Loading...
HomeMy WebLinkAbout99-02989 M 1 Davit A. Smwczak, Gsq. Superior enn Prothonotary Middle District Fulton Building, 200 N. Third Street, 9th Floor Patricia A. Whittaker December 18, 2000 Harrisburg, PA 17101 717.772.1294 Chier Clerk www.superior.court.state.pa.us T0; Mr. Curtis R. Long Certificate of Remittal/Remand of Record Prothonotary RE: BURYLO, R., ET UX V. ZIMMERMAN, D., ET AL No.708 MDA 2000 Trial CourUAgency Dkt. Number: 99-2989 Civil Term Trial Court/Agency Name: Cumberland County Court of Common Pleas Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date PART Description April 28, 2000 1 Date of Remand of Record: FEB 1 5 1001 Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed copy to the Prothonotary Office or the Chief Clerk's office. Patricia A. Whittaker Chief Clerk Signatur arh00 inted Name Court ftoH Date v r -c Enclosure ,. l 3. S60014/00 ROBERT]. BURYLO AND SUSAN J. IN THE SUPERIOR COURT OF BURYLO, HUSBAND AND WIFE, PENNSYLVANIA Appellants T DARREN J. ZIMMERMAN, A MINOR AND LABAN G. ZIMMERMAN, JR., Appellees No. 708 MDA 2000 Appeal from the Order entered February 16, 2000_' In the Court of Common Pleas of Cumberland County Civil Division at No. 99-2989 BEFORE: CAVANAUGH, JOYCE, JJ, and CERCONE, P.J.E. MEMORANDUM: p I LE DOEC18 20 Appellants, Robert and Susan Burylo, appeal from the order of the trial court granting summary judgment in favor of Appellees, Darren Zimmerman and Laban Zimmerman Jr. For the reasons set forth below, we affirm. The relevant facts and procedural history of this case are as follows. On June 3, 1997, Appellees' vehicle struck the vehicle driven by Appellant, Robert Burylo. Appellant, Robert Burylo, received treatment for neck and back sprain resulting from this accident. On March 4, 1998, Appellant's automobile insurance carrier, Allstate Insurance, filed a complaint seeking damages on behalf of Appellants in the amount of $4,144.51. Appellees paid $1,000 following which the judgment was marked settled and discontinued on June 17, 1998. On May 19, 1999, Appellants filed a second complaint against Appellees seeking damages for personal injuries sustained by Appellant, Robert Burylo, and a loss of J. S60014/00 consortium claim on behalf of Appellant, Susan Burylo. Appellees filed a motion for summary judgment on the grounds that the claim for personal injuries was now precluded based on the prior claim for property damage. The court granted this motion on February 16, 2000, disallowing the splitting of the two causes of action. This timely appeal followed. Appellant raises the following issues for our review: (1) whether the trial court erred in granting Appellees' motion for summary judgment when the first claim was solely for property damage and was not fully litigated; (2) whether the trial court erred in granting Appellees' motion for summary judgment based on the disallowance of splitting of causes of action when material issues of fact still remained; and (3) whether Appellees' failure to comply with local rule 210-6, requiring the service of a brief on an opposing party at least twelve days before a hearing on the motion for summary judgment, requires reversal. In this case, we have reviewed the record and studied the briefs. We conclude that the trial court's February 16, 2000 well written opinion carefully and correctly responds to the first two issues Appellants have raised. We therefore adopt in its entirety and affirm on the basis of the opinion of the trial court as to these two issues. See Trial Court Opinion, 2/16/2000. Appellants' last issue is whether Appellees violated a local rule requiring the service of their brief on the opposing party at least twelve days -2- I S60014/00 before a hearing on a motion for summary judgment. Despite raising this issue within their statement of questions presented, Appellants have failed to argue or develop this issue in the argument section of their brief. Therefore, this issue is waived. See Harkins v. Calumet Realty Co., 614 A.2d 699 (Pa. Super. 1992) (finding that issues raised in statement of questions presented that are not developed in the argument section of the brief are deemed waived). Finding no basis upon which to disturb the findings of the trial court, we affirm. Order affirmed. -3- Date: UM A's CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ROBERT J. BURYLO and SUSAN J. BURYLO Husband and Wife vs DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR. 99-2989 Civil Term 708 MDA 2000 The documents comprising the record have been numbered from No. 1 to 119 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4-26-00 . RECORD FILED IN SUPERIOR COURT S 4 APR 2 8 Gx? c Cu i R. Long, Pr thonotary HARRISBURG Jan 1. Spazling, Dpty. An additional copy of this certirate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. j ?6,,? Date ;;0r Loud Signature & Title Recesed in Stir` APR 2 7 2000 MIME Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND in the Commonwealth of Pennsylvania 708 MDA 2000 to No. 99-2989 CIVIL TERM Term, 19 is contained the following: COPY OF COMPLETE APPEARANCE DOCKET ENTRY ROBERT J. BURYLO and SUSAN J. BURYLO, husband and wife Vs DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR. SEE ATTACHED CERTIFIED DOCKET ENTRIES. i F I I z° z _ = I A U P C r Q a O d w a 0 w ? v a w ? x w v E u v A o N o U y = w 0 to i vp Among the Recntd% and ProcecdiuFs entoll:d in the cowl of ('onuoon Plca% of and lot the CUMBERLAND to Ole( 'onus„tyMt;tltlt of lien"N%hJnt.1 county of -_-----nn -n-- ?oe zooo It "No. 99-2989 CIVIL_TERM Ienn. 14 ...__...___ c. cont,nned the lolinwmt t OMPI FTP APPF.ARANCI_ IIUCKI I I Nli(\' coily 01: 110RNRT J. BURYI.O and SUSAN J. BURYLO, husband and wife j, ?II I' r .' Ir ?I I, s 'i a 11 n Commonwealth of Pennsylvania County of Cumberland I ss; 1, Curtis R Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Robert J. Burvlo and Susan J. Burylo, husband and wife Plaintiff, and Defendant s as the same remains of record before the said Court at No. 99-2989_ of Civil Term, A.D. 19_. In TFS_T 1ONY WHEREOF. 1 have hereunto set my hand and affixed the seal of said Court this 226 nn dayAf April - A. D., I?LOT- by. , t P notary I, George E. Hoffer sidcnt Judge of the Ninth _ Judicial District, composed of the County of Cumberland, do certify that _ Curtis R. Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAND in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts ofjudicat re a. I. here, and that the said record, certificate and attestation are in due form of law and made r r C cr. President .IuJgc Commonwealth of Pennsylvania County of Cumberland ss 1, Cnrt• i s B- Tong Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Gpnrga p Hof fer by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President .ludge oft he Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said Count y, duly Commissioned and qualified; to all whose acts as such full faith and credit arc and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto Tmyy hand and affixed the seal of said Court this 6t11 day of April A D M00 PYS510 rumberland County Prothonotarir's Office Page !'I Civ il Case Inquiry "'- ' 1999-02989 BURYLO ROBERT J ET AL (vs) ZIMMERMAN DARREN J MINOR ET AL Reference No..: Filed........: 5/17/1991 Case Type.....: COMPLAINT : .00 ment Jud Time.........: Execution Date 3:41 0/00/000( ..... g Judge Assigned : Jury Trial.... Dispposed Date 0/00/000( Disposed Desc.: ------------ Case Comments --- ---------- . Higher Crt 1.: 708 MDA 20( Higher Cr.t 2.: General Index Attorney Info BURYLO ROBERT J PLAINTIFF HOGG STEPHEN J 731 TORWAY ROAD GARDNERS PA 17324 BURYLO SUSAN J PLAINTIFF HOGG STEPHEN J 731 TORWAY ROAD GARDNERS PA 17324 ZIMMERMAN DARREN J MINOR DEFENDANT SCHWARTZ MARK D 162 EAST OLD YORK ROAD CARLISLE PA 17013 ZIMMERMAN LABAN G DEFENDANT SCHWARTZ MARK D 162 EAST OLD YORK ROAD CARLISLE PA 17013 * Date Entries ****************************************#*************##}}}*A#}Y*A#AAA#A#AAAAAI 1 - 12 5/17/1999 13 6/03/1999 14 6/03/1999 15 - 16 17 - 14 20 - 30 31 - 32 33 - 58 59 - 63 64 7/12/1999 7/12/1999 8/1.0/1999 9/03/1999 9/13/1999 9/23/1999 11/18/1999 65 - 100 11/18/1999 101 11/18/1999 102 - 103 11/24/1999 104 - 107 11/30/1999 108 - 112 2/16/2000 - - - - - - - - - - - - [18.1.1 ?I\1Rl COMPLAINT - CIVIL ACTION - - -- ------------------------------------------•-- SHERIFF'S RETURN FILED. Litigant.: ZIMMERMAN DARREN J SERVED : 6/2/99 COMPL Costs....: $29.10 Pd By: STEPHEN J. HOGG 06/03/1999 ---- - - ---------------------------------------------------- SHERIFF'S RETURN FILED. Litigant.: ZIMMERMAN LABAN G JR SERVED :6/2/99 COMPL Costs....: $14.00 Pd By: STEPHEN J. HOGG 06/03/1999 - ------------------------------------------- -------------- - PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS BY MARK D SCHWARTZ ESO ------------------------------------------- -------------- --- ----- PRELIMINARY OBJECTIONS OF-DEFENDANTS TO PLAINTIFFS'-COMPLAINT AMENDED COMPLAINT -------- ,----- .- --------------- ----------------------------------- IMPORTANT NOTICE FILED - CERTIFICATE OF SERVICE - _--- -- ANSWER-OF-DEFENDANTS WITH NEW MATTER TO THE PLAINTIFFS' COMPLAINT PLAINTIFF'S ANSWER TO NEW MATTER ---------------------------------------------------------- _______.... PRAECIPE FOR LISTING CASE FOR ARGUMENT BY STEPHEN 1 HOGG ESO DEFENDANT'S NEW MATTER RAISES DEFENSE. OF RES JUDICATA BY HE SON OF A PRIOR ACTION INVOLVING SIMILAR PARTIES ----------- ---°- DEFENDANTS DARREN J ZIMMERMAN'S AND LAHAN G ZIMMERMAN .Ili MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA RCP 1035 - --------- PRAECIPE PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MARK 1) SCHWARTZ F.SQ DEFENANT'S MOTION FOR SUMMARY JUDGMENT ----------------------------- -------- PRAECIPE TO WITHDRAW THE PLAINTIFFS PRAECIPF TO LIST FOR ARGUMENT COURT BY STEPHEN J HOGG ESQ _______.._____-. PLAINTIFFS ROBERT J BURYLO AND SUSAN 1 BURYLO':i RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT -......__ , .. ORDER OF COURT - DATED 02-16-00 - IN RE :i MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER PJ HESS AND 01,171i JJ -SUMMARY JUDGMENT IS r PYS510 Qumberland County Prothonotary' Office Page Civil Case Inquiry 1999-02969 BURYLO ROBERT J ET AL (vs) ZIMMERMAN DARREN J MINOR ET AL Reference No..: Filed........: 5/17/1999 Case Type.....: COMPLAINT Time.........: 3:41 Judgment..... : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 Case Comments ------------- Hi her Crt 1.: 708 MDA 200 Higher Crt 2.: GRANTED BY THE COURT J HESS - COPIES MAILED 02-16-00 ------------------------------------------------------------------- 113 - 116 3/17/2000 NOTICE OF APPEAL TO SUPERIOR COURT FROM ORDER ENTERED 2/16/00 BY STEPHEN J HOGG ESQ --------------------- 117 - 119 3/31/2000 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 708 MDA 2000 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - * Escrow Information * Fees 6 Debits Beq Bal Pymts/Ad! End Bal COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ------------------------ ------------ 75.50 75.50 .00 ++++++*+++++++++++**+++*+++++++++++*++++++*++++++++++++++**+++++++*++++++++++++ * End of Case Information ++++*+**++++++++++++*+++++*+**++*+++++++*++*++++++++++*++****+++++++++++++++*++ TRUE DOPY FROM RECOW in ToekWito W whereof, I tW6 undo got MY h" wd lh of y d u t 51 Clan W8, FL r <? V i ROBERT J.BURYLO and SUSAN J. BURYLO, Husband and Wife. Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, NO. 99. 97 &wa 7?1 and LABAN G. ZIMMERMAN, JR., Defendants 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 attomey 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 TLEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue UWOFFICESOF Carlisle, Pennsylvania 17013 STEPHENJ.IiOGG Telephone: (717) 249-3166 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, NO. 9 9. .2 9P9 e<;ILV T - and LABAN G. ZIMMERMAN, JR., Defendants JURY TRIAL DEMANDED COMPLAINT COUNTI Robert J. Burylo V. Darren J. Zimmerman AND NOW, comes the Plaintiffs, Robert J. Burylo and Susan J. Burylo, by their attorney, Stephen J. Hogg, Esquire who file this Complaint as follows: 1. Plaintiff Robert J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 2. Plaintiff Susan J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 3. Defendant Darren J. Zimmerman, is and was at all times relevant to this complaint a minor child under the age of 21 who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. IAWOFFICESOF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 I 4, Defendant Laban G. Zimmerman, Jr., is an adult individual who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. 5. Defendant Laban G. Zimmerman, Jr. is the owner of a 1986 Dodge Ram pickup truck, with Pennsylvania license plate # ZHO8167. 6. Plaintiff Robert J. Burylo is the owner of 1995 Chevrolet pickup truck, with Pennsylvania license plate # AC27250. 7. On or about June 3, 1997, at approximately 6:30 P.M., prevailing time the Plaintiff Robert J. Burylo was traveling north on State Route 34 in South Middletown Township, Cumberland County, near the intersection with State Route 174 at a lawful and appropriate rate of speed for the conditions, and with due regard for other vehicles on the road. 8. At the above referenced time and location, Defendant, Darren J. Zimmerman was operating Defendant Laban G. Zimmerman, Jr.'s vehicle with permission traveling east on State Route 174. 9. Defendant Darren J. Zimmerman failed to stop at the stop sign located on State Route 174 and proceeded directly into the intersection with State Route 34. 10. In the alternative, Defendant Darren J. Zimmerman stopped at the stop sign on State Route 174 but proceeded into the intersection with State Route 34 without ensuring the way was clear and without tAW OFFICES OF STEPHBNJ. HOGG regard to oncoming traffic. 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 2 3 . 11. Plaintiff Robert J. Burylo was traveling through the intersection with State Route 174 and had no traffic control device for traffic traveling north on State Route 34 through the said intersection with State Route 174. 12. The Zimmerman vehicle entered the above aforementioned intersection after failing to stop at the stop sign on State Route 174 or failing to ensure the way was clear and struck the rear driver's side of the Burylo vehicle. 