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HomeMy WebLinkAbout08-5553Thomas E. Brenner, Esquire Attorney I.D. No. 32085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 717-234-6810 tebLdgolclbergkatzman. com Attorney for Plaintiffs DAVID BOLEY AND LORI BOLEY, : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiffs V. :NO. 09 5553 0,11 vt' I -Tzo-r rA THOMAS ROGERS, Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objections a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 Thomas E. Brenner, Esquire Attorney I.D. No. 32085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 717-234-6810 tebLc )goldbergkatzman. coat Attorney for Plaintiffs DAVID BOLEY AND LORI BOLEY, Plaintiffs V. THOMAS ROGERS, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA . NO. COMPLAINT COUNTI AND NOW, comes Plaintiffs David Boley and Lori Boley, by their attorneys Goldberg Katzman, P.C., who state the following: 1. Plaintiffs David Boley and Lori Boley are adult individuals, husband and wife, residing at 7 Jefferson Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Thomas Rogers is an adult individual who resides at 103 Second Street, Boiling Springs, Cumberland County, Pennsylvania. 3. This is a matter arising from a motor vehicle accident that occurred on February 7, 2008 at approximately 5:21 p.m. on Forge Road in South Middleton Township, Cumberland County, Pennsylvania. 4. On the date aforesaid, Plaintiff David Boley was operating a 2004 Chevrolet Malibu and proceeding on South Forge Road. 5. Defendant Thomas Rogers was operating a 1990 Mitsubishi Gallant and proceeding behind the Boley vehicle. 6. Defendant Rogers approached and struck the rear of the Boley vehicle causing property damage and personal injury to Mr. Boley. 7. The aforesaid accident was the result of the negligence, carelessness, and recklessness of Thomas Rogers as he: a. failed to pay attention to the presence of other vehicles on the roadway; b. followed the Boley vehicle too close; C. failed to keep control of his vehicle to as to prevent it from striking the rear of the Boley vehicle; d. was impaired in the operation of his motor vehicle; and e. violated the rules and regulations of the Commonwealth of Pennsylvania regarding the operation of motor vehicles. 8. As a result of the accident the 2004 Chevrolet Malibu was declared a total loss. 9. As a result of the accident David Boley sustained personal injuries including, but not limited to, a sprain/strain of his back necessitating a hospital emergency room visit and medical care. 10. As a result of the aforesaid accident and injuries, Plaintiff has incurred medical care and expenses and loss time from work. 2 11. As a direct result of the aforesaid accident and the negligence of the Defendant, David Boley has had to forego life's pleasures and has sustained significant pain, suffering, anguish and emotional distress. WHERFORE, Plaintiff David Boley demands judgment against Defendant Thomas Rogers in an amount not in excess of $35,000 together with interest and costs of suite. COUNT II Lori Bolev v. Thomas Rogers 12. Paragraphs 1 through 11 are incorporated herein by reference. 13. By reason of the aforesaid injuries sustained by her husband, Plaintiff David Boley, Plaintiff Lori Boley ahs and will be deprived in the future of his assistance, his companionship, consortium and society, all of which have been and will be of great damage and detriment and loss to her. WHERFORE, Plaintiff Lori Boley demands judgment against Defendant Thomas Rogers in an amount not excess of $35,000 together with interest and cost of suit. Date: September , 2008 161909.1 GOLDBERG KATZMAN, P.C. Thomas E. Brenner, Esquire PA Attorney ID #32085 Strawberry Square 320 Market Street, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs David and Lori Boley 3 VERIFICATION We, David and Lori Boley, hereby acknowledge that we have read the foregoing document and that the facts stated therein are true and correct to the best of our knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date: b<' DAVID BOLEY L BOLE . ? ¢ a R.? -fl O C ? ? `' `'?' ?? ? C ?? ?? D W ? ( f r ? ? W ?r" _ pp yy V I SHERIFF'S RETURN - REGULAR CASE NO: 2008-05553 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOLEY DAVID ET AL VS ROGERS THOMAS WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROGERS THOMAS the DEFENDANT , at 1817:00 HOURS, on the 26th day of September, 2008 at 113 SECOND STREET BOILING SPRINGS, PA 17007 by handing to RUTH BUCHER, SISTER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.00 Postage .59 Surcharge 10.00 Id ?bSrf 61' .00 v-34.59 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 10/01/2008 GOLDBERG KATZMAN By. Deputy Sheriff of A. D. Thomas E. Brenner, Esquire Attorney I.D. No. 32085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 717-234-6810 teb Laigoldbergkatzman. com Attorney for Plaintiffs DAVID BOLEY AND LORI BOLEY, PLEAS Plaintiffs V. : IN THE COURT OF COMMON : CUMBERLAND COUNTY, : PENNSYLVANIA NO. 08-5553 CIVIL TERM THOMAS ROGERS, Defendant PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO THE PROTHONOTARY: Please enter judgment by default against Defendant, Thomas Rogers, for failure to plead. I attach a copy of the 10 Day Notice of Default that was forwarded to Mr. Rogers on November 4, 2008. GOLDBERG KATZMAN, P.C. Date: November )-1 , 2008 By:,-, Thomas . Brenner, Esquire PA Attorney ID #32085 Strawberry Square 320 Market Street, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs David and Lori Boley 166706.1 Thomas E. Brenner, Esquire Attorney I.D. No. 32085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 717-234-6810 teb a oldbergkatzman.com Attorney for Plaintiffs DAVID BOLEY AND LORI BOLEY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-5553 CIVIL TERM THOMAS ROGERS, Defendant TO: Thomas Rogers 113 Second Street Boiling Springs, PA 17007 DATE OF NOTICE: November 4, 2008 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAISNT YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GOTO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 165681.1 GOLDBERG KATZMAN, P.C. By: CLI? - Thomas E. Brenner, Esquire PA Attorney ID #32085 Strawberry Square 320 Market Street, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs David and Lori Boley 165681.1 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid as follows: Thomas Rogers 113 Second Street Boiling Springs, PA 17007 GOLDBERG KATZMAN, P.C. Thomas E. Brenner, Esquire Date: November 4, 2008 165681.1 d., . .. CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid as follows: Thomas Rogers 113 Second Street Boiling Springs, PA 17007 GOLDBERG KATZMAN, P.C. By:Qc,,? Thomas E. Brenner, Esquire Date: November