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HomeMy WebLinkAbout07-6639v BRIAN SHERMAN, V. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA JAMES THOMAS Sr., and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, NO. 07- 0(039 C?iu?(T m CIVIL ACTION - LAW Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue - Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-9108 HANDLER, HENNI By Ury Rosen 'erg, Esq. 0569 M. Feather, Esq. ID No. 79456 Harrisburg, PA 17110 717-238-2000 Attorneys for Plaintiff BERG, LLP v COMPLAINT AND NOW, comes the Plaintiff, Brian Sherman, by and through his attorneys, FAWP Directories\TFC\ComplaintsWssigned Claims Plan\Sherman.wpd BRIAN SHERMAN, Plaintiff V. JAMES THOMAS Sr., and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW HANDLER, HENNING & ROSENBERG, LLP, by David H. Rosenberg, Esq., who makes the within Complaint against the Defendants, James Thomas, and the Pennsylvania Financial Responsibility Assigned Claims Plan, and avers as follows: 1. Plaintiff, Brian Sherman, is an adult individual and citizen of the Commonwealth of Pennsylvania residing at 186 Carriage Drive, Newville, PA 17241. 2. Defendant, James Thomas, Sr., is an adult individual and citizen of the Commonwealth of Pennsylvania residing at Big Spring Terrace Lot 76, Newville, PA 17241. -1- 3. Defendant, Pennsylvania Financial Responsibility Assigned Claims Plan (hereinafter referred to as "PFRACP"), is an entity with a registered address at Eleven Penn Center, Suite 701, 1835 Market Street, Philadelphia, PA 19103, and established by the Insurance Department of the Commonwealth of Pennsylvania prior to the Act 6, July 1, 1990, Amendments, to provide basic loss benefits, including, but not limited to, uninsured-motorist and personal-injury protections benefits for those claimants who, through no fault of their own, have no other source of insurance coverage. 4. At all times material hereto, Plaintiff, Brian Sherman, was a front-seat passenger in a 1972 Chevrolet Nova S.S., owned and operated by Defendant, James Thomas, bearing Pennsylvania registration number 5399 SME. 5. At all times material hereto, Defendant, James Thomas, was the owner and operator of said 1972 Chevrolet Nova S.S., bearing Pennsylvania Registration number 5399 SME. 6. At all times material hereto, said 1972 Chevrolet Nova S.S., owned and operated by Defendant, James Thomas, was not insured. 7. At all times material hereto, Defendant, James Thomas, was not a named insured under any motor vehicle insurance policy. 8. At all times material hereto, Plaintiff, Brian Sherman, owned an un- registered, un-insured motor vehicle, did not reside with any relatives who owned a motor vehicle, was not an insured or named insured under any policy of automobile insurance, and was not within the course and scope of his employment. 9. On or about July 21, 2006, Defendant, James Thomas , was traveling westbound on Oak Flat Road, in Carlisle, Cumberland County, Pennsylvania. -2- 10. At all times material hereto, Defendant James Thomas, lost control of said vehicle, causing 150 feet of tire marks on the roadway, then leaving the roadway and traveling an additional 25 feet in the southwest direction before striking a telephone pole, 5 feet from the ground. The impact caused said vehicle to roll onto the roof, trapping both Defendant and Plaintiff inside the vehicle. 11. Prior to embarking on the journey that resulted in the crash, Defendant James Thomas, had been consuming alcohol and/or illicit drugs. 12. At the time of the crash, Defendant, James Thomas, was driving under the influence of alcohol. 13. Blood alcohol testing performed after the crash confirmed a blood alcohol content of .21 %. 14. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Brian Sherman, sustained serious and extensive injuries as set forth more specifically below. COUNT I - NEGLIGENCE BRIAN SHERMAN v. JAMES THOMAS 15. Paragraphs 1-14 are incorporated herein as if fully set forth below. 