13. Plaintiff Robert Burylo suffered serious and permanent injuries to his cervical and lumbar spine as a result of the aforementioned collision. 14. The aforementioned collision was the direct and proximate result of the carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman in that he: a. Failed to exercise reasonable care in the operation of his vehicle; b. Failed to operate his vehicle at a speed appropriate for the existing conditions; C. Failed to operate his vehicle while keeping a proper lookout for other vehicles on the highway; d. Failed to operate his vehicle with due regard for the rights and safety of Plaintiff Robert J. Burylo; e. Failed to yield the right of way to an approaching vehicle; LAWOPMESOF STUBENJ. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 3 f. Failed to proceed with due regard for oncoming traffic after stopping at a clearly marked stop sign; and g. Otherwise violated 75 Pa. CSA §3323(b) relating to Duties at Stop Signs. 15. The carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman, as aforesaid, was the direct and proximate cause of Plaintiff Robert J. Burylo's injuries as aforesaid. WHEREFORE, Plaintiff Robert J. Burylo demands judgment against Defendant Darren J. Zimmerman in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs, punitive damages and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. COUNT II Robert J. Burylo V. Laban J. Zimmerman, Jr. 16. Plaintiff Robert J. Burylo hereby incorporates paragraphs 1-15 as if fully set forth herein. 17. Defendant Laban J. Zimmerman, Jr. is jointly and severally liable with Defendant Darren J. Zimmerman for Plaintiff Robert J. Burylo's injuries in that Defendant Laban G. Zimmerman, Jr. was in control of the aforementioned Dodge pickup when he permitted Defendant Darren to LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 4 J• operate it when he knew or should have known that Defendant Darren I was competent to operate it. 18. At the aforementioned time and place, Defendant Darren J. Zimmerman was the agent, servant and/or employee of Laban G. Zimmerman, Jr. and was acting within the course or scope of that agency, service or employment. 19. In the alternative, Defendant Laban G. Zimmerman, Jr. negligently entrusted the aforementioned motor vehicle owned by him to an operator he knew or should have known was not competent to operate a motor vehicle. WHEREFORE, Plaintiff Robert J. Burylo demands judgment against Defendant, Laban G. Zimmerman, Jr. in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs, punitive damages and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. COUNT III Susan J. Burylo V. Darren J. Zimmerman 20. Plaintiff Susan J. Burylo hereby incorporates paragraphs 1-19 as if fully set forth herein. 21. As a direct and proximate result of the acts of carelessness, LAW OFFICES OF STEPHEN J. HOGG negligence and/or recklessness of Defendant Darren J. Zimmerman as 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 5 6. - aforesaid, and due to the injuries sustained therefrom, Plaintiff Robert J. Burylo suffered permanent and severe injuries to his back, neck and spine, pain, headaches, loss of memory and loss of concentration and has forever lost his earning capacity, the use of his whole body and his physical energy and health. 22. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman as aforesaid, Plaintiff Robert J. Burylo has been and will permanently continue to be delinquent in his conjugal duties toward Plaintiff Susan J. Burylo in that he is uncompanionable, irritable, indifferent and neglectful toward Plaintiff Susan Burylo who has thereby lost the consort, companionship, society, affection and support of her husband, Plaintiff Robert J. Burylo, WHEREFORE, Plaintiff Susan J. Burylo demands judgment against Defendant, Darren J. Zimmerman in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs, punitive damages and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. uwoccCEsOF STEPHEN J. HoGG 10 S. NANOVER STREET SUITE 101 CARLISLE. PA 17013 6 i7 COUNT IV Susan J. Burylo V. Laban G. Zimmerman, Jr. 23. Plaintiff Susan J. Burylo hereby incorporates paragraphs 1-22 as if fully set forth herein. 24. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Laban G. Zimmerman, Jr. as aforesaid, and due to the injuries sustained therefrom, Plaintiff Robert J. Burylo suffered permsne t and severe injuries to his back, neck and spine, pain, headaches, loss of memory and loss of concentration and has forever lost his earning capacity, the use of his whole body and his physical energy and health. 25. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Laban G. Zimmerman, Jr. as aforesaid, Plaintiff Robert J. Burylo has been and will permanently continue to be delinquent in his conjugal duties toward Plaintiff Susan J. Burylo and uncompanionable, irritable, indifferent and neglectful toward Plaintiff Susan Burylo who has thereby lost the consort, companionship, I society, affection and support of her husband, Plaintiff Robert J. Burylo. LAW OFFICES OF STEPHENJ. HOGG 18 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 7 UW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 WHEREFORE, Plaintiff Susan J. Burylo demands judgment against Defendant, Laban G. Zimmerman, Jr. in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs, punitive damages and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. Date: S 7 StephQh J. Hogg,,E ire Attorney for Plaintiffs 19 S. Hanover Street, Ste. 101 Carlisle, PA 17013 (717) 245-2698 8 r VERIFICATION I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. DATE ROBERT J. BU O uW OFFKXS OF STEPHEN J. HOGG 10 S. HANOVER STREET SUITE 101 CARUSLE, PA 17013 It. >1 F, (I n cj rw o < =(nw ; w D w c c D 0 _ Q 2 H (/I (/) O. Q C) w H O' w (D r = N S ?n Vl D I--I a c, R C 3 0 . z p r ON '? -0 Li -U m?z < v u > CD ?? co m z?C) m ' z AF (D 3 I--• wac m zro i y T y n z O C7 0 3 3 1. H 7 S l< C H Ln D 3 2 -< z _ 3 m -( m H w H (D - m 3 H P. b O N < z C) D z -n (D " O D C) O y z(n fn rrw z0-u c C C: r- x g o D nzrn -( -(p - . r?, m o H w < (n 3 N• 7 O H w w t SHERIFF'S RETURN - REGULAR CASE NO: 1999-02989 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURYLO ROBERT J ET AL VS. ZIMMERMAN DARREN J MINOR ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon ZIMMERMAN DARREN J the defendant, at 9:58 HOURS, on the 2nd day of June 1999 at 162 EAST OLD YORK ROAD CARLISLE, PA 17013 CUMBERLAND County, Pennsylvania, by handing to MARTHA ZIMMERMAN (WIFE OF a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 Service 3.10 ii? rc2 Affidavit .00 omas RTine, e i Surcharge 8.00 it. $Z9'7.'iT-ST FPH$N J. HOGG 06M 1999 by epu e 1 3., Sworn and subscribed before me this ? day of SHI RSFF'S RETURN - REGULAR CASE NO: 1999-02989 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURYLO ROBERT J ET AL vs. ZIMMERMAN DARREN J MINOR ET AL DAVID MCKINNEY Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon ZIMMERMAN LABAN G JR the defendant, at 9:58 HOURS, on the 2nd day of June 1999 at 162 EAST OLD YORK ROAD CARLISLE, PA 17013 , CUMBERLAND County', Pennsylvania, by handing to MARTHA ZIMMERMAN (WIFE) a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 6.00 Service .00 2 Affidavit .00 I omalIlne Seri Surcharge 8.00 it; $14.00 STEPHEN J. HOGG 06/03/1999 by ?? n G e u y eri Sworn and subscribed , o before me this j-IL day of C _ 19 Gr A.D( n ROBERT J. BURYLO, and : IN THE COURT OF COMMON PLEAS OF SUSAN J. BURYLO, his wife, :CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. NO. 02989 CIVIL 1999 DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., CIVIL ACTION - LAW DEFENDANTS PRAECIPE TO ENTER AN APPEARANCE TO CURTIS R. LONG, PROTHONOTARY: Please enter my appearance on behalf of the Defendants, Darren J. Zimmerman and Laban G. Zimmerman, Jr. Respectfully submitted, IRWIN cKN & HUGHES By: 74' M ar D. Schwartz, Esquire Attorney for Defendants West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 70216 Date. July /2 ,1999 IJ /-.. ROBERT J. BURYLO, and SUSAN J. BURYLO, his wife, PLAINTIFFS V. DARR.EN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., DEFENDANTS : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO. 02989 CIVIL 1999 CIVIL ACTION - LAW CERTIFICATE OF SERVICE 1, Mark D. Schwartz, Esquire, do hereby certify that I have served a true and correct copy of the Praecipe to Enter an Appearance by first class United States Mail, postage prepaid in Carlisle, Pennsylvania, upon the following: Stephen J. Hogg, Esquire Law Offices of Stephen J. Hogg 19 South Hanover Street Suite 101 Carlisle, Pennsylvania 17013 Respectfully submitted, IRWIN, McKNIGHT & HUGHES By: 4 S:M41VVt-r Mar D. Schwartz, Esquire Attorney for the Defendants West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 717-249-2353 Supreme Court I.D. No. 70216 Date: July, 1999 { g m C o w O Ct7 'S c.. i Yc u. U V ll. ROBERT J. BURYLO, and : IN THE COURT OF COMMON PLEAS OF SUSAN J. BURYLO, his wife, :CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. NO. 02989 CIVIL 1999 DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., CIVIL ACTION - LAW DEFENDANTS PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT AND NOW, this ("day of June, 1999, come Defendants, DARREN J. ZIMMERMAN AND LABAN G. ZIMMERMAN, JR., by and through their attorneys, Invin, McKnight & Hughes, and make the following Preliminary Objections to Plaintiffs' Complaint, and in support thereof aver the following: I. Preliminary Objection in the Nature of a Demurrer Pursuant to Pa.R.C P 1028(a)(4). 1. In its prayer for relief in all four Counts of the Complaint, the Plaintiffs seek recovery of punitive damages. 2. The Complaint tails to allege or aver any facts or cite to any legal authority to support an award of punitive damages against the Defendants. 3. The Complaint fails to set forth any legally cognizable basis upon which the relief sought in the nature of punitive damages could be granted. II. Preliminary Obiection in the Nature of a Motion to Strike. 4. In its prayer for relief in all four Counts of the Complaint, the Plaintiffs seek recovery of punitive damages. /• 1 5. The Complaint fails to allege or aver any facts or cite to any legal authority to support an award of punitive damages against the Defendants. 6. Pa.R.C.P. 1019(a) requires a claimant to plead all material facts on which its cause of action is based. WHEREFORE, Defendants, Darren J. Zimmerman and Laban G. Zimmerman, Jr., respectfully request that this Honorable Court grant its Preliminary Objection in the nature of a demurrer and dismiss the Plaintiffs' claims for legal insufficiency and enter judgment on all counts in favor of the Defendants and against the Plaintiffs and/or in the alternative to strike the prayers for relief which request an award for punitive damages. Respectfully submitted, IRWIN, MCKNIGHT & HUGHES dga'd C,4A.,Aq-4n Mark D. Schwartz, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717 ) 249-2353 Supreme Court I.D. No. 70216 Date: Attorney for Defendants ?1999 /5 2 r. HUBERT J. BURYLO, and SUSAN J. BURYLO, his wife, PLAINTIFFS V. : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., DEFENDr.:'TS NO. 02989 CIVIL 1999 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Mark D. Schwartz, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document by first class United States Mail, postage prepaid in Carlisle, Pennsylvania, upon the following: Stephen J. Hogg, Esquire Law Offices of Stephen J. Hogg 19 South Hanover Street Suite 1.01 Carlisle, Pennsylvania 17013 Respectfully submitted, IRWIN, McKNIGHT & HUGHES By: A644 ?ZA4?? Mar D. Schwartz, Esquire Attorney for the Defendants West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 717-249-2353 Supreme Court I.D. No. 70216 Date: July 1Z ,1999 Ij. l„? (o ?? Ui;. r C) L 4 LJ J (.. )Cl, CV '_• J T (L y ? ICI CL O c U ?lw ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 99-2989 CIVIL TERM 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 TLEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.. ASSOCIATION CUMBERLAND 2 C UN Avenue LAWOFFCESOF Carlisle, Pennsylvania 17013 STEPHEN J• HOGG Telephone: (717) 249.3166 19S. HANOVER STREET SUITE 101 OARUSLE. PA 170* 17 (x V - ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, NO. 99-2989 and CIVIL TERM LABAN G. ZIMMERMAN, JR., Defendants JURY TRIAL DEMANDED AMENDED COMPLAINT COUNTI Robert J. Burylo V. Darren J. Zimmerman AND NOW, comes the Plaintiffs, Robert J. Burylo and Susan J. Burylo, by their attorney, Stephen J. Hogg, Esquire who file this Complaint as follows: 1. Plaintiff Robert J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 2. Plaintiff Susan J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 3. Defendant Darren J. Zimmerman, is and was at all times relevant to this complaint a minor child under the age of 21 who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. Uw OFFlCEB OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 dI. 4. Defendant Laban G. Zimmerman, Jr., is an adult individual who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. 5. Defendant Laban G. Zimmerman, Jr. is the owner of a 1986 Dodge Ram pickup truck, with Pennsylvania license plate # ZIi08167. 6. Plaintiff Robert J. Burylo is the owner of 1995 Chevrolet pickup truck, with Pennsylvania license plate # AC27250. 7. On or about June 3, 1997, at approximately 6:30 P.M., prevailing time the Plaintiff Robert J. Burylo was traveling north on State Route 34 in South Middletown Township, Cumberland County, near the intersection with State Route 174 at a lawful and appropriate rate of speed for the conditions, and with due regard for other vehicles on the road. 8. At the above referenced time and location, Defendant, Darren J. Zimmerman was operating Defendant Laban G. Zimmerman, Jr.'s vehicle with permission traveling east on State Route 174. 9. Defendant Darren J. Zimmerman failed to stop at the stop sign located on State Route 174 and proceeded directly into the intersection with State Route 34. 10. In the alternative, Defendant Darren J. Zimmerman stopped at the stop sign on State Route 174 but proceeded into the intersection with State Route 34 without ensuring the way was clear and without LAW OFFICES OF S'TEPFEEN J, HOGG regard to oncoming traffic. 