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HomeMy WebLinkAbout08-0565IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. -(n S cAv) u n. Civil Action - ? Medical Professional Liability Action Billy L. Wiggins 1306 Middle Avenue Elyria, OH 44035 Plaintiff(s) & Address(es) Swift Transportation Co., Inc. vs 2200 South 75`h Avenue Phoenix, AZ 85043 Defendant(s) & Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ® Attorney ? Sheriff Larry A. Weisberg, Esq. Signature of Attorney McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 Supreme Court ID No. 83410 717-238-5707 Date: /' a ?- a D U e Name/Address/Telephone No. of Attorney WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S) Swift Transportation Co., Inc. YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. 1/1 Date: -u _ 2I- ! Gd by Proth otary ? Check here if reverse is issued for additional information. Prothon. - 55 Deputy 71 1 v o INI Q ?7 a k; 3 W IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. SWIFT TRANSPORTATION CO., INC. Defendant CIVIL ACTION - LAW AFFIDAVIT OF SERVICE OF WRIT OF SUMMONS I, Larry A. Weisberg, Esquire, attorney for Billy L. Wiggins, being duly sworn according to law do depose and make the following Affidavit regarding service of Plaintiff's Writ of Summons on Defendants as follows: 1. On or about January 31, 2008, Defendant Swift Transportation Co., Inc. was served via certified mail at 2200 South 75th Avenue, Phoenix, Arizona 85043. A copy of the return receipt evidencing service is attached hereto as Exhibit "A." Respectfully submitted, McCart4 Weisberg Cummings, P.C. 'Larry H. vveisaerg, tsquire Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff 6? - a Date 7Cityoof lda M Nace ARY PUBLI C burg, Dauphin County n Expires 10/02/2010 Sworn and subscribed Before me this 4th day of February, 2008 Notary Public MY COMMISSION EXPIRES: i0.0a- ao/0 ?silr±Ea far' r°riL.? Q- m>- _ M O j O ? fU O '!F i M Too _- ¦ Complete items 1, 2, and 3. Also complete item 4 If Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: JQ0() S zil I-ile- A. Signature ? Agent i%GrllKell(' L? 1 o addressee Received by (Prfnted Neme) C. a Delivery D. Is delivery address different from item ?? ? Yes If YES, enter deiivery address below: O No 3. YAM Type 5Cwmw mail D Express mail Registered 0 Return Receipt for Merchandise ? Insured Mail ? C.Q.D. 4. Restricted DeNvery? Pft Fee) ? Yes 2. Article Number -- -7007 3020 0003 0439 1214 (Transfer from service label . PS Form 3811, February 2004 Domestic Retum Receipt 102595-0244-1540 ; o ?.. cn r ? C: N ;fit ! No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, CIVIL ACTION - LAW Plaintiff, V. SWIFT TRANSPORTATION CO., INC., No. 08-565 Civil Term Issue No. ENTRY OF APPEARANCE Defendant. Code: Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED w No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, V. Plaintiff, SWIFT TRANSPORTATION CO., INC., Defendant. CIVIL ACTION - LAW No. 08-565 Civil Term ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of the defendant, SWIFT TRANSPORTATION CO., INC., regarding the above-referenced matter. A JURY TRIAL IS DEMANDED DICKIE, McCAMEY & CHILCOTE, P.C. By- Pion, Esquire Allan Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant No. 08-565 Civil Term CERTIFICATE OF SERVICE I, John T. Pion, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served upon counsel of record by U.S. mail, postage prepaid, this tf( day of February, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff DICKIE, McCAMEY & CHILCOTE, P.C. By \ Jo T. Pion, Esquire Two PPG Place, Strife 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant F , r , - a µ; ? No. 08-565 Civil Term . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. SWIFT TRANSPORTATION CO., INC., Defendant. CIVIL ACTION - LAW No. 08-565 Civil Term Issue No. PRAECIPE FOR RULE TO FILE A COMPLAINT Code: Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED fib. 8' a002 Rvle iv Re- &13lc6n+ -T-ssL)ejby o Aey No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. SWIFT TRANSPORTATION CO., INC., Defendant. CIVIL ACTION - LAW No. 08-565 Civil Term } PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Please issue the necessary Rule upon Plaintiff to file a Complaint in the above-referenced matter within twenty (20) days of service thereof, or suffer Judgment of Non-Pros. A JURY TRIAL IS DEMANDED. DICKIE, McCAMEY & CHILCOTE, P.C. By Pion, Esquire (Allan Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant No. 08-565 Civil Term CERTIFICATE OF SERVICE I, John T. Pion, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Rule to File a Complaint was served upon counsel of record by U.S. mail, postage prepaid, this day of February, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff) DICKIE, McCAMEY & CHILCOTE, P.C. By ?\- \-qohn\T. Pion, Esquire Two PPG Place, Sui&400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant N ? f -r j f f r= F _ co ?,rj (:J rri No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. SWIFT TRANSPORTATION CO., INC., CIVIL ACTION - LAW No. 08-565 Civil Term Issue No. AFFIDAVIT OF SERVICE Defendant. Code: Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, CIVIL ACTION - LAW No. 08-565 Civil Term V. SWIFT TRANSPORTATION CO., INC., Defendant. AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF ALLEGHENY Before me, the undersigned authority, personally appeared John T. Pion, Esquire, who deposes and says that he mailed the original Rule to File a Complaint in the above-entitled action to Larry A. Weisberg, Esquire, McCarthy Weisberg Cummings, P.C., 2041 Herr Street, Harrisburg, Pennsylvania 17103-1624, on or about the 25`h day of February, 2008, by Certified Mail, Return Receipt Requested. A copy of the signed Return Receipt is attached hereto and marked Exhibit A. SWORN TO and subscribed before me this A cl t' day of February, 2008. - Q741 Nota0y Public COMM4)NV'f r-Ar T'4 f)F PENNSYLVANIA Ja.`;•;: pry Public City -1y courdY My r ,.. iy 11, 2009 Membee, c, r: ,by ;,a AsLooiation of Notaries By hn 'I\ Pion, Esquire Counsel for • Compkft r ms 1, 2, and & Also =nplete Am 4 H Pbob clad Ddvery is desired. =V%=r= address on the the ft= to you. 6 AWO this card to the beck of the malipieoe, or an the front if speoe permits. #*Wb Addiened to: LoL r r11 A . b e rS, FS y . M (o r+k x w-eLs l e r9 4wrn.*v 6 A? C./ T c- :ZO4 ( 14,e r r S+r IA&*Irk Lciouc"S-) Tl¢ l 7i°3? 1?; A. X " L, B. ii? by ( / Name ) Cd-Y..l I D. Is ddvary addiaae dftm ham Item I? ? Yo H YES, sitar delivery addmw below: ? No 3 sarvlae?A* ArCwM; Mal D E,preas Mom O R i gh Ir I E Rdw.. Receipt for Iuerdwwk a O leeured MaN C3 C.O.D. 4. Restdctad DetMxyl PDOm Foo ? Yo >< t mgwwmh aq `?co di Q. 4 4 C? e 0 t 3 x 4 0 3 ommsow Pe Farm 3811, February 2004 Domestic Rehm R.ceapt , EXHIBIT A a No. 08-565 Civil Term CERTIFICATE OF SERVICE I, John T. Pion, Esquire, hereby certify that a true and correct copy of the foregoing Affidavit of Service was served upon counsel of record by U.S. mail, postage prepaid, this C? tv- day of February, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff DICKIE, McCAMEY & CHILCOTE, P.C. Bye T. Pion, Esquire Two PPG P1a`6 Site 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant r J3 co fv??. wash 9 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. CIVIL ACTION - LAW JEREMY HECK and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford St. Carlisle, Pennsylvania 17013-3302 717-249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION, 32 South Bedford St. Carlisle, Pennsylvania 17013-3302 717-249-3166 2 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 236-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. CIVIL ACTION - LAW JEREMY HECK and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC. Defendants COMPLAINT Plaintiff, Billy L. Wiggins, by and through his counsel, McCarthy Weisberg Cummings, P.C., hereby files the following Complaint-Civil Action (hereinafter "Complaint") asserting a claim for damages against the Defendants set forth herein, jointly and severally, as follows: 1. Plaintiff, an adult individual, is a resident and citizen of the State of Ohio, residing at 1306 Middle Avenue, Elyria, Ohio 44035. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 2. Defendant Jeremy Heck (hereinafter "Heck"), is an adult individual with a business address of c/o Swift Transportation Co., Inc., 2200 South 75th Avenue, Phoenix, Arizona 85043. At all times relevant and material hereto, Heck was a licensed commercial truck driver employed by Defendant Swift Transportation Company., Inc. (hereinafter "Swift"). 3. Swift is an Arizona corporation with a business address of 2200 South 75th Avenue, Phoenix, Arizona 85043. 4. On August 25, 2006, Plaintiff was a licensed commercial truck driver employed by D & D Transport, Inc. (hereinafter "D & D"), a commercial trucking company with a business address of 3290 College Street, Newberry, South Carolina 29108. 5. On August 25, 2006, at approximately 6:30 p.m., Plaintiff, in the course of his employment with D & D, was at the Petro Stopping Center (hereinafter "Petro") truck stop located at 1201 Harrisburg Avenue, Route 11, Carlisle, Cumberland County, Pennsylvania 17013. 