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HomeMy WebLinkAbout01-7121CHARLES D. HILL, LISA F. DIAZ, Plaintiff V. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. IN CUSTODY PLAINTIFF'S COMPLAINT TO CONFIRM CUSTODY 1. Plaintiff is Charles D. Hill, an adult individual currently residing at 236 Buford Avenue, Gettysburg, Adams County, Pennsylvania. 2. Defendant is Lisa F. Diaz an adult individual currently residing at 21 Whitehorse Road, Shippensburg, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of the child, $ordan Lee Hill, aYk/a Jordan Diaz, aJk/a Lee Diaz, aJc/a Lee Thomas Wells, who was bom on December 13, 1990. 4. The child was bom in wedlock. 5. Since the child's birth, the child has resided with the following persons at the following addresses for the following periods of time: 6. The relationship of the Plaintiff to the child is that of father. He is divorced and living separately. The Plaintiff currently resides with the following: Name Relationship Michelle Williams Girlfriend 7. The relationship of the Defendant to the child is that of mother. She is married and living separately. The Defendant currently resides with the following: Nalne Jorge Diaz Jordan Lee Hill Unknown(s) Relationship Husband Son Child(ren) of Defendant 8. The parties have participated in previous litigation conceming the custody of the child in Adams County Court, No. 93-S-501; however, a final determination was never made. CHARLES D. HILL V. LISA DIAZ : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-7121 CIVIL TERM : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 15TM day of JULY, 2002, it appearing to the Court that we have no available time to reschedule the custody hearing before September, the request for a continuance is DENIED. Edward E. ' Thomas Williams, Esquire For the Plaintiff Jeanne Costopoulos, Esquire For the Defendant :sld 9. Defendant has refused to permit contact and has affirmatively interfered with Plaintiff's attempts to see his son. 10. The Plaintiff has no information of a custody proceeding concerning the child pending in any other court. 11. The best interest and permanent welfare of the child will be served by granting custody to Plaintiff because: As his natural father, he can best provide a stable and nurturing home for his son. 12. Plaintiff does not know of any person not a party to these proceedings who claims to have custody or visitation fights with respect to the child. WHEREFORE, Plaintiff requests your Honorable Court to set a time and place for a hearing at which Plaintiff requests the Court to grant him the Custody Order. Pending said hearing, Plaintiff requests temporary custody. MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. Willi~ns, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: December 19, 2001 VERIFICATION The foregoing Complaint for Custody is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Charles D. Hill RECEIVE[,, NOV O2 2001 MDWr~ CHARLES D. HILL : PLAINTIFF V. : 01-7121 LISA DIAZ DEFENDANT : 1N CUSTODY E F IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW AND NOW, Tuesday, January 08, 2002 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jaequeline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Wednesday, February 06, 2002 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ facqueline M. Verney. Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites 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 heating or business before the court. You must attend the scheduled conference or heating. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 CHARLES D. HILL, Plaintiff : v. NO. 01- 7/Z/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LISA DIAZ, Defendant : IN CUSTODY ATTORNEY'S ACCEPTANCE OF SERVICE !, Tracy M. Sheffer, Esquire, attorney for Defendant Lisa Diaz in the above-qaptioned action, hereby accept service o fthe Custody Complaint in the above action on I~-[ ~/b , on her behalf and certify that I am authorized to do so. BATTERSBY & SHEFFER ~lM5. S~ffer, Esquire 20 West M~n S~eet Fairfield, PA 17370 CHAI~I,F,S D. Plaintiff/Respondent LISA DIAZ, THE COURT OF COMMON PLEAS OF CUMBE~ COUNTY, PENNSYLVANIA No. 7121 Civil Term CIVIL ACTION - AT LAW Defendant/Petitioner CUSTODY PETITION i*OR C'I~IIRT TO DECN',INE .IIIRISDICTION AND NOW COMES, the Petitioner, Lisa Diaz, by and through her attorney, Jeann6 B. Custopoulos, Esquire, and files this Petition for Court to Decline Jurisdiction, respectfully representing as follows: 1. Petitioner is Lisa Diaz, Defendant in the above captioned custody action (hereinatk~ refened to as '~othef'). 2. Respondent is Charles D. Hill, Plaintiff in the above captioned custody action (bereinaflex referred to as "Father"). 3. On or about December 20, 2001, Father filed a Complaint to Confirm Custody at the above term and docket number. See, Plaintiff's Complaint to Confirm Custody, provided herewith as Exhibit A. 4. In his Complaint, Father made the following averment: The parties have paaicipated in previous litigation concerning the custody of the child in Adams County Court, No. 93-S-501; however, a final determination was never made. 5. That brief statement does not provide This Honorable Court with the actual histo~ and current status of the litigation in Adams County. 6. Approximately two years following the subject child's birth, Father filed a custody action in the Adams County Court of Common Pleas at docket number 93-S-501. 7. The initial custody decree, Adams County Order of Com~ dated July 16, 1993, ordered general physical and legal custody to rest with Mother; because of the small mount of time Father had, up to that point, spent with the subject minor child. It was further ordered that a phase-in period be estabhshed and that Mother be permitted to inspect Father's residence to determine its suitability for the child. See, Order of Court, dated July 16, 1993, provided herewith as Exhibit B. 8. The July 16, 1993 Order provided Father alternating Saturdays and Sundays from 9:00 a.m. until 7:00 p.m. each day. At the time, the subject child was 2iA years old. 9. Pursuant to the July 16, 1993 Order, Mother attempted to inspect Father's domicile; however, he informed her that he did not live at the address he had given as his domicile and that he would not be pursuing overnight visits. 10. A second conference was scheduled for October 19, 1993 and was continued because Father again decided that he did not wish to pursue overnight visits. 11. On January 25, 1994, a custody conference was held at which time the Adams County Cour~ Administrator was directed to schedule a hearing. Furthermore, a home study was ordered, the cost of which was to be paid by Father. See, Order of Court dated January 25, 1994, provided herewith as Exhibit C. 12. Father failed to cooperate with a home study. Father also ~ailed to exercise the visitation awarded to him in that on the few times he exercised visitation at all, he never once kept the child for the em'tm allotted time perio& In addition, Father would give the child to his girlfriend during the few short periods of visitation he chose to exercise. When Mother confronted him about this after taking the child from Father's girlfriend upon finding the child alone with her at a Walmart~ Father ceased all visitation with the child. 13. In the fall of 1996, Mother filed a petition requesting child support. Following the issuance of a bench wanant at the support docket, Father filed a request for a custody conference. 14. The Court held a conference in chambers on November 27, 1996. Father failed to appear, but the court nevertheless permitted him to participate by phone. Following the conference, upon finding that Father had not been exercising his fights pursuant to the July 16, 1993 Order, the court suspended Father's visitation rights and again directed that a hearing be scheduled and that a home study of Father's home be conducted. See, Order of Court, dated November 27, 1996, provided herewith as Exhibit D. 15. Father once again failed to pay for the home study and the court entered an Order on May 29, 1997 directing Father to pay the home study fee within ten days, the failure of which would result in dismissal of his request for a hearing. The Court stated that the matter would be assigned to a Conference Hearing Officer if payment were made. See, Order of Court, dated May 29, 1997, provided herewith as Exhibit E. 16. To date, Father has nut paid the home study fee. Furthermore, he never contacted Mother regarding the child until November 8, 2001, at which time Father's counsel sent a letter directly to Mother, admitting Father's past dependability problems and lack of relationship with his son, but nevertheless suggesting that Father now wanted to begin to establish a relationship with the child and that she should cooperate. See letter dated November 8, 2001, provided herewith as Exhibit F. 17. On November 20, 2001, Mother's Adams County counsel, Tracy Iv[ Sbeffer, Esquire, responded to the November 8, 2001 letter, informing Father's counsel that the child had expressed a desire to have no contact with his father. The letter further requested Father to sign a consent for adoption so Mother's husband, who had taken the role of the child's father for the past several years, could adopt the child. See letter dated November 20, 2001, provided herewith as Exhibit G. 18. Father's counsel responded to the November 20, 2001 letter via facsimile dated December 14, 2001 stating that Father would not agree to relinquish his parental rights or consent to adoption. See facsimile dated December 14, 2001, provided herewith as Exhibit H. The instant action shortly followed. 19. Clearly, Respondent was given numerous opportunities to obtain and exercise visitation with the subject child throughout the Adams County custody litigation. 20. Despite previous Orders of Court granting visitation rights, scheduling heatings, and Ordering home studies, Father has failed to establish any sort of relationship with the subject child. In fact, as evident in paragraph 3 of his Complaint to Confinn Custody, Father does not even appear to know the full name of his son, whose name has been Lee Thomas Wells since birth, 21. The child, who is now 11 years old, has not seen Father since he was two or three years old. In essence, he does not know him, nor does he wish to know him. 22. Mother has had full physical and legal custody of the child since birth. The child eousiders Mother's husband, Jorge Diaz, as his father. Consequently, Mother is filing a Petition for Involuntary Termination of Parental Rights and Petition for Adoption in Adams County in an effort to terminate Father's rights so her husband may adopt the child. 23. It is believed and averred that the child would suffer irreparable harm if forced to visit with Father this time. 24. It believed and therefore averred that Father is, by filing a Custody Complaint in This Honorable Court, attempting to forum shop for a venue that does not know the history of this case. 25. Father's Complaint to Confirm Custody is not a petition or complaint for an initial decree or order. Instead, it is a Petition to Modify the current interim Order of Adams County dated November 27, 1996. It is believed and averred Father's only reason for filing a fresh complaint in Cumberland County is to avoid the "adverse inference" the Adams County court indicated in its Order dated Janumy 25, 1994 that it would draw in the event Father failed to pay the home study fee. 26. With regarding to modification of an order from another court, 23 Pa~C.S.A. §5364(H)(1) states: "If another court has made a custody decree, a court before which a petition for modification is pending shall not modify the decree of the other court unless it appears to the court before which the petition is pending that the other court which rendered the decree does not have jurisdiction under jurisdictional prerequisites substantially in accordance with this subehapter or has declined to assme jurisdiction to modify its decree and the provisions of subsection (t)(2) will not be violated by an exercise ofjurisdiction by the court before which the petition is pending." 