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Home My WebLink About09-8411PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. 916654 PAUL M. SCHOFILED, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ERIE INSURANCE EXCHANGE AS SUBROGEE OF STANLEY KAUTZ P.O. BOX 2013 MECHANICSBURG, PA 17055 VS. PETER NIWAGABA 402 W. CRESTWOOD DRIVE, APT. C-7 CAMP HILL, PA 17011 AND RICHARD BYAMUGISHA 1521 ALLEN DRIVE MESQUITE. TX 75149 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. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 THIS IS AN ARBITRATION MATTER ATTORNEY FOR PLAINTIFF COMMON PLEAS COURT CUMBERLAND COUNTY NO. 6 ? 41M CIVIL COMPLAINT AVISO Le han demandado a usted an la corte. Si usted quiere defenderse de estas demandas expuestas an las paginas siguientes, usted tiene (20) dies de plazo a partir de Is fechs de Is demands y Is notification. Usted debe presenter una apariencia escrita o an persona o por abogado y archivar an Is corte sus defenses o sus objeciones a las demandas encontra de su persona. Sea avisado qua si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion o por cualgier queja o alivio qua espedido an Is petition de demands. sted puede perder dinero, sus propiedades o otros derechos importantes pars usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE USTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFILED, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF ERIE INSURANCE EXCHANGE AS SUBROGEE OF STANLEY KAUTZ P.O. BOX 2013 MECHANICSBURG, PA 17055 COMMON PLEAS COURT CUMBERLAND COUNTY VS. PETER NIWAGABA 402 W. CRESTWOOD DRIVE, APT. C-7 CAMP HILL, PA 17011 NO. AND RICHARD BYAMUGISHA 1521 ALLEN DRIVE MESQUITE, TX 75149 CIVIL COMPLAINT NOTICE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.U. §1601 (AS AMENDED) THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW, 73 PA.CON.STAT.ANN.§201, ET. SEQ. ("THE ACTS") IN AS MUCH AS THE ACTS MAY APPLY, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. The Plaintiff, Erie Insurance Exchange, by its attorney Paul F. D'Emilio, Esquire bring action upon a cause whereof the following is a statement: The Plaintiff. Erie Insurance Exchange ("Plaintiff'), is a corporation authorized to do business in the Commonwealth of Pennsylvania, having an mailing address of P.O. Box 2013, Mechanicsburg, PA 17055. Plaintiff brings this action as subrogee of Stanley Kautz, herein the ("Insured") under a policy of insurance issued by Plaintiff. 2. Defendant, Peter Niwagaba, is an individual residing at 402 W. Crestwood Drive, Apt. C7, Camp Hill, PA 17011. 3. Defendant, Richard Byamugisha, is an individual residing at 1521 Allen Drive, Mesquite, TX 75149. 4. At all times hereinafter mentioned Defendant Peter Niwagaba was the agent, workman, servant, employee of Defendant Richard Byamugisha then and there in engaged in the business of Defendant Richard Byamugisha within the course and scope of his employment. 5. On or about November 28, 2008, a motor vehicle owned by Defendant Richard Byamugisha and operated by Defendant Peter Niwagaba was traveling west across the Harvey Taylor Bridge approaching the off ramp for N. 2nd Street, Wormleysburg, Pennsylvania when he failed to negotiate the ramp turn and struck Plaintiffs Insured's front porch located at 502 N. 2nd Street causing the damages hereinafter set forth. 6. Plaintiff avers that the personal property of the Insured was damaged as a result of the occurrence hereinbefore mentioned, the reasonable costs of repairs thereto being is Twenty Thousand Seven Hundred Fifty Five and 114/100 ($20,755.11) Dollars plus the Insured's deductible of Five Hundred and 00/100 ($500.00) Dollars for a total of Twenty One Thousand Two Hundred Fifty Five and 11/100 ($21,255.11) Dollars. Count I Erie Insurance Exchange v. Peter Niwagaba 7. Plaintiff, incorporates by reference all the allegations contained in paragraphs 1 through 6 inclusive of this Complaint as fully as though same were herein and set forth at length. 