I , 2008 166706.1 Lo IN THE COURT OF COMMON PLEAS OF DAVID BOLEY AND LORI BALEY CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 08-5553 20 THOMAS ROGERS RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Thomas E. Brenner, Esquire , 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 $ less than $50,000 The counterclaim of the defendant in the action is $ 0 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: NONE WHEREFORE, your petitioner prays your Honor to a t three (3) arbitrators to whom the case shall be submitted. ly submitted, Thomas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 ORDER &b6&fg' PA 17108-1268 AND NOW, petition, Esq., and captioned action (or actions) as prayed for. 200 , in consideration of the foregoing Esq., and _ Esq., are appointed arbitrators in the above By the Court, EDGAR B. BAYLEY R' ? ? -rr c ? ? cry DAVID BOLEY AND LORI BOLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 08-5553 20 THOMAS ROGERS RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Thomas E. Brenner, Esquire , 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 $ less than $50, 000 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: NONE WHEREFORE, your petitioner prays your Honor to a t three (3) arbitrators to whom the case shall be submitted. ly submitted, Thomas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 ORDER&'F6g' PA 17108-1268 AND NOW, 200in consideration of the foregoing petition. Esq., and CkM444A &. AV4A-, Esq., and Esq., are appointed arbitrators in the a ove captioned action (or actions) as prayed for. By Court, G DGAR 63. BAYLEY r-- c:) cc; - C- ) D z? CL _ an. C?4 a t1 ? O z. m n ? O?"U ?;`' tJ1 '. tv tt "- ?vl BENNETT, BRICKLIN & SALTZBURG, LLP BY: MICHAEL DOLICH Attorney ID No. 66196 THOMAS F. KLOSINKSI Attorney ID No. 82427 1601 Market Street, Floor 16 Philadelphia, PA 19103 (215) 561-4300 David Boley and Lori Boley ATTORNEYS FOR DEFENDANT, Thomas Rogers COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs, VS. Thomas Rogers, Defendant. Docket No. 08-5553 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of defendant Thomas Rogers in the above captioned matter. BENNETT, BRICKLIN & SALTZBURG, LLP Dated: By: A??*c Michael Dolich Thomas F. Klosinski Attorneys for Defendant, Thomas Rogers .: ?> .E •2 4 N ;. ?, ... °..» C." .. S`am' 0 0IGINAL BENNETT, BRICKLIN & SALTZBURG, LLP BY: Michael Dolich, Esquire I.D. No. 66196 ATTORNEYS FOR DEFENDANT, Thomas Rogers BY: Thomas F. Klosinksi, Esquire I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 David Boley and Lori Boley vs. Thomas Rogers COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET NO. 08-5553 DEFENDANT, THOMAS ROGERS' PETITION TO OPEN JUDGMENT OF DEFAULT ENTERED ON NOVEMBER 21, 2008 PURSUANT TO RULE OF CIVIL PROCEDURE 237.3 Defendant, Thomas Rogers, by and through counsel, hereby files the within petition to open default judgment pursuant to Rule of Civil Procedure 237.3, and in so doing avers as follows: 1. On or about September 19, 2008, Plaintiffs commenced this civil action against defendant. (A copy of the cover sheet of the Complaint is, attached hereto as Exhibit "A".) 2. The Complaint refers to a motor vehicle accident which occurred on February 7, 2008. 3. On or about November 21, 2008, Plaintiffs caused Judgment by Default to be entered in favor of Plaintiffs against Defendant. 4. Defendant, Thomas Rogers states he was never served with the Complaint and thus had no ability to respond or serve it on his insurer. 5. On December 29, 2008, your petitioner's counsel received a file from the insurer for movant indicating that a Complaint was filed. 6. Counsel, on that date filed an entry of appearance, and learned that a judgment had been entered. 7. Immediately upon receipt of the file from petitioner's insurer, counsel contacted Plaintiffs' counsel and requested an agreement to open the recently entered default judgment so as to enter a defense for the claims. Said request was denied. 8. Moving party's counsel has taken appropriate and prompt action to attempt to have the default judgment opened. 9. A Petition to Open a Default Judgment "is an appeal to the equitable and discretionary powers of the court." Reed Shaw Stenhouse of Pennsylvania v. J.A. Neiser Co, 393 A.2d 1219,1220 (Pa. Super. 1978). Thus, it is within this court's discretion as to whether to open a default judgment. 10. Three requirements should be present for a court to open a default judgment: the applicant must seek relief promptly, must provide a reasonable excuse for the default and must present a meritorious defense to the original action. Id. 11. Petitioner's counsel, upon receiving assignment from the insurer, attempted to open the default by way of a stipulation with Plaintiffs' counsel but was unable to do so; then promptly filed this Petition to Open the Default. 12. Once Petitioner's insurer was made aware of this civil litigation, it took steps to protect its insured's interests by forwarding the file to counsel. 13. The default notice default notice was not immediately sent to the insurer, because, as stated by your petitioner, he did not receive service. 14. Your Petitioner will defend the allegations made against him in Plaintiffs' Complaint. 15. Moving Defendant, in satisfying the three (3) requirements for opening a default judgment, should be allowed to enter a defense in this matter, and your Petitioner respectfully requests 2 that this Honorable Court open the said default and allow him to answer the Complaint in this matter. 16. In further support of his Petition to Open Default Judgment, moving Defendant submits that no prejudice has been caused to any party as a result of his failure to file his Answer within the time period prescribed by the Rules of Civil Procedure. 17. The accident only occurred in February 2008. Discovery in this particular civil action has not occurred. Although a hearing on damages after default has been scheduled by the Court for February 24, 2009, that may be easily postponed and combined with the full hearing on the merits of this case. 18. For the foregoing reasons, your petitioner submits that he is fully within this Court's discretionary powers to open judgment in this matter and permit your Petitioner to present a full and meaningful defense to the allegations lodged against them. WHEREFORE, Defendant, Thomas Rogers, respectfully requests this Honorable Court to open said default and allow him to answer the Complaint in this matter. BENNETT, BRICE LIN AND SALTZBURG BY: CHAEL DOLICH, ESQUIRE THOMAS F. KLOSINSKI Attorneys for Defendant, Thomas Rogers Dated: January 5, 2009 3 12/0/2008 15:30 FAX 7172346810 GOLDBERG KATZMAN It 005/008 Thomas E. Brenner, Esquire Attorney 1,D. No. 3.2085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-2268 717-234-4261 717-234-6814 teb6-i'w-u1dJ_ er e&-r4arr.cpm Attorney for Plaintiffs DAVID ROLlt Y AND LORI BOLEY, Plaintim V. THOMAS R.OGER.S, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ti COMPLAA CQVNT AND NOW, comes Plaintiffs David Boley and Lori Braley, by their attorneys Goldberg Katzmw, P.C_, who state the following: 1. Plaintiffs David Boley and Lori l3oley are adult individuals, husband and wife, residing at 7 Jefferson Drive, Carlisle, Cumberland County, Pennsylvania, 2. Defendant Thomas Rogers is an adult individual who resides at 103 Second StrW, Boiling Springs, Cumberland County, Pennsylvania- 3. This is a matter arising from a motor vehicle accident that occurred on I ebnwy 7, 2005 at approxi= tely 5:21 p'm. on Forge Road in South, Middleton Township, Cumberland Cotwty, Pennsylvania. 