27. As applied to the instant case, under 23 Pa.C.S.A. §5364(H)(1) Cumberland County should not modify the Adams County custody order unless Adams County does not have jurisdiction under jurisdictional prerequisites substantially in aecordance with 23 Pa~C.S.A. §5362, OR if Adams County has declined to assume jurisdiction to modify its prior order, AND the provisions of 23 Pa.C.S.A. §5364(F)(2) will not be violated by an exercise ofjurisdietion by Cumberland County. (a) Adams County has jurisdiction pursuant to 23 Pa.C.S.A. §5344. (b) Adams County has not declined to assume jurisdiction to modify its interim order of January 25, 1994. Father simply needs to pay the home study fee and request a conference and the case will resume as previously scheduled. (c) Cumberland County would violate 23 Pa.C.S.A. §5364(F) if it exercised jurisdiction in this case. 23 Pa.C.S.A. §5364(I*)(2) states: "... If the petitioner has violated any provision of a custody decree of another court, the court shall decline to exemise its jurisdiction unless the contestant can show that conditions in the custodial household are physically or emotionally harmful to the child. The burden of proof on this issue is on the contestant requesting the court to take jurisdiction." At the time of filing of his Cumberland County Complaint to Confirm Custody, Father was in violation of the Adams County Order dated May 29, 1997 in that he has yet to pay the home study fee. In addition, Father cannot meet his burden to show that the conditions in Mother's household are physically or emotionally harmful to the child. 28. 23 Pa.C.S.A. §5364(F)(3) permits the court to charge attorney's fees upon dismissal of an action pursuant to 23 Pa.C.S.A. §5364(F). Mother has incurred legal fees in the amount of $250.00 for the filing of this Petition. In addition, she will incur additional counsel fees of $500.00 for the custody conciliation conference presently scheduled before Jacqueline Vemey, Esquire, on Februmy 6, 2002 at 9:30 a~m. unless said conference is cancelled. 29. Father should not object to the case remaining in Adams County since his address, as set forth in paragraph 1 of his Complaint to Confirm Custody, is in Gettysburg, Adams County. 30. This Honorable Court should decline to exemise jurisdiction in this matter as all prior proceedings in this matter were held in the Court of Common Pleas of Adams County and that Honorable Court is familiar with the case and was the court to issue all previous custody orders, including the order currently in effect. 31. Under the circumstances and for the reasons set forth above, Cumberland County is an inconvenient forum in which to litigate this case. WHF_llEFORE, Petitioner prays This Honorable Court will dismiss Respondent's Complaint to Confirm Custody, declining to exercise jurisdiction in this matter, and award attorney's fees against Respondent. Alternatively, Petitioner prays This Honorable Court to stay these proceedings pending conclusion of the Adams County proceedings regarding Involuntary Termination of Parantal Rights and Adoption. Respectfully submitted, Jeann~ B. Costo~ ATTORNEY FOR DEFENDANT 1400 N. Second Street Harrisburg, PA 17102 (717) 221-0900 Supreme Ct. ID No. 68735 CHAlZI.ES D. HILL, Plaintiff/Respondent LISA DIAZ, Defendant/Petitioner THE COURT OF COIVlMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 7121 Civil Term CIVIL ACTION - AT LAW CUSTODY ATTORNEY VERIFICATION Undersigned counsel, Jeann~ B. Costopoulos, Esquire, hereby verifies and states that: 1. She is the attorney of record for Lisa Diaz, Defendant/Petitioner. 2. She is authorized to make this verification on her behalf 3. The facts set forth in the foregoing Petition are known to her and not necessarily to her client. 4. The facts set forth in the foregoing Petition are true and correct to the best of her knowledge, information, and belief. 5. She is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: BY: 1400 North Second Street Harrisburg, PA 17102 (717) 2214)900 PA Supreme Ct. ID No. 68735 ATTORNEY FOR DEFENDANT CHAR!.ES D. HILL, Plaintiff/Respondent Defendant/Petitioner THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 7121 Civil Term CIVIL ACTION - AT LAW CUSTODY C~RTnZlCATI~. OF SFRVICF. I, Se, mm6 B. Costopoulos, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person, and in the manner, indicated below, which service satisfies the requirements of the PA Rules of Civil Procedure, by depositing a copy of the same with the United States Post Office at Harrisburg, Pennsylvania, through first class mail, prepaid, and addressed as follows: Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 Date: BY: Jeann~ B. Costopoulos, Esquire ATTORNEY FOR DEFENDANT 1400 N. Second Street Harrisburg, PA 17102 (717) 221-0900 Supreme Ct. ID No. 68735 EXHIBIT A CHARLES D. HILL, LISA DIAZ, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ol- IN CUSTODY ORDER OF COUP. T AND NOW, this dayof , upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear before , the conciliator, at on the day of ,__, at .m. for a Pfc-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be hcard by the Court, and to cntcr into a temporary order. All children age five or older may also bc prcscnt at thc conference. Failure to appear at the conference may provide grounds for entry of a temporary or permaoent ordcr. FOR THE COURT, By: Custody Conciliator Thc 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 facilitics and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at Icast 72 hours prior to any hearing or busincss bcforc thc court. You must attend the scheduled confcrcncc or hearing. YOU SHOULD TAKE THiS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW 'FO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 CHARLES D. HILL, LISA F. DIAZ, Plaintiff Dcfcndm~t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01- : IN CUSTODY PLAINTiTF'S COMPLAINT TO CONFIRM CUSTODY : ~ i ' ' Plaintiff is Charles D. Hill, an adult individual currently residing at 236'Buford Avenue, Gettysburg, Adams County, Pennsylvania. 2. Defendant is Lisa F. Diaz an adult individual currently residing at 21 Whitehorse Road, Shippensburg, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of the child, Jordan Lee Hill, a/k/a Jordan Diaz, a/Ua Lee Diaz, a/k/a Lee Thomas Wells, who was bom on December 13, 1990. ' ~ 4. The child was bom in wedlock. 5. Since thc child's birth, the child has resided with the folloxving persons at the following addresses for the following periods of time: 6. The relationship ofthe Plaintiffto the child is that of father, tie is divorced and living separately. Thc Plaintiffcurrently resides with the following: Name Relationship Michclle Williams Girlfriend 7. The relationship of the Defendant to the child is that of mother. She is nmrried and living separately. The Defendant currently resides with the following: Name Relationship Jorge Diaz [lusband Jordan Lee Hill Son Unknown(s) Child(pen) of Defendant 8. The parties have participated in previous litigation concerning thc custody of the child in Adams Counly Court, No. 93-S-501; hov,'cvcr, a I~nal dctcrmin:ltmn xvas never made. 9. Defendant has refused to pem~it contact and has affirmatively interfered with Plaintiff's attempts to see his son. 10. The Plaintiffhas no in formation ora custody proceeding concerning the child pending in any other court. 1l. The best interest and permanent welfare of the child wilI be served by granting custody to Plaintiffbccause: As his natural father, he can best provide a stable and nnrturing home for his son. 12. Plaintiffdoes not know of any person not a party to these proceedings who claims to have custody or visitation rights with respect to the child. WHEREFORE, Plaintiffrcquests your Honorable Court to set a time and place for a bearing at which Plaintiffrequests the Court to grant him the Custody Ordcr. Pending said hearing, Plainti ff requests temporary custody. MARTSON DEARDORFF WILLIAM~ & OTTO Date: December 19, 2001 BY~/_s,,~-~LI~'. /][) , Ten East t~q~ Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff VERIFICATION The foregoing Complaint for Custody is based upon infom~ation which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that o fcounsel and not my own. [ have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties nft 8 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that if I make knowiogly false averments, I may be subject to criminal penalties. Charles D. tqill EXHIBIT B 1 4 5 6 7 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 THE COURT OF C,~,NHO.. PLEAS OF ADAMS or~:DF.~, C~ CCURT Charles Dirk Hill Lisa Faye Wells A~ NOW, July 16, 1993, the parties appeared with counsel. This action concerns custody o~ Lee Thomas Wells, who was born December 13, 1990. Mother kas e×e[cJse~ general custody ~ince the child's birth. It bas been she shall continue to exercise general physical and 1~1 cus~o~y and it is so Ordered. Fathe? is seeking partial custody rigbt~. Because of the small amount of contact, it JR necessary that D phase-in period be established. motbe~ needs to inuestigate the su~tabillty of father's for overnights. This cgnfer~nce is continue~ at the call of either party. Mother is expected to inspect father's domicile York. Father will haue the chi3$ on alternating weekends beginnin9 July 24, 1993. He will hav~ the child fro~ 9:00 a.m. until 7:00 p.m. on Saturday and from 9:0C a.m. until 7:00 p.~. on Sunday. Counsel are encouraged to submit tbJs by stipulation to save another coDference if that Js poss~b]e. 1 Alicia K. Wooters, RFR Official Cou:t Reporter 1 7 9 10 11 12 13 14 16 17 18 19 2O 21 ~2 23 26 will provide transpoLtation. BY T~E CCU~T, Father Jeffe:'y Cook, Esq. Tfacy Sheffer, Esq. 2 Alicia K. Wooters, P~R Offlc~al Cou~t ~epo::te~ EXHIBIT C 2 4 5 6 7 9 11 14 15 16 17 18 19 2O 22 24 25 IN THE COURT OF COMM0.~ PLEA~ OF kDAM~3 COUNTY, ~ENNSYLVAN!A Civil .... ' Charles Dir~ Hill 93-8-501 v~. . Lisa Faye Wells . ORDER OF CCURT ~: <'- ~.~ AND NOW, January 25, 1994, the parti~s appeared with counsel. The arrangement that was ordered July 16, 1993 ha~ apparently not successfully worked out. Mother bas stated tha~ father has been inconsistent in his vieits and did not give her an opportunity to inspect bis home. Mother further sta~es that father had represented that be was foregoin9 Lis request for uvernight visits. He has stated that she has made the child available at father's request only to find that father has not shown up. Pathe~ states that he bas changed the location where he hopes to spend overnights. He hopes ~o spend overnights with the ¢,ha&d at the home of Kerry Robinson, Apartment B, 409 Ye~k Street, Gettysburg. The Court Administrator is directed to schedule a ball day hearing. Adams County Children and Youth Services shall p~rform a home study upon payment of a proper fee. The fee will be the responsibility of father to pay. If he fail~ to pay, ~n adverse inference will be drawn. He will be under no obli~atlon to pay, however, until the following occurs: Alieia K. Wooters, RPR Official Court Reporfer 1 1 2 5 ? lO i1 12 13 17 i8 22 Jeffery Cook, Esq. Tracy Sheffe~, Esq. A. Mother bas had a reasonable opportunity to ir.:~pect the home of Miss ~o~inson. B. Mother's COunsel makes fcrmal demand upon father's counsel loc payment. In orde~ to minimize the confusion that has attended the prior order, the schedule estab!J~hed in that order shall begin Vebruary 5 and 6. Father uill pick up the child at mother's residence. If father is more t~an 20 minutes late and in %he absence o[ prior arrangements, that partleular v~sit shall be deemed Cancelled. Either party may call w~tnes~es a~d introduce exhibits if at leas% ten days prior to the hearing a lis~ i~ provided opposing counsel. Failure to comply may result in preclusion of that evidence, BY TRE COURT, O~car F. ~Jcer, ,// Alicia K. Wooter$, RPR Official Court Reporter EXHIBIT d 10 11 12 13 14 15 17 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 ORIGINAL IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA Civil ,. Charles Dirk Hill 93-S-501 Lisa Faye Wells ORDER OF COURT AND NOW, this 27th day of November, 1996, the Court has conducted a preliminary conference in chambers with father participating by telephone. The last order entered in this case was on January'25, 1994. The father has not exercised his rights under that order for reasons which are in dispute. Mother states that father was not interested in exercisLng the rights. Father states that he was thwarted from exercising the rights. It is apparent that a hearing is necessary and the Court Administrator is directed to schedule a one-half day hearing in this matter. The sole issue will be partial custody. The Court reserves the right to assign this case to a conference hearing officer. Each party is directed to notify the other of witnesses and exhibits at least ten days prior to the hearing. The father has indicated that he and his mother will be testifying. Mother has provided a prehearing memorandum. Failure to identify Witnesses and/or exhibits / 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Tracy Sheller, Esq. rhk may result in preclusion of evidence. In the interim, since father has not been exercising the rights of January 25, 1994, that order is suspended. Mother will exercise temporary and legal custody pending further order of Court. Father has agreed to pay for a home study of his home. He lives with his father apparently in York. Mother will make arrangements and mother's counsel will contact father concerning those arrangements. BY THE COURT, Oscar F. Spi~, p.j. . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CIVIL CHARLES DIRK HILL VS. LISA FAYE WELLS 93-S-501 ORDER OF COURT AND NOW, this 29th day of May, 1997, father is directed to pay mother's counsel the Home Study fee mentioned November 27, 1996, within 10 days. Failure to do so will result in dismissal of his request for a hearing. The matter will be assigned to the Conference Hearing Officer if payment is made. pl Charles Dirk Hill, pro se Tracy Sheffer, Esq. BY THE COURT, OSCAR F. ~ICER President Jtidge M DW&O (7171 243-!850 November g. 2001 JOHN B, .FO'.Xki~ Ii1 Jord~ Lee Hill OurFile No. 10453.1 De=Ms, Wells: have oeen consuked by Cb.~les Hill regarding lording, I know fl'.ere has been dependability proNt:ms in lhe past; however. Charlas wan:s to estab'hsh a relationship with his son. My.suggestion is tha: this start with a telephone conversation oetween father and son; if suceessPal, th=.,, car,'.ihcn meet face-to-bce and then, perhaps, a visii. We ,-ecognize th>it Chi/r!eshas tm sscd a good pan of his son's grrOW 'F.g I.Itl and ] e underst,,mds building a re]at onship ~fl'l be gu'adual and take time...Also, Charles has told me he does not Wahl tc cause 'm~y d)m~pr, ior. to you or you.r ~ami2y. I recommended ro Charles that we initially solicit ) ocr assistance to worJ¢ cooperatn, el~ in btiikling a relar£onsNp between tat. her and child R.!s my hope this .gan be done infon'aaily and withou~ me necessity of any cou~ filing. If you agree, and wm,.t to contact Charles directly, hi~ mail ......... '6-:afl'be ~i'hl t~5 236 Buf0Yc[./gi~en'a0jG'ettyso ttrg, I~A t 7325~ h-is'hbme telephone'nO~ber is 3374201; or emai! can be sent to mwwindber,gi~.uvergalnet. Ifypu prefer, I would be happy t> dise.~ss flus w, ith you personally. Very truly yours, R~La, RTSON DEARDORFF W1L=IAMS & OTTO Thomas J Williams TJW/tde cc: Mr. Cliarh's Hill IN POR.MA'rlON ADVICE ,~D'/OCACYTM BATTERSBY" g/'SHEFFER Attorneys At Law P.O. Box 215 · 20 W. Main Street · Fairfield, PA 17320 717-642-6260 · Fax 717-642-8652 MATTHEW R. BATTERSBY TRACY M. SHEFFER* *Admitted in PA and MD November 20, 2001 EO. Box 879 Emmitsburg, Maryland 21727 301-447-3167 Please Address All Correspondence to Fair£ield, PA Thomas J. Williams, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle PA 17013 Re: Lee Thomas Wells, son of Lisa F. (Wells) Diaz Dear Attorney Williams: I represent Lisa F. Diaz, formerly Lisa Wells. She is the mother of Lee Thomas Wells, whom it appears your client believes was named Jordan Lee Hill; however, Lee Thomas Wells has been the child's name since birth. As you are aware, it has been many years since Mr. Hill has had any contact with' Lee. When Mr. Hill did have contact, it was sporadic at best. I have enclosed a copy of the last court order regarding custody of Lee. Ms. Diaz has discussed with Lee the issues raised in your letter. The child is of the age now where his wishes are paramount. Lee has clearly expressed his desire to have no contact with Mr. Hill. If Mr. Hill intends to press this issue, it will seriously and detrimentally affect Lee. Mr. Diaz, my client's husband, has been Lee's father figure for many, many years and desires to adopt Lee. I have also enclosed a consent for adoption. If Mr. Hill will agree, please have him sign the consent and return same to me. If, in the future, Lee expresses a desire to meet his biological father, Ms. Diaz will not hesitate to contact Mr. Hill. If Mr. Hill intends to proceed to court with this, please note that Ms. Diaz will agree to venue in Adams County, which will be more convenient to Mr. Hill. Sincerely, TMS/jhe enclosures cc: Lisa F. Diaz MDW ,tO TEN EAST HiGH SYREET Ch~.LISLE, ?ENNSYLVAIqtA; 7013 TE~E~ EONS. (717) 243-33~.1 F^CS',MmE (717) 243- l 850 ll, rr~m'qm' www.mdwo.eorn ATTORNEYS & COL~qS£LLORS AT LAw Wttt~ F. lvI,~rsoN Jous B. FowL~ III EDWaRO L. SC~OR~P D~EL K, DEA~O~I; THOMAS J, WILLIAMS* Ivo V. O~o III O~o~a~ B. FA~ J~* C~, C. ~s~ ~ A. D~N~mOER FACSIMILE TRANSMISSION TO: Tracy M. Sheffer FROM: Thomas Williams FAX: 642-8652 FAX: 717-243-1850 DATE: December 14, 2001 PAGES: 1 (including this sheet) RE: Wells v Hill I met with Charles Hill last night regarding the issues raised in your letter of November 20. He absolutely will not agree to relinquish his parental rights, nor consent to adoption. He has instructed me to proceed to establish some visitation with his son. I will be filing papers next week. Let me know as soon as possible if you are able to accept service. He doesn't want that much. If Lisa would back off her extreme position just a little we could save our clients a lot of money, aggravation and heartache. And he knows he's going to be paying support. FEB 0 CHARLES D. HILL, PLaintiff Ve LISA DIAZ, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 2001-7121 CIVIL TERM : : IN CUSTODY ORDER OF COURT AND NOW, this ! ~"°day of ~, 2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A Hearing is sc..hed..~ed in Cour~Roo_m_lx~o. ,ff., of the Cumberland County Court House, on the ~ day of/~,~,~~, 2002, at /~: OO o'clock,/~ . M., at which time testimony will be taken on the issue of jurisdiction only. For purposes of this Hearing, the Mother shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on jurisdiction, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least ten days prior to the Hearing date. 2. Pending a heating on the jurisdictional issue, Mother agrees to obtain counseling for the child to determine whether it would be detrimental for the child to establish contact with Father. The counselor shall be selected by mutual agreement of the parties' attorneys. Mother shall be responsible for the costs of said counseling. Mother shall sign a release if necessary so that Father and/or Father's attorney shall have the right to discuss the matter with the counselor. 3. The parties shall return to another Conciliation Conference on April 10, 2002 at 10:30 a.m. BY THE / cc:/'l)homas J. Williams, Esquire, counsel for Father u/Jeanne B. Costopoulos, Esquire, counsel for Mother 02' Iq-02 FEB 07 ZOO2 P CHARLES D. HILL, Plaintiff LISA DIAZ, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 2001-7121 CIVIL TERM : : IN CUSTODY PRIOR JUDGE: None CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Lee Thomas Wells December 13, 1990 Mother 2. A Conciliation Conference was held February 6, 2002 with the following individuals in attendance: The Father, Charles D. Hill, with his counsel, Thomas J. Williams, Esquire, and the Mother, Lisa Diaz, with her counsel, Jeanne B. Costopoulos, Esquire. 3. The Honorable Oscar Spicer of the Court of Common Pleas of Adams County previously entered Orders dated July 16, 1993, January 25, 1994, November 27, 1996 and May 29, 1997. The Orders provided for Father to pay for a Home Study before any custody was to be granted. Father never paid for a Home Study. 4. Mother filed a Petition for Court to Decline Jurisdiction at the above docket number on February 4, 2002. Said Petition is pending before this Honorable Court. The Conciliator recommends the Petition be denied based on the child residing in Cumberland County for nearly seven (7) years. Most if not all contact and witnesses impacting on the best interest of the child should be in Cumberland County. 5. A Petition to Terminate Parental Rights was recently filed in Adams County. Neither Father nor his counsel have received a copy of said Petition to date. 6. Father's position on custody is as follows: He seeks phased-in contact with the child. Father claims the last time he had contact with the child was by telephone in 1997. But when he called again, the telephone number had been changed. Father asserts that Mother has thwarted his attempts at contact. Father admits to not having sent any cards, letters, gifts, or support for at least seven years. Father maintains that jurisdiction should be Cumberland County since the child has resided in Cumberland County for nearly 7 years. Father is willing to have the child talk to a counselor to determine whether reestablishing contact with Father would be detrimental to the child. 7. Mother's position on custody is as follows: She believes that it would be detrimental to the child to establish contact with the Father. She is willing to have the child speak with a counselor to determine whether it would be detrimental to the child to have contact with Father. Mother is willing to pay the expense of the counselor. Mother denies she has thwarted Father's attempt at contact. Mother believes that Cumberland County should decline jurisdiction because of the prior Orders in Adams County. Mother admits that the child has lived in Cumberland County for nearly seven years. 8. The Conciliator recommends an Order in the form as attached scheduling a Hearing. The only issue to be determined at the hearing is the jurisdictional question. The parties agree to the other provisions of the recommended order. It is expected that the Hearing will require one hour. Date 0'acqu~'line M. Verney, Esquire Custody Conciliator CHARLES D. HILL, Plaintiff/Respondem VS. LISA DIAZ, Defendnt/Petitioner 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-7121 CIVIL CIVIL ACTION - LAW IN RE: PETITION FOR COURT TO DECLINE JURISDICTION ORDER AND NOW, this ! ~' day of February, 2002, a role is issued on the plaintiff to show cause why the relief requested in the within petition ought not to be granted. This rule returnable twenty (20) days after service. BY THECOURT, ess, J. CHARLES D. HILL, LISA DIAZ, Plaintiff : V. : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- 7121 IN CUSTODY ~LAINTIFF'S ANSWER TO DEFENDANT'S PETITION _FOR COURT TO DECLINE JURISDICTION AND NOW COMES, thc Respondent, Charles D. Hill, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to thc Petition for Court to Decline Jurisdiction, as follows: 1-4. Admitted. 5. Denied. Plaintiff cited Adams County Court, No. 93-S-501 and this record clearly speaks for itself. 6-8. Admitted. 9. Denied as stated. Father informed Mother that he was without the means to pay for a home study which, at that time, was a necessary prerequisite for overnight visits with his son. Father at all times wanted visits with his son and continues to want them. 10-11. Admitted. 12. Denied. Seegabove. Itis denied that Father never once kept the child for the entire allotted time period. It is denied that Father would "give the child to his girlfriend" during the periods of visitation he chose to exercise. 13-15. Admitted. 16. Admitted in part and denied in part. It is admitted that Father has not paid the home study fee. It is averred that this was due solely to financial constraints. The major reason for Father not having a good relationship with his son was mainly due to Mother's efforts to prevent same compounded by his financial limitation. F ' · ather s counsel &d send a letter directly to Mother, on or about November 8, 2001, regarding the lack of relationship with his son, and suggesting that Father now wanted to begin to establish a relationship with the child. 17-18. Admitted. 19. Denied. Father has attempted to establish some custody rights for his son and these efforts were frustrated by Defendant, Lisa Diaz (Mother) and by a lack of finances to overcome the obstacles placed in his path. Father lost track of Mother's whereabouts thereby was unable to exercise his custody fights. 20. Denied. Father wished to develop a relationship with his son; however, Father was denied the development of a relationship with the child due to Mother's actions. 21. Denied. Father wishes to develop a relationship with the child. In the past Father was thwarted from developing a relationship with the child due to Mother's actions. 