllnd tire (ailure.
B. Cuslomer 19re:s nOI 10 CJuse or permit lny person 01 he: tr,an F! J or j)ersons expr::;sly authori::d by F I J to make re;:airs or .1djus:~e~ts to
Vehicles. governors and olher lCCeSSOtles. When repairs Jre necessary. Customer Shll1 notiry FI J by the s;:e:diesl means o( communication l...ailabll:.
F' J will not be responSIble (or any repJlr or service: while such Ydllele IS :Ioway (rom F /J's (~clliIY. unle:;s expre~sly authOrized by F IJ aroc unless
Customer submits an actepl3ble 'louche: (or Ihe replin or service:.
C. Customer 3grecs to return eJeh Yehlcle to FjJ (or service ana ~alRlenlncc .1llhe (acility St3teC on Schedule A (or.1 minimum of 3 :'lours e3ch
.....eek during F /J's normal bUSiness hours at such schedule limt:.s as agr:ed by Ihe j:)arues.
.. FUEL:
The party dcsign:ued on Schedules A agrees to prOVIde (uel (or ::'e Vehle!:s.
A, When p; J is de:sign3ted:
(II Fuel. oil and lubric3nlS '.101111 be j)rovlded (rom F! J's (acilitles or 3t se:'/iee St3t10ns desIgn3tedjY F f J. The charges will be based en :::e RlIed
~:Jel Cost including all fuel lues 3nd adJustmenlS in the ch3rges ......Ii! oe made: ,u prOVided on SchedUle::; A.
(21 If Customer purchases fuel from sources Olher lhan F 1)'5 ;Jcllines or deslgn3::d service S13110~S. F!) wd! reimburse Customer rOt ~uch fue:i
:OH upon receipt of an Ile:':'llled paid InVOice, Such reimburseme:H ~,":.IJl not :xc:e::llh: Rated F:.J"l C;~l.
IJI F J wdl. where j:)ermltted by law. upon request o( CuStcrr:::. Jpr1y for ruelt;u permllS. pr::.J:e Jnd fii: (uellH reI urns. and ;:a;. ::'Ie :.1Xe~
m::lu~ctJ urun Ihe f'lurc~ase and consumpllon of (ue! by C.lS\omer provrDed: (J1 C "'Slomer Shll! pravree F J '.weel:ly .....lIh JIl Irt? records. ('..Ie: lockets or
:'1'''0IC:5. Jnd othcr records or documcnls rel.1tlng to Ihe use of the Ve,'lc!e: nccesSJry for the ;:Irei':HJ:IC~ o( the fuc:llH :e:ur:u and Cu.s:c:":':cr sh.:l
':tmbur,e F ) the .1mounl or ;'jny .1ddil,onJ,1 ehJ,q;e, 3Hessme:':.1. t;u. or ;le:':..3111. or cre:.]lt OI...Jllo......eO: J,S :. ~:5ull o( ''''nllmely or Imprope:r (t.::~:S::lng ~(
.UC:1 ducument, ur lnlormallon bV Cuslomer, .1nd (bl C'':Slomer soai: ,':::i\our~e F, J Jll such (ue! t.u:e.. ;:.1;':: on C:.ISlomer's oe!ul(:,y F,J In ::t::.... oil~e
':;el t.l.\e:, whIch ""ould "Jve bccn'DJYJCle ,'..LO the ruel consumed ~c:~ ::~rcnJscd In IMe StJI.: of eonsumpl :e~.: 'tC:;ll :0 the :,\len: IM31 Cuslo~e~ 'JOlal:':."
uet "" :ll.:!.CC~ .Ind In ;Imounn speclfic.:!.lly de..,gnJle::J 'oy F:J en:. F.~c! Prag~Jm ~Ignco oy F,r~ ,V13:':J;:~
H When CU~lomer 1\ deSI!;n.Jled
(\alomcr )hall Indemndy .1nd hold Fi) l'lJrmJcss agJrnSl .1n:.. ::Jrms or los) resulting (rom C~Slcme'r"i !.Jl!ure to ;101:' Jny fuel :.11::
1.l0:.'ISES:
,\ F J Jgrec~ 10 jHovrdc or f'.IY for :1'1: ~IJle :1'llllor '..ehrclc Ir':~~: :'or :he ilc:nsc:J we:gnl HO:Qwn j:'1 ,:;c~e:::uic '-\ Joe oe~svnJI rrope:~:. ':'.1;1:" rnr
:.:~~ Vehlc!e lR Ihe 'IJli: of domrc:lc, Jn~ :c:JcrJI hrgh',\IJ:I ;.J.\C : J.l. , ....i:~C' .I Pf'll1CJol<: , Jl lhe ~JI:: Jr,,:: "':"',c::o:od 'Jf ,n5eSsml:~:::'1 cife>::: or. ',-.': :3:: ;:
,":::'..[lon III cOlen '\chedult .\
H When permrl::::': by;"'...... F ~ 1.,,;1 "'ODi:> for ,u.::~ vlhe~ '.e:".:::.: ,c:;'s::, ;H,}rJ!C' or ,l3:: ~C'::C','::.: :.. ~IJt:~.1S C JSlJf":ie~ :':":.1:, from ',~e 'n :r~:
':";'Jc,t ",t C:J'lome~\ ,lIie :~1\: .11":<.1 :\;1e:'!'e
CUSl!,mcr al,en 10 PlY ror any speclll license or p~y ;iny lilles.required by CUSlomer's bUSIness resultln, rrom Ihe opeUllon ~nd "'Ie ot Ihe
:lel includinl mllule tues, Ion milulc lUes. hiahway or bridsc lolli, FIJ shall hne Ihe riChl 10 payor dileharlC Iny lien or enCumbrance
led Isainsllny Vehicle JS.1 rcsull of Cuslomer's railure 10 pay ~ny elJim or .1SScssmcnl for .1ny such C.1JCS .1nd CUSlomcr shIll promplly reImburse
r luch payment.
,UBSTITUTlON:
=/J Alrea 10 furnish I Subslitute vehicle al no Ulr.1 ch~rle ror ~ny Vehicle, olherthan those ueeplcd below, which may be lemporarilyinopcrable
~sc or mechanical failure. Ihe SUbslhule 10 be.as nearly prilC1icablc the same sile ,and lppCatilnce IS the Vehiele, CJcciU Ih~1 no sped.' painlln"
'Ina or 01 her alleriltions need be made on the substitule vehicle. The SUbSlitule vehicle will be furnished 10 Customer whcnever pouiblelt ~hc ~Iacc
lieh Ihe Vehicle WiIS disabled and shall be returned by CUSlomerto F/J allhe F/J facility from which ie wu provided. F/J shall havenoobli.allon
rnlsh I lubslltUte vehicle if Ihe Inoperable Vehicle is 01.11 afservice (or ordinary mlinlenance Ind service lime. or is oue or service bccaweordamase
ling rrom COllision or upset. or is specialized, or curies a [ruck body nOI owned b)' FIJ. is aUI ot service for repair or maintenance o( Ipec:ial
Jmene or 1cceuories (or which F IJ is not re:ponsible. oris o( I type F/J docs not have in iu renlal neel. FO.s f.lilure 10 furnish uubuhulc vehicle
n.a reasonable lime. where it is obligaled hereunder to doso. shall C2use Ihe charles Ipplicable to the inoperable Vehicle ~o abate untillhe Vehicle IS
"cd Co Cuslomer's service or unlil a subuituee is tendered 10 Customer. F I J's liability in the even1 of sueh a failure shall be limiled 10 lhe abalement
:e charges ror Ihe inoperable Vehicle. ^ subslitute vehic/e, while in Cuslomer's serVice. shall be subjec:t to alllhe lerms and condilions o( IhlS
:ment. While 1 Vehicle is out o( service bec.1use or damage resulling (rom collision or upset, F/J will. ae the request or Cuseomer, renl Customer.l
.cemcnl vehicte, it .Ivailable (rom FO's rencal Oeet,.l11 rental rale equal to the charges applicable ~o the inoperable Vehicle. IrrespeC1ive o(.....hel~er
H CUIComer renes a vehicle (rom F 1 J while .I. Vehicle is oul or service {or repair o( damage resulling (rom collision or UPSCI, .he d2arges applicJbk to
:UI ot service Vehicle shalf no~ ab.l.lC,
) RIVERS:
\. CWlomer agrees to cause each Vehicle 10 be operated onl)' by a sa(e, c.lre(ul, properly licensed driver, alleast 21, who shall be eheemployee or
. o(CuJtomer only, paid by and subject to CUSlomer's exelusive direction and control. Customer agrees 10 reimburse FI J in (ull (or 1011 or damage
:hicles. incJuding rel,:ued eJpenses, i( such Vchicle1 arc operated by drivers under 21. Upon receipt o( a wntten complllnt from F IJ speel(ying ~ny
:s.s, careleu or ~busive handling: o( Ihe Vehicle or :r.ny other incompetence by or o( ;any driver, :r.nd requcsling his remoyal,u a driver o( Vehicles.
.)mer will immediately remove such individu:sl ;u drivcr o( Vehicles. In the event that Customer shall (ail 10 do so. or shall be prevenled (rom so
~ by any agreemenl with anyone on Ihe driver's behalf: (I) Customer shall, notwilhsu.nding any ocher remedies o( F/J or provisions o( :rllS
:menl, reimburse F/J in (ull (or any Iou and experue sustained by F/J ror damage to any Vehicle whcn being operated by such individual ;and
Jmer shall rc1e:sse, indemnify and otherwise hold FI J completely harmless (rom and :r.g:r.inst any claims or QUsej or :action (or de:uh or injury co
ms or Iou or damage to property arising 01.11 orthe use or oper:uion o( :1ny Vehicle when being operated by such indiyidual nOlwithstlnding !h;at
':l.ay be designated on.1.pplic:sble Schedule: A.as responsible ror (urnishing :and maintaining liability insun.nce, 3nd (2) F i J may 3t iuelection, 3nd u
:me thereafter upon JOdays pnorwritlen notice to Cus~omer. terminate any Ii:abilityinsurancc :overage ;:2rovided by F,' j hereunde:'.lnd maY..1t Its
:on, with respect to e:seh Vehic:e, increase the amount o( Customer's physic:!.1 damage responsibliey to an amount :qual to the agreed vaiue
lied in accorcUncc with Paragraph II u of the time o( damage or loss.
oJ. F I J agrees to assisl Cuslomer in developing a driver educ:uion and safety program.
C. Cuslomer agrees that Ihe Vehicles will nOl be oper:1lCd by 3 driver in posse:sion o( or under the innuence or :r.leonol or any drug whic:, :nay
;.ir his ability to oper:ue Ihe Vehicle, or in a reckless or abusive manner. or ocr an improved .oad, or on a nat tire. or imprope:"!y 101ded, or loaded
:nd the manu(.ac:turer's recommended maximum gross weight shown on Schedule A, Notwithstanding any 01 he:' ~rovuion o( Ihis agreement.
:omer :r.grces to reimburse FlJ in full for damage:>, including expenses, resulting from a violation o(this proviSIon. Cuslomer.....ill be responsiblc!or
;~pcnses o(lowing or removal o( any mired Vehicle when not in F/J's possi:sion or on F/J"s premise:.
CHARGES:
.-\, Customer agrees to pay FtJ the fixed charge for each Vehicle in advance upon re::eipt at" F U's invoice (or same Jnd 10 pay all olher ::h.arges.
aiQlly including. but not limite:::! ~o, ~he mile:sge rate per mile provided ror under:his agreement wiehin 10 days o( the 1:lte of F U's Invoice .....ithout
.:ction or setoff.
3. Mile3gc shall be determined from odome~er readings. If the odometer fails to fU:1c:ion, whicn railure Cuslome~ shall immediately repor::o F! J
riling, the mile3ge (or the period in .....hich ~he failure exisled may be determined at F 1 J's oplion from (I) Cuslomer's :.ip records, or (2) from :he
unt of (uel con:umed and the miles per gallon record o( F/J averaged for lhi:: prcvious JO days.
.~DJUSTMENT OF CHARGES:
A. The parties recognize that the charges provided ror in Ihis .1greement arc based on FI1's current cost otlabor, PJ.r:s .;and supplies. The eO$l o(
~ opcra~ion may Ouceu;ue after the date of execution o( this agreement. CUSlomeragree: thaI (or each rise or (all o( 1% In the Consumer Price Index
~g a 1967 base period, published by the United Stales Bureau o( Labor Statistic:). above or below the b3se index ligtH!: on Schedule A. the fixed
5e and mileage charge (or eac~ Vehicle. including lhose charges Slated in Ihe Mileage GUJ.ranIY. if any. shall be ,)dju~led upward or downward as
ws:
Vehicles with::....:I:~ pro....id~-er-F-jJ: 1'/, 0' ooo'l"Iall 01 the tOlal cnat(;es
. .7.. Ye+I1c1~' W.ilHoul F1:lcl f2iovrdc;j'b~ F /1 "nd TrJller~: 1'/, 0' Il'1roe"our!l'1s 01 1M!! tolol! c:'latr;C~
9. Any and ~Ii' subscquent adjustments (or V~hicres shall be based on Ihe ch.1rg~s staled On Schedule A. AdjuSlmenls ;:'1 charges shall ~e cffe::lve
,1e first day o(.each c:slendar halfye:1t ;leriod and will be 'Jased on Ihe lalest index which has oe:n published ?rior 10 such effec:lvedafe.ln l:"'le eVe:lt
':onsumer Price Inde,'t should bc discontinued. anoeher mutually agreeable COSI .1dJustme:ll inde;.: to adjust chJr;:~ shall be :1gre:d upon.
