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HomeMy WebLinkAbout07-3895 F: \FILES\General\C=ent\ 12328\ 1228. I .pral/nlm Created: 9/20/04 0:06PM Revised: 6/26/07 9:30AM 12328 1 Hubert X. Gilroy, squire MARTSON DE ORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Stre Carlisle, PA 1701 (717) 243-3341 Attorneys for Plai tiff ESTATE OF LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS OF by THOMAS E. B NTZ, Administrator CUMBERLAND COUNTY, PENNSYLVANIA of THE ESTATE F LESLIE K. BENTZ, Plaintiff V. : NO. 2007- 3 "S' CIVIL ACTION - LAW BARBARA TRUCKING, INC., BARBARA TRUCKING COMPANY, INC.: 0 and DANE D. CLARK, : Defendants JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHO Please issue named Defendants. 10TARY OF CUMBERLAND COUNTY: a writ of summons in favor of the above-named Plaintiff against the above- MARTSON LAW OFFICES By Hu ert X. Gilr ,Esquire I.D. Numbe 9943 10 East Hi Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: June 26, 20 7 bo? ? J Q n " T,1 fT N r? a N ?d y o ? a J Q t v C, w A? A? v fl w? t A "1 , - Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS ESTATE OF by THOMAS of THE ESTA Plaintiff BARBARA T BARBARA T R.R.5 BOX and 3661 RT and DANE D. PUNXUTAW Defendant To BARBAIU DANE D. CLA You are E. BENTZ, Ad has/ have com to defend or a d (SEAL) SLIE K. BENTZ, BENTZ, Administrator OF LESLIE K. BENTZ Court of Common Pleas No 07-3895 LUCKING, INC., LUCKING COMPANY, INC. '3 BROOKVILLE, PA 15825 8 NORTH BROOKVILLE, PA 15825 CLARK, 409 WOODDALE DRIVE iEY, PA 15767 In CivilAction-Law TRUCKING, INC., BARBARA TRUCKING COMPANY, INC.and y notified that ESTATE OF LESLIE K. BENTZ, by THOMAS trator of THE ESTATE OF LESLIE K. BENTZ, the Plaintiff(s) ;d an action in Civil Action-Law against you which you are required judgment may be entered again§j you. CurtyS R. Lon O?A ry Date June 27, 2007 By G? Attorney: HUB RT X. GILROY, ESQUIRE MAR SON LAW OFFICES Name: Address: 10 Attorney for: P Telephone: 71 Supreme Court T HIGH STREET ISLE, PA 17013 L3-3341 No. 29943 Deputy F: \F1 LE S \Genera1\Curte nt\ 12329\12328. l . pra 1 /nlm Created: 9/20/04 0:06PM Revised: 7/2/07 1:49PM 12328.1 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS OF by THOMAS E. BENTZ, Administrator CUMBERLAND COUNTY, PENNSYLVANIA of THE ESTATE OF LESLIE K. BENTZ, Plaintiff V. NO. 2007-3895 CIVIL ACTION - LAW BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., R.R. 5, Box 73 Brookville, PA 15825 and 3661 Route 28 North Brookville, PA 15825 and DANE D. CLARK, 409 Wooddale Drive, Punxutawney, PA 15767 Defendants JURY TRIAL OF TWELVE DEMANDED AMENDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a writ of summons in favor of the above-named Plaintiff against the above- named Defendants. MARTSON LAW OFFICES Bye /W 0 ?Z Hubert X. Gilroy, E I.D. Number 29943 10 East High Stre Carlisle, P. 17 3 (717) 243-334 Attorneys for Plaintiff Date: July 2, 2007 L . n co Commonwealth of Pennsylvania County of Cumberland AMENDED WRIT OF SUMMONS Court of Common Pleas Estate of Leslie K. Bentz, by Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz Plaintiff Vs. No 07-3895 Barber Trucking Inc., Barber Trucking Company, Inc R.R. 5, 73 Brookville, Pa. 15825 and 3661 Route 28 North Brookville, Pa. 15825 and Dane D. Clark 409 Wooddale Drive Punxutawney, Pa. 15767 In CivilAction-Law Defendant To Barber Trucking, Inc., Barber Trucking Company, Inc and Dane D Clark, You are hereby notified that Estate of Leslie K Bentz by Thomas E Bentz, Administrator of the Estate of Leslie K Bentz the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) s ' Curtis R. Long, Prothono ary Date 07/03/07 By -Aug" eputy Attorney: Martson Law Offices Name: Hubert X Gilroy Esquire Address: 10 East High Street Carlisle, Pa. 17013 Attorney for: Plaintiff Telephone: 717-243-3341 Supreme Court ID No. 29943 J, SILVERMAN & KRAWITZ BY: JEFFREY A. KRAWITZ, ESQUIRE Attorney I.D. No.: 49530 Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 (215) 569-0000 ESTATE OF LESLIE BENTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs V. NO. 07-3895 BARBER TRUCKING, INC., BARBER CIVIL ACTION - LAW TRUCKING COMPANY, INC. and DANE B. CLARK Defendants. JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendants Barber Trucking, Inc., Barber Trucking Company, Inc. and Dane B. Clark in the above-captioned matter. SILVERMAN & KRAWITZ BY?`? WFRfiY A. KRA7)?T Atto eys for Defendants Barber Trucking, Inc., Barber Trucking Company, Inc. and Dane B. Clark 1362\072\pleads\entapp.080807.WPD 1 CERTIFICATE OF SERVICE JEFFREY A. KRAWITZ, ESQUIRE, hereby certifies that he did cause a copy of Entry of Appearance on behalf of Defendants Barber Trucking, Inc., Barber Trucking Company, Inc. and Dane B. Clark to be sent first class mail on August 22, 2007 to: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Timothy Shollenberger, Esquire Schollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 SILVERMAN & KRAWITZ Dane B. Clark Barber Trucking, Inc., Barber IT " rucking Company, Inc. and rv:: r RONALD E. CLARK AND LYNN B. IN THE COURT OF COMMON PLEAS OF CLARK, husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs 07-458 CIVIL TERM v CIVIL ACTION - LAW BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B .: CLARK, Defendants JURY TRIAL DEMANDED ESTATE OF LESLIE K. BENTZ, by IN THE COURT OF COMMON PLEAS OF THOMAS E. BENTS, Administrator CUMBERLAND COUNTY, PENNSYLVANIA of THE ESTATE OF LESLIE K. BENTZ, 07- CIVIL TERM Plaintiff IL ACTION - LAW v BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B .: CLARK, Defendants JURY TRIAL DEMANDED IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 25th day of April, 2008, upon consideration of Plaintiffs' Motion for Status Conference regarding discovery at No. 07-458 Civil Term and 07-3895 Civil Term, and following a conference held in the chambers of the undersigned Judge, in which Plaintiffs Ronald E. Clark and Lynn B. Clark were represented by Timothy A. Shollenberger, Esquire, Plaintiff Estate of Leslie K. Bentz, by Thomas E. Bents, Administer of the Estate of Leslie K. Bentz, was represented by Hubert X. Gilroy, Esquire, and Defendants Barbara Trucking, Inc. Barber Trucking Co., Inc., and Dane B. Clark were represented by Lawrence M. Silverman, Esquire, and pursuant to an agreement of counsel, it is ordered and directed as follows: 1. Factual discovery shall be completed within 60 days of the date of this order; 2. Mediation shall occur within 60 days after the deadline of factual discovery; T 3. If the parties cannot agree upon a mediator within 30 days, the parties shall petition the Court to appoint a mediator; and 4. Defendants concede responsibility for the occurrence of the chain reaction collision and are defending solely on the extent of injuries and the factual cause thereof. By the Court, Timothy A. Shollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 For Plaintiffs Ronald E. Clark and Lynn B. Clark Lawrence M. Silverman, Esquire Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 For Defendants Hubert X. Gilroy, Esquire 10 East High Street Carlisle, PA 17103 For Plaintiff Estate of Leslie Bents, et. al :mae Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-3895 CIVIL ACTION - LAW BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the 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, 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiff, V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-3895 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz, by and through his attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and avers as follows: 1. The Plaintiff, Thomas E. Bentz, is the Administrator of the Estate of Leslie K. Bentz "deceased". 2. Leslie K. Bentz died on May 19, 2006. 3. Thomas E. Bentz was appointed the Administrator of the Estate of Leslie K. Bentz on June 20, 2006 by the Cumberland County Register of Wills, No. 2006-00547 3. Leslie K. Bentz is survived by her parents Thomas E. Bentz and Dorothy L. Bentz, and her sister Elaine C. Bentz. 4. The Defendant, Barber Trucking, Inc., is a Pennsylvania corporation with an authorized place of business at 3661 Route 28, North Brookville, Jefferson County, Pennsylvania. 5. The Defendant, Barber Trucking Company, Inc., is a Pennsylvania corporation with an authorized place of business at 3661 Route 28 North, Brookville, Jefferson County, Pennsylvania. 6. The Defendant Dane B. Clark is an adult individual residing at 409 Wooddale Drive, Punxsutawney, Jefferson County, Pennsylvania. 7. At all times, Defendant Dane B. Clark was acting as the agent, servant and/or employee of and within the course and scope of his employment/agency with Defendants, Barber Trucking Company, Inc. and Barber Trucking, Inc. 8. On or about May 19, 2006, Plaintiffs decedent, Leslie K. Bentz, was operating her 1999 Chevrolet Geo Prism while stopped in traffic in the right hand westbound lane on SR-581 in Camp Hill Borough, Cumberland County, Pennsylvania. 9. At that time, Defendant Clark was operating a 1999 International tractor trailer, owned by Defendant Barber Trucking, Inc., in the right hand westbound lane on SR-581 in Camp Hill Borough, Cumberland County, Pennsylvania. 10. At that time, the Bentz vehicle was located immediately in front of Defendant Clark's tractor trailer. 11. The Bentz vehicle had come to a complete stop along with six other vehicles in front of her. 12. At the aforesaid time and place, Defendant Dane B. Clark failed to stop the 1999 International tractor, colliding with and running over the vehicle operated by Leslie K. Bentz. COUNTI NEGLIGENCE Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Dane B. Clark 13. The averments of paragraphs 1 through 21 of this Complaint are hereby incorporated by reference. 14. At all time relevant hereto, Defendant Dane B. Clark owed a duty of care in the operation of the tractor trailer he was driving. 15. The collision which was caused by the negligence, recklessness, carelessness and outrageous reckless indifference of Defendant Dane B. Clark, in that he: (a) Failed to keep his eyes on the traffic ahead; (b) Driving at a speed in excess of the posted speed limit. (c) Looking down at a map for an extended period of time on a crowded highway while going in excess of the speed limit. (d) Failed to apply his brakes in time to avoid a collision with the vehicles in front of him; (e) Failed to operate and control his tractor trailer to the extent that he could bring it to a safe stop without colliding with vehicles in front of him; (f) Failed to operate his vehicle in accordance with existing traffic conditions; and (g) Permitted his tractor trailer to literally drive on top of the Bentz vehicle. 16. The collision which was described herein caused the death of Leslie K. Bentz, was the direct and proximate result of the negligence of Dane B. Clark. WHEREFORE, Plaintiff demands judgment against Defendant Dane B. Clark in an amount in excess of the mandatory arbitration limits. COUNT II VICARIOUS LIABILITY Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc. and Barber Trucking Company, Inc. 18. Paragraphs 1 through 28 of this Complaint are hereby incorporated by reference. 19. At all time relevant hereto, Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc., as owner of the vehicle operated by Defendant Dane B. Clark, owed a duty to ensure that the vehicle was capable of being safely operated on the highways. 20. Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. are, and were, responsible for the actions, and inaction of Defendant Dane B. Clark, the operator of the tractor trailer owned by Barber Trucking, Inc. and Barber Trucking Company, Inc. 21. Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. negligently entrusted the vehicle which they owned to Defendant Dane B. Clark when they knew or should have known that Defendant Dane B. Clark was not capable of safely operating the vehicle. 17. Defendant's Barber Trucking, Inc., and Barber Trucking Company, Inc., are responsible for the actions of their employee Dane B. Clark while acting within the scope of his employment . WHEREFORE, Plaintiff demands judgment against Defendants in an amount in excess of the mandatory arbitration limits. COUNT III INDEPENDENT NEGLIGENCE Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. 22. Paragraphs 1 through 29 of this Complaint are hereby incorporated by reference 23. Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. had a duty to others, including Decedent Leslie K. Bentz, to hire only safe, competent and properly trained drivers who are qualified to operate tractor trailers. 24. When Defendant Dane B. Clark was hired, Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. knew or should have known that Defendant Clark was unfit to drive tractor trailers and that his driving posed serious risk of harm to the public safety, including the Decedent. 25. In hiring Defendant Dane B. Clark, Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. acted in complete disregard of the rights and safety of others, including the Decedent. 26. Defendant Barber Trucking failed to provide Defendant Dane B. Clark with a truck equipped with a GPS system or a portable GPS system that would have eliminated the chance that Defendant Dane B. Clark would need to stare at a map. WHEREFORE, Plaintiff demands judgment against Defendants in an amount in excess of the mandatory arbitration limits. COUNT IV WRONGFUL DEATH Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. and Dane B. Clark 27. Paragraphs 1 through 34 of this Complaint are hereby incorporated by reference. 28. Plaintiff, in his capacity as Administrator, Personal Representative, and as Beneficiary, brings this claim for wrongful death against the Defendants pursuant to 42 Pa. C.S.A. § 8301(b) and Pa. R. Civ. P. No. 2202. 29. Plaintiffs decedent, Leslie K. Bentz did not bring any other action during her lifetime and no other action for the death of Leslie K. Bentz has been commenced against the Defendants or any other persons. 30. The Plaintiffs decedent, Leslie K. Bentz was survived by the following statutory beneficiaries. Name Address Relationship Thomas E. Bentz 228 Green Hill Road Father Newville, PA 17241 Dorothy L. Bentz 228 Green Hill Road Mother Newville, PA 17241 31. This civil action is brought to recover, on behalf of the said statutory beneficiaries damages legally available under the said act of assembly. 32. As a direct and proximate cause of the Defendants' aforesaid negligence, Plaintiff suffered and Defendants are liable for the following damages: (a) Funeral expenses for the Decedent, Leslie K. Bentz; (b) Expenses to the Estate relating to the Decedent, Leslie K. Bentz's death; (c) The deprivation and injury as a result of the loss of support, comfort, counsel, aid, association, care, and services of the Decedent, Leslie K. Bentz sustained by Thomas E. Bentz and Dorothy L. Bentz; (d) Such other relief as the Honorable Court deems appropriate in this wrongful death action. WHEREFORE, Plaintiff demands judgment against Defendants for all damages which would be recoverable under the Pennsylvania Wrongful Death Act plus interest and costs. COUNT V SURVIVAL ACTION Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. and Dane B. Clark 33. Paragraphs 1 through 40 of this Complaint are hereby incorporated by reference. 34. In his capacity as Personal Representative of the Estate Leslie K. Bentz, Plaintiff, Thomas E. Bentz brings this survival action pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302 et seq. 35. This survival action is brought to recover all damages legally recoverable by the Estate of Leslie K. Bentz under the Pennsylvania Survival Act. 36. As a direct and proximate cause of the carelessness, negligence, and wanton and reckless misconduct of the Defendants as set forth herein, the Plaintiffs decedent, Leslie K. Bentz, died due to the grievous injuries she sustained. 