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HomeMy WebLinkAbout07-3528 2035743 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M..SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 S. 21st Street Philadelphia, PA 19103 (215) 988-9600 Attorney for Plaintiff Allstate Insurance Co., Individually and as Subrogee on behalf of Maria Desouza P.O. Box 4360 Portsmouth NH 03802-4360 and Maria Desouza 1204 S. Bright Street Hillside NJ 07205-2606 VS. Robert Worthington 190 Newville Road Shippensburg,PA 17257-9502 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: 07 - 35-2P (210t 1vC ,-n t "L. NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 COMPLAINT IN CIVIL ACTION 1. Maria Desouza, (the "Plaintiff"), is an adult individual residing at the address above captioned. 2. Plaintiff, Allstate Insurance Co., is a corporation duly authorized to conduct business within the Commonwealth of Pennsylvania, and is subrogated to the rights of the Plaintiff arising out of the within claim. 3. Robert Worthington, (the "Defendant"), is an individual residing at the above-captioned address. 4. On or about July 14, 2005, the Plaintiff did own and possess a certain motor vehicle, involved in the accident hereinafter referred to. 5. On or about July 14, 2005, the Defendant did operate and control a certain motor vehicle, involved in the accident hereinafter referred to. 6. On or about July 14, 2005,IN Prince Georges County, Maryland, the vehicle of the defendant was being operated in such a negligent and careless manner that it came into violent contact with the plaintiff's vehicle causing property damage to the Plaintiff's motor vehicle. 7. At the time and place aforesaid, the negligence and carelessness of the Defendant consisted of the following: a. Operating said vehicle at a high and excessive rate of speed under the circumstances; b. Failing to give proper and sufficient warning of the approach of said vehicle; C. Failing to have said vehicle under proper and adequate control at the time; d. Operating said motor vehicle without due regard for the rights, safety and position of the Plaintiff herein at the point aforesaid; e. Failing to sound a horn or other signaling device as to give warning to the plaintiff; f. Violating the applicable rules and regulations of the road, ordinances and the statutes; and g. Operating said vehicle without observing and heeding the road and traffic conditions then and there existing. 8. As a result of Defendant's negligent and careless operating of the motor vehicle, the plaintiff's motor vehicle sustained damages in the amount of $4,829.47. 9. At all times material hereto the plaintiff was insured by plaintiff, Allstate Insurance Co.. 10. As a further result of the defendant's negligence, Allstate Insurance Co. has made compensation for said property loss to the plaintiff. 11. Plaintiff Allstate Insurance Co., individually and as subrogee on behalf of the plaintiff, Maria Desouza, has paid money to the plaintiff for property damage in the amount of $4,829.47 for which plaintiff demands remuneration from the defendant. WHEREFORE, Plaintiff, Allstate Insurance Co., claims damages from the Defendant, in the amount of $4,829.47, and/or any other damages this Honorable Court deems just and proper, including attorney's fees and court costs from the Defendant, for arbitration purposes only. GORDON & WEINBERG, P.C. BY: FREDERIC I. W INB G, ESQUIRE PAUL M. SCHOF , JR., ESQUIRE Attorney for Plaintiffs P01d 2035743 VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. I- FREDERIC I. WE NBERG ESQUIRE 49. w d o w d "o c ? CJl 70 0 SHERIFF'S RETURN - REGULAR CASE NO: 2007-03528 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ALLSTATE INSURANCE CO ET AL VS WORTHINGTON ROBERT GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WORTHINGTON ROBERT the DEFENDANT , at 2022:00 HOURS, on the 3rd day of July , 2007 at 190 NEWVILLE ROAD SHIPPENSBURG, PA 17257-9502 LAURIE WORTHINGTON, WIFE by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 18.24 Affidavit .00 Surcharge 10.00 (?,, .00 T'b9)01 fir`' 46.24 Sworn and Subscibed to before me this So Answers: s R. Thomas Kline 07/05/2007 GORDON & WEINBERG By day Deputy Sh iff of A. D. TO THE PLAINTIFF: You are hereby notified to file a written response to the enclosed Answer With New Matter within twe (20) days from service hereof or j gment may b en r d g 'nst Y / Antdd G. Marzano 1J Attorney for Defendant By: Anton G. Marzano, Esquire agmarzano@zarwin.com Identification No.: 45697 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER & TODDY, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 (215) 569-2800 (215) 569-1606 (Fax) Allstate Insurance Co., Individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza V. Plaintiffs, Robert Worthington Defendants Attorney for Defendant, Robert Worthington COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 07-3528 CIVIL TERM ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendant, Robert Worthington, by its attorneys Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C. hereby responds to Plaintiff's Complaint as follows: 1. