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HomeMy WebLinkAbout03-3361AMMON H. BOLLINGER and VIOLET L. BOLLINGER, Plaintiffs VS. BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, 1NC. and CUMBERLAND VALLEY LAND CLEARING, 1NC., Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. - JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Clearing, Inc. 6820 Wertzville Road Enola, PA 17025 Atto: Walt Diller, Vice-President -and- Cumberland Valley Land Clearing, Inc. 6820 Wertzville Road Enola, PA 17025 Attn: Walt Diller, Vice-President YOU HAVE BEEN SUED 1N COURT. If you wish to defend against the claims set forth in the following pages, you must take action within Twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 AMMON H. BOLLINGER and VIOLET L. BOLLINGER, Plaintiffs VS. BOYD E. DILLER, INC., individually and t/clPo/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., Individually, Defendants adult individuals residing at Pennsylvania 17025. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLrNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED CIVIL COMPLAINT Plaintiffs Ammon H. Bollinger and Violet L. Bollinger, husband and wife, are 11 West Highland Avenue, Enola, Cumberland County, 2. Defendant Boyd E. Diller, Inc., is a Pennsylvania corporation, which trades and does business as Cumberland Valley Land Clearing, Inc., with a principal place of business located at 6820 Wertzville Road, Enola, Cumberland County, Pennsylvania 17025. 3. Defendant Cumberland Valley Land Cleating, Inc., is a Pennsylvania corporation with a principal place of business located at 6820 Wertzville Road, Enola, Cumberland County, Pennsylvania 17025. 4. On April 2, 2002, Plaintiff Ammon H. Bollinger was visiting Dolores England's residence located at 3641 North Front Street, Harrisburg, Dauphin County, Pennsylvania 17110. 5. Plaintiff Ammon Bollinger was visiting his friend's house as he often helped her do various chores and yard work. 282105-1 6. On the aforesaid date, Defendants' employee, agent, servant and/or workman (hereinafter "driver") was delivering a load of tan bark to the residence located at 3641 North Front Street, Harrisburg, Dauphin County, Pennsylvania 17110. Plaintiff Ammon Bollinger was at the residence to help unload and spread the tan bark around. 8. On the aforesaid date, Defendant driver delivered the tan bark to Ms. England's residence using a track with a roll-off container (hereinafter referred to as "track"). 9. The aforementioned track was driven onto the premises to unload the tan bark. 10. A tarp was placed on the ground where the tan bark was going to be unloaded. 11. Plaintiff Ammon H. Bollinger offered to watch the tarp because of the strong winds that day. 12. The driver opened the back of the truck and appeared to hook the gate back. 13. As the driver began to raise the bed of the track, there was no warning or signal on the truck to notify Plaimiff Ammon H. Bollinger of any possible danger. 14. In addition, the driver did not warn Plaintiff Ammon H. Bollinger prior to raising the bed of the track or instruct him to stand back. 15. As the bed of the truck was raised, the gate swung shut and crashed into the left rib area of Plaintiff Ammon H. Bollinger. 16. Plaintiff Ammon H. Bollinger was immediately thrown to the ground and driven into the ground on his right shoulder resulting in serious injuries. 282105-1 -2- forth. 17. COUNT I - NEGLIGENCE Plaintiff Ammon H. Bollinger v. Defendant Boyd E. Diller, Inc. Paragraphs 1 through 16 hereof are incorporated herein by reference as if fully set 18. Defendant Boyd E. Diller, Inc. and its employees, agents, workmen and/or servants had a duty to ensure that the product it was supplying was delivered safely and its drivers did not cause injury to the public and to Plaintiff Ammon H. Bollinger in particular. 19. In addition, Defendant Boyd E. Diller, Inc. and its employees, agents, workmen and/or servants also had a duty to warn the public and the Plaintiff Ammon H. Bollinger in particular, of the danger posed by the truck and that this gate unhooked in the past and it might swing shut into him. 20. Defendant Boyd E. Diller, Inc. and its employees, agents, workmen and/or servants breached its/their legal duty to Plaintiff Ammon H. Bollinger and was/were negligent in the following particulars: (a) Failing to warn Plaintiff of the dangers and hazardous conditions of the truck; (b) Failing to ensure that the tan bark was delivered safely without causing injury to Plaintiff; (c) Failing to give warning that the truck's tailgate swung shut; (d) Failing to eliminate, correct and modify the defect with the gate hook and clasp so it was not a hazardous condition to Plaintiff; (e) Failing to take the necessary and protective and precautionary measures to ensure that the tan bark was delivered safely to the public including Plaintiff, and not subject to a hazard; (f') Failing to inspect the truck prior to the delivery of the tan bark to ensure that no hazardous condition existed for the public, including Plaintiff; -3- 282105-1 (g) (h) (i) O) (k) (1) (m) (n) (o) (P) (q) (r) (s) (t) (u) Failing to keep Plaintiff away from the truck when unloading the tan bark; Failing to give Plaintiff proper instructions of where to stand and what to expect when unloading the tan bark; Failing to warn Plaintiff of the problems with securing the tailgate; Having an inexperienced driver deliver this particular load; Failing to properly maintain its trucks and failing to eliminate or protect against the problems with the hook and clasp of the tailgate;. Allowing a non-employee to assist in unloading the product; Not properly securing the tailgate; Failing to supervise employees, servants, workmen, agents and/or independent contractors in the use and maintenance of the truck and tailgate; Hiring and/or retaining an employee and/or employees, servants, workmen, agents and/or independent contractors who were unfit or incompetent to supervise, use and/or maintain the truck and tailgate; Failing to properly supervise employees, servants, workmen, agents, and/or independent contractors to ensure that there were no hazardous conditions existing on the truck; Failing to exercise reasonable care to ensure that the product it was supplying was delivered safely and that its drivers did not cause injury to the public including Plaintiff; Allowing a defective tailgate to exist on the truck; Failing to fulfill maintenance responsibilities and repair the tailgate; Failing to perform proper inspections of the delivery truck; Failing to take action to have the truck tailgate repaired after experiencing a similar problem before; and -4- (v) Allowing to exist on the vehicle a tailgate which did not properly work and caused a dangerous and hazardous condition to the public. 