HomeMy WebLinkAbout07-5333i
DOROTHY M. KELLEY
Plaintiff
V.
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO.: 0 9- Y333 ,.yQ -Ti,
CIVIL ACTION -LAW
JURY TRIAL BY DEMAND
PRAECIPE FOR WRIT OF SUMMONS
TO THE CUMBERLAND COUNTY PROTHONOTARY:
Please issue a Writ of Summons in the above-captioned action.
Writ of Summons shall be issued and forwarded to Sheriff for service upon:
Daniel Inderbitzen
134 Round Ridge Road
Mechanicsburg, PA 17055
Cab East, LLC, d/b/a Goodall Pools, Inc.
Attention: Robert L. Goodall, Jr.
3501 Simpson Ferry Road
Camp Hill, PA 17011
& HITCHINGS, LLC
Date: 9 ? -6 7
oseph L. Hitc ' gs, Esqu
Attorney I.D.# 65551
4807 Jonestown Road, Suite 14E
Harrisburg, Pennsylvania 17109
Telephone: (717) 657-3900
Fax: (717) 657-2060
Attorney for Plaintiff
I r/
WRIT OF SUMMONS
TO THE ABOVE MENTIONED NAMED DEFENDANTS:
YOU ARE NOTIFIED THAT THE ABOVE NAMED PLAINTIFF HAS
COMMENCED AN ACTION AGAINST YOU.
Date: 6,-,2067
/s/ a,.U4, 2
othonotary
By:
Deput
C-.) o
rn
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J' SHERIFF'S RETURN - REGULAR
CASE NO: 2007-05333 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KELLEY DOROTHY M
VS
INDERBITZEN DANIEL ET AL
TIMOTHY REITZ , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
INDERBITZEN DANIEL the
DEFENDANT
, at 1410:00 HOURS, on the 12th day of September, 2007
at GOODALL POOLS INC 3501 SIMPSON FERRY ROAD
CAMP HILL, PA 17011 by handing to
TRACEY LEWIS (OFFICE MANAGER)
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 13.44
Postage .41
Surcharge 10.00
.00
4) ISJ0.7 C? 41.85
Sworn and Subscibed to
before me this day
of ,
So Answers:
R. Thomas Kline
09/13/2007
JOSEPH HITCHINGS
By:
Deputy She iff
A.D.
Jo SHERIFF'S RETURN - REGULAR
CASE NO: 2007-05333 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KELLEY DOROTHY M
VS
INDERBITZEN DANIEL ET AL
TIMOTHY REITZ Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
CAB EAST LLC D/B/A GOODALL POOLS INC the
DEFENDANT , at 1410:00 HOURS, on the 12th day of September, 2007
at ATTN ROBERT L GOODALL JR 3501 SIMPSON FERRY ROAD
CAMP HILL, PA 17011 by handing to
TRACEY LEWIS (OFFICE MANAGER)
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Service .00 r?sL
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
?„ gl)Ylb? 16.00 09/13/2007
JOSEPH HITCHINGS
Sworn and Subscibed to By:
before me this day D puty S riff
of A.D.
DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
DOCKET NO. 07-5333 Civil Term
V.
CIVIL ACTION - LAW
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a JURY TRIAL BY DEMAND
GOODALL POOLS, INC.,
Defendants
PRAECIPE TO ENTER APPEARANCE
To the Prothonotary:
Please enter my appearance on behalf of DANIEL INDERBITZEN and
GOODALL POOLS, INC., Defendants in the above-captioned matter.
Date: _ oo
LAW OFFICES OF JAMES W. HARVEY
JAMES W. H VEY, ESQUIR
Attorney for 15ANIEL INDERBITZEN and
GOODALL POOLS, INC., Defendants
Rosslyn Commons
333 Baldwin Rd., 3`d Floor
Pittsburgh, PA 15205
k 1%
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
PRAECIPE TO ENTER APPEARANCE was served by U.S. First Class Mail,
postage prepaid, this day of September, 2007, upon the following counsel
of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
JAMES . HARVEY, ESQ 1RE
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DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
DOCKET NO. 07-5333 Civil Term
V. :
CIVIL ACTION - LAW
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a JURY TRIAL BY DEMAND
GOODALL POOLS, INC.,
Defendants
PRAECIPE FOR RULE TO FILE COMPLAINT
PURSUANT TO Pa.R.C.P. 1037(a)
To the Prothonotary:
Please issue a rule on plaintiff to file a Complaint pursuant to
Pa.R.C.P. 1037(a).
LAW OFFICES OF JAMES W. HARVEY
Date: q' _a L-` -0-1
JAM 1?. gARW-Y, ESQUIRE
Att or a for DANIEL INDERBITZEN and
GOO LL POOLS, INC., Defendants
Rosslyn Commons
333 Baldwin Rd., 3`d Floor
Pittsburgh, PA 15205
RULE TO FILE COMPLAINT
And now this X day of 2007, a rule is hereby granted upon
plaintiff herein to file a complaint within twenty days after service hereof.