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 2. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 3. Admitted. 4. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 5. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 6. Denied. Answering defendant specifically denies that he was negligent and/or careless at any time material or relevant to plaintiffs cause of action and that said defendant's alleged negligence and/or carelessness in any way caused or contributed to the alleged accident and/or plaintiffs alleged resulting injuries. For further answer, 2 answering defendant is advised by counsel and therefore avers that the allegations contained in the corresponding paragraph of plaintiffs Complaint are conclusions of law which are automatically deemed denied and are at issue under the Pennsylvania Rules of Civil Procedure without specific denial. Strict proof thereof is demanded at trial, if material. 7. Denied. Answering defendant specifically denies that he was negligent and/or careless at any time material or relevant to plaintiffs cause of action and that said defendant's alleged negligence and/or carelessness in any way caused or contributed to the alleged accident and/or plaintiffs alleged resulting injuries. For further answer, answering defendant is advised by counsel and therefore avers that the allegations contained in the corresponding paragraph of plaintiffs Complaint are conclusions of law which are automatically deemed denied and are at issue under the Pennsylvania Rules of Civil Procedure without specific denial. Strict proof thereof is demanded at trial, if material. (a) It is specifically denied that answering defendant operated said vehicle at a high and excessive rate of speed under the circumstances. On the contrary, at all times pertinent to plaintiffs cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law (b) It is specifically denied that answering defendant failed to give proper and sufficient warning of the approach of said vehicle. On the contrary, at all times pertinent to plaintiff s 3 cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law (c) It is specifically denied that answering defendant failed to have said vehicle under proper and adequate control at the time. On the contrary, at all times pertinent to plaintiffs cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law (d) It is specifically denied that answering defendant operated said motor vehicle without due regard for the rights, safety and position of the plaintiff herein at the point aforesaid. On the contrary, at all times pertinent to plaintiff's cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law (e) It is specifically denied that answering defendant failed to sound a horn or other signaling device as to give warning to the plaintiff. On the contrary, at all times pertinent to plaintiff's cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law (f) It is specifically denied that answering defendant violated the applicable rules and regulations of the road, ordinances 4 and the statutes. On the contrary, at all times pertinent to plaintiff's cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law (g) It is specifically denied that answering defendant operated said vehicle without observing and heeding the road and traffic conditions then and there existing. On the contrary, at all times pertinent to plaintiff's cause of action, answering defendant acted reasonably, properly, prudently, without negligence, and as prescribed by law By way of further answer, the averments set forth in subparagraphs (a) through (g) inclusive set forth conclusions of law which require no answer but which are nevertheless denied. Denied. Answering defendant specifically denies that he was negligent and/or careless at any time material or relevant to plaintiffs cause of action and that said defendant's alleged negligence and/or carelessness in any way caused or contributed to the alleged accident and/or plaintiffs alleged resulting injuries. For further answer, answering defendant is advised by counsel and therefore avers that the allegations contained in the corresponding paragraph of plaintiffs Complaint are conclusions of law which are automatically deemed denied and are at issue under the Pennsylvania Rules of Civil Procedure without specific denial. Strict proof thereof is demanded at trial, if material. 