Loading...
HomeMy WebLinkAbout08-4477WILLIAM A. ADDAMS ATTY. I.D. # 06265 43 W. South St. P.O. BOX 261 CARLISLE, PA. 17013 717-243-7638 BARBARA DICKINSON : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNY, PENNA. Plaintiff VS. CIVIL ACTION LAW KEYSTONE FREIGHT CORPORATION and MICHAEL DODDS : NO. 0 7 Defendants NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in 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. Court Administrator Fourth Floor Cumberland County Court House 1 Court House Square Carlisle, Pa. 17013 717-240-6200 William A. A ams Attorney for Plaintiff W. WILLIAM A. ADDAMS ATTY. I.D. # 06265 43 W. SOUTH ST. P.O. BOX 261 CARLISLE, PA. 17013 717-243-7638 BARBARA DICKINSON Plaintiff VS. KEYSTONE FREIGHT CORPORATION and MICHAEL DODDS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNY, PENNA. CIVIL ACTION LAW NO. 0 B- y 4 7 7 CL4; 4 7? -. Defendants COMPLAINT And now comes the plaintiff, Barbara Dickinson, by her attorney, William A. Addams, and makes the following complaint: 1. The plaintiff is Barbara Dickinson, an adult individual residing at 2613 Waltham Court, Crofton, MD 21114. 2. The defendant, Keystone Freight Corporation, is a corporation with offices and principal place of business at 2545 Parson Ave., Columbus, OH 43207. 3. The defendant, Michael Dodds, is an adult individual residing at 167 Rustic Drive, Shippensburg, Cumberland County, PA 17257. 4. The plaintiff is the owner of a 2007 Chevy Trailblazer, which on December 29, 2007, was slowing to make a right turn into the motel at 1245 Harrisburg Pike, Carlisle, PA, when it was rear-ended by a Keystone Freight Corporation tractor trailer unit operated by its employer, Michael Dodds. 5. The defendant, Michael Dodds, was negligent and careless in: a. Traveling too fast for conditions; b. Failing to observe the plaintiff's vehicle in time to avoid a collision. c. Failing to have his vehicle under control; 6 The defendant, Keystone Freight Corporation, is vicariously liable for the negligence and carelessness of its agent, servant and employee. 7. As a result of the negligence and carelessness of the defendants, the plaintiff's vehicle was damaged in the amount of $16,458.90. In addition, the plaintiff incurred rental expenses of $1,874.67. 8. The defendants have acknowledged liability and have paid $7,244.70 leaving a balance due of $11,088.87. WHEREFORE, the plaintiff demands judgment against the defendants in the amount of $11,088.87, plus interest and costs of suit, an amount within the jurisdiction of arbitration under the local rules of court. William A. A dams Attorney for Plaintiff VERIFICATION William A. Addams, hereby verifies that the facts set forth in the foregoing complaint are true and correct to the best of her knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: July 23, 2008 William A. A dams R cA -T I LAj n SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2008-04477 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DICKINSON BARBARA VS. KEYSTONE FREIGHT CORP ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT KEYSTONE FREIGHT CORPORATION by United States Certified Mail postage prepaid, on the 28th day of July ,2008 at 0000:00 'HOURS, at 2545 PARSON AVE COLUMBUS, OH 43207 and attested copy of the attached COMPLAINT & NOTICE , a true Together with The returned receipt card was signed by ROBERT SCHOLL on 07/30/2008 . Additional Comments: Sheriff's Costs: So answers- Docketing 18.00 Service 5.55 R. Thomas Kline Affidavit .76 Sheriff of Cumberland County Surcharge 10.00 34.31 q?o??u F ?`^ Paid by WILLIAM ADDAMS on 08/06/2008 Sworn and Subscribed to before me this day of A.D. I SHERIFF'S RETURN - REGULAR CASE NO: 2008-04477 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DICKINSON BARBARA VS KEYSTONE FREIGHT CORP ET AL SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served 'upon DODDS MICHAEL the DEFENDANT , at 1224:00 HOURS, on the 2nd day of August , 2008 at 167 RUSTIC DRIVE SHIPPENSBURG, PA 17257 by handing to MICHAEL DODDS a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 19.00 Affidavit .00 Surcharge 10.00 00 9lb??o5'i 3 So Answers: R. Thomas Kline E 08/06/2008 WILLIAM ADDAMS Sworn and Subscibed to By: before me this day of , A.D. ¦ *M 1, 9, Via! & Aho oai1$1 In Item 4 K Res Atclsd DeN wy is desired. ¦ Prhht your warns and adds, on the mvww so that we cart aeM, the owd to you. ¦ Attach this acrd to the back of the nvio os, or on the front M epece pemhita. 1. Ardde AddrenW t0: Keystone Freight Corporation 2545 Parson Avenue Columbus, CH 43207 710051 L?5'140 01131301 PS Form 3811, February A. Aqw t Received by (PrfnEsd Moms) _ C. D. k do" addmn dita fiom lawn 1? 0 Yes M YES, enter del wi y addres 1 J)elow: D No 3. swvios?Aw X ca"w Mae r 3p; -Mee D Repteter 0 0 Return Reoel -w Mmdw do D k¦rrad MaN 0 ao.D. 4. Rearicoea D~(EkftFoO Cl Yes 12JW9 £ i (( 11 (( (Q8-1477 (civil d 102505-024A-1540 ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY * P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 Suite 1200 1515 Market Street Philadelphia, PA 19102 (215) 569-2800 BARBARA DICKINSON Plaintiff, vs. KEYSTONE FREIGHT CORPORTION and MICHAEL DODDS Defendant, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 08-4477 JURY TRIAL DEMAND ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants, Keystone Freight Corporation and Michael Dodds in the above matter. DEMAND FOR A JURY TRIAL BY A JURY OF TWELVE MEMBERS Defendant, by their undersigned attorney, hereby request trial by a jury of twelve members. ZARWIN ? BAUM ? DEVITO KAPLAN ? SCHAER ? TODDY* P.C. BY: IV X . TODDY, ES . c?? t: ? ? t ?? r ?, a ? ?.t ? TO THE HEREIN: Plaintiff You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days of service thereof or default judgment may be enter d against y u . BY: JO . TODDY, EsQAW ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY * P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 Suite 1200 1515 Market Street Philadelphia, PA 19102 (215) 569-2800 BARBARA DICKINSON Plaintiff, vs. KEYSTONE FREIGHT CORPORTION and MICHAEL DODDS Defendant, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 08-4477 JURY TRIAL DEMAND DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendants, Keystone Freight Corp. and Michael Dodds, by its attorneys, Zarwin, Baum, DeVito, Kaplan, Schaer, Toddy, P.C., hereby answers Plaintiffs' Complaint as follows: 1. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. 2. Denied. To the contrary, Defendant, Keystone Freight Corp. (hereinafter "Keystone Freight"), is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania and maintains a principal place of business at 2820 16th Street, North Bergen, New Jersey. 3. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. 4. Denied. Defendants generally deny the factual allegations of this paragraph in accordance with Pennsylvania Rule of Civil Procedure 1029(e). To the extent that the allegations of this paragraph constitute legal conclusions, no responses are hereto required. 5. Denied. This averment is denied as a conclusion of law to which no response is required. 