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HomeMy WebLinkAbout10-4820~~ '~ Matthew S. Crosby, Esq. ~90~ LD. # 69367 c~~d ~~~ a~ ~ ~~~ HANDLER, HENNING ~ ROSENBERG, LLP 1300 Linglestown Road CLt °;, Harrisburg, PA 17110 i ~°~~~:.", ,``I ~,~,~°~~~,t;lsti Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 E-mail: Crosby~HHRLaw.com THOMAS GILLENWATER, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2010 -y8aa CIVIL WILLIAM H. COLE and SWIFT TRANSPORTATION . COMPANY, INC., t/dlb/a SWIFT TRANSPORTATION CORP., :CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street O Carlisle, PA 17013 ~qa. oo p p ~J (800) 990-9108 Ct 11313 (717) 249-3166 ~.'~ a Ysc.93 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mfis adelante en las siguientes paginas, debe tomar acci6n dentro de los prfiximos veinte (20) dfas despu~s de la notificacibn de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aquf en contra suya. Se le advierte de que si usted falls de tomar acci6n Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en la demands o cualquier otra reclamaciGn o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mfis aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYAA LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFRE2CAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (717) 249-3166 HANDLER, HENNING ~ ROSENBERG, LLP By: w S. Cro ,Esq. _ F:\WP Directories\STMWIVAI2 Tractor Trailer\Gillenwater\Complaint Gillenwater.wpd Matthew S. Crosby, Esquire I.D. # 69367 HANDLER, HENNING 8~ ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 E-mail: crosbvCd2hhrlaw.com THOMAS GILLENWATER, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2010 - ~$~~ CIVIL WILLIAM H. COLE and . SWIFT TRANSPORTATION COMPANY, INC., t/d/b/a SWIFT TRANSPORTATION CORP., :CIVIL ACTION -LAW Defendants COMPLAINT AND NOW, comes the Plaintiff, Thomas Gillenwater, by and through his attorneys, HANDLER, HENNING 8~ ROSENBERG, LLP, by Matthew S. Crosby, Esq., and makes the within Complaint against the Defendants, William H. Cole and Swift Transportation, Company, Inc. t/d/b/a Swift Transportation Corp., and avers as follows: 1. Plaintiff, Thomas Gillenwater, is an adult individual currently residing at 1260 Club Drive West, Unit B, Delray Beach, Palm Beach County, Florida. 2. Defendant, William H. Cole, is an adult individual currently residing at 4740 Highway 51 N Apartment #21-204, Southaven, Desoto County, Mississippi. 3. Defendant, Swift Transportation, Company, Inc. t/d/b/a Swift Transportation Corp. (hereinafter, "Swift Transportation"), is a corporation organized and existing under the laws of Arizona and having its registered address at 2200 South 75th Avenue, Phoenix, Maricopa County, Arizona. 4. At all times material hereto, Defendant, William H. Cole, was an agent, servant, and/or employee of Defendant, Swift Transportation, and was acting within the scope of said employment. 5. At all times material hereto, Plaintiff, Thomas Gillenwater, was an occupant in atractor-trailer owned by his employer, Anderson Trucking Services, Inc., and bearing Indiana Registration No. 1016332 (hereinafter, "Plaintiffs vehicle"). 6. At all times material hereto, Defendant, William H. Cole, was the operator of a tractor-trailer owned by his employer, Defendant, Swift Transportation, and bearing Oklahoma Registration No. 2JS113 (hereinafter, "Defendant's vehicle"). 7. At all times material hereto, there were no adverse weather or road conditions. 8. On or about September 12, 2008, at approximately 7:00 a.m., Plaintiff s vehicle was lawfully parked in the parking lot of the Flying J truck plaza at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 9. At about the same time and place, Defendant, William H. Cole, was attempting to back into a parking space in the Flying J parking lot. 2 10. Defendant, William H. Cole, failed to back up in a reasonably safe manner and suddenly and without warning, struck Plaintiffs vehicle on the front, driver's side. 11. As a direct and proximate result of the negligence of Defendants, William H. Cole and Swift Transportation, the Plaintiff, Thomas Gillenwater, sustained damages as set forth more specifically below. COUNT I -NEGLIGENCE Thomas Gillenwater v. William H. Cole 12. All prior paragraphs are incorporated herein as if set forth fully below. 