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HomeMy WebLinkAbout10-2987SHAWANDA LEDBETTER and : IN THE COURT OF COMMON PLEAS OF GREG LEDBETTER, her husband, and : CUMBERLAND COUNTY, PENNSYLVANIA CHARLES D. ROOP, Plaintiffs . V. 2010-,1997 CIVIL TERM TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, CIVIL ACTION - LAW Defendants . PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons against the defendants, TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, and enter my appearance on behalf of the plaintiffs, SHAWANDA LEDBETTER, GREG LEDBETTER and CHARLES D. ROOP. Please direct the Sheriff to serve the defendant as follows: Terry Kay Moran Central Refrigerated Services n N P. O. Box 295155 5175 West 2100 South Lewisville, TX 75029 Salt Lake City, UT 84120 Respectfully submitted, I IRWIN & Mc HT, P.C.' C:.' By: -c arcus A. c igh I, Esquire 60 West Po fret Street, Carlisle, PA 17013 (717) 249- 353 Supreme Court I.D. No: 25476 May 5, 2010 To: TERRY KAY MORAN AND CENTRAL REFRIGERATED SERVICES You are hereby notified that, plaintiffs, SHAWANDA LEDBETTER, GREG LEDBETTER and CHARLES D. ROOP have commenced an action against you which you are required to defend or a default judgment may be entered against you. -- - / ?? PROTHONOTARY B . DE TY Date: if , 2010 Utz {?? (<d' lie Mr 7- aLr1s9T SHAWANDA LEDBETTER and GREG LEDBETTER, her husband, and CHARLES D. ROOP, Plaintiffs v. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA a v CIVIL AC"PION LAW m~ ~, am ~' ~~, ~ ~~ y , `< = _ ~ ~' ~c= w ~ Yi-I? z} _. x+ ~ ~m NO. 2010- 2987 CIVIL TERM ~~' ~ ? ---, .. N PRAECIPE FOR ENTRY OF APPEARANCE Please enter our appearance on behalf of Defendants Terry Kay Moran and Central Refrigerated Service, Inc. in the above-captioned matter. McNEES WALLACE & NURICK LLC By-- Dated: May 11, 2010 'Kandice J. rintano Attorney I o.: 86345 James J. Franklin Attorney Id No.: 306458 l 00 Pine Street, P.O. Box 1 I66 Harrisburg, PA 17108-I 166 (717) 232-8000 Attorneys for Defendants Terry Kay ~bloran and Central Refrigerated Service, Inc. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served this 11th day of May, 2010 via first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 _ ~_ ___ andice J. Giu~ tano T SHAWANDA LEDBETTER and : IN THE COURT OF COMMON PLEAS OF GREG LEDBETTER, her husband, : CUMBERLAND COUNTY, PENNSYL VANIA CHARLES D. ROOP, PLAINTIFFS V NO 2011) - 2987 CIVIL TERME3 o - . . _ TERRY KAY MORAN and • rncv CIVIL ACTION - LAW -0 'rrn ' C- =In rn- CENTRAL REFRIGERATED c"zr , w -rn? SERVICES, o z o DEFENDANTS zo ` DC W C)o NOT ICE TO DEFEND -f N V -C You have been sued in court. If yo u wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order 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 money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 SHAWANDA LEDBETTER and GREG LEDBETTER, her husband, CHARLES D. ROOP, PLAINTIFFS V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2987 CIVIL TERM CIVIL ACTION - LAW COMPLAINT AND NOW, this 30th day of June 2011 comes the Plaintiff, SHAWANDA LEDBETTER, by her attorneys, Irwin & McKnight, P.C., and makes the following Complaint against the defendants, TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES: 1. The Plaintiff is Shawanda Ledbetter, an adult individual residing at 13220A Moffett Road, Wilmer, Alabama 36587. 2. The Defendant, Terry K. Moran, is an adult with the most recent address of P. O. Box 29155, Lewisville, Texas 75029. 3. The Defendant, Central Refrigerated Services is a trucking business with an address of 5175 West 2100 South, Salt Lake City, Utah 84120. 3 4. On June 7, 2008 at approximately 3:06 p.m., the Plaintiff, Shawanda Ledbetter was a passenger in 2006 International tractor and trailer. Plaintiff, Charles D. Roop, was seated in the driver's seat of said truck. They were both wearing seatbelts. 5. The Plaintiffs, Shawanda Ledbetter and Charles D. Roop, were parked facing north preparing to exit the parking lot located at the PETRO Stopping Center, 1201 Harrisburg Pike, Carlisle, Pennsylvania 17013. 6. The Defendant, Terry Kay Moran, with an address of P. O. Box 295155, Lewisville Texas 75029 was the driver of 2008 Volvo tractor and trailer. 7. The Defendant, Central Refrigerated Services, owned the 2008 Volvo tractor and trailer driven by the Defendant, Terry Kay Moran. 8. The Defendant, Terry Kay Moran, was traveling west in the parking lot and made a left turn when he struck Plaintiff's truck scraping the side of the trailer as well as causing moderate damage to the front outside tire and rim, driver's side front bumper, wheel well, and headlight assembly. 9. The Plaintiff, Shawanda Ledbetter, was transferred by ambulance to Carlisle Regional Medical Center for evaluation and treatment of severe injuries to her neck and back. 4 10. The accident and injuries sustained by the Plaintiff were caused by the negligent, careless and reckless actions of the Defendant, Terry Kay Moran. 11. The Defendant, Terry Kay Moran, was cited for careless driving by the Pennsylvania State Police. 12. The accident occurred without warning due to the inattention and poor judgment of the Defendant, Terry Kay Moran. 13. The Defendant was negligent and careless as follows: a. He failed to maintain his vehicle under proper control in an effort to avoid a collision; b. He was not paying attention to other vehicles in the parking lot; C. He was travelling too fast in the parking lot; and d. He failed to provide to the Plaintiff any warning of the pending collision. 14. The Plaintiff seeks compensation for the pain and suffering, medical bills, lost wages, emotional distress, and loss of life's pleasures and permanent injuries sustained in the accident as well as compensation for future losses she will incur in these areas from the Defendant. 15. The Defendant, The Defendant, Terry Kay Moran, was acting in the course of his employment as an agent of Defendant, Central Refrigerated Services and said Central 5 Refrigerated Services is liable for the negligent and reckless actions of its agent. The Defendants are liable for punitive damages to the Plaintiffs. 16. The Plaintiff, Shawanda Ledbetter, seeks punitive damages from the Defendants. 17. The Plaintiff seeks compensation for the medical expenses and any lost wages which she has incurred and may incur in the future to treat her injuries as a result of the injuries she sustained in the accident. 18. The Plaintiff also seeks compensation for the serious and permanent injuries which she has sustained which has caused extensive pain and suffering. WHEREFORE, the Plaintiffs request compensatory and punitive damages from the Defendants, Terry Kay Moran and Central Refrigerated Services., in the amount in excess of Fifty Thousand and no/100 ($50,000.00) Dollars with interest as permitted by law and the costs of this litigation. Respectfully submitted, IRWIN & NXKNIGHT, P.C. By: Maros A. Mcbt, III, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for plaintiff Date: June 30, 2011 6 VERIFICATION The foregoing document is based upon information which has been gathered by counsel for the plaintiff in the preparation of this document. To the extent that the document is based upon information which has been gathered by counsel, it is true and correct to the best of the counsel's knowledge, information and belief. The undersigned is verifying on behalf of the petitioner according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. Marcus Date: June 30, 2011 7 SHAWANDA LEDBETTER and GREG LEDBETTER, her husband, CHARLES D. ROOP, PLAINTIFFS V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2987 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Kimberly A. Selemba McNees Wallace & Nurick, LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 IRWIN & P.C. By: Marcus A. McKnight, II, s 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: June 30, 2011 8 EiLED-Qf 4 Ii: 14 i E PRQTHOt?P r" 5 f-01I JUL 20 AM 11: 06 2 OU PENNSYLVA? A3I ` Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants SHAWANDA LEDBETTER and GREG LEDBETTER, her husband, and CHARLES D. ROOP, Plaintiffs : V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 2010- 2987 CIVIL TERM DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants, Terry Kay Moran ("Moran") and Central Refrigerated Services ("CRS") (collectively, the "Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, hereby submit the following Preliminary Objections to the Complaint filed by Plaintiffs Shawanda Ledbetter ("Mrs. Ledbetter"), Greg Ledbetter ("Mr. Ledbetter"), and Charles D. Roop ("Roop") (collectively, the "Plaintiffs"). In support thereof, Defendants aver as follows: 1. This case arises from an alleged injury to Plaintiff Mrs. Ledbetter caused by a low-speed impact between tractor-trailers on or about June 7, 2008. See Complaint, T 4, 5. 2. The injury allegedly occurred while Plaintiffs Mrs. Ledbetter and Roop were at the PETRO Stopping Center ("PETRO"), located at 1201 Harrisburg Pike, Carlisle, Pennsylvania, 17013. See Complaint, ¶ 5. 3. On or about May 5, 2010, Plaintiffs commenced this action by filing a Praecipe for Issuance of a Writ of Summons against Defendants. 4. On April 18, 2011, the Prothonotary issued a Rule to File Complaint to Plaintiffs. 5. On or about June 30, 2011, Plaintiffs filed their Complaint against Defendants. 6. The Complaint alleges that Mrs. Ledbetter and Roop were seated in a parked tractor-trailer in the PETRO parking lot at the time of the accident. See Complaint, ¶ 4. 7. Plaintiffs aver that Mrs. Ledbetter was in the passenger seat in the tractor- trailer and Roop was in the driver's seat. Id. 8. Both Mrs. Ledbetter and Roop were wearing seatbelts at the time of the accident. Id. -2- 9. The Complaint does not contain any averments or other information identifying Mr. Ledbetter's involvement or connection with the accident or this litigation. See Complaint. 10. The Complaint alleges that Defendant Moran was operating a tractor- trailer that impacted Mrs. Ledbetter and Roop's tractor-trailer. See Complaint, ¶ 8. 11. The Complaint states that Defendants' tractor-trailer was "scraping the side" of Mrs. Ledbetter and Roop's trailer and caused "moderate damage" to the front, driver's side portion of the tractor. Id. 12. According to the Middlesex Township Police Department's Incident Investigation Report, "[t]he damage indicate[d] that [Defendants' tractor-trailer] was not traveling too fast as he would have caused much more severe damage if he were." See Exhibit A. 13. Mrs. Ledbetter claims that she suffered injuries as a result of the accident. See Complaint, ¶ 9. 14. The Complaint does not identify any injuries or damages Roop suffered as a result of the accident. See Complaint. 15. The Complaint does not identify any injuries or damages Mr. Ledbetter suffered as a result of the accident. See Complaint. 16. The Complaint does not identify the causes of action Plaintiffs are asserting. See Complaint. 17. The language of the Complaint, however, appears to assert only a single cause of action for negligence. See Complaint. -3- 18. In support of her negligence allegation, Mrs. Ledbetter avers that the injuries she sustained "were caused by the negligent, careless and reckless actions of the Defendant, Terry Kay Moran." See Complaint, ¶ 10. 19. Paragraph 13 of the Complaint contains subparagraphs that include allegations of negligence and carelessness against Defendant Moran. Those averments include: a. He failed to maintain his vehicle under proper control in an effort to avoid a collision; b. He was not paying attention to other vehicles in the parking lot; C. He was traveling too fast in the parking lot; and, d. He failed to provide to the Plaintiff any warning of the pending collision. See Complaint, ¶ 13. 20. Based upon the aforementioned acts of alleged negligence and carelessness, Plaintiffs' Complaint includes a demand for punitive damages against Defendants. See Complaint, ¶ 15-16, ad damnum clause. 21. The Complaint does not identify or include any other causes of action. See Complaint. FIRST PRELIMINARY OBJECTION - PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE ALL CLAIMS BY PLAINTIFF ROOP AGAINST DEFENDANTS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER 22. Defendants incorporate Paragraphs 1 through 21 of their Preliminary Objections as if set forth in full. -4- 23. Under Pa.R.C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 24. Although not formally titled in the Complaint, Plaintiffs' Complaint only includes one cause of action: an action for negligence. 25. The Complaint identifies Roop as a Plaintiff. 26. Therefore, in order to succeed on a negligence claim, Roop must be able to establish the elements of the cause of action. 27. To prove a negligence claim, Roop must establish: (1) a duty owed to him by Defendants; (2) a breach of that duty; (3) causation, including proximate causation, between the breach of duty and resulting injury; and (4) injury to Roop. Eckroth v. Pennsylvania Elec., Inc., 12 A.3d 422 (Pa. Super. 2010). 28. Other than averring that Roop was seated in the driver's seat of the tractor-trailer, the Complaint does not contain any allegations referencing or stating Roop's involvement in the subject matter of this lawsuit. 29. Notably, the Complaint does not identify any injuries or damages Roop suffered as a result of the accident, nor does it claim that Roop suffered any such damages or injuries. 30. The Complaint only alleges that "Plaintiff, Shawanda Ledbetter" suffered any injuries and/or damages. See Complaint, 19-10, 14, 16-18. 31. From the plain language of the Complaint, Mrs. Ledbetter is the only Plaintiff that has asserted a cause of action against Defendants. -5- 32. The Complaint does not even contain Roop's basic information, such as his residential address. 33. Because Roop does not allege he suffered any injuries or that Defendants were the proximate cause of such injuries, he has failed to plead the elements necessary to maintain a cause of action for negligence. 34. Roop is thus legally incapable of maintaining a cause of action for negligence against Defendants based on the averments in the Complaint. 35. Roop does not assert any other cause of action against Defendants. 36. Accordingly, Roop is not a proper Plaintiff in this matter. 37. In the ad damnum clause, however, Plaintiffs - thus including Roop - request compensatory and punitive damages from Defendants. 38. The Court must strike this demand and dismiss Roop's claim for negligence against Defendants. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Services request that the Court sustain their Preliminary Objections, and dismiss Charles D. Roop as a plaintiff in this litigation and strike all claims Roop asserts against them. SECOND PRELIMINARY OBJECTION - PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE ALL CLAIMS BY PLAINTIFF GREG LEDBETTER AGAINST DEFENDANTS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER 39. Defendants incorporate Paragraphs 1 through 21 of their Preliminary Objections as if set forth in full. 40. Although not formally titled in the Complaint, Plaintiffs' Complaint only includes one cause of action, which is an action for negligence. -6- 41. The Complaint does not include a cause of action for loss of consortium. 42. The Complaint identifies Mr. Ledbetter as a Plaintiff. 43. In order to succeed on a negligence claim, Mr. Ledbetter must be able to establish the elements of the cause of action. 44. To prove a negligence claim, Mr. Ledbetter must establish: (1) a duty owed to him by Defendants; (2) a breach of that duty; (3) causation, including proximate causation, between the breach of duty and resulting injury; and (4) injury to Mr. Ledbetter. Eckroth v. Pennsylvania Elec. Inc., 12 A.3d 422 (Pa. Super. 2010). 45. The Complaint does not contain any allegations referencing or stating Mr. Ledbetter's involvement in the subject matter of this lawsuit. 46. Notably, the Complaint does not identify what duty Defendants owed to Mr. Ledbetter, how Defendants breached any such duty, any injuries or damages Mr. Ledbetter suffered as a result of the accident, or how Defendants proximately caused such damages or injuries. 47. The Complaint only alleges that "Plaintiff, Shawanda Ledbetter" suffered any injuries and/or damages. See Complaint, ¶ 9-10, 14, 16-18. 48. From the plain language of the Complaint, Mrs. Ledbetter is the only Plaintiff that has asserted a cause of action against Defendants. 49. The Complaint does not even contain Mr. Ledbetter's basic information, such as his residential address. 50. Mr. Ledbetter is only identified in the Complaint's caption as Shawanda Ledbetter's husband. See Complaint. -7- 51. This information is not legally sufficient to maintain a cause of action for negligence. 52. Because Mr. Ledbetter does not allege Defendants owed him any duty of care, that Defendants breached any duty of care, that he suffered any injuries, or that Defendants were the proximate cause of such injuries, he has failed to plead the elements necessary to maintain a cause of action for negligence. 53. Mr. Ledbetter is thus legally incapable of maintaining a cause of action for negligence against Defendants based on the averments in the Complaint. 54. Mr. Ledbetter does not assert any other cause of action against Defendants. 55. Accordingly, Mr. Ledbetter is not a proper Plaintiff in this matter. 56. In the ad damnum clause, however, Plaintiffs - thus including Mr. Ledbetter - request compensatory damages from Defendants. 57. The Court must strike this demand and dismiss Mr. Ledbetter's claims for negligence against Defendants. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Services request that the Court sustain their Preliminary Objections, and dismiss Greg Ledbetter as a plaintiff in this litigation and strike all claims Mr. Ledbetter asserts against them. -8- THIRD PRELIMINARY OBJECTION - PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE ALL CLAIMS BY PLAINTIFFS CHARLES D. ROOP AND GREG LEDBETTER AGAINST DEFENDANTS PURSUANT TO PA.R.C.P. 1028(a)(2) & (a)(3) FOR FAILURE OF THE COMPLAINT TO CONFORM TO LAW OR RULE OF COURT AND INSUFFICIENT SPECIFICITY 58. Defendants incorporate Paragraphs 1 through 21 of their Preliminary Objections as if set forth in full. 59. Rule 1028(a)(2) of the Pennsylvania Rules of Civil Procedure permits a party to file preliminary objections for failure of a pleading to conform to law or rule of court. Pa.R.C.P.1028(a)(2). 60. Rule 1028(a)(3) of the Pennsylvania Rules of Civil Procedure permits a party to file preliminary objections for insufficient specificity in a pleading. Pa.R.C.P. 1028(a)(3). 61. Pa.R.C.P. 1019 requires that complaints set forth the material facts of the claim in concise detail to advise the other party of the factual allegations surrounding the claim and to afford the other party a sufficient opportunity to prepare its defense. 62. In Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983), the Pennsylvania Supreme Court stated, in relevant part: FN3. If appellee did not know how it "otherwise fail[ed] to use due care and caution under the circumstances," it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants' complaint. Id. at 602 n.3. -9- 63. The Court in Connor also held that catch-all phrases such as "otherwise failing to use due care and caution under the circumstances," while too indefinite to apprise the defendant of what conduct allegedly constituted negligence, allowed the plaintiff to change his theory of liability after the running of the statute of limitations where the defendant failed to file a preliminary objection to the insufficient specificity of the pleading. Id. 64. "Since Connor, defendants have been understandably wary of any language in a complaint which might later sandbag them during the pleadings, during discovery, in obtaining expert opinions, or during the trial itself." Medina v. Hershey Medical Center, 4 Pa. D.& C. 5th 526, 531 (Dauphin County 2008). 65. Trial courts applying Connor also have expressed concern about complaints containing general allegations of negligence that could potentially be amplified by later amendments. Courts have recognized that "[a]s a result of Connor, defendants are properly concerned about unidentified allegations of negligence arising late in the litigation process flowing out of a general allegation of negligence raised early in the process." Clarkson v. Geisinger Med. Ctr., 46 D. & C. 4th 431, 2000 WL 1912062, *1 (C.P. Montour 2000). 