8. The said occurrence was due to the negligence of Defendant, Peter Niwagaba, in that he: a. did fail to have the motor vehicle under proper and adequate control; b. did operate the motor vehicle at an excessive rate of speed; C. did fail to apply the brakes in time to avoid the collision; d. did negligently apply the brakes; e. did fail to operate the vehicle in accordance with existing conditions; f. did fail to drive at a speed and in the manner that would allow him to stop within the assured clear distance ahead; g. did fail to keep a reasonable lookout for other vehicles lawfully on the road; h. did operate the motor vehicle without due regards for the rights, safety and position of the Insured at the point of aforesaid; L did drive under the influence of alcohol and/or drugs; j. did operate the vehicle without Insurance; k. did fail to maintain financial responsibility; and did violate the various statutes and laws of the Commonwealth of Pennsylvania and County of Cumberland and Section 3802 of the Motor Vehicle Code, pertaining to the operation of motor vehicles. Count II Erie Insurance Exchange v. Richard Byamugisha 9. Plaintiff, incorporates by reference all the allegations contained in paragraphs 1 through 8 inclusive of this Complaint as fully as though same were herein and set forth at length. 10. The said occurrence was due to the negligence of Defendant, Richard Byamugisha, in that he: a. negligently entrusted his vehicle to another operator for use when he knew, or with a reasonable exercise of due care should have known, that the operator was not capable of operating the motor vehicle properly; b. negligently entrusted his motor vehicle to a person which he knew, or in the exercise of reasonable care should have known, was an incompetent driver; C. negligently entrusted his motor vehicle to a person known, should have known or in the exercise of reasonable care would have known, was going to drive the vehicle in an improper, dangerous or reckless manner; d. negligently entrusted his motor vehicle to another person who he knew, should have known or in the exercise of due care would have known would cause damages to another; e. negligently entrusted her motor vehicle to a person who he knew, should have known or in the exercise of due care would have known was under the influence of alcohol and/or drugs; and negligently entrusted his motor vehicle to a person who did not maintain financial responsibility as required by the laws of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff demands judgment against the Defendant upon each court in an amount not in excess of Fifty Thousand and 00/100 ($50,000.00) dollars together with costs of suit. Date Paul F. D'Emilio, Esquire Identification No. 16654 E-mail address: pauld _demiliolaw.com Paul M. Schofield, Jr., Esquire Identification No. 81894 E-mail address: pauls@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax no.: 610-338-0303 VERIFICATION , Subrogation Specialist with Erie Insurance Exchange in the above captioned matter verifies that the facts contained in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalites of 18 pa. C.S. Section 4904 relating to unsworn falsification to authorities. ?• f! 09 Date: - - Subrogation Specialist U OF THE GtI1?IBki?Atk C 1?! SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~~,,,,,, of t~a~i,~~r~~~~ -. . _ ~~:,~ ~ ~~' f~` i..:. Jody S Smith Chief Deputy Edward L Schorpp Solicitor LCIG J"~~ 26 I;~`~ L f ~ ~ f C~~~r~r_. ` .T~. J' . ( 9 E ~. ~~~ .. ~._-~ ~':. Erie Insurance Exchange vs. Peter Niwagaba Case Number 2009-8411 SHERIFF'S RETURN OF SERVICE 01/21/2010 01:15 PM -Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on January 21, 2010 at 1315 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Peter Niwagaba, by making known unto Jane Tiwdemwelswa, Adult in charge at 11 B Richland Lane Apt. 108, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $41.50 January 22, 2010 SO ANSWERS, ~~ R R ANDERSON, SHERIFF Deputy Shsriff ,c Ccun, SuilF She. `I', Tei~acsoft, in,~. PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFILED, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ERIE INSURANCE EXCHANGE AS SUBROGEE OF STANLEY KAUTZ VS. PETER NIWAGABA AND RICHARD BYAMUGISHA ATTORNEY FOR PLAINTIFF COMMON PLEAS COURT CUMBERLAND COUN~II' N o - ~ ~ ~' -~ ~ ~~~ ,~ --~ =~ ,~ NO. 09-8411 _ ~"~ ~' ~a ~ ~~ CIVIL COMPLAINT ~ .