HomeMy WebLinkAbout99-02579 (2)
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III. Principal issues for the JUry
a) Negligence of Defendants
b) Negligence of Mr. Green
c) Percentage of comparative negligence if both are found to be
negligent
IV. Unusual L.eClallssues
None.
V. Witnesses
a) Peggy Burkett
b) Robert Greene
c) Sergeant Jay Stoner, Mechanicsburg Police Department
d) Tom Gable, Mechanicsburg Shade Tree Commission
e) Don Walton, Mechanicsburg Shade Tree Commission
f) Sue Starr, Mechanicsburg Shade Tree Commission
g) Sean Simonton, Mechanicsburg Code Enforcement Officer
h) Dan Emanuel, Drivekore, Inc.
i) Bill Ackley, Drivekore, Inc.
i) Ray Wenger, former manager for Auto Trim Design
k) Scott Eppley, Mechanicsburg Borough Manager
I) Rodney Whitcomb, former Mechanicsburg Police Chief
m) William Sunday, Esquire, fonner Mechanicsburg Borough Solicitor
VI. Exhibits
a) Photos of vehicle and tree
b) Copy of Mechanicsburg Borough Ordinance
2
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VII. Settlement NOClotJations
Plaintiff has made a demand of $20,000.00. Defendants have offered $2,500.00.
Dated: 2/18/2003
Respectfully submitted,
WIX, WENGER & WEIDNER
By ~ eJ'^"0....Jt L.t",
Richard H. Wix, Esq., ID# 07274
Attomeys for Plaintiff
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
3
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ROLF E. KROLL, ESQUIRE
Pa. Sup,ame Court 1.0. No. 47243
MARGOLIS EDELSTEIN
Post Office Box 932
Harrisburg, Pennsylvania 1710Soll932
Telephone: [7171975-8114
Fax: [7171975-8124
E.mall: .k.oll@.margoledolsteln.com
Altorney 10' Delend.nt:
Merlo L. Smysor, Jr. end
Kelley S. Smy::o,
PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
V.
ROBERT E. GREENE,
Additional Defendant
JURY TRIAL DEMANDED
PRETRIAL MEMORANDUM OF DEFENDANTS.
MERLE L. SMYSER. JR. AND KELLY S. SMYSER,
PURSUANT TO CUMBERLAND COUNTY RULE OF PROCEDURE No. 212-4
I. STATEMENT OF FACTS
A. LIABILITY
On May 2, 1997, at approximately 2:55 p.m., Additional Defendant, Robert E. Greene
("Additional Defendant"), was operating a 1982 Kings Highway Motor Home owned by
Plaintiff, Peggy L. Burkett ("Plaintiff'), in Meehanicsburg, Pennsylvania. As Mr. Grcene was
driving west on Allen Street, Plaintiffs motor home was allegedly damaged by tree limbs from
the property of Defendants, Merle L. Smyser, Jr. and Kclly S. Smyser ("Defendants"), which
wcre allegedly hanging over thc roadway. Although Additional Defendant had driven that same
roadway in Plaintiffs motor homc on numerous occasions prior without incident. on the day in
question hc swcrved into the trces to avoid a collision with an oncoming ,.chicIc. Thcre was :1
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minor collision between the oncoming vehiele and the motor home, but the driver of the other
vehiele never stopped and WllS never idcntified.
B. DAMAGES
Plaintiff alleges that the damages to her motor home totaled $19,960.00.
II. ISSUES PRESENTED
A. LIABILITY
I. Were tree limbs extending from Defendants' property over the roadway in
violation ofloeal or state Jaw, or in an otherwise negligent manner?
2. Was the Additional Defendant operating Plaintiffs Motor Home in a negligent
manner?
3. If Defendants and/or Additional Defendant are found liable to Plaintiff for her
damages, the Court must alloeate such liability between the Defendants and the Additional
Defendant in eonfomlity with the Unifol1l1 Contribution Among Joint Tortfeasors Aet and
Comparative Negligence Ael.
B. DAMAGES
I. Plaintiff asserts damages in the amount ofS 19,960.00.
2. If Defendants and/or Additional Defendant is found liablc to Plaintiff for her
damages, the Court must allocate sueh liability between the Defendants and the Additional
Defendant in confonnity with the Unifonn Contribution Among Joint Tortfeasors Aet and
Comparative Negligence Aet.
2
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III. ISSUES REGARDING ADMISSIBILITY OF EVIDENCE
None.
IV.
WITNESSES
~
I. Plaintiff, Peggy L. Burkett;
2. Additional Defendant, Roberl E. Greene;
3. Defendants, Merle L. Smyser, Jr, and Kelly S. Smyser;
4. Any witnesses listed by the other parties in their pretrial memoranda;
5. Any witnesses neeessary to rebut Plaintiffs ease; and
6. Defendants reserve the right to sllpplement this list after reviewing the
Plaintiff's witness list.
V. EXHIBITS
I. Deposition transeripts of witnesses;
2. Photographs;
3. Diagram of seene;
4. Repair bills;
5. Stipulation to add Additional defendant, Robert E. Greene, to Caption, and to
apportion any liability in confonnily with the Unifonn Contribution Among Joint Tortfeasors
Act and Comparative Negligence Act;
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6. Any exhibits listed by the other parties in their pretriall11emoranda; and
7. Defendnnts reserve the right to supplel11entthis list nller reviewing the Plnintiff's
exhibit list.
Respectfully SUblllilted,
VI. STATUS OF SETTtEMENT NEGOTIATION~
Defendants have offered $2,500 in seltlement of Plaintiffs claims; Plaintiffhns made no
counter proposal to date.
'I
Date: ~
/ /
It;/ Q3
I
I
MARGOUl EDELSTEIN
(/!., JitMr>jl /~I)
BY:-L./)lL/~/
R()lfE. Kroll;Esqulre
Attorney 1.9:#47243
Post Offiee Box 932
Harrisburg, PA 17108-0932
(717) 975-81 14
Altorney for Defendant
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2. state the name and current address of all persons who had
an ownership interest of 100 North Arch street, Mechanicsburg,
Pennsylvania as of May 2, 1997.
5. Personal information. State:
(a) Your full name;
(b) Each other name, if any, which you have used or by
which you have been known;
(c) The name of your spouse at the time of the accident
and the date and place of your marriage to such
spouse;
(d) The address of your present residence and the
address of each other r.esidence which you have had
during the past five years;
(e) Your present occupation and the name and address of
your employer;
(f) Date of your birth;
(g) Your Social Security number;
(h) Your miliary service and positions held, if any;
and
(i) The schools you have attended and the degrees or
certificates awarded, if any.
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6. If you are covered by any type of insurance, including
any excess or umbrella insurance, that might be applicable to the
incident in this matter, state the following with respect to each
such policy:
(c)
(d)
(e)
(a)
The name of the insurance carrier which issued the
policy;
The named insured under each policy and the policy
number of each policy;
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(b)
The type(s) and effective date(s) of each policy;
The amount of coverage provided for injury to each
person, for each occurrence, and in the aggregate
for each policy; and
Each exclusion, if any, in the policy which is
applicable to any claim thereunder and any reasons,
if any, why you or the carrier claim the exclusion
is applicable.
9. If you know of the existence of any photographs, motion
pictures, video recordings, maps, diagrams, or models relevant to
the incident, state:
(a) The nature or type of such item;
(b) The date when such item was made;
(c) The identity of the person that prepared or made
each item; and
(d) The subject that each item represents o~ portrays.
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12. Identify each expert you intend to call as a witness at
the trial of this matter, and for each expert state:
(a) The subject mater about which the expert is
expected to testify; and
(b) The substance of the facts and opinions to which
the expert is expected to testify and a summary of
the grounds for each opinion. (You may file as
your answer to this interrogatory the report of the
expert or have the interrogatory answered by your
expert. )
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14. If you intend to use any book, magazine, or other such
writing at trial, state:
(a) The name of the writing;
(b) The author of the writing;
(c) The publisher of the writing;
(d) The date of publication of the writing; and
(e) The identity of the custodian of the writing.
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15. If you intend to use any admission(s)
trial, identify such admissions(s).
of a party at
WIX, WENGER & WEIDNER
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BY:~~
-Glrard E. Rlckards, Esqulre
I. D. #58867
4705 Duke street
Harrisburg, PA 17109
(717) 652-8455
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PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1999-2579 civil
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v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER OF COURT
AND NOW, this ~ 1 ~ of ~duZ1.J , 2001 in
consideration of the foregoing petition, ~~~.~~~
Esq., .~ O~d4(J, Esq., and ~xJ~L
Esq. are appointed arbitrators in the above-captioned case.
f? J.
CERTIFICATE OF SERVICE
AND NOW, this 19th day of September, 2001, I, Richard H.
Wix, Esquire, of the firm of wix, Wenger & Weidner, attorneys for
Plaintiff, hereby certify that I served the within Petition for
Appointment of Arbitrators this date by depositing a copy of same
in the united States mail, postage prepaid, in Harrisburg,
Pennsylvania, addressed as follows:
Rolf E. Kroll, Esquire
Margolis Edelstein
P.O. Box 932
Harrisburg, PA 17108-0932
Re:
WIX, WENGER & WEIDNER
....--~ I 'I.
By f"\,lc.AL't/.(' ,II. U-v'
Richard H. Wix, Esq., I.D. #07274
Attorneys for Pl.aintiff
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652--8455
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PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE TO DEFEND
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 THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE
A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU MAY GET LEGAL HELP.
4:til.
COURY A~hiNi~~~~uA
Fleer, Cumberland county_r~
Carlisle, PA 17013
(717) JJi-cifl89
NOTICrA~3 (& (.,
I I __te &V A-j55<<UtFcY\
2. L ~-r?r /Wl"-
Or I - g 00- 1'10 ----q (()~
LE RAN DEMANDADO A USTED EN LA CORTE. si usted quiere defenderse de
estas demandas expuestas en las paginas siguientes, usted tiene viente (20)
dias de plaza al partir de la fecha de la demanda y la notificacion. Usted
debe presentar una apariencia escrita a en persona a par abogada y archivar
en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en
contra de su persona. Sea avisado que si usted no se defiende, la corte
tomara medidas y puede entrar una orden contra usted sin previo aviso 0
notificacion y por cualquier queja 0 alivio que es pedido en la peticion de
demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0
SI NO TIENE EL OINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0
LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO
PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
COURT ADMINISTRATOR
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiff, Peggy L. Burkett, is an adult individual
residing at P. o. Box 295, New Kingstown, Pennsylvania 17072-0295.
2. Defendants, Merle L. Smyser, Jr. and Kelly S. Smyser, are
adult individuals residing at 100 North Arch Street, Mechanicsburg,
Cumberland County, Pennsylvania 17055.
J. At all times relevant. hereto, Defendants were the owners
and occupiers of a property situate at 100 North Arch Street,
Mechanicsburg, Pennsylvania 17055.
