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HomeMy WebLinkAbout09-6660IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD L. WIMBUSH, A single man, : No. b- O ! v i l Terwt Plaintiff V. : Civil Action - Law TRUDY NICKLOW, Defendant Jury Trial Demanded 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD L. WIMBUSH, A single man, Plaintiff V. TRUDY NICKLOW, Defendant : No. Civil Action -Law Jury Trial Demanded AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n 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 acci6n 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 reclamaci6n 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 para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD L. WIMBUSH, A single man, Plaintiff V. TRUDY NICKLOW, Defendant No. d 9 - G G? Civil Action - Law Jury Trial Demanded COMPLAINT The Plaintiff, Donald L. Wimbush, by and through her attorneys, SCHMIDT KRAMER PC, and hereby avers as follows: THE PARTIES 1. The Plaintiff, Donald L. Wimbush, is an adult individual currently residing at 114 North Second Street, Dauphin County, Pennsylvania. 2. Defendant, Trudy Nicklow, is an adult individual currently residing at 21 South West Avenue, Shiremanstown, Cumberland County, Pennsylvania. FACTS 3. The facts which give rise to the cause of action occurred on or about October 9, 2008 at the Capital City Car Wash on Hartzdale Drive, Camp Hill, Cumberland County, Pennsylvania, where an automobile operated by Trudy Nicklow ran over the foot of Donald L. Wimbush. 4. At the time of the above-referenced collision, Trudy Nicklow was operating her automobile and was in line at the Capital City Car Wash. 5. At the aforementioned time and place, Plaintiff, Donald L. Wimbush, was an employee of the Car Wash and was walking near the computer kiosk located near the vacuum cleaners and was hit by the Defendant's car as she pulled forward in line. 6. The collision and resulting injuries and damages are in no way caused or contributed to by the Plaintiff and were solely caused by the Defendant for the reasons set forth below. COUNT I Donald L. Wimbush v. Trudy Nicklow NEGLIGENCE 7. Paragraphs 1 through 6 of the Complaint are incorporated herein by reference and made a part thereof as if set forth in full. 8. The negligence, carelessness, and recklessness of the Defendant, Trudy Nicklow, consisted of the following: a. Failing to apply her brakes in time to avoid the 2 collision with the Plaintiff; b. Failing to keep a reasonable lookout for pedestrians at a busy car wash; C. Failing to operate her vehicle according to existing circumstances; d. Operating her vehicle in a manner so as to create a dangerous situation for pedestrians; e. Moving her vehicle when it was unsafe to do so. 9. As a direct and proximate result of the collision and Defendant's negligence, Plaintiff, Donald L. Wimbush, sustained injuries to his right foot and leg that may be permanent. 10. As a factual result of the accident, Plaintiff, Donald L. Wimbush, has incurred medical expenses to date and will continue to incur medical expenses into the future, and thus, a claim for these expenses is made. 11. As a factual result of the accident, Plaintiff, Donald L. Wimbush, has undergone in the past, and will continue to undergo in the future, great pain and suffering, and thus, a claim for these injuries is made. 12. As a factual result of the accident, Plaintiff, Donald L. Wimbush, has been obliged to spend various sums of money and to incur various expenses for the injuries that he has suffered and may 3 continue to incur the same in the future, and thus, a claim for these losses is made. 13. As a factual result of the accident, Plaintiff, Donald L. Wimbush, suffered a loss of earnings and an impairment of her earning power and capacity in the future, and thus, a claim for these losses is made. 14. As a factual result of the accident, Plaintiff, Donald L. Wimbush, suffered a permanent diminution of her ability to enjoy life and life's pleasures, and thus, a claim for these losses is made. 15. As a factual result of the accident, Plaintiff, Donald L. Wimbush, owes a lien to his Workmen's Compensation Insurance Carrier totaling at least $3,234.95 and, thus, a claim for these losses is made. WHEREFORE, Plaintiff, Donald L. Wimbush, demands judgment against the Defendant, Trudy Nicklow, in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, Date: -YL7/206 ? SCHMIDT KRAMER PC By: Todd D. Getgen I.D. No. 80719 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorney for Plaintiffs 4 VERIFICATION I, Donald L. Wimbush, verify that the facts contained in the foregoing Complaint are true and correct to the best of our knowledge, information and belief. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsifications to authorities. DATED: <?1_2 q/? ( 9 4Dboald L. imbush 0 FILED- !' ICE OF THE PP ; P4l]l, l0TARY 2009 OCT -6 PM 1: 42 z* yi-INTY PEE, N ;'I VVANIA $'1$.50 PO " Cry 13ylod d315o'?? r c? 17 / ? l Sheriffs Office of Cumberland County R Thomas Kline Sheriff Ronny R Anderson 2099 OCT 15 AM 9:09 y` Chief Deputy 1 ? ;, ter': Jody S Smith Tv Civil Process Sergeant FF1" E OF T - `RIFF Edward L Schorpp Solicitor Donald Wimbush vs. Trudy Nicklow Case Number 2009-6660 SHERIFF'S RETURN OF SERVICE 10/09/2009 03:34 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on October 9, 2009 at 1534 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Trudy Nicklow, by making known unto Harold Nicklow, husband of defendant at 21 South West Avenue Shiremanstown, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $41.94 SO ANSWERS, October 13, 2009 R THOMAS KLINE, SHERIFF Deputy Sheriff Our File No. 