12/03/2008 15'30 FAX 7172346814 GQLUBERG KATZMAN 14008/008 4. On the date aforesaid, Plaimtitr David Holey was operating a 2004 Chevrolet Malibu and proceeding on South Forge Road. S. Defendant Thomas Rogers was operating a 1990 lvlitsubishi Gallant and proceeding behind the Boley vehicle. 6. Defendant Rogers approached and struck the rear of the Boley vehicle: causing property damage and personal "injury to Mr. Boley. 7. The aforesaid accident was the result of the negligence, carelessness, and recklessness of Thomas Rogers as he: a. failed to pay attention to the presence of other vehicles on the roadway; b. followed the Boley vehicle too close; C. failed to keep control of his vehicle to as to prevent it from striking the rear of the Boley vehicle; d. was impaired in the operation of his motor vehicle; and c. violated the rules and regulations of the Commonwealth of Pennsylvania regarding the operation of motor vehicles. 8. As a result of the accident the 2004 Chevmlet Malibu was declared a total lass. 9. As a result of the accident David Boley sustained personal injuries including, but not limited to, a spraintstra n of his back one sitating a hospital emergency room visit and medical care. 14. As a result of the aforesaid accident and injuries, Plaintiff has incurred medical care and cKpetues and loss time froth work. 2 12/03/2008 15; 30 FAX -1172346810 GOLDBERG KATZMAN It 007/008 11. As a direct zesWt of the aforesaid accident and the negligence of the Defendant, David Boley has had to forego life's pleasures and has sustained: significant pain, suffering, anguish and emotional distress. WHERFt7R.E, Plaintiff David Boley demands judgment against Defendant nomai Rogers in an amount not in excess of S35,000 together with interest and costs of suite. couNr n Loririer? v. T4vm= Resets 11 Paragraphs I through I 1 are incorporated herein by reference. 13. By reason of the aforesaid injuries sustained by her husband, Plaintiff' David Boley, Plaintiff Lori Boley ahs and will be deprived in the future of his assistance, his companionship, consortium and society, all of which have been and will be of great damage and detriment and loss to her. WHERFOR;E, Plaintiff Lori Boley demands judgment against Defendant 7bomas Rogers in an amount not excess of $35,000 together with interest and cost of suit. Date: September 2008 ss1sas.r GOLDBLKG KAT2 MAN, P.C. I "as Branna. Esquire PA, Attorney ID #32085 Strawberry Square 320 Market Street, P.0. Box 1268 Harrisburg, PA 17108-1268 (717) 234-416:1 .Attorneys for Plaintiffs David and Lori Boley 3 12/0'/2008 15:50 FAX 7172348810 GOLDBERG KATZMAN f?}008?008 W,RYFI+CATION We, David and Lori Boley, hereby acknowledge that we have read she foregoing document and that the facts stated therein are true and correct to the best of our knowledge, information and belief. I understand that any false stawxmts herein are made subject to penalties of 18 Pa. C_S. Section 4904, relating to unswern fi"fication to authorities, Date: 8 'z '-9VX ?--? '? .s 7 c:? .wi i BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 DAVID and LORI BOLEY vs. THOMAS ROGERS Attorney for Defendant, Thomas Rogers COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET NO. 08-5553 DEFENDANT'S MOTION FOR CONTINUANCE OF ASSESSMENT OF DAMAGES HEARING SCHEDULED FOR FEBRUARY 24, 2009 Defendant, Thomas Rogers, by and through his counsel, hereby files the within Motion for Continuance of Assessment of Damages hearing scheduled for February 24, 2009, and in so doing sets forth as follows: Plaintiffs filed the above captioned civil action on September 17, 2008, stemming from a motor vehicle accident which occurred on February 7, 2008. 2. Plaintiffs caused Judgment to be entered by default on November 21, 2008. 3. Defendant contends that he was not served with either the Complaint or the default notice and has filed a Petition to Open Default, which is pending before this Honorable Court. 4. Defendant's insurer assigned this case to counsel for defendant on December 29, 2008, at which time counsel immediately entered his appearance and requested counsel for plaintiffs to agree to open the default. 5. Defendant contests plaintiffs' alleged damages and requires sufficient time to undertake discovery so as to be prepared for trial. 6. Allowing discovery to occur would allow defendant and his insurer, and counsel, to investigate and evaluate the claims. 7. Reasonable discovery would allow for the possible resolution of the claims. No prejudice would inure to any party should this Honorable Court allow discovery to proceed. Default. 9. Granting a continuance would serve to allow the Court to decide the Petition to Open 10. Granting a continuance would be reasonable and a proper exercise of the equitable power of this Court. 11. Defendant will be severely prejudiced should this continuance not be granted. WHEREFORE, Defendant respectfully requests this Honorable Court grant a Continuance of the Assessment of Damages hearing scheduled for February 24, 2009. BENNETT, BRICKLIN & SALTZBURG LLP w BY: THOMAS KLOSINSKI, ESQUIRE Counsel for Defendant Dated: January 5, 2009 2 A I . BENNETT, BR.ICKLIN & S BY: Thomas Klosinski, EsquireTZBURG LLP I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, pA 17602 (717) 393-4400 DAVID and LORI BOLEY vs. THOMAS ROGERS Attorney for Defendant, Thomas Rogers COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET NO. 08-5553 CERTIFICATE OF SERVICE I, Thomas F. Klosinski, Esquire, hereby certify that an original Motion for Continuance has been served this date u on the States First Class Mail, postage prepaid, addressed p fol owing coons copy way fends United ed as follows: g counsel by way of United Thomas E. Brenner, Esquire Goldberg Katzman, P.C. P-0. Box 1268 Harrisburg, pA 17108 (Counsel for Plaintiffs) Dated: January 5, 2009 1 4M THOMAS F. KLOSINSKI, ESQUIRE ?? c° ?