22. Admitted in part and denied in part. It is admitted that Mother has had full physical and legal custody of the child since birth. Father has not been permitted any access to his son and so cannot know who his son considers his father; however, Father has heard that his son has been asking about him. It is admitted that Mother had filed a Petition for Involuntary Termination of Parental Rights and a Petition for Adoption in Adams County in an effort to terminate Father's fights so her husband may adopt the child. Said petition is "on hold" pending the outcome of custody proceedings in Cumberland County. 23. Denied. The child would not suffer irreparable harm if visits with Father would occur at this time. Father will consider, first and foremost, the feelings of his son and to govern the pace and extent of their relationship accordingly. 24. Denied. Mother and the child have resided in Cumberland County for several years. There is no question that Cumberland County is the "home county" as defined in Pa. R.C.P. 1915.1 (b). Mother points to the fact that a custody action was initiated in Adams County many years ago; however, that action was never concluded. Moreover, it was brought at a time when Mother and child resided in Adams County. Further, no present member of the Adams County Court had any involvement in that action. 25. No response is required; to the extent that any response is required it is denied. The payment of a home study fee has no bearing on Father's desire to see his child. Rather, any failure to pay a home study fee is due to economic constraints. 26-27. This is a legal conclusion to which no response is required; to the extent a response is required it is denied. (b) Denied. Father is unable to pay a home study fee due to economic constraints. (c) This is a legal conclusion to which no response is required; to the extent that a response is required it is denied. Any failure of Father to pay a home study fee is due to economic constraints, which has nothing to do with Father's desire to see the child. 28. Admitted. 29. Denied. It is hornbook law that Plaintiff may choose his forum, and such forum should not be disturbed absent compelling reasons. 30. Denied. This Honorable Corot should exemise jurisdiction in this matter. Mother points to the fact that a custody action was initiated in Adams County many years ago; however, that action was never concluded. Moreover, it was brought at a time when Mother and child resided in Adams County. Further, no present member of the Adams County Court had any involvement in that action. 31. Denied. Under the circumstances and for the reasons set forth above, Cumberland County is a convenient forum in which to litigate this case. WHEREFORE, Respondent prays This Honorable Court will exercise jurisdiction in this matter. Respectfully submitted, Date: March 20, 2002 MARTSON DEARDOREF WILLIAMS & OTTO ' ~ams, Esquire Thomas J. Wil Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Steven J. Shanahan, an authorized agent for MARTSON DEARDORFF WILLIAMS & OTTO, hereby certify that a copy of the foregoing Plaintiff's Answer to Defendant's Petition for Court to Decline Jurisdiction was served this date via facsimile. Jeanne B. Costopoulos, Esquire 1400 N. Second Street Harrisburg, PA 17102 (717) 221-0904 MARTSON DEARDORFF WILLIAMS & OTTO Steven J/~han~-h-an Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 22, 2002 S:Xl~RONEM~/rkhull~omplainttojoinad~ion~l~tefendan~(IOrldauf0-Pktwpd Fcbraasy21.2002(It:38am) 4414 CV 2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIANE KIRKHUFF, Individually and as the executrix of the Estate of Miles Kirkhuff, Plaintiff, Darryl Lee Lowery and D.M. Bowman, Inc., Original Defendants V. Schneider National Carriers, Inc., Herbert W. Farenkopf, David Kistler & Grandson, Inc., David K. DeLong and Johnny Scott Weigner, Additional Defendants CIVIL DIVISION No. 2001-07126 COMPLAINT TO JOIN ADDITIONAL DEFENDANT Filed on behalf of Defendants, D.M. Bowman, Inc. and Darryl Lee Lowery Counsel of record for this party: John T. Pion, Esq. PA. I.D. #43675 Michael F. Nerone, Esq. PA. I.D. #62446 DICKIE, McCAMEY & CHILCOTE, P.C. Finn #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED 4414 CV 2001 NOTICE TO DEFEND 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 AN 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 CLAIM OR RELIEF REQUESTED BY THE DEFENDANT. 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 S:h-qERONEM~kirtdauff~ompla~t to joi~ additional d~fi:ndam (IGxkhuf0-pld wpd FelnuaW 21, 2002 ( I 1:3sam) 4414 CV 2001 COMPLAINT TO JOIN ADDITIONAL DEFENDANT AND NOW, come the Original Defendants Darryl Lee Lowery and D.M. Bowman, Inc., by and through their counsel, Dickie, McCamey & Chilcote, P.C., John T. Pion, Esquire and Michael F. Nerone, Esquire and files this Complaint to Join Additional Defendant, in support of which they aver the following: 1. The Plaintiff, Diane Kirkhuff, commenced this action asserting claims arising out of a January 8, 2001 motor vehicle accident occurring on the Pennsylvania Turnpike in Lower Allen Township, Cumberland County, Pennsylvania. Attached hereto as Exhibit "A" is a tree, correct and complete copy of Plaintiff's Complaint. 2. The Original Defendant, Darryl Lee Lowery, is an adult individual residing in Meyersdale, Pennsylvania. 3. The Original Defendant, D.M. Bowman is a Maryland corporation with its principal place of business at 10038 Governor Lane Boulevard, Williamsport, Maryland, 21795. 4. The Original Defendants have den/ed all liability to the Plaintiff and have filed an Answer and New Matter, a tree, correct and complete copy of which is attached hereto as Exhibit "B". The Additional Defendant, Johnny Scott Weigner, is an individual residing at 1028 Franklin Street, Oakdale, Pennsylvania. ~ S:~NERONl~M~kirkhuffic, omplahnttojoinaddltionald~fendam(Kirkhuf0-plcl.w0d F~t~'y2~,:®2{n:3S~ 4414 CV 2001 6. The Additional Defendant, Schneider National Carriers, Inc., based upon information and belief, is a corporation maintaining a principal place of business in Ottawa, Illinois. 7. The Additional Defendant, Herbert W. Farenkopf, is an individual residing at 668 East 20th Street, North Hampton, Pennsylvania. 8. The Additional Defendant, David Kistler & Grandson, Inc., based upon information and belief, is a Pennsylvania corporation maintaining its principal place of business at 9128 Kings Highway, Kempton, Pennsylvania. 9. The Additional Defendant, David K. DeLong, is an individual residing and/or doing business at 9128 Kings Highway, Kempton, Pennsylvania. 10. On or about January 8, 2001, Additional Defendant, Johnny Scott Weigner, was operating a tractor and trailer eastbound on Interstate 76 in Cumberland County, Pennsylvania. 11. At the above-referenced time and place, Additional Defendant Weigner was employed by or under a Lease with Defendant Schneider National Carriers, Inc., and was displaying Schneider National Carder's ICC numbers and placards on his tractor. 12. At the above referenced time and location, Additional Defendant Farenkopfwas operating a special construction vehicle eastbound on Interstate 76. 13. At the above referenced time and place, Additional Defendant Farenkopf was employed by Additional Defendant David Kistler & Grandson, Inc. and displaying Additional Defendant David Kistler & Grandson, Inc.'s ICC numbers and placards on his special constmction vehicle. 3 ~ S:kNERONEM~irkhuff~omplaint to join add/tlona[ defendant (K/rkhuf0-Pld.wPd Fcbr0ary 21, 2002 (11:38am) 4414 CV 2001 14. Additional Defendant David K. DeLong owned the special construction vehicle being driven by Additional Defendant Farenkopf on the above referenced date. 15. Based upon information and belief, Additional Defendant Farenkopf pulled onto the eastbound lanes of Interstate 76 from the berm at an extremely slow rate of speed without adequate warning to the on-coming traffic of his presence. 16. As Additional Defendant Farenkopf was pulling his vehicle on to the eastbound lanes of Interstate 76, Additional Defendant Weigner impacted the rear of Additional Defendant Farenkopf's vehicle, with both vehicles ultimately coming to rest in the left eastbound lane of Interstate 76 near Mile Marker 237.6. 17. When Additional Defendant Weigner's and Additional Defendant Farenkopf's vehicles came to rest, none of the lights on either vehicle were illuminated. 18. Neither Additional Defendant Farenkopf nor Additional Defendant Weigner erected any flares, reflective devices or other warnings of their presence in the left eastbound lane of Interstate 76. It was dark outside at the time of the above referenced accident at all 19. relevant times hereto. 20. At some point after the above referenced motor vehicle accident between Additional Defendant Farenkopf and Additional Defendant Weigher, a tractor trailer owned and operated on behalf of D.M. Bowman by Darryl Lee Lowery was proceeding eastbound on Interstate 76 within the posted speed limit in a proper and appropriate manner. 21. As a result of the presence of Additional Defendant Farenkopf's and Additional Defendant Weigner's vehicles in the left eastbound lane of travel and a complete lack of warning or notice to on-coming vehicular traffic, D.M. Bowman's tractor and trailer was $:h,~ERONEivl~kffkhuf~ompl~iattojoinaddltionald~f~ndant(Kirkhuf0-pldwpd Pclxuary21,2002(ll:3$am) 4414 CV 2001 confronted with a sudden emergency and forced to move from the left eastbound lane of Interstate 76 into the fight eastbound lane of Interstate 76, thereby causing an impact with a passenger vehicle operated by Plaintiff's decedent. 22. Solely for the purposes of this joinder and without admitting any of the averments stated therein, Original Defendants incorporate herein by reference Plaintiff's Complaint as if the same were set forth herein at length. Original Defendants also incorporate herein by reference their Answer and New Matter, as if the same were set forth herein at length. COUNT ONE 23. The averments set forth in Paragraphs 1 through 22 above are incorporated herein by reference as if the same were set forth herein at length. 24. Additional Defendant Weigner negligently caused the accident alleged in Plaintiff's Complaint. Additional Defendant Weigher was negligent in some or all of the following particulars: (a) (b) (c) (d) (e) In driving his tractor and trailer at an excessive rate of speed; In failing to properly have his tractor and trailer illuminated while driving in night time conditions on the highway; In failing to maintain in a short clear distance ahead; In impacting with the rear of Additional Defendant Farenkopf's construction vehicle and thereby disabling both vehicles in the left eastbound lane of Interstate 76; In obstructing the left eastbound lane of Interstate 76; 5 S:k.N£RONEM~irlahuffu:omplainttojohladditionaldefendant(KJrkhuf0_pldwpd Februaly2].2002(ll:38am) 4414 CV 2001 (f) In failing to properly and adequately inspect his vehicle before operating it on the highway to insure that it was properly illuminated; (g) In failing to warn on-coming motorists of his disabled vehicle after his impact with Additional Defendant Farenkop f; (h) In falling to take evasive action to avoid impacting Additional Defendant Farenkopf's vehicle; (i) In operating a vehicle with insufficient or malfunctioning brakes; (j) In falling to properly inspect his vehicle to detect his malfunctioning brakes; (k) By driving his vehicle in excess of the federally regulated hours of service; (1) In falling asleep and/or falling to keep a proper look out ahead; (m) In operating his vehicle while suffering fi.om health problems or other physical conditions which impaired or inhibited his ability to safely proceed; (n) In operating his vehicle when it was overloaded; (o) In being otherwise negligent under the circumstances. 25. While it is specifically denied that Plaintiff is entitled to any recovery, should it ultimately be determined that Plaintiff is entitled to recover, then Plaintiff is entitled to recover solely fi.om Additional Defendant Weigner either individually or jointly and severally with the other Additional Defendants. 26. While it is specifically denied that the Original Defendants are liable to any party, should it ultimately be determined Plaintiff is entitled to recovery from the Original 6 I S:LNERONEMB~khufl~omplaim t o join adflitional d~fendam (Kirkhuff)-pld wPd Va~,~y Z~, :002 m:38~l 4414 CV 2001 Defendants, then the Original Defendants are entitled to complete indemnification from Additional Defendant Weigner either individually or jointly and severally, with the other Additional Defendants. Alternatively, should complete indemnification be denied, then the Original Defendants are entitled to contribution from Additional Defendant Weigher either individually and/or jointly and severally along with the other Additional Defendants. WHEREFORE, through this joinder, the Original Defendants preserve their rights of sole liability, indemnification and/or contribution fi'om the Additional Defendants. COUNT TWO 27. The averments set forth in Paragraphs 1 through 26 above are incorporated herein by reference as if the same were set forth herein at length. 