6. Denied. This averment is denied as a conclusion of law to which no response is required. 7. Denied. Defendants generally deny the factual allegations of this paragraph in accordance with Pennsylvania Rule of Civil Procedure 1029(e). To the extent that the allegations of this paragraph constitute legal conclusions, no responses are hereto required. Further, this averment is denied as a conclusion of law to which no response is required. 8. Denied. Defendants generally deny the factual allegations of this paragraph in accordance with Pennsylvania Rule of Civil Procedure 1029(e). To the extent that the allegations of this paragraph constitute legal conclusions, no responses are hereto required. Further, this averment is denied as a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER 9. Plaintiff's alleged cause of action is barred by the applicable Statute of Limitations for any acts or omissions occurring more than two years prior to the filing of the Complaint. 10. Defendants aver that they previously paid $7,244.70 to Geico Insurance Company acting on behalf of Plaintiff as an agreed upon settlement of the property damage in this matter. 11. Defendants aver that Plaintiff is not entitled to any additional damages above the $7,244.70 which Defendant has previously tendered. 12. The alleged damages to Plaintiff or cause or contributed to in whole or in part, by the negligence or want of due care of persons, parties and/or organizations other than Answering Defendants and over whom said Answering Defendants had no control or right of control or responsibility. 13. The Complaint, in whole or in part, fails to state a cause of action upon which relief can be granted. 14. Defendant asserts all of the defenses available under the Motor Vehicle Financial Responsibility Law, 75 P.A.C.S. §1701, et. seq., and avers that Plaintiff's remedies are limited exclusively thereto, and therefore, the present action is barred or limited. 15. Plaintiff's claims, if any, are barred, in whole or in part due to their failure to mitigate damages. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed with prejudice and that judgment be entered in favor of Answering Defendants. ZARWIN BAUM * DEVITO KAPLAN SCHAER + TODDY* P.C. BY M -/ god 1, J H M. TODDY VERIFICATION Joseph M.Toddy, Esquire hereby states that he is the Attorney of the Defendant in this action and verifies that the statements made in the foregoing Answer to the Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 PAC.S Section 4904 relating to unsworn falsification to authorities. Jo h Toddy, Esquire DATE: l L ?`7 +'..> ?a c`° _ n f ?? ? ? J _3.?. «.>.i : ? ,{ _ ..-.. ..._.. ,,, ,r, 'T.:s? E.1:? r,^n' William A. Addams, Esquire 43 West South Street Carlisle, PA 17013 717-243-7638 Attorney for Plaintiff Atty. ID #20-1727973 BARBARA DICKINSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA V. CIVIL ACTION - LAW KEYSTONE FREIGHT No. 08-4477 CORPORATION and MICHAEL DODDS JURY TRIAL DEMANDED REPLY TO NEW MATTER And now comes the plaintiff, Barbara Dickinson, by her attorney, William A. Addams, and makes the following Reply to the Defendant's Answer with New Matter: 9. The conclusion of law is denied. 10. Admitted. 11. Denied. The allegations in the complaint are incorporated herein by reference. 12.-15. The conclusions of law are denied. WHEREFORE, it is prayed that the New Matter be dismissed. William A. Addams, Esquire 43 West South Street Carlisle, PA 17013 717-243-7638 Attorney for Plaintiff October 8, 2008 William A. Addams, Esquire 43 West South Street Carlisle, PA 17013 717-243-7638 Attorney for Plaintiff Atty. ID #20-1727973 BARBARA DICKINSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA V. CIVIL ACTION - LAW KEYSTONE FREIGHT No. 08-4477 CORPORATION and MICHAEL : DODDS JURY TRIAL DEMANDED CERTIFICATE OF SERVICE The undersigned hereby certifies that on this the 8' day of October, 2008, a true and correct copy of the Reply was served via first class mail upon the following counsel: Joseph M. Toddy, Esquire Zarwin, Baum, Devito, Kaplan, Schaer, 1,515 Market St., 12'h Floor Phila., PA 19102-1981 Toddy William A. Addams Attorney for Plaintiff 43 W. South St., P.O. Box 261 Carlisle, PA 17013 717-243-7638 r o V i ~ BARBARA DICKINSON V. KEYSTONE FREIGHT CORPORATION and MICHAEL DODDS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-4477 20 C1 N ?Q+n RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantiall m °A y Following form: PETITION FOR APPOINTMENT OF ARBITRATORS W TO THE HONORABLE, THE JUDGES OF SAID COURT: WILLIAM A. ADDAMS . counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 11,088.87 The counterclaim of the defendant in the action is N/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: William A. Addams and Brendan G. Lamanna WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. $2t{'60 PCj 41 Respectfully submjtted, R-"k- ?tt`8 ORDER OF COURT AND NOW, . 200-__, in consideration of the foregoing petition, Esq., and captioned action (or actions) as prayed for. Esq., and Esq., are appointed arbitrators in the above By the Court, EDGAR B. BAYLEY BARBARA DICKINSON V. KEYSTONE FREIGHT CORPORATION and MICHAEL DODDS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-4477 20 ?,?{.'tea' 4 Ti V' •J. RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially °l C)"z Following form: _0 PETITION FOR APPOINTMENT OF ARBITRATORS ? W TO THE HONORABLE, THE JUDGES OF SAID COURT: r- WILLIAM A. ADDAMS counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 11, 088.87 The counterclaim of the defendant in the action is N/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: William A. Addams and Brendan G. Lamanna WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. JUE1.00 Respectfully subri tted, ORDER OF COURT AND NOW, l / 20AZr , in consideration of the foregoin petition, Esq., and Esq., and Esq., are ap ted itrators in t bove captione#(oral ac tionsas prayed for. V!fVMAW - By the C ? tl re 13 Wd II AWN 010Z Rte, f ? • ,??? slfz/ ,v DA3Rs, Q C(QJ ?? In The Court of Common Pleas of Cumberland Plaintiff County, Pennsylvania No. C52 - cF4-r T KG)oFA c G4'rG004 V c "Gx- qt>oft?)efendant Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. C * Le,? Signature ignature Signature PrIBEC-l"i W, A-V M ?4 f Name (Chairman) Name Name Law Firm Law Firm 3 2 E?, 00 (Y nQrJ- 7Sr'** ?N //d I/ re v, Address Address r 1 Ct ; Law Firm Address 111'41-3 &-1z :70 atil (5 ?w7fVKlik City, Zip City, Zip City, Zip l f-0(5' Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) . Arbitrator, issent . (Insert name if applicable. Date of Hearing: A-Iw t d ( 0 (Cha an) -- Date of Award: 4?q,,q? (? _ G C,? N©ti.ce of lEbtry of Award Now, the of at -&-.M., the above award was entered upon the docket W notice, e-o %jycr -by- mail to the parties or their attorneys. Arbitrators' compensation to be` a??d use alip?'a $ SU. UU By: aAA Alri rL (1 11 ?? .,q?U4 Prothonotary Deputy -T-7 (F! L IR AU03 AM11 = 5.r CMG ?'?,S /NS??c?. GEf RL e? 1tE A%x ,4dut2MON In The Court of Common Pleas of Cumberland Plaintiff q McccAirr'LLP7 MAGM4J Defendant Signature County, Pennsylvania No2sO(;.