Loading...
HomeMy WebLinkAbout08-1723! "'"`? DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. PO Box 145496 Cincinnati, Ohio 45250-5496 and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, Plaintiffs V. Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA No. CO- Ilx3 0,ivi I Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons in the above-captioned matter. Date: /.?F, 2008 By: Zlfteg Donald M. Attorney for Plaintiffs WRIT OF SUMMONS TO: Alan K. Newman and Smith Trucking, Inc. You are hereby notified that the Cincinnati Insurance Company and Elmer R. Wright, Op `'a? Plaintiffs, have commenced an action against you. Date: Mar 1e_ _ n_, 2008 Curtis R. Lon , r thonot of Cumberland County By: * 00 d ?t3 ^G 0 ` ti DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite, 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO PO Box 145496 Cincinnati, Ohio 45250-5496 and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, Plaintiffs V. Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA No. 08-1723 CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE Please file the attached Return of Service indicating that service of the Writ of Summons was perfected upon the Defendant Smith Trucking, Inc., on March 24, 2008 in Elmhurst, Illinois. Date: l'.:'.sr•c'? By: Dona 4-. esseyn, Esquire Attorney for Plaintiffs DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. PO Box 145496 Cincinnati, Ohio 45250-5496 and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA No. 08-1723 Plaintiffs Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants CIVIL ACTION - LAW : JURY TRIAL DEMANDED ¦ 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 cans to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126 A. SI ri ? Agent Y4??- P1 _ , 1 tpWed iadcl d Livery D. D. ds-Ielivery address different from Item 1? ? Yes If YES, enter delivery address below: ? No 3. Se a Type rtified Mail Q E ess Mail ? Registered Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7007 0 710 0003 8713 8466 (Transfer from service label) Form M! 1. . February 2004 Domestic Return Receipt 102595-02-M-1540 • DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO PO Box 145496 Cincinnati, Ohio 45250-5496 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, Plaintiffs V. Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants No. 08-1723 CIVIL ACTION - LAW JURY TRIAL DEMANDED RETURN OF SERVICE AND NOW comes Plaintiffs, The Cincinnati Insurance Company and Elmer R. Wright, by and through their counsel, Donald M. Desseyn, Esquire and pursuant to Pa.R.C.P. 403 and 405(c) hereby produced a return receipt executed by Defendant, Smith Trucking, Inc., evidencing service upon the party outside the Commonwealth of Pennsylvania. Date: fz 'a?d? --y r By: Donald Tvpt5esseyn, squire Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 28th day of February, 2008, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Praecipe and Return of Service, by depositing same in the United States mail, certified, postage prepaid, return receipt requested, in Mechanicsburg, Pennsylvania, addressed to: Smith Trucking, Inc 770 N. Church, Suite F Elmhurst, IL 60126 Date: By: -/" Donald ,squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 -rr rtiy i' 11 .. ri 1 i i DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. IN THE COURT OF COMMON PLEAS PO Box 145496 OF CUMBERLAND COUNTY Cincinnati, Ohio 45250-5496 PENNSYLVANIA and Elmer R. Wright No. 08-1723 1671BNCR900E Arcola, IL 61910, Plaintiffs V. CIVIL ACTION - LAW Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants JURY TRIAL DEMANDED TO THE PROTHONOTARY: PRAECIPE Service of the Writ of Summons was perfected upon the Defendant Alan Keith Newman on or about April 18, 2008 in Henderson, North Carolina by regular US Mail. Date: By: -? D Desse , Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 10th day of October, 2008, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Praecipe for Proof of Service, by depositing same in the United States mail, certified, postage prepaid, return receipt requested, in Mechanicsburg, Pennsylvania, addressed to: Smith Trucking, Inc 770 N. Church, Suite F Elmhurst, IL 60126 Date: !a / ewLo/" Z e By: Donald esseyn, quire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ra G ?a°o ? , ?3 ?.?; .: ,?,. ,? t' ?.-?-'? ???? ? ?? ?„ r DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY and PENNSYLVANIA Elmer R. Wright, CIVIL TERM N0.08-1723 Plaintiffs 2F t m r z ; :c_ rn -n V. CIVIL ACTION - LAW Alan Keith Newman .? w c• and .c} Smith Trucking, Inc., Defendants JURY TRIAL DEMANDED 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 AN ATTORNEYAND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBLERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO and Elmer R. Wright, V. Alan Keith Newman and Plaintiffs Smith Trucking, Inc., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL TERM NO. 08-1723 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiffs, the Cincinnati Insurance Company and Elmer R. Wright (hereinafter "Plaintiff'), by and through their counsel, Donald M. Desseyn, Esquire, and hereby states as follows: 1. The Plaintiff, Elmer R. Wright, is an adult individual residing at 1671 B N C R 900 E, Arcola, IL 61910. 2. Plaintiff, the Cincinnati Insurance Company is a corporation licensed to do business and in fact, conducts business within the Commonwealth of Pennsylvania and has a principal place of business at 6200 South Gilmore Road, Fairfield, OH 45014. 3. Defendant, Alan Keith Newman is an adult individual with an address of 79 Brookhaven Place, Hendersen, NC 47536. 4. Defendant Smith Trucking, Inc., is an Illinois corporation 'with a principal place of business at 770 M. Church, Suite F, Elmhurst, II. 60126 which at all times pertinent hereto, was conducting business within the Commonwealth of Pennsylvania. 