18 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 2 -Ja, 11. Plaintiff Robert J. Burylo was traveling through the intersection with State Route 174 and had no traffic control device for traffic traveling north on State Route 34 through the said intersection with State Route 174. 12. The Zimmerman vehicle entered the above aforementioned intersection after failing to stop at the stop sign on State Route 174 or failing to ensure the way was clear and struck the rear driver's side of the Burylo vehicle. 13. Plaintiff Robert Burylo suffered serious and permanent injuries to his cervical and lumbar spine as a result of the aforementioned collision. 14. The aforementioned collision was the direct and proximate result of the carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman in that he: a. Failed to exercise reasonable care in the operation of his vehicle; b. Failed to operate his vehicle at a speed appropriate for the existing conditions; C. Failed to operate his vehicle while keeping a proper lookout for other vehicles on the highway; d. Failed to operate his vehicle with due regard for the rights and safety of Plaintiff Robert J. Burylo; e. Failed to yield the right of way to an approaching vehicle; uW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 3 ?J- p.. I f. Failed to proceed with due regard for oncoming traffic after stopping at a clearly marked stop sign; and g. Otherwise violated 75 Pa. CSA §3323(b) relating to Duties at Stop Signs. 15. The carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman, as aforesaid, was the direct and proximate cause of Plaintiff Robert J. Burylo's injuries as aforesaid. WHEREFORE, Plaintiff Robert J. Burylo demands judgment against Defendant Darren J. Zimmerman in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. COUNT II Robert J. Burylo V. Laban J. Zimmerman, Jr. LAW OFFICES OF SnPHEN J. HOGG - 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 16. Plaintiff Robert J. Burylo hereby incorporates paragraphs 1-15 as if fully set forth herein. 17. Defendant Laban J. Zimmerman, Jr. is jointly and severally liable with Defendant Darren J. Zimmerman for Plaintiff Robert J. Burylo's injuries in that Defendant Laban G. Zimmerman, Jr. was in control of the aforementioned Dodge pickup when he permitted Defendant Darren to operate it when he knew or should have known that Defendant Darren was competent to operate it. d s - 18. At the aforementioned time and place, Defendant Darren J. Zimmerman was the agent, servant and/or employee of Laban G. Zimmerman, Jr. and was acting within the course or scope of that agency, service or employment. 19. In the alternative, Defendant Laban G. Zimmerman, Jr. negligently entrusted the aforementioned motor vehicle owned by him to an operator he knew or should have known was not competent to operate a motor vehicle. WHEREFORE, Plaintiff Robert J. Burylo demands judgment against Defendant, Laban G. Zimmerman, Jr. in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. COUNT III Susan J. Buryto V. Darren J. Zimmerman uw OU CES Oc STUI mN J. HoGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 20. Plaintiff Susan J. Burylo hereby incorporates paragraphs 1-19 as if fully set forth herein. 21. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman as aforesaid, and due to the injuries sustained therefrom, Plaintiff Robert J. Burylo suffered permanent and severe injuries to his back, neck and spine, pain, headaches, loss of memory and loss of concentration and 5 has forever lost his earning capacity, the use of his whole body and his physical energy and health. 22. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman as aforesaid, Plaintiff Robert J. Burylo has been and will permanently continue to be delinquent in his conjugal duties toward Plaintiff Susan J. Burylo in that he is uncompanionable, irritable, indifferent and neglectful toward Plaintiff Susan Burylo who has thereby lost the consort, companionship, society, affection and support of her husband, Plaintiff Robert J. Burylo. WHEREFORE, Plaintiff Susan J. Burylo demands judgment against Defendant, Darren J. Zimmerman in an amount in excess of the limits Of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. LAW OFFCES OF SITJIMty J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 6 ?6. COUNT IV Susan J. Burylo V. Laban G. Zimmerman, Jr. LAW OFFrESOF srrrEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 23. Plaintiff Susan J. Burylo hereby incorporates paragraphs 1-22 as if fully set forth herein. 24. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Laban G. Zimmerman, Jr. as aforesaid, and due to the injuries sustained therefrom, Plaintiff Robert J. Burylo suffered permanent and severe injuries to his back, neck and spine, pain, headaches, loss of memory and loss of concentration and has forever lost his earning capacity, the use of his whole body and his physical energy and health. 25. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Laban G. Zimmerman, Jr. as aforesaid, Plaintiff Robert J. Burylo has been and will permanently continue to be delinquent in his conjugal duties toward Plaintiff Susan J. Burylo and uncompanionable, irritable, indifferent and neglectful toward Plaintiff Susan Burylo who has thereby lost the consort, companionship, society, affection and support of her husband, Plaintiff Robert J. Burylo. 7 WHEREFORE, Plaintiff Susan J. Burylo demands judgment against Defendant, Laban G. Zimmerman, Jr. in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. p , Date: 0 C Stephen . Hogg, ire Attorney for Plainti s 19 S. Hanover Street, Ste. 101 Carlisle, PA 17013 (717) 245-2698 LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 8 VERIFICATION I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. DAT R B 0 LAW OFFICES OF STEPHEN J. HOGG 19 S. H4NOVER STREET SUITE 101 CARLISLE. PA 17013 VERIFICATION I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. i DATE SUSAN J. B YLO UW OFFICES OF SUPMN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 IJO . _ ..,. .,, ?, ?'? .? ?. , - ? -- . ' ' ' _ -? , . _,: ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs : IN THE COURT : OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA V. CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, NO. 1999-02989 and LABAN G. ZIMMERMAN, JR., Defendants JURY TRIAL DEMANDED TO: Darren J. Zimmerman Laban G. Zimmerman Date: J? IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. 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 Ave e Carlisle, Pen syivania,,17013 (717) 249. Attorney for Plaintiffs / 1 1AWOFFCESOa 19 S. Hanover Street, Suite 101 STEPHEN). HOGG Carlisle, PA 17013 t 0 S. HANOVER STREET (717) 245-2698 SUITE 101 CARLISLE. PA 17013 J ?? CERTIFICATE OF SERVICE I, Stephen J. Hogg, Esquire, Attorney for the Plaintiff, hereby certify that I did on this day serve one true and correct copy of the attached Important Notice by United States Mail, postage pre-paid, addressed to the following: Mark D. Schwartz, Esq. Irwin, McKnight & Hughes 60 W. Pomfret Street Carlisle, PA 17013 I Date: 17 7 / r ?' UW OFFICES CF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 1?013 Attorney for Plaintiffs 19 S. Hanover Street, Suite 101 Carlisle, PA 17013 (717) 245-2698 C 7' ?:" Ilf - I- L? U- Ch ,0-11\ ROBERT J. BURYLO, and SUSAN J. BURYLO, his wife, Plaintiffs, V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants. : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2989 CIVIL 1999 CIVIL ACTION - LAW NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. IRWIN, cKNIGHT & HUGHES S- ark D. Schwartz, Esquire Supreme Court I.D. No. 70216 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendants, Darren J. Zimmerman Laban G. Zimmerman Date: September 13-11999 '® r' I, ROBERT J.BU-,aRYLOnd - SUSAN J. BURYLO, his wife, Plaintiffs, v. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2989 CIVIL 1999 CIVIL ACTION - LAW ANSWER OF DEFENDANTS WITH NEW MATTER TO THE PLAINTIFFS' COMPLAINT AND NOW, this j(3- day of September, 1999, come the Defendants, DARREN J. ZIMMERMAN and LABAN G. ZIMMERMAN, JR., by and through their attorneys, Irwin, McKnight & Hughes, and make the following Answer with New Matter to the Complaint filed by Plaintiffs, ROBERT J. BURYLO and SUSAN J. BURYLO, averring as follows: 1. The averments of fact contained in paragraph one (1) of the Complaint are admitted. 2. The averments of fact contained in paragraph two (2) of the Complaint are admitted. 3. The averments of fact contained in paragraph three (3) of the Complaint are admitted. 4. The averments of fact contained in paragraph four (4) of the Complaint are admitted. 1 J 5. The averments of fact contained in paragraph five (5) of the Complaint are admitted. 6. The averments of fact contained in paragraph six (6) of the Complaint involve facts which are within the sole knowledge and control of the Plaintiffs. They are therefore specifically denied and strict proof thereof is demanded at trial. 7. The averments of fact contained in paragraph seven (7) of the Complaint are specifically denied and strict proof thereof is demanded at trial. 8. The averments of fact contained in paragraph eight (8) of the Complaint are admitted. 9. The averments of fact contained in paragraph nine (9) of the Complaint are specifically denied. By way of further answer, to the contrary the minor Defendant Zimmerman did make a complete stop at the stop sign located on State Route 174 and he waited until he believed the road to be clear in both directions before attempting to cross the intersection. 10. The averments of fact contained in paragraph ten (10) are specifically denied. By way of further answer, not only did the minor Defendant Zimmerman make a complete stop at the sign 2 3 2 I.f .-. located on State Route 174, but he also waited until he believed the road to be clear in both directions before attempting to cross the intersection. 11. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of fact contained in paragraph eleven (i 1) so they are therefore specifically denied and strict proof thereof is demanded at trial. 12. The averments of fact contained in paragraph twelve (12) of the Complaint are `;,' specifically denied. See answers to paragraph nine (9) and paragraph ten (10) above which answers are incorporated herein by reference thereto. 13. The averments of fact contained in paragraph thirteen (13) of the Complaint are specifically denied and strict proof thereof is demanded at trial. 14. The averments contained in paragraph fourteen (14) of the Complaint are conclusions of law to which no response is required. To the extent that a response is required, the averments contained in paragraph fourteen (14) are specifically denied as follows, and strict proof thereof is demanded at trial: a. It is denied that the minor Defendant Zimmerman failed to exercise reasonable care in the operation of his vehicle. On the contrary, the minor Defendant Zimmerman was looking both ways for oncoming traffic before proceeding into the intersection. The Plaintiff failed to avoid striking the vehicle driven by the minor Defendant Zimmerman. 3 J ?. b. It is denied that the minor Defendant Zimmerman failed to operate his vehicle at an appropriate speed. On the contrary, he was traveling well below the speed limit as he was just acelarating from being at a complete stop at the intersection. C. It is denied that the minor Defendant Zimmerman failed to keep a proper lookout for other vehicles while operating his vehicle. On the contrary, the Plaintiff failed to keep a proper lookout for the vehicle of the minor Defendant Zimmerman. d. It is denied that the minor Defendant Zimmerman failed to operate his vehicle with due regard for the rights and safety of the Plaintiff. On the contrary, the minor Defendant Zimmerman did make a complete stop at the stop sign located on State Route 174 and he waited until he believed the road to be clear in both directions before attempting to cross the intersection. e. It is denied that the minor Defendant Zimmerman failed to yield the right of way to an approaching vehicle. On the contrary, the minor Defendant Zimmerman did make a complete stop at the stop sign located on State Route 174 and he waited until he believed the road to be clear in both directions before attempting to cross the intersection. f. It is denied that the minor Defendant Zimmerman failed to proceed with due regard for on coming traffic. On the contrary, the minor Defendant Zimmerman did make a complete stop at the stop sign located on State Route 174 and he waited until he believed the road to be clear in both directions before attempting to cross the intersection. g. It is denied that the minor Defendant Zimmerman otherwise violated 75 Pa.C.S.A. 3323(b). On the contrary, the minor Defendant Zimmerman did make a complete stop at the stop sign located on State Route 174 and he waited until he believed the road to be clear in both directions before attempting to cross the intersection in accord with the statute. 15. The averments contained in paragraph fifteen (15) of the Complaint are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 4 16. The above responses are incorporated herein as if fully set forth. 17. The averments contained in paragraph seventeen (17) of the Complaint are conclusions of law to which no response is required. To the extent that a response is required the averments are specifically denied and strict proof thereof is demanded at trial. 18. The averments contained in paragraph eightteen (18) of the Complaint are conclusions of law to which no response is required. To the extent that a response is required the averments are specifically denied and strict proof thereof is demanded at trial. 19. The averments contained in paragraph nineteen (19) of the Complaint are conclusions of law to which no response is required. To the extent that a response is required the averments are specifically denied and strict proof thereof is demanded at trial. 20. The above responses are incorporated herein as if fully set forth. 21. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of fact contained in paragraph twenty- one (21) so they are therefore specifically denied and strict proof thereof is demanded at trial. 22. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of fact contained in paragraph twenty- two (22) so they are therefore specifically denied and strict proof thereof is demanded at trial. 23. The above responses are incorporated herein as if fully set forth. 24. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of fact contained in paragraph twenty- four (24) so they are therefore specifically denied and strict proof thereof is demanded at trial. 25. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of fact contained in paragraph twenty- five (25) so they are therefore specifically denied and strict proof thereof is demanded at trial. 6 'I WHEREFORE, Defendants Darren I Zimmerman and Laban G. Zimmeran respectfully request that this Court enter a judgment in their favor and against Plaintiffs in this matter, Robert J. Burylo and Susan J. Burylo, together with reasonable costs. NEW MATTER 26. The averments of fact contained in the Answers to the Complaint are hereby incorporated by reference and are made part of this New Matter to the Complaint of the Plaintiffs. 27. On or about March 5, 1998, Plaintiff Robert J. Burylo brought a civil action in the Court of Common Pleas of Cumberland County, Pennsylvana, docketed No. 98-1217, against both Defendants for damages sustained during the incident on June 3, 1997, which incident is the same for which Plaintiffs now seek additional damages against Defendants. A copy of Plaintiff s complaint in the previous action is incorporated herein by reference and attached hereto as Exhibit "A". 28. On or about June 17, 1998, Plaintiff filed a Praecipe to Discontinue the prior action. A 4 copy of Plaintiffs Praecipe to Discontinue the previous action is incorporated herein by reference and attached hereto as Exhibit "B." 7 46. 29. Plaintiffs' instant action against Defendants is accordingly barred by the doctrine of res judicata. 30. Any acts or omissions of answering Defendants alleged to constitute negligence were not substantial causes or factors of the alleged incident and/or did not result in the injuries or losses alleged by the Plaintiffs. 31. The incident and/or damages described in Plaintiffs' Complaint may been caused by or contributed to by the Plaintiffs, and therefore Plaintiffs may have been contributorily negligent. 32. The incident, injuries and/or damages alleged to have been sustained by the Plaintiffs were not proximately caused by answering Defendants. 33. Plaintiffs' Complaint fails to state a cause of action upon which relief can be granted. 34. At the time of the alleged incident, Plaintiffs were bound by the limited tort option on their insurance coverage. 8 /t ' r--. 35. Plaintiffs' injuries do not amount to a "serious impairment of a bodily function," and therefore Plaintiffs are bound by their election of the limited tort option and non-economic damages are not recoverable. 36. The Plaintiffs may not have properly mitigated their damages. WHEREFORE, Defendants Darren J. Zimmerman and Laban G. Zimmeran respectfully request that this Court enter ajudgment in their favor and against Plaintiffs in this matter, Robert J. Burylo and Susan J. Burylo, together with reasonable costs. IRWIN, McKNIGHT & HUGHES By: Mark D. Schwartz, Esquire Supreme Court I.D. No. 70216 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendants, Darren J. Zimmerman Laban G. Zimmerman -(a Date: September, 1999 USCRIMUS`11MMMMAN.ANS 9 ` 1' The foregoing Answer with New Matter is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this Answer with New Matter and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. DARKEN MMES RMf Date: September 0,1999 LABAN G. ZIMM AN ?J, CERTIFICATE OF SERVICE I, Mark D. Schwartz, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Stephen J. Hogg, Esquire 19 South Hanover Street Suite 101 Carlisle, Pennsylvania 17013 '?&k Date: September, 1999 IRWIN, McKNIGHT & HUGHES -Z 6", 01"nZ1 Mark D. Schwartz, Esquire Supreme Court I.B. No. 70216 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendants, Darren J. Zimmerman Laban G. Zimmerman TMILLERTOILWCF.RTIFCATE OF SERVICE 4?. EXHIBIT "A" 7J ' John R. Ninosky, Esquire Allomoy I.D. No. 78000 GOLDBERG, KATZMAN & SHIPMAN, P,C, 320 Market Sirect P.O. Box 1268 Harrisburg, PA 17108.1268 Telephone: (717) 234A 161 ROBERTI.BURYLO 731 Torway Road Gardners, Pennsylvania 17324 Plaintiff V. DARREN J. ZDAMmRMAN 162 East Old York Road Carlisle, Pennsylvania 17013 and LA13AN G. ZD&AERMAN, JR. 162 East Old york Road Carlisle, Pennsylvania 17013 Defendants Attorneys for Plaintiff IN THE COURT 0--F----- MMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE 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 ,-vithout ftlrther 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 CAN GET LEGAL HELP. Ct CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 (717) 249 3166 In RUE t?Y FROM REC)OaD viod the mh ' I here u f of o -4 n. I r 46, r.-, Le ban demandado a usted en la torte. Si usted quiere defenderse de cstas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la cone en forma escrita sus defensas o sus objectiones a Jas demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notification y por cualquier qujr, o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO DAMEDIATAMENTE. SI NO TIENE ABOGADO O 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 AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. COURT ADMINISTRATOR OF CUMBERLAND COUNTY Cumberland County Courthouse One Courthouse Square, Fourth Floor Carlisle, PA 17013-3357 (717) 240-6200 47, 1 ,;..I John R. Ninosty, Esquire Attorney I.D. No. 78000 1 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone; (717) 2344161 Attorneys for Plaintiff' ROBERT J. BURYLO : IN THE COURT OF COMMON PLEAS 731 Torway Road Gardners, Pennsylvania 17324 : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW V. DARREN J. ZIflvffiRMAN NO. 162 East Old York Road Carlisle, Pennsylvania 17013 and LA13AN G. ZWI ERMAN, JR. i 162 East Old York Road i Carlisle, Pennsylvania 17013 : JURY TRIAL DEMANDED I Defendants i COMPLAINT AND NOW, comes the Plaintiff, Robert J. Burylo, by and through his attorneys, Goldberg, Katzman and Shipman, P.C., who file this Complaint by respectfully stating the following: 1. Plaintiff, Robert J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. ?T (?' /--II, 2, Defendant, Darren J. Zimmerman, is an adult individual who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Laban G. Zimmerman, Jr., is an adult individual who resides at 162 East Old York road, Carlisle, Cumberland County, Pennsylvania 17013. 4. Defendant Laban G. Zimmerman, Jr. is the owner of a. 1986 Dodge Ram pickup truck, with Pennsylvania license plate number ZH08167. 5. Plaintiff is the owner of a 1995 Chevrolet pickup truck, with Pennsylvania license plate number ZC27250. 6. On June 3, 1997, at approximately 6:30 p.m., Plaintiff was traveling north on State Route 34 in South Middletown Township, Cumberland County, near the intersection with State Route 174. 7. At the intersection of State Route 34 ("Holly Pike") and State Route 174 ("Old York Road"), State Route 34 is a thruv:ay, and vehicles traveling along State Route 174 must stop prior to entering the intersection with State Route 34. 2 '17 ` 8. At the above-referenced time and location, Defendant Darren Zimmerman was operating Defendant Laban Zimmerman's vehicle with permission east on State Route 174. 9. Defendant Darren Zimmerman failed to stop at the stop sign located on State Route 174 and proceeded into the intersection with State Route 34. The Zimmerman vehicle then collided with Plaintiffs vehicle. 10. As a result of the accident, Plaintiff has suffered damages in the amount of $4,144.51. COUNTi Robert J. Burylo V. Darren J. Zimmerman 11. Plaintiff hereby incorporates paragraphs 1 though 10 as though fully set forth herein at length. 12. The collision between Plaintiffs vehicle and the vehicle operated by Darren J. Zimmerman was directly and proximately caused by the carelessness, negligence and/or recklessness of Defendant Zimmerman in that he: a. failed to exercise reasonable care in the operation of his vehicle; 3 u?. r? b. operated his vehicle at a speed too great for the existing conditions; C. failed to be alert and keep a proper lookout for other vehicles on the roadway; d. drove his vehicle inattentively with regard to the rights and safety of Plaintiff, C. failed to yield the right of way to an approaching vehicle; f. failed to stop at a clearly marked stop sign; and g. violated 75 Pa. C.S.A. §3323(b). 13. The carelessness, negligence and/or recklessness of Defendant Darren I Zimmerman, as aforesaid, directly and proximately caused Plaintiff to suffer damages in the amount of $4,144.51. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in the amount of $4,144.51 together with interest from the date of the accident, costs of suit, and delay damages pursuant to Pa. R. C. P. 238, which is an amount requiring submission to compulsory arbitration. 4 COUNT I( Robert J. Burylo V. Laban G. Zimmerman Ir 14. Plaintiff hereby incorporates paragraphs 1 though 13 as though fully set forth herein at length. 15. At the time and place aforesaid, Defendant Darren J. Zimmerman was the agent, servant and/or employee of Defendant Laban G. Zimmerman, Jr. and was acting within the course or scope of that agency or employment. 16. In the alternative, Defendant Laban G. Zimmerman, Jr. negligently entrusted a motor vehicle to an operator who he knew or should have known was not competent to operate motor vehicle. 17. Based upon the foregoing, Plaintiff is entitled to recovery from Defendant Laban G. Zimmerman, Jr., in the amount of $4,144.51. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in the amount of $4,144.51 together with interest from the date of the accident, costs of suit, and 5 J delay damages pursuant to Pa. R.C. P. 238, which is an amount requiring submission to compulsory arbitration. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: Jo I? t C/ 7oh Ninosky, Esquire Attorney 1. D. No. 78000 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: Attorney for Plaintiff o 6 J ?l r. ROBERT I BURYLO, hereby certify that I am the Plaintiff in this action, that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. i I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. R BERT I BIIRYLO DATE; J? EXHIBIT "B" John R. Ninosky, Esquire Attorney I.D. No. 78000 GOLDBERG, KATZMAN & SIIIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 Attorneys for Plaintiff ROBERT J.BURYLO Plaintiff IN TITS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. LABAN G. ZIMMERMAN, JR. and DARREN J. ZIMMERMAN Defendants NO. 98-1217 JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF ADAMS COUNTY: Kindly mark the above-captioned action settled and discontinued on the docket. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. 13y: 4z x r John R Ninosky, Esquire Attorney I. D. No. 78000 320 Market Street 11.0. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff DATE//?/y8 TRUE COPY FROM RECORD to Testi whcreatClo ha a unto ?? and the Thl dd?j ?? ? vrothonota c) ,n n ?-' ;? - .._ -?, ?; .z; i •J J ?. e, ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. IN THE COURT : OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, NO. 1999-02989 and LABAN G. ZIMMERMAN, JR., Defendants JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO NEW MATTER 26. The averments contained in Defendant's answers to the Complaint are specifically denied and in further response, Plaintiffs cite the allegations in the Complaint in paragraph 1-25 inclusive. 27. Denied. Plaintiff Robert J. Burylo filed a civil claim on March 4, 1998 at No. 98-1217 in the Court of Common Pleas of Cumberland County, Pennsylvania against both Defendants for property damage only. LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 28. Admitted. 29. Denied. It is specifically denied that Plaintiffs current claim against Defendants is barred by the doctrine of res judicata. The prior property damage claim was apparently resolved by the payment of an unknown amount in property damages and a release was executed specifically reserving to the Plaintiffs the right to pursue any personal injury damage claim. ,? y a?W 30. Denied. It is specifically denied that the Defendants negligence, recklessness and carelessness was not the substantial cause of the collision on June 3, 1997 or that such negligence, recklessness and carelessness was not the substantial cause of Plaintiff Robert J. Burylo's injuries or damages. 31. Denied. It is specifically denied that the Plaintiffs were contributorily negligent in causing the collision on June 3, 1997 or in causing Plaintiff Robert J. Burylo's injuries or damages. 32. Denied. Refer to paragraph 31. 33. Denied. 34. Admitted. 35. Denied. Plaintiff Robert J. Burylo suffered a serious impairment of bodily function as a result of the collision caused by Defendants negligence, carelessness and recklessness. 36. Denied. Wherefore, Plaintiff respectfully requests Judgment in their favor and against Defendants as requested in the original complaint. Date: Stephen J. Hogg, E 6 Attorney for Plaintiff 19 S. Hanover St. Ste. 101 Carlisle, PA 17013 (717) 245-2698 uW OFFrAS OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 2 gip. VERIFICATION LAW OFF CES OF STEPHEN J. HOGG 10 S. NANOVER STREET SUITE 101 CARLISLE, PA 17013 I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. 9-zv-y9 DATE SUSAN J. BURYLV 61. VERIFICATION I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. DATE 0 RT RYL LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 CERTIFICATE OF SERVICE '., Stephen J. Hogg, Esquire, Attorney for the Plaintiff, hereby certify that I did on this day serve one true and correct copy of the attached Plaintiffs Answer To New Matter by United States Mail, postage pre-paid, addressed to the following: Mark D. Schwartz, Esq. Irwin, McKnight & Hughes 60 W. Pomfret Street Carlisle, PA 17013 i Date: t` Step eh J. Hogg, V Attorney for Plaintiff 19 S. Hanover Street, Suite 101 Carlisle, PA 17013 (717) 245-2698 LAW OFFICES OF S[E EN; 'i( 19s. HANOVER STREET SUITE 101 CARLISLE, PA 17013 lL?' Cr y ? l:L f u. = Cam !