{<?? ? a ?;: ?.?. --? ? , ? . . _, w c?' ';.,>. 4 n w ?. u.. ..?.. ORIGINAL To the within named parties, you are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a j r may a entere against you. THPIMAS F. KLOSINSKI, ESQUIRE BENNETT, BRICKLIN & SALTZBURG, LLP ATTORNEYS FOR DEFENDANT, BY: MICHAEL DOLICH Thomas Rogers Attorney ID No. 66196 THOMAS F. KLOSINKSI Attorney ID No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 David Boley and Lori Boley COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs, Docket No. 08-5553 VS. Thomas Rogers, Defendant. DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER Defendant, Thomas Rogers, by and through counsel, hereby files Answer and New Matter to Plaintiffs' Complaint, and in so doing sets forth as follows: 1.-5. Admitted. 6. Denied. Defendant denies property damage and personal injuries. 7. Denied. Defendant denies negligence, carelessness and recklessness. Defendant specifically denies he: a. failed to pay attention; b. followed to close (sic); c. failed to keep control; d. was impaired; e. violated rules and regulations. 8. Admitted. 9. Denied. Defendant denies plaintiff suffered personal injuries and required hospitalization and medical treatment. 10. Denied. Defendant denies plaintiff suffered medical expenses and lost time from work. 11. Denied. Defendant denies plaintiff suffered the alleged damages as a result of acts or failures to act on the part of defendant. WHEREFORE, Defendant demands judgment in his favor. 12. No response is required. 13. Denied. Defendant denies plaintiff suffered the alleged damages as a result of any acts or failures to act on the part of defendant. WHEREFORE, Defendant demands judgment in his favor. NEW MATTER 14. Plaintiffs' claimed injuries and damages were pre existing. 15. Plaintiffs, possessors of Limited Tort insurance are precluded from making claims for non economic damages. 16. Defendant invokes the Pennsylvania Motor Vehicle Financial Responsibility Act and any defenses which arise thereunder. 17. Plaintiff's claimed medical treatment was unreasonable and unnecessary. 2 I WHEREFORE, Defendant requests that New Matter be Granted and that plaintiffs' BENNETT, BRICKLIN & SALTZBURG LLP By. Michael Dolich, Esquire Thomas F. Klosinski, Esquire Attorneys for Defendant, Dated: January 5, 2009 Thomas Rogers VERIFICATION I, Thomas F. Klosinski, Esquire, do hereby verify that I am an authorized representative of the within named defendant, Thomas Rogers, in the above-captioned action and that the facts set forth in the foregoing Answer to Complaint and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. A J j___ THOMAS F. KLOSINSKI DATE: January S, 2009 BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 DAVID and LORI BOLEY vs. THOMAS ROGERS Attorney for Defendant, Thomas Rogers COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET NO. 08-5553 CERTIFICATE OF SERVICE I, Thomas F. Klosinski, Esquire, hereby certify that an original and one Answer to Complaint and New Matter has been served this date upon the following counsel by way of United States First Class Mail, postage COpY of Defendant's Prepaid, addressed as follows: Thomas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 Harrisburg, PA 17108 (Counsel for Plaintiffs) Dated: January 5, 2009 THOMAS F. KLOSINSKI, ESQUIRE R.5 C_? t'.;;3 ; ? ti+.:? ?...... ?? .. `.j ?.; ,. ?. P, n ??:.? ?v? ., DAVID AND LORI BOLEY IN THE COURT OF COMMON PLEAS OF PLAINTIFFS CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS ROGERS, DEFENDANT 08-5553 CIVIL TERM ORDER OF COURT AND NOW, this q? day of January, 2009, defendant having filed a motion to open the default judgment, his motion for a continuance of assessment of damages hearing, IS GRANTED. The appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. John E. Slike, Esquire, Chairman, shall be paid the sum of $50.00. Thomas E. Brenner, Esquire For Plaintiffs Thomas Klosinski, Esquire For Defendant n E. Slike, Esquire Court Administrator - :sal t? 1'e s e'>-` t LCCL aL'a C-fx-L 8a_?tL tdgar t3. Bayley, J. a Co t om` Q1 DAVID BOLEY AND LORI BOLEY PLAINTIFFS/RESPONDENTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS ROGERS, DEFENDANT/PETITIONER 08-5553 CIVIL TERM ORDER OF COURT AND NOW, thisday of January, 2009, upon consideration of the foregoing petition, IT IS ORDERED: (1) A Rule is issued against respondents, David Boley and Lori Boley, to show cause why the petition to open a default judgment should not be granted. (2) Respondents shall file an answer to the petition within fifteen (15) days of service. (3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7. (4) Any depositions shall be completed within thirty-five (35) days of service. (5) A brief by each party shall be filed in chambers not later than February 18, 2009, and argument shall be held on Friday, February 20, 2009, at 8:45 a.m., in Courtroom No. If of the Cumberland County Courthouse. (6) Notice of the entry of this order shall be provided to all parties by petitioner. (7) All proceedings shall stay pending further order Edgar B. Bayley, J. I'll f 1 ? •, a Thomas E. Brenner, Esquire For Plaintiffs ?Michael Dolich, Esquire Thomas F. Klosinski, Esquire For Petitioner sal copou -2- Thomas E. Brenner, Esquire Attorney I.D. No. 32085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 717-234-6810 tebggo ldbergkatzman.com Attorney for Plaintiffs DAVID BOLEY AND LORI BOLEY, : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiffs V. : NO. 08-5553 CIVIL TERM THOMAS ROGERS, Defendant REPLY OF PLAINTIFFS, LORI AND DAVID BOLEY TO DEFENDANT'S PETITION TO OPEN JUDGMENT OF DEFAULT ENTERED ON NOVEMBER 21, 2008 AND NOW comes Plaintiffs, Lori and David Boley (hereinafter referred to collectively as "Plaintiffs" or "Respondents"), by and through their counsel, to respond as follows to Defendant's , Thomas Rogers, (hereinafter referred to as "Defendant" or "Movant"), Petition to Open Judgment of Default Entered on November 21, 2008: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. By way of further answer, service of the Complaint and Notice was effectuated on Defendant Rogers on September 26, 2008 by Sheriff, William Cline, at Defendant's residence 113 Second Street, Boiling Springs, PA 17007. (A copy of the Sheriff's Notice confirming service is attached hereto as Exhibit A.) Moreover, Rogers and his insurer were served with the Notice of Intent to take default judgment on or about November 5, 2008 (Exhibit B). 