5. On or about March 30, 2006, Defendant, Alan Keith Newman was operating a tractor-trailer at the True Temper parking lot located at 465 Railroad Avenue, Mechanicsburg, Hampden Township, Pennsylvania. 6. Defendant Newman was operating a Peter Built tractor VIN IXP5D49X77N663630 which was owned by Defendant Smith Trucking, Inc. 7. At all times pertinent hereto, Plaintiff, based upon information and belief, alleges that Defendant Newman was operating the aforementioned vehicle within the course and scope of his employment as an agent, employee and/or servant of Defendant Smith Trucking, Inc. 8. At all times pertinent hereto, Plaintiff was operating a Ken.worth tractor-trailer owned by Plaintiff with a VIN 1XKEDB9X1KJ37337. 9. Prior to the subject accident, Defendant Newman had parked his tractor-trailer in the True Temper parking lot. 10. Plaintiff was subsequently instructed to move his tractor-trailer behind the tractor- trailer being operated by Defendant Newman. 11. Defendant Newman subsequently started his vehicle and proceeded to back into Plaintiff's tractor. As a result of Defendants' actions or inactions, Plaintiffs incurred damages totaling $16,463.70. 12. At all times pertinent hereto, Plaintiff, Cincinnati Insurance Company, had issued a policy of insurance to Plaintiff. Pursuant to the terms of said insurance policy, Cincinnati Insurance Company paid to Plaintiff the sum of $10.427.37 for damages resulting from Alan Keith Newman and/or Smith Trucking, Inc.'s actions and accordingly is hereby subrogated to the rights of Plaintiff, Elmer R. Wright. 13. Plaintiff, Elmer R. Wright was required to pay $250.00 deductible pursuant to the applicable policy of insurance for which indemnification is hereby demanded. 14. Plaintiff also incurred additional damages and expenses totaling $6,036.03 for which demand is hereby made. 15. A Writ of Summons was issued on March 17, 2008 and service was perfected upon Defendant Smith Trucking, Inc. via certified mail return receipt requested on March 24, 2008; and, upon Defendant Alan Keith Newman on or about April 18, 2008 in Henderson, North Carolina by regular US Mail pursuant to Pa. R.C.P. 404. COUNTI THE CINCINNATI INSURANCE COMPANY AND ELMER R. WRIGHT v. ALAN KEITH NEWMAN - NEGLIGENCE 16. Plaintiffs hereby incorporate Paragraphs 1-15 as if fully rewritten herein. 17. Defendant Alan Keith Newman was negligent, careless and reckless in the operation of his subject tractor-trailer in the following circumstances: a. Failure to properly control and operate his motor vehicle; b. Failure to keep alert and maintain a proper lookout for other motor vehicles in and about his vehicle; c. Failure to observe Plaintiff's vehicle parked behind his vehicle; d. Failure to control his vehicle so as to avoid a collision; e. Failure to apply his brakes in time to avoid a collision; f. Backing into a vehicle stopped behind his vehicle; g. Failure to operate his motor vehicle in accordance with the traffic conditions at the time; h. Failure to properly observe and see Plaintiff's vehicle prior to the collision; i. Driving carelessly in violation of 75 Pa. C.S. §3714; j. Operating his vehicle in willful and wanton disregard for the safety of the property of others; k. Backing into Plaintiff's vehicle in violation of 75 Pa. C.S. §3702; 1. Being inattentive; in. Failing to use reasonable care and caution for the conditions then and there existing at the time of the accident as aforementioned; and, n. Being otherwise careless and reckless under the circumstances. 18. Mr. Newman's negligent, careless and reckless conduct was a factual cause for which he is, or may be, liable to Plaintiffs for the following damages and losses which are hereby claimed in this action: a. Emergency repairs to right fuel tank in the amount of $366.58; b. Repairs to physical property damage in the amount of $10,456.78; c. Lost fuel in the amount of $221.00; d. Replacement of damaged work boots; e. Lease of substitute tractor; f. Charges for additional insurance premium on rental tractor; and, g. Such other damages as will be determined. WHEREFORE, Plaintiffs, the Cincinnati Insurance Company and. Elmer R. Wright hereby demand judgment against Defendant, Alan Keith Newman in the amount of $16,577.40 together with interest, costs and delay damages and any other relief determined just and proper by this Court. COUNT II THE CINCINNATI INSURANCE COMPANY AND ELMER R. WRIGHT v. SMITH TRUCKING COMPANY. INC. - VICARIOUS LIABILITY 19. Plaintiffs hereby incorporate Paragraphs 1-18 as if fully rewritten herein. 20. At the time of the subject accident, Defendant Newman was operating the subject tractor-trailer as an agent of Defendant Smith Trucking, Inc. 21. Defendant Smith Trucking, Inc. is vicariously liable for the acts of its agents, contractors, employees, independent contractors and/or servants. 22. Defendant Smith Trucking, Inc. is vicariously liable for the damages caused by Defendant Newman in the amount of $16,463.40. WHEREFORE, Plaintiffs, the Cincinnati Insurance Company and Elmer R. Wright hereby demand judgment against Defendant, Alan Keith Newman in the amount of $16,577.40 . f 4 together with interest, costs and delay damages and any other relief determined just and proper by this Court. Date: O.S? f By: 4?z??.- Donal esseyn Attorney for Plaintiffs VERIFICATION I, Donald M. Desseyn, Esquire, counsel for The Cincinnati Insurance Company and Elmer R. Wright, verify that I am authorized to execute this verification and verify that the Complaint is true and correct to the best of my knowledge, information, and belief based upon a review of the pleadings, interview with the insured and the investigation file. This Verification is being made pursuant to Pa.R.C.P. 1024(e) as the party is outside the jurisdiction of this Court and an executed Verification cannot be obtained within the time allowed for filing of this pleading. Moreover, the undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: Name: Dona esseyn, squire Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 11th day of May 2010, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Complaint, by depositing same in the United States mail in Mechanicsburg, Pennsylvania, addressed to: Smith Trucking, Inc. 770 North Church, Suite F Elmhurst, IL 60126 Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 Date: DS// D U ?s By: U?? DonA& esseyn, squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 k THE CINCINNATI INSURANCE CO. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AND CIVIL DIVISION - IN LAW ELMER R. WRIGHT, CASE NO. 08-1723 Plaintiffs, TYPE OF DOCUMENT: Vs. PRELIMINARY OBJECTIONS ALAN KEITH NEWMAN, COUNSEL OF RECORD FOR PARTY: AND DAVID A. ROMANI, ESQUIRE ROMANI AND ROMANI SMITH TRUCKING, INC. 720 SECOND STREET P.O. BOX 207 Defendants. CRESSON, PENNSYLVANIA 16630 (814) 886-7000 SUPREME COURT ID # 43233 c_ W ? , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE CINCINNATI INSURANCE CO. AND ELMER R. WRIGHT, - Plaintiffs, VS. ALAN KEITH NEWMAN, . AND SMITH TRUCKING, INC. . Defendants. - CASE NO. 08-1723 NOTICE TO PLEAD In accordance'with Rules 1026 and 1361 of the Pennsylvania Rules of Civil Procedure, you are hereby notified to plead to the within Preliminary Objections within twenty (20) days from service hereof or a Default Judgment may be entered against you. A. ROMANI, ESQUIRE 720 SECOND STREET P.O. BOX 207 CRESSON, PA 16630 (814) 886-7000 ROMANI AND ROMANI .? ? BY: VIROMAND I AND ROMANI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE CINCINNATI INSURANCE CO. CASE N0. 08-1723 AND ELMER R. WRIGHT, Plaintiffs, VS. ALAN KEITH NEWMAN, AND SMITH TRUCKING, INC. - Defendants. PRELIMINARY OBJECTIONS AND NOW, comes the Defendants, ALAN KEITH NEWMAN and SMITH TRUCKING, INC., by and through their attorneys, ROMANI AND ROMANI, and files the following Preliminary Objections pursuant to Pa.R.C.P. 1028(a)(1) and in support thereof avers as follows: I. LACK OF JURISDICTION-IMPROPER SERVICE OF WRIT OF SUMMONS 1. In Paragraph 15 of the Complaint, the Plaintiff alleges that a Writ of Summons was issued on March 17, 2008 and service was perfected upon Defendant, SMITH TRUCKING, INC., via certified mail return receipt requested on March 24, 2008; and, upon Defendant, 1 ALAN KEITH NEWMAN, on or about April 18, 2008 in Henderson, North Carolina by regular U.S. Mail pursuant to Pa.R.C.P. 404. 2. The date of loss in this action was March 30, 2006. This action was commenced by the filing of a Praecipe To Issue Writ Of Summons and Writ Of Summons on March 17, 2008. On March 31, 2008, a Praecipe and Return of Service indicate a return receipt was purportedly served at 770 N. Church, Suite F, Elmhurst, Illinois 60126. A true and correct copy of the Praecipe, Domestic Return Receipt and Return of Service are attached as "Exhibit A". 3. In Paragraph 4 of the Complaint, the Plaintiff alleges that Defendant, SMITH TRUCKING, INC., is an Illinois corporation with a principle place of business at 770 N. Church, Suite F, Elmhurst, Illinois 60126. Defendant, SMITH TRUCKING, INC. is a Pennsylvania corporation with its principle place of business located at 153 Smith Transport Road, Roaring Spring, Pennsylvania 16673. Defendant, SMITH TRUCKING, INC., is not located at the address indicated on the Return of Service. A true and correct copy of an Affidavit of Defendant, SMITH TRUCKING, INC., establishing it is a Pennsylvania corporation and located in the Commonwealth of Pennsylvania is attached as "Exhibit B". 4. Defendant, SMITH TRUCKING, INC., is located in and conducts business in the Commonwealth of Pennsylvania. Because the Defendant, SMITH TRUCKING, INC., is not an Illinois corporation and 2 the principal place of business is not at the address indicated on the Return of Service, the manner of service of the Writ of Summons does not conform to Pa.R.C.P. 424. 5. The Plaintiff has not reissued the Writ of Summons prior to the expiration of the period allowed for service in accordance with Pa.R.C.P. 401 and has not filed a Return of Service which sets forth the date, time, place and manner of service in accordance with Pa.R.C.P. 405. Because the Writ of Summons was improperly served, this Court does not have jurisdiction over Defendant, SMITH TRUCKING, INC., and the Writ of Summons and Complaint should be dismissed. 6. On October 14, 2008 a Praecipe and Certificate of Service were filed which indicate service of the Writ of Summons was perfected upon the Defendant, ALAN KEITH NEWMAN, on or about April 18, 2008 in Henderson, North Carolina by regular U.S. Mail. The Certificate of Service certifies that a copy of the foregoing Praecipe for Proof of Service was mailed certified, postage prepaid return receipt requested and addressed to SMITH TRUCKING, INC. at 770 N. Church, Suite F, Elmhurst, Illinois 60126. A true and correct copy of the Praecipe and Certificate of Service are attached as "Exhibit C". 7. The Certificate of Service fails to identify the date, time, place and manner of service in accordance with Pa.R.C.P. 405; 3 and, the Plaintiff has not reissued the Writ of Summons prior to the expiration of the period allowed for service nor complied with Pa.R.C.P. 403 service by mail. 8. Because the Writ of Summons was improperly served, this Court does not have jurisdiction over Defendant, ALAN KEITH NEWMAN, and the Writ of Summons and Complaint should be dismissed. 9. Pennsylvania Rules of Civil Procedure 1028(a)(1) requires that Preliminary Objections may be filed by any party to any pleading and include lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form of service of a Writ of Summons or Complaint. 10. Since the Plaintiff failed to properly serve the Writ of Summons on the Defendants, ALAN KEITH NEWMAN and SMITH TRUCKING, INC. and said Writ of Summons was not reissued within the applicable time periods to effectuate proper service; this action should be dismissed as this Honorable Court does not have jurisdiction. WHEREFORE, the Defendants, ALAN KEITH NEWMAN and SMITH TRUCKING, INC. respectfully request this Honorable Court dismiss Plaintiff's Writ of Summons and Complaint. 