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HomeMy WebLinkAbout08-1316ELIZABETH F. SVIRBLY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008 - 13 I cJuj I -feco. JOHN HULTON, CIVIL ACTION - LAW DEFENDANT NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order 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 money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 ELIZABETH F. SVIRBLY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008 - crv i r -f ?f JOHN HULTON, CIVIL ACTION - LAW DEFENDANT COMPLAINT IN TRESPASS AND NOW, this 19' day of February 2008 comes the Plaintiff, ELIZABETH F. SVIRBLEY, by her attorneys, Irwin & McKnight, and makes the following Complaint against the defendant, JOHN HULTON: 1. The Plaintiff is Elizabeth F. Svirbly, an adult individual residing at 640 North Bedford Street, Carlisle, Cumberland County, Pennsylvania. 17013. 2. The Defendant, John Hulton, is an adult with the most recent address of 920 Windy Hill Road, Shermans Dale, Pennsylvania 17090. 3. On December 10, 2007 at approximately 7:30 a.m., the Plaintiff, Elizabeth F. Svirbly, was traveling south on Route 74 in Monroe Township, Cumberland County, Pennsylvania. As the Plaintiff was turning left onto Baish Road, she was struck from behind by a vehicle driven by John Hulton. 4. The Defendant, John Hulton, was unable to stop his vehicle in a safe manner before it struck the rear of the Plaintiff s vehicle. 3 5. The Plaintiff seeks damages for car rental expenses in the amount of $885.58 plus medical expenses for physical therapy sessions as well as past and future lost wages. 6. The plaintiff suffered injuries to her neck, shoulders, and has pain which radiates down both arms and both legs. She also sustained injuries to her chest. 7. The collision occurred without warning due to the inattention of the Defendant, John Hulton. 8. The Defendant was negligent and careless as follows: a. He failed to maintain his vehicle under proper control in an effort to avoid a collision; b. He was not paying attention to the highway; C. He failed to stop for traffic waiting to turn in his own lane of travel; and d. Failure to give prior warning to the Plaintiff of the collision. 9. The negligent actions of the Defendant were the proximate cause of the injuries to the Plaintiff. 10. The Plaintiff seeks compensation for the pain and suffering, emotional distress, and loss of life's pleasures and permanent injuries sustained in the accident as well as compensation for future losses she will incur in these areas from the Defendant. 4 11. The Plaintiff seeks compensation for the medical expenses and any lost wages which she has incurred and may incur in the future to treat her injuries as a result of the injuries she sustained in the accident. 12. The Plaintiff also seeks compensation for the serious and permanent injuries which she has sustained which has caused extensive pain and suffering. WHEREFORE, the Plaintiff, Elizabeth F. Svirbly, requests compensation and punitive damages from the Defendants in the amount in excess of Fifty Thousand and no/100 ($50,000.00) Dollars with interest as permitted by law and the costs of this litigation. Respectfully submitted, By: Date: February 19, 2008 IRWIN & MCIKIIGHT 60 West' omfret Street Carlisle, ennsylvania 17013 (717) 249- 53 Supreme Col?r Attorney for plaintiff 5 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. If .. 111".k. 2( . &? , - C ELI ETH F. SVIRBLY Date: February 19, 2008 8 ELIZABETH F. SVIRBLY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008 - 1 3 JOHN HULTON, CIVIL ACTION - LAW DEFENDANT CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: John Hulton 920 Windy Hill Road Shermans Dale, PA 17090 IRWIN & 1 kJKNIG By: Marcus 4. Mc" t, 60 West PomfreKtneet Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: February 25, 2008 7 r = W 4 \G, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action -Law Plaintiff VS. No. 2008-1316 JOHN HULTON, Civil Term Defendant PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P.1012 TO THE PROTHONOTARY: Kindly enter the appearance of Charles B. Calkins, Esquire, of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for the Defendant, John Hulton, in the above- captioned matter and mark the docket accordingly. GRIFFITH, ICKLER, ?E??MAN, SO 1 & CAFKWS _ By: CUARLES B. CAL: Supreme Court I.D. Attorney for the Defendant, John Nulton 110 South Northern Way York, PA 17402-3737 Telephone: (717) 757-7602 Date: March 12, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff vs. : No. 2008-1316 JOHN HULTON, Civil Term Defendant CERTIFICATE OF SERVICE AND NOW, this 12th day of March, 2007, I, Charles B. Calkins, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, Esquire, hereby certify that I have, this date, served a copy of the Praecipe for Entry of Appearance via United States First Class Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 W Pomfret ST Carlisle PA 17013 (Counsel for Plaintiff) , LERMAN, LKINS BY L-fIAKLES B!C LKINS, ESQUIRE Supreme Court D No. 36208 Attorney for Defendant 110 South Northern Way York, PA 17402-3737 Telephone: (717) 757-7602 C7 ? .