4. At all times relevant hereto, the Plaintiff was the owner
of a 1982 Kings Highway Motor Home, Pennsylvania registration
HFJ7564.
5. On May 2, 1997 at approximately 2:55 p.m., Robert E.
Greene was lawfully operating the Plaintiff's motor home west on
Allen Street near its intersection with North Arch Street in
Mcchanicsburg, pennsylvania.
6. As Robert E. Greene was driving the motor home west on
Allen street, the motor home was damaged by tree limbs extending
from the Defendants' property over the roadway.
7. The foregoing accident and all of the damages set forth
herein sustained by the Plaintiff were the result of the
negligence, carelessness or reckless of Defedants, Merle L. smyser,
Jr. and Kelly S. smyser, in that they:
a) failed to properly trim the trees on their property so
that they would not extend over the roadway at a height
less than eight feet, in violation of the local
ordinances and state law;
b) were otherwise negligent;
8. As a direct and proximate result of the negligence,
carelessness and recklessness of the Defendants, the Plaintiff I
Peggy L. Burkett, sustained property damage to her vehicle in the
amount of Nineteen Thousand, Nine Hundred Sixty and 00/100
($19,960.00) Dollars, and a claim is made therefor.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable Court to enter judgment against Defendant, Merle L.
Smyser, Jr. and Kelly s. Smyser, in the amount of Twenty Thousand,
Nine Hundred sixty and 00/100 ($20,960.00) Dollars, plus interest,
costs of suit, attorneys' fees, and such other relief as the Court
2
deems just, and thereby requiring submission to compulsory
arbitration.
Respectfully submitted,
WIX, WENGER & WEIDNER
~.
rard E. Rickards, Esqu1re
LD. #58867
4705 Duke street
Harrisburg, PA 17109
(717) 652-8455
3
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VERIFICATION
I, Peggy L. Burkett, am the Plaintiff in this action, and I
verify that the facts contained in the foregoing Complaint are true
and correct to the best of my knowledge, information and belief.
The undersigned understands that her statements therein are made
subject to the penalties of 18 Pa. C.S.A. section 4904 relating to
unsworn falsification to authorities.
. g~AL;;y
Burkett
r;//9jf'1
Date
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PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99-2579 CIVIL
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMMONWEALTH OF PENNSYLVANIA )
) ss
COUNTY OF DAUPHIN )
Personally appeared before me, a Notary Public in and for said
Commonwealth and County, Girard E. Rickards, Esquire, of the firm
of wix, Wenger & Weidner, attorneys for the Plaintiff, who being
duly sworn according to law, deposes and says that a Notice of
Default JUdgment was mailed to Merle L. Smyser, Jr., Defendant, in
accordance with Pennsylvania Rules of civil Procedure 237.1 and
1037.
Sworn to and subscribed
before me this :> r;:\~ day
of '--~~
, 1999.
"\'\." <>--,~'- \J.
Notary Public
Hy Commission
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Expires:
L' Notanal Seal
Maleia A. Chismar, Notary Public
Lower P~Jl.IO~ 1'w ., DAuphln COunly
_ M COM1mIUIOn ~Dlr(ll; .hr. 0.2001
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CERTIFICATE OF SERVICE
AND NOW, this 12th day of July, 1999, I, Girard E. Rickards,
Esquire, of the firm of Wix, Wenger & Weidner, hereby certify that
I have served a copy of the foregoing Notice of Default on this
date, by depositing a copy of the same in the United states mail,
postage prepaid, Harrisburg, Pennsylvania addressed as follows:
Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
By:
---
w~ . WEI~
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-Glrard E. R1CKarcts: Esqulre
ID! 58867
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
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PEGGY L. BURKETT,
plaintiff
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 99-2579 CIVIL
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PETITION TO MAKE RULE ABSOLUTE
1. This action arises from an incident that occurred on May
6, 1997 wherein the plaintiff sustained damages to her motor home
as a result of tree limbs extending over property owned by Merle L.
smyser, Jr. and Kelly S. Smyser.
2. Default judgment was entered against Defendant, Merle L.
smyser, Jr. on July 27, 1999.
3. As of this date, the plaintiff has been unable to locate
Defendant Kelly S. smyser for service.
4. On July 29, 1999, the plaintiff served upon Defendant,
Merle L. smyser, Jr., a set of Interrogatories requesting, inter
alia, the present address of Kelly S. smyser.
5. On or about October 25, 1999, plaintiff filed a Motion to
Compel the Defendant, Merle L. Smyser, Jr., to answer plaintiff's
Interrogatories.
6. On October 28, 1999, the Honorable Kevin A. Hess issued
a Rule to Show Cause why the Plaintiff's Motion to compel Di.scovery
should not be granted. A true and correct copy of the Rule dated
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October 28, 1999 is attached hereto as Exhibit "A" and incorporated
herein by reference.
7. On November 3, 1999, Plaintiff's attorney served upon
Defendant, Merle L. Smyser, Jr. a copy of the Rule to Show Cause
dated October 28, 1999 via first class mail.
8. As of this date, Defendant, Merle L. Smyser, Jr., has not
responded to the Plaintiff's Interrogatories, the Plaintiff's
Motion to Compel Discovery, nor the Rule to Show Cause.
9. Plaintiff, Peggy L. Burkett, respectfully requests Your
Honorable Court to enter an order compelling Defendant, Merle L.
Smyser, Jr., to answer the Plaintiff's Interrogatories by a date
certain or suffer sanctions pursuant to Pa. R.C.P. 4019.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable Court to enter an Order compelling Defendant, Merle
L. Smyser, Jr., to answer the Plaintiff's Interrogatories by a date
certain or suffer sanctions pursuant to Pa. R.C.P. 4019.
Respectfully submitted,
WIX, WENGER.
EIDNER
Esqu1re
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
2
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PEGGY L. BURKETT,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LA1~
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
AND NON, this
,~'8-;t:.( day of
(Q~~v
1999, upon
consideration of the Plaintiff's l1otion to Compel Discovery, a Rule
is hereby issued on all parties to show cause \"hy said l1otion
should not be granted.
Rule returnable c:20 days after service.
BY THE COURT:
IS/ '-M<~, a )./.,.",AI
J.
--
TRUE C0PY FROM RECORD
In Tc:limu'lv ' ;, I' ,~f, I h ,J', urto $':1 my hand
and t/-'e ~(61 0f ,s'd (0L'iI <:1 Culisle, Pa.
This ..<xp.~ day of q(P{t, , 19q9..7.
1.""."...ft,,~h1t{'p~~!r~~I.../_'
Exhibit "A"
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6. On November 3, 1999, Plaintiff's attorney served upon
Defendant, Merle L. Smyser, Jr., a copy of the RUle to Show Cause
via first-class mail.
7. Defendant, Merle L. Smyser, Jr., never responded to the
aforementioned Rule to Show Cause.
8. On December 2, 1999, the Plaintiff filed a Petition to
Make RUle Absolute.
9. A Rule Absolute was issued on December 7, 1999 by the
Honorable Kevin A. Hess, requiring Defendant, Merle L. Smyser, Jr.,
to serve Answers to the Plaintiff's Interrogatories within fifteen
(15) days of service or suffer sanctions pursuant to Pa. R.C.p.
4019. A true and correct copy of the Rule Absolute is attached
hereto as Exhibit "A" and incorporated herein by reference.
10. On December 10, 1999, Plaintiff's counsel served
Defendant, Merle L. Smyser, Jr., with the RUle Absolute via first-
class mail.
11. As of this date, Defendant, Merle L. Smyser, Jr., has
failed to respond to the RUle Absolute, the Rule to Show Cause and
the Plaintiff's Interrogatories.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable Court to enter sanctions agai.nst Defendant, Merle L.
Smyser, Jr., pursuant to Pa. R,C.P. 4019 entering judgment agai.nst
Defendant, Merle L. Smyser, Jr. in the amount of Twenty Thousand
2
Exhibit A
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CERTIFICATE OF SERVICE
AND NOW, this ~ day of January, I, Girard E. Rickards,
Esquire, of the firm of Wix, Wenger & Weidner, hereby certify that
I have served a copy of Plaintiff's Motion for Discovery Sanctions
Pursuant to Pa. R.C.p. 4019 on this date, by depositing a copy of
the same in the United States mail, postage prepaid, in Harrisburg,
Pennsylvania addressed as follows:
Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
By:
WEIDNER
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Rickards, Esquire
irard E.
ID# 58867
4705 Duke Street
Harrisburg, FA
(717) 652-8455
17109-3099
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CERTIFICATE OF SERVICE
!, Jessiea Bates, an authorized representative of Margolis Edelstein, hereby eertify that I have
servcd a true and correct copy of the foregoing doeument upor. all counsel and parties of record this 51h
day of June, 2000, by pJaeing the samc in the United States First Class Mail, postage prepaid, at Camp
Hill, Pennsylvania, address cd as follows:
Girard E. Riekards, Esquire
Wix, Wenger & Weidner
4705 Dukc Street
Harrisburg, PAl 71 09
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ROLF E. KROLL, ESQUIRE
I'u. SUl"ellle Cou,tl.l>. No. 47243
MARGOLIS EDELSTEIN
J'o,t Ornee lIox 932
Hurrl,burg,I'enns)'lvunlu 17t08-0932
TeleJlhone:
Fux:
~:-llIull:
17171975-8114
17171 975-8124
rkroll(ivllIurcollsedelsteln.colll
Allornc)' ror:
I>EI'ENIlANTS
PEGGY L. BURKETT,
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. 99-2579 CIVIL
MERLE E. SMYSER, JR" and
KELLY S. SMYSER,
CIVIL ACTION - LAW
Dcfcndants
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Peggy L. Burkett, Plaintiff
elo Girard Rickards, Esquire
4705 Duke Street
Harrisburg, PA 17109
YOU ARE HEREBY NOTIFIED to plead to the encloscd NEW MATTER within
twenty (20) days of serviee hereol~ or a default judgment may be entered against you.
Date: 1W.llhO 9 ,2001
MARG 01.1;9, ELSTE,-IN~' ~
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By:--,-_' ~ ,[I
Ro1f E. Kro squirc
Attorney \.D, #47243
Post Officc Box 932
Harrishurg. P A 17108-0932
(717) 975-8114
Attorney for Defendants
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VERIFICATION
I, Merle L. Smyser, have read the foregoing Answer with New Matter whieh has been
drafted by my eounsel. The faetual statemenls eontained therein are known by me lo be true and
eorreet to the best of my knowledge, infonnation and belief.
This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Seetion
4904, relating to unswom falsifieations to authorities, whieh provides that, if I knowingly make
false averments, I may be subjeet to criminal penalties.
