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Home My WebLink About09-28754 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Civil Action - Law Plaintiffs No. 09- A 7,5 Te, ,t V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants : .Jury Trial Demanded PRAECIPE FOR A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons against the Following Defendants: Samantha Lynn Kleckner 146 Bedford St Carlisle PA 17013 Paula S. Black 29 Garden Parkway Carlisle PA 17013 Date: Respectfully submitted, enneth A. Wise i. D. No. 16142 LEVIN & WISE 27 West Third Street P. O. Box 231 Lewistown, PA 17044-0231 RLEQ-O ICE tom,, . <;_ e? Y «. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Civil Action - Law Plaintiffs No. 09 - o7815 (2i "4 7erw& v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants Jury Trial Demanded WRIT OF SUMMONS To the Defendants: Samantha Lynn Kleckner 146 Bedford St Carlisle PA 1713 Paula S. Black 29 Garden Parkway Carlisle PA 1713 You are hereby notified that Plaintiffs, Keith L. Avery and Linda Avery, have commenced an action against you. Date: 5,07 0 (Prot notary) By: (Dep d IN THE C6URT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. VERY and LINDA AVERY, Plaintiffs, v. SAMANT and PAUI , LYNN KLECKNER S. BLACK, dants. CIVIL DIVISION No. 09-2875 PRAECIPE FOR APPEARANCE (Jury Trial Demanded) Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 IN THE C6URT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. VERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plai tiffs, v. SAMANTA LYNN KLECKNER and PAULA S. BLACK, Defendants. PRAECIPE FOR APPEARANCE TO THE P OTHONOTARY: Kindly enter the appearance of the undersigned, Jeffrey C. Catanzarite, Esquire, of the law fir of Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., on behalf of the Defendant , Samantha Lynn Kleckner and Paula S. Black, in the above case. JURY TRI L DEMANDED Respectfully submitted, Summers, McDonnell, Hudock, hrie & Skeel, L.L.P. By: v Je r . Ca anzarite, Esquire Cktinsel for Defendants CERTIFICATE OF SERVICE I h?reby certify that a true and correct copy of the within Praecipe for Appearance was served upon the following counsel of record on the 18th day of May, 2009, by O.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 By: Summers, McDonnell, Hudock, hrie & Skeel, L.L.P. 1U-, J rey C. Catanzarite, Esquire CIdunsel for Defendants OF T!~'E Ph'?)Tl ,?$"kj 2009 MAY 20 PH 12: 5 1 C7 0 c-.- ~, , i ' ! : ' ~ C 11 r _ _ , .. z , ' -r f ~~ - -i-, _- ~ , -.._ ~'} i_.T 1 ~ ~~ r~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs, v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. CIVIL DIVISION No. 09-2875 PRAECIPE FOR RULE TO FILE COMPLAINT (Jury Trial Demanded) Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 ,- rr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, Plaintiffs, v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. No. 09-2875 PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly rule the Plaintiffs, Keith L. Avery and Linda Avery, to file a Complaint in Civil Action within twenty (20) days. JURY TRIAL DEMANDED Respectfully submitted, S ers, McDonnell, Hudock, Gut rie & Skeel, P.C. By: w~ ~ yv ~. Jeffr~ C. Catanzarite, Esquire Cou el for Defendants ' ,~' CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Rule to File Complaint was served upon the following counsel of record on the 26th day of January, 2010, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3~d Street P.O. Box 231 Lewistown, PA 17044-0231 Su a s, McDonnell, Hudock, uth ie & Skeel, P.C. By: y Jeffr C. C tanzarite, Esquire Co sel for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, Plaintiffs, No. 09-2875 v. n SAMANTHA LYNN KLECKNER ~,. ~`-r-`'' -- a ~ .~: -;-, ~~~~? and PAULA S. BLACK, ~f . ~`~ CJ -~:=c~ i' r Defendants. --- ~.' ~- ' ~ ~~ -,. > RULE TO FILE COMPLAINT - _ ~-' ~ E ` '? ; _ Kindly issue a Rule on Plaintiffs, Keith L. Avery and Linda Avery, to file a Complaint in the above case within twenty (20) days after service of the Rule. JURY TRIAL DEMANDED Respectfully submitted, Sum ers, McDonnell, Hudock, thr e & Skeel, P.C. ~i~ ~~~ By: i'G' Je~~y C. Catanzarite, Esquire C sel for Defendants NOW, l~Q,~I a8 , 2010, RULE ISSUED AS ABOVE. ~~ Prothonotary/Clerk, ivil Division By: Deputy #17077 r,.t. ,~_..r.,.~.~~ 2a~a~l`a 2z E~ ~~ ~~~~ ,,,~ ;~ ~,, ;, ~~V;,~; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs Civil Action -- Law No.09~98~r- a~ ~~ v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants Jury Trial Demand 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs Civil Action -- Law No.09-ASS a ~7S v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants Jury Trial Demand AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs Civil Action -- Law No.09-0S~~ ~~~5 v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants Jury Tria{ Demand COMPLAINT AND NOW come Plaintiffs, by their undersigned counsel, and respectfully bring us complaint at law, setting forth in support thereof as follows: 1. Plaintiffs, Keith A. Avery and Linda Avery are adult individuals, husband and wife, residing at 2200 Kensington Street, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant Samantha Lynn Kleckner as an adult individual whose present residence and whereabouts are unknown. Her last known residence is 146 Bedford Street, Carlisle, Cumberland County, Pennsylvania. 3. Defendant Paula S. Black is an adult individual residing at 29 Garden Parkway, Carlisle, Cumberland County, Pennsylvania. 4. On or about July 1, 2007, at approximately 5 20 p.m. Defendant Kleckner was driving a 1996 Chevrolet automobile owned by Defendant Black southbound along US Route 11 approaching the intersection Sample Bridge Road, failed to obey a stoplight, went into the intersection, and collided with a 2006 Nissan automobile owned by Plaintiffs and operated by Plaintiff Keith Avery. 5. After the collision, Defendant Kleckner, who had been stopped by the collision, started her vehicle, physically rammed the vehicle of Plaintiffs out of her way, and proceeded down Route 11 only to be stopped down the road by another accident in which she was involved. 6. The aforesaid collision was caused solely by the negligence and willful neglect and deliberate indifference of Defendant Kleckner and that she: A. failed to obey a stoplight; B. operated a vehicle while under the influence of intoxicants, C. failed to take care to be aware of conditions and circumstances existing at the time of the accident, D. operated her vehicle too fast for the conditions then and there existing 6A. The aforesaid collision was also the responsibility of Defendant Paula Black, who negligently entrusted her vehicle to Defendant Kleckner knowing that she was or would be incapable of safe driving. 7. Defendant Kleckner intentionally caused additional damage to P{aintiffs' Nissan automobile when she physically pushed the Nissan aside. 8. Defendant Kleckner intentionally left the scene of the accident. 9. As a result of the accident, Plaintiff Keith Avery suffered injury to his neck and upper back area, causing pain and loss of motion. Said Plaintiff sought medical treatment initially at the emergency room of the Community General Osteopathic Hospital, and was followed by Kline Family Practice in Harrisburg, Pennsylvania. He has also been followed by a family practice group at the Hershey Medical Center, Hershey, Pennsylvania. 10. As a Result of the accident, and Keith Avery has endured pain and suffering, humiliation and loss of enjoyment of life, and will continue to do so in the future. 11. As a result of the accident, Plaintiff Keith Avery has suffered wage losses in the past and will continue to suffer wage losses in the future, in excess of his first party benefits 12. As a result of the accident, Plaintiff Keith Avery has suffered medical losses in the past and will continue to suffer wage losses in the future in excess of his first party benefits. 13. As a result of the accident, Plaintiff Keith Avery has suffered a loss of enjoyment of life in the past and will continue to suffer such in the future. 14. As a result of the accident, Plaintiff Linda Avery and Keith Avery have suffered a loss of consortium. 15. As a result of the accident, Plaintiff suffered property damage to their Nissan automobile. WHEREFORE Plaintiffs respectfully request judgment against Defendants in an amount in excess of the limits for compulsory arbitration in Cumberland County, together with interest, punitive damages, and costs a suit. Date: ~~ ~~~ ~t~ ~~ ~ ~~ Kenneth A. Wise Levin and Wise 27 W. 3rd St Lewistown PA (717) 247-3577 Attorneys for Plaintiff VERIFICATION AND NOW comes the undersigned and, subject to the penalties provided by 18 Pa. C. S. §4904 (unsworn falsification to authorities), deposes and says that the facts set fourth in the foregoing complaint are true and correct to the best of his knowledge, information and belief. DATE: ~ ~ b21 ~ I O eith A~lv~eCry CERTIFICATION OF SERVICE I certify that I am this day serving a true and correct copy of Plaintiffs' Complaint on the following individual by first-class US mail addressed as follows: Jeffrey C. Catanzarite, Esq. Summers McDonnell, Hudock, Guthrie, & Skeel, LLP Gulf Tower, Suite 2400 707 Grant St Pittsburgh, PA 15219 DATE: February 22, 2010 ;j~~?Gli~,~.