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HomeMy WebLinkAbout99-02056 \ \ \ \ I I J I ) j ( P1 ~...~ c3 ... ...9 l.() o (Q . , 0- 0- . ...0 ""7 .- . . ,~-~.-. ' 1!'~'1Y,J;:;w&f~.~j!i:~I;.:~:::;?;A;;;~s:;:.,:;.~2~"; ;'; \~:~t;~:\:.ii:'~;~;;:i';'~;i~~t~[f'; .- ,';,;~.; ";~';>'I J, . }.'Y J":f~"",." 1~ '",".-,.., -..~'.<':.'i'~+,{ ".if ," <,., ,"r"01~"(':'l~.~j",1.'~ i~ti~."j!' Ui~j.T}~:!~~jf~~~tt~kfJ~:;~;.s~~~~I:~;~~~i1~~ >1,''i'f'.'''\.'''';-''..'i).'..'..,...,''",.:'-'-',.y:....~',.\'j''."1,"..J::"...1!I~ii"'J>~"O ,~;i~[~t~~~~~r!~~~J~~~f;1~t"~:i~i~rfl1,i~x~~~" ,~ o~i)ii~oXKA~TZM';A;'~~'~:;$Hi~)jA\i;'-~p~' t,.t::~:':;,'I;\hI':i~::i~'~':,'i~~~o~io:'N:~B'.ft< Itta~t:ri',,;}>,!\>,r"~l'll~rjp' ,^" ,I ;~~fW;!t~:~~,~f~~:!;i~~~~~;i~;~;iY' i4 ~..-., AIUl1$BUaO,'PBN'H8YLY'AlfIA:l,1108~18e.a'r ,,', ;,:f:~VftG~(~~,~~~f~f;::,"~r(t?~:,'~':~~-:}:j:.;; ~::~\\{:.:;':;::_~\?!J<)/ (;~, ~ ;L;.~;?~:i~~;(:{/;~~fffJ!',\{:~;~;;t{r;~~5f~12~~:'~:..;~;.\".:s~(tf; , '. . '. '" ",. " . '.' .' '. - , . 2, Admitted. 3. Admitted in pan, denied in part. It is admitted that Defendant's insurance carrier was given notice of this action. The remainder of this allegation is denied in that, after reasonable investigation, Plaintiff is presently without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in this paragraph, proof thereof is demanded, and the same are therefore denied. 4. Denied. After reasonable investigation, Plaintiff is presently without knowledge or information sufficient to fonn a belief as to the truth of the allegations in this paragraph, proofthereofis demanded, and the same are therefore denied. 5. Admitted in part, denied in part. It is admitted that Allstate denied any responsibility for making payment on behalf of its insured, The remainder of this allegation is denied. By way of further response, the accident which occurred on April II, 1998, was directly and proximately caused by the negligence of Defendant. After receiving the letter from Defendant's insurance carrier denying payment in this matter, Plaintiff's counsel wrote a letter to the Allstate representative asking that the matter be forwarded to counsel and an extension of30 days was given from the date of the letter for the filing of a formal response to the Complaint. A copy of this letter is attached hereto as Exhibit "A." 2 6, Denied, After reasonable investigation, Plaintiff is presently without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, proof thereof is demanded, and the same are therefore denied. 7. Admilled. By way of further response, Plaintiff had given the Defendant and Defendant's insurance carrier 30 days within which to file a responsive pleading to the Complaint from May 17. 1999. After receiving no response or a request for another extension oftime, Plaintiff was forced to serve a 10-day Notice upon Defendant on July 1, 1999, in an effort to move this mailer forward. 8. Denied, After reasonable investigation, Plaintiff is presently without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, proof thereof is demanded, and the same are therefore denied. 9. Admilled in part, denied in part. It is admitted that Plaintitl's counsel spoke with Attorney Matthew R, Gover concerning this matter, and it is admitted that an extension of time to file an Answer was extended to Defendant. The remainder of this allegation is denied in that Plaintitl's counsel does not specifically recall when he spoke with Attorney Gover.. 10, Admitted in part, denied in part, It is admitted that defense counsel entered his appearance on behalf of Mr. Heck, The actual entry of appearance occurred on July 13,1999. Therefore, it is denied that counsel entered his appearance on July 9, 1999. 3 16. Denied. The allegations of Paragraph 16 contain conclusions oflaw and fact to which no response is required, In the event a response is deemed to be required, the averments contained herein are denied. 