66. "Connor has been used by the Pennsylvania courts to preclude general allegations in complaints. Connor stands for the proposition that general averments in a complaint should be remedied by preliminary objections." Lee v. Denner, 76 Pa. D. & C. 4th 181, 190 (Monroe Co. 2005); see also Boyd v. Somerset Hosp., 24 -10- D. & C. 4th 564, 566-68 (C.P. Somerset 1993) (citing Gray v. Oech, 49 D. & C. 2d 358 (C.P. Bucks 1970)). 67. Averments such as failure to provide the requisite degree of care or failing to uphold the proper standard of care required to assure the plaintiffs safety are too general, fail to reference specific facts, and must be stricken with leave to amend to include the necessary specific facts. Clarkson, 2000 WL 1912062 at *1-2; see also Boyd v. Somerset Hosp., 24 D.&C. 4th 564, 566-68 (C.P. Somerset 1993). 68. Discovery is not a substitute for proper pleading of the material or ultimate facts. Boyd, 24 D.&C. 4th at 567. 69. In this case, the Complaint fails to identify any material facts with respect to Mr. Ledbetter, including his involvement in the subject matter of this litigation and any injuries or damages he suffered as the result of the accident. 70. Other than the allegation that Roop was seated in the driver's seat of the tractor, the Complaint also fails to identify any material facts with respect to Roop, including his involvement in the subject matter of this litigation and any injuries or damages he suffered as the result of the accident. 71. The Complaint does not specify what, if any, claims Roop and Mr. Ledbetter are asserting against Defendants. 72. Therefore, without any allegations to identify and limit Roop and Mr. Ledbetter's claims against Defendants, the Complaint opens the door to a limitless number of theories that could later be asserted by Roop and Mr. Ledbetter as to how, specifically, Defendants caused their injuries. This type of pleading fails to apprise -11- Defendants of the facts at issue and flies in the face of the pleading requirements of Rule 1028(a)(2)-(3). See Pa.R.C.P. No. 1028(a)(2)-(3). 73. As drafted, the Complaint violates Pa.R.C.P. 1019 and the standards set forth in Connor because the Complaint fails to identify and plead specific facts to support any cause of action, if any, which may be asserted by Roop and Mr. Ledbetter. 74. The averments of the Complaint create a risk that Roop and/or Mr. Ledbetter could add to or alter the factual and legal basis of their alleged claims after the running of the statute of limitations. 75. Accordingly, the Court should strike any paragraphs of the Complaint asserting a claim on behalf of Roop and/or Mr. Ledbetter and dismiss them as Plaintiffs in this litigation, or, in the alternative, require Roop and Mr. Ledbetter to replead to add the specific facts that support their claims against Defendants, including but not limited to their claims for negligence as set forth in the Complaint. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Services request that the Court sustain their Preliminary Objections, and strike any paragraphs of the Complaint asserting a claim on behalf of Charles D. Roop and Greg Ledbetter and dismiss them as Plaintiffs in this litigation, or, in the alternative, Terry Kay Moran and Central Refrigerated Services request this Court order Charles D. Roop and Greg Ledbetter to replead within twenty days and to allege the specific facts, if any, that identify and support their claims against Defendants, including but not limited to, specific averments of negligence and standard of care. -12- FOURTH PRELIMINARY OBJECTION - PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES AGAINST DEFENDANTS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER 76. Defendants incorporate Paragraphs 1 through 75 of their Preliminary Objections as if set forth in full. 77. Under Pa.R.C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 78. In the ad damnum clause and in Paragraphs 15-16 of their Complaint, Plaintiffs demand an award of punitive damages. See Complaint, ad damnum clause and ¶¶ 16-17. 79. In addition to Defendants' Preliminary Objections set forth above, Defendants assert that Plaintiffs' claim for punitive damages is legally insufficient as Plaintiffs have pleaded no basis in fact or in law which would entitle them to recover punitive damages. 80. Punitive damages are available, under Pennsylvania law, only where torts are committed willfully, maliciously, or with wanton disregard of the rights of the injured party. -13- 81. Plaintiffs have not alleged any willful, malicious, or wanton conduct by Defendants that would permit an award of punitive damages as to their claims. 82. To the contrary, Plaintiffs contend the "accident occurred without warning due to the inattention and poor judgment of the Defendant." See Complaint, ¶ 12 (emphasis added). 83. Allegations of inattention and poor judgment are not sufficient to maintain a claim for punitive damages. 84. There is no legally sufficient basis for Plaintiffs' claim for punitive damages. 85. Plaintiffs' demand for the award of punitive damages should be stricken from their Complaint. 86. Accordingly, in the event that this Court does not dismiss Plaintiffs' Complaint in its entirety, this Court should strike the claim for punitive damages in the Complaint, as such claim is legally insufficient. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Services respectfully request that this Court sustain their Preliminary Objections and strike Plaintiffs' demand for punitive damages asserted in the ad damnum clause and in Paragraphs 16-17 of the Complaint, based on legal insufficiency/demurrer pursuant to Pa.R.C.P. No. 1028(a)(4). -14- FIFTH PRELIMINARY OBJECTION - PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE VERIFICATION PURSUANT TO PA.R.C.P. 1028(a)(2) FOR FAILURE OF THE VERIFICATION TO CONFORM TO LAW OR RULE OF COURT 87. Defendants incorporate Paragraphs 1 through 86 of their Preliminary Objections as if set forth in full. 88. Rule 1028(a)(2) of the Pennsylvania Rules of Civil Procedure permits a party to file preliminary objections for failure of a pleading to conform to law or rule of court. Pa.R.C.P. 1028(a)(2). 89. Attached to Plaintiffs' Complaint was a verification. See Complaint. 90. The verification was executed by Plaintiffs' counsel. See Complaint. 91. Pursuant to Rule 1024(c)(2) of the Pennsylvania Rules of Civil Procedure, a party's attorney make execute a verification in place of his clients. Pa.R.C.P. 1024(c)(2). 92. In such cases, however, the verification must state the reason why the verification is not made by the parties themselves. Pa.R.C.P. 1024(c)(2). 93. The verification attached to the Complaint does not state a reason why the verification is not made by Plaintiffs. See Complaint. 94. Moreover, the verification states that Plaintiffs' counsel is verifying the Complaint on behalf of "the petitioner." See Complaint. 95. The Complaint, however, was filed on behalf of three individual Plaintiffs. 96. Accordingly, each Plaintiff must separately verify the averments contained in the Complaint, or, in the alternative, such verification must be made on behalf of each -15- and every Plaintiff, specifically stating the reason why the verification is not being executed by the Plaintiffs themselves. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Services request that the Court sustain their Preliminary Objections, strike Plaintiffs' verification of the Complaint, and order Plaintiffs to file a substitute verification that conforms with the requirements of Rule 1024 of the Pennsylvania Rules of Civil Procedure. McNEES WALLACE & NURICK LLC By Kandic J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: July 19, 2011 Attorneys for Defendants -16- CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 - ?jjo. AL Kimberly/A. Selemba Date: July 19, 2011 cv(k PRAECIPE FOR LISTING CASE FOR ARGUMENT +' (Must be typewritten and submitted in triplicate) H'- FIR 0 T HON0TAR Y TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matt-pr,+t?1 L ? PM 2. 32 Argument Court.) October 7, 2011 I T --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE IN THE COURT OF COMMON PLEAS, CUMBERLAND COUI4WM3ERLAND COUNTY (entire caption must be stated in full) PENNSYLVANIA SHAWANDA LEDBETTFIZ and GREG L1-DBFTT1iR, her husband, and CHARLES D. ROOP, vs. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES No. 2010-2987 CIVII. Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Marcus A. McKnight, III, Esquire (Name and Address) Irwin & McKnight, P.C., 60 West Pomfret Street, Carlisle, PA 17013 (b) for defendants: James J. Franklin, Esquire (Name and Address) McNees Wallace & Nurick LLC, 100 Pine Street, Harrisburg, PA 17101 1 1 will notify all parties in writing within two days that this case has been listed for argument. James J. Franklin, Esquire 4. Argument Court Date: October 7, 201 1 6rature James J. Franklin Print your name Defendants Date: Attorney for 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. CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 James J. Franklin Date: August 11, 2011 N1 SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 2010-2987 CIVIL TERM PRAECIPE TO SUBSTITUTE VERIFICATION AND REMOVE NAMED PLAINTIFFS AS PARTIES To David Buell, Prothonotary: Please remove as Plaintiff parties from this action, CHARLES D. ROOP and GREG LEDBETTER. Please substitute the Verification to the Complaint of SHAWANDA LEDBETTER. Respectfully submitted, By: October 5, 2011 IRWIN & McKNIGHT, P.C. Marcus AC McKni Meeiisle, Esquire 60 West Pomfret S PA 17013 (717) 249-2353 Supreme Court I.D. No: 25476 Z rn C-) - -r um CD 3 `D t C W r; N a?ka R.w-,--A aI-kA #-7 9S 9? VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. SHAWANDA LEDBETTER Date: October 4, 2011 7 F I L E 0 - 0 F 1 4 THE PiM p MD ? F.,.; . . Kandice J. Giurintano I.D. No. 86345 Kimberly A. Selemba I . D. No. 93535 James J. Franklin I. D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 1011 OCT -6 PM 3: P 8 CUMBERLAND COIJI ?ENNSYLVANI P. Attorneys for Defendants SHAWANDA LEDBETTER and IN THE COURT OF COMMON PLEAS OF GREG LEDBETTER, her husband, and CUMBERLAND COUNTY, CHARLES D. ROOP, PENNSYLVANIA Plaintiffs V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants : CIVIL ACTION LAW NO. 2010- 2987 CIVIL TERM STIPULATION AND NOW, come the parties, by and through their attorneys, who state: 1. Plaintiffs, Shawanda Ledbetter, Greg Ledbetter, and Charles D. Roop, filed a Complaint alleging negligence against Defendants Terry Kay Moran and Central Refrigerated Services. 2. Defendants filed Preliminary Objections to the Complaint pursuant to Pa. R. C. P. 1028(a)(2)-(4). 3. The Parties have reached an agreement regarding Defendants' Preliminary Objections. 4. The Parties agree Greg Ledbetter and Charles D. Roop are hereby dismissed with prejudice as Plaintiffs in the above-captioned action. i t 5. Paragraph sixteen (16) and all other claims for punitive damages are stricken from the Complaint. 6. Within ten (10) days of the date of this Stipulation, Plaintiff Shawanda Ledbetter shall file her personal verification to the Complaint. 7. Defendants will answer the Complaint, as amended by this Stipulation, within twenty (20) days from the date of this Stipulation. 8. Defendants' Preliminary Objections to Plaintiffs' Complaint are now moot and will be withdrawn by Defendants. 9. The correct caption in this matter shall now read as follows: SHAWANDA LEDBETTER IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants CIVIL ACTION LAW : NO. 2010- 2987 CIVIL TERM Respectfully submitted, IRWIN & By. Marglu". c 1.1 . 0.25 6 60 West Po fr( Carlisle, Penns,, (717) 249-2353 Attorneys for Plaintiff Date: October q, 2011 P.9.. McNEES WALLACE & NURICK LLC By III, Esquire Kandice J. Giurintano, Esquire I.D. No. 86345 ;et James J. Franklin, Esquire a 17013 I.D. No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants -2- Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 CoUti, f `I.•. S YL'!A ` !A Attorneys for Defendants SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION LAW TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants NO. 2010- 2987 CIVIL TERM 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 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes p6ginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s 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 mfis 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 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 McNEES LLACE & LLC By ? andice J-"Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: October 21, 2011 Attorneys for Defendants -2- Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION LAW NO. 2010- 2987 CIVIL TERM ANSWER WITH NEW MATTER Defendants, Terry Kay Moran ("Moran") and Central Refrigerated Service, Inc. ("CRS") (collectively, the "Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, submit the following Answer with New Matter to Plaintiffs Complaint, as amended by Stipulation dated October 4, 2011. 1. Admitted in part and denied in part. Defendants admit Shawanda Ledbetter ("Plaintiff') is identified as the Plaintiff in the above-captioned matter. After reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the remaining averments in Paragraph 1, and the same are therefore denied. Further answering, on October 4, 2011, subsequent to Defendants' Preliminary Objections, the parties executed a Stipulation ("Stipulation") amending the Complaint. Pursuant to the Stipulation, Greg Ledbetter and Charles D. Roop ("Roop") were dismissed with prejudice as named Plaintiffs and all claims and references to punitive damages were stricken from the Complaint. Defendants herein answer the Complaint as amended by the Stipulation. 2. Admitted. 3. Admitted. 4-5. Denied. The averments of Paragraphs 4 and 5 are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). To the extent a response is required, after reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the averments in Paragraphs 4 through 5, and the same are therefore denied. Further answering, pursuant to the Stipulation executed by the parties on October 4, 2011, Charles D. Roop was dismissed with prejudice as a named Plaintiff, and all claims and references to punitive damages were stricken. 6. Admitted. 7. Admitted. 8-18. Denied. The averments of Paragraphs 8 through 18 are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). To the extent a response is required, after reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the averments in Paragraphs 8 through 18, and the same are therefore denied. Further answering, pursuant to the Stipulation executed by the parties -2- on October 4, 2011, Charles D. Roop was dismissed with prejudice as a named Plaintiff, and all claims and references to punitive damages were stricken. WHEREFORE, Defendants, Terry Kay Moran and Central Refrigerated Service, Inc. request judgment in their favor and against Plaintiff Shawanda Ledbetter together with an award of costs and such other relief as this Court deems appropriate. NEW MATTER 19. Defendants incorporate herein by reference Paragraphs 1 through 18, above, of their Answer with New Matter. 20. Plaintiff and Roop were in a 2006 International tractor-trailer ("Roop's Vehicle") at the time of the accident giving rise to this lawsuit. 21. Plaintiffs and Roop's tractor-trailer was stopped at the time of the incident and parked in such a manner that a portion of Roop's Vehicle was sticking out into the designated travel area. 22. Yellow markings on the pavement indicated to tractor-trailer operators where the parking row ended. 23. Roop's Vehicle was illegally parked at the time of the incident. 24. At the time of the incident, Defendants' tractor-trailer was operating within the area designated for vehicular traffic. 25. At the time of the incident, Defendants' tractor-trailer was traveling no more than ten (10) miles per hour. -3- 26. On the date of the incident, the only dangerous condition which caused or contributed to the happening of any injuries was Roop's Vehicle illegally sticking out into the designated travel area. 27. Plaintiff is barred from recovery in this action, or her recovery may be diminished, by Pennsylvania's Comparative Negligence statute. See 42 Pa. C.S. § 7102. 28. Plaintiffs injuries, which are otherwise denied, were caused by her own carelessness or negligence in that she: (a) failed to maintain a proper lookout for her own safety; (b) failed to pay proper attention; and, (c) failed to observe the area in which her tractor-trailer was parked. 29. Defendants were not negligent in their maintenance or operation of their tractor-trailer. 30. The actions or inactions of Defendants were not the direct and proximate cause of Plaintiffs injuries, said injuries being denied, and Plaintiffs negligence exceeded any negligence on the part of Defendants, any negligence by Defendants being specifically denied. In the alternative, if it is determined that Plaintiff was negligent, but that her negligence did not exceed that of Defendants, the same being specifically denied, then any award of damages must be reduced by the proportionate share of Plaintiffs comparative negligence. -4- 31. Plaintiffs claims against Defendants are barred or limited because of the intervening and/or superseding negligence of Roop and the owner of his tractor-trailer, Cal-Ark International. 32. Roop was negligent in illegally parking his tractor-trailer in the parking lot where the incident occurred. Cal-Ark International, as Roop's employer and/or agent, is liable for Roop's negligent, careless, and reckless actions and inaction while he was acting within the scope of his employment and/or agency. WHEREFORE, Defendants, Terry Kay Moran and Central Refrigerated Service, Inc. request judgment in their favor and against Plaintiff Shawanda Ledbetter, together with an award of costs and such other relief as this Court deems appropriate. McNEES WALLACE & NURICK LLC By Kandice J. Giurintano 611 ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: October 21, 2011 Attomeys for Defendants -5- VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities, I hereby certify that I am Steve Arave, Risk Manager of Central Refrigerated Service, Inc., and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Stev Arave Dated: October a-a , 2011 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 4mes J. Franklin Date: October 21, 2011 Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants r! t 7 'Q 'FP ?'dSYLVA , Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 2010- 2987 CIVIL TERM NOTICE TO DEFEND TO: CHARLES D. ROOP and CAL-ARK INTERNATIONAL, Additional Defendants: 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 800-990-9108 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 accibn 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 reclamacibn 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 0 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 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 McNEES WALLACE & NU and' iurintano, ID No. 86345 Kimberly A. Selemba, ID No. 93535 James J. Franklin, ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: February 3, 2012 Attorneys for Defendants -2- Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants SHAWANDA LEDBETTER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants CIVIL ACTION LAW : NO. 2010- 2987 CIVIL TERM V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants AMENDED JOINDER COMPLAINT OF DEFENDANTS AGAINST ADDITIONAL DEFENDANTS CHARLES D. ROOP AND CAL-ARK INTERNATIONAL Defendants Terry Kay Moran ("Moran") and Central Refrigerated Service, Inc. ("CRS") (collectively, the "Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, file this Amended Joinder Complaint against Charles D. Roop ("Roop") and Cal-Ark International ("Cal-Ark") as Additional Defendants. In support thereof, Defendants aver as follows: 1. This lawsuit arises out of a motor vehicle accident that occurred on June 7, 2008 in a PETRO Stopping Center, located at 1201 Harrisburg Pike, Carlisle, 17013. 2. The Complaint alleges a cause of action for negligence against Defendants for injuries allegedly suffered by Plaintiff Shawanda Ledbetter ("Plaintiff') in the June 7, 2008 incident. 3. Roop is an adult individual residing at 352 Jennings Avenue, Greenacres, Florida 33463. 4. Cal-Ark is a business entity with a corporate address of 15614 Highway 13 South, Hurricane Mills, Tennessee 37078. 5. Roop was an employee and/or agent of Cal-Ark at all times relevant hereto. 