~, ~~ AFFIDAVIT MOTOR VEHICLE ACCIDENT I hereby certify that the Judgment debtor, Peter Niwagaba is the same person who is the Defendant in the Cumberland County Common Pleas Action No. 09-8411, which was a result of a motor vehicle accident on November 28, 2008 A EMILIO, ESQUIRE SWORN TO AND SUBSCRIBED BEFORE ME THI~rDAY OF~c~-~~' , 2010. OTARY PUBLIC COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL MELISSA O'NEILL, Notary Public Springfield Twp.. Delaware County ' ' n Beseml~r 6 ~Q11 ~~. oo Pp ai'-'~ e~ 13'1!0 0 ~~~5~5t3 ERIE INSURANCE EXCHANGE, Subrogee of STANLEY KAUTZ, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PETER NIWAGABA AND RICHARD BYAMUGISHA, DEFENDANTS 09 y0-8411 CIVIL TERM ORDER OF COURT AND NOW, this ?2 0 527 day of December, 2010, a Rule is issued on plaintiff to show cause why defendant, Peter Niwagaba, is not entitled to the relief requested. This Rule is returnable within twenty (20) days of this date. By the Court, Albert H. Masland, J. --- Paul F. D'Emilio, Esquire Paul M. Schofiled, Jr., Esquire For Plaintiff well R. Gates, Esquire For Peter Niwagaba :saa y t r " ryi ` rn.? ? T t rn? t l G?. Or r ) -' t ? FILED-OFFICE OF THE PROTHONOTARY PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 2011 j:° 17 CUM TY ATTORNEY FOR PLAINTIFF ERIE INSURANCE EXCHANGE AS COMMON PLEAS COURT SUBROGEE OF STANLEY KAUTZ CUMBERLAND COUNTY P.O. BOX 2013 MECHANICSBURG, PA 17055 VS. PETER NIWAGABA NO. 09-8411 402 W. CRESTWOOD DRIVE, APT. C-7 CAMP HILL, PA 17011 AND RICHARD BYAMUGISHA 1521 ALLEN DRIVE MESQUITE TX 75149 CIVIL COMPLAINT PLAINTIFF'S ANSWER IN OPPOSITION TO DEFENDANTS' PETITION TO OPEN JUDGMENT OF NON PROS Plaintiff by and through its counsel, the Law Office of Paul F. D'Emilio, LLC, files this instant answer in opposition to Defendants' petition to open judgment of Non Pros against Peter Niwagaba. In support thereof, Plaintiff offers the following: 1. Admitted in part, denied in part. It is admitted Defendant cites the correct rule regarding opening a Judgment of Non Pros, namely Pa.R.C.P. §3051, however, a check of the docket reveals a Judgment by Default, not a judgment of Non Pros was entered on March 5, 2010. It is denied that rule 3051 is applicable. Pa.R.C.P. § 237.3 governs relief from a default judgment. Defendant failed to satisfy the requirements of Rule 237.3, therefore relief should be denied. 2. Admitted. 3. Admitted in part, denied in part. Defendant correctly recites the standard to open a judgment of non pros. However, since rule 237.3 outlines the proper procedure it is denied compliance with Rule 3051 affords the Court an opportunity to grant relief in this matter. 4. Denied. Upon information and belief, Defendant understands English. Strict proof of the same, if applicable to the issue at hand, is demanded. 5. Denied. Upon information and belief, Defendant understood the pleadings he was given as Plaintiff complied with the requirements of due process as described by the rules of civil procedure in this Commonwealth. 6. Denied. Upon information and belief, Defendant understood the pleadings he was given as Plaintiff complied with the requirements of due process as described by the rules of civil procedure in this Commonwealth. 7. Denied. While a difficulty with language comprehension may be a consideration for a deadline extension, it is not an excuse for failure to timely petition the Court in light of the several notices sent by the Court and Plaintiff's counsel. The record is inadequate to show the Defendant's lack of English skills presented an extreme difficulty in understanding the significance of the legal documents served upon him. The Court noted in Kabanow v. Kabanow, language difficulties do not excuse a failure to timely file a petition to open. The Court insightfully noted, despite the weight given to a parties' difficulty in understanding the language, a six month failure to file a petition to open prevents the Court from granting relief Kabanow v. Kabanow, 239 Pa.Super. 23, 361 A.2d 721m (1976). 8. Denied. Defendant offers, without citation, the non precedential case of Contla v. Attorney General of the U.S. from the 3?d circuit Court of Appeals, to stand for the unilateral conclusory proposition that Defendant's language barrier offers a reasonable explanation for Defendant's failure to timely file this instant Petition. Contla v. Attorney General of the U.S. No. 09-2582. United States Court of Appeals, Third Circuit (2010). The law of this Commonwealth states that a Petition must be timely filed. There is nothing in the record of this case that leads to the conclusion this instant petition filed 8 2 i months after a Default Judgment as entered was promptly filed. 