- 6 06 Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. N ?(Chaim=)? ABC--gym L,Aw 0?= m4ttz Law Firm' Signature Ackjal WLM Name L,f I"Rittes Of AICLJ TYet Law Firm Address Address t Signature Name I/7LA L-Ay cc°S Law Firm to L. Address C C4c3 Lrli de 1-* 3 /7013 City, zip city, zip city, zip Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, then shall be separately stated.) `t Now, the -JA?tlay of at e?: sz .M., the above award was entered upon the d`ot Of=d-not_Fe q r given by mail to the parties or their attorneys. Arbitrators' comp sion tss be aid'upen appeal: $ 3S Q . erl ' E s ins i l£d? y By: r44 , K . k U"4, Prothonotary Deputy . Arbitratordissts. (Insert name if alicalii Date of Hearing: © - ? (Chairman) Date of Award: S- ,r ? v Notice of Entry of Award CA- q- PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) ?0lU? Pi(I( ; TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. X? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Barbara Dickinson (other) (Plaintiff) vs. Keystone Freight Corporation and Michael Dodds vs. (Defendant) The trial list will be called on N/A and per CCRP 215-1 Trials commence on Pretrials will be held on (Briefs are due S days before pretrials No. 08-4477 (check one) ? Civil Action - Law X? Appeal from arbitration Indicate the attorney who will try case for the party who files this praecipe: William A. Addams Term Indicate trial counsel for other parties if known: Brendan G. Lamanna This case is ready for trial. Signed: _ Print Name: William A. Addams August 20, 2010 Attorney for: Plaintiff CtC? 3G7? ?? aY7og7 Barbara Dickinson Vs Keystone Freight Corp., et al IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.08-4477 NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that Plaintiff Barbara Dickinson appeals from the award of the board of arbitrators entered in this case on Aug. 13, 2010 A jury trial is demanded 11 (Check box if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that P/] 1. the compensation of the arbitrators has been paid, or M2. application has been made for permission to proceed in forma pauperis. (Strike out the inapplicable clause.) 'GJ ? C Appellant or Atto or Appellant r NOTE: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1 (b). No affidavit or verification is required. ? 3 sc?. coo ???? ?? air? ?qT ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY ? P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 1818 Market Street, 13'h Floor Philadelphia, PA 19103 (215) 569-2800 BARBARA DICKINSON Plaintiff, : vs. KEYSTONE FREIGHT CORPORTION and MICHAEL DODDS Defendant, . on C ) i Lin < no COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 08-4477 : JURY TRIAL DEMAND DEMAND FOR A JURY TRIAL BY A JURY OF TWELVE MEMBERS TO THE PROTHONOTARY: Defendant, by their undersigned attorney, hereby request trial by a jury of twelve members. ZARWIN ? BAUM ? DEVITO KAPLAN SCHAER * TODDY* P.C. BY: /. Gam! EPH M. TODDY, ESQUI -" BARBARA DICKINSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. KEYSTONE FREIGHT CORPORATION NO. 2000 - 4477 CIVIL TERM AND MICHAEL DODDS, Defendant ORDER OF COURT AND NOW, this 7TH day of AUGUST, 2010, a pretrial conferences i.?n the above captioned matter is SCHEDULED for OCT `?' t/ 4 aA) ???? 4,4n Courtroom # 3 of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five (5) days prior to the pret=rial conference. By the Coin, Edward E. Guido, J. ? WILLIAM A. z\DDAMS, ESQUIRE RENDAN G. :-AMANNA, ESQUIRE COURT ADMIN--STRATOR t,v `-z- -T1 . Sid c tLL 0 c`? - 5 tai - res in& 0 v , gfrc?`rv -- -?fn ., (AI /-'- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the naxt Argument Court.) ---.----------------------------------------------------------------------------------------- - - - - - -------------- - - - - - - CAPTION OF CASE (entire caption must be stated in full) Barbara Dickinson C? J `'j vs T3 L:7 . Keystone Freight Corporation and Michael Dodds s" 1 A, No. 08-4477 T-erm rn 1. State matter to be argued (i.e., plaintiff's motion for new trial, defenda nt's demurrer dzi -`l complaint, etc.): Plaintiffs Motion for Judgment on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: William A. Addams (Name and Address) 43 W. South St., Carlisle, PA 17013 (b) for defendants: Brendan G. Lamanna (Name and Address) 1515 Market St., 12 Floor, Philadelphia, PA 19102-1981 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 6, 2010 Signature - William A. Addams Print your name Plaintiff Date: Sept. 1 2010 Attorney for 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. , T1 I" TAy 10 Sep CUN!E?w,? - ;{?, 'ITY PENNSYLVANIA BARBARA DICKINSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA V. CIVIL ACTION - LAW KEYSTONE FREIGHT No. 08-4477 CORPORATION and MICHAEL DODDS JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS 1. This case was submitted for arbitration, followed by an appeal filed by Plaintiff. 2. Defendants have filed a demand for trial by jury. 3. The mater has not been listed for trial. 4. 'The Plaintiff is filing this Motion for Judgment on the Pleadings in accordance with PaR.C.P. 1034 to determine the sufficiency of Defendants Answer With New Matter arising the affirmative defense of "accord and satisfaction" required by Pa R.C.P. 1030(a). 5. The Defendants' only mention of payment is Paragraph 10 stating "Defendants aver that they previously paid $7,244.70 to Geico Insurance Company acting on behalf of Plaintiff as an agreed upon settlement of the property damage in this matter." 6. The pleading does not state the terms "accord and satisfaction," nor does it set forth the elements and criteria required by law. 7. The answer is insufficient to raise the defense of "accord and satisfaction" as a matter of law. WHEREFORE, the Plaintiff requests your Honorable Court to rule that the defense of accord and satisfaction has been waived by the Defendants. William A. Ad-dams 43 West South Street Carlisle, PA 17013 717-243-7638 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that the original of the within Motion for Judgment on the Pleadings was served upon Defendant's attorney, Brendan G. Lamanna, Esq. via U.S. first class mail, postage prepaid this _,?3 day of September, 2010 as follows: Brendan G. Lamanna, Esq. Zarwin, Baum, Devito 1515 Market Street 12'hFloor Philadelphia, PA 19102-1981 Res ectfu y submitled, William A.- ams, Esq. Attorney for Plaintiff September 2010 i ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY * P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 1818 Market Street, 13`h Floor Philadelphia, PA 19103 (215) 569-2800 u t -T -.1 ill C- 59 BARBARA DICKINSON COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. KEYSTONE FREIGHT CORPORTION and MICHAEL DODDS Defendant, No.: 08-4477 JURY TRIAL DEMAND DEFENDANTS' REPLY TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANTS' CROSS MOTION FOR JUDGMENT ON THE PLEADINGS Admitted. By way of further Answer, the immediate matter involves a property damage claim. Plaintiff is seeking $16,458.90 for property damage, minus $7,244.70 previously paid by Defendants, plus $1,874.67 in rental expenses. (See Plaintiff s Compliant attached hereto as Exhibit "A"). 