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HomeMy WebLinkAbout07-6633?"% 'Itc4.. MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID#77187 PETER VACCARO, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants NO. 61- LoUS3 aivi 1 Term PRAECIPE FOR SUMMONS TO THE PROTHONOTARY OF SAID COURT: ISSUE Summons in Civil Action - Law in the above case. x Writ of Summons shall be issued and forwarded to Attorney. Date: l?3° b M HA D. DAUTRICH, ESQ. 526 Court Street Reading, PA 19601 610-375-9455 ID #77187 j'o n ? ?y c d $ 00 - -n -. _. f MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID#77187 PETER VACCARO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 67 - wos3 l?iv? l Trm ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants SUMMONS IN CIVIL ACTION TO: ESTATE OF CLYDE D. ZEIGLER: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF, PETER VACCARO, HAS COMMENCED AN ACTION AGAINST YOU. CURTIS R. LONG, PROTHONOTARY X0111107 By: Deputy Prothonota MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID#77187 PETER VACCARO, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. OZ - (o(0 33 e. i v , 1 -7ir N ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants SUMMONS IN CIVIL ACTION TO: ESTATE OF SARA ZEIGLER: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF, PETER VACCARO, HAS COMMENCED AN ACTION AGAINST YOU. CURTIS R. LONG. PROTHONOTARY 10131 /O7 By: ??' K. Deputy Prothonota MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 ...... .._...._.... __-_-.....-_--.......... __...-_._ ......... ........... _......... _..... _................. }. -._..-.-_-_...-_..._.......-.-._...-_._..___...._- PETER VACCARO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAEW VS. NO. 07-6633 CIVIL TERM ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants PRAECIPE TO REISSU9 WRIT TO THE PROTHONOTARY: Pursuant to Pa. R.C.P. 401(b)(1), please reissue the Writ in the above-captioned matter. ( C) (<6 (A MICHOL D. DAUTRICH, ESQ. I.D. #77187 526 Court Street Reading,! PA 19601 610-3769455 (Attorney for Plaintiff) Q -: MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 1%01 610-375-9455 PETER VACCARO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAEW VS. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants NO. 07-6633 CIVIL TERM PRAECIPE TO REISSUE WRIT TO THE PROTHONOTARY: Pursuant to Pa. R. C.P. 401(b)(1), please reissue the Writ in the above-captioned matter. 991_? MICHAEL D. DAUTRICH, ESQ. I.D. #77187 526 Court Street Reading, PA 19601 610-376-9455 (Attorney for Plaintiff) N 0 Q su b?L "J fir-.. SHERIFF'S RETURN - NOT FOUND .1 ? CASE NO: 2007-06633 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND VACCARO PETER VS ZEIGLER CLYDE D ESTATE OF ETAL R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT ZEIGLER SARA ESTATE OF but was unable to locate Her in his bailiwick. WRIT OF SUMMONS , He therefore returns the the within named DEFENDANT 10 MEADE DRIVE NOT FOUND , as to , ZEIGLER SARA ESTATE OF CARLISLE, PA 17013 UNABLE TO SERVE PRIOR TO EXPIRATION OF PAPER. Sheriff's Costs: Docketing Service Not Found Surcharge ii// F?bb' yt,- So answers: 18.00 -!E? 5.00 5.00 R. Thomas Kline 10.00 Sheriff of Cumberland County .00- ? 38.00 DAVID DAUTRICH 11/12/2008 Sworn and Subscribed to before me this day of A. D. MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 ID #77187 610-375-9455 PETER VACCARO, Plaintiff VS. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants --------------------------------------------------------- ----------------- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 ACCEPTANCE OF SERVICE I, David S. Sobotka, as Administrator of the Estate of Clyde D. Zeigler, hereby accept service of the Summons in the above-captioned matter. 16 2?? David S. Sobotka Dated: '4 6? - / 'L MICHAEL D. DAUTRICH, ESQ. 'DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID#77187 PETER VACCARO, : Plaintiff VS. ESTATE OF CLYDE D. ZEIGLER and : ESTATE OF SARA ZEIGLER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. b? _ &&S3 SUMMONS IN CIVIL ACTION TO: ESTATE OF CLYDE D. ZEIGLER: Civi 1 Trwm YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF, PETER VACCARO, HAS COMMENCED AN ACTION AGAINST YOU. CURTIS R. LONG. PROTHONOTARY 10111/o7 By: Deputy Prothonota ohm f, i item 4t ?,n & tit :.? cj?i of _ z d at P i . CD .7« ?a SHERIFF'S RETURN - REGULAR CASE NO: 2007-06633 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VACCARO PETER VS ZEIGLER CLYDE D ESTATE OF ETAL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ZEIGLER SARA ESTATE OF the DEFENDANT , at 0008:06 HOURS, on the 21st day of November-, 2008 at 10 MEADE DRIVE CARLISLE, PA 17013 by handing to NANCY DELLINGER ADMINISTRATOR OF ESTATE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 5.00 .00 10.00 .00 33.00 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 11/24/2008 DAVID DAUTRICH By: d Deputy Sheriff of A. D. MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 1%01 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants NO. 07-6633 CIVIL TERM NOTICE TO DEFEND 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 is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claims in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER'S REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEFORD ST. CARLISLE PA 17013 TELEPHONE NO. (717) 249-3166 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants NO. 07-6633 CIVIL TERM COMPLAINT 1. The amount in controversy is in excess of $50,000.00. 2. The Plaintiff, Peter Vaccaro, III, is an adult individual currently residing at 264 Sand Hill Road, Fleetwood, Berks County, Pennsylvania. 3. The Defendant, Estate of Clyde D. Zeigler is represented by its Administrator, who is David S. Sobotka, Esquire with a business address of 519 Walnut St., Reading, Berks County, Pennsylvania. 4. The Defendant, Estate of Sara Zeigler, is an estate that was probated in the County of Cumberland, whose administrator is Nancy Dellinger with a mailing address of 10 Meade Drive, Carlisle, PA 17013. 5. On November 3, 2005, at approximately 11:13 a.m., Plaintiff, Peter Vaccaro, III was a passenger in an automobile owned by Tony Simonetta. On that day and time, a vehicle operated by Clyde D. Ziegler, deceased, was traveling Westbound on State Route 114 approaching the intersection of Willow Mill Park Road in Silver Spring Township, Cumberland County, Pennsylvania at which time the Zeigler vehicle caused a multi-car accident when it turned in front of another vehicle traveling Eastbound on State Route 114 and was struck causing the Zeigler vehicle to go across a grass barrier and strike two other vehicles, one of which was the Simonetta vehicle in which Plaintiff was a passenger. The Zeigler vehicle struck Simonetta's vehicle head on while Simonetta's vehicle was Eastbound on Route 114 in the right lane of travel. 6. The force of the accident was so great that Plaintiff was thrown about inside the Simonetta vehicle. 7. Shortly after the accident, Plaintiff was transported to the Holy Spirit Hospital via ambulance where he was treated for multiple traumatic injuries to his back, neck, and body due to the accident. 8. At the time and place aforesaid, Clyde D. Zeigler so negligently and carelessly operated his vehicle such that he caused a violent collision with the Simonetta vehicle. 9. The aforesaid vehicle collision was caused by the carelessness and negligence of Clyde D. Zeigler who failed to keep his vehicle under proper and adequate control as a reasonable and prudent person would do under the circumstances. COUNT I-PETER VACCARO, III vs. ESTATE OF CLYDE D. ZEIGLER--NEGLIGENCE 10. Paragraphs 1 through 9 of this Complaint are incorporated herein by reference as if set forth herein at length. 11. At the time and place aforesaid, the negligence and carelessness of the Defendant, Clyde D. Zeigler, consisted of the following: (a) Failing to keep the vehicle he was operating under proper and adequate control to avoid the Simonetta vehicle as it was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (b) Failing to drive at a safe speed; (c) Operating his vehicle in a dangerous and careless fashion, directly towards the place where the Simonetta vehicle was then situated, thereby violently colliding and striking the Simonetta vehicle which was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (d) Failing to use due care under the circumstances then and there existing; (e) Failing and neglecting to have the vehicle he was operating under proper and adequate control so as to be able to stop prior to the collision; (f) Failing to apply his brakes or take evasive action so as to avoid causing the collision with the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania where the Simonetta vehicle was there to be seen by a prudent driver; (g) Operating his vehicle in a careless disregard of the rights and safety of Plaintiff and in such a manner as to endanger Plaintiffs person; (h) Negligently failing to exercise reasonable care to discover the peril and eminent danger to Plaintiff; (i) Negligently failing, after perceiving and knowing of the danger to Plaintiff, or after he could, by the exercise of due care and caution, have known and perceived as perilous the situation to do anything to prevent the collision between his vehicle and the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania either by applying his brakes and stopping the vehicle or turning away from the Simonetta vehicle or otherwise taking evasive action; 0) Failing to slow his vehicle down or to bring it to a complete halt to avoid the collision with the Simonetta vehicle; (k) Failing to keep a vigilant outlook for vehicles upon the roadway where Defendant was driving when it was reasonably foreseeable that other vehicles would be encountered; (1) Failing to sound a horn or otherwise warn of the approach of his vehicle for the protection of Plaintiff on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (m) Failing to maintain a proper outlook and failing to exercise ordinary care towards Plaintiff, who he could or should have seen in a position of peril because Defendant had the last clear chance to avoid the collision with the Simonetta vehicle by the exercise of ordinary care; (n) Carelessly and negligently operating his vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (o) Failing to properly operate his vehicle under the circumstances then and there existing; (p) Failing to look in the direction of traffic; and (q) Causing a multi-vehicle collision on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; 12. Defendant is liable as a matter of law because Defendant's violations of the Commonwealth of Pennsylvania's Motor Vehicle Code proximately caused Plaintiff's aforementioned injuries. 13. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff suffered multiple severe and permanent traumatic injuries to his back, neck, and chest, including but not limited to herniated discs at C5-6 and C6-7, pain radiating into his clavicle, discomfort in chest and ribcage, and chronic myofacial neck pain. 14. Plaintiff's injuries are serious, severe, and permanent and are the direct and proximate result of the accident in question. 15. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff was required to undergo medical treatment, testing, MRls, x-rays, physical therapy, massage therapy, and other medical treatment. 16. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff continues to require medical attention and treatment and in the future will continue to require medical attention for his injuries. 17. As a result of the aforesaid injuries, Plaintiff has been unable to follow his usual family, social, and recreational activities and in the future will be unable to follow such activities, thereby impairing his enjoyment of life. 18. Since the date of this accident, specifically, November 3, 2005, Plaintiff has missed work for various medical appointments. 19. As a result of this accident, Plaintiff has suffered an impairment of his earning capacity and power. 20. As a direct and reasonable result of the injuries suffered in the accident caused by the negligence of the Defendant, Plaintiff has and will hereinafter incur additional financial losses or expenses which do or may exceed amounts which he may otherwise be entitled to recover, which includes a medical lien for medical bills paid by his workers' compensation insurance company, SRS. WHEREFORE, Plaintiff demands judgment against the Defendant, Estate of Clyde D. Zeigler, for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; for past, present, and future loss of earnings and earning capacity; and for any other losses arising from his injuries in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. COUNT II-PETER VACCARO, III vs ESTATE OF SARA ZEIGLER--NEGLIGENCE 21. Paragraphs 1 through 20 of this Complaint are incorporated as if the same were set forth herein at length. 22. At the time and place aforesaid, the negligence and carelessness of the Defendant, Estate of Sara Zeigler, consisted of the following: (a) In failing to supervise how Defendant Clyde D. Zeigler used said automobile; (b) In permitting Clyde D. Zeigler to use her vehicle; and (c) In negligently entrusting her vehicle to Defendant Clyde D. Zeigler. 24. The negligence of Defendant, Sara Zeigler, was a substantial factor and was the proximate cause in bringing about the damage ultimately suffered by Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant, Estate of Sara Zeigler for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; and for any other losses arising from his injuries in an amount not in excess of fifty thousand dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. Respectfully submitted, /YP -- ichael D. Dautrich, Esquire Attorney for Plaintiff VERIFICATION I verify that the statements made herein are true and correct to the best of my knowledge. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Peter V accaro, III Dated: MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff VS. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM PROOF OF SERVICE I, Jessica Delp, being duly sworn according to law, deposes and says that she served a true and correct copy of an Complaint upon the following by United States First Class Mail on or about 1i r , 2009. Estate of Clyde D. Zeigler c/o Kevin D. Rauch, Esquire 1017 Mumma Road, Lemoyne, PA 17043 Estate of Sara Zeigler c/o Nancy Dellinger, Administrator 10 Meade Drive Carlisle PA 17013 This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Jessica Delp, Legal cretary to Michael D. Dautrich, Esquire Dautrich & Dautrich Law Offices OF THE A,,Ry 2009 MAY -8 PH 12: a+ ;. , Uvl? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, CIVIL DIVISION Plaintiff, NO. 07-6633 v. PRELIMINARY OBJECTIONS ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, (Jury Trial Demanded) Defendants. Filed on Behalf of the Defendants Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Ethan K. Stone, Esquire Pa. I.D. #205458 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16359 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, CIVIL DIVISION Plaintiff, V. NO. 07-6633 ESTATE OF CLYDE D. ZEIGLER and (Jury Trial Demanded) ESTATE OF SARA ZEIGLER, Defendants. PRELIMINARY OBJECTIONS AND NOW, comes the Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, by and through their counsel, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P., and files the following Preliminary Objections to Plaintiff's Complaint: 1. STATEMENT OF FACTS 1. This case arises out of a motor vehicle accident that occurred on November 3, 2005. 2. On that date, Clyde Zeigler was operating a motor vehicle which collided with a vehicle operated by Tony Simonetta in which the Plaintiff was a passenger. 3. Sara Zeigler was a passenger in the vehicle operated by Clyde Zeigler. 4. Suit was initiated by Writ of Summons against the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler on October 31, 2007. 5. The Estate of Sara Zeigler was established on November 23, 2005, and the Estate of Clyde D. Zeigler was established on November 7, 2008. 6. A Complaint was filed on May 8, 2009, against the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler, alleging personal injury. 7. The statute of limitations in this matter ran on November 3, 2007. 8. It is averred that suit against the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler is improper as the personal representatives were not named as parties and therefore the suit is a nullity. II. PRELIMINARY OBJECTION IN NATURE OF A DEMURRER 9. Preliminary Objections may be filed by any party to any pleading for legal insufficiency of the pleading. See Pa.R.C.P. 1028(a)(4). 10. All actions that survive a decedent must be brought by or against a personal representative. Nelson v. Estate of Massey, 686 A.2d 1350, 1351 (Pa. Super. 1996) (citin Finn v. Dugan, 394 A.2d 595, 596 (Pa. Super. 1978)). 11. It is clear under Pennsylvania law that the estate of a decedent is not a proper party defendant. See Nelson v. Estate of Massey, 686 A.2d 1350 (Pa. Supra. 1996) (Superior Court upheld trial court's grant of preliminary objections and dismissal of complaint because an action cannot be maintained against an estate). See also 20 Pa.C.S. §3373 (An action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive). 12. As such, suit in this matter should have been brought against the personal representatives of the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler. 13. As suit was brought against the Estates and not the personal representatives, the pleading is legally insufficient. 14. Further, even where an estate has not been raised and no personal representative appointed, the plaintiffs remedy is to secure the appointment of a personal representative by applying to the Register of Wills for the issuance of letters testamentary or letters of administration prior to the running of the statute of limitations. Nelson v. Estate of Massey, 686 A.2d 1350, 1351 (Pa. Super. 1996). 15. Where the plaintiff fails to have the personal representative of an estate appointed in a timely manner, he cannot amend the complaint to later name the administrator since the statute of limitations has run. Nelson v. Estate of Massey, 686 A.2d 1350, 1351 (Pa. Super. 1996). 16. In the present case, the Plaintiff not only failed to name the personal representatives of the Estates, he failed to have a representative appointed to the Estate of Clyde D. Zeigler prior to the running of the statute of limitations. 17. As the statute of limitations has run, it is improper to allow the substitution of a party. 18. As such, the Complaint in this matter should be dismissed with prejudice. WHEREFORE, Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, respectfully request this Honorable Court sustain their Preliminary Objections and dismiss the Complaint in its entirety, with prejudice. III. PRELIMINARY OBJECTION FOR FAILURE TO JOIN NECESSARY OR INDISPENSABLE PARTIES 19. The Rules of Civil Procedure provide that whenever it appears by suggestion of the parties or otherwise that there has been a failure to join an indispensable party, the court shall order that the indispensable party be joined, but if that is not possible, then it shall dismiss the action. Pa.R.C.P., Rule 1032 (b). 20. According to 20 Pa.C.S. §3373, an action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive. 21. It is clear under Pennsylvania law that the estate of a decedent is not a proper party defendant. (See Nelson v. Estate of Massey, 686 A.2d 1350 (Pa. Supra. 1996) (Superior Court upheld trial court's grant of preliminary objections and dismissal of complaint because an action cannot be maintained against an estate). 22. As such, the personal representatives of the Estate of Sara Zeigler and the Estate of Clyde D. Zeigler are necessary and indispensable parties to this case. 23. Suit in this matter was initiated against the Estate of Sara Zeigler and the Estate of Clyde D. Zeigler alone. 24. No claims were brought against the personal representatives of the Estates. 25. As the statute of limitations ran on November 3, 2007, it is improper to allow the substitution of a party. 26. As the necessary parties, the personal representatives of the Estate of Sara Zeigler and Estate of Clyde D. Zeigler, have not been joined in this matter, and the statute of limitations has passed, the Complaint should be dismissed with prejudice. WHEREFORE, Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, respectfully request this Honorable Court sustain their Preliminary Objections and dismiss the Complaint in its entirety, with prejudice. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: Kevin D. Rauch, Esquire Counsel for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 31St day of July, 2009. Michael D. Dautrich, Esquire Dautrich & Dautrich 526 Court Street Reading, PA 19601 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: Kevin D. Rauch, Esquire Counsel for Defendants 29 -? j-i 12. I 3 C!j: i '?" PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ---------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) PE7-irg1 vACQ-0? 