6. Cal-Ark owned the 2006 International tractor-trailer operated and driven by Roop at the time of the accident giving rise to this suit. 7. On May 5, 2010, Plaintiff initiated the above-captioned action against Defendants. Plaintiff filed her Complaint against Defendants on June 30, 2011. 8. On July 20, 2011, Defendants filed Preliminary Objections to the Complaint. 9. In response to the Preliminary Objections, Plaintiff amended the Complaint by Stipulation dated October 4, 2011, dismissing Roop and Greg Ledbetter as plaintiffs in the above-captioned action and striking all claims for punitive damages from the Complaint. -2- 10. On or about October 21, 2011, Defendants filed their Answer with New Matter to the Complaint, as amended by Stipulation. 11. Pursuant to Pennsylvania Rules of Civil Procedure 2251 et seq., Defendants filed a Joinder Complaint against Roop and Cal-Ark. 12. Defendants now file this Amended Joinder Complaint against Roop and Cal-Ark. COUNTI Defendants v. Charles D. Roop Negligence 13. Defendants incorporate Paragraphs 1 through 12, above, of their Amended Joinder Complaint. 14. Moran is an adult individual with an address of P.O. Box 29155, Lewisville, Texas 75029. 15. CRS is a corporate entity with a principal business address of 5175 West 2100 South, Salt Lake City, Utah 84120. 16. In her Amended Complaint, Plaintiff alleges that she and Roop were seated inside a 2006 International tractor-trailer owned by Cal-Ark (the "Cal-Ark Truck") on June 7, 2008. Plaintiffs Amended Complaint, 14. 17. Roop, the driver of the 2006 International tractor-trailer, had parked the unit in a PETRO Stopping Center. Id. at % 5. 18. Roop had stopped the Cal-Ark Truck at the time of the incident and parked it in such a manner that a portion of the tractor-trailer was sticking out into the designated travel area. -3- 19. Yellow markings on the pavement indicated to tractor-trailer operators where the parking row ended. 20. The Cal-Ark Truck was illegally parked at the time of the incident. 21. At the time of the incident, Defendants' tractor-trailer was operating within the area designated for vehicular traffic. 22. According to the allegations of Plaintiffs Amended Complaint, which allegations Defendants specifically deny, Defendants were negligent in the operation of their tractor-trailer and thereby caused a low-speed impact with the Cal-Ark Truck. Plaintiffs Amended Complaint, ¶¶ 8, 13. 23. Plaintiff alleges Defendants' aforesaid negligence resulted in injury to Plaintiff. Id., 110. 24. As the driver and operator of the Cal-Ark Truck, Roop was responsible for ensuring his unit was legally parked in the designated areas within the PETRO Stopping Center. 25. Roop's actions and inactions were negligent and careless in that he: a) failed to legally park the Cal-Ark Truck in the designated areas within the PETRO Stopping Area; b) parked the Cal-Ark Truck in a manner that a portion of the truck was sticking out into the designated travel area and thus represented a dangerous condition to other motorists in the PETRO Stopping Center; -4- c) failed to warn other motorists that the Cal-Ark Truck was sticking out into the designated travel area and thus represented a dangerous condition to other motorists in the PETRO Stopping Center; d) failed to properly mark or place cautionary signage or indicators that the Cal-Ark Truck was sticking out into the designated travel area and thus represented a dangerous condition to other motorists in the PETRO Stopping Center; e) failed to pay proper attention to his surroundings; f) failed to observe the area in which the Cal-Ark Truck was parked; and, g) failed to operate the Cal-Ark Truck in such a manner as to avoid a collision with Defendants' vehicle. 26. If Plaintiff suffered the damages as alleged in the Amended Complaint, such damages were proximately caused by Roop, as set forth in Paragraph 25, above. 27. While it is specifically denied that Plaintiff is entitled to any recovery, should it ultimately be determined that she is entitled to recover, Roop is liable over to Defendants, or is jointly and severally liable to Plaintiff with Defendants, or is liable to Defendants. 28. While it is specifically denied that Plaintiff is entitled to any recovery from Defendants, should such a recovery ultimately be imposed upon Defendants, Defendants are entitled to complete indemnification from Roop. In the alternative, if -5- complete indemnification is denied, then Defendants are entitled to contribution from Roop. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Service, Inc. demand judgment in their favor and against Additional Defendant Charles D. Roop in an amount in excess of the jurisdictional limits for arbitration, together with an award of costs and such other relief as this Court deems appropriate. COUNT II Defendants v. Cal-Ark International Vicarious Liability 29. Defendants incorporate Paragraphs 1 through 28, above, of their Amended Joinder Complaint. 30. At all times relevant hereto, Roop was acting within the course and scope of his employment and/or agency with Cal-Ark. 31. At all times relevant hereto, Cal-Ark held out Roop, who was acting within the course and scope of his apparent authority, as its employee, agent, and/or servant. 32. Because Roop was Cal-Ark's employee and/or agent at all times relevant to the incident in question and was acting within the scope of that employment/agency at the time of the incident, to the extent Plaintiff is entitled to recover any damages (which is denied), Cal-Ark is vicariously liable to Defendants for Roop's negligent and careless actions and inaction. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Service, Inc. demand judgment in their favor and against Additional Defendant Cal-Ark -6- International in an amount in excess of the jurisdictional limits for arbitration, together with an award of costs and such other relief as this Court deems appropriate. McNEES WALLACE & NURI By andic'64- iurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: February 3, 2012 Attorneys for Defendants -7- VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am Steve Arave, Risk Manager of Central Refrigerated Service, Inc., and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Steve A ve Dated: February __L, 2012 CERTIFICATE OF SERVICE hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 Franklin Date: February 3, 2012 3 SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ? <"+`- CIVIL ACTION LAW t+Z-- ?a NO 2010- 2987 CIVIL TERM ? . , RULE TO SHOW CAUSE AND NOW, this Akplay of /L , 2012, upon consideration of Defendants' Motion to Compel, a Rule is issued upon the Plaintiff to show cause why the Motion should not be granted. RULE RETURNABLE TEN (10) DAYS FROM SERVICE. AN ARGUMENT IS SCHEDULED FOR / S , 2012, AT tl- Oo _A .M., IN COURTROOM OF THE CUMBERLAND COUNTY COURTHOUSE. BY COUR J. Distribution: 1? Marcus A. McKnight, III, Esquire, Irwin & McKnight, P.C., 60 West Pomfret Street, Carlisle, PA 17013, Phone - (717) 249-2353 James J. Franklin, Esquire, McNees Wallace & Nurick LLC, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166, Phone - (717) 237-5375 Michael T. Traxler, Esquire, Rawle & Henderson, LLP, Payne Shoemaker Building, 240 North Third Street, 9th Floor, Harrisburg, PA 17101, Phone - (717) 234-7700 ?U1 C FILcD-C T F {tnE ^ lrB' 1K f iin i i Ibt4U T A[jy nM ? _7 t,?iL rTr., Air I1 I `'''JlM ERIAND COUNTY I N, P EN SYL ANIA RAWLE & HENDERSON LLP By: Michael T. Traxler Identification No.: 90961 Payne Shoemaker Building 240 N. Third Street, 9th Floor Harrisburg, PA 17101 (717) 234-7700 TO THE WITHIN NAMED PARTIES: You are hereby notified to plead to the enclosed ANSWER WITH NEW MATTER AND CROSS-CLAIM, within twenty (20) days from the date of service hereof or default judgment will be entered against you. RAWLE & HENDERSON LLP Gary N. Stewart Michael T. Traxler Attorneys for Defendants Attorney for Defendants, Charles D. Roop and Cal-Ark International SHAWANDA LEDBETTER, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA vs. CIVIL ACTION NO. 2010-2987 TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES Defendants, VS. CHARLES D. ROOP and CAL-ARK INTERNATIONAL Defendants ADDITIONAL DEFENDANTS, CHARLES ROOP AND CAL-ARK INTERNATIONAL'S ANSWER TO DEFENDANTS' AMENDED JOINDER COMPLAINT WITH NEW MATTER AND CROSS-CLAIMS Additional defendants, Charles Roop and Cal-Ark International, by and through their attorneys, Rawle & Henderson LLP, answer Defendants' Amended Joinder Complaint as follows: 5293870-1 I . Admitted with clarification. This was a non-reportable accident. 2. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 3. Admitted. 4. Admitted. 5. Denied. This paragraph contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. 6. Denied. The Cal-Ark tractor trailer was not being operated or driven at the time of the accident. Rather, the Cal-Ark International tractor was parked. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. COUNTI Defendants v. Charles D. Roop Negligence 13. The defendants incorporate by reference the answers to Paragraphs 1 through 12 of the Amended. Joinder Complaint as though the same were set forth at length herein. 14. Admitted. 15. Admitted. 16. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 5293870-1 17. Admitted in part; denied in part. It is admitted that the tractor trailer was parked. It is specifically denied that additional defendant Roop was operating or driving the tractor trailer. 18. Admitted in part; denied in part. It is admitted only that at the time of the accident, the tractor trailer was parked and additional defendant Roop was an occupant of the tractor trailer. It is specifically denied that the tractor trailer was sticking out into the designated travel area. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in this paragraph of the Amended Joinder Complaint, and therefore, set averments are denied. 19. Denied. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in this paragraph of the Amended Joinder Complaint, and therefore, said averments are denied. 20. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 21. Denied. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in this paragraph of the Amended Joinder Complaint, and therefore, said averments are denied. 22. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 23. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 5293870-1 24. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 25. (a - g) Denied. Additional defendants specifically deny that Charles Roop was negligent and demand strict proof thereof at trial. This Paragraph and its subparts contain conclusions of law to which no responsive pleading is required, and therefore, said averments are denied. Further denied as the allegations of negligence and carelessness were first asserted after the applicable statute of limitation. 26. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 27. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 28. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants" Amended Joinder Complaint be dismissed, and that judgment be rendered in 5293870-1 their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. COUNT II Defendants v. Cal-Ark International Vicarious Liability 29. The additional defendants incorporate by reference the answers to Paragraphs 29 through 32 of the Amended Joinder Complaint as though the same were set forth at length herein 30. Denied. This paragraph contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. 31. Denied. This paragraph contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. 32. Denied. This paragraph contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. NEW MATTER 33. Defendants' Amended Joinder Complaint fails to state a claim upon which relief can be granted. 34. Defendants' claims are barred by the Statute of Limitations. 35. Defendants failed to comply with applicable state law, including, but not limited to, The Motor Vehicle Code. 5293870-1 36. Additional defendants claim all defenses available under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Act as set forth in 75 Pa.C.S.A. §1701 et seq. 37. No omissions or conduct on the part of additional defendants contributed to Plaintiff's alleged damages, if any. 38. Plaintiff failed to mitigate her alleged damages. 39. The damages complained of by Plaintiff pre-existed, or are unrelated to, the accident which is the subject matter of this Amended Joinder Complaint. 40. The negligence of Plaintiff either bars her right to recover completely, or reduces her claims under the doctrine of comparative negligence. 41. Plaintiff's alleged damages, if any, were the result of an unavoidable accident, sudden emergency, or Act of God. 42. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the negligent conduct of Plaintiff. 43. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the fault of Terry K Moran and Central Refrigerated Services for whom additional defendant is not legally responsible. 44. This Honorable Court lacks jurisdiction over additional defendants. 45. Collateral estoppel applies to preclude the claims asserted against additional defendants by defendants. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants" Amended Joinder Complaint be dismissed, and that judgment be rendered in 5293870-1 their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. CROSS-CLAIM OF ADDITIONAL DEFENDANTS CHARLES ROOP AND CAL-ARK INTERNATIONAL AGAINST DEFENDANTS TERRY K MORAN AND CENTRAL REFRIGERATED SERVICES 46. Additional Defendants have denied and continue to deny any and all liability to Plaintiff and Defendants. If it is judicially determined that Plaintiff and/or Defendants are entitled to recover against additional defendants or that additional defendants are in any way liable by way of contribution or idemnity, that liability is the result of the actions, inactions or otherwise culpable conduct of defendants, Terry K. Moran and Central Refrigerated Services as more fully set forth in Plaintiff's Amended Complaint, the allegations of which are hereby incorporated by reference, but not admitted. Defendants, Terry K. Moran and Central Refrigerated Services are solely liable to the Plaintiff, jointly and/or severally liable to Plaintiff or they are liable over to additional defendants, in whole or in part, for any liability determined against additional defendants. 47. As a result of the actions, inactions or otherwise negligent conduct of defendants, Terry K. Moran and Central Refrigerated Services, as is more fully set forth in Plaintiff's Amended Complaint, the allegations of which are hereby incorporated by reference, but not admitted, defendants, Terry K. Moran and Central Refrigerated Services are liable to additional defendants, Charles Roop and Cal-Ark International for the damage to their property and accident related costs and expenses. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that Defendants' Amended Joinder Complaint be dismissed, and that judgment be 5293870-1 rendered in their favor and against Defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. REQUEST FOR JURY TRIAL The additional defendants hereby request a trial by jury on all issues that are triable. RAWLE & HENDERSON LLP 9 Gary N. Stewart, Esquire Michael T. Traxler, Esquire Attorneys for additional Defendants, Charles Roop and Cal-Ark International 5293870-1 VERIFICATION MICHAEL T. TRAXLER, ESQUIRE, hereby states that he is a member of the law firm of Rawle & Henderson LLP, attorneys for additional defendants, Charles Roop and Cal-Ark International, that he is authorized to take this verification on behalf of said defendant, Cal-Ark International. The undersigned verifies that he has read the within pleading and that the same is true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements set forth in said pleading are made subject to the penalties of 18 Pa. Cons. Stat. Ann. §4904 relating to unsworn falsification to authorities. MICHAEL T. TRAXLER, E QUIRE DATED: 3? 6, /2 e. / '2' 5293870-1 CERTIFICATE OF SERVICE I hereby certify that on today's date, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon all attorneys of record, addressed as follows: Marcus A. McKnight, III, Esq. Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiff) James J. Franklin, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (Counsel for Terry K. Moran and Central Refrigerated Services) RAWLE & HENDERSON LLP Dated: By: Gary N. Stewart, Esquire Michael T. Traxler, Esquire Attorneys for Defendants, Charles Roop and Cal-Ark International 316 5293870-1 t SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 2010-2987 CIVIL TERM .-, cu ?c -? u n rn :P1 r ? .- ??" w _4c.) ? c-n ANSWER TO PLAINTIFF'S MOTION TO COMPEL AND NOW this 13th day of March, 2012, comes legal counsel for the Defendant, James J. Franklin, and respectfully files this Answer to the Plaintiffs Petition for Rule to Show Cause pursuant to Pa.R.Civ.P. Rule 206.2, and in support thereof avers as follows: 1. The averments of fact contained in paragraph one (1) of the Plaintiffs Motion to Compel are admitted. 2. The averments of fact contained in paragraph two (2) are admitted. 3. The averments of paragraph three (3) are admitted. 4. The averments of paragraph four (4) are admitted. 5. The averments of paragraph five (5) are admitted. 6. The averments of paragraph six (6) are admitted. 7. The averments of paragraph seven (7) are admitted. 8. Specifically denied. On the contrary, the Plaintiff sent the available documents along with a settlement demand to the Defendant on or about February 23, 2012. 9. The averments of paragraph nine (9) are admitted. 10. Specifically denied. On the contrary, the Plaintiff's counsel communicated by telephone and by mail with counsel for the Defendant. 11. The averments of paragraph eleven (11) are denied. On the contrary, the Plaintiff attempted to contact Defendant's counsel, but he had already placed this Motion in the mail before the close of business. 12. Specifically denied. On the contrary, the Plaintiff is homeless and resides somewhere in Alabama. The Plaintiffs counsel has attempted to obtain authorizations and additional information from Plaintiff. 13. Specifically denied. On the contrary, the Defendant in no manner prejudiced by the delay. 14. The averments of paragraph fourteen (14) are admitted. 15. Specifically denied. On the contrary, the Plaintiff has responded with this Answer to the Motion. 16. The averments of paragraph sixteen (16) are admitted. 2 WHEREFORE, the Plaintiff seeks that the Motion to Compel be dismissed or in the alternative that the Plaintiff be afforded thirty (30) days to respond by obtaining the information. Respectfully submitted, IRWIN & MCKNIGHT, P.C. By: Marcus c WWII, Esquire 60 West nkmt'Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for plaintiff Date: March 13, 2012 3 VERIFICATION The foregoing document is based upon information which has been gathered by counsel for the plaintiff in the preparation of this document. Due to the Client residing in Alabama, I am signing this document. To the extent that the document is based upon information which has been gathered by counsel, it is true and correct to the best of the counsel's knowledge, information and belief. The undersigned is verifying on behalf of the petitioner according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: March 13, 2012 4 SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 2010-2987 CIVIL TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: James J. Franklin, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 IRWIN & By: Marcus N. Mc ig squire 60 West Pomfret t Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: March 13, 2012 5 SHAWANDA LEDBETTER, Plaintiff V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW : NO. 2010- 2987 CIVIL TERM V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants AND NOW, this ORDER day of ?44 , 2012, upon consideration of Defendants' Motion to Compel, and any response thereto, it is hereby ORDERED that Defendants' Motion is GRANTED. Plaintiff is hereby ordered and directed to provide full and complete responses to Defendants' Request for Production of Documents within ten (10) days of the date of this Order or face sanction by the Court. i TH =; Cx, ^j TI M M -Orr Cn 70 C) Y (-"j am Distribution: CD ) ? Marcus A. McKnight, III, Esquire, Irwin & McKnight, P.C., 60 West Pomfret Street, C*1isr% Px- 17013, Phone - (717) 249-2353 ?James J. Franklin, Esquire, McNees Wallace & Nurick LLC, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166, Phone - (717) 237-5375 Michael T. Traxler, Esquire, Rawle & Henderson, LLP, Payne Shoemaker Building, 240 North Third Street, 9th Floor, Harrisburg, PA 17101, Phone - (717) 234-7700 pi e-6 A.., led 3f is/?a 14-4-4 f Y f C6- c-' TO THE WITHIN NAMED PARTIES: You are hereby notified to plead to the enclosed ANSWER WITH NEW MATTER AND CROSS-CLAIM, within twenty (20) days from the date of service hereof or default judgment will be entered against you. RAWLE & HENDERSON LLP By: Michael T. Traxler Identification No.: 90961 Payne Shoemaker Building 240 N. Third Street, 9th Floor Harrisburg, PA 17101 (717) 234-7700 RAWLE & HENDEI SON LLP Gary N. Stewart Michael T. Traxler Attorneys for Defendants Attorney for Defendants, Charles D. Roop and Cal-Ark International SHAWANDA LEDBETTER, Plaintiff, vs. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES Defendants, vs. CHARLES D. ROOP and CAL-ARK INTERNATIONAL Defendants COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA r. CIVIL ACTION r? U J NO. 2010-2987 t ca TM1 .x ADDITIONAL DEFENDANTS, CHARLES ROOP AND CAL-ARK INTERNATIONAL'S AMENDED ANSWER TO DEFENDANTS' AMENDED JOINDER COMPLAINT WITH NEW MATTER AND CROSS-CLAIMS Additional defendants, Charles Roop and Cal-Ark International, by and through their attorneys, Rawl.e & Henderson LLP, answer Defendants' Amended Joinder Complaint as follows: 5361279-1 1. Admitted with clarification. This was a non-reportable accident. 2. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 3. Admitted. 4. Admitted. 5. It is admitted only that Charles Roop was in the course and scope of his employment with Cal-Ark at the time of the alleged accident. It is specifically denied that Charles Roop took any action that contributed to the accident. Further, it is specifically denied that the actions of Charles Roop were negligent or careless. 6. Denied. The Cal-Ark tractor trailer was not being operated or driven at the time of the accident. Rather, the Cal-Ark International tractor was parked. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. COUNTI Defendants v. Charles D. Roop NeOhience 13. The defendants incorporate by reference the answers to Paragraphs 1 through 12 of the Amended Joinder Complaint as though the same were set forth at length herein. 14. Admitted. 15. Admitted. 5361279-1 16. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 17. Admitted in part; denied in part. It is admitted that the tractor trailer was parked. It is specifically denied that additional defendant Roop was operating or driving the tractor trailer. 18. Admitted in part; denied in part. It is admitted only that at the time of the accident, the tractor trailer was parked and additional defendant Roop was an occupant of the tractor trailer. It is specifically denied that the tractor trailer was sticking out into the designated travel area. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in this paragraph of the Amended Joinder Complaint, and therefore, set averments are denied. 19. Denied. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in this paragraph of the Amended Joinder Complaint, and therefore, said averments are denied. 20. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 21. Denied. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in this paragraph of the Amended Joinder Complaint, and therefore, said averments are denied. 22. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 5361279-1 23. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 24. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 25. (a - g) Denied. Additional defendants specifically deny that Charles Roop was negligent and demand strict proof thereof at trial. This Paragraph and its subparts contain conclusions of law to which no responsive pleading is required, and therefore, said averments are denied. Further denied as the allegations of negligence and carelessness were first asserted after the applicable statute of limitation. 26. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 27. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 28. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 5361279-1 WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. COUNT II Defendants v. Cal-Ark International Vicarious Liability 29. The additional defendants incorporate by reference the answers to Paragraphs 29 through 32 of the Amended Joinder Complaint as though the same were set forth at length herein 30. It is admitted only that Charles Roop was in the course and scope of his employment with Cal-Ark at the time of the alleged accident. It is specifically denied that Charles Roop took any action that contributed to the accident. Further, it is specifically denied that the actions of Charles Roop were negligent or careless. 31. It is admitted only that Charles Roop was in the course and scope of his employment with Cal-Ark at the time of the alleged accident. It is specifically denied that Charles Roop took any action that contributed to the accident. Further, it is specifically denied that the actions of Charles Roop were negligent or careless. 32. Denied. This paragraph contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. 5361279-1 NEW MATTER 33. Defendants' Amended Joinder Complaint fails to state a claim upon which relief can be granted. 34. Defendants' claims are barred by the Statute of Limitations. 35. Defendants failed to comply with applicable state law, including, but not limited to, The Motor Vehicle Code. 36. Additional defendants claim all defenses available under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Act as set forth in 75 Pa.C.S.A. §1701 et seq. 37. No omissions or conduct on the part of additional defendants contributed to Plaintiff's alleged damages, if any. 38. Plaintiff failed to mitigate her alleged damages. 39. The damages complained of by Plaintiff pre-existed, or are unrelated to, the accident which is the subject matter of this Amended Joinder Complaint. 40. The negligence of Plaintiff either bars her right to recover completely, or reduces her claims under the doctrine of comparative negligence. 41. Plaintiff's alleged damages, if any, were the result of an unavoidable accident, sudden emergency, or Act of God. 42. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the negligent conduct of Plaintiff. 43. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the fault of Terry K Moran and Central Refrigerated Services for whom additional defendant is not legally responsible. 5361279-1 44. This Honorable Court lacks jurisdiction over additional defendants. 45. Collateral estoppel applies to preclude the claims asserted against additional defendants by defendants. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. CROSS-CLAIM OF ADDITIONAL DEFENDANTS CHARLES ROOP AND CAL-ARK INTERNATIONAL AGAINST DEFENDANTS TERRY K MORAN AND CENTRAL REFRIGERATED SERVICES 46. Additional Defendants have denied and continue to deny any and all liability to Plaintiff and Defendants. If it is judicially determined that Plaintiff and/or Defendants are entitled to recover against additional defendants or that additional defendants are in any way liable by way of contribution or idemnity, that liability is the result of the actions, inactions or otherwise culpable conduct of defendants, Terry K. Moran and Central Refrigerated Services as more fully set forth in Plaintiff's Amended Complaint, the allegations of which are hereby incorporated by reference, but not admitted. Defendants, Terry K. Moran and Central Refrigerated Services are solely liable to the Plaintiff, jointly and/or severally liable to Plaintiff or they are liable over to additional defendants, in whole or in part, for any liability determined against additional defendants. 47. As a result of the actions, inactions or otherwise negligent conduct of defendants, Terry K. Moran and Central Refrigerated Services, as is more fully set forth in Plaintiff's Amended Complaint, the allegations of which are hereby incorporated by reference, but not admitted, defendants, Terry K. Moran and Central Refrigerated Services are liable to additional 5361279-1 defendants, Charles Roop and Cal-Ark International for the damage to their property and accident related costs and expenses. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that Defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against Defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. REQUEST FOR JURY TRIAL The additional defendants hereby request a trial by jury on all issues that are triable. RAWLE & HENDERSON LLP B y: 7-A-614- Gary N. Stewart, Esquire Michael T. Traxler, Esquire Attorneys for additional Defendants, Charles Roop and Cal-Ark International 5361279-1 VERIFICATION MICHAEL T. TRAXLER, ESQUIRE, hereby states that he is a member of the law firm of Rawle & Henderson LLP, attorneys for additional defendants, Charles Roop and Cal-Ark International, that he is authorized to take this verification on behalf of said defendant, Cal-Ark International. The undersigned verifies that he has read the within pleading and that the same is true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements set forth in said pleading are made subject to the penalties of 18 Pa. Cons. Stat. Ann. §4904 relating to unsworn falsification to authorities. i MICHAEL T. TRAXLER, SQUIRE DATED: -3 /"-? `I / ";? d % -.)- 5361279-1 CERTIFICATE OF SERVICE I hereby certify that on today's date, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon all attorneys of record, addressed as follows: Marcus A. McKnight, III, Esq. Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiff) James J. Franklin, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (Counsel for Terry K. Moran and Central Refrigerated Services) RAWLE & HENDERSON LLP Dated: By: /ti....l- Gary N. Stewart, Esquir Michael T. Traxler, Esquire Attorneys for Defendants, Charles Roop and Cal-Ark International 3P. 5361279-1 Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 -< _ {- Attorneys for Defendants SHAWANDA LEDBETTER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants V. CIVIL ACTION LAW NO. 2010- 2987 CIVIL TERM CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants REPLY TO ADDITIONAL DEFENDANTS' AMENDED NEW MATTER AND ANSWER TO CROSS-CLAIMS Defendants, Terry Kay Moran ("Moran") and Central Refrigerated Service, Inc. ("CRS") (collectively, the "Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, submit the following Reply to Additional Defendants' Amended New Matter and Answer to Cross-Claims. Reply to New Matter 33. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. To the extent a response is deemed required, Defendants specifically deny the Amended Joinder Complaint fails to state a claim against Additional Defendants upon which relief can be granted. 34. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. To the extent a response is deemed required, Defendants specifically deny their claims are barred by the statute of limitations. 35. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. To the extent a response is deemed required, Defendants specifically deny they failed to comply with any applicable state law or regulation, including Pennsylvania's Motor Vehicle Code. 36. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. 37. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. 38. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. 39. Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth or falsity of the averments of this paragraph and, therefore, deny the same. 40. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. 41. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. -2- 42. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. 43. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. To the extent a response is deemed required, Defendants specifically deny Plaintiffs alleged damages -the existence of which Defendants' expressly deny - were proximately caused, in whole or in part, by Defendants' actions or inaction. 44. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. To the extent a response is deemed required, Defendants specifically deny this Court lacks jurisdiction over Additional Defendants. By way of further response, Additional Defendants have consented to the personal jurisdiction of this Court. 45. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. To the extent a response is deemed required, Defendants specifically deny the doctrine of collateral estoppel precludes any claims asserted by Defendants against Additional Defendants. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Service, Inc. demand judgment in their favor and against Additional Defendants Charles D. Roop and Cal-Ark International in an amount in excess of the jurisdictional limits for arbitration, together with an award of costs and such other relief as this Court deems appropriate. -3- Answer to Cross-Claim 46. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. 47. Denied. The allegations of this paragraph contain conclusions of law to which no response is required. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Service, Inc. demand judgment in their favor and against Additional Defendants Charles D. Roop and Cal-Ark International in an amount in excess of the jurisdictional limits for arbitration, together with an award of costs and such other relief as this Court deems appropriate. McNEES WALLACE & NURICK LLC By. Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: April 6, 2012 Attorneys for Defendants, Terry Kay Moran and Central Refrigerated Service, Inc. -4- VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am Steve Arave, Risk Manager of Central Refrigerated Service, Inc., and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Steve Ar ve t Dated: April _, 2012 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 mess J. Franklin Date: April 6, 2012 3 SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. j TERRY KAY MORAN and CIVIL ACTION LAW C-) c CENTRAL REFRIGERATED ?C__ SERVICES, M ? Defendants W ? NO. 2010- 2987 CIVIL TERM V. Ica Na C) CHARLES D. ROOP, and v CAL-ARK INTERNATIONAL, Additional Defendants RULE TO SHOW CAUSE AND NOW, this Z4 *y of LJ A&./ 7 , 2012, upon consid eration of Defendants' Motion for Sanctions, a Rule is issued upon Plaintiff Shawanda Ledbetter to show cause why the Motion should not be granted. RULE RETURNABLE TWENTY (20) DAYS FROM SERVICE. AN ARGUMENT IS SCHEDULED FOR S4 '2012, AT a •30 1 M., IN COURTROOM -3 OF THE CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYLVANIA. BY COUR J. Distribution: /Marcus A. McKnight, Esquire, Irwin & McKnight, P.C., 60 West Pomfret Street, Carlisle, PA 17013, Phone - (717) 249-2353 (Counsel for Plaintiff) /James J. Franklin, Esquire, McNees Wallace & Nurick LLC, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166, Phone - (717) 237-5375 (Counsel for Defendants) Michael T. Traxler, Esquire, Rawle & Henderson, LLP, Payne Shoemaker Building, 240 North Third Street, 9th Floor, Harrisburg, PA 17101, Phone - (717) 234-7700 (Counsel for Additional Defendants) 4;es- Ma.lel '211f/la A/Z SHAWANDA LEDBETTER, Plaintiff v. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants v. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants IN THE COURT OF COMMON PLEAS C CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW • c . . .~ ~ N0.2010-2987 CIVIL TERM ' o ~~ -~ _ • ~~ . .^. ~-~ .: -.~ c.s . ..~; w ANSWER TO DEFENDANT'S MOTION FOR SANCTIONS AND NOW, this 30~' day of August 2012, comes the plaintiff, SHAWANDA LEDBETTER, by and through her attorneys, Irwin & McKnight, P.C., and makes the Answer to Defendant's Motion for as follows: 1. The Plaintiff, Shawanda Ledbetter, was able to supply to her counsel, the list of medi care providers made pursuant to her accident and health insurance policy underwritten by Un National Insurance Company of Pittsburgh. That infonmation was supplied to the Defendant July 25, 2012. 2. The Plaintiff, Shawanda Ledbetter, has contacted the medical providers seeking e~ -~ rn o -•tc~ -rt x-- ~; complete medical file. To date, records have been supplied to the Defendant on August ~ 0, 2012, from Springhill Memorial Hospital, We1lGroup Health Partners, LLC, and Memorial Hospital. 3. As other records are received, they will be forwarded to the Defendant's counsel. 4. The Plaintiff, Shawanda Ledbetter, was in training at the time of the collision and covered by an accident and health insurance policy underwritten by Union National Insur, Company of Pittsburgh. Counsel for the Plaintiff is seeking confirmation of any income received from this policy or her employer at the time of the collision. 5. The Plaintiff s address is located in Alabama, but she spends most of her time and it is difficult to contact her by mail or be telephone. WHEREFORE, the Plaintiff respectfully requests that the Motion for Sanctions dismissed or deferred pending the completion of the discovery. Respectfully submitted, IRWIN & MCKNIGHT, P.C. L.A' J By: Marcus . Mc i t, I, Esquire 60 West omfret Street Carlisle, Pennsyl is 13 (717) 249-2353 Supreme Court LD. No. 25476 Attorney for plaintiff be Date: August 30, 2012 VERIFICATION The foregoing document is based upon information which has been gathered by for the plaintiff in the preparation of this document. Due to the Client residing in Alabama, I signing this document. To the extent that the document is based upon information which has been gathered by counsel, it is true and correct to the best of the counsel's knowledge, information and belief. The undersigned is verifying on behalf of the petitioner according to Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. A. McI~nigh~, III, Esquire Date: August 30, 2012 SHAWANDA LEDBETTER, . Plaintiff v. . TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, . Defendants v. . CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants IN THE COURT OF COMMON PLEAS F CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW N0.2010-2987 CIVIL TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document ~ served upon the following by depositing a true and correct copy of the same in the United Stag mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: James J. Franklin, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 IRWIN & McKNIGHT, P.C. By: Marcus . Mc I, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: August 30, 2012 ~ {, ~r SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. TERRY KAY MORAN and CENTRAL REGRIGERATED ~ ~_ SERVICES, -~" ~•a Defendants "' c v. w CHARLES D . ROOP and ~~-, 3 CAL-ARK INTERNATIONAL, CIVIL ACTION - LAW ~~ N Additional Defendants NO. 2010-2987 CIVIL TERM~'""~ o ~n ORDER OF COURT AND NOW, this 30th day of August, 2012, upon consideration of Defendants' Motion for Sanctions and the Plaintiff's response thereto, it is hereby ordered and direct as follows: 1. Plaintiff shall be precluded from pursu any wage loss in this action. 2. Plaintiff shall provide Defendants with authorization for the release of her medical records for -n `n treatment incurred in connection with the injuries sustained 'n this action. Said release shall be provided to Defendants within 90 days of Plaintiff's counsel's receipt of the propos d releases from Defendants' counsel. Failure to provide the proposed releases within said 90 days shall result in a dismissal of this action. By the Court, Edward E. Guido, J. . f ~/ Marcus A. McKnight, Esquire Attorney for Plaintiff v James J. Franklin, Esquire Attorney for Defendants i/ Michael T. Traxler, Esquire Attorney for Additional Defendants srs ~prCS M~ `,I~L~ ~/3/~/~-- ~~ •. RAWLE & HENDERSON LLP , , By: Michael T. Trailer - ~ ' ' ~ _ Identification No.: 90961 ~ - , ~ i "'~'. I ~' Payne Shoemaker Building _ , , . ," ~ , , ,' , , -=t 240 N. Third Street, 9th .Floor Attorney for Additional Defendants, Harrisburg, PA 17101 Charles D. Roop and (717) 234-7'700 Cal-Ark International SHAWANDA LEDBETTER, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA vS. : CIVIL ACTION TERRY K~~Y MORAN and NO. 2010-2987 CENTRAL RF,FRIGERATED SERVICES Defendants, vs. CHARLES D. ROOP and CAL-ARK INTERNATIONAL Additional Defendants: MOTION FOR JUDGMENT ON THE PLEADINGS OF ADDITIONAL DEFENDANTS, CHARLES D. ROOP AND CAL-ARK INTERNATIONAL Additional Defendants, Charles D. Roop and Cal-Ark International, by and through its counsel, Ra.wle & Henderson, LLP, file this Motion for Judgment on the Pleadings, and in support thereof, aver as follows: 1. On August 30, 2012, the Honorable Edward E. Guido presided over a Motion for Sanctions filed by the Original Defendants against Plaintiff concerning disputed discovery. ?. This lawsuit arises out of a motor vehicle accident that occurred on June 7, 2010 at the PETR_O truck stop, located at 1201 Harrisburg Pike, Carlisle 17013. 