4 II. INSUFFICIENT SPECIFICITY OF A PLEADING 11. This case arises out of an accident which occurred on March 30, 2006 at the True Temper parking lot located at 465 Railroad Avenue, Mechanicsburg, Hampden Township, Pennsylvania. 12. Plaintiff alleges the Defendant, ALAN KEITH NEWMAN operated Defendant, Smith Trucking, Inc. motor vehicle and collided with the Plaintiff, ELMER R. WRIGHT'S motor vehicle. 13. At Paragraph 17 of the Complaint, the Plaintiff alleges the Defendant, ALAN KEITH NEWMAN was negligent, careless and reckless in the operation of the tractor-trailer for failure to properly control and operate his motor vehicle; failure to observe Plaintiff's motor vehicle parked behind his vehicle, and several additional actions and inactions. However, at Paragraphs 17(j) and 17(n), the Plaintiff alleges: "(j) Operating his vehicle in willful and wanton disregard for the safety of property of others; (n) Being otherwise careless and reckless under the circumstances". 14. Pennsylvania Rule of Civil Procedure 1019(a) requires that the material facts on which a cause of action is based be stated in a concise and summary form. Pa.R.C.P. 1019(a) serves as the foundation of the Pennsylvania philosophy of fact-pleading. 15. The allegations set forth at Paragraphs 17(j) and 17(n) of the Complaint are without any factual foundation for the 5 imposition of liability upon the Defendant on a theory of negligence. Rather, they are meaningless and boilerplate epithets of negligence which do nothing to apprise the Defendants of the nature of their conduct which is being alleged in support of a claim against them for negligence. In addition, the allegations set forth at Paragraphs 17(j) and 17(n) of the Complaint provide the Plaintiff with an avenue to introduce new theories of liabilities under the guise of "amplifying" theories of liability already pled in the Complaint all to the surprise and prejudice of the Defendants. WHEREFORE, the Defendants, ALAN KEITH NEWMAN and SMITH TRUCKING, INC. respectfully request this Honorable Court strike Paragraphs 17(j) and 17(n) from the Complaint. Respectfully submitted, ROMANI AND ROMANI By: 6;vid ?ARCokmA;i;, Esquire Attorney for Defendants Romani and Romani 720 Second Street / P.O. Box 207 Cresson, PA 16630 (814) 886-7000 DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR PLAINTIFFS 1 ?L L E3I,ir _ ?C?v\ 1. its THE CINCINNATI INSURANCE CO. PO Box 145496 Cincinnati, Ohio 45250-5496 and _ ........ _...... Elmer R. Wright 1671BNCR900E Arcola, IL 61910, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA 01 . No. ll$- 17a3 ivi ( ,e V. : CIVIL ACTION - LAW Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. -' C 770 N. Church, Suite F . Elmhurst, IL.60126, Defendants JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons in the above-captioned matter. By: Donald M. Attorney for Plaintiffs wRIT OF SUMMONS _ TO: Alan K: Newman and Smith Trucking, Inc. You are hereby notified that the Cincinnati hlsurance Company and Elmer R. Wright, 41- "EXHIBIT A" Plaintiffs. have commenced an action against you. Date: 1'1 , 2008 Curtis R. L ,,; roth otary of Cumberland County By: _, _..... Gadislet ` LIA 1. w 11 DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite, 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO PO Box 145496 Cincinnati, Ohio 45250-5496 and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA No. 08-1723 Plaintiffs Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please file the attached Return of Service indicating that service of the Writ of Summons was perfected upon the Defendant Smith Trucking, Inc., on March 24, 2008 in Elmhurst, Illinois. Date: By: - Don ' esseyn, Esquire Attorney for Plaintiffs DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. PO Box 145496 Cincinnati, Ohio 45250-5496 and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, v. Plaintiffs Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants JURY TRIAL DEMANDED compk t -noms 1.2, and 3. Also complete (tom 4 If PW6icW DeWery Is do*W. ¦ Print your name and address on the reverse so that we can raW n the card to you. et Attach this card to the beck of the maUpiece, or on the front It space permits. 1. Amide Addw , 'to- Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA No. 08-1723 CIVIL ACTION - LAW A D Apart 0 Addreseee de of i.716 d*40y adduce Mwerd Uom amr 1? O Yes If Yes. eater deNvay adore a bebw: 0 No S. SWAM Type tl Ma1I Mail PADW ? gapatarad m Receipt for Merdiendise ? immd ma lJ a o.D. 4. Raetdcted D~ Pft Fee) ? Yes 2. Article Num1 r 7007 0710 0003 6713 8466 mom' ? eervlce raberl -- Form 3811, Febrvary 2004 Domestic Retum Recebt u 102595.02'WI W, DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I D # 69179 THE CINCINNATI INSURANCE CO. IN THE COURT OF COMMON PLEAS PO Box 145496 OF CUMBERLAND COUNTY Cincinnati, Ohio 45250-5496 PENNSYLVANIA and Elmer R. Wright 1671B N C R 900 E Arcola, IL 61910, v. Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED RETURN OF SERVICE AND NOW comes Plaintiffs, The Cincinnati Insurance Company and Elmer R. Wright, by and through their counsel, Donald M. Desseyn, Esquire and pursuant to Pa.R.C.P. 403 and 405(c) hereby produced a return receipt executed by Defendant, Smith Trucking, Inc., evidencing service upon the party outside the Commonwealth of Pennsylvania. Date: oLZ : No. 08-1723 Plaintiffs By: ? Donald esseyn, squire Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 28th day of February, 2008, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Praecipe and Return of Service, by depositing same in the United States mail, certified, postage prepaid, return receipt requested, in Mechanicsburg, Pennsylvania, addressed to: Smith Trucking, Inc 770 N. Church, Suite F Elmhurst, IL 60126 . Date: -Oaw-A-wr By: s -? Donald sseyn, squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 r_' `=; ?? ?' - ?