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH V. TRUDY NICKLOW COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-6660 Civil Term ENTRY OF APPEARANCE TO THE CLERK: Please enter my Appearance on behalf of Trudy Nicklow, in reference to the above captioned case. i RE ECCA E. JE (?j N, ESQUIRE Attorney for Defe t Trudy Nicklow I hereby certify that I have served a copy of this paper upon all other parties or their attorney of record by regular US Mail. FfLED-OFFIr"E OF THE PROTI-'?NOTARY 2009 NOY -2 P11 3: 4 0 CGP? ?UNTY Our File No. 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: '(610) 398-5492 DONALD L. WIMBUSH V. TRUDY NICKLOW Defendant, Trudy Nicklow, Demands a Jury Trial of twelve (12) in reference to DEMAND FOR JURY TRIAL TO THE CLERK: the above captioned case. ATTORNEY FOR DEFENDANT Trudy Nicklow COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-6660 Civil Term 1k-4)kUQ1-P' 4flyn, REBECCA E. JELL ESQUIRE Attorney for Defenda& Trudy Nicklow I hereby certify that I have served a copy of this paper upon all other parties or their attorney of record by regular First Class mail. FlLED4.,, "F: E f-!?,?YOAAY 07 Tr- 2009 NOV -2 PM 3: 4 0 CUMIDL. Our File No. 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 DONALD L. WIMBUSH V. TRUDY NICKLOW TO THE CLERK: ATTORNEY FOR DEFENDANT Trudy Nicklow COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-6660 Civil Term CERTIFICATE OF SERVICE I, Rebecca E. Jellen, Esquire, hereby certify that a true and correct copy of Defendant's Interrogatories Addressed to Plaintiff, Donald L. Wimbush; and, Defendant's Request for Production of Documents Directed to Plaintiff, Donald L. Wimbush, were served this date by United States Mail, First Class, postage prepaid, upon: Todd D. Getgen, Esquire SCHMIDT KRAMER PC 209 State Street Harrisburg, PA 17101 REBECCA E. J Attorney for De Trudy Nicklow , ESQUIRE Dated: October 28, 2009 FILED-C CE OP THE- F O! ?!"NOTAP.Y 2009NOY -2 PM 3: 40 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH COURT OF COMMON PLEAS Y OF COUNTY TRUDY NICKLOW NO. 09-6660 Civil Term NOTICE TO PLEAD TO: Donald L. Wimbush, Plaintiff C/O Todd D. Getgen, Esquire SCHMIDT KRAMER, P.C. 209 State Street Harrisburg, PA 17101 YOU ARE HEREBY NOTIFIED AND REQUIRED TO FILE A WRITTEN RESPONSE TO THE WITHIN ANSWER AND NEW MATTER OF DEFENDANT, TRUDY NICKLOW, TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. W, I REBECCA E. JELLS ,ESQUIRE Attorney for Defendan Trudy Nicklow DATED: D 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH COURT OF COMMON PLEAS V. OF CUMBERLAND COUNTY . TRUDY NICKLOW NO. 09-6660 Civil Term DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER Defendant, Trudy Nicklow, by and through the undersigned counsel, answers the Plaintiff's Complaint as follows: 1. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff s Complaint. Said averments are therefore denied. 2. ADMITTED. 3. ADMITTED in part and DENIED in part. It is only admitted that on or about October 9, 2008, Answering Defendant, Trudy Nicklow, was at the Capital City Car Wash on Hartzdale Drive, Camp Hill, Cumberland County, Pennsylvania. The remainder of the averment is denied pursuant to Pa. R.C.P. 1029(e). 4. ADMITTED in part and DENIED in part. It is only admitted that on or about October 9, 2008, Answering Defendant, Trudy Nicklow was operating a vehicle and had been waiting in line at the Capital City Car Wash. The remainder of the averment is denied pursuant to Pa.R.C.P. 1029(e). 5. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 6. DENIED pursuant to Pa.R.C.P. 1029(e). COUNTI 7. DENIED. Answering Defendant incorporates by reference the responsive pleadings set forth in the previous paragraphs of Defendant's Answer as though same were fully set forth at length. 8. (a. - e.) DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answr, DENIED. It is specifically denied that answering Defendant was in any way negligent, reckless, or careless. To the contrary, answering Defendant acted reasonably and with due care. 9. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 10. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 11. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 12. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 13. DENIED pursuant to Pa.R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 14. DENIED pursuant to Pa. R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. Said averments are therefore denied. 15. DENIED pursuant to Pa. R.C.P. 1029(e). By way of further answer, DENIED. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff's Complaint. WHEREFORE, Defendant, Trudy Nicklow demands Judgment in her favor and against all parties. DEFENDANT'S NEW MATTER AFFIRMATIVE DEFENSES 16. Pennsylvania Comparative Negligence Act All negligence causes of action and/or claims asserted against answering Defendant are limited, governed, barred and/or restricted, by the terms of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. Section 7102, the relevant terms of which are incorporated by reference herein. 17. Contributory Negligence All negligence causes of action and/or claims asserted against answering Defendant are barred by the Doctrine of Contributory Negligence. The injuries/damages allegedly suffered by Plaintiff were directly and proximately caused by the failure of Plaintiff to exercise that degree of care for his own safety and well being, which a reasonably prudent person would have exercised under the same or similar circumstances. 18. Assumption of Risk All causes of action and/or claims asserted against answering Defendant are barred by the Doctrine of Assumption of the Risk, as the direct and proximate cause of any injuries/damages allegedly suffered by Plaintiff was the assumption of the risk of the Plaintiff, in knowingly subjecting himself to risk of injury/damage incurred. 