C. Customer agrees to pay for (I) .1ny sale:; or use lax now or here:1fl:r imposed upcn :he use of the Vchlcle or or: :~c ~enl.1l or olhc~ chJ~ges
-uing hereunder, (2) any increase in license or regislration fees. including rederJI highw:1Y us.: ::1X. vd'llc!e ;nspecllOn re~~. and j:le~~onal prope:-::,'IH
'~. or (3) any new or additionallu or governmcl'Hal (ees. .ldopled a(te:, Ihe die o( the c~e::::Jllon oi the appiJeable Sehd'..:I: A ':Jy C:.Ulomer. 'Jpcr: :oe
orovided by F I J,
;SURANCE:
A. Liabilitv Insurance Respons:bijj(.,
(I) Sta'ndard policy of aUlomoblie liability l,nsuranc: {h:~e:1{ler LiJ bility Insurance I wnh limits spec:fied on eJcn SC:ied ule A shall be [u~:1lSnc:d
maintained by the party designated on Schcdulc A at its sole :051, wrilte:'l by.1 eomp.1ny salls(actory 10 F /J covenng ,oth F/J olnd Cuslome~ JS
:reds (or Ihe ownershIp, mainter:3nce. use or operatIon oftne Vehicles and any vehicle 'x:ng prOVided .u.1 subSlllu:: therefor, Such policy ~hail
'Iide that .:overage Jf(orded cannot 'Je ~ncelled or m:llem,Jly altered without JO days prior 'J.lnl:e~ nOllce :0 oOln ;:JJt!:es. The ~art'! de:lgn.1led ~hJil
:uh to Ihe vthe~ i'arty ccnilicJtes :0 eVlr' "', compliance 1101111 Ihis provl~lon.
(2) Upon pOl 1m lhan 6Od'YI ptio, ';;;;II,n nOli.. to CUllom". Ff} sh.1I h." lhc ,ilhllO ."min.tc Liabllit; Insu'~n" eO''''le m"nllincd
Y F!J ',na CUllomcr ,hall b'.ObliplC~ 10 pro.ure and maintain Liabilily Inlunn.e in Ihe Iimil1ICI (orth on Schedule ^ IS o( Ihe .((ceti.e date o(
;rmlnallon and Ihe charles wIll be adJullCd a..o,dinlly,
. (3) I( CUllom" ~ oblilmd to p,oeure and mainllin Liabilily In.lunn.. and (ailJ 10 do 10. 0' (ails 10 (u,ni,h F/J Ih. required evidcn.. o(
...uranee, Customer I~~U Indemnify Ind hold F/J harmless from ,and 1IIInsl In)' clJlms or causes of Jction (or dc:alh or injury 10 penon.. or Iou or
.amlCc to pro~cn.y.arlSlnl 01.11 of or CJUle by ,Ihe, ownership, mJinlCnlnc~. use, or opcrllion of In)' Vehicle. lnd F I J is JUlhorized bUI nOI oblilllcd 10
rOCUte I~ch LI~bIIIlY (nlurance, wUhoul preJudice to any other remedy f I J m.ay have,lnd CUJlomcr shIll pay F I J. Jladdilional ,cnuL the amOURI or
Ie premIum plOd by F/J.
(4) CUllomcr Ilrees to relclS', indemnify, Ind hold F/J harmless (rom lnd JI.J.insl 1ny clJims or c,Juses of acHo" ror dealh or injury 10
er~ons, or loss or damase 10 properl)' in eaeeSl of Ihe Iimlll of Liability Inlunnce, whelher ;Jroyided by F IJ or Cuslomer, al indiuled on Scnedulu A,
f1~lnl ou~ o( or Cluled by the ~wneflhip, malnlenance, use or oper,l.lion of any Vehicle leased or furnished heleunder,and any sueh claims or au"s of
.:lIon which F/J Ihal.l be required 10 pay 1IS.a rcsull or .any 1111utOl)' Icqulrcmenu of insurance and whiCh F/J would not olher'Nlle, pursuant to thc
:rms hereof, be requited 10 pay.
(j) FJJ will. where required and pcrmiued by r.aw, upon lequest of Ihe Cuslomer, rile 51 lie and/or InlelSule Commelee CommiSSIon
:ertilialu of Automobile Liabilily Insurance coycnnllhe Vehicles. CUSlomer .:I.&Iees to indemnify, derend, Ind saye F/J harmlelS from III cairns,
luses of .action. suiu and damalel arisinl 01.11 o( rilinlsueh documenlS ror vehicles other than leased Vehicles.
(6) CUllomer (urlher llreeslo Ielelse and hold F/J harmleSl (or de:llh or injury 10 Cuslomer, CUl1omer's employees. dllyelS. passengers or
~enu, arising 01.11 of Ihe ownc"hip, maintenance:, use: or operation of any Vehicle leased or furnished hereunder.
8. f!mi..1 OamasL!Wp..l1.!!lililiJy.
The party desisnaled on Schedule A shaJJ pay (or loss or damJoge 10 Jony Vehicle subjecl to Ihe following:
(I) I. Ihc cvcnl Ff} il dosisnat'd:
a. FtJ will pay (or loss or damage 10 each Vehicle in e.leen o( the :amounts specified on Schedules A EXCEPT (I) any "'111(1.11 dJmage to
:e Vehicle arising out or or in connection with any labor dispute; (2) conversion or Jony Vehicle by an agent oremploycc O(Cuslome:- whieh shall not be
3nsidered theft wilhin Ihe Icrms or IhlS provision; or (3) the loss by Ihe(, o( 100ls, tJ.rpaulins. 3ecessories. spare tires Jond other such appunJonees.
:.ISlamer shall pay up 10 Ihe amaunlspcclCied on Schedule A as deductible, far Ion or damage to any Vehicle, including rel3ted e,x,j:le:ues, (rom cJoeh
.:currenec and shall pay (or :all 1011 or damage 10 any Vehicle resulting from any perils specilic311y not assumed by FfJ herein.
b. Upon nOllcss ahan 60 days prior wrilten notice: to Customer. F/1 sh311 ha....e the right (I) 10 lerminale any physiC3i damage cover3ge
rocured and mainlained by F/J and (2) to increase Customer's Physical Damage Responsibilit'lto.1n amount with respect toeath Ve~ie!e :qual to Ihe
~reed Vllue o( such Vehicle computed in accordance with Puagraph II as o( the time o( dar:uge or loss. 3nd each o(the chargesspctllied on Schedule
\. including Ihose slaled in Ihe Mileage Ciuaf:lnty, if Jony, shall be de:cre:ued Joccordingly.
C. tn Ihe cvenl F/J lerminales physical damage: cover3ge. Customer shall be oblig3.lcd to procure :lnd mainu.in physiC.ll damage coverage
.:ce:ptJ.ble 10 F 1 J and each o( the charges shall be adjusled Jocc::ordingly. Customer Jogr:es to (urnish F i J ccrtific:ues necessary to ev,C:e:1c: compli-anc:
~ thtS paragraph.
d. If Customer is obligated 10 prcc'Jre and maintain physic:!l damage co\'erage and (ails to do so. or (ails 10 timely (urnish F IJ with
'Jidence or such eover3ge, Customer .1grees 10 reimburse F/J 311 in loss. cost .:lond expense re:;ulting (rom loss o( ordam3ge:o Ihc Ve:lIcJe: or :Lny vehicle
'cing used as :L substitute therefor.
(2) In the event Customer is so dcsignlled:
a. Cust"mer willl'lay (or :IUrOH or d.:lom"'1e:c to .'1ny Vehic:le or :lny vehicle heln; used:u.1 sub.uitule there(ol. ineluuir.; rel.:.tc:d expenses
Irlsing (rom .:lony cause, but Customer's liability sh.J.lI not exceed the purehase ~tlec of the d3r:lagcd Vehicle eomputed aecolding:o the i'ro\'isions of
'uagr3ph II at Ihe time o( such loss or damage.
b. Customer (urther agrees to furnisl'\ F i J Wilh a policy of insurance: aeeei'table to F / J with F I J JoS.1 named insured or endorsed ,1$ a loss
'Joyce having a deductible amount not 10 exceed the 3mount specified on SChedule A, (ailing in .....hich. Fi J m3y obtain such insur:7.r:ce and .1dd the cost
hereof prorala to the chalges for the Vehicles.
C. Notice o( Accidcnl
Cuslomer .grees 10 notify F/J immediJolc:!Y upon the hOll'lpening of Jony .1celdent or colliSIon involVing the use of3 VehIcle ~y !:'Ie spee~lesl means
)( communicalion available :7.nd to CJ.use Ihe driver to make 3. detailed reporl in person.1t F I ;'s office JS soon JoS pr::r.etieable, 3nd!0 ,roper!y rende:- all
)lher aSSlSlance to F/J and the insuler that is lequested by eilhe:- o( them in investig:uion. dctense of prosec:Jlion of any claims or SUits.
D. Cargo Insurance
Customer agrees 10 release and hold F I J harmless (,0m liability [or loss or dam3ge to any goods or other property In or C.11:'H:~ on any Vehicle
....hether such loss or damage oecurs in F/J's (acility or elsewhere. Customer sh311. 3t Its sole e.~pense, Include F/J JoS a named Insured:n any and all orgo
)t tranSportal ion or Oo:uer insurane: j)olicies co\'ering Cuslomer wuh respect to any loss or dam3ge!0 such goods or propeny. C~slomer '"".ives any
cg.11 righl o( reco\'cry "gainst F/J (or any such loss or damage. Cuslomer sn311 reimburse F i J (or loss of any tooh.IJorpaulins. .lcce:SOl"le~. spare llres or
)ther equipment fUlnished by F/J.
E. Vehicle Thctl or De~lructlon
If Jo Vehicle IS lost or Slolen and remains so for JO d,):iS J(ter F i J hJS ~een nOll(ied. :1':e teJse:ls:o such VehIcle shall then IC~::1lnale .:HOV1(~eC Joll
:!'I.1rges (or such Vehiclc have been p:ud 10 !hal date Jnd j)rovlded Jny amounlS due FI J pUrSUJnllO ?ar3grJph lOB l1a\'e ~e:n pale, FI J shall nOI be
)Ohgaled to pro\'ide a SUbSlllule vehIcle dunng S31d 3D dJoY perlod. 1(,) VeMIc:!e is. :n F: J's opinion. damaged be:.ond rep:llt. F;'J 51':3:! notdy Customer
....llhlO JO days Jrter F I J has been advised o( Inc loss. Upon receIpt of F.. J's :10tIC: lhJoI the Vehicle has be::'I dol m3ged beyond n:?Jlr. ?ro....lde~ 311 C:largcs
ror such Vehu:le ha\'e been paid 10 th3t d3le .1nd ?rov'ced .1ny .1r:'lounlS due Fi J rUISUolnl :0 ?:HJgrJph lOB ne~co( nJo....e becn paId. :r:e !eJose as to sue!'!
Vehicle shall then lerminate.
II. TERMINATION:
A. Either party may terminate the le.1se or Jny Vehicle ;lrior to e;(plr:llion o[ lIS lerm on .1ny 3nnl\'erulY d3le of lIS deh\'c:ry ~a!e. ot::er Ihan :he
.lnlverS.\lV dolle on whiCh Ihe: IC:Jose term e:qlites, by giving 10 Ihe other party 31 leaSI 60 day~ ;HIOr'''''rlllen nOllel: O(IIS lnlenllO do so 1(lc~mlnallon I,S
:f[eeted b'/ F i J. Customer Sh311 have !he right. but :'lotlhe obitgallon. 10 j3urehJose in 3ceordJnee ',/,11th PJlagrolph 110 all VehIcles With res~e:t 10 ...,hIC::
termination notice has been give:1 on the termination dJtC:(SI. If :ermlnatlon IS effecled by C:.momer, C'Jstomer shall al FiJ's opllon i'urcl'lase In
.1e:ordJonee: .....llh P:aragr:aph 110 all Vehll:les .....1Ih respeCt 10 which lermlnatlon nOllee has been 3,ven on Ihe lermlnallon dale:(ll
B, In Ihe e....ent Customer sh:all become 1l'1S0 I ve:1.l. file J volunlJry i'c:llllon In bani:r'Jplcy, mai:e: 3n aHl~nment rOl !he bc~e:i, of C~:dllor;. x
J~Judlcaled a bankrupl by any co un of competc~l )Umd:c:lon. ;lermH 1 receiver 10 be apPOinted (01":15 busineH. :,ermll or sufrer J ~.:alerlJoi dISpaSi\lor:
'- ,
01 ItS uJClI,lhc rUIt or Vch.cl'llh.1I1crmlnJIC, 'I ttlc C!CCllon or F, J Upon wntten nOllCt l"ctcof .rnllO C.mamer. F /J may 11111 opllon dem.."tt tho
.... C..scamcr purchuc within IOday. or Icrmlnalla" 1ny one or ,II o( Ihe VCI'\IC!CS In .1cCordancc ""'Ih ParaarapI\ II 0 WlthOYI "r'Judlce 10 olher umcdlf
F tJ mlY hive undcI Ihi. Allcemenl Ind II IIW
C. Bruch or ocr.ult
(I) In Ihe ,"enl CIISlamcr bruche, or .Iln dC(,ull or .Iny O(lhc prO'VIIIO"I O(lhll "',fcemenl. F I J maYlmmcdl4ltly. wllhOul nOllct 01 dcm~nl
ute posseSSion or the Vehicles. 10lclher wllh.all CC;I,lIpmCnllnd .lCCI"1S0tu:S Iherelo. ."d FtJ shill be c"llllcd to cnler upon In)' ptC:mllU ""ere 'I.