Date: I. \ 0,
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Merle . Smyser I
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
PEGGY L. BURKETT,
plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Merle L. Smyser, Jr. and Kelly S. Smyser
c/o Rolf E. Kroll, Esquire
MARGoLIS EDELSTEIN
P. O. Box 932
Harrisburg, PA 17108-0932
YOU ARE HEREBY NOTIFIED to plead to the enclosed New Matter
within twenty (20) days from service hereof or a default judgment
will be entered against you.
Respectfully submitted,
WIX, WENGER & WEIDNER
DATE: ,:j-I'-I-OI
BY: . A") ~'-.:J.~ -j{. Lv LY
Richard H. wix, Esquire
1.D. #07274
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
, ' ~','. , .: '," ',: ". '. '. . . .' " ',',' , '. I 'r. .' " '. -' .. . . ' . ' .
any judgment.
12. A review of the docket at any time after February 10,
2000 would have shown that judgment had been entered in favor of
the plaintiff and against the Defendant. Therefore, a petition to
Open filed more than one year after the judgment is entered is not
timely.
WHEREFORE, Plaintiff requests Your Honorable Court to dismiss
Defendants' petition to open JUdgment.
Respectfully submitted,
WIX, WENGER & WEIDNER
.----, , .
By ~~{., it". W.vy:.,
Richard H. Wix, 1.0. No. 07274
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
. " . \ .' ',' ,.' I, ,,' .' . .. . 1 "', , '; , ' " I' ,.
CERTIFICATE OF SERVICE
AND NOW, this 14th day of February, 2001, I, Richard H. Wix,
Esquire, of the firm of Wix, Wenger & Weidner, hereby certi.fy that
I have served a copy of Plaintiff's Answer to Petition to Open
JUdgment on this date, by depositing a copy of the same in the
United states mail, postage prepaid, in HarriSburg, Pennsylvania
addressed as follows:
Rolf E. Kroll, Esquire
MARGOLIS EDELSTEIN
P. O. Box 932
HarriSburg, PA 17108-0932
WIX, WENGER & WEIDNER
By:
~~~~11. WMi
Richard H. W1X, Esquite
I.D. #07274
4705 Duke Street
HarriSburg, PA 17109-3099
(717) 652-8455
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PEGGY L. BURKETT,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
PI~intiff
v.
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 2001, upon consideration of the
Petition tt) Open Judgment, it is NOW AND HEREBY ORDERED that judgment is open and the
parties may proceed with discovery.
Am1Z f1\'L
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BY THE COURT:
J.
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of his intention to enter a defense to Plaintifrs claims. No communication was made to
Defendants' counsel by Plaintifrs counsel despite two letters being written to Plaintifrs counsel
pertaining to the filing of an Answer. True and correct copies of the two letters in question are
attached hereto as Exhibits A and B respectfully.
5. Defense counsel's actual first notice of the Default Judgment came yesterday,
February 12, 2001, upon a phone call from Plaintiff's counsel. After learning of the Default
Judgment, defense counsel promptly filed the instant Petition.
6. It is believed and therefore averred that a valid defense exists to this claim. This
case arises from damage to mobile home that occurred when Plaintiff drove her vehicle into
Defendants' trees. The allegation is that the tree limbs were overhanging too low. However,
based upon the information in the file, this appears to be a defensible issue as Defendant believes
and avers that the location of the tree limbs were static and the mobile home was, by definition,
mobile.
7. Defendants are likewise aware that there must be a reasonable excuse for the
delay. Mr. Smyser has been interviewed. He asserts that he was advised by the process server
that he was being sued and acknowledges receipt of the Writ of Summons. However, the process
server did not know why he was being served, but indicated additional documents would be
forthcoming. Mr. Smyser indicates that no additional documents were ever received by him and
accordingly, no contact with an attorney or insurance agent was made. An original Affidavit
from Mr. Smyser, swearing to the above facts is attached hereto as Exhibit "C."
8. The undersigned defense counsel is acutely aware that timeliness of the Petition is
important and that a review of the dockct would have revealed the Default Judgment. However,
upon actual notice of the Default Judgment, the undersib'lled has acted promptly to bring it to the
Court's attention.
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PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
v.
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
CIVIL ACTION - LA W
Defendants
JURY TRIAL DEMANDED
I
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ORDER
AND NOW, this _ day of
, 200 I, upon eonsideration of the
Petition to Open Judgment, it is NOW AND HEREBY ORDERED that judgment is open and the
parties may proceed with discovery.
BY THE COURT:
J.
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Peggy L. Burkett
In the Court of Common Pleas of
Appellant
CUMBERLI\ND COUNTY, PENNSYLVI\NIA
vs.
No. 99-2579
Merle L. Smyser, Jr. and
Kelly S. Smyser
In __Civil I\ction - Law
Appellee
NOTICE OF APPEAL
FROM AWARD OF !lOARD OF ARIlITRATORS
TO THE PROTHONOTARY:
Notice i.s gi.ven L1l11t .._I':~~.'1.L....!!.!....Jjllrkr>U:, I\rmcllant
appeals from
the award of th(! bonrd of arbitrutol"ll entered in this case on
2/21/2002
~
A jury trial is demanded. (If not checked, jury trial
is waived.
I hereby certify that:
o the compensution of the arbitrators has been paid, or
D application hUll been mude for pennillsion to proceed in
forma pauperiH.
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J) (( I~tt.t'. ~ L,J.,x'
Appellant or Attorney for Appellant
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PEGGY L. BURKETT
v
MERLE L. SMYSER, JR. AND KELLY S.
SMYSER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99-2579 CIVIL TERM
pRDER OF COURT
AND NOW, August 13,2002, counsel having failed to call thc above easc for
trial, the case is stricken from the Septembcr 9, 2002 trial ternl. Counscl is directed to relist the
ease when ready.
Richard H. Wix, Esquirc
For the Plaintiff
RolfE. Kroll, Esquire
For thc Defendant
Court Administrator
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PEGGY L. BURKETT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-2579 CIVIL
CIVIL ACTION - LA W
vs.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendants
JURY TRlAL DEMANDED
IN RE: PRETRlAL CONFERENCE
Present at a pretrial conferenee held February 19, 2003, werc Richard Wix, Esquire,
attorney for the plaintiff, and Rolf Kroll, Esquire, attorney for the defendants.
TIlis is an action for damages sustained to the plaintifrs motor home when it struck a tree
that was growing ovcr the roadway in the borough of Mechanics burg. Plaintiff c,ontends that thc
homeowners, the Smysers, failed to keep the tree branches trimmed to a height of fourtecn feet
as required by an ordinance in the borough of Meehanicsburg.
The parties have stipulated to the amount of damages. They have also stipulated that the
jury should resolve thl.' issue of comparative negligence as between the defendants and the
operator of the motor home, Mr. Green, as though he were a party to the lawsuit.
There may be some room to negotiate this case. In the event that it is not resolved, the
I
I
I
,
I
trial should be of no more than one day's duration.
February 19, 2003
. Ad-
vRichard II. Wix, Esquire
For the Plaintiff
vRolf E. Kroll, Esquire
For thl.' Ddcndallls
)
RJe>
C):;).-/ q -03
Court Administrator
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PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
NOTICE TO DEFEND
YOU RAVE 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 THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT RAVE
A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU MAY GET LEGAL HELP.
4~, cumberland County~
Carlisle, PA 17013 ~ ~
LE HAN DEMANDADO A USTED EN LA CORTE. si usted quiere defenderse de
estas demandas expuestas en las paginas siguientes, usted tiene viente (20)
dias de plazo al partir de la fecha de la demanda y la notificacion, usted
debe presentar una apariencia escrita o en persona o por abogado y archivar
en la corte en forma escrita sue defensas o sue objeciones a las demandas en
contra de su persona. Sea avisado que si usted no se defiende, la corte
entrar una orden contra usted sin previo aviso o
tomara medidas Y pued~ ..... ~.~ ~ue es ~edido en la peticion de
notificacion Y por c~a±qul~e~U~]i~Jo~V~s~ propi~dades o otros derechos
demanda. Usted pue~e per
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO iNMEDIATAMENTE- SI NO TIENE ABOGADO 0
SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0
LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO
PARA AVERIGUA/~ DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
COURT ADMINISTRATOR
4th Floor, Cumberland county courthouse
Carlisle, PA 17013
(717) 240-6200
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
CO~PL~II~
1. Plaintiff, Peggy L. Burkett, is an adult individual
residing at P. O. Box 295, New Kingstown, Pennsylvania 17072-0295.
2. Defendants, Merle L. Smyser, Jr. and Kelly S. Smyser, are
adult individuals residing at 100 North Arch Street, Mechanicsburg,
cumberland county, Pennsylvania 17055.
3. At all times relevant hereto, Defendants were the owners
and occupiers of a property situate at 100 North Arch street,
Mechanicsburg, Pennsylvania 17055.
4. At all times relevant hereto, the plaintiff was the owner
of a 1982 Kings Highway Motor Home, Pennsylvania registration
HF37564. Robert E.
5. On May 2, 1997 at approximately 2:55 p.m.,
Greene was lawfully operating the Plaintiff's motor home west on
Allen street near its intersection with North Arch street in
Mechanicsburg, Pennsylvania-
6. As Robert E. Greene was driving the motor home west on
Allen street, the motor home was damaged by tree limbs extending
from the Defendants' property over the roadway.
7. The foregoing accident and all of the damages set forth
herein sustained by the Plaintiff were the result of the
negligence, carelessness or reckless of Defedants, Merle L. Smyser,
Jr. and Kelly S. Smyser, in that they:
a) failed to properly trim the trees on their property so
that they would not extend over the roadway at a height
less than eight feet, in violation of the local
ordinances and state law;
b) were otherwise negligent;
8. As a direct and proximate result of the negligence,
carelessness and recklessness of the Defendants, the Plaintiff,
Peggy L. Burkett, sustained property damage to her vehicle in the
amount of Nineteen Thousand, Nine Hundred sixty and 00/100
($19,960.00) Dollars, and a claim is made therefor.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable court to enter judgment against Defendant, Merle L.
Smyser, Jr. and Kelly S. Smyser, in the amount of Twenty Thousand,
Nine Hundred sixty and 00/100 ($20,960.00) Dollars, plus interest,
costs of suit, attorneys' fees, and such other relief as the court
deems just, and thereby requiring submission to compulsory
arbitration.
Respectfully submitted,
WIX, WENGER & WEIDNER
By.'~ E ~' Rickards, Esqulr
I.D. #58867
4705 Duke street
Harrisburg, PA 17109
(717) 652-8455
VERIFICATION
I, Peggy L. Burkett, am the Plaintiff in this action, and I
verify that the facts contained in the foregoing Complaint are true
and correct to the best of my knowledge, information and belief.
The undersigned understands that her statements therein are made
subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to
unsworn falsification to authorities.
Pegged. Burke~t
Date/
AND NOW, this ~?- day of June, 1999, I, Girard E. Rickards,
Esquire, of the firm of wix, wenger & weidner, hereby certify that
I have served a copy of the foregoing complaint on this date, by
depositing a copy of the same in the united states mail, postage
prepaid, in Harrisburg, Pennsylvania addressed as folloWS:
Merle L. Smyser, Jr.