-? . U ?r T - V: L C1 a% p? e` ) r' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument court. CAPTION OF CASE (entire caption must be stated in full) Robert J. Burylo and Susan J. Burylo, Husband and Wife V5. (Plaintiff) Darren J. Zimmerman, a minor and Laban G. Zimmerman, Jr. (Defendant) No. 99-2989 Civil 19 99 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant°s demurrer to complaint, etc.): Defendant's New Matter raises defense of res judicata by reason of a prior action involving similar parties 2. Identify counsel who will argue case: (a) for plaintiff: Stephen J. Hogg, Esquire Address: 19 S. Hanover Street, Suite101 Carlisle, PA 17013 (b) for defendant: Mark D. Schwartz, Esquire Address: Irwin, McKnight & Hughes 60 W. Pomfret Street Carlisle, PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 8, 1999 / Stephen J. H4 99Es , e Dated: November 18, 1999 Attorney for Plainti ti ?- =: ?, ? ? r? ?? -; ,i_ ? _' :? i ? `??J 1 1. _ -. ?.' 4i ? yy </) -.J ?.?: . t i > . _ l ? ? ''? U r"1 . , 1 r' ROBERT J. BURYLO, and : IN THE COURT OF COMMON PLEAS OF SUSAN J. BURYLO, Its wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, V. NO. 2989 CIVIL 1999 DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants. CIVIL ACTION - LAW DEFENDANTS, DARREN J. ZIMMERMAN'S AND LABAN G. ZIMMERMAN, JR. MOTION FOR SUMMARY JUDGMENT PURSUANT TO Pa R C P 1035 AND NOW comes the Defendant, Darren J. Zimmerman, a minor, and Laban G. Zimmerman, Jr. by its counsel and moves this Court for entry of summary judgment to Pa.R.C.P. 1035 based on the following: 1. On or about May 19, 1999, Plaintiff initiated the instant action by the filing of a Complaint which alleged that on or about June 3, 1997, Plaintiff was injured when Defendant's vehicle struck Plaintiff's vehicle as Plaintiff was driving north on Route 34 in Cumberland County, Pennsylvania. 2. At the time of the accident, Defendant Darren J. Zimmerman, a minor, was driving the vehicle that struck Plaintiff in the aforesaid manner. 3. At the time of the accident, the vehicle in question was owned by Defendant Laban G. Zimmerman, Jr. c 4. At the time of the accident, the Defendant Darren J. Zimmerman was a licensed driver and was insured through the Weaverland Mennonite Aid Plan. 5. On or about March 4, 1998, Plaintiff, Robert J. Burylo instituted an action against the same above-captioned Defendants (hereinafter "Burylo 1") by filing a Complaint seeking "damages" in the amount of $4,144.51 alleging that Plaintiff suffered damages when Defendant's vehicle struck Plaintiff's vehicle as Plaintiff was driving north on Route 34 in Cumberland County, Pennsylvania. A copy of said Complaint is marked as Exhibit "A" and is incorporated herein by reference thereto. 6. While Plaintiffs Complaint in Burylo I dated March 4, 1998 indicated that Plaintiff suffered damages in the amount of $4,144.51, it did not indicate the type of damages suffered by Plaintiff in the accident. 7. Burylo I was settled between the parties and a Praecipe to Settle and Discontinue was filed on or about June 17, 1998. A copy of said Praecipe is attached as Exhibit "B" and is incorporated herein by reference thereto. 8. The instant action (hereinafter "Burylo 11") was commenced with the filing of a Complaint on or about May 19, 1999. A copy of said Complaint is attached hereto as Exhibit °C" and is incorporated herein by reference thereto. 66 % ' 9. In paragraph 13 of Plaintiffs Complaint in Burylo II, Plaintiff alleges that he "suffered serious and permanent injuries" as a result of the automobile accident at issue. 10. Plaintiff Burylo received immediate medical treatment the day of the accident as he was transported to Carlisle Hospital via ambulance. A copy of the Carlisle Hospital I Emergency Room record dated June 3, 1997, is attached hereto as Exhibit "D" and is incorporated herein by reference thereto. 11. Plaintiff Burylo was then treated by Dr. David Wampler, M.D. who referred Plaintiff to physical therapy at Alexander Spring Rehab, Inc. which began on or about June 10, 1997. A copy of the initial evaluation done by Alexander Spring Rehab is attached hereto as Exhibit "E" and is incorporated herein by reference thereto. 12. Plaintiff sought medical treatment from various medical providers including Stephen K. Powers, M.D., a neurosurgeon at the Milton S. Hershey Medical Center from the date of the accident through the filing of the Complaint in Burylo I on March 4, 1998. A copy of a letter from Dr. Stephen K. Powers to Dr. David Wampler dated June 20, 1997, is attached hereto as Exhibit "F" and is incorporated herein by reference thereto. 13. Plaintiff knew at or prior to the filing of the Complaint in Burylo I on March 4, 1998, that he suffered physical injuries as a result of the automobile accident at issue. 3 W l 14. Plaintiff Burylo had the opportunity in Burylo I to claim, raise and attempt to secure a recovery for all damages suffered as a result of the accident at issue including recovery for personal injuries. 15. The Complaint in Burylo I was filed on March 4, 1998, some 9 months after the date of the accident 16. The instant action, commenced with the filing of the Complaint dated May 19, 1999, is barred from litigation due to the doctrine of Res Judicata as expressed in Spinelli v. Maxwell, 243 ,A.2d 425 (Pa. 1968). WHEREFORE, Defendants Darren J. Zimmerman and Laban G. Zimmerman, Jr. respectfully request this Honorable Court to enter summary judgment in their favor and against the Plaintiffs on all claims and counts raised in the Complaint. IRWI , McKNIGHT & HUGHES By: Mark D. Schwartz, Esquire Supreme Court I.D. No. 70216 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendants, Darren J. Zimmerman Laban G. Zimmerman, Jr. i Date: November IS 1999 4 {p 0 EXHIBIT "A" /' John R. Ninosky, Esquirc Attorney I.D. No. 78000 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Markct Slrect - P.O. Box 1268 Ilarrisburg, PA 17108.1268 Telephone: (717) 234A 161 ROBERT 1.BURYLO 731 Torway Road Gardners, Pennsylvania 17324 Plaintiff V. DARREN J. ZIMMERMAN 162 East Old York Road Carlisle, Pennsylvania 17013 and LABAN G. ZIMMERMAN, JR. 162 East Old york Road Carlisle, Pennsylvania 17013 Defendants Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. '-'XCL JURY TRIAL DEMANDED NOTICE 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 CAN GET LEGAL HELP. Ct CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 (717) 249 3166 TRUE G4PY FROM RE-OORp intj the Nrh .Of, I here urno sit rry tWW 11 h 431pwl* Of ? I/ 11 70. 11 1 TI 1 Le han demandado a usted en la cone. 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 cone en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN A130GADO IMMEDIATAMENTE. SI NO TIENE ABUGADO 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 AVERIGUAR DONDE SE PUEDE CONSEGUIR ASIST'ENCIA LEGAL. COURT ADMINISTRATOR OF CUMBERLAND COUNTY Cumberland County Courthouse One Courthouse Square, Fourth Floor Carlisle, PA 17013-3357 (717) 240-6200 W. n r John R. Ninosky, Esquire Allonrcy I.D. No. 78000 GOLDBERG, KATZMAN a SHIPMAN, P.C. 320 Markel Street P.O. Doc 1268 Harrisburg, PA 17108.1268 Telephone: (717) 2344161 ROBERT 1.BURYLO 731 Torway Road Gardners, Pennsylvania 17324 Plaintiff V. DARREN J. Z11bIIvIERMAN 162 East Old York Road Carlisle, Pennsylvania 17013 and LA13AN G. ZIMMERMAN, JR. 162 East Old York Road Carlisle, Pennsylvania 17013 Defendants Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED GOA7PLAINT AND NOW, comes the Plaintiff, Robert J. Burylo, by and through his attorneys, Goldberg, Katzman and Shipman, P.C., who file this Complaint by respectfully stating the following; 1. Plaintiff, Robert J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 1A 2. Defendant, Darren J. Zimmerman, is an adult individual who resides at 162 Last Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Laban G. Zimmerman, Jr., is an adult individual who resides at 162 East Old York road, Carlisle, Cumberland County, Pennsylvania 17013. 4. Defendant Laban G. Zimmerman, Jr. is the owner of a 1986 Dodge Rain pickup truck, with Pennsylvania license plate number ZH08167. 5. Plaintiff is the owner of a 1995 Chevrolet pickup truck, with Pennsylvania license plate number ZC2 7250. 6. On June 3, 1997, at approximately 6:30 p.m., Plaintiff was traveling north on State Route 34 in South Middletown Township, Cumberland County, near the intersection with State Route 174; 7. At the intersection of State Route 34 ("Holly Pike") and State Route 174 ("Old fork Road"), State Route 34 is a thruway, and vehicles traveling along State Route 174 must stop prior to entering the intersection with State Route 34. 7 11 1 8. At the above-referenced time and location, Defendant Darren Zimmerman was operating Defendant Laban Zimmerman's vehicle with permission east on State Route 174. 9. Defendant Darren Zimmerman failed to stop at the stop sign located on State Route 174 and Proceeded into the intersection with State Route 34. The Zimmerman vehicle then collided with Plaintiffs vehicle. 10. As a result of the accident, Plaintiff has suffered damages in the amount of $4,144.51. -COUNTI Robert J. Burylo V. Darren_ J. Zimmerman 11. Plaintiff hereby incorporates paragraphs 1 though 10 as though fully set forth herein at length. 12. The collision between Plaintiffs vehicle and the vehicle operated by Darren J. Zimmerman was directly and proximately caused by the carelessness, negligence and/or recklessness of Defendant Zimmerman in that he: a. failed to exercise reasonable care in the operation of his vehicle; 3 `74. b, operated his vehicle at a speed too great for the existing conditions; C. failed to be alert and keep a proper lookout for other vehicles on the roadway; d. drove his vehicle inattentively with regard to the rights and safety of Plaintiff; e. failed to yield the right of way to an approaching vehicle; f. failed to stop at a clearly marked stop sign; and g. violated 75 Pa. C.S.A. §3323(b). 13. The carelessness, negligence and/or recklessness of Defendant Darren I Zimmerman, as aforesaid, directly and proximately caused Plaintiff to suffer damages in the amount of $4,144.51. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally in the amount of $4,144.51 together with interest from the date of the accident, costs of suit, and delay damages pursuant to Pa. R. C. P. 238, which is an amount requiring submission to compulsory arbitration. 4 7s- r1 ? COUNT TT Robert I Burylo V. Laban G. Zimmerm.3n Tr 14. Plaintiff hereby incorporates paragraphs 1 though 13 as though fully set forth herein at length. 15. At the time and place aforesaid, Defendant Darren J. Zimmerman was the agent, servant and/or employee of Defendant Laban G. Zimmerman, Jr. and was acting within the course or scope of that agency or employment. 16. In the alternative, Defendant Laban G. Zimmerman, Jr. negligently entrusted a motor vehicle to an operator who he knew or should have known was not competent to operate motor vehicle. IT Based upon the foregoing, Plaintiff is entitled to recovery from Defendant Laban G. Zimmerman, Jr., in the amount of $4,144.51. WHEREFORE, Plaintiff demandsjudgment against the Defendants jointly and severally in the amount of $4,144.51 together with interest from the date of the accident, costs of suit, and 5 `7l0- delay damages pursuant to Pa. R.C. P. 238, which is an amount requiring submission to compulsory arbitration. DATE: ly Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: - /I- A/i,.&?iA 7ol Ninosky, Esquire V Attorney I. D. No. 78000 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiff o 6 `7 7 I, ROBERT I BURYLO, hereby =* that I am the Plaintiff in this action, that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. R BERT J. BURYLO DATE: '7 8l' EX I-IT 6699 7qr John R. Ninosky, Esquire Attorney I.D. No. 78000 GOLDBERG, KATZMAN & SHIMILN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 ROBERT J.BURYLO Plaintiff Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. LABAN G. ZIvIMERMA3N, JR. and DARREN J. ZIMMERMAN Defendants NO. 98-1217 JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF ADAMS COUNTY: Kindly mark the above-captioned action settled and discontinued on the docket. Respectfully submitted, GOLDBERG, K&TZMAN & SHIPMAN, P.C. By: 4z le A4W4 John R/Ninosky, Esquire Attorney I. D. No. 78000 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: 6/11/8 Attorneys for Plaintiff ?D? EXHIBIT "C" Sol. ROBERT J.BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 99-2989 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO DEFEND 11 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 TLEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION uwoFMCSOF 2 Liberty Avenue fEPHENJ.HOGG Carlisle, Pennsylvania 17013 S. HANOVER STREET Telephone: (717) 249-3166 SUITE 101 CARLISLE, PA 17013 ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, : NO. 99-2969 and : CIVIL TERM LABAN G. ZIMMERMAN, JR., Defendants JURY TRIAL DEMANDED AMENDED COMPLAINT COUNTI LAW OFFICES OF 'LPHLN J. HOGG S. HANOVER STREET > SUITE 101 CARLISLE, PA 17013 Robert J. Buryio V. Darren J. Zimmerman AND NOW, comes the Plaintiffs, Robert J. Burylo and Susan J. Burylo, by their attorney, Stephen J. Hogg, Esquire who file this Complaint as follows: 1. Plaintiff Robert J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 2. Plaintiff Susan J. Burylo, is an adult individual who resides at 731 Torway Road, Gardners, Adams County, Pennsylvania 17324. 3. Defendant Darren J. Zimmerman, is and was at all times relevant to this complaint a minor child under the age of 21 who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013. J. U hs' 4. Defendant Laban G. Zimmerman, Jr., is an adult individual who resides at 162 East Old York Road, Carlisle, Cumberland County, Pennsylvania 17013, 5. Defendant Laban G. Zimmerman, Jr. is the owner of a 1986 Dodge Ram pickup truck, with Pennsylvania license plate # ZH08167. 6. Plaintiff Robert J. Burylo is the owner of 1995 Chevrolet pickup truck, with Pennsylvania license plate # AC27250. 