37. As a direct and proximate cause of the carelessness, negligence, and wanton and reckless misconduct of the Defendants as set forth herein, the Plaintiffs decedent, Leslie K. Bentz, experienced intense fear, pain, suffering and emotional distress prior to her death. 38. Said action for pain and suffering is compensable and survives the death of Leslie K. Bentz. 39. By reason of the death of Leslie K. Bentz, her Estate has been deprived of her earnings during the remainder of what would have been her life expectancy less the cost of her personal maintenance. 40. As a direct and proximate cause of the Defendants' actions, Leslie K. Bentz suffered and Defendants are liable to Plaintiff for the following damages: (a) Decedent Leslie K. Bentz's pain and suffering between the time of her injuries and the time of death; (b) Decedent Leslie K. Bentz's total estimated future earning power less her estimated cost of personal maintenance; (c) Decedent Leslie K. Bentz's loss of retirement and social security instrument; and (d) Decedent Leslie K. Bentz's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against Defendants for all damages which would be recoverable under the Pennsylvania Survival Act plus interest and costs. COUNT VI PUNITIVE DAMAGES Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. and Dane B. Clark 41. Paragraphs 1 through 48 of this Complaint are hereby incorporated by reference. 42. The actions of the Defendants were recklessly indifferent to the rights of Plaintiff and other motorists on the highway and constitute outrageous conduct on their part. WHEREFORE, Plaintiff demands judgment against Defendants for damages in excess of the mandatory arbitration limits, punitive damages, costs, delay damages, and any other relief that the Court deems just and reasonable under the circumstances. Date: ?I f ql o Respectfully subm MARTS LA By Hubert X. Gilroy, Es 1 I.D. Number 29943 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Thomas E. Bentz, Administr r o he Estate of Leslie K. Bentz F:\ FILES\Clients112328 BenuTomplaint leslie bentz.doc CL7 7 , tit? J ? ?1 SILVERMAN BURNS KASMEN & KRAWITZ BY: JEFFREY A. KRAWITZ, ESQUIRE DANIEL H. MANDEL, ESQUIRE Attorney I.D. Nos.: 49530 and 206745 Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 (215) 569-0000 ESTATE OF LESLIE BENTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs v. NO. 07-3895 BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC. and DANE B. CLARK Defendants. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO THE COMPLAINT IN THE NATURE OF A DEMURRER AND FOR INSUFFICIENT SPECIFICITY Defendants, Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark, by and through their undersigned counsel, hereby submit their preliminary objections to the complaint (1) in the nature of a demurrer, (2) in the nature of a motion to strike for lack of sufficient specificity, or in the alternative a motion for a more specific pleading, and they allege as follows: 1. PROCEDURAL BACKGROUND AND SUMMARY OF COMPLAINT 1. This action was initiated by Writ of Summons on July 3, 2007 and by Complaint filed subsequently on May 19, 2008 on behalf of the Estate of Leslie K. Bentz, based on a motor vehicle accident occurring on May 19, 2006 involving several vehicles, and is the subject of separate lawsuits in this jurisdiction as well as others.' See Complaint attached hereto as Exhibit «A » 2. These Preliminary Objections are filed due to numerous allegations of recklessness, wanton conduct, and outrageous reckless indifference, among others, that lack a factual foundation and are simply unsupported by the scants facts set out in the complaint, and are a pretext for a claim for punitive damages that is likewise supported by vague, general, factually unspecific and, moreover, legally insufficient allegations. 3. The Complaint contains six separate counts as follows: a. Count One- Negligence of Defendant Dane Clark; b. Count Two- Vicarious Liability of Defendants, Barber Trucking, Inc. and Barber Trucking Co., Inc.; C. Count Three- Independent Negligence of Defendants, Barber Trucking, Inc. and Barber Trucking Co., Inc; d. Count Four- Wrongful Death pursuant to 42 Pa.C.S. § 8301(b) and Pa.R.C.P. No.2202; e. Count Five- Survival Action pursuant to 42 Pa.C.S. § 8302; and f. Count Six- Punitive Damages. 4. According to the Complaint at 112, Defendant Dane Clark failed to stop his vehicle and collided with and ran over the vehicle operated by Leslie K. Bentz, the decedent. 5. The complaint further alleges that Defendants, Barber Trucking, Inc. and Barber Trucking Co., Inc. were interchangeably the owners and/or employers of Defendant Dane Clark 'Clark v. Barber Trucking, Inc. and Dane Clark, C.C.P. Cumberland County No. 07-458; Stung sys and Zeitner v. Barber Trucking and Dane Clark, U.S.D.C. Middle District of PA - No. 4:08- -169. and responsible for his alleged negligence. 6. In addition, Plaintiff alleges that Defendants, Barber Trucking, Inc. and Barber Trucking Co., Inc. are liable on a theory of negligent entrustment of their vehicle. See ¶¶18-17, 22-26. 7. The complaint makes frequent allegations of recklessness, gross negligence and the like, which are not supported with necessary facts. 8. Count One of the complaint alleges Defendant Dane Clark caused the collision by his "negligence, recklessness... outrageous reckless indifference" purported to arise from a series of circumstances, the most specific of which alleges that Defendant was "looking down at a map for an extended period of time on a crowded highway while going in excess of the speed limit;" and "permitted his tractor trailer to literally drive on top of the Bentz vehicle." See ¶15(a)-(g) (emphasis added). 9. The complaint also makes allegations that Defendants Barber Trucking, Inc. and Barber Trucking Co., Inc. "knew or should have known that Defendant Dane Clark was unfit to driver tractor trailers... "however without any specific factual support of any kind that would substantiate that they "acted in complete disregard of the rights and safety of others." See IT 24, 25 (emphasis added). 10. In addition, the complaint claims, without specific factual support of any kind, that decedent's death was caused collectively by Defendants' "carelessness, negligence, and wanton and reckless misconduct." See¶¶ 36, 37 (emphasis added). 11. The claim for punitive damages alleges that Defendants' actions collectively were "recklessly indifferent to the rights of Plaintiff and other motorists... and constitute outrageous conduct," are supported by vague, general, factually unspecific and legally insufficient allegations. See ¶¶ 42. 12. In the ad damnum clause of Count Six, plaintiff seeks punitive damages. II. MOTION TO STRIKE ALL ALLEGATIONS OF RECKLESSNESS 13. Rule 1028(a)(3) permits preliminary objections in the nature of a motion to strike or in the alternative for a more specific pleading. 14. Pursuant to Connor v. Alleg?hegy General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), allegations lacking in specificity must be stricken or clarified in an amended complaint. 15. If a defendant fails to preliminarily object and request that the allegations be stricken or clarified, then plaintiff would be free to expand the proof at trial and defendant would have no recourse. Id. at 311 n.3, 461 A.2d at 602 n. 3. 16. The general and non-specific accusations concerning Defendant Dane Clark's alleged "reckless conduct," and Defendants Barber Trucking, Inc. and Barber Trucking Co., Inc. alleged acts "in complete disregard of the rights and safety of others," and others must be stricken because they are not described with sufficient particularity to place Defendants on notice of what specific acts constitute the alleged negligence. See J¶ 15, 25, 36 and 37. 17. The allegations concerning recklessness and intentional misconduct are not supported by a sufficient factual foundation so that they must be stricken for lack of sufficient specificity or clarified in an amended complaint. See ¶¶ 15, 25, 36 and 37. WHEREFORE, Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark respectfully request that this Honorable Court strike ¶¶ 15, 25, 36 and 37 of the complaint pursuant to Pa.R.C.P. No. 1028(a)(3), or stricken references to recklessness, outrageous reckless indifference, complete disregard of the rights and safety of others, and wanton and reckless misconduct for their lack of specificity, or in the alternative, order the filing of a more specific complaint as to these allegations. III. MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES 18. The claims for punitive damages found in Count Six of the complaint, that Defendants' actions collectively were "recklessly indifferent to the rights of Plaintiff and other motorists... and constitute outrageous conduct," are supported by vague, general, factually unspecific and legally insufficient allegations and therefore must be stricken for legal insufficiency pursuant to Pa.R.C.P. No. 1028(a)(4). See ¶42. 19. Under Pennsylvania common law, punitive damages are "damages, other than compensation or nominal damages, awarded against a person to punish him for his outrageous conduct." Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984) (citing RESTATEMENT OF TORTS (SECOND) § 908(1))-(holding trial court erred in submitting issue of punitive damages to jury); Chambers v. Montg_omM, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963) (vacating punitive damages award, holding that the issue of punitive damages should have been taken from jury). 20. Pennsylvania law does not permit the imposition of punitive damages unless the evidence establishes the defendant's conduct is "outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." RESTATEMENT OF TORTS (SECOND) § 908, comment b; Feld, 506 Pa. at 395, 485 A,2d at 747; Chambers, 411 Pa. at 344, 192 A.2d at 358 (emphasis added). 21. "Punitive damages are appropriate to punish and deter only extreme behavior and, even in the rare instance in which they are justified, are subject to strict judicial control." Martin v. Johns-Manville Corn., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985), rev'd on other grounds by 515 Pa. 377 (1987). 22. Punitive damages may not be assessed against a defendant whose conduct constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. Martin, 508 Pa. at 172, 494 A.2d at 1097. 23. Punitive damages are not justified if the defendant's mental state rises only to the level of ordinary negligence or even gross negligence. Martin, 508 Pa. at 172, 494 A.2d at 1098. 24. Reckless indifference to the interests of others has been said to mean that "the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so reat as to make it highly probably that harm would follow." Evans v. Philadelphia Transp Co 418 Pa. 567, 574, 212 A.2d 440, 443 (1965) (emphasis added); see also Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A. 2d 590, 592 (1988) (noting that wanton conduct, as required for imposition of punitive damages, requires a state of mind in which the tortfeasor realizes the danger to the plaintiff and disregards it to such a degree that "there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.") (emphasis added). 25. The allegations made in ¶ ¶ 15, 25, 36, 37 and 42 of the complaint and alternatively characterized as, inter alia, "recklessness," "outrageous conduct," " reckless indifference," are clearly inapposite to the factual averments and moreover, do not substantiate a claim for punitive damages. 26. Defendant Dane Clark's alleged conduct catalogued in ¶15 does not evidence reckless indifference. Though the allegations possibly support a claim for ordinary negligence, Defendant's mental state, based on the facts alleged, in no way rises to the unmistakable level of an evil motive, which otherwise may justify imposition of punitive damages that serves to punish extreme behavior. 27. Moreover, there are simply no facts in the complaint that support the allegations that Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. "acted in complete disregard of the right and safety of others." See ¶ 25. 28. Finally, the allegations of "wanton and reckless misconduct" as to the Defendants collectively is also unsupported by factual averments, general or specific, and in no way rises to the unmistakable level of an evil motive, which otherwise may justify punitive damages that serves to punish extreme behavior. See ¶ 36, 37. 29. If plaintiff were to develop evidence of outrageous conduct related to the Defendants that befit the extreme intentional or highly reckless misconduct that would substantiate a claim for punitive damages, then plaintiff could seek leave to amend the complaint to include punitive claims. 30. This will have the salutary effect of eliminating the punitive claims based solely on unsubstantiated allegations rather than evidence. 31. Thus, plaintiff s claim for punitive damages in Count Six of the complaint must be dismissed for legal insufficiency pursuant to Pa.R.C.P. No. 1028 (a) (4). WHEREFORE, Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark respectfully request that this Honorable Court strike the request for punitive damages in Counts Six of plaintiff's complaint. IV. MOTION IN THE FORM OF DEMURRER RE: COUNT SIX CLAIM FOR PUNITIVE DAMAGES 32. Accepting the allegations of the complaint as true, plaintiff cannot, as a matter of law, state a claim for punitive damages against Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark 33. Preliminary objections in the nature of a demurrer test the legal sufficiency of a complaint or counterclaim, taking all of the allegations set forth in the pleading as true. Smith v. Wa ner, 403 Pa. Super. 316, 320, 588 A.2d 1308, 1310 (1991). 34. Preliminary objections in the nature of a demurrer admit as true all well-pleaded facts, as well as reasonable inferences therefrom, conclusions of law, however, are not admitted by a demurrer. Cunningham v. Prudential Property and Casualty Ins Co, 340 Pa. Super. 130, 133, 489 A.2d 875, 977 (1985); Bartanus v. Liss, 332 Pa. Super. 48, 52, 480 A.2d 1178, 1180 (1984). 35. Moreover, the Court may take judicial notice of facts which are indisputable and which could be raised in further pleadings. Public Opinion v. Chambersburg Area School Dist., 654 A.2d 284, 286-87, fn4 (Pa. Cmwlth. 1995). 36. Count Six sets forth a claim for punitive damages. 37. The allegations of recklessness and similar depictions interspersed throughout the complaint (at IT 15, 25, 36 and 37) may serve as a pretext for a claim of punitive damages, but as set forth above, these allegations are not well-pleaded because they are not supported by sufficient factual foundation. 38. In order to award punitive damages, the defendant's conduct must be "malicious, wanton, reckless, willful, or oppressive." Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984). 39. "Punitive damages are appropriate to punish and deter only extreme behavior and, even in the rare instance in which they are justified, are subject to strict judicial control." Martin v. Johns-Manville Corp. 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985), rev'd on other grounds by 515 Pa.. 377 (1987). 40. Punitive damages mgy not be assessed against a defendant whose conduct constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. Martin, 508 Pa. at 172, 494 A.2d at 1097. 