Kelly S. Smyser
100 North Arch street
Mechanicsburg, PA 17055
By: ~Esqu~re
ID# 58867
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
PEGGY L. BURKETT
212 west Allen Street
Mechanicsburg, PA
IN THE COURT OF COI~N PLEAS
CUMBERLAND COUNTY, PENNSYLVAN I A
Civil Action -' (x) Law
( ) Equity
: MERLE L. SMYSER, JR. and
: KELLY S. SMYSER
17055 : 100 North Arch Street
:
Mechanicsburg, PA 17055
:
:
:
:
versus
:
:
:
:
:
:
:
:
Plaintiff(s) &
Address(es)
Defendant(s) &
Address(es)
PRAECIPE FOR WRIT OF SUI~IONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the above-captioned action.
x Writ of Summons shall be issued and forwarded to ( )Attorney ( )Sheriff
Girard E. Rickards~ Esquire
Wix~ Wenger & Weidner
4705 Duke Street
Harrisbur~ PA 17109-3099
(717) 652-8455
Names/Address/ Telephon No.
of Attorney
'S~ignature of Attorney
Supreme Court tD No. 58867
Date: April 28~ 1999
WR I T OF' SUI,~4ONS
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN
ACTION AGAINST YOU.
Date:
p~o~rl~c~otary
) Check here if reverse is issued fo~Q]~dditional
information
PROTHON. - 55
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-02579 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BURKETT PEGGY L
VS.
SMYSER MERLE L JR ET AL
KENNETH GOSSERT , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within WRIT OF SUMMONS was served
upon SMYSER MERLE L JR the
defendant, at 14:40 HOURS, on the 18th day of May
1999 at 4925 OLD GETTYSBURG ROAD
MECHANICSBURG, PA 17055
,CUMBERLAND
County, Pennsylvania, by handing to MERLE L. SMYSER, JR
a true and attested copy of the WRIT OF SUMMONS
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 6.20
Affidavit .00
Surcharge 8.00
Sworn and subscribed to before me
this ~--' day
ff t ~roEnonoEary,
So answers:
$32.z0 WIX, WENGER & WEIDNER
0S/18/1999
SHERIFF'S RETURN - NOT FOUND
CA~E NO': 1999-02579 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BURKETT PEGGY L
VS.
SMYSER MERLE L JR ET AL
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: SMYSER KELLY S
but was unable to locate Her in his bailiwick. He therefore returns
the WRIT OF SUMMONS
NOT FOUND , as to the within named defendant
SMYSER KRLI,Y S
DEFT. MOVED LEFT NO FORWARDING ADDRESS WITH P.O.
COULD NOT CONTACT ATTORNEY PRIOR TO EXPIRATION.
Sheriff's Costs:
Docketing
Not Found Return
Affidavit
Surcharge
So answers:
6.00
5.00
.00
8.00 ~. Thomas ~iine, ~heriff
$X-gc-g~wIX, WENGER & WEIDNER
05/26/1999
Sworn and subscribed to before me
this ~&~ day of ~
FroEnononam~I; ~ ;
IN THE COURT OF COl,t~3N PLEAS
CUMBERLAND COUNTY, PENNSYLVAN IA
Civil Action - (x) Law
( ) Equity
PEGGY L. BURKETT
212 West Allen Street
Mechanicsburg, PA
17055
Plaintiff(s) &
Address(es)
:
:
:
:
:
:
:
:
versus
:
:
:
:
:
:
:
:
MERLE L. SMYSER, JR. and
KELLY S, SMYSER
100 North Arch Street
Mechanicsburg, PA 17055
PRAEC I PE FOR WR I T OF SUI~ONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the above-captioned action.
× Writ of Summons shall be issued and forwarded to ( )Attorney ( )Sheriff
Girard E. Rickardsr Esquire
Wix~ Wenger & Weidner
4705 Duke Street
Harrisburgr PA 17109-3099
(717) 652-8455
Names/Address/ Telephon No.
of Attorney
'~ignature of Attorney
Supreme Court ID No. 58867
Date: April 28~ 1999
WRIT OF' SUIVI~ONS
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN
Date: / b d~ ,,~,-,~
( ) Check here if reverse is issued for additional information v
PROTHON. - 55
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
COMMONWEALTH OF PENNSYLVANIA )
) ss
COUNTY OF DAUPHIN )
Personally appeared before me, a Notary Public in and for said
Commonwealth and County, Girard E. Rickards, Esquire, of the firm
of Wix, Wenger & Weidner, attorneys for the Plaintiff, who being
duly sworn according to law, deposes and says that a Notice of
Default Judgment was mailed to Merle L. Smyser, Jr., Defendant, in
accordance with Pennsylvania Rules of Civil Procedure 237.1 and
1037.
Sworn to and subscribed
before me this ~% day
of '~-~ %,%
~ , 1999.
oLary Public
My Commission Expires:
~C~rard E. ~ickards, Esquire
Notarial Seal I
Mama A, Chismar, Notary Pt blic [
Lower Paxto. TWD Oa~4,* r '"'- · '
IIIIIIIIIIII]llllllllllllllllllllllllllllllllllllllllllllllllllll IIIIIIIIIIBIIIIIIIIIIIIIII Ii II , I ~1 II II ~11111 lull II IIIII III II IIII :
,(
PEGGY L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIP_____~E
TO THE PROTHONOTARY:
Please enter default judgment against Defendant, Merle L.
Smyser, Jr. for failure to respond to the Complaint. Damages will
be assessed at a later date.
Respectfully submitted,
WIX, WENGER & WEIDNER
Girard ]~fRi%k~s, Esquire
I.D. #58867
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
WIX, WENGER 8 WEIDNER
CERTIFIED TRUE COPY
PEGGY L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
To:
Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
Date of Notice: July 12, 1999
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE,
A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY
LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS
NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT
AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT
WHERE YOU CAN GET LEGAL HELP:
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
Carlisle, PA 17013
(717) 249-3166 OR 1-800-990-9108
_~rard E. R~ckards, I D #58867
Attorney for Plaintiff
Wix, Wenger & Weidner
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
CERTIFICATE OF SERVICE
AND NOW, this 12th day of July, 1999, I, Girard E. Rickards,
Esquire, of the firm of Wix, Wenger & Weidner, hereby certify that
I have served a copy of the foregoing Notice of Default on this
date, by depositing a copy of the same in the United States mail,
postage prepaid, Harrisburg, Pennsylvania addressed as follows:
Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
NER
By: Rickards, Esquire
ID# 58867
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
· - PEGGY L. BURKETT,
MERLE L. SMYSER, JR. and
KELL~ S. SMYSER, I)e[enclnnt
IN TIlE COUNT OF COMHON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVlb ACTION - LAW
UO. 99-2579 CIVIL
......... 'ToMERLE L. SMYSER/ JR. , Defendnnt(~)'
You are hereby notified that on
, 19 , Lhe [ollowtn9 (X)~ove~)
(judgment) has been entete~ ~gainst you In the above-
captioned case.
Default judgment for failure to respond to
to the Complaint.
~r6th6not~ ry
I hereby certify that the name and address of the
proper person{s) lo receive th~.~ not'ce is:
Mr. Merle L. Smyser, Jr..
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
, I)e ['e n,.I [ do/.~
FECIIA:
Cett[flco que 1.~ nl. guiente direccion es la del
defend[do/a segun [n,l[cada en el certJficado de
reeidencte:
Mr. Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburq, PA 17055
hbogaclo del Demandante
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
AND NOW, this Z~ day of ~¢~,~ , 1999, upon
consideration of the Plaintiff's Motion to Compel Discovery, a Rule
is hereby issued on all parties to show cause why said Motion
should not be granted.
Rule returnable ~ days after service.
BY THE COURT:
/
PEGGY L. BURKETT,
Plaintiff
Ve
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
PLAINTIFF'S MOTION TO COMPEL DISCOVERY
1. This action was commenced by Praecipe for Writ of Summons
on April 29, 1999.
2. Defendant, Merle L. Smyser, Jr., was served by the
Sheriff of Cumberland County with a Writ of Summons on May 18,
1999.
3. On May 26, 1999, a Sheriff's Return regarding Defendant,
Kelly S. Smyser, was made indicating that the Defendant moved and
left no forwarding address.
4. On June 8, 1999, the Plaintiff's Complaint was filed.
5. On July 27, 1999, default judgment was entered against
Defendant, Merle L. Smyser, Jr.
6. On July 29, 1999, the Plaintiff served upon Defendant,
Merle L. Smyser, Jr., Interrogatories, Set I. A true and correct
copy of the Plaintiff's Interrogatories Directed to Defendant Merle
L. Smyser, Jr. is attached hereto as Exhibit "A" and incorporated
herein by reference.
7. As of this date, Defendant, Merle L. Smyser, Jr., has
filed neither objections nor answers to the Plaintiff's
Interrogatories.
8. The Defendant's Answers to Interrogatories are overdue.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable Court to enter an Order compelling Merle L. Smyser,
Jr. to answer the Plaintiff's Interrogatories by a date certain or
suffer sanctions pursuant to Pa. R.C.P. 4019.
Respectfully submitted,
WIX,
Lrard E. Rickards, Esquire
I.D. #58867
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
Exhibit A
PEGGY L. BURKETT,
Plaintiff
Vo
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
INTERROGATORIES DIRECTED TO DEFENDANT MERLE L. SMYSER, JR.
SET - I
TO: MERLE L. SMYSER, JR.
PLEASE TAKE NOTICE that you are hereby required pursuant to
Pennsylvania Rules of civil Procedure, Rules 4005 and 4006, as
amended, to file the original and serve upon the undersigned a copy
of your Answers and Objections, if any, in writing and under oath
to the following Interrogatories within thirty (30) days after
service of the Interrogatories. The Answers shall be inserted in
the space provided. If there is insufficient space to answer an
Interrogatory, the remainder of the Answer shall follow on a
supplemental sheet.
These shall be deemed to be continuing Interrogatories. If,
between the time of your Answers and the time of trial of this
case, you, or anyone acting in your behalf, learn of any further
information not contained in your Answers, you shall promptly
furnish said information to the undersigned by Supplemental
Answers.
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
Exhibit "A"
1. State your relationship to Kelly S. Smyser and her
current whereabouts including a residence and mailing address and
phone number.~
2. State the name and current address of all persons who had
an ownership interest of 100 North Arch Street, Mechanicsburg,
Pennsylvania as of May 2, 1997.
3. State the name and current address of all individuals who
occupied the residence at 100 North Arch Street, Mechanicsburg,
Pennsylvania as of May 2, 1997.
4. If any individuals were occupying 100 North Arch Street,
Mechanicsburg, Pennsylvania, other than the owners on May 2, 1997,
please state whether there was a lease agreement and attach a copy
of said lease agreement to your answers to'Interrogatories.