Vchlcln may be Ind nmowc nme. tCUln or rc(use 10 redeliver I !'Ie Vehicles 10 Cuuomer unlll such ,rClcn 01 dc(,ull I' (101 ted, WtlhOul any ohuCl1 .11(1 lor
bel"' deemed an aC1 Orlcrmlna1l0n Ind Wllhout ~rCJlIdICC to lhe Olher remedies F I J m.1y h.1."e lnd CUllomcr shill conllnue 10 be liable (or .111 eJurs'
Icerulnl dUrlnllhe period Ihe Vthlcles arc rClalned "'1' FiJ
(2) In Ihe evenl F / J l.1lccs POUCUlon oC Of tel'lns .ny VehiCle. oInd Ihete shlll..u the lime o( such 11'1"1 or relenllon. be In, upon Of 'lllcned:
'uc~ Veruclc Iny Olher properlY. loads or Ihlnes o( Y.11uc :lelonglne 10 Cuslomer Of In the cUSlody or c:)nltol o( C;.&tlomer. F, J IS lultlotl1:d 10 l~"
possCSSlon or such Ilems Ind eufter hold Ihe s,me (Of C.ntomer Of pine Ihe sJome In pUbliC Slorllt (or C..S1omef II Cuslomer', upenlC.
C.') Ir C"'tlomer', brueh or dc(,UII contInues ror 1 d.1ys .1(ler wr,lIen nOliee hu been mIlled \0 C\olSlOmer. F'J m,y lermln'le ::'\e :eue,
Vehicles, Upon lefmlnlll!,)n, F,J m,y demlnd It'lll C\olSlomer "urchlle wllhln 10 days or letmln'llO" .1"y or ,II o( 'he Vet,.ett\ I" .Icc:ord'I'lCc wll
PU1eflph 110 wUhOUI prejudice to Olher remedies F;J mly IUve under thiS ^&feemen'4nd... llw
(.&) C","omer 'h..1lI p'y F,'J ,II F,J's COIlS ..na :.lpense. Ineludine telsonlble ,"Iorney's rees. Incurred I" collecllne ..mo","lS .:2ue fror
CUSlomer or I" en(orclnll"y rl&h~S o( 1'=, J hereunder
D. In Ihe cvenl C"'Slomer (pursuant 10 Plngrapn IIAI shJl1 be requlrcd 10 purchasc Jny o(lhe Venlc!cs, Or should F; J fpunuJnt 10 ?ulsrJp
118 or IIC) demand or Customer thlt II purchue .lny or lhe Vehicles, CUSlomer shJoII purchlsc e.teh Vehicle (Of cuh ..11 or .....Ilhln Ihe lime .a(Qreuld re
lIS OtlClnal Value JI sho....'n on Schedule A,less the lotal dei.HeClollion which hu accrued (or such Vehlcle:n Iccordance \IIlth Schedule A, Ad~lIlonall-.
Customef Will. II the lime or purchase. PlY F J J (or Ihe amounl of any une.\pircd licenscs,lp~ltcJble tuCS, Including personal property lues lnd (eder:
highway use tucs. .and Olher prepaid e.\pensn preViously ;laId by FtJ (orthc Vehicles pror:ued to tr..e dale ,,(ule and 'WIll be respoMlble !Of lnyules,
use tU armng (rom Ihc ;lurchase. C:.U1omer sholll hlve:'\o obllgJfion or righllo purch:uc any Ve~"c!e 3S:0 which Ihe lerm on Schedule "~,H :~;me:
12. ASSICNMENT OF LEASE
This Agreemcnt shall be binding on the plrllCS i'lcrelo. In:,r suC::SSOts. legal rejHcse:u:lllves Ind 1Ss,gn,. C..,stomer shall promptly nelley F. J .
wrillnl prior to all subSUnllll chlnles In ownership or any mJletl31 disposillon o(lhe assets o( CUSlomer', Ousinen. CUSlomer docs not ha."e ::'IC tlgl'H',
sublcue 'n)' or the Ve!'ucles. nor 10 uSlgn this Alreeme:'ll or any Inlerest therein w,thoul the pnor wtlllC:'\ :onse:'l( o( F 11.
IJ. FORCE MAJEURE
FI J shllllnC'ur no liability 10 Customcr (or (allur: 10 sucpiy any Vehicle, provide a substltute ve:'uele, re;lJIr Iny disabled Vetucle. or ;:Hov'ce :uel ((
Venitles. ir prevcnled by ~ nallon,l emergency, .....,US. fiatS. ures. laoor dispules, Fedenl. Sl~le, Ot :oc.ai II....s. rules. tegulatlons, shona!es !local
n"cional). or fuel allocation ;Jrognms. Or .lny olner :JouSC ::)eyond F,. J's control whclher existing :'to"" or nC::3iter, :"lol'NlIhstlndlng F !J's ;~a::)liity :
perform under such conditons. C",stomer's obliglllO"S her:'Jnder shall continue,
J~. NOTICES
All nOlices provided (or herein ShIll be in wtltlng Jnc ~alled to Fi1 3nd Custorne~ 11 theIr respe:tlve lccrcSScs set (onh JOove or Jl ::.:::~ otn:
.lddrcsses deSigned in wtlllng by either ;Jarty.
This Agreement shall not be binding upon F,' J unt:! e~e:'Jted al itS L.ltrobe Hcadqu.1rters lJy a ;lerso" duly authOtlled and shal1cOnStllul: :~: ::\11:
asreemenland underSlanding betwec:'l the plnies eoncernlng Ihe Vehicles, notwlIhsunding .1ny ,re'/ious \/trillngs or oral underlllr.ings. and ~u lerr:-
shall nOI hcre.arler be aile red by Jony or:11 agree.-:'lcrll or Inror:'n:11 ......tIImg. nor by railure \0 Insist upon pe:rormlnc::. or r"llure 10 exerc:ne .3~:-' fights ~
;J"vilege, bUlllteratlons. additions. or changes in thIS Agr::::ncnl shJoll be ;sc:ompilshed only by ......ntle:'l ::'lcorse:ile:'lt hereon. or arnendrne::1 :::r::o. ':
addition..l Schedulcs A mlde a p.arl hereof duly exe::'.Jted :,y bOlh ;:sanics.
IS. ARTICLE HEADINCS In bold face t}'pe do :'1ot constltule Jny par: her:oi and shall nOI be :on~ll::::d In IMe lnlcrpreullon he::::'
IN WITNESS WHEREOF. each or the ;:sanLc' hereto h:l.S ::a1.;sed these ;lr:se:'1IS lo:>e duly :xe:::.acd loe day Jond yCJ.r first abo..e '...~::.:e~
F;J LEASING COMP....NY
t1CS \IAREHOUSI~IG, DIVISION OF MCQUADE
,
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By,
W, c,.v.--.. b uJ C..o---:
(C.:s:o:':'lC'~
~hmc,'Tillc Thomas S.
D." .., I /9/9S"t.--..
'.Vunes01 QQ.,,/
U '--.:::.
P=esida:1.:
Name/Tille
Harold G. ~il1iam5on,
Jr., V.?
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NOlwlll'l'I,ndlng ,n)'lftlnQ ." In, Ag'..n
In, cantta,.;, Ill, mu'!ually '0'...0;
II J, 'GrNd 'h.t Ih. Ongln.. VIlU., W"kl'r' Otpr"I'lIon and Find Cn"Ou ~r .... Ir. blled upon m.nu'.ctu,."s qUOled PrlC, lor
.,h'e'" II 01 U\, d.l. 0' 'Ie(ullon 0)" CUllom" 01 InlS ScneduJ. A.ln tn. '~.nl manu,.Clu,,", quoted pnee 'OrsuCl'l v"uel". lncr..,.,
... prior 10 tn. O.r. 0' o.Uv.ry 01 'h. .,.hlcJ... CUllom.r lore..lh.t 'or ..en 150 Inc'....ln price (or 'fiction Ih.r.oO. Iht rollowing snail DI
, IncreUed .ccordlngly'
Q.!lglnll Valu.
~e.!!,lY~Qrl9Clellon
Fiuld Ch"O' Ft.r W481l
uooo
us
S.JO
Th. 'mounts In COlumns. 9. 10 IInd 1:1 01 th/3 SctlOdUlo A '*111 b.t ed/ust.d on Oar. 01 O...v.ry
1,
L'IDI'lIy In.urlnce CUSTOMER
R.sponslblllly:
(F/J/Cullom,,'
Llmlls:
BOdily InlUty S
BOdily Inlury S
Properly Cam.o. $
OR COm Dined Single LII1'Il. S 1 MTI !.ION
per person
per .celdenl
Plr IeCld.nt
pllr I,eldent
2. PhYSical Oamege RosPonSllHhty by' F/J C S
-0-
deducllble
Customlr :c
J
FUll provld'd by
CUSTOMER
fF/J/Customlfl
In the evenf F/J's cost lor lUll prO';"ded lorvenlcleslisted on Ihis Scnedule :snail be grealeror less Ihan lhal amounlselloflhlft COlumn 11
Cuslomer s"all pay 10 F/J or rocelve. credltlrom F/J accordin9ly. F/J's fuel cos!. snail be developed by F/J in accordance with slandarc;;
COs! .CCQunllng practices. rlPonea and blll'd 10 Cusfomer.
'* DomiCile ollne Venlcles !!SlOa on It'lls Sc:utc:ule (C,ly)
HOMER CITY, PElINSYLVANIA
S. SeNlee end mSlnlenance locallon 01 VehIcles listed on Ihls SChedulo
LATROBE, PENNSYLVANIA
6. VehlClefs) Will only be operated In Ihe 101l0wlng Slates.
FuelPermH. PA. OH, IN. iiI. :1IJ. '.V. VA. NY N,r CT. NC. SC, GA>-FL, DE. IL. :-!A. RI, KY.
7 Mlleeyo yuorantIJe. Custom,,, gu.,snloes Inal lJlSen 01 lno vonlclas dosctlbud on I/'IIS SC/'IoOule A will 00 OPoraloo a mInImum 01
N/ A ,miles Within aac~ Nt A month pOtlce:: during which illS under toase ("Guaranlee PeriOd")
Tne paymenl 01 the Mileage Rile ;:ler Mile snail De made lIS prOVIded In Paragra;::n 901 the Agreement for mItes actually operated
A. selllemenl ollne mileage guaranlee Will be made 31 Ihe end of eaCh guarantee periOd as tollows: II mIles aClually operlled during Ihe
perlod are less than rhe mIl" guaranleed. Ihen Customer will be billed by F/J and Cuslomer shall promptly pay 10 F/J an amounl eQual (0
Ihb dIfference belwtlen Ihe number 01 miles guaranleed and Ihe number 01 miles operated during Ihe petlod, mulllpiled by the Oellcienc'I
Rail! per Mila specIlied balow. It the number 01 mIles operated dUfl"g Ihe pettOd exceeds the number 01 miles guaranteed,lMn Customer
will rece've credit lor an amOunl eQual 10: (1) Ihe dilfeience belween Ihe miles actually operated and Ihe miles guaranteed. mulllplred by (2)
tne dlfferonce belween Ihe LAIluge Rale per Mile specified on Side One of (hiS Scnedule and Ihe Excess Rale Der Mile soeclhed below
The Deliclency Rate per Mile snail ~e $ ~I A and Ihe Excess Rate Der Mile snail bo S ---.!!i!:.___
Miles operaled by vehicles to whlc~ Ihe Slme Mileage Flale par Mila, Oaliclonc'! Mileoge Rele per Mlle. Excess MII840e Rate P8r Mlle.
nurnoer 0' miles guaranteed, and guarantee DeflOd aODty. may Oe averaged. IIlhe lease 01 any vehICle ., lermlnaled ~urlftg any guarantee
peflod. Ihe guarantee snail Oe ::](oraled lor I/'Ia[ '/ahlct" on Ihe baSI' ollne actual ::>onlon at suc." petlOd II was under tease.
ThIS SC:ledule A (mcl'-"li'lg SIde one ~JreOI) IS nere/)~ mace a paf! of thai cenaln irucll Loass And S"rvICd A9reemenl belween the partIes
daled as ollhe l';ltn day 01 :.!.aV . 19 ~
"
F/J LEASING CCX;' ,', ')
/';>;,'~--- . / ;/,.. "
8y y/ t"~,<aV .);/' ./f'tf;l:/
" /
N IT'" Thomas S,.]'ames, P:-e3:.aenc
ome Ie,
0.,. ._5 A'\4t-r=1.----..---
WltnlJSS ~~ __
--' ---:.
--
~cs ',o/A?E::OUSr~IG. D rVrSWN Of ;lCQUADE
8y
0r.-<- t ~ (JL
fCUS70MER\
Name/Title Ha ra Id G. Wi,~~iamscr: 1
Dat. s bJ::.s:-___
Jr., V ,P.
'Nnne~:;
(-
~: ; , .. , : ',,, ",'
'.