41. Reckless indifference to the interests of others has been said to mean that "the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so reat as to make it highly probably that harm would follow." Evans v. Philadelphia Transp Co 418 Pa. 567, 574, 212 A.2d 440, 443 (1965) (emphasis added); see also Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A. 2d 590, 592 (1988) (noting that wanton conduct, as required for imposition of punitive damages, requires a state of mind in which the tortfeasor realizes the danger to the plaintiff and disregards it to such a degree that "there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.") (emphasis added). 42. The allegations against Defendant Dane Clark in 115, even if accepted as true, do not warrant punitive damages where such allegations reflect ordinary negligence. The averment at ¶15(c), "looking down at a map for an extended period of time on a crowded highway while going in excess of the speed limit" sounds in inadvertence, or an error of judgment, but certainly not a "malicious, wanton, reckless, willful, or oppressive" act. 43. In addition, although the allegation that Defendant "permitted his tractor trailer to literally drive on top of the Bentz vehicle" might presuppose a state of mind, it is not one which reflects a willingness to inflict injury, or a conscious indifference to the perpetration of the wrong that otherwise justifies imposition of punitive damages. See ¶15(g). 44. The complaint alleges that Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. "acted in complete disregard of the rights and safety of others," as supported by the fact that "Defendant Barber Trucking failed to provide Defendant Dane Clark with a truck equipped with a GPS system... that would have eliminated the chance that [he] would need to stare at a map." Even if accepted as true for the purpose of evaluating this demurrer, no such duty may be imposed on a motor carrier as to its drivers. The absence of a GPS system is certainly not evidence of a finding of complete disregard of the rights and safety of other that may support a claim for punitive damages. See ¶25, 26. Therefore, these allegations cannot support a basis for punitive damages. WHEREFORE, for the reasons set forth above, Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark respectfully request that this court grant their Preliminary Objections in the nature of a Demurrer and strike the claim for punitive damages in Count Six of the complaint. IV. CONCLUSION For all of the foregoing reasons, Defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark respectfully request that the court enter the attached order striking various allegations raised in % 15, 25, 36 and 37 of the complaint, including all of the claims for punitive damages and dismissing Count Six for failure to state a claim upon which relief may be granted. SILVERMAN BURNS KASM & KRAWITZ BY: JEFFREY A. KRAWITZ, ESQUIRE DANIEL H. MANDEL, ESQUIRE Attorneys for Defendants Date: June 9, 2008 CERTIFICATE OF SERVICE I, Daniel H. Mandel, Esquire, hereby certifies that I did cause a copy of the Defendants' Preliminary Objections to the Complaint in the Nature of a Demurrer and for Insufficient Specificity to be sent first class mail on June 9, 2008 to: Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 SILVERMAN BURNS KASMEN & KRAWITZ BY: L DANIEL H. MAND Attorney for Defendants Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, : IN THE COURT OF COMMON PLEAS OF by THOMAS E. BENTZ, Administrator CUMBERLAND COUNTY, PENNSYLVANIA of THE ESTATE OF LESLIE K. BENTZ, Plaintiff, V. NO. 2007-3895 CIVIL ACTION - LAW BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants. JURY TRIAL DEMANDED COMPLAINT AND NOW, comes thc' Plaintiff, Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz, by and through his attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and avers as follows: 1. The Plaintiff, Thomas E. Bentz, is the Administrator of the Estate of Leslie K. Bentz "deceased". 2. Leslie K. Bentz died on May 19, 2006. 3. Thomas E. Bentz was appointed the Administrator of the Estate of Leslie K. Bentz on June 20, 2006 by the Cumberland County Register of Wills, No. 2006-00547 3. Leslie K. Bentz is survived by her parents Thomas E. Bentz and Dorothy L. Bentz, and her sister Elaine C. Bentz. 4. The Defendant, Barber Trucking, Inc., is a Pennsylvania corporation with an authorized placc of business at 3661 Route 28, North Brookville, Jefferson County, Pennsylvania. 5. The Defendant, Barber Trucking Company, Inc., is a Pennsylvania corporation with an authorized place of business at 3661 Route 28 North, Brookville, Jefferson County, Pennsylvania. . 6. The Defendant -Dane B. Clark is an adult individual residing at 409 Wooddale Drive, Punxsutawney, Jefferson County, Pennsylvania. 7. At all times, Defendant Dane B. Clark was acting as the agent, servant and/or employee of and within the course and scope of his employment/agency with Defendants, Barber Trucking Company, Inc. and Barber Trucking, Inc. 8. On or about May 19, 2006, Plaintiff's decedent, Leslie K. Bentz, was operating her 1999 Chevrolet Geo Prism while stopped in traffic in the right hand westbound lane on SR-581 in Camp Hill Borough, Cumberland County, Pennsylvania. 9. At that time, Defendant Clark was operating a 1999 International tractor trailer, owned by Defendant Barber Trucking, Inc., in the right hand westbound lane on SR-581 in Camp Hill Borough, Cumberland County, Pennsylvania. 10. At that time, the Bentz vehicle was located immediately in front of Defendant Clark's tractor trailer. 11. The Bentz vehicle had come to a complete stop along with six other vehicles in front of her. 12. At the aforesaid time and place, Defendant Dane B. Clark failed to stop the 1999 International tractor, colliding with and running over the vehicle operated by Leslie K. Bentz. COUNTI NEGLIGENCE Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Dane B. Clark 13. The averments of paragraphs 1 through 21 of this Complaint are hereby incorporated by reference. 14. At all time relevant hereto, Defendant Dane B. Clark owed a duty of care in the. operation of the tractor trailer he was driving. 15. The collision which was caused by the negligence, recklessness, carelessness and outrageous reckless indifference of Defendant Dane B. Clark, in that he: (a) Failed to keep his eyes on the traffic ahead; (b) Driving at a speed in excess of the posted speed limit. (c) Looking down at a map for an extended period of time on a crowded L' \ highway while going in .excess of the speed limit. (d) Failed to apply his brakes in time to avoid a collision with the vehicles in front of him; (e) Failed to operate and control his tractor trailer to the extent that he could bring it to a safe stop without colliding with vehicles in front of him; (f) Failed to operate his vehicle in accordance with existing traffic conditions; and (g) Permitted his tractor trailer to literally drive on top of the Bentz vehicle. 16. The collision which was described herein caused the death of Leslie K. Bentz, was the direct and proximate result of the negligence of Dane B. Clark. WHEREFORE, Plaintiff demands judgment against Defendant Dane B. Clark in an amo.mt in excess of the mandatory arbitration limits. , COUNT II VICARIOUS LIABILITY Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc. and Barber Trucking Company, Inc. 18. Paragraphs 1 through 28 of this Complaint are hereby incorporated by reference. 19. At all time relevant hereto, Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc., as owner of the vehicle operated by Defendant Dane B. Clark, owed a duty to ensure that the vehicle was capable of being safely operated on the highways. 20. Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. are, and were, responsible for the actions, and inaction of Defendant Dane B. Clark, the operator of the tractor trailer owned by Barber Trucking, Inc. and Barber Trucking Company, Inc. 21. Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. V negligently entrusted the vehicle which they owned to Defendant Dine B. Clark when they knew or should have known that Defendant Dane B. Clark was not capable of safely operating the vehicle. 17. Defendant's Barber Trucking, Inc., and Barber Trucking Company, Inc., are responsible for the actions of their employee Dane B. Clark while acting within the scope of his employment. WHEREFORE, Plaintiff demands judgment against Defendants in an amount in excess . of the mandatory arbitration limits. COUNT III INDEPENDENT NEGLIGENCE Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. 22. Paragraphs 1 through 29 of this Complaint are hereby incorporated by reference 23. Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. had a duty to others, including Decedent Leslie K. Bentz, to hire only safe, competent and properly trained drivers who are qualified to operate tractor trailers. 24. When Defendant Dane B. Clark was hired, Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. knew or should have known that Defendant Clark was unfit to drive tractor trailers and that his driving posed serious risk of harm to the public safety, including the Decedent. 25. In hiring Defendant Dane B. Clark, Defendants Barber Trucking, Inc. and Barber Trucking Company, Inc. acted in complete disregard of the rights and safety of others, including the Decedent. 26. Defendant Barber Trucking failed to provide Defendant Dane B. Clark with a truck equipped with a GPS system or a portable GPS system that would have eliminated the chance that Defendant Dane B. Clark would need to stare at a map. WHEREFORE, Plaintiff demands judgment against Defendants in an amount in excess of the mandatory arbitration limits. COUNT IV WRONGFUL DEATH Thomas E.::BUntz, as Administrator of the Estate of Leslie K. Bentziv. Barber Trucking, Inc., and Barber Trucking Company, Inc. and Dane B. Clark 27. Paragraphs 1 through 34 of this Complaint are hereby incorporated by reference. 28. Plaintiff, in his capacity as Administrator, Personal Representative, and as Beneficiary, brings this claim for wrongful death against the Defendants pursuant to 42 Pa. C.S.A. § 8301(b) and Pa. R. Civ. P. No. 2202. 29. Plaintiffs decedent, Leslie K. Bentz did not bring any other action during her lifetime and no other action for the death of Leslie K. Bentz has been commenced against the Defendants or any other persons. 30. The Plaintiffs decedent, Leslie K. Bentz was survived by the following statutory beneficiaries. Name Address Relationship Thomas E. Bentz 228 Green Hill Road Father Newville, PA 17241 Dorothy L. Bentz 228 Green Hill Road Mother Newville, PA 17241 31. This civil action is brought to recover, on behalf of the said statutory beneficiaries damages legally available under the said act of assembly. 32. As a direct and proximate cause of the Defendants' aforesaid negligence, Plaintiff suffered and Defendants are liable for the following damages: (a) Funeral expenses for the Decedent, Leslie K. Bentz; (b) Expenses to the Estate relating to the Decedent, Leslie K. Bentz's death; (c) The deprivation and injury as a result of the loss of support, comfort, counsel, aid, association, care, and services of the Decedent, Leslie K. Bentz sustained by Thomas E. Bentz and Dorothy L. Bentz; (d) Such other relief as the Honorable Court deems appropriate in this wrongful death action. WHEREFORE, Plaintiff demands judgment against Defendants for all damages which would be recoverable under the Pennsylvania Wrongful Death Act plus interest and costs. COUNT V SURVIVAL ACTION Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. and Dane B. Clark 33. Paragraphs 1 through 40 of this Complaint are hereby incorporated by reference. 34. In his capacity as Personal Representative of the Estate Leslie K. Bentz, Plaintiff, Thomas E. Bentz brings this survival action pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302 et seg. 35. This survival action is brought to recover all damages legally recoverable by the Estate of Leslie K. Bentz under the Pennsylvania Survival Act. 36. As a direct and proximate cause of the carelessness, negligence, and wanton and reckless misconduct of the Defendants as set forth herein, the Plaintiff's decedent, Leslie K. Bentz, died due to the grievous injuries she sustained. 37. As a direct and proximate cause of the carelessness, negligence, and wanton and reckless misconduct of the Defendants as set forth herein, the Plaintiff's decedent, Leslie K. 13entz, experienced intense fear, pain, suffering and emotional distress prior to tier death. 38. Said action for pain and suffering is compensable and survives the death of Leslie K. Bentz. 39. By reason of the death of Leslie K. Bentz, her Estate has been deprived of her earnings during the remainder of what would have been her life expectancy less the cost of her personal maintenance. 40. As a direct and proximate cause of the Defendants' actions, Leslie K. Bentz suffered and Defendants are liable to Plaintiff for the following damages: (a) Decedent Leslie K. Bentz's pain and suffering between the time of her injuries and the time of death; (b) Decedent Leslie K. Bentz's total estimated future earning power less her estimated cost of personal maintenan:.c; (c) Decedent Leslie K. Bentz's loss of retirement and social security instrument; and (d) Decedent Leslie K. Bentz's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against Defendants for all damages which would be recoverable under the Pennsylvania Survival Act plus interest and costs. COUNT VI PUNITIVE DAMAGES Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking, Inc., and Barber Trucking Company, Inc. and Dane B. Clark 41. Paragraphs 1 through 48 of this Complaint are hereby incorporated by reference. 42. The actions of the Defendants were recklessly indifferent to the rights of Plaintiff and other motorists on the highway and constitute outrageous conduct on their part. WHEREFORE, Plaintiff demands judgment against Defendants for damages in excess of the mandatory arbitration limits, punitive damages, costs, delay damages, and any other relief that the Court deems just and reasonable under the circumstances. Respectfully submittMO IC Hubert X. Gilroy, E i I.D. Number 29943 ` Ten East High S eet Carlisle, PA 17013 (717) 243-3341 Date: Attorneys for Plaintiff VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation- of the _lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Thomas E. Bentz, Administr o e Estate of Leslie K. Bentz I F:1FRM%Lfient%%12328 BentiConrlnint Ink beamdoe C"s ? ? rn t SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff RONALD E. CLARK AND LYNN B CLARK, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B. CLARK, Defendants ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTS, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiffs V. BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B. CLARK, Defendants NO. 07-458 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3895 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED And now, this G' day of June, 2008, 1 hereby certify that a true and correct copy of Plaintiffs Ron and Lynn Clark's Interrogatory to Defendant Dane B. Clark has been served upon the following via U.S. Mail, postage prepaid, addressed to: 6 SHOLLENSERGER & JANUZZI, LLP 2225 MILLENNIUM WAY 1 ENOLA, PA 17025 (717) 728-3200 ! FAX (717) 728.3400 Jeffery A. Krawitz, Esquire Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Jeffrey A. Datz, Esquire Seidel, Weitz, Garfinkle & Datz, LLC 20th Floor 121 South Broad Street Philadelphia, PA 19107-4553 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Phone: 243-3341 Fax: 243-1807 SHOLLENSERGER 6 JANUZZI, LLP 2225 MILLENNIUM WAY ! ENOLA, PA 17025 (717) 728-3200 ! FAX (717) 728-3400 SHOLLENBERGER & JANUZZI, LLP F F:\FILES\Clients\12328 Bentz\12328.I.Stip1/n1m Created: 9120%04 0:06PM Revised: 6/25/08 8:45AM 12328.1 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiff, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-3895 CIVIL ACTION - LAW BARBER TRUCKING, INC., : BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants. JURY TRIAL DEMANDED STIPULATION The parties stipulate and agree as follows: 1. Plaintiff hereby withdraws, without prejudice, all claims for attorney's fees and punitive damages as set forth in the Complaint. 