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HomeMy WebLinkAbout99-04086 ,h L J C KEVIN L. MILLER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. 99-4086 CIVIL CIVIL ACTION - LAW HARRY STOPPE, Defendant IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held January 9, 2002, were Jason Imler, Esquire, attorney for the plaintiff, and Andrew Lehman, Esquire, attorney for the defendant. This is a case in which the defendant pulled from a parking space into the path of the plaintiff's vehicle, causing a collision. Liability is conceded. The plaintiff intends to object to the admission and use of photographs of the vehicles to the extent that they are used to address causation and anticipates filing a motion in limine seeking to prevent evidence or argument regarding the severity of the plaintiff's injuries based on the force of the collision. Plaintiff also will file a memorandum with regard to the jury charge on substantial factor. This otherwise uncomplicated case should be of no more than one and one-half to two days' duration. It is not likely that this matter will settle. January 9, 2002 Jason Imler, Esquire For the Plaintiff Andrew Lehman, Esquire For the Defendant Court Administrator =cf;;;r; ;X ;:, rY 11 KEVIN L. MILLER, Plaintiff, V. HARRY STOPPE, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW JURY TRIAL DEMANDED PRE-TRIAL MEMORANDUM OF DEFENDANT HARRY STOPPE AND NOW, this 2' day of January, 2002, Andrew C. Lehman, Esquire, counsel for Defendant, sets forth the following required information pursuant to Cumberland County Local Rule 212-4: I. A Statement of the Basic Facts as to Liability. This civil action arises out of a motor vehicle accident that occurred on July 26, 1997 at approximately 12:30 p.m. on South Enola Drive, Enola, Cumberland County, Pennsylvania. At that time and place, Plaintiffs, Kevin L. Muller and his wife, Annette Miller, were traveling in a southerly direction on South Enola Drive in their 1992 Hyundai Scoop. Kevin Miller was driving. As the Millers were traveling on South Enola Drive, Defendant, Harry Stoppe, who was driving his 1987 Oldsmobile Delta 88, began pulling out from a parking space, which was parallel to the curb on South Enola Drive. As Plaintiff's vehicle was passing Defendant's vehicle, Mr. Stoppe pulled into the lane of travel wherein the front driver's side fender and bumper of his vehicle made contact with the passenger's side of the Miller vehicle. Immediately after contact between the two vehicles the Millers stopped their car and information was exchanged between the parties. Additionally, at the scene of the accident, no one claimed to be injured. Furthermore, according to Mr. Miller's deposition transcript, it wasn't until a couple days after the accident when he began to feel he was injured. II. A Statement of the Basic Facts as to Damages. Not applicable to Defendant; however, this was a minor impact between the two vehicles and Plaintiff did not allege any injury at the time of the accident. III. A Statement as to the Principal Issues of Liability and Damages. Defendant will admit that he was negligent. Defendant will not admit that his negligence was a substantial factor in causing the Plaintiffs harm. The nature and extent of Plaintiffs' injuries are for the jury to decide. IV. Defendant would request that the parties stipulate to the authenticity of all medical records as well as any vehicle damage estimates stemming from the incident in question. Furthermore, Defendant would request that both parties stipulate to the authenticity of all documents exchanged during the course of discovery. V. The Identity of Witnesses to be Called. Defendant may call Harry Stoppe. Defendant does not anticipate calling any other witnesses, however, Defendant does reserve the right to call Plaintiffs as on cross-examination and any of the Plaintiffs' healthcare providers. 2 VI. A List of Exhibits with Brief Identification of Each. A. Photographs of Defendant's vehicle; B. All of Kevin Miller's medical records exchanged through discovery including but not limited to: 1. Medical records from Dr. Emily Matlin; 2. Medical records from Holy Spirit Hospital; 3. Medical records from Dr. Albert Heck; 4. Medical records from Herd Chiropractic; 5. Medical records from Harrisburg Hospital; 6. Medical records from HealthSouth Rehabilitation Hospital; 7. Medical records from Dr. David Smith; 8. Medical records from Dr. Bruce Goodman. C. Police report of the incident in question; D. Transcripts from the parties' depositions for impeachment purposes and/or to refresh recollection; E. Recorded statement of Harry Stoppe given to Allstate Insurance Company for the purpose of refreshing recollection, if necessary; F. Defendant reserves the right to use as an exhibit any other documents exchanged during the course of discovery. 3 VII. The Current Status of Settlement Negotiations. Defendant had offered $1,500, which has been rejected. Date: Respectfully submitted, NEALON & GOVER, P.C. By: Andrew C. Lehman, Esquire I.D. #: 81937 2411 North Front Street Harrisburg, PA 17110 717/232-9900 4 VII. The Current Status of Settlement Negotiations. Defendant had offered $1,500, which has been rejected. Date: Respectfully submitted, NEALON & GOVER, P.C. By: Andrew C. Lehman, Esquire I.D. #: 81937 2411 North Front Street Harrisburg, PA 17110 717/232-9900 CERTIFICATE OF SERVICE AND NOW, this 2id day of January, 2002, 1 hereby certify that I have served the foregoing PRE-TRIAL MEMORANDUM on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: David H. Rosenberg, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, Pa 17110 Andrew C. Lehman, Esquire 0 o O a ¢ ¢ a o ¢ i r ljS a r U) 0 ¢ z z o w = a Z Q N D R J 0 0 0 p z W S Q -_ 0 N Z " ` rc Q K Q S WN LLO•AOMIAOMLlOV@-9UO:'ONWBO3 ] $' NONYNN3Mt*UVIS4 30MUSU?OVb nil IS-Tv KEVIN L. MILLER Plaintiff V. HARRY STOPPE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4086 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S MEMORANDUM OF LAW WITH RESPECT TO THE "SUBSTANTIAL FACTOR" CHARGE AND JURY QUESTION 1. FACTS On or about July 26, 1997, at approximately 12:30 p.m., Plaintiff, Kevin Miller, and his family were traveling on South Enola Drive in Enola, Cumberland County, Pennsylvania. At approximately the same time, Defendant, Harry Stoppe, was pulling from a parking space on South Enola Drive. The Defendant, Harry Stoppe, carelessly pulled from the parking space and into the Plaintiff's vehicle causing a collision. Plaintiff, Kevin Miller, made evasive maneuvers but was unable to avoid the Defendant's vehicle as it entered the roadway. As a result of the collision Plaintiff, Kevin Miller, sustained, among other things, neck and back injuries. If. QUESTION PRESENTED WHETHER THE JURY CHARGE AND THE JURY QUESTION REGARDING "SUBSTANTIAL FACTOR" OR "LEGAL CAUSE" SHOULD ADDRESS THE CAUSE OF THE ACCIDENT AS OPPOSED TO THE CAUSE OF THE INJURIES SUSTAINED BY A PLAINTIFF? Answer proposed in the affirmative. III. ARGUMENT THE JURY CHARGE AND JURY QUESTION REGARDING "SUBSTANTIAL FACTOR" OR "LEGAL CAUSE" SHOULD ADDRESS THE CAUSE OF THE 1 ACCIDENT AS OPPOSED TO THE CAUSE OF PLAINTIFF'S INJURIES. It is anticipated that the Defendant will present this Court with a suggested jury charge and a suggested jury question or a verdict slip question which will propose that "substantial factor" addresses the cause of injuries as opposed to the cause of the accident. The Pennsylvania Suggested Standard Jury Instruction (SSJI) (Civil) 3.25 regarding "Legal Cause" states: In order for the plaintiff to recover in this case the defendant's conduct must have been a substantial factor in bringing about the ACCIDENT. This is what the law recognizes as legal cause. A substantial factor is an actual, real factor, although the result may have been unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the ACCIDENT. (Emphasis added.) The substantial factor test "circumvents the use of legally embellished phrases, while retaining the crucial distinction between factual cause and legal cause. It is simple and direct, and leaves to the jury what, after all, is its fundamental common sense task: apportioning responsibility for an accident causing personal injuries." Comment to SSJI 3.25. (Emphasis added.) Neither the Suggested Standard Jury Instruction nor the comment thereto propose that the jury's task when considering legal cause is to apportion responsibility for the injuries. To the contrary, the comment directly points out that the jury's responsibility is to apportion responsibility for the accident that caused the personal injuries. As such, both the jury instruction and the jury question concerning substantial factor should address the cause of the accident, not the cause of the injuries. 1) "The charge also relates causation to the happening of the ACCIDENT, rather than to the injury or the harm." Comment to SSJ13.25. (Emphasis added.) "Where causation of an injury (rather than degree of an injury) is in issue, it is unnecessarily confusing to charge a jury that a plaintiff can recover only if he proves that the defendant's negligence caused his `injury."' Comment to SSJI 3.25. (Emphasis added.) Defendant seeks to submit a question to the jury indicating that Plaintiff can recover only if he proves that Defendant's negligence caused his injury for the very purpose of confusing the jury on the issue of proximate cause. If only the degree of injury is at issue, the substantial factor question should not even be presented to the jury. Rather, the "but for" test would be more appropriate. "In seeking to determine whether specific conduct actually caused the harmful result in question this test (the "but for" rule or"Sine quanon" test) can be useful and is generally adequate, but it cannot be indiscriminately used as an unqualified measure of a defendant's liability." Whitner v. Lojeski, 263 A.2d 889, 893 (Pa. 1970). In short, when only the degree of injury is at issue, causation of the accident is essentially admitted and the "but for"test would be appropriate. But if the causation of the injury is at issue, the substantial factor instruction and question on the verdict slip should be used but only to address the cause of the accident because it is unnecessarily confusing to charge ajury that a plaintiff can recover only if he proves that the defendant's negligence caused his "injury." "To avoid the possibility of confusion in such situations, causation of injuries, as opposed to the accident itself, is covered in the damages portions of the charge." Comment to SSJI 3.25 (Emphasis added.) Only in situations where the defendant has alleged that the plaintiff was comparatively negligent, the plaintiffs negligence contributed to the accident, some other third party is responsible for the accident, or some type of concurring cause is responsible for the injuries, do the Suggested Standard Jury Instructions address the cause of the injuries orharm and not the cause ofthe accident. (See SSJI 3.03 "Contributory Negligence," 3.03A "Comparative Negligence and Apportionment Among Joint Tortfeasors," 3.26 "Concurring Causes," 3.27 "Concurring Causes - Either Alone Sufficient"). In the present matter, there are no allegations of this sort. It has been consistently recognized by Pennsylvania courts that although the plaintiff may have had pre-existing conditions which were aggravated by an accident, the plaintiff is still entitled to recover for the aggravation if the defendant's negligence caused the accident. The tort-feasor must take his victim as it finds him. Botek v. Mine Safety Appliance CorV., 611 A.2d 1174 (Pa. 1992). The fact that a plaintiff, who suffers an injury, was particularly susceptible to a serious injury due to a condition not known to the defendant does not limit the defendant's liability, in that the negligence causing an aggravation of a preexisting condition subjects the tort-feasor to the same degree of liability as the infliction of an original wound. See Fretts v. Pavetti, 422 A.2d 881, 885 (Pa.Super. 1989). These well accepted principles further support the position that substantial factor in this case should address the cause of the accident. This is true because even if Plaintiffs injuries were initially caused by something other than Defendant's negligence, Defendant would still be responsible for the aggravation of Plaintiffs injuries if Defendant's negligence was a substantial factor in bringing about the accident. If the jury received a verdict slip asking whether Defendant's negligence was the substantial factor in bringing about Plaintiffs injuries, the jury could render a ,1 verdict that is inconsistent with established principles of Pennsylvania law. That is, the jury could conclude that the Plaintiff had pre-existing injuries and therefore the Defendant's negligence was not the substantial factor in bringing about those injuries even though the jury believes that Plaintiff's pre-existing injuries were in fact aggravated by the Defendant's negligence. Submitting a verdict questionnaire which asks whether a defendant's negligence was the substantial factor in bringing about the accident would prevent the jury from returning a verdict inconsistent with established Pennsylvania law. If we are to use the Suggested Standard Jury Instruction on "Legal Cause," then we should utilize it as written. While the Standard Instructions are flexible when the circumstances require flexibility, this case does not require such flexibility. The present matter fits squarely within the charge as suggested. There has been no allegation that the Plaintiff was negligent in causing the accident. There has been no allegation that a third party was negligent in causing the accident. There has been no allegation that some concurring cause is responsible for the injuries. Further, it is well accepted that although the Plaintiff may have had pre-existing conditions which were aggravated by an accident, the Plaintiff is still entitled to recover for the aggravation. As such, it would be inappropriate to charge the jury that Plaintiff can only recover if he proves that the Defendant's negligent conduct was a substantial factor in bringing about the injury or harm. It would make little sense to present to the jury a substantial factor instruction that addresses the cause of the accident and then submit a verdict slip asking whether the defendant's negligence was the substantial factor in bringing about Plaintiff's injuries. Such an inconsistency would only serve to confuse the jury. The instruction and the verdict slip should be consistent. While it is 5 important that thejury be instructed that substantial factor addresses the cause of the accident, it is even more important that the jury question on the verdict slip regarding substantial factor address the cause of the accident because the verdict slip orjury questionnaire is what thejury will have in front of it when it deliberates. While it is possible that the members of thejury will not recall the instruction, thejurywill have the verdict slip in front of it and the jury should not be given a verdict slip asking it to answer a question that is inconsistent with the instructions. WHEREFORE, Plaintiff, Kevin Miller, respectfully requests that this Honorable Court address the "Legal Cause" or "Substantial Factor" jury instruction and verdict slip question to the cause of the accident, not the cause of Plaintiffs injuries. Date: 3 - (z=Qr Respectfully submitted, HANDLER, HENNING & ROSENBERG i Jason Imler, Esquire Supreme Court I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff KEVIN L. MILLER V. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA HARRY STOPPE, Defendant CIVIL ACTION - LAW NO. 99-4086 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S MOTION IN LIMINE SEEKING TO EXCLUDE EVIDENCE CONCERNING DAMAGE TO THE VEHICLES AND NOW, comes the Plaintiff, Kevin Miller, by and through his Attorneys, HANDLER, HENNING & ROSENBERG, by Jason C. Imler, Esquire, and makes the within Motion in Limine requesting this Honorable Court exclude all things related to equating the severity of damages sustained by the vehicles involved in the collision to the severity of personal injuries sustained by Plaintiff. Such items include, but are not limited to, all testimony, exhibits, photographs, videos, statements, opinions of non-experts and diagrams of damages sustained by the vehicles in the collision. Such evidence is not relevant nor probative of any issue in this case but to the contrary is highly prejudicial to the Plaintiff. Further, absent expert testimony, any inference by the jury that minimal damage to the vehicles translates into minimal personal injuries to Plaintiff would necessarily amount to unguided speculation. Therefore, Defendant should be precluded from trying to equate, directly or by inference, the amount of damage to the vehicles to the amount of injury to the person. On or about July 26, 1997, at approximately 12:30 p.m., Plaintiff, Kevin Miller, and his family were traveling on South Enola Drive in Enola, Cumberland County, Pennsylvania. 2. At approximately the same time, Defendant, Harry Stoppe, was pulling from a parking space on South Enola Drive. 3. The Defendant, Harry Stoppe, carelessly pulled from the parking space and into the Plaintiffs vehicle causing a collision. 4. As a result of the collision Plaintiff, Kevin Miller, sustained, among other things, neck and back injuries. 5. The damages to the vehicles were minimal. 6. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Pa.R.E. Rule 701 (emphasis added). 7. A party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Davis v. Maute, 770 A.2d 36 (De. 2001) 8. Absent such expert testimony, any inference by thejury that minimal damage to the plaintiffs car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation." Davis at 40 (emphasis added). 9. "If a party intends to make an argument involving an issue that is `within the knowledge of experts only and not within the common knowledge of laymen,' the party must present competent expert testimony to support that argument." Davis, at 40 n. 3 (citing Mazda Motor Corr). 1) V. Lindahl, 706 A.2d 526, 533 (De.Supr. 1998)). 10. It is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge ofthe average layperson." Hamilv.Bashline, 392 A.2d 1280, 1285 (Pa. 1978). 11. Beliefs as to how his injuries were caused may not be presented to the jury in the absence of expert testimony regarding causation. Ferris v. Pennsylvania Federation Brotherhood of Maintenance of Way Emrlovees, 153 F.Supp.2d 736 (E.D.Pa. 2001). 12. "[O]pinion testimony by a lay witness, as distinguished from an expert witness, should be excluded because `witnesses generally must give facts and not their inferences, conclusions, or opinions."' Lewis v. Mellor, 393 A.2d 941, 946 (Pa.Super. 1978) (citing McCormick, Handbook on Evidence, s 11 (West ed. 1972). 13 Relevant Evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Pa.R.E. Rule 401. 14. All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible. 15. Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Pa.R.E. Rule 403. 3 WHEREFORE, Plaintiff, Kevin Miller, respectfully requests that this Honorable Court grant the Motion in Limine to exclude evidence related to the damage sustained by the vehicles in the July 26,1997 collision. Plaintiff specifically requests that this Honorable Court exclude all things related to equating the severity of damages sustained by the vehicles involved in the collision to the severity of personal injuries sustained by Plaintiff. Such items include, but are not limited to, all testimony, exhibits, photographs, videos, statements, opinions of non-experts and diagrams of damages sustained by the vehicles in the collision. Should this Court deny all relief specifically requested in this Motion, Plaintiff respectfully requests that a cautionary instruction be given to the jury informing it that there is no evidence of a correlation between the damage to the vehicles and the severity of Plaintiff's injuries. Respectfully submitted, HANDLER, HENNING & ROSENBERG By, Jason C. Imler, Esquire Supreme Court I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff KEVIN L. MILLER IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 99-4086 CIVIL TERM HARRY STOPPE, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this day of 2002, upon consideration of Plaintiffs Motion in Limine to exclude photographs of the vehicles involved in the collision, said Motion is GRANTED and Defendant is precluded from referencing or presenting said photographs. BY THE COURT: J. KEVIN L. MILLER IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. HARRY STOPPE, NO. 99-4086 CIVIL TERM Defendant JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN SUPPORT OF MOTION IN LIMINE SEEKING TO EXCLUDE EVIDENCE CONCERNING DAMAGE, TO THE VEHICLES AND NOW, comes the Plaintiff, Kevin Miller, by and through his Attorneys, HANDLER, HENNING & ROSENBERG, by Jason C. Imler, Esquire, and makes the within Motion in Limine requesting this Honorable Court exclude all things related to equating the severity of damages sustained by the vehicles involved in the collision to the severity of personal injuries sustained by Plaintiff. Such items include, but are not limited to, all testimony, exhibits, photographs, videos, statements, opinions of non-experts and diagrams of damages sustained by the vehicles in the collision. Such evidence is not relevant nor probative of any issue in this case but to the contrary is highly prejudicial to the Plaintiff. Further, absent expert testimony, any inference by the jury that minimal damage to the vehicles translates into minimal personal injuries to Plaintiff would necessarily amount to unguided speculation. Therefore, Defendant should be precluded from trying to equate, directly or by inference, the amount of damage to the vehicles to the amount of injury to the person. 1. PROCEDURAL HISTORY This action was instituted by the filing of a Praccipe for Writ of Summons on or about July 2, 1999. On or about July 27, 1999, Defendant filed a Praecipe to Issue a Rule to file a complaint. Plaintiffs complaint was filed on or about September 9, 1999, alleging personal injuries as a result of a motor vehicle collision which took place on July 26, 1997. Defendant filed an Answer with New Matter on or about September 29, 1999. On or about October 5, 1999, Plaintiff filed an Answer to Defendant's New Matter. On or about August 20, 2001, an arbitration hearing was held in Cumberland County. The Board of Arbitrators found in Plaintiffs favor and awarded Mr. Miller Twelve Thousand Dollars ($12,000.00). Defendant and his insurer, Allstate Insurance Company, through their attorney, Andrew Lehman, Esq., appealed this award, demanded a jury trial and made final "take it or leave it" settlement offer of One Thousand Five Hundred Dollars ($1,500). II. STATEMENT OF FACTS On or about July 26, 1997, at approximately 12:30 p.m., Plaintiff, Kevin Miller, and his family were traveling on South Enola Drive in Enola, Cumberland County, Pennsylvania. At approximately the same time, Defendant, Harry Stoppe, was pulling from a parking space on South Enola Drive. The Defendant, Harry Steppe, carelessly pulled from the parking space and into the Plaintiffs vehicle causing a collision. Plaintiff, Kevin Miller, made evasive maneuvers but was unable to avoid the Defendant's vehicle as it entered the roadway. As a result of the collision Plaintiff, Kevin Miller, sustained, among other things, neck and back injuries. The damages to the vehicles were minimal. It is anticipated that Defendant will attempt to use photographs of the vehicles or other related evidence in an attempt to suggest to thcjury that Plaintiffs injuries are not a result of the 1) collision because there is little damage to the vehicles. Defendant is expected to admit negligence. With this in mind it is appropriate that evidence concerning damage to the vehicles be excluded: first, due to the fact that the defense has offered no expert or expert report addressing the issue of damage to the vehicles and its relevancy to any issue in this case. Thus any testimony, arguments or exhibits related to property damage and causation would have no proper foundation. Second, any testimony, arguments or exhibits related to property damage would not be relevant to the causation of Plaintiffs injuries, Third, any testimony, arguments or exhibits related to property damage and causation would not be probative to the issues at hand when compared with the prejudice to the plaintiff. Fourth, the aforementioned evidence would confuse and/or mislead the jury on the issue of causation. III. STATEMENT OF QUESTIONS INVOLVED A. WHETHER DEFENDANT SHOULD BE PRECLUDED FROM INTRODUCING TESTIMONY, EXHIBITS, PHOTOGRAPHS, VIDEOS, STATEMENTS, NON-EXPERT OPINIONS AND/OR DIAGRAMS OF DAMAGES SUSTAINED BY THE VEHICLES IN THE COLLISION WHEN DEFENDANT HAS NOT OFFERED ANY EXPERT TESTIMONY OR REPORT RELATING TO THE DAMAGE OF THE VEHICLES AND CAUSATION? Suggested Answer: Yes. B. WHETHER TESTIMONY, EXHIBITS, PHOTOGRAPHS, VIDEOS, STATEMENTS AND/OR DIAGRAMS OF DAMAGES SUSTAINED BY THE VEHICLES IN THE COLLISION ARE RELEVANT TO THE CAUSATION OF PLAINTIFF'S INJURIES? Suggested Answer: No. C. IF DAMAGES TO THE VEHICLES ARE FOUND TO BE RELEVANT TO THE ISSUE OF CAUSATION, WHETHER SAID EVIDENCE MUST BE EXCLUDED PURSUANT TO RULE 403? Suggested Answer: Yes. IV. ARGUMENT A. THE DEFENSE HAS NOT OFFERED ANY EXPERT TESTIMONY OR REPORT RELATING TO THE DAMAGE OF THE VEHICLES AND CAUSATION AND THEREFORE SHOULD BE PRECLUDED FROM INTRODUCING TESTIMONY, EXHIBITS, PHOTOGRAPHS, VIDEOS, STATEMENTS, NON-EXPERT OPINIONS AND/OR DIAGRAMS OF DAMAGES SUSTAINED BY THE VEHICLES IN THE COLLISION. Rule 702 of the Pennsylvania Rules of evidence states that, If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. Pa.R.E. Rule 702. The test for admissibility of an expert opinion is set forth in Frye v. United States, 293 F. 1013 (D. C. Cit. 1923) which was adopted by the Pennsylvania Supreme Court in Commonwealth v. Ton a, 369 A.2d 1277 (Pa. 1977). Simply stated, the Frve test holds that admissibility of scientific evidence requires "the general acceptance of its validity by those scientists active in the field to which the evidence belongs." Frve. Rule 701 of the Pennsylvania Rules of Evidence states that, If the witness is not testifying as an expert, the witness'testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Pa.R.E. Rule 701 (emphasis added). 4 The need for an expert to explain the relationship between the damages sustained by the vehicles and the injuries suffered by the Plaintiff is obvious. There have been many studies conducted by scientists and doctors concerning this matter. Biomechanical engineers and accident reconstructionists frequently testify as to the nexus, or lack thereof, between vehicular damage and physical injury. The Defendant in this matter, however, has not produced any expert opinion concerning any alleged relationship between property damage and physical injury. Defendant will present no expert testimony refuting that Plaintiff's injuries were in fact caused by the Defendant's negligence. A lay person does not have the specialized knowledge necessary to decipher how vehicle damage may or may not play a role in the extent of physical injuries. The Delaware Supreme Court has specifically addressed the issue presently before this Honorable Court. See Davis v. Maute, 770 A.2d 36 (De. 2001). In Davis, the court opined that "a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such expert testimony, any inference bythe jury that minimal damage to the plaintiffs car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation." Davis at 40 (emphasis added). Neither Defendant nor his attorney should be permitted to state their belief that because there was minimal damage to the vehicles there could not be serious personal injuries because "[n]o matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture." Collins v. Hand, 246 A.2d 398,404 (Pa. 1968) (citing Smail v. Flock, 180 A.2d 5 59 (Pa. 1962); Murray v. Siegal, 195 A.2d 790 (Pa. 1963)). "If a party intends to make an argument involving an issue that is `within the knowledge of experts only and not within the common knowledge of laymen,' the party must present competent expert testimony to support that argument." Davis, at 40 n. 3 (citing Mazda MotorCorp V Lindahl, 706 A.2d 526, 533 (De.Supr. 1998)). As our own Supreme Court has stated, "Jilt is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson." Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978) (emphasis added). Treatment and injury "are such that common knowledge or experience of laymen is not sufficient to form a basis for passing intelligent judgment." Collins v. Hand, 246 A.2d 398, 401 (Pa. 1968) It is anticipated that Defendant will assert that photographs showing the extent of damage to vehicles can be used to refute the alleged severity of damages suffered by Plaintiff based on the jury's common sense evaluation of conflicting evidence. See Cree v. Horn, 539 A.2d 466 (Pa.Super. 1988) (emphasis added). The Cree case is strikingly different from the present matter. In Cree, both parties utilized expert medical testimony and these experts disputed the severity of the injuries sustained by the Plaintiffs. Hence, there was conflicting evidence presented to the jury by experts. In the present matter, Defendant has not offered the opinion of a biomechanical engineer, an accident reconstructionist, or a medical expert. Here, there is no evidence other than guess and speculation by non-experts conflicting with Plaintiffs expert's testimony. In Ferris v. Pennsylvania Federation Brotherhood of Maintenance of Way Employees, 153 F.Supp.2d 736 (E.D.Pa. 2001), the plaintiff sought to present to the jury his opinion of how his injuries were caused. The court found that the plaintiff's "beliefs as to how his injuries were caused may not be presented to thejury in the absence of expert testimony regarding causation." Id. At 745. As such, Defendant or his counsel, should not be permitted to express their beliefs regarding the cause of plaintiff's injuries in the present matter. Defendant should not be permitted to speculate as to the cause or severity of Plaintiff's injuries in the absence of expert testimony to support any assertion that minimal damage to the vehicles equates to minimal personal injuries. "[O]pinion testimony by a lay witness, as distinguished from an expert witness, should be excluded because 'witnesses generally must give facts and not their inferences, conclusions, or opinions."' Lewis v. Mellor, 393 A.2d 941, 946 (Pa.Super. 1978) (citing McCormick, Handbook on Evidence, s I 1 (West ed. 1972). A reason to allow the testimony concerning the damage to the vehicles is to provide the defense with ammunition to assert that the plaintiff was not injured in the collision. Ifthe Defendant had wanted to show that the impact or damages sustained by the vehicles was a factor in the alleged injuries of the Plaintiff than an expert should have been utilized to that end. However, to date no report from an expert has surfaced or is in the possession of the Plaintiff. Therefore, since no expert report is in existence relating to the damages ofthe vehicles and the alleged injuries of the Plaintiff, the evidence concerning the vehicle damages must be excluded. B. TESTIMONY, PHOTOGRAPHS, AND EXHIBITS CONCERNING DAMAGE TO THE VEHICLES ARE NOT RELEVANT. As stated previously, Defendant is expected to admit negligence. As a result, the only issues for the jury are whether Defendant's negligence was a substantial factor in bringing about the accident and the extent of Plaintiffs injuries. Therefore, the only evidence admissible is material bearing upon those issues. Rule 401 of the Pennsylvania Rules of Evidence states, "`Relevant Evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the deterniination of the action more probable or less probable than it would be without the evidence." Furthermore, Rule 402 states, "All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Stated simply, evidence conceming the damage to the vehicles involved in this collision is not relevant to the issue of injury to an occupant of one of the vehicles. Further, Defendant has not provided an expert to dispute that Plaintiffs injuries were in fact related to the collision that is the subject of this lawsuit. Therefore, any evidence concerning the damages to the vehicles would not be relevant to the issues of proximate cause and damages. C. IF DAMAGES TO THE VEHICLES ARE FOUND RELEVANT TO THE ISSUE OF CAUSATION, THEN TESTIMONY, PHOTOGRAPHS, NON- EXPERT OPINIONS OR OTHER EXHIBITS ADDRESSING DAMAGE TO THE VEHICLES MUST BE EXCLUDED PURSUANT TO RULE 403. Rule 403 of the Pennsylvania Rules of Evidence states in relevant part, "Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading thejury." The probative value of vehicle damage photographs is minimal when compared to the prejudice that will potentially befall the Plaintiff. If permitted to seethe vehicle damage photographs and hear evidence regarding the damage, the jury would be immediately prejudiced against the Plaintiff and would likely disregard Plaintiffs case including his expert physician's testimony. According to the comment to Rule 403, "unfair prejudice" means "a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing evidence impartially." A jury would likely take one look at the vehicle photographs and conclude that there is noway a person could be injured based upon the minimal vehicle damage. In doing so, the jury panel would be doing precisely what Rule 403 is attempting to prevent, namely, making a decision on an improper basis. Biomechanical analysis invokes a myriad of factors including bumper strength, vehicle crashworthiness, seat rebound propensities, road surface, angle of impact, size and strength of the individual, and others. Expert testimony would clearly be needed for an appropriate, legally sufficient, foundation to be laid in order to make property damage evidence even arguably relevant. V. CONCLUSION For the aforementioned reasons, Plaintiff, Kevin Miller, respectfully requests that this Honorable Court grant the Motion in Limine to exclude evidence related to the damage sustained by the vehicles in the July 26, 1997 collision. Plaintiff specifically requests that this Honorable Court exclude all things related to equating the severity of damages sustained by the vehicles involved in the collision to the severity of personal injuries sustained by Plaintiff. Such items include, but are not limited to, all testimony, exhibits, photographs, videos, statements, opinions of non-experts and diagrams of damages sustained by the vehicles in the collision. Should this Court deny all relief specifically requested in this Motion, Plaintiff respectfully requests that a cautionary 9 instruction be given to the jury informing it that there is no evidence of a correlation between the damage to the vehicles and the severity of Plaintiffs injuries. Respectfully submitted, HANDLER, HENNING & ROSENBERG By: ason C. I ler, Esquire Supreme Court I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff 10 Jury List for Trial Week beginidug March 11, 2002 151 Jurors selected. Juror Numbers 1 to 151 selected. Juror # Name Occupation 032 Bailey, Hunter E Jr Dock Leadman 047 Bair, Kristen J Unknown 051 Baker, David B Telecom Manager 081 Baldwin(Hoover), Linda Diane Sales Exec 098 Baughman, Doris L Retired 111 Beaston, Walter S Twp Supervisor 031 Bender, Glenn J Retired 118 Berg, Larry A Information Specialist 116 Bernier, Becky J Instructional Suport 016 Bickta, Glenwood M Instructor 117 Bilchak, Mary J Retired 083 Bishoff, Betty J Retired 151 Bland, Paula M M Information Technology Specialist 107 Brion, Donald L Supervisor 072 Brown, Wilma C Unknown 085 Butler, Lisa Case Manager 012 Coleman, Bobbie Jean Service Administrator 011 Castle, Richard G III CSR 026 Clements, Theodore E Regional Manager 100 Clifton, Craig S Claim Rep 066 Conrad, Laura Unknown 131 Costa(Walton), Theresa A Teller 103 Crider, Adrienne M Home Visitor 053 Davenport, Deborah Unknown 060 Deutsch, Nancy J Research Specialist 149 DeVore, Sharon E School Bus Driver 132 Duncan, Scott A Dock Worker 043 Dullinger, James F Supervisor 134 Earp, David W Senoir Tech 044 Ellis, Kristy L Unknown 113 Enloe, Marvin N Retired 020 Eshelman, James B Retired 001 Frey, Michael Truck Driver 027 Fritts, Daniel R Mechanic 115 Gamble, Edward L Unknown Monday, February 25, 2002 Page I o 4 Juror # _ Name Occupation 054 Gardner, Bryan P Guard 108 Gardner, Sandra A Financial Clerk 079 Gehdnger, Megan K Project Coordinator 067 Gentile, Charles W Sports Director 036 Gierhart, Daniel T Admission Presenter 034 Glass, Lavern C Electrician 097 Gons, Myra F Homemaker 018 Gordon, Cassandra CNA 104 Groff, Mark E Unknown 017 Harbin, John Unknown 143 Hawkes, Robert E Jr Retired 119 Heagy, Michael G Unknown 019 Hoover, Steven P Not Given 150 Horgan, Mistery K Unknown 090 Humer, Willard C Unknown 039 Hunt, Gary W Principal 095 Jackson, Francis J Courier 025 Jenkins, Sandra Unknown 126 Jones, Betty J Retired 120 Jones, Llewellyn B Retired 075 Keatley, Mary F Unknown 035 Kenes, Darryl L Retired 147 Kissel, Daniel Laborer 006 Kohler, Jane E Unknown 013 Krasevic(Martin), Anne M Clerical 061 Krebs, Tami L Human Resource Analyst 093 Kump, Brian D Realtor 133 Lake, Waiter A Jr Retired 002 Laubach, Lisa A Unknown 003 Lauer, Cathleen C Homecare Aide 101 Laurent, Renate C Unknown 015 Lawler, Linda Gail Unknown 102 Lawyer, Rebecca Admin Assistant 037 Leer, Ronald L Plant Worker 128 Lefevre, Jamie L Assistant Manager/Adman Assistant 065 Lenahan, Mary T Reader 007 Lentz, John A Salesman 074 Liebrum, Robert Retired 110 Liggitt, Tarry J Computer Programmer 137 Lindeberg, Andrew W Computer Specialist 087 Lives, Elaine S Director .. 135 Looker, Stephen A Teacher 092 Lu, Dau Thi Business Afouday, February 25, 2002 page 2 of 4 Juror # Name Occupation 049 Ludwig, Cynthia L Parts Admin. 138 Lumadue, William J Sr Owner 048 Macgregor, Thomas R Joumy Man Mach 136 Marsico, Francis A Owner 069 Martin, William P Manager Consultant 070 McClintock, Idamae R Service Coordinator 141 McGarvey, Mary A Not Given 033 McGinley, Kerrie D Special Investigator 082 Meluskey, Andre J Unknown 106 Milakovic, Michael A Computer Operator Support 140 Morgan, Sandra L Secretary 148 Mosemann, Mary Louise Homemaker 050 Murphy, Mary-Brigid Not Given 004 Myers, Jacqueline V Nanny 105 Myers, Ronald Lee Labor 040 Nace, Ralph E Sr Crane 010 Nester, John M Unknown 041 Nicholson, Jamie Sivak Tech Spec 144 Nickerson, Cornelia T Admin Assistant 076 Nolan, John E Not Given 139 Norman, Jasper E Retired 125 O'Donnell, Thomas E Salesman 052 Olson, Brian D Unknown 096 Pasquarette, Kathleen A Homemaker 046 Patton, G Reeder III Unknown 112 Peechalka, Walter N Exec Vice President 024 Poe, Sharon A Secretary 022 Potteiger, Ruth M Retired 146 Pressel, JoAnn C Coordinator 127 Price, William F III Retired 021 Pursel, William K Programmer 099 Ream, Ronald V Retired 080 Robinson, Kent W Programmer 130 Romberger, Wilmer L II Clerk 145 Rowland, Albert L Teacher 063 Ryan, Sharon R President/CEO 029 Saylor, Margurile Pamilla City Editor 055 Severance, Philip M Laborer 059 Shenfetd, Arletta J Assistant Director of Programs 014 Sheriff, Constance G Laborer 088 Shover, Christopher Maintenance Administrator 077 Shover, Richard General Manager 089 Silver, Mark S Unknown bfonday, £ebreary 25, 2002 Page 3 of 4 Juror# Name Occupation 142 Sisak, John E Fiscal Assistant 124 Smith, Debra Nurses Aide 114 Souder, Donald L Field Engineer 008 Staley, Ralph Retired 030 Starner, Jeremie Helper 009 Statler, Ronald E General Manager 109 Stem, Barbara J Teacher 094 Steller, Samuel E Unknown 122 Strahosky, Carol J Admin Assistant 023 Sunday, Gloria J Police Dispatch 129 Swanger, Heidi Jean Kitchen Manager 058 Thomas, Anthony E Unknown 073 Thomas, Jeffrey A Unknown 042 Trill, Dwight A Information Tech Specialist 084 Vallejo, Ana Not Given 005 Van Orman, Joan R Principals Secretary 038 Venal, Carol L Unknown 078 Vick, Fem L Information Tech 045 Walden, John D Engineering Manager 123 Walker, Cynthia M Coordinator 091 Walker, Lois G RN 068 Warren, Beverly R Claims Examiner 056 Weston, R Timothy Lawyer/Partner 028 Whitcomb, Carol L Marketing Assistant 064 Wiley, Lee B 111 Tire Builder 071 Wolanin-Saifi, Suzanne Unknown 121 Wolf, Beverly M Communication Clerk 057 Wright, Judith D LPN 086 Wyckoff, Ellen M Clerk 062 Wyrick, Jack D Laborer End of Jury Lls;4 151 Jurors selected. Monday, February 25, 2002 Page 4 of 4 J KEVIN L. MILLER Plaintiff V. HARRY STOPPE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4086 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFFS' PRE-TRIAL MEMORANDUM 1. Statement of Facts as to Liability: On or about July 26, 1997, at approximately 12:30 p.m., Plaintiff, Kevin Miller, and his family were traveling on South Enola Drive in Enola, Cumberland County, Pennsylvania. At approximately the same time, Defendant, Harry Stoppe, was pulling from a parking space on South Enola Drive. The Defendant, Harry Stoppe, carelessly pulled from the parking space and into the Plaintiffs vehicle causing a collision. Plaintiff, Kevin Miller, made evasive maneuvers but was unable to avoid the Defendant's vehicle as it entered the roadway. The collision caused damage to both vehicles and Plaintiff, Kevin Miller, sustained, among other things, neck and back injuries. 