21. The driver who delivered the load was acting within the scope of his employment with Defendant and in furtherance of Defendant's business. 22. The Defendant is vicariously liable for the actions and/or omissions of the driver as though it performed them itselfi 23. As a direct and proximate result of the negligence of Defendant Boyd E. Diller, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger suffered serious and permanent injuries, some of which may be an aggravation of pre- existing conditions, including but not to limited to: (a) Injuries to face from the stones on the driveway; (b) Displaced fractures of the lateral aspect of left 8th and 9th ribs; (c) Trauma and injury to the right upper arm; (d) Trauma and injury to the right shoulder which included a complete tear of the supraspinatus tendon with retraction as well as a near subtotal tear of the infraspinatus tendon; (e) Right shoulder impingement syndrome with large rotator cuff tear resulting in open Neer acromioplasty and rotator cuff repair; and (f) Unrepairable injury to the infraspinatus and teres minor muscles of the right shoulder. 24. As a direct and proximate result of the negligence of Defendant Boyd E. Diller, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger was forced to incur medical bills and expenses for the injuries he has suffered and will continue to incur said medical bills and expenses in the future. 282105-1 -5- 25. As a direct and proximate result of the negligence of Defendant Boyd E. Diller, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger suffered loss of ability to perform household services, loss of productivity and the shortening of his economic horizons. 26. As a direct and proximate result of the negligence of Defendant Boyd E. Diller, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger has undergone and in the future will undergo great mental and physical pain and suffering, mental anguish, discomfort, inconvenience and distress, embarrassment and humiliation, past, present and future loss of his ability to enjoy the pleasures of life and limitation in his pursuit of daily activities all to his great loss and detriment. 27. As a direct and proximate result of the negligence of Defendant Boyd E. Diller, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger has been scarred and disfigured. 28. As a direct and proximate result of the negligence of Defendant Boyd E. Diller, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger has also suffered incidental costs and expenses, including, but not limited to, costs associated with medical appliances. WHEREFORE, Plaintiff Ammon H. Bollinger, demands judgment against Defendant Boyd E. Diller, Inc., either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania, plus interest and/or damages for delay and costs of prosecution. 282105-1 -6- COUNT II - NEGLIGENCE Plaintiff Ammon H. Bollin~er v. Defendant Cumberland Valley Land Clearing, Inc. forth. 29. Paragraphs 1 through 28 hereof are incorporated herein by reference as if fully set 30. Defendant Cumberland Valley Land Clearing, Inc. and its employees, agents, workmen and/or servants had a duty to ensure that the product it was supplying was delivered safely and its drivers did not cause injury to the public and to Plaintiff Ammon H. Bollinger in particular. 31. In addition, Defendant Cumberland Valley Land Clearing, Inc. and its employees, agents, workmen and/or servants also had a duty to warn the public and the Plaintiff Ammon H. Bollinger in particular, of the danger posed by the truck and that this gate unhooked in the past and it might swing shut into him. 32. Defendant Cumberland Valley Land Clearing, Inc. and its employees, agents, workmen and/or servants breached its/their legal duty to Plaintiff Ammon H. Bollinger and was/were negligent in the following particulars: (a) Failing to warn Plaintiff of the dangers and hazardous conditions of the truck; (b) Failing to ensure that the tan bark was delivered safely without causing injury to Plaintiff; (c) Failing to give warning that the truck's tailgate swung shut; (d) Failing to eliminate, correct and modify the defect with the gate hook and clasp so it was not a hazardous condition to Plaintiff; (e) Failing to take the necessary and protective and precautionary measures to ensure that the tan bark was delivered safely to the public including Plaintiff, and not subject to a hazard; 282105-1 -7- 282105-1 (g) (h) (i) (j) (k) (l) (m) (n) (o) (P) (q) (r) (s) (t) Failing to inspect the truck prior to the delivery of the tan bark to ensure that no hazardous condition existed for the public, including Plaintiff; Failing to keep Plaintiff away from the truck when unloading the tan bark; Failing to give Plaintiff proper instructions of where to stand and what to expect when unloading the tan bark; Failing to warn Plaintiff of the problems with securing the tail gate; Having an inexperienced driver deliver this particular load; Failing to properly maintain its trucks and failing to eliminate or protect against the problems with the hook and clasp of the tailgate;. Allowing a non-employee to assist in m~loading the product; Not properly securing the tailgate; Failing to supervise employees, servants, workmen, agents and/or independent contractors in the use and maintenance of the truck and tailgate; Hiring and/or retaining an employee and/or employees, servants, workmen, agents and/or independent contractors who were unfit or incompetent to supervise, use and/or maintain the track and tailgate; Failing to properly supervise employees, servants, workmen, agents, and/or independent contractors to ensure that there were no hazardous conditions existing on the truck; Failing to exercise reasonable care to ensure that the product it was supplying was delivered safely and that its drivers did not cause injury to the public including Plaintiff; Allowing a defective tailgate to exist on the a truck; Failing to fulfill maintenance responsibilities and repair the tailgate; Failing to perform proper inspections of the delivery track; -8- (u) Failing to take action to have the truck tailgate repaired after experiencing a similar problem before; and (v) Allowing to exist on the vehicle a tailgate which did not properly work and caused a dangerous and hazardous condition to the public. 