--? T, ?;- .?` ?"??3 ,_ ' ? ?:? - "?' e°5 .:.?+ ??? * ?• r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff VS. No. 2008-1316 JOHN HULTON, Civil Term Defendant STIPULATION IT IS HEREBY stipulated by and between counsel for the undersigned that the Plaintiffs Complaint is amended to: 1. Withdraw any claim for punitive damages; and 2. Correct the Defendants name from John Hulton to John Nulton. IRWIN & M NIGHT GRIFFITH, STRICK R, LERMAN, ??r S YM S & LKINS By: By: MARCUS . MC IG III, ESQUIRE ANN MARGARET RAB, ESQUIRE Supreme ourt I.D No. 25 6 Supreme Court I.D. No. 55986 60 West Pomfret Stre 110 South Northern Way Carlisle, PA 17013 York, PA 17402 Date: h?'( 0 Date: 3 11 /6 F, - M n L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff VS. No. 2008-1316 JOHN NULTON, Civil Term Defendant CERTIFICATE OF SERVICE AND NOW, this 4 day of Ur, f , 2008, I, Charles B. Calkins, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Interrogatories/Request for Production of Documents of Defendant, John Nulton, to Plaintiff, Set No. 1 as indicated below, addressed to the party or attorney of record as follows: Marcus A. McKnight, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: RAO, CH RLES 11. CALKINS, ESQUIRE Attorney for Defendant Supreme Court I.D. No. 36208 110 South Northern Way York, Pennsylvania 17402-3737 (717) 757-7602 ?„ `? ?_? -?, ,-z .;:.?„ `?V7•I? j ?? y '? . 1 {.?. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff Civil Action - Law VS. JOHN NULTON, Defendant No. 2008-1316 Civil Term Civil Action - Law NOTICE TO PLEAD TO: Elizabeth F. Svirbly, Plaintiff c/o Marcus A. McKnight, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: Charles B. Calkins, Esquire #36208 Attorney for Defendant 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff VS. JOHN NULTON, Defendant Civil Action - Law No. 2008-1316 Civil Term Civil Action - Law ANSWER AND NEW MATTER OF DEFENDANT JOHN NULTON TO PLAINTIFF'S COMPLAINT AND NOW, come Defendant, John Nulton by his counsel, Charles B. Calkins, Esquire and Ann Margaret Grab, Esquire and Griffith, Strickler, Lerman, Solymos & Calkins and files the following Answer and New Matter to Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 1 of Plaintiff s Complaint and same are denied and strict proof thereof demanded. 2. Admitted. 3. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 3 of Plaintiff s Complaint and same are denied and strict proof thereof demanded. 4. Denied. It is specifically denied that the Defendant, John Nulton was unable to stop his vehicle in a safe manner before it struck the rear of Plaintiff's vehicle. On the contrary, it is averred that at all times relevant hereto, Answering Defendant acted carefully, lawfully and prudently. 5. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 5 of Plaintiff s Complaint and same are denied and strict proof thereof demanded. 6. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 6 of Plaintiff s Complaint and same are denied and strict proof thereof demanded. 7. Denied. It is specifically denied that the collision occurred without warning due to the inattention of the Defendant, John Nulton. On the contrary, it is averred that at all times relevant hereto, Answering Defendant, John Nulton acted carefully, lawfully and prudently. 8. Denied. It is specifically denied that the Defendant was negligent and careless as follows: a. Failing to maintain his vehicle under proper control in an effort to avoid a collision; b. Not paying attention to the highway; c. Failing to stop for traffic waiting to turn in his own lane of travel; and d. Failing to give prior warning to the Plaintiff of the collision. On the contrary, it is averred that at all times relevant hereto, Answering Defendant acted carefully, lawfully and prudently. 9. Denied. It is specifically denied that Answering Defendant, John Nulton was negligent. The remaining allegations of paragraph 9 constitute a conclusion of law to which no responsive pleading is necessary and same is deemed denied. 10. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 10 of Plaintiff s Complaint and same are denied and strict proof thereof demanded. 11. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 11 of Plaintiff s Complaint and same are denied and strict proof thereof demanded. 12. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 12 of plaintiff s Complaint and same are denied and strict proof thereof demanded. WHEREFORE, Answering Defendant, John Nulton demands judgment in his favor and against the Plaintiff, together with interest and costs of suit. By way of further defense: NEW MATTER 13. Paragraphs 1 through 12 of Defendant's Answer are incorporated herein as though fully set forth at length. 14. Plaintiff s Complaint fails to state a cause of action against Answering Defendant upon which relief can be granted. 15. No act or failure to act on the part of Answering Defendant, John Nulton was a substantial factor in bringing about Plaintiff's alleged injuries and damages. 16. Plaintiff, Elizabeth F. Svirbly was contributorily and/or comparatively negligent which contributory and/or comparative negligence was the substantial factor in bringing about her alleged and damages. 17. Plaintiff has not sustained a serious injury as defined under the Pennsylvania Motor Vehicle Financial Responsibility Law. 18. Plaintiff's claims for non-economic damages may be barred because Plaintiff has elected the limited tort option as set forth in the Pennsylvania Motor Vehicle Financial Responsibility Law. 19. Plaintiff, Elizabeth F. Svirbly was negligent and her negligence in failing to keep her vehicle under control given the conditions of the roadway and the circumstances of traffic was the sole cause of her alleged injuries damages. WHEREFORE, Answering Defendant, John Nulton demands judgment in his favor and against the Plaintiff, together with interest and costs of suit. Date: Respectfully submitted, GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: 4U"4 ? e'?' ( /?" Charles B. Calkins, quire #36208 BY: , 1"W X, • 6 Ann Margaret Gra , Esquire #55986 Attorneys for Defendant 110 South Northern Way York, PA 17402 (717) 757-7602 VERIFICATION I, John Nulton, hereby verify that the statements made in the foregoing Answer and New Matter to Plaintiff's Complaint are true and correct to the best of my personal knowledge or information and belief, as well as reports, records, conferences and other investigatory material made available to me. To the extent that the foregoing contains averments which are inconsistent in fact, I verify that my knowledge or information is sufficient to form a belief that one or more of them is true, although I am currently unable, after reasonable investigation, to ascertain which of the inconsistent averments are true. To the extent that the foregoing contains legal conclusions or opinions, I hereby state that my Verification is made upon the advice of counsel, upon whom I have relied in the filing this document. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904 related to unsworn falsifications to authorities. Dated: ?- 3-0 z? . VNJULTON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff vs. No. 2008-1316 Civil Term JOHN NULTON, Civil Action - Law Defendant CERTIFICATE OF SERVICE AND NOW, this day of 04 2008, I, Charles B. Calkins, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, Esquire, hereby certify that I have, this date, served a copy of the Answer and New Matter of Defendant, John Nulton to Plaintiffs Complaint via United States First Class Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: Charles B. Calkins, Esquire #36208 Attorney for Defendant 110 South Northern Way York, PA 11402 (717) 757-7602 f t ^' rn as ;= ";'. CO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff : vs. No. 2008-1316 JOHN NULTON, Civil Term Defendant CERTIFICATE OF SERVICE AND NOW, this day of 2008, I, Charles B. Calkins, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Revised Interrogatories/Request for Production of Documents of Defendant, John Nulton, to Plaintiff, Set No. 1 as indicated below, addressed to the parry or attorney of record as follows: Marcus A. McKnight, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: M4' C? CHARLES B. CALKINS, ESQUIRE Attorney for Defendant Supreme Court I.D. No. 36208 110 South Northern Way York, Pennsylvania 17402-3737 (717) 757-7602 ?:? ?? +?, w -? ,- ?,?°", t - ?. ? ?- __ C?1 ?f. _ '7:x °°<. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff : Civil Action - Law VS. JOHN NULTON, Defendant : No. 2008-1316 : Civil Term CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendant, John Nulton, certifies that: (1) A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) A copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) Twenty days has passed and no objection to the Subpoena has been filed, and (4) The Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CAL B Ann Margaret Grab, Esquire ID #55986 Attorney for the Defendant, John Nulton 110 South Northern Way Dated: March 4, 2009 York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff vs. JOHN NULTON, Defendant Civil Action - Law No. 2008-1316 Civil Term NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Ann Margaret Grab, Esquire, counsel for Defendant, John Nulton, 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. GRIFFITH, STRIC SOLYMOS & C Date: BY: ANN MARGARET GRAB, ESQUIRE Supreme Court I.D. No. 55986 Attorney for Defendant 110 South Northern Way York, PA 17402 Telephone No. (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff vs. JOHN NULTON, Defendant : Civil Action - Law : No. 2008-1316 : Civil Term SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 To: Allstate Insurance Company, 6345 Flank Drive #1000 Harrisburg PA 17112 Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: Complete first-party benefits file pertaining to Elizabeth F. Svirbly, date of birth: 12113179, date of accident 12/10/07, Policy No. 918109752, including but not limited to application for benefits, medical records, any payout sheet for medical and wage loss benefits paid, medical bills, medical reports, peer review reports, photographs, 'statements, claim notes, declaration page and/or coverage information reflecting first-party benefits coverage and tort election, documents submitted in support of or in payment of property damage claims, and any other documentation in your files. at Griffith. Strickler. Lerman, Solymos & Calkins 110 S Northern Wav York PA 17402-3737 You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena, within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ANN MARGARET GRAB, ESQ. ADDRESS: GRIFFITH, STRICKLER, LERMAN SOLYMOS & CALKINS 110 South Northern Way York PA 17402 TELEPHONE: (717) 757-7602 SUPREME COURT ID: 07490 ATTORNEY FOR: Defendant. John Nulton BY THE COURT: DATE: Seal of Court Prothonotary / Clerk, Civil Division IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff vs. JOHN NULTON, Defendant Civil Action - Law No. 2008-1316 Civil Term CERTIFICATE OF SERVICE AND NOW, this /day of 2009, I, Ann Margaret Grab, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, Esquires, hereby certify that I have, this date, served a copy of Notice of Intent to Serve Subpoenas by United States Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 W Pomfret Street Carlisle, PA 17013-3222 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & C KINS BY: Ann Margaret Gra ,esquire Attorney for Defendant Supreme Court I.D. #55986 110 South Northern Way York, Pennsylvania 17402 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff vs. JOHN NULTON, Defendant Civil Action - Law No. 2008-1316 Civil Term CERTIFICATE OF SERVICE AND NOW, this 4`h day of March, 2009, I, Ann Margaret Grab, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Certificate Prerequisite to Service of Subpoenas Pursuant to Rule 4009.22 by United States Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 W Pomfret Street Carlisle, PA 17013-3222 (Counsel for Plaintiff) GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS i By: w Ann Margaret Grab, ID No. 55986 Attorney for Defendant 110 S. Northern Way York, PA 17402 (717) 757-7602 n -rr rr"; G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff VS. JOHN NULTON, Defendant Civil Action - Law No. 2008-1316 Civil Term CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 n ri -r T t'. ,7: N r- W ..fr?N. N rl ._.{ _LJ4 °m Q f"C`r As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendant, John Nulton, certifies that: (1) A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) A copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) Twenty days has passed and no objection to the Subpoena has been filed, and (4) The Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY Ann'Margaret Grab, Esquire ID #55986 Attorney for the Defendant, John Nulton 110 South Northern Way Dated: March 30, 2010 York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff o n vs. No. 2008-1316 r? JOHN NULTON, Civil Term Defendant C7 CERTIFICATE OF SERVICE Olt AND NOW, this 27 h day of April, 2010, I, Robert A. Lerman, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Interrogatories of Defendant, to Plaintiff, Set No. 2 as indicated below, addressed to the party or attorney of record as follows: Marcus A. McKnight, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: ?l/,/.f I Ann Margaret Grab, Enquire 4PA55986 Attorney for Defendant 110 South Northern Way York, PA 17402 717-757-7602/717-757-3783 Fax amg abggslsc.com e