'j,.rr, V-: 1P VS. an? ESTP+TG t?F Sp?R ZE'1??GF UEF?NOgNrS No. Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): 2. Identify all counsel who will argue cases: (a) for plaintiffs: v S?rnrnec's ? 1`?c?cnnel\ (b) for defendants: i c`cl (Name PA 1 -7pSS- 19L01 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: 8a/-,09 Signature '-" -\ ,N hko N Print your name Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. ff argument is continued now briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. (Name and CA /AL 2009 AUG MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY NO. 07-6633 CIVIL TERM JURY TRIAL DEMANDED DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants NOTICE TO DEFEND 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 is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claims in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER'S REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEFORD ST. CARLISLE PA 17013 TELEPHONE NO. (717) 249-3166 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants NO. 07-6633 CIVIL TERM JURY TRIAL DEMANDED AMENDED COMPLAINT 1. The amount in controversy is in excess of $50,000.00. 2. The Plaintiff, Peter Vaccaro, III, is an adult individual currently residing at 264 Sand Hill Road, Fleetwood, Berks County, Pennsylvania. 3. The Defendant, David S. Sobotka, Esquire, Administrator of the Estate of Clyde D. Zeigler, has a business address of 519 Walnut St., Reading, Berks County, Pennsylvania. 4. The Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler, has a mailing address of 10 Meade Drive, Carlisle, PA 17013. 5. On November 3, 2005, at approximately 11:13 a.m., Plaintiff, Peter Vaccaro, III was a passenger in an automobile owned by Tony Simonetta. On that day and time, a vehicle operated by Clyde D. Ziegler, deceased, was traveling Westbound on State Route 114 approaching the intersection of Willow Mill Park Road in Silver Spring Township, Cumberland County, Pennsylvania at which time the Zeigler vehicle caused a multi-car accident when it turned in front of another vehicle traveling Eastbound on State Route 114 and was struck causing the Zeigler vehicle to go across a grass barrier and strike two other vehicles, one of which was the Simonetta vehicle in which Plaintiff was a passenger. The Zeigler vehicle struck Simonetta's vehicle head on while Simonetta's vehicle was Eastbound on Route 114 in the right lane of travel. 6. The force of the accident was so great that Plaintiff was thrown about inside the Simonetta vehicle. 7. Shortly after the accident, Plaintiff was transported to the Holy Spirit Hospital via ambulance where he was treated for multiple traumatic injuries to his back, neck, and body due to the accident. 8. At the time and place aforesaid, Clyde D. Zeigler so negligently and carelessly operated his vehicle such that he caused a violent collision with the Simonetta vehicle. 9. The aforesaid vehicle collision was caused by the carelessness and negligence of Clyde D. Zeigler who failed to keep his vehicle under proper and adequate control as a reasonable and prudent person would do under the circumstances. COUNT I-PETER VACCARO III vs DAVID S SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER--NEGLIGENCE 10. Paragraphs 1 through 9 of this Complaint are incorporated herein by reference as if set forth herein at length. 11. At the time and place aforesaid, the negligence and carelessness of this Defendant, consisted of the following: (a) Failing to keep the vehicle he was operating under proper and adequate control to avoid the Simonetta vehicle as it was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (b) Failing to drive at a safe speed; (c) Operating his vehicle in a dangerous and careless fashion, directly towards the place where the Simonetta vehicle was then situated, thereby violently colliding and striking the Simonetta vehicle which was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (d) Failing to use due care under the circumstances then and there existing; (e) Failing and neglecting to have the vehicle he was operating under proper and adequate control so as to be able to stop prior to the collision; (f) Failing to apply his brakes or take evasive action so as to avoid causing the collision with the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania where the Simonetta vehicle was there to be seen by a prudent driver; (g) Operating his vehicle in a careless disregard of the rights and safety of Plaintiff and in such a manner as to endanger Plaintiff's person; (h) Negligently failing to exercise reasonable care to discover the peril and eminent danger to Plaintiff; (i) Negligently failing, after perceiving and knowing of the danger to Plaintiff, or after he could, by the exercise of due care and caution, have known and perceived as perilous the situation to do anything to prevent the collision between his vehicle and the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania either by applying his brakes and stopping the vehicle or turning away from the Simonetta vehicle or otherwise taking evasive action; 0) Failing to slow his vehicle down or to bring it to a complete halt to avoid the collision with the Simonetta vehicle; (k) Failing to keep a vigilant outlook for vehicles upon the roadway where Defendant was driving when it was reasonably foreseeable that other vehicles would be encountered; (1) Failing to sound a horn or otherwise warn of the approach of his vehicle for the protection of Plaintiff on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (m) Failing to maintain a proper outlook and failing to exercise ordinary care towards Plaintiff, who he could or should have seen in a position of peril because Defendant had the last clear chance to avoid the collision with the Simonetta vehicle by the exercise of ordinary care; (n) Carelessly and negligently operating his vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (o) Failing to properly operate his vehicle under the circumstances then and there existing; (p) Failing to look in the direction of traffic; and (q) Causing a multi-vehicle collision on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; 12. Defendant is liable as a matter of law because Defendant's violations of the Commonwealth of Pennsylvania's Motor Vehicle Code proximately caused Plaintiffs aforementioned injuries. 13. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff suffered multiple severe and permanent traumatic injuries to his back, neck, and chest, including but not limited to herniated discs at C5-6 and C6-7, pain radiating into his clavicle, discomfort in chest and ribcage, and chronic myofacial neck pain. 14. Plaintiff's injuries are serious, severe, and permanent and are the direct and proximate result of the accident in question. 15. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff was required to undergo medical treatment, testing, MRIs, x-rays, physical therapy, massage therapy, and other medical treatment. 16. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff continues to require medical attention and treatment and in the future will continue to require medical attention for his injuries. 17. As a result of the aforesaid injuries, Plaintiff has been unable to follow his usual family, social, and recreational activities and in the future will be unable to follow such activities, thereby impairing his enjoyment of life. 18. Since the date of this accident, specifically, November 3, 2005, Plaintiff has missed work for various medical appointments. 19. As a result of this accident, Plaintiff has suffered an impairment of his earning capacity and power. 20. As a direct and reasonable result of the injuries suffered in the accident caused by the negligence of the Defendant, Plaintiff has and will hereinafter incur additional financial losses or expenses which do or may exceed amounts which he may otherwise be entitled to recover, which includes a medical lien for medical bills paid by his workers' compensation insurance company, SRS. WHEREFORE, Plaintiff demands judgment against the Defendant, David S. Sobotka, Esquire, Administrator of the Estate of Clyde D. Zeigler, for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; for past, present, and future loss of earnings and earning capacity; and for any other losses arising from his injuries in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. COUNT II-PETER VACCARO, III vs. NANCY DELLINGER, ADMINISTRATOR OF THE ESTATE OF SARA ZEIGLER--NEGLIGENCE 21. Paragraphs 1 through 20 of this Complaint are incorporated as if the same were set forth herein at length. 22. At the time and place aforesaid, the negligence and carelessness of this Defendant, consisted of the following: (a) In failing to supervise how Clyde D. Zeigler used said automobile; (b) In permitting Clyde D. Zeigler to use her vehicle; and (c) In negligently entrusting her vehicle to Clyde D. Zeigler. 24. The negligence of Defendant was a substantial factor and was the proximate cause in bringing about the damage ultimately suffered by Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; and for any other losses arising from his injuries in an amount not in excess of fifty thousand dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. submitted, Z---? Michael D. Dautrich, Esquire Attorney for Plaintiff VERIFICATION I verify that the statements made herein are true and correct to the best of my knowledge. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Peter Vaccaro, III Dated: ? - I Y--D 9 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW VS. NO. 07-6633 CIVIL TERM DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY JURY TRIAL DEMANDED DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants PROOF OF SERVICE I, Jessica Delp, being duly sworn according to law, deposes and says that she served a true and correct copy of Plaintiff's Amended Complaint upon the following by United States First Class Mail on or about August 19, 2009. Kevin D. Rauch, Esquire 100 Sterling Parkway Mechanicsburg, PA 17050 Attorney for the Defendants This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. %-L? 6& Jessica Delp, Legal Secre ary to Michael D. Dautrich, Esquire Dautrich & Dautrich Law Offices FIEi?:lf;: CE OF THE P:ROTH?IOTARY 2009 AUG 20 AM 10.: 54 TY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, Plaintiff, CIVIL DIVISION NO. 07-6633 V. ESTATE OF CLYDE D. ZEIGLER ESTATE OF SARA ZEIGLER, Defendants. PRAECIPE TO REMOVE FROM and ARGUMENT LIST (Jury Trial Demanded) Filed on Behalf of the Defendants Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Ethan K. Stone, Esquire Pa. I.D. #205458 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16359 I 'V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, CIVIL DIVISION Plaintiff, V. NO. 07-6633 ESTATE OF CLYDE D. ZEIGLER and (Jury Trial Demanded) ESTATE OF SARA ZEIGLER, Defendants. PRAECIPE TO REMOVE FROM ARGUMENT LIST TO: PROTHONOTARY Kindly remove Defendant's Preliminary Objections from the Argument List on September 9, 2009, in the above-referenced matter. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: evin . t7lkSucY, Es re Counsel for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE TO REMOVE FROM ARGUMENT LIST has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 1St day of September, 2009. Michael D. Dautrich, Esquire Dautrich & Dautrich 526 Court Street Reading, PA 19601 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: L\-) Kevin D. Rau E'sire Counsel for Defendants CAI AL Tm MARY 2009 SEA' --2 PH 1: 52 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) vs. Estee a? G??e ?. Ze???e? Cq\d Ze 51 eC No. Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): ? DC?2hdGC1?S ?f2?irnrM?n. t?b?2C?2?c?S +, Q ain? 2. Identify all counsel who will argue cases: (a) for plaintiffs: (Name and Address) 5-2-(o Co,c QA i%ol (b) for defendants: (C)C> Gk2r \; n (Name and SV e 3C-Xo 3. 1 will notify all parties in writing within two days that this case has been listed for argument. A Arne imcnf r ni irf nnfa- Date: -i 121cq GA ? K•S?av? Print your name bees Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Amer, ,-a (OM?a4 3PA (70?Y ,CA/AL RLEC1 OF THF PP iT'PrWT)TARY 2009 SEP - 3 PH 1: 0 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, Plaintiff, V. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants. CIVIL DIVISION NO. 07-6633 PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT (Jury Trial Demanded) Filed on Behalf of the Defendants Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Ethan K. Stone, Esquire Pa. I.D. #205458 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16359 ! L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, Plaintiff, CIVIL DIVISION V. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants. NO. 07-6633 (Jury Trial Demanded) PRELIMINARY OBJECTIONS AND NOW, comes the Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, by and through their counsel, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C., and files the following Preliminary Objections to Plaintiff's Amended Complaint: 1. STATEMENT OF FACTS 1. This case arises out of a motor vehicle accident that occurred on November 3, 2005. 2. On that date, Clyde Zeigler was operating a motor vehicle which collided with a vehicle operated by Tony Simonetta in which the Plaintiff was a passenger. 3. Sara Zeigler, was a co-owner and a passenger in the vehicle operated and co-owned by Clyde Zeigler. 4. As a result of the motor vehicle accident, both Sara Zeigler and Clyde Zeigler passed away. r t 5. Suit was initiated by Writ of Summons against the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler on October 31, 2007. 6. The Estate of Sara Zeigler was established on November 23, 2005, and the Estate of Clyde D. Zeigler was established on November 7, 2008. 7. A Complaint was filed on May 8, 2009, against the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler, alleging personal injury. (See Complaint attached hereto as Exhibit "A") 8. The statute of limitations in this matter ran on November 3, 2007. 9. On August 3, 2009, Defendants filed Preliminary Objections to Plaintiff's Complaint, averring that suit against the Estate Clyde D. Zeigler and the Estate of Sara Zeigler was improper as the personal representatives were not named parties. 10. Defendants argued in their Preliminary Objections that the filing of an amended complaint in this matter, substituting the personal representatives for the estates, was improper as the substitution of new parties nearly two years after the running of the statute of limitations was untimely. 11. On August 20, 2009, Plaintiff filed an Amended Complaint with the Court. (See Amended Complaint attached hereto as Exhibit "B") 12. Plaintiff's Amended Complaint was filed against David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administratrix of the Estate of Sara Zeigler. 13. Service of the Amended Complaint was made on counsel for the Estate of Clyde D. Zeigler and Estate of Sara Zeigler, but no service of the Amended Complaint 2 was made on David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administratrix of the Estate of Sara Zeigler. 14. It is averred that the initial Complaint against the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler was improper as the personal representatives were not named as parties, and that the subsequent filing of an Amended Complaint against David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administrator of the Estate of Sara Zeigler is improper as they are now being joined after the running of the statute of limitations and without leave of court. 14. It is further averred that service in this matter against David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administrator of the Estate of Sara Zeigler was improper and is untimely. II. PRELIMINARY OBJECTION IN NATURE OF A DEMURRER 15. Preliminary Objections may be filed by any party to any pleading for legal insufficiency of the pleading. See Pa.R.C.P. 1028(a)(4). 16. All actions that survive a decedent must be brought by or against a personal representative. Nelson v. Estate of Massey, 686 A.2d 1350, 1351 (Pa. Super. 1996) (citing Finn v. Dugan, 394 A.2d 595, 596 (Pa. Super. 1978)). 17. It is clear under Pennsylvania law that the estate of a decedent is not a proper party defendant. See Nelson v. Estate of Massey, 686 A.2d 1350 (Pa. Supra. 1996) (Superior Court upheld trial court's grant of preliminary objections and dismissal of complaint because an action cannot be maintained against an estate). See also 20 Pa.C.S. §3373 (An action or proceeding to enforce any right or liability which survives a F I decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive). 18. As such, suit in this matter should have initially been brought against the personal representatives of the Estate of Clyde D. Zeigler and the Estate of Sara Zeigler. 19. As suit was initially brought against the Estates and not the personal representatives, the Complaint was legally insufficient. 20. Further, even where an estate has not been raised and no personal representative appointed, the plaintiffs remedy is to secure the appointment of a personal representative by applying to the Register of Wills for the issuance of letters testamentary or letters of administration prior to the running of the statute of limitations. Nelson v. Estate of Massey, 686 A.2d 1350, 1351 (Pa. Super. 1996). 21. Where the plaintiff fails to have the personal representative of an estate appointed in a timely manner, he cannot amend the complaint to later name the administrator since the statute of limitations has run. Nelson v. Estate of Massey, 686 A.2d 1350, 1351 (Pa. Super. 1996). 22. In the present case, the Plaintiff failed to name the personal representatives of the Estates, failed to have a representative appointed to the Estate of Clyde D. Zeigler prior to the running of the statute of limitations, and has now improperly attempted to amend the Complaint to substitute a party and name the administrators of the Estates long after the running of the statute of limitations. 23. Pursuant to Nelson, the filing of the Plaintiffs Amended Complaint naming the personal representatives nearly two years after the statute of limitations has run is improper. 24 As such, the Amended Complaint in this matter should be stricken and this case dismissed with prejudice. WHEREFORE, Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, respectfully request this Honorable Court sustain their Preliminary Objections to Plaintiffs Amended Complaint, strike the Amended Complaint and dismiss this case in its entirety, with prejudice. III. PRELIMINARY OBJECTION FOR FAILURE TO JOIN NECESSARY OR INDISPENSABLE PARTIES 25. The Rules of Civil Procedure provide that whenever it appears by suggestion of the parties or otherwise that there has been a failure to join an indispensable party, the court shall order that the indispensable party be joined, but if that is not possible, then it shall dismiss the action. Pa.R.C.P., Rule 1032 (b). 26. According to 20 Pa.C.S. §3373, an action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive. 27. It is clear under Pennsylvania law that the estate of a decedent is not a proper party defendant. (See Nelson v. Estate of Massey, 686 A.2d 1350 (Pa. Supra. 1996) (Superior Court upheld trial court's grant of preliminary objections and dismissal of complaint because an action cannot be maintained against an estate). 28. As such, the personal representatives of the Estate of Sara Zeigler and the Estate of Clyde D. Zeigler were necessary and indispensable parties to this case when the Writ of Summons was filed on October 31, 2007, and when the Statute of Limitations ran on November 3, 2007. 29. Suit in this matter was initiated against the Estate of Sara Zeigler and the Estate of Clyde D. Zeigler alone, and the personal representatives were not named as parties. 30. No claims were brought against the personal representatives of the Estates, until the Plaintiff filed his Amended Complaint on August 20, 2009, substituting the personal representatives as parties in this matter, nearly two years after the running of the Statute of Limitations. 31. As the statute of limitations ran on November 3, 2007, it is improper to allow the substitution of a party. 32. As the necessary parties, the personal representatives of the Estate of Sara Zeigler and Estate of Clyde D. Zeigler, were not joined in this matter for nearly two years after the running of the statute of limitations had passed, the Amended Complaint should be stricken and this case dismissed in its entirety, with prejudice. WHEREFORE, Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, respectfully request this Honorable Court sustain their Preliminary Objections to Plaintiffs Amended Complaint, strike the Amended Complaint and dismiss this case in its entirety, with prejudice. IV. PRELIMINARY OBJECTION FOR IMPROPER SERVICE OF PROCESS 33. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1), Preliminary Objections may be filed to any pleading on the basis of improper service of a writ of summons or complaint. 34. Pursuant to Pennsylvania Rule of Civil Procedure 400, service of process shall be served within the Commonwealth only by the Sheriff. 35. The Plaintiffs Amended Complaint, filed against new parties, David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administrator of the Estate of Sara Zeigler was sent by mail to Kevin D. Rauch, Esquire, Counsel for Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, on August 19, 2009. 36. To date, service of the Amended Complaint has not been made on the new parties, David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administrator of the Estate of Sara Zeigler. 37. As such, pursuant to Rule 400, service of the Amended Complaint on Counsel for Defendants and not on David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler, and Nancy Dellinger, Administrator of the Estate of Sara Zeigler was improper and untimely. WHEREFORE, Defendants, Estate of Clyde D. Zeigler and Estate of Sara Zeigler, respectfully request this Honorable Court sustain their Preliminary Objections to Plaintiff's Amended Complaint, strike the Amended Complaint and dismiss this case in its entirety, with prejudice. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: Kevin D. Rauch, Esqu Counsel for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, Plaintiff, CIVIL DIVISION V. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants. NO. 07-6633 (Jury Trial Demanded) ORDER AND NOW, this day of , 2009, it is hereby ORDERED, ADJUDGED, AND DECREED that the Preliminary Objections to Plaintiff's Amended Complaint are sustained. Plaintiffs Amended Complaint is hereby stricken and this case is dismissed in its entirety, with prejudice. BY THE COURT: J. Distribution List: Michael D. Dautrich, Esquire Dautrich & Dautrich 526 Court Street Reading, PA 19601 Attorney for Plaintiff Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 (Attorney for Defendants) Q _TJ _ r T ? !,,> _Z7 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 1%01 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff vs. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM NOTICE TO DEFEND 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 is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claims in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER'S REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEFORD ST. CARLISLE PA 17013 TELEPHONE NO. (717) 249-3166 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff vs. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM COMPLAINT 1. The amount in controversy is in excess of $50,000.00. 2. The Plaintiff, Peter Vaccaro, III, is an adult individual currently residing at 264 Sand Hill Road, Fleetwood, Berks County, Pennsylvania. 3. The Defendant, Estate of Clyde D. Zeigler is represented by its Administrator, who is David S. Sobotka, Esquire with a business address of 519 Walnut St., Reading, Berks County, Pennsylvania. 4. The Defendant, Estate of Sara Zeigler, is an estate that was probated in the County of Cumberland, whose administrator is Nancy Dellinger with a mailing address of 10 Meade Drive, Carlisle, PA 17013. 5. On November 3, 2005, at approximately 11:13 a.m., Plaintiff, Peter Vaccaro, III was a passenger in an automobile owned by Tony Simonetta. On that day and time, a vehicle operated by Clyde D. Ziegler, deceased, was traveling Westbound on State Route 114 approaching the intersection of Willow Mill Park Road in Silver Spring Township, Cumberland County, Pennsylvania at which time the Zeigler vehicle caused a multi-car accident when it turned in front of another vehicle traveling Eastbound on State Route 114 and was struck causing the Zeigler vehicle to go across a grass barrier and strike two other vehicles, one of which was the Simonetta vehicle in which Plaintiff was a passenger. The Zeigler vehicle struck Simonetta's vehicle head on while Simonetta's vehicle was Eastbound on Route 114 in the right lane of travel. 6. The force of the accident was so great that Plaintiff was thrown about inside the Simonetta vehicle. 7. Shortly after the accident, Plaintiff was transported to the Holy Spirit Hospital via ambulance where he was treated for multiple traumatic injuries to his back, neck, and body due to the accident. At the time and place aforesaid, Clyde D. Zeigler so negligently and carelessly operated his vehicle such that he caused a violent collision with the Simonetta vehicle. 9. The aforesaid vehicle collision was caused by the carelessness and negligence of Clyde D. Zeigler who failed to keep his vehicle under proper and adequate control as a reasonable and prudent person would do under the circumstances. COUNT I-PETER VACCARO, III vs ESTATE OF CLYDE D ZEIGLER--NEGLIGENCE 10. Paragraphs 1 through 9 of this Complaint are incorporated herein by reference as if set forth herein at length. 11. At the time and place aforesaid, the negligence and carelessness of the Defendant, Clyde D. Zeigler, consisted of the following: (a) Failing to keep the vehicle he was operating under proper and adequate control to avoid the Simonetta vehicle as it was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (b) Failing to drive at a safe speed; (c) Operating his vehicle in a dangerous and careless fashion, directly towards the place where the Simonetta vehicle was then situated, thereby violently colliding and striking the Simonetta vehicle which was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (d) Failing to use due care under the circumstances then and there existing; (e) Failing and neglecting to have the vehicle he was operating under proper and adequate control so as to be able to stop prior to the collision; (f) Failing to apply his brakes or take evasive action so as to avoid causing the collision with the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania where the Simonetta vehicle was there to be seen by a prudent driver; (g) Operating his vehicle in a careless disregard of the rights and safety of Plaintiff and in such a manner as to endanger Plaintiffs person; (h) Negligently failing to exercise reasonable care to discover the peril and eminent danger to Plaintiff; (i) Negligently failing, after perceiving and knowing of the danger to Plaintiff, or after he could, by the exercise of due care and caution, have known and perceived as perilous the situation to do anything to prevent the collision between his vehicle and the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania either by applying his brakes and stopping the vehicle or turning away from the Simonetta vehicle or otherwise taking evasive action; 0) Failing to slow his vehicle down or to bring it to a complete halt to avoid the collision with the Simonetta vehicle; (k) Failing to keep a vigilant outlook for vehicles upon the roadway where Defendant was driving when it was reasonably foreseeable that other vehicles would be encountered; (1) Failing to sound a horn or otherwise warn of the approach of his vehicle for the protection of Plaintiff on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (m) Failing to maintain a proper outlook and failing to exercise ordinary care towards Plaintiff, who he could or should have seen in a position of peril because Defendant had the last clear chance to avoid the collision with the Simonetta vehicle by the exercise of ordinary care; (n) Carelessly and negligently operating his vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (o) Failing to properly operate his vehicle under the circumstances then and there existing; (p) Failing to look in the direction of traffic; and (q) Causing a multi-vehicle collision on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; 12. Defendant is liable as a matter of law because Defendant's violations of the Commonwealth of Pennsylvania's Motor Vehicle Code proximately caused Plaintiffs aforementioned injuries. 13. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff suffered multiple severe and permanent traumatic injuries to his back, neck, and chest, including but not limited to herniated discs at C5-6 and C6-7, pain radiating into his clavicle, discomfort in chest and ribcage, and chronic myofacial neck pain. 14. Plaintiff's injuries are serious, severe, and permanent and are the direct and proximate result of the accident in question. 15. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff was required to undergo medical treatment, testing, MRIs, x-rays, physical therapy, massage therapy, and other medical treatment. 16. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff continues to require medical attention and treatment and in the future will continue to require medical attention for his injuries. 17. As a result of the aforesaid injuries, Plaintiff has been unable to follow his usual family, social, and recreational activities and in the future will be unable to follow such activities, thereby impairing his enjoyment of life. 18. Since the date of this accident, specifically, November 3, 2005, Plaintiff has missed work for various medical appointments. 19. As a result of this accident, Plaintiff has suffered an impairment of his earning capacity and power. 20. As a direct and reasonable result of the injuries suffered in the accident caused by the negligence of the Defendant, Plaintiff has and will hereinafter incur additional financial losses or expenses which do or may exceed amounts which he may otherwise be entitled to recover, which includes a medical lien for medical bills paid by his workers' compensation insurance company, SRS. WIEREFORE, Plaintiff demands judgment against the Defendant, Estate of Clyde D. Zeigler, for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; for past, present, and future loss of earnings and earning capacity; and for any other losses arising from his injuries in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. COUNT II PETER VACCARO, III vs ESTATE OF SARA ZEIGLER--NEGLIGENCE 21. Paragraphs 1 through 20 of this Complaint are incorporated as if the same were set forth herein at length. 