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Home My WebLink About09-2067V Hipolito Cruz d/b/a Import Used Cars, Ltd., Plaintiff V. Carlisle Carrier Corp., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09- ;LOG.r CIVIL ACTION NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take acticn 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 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Dauphin County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. Hipolito Cruz d/b/a Import Used Cars, Ltd., Plaintiff V. Carlisle Carrier Corp., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION 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 objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO ROWDIATAMENTE. 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 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 Hipolito Cruz d/b/a Import Used Cars, Ltd., Plaintiff V. Carlisle Carrier Corp., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. d,?. -904 *7 CIVIL ACTION COMPLAINT AND NOW, comes the Plaintiff, HIPOLITO CRUZ D/B/A IMPORT USED CARS, LTD., by and through its counsel, R. Mark Thomas, Esquire, and files this complaint against the Defendant, CARLISLE CARRIER CORP., and in support thereof respectfully represents: Plaintiff is an adult individual who resides at 445 Silver Spring Road, Mechanicsburg, Cumberland County, Pennsylvania, and operates a business known as Import Used Cars, Ltd., with its principal place of business located at 219 Bonners Hill Road, York Springs, Adams County, Pennsylvania 17372. 2. Defendant, CARLISLE CARRIER CORP., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 6380 Brackbill Boulevard, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Plaintiff is the owner of a 2000 Kauffinan Trailer, Vin #15XFE503XY1002193. 4. On or about March 2, 2009, at approximately 11:30 a.m., the Plaintiff's trailer was struck by the trailer of a truck being driven by Thomas A. Barwick, Jr., an employee of the Defendant who at the time of this accident was acting within the scope and course of his employment for the Defendant. 5. The accident took place at the driveway entrance to 445 Silver Spring Road, Mechanicsburg, Cumberland County, Pennsylvania. 6. The accident was caused by the negligence and carelessness of Thomas A. Barwick, Jr. 7. The accident occurred as Plaintiff Hipolito Cruz was attempting to back his trailer out of the driveway located at 445 Silver Spring Road, Mechanicsburg, Pennsylvania. 8. Mr. Cruz observed the Defendant's tractor trailer approaching from the north and headed in a southbound direction on Silver Spring Road and, therefore, brought his trailer to a stop at a point where the rear most portion of Plaintiff's trailer was at least five (5) feet west of the fog line for traffic traveling southbound on Silver Spring Road. 9. The trailer driven by Mr. Cruz remained stopped at this distance from the fog line to allow Defendant's tractor trailer to pass cleanly on Silver Spring Road. 10. As Defendant's tractor trailer passed by the driveway at 445 Silver Spring Road, it veered to the right of the fog line and the trailer part of the Defendant's tractor trailer struck the Plaintiff's trailer causing damage thereto. 11. The carelessness, recklessness, and negligence of Thomas A. Barwick, Jr., consisted of the following: A. He failed to keep his tractor trailer within the lane of travel in which he was traveling; B. He failed to keep his tractor trailer under control as he passed by the driveway at 445 Silver Spring Road; C. He failed to proceed cautiously after having had ample opportunity to see Plaintiff s trailer in the driveway at 445 Silver Spring Road; D. He failed to travel at a safe speed under the circumstances then existing at the time of the accident; and 4 E. He otherwise failed to exercise due care for the rights and safety of others, including the Plaintiff and the Plaintiff's property which were legally on or approaching the highway on which he was driving. 12. Due to the recklessness, negligence, and carelessness of Thomas A. Barwick, Jr., Plaintiff's trailer suffered damages totaling in excess of Three Thousand Dollars ($3,000.00). 13. The precise amount of property damages has not yet been determined as the Plaintiff is in possession of only an estimate of the damages which is subject to being modified when the repairs are actually made. 14. Defendant is liable for the recklessness, negligence, and carelessness of Thomas A. Barwick, Jr., since he was acting within the course and scope of his employment for the benefit of Defendant when this accident occurred. WHEREFORE, Plaintiff, HIPOLITO CRUZ D/B/A IMPORT USED CARS, LTD., prays for judgment against Defendant, CARLISLE CARRIER CORP., in an amount in excess of Three Thousand Dollars ($3,000.00), the precise amount of which cannot be determined until repairs are actually made. Respectfully submitted, R. Mark Thomas, Esquire Attorney ID# 41301 101 South Market Street Mechanicsburg, PA 17055 Attorney for Plaintiff e ; . 46 VERIFICATION I, A i f v Cnf z , have read the foregoing Complaint. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities, which provides that, if I knowingly make false averments, I maybe subject b criminal penalties. Date: 3 30 R CD IN?oriov" OF 4 ApR -2 AM 0 34 , ?,? CfltJ?Y I ,P.i, az4 X 7?, 0 G? a 3 /.z 4C .7 3i- o 7;? 