/A It It "fa # COX a
S
-
P thonotary
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DOROTHY M. KELLEY,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.,
Defendants
DOCKET NO. 07-5333 Civil Term
CIVIL ACTION - LAW
JURY TRIAL BY DEMAND
NOTICE OF SERVICE
The undersigned hereby certifies that a true and correct RULE TO FILE
COMPLAINT was served by U.S. First Class Certified Mail, Return Receipt
Requested and U.S. First Class Mail, postage prepaid, this 2nd day of October, 2007,
upon the following counsel of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
JAMES VE UIRE
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DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. DOCKET NO.: 07-5333 CIVIL TERM
DANIEL INDERBITZEN, CIVIL ACTION -LAW
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC, JURY TRIAL DEMANDED
Defendants
To: Daniel Inderbitzen, Cab East, LLC,
d/b/a Goodall Pools, Inc.
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION
ABOUT HIRING AN ATTONEY.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFOMRAITON ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED OR NO FEE.
LAWYER REFERRAL SERVICE
4th Floor, Cumberland County Courthouse
Carlisle, Pennsylvania 17013
(717) 240-6200
DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : DOCKET NO.: 07-5333 CIVIL TERM
DANIEL INDERBITZEN, : CIVIL ACTION - LAW
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC, JURY TRIAL DEMANDED
Defendants
COMPLAINT
AND NOW, this , day of October 2007 comes the Plaintiff, Dorothy M. Kelley, by and
through her undersigned attorneys, McShane & Hitchings, LLC, and Joseph L. Hitchings, Esquire, and
avers in support of her Complaint against Defendant as follows:
1. Plaintiff, Dorothy M. Kelley, is an adult individual residing at 82 Linda Drive, Lot 22,
Mechanicsburg, Cumberland County, Pennsylvania 17050.
2. Defendant, Daniel Inderbitzen, is an adult individual residing at 134 Round Ridge Road,
Mechanicsburg, Cumberland County, 17055.
3. Defendant, Cab East, LLC, is a foreign limited liability company doing business in the
Commonwealth of Pennsylvania as Defendant, Goodall Pools, Inc., located at 3501 Simpson Ferry Road,
Camp Hill, Cumberland County, Pennsylvania 17011.
4. On September 6, 2005, at approximately 11:17 a.m., Plaintiff was operating a 2000
Pontiac Grand Am SEI car bearing Pennsylvania registration EWN8591 in a westbound direction on
Wertzville Road (Route 944) taking her 4 year old great-granddaughter to a friend's house to play.
5. As Plaintiff's vehicle approached the intersection of Wertzville Road and Linda Drive,
she came to a complete stop in order to turn left onto Linda Drive. Plaintiff activated her turn signal, and
waited for traffic approaching in the oncoming lane to clear before making her left turn onto Linda Drive.
6. At said time and place, Defendant, Daniel Inderbitzen was operating a 2004 Ford truck
bearing registration number FLW7960, traveling in a westbound direction on Wertzville Road, (Route
944), behind the vehicle driven by Plaintiff.
7. At all times material hereto, Defendant, Daniel Inderbitzen was an employee of Goodall
Pools, Inc., and was acting and operating within the scope of his employment with Defendant, Goodall
Pools, Inc.
8. At all times material hereto, Defendant, Cab East, LLC, was the listed owner of the 2004
Ford truck operated by Defendant, Daniel Inderbitzen.
9. Wertzville Road at the intersection with Linda Drive is a 2-lane roadway with one lane of
travel in each direction.
10. At said time and place, the vehicle being operated by Defendant, Daniel
Inderbitzen, failed to stop behind the vehicle driven by Plaintiff, collided with Plaintiff's vehicle,
pushing the vehicle into a nearby field.
COUNTI
PLAINTIFF v. DEFENDANT DANIEL INDERBITZEN
11. Paragraphs 1 through 10 hereof are incorporated by reference as if the same were
fully set forth herein.
12. The collision of the Defendant's vehicle with the Plaintiff's vehicle was a direct and
proximate result of the careless and negligent conduct of Defendant, Daniel Inderbitzen, including but not
limited to:
a. Operating a vehicle in a reckless manner;
b. Failing to maintain a proper lookout;
C. Failing to have his vehicle under control;
d. Failing to stop his vehicle before colliding with the vehicle driven by Plaintiff;
e. Traveling at an excessive rate of speed;
f. Failing to yield to a vehicle turning left, and;
g. Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code
relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of
negligence.
13. The impact of the Defendant's vehicle with the Plaintiff's vehicle caused her seat to
break and her car to be declared a total loss.
14. After the accident, Plaintiff immediately sought medical treatment and was transported
by way of ambulance to Holy Spirit Hospital in Camp Hill, Pennsylvania.