11. Statement of Facts as to Damages: As a result ofthe collision, Mr. Miller sustained injuries primarily to his neck, back and head. III. Issues Involving in Liability and Damages: Liability The issue of liability is clear in this case. Defendant failed to pay attention and keep his motor vehicle under proper control. In violation of 75 Pa.C.S.A. § 3324, Defendant entered a roadway from the side of the street and failed to yield the right-of-way to Plaintiffs vehicle which was approaching on the roadway. As a result of this violation, Defendant slammed into the side of Mr. Miller's vehicle. This amounts to negligenceper se. Per Defendant's Pre-Trial Memorandum, he will admit negligence. Defendant is disputing substantial factor and the nature and extent of Plaintiffs injuries. IV. Legal Issues for Admissibility of Testimony and Exhibits. The Plaintiff requests a Stipulation as to the authenticity of medical bills and records, and employment and wage information. Plaintiff intends to object to the admission and use of photographs of the vehicles, to the extent that they are used to address causation. The Plaintiff anticipates filing a Motion in Limine withe the trial judge seeking to prevent Defendant from presenting evidence, comment, or argument regarding the severity of the Plaintiff s injuries based on the force of the collision or damage to either Plaintiffs or Defendant's vehicle. Plaintiff also anticipates that a brief or memorandum will be filed with regard to the substantial factor charge and jury question. V. List of Witnesses A. Kevin Miller - Plaintiff B. Annette Miller - Plaintiffs Spouse C. David B. Smith, D.C. - Expert Witness D. Harry Stoppe - Cross Examine Plaintiff reserves the right to call any witness identified or used by the Defendant. Plaintiff also reserves the right to supplement his witness list, should additional information become available. VI. List of Exhibits 2 A. Medical Records. B. Expert Reports. C. Treatment Charts and/or Calendars. D. Photographs. E. Employment Records. F. Deposition Transcripts. G. Transcribed recorded statements. Plaintiff reserves the right to use any Exhibits identified and/or used by the Defendant. Plaintiff also reserves the right to supplement his Exhibit list, should additional information become available. VII. Current Status of Settlement Neeotiations On or about August 20, 2001, an arbitration hearing was held in Cumberland County. The Board of Arbitrators found in Plaintiff's favor and awarded Mr. Miller Twelve Thousand Dollars ($12,000.00). Defendant and his insurer, Allstate Insurance Company, through their attorney, Andrew Lehman, Esq., appealed this award, demanded ajury trial and made final "take it or leave it" settlement offer of One Thousand Five Hundred Dollars ($1,500). Respectfully submitted, HANDLER, HENNING & ROSENBERG By: Jason Imler, Esquire Supreme Court I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff jci\trial\miller-kevin-pretrial.wpd CERTIFICATE OF SERVICE AND NOW, this 4ih day of January, 2002,1 hereby certify that 1 have served a copy of the foregoing Pre-Trial Memorandum on the Defendant by sending a copy of the same to his counsel of record by depositing a true and correct copy of the same in the United Slates mails, postage prepaid, addressed to: Andrew C. Lehman, Esquire NEALON & GOVER, P.C. 2411 North Front Street Harrisburg, PA 17110 HANDLER, HENNING & ROSENBERG Date: f- ` -D By: ??? Jtlson Imler, Esquire Supreme Court I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff KEVIN L. MILLER and ANNETTE MILLER (wife) Plaintiffs V. HARRY STOPPE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4086 CIVIL TERM Defendant 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 areserved, 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 rosy 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. NOTICIA Le ban demandado a usted en Is corte. Si usted quiere defendtrse de estas demandas expuestas en ins paginas signuientes, usted tiene vienta (20) dies de plain at pertir de al fecha de la demands y Is notification. Usted debe presenter una apariencia escrita o en persona a por abogsdo y archivar en la corte en forma escrita sus defensas o sus objections a las demandas en contra de so persona Sea avisado que si usted no se fefiende, Is corte tomam medidas y puede una order contra usted sin previo aviso o notification y par cualquier queja o akuvui que es pedido en Is petition de demands. Usted puedo parder dinero o sus propiedades o otros derechos importantes pam usted. LLEVE ESTA DEMANDA A UN ABODAGO MUKEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL, Cumberland County Court Administrator Cumberland County Courthouse, Fourth Floor Carlisle, PA 17013 Telephone (717) 240-6200 DATED: 9 " (" 7 HANDLER, HENNING &&ROO/SENBERG David H Rosenberg, Esquire Supreme Court I.D. 020569 319 Market Street P.O. Box 1177 Harrisburg, PA 17108-1177 (717) 238-8000 Attorneys for Plaintifl(s) KEVIN L. MILLER and IN THE COURT OF COMMON PLEAS ANNETTE MILLER (wife) CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. No. 99-4086 CIVIL TERM HARRY STOPPE, Defendant JURY TRIAL DEMANDED COMPLAIN T AND NOW, come the Plaintiffs, Kevin L. Miller and Annette Miller, by and through their attorneys, HANDLER, HENNING, & ROSENBERG, byDavid HRosenberg, Esquire, and makes within Complaint against the Defendant, Harry Stoppe, as follows: 1. Plaintiffs, Kevin L. Miller and Annette Miller, his wife, are adult individuals currently residing at 551 South Enola Drive, Enola, Cumberland County, Pennsylvania 17025. 2. Defendant, Harry Stoppe, is an adult individual currently residing at 416 Deerfield Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. At all times material hereto, Plaintiff, Kevin L. Miller, was the operator of a 1992 Hyundai Scoupe owned by Annette Miller bearing Pennsylvania Reg. A043325 (hereinafter "Plaintiffs vehicle"). 4. At all times material hereto, Defendant, Harry Stoppe, was the operator of a 1987 Oldsmobile Delta 88 owned by Harry Stoppe bearing Pennsylvania Reg. EBA331 (hereinafter "Defendant's vehicle"). 5. On or about July 26, 1997, at approximately 12:30 p.m., the Plaintiff s vehicle was traveling on South Enola Drive, Enola, Cumberland County, Pennsylvania. 6. At approximately the same time and place, Defendant failed to observe the Plaintiffs vehicle traveling on South Enola Drive. Suddenly and without warning, Defendant pulled out of a parking space, on South Enola Drive, into the path of Plaintiffs vehicle and a violent collision resulted. 7. The aforementioned collision caused extensive property damage and was so severe that Plaintiff, Kevin L. Mdler required medical attention. 8. At the time of the collision, Plaintiffs', Kevin L. Miller and Annette Miller, were insured under a motor vehicle policy through Allstate Insurance Company. 9. The insurance policy elected the full tort option as enumerated in the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701 (a) (1) (A), et sea, as amended. 10. As a direct and proximate result of the negligence of the Defendant, Plaintiff, Kevin L. Miller, sustained extensive injuries as set forth specifically below. COUNT 1 -NEGLIGENCE KEVIN L. MILLER v. HARRY STOPPE 12. Plaintiff, Kevin L. Miller, herein incorporates paragraphs 1 through 11 of this Complaint into this count as if fully set forth below. 13. The occurrence of the aforementioned collision and all of the resultant injuries to Plaintiff, Kevin L. Miller, are the direct and proximate result of negligence, carelessness, and/or recklessness of the Defendant, Harry Stoppe, generally and more specifically as set forth below: (a) In failing to be reasonably vigilant to observe position of Plaintiffs' vehicle or the roadway; (b) In failing to operate said vehicle in such a manner that would allow him to apply the brakes and stop before the collision occurred; (c) In failing to operate said vehicle under proper and adequate control in order that he could avoid the collision with Plaintiffs' vehicle; (d) In failing to yield the legal right of way to Plaintiffs' vehicle; (e) In failing to maintain proper and adequate observation of the existing traffic conditions; (f) In failing to keep a proper lookout for vehicles lawfully driving on South Enola Drive, Enola, Cumberland County, Pennsylvania; (g) In failing to exercise reasonable care in the operation and control of his vehicle, in violation of 75 Pa.C.S.A. § 3714; (h) In failing to be continuously alert, in failing to perceive any warning of danger that was reasonably likely to exist, and in failing to have his vehicle under such control that injury to persons or property could be avoided; and (i) In driving his vehicle upon the highway in a manner endangering persons and property and in a manner with careless disregard to the rights and safety of others in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 14. As a direct and proximate result of the negligence of Defendant, Plaintiff, Kevin L. Miller, has suffered extensive and serious personal injuries, including but not limited to, pain in his neck, lower back and numbness in his face. 15. As a result of Defendant's negligence, Plaintiff, Kevin L. Miller, has suffered great physical pain, discomfort, and mental anguish, and will continue to endure the same pain for an indefinite period of time in the future, to his great physical, emotional, and financial detriment and loss. 16. As a result of Defendant's negligence, Plaintiff, Kevin L. Miller, has suffered lost wages and will in the future continue to suffer a loss of income and/or loss of earning capacity. 17. As a result ofDefendant's negligence, Plaintiff, Kevin L. Miller, has been compelled, in order to effect a cure for the aforesaid injuries, to spend money for medicine and/or medical attention, and will be required to expend money for the same purposes in the future, to his great detriment and loss. 18. As a result of said Defendant's negligence, Plaintiff, Kevin L. Miller, has been, and probably will in the future be, hindered from attending to his daily duties, to his great detriment, loss, humiliation, and embarrassment. 19. As a result of Defendant's negligence, Plaintiff, Kevin L. Miller, has suffered a loss of life's pleasures, and will continue to endure the same in the future, to his great detriment and loss. 20. Plaintiff, Kevin L. Miller, believes and, therefore, avers that his injuries are permanent in nature. WHEREFORE, Plaintiff, Kevin L. Miller, seeks damages from Defendant, Harry Stoppe, in the amount in excess of Twenty-Five Thousand Dollars ($25,000), and demands a trial by jury. COUNT U - LOSS OF CONSORTIUM ANNETTE MILLER v HARRY STOPPE 21. Plaintiff Annette Miller, herein incorporates paragraphs 1 through 20 of this Complaint into this count as if set forth at length. 22. As a result of the negligence of Defendant, harry Stoppe, Annette Miller, has suffered a loss of consortium, society, and comfort from her husband, Kevin L. Miller, and she will continue to suffer a similar loss in the future. WHEREFORE, Plaintiff, Annette Miller, seeks damages from Defendant, Harry Stoppe, in an amount in excess of Twenty-Five Thousand Dollars ($25,000), and demands a trial by jury. Respectfully Submitted, & ROSENBERG By David H R 56 nberg, Esquire I.D. No. 09 319 M ket Street P.O. ox 1177 Harrisburg, PA 17108-1177 (717) 238-2000 Attorney for Plaintiffs lmWcwmplaintstmillenmva KEVIN L. MILLER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HARRY STOPPE, NO. 99-4086 CIVIL TERM Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Nancy L. Bistline, an employee of the law firm of HANDLER, HENNING & ROSENBERG, hereby certify that on this day I am serving a copy of the foregoing document upon the persons(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid as follows: Matthew R. Gover, Esquire NEALON & GOVER 301 Market Street, 9°i Floor P.O. Box 865 Harrisburg, PA 17108-0865 HANDLER, HENNING & ROSENBERG Dated: /17 J 99 By Nancy L. Bistl' e, Secretary - - - -y 4 O P w J ~ n 00 18, M 6 in ¢ N M H W K 1 MM Om OINn aC4 ./J ee a0?^p A/ a x " 8? KEVIN L. MILLER and : IN THE COURT OF COMMON PLEAS ANNETTE MILLER (wife), : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED TO: Kevin L. Miller, and his attorney, David H. Rosenberg, Esquire HANDLER, HENNING & ROSENBERG 319 Market Street P.O. Box 1177 Harrisburg, Pa 17108-1177 YOU ARE HEREBY NOTIFIED, that the Answer to Complaint set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Respectfully submitted, NEALON & GOVER -?V By. MZ44? Matthew R. Gover, Esquire Attorney I.D. #47593 301 Market Street -- 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 KEVIN L. MILLER and : IN THE COURT OF COMMON PLEAS ANNETTE MILLER (wife), : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED AND NOW, comes the Defendant, Harry Stoppe, by and through his attorneys, NEALON & GOVER, P.C., and files the following Answer to Plaintiffs Complaint: 1.-4. Admitted. 5.-10. Denied pursuant to Pa.R.Civ.P. 1029(e). COUNT I - NEGLIGENCE KEVIN L. MILLER V HARRY STOPPE 12. Paragraphs 1 through 10 of Defendant's Answer are incorporated herein by reference thereto. 13. Denied pursuant to Pa.R.Civ.P. 1029(e). 14--20. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted and proof is demanded at trial. WHEREFORE, Harry Stoppe, respectfully request that the Complaint be dismissed with costs of this action. 21. Paragraphs 1 through 20 of Defendant's Answer are incorporated herein by reference thereto. 22. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted and proof is demanded at trial. WHEREFORE, Harry Stoppe, respectfully request that the Complaint be dismissed with costs of this action. 23. Paragraphs 1 through 22 of Defendant's Answer are incorporated herein by reference thereto. 