2. Plaintiff hereby withdraws, without prejudice, all allegations of recklessness, outrageous reckless indifference, wanton misconduct, reckless misconduct and gross negligence. 3. The Defendants hereby withdraw the Preliminary Objections to the Complaint, without waiver of these objections in the nature of demurrers and Motions to Strike. r r 1 4. The Defendants shall proceed with filing of an Answer to the Complaint with New Matter within twenty days of the filing of this Stipulation. 5. At the conclusion of discovery, and in the event the Plaintiff has a good faith basis to raise a claim for punitive damages at trial, Plaintiff may file a Motion with the Court requesting that such claims be included in the relief sought. At that time, Defendants can thereafter raise all of their objections as set forth in the Preliminary Objections filed on June 9, 2008. MARTSON LAW OFFICES By Hubert X?Gilroy squire I.D. Num9 43 10 East High S eet Carlisle, PA 17013 (717) 243-3341 Date: June 2008 Attorneys for Plaintiff SILVE,kMAN BURNS KASMEN & KRAWITZ By Sriite 910 Two Penn Center Plaza as Philadelphia, PA 19102 (215) 636-3968 Date: June ?*, 2008 Attorney for Defendants ?-? rv -T:7 0, c _ f?3 ? CJ°a ,?tr7 Cr SILVERMAN BURNS KASMEN & KRAWITZ BY: JEFFREY A. KRAWITZ, ESQUIRE Attorney I.D. No.: 49530 Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 (215) 569-0000 ESTATE OF LESLIE K BENTZ, by THOMAS E. BENTZ, Administrator of the ESTATE OF LESLIE K. BENTZ, Plaintiffs V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC. and DANE B. CLARK Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 07-3895 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER ON BEHALF OF DEFENDANTS BARBER TRUCKING INC., BARBER TRUCKING CO., INC. (INCORRECTLY NAMED AS BARBER TRUCKING COMPANY. INC. AND DANE B. CLARK Defendants Barber Trucking, Inc. (herein `BTI"), Barber Trucking Co., Inc. (incorrectly named as Barber Trucking Company, Inc.) (herein "BTCI") and Dane B. Clark, hereby respond to the allegations of plaintiff s Complaint as follows: 1. Admitted. 2. Admitted. 3. Denied in accordance with Rule 1029(e). 3. Denied in accordance with Rule 1029(e). 4. Admitted. 5. Admitted. 6. Denied in accordance with Rule 1029(e). By way of further response, Dane Clark currently has a residence at 58 Starlite Lane, Punxsutawney, PA 15767. 7. Admitted in part. Denied in part. It is admitted that at all times relevant Dane Clark was acting as an employee of BTI and was in the course and scope of his employment at all times relevant. It is specifically denied that he was an agent or servant of BTI, and further it is specifically denied that he was ever an agent, servant or employee of BTCI. 8. Denied in accordance with Rule 1029(e). 9. Denied in accordance with Rule 1029(e). By way of further response, Dane Clark was operating a 1999 International tractor, along with a 1998 Freuhauf trailer, those vehicles being owned by BTCI. These vehicles were leased to BTI and under the direction, control and auspices of BTI at the time of the incident. 10. Upon information and belief, this is admitted. 11. Denied in accordance with Rule 1029(e). 12. Admitted. COUNTI NEGLIGENCE Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Dane B. Clark 13. Defendants incorporate by reference their answers to paragraphs 1 through 12 of plaintiff's Complaint as if same were set forth fully and at length herein. 14. Denied in accordance with Rule 1029(e). By way of further response, to the extent that the allegations of this paragraph state conclusions of law, no response is required. 15. Denied in accordance with Rule 1029(e). By way of further response, to the extent that the allegations of this paragraph state conclusions of law, no response is required. The allegations of recklessness and outrageous reckless indifference in this paragraph have been withdrawn without prejudice pursuant to Stipulation of counsel filed with the Court on July 15, 2008 and therefore, no response is required or appropriate. It is specifically denied that Dane Clark was driving at any speed in excess of the posted speed limit or that he failed to apply his brakes. All allegations concerning the alleged failures of Dane Clark are denied in accordance with Rule 1029(e) and are denied to the extent they state conclusions of law, to which no responses are required. 16. Admitted in part. Denied in part. It is admitted that as a result of the accident Leslie K. Bentz died. The remaining allegations of this paragraph are denied in accordance with Rule 1029(e) and are also denied as conclusions of law to which no response is required. WHEREFORE, Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark hereby demand judgment in their favor and against plaintiff, together with the costs of suit, including reasonable attorney's fees and other relief as may be just and reasonable. COUNT II VICARIOUS LIABILITY Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking Inc. and Barber Trucking Co.. Inc. 18. Defendants incorporate by reference their answers to paragraphs 1 through 16 of plaintiffs' Complaint as if same were set forth fully and at length herein. 19. Admitted in part. Denied in part. It is specifically denied that at any time relevant did defendant BTI own the tractor/trailer tandem which was being operated by Dane Clark. At all times relevant, the tractor and the trailer were owned by BTCI, but in accordance with the Federal Motor Carrier Regulations were under lease to BTI for purposes of their interstate commercial transportation business. Therefore it is specifically denied that any vehicle operated by Dane Clark was owned by BTI. To the extent that the allegations of this paragraph state conclusions of law, no response is required. 20. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. It is specifically denied that defendant BTCI was responsible for any actions or inactions of defendant Clark in that it was only a lessor of vehicles, and at all times relevant the vehicles were under the direction and control of BTI as lessee of these commercial vehicles. At no time relevant were the vehicles jointly owned by BTI and BTCI, and such allegations are without basis in fact or law. 21. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. It is specifically denied that Clark was not capable of safely operating a commercial motor vehicle, and in fact at all times relevant was fully licensed and certified to operate such vehicles. BTCI had no involvement in assigning vehicles to drivers or any involvement in BTI's interstate commercial trucking operation. 17. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. At no time was Dane Clark ever an employee of BTCI and such allegations are without basis in fact or law. It is admitted that at all times relevant, Clark was an employee and acting within the scope of his employment with BTI. WHEREFORE, Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark hereby demand judgment in their favor and against plaintiff, together with the costs of suit, including reasonable attorney's fees and other relief as may be just and reasonable. COUNT II INDEPENDENT NEGLIGENCE Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking Inc. and Barber Trucking Co., Inc. 22. Defendants incorporate by reference their answers to paragraphs 1 through 21, [17] [incorrectly identified in plaintiff's Complaint as paragraph 29] of plaintiffs' Complaint as if same were set forth fully and at length herein. 23. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. By way of further response, it is specifically denied that BTI did anything other than hire safe, competent and properly trained drivers who were qualified to operate tractor trailers. Such allegations to the contrary are without basis in fact or law. By way of further response, at no time did defendant BTCI hire drivers, in that it was only a lessor of commercial vehicles and was not a motor carrier. 24. Denied in accordance with 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. It is specifically denied that at any time did defendant BTCI hire any drivers, let alone Clark, since it was only a lessor of commercial vehicles, not a motor carrier. It is specifically denied that Clark was unfit to drive commercial motor vehicles or that his driving posed serious risk of harm to the public safety, and such allegations are without basis of fact or law given that at all times relevant Clark was a certified and licensed commercial motor vehicle operator. 25. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. It is specifically denied that any time relevant did defendant BTCI hire defendant Clark. BTCI was solely a lessor of commercial vehicles and was not a motor carrier and was not Clark's employer. Such allegation are without basis in fact or law. To the extent the allegations of this paragraph are suggestive of a basis for recklessness, all such allegations have been withdrawn without prejudice by way of Stipulation filed by counsel dated July 15, 2008. 26. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. By way of further response, the allegations of this paragraph are unclear as to which Barber entity is being referenced, and to the extent the general reference to "Barber Trucking" is meant to refer to both of the corporate defendants, it is specifically denied that BTCI had any involvement in providing equipment to a driver such as Dane Clark given that it was only a lessor of vehicles, and not a motor carrier. WHEREFORE, Barber Trucking Inc., Barber Trucking Co., Inc. and Dane B. Clark hereby demand judgment in their favor and against plaintiff, together with the costs of suit, including reasonable attorney's fees and other relief as may be just and reasonable. COUNT IV WRONGFUL DEATH Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking Inc. and Barber Trucking Co.. Inc. and Dane B. Clark 27. Defendants incorporate by reference their answers to paragraphs 1 through 26 of plaintiffs' Complaint as if same were set forth fully and at length herein. 28. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. 29. Denied in accordance with Rule 1029(e). 30. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. 31. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraphs state conclusions of law, no response is required. 32. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. WHEREFORE, Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark hereby demand judgment in their favor and against plaintiff, together with the costs of suit, including reasonable attorney's fees and other relief as may be just and reasonable. COUNT V SURVIVAL ACTION Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking Inc., Barber Trucking Co., Inc. and Dane B. Clark 33. Defendants incorporate by reference their answers to paragraphs 1 through 32 of plaintiffs Complaint as if same were set forth fully and at length herein. 34. Admitted. 35. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. 36. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. By way of further response, the allegations concerning wanton and reckless misconduct have been withdrawn without prejudice pursuant to Stipulation of counsel dated and filed on July 15, 2008 with the Court and therefore no response is required in that regard. 37. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. By way of further response, the allegations concerning wanton and reckless misconduct have been withdrawn without prejudice pursuant to Stipulation of counsel dated and filed on July 15, 2008 with the Court and therefore no response is required in that regard. 38. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. 39. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. 40. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. WHEREFORE, Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark hereby demand judgment in their favor and against plaintiff, together with the costs of suit, including reasonable attorney's fees and other relief as may be just and reasonable. COUNT VI PUNITIVE DAMAGES Thomas E. Bentz, as Administrator of the Estate of Leslie K. Bentz v. Barber Trucking Inc.. Barber Trucking Co.. Inc. and Dane B. Clark 41. Defendants incorporate by reference their answers to paragraphs 1 through 40 of plaintiff's Complaint as if same were set forth fully and at length herein. 42. Denied in accordance with Rule 1029(e). To the extent that the allegations of this paragraph state conclusions of law, no response is required. By way of further answer, the allegations of this paragraph have been withdrawn without prejudice pursuant to Stipulation of counsel dated and filed on July 15, 2008 with the Court and therefore, no response is required. WHEREFORE, Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark hereby demand judgment in their favor and against plaintiff, together with the costs of suit, including reasonable attorney's fees and other relief as may be just and reasonable. NEW MATTER 43. Plaintiffs' complaint fails to state a claim upon which relief may be granted. 44. Plaintiffs' damages occurred as a result of plaintiffs' assumption of the risk. 45. Plaintiffs' claims are barred by the applicable Statute of Limitations. 46. Plaintiffs' claims are barred by the applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §1701, et seq. 47. Plaintiffs' claims are barred and/or limited by the applicable provisions of the Pennsylvania Comparative Negligence Act. 48. If plaintiffs sustained damages as claimed in the complaint, the same of which is specifically denied, those damages were caused in whole or in part by plaintiffs' own negligence. 49. If plaintiffs sustained the damages claimed in the complaint, the same of which is specifically denied, those damages were caused in whole or in part by conditions over which answering defendants had no control. 50. The accident and damages as alleged herein occurred as a result of the negligence, carelessness, recklessness and wanton and willful disregard for the safety of others on the part of third-parties. 51. Answering defendants breached no duty owed to plaintiffs. 52. Plaintiffs' claims are barred and/or limited by the Doctrines of Res Judicata and/or Estoppel. 53. Plaintiffs' claims are barred and/or limited by the Medical Cost Containment provisions of the Pennsylvania Code and Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §1701, et seq. 54. Defendants, at all times, acted in accordance with, and did not violate, any applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law and/or Pennsylvania Motor Vehicle Code. 55. Defendants at all times complied with all applicable provisions of the FMCSR and other applicable DOT regulations. 56. Plaintiffs' claims are barred and/or limited for failure to join necessary and/or indispensable parties. WHEREFORE, answering defendants demand judgment in their favor and against plaintiff together with the costs of defense and such other and further relief as the court may deem just and equitable. Respectfully submitted, SILVERMAN BURNS KASMEN & KRAWITZ Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark VERIFICATION I, JEFFREY A. KRAWITZ, ESQUIRE, being duly sworn according to law, deposes and says that he is attorney for defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark and is authorized to submit this Verification and that the facts set forth in the foregoing Answer to plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I understand that the statements therein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark Dated: G 362\072\pleads\bentzsnswer.090808. WPD £,,,? r?a r..? L -? " C... c?