0 ILI 0 b 10. Q c.a rw Sheriffs Office of Cumberland County R Thomas Kline 4, at ?ir,llyrr/?0 Edward L Schorpp Sheriff CON', Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFR :'F `"`RIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/07/2009 03:05 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on April 7, 200E at 1505 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Carlisle Cartier Corp., by making known unto Karol Kabroth, Director of Safety and Claims, at 6380 Brackbill Blvd., Mechanicsburg, Cumberland County, Pennsylvania, 17050, its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.42 April 08, 2009 SO ANSW-, ?"p R THOMAS KLINE, SHERIFF Dep y Sher Docket No. 2009-2067 Hipolito Cruz v Carlisle Carrier Corp. Fir (F THE l- THONMARY 2009 APR 13 AM 10. 7 CUIVIb PENNSYLV,44iA THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant HIPOLITO CRUZ d/b/a IMPORT USED CARS, LTD., Plaintiff V. CARLISLE CARRIER CORP., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2067 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for Defendant in the above matter. DATE: ?-4 l THOMA , THOMAS & HAFER, LLP By. Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant 687887-1 r CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the day of , 2009: R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP By: ` Kevin C. McNamara, Esquire 687887-1 q !tom. F3l_Et -Of 2003 APR 20 PH 1* 26 THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant HIPOLITO CRUZ d/b/a IMPORT USED CARS, LTD., Plaintiff V. CARLISLE CARRIER CORP., Defendant TO: Plaintiff and Counsel: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2067 CIVIL TERM NOTICE TO PLEAD You are hereby notified to plead to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, DATE: ,-5/'-;L g-10 ° THOMAS, THOMAS & HAFER, LLP By: C Kevin C. McNamara, Esquire Attorneys for Defendant 687887-1 THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant HIPOLITO CRUZ d/b/a IMPORT USED CARS, LTD., Plaintiff V. CARLISLE CARRIER CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2067 CIVIL TERM Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes Defendant, Carlisle Carrier Corp., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and answers Plaintiff's Complaint as follows: 1. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 2. Admitted. 3. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 4. Admitted in part and denied in part. It is admitted that an accident happened on March 2, 2009. The accident occurred at approximately 11:43 a.m. at 445 Silver Spring Road in Silver Spring Township. It is denied that the Defendant's tractor and trailer struck the Plaintiff's unit. To the contrary, the Plaintiff backed into the side of the Defendant's unit. It is admitted that Mr. Barwick was an employee of Carlisle Carrier and that he was in the course and scope of his employment at the time of the accident. 5. Denied as stated. The accident actually occurred on Silver Spring Road when the Plaintiff backed out of the driveway and into the side of the Carlisle Carrier trailer. 6. Denied. The accident was caused exclusively by the careless backing maneuver of Hipolito Cruz. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that an accident occurred and that the Carlisle Carrier vehicle was traveling in a southbound direction on Silver Spring Road. However, it is denied that the Plaintiff stopped his vehicle five feet west of the fog line. Instead, the vehicle operated by Mr. Cruz backed out onto the travel portion of the road striking the side of the Carlisle Carrier trailer. 9. Denied. The trailer operated by Mr. Cruz pulled out on to the road striking the side of the Carlisle Carrier vehicle. 687887-1 2 10. Denied. The Plaintiff's vehicle backed into the side of the Carlisle Carrier vehicle as it passed. 11.A.-E. Denied. These allegations represent conclusions of law to which no response is required. By way of further answer, this accident and all physical damage to the involved vehicles was the fault and responsibility of Hipolito Cruz. 12. Denied. These allegations represent conclusions of law to which no response is required. By way of further answer, any damage to the Plaintiff's vehicle was entirely his fault. 13. Denied. It is denied that the Defendant is liable to the Plaintiff for any amount of damages. 14. Denied. These allegations represent conclusions of law to which no response is required. While it is true that Thomas Barwick was in the course and scope of his employment with Carlisle Carrier when the accident occurred, the accident was solely and entirely the fault of the Plaintiff. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed without cost to him. NEW MATTER 15. The Plaintiff's action for damages is barred in its entirety by virtue of his own negligence in backing onto Silver Spring Road when it was not safe to do so. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed without cost to him. 687887-1 3 COUNTERCLAIM 16. Carlisle Carrier Corp. hereby incorporates by reference its answers to the Complaint as if set forth at length. 