6. On the aforementioned date and time, Plaintiff exited the Petro store by foot and proceeded to walk across the fueling area of the Petro, carrying his cup of coffee, when he was struck forcefully by a tractor-trailer being driven by Heck, causing Plaintiff to be thrown backwards, and causing Plaintiff to suffer serious, permanent and disabling injuries more particularly set forth herein. 7. At the time of the aforesaid collision, Heck was driving a tractor-trailer owned by Swift and in the course of his employment with Swift. 2 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 8. Subsequently to being hit by the Swift tractor-trailer, Plaintiff made eye contact with Heck and yelled at Heck that Heck had struck Plaintiff with his moving truck. 9. Subsequent to Plaintiff advising Heck that Heck had struck Plaintiff, Heck said nothing to Plaintiff and drove his truck away onto Route 11 North. 10. Plaintiff was able to drive his own D & D truck and catch up with Heck on Route 11 North; however Heck did not stop when contacted by Plaintiff on his CB radio. 11. Heck failed to stop and provide any information to Plaintiff as required by Pennsylvania's "hit and run" statute, 75 Pa.C.S.A. §§3741-3755. 12. Plaintiff identified Heck by writing down the vehicle number, 589092, on the trailer of the Swift tractor-trailer that struck Plaintiff. 13. As a result of the aforesaid collision, Plaintiff suffered serious, permanent and disabling injuries including, but not limited to, the following: left anterior shoulder contusion and rotator cuff tendonitis, cervical strain, rotator cuff strain, and chronic left shoulder and neck pain. 14. As a result of the aforesaid collision, on May 22, 2007, Plaintiff was assessed an eight percent impairment rating to his left upper extremity for pain in the left shoulder by Frank K. Noojin, M. D. 15. As a result of the aforesaid collision, Plaintiff has had to incur and continues to incur expenses for medical care in an effort to treat Plaintiffs injuries. 3 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 16. As a result of the aforesaid collision, Plaintiff has been and continues to be unable to properly attend to and perform his usual daily duties, occupations, labors and leisure pursuits. 17. As a result of the aforesaid collision, Plaintiff has suffered and continues to suffer great loss and depreciation of his earnings capacity. 18. As a result of the aforesaid collision, Plaintiff has suffered and continues to suffer from severe physical pain, mental anguish, humiliation and emotional distress. COUNTI (NEGLIGENCE) Plaintiff, Billy L. Wiggins v. Defendant, Jeremy Heck 19. Paragraphs 1 through 18 above are incorporated herein by reference as if more fully set forth at length. 20. The pain, suffering, injuries and other losses of Plaintiff were the direct and proximate cause of the negligence of Heck, acting as an agent, employee, representative and/or independent contractor, who conducted the business of Swift within the scope of his authority, employment and/or job duties as follows: (a) failing to properly keep his tractor-trailer vehicle under adequate control; (b) driving a tractor-trailer vehicle without proper regard for the safety of persons; (c) failing to maintain a proper lookout ahead; (d) careless operation of a tractor-trailer vehicle; 4 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (e) failing to warn Plaintiff of his approach; (f) failing to stop or otherwise execute reasonable evasive measures; (g) failing to stop and provide information to the injured Plaintiff as required by Pennsylvania's "hit and run" statute, 75 Pa.C.S.A. §§ 3741-3755; and (h) violation of the statutes of the Commonwealth of Pennsylvania with regard to the operation of a motor vehicle. 21. The injuries of Plaintiff were caused solely and wholly by reason of the negligence of Heck, and were not caused or contributed thereto by any negligence on the part of Plaintiff. 22. Plaintiff would not have incurred injuries absent the negligent or otherwise tortuous conduct of Defendant Heck. WHEREFORE, Plaintiff respectfully requests judgment against Heck, jointly and severally with Swift, for an amount in excess of the limits of arbitration, exclusive of interests and costs. COUNT II (NEGLIGENCE PER SE) Plaintiff, Billy L. Wiggins v. Defendant, Jeremy Heck 23. Paragraphs 1 through 22 above are incorporated herein by reference as if more fully set forth at length. !•i Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 24. Heck's failure to stop and provide information to the injured Plaintiff as required by Pennsylvania's "hit and run" statute, 75 Pa.C.S.A. §§ 3741-3755, constitutes negligence per se. 25. Plaintiff hereby expressly relies on the doctrine of negligence per se to show fault, liability and/or negligence of Heck, jointly and severally with Swift, thus subjecting Plaintiff to an increased risk of harm and injury that were a substantial factor in causing and/or contributing to the cause of the serious and permanent injuries and other losses sustained by Plaintiff. WHEREFORE, Plaintiff respectfully requests judgment against Defendant Heck, jointly and severally with Defendant Swift, for an amount in excess of the limits of arbitration, exclusive of interests and costs. COUNT III (NEGLIGENCE-RESPONDEAT SUPERIOR) Plaintiff, Billy L. Wiggins v. Defendant, Swift Transportation Co., Inc. 26. Paragraphs 1 through 25 above are incorporated herein by reference as if more fully set forth at length. 27. Swift is vicariously liable for the negligence, carelessness and other tortuous conduct of all of his agents, ostensible agents, employees, representatives and/or 6 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 independent contractors, including named Heck, under the Doctrine of Respondeat Superior. WHEREFORE, Plaintiff respectfully requests judgment against Swift, jointly and severally with Heck, for an amount in excess of the limits of arbitration, exclusive of interests and costs. 3 Date Respectfully submitted, McCarthy Weisberg Cummings, P.C. Larr?A. ~sberg, Esquire Sup. Ct. I.D. #83410 Derrek W. Cummings, Esquire Sup. Ct. I.D. #83286 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorneys for Plaintiff 7 MAR-05-2008 15:09 From:DRUG MART 440 365 9839 COuAMI 1br the PWn#R 2041 HER Shoo Gmnfnps, P.C. HNRW p, PA 17103.1024 (717) =14M7 VER_IFM&D TOlld To:717 233 8133 P.2 1. Billy L. Wiggins, verlfy that I em the Plaintiff in the foregoing Complaint and that the facts set forth therein are true and correct to the hest of my knowledge, Information, and belief; and that this verification is subject to the penalties of 18 Pe,C.S. § 4809 relative to unswom f iolfic ation to authorities. t Dated: .,,., Zao6. Billy L. ggi Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Complaint upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) McCarthv Weisbera Cumminas_ P_C_ 3Date Attorney for Plaintiff Sup. Ct. 1. D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) r7lM C:) 3V 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) BILLY L. WIGGINS, vs. JEREMY HECK AND SWIFT TRANSPORTATION COMPANY, INC. No. 08-565 , Civil 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: Tarry A. WeiGherg-Eaq (Name and Address) 2041 Herr Street, Harrisburg PA 17103 (b) for defendants: , Timnrh:v A- Mnntgamery, Esq. (Name and Address) Two PPG Place, Suite 400, Pittsburgh, PA 15222 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 4/l h/0R Signature Timothy A. Montgomery Print your name Date: -1 112 h/ns Attorney for Swift Tran portation 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. ?`'' ?? ? -?" "" „r? j 3 ?? ? ,_, ? Y 1 ,...? 1 7.o^s '.? ?' a ?? .,.._ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Billy L. Wiggins, Plaintiff, V. CIVIL DIVISION G.D. No. 08-565 Issue No. Jeremy Heck and Swift Transportation Co., Inc., PRELIMARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant. Code: Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy A. Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Billy L. Wiggins, CIVIL DIVISION Plaintiff, G.D. No. 08-565 V. Jeremy Heck and Swift Transportation Co., Inc., Defendant. PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Swift Transportation Co., Inc. by and through its counsel, DICKIE, McCAMEY & CHILCOTE, JOHN T. PION, ESQUIRE and TIMOTHY A. MONTGOMERY, ESQUIRE and files these Preliminary Objections to Plaintiff's Complaint, in support of which it avers the following: 1. This cause of action arises out of an alleged August 25, 2007 tractor trailer pedestrian accident that occurred at the Petro Stopping Center (hereinafter Petro) located at 1201 Harrisburg Avenue, Route 11, Carlisle, Cumberland County, Pennsylvania 17013. Plaintiff contends that he exited the Petro store by foot and proceeded to walk across the fueling area of the Petro store carrying his coffee, when he was allegedly struck by a tractor-trailer owned by Swift Transportation Co. (See Plaintiffs Complaint at 116,7.) 