~~LG' Kenneth A. Wise, Esq. Levin and Wise 27 W. 3rd St Lewistown, PA 17044 (717) 247-3577 Attorneys for Plaintiffs 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, .. ., ,~ ~' _, No. 09-2875 ~ , ;-; "'' _._ `^ ~; Plaintiffs, ' ' t - e~ _`; ~' _ PAULA BLACK'S VERIFICATIOP~TO ~. ANSWER AND NEW MATTER _" _ ~' '<~~ -,-; SAMANTHA LYNN K ECKNER (Jury Trial Demanded) ~ vd and PAULA S. BLAC Defendants. Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 Defendant ve foregoing ANSWER VERIFICATION es that he/she is the Defendant in the foregoing action; that the D NEW MATTER is based upon information which he/she has furnished to his/her counsel and information which has been gathered by his/her counsel in the preparation of tfhe lawsuit. The language of the ANSWER AND NEW MATTER is that of counsel and n t of the Defendant. Defendant has read the ANSWER AND NEW MATTER and to the extent that the ANSWER AND NEW MATTER is based upon information which he/ he has given fo his/her counsel, it is true and correct to the best of his/her knowledge, information and belief. To the extent that the content of the ANSWER AND NEW MATTER s that of counsel, he/she has relied upon counsel in making this Affidavit. Defendant nderstands that false statements herein are made subject to the penalties of 18 Pa.C.S~ §4904, relating to unsworn falsification to authorities. Date: l o ~~ #17077 rawa 5. tt~ack, Uetendant jE CERTIFICATE OF SERVICE I hereby certi y that a true and correct copy of the within Paula Black's Verification to Ans er and New Matter was served upon the following counsel of record on the 14th da of July, 2010, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3~d Street P.O. Box 231 Lewistown, PA 17044-0231 Summers, McDonnell, Hudock, G rie & Skeel, P.C. By: G ~-. J C. Catanzarite, Esquire :I for Defendants 1 !* IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, CIVIL DIVISION No. :09-2$75 Plaintiffs, -vs- SAMANTHA LYNN KLECKNER and PAULA S. BLACK, DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, BRIEF IN SUPPORT AND PROPOSED ORDER OF COURT Defendants. (Jury Trial Demanded) Counsel of Record for Defendant: Jeffrey C. Catanzarite, Esquire Pa. I.D. No. :72765 SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. Firm No. 9ii 707 Grant Street Suite 2400, Gulf Tower Pittsburgh, PA 15219 (4i2) 26i-3232 n ~ =_ , c . ~.- M .~ - _ rv -; t ti ~,- -~, ~ , -- ' _ _ ~. . c ; t ~..; ' 1;; .. C: ; ~~ 17077 i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. :09-2875 Plaintiffs, -vs- SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the defendants, Samantha Lynn Kleckner and Paula S. Black, by and through their attorneys, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. and Jeffrey C. Catanzarite, Esquire, and files the within Motion for Judgment on the Pleadings, and in support thereof avers as follows: i. This case arises out of a motor vehicle accident that occurred on July 1, 200. 2. Plaintiffs have alleged various personal injuries and property damages as a result of the subject accident. 3. Plaintiffs filed a Writ of Summons against the defendants, in the Court of Common Pleas of Cumberland County, on May ~, 2009, less than two (2) months prior to the expiration of the Statute of Limitations. (See Cumberland County Docket for Case Number 2009-02875, a copy of which is attached hereto as Exhibit "A"). 17077 4. Plaintiffs' complaint was not taken to the sheriff s office for service upon the defendant within the thirty (30) days of its filing. In fact, the docket reflects that the Writ still has not been taken to the sheriff s office for service on the defendant. 5. After the filing of the Writ, the docket reflects no activity on the case by the plaintiffs until February of 2oio, over nine (g) months after the Writ was filed. This activity occurred when the plaintiff filed a complaint, in order to comply with the rule issued by the Prothonotary on behalf of the defendant. 6. Defendants were never served with either the Writ of Summons or the Complaint in a manner that would conform with the Pennsylvania Rules of Civil Procedure. (See Cumberland County Docket for Case Number 2009-02875, a copy of which is attached hereto as Exhibit "A"). ~. Pennsylvania Rule of Civil Procedure 4oi states that "[o]riginal process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Pa. R.C.P. 4oi(a). 8. Plaintiffs have failed to comply with Rule 4oi(a) of the Pennsylvania Rules of Civil Procedure. 9. Furthermore, the statute of limitations expired on July i, 2009, and the plaintiffs failed to even attempt service prior to that date. io. The Pennsylvania Supreme Court has ruled that initial filings will toll the Statute of Limitations "only if the Plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Lamp v. Heyman, 366 A.2d 882, 889 (Pa. i9~6). ii. Further, the Supreme Court has indicated that where a Plaintiff has i7o77 "demonstrated an intent to stall the judicial machinery[,]" the Defendant is entitled to have the action dismissed. McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005). 12. In the instant case, Plaintiffs failed to comply with Pennsylvania Rule of Civil Procedure 4oi as he failed to even attempt service within thirty (30) days after filing the Writ of Summons. 13. Furthermore, the plaintiffs violated the statute of limitations when they did not attempt service on the defendant prior to July 1, 2009. i4. Thus, Plaintiffs failed to comply with the Rules of Civil Procedure and demonstrated "an intent to stall the judicial machinery." Additionally, the statute of limitations on this claim has expired. Accordingly, their claims should be dismissed, with prejudice. i5. For the foregoing reasons, the defendants now move for judgment on the pleadings as to the claims of the plaintiffs, Keith Avery and Linda Avery, as plaintiffs' claims for damages' are barred by the statute of limitations. WHEREFORE, Defendants Samantha Lynn Kleckner and Paula S. Black respectfully request that this Honorable Court enter an Order dismissing the above- captioned action, with prejudice. Respectfully submitted, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: l/ `~ C. Catanzarite, Esquire 1 for Defendants 17077 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2$75 Plaintiffs, -vs- SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the defendants, Samantha Lynn Kleckner and Paula S. Black, by and through their attorneys, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. and Jeffrey C. Catanzarite, Esquire, and files the within Brief in Support of Defendants' Motion for Judgment on the Pleadings, and in support thereof avers as follows: I. FACTS The above-captioned litigation arises from a motor vehicle accident that occurred on July 1, 2007 on Route ii in Cumberland County, Pennsylvania. In their complaint, the plaintiffs allege that the accident in question occurred when Defendant Kleckner, while operating Defendant Black's vehicle, failed to obey a stop light and collided with the plaintiffs' vehicle. 170'7'] The plaintiffs filed suit against the defendants, via Writ of Summons, in Cumberland County on May ~, 2009, less than two (2) months before the statute of limitation was set to expire. However, the Writ was not taken to the Cumberland County Sheriff for service on the defendant within thirty (30) days of its filing. (See Cumberland County Docket for Case Number 2009-02875, a copy of which is attached hereto as Exhibit "A"). Further, the docket in this action reflects that the Writ was never taken to the sheriff s office for service on the defendant. Over a year later, after finally obtaining a copy of the plaintiffs' Complaint, which was prompted by Defendants' Rule, Defendants filed an Answer and New Matter in which they raised the statute of limitations as an affirmative defense. (See Defendants' Answer and New Matter, a copy of which is attached hereto as Exhibit "B", at Paragraph i~). II. ANALYSIS A. STANDARD OF REVIEW A Motion for Judgment on the Pleadings may be filed after the relevant pleadings are closed, but within such time as to not unreasonably delay the trial. Pa.R.C.P. io34. When determining whether to grant or deny a Motion for Judgment on the Pleadings, the court must accept as true all well pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. The court "will affirm the grant of such a motion only when the moving parry's right to succeed is certain and the case is so free from doubt that the trial 17077 would clearly be a fruitless exercise." Ritchey v. Patt, 636 A.2d 208, 211 (Pa.Super. 