2. Admitted. 3. Admitted. 4. Denied. A Motion for Judgment on the Pleadings may only be granted where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. DiGregorio v. Keystone Health Plan E., 840 A.2d 361 (Pa.Super. 2003). In the immediate matter, there are several issues of fact that are in dispute and, therefore, Plaintiff's Motion for Judgment on the Pleadings must be denied. Most notably, Defendants contend that the subject motor vehicle accident was caused, at the very least in part, by Plaintiff's failure to use a turn signal while turning into a motel parking lot. Clearly, this is a factual issue which forecloses an entry of Judgment on the Pleadings. Moreover, even if there were not factual issues, which there clearly are, Plaintiff's immediate Motion for Judgment on the Pleadings must fail as Defendants have, contrary to Plaintiff's contention, plead the defense of accord and satisfaction. Specifically, paragraph 10 of Defendants' Answer with New Matter states "Defendants aver that they previously paid $7,244.70 to Geico Insurance Company acting on behalf of Plaintiff as an agreed upon settlement of the property damage in this matter." Moreover, paragraph 11 of Defendants' Answer with New Matter provides "Defendants aver that Plaintiff is not entitled to any additional damages above the $7,244.70 which Defendant previously tendered." (See Defendants' Answer with New Matter attached hereto as Ex. "B"). While Defendants admittedly did not use the "magic words" of "accord and satisfaction," they did not have to. Defendants pleaded the facts which support the elements of accord and satisfaction. Since Pennsylvania is a fact pleading state, Defendants did exactly what was required under the Pennsylvania Rules of Civil Procedure. By way of further elucidation, an accord and satisfaction requires a disputed debt, a clear and unequivocal offer of payment in full satisfaction, and acceptance and retention of the payment. King v. Boettcher, 616 A.2d 57 (Pa. Cmwlth. 1992); Law v. Mackie, 373 Pa. 212, 9d A.2d 656 (1953). Within paragraphs 10 and 11 of Defendants Answer with New Matter, Defendants have plead the existence of a disputed debt, that an offer in full satisfaction was made and that said offer was retained by Plaintiff. Pa.R.C.P. 1030 does not require Defendants to use the "magic words" of "accord and satisfaction." See West Penn Power Co. v. Piatt, 592 A.2d 1306, 1309 (Pa.Super.1991) (holding that defendants pled sufficient facts to establish the affirmative defense of detrimental reliance) see also Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138 (Pa. Super. 1985) (holding that defendants pleaded sufficient facts to support the defense of unconscionability). Furthermore, the factual pleading contained within Defendants New Matter constitutes the precise manner of pleading contemplated by Pa.R.C.P. 1019(a), which reads "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Based on the foregoing, Defendants have sufficiently pleaded the affirmative defense of accord and satisfaction consistent with the requirements of Pa.R.C.P. 1030 and 1019(a). i In the alternative, should it be determined that Defendants have not sufficiently pleaded the affirmative defense of accord and satisfaction, Defendants are entitled to Amend their Answer with New Matter pursuant to Pa.R.C.P. 126 and 1033. Pa.R.C.P. 1033 provides, in relevant part, as follows: "[a] party, either by filed consent of the adverse party or by leave of court, may at any time ...amend his pleading." Further, in exercising its discretion whether to allow an amendment to the pleadings, a trial court should liberally allow such amendment so as to permit the case to be decided on the merits. Sejpal v. Corson, Mitchell, Tomhave, & McKinley, M.D.'S., Inc., 665 A.2d 1198 (Pa. Super. 1995). An amendment should not be allowed where it will present an entirely new cause of action or will unfairly surprise or prejudice the opposing party. Id. ' As an additional note, Pa.R.C.P. 126 requires the rules to be liberally construed "to secure the just, speedy and inexpensive determination of every action or proceeding." I- f Clearly, the factual allegations contained in Defendants New Matter fairly apprised Plaintiff of Defendants anticipated defenses in this matter. Plaintiff's immediate Motion serves as evidence of such notice. More specifically, as Plaintiff is seeking to prevent Defendants from arguing accord and satisfaction, Plaintiff evidently had notice vis a vis Defendants New Matter that Defendants intended to argue same. Therefore, it cannot be said that the presentation of this defense will present an unfair surprise to Plaintiff. To the contrary, and as the court concluded in Sejpal, allowing Defendants to present this defense will allow for the matter to be decided on the merits. 5. Denied. See Answer to 4. 6. Denied. See Answer to 4 7. Denied. See Answer to 4. WHEREFORE, Defendants, Keystone Freight Corporation and Michael Dodds, request this Honorable Court deny Plaintiff's Motion for Judgment on the Pleadings and grant Defendants' Cross Motion for Judgment on the Pleadings. DEFENDANTS' CROSS MOTION FOR JUDGMENT ON THE PLEADINGS Defendants incorporate by reference their Answers to paragraphs 1-7 as if more fully set forth herein at length. 9. Within paragraph 10 of Defendants' Answer with New Matter, Defendants aver "that they previously paid $7,244.70 to Geico Insurance Company acting on behalf of Plaintiff as an agreed upon settlement of the property damage in this matter." (See Ex. "B"). 10. In Plaintiff's Reply to New Matter, Plaintiff replies to paragraph 10 of Defendants' Answer with New Matter as follows: "[a]dmitted." (See Plaintiff's Reply to New Matter Attached hereto as Ex. "C") H. Plaintiff's admission to this matter having resolved via an agreed upon settlement renders the present litigation moot. 12. Based on the foregoing, Defendants are entitled to Judgment in their favor. WHEREFORE, Defendants, Keystone Freight Corporation and Michael Dodds, request this Honorable Court deny Plaintiff's Motion for Judgment on the Pleadings and grant Defendants' Cross Motion for Judgment on the Pleadings. ZARWIN ? BAUM ? DEVITO KAPLAN ? SCHAER ? TODDY* P.C. BY: J 4E . TODDY, ES ZARWIN BAUM * DEVITO KAPLAN SCHAER ? TODDY * P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 1818 Market Street, 13'" Floor Philadelphia, PA 19103 (215) 569-2800 ?.. {? i'Id ••aI f F- 5-'l COUN BARBARA DICKINSON COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. No.: 08-4477 KEYSTONE FREIGHT CORPORTION and MICHAEL JURY TRIAL DEMAND DODDS Defendant, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 1. On or about August 22, 2008, Plaintiff commenced the immediate matter by filing a Civil Action Complaint. (See Plaintiffs Compliant attached hereto as Exhibit "A"). 