13. The occurrence of the aforementioned collision and all the resultant injuries to Plaintiff, Thomas Gillenwater, are the direct and proximate result of the negligence of Defendant, William H. Cole, generally and more specifically, as set forth below: (a) In failing to be reasonably vigilant to observe the position of Plaintiff s vehicle in the parking lot; (b) In failing to operate Defendant's vehicle in such a manner that would allow him to apply the brakes and stop before striking Plaintiff s vehicle; (c) In failing to be reasonably vigilant in backing up his vehicle safely and without interfering with other traffic and/or vehicles, in violation 75 Pa. C.S. § 3702. (d) In failing to operate said vehicle under proper and adequate control in order that he could avoid striking Plaintiff's vehicle; (e) In proceeding into the parking spot when such movement could not be made safely; 3 (f) In failing to properly use his mirrors prior, and as he attempted, to back into said parking space; (g) In failing to yield the legal right-of-way to Plaintiff s vehicle; (h) In operating Defendant's vehicle while fatigued; (i) In operating Defendant's vehicle in excess of the hours allowed for operating such a vehicle under Federal law; (j) In failing to maintain proper and adequate observation of the traffic conditions and/or parked vehicles then and there existing; and (k) In failing to be continuously alert, in failing to perceive any warning of danger that was reasonably likely to exist, and in failing to have his vehicle under such control that injury to persons or property could be avoided. 14. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered injuries including, but not limited to, injuries to his neck, back, and head, as well as fatigue, anxiety, and sleep changes. 15. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered lost wages and will in the future continue to suffer a loss of income. 16. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered physical pain, discomfort, and mental anguish, and he will continue to endure the same for an indefinite period of time in the future, to his physical, emotional, and financial detriment and loss. 4 17. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been compelled, in order to effect a cure for the aforesaid injuries, to spend money for medicine and/or medical attention, and he will be required to spend money for the same purposes in the future, to his detriment and loss. 18. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered a loss of life's pleasures, and he will continue to suffer the same in the future, to his detriment and loss. 19. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been, and will in the future be, hindered from attending to his daily duties, to his detriment, loss, humiliation, and embarrassment. WHEREFORE, Plaintiff, Thomas Gillenwater, seeks damages from Defendant, William H. Cole, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT II - RESPONDEAT SUPERIOR /NEGLIGENCE Thomas Gillenwater v. Swift Transportation 20. All prior paragraphs are incorporated herein as if set forth fully below. 21. At all times material to this action, Defendant, William H. Cole, was an agent, servant, and/or employee of Defendant, Swift Transportation. 22. The occurrence of the aforementioned collision and the resultant injuries to Plaintiff, Thomas Gillenwater, are the direct and proximate result of the negligence and/or carelessness of Defendant, William H. Cole. 5 23. The aforementioned negligent and/orcareless conduct of Defendant, William H. Cole, occurred while acting in, and upon, the business of Defendant, Swift Transportation, and within the course and scope of his employmen# with said Defendant. 24. Defendant, Swift Transportation, is vicariously liable for the actions of its employee, servant, and/or agent, Defendant, William H. Cole. 25. Defendant, Swift Transportation, was also negligent in failing to supervise and/or train Defendant Cole in the safe operation oftractor-trailer vehicles and/or allowing Defendant Cole to operate Defendant's vehicle when it knew, or should have known, that he was in violation of the hours allowed to be driven under Federal law and/or in allowing Defendant Cole to operate said vehicle while fatigued and/or in allowing Defendant Cole to operate said vehicle when it knew, or should have known, that he was a dangerous, careless, and/or irresponsible driver. 26. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered injuries including, but not limited to, injuries to his neck, back, and head, as well as fatigue, anxiety, and sleep changes. 27. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered lost wages and will in the future continue to suffer a loss of income. 28. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered physical pain, discomfort, and mental anguish, and he will continue to endure the same for an indefinite period of time in the future, to his physical, emotional, and financial detriment and loss. 6 29. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been compelled, in order to effect a cure for the aforesaid injuries, to spend money for medicine and/or medical attention, and he will be required to spend money for the same purposes in the future, to his detriment and loss. 30. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered a loss of life's pleasures, and he will continue to suffer the same in the future, to his detriment and loss. 31. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been, and will in the future be, hindered from attending to his daily duties, to his detriment, loss, humiliation, and embarrassment. WHEREFORE, Plaintiff, Thomas Gillenwater, seeks damages from Defendant, Swift Transportation, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. Date: ~~(~ _ Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP __~~ By: M ew S. Crosby Esq. I.D. # 69367 Attorneys for Plaintiff 7 VERIFICATION THE UNDERSIGNED hereby verifies that the statements in the foregoing document are based on information that was gathered by counsel in preparation of this lawsuit. The language of the above-named document is of counsel and not of my own. I have read the said document and, to the extent that it is based on information that I gave to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the said document is that of counsel, I have relied upon my counsel in preparing this Verification. THE UNDERSIGNED also understands that the statements therein are made subj ect to the penalties of 18 Pa.R.C.P. 2252(d), relating to unsworn falsification to authorities. DATE: ~~/ 0~1~ THOMAS GILLENWATER =. _%_' - Matthew S. Crosby, Esq. I.D. # 69367 HANDLER, HENNING 8~ ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: Crosby@hhrlaw.com THOMAS GILLENWATER, Plaintiff v. WILLIAM H. COLE and SWIFT TRANSPORTATION COMPANY, INC., t/d/b/a SWIFT TRANSPORTATION CORP., Defendants IN THE COURT OF COMMONPLEAS CUMBERLAND COUNTY, PE NSYLVANIA NO. 2010-4820 CIVIL TERM CIVIL ACTION -LAW AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN I, MATTHEW S. CROSBY, hereby certify that I served the Civil Complaint; Plaintiff s Request for Production of Documents Propounded Upon the Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. and Plaintiff s First Set of Interrogatories Directed to Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. in the above-captioned matter on Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp., by U.S. Certified Mail, Restricted Delivery, as evidenced by the Return Receipt, attached the copy of the transmittal letter. a part hereof, along with EAL) Sworn to before me and subscribed this~day of 1 2010. J u ~ 3o IPtti1. 3 •. 32 CL%u ; `i!! AtE'o~n~vs foi- ~Pl~intiff Notary Public NOTARIAL SEAL~~ VERA F FREED Notary Public SUSQUEHANNA TWP, DAUPHIN CNTY My Commission Expires Aup 2S, 2D13 ^ Contplsb psrrts 1, 2, and 3. AMo oorrlplsee Itism 4 K Restricted Dewy is desired. ^ Print your name end address on the rarorse so that ws can rstum the card to you. ^ Attach this card to the bads of the ar on the front ff space permits. 1. Artlds Addroseed to: 4' ~'w ~ ~'r T~~~PoRT.r4'i11, ~~n ~h©e~; x ~~. 8~3- X ,~ ~ D ~a o ,~adr~ B. R N by d Morns) C. Date of DaMr D. to edettess dlrMrsrrt atom Poem 1? O Y6s _ N YE3, enter dspvery address below: ~ No ~. ~.,~. c tee.. MNi D R.oMOered D R.a.rt R.o.rpcforMaarerrdr. ~ krerxed Map D C.O.D. 4. Reebicbd Depwryl iE7rtra Fiq- e''~'~'r"t'°r 7009 1680 000[] 4248 0904 (--,e-eJferhom se PS Form 3$11, February 2004 Dorrreatlo riattrn Rerxlpt ,oe~6~a¢-M-,aw ; andlar, anning~ ~ os¢nbarg,«~ ATTORNEYS AT LAW Swift Transportation, Inc. ATTENTION: Legal Dept./Administration 2200 South 75'h Ave. Phoenix, AZ 85043-7410 Re: Thomas Gillenwater v. William H. Cole and Swift Transportation Company, Inc., t/d/b/a Swift Transportation Corp. Cumberland Co. Court of Common Pleas In connection with the above-referenced matter, enclosed are: 1. Civil Complaint; 2. Plaintiff's Request for Production of Documents Propounded Upon the Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. and 3. Plaintiff's First Set of Interrogatories Directed to Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. We are serving these documents on your company and initiating litigation against your company. Your legal department should respond as soon as possible, as there is a deadline for responding. Matthew S. Crsoby (.;rosbv(~hhrl.aw.com July 21, 2010 VIA CERTIFIED MAIL, RESTRICTED DELIVERY - ,.,. ~ 0 ,, L Postage $ r Certified Fee ~ ~ Return Receipt Fee (Endorsement Required) 7 Restricted Delivery Fee ~ (Endorsement Required) 0 D Total Postage & Fees Postmark Here C l L C.F' 1 Sent ~ ~ti" f ~~~ Street, Apf. No.' or PO Box No. -+~~ F City, a ~1P+4 '°---~-- _°°° -___.. _ o.e r, ~ 7~ Z ro~:3 ~4/ :,, , Very truly yours, HANDL i~.