3. On May 5, 2012, plaintiff Shawanda Ledbetter initiated the above-captioned action against defendants Terry Kay Moran and Central Refrigerated Services (;hereinafter 591839-I "Original Defendants") 4. On June 7, 2010, the applicable statute of limitations expired without Plaintiff or Original. Defendants joining Charles D. Roop and Cal-Ark International as additional defendants. ~. On October 31, 2011, Original Defendants filed a Joinder Complaint against additional defendants, Charles D. Roop and Cal-Ark International. 6. After resolving issues that Additional Defendants intended to raise in the form of preliminary objections, on or about February 3, 2012, Original Defendants filed an Amended Joinder Complaint. A true and accurate copy of Original Defendants' Amended Joinder Complaint is attached as Exhibit "A." ?. On March 30, 2012, Additional Defendants filed an Amended Answer to Original Defendants' Amended .binder Complaint. A true and accurate copy of Additional Defendants' Amended Answer to Original Defendants' Amended Joinder Complaint is attached as Exhibit «B ., 8. Due to the joinder taking place after the expiration of the statute of limitations, Plaintiff has no direct cause of action against Additional Defendants. Wnek v. Boyle, 374 Pa. 27, 96 A.2d 857 (1953); Dickson v. Lewandowski, 228 Pa. Super. 57, 323 A.2d 169 (;1974}. '~. The only claim that exists against Additional Defendants is the claim for contribution. or indemnity asserted by Original Defendants.. Id. 10. In support of the claim for contribution or indemnity, in the Amended Joinder Complaint, Original Defendants assert claims of negligence against Additional Defendants. 11. The relevant pleadings have closed between all of the parties to this lawsuit. 5918395-1 2 I. STANDARD FOR MOTION FOR JUDGMENT ON THE PLEADINGS l2. Pursuant to Pennsylvania Rule of Civil Procedure 1034, if "(a) [a]fter the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment: on the pleadings ...(b) [t]he court shall enter such judgment or order as shall be proper on the pleadings. Pa.R.Civ.P. 1034. 13. In considering a motion for judgment on the pleadings, the court must limit its consideration to the facts set forth in the relevant pleadings. Kotovshy v. Ski Liberh~ Operating Corp., 603 A.2d 633 (Pa. Super. 1992); Emerich v. Philadelphia Center ,fur Human Development, Inc., 720 A.2d 1032 (Pa. 1998). 14. In Bensalem Township School Dist. v. Commonwealth, 518 Pa. 581, 586-87, 544 A.2d 1318, 1321 (1988), the court discussed the use of a motion for judgment on the pleadings under Pennsylvania Rule of Civil Procedure 1034: A rule 1034 motion for judgment on the pleadings can be used as a motion to test whether such a cause of action as pleaded exists at law, and in that way `is in the nature of a demurrer.' Bata v. Central Pennsylvania National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). 1 ~. Original Defendants' Amended Joinder Complaint fails to state a cause of action for negligence against Additional Defendants, therefore, Additional Defendants are entitled to judgment or- the pleadings as a matter of law. Pa.R.Civ.P. 1034. II. ORIGINAL DEFENDANTS HAVE FAILED TO SUCCESSFULLY PLEAD A CAiJSE OF ACTION FOR NEGLIGENCE AGAINST ADDITIONAL DEFENDANTS, THEREFORE, JUDGMENT ON THE PLEADINGS IS APPROPRIATE. 16. Motion for judgment on the pleadings is appropriate as to Original Defendants' Amended Joinder Complaint as the facts alleged by Original Defendants and Additional Defendants in the relevant pleadings establish that Additional Defendants did not owe a duty of 591839-1 3 care to Original Defendants. 17. In the alternative, even :if Original Defendants establish that a duty of care was owed by Additional Defendants, the facts alleged in the relevant pleadings fail to establish that additional defendants breached a duty of care. 18. In the alternative, even if the relevant factual allegations establish that additional defendants owed a duty of care and breached that duty, the relevant factual allegations fail to establish that additional defendants were a factual cause of the injuries alleged by Plaintiff. 19. To establish a viable cause of action in negligence, the pleader must aver the following elements: a duty, ar obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks; A failure on that person's part to conform to the standard required: a breach of the duty; A reasonably close causal connection between the conduct and the resulting injury; Actual loss or damage resulting to the interest of another. Ferry v, Fisher, 709 A..2d 399, 402 (Pa. Super. 1998; J.E.J. v. Tri-County Big Brothers/ Big Sisters, Inc.., 692 A.2d 582 (Pa. Super. 1997) (holding that the elements of negligence are duty owed, a breach of that duty, a causal connection between the breach and the resulting injury, and actual damages or loss.) 20. It is fundamental that in a negligence action facts must be alleged that establish a duty was owed, the breach of which duty gave rise to the damages allegedly suffered. Otto v. American Mutual Insz~~rance Co., 241 Pa. Super. 423, 429, 361 A.2d 815, 818-~ 19 (1976) (emphasis in original). ;See also DeJesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A.2d 849 (1966) (per curiaml; Gavula v. AR4 Services, 200 Pa. Super. I77, 756 A.2d 17 (2100); Ferry v. Fisher, 7O9 A.2d 399 (Pa. Super. 1998); Stempler v. Frankford Trust Co., 365 Pa. Super. 305, 529 A.2d 521 (1987); Fike City Hotels Corp v. Kiefer v. Marvins Refrig, 262 Pa. Super. 126, 396 591839-1 4 A.2d 677 (1978); Boyce v. U. S. Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971). 21. Duty and the breach thereof, are questions of whether a defendant is under any obligation for the benefit of the particular plaintiff. Prosser, Law of Torts, § 53 at 970 (4t~ Ed. 1971). 22. "The breach of a duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time and necessarily requires some kind of knowledge. !Morena v. South Hills Health System, 501 :Pa. 634, 642, 462 A.2d 680 (1983); Dumanski v. City of Erie, 348 Pa. 505., 34 A.2d 508 (1943); Porreca v. Atlantic Ruining, Co., 403 Pa. 171, 168 A.2d 564 (1961); Pittsburgh National Bank v. Perr, 431 Pa. Super. 580, 584, 637 A.2d 334, 336 (1994). 23. It is necessary that a complaint aver both the duty owed and the breach of that duty to support an action in negligence. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983); Gavula v, A.lz,9 Services, 200 Pa. Super. 177, 756 A.2d 17 (2000); Ferry v. Fisher, 709 A.2d 399 (Pa. Super. 1998); Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); Restatement (Second) of Torts §§ 328-343B (1965). 24. Thus, pursuant to Pennsylvania Rule of Civil Procedure 1019(a), to successfully plead a prima facie case of negligence., Original Defendants' Amended Joinder Complaint must allege duty, breach of the duty by the Original Defendants, and establish a causal connection between the alleged breach and alleged injuries. 25. At the time of the alleged incident, it is undisputed that additional defendant, Charles Roop and plaintiff, Shawanda Ledbetter were inside the cab of a parked anal stationary tractor-trailer. 5918395-1 S 26. It is undisputed that the parked and stationary tractor-trailer occupied by additional defendant, Roop and Plaintiff was parked and stationary on private property being operated as a. truck stop under the name of PETRO. 27. It is undisputed that PETRO is a truck stop where it is common for tractor-trailers to be stopped and parked. 28. It is undisputed that original defendant, Terry Moran was driving atractor-trailer and struck the parked and stationary tractor-trailer occupied by additional defendant, Roop and Plaintiff. 29. It is undisputed that it was daylight when original defendant, Moran struck the parked stationary tractor-trailer occupied by additional defendant, Roop and Plaintiff. 30. In light of these undisputed facts, there is no factual scenario under which additional defendant, Roop can be charged with owing a duty of care, breaching a duty of care, or being the cause of Plaintiff's alleged injuries. 1. Inasmuch as the Original Defendants have failed to plead a claim of negligence, a trial on the merits would be fruitless. Accordingly, Additional Defendants are entitled to judgment on the pleadings as a matter of law in this case. 32. By correspondence dated July 16, 2012, it was requested that Original Defendants voluntarily dismiss the Amended Joinder Complaint against Additional Defendants. In that correspondence, Original Defendants were placed on notice that because there was no good faith legal or factual basis to continue this litigation against Additional Defendants, it was the intention of Additional Defendants to pursue legal remedies available under 42 Pa.C..S.A. § 8351, et. secy. 5918395-1 6 3 3. Original Defendants refused to voluntarily dismiss Additional Defendants. WHEREFORE, Additional Defendants respectfully request that the Original Defendants' Amended Joinder Complaint be dismissed, with prejudice. Dated: ~ ~ ~` ~ / ~/ ~ Respectfully submitted, RAWLE & HENDF,RSON LLP n By: ~C- l2~ --=---~ Michael T. Traxler Attorneys for Additional Defendants. Charles D. Roop and Cal-Ark International 5918395-1 '~ ~ \ ~~~~ o~ F~ Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 SHAWANDA LEDBETTER, Plaintiff v. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants v. Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 2010- 2987 CIVIL TERM CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants NOTICE TO DEFEND TO: CHARLES D. ROOP and CAL-ARK INTERNATIONAL, Additional Defendants: 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 800-990-9108 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 Demands 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 falls de tomar accion Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en la demands 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 800-990-9108 McNEES WALLACE & NU .t~-- ,. -~ Y Kandi~--~iurintano, ID No. 86345 Kimberly A. Selemba, ID No. 93535 James J. Franklin, ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: February 3, 2012 Attorneys for Defendants -2- Kandice J. Giurintano I D No. 86345 Kimberly A. Selemba I D No. 93535 James J. Franklin ID No. 306458 McNees Wallace &Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 SHAWANDA LEDBETTER, Plaintiff Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants CIVIL ACTION LAW NO. 2010- 2987 CIVIL. TERM v. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants AMENDED JOINDER COMPLAINT OF DEFENDANTS AGAINST ADDITIONAL DEFENDANTS CHARLES D. ROOP AND CAL-ARK INTERNATIONAL Defendants Terry Kay Moran ("Moran") and Central Refrigerated Service, Inc. ("CRS") (collectively, the "Defendants"), by and through their attorneys, McNees Wallace &Nurick LLC, file this Amended Joinder Complaint against Charles D. Roop ("Roop";) and Cal-Ark International ("Cal-Ark") as Additional Defendants. In support thereof, Defendants aver as follows: 1. This lawsuit arises out of a motor vehicle accident that occurred on June 7, 2008 in a PETRO Stopping Center, located at 1201 Harrisburg Pike, Carlisle, 17013. 2'. The Complaint alleges a cause of action for negligence against Defendants for injuries allegedly suffered by Plaintiff Shawanda Ledbetter ("Plaintiff') in the June 7, 2008 incident. ?~. Roop is an adult individual residing at 352 Jennings Avenue, Greenacres, Florida 33463. 4. Cal-Ark is a business entity with a corporate address of 15614 Highway 13 South, Hurricane Mills, Tennessee 37078. 5~. Roop was an employee and/or agent of Cal-Ark at all times relevant hereto. E~. Cal-Ark owned the 2006 International tractor-trailer operated and driven by Roop at the time of the accident giving rise to this suit. 7'. On May 5, 2010, Plaintiff initiated the above-captioned action against Defendants. Plaintiff filed her Camplaint against Defendants on June 30, 2011. 8. On July 20, 2011, Defendants filed Preliminary Objections to the Complaint. 9. In response to the Preliminary Objections, Plaintiff amended the Complaint by Stipulation dated October 4, 2011, dismissing Roop and Greg Ledbetter as plaintiffs in the above-captioned action and striking all claims for punitive damages from they Complaint. -2- 10. On or about October 21, 2011, Defendants filed their Answer with New Matter to the Complaint, as amended by Stipulation. 11. Pursuant to Pennsylvania Rules of Civil Procedure 2251 et seq., Defendants filed a Joinder Complaint against Roop and Cal-Ark. 12. Defendants now file this Amended Joinder Complaint against Roop and Cal-Ark. COUNT I Defendants v. Charles D. Roop Negligence 13. Defendants incorporate Paragraphs 1 through 12, above, of their Amended Joinder Complaint. 14. Moran is an adult individual with an address of P.O. Box 29155, Lewisville, Texas 7 5029. 15. CRS is a corporate entity with a principal business address of 5175 West 2100 South, Salt Lake City, Utah 84120. 16. In her Amended Complaint, Plaintiff alleges that she and Roop were seated inside a 2006 International tractor-trailer owned by Cal-Ark (the "Cal-Ark Truck") on June 7, 2008. Plaintiffs Amended Complaint, ¶ 4. 17. Roop, the driver of the 2006 International tractor-trailer, had parked the unit in a PETRO Stopping Center. Id. at ¶ 5. 18. Roop had stopped the Cal-Ark Truck at the time of the incident and parked it in such a manner that a portion of the tractor-trailer was sticking out into the designated travel area. -3- '19. Yellow markings on the pavement indicated to tractor-trailer operators where the parking row ended. 20. The Cal-Ark Truck was illegally parked at the time of the incident. ~?1. At the time of the incident, Defendants' tractor-trailer was operating within the area designated for vehicular traffic. 2.2. Accarding to the allegations of Plaintiffs Amended Complaint, which allegations Defendants specifically deny, Defendants were negligent in the operation of their tractor-trailer and thereby caused slow-speed impact with the Cal-Ark Truck. Plaintiffs Amended Complaint, ¶¶ 8, 13. ~'_3. Plaintiff alleges Defendants' aforesaid negligence resulted in injury to Plaintiff. Id., ¶ 10. ~'.4. As the driver and operator of the Cal-Ark Truck, Roop was responsible for ensuring his unit was legally parked in the designated areas within the PETRO Stopping Center. c:5. Roop's actions and inactions were negligent and careless in that he: a) failed to legally park the Cal-Ark Truck in the designated areas within the PETRO Stopping Area; b) parked the Cal-Ark Truck in a manner that a portion of the truck was sticking out into the designated travel area and thus represented a dangerous condition to other motorists in the PETRO Stopping Center; -4- c) failed to warn other motorists that the Cal-Ark Truck was sticking out into the designated travel area and thus represented a dangerous condition to other motorists in the PETRO Stopping Center; d) failed to properly mark or place cautionary signage or indicators that the Cal-Ark Truck was sticking out into the designated travel area and thus represented a dangerous condition to other motorists in the PETRO Stopping Center; e) failed to pay proper attention to his surroundings; f) failed to observe the area in which the Cal-Ark Truck was parked; and, g) failed to operate the Cal-Ark Truck in such a manner as to avoid a collision with Defendants' vehicle. 2.6. If Plaintiff suffered the damages as alleged in the Amended Complaint, such damages were proximately caused by Roop, as set forth in Paragraph 25, above. 27. While it is specifically denied that Plaintiff is entitled to any recovery, should it ultimately be determined that she is entitled to recover, Roop is liable over to Defendants, or is jointly and severally liable to Plaintiff with Defendants, or is liable to Defendants. c:8. While it is specifically denied that Plaintiff is entitled to any recovery from Defendants, should such a recovery ultimately be imposed upon Defendants, Defendants are entitled to complete indemnification from Roop. In the alternative, if -5- International in an amount in excess of the jurisdictional limits for arbitration, together with an award of costs and such other relief as this Court deems appropriate. McNEES WALLACE & NURIC By ~---- ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin I D No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: February 3, 2012 Attorneys for Defendants -7- VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am Steve Arave, Risk Manager of Central Refrigerated Service, Inc., and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Steve Ar ve Dated: February ~, 2012 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA. 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 . , ,.~- -~-'" ~~ ~~ _ ranklin Date: February 3, 2012 ~~ ~~ RAWLE & HENDERSON LLP By: Michael T. Traxler Identification No.: 90961 Payne Shoemaker Building 240 N. Third Street, 9th Floor Harrisburg, PA 17101 (717) 234-7700 TO THE WITHIN NAMED PARTIES: You are hereby notified to plead to the enclosed ANSWER WITH NEW MATTER AND CROSS-CLAIM, within twenty (20) days from the date of service hereof or default judgment will be entered against you. RAWLE & HENDERSON 1.LP N. Stewart Michael T. Traxler Attorneys for Defendants Attorney for Defendants, Charles D. Roop and Cal-Ark International SHAWANDA LEDBETTER, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA vs. CIVIL ACTION NO. 2010-2987 TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES ~y r~ _ .~~ =:" _ .__ - Defendants, `;= :~ • ~ - .T, - vs. - _~. CHARLES D. ROOP and ; CAL-ARK INTERNATIONAL Defendants ADDITIONAL DEFENDANTS, CHARLES ROOP AND CAL-ARK INTERNATIONAL'SRMENDED ANSWER TO DEFENDANTS' AMENDED JOINDER COMPLAINT WITH NEW MATTER AND CROSS-CLAIMS Additional defendants, Charles Roop and Cal-Ark International, by and through their attorneys, Rawle & Henderson t.LP, answer Defendants' Amended Joinder Complaint as follows: 5361279-1 1. Admitted with clarification. This was anon-reportable accident. 2. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 3. Admitted. 4. Admitted. S. It is admitted only that Charles Roop was in the course and scope of his employment with Cal-Ark at the time of the alleged accident. It is specifically denied that Charles Roop took any action that contributed to the accident. Further, it is specifically denied that the acaions of Charles Roop were negligent or careless. 6. Denied. The Cal-Ark tractor trailer was not being operated or driven at the time of the accident. Rather, the Cal-Ark International tractor was parked. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. COUNTI Defendants v. Charles D. Roop Negligence 13. The defendants incorporate by reference the answers to Paragraphs 1 through 12 of the Amended Joinder Complaint as though the same were set forth at length herein. 14. Admitted. 15. Admitted. 5361279-1 . 16. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 17. Admitted in part; denied in part. It is admitted that the tractor trailer was parked. It is specifically denied that additional defendant Roop was operating or driving the tractor trailer. 1 E. Admitted in part; denied in part. It is admitted only that at the time of the accident, the tractor trailer was parked and additional defendant Roop was an occupant of the tractor trailer. It is specifically denied that the tractor trailer was sticking out into the designated travel area. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in this paragraph of the Amended Joinder Complaint, and therefore, set averments are denied. 19. Denied. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in this paragraph of the Amended Joinder Complaint, and therefore, said averments are denied. 20. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 21. Denied. Additional defendants have insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in this paragraph of the Amended Joinder Complaint, and therefore, said averments are denied. 22. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 5361279-1 2:3. The Amended Complaint is a document that speaks for itself. Accordingly, no responsive pleading is required. 24. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the C'al-Ark tractor trailer was illegally parked. 2~~. (a - g;- Denied. Additional defendants specifically deny that Charles Roop was negligent and demand strict proof thereof at trial. 'This Paragraph and its subparts contain conclusions of law to which no responsive pleading is required, and therefore, said averments are denied. Further denied as the allegations of negligence and carelessness were first asserted after the applicable statute of limitation. 26. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer wasp illegally parked. 27. Denied. This paragraph of the Amended Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer dial not conclude that the Cal-Ark. tractor trailer was illegally parked. 28. Denied.. This paragraph of the Amended. Joinder Complaint contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. Further denied as the investigating law enforcement officer did not conclude that the Cal-Ark tractor trailer was illegally parked. 5361279-I WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with cost:., fees, and such other and further relief as may be appropriate. COUNT II Defendants v. Cal-Ark International Vicarious Liability 29. The additional defendants incorporate by reference the answers to Paragraphs 29 through 3:? of the Amended Joinder Complaint as though the same were set forth at length herein 30. It is admitted only that Charles Roop was in the course and scope of his employment with Cal-Ark at the time of the alleged accident. It is specifically denied that Charles Roop took any action that contributed to the accident. Further, it is specifically denied that the actions of Charles Roop were negligent or careless. 31. It is admitted only that Charles Roop was in the course and scope of his employment with Cal-Ark at the tune of the alleged accident. It is specifically denied that Charles Roop took any action that contributed to the accident. Further, it is specifically denied that the actions of Charles Roop were negligent or careless. 32. Denied. This paragraph contains conclusions of law to which no responsive pleading is required, therefore, said averments are denied. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. 5361279-1 NEW MATTER 33. Defendants' Amended Joinder Complaint fails to state a claim upon which relief can be granted. 34.. Defendants' claims ar•e barred by the Statute of Limitations. 35. Defendants failed to comply with applicable state law, including, but not limited to, The Motor Vehicle Code. 36. Additional defendants claim all defenses available under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Act as set forth in 75 Pa.C.S.A. §1701 et seg. 37. No omissions or conduct on the part of additional defendants contributed to Plaintiff's alleged damages, if any. 38. Plaintiff failed to mitigate her alleged damages. 39, The damages complained of by Plaintiff pre-existed, or are unrelated to, the accident which is the subject matter of this Amended Joinder Complaint. 40. The negligence of Plaintiff either bars her right to recover completely, or reduces her claims under the doctrine of comparative negligence. 41. Plaintiff's alleged damages, if any, were the result of an unavoidable accident, sudden emergency, or Act of God. 42. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the negligent conduct of Plaintiff. 43. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the fault of Terry K Moran and Central Refrigerated Services for whom additional defendant is not legally responsible. 5361279-1 44. This Honorable Court lacks jurisdiction over additional defendants. 45. Collateral estoppel applies to preclude the claims asserted against additional defendants by defendants. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand that defendants' Amended Joinder Complaint be dismissed, and that judgment be rendered in their favor and against defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, and such other and further relief as may be appropriate. CROSS-CLAIM OF ADDITIONAL DEFENDANTS CHARLES ROOP AND CAL-ARK INTERNATIONAL AGAINST DEFENDANTS TERRY K MORAN AND CENTRAL REFRIGERATED SERVICES 46, Additional Defendants have denied and continue to deny any and all liability to Plaintiff and Defendants. If it is judicially determined that Plaintiff and/or Defendants are entitled to recover against additional defendants or that additional defendants are in any way liable by way of contribution or idemnity, that liability is the result of the actions, inactions or otherwise culpable conduct of defendants, Terry K. Moran and Central Refrigerated Services as more fully set forth in Plaintiff s Amended Complaint, the allegations of which are hereby incorporated by reference, but not admitted. Defendants, Terry K. Moran and Central Refrigerated Services are solely liable to the Plaintiff, jointly and/or severally liable to Plaintiff or they area liable over to additional defendants, in whole or in part, for any liability determined against additional defendants. 47. As a result of the actions, inactions or otherwise negligent conduct of defendants, Terry K. Moran and Central Refrigerated Services, as is more fully set forth in Plaintiff's Amended Complaint, the allegations of which are hereby incorporated by reference, but not admitted, defendants, Terry K. Moran and Central Refrigerated Services are liable to additional 5361279-1 defendants, Charles Roop and Cal-Ark International for the damage to their property and accident related costs and expenses. WHEREFORE, additional defendants, Charles Roop and Cal-Ark International, demand ghat Defendants' Amended Joinder Complaint be dismissed, and that: judgment be rendered in their favor and against Defendants, Terry K. Moran and Central Refrigerated Services, together with costs, fees, avid such other and further relief as may be appropriate. REQUEST FOR JURY TRIAL Thf° additional defendants hereby request a trial by jury on all issues that are triable. RAWLE & HENDERSON LLP BY~ ~~,-~ ~~ ~ ~si ~ ~ Gary N. Stewart, Esquire Michael T. Traxler, Esquire Attorneys for additional Defendants, Charles Roop and Cal-Ark International 5361279-I VERIFICATION MICHAEL T. TRAXLER, F;SQUIRE, hereby states that he is a member of the law firm of Rawle & Henderson LLP, attorneys for additional defendants, Charles Roop and Cal-Ark International, that he is authorized to take this verification on behalf of said defendant, Cal-Ark International. The undersigned verifies that he has read the within pleading and that the same is true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements set forth in said pleading are made subject to the penalties of 18 Pa. Corns. Stat. Ann. §4904 relating to unsworn falsification to authorities. ~ ~~ ~ i-- ~ MICHAEL T. TRAXLER, ESQUIRE DATED: ~/~ ~~ ~v ~' ~" ~ 5361279-I _ _ CERTIFICATE OF SERVICE I hereby certify that on today's date, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon all attorneys of record, addressed as follows: Marcus A. McKnight, III, Esq. [resin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiff) James J. Franklin, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (Counsel for Terry k:. Moran and Central Refrigerated Services) RAWLE & HENDERSON LLP Dated Gary N. Stewart, Esquire Michael T. Traxler, Esquire Attorneys for Defendants, Charles Roop and Cal-Ark International 5361279-i CERTIFICATE OF SERVICE 1 hereby certify that on today's date, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon all attorneys of record, addressed as follows: Marcus A. McKnight, III, Esq. Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiff) James J. Franklin, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (Counsel for Terry K. Moran and Central Refrigerated Services) RAWLE & HENDERSON LLP Michael T. Tr~er, s Attorney for Additional Defendants, Charles Roop and Cal-Ark International Dated: ~ z`3'/ `~~ 5918395-1 Kandice K. Hull ID No. 86345 James J. Franklin ID No. 306458 McNees Wallace &Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 t. . r ,~~ ~ ~ rt1 i y f~ R ` ~/ p ~ I t e i3 ss~ ti f~ ^u ~ 3- Attorneys for Defendants SHAWANDA LEDBETTER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, Defendants CIVIL ACTION LAW v. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants NO. 2010- 2987 CIVIL TERM ORIGINAL DEFENDANTS' RESPONSE TO ADDITIONAL DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS Defendants Terry Kay Moran ("Moran") and Central Refrigerated Service, Inc. ("CRS") (collectively, "Original Defendants"), by and through their attorneys, McNees Wallace &Nurick LLC, hereby submit this Response to the Motion for Judgment on the Pleadings tiled by Additional Defendants Charles D. Roop ("Roop") and Cal-Ark International ("Cal-Ark") (collectively, "Additional Defendants") 1. Admitted. 2. Denied in part and admitted in part. It is denied that the motor-vehicle accident occurred on June 7, 2008. Original Defendants admit the other averments of Paragraph 2. 3. Admitted in part and denied in part. It is denied that Plaintiff initiated the above- captioned action by filing for a Writ of Summons on May 5, 2010. Original Defendants admit the other averments of Paragraph 3. 4. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. 9. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. 10. Admitted that Original Defendants assert claims of negligence against Additional Defendants. I3y way of further answer, the Amended Joinder Complaint is a writing that speaks for itself. 11. Admitted. 12-15. Denied. The averments of these paragraphs constitute conclusions of law to which no response is required. 16-18. Denied. The averments of these paragraphs constitute conclusions of law to which no response is required. To the extent a response is required, Original Defendants deny that Additional Defendants did not owe a duty of care to Original Defendants. As established by the Amended Joinder Complaint, Additional Defendants, inter alia, owed a duty of care to other -2- motorists and patrons of the PETRO truck stop, specifically including Original Defendants, to avoid creating a dangerous condition by parking their tractor-trailer in the designated travel area. See Amended Joinder Complaint, ¶¶ 24-25, 32. As confirmed by the Incident Investigative Report issued by the Middlesex Township Police Department, Additional Defendants failed to properly park their tractor-trailer, thus creating a dangerous travel condition and breaching their duty of care owed to Original Defendants. The dangerous condition caused by Additional Defendants' actions and inaction was a proximate, factual cause of Plaintiff s injuries (Original Defendants denying such injuries) and any liability of Original Defendants therefor (Original Defendants denying such liability). 19-24. Denied. The averments of these paragraphs constitute conclusions of law to which no response is required. To the extent a response is required, the Amended Joinder Complaint includes a proper and viable prima facie cause of action for negligence against Additional Defendants, including allegations of duty, breach of the duty by Additional Defendants, and causation for the resulting injuries. 25-29. Denied. After reasonable investigation, Original Defendants are without information sufficient to form a belief as to the truth of these averments, and the same are, therefore, denied. Further answering, discovery in this matter is still ongoing. 30-31. Denied. Even if the facts alleged by Additional Defendants are true and accurate, they are still not entitled to judgment on the pleadings as a matter of law. Additional Defendants had a duty, both under the common law and Pennsylvania's motor-vehicle statutes and regulations, to control their tractor-trailer at all times and to avoid creating dangerous travel conditions through the use of their vehicle. That duty applies whether the vehicle is stopped or -3- in motion, and whether on a roadway or in a parking lot. By obstructing the designated area of travel, Additional Defendants created a dangerous condition in breach of that duty, thereby proximately causing a collision, which resulted in Plaintiff s alleged injuries. Pleading each of these necessary elements, the allegations of the Amended Joinder Complaint plainly establish a prima facie cause of action for negligence against Additional Defendants. 32. Admitted in part and denied in part. Original Defendants admit receiving correspondence from Additional Defendants dated July 16, 2012. The correspondence is a writing that speaks for itself, and Original Defendants deny Additional Defendants' characterization thereof. Counsel for Original Defendants responded by correspondence dated July, 20, 2012. 3 3. Admitted. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Service, Inc. respectfully request that the Court deny Additional Defendants' Motion for Judgment on the Pleadings. McNEES WALLACE & NURICK LLC ~~ By ~ _ Kandce K. Hull ~ ID No. 86345 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: November 26, 2012 Attorneys for Defendants -4- CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 ~"~~_-- ~,,---2_.--_,____~--_ ames J. Franklin Date: November 26, 2012 FILED-OFFICE, ,.E. Kandice J. Giurintano D F -11 i' P R'0 T H 0 N 0 TA ii Y ID No. 86345 James J. Franklin ID No. 306458 CUMBERLAND ("OUNTY McNees Wallace &Nurick LLC PENNSYLVANIA 100 Pine Street, P.O. Box 1166 Harrisburg,PA 17108-1166 (717) 232-8000 Attorneys for Defendants SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CIVIL ACTION LAW CENTRAL REFRIGERATED SERVICES, Defendants V. NO. 2010- 2987 CIVIL TERM CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants DEFENDANTS' MOTION TO COMPEL AND FOR SANCTIONS Defendants Terry Kay Moran ("Moran") and Central Refrigerated Service, Inc. ("CRS") (collectively,the "Defendants"), by and through their attorneys, McNees Wallace&Nurick LLC, hereby move this Court for an order compelling Plaintiff Shawanda Ledbetter("Plaintiff') to serve full and complete responses to Defendants' Request for Production of Documents- Second Set, and for an order awarding Defendants their costs and fees associated with Plaintiffs failure to appear at her originally-scheduled independent medical examination. In support of this Motion, Defendants aver as follows: Motion to Compel 1. Plaintiff commenced this lawsuit by filing a Praecipe for Writ of Summons on May 5, 2010. Plaintiff filed her Complaint in this matter on June 30, 2011. s 2. Defendants filed their Answer with New Matter on October 24, 2011, and a Joinder Complaint against Additional Defendants Charles Roop and Cal-Ark International on October 31, 2011. 3. On October 20, 2011, Defendants served preliminary Request for Production of Documents—First Set upon Plaintiff.' Plaintiff belatedly responded to the preliminary discovery requests, albeit only after forcing Defendants to file a Motion to Compel and a Motion for Sanctions and requiring two Orders of Court. 4. On February 4, 2013, Defendants served upon Plaintiff Interrogatories—First Set ("Interrogatories") and Request for Production of Documents—Second Set ("Document Requests"). A true and correct copy of the Document Requests is attached hereto as Exhibit "A." 5. Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff was required to respond within thirty (30) days of service of the Interrogatories and Document Requests. See Pa.R.C.P. Nos. 4001 et seq. 6. In a facsimile and letter dated March 5, 2013, Defendants' counsel reminded Plaintiff s counsel of Plaintiff s obligation to produce full and complete responses to the Discovery Requests by the March 6, 2013 deadline. A true and correct copy of the correspondence dated March 5, 2013 is attached hereto as Exhibit "B." 7. Defendants' counsel further reminded Plaintiff s counsel that the timing of Plaintiffs discovery responses was critical, as Plaintiff—an Alabama resident—was appearing in 1 Defendants initially served only a preliminary Request for Production of Documents—First Set in the hope that such requests would lead to a settlement agreement between the parties. Unfortunately,settlement discussions were not fruitful,and the parties remain far apart on any settlement agreement. Accordingly, it became necessary to serve a comprehensive set of discovery requests,dated February 4,2013. -2- Harrisburg, Pennsylvania on March 28, 2013 for a deposition; Defendants' counsel was to use the responses in preparing for Plaintiffs depositions and as potential deposition exhibits.2 8. Defendants subsequently granted Plaintiff an extension of time until March 15, 2013 for Plaintiff to respond to Defendants' Interrogatories; subsequently, on March 15, 2013, Plaintiff served her Answers to Defendants' Interrogatories. 9. Plaintiff did not request an extension of time as to the Document Requests. 10. Subsequently, Plaintiff s counsel informed Defendants' counsel that Plaintiff would not be producing responses to the Document Requests in advance of her deposition scheduled for March 28, 2013. 11. On March 20, 2013, Defendants' counsel served a Notice of Deposition Duces Tecum upon Plaintiff, requiring Plaintiff to produce certain documents at her deposition, including all radiological scans of her alleged injuries and relevant documents in response to the Document Requests. A true and correct copy of the Notice of Deposition Duces Tecum is attached hereto as Exhibit "C." 12. Prior to the deposition of March 28, 2013, Plaintiff failed to respond, object, or request an extension of time regarding the Discovery Requests or the Notice of Deposition Duces Tecum. 13. At her deposition on March 28, 2013, Plaintiff only produced a single, one-page medical record in response to the Notice of Deposition Duces Tecum. 14. During the course of the deposition, Plaintiff identified and admitted possessing or being able to acquire documents that were responsive to the Document Requests but that had not been produced to Defendants, including but not limited to photographs of the incident scene, 2 Defendants properly noticed Plaintiff of her March 28,2013 deposition on February 4,2013,the same date that Defendants served the Discovery Requests upon Plaintiff. Plaintiff failed to object to the Notice of Deposition. -3- documents allegedly evidencing her claimed disability, and applicable passenger authorization forms and insurance policies. See correspondence to Plaintiffs counsel dated April 9, 2013, a true and correct copy thereof attached hereto as Exhibit "D." 15. As of the date of this Motion, aside from a single set of AIG policy documents produced on May 3, 2013, Plaintiff has still failed to respond, object, or request an extension of time regarding the Discovery Requests and the Notice of Deposition Duces Tecum. 16. Despite oral affirmations from Plaintiffs counsel that they would produce all remaining responsive documents, this production has not occurred. 17. Plaintiff, through her actions and inaction regarding the Discovery Requests and the Notice of Deposition Duces Tecum, is in violation of the Pennsylvania Rules of Civil Procedure No. 4001 et seq. Motion for Sanctions 18. Through the correspondence dated March 5, 2013, Defendants' counsel notified Plaintiff s counsel that Defendants would require that Plaintiff submit to.an independent medical examination with respect to her alleged injuries. 19. As evidenced by the correspondence dated March 5, 2013, Defendants' counsel offered to accommodate Plaintiff by making all reasonable efforts to schedule Plaintiffs independent medical examination in conjunction with Plaintiffs scheduled March 28, 2013 deposition in Harrisburg, Pennsylvania. See Exhibit B. 20. Plaintiffs counsel responded by advising that Plaintiff was available for an independent medical examination in Harrisburg, Pennsylvania on March 27, 2013, the day immediately prior to her scheduled deposition; Defendants' counsel confirmed Plaintiff s aforementioned availability through correspondence dated March 14, 2013. A true and correct copy of the correspondence dated March 14, 2013 is attached hereto as Exhibit "E." -4- 21. Defendants' counsel also informed Plaintiff s eounsel that Defendants would be unable to postpone the independent medical examination without penalty after March 15, 2013. See Exhibit E. 22. As of March 15, 2013, Plaintiff and Plaintiffs counsel failed to notify or advise Defendants' counsel that Plaintiff was no longer available for the examination scheduled for March 27, 2013, the date chosen by Plaintiff. 23. Suddenly and without prior warning, on March 26 at approximately 4:30 p.m. — less than 24 hours before Plaintiffs scheduled independent medical examination—Plaintiffs counsel informed Defendants' counsel for the first time that Plaintiff would be unavailable for her independent medical examination on March 28, 2013. See correspondence to Plaintiffs counsel dated March 27, 2013, a true and correct copy thereof attached hereto as Exhibit "F." 24. Plaintiffs dilatory notice and failure to appear at her properly-noticed independent medical examination rendered Defendants unable to avoid the physician's full examination fee, totaling $1,400.00. 