5. Denied. Respondents are without sufficient knowledge or information to answer the averment in Paragraph 5. However, to the extent a response is required, please note that Movant's insurer was contacted by phone and confirming letter dated April 22, 2008 placing them on notice of Respondent's claim, Further, a formal Demand was served on Movant's insurer by letter dated May 6, 2008. Counsel for Respondent received no response to same. (A copy of the April 22, 2008 and May 6, 2008 letters are attached hereto as Exhibit C) 6. Admitted that appearance was entered. Defendant and his insurer were aware of the Default Judgment docketed on November 24, 2008, and should have communicated this information to his counsel. 7. Denied as stated. The Judgment had been filed six (6) weeks before contact from counsel. 8. Denied. 9. Denied. The averments in this paragraph state conclusions of law to which no response is required. 10. Denied. The averments in this paragraph state conclusions of law to which no response is required. 11. Denied. The averments in this paragraph state conclusions of law to which no response is required. 169568.1 2 12. Denied. By way of further answer, Petitioner's counsel avers that they received assignment of the Movant's file from the insurer on December 29, 2008. This is eight (8) months following Respondent's insurer having been placed on notice of Plaintiff s civil claim and a month following Respondent's insurer's receipt of the November 21, 2008 default judgment by letter dated December 1, 2008. (A copy of the letter dated December 1, 2008 is attached hereto as Exhibit D.) 13. Denied. Petitioner was aware that a civil claim had been filed against him relative to a motor vehicle accident that occurred on or about February 7, 2008 by way of Sheriff s service of the Complaint and Notice at his residence on September 26, 2008. (Exhibit A) 14. Denied. 15. Denied. The averments in this paragraph state conclusions of law to which no response is required. 16. Denied. The averments in this paragraph state conclusions of law to which no response is required. 17. Denied. The averments in this paragraph state conclusions of law to which no response is required. 18. Denied. The averments in this paragraph state conclusions of law to which no response is required. WHEREFORE, Plaintiffs, Lori and David Boley, respectfully request that this Honorable Court deny Defendant's Petition to Open Judgment of Default Entered on November 21, 2008. 169568.1 3 GOLDBERG KATZMAN, P.C. iy? Thomas E. Brenner, Esquire PA Attorney ID #32085 Strawberry Square 320 Market Street, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs David and Lori Boley Date: January 26, 2009 169568.1 4 ? x ?? b.'ji A SHERIFF'S RETURN - REGULAR CASE NO: 2008-05553 P OF PENNSYLVANIA: BOLEY DAVID ET/ AL VS ROGERS THOMAS WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROGERS THOMAS the DEFENDANT at 1817:00 HOURS, on the 26th day of September, 2008 at 113 SECOND STREET BOILING SPRINGS, PA 17007 by handing to RUTH BUCHER, SISTER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.'00 Postage .59 Surcharge 10.00 .00 34.59 Sworn and Subscibed to before me this day So Answers: movie- R. Thomas Kline 10/01/2008 GOLDBERG KATZMAN By: Deputy Sheriff of A. D. 2?X?ib/I.Q I I A full-service law firm. November 4, 2008 Thomas Rogers 113 Second Street Boiling Springs, PA 17007 Re: Boley v. Rogers Cumberland County CCP No. 08-5553 Our File No. 07857-00001 Dear Mr. Rogers: You have not taken any action to defend this action. I enclose notice of our intention to take judgment by default against you. Ver ly yours, Thomas E. Brenner cc: Jennifer Reigner (Claim No. 2008-01258)(with enclosure) David and Lori Boley (without enclosure) TEB/bj s Enclosure 165683.1 Thomas E. Brenner, Esquire Attorney T.D. No. 32085 GOLDBERG KATZMAN, PC PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 717-234-6810 teb@jzoldberQkatzman. corer Attorney for Plaintiffs DAVID BOLEY AND LORI BOLEY, IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiffs V. : NO. 08-5553 CIVIL TERM THOMAS ROGERS, Defendant TO: Thomas Rogers 113 Second Street Boiling Springs, PA 17007 DATE OF NOTICE: November 4, 2008 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAISNT YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GOTO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 165681.1 GOLDBERG KATZMAN, P.C. By: CYIAII? Thomas E. Brenner, Esquire PA Attorney ID #32085 Strawberry Square 320 Market Street, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs David and Lori Boley 165681.1 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid as follows: Thomas Rogers 113 Second Street Boiling Springs, PA 17007 GOLDBERG KATZMAN, P.C. Thomas E. Brenner, Esquire Date: November 4, 2008 165681.1 RECYCLED 0 ?xdrb?F C iV April 22, 2008 \ Via facsimile (215-956-0713) Jennifer Reigner, Claims Specialist Claims Management Resources, LLC 1120 Welsh Road, Suite 220 North Wales, PA 19454 RE: Claim No. 2008-01258 Insured: Thomas Rogers My Clients: Lori and David Boley DOL: 2/7/2008 Dear Ms. Reigner: In follow-up to my phone call placed to you earlier today, our office represents the interest of Mr. and Mrs. Boley with regard to the property damage and personal injuries arising from the motor vehicle accident. I would ask that you provide a copy of the applicable declaration page for the Capital Insurance Company to confirm the property damage limit which you have indicated. Does Mr. Rogers have counsel? The proposal to pay less than one-third of the property damage occasioned to the Boleys in exchange for a Release is unacceptable. If Mr. Rogers is willing to supplement the property damage limit with additional payment, I am sure that an arrangement can be reached to protect the interest of your client, the insurance company, as well as the insured. Very truly yours, Thomas E. Brenner TEB:ak cc: David and Lori Boley 157417.1 www.goldbergkatzman.com !,May 6, 2008 A full-service law firm. Claims Management Resources, LLC 1120 Welsh Road, Suite 220 North Wales, PA 19454 .?.? tlulr ?_.:?oldberr Att: Jennifer Reigner, Claims Specialist Harry 13. Goldherg 9i0 Re: Your client: Thomas Rodgers Claim No.: 2008-01258 Date of Loss: 2!7!2008 1 R"I'o d ""VI. Kal-ZI11.211 - My client: David and Lori Boley 131111. sposito 1 .."veil (. ?lEllte!-?hi)t Dear Ms. Reigner: T. Iav Coo-per ?1(:!11iS l".. i?i•r11?.1?,1. I am writing to you today to provide you with a Statement of Demand on ?t2'd;1?