. Commonwealth ofPenns: nia:
County of West Moreland:
S5:
Affidavit
Douglas Jessen, being duly swom according 10 law, deposes and states that he is the Vice
President for Fox & James, Inc" the within Defendant, and as such he is authorized to make this
Affidavit on its behalf and that:
1. Fox & James, Inc, is a Pennsylvania Corporation doing business at Route 30 East,
Latrobe, PeMsylvania, and is engaged in the business of leasing vehicles pursuant to long-term
wrillen leases.
2. That MCS Warehousing, a division of W.C. McQuade & Harold G. Williamson, Jr.
entered into a Lease Agreement as lessee with Fox & James, Inc. as lessor, dated 19 May 1995. Said
Agreement had a lease term of 5 years. A copy of said Lease Agreement is attached hereto and
incorporated as Exhibit. A..
3. That pursuant to said Lease Agreement MCS Warehousing, a division ofW.C. McQuade
& Harold G. WIlliamson, Jr. were required to provide primary liability insurance coverage, naming
Fox & James, Inc. as additional insured-lessor.
4. That pursuant to said Lease Agreement, MCS Warehousing, a division ofW.C. McQuade
& Harold G. Williamson, Jr. agreed to indemnity Fox & James, Inc. for all losses, damages, claims,
injuries and expenses which might result from the Le:lse Agreement or use or operation of the vehicle.
5. The driver of the vehicle, which is the subject of the pending litigation, was not the
employee, servant or agent of Fox & James, Inc, and was not acting on the instruction, either
expressed or implied of Fox & James, Inc.
6. That pursuant to said Lease Agreement, MCS Warehousing, a division ofW,C. McQuade
& Harold G. Williamson, Jr. were always and remained the beneficial owners for the use and control
of the subject motor vehicle and Fox & James, Inc. was merely the titled owner and has never
possessed dominion, control or authority over the subject motor vehicle.
7. Fox & James, Inc. has no knowledge as to the circumstances surrounding the accident.
FURTHER AFFIANT SA YETH NAUGHT
~~':1='Q
Douglas Jessen ~
Vice President
SWOR..'Ilto and SUBSCRIBED before me
this .') 9 4.. day of (JAJ'Y't..-K- . 1999
r;I~ ~7 fl;
Norarial Sem I
liMa L. 8arC). Notary PI..-
Unity Two.. WaSlmorafand Ccuwy
My C.:Jmmlsslon EXCites Aug. 21. 1999
. "'........... :::l.......__.~..,......\~.-I~
exhibit F
Condenscll!
PogeS '
1 huh: hook":t (lut of il Ynu hJ\'C: J n~t. If you ",0 I
.:: t.ksin:. to n:Jd m:,-=r lhalto make ~ure she hasn't m.wc any .::
l Iypographical erro.... or you "an lrust Ihat ,he', ~oin~ 10 l
· Iyp.: ovc:ty1hin~ down "om:clly and woive Ih.1 nghllo 4
! n:vlew Iho Ir.lI"cnpl. Whot you would like 10 do'! !
n A Trust her, 6
Q Thot',~ootJ, /7
S Could you loll me .. Just I wonl 10 "olle"1 H
~ "iomc hackground mfonnallon .. can you tell me how old you I t)
It) are'.' 10
i I A 43. II
I: Q Wll<'O wen: you horn'! II'
13 A 7'17-1956, I;
14 Q When: wen: you horn. Gary',' ; 14
15 A Woodstock. VilBinia. 'J5
16 Q An: you married'! I h
I~ A Yes. 17
IS Q /low lon~ have you hcxn married'! 18
19 A 19y.:u-s, 119
:0 Q Do you have.: any childn:n'.J .20
:1 A Four. 21
.... Q Four kids?
:3 .\ Urn-hum. yc:s.
:4 Q Arc they grown up by now, or arc rhc.:y still
::'5 littl~'.'
Gary I.ec Ncff
-,
.'\ 21. 19. 15 .nd eight.
Q So you still have a lot of work ahead of you,
A Yes.
Q Wher~ do you currently reside'!
.-\ C]aysburg, Pennsylvania.
Q Could you give me the addrcss there. please.
A R. R. 2. Box II I Sol. Clays burg. PA 166:!.
S Q Have you ever been convicted of a crime'!
9 .-\ No.
III Q How about in lenns of education. did you
II graduate from high school'!
12 A No.
II Q lip to what grade did you go'!
14 ,\ I went to ]2th grade. but I didn't graduatc.
I; Q Have you ever had any furthcr education aftcr
16 the 12th grade'!
17 A Driving truck. going to school to drive truck.
IS Q In tenos of your employmcnt since leoving the
19 12th grade. have you been a truck driver over all these
:0 years'.'
::'1 :\ ~o.
" Q Con you just brietly summarize who! you hO\'e
. bccn involved in'!
,4 A Monuol lobar. you know. mechanic. then truck
::'5 driving.
Susan M. Simon, Reporter-Notary Public
:
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4
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6
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b
Q An) t}unV ':1": I
" No, nol t'Cally llkl.: l 'kIY. JU~I whal4:\'cr.
You know, ,I' you VO 10. Joh oIIld lhey say you """~ 10 Jo
thIS. you n,..d 10 dOlh.l. lh.,', why I ',lid like.
lohon:r. No heol,' ''IlUlpl11\.'Ot opeta'or. nothIng hk. Ih.1
Q "ow .houl In lorms of J <lnl.r', license:. how
long ha\'e you had J dn\'Cr'~ Iil.:cns.:".'
" 27 yean
Q Do yuu ~Ul'rCI\(I>, h....,C'.. PI.Ot1n\yJ\'ama drl\'cr'"
lu:\,"Osc'.'
r\ Yes
Q Do you have' J CD!. 11l':I.'11sc'.'
A Yes
Q W}"'O diu you o'qulTe Iho!'.'
A \Hlcncwr ~r.C'y tirst l.;omc out.
Q Like '90 I believe' illS, around there'.'
A 1 ~on't know, [don't know if it tells you on
the driver's licenSe: or nOlo TIus hen: says ililtc issUc:d
wa...; 11 somctluny. but. I mean. I'\'c had tl ever since COt..
come out. TIus IS ',\ he:o I had to have it redone. so .- I' \"C
always had CDL"s. I've btXn driving truck for 11 years
Q \\'here do you l!ri\'C' truck'! Throughout the C:1.,,(
coast. do you go out west'.'
A More or less like the nonhca"t than the \'-'cst.
Q TIle piaint::T In thIS malh:r. his nam~ IS
'"
, --
Fr.mk Fructano,
=: ,.\ Okay.
3 Q Did you knO\\.' of him pnor 10 :\ugu..;t Slh of
4 1997"
Page 8
A
No,
6
7 explain,
S BY 'lR. PRICE
J 9 Q TIle man who brought this suit is the
1 III plaintiff., . .
II A RighI. ngm.
11:: Q Did you kno\l/ him'!
113 A No, 1 di~n't know htm, Slill ~on'! know hll11,
14 Q Do you n.'t'r.t:mh~r August Sth of 1997?
15 A Yeah,
1 h Q Do you rcmemht:r whar you were doing that day','
1 i A I took J. load or hay do\''on to Avondale.
IS Pennsylvania, got unioaded. come hal.:k up. Travc.:h:d 1 .;ou:h
19 to ~l north to 30 west. to :!X3 W~Sl. to turnpike.: west. I
I;::n gct on rhe turnpike.: :it c:xit 19, [ get off the turnpike at
:: 1 exit II, Then I take IOh:rSI,J[l.: 99 north to thl.: Ostt:rhurg
,., exit, thc.:n lake Sh9 ~o wht:x f park the truck at in Imh:r
::3 Q So in h:rrns of this accidt:nt. you'rt: traveling
1::4 We,:SI nn 47(,','
i:5 :\ On i(,
MR.OO\\o'L:XG, By plaintiff. you might want to
Page 5 - Pag',: :-.:
Ga
Lee Neff
Condenselt!
February I), 2000
Pa~c II
uf ~h:(}U.lIlJc\ \\;1]". hut I jU_'11 dl~:n h~\c lunc III dUll I
~ "'-lId okay
I walked hack Iller 10 ...,k ~lcQu;ude -. well. I
~ walked hack Iller 10 lalk 10 ~lcQlLIlde, And M'Qualdc a,ked
me. he 'kIid. did you ",-oc [hat ..:ar "topped In front uf me
h I pollldy told lum. no. I dId nol lie "'y'. well. I n""J
-: J WII"cs~ f .;Ju.!. well. "m sorry. I did not ~~ Ihe car
i It 'itflf11O front of you.
,
I IJ 'f .1 cat did. Il.:annot '\.'J.;. I .,;annnt.;ay I
! III ..:an "iaY thai the Pennsylvama turnpike cmploYL'Cs \\'01."
: I J working nn the guardnuls on the ;c(t.hanu .. in Ihe
! J~ h:r't'hamJ lane. lh:y h..uj ..:oncs up to prOLcct thL"tll1 ~ucs..
i IJ you'd ,ay. and Ihey had a SIb'" on the hack of Ihe truck
II ~ with an arrow pointing 10 the: ngilt which means of ":OUI'S\:
115 get o\'er m rhe n8}JI'h~mJ lane: nf:fon: you run (Wer
i 16 sumchouy,
117 TIley did not have no SIgnS like. say. a half
I J8 mile or 1500 fl"Ct coming from tb: cast (0 the West stating
: I tJ that the h:ft-hand lane is going :0 l..-nd. TIa:y did nm have
:'::0 nmhing: like that up, You don': :".,aw un:i1 you get right
1:1 there where thc guardrail is ht::ng ~paircd.
I ~~ By th.1t time. statr.: troope pullcd up. JJ1d if
i'::3 I do n:rnt.'Tl1her correctly. he talkr.:d :0 the guy that was
i'::4 working on the hau&'. I guess. ~L;;c I $aY. he was the one
r 15 that .:allcd the stale trooper rirst ::1 :he hegmning,
J
(} 76, n~JY 76 \\uulJ he Ihe 1)1,.-nn"i~I\Jf1IJ
; Tumplkc'.'
J ,\ Exaetli'
., Q TIlat run~ ea."it'west. okay,
~ I\nd the JCcld\.,.u at issue took plJce JI Jtound
(') noon lime accordins 10 Ihe polk.: n:port
" If I n.'I1l<'I1lhcr ellrreelly. ye,
rJ CJn you 1.:11 me whal you '-1\\' in lcnn'i IIf lhe
.) aceident'.'
" I was getting un exit II) un the tumruke, And
II I S4.ocn Ihe McQuaide truck com!.: by exit II) I ~Id In
I; myself. If I eJll ealeh up MeQlUlide I'm glllng to ,a"h up
1 J McQuaide and run Jcross turnpike 10 exit II hccausc I knew
14 that','i when: he was going In get ofr.
Q Where!
" Exit II whIch i. Bedford '"terchan~e, Wh<'Il I
17 was going across tumpikl:. he Wa.'i in front of me and I 'il\."rt
I S him go acrn.. the guardrails,
I ~ Q Let me stop you there. \\il1l:tl you say in frnnt
'::0 of you u
'::1 "Yes.
Q ... arc you in the passing lane now or in the
':3 driver's lanc'?
:\ I'm in th~ travel lane. I'm in the right-hand
':5 lane where I'm :;upposcd to be. So was he.
PJgc t).
s
111
15
In
"
:~
I $c.:en him go across the guardrail into [he
~ eastbound side of the traffic. I did nm ~ him hit the
J car. But I did see him go up the hJllk. and the lruek
4 started rocking back and fOMh. and I said. oh. my
5 goodness. h~'S gOing to upsct. The truck did not upsct.
6 II slayed up on all 18 wh,'Cls on lhe cmbanlon,'Il1.
7 I got out of the tractor-traih.-r truck that [
S was driving: b~cause I have a phont: in it. And r Sl.~n a guy
I} slanding alongside th~ turnpike. H~ said he was working on
In lhe north side of the turnpike at the house righl there
t I like alongside the turnpike, And I told him. I said. did
I! anyhody call the cops. TIley said yeah, he said I ju", did.
I J I said. well. I have a phone in the truck in "I)" somehody
14 didn't ,all. He ..id Ihey already called the Slate
15 polict:. r said okay.
to I myself walked across the turnpike to the
17 eastbound stdt:. and I asked the McQuaide driver first he
l:i was all right. He said yes. he was fine. AmI my remarks
19 to him \Va..;:;, nay, you gonna get some high dollar tickets
;::0 now. He says, I uon 't care. He says. I said to myself if
;::] I ever had a wreck. he ,says, I'm uone truck driving.
r walked ovcr 10 the guy in th~ ear. I said
:3 arc you okay. He says yes. r said Jre you sure. lie ,says
:4 yes. I said do you nt.-ell a rescue squJ.d. He says, no, I'm
:5 scared 10 deo,th. hut I'm tine. lie SoJld I tried to get out
Susan M. Simon, Reporter-Notary Publie
Page 10:
I 6
7
I 8
i 9
lto
lit
I
i I:
! 13
14
15
10
11-
]~
,
119
1'211
!I
1'-:::::
i2J
j2~
i~5
The.:n the stJ.tt: rroope.:r ',\'aiked up to me O1nd
.:: asked me.: what had happe.:ncd. :f I ~~ what happened. :\nd.
J like I said. I explained to /tun I <iid <<.'t: ~leQuaide go
4 across the guardr.1il. but I did not ;0: him hit the cJr.
5 and I did Sl.'e him go up the.: han~.