~iENNING& ROSENBERG, LLP By atthew S. Crosby Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Harrisburg, PA 17110 Phone: 717-238-2000 "Fax 717-233-3029 www. hhrlaw. com IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA THOMAS GILLENWATER 1260 Club Drive West, Unit B JURY TRIAL DEMANDED Delray Beach, FL 33445 0- 4 ga0 VS. WILLIAM H. COLE 4740 Highway 51N, Apt. #21-204 Southaven, MS 38671 and SWIFT TRANSPORTATION CO., INC. 2200 S. 75th Avenue Phoenix, AZ 85043 NOTICE OF REMOVAL TO: Matthew S. Crosby, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 0 .- o c . 6? Gt Please take notice that defendant Swift Transportation Co., Inc. has filed a Petition in the United States District Court for the Middle District of Pennsylvania for removal of an action now pending in the Court of Common Pleas of Cumberland County, Pennsylvania which cause of action is entitled Thomas Gillenwater v. Swift Transportation, Co., Inc., et al., No. 2010-4820, to said District Court and defendant has filed in the United States District Court for the Middle District of Pennsylvania a copy of all pleadings served upon it, presently in its possession, which were filed and entered in the Court of Common Pleas of Cumberland County. A copy of said Notice of Removal is attached and herewith served upon you. GE ,GAL AGHER & MURTAGH BY - 'k Robert P. Corbin ID No: 17897 200 South Broad Street The Bellevue, 5th Floor Philadelphia, PA 19102 (215) 545-7700 (215) 732-4182 (fax) Attorney for Defendant Swift Transportation Co., Inc. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA THOMAS GILLENWATER 1260 Club Drive West, Unit B Delray Beach, FL 33445 JURY TRIAL DEMANDED VS. WILLIAM H. COLE 4740 Highway 51N, Apt. 421-204 Southaven, MS 38671 and SWIFT TRANSPORTATION CO., INC. 2200 S. 75th Avenue Phoenix, AZ 85043 PETITION FOR REMOVAL AND NOW COMES the defendant Swift Transportation, Co., Inc., as petitioner for the purposes only of removing this case to the District Court for the Middle District of Pennsylvania, and respectfully avers the following: 1. Petitioner Swift Transportation Co., Inc. is a named defendant in the civil action filed by plaintiff Thomas Gillenwater by Complaint on or about July 22, 2010, in the Court of Common Pleas of Cumberland County, Pennsylvania. See a true and correct copy of the complaint, attached hereto and marked as Exhibit "A". 2. In his complaint, plaintiff Thomas Gillenwater alleges that a tractor-trailer owned by petitioner Swift Transportation, Co., Inc. and driven by defendant William H. Cole attempted to back into a parking space at the Flying J Truck Plaza at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. See Exhibit "A" at paragraph 9. 3. The complaint further alleges that defendant Cole "failed to back up in a reasonably safe manner" and "struck Plaintiff's vehicle on the front, driver's side." See Exhibit "A" at paragraph 10. 4. According to the complaint, plaintiff Thomas Gillenwater is an adult individual residing at 1260 Club Drive West, Unit B, Delray Beach, FL 33445. 5. Petitioner Swift Transportation Co., Inc. is a corporation organized and existing under the laws of the State of Arizona, with its principal place of business at 2200 South 75th Avenue, Phoenix, Arizona 85043. 6. Defendant William H. Cole is a citizen of the State of Mississippi, and resides at 4740 flighway 51N, Apt. #21-204, Southaven, MS 38671. 7. As stated above, plaintiff's complaint was filed on or about July 22, 2010. See a true and correct copy of the Cumberland County time stamp attached hereto .and marked as Exhibit "A" at page 1. 8. The complaint indicates that the within action arises out of an incident on September 12, 2008. The complaint further alleges that the plaintiff is seeking a sum in excess of fifty thousand dollars ($50,000) for the damages he allegedly suffered as a direct result of the aforesaid accident. 9. 28 U.S.C. 1446(b) provides as follows: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based... 10. Since plaintiff's Complaint was filed on or about July 22, 2010, defendant's Petition for Removal is timely. 