1. PRELIMINARY OBJECTIONS TO COUNT II NEGLIGENCE PER SE AND PARAGRAPHS 11 AND 2066 OF PLAINTIFF'S COMPLAINT PREMISED ON POST ACCIDENT NEGLIGENCE PURSUANT TO PA.R.C.P.1028(a)(4) 2. The averments set forth in Paragraph 1 above are incorporated herein by reference as if set forth herein at length. 3. Plaintiff has asserted claims for negligence per se for a violation of 75 Pa.C.S.A §§ 3741-3755 in Count H and general negligence predicated on a violation of 75 Pa.C.S.A §§ 3741-3755 in paragraphs 11 and 20(g) of his Complaint essentially asserting that Defendant is guilty of hit and run and other post accident conduct. (See Plaintiff's Complaint at Count H paragraphs 23-25 and paragraphs 11 and 20(g)). 4. Significantly, all of the conduct upon which Plaintiff predicates these negligence claims is alleged to have occurred after the alleged subject accident and after the plaintiff was allegedly struck. More specifically, in Count II Plaintiff alleges that by failing to stop and provide information to the injured Plaintiff, Defendant subjected Plaintiff to "an increased risk of harm and injury" that was a substantial factor in causing and/or contributing to the cause of serious and permanent injuries and other losses sustained by Plaintiff. (See Plaintiff's Complaint at Paragraph 25.) 5. Similarly, in Paragraph 20(g) Plaintiff alleges that Defendant's failure to stop and provide information was a direct and proximate cause of Plaintiff's pain, suffering, injuries and other losses. 6. Plaintiff has asserted these negligence claims on Defendants alleged failure to stop and provide information to the injured Plaintiff as required by 75 Pa.C.S.A. §§ 3741-3755, despite the fact that Plaintiff has not set forth an allegation that Defendant was charged with violating said statute. 7. Further, after conducting an investigation into the events and circumstances surrounding the subject accident, prompted by a telephone call made by Plaintiff four days after the accident, Defendant was not charged with any violation of the Pennsylvania Motor Vehicle Code by the Middlesex Township Police Department 2 8. Because all of the negligent conduct upon which Plaintiff's negligence per se claim is based pertains solely to post-accident activities, said alleged actions or inactions, specifically Defendant's failure to stop and provide information to the injured Plaintiff, did not as a matter of law, cause the accident or any injuries or damages arising from the accident. 9. Causation is essential to any negligence claim. As post accident conduct could not and did not cause or contribute to any injuries or damages the conduct alleged in Count II and paragraphs 11 and 20(g) of Plaintiff's Complaint is not actionable. 10. Therefore, Count II and Paragraphs 11 and 20(g) of Plaintiff's Complaint should be stricken from Plaintiff's Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court grant these Preliminary Objections and strike and dismiss Count U of Plaintiff's Complaint and Paragraphs 11 and 20 (g). II. PRELIMINARY OBJECTIONS PURSUANT TO PA. R.C.P.1028(a)(3) 11. The averments set forth in Paragraphs 1 through 10 above are incorporated herein by reference as if the same were set forth herein at length. 12. In Paragraph 11, Paragraph 20(g) and Count II, Plaintiff has broadly asserted that the Defendant violated 75 Pa.C.S.A. §§3741-3755 as Defendant failed to stop and provide information to the Plaintiff. 13. 75 Pa.C.S.A. §§3741-3755 contains numerous statutes set forth in various sections and subsections. 3 14. Plaintiff's Complaint fails to allege which statutes contained in this broad section of the Pennsylvania Code that the Defendant had violated and as such is so vague that defendants are unable to prepare an adequate defense to these allegations. 15. The allegation that Defendant violated 75 Pa.C.S.A. §§3741-3755 is an extremely general allegation of negligence, is contrary to the specificity required of pleadings in Pennsylvania and as such allows Plaintiffs to introduce new theories of recovery at any time prior to trial.' 16. Further, Plaintiff has set forth allegations in paragraphs 20 (d) and (h) which do not adequately inform Objecting Defendant of relevant issues that they must defend against, specifically Paragraph 20 of the Complaint contains overly vague, general and broad averments as follows: 20. The pain, suffering, injuries and other losses of Plaintiff were the direct and proximate cause of the negligence of Heck, acting as an agent, employee, representative and/or independent contractor, who conducted the business of Swift within the scope of his authority, employment and/or job duties as follows: (d) careless operation of a tractor-trailer vehicle; (h) violation of the statutes of the Commonwealth of Pennsylvania with regard to the operation of a motor vehicle. See Plaintiff's Complaint at paragraph 20. 17. The above-referenced allegations contained in Plaintiff's Complaint lack the requisite specificity required by Rule 1019 of the Pennsylvania Rules of Civil Procedure and therefore should be stricken from Plaintiff's Complaint. Alternatively, Plaintiff should be compelled to file a more specific pleading which explicitly states the factual basis for the legal conclusion asserted in the above referenced paragraphs. 1 It should be noted that 75 Pa.C.S.A. §§3741-3755 contains statutes relating to spilled cargo, unattended vehicles, clearance of the scene, etc. which are not applicable to the facts of the alleged subject accident. 4 WHEREFORE, Defendant respectfully request that this Honorable Court grant these Preliminary Objections and strike and dismiss Count II and Paragraphs I I and 20(g), (d) and (h), or in the alternative compel Plaintiffs to file a more specific Complaint with regard to the allegations set forth in Count II and Paragraphs I 1 and 20 (g),(d) and (h). Respectfully submitted, DICKIE, McCAMEY & CHILCOTE, P.C BY: John T. Pion, Esquire Timothy A. Montgomery, Esquire Attorneys for Defendant Swift Transportation Co. Inc. 5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff V. NO. 08-565 Civil Term CIVIL ACTION - LAW JEREMY HECK and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford St. Carlisle, Pennsylvania 17013-3302 717-249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION, 32 South Bedford St. Carlisle, Pennsylvania 17013-3302 717-249-3166 2 Counsel for the Plaintdf McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. JEREMY HECK CIVIL ACTION - LAW and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC. Defendants COMPLAINT Plaintiff, Billy L. Wiggins, by and through his counsel, McCarthy Weisberg Cummings, P.C., hereby files the following Complaint-Civil Action (hereinafter "Complaint") asserting a claim for damages against the Defendants set forth herein, jointly and severally, as follows: 1. Plaintiff, an adult individual, is a resident and citizen of the State of Ohio, residing at 1306 Middle Avenue, Elyria, Ohio 44035. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 2. Defendant Jeremy Heck (hereinafter "Heck"), is an adult individual with a business address of c/o Swift Transportation Co., Inc., 2200 South 75th Avenue, Phoenix, Arizona 85043. At all times relevant and material hereto, Heck was a licensed commercial truck driver employed by Defendant Swift Transportation Company., Inc. (hereinafter "Swift"). 3. Swift is an Arizona corporation with a business address of 2200 South 75th Avenue, Phoenix, Arizona 85043. 4. On August 25, 2006, Plaintiff was a licensed commercial truck driver employed by D & D Transport, Inc. (hereinafter "D & D"), a commercial trucking company with a business address of 3290 College Street, Newberry, South Carolina 29108. 5. On August 25, 2006, at approximately 6:30 p.m., Plaintiff, in the course of his employment with D & D, was at the Petro Stopping Center (hereinafter "Petro") truck stop located at 1201 Harrisburg Avenue, Route 11, Carlisle, Cumberland County, Pennsylvania 17013. 6. On the aforementioned date and time, Plaintiff exited the Petro store by foot and proceeded to walk across the fueling area of the Petro, carrying his cup of coffee, when he was struck forcefully by a tractor-trailer being driven by Heck, causing Plaintiff to be thrown backwards, and causing Plaintiff to suffer serious, permanent and disabling injuries more particularly set forth herein. 7. At the time of the aforesaid collision, Heck was driving a tractor-trailer owned by Swift and in the course of his employment with Swift. 2 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 8. Subsequently to being hit by the Swift tractor-trailer, Plaintiff made eye contact with Heck and yelled at Heck that Heck had struck Plaintiff with his moving truck. 9. Subsequent to Plaintiff advising Heck that Heck had struck Plaintiff, Heck said nothing to Plaintiff and drove his truck away onto Route 11 North. 10. Plaintiff was able to drive his own D & D truck and catch up with Heck on Route 11 North; however Heck did not stop when contacted by Plaintiff on his CB radio. 