15. As a direct and proximate result of the careless and negligent conduct of Defendant,
Daniel Inderbitzen, Plaintiff sustained the following injuries and/or aggravations of pre-existing
conditions, some or all of which may be permanent:
a. Back, neck, and shoulder pain;
b. Back and lung bruises and contusions;
C. Hip, knee, and ankle pain;
d. Brain injury with resultant short term memory loss;
e. Headaches;
f. Nerve damage behind her right eye causing blurred vision; and
g. Traumatic Fourth Nerve Palsy in her right eye.
16. As a direct and proximate result of the careless and negligent conduct of Defendant,
Daniel Inderbitzen, and the injuries suffered in the accident, Plaintiff was unable to work for a period of
time resulting in lost wages.
17. As a result of the accident and the injuries sustained therein, Plaintiff has suffered serious
and permanent injury, which required medical treatment, for which she has incurred medical bills and
expenses and may require further medical treatment and expenses in the future.
18. As a result of the accident and the injuries sustained therein, Plaintiff has suffered an
interruption of her daily habits and pursuits to her detriment and loss.
19. All injuries and damages as set forth herein suffered by Plaintiff, Dorothy M. Kelley,
were caused by the negligence of Defendant, Daniel Inderbitzen.
WHEREFORE, Plaintiff, Dorothy M. Kelley demands judgment against the Defendant,
Daniel Inderbitzen, in the amount and excess of twenty-five ($25,000.00) thousand dollars plus costs,
interest, and delay damages, if applicable.
COUNT II
PLAINTIFF v. DEFENDANT, CAB EAST, LLC, d/b/a GOODALL POOLS, INC
20. Paragraphs 11 through 19 hereof are incorporated by reference as if the same were fully
set forth herein.
21. At all times, material hereto Defendant, Daniel Inderbitzen was acting within the course
and scope of his employment with Defendant, Goodall Pools, Inc.
22. Defendant, Cab East, LLC, d/b/a Goodall Pools, Inc., is vicariously liable for the
negligence and resultant damages caused by its employee Defendant, Daniel Inderbitzen, under the theory
of Respondeat Superior.
23. Defendant, Cab East, LLC, d/b/a Goodall Pools, Inc., is negligent for failing to
adequately and appropriately train Defendant, Daniel Inderbitzen, to operate vehicles in the course and
the scope of his employment and to abide by the rules and provisions of the Pennsylvania Motor Vehicle
Code relating to the operation of motor vehicles.
24. The collision of the Defendant's vehicle with the Plaintiff's vehicle was a direct and
proximate result of the careless and negligent conduct of Defendant, Cab East, LLC, d/b/a Goodall Pools,
Inc., employee, as set forth more fully in Paragraph 12 hereof:
WHEREFORE, Plaintiff, Dorothy M. Kelley demands judgment against the Defendant,
Cab East, LLC, d/b/a Goodall Pools, Inc., in the amount and excess of twenty-five thousand dollars
($25,000.00) plus costs, interest, and delay damages, if applicable.
Respectfully Submitted,
& HITCHINGS, LLC
? Xi-tom---
Joseph L. I1hphings, E
Attorney ID# 65551
4807 Jonestown Road,
Harrisburg, Pennsylvania 17109
Telephone: (717) 657-3900
Attorney for Plaintiff
VERIFICATION
I, Dorothy M. Kelley, verify that the statements made in this Complaint are true and
correct to the best of my knowledge. I understand that false statements made herein are subject
to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
to
Date Dorothy . Kelley
DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. DOCKET NO.: 07-5333 CIVIL TERM
DANIEL INDERBITZEN, CIVIL ACTION -LAW
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC, JURY TRIAL DEMANDED
Defendants
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
CERTIFICATE OF SERVICE
I, Joseph L. Hitchings, Esquire, hereby certify that the following service has been
completed in compliance with the Pennsylvania Rules of Civil Procedure:
Via first class mail
James W. Harvey, Esquire
Rosslyn Commons
333 Baldwin Road, 3rd Floor
Pittsburgh, PA 15205
Respectfully submitted,
Attorney Identifica!
y 65551
4807 Jonestown Road, Suite 148
Harrisburg„ Pennsylvania 17109
Telephone: (717) 657-3900
Attorney for Plaintiff
McShane & Hitchings, LLC
oseph L. i ngs, squire
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DOROTHY M. KELLEY,
Plaintiff
V.
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 07-5333 Civil Term
CIVIL ACTION - LAW
JURY TRIAL BY DEMAND
NOTICE TO PLEAD
YOU ARE HEREBY NOTIFIED to file a written response to the enclosed
ANSWER AND NEW MATTER within TWENTY (20) days from service hereof or a
judgment may be entered against you.
ANSWER AND NEW MATTER
AND NOW COME, Defendants, DANIEL INDERBITZEN and GOODALL
POOLS, INC., by and through the undersigned attorney, and submit the following
Answer and New Matter to Plaintiff's Complaint, and in support thereof states as
follows:
1. After reasonable investigation, Defendants lack knowledge and
information sufficient to determine the truth of the averments set forth in Paragraph 1
of Plaintiff's Complaint and therefore deny same.