The state.: trooper hirnsdf ~lijked me. he says,
what do you lhink happened. I said tho only thlllg I could
say. if anything. is he'd have.: to bc going too fa.lir.
111m's alii said to the state rroopcr. State trooper took
my name. my driver's license all that stuff. my phonc
number. I told the state troapc:- if hI:: had any other
qu..::stions that I could hdp hIm wHh. that was my phone
number.
And that was the.: t.'nU of :ny discussion with thc
state trooper. rhe guy in the car. .:md th~ truck d.ri\'er.
111at was. you kno\','. the.: end of ~h..,,[ conve.:rsmion. anout the
~nd of the.: do,y, whatc\'er you \\'ant to l.:allu, hecau.'i4: I
went on home, And that \',,'a...; :he ;,J,"it I heard from the Stale
trooper or whatever,
Q Okay. let me .lust rc..';tnu J little hil ~o I'm
dear on some of the: facts that ynu' re relaying here.
Initially, you indic~uec.1 ,hat you got on fo
thc Pennsylvania Turnpike.: J[ ex,! j l)','
:\ At exit It),
() When ynu gO[ on. did :;nu ge:t on ImmL'diJ.ldy
Page 11
Page 9. Page 12
G
Lee Neff
Condense!!!"
February I), 20tlO
P~ge IJ I ,P~gc 15
hchmLJ the McQuau.h: \'..:hll':II.:',' I I Ld\c I ~Hj. when he \"'as lo:omlOt: past 19. h~ \,"'il." In Ih\.'
.. ,\ No. 2 ngllt'hand lane. If he was 10 pa.'iS another vehicle. I
J Q Wh~t h~pJl'.'11ed'! J e~n'l reealllhal. BUI atlhe l'llk: of tile JCeid<'11I. he Wa.s
~ ^ Nnw wh<'11 1 say immewatcly. J gOI nn Ihe ~ 1M Ihe nghl'hand lane. and 1/11.'11 ,lid. whleh made him IMln
l lurnpike a., fa.<l as 1 could gel on. If ynu wnuld say l III<: left. hand lane across Ihe guardrail of cnurse 'nlo Ihe
· Ihal" unmedialely, Ih<'11. yes. Ihat would lie immediately h e~sthound Side. lie trawled all four lanes. I gu.:s< you'd
i Q You tell me, It'i your t.c~tim(lny. 7QY
~ "\Vhat I'm saying is. f didn't ha'o'c 10 'ilop. X Q Befure he goes inln lIu.: guanmuJ and you're
9 VI)U know, I cot my turnpike tickel, JIH.!I put it in my I} li"\'clin~ hchimJ him on Ilu~ eight miles. do you knov... 11m",'
If) truck. and I proC4.'Cdcu 10 get on the turnpike as you 110 fast you !,'uys Were traveling'.
II nonnally would do. You have to yield. McQuaide driver \\''1.,' II A I would say that I \""J." travcling. to be honcst
I: coming in Ihe left-hand lane.. 1 mean. Ihe righl'hand J: wilh you. helw<'t.'11 65 and 70 mile an hour. SOl a nil
IJ lane, As he Went pa.s<. and Ihen Ihe cars like in the IJ fa.,ler,
14 left. hand lane to go around McQuaide. so that lei me come I~ Q WIllie you're tra\'eling 65 10 70. Ite ~lcQualde
I S on out JOIn Ihe right.hand lane. ""d Ih<'11 I followed. J 5 lruck" in front nf you'!
J6 Q Whl.'J1 you got on 10 Ihc rwTIpike. were cars J6,.\ Hc's in front of me.
17 actually passing Ihe McQuoide lruck'! 17 Q How far in fronl of you'! Are you right behind
18 A Yes. IS him'.'
J9 Q Now. you then gel on the turnp!kc and you're 19 A ='10, I'm trymg to figure u (don't know hO\v
"0 behind the McQuaide vehicle'! ~() 10 say the distance of wh;1t it would br:. (f I .:ouid pOln[
~J A Yes. j:!1 ut something, it's one thing,
.... Q How long u let me ask you this. How long do :!1 Q Go aht.:ad.
~3 you follow the McQuaide truck in the right-hand lane'! ! 13 A Okay. maybe from here .. at lea.st (rom here to
I
::~ A Well. sec. exit 19 is Z~7, exit 18 is I do 114 tht! guardraIl across the road.
,
::5 believc :!44. 244. 243. So now -. but when l got on it and j 15 Q In tt!rms 01. say, yards or football i1r:iili. do
Page 14:
I I was behind him. I can't acrw.llv saY how manY miles I i
. - - I
:: would have bt..'t:n behind him. because as him being already on i 1
3 the turnpike and me just slMting out on the turnpike. we I 3
oJ ain't running the same spt:t:d. I can't catch up with him ' oJ
.5 that fast, So I donlt know how tf) answer that question, i 5
i
Q Was it a matter of time before this accid~nt I 6
7 took place that you were behiod him'.' I
S A Well. the accident happened between exit I i I S
,
I) and exit 18. so we have. what. two exits. tbm:: e::xits in I 9
10 between. so it's like.. exit 17 is 236 -- yeah. 236. so 110
II you got 11 miles in between the two exits from exit 19 to III
I':: wh~rc the:: accident occurred. So it would be like 7 mil~s I 11
113
14
i 15
lib
117
6
13 guess,
14
Q So it's your math thai from exit 1910 the
15 accidl."T1t site is 7 miles?
I b A I would say roughly Ihat area. yes,
,- Q Would Ihis help you. Ihe police report says
IS mile marker 2391'!
19 A Okay. Ihal would be eight miles.
Q During that dght-mih: span. you're hehind [he
.:: I ~IcQuaid~ vchicle'!
A Yes. r'm in the right-hand lan~. and at the
... time of lh~ accident.
.::.; Q He had moved over. right'.'
... ..\ He may havc mo\'~d over to [he left-hand lanl.:.
Susan M. Simon, Reporter-Notary Public
'::0
P~ge 16
you know how far'.'
A I would say 50. 75 yards. Not at :5 vards :h~
S(Jtc trooper got wrole dO\\ol1. hecause If [ \I,'a..; dOIng 65
mile an hour and I was only 25 yards behind. I'm not going
to gct stopped when he hits his brakes. Tne:e' s no way,
Q So you're tra\'cling up the road. you';e in thc
right-hand lanc',)
A Yes.
Q Did you evcr St.'t: the McQuaide vehicle put on
its hlinker to go into the passing lane'.'
A No.
Q As you're tra\'eling that eight miles bchincJ.
the McQuaide truck. are there cars passmg you. if you
recall'?
A I can't say it was, h~causc nohouy d~
SCopped.:in l c:m't ,'iet here and say ther.: was C.lrS pa'iSlng
m~. No. r cannot say that.
! ] S Q Okay, Now then. prior to tht: :VkQuauje lruL::k
! 19 wltt.:n you S(.'e it go into tht.: guardrail h ,'itrikt: :nat.
~ll In this eight miles. lerls stay thert: ;l
~I ~ccond. wht.:n you're hc:hind the McQuaide rn.ll:x.
~1 :\ Okay.
'::3 Q On you ~t: thl.: ~kQuaidc: lrul.:k ihJking l1r
,~4 driving c:rrutiCJlly in ;.my fashinn'.'
i 25 :\ No, I did nm .'ice him lanc: c:hangc:, bad; am1
Page 13 ~ Page Ih
Gary Lee Neff
Condensclt! .
Febru
Pa~e 17 I Pa~e I')
fonh. I ,hJn'l "il.'\: ham "i\\'C'r\Inij: JlIllVCr the roal!. or j -wy" il.:ft.hJnd Ian.: -.:nd" I mile. h:ft'h.md lan~ c"'-l" ~5olt
~ noUung like Ihallhen:, I ~ /"'\:1. lefe.hand lanes c'l1ds I~OO /""1. left'hand lane end,
Q Okay 111<.'11 hcfon: Ihe ~kQu;lIde lruck goc, SOO /""" ", far..., lean n.'memhcr Ihen:', nO! nlllhlng up
J .nlo Ihe guardrail. do you el'Cr "''' it PUI on .Is hlinkcr J like Ihal, You ~on'l knnw you gollo gel In Ihe ngJll.han~
~ to ~o inlo the pa.~5in~ lane'! ~ lane unltl more or less ( would !liaY it's too late,
" No, I didn't. j It Q Nnw, Jfh:r you 'iCe the McQuau.lc truck !;()
Q In the: (Iyht miles that you'n: traveling I ~ through lhe guardr:lJI and O\'cr Inlo what would he lhe:
S hdund Ihe McQuaide lruek. dlle' Ihe McQuaidc ,ruck cvcr go I S c",lhound"
t) IOto thr= pa.'\slng lanc'! /11 ,\ Easthound ';Ide.
III A As rat a.'i I can rcmcmhc:r. nn. he doesn't. 10 <J" casthounu lane. you pull your lruck oVer.
II Q Now, you had h:sulicd regarding Ihese II' IS that what you do"
I: Pc:nnsylvania tumptkc,--mployl.'Cs. I: t\ exactly.
,\ Y.:s. 113 Q AmI tht."T1 you wc:nl oVc:r and you spnklr.: with lh~
Q What were they doing again'.' )1.& driver of the whi(~ C:lt','
A They was n:pairing the guardrail. what. a vcr)' 15 ,\ Aftcr I parked my lruck. I parked my
16 shon diSlllnce from whcn: Ihe wreck oceurred. My honest II" lrac'or'lr:ulcr truck on Ihe nght 'tde of the highway.
17 opinion, I bdievc -- but I can't cwn say this to be 17 which I wa."i going wc:st so I pulled off on the right side o(
I S truthful -- if tht:rC was a vchicle in the Icft-hand lane: I S the road. I walked in front of my truck to a b'UY standing
19 like a car, e:\'r:n a tractor-trailer truck or whatever, if 19 in front of my trul.:k becauS(: he wus working on a hous..: nn
20 there wa."i a vchicle in the It:ft-hand lane; <lOd the;y happene:d 2() Ihe north Side or" rhe rumpike. He said he heard the nOl~
11 to see that Ihe cones an: sening up in the left-hand lane. 11 and slulf. And I ,.:ud did anyho~y call1he cops. I di~n't
.,., then somebody.s going to movc over to the right-hand lane 22 say state: trooper or wha~vcr. I said did anybody ealllhe
~J quick. I can't say I SCt.~ a vehicle: in the left-hand June. 2.1 cops.
Q Now these pe:ople. the turnpike personnel. do i 2-l Q
25 they actually have a truck moving that they're putting do\\n 125 :\
PJl!eIX
cones? What's going on there'! - I
1 A They have cones set up 10. like I say. to 1
3 block off the left-hand lane. They have a truck sening 3
J there that they have a seat Ihat they set on that drives 4
5 the post into the ground. and Ihen Ihey put the guardrails I 5
6 up itself to put the bolt stuff in. "
7 But at that time. like I said. they had a I 7
S turnpike truck with an arrow pointing 10 Ihe right setting: S
9 in the leti-hand lane inside cones. 9
III Q Did you see that'! III
11 A Yes. I did. 11
11 Q So you have cones. and then Ihe truck insi~e 1=
13 the cones'? 13
I. A Exactly. IJ
15 Q And Ihe arrow is pointing for yon. for traffic 15
16 to merge righ!'? 1"
17 A Exactly. 17
IS Q Before those cones and before that truck with IS
19 the arrow -- 19
211 A Yes. 2n
~ I Q -- were there uoy other markings on the : I
.,.. roadway'! '\"l
13 "No. That's what I conldn't understand. I =3
:. said nsually doesn't make no difference. you're on the 1.
:5 turnpike or any interstate or whatever. you have :J sign 25
Susan M. Simon, Reportcr-Notary Public
3
o
13
IJ
15
2.&
Do you know \I.,'ho Iha( guy was. by any ~h."nl.:':"
:>lo. I don',.
Page :!O
Q He: was worKmg on a hou.'\c:'!
:\ I It: wa..;; \\"orkmg on a house. He wa...; like a
contractor. whatever UCk:S repairs on houses. He said. yes.
he .'~aid the: sW,te trooper'.i already bt.'Cn I.:alkd. I said
okay.
So then r \'Talked across the tr.lftic of the
west hound lanes. across the guardrail. and walked up to the
McQuaide <lnver ,nd JSked him ii he IV..., all right. An~ hc
said yes. he was fine:. And like I said [ told him. I SJid.
hoy, you goon a get some high dollar tickets. He says he
docsn 't care. He says hc: already rold hissclf if he e\'er
had In acciut."T1t that he wa.<; done truck driving. No maHc:r
how serious or how minor the: accident was. he wa" donI."
truck driving. I :;ald. well. you gonna g~t :.;:omc high
dollar tickt.:[s.
111cn I walkt:d on:r to [he guy in che l.::.Ir. amI
I askc.:u 111m if he was .:111 ngill. Ant..! he.: sait..! yes. he.: \"':.1...
tine. I ...aid arc you 'iun:. Yl.:s. I'm tine. I ..alt..! uo you
nced a rescue S4UJU. No. lie ~:.Iys I'm ..e~lTed In ueath. hUI
rtl11line:. J saui okay.
Q Dic...l the: plalOtitT h:lI you .mYlhing c1:'C Ihal
n:c>llI or this man In the; ":::.1(,1
:\ No. ht.: didn't. Ocher Ih;.m .- he ~alt.l Ihal ht.:
tried In gc:t nUl of ~ldJualt!e'.; n I shouldn't ...ay he said
Md)uaid~ -- hc.: 'ialll he.: tried In gel nut nf [ht.: InJl.:k'.'i \I"';l~.