_.? Z t . ca r;'? ? } ? J ? -- Ci'1 . ', ..? ? f ,.7 ' i .p.? .. .. ?_..? ?: 5 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Encla, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number (717) 728-3400 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator, of the 'Estate of LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2007-3895 V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and CIVIL ACTION - LAW JURY TRIAL DEMANDED DANE B. CLARK, Defendants EMERGENCY PETITION IN EQUITY TO INTERVENE AND FOR TEMPORARY RESTRAINING ORDER TO STAY CONSIDERATION OF APPROVAL OF SETTLEMENT 1. The above captioned action arises out of a tractor trailer/automobile collision where Defendant, Dane B. Clark, while within the scope and course of his employment with Defendant, Barber Trucking, Inc., failed to observe stopped traffic on State Route 581 in Camp Hill, Cumberland County, and caused a muitivehicle collision that resulted in the death of Leslie Bentz, whose cstate is the Plaintiff in this action, as well as serious bodily injuries to Ronald E. Clark., a Plaintiff in an action docketed in this Honorable Court at No. 07-458 2. Petitioner, Ronald E. Clark, is fifty-eight (58) years old and has three (3) dependents. As a result of the serious injuries he sustained in the crash, Petitioner, Ronald E. Clark, has been permanently disabled frorn employment with Norfolk Southern Railroad where he made approximately $60,000.00 per year prior to the crash. 3. Petitioner, Ronald E. Clark has been advised by counsel for the Defendants that the third party insurance coverage available to all injured persons in this crash is limited to an aggregate One Million Dollars ($1,000,000.00), which is provided for by a policy of insurance issued to Defendant, Barber Trucking, Inc.. Defendant in Petitioner Clark's case, Barber Trucking Co., Inc., has filed a motion for summary judgment alleging they are simply the lessee of the tractor-trailer involved and are therefore immune from liability under applicable federal law. 4. Petitioner, Ronald E. Clark further believes that Defendant, Barber Trucking, Inc. and Dane B. Clark do not have substantial assets upon which Petitioner could execute a judgment. Petitioner has but $45,000 of applicable underinsured motorist coverage. 5. Without notifying the Petitioner and even though there is a mediation scheduled for December 18, 2008 to globally settle this matter, the Estate of Leslie Bentz and Defendants have reached a tentative settlement agreement wherein Defendants would pay the Estate Six Hundred Thousand Dollars ($600,000.000) to resolve the Estate's wrongful death and survival claims against all Defendants. 6. Petitioners, Ronald E. Clark and Lynn B. Clark, believe and therefore aver that if this Honorable Court approves the aforementioned 2 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 settlement, they will be prejudiced with respect to their right to recover for the damages they suffered as a result of the crash. 7. Petitioners, Ronald E. Clark and Lynn B. Clark, further believe and aver that they are entitled to intervene in this case with respect to the approval of settlement. Petitioners seek to be heard on this issue and intend to request that a preliminary injunction be granted with respect to this Court's approval of the settlement of the above captioned action. 8. Petitioners, Ronald E. Clark and Lynn B. Clark, further believe and aver that there is no remedy at law that will provide the relief sought by this petition. 9. Upon a Motion for Discovery Conference and following the conference, the Honorable J. Wesley Oler, Jr. issued an order dated April 25, 2008. This is the only ruling by any judge that the Petitioners are aware of with respect to the above captioned action. WHEREFORE, Petitioner, Ronald E. Clark and Lynn B. Clark, respectfully request that this Honorable Court issue a Temporary Restraining Order staying this Court's consideration of any petition to approve the settlement of the above captioned action pending a hearing and further Order of this Honorable Court. 3 Shollenberger & Januai, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 Date: October 29, 2008 Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 Attorneys for Plaintiff SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator, of the Estate of LESLIE K. BENTZ, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-3895 V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED IMP AND NOW this 29th day of October, 2008, 1 hereby certify that I have served the following Reply to New Matter on the following via U.S. mail, postage prepaid: Jeffery A. Krawitz, Esquire Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Jeffrey Datz, Esquire Seidel, Weitz, Garfinkle & Datz, LLC 20th Floor 121 South Broad Street Philadelphia, PA 19107-4553 SHOLLENBERGER & JANUZZI, LLP Attorneys for Plaintiff By, evA Russell Wert, Esq re Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-729-3200 Fax: 717-728-3400 " C ? C...- r? o' ,t ?". ` . ?-? .^-t -c7 ?, ? r ?,. y N f.? ? .. b ?4.. t ? ? ?! ? ? r? ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of the Estate of LESLIE K. BENTZ, Plaintiff V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DIANE B. CLARK, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3895 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of October, 2008, upon consideration of the "Emergency Petition in Equity To Intervene and for Temporary Restraining Order To Stay Consideration of Approval of Settlement" filed by Ronald E. Clark, a Rule is hereby issued upon all parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of this order. SERVICE OF THIS RULE upon the Respondents shall be the responsibility of Petitioner's counsel. BY THE COURT, J/1 V y , esle Oler J J. ` Hubert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff _.,effrey A. Krawitz, Esq. Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Attorney for Defendant Barber Trucking Company, Inc. Timothy A. Shollenberger, Esq. 2225 Millennium Way Enola, PA 17025 Attorney for Petitioners 0"?, ?'?-aLf r"Lr-O ...,x6urtesy Copy: Jeffrey Datz, Esq. Seidel, Weitz, Garfinkle & Datz, LLC 20`h Floor 121 South Broad Street Philadelphia, PA 19107-4553 rc (20f c e g /Ytp- t Lf-CL ropo/o8 ? _ - -f nib CA) - Q rra F:\FILES\Clients\12328 Bentz\I 2328.Lresl.do6inas Revised: 11/11/08 14:54PM 12328.1 Hubert X. Gilroy, Esquire I.D. No. 29943 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS OF by THOMAS E. BENTZ, Administrator CUMBERLAND COUNTY, PENNSYLVANIA of THE ESTATE OF LESLIE K. BENTZ, Plaintiff, V. NO. 2007-3895 CIVIL ACTION - LAW BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants. JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S RESPONSE TO EMERGENCY PETITION OF RONALD E. CLARK AND LYNN B. CLARK TO INTERVENE AND FOR A TEMPORARY RESTRAINING ORDER AND NOW, comes Plaintiff, Estate of Leslie K. Bentz, by Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz ("Bentz"), by and through its counsel, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby responds to Ronald E. Clark and Lynn B. Clark's Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of Settlement as follows: 1. Denied as to the quantification or qualification of any injuries sustained by Ronald Clark. The remaining averments are admitted. 2. After reasonable investigation, Bentz is without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 3. Admitted that there is a One Million Dollar ($1,000,000.00) insurance policy, but it is a combined single limit policy and it is believed that property damage claims and several relatively minor bodily injury claims have already been paid from the coverage limit. Furthermore, any motions filed in the Clark case are irrelevant to the Bentz Estate's settlement of its claim, which is final, subject only to Court approval. As to the remaining averments of this paragraph, Bentz is without knowledge or information sufficient to form a belief as to the truth or falsity. 4. Bentz is unaware or has no basis to know what Ronald E. Clark believes regarding the assets of Barber Trucking, Inc., and Dane B. Clark. Furthermore, Ronald E. Clark's beliefs as to the assets of Barber Trucking, Inc., or Dane B. Clark are irrelevant to whether Bentz is entitled to settle its case. In addition, the amount of underinsured motorist coverage which Ronald E. Clark and Lynn B. Clark chose to purchase to protect themselves is irrelevant. Their choice to purchase "but $45,000 of applicable underinsured motorist coverage" has no bearing on the ability of Bentz to settle its claims against Barber Trucking, Inc. Furthermore, Bentz understands that Defendant Barber Trucking, Inc., is an ongoing business operation and has remained open for business since the accident in question and, presumably, possesses assets. Additionally, Bentz understands that Barber Trucking, Inc., retained its own private corporate counsel, separate from Attorney Krawitz, who was retained by the insurance carrier. Bentz believes Barber Trucking, Inc., after consulting with private corporate counsel, approved the $600,000.00 settlement between Bentz and Barber Trucking, Inc. Petitioners have no standing to second guess Barber Trucking, Inc., its insurer and two lawyers on its behalf. 5. Denied as stated. To the contrary, although there were discussions about mediating the case with the Honorable Thomas Raup, as of the date of the filing of this response, no mediation has been scheduled, as evidenced by the correspondence from Judge Raup's scheduling clerk, which is attached hereto as Exhibit "A." It is further denied that the Bentz's settlement is "tentative." Bentz, Barber Trucking and Barber Trucking's insurer have a binding agreement to settle, subject only to approval of this Court, since there are wrongful death and survival claims. Furthermore, the Bentz Estate would have no duty, obligation, or reason to notify the Petitioners that they have settled their claim against Barber Trucking, Inc., for $600,000.00. 6. Denied as stated. These allegations contained in Paragraph 6 have no basis whatsoever in fact or in the law of Pennsylvania. The Bentz Estate has a binding agreement to settle its claims against Barber Trucking, Inc., and Dane B. Clark, and Petitioners are without standing and without any legal basis whatsoever to interfere with that contractual relationship. 7. Denied. To the contrary, Pa. R.C.P. 2327 specifically limits who may intervene in a pending action. Simply put, the Petitioners do not even vaguely allege facts which would fall into any of the four subcategories cited in the rule. Petitioners failure to even remotely conform to this rule is grounds that the Petition be stricken without further action by the Court. See Larock v. Sugar Loaf Township Zoning Hearing Board, 740 A.2d 308 (Pa. Commwlth. 1999). Additionally, Petitioners suggesting that they will "request that a preliminary injunction be granted" have no basis in law or fact and, in the event the court would entertain such an argument, the Petitioners would be required to post a bond or financial security to secure Bentz's settlement of $600,000.00, Bentz's recovery of additional underinsured motorist coverage, which is being delayed as the result of the Petitioners action, and the investment earnings lost by Bentz as the result of the delay in obtaining a settlement. See Pa. R.C.P. 1531(b). 8. Denied. To the contrary, Petitioners' claims against the Defendant are not affected by the settlement with the Bentz Estate. In fact, Bentz may have been entitled to a settlement greater than $600,000.00, especially considering that they had produced a vocational report that showed a loss of earning capacity of $2.06 million. Additionally, Petitioners have an adequate remedy at law in that they may pursue a valid claim against Barber Trucking, Inc., and its insurance carrier, and may then collect whatever damages, if any, that may be awarded to them. 9. Admitted. WHEREFORE, Plaintiff, Estate of Leslie K. Bentz, by Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz, hereby requests that this Court summarily deny the "Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of Settlement." MARTSON LAW OFFICES By v0 &Z - ??/ U Hubert X. Gilroy, Esquire I.D. No. 29943 George B. Faller, Jr., Esq j I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: November 12, 2008 Attorneys for Plaintiff A ? ? RR V-LfD PAPER CLARLE Glacier Pagel of 3 Shelly R. Brooks From: Suzanne McMaster [SMcMaster@ADROPTIONS.com] Sent: Thursday, October 30, 2008 11:10 AM To: Shelly R. Brooks Subject: RE: Estate of Leslie Benz, et al. v. Barber Trucking, et al. Judge Raup does not have this on his calendar for December 18, 2008. Suzanne McMaster .4DR Options, Inc. 2001 Market Street, Suite 1100 Philadelphia, PR 19103 215-564-1775 215-564-1822 1-800-364-6098 wwMadropt_ions. com From: Shelly R. Brooks [mailto:sbrooks@martsonlaw.com] Sent: Thursday, October 30, 2008 11:03 AM To: Suzanne McMaster Subject: FW: Estate of Leslie Benz, et al. v. Barber Trucking, et al. An you respond to this email stating that there is NOTHING scheduled for December 18 in this matter She'uy 72. 3rOO4 Paralegal for Hubert X. Gilroy, Esquire Martson Deardorff Williams Otto Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 (717) 243-3341 Phone (717) 243-1807 Fax Electronic Mail "sb.r.ooks..@m.a.Tt,s,o,nlaw.com www.martsonlaw.com 11/11/2008 Exhibit "A" CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Plaintiffs Response to Petition of Ronald E. Clark and Lynn B. Clark to Intervene and for a Temporary Restraining Order was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jeffrey A. Krawitz, Esquire SILVERMAN & KRAWITZ Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 MARTSON LAW OFFICES By: L? Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: November 12, 2008 ????, ? .._ .; .,,,? ?ti to SILVERMAN BURNS KASMEN & KRAWITZ BY: JEFFREY A. KRAWITZ, ESQUIRE Attorney I.D. No.: 49530 Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 (215) 569-0000 ESTATE OF LESLIE K BENTZ, by THOMAS E. BENTZ, Administrator of the ESTATE OF LESLIE K. BENTZ, Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC. and DANE B. CLARK Defendants. NO. 07-3895 CIVIL ACTION - LAW JURY TRIAL DEMANDED RESPONSE ON BEHALF OF DEFENDANTS BARBER TRUCKING, INC., BARBER TRUCKING CO., INC. AND DANE B. CLARK TO THE EMERGENCY PETITION IN EQUITY TO INTERVENE AND FOR TEMPORARY RESTRAINING ORDER TO STAY CONSIDERATION OF APPROVAL OF A SETTLEMENT ON BEHALF OF RONALD E. CLARK Defendants, Barber Trucking, Inc. ("BTI"), Barber Trucking Co., Inc. ("BTCI") and Dane B. Clark, by and through their counsel, Silverman Burns Kasmen & Krawitz, hereby respond to the Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of a Settlement as follows: 1. Admitted in part. Denied in part. The facts recited with regard to an incident which occurred on May 19, 2006 are accurate relative to Dane Clark's employment and Dane Clark being within the scope and course of his employment with BTI at the time of the accident. It is also admitted that as a result of the accident, Leslie Bentz died. As to the quantification or qualification of injuries sustained by Ronald Clark, the 1362\072\pleads\responsepetition. 110408. WPD allegations/averments are denied. Damages and expert discovery relative to Ronald Clark's claims are ongoing. 2. Admitted in part. Denied in part. It is admitted that Ronald Clark is approximately 58 years old and has dependents. It is deemed that as a result of alleged injuries sustained that he has become disabled from his employment with Norfolk Southern Railroad. It is specifically denied that the injuries from this incident are exclusively the reason why Mr. Clark is not returning to his employment with Norfolk Southern, and that is borne out by Long Term Disability Applications signed by and submitted by Ronald Clark concerning very serious unrelated medical/health conditions. What, if any, net wage loss exists relative to the May 19, 2006 incident is the subject of ongoing discovery, and is irrelevant to the resolution/settlement-in-principal reached with the Estate. 