5 9. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. 10. Denied. Answering defendant specifically denies that he was negligent at any time material or relevant to plaintiffs cause of action and that said defendant's alleged negligence in any way caused or contributed to the alleged accident and/or plaintiffs alleged resulting injuries. For further answer, answering defendant is advised by counsel and therefore avers that the allegations contained in the corresponding paragraph of plaintiffs Complaint are conclusions of law which are automatically deemed denied and are at issue under the Pennsylvania Rules of Civil Procedure without specific denial. Strict proof thereof is demanded at trial, if material. 11. Denied. The allegations set forth in this paragraph are conclusions of law to which no answer is required. To the extent, however, that an answer may be required, the allegations are denied because after reasonable investigation, the answering defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments set forth and, accordingly, the said averments are denied. Strict proof thereof, if material, is demanded at the trial of this cause. WHEREFORE, Defendant, Robert Worthington prays this Honorable Court enter judgment in answering defendant's favor and against all persons or parties with costs. NEW MATTER -I 12. Plaintiff s alleged causes of action are barred by the applicable Statute of Limitations for any acts or omissions occurring more than two (2) years prior to the filing of the Complaint. 13. Nothing done or omitted to be done by answering defendants was the proximate cause of any injuries to plaintiff. 14. The alleged injuries to plaintiff were caused or contributed to in whole or in part, by the negligence or want of due care of persons, parties and/or organizations other than answering defendants and over whom said answering defendants had no control or right of control or responsibility. 15. If the defendants were negligent in any respect as alleged in the Complaint, all such allegations being specifically denied, said defendants' negligence was passive and the injuries sustained by plaintiff were the result of an intervening negligent act of a third person or persons which was a superseding cause of plaintiff s injuries and, therefore, the defendants are not liable. 16. The alleged injuries of the plaintiff were the result of plaintiff s own negligence which exceeded any negligence of defendants, all negligence of the defendants being expressly denied, and, therefore, pursuant to the Pennsylvania Comparative Negligence Act (42 Pa. C.S.A. §7102), plaintiff s claim is barred. 17. Because the plaintiff had knowledge of, understood and appreciated the consequences of plaintiff s actions, plaintiff voluntarily assumed the risk and, therefore, the defendants are not liable. 7 18. The Complaint, in whole or in part, fails to state a cause of action upon which relief can be granted. 19. If there is a judicial determination that Pa. R.C.P. 238 is constitutional, said constitutionality being expressly challenged as in violation of the Due Process of Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983; Article I, Section I, 6, 11, 26; and Article V., Section 10(c) of the Pennsylvania Constitution, then liability for any interest imposed by the Rule should be suspended during the period of time that plaintiff: (a) fails to convey to the defendants a settlement demand figure; (b) delays in responding to Interrogatories; (c) delays in responding the Request to Produce; (d) delays in producing the plaintiff for a physical examination; and (f) delays in any other discovery request made by the defendants and, as a result of any delay, the plaintiff should be estopped from obtaining interest because of any violation of the discovery rules. 20. At all times material hereto, the answering defendants maintained proper and adequate control of their vehicle, maintained a proper lookout, used due care for the right, safety and position of others and obeyed the ordinances and statutes of the Commonwealth of Pennsylvania and its local municipalities governing the safe operation of motor vehicles on streets and highways. 21. Defendants assert all of the defenses available under the Motor Vehicle Financial Responsibility Law, 75 Pa. C. S., § 1701,et seq., and aver that the plaintiff's remedies are limited exclusively thereto, and therefore, the present action is barred or limited. 