Personal information. State:
(a) Your full name;
(b) Each other name, if any, which you have used or by
which you have been known;
(c)
The name of your spouse at the time of the accident
and the date and place of your marriage to such
spouse;
(d)
The address of your present residence and the
address of each other residence which you have had
during the past five years;
(e) Your present occupation and the name and address of
your employer;
(f) Date of your birth;
(g) Your Social Security number;
(h) Your miliary service and positions held, if any;
and
(i) The schools you have attended and the degrees or
certificates awarded, if any.
6. If you are covered by any type of insurance, including
any excess or umbrella insurance, that might be applicable to the
incident in this matter, state the following with respect to each
such policy:
(a) The name of the insurance carrier which issued the
policy;
(b) The named insured under each policy and the policy
number of each policy;
(c) The type(s) and effective date(s) of each policy;
(d)
The amount of coverage provided for injury to each
person, for each occurrence, and in the aggregate
for each policy; and
(e)
Each exclusion, if any, in the policy which is
applicable to any claim thereunder and any reasons,
if any, why you or the carrier claim the exclusion
is applicable.
.7.
Witnesses:
(a) Identify each person who
(1) Was a witness to the incident through sight or
hearing and/or
(2) Has knowledge of facts concerning the
happening of the incident or conditions or
circumstances at 'the scene of the incident
prior to, at the time of, or after the
incident.
(b) With respect to each person so identified, state
that person's exact location and activity at the
time of the incident.
8. If you know of anyone that has given any statement (as
defined by the Rules of Civil Procedure) concerning this action or
its subject matter, state:
(a)
The identity of such person;
When, where, by whom, and to whom each statement
was made, and whether it was reduced to writing or
otherwise recorded; and
(c)
The identity of any person who has custody of any
such statement that was reduced to writing or
otherwise recorded.
9. If you know of the existence of any photographs, motion
pictures, video recordings, maps, diagrams, or models relevant to
the incident, state:
(a) The nature or type of such item;
(b) The date when such item was made;
(c) The identity of the person that prepared or made
each item; and
(d) The subject that each item represents o~ portrays.
10. If you, or someone not an expert subject to Pa. R.C.P.
No. 4003.5, conducted any investigations of the incident, identify:
(a) Each person, and the employer of each person, who
conducted any investigation(s); and
(b) Ail notes, reports or other documents prepared
during or. as a result of the investigation(s) and
the persons who have custody thereof.
11. Identify each person you intend to call as a non-expert
witness at the trial of this case, and for each person identified
state your relationship with the witness and the substance of the
facts to which the witness is expected to testify.
12. Identify each expert you intend to call as a witness at
the trial of this matter, and for each expert state:
(a) The subject mater about which the expert is
expected to testify; and
(b) The substance of the facts and opinions to which .
the expert is expected to testify and a summary of
the grounds for each opinion. (You may file as
your answer to this interrogatory the report of the
expert or have the interrogatory answered by your
expert.)
· 'f all exhibits that you in~end to use at the trial
13. I~ntl ~= -*=te whether they ~lll be used during the
~ this matter anu =~_ .... ~ ehe tria~.
~ability or damages portlon~ ....
14. If you intend to use any book, magazine, or other such
writing at trial, state:
(a) The name of the writing;
(b) The author of the writing;
(c) The publisher of the writing;
(d) The date of publication of the writing; and
(e) The identity of the custodian of the writing.
C_ERTIFIC~TE OF SERVIC~
AND NOW, this ~ day of October, 1999, I, Girard E.
Rickards, Esquire, of the firm of Wix, Wenger & weidner, hereby
certify that I have served a copy of Plaintiff's Motion to Compel
Discovery on this date, by depositing a copy of the same in the
united states mail, postage prepaid, in Harrisburg, Pennsylvania
addressed as folloWS:
Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
WIX, ~ & WEIDNER
By: ~r/ar~d E. ~ard~, Esqulr,~
ID# 58867
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
PEGGY L. BURKETT,
Plaintiff
Ve
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COM]40N PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
RULE ~BSOLUTE
1999, upon
AND NOW, this $' day of ~~ -'
consideration of the Plaintiff's Petition To Make Rule Absolute,
Defendant, Merle L. Smyser, Jr., is hereby ordered to serve Answers
to the Plaintiff's interrogatories on or before _ /~'~7~ ~ ~'~'-%~
or suffer sanctions pursuant to Pa. R.C.P. 4019.
BY THE COURT:
Jo
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
p~ETITION TO MA_K~ RULE ~BSOLUTE
1. This action arises from an incident that occurred on May
6, 1997 wherein the plaintiff sustained damages to her motor home
as a result of tree limbs extending over property owned by Merle L.
Smyser, Jr. and Kelly S. Smyser.
2. Default judgment was entered against Defendant, Merle L.
Smyser, Jr. on July 27, 1999.
3. As of this date, the Plaintiff has been unable to locate
Defendant Kelly S. Smyser for service.
4. On July 29, 1999, the Plaintiff served upon Defendant,
Merle L. Smyser, Jr., a set of interrogatories requesting, inter
alia, the present address of Kelly S. Smyser.
5. On or about October 25, 1999,
compel the Defendant, Merle L. Smyser,
Plaintiff filed a Motion to
Jr., to answer Plaintiff's
interrogatories-
6. On October 28, 1999, the Honorable Kevin A. Hess issued
a Rule to Show Cause why the Plaintiff's Motion to compel Discovery
should not be granted. A true and correct copy of the Rule dated
October 28, 1999 is attached hereto as Exhibit "A" and incorporated
herein by reference.
7. On November 3, 1999, Plaintiff's attorney served upon
Defendant, Merle L. Smyser, Jr. a copy of the Rule to Show Cause
dated October 28, 1999 via first class mail.
8. As of this date, Defendant, Merle L. Smyser, Jr., has not
responded to the Plaintiff's interrogatories, the Plaintiff's
Motion to Compel Discovery, nor the Rule to ShoW Cause.
9. Plaintiff, Peggy L. Burkett, respectfully requests Your
Honorable court to enter an Order compelling Defendant, Merle L.
Smyser, Jr., to answer the Plaintiff's interrogatories by a date
certain or suffer sanctions pursuant to Pa. R.C.P. 4019.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable court to enter an Order compelling Defendant, Merle
L. Smyser, Jr., to answer the Plaintiff's interrogatories by a date
certain or suffer sanctions pursuant to Pa. R.C.P. 4019.
Respectfully submitted,
WIX, WE lEIDNER
By: ~
,~rard E. Ri
I.D. #58867
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
PEGGY L. BURKETT,
Plaintiff
Ve
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
R~ULE TO S~O~W_CAUS.- E
AND NOW, this ,Q~5~day of ~, 1999, upon
consideration of the plaintiff's Motion to Compel Discovery, a Rule
is hereby issued on all parties to show cause why said Motion
should not be granted.
Rule returnable __~0 days after service.
BY THE COURT:
TRUE COPY FROM RECORD
II1 T~.timon¥ ' n r, J, I h,~r~ unto set my hand
~nd the scnl of said Court at Carlisle, Pa.
............... ~.
Exhibit "A"
CERTiFiCaTE OF SERVICE
AND NOW, this 30th day of November, 1999, I, Girard E.
Rickards, Esquire, of the firm of Wix, Wenger & weidner, hereby
certify that I have served a copy of the Petition to Make Rule
Absolute on this date, by depositing a copy of the same in the
united States mail, postage prepaid, in Harrisburg, Pennsylvania
addressed as follows:
Merle L. Smyser, Jr.
4925 Old Gettysburg Road
Mechanicsburg, PA 17055
By: ~ E. ~ckards, Esqulr,'
ID# 58867
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
o
PEGGY L. BURKETT,
Plaintiff
VS.
MERLE L. SMYSER, JR.
and KELLY S. SMYSER,
Defendants
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
IN RE: PLAINTIFF'S MOTION FOR SANCTIONS
ORDER
AND NOW, this ~ q r day of January, 2000, a brief argument on the within
motion for sanctions is set for Thursday, February 10, 2000, at 2:30 p.m. in Courtroom Number
4, Cumberland County Courthouse, Carlisle, PA.
BY THE COURT,
Girard E. Rickards, Esquire
For the Plaintiff
Merle L. Smyser, Jr.
Pro Se
:rim
PEGGY L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
ORDER
AND NOW, this ;0 ~ day of ~ , 2000, upon
consideration of the Plaintiff's Motion for Sanctions Pursuant to
Pa. R.C.P. 4019, said Motion is hereby granted. The Prothonotary
is ordered to enter jud~ent in favor of the Plaintiff and against
Defendant, Merle L. Smyser, Jr. in the amount of Twenty Thousand,
Nine Hundred Sixty ($20,960.00) Dollars plus interest, costs and
reasonable counsel fees.
BY THE COURT
PEGGY L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
PLAINTIFF'S MOTION FOR DISCOVERY SANCTION8
PURSUANT TO PA R.C.P. 4019
1. This action arises from damage to the Plaintiff's Motor
Home in the amount of Twenty Thousand, Nine Hundred Sixty
($20,960.00) Dollars that resulted from the improper maintenance of
the Defendants' real property.
2. Default judgment on liability was entered against
Defendant, Merle L. Smyser, Jr., on July 27, 1999. As of this
date, the Plaintiff has been unable to locate Defendant, Kelly S.
Smyser, for service.
3. On July 29, 1999, the Plaintiff served upon Defendant,
Merle L. Smyser, Jr., Interrogatories requesting, inter alia, the
present address of Kelly S. Smyser.
4. On October 25, 1999, the Plaintiff filed a Motion to
Compel Defendant, Merle L. Smyser, Jr. to answer Plaintiff's
Interrogatories.
5. On October 28, 1999, The Honorable Kevin A. Hess issued
a Rule to Show Cause why the Plaintiff's Motion to Compel Discovery
should not be granted.
PEGGY L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
ORDER
AND NOW, this I~ ~ day of ~ , 2000, upon
consideration of the Plaintiff,s Motion for Sanctions Pursuant to
Pa. R.C.P. 4019, said Motion is hereby granted. The Prothonotary
is ordered to enter judgment in favor of the Plaintiff and against
Defendant, Merle L. Smyser, Jr. in the amount of Twenty Thousand,
Nine Hundred Sixty ($20,960.00) Dollars plus interest, costs and
reasonable counsel fees.
BY THE COURT
PEGGY L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION FOR DISCOVERY SANCTION~
PURSUANT TO PA R.C.P. 40~9
1. This action arises from damage to the Plaintiff,s Motor
Home in the amount of Twenty Thousand, Nine Hundred Sixty
($20,960.00) Dollars that resulted from the improper maintenance of
the Defendants, real property.
2. Default judgment on liability was entered against
Defendant, Merle L. Smyser, Jr., on July 27, 1999. As of this
date, the Plaintiff has been unable to locate Defendant, Kelly S.