7. On or about June 3, 1997, at approximately 6:30 P.M., prevailing time the Plaintiff Robert J. Burylo was traveling north on State Route 34 in South Middletown Township, Cumberland County, near the intersection with State Route 174 at a lawful and appropriate rate of speed for the conditions, and with due regard for other vehicles on the road. UW OFFICESOF 'GPHEN J. HOGG IS. HANOVER STREET SUITE 101 CARLISLE. PA 17013 8. At the above referenced time and location, Defendant, Darren J. Zimmerman was operating Defendant Laban G. Zimmerman, Jr.'s vehicle with permission traveling east on State Route 174. 9. Defendant Darren J. Zimmerman failed to stop at the stop sign located on State Route 174 and proceeded directly into the intersection with State Route 34. 10. In the alternative, Defendant Darren J. Zimmerman stopped at the stop sign on State Route 174 but proceeded into the intersection with State Route 34 without ensuring the way was clear and without regard to oncoming traffic. 2 Y/ .._. . ... ., t .. - w. ice.. f 11. Plaintiff Robert J. Burylo was traveling through the intersection with State Route 174 and had no traffic control device for traffic traveling I north on State Route 34 through the said intersection with State Route 1 174. 12. The Zimmerman vehicle entered the above aforementioned intersection after failing to stop at the stop sign on State Route 174 or failing to ensure the way was clear and struck the rear driver's side of the Burylo vehicle. 13. Plaintiff Robert Burylo suffered serious and permanent injuries to his cervical and lumbar spine as a result of the aforementioned collision. 14. The aforementioned collision was the direct and proximate result of the carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman in that he: a. Failed to exercise reasonable care in the operation of his vehicle; b. Failed to operate his vehicle at a speed appropriate for the existing conditions; C. Failed to operate his vehicle while keeping a proper lookout for other vehicles on the highway; d. Failed to operate his vehicle with due regard for the rights and safety of Plaintiff Robert J. Burylo; e. Failed to yield the right of way to an approaching vehicle; UwOFFMSOF WHEN J. HOGG S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 3 V. f. Failed to proceed with due regard for oncoming traffic after stopping at a clearly marked stop sign; and g. Otherwise violated 75 Pa. CSA §3323(b) relating to Duties at Stop Signs. 15. The carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman, as aforesaid, was the direct and proximate cause of Plaintiff Robert J. Burylo's injuries as aforesaid. WHEREFORE, Plaintiff Robert J. Burylo demands judgment against Defendant Darren J. Zimmerman in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 236 and any other remedy determined to be appropriate by the Court. COUNT II Robert J. Burylo V. Laban J. Zimmerman, Jr. 16. Plaintiff Robert J. Burylo hereby incorporates paragraphs 1-15 as if fully set forth herein. 17. Defendant Laban J. Zimmerman, Jr. is jointly and severally liable with Defendant Darren J. Zimmerman for Plaintiff Robert J. Burylo's injuries in that Defendant Laban G. Zimmerman, Jr. was in control of the aforementioned Dodge pickup when he permitted Defendant Darren to operate it when he knew or should have known that Defendant Darren LAW OFFUS OF IEPHrN J. HOGG was competent to operate it. S. HANOVER STREET SUITE 101 CARUSLE. PA 17013 4 G/ 18. At the aforementioned time and place, Defendant Darren J. Zimmerman was the agent, servant and/or employee of Laban G. Zimmerman, Jr. and was acting within the course or scope of that agency, service or employment. 19. In the alternative, Defendant Laban G. Zimmerman, Jr. negligently entrusted the aforementioned motor vehicle owned by him to an operator he knew or should have known was not competent to operate a motor vehicle. WHEREFORE, Plaintiff Robert J. Burylo demands judgment against Defendant, Laban G. Zimmerman, Jr. in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. COUNT III Susan J. Burylo V. Darren J. Zimmerman LAW OFFICESOF 'LPIi(LN J. NOGG )S- HANOVER STREET SUITE 101 CARLISLE, PA 17013 20. Plaintiff Susan J. Burylo hereby incorporates paragraphs 1-19 as if fully set forth herein. 21. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman as aforesaid, and due to the injuries sustained therefrom, Plaintiff Robert J. Burylo suffered permanent and severe injuries to his back, neck and spine, pain, headaches, loss of memory and loss of concentration and 5 V f t has forever lost his earning capacity, the use of his whole body and his physical energy and health. 22. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Darren J. Zimmerman as aforesaid, Plaintiff Robert J. Burylo has been and will permanently continue to be delinquent in his conjugal duties toward Plaintiff Susan J. Burylo in that he is uncompanionable, irritable, indifferent and neglectful toward Plaintiff Susan Burylo who has thereby lost the consort, companionship, society, affection and support of her husband, Plaintiff Robert J. Burylo, WHEREFORE, Plaintiff Susan J. Burylo demands judgment against Defendant, Darren I Zimmerman in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. iAWOFFILESOF GPHEN j. HOGG 7 S, HANOVER STREET SUITE 101 CARLISLE, PA 17013 6 fig. r., / . COUNT IV Susan J. Burylo V. Laban G. Zimmerman, Jr. 23, Plaintiff Susan J. Burylo hereby incorporates paragraphs 1-22 as if fully set forth herein. 24. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Laban G. Zimmerman, Jr. as aforesaid, and due to the injuries sustained therefrom, Plaintiff Robert J. Burylo suffered permanent and severe injuries to his back, neck and spine, pain, headaches, loss of memory and loss of concentration and has forever lost his earning capacity, the use of his whole body and his physical energy and health. 25. As a direct and proximate result of the acts of carelessness, negligence and/or recklessness of Defendant Laban G. Zimmerman, Jr. as aforesaid, Plaintiff Robert J. Burylo has been and will permanently I continue to be delinquent in his conjugal duties toward Plaintiff Susan J Burylo and uncompanionable, irritable, indifferent and neglectful toward Plaintiff SLlsan Burylo who has thereby lost the consort, companionship, society, affection and support of her husband, Plaintiff Robert J. Burylo. LAW OFFICE90F .TPHEN J.110GG S. HANOVER STREET SUITE 101 CARUSLE. PA 17013 ?1. LAW OMCES OF 'EPHENJ. HOGG ) S. HANOVER WREET SUITE 101 CARLISLE. PA 17013 1 WHEREFORE, Plaintiff Susan J. Burylo demands judgment against Defendant, Laban G. Zimmerman, Jr. in an amount in excess of the limits of compulsory arbitration together with interest from the date of the accident, costs and delay damages pursuant to Pa. R.C.P. 238 and any other remedy determined to be appropriate by the Court. Date: Sfe e p n. J. Hogg, ire Attorney for Plainti s? 19 S. Hanover Street, Ste. 101 Carlisle, PA 17013 (717) 245-2698 8 w. LAW OU"S OF rEPHEN J,110GG 9 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 VERIFICATION I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. BAT j R R .B L04 `, I. r. VERIFICATION I verify that the statements made in this Complaint to the Court of Common Pleas of Cumberland County, Pennsylvania, are true and correct. I understand that false statements herein are made subject to the penalties of 19 Pa. Section 4904, relating to unsworn falsifications to authorities. DATE SUSAN J. B YLO I UW OFFICES OF fEPHEN J. IIOGG 9S.HANOVER STREET SUITE 101 CARLISLE, PA 17013 1 o?- EXHI IT GG ?? BURYLO, ROBERT J. MR #113972 0610311997 CHIEF COMPLAINT: Motor vehicle accident. HISTORY OF PRESENT ILLNESS: Mr. Burylo is a 45-year-old Caucasian male who was a restrained patie(on ofnot the truck at high speed , severe t driver R a large pickup truck which was hit in the e rear bed port enough to cause disruption of the axle of his pickup truck. The lains of left neck pain. He strike his head anywhere but was jerked around in the car. He now c mp was resrained. He did not the distribu ness. also complains some lesidas ornweakness. He hadsnonloss of c nsciousness.sHe has norabdomi- The patient has n no paresth - clear nal or pelvic pain. ed well- alert male, ian on his left h as some tendwith sen PHYSICAL EXAMINATION: A There arehno rashes CauHcas sorium. SKIN: Warm and dry. clavicle vicle and across the left side of his pecloraiis area and chest wall. LUNGS: Clear to auscultation. crepitu There is obvious ie n laterral cabrasion. ompressionl of his chests His radial pulseseare syMEN: mmetr cal. nontender. r. pe has no o pain the left sternocleidomastotd muscle and his left trapezius NECK: He ha. no tenderness has tenderness along Muscle. in the low backs Hehas full range of motion of all of his extremities. His molorlsensory examination is normal with all his motor and sensory function checked. HEAD: Normocephalic, atraumatic. Pupils are equal and reactive. LUNGS: Clear to auscultation. HEART: Regular rate and rhythm without murmur. ABDOMEN: Soft and nontender. bot ch were negative DATA BASE: The patient was sent for a cervical spine and chest x-raj, as interpreted_ by me. the e ergency rt- EMERGENCY DEPARTMENT COURSE: He was started the on Vicodin here i days followed bydepat ment and sent home with Motrin. He is to apply ice to sore areas 2 head. Follow up at his family doctor and return to the ER if worse. and low back secondary to MVA. FINAL DIAGNOSES: Strain of wall CONDITION AT DISCHARGE: improved. TCF/mrf D: 06/0311997 - 06:57 pm T:06!1211997 CARLISLE HOSPITAL Thomas C. Falvo, D.O. page 1 of 1 g?FiV r11 :?.:y EXHIB"IT "E" C ALEEANdEli SPRING REHAB, INC -- 27 Brookwood Avenue Carlisle, Pennsylvania 17013 (717) 245-23.41-. THIS INFORMATION IS FOR YOUR RECORDS. THANK YOU FOR YOUR REFERRAL **INITIAL EVALUATION" PATIENTt Robert Burylo DIAGNOSIS: Neck & back sprain] possible degen. disc lumbar opine BIRTH DATE: 06/10/97 DATE PT INITIATED: 06/10/97 PHYSICIAN: David Wampler, M.D. PATIENT ID6: 513398 St Pt. is a 45 yr. old male referred to PT by Dr. Wampler for evaluation following neck &.back sprain from auto accident 06/03/97. Pt. is known to this dept. from outpt. PT for L rotator cuff impingement. Past medical hx includes low back dysfunction since 1983 when he was hurt at work when 880 lb. drum fell down & he caught it. Pt. has been on disability from back injury since 1983. In Jan. of 1997 pt. had discectomy lumbar spine. Pt. reports following this surgery he continued to have pain in the low back but to a leeeet degree & had onset of pain in both anterior thighs. Pt. then was involved in an auto accident on 06/03/97 which greatly aggravated low back pain & started neck pain. Pt.'s chief c/o pain in across the low back & in both anterior thighs. Pt. rates this pain as an 8-9/10. Pt. also c/o pain L neck & a constant: headache which is at a pain level of 7/10. Pt. has mild forward head & significantly decreased lumbar lordosis. In standing cervical ROM: Flexion 508, extension 508, eidebend L 258, eidebend R 508, rotation L 758, rotation R 908. Compression of cervical spine is positive. In standing, lumbar ROM: Flexion 258, extension 08, eidebend L 259, eidebend R 508. L SLR positive at 200, R SLR positive at 350. Neck flex- ion is negative. SLRs are positive in supine & sitting. There is pelvic asymmetry with R ASIS higher, R leg short. Pt. reports pain is increased by prolonged sitting or bending. Pt. reports sitting tolerance is less than 30 min.. Cough & sneeze are negative. Pain in de- creased by lying down. Pt. does reports he sleeps on & off. Pt. reports functional limita- tions include poor sitting tolerance, difficulty dressing, turning head when driving & morning care including brushing his teeth, shaving & washing. Initial treatment included evaluation followed by moist heat to neck & low back with electrical etim utilizing 4 pads on lumbosacral opine. Thin was followed by ultrasound to the lumboeacral area. Muscle energy was utilized to correct R posterior ilium, after alignment improved. strain/counterstrain wan utilized for tender points L iliacus, L anterior cervical 2 & 5 & R anterior cervical 3,4 & 7. Pt. was instructed in improved postures & body mechanics & extension exercises in prone & standing for lumbar spine. Pt. also instructed in chin tuck exercise. A: Sprain/strain cervical, lumbar spinet possible degenerative disc lumbar spine Pt 2-3x per wk. for 5-6 wks.. TREATMENT: 1. modalities as needed 4. Manual traction mobilization cervical & lumbar spine. 2. Extension exercises Posture lumbar S._Jnstruct in proper postures & amine body mechanics 3. Lumbar stabilization exercises. 6. SHORT TERM GOALS LONG TERM GOALS 1. Decrease pain 508 1. Return to prior level of functim. 2. Tolerate morning care ie washing, shaving. 2 brushing teeth 3. increased sitting tolerance to 30 min.. 3 1_/. - , Sandi Fisher. P.T.. PT-002975-L Dates 6/10!97 Dictated but not read. I eolN , 1 EXHIBIT "6F" PENNSTATE OM. College of Medicine University Hospilal • Children's 1-lospilal The Milton S. Hershey Medical Center Stephen K. Powers, M.D., FAGS Professor and Chief Division of Neurosurgery June 20, 1997 P.O. Box 850 1lershey, Pennsylvania 17033 (717)531.8807 Pax: (717) 531-3858 Dr. David Wampler Adams-Cumberland Medical Center 3375 Carlisle Road Gardners, PA 17324 RE: Robert J. Burylo HMCII 517385 Dear Dr. Wampler: Mr. Burylo, as you know, was involved in a motor vehicle accident on June 5 and is seeing me today for a new problem related to that accident, Apparently lie was driving a car and going through an intersection when he was hit on the left (driver's side) by an oncoming car from the side. It threw his car into multiple spins, and what he remembers is being extricated from file car and taken to the local emergency room. There was probably temporary loss of consciousness. He was belted in the car and did not sustain any facial or head injuries. He is complaining of posterior cervical palrr-and-piin-inio-the-==-- lumbar spine, as well as into the hips and into the upper part of the thighs. In addition, he has pain in the shoulder region, extending into the head with forehead-related headaches. He denies any shooting pains into the hands or into the extremities. He ltas no problem with bowel or bladder function. On examination, he has cervical rigidity, particularly with hyperflexion, and some limitation in extension due to localized pain. He 1ms 24• paraspinous muscle spasms throughout the cervical and lumbar regions. Straight leg raising is negative bilaterally to 90°, lie does not have a La0gue's sign. lie has full strength in the upper and lower extremities. There is some degree of sensory loss over the dorsal surface of the forearm distally bilaterally and extending up into the dorsal hand and the base of the thumb on the dorsum. Sensation otherwise is normal Deep tendon reflexes are I+ at the biceps, triceps, and brachioradialis, and 2+ at both knees and 1+ at both ankles. He has no long-tract findings. Plain x-rays of file cervical spine rlone_lhe day.of the.accident demonstrate osleonhyfic changesgL C5-6 and C6-7 related to old soond sis. There is some angulation of CS-6 info flexion, suggesting possibly some slis f ligamentous injury to file posterior interspinous and nuchal ligaments. There is no evidence of fracture or dislocation. 