3. Admitted in part. Denied in part. It is admitted that a Motion for Summary Judgment has been filed on behalf of BTCI. However, the Motion for Summary Judgment focuses on the fact that BTCI is a lessor of commercial motor vehicles only, and is not a certified interstate motor carrier. It is the certified motor carrier, BTI, under whose auspices, dispatch and control the tractor trailer was being operated at the time of the incident. It is admitted that based on the applicable Lease Agreement as between BTI and BTCI, BTI carried responsibility under the Federal Motor Carrier Regulations and scheme to provide for public liability insurance. Given that this case is a "driver error" case, there is no exposure on the claims to the lessor of the tractor and trailer. By way of further response, the insurance coverage available is not an aggregate, but is a Combined Single Limit policy of $1 Million, i.e. single limit to satisfy all claims whether they be for property damage or personal injury. OCS\3 l 362\072\pleads\responsepetition. 110408. WPD 4. Denied. Ronald Clark has set out averments about the assets of Dane B. Clark and BTI for which counsel has no detailed information given that financial discovery has not occurred and cannot occur at this juncture pursuant to prevailing Pennsylvania law. As far as any underinsured motorist (UIM) benefits available to Ronald Clark, defendants have no information in this regard independent of what is stated in the Petition. 5. Admitted in part. Denied in part. It is admitted that BTI and Dane Clark have a settlement with the Estate of Leslie Bentz in the amount of $600,000 in order to fully resolve the Estate's Wrongful Death and Survival Claims. It is critical that the Court understand that this resolution was reached given the policy limits, and given the fact that the Estate was projecting boardable economic losses of approximately $2.06 Million and given the circumstances of the accident which led to a concession on liability by Dane Clark and BTI. Defendants further state that there was no obligation to "notify" other plaintiffs of ongoing negotiations when, on a minimum two occasions, the defendants tendered their available policy limits to the three plaintiffs, i.e. Estate of Leslie Bentz, Ronald E. Clark and Arunas Stungarys and Elizabeth Zeitner (plaintiffs in a related action filed in the United States District Court for the Middle District of Pennsylvania pursuant to caption number 4:08-cv-00169.) There was a tender of the available policy limits as early as May, 2008 for the plaintiffs to mediate a resolution on their own without the defendants. It is also defendants' understanding that this proposal was rejected and rejected primarily by the Clarks. It is further noted that there is no Mediation currently scheduled for December 18, 2008. Although the parties have agreed to mediate the case with the Honorable Thomas C. Raup, dates in December were proposed, but Judge Raup's office F-\WPC 71DOCS\31362\0721pleads\responsepetition.110408.WPD communicated to the undersigned that the dates proposed in December were not good for Mr. Shollenberger, and hence, additional dates in February, 2009 have been proposed. As of the date of filing of this Response, no new date for the Mediation has been set. 6. Denied. The allegations/averments of this paragraph state conclusions of law and are without basis in fact. It is specifically denied that the resolution with the Estate and pending resolution with plaintiffs Stungarys and Zeitner in any way would prejudice Ronald and Lynn Clark. Even at that juncture, there are funds remaining on the policy. Candidly the first time that the defendants received a "demand" or a "settlement figure" from counsel for Ronald and Lynn Clark was on Wednesday, October 29, 2008 following notification of the agreement in principal reached with the Estate. Why Ronald and Lynn Clark rejected proceeding to a Mediation amongst the plaintiffs after the available policy limits were tendered on multiple occasions is not something defendants can elaborate upon. 7. Denied. It is specifically denied that Ronald and Lynn Clark are entitled to intervene with regard to the resolution reached with the Estate of Leslie Bentz for the sole purpose of staying any approval process. Pursuant to prevailing Pennsylvania law, intervention must be based on a "legally enforceable interest" in an action. See, Pa.R.C.P. §2327(4). This Rule of Pennsylvania Procedure sets out very specifically whether a person or persons not a party to a certain action is/are permitted to intervene. It is submitted that Ronald and Lynn Clark do not meet any of the requirements under Pa.R.C.P. §2327 in that regard. A mere general interest in the litigation or an indirect economic interest or motive with respect to the litigation does not constitute a legally enforceable interest and is thus not a sufficient basis for intervention. See generally Pennsylvania R. Co. v. Hughart, 222 A.2d 736, 738 (Pa. 1966); Bank of America v. McCauley, 23 Pa. D & C.2d 362, 364 (C.P. OCS\31362\072\pleads\iesponsepetition. 110408. WPD Allegheny County 196 1). Typically, alegally enforceable interest is characterized as a "person having title to property which is the subject of the litigation," provided that a ruling in that litigation will affect that person's rights with respect to the property, among others.` Bily v. Board of Property Assessment, 44 A.2d 250, 251 (Pa. 1945). The fact that a resolution reached affects the amount of available third-party insurance proceeds to one of multiple claimants is not a sufficient basis to permit intervention to stall completion of the settlement process and ultimate resolution of the Estate's Wrongful Death and Survival claims. Furthermore, pursuant to Pa.R.C.P. §2329, upon the filing of a Petition, the Court can refuse the request for intervention if the interests of the Petitioner are already adequately represented. Given that Ronald and Lynn Clark filed their own claims with the Cumberland County Court of Common Pleas pursuant to Docket No. 07-458, their interests are "protected". Ultimately if the case proceeds to trial and there is a verdict that goes beyond the available insurance policy limits, execution on any verdict or judgment may or may not lead to 100% realization of the judgment. That is a risk that all litigants take when filing claims particularly when there is not unlimited insurance coverage. Furthermore, to allow intervention at this point by the Clarks would certainly unduly delay and prejudice the 'The following are examples of traditionally recognized legally enforceable interests in property sufficient for intervention by the Courts, and in sharp contrast to Petitioner's allegations: Mengel v. New Tripoli Nat Bank, 40 A.2d 859 (Pa. Super. 1945) (holder of a senior judgment lien in an ejectment action instituted by the owner of the land challenging the validity of a sheriff's sale); First Nat. Bank of Scranton v Jermyn, 62 Pa. D. & C. 474 (C.P. Lackawanna County 1948) (a junior attaching creditor in an attachment execution proceeding); Stroud v. Hamer, 81 Pa. D. & C. 233 (C.P. Montgomery County 1953) (an equitable owner of land in an action to quiet title); First Nat. Bank v. Rodgers, 44 Pa. D. & C.2d 106 (C.P. Westmoreland County 1968)(heirs of an incapacitated person whose guardian seeks to set aside a deed). F'\WPC T\DOCS\31362\072\pleads\responsepetition.I10408.WPD adjudication of rights of the Estate of Leslie K. Bentz in bringing the resolution of the Estate's claims to fruition. 8. Denied. This averment states conclusions of law to which no response is required. Ronald and Lynn Clarks' claims against the defendants are not affected and can proceed regardless of the amount of available insurance proceeds given that the claims are against BTI, BTCI (for the time being) and Dane Clark, and not against BTI's insurer. 9. Admitted. WHEREFORE, defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark request that this Honorable Court deny the Petition for Temporary Restraining Order and staying of any consideration of a Motion to approve the settlement of the claims asserted on behalf of the Estate of Leslie K. Bentz. Respectfully, SILVERMAN BURNS KASMEN & KRAWITZ rrr Y A.`K WI Attorns for Defendants Barber Trucking, Inc., Barber Truc o., Inc. and Dane B. Clark 1362\072\pleads\responsepetition. 110408. WPD VERIFICATION I, JEFFREY A. KRAWITZ, ESQUIRE, being duly sworn according to law, deposes and says that he is attorney for defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark and is authorized to submit this Verification and that the facts set forth in the foregoing Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of a Settlement are true and correct to the best of my knowledge, information and belief. I understand that the statements therein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Dated: I ? 1 -z 0 Barber Trucking, Inc., Barber T Inc. and Dane B. Clark 1362\072\pl eads\responsepeti ti on.1 10408. W PD CERTIFICATE OF SERVICE JEFFREY A. KRAWITZ, ESQUIRE, hereby certifies that he did cause a copy of Response of defendants Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark to the Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of a Settlement on behalf of Ronald E. Clark to be sent first class mail on November 12, 2008 to: Timothy Shollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 VERMAN BURNS KASMEN & KRAWITZ Att(Trney for Defendants\,---`? Barber Trucking, Inc., Barber Trucking Co., Inc. and Dane B. Clark CIO l l Lr'. y ? ti' 7 F. rt ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of the Estate of LESLIE K. BENTZ, Plaintiff V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DIANE B. CLARK, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3995 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of November, 2008, upon consideration of the "Emergency Petition in Equity To Intervene and for Temporary Restraining Order To Stay Consideration of Approval of Settlement," and of Plaintiff's Response to Emergency Petition of Ronald E. Clark and Lynn B. Clark To Intervene and for a Temporary Restraining Order, a hearing is scheduled for Tuesday, January 6, 2009, at 10:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J jWesley Oje , Jr., . Hubert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff ; '. { v O Jeffrey A. Krawitz, Esq. Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Attorney for Defendant Barber Trucking Company, Inc Timothy A. Shollenberger, Esq. 2225 Millennium Way Enola, PA 17025 Attorney for Petitioners :rc A ?• 12328.LsuppRmp.doomm Revised: 12/29/08 I6:19pm 12328.1 Hubert X. Gilroy, Esquire I.D. No. 29943 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants. NO. 2007-3895 CIVIL ACTION - LAW PLAINTIFF'S SUPPLEMENTAL RESPONSE TO EMERGENCY PETITION OF RONALD E. CLARK AND LYNN B. CLARK TO INTERVENE AND FOR A TEMPORARY RESTRAINING ORDER AND NOW, comes Plaintiff, Estate of Leslie K. Bentz, by Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz ("Bentz"), by and through its counsel, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby files this Supplemental Response to Ronald E. Clark and Lynn B. Clark's Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of Settlement as follows: I. In addition to the allegations set forth by the Plaintiff in Plaintiff's original response to the Emergency Petition of Ronald E. Clark and Lynn B. Clark to Intervene and for a Temporary Restraining Order, the Plaintiff sets forth the following additional information: A. Plaintiff and Defendants determined that Court Approval of a settlement between Plaintiff and Defendants was not required in this case. B. Plaintiff and Defendants have settled this case by virtue of a contractual Release Agreement (Release) between the parties. C. In addition to other provisions, the Release required Plaintiff to mark the above captioned action settled and discontinued as part of the Plaintiffs contractual obligations to the Defendants. D. After the filing of this Supplemental Response, Plaintiff will be filing a Praecipe to discontinue the above captioned action. WHEREFORE, Plaintiff, Estate of Leslie K. Bentz, by Thomas E. Bentz, Administrator of the Estate of Leslie K. Bentz, hereby requests that this Court dismiss and deny the "Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of Settlement." MARTSON LAW OFFICES Dated: December M , 2008 By "ZiA (V / Hubert X. Gilroy, Esgi I.D. No. 29943 George B. Faller, Jr., F I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Shelly R. Brooks, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Plaintiffs Response to Petition of Ronald E. Clark and Lynn B. Clark to Intervene and for a Temporary Restraining Order was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jeffrey A. Krawitz, Esquire SILVERMAN & KRAWITZ Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 MARTSON LAW OFFICES By: oks S y R. ;,h Te East St reet Carlisle, 7013 (717) 243-3341 Dated: December O, 2008 1 ???? _ .y n"3 ?,f ?.a) t'";.; - ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of the Estate of LESLIE K. BENTZ, Plaintiff v BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DIANE B. CLARK, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3895 CIVIL TERM ORDER OF COURT AND NOW, this 30`" day of December, 2008, upon consideration of Plaintiff's Supplemental Response to Emergency Petition of Ronald E. Clark and Lynn B. Clark To Intervene and for a Temporary Restraining Order and upon consideration of the letter from Hubert X. Gilroy, Esq., dated December 30, 2008, a Rule is hereby issued upon the Intervenors to show cause why the hearing scheduled for January 6, 2009, should not be cancelled. RULE RETURNABLE on Monday, January 5, 2009, by 12:00 noon. BY THE COURT, ,J. esley Olen J. A r . iL! liv ..s J iiU i1a34 .. .. JD` 11_ Hubert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Jeffrey A. Krawitz, Esq. Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Attorney for Defendant Barber Trucking Company, Inc. Timothy A. Shollenberger, Esq. 2225 Millennium Way Enola, PA 17025 Attorney for Petitioners :rc F:\FILES\C6ents\12328 Bentz\ 12328. I.Pra5/nlm Created: 9/20/04 0:06PM Revised: 12/29/08 4:20PM 12328.1 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS OF by THOMAS E. BENTZ, Administrator CUMBERLAND COUNTY, PENNSYLVANIA of THE ESTATE OF LESLIE K. BENTZ, Plaintiff, V. NO. 2007-3895 CIVIL ACTION - LAW BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants. PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: The Plaintiff in the above matter hereby requests the Prothonotary to mark the above captioned action as settled, discontinued and ended. MARTSON LAW OFFICES I By Hubert X. Gilroy, -E I.D. Number 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: December 36 , 2008 Attorneys for Plaintiff r^-, y ?.?? :Y ?