i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law' c- Plaintiff j - VS. No. 2008-1316 -? c JOHN NULTON, Civil Term Defendant = w - ca CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendant, John Nulton, certifies that: (1) A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) A copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) Twenty days has passed and no objection to the Subpoena has been filed, and (4) The Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY' Ann Margaret Grab, squire ID #55986 Attorney for the Defendant, John Nulton 110 South Northern Way Dated: May 5, 2010 York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff VS. JOHN NULTON, Defendant Civil Action - Law No. 2008-1316 Civil Term NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Ann Margaret Grab, Esquire, counsel for Defendant, John Nulton, 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 maybe served. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: M ANN MARGARET GRAB, ESQUIRE Supreme Court I.D. No. 55986 Attorney for Defendant 110 South Northern Way I I York, PA 17402 Date: "? ?l ?- Telephone No. (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff vs. No. 2008-1316 JOHN NULTON, Civil Term Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 To: Hershey Medical Center, 1500 University Drive, Hershey, PA 17033 Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: Any and all office notes, reports, records, memoranda, correspondence, diagnostic tests and/or reports, consultation reports, x-rays, progress notes, hospital records, nurses notes, admission and discharge summaries and records and reports of examinations, billing and billing records and any other medical records of any kind pertaining to Elizabeth F. Svirbly, Social Security no. 193-68-8605, date of birth: 12/13179. at Griffith, Strickler, Lerman, Solymos & Calkins 110 S. Northern Way York PA 17402-3737 You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena, within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: CHARLES B. CALKINS. ESQ. ADDRESS: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way, York, PA 17402 TELEPHONE: (717) 757-7602 SUPREME COURT ID: 36208 ATTORNEY FOR: Defendant, John Nulton BY THE COURT: DATE: Seal of Court Prothonotary / Clerk, Civil Division IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff vs. No. 2008-1316 JOHN NULTON, Civil Term Defendant CERTIFICATE OF SERVICE AND NOW, this day of 2010, I, Ann Margaret Grab, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, Esquires, hereby certify that I have, this date, served a copy of Notice of Intent to Serve Subpoena by United States Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 W Pomfret Street Carlisle, PA 17013-3222 GRIFFITH, STRICKLER, LERMAN, S YMOSS &CAL S BY: (? )}' i ` Ann Margaret Grab, Esquire Attorney for Defendant Supreme Court I.D. #55986 110 South Northern Way York, Pennsylvania 17402 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff VS. No. 2008-1316 JOHN NULTON, Civil Term Defendant CERTIFICATE OF SERVICE AND NOW, this 5t' day of May, 2010, I, Ann Margaret Grab, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Certificate Prerequisite to Service of Subpoenas Pursuant to Rule 4009.22 by United States Mail, addressed to the parry or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 W Pomfret Street Carlisle, PA 17013-3222 (Counsel for Plaintiff) GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY' h1j L f /? Ann Margaret Grab, ID No. 55986 Attorney for Defendant 110 S. Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law `-' Plaintiff ?' vs. No. 2008-1316 JOHN NULTON, <C Civil Term y = T ? r.?-n Defendant ° F --i DEFENDANT, JOHN NULTON'S MOTION FOR PARTIAL SUMMARY JUDGMEAT Plaintiff and Defendant were involved in a motor vehicle accident. on December 10, 2007, which accident is the subject of a Complaint filed by the Plaintiff. (Exhibit "1" to Defendant's Brief in Support of the within Motion). 2. The Defendant filed an Answer and New Matter and pled the Plaintiff's election of limited tort coverage in effect on the date of the accident. (Exhibit "2" to Defendant's Brief in Support of the within Motion). 3. The Plaintiff was insured by Allstate Insurance Company pursuant to a policy, number 9 18 109752 07/22 with effective dates of coverage of July 22, 2007 through January 22, 2008 and had elected limited tort coverage. (Exhibit "4" to Defendant's Brief in Support of the within Motion). 4. The Allstate insurance policy precludes insureds who elect and pay a reduced premium for limited tort coverage from maintaining an action for non-economic loss unless the injury is a serious injury. (Exhibit "1", Allstate Fire and Casualty Insurance Company Policy, page 7). 