Smyser, for service.
3. On July 29, 1999, the Plaintiff served upon Defendant,
Merle L. Smyser, Jr., Interrogatories requesting, inter alia, the
present address of Kelly S. Smyser.
4. On October 25, 1999, the Plaintiff filed a Motion to
Compel Defendant, Merle L. Smyser, Jr. to answer Plaintiff,s
Interrogatories.
5. On October 28, 1999, The Honorable Kevin A. Hess issued
a Rule to Show Cause why the Plaintiff,s Motion to Compel Discovery
should not be granted.
6. On November 3, 1999, Plaintiff,s attorney served upon
Defendant, Merle L. Smyser, Jr., a copy of the Rule to Show Cause
via first-class mail.
7. Defendant, Merle L. Smyser, Jr., never responded to the
aforementioned Rule to Show Cause.
8. On December 2, 1999, the Plaintiff filed a Petition to
Make Rule Absolute.
9. A Rule Absolute was issued on December 7, 1999 by the
Honorable Kevin A. Hess, requiring Defendant, Merle L. Smyser, Jr.,
to serve Answers to the Plaintiff,s Interrogatories within fifteen
(15) days of service or suffer sanctions pursuant to Pa. R.C.P.
4019. A true and correct copy of the Rule Absolute is attached
hereto as Exhibit "A" and incorporated herein by reference.
10. On December 10, 1999, Plaintiff,s counsel served
Defendant, Merle L. Smyser, Jr., with the Rule Absolute via first-
class mail.
11. As of this date, Defendant, Merle L. Smyser, Jr., has
failed to respond to the Rule Absolute, the Rule to Show Cause and
the Plaintiff,s Interrogatories.
WHEREFORE, Plaintiff, Peggy L. Burkett, respectfully requests
Your Honorable Court to enter sanctions against Defendant, Merle L.
Smyser, Jr., pursuant to Pa. R.C.P. 4019 entering judgment against
Defendant, Merle L. Smyser, Jr. in the amount of Twenty Thousand
($20,960.00) Dollars, plus interest, costs and reasonable
attorneys, fees.
Respectfully submitted,
WI X ,~
Girard E. Rickards, Esquire
I.D. #58867
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
Exhibit A
PEGGy L. BURKETT,
Plaintiff
v.
MERLE L. SMYSER, JR. and
KELLy S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS
f CUMBERLAND COUNTy, OF
· PENNSYLVANIA
: NO. 99-2579 CIVIL
: CIVIL ACTION LAW
JURy TRIAL DEMANDED
TO THE PROTHONOTARy:
Please reinstate the Complaint in the above-captioned matter.
Respectfully SUbmitted,
WIX, WENGER & WEIDNER
Richa~
..... No. 0727~
4705 Duke Street
Harrisburg, PA
(717) 652-8455 17109-3099
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-02579 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BURKETT PEGGY L
VS
SMYSER MERLE L JR ET AL
CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within REINSTATED COMPLAINT was served upon
SMYSER KELLY S the
DEFENDANT
at 967 W. TRINDLE ROAD
MECHANICSBURG, PA 17055
, at 0020:27 HOURS, on the 22nd day of May
LOT # 6
by handing to
KELLY S. SMYSER
a true and attested copy of REINSTATED COMPLAINT
NOTICE
, 2000
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 5.58
Affidavit .00
Surcharge 10.00
.00
33.58
Sworn and Subscribed to before
me this /~- day of
~_ ~/zrO A.D.
· t~roth0hotary '
So Answers:
R. Thomas Kline
05/23/2000
WIX, WENGER & WEIDNER
u - ~puty' S~riff
ROLF E. KROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone:
Fax:
E-mail:
[717] 975-8114
[717] 975-8124
rkroll~margolisedelstein, com
PEGGY L. BURKETT,
Vo
Plaintiff
MERLE L. SMYSER, JR. and :
KELLY S. SMYSER, :
Defendants :
Attorney for:
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter the undersigned's appearance on behalf of the Defendants, Merle L. Smyser, Jr.
and Kelly S. Smyser, in the above-captioned action.
By:
MARCK)~IS~EDELSTEIN
E. ire
Attorney I.D. #47243
Post Office Box 932
Harrisburg, PA 17108-0932
(717) 975-8114
Attorney for Defendants
CERTIFICATE OF SERVICE
I, Jessica Bates, an authorized representative of Margolis Edelstein, hereby certify that I have
served a true and correct copy of the foregoing document upon all counsel and parties of record this 5th
day of June, 2000, by placing the same in the United States First Class Mail, postage prepaid, at Camp
Hill, Pennsylvania, addressed as follows:
Girard E. Rickards, Esquire
Wix, Wenger & Weidner
4705 Duke Street
Harrisburg, PA 17109
By:
essica Bates
ROLF E. KROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone:
Fax:
E-mail:
1717] 975-8114
1717] 975-8124
rkroll~margolisedelstein.com
PEGGY L. BURKETT,
Vo
MERLE E. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
Plaintiff
Attorney for:
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CWIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO:
Peggy L. Burkett, Plaintiff
c/o Girard Rickards, Esquire
4705 Duke Street
Harrisburg, PA 17109
YOU ARE HEREBY NOTIFIED to plead to the enclosed NEW MATTER within
twenty (20) days of service hereof, or a default judgment may be entered against you.
Date: ~,xt~ta9 .q ,2001 By:
!~L~ EDELSTF_~q
Attorney I.D. #47243
Post Office Box 932
Harrisburg, PA 17108-0932
(717) 975-8114
Attorney for Defendants
ROLF E. KROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone: 1717] 975-8114
Fax: [717] 975-8124
E-mail: rkroll(~marllolisedelstein.co m
PEGGY L. BURKETT,
Plaintiff
Vo
MERLE E. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
Attorney for:
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEFENDANTS' ANSWER WITH NEW MATTER
AND NOW, come Defendants Merle and Kelly Smyser, by and through their attomeys,
Margolis Edelstein, and in support thereof aver the following:
1. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the troth of the averments in this paragraph of
Plaintiffs Complaint, and the same is accordingly denied.
2. Admitted.
3. Admitted.
4-8. Denied pursuant to Pa. R.C.P. No. 1029(e).
in full.
NEW MATTER
Paragraphs 1 through 8 hereof are incorporated herein by reference as if set forth
10. Plaintiff has failed to state a claim upon which relief can be granted.
11. Plaintiff's claims are barred by the doctrines of contributory and comparative
negligence.
12. Plaintiffs claims are barred by the doctrine of assumption of risk.
13. Defendant was confronted with a sudden emergency not of his own creation to
which he responded reasonably under the circumstances.
Respectfully submitted,
By: Rolf ~. Krol~l~s~uire '
Attorney I.D. g47243
Post Office Box 932
Harrisburg, PA 17108-0932
(717) 975-8114
Attorney for Defendants
VERIFICATION
I, Merle L. Smyser, have read the foregoing Answer with New Matter which has been
drafted by my counsel. The factual statements contained therein are known by me to be tree and
correct to the best of my knowledge, information and belief.
This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section
4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make
false averments, I may be subject to criminal penalties.
Date:
Mer~ek~. Smyse; k,~ ] [-
CERTIFICATE OF SERVICE
I, Jessica Bates, an authorized representative of Margolis Edelstein, hereby certify that I have
served a tree and correct copy of the foregoing document upon all counsel and parties of record this
¢ ~day of January, 2001, by placing the same in the United States First Class Mail, postage
prepaid, at Camp Hill, Pennsylvania, addressed as follows:
Richard H. Wix, Esquire
4705 Duke Street
Harrisburg, PA 17109
By:
PEGGY L- BURKETT,
Plaintiff
Ve
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: jURY TRIAL DEMANDED
p~XNTZFF'S ~¥ TO DEFEND~%I~TS' NEW I~TTE~
10. Denied.
11. Denied.
12. Denied.
13. Denied.
WHEREFORE, Plaintiff demands judgment against the Defendants,
together with interest and costs.
Respectfully submitted,
WIX, WENGER & WEIDNER
Richard H. wix, I.D. No. 07274
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
CERTIFiCaTE OF SERVICE
AND NOW, this 12th day of February 2001, I, Richard H. Wix
Esquire, of the firm of Wix, Wenger & Weidner, hereby certify that
I have served a copy of Plaintiff's Reply to Defendants' New Matter
on this date, by depositing a copy of the same in the united States
mail, postage prepaid, in Harrisburg, Pennsylvania addressed as
follows:
Rolf E. Kroll, Esquire
MARGOLIS EDELSTEIN
p. O. Box 932
Harrisburg, PA 17108-0932
WIX, WENGER & WEIDNER
Richard H. Wix, Esqu'
I.D. #07274
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBEBT.AND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO:
Merle L. Smyser, Jr. and Kelly S. Smyser
c/o Rolf E. Kroll, Esquire
MARGOLIS EDELSTEIN
P. O. Box 932
Harrisburg, PA 17108-0932
YOU ARE HEREBY NOTIFIED to plead to the enclosed New Matter
within twenty (20) days from service hereof or a default judgment
will be entered against you.
Respectfully submitted,
WIX, WENGER & WEIDNER
DATE: ~-;~-O; BY:
Richard H. Wix, Esquire
I.D. #07274
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 99-2579 CIVIL
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
p~NTIFF'S ANSWER TO PETITION TO OPEN JUDGMENT
1. Admitted.
2. Admitted.
3. Admitted.
4. It is admitted
that defense counsel entered his
appearance on or about June 6, 2000 and that he sent letters of
November 27 and December 15, 2000 to Attorney Rickards.
5. Admitted.
6. Denied.
7. Denied.
8. The allegations of Paragraph $ set forth a conclusion of
law to which no answer is required.
9. The allegations of Paragraph 9 set forth conclusions of
law as well as facts solely within the knowledge of the Defendants,
and therefore, proof thereof is demanded.
10. Denied.
NEW I,~TTER
11. Proper notice as required by the Pennsylvania Rules of
civil Procedure were sent to the Defendant prior to the entry of
AND NOW, this 14th day of February, 2001, I, Richard H. Wix,
Esquire, of the firm of Wix, Wenger & Weidner, hereby certify that
I have served a copy of Plaintiff,s Answer to Petition to Open
Judgment on this date, by depositing a copy of the same in the
United States mail, postage prepaid, in Harrisburg, Pennsylvania
addressed as follows:
Roll E. Kroll, Esquire
~GOLIS EDELSTEiN
P. O. Box 932
Harrisburg, PA 17108-0932
WIX, WENGER & WEIDNER
I.D. #07274
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
ROLF E. KROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone:
Fax:
E-mail:
[717] 975-8114
[717] 975-8124
rkroll~mareolisedelstein.com
PEGGY L. BURKETT,
Plaintiff
MERLE E. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
Attorney for:
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEFENDANTS' REPLY TO NEW MATTE.r.