Pagt: 17 - Pag~ ~O
Gary Lee Neff
CondenseJt! ','
February '.I, 2000
Page ~ I,
I hut he just cuulJn 't get fa.'it cnough to gel out tlf the
~ truck', way.
J Q lIow about the PC'lln,')'lvania turnpike L'I11plo}'c"
a You said you I.1lked 10 him 100"
~ ,\ No.
o Q You didn't talk to hIm'!
7 ,\ No. I didn'llalk to nobody Ihat work, forthe
~ lurnpike ilself. The guy that I talked 10. like I ,..d, he
,} wa., on 1M nonh ,ide of Ihe turnpike. Like ,he ,urnp,ke
JO h..< 1M bank and fC'llce along ,he ,ide of the road '0 you'd
I I have to jump th, fc'llcc to talk to Ihe guy thaI wa., working
I ~ on the house.
I J Q How about the b'UYS with (he cones that ',,"'C were
I a talking aboUl before.
15 A Okay.
16 Q After Ih, accidc'll'. did any of them come 10
17 the scl.."r1e'!
IS" If they did. I didn't talk to none of thL'I11.
19 The only ones Il.1lked to wa., ,he stalC 'rooper. the
:0 McQuaide driver, and the guy in the C:!J'.
~I Q When you're at the scene t.1lking, say, to the
..., guy in the car, could you still see that truck with the
13 arrow pointing 10 get into the right lanc:'!
:4 A To be honest with you. I ne\'er paid no
:~ attt..-ntion to that truck until I got in my tractor~[railcr
P:l~C 13
relaled he wa" appro.,una'd}' :5 )'Jld" I1<llInd L:nll I "
: Q ,\t Ihe lime,
J ".. at lhe lime of Ihe acc.dc'lll. Neff,talCd
a he was Iraveling .- I gucs< thaI', about h5 mile pc:r bour
l and Unil I new by bim at a high rate of 'pcxd. Neff.. I
tl can't read without my glasses
lJ SlalCd,
;\ .. stated Unit I .. IS that l(l()m~d'.'
Q S,:cmcd.
III A ""''\.'I11ed'ol1<..
II I lJ Changmg.
11= ,\~. changin~ lanes when he lost cOnlrnl of the
IIJ \'Chicle. NclT 'tated hc did nol ..
14 Q Nmicc.
1 S ,\.. notice OlDY other vehicle in (ront of
16 Unil!.
H
"
That's not what I told the: state trooper.
Q Le,'s just go through it ,hen. The firs< line
says this officer interview Mr. Gary L.~ ~cff Jot the: SCI."llC:
at appro:<imalcly 13l S hours. Can you agTl'C with [har!
A I can agn:c with the time because it's ht."t.'n
right a long time ago. but I can agree: with the time being
dose. yes.
Q TIle" he indicJ.h.:S. :\Ir. ~c:(f related he: Wa.'i
! 25 Jppro:dm~llcly 25 yards behind L'nir ~umbcr t at the tlmc 01
17
IH
119
/':0
:1
I~~
!2-4
Page 22 :
truck and started going down. going back down the highway. !
2 Thl.-rt I looked oV~r -~ of course. once as soon as you get in i::
J Ihc tnIck and you're setting there and you say, well. ain't I J
oJ no wonder we're having an accident because thD.['s how close '*
5 the: cones was to the accident itself.
o If I rem""bcr correctly. the accident happ""cd
7 just before you go under ,he bridge. okay. and that i,
S where they was working on the cones .- I mean. working on
9 the guartlrnils, II'S like under the bridge and just a
III little bit wcst of tbe bridge.
It Q Now. you indicalCd ,hat you also 'alked to the
I:: stolte trooper -.
13 AVes.
I..; Q -- at the scenc'!
15 A Y~s.
In Q 11m going to show you th~ sta~ troopcr'.'i
1- report. and on page.J there's a paragraph regarding his
IS interview with you and hIS summary or his inten'iew with
19 you.
AVes.
Q Could you take tht: time to read that for me.
A Ir I I:an Sl..'t: it. because [ don't got my
.... glass<<:s with me.
(Rc",ding): TIlis offkcr interviewed Mr. Gar\'
_. l..'C Neff al SCl.'t1e J.t approxi.mJtcly 1315 hours. Mr. Ndf
:n
:1
..
.-
Page 24
the accidt.'t1t.
~\ I did not lell the stJle treJOper thar.
Q Do you agree: with thm statl.~tmt though?
A No.
Q Your testimony before \\las that you Wcre
6 approximately 50 to 75 yards beiund~
A Yes. at Icast. l was not only 25 yards behind
Shim. [could nevcr han: got stopped,
I;) Q It ncxt gOt:S on. it says. ~eff stated hc was
Itl trnvcling about 65 miles an hour. Do you agn.~ with that'.'
11 A After I got on the turnpike. yc:s.
Q And tht.:n it states. and unit Numhcr I new hy
I J him at a high rJtc oj' SptXd.
I"; A r uonlt Jgn:~ with that.
J 5 Q Do you know why that would hc in then: then'!
16 "No. I don'l.
Q Did the McQuaidt.: vchide Ill' hy you at a high
1 X rate of Spt..'t:u'.'
:\ No. ht.: diun't. like I '\aiu. I was gctting on
::0 tilt;.' turnpikc ;,Jt I..'xit 19 wht:n McQuaidt: Un\"l.'r comc hy m....
21 hut I was not on the turnpikc travcling \\'csthound and
:::: ~lcQuJiJl..' l!ri\'cr did nm get in the left-hand IanI..' to pass
23 me. no. f haun't c\"t.:n got on the turnpike yet when Ill\..'
24 ~kQuaidc Url\"t:r w\..'nl hy mc.
C..l Oby. It next goes on to ;,;ay. NdT _;,;t~llcd
5
I:
17
]9
:5
Susan M. Simon, Rcportcr-Notary Public
Pagc 21 - P"g~ 2~
Condcnselt !
,
Page 1S
Vnlt :O<umbcr I "",med to '" .h.n~ln~ 1."", wh.:n I", l'hl
: ~onlrol or Ihe vehicle.
) A (did nol say Ih.1.
. Q What 1$ wrong wilh lhal stal""',,"!,!
! A 8eca= ( did notl(1I htm lhat he: wa.. 1=
6 ~hanging. nle: only llting I'" ,UI<: Irooper ,.k~d me wa.,
7 whal do Ith,"k h.ppo:ned.
~ Q Th~ Ia.'t line <oy', Nefr ,uted he did nol
'J notice any other \'chich:!\ in front of Uou Numh-.;r I, And
I" you ~ wllh th.t. righ!'.'
II A I do agree wilh Ih.1.
I: Q Did Ihe police om."r a.,ked you that
13 pmnl'hlank'!
I. "H. asked.. no. he didn't. """au."" h. asked me
IS wh.t I thought happt.'lled. and I "".d Ihat (Ihink McQuaid.
16 wa., driving too rast. That's.1I r told hun. And th.'ll r
17 s.id ( cannot srand hen: and tell you that this is Ihe way
IS it was, I told sute trooper lhat the McQuaide driver lold
19 me Ih.1 a vehtcle stopped io rronl or him and he slammed 00
:0 h.s brakes. r told Ihe st.1C troop.r r did not ,.:. any
21 vehtcl. stopped in rront or McQuaide. I did not s.:c it
" Q Other Ihan your Slo1l<.'I1l,,"tS on the day or the
:3 accident. did any inw:stigators ever call you up at your
:4 house ami ask you to give :my statl.~l.-nts'.'
:5 A I got this letter wht:rt: they Silld .. whuever
GlU)' Lee Neff
,
Page 26 :
the people is. said that they tried to contact me l1y phone
: as you can read in it.
(Documenl handed to ~ounsd,)
llIE WmESS, And I'll be hon.st wilh you. I
5 did not respond !o the phone calls. They wrote [ht: lctter.
Ii and I still never.. you know, I just didn't do it.
i BY ~1R. PRICE:
~ Q Th.I's just . letter rrom counsel ror Ihe
q pl.intirr. Ih.I'S all.
I n Did you ever talk to Attorney Dowling
11 regarding the accident?
.-\ [ didn'l t.lk to nohody, Th. day or the
I) accident. the p.ople [ t.lkcd to again would h. Ihe
I~ McQuaide driver. the state trooper. the guy in thl.: car. and
15 the: guy that was working on the house, From then on. from
In that dme of August the 81h. '97. or whenever il h.ppened.
17 I talked to no one else other than yesterday and r calh:d
IX the office right here I guess it was. and then she: told me
19 Ihm the deposition. wh<ltc\'cr it':; calh:d. would still be
10 ill I o'clock p.m.
Q After you got that lclter. then you ne\'er h~J
,.. any ~ommunic:.uion with Attorney Dowling or this la\\! linn',' .,..
..\ No. sir. none.
:o.m. PRICE: 1l1anks. l11.:U'S all the qu\!stions
15 I have for om'o'.
)
.
12
:1
,.
-,
:.
Susan M. Simon, Rcporter-Notary Public
Fcbrua
9.2000
Page 1"
nu: WI f\i:SS ()~..~
:
J UY \1R. DOWLl~(j
Q ~Ir, Sefr. my na.mc " Andrew Dowltng I haw J
S rew qucsllons ror you,
Old you ever lalk III ~lr Pn~~ IIr IllS [aw fino
i ahouf thiS JCCIUI."rtf.'
A So
Q How an: you ~urr.'lltly .mployed"
..\ I dn\'~ tractnr-li.ull:r lruck.
Q For whom'!
..\ C.1l'li~lc: Camer.
Q How [on~ have you hccn Ur1\'in~ tor C.Jrlish:
14 Carrier',)
15 A I do nelieve: we: just n m~ ;inti the: wiJ,= just
16 set dO",TI last night checking check stubs. ami she says the:
Ii date: start .....'as D:cc.."JI1bcr the 1st of 1999.
Q Beiore that. who did you dri...e for','
A R,ck Wright.
Q How long did you dn\'c for him','
,\ Six years.
Q And h.fore th'l. who did you driv. for'.'
.-\ L:~ me: think. I do hclic\'c it was National
FreIght DC: of Alk.'11 (sicl. ~C\V Jc~y.
Q Old you ever Unve ror w C, M~Qualdc'.'
I .
h
s
"
10
II
12
IJ
I~
Iq
:0
21
22
,-
-,
1:4
25
Page 28
..\ :\0. :m.
Q Dill you ever drive any cqulpmt.:nt from F &: 1
J L:asing Company'!
~ A. :\0. sir.
Q Have you c:\'cr h~ard of \V.c. McQuaide','
A Yes. ,ir.
Q In \\That way have: you heard of thl..-m':'
S A Tnc:: live" their company is in lohnsto....ll.
9 Pcnnsyh'Jma. I live in Clayshurg. Pennsylvania. which IS
10 approximately 35 miles apart.
II Q Do you know .nyhody or did you know .nybody
12 that workt:d for or drove for W.C. ~tcQuaide'.'
13 A I knc'.'" 50mt: people. Now McQuaide has likt:
14 tl1rct: or four difft:n:nl companit:s in one. I guess you'd
15 said.
:
5
h
~
1<\ Q I meJn all of th~m.
17 A Y.:s. I knt:w som~ pc:opl~ that drove: for W.e.
I S McQuaide,
19 Q Do you still know them'.'
.-\ Yes. I do,
Q How many peoplt: uo you know'.'
A Let'.; ~C:. there w.:t..; Gary Ramst:y. and rht:rt:
23 w.:t..; Randy RJm~y. 111'::: '''';;IS hrOlht:rs. ll1t:y pulled llathed,..
,2.l. for \-kQualcc. f do hdit:\'c [hat', the: only two I rcally
125 knt:w.
20
:1
Page 25 ~ Pag...: 2~
G
Lcc Ncff
Q HlIW do )'UU know (j.ary R.un,.."Y'
1 A Bccawc when I workoJ (or Rh:k pulhn~ I1Jlhl'\J
J fR:JghL me .IOU Gary lUcd to pull ~e hama,. tb.",c
" ~om;me banicn that you '0: in the muMJc of lb:
5 lu!Jhway. And y..c.. llncc In a while: flick would !j:cllhl..m
" through Oox Planks iillllC way McQl1auJc got thc:m wough Dl)'(
7 Planks. and wc'd ukc them nUl to hkc on the tutt1J'HkC' alld
!4 iCE thc:m. \Vrule we Willi 'clUny In lICI unlnada1. me Jnd
II Gary would set there and ulk [0 Qcb O~T.
10 Q StJ VOU lx..-CalnC fncnd.;.'
II ,\ ,",-s.
11 \1R. PRICE; Objection to dlC form.
I J TIlE WITIOESS; \\oMI wa'i that','
1-1 'IR. PRJCE: You l.:an anSW\.T.
J~ .\IR. DOWU:->i(i: He did. He .;a,u YC5.
16 BY :\lR. OOWUSG;
Q Do you know the dri\'er of this tr.Jctor.traikT
I ~ in\'ol\'cd in this accident'.'
1\ No. sir. I do not.
Q Do you know his nilme nnw'.'
A :-":0. I do not.
Q His name is Jdfrey BIY'itonc.
A Don't know him.
Q You met him at tbe iCl.."f1C;
A The only lime.