24. Plaintiffs claims may be barred in whole or in part by application of the Pennsylvania Motor Vehicle Financial Responsibility Act. WHEREFORE, Defendant, Harry Stoppe, respectfully requests that the Complaint be dismissed with costs of this action. Respectfully submitted, NEAL OV A". By: M R. Gover, Esquire Attorney I.D. #47593 301 Market Street -- 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 I, Harry Stoppe, verify that the statements made in the foregoing Answer is true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. Harry Stoppe AND NOW, this day of September, 1999, 1 hereby certify that I have served the foregoing Answer on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David H. Rosenberg, Esquire HANDLER, HENNING & ROSENBERG 319 Market Street P.O. Box 1177 Harrisburg, Pa 17108-1177 Q9?04 Matthew R. Gover Esquire m m to tt 0 z a 0 Oj O 2 = n 0 F ,,nn a J m m 2 V O Q m J 0 (A W z O Z , m 2 0 N a U) O W J W O w a a Q m 0 a a f 7 Z ? _ m 0 m n rc C 6 i xx. wim.?o aua-.x csuC. ieasim :ox wxm mnruarvxxuxi ams nr ?o xarsuia r',mn ms nr vz" KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION - AT LAW JURY TRIAL DEMANDED NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is hereby given that Harry Stoppe appeals from the award of the board of arbitrators entered in this case on August 20, 2001. A copy of this award is attached hereto and incorporated herein by reference. A jury trial is demanded F>?. I hereby certify that the compensation of the arbitrators has been paid. Respectfully submitted, By: Date: NEF' " W. st: 51937 2411 North Front Street Harrisburg, PA 17110 717/232-9900 K4" A X, iL1 , ((t v? Plalntifts. VS. Defendant 04 w : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA q 4 - vo Y6 NO. 30044M CIVIL TERM Jury Trial Demanded OATH We do solemnly swear (or affirm).that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. Date of Hearing: 2-, Date of Award: 2- .L Arbitrator, dissents. NOTICE OF ENTRY OF AWARD if applicable.) Now, theQ20 -,)day of _ / JrT_ 2001, at entered upon the docket and notice thereof given by mail to. 00 parties?o ei o th ys bove award was Arbitrators' compensation to be - i? / the paid upon appeal: Prothonotaryy Deputy We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) CERTIFICATE OF SERVICE AND NOW, this 5" day of September, 2001, 1 hereby certify that I have served the foregoing NOTICE OF APPEAL OF AWARD FROM BOARD OF ARBITRATORS on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: David H. Rosenberg HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Andrew C. Lehman, Esquire (l- n N Ul ?- ?; l il) 1 1. ." a CJ O Q 0 n W W ?<3 W? 'Q 0 J N V 0 Q Y y u Z N Wj>I?Z Z 0 Z a Q N K V J w Z W 6 ¢ v N Z N Q Q I µNTIW AOTIIO•q'tl110•f9131[0 "ONWNOf 7N1•IYNWVNtl l.11Y19'lw f0 NolN VN31 U1Y Iw KEVIN L. MILLER, Plaintiff V. HARRY STOPPE, Defendant 0,1? rtl& : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 99-4086 : CIVIL ACTION - LAW JUN 2 9 20 NOTICE OF HEARING TO: Matthew R, Gover, Esquire 301 Market Street- 9°i Floor Harrisburg, PA 17108-0865 /Stephen L. Bloom, Esquire 2100 Longs Gap Road Carlisle, PA 17013 Henry F. Coyne, Esquire 3901 Market Street Camp Hill, PA 17011-4227 vAanne B. Costopoulos, Esquire 1400 N. Second Street Harrisburg, PA 17102 And now this 28"' day of June, 2001, you are hereby notified that the Arbitrators appointed in the above-captioned matter will hold a hearing for the purpose of their appointment as follows: Date: Monday, August 20, 2001 Time: 9:30 o'clock a.m. Place: Hearing Room, Old Courthouse, 2"d Floor, Carlisle Cumberland County, Pennsylvania 17013 Counsel shall immediately notify all arbitrators if settlement is reached prior to the hearing. Anyone who finds the hearing date unsuitable is responsible for making all arrangements with counsel and the arbitrators for a suitable date, time, and place. Parties wishing to argue legal points will be expected to have copies of relevant materials for each arbitrator and opposing counsel at the commencement of the hearing. HANDLER„i?FN NG 8c ROSENBERG By: `/? David Rosenberg 1300 inglestown Road P.O. Box 1177 Harrisburg, PA 17108 (717) 238-2000 cc: Court Administrator Prothonotary Bulletin Board KEVIN L. MILLER Plaintiff VS. : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA : NO. 994086 HARRY STOPPE, : CIVIL ACTION - LAW Defendant NOTICE OF HEARING TO: David H. Rosenberg, Esquire Matthew R. Gover, Esquire 319 Market Street 301 Market Street-9th Floor PO Box 1177 PO Box 865 Harrisburg, PA 17108-1177 Harrisburg, PA 17108.0865 Stephen L. Bloom, Esquire Jeanne B. Costopoulos, Esquire 2100 Longs Gap Road 1400 N Second Street Carlisle, PA 17013 Harrisburg, PA 17102 And now this 25th day of June, 2001, you are hereby notified that the Arbitrators appointed in the above captioned matter will hold a hearing for the purpose of their appointment as follows: Date: Tuesday, July 24, 2001 Time: 2:00 o'clock p.m. Place: Hearing Room, Old Courthouse, 2nd Floor, Carlisle Cumberland County, Pennsylvania 17013 Counsel shall immediately notify all arbitrators if settlement is reached prior to the hearing. Anyone who finds the hearing date unsuitable is responsible for making all arrangements with counsel and the arbitrators for a suitable date, time and place. Parties wishing to argue legal points will be expected to have copies of relevant materials for each arbitrator and opposing counsel at the commencement of the hearing. COYNE & COYNEP.C. R , Z' Henry F. Coyne, squire 3901 Market Street Camp Hill, PA 170114227 (717) 737-0464 cc: Court Administrator Prothonotary Bulletin Board KEVIN L. MILLER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HARRY STOPPE, NO. for CI J & l &l?j Defendant JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY:: Please issue a Writ of Summons against the Defendant, Harry Stoppe, who resided at the following address: Harry Stoppe 416 Deerfield Road Camp Hill, PA 17011 and have the Sheriff of Cumberland County serve the same. Respectfully submitted, HANDLER, HENNING & ROSENBERG !Ct Davi H Rosenberg, Esquire F Su eme Court I.D. # 20569 3 9 Market Street .0. Box 1177 Harrisburg, PA 17108-1177 (717) 238-2800 DATED: `) J - ? `7 Attorney for Plaintiff KEVIN L. MILLER, Plaintiff V. HARRY STOPPE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED SHERIFF'S DIRECTIONS TO THE SHERIFF OF CUMBERLAND COUNTY: Please serve the Writ of Summons upon Defendant, Harry Stoppe, at the address listed below: Harry Stoppe 416 Deerfield Road Camp Hill, PA 17011 Respectfully submitted, HANDLER, HENNING & DATED: 7? " / - C/ ° By: .? Dav' H Rosenberg, Esquire S reme Court I.D. #20569 19 Market Street .0. Box 1177 Harrisburg, PA 17108-1177 (717) 238-2800 Attorney for Plaintiff nu :J Commonwealth of Pennsylvania County of Cumberland Kevin L. Miller V& Harry Stoppe 416 Deerfield Road Camp Hill, PA 17011 To _.Harr_}c tnppe_____ Court of Conunon Pleas Yo. _______99 _4086 Civil -Term ........ t9 III ______Civil-Action---Law ------------------ You are hereby notified that Kevin L. Miller °-------------------- --- --- -- ------------------------------------------------------- the Plaintiff haS commenced an action in ------ N Id1_At tim- _Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) ------------- .horns._B.--4QD-CL ------------------ Prothonotary Date ---- July-`----------------- 19_99 -B??.L- ?--- -------' Deputy 1 1 I1 j j q Q I tow -I a ? o 41 r v .a 1 1 a .? ; W LL ' I N?7y [qr_ o i i W ?.] [ay ya r-1 i 1 r_ a, a + °m pi mo t?l t7 N W H G 7 ? i .? >; x ?'x xx a Co' N ?1 1 2. Q . M i U 1 ? NC1 N-INik 1 ~ (1 ? a ? ? o I 1 ; ?O , F rl W i i 1 ?'7p r-Io r-IQ d 1 'd' U ; ; q M W t? N x KEVIN L. MILLER : IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 99-4086 HARRY STOPPE, : CIVIL ACTION - LAW Defendant NOTICE OF HEARING TO: David H. Rosenberg, Esquire Matthew R. Gover, Esquire 319 Market Street 301 Market Street-9th Floor PO Box 1177 PO Box 865 Harrisburg, PA 17108-1177 Harrisburg, PA 17108-0865 Stephen L. Bloom, Esquire Jeanne B. Costopoulos, Esquire 2100 Longs Gap Road 1400 N Second Street Carlisle, PA 17013 Harrisburg, PA 17102 And now this 25th day of June, 2001, you are hereby notified that the Arbitrators appointed in the above captioned matter will hold a hearing for the purpose of their appointment as follows: Date: Tuesday, July 24, 2001 Time: 2:00 o'clock p.m. Place: Hearing Room, Old Courthouse, 2nd Floor, Carlisle Cumberland County, Pennsylvania 17013 Counsel shall immediately notify all arbitrators if settlement is reached prior to the hearing. Anyone who finds the hearing date unsuitable is responsible for making all arrangements with counsel and the arbitrators for a suitable date, time and, place. Parties wishing to argue legal points will be expected to have copies of relevant materials for each arbitrator and opposing counsel at the commencement of the hearing. CO COYNE, P.C. Henry F. Coyne, fsquir'e 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 cc: Court Administrator Prothonotary Bulletin Board KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION - AT LAW : JURY TRIAL DEMANDED PRAECIPE Please enter the undersigned's appearance on behalf of the Defendant, Harry Stoppe, with regard to the above-captioned matter. Respectfully submitted, NEALON & GOVER By V ?'Aj Matthew R. Gover, Esquire Attorney I.D. #47593 301 Market Street - 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 Date: 07/26/99 CERTIFICATE OF SERVICE AND NOW, this 26" day of July, 1999, 1 hereby certify that I have served the foregoing Praecipe on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David H. Rosenberg, Esquire HANDLER, HENNING & ROSENBERG 319 Market Street P.O. Box 1177 Harrisburg, Pa 17106-1177 440ja--? Matthew R. Gover Esquire i N N 10 0 ¢ 0 O 0 0 4 0 o a Q F n x o N < o Q m < W N w i w l C m i z o Z N 2 Q N R O w W¢ J N 0 a W w 0 ¢ N 3 Z a Q E m < 0 N n m 6 x v=u•nnlm :oxwro, I-Y N .., YT vIM. llv KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION -AT LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please issue a Rule upon the Plaintiff to file a Complaint within twenty (20) days or suffer a judgment of non pros. Date: 07/26/99 Respectfully submitted, NEALON & GOVER By: -9 ?7iq Matthew R. Gover, Esquire Attorneyl.D. #47593 301 Market Street - 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 RULE TO THE PLAINTIFF: A Rule is hereby issued upon you to file a Complaint within twenty (20) days of service of this Rule or suffer a judgment of non pros. DATED: July Q ?f 19cz J /'/ G Prothonotary P N N 0 0 2 0 < x n 0 a 0 N U 0 u a m J Y W x } 0 O Z Z Z F M Z J " O w a a w 0 Z a a F m ( ? N N R R I wnaiw•w9aun•nm?u•mmu :ONE SHERIFF'S RETURN - REGULAR CASE NO: 1999-04086 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLER KEVIN L VS. STOPPE HARRY CPL. TIMOTY REITZ Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon STOPPE HARRY the defendant, at 14:01 HOURS, on the 14th day of July 1999 at 416 DEERFIELD ROAD CAMP HILL, PA 17011 ,CUMBERLAND County, Pennsylvania, by handing to HARRY STOPPE a true and attested copy of the WRIT OF SUMMONS and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 Service 8.00 ?? Affidavit Surcharge 8.00 2 mas i S G_S-07/ DL/R HENNING & ROSENBERG by T ti u y r Sworn and subscribed to before me this ?L 0" day o 19 A.D..? ?-Fr n 7 KEVIN L. MILLER, Plaintiff V. HARRY STOPPE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM : CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this7l day of September, 1999, 1 hereby certify that 1 have, on this date, served the within Plaintiff's Answers to Defendant's Interrogatories -- First Set, and Plaintiff's Responses to Defendant's Request for Productions - First Set , by sending a true and correct copy of same to their attorney of record and including copies to all parties of interest via first class mail, postage prepaid, as follows: Matthew Gover, Esquire NEALON & GOVER P.O. Box 865 Harrisburg, PA 17108-0865 HANDLER, HENNING & ROSENBERG By David H osenberg, Esquire Attorn yID # 20569 P.O. m 1177 Harrisburg. PA 17108-1177 (717) 238-2000 I 1 LL vi KEVIN L. MILLER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 99-4086 CIVIL 1999 HARRY STOPPE, Defendant RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: David H Rosenberg counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ 9.500.00 The counterclaim of the defendant in the action is $1,500.00 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Matthew R. Gover, Esq. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respect Ily submitted, ORDER OF COURT AND NOW, 494 in onsideration of the I foregoing petition, _ Esq., 4h?6. l ,66VnV Esq., and ?. Esq., are appointed arbitrators in the above captioned action (or actions) as yed for. By the Court, 4 AA P.J. -- - Diu T? ?c T c O ` O ( t ? r CO '3 1.i t T c ?h O \ \ v N. KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION -AT LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a Subpoena for documents and things pursuant to Rule 4009.22, Defendant, Harry Stoppe, certifies that: 1. A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least 20 days prior to the date on which the Subpoena is sought to be served, 2. A copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate. 3. No objection to the Subpoena has been received, and 4. The Subpoena, which will be served, is identical to the Subpoena, which is attached to the Notice of Intent to Serve the Subpoena. DATE: 10/19/99 Z ?,MATTHEW R. GOVER, ESQUIRE ATTORNEY FOR DEFENDANT -1 Ion October 19, 1999 Mid Penn Urology 423 N. 21" Street Camp Hill, PA 17011 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: L. 301 MARKET STREET • 9m FLOOR P.O. BOX 865 HARRISBURG, PA 17108 (717) 232-9900 FAX: (717) 236.9119 JAMES G. NEALON, IA MATTHEW R. COVER BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal NEALON & GOVER r?,rJ /bjb Enclosures , KEVIN L. MILLER, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. HARRY STOPPE, DEFENDANT : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Mid Penn Urology Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9' Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 9' Floor Harrisburg, PA 17101 717.232-9900 Attorney for Defendant DATED: to -1 Seal of the Court BY THE COURT: EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Mid Penn Urology ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-54-3970 DATE OF BIRTH: 1/8/64 4 1 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: Mid Penn Urology : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Mid Penn Urology, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian L . salon October 19, 1999 David Smith, D.C. 1315 N. Mountain Road Harrisburg, PA 17112 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET • 9- FLOOR P.O. BOX 86S HARRISBURG, PA 17108 (717)232.9900 FAX: (717) 236.9119 JAMES G. NEALON, III MATTHEW R. GOVER BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena. I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal NEALON & GOVER /bib Enclosures KEVIN L. MILLER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: David Smith, D.C. Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9' Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 9' Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant DATED: 6 '/? y Seal of the Court BY THE COURT: G rr<? i n ONQT ?tY / I /I EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: David Smith, D.C. ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY 163-54-3970 DATE OF BIRTH: 118164 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: David Smith, D.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION -AT LAW : JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for David Smith, D.C., certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on DATE: been produced. Records Custodian Ion October 19, 1999 Rehab Hospital 175 Lancaster Boulevard Mechanicsburg, PA 17055 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET • 9- FLOOR P.O. BOX 865 HARRISBURG, PA 17108 (717) 232-9900 FAX: (717) 236-9119 JAMES G. NEALON, M MATTHEW R. DOVER BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal 111 NEALON & GOVER /bjb Enclosures KEVIN L. MILLER, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Rehab Hospital Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9" Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: DATED: U IS Seal of the Court Matthew R. Gover, Esquire 301 Market Street, 9'" Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant BY THE COURT: EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Rehab Hospital ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-54-3970 DATE OF BIRTH: 1/8/64 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: Rehab Hospital : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Rehab Hospital, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on DATE: been produced. Records Custodian Nealon :?sOV?1? ATTORNEYS AT LAW October 19, 1999 Harrisburg Hospital 101 South Front Street Harrisburg, PA 17101 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET' 9^' FLOOR P.O. BOX 86S HARRISBURG, PA 17108 17171232-9900 FAX: (717) 236.9119 JAMES G. NEALON, M MATTHEW R. GOVEA BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal / NEALON & GOVER /bjb Enclosures KEVIN L. MILLER, PLAINTIFF v. HARRY STOPPE, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Harrisburg Hospital Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9" Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 9" Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant DATED: Seal of the Court BY THE COURT: EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Harrisburg Hospital ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-54-3970 DATE OF BIRTH: 1/8/64 KEVIN L. MILLER, PLAINTIFF V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT TO: Harrisburg Hospital JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Harrisburg Hospital, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian L Ion October 19, 1999 Dr. Bruce Goodman 1515 North Front Street Harrisburg, PA 17102 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET • 9TM FLOOR P.O. BOX 865 HARRISBURG, PA 17108 (717) 232-9900 FAX: (717) 236-9119 JAMES G. NEALON, D1 MATTHEW R. GOVER BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal NEALON & GOVER lbjb Enclosures KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Bruce Goodman Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Markel Street, 9' Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 9`" Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant DATED: d r' Seal of the Court BY THE COURT: EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Dr. Bruce Goodman ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-54-3970 DATE OF BIRTH: 1/8/64 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: Dr. Bruce Goodman : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Dr. Bruce Goodman, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian Nealon ATTORNEYS AT LAW Dr. Emily Matlin 4824 Londonderry Road Harrisburg, PA 17109 October 19, 1999 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET • 9TM FLOOR P.O. BOX 865 HARRISBURG, PA 17108 (717)232.9900 FAX: (717) 236.9119 JAMES G. NEALON, III MATTHEW R. COVER BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal / NEALON & GOVER /bib Enclosures KEVIN L. MILLER, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Emily Matlin Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9' Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 9' Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant BY THE COURT: DATED: 0' - 471 Seal of the Court PRO' LI - C Q?j EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Dr. Emily Matlin ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-54-3970 DATE OF BIRTH: 1/8164 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: Dr. Emily Matlin : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4086 CIVIL TERM CIVIL ACTION -AT LAW : JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Dr. Emily Matlin, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian ealon October 19, 1999 Holy Spirit Hospital N. 21" Street Camp Hill, PA 17011 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET • 9- FLOOR P.O. BOX 863 HARRISBURG, PA 17108 X7171232-9900 FAX: (717) 236-9119 JAMES G. NEALON, M MATTHEW R. GOVER BRIAN W PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, (2),J/j Barbara Baker, Paralegal /bjb NEALON & GOVER Enclosures KEVIN L. MILLER, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Holy Spirit Hospital Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon 8 Gover, 301 Market Street, 9' Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 911 Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant DATED:--16)- Seal of the Court BY THE COURT: EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Holy Spirit Hospital ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY 163-54-3970 DATE OF BIRTH: 1/8/64 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: Holy Spirit Hospital : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Holy Spirit Hospital, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on -.-.-.--have been produced. DATE: Records Custodian deal®n _ ,over ATTORNEYS AT LAW October 19, 1999 Dr. Albert Heck 108 Lowther Street Lemoyne, PA 17043 In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: 301 MARKET STREET -9TM FLOOR P.O. BOX 865 HARRISBURG, PA 17108 (717)232.9900 FAX: (717) 2369119 JAMES G. NEALON, Ill MATTHEW R. GOVER BRIAN W. PERRY DAVID J. FREED CHRISTOPHER J. KNIGHT You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, Barbara Baker, Paralegal NEALON & GOVER /bjb Enclosures KEVIN L. MILLER, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4066 CIVIL TERM HARRY STOPPE, : CIVIL ACTION - AT LAW DEFENDANT : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Albert Heck Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 9" Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: Matthew R. Gover, Esquire 301 Market Street, 9' Floor Harrisburg, PA 17101 717-232-9900 Attorney for Defendant DATED: U' Seal of the Court BY THE COURT: EXPLANATION OF REQUIRED RECORDS TO: Custodian of Records For: Dr. Albert Heck ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-64-3970 DATE OF BIRTH: 1/8/64 KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT TO: Dr. Albert Heck : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4066 CIVIL TERM : CIVIL ACTION - AT LAW : JURY TRIAL DEMANDED NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Dr. Albert Heck, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian 3,01 MARKET STREET • 9- FLOOR P.O. BOX 865 HARRISBURG, PA 17108 (717) 232.9900 FAX: (717) 236.9119 Herd Chiropractic Clinic 2704 Market Street Camp Hill, PA 17011 October 19, 1999 CHRISTOPHER J. KNIGHT JAMES G. NEALON, DI MATTHEW R. GOVER BRIAN W. PERRY DAVID J. FREED In Re: Kevin L. Miller Social Security #: 163-54-3970 Dear Records Custodian: You are being served with a Notice and Subpoena for you to bring the records referred to in the Subpoena for examination by the undersigned at the time and place indicated. In serving upon you the Notice and Subpoena, I am proceeding under applicable Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent to Service the Subpoena was served upon the attorney for the Plaintiff more than 20 days ago. No objections to the Subpoena have been filed. If you would prefer, you may in advance of the deposition date send us photocopies of the records. With such photocopies, please include your statement for the cost of preparing the same, which we will promptly pay. In addition, you must complete the enclosed Certificate of Compliance. Upon receipt of such photocopies and the completed Certificate of Compliance by this office, your appearance will be canceled and the Subpoena withdrawn. Your cooperation in this matter is appreciated. Should there be any questions, please telephone the undersigned at the above number. Sincerely, /bib Enclosures Barbara Baker, Paralegal NEALON & GOVER KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99.4086 CIVIL TERM : CIVIL ACTION -AT LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Herd Chiropractic Clinic Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: SEE ATTACHED at the offices of Nealon & Gover, 301 Market Street, 90 Floor, Harrisburg, PA 17101. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: DATED: I0-I5 .q9 I Seal of the Court Matthew R. Gover, Esquire 301 Market Street, 9' Floor Harrisburg, PA 17101 717.232-9900 Attorney for Defendant BY THE COURT: EXPLANATION OF RE UIRED RECORDS TO: Custodian of Records For: Herd Chiropractic Clinic ANY AND ALL MEDICAL RECORDS, OFFICE NOTES, CORRESPONDENCE, MEMORANDUM, INSURANCE FORMS, PROGRESS NOTES, REPORTS OR OTHER DOCUMENTS RELATING TO ANY EXAMINATION, CONSULTATION, CARE OR TREATMENT. DATES REQUESTED: Up to and Including the Present SUBJECT: Kevin L. Miller SOCIAL SECURITY #: 163-54-3970 DATE OF BIRTH: 1/8/64 KEVIN L. MILLER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED NOTICE TO: Herd Chiropractic You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, Records Custodian for Herd Chiropractic, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the Subpoena issued on have been produced. DATE: Records Custodian Yay KEVIN L. MILLER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-4086 CIVIL TERM : CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED NOTICE OP INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, Harry Stoppe, intends to serve Subpoenas identical to the ones that are attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoenas. If no objection is made the Subpoenas may be served. Date: 9/29/99 ?\I Matthew R. Gover, Esquire Attorney for the Defendant CERTIFICATE OF SERVICE AND NOW, this 19th day of October, 1999, 1 hereby certify that I have served the foregoing Certificate Prerequisite to Service of a Subpoena on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David Rosenberg, Esquire P.O. Box 1177 Harrisburg, PA 17108 -"C'MrP n I Matth w R. Gover, Esquire s cl, r ?L C'i o G-'? C.7 . •LI ?l N m ¢ co 0 0 1 Q 0 F m L7 0 Q m wog z r m z z Q m tr N O W J W O w a a Q m 1Z a Q Y m < 0 N n rc a I NMp110• 011110 rn4?11o•mnuo ONnVOJ 9N1'1MW VNtl31Nl ?]1YLY 11V 10 NORINO 'T/"' nw19'1N KEVIN L. MILLER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HARRY STOPPE, NO. 99-4086 CIVIL TERM Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff, Kevin L. Miller, by and through his attorneys, HANDLER, HENNING & ROSENBERG, by David H Rosenberg Esquire, who answers Defendant's New Matter as follows: 23. The averment contained in Paragraph 23 of Defendant's New Matter requires no response. 24. Denied. The averment contained in Paragraph 24 of Defendant's New Matter is a conclusion of law to which no responsive pleading is required. To the extent that a response is required, the averment is specifically denied. WHEREFORE, Plaintiff, Kevin L. Miller, seeks damages from Defendant, Harry Stoppe, in the amount in excess of Twenty-Five Thousand Dollars ($25,000), and demands a trial by jury. DATE: 1 '? 7 HANDLER, HENNING 8, ROSENBERG By: / , David H osenberg Supre a Court I.D. No. 20569 319 Market Street P.O. Box 1177 Harrisburg, PA 17108-1177 (717) 238-2000 Attorney for the Plaintiff KEVIN L. MILLER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HARRY STOPPE, NO. 99-4086 CIVIL TERM Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE The undersigned, an employee of the law firm of HANDLER, HENNING & ROSENBERG, hereby certifies that on this date, a copy of Plaintiffs Reply to Defendant's New Matter was served on Defendant's counsel, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid as follows: Matthew R. Gover, Esquire NEALON & GOVER 301 Market Street, 91h Floor P.O. Box 865 Harrisburg, PA 17108-0865 HANDLER, HENNING & ROSENBERG Dated: Id ? /95 5 Byy (? y?c.tiL d?,tiz Nancy L. Bi tline, Secretary f ; C (• V :: `. ?i.? fi??.. ?.? ?. '?..i ? __ r_; G ??