22. At the time and place aforesaid, the negligence and carelessness of the Defendant, Estate of Sara Zeigler, consisted of the following: (a) In failing to supervise how Defendant Clyde D. Zeigler used said automobile; (b) In permitting Clyde D. Zeigler to use her vehicle; and (c) In negligently entrusting her vehicle to Defendant Clyde D. Zeigler. 24. The negligence of Defendant, Sara Zeigler, was a substantial factor and was the proximate cause in bringing about the damage ultimately suffered by Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant, Estate of Sara Zeigler for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; and for any other losses arising from his injuries in an amount not in excess of fifty thousand dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. Respectfully submitted, -c&el D. Dautrich, Esquire Attorney for Plaintiff VERIFICATION I verify that the statements made herein are true and correct to the best of my knowledge. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. Peter Vaccaro, III Dated: r10116 7 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff VS. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM PROOF OF SERVICE I, Jessica Delp, being duly sworn according to law, deposes and says that she served a true and correct copy of an Complaint upon the following by United States First Class Mail on or about ",NA rl , 2009. Estate of Clyde D. Zeigler c/o Kevin D. Rauch, Esquire 1017 Mumma Road, Lemoyne, PA 17043 Estate of Sara Zeigler c/o Nancy Dellinger, Administrator 10 Meade Drive Carlisle PA 17013 This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. rv-Cb Jessica Delp, Legal cretary to Michael D. Dautrich, Esquire Dautrich & Dautrich Law Offices 1KICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY NO. 07-6633 CIVIL TERM JURY TRIAL DEMANDED DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants NOTICE TO DEFEND 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 is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claims in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER'S REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEFORD ST. CARLISLE PA 17013 TELEPHONE NO. (717) 249-3166 r MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants JURY TRIAL DEMANDED AMENDED COMPLAINT 1. The amount in controversy is in excess of $50,000.00. 2. The Plaintiff, Peter Vaccaro, III, is an adult individual currently residing at 264 Sand Hill Road, Fleetwood, Berks County, Pennsylvania. 3. The Defendant, David S. Sobotka, Esquire, Administrator of the Estate of Clyde D. Zeigler, has a business address of 519 Walnut St., Reading, Berks County, Pennsylvania. 4. The Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler, has a mailing address of 10 Meade Drive, Carlisle, PA 17013. 5. On November 3, 2005, at approximately 11:13 a.m., Plaintiff, Peter Vaccaro, III was a passenger in an automobile owned by Tony Simonetta. On that day and time, a vehicle operated by Clyde D. Ziegler, deceased, was traveling Westbound on State Route 114 approaching the intersection of Willow Mill Park Road in Silver Spring Township, Cumberland County, Pennsylvania at which time the Zeigler vehicle caused a multi-car accident when it turned in front of another vehicle traveling Eastbound on State Route 114 and was struck causing the Zeigler vehicle to go across a grass barrier and strike two other vehicles, one of which was the Simonetta vehicle in which Plaintiff was a passenger. The Zeigler vehicle struck Simonetta's vehicle head on while Simonetta's vehicle was Eastbound on Route 114 in the right lane of travel. 6. The force of the accident was so great that Plaintiff was thrown about inside the Simonetta vehicle. 7. Shortly after the accident, Plaintiff was transported to the Holy Spirit Hospital via ambulance where he was treated for multiple traumatic injuries to his back, neck, and body due to the accident. 8. At the time and place aforesaid, Clyde D. Zeigler so negligently and carelessly operated his vehicle such that he caused a violent collision with the Simonetta vehicle. 9. The aforesaid vehicle collision was caused by the carelessness and negligence of Clyde D. Zeigler who failed to keep his vehicle under proper and adequate control as a reasonable and prudent person would do under the circumstances. COUNT I-PETER VACCARO, III vs. DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER--NEGLIGENCE 10. Paragraphs 1 through 9 of this Complaint are incorporated herein by reference as if set forth herein at length. 11. At the time and place aforesaid, the negligence and carelessness of this Defendant, consisted of the following: (a) Failing to keep the vehicle he was operating under proper and adequate control to avoid the Simonetta vehicle as it was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (b) Failing to drive at a safe speed; (c) Operating his vehicle in a dangerous and careless fashion, directly towards the place where the Simonetta vehicle was then situated, thereby violently colliding and striking the Simonetta vehicle which was lawfully traveling on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (d) Failing to use due care under the circumstances then and there existing; (e) Failing and neglecting to have the vehicle he was operating under proper and adequate control so as to be able to stop prior to the collision; (f) Failing to apply his brakes or take evasive action so as to avoid causing the collision with the Simonetta vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania where the Simonetta vehicle was there to be seen by a prudent driver; (g) Operating his vehicle in a careless disregard of the rights and safety of Plaintiff and in such a manner as to endanger Plaintiffs person; (h) Negligently failing to exercise reasonable care to discover the peril and eminent danger to Plaintiff; (i) Negligently failing, after perceiving and knowing of the danger to Plaintiff, or after he could, by the exercise of due care and caution, have known and perceived as perilous the situation to do anything to prevent the collision between his vehicle and the Simonetta vehicle on Route 114 in Silver , 4 1 . Spring Township, Cumberland County, Pennsylvania either by applying his brakes and stopping the vehicle or turning away from the Simonetta vehicle or otherwise taking evasive action; 0) Failing to slow his vehicle down or to bring it to a complete halt to avoid the collision with the Simonetta vehicle; (k) Failing to keep a vigilant outlook for vehicles upon the roadway where Defendant was driving when it was reasonably foreseeable that other vehicles would be encountered; (1) Failing to sound a horn or otherwise warn of the approach of his vehicle for the protection of Plaintiff on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (m) Failing to maintain a proper outlook and failing to exercise ordinary care towards Plaintiff, who he could or should have seen in a position of peril because Defendant had the last clear chance to avoid the collision with the Simonetta vehicle by the exercise of ordinary care; (n) Carelessly and negligently operating his vehicle on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; (o) Failing to properly operate his vehicle under the circumstances then and there existing; (p) Failing to look in the direction of traffic; and (q) Causing a multi-vehicle collision on a public roadway, to wit, Route 114 in Silver Spring Township, Cumberland County, Pennsylvania; 12. Defendant is liable as a matter of law because Defendant's violations of the Commonwealth of Pennsylvania's Motor Vehicle Code proximately caused Plaintiffs aforementioned injuries L ( 4 I 13. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff suffered multiple severe and permanent traumatic injuries to his back, neck, and chest, including but not limited to herniated discs at C5-6 and C6-7, pain radiating into his clavicle, discomfort in chest and ribcage, and chronic myofacial neck pain. 14. Plaintiff's injuries are serious, severe, and permanent and are the direct and proximate result of the accident in question. 15. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff was required to undergo medical treatment, testing, MRIs, x-rays, physical therapy, massage therapy, and other medical treatment. 16. As a result of the aforesaid collision caused by the negligence and careless misconduct of the Defendant, Plaintiff continues to require medical attention and treatment and in the future will continue to require medical attention for his injuries. 17. As a result of the aforesaid injuries, Plaintiff has been unable to follow his usual family, social, and recreational activities and in the future will be unable to follow such activities, thereby impairing his enjoyment of life. 18. Since the date of this accident, specifically, November 3, 2005, Plaintiff has missed work for various medical appointments. 19. As a result of this accident, Plaintiff has suffered an impairment of his earning capacity and power. 20. As a direct and reasonable result of the injuries suffered in the accident caused by the negligence of the Defendant, Plaintiff has and will hereinafter incur additional financial losses or L f I • expenses which do or may exceed amounts which he may otherwise be entitled to recover, which includes a medical lien for medical bills paid by his workers' compensation insurance company, SRS. WHEREFORE, Plaintiff demands judgment against the Defendant, David S. Sobotka, Esquire, Administrator of the Estate of Clyde D. Zeigler, for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; for past, present, and future loss of earnings and earning capacity; and for any other losses arising from his injuries in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. COUNT H- PETER VACCARO III vs. NANCY DELLINGER 'ADMINISTRATOR OF THE ESTATE OF SARA ZEIGLER--NEGLIGENCE 21. Paragraphs 1 through 20 of this Complaint are incorporated as if the same were set forth herein at length. 