2 11. In paragraph 14 of his complaint, plaintiff alleges that, as a result of the accident giving rise to the instant litigation, plaintiff Thomas Gillenwater sustained injuries which include, but are not limited to, his neck, back and head, as well as fatigue, anxiety, and sleep changes. See Exhibit "A" at paragraph 11. 12. In paragraph 15 of his complaint, plaintiff alleges that, as a further result of the accident giving rise to the instant litigation, plaintiff Thomas Gillenwater has suffered lost wages and will in the future continue to suffer a loss of income. See Exhibit "A" at paragraph 15. 13. In paragraph 16 of his complaint, plaintiff alleges that, as a further result of the accident giving rise to the instant litigation, plaintiff Thomas Gillenwater has suffered physical pain, discomfort, and mental anguish, and will continue to endure the same for an indefinite period of time in the future, to his physical, emotional, and financial detriment and loss. See Exhibit "A" at paragraph 16. 14. In paragraph 17 of his complaint, plaintiff alleges that, as a further result of the accident giving rise to the instant litigation, plaintiff Thomas Gillenwater has been compelled to spend money for medicine and/or medical attention in order to effect a cure for his injuries, and will be required to spend money for the same purposes in the future, to his detriment and loss. See Exhibit "A" at paragraph 17. 15. In paragraph 18 of his complaint, plaintiff alleges that, as a further result of the accident giving rise to the instant litigation, plaintiff Thomas Gillenwater has suffered a loss of life's pleasures, and will continue to suffer same in the future, to his detriment and loss. See Exhibit "A" at paragraph 18. 16. In paragraph 19 of his complaint, plaintiff alleges that, as a further result of the accident giving rise to the instant litigation, plaintiff Thomas Gillenwater has been hindered from 3 attending to his daily duties, and will continue to be so hindered in the future, to his detriment, loss, humiliation, and embarrassment. See Exhibit "A" at paragraph 19. 17. Although petitioner disputes plaintiff s alleged claims, a reasonable reading of the value of the claims asserted by the plaintiff in this litigation indicates that these claims, if proven, exceed the sum or value of seventy-five thousand dollars ($75,000.00), exclusive of interest and costs. See Angus v. Shiley, 989 F.2d 142 (3`d Cir. 1993). 18. As plaintiff is a resident of Florida, petitioner Swift Transportation, Co., Inc. is incorporated in and has its principal place of business in Arizona, and defendant William H. Cole is a citizen and resident of Mississippi, this Honorable Court would have had original jurisdiction over plaintiffs alleged claims against petitioner and defendant as reflected in the attached complaint premised upon diversity of citizenship pursuant to 28 U.S.C. Section 1332(a). 19. As jurisdiction is proper, as established in the matter as reflected in the complaint attached as part of Exhibit "A", petitioner seeks removal to the United States District Court for the Middle District of Pennsylvania pursuant to the provisions of 28 U.S.C. Section 1441. 20. To the best of petitioner's knowledge, defendant Cole has not yet been served with plaintiff s complaint, but will be represented by the undersigned and defendant Cole hereby consents to this removal. 21. Petitioner desires to and hereby does remove the action reflected in the complaint attached as Exhibit "A" from the Court of Common Pleas of Cumberland County to this United States District Court for the Middle District of Pennsylvania, within which District the action is presently pending. 4 WHEREFORE, petitioner prays that the lawsuit reflected in the complaint attached hereto as Exhibit "A" be removed to this Court pursuant to the laws of the United States in such cases made and provided. GERMAN, GALLAGHER & MURTAGH B Robert P. Corbin ID No: 17897 200 South Broad Street The Bellevue, 5th Floor Philadelphia, PA 19102 (215) 545-7700 (215) 732-4182 (fax) Attorney for Defendant Swift Transportation, Co., Inc. CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the Petition for Removal was served upon counsel listed below on August 18, 2010, by U.S. First Class Mail, postage pre-paid, and addressed as follows: Matthew S. Crosby, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 GERMAN, GALLAGHER & MURTAGH BY • t Robert P. Corbin ID No: 17897 200 South Broad Street The Bellevue, 5th Floor Philadelphia, PA 19102 (215) 545-7700 (215) 732-4182 (fax) Attorney for Defendant Swift Transportation, Co., Inc. RLELI- E OF Tl iE Matthew S. Crosby, Esq. I.D. 6 69367 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 THOMAS GILLENWATER, Plaintiff V. WILLIAM H. COLE and SWIFT TRANSPORTATION COMPANY, INC., tld/Wa SWIFT TRANSPORTATION CORP., SO JUL U f% X27 N 11 ' ',/ r?? ,ttiJ ? ttEr';P CIA Attorneys for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010_g8aD CIVIL CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You ate warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (717) 249-3166 0 40. 