` ?:7 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiffs ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTS, Administrator of THE ESTATE OF LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B. CLARK, NO. 07-3895 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants ANSWER TO RULE RETURN,Af3LE' ISSUED UPON THE INTERVENORS TO SHOW CAUSE WHY THE HEARING' SCHEDULEQ EOWJANUARY 6, 2009 SHOULD NOT BE CANCELLED AND NOW, come the Petitioners/Intervenors, Ronald and Lynn Clark and do respectfully represent the following in response to the Order of the Honorable Judge J. Wesley Oler to show cause why the hearing of January 6, 2009 should not be cancelled: The Petitioners/Intervenors believe and, therefore, aver that the hearing should not be cancelled for the following reasons: (a) Any settlement of the claim of the Estate of Leslie Bentz is subject to court approval. See 20 Pa. C.S.A. Section 3323 and In Re Estate of Merryman, 669 A.2d 1059 (Pa. Cmwlth) which are attached hereto and incorporated herein as Exhibits A and B respectively; (b) The Petitioners do not know the amount of the disputed settlement between the Bentz Estate and Barber Trucking; (c) While the death of Leslie Bentz was tragic, if not horrific, and the depth of her loss is not capable of being fully understood by the Petitioners/Intervenors or their counsel, it is nonetheless likely that a Cumberland County jury will award less than $600,000 to the Bentz estate, particularly given that the decedent was unmarried, had no dependents, suffered no conscious pain and suffering and claims for loss of consortium are limited to spouses and do not extend to the loss of a child's consortium. See Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); Jackson v Tasty Kake, Inc., 648 A.2d 1214 (Pa Super. 1994); McCaskill v. Phila. Housing Authority, 615 A.2d 382 (Pa. Super 1992) and Schroeder v. Ear, Nose and Throat Associates, 557 A.2d 21 (Pa. Super 1989);. (d) Petitioners/Intervenors have been advised by counsel for Barber Trucking that their demand of $450,000 is reasonable and that Barber would like to pay it, but the inability of the company to obtain appropriate financing is preventing them from doing so. (e) Petitioners/Intervenors are an "interested party" in the settlement between the Bentz estate and Barber Trucking pursuant to 20 Pa. C.S.A. § 3323 (a) and therefore entitled to Petition the court regarding the settlement. 2 Shollenberger & Januzzi, UP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 (f) Assuming that Barber Trucking has settled the claim of the Bentz estate for $600,000, the claims of Stungarys and Zeitner for $50,000 as confirmed in the November 17, 2008 letter from counsel for Barber Trucking and that property damage claims are all paid or payable from the single limit policy of $1,000,000 that is the ONLY available liability coverage, then Ron and Lynn Clark will be undercompensated. Ron Clark is unable to work at a job that paid him upwards of $50,000 per year and has had multiple surgeries to his wrist and upper arm as a result of this crash that have rendered him'totally disabled. 2. Despite the above, the Petitioners/Intervenors are prepared to withdraw the Emergency Petition and agree that the hearing of January 6th be cancelled if all parties to the settlement of the claim of the Bentz estate agree to the following: That on or before January 23rd, 2009, the Petitioners/intervenors be paid the greater of $325,000 or the balance of the $1,000,000 policy of insurance that has been tendered by the Defendants in partial settlement of their claim without prejudice to proceed to trial against the Defendants in the lawsuit filed in the Court of Common Pleas of Cumberland County at No. 07-458 Civil Term and captioned "Ronald E. Clark and Lynn B. Clark, husband and wife, Plaintiffs v. Barber Trucking, Inc. and Dane B. Clark" and that regardless of the outcome of the trial or any appeal therefrom, the 3 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 Petitioners/Intervenors shall be entitled to keep the amount received in partial settlement of the claim. 3. In the alternative, if this Court believes that there is not a legal remedy, then it should nonetheless entertain the Emergency Petition as an equitable matter on the grounds that there is no adequate remedy at law. 4. Proceeding with the Hearing On January 6, 2009 and ordering that the personal representative of the Bentz estate, a representative of Barber Trucking and the Petitioners all attend would likely result in an overall settlement of the case thereby saving the Court and County the time and expense of a trial. WHEREFORE, the Petitioners, Ron and Lynn Clark respectfully request this Honorable Court issue an Order that the Hearing on January 6th proceed as scheduled. Respectfully submitted, Date: January 2, 2009 4 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 SHOLLENBERGER & JANUZZI, LLP Attorneys for Plaintiff 20 Pa.C.S.A. § 3323 Purdon's Pennsylvania Statutes and Consolidated Statutes Currentness Title 20 Pa.C.S.A. Decedents, Estates and Fiduciaries (Refs & Annos) "WChapter 33. Administration and Personal Representatives "®Subchaptter B. Personal Representatives; Powers, Duties and Liabilities (Refs & Annos) y§ 3323. Compromise of controversies (a) In general.--Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against an estate, or to compromise or settle any question or dispute concerning the validity or construction of any governing instrument, or the distribution of all or any part of any estate, or any other controversy affecting any estate, the court, on petition by the personal representative or by any party in interest setting forth all the facts and circumstances, and after such notice as the court shall direct, aided if necessary by the report of a master, may enter a decree authorizing the compromise or settlement to be made. (b) Pending court action.-- (1) Court order.--Whenever it is desired to compromise or settle an action in which damages are sought to be recovered on behalf of an estate, any court or division thereof in which such action is pending and which has jurisdiction thereof may, upon oral motion by plaintiff's counsel of record in such action, or upon petition by the personal representative of such decedent, make an order approving such compromise or settlement. Such order may approve an agreement for the payment of counsel fees and other proper expenses incident to such action. (2) Order not subject to collateral attack.--The order of the court approving such compromise or settlement or an agreement for the payment of counsel fees and other expenses shall not be subject to collateral attack in the orphans' court division in the settlement of an estate. (3) Filing copy of order; additional security.--The personal representative shall file a copy of the order of the court approving such compromise or settlement in the office of the register of wills or clerk of the court having jurisdiction of the estate. When the personal representative has been required to give bond, he shall not receive the proceeds of any such compromise or settlement until the court of the county having jurisdiction of his estate has made an order excusing him from entering additional security or requiring additional security, and in the latter event, only after he has entered the additional security. CREDIT(S) 1972, June 30, P.L. 508, No. 164, § 2, eff. July 1, 1972. HISTORICAL AND STATUTORY NOTES 2005 Main Volume 5- . 41 West Reporter Image (PDF) 669 A.2d 1059, 16 Fiduc.Rep.2d 101 Briefs and Other Related Documents Commonwealth Court of Pennsylvania. In re ESTATE OF Jason MERRYMAN, Deceased. Commonwealth of Pennsylvania, Department of Revenue, Appellant. Argued June 5, 1995. Decided Dec. 28, 1995. The Department of Revenue objected to petition to compromise filed by estate, seeking to deduct, for inheritance tax purposes, all attorney fees and costs incurred when litigating wrongful death and survival action. The Court of Common Pleas, Clarion County, No. 104 R.D. 1993, Greiner, Senior Judge, dismissed objection and Department appealed. The Commonwealth Court, No. 3230 C.D. 1994, Doyle, J., held that only attorney fees attributable to settlement of survival action were deductible administrative expense. Reversed. West Headnotes [1] KeyCite Citing References for this Headnote =89 Compromise and Settlement 8911 Judicial Approval 891<53 Necessity for Approval 891<53.1 k. In General. Most Cited Cases Court approval is required for any type of settlement of survival plans; survival actions are intended to preserve estate and protect creditors and beneficiaries. 20 Pa.C.S.A. 5 3323. 1`21 KeyCite Citing References for this Headnote 89 Compromise and Settlement .89II Judicial Approval 891<53 Necessity for Approval 891<53.1 k. In General. Most Cited Cases Apportionment of amount allotted to survival claim must be approved by court when single settlement is proposed in resolution of both wrongful death claim and survival action. 20 Pa.C.S.A. § 332?3,.t 3 KeyCite Citing References for this Headnote 162 Executors and Administrators 162111 Assets of Estate 162111(A) In General 1621<48 Debts and Rights of Action 1621<51 k. Right of Action for Death of Decedent. Most Cited Cases http://web2.westlaw.comlresultldocumenttext.aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 1 "6%' "X U 162 Executors and Administrators KeyCite Citing References for this Headnote 162VI Claims Against Estate 1162VI E Priorities and Payment 1621<270 Property Available for Payment 1621<271 k. In General. Most Cited Cases 371 Taxation KeyCite Citing References for this Headnote =371VI Legacy, Inheritance and Transfer Taxes 3711<3316 Property Liable 3711<3318 k. Nature of Property. Most Cited Cases (Formerly 3711<865) Wrongful death awards pass outside decedent's taxable probate estate; any claims by decedent's creditors cannot be made against wrongful death award. 42 Pa.C.S.A. 5 8301(b). I4] R KeyCite Citing References for this Headnote 117 Death 117111 Actions for Causing Death 117111(H) Damages or Compensation 1171<80 Elements of Compensation 1171<85 k. Pecuniary Loss to Plaintiff or Beneficiary in General. Most Cited Cases Damages recovered on a wrongful death action are compensation to individual members of decedent's family from pecuniary loss sustained by death of decedent. 42 Pa.C.S.A. > 8301(b). j5?, L KeyCite Citing References for this Headnote -117 Death 117111 Actions for Causing Death >117III A Right of Action and Defenses 1171<7 k. Nature and Form of Remedy. Most Cited Cases 117 Death lJ KeyCite Citing References for this Headnote -117III Actions for Causing Death 117111(A) Right of Action and Defenses 1171<31 Persons Entitled to Sue 117k31(1) k. In General. Most Cited Cases Survival actions are brought by administrator of estate to benefit decedent's estate. 42 Pa.C.S.A. 8302. j61 KeyCite Citing References for this Headnote 371 Taxation 371VI Legacy, Inheritance and Transfer Taxes 3711<3350 Appraisement or Other Valuation 371k3356 k. Deduction of Taxes and Expenses of Administration and Litigation. Most Cited Cases (Formerly 3711<895(7)) Expenses incurred to preserve and distribute estate, such as those incidental to administration of estate, may be deducted when determining inheritance and estate tax due, whereas costs incurred http://web2.westlaw. com/result/documenttext.aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 "r,, ? v, V which are not necessary for resolution of estate, including expenses for sole benefit of legatees, devisees or heirs, are not deductible. 72 P.S. § 9130. I7] _KeyCite Citing References for this Headnote 371 Taxation 371VI Legacy, Inheritance and Transfer Taxes 3711<3350 Appraisement or Other Valuation 3711<3356 k. Deduction of Taxes and Expenses of Administration and Litigation. Most Cited Cases (Formerly 3711<895(7)) Only litigation expenses which benefit estate are deductible from inheritance and estate tax as administrative expenses. 72 P.S. § 9130. 1`81 KeyCite Citing References for this Headnote --371 Taxation 371VI Legacy, Inheritance and Transfer Taxes 3711<3350 Appraisement or Other Valuation ;:-371k3356 k. Deduction of Taxes and Expenses of Administration and Litigation. Most Cited Cases (Formerly 3711<895(7)) Attorney fees incurred for wrongful death claim were not administrative expenses and could not be deducted from inheritance tax liability. 72 P.S. § 9130. l9l KeyCite Citing References for this Headnote =371 Taxation 371VI Legacy, Inheritance and Transfer Taxes =3711<3350 Appraisement or Other Valuation -3711<3356 k. Deduction of Taxes and Expenses of Administration and Litigation. Most Cited Cases (Formerly 3711<895(7)) Only portion of attorney fees attributable to recovery on survival claim could be deducted as administrative expense for inheritance tax purposes in litigation involving both wrongful death and survival claims. 72 P.S. § 9130. *1059 Nicholas J. Lamberti, Assistant Counsel, for appellant. James B. Alexander, for appellee. *1060 Before DOYLE and FRIEDMAN, JJ., and NARICK, Senior Judge. DOYLE, Judge. The Pennsylvania Department of Revenue appeals from an order of the Court of Common Pleas of Clarion County, Orphan's Court Division, which dismissed the Department's objection to the petition to compromise filed by the Estate of Jason Merryman (Estate), concerning the deduction, for inheritance tax purposes, of attorney's fees and costs incurred by the Estate in the successful litigation of a wrongful death and survival action. The stipulated facts are as follows. Jason A. Merryman (Decedent) died as a result of injuries http://web2.westlaw.comlresultldocumenttext.aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 VVl A./_U IV-)-/ 1 a6,G -t Vl o sustained in an April 18, 1992 automobile accident. Decedent, who never married, was survived by two minor children, Justin Merryman and Kara Merryman, and his parents, Karen Merryman and Dennis Merryman. Decedent died intestate, and Karen Merryman was appointed Administratrix of his Estate. On April 14, 1994, the Administratrix filed a wrongful death action on behalf of the minor children and a survival claim on behalf of the Estate against Norman J. Kronister, Jr., the driver of the other vehicle involved in the accident. {NIY j1? t` U i Kronister's insurance carrier, Allstate Insurance Company, agreed to settle the law suit for $67,500, with 80% of that amount ($54,000) allocated to the wrongful death claim and 20% ($13,500) allocated to the survival claim. On October 27, 1994, the Administratrix filed a "petition for approval of the compromise of its claims" with the Court of Common Pleas of Clarion County as required by Section 3323 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 3323.FN1 FN1. Section 3323 requires court approval for any proposed compromise or settlement affecting an estate. Since survival actions are intended to preserve the estate and protect the creditors and beneficiaries, court approval is needed for any type of settlement of survival claims. Moore v Gates 398 Pa Superior Ct. 211, 580 A.2d 1138 (1990), petition for allowance of appeal denied, 527 Pa. 617, 590 A.2d 758 (1991). Moreover, where the case involves a single settlement amount for both a wrongful death claim and a survival action, the court must approve the apportionment of the amount allotted to the survival claim. Id. The petition of compromise proposed, inter alia, to deduct the entire cost of the litigation, including the total attorney's fee, as "expenses of administration" of the Estate from the survival claim portion of the settlement, which was the only taxable part of the Estate for inheritance tax purposes. The original amount of the attorney's fee for the litigation brought on behalf of both the Estate and the minor children was based upon a one-third contingency fee agreement; however, the attorney agreed in the petition to reduce his fee to $15,000, plus reimbursement of any costs advanced. Thus, the $15,000 fee constitutes 22.22% of the entire settlement of $67,500. The one-third contingency fee would have been $22,500, in addition to costs. The Office of Chief Counsel for the Department timely objected to the Estate's proposal to deduct as an expense 100% of the attorney's fee and litigation costs against the survival claim portion of the settlement.FN2 On November 17, 1994, the Orphan's Court dismissed the Department's objections. It is this order which is now appealed to our Court. FN2. The Department did not object to the 80%/20% allocation in favor of the wrongful death claim or the reasonableness of the attorney's fee, nor did it contest the medical expenses, outstanding debts or administrative costs.Excluding the settlement funds, the probate assets and liabilities are as follows: Assets $ 679.57 Medical $7097.23 expenses Outstanding $ 173.25 debts Cost of $ 314.97 Administration (Stipulation of Facts Nos. 14-18.)The Pennsylvania Department of Public Welfare (DPW) originally objected to the Estate's proposed settlement, but DPW withdrew its objection http://web2.westlaw.comlresultldocumenttext.aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 v ? _. t-? 