1 believe die patient, on examination, has a severe cervical strain and probably also a sprain to tire lumbar region. I agree with the current treatment of analgesics with Vicodin and muscle relaxants using Robaxin. To this I will add cervical halter traction at 10 pounds, 15 minutes at a time, 3 limes a day, to help him with the cervical sprain and the rest of the neck muscles intermittently. I think it'll take probably four to six weeks for him to get over the sprain, and I've advised him fo return to see me in four weeks. r( -^'% Ao lipial Oprymunily 11 .ily ?1 Dr. David Wampler RE: Robert J. Durylo IIMCN 517385 Page 2 If he is not significantly better prior to that visit, I've asked him to contact the office to set up an MRI scan of the cervical spine to rule out ahemiated disc at the r5-G and/or C6-7 levels. As far as his lumbar spine is concerned, I do not feel that there is evidence on this exam now to support a disc herniation or a new radiculopathy. If you have any questions, as always, please feel free to give me a call. Sincerely, a Stephen K. Powers, MD Professor and Chief Division of Neurosurgery (N 61P 1 . . , r'1 I . 1 ROBERT.1. BURYLO, and SUSAN J. BURYLO, his wife, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 02989 CIVIL 1999 DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., CIVIL ACTION - LAW DEFENDANTS CERTIFICATE OF SERVICE I, Mark D. Schwartz, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document by first class United States Mail, postage prepaid in Carlisle, Pennsylvania, upon the following: Stephen J. Hogg, Esquire Law Offices of Stephen J. Hogg 19 South Hanover Street Suite 101 Carlisle, Pennsylvania 17013 Respectfully submitted, IRWIN, McKNIGHT & HUGHES By: 6Q-n G Mark D. Schwartz, Esquire Attorney for the Defendants Date: November, 1999 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 717-249-2353 Supreme Court I.D. No. 70216 i it u rw S.Y - 1 I 5;. II?,YtIyT 1 iY L '71 L t ,t . ? ?4? rY ? Y Al l5 ,5 ' r e 6t j I r Nl (ti? P7 1 y J r i 'rr Y .. I yy !! ? l Y II L ?'.t Y l ? . 1 4y v y f yy???pp ?,r?f}Iler ?? frY i?Y r' l f 1 I \ ? tf A ?tl r4 '1 t: '4+ " r „ . ? t hn?4?.?i r ? . tiS9 Sat , ? l r 1 ai ':t3 ?n " S '? ? 1 1 I 1 r+'?132 I r S n t of r? ?? i + J V ? ? I 3d?M1?lfF f.) a Yg.. ? '? ! J ? 2 ( I{ h{ Y S LA.I d .. kA y ' ' ° . r if r4pf ti ?$r: , Y? y ry , f r 1 r ? ?f?lr S t ) t 1 l ??'. 1 Y ?t r ? d I v , t. a 8} r ? F: r9 1 t r ,? ? .; 3 ?f>?a. L k " al ?`? < l c x h?a?"1 ? S a t? r? d i I I ? L41r P Spp „r? v ? ? , ?? u Y h rk x ? l-u+ G ' I ? ? ? y .l I l ? y5 q ? e 'arm I Y" 1. t ? Yr .rt Yu H. . Y .?` Y' ? i c • .. ', " .IAA, ? A PRAECIPE OR LISTING CASE FOR ARGUME (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) ROBERT J. BURYLO and SUSAN J. BURYLO, his wife, (Plaintiff] VS. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., (Defeudantj No. 2989 Civil LAW 1999 1. State matter to be argued (i.e., plaintiff's motion for new trial defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Stephen J. Hogg, Esq. Address: 19 South Hanover Street Carlisle., PA 17013 (b) for defendant: Mark D. Schwartz, Esq. Address: 60 West Pomfret Street Carlisle, PA 17013 I 1 3. I will notify all parties in writing within two days that this case has been Listed for argumirt. 4 4. Argument Court Date: December 8, 1999 <,//, ? Bated: tt .TUey for lle en ant ?? ?: ?` L. ., ,:, - _. \r u ROBERT J.BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. : IN THE COURT : OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, : NO. 99-2989 and : CIVIL TERM LABAN G. ZIMMERMAN, JR., Defendants JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW THE PLAINTIFFS PRAECIPE TO LIST FOR ARGUMENT COURT TO THE PROTHONOTARY: Please mark Plaintiffs Praecipe to List For Argument Court withdrawn in the above captioned matter. BY Attorney for LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 Date: LP 2 c 16,2'. CERTIFICATE OF SERVICE LAW OGFMOF STEPHEN J. IHOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 I, Stephen J. Hogg, Esquire, Attorney for the Plaintiffs, hereby certify that I did on this day serve one true and correct copy of the attached Praecipe by United States Mail, postage pre-paid, addressed to the following: Date: Mark D. Schwartz, Esq. Irwin, McKnight & Hughes 60 W. Pomfret Street Carlisle, PA 17,Q13 Stephen J. Hogg(Esgsrft?/ Attorney for Plaintiffs ? / 19 S. Hanover Street, Suite 101 Carlisle, PA 17013 (717) 245-2698 /()3, Lc C y F ')r ' ? lV , ?11 C1 LIIL cro cn V Husband and Wife, Plaintiffs D1 1. 2. 3. 4. 5. 6. 7. 8. 9. V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION-LAW NO. 99-2989 CIVIL TERM JURY TRIAL DEMANDED Plaintiffs Robert J. Burylo and Susan J. Burylo respond to the :fendants Motion for Summary Judgment as follows: Admitted Admitted Admitted Plaintiffs have no knowledge of this allegation and demand proof thereof. Admitted Admitted Admitted Admitted Admitted LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 `" . Previous Image Re-filmed to Correct possible Error LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants De 1. 2. 3. 4. 5. 8. 7. 8. 9. : IN THE COURT : OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION-LAW NO. 99-2989 CIVIL TERM JURY TRIAL DEMANDED Plaintiffs Robert J. Burylo and Susan J. Burylo respond to the fendants Motion for Summary Judgment as follows: Admitted Admitted Admitted Plaintiffs have no knowledge of this allegation and demand proof thereof. Admitted Admitted Admitted Admitted Admitted o v 4-- 1 10. It is admitted that Exhibit D is record of the Carlisle Hospital Emergency room from June 3, 1997. It is denied that such records are the complete records. 11. It is admitted that Exhibit E is a record from Alexander Spring Rehab, Inc. on June 10, 1997. It is denied that ;his is the complete record. 12. It is admitted that Exhibit F is a record from Dr. Stephen K. Powers dated June 20, 1997. It is denied that this is the complete record. 13. It is admitted that the Plaintiff was receiving treatment for injuries suffered in the automobile accident at issue on or about March 4, 1998. It is denied that the Plaintiff knew the full extent or cause of his injuries at that time. 14. It is admitted that Plaintiff could have raised a claim for personal injury damages in the first complaint filed March 4, 1998. It is denied that he is precluded from doing so in the second complaint. 15. Admitted 16. Denied. It is specifically denied that the doctrine of res judicata applies to bar Plaintiffs second complaint. IAw OFFOESOF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARUSLE, PA 17013 / v5Y. uw OFC?s E S?x EN J. GG 1D S. HANOVER REET SUITE 101 CARLISLE, PA 17013 Wherefore, Plaintiffs Robert J. Burylo and Susan J. Burylo respectfully request this Honorable Court to deny Defendant's Motion for Summary Judgment. Date: BY: ;'' / Stephen Jr Attorney for /a6. CERTIFICATE OF SERVICE I, Stephen J. Hogg, Esquire, Attorney for the Plaintiffs, hereby certify that I did on this day serve one true and correct copy of the attached Response To Defendant's Motion For Summary Judgment by United States Mail, postage pre-paid, addressed to the following: Mark D. Schwartz, Esq. Irwin, McKnight & Hughes 60 W. Pomfret Street Carlisle, PA 17013 LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE. PA 17013 Date: ?i Stephen J. Hogg, Es Attorney for Plaintiffs 19 S. Hanover Street, Carlisle, PA 17013 (717) 245-2698 101 71 r :oz : -` m U ., . 1 n ROBERT J. BURYLO, and COURT OF COMMON PLEAS SUSAN J. BURYLO, his wife, CUMBERLAND COUNTY Plaintiffs, V. CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, NO. 99-2989 CIVIL and LABAN G. ZIMMERMAN, JR., Defendants IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER. P.J., HESS AND OLER. JJ. ORDER AND NOW, this /6' day of February, 2000, the motion of the defendant for summary judgment is GRANTED. BY THE COURT: Stephen J. Hogg, Esquire Attorney for Plaintiffs Mark D. Schwartz, Esquire Attorney for Defendants Arn vV. R? ,., ,? .,,, ;;? ,. l ? ,'', ?'?? ,1`'? r ?` `. I 1J p. l?\ ROBERT J. BURYLO, and SUSAN J. BURYLO, his wife, Plaintiffs, V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION-LAW NO. 99-2989 CIVIL IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER. P.J.. HESS AND OLER. JJ. OPINION AND ORDER Defendant Darren Zimmerman's vehicle struck plaintiff Robert Burylo's vehicle on June 3, 1997 on Route 34 south of Carlisle. According to the portions of the summary judgment motion which have not been denied, the plaintiff, Robert Burylo, went to the Carlisle Hospital Emergency room immediately after the accident. Among other things, he was given X-rays. He was subsequently treated by Dr. David Wampler who referred the plaintiff for physical therapy at Alexander Spring Rehab Inc. beginning in June of 1997. The plaintiff continued to seek treatment from the date of the accident through the spring of 1998. On or about March 5, 1998, plaintiff, Robert J. Burylo, initiated an action against defendant Darren J. Zimmerman in the Cumberland County Court of Common Pleas by u filing a complaint which was docketed at 98-1217 Civil.' The complaint sought damages in the amount of $4,144.51, which the plaintiff claimed to incur as a result of the automobile accident between plaintiff and defendant. The complaint did not specify whether the damages sought were for personal injury or property damage. On June 18, ' In that action he was not represented by current counsel. I l r it3 Y. 99-2989 CIVIL eo`) 1998, plaintiff filed a praecipe to discontinue with the Cumberland County Prothonotary. The complaint was marked settled and discontinued without hearing or testimony. Concurrently with the discontinuance of the first action, plaintiff and defendant reached a settlement whereby defendant paid $1,000 to plaintiff. The instant action was initiated on May 17, 1999, when plaintiffs filed a complaint seeking damages for injuries allegedly resultant from the same automobile accident as referenced above. On or about November 18, 1999, defendants filed a motion for summary judgment seeking dismissal of all claims against them in this action as a matter of law. The issue before this Court is whether plaintiffs are permitted to file a second claim for personal injuries arising out of the same incident in which a claim for property damage was previously filed and discontinued. The law in Pennsylvania relating to bringing all causes of action against the same person arising from a transaction or occurrence is well settled. The Rules of Civil Procedure provide, in pertinent part: RULE 1020. PLEADING MORE THAN ONE CAUSE OF ACTION. ALTERNATIVE PLEADING. FAILURE TO JOIN. BAR (d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. (d)(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action. The Supreme Court of Pennsylvania addressed the issue of bringing all claims arising from a single transaction or occurrence in Fitzpatrick v. Branoff, 504 Pa. 169, 470 A.2d 521 (1983). The Supreme Court of Pennsylvania stated: /W- • • +°'"4 eo*? 99-2989 CIVIL When personal injuries to a person and damages to his property arise from the same cause and the same tortious act, the person who has sustained such personal injuries and property damage must seek recovery for both in a single action, and if separate actions are instituted for each category of damage and a judgment is rendered in one of such actions the entry of such judgment has the effect of res judicata and bars recovery in the other action. Such is the view of a substantial majority of jurisdictions in the United States and to this view Pennsylvania has long adhered. See Fields v. Philadelphia Transit Co., 273 Pa. 282, 117 A. 59 (1922); Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951); Saber v. Supplee Wills-Jones Milk Co., 181 Pa.Super. 167, 124 A.2d 620 (1956); citing Spinelli v. Maxwell, 430 Pa. 478, 480-481, 243 A.2d 425, 427 (1968). This mandate is based on the doctrine of res judicata which provides that once a judgment is rendered, that judgment is conclusive between the parties with regard to all points of law directly related to the cause of action and affecting the matter before the court. Bearoff v. Bearoff Brothers. Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974); Philadelphia Electric Co. v. Borough of Lansdale, 283 Pa.Super. 