2. The immediate matter involves a property damage claim. Plaintiff is seeking $16,458.90 for property damage, minus $7,244.70 previously paid by Defendants, plus $1,874.67 in rental expenses. (See Ex. "A"). 3. On December 29, 2007, Defendant Michael Dodds (hereinafter "Defendant Dodds"), driver of Defendant Keystone Freight Corporation's (hereinafter "Defendant Keystone") tractor trailer, was involved in a motor vehicle accident with a vehicle, which was insured by Geico, in which Plaintiff was a passenger. More specifically, while both vehicles were traveling northbound on Harrisburg Pike (Rt. 11), Plaintiff s vehicle slowed to make a right turn into a motel parking lot, at which time the front right bumper of Defendant's vehicle struck the rear bumper of Plaintiff's vehicle. Plaintiff caused the accident by slowing suddenly and not using a right turn signal prior to making the right turn into the motel parking lot. Plaintiff contends that a turn signal was used and that they did not come to an abrupt. (See Police Report attached hereto as Ex. "B"). Be that as it may, the cause of the accident is immaterial to the Court's determination of the immediate Summary Judgment Motion. 4. Following the incident, Geico representative Gloria Springer-Beveridge and Elizabeth Sheeran with Risk Enterprise Management (hereinafter "REM"), Defendant Keystone's third party administrator, discussed Geico's subrogation claim. During the course of their conversations, REM representative Sheeran informed Geico Examiner Springer-Beveridge that it was Defendants position that Defendants were only partially responsible for the accident. (See Deposition of Elizabeth Sheeran, p. 10 attached hereto as Ex. "C"). 5. On or about February 18, 2008, Geico forwarded a Payment Recovery Notice to REM representative Sheeran. Therein, Geico claimed entitlement to $7,244.70 representing the cost of repairs made to Plaintiffs vehicle, Plaintiff s deductible and towing costs. (See 2/18/08 Payment Recovery Notice affixed hereto as Ex. "B"). Also therein, Plaintiff requested that payment be sent to "Attn: Cashiers, P.O. Box 96008, Washington, DC 200906008. (See Ex. "D"). 6. Thereafter, REM representative Sheeran contacted Geico Examiner Springer- Beveridge to discuss the subrogation claim further. (See Ex. "C", pp. 10-12). 7. On or about March 6, 2008, REM representative Sheeran forwarded a check to Geico dated March 6, 2008 in the amount of $7,244.70. (See Copy of 3/6/08 check attached hereto as Ex. "E"). The front of the check stated, inter alia, "In payment of..... Settlement for PD to VIN #1GNT136." (See Ex. "E"). Ms. Springer-Beveridge understood this to mean settlement of property damage claim for Plaintiff's vehicle. (See Deposition of Gloria Springer-Beveridge attached hereto as Ex. "F", p. 27). Pursuant to the Payment Recovery Notice, the check was forwarded to "Attn: Cashiers, P.O. Box 96008, Washington, DC 200906008. (See Ex. "D"). 8. Thereafter, the check was cashed and posted to the account on March 10, 2008. (See Ex. "D" and Ex. "F" p. 26) 9. Despite the clear language on the settlement check, on or about May 21, 2008, Geico forwarded a second Payment Recovery Notice. (See 5/21/08 Payment Recovery Notice attached hereto as Ex "G"). Therein, Geico represented that it had paid an additional $10,714.20 in damages, brining the total damage claim to $17,958.90. (See Ex. "G"). While this was not forwarded to REM until May 21, 2008, Geico was aware that a supplemental estimate was being performed and that additional damages would be incurred as early as February 15, 2008. (See Ex. "F", p. 22). 10. Plaintiff's immediate claim must fail pursuant to the doctrine of accord and satisfaction and 13 Pa.C.S.A. §3311. 11. An accord and satisfaction requires a disputed debt, a clear and unequivocal offer of payment in full satisfaction, and acceptance and retention of the payment. King Boettcher, 616 A.2d 57 (Pa. Cmwlth. 1992); Law v. Mackie, 373 Pa. 212, 9d A.2d 656 (1953). Generally, the debtor's offer of a full payment check and the creditor's negotiation of that check constitute the offer and acceptance of an accord and satisfaction with the consideration being the resolution of a disputed claim. Paramount Aviation Corp, v. Agusta, 178 F.3d 132, 147 (3d Cir. 1999). 12. Furthermore, 13 Pa.C.S.A. §3311 governs accord and satisfaction by use of instrument, i.e. check. Specifically, 13 Pa.C.S.A. §3311 provides, in relevant part, as follows: (a) Requirements- If a person against whom a claim is asserted proves that: (1) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim; (2) the amount of the claim was unliquidated or subject to a bona fide dispute; and (3) the claimant obtained payment of the instrument; the following subsections apply. (b) Proof of conspicuous statement- Unless subsection (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. (c) Designated person, office or place and 90-day limitations- Subject to subsection (d), a claim is not discharged under subsection (b) if either of the following applies: (1) The claimant, if an organization, proves that: (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office or place; and (ii) the instrument or accompanying communication was not received by that designated person, office or place. (2) The Claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with paragraph (1)(i). (d) Discharge- A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim. 13 Pa.C.S.A. §3311. 13. In the immediate matter, Plaintiff's claim is barred based pursuant to 13 Pa.C.S.A. §3311 and the doctrine of accord and satisfaction. More specifically, Defendant has satisfied the elements of 13 Pa.C.S.A. §3311 and, thereby, has established an accord and satisfaction of the claim. Consequently, Plaintiff's claim must fail. 14. With regard to the requirements of §3311(a), there is no question that Defendant tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was subject to a bona fide dispute and that Plaintiff, through her representative, Geico„ obtained payment of the instrument. REM representative Elizabeth Sheeran testified that she had reached an agreement with a Geico representative to split the costs of the property damage claim. While Geico contends that there never was such an agreement, this is, in the context of an analysis under 13 Pa.C.S.A. §33311, immaterial. To the contrary, the fact that there was, and still is, a disagreement as to the amount of the claim is of consequence. Clearly, Plaintiff and Defendant, through their respective representatives, disputed the amount of the claim and, therefore, §3311(a)(2) has been satisfied. 15. Furthermore, there is no evidence to suggest that the check was tendered in bad faith. To the contrary, Ms. Sheeran believed that the parties had reached an agreement to resolve the claim whereby each would pay 50% of the property damage claim. While Geico disputes that such an agreement was ever made, there is no evidence to suggest that the check was tendered in bad faith. Moreover, Geico is a sophisticated entity whose personnel undoubtedly understand the significance of the use of instruments of payment such as a final payment check. Consequently, as the check was tendered in good faith, Defendant has satisfied §331 l(a)(1) has been satisfied. 