11. Heck failed to stop and provide any information to Plaintiff as required by Pennsylvania's "hit and run" statute, 75 Pa.C.S.A. §§3741-3755. 12. Plaintiff identified Heck by writing down the vehicle number, 589092, on the trailer of the Swift tractor-trailer that struck Plaintiff. 13. As a result of the aforesaid collision, Plaintiff suffered serious, permanent and disabling injuries including, but not limited to, the following: left anterior shoulder contusion and rotator cuff tendonitis, cervical strain, rotator cuff strain, and chronic left shoulder and neck pain. 14. As a result of the aforesaid collision, on May 22, 2007, Plaintiff was assessed an eight percent impairment rating to his left upper extremity for pain in the left shoulder by Frank K. Noojin, M.D. 15. As a result of the aforesaid collision, Plaintiff has had to incur and continues to incur expenses for medical care in an effort to treat Plaintiffs injuries. 3 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 16. As a result of the aforesaid collision, Plaintiff has been and continues to be unable to properly attend to and perform his usual daily duties, occupations, labors and leisure pursuits. 17. As a result of the aforesaid collision, Plaintiff has suffered and continues to suffer great loss and depreciation of his earnings capacity. 18. As a result of the aforesaid collision, Plaintiff has suffered and continues to suffer from severe physical pain, mental anguish, humiliation and emotional distress. COUNTI (NEGLIGENCE) Plaintiff, Billy L. Wiggins v. Defendant, Jeremy Heck 19. Paragraphs 1 through 18 above are incorporated herein by reference as if more fully set forth at length. 20. The pain, suffering, injuries and other losses of Plaintiff were the direct and proximate cause of the negligence of Heck, acting as an agent, employee, representative and/or independent contractor, who conducted the business of Swift within the scope of his authority, employment and/or job duties as follows: (a) failing to properly keep his tractor-trailer vehicle under adequate control; (b) driving a tractor-trailer vehicle without proper regard for the safety of persons; (c) failing to maintain a proper lookout ahead; (d) careless operation of a tractor-trailer vehicle; 4 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (e) failing to warn Plaintiff of his approach; (f) failing to stop or otherwise execute reasonable evasive measures; (g) failing to stop and provide information to the injured Plaintiff as required by Pennsylvania's "hit and run" statute, 75 Pa.C.S.A. §§ 3741-3755; and (h) violation of the statutes of the Commonwealth of Pennsylvania with regard to the operation of a motor vehicle. 21. The injuries of Plaintiff were caused solely and wholly by reason of the negligence of Heck, and were not caused or contributed thereto by any negligence on the part of Plaintiff. 22. Plaintiff would not have incurred injuries absent the negligent or otherwise tortuous conduct of Defendant Heck. WHEREFORE, Plaintiff respectfully requests judgment against Heck, jointly and severally with Swift, for an amount in excess of the limits of arbitration, exclusive of interests and costs. COUNT II (NEGLIGENCE PER SE) Plaintiff, Billy L. Wiggins v. Defendant, Jeremy Heck 23. Paragraphs 1 through 22 above are incorporated herein by reference as if more fully set forth at length. 5 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 24. Heck's failure to stop and provide information to the injured Plaintiff as required by Pennsylvania's "hit and run" statute, 75 Pa.C.S.A. §§ 3741-3755, constitutes negligence per se. 25. Plaintiff hereby expressly relies on the doctrine of negligence per se to show fault, liability and/or negligence of Heck, jointly and severally with Swift, thus subjecting Plaintiff to an increased risk of harm and injury that were a substantial factor in causing and/or contributing to the cause of the serious and permanent injuries and other losses sustained by Plaintiff. WHEREFORE, Plaintiff respectfully requests judgment against Defendant Heck, jointly and severally with Defendant Swift, for an amount in excess of the limits of arbitration, exclusive of interests and costs. COUNT III (NEGLIGENCE-RESPONDEAT SUPERIOR) Plaintiff, Billy L. Wiggins v. Defendant, Swift Transportation Co., Inc. 26. Paragraphs 1 through 25 above are incorporated herein by reference as if more fully set forth at length. 27. Swift is vicariously liable for the negligence, carelessness and other tortuous conduct of all of his agents, ostensible agents, employees, representatives and/or 6 Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 independent contractors, including named Heck, under the Doctrine of Respondeat Superior. WHEREFORE, Plaintiff respectfully requests judgment against Swift, jointly and severally with Heck, for an amount in excess of the limits of arbitration, exclusive of interests and costs. Date Respectfully submitted, McCarthy Weisberg Cummings, P.C. Larry A. Weisberg, Esquire Sup. Ct. I.D. #83410 Derrek W. Cummings, Esquire Sup. Ct. I.D. #83286 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorneys for Plaintiff 7 MAR-05-2008 15:09 From:DRUG MART 440 365 9839 G6u" *w 00 PhAn" 2041 M 8ttmM Curin g, P.C. HOWOM, PA 17103.1124 (717) 2364M7 VERFIC U-ON To:717 233 8133 P.2 1. SIDy L. Wiggins, vwlfy that I am the Plaintiff in the foregoing Complaint and that the facts set forth therein are true and correct to the Meet of my knowledge, information, and belief; and that this verif cation is subject to the penalties of 18 PS.C.S. § 4809 relative to unawom falsification to authoriUse. Dated: -2006. Billy L iggi Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Complaint upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) McCarthy? Weisberg Cummings, P.C. Date L rry A. Vyeisberg, Esq. Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that true and correct copies of the foregoing Preliminary Objections to Plaintiff's Complaint have been served this 2bday of March, 2008, by U.S. first-class mail, postage pre-paid to parties listed below. Larry A. Weisberg, Esquire McCarthy Weisberg Cummings, P.C. 2041 Herr St. Harrisburg, PA 17103-1624 Counsel for Plaintiff Dickie, McCamey & Chilcote, P.C rl ? Timothy A. Montgomery, Eire John T. Pion, Esquire 2PPG Place, Suite 400 Pittsburgh, PA 15222 Attorneys for the Swift Transportation ? c? ?? -r? c° ? ? ? ?,:r ?`? ;;?3 r,. s ?, :': ??? ? `, r'"? „? "? jt?Y? ?'~ ... r ?? ?? '..?j f:'? :.C, V Gounsel for the Plaintiff PAcCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff V. JEREMY HECK NO. 08-565 Civil Term CIVIL ACTION - LAW and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC Defendants PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate the Complaint in the above captioned matter. Apr ; l 1-21 Date Respectfully submitted, McCarthy Weisberg Cummings, P.C La1rlj A. Weisberg, Esquire Sup. Ct. I.D. #83410 Derrek W. Cummings, Esquire Sup. Ct. I.D. #83286 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorneys for Plaintiff Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe to Reinstate Complaint upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) McCarthy Weisberg Cummings, P.C. Date Larry/N. Weisberg, Esq. Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff a 0 r-a l? t F; c.: ? t Perini Services Southampton Manor, Ltd. d/b/a Shippensburg Health Care Center, Petitioner V. In the Court of Common Pleas of Cumberland County, Pennsylvania Docket No.: 08-567 Civil Term Walter M. Patterson, III, Individually, Larry E. Patterson, Individually and as Legal Representative for Walter M. Patterson, III, and Civil Action - Law Eddie L. Collins, Jr., Individually and as Power of Attorney for Walter M. Patterson, III, Respondents ORDER AND NOW, this ( day of &AJ , 2008, upon review of Shippensburg Health Care Center's Petition for Preliminary Injunction and upon a hearing conducted on April 9, 2008, THE FOLLOWING ORDER IS HEREBY GRANTED: The Preliminary Injunction will remain in effect until a trial on the merits. 2. Respondent Eddie L. Collins, Jr. is hereby ordered to produce and submit all documents required by the Cumberland County Assistance Office in support of their appeal to the Department of Public Welfare for Medical Assistance on behalf of the Resident no later than three (3) days from the date of this Order. Respondent Eddie Collins is hereby ordered to produce and file with this Court a record of accounting as to the disposition of Resident's real property and liquid assets since February 3, 2003 within forty-five (45) days of the date of this Order. 4. A stay is hereby placed on any transactions involving the assets of Respondent Walter M. Patterson, III. r :'+1( ?` jrrl? i? Sz :6 VII, 1 1 UY HE 5. Respondent is hereby ordered to surrender assets to Shippensburg Health Care Center sufficient to satisfy the outstanding balance to pay for Resident's ongoing nursing care by Shippensburg Health Care Center within forty-five (45) days of the date of this Order. 