00 P 0 M" 0, 111-313 12 a Ysc,,n AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mAs adelante an las siguientes p6ginas, dabs tomar acci6n dentro do los pr6ximos veinte (20) dias despu6s de Is notificacl6n de esta Demands y Aviso radicando personaimente o por medio de un abogedo una comparecencia escrita y radicando an Is Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de quo si usted falls de tomar acci6n Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en Is demands o cuaiquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por Is Corte sin miks aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFiCINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (7I7) 249-3166 HANDLER, HENNING & ROSENBERG, LLP By: Lw S. Cro , Esq. F:\WP DirectoriesNSTM%MVAI2 Tractor Tmiler1GillenwateAComplaint GRienwater.wpd Matthew S. Crosby, Esquire I. D. * 69367 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 THOMAS GILLENWATER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM H. COLE and SWIFT TRANSPORTATION COMPANY, INC., t(d/b/a SWIFT TRANSPORTATION CORP., Defendants NO. 2010 - q')_6 CIVIL CIVIL ACTION -LAW COMPLAINT AND NOW, comes the Plaintiff, Thomas Gillenwater, by and through his attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Matthew S. Crosby, Esq., and makes the within Complaint against the Defendants, William H. Cole and Swift Transportation, Company, Inc. t/d/b/a Swift Transportation Corp., and avers as follows: 1. Plaintiff, Thomas Gillenwater, is an adult individual currently residing at 1260 Club Drive West, Unit B, Delray Beach, Palm Beach County, Florida. 2. Defendant, William H. Cole, is an adult individual currently residing at 4740 Highway 51N Apartment #21-204, Southaven, DeSoto County, Mississippi. 3. Defendant, Swift Transportation, Company, Inc. t/d/b/a Swift Transportation Corp. (hereinafter, "Swift Transportation), is a corporation organized and existing under the laws of Arizona and having its registered address at 2200 South 75th Avenue, Phoenix, Maricopa County, Arizona. 4. At all times material hereto, Defendant, William H. Cole, was an agent, servant, and/or employee of Defendant, Swift Transportation, and was acting within the scope of said employment. 5. At all times material hereto, Plaintiff, Thomas Gillenwater, was an occupant in a tractor-trailer owned by his employer, Anderson Trucking Services, Inc., and bearing Indiana Registration No. 1016332 (hereinafter, "Plaintiffs vehicle"). 6. At all times material hereto, Defendant, William H. Cole, was the operator of a tractor-trailer owned by his employer, Defendant, Swift Transportation, and bearing Oklahoma Registration No. 2JS113 (hereinafter, "Defendant's vehicle'). 7. At all times material hereto, there were no adverse weather or road conditions. 8. On or about September 12, 2008, at approximately 7:00 a.m., Plaintiffs vehicle was lawfully parked in the parking lot of the Flying J truck plaza at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 9. At about the same time and place, Defendant, William H. Cole, was attempting to back into a parking space in the Flying J parking lot. 2 10, Defendant, William H. Cole, failed to back up in a reasonably safe manner and suddenly and without warning, struck Plaintiffs vehicle on the front, driver's side. 11. As a direct and proximate result of the negligence of Defendants, William H. Cole and Swift Transportation, the Plaintiff, Thomas Gillenwater, sustained damages as set forth more specifically below. COUNT I - NEGIJGENCE Thomas Gillenwatsr v William Hl Cole 12. All prior paragraphs are incorporated herein as if set forth fully below. 