-IC:ItaG behalf of my clients, David and Lori Boley. David was injured in an auto accident jerrv j. Russo caused by your insured, Thomas Rodgers, on February 7, 2008. Although this tlaet 1. C;1-xenri ;.?tic ae 1 traumatic experience and the attendant physical problems may resurface, Mr. • n??b r l h Boley is no longer under medical care for those injuries and desires to conclude ?tt'v?ll I=,. ftltil%1-J this matter. Please permit me to set forth our position. Rowe L?? }1.Liy David M. steclcd as background, David Boley is a 42 year old husband and father Briefly joseph IA. Sembrot - , of three, who is employed as principal of W.G. Rice Elementary School in Mt. Ark, J =ldisr.er ? Holly Springs, Pennsylvania. At the time of this occurrence, he was in good Nl ocha ?hich health, fully occupied with his family and employment, and the driver of a 2004 Chevrolet Malibu which was insured by USAA, policy #00553 83 01. The medical claims which were a consequence of this injury were directed to Joseph [D. Lock Cerda, Adjuster at USAA, whose fax number is 888-272-1255. A copy of the P Arnold USAA declarations which were in effect at the time is enclosed for your reference aterno Heather hr L. . P<1ter11a , and specifies full tort coverage. (See Exhibit A) On the date of the accident, a Thursday evening, Mr. Boley was driving his Chevrolet Malibu north toward his home on Forge Road. He slowed as a maroon Mustang just ahead of him was pausing to turn left onto Forgedale Drive. Your driver, also traveling north behind Mr. Boley at a speed of around 50 mph, came upon these two cars, was unable to stop, and struck the Boley vehicle with sufficient force to crumple the rear and side panels of the Boley vehicle, which was then propelled forward into the turning Mustang, causing a second impact, damaging the front end of the Malibu as well as causing rear damage to the Mustang. As you are surely aware, the damage to the front end of Mr. Rodger's t.., Bo" , l ; 04 (1_as i t :'r"?t:(?r=rat<1tt:4m .. :•s -. ?? . l; - () i F, i?t) 11"Ia11- .et Street, u. berry .` qu arc ` Ro. Bo" `6:1- ` `Ial r I I vehicle, due to the speed at impact, was also disabling. Both Mr. Rodgers' and Mr. Boley's vehicle required towing from the scene. The accident was investigated by Pennsylvania State Police, with the report indicating that your driver, Thomas Rodgers, was cited for DUI as well as using a hand held phone, which he was apparently answering just prior to the collision. A separate intoxication report has been filed the by State Police, but we have not pursued that portion of this investigation. Mr. Rodgers was taken into custody, while Mr. Boley was extracted from his vehicle by local fire companies using "jaws of life" equipment, since none of the four doors of his Malibu could operate. Please refer to the photos enclosed which demonstrate the damage to Mr. Boley's vehicle, which was subsequently declared a total loss. (See Exhibit B) An emergency medical team stabilized Mr. Boley with a back board and cervical collar by crawling into him through a back window. He was then transported by ambulance to Carlisle Regional Medical Center. He was examined in the Emergency Department, with particular attention to his spine since his main complaint was mid back pain, rated at 6/10. After evaluation, he was felt to be safe for discharge to home, with recommendation for Tylenol or Advil and a heating pad for his back. He immediately utilized a hot whirlpool tub for relief. During the week following this event, Mr. Boley returned to work but was limited in his activities due to discomfort, and some days left early because of his back discomfort; he rested and frequently used the hot whirlpool tub at home to ease his pain. He followed up with his family physician a week later, who found that back flexion was limited, but with deep tendon reflexes intact, advised conservative care and continued use of heat and anti-inflammatory medications. As February continued, Mr. Boley could not participate in family activities, such as ice skating, which his three children were learning with his assistance. He also found that he could not participate in sledding, another winter activity for his children, particularly his six year old daughter who was more confident if her dad was with her. Mr. Boley also regretted that his wife and other children were required to tackle any lifting and bending tasks, including some snow shoveling. Throughout this period, he was additionally aggravated by riding to work in his rental vehicle which brought further discomfort to his already painful back. After four weeks, he was still experiencing a painful back when sitting for any length of time. In March, he was advised of some stretching exercises that might relieve his aches and stiffness. He noted that a brief trip into Maryland around St. Patrick's Day was so uncomfortable for him that he had to stop and take a break. A few days later, he noticed sharp back pain in the same area of his back that had bothered him all along, but now with sharp pains in his chest, which increased with deep inspiration, swallowing or sneezing. He returned to his family physician, who prescribed Prilosec for reflux, possibly brought on by the constant use of the anti- inflammatories, and ordered an EKG, chest X-ray and stress test to rule out any cardiac involvement. Those tests were negative. It was not until April, nearly three months after this accident, that Mr. Boley felt close to normal again. (See medical records, Exhibit C) Throughout this period of late winter and early spring, Mrs. Boley had more than her share of family and household responsibilities, since Mr. Boley was restricted in his activities and often reduced to back rest. In his position as a school principal, he pushed through his responsibilities at work despite how his back felt. His time at home, after a day of school demands coupled with the underlying back discomfort, left him at times worried, drained of energy and somewhat depressed, all of which puts strain on the marital partner, most especially when young children are at home. Even though this period was relatively short, the weeks involved with his recovery presented challenges to both Mr. and Mrs. Boley as they coped with the influences of this accident which affected each day. The Boleys and I are now at a point where settlement of this matter should be a serious consideration. My client, while his painful back has seemingly resolved, has surely lost a period of this year with pain which persisted for several weeks and caused infringement into his life. As a completely innocent driver, who was caused this misery, embarrassment and inconvenience by your driver, who was in clear violation of the law, I am delegated to demand the full policy limits of $15,000.00 of Thomas Rodgers in satisfaction of this claim. The purpose of sending this letter at this time is to allow you to focus on your review, with all of the facts relative to the injury before you. I hope that, after a review of these enclosed materials, you will be able to expediently determine if this case may be resolved amicably. Very ruly yours, Thomas E. Brenner Enclosures teb/sar 157747v1 ??Vcllo (D b rxlr6;f F1 wr r% s ? - I r t E, A full-service law firm. December 1, 2008 Jennifer Reigner, Claims Specialist Claims Management Resources, LLC :-_ .,i,-,. 