22. Claims of the plaintiff for products, services and accommodations for: 8 (a) professional medical treatment; (b) emergency health services; (c) medical and vocational rehabilitation services; (d) work income losses, past, present, or future; and (e) Any and all other economic losses are not recoverable from defendant under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 23. At all material times, defendants were faced with a sudden emergency. 24. Plaintiff's claims, if any, are barred, in whole or in part due to its failure to mitigate damages. 25. Plaintiff's alleged damages consist of economic losses not recoverable in tort. 26. Plaintiffs claims for damages are barred by operation of 75 Pa. C.S.A. § 1705. 27. The alleged injuries of the plaintiff are the result of plaintiff s own negligence which exceeded any negligence of defendant, all negligence of the defendant being expressly denied, and therefore, pursuant to the Doctrine of Contributory Negligence set forth by the State of Maryland plaintiff claim is barred. 28. Defendant asserts all of the defenses available under the Maryland Transportation Article Title 17 et seq., and avers that plaintiff's remedies are limited exclusively thereto and thereto, the present action is barred or limited. 9 29. Defendants assert that the laws of the State of Maryland apply to the instant matter since the accident occurred in the State of Maryland. WHEREFORE, answering defendant prays this Honorable Court enter judgment in answering defendant's favor and against all other persons or parties with costs. ZARWIN, BAUM, DeVITO, KAPLAN, HAER & TODDY, P.C. By: ae?? Anton G. *arzano, ir Attorney for Defendant, Robert Worthington Date: ?16 to, 10 VERIFICATION I, Robert Worthington hereby state that I am a Defendant in this action and verify that the statements made in the foregoing Answer to Plaintiff's Complaint With New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Robert Worthington Dated: 7-°30 - &3 7 Worthington CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: Frederick I. Weinberg, Esquire Gordon & Weinberg, P.C. 21 South 21 S` Street Philadelphia, PA 19103 Anto G. Marzano, Esquire Dated: 6v U By: Anton G. Marzano, Esquire agmarzano@zarwin.com Identification No.: 45697 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER & TODDY, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 (215) 569-2800 (215) 569-1606 (Fax) Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza V. Robert Worthington Attorney for Defendant, Robert Worthington COURT OF COMMON PLEAS CUMBERLAND COUNTY : DOCKET NO. 07-3528 CIVIL TERM Plaintiffs, Defendants. MOTION TO COMPEL DISCOVERY Defendant, Robert Worthington, by and through his counsel Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., hereby moves this Honorable Court for an Order compelling Plaintiff, Maria DeSouza to submit full and complete responses to Defendant's Interrogatories and Request for Production of Documents within twenty (20) days from the date of the attached Order. 1. Pursuant to Rule 208.3(a)(2) there has been on other rulings in this matter on any issue to date. 2. Plaintiff is represented by Joel Flint, Esquire of Gordon & Weinberg, P.C., 21 South 21St Street, Philadelphia, Pennsylvania 19103. 3. By letter dated October 25, 2007 defense counsel advised plaintiff's counsel that unless plaintiff's Answers to the Interrogatories and Request for Production of Documents were received within five days from the date of the letter the Motion to Compel will be filed with the Court. See a true and correct coy of the October 13, 2007 letter attached hereto as Exhibit "A". 4. Plaintiff s counsel e-mailed defense counsel on October 29, 2007 advising that the person to whom he had been directing a-mails is no longer there, and he requested an additional two (2) weeks. See a true and correct copy of the October 29, 2007 e-ail attached hereto as Exhibit "B". 5. Defense counsel by e-mail advised plaintiff s counsel on October 29, 2007 that he was filing the Motion to Compel plaintiff s Answers to discovery. See a true and correct copy of the October 29, 2007 e-mail attached hereto as Exhibit "C". It has been over two months since the discovery answers were due. 6. On or about August 9, 2007, Defendant's counsel forwarded to the offices of Plaintiff, Defendant's Interrogatories and Request for Production of Documents to Plaintiff herein. A true and correct copy of the August 9, 2007 letter is attached hereto as Exhibit "D". 