25. Although Defendants successfully rescheduled Plaintiffs independent medical examination for March 28, 2013, Defendants were obligated to pay a second examination fee, an additional sum of$1,400.00. 26. Defendants' counsel repeatedly demanded that Plaintiff and/or Plaintiff s counsel reimburse Defendants for the full amount of physician's fees associated with postponing the examination ($1,400.00), as well as for Defendants' attorneys' fees associated with this postponement(estimated to total $300.00). See Exhibits D and F. 27. To date, Plaintiffs counsel has failed to respond to the demand for reimbursement, despite Plaintiff admitting at her deposition that her failure to appear on March 27 was the sole basis for rescheduling the examination and acknowledging that her actions had -5- directly subjected Defendants to unnecessary expenses and fees. A true and correct copy of relevant portions of Plaintiffs deposition transcript is attached hereto as Exhibit "G." 28. Rule 4019 of the Pennsylvania Rules of Civil Procedure provides that a court may, upon reviewing a motion, make an appropriate order granting sanctions where a party has failed to make discovery in compliance with the rules of discovery. See Pa.R.C.P. No. 4019(a)(1)(vii) and (viii). 29. A discovery sanction should be selected to fit the offense. See Estate of Ghaner v. Bindi, 779 A.2d 585 (Pa. Super. 2001). 30. Pa.R.C.P.No. 4019(g)(1)provides that this Court may require a party to pay reasonable expenses, including attorneys' fees, incurred by the moving party in obtaining an order of compliance and a subsequent order for sanctions. 31. In light of Plaintiffs failure to appear at her independent medical scheduled for March 27, 2013, the very date chosen by Plaintiff, Defendants respectfully request as follows: a. Plaintiff reimburses Defendants for the additional independent medical examination costs incurred by Defendants, totaling $1,400.00. A true and correct copy of the physician's cancellation policy is attached hereto as Exhibit "H;" and, b. Plaintiff reimburses Defendants for the reasonable attorneys' fees incurred by Defendants in rescheduling the independent medical examination and in being forced to prepare and file this Motion, totaling $1,610.00. To the extent necessary, Defendant will provide true and correct copies of Defendants' relevant invoice statements at any hearing for this Motion. 32. Defendants' counsel certifies, through the actions described herein,that they attempted to resolve this dispute without additional Court involvement. These efforts have -6- proven unsuccessful, and Defendants' counsel now reasonably believes that further Court involvement is necessary to resolve this dispute. 33. On May 15, 2013, Defendants' counsel provided a true and correct copy of this Motion and the attached proposed Order to Plaintiffs counsel. 34. Plaintiffs counsel does not concur in this Motion. 35. This Court, the Honorable Edward E. Guido,previously issued an Order on March 15, 2012 granting Defendants' Motion to Compel against Plaintiff, and an Order on August 30, 2012 with respect to Defendants' Motion for Sanctions against Plaintiff. WHEREFORE, Defendants Terry Kay Moran and Central Refrigerated Service, Inc. respectfully request that this Honorable Court grant their Motion to Compel and for Sanctions and direct Plaintiff Shawanda Ledbetter to produce all overdue discovery responses and reimburse Defendants in the amount of$1,610..00 within ten(10) days of the date of the Court's Order. McNEES WALLACE &NURICK LLC By Kandice K. Hull ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: May 20, 2013 Attorneys for Defendants -7- Kandice K. Hull I.D.No. 86345 James J. Franklin I.D.No. 306458 McNees Wallace &Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717)232-8000 Attorneys for Defendants SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CIVIL ACTION LAW CENTRAL REFRIGERATED SERVICES, Defendants NO. 2010- 2987 CIVIL TERM CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants DEFENDANTS' REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF— SECOND SET TO: SHAWANDA LEDBETTER, Plaintiff, and MARCUS A. McKNIGHT, Esquire, her. attorney: PLEASE TAKE NOTICE that, pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, Defendants request that Plaintiff produce the documents hereinafter described and permit Defendan ts,through their attorneys, to inspect them and copy such of them as they may desire. Defendants request that the documents be made available for this inspection at the offices of Defendants' attorneys located at 7th floor, 100 Pine Street, Harrisburg, Pennsylvania, within thirty (30) days-of the date of service hereof. Defendants' attorneys will.be responsible for these documents as long as they are in their possession. J � This request is intended to cover all documents in the possession,custody, and control of Plaintiff, her agents, employees, insurance carriers, and attorneys and is considered to be continuing. Plaintiffs response to the Request should be modified or supplemented as Plaintiff, and/or her attorneys,obtain further or additional documents up to the time of trial. DEFINITIONS A. "You," "your," and/or "Plaintiff' mean and refer to the Plaintiff, Shawanda Ledbetter, or any agent or representative of Shawanda Ledbetter. B. "Defendants" means and refers to Central refrigerated Services ("CRS") and Terry K. Moran ("Moran"). C. "Accident" and/or "Incident" mean and refer to the incident that occurred at the PETRO Stopping Center ("PETRO"), located at 1201 Harrisburg Pike, Carlisle, Pennsylvania, 17013, on or about June 7, 2008, as alleged in Plaintiffs Complaint and that is the subject of this litigation. D. The term "Complaint," as used herein, means the Complaint filed by Plaintiff in the above-captioned action, as amended by Stipulation dated October 4, 2011. E. "Document" or "documents" shall mean any and all written, graphic material (however produced or reproduced), tapes or other voice recordings, and all other tangible objects including, but not limited to, booklets, brochures, pamphlets, circular notices, periodicals, papers, contracts, agreements, photographs, agendas, receipts, minutes, memoranda, written instructions, messages, appraisals, analyses, reports, plans, evaluations, financial calculations and representations, diary entries, time sheets, calendars, telephone logs, visitors logs,telephone message slips, correspondence, telegrams, press releases, advertisements, notes, handwritten -2- notes, transcripts, working papers, drawings, schedules, tabulations and projections, surveys, studies, graphs, charts, films, videotapes, microfiche, printouts, all other data whether recorded by electronic or any other means, and including drafts of any of the foregoing and any other data in your possession, custody or control, and including all items that are in storage anywhere. If a document was prepared in several copies or if additional copies were thereafter made, and if any such copies were not identical or are no longer identical by reason of subsequent notation or modification of any kind whatsoever, including, without limitation, notations on the front or back of any of the pages thereof;"then each such non-identical copy is a separate document and must be provided. F. The term "concerning" shall mean referring to, pertaining to, describing, evidencing, or constituting. G. The term "person" shall mean the plural as well as the singular and is defined as any individual, corporation, partnership,joint venture, firm, association, proprietorship, agency, board, authority, commission, or other entity. H. The word "meeting" shall mean any assembly, convocation, or contemporaneous presence of two or more persons for any purposes, whether or not planned, arranged, or scheduled in advance. 1. ' The terms evidencing, recording, referring, relating to, or relates as used herein shall mean, without limitation, embodying, showing, mentioning, disclosing, referring to, adverting to, alluding to, constituting, concerning, and/or revealing, directly or . indirectly, the subject matter identified in a specific interrogatory or document request. J. The following rules of construction apply to all discovery requests: -3- I. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. 2. Words used in the singular number shall include the plural number and vice versa. Gender is to be wholly disregarded,the neuter referring as well to the male as the female and the male referring to the female and the neuter. K. Where a claim of privilege is asserted in objecting to any document request or subpart thereof, and a document is not provided on the basis of such objection, the following information shall be provided in the objection: 1. the date of the document; 2. the author(s) of the document; 3, the identity of the attorney and client involved; 4. the type of document involved (e.g., memorandum, letter, contract,); 5. the identity of those receiving copies of the document; 6. the general content of the document; 7. the ground upon which such document is considered to be privileged; and 8. such other information as is necessary to identify the document for a subpoena duces tecum. -4- L. If you maintain that any document or record requested herein has been lost, misplaced, destroyed, or is otherwise no longer in your possession or control, set forth with respect to each such document: 1. the contents of the document; 2. a description of the document; 3. the present location of the original or any copies of the document; 4. the date of such loss or destruction; 5. a description of how and why the document was lost or destroyed; 6. the name of the person who ordered or authorized the destruction, or is most knowledgeable of the manner in which it was lost; 7. the author of the document and his address; and 8. the sender and recipient of the document, if applicable. M. This request for production of documents includes any and all relevant information and/or documents in the personal files of your present and former officers, employees, agents, representatives, attorneys, and accountants. -5- REQUESTS 1. All documents identified in, related to, or relied on in your answers to any Interrogatories propounded by any Defendant in this action. RESPONSE: 2. All passenger authorization forms and any other documents that authorized you to be a passenger in a commercial-motor vehicle operated by Charles D. Roop on the day of the accident or at any point during the five (5) years preceding the date of the accident. RESPONSE: 3. All documents which evidence, refer, or relate to any facts on the basis of which it' will be asserted that any Defendant caused or contributed to the happening of the accident and/or the resulting injuries allegedly sustained by you. RESPONSE: -6- 4. All documents, not previously produced, that evidence, refer, or relate to any facts upon which you will rely to show the existence of mental or physical injuries caused by any Defendant. RESPONSE: 5. All log books and other documents in your custody or control that evidence, refer, or relate to Charles D. Roop's operation of the commercial-motor vehicle in which you were located at the time of the accident. RESPONSE: 6. If you are claiming a permanent disability or impairment, all documents that evidence or confirm that permanent disability or impairment. RESPONSE: -7- 7. Please provide hard copies of any website pages that existed from the date of the accident to present, which evidence or describe: a. your injuries sustained on the date of the accident and any recovery therefrom; b. your medical treatment for injuries sustained on the date of the accident; and/or; C. your daily activities, travel,vacations, and/or social outings, whether for business or pleasure, since the date of the accident. Please include social websites, such as Facebook, MySpace, LinkedIn, etc. RESPONSE: 8. The report and current curriculum vitae of any expert retained by you in connection with this case. RESPONSE: -8- t 9. Any and all documents supplied to each expert witness you have retained with respect to this matter. McNEES WALLACE &NURICK LLC Y Kandice K. Hull I.D. No. 86345 James J. Franklin I.D. No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: February 4, 2013 Attorneys for Defendants -9- CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle,PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street,,9th Floor Harrisburg, PA 17101 ames J. Franklin Date: February 4, 2013 -10- i V i t i I i, es - Wallace & Nurick LLc 100 Pine Street PO Box 1166 . Harrisburg,PA 17108-1166 James J.Franklin Tel: 717.232.8000 e Fax: 717.237.5300 Direct Dial:717.237.5375 Direct Fax: 717.260.1784 jranklin@mwn.com March 5, 2013 VIA FAX —249-6354 AND FIRST CLASS MAIL Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Re: Ledbetter v. Moran, et al. No. 2010-2987 Civil Dear Mr. McKnight: Defendants in this matter will require that your client, Plaintiff Shawanda Ledbetter, undergo an independent medical examination in regards to her alleged injuries in the above- referenced matter. In a good faith effort to minimize any inconvenience to Plaintiff, we would prefer to arrange Plaintiffs independent medical examination in conjunction with her scheduled deposition on March 28, 2013 in Harrisburg, Pennsylvania. Accordingly, we are taking all reasonable steps to schedule the IME for a date and time between March 27-March 29, 2013. We will provide you with further information regarding the IME once we have confirmed the same. In the interim, please let us know if you have any questions or concerns. Finally, you are aware that Plaintiffs responses to Defendants' Interrogatories — First Set and Request for Production of Documents — Second Set are due tomorrow, March 6, 2013. Because Plaintiff has neither requested an extension of time to respond nor otherwise indicated her inability to comply with that deadline, we expect to receive Plaintiffs full and complete responses on time. Plaintiffs observance of this deadline is necessary to avoid potential delay regarding Plaintiffs deposition and IME. Accordingly, Plaintiffs failure to abide by the deadline will force Defendants to promptly seek appropriate relief from the Court. Very truly yours, McNEES WALLACE & NURICK LLC By James J. Franklin JJF/msb c: Michael T. Traxler, Esquire www.mwn.com HARRISBURG, PA e LANCASTER, PA A STATE COLLEGE, PA • COLUMBUS, OH n WASHINGTON, DC ,` } 1���>� - _.. r . 3 „ ; > j t e r i [ Kandice K. Hull I.D.No. 86345 James J. Franklin I.D. No. 306458 McNees Wallace &Nurick LLC 100 Pine Street,P.O. Box 1166 Harrisburg, PA 17108-1166 (717)232-8000 Attorneys for Defendants SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS.OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CIVIL ACTION LAW . CENTRAL REFRIGERATED SERVICES, Defendants NO. 2010- 2987 CIVIL TERM V. CHARLES D. ROOF, and CAL-ARK INTERNATIONAL, Additional Defendants NOTICE OF DEPOSITION DUCES TECUM TO: SHAWANDA LEDBETTER, Plaintiff, and MARCUS A. MCKNIGHT, I1I, ESQUIRE, her attorney: PLEASE TAKE NOTICE that,pursuant to Pennsylvania Rules of Civil Procedure 4007.1, Defendants, Terry Kay Moran and Central Refrigerated Services,by and through their undersigned attorneys,'will take the deposition upon oral examination of Plaintiff, Shawanda Ledbetter on March 28, 2013,beginning at 9:00 a.m. at McNees Wallace & Nurick LLC, 100 Pine Street,Harrisburg, PA 17101 before a Notary Public, or other person authorized to administer oaths, for the purposes of discovery, discovery in aid of execution, and/or use at trial, r r - on all matters not privileged, which are relevant and material to the issues and subject matter involved in the above captioned action. The deposition shall be deemed continuing and shall continue from day to day until concluded. Plaintiff Shawanda Ledbetter is noticed to bring the following documents with her at the above time and place: 1. Any and all copies of any radiological tests or scans completed since the date of the accident regarding Plaintiffs alleged injuries in this matter, including but not limited to an MRI(s) completed on November 4, 2008 at St. Vincent's. Medical Center and on January 16, 2009 at Infirmary West; and, 2. Any and all documents,previously not produced in discovery to Defendants, in response to Defendants' Request for Production of Documents, dated October 20, 2011, or Defendants' Interrogatories and Request for Production of Documents, dated February 4, 2013. McNEES WALLACE &NURICK LLC By C/ Kandice K. Hull I.D. No. 86345 James J. Franklin I.D. No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: March 20, 2013 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin& McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 ames J. Franklin Date: March 20, 2013 w �� "loll E E McNees Wallace & Nurick LLc 100 Pine Street# PO Box 1166 • Harrisburg, PA 17108-1166 .lames J. Franklin Tel: 717.232.8000 b Fax: 717,237,5300 Direct Dial:717.237.5375 Direct Fax: 717.260.1784 jranklin@mwn.com April 9, 2013 Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Re: Ledbetter v. Moran, et al. No. 2010-2987 Civil Dear Mr. McKnight: As you are aware, and as we discussed at your client's deposition on March 28, 2013, we are still without Plaintiffs Responses to Defendants' Request for Production of Documents — Second Set, dated February 4, 2013. At her deposition, Plaintiff herself admitted possessing documents responsive to those requests. Further, at her deposition, Plaintiff referenced several categories of relevant documents, including photographs of the accident scene, that Plaintiff has not produced during the course of this litigation. Although the documents identified by Plaintiff clearly fall within the scope of Defendants' document requests, I again made a formal request for Plaintiffs production of such documents. You did not object to any of those repeated requests. Accordingly, in order to avoid a Motion to Compel, we demand that within ten (10) business days of the date of this correspondence Plaintiff produce full and complete responses to all outstanding discovery requests, including but not limited to producing the categories of documents identified by Plaintiff at her deposition. Lastly, we ask that you acknowledge and confirm Plaintiffs responsibility for the costs and fees associated with rescheduling Plaintiffs independent medical examination with Dr. Balog, with such costs and fees totaling $1,700.00. If we have not received such confirmation from you - within ten (10) business days of the date of this correspondence, then we will seek appropriate relief from the Court, including a request for all additional costs and fees associated with obtaining such relief. www.mwn.com KaRRI.MlRr. PA e I ANCASTFR_ PA 0 STATE rnl l FrP PA • ('.ni MAPHic (1N • IAlncwnirrM, nr. Marcus A. McKnight, III, Esquire April 9, 2013 Page 2 We look forward to receiving your response. Very truly yours, McNEES WALLACE & NURICK LLC By James J. Franklin JJF/msb c: Michael T. Traxler, Esquire i McNees Wallace & Nurick PLC 100 Pine Street PQ Box 1166 * Harrisburg,PA 17108-1166 James J. Franklin Tel: 717.232.8000 * Fax: 717.237,5300 Direct Dial:717.237.5375 Direct Fax: 717.260.1784 jranklin @mwn.com March 14, 2013 Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Re: Ledbetter v. Moran, et al. No. 2010-2987 Civil Dear Mr. McKnight: I am in receipt of your correspondence dated March 7, 2013 requesting an extension of time for Plaintiff to respond to Defendants' Interrogatories in the above-referenced matter. As I discussed with your office on the morning of March 11, 2013, we will grant Plaintiff an extension of time until the close of business on Friday, March 15, 2013. Your office also confirmed Plaintiff Shawanda Ledbetter's availability for an independent medical examination in Harrisburg on March 27, 2013. Based upon that representation, be advised that we have scheduled Plaintiffs independent medical examination with Dr. Balint Balog for March 27, 2013. Ms. Ledbetter will need to arrive at Dr. Balog's.office, located at the Orthopedic Institute of Pennsylvania, 450 Powers Avenue, Harrisburg, PA, 17109, no later than 3:30 p.m on the day of the examination. You must inform us immediately, and under no circumstances later than noon on Friday March 15, if Plaintiff is no longer available for her IME on March 27. Otherwise, we will be unable to postpone the IME without penalty, and we will thus. seek reimbursement