17. The accident involving the Plaintiff's and Defendant's vehicles that occurred on March 2, 2009, was caused entirely by the negligence of Hipolito Cruz, said negligence consisting of the following: (a) backing out onto Silver Spring Road when the path was not clear to do so; (b) violating the rules of the road generally and, in particular, 75 Pa.C.S. § 3324; (c) invading the right of way of the Carlisle Carrier vehicle; (d) failing to park his vehicle, trailer first so as to permit a safe re-entry onto Silver Spring Road; and (e) failing to ensure that traffic was either clear or stopped so as to permit access onto Silver Spring Road. 18. As a result of the negligence of Hipolito Cruz, Carlisle Carrier sustained damage to its trailer in the amount of $12,449.76. 687887-1 4 WHEREFORE, Counterclaim Plaintiff Carlisle Carrier Corp. demands judgment in its favor in the amount of $12,449.76, plus interest. DATE: 51P 81'o Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: 1 Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant 687887-1 5 MAY-28-2009 THU 12:29 PM CARLISLE CARRIER CORP FAX:7176919254 VERIFICATION 1 1, LARo! KP Rr o jc? state that l am an authorized representative of CARLISLE CARRIER CORP., that I make this Verification on behalf of CARLISLE CARRIER CORP., and that I am familiar with the facts set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 18 Pa.C.S. § 4904 relating to unswom falsification to authorities. CARLISLE CARRIER CORP. sY:.-L 1& DATE: ct1,vX,o ?? t1 P, 001 If 1571-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the p , United States mail, postage prepaid, on the,0 day of M6L , 2009: R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055 687887-1 THOMAS, THOMAS & HAFER, LLP By: C VVI 1 Kevin C. McNamara, Esquire 6 .. I t C11/ ?ilr?,1 b • cvlj.•t Hipolito Cruz d/b/a Import Used Cars, Ltd., Plaintiff V. Carlisle Carrier Corp., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2067 CIVIL ACTION PLAINTIFF'S REPLY TO NEW MATTER AND ANSWER TO DEFENDANT'S COUNTERCLAIM AND NOW, comes the Plaintiff, HIPOLITO CRUZ D/B/A IMPORT USE CARS, LTD., by and through its counsel, R. Mark Thomas, Esquire, and files this reply and answer to Defendant's new matter and counterclaim: 15. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, to the extent a reply is required, Plaintiff denies that it negligently backed its vehicle onto Silver Spring Road at the time of this accident. WHEREFORE, Plaintiff, HIPOLITO CRUZ D/B/A IMPORT USED CARS, LTD., prays that this defense be dismissed. COUNTERCLAIM 16. No answer required. 17. (a) - (e). Denied. These allegations represent conclusions of law to which no response is required. By way of further answer, this accident and all physic 1 damage to the involved vehicles was caused by the negligence and recklessness of Thomas A. Barwick, Jr., an employee of the Defendant, who at the time of this accident was acting within the scope and course of his employment for the Defendant. Further, a allegations of negligence as set forth by the Defendant in this paragraph are false. Plai tiff's vehicle never left his driveway prior to being struck by the Defendant's vehicle. 18. Denied. Plaintiff is without sufficient knowledge, information or belief, following reasonable investigation to either affirm or deny this allegation and, therefore, same is i denied and strict proof thereof demanded at time of trial. WHEREFORE, Plaintiff prays that this Honorable Court will enter iudament in favor of the Plaintiff and against the Defendant on the Defendant's Counterclaim. Respectfully submitted, R. Mark Thomas, Esquire Attorney ID# 41301 101 South Market Street Mechanicsburg, PA 17055 Attorney for Plaintiff VERIFICATION I, Z4244 ?12 67VZ, have read the foregoing Complaint. The factual statements contained therein are known by me and are true and correct on and belief. This statement and verification is made subjei to unswom falsification to authorities, which provide may be subject b criminal penalties. Date:_Yhr-?1Qe?n? ig I CERTIFICATE OF SERVICE I, R. Mark Thomas, Esquire, hereby certify that I have served a true andl correct copy of the within document on the following person by depositing a true and correct cop of the same in the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to: Kevin C. McNamara, Esquire THOMAS, THOMAS & HAFER, LLP P. O. Box 999 Harrisburg, PA 17108 Date: 52009 R. Mark Thomas, Esq. " ?X 2009 JUN I I AN Ifl- 38 GUr, f ?v'UN Y THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-'1135 kmcnamata@tthlaw.com HIPOLITO CRUZ d/b/a IMPORT USED CARS, LTD., Plaintiff v. CARLISLE CARRIER CORP., Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS O~v PENNSYL~Al~A CUMBERLAND COUNTY -- i , <<-, _ w NO. 09-2067 `=' ~_` ~ m ~, t'~ ' ~ ~ : CIVIL TERM ?= :- ~ _~ ;~~- -;; JURY TRIAL DEMANDED ~. ~ ~ NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is hereby given that Defendant, Carlisle Carrier Corp., appeals the award of the board of arbitrators entered in this case on February 2, 2010. A jury trial is demanded. I hereby certify that the compensation of the arbitrators has been paid. THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7132 Attorneys for Defendant Date: ~~9~ ~ X350. oo P~ A-t'N -~~ 15(ob3~ ~ a37sa1 779418.1 CERTIFICATE OF SERVICE I, Rick Stains, Jr., a Paralegal for the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the `~~ day of February, 2010, on all counsel of record as follows: R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP By: Rick Stains, Jr., Parale al to Kevin C. McNamara 2