33. The driver who delivered the load was acting within the scope of his employment with Defendant and in furtherance of Defendant's business. 34. The Defendant is vicariously liable for the actions and/or omissions of the driver as though it performed them itself. 35. As a direct and proximate result of the negligence of Defendant Cumberland Valley Land Clearing, Inc., and acting through its employees, agents, workmen and/or servants, PlaintiffAmmon H. Bollinger suffered serious and permanent injuries, some of which may be an aggravation of pre-existing conditions, including but not to limited to: (c) Injuries to face from the stones on the driveway; (d) Displaced fractures of the lateral aspect of left 8u' and 9t~ ribs; (c) Trauma and injury to the right upper arm; (d) Trauma and injury to the right shoulder which included a complete tear of the supraspinatus tendon with retraction as well as a near subtotal tear of the infraspinatus tendon; (e) Right shoulder impingement syndrome with large rotator cuff tear resulting in open Neer acromioplasty and rotator cuff repair; and (f) Unrepairable injt~ry to the infraspinatus and teres minor muscles of the right shoulder. 36. As a direct and proximate result of the negligence of Defendant Cumberland Valley Land Clearing, Inc., and acting through its employees, agents, workmen and/or servants, 282105-1 -9- PlaintiffAmmon H. Bollinger was forced to incur medical bills and expenses for the injuries he has suffered and will continue to incur said medical bills and expenses in the future. 37. As a direct and proximate result of the negligence of Defendant Cumberland Valley Land Clearing, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger suffered loss of ability to perform household services, loss of productivity and the shortening of his economic horizons. 38. As a direct mad proximate result of the negligence of Defendant Cumberland Valley Land Clearing, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger has undergone and in the future will undergo great mental and physical pain and suffering, mental anguish, discomfort, inconvenience and distress, embarrassment and humiliation, past, present and future loss of his ability to enjoy the pleasures of life and limitation in his pursuit of daily activities all to his great loss and detriment. 39. As a direct and proximate result of the negligence of Defendant Cumberland Valley Land Clearing, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger has been scarred and disfigured. 40. As a direct and proximate result of the negligence of Defendant Cumberland Valley Land Clearing, Inc., and acting through its employees, agents, workmen and/or servants, Plaintiff Ammon H. Bollinger has also suffered incidental costs and expenses, including, but not limited to, costs associated with medical appliances. WHEREFORE, Plaintiff Ammon H. Bollinger, demands judgment against Defendant Cumberland Valley Land Clearing, Inc., either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in 282105-I -10- Ctunberland County, Pennsylvania, plus interest and/or damages for delay and costs of prosecution. 41. forth. 42. COUNT III - LOSS OF CONSORTIUM Plaintiff Violet L. Bollin£er v. Defendants Paragraphs 1 through 40 hereof are incorporated herein by reference as if fully set During all relevant times, Plaintiffs Ammon H. Bollinger and Violet L. Bollinger, were husband and wife, and solely as a result of the aforesaid negligence, carelessness and recklessness of Defendants, either individually and/or jointly and severally, and as a result of the injuries to Plaintiff Ammon H. Bollinger, Plaintiff Violet L. Bollinger has been deprived of the assistance, companionship, consortium and the society of her husband and has lost his services to her, all to her great loss detriment which may continue indefinitely. WHEREFORE, Plaintiff Violet L. Bollinger, demands judgment against Defendants, either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Ctunberland County, Pennsylvania, plus interest and/or damages for delay and costs of prosecution. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By: Clark DeVere, Esquire Attorney I.D. No. 68768 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiffs Dated: July 11, 2003 -11- VERIFICATION I, Ammon H. Bollinger, hereby certify that the following is correct: The facts set forth in the foregoing Civil Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel and not my own. I have read the Civil Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Dated: July 10, 2003 Ammon H. Bollinger 282105-1 VERIFICATION I, Violet L. Bollinger, hereby certify that the following is correct: The facts set forth in the foregoing Civil Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel and not my own. I have read the Civil Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Dated: July 10, 2003 Violet L. Bollinger f 282105-1 SHERIFF'S RETURN - CASE NO: 2003-03361 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOLLINGER ANMON H ET AL VS BOYD E DILLER INC ET AL REGULAR JASON VIOP~AL , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE BOYD E DILLER INC DEFENDANT , at 1520:00 HOURS, on the at 6820 WERTZVILLE ROAD ENOLA, PA 17025 WALT DILLER, OWNER, a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 17th day of July , 2003 by handing to ADULT IN CHARGE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.21 Affidavit .00 Surcharge 10.00 .00 34.21 Sworn and Subscribed to before me this ~ ~ day of  ~ A.D. rothonotary ~ ~ ' So Answers: R. Thomas Kline 07/18/2003 METZGER WICKERSFIAM By: ~u~ SHERIFF'S RETURN - REGULAR CASE NO: 2003-03361 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOLLINGER AMMON H ET AL VS BOYD E DILLER INC ET AL JASON VIORAL , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon BOYD E DILLER INC T/D/B/A CUMBERLAND VALLEY LAND CLEARIN DEFENDANT , at 1520:00 HOURS, at 6820 WERTZVILLE ROAD ENOLA, PA 17025 WALT DILLER, OWNER, Sheriff or Deputy Sheriff of who being duly sworn according to law, on the 17th day of July by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE the , 2003 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this L ~ day of / othonotary So Answers: R. Thomas Kline 07/18/2003 METZGER WICKERSH_AM By: 4puty sheri//~ff SHERIFF'S RETURN CASE NO: 2003-03361 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOLLINGER AMMON H ET AL VS BOYD E DILLER INC ET AL - REGULAR JASON VIORAL , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon CUMBERLAND VALLEY LAND CLEARING INC DEFENDANT , at 1520:00 HOURS, at 6820 WERTZVILLE ROAD ENOLA, PA 17025 WALT DILLER, OWNER, a true and attested copy of Sheriff or Deputy Sheriff of who being duly sworn according to law, on the 17th day of July by handing to ADULT IN CHARGE the , 2003 COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6 Service Affidavit Surcharge 10 16 00 00 00 00 00 00 Sworn and Subscribed to before me this ~ day of  ~mm3 A.D. Prothonotary So Answers: R. Thomas Kline 07/18/2003 METZGER WICKERSH~24 By: //~  eputy Sheriff WILLIAM E. DENGLER, ESQUIRE Attorney I.D. No: 72696 LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (610) 687-8303 ~ ~AMON H. BOLLINGER and VIOLET L. BOLLINGER V. BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually ATTORNEY FOR DEFENDANTS BOYD E. DILLER, 1NC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually ',UMBERLAND COUNTY OURT OF COMMON PLEAS ~O. 03-3361 'RIAL BY JURY OF 12 DEMANDED ENTRY OF APPEARANCE, TO THE PROTHONOTARY.: Kindly enter my appearance in the above captioned matter on behalf of Defendants, Boyd E. DiRer, Inc., individually and t/d/b/a Cumberland Valley Land Clearing, Inc. and Cumberland Valley Land Clearing, Inc., individually. LAW OFFICES OF MICHAEL W. CASEY WILLIAM E. DENGLER, ESQUIRE Attorney for Defendants, Boyd E. Dlller, Inc., individually and t/d/b/a Cumberland Valley Land Clearing, Inc. and Cumberland Valley Land Clearing, Inc., individually c~ WILLIAM E. DENGLER, ESQUIRE Attorney I.D. No: 72696 LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 ~ 687-8303 AMMON H. BOLLINGER and VIOLET L. BOLLINGER V. BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individuall_ll_y_ ATTORNEY' FOR DEFENDANTS BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, :[NC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-3361 TRIAL BY JURY OF 12 DEMANDED DEMAND FOR JURY TRIAL Twelve (12) members, exclusive of alternates, are hereby demanded by Defendants, Boyd E. Diller, /nc., individually and t/d/b/a Cumberland Valley Land Clearing, Inc. and Cumberland Valley Land C/earing, Inc., individually, in the abeve captioned matter. LAW OFFICES OF MICHAEL W. CASEY WILLIAM E. DENGLER, ESQUIRE Attorney for Defendants, Boyd E. Dlller, Inc., individually and t/d/b/a Cumberland Valley Land C/earing, Inc. and Cumberland Valley Land Clearing, Inc., individually To The Plaintiffs: You are hereby notified to answer the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. WILLIAM E. DENGLER, ESQUIRE Attorney I.D. No: 72696 LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (610) 687-8303 AMMON H. BOLLINGER and VIOLET L. BOLLINGER V. BOYD E. DILLER, 1NC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually ATTORNEY FOR DEFENDANTS BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-3361 TRIAL BY JURY OF 12 DEMANDED ANSWER OF DEFENDANTS, BOYD E. DILLER, INC., INDIVIDUAI.I.Y AND t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. AND CUMBERLAND VALLEY LAND CLEARING, INC., INDIVIDUALLY TO PLAINTIFFS' COMPLAINT WITH NEW MATTER 1. Denied. After reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 2. Denied. Defendant, Boyd E. Diller, Inc., is a Pennsylvania corporation with a principal place of business located at 6820 Wertzville Road, Enola, Cumberland County, Pennsylvania. Defendant specifically denies that it trades or does business as Cumberland Valley Land Clearing, Inc. 3. Admitted. 4. Denied. After reasonable investigation, answering; defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 5. Denied. After reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 6. Denied. All averments of agency are denied. The plaintiffs have not indicated the identity of any person alleged to have been an agent, workman, servant, or employee of the answering defendants and therefore, the averments must be denied. At no time did any agent, workman, servant or employee of the answering defendants cause any injury or damage to the plaintiffs. Further, answering defendant, Boyd E. Diller, Inc., is not in the business of delivering tan bark. 7. Denied. After reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 8. Denied. All averments of agency are denied. The plaintiffs have not indicated the identity of any person alleged to have been an agent, workman, servant, or employee of the answering defendants and therefore, the averments must be denied. At no time did any agent, workman, servant or employee of the answering defendants cause any injury or damage to the plaintiffs. 9. Denied. ARer reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 10. Denied. After reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 11. the strong winds that day. Rather, it is believed and therefore averred that at the time the tan bark was to be unloaded, the plaintiff suddenly and without warning stepped behind the truck and roll off container. 12. Denied. After reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 13. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 14. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without Denied. It is specifically denied that plaintiffoffered to watch the tarp because of knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 15. Denied. After reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at trial. 16. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. COUNT I - NEGLIGENCE PlaintiffAmmon H. Bollinger v. Defendant Boyd E. Diller, Inc. 17. Answering defendants incorporate by reference the answer to paragraphs one (1) through sixteen (16) inclusive, as fully as though the same were here set forth at length. 18. Denied. Defendant, Boyd E. Diller, Inc., specifically denies that it had any involvement in the supply and/or delivery of the product as alleged by plaintiffs. All averments of agency are denied. The plaintiffs have not indicated the identity of any person alleged to have been an agent, workman, servant, or employee of the answering defendants and therefore, the averments must be denied. At no time did any agent, workman, servant or employee of the answering defendants cause any injury or damage to the plaintiffs. The remaining allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore deemed denied. 19. Denied. Defendant, Boyd E. Diller, Inc., specifically denies that it had any involvement in the supply and/or delivery of the product as alleged by plaintiffs. All averments of agency are denied. The plaintiffs have not indicated the identity of any person alleged to have been an agent, workman, servant, or employee of the answering defendants and therefore, the averments must be denied. At no time did any agent, workman, servant or employee of the answering defendants cause any injury or damage to the plaintiffs. The remaining allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore deemed denied. 20. (a-v) Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. 21. Defendant, Boyd E. Diller, Inc., specifically denies that any of its agents, employees or servants were in any way involved in the aforementioned incident. Defendant specifically denies that the driver was employed by Boyd E. Diller, Inc. and/or in furtherance of defendant's business. 22. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. 23. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 24. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the m~th of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 25. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 26. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 27. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 28. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. COUNT II - NEGLIGENCE Plaintiff Ammon H. Boilinger v. Defendant Cumberland Valley Land Clearing~ Inc. 29. Answering defendants incorporate by reference the answer to paragraphs one (1) through twenty-eight (28) inclusive, as fully as though the same were here set forth at length. 30. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 31. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendant deny the allegations. 32. (a-v) Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. 33. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. 34. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. 35. (c-f) Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 36. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 37. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 38. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 39. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. 40. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. COUNT III - LOSS OF CONSORTIUM Plaintiff Violet L. Bollinger v. Defendants 41. Answering defendants incorporate by reference the answer to paragraphs one (1) through forty (40) inclusive, as fully as though the same were here set forth at length. 42. Denied. The allegations contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleadings and are therefore denied. Moreover, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and therefore, answering defendants deny the allegations. NEW MATTER 43. If an accident occurred in the manner alleged by the plaintiffs, then such accident occurred as a result of the negligence of the plaintiffs, and under the terms of the Comparative Negligence Act of 1976, 42 Pa. C.S.A. 7102 et seq., the plaintiffs are not entitled to recover from answering defendants or the recovery is to be reduced in accordance with the terms of the 49. granted. 50. aforesaid Act. 44. If it is judicially determined that the plaintiffs suffered any injuries and/or damages as a result of the accident as alleged in plaintiffs' Complaint then such damages were proximately caused by the negligence of plaintiffs themselves. 45. If the plaintiffs suffered any injuries/damages as alleged, they were caused solely and primarily by plaintiffs' own carelessness, recklessness, negligence, or contributory negligence. 46. By the actions at the date, time and place stated in the plaintiffs' Civil Action- Complaint, the plaintiffs did assume the risk of any and all injtmes or damages which they are alleged to have suffered. 47. It is averred that the appropriate Statute of Limitations has elapsed since the accrual of the causes of action and the institution of suit. The instant action is thus barred by the applicable Statute of Limitations. 48. Answering defendants assert all of the defenses available to them under the Workers' Compensation Laws and avers that the plaintiffs' remedies are limited exclusively thereto and the present action is barred. The plaintiffs' Complaint fails to state a cause of action upon which relief can be At all times concerned with this litigation, answering defendants acted in a manner which was proper, reasonable, lawful and in the exercise of good faith. 51. Plaintiffs' Complaint in Civil Action avers that plaintiffs sustained personal injuries in a motor vehicle accident which occurred in Pennsylvania on April 2, 2002. Pursuant to the Motor Vehicle Financial Responsibility Law of February 12, 1984, as amended, 75 PA C.S.A. 1701, et seq., plaintiffs are precluded from pleading, introducing into evidence or recovering the amounts of the coverages set forth in 75 PA C.S.A. 1711. Answering defendants claim all immtmities and defenses provided by the Motor Vehicle Financial Responsibility Law of February 12, 1984. 