1994)• B. PLAINTIFFS FAILED TO PROPERLY EFFECTUATE SERVICE UPON THE DEFENDANTS WITHIN THE TIME PERIOD PRESCRIBED BY PENNSYLVANIA LAW. CONSEQUENTLY, THIS LITIGATION SHOULD BE DISMISSED, WITH PREJUDICE. The Pennsylvania Supreme Court has ruled that initial filings will toll the Statute of Limitations "only if the Plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Lama v~Heyman, 366 A.2d 882, 88g (Pa.' 196). Further, the Supreme Court has indicated that where a Plaintiff has "demonstrated an intent to stall the judicial machinery[,]" the Defendant is entitled to have the action dismissed. McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005). In the case sub judice, Plaintiffs took no steps to have the Writ of Summons served on the Defendants. The docket for this case mentions no service attempts whatsoever. (See Cumberland County Docket for Case Number 2009-02875, a copy of which is attached hereto as Exhibit "A"). This is in direct contravention of Pennsylvania Rule of Civil Procedure 401, which states that "[o]riginal process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Pa. R.C.P. 4o1(a). The matter currently before this court is similar to one presented to the Supreme Court of Pennsylvania in Farinacci v. Beaver County Industrial Dev. Authority, 511 A.2d 17077 757 (Pa. 1986). In Farinacci, the Plaintiff filed a Writ of Summons against the Defendant on the day before the statute of limitations was set to expire. Thereafter, instead of taking the writ to the sheriff for service, Plaintiffs counsel misplaced the file and forgot to arrange for service before the writ expired. The writ was eventually reissued and was served upon the Defendants nearly two (2) months after the original writ was issued to the Plaintiff. After they were served, Defendants filed preliminary objections claiming that the statute of limitations was not tolled, as Plaintiff had not properly served them under the law of the Commonwealth. The trial court sustained the Defendants' objections and dismissed the action; a decision which was ultimately affirmed by both the Superior Court and the Pennsylvania Supreme Court. In rendering its decision, the Supreme Court noted that a praecipe for writ of summons would toll the limitations period only where Plaintiffs did not engage in conduct that stalled the process. See Farinacci, 511 A.2d at 759. In affirming the dismissal, the Supreme Court found that neglecting the file for more than a month after it was misplaced showed that Plaintiffs' counsel did not meet the good-faith requirement to effectuate notice of the action's commencement. See id at 759 - 60. Certainly the same can be said of the actions of the Plaintiff in the case sub judice, where the file was neglected by the plaintiff for over a year. In the current instance, Plaintiffs filed a Writ against the defendants, and then neglected to take any further action with regards to the case for over nine (9) months. There is no evidence whatsoever that Plaintiffs attempted service of either the Writ, or the subsequently filed Complaint, upon either defendant within thirty (30) days of their filing. To the contrary, the Cumberland County docket for this case mentions no service 17077 attempts at all, and it has now been over fourteen (i4) months since the original Writ was filed. (See Cumberland County Docket for Case Number 2009-02875, a copy of which is attached hereto as Exhibit "A"). Pursuant to the Rules of Civil Procedure, the onus is on the plaintiffs to locate the defendants for proper service. There is no evidence in the case sub judice that the plaintiffs in the current instance have ever attempted to do so. The factual scenario present in this instance is very similar to one examined by the Court of Common Pleas of Allegheny County in Pellasce v. Giant Eagle, et. al., 2006 Pa. D. & C. Dec. LEXIS 248 (C.C.P. Allegheny Co. 2006). In Pellasce, the plaintiff was injured on the defendant's property on January 30, 2003. She filed a Writ of Summons against the defendant on December 23, 2004 but failed to deliver the Writ to the Sheriff for service on the defendants. Thereafter, on February 3, 2005, the plaintiff filed a Praecipe to Reissue Summons. The reissued summons was ultimately served on the defendants on February ~, 2005, eight (8) days after the statue of limitations expired. After the reissued writ was served on the defendants, the plaintiffs filed a complaint. The defendants responded with an answer in which they pled the statute of limitations as a defense. Thereafter, the defendants filed a motion for judgment on the pleadings, asserting that the plaintiff s claims should be dismissed for "failure to effectuate proper service within the applicable State of Limitations." Pellasce, 2006 Pa. D. & C. Dec. LEXIS 248. The Allegheny County trial court, ruling on the defendant's motion, reviewing the decisions set forth by the Supreme Court in McCreesh and Farinacci, noted that "forgetting to attempt to serve is not good faith." Id. This opinion was affirmed, without opinion, by the Pennsylvania Superior Court. Pellasce v. Giant Eagle, et. al., 932 A.2d 2'Jl (Pa. Super. 2000. 17077 C. CONCLUSION Pennsylvania law clearly establishes that it is the responsibility of the Plaintiff to act in good faith in attempting proper service of process under the laws of the Commonwealth. See McCreesh, 888 A.2d at 6~2. This is a determination that is "within the sound discretion of the trial court." Id. Given the above, defendants assert that the plaintiffs have not made any "good faith" service efforts and, consequently, their claims should be dismissed. Further, Plaintiffs have violated the statute of limitations by not attempting service on the defendant prior to July i, 2009. WHEREFORE, Defendants Samantha Lynn Kleckner and Paula S. Black respectfully request that this Honorable Court enter an Order dismissing the above- captioned action, with prejudice, due to their failure to properly effectuate service under the law of the Commonwealth of Pennsylvania. Respectfully submitted, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. ~~ C. Catanzarite, Esquire 1 for Defendants 17077 PYS511. Cumberland County Prothonotary's Office Page 1 Civil Case Print 2009-02875 AVERY KEITH L ET AL {vs) KLECKNER SAMANTHA LYNN ET AL Reference No..: Filed........: 5/07/2009 Case Tyyppe.....: WRIT OF SUMMONS Judgment..... .00 Time. .... Execution Date 2.08 0/00/0000 Judge Assigned: Disposed Desc.: Jury Trial.... Disposed Date. t 1 i h C 0/00/0000 ------------ Case Comments ------------- .: r g er H Higher Crt 2.: ******************************************************************************** General Index Attorney Info AVERY KEITH L PLAINTIFF WISE KENNETH A AVERY LINDA PLAINTIFF WISE KENNETH A KLECKNER SAMANTHA LYNN DEFENDANT CATANZARITE JEFFREY C 146 BEDFORD ST CARLISLE PA 17013 BLACK PAULA S DEFENDANT CATANZARITE JEFFREY C 29 GARDEN PARKWAY CARLISLE PA 17013 ******************************************************************************** * Date Entries * ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 5/07/2009 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED - BY KENNETH A WISE ATTY FOR PLFF ------------------------------------------------------------------- 5/20/2009 PRAECIPE FOR APPEARANCE FOR DEFTS - BY JEFFREY C CTANZARITE ESQ ------------------------------------------------------------------- 1/28/2010 PRAECIPE FOR RULE TO FILE COMPLAINT - BY JEFFREY C CATANZARITE ATTY FOR DEFTS ------------------------------------------------------------------- 1/28/2010 RULE TO FILE COMPLAINT - BY DAVID D BUELL PROTHONOTARY ------------------------------------------------------------------- 2/22/2010 COMPLAINT - BY KENNETH A WISE ATTY FOR PLFF ------------------------------------------------------------------- 5/24/2010 ANSWER AND NEW MATTER - BY JEFFREY C CATANZARITE ATTY FOR DEFTS - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq Bal Pmts/Ad~ End Bal ******************************** ******** ****** ******************************* WRIT OF SUMMONS 55.00 55.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 -- 10.00 --------- --- .00 --------- ------------- 78.50 78.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** . •' • • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plaintiffs, v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, ANSWER AND NEW MATTER (Jury Trial Demanded) Defendants. Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I . D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 TO: PLAINTIFFS: You are hereby notified to file a written response to the encbsed Answer and New Matter within twenty (20) days ce hereof or a gm maybe entered 17077 !, 1. • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plaintiffs, v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. ANSWER AND NEW MATTER Defendants, Samantha Lynn Kleckner and Paula S. Black, by and through their attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and Jeffrey C. Catanzarite, Esquire, file the following Answer and New Matter: . I. ANSWER 1. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 1 and therefore, said allegations are denied and strict proof thereof is demanded at the time of trial. 