6. Respondent Eddie Collins is hereby ordered to complete a new Direct Deposit Form provided by the Pennsylvania State Employees Retirement System ("PSERS") with Petitioner's counsel's bank account information within ten (10) days of the date of this Order to deposit Resident's monthly pension payments and any death benefit in an escrow account until further Order of this Court. 7. Respondent Eddie Collins is hereby ordered to contract with a licensed realtor within thirty (30) days of the date of this Order to list for sale the real property of Walter M. Patterson, III located at 31 N. 18th Street, Harrisburg, Pennsylvania, in accordance with Medicaid regulations, and Respondent Eddie Collins shall place the net proceeds of this sale in an escrow account held by Counsel for Petitioner until further Order of this Court. BY THE COURT, M.L. Ebert, Jr., Judge Distribution: Andrew R. Eisemann, Esq., Capozzi & Associates, P.C., 2933 N. Front Street, Harrisburg, PA 17110 ??Valter M. Patterson, III, Shippensburg Health Care Center, 121 Walnut Bottom Road, Shippensburg, PA 17257 /Larry E. Patterson, 4284 Berkley Court, King George, VA 22485 ?Eddie L. Collins, Jr., 2234 Penn Street, P. O. Box 2105, Harrisburg, PA 17105 COP 'QS rn.tat tf-l 2 No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. SWIFT TRANSPORTATION CO., INC., Defendant. CIVIL ACTION - LAW Filed on behalf of Defendant Jeremy Heck No. 08-565 Civil Term Counsel of record for this party: Issue No. John T. Pion, Esquire PA I.D. # 43675 ENTRY OF APPEARANCE Timothy A. Montgomery, Esquire PA I.D. # 94179 Code: DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED 1 No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, CIVIL ACTION - LAW No. 08-565 Civil Term V. SWIFT TRANSPORTATION CO., INC., Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of the defendant, JEREMY HECK, regarding the above-referenced matter. A JURY TRIAL IS DEMANDED. DICKIE, McCAMEY & CHILCOTE, P.C. gy, p/? ,q' r-''-? John T. Pion, Esquire Timothy A. Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant Jeremy Heck A- No. 08-565 Civil Term CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served upon counsel of record by U.S. mail, postage prepaid, this 0'16 day of April, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff) DICKIE, McCAMEY & CHILCOTE, P.C. ?^r By 7 Timothy A. Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant Jeremy Heck ,? Cy ? c? c -» ?' 2 - rT ? ? , ..?, ? -s 9"7'y ?.-- ? .?? 7j ?: ? t f ,? % i _,- .? ,`.? ` ? ? ? ?"?'7 ` '^ t ;:: I . .y IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. JEREMY HECK CIVIL ACTION - LAW and SWIFT TRANSPORTATION CO., INC. JURY TRIAL DEMANDED Defendants AFFIDAVIT OF SERVICE OF COMPLAINT I, Larry A. Weisberg, Esquire, attorney for Billy L. Wiggins, being duly sworn according to law do depose and make the following Affidavit regarding service of Plaintiffs Complaint on Defendant Jeremy Heck as follows: 1. On or about April 24, 2008, Defendant Jeremy Heck was served by the Tioga County Sheriffs Office by handing a copy of the Complaint to Susan Heck at the Defendant's address of 624 E. Main Street, Lot #6, Elkland, PA 16920. A copy of the Return of Service is attached hereto as Exhibit "A." Respectfully submitted, McCarthy Weisberg Cummings, P.C. 11-2d, -OOP Date Sworn and subscribed Before me this 28th day of April, 2008 is /y7-?6,U- Notary Public MY COMMISSION EXPIRES: 1Q/ox1aa/co Larr ZA. Weisberg, Esquire Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff A AL N OTR WE Linda M Naca NOTARY PUBLIC City of Harrisburg, Dauphin County M Commission E ' as 10/0?J2010 Office Phone: 570-724-3491 THOMAS G. SMITH Chief Deputy TIOGA COUNTY SHERIFF'S OFFICE JOHN L. PERRY, SHERIFF 116 MAIN STREET WELLSBORO, PENNSYLVANIA 16901 RETURN OF SERVICE ATTORNEY/PLAINTIFF NOTIFICATION MCCARTHY WEISBERG CUMMINGS 2041 HERR STREET HARRISBURG PA 17103-1624 BILLY L WIGGINS PLAINTIFF No: CUMBERLAND COUNTY VS JEREMY HECK DEFENDANT Writ: NOTICE / COMPLAINT Served: JEREMY HECK by handing to SUSAN HECK ° ,Ap'ril 24, 2008 12:27 PM 624 E MAIN STRET LOT ## 6 ELKLAND PA 16920 So Answers THOMAS G. SMITH, CHIEF DEPUTY Prison Phone: 570-724-5911 BRUCE CAHILLY Solicitor P - 217-08 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Affidavit of Service of Complaint upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) McCarthy Weisberg Cummings, P.C. Date Larry A. Weisberg, Esquire Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff cx? Yt 7il i - 1 C? 7 =4 Pi 7 No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. SWIFT TRANSPORTATION CO., INC., Defendant. CIVIL ACTION - LAW No. 08-565 Civil Term Issue No. NOTICE OF SERVICE OF DISCOVERY REQUESTS Code: Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED -4 No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, CIVIL ACTION - LAW No. 08-565 Civil Term V. SWIFT TRANSPORTATION CO., INC., Defendant. NOTICE OF SERVICE OF DISCOVERY REQUESTS TO: Prothonotary Kindly take notice that the First Set of Interrogatories Directed to Plaintiff, a Request for Production of Documents Directed to Plaintiff and a Medical Authorization was served upon, Larry A. Weisberg, Esq., 2041 Herr Street, Harrisburg, PA 17103-1624 on this 9th day of May, 2008. Respectfully submitted, DICKIE, McCAMEY & CHILCOTE, P.C. By John T. Pion, Esquire Timothy A. Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 Counsel for Defendants tl No. 08-565 Civil Term CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Service of Discovery Requests was served upon counsel of record by U.S. mail, postage prepaid, this 9 h day of May, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff) DICKIE, McCAMEY & CHILCOTE, P.C. By `] A Timothy A. Montgomery squire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant r Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. JEREMY HECK CIVIL ACTION - LAW and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC Defendants FIRST AMENDED COMPLAINT Plaintiff, Billy L. Wiggins, by and through his counsel, McCarthy Weisberg Cummings, P.C., hereby files the following First Amended Complaint - Civil Action (hereinafter "First Amended Complaint") asserting a claim for damages against the Defendants set forth herein, jointly and severally, as follows: 1. Plaintiff, an adult individual, is a resident and citizen of the State of Ohio, residing at 1306 Middle Avenue, Elyria, Ohio 44035. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 2. Defendant Jeremy Heck (hereinafter "Heck"), is an adult individual with a business address of c/o Swift Transportation Co., Inc., 2200 South 75th Avenue, Phoenix, Arizona 85043. At all times relevant and material hereto, Heck was a licensed commercial truck driver employed by Defendant Swift Transportation Company., Inc. (hereinafter "Swift") 3. Swift is an Arizona corporation with a business address of 2200 South 75th Avenue, Phoenix, Arizona 85043. 4. On August 25, 2006, Plaintiff was a licensed commercial truck driver employed by D & D Transport, Inc. (hereinafter "D & D"), a commercial trucking company with a business address of 3290 College Street, Newberry, South Carolina 29108. 5. On August 25, 2006, at approximately 6:30 p.m., Plaintiff, in the course of his employment with D & D, was at the Petro Stopping Center (hereinafter "Petro") truck stop located at 1201 Harrisburg Avenue, Route 11, Carlisle, Cumberland County, Pennsylvania 17013. 6. On the aforementioned date and time, Plaintiff exited the Petro store by foot and proceeded to walk across the fueling area of the Petro, carrying his cup of coffee, when he was struck forcefully by a tractor-trailer being driven by Heck, causing Plaintiff to be thrown backwards, and causing Plaintiff to suffer serious, permanent and disabling injuries more particularly set forth herein. 7. At the time of the aforesaid collision, Heck was driving a tractor-trailer owned by Swift and in the course of his employment with Swift. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 8. Subsequently to being hit by the Swift tractor-trailer, Plaintiff made eye contact with Heck and yelled at Heck that Heck had struck Plaintiff with his moving truck. 9. Subsequent to Plaintiff advising Heck that Heck had struck Plaintiff, Heck said nothing to Plaintiff and drove his truck away onto Route 11 North. 10. Plaintiff was able to drive his own D & D truck and catch up with Heck on Route 11 North; however Heck did not stop when contacted by Plaintiff on his CB radio. 11. Plaintiff identified Heck by writing down the vehicle number, 589092, on the trailer of the Swift tractor-trailer that struck Plaintiff. 12. As a result of the aforesaid collision, Plaintiff suffered serious, permanent and disabling injuries including, but not limited to, the following: left anterior shoulder contusion and rotator cuff tendonitis, cervical strain, rotator cuff strain, and chronic left shoulder and neck pain. 13. As a result of the aforesaid collision, on May 22, 2007, Plaintiff was assessed an eight percent impairment rating to his left upper extremity for pain in the left shoulder by Frank K. Noojin, M.D. 14. As a result of the aforesaid collision, Plaintiff has had to incur and continues to incur expenses for medical care in an effort to treat Plaintiff's injuries. 