378, 389, 424 A.2d 514, 519 (1981). While this may seem a harsh result, it is even more unjust to permit defendants to be subjected to repeated suits, when it is possible to litigate all matters at one time. Finality of judgment is the end sought and adherence to the policy articulated above will produce that result. Fitzpatrick v. Branoff 470 A.2d at 523. However, the Fitzpatrick court recognized that there is one caveat to the general rule that all claims arising from the same transaction or occurrence must be brought simultaneously. There exists one caveat to this mandate, however. The requirement that an individual bring all his ripe claims simultaneously, does not preclude the institution of additional suits where the threshold for a personal injury action has not been reached at the time property damages claims are made. See Bond v. Gallen, 503 Pa. 286,469 A.2d 556 (1983). If, at some !ater date, a personal injury claim arises the cause of action will not be barred. Fitzpatrick v. Branoff 470 A.2d at 523. // 1, . , 99-2989 CIVIL The "threshold" in the foregoing is a reference to a financial limit contained in the former Pennsylvania No-fault Motor Vehicle Act, 40 P.S. 1009.101 et seq. The Fitzpatrick case and the discovery rule generally suggest that a second lawsuit for personal injuries can be filed under circumstances where the plaintiffs injuries were not discoverable, even by the exercise of due diligence, at the time that a prior lawsuit for property damages was settled. This is an issue, however, which we need not address in this case. There is no dispute that the plaintiff knew that he was injured in the automobile accident. He immediately sought treatment and his treatment continued throughout the time that he brought and then settled a prior action. Thus, because there is no factual dispute and because it is apparent that the current lawsuit is barred, we will grant the defendant's motion for summary judgment. ORDER AND NOW, this day of February, 2000, the motion of the defendant for summary judgment is GRANTED. BY THE COURT, Stephen J. Hogg, Esquire For the Plaintiffs Mark D. Schwartz, Esquire For the Defendants rim 4 ROBERT J. BURYLO and SUSAN J. BURYLO, Husband and Wife, Plaintiffs V. : IN THE COURT : OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION-LAW DARREN J. ZIMMERMAN, a minor, : NO. 99-2989 and : CIVIL TERM LABAN G. ZIMMfERMAN, JR., Defendants JURY TRIAL DEMANDED NOTICE OF APPEAL Notice is hereby given that Robert J. Burylo and Susan J. LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 Burylo, his wife, Plaintiffs above named, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 1& day of February, 2000. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Date: 3?l O 5 Stephen J. Nogg, Es ire Attorney for Plaintiff 19 S. Hanover Street, Ste. 101 Carlisle, PA 17013 (717) 245-2698 CERTIFICATE OF SERVICE I, Stephen J. Hogg, Esquire, Attorney for the Plaintiffs, hereby certify that I did on this day serve one true and correct copy of the attached Plaintiffs Notice of Appeal by United States Mail, postage pre- paid, addressed to the following: Mark D. Schwartz, Esq. Irwin, McKnight & Hughes 60 W. Pomfret Street Carlisle, PA 17013 Judge, Kevin A. Hess 1 Courthouse Square Carlisle, PA 17013 Rick Pierce, Court Administrator 1 Courthouse Square Carlisle, PA 17013 Date: uW OFFICES CF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 10t CARLISLE, PA 17013 19 S. Hanover Street, Suite 101 Carlisle, PA 17013 (717) 245-2696 i i i I i o Ci c?p_S T U.? ..} (y J. `? MIS (.O (L r•- L ?= O U O C) PYS510 Cumberland County NotAnotary's Office Page 1 Civ il. Case Inquiry 1999-02989 BURYLO ROBERT J ET AL (vs) ZIMMERMAN DARREN J MINOR ET AL Reference No..: Case Type.....: COMPLAINT Filed........: Time 5/17/1999 Judgment. ... : .00 Judge Assigned: ........,: Execution Date 3:41 0/00/0000 Disposed Desc.: ----- ------ Jury Trial.... Dispposed Date. 0/00/0000 - Case Comments --- ---------- Higher Crt 1.: Higher Crt 2.: General Index Attorney Info BURYLO ROBERT I 731 TORWAY ROAD PLAINTIFF HOGG STEPHEN J GARDNERS PA 17324 BURYLO SUSAN J 731 TORWAY ROAD PLAINTIFF HOGG STEPHEN J GARDNERS PA 17324 ZIMMERMAN DARREN J MINOR 162 EAST OLD YORK ROAD DEFENDANT SCHWARTZ MARK D CARLISLE PA 17013 ZIMMERMAN LABAN G 162 EAST OLD YORK ROAD DEFENDANT SCHWARTZ MARK D CARLISLE PA 17013 * Date Entries 5/17/1999 COMPLAINT - CIVIL ACTION FIRST ENTRY - - - - - - - - - - - - - - ------------------------------------------------------------------- 6/03/1999 SHERIFF'S RETURN FILED. Litigant.: ZIMMERMAN DARREN J SERVED : 6/2/99 COMPL Costs....: $29.10 Pd By: STEPHEN J. HOGG 06/03/1999 ------------------------------------------------------------------- 6/03/1999 SHERIFF'S RETURN FILED. Litigant.: ZIMMERMAN LABAN G JR SERVED : 6/2/99 COMPL Costs....: $14.00 Pd By: STEPHEN J. HOGG 06/03/1999 -----------------------------------------------------------=------- 7/12/1999 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS BY MARK D SCHWARTZ ESQ ------------------------------------------------------------------- 7/12/1999 PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT. ----------------------------------------------------------------- 8/10/1999 AMENDED COMPLAINT ------------------------------------------------------------------- 9/03/1999 IMPORTANT NOTICE FILED - CERTIFICATE OF SERVICE ------ ------------ ----- --------------?--------------------------- 9/13/1999 ANSWER-OF-DEFENDANTS WITH NEW MATTER TO THE PLAINTIFFS' COMPLAINT ------------------------------------------------------------------- 9/23/1999 PLAINTIFF'S ANSWER TO NEW MATTER ----•--------------------------------------------------------------- 11/18/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY STEPHEN J HOGG ESQ DEFENDANT'S NEW MATTER RAISES DEFENSE OF RES JUDICATA BY REASON OF A PRIOR ACTION INVOLVING SIMILAR PARTIES ------------------------------------------------------------------ 1.1/18/1999 DEFENDANTS DARREN J ZIMMERMAN'S AND LABAN G ZIMMERMAN JR MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA RCP 1035 ----------------------------------•---------------------------------- 11/18/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MARK D SCHWARTZ ESQ DEFENANT'S MOTION FOR SUMMARY JUDGMENT ------------------------------------------------------------------- 11./24/1999 PRAECIPE TO WITHDRAW THE PLAINTIFFS PRAECIPE TO LIST FOR ARGUMENT COURT BY STEPHEN J HOGG ESQ ------------------------------------------ ------------------------- 11/30/1999 PLAINTIFFS ROBERT J BURYLO AND SUSAN J BURYLO'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ------------------------------------------------------------------ 2/16/2000 ORDER OF COURT - DATED 02-16-00 - IN RE DEFTS MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER PJ HESS AND OLER JJ - SUMMARY JUDGMENT IS ^ PYS510 Cumberland County Pkothbnotary's Office Page 2 Civil Case Inquiry 1999-02989 BURYLO ROBERT J ET AL (vs) ZIMMERMAN DARREN J MINOR ET AL Reference No..: Filed........: 5/17/1999 Case Type.....: COMPLAINT Time.........: 3:41 Judgment..... : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Nigher Crt 1.: Higher Crt 2.: GRANTED BY THE COURT J HESS - COPIES MAILED 02-16-00 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beaa Mal P mts/Ad• End Bal COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5100 .00 JCP FEE 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 .00 * End of Case Information TRUE COPY FROM RECORD in Testknr my wN.,renf, I hup, un!o sm my hand Ar"d tilt SCE3 Of SB;:i ?AUi-t 3t 4?!ril&i8, (2. Ms. r7f4 day o(?ici tci?, ZLYZ) prothonotaryI?r? 12:17 P.M. Appeal Docket Sheet Docket Number: Page 1 of 3 March 30, 2000 708 MDA 2000 Superior Court of Pennsylvania AL ROBERT J.BURYLO and SUSAN J. BURYLO, Husband and Wife, Appellant V. DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR., Appellee Initiating Document Notice of Appeal Case Status: Active Case Processing Status: March 20, 2000 Journal Number. Case Category: Civil Consolidated Docket Nos.: Awaiting Original Record CaseType: Civil Action Law Related Docket Nos.: SCHEDULED EVENT Next Event Type: Case Initiation Next Event Type: Docketing Statement Received Next Event Type: Original Record Received Next Event Due Date: Next Event Due Date: April 13, 2000 Next Event Due Date: May 9, 2000 COUNSEL INFORMATION Appellant Burylo, Robert J. Pro Se: IFP Status: Attorney: Hogg, Stephen J. Bar No.: 36812 Address: Suite 101 19 South Hanover Street Carlisle, PA 17013 Phone No.: (717)245-2698 Receive Mail: Yes Appoint Counsel Status: Law Firm: FaxNo.: (717)245-0829 Appellant uryo, Susan J. 1011199 / 1 1, 3023 B C: JW :C _ J 1217 PIM. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 708 MDA 2000 Page 2 of 3 March 30, 2000 WSW= Pro Se: Appoint Counsel Status: IFP Status: Attorney: Hogg, Stephen J. Bar No.: 36812 Law Firm: Address: Suite 101 19 South Hanover Street Carlisle, PA. 17013 Phone No.: (717)245-2698 Fax No.: (717)245-0829 Receive Mail: Yes Appellee Zimmerman r., amen J . an La ban G. Pro Se: Appoint Counsel Status: IFP Status: Attorney: Schwartz, Mark David Bar No.: 70216 Law Firm: Address: Irwin McKnight & Hughes 60 W Pomfret Street Carlisle, PA 170133222 Phone No.: (717)249-2353 Fax No.: (717)2496354 Receive Mail: Yes FEE INFORMATION Receipt No.: TRIAL COURT/AGENCY INFORMATION Court Below: Cumbedand County Court of Common Pleas County. Cumbedand Division: Civil Date of OrderAppealed From: February 16, 2000 Judicial District: 9 Date Documents Received: March 20, 2000 Date Notice of Appeal Filed: March 17, 2000 Order Type: Order Entered OTN: Judge: Hess, Kevin A. Judge Lower Court Docket No.: 99-2989 Civil Term ORIGINAL RECORD CONTENTS Original Record Item Filed Date ContenHDescdptlon Date of Remand of Record: BRIEFS 1011198 I' Y. . 3023 ca ? c. ; J !1. _, Q U 1217 P.M. _ Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 708 MDA 2000 _ Page 3 of 3 March 30, 2000 DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By March 20, 2000 Notice of Appeal Filed Notice of Appeal Appellant Burylo, Robert J. March 30, 2000 Docketing Statement Exited (Civil) 1011#99 I l 3023 ?, Z- <? f]; - N i - ? ; E i i `- ? / , ? - ?? ? w : ? ,`-J i ?: - -? fii - G- 1 ? ' ? C 7. ( u i 1 3 _ i, i... ?_ M. o U ? _i _; PYS510 Cumberland County Prothonotary's Office Page Civ il Case Inquiry , 1999-02989 BURYLO ROBERT J E'1' Al., (vs) ZIMMERMAN DARREN J MINOR ET AL Reference No..: Filed........: 5/17/1999 Case Type.....: COMPLAINT Time.........: 3:4] Judgmen......: .00 Judge Assigned: Execution Date Jury Trial.... 0/00/0000 Disposed Desc.: Dispposed Date . 0/00/0000 ------------ Case Comments --- ---- Big= Crt 1. : 708 MDA 200 Higher Crt 2.: General Index Attorney Info BURYLO ROBERT J PLAINTIFF HOGG STEPHEN J 731 TORWAY ROAD GARDNERS PA 17324 BURYLO SUSAN J PLAINTIFF HOGG STEPHEN J 731 TORWAY ROAD GARDNERS PA 17324 ZIMMERMAN DARREN J MINOR DEFENDANT SCHWARTZ MARK D 162 EAST OLD YORK ROAD CARLISLE PA 17013 ZIMMERMAN LABAN G DEFENDANT SCHWARTZ MARK D 162 EAST OLD YORK ROAD CARLISLE PA 17013 * Date Entries 1 - 12 5/17/1999 13 6/03/1999 14 6/03/1999 15 - 16 7/12/1999 17 - 1b 7/12/1999 20 - 30 8/10/1999 31 - 32 9/03/1999 33 - 58 9/13/1999 59 - 63 9/23/1999 64 11/18/1999 65 - 1001.1/18/1999 10111/18/1999 102 - 10311/24/1999 104 - 10711/30/1999 108 - 112 2/16/2000 FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------- --------------- SHERIFFS RETURN FILED. SERVEDnt : 6%2 99MANCOMPLEN J Costs....: $29.10 Pd By: STEPHEN J. HOGG 06/03/1999 -------7----------------------------------------------------------- SHERIFFS RETURN FILED. SERVqEDnt.: 632/99MANCOMPLN G JR Costs....: $14.00 Pd By: STEPHEN J. HOGG 06/03/1999 ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS BY MARK D SCHWARTZ ESQ -------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT -------------------------------------------------------------------- AMF.NDED COMPLAINT -------------------------------------------------------------------- IMPORTANT NOTICE FILED - CERTIFICATE OF SERVICE ------------------------------------------------------------------- ANSWER OF DEFENDANTS WITH NEW MATTER TO THE PLAINTIFFS' COMPLAINT ------------------------------------------------------------------- PLAINTIFF'S ANSWER TO NEW MATTER --------•---------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY STEPHEN J HOGG ESQ DEFENDANT'S NEW MATTER RAISES DEFENSE OF RES JUDICATA BY REASON OF A PRIOR ACTION INVOLVING SIMILAR PARTIES -------------------------------------------------------------=--- - - DEFENDANTS DARREN J 7,IMMERMAN'S AND LABAN G ZIMMERMAN JR MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA RCP 1035 -------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MARK D SCHWARTZ F,SQ DEFENANT'S MOTION FOR SUMMARY JUDGMENT ------------------------------------------------------------------- PRAECIPE TO WITHDRAW THE PLAINTIFFS PRAECIPE TO LIST FOR ARGUMENT COURT BY STEPHEN J HOGG ESQ ------------------------------------------------------------------- PLAINTIFFS ROBERT J BURYLO AND SUSAN J BURYLO'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ----------------------------- -------------------------- --------- ORDER OF COURT - DATED 02-16-00 - IN RE DEFTS MOTION FOR SUMMARY JUDGMENT 13EFORE HOFFER PJ HESS AND OLER JJ - SUMMARY JUDGMENT IS PYS510 Cumberland County Prothonotary's Office Page Civil Case Inquiry 1.999-02989 BURYLO 11013ERT J ET AL (vs) ZIMMERMAN DARREN J MINOR ET AL Reference No..: Filed........: 5/17/1999 Case Type.....: COMPLAIN'T' Time.........: 3:41 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 708 MDA 200 Higher Crt 2.: GRANTED BY THE COURT J HESS - COPIES MAILED 02-16-00 ------------------------------------------------------------------- 113 - 116 3/17/2000 NOTICE OF APPEAL TO SUPERIOR COURT FROM ORDER ENTERED 2/16/00 By STEPHEN J HOGG ESQ -------------------------------------------- ---------------------- 117 - 119 3/31/2000 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 708 MDA 2000 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - -- - **k***k*k***+k**************+***k*****kkk**#****k+**++*******k**+************kk * Escrow Information * Fees & Debits Bet Bal Pmts/Ad! End Bal ******++****k***kk***+*kkk****** ****k+*+ *+#++* kkkkk*++**********+****k**k*** COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ------------------------ ------------ 75.50 75.50 .00 * End of Case Information ****#*****#kkkkk#kkk#kkkkk***kkk#kkkk***#+kkk#kkkk*kkk#+kkkkk*+*kkk*kkkk******* CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ROBERT J. BURYLO and SUSAN J. BURYLO Husband and Wife vs DARREN J. ZIMMERMAN, a minor, and LABAN G. ZIMMERMAN, JR. 99-2989 Civil Term 708 MDA 2000 The documents comprising the record have been numbered from No. 1 to 17,9 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4-26-00 . Curti R. Long, Prdthoriotary Jan . Sparling, Dpty. An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Roceived in Superior Cou APR z 7 2000 MIDDLE ?:4,A. Signature & Title