17
19
:0
!I
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~5
You didn't know him hdo", ,hat'.'
Pa~c 30 i
- I
i
I
I
I
I
Q
: A ~o. ~ir.
.3 Q Have yOU talked to him after th:lt. Jftcr the
.. accident','
... A No. sir.
6 Q At any timc:?
7 A ~o. sir.
S Q Have you talked to anybody about this uccitk:nt
9 from W.e. McQuaide'.'
10 A No. sir. Now. if I may say. I got my wife to
11 call McQuaide to let ,hem know Ihat [ had '0 go 10 court.
I! and [ wanted to know if [ could talk to the safety
13 department for McQuaide's. They nc;:ver once called me hack.
14 they ne\'er once wrote me a h:nr.:r. they never once
]:5 responded any way. shape or Fonn.
II> Q Why did you do tha,'!
17 .-\ Bccau~ I wanted to know why f was being
IX subpoamcd to court. but they never rcponscd (sic) me. none
19 Whulsat=\'cr, For the Fox ilnd James part. I ncvc:r talkcd to
:0 nobody from Fox and James.
:1 Q L::t'.~ assume: someone from \V.c. McQuaide hJd
...... calh:d you back. \\bat did you want to lalk to them about','
:3 A To St.'C why I had to go to court,
~~ Q Did you \....an(~d 10 talk to th~m ahout th~ facts
~5 of [h~ <.1CciUt..71t','
Susan M. Simon, Rcporter-Notary Public
Condcnscltl "
I'cbruary 9. 2000
p"~C ) I
Page 1C) ;
1\ Tu let Ihl,,"Tll knnv.' \\ohJI I knew. yes
: Q Why did) ou wanl 10 Icllth<-m"
3 ,\ I ~an't n:'al1y honestly an~Wcr that questIOn
~ [~I':S' you'd ....y I ~ot <can:d heC"U.'" I neVer had to he ,n
~()un o\'er an JCCI~C'T'It helore.
I> Q I.kQllald.: I< " fellow truck dn,',"~ company to
7 your company" You work for C.lI'lislc Carner'.'
~ ,\ Itt~hl
l) Q Anti ~h.:QUJ.h.!~ I.. .mulhcr (ruckln~ company'.'
III "Right.
II Q Is Ihat why you wanh:u to talk to them?
I: ,\ Nt)
13 Q Now. wh\.'":1 you QY you got on the turnpike.:. lhtl
114 you ~\'Cr catch up :0 the ~lcQualde vducle'!
J 5 t\ \\,111,."" lie- vm.-ck"d,
II> Q BUI hefo", tha" he pa.<scd you a.< you were
117 ~et[ing on Ihe lurnpike. did you ever make up ground and
18 caleh up to him :'iO you \\'erc travding along together. or
19 was he always in iront you,'
:0 1\ He wasn't mlikc two. thn..e miles ahe:ad of
.21 me, no, Now. \'.'h~ I rlrst got on the turnpike. f guess
.2.2 you'd $aY he was .. guesstimate.. a half a mile ahead of
1.23 me. But th!.."" r. you know. C:lUght up to him. Bm Iik~ I
I':-l ~aid.1 didn't nd~:us nack doors.
,
:':5 Q \Vhat \\o'JS :hc: doSt:st you l.:\'er were to the:
Page 3::
McQuaide vehIcle.'
1 A Like: I wouid $Oly. 50. 75 yards.
J Q Is that how far you were away when the:
4 accident happe:nt.'d'~
5 A Y cs, [me:m. that ..;ounds close. Like [ said.
b I don't know how .- I wa...; far e:nough behind th.lt [could
7 see McQuaide: dnving across the guardrail. okOlY. I was far
8 ~nough h~himl to ~ it go across the: guardrail. but I
I) Wa'in't dose l."T1ougn that :f he: would actually Jut his
110 brakes and wouldn': have \'''c:nt across the: guardrail and
11 Slopped in Ihe middle of 76. [ would not hil it.
I': Q You mc:ntione:d anom some: turnpike: anployec:s
13 working on the: gU:l."'dr.ul','
14 A Ye:s,
115 Q Was that the gwrdrail hc:tw,..c:n the: east. and
,
i 10 westhnund lanl..'s. or the g'Jardrail on the: right side of the
Ii roatl'.'
IS :\ Bc:twl.'Cn the: e::l..;t. and westhound lanes, TIle:y
19 was on the \\o'e:st :illic: 01 the: tumpik..:,
Q By tht: west saic:. you me;;!n in tht: wc:sthounu
Zll
11 lanes','
"
A Exactly. Tnc: north 'i1l11..' of lht: lUrnpikc: in
the: wl..'sthnund lanes.
Q And did you ~c: thcSl: pt:oplc hl..'fore: the
Jccidc:11 \lr Jfrer the: acc:ucnI'.'
I"
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,15
Page 29 . Page 32
(jary Lee Nell
.\ ,\lIl.'r (h~ J.l,,:ca:....nl
: Q 1lus Wi.l,"l .an..:r you gut h.1~lo.. In yuur InJck .md
J "itartcc.l dnVlni:"
.. A E,laclly
! () 1I0w lony: ....ere you .It Ihe ""'1.'T1C"
t) 1\ flalf.u\ hour, 45 mlOUlcs
Q Because [he police rcpur: lOulI.:alcs lli.u Ihe
S .1CcIC.knl haPPt.l1cu Jpprn,,(lInalc:ly 1~:u.J, r(lur IJUnUle'i JIll:r
Ij nuun. .md accordJn~ 10 the pnll~ n:purt he IOrcn'h:\A.cJ yuu
III J[ the Scene <.It 1315 hours whu..:h... 1:15'1
II ,\ 'nJat makes huur and II minute..; ditl~n:nl
I: Q Yes,
IJ 1\ I didn't SCt there ..mc.J louk..1f J watch [0 St.\:
J.J What t(mc [he acculc..TH \larlcd J.nu look .It my walch to 'c.'C'
15 What lIme the state trooper t.1lkcd to mt.',
10 Q So you l.:ould hi1\'c bt.'t.11 there oVc:r iJl1 huur','
17 A E,'"",ly,
IS Q Do you recall after the: SLltc trooper
19 inlcn'lcwe;:U you. how long you n."malncd J[ [he Sl.:cnc heron:
:0 you Icft'!
:1 A Fi....c.:: minutes maybe. AfL:r the SW,tc trouper
" askod mo whal ho had '0 ask and I told hIm. liko r saId. If
:3 he no:de:d to .L'ik me: .:my questions. you have my phone
:4 number. H~ said that'.;: all he had 10 ask. I got in my
:'5 truck and left.
Page 34'
Q So from the: tunc the al.:CH..lcmt happe:ncd until
you actually got In YOUT truck and left was abnut an hour
3 and 21 minutc;:s'.J
.I A Exac'ly,
- Q During that timc you Wcrc at the scenc. did
6 you go OVc:r .lna talk to the Un ver of thc tractor-trailer?
A Yos. I did,
S Q How long did you talk '0 him'?
I) A Two minutes maybe, if that long. Long enough
10 '0 ask him if ho was all right. and ho said yos. And long
J 1 t:nough to lc:ll him. I said. boy, you gonna get some high
J: dollar tickcrs now, He said he did not can:, He: said if
J3 he e\'er had an accident. thar he Was done. He hadn't ht.'Cn
I... driving truck that long. If he ever had an accidem. he
I ~ \....a.s done.
I f1 I \....Jlkcu bal.:k ro the.: guy In the: car and asked
1- him if he WJS all right He: said yes. r said an: you
1:-; -jUTe.:. He.: :jaio ycs. l :0;,:110 I havc J phone: in the: tnll:k. I
1':1 ~an I..:all a rcSl.:ue SqUJIJ. Hc said he.: donlt "e:ell nne.:. I-Ic
':1) .."lId that he: was scan:d ro de.uh. IIc tricd to movc Out of
:/ (lIt: lrul.:k', way, hut he wasn't fast l.:nough.
Q \\11eo the: dn\'cr of Iht.: whill.: I..:.:lr said he was
M_ -j~ared 10 Je.::uh. did be: look scared 10 de:atll'.'
..\ Nm rcally hc.:c:llIsc he.: \"'as 1e::l.OlIlg lip against
.... Ihe.: quarter pancl of Ius ~ar, again if Il.:.m re.:call
Susan M. Simon, Reporter'Notary Public
COIIl.lensell!
f)J~e .1]
Feoruary lJ, 2UUU
P<Jgc 35
.,;orrl.:l.:tly, \\11th lll~ .mll.... .,;ro'i'iCO
: Q How would you dose""e IllS JppO:1l"JIlCO and
J ue:meanur"
! -I ,\ r don't unuerstan..J what you mean.
f) Ifan: you c\'Cr ba:n In a l:ar JCClucnl'.'
" A Yes.
() Dnvlng tr>1C[or~lrJllt:r 1
:,: A Nil r takl.: that back. Yes. I've On-n in an
! IJ .u.:cuJent tractor-trailer truck. but nothing like lhts_ l\.-ly
! III .!";CllJe:nt Wa.>i:. We Was lrawhng maybe ~ mIle: an hour whl."t1 ,J
: I J van hu me
i I: (.) ,\ what hit yuu','
! I J A A van.
11-1 (J lr was the van'..; fauil'.'
:IJ~ A Yl.:s.
, J 0 Q \';llon did ,hat happon.'
! I':" A S~wral years ago. Bdore this Jccidt:t11.
!IX Q Did 'he drivor of ,ho whi,o ear that got hit.
i 19 did he' appear upsc:t or shaken hCCJLL~ of thIs accidt.'l1l','
: 10 A He Was UpSCt. Hc WJS upset hecause his CJr
i'::l gar hit. But that's all I e:ould say
,
J 11 Q Now. when you oosa-;cd these: turnpik..:
! 13 t."rnploylXs working, you SJld you nottccd some Cones anti .:J
::.; truck that had an arrow pointing to the: right.
i:::'5 ..\ To lh~ ngbt which me::ms the left lane is
PJge }o
gomg to end.
:. Q Wh~rc Wa"i that in relauon to the: accldcnl'.'
3 A How far would It be: from h~re to that From
.; Slrt.'t:t lert lane sign. nghr out there. that grt.'t::l si!:'11'.'
- Q 511 yards"
Ii .\1R. PRICE; 50 yar<i..;'.'
i 'mE WIn:ESS; TIlt:n I would :iay :tpproxirnatdy
,'i that far,
9 BY .\1R. DOWU;\,G:
Q And i, Was 511 yards funhor n
A West.
Q West'.'
A Of the: accident.
Q Okay. And h(w.' many l.:onc:s did you see'!
.., Oh. r don', know, Ennugh.. 'hey put 'horn ou,
cnnugh to make sun: th..:ylrl.: surroundcd of l:ones.
Q So just cnough [0 surrounLl rhJt one truck with
IS lhe:J.ITow'!
:\ Anu the.: pl.:ople: working in front of the truck.
~o yes. I did IIllI ~Cl.: a half a mile: or mile of I..:onl.:s. nn.
e.) JUSI enough to :o>UITOllno thc truck and J. fcw
.:!1 pcopl.: \I,.'orklng'.'
:\ E.I\,,,.:!ly.
jO
II
I:
III
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10
17
t9
21
i2J
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Q
[hl.:n:1
Dn you know how long iho~ ~(}ne:s or truck Wen.'
Page 33 . Pag~ .~ll
Ga I.ee Neff
-
.\ :-.ill. t dlln'l
~ Q Do you know If (hey were ~l up liter lhe
l "".Ilknl h.pfl<:I1ed"
. A So. I don't
j Q You mcntlon~d you didn't ~ my 'Igt\'i .IS j'11U
I') were Il'3vcling wCllIlthound thai w3lT1cd you of these ~onc'i'1
A Exaclly. I did nnt "'" none
;0( Q You don1t know If JOY of those ~I~,"'" were ~I
tJ up In the hour that you wen: ;II the 'iCt.'11c. do ynu"
10 1\ ~o. I uon't. TIlal part .'iurpri~d mt: why Ihey
J I didn't have the Sign" Ihar nnnnaJly would -.;ay. like l'iay.
I:: I<<:r't-hand lan-= t.'T1di ont: mile. 1500 ft:cr. :500 Il.oct, 'iO on
13.nd""fonh
I ~ Q \Va.... rhe t.'11tirc left lane hlocked hy these
I! cones'.)
16 A Yes.
17 Q Is rhe twnplkc in the area where {he Jccitk_'111
IS happ..",ed n.t. CUl'\'Y. hilly',' How would you descnhc that
19 Jl'C'J'!
20 A flat. aml as you come around J turn .. WhL'11
21 you're coming: from the east to rhe west on Ihe turnpike.
22 you will go around J slight rum. not no sharp curve. hut
1.3 you will come;: around a slight turn and thl.'tl you'r~
1.4 .'ilraight.
''; Q u:t me ask you this, ~Ir. ~eff, :i you wat.:
,~
Page 3 S
driving your tr.Jctor-trailcr going \\'esthound ..
~ A Ye~.
3 Q'. let's ~y a mile before thiS accldl..'tlt. jWit
.4 a...; you were driving nn that day, and then.: v.'~rc no other
.. cars on the road -.
h
A Right.
Q n and it was daylight --
,
8 A Right.
t) Q -- how far hack could you <;t.'t: these cont.:s anu
III this truck~
II A However far it would he from once you come
I ~ around the turn.