2. Denied. To the contrary, Defendant, Samantha Lynn Kleckner, currently resides at 429 Strathaven Court, Newark, Delaware 19702. 3. Admitted. 1 •` ~ • • 4. The allegations of Paragraph 4 are denied pursuant to Rule 1029(d) and (3) of the Pennsylvania Rules of Civil Procedure. 5. The allegations of Paragraph 5 are denied pursuant to Rule 1029(d) and (3) of the Pennsylvania Rules of Civil Procedure. 6. The allegations of Paragraph 6 and its subparts are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 6A. The allegations of Paragraph 6A are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 7. The allegations of Paragraph 7 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 8. The allegations of Paragraph 8 are denied pursuant to Rule 1029(d) and (3) of the Pennsylvania Rules of Civil Procedure. 9. The allegations of Paragraph 9 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. ~ • i ~ • 10. The allegations of Paragraph 10 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 11. The allegations of Paragraph 11 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 12. The allegations of Paragraph 12 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 13. The allegations of Paragraph 13 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 14. The allegations of Paragraph 14 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. 15. The allegations of Paragraph 15 are conclusions of law to which no response is required. To the extent that a response is necessary, said averments are • ' •, ' • • generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants, Samantha Lynn Kleckner and Paula S. Black, demand judgment in their favor. II. NEW MATTER 16. Paragraphs 1 through 15 are herein incorporated by reference. 17. The Plaintiffs' claims are barred by the applicable statute of limitations. 18. The Plaintiffs' claims are subject to the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law and the Defendants assert as an affirmative defense all rights, privileges and/or immunities accruing pursuant to said statute. WHEREFORE, Defendants, Samantha Lynn Kleckner and Paula S. Black, demand- judgment in their favor. JURY TRIAL DEMANDED Respectfully submitted, Summers, McDonnell, Hudock, ,Av~hrie & Skeel, P.C. By: ~6/6~ G~ / / Jey C. Catan~arite, Esquire C nsel for Defendants • ~ • , • • • VERIFICATION Defendant verifies that he/she is the Defendant in the foregoing action; that the foregoing ANSWER AND NEW MATTER is based upon information which he/she has furnished to his/her counsel and information which has been gathered by his/her counsel in the preparation of the lawsuit. The language of the ANSWER AND NEW MATTER is that of counsel and not of the Defendant. Defendant has read the ANSWER AND NEW MATTER and to the extent that the ANSWER AND NEW MATTER is based upon information which he/she has given to his/her counsel, it is true and correct to the best of his/her knowledge, information and belief. To the extent that the content of the ANSWER AND NEW MATTER is that of counsel, he/she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date:. #1707 ~ ••~ • • • VERIFIED STATEMENT I, Jeffrey C. Catanzarite, Esquire, being the attorney for Defendant, Paula S. Black, in the within action„ am duly authorized to make this Verged Statement on the defendant's behalf. I hereby verify that the statements set forth in the foregoing ANSWER AND NEW MATTER are true and correct to the best of my information and belief based upon knowledge obtained from the defendant. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsifications to authorities. C. Catanzarite, Esquire DATED: May 20, 2010 r V ' , • CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Answer and New Matter was served upon the following counsel of record on the 20~' day of May, 2010, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3~d Street P.O. Box 231 Lewistown, PA 17044-0231 McDonnell, Hudock, & Skeel, P.C. By: Je~Frey C: Catanzarite, Esquire unsel for Defendants .~ M ~ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Motion for Judgment on the Pleadings, Brief in Support and Proposed Order of Court was served upon counsel of record by mailing the same via first class mail, postage pre- paid, this loth day of July, 2oio, addressed as follows: Kenneth A. Wise, Esquire THE LAW OFFICES OF ALLEN J. LEVEN & KENNETH A. WISE 2'J West 3rd Street P.O. Box 231 Lewistown, PA i~o44-o23i (Counsel for Plaintiffs) SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: . Catanzarite, Esquire for Defendants 17077 ~ n ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, CIVIL DIVISION No. 09-2875 Plaintiffs, -vs- SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. ORDER OF COURT AND NOW, to wit, this day of 2010, it is hereby ORDERED, ADJUDGED and DECREED, that Defendants' Motion for Judgment on the Pleadings is GRANTED. Cumberland County Docket Number 2009-02875 is hereby dismissed, in its entirety, with prejudice. BY THE COURT: J. 17077 cry/~~. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter forQ~tae n~ - =r Argument Court.) ~:' `~ _.:. ~a i-x. c._. --,_ ------------------------------------------------------------------------------------------------------------------~o,,,: ~ ~~ ~_ -n CAPTION OF CASE r" ~ ' ' r` Y-' ~ , (entire caption must be stated in full) ~~ ~` ~ ~-r Keith L. Avery and Linda Avery, ~ -. -~ ~.. -' - -,.:: t- -•c. Samantha Lynn Kleckner and Paula S. Black ~ ~ ~ "~}`~ No. 02875 2009 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defend•~nts' Motion for Judgment on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: Kenneth A. Wise, Esquire, 27 West 3rd Street, P.O. Box 231, Lewistown, PA 17044 (Name and Address) (b) for defendants: Jeffrey C. Catanzarite, Esquire, 707 Grant Street, Suite 2400, Gulf Tower, Pittsburgh, PA 15219 (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: August 18, 2010, time to be determined at a later date. Signature Jeffrey C Catanzarite, Esquire Date: ~~Ly ZO, LOIO Print your na Defendants ~~~ l/,~ Attorney fo 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. I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants Civil Action -- Law A6 A No.09675 CZZ) w c.. Jury Trial Demanded v ti REPLY OF PLAINTIFFS TO DEFENDANTS' MOTION FOR JUDGMENT' ON THE PLEADINGS AND NOW come Plaintiffs, by their undersigned counsel, and respectfully makes the following Reply to Defendants' Motion for Judgment on the Pleadings, and set forth in support thereof as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted with explanation. The present address and whereabouts of both Defendants were unknown at the time of the writ of summons was issued. Plaintiffs' counsel, by letter dated April 30, 2009 to the carrier, Safe Auto, asked for the present addresses of both Defendants. No response was forthcoming. On May 8, 2009, counsel for Plaintiffs, who had learned front the Cumberland County probation office that Defendant Kleckner had an address in New Castle, who Delaware, attempted service of process by certified mail. The postal return receipt card was returned without the purported signature of Defendant Kleckner. On May 14, 2009 counsel for Plaintiffs communicated by letter with Delaware Attorney Services of Wilmington, Delaware requesting service of process on Defendant Kleckner at her New Castle, Delaware address. 5. Admitted that the dockets may show no activity from the time of issuance of the summons to the time of Defendants rule to file a complaint. However, there was ongoing discovery activity not reflected on the dockets. The record reflects correspondence from counsel for Defendants dated May 18, 2009, May 28, 2009, June 22, 2009, July 23, 2009, August 10, 2009, September 14, 2009, another dated September 14, 2009, October 14, 2009, December 10, 2009, January 13, 2010, During this time, plaintiffs gave to Defendants, through counsel, medical records from Community General Osteopathic Hospital, Kline Family Practice, Hershey Medical Center, and Madeira Chiropractic. On December 10, 2009, counsel for Defendants served counsel for Plaintiffs with a formal request for production of documents. This has been followed by formal written interrogatories served this past May. 6. Denied. To the contrary, confirmation of nonconforming process can be cured by consent or waiver of the defect, both of which is the case herein. 7. The Rule speaks for itself. 8. Denied as stated. Any deficiency in the failure to comply has been removed by waiver and consent. 2 9. Denied. See paragraph 4 of this reply. 10. This is an allegation of law for which no response is necessary. To the extent a reply is necessary, the allegation is denied. 11. This is an allegation of law for which no response is necessary. To the extent a reply is necessary, the allegation is denied. 12. Denied. See paragraph 4 of this reply. 13. Denied. See paragraph 4 of this reply. 14. This is an allegation of law for which no response is necessary. To the extent a reply is necessary, the allegation is denied. 