16. The occurrence of the aforementioned collision and the resultant injuries to Plaintiff, Brian Sherman, are the direct and proximate result of the negligence, carelessness, and/or recklessness of the Defendant, James Thomas, generally, and more specifically, as set forth below: (a) In driving Defendant's vehicle in willful and/orwanton disregard forthe safety of persons or property, in violation of 75 Pa.C.S.A. §3736; -3- (b) In driving Defendant's vehicle in careless disregard for the safety of persons and property, in violation of 75 Pa. C.S.A. § 3714; (c) In driving while intoxicated, in violation of 75 Pa. C.S.A. § 3802; (d) In driving Defendant's motor vehicle at a time when he was unfit to do so, due to his consumption of alcohol and/or drugs; (e) In failing to properly and adequately observe the traffic conditions then and there existing; (f) In otherwise driving Defendant's vehicle upon a roadway in a manner endangering persons and property and in a manner with careless disregard to the rights and safety of others in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 17. As a direct and proximate result of the negligence of the Defendant, James Thomas, the Plaintiff, Brian Sherman, sustained injuries including, but not limited to, a fractured pelvis and right fibula. 18. As a direct and proximate result of the negligence of the Defendant, James Thomas, the Plaintiff, Brian Sherman, has suffered a loss of income and may in the future continue to suffer a loss of income and/or earning capacity, to his financial detriment and loss. 19. As a direct and proximate result of the negligence of the Defendant, James Thomas, the Plaintiff, Brian Sherman, has suffered physical pain, discomfort, and mental anguish, and he will continue to endure the same for an indefinite period of time in the future, to his physical, emotional, and financial detriment and loss. 20. As a direct and proximate result of the negligence of the Defendant, James -4- Thomas, the Plaintiff, Brian Sherman, has been compelled, in order to effect a cure for aforesaid injuries, to expend money for medicine and medical attention, and will continue to do so in the future. 21. As a direct and proximate result of the negligence of Defendant, James Thomas, the Plaintiff, Brian Sherman, continues to receive treatment and incur expenses as a result of said injuries, and will continue to do so in the future, to his detriment and loss. 22. As a direct and proximate result of the negligence of the Defendant, James Thomas, the Plaintiff, Brian Sherman, has suffered a loss of life's pleasures and he will continue to suffer the same in the future, to his detriment and loss. 23. As a direct and proximate result of the negligence of the Defendant, James Thomas, the Plaintiff, Brian Sherman, has been, and will in the future be, hindered from attending to his daily duties, to his detriment, loss, humiliation, and embarrassment. 24. Plaintiff, Brian Sherman, believes and, therefore, avers that his injuries are permanent and serious in nature. WHEREFORE, Plaintiff, Brian Sherman, seeks damages from the Defendant, James Thomas, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II BRIAN SHERMAN v. PFRACP 25. Paragraphs 1-24 are incorporated herein as if fully set forth below. 26. Pursuant to 75 Pa.C.S.A. §§1751-1757, the PFRACP was established and exists to provide basic loss benefits for residents of the Commonwealth of Pennsylvania -5- who become injured in collisions arising from the use of motor vehicles occurring in the Commonwealth of Pennsylvania and who have no other source of insurance benefits or coverage. 27. On the date of the collision in question, Plaintiff, Jane Brian Sherman; (a) Was a resident of the Commonwealth of Pennsylvania; (b) Was injured as a result of a motor vehicle collision occurring in the Commonwealth of Pennsylvania; (c) Was not the owner or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments, or authorities; (d) Was not the owner or occupant of a motor vehicle owned by a self- insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured- and underinsured-motorist coverage; (e) Was otherwise not entitled to receive any first-party benefits under §1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injuries arising from the collision; and (f) Was not the operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle or motorized pedacycle or other like type of vehicle required to be registered under this title and involved in the collision. 28. Plaintiff, Brian Sherman, is, in all other respects, an eligible claimant pursuant to 75 Pa.C.S.A. §1752 and is entitled to recover for losses and damages he has -6- sustained pursuant to 75 Pa.C.S.A. §1754. 29. As a result of this collision, for which Plaintiff, Brian Sherman, was not at fault, he suffered serious injuries as outlined above. 