2. Paragraph 2 of Plaintiff's Complaint is admitted.
1
3. Paragraph 3 of Plaintiff's Complaint is denied as stated. It is admitted
that Goodall Pools, Inc., is located at 3501 Simpson Ferry Road, Camp Hill,
Cumberland County, Pennsylvania 17011. However, it is denied that an entity known
as CAB East LLC has any ownership or proprietary interest in Goodall Pools, Inc.
4. After reasonable investigation, Defendants lack knowledge and
information sufficient to determine the truth of the averments set forth in Paragraph 4
of Plaintiff's Complaint and therefore deny same.
5. After reasonable investigation, Defendants lack knowledge and
information sufficient to determine the truth of the averments set forth in Paragraph 5
of Plaintiff's Complaint and therefore deny same.
6. Paragraph 6 of Plaintiff's Complaint is admitted.
7. Paragraph 7 of Plaintiff's Complaint is admitted.
8. Upon information and belief, the averments of Paragraph 8 of Plaintiff's
Complaint are admitted.
9. Upon information and belief, the averments of Paragraph 9 of Plaintiff's
Complaint are admitted.
10. Upon information and belief, the averments of Paragraph 10 of
Plaintiff's Complaint are admitted.
11. Paragraph 11 of Plaintiff's Complaint contains conclusions of law to
which no response is required. To the extent that a response may later be deemed
necessary, it is admitted that a vehicle operated by Daniel Inderbitzen was involved
in a motor vehicle accident on the date and in the place specified in Plaintiff's
Complaint. To the extent that Paragraph 11 purports to state allegations of
2
negligence against this Defendant, such allegations are specifically denied pursuant
to Pa.R.C.P. 1029(e).
OUNT 1
12. Defendants incorporate herein their answers to Paragraphs 1 through
11 of Plaintiff's Complaint as though fully set forth at length.
13. Paragraph 13 of Plaintiff's Complaint and its sub paragraphs (a)
through (g) contain conclusions of law to which no response is required. To the
extent that a response may later be deemed necessary, all allegations of negligence
are specifically denied pursuant to Pa.R.C.P. 1029(e).
14. After reasonable investigation, Defendants lack knowledge and
information sufficient to determine the truth of the averments set forth in Paragraph
14 of Plaintiff's Complaint and therefore deny same.
15. Paragraph 15 of Plaintiff's Complaint contains conclusions of law to
which no response is required. To the extent that a response may later be deemed
necessary, the averments of negligence contained in Paragraph 15 of Plaintiff's
Complaint are specifically denied pursuant to Pa.R.C.P. 1029(e). After reasonable
investigation, these Defendants lack knowledge and information sufficient to
determine the truth of the averments set forth in the remaining averments of
Paragraph 16 of Plaintiff's Complaint and therefore deny same.
16. Paragraph 16 of Plaintiff's Complaint contains conclusions of law to
which no response is required. To the extent that a response may later be deemed
necessary, the averments of negligence contained in Paragraph 16 of Plaintiff's
Complaint are specifically denied pursuant to Pa.R.C.P. 1029(e). After reasonable
3
investigation, these Defendants lack knowledge and information sufficient to
determine the truth of the averments set forth in the remaining averments of
Paragraph 16 of Plaintiff's Complaint and therefore deny same.
17. Paragraph 17 of Plaintiff's Complaint contains conclusions of law to
which no response is required. To the extent that a response may later be deemed
necessary, the averments of negligence contained in Paragraph 17 of Plaintiff's
Complaint are specifically denied pursuant to Pa.R.C.P. 1029(e). After reasonable
investigation, these Defendants lack knowledge and information sufficient to
determine the truth of the averments set forth in the remaining averments of
Paragraph 17 of Plaintiff's Complaint and therefore deny same.
18. Paragraph 18 of Plaintiff's Complaint contains conclusions of law to
which no response is required. To the extent that a response may later be deemed
necessary, the averments of negligence contained in Paragraph 18 of Plaintiff's
Complaint are specifically denied pursuant to Pa.R.C.P. 1029(e). After reasonable
investigation, these Defendants lack knowledge and information sufficient to
determine the truth of the averments set forth in the remaining averments of
Paragraph 18 of Plaintiff's Complaint and therefore deny same.
19. Paragraph 19 of Plaintiff's Complaint contains conclusions of law to
which no response is required. To the extent that a response may later be deemed
necessary, the averments of negligence contained in Paragraph 19 of Plaintiff's
Complaint are specifically denied pursuant to Pa.R.C.P. 1029(e). After reasonable
investigation, these Defendants lack knowledge and information sufficient to
determine the truth of the averments set forth in the remaining averments of
4
Paragraph 19 of Plaintiff's Complaint and therefore deny same.