22. At the time and place aforesaid, the negligence and carelessness of this Defendant, consisted of the following: (a) In failing to supervise how Clyde D. Zeigler used said automobile; (b) In permitting Clyde D. Zeigler to use her vehicle; and (c) In negligently entrusting her vehicle to Clyde D. Zeigler. J. l l • 24. The negligence of Defendant was a substantial factor and was the proximate cause in bringing about the damage ultimately suffered by Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler for such physical pain, mental anguish, discomfort, inconvenience, and distress that he endured from the time of the vehicle collision until the present; for such physical pain, mental anguish, discomfort, inconvenience, and distress that he will endure in the future as a result of his injuries; for such embarrassment and humiliation that he has endured and will continue to endure in the future as a result of his injuries; for past, present, and future loss of his ability to enjoy the pleasures of life as a result of his injuries; mental and emotional injuries; for mental and emotional suffering; and for any other losses arising from his injuries in an amount not in excess of fifty thousand dollars ($50,000.00) plus interest and/or delay damages and demands that the Defendants be held jointly and severally liable for all such damages plus court costs. submitted, zl----,.- Michael D. Dautrich, Esquire Attorney for Plaintiff t • VERIFICATION I verify that the statements made herein are true and correct to the best of my knowledge. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Peter Vaccaro, III Dated: ?' ?`? , a o MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 1%01 610-375-9455 Attorney ID: 77187 PETER VACCARO, III IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 07-6633 CIVIL TERM DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY JURY TRIAL DEMANDED DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants PROOF OF SERVICE I, Jessica Delp, being duly sworn according to law, deposes and says that she served a true and correct copy of Plaintiff's Amended Complaint upon the following by United States First Class Mail on or about August 19, 2009. Kevin D. Rauch, Esquire 100 Sterling Parkway Mechanicsburg, PA 17050 Attorney for the Defendants This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Jessica Delp, Legal Secre ary to Michael D. Dautrich, Esquire Dautrich & Dautrich Law Offices .[ 1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 2nd day of September, 2009. Michael D. Dautrich, Esquire Dautrich & Dautrich 526 Court Street Reading, PA 19601 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: LLW ? Kevin D. Rauch, Esquire Counsel for Defendants FILED-,. FFrCE OF THE: € ? ;'n,?t?iARY 2009 SEP -3 Pr 1: 01 pE,Nill; SYLVA; IIA ? Ia. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, Plaintiff, CIVIL DIVISION NO. 07-6633 v. ESTATE OF CLYDE D. ZEIGLER ESTATE OF SARA ZEIGLER, Defendants. PRAECIPE TO REMOVE FROM and ARGUMENT LIST (Jury Trial Demanded) Filed on Behalf of the Defendants Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Ethan K. Stone, Esquire Pa. I.D. #205458 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Park ay, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16359 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, CIVIL DIVISION Plaintiff, V. ESTATE OF CLYDE D. ZEIGLER and ESTATE OF SARA ZEIGLER, Defendants. NO. 07-6633 (Jury Trial Demanded) M TO: PROTHONOTARY Kindly remove Defendant's Preliminary Objections from the Argument List on October 14, 2009, in the above-referenced matter. Respectfully submitted, SUMMERS, McDONNELL, GUTHRIE & SKEEL, P.C. By: Kevin D. Rauch, Esqu Counsel for Defendan CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE TO REMOVE FROM ARGUMENT LIST has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 7th day of October, 2009. Michael D. Dautrich, Esquire Dautrich & Dautrich 526 Court Street Reading, PA 19601 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: L(2 ? az__?S? Kevin D. Rauch, Esquire Counsel for Defendants CA FILED-iJrriCc OF THE P7-1 n"4GTARY 2009 OCT -8 PH 2: 4 9 CJ;,?? .. :??"STY PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Peve<- Ua <cQ(-u vs. 406 LC?-al2 of Scra Ze?12f No. 0 7 -G Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): )Qvcncv?(, -s PceN??0 ?v? a echo?? 1? ?1a 2. Identify all counsel who will argue cases: (a) for plaintiffs: ? S Arnqf-?e)l e-VIV C? No (Name and Address) Recce :,•? PA Ici(oo1 (b) for defendants: E ? A\ : L, 14. S+a 02 (Name and Address) b r) lWrkllel Fn?.L?ri.!r Ytc -Abl/n 1?.1eC?n?LSYJ?rn 1'_` 3. 1 will notify all parties in writing withirf two days that this case has been listed for argument. 4. Argument Court Date: ZS Z cj NlSye?mloQC GdSigns ure Date: 10 /7/09 Print your name Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CA/AL FILED-i: F !CE OF THE 2009OCT -8 PM 2., 49 CUs',r )UN iY PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) PETER VACCARO vs. ESTATE OF CLYDE D. ZEIGLER AND ESTATE OF SARA ZEIGLER 07-6633 No. Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): preliminary objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael D. Dautrich,Esq. (Name and Address) 526 Court Street, Reading, PA 19601 (b) for defendants: Ethan K. Stone, Esq. (Name and Address) 100 Sterling Parkway, Suite 306, Mechanicsburg, PA 17050 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Michael D. Dautrich, Esq. 4. Argument Court Date: November 25, 2009 --;n Pure Michael D. Dautrich, Esquire Print your name Peter Vaccaro October 6, 2009 Attorney for Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Caik, FIU:-D-tYrICE OF TNEE P,-MoTHNOTARY 2009OCT -3 PH 2: 46 r MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 07-6633 CIVIL TERM DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants JURY TRIAL DEMANDED PLAINTIFF'S ANSWERS TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Plaintiff, Peter Vaccaro, III by and through his Attorney, Michael D. Dautrich, Esquire and files the following Answers to Defendants' Preliminary Objections to Plaintiff's Amended Complaint: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that the Estate of Sara Zeigler was established on November 23, 2005. It is specifically denied, however, that the Estate of Clyde D. Zeigler was established November 7, 2008. By way of further answer Clyde D. Zeigler died intestate on November 3, 2005, and his wife, Sara J. Zeigler, died intestate on November 17, 2005. Nancy Dellinger, the only heir, made a decision to only open the estate of Sara J. Zeigler and administer joint assets of husband and wife in that manner. Because Nancy Dellinger chose to open the estate for Sara J. Zeigler and not Clyde D. Zeigler, Plaintiff was required to initiate filing of suit by Writ of Summons and then make application to the Orphan's Court of Cumberland County to have a Citation issued upon Nancy Dellinger as to why she should not formally open the estate of Clyde D. Zeigler and be its administratrix. When she did not respond to the Citation, Plaintiff's counsel sought out a person willing to be the administrator and letters of Administration were granted on November 7, 2008 to the Estate of Clyde D. Zeigler. 7. Admitted. 8. Denied. This averment is a conclusion of law to which no further response is required. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted in part and denied in part. It is admitted that the caption of Plaintiff's Amended Complaint contained David S. Sobotka, the Administrator of the Estate of Clyde D. Zeigler and Nancy Dellinger, Administratrix of the Estate of Sara Zeigler, however, it is specifically denied that those Parties were not specifically named in the original matter. 13. Admitted in part and denied in part. It is admitted that the Amended Complaint was served on counsel but not the individually named administrators. It is specifically denied, however, that it was necessary to serve the individuals rather than counsel. 14. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 14. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 15. Admitted. 16. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 17. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 18. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 19. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 20. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 21. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 22. Denied. It is specifically denied that Plaintiff failed to name the personal representatives of the Estates. It is specifically denied that Plaintiff failed to have a representative appointed to the Estate of Clyde D. Zeigler prior to the running of the statute of limitations. It is specifically denied that Plaintiff has filed an improper Amended Complaint and that he has attempted to substitute parties by doing so. Proof, if relevant, is strictly demanded. 23. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 24. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. WHEREFORE, Plaintiff, Peter Vaccaro, III, respectfully requests this Honorable Court to deny Defendants' Preliminary Objections to Plaintiff's Amended Complaint, or in the alternative to allow Plaintiff to file an Amended Complaint. 25. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 26. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 27. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 28. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 29. Denied. It is specifically denied that suit in this matter was initiated against the Estate of Sara Zeigler and the Estate of Clyde D. Zeigler alone and that the personal representatives were not named as parties. 30. Denied. It is specifically denied that no claims brought against the personal representatives of the Estates until the Plaintiff filed his Amended Complaint on August 20, 2009 substituting the personal representatives as parties in this matter nearly two years after the running of statute of limitations. By way of further answer, the personal representatives of the estates were always part of the lawsuit. Additionally, the other averments that are not a fact in this paragraph are specifically denied as erroneous conclusions of law. 31. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. 32. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. WHEREFORE, Peter Vaccaro, III respectfully requests this Honorable Court to deny Defendants' Preliminary Objections to Plaintiff's Amended Complaint, or in the alternative allow Plaintiff to file an Amended Complaint. 33. Admitted. 34. Admitted. 35. Admitted in part and denied in part. It is admitted that Plaintiff's Amended Complaint was sent by mail to Kevin D. Rauch, Esquire counsel for Defendant on August 10, 2009. It is specifically denied, however, that the Plaintiff's Amended Complaint was filed against new parties. 