16. Additionally, there is no dispute that Plaintiff obtained payment of the instrument. (See Ex. "D" and "E" p. 26). Consequently, the §3311(a)(3) has been satisfied. 17. With regard to §3311(b), the check plainly states that it was being offered as "settlement for PD" claim. This statement is contained in plain view on the front of the check. Defendant did not attempt to conceal this statement in any way. Moreover, Ms. Springer-Beveridge testified that she understood this statement to mean settlement of the property damage claim. Furthermore, and again, Geico is a sophisticated entity. An entity which is undoubtedly familiar with the use of instruments similar to that used in this case. In fact, Geico has an entire department that deals specifically with processing these types of payments. (See Ex. "E", p. 26). Based on the foregoing, it is clear that § 3 311(b) has been sati sfied. 18. Furthermore, neither limitation contained in §3311(c) is applicable to this matter. With regard to the office or place limitation contained in §3311(c)(1), Defendant forwarded the March 6, 2008 check to the address where Plaintiff requested that the check be sent in the February 18, 2008 Payment Recovery Notice. (See Ex."B" and "D"). There is no evidence to suggest that Plaintiff ever requested that Defendant send the check to any address other than that which was contained in the February 18, 2008 Payment Recovery Notice. Therefore, §3311(c)(1) does not apply. 19. Finally, the 90 day rule contained in §3311(c)(2) does not apply to this case. There is no evidence to suggest that Plaintiff ever offered to repay the money within 90 days. 20. In sum, Defendant's tendering of the $7,244.70 check wherein it was conspicuously noted that same was intended to be full settlement of the property damage claim and Plaintiff s, through its authorized agent, Geico, subsequent cashing and retention of same constitute an accord and satisfaction. Therefore, Plaintiff s claim must fail. WHEREFORE, Defendants, Keystone Freight Corporation and Michael Dodds, request that this Honorable Court Grant the Motion for Summary Judgment and Dismiss Plaintiffs Complaint with Prejudice. ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY* P.C. BY. J EPH .TODDY, ES BARBARA DICKINSON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. KEYSTONE FREIGHT CORPORATION and MICHAEL DODDS, Defendant NO. 2008-4477 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Monday, October 4, 2010, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff was William A. Addams, Esquire, and present for the Defendant was Brendan G. Lamanna, Esquire. The Defendant has indicated that it desires a jury trial. The parties further agree that because of several outstanding dispositive motions this matter is not at issue. By the Court, Edward E. Guido, J. X lliam A. Addams, Esquire For the Plaintiff endan G. Lamanna, Esquire or the Defendant Court Administrator 4 srs r 0"% t.? CIO CD ri CD C) M William A. Addams, Esquire 43 West South Street Carlisle, PA 17013 717-243-7638 Attorney for Plaintiff Atty. ID #20-1727973 BARBARA DICKINSON V. KEYSTONE FREIGHT CORPORATION and MICHAEL DODDS =L? 0-C?? t= SCE 2019 C T -7 A 11 9: 3111 PLt,4r?a ;fL1E?.''+.FH!pIN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW No. 08-4477 JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION FOR SUMMARY TUDGMENT 1. Admitted. 2. Admitted. 3. Denied as stated. The fault and liability for the accident rests with the Defendants. 4. Denied. The Geico representative, Gloria Springer-Bevereidge, had no conversation with Ms. Sheeran until April 21, 2008 when Ms. Sheeran told her that they usually do not pay rental. 5. Admitted. 6. Denied. The answer to Paragraph 4 is incorporated herein by reference. 7. The receipt of the check dated March 6, 2008 is admitted, which indicated the Defendants were paying 100% of the payment request and accepting full responsibility. 8. Admitted. 9. Denied as stated. Except that the second Payment Request Notice dated May 21, 2008 was sent. 10. The conclusion of law is denied. 11-12. Plaintiff admits the Defendants' quotations from various legal sources are accurate, but not necessarily applicable. 13. The conclusion of law is denied. 14. Denied. (1) The check was not in full satisfaction of the claim, but rather in full payment of the payment request. (2) The amount of "the claim," or payment request was not "unliquidated." There was no disagreement as to the amount, and there was no dispute as to liability as evidence by the payment of 100% of the request. 15. There is no suggestion of bad faith at the time the check was issued, but Ms. Sheeran's "belief" there was an agreement to settle for 50%x; is incredible. 16. The conclusion of law is denied. 17. The assumptions and conclusions of law are denied. 18-19. Admitted. 20. The conclusion of law is denied, numerous issues of fact remain to be determined. WHEREFORE Defendants request your honorable deny Defendants' Motion for Summary Judgment. William A. Ad lams Attorney for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that on this the 7"' day of October, 2010, a true and correct copy of the Plaintiff's Answer to Defendant's Motion for Summary Judgment was served via first class mail upon the following counsel: Brendan G. Lamanna, Esq. Zarwin, Baum, Devito 1515 Market Street 12`h Floor ? Philadelphia, PA 19102-1981 William . Addams Attorney for Plaintiff 43 W. South St., P.O. Box 261 Carlisle, PA 17013 717-243-7638 BARBARA DICKINSON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEYSTONE FREIGHT CORPORATION AND MICHAEL DODDS, DEFENDANTS 1~ 08-44"88.CIVIL TERM IN RE: MOTIONS FOR JUDGMENT ON THE PLEADINGS BEFORE GUIDO. J. AND MASLAND. J. ORDER OF COURT AND NOW, this ;r~'~~ day of October, 2010, the motion for judgment on the pleadings filed by plaintiff Barbara Dickinson IS DENIED. The cross-motion for judgment on the pleadings filed by defendants Keystone Freight Corporation and Michael Dodds IS DENIED. The defendants are granted thirty (30) days leave to amend their answer with new matter. By the Court, Williams A. Addams, Esquire For Plaintiff rendan G. Lamanna, Esquire 1515 Market Street 12th Floor Philadelphia, PA 19102-1981 For Defendants :saa yes rr~~l4d.- ID l5~1l~ Albe H. asland, J. c~ c -~,~ r~~' ~~ x" ~~ ~y r-s ~~ v c-~ z c~ ~~ ---t -< 0 cn -~ .-.~ rn ~r off'' --o ~~ o~ ~~ grn --{ D -c PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and. submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated !n full) mr~~ ;~ ~, crs ~ " -,C ~ ' r ~'. ~~ 0 ~~ No. 013-4 ~ ~ y Tenn ~ 'Qn ~ ---r N =~:~ ~ ~ a1 , --~ ~~ f ~~ c-~ o ~ ~~ cn 3~ --a .:,,7 BARBARA DICKINSON KEYSTONE FREIGHTs~CORPORATION and MICHAEL DODDS 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment 2. Identify ail counsel who will argue cases: (a) for plaintiffs: William A. Addams, Esquire 43 W Snut;_}1 Stxraet P-n- Rc~x 261 ~ ('_ar7 i Gl e~ PA 1 7~1 3 (Name and Address) (b) for defendants: Joseph M. Toddy, Esquire 1818 Market Streets 13th Flc~c~r~, Philadelphia. PA 19103 (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: Date: _ f~~ V ~~~~~a~ La.