19. Financial Responsibility Law All causes of action and/or claims as set forth in all Civil Action(s)/Complaints(s) are limited, governed, barred, and/or restricted by the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984, 75 Pa. C.S.A. 1701, et seq., as amended by Act 6 of 1990, the relevant provisions of which are incorporated by reference herein as though the same were fully set forth at length. 20. Negligence of a Third Party The injuries/damages allegedly suffered by the Plaintiff as set forth in the Civil Actions/Complaints were caused solely by the acts, conduct, negligence, carelessness, and/or recklessness of individuals and/or entities over whom answering Defendant has no control nor the right to control, nor the duty to control. WHEREFORE, Defendant, Trudy Nicklow demands Judgment in her favor and against all parties. -A f REBECCA E. JELLE SQUIRE Attorney for Defen Trudy Nicklow VERIFICATION Rebecca E. Jellen, Esquire, states that she is the attorney for the within named Trudy Nicklow, and the facts set forth in the foregoing pleading are true and correct to the best of her knowledge, information, and belief; and this statement is made subject to the penalties of 18 Pa. C. §4904, relating to unsworn falsification to authorities. REBECCA E. JE N, ESQUIRE Attorney for Defe t Trudy Nicklow CERTIFICATE OF SERVICE I do hereby certify that on October 28, 2009 service of a true and correct copy of the within pleading was made on all relevant parties or their counsel of record pursuant to Pa.R.C.P. 440. MAI)m 0 LL 4VW- REBECCA E. JELLE , ESQUIRE Attorney for Defendan Trudy Nicklow ?If 1 ? A OF TNc F , ?'HO IOTARY 2009 NOY -2 PM 3: 41 CUM'- , -;N Y PE; Our File No. 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH V. TRUDY NICKLOW COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-6660 Civil Term To: Capital City Car Wash, 3525 Hartzdale Drive, Camp Hill, PA Date: October 28, 2009 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 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 YOU 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, PA 17013 ADVISO Le han demando a usted en la corte. Si usted quiere defenderse deestas demandas expuestas en las paginas si guientes, usted tiene veinte (20) dias de plazo al partir de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en formaescrita 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 continuarla demands en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted compla con todas las provisions de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DAMANDA A UN ABOGADO IMMEDIATAMENTE. SINO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICIAN CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONE SE PUEDE CONSEGUIR ASISTENSIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 21 0128270303.1 LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. NO. 09-6660 Civil Term TRUDY NICKLOW DEFENDANT'S CIVIL ACTION AGAINST ADDITIONAL DEFENDANT, CAPITAL CITY CAR WASH And now, Defendant, Trudy Nicklow join as Additional Defendant to the above captioned matter, Capital City Car Wash pursuant to Rule 2252(b) of the Pennsylvania Rules of Civil Procedure. In support thereof, Defendant avers as follows: 1. The above action is a civil suit in trespass in which Plaintiff seeks to recover damages arising from an automobile collision, the facts of which are more fully set forth in Plaintiff's Complaint. A true and correct copy of said Complaint is attached hereto and marked as Exhibit A and is incorporated herein solely as allegations directed to Additional Defendant. 2. At the time and place described in Plaintiff's Complaint, Additional Defendant, Capital City Car Wash, was employer of the Plaintiff at the time of the aforesaid collision. 3. Additional Defendant, Capital City Car Wash, had a duty to motorists who obtained their services to do so in a reasonably prudent manner, with due regard for the safety of motorists, employees, and/or pedestrians. 4. Additional Defendant, Capital City Car Wash, failed to operate their business in a reasonably prudent manner, with due regard for the safety of motorists, employees, and/or pedestrians. 5. Additional Defendant, Capital City Car Wash, operated said business in a manner that was unsafe for its employees and motorists using their services. 6. Additional Defendant, Capital City Car Wash, failed to maintain control over said employees perform requested. services of the business. 7. Additional Defendant, Capital City Car Wash, failed to provide employees with proper training and safeguards necessary to operate said business safely. 8. Additional Defendant, Capital City Car Wash, also committed other acts and omissions which, while presently unknown, may be disclosed through investigation and discovery. 10. The aforesaid acts and omissions of Additional Defendant, Capital City Car Wash, constitute negligence. 11. The negligence of Additional Defendant, Capital City Car Wash, is the sole and proximate cause the damages allegedly sustained by the Plaintiff, said damages being denied by Defendant. 12. At the aforesaid time and place, Plaintiff was acting upon the instructions of, at the direction of, and for the benefit of Additional Defendant, Capital City Car Wash. 13. At the aforesaid time and place, Plaintiff was the employee, servant, and agent of Additional Defendant, Capital City Car Wash, and was at all times relevant hereto acting within the course and scope of said employment. 