15. Denied. To the contrary, Defendants waived all defects in service of process by failing to raise the issue in preliminary objections and in new matter. WHEREFORE Plaintiffs respectfully request that Defendants' Motion for Judgment on the Pleadings be denied as waived, or in the alternative that Defendants' motion be denied on the basis of consent. Date: August 13, 2010 / ?64?J/ate Kenneth A. Wise, Esquire ID No. 16142 Levin and Wise 27 West Third Street P. O. Box 231 Lewistown, PA 17044 (717) 247-3577 Attorneys for Plaintiffs 3 CERTIFICATION OF SERVICE I certify that I am this day serving a true and correct copy of the foregoing Reply of Plaintiffs to Defendants' Motion for Judgment on the Pleadings on the following individuals by first-class US mail, addressed as follows: Jeffrey C. Catanzarite, Esq. Summers McDonnell, Hudock, Guthrie, & Skeel, LLP Gulf Tower, Suite 2400 707 Grant St Pittsburgh, PA 15219 DATE: August 13, 2010 Kenneth A. Wise, Esq. Levin and Wise 27 W. 3rd St Lewistown, PA 17044 (717) 247-3577 Attorneys for Plaintiffs 4 f 2u13 u I ?,o+cr?UG l3 CAM Sl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs, V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. CIVIL DIVISION No. 09-2875 AFFIDAVIT OF SERVICE OF LISTING FOR ARGUMENT (Jury Trial Demanded) Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plaintiffs, v SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. AFFIDAVIT OF SERVICE OF LISTING FOR ARGUMENT I, Jeffrey C. Catanzarite, Esquire, counsel for Defendants, Samantha Lynn Kleckner and Paula S. Black, notified counsel for Plaintiffs, Keith L. Avery and Linda Avery, of the date of the argument, August 18, 2010, on the Defend'ants' Motion for Judgment on the Pleadings in the above-captioned matter. JURY TRIAL DEMANDED Respectfully submitted, Summers, McDonnell, Hudock, hrle.& Skeel, P.C. Z G? By: J y C. Catanzarite, Esquire ounsel for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Affidavit of Service of Listing for Argument was served upon the following counsel of record on the 9th day of August 2010, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 irs, McDonnell, Hudock, He & Skeel, P.C. By: Jeffpy C. Catanzarite, Esquire Co Ansel for Defendants KEITH AVERY AND LINDA IN THE COURT OF COMMON PLEAS OF AVERY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTIO - LAW vs. NO. 09-2875 CIVIL SAMANTHA LYNN KLECKNER AND PAULA S. BLACK, Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J., OLER AND MASLAND J.J. ORDER AND NOW, this S r day of September, 2010, it appearing that the defendants had actual notice of the captioned law suit prior to the expiration of the Statute of Limitations and have not demonstrated any prejudice in connection with the defect in service in this case, the motion of the defendants for judgment on the pleadings is DENIED. See McCreesh v. City of Philadelphia, 888 A.2d 664, 667 (Pa. 2005). BY THE COURT, ?Kenneth A. Wise, Esquire For the Plaintiffs -Jeffrey C. Catanzarite, Esquire For the Defendants rlm (20 f I le-S 91{(./fr(0 L I/ -? iz' Kevin A/ Hess, P. J. rnfr _ ?? i? ter; ?: 'r? `l !? J7 gI~,EI?-Q~~'tC~ F Tr+~ ~'e~O fHONOTARY . ... i 1 4... .~-'~ `~`'~' ~! '~' ~-~~? G~iU~~TY i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs, v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. CIVIL DIVISION No. 09-2875 MOTION TO COMPEL (Jury Trial Demanded) Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plaintiffs, v. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. MOTION TO COMPEL Defendants, Samantha Lynn Kleckner and Paula S. Black, by and through their attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and Jeffrey C. Catanzarite, Esquire, set forth the following Motion to Compel and in support thereof avers as follows: 1. The instant case arises out of personal injuries claimed to have been sustained at the time of a motor vehicle accident on July 1, 2007. 2. On December 10, 2009, the Defendants served Plaintiffs with a Request for Production of Documents. A true and correct copy of the December 10, 2009 correspondence is attached hereto as Exhibit "A". 3. On May 29, 2010, the Defendants served Plaintiffs with Interrogatories. A true and correct copy of the May 20, 2010 correspondence is attached hereto as Exhibit "B". 4. On January 13, 2010, defense counsel requested the Plaintiffs' overdue response to the Defendants' Request for Production of Documents. A true and correct copy of the January 13, 2010 correspondence is attached hereto as Exhibit "C". 5. On September 23, 2010, counsel for the Plaintiffs was advised that the Plaintiffs' Interrogatory answers were overdue and, again, that the Response to Request for Production of Documents had not yet been received. A true and correct copy of the September 23, 2010 correspondence is attached hereto as Exhibit "D". 6. On October 12, 2010, Defendants' counsel sent his most recent letter to counsel for the Plaintiffs requesting the overdue Answers to Interrogatories and Response to Request for Production of Documents. A true and correct copy of the October 12, 2010 correspondence is attached hereto as Exhibit "E". 7. As of this date, Defendants' counsel has not received the Plaintiffs' discovery responses. The Response to Request for Production of Documents is over nine months overdue and the Answers to Interrogatories are approximately four months overdue. 8. Judge Hess has previously ruled upon a Motion for Judgment on the Pleadings filed by the Defendants based upon an allegation of the Plaintiffs' failure to comply with the statute of limitations and applicable service rules. WHEREFORE, Defendants, Samantha Lynn Kleckner and Paula S. Black, respectfully request that this Honorable Court Order that the Plaintiffs provide complete responses to the Defendants' Interrogatories and Request for Production of Documents within ten (10) days of the date of the Order. JURY TRIAL DEMANDED Respectfully submitted, Summers, McDonnell, Hudock, ~(~yuthri~ & Skeel, P.C. By: `--f/t/ ~~ Je ey C. Ca~anzarite, Esquire C nsel for Defendants SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. ATTORNEYS AT LAW STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A. HUDOCK, JR. GREGG A. GUTHRIE PETER B. SKEEL PATRICK M. CONNELLY~ JEFFREY C. CATANZARITE ~AL50 ADMITTED IN W V PITTSBURGH OFFICE: GULF TOWER, SUITE 2400 707 GRANT STREET PITTSBURGH, PA 15219 PHONE 412-261-3232 FAX 412-261-3239 December 10, 2009 Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 JASON A. HINES KEVIN D. RAUCH ERIN M. BRAUN Gut/ E. BLA55 MARK J. GOLEN ROBERT J. FISHER, JR. KIMBERLY L. GALLUCCI~`~ JOHN A. LUCY SETH T. BLACK••• ETHAN K. STONE MATTHEW RIDLEY C ANDACE N. EDGAR DANA F BUTIA JULIA A. PHILLIPS GARTH A. GARTIN DANIEL J. SAMMEL MICAH T. SAUL ~~AL50 ADMITTED IN OH ~~~ALSO ADMITTED IN NJ In Re: Keith L. Avery and Linda Avert/ v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: On November 16, 2009, I forwarded correspondence to you requesting that you contact me so that we can discuss whether the Plaintiffs ever attempted service on the Defendants in this case. If not, I believe that there may be a problem with-the statute of limitations. Safe Auto Insurance Company will not be considering any demand for settlement until this issue is resolved. Additionally, I have been requesting copies of the Plaintiffs records concerning his treatment with Dr. Naides and Dr. Kwok, as well as his medical records from his family physician from 10 years prior to the date of the subject accident, chiropractor and orthopedic doctor, for the last three months. Despite this, I have not received them. As a result, I have enclosed a Request for Production of Documents directed to the Plaintiff in this case. Kindly provide a complete response to this discovery request within the time period specified in the Pennsylvania Rules of Civil Procedure. In the event that I do not receive the records requested within that time period, I will pursue filing an appropriate motion with the Court. JCC/pk Enclosure .