-? ri ?.,? ? T ?? i11 C.J '% i -? ` C .? ?rrt . . - ; rte? .T1 ?,.' ti IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION THE CINCINNATI INSURANCE CO. AND ELMER R. WRIGHT, Plaintiffs, CASE NO. 08-1723 VS. ALAN KEITH NEWMAN, AND SMITH TRUCKING, INC. Defendants. AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF BLAIR 1. I, Ivan Fetzer, am the Chief Financial Officer of Smith Trucking, Inc. whose principal place of business is 331 E. Closson Road, now known as 153 Smith Transport Road, Roaring Spring, Pennsylvania 16673. 2. Smith Trucking, Inc. is a Pennsylvania corporation with its principal place of business located at 331 E. Closson Road, now known as 153 Smith Transport Road, Roaring Spring, Pennsylvania 16673. "EXHIBIT B" 3. Smith Trucking, Inc. conducts business in the Commonwealth of Pennsylvania. 4. Smith Trucking, Inc. was never served with original process by Writ of Summons at the principal place of business located at 331 E. Closson Road, now known as 153 Smith. Transport Road, Roaring Spring, Pennsylvania 16673. 5. No agent authorized by Smith Trucking, Inc. received service of process of the Writ of Summons. 6. A true and correct copy of the Certificate of Incorporation issued by the Secretary of the Commonwealth for the Commonwealth of Pennsylvania for Smith Trucking, Inc. is attacked hereto as "Exhibit A". IVAN ETZER Sworn to and subscribed before e thisday of 2010. Notar i COMMONWEALTH OF PENNSYLVANIA Notarial Seal Tammy J. Roudabush, Notary Public East St. Clair Twp., Bedford County My Commission Expires Dec. 18, 2010 Member, Pennsylvania Association of Notaries ?Q?? ? 87761923 t department of State CERTIFICATE OF INCORPORATION QDffire of the Serretaq of the Gramanimalth 'To 111 to Ohara These 11resents Shall (game, Ceeting: hP USA Under the provisions of the Laws of the Commonwealth, the Secretary of the Commonwealth is authorized and required to issue a "Certificate of Incorporation" evidencing the incorporation of an entity. phMaS, The stipulations and conditions of the Law have been fully complied with by S M :1 t• I-I •T• R ;_J is 1< :C t4 is , is t4 c- .. '+49MVIrE, ?MAW Vti That subject to the Constitution of this Commonwealth, and under the authority of the Laws thereof, I do by these presents, which I have caused to be sealed with the Great Seal of the Commonwealth, declare and certify the creation, erection and incorporation of the above in deed and in law by the name chosen hereinbefore specified. Such corporation shall have and eryoy and shall be subject to all the powers, duties, requirements, and restrictions, specified and enjoined in and by the applicable laws of this Commonwealth. (6 tlien under my Hand and the Great Seal of the Commonwealth, AA_ at the City of Harrisburg, this d day of D e c ei 1:? a r• in the year of our Lord one thousand nine hundred and g h t Y > e v e-ri and of the Com nwealth the two hundred •t• uat., I. -f t I--, VecretarY0_)6VC_0Mmonf# 4 (7) "EXHIBIT A" DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I D # 69179 THE CINCINNATI INSURANCE CO. IN THE COURT OF COMMON PLEAS PO Box 145496 OF CUMBERLAND COUNTY Cincinnati, Ohio 45250-5496 PENNSYLVANIA and Elmer R. Wright 1671BNCR900E Arcola, IL 61910, Plaintiffs V. Alan Keith Newman 79 Brookhaven Place Henderson, NC 27536-8483 and Smith Trucking, Inc. 770 N. Church, Suite F Elmhurst, IL 60126, Defendants No. 08-1723 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO THE PROTHONOTARY: PRAECIPE Service of the Writ of Summons was perfected upon the Defendant Alan Keith Newman on or about April 18, 2008 in Henderson, North Carolina by regular US Mail. Date: ?u By: -?/ Esquire Attorney for Plaintiffs "EXHIBIT C" CERTIFICATE OF SERVICE AND NOW, this 10th day of October, 2008, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Praecipe for Proof of Service, by depositing same in the United States mail, certified, postage prepaid, return receipt requested, in Mechanicsburg, Pennsylvania, addressed to: Smith Trucking, Inc 770 N. Church, Suite F Elmhurst, IL 60126 Date: /o By: J Donald esseyn, Xquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney LD. # 69179 ! .a ... ??;. ? ?? ?? ? ? 3 VERIFICATION I, the , lwvn5 c?wn?st?a of SMITH TRUCKING, INC., hereby swear and affirm that the facts set forth in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Smith Trucking, Inc., a Pennsylvania Corporation Date: S-a1 ' 1y By: It s Kgo % r? ,? , k" n c ea CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the day of MAL 2010, a true and correct copy of the within Preliminary Objections was forwarded to all counsel of record, by United States Mail, postage prepaid and addressed as follows: Donald M. Desseyn, Esquire 4999 Louise Drive Suite 103 Mechanicsburg, PA 17055 ROMANI AND ROMANI By: VJQV1u H. nUIRdlll/ r?5(JU I Le Romani and Romani 720 Second Street P.O. Box 207 Cresson, PA 16630 (814) 886-7000 DONALD M. DESSEYN, Esquire ATTORNEY FOR PLAINTIFFS 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY and PENNSYLVANIA Elmer R. Wright, CIVIL TERM NO. 08-1723 c> ^? Plaintiffs V. CIVIL ACTION - LAW Alan Keith Newman and Smith Trucking, Inc., Defendants ct? JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes Plaintiffs, the Cincinnati Insurance Company and Elmer R. Wright (hereinafter "Plaintiffs"), by and through their counsel, Donald M. Desseyn, Esquire, and files the following Response to Defendants' Preliminary Objections pursuant to PA. R.C.P. 1029 and in support thereof states as follows: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. Plaintiff admits that the Defendant, Smith Trucking, Inc., has a principal place of business at 770 N. Church, Suite F, Elmhurst, Illinois 60126 based upon the information provided by Defendant Alan Keith Newman to the Hampden Township Police Department. (See copy of accident report dated March 30, 2006 attached hereto as Exhibit "A".) 