1 ag%, J Vl o when Allstate agreed to pay the Estate $4,000, which was then remitted to DPW, in settlement for the medical expenses. The Department argues that the Estate cannot claim a deduction for inheritance tax purposes of 100% of the litigation expenses arising from both the wrongful death claim and survival claim, where the settlement for the two claims is an 80%/20% apportionment. Specifically, the Department asserts that the *1061 litigation expenses pertaining to the wrongful death suit are not a "reasonable expense of administration" for probate purposes under Section 2127 of the Inheritance and Estate Tax Act (Act),FN3 and further, are specifically disallowed as a deduction for litigation expenses pursuant to Section 2130 of the Act, 72 P.S. § 9130, because the expenses were incurred solely for the benefit of the minor beneficiaries. Additionally, the Department argues that under an equitable "common settlement fund" theory, the deduction of the entire amount of the attorney's fee from the taxable survival action claim is erroneous and patently unfair. FN3. Act of March 4, 1971, P.L. 6, as amended, 72 P.S. 5 9127. This is case of first impression for this Court. Although common pleas courts have addressed comparative situations, none have addressed the particular issues raised in the instant case. Due to the melange of concepts involved, a brief explanation of the basic consequences of the underlying tort settlement are in order. [? . NLS1 Awards pursuant to wrongful death claims pass outside of the decedent's taxable probate estate under Pennsylvania's inheritance tax provisions, and any claims by a decedent's creditors cannot be made against a wrongful death award. The Pennsylvania Wrongful Death Act, 42 Pa.C.S. § 8301(b).FN4 Damages recovered under a wrongful death action are compensation to individual members of the decedent's family for the pecuniary loss sustained by the death of the decedent. Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 588, 606 A.2d 427 (1992). Survival actions, on the other hand, are brought by the administrator of the estate to benefit the decedent's estate. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994); see also the Pennsylvania Survival Act, 42 Pa.C.S. § 8302. These two actions are designed to compensate two different categories of claimants: the spouse and/or members of the decedent's family, on the one hand, and on the other, the decedent through the legal representative of his or her estate. Id. FN4. Section 8301(a) and (b) state in relevant part that: Death Action (a) General Rule.-An Action may be brought ... to recover damages for the death of an individual caused by the wrongful act.... (b) Beneficiaries.-[T]his section shall exist only for the benefit of the spouse, children or parents of the deceased.... The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person.... (Emphasis added.) REASONABLE EXPENSES OF ADMINISTRATION The Department first argues that the trial court erred in allowing 100% of the attorney's fee incurred in the wrongful death and survival actions to be deducted as an administration expense. The Department asserts that only 20% of the litigation expenses, or $3,000, should be allowed as a deduction for inheritance tax purposes because the tort settlement allotted only 20% of the award to http://web2.westlaw.comlresultldocumenttext.aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 vvi !'].LU lv?l A ag-G v vl o the survival claim, the only asset which benefits the Estate; since the award attributable to the wrongful death action does not fall within the taxable estate of the Decedent, neither should the attorney's fee be deductible as an "administrative expense," under Section 2130 of the Act, 72 P.S. § 9130. FN5 FN5. The Department relies upon Fidelity-Philadelphia Trust Co, v Staats 358 Pa 344 57 A.2d 830 (19481 for the definition of "expenses of administration." Fidelity interpreted Section 1602 of the Death Statute, Act of April 1, 1937, P.L. 196, as amended, 12 P.S. § 1602, which was subsequently replaced by 42 Pa.C.S. § 8301(d) on December 10, 1982. The Department's reliance on this case and statute is misplaced. Section 8301 states that a death action may be brought for the death of an individual and states in part: (d) Action by personal representative.-If no person is eligible to recover damages under subsection (b), the personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa.C.S. § 8301(d) (emphasis added).Section 8301 relates to the type of damages a personal representative may claim from the person or entity which has been found to be liable, in part or in full, for the decedent's death, and it does not in any manner relate to the definition of "administrative expenses" under Section 2127 of the Inheritance and Estate Tax Act, the pertinent statute in this case. *1062 The relevant sections of the Inheritance and Estate Tax Act are as follows: Section 2127: The following expenses may be deducted from the value of the property transferred: (1) Administration expenses. All reasonable expenses of administration of the decedent's estate and of the assets includable in the decedent's taxable estate are deductible. 72 P.S. ? 9127 Section 2130: The following are not deductible: http://web2.westlaw.comlresultldocumenttext. aspx?sv=Split&service=Find&scxt=WL&rl... 12130/2008 r agc (3) Litigation expenses of beneficiaries. 72 P.S. ? 9130 j? The law is clear that expenses incurred to preserve and distribute the estate, that is, costs incidental to the administration of the estate, may be deducted, whereas costs incurred which are not necessary for the resolution of the estate, such as expenses for the sole benefit of the legatees, devisees or heirs, are not deductible. In re Estate of Peterson 168 Pa.Cmwlth. 218, 649 A.2d 1007 (1994), petition for allowance of appeal denied, 541 Pa. 646, 663 A. 2d 697 (1995). FN6 FN6. Peterson involved an administratrix who was also the sole devisee of the decedent's residence. The administratrix sold the property and deducted the expenses involved with the sale from her inheritance tax liability. We held that the costs incurred for the sale were not deductible because the sale did not benefit the estate, but rather, benefited the devisee as an individual beneficiary. Moreover, the Court noted that the Department distinguished this situation from a circumstance in which an estate is insolvent and the sale is necessary for adequate distribution of the estate. The Department conceded that the cost of the sale by necessity would have been deductible. IZl ivl The expenses at issue in this case are litigation expenses. The question is, whether the results of the litigation benefitted the estate or did it benefit an individual beneficiary or set of beneficiaries, or both? Craig Estate, 10 Pa.D. & C.3d 154 (1978).FN7 Only litigation expenses which benefit the estate are deductible as administrative expenses. Id. For example, it is well-established that attorney fees incurred in a will contest, are not deductible, because the litigation is not for the benefit of the estate, but for a particular beneficiary. 72 P.S. 5 9130; In Line's Estate, 155 Pa. 378, 26 A. 728 (1893). FN7. In Craig Estate, Harry Bamber was accused of murdering the decedent who had left her entire estate to him. The estate consisted of bank deposits and real estate located in Virginia. The decedent's family retained an attorney whose fee was based upon a contingency fee agreement of 40% of the award. The attorney received a declaratory judgment determination that the decedent had been domiciled in Pennsylvania and therefore the Slayer's Act was applicable, which disqualified Bamber from receiving his share of the estate. The attorney also filed a survival claim against Bamber, which amounted to an award of $3,825 for the estate. The heirs attempted to deduct the total amount of the attorney's fee for inheritance tax purposes; however, the court only allowed the full amount of the attorney's fee associated with the survival action (40% of $3,825) to be deducted, and only one half of the attorney's fees relating to the declaratory judgment award because the declaratory judgment essentially involved a contest among the beneficiaries. Without the declaratory judgment, there would have been no estate for Pennsylvania to tax in the first place. Since the declaratory judgment benefited both the estate and the beneficiaries, the attorney expenses were equally apportioned. 1 LI U In the instant case, it is clear that the survival action benefited the Estate and that the settlement of the wrongful death claim solely benefited the beneficiaries,FN8 and, we therefore must conclude that the part of the attorney's fees incurred in pursuit of the wrongful death claim is not a deductible expense of the administration and the trial court erred in allowing it to be taken as a tax deduction. http://web2.westlaw. comlresultldocumenttext. aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 VVl L L.L %A I V?l i arp, o vi u FN8. It is inconsequential that the "actual" beneficiaries of the wrongful death claim are the same as the "actual" beneficiaries of the survival action. The Estate argues that Williams Estate, 42 Pa.D. & C.2d 169 (Phila.Orphans Court 19671 and Baur Estate, 13 Fiduciary Rep.2d 275 (Montgomery County Orphans Court 1993), support the trial court's decision that *1063 all of the attorney fees are deductible. It asserts that these decisions hold that a deduction for an attorney's fee which relates to the administration of non-probate, nontaxable, assets may be taken as a deduction for inheritance tax purposes. Both Baur and Williams, however, are factually distinguishable from the facts presented in this appeal and are limited thereby. Further, to the extent that they would hold that all litigation costs associated with non-taxable and non-probate assets are tax deductible under the Act, we decline to follow them. ALLOCATION OF LITIGATION EXPENSES The Department requests this Court to permit a deduction for attorney's fees of 20% of the attorney's fee charged, since the settlement apportioned only 20% of the settlement to the survival action, which is the only taxable portion of the settlement. We agree that such apportionment is an equitable solution. Therefore, $3000.00 (20% of $15,000 -the total amount of the attorney's fee) is deductible for inheritance tax purposes. Accordingly, the order of the Court of Common Pleas is reversed. ORDER NOW, December 28, 1995, the order of the Court of Common Pleas of Clarion County in the above-captioned matter is hereby reversed. Pa.Cmwlth.,1995. In re Estate of Merryman 669 A.2d 1059, 16 Fiduc.Rep.2d 101 Briefs and Other Related Documents (Back to top) • 1995 WL 17850171 (Appellate Brief) Estate's Brief in Response to Petition for Review of the Clarion County Court of Common Pleas, Orphans' Court Decree Entered for Docket No. 104 R.D. 1993 on November 17, 1994 (Apr. 13, 1995) • 1995 WL 17850172 (Appellate Brief) Petition for Review of the Clarion County Court of Common Pleas, Orphans' Court Decree Entered for Docket No. 104 R.D. 1993 on November 17, 1994 (Mar. 14, 1995) END OF DOCUMENT West Reporter Image (PDF) Adobe Reader is required to view PDF images. ?t $ n?- a[wwu?ir (C) 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw. comlresultldocumenttext.aspx?sv=Split&service=Find&scxt=WL&rl... 12/30/2008 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator, of the Estate of LESLIE K. BENTZ, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B. CLARK, Defendants NO. 2007-3895 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW this 2nd day of January, 2009, 1 hereby certify that I have served the following Answer to Rule Returnable on the following via U.S. mail, postage prepaid: Jeffery A. Krawitz, Esquire Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Jeffrey Datz, Esquire Seidel, Weitz, Garfinkle & Datz, LLC 20th Floor 121 South Broad Street Philadelphia, PA 19107-4553 5 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 SHOLLENBERGER & JANUZZI, LLP Attornevs for Plaintiff By: hollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 ^? ? cam: ? ?:? :? .?.? ?. _ M4Gti ?x? ? ? j: , v i # ('' `?? T.e. {?4.7 ??.y "l, ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTZ, Administrator of the Estate of LESLIE K. BENTZ, Plaintiff V. BARBER TRUCKING, INC., BARBER TRUCKING COMPANY, INC., and DANE B.: CLARK, Defendants ORDER OF COURT AND NOW, this 6" Shollenberger, Esq., attorney for the Emergency Petition in Eq IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3895 CIVIL TERM of January, 2009, upon relation of Timothy A. that he will be filing a praecipe to withdraw To Intervene and for Temporary Restraining Order To Stay Consideration of Approval of a Settlement, the hearing previously scheduled in this matter for January 6, 2009, is lled. BY THE COURT, Hubert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff t 1 I - 'V, 6 301 0 f', 1 ?.- N Jeffrey A. Krawitz, Esq. Silverman & Krawitz Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 Attorney for Defendant Barber Trucking Company, Inc. ,,,,Timothy A. Shollenberger, Esq. 2225 Millennium Way Enola, PA 17025 Attorney for Petitioners/Intervei :rc eopltv rY?!ZtLC, SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTS, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiffs V. BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B. CLARK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3895 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants PRA€CIPE TO WITHDRAWL EMERCCENCY PETITION IN EQUITY TO INTERVENE ANI7 ORJEI IPORARY RESTRAINING ORDER TO STAY CONSIDERATION OF APPROVAL PROVALOF SETTLEMENT TO THE PROTHONOTARY: Please mark the Emergency Petition of Equity to Intervene and For Temporary Restraining Order to Stay Consideration of Approval of Settlement in the above-referenced matter withdrawn. Attorney for Plaintiff ID #34343 2225 Millennium Way Enola, PA 17025 90 Date: January, 2009 Respectfully submitted, T SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff ESTATE OF LESLIE K. BENTZ, by THOMAS E. BENTS, Administrator of THE ESTATE OF LESLIE K. BENTZ, Plaintiffs V. BARBER TRUCKING, INC., BARBER TRUCKING CO., INC., and DANE B. CLARK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3895 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED OF SERVICE And now, this day of January, 2009, 1 hereby certify that a true and correct copy of Plaintiffs Praecipe to Withdrawl Emergency Petition in Equity to Intervene and for Temporary Restraining Order to Stay Consideration of Approval of Settlement has been served upon the following via U.S. Mail, postage prepaid, addressed to: Jeffery A. Krawitz, Esquire Silverman & Krawitz Two Penn Center Plaza, Suite 910 Philadelphia, PA 19102 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 SHOLLENBERGER & JANUZZI, LLP By: t... ._ ? y? C ' ,wp '> C"7 ? Y