2 14. At the aforesaid time and place, other employees, servant, and agents of Additional Defendant, Capital City Car Wash, were controlling the movement of car was at all times relevant hereto acting within the course and scope of said employment. Additional Defendant, Capital City Car Wash, is vicariously liable for the negligent acts of Plaintiff. 15. If it is judicially determined that the Plaintiff is entitled to recovery of damages, then Additional Defendants, Capital City Car Wash are solely liable to the Plaintiff for said damages, or are jointly or severally liable to the Plaintiff for said damages, or are liable over to Defendant, Trudy Nicklow, for indemnification and/or contribution for said damages. WHEREFORE, Defendant, Trudy Nicklow, demand judgment in her favor and against Additional Defendants, Capital City Car Wash for the above listed remedies. REBECCA E. JELLIV, ESQUIRE Attorney for Defenda Trudy Nicklow 3 0128270303.1 VERIFICATION REBECCA E. JELLEN, Esquire, states that she is the attorney for the within named Trudy Nicklow, and the facts set forth in the foregoing pleading are true and correct to the best of her knowledge, information, and belief; and this statement is made subject to the penalties of 18 Pa. C. §4904, relating to unsworn falsification to authorities. - J A U U ( , -?'aw REBECCA E. J EN, ESQUIRE Attorney for Def nt Trudy Nicklow 4 CERTIFICATE OF SERVICE I do hereby certify that on October 28, 2009 service of a true and correct copy of the within pleading was made on all relevant parties or their counsel of record pursuant to Pa.R.C.P. 440. 6fid jiff, REBECCA E. JE N, ESQUIRE Attorney for Defe t Trudy Nicklow 5 ALEttff-CE CF THIE f?'?THr NO NARY 2009 NON -2 P1i 3: 41 1 _ f` IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD L. WIMBUSH, A single man, Plaintiff V. TRUDY NICKLOW, Defendant No. 09-6660 Civil Action - Law Jury Trial Demanded PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 16. Denied. Defendant's new matter does not contain any facts and is a conclusion of law which is deemed denied under Pa.R.C.P. 1029(d) and (e). 17. Denied. Defendant's new matter does not contain any facts and is a conclusion of law which is deemed denied under Pa.R.C.P. 1029(d) and (e). 18. Denied. Defendant's new matter does not contain any facts and is a conclusion of law which is deemed denied under Pa.R.C.P. 1029(d) and (e). by way of further answer, Plaintiff has full tort automobile insurance. 19. Denied. Defendant's new matter does not contain any facts and is a conclusion of law which is deemed denied under Pa.R.C.P. 1029(d) and (e). l? 20. Denied. Defendant's new matter does not contain any facts and is a conclusion of law which is deemed denied under Pa.R.C.P. 1029(d) and (e). WHEREFORE, Plaintiff, Donald Wimbush, demands judgment on the Defendant, Trudy Nicklow, in an amount in excess the amount requiring compulsory arbitration. Respectfully submitted, SCHMIDT KRAMER PC Date: 1l ( ?lSo By: Todd D. Getgen I.D. No. 80719 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorney for Plaintiffs Al Ku-',O HCDIE PC r: 07-)7' r'°y 2OQ9 NOV 10 Ai"i I61; C i I-, . 0128270303.1 LAW OFFICES OF TWANDA TURNER-HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 DONALD L. WIMBUSH V. TRUDY NICKLOW ATTORNEY FOR DEFENDANT Trudy Nicklow n ~ , ^. ~. a . ~ . ~ ~- , ~ _ .~. .1~ ~ r r ~ t COURT OF COMMON PLEAS~~ ' r ~- ` OF CUMBERLAND COUNTY; t _ -o ~= cy J~ NO. 09-6660 Civil Term .~ r- ~ ~ PRAECIPE TO REINSTATE JOINDER COMPLAINT TO THE CLERK: Please reinstate Defendant's Joinder Complaint against Additional Defendant, Capital City Car Wash. REBECCA E. • Attorney for Df Trudy Nicklow ESQUIRE ~ I D• oo P ~ Ares-n-TS ~~ sa I o 9 aa~4a r2~ a3(,~.s~ c e IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DONALD L. WIMBUSH, Plaintiff v. TRUDY NICKLOW, Defendant v. CAPITAL CITY CAR WASH, Additional Defendant CASE NO: 09-6660 NOTICE TO PLEAD TO: DEFENDANT, TRUDY NICKLOW c/o Rebecca E. Jellen, Esquire Law Offices of Twanda Turner-Hawkins Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 C c~ ` ~` ° n . rr- , , , c : ,,; ~? -, :~_ i-- - -r: ~~ ; ~ ~ ~'~; ~- . r ~ - r -~ `a' ~ _ !, ,~ : rv : ~ =c YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ATTACHED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: AM L. SEIFER SQ RE Counsel for the Additional D fend t, Date: ~ ~ ~ ~~~ ~ D CAPITAL CITY CAR WAS T ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DONALD L. WIMBUSH, ) CASE NO: 09-6660 Plaintiff 1 v. TRUDY NICKLOW, Defendant v. CAPITAL CITY CAR WASH, Additional Defendant ) ADDITIONAL DEFENDANT'S PRELIMINARY OBJECTION TO DEFENDANT'S JOINDER COMPLAINT AND NOW, comes the Additional Defendant, Capital City Car Wash (hereinafter referred to as "Car Wash"), by and through its attorneys, Cipriani & Werner, P.C., and files a Preliminary Objection in the nature of a demurrer to the Joinder Complaint of Defendant, Trudy Nicklow (hereinafter referred to as "Defendant") and, in support thereof, state as follows: I. PROCEDURAL AND FACTUAL BACKGROUND 1. On October 6, 2009, the underlying Plaintiff, Donald L. Wimbush (hereinafter referred to as "Plaintiff'), filed a Complaint against Defendant alleging that on October 9, 2008, Defendant was operating a vehicle that ran over Plaintiff's foot at the Capital City Car Wash. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A". See, Exhibit A, paragraph 3. i ~ 2. The Plaintiff s Complaint alleges that Plaintiff was an employee of the Car Wash, Additional Defendant herein, at all times relevant to the circumstances of the accident. See, Exhibit A, paragraph 4. 