7. By letter dated September 13, 2007, defense counsel inquired of plaintiffs counsel when plaintiffs Answers to the outstanding discovery requested would be produced. See a true and correct copy of the September 13, 2007 letter attached hereto as Exhibit "E". 8. Pursuant to Pa. R.C.P. 4006 a party served with Interrogatories must file Answers and/or objections to the Interrogatories within thirty (30) days after service. 9. By e-mail dated September 21, 2007 plaintiffs counsel advised defense counsel that he was delayed in getting the Request to his client and they are working on the responses. See a true and correct copy of the September 21, 2007 e-mail attached hereto as Exhibit "I"'. 2 10. Pursuant to Pa. R.C.P. 4009(b)(2), a party upon whom a Request for Production of Documents is served, shall serve a written response and/or objection thereto within thirty (30) days after service. 11. As of this date, no response or objections have been received from plaintiff for any of the above discovery requests. 12. Rule 4019 of the Pennsylvania Rules of Civil Procedure provides that a Court may on motion make an appropriate Order, if a party fails to serve sufficient answers or objections to written Interrogatories under Rule 4005, or if a party fails to respond to a Request for Production of Documents made under Rule 4009. 13. Defendant is being severely prejudiced and hampered in their ability to properly pursue and litigate this claim. WHEREFORE, Defendant, Robert Worthington, respectfully request that the Court enter the attached Order directing plaintiff to fully and completely answer Defendant's Interrogatories and Request for Production of Documents within ten (10) days. ZARWIN, BAUM, DeVITO, KAPLAN, SCJIAER & TODDY, P.C. By: I ' Z]!!) ? I"4 v I LW rton G. Marzano, Esquire Attorney for Defendant, Robert Worthington 3 VERIFICATION I, Anton G. Marzano, Esquire, on behalf of the Defendants' state that I am the attorney in the within matter and I am authorized to state that the facts set forth in the foregoing Motion to Compel Discovery Answers are true and correct to the best of my knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. Ant G. Mariano Dated: ) I' l D 2 CERTIFICATE OF SERVICE I do hereby certify that service of a true and correct copy of the within Motion to Compel Discovery was made on the 1 st day of November, 2007 to counsel below named by United States Mail, Postage pre-paid: Joel Flint, Esquire Gordon & Weinberg, P.C. 21 South 21St Street Philadelphia, PA 19103 ZARWIN, BAUM, DeVITO, KAPLAN SCHAER & TODDY, P.C. By: Anton G. arzano, Esquire ??7 Attorney for Defendant, Robert Worthington Date: // // & 7 C"7 A`J - x; CD 7 C-11 2 C:; i - .LL By: Anton G. Marzano, Esquire agmarzano@zarwin.com Identification No.: 45697 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER & TODDY, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 (215) 569-2800 (215) 569-1606 (Fax) Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza V. Plaintiffs, Robert Worthington Defendants. ORDER Attorney for Defendant, Robert Worthington NOV 0 72DD7? COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 07-3528 CIVIL TERM AND NOW, this gl7, day of Nvr0,f--,, , 2007, upon consideration of the Defendant, Robert Worthington's Motion to Compel Discovery of Plaintiff, Maria DeSouza, it is hereby ORDERED and DECREED, that Plaintiff shall submit full and complete responses to Defendant's Interrogatories and Request for Production of -A,.4F (70) rcrv. k, y Documents within Pxga4y{2 days from the date of this Order. BY THE COURT: A Joel Flint, Esquire For the Plaintiff n Anton G. Marzano, Esquire For the Defendant 7 J. LC *01 WV b- ACM LODZ AdVi0i }add 3. 30JA ,)-(Wld IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza V. Robert Worthington Plaintiffs, No.: 07-3528 MOTION FOR SANCTIONS Defendants. Defendant, Robert Worthington, by and through his undersigned attorneys, hereby requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 4019 imposing sanctions upon Plaintiffs, Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza, for their failure to obey a Court Order to answer Defendant, Robert Worthington's, Interrogatories and Request for Production of Documents and in support thereof avers the following: 1. Pursuant to Rule 208.3(a)(2) the Honorable Kevin A. Hess ordered on November 9, 2007 that plaintiffs shall submit full and complete responses to Defendant's Interrogatories and Request for Production of Documents within thirty (30) days from the date of service of the Order. See a true and correct copy of the November 9, 2007 Order attached hereto as Exhibit "A". 2. Defendant's counsel served a copy of the November 9, 2007 Order upon Plaintiffs, Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza, by letter dated November 14, 2007. (See letter to Plaintiff s Counsel dated November 14, 2007 attached as Exhibit `B".) 