30. Furthermore, at the time of this collision, Plaintiff, Brian Sherman, was not otherwise entitled to receive any first-party benefits under §1711 (relating to required benefits) or §1712 (relating to availability of benefits) applicable to the injuries arising from this collision and as a result thereof, Plaintiff required reasonable and necessary medical treatment and incurred medical bills for said treatment. WHEREFORE, Plaintiff, Brian Sherman, demands judgment against Defendant, PFRACP, for the applicable statutory uninsured motorist benefits. COUNT III BRIAN SHERMAN v. PFRACP 31. Paragraphs 1-30 are incorporated herein as if fully set forth below. 32. The facts set forth herein establish that Defendants are individually, jointly and/or severally liable for Plaintiff, Jane Brian Sherman's, injuries and damages. WHEREFORE, Plaintiff, Brian Sherman, demands judgment in his favor and against Defendants, James Thomas and PRFACP, individually and/or jointly and/or severally, for an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. Respectfully submitted, HANDLER, HENNING "OWNBERG, LLP Date:-1_! 0' By: CID id Rosenberg, Esq. o. 2 569 M. Feather, Esq. ID No. 79456 Harrisburg, PA 17110 717-238-2000 Attorneys for Plaintiff -7- VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: O ?? C? +v J V ? 0 • Cr) io " MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Christopher M. Reeser, Esquire ID #73632 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 15595-tba CMR Attorney for Defendant PFRACP BRIAN SHERMAN COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 07-6639 VS. JAMES THOMAS, SR. and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN : JURY TRIAL DEMANDED Defendants TO THE PROTHONOTARY: ENTRY OF APPEARANCE Kindly enter the appearance of the undersigned on behalf of Defendant, Pennsylvania Financial Responsibility Assigned Claims Plan, in the above captioned case. By: MARSHALL DENNEHEY WARNER COLEM OGGIN Christopher M. Reeser, Esquire Attorney for Defendant PFRACP ID# 73672 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: December 6, 2007 w • MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Christopher M. Reeser, Esquire ID #73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 15595-tba CMR Attorney for Defendant PFRACP BRIAN SHERMAN COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 07-6639 VS. JAMES THOMAS, SR. and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN : JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on December 6, 2007, I served a copy of Defendant PFRACP's Entry of Appearance via First Class United States mail, postage prepaid as follows: David H. Rosenberg, Esquire Gregory M. Feather, Esquire Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiff James Thomas, Sr. Big Spring Terrace, Lot 76 Newville, PA 17241 Defendant Christopher M. Reeser cy.a SHERIFF'S RETURN - REGULAR CASE N.: 2007-06639 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHERMAN BRIAN VS THOMAS JAMES SR ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon THOMAS JAMES SR the DEFENDANT , at 2113:00 HOURS, on the 29th day of November-, 2007 at CUMBERLAND COUNTY PRISON 1101 CLAREMONT ROAD CARLISLE, PA 17013 JAMES THOMAS SR by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 16.32 Affidavit .00 Surcharge 10.00 .00 44.32 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 12/12/2007 HANDLER HENNING SENBERG By: Deputy eriff of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE Nq: 2007-06639 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHERMAN BRIAN VS THOMAS JAMES SR ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA serve the within COMPLAINT & NOTICE County, Pennsylvania, to On December 12th , 2007 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: So Docketing 6.00 ----- Out of County 9.00 ' Surcharge 10.00 R. Thomas Kline Dep Philadelphia 116.00 Sheriff of Cumberland County Postage 1.31 142.31 ? %a??a?b 7 12/12/2007 HANDLER HENNING ROSENBERG Sworn and subscribe to before me this day of A. D. In The Court of Common' Plews of Cumberland County, Pennsylvania Brian Sherman VS. James Thomas Sr et al SERVE: Pennsylvania Financial No. Responsibility Assigned Claims Plan (WJJs S U ", ? County, Now, Ncvunber 19. 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, 'ki Ov e.M 6e-r ) ? " , 20 07, at 2 = L15 o'clock M. served the within upon j? t- at (?15 by handing to ?,a O a yln e V/ o V)?Y1 r M), t vi - a and made known to copy of the original So answers, 07-6639 civil the contents thereof. Sworn and subscribed before me this, 5 day of M , 200--j 1 /- ke, ? ? 