15. As a result of the aforesaid collision, Plaintiff has been and continues to be unable to properly attend to and perform his usual daily duties, occupations, labors and leisure pursuits. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 16. As a result of the aforesaid collision, Plaintiff has suffered and continues to suffer great loss and depreciation of his earnings capacity. 17. As a result of the aforesaid collision, Plaintiff has suffered and continues to suffer from severe physical pain, mental anguish, humiliation and emotional distress. COUNTI (NEGLIGENCE) Plaintiff, Billy L. Wiggins v. Defendant, Jeremy Heck 18. Paragraphs 1 through 17 above are incorporated herein by reference as if more fully set forth at length. 19. The pain, suffering, injuries and other losses of Plaintiff were the direct and proximate cause of the negligence . of Heck, acting as an agent, employee, representative and/or independent contractor, who conducted the business of Swift within the scope of his authority, employment and/or job duties as follows: (a) failing to properly keep his tractor-trailer vehicle under adequate control; (b) driving a tractor-trailer vehicle without proper regard for the safety of persons; (c) failing to maintain a proper lookout ahead; (d) failing to warn Plaintiff of his approach; and (e) failing to stop or otherwise execute reasonable evasive measures. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 20. The injuries of Plaintiff were caused solely and wholly by reason of the negligence of Heck, and were not caused or contributed thereto by any negligence on the part of Plaintiff. 21. Plaintiff would not have incurred injuries absent the negligent or otherwise tortuous conduct of Defendant Heck. WHEREFORE, Plaintiff respectfully requests judgment against Heck, jointly and severally with Swift, for an amount in excess of the limits of arbitration, exclusive of interests and costs. COUNT II (NEGLIGENCE-RESPONDEAT SUPERIOR) Plaintiff, Billy L. Wiggins v. Defendant, Swift Transportation Co., Inc. 22. Paragraphs 1 through 21 above are incorporated herein by reference as if more fully set forth at length. 23. Swift is vicariously liable for the negligence, carelessness and other tortuous conduct of all of his agents, ostensible agents, employees, representatives and/or independent contractors, including named Heck, under the Doctrine of Respondeat Superior. Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 WHEREFORE, Plaintiff respectfully requests judgment against Swift, jointly and severally with Heck, for an amount in excess of the limits of arbitration, exclusive of interests and costs. 5-Jb-06? Date Respectfully submitted, McCarthy Weisberg Cummings, P.C. (XatryA. Weisberg, Esquire Sup. Ct. I.D. #83410 Derrek W. Cummings, Esquire Sup. Ct. I.D. #83286 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorneys for Plaintiff Counsel for the Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing First Amended Complaint upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) Date McCarthy Weisberg Cummings, P.C. 4LA. Weisberg, Esq. Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff C) a C C:tp -11 23 tSJ s Ci , No. 08-565 Civil Term R IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. JEREMY HECK and SWIFT TRANSPORTATION CO., INC., CIVIL ACTION - LAW No. 08-565 Civil Term Issue No. ANSWER AND NEW MATTER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Defendant. Code: Filed on behalf of Defendants Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, CIVIL ACTION - LAW No. 08-565 Civil Term V. JEREMY HECK and SWIFT TRANSPORTATION CO., INC. Defendant. ANSWER AND NEW MATTER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND NOW, come the Defendants Swift Transportation Co., Inc. and Jeremy Heck, by and through their counsel, Dickie, McCamey & Chilcote, P.C., John T. Pion, Esquire and Timothy A. Montgomery, Esquire and file this Answer and New Matter, in support of which aver as follows: After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 1 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 2. After reasonable investigation, these Defendants do not know what time periods plaintiff deems relevant. Therefore, after reasonable investigation, they lack sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 2 of Plaintiff's Complaint. Therefore, as alleged, said allegations are denied. By way of further response, Defendant Jeremy Heck is an adult individual with an address of 624 East Main Street, Lot 6, Elkland, PA. Defendant Jeremy Heck was a licensed commercial truck driver employed by Defendant Swift Transportation Co. at the time of the alleged subject accident. No. 08-565 Civil Term 3. Admitted. 4. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as,to the truth or falsity of the allegations contained in paragraph 4 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 5. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate the belief as to the truth or falsity of the allegations contained in paragraph 5 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 6. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 6 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 7. The allegations contained in paragraph 7 of Plaintiff's complaint state legal conclusions, no response is required. To the extent a response is deemed required, said allegations are denied. By way of further response, these Defendants deny that a collision occurred. It is admitted that Heck was an employee of Swift at the time of the alleged collision. All further, additional or contrary allegations are denied. 8. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 8 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. No. 08-565 Civil Term 9. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 9 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 10. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 10 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 11. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 11 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 12. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 12 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 13. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 13 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. By way of further response, the allegations contained in paragraph 13 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response is deemed required, said allegations are denied. No. 08-565 Civil Term 14. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 14 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 15. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 15 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 16. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 16 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. By way of further response, the allegations contained in paragraph 16 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response is deemed required, said allegations are denied. 17. After reasonable investigation, these Defendants are without sufficient information or knowledge to formulate a belief as to the truth or falsity of the allegations contained in paragraph 17 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. COUNTI NEGLIGENCE (Plaintiff, Billy Wiggins v. Defendant Jeremy Heck) 18. In response to paragraph 18 of Plaintiff's Complaint, these Defendants incorporate herein by reference the averments set forth in paragraphs 1 through 17 above, as if the same were set forth herein at length. No. 08-565 Civil Term 19. The allegations contained in paragraph 19(a-e) of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response is deemed required, said allegations are denied. 20. The allegations set forth in paragraph 20 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response is deemed to be required, said allegations are denied. 21. The allegations contained in paragraph 21 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response is deemed to be required, said allegations are denied. COUNT II NEGLIGENCE/RESPONDEAT SUPERIOR (Plaintiff, Billy Wiggins v. Defendant, Swift Transportation Co., Inc.) 22. In response to paragraph 22 of Plaintiff's Complaint, these Defendants incorporate herein by reference the averments set forth in paragraphs 1 through 21 above, as if the same were set forth herein at length. 23. The allegations contained in paragraphs 23 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response is deemed to be required, said allegations are denied. WHEREFORE, these Defendants deny any and all liability to the plaintiff under any theory of law whatsoever and respectfully request that judgment be entered in their favor together with costs. No. 08-565 Civil Term NEW MATTER 24. These Defendants raise Plaintiff's contributory and/or comparative negligence as a complete and/or partial bar to Plaintiff's claims. 