WHEREFORE, Defendants deny that they are liable to Plaintiff for any sum
whatsoever, and demand judgment be entered in their favor.
COUNT II
20. Defendants incorporate herein their answers to Paragraphs 1 through
19 of Plaintiff's Complaint as though fully set forth at length.
21. The averments of Paragraph 21 of Plaintiff's Complaint are admitted.
22. The averments of Paragraph 22 of Plaintiff's Complaint contain
conclusion of law to which no response is required. To the extent that a response
may later be deemed necessary, the averments of negligence contained in
Paragraph 22 of Plaintiff's Complaint are specifically denied pursuant to Pa.R.C.P.
1029(e).
23. The averments of Paragraph 23 of Plaintiff's Complaint contain
conclusion of law to which no response is required. To the extent that a response
may later be deemed necessary, the averments of negligence contained in
Paragraph 23 of Plaintiff's Complaint are specifically denied pursuant to Pa.R.C.P.
1029(e).
24. The averments of Paragraph 24 of Plaintiff's Complaint contain
conclusion of law to which no response is required. To the extent that a response
may later be deemed necessary, the averments of negligence contained in
Paragraph 24 of Plaintiff's Complaint are specifically denied pursuant to Pa.R.C.P.
1029(e).
WHEREFORE, Defendants deny that they are liable to Plaintiff for any sum
5
whatsoever, and demand judgment be entered in their favor.
NEW MATTER
25. Plaintiff's action is governed by the provisions of the Pennsylvania
Comparative Negligence Act, 42 Pa.C.S.A. Section 7102, et seq.
26. The instant action is governed by the doctrine of assumption of the
risk
27. Plaintiff's Complaint fails to state a cause of action upon which relief
can be granted.
28. Some or all of the injuries/damages alleged by Plaintiff may be
unrelated to the accident in question and may have been caused by
events/occurrences which took place either prior to or subsequent to the underlying
incident.
29. Some or all of the injuries/damages alleged by the Plaintiff are due to
superseding and/or intervening causes, over which this Defendant had no control.
30. Defendant pleads the provisions of the Sudden Emergency Doctrine as
a complete defense.
31. Plaintiff's claims are or may be barred by the statute of limitations.
WHEREFORE, Defendants deny that they are liable to Plaintiff for any sum
whatsoever, and demand judgment be entered in their favor.
JURY TRIAL DEMANDED
LAW OFFICES OF JAMES W. HARVEY
JAMES W. HARVE SQUIRE
6
Attorney for DANIEL INDERBITZEN and
GOODALL POOLS, INC., Defendants
Rosslyn Commons
333 Baldwin Rd., Td Floor
Pittsburgh, PA 15205
7
VERIFICATION
I, ROBERT GOODALL, state that I am President of GOODALL POOLS, INC.,
a defendant herein, that I am authorized to make this Verification on its behalf and that the
facts set forth in the foregoing ANSWER AND NEW MATTER are true upon my
information and belief.
I understand that my statements are made subject to the penalties of 18 Pa.
Cons. Stat. Section 4904 relating to unsworn falsification to authorities.
GOODALL POOLS, INC.
?c By:
DA E ROBERT
INC., President
VERIFICATION
DANIEL INDERBITZEN hereby states that he is a defendant in this action
and that the statements of fact made in the foregoing ANSWER AND NEW MATTER are
true and correct to the best of his information and belief. The undersigned understands
that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Section
4904 relating to unsworn falsification to authorities.
-IaM, r0, 2ooq `? Mlv6j q, ??4 .
Date DANIEL INDERBITZEN
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
ANSWER AND NEW MATTER was served by U.S. First Class Mail, postage
prepaid, this 11 ? day of January, 2008, upon the following counsel of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
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JA S W. HARVEY, QUIRE
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DOROTHY M. KELLEY,
Plaintiff
V.
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 07-5333 Civil Term
CIVIL ACTION - LAW
CERTIFICATE PREREQUISITE TO SERVICE OF
A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant
to Rule 4009.22, Defendants, DANIEL INDERBITZEN and GOODALL POOLS, INC.,
certify that:
1. A Notice of Intent to Serve the Subpoena with a copy of the subpoena
attached thereto was mailed to each party on January 25, 2008, at least twenty days
prior to the date on which the subpoena is sought to be served.
2. A copy of the Notice of Intent, including the proposed subpoena, is
attached to this Certificate and marked as "Exhibit A".
3. No objection to the subpoena has been received.
4. The subpoena which will be served is identical to the subpoena which
is attached to the Notice of Intent to Serve the Subpoena.
Date: 07 - 075 -'M
JAME$f W. HARVEY, ESQUIRE
Atto?y for DANIEL INDERBITZEN and
GO ALL POOLS, INC., Defendants
Rosslyn Commons Building, 3'd Floor
333 Baldwin Road
Pittsburgh, PA 15205
DOROTHY M. KELLEY,
Plaintiff
V.