1120 Welsh Road, Suite 220 North Wales, PA 19454 RE: Claim No. 2008-01258 Insured: Thomas Rogers My Clients: Lori and David Boley DOL: 2/7/2008 Dear Ms. Reigner: I enclose a copy of the default judgment that was entered of record as counsel did not appear to defend the interests of Mr. Rogers following the filing of the lawsuit. We will list the claim for an arbitration hearing for the purposes of assessing damages on the personal injury claim of Mr. Boley. Veyy?truly yours, t Thomas E. Brenner TEB/stw Enclosure 157417.1 1 hti I CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid as follows: Michael Dolich, Esquire Thomas F. Klosinski, Esquire 222 East Orange Street Lancaster, PA 17602 (Attorneys for Defendant, Thomas Rogers) GOLDBERG KATZMAN, P.C. By: %L _ tban-66E. Brenner, Esquire Date: January 26, 2009 169568.1 ORIGINAL BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 Attorney for Defendant, Thomas Rogers DAVID and LORI BOLEY vs. THOMAS ROGERS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET NO. 08-5553 REPLY OF DEFENDANT, THOMAS ROGERS TO PLAINTIFFS' REPLY TO DEFENDANT'S PETITION TO OPEN JUDGMENT OF DEFAULT ENTERED ON NOVEMBER 21.2008 Defendant, Thomas Rogers, by and through his counsel, Bennett, Bricklin & Saltzburg LLP hereby files the within Reply to Plaintiffs' Reply to Defendant's Petition to Open Judgment of Default, and in so doing, avers as follows: 4. Denied. By way of further answer, Defendant, Thomas Rogers states he was never served with the Complaint and thus had no ability to respond or serve it on his insurer. Further, Defendant Thomas Rogers denies ever receiving the Notice of Intent to Enter Judgment by Default. See Affidavit of Defendant Thomas Rogers attached hereto as Exhibit "A". Admitted in part and denied in part. It is admitted that Plaintiffs served a formal demand on Defendant's insurer by letter dated April 22, 2008, which was received by Defendant on or about April 24, 2008. It is specifically denied that counsel for Plaintiffs received no response to same. To the contrary, Defendant's insurer forwarded a letter acknowledging the initial notice letter from Plaintiffs' counsel on April 24, 2008. See Affidavit of Jennifer Reigner of Claims Management Resources, LLC, carrier for Defendant Thomas Rogers. It is further admitted that Plaintiffs served a formal demand on Defendant's insurer by letter dated May 6, 2008, received May 8, 2008. It is specifically denied that counsel for Plaintiffs never received a response to same. Rather, on May 16, 2008 an offer of settlement was conveyed to counsel for Plaintiffs. On August 13, 2008, a call was placed to counsel for Plaintiffs renewing the original offer to settle and no further response was received. Counsel for Plaintiffs never contacted the carrier for Defendant to inform them he was filing suit and never forwarded a courtesy copy of the Complaint filed in this matter. Further, counsel for Plaintiffs never forwarded a copy of the Notice of Intent to take Default Judgment but rather, on December 1, 2008, forwarded a copy of the default notice. See Exhibit "A". 6. Denied. Defendant, Thomas Rogers, denies ever having been served with the Notice of Intent to Enter Judgment by Default. See Exhibit "A". 12. Denied. By way of further answer, counsel for Defendant received assignment of the Defendant's file from the insurer on December 29, 2008. Counsel for Plaintiffs served Defendant's insurer with a formal demand on May 6, 2008. In response, Defendant's insurer conveyed an offer of settlement in the amount of $5,000.00 to counsel for Plaintiffs. Defendant's insurer never received a response from Plaintiffs to this offer of settlement. Further, Defendant's insurer was never provided with a courtesy copy of the Complaint filed by counsel for Plaintiffs or made aware that suit had been initiated. Further, counsel for Plaintiffs never forwarded a copy of the Notice of Intent to Take Default in this matter but rather, forwarded a copy of the default notice on December 1, 2008. Defendant's insurer was under the impression that counsel for Plaintiffs was communicating with his clients in response to the offer of settlement. See Exhibit "B", Affidavit of Jennifer Reigner of Claims Management Resources. 2 13. Defendant was never served with a copy of the civil claim filed against him relative to the motor vehicle accident that occurred on February 7, 2008. See Exhibit "A". WHEREFORE, Defendant, Thomas Rogers, respectfully requests this Honorable Court to open said default and allow Defendant to answer the Complaint in this matter. Respectfully submitted, BENNETT, BRICKLIN & SALTZBIURG LLP BY: T OMAS F. KLOSINSKI, ESQUIRE Attorney for Defendant, Thomas Rogers Dated: February 9, 2009 3 VERIFICATION I, Thomas F. Klosinski, Esquire, do hereby verify that I am the attorney of records for the within named defendant, Thomas Rogers, in the above-captioned action and that the facts set forth in the foregoing Reply of Defendant Thomas Rogers to Plaintiffs' Reply to Defendant's Petition to Open Judgement of Default Entered on November 21, 2008 are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. J.- TMAS F. KLOSINSKI DATE: February 9, 2009 BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 222 EAST ORANGE STREET Attorney for Defendant, Thomas Rogers LANCASTER, PA 17602 (717) 393-4400 DAVID and LORI BOLEY COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. THOMAS ROGERS CIVIL ACTION - LAW DOCKET NO. 08-5553 CERTIFICATE OF SERVICE I, Thomas F. Klosinski, Esquire, hereby certify that the foregoing Reply of Defendant Thomas Rogers to Plaintiffs' Reply to Defendant's Petition to Open Judgment of Default Entered on November 21, 2008 has been served this date upon the following counsel by way of United States First Class Mail, postage prepaid, addressed as follows: Thomas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 Harrisburg, PA 17108 (Counsel for Plaintiffs) THO AS F. KLOSINSKI, ESQUIRE Dated: February 9, 2009 AFFIDAVIT My name is Thomas Rogers. My date of birth is January 30, 1962. My address is 113 2°a Street, PO Box 314, Boiling Springs, PA, 170007. I reside at this address with family. I have been made aware of a Complaint filed in the Court of Common Pleas of Cumberland County, by David and Laura Boley for an accident which occurred on February 7, 2008. I have not been served with a Complaint and I have not received notice of an Intent to Enter Judgment by Default. I make the above true statements with knowledge of penalties for sworn statements under law /,2-(3/09 7712i?? ---d- zz Da Thomas Rogers WHEREFORE, Defendant requests that New Matter be Granted and that plaintiffs' Complaint be Dismissed. l Dated: I (y BENNETT, BRICKLIN & SALTZBURG LLP By: f 0 r Michael Dolich, Esqui Thomas F. Klosinski, Esquire Attorneys for Defendant, Thomas Rogers 3 AFFIDAVIT I, Jennifer Reigner am the assigned claims representative for Claims Management Resources for the file of Thomas Rogers and in support thereof aver as follows: I received the initial notice of the claim of plaintiffs, David and Lori Boley, by way of letter from their attorney, Thomas E. Brenner, Esquire on April 24, 2008. 