3. Plaintiff's Complaint contends that the Defendant was negligent in her operation of the vehicle and makes a claim for personal injury damages against Defendant. See, Exhibit A. 4. Thereafter, on November 2, 2009, Defendant filed a "Civil Action Against Additional Defendant, Capital City Car Wash" (hereinafter referred to as the "Joinder Complaint"). A true and correct copy of the Joinder Complaint is attached hereto as Exhibit "B". 5. The Joinder Complaint was served on Additional Defendant, Car Wash, on May 21, 2010. 6. In the Joinder Complaint, Defendant alleges that, "At the time and place described in Plaintiff s Complaint, Additional Defendant, Capital City Car Wash, was [the] employer of the Plaintiff at the time of the aforesaid collision" and that "Plaintiff was the employee, servant, and agent of Additional Defendant, Capital City Car Wash, and was at all times relevant hereto acting within the course and scope of said employment." See, Exhibit B, paragraphs 2 and 13 respectively. 7. The Joinder Complaint further alleges that various acts and omissions of Additional Defendant, Car Wash, constitute negligence and claims that Additional Defendant, Car Wash, is solely liable to Plaintiff for his alleged damages, is jointly or severally liable with Defendant for Plaintiff's alleged damages, or is liable over to Defendant for indemnification and/or contribution. See, Exhibit B, paragraph 15. 8. Additional Defendant, Car Wash, now files a preliminary objection to the Joinder Complaint in the nature of a demurrer on the basis of immunity under Section 303(b) of the Pennsylvania Workers Compensation Act, 77 P.S. § 481. II. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) IN THE NATURE OF A DEMURRER ON THE BASIS OF WORKERS COMPENSATION IMMUNITY UNDER SECTION 303(b) OF THE PENNSYLVANIA WORKERS COMPENSATION ACT, 77 P.S. § 481. 9. Additional Defendant, Car Wash, incorporates paragraphs 1 through 8 above herein as though fully set forth herein at length. 10. A demurrer tests the legal sufficiency of the complaint. HCB Contractors u Liberty Place Hotel Associates. 539 Pa. 395, 652 A.2d 1278, 1279 (1995). A trial court may sustain a demurrer, and thereby dismiss a claim, only when the law is clear that a plaintiff is not entitled to recovery based on the facts alleged in the complaint. Id. In determining the merits of a demurrer, all well-pleaded, material facts set forth in the complaint and all inferences fairly deducible from those facts are considered admitted and are accepted by the trial court as true; conclusions of law are neither deemed admitted nor deemed true. Small v Horn. 554 Pa. 600, 722 A.2d 664, 668 (1998). 11. Courts of this Commonwealth have allowed parties to raise the affirmative defense of immunity as a preliminary objection where clearly applicable on the face of the complaint. Sweeny a Merrymead Farm. Inc., 799 A.2d 972, 975-976 (Pa. Cmwlth. 2002); see also, Kosowan v MDC Industries. Inc., 319 Pa. Super. 91, 465 A.2d 1069 (1983), holding workers compensation immunity may be raised by preliminary objection if the opposing party does not challenge the procedure. 12. Accepting the allegations of the Joinder Complaint as true, "Plaintiff was the employee, servant, and agent of Additional Defendant, Capital City Car Wash, and was at all times relevant hereto acting within the course and scope of said employment." See, Exhibit B, paragraph 13. 13. Section 303 of the Pennsylvania Workers Compensation Act, 77 P.S. § 481, provides immunity from tort liability to employers of injured employees as follows: a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, ... or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death ... . (b) In the event injury or death to an employe is caused by a third party, then such employe, ... may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. 77 P.S. § 481. Therefore, Additional Defendant, Car Wash, is immune from liability for Plaintiff s claims. 14. Furthermore, in an action by an employee against athird-party tortfeasor, the employee cannot be joined as an additional defendant for any purpose, including contribution, indemnity or apportionment of liability, as joinder is barred by the exclusive liability section of the Workers' Compensation Act, 77 P.S. § 481. Heckendorn v. Consolidated Rail Corporation, 502 Pa. 101, 465 A.2d 609 (1983).1 15. The Defendant's Joinder Complaint should be dismissed based upon the Pennsylvania Supreme Court's ruling in Heckendorn, supra, as Defendant cannot, as a matter of law, assert that Additional Defendant, Car Wash, is solely liable to Plaintiff for his alleged damages, is jointly or severally liable with Defendant for Plaintiffs alleged damages, or is liable over to Defendant for indemnification and/or contribution. ' Notably, in Heckendorn, the Court of Common Pleas of Cumberland County granted preliminary objections on the basis of workers compensation immunity, which ruling was subsequently affirmed by the Pennsylvania Superior and Supreme Courts. 16. Defendant fails to allege the existence of a written contract which would otherwise operate as a waiver of the immunity provisions of the Pennsylvania Workers Compensation Act, as no such contract exists. WHEREFORE, Addition Defendant, Capital City Carwash, respectfully requests this Honorable Court to grant its Preliminary Objection pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer and to dismiss the Joinder Complaint of Defendant, 'Trudy Nicklow, with prejudice. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: ADAM L. SEI E T , E U PA Attorney ID# 89073 1011 Mumma Road, Suite Lemoyne, PA 17043 (717) 975-9600 Date: ~ -~ ^-~~ Counsel for the Additional Defendant, CAPITAL CITY CAR WASH EXHIBIT A IN THE COURT OF CO~dON PLEA8 OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD L. WIMBUSH, A single maa, Plaiatiff v. TRUDY NICKLOW, Defeadant . No. 4 9- G 4 ~ b (~ ?Jr~.... Civil Actioa - I.aw Jury Trial Demanded COMPLAINT The Plaintiff, Donald L. Wimbush, by and through her attorneys, SCHMIDT KRAMER PC, and hereby avers as follows: THE PARTIES 1. The Plaintiff, Donald L. Wimbush, is an adult individual currently residing at 114 North Second Street, Dauphin County, Pennsylvania. 