28. Additional Defendant Schneider National is vicariously liable as a result of the negligence of Additional Defendant Weigher as is set forth above and incorporated herein by reference. 29. Further, Additional Defendant Schneider National was directly negligent in some or all of the following particulars: (a) (c) In negligently hiring or entering a Lease Agreement with Additional Defendant Weigner when it knew or should have known that Additional Defendant Weigner was incompetent and/or otherwise unable to properly operate his tractor and trailer; In failing to perform an adequate background check on Additional Defendant Weigher; In trusting Additional Defendant Weigner to drive on its behalf when it knew or should have known that he was incompetent and/or incapable of safely operating a tractor and trailer; 7 S:~NERONEiv~kirkhufficom~lainttojolnadditionaldcfoldant{Kirkhut~pk[wpd Febomry21,2002(ll:38am) 4414 CV 2001 (d) In failing to adequately inspect Additional Defendant Weigner's tractor and trailer; (e) In overloading Additional Defendant Weigner's tractor and trailer; (0 In failing to properly train Additional Defendant Weigner; (g) In retaining Additional Defendant Weigher to drive on its behalf when it knew or should have known that he was incapable or incompetent to safely operate a tractor and trailer; (h) In being otherwise negligent under the circumstances. 30. While it is specifically denied that Plaintiff is entitled to any recovery, should it ultimately be determined that Plaintiff is entitled to recover, then Plaintiff is entitled to recover solely from Additional Defendant Schneider National either individually or jointly and severally with the other Additional Defendants. 31. While it is specifically denied that the Original Defendants are liable to any party, should it ultimately be determined Plaintiff is entitled to recovery from the Original Defendants, then the Original Defendants are entitled to complete indemnification from Additional Defendant Schneider National either individually or jointly and severally, with the other Additional Defendants. Alternatively, should complete indemnification be denied, then the Original Defendants are entitled to contribution from Additional Defendant Schneider National either individually and/or jointly and severally along with the other Additional Defendants. WHEREFORE, through this joinder, the Original Defendants preserve their rights of sole liability, indemnification and/or contribution from the Additional Defendants. 8 ~ $:hNrEROblEM~irkhuf6eo~himtojoln~ditionalde~flanl(Kirkhu~0-plrlwpd F~W2~,:0020~:38~,) 4414 CV 2001 COUNT THREE 32. The averments set forth in Paragraphs 1 through 32 above are incorporated herein by reference as if the same were set forth herein at length. 33. Additional Defendant Farenkopfs negligence was a substantial factor in causing the accident alleged in Plaintiffs Complaint. He was negligent in some or all of the following particulars: (a) Co) (c) (d) (e) (f) (h) (i) (J) In failing to yield the right-of-way to Additional Defendant Weigner's on-coming tractor and trailer; In failing to properly have his vehicle illuminated while driving in night time conditions; In driving his vehicle at an excessively slow rate of speed on Interstate 76 without warning on on- coming motorists; In failing to confirm that there was sufficient time and space to enter on to Interstate 76 before pulling on to the highway; In obstructing the path of travel of Additional Defendant Weigner's tractor and trailer; In obstructing the left eastbound lane of Interstate 76; In failing to illuminate or warn on-coming traffic on Interstate 76 that he had obstructed the left eastbound lane; In failing to take evasive action to avoid impact with Additional Defendant Weigner's tractor and trailer; In falling to properly and adequately inspect his vehicle before operating it on the highway; In operating a malfunctioning vehicle on an Interstate highway; 4414 CV 2001 (1) (tn) (n) In operating his vehicle in excess of the federally regulated hours of service; In operating his vehicle when he was physically incapable of doing so; In operating his vehicle in excess of the maximum hours of service; In being otherwise negligent under the circumstances; 34. While it is specifically denied that Plaintiff is entitled to any recovery should it ultimately be determined that Plaintiff is entitled to recover, then Plaintiff is entitled to recover solely fi.om Additional Defendant Farenkopf either individually or jointly and severally with the other Additional Defendants. 35. While it is specifically denied that the Original Defendants are liable to any party, should it ultimately be determined Plaintiff is entitled to recovery fi.om the Original Defendants, then the Original Defendants are entitled to complete indemnification from Additional Defendant Farenkopf either individually or jointly and severally, with the other Additional Defendants. Alternatively, should complete indemnification be denied, then the Original Defendants are entitled to contribution fi'om Additional Defendant Farenkopf either individually and/or jointly and severally along with the other Additional Defendants. WHEREFORE, through this joinder, the Original Defendants preserve their rights of sole liability, indemnification and/or contribution fi.om the Additional Defendants. 3.0 S:LNERONl~Mkkirkhufficomplaint t o join additlon~l defendam (Kirkhu f0 vid wpd Felmmry 2L 2002 ( 1 t :38am) 4414 CV 2001 COUNTFOUR 36. The averments set forth in Paragraphs 1 through 36 are incorporated herein by reference as if the same were set forth herein at length. 37. Additional Defendant David Kistler & Grandson, Inc., is vicariously liable for the negligence of Additional Defendant Farenkopf as set forth above. 38. Further, Additional Defendant David Kistler & Grandson, Inc., is directly negligent in some or all of the following particulars: (a) In negligently hiring Additional Defendant Farenkopf when he was incompetent or incapable of properly operating his vehicle on the highway; (b) In negligently retaining Additional Defendant Farenkopf when he was incompetent and/or incapable of safely operating his vehicle on the highway; (c) In negligently entrusting a vehicle to Additional Defendant Farenkopf when he was incapable of operating said vehicle on the highway in a safe manner; (d) In failing to inspect Additional Defendant Farenkopf's vehicle before allowing him to operate the same on the highway; (e) In allowing Additional Defendant Farenkopf to operate a malfunctioning vehicle on the highway; (t) In allowing Additional Defendant Farenkopfto operate an overloaded vehicle on the highway; (g) In requiring its drivers to operate in excess of the maximum hours of service; (h) In being otherwise negligent under the circumstances. S:~ERO~Xm~m6r~utr~omplmttojo~tional~',~l~liClr~u~-pld~p4 ~:d~'y21,2OO2flt:3S~n) 4414 CV :2001 39. While it is specifically denied that Plaintiff is entitled to any recovery, should it ultimately be determined that Plaintiff is entitled to recover, then Plaintiff is entitled to recover solely fi.om Additional Defendant David Kistler & Son, Inc. either individually or.jointly and severally with the other Additional Defendants. 40. While it is specifically denied that the Original Defendants are liable to any party, should it ultimately be determined Plaintiff is entitled to recovery from the Original Defendants, then the Original Defendants are entitled to complete indemnification from Additional Defendant David Kistler & Grandson, Inc. either individually or jointly and severally, with the other Additional Defendants. Alternatively, should complete indemnification be denied, then the Original Defendants are entitled to contribution fi.om Additional Defendant David Kistler & Grandson, Inc. either individually and/or jointly and severally along with the other Additional Defendants. WHEREFORE, through this joinder, the Original Defendants preserve their rights of sole liability, indemnification and/or contribution from the Additional Defendants. COUNT FIVE 41. The Original Defendants incorporate herein by reference the averments set forth in Paragraphs 1 through 41 above as if the same were set forth herein at length. 42. To the extent that Additional Defendant Farenkopf was an employee of Additional Defendant DeLong and/or operated the special construction vehicle displaying Additional Defendant DeLong's ICC numbers and/or ICC placards then Additional Defendant DeLong is vicariously liable to the negligence of Additional Defendant Farenkopf as is set forth above. 12 4414 CV 2001 43. Further, Additional Defendant DeLong is directly negligently in some or all of the following particulars: (a) In failing to properly maintain his vehicle; Co) In allowing Additional Defendant Farenkopf and/or Additional Defendant David Kistler & Grandson, Inc. to operate his vehicle when the same was malfunctioning; (c) In failing to have adequate illumination on his vehicle for night time use and knowingly permitting said vehicle to be operated in night time conditions; (d) In negligently entrusting his vehicle to Additional Defendant Farenkopf when he knew or should have known that the Additional Defendant Farenkopf was incompetent and/or incapable of safely operating the same on the highway; (e) In allowing his vehicle to be overloaded and then to be operated on the highway in night time conditions; (0 In being otherwise negligent under the circumstances. 44. While it is specifically denied that Plaintiff is entitled to any recovery, should it ultimately be determined that Plaintiff is entitled to recover, then Plaintiff is entitled to recover solely fi.om Additional Defendant DeLong either individually or jointly and severally with the other Additional Defendants. 45. While it is specifically denied that the Original Defendants are liable to any party, should it ultimately be determined Plaintiff is entitled to recovery fi.om the Original Defendants, then the Original Defendants are entitled to complete indemnification fi.om Additional Defendant DeLong either individually or jointly and severally, with the other 13 S:\NERONEM~drkhuff~otaplalnttojoiaadditlonaldcfenctant(Kirkhuf~pldwlxl F~bma~21.2002(ll:38am) 4414 CV 2001 Additional Defendants. Alternatively, should complete indemnification be denied, then the Original Defendants are entitled to contribution from Additional Defendant Weigner either individually and/or jointly and severally along with the other Additional Defendants. WHEREFORE, through this joinder, the Original Defendants preserve their rights of sole liability, indemnification and/or contribution from the Additional Defendants. Respectfully submitted, DICKIE, McCAMEY & CHILCOTE, P.C. John T. Pion, Esquire Michael F. Nerone, Esquire Counsel for Original Defendants Darryl Lee Lowery and D.M. Bowman, Inc. JANE ROACH, ESQUIRE ATTORNEY ID #34270 JANE ROACH, P.C. 726 ANN STREET STROUDSBURG, PA 18360 PHONE: (570) 421-7009 Attorney for Plaintiff COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA DIANE KIRKHUFF, Individually and as the executrix of the Estate of Miles Kirkhuff Plaintiff, VS. DARRYL LEE LOWERY AND D.M. BOWMAN, INC. Defendant. 