~ Catanzarite 1~~'~ ~~~ HARRISBURG OFFICE: loo STERLING PARKWAY, SUITE 306, MECHANICSBURG, PA 17050 P HONES 777901-5916 FAX: 717-920-9129 SUMMERS, MCDONNELL, GUTHRIE & SKEEL, ATTORNEYS AT LAW STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A. HUDOCK, JR. G REGG A. GUTHRIE PETER B. SKEEL PATRICK M. CONNELLV~ JEFFREY C. CATANZARITE ALSO ADMITTED IN W V Kenneth A. Wise, Esquire The Law Offices of Allen J 27 West 3~d Street P.O. Box 231 PITTSBURGH OFFICE: GULF TOWER, SUITE 2400 707 GRANT STREET PITTSBURGH, PA 15219 PHONE 412-261-3232 FAX 412-261-3239 May 20, 2010 Leven & Kenneth A. Wise Lewistown, PA 17044-0231 JASON A. HINES KEVIN D. RAUCH ERIN M..BRAUN GuY E. BLASS MARK J. GOLEN ROBERT J. FISHER, JR. KIMBERLY L. GALLUCCI~~ JOHN A. LUCY SETH T. BLACK" ETHAN K. STONE MATTHEW RIDLEY CANDACE N. EDGAR DANA F BUTIA JULIA A. PHILLIPS G ARTH A. GARTIN DANIEL J. SAMMEL MICAH T SAVL ~~AL50 ADMITTED IN OH ~~~ALSO ADMITTED IN NJ In Re: Keith L. Avery and Linda Avert/ v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: Enclosed please find the Defendants' Interrogatories Directed to the Plaintiff,.. Keith L. Avery, in the above-referenced matter. Kindly provide a response to these discovery requests pursuant to the Pennsylvania Rules of Civil Procedure. If you have any questions or concerns, please do not hesitate to contact me. n erely, t~/ ~ v \ effrey C. Catanzarite JCC/pk Enclosure Ey~'~,~ g H UDOCK, P.C. HARRISBURG OFFICE: 100 STERLING PARKWAY, SUITE 306, MECHANIGSBURG, PA 77050 PHONE: 7 7 7-901-5916 FAX: 717-920-9 7 29 SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. ATTORNEYS AT LAW STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A. HUDOCK, JR. GREGG A. GUTHRIE PETER B. SKEEL PATRICK M. CONNELLY~ JEFFREY C. CATANZARITE JASON A. HINES KEVIN D. RAUCH ERIN M. BRAUN GUY E. GLASS MARK J. GOLEN ROBERT J. FISHER. JR. KIMBERLY L. GALLUCCI~~ JOHN A. Lucr SETH T BLACK••• ETHAN K. STONE MATTHEW RIDLEY CANDACE N. EDGAR DANA F BUTIA JULIA A. PHILLIPS GARTH A. GARTIN DANIEL J. SAMMEL MIGAH T SADL ALSO ADMITTED IN W V PITTSBURGH OFFICE: GULF TOWER, SUITE 2400 707 GRANT STREET PITTSBURGH, PA 15279 PHONE 412-261-3232 FAX 412-261-3239 January 13, 2010 Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3~d Street P.O. Box 231 Lewistown, PA 17044-0231 '~~ALSO ADMITTED IN OH ~x~AL50 ADMITTED IN NJ In Re: Keith L. Avery and Linda Avery v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: As I have indicated in previous correspondence, an issue has certainly arisen in this case as to the statute of limitations. In my discussions with the Sheriffs Department, no attempt at serving either of the Defendants was made within two years after the date of this accident. Accordingly, Safe Auto is taking the position at this time that the Plaintiffs' claims are barred by the applicable statute of limitations. If you have any additional information with reference to this issue, please let me know. In the event that I do not hear from you within 10 days of the date of this correspondence, (will be filing a Praecipe for Rule to File Complaint to force the Plaintiffs to file a Complaint in this case. I will then file an Answer and allege the statute of limitations as a defense so that I can move forward with a Motion for Judgment on the Pleadings. In the meantime, in the event that we will be continuing with the litigation of this case, I would like to advise you that the Plaintiffs' Response to the Defendants' Request for Production of Documents is overdue. Kindly provide a response to these discovery requests in the near future. I look forward to hearing from you. in¢erely, r ~~ ey C. Catanzarite ~ b~~ ~~ JCC/pk r , HARRISBURG OFFICE: EcHANlcseuRG, PA 17oso HONE 717- E AX 717.920-9129 SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. ATTORNEYS AT LAW STEPHEN J. SUMMERS PITTSBURGH OFFICE: JASON A. HINES THOMAS A. MCDONNELL GULF TOWER SUITE 2400 KEVIN D. RAUCH JOSEPH A. HUDOCK, JR. , 707 GRANT STREET ERIN M. BRAUN GREGG A. GUTHRIE GuY E. BLA55 PETER B. SKEEL PITTSBURGH, PA 15219 MARK J. GOLEN PATRICK M. CONNELLV~ PHONE 412-261-3232 ROBERT J. FISHER, JR. JEFFREY C. CATANZARITE FAX 412-261-3239 KIMBERLY L. GALLUCCI~~ JOHN A. LUCY ~AL50 ADMITTED IN W V SETH T BLACK" September 23, 2010 MATTHEW RIDOEv CANDACE N. EDGAR DANA F BUTIA JULIA A. PHILLIPS GARTH A. GARTIN DANIEL J. SAMMEL Kenneth A. Wise, Esquire MICAH T SAUL The Law Offices of Allen J. Leven & Kenneth A. Wise rd ~"`AL50 ADMITTED IN OH Street 27 West 3 ~~~AL50 ADMITTED IN NJ P.O. Box 231 Lewistown, PA 17044-0231 In Re: Keith L. Avery and Linda Avery v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: The Defendants' Request for Production of Documents was served on the Plaintiff on December 10; -2009. The Defendants' Interrogatories were served on the Plaintiff on May 20, 2010. Despite this, I have not received a response to these discovery requests. I request that you forward a response to these discovery requests in the very near future. in erely, ~ ~~ " G% effrey C. Catanzarite JCC/pk ~I ~~1/ ~~ HARRISBU SUITE 306, MEDHANIC9BURG, PA 17050 PHONE' 71?-901-5916 FAX: 717-920-9129 SUMMERS, MCDONNELL, GUTHRIE & SKEEL, ATTORNEYS AT LAW STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A. HUDOGK, JR. GREGG A. GUTHRIE PETER B. SKEEL PATRICK M. CONNELLY* JEFFREY C. CATANZARITE *ALSO ADMITTED IN W V Kenneth A. Wise, Esquire The Law Offices of Allen J 27 West 3rd Street P.O. Box 231 HUDOCK, P.C. PITTSBURGH OFFICE: JASON A. HINES GULF TOWER, SUITE 2400 KEVIN D. RAUCH 707 GRANT STREET ERIN M. BRAUN PITTSBURGH PA 15219 Guv E. BLASS , MARK J. GOLEN PHONE 412261-3232 ROBERT J. FISHER, JR. FAX 412-261-3239 1<IMBERLV L. GALLUCCI** JOHN A. Lucv SETH T BLACK••• ETHAN K. STONE MATTHEW RIDLEY October 12 2010 CANDACE N. EDGAR f DANA F BUTIA JULIA A. PHILLIPS GARTH A. GARTIN DANIEL J. SAMMEL MICAH T. SAVL Leven & Kenneth A. Wise **ALSO ADMITTED IN OH ***ALSO ADMITTED IN NJ Lewistown, PA 17044-0231 In Re: Keith L. Avery and Linda Avery v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: I have been very patient in waiting for the Plaintiffs Answers and Response to the Defendants' Interrogatories and Request for Production of Documents in this. case.- - The Response to Request for Production of Documents is nine months overdue and the Answers to Interrogatories are three and one-half months overdue. In the event that I do not receive them in the very near future, I will have no choice but to file a motion with the Court. In order to avoid the time and expense of this, I would appreciate you forwarding the outstanding discovery responses. Si e ly, effrey C. Catanzarite JCC/pk ~,~I~ ~~ Y/ HARRISBURG OFFICE: 100 STERLING PARKWAY, SUITE 306, MECHANICSBURG, PA 17050 PHONE: 717-901-5916 FAX: 717-920-9129 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Motion to Compel was served upon the following counsel of record on the 1St day of November, 2010, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3`d Street P.O. Box 231 Lewistown, PA 17044-0231 Su rs, McDonnell, Hudock, uth ie & Skeel, P.C. By: Jeffr C! Catanzarite, Esquire Co el for Defendants KEITH AVERY AND LINDA. AVERY, Plaintiffs vs. SAMANTHA LYNN KLECKNER ULA S BLACK IN THE COURT OF COMM CUMBERLAND COUNTY,. CIVIL ACTIO - LAW NO. 09-2875 CIVIL PLEAS OF 1NSYLVANIA AND PA , Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION TO COMPEL ORDER AND NOW, this 5' { day of November, 2010, a rule is issued on the plaintiffs to show cause why the relief requested in the within motion ought not to b granted. This rule returnable twenty (20) days after service. BY THE COURT, Kev' A. Hess, P. COZ t`es rna tLL rtf s??v F'F r: M o" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Civil Action -- Law Plaintiffs C3 No.09 875 V. AM n rn- SAMANTHA LYNN KLECKNER and ?> PAULA S. BLACK, `< ° Defendants Jury Trial Demanded xYo 5;c= N rrl PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND NOW come Plaintiffs, by their undersigned counsel, and respectfully bring this Motion to Compel Discovery, setting forth in support thereof as follows: 1. Movants herein are Plaintiffs. 2. Respondents herein are Defendants. 3. This is a motion by Plaintiffs to compel Defendants, to answer and serve on Plaintiffs their answers to written interrogatories and a request for production of documents which have been served on Defendant's under cover of a letter dated June 4, 2010. A copy of this letter is attached hereto as Exhibit "A" and incorporated by reference herein. 4. The aforesaid written interrogatories and Request for Production of Documents are not burdensome, and are relevant for discovery purposes. 5. Defendants have not responded in any manner to the aforesaid discovery. Defendants have not filed any objections or responses, nor have they provided any informal discovery. 6. The time for filing responses to the aforesaid discovery requests has passed. 