2. Defendant, Trudy Nicklow, is an adult individual currently residing at 21 South West Avenue, Shiremanstown, Cumberland County, Pennsylvania. FACTS 3. The facts which give rise to the cause of action occurred on or about October 9, 2008 at the Capital City Car Wash on Hartzdale Drive, Camp Hill, Cumberland County, Pennsylvania, where an automobile operated by Trudy Nicklow ran over the foot of Donald L. Wimbush. 4. At the time of the above-referenced collision, Trudy Nicklow was operating her automobile and was in line at the Capital City Car Wash. 5. At the aforementioned time and place, Plaintiff, Donald L. Wimbush, was an employee of the Car Wash and was walking near the computer kiosk located near the vacuum cleaners and was hit by the Defendant's car as she pulled forward in line. b. The collision and resulting injuries and damages are in no way caused or contributed to by the Plaintiff and were solely caused by the Defendant for the reasons set forth below. COUNT I Donald L. Wimbush v. Trndv Nicl~lo~v NEQrLIC~EIrCE 7. Paragraphs 1 through 6 of the Complaint are incorporated herein by reference and made a part thereof as if set forth in full. 8. The negligence, carelessness, and recklessness of the Defendant, Trudy Nicklow, consisted of the following: a. Failing to apply her brakes in time to avoid the 2 collision with the Plaintiff; b. Failing to keep a reasonable lookout for pedestrians at a busy car wash; c. Failing to operate her vehicle according to existing circumstances; d. Operating her vehicle in a manner so as to create a dangerous situation for pedestrians; e. Moving her vehicle when it was unsafe to do so. 9. As a direct and proximate result of the collision and Defendant's negligence, Plaintiff, Donald L. Wimbush, sustained injuries to his right foot and leg that may be permanent. 10. As a factual result of the accident, Plaintiff, Donald L. Wimbush, has incurred medical expenses to date and will continue to incur medical expenses into the future, and thus, a claim for these expenses is made. 11. As a factual result of the accident, Plaintiff, Donald L. Wimbush, has undergone in the past, and will continue to undergo in the future, great pain and suffering, and thus, a claim for these injuries is made. 12. As a factual result of the accident, Plaintiff, Donald L. Wimbush, has been obliged to spend various sums of money and to incur various expenses for the injuries that he has suffered and may 3 continue to incur the same in the future, and thus, a claim for these losses is made. 13. As a factual result of the accident, Plaintiff, Donald L. Wimbush, suffered a loss of earnings and an impairment of her earning power and capacity in the future, and thus, a claim for these losses is made. 14. As a factual result of the accident, Plaintiff, Donald L. Wimbush, suffered a permanent diminution of her ability to enjoy life and life's pleasures, and thus, a claim for these losses is made. 15. As a factual result of the accident, Plaintiff, Donald L. Wimbush, owes a lien to his Workmen's Compensation Insurance Carrier totaling at least $3,234.95 and, thus, a claim for these losses is made. WHEREFORE, Plaintiff, Donald L. Wimbush, demands judgment against the Defendant, Trudy Nicklow, in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, Date: BCHMIDT KRAffiER PC sy: Todd D. Getgen I.D. No. 80719 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorney for Plaintiffs 4 VERIFICATION I, Donald L. Wimbush, verify that the facts contained in the foregoing Complaint are true and correct to the best of our knowledge, information and belief. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsifications to authorities. DATED: ~ ~ q/,~ ~ 9 i ) l ~cX~1 Do ald L. imbush O r~tFO-,.;, rEc~ of ~E P~-_~T~~~vor~w~r 2009 OCT -6 PM 1 ~ 42 CI.lA+i8ci7u•;v i.;~J~~hTY PE1'Jf:S ,'L4;1NIA ~18.5o PC1 ~n,/ cry r~,~a ~ a.3~say~ x''7"1 ~ ~*'~'''~ /~ `a / 7 / ~ / •: EXHIBIT B Our File No. 0128270303.1- LAW OFFICES OF TWANDA TURNER- HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIlVIBUSH V. TRUDY NICKLOW COURT OF COMMON PLEAS OF CUMBERLAND COUNTY N0.09-6660 Civil Term To: Capital City Car Wash, 3525 Hartzdale Drive, Camp Hill, PA Date: October 28, 2009 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 appcarance 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 further notice for any money ciauned 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 YOU LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIl~D OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 :~ i ~ Le han demando a usted en la Corte. Si usted quiere defenderse deestas demandas expuestas en las paginas si guientes, usted tiene veinte (20) dins de plazo al partir de la demands y la notification. Hate falta asentar una comparencia escrita o en persona o con un abogado y entregar a la Corte en formaescrita sus defenses 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 continuarla demands en contra suya sin previo aviso 0 notification. Ademas, la Corte puede decidir a favor del demandante y requiere que usted compia con todas las provisiones de esta demands. Usted puede perder dinero o sus propiedades u otros derechos importantes pare usted. LLEVE ESTA DAMANDA A UN ABOGADO IlviMEDIATAMENTE. SINO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICIAN CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONE SE PUEDE