4414 CV 2001 NOTICE TO DEFEND 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 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 ~OU. EXH~IT"A" ~ ~ ~ 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. Monroe County Bar Association 913 Main Street Stroudsburg, PA 18360 (570) 424-7288 ~OACH, ESQUIRE ATTORNEY ID #34270 JANE ROACH, P.C. 726 ANN STREET STROUDSBURG, PA 18360 PHONE: (570) 421-7009 Attorney for Plaintiff COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA DIANE KIRKHUFF, Individually and ~ Personal Representative of the Estate ot MILES L. KIRKHUFF II, Plaintiff, VS. DARRYL LEE LOWERY AND BOWMAN, INC. Defendants. CV .... CML ACTION IN TRESPASS ) JURY TRIAL DEMANDED COMPLAINT Plaintiff, Diane Kirkhuff is an adult individual, the Personal Representative and sole heir of the Decedent, Miles L. Kirkhuff II and a resident of Monroe County, residing at 383 Bryant Street, Stroudsburg, Pennsylvania, 18360.' Plaintiff Diane Kirkhuff is the duly appointed Executrix of the Estate of Miles L. Kirkhuff II, Letters Testamentary having been issued to her on June 21, 2001 by the Register of Wills of Monroe County. Plaintiff Diane Kirkhuffis the surviving widow and sole heir of Miles L. Kirkhuff II and as such is entitled to bring these actions in her own right and on behalf of the Estate of Miles L. Kirkhuff II. Darryl Lee Lowery is an adult individual who resides at 310 Lincoln Avenue, Meyersdale, PA 15552. D.M. Bowman, Inc. is a Maryland corporation registered to do business in Pennsylvania, with its principal address at 10038 Governor Lane Boulevard, Williamsport, Maryland, 217~95. At all relevant times, Defendant D.M. Bowman, Inc. acted through its duly authorized agents, servants, workmen, and employees, including but not limited to Dar~l Lee Lowery, who at all relevant times acted within the scope of their author/W, agency and employment. Miles L. Kirkhuff II died on January 14, 2001 at Hershey Medical Center, in Derry Township, Dauphin County, Pennsylvania fxom the fatal injuries he sustained in a motor vehicle accident which occurred on January 8, 2001 on the Pennsylvania Turnpike in Lower Allen Township, Cumberland County, Pennsylvania. COUNT I 42 Pa.C.S.A. 8301 WRONGFUL DEATH DIANE KIRKHUFF V. DARRYL LEE LOWERY 10. 11. On January 8, 2001, at approximately 9:36 P.M. Miles L. KirkhufflI and Plaintiff Diane Kirkhuff were traveling east on the Pennsylvania Turnpike in Lower Allen Township, Cumberland County near mile marker 237.6. At all relevant times, Miles L. Kirkhuff II was operating their 2000 Nissan Maxima and Diane Kirkhuff was a front-seat passenger. At all relevant times, Miles L. Kirkhuff II was operating his vehicle with due care. At the same time and location, Defendant Darryl Lee Lowery was driving a 1999 Mack tractor-trailer owned by Defendant D.M. Bowman, Inc. traveling east. -2- 12. Defendant Darryl Lee Lowery crashed the truck into the rear of the KirkhuWs car, propelling the Kirkhuff car approximately 250 feet and fatally injuring Miles L. Kirkhuff II. 13. Miles L. Kirkhuff II died six days after the accident from massive head trauma caused by the accident impact. 14. Defendant Darryl Lee Lowery was negligent and reckless in that he: a. Failed to maintain a safe rate of speed; b. Operated his truck at an excessive rate of speed under the circumstances; c. Failed to keep his truck under proper and adequate control; d. Failed to maintain such control as would enable him to stop the track within the assured clear distance ahead required by 75 Pa. Cons. Stat. § 3361; e. Operated his truck without due regard to the fights, safety, and position of the Kirkhuffs; f. Failed to keep a careful and diligent watch on the road; g. Failed to keep a proper lookout; h. Failed to use due care under the circumstances; i. Operated his truck too fast for conditions; j. Failed to keep a safe and proper distance behind the Kirkhuff's car; k. Failed to drive his truck in compliance with the Motor Vehicle Code specifically as it relates to the aforesaid acts of negligence; 1. Engaged in such other acts or omissions as may be revealed in the course of discovery, or at the trial of this case. 15. The accident was caused by the negligence and recklessness of Darryl Lee Lowery and in no way was caused by Miles L. Kirkhuff II. 16. The negligence of the Defendant Darryl Lee Lowery was the proximate and substantial cause of the accident and was the cause of the death of Miles L. -3- Kirkhuff II. 17. Miles L. Kirkhuff II, having died as a result of the accident, is presumed at law to have been acting with due care. 18. No recovery for the same damages claimed in this Wrongful Death Action have been obtained by the Miles L. KirkhufflI during his lifetime. 19. No prior actions for the same injuries have been raised by anyone and no duplicate recovery risks exist. WHEREFORE, Plaintiff Diane Kirkhuff demands judgment against Darryl Lee Lowery in an amount in excess of $25,000.00. COUNT II 42 PA.C.S.A. 8301 WRONGFUL DEATH DIANE KIRKHUFF V. D.M. BOWMAN, INC. 20. Paragraphs 1 through 19 are incorporated herein by this reference. 21. Defendant D.M. Bowman, Inc. was at all relevant times the owner of the 1999 Mack truck driven by Defendant Darryl Lee Lowery and the employer of Defendant Darryl Lee Lowery. 22. Defendant Darryl Lee Lowery was at ali relevant times the agent, servant and employee of Defendant D.M. Bowman, Inc. and was acting within the course and scope of his authority and emPloyment in operating the Mack track which was at all relevant times under the care, custody, maintenance, and control of Defendant D. M. Bowman. 23. Defendant D.M. Bowman, Inc. is liable for the negligence of Defendant Darryl Lee Lowery as a result of the agency relationship described above. WHEREFORE, Plaintiff Diane Kirkhuff demands judgment against Defendant D.M. Bowman, Inc. in an amount in excess of $25,000.00. -4- COUNT III WRONGFUL DEATH DAMAGES DIANE KIRKHUFF V. DARRYL LEE LOWERY & D.M. BOWMAN, INC. 24. 25. 26. 27. 28. Miles L. Kirkhuff II was bom on April 11, 1939 and was sixty-one years of age at the time of his death. Miles L. KirkhuffII was collecting a United States Air Force military pension and earning a full-time salary from Lincoln Technical Institute at the time of his death. His gross annual income at the time of his death was approximately $63,000.00. Miles L. Kirkhuff II would have been entifled to a pension upon his retirement from Lincoln Technical Institute. Miles L. Kirkhuff II intended to engage in remunerative work in electronic and computer consulting following his retirement from the Lincoln Technical Institute. Plaintiff Diane Kirkhuff is entitled to recover from Defendants Darryl Lee Lowery and D.M. Bowman, Inc. just compensation for: a. the loss of the contributions Miles L. Kirkhuff II would have made for her such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation and b. the pecuniary value of the services, society, solace, consortium, counsel and comfort she would have received from Miles L. Kirkhuff II during his lifetime. c. the reasonable hospital, medical, funeral expenses and expenses of administration necessitated by reason of the death of Miles L. Kirk_huff II. d. such other damages as may be found permissible by the court in these -5- wrongful death actions raised in this Complaint. WHEREFORE, Plaintiff Diane Kirkhuff demands judgment against Defendants Darryl Lee Lowery and D.M. Bowman, Inc. in an amount in excess of $25,000.00. COUNT IV 20 Pa.C.S.A. §3373 and 42 PA.C.S.A.. §8302 SURVIVAL ACTION DIANE KIRKHUFF, EXECUTRIX OF THE ESTATE OF MILES L. KIRKHUFF II V. DARRYL LEE LOWERY 29. Paragraphs 1 through 28 are incorporated herein by this reference. 30. Plaintiff Diane Kirkhuffbrings this action to recover damages .on behalf of the Estate of Miles L. Kirkhuff II, under and by virtue of 42 PA.C.S.A.. §8302. 31. As a direct and proximate result of the negligent acts described above, Defendant Darryl Lee Lowery is liable to the Estate of Miles L. Kirkhuff II. WHEREFORE, PlaintiffDiane Kirkhuff, Executrix of the Estate of Miles L. Kirkhuff II demands judgment against Darryl Lee Lowery in an amount in excess of $25,000.00. COUNT V 20 PA.C.S.A. §3373 and 42 PA.C.S.A.. §8302 SURVIVAL ACTION DIANE KIRKHUFF, EXECUTRIX OF THE ESTATE OF MILES L. KIRKHUFF II V. D.M. BOWMAN, INC. 32. Paragraphs 1 through 31 are incorporated herein by this reference. 33. Plaintiff Diane Kirkhuff brings this action to recover damages on behalf of the Estate of Miles L. Kirkhuff II, under and by virtue of 42 PA.C.S.A.. §8302. 34. As a direct and proximate result of the negligent acts of its agent, Darryl Lee Lowery, described above, Defendant D.M. Bowman, Inc. is liable to the Estate of -6- Miles L. Kirkhuff II. WHEREFORE, Plaintiff Diane Kirkhuff, Executrix of the Estate of Miles L. Kirkhuff II demands judgment against Defendant D.M. Bowman, Inc. in an mount in excess of $25,000.00. COUNT VI SURVIVAL ACTION DAMAGES DIANE KIRKHUFF, EXECUTRIX OF THE ESTATE OF MILES L. KIRKHUFF II V. DARRYL LEE LOWERY & D.M. BOWMAN, INC. 35. 36. 37. Paragraphs 1 through 34 are incorporated herein by this reference. The Estate of Miles L. Kirkhuff II has been deprived of the economic value of his life expectancy, and Plaintiff claims damage for the pecuniary loss caused by the death of Miles L. Kirkhuff II as follows: a. Reimbursement of medical bills and expenses associated with the medical treatment received by Miles L. Kirkhuff II following the accident; b. Miles L. Kirkhuff II's total lifetime probable gross earnings and earning power, less his probable lifetime costs of maintenance; c. Miles L. Kirkhuff II's loss of retirement and Social Security income; d. Miles L. Kirkhuff II's loss of the enjoyment of life; e. Miles L. Kirkhuff II's pain, suffering, fear and trauma at the accident scene and during the rescue efforts; f. Any other financial losses suffered by Miles L. Kirkhuff II as a result of his death. Plaintiff Diane Kirkhuff, as Executrix of the estate of Miles L. Kirkhuff II acknowledges that the damages in the Survival and Wrongful Death actions are not cumulative; instead the Survival action damages must be diminished by any income losses awarded in the Wrongful Death action. -7- WHEREFORE, Plaintiff Diane Kirkhuff, Executrix of the Estate of Miles L. Kirkhuff II, judgment against Defendants Darryl Lee Lowery and D.M. Bowman, Inc. in an amount 000.00. COUNT VII NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS COUNT DIANE KIRKHUFF V. DARRYL LEE LOWERY 38. Paragraphs 1 through 37 above are incorporated herein by this reference. 39. Plaintiff Diane Kirkhuff was at the scene of the accident, seated in the passenger seat of the Kirkhuff's ear next to Miles L. Kirkhuff II. · 40. Plaintiff Diane Kirkhuff has sustained shock from the direct emotional impact from her contemporaneous observance of the accident and the ensuing rescue efforts. 41. Following the accident, Plaintiff has continued to suffer emotional distress and stress disorder as a direct result of her contemporaneous observance of the accident and the ensuing rescue efforts. 42. Plaintiff Diane Kirkhuff was closely related to Miles L. Kirkhuff II, being his wife. 43. The negligent conduct of Defendant Darryl Lee Lowery described above was the direct, proximate and substantial cause of Plaintiff Diane Kirkhuff's emotional distress. 44. Plaintiff Diane Kirkhuff's emotional distress has caused her bodily harm in that she has suffered depression, nightmares, post-traumatic stress disorder, severe anxiety, insomnia, headaches, fear of driving, gastrointestinal pain and -8- dysfunction and aggravation of pre-existing ulcerative colitis. WHEREFORE, Plaintiff Diane Kirkhuff demands judgment in her favor and against Darryl Lee LOwery in an amount in excess of $25,000.00. COUNT VIII NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS COUNT DIANE KIRKHUFF V. D.M. BOWMAN, INC. 45. Paragraphs 1 through 44 above are incorporated herein by this reference. 46. Plaintiff Diane Kirk_huff was at the scene of the accident, seated in the passenger seat of the Kirkhuff's car next to Miles L. Kirkhuff II. 47. Plaintiff Diane Kirkhuff has sustained shock and emotional distress from the direct emotional impact of her contemporaneous observance of the accident and the ensuing reScue efforts. 48. Following the accident, Plaintiff has continued to suffer emotional distress and stress disorder as a direct result of her contemporaneous observance of the accident and the ensuing rescue efforts. 49. Plaintiff Diane Kirkhuff was closely related to Miles L. Kirkhuff II, being his wife. 50. The negligent conduct of Defendant DanTl Lee Lowery described above was the direct, proximate and substantial cause of Plaintiff Diane Kirkhuff s emotional distress. 51. Defendant Darryl Lee Lowery was at all relevant times the agent and servant of D.M. Bowman, Inc. and was acting in the scope and course of his employment. -9- 52. 