4---c. -7c) COSTS SERVICE MILEAGE _ AFFIDAVIT $ Gregory M. Feather, Esq. I.D.#79456 David H Rosenberg, Esq. I.D.#20569 HANDLER, HENNING & ROSENBERG, LLP 1300 Lingiestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 E-mail: FeatherCaaHHRLaw.com BRIAN SHERMAN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 07-6639 JAMES THOMAS Sr., and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, Defendants CIVIL ACTION - LAW STIPULATION TO STRIKE COUNT III FROM PLAINTIFF'S COMPLAINT tk AND NOW, this _ day of January, 2008, Plaintiff, Brian Sherman, and Defendant, Pennsylvania Financial Responsibility Assigned Claims Plan, by and through their respective attorneys, Gregory M. Feather, Esq., and Christopher M. Reeser, Esq., do hereby stipulate and agree to the following: 1. This case arises out of a motor vehicle collision that occurred on July 21, 2006. 2. On or about October 22, 2007, Plaintiff filed a Complaint against Defendant, James Thomas, Sr. and Defendant Pennsylvania Financial Responsibility Assigned Claims Plan (hereinafter "PFRACP"). 3. Defendant, James Thomas, Sr., is uninsured, currently incarcerated, and has not had an attorney enter an appearance on his behalf at the time of the filing of this stipulation. 4. Count III of Plaintiffs complaint alleged that Defendant, PFRACP was individually, jointly and/or severally liable for Plaintiffs injuries and damages. 5. Defendant, PFRACP, prepared proposed Preliminary Objections to Count III of Plaintiffs complaint. 6. Count III of Plaintiffs complaint does not contain any allegations against Defendant, James Thomas, Sr. 7. After reviewing Defendant PFRACP's proposed preliminary objections, Plaintiff agrees that Count III of Plaintiffs complaint should be stricken from the complaint. 8. Plaintiff, Brian Sherman and Defendant, PFRACP hereby stipulate to remove Count 111 from Plaintiffs complaint. HANDLER, HENNING & By: GregoryFeather, Esq. I.,: No. 9456 D ` v' Rosenberg, Esq. I.D. No. 20569 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff LLP MARSHALL, DENNEHEY, WARNER, COLEMAN.. r606GIN By: C Christopher M. Reeser, Esq. I.D. No. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 Attorneys for Defendant PFRACP -2- 10 J? co c.r MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Christopher M. Reeser, Esquire ID #73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 15595-00234 Attorney for Defendant PFRACP BRIAN SHERMAN COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 07-6639 VS. JAMES THOMAS, SR. and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN : Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: David H. Rosenberg, Esquire Gregory M. Feather, Esquire Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiff James Thomas, Sr. Big Spring Terrace, Lot 76 Newville, PA 17241 Defendant You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN $)GOGGIN By: l i Christopher M. Reeser, Esquire Attorney for Defendants ID# 73672 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: February 18, 2008 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Christopher M. Reeser, Esquire ID #73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 15595-00234 Attorney for Defendant PFRACP BRIAN SHERMAN Plaintiff Vs. JAMES THOMAS, SR. and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN : COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6639 JURY TRIAL DEMANDED Defendants DEFENDANT PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT WITH CROSSCLAIM 1. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the averment in Paragraph 1 and proof thereof is demand at trial. 2. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the averment in Paragraph 2 and proof thereof is demand at trial. 3. Denied as stated. Defendant PFRACP does provide basic loss benefits to claimants who meet certain eligibility criteria, only. The benefits are limited in amount and pertain only to medical expenses and uninsured motorist coverage. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied pursuant to Pa.R.C.P. 1029(e). 8. Denied pursuant to Pa.R.C.P. 1029(e). 