from Plaintiff for all fees and charges associated with the IME. Plaintiff is directed to bring with her to the IME all radiographs pertinent to her alleged injuries. Finally, please advise whether anyone will accompany Plaintiff to the IME so that we may pass that information along to Dr. Balog's office. Let us know if you have any questions or concerns. Very truly yours, McNEES WALLACE & R-ICK LLC By �� -` James J. Franklin JJF%msb c: Michael T. Traxler, Esquire www.mwn.com HARRISBURG, PA • LANCASTER, PA • STATE COLLEGE, PA • COLUMBUS, OH • WASHINGTON, DC -McNees Wallace & Nurick LLC 100 Pine Street• PO Box 1166 - Harrisburg,PA 17108-1166 James J.Franklin Tel: 717.232.8000 m Fax: 717,237,5300 Direct Dial:717.237.5375 Direct Fax:717,260.1784 jfranklin@mwn.com March 27, 2013 VIA FAX—249-6354 AND FIRST CLASS MAIL Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Re: Ledbetter v. Moran, et al. No. 2010-2987 Civil Dear Mr. McKnight: The purpose of this correspondence is to confirm that your client will not appear for her scheduled independent medical examination today at 3:30 in Dr. Balint Balog's Harrisburg, Pennsylvania office, and to remind you of the resulting consequences. As you will recall, via correspondence dated March 5, 2013, we informed you of Defendants' desire to schedule an independent medical examination for Plaintiff in conjunction with her scheduled deposition on March 28, 2013. In response, Plaintiff confirmed that she was available for an independent medical examination in Harrisburg on March 27, 2013, and she agreed to submit herself to an IME on that date. We memorialized Plaintiffs representations and confirmation regarding her availability for an IME on March 27, 2013, in our correspondence to you dated March 14, 2013. For your convenience, a copy of the March 14, 2013 correspondence is enclosed herewith. Notably, in the March 14, 2013 correspondence we clearly informed you that Plaintiff must notify us no later than Noon,on Friday March 15, 2013 if Plaintiff would no longer be available for the [ME on March 27. We explained to you that without such timely notice, Defendants would be unable to postpone the IME without penalty, and that if Defendants' incurred such penalty as a result of Plaintiffs untimely postponement of the IME or failure to appear at the IME, that De i fendants would seek reimbursement of all resulting fees and charges from Plaintiff. Neither Plaintiff nor your office advised Defendants of any such unavailability. Suddenly, without any prior warning or notice, at approximately 4:30 p.m. on Tuesday, March 26, 2013 — less than 24 hours before Ms. Ledbetter's scheduled IME—your office left a www.mwn.com HARRISBURG, PA - LANCASTER, PA 0 STATE COLLEGE, PA • COLUMBUS,OH WASHINGTON, DC 4 Marcus A. McKnight, III, Esquire March 27, 2013 Page 2 voice message with my office informing us that Plaintiff would not be available for her IME on March 27, but that she still would be available for her deposition on March 28 in Harrisburg. In that message, your office failed to provide any reasonable justification for her sudden unavailability, instead merely stating that Plaintiff was somewhere on the West Coast and would not be in Harrisburg by the.afternoon of March 27. Based upon this dilatory and insufficient notice, we will notify Dr.*Balog's office of the need to postpone Ms. Ledbetter's IME. As we had previously cautioned you, however, we expect to incur fees and charges associated with the same day postponement, with Dr. Balog's fees alone expected to total $1,400.00. Obviously, Defendants will also incur additional attorneys' fees and paralegal fees associated with this postponement. We estimate these additional fees to total $300.00. Accordingly, we demand that Plaintiff reimburse to Defendants the amount of$1,700.00 for the fees and expenses incurred by Defendants as a direct result of Plaintiffs failure to appear for her IME. Be advised that if Plaintiff refuses to submit reimbursement in this full amount, Defendants will seek appropriate relief from the Court, including reimbursement of all additional fees and expenses associated with any necessary Court filings and/or appearances. Lastly, we have been unable to confirm Dr. Balog's availability to conduct an IME on March 28, 2013. Accordingly, it will be necessary to reschedule Plaintiffs IME in Harrisburg for another date. We will provide you with Dr. Balog's availability for the rescheduled IME in the near future. Based upon your representations, Plaintiffs deposition scheduled for tomorrow, March 28, will proceed as planned. We would appreciate a response to this correspondence by close of business on Monday, April 1, 2013. Very truly yours, McNEES WALLACE & NURICK LLC By James J. Franklin JJF/msb Enclosure c: Michael T. Traxler, Esquire McNees Wallace & Nurick.LLC 100 Pine Street• P0.Box 1166 • Harrisburg,PA 17108-1166 - James J.Franklin Tel: 717.232.8000 • Fax: 717.237,5300 Direct :717.260.5375 Fax Direct Fax:717.260.1784 Franklin @mwn.com March 14, 2013 Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Re: Ledbetter v. Moran, et al. No. 2010-2987 Civil Dear Mr. McKnight: I am in receipt of your correspondence dated March 7, 2013 requesting an extension of time for Plaintiff to respond to Defendants' Interrogatories in the above-referenced matter. As I i discussed with your office on the morning of March 11, 2013, we will grant Plaintiff an extension of time until the close of business on Friday, March 15, 2013. Your office also confirmed Plaintiff Shawanda Ledbetter's availability for an independent medical examination in Harrisburg on March 27, 2013. Based upon that representation, be advised that we have scheduled Plaintiffs independent medical examination with Dr. Balint Balog for March 27, 2013. Ms. Ledbetter will need to arrive at Dr. Balog's office, located at the Orthopedic Institute of Pennsylvania, 450 Powers Avenue, Harrisburg, PA, 17109, no later than 3:30 p.m on the day of the examination. You must inform us immediately, and under no circumstances later than noon on Friday March 15, if Plaintiff is no longer available for her IME on March 27. Otherwise, we will be unable to postpone the IME without penalty, and we will thus seek reimbursement from Plaintiff for all fees and charges associated with the IME. Plaintiff is directed to bring with her to the IME all radiographs pertinent to her alleged injuries. Finally, please advise whether anyone will accompany Plaintiff to the IME so that we may pass that information along to Dr. Balog's office. Let us know if you have any questions or concerns. Very truly yours, McNEES WALLACE & tllR1CK LLC By James J. Franklin { JJF/msb c: Michael T. Traxler, Esquire W".mWn.com HARRISBURG,.PA • LANCASTER, PA • STATE COLLEGE, PA • COLUMBUS,OH • WASHINGTON, DC I l IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHAWANDA LEDBETTER and GREG LEDBETTER, her husband, . CIVIL ACTION LAW and CHARLES D. ROOP, Plaintiffs .NO. 2010-2987 CIVIL TERM VS . TERRY KAY MORAN and CENTRAL . REFRIGERATED SERVICES, Defendants VS . CHARLES D. ROOP and CAL-ARK . INTERNATIONAL, Additional Defendants . . . . . . . . . . . . . . . Deposition of: SHAWANDA LEDBETTER Taken by: Defendants Date : March 28 , 2013, 10 : 45 a .m. Before : Vicki L. Fox, RMR, Reporter-Notary Place : 100 Pine Street Harrisburg, Pennsylvania APPEARANCES : IRWIN & McKNIGHT BY: MARCUS A. McKNIGHT, III, ESQUIRE JOHANNA KAPURA, PARALEGAL 60 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone : (717 ) 249-2353 For - Plaintiffs III Filius&McLucas Reporting Service,Inc. Harrisburg 717-236-0623 York 717-845-6418 1-800-233-9327 Exam./Franklin-Shawanda Ledbetter 150 152 1 time? 1 IME for yesterday,Wednesday;correct? 2 A. That is his personal vehicle when it is not 2 A. Yes,sir. 3 under a load. 3 Q. You were told that? 4 Q. And so he drove straight here;is that correct? 4 A. Yes,sir. 5 A. Yes,sir. 5 Q. In fact,you have known that for a few weeks; 6 Q. Did you have any bad weather? 6 correct? 7 A. Oh,it snowed so bad. It was snowing all 7 A. Yes,sir. 8 morning and all night. 8 Q. And you are not disputing that the only reason 9 Q. But you did your best to get here on time? 9 that IME did not happen yesterday was because 10 A. I did. 10 you were not in Harrisburg;correct? 11 Q. And you are going to be staying overnight in the 11 A. I am not disputing that;no,sir. 12 truck;is that right? 12 Q. In response to several of your attorney's 13 A. Yes,sir. 13 questions or one of your attorney's questions— 14 Q. And then you are going to be able to go to the 14 excuse me—you mentioned that the tractor Mr. 15 IME tomorrow;is that correct? 15 Roop was driving now when it's not on company 16 A. Yes. At four o'clock,yes,sir. 16 time is his personal vehicle? 17 Q. Well,you are going to be there at 3:30? 17 A. Yes,sir. 18 A. 3:30. 18 Q. Does he own that tractor? 19 Q. You have a CPS so you know how to get there? 19 A. No. In four more payments,he will. 2 0 A. Yes,sir. 20 Q. Is that a different arrangement that he has now 21 MR.McKNIGHT: Those are all the questions 21 . than what he had with Cal-Ark back in 2008? 22 1 have. 22 A. Yes,sir. 2 3 MR.FRANKLIN: I have a few more. 23 Q. He wasn't working to pay off the tractor back 24 BY MR.FRANKLIN: 24 then? 2S Q. Mrs.Ledbetter,you chose to bring this lawsuit 2 5 A. He was on a—he was driving for the company 151 153 1 against my clients;right? 1 and not--see Cal-Ark is the mother company to 2 A. Yes,sir. 2 Central. Central is the Leasing Department. 3 Q. No one forced you to bring the lawsuit? 3 And after so long,he just decided it would 4 A. Well,actually,yes. Because I called them 4 be best for his future and his profession to go 5 afterwards and I asked Central Refrigeration,I 5 ahead and get one to lease to own. So it is 6 said I have an ambulance bill and an emergency 6 going to be his in like four more payments. 7 room bill,and I can't pay them. You all hit 7 Q. So the two companies are related? 8 me. 8 A. Yes,sir. 9 And their exact words were if you want 9 Q. Was he ever discharged from Cal-Ark,if you 10 anything from us,sue us. That was their exact 10 know? 11 words. 11 A. He quit. He swapped--actually,he swapped 12 Q. Do you remember who you talked to? 12 over. It wasn't really quit. He just told his 13 A. No,sir. But I tell you Mr.Dennis Hilton in 13 dispatcher that he wanted to become an 14 Safety for Cal-Ark,they told him the exact same 14 owner/operator. 15 thing. Because he was telling them--he called 15 Q. Do you know if he was disciplined at all as a 16 them to see if they would comp.Chuck for time 16 result of this accident? 17 lost in the hotel rooms that we had to stay in. 17 A. No,sir. 18 And they told him if you want anything from 18 Q. I just have one more series of questions. Your 19 us,sue us. I never sued nobody. 19 Interrogatories Answer Number 24,I could show 20 Q. Okay. And you realized the suit would be 2 0 you if you need it. 21 brought in Pennsylvania;correct? 21 I asked you to identify any passenger 22 A. No,sir. I didn't realize that. I knew the 22 authorization forms— 23 accident happened in Pennsylvania,but I don't 23 A. Yes,sir. 24 know how things work. 24 Q. --that you had to fill out or execute so you 25 Q. And you knew that you had been scheduled for an 25 could accompany Mr.Roop? 39 (Pages 150 to 153 ) Filius &McLucas Reporting Service,Inc. Harrisburg 717-236-0623 York 717-845-6418 1-800-233-9327 ALL-STATOLEGAL 000-222-0510 ED11 RECYCLED ET.J � .4! O `w0✓ R 03/13/2013 12:09 (FAX)7179201854 P.001/001 Balint Balog.M.D. Gregory A.Hanks,M.D, Richard J.Boal,M.D. Brett A.Himmo1wristh.D.O. Raymond 13,Dahl,D.O. Robert R.Kaneda,D.O.F.A.C.O.S Robert R.Dahmus,M.D. J", Ronald W.Lippe.M.D.,FAC.s. Stephen W.Dailey,M.D, William I Polacheek,M,D, Steven M,DoLuca,D.O. Ernest R.Rubbo.M.D. William W.DeMuth,M.D.,F.A,C,$ 01P Michael Warner,M.D. John F.FrInkeny 11.M,I>,.F.A.C4. CIRTHt 111TUNC.1WTMUY11 Steven B.Wolf.M.D. Curtis A,Gultz,D.O. OF PE-f4N.qYI-VANIA Kathryn G.Mueller.FA-C Richard H,Hallock,M.D. Jefffoy W.Peary,PA•C TELEPHONE:(717)761-5530 — TOLL FREE:(800)834-4020 FAX:(717)737-7197 www.ol%com March 13,2013 ATTN:ALICIA KOGUT VIA AUTOFAX:717-260-1651 RE: IME for Shawanda Ledbetter on March 27,2013 at 4:00 p.m. 450 Powers Ave Harrisburg,Pa 17109 Dear Ms Kogut: Thank you for scheduling an examination with our practice.Please note the following terms and conditions regarding Dr. Balint Balog's independent medical exams: • A nonrefundable deposit of$200.00 is required ton business days after scheduling the IME or the appointment will be cancelled. • The balance of$1,200.00 is due ten business days before the exam or the IME will be cancelled. • No reftinds will be given If the IME is cancelled less than six business days before the appointment or it the patient does not show for the appointment. • An IME cancelled less than six business days before the scheduled appointment and then rescheduled will result In a new charge of$1,400.00, • The requester must submit an exam cover letter and the complete medical record seven business days prior to the exam or an$800.00 medical records review fee will be charged. • In cases where the records are voluminous,an$900.00 records review fee will be charged. • The patient must being all pertinent radiographs to the appointment and arrive rtftccn minutes prior to the exam time. e As there Is no physician/patient relationship In the context of an IME and the IME records sent to the OIP physician for review are not part of OTP's designated record set,all records sent for review will be destroyed twelve months from the date of the IME.If couns&I wiffi slawbAus PW.4U"j�"4##Jaqvi 11 . 104 1,(?At J%retain writing when making payment for the IME. Please send all correspondence,records and payments to 3399 Trindle Road,Camp Hill.PA 17011)If you have any further questions,please contact the office at(7 17)920-8911. Sincerely, Rena Homer Secretary to Balint Ralog,M.D.(Tax IDN: 23-1875547) ORTHOPUDIC SURGEONS.LTD ADDRESS ALL CORRESPONDENCE TO:3399 TRINDLE,RD.CAMP HILL.PA 17011 CAMP HILL OFFICE IFARRISHLIRG OrPICE IIERSHEY Q_M_QF, 3399 TRINDLE RD,CAMP HILL,PA 17011 4$0 POWERS AVE,,HARRISBURG,PA 17109 32 NORTHEAST DR.,STE 201.HERSHEY,PA 17033 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin& McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 t James J. Franklin Date: May 20, 2013 SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY KAY MORAN and CIVIL ACTION LAW CENTRAL REFRIGERATED " SERVICES, Defendants `' _= NO. 2010- 2987 CIVIL TERM V. -a CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, 'W Additional Defendants RULE.TO SHOW CAUSE AND NOW, this 41 "0d'ay of MA ! , 2013, upon consideration of Defendants' Motion to Compel and for Sanctions, a Rule is issued upon Plaintiff Shawanda Ledbetter to show cause why the Motion should not be granted. RULE RETURNABLE TWENTY(20) DAYS FROM SERVICE. AN ARGUMENT IS SCHEDULED FOR4!14 2013, AT IN COURTROOM,_OF THE CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYLVANIA. BY E CO J. Distribution: Marcus A. McKnight, Esquire, Irwin& McKnight, P.C., 60 West Pomfret Street, Carlisle, PA 17013, Phone-(717) 249-2353 (Counsel for Plaintiff) ✓ James J. Franklin, Esquire, McNees Wallace &Nurick LLC, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166, Phone-(717)237-5375 (Counsel for Defendants) Michael T. Traxler, Esquire, Rawle & Henderson, LLP' Payne Shoemaker Building, 240 North Third Street, 9th Floor, Harrisburg, PA 17101, Phone-(717) 234-7700 (Counsel for Additional Defendants) CopI cy ftj_�;Ltu il.:I 21li 3 JUN -7 PIN II: 03 Kandice J. Giurintano CUMBERLAND COUNTY ID No. 86345 PENNSYLVANIA Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants SHAWANDA LEDBETTER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA • v. : CIVIL ACTION LAW TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, : Defendants : NO. 2010- 2987 CIVIL TERM v. • CHARLES D. ROOP, and • CAL-ARK INTERNATIONAL, • Additional Defendants CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendants, certify that: (1) a Notice of Intent to serve the subpoena with a copy of the subpoena attached thereto were mailed to Plaintiffs Counsel at least twenty days prior to the date on which the subpoenas are to be served; (2) a copy of the Notice of Intent, including the proposed subpoena, is attached to this certificate as Exhibit A; (3) the twenty (20) day objection period has passed, and no objections were filed with the Court; (4) the subpoena which will be served are identical to the subpoena which is attached to the Notice of Intent to Serve Subpoena. McNEES WALLACE & NURICK LLC By Kandice Kerwin Hull ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: June 6, 2013 Attorneys for Defendants x�, d, A Kandice J. Giurintano ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants SHAWANDA LEDBETTER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA • v. : CIVIL ACTION LAW TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, : Defendants : NO. 2010- 2987 CIVIL TERM v. • • CHARLES D. ROOP, and • CAL-ARK INTERNATIONAL, • Additional Defendants NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: SHAWANDA LEDBETTER, Plaintiff and MARCUS A. MCKNIGHT, III, ESQUIRE, her attorney: PLEASE TAKE NOTICE THAT Defendants, Terry Kay Moran and Central Refrigerated Services, ("Defendants") intend to serve a subpoena to produce documents identical to the one attached to this Notice. You have twenty days from the date listed below in which to file of record and serve upon the undersigned any objection to the subpoenas to produce documents. If no objection is made, the subpoena may be served. McNEES WALLACE & NURICK LLC By 'I / Kandice Kerwin Hull ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: May 14, 2013 Attorneys for Defendants • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHAWANDA LEDBETTER, • Plaintiff : CIVIL ACTION LAW v. • • TERRY KAY MORAN and CENTRAL REFRIGERATED SERVICES, : NO. 2010-2987 CIVIL TERM Defendants • v. • • CHARLES D. ROOP, and • CAL-ARK INTERNATIONAL, • Additional Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Carlisle Regional Medical Center, 381 Alexander Spring Road, Carlisle, PA 17015 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: any and all medical records, including but not limited to x-rays, MRI scans, radiographs, and images, as it relates to Shawanda Ledbetter, DOB: 12/6/1977 at McNees Wallace & Nurick LLC, 100 Pine Street, P.O. Box 1166, Attn: Alicia Koaut, Harrisburg, PA 17108-1166 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Kandice Kerwin Hall ID No. 86345 Kimberly A. Selemba ID No. 93535 James J. Franklin ID No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants BY THE COURT: DATE: By Seal of the Court CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 - /James J. Franklin Date: May 14, 2013 • CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Marcus A. McKnight, Ill, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Michael T. Traxler, Esquire Rawle & Henderson, LLP Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, PA 17101 J es J. Franklin Date: June 6, 2013 f � 1a SHAWANDA LEDBETTER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, , nz PENNSYLVANIA V. TERRY KAY MORAN and CIVIL ACTION LAW rv ' C3 CENTRAL REFRIGERATED t-4 SERVICES ` c' Defendants ca --`' NO. 2010- 2987 CIVIL TERM V. CHARLES D. ROOP, and CAL-ARK INTERNATIONAL, Additional Defendants ORDER AND NOW, this_ day of , 2013, it is hereby ORDERED that upon review of Defendants' Motion to Compel and for Sanctions, and any responses thereto,that the Motion is GRANTED as follows: 1. Plaintiff Shawanda Ledbetter shall produce all documents responsive to Defendants' Request for Production of Documents— Second Set and Notice of Deposition Duces Tecum within ten(10) days of the date of this Order, including but not limited to all responsive documents identified by Plaintiff during her deposition on March 28, 20.13; the ai ure o appear a er mdepen eft me ica examina ion sc e d J s r v , i counsel shall direct reimburseme attorneys' ' s 1 men ays o e e o BY T LOUR J. Distribution: +/ Marcus A. McKnight, Esquire, Irwin & McKnight, P.C., 60 West Pomfret Street, Carlisle, PA 17013, Phone—(717) 249-2353 (Counsel for Plaintiff) " James J. Franklin, Esquire, McNees Wallace &Nurick LLC, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166, Phone—(717) 237-5375 (Counsel for Defendants) 'Michael T. Traxler, Esquire, Rawle & Henderson, LLP, Payne Shoemaker Building, 240 North Third Street, 9th Floor, Harrisburg, PA 17101, Phone_(717) 234-7700 (Counsel for Additional Defendants) -2-