53. Defendant D.M. Bowman is liable to Plaintiff Diane Kirkhuff under principles of agency. Plaintiff Diane Kirkhuffs emotional distress has caused her bodily harm in that she has suffered depression, nightmares, post-traumatic stress disorder, severe anxiety, insomnia, headaches, fear of driving, gastrointestinal pain and dysfunction and aggravation of pre-existing ulcerative colitis. WHEREFORE, Plaintiff Diane Kirkhuff demands judgment in her favor and against D. M. Bowman, Inc. in an amount in excess of $25,000.00. ~1~ ~)l~G2} i7~0198 3 6 0 -10- VERIFICATION The facts set forth in this Complaint are certified by me to be true and correct upon my personal knowledge, information and belief. I acknowledge that this Verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. Dated: S:~Nl~ONJ~l'q~t~a~m~w*ramlN~w'Ma~'~tkim~qfld.w~ J~u~yl2,2OO2(ll:4iarn) 4414 CV2001 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIANE KIRKHUFF, Individually and as the executrix of the Estate of Miles Kirkhuff, Plaintiff, Darryl Lee Lowery and D.M. Bowman, Inc., Defendants. CIVIL DIVISION No. 2001-07126 ANSWER AND NEW MATTER Filed on behalf of Defendants, D.M. Bowman, Inc. and Darryl Lee Lowery Counsel of record for this party: John T. Pion, Esq. PA. I.D. ~43675 Michael F. Nerone, Esq. PA. I.D. #62446 DICKIE, McCAMEY & CH/LCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED Exhibit "B" ANSWER AND NEW MATTER AND NOW, come the Defendants Darryl Lee Lowery and D.M. Bowman, Inc., by and through their counsel, Dickie, McCamey & Chilcote, P.C., John T. Pion, Esquire and Michael F. Nerone, Esquire and file this Answer and New Matter in response to Plaintiff's Complaint, in support of which they aver the following: 1-3. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of the averments set forth in Paragraphs 1 through 3 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time oftriai. 4. Admitted. 5. Admitted. 6. It is admitted that Defendant Darryl Lee Loweu was an employee of D.M. Bowman, Inc., on January 8, 2001. With regard to the remaining averments set forth in Paragraph 6 of Plaintiff's Complaint, after reasonable investigation, because no other specific individuals are identified, these Defendants are unable to ascertain the truth or falsity of the same. Thus, said allegations are denied and strict proof thereof is demanded at the time of trial. 7. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of the averments set forth in Paragraph 7 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of triai. COUNT I 8-9. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the troth or falsity of the averments set forth in Paragraphs 8 and 9 of Plaintiff,s Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. I0. The averments set forth in Paragraph 10 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 11. It is admitted that Defendant Lowery was driving a tractor trailer owned by D.M. Bowman eastbound on the Pennsylvania Turnpike during the evening hours of January 8, 2001. All contrary, additional or different allegations are denied. 12. The averments set forth in Paragraph 12 of Plaintiff's Complaint are argumentative and state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are denied as stated. To the contrary, while it is admitted that the tractor operated byDefendant Lowery impacted with the Plaintiff's vehicle and that the Plaintiff's vehicle moved forward following impact, it is specifically denied that Defendant Lowery "crashed the truck." To the contrary, said impact was not caused or contributed to by Defendant Lowery. With regard to the allegations as to the distance the Plaintiff's vehicle moved post-impact and the cause of Plaintiff's decedent's death, after reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of same. Therefore, said allegations are denied and strict proof thereof is demanded at the time of trial. 13. The averments set forth in Paragraph 13 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed .required, after reasonable investigation, these Defendants lack sufficient information or knowledge to form a belief as to the truth or falsity of the same. Thus, said allegations are denied and strict proof thereof is demanded at the time of trial. 14. The averments set forth in Paragraph 14 and subparagraphs (a) through (1) of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 15. The averments set forth in Paragraph 15 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed requked, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 16. The averments set forth in Paragraph 16 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 17. The averments set forth in Paragraph 17 state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 18. After reasonable investigation, these Defendants lack sufficient information or knowledge to form a belief as to the truth or falsity of the averments set forth in 4 Paragraph 18 of Plaintiff's Complaint. Therefore the same are denied and strict proof thereof is demanded at the time of trial. 19. After reasonable investigalaon, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsky of the averments set forth in Paragraph 19 of PlaintilTs Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. COUNT TWO 20. In response to Paragraph 20 of PlaintiWs Complaint, these Defendants incorporate herein by reference the averments set forth in Paragraphs 1 through 19 above as if the same were set forth herein at length. 21. It is admitted that on January 8, 2001 Defendant Bowman owned the tractor and trailer operated by Defendant Lowery and that Defendant Lowery was an employee of Defendant Bowman on said date. Wkh regard to the remaining averments as no particular time frames are referenced, these Defendants are without sufficient information or knowledge to ascertain the troth or falsity of same. Therefore, said allegations are denied. 22. It is admitted that Defendant Lowery was the agent, servant and employee of Defendant Bowman on January 8, 2001 and was acting within the course and scope of his employment in operating the subject tractor, which tractor and trailer was owned, possessed and controlled by Defendant Bowman on said date. With regard to the remaining averments, set forth in Paragraph 22 regarding other potential dates, after reasonable investigation, as no specific time frames are referenced, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of same. Therefore, said allegations are deemed denied. 4414 CV 2001 23. The averments set forth in Paragraph 23 of PlaintifPs Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. COUNT THREE 24-27. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of the averments set forth in Paragraphs 24 through 27 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 28. The averments set forth in Paragraph 28 and subparagraphs (a) through (d) of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. COUNT FOUR 29. In response to the averments set forth in Paragraph 29 of Plaintiff's Complaint, these Defendant incorporate herein by reference the averments set forth in Paragraphs 1 through 28 above as if the same were set forth herein at length. 30-31. The averments set forth in Paragraphs 30 and 31 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. COUNT FIVE 32. In response to Paragraph 32 of Plaintiff's Complaint, these Defendants incorporate herein by reference the averments set forth in Paragraphs 1 through 31 above, as if the same were set forth herein at length. 33-34. The averments set forth in Paragraphs 33 and 34 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. COUNT SlX 35. In response to Paragraph 35 of Plaintiff's Complaint, these Defendants incorporate herein by reference the averments set forth in Paragraphs 1 through 34 above, as if the same were set forth herein at length. 36. The averments set forth in Paragraph 36 and subparagraphs (a) through (f) of Plaintiff's Complaint state conclusions of law to which no response ~s required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure 37. The averments set forth in Paragraph 37 of PlaintilTs Complaint state conclusions of law to which no response ~s required. To the extent a response may be deemed required, any allegation or inference that these Defendants are liable to the Plaintiff or that Plaintiff is entitled to any recovery from these Defendants is generally denied pursuant to the Pennsylvania Rules of Civil Procedure. COUNT SEVEN 38. In response to Paragraph 38 of Plaintiff's Complaint, these Defendants 7 incorporate herein by reference the averments set forth in Paragraphs 1 through 37 above, as if the same were set forth herein at length. 39. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the troth or falsity of the averments set forth in Paragraph 39 of Plainti~s Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 40-41. The averments set forth in Paragraphs 40 and 41 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, after reasonable investigation, these Defendants are without sufficient . information or knowledge to form a belief as to the troth or falsity of the allegations set forth in said paragraphs. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 42. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the troth or falsity of the averments set forth in Paragraph 42 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 43. The averments set forth in Paragraphs 43 of Plaintiff's Complaint are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 44. The averments set forth in Paragraph 44 of Plaintif? s Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, after reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of same. Thus, said allegations are denied and strict proof thereof is demanded at the time of trial. 4414 CV 2001 COUNT EIGHT 45. In response to the allegations set forth in Paragraph 45 of Plaintiff's Complaint, these Defendants incorporate herein by reference the averments set forth in Paragraphs 1 through 44 above, as if the same were set forth herein at length. 46. After reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of the averments set forth in Paragraph 46 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 47-48. The averments set forth in Paragraphs 47 and 48 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, after reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of the averments set forth in said paragraphs. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 49. After reasonable investigation, these Defendants are without sufficient informatiOn or knowledge to form a belief as to the truth or falsity of the averments set forth in Paragraph 49 of Plaintiff's Complaint. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. 50. The averments set forth in Paragraph 50 of PlaintiWs Complaint are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 51. It is admitted that Defendant Lowery was an employee of Defendant Bowman, acting within the course and scope of its employment on January 8, 2001. With regard 4414 CV 2001 tO the remaining averments set forth in Paragraph 51 of Plaintiff s Complaint, as no specific time frame is provided, after reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of same. Therefore, said allegations are denied and strict proof thereof is demanded at the time of trial. 52. The averments set forth in Paragraph 52 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, said allegations are generally denied pursuant to the Pennsylvania Rules of Civil Procedure. 53. The averments set forth in Paragraph 53 of Plaintiff's Complaint state conclusions of law to which no response is required. To the extent a response may be deemed required, after reasonable investigation, these Defendants are without sufficient information or knowledge to form a belief as to the troth or falsity of said allegations. Therefore, the same are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, these Defendants deny any and all liability to the Plalnfiffunder any theory of law whatsoever and respectfully request that judgment be entered in their favor, together with costs. NEW MATTER Plaintiff's Complaint fails to state a claim upon which relief can be 54. granted. 55. Defendants raise the contributory and/or comparative negligence of the Plaintiff and Plaintiff's decedent as a complete and/or partial bar to Plaintiff's claims. 4414 CV 2001 56. To the extent justified by the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise Plaintiffs and Plaintiff's decedent's assumption of a known risk as a complete and/or partial bar to Plaintiffs claims. 57. To the extent justified by the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise the applicable statute of limitations as a complete and/or partial bar to Plaintiffs claims. 58. These Defendants raise the superceding/intervening acts and omissions of third parties over whom they had neither the duty nor the right of control as a complete and/or partial bar to Plaintiff'S claims~ 59. Defendants raise the terms and provisions of the Pennsylvania motor vehicle financial responsibility law as a complete and/or partial bar to Plaintiffs claims. 