4. Denied. Defendants' agent, Alan Keith Newman, provided improper and/or falsified information to the Hampden Township Police Department at the time of the accident indicating that Smith Trucking, Inc., was located at 770 N. Church, Suite F, Elmhurst, Illinois 60129. Accordingly, Plaintiff obtained service at that address. Siler v. Kahn, 689 A.2d 972, 973 (Pa. Super. 1997) ("Where Plaintiff seeks to serve a Defendant at an address the Defendant provided to the police when making their report, the Plaintiff has made a good faith effort at service.") Moreover, Defense counsel forwarded correspondence dated April 8, 2008 advising that he represented the Defendant, Smith Trucking, Inc. In the correspondence, counsel advised that its client, Smith Trucking, Inc., had received the Writ of Summons which had been filed in the Court of Common Pleas of Cumberland County. (See, copy of correspondence dated April 8, 2008 attached hereto as Exhibit "B".) 5. Denied. See Response to Response Number 4. Moreover, Defendant has waived its right to object to defective service of process. Ball v. Barber, 621 A.2d 156 (Pa. Super. 1993) ("Once a party takes action on the merits of a case, he waives his right to object to defective service of process.") In this case, pursuant to correspondence dated April 8, 2008, Defense counsel indicated he was representing Smith Trucking, Inc. Moreover, pursuant to said correspondence, counsel initiated discovery by requesting information relative to the subject accident. Accordingly, "once a party takes action on the merits of a case, he waives his right to object to defective service of process." O'Barto v. Glossers Store, Inc., 228 Pa. Super. 201, 324 A. 2d 474 (1974). In this case, the request for the information sought by counsel has no relevancy to the issue of whether Plaintiff was properly served and could have been requested only in connection with the merits of the liability and damages portions of this action. Ball, 423 Pa. Super. 362,621 A.2d 158. 6. Admitted. 7. Denied. The certificate states the time upon which service was perfected (on or about April 18, 2008); the place (Henderson, North Carolina); and manner of service (by regular US Mail). Moreover, Plaintiff asserts that the period of time to reissue the Writ of Summons has not expired based upon Lamp v. Hem, 469 Pa. 465, 366 A.2d 882 (1976) (noting that the filing of the Writ tolls the Statute of Limitations provided Plaintiff makes a good faith effort during the life of the process to effect services which it has done in this case. See, Siler v. Kahn, 689 A.2d 972, 973 (Pa. Super. 1997). Further, Plaintiffs attempted service via certified mail return receipt requested on March 19, 2008 at the address given by Defendant Newman to the Hampden Township Police Department which was returned on April 12, 2008. The Writ was then forwarded via regular mail on April 13, 2008 and was not returned and therefore was deemed delivered pursuant to Pa. R.C.P. 404. 8. Denied. See Response to Number 7. Moreover, if in fact this Court should determine that Defendant, Alan Keith Newman has been improperly served, Plaintiff requests leave to obtain service upon Defendant as Defendant has made a "good faith effort" to perfect service pursuant to Lamp v. Heyman. In addition, Defendant has waived its right to object to defective service of process by initiating discovery. Ball v. Barber, 621 A.2d 156 (Pa. Super. 1993). 9. Admitted. 10. Denied. Plaintiff asserts that it has properly served the Defendants in this case. Moreover, Defendant has waived its right to object to defective service of process by initiating discovery in this case pursuant to Ball v. Barber, 621 A.2d 156 (Pa. Super, 1993). Further, Defense counsel specifically requested by verbal communication that Plaintiffs' counsel refrain from filing the Complaint in this action to allow Defendants an opportunity to evaluate the information requested which was forwarded on May 20, 2008. (See copy of correspondence to Attorney David A. Romani dated May 20, 2008 attached hereto as Exhibit "C".) Counsel then 09/11/2006 MON 13:11 FAX 2003 NOTIFI;A TION PON OF ACCIDENT INVESTIGA ?j? 11C.JV? "-'N t L lbtt?#AML. PM nMHW POLICE QE WMW `7 230 3 Q11111 SPtlRithl6 HILL , M9WANCWR% PA 170554M + (717) 761-2609 Na641; heareby given that the accident identified below is being,i.. by the Hampden Towmship Police and I= the Congnanweatth of Pennsylvania Police Accident Report will be submitted as preSCAWd by Section 3746 (c) of the Vehicle Cade. P0[!PE KNM THE Alta WE OF A=9iT , Lf4 1Ar IWAM11 OF ACgll r / t ?i ? ° r `f R oP ars wt1T? ?? rt F Cr. n oRR 1 [ l: / Uk ?awfJ!?`T' f}. 1y _ ....1 .44f ?jF`, t w ?r UNIT #1 U#WT e S& LEQALI.Y Y Nr e® O 37. W. I S& Sm wt 3 t 39. LWAW Y PARKEQ? O 37. ?IR#. L r 1G 1 `' ' PLAiE ^ : 89 ?TAATE J r ? W m RAM . T [ nl ` ;?. t q 4 • , !.ta r SB- PA Otr~ m . -. ^ 1 ( a - ' vM} ? ? ? 7 7- r ? " i e • 1 r? 1 ' •''.?J'• k ?, . i' .. ) 3 . 1 r d "!_ . 'j 40. r ' 44 7Cr? ?r ` l /4R r ;iiC : t.;f. sit ? :y =j o 41. '"OR 41. OWNI., 7/8- r" a ZIP S DE !" /?," I [??: i f „`? 7„ , g .a .. j? "Cr3 r ;3 a ?Il F,414/17- 41 TEAR + 44. ?'? +1( ,E.; 43 TEAR 46 MMM 45. MLA bw Bourivm4 41 Y Ct?` N O LINK 0 45. Um (11QT 80oTTTP4 4e. 1116.1 •• Y e N? UNK ..? SPECrAt U* VOWE TYPE owmmsr TYPE OIRIump OWAU bLt B Z (s ? Sems ama POW m vow qli? se 0eY91 SASE now MOM .x. SL Dreg 1 + / n jl?l •..(Jt;i73 1?[ f.+.i ?w4l /fi'V 1 5B DUIr? I r j _ t ' NAi'?C'' a: ilifi ?r erw,.i 771 A AM= BEL Co. ME &?GDDE 7"; t- C' 1? J 11 F41f f 'r" c?3 tip _ j t ^ r OL =.4m t ' t'. ? ? t r•t. 3 ZIP Gm ' 1 r ' C Bt. sa } "' ,--? G - PfHW 8Z WE OF m . 1.l 62. 0W OF ? r ? SRN 8111tH r S r 84 COIAe Y91 11tMY81 _ ""' ` = s . h iy 84 V91 Y ? I 64. 001" MA56 A I a - :i t.f St 3f s Y I N O LASS ? . -eu, oh + M 1 S t tF : r OL WRIER AeDf1l3SC.I M SL OME AoetiB6$ ' ar fxloe '? ^?. GOL Cu.MTE 70. USOOT 8 ex? 70. if m * 1x31 1 RIC # l2. VBL com LR Q9 X Gm 72 9? 