36. Denied. It is specifically denied that the service of the Amended Complaint has not been made on David S. Sobotka, Administrator of the Estate of Clyde D. Zeigler and Nancy Dellinger, Administratrix of the Estate of Sara Zeigler. It is further denied that those respective parties are "new parties". By way of further answer, original process was served on both Nancy Dellinger, Administratrix of the Estate of Sara Zeigler and David S. Sobotka, as Administrator of the Estate of Clyde D. Zeigler. Thereafter, counsel entered his appearance on behalf of those Defendants. Therefore, service was properly made on counsel for the Defendants. 37. Denied. This paragraph contains erroneous conclusions of law to which no further response is required. Proof, if relevant, is strictly demanded. WHEREFORE, Plaintiff, Peter Vaccaro, III respectfully requests this Honorable Court to deny Defendants' Preliminary Objections to Plaintiff's Amended Complaint, or in the alternative, grant leave for Plaintiff to reissue the Complaint for purposes of service on the respective administrators. Respectfully submitted, ichael D. Dautrich, Esquire Attorney for Plaintiff MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACCARO, III Plaintiff VS. DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM JURY TRIAL DEMANDED DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants PROOF OF SERVICE I, Jessica Delp, being duly sworn according to law, deposes and says that she served a true and correct copy of Plaintiff's Answers to Defendants' Preliminary Objections to Plaintiff's Amended Complaint and Plaintiff's Brief in Opposition to Defendants' Preliminary Objections to Plaintiff's Amended Complaint upon the following by Federal Express overnight delivery on or about November 19, 2009. Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, PC 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Jessica Delp, Legal Secre r to Michael D. Dautrich, Esquire Dautrich & Dautrich Law Offices Al PD-iIff"CE OF THE PROTHONOTARY 2009 NOV 20 PM 12:5 9 CUI x)41 I PETER VACCARO, III : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID S. SOBOTKA, : ESQUIRE, : CIVIL ACTION-LAW ADMINISTRATOR OF THE ESTATE OF CLYDE: D. ZEIGLER and NANCY : DELLINGER, ADMINISTRATOR OF THE ESTATE OF SARA ZEIGLER, Defendants : No. 07-6633 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 4`h day of December, 2009, upon consideration of Defendants' Preliminary Objections to Plaintiff s Amended Complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiffs claim arising out of allegedly tortious conduct of Clyde D. Zeigler (Count I of Plaintiffs Amended Complaint) is dismissed; and 2. Defendants' Preliminary Objections to Plaintiffs Amended Complaint are otherwise denied. BY THE COURT, C? esley O , Jr., W Michael D. Dautrich, Esq. 526 Court Street Reading, PA 19601 Attorney for Plaintiff Kevin D. Rauch, Esq. Ethan K. Stone, Esq. 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17050 Attorneys for Defendants 04P k-S rniq Ilft?? alflo? 2409 G''C -4 1;H 3' 15 I -AN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, Plaintiff, V. NANCY DELLINGER, ADMINISTRATOR OF THE ESTATE OF SARA ZEIGLER, Defendant. CIVIL DIVISION NO. 07-6633 ANSWER AND NEW MATTER TO PLAINTIPF'S AMENDED COMPLAINT (Jury Trial Demanded) TO: Plaintiff You are hereby notified to file a written Response to the enclosed Answer and New Matter within twenty (20) days From service hereof or a judgment May be entered against you. Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Summers, McDonnell, Hudock, Firm #911 Guthrie & Skeel, P.C. 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16359 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER VACCARO, CIVIL DIVISION Plaintiff, V. NO. 07-6633 ESTATE OF CLYDE D. ZEIGLER and (Jury Trial Demanded) ESTATE OF SARA ZEIGLER, Defendants. ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and Kevin D. Rauch, Esquire, and files the following Answer and New Matter to Plaintiff's Amended Complaint and in support thereof avers as follows: 1. Paragraph 1 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 2. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 3. Paragraph 3 refers to a Defendant who was dismissed from this matter pursuant to Preliminary Objections granted on December 4, 2009. 4. Admitted. 5. Admitted in part, denied in part. It is admitted that the Plaintiff was a passenger in an automobile owned by Tony Simonetta. It is admitted that a collision occurred between vehicles on the time, date and place identified. As to the remaining averments, after reasonable investigation, the Defendant has insufficient information as to the truth or falsity of the allegations, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 6. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 7. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 8. Paragraph 8 states a legal conclusion to which no response is required. To the extent, however, a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 9. Paragraph 9 states a legal conclusion to which no response is required. To the extent, however, a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. COUNTI 10-20 Paragraphs 10-20 are directed to a Defendant who was dismissed from this matter pursuant to Preliminary Objections which were granted on December 9, 2009. As such, no response is required. COUNT II 21. In response to paragraph 21, the Defendant reiterates and repeats all her responses in paragraphs 1 through 20 as if fully set forth at length herein. 22. Paragraph 22 and all of its subparts state legal conclusions to which no response is required. To the extent, however, a response is deemed necessary, it is: (a) specifically denied that Sara Zeigler acted negligently and carelessly by failing to supervise how Mr. Zeigler used the automobile; (b) specifically denied that Sara Zeigler acted negligently and carelessly by permitted Mr. Zeigler to use her vehicle; and (c) specifically denied that Sara Zeigler acted negligently and carelessly by entrusting her vehicle to Mr. Zeigler. To the contrary, Mrs. Zeigler acted in a reasonable and prudent manner at all times . 24. Paragraph 24 states a legal conclusion to which no response is required. To the extent, however, a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler, respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiff with costs and prejudice imposed. NEW MATTER 25. The motor vehicle accident in controversy is subject to the Pennsylvania Motor Vehicle Financial Responsibility Law and this Defendant asserts, as affirmative defenses, all rights, privileges and/or immunities accruing pursuant to said statute. 26. Some and/or all of Plaintiffs claims for damages are items of economic detriment which are or could be compensable pursuant to either the Pennsylvania Motor Vehicle Financial Responsibility Law and/or other collateral sources and same may not be duplicated in the present lawsuit. 27. To the extent that the Plaintiff has selected the limited tort option or is deemed to have selected the limited tort option then this Defendant sets forth the relevant provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law as a bar to the Plaintiffs ability to recover non-economic damages. 28. This Defendant pleads any and all applicable statutes of limitation under Pennsylvania Law as a complete or partial bar to any recovery by Plaintiff in this action. 29. The 1984 Chevrolet Caprice driven by Clyde Zeigler at the time of the subject accident was co-owned by Clyde & Sara Zeigler. WHEREFORE, Defendant, Nancy Dellinger, Administrator of the Estate of Sara Zeigler, respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiff with costs and prejudice imposed. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. t- C:i I -- B L Y• Kevin D. Rauch, Esquire Counsel for Defendant VERIFICATION Defendant verifies that she is the Defendant in the foregoing action; that the foregoing ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT is based upon information which she has fumished to her counsel and information which has been gathered by her counsel in the preparation of the lawsuit. The language of the ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT is that of counsel and not of the Defendant. Defendant has read the ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT and to the extent that the ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT is based upon information which she has given to her counsel, it is true and correct to the best of her knowledge, information and belief. To the extent that the content of the ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT is that of counsel, she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: /o -a3 -D 9 - a4zz? &J-1? Nancy Delling Administratrix for the Estate of Sara Zeigler #16359 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 30th day of December, 2009. Michael D. Dautrich, Esquire Dautrich & Dautrich 526 Court Street Reading, PA 19601 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: Kevin D. Rauch, Esquire Counsel for Defendant -7"A py 2 009 0 SC 31 f I I I )' It MICHAEL D. DAUTRICH, ESQ. DAUTRICHI & DAUTRICH LAW OFFICES 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACARRO, III Plaintiff vs. nE 17 THE tio NOTARY 2010 JA?IN -8 P1? 1:[2 IN THE COURT OF COMMON 1 CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM DAVID S. SOBOTKA, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter as being "Settled, Discontinued and Ended". Date: 1 _? 10 ICHAEL D. DAUTRICH, ESQUIRE Attorney for Plaintiff 526 Court Street Reading, PA 19601 610-375-9455 I -1 MICHAEL D. DAUTRICH, ESQ. DAUTRICH & DAUTRICH LAW OFFICES 526 COURT STREET READING, PA 19601 610-375-9455 Attorney ID: 77187 PETER VACARRO, III Plaintiff vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6633 CIVIL TERM DAVID S. SOBOTKA, ESQUIRE, : ADMINISTRATOR OF THE ESTATE OF CLYDE D. ZEIGLER and NANCY DELLINGER, ADMINISTRATOR OF THE: ESTATE OF SARA ZEIGLER, Defendants JURY TRIAL DEMANDED CERTIFICATE OF ADDRESS I hereby certify that the names and addresses set forth below are true and correct to the best of my knowledge, information and belief: Ethan K. Stone, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway Mechanicsburg, PA 17050 Michael D. Dautrich, Esquire Dautrich & Dautrich Law Offices 526 Court Street Reading, PA 19601 Da 'elle Pariseau, Legal Assistant to Mich el D. Dautrich, Esquire 526 ourt Street eading, PA 19601 (610) 375-9455 Date: / - ? _ j 0