60. To the extent justified by the facts developed during discovery or the evidence introduced at the time of trial, these Defendants raise Plaintiff's and/or Plaintiff' s decedent's failure to mitigate damages as a complete and/or partial bar to Plaintiff s claims. 61. These Defendants raise the terms and provisions of 75 Pa. C.S.A. §3364 as a complete and/or partial bar to Plaintiffs claims. WHEREFORE, these Defendants deny any and all liability to the Plaintiff and respectfully request that judgment be entered in their favor together with costs. 3.3. 4414 CV 2001 Respectfully submitted, DICKIE, McCAIV[EY & CHILCOTE, P.C. BY: John T. Pion, Esquire Michael F. Nerone, Esquire Counsel for Defendants NOTICE TO PLEAD TO: Within Parties You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from the date of service hereof or a judgment may be entered against you. Michael F. Nerone, Esquire 3.2 4414 CV 2001 VERI~ICATION have read the foregoing Answer and New Matter. The statements therein are correct to the best of my personal knowledge or information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities, which provides that ifI make knowingly false statements, I may be subject to criminal penalties. 4414 CV 2001 CERTII~ICATE OF SERVICE I, Michael F. Nerone, Esquire, hereby certify that tree and correct copies of the foregoing Answer and New Matter have been served this //~;r~ day of ~r%r~y, 2002, by U.S. first-class mail, postage prepaid, to counsel of record listed below: Jane Roach, Esquire 726 Ann Street Stroudsburg, PA 18360 DICKIE, McCAMEY & CHILCOTE, P.C. ,y. Michael F. Nerone, Esquire S:\N~RONEM~k~khuf~o~pla~ttojoi~afiditiotml~t(K~rkh~fOpld.wpd F~21,20~2(ll:3~m) 4414 CV 2001 VERIFICATION Inc., have read the foregoing Complaint to Join Additional Defendants. Thc statements therein are correct to thc best of my personal knowledge or information and belief. This statement and verification is made subject to thc penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false statements, I may be snbject to criminal penalties 15 , ~ SkNERONEM\kirkhuflSeomplainttojoinadditionaldcfcndant(Kirkhufl) pldwpfl Mmchl8,2002(ll02am) 4414 CV 2001 CERTIFICATE OF SERVICE I, Michael F. Nerone, Esquire, hereby certify that tree and correct copies of the foregoing Complaint to Join Additional Defendants have been served this 18th day of March, 2002, by U.S. first-class mail, postage prepaid, to counsel of record listed below: Jane Roach, Esquire 726 Ann Street Stroudsburg, PA 18360 Tyler J. Smith, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN USX Tower, Suite 2900 600 Grant Street Pittsburgh, PA 15219 Warren L. Siegfried, Esquire WAYMAN, IRVIN & McAULEY, LLC Suite 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 DICKIE, McCAMEY & CHILCOTE, P.C. By ' Michael F. Nerone, Esquire 3.7 CHARLES D. HILL, Plaintiff LISA DIAZ, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-7121 CIVIL TERM ORDER OF COURT AND NOW, this 25th day of March, 2002, the parties having requested the opportunity to file a memorandum of law in support of their respective positions, Plaintiff is given until Monday, April 1, 2002, to file his memorandum, and Defendant shall file a response by the close of business on Monday, April 8, 2002. ,/~omas Williams, Esquire Attorney for Plaintiff e~anne Costopoulos, Esquire Attorney for Defendant srs By the Court, Edwa E. Guido, J. CHARLES D. HILL V. LISA DIAZ : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2001-7121 CIVIL TERM : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this l0TM day of APRIL, 2002, after having reviewed the briefs submitted by the parties, Defendant's Petition for Court to Decline Jurisdiction is DENIED. Edward E. Guido, J. F~or ~;s Williams, Esquire Plaintiff ~Costopoulos, Esquire For the Defendant :sld VINVAqASNN:Ja 6g :g t4~ 11 ~Ja~/ZO CHARLES D. HILL, Plaintiff V. LISA DIAZ, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2001-7121 CIVIL TERM : : IN CUSTODY ORDER OF COURT AND NOW, this ~_~day of ]~/'~ / ,2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Court Room ~o. 5 of the Cumberland · County Cofljrt House, on the ~'/l~ day of Id~'t~ ~e ,2-b02, at ~ o'clock, /~ . M., at which time testimony will be taffen on the issue of whether Father should have contact with the child. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on contact, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least ten days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, Mother shall have sole legal and sole physical custody of the child. cc~omas J. Williams, Esquire, counsel for Father ~l~anne B. Costopoulos, Esquire, counsel for Mother CHARLES D. HILL, Plaintiff V. LISA DIAZ, Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 2001-7121 CIVIL TERM : IN CUSTODY PRIOR JUDGE: Edward E. Guido, J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned CustQdy Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Lee Thomas Wells December 13, 1990 Mother 2. A Conciliation Conference was held May 15, 2002 with the following individuals in attendance: The Father, Charles D. Hill, with his counsel, Thomas J. Williams, Esquire, and the Mother, Lisa Diaz, with her counsel, Jeanne B. Costopoulos, Esquire. 3. Prior Orders of Court were entered by this Honorable Court dated February 14, 2002 and April 10, 2002. The first Order provided for the child to see a counselor to determine whether it would be detrimental for the child to have contact with Father. The second Order denied Mother's Preliminary Objections with regard to jurisdiction. 4. Father's position on custody is as follows: He seeks phased-in contact with the child. Father claims the last time he had contact with the child was by telephone in 1997. But when he called again, the telephone number had been changed. Father asserts that Mother has thwarted his attempts at contact. Father admits to not having sent any cards, letters, gifts, or support for at least seven years. Father seeks an opinion from Georgi Anderson on how reunification should proceed that would be the least detrimental to the child. Father has sent letters to the child recently. 5. Mother's position on custody is as follows: She believes that it would be detrimental to the child to establish contact with the Father. Georgi Anderson has evaluated the child and opines that it would be detrimental to force the child to have contact with his Father. Mother is unwilling to have Georgi Anderson provide an opinion regarding reunification because she believes that any agreement on her part would be perceived by the child as disloyalty to the child. Mother indicates that the child has reacted negatively to the receipt of letters from Father. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing. It is expected that the Heating will require one half day. Date flacqf~line M. Vemey, Esquire Custody Conciliator CHARLES D. I411 LISA DIAZ, Plaintiff : THE COURT OF COMMON PI.F~AS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 01-7121 Civil Term : CIVIL ACTION - AT LAW : CUSTODY MOTION FOR CONTINUANCE AND NOW comes the Defendant, Lisa Diaz, by and through her attorney, Jeann~ B. Costopoulos, Esquire, and files the following Motion for Continuance, respectfiflly representing as follows: 1. A custody conference in this matter was held on May 15, 2002 before Jacqueline M. Vemey, Esquire, Custody Conciliator. 2. The parties were unable to reach an agreement regarding custody at that time and a custody hearing was scheduled for July 24, 2002 at 1:30 p.m. 3. Undersigned counsel is scheduled to attend a continuing legal education seminar on that date and respectfully requests a continuance of this hearing. 4. Thomas J. Williams, counsel for Plaintiff, has no objeetionto a continuance of this matter if it can be rescheduled within a week or two of the original hearing date; otherwise, he opposes a continuance. WHEREFORE, Defendant, through undersigned counsel, prays this Honorable Court will grant a continuance of this matter. Da~ed: RESPECTFULLY SUBMITTED: COSTOPOULOS & WI~.I.CH 1400 North Second Street Harrisburg, Pennsylvania 17102 PA Supreme Court ID No. 68735 Telephone: (717) 221-0900 Fax: (717) 221-0904 ATTORNEY FOR DEFENDANT CHARLES D. I-re.L, LISA DIAZ, Plaintiff THE COURT OF COMMON P!.I~.AS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-7121 Civil Term · CIVIL ACTION - AT LAW · CUSTODY 2. 3. her diem. 4. ATTORNEY VERIFICATION Undersigned counsel, Jeann~ B. Costopoulos, Esquire, hereby verifies and states that: She is the attorney of record for Lisa Diaz. She is authorized to make this verification on her behalf. The facts set forth in the foregoing motion are known to her and not necessarily to The facts set forth in the foregoing motion are tree and correct to the best of her knowledge, information and belief. 5. She is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: BY: ~__ B. Costopoulos, Esquire 1400 North Second Street Harrisburg, PA 17102 Telephone (717) 221-0900 PA Supreme Court I.D. No. 68735 ATTORNEY FOR DEFENDANT CHARLES D. Hll L, LISA DIAZ, · THE COURT OF COMMON PI,F. AS OF · CUMBERLAND COUNTY, PENNSYLVANIA · No. 01-7121 Civil Term · CIVIL ACTION - AT LAW ' CUSTODY CERTIFICA~ OF SERVICE I, Jeann6 B. Costopoulos, Esquire, hereby certify that I am this day serving a copy of the foregoing documeait upon the person, and in the mannea', indicated below, which service satisfies the requirements of the PA Rules of Civil Procedure, by depositing a copy of the same with the United States Post Office at Harrisburg, Pennsylvania, through first class mail, prepaid, and addressed as follows: Thomas J. W'~am MARTSON DEARDORFF Wll J.IAMS & OTTO Ten East High Street Carlisle, PA 17013 Dated: J 6~~--~B. Costopoulos, 1400 North Second Street Harrisburg, Pennsylvania 17102 PA Supreme Court ID No. 68735 Telephone: (717) 221-0900 ATTORNEY FOR DEFENDANT 1.,5. ?1724318¢7 ~DWO PAGK 03/03 CHARLES D. HILL : IN THI~ COURT OF COM1VION PLEAS OF Plaintiff : CUMBERLAND COUNTY, PI~NNSYLV,a_NIA ; v. : NO. 01-7121 . LISA DIAZ, : Defendant : IN CUSTODY JOINT MOTION FOR GENERAL CONTINUANCE AND STIPULATION OF COUNSEl, AND NOW, comes both parties by and through their respective attorneys, as follows: 1. Both parties are now desiroas of a reconciliation between Cbarl¢.~ D. Hill and his son, Jordan Le~ Hi~, a.k.a. Lee Thomas Wells, bom 12/13/90, and have jointly engaged the services of Oeorgi Anderson, BCD, LCSW, as a facilitator to this reconciliation, 2. Both parties and thett son met today with Oeotgi Anderson, which was the first contact between father and son in about seven years. 3. Both parties desire to continue the process of reconciliation, utilizing the ~ewvices of Oeor$i Anderson; consequently, a decision on what ultimate custody arrangements arc in the best iht*rests of the child, cannot be property mad, at this time. 4. The parties jointly request the Court to continue generally the hear:ng presently -~cheduled for Wednesday, truly 24, 2002, to allow the nascent proces~ ofreconcihation between father and son to conthme, such hearing could be rescheduled al the request of either puny at a furore date, if necessary. WHEREFORE, the parties jointly request the Court to enter an Order in the form attached. Respectfully submitted, M. ARTSO~ DEARDORFF WILLIAMS & OTTO Thomas J. Willkm~Esquire Ten East Higli Street Carlisle, PA 17013-3093 (717) 2,~3-3341 Attorney for Charles D. Hi!l, Father Date: July 19, 2002 Harrisburg, PA 17102 (717) 221-09~ Anom~ for Lisa Dia~-Mothe~ C_CERTIFICATE OF SERVICE_ I, Tricia D. Eckenroad, an authorized agent for Martson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Joint Motion for General Continuance and Stipulation of Counsel was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jeanne B. Costopoulos, Esquire COSTOPOULOS & WELCH 1400 North Second Street Harrisburg, PA 17102 MARTSON DEARDORFF WILLIAMS & OTTO Carlisle, PA 17013 (717) 243-3341 Dated: July 23, 2002 F:heILES~DATAFILE\Gend°c. curk 10453 -rnot 1/fib Created: 07/19/02 I2:35:17 PM RevisexJ: 07/23/02 1 [: 12:25 AM CHARLES D. HILL, LISA D/AZ, Plaintiff : V. : : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- 7121 IN CUSTODY ORDER AND NOW, this~_~, day of July 2002, in accordance with the foregoing Joint Motion For General Continuance and Stipulation of Counsel, the hearing scheduled for Wednesday, July 24, 2002, is hereby continued generally for the reasons set forth in the Joint Motion, subject to being rescheduled on a future date, if necessary, upon the request of either party. Edward E. Guido, Judge