2. On that same date, I prepared and forwarded an acknowledgment letter to Thomas E. Brenner, Esquire in response to his initial notice of claim. I received a demand package by way of correspondence from plaintiffs' counsel on May 8, 2008. 4. After reviewing the specials package from plaintiffs' counsel, I communicated an initial offer of settlement in the amount of $5,000.00 to Mr. Brenner on July 16, 2008. I received a phone message from Mr. Brenner advising that his clients were not agreeable to the $5,000.00 and in response, I called Mr. Brenner and left a message advising that there would be no increase in the original offer at this time. I further requested he discuss the matter further with his clients. 6. August 13, 2008 was the last communication between myself and plaintiffs' counsel. I never received a courtesy copy of the Complaint filed in this matter or anynotice from Mr. Brenner that he was filing suit. 7. I never received a copy of the Notice of Intent to Take Default Judgment. 8. On December 1, 2008 I received a copy of the default judgment notice obtained by plaintiffs' counsel in this matter. I make the above true statements with knowledge of penalties for sworn statements under law. • LA o9 Date a NAZI rry DAVID BOLEY AND LORI BOLEY PLAINTIFFS/RESPONDENTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS ROGERS, DEFENDANT/PETITIONER : 08-5553 CIVIL TERM ORDER OF COURT AND NOW, this -TNA-ay of February, 2009, the petition of defendant, Thomas Rogers, to open a default judgment on liability, IS DENIED. By t ou Edgar B. Bayley, J. Z Thomas E. Brenner, Esquire For Respondents Thomas F. Klosinski, Esquire For Petitioner :sal ?op? F s rr? L LL a?o r ?. .._.. rte. ...._. f-• ?r ^_ =, ?..., - '-` ? i :....e ?i?l l ?.i tt ?-?1 L3 ++?? i... .. ; ?^ CW3 ' l \??' C:„x «? fir/ DAVID BOLEY AND LORI BOLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 08-5553 20 THOMAS ROGERS RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Thomas E. Brenner, Esquire counsel for the plaintiffldefendant 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 $ less than $50,000 The counterclaim of the defendant in the action is $ 0 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: NONE WHEREFORE, your petitioner prays your Honorable to appoint three (3) arbitrators to whom the case shall be submitted. Res ed, omas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1286 ORDER OF COURT AND NOW, ---,200 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, EDGAR B. BAYLEY ? 0 ? „G 4 'p -? a ??? ?? i -? -:. .?"' > a .?,, . ? -.; ??, <? .? DAVID BOLEY AND LORI BOLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO 08-5553 20 THOMAS ROGERS RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Thomas E. Brenner, Esquire , 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 $ less than $50,000 The counterclaim of the defendant in the action is $ 0 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: NONE WHEREFORE, your petitioner prays your Honorable to appoint three (3) arbitrators to whom the case shall be submitted. Res ed,'I omas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1286 ORDER OF COURT AND NOW, /WaAz-k /(a , 200 , in consideration of the foregoing petition, Esq., and 1;Ux A) _ JAJ 4y,* irrcet? Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By o , v EDGAR B. BAYLEY .? r r r? 2 C7 N Z) --P, ? A ICA O'ct 4 I tv, wM ? U J ? „p O d o ° y C- tJl2: 4,. :? -? - l I/Y" C_kiG 'BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 ATTORNEY FOR DEFENDANT, Thomas Rogers DAVID and LORI BOLEY COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION - LAW DOCKET NO. 08-5553 THOMAS ROGERS PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification ofDefendant, Thomas Rogers, for the Verification of Thomas F. Klosinski, Esquire, submitted with the Answer of Defendant Thomas Rogers to Plaintiffs' Complaint with New Matter which was filed on or about January 5, 2009. BENNETT, BRICKLIN & SALTZBURG LLP BY: l./ THOMAS F. KLOSINSKI, ESQUIRE Attorney for Defendant, Thomas Rogers Dated: March 12, 2009 1 VERIFICATION I, Thomas Rogers, do hereby verify that I am a named defendant in the above-captioned action and that the facts set forth in the foregoing Answer to Complaint and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. THOMAS ROGERS DATE: 4f6 W, BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 ATTORNEY FOR DEFENDANT, Thomas Rogers 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 DAVID and LORI BOLEY COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION - LAW THOMAS ROGERS DOCKET NO. 08-5553 CERTIFICATE OF SERVICE I, Thomas F. Klosinski, Esquire, hereby certify that the foregoing Praecipe to Substitute Verification has been served this date upon the following counsel by way of United States First Class Mail, postage prepaid, addressed as follows: Thomas E. Brenner, Esquire Goldberg Katzman, P.C. P.O. Box 1268 Harrisburg, PA 17108 (Counsel for Plaintiffs) LV ILI THOMAS F. KLOSINSKI, ESQUIRE Dated: March 12, 2009 3 ? ' ; ? ?-? r ?? ; ?z _ Y, ? -? . ?' ? r? , ? r ?--. DAVID BOLEY, ET AL., IN THE COURT OF COMMON PLEAS OF PLAINTIFFS CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS ROGERS, DEFENDANT 08-5553 CIVIL TERM ORDER OF COURT AND NOW, this 2-1--'` day of May, 2009, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. Jerry Weigle, Esquire, Chairman, shall be paid the sum of $50.00. -/"J?erry Weigle, Esquire COP, ryiW LCL, Court Administrator :sal (2x.-1.rY ? ?;? V'L ui _ LL. BENNETT, BRICKLIN & SALTZBURG LLP BY: Thomas Klosinski, Esquire I.D. No. 82427 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 40 S ORIGINAL ATTORNEY FOR DEFENDANT, Thomas Rogers DAVID and LORI BOLEY COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION - LAW DOCKET NO. 08-5553 THOMAS ROGERS ORDER TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned civil action settled, discontinued and ended. GOLDBERG KATZMAN, P.C. B J D renner, Esquire sfl? , ri FILED : Rv OF 9 ?I' r i 2009 JUL 17 F 12: 1 r?