7. Defendants have not requested any additional time to provide the aforesaid discovery, nor has there been any general enlargement of discovery allowed by Plaintiffs. WHEREFORE Plaintiffs respectfully request an order of this court directing Defendants to promptly file answers to the discovery requests set forth in the aforesaid Written Interrogatories and Request for Production of Documents under penalty of contempt of this Court. Date: November 12, 2010 Xcf? /? WA?' Kenneth A. Wise Levin and Wise 27 W. 3rd St Lewistown PA (717) 247-3577 Attorneys for Plaintiffs LAW OFFICES ALLEN J. LEVIN & KENNETH A. WISE 27 West Third Street Post Office Box 231 Lewistown, Pennsylvania 17044-0231 (717) 247-3577 FAX (717) 247-3581 June 4, 2010 Jeffrey C. Catanzarite, Esq. Summers McDonnell, Hudock, Guthrie, & Skeel, LLP Gulf Tower, Suite 2400 707 Grant St Pittsburgh, PA 15219 RE: Avery v. Kleckner and Black Cumberland County PA No. 09-875 Dear Jeffrey: Enclosed please find an original one copy each of Plaintiffs' Request For Production of Documents, and Plaintiffs' Interrogatories. Sincerely, Kenneth A. Wise Enclosures C: Mr. and Mrs. Keith Avery u CERTIFICATION OF SERVICE I certify that I am this day serving a true and correct copy of Plaintiffs' Motion to Compel Discovery on the following individual by first-class US mail addressed as follows: Jeffrey C. Catanzarite, Esq. Summers McDonnell, Hudock, Guthrie, & Skeel, LLP Gulf Tower, Suite 2400 707 Grant St Pittsburgh, PA 15219 DATE: November 12, 2010 A- Kenneth A. Wise, Esq. Levin and Wise 27 W. 3rd St Lewistown, PA 17044 (717) 247-3577 Attorneys for Plaintiffs S FILED-OFFICE OF THE PROTHOI'?OTARV 2010 NOV 22 PM 12: 2.7 COMBEnLA t'0 COUNT'i PENNSYLWA [illA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs, V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. CIVIL DIVISION No. 09-2875 DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO COMPEL (Jury Trial Demanded) Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I. D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plaintiffs, V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO COMPEL Defendants, Samantha Lynn Kleckner and Paula S. Black, by and through their attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and Jeffrey C. Catanzarite, Esquire, file the following Defendants' Response to Plaintiffs' Motion to Compel and aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. To the contrary, the Defendants' Response to Plaintiffs' Request for Production of Documents was served on the Plaintiffs on November 19, 2010 by regular mail. Defense counsel admits that the Answers to Interrogatories have not been provided. 6. Denied. To the contrary, based upon the fact that it took the Plaintiffs approximately six months to provide Answers and a Response to the Defendants' Interrogatories and Request for Production of Documents and, based upon the fact that those discovery responses are still incomplete, the Defendants believe that the time for filing any responses to the Plaintiffs' discovery requests has not passed. 7. It is admitted that the Defendants have not requested any additional time to provide the discovery responses. By way of further answer, no demand for the discovery responses was ever made by the Plaintiffs in this case. The Defendants do request an extension of time within which to provide Answers to the Plaintiffs' Interrogatories due to the fact that Samantha Kleckner, the driver of the Defendants' vehicle, has moved and defense counsel has not been able to locate her. WHEREFORE, the Defendants respectfully request this Court to deny the Plaintiffs' Motion to Compel in this case and issue the attached Order granting the Defendants ninety (90) additional days to provide the Answers to Interrogatories. JURY TRIAL DEMANDED Respectfully submitted, Sum s, McDonnell, Hudock, uthr &Skeel, P.C. By: v _ Je e C. Catanzarite, Esquire C sel for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Defendants' Response to Plaintiffs' Motion to Compel was served upon the following counsel of record on the 19th day of November, 2010, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 By: McDonnell, Hudock, //&//Skeel, P.C. /'XZIII-) Jeffr C. Catanzarite, Esquire Co sel for Defendants o 1 1 ^ IIJJ x A n ? ?.t 1.1?1tr;? _o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Plaintiffs, V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. CIVIL DIVISION No. 09-2875 SECOND MOTION TO COMPEL (Jury Trial Demanded) Filed on Behalf of Defendants Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #72765 Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. Firm No. 911 Suite 2400, The Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #17077 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and CIVIL DIVISION LINDA AVERY, No. 09-2875 Plaintiffs, V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. SECOND MOTION TO COMPEL Defendants, Samantha Lynn Kleckner and Paula S. Black, by and through their attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and Jeffrey C. Catanzarite, Esquire, set forth the following Second Motion to Compel and in support thereof aver as follows: 1. The instant case arises out of personal injuries claimed to have been sustained at the time of a motor vehicle accident on July 1, 2007. 2. After the filing of a Motion to Compel by the Defendants directed to the Plaintiffs, the Plaintiffs forwarded Answers to the Defendants' Interrogatories and a Response to their Request for Production of Documents in November of 2010. 3. Despite forwarding the appropriate discovery responses, the Plaintiffs did not provide all of the Plaintiffs relevant medical records. 4. On November 17, 2010, defense counsel forwarded to Plaintiffs' counsel seven authorizations for the release of the Plaintiffs outstanding medical records, as well as authorizations for the release of his employment records and first-party benefits file. 5. The Plaintiff also failed to provide a copy of his tax returns for the years 2002 to the present as requested in the original Request for Production of Documents. 6. On December 13, 2010, defense counsel sent correspondence to Plaintiffs' counsel reminding him that the nine authorizations for the release of the appropriate records had not been forwarded and that the Defendants had not received the appropriate tax returns. A true and correct copy of this correspondence is attached hereto as Exhibit "1 ". Defense counsel received no response to this request. 7. On January 3, 2011, defense counsel sent another correspondence to Plaintiffs' counsel again requesting the executed authorizations for the release of the Plaintiffs outstanding records and the tax returns. A true and correct copy of the January 3, 2011 correspondence is attached hereto as Exhibit "2". Again, defense counsel received no response to this request. 8. As of this date, Defendants' counsel has not received the Plaintiffs executed authorizations or records from the providers listed on the authorizations. Defense counsel has also not received the tax returns as originally requested in the Request for Production of Documents. 9. Judge Hess has previously ruled upon a Motion for Judgment on the Pleadings filed by the Defendants based upon an allegation of the Plaintiffs' failure to comply with the statute of limitations and applicable service rules. WHEREFORE, Defendants, Samantha Lynn Kleckner and Paula S. Black, respectfully request that this Honorable Court Order that the Plaintiffs provide the nine (9) outstanding executed authorizations, or records pursuant to the authorizations, as well as the requested tax returns within ten (10) days of the date of the Order. JURY TRIAL DEMANDED By: Respectfully submitted, Summers, McDonnell, Hudock, /i(§-u)hrie & Skeel, P.C. C. Catanzarite, Esquire sel for Defendants SUMMERS, MCDONNELL, GUTHRIE & SKEEL, ATTORNEYS AT LAW STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A. HUDOCK, JR. GREGG A. GUTHRIE PETER B. SKEEL PATRICK M. CONNELLY* JEFFREY C. CATANZARITE ALSO ADMITTED IN WV Kenneth A. Wise, Esquire The Law Offices of Allen J 27 West 3rd Street P.O. Box 231 PITTSBURGH OFFICE: GULF TOWER, SUITE 2400 707 GRANT STREET PITTSBURGH, PA 15219 PHONE 412-261-3232 FAX 412-261-3239 December 13, 2010 Leven & Kenneth A. Wise Lewistown, PA 17044-0231 JASON A. HINES KEVIN D. RAUCH ERIN M. BRAUN GUY E. BLASS MARK J. GOLEN ROBERT J. FISHER, JR. KIMBERLY L. GALLUCCI- JOHN A. LUCY SETH T. BLACK... ETHAN K. STONE MATTHEW RIDLEY CANDACE N. EDGAR DANA F BUTIA JULIA A. PHILLIPS GARTH A. GARTIN DANIEL J. SAMMEL MICAH T. SAUL ALSO ADMITTED IN OH ALSO ADMITTED IN NJ In Re: Keith L Avery and Linda Avery v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: On November 17, 2010, 1 forwarded to you nine authorizations for the release of the Plaintiffs outstanding records in this case. I asked at that time that the Plaintiff provide the first name and address for the doctors on the authorizations which require them and to sign and return the authorizations. Kindly advise as to when I should expect to receive the executed authorizations. Additionally, in the event that the Plaintiff is going to assert a claim for past lost wages or loss of future earning capacity, I request that the Plaintiff provide the tax returns as requested in the Request for Production of Documents. Lastly, I previously requested to take the deposition of Keith Avery and for you to provide me with some dates in December or January on which both of you would be available. Please forward dates in January and February at your earliest opportunity. Si rely, ?V rey C. Catanzarite JCC/pk HARRISBURG OFFICE: 100 STERLING PARKWAY, SUITE 306, MECHANICSBURG, PA 17050 PHONE: 717-901-5916 FAX 717.920-9129 HUDOCK, P. C. SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. ATTORNEYS AT LAW STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A. HUDOCK, JR. GREGG A. GUTHRIE PETER B. SKEEL PATRICK M. CONNELLY* JEFFREY C. CATANZARITE JASON A. HINES KEVIN D. RAUCH ERIN M. BRAUN GUY E. BLASS MARK J. GOLEN ROBERT J. FISHER, JR. KIMBERLY L. GALLUCCI** JOHN A. LUCY SETH T. BLACK... ETHAN K. STONE MATTHEW RIDLEY CANDACE N. EDGAR DANA F BUTIA JULIA A. PHILLIPS GARTH A. GARTIN DANIEL J. SAMMEL MICAH T. SAUL *ALSO ADMITTED IN WV PITTSBURGH OFFICE: GULF TOWER, SUITE 2400 707 GRANT STREET PITTSBURGH, PA 15219 PHONE 412-261-3232 FAX 412-261-3239 January 3, 2011 Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 **ALSO ADMITTED IN OH ***ALSO ADMITTED IN NJ In Re: Keith L. Avery and Linda Avery v. Samantha Lynn Kleckner and Paula S. Black Docket Number 09-2875 (Cumberland County) Our File Number 17077 Dear Mr. Wise: As you know, I forwarded to you eight authorizations for the release of the Plaintiffs outstanding records in this case on November 17, 2010. On December 13, 2010, 1 reminded you that I still had not received the executed authorizations. Furthermore, in the event that the Plaintiff is going to assert a claim for past lost wages or loss of future earning capacity, I requested that the Plaintiff provide the tax returns as requested in the Request for Production of Documents. I would appreciate you advising as to when I should expect to receive this documentation. 