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied pursuant to Pa.R.C.P. 1029(e). COUNT I - NEGLIGENCE Brian Sherman v. James Thomas 15-24. The allegations in Paragraphs 15-24 are directed at a party other than Answering Defendant and therefore no responsive pleading is required. WHEREFORE, Defendant PFRACP requests judgment be entered in its favor. COUNTII Brian Sherman v. PFRACP 25. Defendant PFRACP repeats and incorporates its answers to Paragraphs 1-24 as if set forth verbatim. 26. Denied as stated. Defendant PFRACP does provide basic loss benefits to claimants who meet certain eligibility criteria, only. The benefits are limited in amount and pertain only to medical expenses and uninsured motorist coverage. 27. a-f. Denied pursuant to Pa.R.C.P. 1029(e). 28. All allegations in Paragraph 28 is a legal conclusion to which no responsive pleading is required. 2 29. Denied pursuant to Pa.R.C.P. 1029(e). 30. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant PFRACP requests judgment be entered in its favor. COUNT III Brian Sherman v. PFRACP 31. Stricken by Stipulation of the parties. 32. Stricken by Stipulation of the parties. WHEREFORE, Defendant PFRACP request judgment be entered in its favor. NEW MATTER 33. Plaintiffs' claims are barred or limited by the Pennsylvania Comparative Negligence Act, 42 PA.C.S. §7102. 34. Plaintiffs' claims are barred by Plaintiffs' voluntary assumption of the risk. 35. Defendant Pennsylvania Financial Responsibility Assigned Claims Plan's (herein after "The Plan") liability, if any, for damages arising from the motor vehicle accident in question is limited to no more than $5,000.00 for the medical expense for each person otherwise allegeable for plan benefits, 75 Pa.C.S. § 1752, et. seq., and no more than $15,000.00 per person, less all medical expenses paid or payable by The Plan for additional coverage claims paid under 75 Pa.C.S. §1754. Plaintiff s claims in excess of these limits are hereby denied in their entirety as contrary to law. 36. If it is determined that Plaintiff had a collateral source of benefits for the injuries and damages alleged in this Complaint, the value of all such benefits must be deducted from the Plaintiffs alleged loss in determining Plaintiffs net loss. Plaintiffs claims in excess of his 3 alleged net loss are barred by the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) 37. If it is determined that Plaintiff was domiciled in a state other than Pennsylvania at the time of the alleged accident, Plaintiff is ineligible for benefits from The Plan pursuant to §1752(a)(1) of the MVFRL 38. In order for the Plaintiff to recover from The Plan, Plaintiff bears the burden of proving that the uninsured driver involved in the accident in question was responsible for the accident. 75 Pa.C.S. §1754 39. If it is determined that as of the date of the alleged accident, Plaintiff owned a motor vehicle or a motor vehicle was owned by Plaintiffs household, Plaintiffs claims for relief are barred by 75 Pa.C.S. §1752(a)(3). 40. The Plan did not issue an insurance policy in this action and Plaintiff is not insured by The Plan. The Plan did not insure the vehicle involved in the accident in question at anytime relevant hereto. Plaintiff is not entitled to recover lost wages from The Plan pursuant to § 1753 of the MVFRL 41. Any and all injuries or damages sustained by Plaintiff were caused by the negligence of a third party or third parties against whom The Plan has a right of subrogation pursuant to § 1757 of the MVFRL. WHEREFORE, Defendant PFRACP requests judgment be entered in its favor. CROSSCLAIM PURSUANT TO Pa.RC.P.1031.1 42. Paragraphs 1-24 of Plaintiffs Complaint are incorporated herein as if set forth at length without adoption. 4 43. The Pennsylvania Financial Responsibility Assigned Claims Plan asserts it right of subrogation pursuant to 75 Pa. C.S.A. § 1756 against its co-defendant James Thomas, Sr. 44. Defendant Pennsylvania Financial Responsibility Assigned Claims Plan joins co- defendant James Thomas, Sr. in order to protect its common law right of contribution based on the averments made against co-defendant in Plaintiffs Complaint. 