17, Denied. The allegations of Paragraph 17 contain conclusions of law and fact to which no response is required, In the event a response is deemed to be required, the averments contained herein are denied. By way of further response, the police report which is referred to in this allegation was forwarded to Defendant's insurance carrier via facsimile on May 6, 1999. A copy of the telecopy transmission cover sheet is attached hereto as Exhibit "B." Thus, Defendant's insurance carrier knew of this alleged basis for liability against Mr. Yentzer as early as May 6, 1999. There has been no reasonable explanation given as to why Defendant and/or his insurance carrier failed to join Mr. Yentzer as an Additional Defendant wherein the basis for his alleged liability was known to the Defendant's insurance carrier on May 6, 1999, or approximately one month after the filing of the Complaint. 18, Admitted, 19. Denied, To the contrary, Mr. Heck, through his insurance carrier, knew as early as May 6, 1999, about the alleged basis of liability against Mr. Yentzer. This is well within the 60-day period following service of the Complaint, 5 . .- -, ~- ---"-,~,- , 20. Denied, The allegations of Paragraph 20 contain conclusions of law and fact to which no response is required. In the event a response is deemed to be required, the averments contained herein are denied. 21. Denied. The allegations of Paragraph 20 contain conclusions oflaw and fact to which no response is required. In the event a response is deemed to be required, the averments contained herein are denied. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Petition to Join Jeffrey A. Yentzer as an Additional Defendant in this matter. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: ~ fl. ~~ Jo . Ninosky, Esquire Attorney I. D. No, 78000 320 Market Street P.O, Box 1268 Harrisburg, P A 171 08-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff DATE: JO/lb' /1" 31490.1 6 Exhibit A ..OUID@. L i,- I I I ' I " > ~ a\ ?= C? >-" M :-i.... ('1 ()~. ~~1 r. ().:--: <. 0- r \~j ~r; ./~- (') co :'~'4 L;: ~"'- F.~ >- I";;(P cr..1J~ U G)._ t-. 0 :~ u_ en ::> 0 '" u . BOBBI JO SHEETZ, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Y. , : NO, 99-2066 CIVIL : CIVIL ACTION - AT LAW ROBERT HECK, JR,. DEFENDANT . : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Defendant, Robert Heck, Jr., with regard to the above-captioned matter. Respectfully submitted, NEALON & GOVER By: Christopher night, Esquire Atty. 1.0. 0 58 301 Market Street - 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 '.. cn (; i' '. c;. " '.' ~ '. ' P' , ." '; . J; .) :' ,.. L <.. ~ ....J ft... , . :..) '(1) L~ . 'I." ,( , .. , :- .~ ll....W H ': ~ ~~ , :~ ,\. c'" :)1 t.' (J~ U " 10 ~ 10 0 0: z 8 .;, 0 ~ 0 IJJ ~ ~ ~ ~ < > . ~ 0 .J < 0 .. ~ ell " Z (!) . 10 ~ 0 10 u III I:i .J Kl " >- w x >- < w . 0 ill Z z ~ III Z 0 Z z 0 ~ a: >- (j w ...J ill 0 0; .. w w ~ .. S ~ .; 0 ~ ~ . < :J Z .. X III < i5 ill ~ it ~ < I: HM""to. AD1IILO' lIUU.O'I8'UILO :'ON l'jIlOJ ':lNl '1YNOUVNlIUN1.;uva.nv:lO NOI$WlI v "rton !lJ.Vn"l1'l' lo11n R. NiAooky, i!lquire Attorney I. D, No, 78000 COLDBERG. KATZMAN'" SIIIPMAN, P.C. 320 MArket SuccI P,O, Box 1268 11atri....... PA 1710&-1268 Telephone: (717) 234-4161 Allomey for Plaintiff BOBBI1O SHEETZ YENTZER 25 Rife Road Mechanicsburg. PA 17055 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW Plaintiff v. (!;;J_ ROBERT HECK, JR. 1815 Rudy Road Harrisburg, PA 17104 : NO. 11- ~061P Defendant NonCE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 NonCIA 3. On the above-referenced date and time, Plaintiff's vehicle was being operated by Jeffi'ey A. YenlZer with Plaintiff's permission. 4, It is believed and therefore averred that Defendant is an adult individual who currently resides at 1815 Rudy Road, Harrisburg, Dauphin County, Pennsylvania 17104. s. On the above-referenced date and time, Plaintiff and Mr, YenlZer were traveling eastbound on State Route 581, Lemoyne Borough, Cumberland County, Pennsylvania, in a line of traffic. 6. At the above-referenced date and time, Defendant was operating a pickup truck eastbound on State Route 581, and Defendant's vehicle was the first vehicle in the line of traffic, 7. Defendant was transporting household items in boxes in the back of his pickup truck. 