AND NOW come Defendants, Merle E. Smyser, Jr. and Kelly S. Smyser, by and through
their counsel, Margolis Edelstein, to reply to Plaintiff's New Matter and in support thereof aver
the following:
11. Defendant Smyser never physically received any Notice of Intent to Take Default
Judgment. In a deposition taken on February 16, 2001, Mr. Smyser indicated that he had trouble
receiving his mail and had at least three instances of having his mailbox destroyed or stolen.
Accordingly, Defendant does not deny that Notice was sent, however, same was not received.
12. Admitted in part and denied in part. It is admitted that a review of the docket
would have shown that Judgment was entered. However, the balance of this paragraph of
Plaintiff's Complaint is denied as a conclusion of law. Moreover, it is respectfully submitted
that Plaintiff's counsel was placed on notice of Defendants' Entry of Appearance and no notice
to defense counsel concerning the entry of the Default Judgment was ever received until the
telephone call on or about Tuesday, February 13, 2001, at which point prompt attention to the
Default Judgment was taken, including the filing of a Petition to Open Judgment. Depositions
concerning the Petition to Open Judgment have also been taken confirming that Mr. Smyser did
not physically receive the Notice of Intent to Take Default Judgment. Upon actual receipt of the
physical Complaint in May 2001, Mr. Smyser promptly sought the assistance of counsel, an
appearance was entered and ultimately, the Default Judgment was discovered. Accordingly, it is
respectfully submitted that the Petition to Open Judgment is timely.
By:
Respectfully submitted,
M EDELSTE
Attorney I.D. #47243
Post Office Box 932
Harrisburg, PA 17108-0932
(717) 975-8114
Attorney for Defendants
CERTIFICATE OF SERVICE
I, Jessica Bates, an authorized representative of Margolis Edelstein, hereby certify that I have
served a tree and correct copy of the foregoing document upon all counsel and parties of record this
[ t~ ~4b~day of February, 2001, by placing the same in the United States First Class Mail, postage
prepaid, at Camp Hill, Pennsylvania, addressed as follows:
Richard H. Wix, Esquire
4705 Duke Street
Harrisburg, PA 17109
Jessica Bates
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CI:
CIVIL ACTIO/q
JURY TRIAL E
ORDER
AND NOW, this __ day of , 2001, upon consideration of the
Petition to Open Judgment, it is NOW AND HEREBY ORDERED that judgment is open and the
parties may proceed with discovery.
BY THE COURT:
Jo
ROLF E. K-ROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone:
Fax:
E-mail:
[717] 975-8114
[717] 975-8124
rkroll~m~ rgolisedelstein.com
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
Attorney for:
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PETITION TO OPEN JUDGMENT
AND NOW come Defendants, Merle L. Smyser, Jr. and Kelly S. Smyser, by and through
their counsel, Margolis Edelstein, and request that this Honorable Court open judgment and in
support thereof avers the following:
1. This case was commenced by Writ of Summons and formalized by Complaint
filed on or about June 8, 1999. Default Judgment was entered against Defendant Merle L.
Smyser, Jr. on or about July 27, 1999.
2. . Judgment has yet to be entered on Defendant Kelly S. Smyser.
3. By Order dated February 10, 2000, upon a Motion for Sanctions, this Honorable
Court granted judgment in favor of Plaintiff and against Merle L. Smyser, Jr., in the amount of
$20,960 plus interest and .costs.
4. The undersigned defense counsel first received notice of this suit by letter dated
June 2, 2000, and entered his appearance on or about June 6, 2000. Communicating with his
clients initially proved difficult and counsel wrote two letters to Plaintiffs counsel advising him
of his intention to enter a defense to Plaintiff's claims. No communication was made to
Defendants' counsel by Plaintiff's counsel despite two letters being written to Plaintiff's counsel
pertaining to the filing of an Answer. Tree and correct copies of the two letters in question are
attached hereto as Exhibits A and B respectfully.
5. Defense counsel's actual first notice of the Default Judgment came yesterday,
February 12, 2001, upon a phone call from Plaintiff's counsel. After learning of the Default
Judgment, defense counsel promptly filed the instant Petition.
6. It is believed and therefore averred that a valid defense exists to this claim. This
case arises fi:om damage to mobile home that occurred when Plaintiff drove her vehicle into
Defendants' trees. The allegation is that the tree limbs were overhanging too low. However,
based upon the infomiation in the file, this appears to be a defensible issue as Defendant believes
and avers that the location of the tree limbs were static and the mobile home was, by definition,
mobile.
7. Defendants are likewise aware that there must be a reasonable excuse for the
Mr. Smyser has been interviewed. He asserts that he was advised by the process server
delay.
that he was being sued and acknowledges receipt of the Writ of Summons. However, the process
server did not know why he was being served, but indicated additional documents would be
forthcoming. Mr. Smyser indicates that no additional documents were ever received by him and
accordingly, no contact with an attorney or insurance agent was made. An original Affidavit
from Mr. Smyser, sweating to the above facts is attached hereto as Exhibit "C."
8. The undersigned defense counsel is acutely aware that timeliness of the Petition is
important and that a review of the docket would have revealed the Default Judgment. However,
upon actual notice of the Default Judgment, the undersigned has acted promptly to bring it to the
Court's attention.
9. The undersigned is advised that in light of the lack of notice to both the insurance
company and the undersigned of the Default Judgment entered against him, the insurance
company the insurance company is currently defending this case upon a reservation of rights and
may well deny coverage, exposing Mr. Smyser personally. However, if the Default Judgment is
opened, no prejudice will inure to the insurance company and coverage will likely attain. Such a
result will inure to the benefit of both Plaintiff and Defendant.
10. Based upon the foregoing, it is respectfully requested that this Honorable Court
open the judgment entered against Defendant Smyser so that litigation may proceed.
WHEREFORE, Defendants Merle L. Smyser, Jr. and Kelly S. Smyser
respectfully request that this Honorable Court open the judgment entered in this case in view of
Mr. Smyser's valid defense to the underlying claim, Mr. Smyser's reasonable excuse for failing
to take action on the documents filed, and the prompt action taken upon actual notice of the
judgment.
Respectfully submitted,
By:
MARGO~IS EDELSTEIN
R01fE. Kr~, Esquire
Attorney I.D.//47243
Post Office Box 932
Harrisburg, PA 17108-0932
(717) 975-8114
Attorney for Defendants
Exhibit A
PHILADELPHIA OFFICE
THE CURTIS CENTER
FOURTH FLOOR
INDEPENDENCE SQUARE WEST
PHILADELPHIA~ PA 19106-3304
215422-1100
FAO( 2t 5-822.1772
PITTSBURGH OFFICE
1500 GRANT BUILDING
PITTSBURGH, PA 15219-2203
412-281..4256
FAX 412.442-2380
WRITER:
ROLF E. KROLL
DIRECT E-MAIL: rkroll_2000~yahoo.com
MARGOLIS EDELSTEIN
ATTORNEYS AT LAW
POST OFFICE BOX 932'
HARRISBURG, PA 171084)932
STREET ADDRESS:
3510 TRINDLE ROAD
CAMP HILL, PA 17011
7174)758114
FAX 7174)75-8124
November 27, 2000
DELAWARE COUNTY OFFICE
216 SOUTH ORANGE STREET
MEDI~ PA 19O63
610~54311
FAX 810-565-8318
NEW JERSEY OFFICE
P.O. BOX ~
216 HADDON AVENUE
WESTMONT, NJ 0810~288~
FAX 609-858-1017
SCRANTON OFFICE
THE OPPENHEIM BUILDING
409 LACKAWANNA AVENUE
SUITE 3C
SCRANTON, PA 18503
FAX 570-342.4~4t
Girard E. Rickards, Esquire
Wix, Wenger & Weidner
4705 Duke Street
Harrisburg, PA 17109
Burkett v. Smyser
Claim No.: 3-497945
Our File No.: 26600.4-0007
Dear Mr. Rickards:
I am writing to advise you that although Defendants' Answer to your client's Complaint
in the above-referenced matter has been drafted, I have yet to receive the signed Verification
from my client. I have been in touch with Mr. Smyser and expect to receive the Verification
shortly. I will promptly forward the Answer to you upon receipt of the signed Verification fo~m.
Thank you for your patience.
Si!merdy. , ..
Exhibit B
,~DELPHIA OFFICE
~ CURTIS CENTER
AJRTH FLOOR
IDEPENDENCE SQUARE WEST
PHILADELPHIA, PA 19106-3104
215-922-tt 00
FAX 215-922-1772
PI'VI'SBURGH OFFICE
t500 GRANT BUILDING
PITTSBURGH, PA 15219-2203
412-281-4256
FAX 412-642-2380
WRITER:
ROLF E. KROLL
DIRECT E-MAIL: rktoll_2000~yahoo.com
MARGOLIS EDELSTEIN
ATTORNEYS AT LAW
POST OFFICE BOX 932
HARRISBURG, PA 17108-0932
STREET ADDRESS:
3510 TRINDLE ROAD
CAMP HILL, PA 17011
717-975-9114
FAX 717-975-8124
December 15, 2000
DELAWARE COUNTY OFFICE
216 SOUTH ORANGE STREET
MEDIA, PA 19063
~10.M5-9~11
FAX 610-565-8318
NEW JERSEY OFFICE
P.O. BOX
2t6 HADDON AVENUE
WESTMONT, NJ 0~108-2a~6
FAX 609.458-1017
SCRANTON OFFICE
THE OPPENHEIM BUILDING
409 LACKAWANNA AVENUE
SUITE 3C
SCRANTON, PA 18503
570.,342.4231
FAX S70-342.4~41
Girard E. Rickards, Esquire
Wix, Wengcr & Weidncr
4705 Duke Street
Harrisburg, PA 17109
Burkett v. Smyser
Claim No.: 3-497945
Our File No.: 26600.4-0007
Dear Mr. Rickards:
As I advised you in my letter of November 27, 2000, Defendants' Answer to your client's
Complaint in the above-referenced matter has been drafted. However, I have yet to receive the
signed Verification fi:om my client. I have again written to Mr. Smyser requesting that he return
the signed Verification. I will promptly forward the Answer to you upon receipt of the signed
Verification form. Unless I hear from you to the contrary, I will assume that this is acceptable to
you. Thank you for your patience and professional,
REK/jab
Exhibit C
AFFIDAVIT
I, Merle ~. Smyser, Jr., declare and affirm that the following is a tree and accurate
statement of fact. I recall that I received a document delivered by the Sheriff in May of 1999.
The document indicated that I was being sued by Peggy L. Burkett but did not indicate why. I
asked the Sheriff what the document was and he indicated that he did not know but that I would
be getting additional documents in the mail in the near future. From the date I received that
document until May of 2000, when I received the Complaint, I did not receive another document
pertaining to this file. On February 13, 2001, I received a phone call from my counsel indicating
that a Default Judgment had been entered against me on July 27, 1999. I did not receive either
the Important Notice nor the Plaintiff's Motion to Compel or Petition to Make Rule Absolute
that my counsel showed me on the docket sheet. When I got the Complaint in May of 2000, I
gave it to my insurance agent and my lawyer entered his appearance on my behalf.