IJ Q That's what I'm asking you. How far woulu
1.4 thilt be','
15 A 30ll. ~OO yards. SOO yards, I'll put it to you
I n this way, if this IS the answer you're looking for. you
/; h3\'C time to stop. My opinion,
IS Q \\11en this accioent happened. you :-juid you sa\\!
Il) the McQuaide.: vehicle.: go from the.: righllane.: and slide inlo
':0 the It.:ft lane.: and then lhrough the guardrail. IS that
.: J accurate'.'
.., A l11>lt's the way I seen it. ye....
~3 Q Dn you know \\:hy it .'ilitI from tbe right Innc.
:.t Id't lanc. to tht: guardrail'.'
.... :\ No.
Susan M. Simon, Rcporter-Notary Public
Cono.lcnseltl
PJ~e J":"
P:.l~t: 3')
f) OIl :.IIU knuv,,' (nlln :"IUl 11\\n ;,hscr\;uu,", llr
~ knnwlt.:dgc'
A So
.4 Q Ilnnr In Il ,Iahny: Into the: Ie.:fl lar.e In lhe
S ~l.Wt!r:lIl. did you 'iU: It !'Jouncing or ,hJmmenng .1( .111"
J') 1\ ~c)
Q Do you know Ii the trock had .1pphed Its
;oj hrakl." hcfnrc Il 'illd mfo lh~ Idllanc Into rh~
g:uardr:IIJ? necau.~ you m:ntwneu you Jidn't ~'t: the hrake
Il~ht'i
..\ I can't ,u hen: and QY lhal. no, lx'Causc
like I '.lId. It'.. ht."t.'tl lhn.'t: years or do.;c tn It.
Q It' i .I long lime ago"
A RighI.
f) D/(J you revlC:w the rml/(,:c rc:pClrt heron: coming
ht:n: to(.1.1:'/'
A Ye'i. whl."n I gOI through che mall Jnd [ wa..;
'Cttlng .It home.
Q \\'11CO you got lhe.: sunpf~na:,l
..\ lk(orc [hat.
\tR, PRICE: Your letter hJU the: police: n:port,
\IR. DOWt.r.-.-G Did your ..;uhpOt::1a havl: a pnli..:.:
'I
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repon','
\IR. PRICE: No,
BY ,\IR. OOWLCNG:
Page .+0
2 Q
3 A
. Q
5 ..\
h Q
7 A
H Slamp.
I) MR. PRICE: ,oon.
10 BY MR. OOWLCNG:
] ] Q Have you driven this roule'?
I" A Six ycars.
] 3 Q So you were familiar with the area'!
]. A Yes.
[5 Q Have there been other occasions during the six
I n years \1ihere you have seen construction in this area'!
17 A I cannot say just in that general area right
] s there. bUI on Ihe turnpike from exil u from the Ohio
19 Turnpike clear back 10 exit -- whatever Philadelphia exit
:0 is. exil 25. exit 20, It's conswntly having -- you're
21 constantly having road construction on the ntrnpikc.
" (,) A couple times you mentioned this accident
23 Imppcl1cu a long time ago.
2. In facl. it happened August Hth of 1997. which
25 would be. 011. two and a half ycurs ago,
Page 3 ~ - Page ~o
So you gOI the poliee repon'.'
Yes.
And Ihat was how long ago'!
January.
Of this year'!
Yeah. I guess. I can' I read the date on the
Gary Lee Neff
,\ Itlllill
Q l!t Il fair 10 say that your rm.'"tnory l'( ~\:~nti
of IhlS accidc..-nt would he hcltt:r hack In Auyust of '97 than
~ thl:y at\: today"
~ ,\ Well. sure.
" MR. DOWl.l~G. Thank you. sir. ThaI''; alllhc
. '4U1:sllnns I have.:.
S Mn. PRICI:. I have a ,,:our'lc l.{ucslliln'i
'J
:
III UY \tR. l'RICE:
II Q Gary. you Indicated tha, you kncwa G."y
I: Ramsey and a Randy Ramsey"
1) A Yes. they're brothers.
H Q Who had workcd for ~lcQuaide"
15 ..\ Yes.
Ie; Q Would the fact that you know these gl.."t1tk"mcn
17 affect your ability to ~ive tltlthfultestimony here today'
IS A No. it wouldn't.
19 Q Wuuld the fact that you're a tltlck <invcr and
:0 this ~ase involves a truck. affect your ability to gln~
;: I lnnhful testimony'!
..... A No. it wouldn't.
_. Q Whc:n you got back into your tnlck and you .;aw
:~ these workers with the cones and the arrow si!,'T1s n
"':: ..\ Yes.
Page -t:!;
- ,
I Q -- were they workin~ on the ~uardrall that was I
;: hurt by the: accident or past it'! . ;:
) A Past the accidv'Ot. And if ,his would help i )
.; dlher one of you two people. after the accidcm. going (0 ! ~
5 th~ mushroom fann Qgain .. I don It Wmlt to say that it \\0':1..'; I 5
6 m'o days later. three months lat~r. whatc\'~r -- but [ wa.o; I 6
i going to the mushroom farm. and just hdore you get 10 ~xit j i
S 19 you got to go across the: bridge. I s
~ I was going east on the turnpike one night and i 9
10 a truck driver is coming west on the turnpike, And I SI..'t.'T1 110
11 this ,ruck hit the concrete barriers in the middle of the ! II
I" highway, ! I"
1 J And if I can say it. 011. shit. hels going to I J
IJ .;omc across them barriers, So I slowed down real slow. and I~
15 I was scared. okay. : 5
10 And when I got orr exit 19. r left the people IIn
! - know in thl:: tollhooth that collected my money that a truck I J-:
is had just hit the concrete barriers hut he didnlt wreck JS ( ! IS
j'o) could St.~. and I don't know if he pulled off. hut 1 said "19
:n would you please let a state trooper know. 8ccau~ if :n
: I (here's an accide:nt. I want to let somehody to know. i : I
I don't want to lie for nohody for no re::.1son :1
:3 whatsoever. I'm not lying to nnhmJy hecause I knO\\' the: t\\:n :3
:" Ramsoy hoys from ~lcQuuide. ""
~.. Q L:t mt: :l.."ik you this. nle~ guys working on 15
Susan M. Simon, Reporter-Notary Public
Condensc:Jt!
P;l~C ~I ,
February I), 2000
pj~C I}
lhe l&u.udrJII"i. ,Jt) you "nnw If they ,""cre lhen: prwr Itl
~ Ihl" J4.:cak.-nt"'
,\ No. I can't 'i..1y lhat.
o Out dunng your lime. that huur and I S mInutes
at lh~ .JCcu.k:nt ~-nc ..
~tR. DOWIJ~(; Hour and ~ I
'7 UY \lR "ltIC'l:
X Q lIour and Z I. did you sv" them .unve durin~
LJ th..tlimc'!
,\ No.1 didn't.
:\tR. "RIC[' TIlat'.; all the qucsuons I haw.
I ~ (thank ynu for your .;ooperJlton.
J
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Il
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10
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114
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i 19
,
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1'1
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BY \tR. O()WU~(j
Q Do you know what kind of work these turnpike
I.:mployccs were dOIng: on the ~dr.J1I'!
A TIley WolS rakmg -. what's it this way called
whc."T1 it lays [his way (indicating"!
~tR. "IUl'E: Honzonlal'!
nlE WI'Th'ESS_ They was t.1kmg:. puttmg up the
honzontal parts of the guardrail. Th~ posts Wil."i already
in the ground. and the planks as far as I can reme:mh.:r w.:rt:
p3 already against the post. Th~y wa,l;j putting: (he guardrails
:'::4 up
i'::~
\IR. DOWU:"G That'~ all I han:.
Page ~~
(4-page police accident rcpon produced and
marked as Ncff Deposition Exhibit Number 1.1
(The deposition was concluded at 1:50 p.m. I
Page 41 . Pag~ 44
-IS
'f'
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF DAUPHW
I, Susan M. Simon, do hereby certi~y that be!ore
me, a Notary Public in and for the County and Commom.,ealth
aforesaid, duly commissioned and qualified, personally appeared
GARY LEE NEFF
who was then by me first duly cautioned and (sworn, affirmed) to
testify the truth, the whole truth and nothing but the truth in
the taking of (his, her) oral deposition in the cause aforesaid;
that the testimony given as above set forth was reduced to
stenotype by me in the presence of said witness and after~ards
transcribed by me or under my direction.
I do further certify that said deposition was
taken at the time and place in the foregoing caption speci:ied.
I do further certify that I am not a relative,
counselor attorney for either party, nor am I otherwise
interested in the event of this action.
IN WITNESS WHEREOF, I have hereunto set my hand
this 19th day of February, 2000.
I
I ~107;,'::I,\L 5='\1
. ~USA"I'.; :5~... :.'~ 'i;~'~;IOlrb"c
I nar;': :.,:, -, ~.',;,fo., "'_, ..~,
~~~:::~.: :...~i::"~ :~. ~.!~3.D'~~:E ~
o:-~
-),/ .
.;./f'1f?/l1'7J;. 9fc
Susan M. Simon
Reporter-Notary Public
The foregoing certification of this transcript does not apply to
any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying reporter.
COMMONWEAL TH OF PENNS YL VANIA
P?LICE ACCIDENT REPORT
._._._~DlE I~ ~M)u.nU'OIl'.IkII..) ~f"""'tIIltI4.'
:" . POIJCEINF.ORl.tATION -- ACC' Ice"",;""""nON"; . ...\ ..;~. :",
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PRINCIPAL ROADWA Y INFORMA TlON
:'1 nOllu'K)Ofl ~--- -"-- -- . _'__
"nLL,""'" .,~ "'e'" ~"o::l'l'o
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lIMrr 1...0<;', - "0011"" ~_. :. C_D,!!,!-"L~;
INTERSECTING ROAD:
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~ tM CArD, I' M1l.NAl.
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i.:~,,::::,.~, i~JNFORMATION
t ACCIJIJH 10 DAY Of Wlf.K
t ,!'ArE oeo-oe-en r?\
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.er:!!!!T't'PE~c.t:IQ~~. jl:.,)nO,.;)"',- ..v .~ rll I 11"'(' I
"l8OOY 1'\, I SPEClAI. I" "I..,,,, 10
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r~liifW aFAcr\ . ""l'r'EIIlClf. 0 I ~d ,"AIIII ._
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,
EXHIBIT NO....:.-
~ .. ,. .
~.;-/..?C.'c::';
Susan M. SImon
;OS noUT E rlO on
5lnEEf ,'^"'c
" 0;1"'[(0
lll.lll
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~ --'--jw,.lCcrn--
l.'=.:~~A..!-.__. _ "-: CO"'ROL .. o."!
IF NOT AT INTERSECTION: .' F<;j
]0 CROSS SfR.EEl on . --. '. !i~t~
seeM"".......,n !:!). l"o" Q.~~ \ .; ;1'4,
]. OIr1EC1l0'" ~._. f>> 015,1IlC1 ... --~-. ~fl,,~
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" ''''''''e, w~, 'J '" .!:,~\.
-.---- UEASunED L EStlMArED IN '~';t.:':
,ll ::OPlSrIltJCTlOrl 11i5I JnnrlC PRltc.lPA.l tflER.SECIINO. 'l\'l~:
10llC I 0. J - COIIT"", ,. 1 [:1' '" ..:1>
DE'IICE 10. _..1 ::' ':~'.
'-'- ...j.,..
' ',:- UNIT t2: ;.j ~'~~;
Jr.I.EO^lty Y"IJ"'lFO, C JJI.Sf....'. ~~.~
N"KEO" If: f'lAIE F S\Q..h.H::or __ ~,._ "';1"
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ADDRess \'-lr"\l.D '-I,..)C~"-N \"~A'-4._~~r._ .':..f
c~ ClfY srATf
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TVI'( 0 J.. . USAGE. 0 - O'MlEnSHIP ~t..~~:
~j jpllf.tAl l""rACf ~j"vEWClE .;21 'ii4.VEi.--~- :;',~
. PQrplI C::::t\ :... SMfUS D ....~!:E.E~__l..a~ __ :.~
~] V(IUCI E 54 ~OnNEn I r~5lORtvER "",'
GllAl}lWI . PRE!\EtK:E \ cop/orrlON I . \.~:',
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"uMoen \\0 "2,O.! YO I _ -._t:'v'__._ :'f':
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COMMONt"'ft'THOFPI;NNSYLVANI/I
PAR (.'ONTlNUAT/CJN SIIEET
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FRANK FRUCIANO, JR.,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY. PA
CIVIL ACTION . LAW
PlalntilT
vs.
JEFFREY ALAN BLYSTONE,
FOX and JAMES WIIITE TRUCK
COMPANY. t/dlb/a F/J LEASING
COMPANY and W.C. MCQUAIDE
INC.,
JURY TRIAL DEMANDED
JUDGE EDGAR B. BAYLEY
NO, 99-1917
Defendants
PRAECIPE FOR DISCONTINUANCE
TO THE PROTHONOTARY:
Please mark the ahove-captioned mailer Settled, Ended and Discontinued with prejudice,
DATE:
s-/tt/oo
I I
BY:
~-=-'"
Andrew H, Dowling, Esq,
3401 North Front Street
Harrisburg, PA 17011
Attorney for Plaintiff
DISCONTINUANCE
AND NOW, this IO"-"day of .1Yl 'at . 2000, the above-
captioned mailer is hereby marked settled, ended and discontinued with prejudice,
BY:
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