52. Plaintiffs' Complaint in Civil Action avers that Plaintiff sustained personal injuries on April 2, 2002. Answering defendants claim all of the immunities and defenses provided by the Motor Vehicle Financial Responsibility Law of February 12, 1984. Pursuant to the Motor Vehicle Financial Responsibility Law of February 12, 1984, as amended, 75 Pa. C.S.A. 1701, et seq., plaintiffs are precluded from pleading or introducing into evidence or recovering the amounts of the coverages set forth. Plaintiffs' action is barred or limited by the limited tort option of the Motor Vehicle Financial Responsibility Law of February 12, 1984, as amended, 75 Pa. C.S.A. 1701, et seq., as plaintiffs have not sustained a serious injury. If applicable, plaintiffs are precluded from recovering any first party benefits, workers compensation benefits or health care benefits under a program, group contract or other arrangement, paid or otherwise payable, in the context of this third party liability claim pursuant to 75 Pa. C.S.A. e1719. 53. Plaintiffs have failed to mitigate their damages. 54. If the allegations of plaintiffs' injuries are deemed true, a fact specifically denied by answering defendants, then it is averred that said injuries are due to negligence, recklessness or carelessness on the part of persons or entities over whom answering defendants have no control or responsibility and for whom answering defendants cannot be assumed to have accepted liability. 55. Plaintiffs' cause of action may be barred or limited in accordance with 75 Pa. C.S.A. 1705 by the "tort option" contained in the policy of insurance providing them with coverage for the accident in question. 56. Plaintiffs' claims for damages are ban'ed because they are not causally related to the accident complained of. 57. Plaintiffs' claims are barred because of the doctrine of superseding and/or intervening cause. 58. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. 59. It is believed that plaintiffs may have received workers' compensation benefits pursuant to administrative proceedings and, therefore, plaintiffs' claims may be barred and/or limited by the doctrine of collateral estoppel. 60. Plaintiffs' claims for joint and several liability are barred or limited by the laws and rules of the Commonwealth of Pennsylvania. LAW OFFICES OF MICHAEL W. CASEY WILLIAM E. DENGLER, ESQUIRE Attorney for Defendants, Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Cleating, Inc. and Cumberland Valley Land Cleating, Inc., individually VERIFICATION William E. Dengler, Esquire, hereby states that he is the attorney of record for defendants, Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Clearing, Inc. and Cumberland Valley Land Clearing, inc., individually, in this action and verifies that statements made in the foregoing Answer to plaintiffs' Complaint with New Matter are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. LAW OFFICES OF MICHAEL W. CASEY WILLIAM E. DENGLER, ESQUIRE Attorney for Defendants, Boyd E. Diller, Inc., individually and t/dPo/a Cumberland Valley Land Clearing, Inc. and Cumberland Valley Land Cleating, Inc., individually WILLIAM E. DENGLER, ESQUIRE Attorney I.D. No: 72696 LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King &Prussia, PA 19406 (610) 687-8303 AMMON H. BOLLINGER and VIOLET L. BOLLINGER BOYD E. DILLER, INC., individually and t/d/b/a CU2VIBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually ATTORNEY FOR DEFENDANTS BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, 1NC., individually CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-3361 TRIAL BY TURY OF 12 DEMANDED CERTIFICATION OF SERVICE I, William E. Dengler, Esquire, hereby certify that a tree and correct copy of the Answr with plaintiffs' Complaint with New Matter were served by first class U.S. mail, postage prepaid on August 28, 2003, upon the following counsel of record: Clark DeVere, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110 Date:~_~ LAW OFFICES OF MICHAEL W. CASEY Attorney for Defendants, Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Cleating, Inc. and Cumberland Valley Land Cleating, Inc., individually AMMON H. BOLLINGER and VIOLET L. BOLLINGER, Plaintiffs VS. BOYD E. DILLER, 1NC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERI_,AND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-3361 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER 43. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, Plaintiffs were not negligent in any manner nor is their recovery barred or reduced in accordance with the Comparative Negligence Act. 44. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, Plaintiffs were not negligent in any manner. Moreover, Plaintiffs' injuries and damages as set forth in the Complaint filed in this action were caused by the negligence of Defendants, either individually and/or jointly and severally. 45. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, Plaintiffs were not careless, reckless, negligent or contributorly negligent in any manner. Moreover, Plaintiffs' injuries and damages as ~set forth in the Complaint filed in this action were caused by Defendants, either individually and/or jointly and severally. 287877-1 46. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, Plaintiffs did not assume any risk of any of their' injuries or damages which have been suffered. 47. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' claims and actions were timely commenced and served upon Defendants. 48. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Defendants have failed to specify what workers' compensation laws they are referring to and therefore Plaintiffs cannot properly respond. Moreover, the Workers' Compensation Act does not apply in any manner to the claims set forth in this action and are totally irrelevant. Furthermore, Plaintiffs' claims are not limited or barred lin any respect by any workers' compensation laws. 49. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, the Plaintiffs' Complaint states causes of action against Defendants upon which relief can be granted and Plaintiffs' Complaint is incorporated herein by reference as if fully set forth. Moreover, answering Defendants have failed to file any Preliminary Objections to the Complaint. 50. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Defendants are negligent and liable to Plaintiffs as set forth in the Complaint filed in this action which is incorporated herein by reference. 287877-1 -2- 51. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' Complaint speaks for itself and is incorporated herein by reference. Furthermore, answering Defendants have failed to specifically identify the sections of the Pennsylvania Motor Vehicle Financial Responsibility Law they are referring to and therefore Plaintiffs cannot properly respond. To the extent that the particular sections are .,;et forth, Plaintiffs' claims are not barred or limited in any manner. 52. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' Complaint speaks for itself and is incorporated herein by reference. Furthermore, answering Defendants have failed to specifically identify the se. ctions of the Pennsylvania Motor Vehicle Financial Responsibility Law they are referring to and therefore Plaintiffs cannot properly respond. Moreover, Plaintiffs' claims are not precluded, barred or limited in any manner pursuant to Pennsylvania Motor Vehicle Financial Responsibility Law. To the contrary, Plaintiffs had selected the full tort option which was in effect at the time of the accident. Nonetheless, Plaintiffs also sustained a serious injury as defined by the Pennsylvania Motor Vehicle Financial Responsibility Law and applicable law. Additionally, Plaintiff Ammon Bollinger was a pedestrian injured by a commercial vehicle and therefore any limited tort threshold would not apply anyway. 53. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiff Ammon Bollinger has sought the necessary medical treatment and mitigated his injuries and damages to the extent possible. Plaintiffs have taken the steps to mitigate their damages. 287877-1 -3- 54. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' injuries and/or damages were caused by the actions and/or omissions of the answering Defendants, either individually and/or jointly and severally, as ,claimed in the Complaint filed in this action which is incorporated herein by reference. Furthe~nore, the answering Defendants have failed to specify what other persons or entities they are referring to and therefore Plaintiffs cannot properly respond. 55. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs had selected the full tort option which was in effect at the time of the accident. Moreover, Plaintiff Ammon Bollinger sustained a "serious injury." Additionally, Plaintiff Ammon Bollinger was a pedestrian injured by a commercial Yehicle and therefore any limited tort threshold would not apply anyway. Plaintiffs' cause of action is not barred or limited in any manner by 75 Pa.C.S.A. §1705. 56. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' injuries and/or damages as set forth in the Complaint filed in this action which is incorporated herein by reference are directly and proximately related to the accident on April 2, 2002 as set forth in the Complaint filed in this action. 57. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, the said doctrines of superseding and/or intervening cause are not applicable to the claims brought in this action and are totally irrelevant. Moreover, answering Defendants have failed to specify 287877-I -4- what superseding and/or intervening cause they are referring to and therefore Plaintiffs cannot properly respond. 58. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, the said doctrine of accord and satisfaction does not apply in any manner to the claims brought in this action and the doctrine is totally irrelevant to this action. Plaintiffs' claims are not barred by any accord and satisfaction and none was ever given. 59. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs did not receive any workers' compensation benefits nor was there any administrative proceeding therefor. Plaintiffs' claims are not barred or limited by the doctrine of collateral estoppel and said doctrine is not applicable in any manner to the claims brought in this action and totally irrelevant. 60. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, answering Defendants have failed to specify what laws and rules allegedly bar or limit Plaintiffs' claims for joint and several liability and therefore Plaintiffs carmot properly respond. Moreover, there is no bar to Plaintiffs' claims for joint and several liability and no limits on such claims raised in this action under the laws or roles of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiffs Ammon and Violet Bollinger demand that Defendants Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Cleating, Inc. and Cumberland Valley Cleating, Inc.'s New Matter be dismissed and that judgment be entered in Plaintiffs' 287877-1 -5- favor and against said Defendants, either individually and/or jointly and severally, as claimed in the Complaint filed in this action. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Dated: By: Clark Ibe~quire Attorney I.D. No. 68768 P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiffs 287877-1 -6- VERIHCATION I, Ammon H. Bollinger, hereby certify that the following is correct: The facts set forth in the foregoing Reply to Defendants' New Matter are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Reply to Defendants' New Matter is that of counsel and not my own. I have read the Reply to Defendants' New Matter, and to the extent that it is based upon information which I have given to counsel, it is tree and correct to the best of my knowledge, information, and belief. To the extent that the content of the Reply to Defendants' New Matter is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Plaintiffs' Reply to Defendants' New Matter are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Dated: 9/10/03 Ammon H. Bollinger 'a 287877-1 VERIFICATION I, Violet L. Bollinger, hereby certify that the following is correct: The facts set forth in the foregoing Reply to Defendants' New Matter are based upon information which I have furnished to counsel, as well as upon irrformation which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Reply to Defendants' New Matter is that of counsel and not my own. I have