73 mmum ? T& ffm M HM (W m HATl11 i 1. FAIM M NA2 MA7 ?L N0. OF BAS TT. RMOZE'WW NK AnM Ma Ems TO NO UNK O 1 AXM MATE K,4 Y N O tam MWAU Y L t n., A I A e 91; .,dz , ?r rc n .t`1s WNROW r inls ?, t. ..._ POLICYNO j;, -u?t[02-- P1'ND ?' ,i?+ 5 ??' ' M e6tMPIM W t1/uMW PPROMN DIMNfA AM= PIiOfE 1 `r' Y 7 •:.j . ^ :i • ?• r ; 4 :. .. . • -...? 3 1, i - // ' had a telephone conference with Attorney Romani discussing the merits of the case in the Fall of 2008; and again in the Fall of 2009. Accordingly, Defense counsel affirmatively took action on the merits of this case and thereby waived any right to object to defective service of process. Id. (See also, Chimenti v. Hernandez, 9 Pa. D&C 5`" 118 (Pa. Com. Pl. Ct. 2009.) WHEREFORE, Plaintiffs, the Cincinnati Insurance Company and Elmer R. Wright respectfully requests that this Honorable Court enter Judgment in their favor and against Defendants in the amount of $16,577.40 together with interests, costs and any other relief deemed just and proper by this Court. II. INSUFFICIENCY OF PLEADING 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Denied. To the contrary, Paragraphs 17j and 17n, read in context with the Complaint as a whole, are stated in a "concise and summary form", placing Defendants on notice of the claims against it which it must defend and permit Defendants to formulate an Answer. Accordingly, the issues raised would be better addressed via a motion once factual information is determined during the discovery process. WHEREFORE, Plaintiffs, the Cincinnati Insurance Company and Elmer R. Wright respectfully request an Order denying each of the Defendants' Preliminary Objections. 1 Date: OG 09 ZD/D By: Donal Attorney for Plaintiffs 0,4111!2000 11:33 12172084251 PAGE 0-0/ 18 'NOTIF! PON' OF. A IOENT IMVESTIGATION 7? 57 a.7? T ?? w H?kMM MM MP POLICE MP* AIh'II W 230 501RH SPDRTING HILL ROAD, MMNAMCSB , PA'17Rs5-M7 • R17) M-2M R T(Qti(;Is heareby given that the eocident identified below is beinwAWMd by the Hampden Township Poileo'and that the .. Commonwealth of Pennsylvania Police Accident Report will be submitted as preacrlbed by Section 3748 (e) of the Vehicle Code. rx pew MOM81;R TIME AND DA7E OF ACCID9tt - H1\ G . ? 0 ? ? ? arAC?'s wurE v o ' A . ok c? ? U #1 UNIT #2 M. I 0 37. 3e, BTATE 3S UWW 0 e. PLATE PARKED? INO• , 4 P5bH5k N 3?'? X.PA XK?1? X1 S ,3T 40. 41. A 9 ,.,,} ?l 41. OINN NO* j Et1 / 7/ ff ; I c'? 41 2V ?9TATE. y , 4L 21 o, 49. YN ` MAKE 40. YEJW a, MW Cf ?S ? e Lueo 45. %M%t 4& 45. M I Se N6. Y N ? UNX ? No UNK O 48 49. volt B?IAL ?. TYPE UB ONNIM" TYPE OWNER" S0: M L IMPACT 51. 62 T1kN1? 60, I+'A7 61. Y lSNIM 32. TAMtEI $ PM ? 53, E 54. r`-7 56, 33. 61. ? .-1 P bE N 58 /.l fP31 S ? o 5T { j / 66. - 11 4 5T. M p 6 ^ Vl mod' se. 14 l r '" Ne J " M P? ? l r?t f k• w N n 7 W 1 ? NAME . r r 11 58. DRM ?^? c, r AD 6 V( AM= ?MTE • ?s ? 53?? $?' S? °°. ??? l?• +? ? L ?' ?D l? av Nc, . . c o 81. SEX 82. DM OF !) /? 83 PHONE _ 61. 6EX - y? . OF ? DEAE I -qo ' 17 ^ NONE RtN 94. Vol, 88. MM/ A E , p ,? p I& M. 9 I I 1 Y ? MW we. 0 0 am PJ 1 1r?41 C *V1 sS? c1?Y6?- ASS A MMM ADOIIESS in. CITY. STATE %, tDTY, STATE 6 ZIP CODE. 6 DP M M. UMOT # !CC 0 10, tam* ICC ke / T2 vfN 18. cMM 74, 4YMIR 72. VIM, 7D, CARfiO 14. GWM OONMG. WM 7YPE CONRO. BOD1r TYPE 75. NO. OF AXM 76 NAtUMB MATERIALS 17.. RELEASE OF NAZ MAT Y' D N Q tMK O $ ND. OF .. ULM 70. MAIMOM IMT&MAIB 77. AT Y N? IMMANN CO~ 6S M ` ? , NIFORMAMN J 1IIt tpt4 N ?! 19 - DNrr at - POLICT NO, t o 1 - bINT s4 - P M NNO, c ? o? 05. DESOMPTION OF DAMAGED PRDPER7Y OWNER ADDRM PHONE ALIUMNAL tNMRNxMw.? y j?t? P ?NN C A f- f' P-// 11ILL4 ? ?V,?6N 17 , t 717/CSG? 717 ROMArII AND RoMAm ATTORNEYS AT LAW 720 SECOND STREET P. O. BOX 207 CRESSON, PENNSYLVANIA 16630 (814) 886-7000 FAX: (814) 886-5952 April 8, 2008 Donald M. Desseyn, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 RE: Cincinnati Insurance Co. and Elmer R Wright vs. Smith Trucking No. 08-1723 Dear Mr. Desseyn: This office represents Smith Trucking, Inc. We received from our client a copy of the Writ of Summons filed in the Court ef. Com.mor. Pleas of Cumber -ind County. We are in the process of gathering information with regard to this claim and request that you provide to us the information, necessary tc evalsate this claim. Please submit the following to our office. 1. Your client's claim file and aii information ar,a statements receA?,ed with regard to this accident. 2. Your client's driver and passenger statements. 3. Copy of the complete telephonic transcribed statements and records obtained from any party with regard to t'iis accident. 4. Copy of all damage estimates, checks and invoices for this accident.. vnCa we C'Gt-..in t)-:i:, w'i.li C 1 , :r.l.,._ -:. filing any pleadings in this matter. Please contact us with any questions. Thank you for your_ time and cooperation. Sincerely yours, ROMANI AND_ ? NI vid A. Fomani, Esquire DAR/bv DONALD M. DESSEYN HAPksBURG, PA CINCINiv_ATS., OH .EVELk.ND, OH DA;^rON, OH GREGORY E. CASSIMATIS MARK J. HULLER .. UCK S. CORRIGAN BRIAN R. MCHENR)' DONALD M. DESSEYN'' G. GREGORY I.FNTS ATTORNEY AT I.AW* JOHN F. CANNON RORP.RT J. JANES THOMAS K. IYICJIZACHIN MOLLY S. HARBAUGH STEVEN E STOFEL AKRON, OH I EUGENE M. GELI'AND SUITE 103 MICHAEL. D. FITZI!4TRICK JEFFREY A. I-IAzLETr MARY S. PETERSON BARRY A. MEYER KEITH D. THOMAS JONATHAN C. TURNER Louis M. DEMARco DAVIT) J. BALZANO 4999 LoutsE DRIVE DENNIS G. REHOR NIATTHLW M. SCHMII)T STEPHEN J. CHUPARKOFF MATTHEW R. SKINNER WILLIAM M. SHACKELFORD HELEN KYRIOS MECHANICSBURG PA 17055 COLUMBUS OH DETROIT MI MARK S. HURA MARK S. KEITH W. COLLF.TI , , DANIEL G. TAYLOR , PAUL. J. JOHNSON JUSTIN A. DUBLIKAR THOMAS C. HOCAN MICHAEL J. MCLANE ROBERT P. HURLEY ATLANTA, GA JOSEPH A. M.cGrr TELEPHONE (717) 791-0400 ALAN E. MAZER JILL L. ZYSKOWSICI' JAMES T. PERRY '' JOHN K. BENINTENDI JASON P. WAINSCOTT FACSIMILE (717) ?7 ! 