13. The occurrence of the aforementioned collision and all the resultant injuries to Plaintiff, Thomas Gillenwater, are the direct and proximate result of the negligence of Defendant, William H. Cole, generally and more specifically, as set forth below: (a) In failing to be reasonably vigilant to observe the position of Plaintiffs vehicle in the parking lot; (b) In failing to operate Defendant's vehicle in such a manner that would allow him to apply the brakes and stop before striking Plaintiff's vehicle; (c) In failing to be reasonably vigilant in backing up his vehicle safely and without interfering with other traffic and/or vehicles, in violation 75 Pa. C.S. § 3702. (d) In failing to operate said vehicle under proper and adequate control in order that he could avoid striking Plaintiffs vehicle; (e) In proceeding into the parking spot when such movement could not be made safely; 3 (f) In failing to properly use his mirrors prior, and as he attempted, to back into said parking space; (g) In failing to yield the legal right-of-way to Plaintiff's vehicle; (h) In operating Defendant's vehicle while fatigued; (1) In operating Defendant's vehicle in excess of the hours allowed for operating such a vehicle under Federal law; Q) In failing to maintain proper and adequate observation of the traffic conditions and/or parked vehicles then and there existing; and (k) In failing to be continuously alert, in failing to perceive any warning of danger that was reasonably likely to exist, and in failing to have his vehicle under such control that injury to persons or property could be avoided. 14. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered injuries including, but not limited to, injuries to his neck, back, and head, as well as fatigue, anxiety, and sleep changes. 16. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered lost wages and will in the future continue to suffer a loss of income. 16. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered physical pain, discomfort, and mental anguish, and he will continue to endure the same for an indefinite period of time in the future, to his physical, emotional, and financial detriment and loss. 4 17. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been compelled, in order to effect a cure for the aforesaid injuries, to spend money for medicine and/or medical attention, and he will be required to spend money for the same purposes in the future, to his detriment and loss. 18. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered a loss of life's pleasures, and he will continue to suffer the same in the future, to his detriment and loss. 19. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been, and will in the future be, hindered from attending to his daily duties, to his detriment, loss, humiliation, and embarrassment. WHEREFORE, Plaintiff, Thomas Gillenwater, seeks damages from Defendant, William H. Cole, in-an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT 11- RESPONDEAT SUPERIOR J NEGLIGENCE Thomas Gillenwater v. Swift Transuortation 20. All prior paragraphs are incorporated herein as if set forth fully below. 21. At all times material to this action, Defendant, William H. Cole, was an agent, servant, and/or employee of Defendant, Swift Transportation. 22. The occurrence of the aforementioned collision and the resultant injuries to Plaintiff, Thomas Gillenwater, are the direct and proximate result of the negligence and/or carelessness of Defendant, William H. Cole. 5 23. The aforementioned negligent and/or careless conduct of Defendant, William H. Cole, occurred while acting in, and upon, the business of Defendant, Swift Transportation, and within the course and scope of his employment with said Defendant. 24. Defendant, Swift Transportation, is vicariously liable for the actions of its employee, servant, and/or agent, Defendant, William H. Cole. 25. Defendant, Swift Transportation, was also negligent in failing to supervise and/or train Defendant Cole in the safe operation of tractor-trailer vehicles and/or allowing Defendant Cole to operate Defendant's vehicle when it knew, or should have known, that he was in violation of the hours allowed to be driven under Federal law and/or in allowing Defendant Cole to operate said vehicle while fatigued and/or in allowing Defendant Cole to operate said vehicle when it knew, or should have known, that he was a dangerous, careless, and/or irresponsible driver. 26. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered injuries including, but not limited to, injuries to his neck, back, and head, as well as fatigue, anxiety, and sleep changes. 27. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered lost wages and will in the future continue to suffer a loss of income. 28. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered physical pain, discomfort, and mental anguish, and he will continue to endure the same for an indefinite period of time in the future, to his physical, emotional, and financial detriment and loss. 6 29. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been compelled, in order to effect a cure for the aforesaid injuries, to spend money for medicine and/or medical attention, and he will be required to spend money for the same purposes in the future, to his detriment and loss. 30. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has suffered a loss of life's pleasures, and he will continue to suffer the same in the future, to his detriment and loss. 31. As a direct and proximate result of the negligence of Defendant, the Plaintiff, Thomas Gillenwater, has been, and will in the future be, hindered from attending to his daily duties, to his detriment, loss, humiliation, and embarrassment. WHEREFORE, Plaintiff, Thomas Gillenwater, seeks damages from Defendant, Swift Transportation, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Date: d By: M ew S. Crosby Esq. I. D. # 69367 Attorneys for Plaintiff 7 THE UNDERSIGNED hereby verifies that the statements in the foregoing document are based on information that was gathered by counsel in preparation of this lawsuit. The language of the above-named document is of counsel and not of my own. I have read the said document and, to the extent that it is based on information that I gave to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the said document is that of counsel, I have relied upon my counsel in preparing this Verification. THE UNDERSIGNED also understands that the statements therein are made subject to the penalties of IS Pa.R.C.P. 2252(d), relating to unworn falsification to authorities. DATE: 07/044 'THOMAS GILLENWATER ti - Ti F Matthew S. Crosby, Esq. I.D. # 69367 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: crosb hhrlaw.com 210 13.;'2'4 Fi, J v1, 30 ?? 3:32 Att 61' liintiff THOMAS GILLENWATER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2010 -4820 CIVIL TERM WILLIAM H. COLE and SWIFT TRANSPORTATION COMPANY, INC., t/d/Wa SWIFT TRANSPORTATION CORP., CIVIL ACTION -LAW Defendants AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN I, MATTHEW S. CROSBY, hereby certify that I served the Civil Complaint; Plaintiff's Request for Production of Documents Propounded Upon the Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. and Plaintiffs First Set of Interrogatories Directed to Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. in the above-captioned matter on Defendant, Swift Transportation Co., Inc., t/d/b/a Swift. Transportation Corp., by U.S. Certified Mail, Restricted Delivery, as evidenced by the Return Receipt, attached the copy of the transmittal letter. a part hereof, along with (SEAL) Sworn to before me and subscribed this.29 day of CA" L4 2010. Notary Public NOTARIAL SEAL VERA F FREED Notary Public SUSOIJEHANNA TWP. DAUPHIN CNTy My Commission Expires Aug 28, 2013 l ¦ OOmp R?Md?Ddmy dMkad A. aftwohm O Aa t ¦ Prkrt yaw nwne and adds n on the wmm x ? D so that vra am nhm, the cwd to you. IL br Ahoy a Dab of D*mV ¦ Attaoh thin card do Vw back of the rntMpteo?gbr or cn the thin a apace poniAL 1. A>1bM Adman,d to: 0.M d-dkwy aftM ?t tan Mm I? O 'ft N YES, arrtvr day oOmm Mlow: O No SCO I Fr- 77tAOSPDR7" , A oy,?ji!wc. I h0ev?; x? ?. 8 3-- 4O R o .4 o n*ffnpmvvlwMwawww o VoindMi 0Q= 74I0 4. F1 AM d DMvwy! Moa fly L Aaol.~"'m` planawno?n.. 7004 1680 0000 4248 0904 i PS Fam 3811, FeWuwy 2004 Oanntlo RMum Rro IF- toapsaarr 1e?o dndler,, anning& osanbarg,LLP ATTORNEYS AT LAW Matthew S. Crsoby Croshy(alhhrlaw.com July 21, 2010 VIA CERTIFIED MAIL, RESTRICTED DELIVERY Swift Transportation, Inc. ATTENTION: Legal Dept./Administration 2200 South 75' Ave. Phoenix, AZ 85043-7410 Re: Thomas Gillenwater v. William H. Cole and Swift Transoortation Comoanv. Inc.. t6b/a Swift Transportation Corp. Cumberland Co. Court of Common Pleas In connection with the above-referenced matter, enclosed are: 1. Civil Complaint; 2. Plaintiffs Request for Production of Documents Propounded Upon the Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. and 3. Plaintiffs First Set of Interrogatories Directed to Defendant, Swift Transportation Co., Inc., t/d/b/a Swift Transportation Corp. r d r r v r We are serving these documents on your company and initiating litigation against your company. Your legal department should respond as soon as possible, as there is a deadline for responding. Very truly yours, H:hew L 7ENNING& ROSENBERG, LLP BS. Crosby Handier, Henning & Rosenberg, LLP 1300 Linglestown Road, Harrisburg, PA 17110 Phone: 717-238-2000 • Fax 717-233-3029 www.hhriaw.com