- rn `"7 ?-' c. ? J ?Kn,Ak"c.1 ', AA1 4k4r : IN THE COURT OF COMMON PLEAS OF y/vv?, wt C f ' ALV-1 wA : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs d q _ g0 .5s6 VS. : NO.3004aW CIVIL TERM ?j f ra"i Jury Trial Demanded Defendant OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. Arbitrator, dissents. if applicable.) Date of Hearing: 2 Date of Award: 2_6 /7 -L! ty NOTICE OF OF AWARD Now, the 0.1- day of , 2001, at /1:G2 /gym., the above award was entered upon the docket and notice thereof given by mail to the parties or their attor ys. Arbitrators' compensation to be paid upon appeal: Prothonotary $ '(70.Ur? lp G//Jii Deputy We, the undersigned arbitrators, having been duly appointed and swom (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) A C6Py 4c-?, C. A? 1 CILrn ?D- t (?Cc /4?i? /I '9411 b .120: , - PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ( ) Assumpsit ( ) Trespass KEVIN L. MILLER, (Plaintiff) V5. HARRY STOPPE, (Defendant) VS. ( ) Trespass (Motor Vehicle) ( X) Civil (other) 12/31/01 The trial list will be called on and Trials commence on 1128102 Pretrials will be held on 1/9/02 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) 4086 No. 99 _ Civil 1999_-- Indicate the attorney who will try case for the party who files this praecipe: David H Rosenberg, Esq. Andrew Lehman, Esq. Indicate trial counsellor other parties if known: ---- ------ ---- --- - - This case is ready for trial. Date: 11151( Signed: Print Name: David H senbera Attnmav fnr: Plaintiff ?- ra ?_ ??. ??; - - ?, -i ?n 1r_? ?. ?_ .._ "_ ?._. c.J I KEVIN L. MILLER, PLAINTIFF V. HARRY STOPPE, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99.4086 CIVIL TERM CIVIL ACTION - AT LAW JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Defendant, Harry Stoppe, with regard to the above-captioned matter. Respectfully submitted, NEALON & GOVER, P.C. By: ndrew ehman, Esquire Attorney I.D. No. 81937 2411 North Front Street /; Harrisburg, 17110 Date: 717 232-9900 CERTIFICATE OF SERVICE AND NOW, this 31st day of December, 2001, 1 hereby certify that 1 have served the foregoing Praecipe on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: David H. Rosenberg, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, Pa 17110 Andrew C. Lehman, Esquire 77 M 7 c.: `u I 0 a o r ? ? 3 w ? a rc z o 0 I m J y 0 Q = Z l= a Z Q o N R U Q z W rc Q a m Z N Q I n A ZSI 0 'ON AVOI M .a 11103, J.s 11 r KEVIN L. MILLER IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 99-4086 CIVIL TERM HARRY STOPPE, Defendant JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Plaintiff, Kevin L. Miller, with regard to the above-captioned matter. Respectfully submitted, HANDLER, HENNING & ROSENBERG By: Jason C. Imler, Esquire Attorney I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Date: Attorney for Plaintiff ?- 7 ??d I CERTIFICATE OF SERVICE AND NOW, this 4" day of January, 2002, I hereby certify that I have served the foregoing Praecipe on the following by depositing a true and correct copy of the same in the United States mails, postage prepaid, addressed to: Andrew C. Lehman, Esquire NEALON & GOVER, P.C. 2411 North Front Street Harrisburg, PA 17110 Date: / - ?/ - Owl Jason Imler, Esquire ii; r? ?" c _ ..,, _ ' ? -_, _i ',? ?? e' i ?o - it "u -; ? ;•,? ?_, v t r a r A, KEVIN L. MILLER IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 99-4086 CIVIL TERM HARRY STOPPE, Defendant JURY TRIAL DEMANDED PLAINTIFF'S POINTS FOR CHARGE. AND NOW, comes the Plaintiff, Kevin Miller, by and through his attorneys, Handler, Henning & Rosenberg, by Jason C. hnler, Esquire, and provides the following jury instructions which he moves the Court to read to the jury. Date: Respectfully submitted, HANDLER, HENNING & ROSENBERG i By: Jason C.1 er, Esquire Supreme Court I.D. # 87911 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff 191 Under all the law and evidence presented, 1 direct that you return a verdict in favor of the Plaintiff, Kevin Miller, and against the Defendant on the issue of liability. -9l 2. The legal term negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. Generally, it is for you to determine how a reasonably prudent person would act in those circumstances but you need not do so because the Defendant has admitted negligence in this case. Therefore, you are to find Defendant, Harry Stoppe, negligent. Under all the law and evidence presented, I direct that you return a verdict in favor of the Plaintiff, Kevin Miller, and against the Defendant on the issue of negligence. Pa SSJI (Civ.) §3.01 3. In order for Plaintiff, Kevin Miller, to recover in this case, the defendant's negligent conduct must have been a substantial factor in bringing about the accident. This is what the law recognizes as legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident. Pa SSJI (Civ.) §3.25. .91 1 4. An Act of Assembly of this Commonwealth (75 Pa.C.S.A. §3324), in effect at the time the accident occurred, provided in part: The driver of a vehicle about to enter a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered. This act dictates the duty of care required of someone in the same situation as the defendant. Defendant violated this Act and therefore you must find Defendant negligent as a matter of law. However, before you answer the question of Defendant's liability, you mast determine whether this negligence was a substantial factor in bringing about plaintiffs injury. Pa SSJI (Civ.) §3.30. ., 5. One who is operating a vehicle upon highways has a duty to be continuously alert, to perceive any warning of danger that is reasonably likely to exist, and to have the vehicle under such control that injury to persons or to property can be averted. Wilson Freight Forwarding Co. v..Seal, 79 A.2d 648 (Pa. 1951). , t 1 a, 6. In civil cases such as this one, the plaintiff has the burden of proving those contentions which entitle him to relief. When a party has the burden of proof on a particular issue, his contentions on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, i I'you will, ofan ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidence favorable to the plaintiff; onto the other place all of the evidence favorable to the defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the slightest degree, in favor of the plaintiff, your verdict must be for the plaintiff. If the scales tip in favor of the defendant, or are equally balanced, your verdict must be for the defendant. In this case, the plaintiff has the burden of proving the following propositions: that the defendant was negligent, and that that negligence was a substantial factor in bringing about the accident. The plaintiff has met his burden of proving the defendant was negligent, therefore you need only determine if the defendant's negligence was a substantial factor in bringing about the accident. If, after considering all the evidence, you feel persuaded that this proposition is more probably true than not true, your verdict must be for the plaintiff. Otherwise, your verdict should be for the defendant. Pa SSJI (Civ.) §5.50. 1 7. This is a civil case and not a criminal case. The Plaintiff, Kevin Miller, need not prove his case beyond a reasonable doubt. I lis obligation with reference to the burden of proof is proof by a preponderance of the credible evidence and testimony. Petro v. Secary Estate, 403 Pa. 540 (1961). Although you may find that Kevin Miller had a pre-existing injury, the Defendant is nevertheless liable for all harm caused by his negligence. It is irrelevant whether Kevin Miller's prior physical condition makes the injury caused by the Defendant greater. The negligent Defendant takes the Plaintiffas he finds him and is liable Ibr the full extent of damage even though Kevin Miller's particular condition or physical size causes more harm than the Defendant could have foreseen. The Defendant is still liable for Kevin Miller's total injuries. Botek v. Mine Safety Appliance Corp.-, 531 Pa. 160, 611 A.2d 1174 (1992); Heck v. Beryllium Corp., 424 Pa. 140, 143, 226 A.2d 87,90 (1966); Fretts v. Pavetti, 282 Pa.Super. 166,422 A.2d 881, 885 (1989); Geyer v. Steinbronn, 351 Pa.Super 536,506 A.2d 901, 902 (1986); Tabor v. Miller, 389 F.2d 645, 647-648 (3rd Cir. 1968), cert. denied, 391 U.S. 915 (1968); Denver v. Forbes, 189 F.Supp. 575, 577-78 (E.D. Pa. 1960). r 9. A negligent party is subject to liability for harm to another, although a physical condition of that person not known to the actor makes the injury greater than that which the actor, as a reasonable person, should have foreseen as a probable result of his or her conduct. If you find that the plaintiff had a pre-existing injury that was aggravated by the defendant's negligence, you must find the defendant responsible for the enhancement of the plaintiffs injury. Pa SSJI (Civ.) §6.23. a , 10. Tile number of wimessesoflcredby one side or theotherdoes not, in itself,determine the weight of the evidence. It is a factor, but only one of many factors which you should consider. Whether the witnesses appear to be biased or unbiased; whether they are interested or disinterested persons, are among the important factors which go to the reliability of their testimony. The important thing is the quality of the testimony of each witness. In short, the test is not which side brings the greater number of witnesses or presents the greater quantity of evidence; but which witness or witnesses, and which evidence, you consider most worthy of belief. Even the testimony of one witness may out weigh that of many, if you have reason to believe her testimony in preference to theirs. Obviously, however, where the testimony of the witnesses appear to you to be of the same quality, the weight of numbers assumes particular significance. Pa SSJI (Civ.) §5.03. 11. You may find inconsistencies in the evidence. Even actual contradictions in the testimony of witnesses do not necessarily mean that any witness has been wilfully false. Poor memory is not uncommon. Sometimes a witness forgets, sometimes he remembers incorrectly. It is also true that two persons witnessing an incident may see or hear it differently. If different parts of the testimony of any witness or witnesses appear to be inconsistent, you the jury should try to reconcile the conflicting statements, whether of the same or different witnesses, and you should do so if it can be done fairly and satisfactorily. If, however, you decide that there is a genuine and irreconcilable conflict of testimony, it is your function and duty to determine which, if any, of the contradictory statements you will believe. Pa SSJI (Civ.) §5.04. 12. If you decide that a witness has deliberately falsilied his testimony on a significant point, you should take this into consideration in deciding whether or not to believe the rest of his testimony; and you may refuse to believe the rest ofhis testimony, but you are not required to do so. Pa SSJI (Civ.) §5.05. 1. 1 13. In this case you have heard what the law calls circumstantial evidence. Circumstantial evidence consists of proof of facts, or circumstances, from which it is reasonable to infer the existence of another fact. For example, a man may be able to testify that it was snowing at a particular time because he looked outside and saw the snow falling, It may be, however, that he did not actually see the snow coming down, but if when he gets up one morning and looks outside he sees fresh snow where there was none the night before, he can testify to these facts and the jury may infer that it snowed during the night. You may consider circumstantial evidence and you should give it whatever weight you believe it deserves. Pa SSJI (Civ.) §5.07. 14. A witness who has special knowledge, skill, experience, training or education in a particular science, profession or occupation may give his opinion as an expert as to any matter in which he is skilled. In determining the weight to be given to his opinion, you should consider the qualifications and reliability of the expert and the reasons given for his opinion. You are not bound by an expert's opinion merely because he is an expert; you may accept or reject it, as in the case of other witnesses. Give it the weight, if any, to which you deem it entitled. Pa SSJI (Civ.) §5.30. 15. Members of the Jury, if you find that the Defendant is liable to the Plaintiff, Kevin Miller, you must then find an amount of money damages which you believe will fairly and adequately compensate the Plaintiff for all the physical and emotional injuries he has sustained as a result of this accident. The amount which you award today must compensate the Plaintiff, Kevin Miller, completely for damages sustained in the past, as well as damages he will sustain in the future. Pa. SSJI (Civ.) §6.00. 16. The paramount rule in assessing damages is that every person unjustly deprived of his rights should at least be fully compensated for the injuries he sustains. The primary function of compensatory damages is to shift the loss from an innocent party to one who is at fault. Spangler v. Helms New York-Pillshnrgh Motor E.vpre.vv, 393 Pa. 482 (1959); Esmond v. Liscia, 209 Pa.Super. 200 (1966). 17. It is a basic principle of law that damages are to be compensatory to the full extent of the injury sustained. Legal remedies seek to put the injured person in a position as nearly as possible equivalent to his or her position prior to the accident. That is, if injury occurs, the law attempts to place the injured party in the same position he occupied before the injury. Moorhead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001) (citing lneollingo v. Ewing, 282 A.2d 206 (Pa. 1971)); Trotsky v. Civil Service Contm'n, City q (Pittsburgh, 652 A.2d 813 (Pa. 1995) (citing Restatement (Second) of Torts, Section 901); Hahn v. Atlantic Richfield Co., 625 F.2d 1095, 1 104 (3' Cir. 1980), cert. denied, 450 U.S. 891, 101 S.Ct. 1516 (1981). 