25. To the extent applicable based upon the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise Plaintiff's assumption of a known risk as a complete and/or partial bar to Plaintiff's claims. 26. To the extent applicable based upon the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise the applicable statute of limitations as a complete and/or partial bar to Plaintiff's claims. 27. These Defendants raise the Pennsylvania Motor Vehicle Financial Responsibility Law as a complete and/or partial bar to Plaintiff's claims. 28. To the extent applicable based upon the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise Plaintiff's failure to mitigate damages as a complete and/or partial bar to Plaintiff's claims. 29. These Defendants raise the acts and omissions of third parties over whom they had neither the right nor duty to control as a complete and/or partial bar to Plaintiff's claims. 30. These Defendants raise the superseding/intervening acts and omissions of third parties as a complete and/or partial bar to Plaintiff's claims. WHEREFORE, these Defendants deny any and all liability to Plaintiff under any theory of law whatsoever and respectfully request that judgment be entered in their favor together with costs. No. 08-565 Civil Term Respectfully submitted, DICKIE, McCAMEY & CHII.COTE, P.C. By John T. Pion, Esquire Timothy A. Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 Counsel for Defendants No. 08-565 Civil Term CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Answer and New Matter was served upon counsel of record by U.S. mail, postage prepaid, this day of June, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff ) DICKIE, McCAMEY & CHILCOTE, P.C. B Y Timothy A. Montgom , Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant No. 08-565 Civil Term VERIFICATION I, Timothy A. Montgomery, Esquire, verify that the facts set in Defendant's Answer and New Matter to Plaintiff's First Amended Complaint are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. I am authorized to make this verification on behalf of Defendants, Jeremy Heck and Swift Transportation Co., Inc. --dam ?. •-v+. Timothy A. Montgomery, Es ire DATED: June 16, 2008 2 a ?, ?7 M? ?? ? r??;.. ti.l `?i?] ?T ?w ?`: E , -? r ? -.s ;? ?`y ?? ?? _ _? ? cy f ? \l ? }? ?.sI ?y ? ` r. No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, V. SWIFT TRANSPORTATION CO., INC., CIVIL ACTION - LAW No. 08-565 Civil Term Issue No. NOTICE OF VIDEOTAPE DEPOSITION Defendant. Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, CIVIL ACTION - LAW No. 08-565 Civil Term V. SWIFT TRANSPORTATION CO., INC., Defendant. NOTICE OF VIDEOTAPE DEPOSITION TAKE NOTICE that the videotape deposition of BILLY L. WIGGINS will be taken for discovery and use at trial, pursuant to the Pennsylvania Rules of Civil Procedure, as amended, before a Notary Public duly authorized by law to administer oaths on Friday, June 27, 2008, at 1:00 p.m. at Dickie, McCamey & Chilcote, P.C., Two PPG Place, Suite 400, Pittsburgh, Pennsylvania, 15222 at which time you are invited to appear and to take such part as shall be fitting and proper. DICKIE, McCAMEY & CHILCOTE, P.C. By John T. Pion, Esquire Timothy Allan Montgom y, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant No. 08-565 Civil Term CERTIFICATE OF SERVICE I, Timothy Allan Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Deposition was served upon counsel of record by U.S. mail, postage prepaid, this day of June, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff DICKIE, McCAMEY & CHILCOTE, P.C. By !? Timothy Allan Montgom Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant r-l Q ? " T 1 {1 Yi?tr ? [71? q)7- Counsel for Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr St. Harrisburg, PA 17103-1624 (717) 238-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff V. NO. 08-565 Civil Term CIVIL ACTION - LAW JEREMY HECK and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC. Defendants : PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER Plaintiff Billy L. Wiggins, by and through his counsel, McCarthy Weisberg Cummings, P.C., files the following Preliminary Objections to Defendants' New Matter. I. FACTUAL AND PROCEDURAL BACKGROUND 1. On May 19, 2008, Plaintiff Billy L. Wiggins filed a First Amended Complaint against Defendants Jeremy Heck and Swift Transportation Co., Inc. • asserting claims of negligence and negligence - respondeat superior, respectively, against Defendants. 2. On or about June 16, 2008, Defendants filed an Answer and New Matter in response to Plaintiffs First Amended Complaint. II. PRELIMINARY OBJECTIONS A. Preliminary Objection Pursuant To Pa.R.Civ.P. 1028(a)(2) - Failure to Conform to Law or Rule of Court 3. Pennsylvania Rule of Civil Procedure 1030 provides that "a party may set forth as new matter any other material facts which are not merely denials of averments of the proceeding pleading." 4. The following paragraphs in Defendants' Answer and New Matter fail to conform to Pa. R.Civ.P. 1030 as they do not "set forth as new matter any other material facts which are not merely denials of averments of the proceeding pleading": 25, 26, 27, 28, 29, and 30. WHEREFORE, Defendants request that the forgoing paragraphs be stricken from Defendants' Answer and New Matter because they do not conform with Pennsylvania Rule of Civil Procedure 1030. 2 B. Preliminary Objection Pursuant To Pa.R.Civ.P. 1028(a)(3) - Insufficient Specificity in Pleading 5. In the alternative, the following averments are vague and plead without sufficient specificity: • Defendants' New Matter ¶ 25: "To the extent applicable based upon the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise Plaintiffs assumption of a known risk as a complete and/or partial bar to Plaintiffs claims." • Defendants' New Matter ¶ 26: "To the extent applicable based upon the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise the applicable statute of limitations as a complete and/or partial bar to Plaintiffs claims." • Defendants' New Matter 127: "These Defendants raise the Pennsylvania Motor Vehicle Financial Responsibility Law as a complete and/or partial bar to Plaintiffs claims." • Defendants' New Matter ¶ 28: "To the extent applicable based upon the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise Plaintiffs failure to mitigate damages as a complete and/or partial bar to Plaintiffs claims." • Defendants' New Matter 129: "These Defendants raise the acts and omissions of third parties over whom they had neither the right nor duty to control as a complete and/or partial bar to Plaintiffs claims." • Defendants' New Matter 130: "These Defendants raise the superseding/intervening acts of third parties as a complete and/or partial bar to Plaintiffs claims." 3 WHEREFORE, in the alternative, Plaintiff requests that the forgoing averments be stricken from the Defendants' Answer and New Matter because they are not plead with sufficient specificity. Respectfully submitted, McCarthy Weisberg Cummings, P.C. Date: - ' 2'- 0i By Duly A. Weisberg, Esq. Sup. Ct. I. D. #83410 2041 Herr St. Harrisburg, PA 17103-1624 (717) 238-5707 Fax: (717) 233-8133 Email: IweisbergO-mwcfirm.com Attorney for Plaintiff 4 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Preliminary Objections to Defendants' New Matter upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) McCarthy Weisberg Cummings, P.C. _,?- Z-4 Date Attorney for Plaintiff Sup. Ct. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) t7 ?_ r? r°: C d"' ?,- . { , ?.? ?: I _. -„i c?7 7 ? ?- No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, v. Plaintiff. SWIFT TRANSPORTATION CO., INC., and CIVIL ACTION - LAW No. 08-565 Civil Term Issue No. OBJECTION TO SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO 4009.21 JEREMY HECK Defendant. Code: Filed on behalf of Defendants Swift Transportation, Inc. and Jeremy Heck Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy A. Montgomery, Esquire PA. I.D. # 941,79 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, CIVIL ACTION - LAW Plaintiff, No. 08-565 Civil Term V. SWIFT TRANSPORTATION CO., INC., and JEREMY HECK Defendant. OBJECTION TO SUBPOENA PURSUANT TO RULE 4009.21 Defendants Swift Transportation, Co., Inc. and Jeremy Heck object to the proposed subpoena that is attached hereto as exhibit 1 for the following reasons: The claim file sought through the attached subpoena was prepared by a representative of the Defendants and contains mental impressions, conclusions and opinions respecting the value and merit of this claim, the viable defenses to this claim, and the strategy and tactics that should be undertaken with respect to both the settlement and litigation of this claim. As such, there is information contained in the claims file that is not discoverable pursuant to Pa.R.C.P. 4003.3. DICKIE, McCAMEY & CHILCOTE, P.C. John T. Pion, Esquire Timothy A. Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendants Swift Transportation Co. Inc and Jeremy Heck IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS ; Plaintiff V. JEREMY HECK NO. 08-565 Civil Term CIVIL ACTION - LAW and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff Billy L. Wiggins intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. J _ Date: ( '0`) J U? L-aiiy r)f. vv uciy, c*gU11U Supreme ourt ID # 83410 Attorney for Defendant McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. CIVIL ACTION - LAW JEREMY HECK and JURY TRIAL DEMANDED SWIFT TRANSPORTATION CO., INC. Defendants TO: Mohave Transportation Insurance Company P.O. Box 29243, Phoenix AZ 85038-9243 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A full and complete copy of the claim file bearing claim number 1060828064416 and any related claim files relating to an incident which was reported to have occurred on or about August 25, 2006, in Carlisle PA involving Swift Transportation Co driver Jeremy Heck and claimant Billy D. Wiggins. In addition to any written documentation include all electronic files and a-mails Photos, recordings, transcripts of any statements payment logs etc at McCarthy Weisberg Cummings P.C. 2041 Herr Street Harrisburg Pennsylvania 17103. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Attorney's Name: Larry A. Weisber Address: 2041 Herr Street, Harrisburg Pennsylvania 17103-1624 Telephone: (717) 238-5707 Supreme Court ID #: 83410 Attorney for: Plaintiff Billy D. Wiggins BY THE COURT: DATE: Seal of the Court Prothonotary Deputy ,? ? ?+? T sT *?.. ? ;. ?, ?Y ?,. t, ?k l-?7t6? No. 08-565 Civil Term CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Objection to Subpoena was served upon counsel of record by U.S. mail, postage *k prepaid, this day of July, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plainri ff } DICKIE, McCAMEY & CHILCOTE, P.C. Timothy A. Montgome , Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendants Swift Transportation, Co., Inc. and Jeremy Heck N -rt N No. 08-565 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, CIVIL ACTION - LAW Plaintiff, No. 08-565 Civil Term V. JEREMY HECK and SWIFT TRANSPORTATION OO., INC., Defendant. Issue No. PRAECIPE TO SUBSTITUTE ATTORNEY VERIFICATION Code: Filed on behalf of Defendants Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy Allan Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHII.COTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS, Plaintiff, CIVIL ACTION - LAW No. 08-565 Civil Term V. JEREMY HECK and SWIFT TRANSPORTATION CO., INC. Defendant. PRAECIPE TO SUBSTITUTE VERIFICATION TO ANSWER AND NEW MATTER AND NOW, comes the Defendants, Jeremy Heck and Swift Transportation, by and through his counsel, Dickie, McCamey & Chilcote, P.C., John T. Pion, Esquire and Timothy A. Montgomery, Esquire, and files this Praecipe to Substitute Verification to the Answer and New Matter. Kindly substitute the attached verification for the Attorney Verification previously filed with Defendants' Answer and New Matter. DICKIE, McCAMEY & CHILCOTE, P.C. ------------ By John T. Pion, Esquire Timothy A. Montgomery, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendants No. 08-565 Civil Term VERIFICATION I, Jeremy Heck, have read the foregoing Answer and New Matter. The statements therein are correct to the best of'.my personal knowledge or information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. ."? 1 Z??2 Jeremy Heck DATED 2 CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe to Substitute Verification to Answer and New Matter was served upon counsel of record by U.S. mail, postage prepaid, this 9th day of July, 2008, as follows: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff) DICKIE, McCAMEY & CHILCOTE, P.C. By Timothy A. Montgomery, quire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendants n ti c- C) - - n r•t MI? ,,- -n r77 -} Qq i NO. 08-565 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Billy L. Wiggins, Plaintiff, V. Jeremy Heck and Swift Transportation Co., Inc., CIVIL DIVISION NO. 08-565 Issue No. RESPONSE TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER Defendant. Code: Filed on behalf of Defendant Counsel of record for this party: John T. Pion, Esquire PA I.D. # 43675 Timothy A. Montgomery, Esquire PA I.D. # 94179 DICKIE, MCCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED NO. 08-565 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Billy L. Wiggins, CIVIL DIVISION Plaintiff, NO. 08-565 V. Jeremy Heck and Swift Transportation Co., Inc., Defendant. RESPONSE TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER AND NOW, come Defendants, Jeremy Heck and Swift Transportation Co., Inc., by and through their attorneys, DICKIE, McCAMEY & CHILCOTE, P.C. and file this Response in Opposition to Preliminary Objections to Defendants' New Matter and aver as follows: 1. FACTUAL AND PROCEDURAL BACKGROUND 1. Admitted. 2. Admitted. II. PRELIMINARY OBJECTIONS A. Preliminary Objection Pursuant to Pa.R.Civ.P. 1028(a)(2)- Failure to Conform to Law or Rule of Court 3. The averments contained in Paragraph 3 of Plaintiff's Preliminary Objections to Defendants' New Matter state conclusions of law to which no response is required. To the extent a response is deemed required, said allegations are denied. NO. 08-565 4. The averments contained in Paragraph 4 of Plaintiff's Preliminary Objections to Defendants' New Matter state conclusions of law to which no response is required. To the extent a response is deemed required, said allegations are denied. B. Preliminary Objection Pursuant to Pa.R.Civ. P. 1028(3)- Insufficient Specificity in Pleading 5. The averments contained in Paragraph 5 of Plaintiff's Preliminary Objections to Defendants' New Matter state conclusions of law to which no response is required. To the extent a response is deemed required, said allegations are denied. WHEREFORE, Defendants, Jeremy Heck and Swift Transportation Co., Inc., respectfully request that this Honorable Court dismiss the Preliminary Objections to Defendants' New Matter with prejudice. RESPECTFULLY SUBMITTED: Timothy A. Montgomery, q. John T. Pion, Esq. Attorneys for Defendants 2 NO. 08-565 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Billy L. Wiggins, CIVIL DIVISION Plaintiff, NO. 08-565 V. Jeremy Heck and Swift Transportation Co., Inc., Defendant. ORDER OF COURT AND NOW, this day of _, 2008, upon consideration of Plaintiff's Preliminary Objections to Defendants Jeremy Heck and Swift Transportation Co., Inc.'s Answer and New Matter,. it is hereby ORDERED that Plaintiff Billy L. Wiggins' Preliminary Objections are dismissed with prejudice. BY THE COURT: J. 3 NO. 08-565 CERTIFICATE OF SERVICE I, Timothy A. Montgomery, Esquire, hereby certify that a true and correct copy of the foregoing Answer to Preliminary Objections was served upon counsel of record by U.S. mail, H postage prepaid, this day of July, 2008, as follow: Larry A. Weisberg, Esq. McCarthy Weisberg Cummings, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 (Counsel for Plaintiff) DICKIE, McCAMEY & CHILCOTE, P.C. f- By 7 u /-t Timothy A. Montgomery, quire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Defendant Jeremy Heck 4 C"'? ' ., _ s r^; i _ . ?;1 _ ? Y n ?.. V ?'`` ? .? °C. " t" ?'`3 .-? ? j..G 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) BILLY L. WIGGINS, vs. JEREMY HECK AND SWIFT TRANSPORTATION COMPANY, INC. 08-565 Civil No. Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Rreliminaz?z Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Larry A. Weisberg, Esq. (Name and Address) 2041 Herr Street, Harrisburg, PA 17103-1624 (b) for defendants: Timothy A. Montgomery, Esq. (Name and Address) Two PPG Place, Suite 400, Pittsburgh, PA 15222 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 3, 2008 Signatur (?a r r? p. W?,S?erS, EJ? . Print your n me Billy L. Wiggins Z F _ Date: Utf 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. -TI !+{ ? CD T ?, an * x • Counsel for Plaintiff McCarthy Weisberg Cummings, P.C. 2041 Herr St. Harrisburg, PA 17103-1624 (717) 238-5707 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BILLY L. WIGGINS Plaintiff NO. 08-565 Civil Term V. JEREMY HECK CIVIL ACTION - LAW and SWIFT TRANSPORTATION CO., INC. JURY TRIAL DEMANDED Defendants PRAECIPE TO DISCONTINUE ACTION Pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure, Plaintiff Billy L. Wiggins, hereby files this Praecipe to discontinue the above captioned matter against all named defendants. Respectfully submitted, McCarthy Weisberg Cummings, P.C. Date: l f 1 + O ? By LatLFy'A. rfsberg, Esq.,PA 1. D. #83410 2041 Herr St. Harrisburg, PA 17103-1624 (717) 238-5707 Fax: (717) 233-8133 Email: Iweisberg@mwc5rm.com Attorney for Plaintiff r- _ . • CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe to Discontinue Action upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class postage prepaid, addressed as follows: John T. Pion, Esquire Timothy Allan Montgomery, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (Counsel for Defendants) Weisberg Cummings, P.C. q'_114 Date Orr isberg, Esquire Sup. t. I.D. #83410 2041 Herr Street Harrisburg, PA 17103-1624 (717) 238-5707 (717) 233-8133 (FAX) Attorney for Plaintiff ra _ co cz) r a