CONSEGUIR ASISTENSIA LEGAL. Cumberland County Baz Association 2 Liberty Avenue Cazlisle, PA 17013 21 ! ~ ~ 0128270303.1 LAW OFFICES OF TWANDA TURNER- BECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Dnve, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIlvIBUSH COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V• N0.09-6660 Civil Tenor TRUDY NICKLOW DEFENDANT'S CIVIL ACTION AGAINST ADDITIONAL DEFENDANT, CAPITAL CITY CAR WASH And now, Defendant, Trudy Nicklow join as Additional Defendant to the above captioned matter, Capital City Car Wash pursuant to Rule 2252(b) of the Pennsylvawia Rules of Civil Procedure. In support thereof, Defendant avers as follows: 1. The above action is a civil suit in trespass in which Plaintiff seeks to recover damages arising from an automobile collision, the facts of which are more fully set forth in Plaintiff's Complaint. A true and correct copy of said Complaint is attached hereto and marked as Exhibit A and is incorporated herein solely as allegations directed to Additional Defendant. 2. At the time and place described in Plaintiffs Complaint, Additional Defendant, Capital City Car Wash, was employer of the Plaintiff at the time of the aforesaid collision. 3. Additional Defendant, Capital City Caz Wash, had a duty to motorists who obtained their services to do so in a reasonably prudent manner, with due regazd for the safety of motorists, employees, and/or pedestrians. . ~ ~ 4. Additional Defendant, Capital City Caz Wash, failed to operate their business in a reasonably prudent manner, with due regazd for the safety of motorists, employees, and/or pedestrians. 5. Additional Defendant, Capital City Caz Wash, operated said business in a manner that was unsafe for its employees and motorists using their services. 6. Additional Defendant, Capital City Car Wash, failed to maintain control over said employees perform requested services of the business. 7. Additional Defendant, Capital City Caz Wash, failed to provide employees with proper training and safeguards necessary to operate said business safely. 8. Additional Defendant, Capital City Car Wash, also committed other acts and omissions which, while presently unknown, may be disclosed through investigation and discovery. 10. The aforesaid acts and omissions of Additianal Defendant, Capital City Car Wash, constitute negligence. 11. The negligence of Additional Defendant, Capital City Caz Wash, is the sole and proximate cause the damages allegedly sustained by the Plaintiff, said damages being denied by Defendant. 12. At the aforesaid time and place, Plaintiff was acting upon the instructions of, at the direction of, and for the benefit of Additional Defendant, Capital City Caz Wash. 13. At the aforesaid time and place, Plaintiff was the employee, servant, and agent of Additional Defendant, Capital City Caz Wash, and was at all times relevant hereto acting within the course and scope of said employment. 2 14. At the aforesaid time and place, other employees, servant, and agents of Additional Defendant, Capital City Car Wash, were controlling the movement of car was at all times relevant hereto acting within the course and scope of said employment. Additional Defendant, Capital City Caz Wash, is vicariously liable for the negligent acts of Plaintiff. 15. If it is judicially determined that the Plaintiff is entitled to recovery of damages, then Additional Defendants, Capital City Caz Wash are solely liable to the Plaintiff for said damages, or aze jointly or severally liable to the Plaintiff for said damages, or are liable over to Defendant, Trudy Nicklow, for indemnification and/or contribution for said damages. WHEREFORE, Defendant, Trudy Nicklow, demand judgment in her favor and against Additional Defendants, Capital City Car Wash for the above listed remedies. REBECCA E. JELL, ESQUIRE Attorney for Defen Trudy Nicklow 3 0128270303.1 VERIFICATION REBECCA E. JELLEN, Esquire, states that she is the attorney for the within named Trudy Nicklow, and the facts set forth in the foregoing pleading are true and connect to the best of her knowledge, information, and belief; and this statement is made subject to the penalties of 18 Pa. C. §4904, relating to unsworn falsification to authorities. REBECCA E. EN, ESQUIRE Attorney for Def t Trudy Nicklow 4 ._ CERTIFICATE OF SERVICE I do hereby certify that on October 28, 2009 service of a true and correct copy of the within pleading was made on all relevant parties or their counsel of record pursuant to Pa.R.C.P. 440. REBECCA E. JE ,ESQUIRE Attorney for Defe t Trudy Nicklow 5 ~ s 'I~l:~b-%'rFICF QF THc °~~' Hr!N~7TARY 2009 ~iOY -2 PM 3~ 41 CUt,~~ : .. ~;.~~~~ITY ~. ~ ,. CERTIFICATE OF SERVICE That counsel for the Additional Defendant, CAPITAL CITY CAR WASH, hereby certifies that a true and correct copy of its PRELIMINARY OBJECTION TO DEFENDANT' S JOINDER COMPLAINT has been served on all counsel of record, by first class. mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the ~_ day of ~T„~~, , 2010. Gerard C. Kramer, Esquire Schmidt Kramer P.C. 209 State Street Harrisburg, PA 17101 (Plaintiff's Counsel) Rebecca E. Jellen, Esquire Law Offices of Twanda Turner-Hawkins Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 (Defendant's Counsel) Respectfully submitted, BY: CIPRIANI & WERNER, P.C. ADAM L. SEIFERTH, E~ Counsel for the Additiona CAPITAL CITY CAR WA l IN THE COURT OF COMMON PLEA5 OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DONALD L. WIMBUSH, Plaintiff v. TRUDY NICKLOW, Defendant V. CAPITAL CITY CAR WASH, Additional Defendant ~Q--E ~c ~ J ~s ~J i _ ~~ ~x'i L7 v _ _ ... . ~1 -n ; , ~ ' ` ~ ~ N ~ ~-r. _ CASE NO: 09-6660 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. 