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Home My WebLink About02-3799 NMOWENS, BARCAVAGE AND MCINROy? LLC BY: Stephen J. Barcava8a Esquire Attorney I.D. No. 78867 2595 Interstate Drive, Suite 101 Harrisburg, PA 17110 (717) 909-2500 SCOTT PATILLO, vs. JEREMY STRAYER and ANTHONY STRAYER, Defendants PETITION FOR A STATUS CONFERENCE 1 • The above captioned matter was initiated by the Ming of a complaint August 7, 2002 relevant to an automobile accident on August 21, 2000. on 2. The complaint was filed by attorney Sheldon A. Goods 3• The Pleadings were closed and discover tadt. Y was conducted incuding the exchange of extensive medical records, interrogatories, and requests f l or. 1 4• On June 4, 2007 this matter this matter was arb' Production. itrated before a three member panel who returned an award for the Plaintiff in the sum of $45,000.00 ass' Defendant with costs on the Defendant, assigning liability to the 5• On July 11, 2007 previous defense counsel filed a timely appeal of that award and demanded a jury trial. 6• Previous defense counsel withdrew his appearance and Stephen J. Barcavage, Esquire enters the appearance on November 12, 2009. 7• Current defense counsel has made numerous requests for the Plaintiff to provide updated medical records; however, no supplemental records have been received to date. Or'THE PROTHONOTARY CUP'l L.?; ? COu?.jY P- 'j Ll.@t, YL V, 4,1111A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 02-3799 • CIVIL ACTION - LAW 8. Plaintiff's counsel was notified of this Petition by letter on or however, Defendants' counsel has not received any response from Plaintiff's counsel. WHEREFORE, the undersigned counsel respectfully requests this conduct a status conference in order to facilitate this case Honorable Court towards a final disposition whether it be through settlement or trial. OWENS 13ARCAVAGE & McINROY, LLC Date: January 6, 2011 B4.A. arcava ge, Esquire 78867 7 2595 Interstate Drive, Suite 101 Harrisburg, pA 17110 (717) 909-2500 Attorney for Defendants CERTIFICATE OF SERVICE Now this day 1?jof January 2011, I hereby certify that I have served forgoing Petition for a Status Conference on the following by depositing a true an correct copy of the same in the United States Mail, Postage pre-paid address to and Sheldon A. Goodstadt, Esquire Oxman, Goodstadt, Krevitz & Kurtz, Law Firm 1010 Haddonfield Berlin Road Vorhees, NJ 08043 (856) 783-3003 t J. Barcavage, Esquir S OWENS, BARCAVAGE AND MCINROY, LLC '101 10 2011 BY: Stephen J. Barcavage, Esquire Attorney I.D. No. 78867 2595 Interstate Drive, Suite 101 Harrisburg, PA 17110 (717) 909-2500 SCOTT PATILLO, Plaintiff vs. JEREMY STRAYER and ANTHONY STRAYER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA C a NO 02-3799 ''- . cn r _ r CIVIL ACTION - LAW G`= co .-a t ORDER AND NOW, this day of January 2011, pursuant to Defendants' Petition for a Status Conference, it is hereby ordered that a Status Conference will be held on this day of JJW4.u, 2011 at < UU o'clock in the chambers of the Honorable dam'd Distribution: ? Stephen J. Barcavage, Esquire 2595 Interstate Drive, Ste 101 Harrisburg, PA 17110 (717)909-2502 Sheldon A. Goodstadt, Esquire Oxman, Goodstadt, Krevitz & Kurtz, P.C. 1010 Haddonfield Berlin Road Vorhees, NJ 08043 (856) 783-3003 Cumberland County Court Administrator 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 10- J. l a? * A 1?- 1Ak1 1 n ,?,..; PLED-OFFICE OWENS, BARCAVAGE AND MCINROY, LLC OP'THE PROTHONOTARY BY: Stephen J. Barcavage, Esquire Attorney I.D. No. 78867 1011 il"i'u - ; Pi's 1: 36 2595 Interstate Drive, Suite 101 C U M D E R L. 0' D COUNTY Harrisburg, PA 17110 P E lu ' S Y LVA N11 A (717) 909-2500 ivt SCOTT PATILLO, vs. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA NO. 02-3799 JEREMY STRAYER and ANTHONY STRAYER, Defendants CIVIL ACTION - LAW PETITION FOR A STATUS CONFERENCE 1. The above captioned matter was initiated by the filing of a complaint on August 7, 2002 relevant to an automobile accident on August 21, 2000. 