91-0524 J. RicFL%RD SHOWN BEAU K. RYMERS TOLEDO 0I3 BERNARD F. KISTLER, JR. JEANNE F. JOHNSON DAVID K. KOON DAVID J. HEINLEIN , S'IF.PHLN C. ROACH'' THOMAS J. PAVLOFF _ BRADLEY E. SHERMAN MiciIALL L. CLARI. ALEXANDRA B. BOWEN BRIAN A. NEWHERG ANDREW R. SCHUMAN BIRMINGHAM, AL JACK CRISWELL' 'ALSO ADMRTED IN GA JENNIFER T. DEWEESE ALSO ADMITTED IN MI BENTLEY H. PATRICK 1ALSO ADMITTED IN OH IAIS0 ADMITTED IN MD - 'ALSO ADMITTED IN SC ALL ABOVE ATTORNEYS ARE EMPLOYEES ATTORNEYS DCENSED ONLY IN DESIGNATED STATES tINUSS DT 1"MSE INDIuTED. ALSO ADMITTED IN MS ALSO ADMITTED IN IL OF THE CINCINNATI INSURANCE COMPANY May 20, 2008 David A. Romani, Esquire 720 Second Street P.O. Box 207 Cresson, PA 16630 Re: Cincinnati Insurance Company and Elmer R. Wright v. Alan Keith Newman and Smith Transportation Cumberland County Court of Common Pleas, No. 08-1723 Dear Mr. Romani: Enclosed please find copies of the information you requested in the above matter. Plaintiff's claim file and all information and statements regarding the accident; 2. Plaintiff's statements regarding the accident; 3. Copy of the complete telephonic transcribed statements and records obtained from any party with regard to this accident; and 4. Copy of all damage estimates, checks and invoices for this accident. After receiving this information, please contact us within thirty days and advise of your position. If you should have any questions, please so advise. Sincerely, Donal M:besseyn' DMD/j eb Enclosures . F.,' ,l ,TLD ABOV ARIt k. NF.. iFlil? ISUT P: ACTi,7T T oc T. HER A, A.o,0C1A7FD f'..T'r 11 P. ;:, rlv 'i,OITD B1' _i r.; :. n if. ,.• :,.1::' .)r. „'1'IST rr, ,. T._:PRJ InTr . Hr 1 I "._'! TN\ 1t ..NC;. '1'°_.'i /-;' T?iIII '. !'m l,. I CERTIFICATE OF SERVICE AND NOW, this 9th day of June 2010, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati. Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Plaintiffs' Response to Defendants' Preliminary Objections Interrogatories by depositing same in the United States mail in Mechanicsburg, Pennsylvania, addressed to: David A. Romani, Esquire Romani and Romani 720 Second Street PO Box 207 Cresson, PA 16630 Date: 0 9 /d By: Donald seyn, squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 PRAECIPE FOR LISTI G CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) -0 THE CINCINNATI INSURANCE COMPANY rnm .00 AND ELMER R. WRIGHT r- ! -<> rv vs. ? rQ ALAN KEITH NEWMAN AND SMITH TRUCKING, INC. ' No. 08-1723 CIVIL o 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs' Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Donald M. Desseyn, Esquire, 4999 Louise Drive, Suite 103, Mechanicsburg, PA 17055 (Name and Address) (b) for defendants: David A. Romani, Esquire, 720 Second Street, PO Box 207, Cresson, PA 16630 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. All parties will be copied this form along with correspondence regarding same. 4. Argument Court Date: Friday, March 25, 2011 Date: 02/28/2011 Donald M. Desseyn Print your name Plaintiff Attorney for ) `Y`} Q c"r r r-1 INSTRUCTIONS: 1. Original and 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. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter foci ernex,;. Argument Court.) -� CAPTION OF CASE (entire caption must be stated in full) r';y —+1 r The Cincinnati Insurance Company and Elmer R. Wright = r' vs. Alan Keith Newman and Smith Trucking, Inc No. 08-1723 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs'Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Donald M. Desseyn, Esquire, 4999 Louise Drive, Suite 103, Mechanicsburg, PA 17055 (Name and Address) David A. Romani, Esquire, 720 Second Street, PO Box 207, Cresson, PA 16630 (b) for defendants: (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 4,2014 Signature rent your name Plaintiffs J Attorney for Date: ® '6/Z-ei Jl INSTRUCTIONS: 1. Original and 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 14 days prior to argument. 3. The responding party shall file their brief 7 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.),��k* ' pl 1�j S3C0 DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR PLAINTIFFS THE CINCINNATI INSURANCE CO. : IN THE COURT OF COMMON PLEAS and ELMER R. WRIGHT, : OF CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA v. ALAN KEITH NEWMAN and SMITH TRUCKING, INC. Defendants CIVIL TERM NO. 08-1723 CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW REQUEST FOR ARGUMENT TO THE PROTHONOTARY: Please withdraw the above-captioned matter from Argument Court scheduled for April 4, 2014. Date: ,o..frie' By: Donald esseyn, squire Attorney for Plaintiffs 3.›. --.. — cr ..A,... --‹: r N.) — , CERTIFICATE OF SERVICE AND NOW, this 10th day of March 2014, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Praecipe to Withdraw Request for Argument by depositing same in the United States mail in Mechanicsburg, Pennsylvania, addressed to: David A. Romani, Esquire Romani and Romani 720 Second Street PO Box 207 Cresson, PA 16630 Date: ,oieoi By: Donald M. 1 - sseyn, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791 -0400 Attorney I.D. # 69179 DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 THE CINCINNATI INSURANCE CO. and ELMER R. WRIGHT, Plaintiffs V. ALAN KEITH NEWMAN and SMITH TRUCKING, INC. Defendants rr ATTORNEY FOR PLAINTIFF§ P THONOT 2014 APR 214 PM 2: 05 CUMBERLAND COUNTY PENNSY1 VANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL TERM NO. 08-1723 CIVIL ACTION - LAW - : JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Please mark the above-captioned matter as settled, discontinued and ended. Respectfully Submitted, Date: d By: Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 23rd day of April 2014, I, Donald M. Desseyn, Esquire, Attorney for Plaintiffs, The Cincinnati Insurance Company, Inc. and Elmer R. Wright, hereby certify that I served a copy of the foregoing Praecipe to Settle, Discontinue and End by depositing same in the United States mail in Mechanicsburg, Pennsylvania, addressed to: Date: David A. Romani, Esquire Romani and Romani 720 Second Street PO Box 207 Cresson, PA 16630 By: Donald M. sseyn, squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179