This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section
4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make
false averments, I may be subject to criminal penalties.
SWOP. N to ~d subscribed
befo~m9 ths/J~ day
~~, 2001.
~ta~, ~hblic
I aoAnn E. N~I~, No~ Public
I C~p Hill ~o, Cum~flan~ Coun~ I
· I My ~mmi~n ~pires June 19, 2~ ~r, ~m As~ ~
CERTIFICATE OF SERVICE
I, Jessica Bates, an authorized representative of Margolis Edelstein, hereby certify that I have
served a true and correct copy of the foregoing document upon all counsel and parties of record this
/~"~day of February, 2001, by placing the same in the United States First Class Mail, postage
prepaid, at Camp Hill, Pennsylvania, addressed as follows:
Richard H. Wix, Esquire
4705 Duke Street
Harrisburg, PA 17109
By:
essica Bates
PEGGY L. BURKETT,
Plaintiff
Vo
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER
AND NOW, this __ day of ., 2001, upon consideration of the
Petition to Open Judgment, it is NOW AND HEREBY ORDERED that judgment is open and the
parties may proceed with discovery.
BY THE COURT:
J°
~EB 1 5 20~/~j~
PEGGY L. BURKETT,
Plaintiff
Vo
MERLE L. SMYSER, JR., and
KELLY S. SMYSER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER
AND NOW, this __ day of , 2001, upon consideration of the
Petition to Open Judgment, it is NOW AND HEREBY ORDERED that judgment is open and the
parties may proceed with discovery.
BY THE COURT:
PEGGY L. BURKETT,
Plaintiff
We
MERLE E. SMYSER, JR. and
KELLY S. SMYSER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
STIPULATION
AND NOW this 16th day of April, 2001, it is hereby agreed
between counsel for the parties that the judgment previously
entered against Defendant Merle E. Smyser, Jr. is hereby opened.
Richard H. Wix, Esquire
~o l~lfor Plaintiff
Attorney for Defendants
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1999-2579 civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PETITION FOR APPOINTMENT OF ~%RBITR~TOR8
TO THE HONORABLE, THE JUDGES OF SAID COURT,
Richard H. Wix, Esquire, counsel for the Plaintiff in the
above action, respectfully represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is $20,950.00
plus interest and costs.
The following attorneys are interested in the case as counsel
or are otherwise disqualified to sit as arbitrators: Richard H.
Wix, Esquire, Wix, Wenger & Weidner, 4705 Duke Street, Harrisburg,
PA 17109, counsel for Plaintiff and Rolf E. Kroll, Esq., Margolis
Edelestein, P.O. Box 932, Harrisburg, PA 17108-0932, counsel for
Defendants.
WHEREFORE, your petitioner prays your Honorable Court to
appoint three (3) arbitrators to whom the case shall be submitted.
Respectfully submitted,
WIX, WENGER & WEIDNER
Richard H. Wix, Esq., ID# 07274
Attorneys for Defendant
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
Dated:
PEGGY L. BURKETT,
Plaintiff
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1999-2579 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER OF COURT
of
AND NOW, this
consideration of the foregoing Petition, ~o~~
Esq., _~~ Esq., and ~~[r _
Esq. are appointed arbitrators in the above-captioned case.
, 2001 in
VINV^'IXgNNr~J
CERTiFICaTE OF SERVICE
AND NOW, this 19th day of September, 2001, I, Richard H.
Wix, Esquire, of the firm of Wix, Wenger & Weidner, attorneys for
Plaintiff, hereby certify that I served the within Petition for
Appointment of Arbitrators this date by depositing a copy of same
in the United States mail, postage prepaid, in Harrisburg,
Pennsylvania, addressed as follows:
Rolf E. Kroll, Esquire
Margolis Edelstein
P.O. Box 932
Harrisburg, PA 17108-0932
Re:
WIX, WENGER & WEIDNER
Richard H. Wix, Esq., I.D. #07274
Attorneys for Plaintiff
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
o
<
<
)
)
The Court of Common Pleas of
C'~"berland County, Pennsylvania
OATH
We do solemnly swear (or affirm) =hac we will support, obey and defend
the Cobs=itu:ion of the United States and =he COnsCi~uc~o~ of =~is Common-
weai~h and chat we will discharge ~he duties ~ ~ office ~it~ fideli~y.
/-- 2 - -- 7
~ ~ ~ersi~ed arbitrators, hav~n~ ~een duly agpoln=md and swo~
(No=e: If ~es for dela7 arm awar4ed, =hey shall bm
ArSi=rators' com~.ensa=ion =o be
pal~ upon appeal:
applicable.) ·Arbi=ra=or, di
.... me if
NOTICE OF ~y OF A~
a~rd was en~mrmd upon =h~docke~d
par=les or =he~r a==o~e7s.
- - ~9ro=hono=a~
Peggy L. Burkett
Appellant
vs.
Merle L. Smyser, Jr. and
Kelly S. Smyser
Appellee
In the Court of Co~non Pleas of
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-2579
In Civil Action - Law
NOTICE OF APPEAL
FROM AWARD OF BOARD OF ARBITRATORS
TO THE PROTHONOTARY:
Notice is given that Peggy L.'Burkett, ADDellant appeals from
the award of the board of arbitrators entered in this case on
2/21/2002
I hereby
A jury trial is demanded. (If not checked, jury trial
is waived.
certify that:
the compensation of the arbitrators has been paid, or
application has been made for permission to proceed in
forma pauperis.
Appellant or Attorney for Appellant
pR~ECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THEPROTHONOTARY OF CUMBERLABDCOUNTY
Please list the following case:
( X ) for JURY trial at the next term of civil court.
(Check one)
( ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
PEGGY L. BURKETT
(check one)
( ) civil Action - Law
( X ) Appeal from Arbitration
( )
(other)
(Plaintiff)
VS.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER
VS ~
( Defendant )
The trial list will be called on 8/13/20.02
and
Trials c~,,~nce on _Sept. ~ 9, 2002
Pretrials will be held on ~
(Briefs are due 5 days before pretrials. )
(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.
Civil 99-2579 19
for the party who files this praecipe:
652-8455 ID 07274
Indicate the attorney who will try case
Richard H. Wix, Esq.
4705 Duke St., Harrisburg,_PA 17109-3099 (717)
Esq.,
Indicate trial counsel for other parties if known:
Margolis Edelstein, P.O. Box 932, Harrisburg, PA 17108-0932
This case is ready for trial, signed ~'
Print Name: Richard H. Wix, Esq.
Rolf E. Kroll,
Date: 7/22/2002 Attorney for: Plaintiff
20.
PEGGY L. BURKETT
V
MERLE L. SMYSER, JR. AND KELLY S.
SMYSER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
:
:
:
: NO. 99-2579 CIVIL TERM
ORDER OF COURT
AND NOW, August 13, 2002, counsel having failed to call the above case for
trial, the case is stricken from the September 9, 2002 trial tenii. Counsel is directed to relist the
case when ready.
Richard H. Wix, Esquire
For the Plaintiff
RolfE. Kroll, Esquire
For the Defendant
Court Administrator
ld
By the Court,
PPu~ECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF ~RLA~D COUNTY
Please list the following case:
(Check one) ( X ) for JURY trial at the next term of civil court.
( ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
PEGGY L. BURKETT
MERLE L.
KELLY S.
( Plaintiff )
VS.
SMYSER, JR. and
SMYSER
VS.
( Defendant )
(check one)
( ) Civil Action - Law
(X) Appeal from Arbitration
( )
(other)
The trial list will be called on 10/8/2002
and
Trials commence on November 4, 2002
Pretrials will be held on Oct. 16, 2002
(Briefs are due 5 days before pretrials. )
(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. Civil 99- 2579 19
Indicate the attorney who will try case for the party who files this praecipe:
Richard H. Wix, Esq., 4705 Duke St., Harrisburg, PA 17109 (717) 652-8455
ID # 07274
Indicate trial counsel for other parties if known: Rolf E. Kroll, Esq.,
Marqolis Edelstein, P.O. Box 932, Harrisburq, PA 17108-0932
(717) 975-8114
This case is ready for trial.
Date: 9/10/2002
Print Name: Richard H. Wix, Esq.
Attorney for: Plaintiff
PP~CIPE FOR LISTING CASE }'OR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAbD COUNTY
Please list the following case:
(Check one) ( X ) for JURY trial at the next term of civil court.
( ) for trial without a jury.
CAPTION OF CASE
(entire caption rmast be stated in full)
PEGGY L. BURKETT
(Plaintiff)
VS.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER
VS.
( Defendant )
( check one )
( ) Civil Action - Law
(X) Appeal from Arbitration
( )
(other)
The trial lis. t will be called on 2 / 11 / 03
and
Trials cowmence on 3 / 10 / 2003
Pretrials will be held on 2 / 19 / 2003
(Briefs are due 5 days before pretrials. )
(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. Civil 99 - 2579 19
Indicate the attorney who will try case for the psrty who files this praecipe:
Richard H. Wix, Esq., 4705 Duke St., Harrisburg, PA 17109 717-652-8455
ID# 07274
Indicate trial counsel for other parties if known:
Marqolis Edelstein, P.O. Box 932, Harrisburg, P.A
717-975-8114
Rolf E. Kroll, Esq.
17108-0932
This case is ready for trial.
Date: 12/20/2002
Print Name: Richard H. Wix, Esq.
Attorney for: Plaintiff
PEGGY L. BURKETT,
Plaintiff
VS.
MERLE L. SMYSER, JR. and
KELLY S. SMYSER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY~ PENNSYLVANIA
99-2579 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRETRIAL CONFEREN
Present at a pretrial conference held February 19, 2003, were Richard Wix, Esquire,
attorney for the plaintiff, ' and RolfKroll, Esquire, attorney for the defendants.
This is an action for damages sustained to the plaintiff's :motor home when it struck a tree
that was growing over the roadway in the borough of Mechanicsburg. Plaintiff contends that the
homeowners, the Smysers, failed to keep the tree branches trimmed to a height of fourteen feet
as required by an ordinance in the borough of Mechanicsburg.
The parties have stipulated to the amount of damages. ~l]~ey have also stipulated that the
jury should resolve the issue of comparative negligence as between the defendants and the
operator of the motor home, Mr. Green, as though he were a pm-ty to the lawsuit.
There may be some room to negotiate this case. In the event that it is not resolved, the
trial should be of no more than one day's duration.
February l9,2003
~/Richard H. Wix, Esquire
For the Plaintiff
c,4~olf E. Kroll, Esquire
For the Defendants
Court Administrator