7effrey y, . Catan zarite JCC/pk HARRISBURG OFFICE: 100 STERLING PARKWAY, SUITE 306, MECHANICSBURG, PA 17050 PHONE: 717-901-5916 FAX: 717-920-9129 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Second Motion to Compel was served upon the following counsel of record on the 26th day of January, 2011, by U.S. First Class Mail, postage prepaid: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 By: Su rs, McDonnell, Hudock, uth ie,& Skeel, P.C. Jeffry C. Catanzarite, Esquire Co sel for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, CIVIL DIVISION No. 09-2875 Plaintiffs, V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants. ORDER OF COURT AND NOW, to-wit, this day of 2011, it is hereby ORDERED, ADJUDGED and DECREED that the Plaintiffs provide to the Defendants executed authorizations for the release of the Plaintiffs records from the following providers: 1. Hershey Medical Center prior to March 1, 2004; 2. Madeira Chiropractic; 3. Internal Medicine Clinic (Dr. Goldstein); 4. D r. Kwo k; 5. Dr. Naides; 6. Dr. Huston; 7. Polyclinic Medical Center; 8. Global Outreach Christian Center (employment records); and, 9. State Farm Insurance Company (first-party benefits file). The Plaintiffs are also requested to provide the first name and address for the doctors on the authorizations which require them. In the event that the Plaintiffs would like to provide the appropriate records from the above-mentioned providers, the Plaintiffs are required to send these records to defense counsel within the time period specified on this Order of Court. The Plaintiff is also ordered to provide copies of his federal and state tax returns for the years 2002 to the present and the Plaintiff must provide the executed authorizations and/or records within ten (10) days of the date of this Order. In the event that the Plaintiffs fail to comply with this Order of Court, the Court may order sanctions as it deems fit. BY THE COURT: J. Counsel for Plaintiffs: Kenneth A. Wise, Esquire The Law Offices of Allen J. Leven & Kenneth A. Wise 27 West 3rd Street P.O. Box 231 Lewistown, PA 17044-0231 #17077 C ..,. rn rn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN 2 1 '? PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Civil Action -- Law Zca ?, ?`; Plaintiffs vz 09-08T'S" ?k No . V. SAMANTHA LYNN KLECKNER and PAULA S. BLACK, Defendants Jury Trial Demanded PLAINTIFFS' ANSWER TO DEFENDANTS' SECOND MOTION TO COMPEL DISCOVERY AND NOW come Plaintiffs, by their undersigned counsel, and respectfully answer Defendants' Second Motion to Compel Discovery, setting forth in support thereof as follows: Admitted. More particularly, the instant case is a claim for personal injuries sustained my Plaintiff Teeth Averyin an automobile accident due to Defendant Kleckner's operation of a motor vehicle while intoxicated and fleeing from the scene of the accident by pushing Plaintiffs' motor vehicle out of the way with the automobile she was operating, with a minor child aboard. 2. Admitted. More particularly, with the exception of copies of federal income tax returns, Plaintiffs have given to Defendants copies of all of the requested documents in their possession. They are also actively pursuing securing additional documents are not currently in their possession. 3. Admitted and denied. Admitted that Plaintiffs have given to Defendants all of the medical records within their possession. 4. Admitted. 5. Admitted. However, Plaintiffs' counsel is now in receipt of IRS 1040 forms for years 2005 to 2009 inclusive, which is being sent or will be sent shortly to counsel for Defendants. 6. Admitted and denied. The attachment identified as exhibit "1" does not represent a complete copy of the correspondence. Further denied that this method of discovering documents from a nonparty is either authorized by the Pennsylvania Rules of Civil Procedure or authorized by special order of court, or authorized by agreement of the parties. The allegations of the new matter, infra, are incorporated by reference herein. 7. Admitted and denied. Admitted that correspondence was sent. Denied that this method of discovering documents from a nonparty is either authorized by the rules, or authorized by special order of court, or authorized by agreement of the parties. The allegations of the new matter, infra, are incorporated by reference herein. 8. Admitted and denied. Admitted that the releases have not been sent by Plaintiffs. With the exception of the tax records, and is denied that Defendants are allowed to proceed in such a manner. The allegations of the new matter, infra, are incorporated by reference herein. 9. Admitted. New Matter 10. Paragraphs 1 through nine above are incorporated by reference herein. 11. Pa. R. C. P. rules .4009.21 through 4009.27 provide a procedure for production of documents in the possession of nonparties. 12. Pa. R. C. P. rules on discovery do not provide a procedure whereby an opposing party is obliged to sign an authorization for release of information. 13. Defendants have not requested permission of the court or agreement of Plaintiffs to proceed by signing authorizations for release of information. 14. The proposed authorization to release health care information forms proffered by Defendants for signature by Plaintiff Keefe Avery contain the following language: I have read and understand as follows: Although prohibited, it is possible that my PHI may be re-disclosed by this facility receiving my records, therefore, the provider has no responsibility or liability as a result of the re-disclosure, and such information would no longer be protected by the HIPAA privacy rule 15. The language in paragraph 14, above, is offensive to Plaintiff Keith Avery's medical privacy rights, and it represents a misstatement of the law as well. 16. Plaintiffs' counsel is willing to cooperate with counsel for Defendants by not opposing issuance of a standard subpoena for production of documents by agreeing to a proper subpoena with Defendants not having to wait 20 days as provided by rule 4009.21. WHEREFORE Plaintiffs respectfully request that defendant's motion to compel plaintiff Keith Avery to sign the authorizations be denied, and that this Honorable Court grant Plaintiffs additional 30 days to produce their IRS 1040 forms for tax years 2002 to 2004 inclusive. Date: February 18, 2001 L yz?.,2o / Kenneth A. Wise Levin and Wise 27 W. 3rd St Lewistown PA (717) 247-357.7 Attorneys for Plaintiffs CERTIFICATION OF SERVICE I certify that I am this day serving a true and correct copy of Plaintiffs' Response to Defendants' Second Motion to Compel Discovery on the following individual by first-class US mail addressed as follows: Jeffrey C. Catanzarite, Esq. Summers McDonnell, Hudock, Guthrie, & Skeel, LLP Gulf Tower, Suite 2400 707 Grant St Pittsburgh, PA 15219 DATE: February 18, 2011 14 a44e Kenneth A. Wse, Esq. Levin and Wise 27 W. 3rd St Lewistown, PA 17044 (717) 247-3577 Attorneys for Plaintiffs ,ter IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA KEITH L. AVERY and LINDA AVERY, Civil Action -- Law Plaintiffs a315 No.09-9875. V. -; SAMANTHA LYNN KLECKNER and PAULA S. BLACK, -<y Defendants Jury Trial Demand �{ C-r. PRAECIPE TO VOLUNTARILY DISCONTINUE To the Prothonotary: Please mark this case voluntarily discontinued with prejudice. Date: July 10 2013 Kenneth A. Wise, Esquire ID No. 16142 6127 Haymarket Way Mechanicsburg, PA 17050 (717) 247-3577 Attorney for Plaintiffs CERTIFICATION OF SERVICE I certify that I am this day serving a true and correct copy of the foregoing PRAECIPE TO VOLUNTARILY DISCONTINUE on the following individual(s) by first-class US mail, addressed as follows: Jeffrey C. Catanzarite, Esq. Summers McDonnell, Hudock, Guthrie, & Skeel, LLP Gulf Tower, Suite 2400 707 Grant St Pittsburgh, PA 15219 Mr. and Mrs. Keith L. Avery 2200 Kensington St Harrisburg, PA 17104 Date: July 9, 2013 rZ � Kenneth A. Wise, Esquire ID No. 16142 6127 Haymarket Way Mechanicsburg, PA 17050 (717) 247-3577 Attorney for Plaintiffs