9. Denied. Again, rule 3051 is inapplicable to this matter. Rule 237.3 controls relief from a default judgment. Relief should be denied because the first requirement of rule 237.3 requires an attached verified copy of the answer which petitioner seeks to file. Defendant's proposed answer is conspicuously absent from this Petition. 10. Denied. Despite Defendant's averment to the contrary, upon information and belief Defendant, was-the driver of the automobile that struck the Plaintiff's insured's building. Witnesses identified Defendant as the driver and he was apprehended fleeing the scene with the license plate in his pocket. 11. Denied. Despite Defendant's averment involving a third party to the contrary, upon information and belief, Defendant was the driver of the automobile that struck the Plaintiff's insured's building. Witnesses identified Defendant as the driver and he was apprehended fleeing the scene with the license plate in his pocket. 12. Denied. Despite Defendant's averment to the contrary, upon information and belief, Defendant was the driver of the automobile that struck the Plaintiff's insured's building. Witnesses identified Defendant as the driver and he was apprehended fleeing the scene with the license plate in his pocket. 13. Admitted. There was no finding on the merits. Upon information and belief the Commonwealth's witnesses were unavailable at the time of the trial and further, the Magistrate Court's ruling does not serve as res judicata. 14. Admitted in part, denied in part. Plaintiff admits it made numerous allegations in its complaint. The remainder of the averment is denied as Plaintiff is, after reasonable investigation, without sufficient information to judge the veracity of the statement, therefore the statement is denied. 15. Admitted in part, denied in part. Plaintiff admits it made numerous allegations in its complaint. The remainder of the averment is denied as Plaintiff is, after reasonable 3 i' investigation, without sufficient information to judge the veracity of the statement, therefore the statement is denied. Date: December 28, 2010 ,raui ivi. ocnorieia, ir., Esquire 4dentification No.: 81894 e-mail address: pauls@demiliolaw.com Paul F. D'Emilio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303 4 ERIE INSURANCE EXCHANGE, IN THE COURT OF COMMON PLEAS OF Subrogee of STANLEY KAUTZ, CUMBERLAND COUNTY, PENNSYLVAN* PLAINTIFF r-n? V rn- . ?a N -vrM MC) PETER NIWAGABA AND ?o RICHARD BYAMUGISHA, ?yam 3 o-n DEFENDANTS 09-8411 CIVIL TERM >= N "m IN RE: MEMORANDUM OPINION AND ORDER OF COURT- > Masland, J., January 21, 2011:-- Before the court is the petition to open judgment of non pros filed by Defendant, Peter Niwagaba. Upon consideration of Plaintiffs petition and Defendant's answer, the petition is denied. To be successful, a petition to open a judgment must meet the following test: the petition must be promptly filed; the party seeking relief must show a meritorious defense; and, the failure to appear or file a timely answer must be excused. Cintas Corp. v. Lee's Cleaning Serv., Inc., 549 Pa. 84, 700 A.2d 915 (1997). Here, Defendant fails the first portion of the test as he did not promptly file his petition to open. The petition was filed eight months after the entry of default judgment and Defendant's only excuse for late filing is his inability to understand English. Unfortunately, our Superior Court has already rejected this excuse on very similar facts. In Kabanow v. Kabanow, 361 A.2d 721 (Pa. Super. 1976), the Superior Court affirmed the trial court's determination that a language barrier could not justify a six month delay in filing a petition to open a default judgment. E 09-8411 CIVIL TERM Id. at 722-23. We reach the same conclusion here and deny Defendant's petition. ORDER OF COURT AND NOW, this/ day of January, 2011, the petition to open judgment of non pros filed by Defendant, Peter Niwagaba is DENIED. By the Court, Albert H. Masland, J. Paul F. D'Emilio, Esquire Paul M. Schofiled, Jr., Esquire For Plaintiff 'Lowell R. Gates, Esquire For Peter Niwagaba saa ,e's Mai led cppt 1141)11 o1B -2-