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 07-5333 Civil Term
CIVIL ACTION - LAW
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE
DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
DANIEL INDERBITZEN and GOODALL POOLS, INC. intend to serve a
subpoena identical to the one that is attached to this notice. You have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made the subpoena
may be served.
Date:
4Z147
JAMES W. y4ARVEY, ESQUIRE
Attorney fof DANIEL INDERBIT EN and
GOODALL POOLS, INC., Defendants
Rosslyn Commons Building, 3`d Floor
333 Baldwin Road
Pittsburgh, PA 15205
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DOROTHY M. KELLEY,
Plaintiff
VS. File No. 07-5333
DANIEL INDERBITZEN, CAB EAST, LLC
d/b/a GOODALL POOLS, INC.
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO:
ERIE INSURANCE
(Name of Person or Entity)
Within twenty (20) days attar service of this subpoena, you are ordered by the court to produce the
following documents or things:
Any and all documents regarding the first party benefits file of
Dorothy M. Kelley for the date of loss of 09/06/05. Erie Claim
Number 010170826770.
at Law Offices of James W. Harvey, 333 Baldwin Road, 3rd Flr.,_Pgh., PA 15205
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the address listed
above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the
things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days
after its service, the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James W. Harvey, Esquire
ADDRESS: 155 Baldwin Road, 3rd Flr.
Pittsburgh, PA 15205
TELEPHONE: 412-429-5842
SUPREME COURT ID # 33462
ATTORNEY FOR: Defendants
Date: / ZIA?k
'SW ofAhe Court
BY ;P.
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Deputy
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.2 was served by
U.S. First Class Mail, postage prepaid, this day of January, 2008, upon the
following counsel of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
W.)AARVEY, ESQUIRE
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO
RULE 4009.22 was served by U.S. First Class Mail, postage prepaid, this,;610day
of February, 2008, upon the following counsel of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
RVEY, SQUIRE
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DOROTHY M. KELLEY,
V.
Plaintiff
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 07-5333 Civil Term
CIVIL ACTION - LAW
JURY TRIAL BY DEMAND
MOTION TO COMPEL DISCOVERY
AND NOW come the defendants, defendants, DANIEL INDERBITZEN and
GOODALL POOLS, INC., by their attorneys, William C. Gallishen, Esquire and
James W. Harvey, Esquire, and files this Motion to Compel plaintiff, DOROTHY M.
KELLY, to produce Answers to Interrogatories and Responses to Request for
Production of Documents and in support thereof avers the following:
1. On January 15, 2008, defendants, DANIEL INDERBITZEN and
GOODALL POOLS, INC., served on plaintiff, DOROTHY M. KELLEY, a set of
Interrogatories and a Request for Production of Documents Directed to Plaintiff. A
copy of the relevant correspondence is attached hereto as Exhibit "A".
3. On March 13, 2008, correspondence was sent to counsel for plaintiff,
Joseph Hitchings, Esquire, requesting that plaintiff respond to the discovery within
ten (10) days or contact defense counsel to advise the status of the discovery
responses. A copy of the correspondence is attached hereto as Exhibit "B".
4. To date, plaintiff has failed to produce Answers to Interrogatories and
Responses to Request for Production of Documents.
WHEREFORE, defendants, DANIEL INDERBITZEN and GOODALL POOLS,
INC., requests this court to enter an Order compelling plaintiff, DOROTHY M.
KELLY, to answer defendant's Interrogatories and respond to defendant's Request
for Production of Documents.
JURY TRIAL DEMANDED
LAW OFFICES OF JAMES W. HARVEY
eo,
WILLIAM C. G EN, ESQUIRE
JAMES W. HARVEY, ESQUIRE
Attorney for DANIEL INDERBITZEN and
GOODALL POOLS, INC., Defendants
Rosslyn Commons Bldg., Td Fl.
333 Baldwin Road
Pittsburgh, PA 15205
Law Offices of James W. Harvey
Rosslyn Commons Building, 3rd Floor
333 Baldwin Road
Pittsburgh, PA 15205
Employees of the SAFECO P & C Insurance Companies
James W. Harvey*
Terrance R. Henne
Bryan B. Campbell*
Christopher A. Beck **
James L. Barlowt
Also admitted in West Yuginia
**Also admitted {n West Virginia and Ohio
tAlso admitted in New York and New Jersey
January 15, 2008
Joseph Hitchings, Esquire
4807 Jonestown Road
Suite 148
Harrisburg, PA 17109
Phone (412)429-5842
Toll Free (866) 521-5842
Fax (800) 830-1822
Writer's Direct Dial (412)429-5844
e--mail: jamharAsafeco.com
Re: Dorothy Kelley v. Daniel Inderbitzen, et al.
Docket No. 07-5333 Civil Term (Cumberland County. CCP)
Dear Mr. Hitchings:
Enclosed please find Defendants' Interrogatories Directed to Plaintiff and Defendants' Request
for Production of Documents Directed to Plaintiff in regard to the above-captioned matter.
Your timely response to the enclosed discovery requests in accordance with the Pennsylvania
Rules of Civil Procedure will be appreciated.
Sincerely,
James W. Harvey, Esquire
JWH/lam
Enclosures
cc: Robert Goodall
Daniel Inderbitzen
Melissa Dearman - 5855 8918
Law Offices of James W. Harvey
Rosslyn Commons Building, 3rd Floor
333 Baldwin Road
Pittsburgh, PA 15205
Employees of the S,4FEC0 P & C Insurance Companies
James W. Harvey*
Terrance R. Henne
Bryan B. Campbell*
Christopher A. Beck
James L. Barlowt
*Also admitted in West Virginia
**Also admitted in West Virginia and Ohio
(Also admitted in New York and New Jersey
March 13, 2008
Joseph Hitchings, Esquire
4807 Jonestown Road
Suite 148
Harrisburg, PA 17109
Phone (412)429-5842
Toll Free (866) 521-5842
Fax (800) 830-1822
Writer's Direct Dial (412)429-5844
e-mail.- iamhariAsafeco.com
Re: Dorothy Kelley v. Daniel Inderbitzen, et al.
Docket No. 07-5333 Civil Term (Cumberland County. CCP)
Dear Mr. Hitchings:
As you may recall, by correspondence dated January 15, 2008, I forwarded to you Interrogatories
and Request for Production of Documents directed to your client. As of this date, I have not
received your responses. Please forward your client's discovery responses within ten days of the
date of this letter or contact me within this time frame to advise as to when discovery responses
will be provided so as to avoid the necessity of a Motion to Compel.
Your anticipated cooperation is greatly appreciated.
Sincerely,
es W. Harvey, Esq
JWH/lam
cc: Robert Goodall
Daniel Inderbitzen
Melissa Dearman - 5855 8918 2015
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
MOTION TO COMPEL was served by U.S. First Class Mail, postage prepaid, this
18th day of June, 2008, upon the following counsel of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
WILLIAM C SHEN, ESQ IRE
JAMES W. HARVEY, ESQUIRE
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JUN 2 4 2
DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
DOCKET NO. 07-5333 Civil Term
V.
CIVIL ACTION - LAW
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a JURY TRIAL BY DEMAND
GOODALL POOLS, INC.,
Defendants
ORDER
tl?
On this day of -S' > nt,, , 2008, it is hereby ordered that
within thirty (30) days, plaintiff, DOROTHY M. KELLEY, shall provide defendants,
DANIEL INDERBITZEN and GOODALL POOLS, INC., with Answers to Interrogatories
and Responses to Request for Production of Documents.
BY THE COURT,
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DOROTHY M. KELLEY,
Plaintiff
v.
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THE COURT OF COMMON PLEAS
tCEU?p BE, LAND COUNTY, PENNSYLVANIA
NO. 07-5333 Civil Term
CIVIL ACTION - LAW
JURY TRIAL BY DEMAND
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC.,
Defendants
PRAECIPE TO ENTER APPEARANCE
To the Prothonotary:
Please enter my appearance for DANIEL INDERBITZEN and GOODALL
POOLS, INC., Defendant in the above-captioned matter.
LAW OFFICES OF JAMES W. HARVEY
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WILLIAM C?ACLISHEN, ESQUIRE G (rgrc?
Attorney for DANIEL INDERBITZEN and
GOODALL POOLS, INC., Defendants
Attorney PA ID No.: 39349
Rosslyn Commons Bldg., 3rd Fl.
333 Baldwin Road
Pittsburgh, PA 15205
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
PRAECIPE TO ENTER APPEARANCE was served by U.S. First Class Mail,
postage prepaid, this 18th day of June, 2008, upon the following counsel of record:
Joseph L. Hitchings, Esquire
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
Attorney for Plaintiff
ILLIAM C. ISHEN, ESQUIRE
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ROLF E. KROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone: [717] 975-8114 Direct: (717) 760-7502 Attorneys for Defendant:
Fax: [717] 975-8124 Daniel Inderbitzen and
E-Mail: rkroll@margolisedelstein.com Goodall Pools, Inc.
DOROTHY KELLY, : IN THE COURT OF COMMON PLEAS
Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V.
DOCKET NO. 07-5333
DANIEL INDERBITZEN, CAB EAST,
d/b/a GOODALL POOLS, INC.
Defendants. : JURY TRIAL DEMANDED.
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Kindly enter my appearance on behalf of Defendants, Daniel Inderbitzen
and Goodall Pools, Inc. , in the above-captioned matter.
Date:
Respectfully submitted,
MARG IS DELSTEIN,
By:
R E. KR , SQUIRE
PA. Attorne .D. No. 47243
Attorney for Defendant,
DANIEL INDERBITZEN and
GOODALL POOLS, INC.
3510 Trindle Road
Camp Hill, PA 17011
(717) 760-7502
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing
PRAECIPE TO ENTER APPEARANCE on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the
v?lri day of , 2008, and addressed as follows:
Joseph L. Hitchings, Esquire
McShane & Hitchings, LLC
4807 Jonestown Road, Suite 148
Harrisburg, PA 17109
MARGOLIS EDELST IN
oAnn E. Nelson, Se retary
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LAURALEE B. BAKER, ESQUIRE
Pa. Supreme Court I.D. No. 58874
ROLF E. KROLL, ESQUIRE
Pa. Supreme Court I.D. No. 47243
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone: [717] 975-8114 Direct: (717) 760-7502 Attorneys for Defendants:
Fax: [717] 975-8124 Daniel Inderbitzen and
E-Mail: rkroll@margolisedelstein.com Goodall Pools, Inc.
DOROTHY KELLY, : IN THE COURT OF COMMON PLEAS
Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V.
DOCKET NO. 07-5333
DANIEL INDERBITZEN, CAB EAST,
LLC d/b/a GOODALL POOLS, INC.
Defendants. : JURY TRIAL DEMANDED.
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Kindly enter my appearance on behalf of Defendants, Daniel Inderbitzen and
Goodall Pools, Inc. , as co-counsel in the above-captioned matter.
Respectfully submitted,
Date: 9 01
MARGOLIS EDELSTEIN
By: ""I - ( ?
EE B. BAKER, ESQUIRE
PA. Attorney I.D. No. 58874
ROLF E. KROLL, ESQUIRE
PA. Attorney I.D. No. 47243
Attorney for Defendants,
DANIEL INDERBITZEN and GOODALL
POOLS, INC.
3510 Trindle Road
Camp Hill, PA 17011
(717) 760-7504
r?
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing
PRAECIPE TO ENTER APPEARANCE on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the
9th day of January, 2009, and addressed as follows:
Joseph L. Hitchings, Esquire
Rossmoyne Business Center
5000 Ritter Road, Suite 202
Mechanicsburg, PA 17055
MARGOLIS EDELSTEIN
By:
Vicki A. Bolinger
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DOROTHY KELLY, : IN THE COURT OF COMMON PLEAS
Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V.
DOCKET NO. 07-5333
DANIEL INDERBITZEN, CAB EAST,
d/b/a GOODALL POOLS, INC.
Defendants. : JURY TRIAL DEMANDED.
PRAECIPE FOR WITHDRAWAL APPEARANCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Kindly withdrawal my appearance on behalf of Defendants, Daniel Inderbitzen
and Goodall Pools, Inc. , in the above-captioned matter.
Respectfully submitted,
Date:
By:
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing
PRAECIPE TO FOR WITHDRAWAL OF APPEARANCE on all counsel of record by
placing the same in the United States mail at Camp Hill, Pennsylvania, first-class
postage prepaid, on the 'W day 2009, and addressed
as follows:
Joseph L. Hitchings, Esquire
Rossmoyne Business Center
5000 Ritter Road, Suite 202
Mechanicsburg, PA 17055
MARGOLIS EDELSTEIN
0 nn E. Nelson, Sec tary
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DOROTHY M. KELLEY,
Plaintiff
V.
DANIEL INDERBITZEN,
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: DOCKET NO.: 07-5333 CIVIL TERM
CIVIL ACTION -LAW
JURY TRIAL DEMANDED
PRAECIPE TO SETTLE AND DISCONTINUE
TO THE CUMBERLAND COUNTY PROTHONOTARY:
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Please mark the above captioned action settled and discontinued with prejudice.
Respectfully Submitted,
Date: `{ - -?2 -10_
Law Office of Joseph L. Hitchings
Joseph L. Hitching-, ire
Attorney I.D.# 65551
5000 Ritter Road, Suite 202
Rossmoyne Business Center
Mechanicsburg, Pennsylvania 17055
Telephone: (717) 458-8123
Fax: (717) 790-6019
Attorney for Plaintiff
DOROTHY M. KELLEY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. DOCKET NO.: 07-5333 CIVIL TERM
DANIEL INDERBITZEN, CIVIL ACTION -LAW
CAB EAST, LLC, d/b/a
GOODALL POOLS, INC, JURY TRIAL DEMANDED
Defendants
CERTIFICATE OF SERVICE
I, Joseph L. Hitchings, Esquire, hereby certify that the following service has been
completed in compliance with the Pennsylvania Rules of Civil Procedure:
Via United States first class mail postage pre-paid
Lauralee B. Baker, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17011
Respectfully submitted,
LAW OFFICE OF JOSEPH L. HITCHINGS
Vttomey eph L. Hatchings, Esq ' e
ID# 65551
5000 Ritter Road, Suite 202
Mechanicsburg, Pennsylvania 17055
Telephone: (717) 458-8123
Fax: (717) 790-6019
Attorney for Plaintiff