3. Plaintiffs' counsel failed to file an answer to the Motion or response to the Order of the Court. 4. Plaintiffs are represented by Joel Flint, Esquire, Gordon & Weinberg, P.C., 21 South 21St Street, Philadelphia, Pennsylvania 19103. 5. Plaintiff failed to comply with the November 9, 2007 Order. 6. Defendant, Robert Worthington, served Interrogatories and Request for Production of Documents on Plaintiffs, Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza, on August 9, 2007. 7. Plaintiffs failed to respond or make objections to these requests within thirty (30) days after service, as required by Rule 4009 of the Pennsylvania Rules of Civil Procedure. It has been over five (5) months since the discovery was served on plaintiffs, and no answers or objections have been made by plaintiff. 8. Pa. R.C.P. 4019(a)(1)(viii) provides, respectively, that the Court may make an appropriate Order if a party or person otherwise fails to make discovery or to obey an Order of the Court respecting discovery. 9. Pa. R.C.P. 4019(c)(3) provides that the Court may enter a Judgment of Non Pros against the Plaintiff as an appropriate sanction against the disobedient party for failure to comply with discovery rules and Court Order. 10. Pa. R.C.P. 4019(g)(1) provides that the Court may require party to pay reasonable expenses, including attorney's fees, incurred by the moving party requiring an Order of Compliance and subsequent Order for Sanctions. Defendant has incurred attorney's fees and costs of $500.00 in connection with this matter. 2 11. By letter dated January 3, 2008 defense counsel advised plaintiffs' counsel that the appropriate Motion will be filed with the Court if plaintiffs' Answers to the discovery requests were not received by January 3, 2008. See a true and correct copy of the January 3, 2008 letter attached hereto as Exhibit "C". 12. Since Plaintiffs, Allstate Insurance Co., individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza, have failed to comply with the November 9, 2007 Order, the Court should enter a Judgment of Non Pros against the Plaintiffs, and require Plaintiffs to pay the reasonable expenses, attorney's fees, incurred by Defendant in obtaining the Order of Compliance and this Order for Sanctions. WHEREFORE, Defendant, Robert Worthington, respectfully request that this Honorable Court grant its Motion and order plaintiffs to pay counsel fees for the preparation of the Motion and enter a Judgment of Non Pros. In the alternative the Court is requested to order plaintiffs to submit full and complete Answers and Responses to Defendant's Interrogatories and Request for Production of Documents within five (5) days of the date of the Order or risk further sanctions. BAUM, DeVITO, KAPLAN, & TODDY, P.C. By: Anion G. Marzano, Esquire Attorney for Defendant, Robert Worthington Date: a U 0 3 VERIFICATION I, Anton G. Marzano, Esquire, on behalf of the Defendant, Robert Worthington state that I am the attorney in the within matter and I am authorized to state that the facts set forth in the foregoing Motion for Sanctions are true and correct to the best of my knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. Anton kMar-zano CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: Joel Flint, Esquire Gordon & Weinberg, P.C. 21 South 21 st Street Philadelphia, PA 19103 An o 'G. Mariano, Esquire oDated: - U U EXHIBIT "A" ry ; Anton (;. iv1arzano, Esquire agmarzano,nzarwin.com Identification No.: 45697 ZARWIN, BAUI\'I, DcV1T0, KAPLAN, SCHAER & TODDY, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 (215) 569-2800 (215) 569-1606 (Fax) Allstate Insurance Co.. individually and as Subro,ce on behalf of Maria DeSOLIX-l and v. Plaintiffs. Robert Worthington Defendants ORDER Attorney for Defendant, Robert Worthington COURT OF COi`-IMON PLEAS CUI BE-RLAND COUNTY DOCKET N0. 07-3528 CIVIL TERM AND NOW. this day oft, 2007, upon consideration of the DeC_ndant. Robert \Vorthim,toll's klotion to Compel Discovery of Plaintiff, Maria DeSouza, it is hercbv ORDERED and DECREED, that Plaintiff shall submit full and complete respcrnscs to Defendant's lnterroeatories and Request fornProduction of AAA- A- t30 ? 9e-4-VItr?c_ Docciments «ithi;? c o 's 1i-om the date ol'this Order. BY THE COURT: Joel Flint, Esquire For the Plaintiff ?.?_- Anton G. IN"faizano. i ? tuu? For the Defendant ?' f? Dnt??b? l1TT??????____ I . ij' FF., ?c-'t.J rli! ?1r{.fit)!, I here t1 r, Jt:l s??'.ti: Q at Cat•lJl? Pa S--!,JC0u(1 .?? EXHIBIT "B" ZARWIN • BAUM • EVITO KAPLAN * SCHAER • TODDY + P.C. ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@zarwin.com January'), 2008 Joel Flint, Esquire Gordon & Weinberg, P.C. 21 S. 21" Street Philadelphia, PA 19103 Re: Maria DeSouza v. Robert Worthington CCP, Cumberland County, No.: 07-3528 File No.: 22169 Dear Mr. Flint: We forwarded to you by letter dated November 14, 2007 the Court's November 9, 2007 Order compelling plaintiff to submit full and complete responses to our client's Interrogatories and Request for Production of Documents within thirty (30) days from the date of service of this Order. To date we have not received your client's Answers to the discovery regLICSts. It is has been more than thirty (30) days since the Order was forwarded to you. Aceordinply, if we do not receive your client's Answers to the discovery requests Nvithin five (5) days of the date of this letter we will have no other alternative but to file the appropriate IvIotion with the Court. Veny truly yours, c n`ton G. Marzano AGN4:sa 1515 MARKET STREET e 12TH FLOcR a PHILADELPHIA, PA 19102-1981 * (215) 569-2800 + FAX (215) 569-1606 + PENNSYLVANIA OFFICES: BETHLEHEM 4 CONSHOHOCKEN + NEW iERSEY OFFICES: JERSEY CITY • LINWWD * MARLTON EXHIBIT "C" ZAR)XIN • BAUM • L EVITO KAPLAN • SCHAER • TODDY • P.C. ATTORNEYS AT LAW ANTON G MARZANO Member PA & NJ Bar agmarzano@zarwin.com November 14, 2007 Joel Flint, Esquire Gordon & Weinberg, P.C. 21 S. 21" Street Philadelphia, PA 19103 Re: Maria DeSouza v. Robert Worthington CCP, Cumberland County, No.: 07-328 File No.: 22169 Dear Mr. Flint: This \vIII serve to forward to you a copy of the November 9, 2007 Order of the Court compelling plaintiff to submit full and complete responses to defendant's Interrogatories and Request for Production of Documents within thirty (30) days from the date of service of this Order. Accordingly, we look forward to receiving }'our client's Answers to the Discovery Requests for this matter. If we do not receive )!our client's Answers to Discovery we will file the appropriate Motion. l11toVe, truly yours, n G. Marzano AGNI:sa Enclosure 1515 MARKET STREET * 12TH FLOOR -1' PHILADELPHIA, FA 19102-1981 r (215) 569-2,900 t F.L.X (215) 569-1606 'v'v"e,' ?.LAR\JI!J.CO!vi PENNSYLVANIA OFFICES: BETHLEHEM' CONSHOHOCKEN ? NEW JERSEY OFFICES. JERSEY CITY ? LINWOOD e MARITON ? -r ALLSTATE INSURANCE CO., individually and as Subrogee on behalf of MARIA DESOUZA, and MARIA DESOUZA, Plaintiffs vs. ROBERT WORTHINGTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3528 CIVIL IN RE: DEFENDANT'S MOITON FOR SANCTIONS ORDER AND NOW, this z- 7' day of February, 2008, a brief argument on the defendant's Motion for Sanctions is set for Thursday, April 17, 2008, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, /Joel Flint, Esquire For the Plaintiff ?Anton G. Marzano, Esquire For the Defendant Kennedy Trucking :rlm Co, rs m? L( l a?28?o? 4444 A. Hess, J. J 1 Ct c. & i ?? try By: Anton G. Marzano, Esquire agmarzano@zarwin.com Identification No.: 45697 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER & TODDY, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 (215) 569-2800 (215) 569-1606 (Fax) Allstate Insurance Co., Individually and as Subrogee on behalf of Maria DeSouza and Maria DeSouza V. Robert Worthington Plaintiffs, Attorney for Defendant, Robert Worthington COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 07-3528 CIVIL TERM Defendants. PRAECIPE TO WITHDRAW MOTION FOR SANCTIONS TO THE PROTHONOTARY: Kindly withdraw the Defendant, Robert Worthington's Motion for Sanctions in the above-captioned matter, which is scheduled for April 17, 2008 at 2:30 p.m., in Courtroom Number 4, Cumberland County Courthouse, Carlisle, Pennsylvania. ZARWIN, BAUM, DeVITO, KAPLAN, S HAER & TODDY, P.C. By: An on G. arzano, Esquire Attorney for Defendant, Robert Worthington Date: 1 CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document upon all parties or their attorney of record as follows by regular First Class Mail, postage prepaid, on this date: Joel Flink, Esquire Gordon & Weinberg, P.C. 21 South 21 St Street Philadelphia, PA 19103 Anton G. Marzano, Esquire Dated: O& C7 t? j -t- µ} c rt 2035743 GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 Maria Desouza 1204 S. Bright Street Hillside NJ 07205-2606 COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. Robert Worthington DOCKET NO. : 07-3528 ORDER TO SETTLE DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter settled, discontinued and ended upon payment of your costs only. GORDON & WEINBERG, P.C. BY: FREDERIC I. BERG, ESQUIRE JOEL M. FLINK, ESQUIRE Attorney for Plaintiff P003 c? C) -r? na -70 txm '.., ,'` c ;