8. As Defendant was traveling along State Route 581, boxes and items fell from his vehicle onto the roadway. This caused a chain reaction accident in that a vehicle owned by Robert Davis was able to stop prior to striking the boxes; however, a vehicle operated by Monica Yentzer was unable to avoid striking the Davis vehicle. Further, Plaintiff was unable to stop prior to striking the vehicle operated by Ms, YenlZer, 2 9. As a result of the incident, the Davis vehicle, the Yentzer vehicle, and Plaintiff. vehicle all sustained property damage, 10. The accident was directly and proximately caused by the negligence of the Defendant in that he: a. failed to adequately secure the boxes on his vehicle; b. failed to prevent the boxes from falling from his vehicle onto the roadway; c. was otherwise negligent under the circumstances. 11. As a direct and proximate result of Defendant's negligence, as aforesaid, Plaintiffs vehicle suffered damages in the amount of$II,551.92. 12. Plaintiff was also forced to reimburse Mr, Davis $96,69 for a rental vehicle, as well as $936.33 to repair damages to Mr. Davis' automobile. 13. Plaintiff was forced to reimburse Ms. Yentzer $844,25 for the damages caused to her vehicle, 14. Plaintiff would not have been required to reimburse Mr. Davis or Ms, Yentzer but for the negligence of Defendant as aforesaid. 3 WHEREFORE, PJaintiffdemandsjudgment the Defendant in the amount of$I3,469.47 together with costs of suit and delay damages which is an amount requiring this matter be submitted to compulsory arbitration. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: ~ If flLu~ John R. Ninosky, Esquire Attorney 1. D. No. 78000 320 Market Street P.O. BOl( 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: q / C, /19 Attomeys for Plaintiff 191'0,1 4 I :1 I ;J \r) ~ , V') "'C)~J [~. E2 0' 1: ~ "'- v. "- .. ..:~ UJR <'J 1,,'<r ~ (1';'- ..> =; .':':"<'J ~c: (.J~.s: H-- . ..L.-_J. U- P ~ ~ C)t:-, C'l::.J ~ 6,,- r- ~ :' :.-- ~ "') ~. If) UJu- 1 _~L: --:::l- --' '_i":;';":" ~"-' '0 -l~J c: -....::::, \:)-.> &.J,...T. ..lj(ij ~ r:: a.. ~qCJ... "" u.. m .;:: 0--< ":>2 '''0 r-' 0 ::J ~ 0'\ U -- d~ ~ .' BOBBI JO SHEETZ VENTZER, PLAINTIFF v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99.2066 CIVIL : CIVIL ACTION. AT LAW : JURY TRIAL DEMANDED ROBERT HECK, JR" DEFENDANT ANSWER AND NOW, comes the Defendant, Robert Heck, Jr., by and through is attomeys, NEALON & GOVER, P.C., and files the following Answer to Plaintiff's Complaint: 1. - 3. Admitted, upon information and belief. 4. Admitted in part and denied in part. It is admitted that the Defendant is an adult individual. It is denied that the Defendant resides at the stated address; by way of further answer, Defendant resides at 2014 Columbia Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 5. Admitted, upon information and belief. 6. - 7. Admitted. 8. Admitted in part and denied in part, It is admitted that at the stated time and place, one box became dislodged from the Defendant's vehicle and fell landing on the roadway. It is denied that any other items fell from the Defendant's vehicle. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph and therefore strict proof of same is demanded at time of trial. ,.. -'" .... IT, (,":. f;; t. ~~ ~5~ n \'.' . (.".) (,.1.. :: ' I... (..:' , ...~ ,,' '. l~ ".1.:3 r~; : .>- (' <::> '(f) " N l';;~ 1.J I ~,. . -. ..1, (.!': :ijrf] l,.L~ .; . -, ~~,~ a.: (:: ~ b "" ~, V'" IVt\...UO....O-tlUO.'I-tlUO.JIN111O :'ONWIl(H ':llll '1VNOUYNllUNIdJ.VlS-'l1Y 10 NOISlNQ 'f '1YtlJ1 l1'f'l!-m on III ~ III 0 z 0 '" It 0 0 ~ 0 W ~ ~ is ( > . r 0 ..J ~ < 0 .. ~ m on Z (!) . III 0 III ~ u ~ ~ -' k'J " w X >- ( W ~ 0 on Z z ~ III Z 0 Z on z 0 iii 0: ~ 6 w .J . 0 0: .. w ~ . ~ . .; 0 ~ ~ . < Z .. ~ ::J ( III 5 lJl M ir ~ < r . . ,,~ r ~..c ~~ ";,~~ );: N~ ::~ ~~:I ;,':t: " '-: ':) 'f' ~; ;~... ~t " " i~ fl' : ::~ .;, 5. Allstate's investigation indicated that it was the driver of the Plaintiff's vehicle, Jeffrey A, Yentzer, and not its insured, Mr. Heck, who is responsible for the damage to Plaintiff's vehicle. 6. Believing that his interests were being protected by his insurance carrier, Mr. Heck took no further action, 7. On or about July 1,1999, the Plaintiff filed and served upon Mr. Heck a 10 Day Notice of Intention to Seek a Default Judgment. 8. On July 6, 1999, the Allslale Insurance Company contacted the law firm of the undersigned counsel and referred Mr. Heck for defense of this case. 9. On that date, Attorney Matthew R. Gover, contacted Plaintiff's attorney and was granted an extension of time to file an Answer on behalf of Mr, Heck. 10. On July 9, 1999, the undersigned counsel entered his appearance on behalf of Mr. Heck. (Attached hereto and incorporated herein by reference as Exhibit "An is a copy of the Praecipe for entry of appearance.) 11. Also on July 9, 1999, the undersigned counsel wrote to the Plaintiff's attorney confirming our involvement in the case and that an extension to Answer had been granted. (Attached hereto and incorporated herein by reference as Exhibit "Bn is the undersigned's correspondence to the Plaintiff's attorney.) 2 ~' "'- 12, Also on July 9, 1999, the undersigned counsel wrote to Mr. Heck at his last known address regarding our involvement. (Attached hereto and incorporated herein by reference as Exhibit "C' is the undersigned's letter of July 9, 1999, to.the Defendant, Mr. Heck.) 13. After receiving no response from the Defendant, the undersigned again wrote to him on August 4, 1999, expressing the need for him to contact our firm. (Attached hereto and incorporated herein by reference as Exhibit '0' is the undersigned's letter of August 4, 1999, to the Defendant.) 14. On August 13, 1999, the Defendant contacted defense counsel indicating that he had changed addresses and had only that day received the forwarded letters of July 9, 1999, and August 4, 1999. 15. Defense counsel met with Mr. Heck on August 16, 1999, for the purpose of formulating an Answer to the Plaintiff's Complaint, which was then filed on August 19, 1999. 16. In discussing the facts of the motor vehicle accident with the Defendant during the meeting of August 16, 1999, it became apparent to the undersigned counsel that all or part of the responsibility for the damage to the Plaintiff's vehicle should be born not by the Defendant, Mr. Heck, but rather by the driver of the Plaintiff's vehicle, Jeffrey A. Yentzer. 3 17. According to Mr. Heck and to the police report, Mr. Heck was transporting some personal Items situated In boxes In the back of a pick-up when one of the boxes became dislodged, falling from the rear of the truck and landing in the roadway. The vehicle traveling immediately behind Mr. Heck's vehicle was able to bring his vehicle to a stop before striking the box. However, the operator of the Plaintiff's vehicle which had been the third vehicle behind Mr. Heck, was unable to stop before impacting the vehicle immediately in front of him. 18. Since more than 60 days had already passed since the Complaint was served upon the Defendant, the undersigned counsel contacted the Plaintiff's attomey on August 19, 1999, requesting his agreement to allow the joinder of the driver of the Plaintiff's vehicle as an Additional Defendant. Plaintiff's counsel indicated that he could not consent to the late joinder of the Additional Defendant since his client was now married to Mr. Yentzer, the potential Additional Defendant. 19. It is believed and therefore averred that a reasonable excuse exists for the delay in commencing joinder of the Additional Defendant. The Defendant, Mr. Heck, had promptly notified his insurance company of the pending lawsuit and did nothing to delay the proceedings. Through no fault of his own, Mr. Heck did not become represented by an attorney until July 6, 1999, and at that point more than 60 days following the service of the Complaint upon him had already passed. As soon as the undersigned counsel was able to speak to Mr. Heck about the case, it became apparent that an Additional Defendant would have to be joined in order to properly defend him, 4 l.'e --f r ~ B' ;:;: lD Nealon :.JGover ....t~,..,'....