45. Defendant Pennsylvania Financial Responsibility Assigned Claims Plan joins co- defendant James Thomas, Sr. in order to preserve its statutory right to subrogation. WHEREFORE, Defendant Pennsylvania Financial Responsibility Assigned Claims Plan requests judgment be entered in its favor and against co-defendant James Thomas, Sr. By: Dated: February 18, 2008 MARSHALL DENNEHEY WARNER COLE OGGIN Christopher M. Reeser, Esquire Attorney for Defendant PFRACP ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 5 ' J L VERIFICATION I, Anne Roettger, hereby state and aver that I have read the foregoing document which has been drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of my counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. ANNE ROETTGER P rqa l M M CT, rul :0 kz -< MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Christopher M. Reeser, Esquire ID #73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 15595-00234 Attorney for Defendant PFRACP BRIAN SHERMAN COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 07-6639 VS. JAMES THOMAS, SR. and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN : Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on February 18, 2008, I served a copy of Defendant PFRACP's Answer with New Matter and Crossclaim via First Class United States mail, postage prepaid as follows: David H. Rosenberg, Esquire Gregory M. Feather, Esquire Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiff James Thomas, Sr. Big Spring Terrace, Lot 76 Newville, PA 17241 Defendant Christopher M. Reeser t CID --? rr i s rQ ^aJ ?1- ?m C 3 David H Rosenberg, Esquire I . D.20569 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: Rosenbera(fthrlaw.com BRIAN SHERMAN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES THOMAS Sr., and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, NO. 07-6639 CIVIL ACTION - LAW Defendants PLAINTIFF'S REPLY TO NEW MATTER Now, comes the Plaintiff, Brian Sherman, by and through his counsel, HANDLER, HENNING & ROSENBERG, LLP, David H Rosenberg, Esq., replies to Defendants' New Matter as follows: 33. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 34. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 35. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 36. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 37. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 38. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 39. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 40. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. 41. Denied. These averments are conclusions of law to which a response is not required. If a response was required, these averments are specifically denied. WHEREFORE, Pl aintiff demands judgment against Defendant, James Thomas, Sr. and Pennsylvania Financial Responsibility Assigned Claims Plan, for the Relief set forth in his Complaint. 2 CROSS CLAIM PURSUANT TO PA R.C.P. 1031.1 42. This does not apply to Plaintiff in this matter; therefore, no responsive pleading is required. 43. This does not apply to Plaintiff in this matter; therefore, no responsive pleading is required. 44. This does not apply to Plaintiff in this matter; therefore, no responsive pleading is required. 45. This does not apply to Plaintiff in this matter; therefore, no responsive pleading is required. WHEREFORE, Plaintiff demands judgment against Defendant, James Thomas, Sr. and Pennsylvania Financial Responsibility Assigned Claims Plan, for the Relief set forth in his Complaint. Date: g Respectfully submitted, HANDLER, ING 8 By Feather, BERG, LLP David H Ro nberg, Esquire D. #32 13 inglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff 3 BRIAN SHERMAN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-6639 JAMES THOMAS Sr., and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CIVIL ACTION - LAW CLAIMS PLAN, Defendants CERTIFICATE OF SERVICE On the 22"d day of February, 2008, 1 hereby certify that a true and correct copy of Plaintiffs Reply To New Matter was served upon the following by depositing in U.S. Mail; Christopher M. Reeser, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Respectfully submitted, & .RO BERG, LLP Date: q - o?R- D t By (?, egoryM. Fea r, Esq. I. D. #7945 David osenberg, Esquire #32298 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: /e -L5- 07 r ? ) rTi ?4 • • BRIAN SHERMAN Plaintiff VS. JAMES THOMAS, SR. and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN : Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6639 JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE AND MARK SETTLED TO THE PROTHONOTARY: Please mark the above- action, only as between BRIAN SHERMAN and PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, as settled, discontinued and ended. LLP By: Dated: 3 [ i ([ZM9 Harrisburg, PA 17110 ?"3 rv r?- rr _: Y ?? t