~~.,,-~. Print your name ~~P.r~cla.f ~S' Attorney for 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 shaft fife 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 resisted. f 11-H-OFFICE iin '107 12 PH !: ?? f Y y? ' 4 § ZARWIN BAUM * DEVITO KAPLAN SCHAER ? TODDY * P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 Suite 1200 1515 Market Street Philadelphia, PA 19102 (215) 569-2800 TO THE HEREIN: Plaintiff You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days of service thereof or default judgment may b entered gainst BY:pp--.-. , 'f J OSEPH M. TODDY, ESQU E BARBARA DICKINSON COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY VS. No.: 08-4477 KEYSTONE FREIGHT CORPORTION and MICHAEL JURY TRIAL DEMAND DODDS Defendant, DEFENDANTS'AMENDED ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendants, Keystone Freight Corp. and Michael Dodds, by its attorneys, Zarwin, Baum, DeVito, Kaplan, Schaer, Toddy, P.C., hereby answers Plaintiffs' Complaint as follows: 1. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. 2. Denied. To the contrary, Defendant, Keystone Freight Corp. (hereinafter "Keystone Freight"), is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania and maintains a principal place of business at 2820 16th Street, North Bergen, New Jersey. 3. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. 4. Denied. Defendants generally deny the factual allegations of this paragraph in accordance with Pennsylvania Rule of Civil Procedure 1029(e). To the extent that the allegations of this paragraph constitute legal conclusions, no responses are hereto required. 5. Denied. This averment is denied as a conclusion of law to which no response is required. 6. Denied. This averment is denied as a conclusion of law to which no response is required. 7. Denied. Defendants generally deny the factual allegations of this paragraph in accordance with Pennsylvania Rule of Civil Procedure 1029(e). To the extent that the allegations of this paragraph constitute legal conclusions, no responses are hereto required. Further, this averment is denied as a conclusion of law to which no response is required. 8. Denied. Defendants generally deny the factual allegations of this paragraph in accordance with Pennsylvania Rule of Civil Procedure 1029(e). To the extent that the allegations of this paragraph constitute legal conclusions, no responses are hereto required. Further, this averment is denied as a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER 9. Plaintiff's alleged cause of action is barred by the applicable Statute of Limitations for any acts or omissions occurring more than two years prior to the filing of the Complaint. 10. Plaintiff s claims are barred by the doctrine of accord and satisfaction. 11. Defendants', through their representative, Risk Enterprise Management, forwarded a check to Plaintiff s representative, Geico, wherein it was indicated that same constituted full and final settlement of Plaintiff s claims. Plaintiff s representative, Geico, cashed the check. At no time has Plaintiff offered to repay the money. 12. Defendants aver that Plaintiff is not entitled to any additional damages above the $7,244.70 which Defendant has previously tendered. 13. The alleged damages to Plaintiff or cause or contributed to in whole or in part, by the negligence or want of due care of persons, parties and/or organizations other than Answering Defendants and over whom said Answering Defendants had no control or right of control or responsibility. 14. The Complaint, in whole or in part, fails to state a cause of action upon which relief can be granted. 15. Defendant asserts all of the defenses available under the Motor Vehicle Financial Responsibility Law, 75 P.A.C.S. §1701, et. seq., and avers that Plaintiff's remedies are limited exclusively thereto, and therefore, the present action is barred or limited. 16. Plaintiff s claims, if any, are barred, in whole or in part due to their failure to mitigate damages. WHEREFORE, Defendants demand that Plaintiff s Complaint be dismissed with prejudice and that judgment be entered in favor of Answering Defendants. ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY* P.C. BY: J SEP . TODDY, E . VERIFICATION Joseph M.Toddy, Esquire hereby states that he is the Attorney of the Defendant in this action and verifies that the statements made in the foregoing Amended Answer with New Matter to the Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 PAC.S Section 4904 relating to unsworn falsification to authorities. oseph . Toddy, Esqui DATE: // f Z BARBARA DICKINSON, PLAINTIFF V. KEYSTONE FREIGHT CORPORATION AND MICHAEL DODDS, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-4477 CIVIL TERM AMENDED ORDER OF COURT `61 AND NOW, this (,C day of November, 2010, the order of court dated October 14, 2010 is amended to indicate that only the motion for judgment on the pleadings filed by plaintiff Barbara Dickinson IS DENIED. The cross-motion for judgment on the pleadings filed by defendants Keystone Freight Corporation and Michael Dodds shall be argued at the December, 2010 argument court. The Prothonotary is directed to list the case for argument on December 15, 2010. By the Court, Albert H. Masland, J. Williams A. Addams, Esquire For Plaintiff rendan G. Lamanna, Esquire 1515 Market Street 12th Floor Philadelphia, PA 19102-1981 For Defendants Court Administrator ' :saa 1es M2c1c? 11 17/10 c o x7 nc ?.? ;cc-) DM D CO 7,0 -C 1--- "Y Sr, I! t,_twd-?..? i z?l iz? In.. ?s 4I' ESC I_ ss, tl E n r- , Y t !at ri + t William A. Addams, Esquire 43 West South Street Carlisle, PA 17013 717-243-7638 Attorney for Plaintiff Atty. ID #20-1727973 BARBARA DICKINSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA V. CIVIL ACTION - LAW KEYSTONE FREIGHT No. 08-4477 CORPORATION and MICHAEL : DODDS JURY TRIAL DEMANDED REPLY TO DEFENDANTS' AMENDED ANSWER 9-10. The conclusions are denied. 11. Denied. The check did not contain a conspicuous statement that it was tendered in full satisfaction. The check was not in full satisfaction of the full claim, but rather payment of a payment request. The amount of the claim or payment request was not unliquidated. There was no disagreement as to the amount, and there was no dispute as to liability as evidenced by the payment of 100 percent of the request. 12-16. The conclusions of law are denied. WHEREFORE the Plaintiff requests the New Matter be dismissed. ?n William A. ams Attorney for Plaintiff VERIFICATION William A. Addams hereby verifies that he is the attorney for the Plaintiff, which is outside the jurisdiction of the court, that he is authorized to and does make this verification on its behalf, and that the facts set forth in the foregoing Reply are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities Date: November 17, 2010 - ZAe William A. Ad ms CERTIFICATE OF SERVICE The undersigned hereby certifies that on this the 17"" day of November, 2010, a true and correct copy of the Reply to Defendants' Amended Answer was served via first class mail upon the following counsel: Brendan G. Lamanna, Esq. Zarwin, Baum, Devito 1515 Market Street 12`h Floor Philadelphia, PA 19102-1981 William A. Addams Attorney for Plaintiff 43 W. South St., P.O. Box 261 Carlisle, PA 17013 717-243-7638 C?la? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for to neR Argument Court.) -_--_--_------_____--------------- --------------- ----------- --_----------------- ------^"' f r 1 CJ ` CAPTION OF CASE cy) r- r\3 M (entire caption must be stated in full) - r-j BARBARA DICKINSON w. C vs. n7 31- KEYSTONE FREIGHT CORPORATION CO and MICHAEL DODDS No 08-4477 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Motion for Judgment on the Plea dinas 2. Identify all counsel who will argue cases: (a) for plaintiffs: William A. Addams, Esquire 43 W. South Street, P.O_ Box 261, Carlisle, PA 17013 (Name and Address) Joseph M. Toddy, Esquire 1818 Market Street, 13th Floor, Philadelphia, PA 19103 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 ature ?TTo-t e,04 1 T alg?? Print your name Defendants Date: Attorney for 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 rellsted. Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF Barbara Dickinson CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW Keystone Freight Corp : No. 2008-4477 CIVIL TERM n rr j Michael Dodds c - m ° 0 u rn t7 M ORDER OF COURT ? o IN RE: ARGUMENT COURT vM p. zC:) vz AND NOW, this 9th day of December, 2010, the case listed above has been --' O x'*'t Mr_ -urn co '° 2° C)--n C D stricken from the 12/15/2010 Argument Court List due to the listing party's failure to file a brief in accordance with Cumberland County Local Rule 1028 (c) (5). By the Court, 1?. Kevi . Hess, P.J. #46. BARBARA DICKINSON, Plaintiff V. KEYSTONE FREIGHT CORPORATION AND MICHAEL DODDS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008 - 4477 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 20TH day of DECEMBER, 2010, it appearing that there are material issues of fact in dispute, the Defendant's Motion for Summary Judgment is DENIED. William A. Addams, Esquire Joseph M. Toddy, Esquire Court Administrator Laccl-i rU -P i.tf-, sld Corf I-e-T 4 B" ourt, Edward E. Guido, J. rn CC) rn z? x ^s sV rv . -i ?/,f/7L PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) 2011 MAY 13 AM It: I CUMBERLAND CC?UU ? '; RENNSYLYANIA TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Barbara Dickinson (check one) Q Civil Action - Law ? Appeal from arbitration (other) (Plaintiff) vs. Keystone Freight Corporation and Michael Dodds vs. The trial list will be called on June 21, 2011 and (Defendant) Indicate the attorney who will try case for the party who files this praecipe: William A. Addams Indicate trial counsel for other parties if known: Brendan G. Laminna This case is ready for trial. Date: May 13, 2011 Trials commence on July 18, 2011 Pretrials will be held on July 6, 2011 (Briefs are due 5 days before pr ttrials No. 08-4477 Signed: Print Name: William A. Addams Attorney for: Plaintiff Term * 'may &45? 3tlo A!ie WS1 ?K BARBARA DICKINSON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. C1 r-2 C= ,I KEYSTONE FREIGHT CORPORATION: G --? AND MICHAEL DODDS, ? r r- rn DEFENDANTS 08-4477 CIVIL TERM -o 5- PRETRIAL CONFERENCE o Z c- A pretrial conference was held on July 6, 2011. In attendance were Al i f% 1 e -1 counsel William A. Addams, Esquire, and Defendant's counsel Brendan G. Lamanna, Esquire. This case involves an automobile accident that occurred on December 29, 2007, when Defendant's tractor trailer collided with the rear of Plaintiff's vehicle as it was turning into the Howard Johnson Motel at 1235 Harrisburg Pike, Carlisle. Defense counsel has not seen or heard from Mr. Dodds in approximately two and one-half years. The ultimate issue is whether there was a settlement in this case. Although Defendant's pretrial memo thoroughly addresses the issue of accord and satisfaction, this matter boils down to a situation where less than $3,800 separates the parties in their settlement negotiations. Therefore, the court finds that further settlement conferences are necessary to aid in the disposition of this action. Pursuant to Pa.R.C.P. 212.5, the court directs counsel for both parties to appear in chambers for settlement conferences at 8:00 a.m., on July 11, 2011 and, barring resolution, at 8:00 a.m. on July 13, 2011. The parties shall be in compliance with the requirement of Rule 212.5(b), pursuant to which, the court compels the attendance of the parties as well as representatives possessing full settlement authority. If settlement is not reached, this case will require one day to try. The parties shall submit proposed points for charge prior to voir dire. By the Court, Albert H. Masland, J. William A. Addams, Esquire For Plaintiff Brendan G. Lamanna, Esquire 1818 Market Street, 13th Floor Philadelphia, PA 19103 For Defendants Court Administrator saa BARBARA DICKINSON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KEYSTONE FREIGHT CORPORATION: AND MICHAEL DODDS, DEFENDANTS 08-4477 CIVIL TERM SETTLEMENT CONFERENCE A settlement conference was held on July 13, 2011 at 8:15 a.m. In attendance were Plaintiffs counsel William A. Addams, Esquire, Defendants' counsel Brendan G. Lamanna, Esquire, and Chandra Ravina, Defendants' representative possessing full settlement authority. Although the parties have made some movement towards settlement, in a matter of this magnitude, even a $3,000 difference is a significant gulf, which further settlement conferences are unlikely to fill. With respect to substantive matters, Plaintiff has requested the adjuster's claim notes/log from Defendants. Defendants supplied a redacted version, which Plaintiff describes as "completely obliterated." Therefore, the court directs that Defendants supply the court with an unredacted version of the notes prior to trial so that the court may determine what redactions are appropriate. Similarly, Defendants have requested the second estimate of damages from Plaintiff, which shall be supplied before trial. By the Court, Albert H. Maslan , J.rM _., =M C fY1r. xo s ?,.C r Dm ?j 1 William A. Addams, Esquire For Plaintiff Y' Brendan G. Lamanna, Esquire 1818 Market Street, 13th Floor Philadelphia, PA 19103 For Defendants Court Administrator :saa ('r Pi r-5 7l/i1I/l ,?jL C ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY * P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 1.818 Market Street, 13`h Floor Philadelphia, PA 19103 (215) 569-2800 BARBARA DICKINSON Plaintiff, vs. KEYSTONE FREIGHT CORPORTION and MICHAEL DODDS Defendant, € D - OF1CE 11 AUG 24 AM I f : 25 U111 ISERLAND COUNTY PCINNSYLWANIA COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 08-4477 JURY TRIAL DEMAND PREACIPE TO MARK SETTLED, DISCONTINUED AND ENDED TO THE PROTHONOTARY: Kindly mark the above matter settled, discontinued and ended. WILLIAM A. ADDAMS ATTORNEY AT LAW BY: William A. rams, Esq.