1. State matter to be azgued: Additional Defendant's Preliminary Objection in the nature of a demurrer to Defendant's Joinder Complaint 2. Identify all counsel who will argue case: (a) for plaintiff: Gerazd C. Kramer, Esquire Schmidt Kramer, P.C. 209 State Street Harrisburg, PA 17101 (b) for defendant: Rebecca E. Jellen, Esquire Law Offices of Twanda Turner-Hawkins Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 (c) for additional defendant: Adam L. Seiferth, Esquire Cipriani & Werner, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: ~-~~ y ~ ~~ ~ b ~ P~ °i'~r 9~'`r~"`1 ~'-Y ~ G °~Y ~d ~pL Respectfully submitted, CIPRIANI & WERNER, P.C. Date: ~ - ~-,~ j~ 1 L~ BY: ADAM L. SEIFERTH, ES PA Attorney ID# 89073 I 1011 Mumma Road, Suite Lemoyne, PA 17043 (717) 975-9600 Counsel for the Additional Defendant, CAPITAL CITY CAR WASH CERTIFICATE OF SERVICE That counsel for the Additional Defendant, CAPITAL CITY CAR WASH, hereby certifies that a true and correct copy of its PRAECIPE FOR LISTING CASE FOR ARGUMENT has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the day of -sJ yd? ~_ , 2010. Gerard C. Kramer, Esquire Schmidt Kramer P.C. 209 State Street Harrisburg, PA 17101 (Plaintiffs Counsel) Rebecca E. Jellen, Esquire Law Offices of Twanda Turner-Hawkins Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 (Defendant's Counsel) Respectfully submitted, CIPRIANI & WERNER, P.C. BY: ADAM L. SEIFERTH, ESQU: Counsel for the Additional Dei CAPITAL CITY CAR WASH 0128270303.1 LAW OFFICES OF TWANDA TURNER-HAWKINS REBECCA E. JELLEN, ESQ. Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. NO. 09-6660 Civil Term TRUDY NICKLOW PRAECIPE TO WITHDRAW JOINDER COMPLAINT TO THE CLERK: n c ~ ~~. .rrr -~ r_; ter`. ~} - ~. TJ t- ~_.. l 0 4 c ~-_ t xa ~. ~~ -c i't-; ~~ ~~_-: +' - ;: i~j ;`~ ~'~ :~ K Please withdraw Defendant's Joinder Complaint against Additional Defendant, Capital City Car Wash. 0128270303.1 LAW OFFICES OF TWANDA TURNER-HAWKINS REBECCA E. JELLEN, ESQ. Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 ATTORNEY FOR DEFENDANT Trudy Nicklow DONALD L. WIMBUSH COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. NO. 09-6660 Civil Term TRUDY NICKLOW CERITIFICATE OF SERVICE ~~ :- ~-~-, _Y { ; r1;' r-`- ~_ . ~,. .~> r ~: N n ~-~-- N S%* ~.. i ~,s, ~~ ;:, a. z ' c-; T`ex~ :'--I I hereby certify that a true and correct copy of Defendant's Praecipe to Withdraw Joinder Complaint was served this date by United States Mail, First Class, postage prepaid, upon: Todd D. Getgen, Esquire SCHMIDT KRAMER PC 209 State Street Harrisburg, PA 17101 Adam L. Seiferth ,Esquire 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 RgB CA E. JE EN, Attor ey for Def ndant Tr y Nicklow Dated: July 1, 2010 SCHMIDT KRAMER PC BY: Gerard C. Kramer, ESQUIRE ZB ~ ~ .~u~ _ ~ ~~` ~~; ~ ~ I.D. #44715 209 State Street C~rf J~~,~ ~ ~, Harrisburg, PA 17101 r~P~ ,;~;;' y~,y; (717) 232-6300 ~ttorneys for Plaintiff(s) ~kramex~a schmidtkramer com DONALD L. WIMBUSH., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. TRUDY NICKLOW, Defendant No. 09-6660 CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWN/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Todd D. Getgen, Esquire as attorney of records for the Plaintiff in the above-captioned matter. Please enter the appearance of Gerard C. Kramer, Esquire of SCHMIDT KRAMER PC as attorney of record for the Plaintiff in the above-captioned action. Respectfully submitted, SCHMIDT KRAMER PC Date: ~ a ~~~ By: Gerard C. Kramer I.D. No. 80719 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this day of ~ 2010, I, Gerard C. Kramer, Esquire, do hereby certify that I ha served a true and correct copy of the PRAECIPE FOR WITHDRAW/ENTRY OF APPEARANCE in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Rebecca E. Jellen, Esquire Law Offices of Twanda Turner-Hawkins Iron Run Corporate Cenmter 7535 Windsor Drive, Suite 101-B Allentown, PA 18195 Adam L. Seiferth, Esquire Cipriani 8v Werner 1011 Mumma Road, Ste 201 Lemoyne, PA 17043-1145 0128270303.1 LAW OFFICES OF TWANDA TURNER-HAWKINS REBECCA E. JELLEN, ESQ. Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 iu'iLcl~-[~~ i= I~ ATTORNEY FOR DEFEt~A~`#h'~. F`~~' ~!t~~QTAP Trudy Nicklow DONALD L. WIMBUSH COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. NO. 09-6660 Civil Term TRUDY NICKLOW CERTIFICATE OF SERVICE I, Rebecca E. Jellen, Esquire, hereby certify that the Deposition Notice directed to Plaintiff, noting a deposition date of November 8, 2010, was served this date by United States Mail, First Class, postage prepaid, upon: Gerard C. Kramer ,Esquire 209 State Street Harrisburg, PA 17101 Date: Monday, October 04, 2010 01282-7030-3.1 LAW OFFICES OF TWANDA TURNER-HAWKINS REBECCA E. JELLEN, ESQUIRE Identification No. 87005 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5492 DONALD L. WIMBUSH V. TRUDY NICKLOW 3 me n1 ATTORNEY FOR DEFENDA N F off' Trudy Nicklow z CY ? c:) x? X F o COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-6660 Civil Term T WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Trudy Nicklow in reference to the above- captioned case. REBECCA E. JELLE ESQUIRE Rrt `l E0-O 01282-7030-3.1 ?ROT LAW OFFICES OF za?? ?uL 26 ?x TWANDA TURNER-HAWKINS ATT ,DEFENDANT KENNETH S. O'NEILL, ESQUIRE S lIdentification No. 80015 Iron Run Corporate Center 7535 Windsor Drive, Suite 101-B Allentown, PA 18195-1032 Telephone: (610) 398-5499 DONALD L. WIMBUSH V. TRUDY NICKLOW TO THE PROTHONOTARY: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-6660 Civil Term ENTRY OF APPEARANCE Please enter my Appearance on behalf of Trudy Nicklow in reference to the above- captioned case. C C KENNETH S. O'NEILL, ESQUIRE Attorney for Defendant Trudy Nicklow