5. Plaintiff received a cervical strain as the result of the accident and treatment included physical therapy, limited pain medication, and epidural steroid injection. (See Exhibits "6" through "12" to Defendant's Brief in Support of the within Motion). 6. Plaintiff's cervical strain is not a serious injury and has not limited her ability to work on a full-time basis. (See Exhibit "5", pages 20 and 21 to Defendant's Brief in Support of the within Motion). 7. None of Plaintiff's treating physicians have placed her under any physical restriction hence there is no loss of function with respect to activities of daily living. (See Exhibit "5", page 38 to Defendant's Brief in Support of the within Motion). 8. In order to overcome a limited tort election the Plaintiff bears the burden of proving a serious injury resulting death, serious impairment of body function, or permanent, serious disfigurement. 75 Pa. C.S.A. §1702. 9. Plaintiff cannot meet her burden and as such there is no genuine issue of material fact, summary judgment is proper, and Plaintiff should be limited to a recovery of economic damages only. WHEREFORE, moving Defendant respectfully requests the Court grant its Motion for Partial Summary Judgment ruling that Plaintiffs injury is not a serious one and that Plaintiff's limited tort election specifically precludes claims advanced for non-economic damages. Respectfully submitted, GRIFFITH, STRICKLER, LERUAN, SOLYMOS & CALKINS Date: ?r BY: c Lam( Charles B. Calkins, Esquire #36208 Ann Margaret Grab, Esquire #55986 Attorneys for Defendant 110 South Northern Way York, PA 17402 (717) 757-7602 i ????r,???0.? li i ? 3. bodily injury or property damage arising out of the use of a non-owned auto in any business or occupation of an insured person. However, this exclusion does not apply while you, your chauffeur or domestic servant are using a private passenger auto or trailer. 4. bodily injury to an employee of any insured person arising in the course of employment. This exclusion does not apply to your domestic employee who is not required to be covered by a worker's compensation law or similar law. 5. bodily injury to a co-worker injured in the course of employment. This exclusion does not apply to you. 6. damage to or destruction of property an insured person owns, transports, is in charge of, or rents. However, a private residence or a garage rented by that person is covered. 7. bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person. 8. bodily injury or property damage which would also be covered under nuclear energy liability insurance. This applies even if the limits of that insurance are exhausted. 9. bodily injury or property damage arising out of the participation in any prearranged, organized, or spontaneous: a) racing contest; b) speed contest; or c) use of an auto at a track or course designed or used for racing or high performance driving; or in practice or preparation for any contest or use of this type. Financial Responsibility When this policy is certified as proof under any Motor Vehicle Financial Responsibility law, the insurance under this part shall comply with the provisions of such law. This liability coverage will comply with the extent of liability coverage and limits required by the law. Limits of Liability ' 1. Limited Tort Insurance If the Policy Declarations indicate you elected Limited Tort insurance for Coverage AA, you or any resident relative may seek compensation for economic loss sustained due to bodily injury in a covered motor vehicle accident. You or any resident relative are precluded from maintaining an action for any noneconomic loss unless the injury sustained is a serious injury or the at-fault person: a) is convicted of, or accepts Accelerated Rehabilitative Disposition for, driving under the influence of alcohol or a controlled substance in the accident; or b) is operating a motor vehicle registered in another state; or c) intends to injure himself or another person; or d) has not maintained financial responsibility. You or any resident relative otherwise bound by the Limited Tort option shall retain full tort rights with respect to claims against a person in the business of designing, manufacturing, repairing, servicing or otherwise maintaining motor vehicles. Full tort rights will be retained by you or any resident relative for claims involving a motor vehicle which has a defect caused by, or not corrected by, an act or omission in the course of such a business, other than a defect in a motor vehicle which is operated by such business. You or any resident relative otherwise bound by the Limited Tort option shall retain full tort rights if injured while an occupant of a motor vehicle other than a private passenger motor vehicle. 