read the Reply to Defendants' New Matter, and to the extent that it is based upon information which I have given to counsel, it is tree and correct to the best of my knowledge, information, and belief. To the extent that the content of the Reply to Defendants' New Matter is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Plaintiffs' Reply to Defendants' New Matter are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Dated: 9/10/03 Violet L. Bollinger ~/' 287877-l CERTIFICATE OF SERVICE AND NOW, this lOv"- day of September, 2003, I, Clark DeVere, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Plaintiffs, hereby certify that I served a copy of the within Plaintiffs' Reply to Defendants' New Matter this day by depositing the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Clearing, Inc. and Cumberland Valley Land Clearing, Inc., Individually c/o William E. Dengler, Esquire Law Offices of Michael W. Casey Walnut Hill Plaza 150 South Warner Road, Suite 270 King of Prussia, PA 19406 Clark D--D-~V~F6, Esquire 287877-1 WILLIAM E. DENGLER, ESQUIRE Attorney I.D. No: 72696 LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (610) 687-8303 AMMON H. BOLLINGER and VIOLET L. BOLLINGER V. BOYD E. DILLER, INC., individually and t/d/b/a CUMBERLAND VALLEY LAND CLEARING, 1NC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually ATTORNEY FOR DEFENDANTS BOYD E. DILLER, INC., individually and t/dgo/a CUMBERLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-3361 TRIAL BY JURY OF 12 DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification of defendants, Boyd E. Diller, Inc. and Cumberland Valley Landing Cleating, Inc., for the Verification of William E. Dengler, Esquire filed with defendants' Answer with New Matter to plaintiffs' Co:mplaint. LAW OFFICES OF MICHAEL W. CASEY WILLIAM E. DENGLER, ESQUIRE Attorney for Defendants, Boyd E. Diller, Inc., individually and t/d/b/a Cumberland Valley Land Cleating, Inc. and Cumberland Valley Land Cleating, Inc., individually VERIFICATION William J. Kelly, CEO of Cumberland Valley Land Clem'ing, Inc., a party in this action, verifies that the statements made in the foregoing Answer with New Matter to plaintiffs' Complaint are tree and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authori'Iies. '~at~g Bollingcr VERIFICATION William J. Kelly, CEO ofBoyd E. Diller, Inc., a party in ~Ihis action, verifies that the statements made in the foregoing Answer with New Matter to plaintiffs' Complaint are tree and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Bollinger CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUP~NT TO RULE 4009.22 IN THE MATTER OF: AMMON H. BOLLINGER AND VIOLET L BOLLINGER . -VS- EOYD E. DILLER, ET AL COURT OF COMMON PLEAS TERM, CASE NO: 03-3361 AS a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of WILLIAM DENGLER, ---certifies tha~ (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 twenty days prior to the date on which the ,subpoena is sought to be served, A copy of the notice of intent, includin9 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: 11/18/2_~003 y ~or DEFEN~T~ DEll-458236 3 4 3 3 6 --LO 1 COMMONWEALTH OF PEN'NSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: AMMON H. BOLLINGER AND VIOLET L. BOLLINGER BOYD E. DILLER, ET AL COURT OF C0MMON PLEAS TERM, CASE N0: 03-3361 NOTICE OF II~T~TT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND FOR DISCOVERY PURSIIANT TO RULE 4009.21 CUMBERLAND FAMILY PRACTICE MEDICAL RECORDS TO: CLARK DEVERE, ESQ. MCS on behalf of WILLIAM DENGLER, ESQ. intends to serve a subpoena identical to the one that is 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 subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 10/29/2003 CC: WILLIAM DENGLER, ESQ. CHRISTINE SAWYER - 167713 - 4660084775001 Any questions regarding this matter, contact MCS on behalf of WILLIAM DENGLER, ESQ. Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215} 246-0900 DE02-246274 343 3 6--CO2 COMMONWEALTH OF p__ENNSYLVAN_I~A COUNTY OF CUIVlBEF~LAND AMMON Iq. BOLL1NGER AND vIOLET L. : : File No. ____0.3_:33~1 VS. BOYD E. DILLER, ET AL : ~UCE DOCUMENTS OR TILINGS ~ERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for~ (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documentS orthings:_ **.---** s~RID~R**** -- -- at __ XhLM~ Grour~,lnc., 1601 I~trket 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: NAME: ..~WILLIAM DE~GLER~.~.~ES .Q~ ADDRESS: __150 S. wARNER RO.~D ..S.UiTE 270 K~ING OF PRUSSIA. TELEPHONE: _(215~ 246-0~00 sUPREME coURT ID #: ATI'ORNEY FOR: __Defe, l~dant ~ Date: Seal of the Court Deputy 34336-01 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: CUMBERLAND FAMILY PRACTICE 4470 VALLEY ROAD ENOLA, PA 17025 RE: 34336 AMMON BOLLINGER Please call for prior approval for fees in excess of $'100.00 for hospitals, $50.00 for all other providers. Entire medical file, including but not limited to any and all records, correspondence to and from the consulting and treating physicians, ~es, memoranda, handwritten notes, history and physical reports, medication/ prescription records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, diagnosis or treatment pertaining to: Dates Requested: up to and including the present. Subject: AMMON BOLLINGER 11 WEST HIGHLANG AVE., ENOLA, PA 17025 Social Security #: 208-24-2776 Date of Birth: 04-01-1931 SU10-471730 3 4 3 3 6 --LO 1 .'5; WILLIAM E. DENGLER, ESQUIRE Attorney I,D. No: 72696 LAW OFFICE OF ROBERT $. McDADE 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (610) 687-8303 AMMON H. BOLLINGER and VIOLET L. BOLLINGEK V. BOYD E. DILLER, INC., individually and t/d/b/a CUMBEKLAND VALLEY LAND CLEARING, INC. and CUMBERLAND VALLEY LAND CLEARING, INC., individually ATTORNEY FOR DEFENDANTS BOYD E. DILLER, INC., individually and t/d/b/a CUMBEKLA.ND VALLEY LAND CLEARING, INC. and CUMBER.LAND VALLEY LAND CLEARING, INC., individually CUMBEKLAND COUNTY COURT OF COMMON PLEAS NO. 03-3361 TP,.IAL BY JURY OF 12 DEMANDED ORDER TO SETT..L._E., OISCONT~ AND END TO THE PROTHONOTAKY: Kindly mark this matter settled, discontinued and ended 'upon payment of costs only. Clark DeVe~~re - Attorney for Plaintiffs Arnrnon H. Bollinger and Violet L. Bollinger Dated: