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Home My WebLink About07-5600PAGE 1 REPORT : ZDRDOCT First Judicial District RUN DATE 09/12/07 USER ID: JPM CIVIL DOCKET REPORT RUN TIME 01:06 PM CASE ID 070201727 . ------------------------------------------------- -- CASE NUMBER CASE CAPTION 070201727 KINZLER ETAL VS SMITH TRANSPORT INC ETAL FILING DATE COURT LOCATION JURY 20-FEB-2007 JE CH J CASE TYPE: MOTOR VEHICLE ACCIDENT TATTUS: TRANSFER TO OTHER JURISDICTION Seg # Assoc Expn Date Type ID Party Name / Address & Phone No. 1 APLF A202849 CARTER, JOHN W 36 S HANOVER ST CARLISLE PA 17013 (717)249-0900 2 1 PLF @5671882 KINZLER, DAVID 707 DOUBLIN GAP RD NEWVILLE PA 17241 3 1 PLF @5671883 KINZLER, KAY 707 DOUBLING GAP RD NEWVILLE PA 17241 4 7 DFT @5671884 SMITH TRANSPORT INC 331 E CLOSSON RD ROARING SPRING PA 16673 5 7 DFT @5671886 WALSH, THOMAS M 11741 DENMAN RD PHILADELPHIA PA 19154 6 03-MAY-07 TL J359 TERESHKO, ALLAN L 231 CITY HALL PHILADELPHIA PA 19107 (215)686-7324 7 ADFT A33733 LEIGHT, ROBERT R THE THIRTY-EIGHTH FLOOR ONE OXFORD CENTRE PITTSBURGH PA 15219 (000)263-2000 8 TL J280 MANFREDI, WILLIAM J. 510 CITY HALL PHILADELPHIA PA 19107 (215)686-4216 Filing Date / Time Docket Entry Date Entered REPORT : ZDRDOCT First Judicial District USER ID: JPM CIVIL DOCKET REPORT CASE ID 070201727 Filing Date / Time Docket Entry 20-FEB-07 10:24:21 ACTIVE CASE 20-FEB-07 12:34:44 COMMENCEMENT CIVIL ACTION JURY 20-FEB-07 12:34:44 WAITING TO LIST CASE MGMT CONF 20-FEB-07 12:34:44 SHERIFF'S SURCHARGE 2 DEFTS 20-FEB-07 12:34:44 JURY TRIAL PERFECTED 20-FEB-07 12:34:44 PRAE TO ISSUE WRIT OF SUMMONS PRAECIPE TO ISSUE WRIT OF SUMMONS FILED SUMMONS ISSUED. PAGE 2 RUN DATE 09/12/07 RUN TIME 01:06 PM Date Entered 20-FEB-07 21-FEB-07 CARTER, JOHN W 21-FEB-07 CARTER, JOHN W 21-FEB-07 CARTER, JOHN W 21-FEB-07 CARTER, JOHN W 21-FEB-07 CARTER, JOHN W WRIT OF 07-MAR-07 16:04:35 AFFIDAVIT OF SERVICE FILED 07-MAR-07 OF SUMMONS BY PERSONAL SERVICE UPON THOMAS WALSH ON 1-MAR-07. 20-MAR-07 12:11:00 REINSTATE/REISSUE CIVIL ACTION 21-MAR-07 CARTER, JOHN W PREACIPE TO REISSUE WRIT OF SUMMONS FILED. WRIT REISSUED. 02-APR-07 15:29:23 ENTRY OF APPEARANCE FILED 04-APR-07 LEIGHT, ROBERT R ENTRY OF APPEARANCE OF ROBERT R. LEIGHT FILED ON BEHALF OF DFT SMITH TRANSPORT INC., AND THOMAS M. WALSH. 02-APR-07 15:29:23 RULE TO FILE COMPLAINT 04-APR-07 LEIGHT, ROBERT R PRAECIPE AND RULE FILED UPON PLAINTIFF(S) TO FILE A COMPLAINT WITHIN TWENTY (20) DAYS OR SUFFER JUDGMENT OF NON PROS FILED BY SMITH TRANSPORT INC., AND THOMAS M. WALSH. 05-APR-07 13:52:19 ATTEMPTED SERVICE - NOT FOUND 09-APR-07 NOT FOUND AS TO DEFT SMITH TRANSPORT INC ON 26-FEB-07. 23-APR-07 09:55:00 REINSTATE/REISSUE CIVIL ACTION 24-APR-07 CARTER, JOHN W PREACIPE TO REISSUE WRIT OF SUMMONS FILED. WRIT REISSUED. 01-MAY-07 16:42:17 LISTED FOR CASE MGMT CONF 01-MAY-07 PAGE 3 REPORT : ZDRDOCT First Judicial District RUN DATE 09/12/07 USER ID: JPM CIVIL DOCKET REPORT RUN TIME 01:06 PM CASE ID 070201727 Filing Date / Time Docket Entry Date Entered 03-MAY-07 00:01:31 NOTICE GIVEN 03-MAY-07 09-MAY-07 09:17:51 CONTINUANCE BY AGREEMENT GRNTD 09-MAY-07 09-MAY-07 09:18:10 LISTED FOR CASE MGMT CONF 09-MAY-07 10-MAY-07 14:40:00 ACCEPTANCE OF SERVICE FILED 15-MAY-07 OF WRIT OF SUMMONS BY PERSONAL SERVICE UPON THOMAS M. WALSH C/0 ROBERT R. LEIGHT, ESQUIRE ON 04-30-07. 11-MAY-07 00:01:35 NOTICE GIVEN 11-MAY-07 12-JUN-07 11:25:00 RULE TO FILE COMPLAINT 13-JUN-07 LEIGHT, ROBERT R PRAECIPE AND RULE FILED UPON PLAINTIFF(S) TO FILE A COMPLAINT WITHIN TWENTY (20) DAYS OR SUFFER JUDGMENT OF NON PROS FILED BY SMITH TRANSPORT INC AND THOMAS M. WALSH. 18-JUN-07 10:06:31 CASE MGMT CONFERENCE COMPLETED 18-JUN-07 SULLIVAN, JOAN 18-JUN-07 10:06:31 CASE MANAGEMENT ORDER ISSUED 18-JUN-07 CASE MANAGEMENT ORDER EXPEDITED TRACK - AND NOW, 18-JUN-2007, it is Ordered that: 1. The case management and time standards adopted for expedited track cases shall be applicable to this case and are hereby incorporated into this Order. 2. All discovery on the above matter shall be completed not later than 05-NOV-2007. 3. Plaintiff shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial to all other parties not later than 05-NOV-2007. 4. Defendant and any additional defendants shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial not later than 03-DEC-2007. 5. All pre-trial motions shall be filed not later than 03-DEC-2007. 6. A settlement conference may be scheduled at any time after 03-DEC-2007. Prior to the settlement conference all counsel shall serve all opposing counsel and file a settlement memorandum containing the following: (a) A concise summary of the nature of the case if plaintiff or of the defense if defendant or additional defendant;(b) A statement by the plaintiff or all damages accumulated, including an itemization of injuries and all special damages claimed by categories and amount; (c) Defendant shall identify all applicable insurance carriers, together with applicable limits of liability. 7. A pre-trial conference will be scheduled any time after 04-FEB-2008. Fifteen days prior to pre-trial PAGE 4 REPORT : ZDRDOCT First Judicial District RUN DATE 09/12/07 USER ID: JPM CIVIL DOCKET REPORT RUN TIME 01:06 PM CASE ID 070201727 Filing Date / Time Docket Entry Date Entered conference, all counsel shall serve all opposing counsel and file a pre-trial memorandum containing the following: (a) A concise summary of the nature of the case if plaintiff or the defense if defendant or additional defendant; (b) A list of all witnesses who may be called to testify at trial by name and address. Counsel should expect witnesses not listed to be precluded from testifying at trial; (c) A list of all exhibits the party intends to offer into evidence. All exhibits shall be pre-numbered and shall be exchanged among counsel prior to the conference. Counsel should expect any exhibit not listed to be precluded at trial; (d) Plaintiff shall list an itemization of injuries or damages sustained together with all special damages claimed by category and amount. This list shall include as appropriate, computations of all past lost earnings and future lost earning capacity or medical expenses together with any other unliquidated damages claimed; and (e) Defendant shall state in position regarding damages and shall identify all applicable insurance carriers, together with applicable limits of liability; (f) Each counsel shall provide an estimate of the anticipated length of trial. 8. It is expected that the case will be ready for trial 03-MAR-2008, and counsel should anticipate trial to begin expeditiously thereafter. 9. All counsel are under a continuing obligation and are hereby ordered to serve a copy of this order upon all unrepresented parties and upon all counsel entering an appearance subsequent to the entry of this order. ...BY THE COURT: WILLIAM J. MANFREDI, J. 18-JUN-07 10:06:31 LISTED FOR SETTLEMENT CONF 18-JUN-07 18-JUN-07 10:06:32 LISTED FOR PRE-TRIAL CONF 18-JUN-07 18-JUN-07 10:06:32 LISTED FOR TRIAL 18-JUN-07 29-JUN-07 11:01:00 COMPLAINT FILED NOTICE GIVEN 03-JUL-07 CARTER, JOHN W COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. IT IS FURTHER ORDERED THAT THE PROTHONOTARY OF THE PHILADELPHIA COURT OF COMMON PLEAS, CIVIL DIVISION, SHALL TRANSFER THE FILE RELATING TO THE ABOVE-CAPTIONED MATTER THE CUMBERLAND PAGE 5 REPORT : ZDRDOCT First Judicial District RUN DATE 09/12/07 USER ID: JPM CIVIL DOCKET REPORT RUN TIME 01:06 PM CASE ID 070201727 Filing Date / Time Docket Entry Date Entered COUNTY PROTHONOTARY. 08-AUG-07 16:12:31 NOTICE GIVEN UNDER RULE 236 08-AUG-07 * * * End of Docket * * * e O w .rY . "j (7.' e t ?,,r 2Ni SEP 1 2 PM 1: 05 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COLS R O'T h1 Y PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. CIVIL DIVISION DOCKET NO.: 070201727 PETITION TO TRANSFER VENUE Filed on Behalf of Defendants Counsel of Record for this Party: Robert R. Leight, Esquire PA I.D. No. 33733 Pietragallo Bosick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 Q N N A p$ .Z' i IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 070201727 V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. PETITION TO TRANSFER VENUE TO THE PROTHONOTARY OF PHILADELPHIA COUNTY: Kindly transfer the above-captioned case to Cumberland County as per the attached Order of Court dated August 8, 2007. Respectfully submitted, PIETRAGALLO BOSICK & GORDON, LLP / A BY __/ Robert R. Leight, Esquire Counsel for Defendants John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire iutulakis -4earthlink net AgQrney I.D.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiff File No: 001727 Civil Action - Law V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 Defendants PURSUANT 0 PS RCP 236(b) AUG 0' 8 2007 FIRSTJUDICIAL D! RICT OF PA USER I'D... ORDER OF COURT fn AND NOW, this day of _, 2007, upon consideration of the Stipulation for Transfer of Jurisdiction to Cumberland County Court of Common Pleas filed by the above- captioned parties, it is hereby ORDERED AND DECREED that the above-captioned matter is TRANSFERRED TO THE CUMBERLAND COUNTY COURT OF COMMON PLEAS. w er ORDERED AND DECREED that the Prothonotary of the Philadelphia Court of as, Civil Division, shall transfer the file relating to the above-captioned matter to leland County Prothonotary. BY THE COURT, Judg Distribution: Jason P. Kutulakis, Esquire, 36 South Hanover Street, Carlisle, PA 17013 Robert R. Leight, Esquire, 38 h Floor, One Oxford Centre, Pittsburgh, PA' 15219 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing, PETITION TO TRANSFER VENUE was served via U.S. mail this 5 h day of September 2007, upon the following: Jason Kutulakis, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 (Attorneys for Plaintiffs) PIETRAGALLO, BOSICK & GORDON LLP By / . Robert R. Leight, Esqui e CD cti E Y nt L F- r.L LAJ d?Z CA- C=3 O N ot John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire jkutulakis(&earthlink.net Attorney I.D.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler IN THE COURT OF (COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiff V. ; Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 Defendants ORDER OF COURT COPIES SENT PURSUANT TO PaAC,P. 236(b) AUG 0 6 2007 FIRSTJUDICIALDI PA ICTOF s USER I.D 4ry AND NOW, this F day of , 2007, upon consideration of the Stipulation for Transfer of Jurisdiction to Cumberland County Court of Common Pleas filed by the above- captioned parties, it is hereby ORDERED AND DECREED that the above-captioned matter is File No: 001727 Civil Action - Law TRANSFERRED TO THE CUMBERLAND COUNTY COURT OF COMMON PLEAS. It is further ORDERED AND DECREED that the Prothonotary of the Philadelphia Court of Common Pleas, Civil Division, shall transfer the file relating to the above-captioned matter to Cumberland County Prothonotary. BY THE COURT, Judg Distribution: Jason P. Kutulakis, Esquire, 36 South Hanover Street, Carlisle, PA 17013 Robert R. Leight, Esquire, `38t` Floor, One Oxford Centre, Pittsburgh, PA 15219 quo o1zoo7 -NUNN 5ld /??rvrizr??1? ?? John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire ikutulakisna.earthlink.net Attorney LD.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler : 707 Doubling Gap Road Newville, PA 17241 p2 D D 7 Plaintiff File No: 001727 Civil Action - Law V. Smith Transport, Inc. : 331 East Closson Road ' Roaring Spring, PA 16673 and u <? Thomas M. Walsh 3512 Carnarvon Avenue : -< Bristol, PA 19007 C.; Defendants STIPULATION FOR TRANSFER OF JURISDICTION TO CUMBERLAND COUNTY COURT OF COMMON PLEAS AND NOW, this 2Llay of July, 2007, comes all the parties in the above-captioned matter and respectfully enter into this Stipulation to have the above-captioned matter transferred from Philadelphia County to Cumberland County Court of Common Pleas as follows: 1. A Writ of Summons was filed in the Philadelphia County Court of Common Pleas in a timely manner. 2. At the time of filing, Plaintiffs had a good faith belief that Defendant, Walsh, resided in Philadelphia County. 3. Service was made upon both Defendant, Smith Transport, Inc., and Defendant, Walsh. 4. A case management conference was held before this Honorable Court on June 18, 2007. 5. Counsel for all parties appeared at the case management conference. 6. All parties agree that Defendant Walsh resides in Bucks County. 7. All parties agree that Defendant, Smith Transport, Inc., is located in Blair County. 8. All parties agree that both Plaintiffs live in Cumberland County. 9. All parties agree that the vehicle accident at issue which gave rise to the within action occurred in Cumberland County, Pennsylvania. 10. All parties agree that this matter should be removed to the Cumberland County Court of Common Pleas. 11. All parties agree that this removal is being done in good faith and cooperation and shall not be held against any of the parties. 12. All parties agree that this matter does not prejudice them. 13. All parties agree to follow in good faith the case management schedule set forth by the Philadelphia Court of Common Pleas to the best of their ability. WHEREFORE, Counsel for the parties hereto, intending to be legally bound by the terms hereof, set forth their hands and seals the day and year hereinafter mentioned. Date !6 0 Date Jasi6n P. for Plaintiffs o rt R. Leight, s e 4 Attorney for Defend is CERTIFICATE OF SERVICE AND NOW, this day of July, 2007, I, Jason P. Kutulakis, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing STIPULATION FOR TRANSFER OF JURISDICTION TO CUMBERLAND COUNTY COURT OF COMMON PLEAS by First Class U.S. Mail addressed to the following: Robert R, Leight, Esquire Pietragallo Bosick & Gordon, LLP 38t.h Floor, One Oxford Centre Pittsburgh, PA 15419 is, Esquire QUA ?4?G ' ? Ate ? ? ' 23 2 PRO ;s: A john W. Garter, Esquire jwilliamcarter@earthlmk.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire net e I.D.#: 80411 ? Attorny Abom & Kutulalds 36 South Hanover Street Carlisle, PA 17013 Client Name: David and Kay Kinzler (717) 249-0900 T OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA IN THE COUR CIVIL DIVISION, David and Kay Kinzler 707 Doubling Gap Road Nevwille, PA 17241 Plaintiff V. Smith Transport, Inc.. 331 East Closson Road Roaring Spring, PA 16673 and Defendant(s) .73 ;v File No: 070261727 Civil Action- Law -< R P .C VIL ACTION COMPLAI NOTICE You have been sued in court U you wish to defend YOU against the claims set forth in' the folla win ysPages r the mast take actsDa within twenty (20) afte . written Uring complaint and notice are served, by"and filing "tang appearance personally or by attorney with the court your defenses or objections to the claims set r. ned that forth against you_ You are war and a j j youudgment.m ent d oso out ap be the case may proceed without YOU further notice for entered against you by tilt court without . any money claimed in the complaint or for any other claim or relief requested by the Plam? You may lose money or property or other rights important to you. YOU SHOULD TA1? TffiS PAPL3tTO YOURLA RAT ONCE. 17 YOU DO NOT HAVE A LAWYER, - TO O>? ?SETFORTHBELOW ORT11"HONETHE TMs OFFICE CAN PROVIDE YOU WITH. JNFORMA.T10N ABOUT HIRING A LA.WYM IF YOU CANNOT AFFORD TO HIRE A L kWy= THIS OFFICE MAY -BE ABLE 'rO PROVIDE YOU WITH INFORMATION ABOUT AGENC>ES THAT MAY OFFER LEGAL SER oCRESNTT FEE. G1BLE PERSONS AT A RED W?YF?? CE SERVICE One Reading Center, Phila., PA 19107 (7,1,):238-1701 AVLSO Le han dem&ndado a usted on la Corte. Si usted quiere demandas ezpuesbs en 'as plows ddU,en .s,de t e 20 dies de lazo al p si,,guients,usted tine veinte aotiffcsclan• Race falta is fecha de Is demands y o en persona o con un asentar una compas'encia escrits sus defensas abogado y entregar a la Corte an forma escria sus persona. o sus objecione u demand" ldemanda en contra suya Sea medidas y p Adamas, In corte puede sinm previo aviso o notificacion. ere quo usted decidir a favor del demsndanto y eq Cumpla con todas las provisl n otros de ethos puede perder dinero o sus p p edades n importantes pars usted. IyEVE' ESTA DEMAN NO 'TAtEI` E A.BOGADO AgAGADO O )?DIATAMENTE• DE ADO SINO TIENE EL DINERO SUFIC?TE TAL SERVICO, VAYAEN PERSONA DAL 1 TELEFONO A LA OFICINA. CUY ENCUENTR:4 ESCRTTA A BAJO PARAANCIA DONDE SE pUEDE. CONSEGU LEGAL. CIA. LEGAL SERVICIO DE REFE1tEN One Reading 07 phiiadelpbia, (215) 238-1701 - . _ John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire ikutulakisna earthlink.net Attorney I.D.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 Client Name: David and Kay Kinzler (717) 249-0900 COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA IN THE COU CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiff V. Smith Transport, Inc- 3 31 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 11741 Denman Road Philadelphia, PA 19154-3615 Defendants File No: 070201727 0 Civil Action - Law O Jury Trial Demanded 0 rV %.D -r: TO 1EFENDAN"1'? Kivu i n j ?•.?_ ----- NOTICE TO DEFEND AND CLAIM RIGHTS 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 our defenses served, enses by or objections entering a written to the appearance per sonally or by an attorney and filing in writing with the court y rwithout you and a claims set forth against y ou. You are warned that if you fail to do so the notice for case any mamoney claimed in the complaint against you by the court without further or other rights judgment may be entered y laintiff. You may lose money or property or for any other claim or relief requested by the p important to you. Respectfully submitted, m & Kutulakis, L.L.P. J n P. Kutulakis, Esquire Attorney I.D.: 80411 36 South Hanover Street Carlisle, PA 17103 (717) 249-0900 Attorney for Plaintiffs COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA T CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc- 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 14007, Defendants File No: 070201727 Civil Action - Law Jury Trial Demanded COMPLAINT AND NOW, comes plaintiffs, David Kinzler and Kay Kinzler, by and through their undersigned counsel, John W. Carter, Esquire and Jason P. Kutulakis, Esquire, of Abom and Kutulakis, LLP, and file the following complaint: David Kinzler and Kay Kinzler (Plaintiffs), husband and wife, are adult individuals who 1. reside at 707 Doubling Gap Road, Newville, Cumberland County, Pennsylvania. V--t , , a 2. On February 25, 2005, plaintiffs were married to one another. 3. Plaintiffs resided at 707 Doubling Gap Road, Newville, Cumberland County, Pennsylvania on February 25, 2005. . Defendant Smith Transport, Inc. (hereinafter referred to as "Smith Transport") is a 4 Pennsylvania Corporation with corporate offices located at 331 East Closson Road, Roaring who resides or conducts business at 3512 Carnarvon Avenue, Bristol, Bucks County, Spring, Blair County, Pennsylvania* Defendant Thomas M. Walsh, (hereinafter referred to as "Walsh") is an adult individual 5. Pennsylvania. 6. On February 25, 2005, Walsh was employed by Smith Transport. 7. Walsh was an agent, servant, employee or representative of Smith Transport on February 25, 2005. At all times relevant and material to this cause of action, Smith Transport is and has been 8. in the business of transport. 9. Smith Transport requires all drivers of commercial motor vehicles (hereinafter referred to as "commercial motor vehicle" or "tractor-trailer") to possess a valid Commercial Driver's License (CDL). .On or about February 25, 2005, Walsh was operating a Smith Transport, Inc. tractor- 10trailer on Route 11, Ritner Highway, in Cumberland County, Pennsylvania. 11. The vehicle identification number of the Smith Transport tractor was 1FUJA6CK95LU68051 with Illinois license plate 838792. See, Crash Detail Report, attached hereto as Exhibit A. 'A?' t Ve 12. Smith Transport is responsible for ensuring Walsh was capable of safely driving its commercial motor vehicle on the roadways of Pennsylvania. 13. Smith Transport knew or should have known of Walsh's driving record on February 25, 2005. ection of the Smith Transport commercial motor vehicle . Walsh is responsible for the insp 14 before he departs for delivery. See, 49 C.F.R. §392.7, attached hereto as Exhibit B. 15. Walsh is required to report any malfunctions to Smith Transport immediately. 16. Smith Transport is responsible for the inspection. of the Smith Transport commercial vehicle which was driven by Walsh on February 25, 2005. 17. Smith Transport maintains shop and maintenance data about tractor and trailer repairs. Smith Transport tractor-trailer driven by Walsh on February 25, 2005, was painted 18. The solid black with the Smith Transport logo on the sides of the trailer. 19. The Smith Transport trailer had lights installed only on the four corners of the trailer on February 25, 2005- 20. The investigating state police officer found the driver" s side, rear light to be inoperable upon arriving at the scene of the accident. 21. Plaintiff did not see any trailer lights as he approached defendant's commercial motor carver. 22. It is believed and therefore averred that the Smith Transport trailer did not have adequate 25, 2005. operational lights on the drivers side of the trailer driven by Walsh on February 23. It is believed and therefore averred that the Smith Transport trailer's driver's side/rear light was inoperable when Walsh backed across Route 11 toward Mooredale Road on February 25, 2005. 24. Smith Transport is required to maintain a record of duty status, also known as a driver's log for each driver and each tractor trailer rig. Smith Transport maintained a driver's log relating to Walsh and the vehicle owned by 25. Smith Transport which was driven by Walsh on February 25, 2005. 26. Smith Transport requires all drivers to maintain a record of duty status, also known as a driver's log. 27. Walsh is required to maintain a record of duty status, known as a driver's log. 28. Smith Transport requires all drivers to perform a vehicle inspection prior to driving of all tractor and trailers. 29. Smith Transport inspected both the tractor and trailer prior to Walsh departing from Smith Transport's depot. both the tractor and trailer prior to departing from Smith . Walsh was required to inspect 30 Transport's depot on February 259 2005. 31. Walsh admitted to Pennsylvania State Trooper Henneman that the trailer lighting at issue was malfunctioning upon Walsh's departure from Smith Transport's depot. 32. The Smith Transport tractor-trailer driven by Defendant Walsh was required to possess safety equipment. See, 49 C.F.R. §393.95 attached hereto as Exhibit C. 33. Prior to departing, Walsh is required to inspect the emergency equipment and confirm that the requisite equipment is on board. 34. Walsh initiated the log upon departure from Smith Transport's depot for the trip on February 25, 2005. 35. Walsh had a valid commercial driver's license on February 25, 2005. t ..O_ V , 36. On or about February 25, 2005, Smith Transport instructed Walsh to transport a load of freight from Smith Transport's depot to Ross Distribution, 1707 Shearer Drive, Carlisle, PA 17013. 37. On February 25, 2005, Walsh was driving the tractor and trailer owned by Smith Transport. 38. Smith Transport did not provide turn by turn' directions to Walsh on February 25, 2005. 39. Walsh did not have turn by turn directions on February 25, 2005, when he arrived in Carlisle, Pennsylvania. 40. Prior to departing Smith Transport's depot, Walsh did not ask for or receive turn by turn directions. 41. Walsh failed to follow turn by turn directions on February 25, 2005. 42. Walsh exited off of Interstate Route 81 onto Route 465 North. 43. Walsh traveled approximately 3/4 mile north on Route 465, an undivided two-lane highway. 44. Route 11 is clearly marked well in advance of its intersection with Route 465. See, photo of Route 465, attached hereto as Exhibit D. 45. The north and south bound directions of Route 11 are clearly marked at the intersection of Route 11 and Route 465. See, picture of the intersection of Rt 465 and Rt 11 facing North from Rt 465, attached hereto as Exhibit E. 46. At the intersection of Route 11 and Route 465, Walsh turned left onto Route I 1 South (also known as Ritner Highway). 47. Walsh should have turned right onto Route I 1 North, an undivided two-lane highway. of this averment are those which indicate which direction to travel, for ' turn directions for the purposes Turn by what distance to travel and which direction to turn at the appropriate intersection. 'A- ? 48. Walsh traveled approximately 3.5 miles South on Route 11. 49. Walsh became lost and was unable to locate his destination. 50. Defendant passed Cumberland Valley Memorial Gardens, 1921 Ritner Highway, Carlisle, PA 17013. See, picture of the entrance thereof, attached hereto as Exhibit F. 51. Cumberland Valley Memorial Gardens has an entrance to the north side of Route 11, with adequate access to safely turn in and around for the Smith Transport vehicle driven by Walsh. See, picture thereof, attached hereto as Exhibit G. 52. Defendant passed Clouse Trucking, 2075 Ritner Highway, Carlisle, PA 17013. See, picture thereof, attached hereto as Exhibit H. 53. Clouse Trucking has an entrance to the north side of Route 11, with adequate access to safely turn in and around for the Smith Transport vehicle driven by Walsh. See, picture thereof, attached hereto as Exhibit I- 54. Defendant passed Cumberland Golf Club, 2395 Ritner Highway, Carlisle, PA 17013. See, picture thereof, attached hereto as Exhibit J. 55. Cumberland Golf Club has an entrance to the north side of Route 11, with adequate access to safely turn in and around for the Smith Transport vehicle driven by Walsh. 56. Defendant did not utilize the cul de sac on Elton Drive, located just North of the intersection at Mooredale Road and Route 11. 57. The cul de sac has an entrance to the north side of Route 11, with adequate access to safely turn in and around for the Smith Transport vehicle driven by Walsh. See, picture thereof, attached hereto as Exhibit K- 58. At approximately 10:45 p.m., after just passing Mooredale Road, Walsh stopped his tractor trailer on the roadway of Route I 1 in the Roadway. 59. Walsh did not contact police prior to stopping on Route 11. 60. Walsh did not deploy any emergency traffic devices, such as flairs, reflective triangles or florescent pylons, after stopping on Route 11. 61. Walsh did not pull off onto the berm of Route 11 prior to stopping in the lane of travel. 62. It is believed and therefore averred that Walsh possessed a cellular telephone on February 25, 2005. 63. Walsh did not call Smith Transport for guidance or directions after turning left and traveling south on Route 11. 64. The Smith Transport vehicle driven by Walsh was equipped with a satellite communication system, Qualcomm, which permits a direct communication between Smith Transport and its drivers and timely knowledge of the location and status of each shipment. 65. Smith Transport did not contact Walsh when he made the wrong turn onto Route 11 southbound. 66. Smith Transport did not contact Walsh when he stopped on the roadway of Route 11. 67. Smith Transport did not contact Walsh as he backed across Route 11 toward Mooredale Road. 68. Walsh did not engage the emergency hazard lights when stopping on Route 11. 69. Walsh did not honk the Smith Transport vehicle's.air horn or traditional horn when stopped on Route 11. 70. Walsh backed across both lanes of the roadway blocking both directions of Route 11 at the Mooredale Road intersection in Cumberland County, Pennsylvania- 7 1. Walsh did not inspect the roadway prior to backing across Route 11 toward Mooredale Road. 'A Y 72. Walsh did not exit his vehicle prior to backing across Route 11 toward Mooredale Road. 73. Walsh did not contact police prior to backing across Route 11 toward Mooredale Road. 74. Walsh did not deploy any emergency traffic devices, such as flairs, reflective triangles or fluorescent pylons, before backing across Route 11 toward Mooredale Road. 75. Walsh did not engage the emergency hazard lights when backing across Route 11 toward Mooredale Road. 76. Walsh did not honk the Smith Transport vehicle's air hom or traditional horn when backing across Route 11 toward Mooredale Road. 77. Walsh did not flash his headlights when backing across Route 11 toward Mooredale Road. 78. Walsh did not observe any cars on Route 11 prior to backing across Route 11 toward Mooredale Road. 79. Walsh did not take any measures to warn Plaintiff that the Smith Transport vehicle was across Plaintiff's lane of travel. 80. Walsh admitted to the responding State Police Trooper that he had become lost and backed across Route 11. 81. Walsh was involved in a traffic accident with Plaintiff David Kinzler on February 25, 2005 at the intersection of Mooredale Road and Route 11 in Cumberland County, Pennsylvania. 82. Plaintiff David Kinzler was driving a 1996 Oldsmobile Cierra, VIN 1G3AJ55M5T6382506, owned by Plaintiffs on February 25, 2005. 83. Plaintiff was traveling northbound on Route 11 on February 25, 2005 enroute to work. 84. Plaintiff was in the correct lane of travel at the time of the accident. 85. Plaintiff was traveling at or below the speed limit for the time of day and weather conditions. 86. Plaintiff was wearing his seat belt at the time of the accident. 87. At approximately 10:45 p.m. on February 25, 2005, plaintiff was enroute to work when Defendant Smith Transport's commercial motor vehicle, driven by Defendant Walsh, backed across Plaintiff David Kinzler's lane of travel. 88. Plaintiff s and Defendant's vehicles collided. 89. Plaintiff s vehicle was totaled and sold for salvage. 90. Plaintiff David Kinzler was entrapped and emergency personnel had to extricate him from his vehicle. 91. There were no adverse weather conditions on the night of the accident. 92. There was no precipitation at the time of the accident, namely 10:45 p.m. on February 25, 2005. 93. The weather was clear at the time of the accident. 94. On February 25, 2005, there was no artificial street lighting at the intersection of Mooredale Road and Route 11 in Cumberland County, Pennsylvania. 95. On February 25, 2005, there were no traffic signals on Route 11 at or near the intersections of Route 11 and Mooredale Road, Cumberland County, PA. 96. Walsh is no longer employed by Smith Transport. 97. It is believed and therefore averred that on February 26, 2005, Smith Transport terminated Walsh's employment. 98. Walsh was cited by the Pennsylvania State Police for violation of 75 Pa.C.S.A.§ 3702(a), (limitations on backing), 75 Pa.C.S.A. § 3714 (careless driving) and 75 Pa.C.S.A. § 4107(b)(2) (left rear trailer ID marker light not functioning). See, Citations attached hereto as Exhibit L. 99. On April 20, 2005, Defendant Walsh appeared before Magisterial District Justice Cohick regarding the citation issued for violation of 75 Pa.C.S.A.§3702(a), 3714 and 4107(b)(2) and was found guilty. 100. Walsh failed to appeal the finding of guilt. 101. Plaintiff David Kinzler suffered serious physical. and mental injuries as a result of the accident which include, but are not limited to,: a. Left Hip dislocation with Femoral head fracture; b. Closed Head Injury with brain bruising, memory loss and concussion; c. Soft tissue damage and bruising d. Extensive pain and suffering; 102. Plaintiff David Kinzler was flown by Life-Lion to the Hershey Medical Trauma Center in Hershey, Pennsylvania. 103. Plaintiff David Kinzler underwent an Open Reduction, Internal Fixation surgery to repair the damage to his hip. 104. Plaintiff David Kinzler has ongoing physical and mental injuries and pain as a result of the accident. 105. Plaintiff David Kinzler suffers from post-concussion syndrome. 106. Plaintiff David Kinzler suffers from continuing pain as a direct result of the accident and the injuries he sustained. % I. 107. Plaintiff David Kinzler lost his job as a direct result of the accident and the injuries he sustained. 108. Plaintiff David Kinzler sustained loss of income, economic losses associated with traveling for follow-up treatment and rehabilitation and medical expenses. 109. Plaintiff David Kinzler suffered severe pain and suffering as a result of his injuries. 110. It is believed and therefore averred that Plaintiff David Kinzler will have life long complications as a result of the February 25, 2005, accident. COUNT I - NEGLIGENCE - WALSH 111. Paragraphs one (1) through one hundred ten (110) of this Complaint are incorporated herein by reference as though set forth in full. 112. Defendant had a duty at all times to operate his commercial motor vehicle in a safe manner and within the parameters set forth by both state and federal laws and regulations. 113. Defendant Walsh was negligent in failing to: a. adequately inspect the Smith Transport tractor prior to departure; b. adequately inspect the Smith Transport trailer prior to departure; c. ensure the Smith Transport tractor and trailer had adequate lighting to prevent a side-impact collision; d. ensure reflective tape/materials were affixed to the trailer to prevent a side-impact collision; e. report to Smith Transport the inappropriate lighting and reflective tape on its trailer; f. deploy emergency devices, flares, reflective triangles, etc.; g. call for assistance to the police; h. contact Smith Transport for assistance; i. obtain turn-by-turn directions; j. follow turn-by-turn directions; k. utilize existing roadways to turn around; 1. to maintain the direction of travel to locate a safe location to change directions; m. have his vehicle under proper and adequate control; n. observe Plaintiff's vehicle traveling north on Route 11; o. operate his vehicle in accordance with the existing traffic conditions and traffic controls; p. exercise the high degree of care required of a commercial motor carrier driving a tractor-trailer; q. yield the right-of-way to traffic already on the highway; r. observe oncoming traffic; s. proceed into an intersection in a safe manner; t. keep a proper look-out for approaching vehicles; u. yield the right-of-way to oncoming traffic; v. place flares, flags or other similar warning devices indicating a dangerous condition existing upon the highway; w. maintain the vehicle in a proper manner; x. yield half of the highway to oncoming traffic; y. keep his vehicle within the proper lane; z. inspect the roadway prior to backing his tractor trailer; ? r-- 1 . aa. proceed further on Route 11 in order to make a safe stop or turn; bb. utilize other roadways or parking areas, accessible prior to Mooredale Road; cc. proceed to the Interstate 81 interchange with Route 233, at the Newville exchange which is nearby Mooredale Road; dd. use any of the available roadways to make a circle to turn around; ee. pull to the side of the road or berm when he became lost; ff. use the cell phone to obtain proper directions from Smith Transport; gg. obtain proper directions prior to departure from Smith Transport's depot; hh. obtain or follow proper directions; ii. place traffic safety devices on the roadway prior to backing up and across both lanes of travel on Route 11; jj. activate his emergency flashers; kk. activate his air horn or traditional horn to warn plaintiff; 11. ensure proper vehicle lighting was operational and safe on February 25, 2005; mm. observe other traffic on Route 11; nn. operate his vehicle in accordance with the existing traffic conditions and traffic controls; oo. flash his tractor's headlights to warn Plaintiff that his tractor trailer was in Plaintiff s lane of travel. 114. Defendant Walsh was negligent: a. In operating a motor vehicle upon the highway at night without adequate lights; b. In operating a vehicle which Defendant knew or should have known was in a defective condition; ?s" to c. In operating a vehicle that Defendant knew or should have known had a malfunctioning trailer light; d. In backing across a highway; e. In operating his vehicle so as to create a dangerous situation for other vehicles on the roadway; f. In operating a motor vehicle without keeping it in a proper state of repair; g. In turning in such a manner not consistent with the road and weather conditions prevailing at the time; h. In turning in such a manner as to endanger other vehicles on the highway; i. In operating a vehicle in a careless manner and in a manner violating the Pennsylvania Motor Vehicle Code; j. In operating his vehicle in a reckless manner and in a manner violating the Pennsylvania Motor Vehicle Code; k. In operating his vehicle in a negligent manner and in a manner violating the Pennsylvania Motor Vehicle Code; 1. In otherwise operating said vehicle in a careless, reckless, and negligent manner and in a manner violating the Pennsylvania Motor Vehicle Code; m. In operating the vehicle in a manner not consistent with the road and weather conditions prevailing at the time in that he backed across both lanes of a major highway at night; n. In turning such a manner as to endanger other vehicles on the highway. 115. As a proximate result of the negligence, carelessness, and unlawfulness of defendants, together and individually, and each of them, and the resulting collision, as herein alleged, Plaintiff David Kinzler, was injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system and person, and among others sustained the following personal injuries: left hip dislocation with femoral head fracture, concussion and various bruises and scrapes, all of which have caused and continue to cause Plaintiff great mental, physical, and nervous pain and suffering. These injuries will result in some permanent disability to Plaintiff, David Kinzler. 116. Defendant Walsh knowingly acted in a willful and reckless manner by backing his commercial motor carrier across Route 11 onto an unlit intersection with Mooredale Road. 117. Defendant Walsh knowingly backed across Route 11 without deploying any emergency devices with sufficient distance to warn Plaintiff in a willful and reckless manner 118. Defendant Walsh knowingly stopped on a two lane highway and did so in a willful and wanton manner. 119. Defendant Walsh knowingly failed to deploy emergency devices and to adequately wain Plaintiff and other motorists of the hazard he had created in a willful, wanton and reckless manner. 120. Defendant Walsh knowingly failed to ensure that his trailer had adequate lighting and safety warnings to permit Plaintiff to see the trailer. WHEREFORE, Plaintiffs demand judgment against the Defendant Walsh in excess of the jurisdictional amount requiring arbitration, plus interest, costs, exemplary and punitive damages, delay damages and any other relief that this Court deems appropriate. COUNT II NEGLIGENT ENTRUSTMENT (SMITH TRANSPORT) 121. Paragraphs one (1) through one hundred twenty (120) of this Complaint are incorporated herein by reference as though set forth in full. ?" Ir 122. At all times herein mentioned, Walsh was the employee, agent, servant or representative of Defendant Smith Transport and in doing the things herein was acting within the purpose and scope of this agency and employment. 123. At all times herein mentioned, Walsh was the agent of Smith Transport and in doing the things herein was acting within the purpose and scope of this agency and employment. 124. It is believed and therefore averred that Smith Transport terminated Walsh's employment on February 26, 2005. 125. It is believed and therefore averred that Walsh had an accident 2 weeks prior to this accident while operating a tractor trailer. 126. Smith Transport knew of this previous accident when they gave Defendant Walsh permission and consent to operate the tractor trailer. 127. At all times herein mentioned, Walsh was driving and operating the tractor trailer at the direction of Smith Transport. 128. Walsh was driving and operating the tractor trailer with the consent, permission, and knowledge of Smith Transport. 129. Smith Transport had actual knowledge of Walsh's driving record on February 25, 2005. See, 49 C.F.R. §391.25 attached hereto as Exhibit M. 130. Smith Transport entrusted a commercial motor vehicle to Walsh whom they knew or should have known was incapable of operating said motor vehicle in a safe and lawful manner. 131. Smith Transport entrusted a commercial motor vehicle to Walsh whom they knew or should have known was an incompetent and unsafe driver. .; L, 132. Smith Transport entrusted a commercial motor vehicle to Walsh whom they knew or should have known was likely to use a motor vehicle in a manner that would create an unreasonable risk of harm to others. 133. Smith Transport entrusted a commercial motor vehicle to Walsh without undertaking adequate measures to ensure that the driver was capable of operating said motor vehicle in a safe and lawful manner. 134. As a proximate result of the negligence, carelessness, and unlawfulness of Defendant and the resulting collision, as herein alleged, Plaintiff David Kinzler, was injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system and person, and among others sustained the following personal injuries: left hip dislocation with femoral head fracture, concussion and various bruises and scrapes, all of which have caused and continue to cause Plaintiff great mental, physical, and nervous pain and suffering. These injuries will result in some permanent disability to Plaintiff. 135. As a proximate result of the negligence, carelessness, and unlawfulness of defendants, and each of them, and the resulting collision, as herein alleged, Plaintiff David Kinzler was injured and due to those injuries it is believed he will experience lifelong complications as a direct result thereof. WHEREFORE, plaintiffs demand judgment against the Defendant Smith Transport in excess of the jurisdictional amount requiring arbitration, plus interest, costs, exemplary and punitive damages, delay damages and any other relief that this Court deems appropriate. COUNT III - NEGLENCE PER SE 136. Paragraphs one (1) through one hundred thirty-five (135) of this Complaint are incorporated herein by reference as though set forth in full. 137. Defendant Walsh was subject to 49 C.F.R. §391, 392, 393, and 396. I , 138. Defendant Walsh operated a commercial motor vehicle for the purpose of transporting cargo for a fee in his course of employment with Defendant Smith Transport. 139. Defendant Walsh failed to comply with the aforementioned sections of the Federal Motor Carrier Safety Regulations. 140. Defendant Walsh's violations of the aforementioned Federal Carrier Safety Regulations were the direct and proximate cause of the accident of February 25, 2005, with Plaintiff. 141. Defendant Walsh's violation of the Federal Carrier Safety Regulations constitutes negligence per se. 142. As a direct and proximate cause of Defendant Walsh's negligence per se, plaintiff sustained serious bodily injuries. 143. As a direct and proximate cause of Defendant Walsh's negligence per se, plaintiff David Kinzler has incurred and will continue to incur costs, expenses, economic loss, significant pain and suffering and embarrassment. 144. As a direct and proximate cause of Defendant Walsh's negligence per se and the resulting collision, as herein alleged, Plaintiff David Kinzler, was injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system and person, and among others sustained the following personal injuries: left hip dislocation with femoral head fracture, concussion and various bruises and scrapes, all of which injuries have caused and continue to cause plaintiff great mental, physical, and nervous pain and suffering. These injuries will result in some permanent disability to plaintiff. WHEREFORE, plaintiffs demand judgment against defendants in an amount in excess of the jurisdictional amount requiring arbitration, plus interest, costs, exemplary damages, delay damages and any other relief that this Honorable Court deems to be appropriate. i, COUNT IV - LOSS OF CONSORTIUM Plaintiff, Kay Kinzler vs. Defendants Walsh and Smith Transport, Inc. 145. Paragraphs one (1) through one hundred forty-four (144) of this Complaint are incorporated herein by reference as though set forth in full. 146. Plaintiff Kay Kinzler suffered a loss of companionship from her husband David Kinzler as a direct result of the accident of February 25, 2005. 147. Plaintiff Kay Kinzler suffered a loss of sexual relations from her husband David Kinzler as a direct result of the accident of February 25, 2005. 148. Plaintiff Kay Kinzler suffered a loss of societal relations in that her husband could not assist in the maintenance of the home as a direct result of the accident of February 25, 2005 149. Plaintiff Kay Kinzler has suffered a loss of consortium as direct result of the accident of February 25, 2005. 150. As a proximate result of the negligence, carelessness, and unlawfulness of defendants, and each of them, and the resulting collision, as herein alleged, plaintiff Kay Kinzler, has experienced a loss of consortium with her husband David Kinzler. WHEREFORE, plaintiff, Kay Kinzler, demands judgment against defendants in an amount in excess of the jurisdictional amount requiring arbitration, plus interest, costs, exemplary damages, delay damages and any other relief that this Honorable Court deems to be appropriate. COUNT V - VICARIOUS LIABILITY 151. Paragraphs one (1) through one hundred fifty (150) of this Complaint are incorporated herein by reference as though set forth in full. 152. Defendant Smith Transport is a motor carrier as defined by 49 U.S.C.&13102(141. 153. Defendant Smith Transport is liable for Defendant Walsh's actions during the course of his employment pursuant to 49 U.S.C.&31301(7)(8). s , a , 154. At all times relevant hereto, Defendant Walsh was acting in the course and scope of his employment and as an agent, servant, employee and/or representative of Defendant Smith Transport. WHEREFORE, Plaintiffs demand judgment against the Defendant Smith Transport in excess of the jurisdictional amount requiring arbitration, plus interest, costs, exemplary damages, delay damages and any other relief that this Court deems appropriate. COUNT VI - NEGLIGENCE (SMITH TRANSPORT) 155. Paragraphs one (1) through one hundred fifty-four (154) of this Complaint are incorporated herein by reference as though set forth in full. 156. Defendant Smith Transport was negligent for failing to: a. have adequate lighting on tractor driven by Defendant Walsh; b. have adequate reflective tape or other material on trailer driven by Defendant Walsh; c. properly train Walsh regarding: i. safety when lost; ii. backing on roadways; iii. utilization of safety equipment; iv. staying in laned roadways; v. having accurate directions prior to departure; vi. calling Smith Transport for directions if lost; vii. stopping on roadways; viii. motor vehicle code of Pennsylvania (Title 75). d. have proper inspection policies that require its employees to ensure that both the truck and trailer have appropriate lighting and warning devices. ? , ? . e. in the alternative, have Defendant Smith Transport comply with its policies of inspection. 157. Defendant Smith Transport was negligent in: a. entrusting a motor vehicle to an individual it knew or should have known as incapable of operating said motor vehicle in a safe and lawful manner; b. entrusting a motor vehicle to an individual it knew or should have known as an incompetent and unsafe driver; c. entrusting a motor vehicle to an individual it knew or should have known was likely to use a motor vehicle in a manner that would create an unreasonable risk of harm to others; d. entrusting a motor vehicle to an individual without undertaking adequate measures to ensure that the driver was capable of operating said motor vehicle in a safe and lawful manner; e. failing to monitor Defendant Walsh's travels via their Qualcomm system or any other communication monitor systems; f. failing to make contact with Defendant Walsh when he turned south onto Route 11; g. failing to instruct Defendant Walsh not to stop on Route 11; h. failing to instruct Defendant Walsh to deploy emergency signals; i. failing to instruct Defendant Walsh to travel to a safe turn around destination; j. failing to instruct Defendant Walsh not to back across Route 11; k. failing to instruct Defendant Walsh to contact the police. 158. As a proximate result of the negligence, carelessness, and unlawfulness of defendants, and each of them, and the resulting collision, as herein alleged, plaintiff David Kinzler, was injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system and person, and among others sustained the following person injuries: left hip dislocation with femoral head fracture, concussion and various bruises and scrapes, all of which injuries have caused and continue to cause plaintiff great mental, physical, and nervous pain and suffering. These injuries will result in some permanent disability to plaintiff. 159. As a proximate result of the negligence, carelessness, and unlawfulness of defendants, and each of them, and the resulting collision, as herein alleged, plaintiff David Kinzler was injured and due to those injuries it is believed he will experience lifelong complications as a direct result thereof. WHEREFORE, plaintiffs demand judgment against the Defendant Smith Transport in excess of the jurisdictional amount requiring arbitration, plus interest, costs, exemplary and punitive damages, delay damages and any other relief that this Court deems appropriate. Respectfully submitted, mom & Kutulakis, L.L.P. Jason t. Kutula iis, Esquire AAtt .: 80411 J?13fi William Carter, iquire7(-- Attorney I.D.: 202849 36 South Hanover Street Carlisle, PA 17103 (717) 249-0900 Attorneys for Plaintiffs l I VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S. 54904, relating to unworn falsification to authorities. 6 a o Lqa? Date David Kinzler l ?y U lid Date Kay zler ?. A Crash Detail Report Page 1 of tate Reported Crashes - Detailed Crash Report Crash Date & Time: 02/25/2005, 22:45 As of May 25, 2007) Report State: PA Report #: PA510873400X Carrier Information Carrier Name SMITH TRANSPORT US DOT # 246204 Carrier Address 770 NORTH CHURCH MC # 156598 ELMURST SPRING, IL 60126 State Census # Crash Information # of Fatalities 0 # of Injuries 1 Towaway No # of Vehicles in Crash 2 Location Reporting Data Crash Date & Time 02/25/2005, 22:45 Report State PA Location ROUTE 0011 N Reporting Agency PENNDOT City WEST PENNSBORO TOWNSHIP Officer Badge # 8636 County CUMBERLAND Report # PA51087340OX Crash State PA Federally Recordable Yes State Reportable Yes Crash Environment Roadway Trafficway Weather Condition NO ADVERSE CONDITIONS Road Access Control NO CONTROL Light Condition DARK - NOT LIGHTED Road Surface Condition DRY Driver Information Age 48 Citation Issued Yes License State PA Valid License Yes Vehicle Information Identification Hazardous Materials Veh. Identification # 1 FUJA6CK95LU68051 HM Placards No Vehicle Plate # 838792 Release of Cargo No Vehicle License State IL Vehicl e Type Vehicle Configuration TRUCK/TRAILER Cargo Body Type VAN/ENCLOSED BOX Gross Vehicle Weight Gross Vehicle Weight Range MORE THAN 26,000 POUNDS http://Www.ai.volpe.dot. govISafeStatICrashDetaiRePOrt.asp?dot=246204&adate=02l2512... 6/13/2007 ?, s ' 392.7 Esta pagina an espahol Part 392: Driving of Motor Vehicles 0 U.S. Department of Transportation Keyword L Federal Motor Carrier Safety Administration tome Rules & Regulations Registration & Licensing Fors Safety & Security Facts & Research Cross Border Home > Rules & Regulations > All Regulations > 392.7 Search All - Overview Federal Regulations All Driver Vehicle Company FMCSA Hazmat Regulatory Guidance Ruiemakings and Notices Final Rules Interim Final Rules Proposed Rules Notices Topics of Interest Hours of Service (HOS) Hazardous Materials Medical Program NAFTA Rules Drug & Alcohol Testing Search All Regulations I for F_ ,,-- Examples: Medical Form, 391.53, 391 Page 1 o' L2 % All Regulations t Part 392 < 392.6 §392.7 Equipment, inspection and use. 392.8 > Relat Disdai Interpr No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed: Service brakes, including trailer brake.connections. Parking (hand) brake. Steering mechanism. Lighting devices and reflectors. Tires. Hom. Windshield wiper or wipers. Rear-vision mirror or minors. Coupling devices. [33 FR 19732, Dec. 25, 1968, as amended at 60 FR 38746, July 28, 1995; 66 FR 49874, Oct. 1, 2001 ] Feedback I Privacy Policy I USA.gov I Freedom of Information Act (FOIA) I Web Policies and Important Links I Site Map I Plug-ins http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.asp?rule t... 6/13/2007 B92.7 Page 2 of 2 Federal Motor Carrier Safety Administration 1200 New Jersey Avenue SE, Washington, DC 20590. 1-800-832-5660 • TTY: 1-800-877-8339 Field Office Roster hq://www.fmcsa.dot.gov/rules-regulations/administration/fmcsrlfmcsrruletext.asp?rule t... 6/13/2007 s, L 393.95 Page 2 of (a)(4) Condition, location, and mounting. The fire extinguisher(s) must be filled and located so that it is readily accessible for use. The extinguisher(s) must be securely mounted to prevent sliding, rolling, or vertical movement relative to the motor vehicle. (a)(5) Extinguishing agents. The fire extinguisher must use an extinguishing agent that does not need protection from freezing. Extinguishing agents must comply with the toxicity provisions of the Environmental Protection Agency's Significant New Alternatives Policy (SNAP) regulations under 40 CFR Part 82, Subpart G. (b) Spare fuses. Power units for which fuses are needed to operate any required parts and accessories must have at least one spare fuse for each typetsize of fuse needed for those parts and accessories. (c) [Reserved] (d) [Reserved] (e) [Reserved] (f) Warning devices for stopped vehicles. Except as provided in paragraph (g) of this section, one of the following options must be used: (f)(1) Three bidirectional emergency reflective triangles that conform to the requirements of Federal Motor Vehicle Safety Standard No. 125, §571.125 of this title; or (f)(2) At least 6 fusees or 3 liquid-burning flares. The vehicle must have as many additional fusees or liquid-burning flares as are necessary to satisfy the requirements of §392.22. (f)(3) Other warning devices may be used in addition to, but not in lieu of, the required warning devices, provided those warning devices do not decrease the effectiveness of the required warning devices. (g) Restrictions on the use of flame producing devices. Liquid burning flares, fusees, oil lanterns, or any signal produced by a flame shall not be carried on any commercial motor vehicle transporting Division 1. 1, 1.2, 1.3 (explosives) hazardous materials; any cargo tank motor vehicle used for the transportation of Division 2.1 (flammable gas) or Class 3 (flammable liquid) hazardous materials whether loaded or empty; or any corggaggWL, motor vehicle using compressed gas as a motor fuel. (h) [Reserved] (i) [Reserved] 0) Requirements for fusees and liquid burning flares. Each fusee shall be capable of burning for 30 minutes, and each liquid burning flare shall contain enough fuel to bum continuously for at least 60 minutes. Fusees and liquid burning flares shall conform to the requirements of Underwriters Laboratories, Inc., UL No. 912, Highway Emergency Signals, Fourth Edition, July 30, 1979, (with an amendment dated November 9, 1981). (See §393.7(c) for information on the incorporation by reference http://Www.f ncsa.dot.gov/rules-regulations/administrationlfmcsrlfincsrruletext.asp?sectio... 6/13/2007 39V3.95 Page 3 of 3 and availability of this document.) Each fusee and liquid burning flare shall be marked with the UL symbol in accordance with the requirements of UL 912. (k) Requirements for red flags. Red flags shall be not less than 12 inches square, with standards adequate to maintain the flags in an upright position. (49 U.S.C. 304,1655; 49 CFR 1.48(b) and 301.60) [33 FR 19735, Dec. 25, 1968, as amended at 35 FR 13019, Aug. 15, 1970; 35 FR 14619, Sept. 18,1970; 37 FR 17176, Aug. 25,1972; 40 FR 10685, Mar. 7, 1975; 41 FR 53031, Dec. 3, 1976; 47 FR 47837, Oct. 28, 1982; 59 FR 34712, July 6, 1994; 67 FR 61225, Sep. 27, 2002; 70 FR 48054, Aug. 15, 2005] Feedback I Privacy Policy I USA.gov I Freedom of Information Act (FOIA) I Accessibility Web Policies and Important Links I Site Map I Plug-ins Federal Motor Carrier Safety Administration 1200 New Jersey Avenue SE, Washington, DC 20590. 1-800-832-5660 • TTY: 1-800-877-8339 Field Office Roster http://Www.fincsa.dot.gov/rules-regulations/administration/fmcsrlfincsrrdetext.asp?sectio... 6/13/2007 4 r 4 F 6 N ?, S s .? K . 4 . COMMONW MTN OF PENNSYLVANIA CITATION. NO. 81738.6-.0 1, Wawa Y. 01 a o¦w wwa 1w¦o • Aral N1ds¦ ILIA ? 10. DI Its AaproM r Ow" r o 7>. No. / ti!. O 1 `L 16 Melp `?? ' o ti T7p¦ t ??? `4?jRq 7E5¦or ;7 17, Vob. Moo. 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Alec, your d&M pMepe WILL EE SUSPENOED I YOU OW 9%AY Or ate fotmd.g^ of fin ofiamu under the Vehi* Code, Including, IPA not limned 10, 76 KC.S. 44 1571,:9941, 5845. 3W, 3716. 8785, S'194, 3736. subsequent omn4C6ons of 76 PLO.$. 1'1501. 9 ublaaon of 75 Pa.0, 19961 when oaxadrtg in w adW work mw and w aeddent report b submlttod by the lea. and a *Wjon of 75 Pa.C.S. § 9962 when occumng in an arahre walk zons. ''-007rA DISTRICT JUSTICE, 7 3.x,8 -` 0 Aare araooat wbmw a 'r 40 i . , 4 COMMONWEALTH OF PENNMVANIA CITAIVN NO. r.?r ?. +• • M06173a5 6 n e t i. c 3 r t NKrnCE H you plead gutty or am found gtft, tea may to au @=W rl*m your ftivara record. An acamulow d poi1M6 may MPA to the 1O{ijlalfalOn Of your dfMng P?h'SSP. AIM your Oft pdWho WILL IN SVMNDEo n you plead g ft or am tow puly al owUn ` '•... • :, . •. CHOW wl* the Vahldo Code, indu*g but Rol Wted to, 75 P&Q& 0 1871, 3841, SM, 3967, 3718. 2M 3734, 3736, aubaequan oorwldtono of 75 Pa.C.S. § 15Qt, a vidatj0n ai 75 Pit 4.9. !3361 when oocurting in fut at 4w wntk zone rued fu1 acddont report is subrruaod by the Pgke, and a Woledm of 7b Pa.C,S. ¢3862 when ocafelng in an Moto work me { ffV 74f0,7A ais .RICT JUSTIQU M'0 617 3 s 5."6 r ? ' TRAFFIC CITATION ; • o a w :?" ASE •'?'°?it' i,5?"": ? • / 4 -// ° .7 Z m/ F 4. f>aM?I?ntMwiw. oadeq ' ? .?r?c r. tO. PAO 1a Arm u. f& 1 d C 61 d W" _ 17. Vdi. Rua Na. 1R ; vr. 1 IA Wrw M. TOM 2 2. Gow P SL OwwdA.wwe a CrAw Npmo i Algfol Q &anw,w Derodaw lama P4" SL Cewaa D 1 mdW »poad uiwa ? Ch.. Rw *W m or L mw ? CNN= omw o P. Y M 000E RTL! 70 ? amp ypne • VW ftft ? AwYrakn a cams w at 111m rwgA d ? ? wmr o valtaa v aww a "d Q urk tu A h- mw 0 T Q p w O m--Co agaaM © Ow?wkn d Vrt" wMmu3 Onkma Cual-, a mapaodop PMdE ? drdny " sa axa. -7 " ? ra3'FCJk/ fhG?T G1, 470 raalro at ON«r ? thaw ? 00000 ? AAV. 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Mw. MN. ! / 9 ?t [? vas ? ym ? No va9 ? m Y,. •Alanadw ? I.Ipt . .. Mvt °4,1738'7-C. as GPM A** ea aMa Q" e4. ftow TY0 i n. *" e f cOfrtlfloawEALTM OF PENrosvtvANU J CITATION NO. :M'G617387-1 r? II you•pksd guilty or am-fouTd gdky, NOTICE pflitlls may be BeeBa30tl agplnst your ddva's reccld. An d points may Houk in (tie Su4*18I011 d Yow fA r*v p Mk ge. Aleo, your dfllditg 16vmgo wtLL oF WSPENIM If you p1m 0* ar we k> gw.gL ft 01 certain dfarim wider ON Vehicle Code, Intludng but not U'fdW to, 76 Pa.M U 1371, 8841, 9915, 3967, 3718, 8781, 8784, 8788, u beequ" ccnvk orrs d 75 Pd.C.S. § 1601, a VMWbn d 75 Pf1.C4. 49961 when ocaarlng•In an •ad" wok mne and an altddo M report k CUWWNed by the police, and a vlciaUm of 75 Pa.C.S. ! 9962 when occurring in an active work 20116. 7 p017A . . Aopc ,ooc•e:, fww, nMUM DISTRICT JUSTICE M0617387-1 low", - } IPA, gm A 4. &6w N~ L F.96L G'?/?/ ? I3 ®wA i ? 9. ONbnM Nam - OYduw . I.ow w F /+ti If L.(ITE 10, cowl ? ' Jt? i ?cz n o . ? 11 . i' 2< ?7ISK+tiA : o ROG P. aqr 0 PA /L 74. mom ' , 16. C" . - d k n. vOA fTgp flo 10. . W. 1a awbf 80 Mw- it. Typo PA fr 110100 a AoYObf Y 22 oAftwe$r tAey Not Nw4Jfed . as !a mohn n "d W" O cdwoq gpgwrwd a be IJWAW © cwamo m" TfEJN Ti 1J sWp egro 8 YMdd Sbpw ? n4ow wa, a ewdaoow d Two Fi quw 27. arc, W P 13 PMYq v&4* at me, spood j`ur .MW AdWd. ? T1Mpo-con" Bl " - T / 4 _7 p 0 ow"Won d Velma wm w wow Cw m=W d Imp "m PSI Q.o ? t" wools gmmom po w I q v p N *"Nx d or HNOW W. EAI L d o0w. ? F. CAT fwdw•d olY,.w ? A dmr Q cladl.d 0 AAIv. ae c _ ? e MPN AYOwod MPH ? ESP © VYew D adw Q oporew YON* with Ewplwd t np.ndon ? OW OM Va" WkWUt VM Um m 39 IAT 1 0.00 Q oawsm veome MIN value Lwunwe ? op~ wnpYmwd vdmo ? vfalom0 e7 pw.'Padw a J FWI, wCPA 393_ 9___.- sys: , X74 ?N " ? Mend m Yg0. _?y.,r f??' ?7fG ? LAO Ow*w RmomwAd Q AcM wok Toro 88. Lemllen S7. hl•Codo ? ph TdIW 41.'. 14°. Tllpip 41, , 4X D910n4WM'i ft*Wm - AWW&Udgm ftW of f, odit N. 1 w d,r on IwAC w tom in qww awdon rr. um wd carect•to We bW of rW www W*.AMemrwn and bMWL TTIw wdtoomn k mom Aw" b ew Wismoe d 8oaeon 4801 of ow Comw Cc& Ila P6C S 4a" . . § ) W *v to Vmwom Iw im wdwn w W&;WW L ®10 w0 dA il ' ORI Mwbw ' es S%iW s PA PSP/d7 i3O Y' TH10 01ATION JUS QWN A MEMBER OP THE PENNSYLVANIA STATE POLICE, KARPoa&M. PA. 17110. OLD, Wad Thft 00" qp?qw _ 61. Iflaw.pogpwotl 5.'.' Mawr Tbwd lq. ?. TYned d4. sow d Equp, am X11 _15L WAUW EO* Twlwd W. nde Ep,Ip. T40M Amlgw,tn?g?n?o r FO sta. Pwwds mums f in. mn vale Hwr ww Trod'-' 6/ PY6 ©Tns 10 YES ? No ? rf a 01. rAMoflgt•/Slrbpwrwliq ' : Yh66 t'pr-r' 6 W &W" Awwng Oa atop Obw rw. oproo• Typo ePmd as • .9 1* ft Page 1 of 39"1.25 * U.S. Department of Transportation Federal Motor Carrier Safety Administration tome Rules & Regulations Registration & Licensing Forms Safety & Security Facts & Research Cross Border All FMl Home > Rules & Regulations > All Regulations > 391.25 Search Esta pagina an espafioi Part 391: Qualifications of Drivers and Longer Combia Vehicle (LCD Driver Instructors Search All Regulations for Examples: Medical Form, 391.53. 391 Ail Regulations s Part 391 < 391.23 §391.25 Annual inquiry and review of driving record. 391.27 > (a) Except as provided in subpart G of this part, each motor carrier shall, at least once every 12 months, make an inquiry into the driving record of each driver it employs, covering at least the preceding 12 months, to the appropriate agency of every State in which the driver held a commercial motor vehicle operator's license or permit during the time period. (b) Except as provided in subpart G of this part, each motor carrier shall, at least once every 12 months, review the driving record of each driver it employs to determine whether that driver meets minimum requirements for safe driving or is disqualified to drive a commercial motor vehicle pursuant to §391.15. (b)(1) The motor carrier must consider any evidence that the driver has violated any applicable Federal Motor Carrier Safety Regulations in this subchapter or Hazardous Materials Regulations (49 CFR chapter I, subchapter C). (b)(2) The motor carrier must consider the driver's accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicate that the driver has exhibited a disregard for the safety of the public. (c) Recordkeeping. (1) A copy of the response from each State agency to the inquiry required by paragraph (a) of this section Rslat Disclai Interpr ns/administration/f n sr/fmcsrruletext.asp?rule t... 6/13/2007 httn://www.f ncsa.dot.gov/rules-regulau Page 2 of 3 " ' •' --399.25 Overview Federal Regulations All Driver Vehicle Company FMCSA Hazmat Regulatory Guidance Rulemakings and Notices Final Rules Interim Final Rules Proposed Rules Notices Topics of Interest Hours of Service (HOS) Hazardous Materials Medical Program NAFTA Rules Drug & Alcohol Testing shall be maintained in the driver's qualification file. (c)(2) A note, including the name of the person who performed the ioniand he date of such review, ?shalbbe maintained bin the's sectio driver's qualification file. [35 FR 6460, Apr. 22, 1970, as amended at 35 FR 17420, Nov. 13, 1970; 60 FR 38744, July 28, 1995; 63 FR 33277, June 18, 1998]. httn://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruietext.asp?rule t... 6/13/2007 M'! -391.25 Page 3 of 3 Feedback I Privacy Policy I USA.gov I Freedom of Information Act (FOIA) I Accessibility Web Policies and Important Links I Site Map I Plug-ins Federal Motor Carrier Safety Administration 1200 New Jersey Avenue SE, Washington, DC 20590.1-800-832-5660 • TTY: 1-800-877-8339 Field Office Roster 6/13/2007 http://Www.f mesa.dot.gov/rules-regulations/administrationlf ncsrlfincsmdetext.asp?rule t... IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs File No: 070201727 Civil Action - Law V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants Jury Trial Demanded CERTIFICATE OF SERVICE AND NOW, this 26 h day of June 2007, I, John W. Carter, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing NOTICE TO DEFEND AND CLAIM RIGHTS AND COMPLAINT upon both Defendants Smith Transport, Inc. and Thomas M. Walsh by first class mail to Robert R. Leight, Esquire at the following location: Robert R. Leight, Esquire Pietragallo, Bosick & Gordon, LLP One Oxford Centre, 38`h Floor 301 Grant Street Pittsburgh, PA 15219 ABOM & KUTULAKIS, L.L.P. John W. Carter, Esquire Attorney ID: 202849 Court of Common Pleas of Philadelphia County For use nay (txa st Number) Trial Division A"20 Civil Cover Sheet 07 PLAINTIFF'S NAME DEFENDANTS NAME David Kinzier Smith Transport, Inc. PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 707 Doubling Gap Road N ill PA 17241 331 East Closson Road 00? 1??y2? ewv e, Roaring Springs, PA 16673 PLAINTIFF'S NAME DEFENDANTS NAME Kay Kinzler Thomas M. Walsh BURY FEE PAID PLAINTIFF'S ADDRESS DEFENDANTS ADDRESS 707 Doubling Gap Road 11741 Denman Road Newville, PA 17241 Philadelphia, PA 19154 PLAINTIFF'S NAME DEFENDANTS NAME PLAINTIFF'S ADDRESS DEFENDANTS ADDRESS TOTAL NUMBER OF PLAINTIFFS TOTAL NO. OF DEFENDANTS COMMENCEMENT OF ACTION ? Complaint ? Petition Action ? Notice of Appeal 2 2 Q I? Writ of Summons ? Transfer From Other Jurisdictions AMOUNT IN CONTROVERSY COURT PROGRAMS ? $50,000.00 or less ? Arbitration ? Mass Tort ? Carnnaoe ? setilcment ? More than $50,000.00 © Jury ? Savings Action ? Minor Court Appeal ? Minors ? Non-Jury ? Petition o Other. ? Statutory Appeals ? W/D/Survival CASE TYPE AND CODE (SEE INSTRUCTIONS) 2V STATUTORY BASIS FOR CAUSE OF ACTION (SEE INSTRUCTIONS) RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET NUMBER) IS CASE SUBJECT TO COORDINATION ORDER? Yes No ? ? ? ? i w? TO THE PROTHONOTARY: r ( Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appellant: Papers may be served at the address set forth below. NAME OF PLAINTIFF'SIPETITIONER'SIAPPELLANT'S ATTORNEY ?oo S (SEE INSTRUCTIONS) John W. Carter ; K 36 South Hanover Street PHONE NUMBER FAX NUMBER Carlisle, PA 17013 (717) 249-0900 (717) 249-3344 SUPREME COURT IDENTIFICATION NO. E-MAIL ADDRESS /?a 8 9 jwilliamcarter@earthlink.net SIGNATURE DATE r d , 14 e ,01,07 0 John W. Carter, Esquire jwilliamearta@earffilink.net Attorney I.D. #: 202849 Jason P. Kutulakis Kutulakis c,earthlink.net Attorney I.D.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 , vlo Client Name: David and Kay Kinzler IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road FEBRVARy ft7 Newville, PA 17241 Q '?00 ' 00172' Plaintiff File No: Civil Action Law V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 11741 Denman Rd Philadelphia, PA 19154-3615 Defendants PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons in the above-captioned civil action. Respectfully submitted, ti? John W. Carter, Esquire Attorney for Plaintiff 36 South Hanover Street Carlisle, PA 17013 717-249-0900 Attorney ID# 202849 VT O N LIJ LL. O O N o°n Q ?ti 22 n M » tt tt F- - 1W Court of Common Pleas of Philadelphia County For Prot? Lea Only (Do&A %adw) Trial Division Civil Cover Sheet 0,7- PLAINTIFF'S NAME DEFENDANTS NAME gtttl'! 2001 Ap t R 23 A 9:55 h T I David Kinzler nc. Smit ransport, PLAINTIFF'S ADDRESS DEFENDANTS ADDRESS PRO P R, O 707 Doubling Gap Road 331 East Closson Road Newville, PA 17241 Roaring Springs, PA 16673 PLAINTIFF'S NAME DEFENDANT'S NAME Kay Kinzler Thomas M. Walsh PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 707 Doubling Gap Road 3512 Camarvon Avenue Newville, PA 17241 Bristol, PA 19007 PLAINTIFF'S NAME DEFENDANT'S NAME PLAINTIFF'S ADDRESS DEFENDANTS ADDRESS TOTAL NUMBER OF PLAINTIFFS TOTAL NO. OF DEFENDANTS COMMENCEMENT OF ACTION 1:1 Complaint ? Petition Action ? Notice of Appeal 2 2 Q Writ of Summons ? Transfer F. Other Jurisdictions AMOUNT IN CONTROVERSY COURT PROGRAMS ? $50,000.00 or less ? Arbitration ? Mass Tort ? Conanace ? Settlement Q More than $50,000.00 ? Jury ? Savings Action ? Minor Court Appeal ? Minors ? Non-Jury ? Petition ? Statutory Appeals ? W/D/Survival ? Other. CASE TYPE AND CODE (SEE INSTRUCTIONS) STATUTORY BASIS FOR CAUSE OF ACTION (SEE INSTRUCTIONS)© RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET NUMBER) A IS CASE SUBJECT TO ? (r COORDINATION ORDER? ? < c Yes No ? ? ? ? TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appellant: Papers may be served at the address set forth below. NAME OF PLAINTIFF'S/PETITIONER'S/APPELLANT'S ATTORNEY ADDRESS (SEE INSTRUCTIONS) John W. Carter 36 South Hanover Street PHONE NUMBER FAX NUMBER Carlisle, PA 17013 (717) 249-0900 (717) 249-3344 SUPREME COURT IDENTIFICATION NO. E-MAIL ADDRESS .? 01 U fr g jwilliamcarter@eanhlink.net SIGNAT DATE ? ! April 17, 2007 John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis jkutulakisa,earthlink.net Attorney I.D.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler : 707 Doubling Gap Road Newville, PA 17241 Plaintiff File No: 001727 Civil Action - Law V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 Defendants PRAECIPE FOR RE-ISSUANCE OF A WRIT OF SUMMONS TO THE PROTHONOTARY: Please re-issue a writ of summons in the above-captioned civil action ONLY to Defendant Thomas M. Walsh at the address listed. Respectfully submitted, &__? G. - <7_ZZZ John W. Carter, Esquire Attorney for Plaintiff 36 South Hanover Street Carlisle, PA 17013 717-249-0900 Attorney ID# 202849 C A It1 &L SHERIFF'S RETURN OF SERVICE - PHILADELPMA CO. COURT TERM AND NUMBER dOO (Please prepare separate `return" Form for each Defendant to be served by Sheriff. If you desire a copy of this "Return" mailed to you, please attach self-addressed, stamped enve- -7 2- -7 lope for each separate address where service is required.) TO BE COMPLETED BY ATTORNEY sNERIFF s NUMBER PLAINTIFF P ` V ( L1 1`,Z 5to r ? COST MI DEFENDANT(S) -rk0? , r.?- A r, ` /Lil _ DISTRICT Summons ? Complaint MAR 1 2 2007 ? Other: SERVE AT / 1-7 '11 V 6M 7 I YW Jf 46 TYPE OF ACTION f 4 SPECIAL INSTRUCTIONS 1 TO BE COMPL.E1'E9 BY SHERIFF Serviikd and madq known to Defendants the ^?- day of It-NA1714-k , 20 at I L O o'clock .M. at Street, County of Philadel- phia, Commonwealth of Pennsylvania, in the manner described below: ? (s) personally served. &dW family member with whom said Defendant(s) reside(s). Relationship is ? Adult in charge of Defendant's residence who refused to give name or relationship. ? Manager/Clerk of place of lodging in which Defendant(s) reside(s). , _ ? Agent or person in charge of Defendant's office or usual place of business. , ? and officer of said Defendant company. ? Other t+i-C-6R _? ,? S ,!!7F y ? c2L On the day of 20 , at o'clock _.M. Defendant not found because: ? Moved ? ilnknown ? No Answer ? Vacant ? Other: SHERIFF JOHN D. GREEN By Deputy Sheriff DEPUTIZED SERVICE Now, the ( N 20-, 1, Sheriff of Philadelphia County, Pennsylvania, do hereby P_ jzm t deputize the Sheriff of? County, to serve this ? SummPR Cor t ? Other: and make return thereof and according to Law. ?vC,B? V SHERIFF JOHN D GREEN . 1 By Deputy Sheriff TO BE COMPLETED BY ATTORNEY TO BE COMPLETED BY PROTHONOTARY -?^ Name QH?/ 141. C AA fkA Addre33 3 L ,ty l1 e U r? s 7' Grpn c r L p, fX . ATTW Telephone Number 1 '1 - 2 ti(5 ' U S n ATTEST Identification Number 9 U of 0 ? O PRO PROTHONOTARY F2M Repress Plaintiff(s) Q y 0% Defendant(s) _ _ TW DATE El Other 5-21 (Rev. 7100) I PROTHONOTARY'S COPY O John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis jkutulakisgearthlink.net Attorney I.D.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler G+ N fl I IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiff V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 ,;2067 File No: 001727 Civil Action - Law . Mai ??SS • R? Defendants 1 PRAECIPE FOR RE-ISSUANCE OF A WRIT OF SUMMONS TO THE PROTHONOTARY: Please re-issue a writ of summons in the above-captioned civil action ONLY to Defendant Thomas M. Walsh at the address listed. Respectfully submitted, John . Carter, Esquire Attorney for Plaintiff 36 South Hanover Street Carlisle, PA 17013 717-249-0900 Attorney ID# 202849 © ZIP " t*t IN THE COURT OF CO 0 MMON PLEAS OF PHILADELPHIA COUNT, PENNSYLVANIA "t7 N m t7 ? c 1 `? 7C1 © -n V m G DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 001727 V. SMITH TRANSPORT, INC. and PRAECIPE FOR APPEARANCE THOMAS M. WALSH, Defendants. Filed on Behalf of Defendants PRO w7my APR 0 4 2001 Counsel of Record for this Party[). GRAV" Robert R. Leight, Esquire PA I.D. No. 33733 Pietragallo Bolick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 s N) 440 ? ~ CA w F+• r . (V H' . IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. CIVIL DIVISION DOCKET NO.: 001727 PRAECIPE FOR APPEARANCE ZE TO: PROTHONOTARY OF PHILADELPHIA COUNTY Kindly enter my appearance as counsel of record for Defendants Smith Transport, Inc. and Thomas M. Walsh, in the above-captioned case. By: Respectfully submitted, Pietragal_lg.Bosick & Gordon, LLP Counsel for Smith Thomas M. Walsh 17 'QV r? O ? N crn? O .v 2 w %0 rn Inc. and CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Appearance has been served on the following via regular U.S. Mail this 27 h day of March, 2007: Jason P. Kutulakis, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 & Gordon, LLP By: Ro1Sert R. Leighf, Es? v Counsel for Smith T Inc. and Thomas M. Walsh may' ? ;) w CL N 6iM' IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. CIVIL DIVISION DOCKET NO.: 001727 .v 'v 0 v rn a PRAECIPE FOR RULE TO FILE w COMPLAINT p = w Filed on Behalf of Defendants N ? Counsel of Record for this Party: Robert R. Leight, Esquire PA I.D. No. 33733 Pietragallo Bosick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. CIVIL DIVISION DOCKET NO.: 001727 PRAECIPE FOR RULE TO FILE COMPLAINT TO: PROTHONOTARY OF PHILADELPHIA COUNTY U ? tv c7 O a ? ca x7 N •-< rn Kindly issue a Rule compelling the Plaintiffs to file a Complaint in the above-captioned action within twenty (20) days. Respectfully submitted, Counsel for Smith Thomas M. Walsh & Gordon, LLP Inc. and CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Rule to File Complaint has been served on the following via regular U.S. Mail this 27th day of March 2007: Jason P. Kutulakis, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 Pie sick & Gordon, LLP By: -Robert R. Lei , Esqui Counsel for Smith Trat port, Inc. and Thomas M. Walsh r. P ?%_1M nI-,- I-?l 7 &nes,-J SINERIF'F'S RETURN OF SERiCE - PMLADELP+MA CO .? .? COURT TERM AND NUMBER . (Please prepare separate "return' Form for each Defendant to be served by Sheriff. If you desire a copy of this 'Return" mailed to you, please attach self-addressed, stamped enve- lo e for each se t d ' h oa - -7 p para e ad ress w ere gervice is required.) TO BE COMPLETED BY ATTORNEY SHERIFF'S NUMBER PLAINTIFF - I C I N Z I D I P AV YJ 'J COST MILEAGE W -?- 0 , - I ?,? ( !57 1 DEFENDANT(S) 5 M)-rH T/L Ads PXr J N G . , DISTRI Summons ? Complaint Other: SERVE AT 331 CAS R' Ct O 90N TYPE OF ACTION SPECIAL INSTRUCTIONS TO BE COMPLETED BY SHERIFF Served and made known to Defendant(s) on the day of , 20 , at o'clock _.M. at Street,.County of Philadel- phia, Commonwealth of PennsyfvaNa, in the manner described below: ? Defendant(s) personally served. ? Adult family member with whom said Dellandant(s) reside(s). Relationship is ? ? Adult in charge of Defendant's residence who refused to give name or relationship . ? ManagertClerk of place of lodging in which Defendant(s) reside(s). 1 7 ?, I = ? Agent or person in charge of Defendant's office or usual place of business. @ ''' - ? and officer of said Defendant company. ? Other SHERIFF JOHN D. GREEN By Deputy Sheriff On the day of 20 , at o'clock _.M. Defendant not found because: C. ? Moved ? Unknown ? No Answer ? Vacant ? Other: r+> SHERIFF JOHN D. GREEN By Depw Sh?ri[I 1 t- cil DEPUTIZED SERVICE Now, the day of 20, 1, Sheriff of Philadelphia County, P,6nngWanig;,do hereby deputize the Sheriff of AAL& 40 County, Rig- to serve this 'Summons ? Complaint ? Other: and ntMe return thereof and according to Law. SHERIFF JOHN D. GREE By TO BE COMPLETED BY ATTORNEY TO BE COMPLETED BY PROTHONOTARY Name -To H N yv c4krb?k AA Address I? IZ213 2 Y 51 ATM 4- 0 0,3 Telephone Number --_-1 M - ATTEST Identification Number 202 dr S PRO PROTHONOTARY Repress pt!:' FES 2 p 1007 Plaintiff(s) ? Defendant(s) ? Other PRI POW D-;ei (nev. /iuv) PROTHONOTARY'S COPY 404111iECEIVED I SHERIFF'S 0P.P ARTMENT BLAIR COUNTY, PENNSYLVANIA COURTHOUSE, HOLLIDAYSBURG, PA. 16648 DATE PROCESSED INSTRUCTIONS: - SHERIFF SEPVICE Print Iwgibly, insuring readability of a8 copies. PROCESS RECEIPT, and AFFIDAVIT OF RETURN Do not detach any copies. 9CS0 ENV.a 1. PLAINTIFF#,"* ? 2. COURT NUMBE rA -z- 10,0 C) P7 3. DEFENDANT / S f 4. TYPE vyR Oq INT SERVE 5. NAME OF INDIVIDUAL. COMPANY. CORPORATION, ETC.. TO SERVICE OR DESCRIP.TION OF PROPERTY TO BE LEVIE ATTACHED OR SOLD. 6. ADDRESS (Street or RFD, Apartment .. City. Boro. Two.. Stara and 10 CorM ,r, 7 AT 0? GDS Aj? al=k= ght- 7. INDICATE UNUSUAL SERVICE: ERSONAL PERSON IN CHARGE DEPUTIZE CERT. MAIL RFG STERED TAIL POSTED OTHER NOW. , I, SHE IFF OF BLAIR r COUNTY, PA., do hereby deputize the Sheriff of County to execute this Writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff. SHERIFF OF BLAIR COUNTY _ 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in Custody of whomever is found in possession, afar notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs' sale thereof. 9 C- NATURE Y or ott??/i^,'•TIN D r epingjijkvic eha o1: 10. TELEPHONE NUMBER 11. DATE CD PLAINTIFF 717- /C)DEFENDANT -') 0-09 On SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE t acknowled a recetot of the writ SIGNATURE o h ed B D DeQut or Clerk and Title 13. Date Received 14. ExpirationrHearmg date 12, or comolainl as :ndtcated above. ??l? ? 15. 1 nemby CERTIFY and RETURN that I ?have personally served, (have served person in charge. El have least evidence of service as shown in "Remarks" (on reverse) nave posted •he above described prooerty with the writ or comI it Ascribed on the individual, company, corporation, etc., at the address shown above or on the individual. company, corooralior. etc . at the address inserted below by hand inglor Posting a TRUE and ATTESTED COPY thereof. 16. U 1 hereby r:erhfy and return a NOT FOUND because I am unable to locate the individual, eoe+oany. corporation. etc., named above. (See remarks below) 17. Name and tine of r.;fi d erved /t " O 18. A person of suitable age and discretion ' Read Order dI A then ng in the dr!!ertdant s usual place /_L /?y?'Qrt?,/j/? of a 01 abode. 1 1:1 - 19. Add ess of where server) (C plete only if different than s hown above) (Street or RFD. Apartment No.. City. Boro. Two., 20. Date of Service 21. Time State and ZIP Code) 314? hl 13-30 22. ATTEMPTS D:+•e Miles Dep. Int. Dare ties Dep. Int. Date Miles I Dep. I.I. Date Miles Dep. Int. Date Mlles Dep. Int. 23. Ad M,24 25 26. 27. Total Costs 28. 9084000"R pFFUNn " 64, 0- 0r) ?2 7- 30. REMARKS AFFIRMED and ;:ubsrr.hed to before me this ay o a...? Hollidaysburg f3orO. Blair County MY COMMISSION x°l Commission Expires ADr. 320 1 ACKN(IWI _ rQFv#*9A6kIff616F13f M OF AUTHORIZED IS3U111 G AUTHORITY AND TITLE. SIGNA By SO ANSWER. ease Print or Type) Dale ?J ate ? X'doc-"' LAIR COUNTY 39. Date Received WINA IFlF': QF !I!/tY1CE -- it. ?P ( ) 0 ) The within uoon -- - -, the within named defendant by mellirrtg to - -- -_--- by mail, return receipt requested, postage prepaid -on the a true and attested-copy thereof at -- -The return receipt signed by defendant on the is hereto attached and made part of this return. --- - ( ) (2) Outside the Commonwealth, pursuant to Pa, R.C.P. dos (c) (1) (2), by mailing a true and attested copy thereof at in the folkewing manner. --- ( ) (a) To the defendant.by ( -) -wed-{, )"certified taait.. return receipt requested, postage prepaid, addrerew on, the said receipt being returned NOT signed by defendant, but with a notation by the Postal Authorities that defendant refused to accept the same. The returned receipt and envelope is attached hereto and made part of ;his return. And thereafter: ( ) (b) To the defendant by ordinary mail addressed to defendant at same address. with Me return address of the Sheh f app_~inq thtraon. on the I further certify that after fifteen (15 ) days' from the maihrtg date, 1 have not received said envelope back from the Postal Authorities. ,.A c ""ifi to of 4yo* ?g is hereto attached as a proof of mailing. ' ( ) (3) By publication in a daily publication of general circulation in the County of Slair. Commonwealth of Pennsylvania.. 116* (9)' with publk-ation appearing _ The affidavit from said publication is hereto attaohea 1 (4) By mailing to by mail. return receipt requested. postage prepaid. omthB a true and attes e f copy thereof at` r The _ returned by the Postal Authorities marked is hereto attached i `) -Other I "` IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Q 70oZ p/7iZ 7 Plaintiff File No: 001727 Civil Action - Law V. Smith Transport, Inc. 331 East Closson Road 0 -=r Roaring Spring, PA 16673 -0 o "{ and 0 ? [? Thomas M. Walsh PRO 1PROTHY = rv 3512 Carnarvon Avenue Bristol, PA 19007 MAY 15 2007 Defendants M. YOUNG ACCEPTANCE OF SERVICE I hereby accept service of the Writ of Summons in the above-referenced matter on behalf of Defendant, Thomas M. Walsh. (-113010 Date Attorney for Defend na t k... - Bucks County Case # 200730910 Invoice to be mailed to County Sheriffs Office Attn: JOHN W CARTER, ESO 36 S HANOVER ST CARLISLE, PA 17013 JOHN W CARTER, ESQ Special Instructions OFFIC-101L RECEIPT RECEIPT # 200 1 06167 TRANSACTION # SM 20,---,-,, 10'?1'_1 'i } r, Y PC #0009067 5 `, j C! PAT 0. iio' TOTAL 1, - Notes TNatfi., 1111i AMM BUC COL Y OC SHERIFFS RETURN 1 of 1 Filed 4 /23/2007 in ATTY Bucks Case # 200730910 Recd 4/24/2007 Special Instructions Action Civil Action CIVIL Plaintiff DAVID KINZLER -VS- Defendant THOMAS M WALSH 3512 CARNARVON AVE BRISTOL, PA 19007 Address Served if Different Served under Pa. R.C.P.#402 (A) (i) Defendant personally served (A) (2) (i) Family Member (A) (2) (i) Adult in Charge of Residence (A) (2) (ii) Manager/Clerk at De$'s Lodging (A) (2) (iii) Person in Charge of Business By Handling to THOM&S M. !? A SH M By Posting Not Served 30 Days Ran Out Defendant Not Home Defendant Moved Address Vacant / Defendant Unknown Deputy needs better address, -i Checked Post Office No Forwarding f Forwarding Address (!30vv@m By Deputy Witness At 17y,3 o'clock (AM / I&) on The above document w the defendant as per information 1' a e C unty o ks, Commonwealth of Pennsylv So answ s Sheriff of Bucks County Affirmed and Subscribed before me on this day Prothontary Affirmed and subscribed before me on this day Notary Public My Com. Exp. 44- 4/24/07 © V / / .?f 1146 10001 `/ r A. 38TH FLOOR ONE OXFORD CENTRE PITTSBURGH, PA 15219 DIET L ;? 412.263.2000 FAX: 412.261.5295 FIE RAGALLO EOSICK &GORDON. ATTORNEYS AT LAPjUtj . 12 Ati 11 : Z5 DIRECT I NO.: 412.263.4394 F X FILE NO.: SIvIP1'H 80253 80253 FRO P R Q T H Y E-MAIL: RRL@PB=dG.c= June 7, 2007 Joseph H. Evers, Civil 284 City Hall 1400 John F. Kennedy Blvd. Philadelphia, PA 19107 In Re: David and Kay Kmzler v. Smith. Transport, Inc. and Thomas M. Walsh Civil Action No. 070201727 (Philadelphia County, PA) Dear Mr. Evers: Enclosed please find a Rule to File Complaint. Please execute and forward same to my attention in the enclosed self-addressed, stamped envelope. Thank you very much for your assistance. RRL/ls Enclosure cc: Jason P. Kutulakis, Esquire (w/enclosure) OHIO PENNSYLVANIA WEST VIRGINIA Very truly yours, . • IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. CIVIL DIVISION DOCKET NO.: 070201727 RULE TO FILE COMPLAINT To: DAVID and KAY KINZLER Jason P. Kutulakis, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 You are ruled to file a Complaint within twenty (20) days after service hereof. Rule Returnable A PR(d 6N-y JUN 13 ZOp7 P. FRANKLIN Prothonotary By: Date: N f r? of ?Q N ri N U9 a z AAL z n ??Daf11f1 N p x Oq a 8 ?, c w W x ai ? a ? ° `'eb a:a en P64 a a a z 0 9 J 0 V/ 8 ML O d C7 ???c7 ? ? i~ H W" ?c7 p co° n % IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 19M - FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION KINZLER ETAL February Term 2007 VS SMITH TRANSPORT INC ETAL No. 01727 WCKETED CASE MANAGEMENT ORDER JUN 18 2007 EXPEDITED TRACK Cft Q_;PLUVM AND NOW, 18-JUN-2007, it is Ordered that: Vl" 1. The case management and time standards adopted for expedited track cases shall be applicable to this case and are hereby incorporated into this Order. 2. All discovery on the above matter shall be completed not later than 05--NOV-2007. 3. Plaintiff shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial to all other parties not later than 05-NOV-2007. 4. Defendant and any additional defendants shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial not later than 03-DEC-2007. 5. All pre-trial motions shall be filed not later than 03-DEC-200 7. 6. A settlement conference may be scheduled at any time after 03-DEC-2007. Prior to the settlement conference all counsel shall serve all opposing counsel and file a settlement memorandum containing the following: (a). A concise summary of the nature of the case if plaintiff or of the defense if defendant or additional defendant; (b). A statement by the plaintiff or all damages accumulated, including an itemization of injuries and all special damages claimed by categories and amount; (c). Defendant shall identify all applicable insurance carriers, together with applicable limits of liability. 7. A pre-trial conference will be scheduled any time after 04-FEB-2008. Fifteen days prior to pre-trial conference, all counsel shall serve all opposing counsel and file a pre-trial memorandum containing the following: ! _ . -. .- (a). A concise summary of the nature of the case if plaintiff or the defense if defendant or additional defendant; (b). A list of all witnesses who may be called to testify at trial by name and address. Counsel should expect witnesses not listed to be precluded from testifying at trial; (c). A list of all exhibits the party intends to offer into evidence. All exhibits shall be pre-numbered and shall be exchanged among counsel prior to the conference. Counsel should expect any exhibit not listed to be precluded at trial; (d). Plaintiff shall list an itemization of injuries or damages sustained together with all special damages claimed by category and amount. This list shall include as appropriate, computations of all past lost earnings and future lost earning capacity or medical expenses together with any other unliquidated damages claimed; and (e). Defendant shall state its position regarding damages and shall identify all applicable insurance carriers, together with applicable limits of liability; (f). Each counsel shall provide an estimate of the anticipated length of trial. 8. It is expected that the case will be ready for trial 03-AMR-2008, and counsel should anticipate trial to begin expeditiously thereafter. 9. All counsel are under a continuing obligation and are hereby ordered to serve a copy of this order upon all unrepresented parties and upon all counsel entering an appearance subsequent to the entry of this Order. BY THE COURT.• ILLIAMJ. MANFREDI, J. TEAM LEADER JMS&%74(REV 11/04) lop IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. 4 CIVIL DIVISION C, DOCKET NO.: 070201727 NOTICE OF SERVICE OF DISCOV&Y Filed on Behalf of Defendants Counsel of Record for this Party: Robert R. Leight, Esquire PA I.D. No. 33733 Pietragallo Bosick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, CIVIL DIVISION DOCKET NO.: 070201727 V. 7 --4 SMITH TRANSPORT, INC. and _ C3 THOMAS M. WALSH, Q -? Defendants. NOTICE OF SERVICE OF DISCOVERY DIRECTED TO PLAINTIFFS TAKE NOTICE that the Defendants, Smith Transport, Inc. and Thomas M. Walsh, by and through their attorneys, Robert R. Leight, Esquire and Pietragallo, Bosick & Gordon, LLP, has served, First Set of Interrogatories and Requests for Production of Documents upon the Plaintiffs by mailing same to Plaintiffs' attorney, via U.S. mail this 26th day of July 2007 addressed as follows: Jason Kutulakis, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 Respectfully submitted, PIETRAGALLO BOSICK & GQRDON, LLP By: Rdbert R. Leight, Esqui Counsel for Defendants 0- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing, NOTICE OF SERVICE OF DISCOVERY DIRECTED TO PLAINTIFFS, on behalf of Defendants, Smith Transport, Inc. and Thomas M. Walsh, was served via U.S. mail this 26th of July 2007, upon the following: Jason Kutulakis, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 (Attorneys for Plaintiffs) PIETRAGALLO, BOSICK & GORDON LLP By ( X ?j Robert R. i t, Esq :, ,! tV >- ??? ? d :? , ? d,.. ?..,, O ri.' N Ile -10 1-7 John W Carter, Esquire v jwill.---- atbcr thlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire j?, m,l¦Icief P?rthlinlc.eet Attorney I.D.#: 80411 Abom & Kutulakis "70;t--/-7;17 36 South Hanover Street Client Name: David and Kay Kinzler -F U 4tA Carlisle, PA 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, PHILADELPHIA C'OUNT'Y. PENNSYLVANIA CIVIL DIVISION David and Kay K.inzler 707 Doubling Gap Road Newvi.lie, PA 17241 Plaintiff File No: 001727 Civil Action -• Law v. -? Smith Transport, Inc. 7- 331 East Closson Road ` Roaring Sprhig, PA 16673 :.: -*? and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 Defendants AND NOW, this-2 ay of July: 2007, comes all the patties in the above-captioned matter and respecdUlly enter into this Stipulation to have the above-captioned matter transferred from Philadelphia County to Cumberland County Court of Common Pleas as follows: 1. A Writ of Summons was filed in the Philadelphia County Court of Common Pleas in a timely manner. 2. At the time of filing, plaintiffs had a good faith belief that Defendant, Walsh, resided in Philadelphia County. 3. Service was made upon both Defendant, Smith Transport, Inc., and Defendant, Walsh. 4. A case management conference was held before this Honorable Court on June 18, 2007. 5. Counsel for all parties appeared at the case management conference. 6. All parties agree that Defendant Walsh resides in Bucks County- 7. All parties agree that Defendant, Smith Transport, Inc., is located in Blair County. S. All parties agree that both plaintiffs live in Cumberland County. 9. All parties agree that the vehicle accident at issue which gave rise to the within action occurred in Cumberland County, Pennsylvania. 10. All parties agree that this matter should be removed to the Cumberland County Court of Common Pleas. 11. All parties agree that this removal is being done in. good faith and cooperation and shall not be hold against any of the parties. 12. All parties agree that this matter does not prejudice them. 13. All parties agree to follow in good faith the case management schedule set forth by the Philadelphia Court of Common Pleas to the best of their ability. WHEREFORE, Counsel for the parties hereto, intending to be legally bound by the terms hereof, set forth their hands and seals the day and year hereinafter mentioned. Date tio ate! Date P. Attorney for Plaintiffs e R JLe;ght, Attorney for Defen is AND NOW, this day of July, 2007, I, Jason P. Kutulakis, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did sere or cause to be served a true and correct copy of the foregoing STIPULA'T'ION FOR TRANSFER OF JURISDICTION TO CUMBERLAND COUNTY COURT OF COMMON PLEAS by First Class U.S. Mail addressed to the following: Robert R. Leigbt, Esquire Pietragallo Bosick & Gordon, LLP 380 Floor, One Oxford Centre Pittsburgh, PA 15419 Esquire r John W. Carter, Esquire jwilliamcaeur@earthlink net Attorney I.D. #: 202849 Jaton P. Kuwlakis, Esquire jktrtulakis®earthlinkhet Attorney I.D.: 8041.1 Abom & Kutulakis 36 South Hanover St vet Carlisle, PA, 17013 (717)249-0900 Client Name: David and Kay Kinzler •?( t'e •'f ram'„! ` 4119 IN THE COURT OF COMMON PLEAS, PMLADELPIUA COUNTY, PENNSYLVANIA CIVIL DMSION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiff V. Smith Transport, ann. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 Defendants File No: 001727 Civil Action -- Law OF OURT AND NOW, this day of . 2007, upon consideration of the Stipulation for Transfer of Jurisdiction to Cumberland County Court of Common Pleas filed by the above- cPtioned parties, it is hereby ORDERED AND DECREED that the above-captioned matter is TRANSFERRED TO THE CUMBERLAND COUNTY COURT OF COMMON PLEAS. ? ?, :? ? o ?, 01- 5106 0?va Tem COURT OF COMMON PLEAS PHILADELPHIA COUNTY PROTHONOTARY'S OFFICE Phila. Case Number: 1727 FEB. 2007 Dear Sir/Madam: By order of the FIRST JUDICIAL DISTRICT, Philadelphia County, COURT OF COMMON PLEAS, the enclosed case(s) are transferred to the COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. Accordingly, I am enclosing all related filings. I would a late the return of the attached green receipt addwssed to the mention of THE PROTHONOTARY'S OFME CERTIFICATION UNIT ROOM 266 CITY MALL PHILADELPWA? PEA 19407 ATTEtr ON: J0*e'H WANOW If you have any questions, please call 215-686-6663. Very truly yours, Joseph Mangini 10-279W John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire jkutulakis@earthlink.net Attorney LD.#: 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler '-Tie 707 Doubling Gap Road 67_ S` C.-'Lc Newville PA 17241 Plaintiff File No: 001727 Civil Action - Law V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 Defendants STIPULATION TO ADD DEFENDANT FRANKLIN LOGISTICS 6/0 AND NOW, this .?L day of August, 2007, comes all the parties in the above-captioned matter and respectfully enter into this Stipulation to add Franklin Logistics, 3507 W Us Highway 24, Remington, IN 47977 as an additional Defendant and aver the following 1. A Writ of Summons was filed in the Philadelphia County Court of Common Pleas in a timely manner. 2. At the time of filing, Plaintiffs had a good faith belief that Defendant Smith Trucking was the employer of Defendant Walsh. 3. Service was made upon both Defendant, Smith Transport, Inc., and Defendant, Walsh. 4. A case management conference was held before this Honorable Court on June 18, 2007. 5. Counsel for all parties appeared at the case management conference. 6. At the deposition of Defendant Walsh on August 6, 2007, it was discovered that drivers for Smith Trucking actually worked for a subsidiary company of Smith Transport, Franklin Logistics. 7. All parties agree that adding Franklin Logistics as a Defendant is being done in good faith and cooperation and shall not be held against any of the parties. 8. All parties agree that this matter does not prejudice them. WHEREFORE, Counsel for the parties hereto, intending to be legally bound by the terms hereof, set forth their hands and seals the day ani Date q bq Date CERTIFICATE OF SERVICE AND NOW, this 4_ day of September, 2007, I, Jason P. Kutulakis, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing ADDITION OF DEFENDANT FRANKLIN LOGISTICS by First Class U.S. Mail addressed to the following: Robert R. Leight, Esquire Pietragallo Bosick & Gordon, LLP 38th Floor, One Oxford Centre Pittsburgh, PA 15219 P. N W W W ? o J ? r- U? co 1 l e SEP 842007 N*'' /p?( John W. Carter, Esquire jwilliamcarter@earthlink.net Attorney I.D. #: 202849 Jason P. Kutulakis, Esquire jk-utulakis@earthlink.net Attorney I. DA 80411 Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Client Name: David and Kay Kinzler IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiff File No: 001727 Civil Action - Law V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007 and Franklin Logistics 3507 West U.S. Highway 24 Remington, IN 47977 Defendants ORDER OF COURT of U C' L"? a'?-V3 14 AND NOW, this ^,? day of 2007, upon consideration of the Stipulation to Amend the Complaint filed by the above-captioned parties, it is hereby ORDERED AND DECREED that Franklin Logistics, 3507 W U.S. Highway 24, Remington, IN 47977 is ADDED AS A DEFENDANT in the above-captioned matter. BY THE COURT, Judge stribution: son P. Kutulakis, Esquire, 36 South Hanover Street, Carlisle, PA 17013 Wobert R. Leight, Esquire, 38th Floor, One Oxford Centre, Pittsburgh, PA 15219 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, CIVIL DIVISION DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, ANSWER AND NEW MATTER Defendants. NOTICE TO PLEAD To: Plaintiffs You are hereby notified to file a written response to the enclosed NEW MATTER within twenty (20) days fro he date of se a hereof or a judgme may a en re a. st y By: L IV/ Robert . I eight Counsel for Defendants Filed on Behalf of Defendants Counsel of Record for this Party: Robert R. Leight, Esquire PA I.D. No. 33733 Pietragallo Bosick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC. and THOMAS M. WALSH, Defendants. ANSWER AND NEW MATTER AND NOW, comes the defendants, Smith Transport, Inc. and Thomas M. Walsh, by and through their counsel, Robert R. Leight, Esquire and Pietragallo Bosick & Gordon, LLP, and files the within Answer and New Matter to Plaintiffs' Complaint: ANSWER 1. Paragraph 1 of Plaintiffs' Complaint is admitted. 2. After reasonable investigation, these defendants are without sufficient knowledge or information upon which to form a belief as to the truth of allegations contained in paragraph 2 of Plaintiffs' Complaint. Therefore, those allegations are denied and strict proof thereof is demanded at the time of trial. 3. After reasonable investigation, these defendants are without sufficient knowledge or information upon which to form a belief as to the truth of allegations contained in paragraph 3 of Plaintiffs' Complaint. Therefore, those allegations are denied and strict proof thereof is demanded at the time of trial. 4. It is admitted that Smith Transport, Inc. is a Pennsylvania corporation with corporate offices located in 331 E. Closson Road, Roaring Springs, Blair County, Pennsylvania. 5. It is admitted that Thomas M. Walsh is an adult individual who resides at 3512 Carnarvon Avenue, Bristol, Bucks County, Pennsylvania. 6. The allegations contained in paragraph 6 of Plaintiffs' Complaint are denied. To the contrary, on February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. 7. The allegations contained in paragraph 7 of Plaintiffs' Complaint are denied as stated. To the contrary, on February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. 8. The allegations of paragraph 8 of Plaintiffs' Complaint are admitted. 9. The allegations of paragraph 9 of Plaintiffs' Complaint are admitted. 10. The allegations of paragraph 10 of Plaintiffs' Complaint are denied as stated. The tractor-trailer was owned by Smith Trucking and leased to Smith Transport. 11. The allegations of paragraph 11 of Plaintiffs' Complaint are admitted. 12. The allegations of paragraph 12 of Plaintiffs' Complaint are admitted. 13. The allegations of paragraph 13 of Plaintiffs' Complaint are admitted. 14. The allegations of paragraph 14 of Plaintiffs' Complaint are admitted. 15. The allegations of paragraph 15 of Plaintiffs' Complaint are denied as stated. Mr. Walsh is required to notify Smith of material defects or malfunctions of the tractor or trailer. 16. The allegations of paragraph 16 of Plaintiffs' Complaint are admitted. 17. The allegations of paragraph 17 of Plaintiffs' Complaint are admitted. 18. The allegations contained in paragraph 18 of Plaintiffs' Complaint are denied as stated. On February 25, 2005, the tractor that Thomas M. Walsh was driving was black in color. However, the trailer being hauled by the tractor was white in color with the Smith Transport logo on the side of the trailer. 19. The allegations contained in paragraph 19 of Plaintiffs' Complaint are denied as stated. In addition to the lights installed on the four corners of the trailer, the trailer was equipped with back-up and stop lights along with reflector tape located across the sides of the trailer. The trailer met all requirements of the Federal Motor Carrier Safety Administration. 20. The allegations of paragraph 20 of Plaintiffs' Complaint are admitted. 21. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 21 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 22. The allegations of paragraph 22 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 23. The allegations of paragraph 23 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 24. The allegations of paragraph 24 of Plaintiffs' Complaint are denied as stated. Smith is required to maintain the driver's logs for a six-month period for each driver. 25. The allegations of paragraph 25 of Plaintiffs' Complaint are admitted. 26. The allegations of paragraph 26 of Plaintiffs' Complaint are admitted. 27. The allegations of paragraph 27 of Plaintiffs' Complaint are admitted. 28. The allegations of paragraph 28 of Plaintiffs' Complaint are admitted. 29. The allegations contained in paragraph 29 of Plaintiffs' Complaint are admitted in part and denied in part. It is admitted that prior to Walsh departing, Mr. Walsh would have had the responsibility to inspect both the tractor and trailer. The remaining allegations of paragraph 29 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 30. The allegations of paragraph 30 of Plaintiffs' Complaint are denied as stated. Mr. Walsh did not depart from Smith Transport's terminal on February 25, 2005. 31. The allegations contained in paragraph 31 of Plaintiffs' Complaint are denied as stated. It is admitted that Walsh told Pennsylvania State Trooper Henneman that the trailer lighting was malfunctioning upon Walsh's departure from Smith Transport's terminal. 32. The allegations of paragraph 32 of Plaintiffs' Complaint are admitted. 33. The allegations of paragraph 33 of Plaintiffs' Complaint are admitted. 34. The allegations of paragraph 34 of Plaintiffs' Complaint are denied as stated. Mr. Walsh did not depart from Smith Transport Terminal on February 25, 2005. 35. The allegations of paragraph 35 of Plaintiffs' Complaint are admitted. 36. The allegations of paragraph 36 of Plaintiffs' Complaint are denied as stated. Mr. Walsh picked up his load at Kay Dee Designs in Rhode Island for delivery to Ross Distributors. 37. The allegations of paragraph 37 of Plaintiffs' Complaint are denied as stated. The tractor and trailer was owned by Smith Trucking and leased to Smith Transport. 38. The allegations of paragraph 38 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 39. The allegations of paragraph 39 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 40. The allegations of paragraph 40 of Plaintiffs' Complaint are admitted. 41. The allegations of paragraph 41 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 42. The allegations of paragraph 42 of Plaintiffs' Complaint are admitted. 43. The allegations of paragraph 43 of Plaintiffs' Complaint are admitted. 44. Paragraph 44 of the Complaint state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants specifically deny paragraph 44 pursuant to Pa.R.C.P. 1029(e). 45. Paragraph 45 of the Complaint state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants specifically deny paragraph 45 pursuant to Pa.R.C.P. 1029(e). 46. The allegations of paragraph 46 of Plaintiffs' Complaint are admitted. 47. The allegations of paragraph 47 of Plaintiffs' Complaint are admitted. 48. The allegations of paragraph 48 of Plaintiffs' Complaint are admitted. 49. The allegations of paragraph 49 of Plaintiffs' Complaint are denied. 50. The allegations of paragraph 50 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 51. The allegations of paragraph 51 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 52. The allegations of paragraph 52 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 53. Paragraph 53 of the Complaint state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants specifically deny paragraph 53 pursuant to Pa.R.C.P. 1029(e). 54. The allegations of paragraph 54 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 55. Paragraph 55 of the Complaint state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants specifically deny paragraph 55 pursuant to Pa.R.C.P. 1029(e). 56. The allegations of paragraph 56 of Plaintiffs' Complaint are admitted. 57. Paragraph 57 of the Complaint state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants specifically deny paragraph 57 pursuant to Pa.R.C.P. 1029(e). 58. The allegations of paragraph 58 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 59. The allegations of paragraph 59 of Plaintiffs' Complaint are admitted. 60. The allegations of paragraph 60 of Plaintiffs' Complaint are admitted. 61. The allegations contained in paragraph 61 of Plaintiffs' Complaint are denied. 62. The allegations of paragraph 62 of Plaintiffs' Complaint are admitted. 63. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 63 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 64. The allegations of paragraph 64 of Plaintiffs' Complaint are admitted. 65. The allegations of paragraph 65 of Plaintiffs' Complaint are admitted. 66. The allegations of paragraph 66 of Plaintiffs' Complaint are admitted. 67. The allegations of paragraph 67 of Plaintiffs' Complaint are admitted. 68. The allegations contained in paragraph 68 of Plaintiffs' Complaint are denied. 69. The allegations of paragraph 69 of Plaintiffs' Complaint are admitted. 70. The allegations contained in paragraph 70 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 71. The allegations contained in paragraph 71 of Plaintiffs' Complaint are denied pursuant to Pa.R.C.P. 1029(e). 72. The allegations of paragraph 72 of Plaintiffs' Complaint are admitted. 73. The allegations of paragraph 73 of Plaintiffs' Complaint are admitted. 74. The allegations of paragraph 74 of Plaintiffs' Complaint are admitted. 75. The allegations contained in paragraph 75 of Plaintiffs' Complaint are denied. 76. The allegations of paragraph 76 of Plaintiffs' Complaint are admitted. 77. The allegations of paragraph 77 of Plaintiffs' Complaint are admitted. 78. The allegations of paragraph 78 of Plaintiffs' Complaint are admitted. 79. The allegations contained in paragraph 79 of Plaintiffs' Complaint are denied. 80. The allegations of paragraph 80 of Plaintiffs' Complaint are admitted. 81. The allegations of paragraph 81 of Plaintiffs' Complaint are admitted. 82. The allegations of paragraph 82 of Plaintiffs' Complaint are admitted. 83. The allegations of paragraph 83 of Plaintiffs' Complaint are admitted. 84. The allegations of paragraph 84 of Plaintiffs' Complaint are admitted. 85. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the av erments contained in paragraph 85 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 86. The allegations of paragraph 86 of Plaintiffs' Complaint are admitted. 87. The allegations of paragraph 87 of Plaintiffs' Complaint are admitted. 88. The allegations of paragraph 88 of Plaintiffs' Complaint are admitted. 89. The allegations of paragraph 89 of Plaintiffs' Complaint are admitted. 90. The allegations of paragraph 90 of Plaintiffs' Complaint are admitted. 91. The allegations of paragraph 91 of Plaintiffs' Complaint are admitted. 92. The allegations of paragraph 92 of Plaintiffs' Complaint are admitted. 93. The allegations of paragraph 93 of Plaintiffs' Complaint are admitted. 94. The allegations of paragraph 94 of Plaintiffs' Complaint are admitted. 95. The allegations of paragraph 95 of Plaintiffs' Complaint are admitted. 96. The allegations of paragraph 96 of Plaintiffs' Complaint are admitted. 97. The allegations contained in paragraph 97 are denied as stated. Smith Transport terminated Thomas M. Walsh's employment on February 28, 2005. 98. The allegations of paragraph 98 of Plaintiffs' Complaint are admitted. 99. The allegations of paragraph 99 of Plaintiffs' Complaint are admitted. 100. The allegations of paragraph 100 of Plaintiffs' Complaint are admitted. 101. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 101 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 102. The allegations of paragraph 102 of Plaintiffs' Complaint are admitted. 103. The allegations of paragraph 103 of Plaintiffs' Complaint are admitted. 104. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 104 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 105. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 105 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 106. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 106 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 107. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 107 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 108. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 108 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 109. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 109 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. 110. After reasonable investigation, defendants are without information or knowledge sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 110 of Plaintiffs' Complaint. Accordingly, said allegation is denied and strict proof thereof is demanded at the time of trial. COUNTI NEGLIGENCE THOMAS M. WALSH 111. Paragraphs 1 through 110 are incorporated herein by reference as if set forth at length. 112. Paragraph 112 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 112 pursuant to Pa.R.C.P. 1029(e). 113. Paragraph 113 including subparagraphs (a) through (00) state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 113 pursuant to Pa.R.C.P. 1029(e). 114. Paragraph 114 including subparagraphs (a) through (n) state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 114 pursuant to Pa.R.C.P. 1029(e). 115. Paragraph 115 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 115 pursuant to Pa.R.C.P. 1029(e). 116. Paragraph 116 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 116 pursuant to Pa.R.C.P. 1029(e). 117. Paragraph 117 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 117 pursuant to Pa.R.C.P. 1029(e). 118. Paragraph 118 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 118 pursuant to Pa.R.C.P. 1029(e). 119. Paragraph 119 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 119 pursuant to Pa.R.C.P. 1029(e) 120. Paragraph 120 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 120 pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendants demand judgment in their favor and against Plaintiffs along with costs, together with any and all other relief deemed appropriate by the Court. COUNT II 121. Paragraphs 1 through 120 are incorporated herein by reference as if set forth at length. 122. Paragraph 122 is denied as stated. On February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. and was acting within the purpose and scope of his employment with Franklin Logistics. 123. Paragraph 123 is denied as stated. On February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. and was acting within the purpose and scope of his employment with Franklin Logistics. 124. Paragraph 124 is denied as stated. Franklin Logistics, Inc. terminated Thomas M. Walsh's employment on or about February 28, 2005. 125. Paragraph 125 is denied as stated. It is believed that, during an ice storm, a tree fell on a tractor that Mr. Walsh was operating. 126. The allegations of paragraph 126 of Plaintiffs' Complaint are admitted. 127. Paragraph 127 is denied as stated. On February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. and was acting within the purpose and scope of his employment with Franklin Logistics. 128. Paragraph 128 is denied as stated. On February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. and was acting within the purpose and scope of his employment with Franklin Logistics. 129. The allegations of paragraph 129 of Plaintiffs' Complaint are admitted. 130. Paragraph 130 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 130 pursuant to Pa.R.C.P. 1029(e). 131. Paragraph 131 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 131 pursuant to Pa.R.C.P. 1029(e). 132. Paragraph 132 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 132 pursuant to Pa.R.C.P. 1029(e). 133. Paragraph 133 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 133 pursuant to Pa.R.C.P. 1029(e). 134. Paragraph 134 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 134 pursuant to Pa.R.C.P. 1029(e). 135. Paragraph 135 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 135 pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendants demand judgment in their favor and against Plaintiffs along with costs, together with any and all other relief deemed appropriate by the Court. COUNT II NEGLIGENCE PER SE 136. Paragraphs 1 through 135 are incorporated herein by reference as if set forth at length. 137. The allegations of paragraph 137 of Plaintiffs' Complaint are admitted. 138. Paragraph 138 is denied as stated. On February 25, 2005, Thomas M. Walsh was an employee of Franklin Logistics, Inc. and was acting within the purpose and scope of his employment with Franklin Logistics. 139. Paragraph 139 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 139 pursuant to Pa.R.C.P. 1029(e). 140. Paragraph 140 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 140 pursuant to Pa.R.C.P. 1029(e). 141. Paragraph 141 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 141pursuant to Pa.R.C.P. 1029(e). 142. Paragraph 142 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 142 pursuant to Pa.R.C.P. 1029(e). 143. Paragraph 143 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 143 pursuant to Pa.R.C.P. 1029(e). 144. Paragraph 144 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 144 pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendants demand judgment in their favor and against Plaintiffs along with costs, together with any and all other relief deemed appropriate by the Court. COUNT IV LOSS OF CONSORTIUM 145. Paragraphs 1 through 144 are incorporated herein by reference as if set forth at length. 146. Paragraph 146 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 146 pursuant to Pa.R.C.P. 1029(e). 147. Paragraph 147 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 147 pursuant to Pa.R.C.P. 1029(e). 148. Paragraph 148 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 148 pursuant to Pa.R.C.P. 1029(e). 149. Paragraph 149 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 149 pursuant to Pa.R.C.P. 1029(e). 150. Paragraph 150 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 150 pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendants demand judgment in their favor and against Plaintiffs along with costs, together with any and all other relief deemed appropriate by the Court. COUNT V VICARIOUS LIABILITY 151. Paragraphs 1 through 150 are incorporated herein by reference as if set forth at length. 152. Paragraph 152 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 152 pursuant to Pa.R.C.P. 1029(e). 153. Paragraph 153 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 153 pursuant to Pa.R.C.P. 1029(e). 154. Paragraph 154 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 154 pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendants demand judgment in their favor and against Plaintiffs along with costs, together with any and all other relief deemed appropriate by the Court. COUNT VI NEGLIGENCE 155. Paragraphs 1 through 154 are incorporated herein by reference as if set forth at length. 156. Paragraph 156 including subparagraphs (a) through (e) state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 156 pursuant to Pa.R.C.P. 1029(e). 157. Paragraph 157 including subparagraphs (a) through (k) state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 157 pursuant to Pa.R.C.P. 1029(e). 158. Paragraph 158 states legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 158 pursuant to Pa.R.C.P. 1029(e). 159. Paragraph 159 state legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, these defendants deny paragraph 159 pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendants demand judgment in their favor and against Plaintiffs along with costs, together with any and all other relief deemed appropriate by the Court. NEW MATTER 160. To the extent that discovery in this case and the facts produced at trial demonstrate the availability of any of the affirmative defenses preserved by virtue of the provisions of the Pennsylvania Rules of Civil Procedure, these defendants reserve the right to offer such facts in support of any such affirmative defenses so preserved. 161. Defendants reserve the right to amend this Answer and New Matter to plead the existence of any additional affirmative defenses that may become available or known to the defendants or in the course of discovery of this case or subsequent to the time of filing of this Answer and New Matter. 162. Plaintiffs' Complaint fails to state any cause of action against the defendants. 163. Plaintiffs' claims are barred and/or limited by Plaintiffs' comparative negligence and/or contributory negligence. These defendants assert the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. §102, as an affirmative defense of Plaintiffs' claims. 164. Some or all of Plaintiffs' alleged injuries may have resulted from pre-existing conditions not related to the alleged acts and/or admissions of these defendants. 165. Defendants assert that the Plaintiffs' claims were caused by intervening and/or by superseding causes not within the control of these defendants. 166. These Defendants plead all applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law as affirmative defenses to Plaintiffs' claim. 167. Any alleged damages were caused by the carelessness, recklessness, and/or negligence of Plaintiff David Kinzler, which consisted of the following: a. Driving too fast for conditions that existed; b. In failing to observe the conditions that existed and maintaining a proper and reasonable lookout for vehicles; C. Plaintiff failed to exercise reasonable care for his own safety under the conditions then existing; d. In failing to use due regard for his safety; and e. In failing to be attentive. 168. The Complaint states no cause of action for alleged punitive damages since punitive damages under the facts and circumstances of this case do not rise to the level of willful or wanton misconduct. 169. The plaintiffs' claims for punitive damages are a violation of the due process of law clause of the Fourteenth Amendment of the United States Constitution, is a violation of the Eighth Amendment prohibition of ex post facto laws and laws impairing the obligation of contracts contained in Section 10 paragraph 1, of Article 1 of the United States Constitution and is a violation of the Pennsylvania Constitution. 170. The imposition of punitive damages in this action violates the Defendants' constitutional right of due process under the Pennsylvania and the United States Constitutions because it creates an unnecessary, undue risk of an improper verdict on the issue of liability, on the measures of compensatory damages, or the issue of whether to award punitive damages and on the measure of punitive damages. 171. All claims for punitive damages against this defendant are barred by the due process clause of the Fourteenth Amendment to the United States Constitution, the "double jeopardy" clause of the Fifth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment and the proscribe of the Eighth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment prohibiting the imposition of excessive fines. Respectfully submitted, PIE ALLO BOSICK ORDON, LLP By: R bert R. Leight, Esquire(/ Counsel for Defendants VERIFICATION I, Thomas M. Walsh, have read the foregoing ANSWER AND NEW MATTER. The statements therein are correct to the best of my personal knowledge, information and belief. This statement and Verification are made to the penalties of 18 Pa.C.S. § 4904 relating to unsworn fabrication to authorities which provides that if I knowingly make false averments, I may be subject to criminal penalties. Signature 0910/l?x7 Date VERIFICATION I, Charles W. Costello, III, Director of Accident Control and Driver Safety Training of Smith Transport, Inc., verify that the statements contained in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. This statement of Verification is made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities which provides that if I knowingly make false statements, I may be subject to criminal penalties. -6 Z' /') Signature ?11t5(°TOr oR 11 CC?OE?z lbnrMl s dr?oes Title 6 CAVtrV 'T?zR-,vN- W /a-) /d7 Date f ? CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing ANSWER AND NEW MATTER was served via U.S. mail this 26th day of September 2007, upon the following: Jason Kutulakis, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 (Attorneys for Plaintiffs) , BOSICK & GORDON LLP y R. Lei [ , rv r7 ~J IoM & N ULAK1S Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 David and Kay Kinzler Plaintiffs V. Smith Transport, Inc., Thomas M. Walsh and Franklin Logistics Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term : Civil Action -Law Jury Trial Demanded PLAINTIFF'S RESPONSE TO DEFENDANTS' NEW MATTER 1. The assertions contained in paragraph 160 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiffs Complaint. 2. The assertions contained in paragraph 161 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiffs Complaint. 3. The assertions contained in paragraph 162 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiffs Complaint. 4. The assertions contained in paragraph 163 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiff s Complaint. 5. The assertions contained in paragraph 164 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiff s Complaint. 6. The assertions contained in paragraph 165 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiff s Complaint. 7. The assertions contained in paragraph 166 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiff s Complaint. 8. The assertions contained in paragraph 167 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiffs Complaint. 9. The assertions contained in paragraph 168 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiff s Complaint. 10. The assertions contained in paragraph 169 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiffs Complaint. 11. The assertions contained in paragraph 170 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiff s Complaint. 12. The assertions contained in paragraph 171 of Defendant's New Matter are conclusions of law to which no response is required as the same are deemed denied. To the extent that any such allegation sets forth a factual averment the same are generally denied in accordance with Pa. R.C.P. 1029(e), and are denied for the reasons already set forth in Plaintiffs Complaint. Respectfully submitted, ABOM & ATMI .AMISU P Jas n P. u t ak' , Esquire A mey I.D.: 0411 1 36 South Hanover Street Carlisle, PA 17103 (717) 249-0900 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, I, Jason P. Kutulakis, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Plaintiff s Response to Defendants' New Matter via first-class mail at the following: Robert Leight, Esquire Pietragallo Bosick & Gordon, LLP 38th Floor One Oxford Centre Pittsburgh, PA 15219 DATE )'0..' -1 d TT `J i =' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, CIVIL DIVISION DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., THOMAS M. WALSH, and FRANKLIN LOGISTICS, Defendants. NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO Pa.R.C.P. 4009 DIRECTED TO EXEL LOGISTICS, INC. Filed on Behalf of Defendants: Smith Transport, Inc. and Franklin Logistics Counsel of Record for this Party: Robert R. Leight, Esquire PA I.D. No. 33733 Pietragallo Bosick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., THOMAS M. WALSH and FRANKLIN LOGISTICS, Defendants. NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO Pa.R.C.P. 4009 DIRECTED TO EXEL LOGISTICS. INC. Kindly take notice that Defendants, Smith Transport, Inc. and Franklin Logistics, intend to serve a subpoena identical to that which 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 any objection to the subpoena. If no objection is made, the subpoena maybe served. Date: December 13, 2007 Respectfully submitted, , LLP By: f 'V v- i ( o ert R. Leigh t, Esquire Counsel for Defendants, S ith Transport and Franklin Logistics COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID AND KAY KINZLER VS. 07-5600 SMITH TRANSPORT, INC. AND File No. THOMAS M. WALSH AND FRANKLIN LOGISTICS SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: EXEL LOGISTICS, INC., 597 ALEXANDER SPRING ROAD, CARLISLE, PA 17015 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ANY AND ALL EMPLOYMENT RECORDS OF DAVID KINZLER INCLUDING PERSONNEL RECORDS, HEALTH RECORDS, PHYSICAL EXAM RECORDS, PENSION RECORDS, WORKERS' COMPENSATION RECORDS AND/OR SALARY INFORMATION at ONE OXFORD CENTRE, 38TH FLOOR, 301 GRANT ST., PITTSBURGH, PA 15219 (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: ROBERT R. LEIGHT, ESQUIRE ADDRESS: ONE OXFORD CENTRE, 38TH FLOOR 301 GRANT STREET PITTSBURGH, PA 15219 TELEPHONE: 412-263-200o SUPREME COURT ID #33733 ATTORNEY FOR: SMITH TRANSEMT FRANKLIN LOGISTICS Date: /o2& A7 'S off the Court BY THE COURT: S Prothonotary, Civil Div' n uiseP ty CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO Pa.R.C.P. 4009 DIRECTED TO EXEL LOGISTICS, INC. was served via U.S. mail this 13'h day of December, 2007, upon the following: Jason Kutulakis, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 (Attorneys for Plaintiffs) John A. Statler, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (Counsel for Thomas Walsh) PIETRAGALLO, ICK & GORD LLP By: i r I Robe Leight, Esquire C) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, CIVIL DIVISION DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH, Defendants. PRAECIPE FOR WITHDRAWAL OF APPEARANCE AND ENTRY OF APPEARANCE Filed on Behalf of Defendant: Smith Transport, Inc. and Franklin Logistics Counsel of Record: Robert R. Leight, Esquire PAID No. 33733 Pietragallo Bosick & Gordon, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 Filed on behalf of Defendant Thomas M. Walsh: Counsel of Record: John A. Statler, Esquire PAID No.: 43812 Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 r f. ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH, Defendants. PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly withdraw the appearance of Robert R. Leight, Esquire as counsel of record for Defendant, Thomas M. Walsh, in the above-captioned case. Respectfully submitted, By: Pietragallo Bosick & Gordon, LLP Robert R. Leight, Es ire ' Counsel for Smith Tr sport, Inc. and Franklin Logistics r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH, Defendants. PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter the appearance of John A. Statler, Esquire as counsel of record for Defendant, Thomas M. Walsh, in the above-captioned case. Respectfully submitted, Johnson, Duffie, Stewart & Weidner By: John A. Statler, Esqui Counsel for Thomas M. Walsh #-a, CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe fro Withdrawal of Appearance and Praecipe for Entry of Appearance upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the ? ay of 2007, addressed to the following: Jason P. Kutulakis, Esquire Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 Robert R. Leight, Esquire Pietragallo, Bosick & Gordon, LLP One Oxford Centre 38th Floor Pittsburgh, PA 15219 ON, DUFFIE, STEWART & WEIDNER By: John A. Statler, Es4luire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Thomas M. Walsh N ? C `r -n . r'I i 1pt m ? t,?? 33 C-n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs, CIVIL DIVISION DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH, PRAECIPE FOR WITHDRAWAL OF APPEARANCE AND ENTRY OF APPEARANCE Defendants. Filed on Behalf of Defendants: Smith Transport, Inc. and Franklin Logistics Counsel of Record: Robert R. Leight, Esquire PA ID No. 33733 Pietragallo Gordon Alfano Bosick & Raspanti, LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 263-2000 Counsel of Record: June J. Essis, Esquire PAID No.: 54183 Fineman Krekstein & Harris, P.C. United Plaza, Suite 1800 30 S. 17`" Street Philadelphia, PA 19103 (215) 893-9300 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH, Defendants. PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly withdraw the appearance of Robert R. Leight, Esquire as counsel of record for Defendants, Smith Transport, Inc. and Franklin Logistics, in the above-captioned case. Respectfully submitted, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs, DOCKET NO.: 07-5600 V. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH, Defendants. PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter the appearance of June J. Essis, Esquire as counsel of record for Defendants, Smith Transport, Inc. and Franklin Logistics, in the above-captioned case. Respectfully submitted, Fineman, Krekstein & Harris lBy: June J. Ess' ,Esquire CERTIFICATE OF SERVICE I, JUNE J. ESSIS, ESQUIRE, hereby certify that a true and correct copy of the foregoing Praecipe for Withdrawal of Appearance and Praecipe for Entry of Appearance has been served on the following via U.S. Mail the date set forth below: Jason P. Kutulakis, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Robert R. Leight, Esquire Pietragallo Gordon Alfano Bosick & Raspanti, LLP One Oxford Centre - 38th Floor Pittsburgh, PA 15219 Dated: i d FINEMAN FAQKSTEIN & HARRIS, P.C. BY: Jun/Essis, (00086211;v 1 ) ?r ?„ h ABOM CSZ' &UTLiI .AKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 David and Kay Kinzler Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term Smith Transport, Inc. and Civil Action -Law Thomas M. Walsh, Defendants Jury Trial Demanded TO THE COURT ADMINISTRATOR AND PROTHONOTARY: PRAECIPE TO SCHEDULE A CASE MANAGEMENT CONFERENCE Please schedule this matter for a case management conference with the Court of Common Pleas. Respectfully submitted, ABOM & KUTULAKIS, LLP Date: ? 36 Wayne M nick, Esquire 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney ID No. 53150 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this '_?O-Ya- day of May, 2008, I, Wayne Melnick, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing PRAECIPE TO SCHEDULE A CASE MANAGEMENT CONFERENCE by First Class U.S. Mail, postage pre-paid, addressed to the following: John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30S.17 Ih Street, Suite 1800 Philadelphia, PA 19103 f Wayne Me ick, Esquire -77 CID - ,; CZ) ? r - '"J C." , ABOM ?' KIITLILAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 David and Kay Kinzler IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term v. Smith Transport, Inc. and Civil Action - Law Thomas M. Walsh, Defendants Jury Trial Demanded PRAECIPE TO WITHDRAW APPEARANCE Please withdraw my appearance on behalf of the above-named Plaintiffs, David and Kay Kinzler. ABOM & KUTULAKIS, L.L.P. Date: S-??'j -U?' A? John W. Carter, Esquire 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney ID #202849 PRAECIPE TO ENTER APPEARANCE Please enter my appearance on behalf of the above-named Plaintiffs, David and Kay Kinzler. ABOM & KUTULAKIS, L.L.P. Date: 5 a 9 - U $ Wayne eln ck, Esquire 36 South Hanover Street Carlisle, PA 17013 (717)249-0900 Attorney ID #202849 .I . --0 CERTIFICATE OF SERVICE 0 AND NOW, this 3 day of May, 2008, I, Wayne Melnick, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Praecipe for Withdraw/Entry of Appearance by First Class U.S. Mail addressed to the following: June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17'' Street, Suite 1800 Philadelphia, PA 19103 John A. Stader, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 1 Wayn Melnick, Es ' e ?: _ ?-?:? ? _ - ?3 ?' :? c,,; ?; a' r-, _,?,., ., ?.?s ?; .l ?y4F `` ?BQM & LITLILAKIS Wayne Me/nick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 David and Kay Kinzler Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term V. Smith Transport, Inc. and Thomas M. Walsh, Defendants : Civil Action -Law : Jury Trial Demanded TO THE COURT ADMINISTRATOR AND PROTHONOTARY: AMENDED PRAECIPE TO SCHEDULE A CASE MANAGEMENT CONFERENCE AND NOW this a`1 day of June, 2008, comes Wayne Melnick, Esquire, Attorney for Plaintiffs and files this Amended Praecipe to Schedule a Case Management Conference and avers as follows: 1. On May 29, 2008, Plaintiff filed a Praecipe to Schedule a Case Management Conference. 2. This is an Amendment to that Praecipe to Schedule a Case Management Conference. 3. No Judge of the Cumberland County Court of Common Pleas has ruled upon any other issue in this or any related matter. 4. On or about June 18, 2007, while this case was still before the Philadelphia Court of Common Pleas, a Case Management Order was issued scheduling the various stages of this case. (See Exhibit A) 5. All dates in the Case Management Order have passed without completion. 6. Plaintiff now desires a new Case Management Order resetting the dates in the original Case Management Order. 7. Counsel for Defendant, Walsh, has no objection to the scheduling of a Case Management Conference. 8. Counsel for Defendants, Smith Transport and Franklin Logistics indicates she prefers to schedule depositions of Plaintiffs before committing to a Case Management Conference. 9. As of this date, counsel for Defendants, Smith Transport and Franklin Logistics, have not scheduled Plaintiffs depositions. WHEREFORE, Plaintiffs pray that This Honorable Court will schedule a Case Management Conference for this matter. Respectfully submitted, ABOM & KUTULAKIS, LLP Date: b)2i j o 3 ayne Me 'ck, Esquire 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney ID No. 53150 Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION KINZLER ETAL February Term 2007 VS No. 01727 SMITH TRANSPORT INC ETAL DOCKS t'LD CASE MANAGEMENT ORDER JUN 18 2007 EXPEDITED TRACK JOAN SULLIVAN AND NOW, 18-JiJN-2007, it is Ordered that: CIVIL CASE MANAGEMENT 1. The case management and time standards adopted for expedited track cases shall be applicable to this case and are hereby incorporated into this Order. 2. All discovery on the above matter shall be completed not later than OS--NOV 2007. Plaintiff shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial to all other parties not later than 05-NOV-2007. 4. Defendant and any additional defendants shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial not later than 03-DEC-2007. All pre-trial motions shall be filed not later than 03-DEC-2007. 6. A settlement conference may be scheduled at any time after 03-DEC-2007. Prior to the settlement conference all counsel shall serve all opposing counsel and file a settlement memorandum containing the following: (a). A concise summary of the nature of the case if plaintiff or of the defense if defendant or additional defendant; (b). A statement by the plaintiff or all damages accumulated, including an itemization of injuries and all special damages claimed by categories and amount; (c). Defendant shall identify all applicable insurance carriers, together with applicable limits of liability. 7. A pre-trial conference will be scheduled anytime after 04-FEB-2008. Fifteen days prior to pre-trial conference, all counsel shall serve all opposing counsel and file a pre-trial memorandum containing the following: (a)• A concise summary of the nature of the case if plaintiff or the defense if defendant or additional defendant; (b)• A list of all witnesses who may be called to testify at trial by name and address. Counsel should expect witnesses not listed to be precluded from testifying at trial; (c)• A list of all exhibits the party intends to offer into evidence. All exhibits shall be pre-numbered and shall be exchanged among counsel prior to the conference. Counsel should expect any exhibit not listed to be precluded at trial; (d)• Plaintiff shall list an itemization of injuries or damages sustained together with all special damages claimed by category and amount. This list shall include as appropriate, computations of all past lost earnings and future lost earning capacity or medical expenses together with any other unliquidated damages claimed; and (e). Defendant shall state its position regarding damages and shall identify all applicable insurance carriers, together with applicable limits of liability; (fl. Each counsel shall provide an estimate of the anticipated length of trial. 8. It is expected that the case will be ready for trial 03-AMR-2008, and counsel should anticipate trial to begin expeditiously thereafter. 9. All counsel are under a continuing obligation and are hereby ordered to serve a copy of this order upon all unrepresented parties and upon all counsel entering an appearance subsequent to the entry of this Order. BY THE COURT.• a,-LLIAM J. MANFREDI, J. TEAM LEADER JMS85474(REV 11/04) CERTIFICATE OF SERVICE AND NOW, this a4jy?' day of June, 2008, I, Wayne Melnick, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing AMENDED PRAECIPE TO SCHEDULE A CASE MANAGEMENT CONFERENCE by First Class U.S. Mail, postage pre-paid, addressed to the following: John A. Stader, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17" Street, Suite 1800 Philadelphia, PA 19103 Wayne e ck, Esquire L ,? t C?. ?J WN S 12Q06? David and Kay Kmzler IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term V. Smith Transport, Inc. and Civil Action - Law Thomas M. Walsh, Defendants Jury Trial Demanded ORDER AND NOW, this 11 V-day of , 2008, upon consideration of the Amended Praecipe to Schedule a Case Management Conference, said Case Management Conference is scheduled for the 5`1?-day of Ot-av ? , 2008, in Courtroom Number S at D D o'clock, M. BY THE COURT, Distribution: Wayne Melnick, Esquire John Statler, Esquire -7- II - b P June Essis, Esquire 9c wv Inr eooz AHVio ???o TA?om & Nu Ul AKIS Jason P. Kutulakis, Esquire Attorney I.D. No.: 80411 Wayne Melnick Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, CUMBERLANDCOUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331. East Closson Road Roaring Spring, PA 1.6673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded TO: THE HONORABLE M.L. EBERT MOTION TO COMPEL PRODUCTION OF DOCUMENTS 0 AND NOW, this day of August, 2008, comes the Plaintiffs, David and Kay Kinzler, by and through their counsel, Jason P. Kutulakis and Wayne S. Melnick, and move this Honorable Court to compel the Defendant, Smith Transport, Inc., (hereinafter referred to as "Defendant Smith") to produce the requested documents and as reason thereof states: 1. The above matter is currently scheduled for a Case Management Conference before Judge Ebert on November 5, 2008, no other matters have been submitted for judicial disposition. 2. On July 19, 2007, Plaintiffs forwarded the attached Request for Production of Documents (Exhibit "A") to Defendants. 3. On or about October 3, 2007, Defendant Smith filed responses to Plaintiffs' Request for Production of Documents. 4. On January 30, 2008, Plaintiffs wrote to counsel for Defendant Smith. That letter identified several outstanding documents requested but not produced by Defendant Smith: maintenance and driver logs of the truck/trailer involved in the accident for the six months prior to the accident; the Defendant's employee handbook; and any discoverable material contained in two boxes of materials received by Attorney Essis from Attorney Leight concerning this case. (See Exhibit "B") 5. On or about February 5, 2008, Defendant Smith's counsel wrote to counsel for Plaintiffs. In that letter, counsel for Defendant Smith indicated that she would review the file and Plaintiffs requested discovery and promised to forward any documents not previously provided. (See Exhibit "C") 6. On May 21, 2008, undersigned counsel telephoned counsel for Defendant Smith and left a message requesting outstanding discovery material including post accident reports, pre- accident reports and post accident photographs. 7. On May 29, 2008, undersigned counsel wrote to Defendant Smith's counsel requesting outstanding discovery materials including post accident reports, pre accident reports, and post accident photographs. (See Exhibit "D") 8. On June 5, 2008, counsel for Defendant Smith wrote to Plaintiffs counsel and indicated that she would be providing additional documentation, if it exists, including: the repair order detailed reports for thirty (30) days prior to the accident; drivers logs from January 26, 2005 to February 18, 2005; complete copy of handbook; any electronic communications that could be located by Defendant Smith; and color post accident photographs. (See Exhibit "E"). 9. On June 9, 2008, counsel for Defendant Smith sent an email to undersigned counsel indicating that due to a filing error, she was momentarily unable to locate Defendant Smith's responses to Plaintiffs discovery. Defendant Smith's counsel referenced the additional documentation listed in her June 5, 2008, correspondence and repeated her promise to make every effort to obtain all documents listed therein if they exist. (See Exhibit "F"). 10. On June 16, 2008, undersigned counsel wrote to counsel for Defendant Smith and Summarized the items outstanding from Defendant Smith's response to Plaintiffs Request for Production of Documents. That letter pointed out to counsel for Defendant Smith that despite the promise to produce repair and maintenance logs from the month preceding the accident, Defendant has never produced the maintenance logs from the six months preceding the accident as requested by Plaintiffs. (See Exhibit "G"). 11. On June 24, 2008, undersigned counsel sent an email correspondence to Defendant Smith's attorney reminding her of the outstanding documents from Plaintiffs Request for Production of Documents and emphasizing the need for color versions of the post accident photographs. (See Exhibit "H"). 12. On June 24, 2008, counsel for Defendant Smith sent an email correspondence to undersigned counsel indicating that she had been working to get the documents listed in her June 5, 2008, correspondence and to identify any additional documents and to obtain negatives of the photographs sought by Plaintiffs. (See Exhibit "I") 13. On August 14, 2008, Plaintiffs finally received additional Documents from Defendant Smith. 14. Defendant Smith's August 4, 2008, response failed to include any repair logs from the six months preceding the accident. Instead, counsel for Defendnt Smith indicated that Defendant Smith had misunderstood Plaintiffs requests and collected only repair logs for the months following the accident. 15. Defendant Smith's August 4, 2008, response provides a complete company handbook but rather than produce a copy that contains the page missing from the handbook originally produced, Defendant Smith produced a revised handbook dated 6/08, which post dates the accident. Plaintiffs are still without a complete copy of the handbook in use at the time of the accident. 16. The documents requested by Plaintiffs are relevant to the subject matter of the litigation. 17. Defendant Smith has asserted no privilege with respect to these requested documents. The documents requested in this Motion to Compel are relevant to the subject matter involved in the action and will substantially aid in the trial of this case. 18. The documents requested in this Motion to Compel are relevant to the subject matter involved in the action and will substantially aid the Court in the orderly disposition of this litigation. 19. Plaintiffs believe that Defendant Smith is opposed to this Motion. Counsel for Defendant Walsh has indicated to undersigned counsel that Defendant Walsh takes no position with respect to this Motion. WHEREFORE, Plaintiff s pray This Honorable Court to grant its Motion to Compel production of documents and to order Defendant, Smith Transport, Inc. to supply full and complete responses to the Request for Production of Documents propounded by Plaintiffs within ten (10) days of your decision by producing all repair logs for the six month time period preceding the accident and a complete copy of the company handbook in effect at the time of the accident. Date: Respectfully submitted, ABOM & KUTULAKIS, L.L.P. By: Wayne Melm squire Attorney I.D. No. 53150 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants File No: 070201727 Civil Action - Law Jury Trial Demanded REQUEST FOR PRODUCTION OF DOCUMENTS TO: Smith Transport, Inc. c/o, Robert Leight, Esquire Attorney for Defendant Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiffs, David and Kay Kinzler, by their attorneys, Abom & Kutulakis, L.L.P., request that you produce copies of the following documents, at its expense, within thirty (30) date of service of this Request. INSTRUCTIONS If you object to the production of any document on the grounds that the attorney-client, attorney work product or any other privilege is applicable thereto, you shall, with respect to that document: (a) State its date; (b) Identify its author; (c) Identify each person from whom the document was received; (d) Identify each person who received it; (e) State the present location of the document and all copies thereof, (f) Identify each person who has ever had possession, custody or control of it or a copy thereof; and (g) Provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and to permit an adjudication of the propriety of that claim. As referred to herein, "document" includes written, printed, typed, recorded, or graphic matter, however produced or reproduced, including correspondence, emails, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any other writings (including copies of any of the foregoing) regardless of whether you, your former or present counsel, agents, employees, officers, insurers, or any other person acting on your behalf, are now in possession, custody, or control thereof. DOCUMENTS REQUESTED All statements, signed statements, transcripts of recorded statements or interviews of any person or witness relating to, referring to or describing any of the events described in the Complaint. 2. All expert opinions, reports, summaries or other writings in your custody or control, or in the control of your attorney or insurers, which relate to the subject matter of this litigation. 3. All documents, correspondence or other drawings, sketches, diagrams, or writings in your custody or control, or in the custody or control of your attorney or insurers, which relate to the subject matter of this litigation. 4. All documents prepared by you, or by any insurer, representative, agent, or anyone on your behalf, except your attorney(s), during the investigation of the incident in question or any of the events or allegations described in the Complaint. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. 5. All photographs or videotapes of or relating to any item or thing involved in this litigation. 6. All recordings of electronic data recorders or "black boxes" in the tractor trailer involved in the accident for the day prior, day of and day after the accident. 7. The entire Driver Qualification file (i.e., those records required to be created and maintained by the Federal Motor Carrier Safety Regulations, Parts 382 and 391) for Thomas M. Walsh, including, but not limited to: (a) Pre-employment questionnaire; L-11 (b) Application for employment; (c) All medical examinations and certification of medical examination cards; (d) Driver's violation statements for each 12 months of employment; (e) Driver's road test; (f) Driver's written test; (g) Road and written test certifications issued by defendants or other organizations; (h) All past employment inquiries sent to former employers and their responses; (i) Inquiries and answers on driver's license records of violations and accidents directed to, and received from, any state agencies; and 0) Copies of all road or written test cards, medical cards, motor carrier certification of driver qualification and any other cards given to driver by defendants or any other motor carrier. 8. All documents related to and including the Record of Duty Status (RODS) (aka driver's log) for the six months preceding the accident, the week of and the week after the accident of your employee, Thomas M. Walsh. 9. All incident reports involving the driver, Thomas M. Walsh. 10. All `70 hour' and other compliance audits of the driver, Thomas M. Walsh. 11. All trip receipts, weight tickets, bills of lading, and operational documents that could be used to conduct log audits and verify log accuracy. 12. All statements as defined by Pa.R.C.P. No. 4003.4. 13. All e-mail and other communications between the driver and dispatcher or carrier on the date prior and date of and date after the accident. 14. All statements and/or transcripts of interviews of fact witnesses obtained in this matter. 15. All documents identified in your Answers to any set of Interrogatories propounded by any party in this litigation. 16. A copy of the declarations page of any insurance policy applicable to this litigation. 17. All Operational or run documents ("run" refers to the transportation and/or movements of a tractor trailer, regardless of load size or type or whether empty or unloaded, from a point of origin to final destination, including all stops in between) grouped by each separate trip made by Thomas M. Walsh dating from six months prior to the date of the collision through the time that the cargo on the trailer involved in the collision was actually delivered. These include, but are not limited to: (a) Driver's trip envelopes and/or trip reports, daily loads or work reports, fuel purchased reports, or any reports made by a driver to you, including daily, weekly or monthly cargo transported, time or distance work records; (b) Receipts for any trip expenses or purchases regardless of type, such as fuel, food, lodging, equipment maintenance or repair, special or oversize permits, bridge or toll road, loading or unloading, or other receipts; (c) Cargo pickup or delivery orders prepared by any and all of the defendants, brokers, involved shippers or receivers, motor carriers, drivers, or other persons or organizations; (d) All bills of lading and/or manifests prepared or issued by any shippers, brokers, transporting motor carriers, receivers of cargo or defendants. This also includes copies of bills of lading and manifests that show signed receipts for cargo along with dates and times of cargo pickup and delivery; (e) All equipment or cargo loading, unloading or detention records along with any other documents showing pickup and delivery dates and times or detention of equipment or cargo; (f) All freight bills, including cargo pickup and delivery copies; (g) All written or electronic instructions, orders, or advice given to Thomas M. Walsh in reference to cargo transported, routes to travel, pickup or delivery times by defendants, shippers, receivers, or other persons or organizations; (h) All dispatch records (written or electronic) indicating assignment of equipment and drivers to cargo pickup and delivery, dates and times of pickup and delivery and any other related factors; (i) Any call-in records or other written or electronic records indicating communications between you and Thomas M. Walsh in reference to the movement of cargo, or the day-to-day operations of the equipment and/or driver; 0) All accounting records, cargo transportation bills and subsequent payments or other records indicating billings for transportation or subsequent payment for the transportation of cargo. Copies of both the front and back of canceled checks are requested; (k) All initial or rough driver's trip check in settlement sheets along with all final accounting documents, and computer printouts showing expenses and payments to Thomas M. Walsh in reference to a trip or trips; (1) Any and all fuel, mileage and purchase reports or records that you or Thomas M. Walsh created; (m) All Corn Check, Cash Control or similar service records, and copies of front and back of all checks received or disbursed in reference to the transportation performed regardless of disbursement reason, inclusive of all checks to Thomas M. Walsh; (n) Any and all computer printouts of purchases, withdrawals, advances or other transactions that were provided to you by, or is available from, others, including, but not limited to, Corn Check or Cash Control Corp., listed by driver name or number or truck number, including all available information such as the location and time of fuel purchases and mileage for the dates indicated; (o) Any and all special or oversize permits and related documents or requests issued to, or by, any state agency to transport cargo over their territories regardless of the form of the permit; and (p) Any and all other "trip related documents" created by the defendants or any other persons or organizations not defined herein, but in the possession of any of the defendants. 18. The complete Driver personnel file and/or any otherwise titled files that contain documents directed to, received from, or about Thomas M. Walsh, including, but not limited to: (a) Hiring, suspension, termination or warning notices and any other disciplinary type documents; (b) Prior industrial, vehicular, cargo or other types of accidents or loss reports inclusive of cargo loss or shortage reports, and related documents to each incident; (c) FMCSR or other law enforcement terminal or roadside equipment or driver inspections, reports, traffic citations, and traffic warnings; (d) Training and union arbitration files; and (e) All other documents, regardless of origin or subject, maintained by the defendants in reference to Thomas M. Walsh. 19. Any and all of Thomas M. Walsh's (and any codriver's) daily logs and 70-hour summaries created by each driver for the six-month period prior to the collision through the delivery of the load involved in the collision. (Note: If Thomas M. Walsh's operation was limited to within 100 air miles of dispatch, then all time records for the driver created pursuant to FMCSR § 395.1(e)(5) for the six-month time period preceding the collision through the day of the collision.) 20. Any and all internal policies and procedures, pamphlets, handouts, videos, DVDs or similar materials related to safety that you had in effect or used to train drivers on the date of the collision, whether actually provided to any of your drivers, dispatchers, safety directors, operation managers and/or auditors. 21. Any and all audits of Thomas M. Walsh's (and any codriver's) logs, on-duty and driving time that you created during the six-month period prior to the collision through the delivery of the cargo being hauled at the time of the collision. 22. Any and all DOT audits of your operation, and exit reports to you, in the five years prior to the collision through the present date. 23. The complete maintenance files on the tractor and on the trailer involved in the collision including, but not limited to, any inspections, repairs or maintenance, as well as daily pre-trip inspection reports for the six-month period prior to the collision through the time of the return of the tractor and trailer for service following the collision. 24. Each policy, procedure, program, or manual in place at the time of the collision, and any being in effect today. 25. The dispatch and communication records between dispatch and the driver for the six- month time period prior the collision through the time of the delivery of the load involved in the collision including, but not limited to, phone records, a-mails or other electronic communication records. 26. All onboard data recorders (e.g., black boxes, engine data recorders or electronic control modules) and any electronic data, printout or analysis of information from such devices relating to the collision. 27. All electronic or satellite vehicular movement recordings, documents, or other records, whether created or maintained by you or by a third party on your behalf, such as QualComm, HighwayMaster, American Mobile Satellite Corp. or any similar organization, or any otherwise described documents generated by whatever means that document the physical movements and/or geographic locations of any tractor being operated by Thomas M. Walsh for the six-month period prior to the collision through delivery of the load being carried at the time of the collision. 28. A blank form of each and every operational document utilized, or supposed to be utilized, by you or your drivers in effect on the date of the collision. 29. 30. 31 32. 33. 34. 35. Any and all statements, written or oral, transcribed or untranscribed, provided by, or taken from, witnesses, your drivers, or any of your L-15 employees or agents, regarding the collision or the events leading up to or following that collision. The factual portion of your internal investigation of this incident, including, but not limited to determination of whether the accident was chargeable against the driver. All documents identified in response to Non-Uniform Interrogatory 3(b) that accompanied these requests for production, including, but not limited to all reports, photographs, drawings and diagrams of the scene and vehicles involved in the collision. Any and all accident files, records and reports of this incident sent by, or on behalf of, you to the DOT and/or any other governmental or regulatory entity. Any and all contracts, leases, or other written agreements between you and Thomas M. Walsh, the owner/operator, or owner of the tractor or trailer. Declaration pages for all insurance policies for the tractor and for the trailer(s) which provided coverage for the equipment at the time of the collision. All documents which you intend to rely upon or introduce at trial. Abom & Kutulakis, LLP John W. Carter, Esquire 36 South Hanover Street DATED: Carlisle, PA 17013 (717) 249-0900 ?j C 3/0 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Camarvon Avenue Bristol, PA 19007, Defendants File No: 070201727 Civil Action - Law Jury Trial Demanded REQUEST FOR PRODUCTION OF DOCUMENTS TO: Thomas M. Walsh c/o , Robert Leight, Esquire Attorney for Defendant Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiffs, David and Kay Kinzler, by their attorneys, Abom & Kutulakis, L.L.P., request that you produce copies of the following documents, at its expense, within thirty (30) date of service of this Request. INSTRUCTIONS If you object to the production of any document on the grounds that the attorney-client, attorney work product or any other privilege is applicable thereto, you shall, with respect to that document: (a) State its date; (b) Identify its author; (c) . Identify each person from whom the document was received; (d) Identify each person who received it; (e) State the present location of the document and all copies thereof, (f) Identify each person who has ever had possession, custody or control of it or a copy thereof; and (g) Provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and to permit an adjudication of the propriety of that claim. As referred to herein, "document" includes written, printed, typed, recorded, or graphic matter, however produced or reproduced, including correspondence, emails, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any other writings (including copies of any of the foregoing) regardless of whether you, your former or present counsel, agents, employees, officers, insurers, or any other person acting on your behalf, are now in possession, custody, or control thereof. DOCUMENTS REQUESTED All statements, signed statements, transcripts of recorded statements or interviews of any person or witness relating to, referring to or describing any of the events described in the Complaint. 2. All expert opinions, reports, summaries or other writings in your custody or control or in the control of your attorney or insurers, which relate to the subject matter of this litigation. 3. All documents, correspondence or other drawings, sketches, diagrams, or writings in your care, custody or control or in the custody or control of your attorney or insurers, which relate to the subject matter of this litigation. 4. All documents prepared by you, or by any insurer, representative, agent, or anyone on your behalf, except your attorney(s), during the investigation of the incident in question or any of the events or allegations described in the Complaint. Such documents shall include any documents made or prepared up through the present time, with the exclusion of mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. 5. All photographs or videotapes of or relating to any item or thing involved in this litigation. 6. All documents related to and including the Record of Duty Status (RODS) (aka driver's log) for the week prior, week of and week after the accident. Your complete Commercial Driving License record dateing from ten (10) years prior to the accident to the current date. 8. 9. 10. 11. 12. DATED: All statements as defined by Pa.R.C.P. No. 4003.4. All statements and/or transcripts of interviews of fact witnesses obtained in this matter. All documents identified in your Answers to any set of Interrogatories propounded by any party in this litigation. A copy of the `declarations page' of any insurance policy applicable to this litigation. All documents which you intend to rely upon or introduce at trial. 3 /0 7 Abom & Kutulakis, LLP JL . John W. Carter, Esquire 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorneys for Plaintiff eL OM& ATTORNEYS AT LAW January 30, 2008 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30S. 17th Street, Suite 1800 Philadelphia, PA 19103 FFICE LOCATION CARLISLE OFFICE (717) 249-0900 HARRISBURG OFFICE (717) 232-9511 MBERSBURG OFFICE (717) 267-0900 YORK OFFICE 4-0t?-l (717) 846-0900 Re: David and Kay Kinzler v. Smith Transport, Inc. and Thomas Walsh Docket No. 07-5600 Our File No.: 06-348 Dear Ms. Essis, Attached are the Deposition Notices for employees of Smith Transport and Franklin Logistics for April 7 and 8, 2008. I understand that you are uncertain of your availability with these dates due to prior commitments in your schedule. I also understand that you have taken over as counsel to Smith Transport and Franklin Logistics within the past month. However, I hope you are able to understand that we have been trying to arrange these depositions since September 2007 with previous counsel. I hope you are able to identify another attorney within your practice to asssit in these depositions. We have been professional and have cooperated over the last year with the opposing counsel and our plan is to continue to do so. The original schedule agreed to by all parties was to have this matter ready for trial by March 2008. I realize that since you are new to this action that the March 2008 date for trial is now impossible. However, I will contact the Court Administrator to set up a time with the Judge assigned to the case for a Scheduling Conference in order to get back on track with this matter. Additionally, Mr. Kinzler was almost killed on February 25, 2005 due to the negligence of an employee of Smith/Franklin Logistics. It is now going on three years since the accident and Mr. Kinzler has not received one dime in compensation for the injuries and pain and suffering that is due to the negligence of the Smith/Franklin Logistics employee. As you can see from the Notice of Depositions, we have listed the place of the Depositions as our office in Carlisle, Pennsylvania. However, we are willing to entertain having the depositions at Smith Transport Headquarters in Roaring Spring, Pennsylvania, in an effort to accommodate Smith and its employees. Reply To: 36 SOUTH HANOVER STREET CARuSLE, PA 17013 (717) 249-0900 FAX (717) 249-3344 Page 2 January 30, 2008 June Essis, Esquire One final issue is discovery. We have received some discovery but not everything that we requested, and not objected to by Mr. Leight. We requested the maintenance and driver's logs of the truck/trailer involved in the accident for the six months prior to and six months after the accident. We only received the six months after the accident maintenance logs. This is the same issue for the driver's logs. Additionally, we requested the Employee Handbook and received only every other page of the handbook, not the complete handbook. Finally, you mentioned that you had received two boxes of materials from Mr. Leight concerning this case. We would like copies of all of that material except, of course, that which is privileged. Sincerely, & KUTULAKIS, LLP P. JWC/ Enclosures Cc: Client ------------- AN KR HARRIS, A Pennsylvania Professional Corporation PHILADELPHIA OFFICE Mellon Bank Center 1735 Market Street Suite 600 Philadelphia, PA 19103 (215)893.9300 Fax: (215) 893-8719 ATTORNEYS-AT-LAW NEW JERSEY OFFICE 41 South Haddon Avenue 2nd Floor PLEASE REPLY l"O PHILADELPHIA www.finemanlawfirm.com JUNE J. ESSIS Direct Dial: (215) 893-8712 E-Mail: iessis@finemanlawfirm.com February 05, 2008 Jason P. Kutulakis, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 Re: Kinzler v. Smith Transport, Inc., et al CCP Cumberland County - No. 07-5600 Our File No. 7989119768 Dear Mr. Kutulakis: M onfield, NJ 08033 (856) 795-1118 x:(856)795-1110 I received your correspondence of January 30, 2008 today and feel the need to specifically respond to it. While we have never had a case together, I did have a class with your father and thought very highly of him. I am assuming that you are as professional as he. I have just taken over the handling of this matter for Smith Transport, Inc. due to a conflict I am told that you felt existed between the driver and the company. While I do not know what transpired between you and former defense counsel as to the taking of the 12 listed depositions dial. you have unilaieraily Scheduled or the trial schtdule, I wn now defense counsel on this file. Initially, there must have been some confusion with your secretary as I am unavailable on Apn[ 7 & 8, 2008. I am sure you understand that I have a busy schedule and my calendar is booked month in advance. We discussed dates in May and I believe you were unavailable those dates. erhaps you and I can revisit our calendars. Secondly, as a professional, I would expect that you would allow me the opportunity to review the file, obtain all written discovery that is not contained in the file and review the reasonableness of your request to take 12 depositions of company representatives in this case. I am assuming that you would take into account that you are not asking for one deposition and that i must travel. To suggest that I could just send someone from my office to 12 depositions of a file that I am handling is inappropriate. 100089987;v11 Jason P. Kutulakis, Esquire January 11, 2008 Page 2 Further, as for your requested discovery, I will certainly review the file and your requests as well as defendants. If there are additional discoverable documents contained in the box of documents that I received that you were not provided, I will certainly forward those as a supplement. If there are other relevant and discoverable documents that you requested that exist that have not been given to former counsel and produced to you, I will do my best efforts to obtain them for you. I trust you will do the same for me. Accordingly, I would appreciate it if you would contact me so that you and I can come up with mutually convenient dates to schedule the depositions of the representatives that you have requested, reserving my right to object to the relevancy of any one of them. I appreciate your consideration and look forward to speaking with you. JJE/gjz M0M k)PUITULAKIS ATTORNEYS AT LAW May 29, 2008 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17"' Street, Suite 1800 Philadelphia, PA 19103 Re: David and Kay Kinzler v. Smith Transport, Inc. and Thomas Walsh Docket No. 07-5600 Our File No.: 06-348 Dear Ms. Essis: OFFICE LOCAT1oNS CARLIStr_ OFFICE (717) 249-0900 HARRISBURG OFFICE (717) 232-9511 CHAMBERSBURG OFFICE (717) 267-0900 YORK OFFICE (71.7) 846-0900 . On May 21, 2008, I called and left a telephone message with you requesting a return phone call and discovery material including post accident reports, pre-accident reports, and post-accident photos. In that message I indicated the need to have this outstanding discovery material in advance of the depositions in this case. To date, I have not received a return telephone call. I also note that on January 30, 2008, Jason P. Kutuhdds of this firm wrote to you providing deposition notices for employees of Smith Transport and Franklin Logistics. At that time, Mr. Kutulakis also reminded you that there were outstanding discovery requests. Mr. Kutulakis noted that additional. maintenance and driver's logs for the truck/ trailer and driver involved in the accident for the 6 months prior to the accident were missing. Additionally, he reminded you that he was awaiting the complete employee handbooks and two boxes of material from Attorney Leitght concerning the case. To my knowledge, you have never acknowledged or responded to this request to Mr. Kutulakis' reminder regarding this outstanding discovery. Aside from the items mentioned specifically in Mr. Kutulakis' correspondence and my telephone call, a review of the Defendants' response to Plaintiffs First Request for Production of Documents indicates that there were a number of discovery items where Defendants indicated that the investigation of discovery were still continuing. To my knowledge, no additional material has been produced as a result of these continuing investigations and discovery by Defendants. Also, in reviewing Defendants' responses to Plaintiffs Request for Production of Documents, I noticed the complete absence of any electronic mail relating to this matter despite the request for production of such electronically stored information. The absence of any electronic communication appears unusual. I am asking that you review Defendants electronically stored information for any such emails related to Plaintiffs discovery request.. If previous statements that no such Reply To: 36 SOUTH HANOVFR STRF_ET CARLISLE, PA 17013 (717) 249-0900 PAx(717) 249-3344 Page 2 May 29, 2008 June Essis, Esquire electronic correspondence exists, please provide an explanation as to what steps were taken to preserve Defendants electronically stored information from the time period of the accident. With depositions currently scheduled for June 18, 19, and 20, 2008, it is essential that we receive your outstanding discovery material, particularly maintenance and drivers' logs, handbook, and color photographs. If this information is not provided to this office by the end of next week, I plan to file a Motion to Compel such production. Please contact me to discuss your plans for complying with the outstanding discovery requests so such a Motion can be avoided.. Very truly yours, Abom & Kututakis, LLP --- Wayne Melnick WM/e}f Enclosure cc: Jason P. Kutulakis, Esquire David and Kay Kinzler V4 N A Pennsylvania Professional Corporation PHILADELPHIA OFFICE ATTORNEYS-AT-LAW Mellon Bank Center 1735 Market Street www.finemanlawfirm.com Suite 600 JUNE J. ESSIS Philadelphia, PA 19103 Direct Dial: (215) 893-8712 (215) 893-9300 E-Mail: jessistn?finemanlawfirm.com Fax: (215) 893-8719 PLEASE REPLY TO PHILADELPHIA June 5, 2008 VIA FACSIlvIILE AND FIRST CLASS rL4 L Wayne Melnick, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 Re: Kinzler v. Smith Transport, Inc., et al CCP Cumberland County - No. 07-5600 Our File No. 7989119768 Dear Wayne: NEW JERSEY OFFICE 41 South Haddon Avenue 2nd Floor Haddonfield, NJ 08033 (856) 795-1118 Fax: (856) 795-1110 I am writing to memorialize our conversation and specifically address plaintiff s request for additional discovery documents. As I stated, I have been working at home for the past two months recuperating from a serious back injury. Based upon my current medical condition, I am hopeful that I will return to work sometime in July, 2008. 1 requested that we postpone the depositions currently scheduled for June 19 and 20, 2008 in Altoona as I am unable to attend those depositions. I would like to obtain dates from you for the last week of July so that I can relay those dates to my client and reschedule the depositions. If I am unable to attend the rescheduled depositions, I will request that a partner in my office handle them so as not to delay them any further. As for the requested depositions, Mr. Chip Castello and Ms. Lynette Dellinger currently work for Smith Transport and are located in Altoona. Ms. Jane Weyandt no longer works for Smith Transport and I have yet to obtain any information on her current whereabouts. When I do obtain any information on her whereabouts, I will certainly pass that information on to you. Finally, the accident investigator, Martin Essig, works for Gallagher Bassett and is located in Mechanicsburg, PA. His request is that we schedule his deposition in Mechanicsburg or the immediate vicinity obviously not on the same day. As for the additional documentation, since our conversation, I have been able to obtain and review Defendant Smith Transport's answers to plaintiff's discovery. The following documents were previously produced by Smith Transport: 1. Driver's Statement (Bates 1-5) 2. Accident Cost Summary with Attached Repair Receipts (Bates 6 - 10) 3. Accident/Incident Detail Listing (Bates 11 -13) 77 4. Driver Qualification File (Bates 14 - 40) , 5. Driver's Daily Log from 2/18/05 -2/26/05 (Bates 41- 49) E Ai :i (00111344;v 1 ) Wayne Melnick, Esquire June 5, 2008 Page 2 6. Driver Notification Letters for Hours of Service Violations (Bates 50 - 52) 7. Dispatch Records from 2/22/05 - 2/27/05 (Bates 53 - 74) 8. Marsh Certificate of Insurance (Bates 75) 9. Personnel File (Bates 76 -122) 10. Driver's Handbook (both sides copied) (Bates 123 - 179) 11. Repair Order Detail Reports from 2/26/06 - 8/17/07) (Bates 180 - 284) 12. TripPak Express Envelope (Bates 285) 13. Photographs - Two Color 32 Black and White (Bates 286 - 303) Based upon our conversation, it is my understanding that you have requested the following: 1. Post-accident reports; 2. Pre-accident reports; 3. Post-accident photos; 4. Additional maintenance logs for 6 months prior; 5. Additional driver's logs for 6 months prior; 6. Complete Employee Handbook; 7. Any electronic communication. Based on a comparison of the documents provided and the documents requested and the Pennsylvania Rules of Civil Procedure, I am requesting the following additional documentation be obtained if it exists and produced: 1. Repair Order Detail Reports for 30 days prior to the accident; 2. Driver's logs from 1/26/05 to 2/18/05; 3. Complete copy of Handbook (although copy of documents sent that we have was already two sided); 4. Any electronic communication that can be located by our client; 5. Color photos. If you are requesting any additional information that I have not listed above, please contact me. I look forward to hearing from you to come up with mutually convenient dates to schedule the depositions of the representatives that you have requested as addressed above and to confirm your request for documents. JJE/gjz Very truly yours, JUNE J. SS 100111344;vI) F From: June Essis [mailto:JEssis@flnemanlawfirm.com] Sent: Monday, June 09, 2008 3:35 PM To: jpk@abomkutulakis.com Cc: jas@jdsw.com Subject: Kinzler v. Old Dominion et al Mr. Kutulakis, Apparently your letter to me and mine to Mr. Melnick crossed paths in the mail. I am writing to respond to your letter to me of June 4, 2008 which didn't arrive at my office until Saturday and was opened today. First, 1 want to make it perfectly clear that none of my cases, including this one, "sat static in my office" while I have worked at home these past two months. Secondly, I didn't know until my neurosurgical visit the end of May whether I would be able to travel to Altoona to attend and defend the depositions of the smith representatives. I certainly didn't want to prematurely postpone the depositions if I was able to travel to Altoona. Unfortunately, I cannot travel and must postpone them. As discussed in my correspondence to Mr. Melnick, please let me know your schedules so that I can have my secretary coordinate the rescheduling of the depositions of Mr. Castello and Mrs. Dellinger in Altoona and Mr. Essig in Mechanicsburg. Again, Ms. Weyandt no longer works for Smith Transport. By copy of this correspondence to Mr. Statler, I ask that he provide his dates of availability the end of July and August. Further, due to a filing error, I was momentarily unable to locate Smith Transport's responses to plaintiff's discovery. As I mentioned in the letter to Mr. Melnick after our call, I have reviewed them and the listed 303 produced documents. Again, in an effort to cooperate, I listed the additional documentation that I have requested of Smith Transport to satisfy plaintiff's further requests. If there is another document not listed in my correspondence to Mr. Melnick, please let me know. I will certainly make every effort to obtain all documents I listed pursuant to the Pennsylvania Rule of Civil Procedure if they exist. I also look forward to cooperative environment within which to proceed with this case and resolution. VTY, June Essis June J. Essis, Esquire Fineman Krekstein & Harris, P.C. Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103 Phone:215-893-8712 Fax: 215-893-8719 Email: iessis?finemanlawfirm.com www.finemanlawfirm.com The information contained in this email message is privileged and confidential and is intended only for the use of the individual or entity named above and others who have been specifically authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, or if any problems occur with transmission, please notify us immediately by telephone. Thank you. <<June Essis.vcf>> BOM & UTA.ULAKis Ar,oaNEys AT uw June 16, 2008 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17th Street, Suite 1800 Philadelphia, PA 19103 -, ? - G, - ? Re: David and Kay Kinzler v. Smith Transport, Inc. and Thomas Walsh Docket No: 07-5600 Our File No: 06-348 Dear Attorney Essis: IE ARL ISLE OFFICE 17) 249-0900 ISBURG OFFICE 17) 232-9511 RSBURG OFFICE (717) 267-0900 YORK OFFICE (717) 846-0900 I have reviewed your correspondence of June 5, 2008. In that letter you indicate that you are requesting your client provide the following additional documentation, if it exists: 1. Repair Order detail reports for thirty (30) days prior to the accident (please note that we are missing repair and maintenance reports for six months prior to the accident); 2. Driver's logs from January 26, 2005 to February 18, 2005; 3. Complete copy of handbook (please note that we are missing drivers logs for the six months prior to the accident); 4. Any electronic communication that can be located by your client; 5. Color photos. In addition to the above items which are still missing, I would note that Attorney Robert R. Leight's responses to Plaintiffs Request for Production of Documents from October 3, 2007, there are additional items that remain outstanding in the category of continuing investigation and discovery. Since Mr. Leight's October 3, 2007 response, no additional material has been produced as a result of your client's investigation in discovery. I am taking this opportunity to remind you of those items where Mr. Leight indicated discovery was continuing. Those items include responses to our request for production of documents numbers 1 through 5, 7, 8, 10 through 12,15 through 17, 20, 23, 28, 29, 31, 34. Kindly advise me whether Smith Transport's investigation and discovery has continued and identified whether there are any additional documents which you intend to produce pursuant to Plaintiff's Request for Production of Documents. Very truly yours, Abom & Kutulakis, LLP AeWay Melnick WMjejf Enclosure cc: Jason P. Kutulakis, Esquire David and Kay Kinzler Reply To: 36 SOUTH HANOVER STREET CARLISLE, PA 17013 (717) 249-0900 FAX (717) 249-3344 Wayne Melnick From: Wayne Melnick [WM@AbomKutulakis.com] Sent: Tuesday, June 24, 2008 10:26 AM To: 'June Essis' Cc: 'Jason Kutulakis' Subject: RE: Kinzler v. Smith Transport Attachments: image002.jpg; image001.png Ms. Essis: Unless I am mistaken you did not call yesterday. I am available most of this afternoon if you can manage to call today. I still hope to discuss the upcoming depositions. Also, over a month has passed since I first contacted you about outstanding production of documents including logs and photos. My need for the color photos has become more pressing in the intervening month. Can you give me any idea when you or your staff will be able to forward these photos? M I& e ULL IS Our Firm Practice Areas • Attorneys * Case Low * Locations Wayne Meinick, Esquire Phone: (717) 249-0900 Fax: (717) 249-3344 Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 CONFIDENTIALITY NOTICE - This e-mail message is for the use of the intended recipient(s). The information contained in this communication may be confidential and may be subject to the attorney-client privilege. If you are not the intended recipient, please contact the sender immediately by reply e-mail or by telephone and permanently delete this e-mail message and any accompanying attachment(s). Thank you. From: June Essis [mailto:JEssis@finemanlawfirm.com] Sent: Friday, June 20, 2008 1:00 PM To: Wayne Melnick Subject: RE: Kinzler v. Smith Transport Wayne, I am sorry but I didn't get a message that you called. Is scheduling the depositions of the two smith reps for the 14th of August in Altoona and Mr. Essig on the 15th in Mech. not convenient? Also, I would like to have the depositions of the three above taken and then schedule plaintiffs before I commit to a case management conference deadline. I will call you on Monday to discuss the above. VTY,June Melnick From: June Essis [JEssis@finemanlawfirm.coml Sent: Tuesday, June 24, 2008 11:25 AM To: Wayne Melnick Subject: RE: Kinzier v. Smith Transport Attachments: image001.png; image002.jpg Based upon your email you were only available from 10:30 to 11:30 yesterday and I was not. I have been working to get you the documents I listed in my correspondence to you and I have even reviewed plaintiff's discovery requests and Smith's answers to determine if there is anything additional that I can request of my clients to try and locate. I have also been in contact with my client's representative. I am also trying to obtain the negatives of the photos to get you copies as well. As for depositions, at this juncture, you have the depositions of Mr. Castello , the director of accident control and driver safety training and Ms. Dellinger, director of human resources, scheduled for the 14th of August in Altoona and Mr.. Essig, the accident investigator, for the 15th in Mechanicsburg. Again, I have requested any information on the whereabouts of Ms. Wyandt. Whose other depositions would you like to take? Give me your requests. As discussed with Mr. Carter, I then can review the reasonableness of your requests and if there is a Smith employee who is available on the 14th, we will make him or her available. I can contact you tomorrow to discuss the above. Please let me know your availability as I am unavailable the rest of today. VTY, June From: Wayne Melnick [mailto:WM@AbomKutulakis.com] Sent: Tuesday, June 24, 2008 10:26 AM To: June Essis Cc: 'Jason Kutulakis' Subject: RE: Kinzler v. Smith Transport Ms. Essis: Unless I am mistaken you did not call yesterday. I am available most of this afternoon if you can manage to call today still hope to discuss the upcoming depositions. Also, over a month has passed since I first contacted you about outstanding production of documents including logs and photos. My need for the color photos has become more pressing in the intervening month. Can you give me any idea when you or your staff will be able to forward these photos? A M TULAK Our Firm . Practice Arees • Attorneys • Case Law • Locations Wayne Melnick, Esquire Phone: (717) 249-0900 Fax: (717) 249-3344 Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 CONFIDENTIALITY NOTICE - This e-mail message is for the use of the intended recipient(s). The information contained in this communication may be confidential and may be subject to the attorney-client privilege. If you are not the intended recipient, please contact the sender immediately by reply e-mail or by telephone and permanently delete this e-mail message and any accompanying attachment(s). Thank you. CERTIFICATE OF SERVICE AND NOW, this X04 'day of August, 2008, I, Wayne Melnick, of Abom & Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct copy of the foregoing MOTION TO COMPEL PRODUCTION OF DOCUMENTS via first class mail to the following: John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17th Street, Suite 1800 Philadelphia, PA 19103 Wayne Me squire ra T • AUG 0 7 2008( IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 1.6673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded ORDER t? n AND NOW, this day of N%)4 k , 2008, upon consideration of the 11 Plaintiffs' Motion to Compel Production of Documents, it is hereby ordered and decreed that said Motion is hereby GRANTED and Defendant Smith Transport, Inc. is ordered to produce all documents as requested in the Motion to Compel Production of Documents within ten (10) days j %a t'N'ty (10) V%-LE, from the date hereof. Upon failure to produce such documents withinod >9'f days hereof, the Court may impose sanctions against Defendants. BY THE COURT, J. 0 o VN` AIASNN3d AiNnoo i i: i i wa i i qnv oooz ?&iDNO RL :dd 3HI 30 3013-40-031H I -- 4b OM ?' UTMzS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 DAVID AND KAY KINZLER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants NO. 07-5600 CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 David and Kay Kinzler, by and through their attorneys, Abom & Kutulakis, L.L.P., 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 0C -4 Le., 70 '?00'8' ABOM & KUTULAKIS, L.L.P Wayne Melnic Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 DAVID AND KAY KINZLER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants NO. 07-5600 CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: The Pennsylvania Department of Transportation Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: (1) All motor vehicle records of Thomas M. Walsh dating from ten (10) years prior to March 1, 2005 (3/1/95 through 3/1/05), including, but not limited to, all commercial driver's license information as well as all regular driver's license information; at the law offices of Abom & Kutulakis, L.L.P., 36 South Hanover Street, Carlisle, PA 17013. 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: Wayne Melnick, Esquire ADDRESS: 36 S. Hanover Street, Carlisle, PA, 17013 TELEPHONE: 717-249-0900 ATTORNEY ID # 53150 ATTORNEY FOR: David and Kay Kinzler BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of Court Deputy C) - ; C (711 c-s - t co OM & LITLILAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Car&k, Pennsylvania 17013 (717) 249-0900 DAVID AND KAY KINZLER, Plaintiffs . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants NO. 07-5600 . CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 David and Kay Kinzler, by and through their attorney, Abom & Kutulakis, L.L.P., 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. ABOM & KUTULAKIS, L.L.P DATE OcA l, a-0 o &- Wayne Melnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 DAVID AND KAY KINZLER, Plaintiffs V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Sprint Cellular Service Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: (1) The cellular telephone records of Thomas M. Walsh (267-987-2995) dating from September 2004 through March 2005, including, but not limited to, a list of all incoming and outgoing calls made during the specified time frame; at the law offices of Abom & Kutulakis, L.L.P., 36 South Hanover Street, Carlisle, PA 17013. 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: Wayne Melnick, Esquire ADDRESS: 36 S. Hanover Street, Carlisle, PA, 17013 TELEPHONE: 717-249-0900 ATTORNEY ID # 53150 ATTORNEY FOR: David and Kay Kinzler BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of Court IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 07-5600 Deputy ap? -t r QOM & IU ULAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 DAVID AND KAY KINZLER, Plaintiffs V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 07-5600 . CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 David and Kay Kinzler, by and through their attorneys, Abom & Kutulakis, L.L.P., 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. ABOM & KUTULAKIS, L.L.P DATE O CJ06' U ?Ob ayne Me ck, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 r ._y DAVID AND KAY KINZLER, Plaintiffs V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 07-5600 CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dave's Truck Repair, Inc. Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: (1) Any documents showing the name, address, business and home telephone numbers of all employees who provided service at an accident site at Route 11 and Moordale Road, West Pennsboro Township, Cumberland County, PA, on the early morning of February 26, 2005 (Your invoice/reference number: SI029324); at the law offices of Abom & Kutulakis, L.L.P., 36 South Hanover Street, Carlisle, PA 17013. 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: ADDRESS TELEPHONE: ATTORNEY ID # ATTORNEY FOR: Wayne Melnick, Esquire 36 S. Hanover Street, Carlisle, PA, 17013 717-249-0900 53150 David and Kay Kinzler BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of Court Deputy ea Qn C'7 TAB 2OM & &N i LILAKIS Wayne Melnick, Enquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 DAVID AND KAY KINZLER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants NO. 07-5600 CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 David and Kay Kinzler, by and through their attorney, Abom & Kutulakis, L.L.P., 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. ABOM & K=LAKZs, L.L.P DATE C &?- b )Lwr W yne elnic , Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 - . DAVID AND KAY KINZLER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants NO. 07-5600 CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Department, Penn State Hershey Medical Center Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: (1) Any documents showing the name, address, business and home telephone numbers of all emergency medical personnel who accompanied patient David R. Kinzler (MRN: 893905, OOS#: 5486763) during his ride in the passenger section of Life Lion air medical transport helicopter on the evening of February 25, 2005. (2) Any documents showing the name, address, business and home telephone numbers of all medical personnel who attended patient David R. Kinzler (MRN: 893905, OOS#: 5486763) upon his arrival at the Emergency Department on the evening of February 25, 2005. at the law offices of Abom & Kutulakis, L.L.P., 36 South Hanover Street, Carlisle, PA 17013. 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: Wayne Melnick, Esquire ADDRESS: 36 S. Hanover Street, Carlisle, PA 17013 TELEPHONE: 717-249-0900 ATTORNEY ID # 53150 ATTORNEY FOR: David and Kay Kinzler BY THE COURT: Prothonotary/Clerk, Civil Division Seal of Court Deputy 5 te F a . 03 0- V t DAVID AND KAY KINZLER, PLAINTIFFS V. SMITH TRANSPORT, INC., and THOMAS M. WALSH, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 CIVIL IN RE: CASE MANAGEMENT ORDER OF COURT AND NOW, this 5t' day of November, 2008, upon consideration of the Case Management Conference held with counsel, IT IS HEREBY ORDERED AND DIRECTED that: 1. All non-expert discovery in the above matter shall be completed no later than January 5, 2009; 2. Plaintiff shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial to all other parties no later than January 5, 2009. 3. Independent Medical Examinations shall be conducted no later than February 28, 2009. 4. Vocational evaluations shall be completed by March 31, 2009, and reports shall be forwarded to all parties by April 15, 2009. 5. All pre-trial motions shall be filed by May 14, 2009, to be scheduled for the June 3, 2009, Argument Court. 6. A settlement conference shall be held on Friday, April 24, 2009, at 10:00 a.m. in chambers of Courtroom No. 5. Prior to the settlement conference all counsel shall file a settlement memorandum, serve all opposing counsel. The memorandum shall contain the following: 9 1 .Z Wd S- AOW BIOZ -"Hi 20 t "% a. A concise summary of the nature of the case. b. A statement by the Plaintiff of all damages accumulated, including an itemization of injuries and all special damages claimed by categories and amount; c. Defendant shall identify all applicable insurance carriers, together with applicable limits of liability. 7. A pre-trial conference will be held on Friday, August 21, 2009, at 10:00 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Fifteen days prior to the pre-trial conference, counsel shall file pre-trial memorandum containing the following: a. A concise summary of the nature of the case. b. A list of all witnesses who may be called to testify at trial by name and address. Counsel should expect witnesses not listed to be precluded from testifying at trial. c. A list of all exhibits the party intends to offer into evidence. All exhibits shall be pre-numbered and shall be exchanged among counsel prior to the conference. Counsel should expect any exhibit not listed to be precluded at trial. d. Plaintiff shall list an itemization of injuries or damages sustained together with all special damages claimed by category and amount. This list shall include as appropriate, computations of all past lost earnings and future lost earning capacity or medical expenses together with any other unliquidated damages claimed; and e. Defendant shall state its position regarding damages and shall identify all applicable insurance carriers, together with applicable limits of liability; f. Each counsel shall provide an estimate of the anticipated length of trial. 8. All counsel are under a continuing obligation and are hereby ordered to serve a copy of this order upon all unrepresented parties and upon all counsel entering an appearance subsequent to the entry of this Order. 9. This case shall be listed for trial to begin on Monday, September 21, 2009, at 9:00 a.m. Counsel should consider themselves attached. By the Court, I* ?j -A k M. L. Ebert, Jr., J. Wayne Melnick, Esquire Jason Kutulakis, Esquire Attorneys for Plaintiff June Essis, Esquire;, John A. Statler, Esquire ?^- Court Administrator - b's "IS)dTr bas ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants 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 Smith Transport, Inc. and Franklin Logistics certify that: 1. A Notice of Intent to Service the subpoena to Big Spring School District with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: VP v v FINEMAN KREKSTEIN & HARRIS, P.C. BY: / -UrJun-e J. ssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182498;v1 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH Defendants DOCKET NO. 07-5600 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Big Spring School District). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. Dated: FINEMAN KREKSTEIN & HARRIS, P.C. BY.. ? (,Ee ?-?T? e. June J. ssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182498;v1} COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KINZLER VS. SMITH TRANSPORT, INC., et al File No. 07-5600 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: BIG SPRING SCHOOL DISTRICT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Phila., PA., 19103 (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: June J. Essis, Esquire ADDRESS: ar et Street Suite 600 Philadelphia,_PA_ 19103 TELEPHONE: 215 _ SUPREME COURT ID # ATTORNEY FOR: n o a Smith Transport and BY THE COURT: Franklin Logistics Prothonotary, Civil Division Date: / p $ -Seal of a Court Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs vs. CIVIL DIVISION SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-54600 Defendants STIPULATION It is hereby STIPULATED and AGREED, by and between the undersigned counsel that the parties waive the requirements of Rule 4009.21 and, therefore, the subpoena attached (Big Spring School District) to the Notice of Intent will be served upon the individual and/or entity as set forth in said subpoena. BY: Ju Or?evsf Esquire A or Def endants Smith Transport, Inc. and Franklin Logistics BY: 44 2? ? = Wayne Melnick, Esquire Attorney for Plaintiffs {00182498;v1} IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs : vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants : 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 Smith Transport, Inc. and Franklin Logistics certify that: 1. A Notice of Intent to Service the subpoena to Erie Insurance Group with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: FINEMAN KREKSTEIN & HARRIS, P.C. BY:-Z?L LZ,, June J. EVis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182502;v1} IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH Defendants DOCKET NO. 07-5600 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Erie Insurance Group). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. Dated: 1-0G 't0 FINEMAN KREKSTEIN & HARRIS, P.C. BrAunU'l-41'a' June VEssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics (00182502;vi ) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KINZLER VS. File No. 07-5600 SMITH TRANSPORT, INC., et al SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: ERIE INSURANCE GROUP (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Phila., PA., 19103 (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: June J. Essis, Esquire ADDRESS: 1735 Market Street Suite 600 Philadelphia, PA 19103 TELEPHONE: 215-893-9300 SUPREME COURT ID# 94183 ATTORNEY FOR: h e f t s Smith Transport and BY THE COURT: Franklin Logistics Date: /01J/7/09 'Sealfof tfie Court Prothonotary, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-54600 Defendants ; STIPULATION It is hereby STIPULATED and AGREED, by and between the undersigned counsel that the parties waive the requirements of Rule 4009.21 and, therefore, the subpoena attached (Erie Insurance Group) to the Notice of Intent will be served upon the individual and/or entity as set forth in said subpoena. BY: June si quire Atto ey fo Defendants Smith Transport, Inc. and Franklin Logistics BY:-zyl/ Wayne Melnick, Esquire Attorney for Plaintiffs (ooiszsoz;vl ) ==c i ..?r ?` ?j`?C '? ; ..,} ' R.a-? • ,3 .,;; ?<: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants 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 Smith Transport, Inc. and Franklin Logistics certify that: 1. A Notice of Intent to Service the subpoena to Hartford Life Benefit Management Services with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: FINEMAN KREKSTEIN / HARRIS, P.C. BY: ./? June J. is, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics { 00182516;v I } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH : Defendants CIVIL DIVISION DOCKET NO. 07-5600 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Hartford Life Benefit Management Services). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. FINEMAN KREKSTEIN & HARRIS, P.C. Dated: BY: Ala June ssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182516;v1} COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KINZLER VS. File No. 07-5600 SMITH TRANSPORT, INC., et al , SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: HARTFORD LIFF BEXPETT MANAGEMENT SERVIGES (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Phila., PA., 19103 (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: June J. Essis, Esquire ADDRESS: ar et Street Suite 600 Philadelphia PA 19103 TELEPHONE: 215m SUPREME COURT ID # ATTORNEY FOR: n o Smith Transport and BY THE COURT: Franklin Logistics Prothonotary, Civil Division Date: A h 08 'Seal of tfie Court Deputy A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-54600 Defendants STIPULATION It is hereby STIPULATED and AGREED, by and between the undersigned counsel that the parties waive the requirements of Rule 4009.21 and, therefore, the subpoena attached (Hartford Life Benefit Management Services) to the Notice of Intent will be served upon the individual and/or entity as set forth in said subpoena. BY: June y I Essis, E uire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics BY: r. Wayne elnick, Esquire Attorney for Plaintiffs {00182516;v1} IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants : 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 Smith Transport, Inc. and Franklin Logistics certify that: A Notice of Intent to Service the subpoena to Dr. Chad Juniper with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: FINEMAN KREKSTEIN & HARRIS, P.C. BYr/ lc.,?- L ?? June ssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {0018253 I ;v I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants : NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Dr. Chad Juniper). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. Dated: FINEMAN KREKSTEIN & HARRIS, P.C. BY: / June JLtssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182531;v1 } 4 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KIN2LER vs. File No. 07-5600 SMITH TRANSPORT, INC., et al SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: DR. CHAD JUNIPER (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Phila., PA., 19103 (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: June J. Essis, Esquire ADDRESS: 1735 Market Street Suite 600 Philadelvhia, PA 19103 TELEPHONE: 215-893- SUPREME COURT ID # 5 J R ATTORNEY FOR: n o f , Smith Transport and Franklin Logistics BY THE COURT: Prothonotary, Civil Division Date: 'Sea of a Court Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-54600 Defendants STIPULATION It is hereby STIPULATED and AGREED, by and between the undersigned counsel that the parties waive the requirements of Rule 4009.21 and, therefore, the subpoena attached (Dr. Chad Juniper) to the Notice of Intent will be served upon the individual and/or entity as set forth in said subpoena. BY: Jun J. Es s, Esquire A orney for Defendants Smith Transport, Inc. and Franklin Logistics BY: Wayne Melnick, Esquire Attorney for Plaintiffs (00182531;vI) i. ? _. . ;? ,- - -? ?T. •.?: I . 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants 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 Smith Transport, Inc. and Franklin Logistics certify that: 1. A Notice of Intent to Service the subpoena to Exel with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; Certificate. 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: ) ?i.oG?C Q FINEMAN KREKSTEIN & HARRIS, P.C. BY: 40U4-dJ-LA' ne J. E 's, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182467;v1} IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs vs. : SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH Defendants CIVIL DIVISION DOCKET NO. 07-5600 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Exel). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. Dated: ''FINEMAN KREKSTEIN & HARRIS, P.C. BY:M'-4/T ("Y- Cl jj ['- June J. (Jsis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00182467;vl } COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KINZLER VS. File No. 07-5600 SMITH TRANSPORT, INC., et al SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: EXEL (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Phila., PA., 19103 (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 malting 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: June J. Essis, Esquire ADDRESS: a r e t S -t r e e t Suite 600 Philadelphia PA_ 19103 TELEPHONE: 215 _ SUPREME COURT ID # ATTORNEY FOR: n o a Smith Transport and BY THE COURT: Franklin Logistics Date: D;e -Sea of fhe Court Prothonotary, Civil Division Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-54600 Defendants STIPULATION It is hereby STIPULATED and AGREED, by and between the undersigned counsel that the parties waive the requirements of Rule 4009.21 and, therefore, the subpoena attached (Exel) to the Notice of Intent will be served upon the individual and/or entity as set forth in said subpoena. BY: 6?? / BY: Wayne Melnick, Esquire Attorney for Plaintiffs {00182467;v1} Smith Transport, Inc. and Franklin Logistics .? } }g ?,.? b?, C°'? ? ? ?"`?.:". 1 K.) 'i `, } ?: .40% IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants - 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 Smith Transport, Inc. and Franklin Logistics certify that: l . A Notice of Intent to Service the subpoena to Vivian C. Faircloth, M.D. with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: 'pt FINEMAN KREKSTEIN & HARRIS, P.C. BY,: June ssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics (00193560;vI) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Vivian C. Faircloth, M.D.). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. FINEMAN KREKSTEIN & HARRIS, P.C. Dated: / '1 'd7 BY U June J. is, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00193560;v1} COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KINZLER VS. File No. 07-5600 SMITH TRANSPORT, INC., ET AL SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Vivian C. Faircloth, M.D. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Philadelphia, PA 19103 (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 parry 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: June J. Essis, Esquire ADDRESS: 1735 Market t. - Suite 600 Philadelphia, PA 19103 TELEPHONE: 215-893-9300 SUPREME COURT ID # 9 814 7 ATTORNEYFORDefts. Smith Transport and Franklin ogist ci Dater eal of the Court BY COURT: thon i 711ision Deputy C rj?r.. ?t ` 1 _ ; "' '?? a t` jC,? -? _ ? ?, ? r „d T"?OM CSC" &U 1 ULAKIS Jason P. Kutulakis, Esquire Attorney LD. No.: 80411 Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, CUMBERLANDCOUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Camarvon Avenue Bristol, PA 19007, Defendants File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded TO: THE HONORABLE M.L. EBERT MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND NOW, this J 6_ day of February, 2009, comes the Plaintiffs, David and Kay Kinzler, by and through their counsel, Jason P. Kutulakis and Wayne S. Melnick, and move this Honorable Court to compel the Defendant, Smith Transport, Inc., (hereinafter referred to as "Defendant Smith") to produce the requested documents and as reason thereof states: 1. The above matter is currently scheduled for Trial on September 21, 2009 before Judge Ebert. 2. On July 19, 2007, Plaintiffs forwarded the attached Request for Production of Documents (Exhibit "A") to Defendants. 3. On or about October 3, 2007, Defendant Smith filed responses to Plaintiffs' Request for Production of Documents. 4. On November 5, 2008, during the course of a Case Management Conference, counsel for Plaintiffs advised counsel for Defendant Smith Transport that they believe that internal policies, procedures, pamphlets, handouts, videos, DVDs or similar materials related to safety that Smith Transport had used to train drivers were in existence but not yet provided to Plaintiffs by Smith Transport. 5. On January 5, 2009, undersigned counsel reminded counsel for Smith Transport via email correspondence that the Plaintiff's original Request for Production of Documents included a request for the discovery material listed in the preceding paragraph. 6. On February 19, 2009, counsel for Smith Transport, June Essis, advised undersigned counsel that it was her belief that no additional documents responsive to the above request were in existence. 7. Contrary to Attorney Essis' assertions, the deposition transcript of Defendant, Director of Safety and Compliance, Mr. Charles W. Costello, Il, identified the following training materials: a. 45 minute video presentation on pre-trip inspection (deposition transcript page 28); b. Federal motor carrier safety administration handbook (deposition transcript page 29); c. Orientation materials (deposition transcript page 86-87); d. Videotapes and Power Point presentations (deposition transcript page 90); e. Throughout the course of the deposition testimony, Mr. Costello identified various facets of driver safety training that may have included written or electronic materials requested in Plaintiff's Request for Production of Documents. 8. On January 5, 2009, Plaintiffs provided Defendant Smith Transport with a second set of Interrogatories requested Defendant Smith Transport's gross revenues for the years 2005 through 2008 and net profits for the years 2005 through 2008. 9. Defendant Smith Transport filed no timely objection to the scope of this second of Interrogatories and no written response of any kind. 10. On February 19, 2009, Attorney Essis orally indicated in a telephone conversation to undersigned counsel that Smith Transport objected to Plaintiff's second set of Interrogatories saying that the information requested was outside the scope of discovery. 11. Counsel for Smith Transport has not followed up with any written objection to the material requested in the second set of Interrogatories. 12. The wealth of the Defendant is admissible evidence where punitive damages are at issue. Sprague v. Walter 441 Pa.Superl, 646 A.2d 890, 925(1995). 13. The material requested by Plaintiffs is relevant to the subject matter and litigation. 14. The material requested in this Motion to Compel are relevant to the subject matter involved and will substantially aide the Court in orderly disposition of this litigation. 15. The documents and material requested in this Motion to Compel is relevant to the subject matter involved and the action will substantially aide in the Trial of this case. 16. Defendant Smith Transport has asserted no privilege with respect to the requested documents. 17. Plaintiffs believe that Defendant Smith Transport is opposed to this Motion. WHEREFORE, Plaintiff's pray This Honorable Court to grant its Motion to Compel production of documents and to order Defendant, Smith Transport, Inc. to supply full and complete responses to the Request for Production of Documents and second set of Interrogatories propounded by Plaintiffs within ten (10) days of your decision by producing all the following items: any and all internal policies and procedures, pamphlets, handouts, videos, DVDs or similar materials related to safety that Defendant Smith Transport had in effect or used to train drivers on the date of the collision, whether actually provided to any of its drivers, dispatchers, safety directors, operation managers, and/or auditors; and gross revenues for the years 2005 through 2008 and net profits for the years 2005 through 2008. Date: Respectfully submitted, ABOM & KUTULA"S, L.L.P. By: Wayne Melnick, Esquire Attorney I.D. No. 53150 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 CERTIFICATE OF SERVICE -1 0, AND NOW, this day of February, 2009, I, Wayne Melnick of Abo hereby certify that I did serve or cause to be served a true and correct copy of the f regoinsgL.L.P MOTION TO COMPEL via first class mail to the following: John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17'h Street, Suite 1800 Philadelphia, PA 19103 Wayne Melnick, Es wire C"3 n? '?7 'ri ? A Jy Aom ?' TUifucis Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carh'sle, Pennsylvania 17013 (717) 249-0900 DAVID AND KAY KINZLER, Plaintiffs V. SMITH TRANSPORT INC. AND THOMAS M. WALSH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 07-5600 CIVIL ACTION - LAW CERTIFICATE PRE-REQUISITE FOR SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a pre-requisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A Notice of Intent to serve the subpoena with a copy of the subpoena attached (2) thereto was mailed or delivered to each party at least twenty (20) days prior to the date in which the subpoena sought to be served; (3) A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate; (4) No objection to this subpoena has been received; and (5) The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the subpoena. DATE aml ABOM & KUTULAKIS, L.L.P Wayne Melnick, Esquire, I.D. 53150 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 1 - '? CERTIFICATE OF SERVICE AND NOW, thisQz - ay of February, 2009, I, Wayne Melnick, of Abom & Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct copy of the foregoing CERTIFICATE PRE-REQUISITE TO SERVE SUBPOENA via first class mail to the following: John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire 1735 Market Street, Suite 600 Philadelphia, PA 19103 Wayne Melnick, Esquire C"; ry C'u' q ,?, "?rl•.i 5..1.?+ " ? ?1?f ? ? ?? -y?i QX fT7 T -- , C'; Ql _, „ ?• t , F : _: A t , DAVID AND KAY KINZLER, 707 Doubling Gap Road Newville, PA 17241 PLAINTIFFS V. SMITH TRANSPORT, INC., 331 East Closson Road Roaring Spring, PA 16673 and THOMAS M. WALSH, 3512 Carnarvon Avenue Bristol, PA 19007 DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 CIVIL ORDER OF COURT AND NOW, this 5th day of March, 2009, upon consideration of the Plaintiff's Motion to Compel Production of Documents and the Case Management Order previously issued by this court on November 5, 2008, IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED. Defendant Smith Transport, Inc. shall produce all documents as requested in the Motion to Compel Production of Documents on or before March 27, 2009. Failure to comply with this Order may subject the Defendant to sanctions under the provisions of Pa.R.C.P. No. 4019. By the Court, 'Wayne Melnick, Esquire Abom & Kutulakis Attorneys for Plaintiffs o4ohn A. Statler, Esquire June Essis, Esquire Sk M. L. EbertA. ?Al , Jr., J. 00 rf S rr? ?,t lac P bas V A'MNN3d 01110 9- HYN 6081 AbYiCNOHIOdd H1 3ofa4o°-C`! lH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs vs. CIVIL DIVISION SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH Defendants DOCKET NO. 07-5600 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 Smith Transport, Inc. and Franklin Logistics certify that: 1. A Notice of Intent to Service the subpoena to Philadelphia Biblical University with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate. 3. No objection to this subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. Dated: -1' 'tq FINEMA`N KREKSTEIN ,& HARRIS, P.C. BY: ,'1 ?-,w/ June J.Yssis, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics {00199190;v1} r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH Defendants CIVIL DIVISION DOCKET NO. 07-5600 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants Smith Transport, Inc. and Franklin Logistics intend to serve a Subpoena identical to the one that is attached to this Notice (Philadelphia Biblical University). You have twenty (20) days from the date listed below in which to file of record and to serve upon the undersigned an objection to the Subpoena. If no objection is made, this Subpoena may be served. Dated: FINEMAN KREKSTEIN & HARRIS, P.C. BY: '7k`/tcv7"?'`?"?i-(mil June J. is, Esquire Attorney for Defendants Smith Transport, Inc. and Franklin Logistics (00199190;v1) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DAVID and KAY KINZLER • File No. 07-5600 VS. SMITH TRANSPORT, INC., et al SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: PHILADELPHIA BIBLICAL UNIVERSITY (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED SHEET at 1735 Market Street, Suite 600, Philadelphia, PA, 19103 (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: June J. Essis, Esquire ADDRESS: ar a ree - Suite 600 Philadelphia. 19103 TELEPHONE: 15-893-9300 SUPREME COURT ID # 5 4 18 3 ATTORNEYFOR: De ts. Smith Transport and Franklin Logistics BY THE COURT - k. : /' 1? P? thonotary, Civil Divisi Date: ?Oq 4A V Seal of?the Court putt' SUBPOENA ATTACHMENT FOR THE CUSTODIAN OF RECORDS OF PHILADELPHIA BIBLICAL UNIVERSITY The records of which you are custodian are being requested with regard to the persons named on this subpoena attachment. Name: David R. Kinzler Address: 707 Doubling Gap Road Newville, PA 17241 Date of Birth: 7/11/57 Social Security Number: 156-52-0154 Please supply each and every original school application, evaluation forms, medical records, absence records, attendance records, correspondence, report cards and anything else having to do with David R. Kinzler from the first date of entry into your school to the present date. You are to prodice your entire file in regard to David R. Kinzler, including all records of his teachers. (00199190;v1) n ? ?' f '? ?, ? ,.. . ? ?? ? ? ,?? ? ? __ a :Y? . ' ?. ? s _ ;?1J .? >> ° w -?, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants DEFENDANT SMITH TRANSPORT, INC.'S MOTION FOR RECONSIDERATION OF THE ORDER DATED MARCH 5, 2009 COMPELLING PRODUCTION OF DOCUMENTS Defendants Smith Transport, Inc. hereby respectfully requests this Court reconsider its Order dated March 5, 2009 granting Plaintiff's Motion to Compel Production of Documents and requiring Defendant Smith Transport, Inc. (hereinafter "Smith") to produce certain documents, and in support thereof states as follows: 1. On February 26, 2009 Plaintiffs filed a Motion to Compel Production of Documents seeking certain training materials as well as documents evidencing Smith's gross revenues and net profits for the years 2005 through 2008. See Plaintiff's Motion to Compel Production of Document, attached hereto as Exhibit "A". 2. Although the Motion was filed with the Court on February 26, 2009, Smith did not receive a copy of the motion until March 3, 2009. See date stamped cover letter, attached hereto as Exhibit "B". 3. Plaintiffs knew, and in fact stated in their motion, that Smith was opposed to the Motion. See Exhibit "A", Paragraph 17. 4. However, on March 5, 2009, only two (2) days after Smith received Plaintiff's motion, this Court signed an Order granting Plaintiffs' motion. See Court Order dated March 5, 2009, attached hereto as Exhibit "C". 00204205; 1 Because the Plaintiffs' motion was granted only two days after it was received by Smith, Smith was not afforded the opportunity to respond to the Plaintiffs' motion. 6. Smith has a good faith basis for its opposition to the production of the documents requested in Plaintiffs' Motion to Compel. 7. Plaintiffs motion sought the gross revenues and net profits for the years 2005 through 2008. 8. However, Pennsylvania Rule of Civil Procedure 4003.7 provides as follows: A party may obtain information concerning the wealth of a defendant in a claim for punitivetdamages only upon order of court setting forth appropriate restrictions as to the time of the discovery, the scope of the discovery, and the dissemination of the material discovered. 9. In this case, Plaintiffs improperly sought information regarding the wealth of Smith without first obtaining a Court Order. 10. Because Plaintiffs sought the wealth information without first obtaining a court order in violation of Pa.R.Civ.P. 4003.7, Plaintiffs were not entitled to the information sought in their Motion to Compel. 11. In addition, even if this Court considers production of wealth information appropriate since there is now an Order compelling production of the wealth information, it should be noted that the Court's March 5, 2009 Order does not address any of the requirements contained in Pa.R.Civ.P. 4003.7. ;00204205;vI} 12. More specifically, the Order does not address the appropriate scope of the wealth discovery nor does it address any restrictions on the dissemination of the requested information. 13. Pa.R.Civ.P. 4003.7 clearly requires that these issues be addressed in the Courts Order before a defendant is required to produce information regarding wealth. 14. In addition, before wealth discovery is permitted pursuant to Pa.R.Civ.P. 4003.7, Plaintiffs must demonstrate a prima facie right to recover punitive damages under Pennsylvania law. See O ozaly v. Am. Honda Motor Co., 67 Pa. D. & CAth 314 (Lackawanna County, 2004). 15. To justify an award of punitive damages, the wrongful conduct of the defendant must be "outrageous." Conduct is considered to be outrageous if it is intentional, willful, wanton, Slanpo v. J's Development Associates Inc., 791 A.2d 409, 417 (Pa. Super. 2002), or "done with a bad motive or with a reckless indifference to the interests of others." Judge Technical Services Inc. v. Clancy, 813 A.2d 879, 889 (Pa. Super. 2002). 16. Willful or wanton conduct requires a state of mind in which the tort-feasor realizes the danger and disregards it to such a degree as to evince "a conscious indifference to the perpetration of the wrong." Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A.2d 590, 592 (1988). 17. "Reckless indifference" refers to an intentional act "of an unreasonable character, in disregard to a risk known to [the tort-feasor] or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow." McClellan v. HMO of Penns lvania, 413 Pa. Super. 128, 145, 604 A.2d 00204205;vI 1053, 1061 (1992), appeal denied, 532 Pa. 664, 616 A.2d 985 (1992); Zazzera v. Roche, 54 D.&C.4th 225, 231-32 (Lacka. Cty. 2001). 18. Therefore, for conduct to be considered reckless, "it must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence." Hall v. Jackson, 788 A.2d 390, 403 (Pa. Super. 2001); Glodzik v. Whink Products Co., 61 D.&C.4th 241, 261 (Lacka. Cty. 2003). 19. In this case, Plaintiffs have failed to demonstrate a prima facie right to recover punitive damages against Smith under Pennsylvania law. 20. Because Plaintiffs are unable to demonstrate a prima facie right to recover punitive damages against Smith, they are not entitled to discovery of Smith's wealth information. WHEREFORE, for the reasons set out above, Smith respectfully requests that this Court reconsider its Order dated March 5, 2009 which requires Smith to produce information concerning its wealth. FINEMAN KREKSTEIN & HARRIS, P.C. BY: A a,--z C tina L. Capobianco, Esquire June J. Essis, Esquire Attorneys for Smith Transport, Inc. Dated: March 11, 2009 100204205;v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH Defendants CIVIL DIVISION DOCKET NO. 07-5600 CERTIFICATE OF SERVICE I, CHRISTINA L. CAPOBIANCO, ESQUIRE, hereby certify that a true and correct copy of the foregoing Motion for Reconsideration has been served on the following via Facsimile and U.S. Mail the date set forth below: Wayne Melnick, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Dated: March 11, 2009 FINEMAN KREKSTEIN & HARRIS, P.C. BY: 6/1 Christina L. Capobianco Esquire June J. Essis, Esquire Attorneys for Smith Transport, Inc. 100204205;v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants DEFENDANT SMITH TRANSPORT, INC.'S MOTION FOR RECONSIDERATION OF THE ORDER DATED MARCH 5, 2009 COMPELLING PRODUCTION OF DOCUMENTS EXHIBIT "A" 00204205;vII IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 : Plaintiffs File No: 07-5600 Civil Term Civil Action - Law V. Smith Transport, Inc. 331. East Cl.osson Road Roaring Spring, PA 16673 : and Thomas M. Walsh Jury Trial Demanded 3512 Camarvon Avenue Bristol, PA 19007, Defendants ORDER AND NOW, this ,day of , 2009, upon consideration of the Plaintiffs' Motion to Compel Production of Documents, it is hereby ordered and decreed that said Motion is hereby GRANTED and Defendant Smith Transport, Inc. is ordered to produce all documents as requested in the Motion to Compel Production of Documents within ten (10) days from the date hereof. Upon failure to produce such documents within ten (10) days hereof, the Court may impose sanctions against Defendants. BY THE COURT, J. OM & ULAKIS Jason P. Kutulalds, Esquire Attorney I.D. No.: 80411 Wayne Melnic% Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 t' la :' r.' aza T? 'f cr, C_3 rj Q r_ -'-J ftl ..c IN THE COURT OF COMMON PLEAS, CUMBERLANDCOUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331. East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded TO: THE HONORABLE M.L. EBERT MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND NOW, this p11 day of February, 2009, comes the Plaintiffs, David and Kay Kinzler, by and through their counsel, Jason P. Kutulakis and Wayne S. Melnick, and move this Honorable Court to compel the Defendant, Smith Transport, Inc., (hereinafter referred to as "Defendant Smith") to produce the requested documents and as reason thereof states: 1. The above matter is currently scheduled for Trial on September 21, 2009 before Judge Ebert. 2. On July 19, 2007, Plaintiffs forwarded the attached Request for Production of Documents (Exhibit "A") to Defendants. 3. On or about October 3, 2007, Defendant Smith filed responses to Plaintiffs' Request for Production of Documents. 4. On November 5, 2008, during the course of a Case Management Conference, counsel for Plaintiffs advised counsel for Defendant Smith Transport that they believe that internal policies, procedures, pamphlets, handouts, videos, DVDs or similar materials related to safety that Smith Transport had used to train drivers were in existence but not yet provided to Plaintiffs by Smith Transport. 5. On January 5, 2009, undersigned counsel reminded counsel for Smith Transport via email correspondence that the Plaintiff's original Request for Production of Documents included a request for the discovery material listed in the preceding paragraph. 6. On February 19, 2009, counsel for Smith Transport, June Essis, advised undersigned counsel that it was her belief that no additional documents responsive to the above request were in existence. 7. Contrary to Attorney Essis' assertions, the deposition transcript of Defendant, Director of Safety and Compliance, Mr. Charles W. Costello, II, identified the following training materials: a. 45 minute video presentation on pre-trip inspection (deposition transcript page 28); b. Federal motor carrier safety administration handbook (deposition transcript page 29); c. Orientation materials (deposition transcript page 86-87); d. Videotapes and Power Point presentations (deposition transcript page 90); e. Throughout the course of the deposition testimony, Mr. Costello identified various facets of driver safety training that may have included written or electronic materials requested in Plaintiff's Request for Production of Documents. 8. On January 5, 2009, Plaintiffs provided Defendant Smith Transport with a second set of Interrogatories requested Defendant Smith Transport's gross revenues for the years 2005 through 2008 and net profits for the years 2005 through 2008. 9. Defendant Smith Transport filed no timely objection to the scope of this second of Interrogatories and no written response of any kind. 10. On February 19, 2009, Attorney Essis orally indicated in a telephone conversation to undersigned counsel that Smith Transport objected to Plaintiffs second set of Interrogatories saying that the information requested was outside the scope of discovery. 11. Counsel for Smith Transport has not followed up with any written objection to the material requested in the second set of Interrogatories. 12. The wealth of the Defendant is admissible evidence where punitive damages are at issue. Sprague v. Walter 441 Pa.Superl, 646 A.2d 890, 925(1995). 13. The material requested by Plaintiffs is relevant to the subject matter and litigation. 14. The material requested in this Motion to Compel are relevant to the subject matter involved and will substantially aide the Court in orderly disposition of this litigation. 15. The documents and material requested in this Motion to Compel is relevant to the subject matter involved and the action will substantially aide in the Trial of this case. 16. Defendant Smith Transport has asserted no privilege with respect to the requested documents. 17. Plaintiffs believe that Defendant Smith Transport is opposed to this Motion. WHEREFORE, Plaintiff's pray This Honorable Court to grant its Motion to Compel production of documents and to order Defendant, Smith Transport, Inc. to supply full and complete responses to the Request for Production of Documents and second set of Interrogatories propounded by Plaintiffs within ten. (10) days of your decision by producing all the following items: any and all internal policies and procedures, pamphlets, handouts, videos, DVDs or similar materials related to safety that Defendant Smith Transport had in effect or used to train drivers on the date of the collision, whether actually provided to any of its drivers, dispatchers, safety directors, operation managers, and/or auditors; and gross revenues for the years 2005 through 2008 and net profits for the years 2005 through 2008. Date: _ Respectfully submitted, ABOM & KUTULAKIS, L.L.P. By: Wayne Melnick, Esquire Attorney I.D. No. 53150 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 CERTIFICATE OF SERVICE AND NOW, this day of February, 2009, I, Wayne Melnick, of Abom & Kutulakis, L.L.P hereby certify that I did serve or cause to be served a true and correct copy of the foregoing MOTION TO COMPEL via first class mail to the following: John A. Stader, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17`h Street, Suite 1800 Philadelphia, PA 19103 Wayne Melnick, Es wire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs VS. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants DEFENDANT SMITH TRANSPORT, INC.'S MOTION FOR RECONSIDERATION OF THE ORDER DATED MARCH 5, 2009 COMPELLING PRODUCTION OF DOCUMENTS EXHIBIT "B" 100204205;v I } OM NULAKIS -?_ ATTORNEYS AT LAW February 26, 2009 June Essis, Esquire 1735 Market Street, Suite 600 Philadelphia, PA 19103 John A. Stader, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Re: David and Kay Kinzler v. Smith Transport, Inc. and Thomas Walsh Docket No. 07-5600 Our File No.: 06-348 Dear Ms. Essis and Mr. Statler: Enclosed please find a times tamped copy of the Motion to Compel Production of Documents in the above-referenced matter. Sincerely, ABOM & SUTULASIS, LLP Wa a Me WM/ejf Cc: Client OFFICE LOCATIONS CARLISLE OFFICE (717) 249-0900 HARRISBURG OFFICE (717) 232-9511 CHAMBERSBURG OFFICE (717) 267-0900 YORK OFFICE (717) 846-0900 RECEIVED MAR-32" FINEMAN KREKSTEIN & HARRIS Reply To: 36 SOUTH HANOVER STREET CARLISLE, PA 17013 (717) 249-0900 FAx(717) 249-3344 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KINZLER CIVIL DIVISION Plaintiffs vs. SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants : DEFENDANT SMITH TRANSPORT, INC.'S MOTION FOR RECONSIDERATION OF THE ORDER DATED MARCH 5, 2009 COMPELLING PRODUCTION OF DOCUMENTS EXHIBIT "C" {00204205;vI} DAVID AND KAY KINZLER, 707 Doubling Gap Road Newville, PA 17241 PLAINTIFFS V. SMITH TRANSPORT, INC., 331 East Closson Road Roaring Spring, PA 16673 and THOMAS M. WALSH, 3512 Carnarvon Avenue Bristol, PA 19007 DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-5600 CIVIL ORDER OF COURT AND NOW, this 5u' day of March, 2009, upon consideration of the Plaintiffs Motion to Compel Production of Documents and the Case Management Order previously issued by this court on November 5, 2008, IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED. Defendant Smith Transport, Inc. shall produce all documents as requested in the Motion to Compel Production of Documents on or before March 27, 2009. Failure to comply with this Order may subject the Defendant to sanctions under the provisions of Pa.R.C.P. No. 4019. By the Court, Sk\ -?- M. L. Ebert, Jr., J. Wayne Melnick, Esquire Abom & Kutulakis Attorneys for Plaintiffs John A. Statler, Esquire l 1l ?11?ii June Essis, Esquire /s M( L5 . bas r.a r° r?_t- ? ---t x? .-o ?-? -? ? r-- -r, ; r?-, W _ ?? : r? . ; . .. .__ ,. ..?? ? =? -ABom LITULAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 David and Kay Kinzler Plaintiffs V. Smith Transport, Inc., Thomas M. Walsh and Franklin Logistics Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term : Civil Action -Law : Jury Trial Demanded PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR RECONSIDERARTION OF THE ORDER DATED MARCH 5, 2009 COMPELLING PRODUCTION OF DOCUMENTS AND NOW, this 1 st day of April, 2009, comes the Plaintiffs, David and Kay Kinzler, by and through their counsel, Jason P. Kutulakis and Wayne S. Melnick, and file this Response to Defandants' Motion for Reconsideration opposing said Motion and giving the following reasons: 1. On January 5, 2009, Plaintiffs provided Defendant Smith Transport with a second set of Interrogatories containing a limited in scope to Defendant Smith Transport's gross revenues for the years 2005 through 2008 and net profits for the years 2005 through 2008. 2. Defendant Smith Transport filed no timely objection to the scope of this second of Interrogatories and gave no indication within the time period for a response that Defendants were opposed to the request or that Defendants would require Plaintiffs to seek an order under PA.R.Civ.P. 4003.7. 3. On February 19, 2009, Attorney Essis orally indicated in a telephone conversation to undersigned counsel that Smith Transport objected to Plaintiff's second set of Interrogatories saying that the information requested was outside the scope of discovery. 4. Counsel for Smith Transport did not follow up with any written objection to the material requested in the second set of Interrogatories until March 3, 2009. 5. Plaintiffs were not served with Defendants' Motion for Reconsideration until an electronic copy was emailed to Plaintiffs' counsel on March 26, 2009. 6. The wealth of the Defendant is admissible evidence where punitive damages are at issue. Sprague v. Walter 441 Pa.Superl, 646 A.2d 890, 925(1995). Plaintiff's case for punitive damages will be negatively impact if such evidence is not discoverable. 7. The material requested by Plaintiffs is limited in scope and relevant to the subject matter and litigation. 8. The time frame of the discovery requested is reasonably limited to the year of the accident at issue in this case and the following three years. 9. Plaintiffs have no intention of disseminating the requested information beyond the parties, counsel, court, and jury trying the instant matter, and are not opposed to an order limiting dissemination. Date: 1/1/05 Wayne 9 36 South Hanover Street Carlisle, PA 17103 (717) 249-0900 Attorney for Plaintiffs Respectfully submitted, ABOM & KU U KIS LLP r elnick Es wire CERTIFICATE OF SERVICE AND NOW, I, Wayne Melnick, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Plaintiffs Response to Defendants' Motion for Reconsideration via first-class mail at the following: John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S.17`' Street, Suite 1800 Philadelphia, PA 19103 DATE Wayne Melnick, Esquire (f i0o* 10 WT(. 1 V* T. . 00-01 DAVID AND KAY KINZLER, IN THE COURT OF COMMON PLEAS OF PLAINTIFFS CUMBERLAND COUNTY, PENNSYLVANIA V. SMITH TRANSPORT, INC., and THOMAS M. WALSH, DEFENDANTS NO. 07-5600 CIVIL ORDER OF COURT AND NOW, this 27th day of March, 2009, upon consideration of the Defendant Smith Transport, Inc.'s Motion for Reconsideration of Order dated March 5, 2009, Compelling Production of Documents, and the Court noting that Defendant Smith 4 Transport Inc., failed to file timely objections to the scope of Plaintiff's Second Set of Interrogatories requesting the documents now in dispute, IT IS HEREBY ORDERED AND DIRECTED that the Motion for Reconsideration is DENIED. IT IS FURTHER ORDERED AND DIRECTED that Defendant Smith Transport, Inc., shall provide gross revenues and net profits for the years 2005, 2006, 2007 and 2008. Attorneys for the Plaintiffs shall maintain this material solely within their control and not distribute it to any other person without express Order of Court. IT IS FURTHER ORDERD AND DIRECTED that the requested materials shall be provided to the Plaintiffs on or before the settlement conference currently scheduled before this Court on Friday, April 24, 2009, at 10:00 a.m. in the Chambers of Courtroom No. 5. By the Court, M. L. Ebert, Jr., J. 4Q ate.. Wayne Melnick, Esquire Jason Kutulakis, Esquire Attorneys for Plaintiff ? June Essis, Esquire 'l-'John A. Statler, Esquire bas COP1? ?ILL ??a?of TAB OM CSC" N Ul AKIS Jason P. Kutulakis, Esquire Attorney I.D. No.: 80411 Wayne Melnick, Esquire Attorney LD. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, CUMBERLANDCOUNTY, PENNSYLVANIA CIVIL DIVISION David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded TO: THE HONORABLE M.L. EBERT MOTION FOR SANCTIONS AND NOW, this day of April, 2009, come the Plaintiffs, David and Kay Kinzler, by and through their counsel, Jason P. Kutulakis and Wayne S. Melnick, and move this Honorable Court to compel the Defendant, Smith Transport, Inc., (hereinafter referred to as "Defendant Smith") to produce the requested documents and as reason thereof states: On March 5, 2009, This Honorable Court issued an Order directing Defendant Smith to "produce all documents as requested in the Motion to Compel Production of Documents on or before March 27, 2009. 2. On March 11, 2009 Defendant Smith filed a Motion for Reconsideration asking This Honorable Court to reconsider that Order to the extant that it compels Defendant Smith to produce financial records. The Motion for Reconsideration does not appear to challenge the order with respect to production of non-financial records. 3. Defendant has failed to produce any material pursuant to the Court Order of March 5, 2009. 4. PaRCP 4019 provides for the imposition of sanctions where a party fails to serve answers to interrogatories PaRCP 4019 (a)(1)(i)(iii); fails to respond to a request for production PaRCP 4019 (a)(1)(vii); or where a party "otherwise fails to make discovery or to obey an order of court respecting discovery" PaRCP 4019 (a)(1)(viii). 5. PaRCP 4019 (c) (1)-(5) provide actions permitted by the Court as sanctions for the failure of a party to comply. These actions include refusing a disobedient party the right to support or oppose designated claims or defenses. 6. Plaintiffs in their complaint allege that Defendant Smith was negligent in entrusting a motor vehicle to a Defendant Walsh without undertaking adequate measures to ensure that Defendant Walsh was capable of operating the vehicle in a safe and lawful manner. 7. It is believed that Defendant Smith will assert as a defense to this claim that it provided adequate training to Defendant Walsh on the safe and lawful operation of motor vehicles. 8. The discovery sought by Plaintiff is directed, in part, to document information which would rebut Defendant's defense that it provided adequate training to Defendant Walsh on the safe and lawful operation of motor vehicles. 9. PaRCP 4019 (g)(3) permits the Court to apportion reasonable expenses incurred in relation to a motion for sanctions. 10. Counsel for Plaintiff anticipates the fees attendant to the filing and hearing on this motion and the original Motion to Compel will be $500.00. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order providing for sanctions against Defendant as follows: 1. prohibiting Defendant Smith from producing any evidence at trial of this matter to support its defense that it provided adequate training to Defendant Walsh on the safe and lawful operation of motor vehicles.; i 2. finding Defendant Smith liable for the claim that Defendant Smith was negligent in entrusting a motor vehicle to a Defendant Walsh without undertaking adequate measures to ensure that Defendant Walsh was capable of operating the vehicle in a safe and lawful manner provided Plaintiff prevails on its proof of the claim as due and owing; 3. directing Defendant to pay the reasonable expenses incurred by Plaintiff in relation to this motion; 4. directing Defendant to pay $1,000 as a sanction for its failure to comply, said amount being to the Court to establish a judicial fund for the appointment of Guardians ad Litem for foster children in Cumberland County; and 5. such order with regard to the failure to make discovery as is just. FURTHER, Plaintiff respectfully requests that this Court enter an Order compelling Defendant to meet Plaintiff's discovery requests. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. ayne Melnick 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiffs 10. . . CERTIFICATE OF SERVICE ON THIS, A day of April, 2009, I, Wayne Melnick, Esquire, counsel for plaintiff, do hereby certify that I have caused the foregoing Motion for Sanctions, to be served upon the following individuals, by U.S., first-class mail: John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17th Street, Suite 1800 Philadelphia, PA 19103 ABOM & KUTULAKIS, L.L.P. FILED-OfFICE OF THE PRO-Pi^NOTAAY 7009 APR -7 AM #0: 00 GJzui . ., s L, e ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY K LER Plaintiffs vs. SMITH TRANSPORT INC., FRANKLIN LOGISTICS and THOMAS M. WALSH efendants CIVIL DIVISION DOCKET NO. 07-5600 DEFENDANT SMITH TRANSPORT, INC.'S RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR SANCTIONS AND NOW, this 9'h day of April, 2009, comes the Defendant, Smith Transport, Inc. (hereinafter referred to as "Smith"), by and through their counsel, Fineman Krekstein & Harris, and file this response in opposition to Plaintiff's Motion for Sanctions and states as follows: 1. On Febr?ary 26, 2009 Plaintiffs filed a Motion to Compel Smith to produce documents, inc uded orientation materials and videotapes. See Motion to Compel attached hereto as Exhibit "A". 2. Counsel or Smith did not receive copy of the Motion to Compel until March 3, 2009. See Co espondence from Wayne Melnick attached hereto as Exhibit "1399. 3. Only two (2) days after Smith received the Motion to Compel, on March 5, 2009 this Court grant d Plaintiff's Motion and issued an Order directing Smith to "produce all documents is requested in the Motion to Compel Production of Documents. See Order dated March , 2009 attached hereto as Exhibit "C". 4. Smith di not have an opportunity to respond or oppose Plaintiff's Motion to Compel. 100211055;v]} e I 5. The Order required that Smith produce the requested documents on or before March 27, 2009, 6. After receiving the Order, counsel for Smith had several conversation with counsel for the Plaintiffs. 7. In those conversations, counsel for Smith advised counsel for the Plaintiffs that many of the videot pes which were to be produced were proprietary in nature and subject to copyright laws. 8. Because of the proprietary nature of the videotapes, counsel for Smith advised counsel for the Plaintiffs that there was some difficulty in reproducing the videotapes. 9. In addition, counsel for Smith requested that counsel for the Plaintiffs sign a Confidentiality Stipulation because of the proprietary nature of the videotapes and because of concerns regarding copyright laws. 10. On April 2, 2009, counsel for the Plaintiff sent email correspondence to counsel for the Smith requesting the status of the materials to be produced pursuant to the Court's Order. See email correspondence attached hereto as Exhibit "D". 11. In response, counsel for Smith send email correspondence to counsel for the Plaintiffs confirming, that the videotapes had been reproduced and should be arriving in Plaintiff's counsel's office by mid-week (the week of April 6, 2009). See Exhibit "D". 12. At that ti e, Counsel for Plaintiffs did not voice any objection to Smith's production of the videot pes past the date specified by the Court's Order. {ooz>>oss;vl} 13. On Apri 8, 2009 Counsel for Smith sent Counsel for the Defendants the requested materials via Federal Express. See correspondence enclosing materials, attached hereto as Exhi it "E". 14. After th materials had been sent out, counsel for Smith learned that Plaintiffs had filed the i nstant Motion for Sanctions on April 7, 2009. 15. Despite counsel for Plaintiffs' knowledge regarding the difficulty of reproducing copyrighte d and propriety materials, as well as Plaintiff's counsel knowledge that the materials were t o be produced the following week, Plaintiffs refused to grant Defendants the professi nal courtesy and allow Defendants a few additional days to produce the requested m aterials. 16. Counsel or Defendants has been courteous and professional to counsel for the Plaintiffs throughou this litigation and has extended several professional courtesies to Plaintiff's counsel, inch ding allowing the Plaintiffs additional time after the court imposed deadlines to pr duce their expert reports. 17. In contra st, counsel for Plaintiffs have not extended the same courtesies and have filed the instan t Motion to Compel. 18. After co firming that counsel for the Plaintiffs had received the materials sent by Defendants purs uant to the Court's Order, counsel for Defendants contacted counsel for the Plaintiff and requested that the Motion be withdrawn. See email correspondence attache hereto as Exhibit "F". 19. Despite efendants compliance with the Order, Plaintiffs have refused to withdrawal the instant in tion. {oozlloss;vlI 20. As of Court's Order and 21. Court deny Plaintiffs' Dated: April 9, 2009 date of this Response, Defendants have complied with the produced the materials requested to the Plaintiffs. Plaintiffs' Motion for Sanctions is moot and should be denied. for the reasons set out above, Smith respectfully requests that this on for Sanctions.. FINEMAN KREKSTEIN & ARRIS, P.C. BY: C W tins L. Capobianco, Esqu re June J. Essis, Esquire Attorneys for Smith Transport, Inc. 100211055;vII IN THE COUI T OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KIIZLER Plaintiffs vs. SMITH TRANSPORT INC., FRANKLIN LOGISTICS and THOMAS M. WALSH afr?n??nte I, CHRISTINA correct copy of the CIVIL DIVISION DOCKET NO. 07-5600 CERTIFICATE OF SERVICE CAPOBIANCO, ESQUIRE, hereby certify that a true and Response in Opposition to Plaintiffs' Motion for Sanctions has been served on the Following via Facsimile and U.S. Mail the date set forth below: Wayne Melnick, Esquire Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 Dated: April 9, 2009 John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 FINEMAN KREKSTEIN & HARRIS, P.C. BY: Christina L. Capobianco, Esquire June J. Essis, Esquire Attorneys for Smith Transport, Inc. tooz>loss;vI) IN THE CO T OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY K LER CIVIL DIVISION laintiffs vs. SMITH TRANSPORT INC., FRANKLIN LOGISTICS and THO AS M. WALSH DOCKET NO. 07-5600 efendants : D FENDANT SMITH TRANSPORT, INC.'S E IN OPP SITION TO PLAINTIFFS' MOTION FOR SANCTIO XHIBIT "A" (00211055;v1) IN THE COURT OF David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331. East Cl.osson. Road Roaring Spring, PA 166T. and Thomas M. Walsh 3512 Camarvon Avenue Bristol, PA 19007, )MMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded ORDER AND NOW, this Plaintiffs' Motion to said Motion is hereby GR, documents as requested in from the date hereof. Court may impose -.day of , 2009, upon consideration of the :l Production of Documents, it is hereby ordered and decreed that 4TED and Defendant Smith Transport, Inc. is ordered to produce all 1e Motion to Compel Production of Documents within ten (10) days failure to produce such documents within ten (10) days hereof, the against Defendants. BY THE COURT, J. Aom' UUI AKIS Jason P. Kutulakis, Esquire Attorney I.D. No.: 80411 Wayne Melnick, Esquire Attorney I. D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 IN THE COURT OF David and Kay Kinzler 707 Doubling Gap Road Newville, PA 17241 Plaintiffs V. Smith Transport, Inc. 331 East Closson Road Roaring Spring, PA 16673 and Thomas M. Walsh 3512 Carnarvon Avenue Bristol, PA 19007, Defendants TO: THE HONORABLE *.L. EBERT cm? W i7 tv ? m :) PLEAS, CUMBERLANDCOUNTY, PENNSYLVANIA CIVIL DIVISION File No: 07-5600 Civil Term Civil Action - Law Jury Trial Demanded MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND NOW, this J (p ' day of February, 2009, comes the Plaintiffs, David and Kay Kinzler, by and through thei? counsel, Jason P. Kutulakis and Wayne S. Melnick, and move this Honorable Court to compel ?he Defendant, Smith Transport, Inc., (hereinafter referred to as "Defendant Smith") to produce the requested documents and as reason thereof states: 1. The above matter is currently scheduled for Trial on September 21, 2009 before Judge Ebert. 2. On July 19, 20P7, Plaintiffs forwarded the attached Request for Production of Documents (Exhibit "A") ?o Defendants. 3. On or about October 3, 2007, Defendant Smith filed responses to Plaintiffs' Request for Production of Docume its. 4. On November , 2008, during the course of a Case Management Conference, counsel for Plaintiffs advised co el for Defendant Smith Transport that they believe that internal policies, procedures, pamp lets, handouts, videos, DVDs or similar materials related to safety that Smith Transport had u ed to train drivers were in existence but not yet provided to Plaintiffs by Smith Transport. 5. On January 5, 2 09, undersigned counsel reminded counsel for Smith Transport via email correspondence that a Plaintiff's original Request for Production of Documents included a request for the discovery aterial listed in the preceding paragraph. 6. On February 19, 2009, counsel for Smith Transport, June Essis, advised undersigned counsel that it was her belief that no additional documents responsive to the above request were in existence. 7. Contrary to Atto ey Essis' assertions, the deposition transcript of Defendant, Director of Safety and Com liance, Mr. Charles W. Costello, II, identified the following training materials: a. 45 mi video presentation on pre-trip inspection (deposition transcript page 28); b. Federa: page 24 c. Oriente d. Videot, e. Throug various 8. On January 5, of Interrogatories through 2008 and net 9. Defendant Interrogatories and no motor carrier safety administration handbook (deposition transcript n materials (deposition transcript page 86-87); s and Power Point presentations (deposition transcript page 90); Lit the course of the deposition testimony, Mr. Costello identified -ets of driver safety training that may have included written or materials requested in Plaintiff's Request for Production of 09, Plaintiffs provided Defendant Smith Transport with a second set Defendant Smith Transport's gross revenues for the years 2005 for the years 2005 through 2008. Transport filed no timely objection to the scope of this second of n response of any kind. 10. On February .19? 2009, Attorney Essis orally indicated in' a telephone conversation to undersigned counsel that saying that the information 11. Counsel for material requested in the ; 12. The wealth of issue. Sprague v. Walter 13. The material i 14. The material involved and will ith Transport objected to Plaintiff's second set of Interrogatories was outside the scope of discovery. Transport has not followed up with any written objection to the set of Interrogatories. Defendant is admissible evidence where punitive damages are at 1 Pa.Superl, 646 A.2d 890, 925(1995). by Plaintiffs is relevant to the subject matter and litigation. ted in this Motion to Compel are relevant to the subject matter aide the Court in orderly disposition of this litigation. 15. The documents and material requested in this Motion to Compel is relevant to the subject matter involved and the action will substantially aide in the Trial of this case. 16. Defendant SOth Transport has asserted no privilege with respect to the requested documents. 17. Plaintiffs belie a that Defendant Smith Transport is opposed to this Motion. WHEREFORE, Plaintiff's pray This Honorable Court to grant its Motion to Compel production of documents 4nd to order Defendant, Smith Transport, Inc. to supply full and complete responses-to the (Request for Production of Documents and second set of Interrogatories propounded by Plaintiffs within ten. (10) days of your decision by producing all the following items: any and all internal policies and procedures, pamphlets, handouts, videos, DVDs or similar materials related to safety that Defendant Smith Transport had in effect or used to train drivers on the date of the collision, whether actually provided to any of its drivers, dispatchers, safety directo s, operation managers, and/or auditors; and gross revenues for the years 2005 through 2008 net profits for the-years-2005 through-2008. -- Respectfully submitted, ABOM & KUTULAKIS, L.L.P. Date: f.- By: Z"C?? Wayne Melnick, Esquire Attorney I.D. No. 53150 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 CERTIFICATE OF SERVICE AND NOW, this O hereby certify that I did MOTION TO COMP of February, 2009, I, Wayne Melnick, of Abom & Kutulakis, L.L.P or cause to be served a true and correct copy of the foregoing via first class mail to the following: John A. Stader, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 June Essis, Esquire Fineman Krekstein & Harris, P.C. United Plaza 30 S. 17'' Street, Suite 1800 Philadelphia, PA 19103 Wayne Melnick, Es wire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KIN LER CIVIL DIVISION laintiffs vs. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THO AS M. WALSH DOCKET NO. 07-5600 ANT SMITH TRANSPORT, INC.'S IN 'rn Di A TW9rTL'lMQ l XdllT7l11k7 T1 . XHIBIT °B" {00211055;v1} 00M OFFICE LOCATIONS CARLISLE OFFICE (717) 249-0900 e ULAKIS HARRISBURG OFFICE (717) 232--9511 ATTORNEYS AT LAW Ctu>KBE OFFICE (7117) 7) 2 267-0900 February 26, 2009 YORK OFFICE (717) 846-0900 June Essis, Esquire 1735 Market Street, Suite Philadelphia, PA 19103 John A. Stader, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Re: David and Docket No Our Pile N Dear Ms. Essis and Mr. Enclosed please Documents in the abov, s;ay Kinzler v. Smith Transport, Inc. and Thomas Walsh 07-5600 ,.: 06-348 a times tamped copy of the Motion to Compel Production of erenced matter. Sincerely, ABOAf& UTULA"S, LLP Wa a Me WM/ejf Cc: Client RECEIVED LIAR - 3 2009 FINEMAN KREKSTEIN a HARRIS Reply To: 36 SOUTH HANOVER STREET CARusLE, PA 17013 (717) 249-0900 FAX (717) 249-3344 IN THE COUR? OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY vs. CIVIL DIVISION SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 ANT SMITH TRANSPORT, INC.'S XHIBIT "C" (00211055;vlI DAVID AND KAY KINZLER, 707 Doubling Gap Road Newville, PA 17241 PLAINTIFFS V. SMITH TRANSPORT, INC., 331 East Closson Road Roaring Spring, PA 16673 and THOMAS M. WALSH, 3512 Carnarvon Avenue Bristol, PA 19007 DEFEND) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-5600 CIVIL ORDER OF COURT AND NOW, this 5 h Motion to Compel previously issued by this IT IS HEREBY Defendant Smith T. to Compel Production of with this Order may Pa.R.C.P. No. 4019. day of March, 2009, upon consideration of the Plaintiffs of Documents and the Case Management Order on November 5, 2008, AND DIRECTED that the Motion is GRANTED. Inc. shall produce all documents as requested in the Motion on or before March 27, 2009. Failure to comply the Defendant to sanctions under the provisions of By the Court, -?' LAI 'r\ M. L. Ebert, Jr., J. Wayne Melnick, Esquire Abom & Kutulakis Attorneys for Plaintiffs John A. Statler, Esquire June Essis, Esquire bas A Coo *1 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY KIN LER CIVIL DIVISION vs. SMITH TRANSPORT, INC., FRANKLIN LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 Defendants DEFENDANT SMITH TRANSPORT, INC.'S IN OPPOSITION TO PLAiNTiFFS' MnTinN Fnl XHIBIT `6D" {00211055;vi} From: Christina Capobiam Sent: Thu 4/2/2009 04:23 Rcvd: Thu 4/2/2009 04:23 To: Wayne Melnick (WMI Subject: RE: Kinzler v. Sri Transport Thanks Wayne. I did just spe k to my client about the videotapes which he sent to me by federal express today. I should have them by onday at the latest and will review them and hopefully have them to you by mid week. From: Wayne Melnick [mailto WM@AbomKutulakis.com] Sent: Thursday, April 02, 200 4:21 PM To: Christina Capobianco Subject: RE: Kinzler v. Smith Transport I am waiting to hear back fry expect to have that decision From: Wayne Melnick [mai Sent: Thursday, April 02, 2( To: 'Christina Capobianco' Subject: RE: Kinzler v. Sm: I have that email. I'll What I do not have is any March 27, 2009. What is Mr. Kutulakis so 1 can give you our decision on the letter for you tomorrow. WM@AbomKutulakis.com] 9:50 AM Transport the case by the end of the morning and get back to you. the non-financial discovery Judge Ebert ordered to be produced by status of those materials? IN THE COUR? OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY vs. CIVIL DIVISION SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 ANT SMITH TRANSPORT, INC.'S XHIBIT `6E" (00211055;v1) PHILADELPHIA OFFICE Mellon Bank Center 1735 Market Street - Suite 600 Philadelphia, PA 19103 (215) 893-9300 Fax: (215) 893-8719 CHRISTINA L. CAPOBIANCO Direct Dial: (215) 893-8731 ccapobianco@finenianlawfirm.com A Pennsylvania Professional Corporation ATTORNEYS-AT-LAW www.finemanlawfirm.com NEW JERSEY OFFICE 20 Brace Road Suite 350 Cherry Hill, NJ 08034 (856) 795-1118 Fax: (856) 795-1110 Please Reply to Philadelphia Office April 8, 2009 Wayne Melnick, Esq Abom & Kutulakis 36 S. Hanover Street Carlisle, PA 17013 Re: Kinzler Smith Transport, Inc., et al CCP Cumberland County - No. 07-5600 Our File No. 7989119768 Dear Wayne: Enclosed please rind the following training videos utilized by Smith Transport: 1. Marsh Pre-Trip; 2. B ck Safety - A Users Guide; 3. Michelin X-Ones - Keys to Safety; 4. Accidents; 5. C T Training - Video 1; 6. C T Training - Video 2; 7. A pleton Papes Training Video; 8. E treme Weather Driving; 9. Seed and Space Management. Please note these videos are designated as "CONFIDENTIAL" pursuant to the Confidentiality Stipulati n previously provided to you. In addition, due to copying rest also utilizes two videos which we were not able to reproduce The information for these videos is as follows: {00210623;v1 I Wayne Melnick, E: Abom & Kutulakis April 8, 2009 Page 2 1. Rollovers (The Human Factor), Produced by the Institute of Driver Behavior, 1423 N. 8`h Street, Superior WI, 54880, telephone 888- 228-6802. 2. Twenty Reasons Not to Tailgate, Produced by the Institute of river Behavior, 1423 N. 8`h Street, Superior WI, 54880, telephone 8 8-228-6802. If you would like copie? of these videos you can purchase them directly from the producer. Although I have Sanctions regarding the produced, your motion i this assumption, please CLC cc: John A. Statler, of received a copy yet, I understand you have filed a Motion for roduction of these videos. Since the videos have now been moot and I assume you will withdrawal it. If I am incorrect in ?ntact me immediately. Very truly yours, Christina G. Capo6ianco CHRISTINA L. CAPOBIANCO w/out videos) {00210623;v1} From Origin D. PSQA (215) 693-9300 JOAN MULLER FINEMAN KREKSTEIN HARRIS, P.C 1735 Market Street suite 600 PHILADELPHIA, PA 19103 SHIP TO: (215) 893-9300 BILL SENDER Wayne Melnick, Esquire Adom & Kutulakis 36 S HANOVER ST CARLISLE, PA 17013 Ship Date: 08APR09 ActWgt 1.0 LB CAD: 5151701AJET9011 Amour& S VYN?IIIIIIIIIIII?11111 Ref # 7989/19768 Invoice Al PO # Dept # 7974 88191855 E9 GTYA THU - 09APR A4 FIRST OVERNIGHT 17013 PA-US MDT After printing this label: 1. Use the 'Print' button on this page to print your la el to your laser or inkjet printer. 2. Fold the printed page along the horizontal line. 3. Place label in shipping pouch and affix it to your ipment so that the barcode portion of the label can be read and scanned. Warning: Use only the printed original label for ship ing. Using a photocopy of this label for shipping purposes is fraudulent and could result in additional billing charges, along with the cancellation of your FedEx ccount number. Use of this system constitutes your agreement to the se a conditions in the current FedEx Service Guide, available on fedex.com.FedEx will not be responsible for any claim in excess of $100 per package, whether the result of toss damage, delay, non-delivery,rrisdelivery,or misinformation, unless you declare a higher value, pay an additional charge, document your actual loss and file a timely claim. 'mitations found in the current FedEx Service Guide apply. Your right to recover from FedEx for any loss, including intrinsic valueof the package, toss of sates, income intere t, profit, attorney's fees, costs, and other forms of damage whether direct, incidental.consequential, or special is limite< to the greater of $100 or the authorized declared value. R very cannot exceed actual documented loss.Maximum for items of extraordinary value is $500, e.g. jewelry, precious metals, negotiable instruments and other items I' ted in our ServiceGuide. Written claims must be filed within strict time limits, see current FedEx Service Guide. IN THE COUR? OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DAVID and KAY vs. CIVIL DIVISION SMITH TRANSPORT, INC., FRANKLIN : LOGISTICS and THOMAS M. WALSH DOCKET NO. 07-5600 SMITH TRANSPORT, INC.'S XHIBIT "F" {00211055;vI} Christina Caaobianco From: Sent: To: Subject: Wayne, Christina apobianco Thursday April 09, 2009 10:01 AM 'Wayne (nick' Kinzier v. Smith The federal express tracking system i dicates that the discovery materials we sent yesterday were received by your office at 7:57 this morning. Please confirm b 3pm today that you will withdrawal your Motion for Sanctions currently pending before Judge Ebert. Thank you, Christina Christina L. Capobianco Fineman Krekstein & Harris, P.C. Mellon Bank Center 1735 Market Street Suite 600 Philadelphia, Pennsylvania 19103 215-893-8731 - direct 215-893-8719 - fax http://www.finemanlawfirm.com ALED-irrlCE 7120r.j' T OF T T- P3---\J i r- ?,1 2009 APP 114 P1M 1 * 27 C.. d S OM CSC' &U ULAKIS Wayne S. Melnick, Esquire Attorney I.D. #: 53150 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 David and Kay Kinzler, Plaintiffs V. Smith Transport, Inc., Thomas M. Walsh and Franklin Logistics Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5600 Civil Term Civil Action -Law PRAECIPE TO DISCONTINUE AND MARK SATIFIED TO THE PROTHONOTARY: Please enter Claimant's voluntary discontinuance of the within action pursuant to Pennsylvania Rule of Civil Procedure. This matter should be marked as discontinued, settled and completely satisfied. Respectfully submitted, Date: U . I )-Coq ABOM & KUTULAKIS, L.L.P. Wayne Melnick, Esq re 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Claimant F1LEG-'0 =FiCE 7F THE F F " y "' ??? ,,f??! 2009 JUN °3 Pi"I I • 1 1,