2. Full Tort Insurance If the Policy Declarations indicate you elected Full Tort insurance for Coverage AA, you or any resident relative may seek compensation for noneconomic loss and economic loss Page 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Plaintiff Civil Action - Law vs. JOHN NULTON, Defendant No. 2008-1316 Civil Term Civil Action - Law CERTIFICATE OF SERVICE AND NOW, this day of 1 { ;'?"J t E # , 2010, I, Ann Margaret Grab, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, Esquire, hereby certify that I have, this date, served a copy of Defendant, John Nulton's Motion for Partial Summary Judgment via United States First Class Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: Ann Margaret Grab, Esquire #55986 Attorney for Defendant 110 South Northern Way York, PA 17402 (717) 757-7602 -V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter foriexf;Z; 4 Argument Court.) --r .,,,rtl cjj vs. No. 2008-1316 C ?p JOHN NULTON, Civil Tenor Defendant yi-. ?c g? W qa PRAECIPE FOR LISTING CASE FOR ARGUMENT o --ttj 24 3 C) -< ^,) State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Partial Summary Judgment of Defendant, John Nulton 2. Identify all counsel who will argue cases: (a) Marcus A. McKnight, III, Esquire - Counsel for Plaintiff Irwin & McKnight West Pomfret Professional Building 60 W Pomfret Street Carlisle, PA 17013-3222 (b) Ann Margaret Grab, Esquire - Counsel for Defendant Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Date: Respectfully submitted, GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: &a, & Charles B. Calkins, Esquire #36208 Ann Margaret Grab, Esquire #55986 Attorneys for Defendant 110 South Northern Way York, PA 17402 (717) 757-7602 r .I CERTIFICATE OF SERVICE AND NOW, this? day of iNV e , 2010, I, Ann Margaret Grab, Esquire, a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH F. SVIRBLY, Civil Action - Law Plaintiff VS. : No. 2008-1316 Civil Term JOHN NULTON, Civil Action - Law Defendant member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, Esquire, hereby certify that I have, this date, served a copy of Praecipe for Listing Case for Argument via United States First Class Mail, addressed to the party or attorney of record as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY: Ann Margaret Gra , 986 Attorney for Defendant 110 South Northern Way York, PA 17402 (717) 757-7602 ELIZABETH F. SVIRBLY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008 -1316 CIVIL TERM JOHN NULTON, CIVIL ACTION - LAW DEFENDANT PRAECIPE TO REMOVE CASE FROM ARGUMENT COURT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please remove the above-captioned case from the current Argument Court List. Both parties have agreed to remove the case currently scheduled for Argument Court on Wednesday, December 15, 2010. Respectfully submitted, IRWIN & NI&NIGHT, P.C. By:? - ' Marcus A. McKni I, Esquire 60 We Pomfret S t C-_ C5 -71 Carlisle, Pennsylvania 17013 rn W _ c' _ (717)249-2353 z? ? ?r- -u ! ©o <Cj > -+o q" ? ?s 3 n N ?rn Date: December 1, 2010 - ?' ? ELIZABETH F. SVIRBLY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. NO.2008 -1316 CIVIL TERM JOHN NULTON, CIVIL ACTION - LAW DEFENDANT CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe to Remove Case from Argument Court was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Charles B. Calkins, Esq. Ann Margaret Grab, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 IRWIN & IAcKNIGIJT, P.C. By: Martins A. McWiOt, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: December 1, 2010 ELIZABETH F. SVIRBLY, PLAINTIFF V. JOHN NULTON, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008 -1316 CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO RELIST CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: 1. State matter to be argued: Motion for Partial Summary Judgment of ; c:-, Defendant, John Nulton. -oa t ? r? 2. Identify all counsel who will argue cases: ?'- 3rs M A M K i h III E i l f ?-- Co r.J cn? 6 (a) arcus . n g , c t, squ re - Counse or the Plain tiffx n Irwin & McKnight, P.C. - 60 West Pomfret Street ) wn :Z Carlisle, Pennsylvania 17013 (b) Ann Margaret Grab, Esquire - Counsel for Defendant Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 3. 1 will notify all parties in writing within two days that this case has been relisted for Argument. 4. Argument Court Date: January 14, 2011. Respectfully submitted, By: IRWIN & )rcKNIGHT, P.C. Marcfs A. Mc ig , III, Esquire 60 West Pomfret reet Carlisle, Pennsylvania 17013 (717) 249-2353 Date: December 8, 2010