-JI'l!1l"'1.~f ....'~..1.,. ATTORNEYS AT LAW )01 MARKET STUET . ,- fLOOR .o.IlOX '" H.U~I~8\IRG. PA 1"'01 ''''IBUtoO fAX, 1~1':'11J..'Il' lAMES G. "'EAlON. III MAmUI!;' R, GOVER IRiAS T. PERRY CIIRISTO'HtR I. K"'IGIfT July 9,1999 Mr. Robert Heck, Jr, 1815 Rudy Road Harrisburg, PA 17104 Dear Mr. Heck: I have been asked by the Allstate Insurance Company to defend you in the civil action which has been tiled against you by Bobbi Jo Sheetz, rv1y involvement is pursuant to the terms and conditions of your insurance policy. As you are aware, a Complaint has been filed against you, Further, the attorney representing Ms. Sheetz has taken some initial steps to obtain a Judgment against you due to the fact that you have not responded to the Complaint. Although the attorney has indicated to my office that he would grant you some additional time, we must act promptly to tile an Answer to the Complaint and raise any available defenses. To do this, I need to discuss the accident with you, Upon receipt of this letter, would you please contact myself or my assistant, Sharon, to schedule an appointment to discuss this matter. Very truly yours, / I~ Christopher~. Knight NEALON & OVER CJKlslf Cc: John Jenkins - 1553412121 ,. ... ~ :; Ci' ::;: C CERTIFICATE OF SERVICE AND NOW, this 28th day of September, 1999, I hereby certify that I have served the foregoing Petition on the following by United States First Class Mail: John R. Ninosky, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 ,_., " " 10 ~ 10 0 z 0 .. 0: 0 0 It 0 w ;: ~ E ( > . ~ 0 0 .J ( . ~ ~ " z l.9 . 10 0 10 ~ u ti Kl {/) x ~ " >- w ~ ( '" ~ 0 1/1 Z Z ~ 10 Z 0 Z 1/1 Z 0 ;; c: ~ Ci w .J . 0 ~ ~ w W ~ " ~ " .; 0 ~ . ( ~ Z . ~ ~ 10 ( 5 1/1 M it ~ ( x HM"'ILD'AO"ILO'18-nltO'Jg.'~I'O ;ONi'l~OI ~Nr '1VNOUYNlIl1NI.uyJ,S.,,.,. JO N0l5WO It 'WDJ'l 1.Ins.l1'f' ):"" .. " 99-2056 CIVIl. Our appellate courts have regularly upheld Ihc refusal of lower courts to granllate joinder of additional defendnnts. In Glnbbntz v. Tenninal J'reiuht Hundlinu Co.. 386 Pa.Super. 447, 563 A.2d 151 (1989), there was an allempt to join an additional defendant approximately five and one-half monlhs after the service of the original complaint. The reason given for the delay in joinder was that the defendant used the intervening time in an attempt to settle the case. The Superior Court upheld the trial court's dismissal of the joinder complaint. In Mutual Industries Inc. v. Weinberg. supra, a petition for joinder of an additional defendant, being uncontested by the plaintiff, was granted almost seven monlhs after the filing of the complaint. The preliminary objections of the additional defendant, however, were subsequently sustained and this action was affirmed. The reason given by lhe Superior Court was that the "infonnation which prompted the appellant to seek joinder of the appellee was his (appellant's) possession at all times relevant to the calculation of the time-frame provided for under Rule 2253.,,1 In Conul v. Burk. M.D., 403 Pa.Super. 400, 589 A.2d 246 (1991) a delay of seven months was also not excused. In that case, the Superior Court concluded that the defendant could have, by the exercise of reasonable diligence, discovered the liability of the additional defendant and rejected defense counsel's explanation that part of the delay was caused by the "press of work." In this case, the defendant had actual knowledge of the involvement of the additional defendant from the moment the complaint was served. No action was taken until the defendant was served with a notice of default judgment. We are at a loss to discern good cause for the late I Pennsylvania Rute of Civil Procedure 2253 reads: "Except as provided by Rule 104 1.1 (e), [dealing with asbestos litigation] neither praecipe for a writ tohin an additional defendant nor a complaint if the joinder iscommenced by a complaint, shall be filed by the original dei,ndant or an addilinnal defendanllater than sixty days after the service 3 -- ?: :,.- l;C / ,- , ) : . , --", '. ~1_ " 0_ '; ;:.". r ,n ;, , ./ , '): I.,. :~ i ~~~ --; -, , (0) '.:J L) c.' <.)