18. In this case, ladies and gentlemen, if you find that the Plaintiff, Kevin Miller, received injuries for which he is entitled to recover, you must be apprised of the different types of damages available for compensation. Before instructing you, I will explain each of the types of damages which are recoverable. Kevin Miller is entitled to recover for: (a) all past and future embarrassment and humiliation; (b) all past and future loss of enjoyment of life; (c) all past and future pain and suffering; and (d) all past and future emotional distress and mental anguish; In the event that you find in favor of Plaintiff, Kevin Miller, you will add these sums of damage together and return your verdict in a single, lump sum. Pa. SSJI (Civ.) §6.01.; Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980); Slephens v. Economy Bunk ofAmbridge, 413 Pa. 442, 197 A.2d 721 (1964); Lach v. Reach, 361 Pa. 340, 64 A.2d 821 (1949). 19. The plaintiff claims to different types or classes of damages in this case. The elements which the plaintiff has the burden of proving with respect to each type of damages are somewhat different. The first type or class of damages sought by plaintiff is generally referred to as "economic" loss damages and includes income loss, medical expenses, loss of earning capacity, and out-of-pocket expenses. Some of these "economic" damages, such as medical expenses, have been paid for by other sources and will not be claimed by the Plaintiff. The second type or class of damages is generally referred to as "non-economic" loss damages and includes things such as pain (past, present, and future), emotional suffering, disability, loss of enjoyment of life and life's pleasures, embarrassment, and humiliation. As I indicated, what the plaintiff must prove differs somewhat depending on which type of damages claim is being considered - economic or non-economic loss damages. 1 will now instruct you regarding the elements which the plaintiff must prove. Pa SSJI (Civ.) §6.02B. 20. The Plaintiff is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you find he endured from the time of the collision until today. Pa. SSJI (Civ.) §6.01 E. 21. If you find that the Plaintiff, Kevin Miller, has suffered injuries for which he is entitled to recover, you must then find he is also entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you believe he will endure in the future as a result of his injuries. Pa. SSJI (Civ.) §6.01F. 22. The legal concept of pain and suffering includes a wide variety of physical and emotional reactions to injuries for which the Plaintiff is entitled to be compensated. Some of these include, but are not limited to: (1) physical pain; (2) mental distress and anxiety; (3) loss of feeling of well-being; (4) embarrassment and humiliation; (5) loss of the ability to enjoy the normal and ordinary pleasures of life; (6) privation and inconvenience; and (7) inability to perform household tasks. The concept of pain and suffering includes both the physical and mental consequences of an injury. Kevin Miller is entitled to recover for the mental pain and suffering and emotional upset which accompanies his physical injuries. Thompson v. lannuzzi, 403 Pa. 329, 169 A.2d 777 (1961). 23. In evaluating the amount to be awarded for pain and suffering, you should consider that the infliction of pain means taking from a person what is his own to possess and retain--namely, health and well-being. The law allows for compensation of this loss to the extent that any loss may be calculated in money damages. In arriving at any award for pain and suffering which the Plaintiff has undergone, you must also consider the extent to which his injuries have resulted in a loss or lessening of his ability to enjoy life and life's pleasures. DiC'hiacchio v. Rockcrgft Stone Producls C'on:pany, 424 Pa. 77, 85, 225 A.2d 913 (1967); Corcoran v. McNeal, 400 Pa. l4, 26, 161 A.2d 367 (1960); Carminali v. Philadelphia Transport Co., 405 Pa. 500, 176 A.2d 440 (1962). 24. 1 instruct you that under the general heading of pain and suffering, Kevin Miller, is also entitled to recover damage for the fear, anxiety and apprehension relating to the possible future consequences of his injuries, where there is a reasonable possibility that such future consequences may occur. Reimer v. Delisio, 296 Pa. Super. 205, 442 A.2d 731 (1982), of/ 'd, 501 Pa. 662, 462 A.2d 1308 (1983); Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971). 25. The plaintiff, Kevin Miller, is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe he has endured and will continue to endure in the future as a result of his injuries. Pa. SSJI (Civ.) §6.01 G. 26. The plaintiff, Kevin Miller, is entitled to be fairly and adequately compensated for past, present and future loss of his ability to enjoy any of the pleasures of life as a result of his injuries. Pa. SSJI (Civ.) §6.011. 27. Ladies and gentlemen, if you find that Kevin Miller's injuries will continue beyond today, you must determine the life expectancy oi'Kevin Miller. According to statistics compiled by the United States Department of Health, Education and Welfare, the average life expectancy of all persons of Kevin Miller's age at the time of the collision, sex and race was 42.8 years. This figure is offered to you only as a guide, and you are not bound to accept it if you believe that Kevin Miller would have lived longer or less than the average individual in his category. In reaching this decision you are to consider Kevin Miller's health prior to the collision, his manner of living, his personal habits and other factors that may have affected the duration of his life. Pa SSJI (Civ.) §6.21. 28. You will now retire to consider all of the evidence received in this trial in light of the various factors 1 have presented to you and apply the law as 1 have given it to the facts as found by you. Since defendant has admitted negligence, you need only decide whether that negligence was a substantial factor in bringing about the accident. If you conclude that the defendant's negligence was a substantial factor in bringing about the harm to the accident, your verdict must be in favor of the plaintiff and against the defendant. If you find that the defendant's negligent conduct was not a substantial factor in bringing about accident, your verdict must be for the defendant. If your verdict is in favor of the plaintiff, you must then determine what damage the plaintiff was and will be caused to suffer by reason of the defendant's negligence and return a verdict for the plaintiff in that amount. Pa SSJI (Civ.) §3.50. 29. Finally, ladies and gentleman, be mindful of the fact that this is Kevin Miller's only day in court, and whatever damages you find from the evidence, you must under the law, award to him in your verdict today. For it is the law that we cannot call jurors back at any later date and request more compensation. Therefore, the award you find must include within it full and adequate compensation for all Plaintiffs past, present and future pain and suffering he has endured and will endure as a result of the injuries sustained in this collision. .Jamison v. DeNardo, Inc., 302 F.2d 27,30 (3d Cir. 1962). KEVIN L. MILLER and IN THE COURT OF COMMON PLEAS ANNETTE MILLER (wife), CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS ?'• NO. 99-4086 CIVIL TERM CIVIL ACTION - AT LAW HARRY STOPPE, DEFENDANT JURY TRIAL DEMANDED PROPOSED POINTS FOR CHARGE OF THE DEFENDANT, HARRY STOPPF Respectfully submitted, NEALON & GOVER, P.C. Andrew C. Lehman, Esquire Atty. 1. D. #81937 2411 North Front Street Harrisburg, PA 17110 (717) 232-9900 DI. You are not permitted to determine your verdict based on guess work, speculation, conjecture or sympathy lin' it party. Eng(e r.. Sj ino, 425 Pa. 254, 228 A.2d 745 (1967). D2. The Plaintiff claims that she was injured and sustained damage as a result of the negligent conduct oft he Defendant. 'ncc Plaintiff has the burden of proving here] aims. The Defendant admits that he was negligent, but denies that such negligence was a substantial factor in bringing about the Plaintiffs injuries. Based upon the evidence presented at this 'rrial, the only issues for you to decide in accordance with the law as I shall give it to you, are: First: Was the negligent conduct a Substantial Factor in bringing about the Plaintiffs hann? Second: If, and only if the Defendant's negligence was a substantial factor in bringing about harm to the Plaintiff, then you are to decide the amount of compensation, if any, to be awarded to the Plaintiff. Pa. SS.II (Civ.) 3.00 D3. The legal term negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the fsihu•c to do something which a reasonably careful poison would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in the case. The Defendant has admitted his negligence in causing the accident. Pa. SS.II (Civ.) 3.01 D4. Ordinary care is the care it reasonably careful person would use under the circumstance presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by (he taw must lie in keeping with the degree of danger involved. Pa. SS.II (Civ.) 3.02 Do. In order f'or the Plaintiff to recover, the Defendant's negligent conduct must have been a substantial factor in bringing about the [Plaintiff's harm.] This is what the law recognizes as legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or it factor having no connection or only an insignificant connection with the accident. Pa. SS,II (Civ.) 3,25 DG. The number of witnesses 017crcd by one side or the other does not, in itself, determine weight of the evidence. It is a factor, but only one of many factors which you should consider. Whether the witnesses appear too biased or unbiased; whether they are interested or disinterested persons, are among the important factors which go to the reliability of their testimony. The important thing is the quality of' the icstimony of each witness. In short, the test is not which side brings greater number of witnesses or presents the greater number of witnesses or presents the greater quantity of evidence; but which witness or witnesses, and which evidence, you consider most worthy of belief. Even the testimony of one witness may outweigh that of many, if you have reason to believe this testimony in preference to theirs. Obviously, however, where the testimony of witnesses appear to you to be of the same quality, the weight of numbers assumes particular significance. Pa.SSJI (Civ) 5.03 D7. A witness who has special knowledge, skill, experience, training or education in a particular science, profession or occupation nuty give his opinion as an expert as to any matter in which he is skilled. In determining the weight to lie given to his opinion, you should consider the qualifications and reliability of the expert and the reasons given f'or his opinion. You are not bound by an expert's opinion merely because he is an expert; you may accept or reject it, as in the case ol'other witnesses. Give it the weight, if any, to which you deem it entitled. Pa. SSJI (Civ) 5.30 DS. In general. the opinion of an expert has value only when you accept the facts upon which it is based. 'this is true whether the facts arc assumed hypothetically by the expert, come from his personal knowledge, from some other proper source or from some combination of these. Pa. SS.II (C'iv) 5.31 0 ir o W ? m tt Q ¢ 2 II0 0 J Q V 0 Q Z Y N 0 z l? a } LL z z Z = wa 0 0 z ¢ 7 0. 0 0 Q Z W 0 Q 7 N Z "¢ 6 ¢ Q i xM wua.....x ?In. m e.?m.mlu to wxm 'J111'NII ^i?. i?u l?ll..l?ul. ? n.r . v v ?. ? ... 16. Kevin L. Miller IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V Harry Stoppe NO. 99-4086 CIVIL TERM AND NOW, January 30, 2002, upon relation of the Court Administrator that this case cannot be reached this trial tern due to the number of cases on the trial list, IT IS HEREBY ORDERED AND DIRECTED that this case be continued until the March 11, 2002 trial term. The Prothonotary is directed to relist this case for the March 11, 2002 trial term. Counsel are notified that they need not attend the Call of the List and no additional Pretrial Conference will be scheduled unless requested by either party. This case will be given preference and placed at the head of the list. David H. Rosenberg, Esquire V For the Plaintiff ?rew Lehman, Esquire I/For the Defendant Court Administrator By the Court, 4*eo NP-- oi-3)-oz Id KEVIN L. MILLER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 99-4086 CIVIL CIVIL ACTION - LAW HARRY STOPPE, Defendant VERDICT 1. Was the accident a substantial factor in bringing about harm to the plaintiff? Yes- No V If your answer to this question is "Yes," please go on to question 2. If your answer to this question is "No," please return to the courtroom. 2. What damages do you award Kevin L. Miller? Date: 0 -a,&ch f o? ,r,. UOa Foreperson:-? ? .,, [ruap.,,? ca?wa?om ?npan+=1 CASE NO.: / COURTROOM NO.: y6 11a ih L. 1M.ller VS Nam ?f DOCKET NO.: ??1 ' yO?Cn DATE: 3/11 /OL2 Juror# Name Random No. 20 Eft! a.", dames B aron 7r,3 144 Nickerson, Cornelia T -1804230748 60 Deutsch, Nancy J -1791988414 92 Lu, Dan Thi -1751186066 14 Sheriff, Constance G -1706782872 141 McGarvey, Mary A -1261282759 148 Mosemann, Mary Louise -890424848 147 Kissel, Daniel -606124533 146 Pressel,JoAnn C -382886286 142 Sisak, John E -146206102 `Ty 69 200q 290 AI 77-?? 140 Morgan, Sandra L 209821208 1138 !f 3 137 Llndeberq,Andrew W 360473181 13 Krasevic(Martin), Anne M 398277731 23 Sunday, Gloria J 569418710 i5i Ms. a _A 2-- 135 Looker, Stephen A 1017471308 68 Warren, Beverly R 1110212763 139 Norman, Jasper E 1574101971 83 BishoR, Betty J 1661428801 54 Gardner, Bryan P 1831863269 28 Whitcomb, CarolL 1912541343 145 Rowland, Albert L 2065328085 36 Gierhart, Daniel T 2139407860