2. The complaint was filed by attorney Sheldon A. Goodstadt. 3. The Pleadings were closed and discovery was conducted including the exchange of extensive medical records, interrogatories, and requests for production. 4. On June 4, 2007 this matter this matter was arbitrated before a three member panel who returned an award for the Plaintiff in the sum of $45,000.00 assigning liability to the Defendant with costs on the Defendant. 5. On July 11, 2007 previous defense counsel filed a timely appeal of that award and demanded a jury trial. 6. Previous defense counsel withdrew his appearance and Stephen J. Barcavage, Esquire enters the appearance on November 12, 2009. 7. Current defense counsel has made numerous requests for the Plaintiff to provide updated medical records; however, no supplemental records have been received to date. 8. Plaintiff's counsel was notified of this Petition by letter on or about November 4, 2010; however, Defendants' counsel has not received any response from Plaintiff s counsel. WHEREFORE, the undersigned counsel respectfully requests this Honorable Court conduct a status conference in order to facilitate this case towards a final disposition whether it be through settlement or trial. OWENS BARCAVAGE & McINROY, LLC Date: January 6, 2011 By: ,tS eW Barcavage, Esquire A D. 78867 2595 Interstate Drive, Suite 101 Harrisburg, PA 17110 (717) 909-2500 Attorney for Defendants CERTIFICATE OF SERVICE Now this day ? of January 2011, I hereby certify that I have served forgoing Petition for a Status Conference on the following by depositing a true and correct copy of the same in the United States Mail, Postage pre-paid address to Sheldon A. Goodstadt, Esquire Oxman, Goodstadt, Krevitz & Kurtz, Law Firm 1010 Haddonfield Berlin Road Vorhees, NJ 08043 (856) 783-3003 t J. Barcavage, Esquire r I FO-OFF ICc P R OXMAN GOODSTADT KURITZ, P.C. BY: SIIELDON A. GOODSTADT, ESQUIRE IDENTIFICATION NO.: 19547 Laurel Oak Corporate Center 1010 Haddonfield-Berlin Road, Suite 302 Voorhees, New Jersey 08043 (856)770-0009 Attorneys for Plaintiff SCOTT PATTILLO Plaintiff VS. JEREMY STRAYER and ANTHONY STRAYER 7111 F E P 15 PM 2: 1 ) 'NTY HRU' COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL DIVISION AUGUST TERM, 2002 NO. 02-3799 Defendants ORDER AND NOW, this Day of February, 2011, it is hereby ordered that the Status Conference of February 17, 2011 has been canceled and rescheduled for March 28, 2011 at 11:15 a.m. in Courtroom #5. Distribution: Stephen J. Barcavage, Esquire Owens, Barcavage & McInroy, LLC 2595 Interstate Drive, Suite 101 Harrisburg, PA 17110 (717)909-2502 Sheldon A. Goodstadt, Esquire Oxman Goodstadt Kuritz, P.C. Laurel Oak Corporate Center 1010 Haddonfield-Berlin Road, Suite 302 Voorhees, New Jersey 08043 (856)770-0009 oopie' t5 Ir Cumberland County Court Administrator - in bin I Courthouse Square Carlisle, PA 17013 (717)240-6200 SCOTT PATILLO, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JEREMY STRAYER and ANTHONY STRAYER, DEFENDANTS 02-3799 CIVIL TERM ORDER OF COURT AND NOW, this 28t' day of March, 2011, following a status conference with counsel the court directs that discovery in this matter be concluded within three months of today's date, after which the matter may be listed for trial during the September, 2011 term of court. By the Court, .. 4 Albert H. Maslan , J. /Stephen J. Barcavage, Esquire For Plaintiff 01 Sheldon A. Goodstadt, Esquire C') For Defendants rncoo = r=rl-n zrn -arn :saa .<? Qo CpPi6a M --4o °-n 31a8 _? s QF; OKS CONNORS LAW,LLP ATTORNEYS FOR DEFENDANTS By: Patricia Burns Horn, I.D. #66603 Jeremy Strayer and Anthony Strayer Kevin L. Connors, I.D. #52819 140 S. Village Avenue, Suite 120 Exton, PA 19341 610.524.2100 SCOTT PATILLO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. 6a-37q9 c JEREMY STRAYER and s rnm =00 - ANTHONY STRAYER, =;:0 = n Defendants CIVIL ACTION-LAW rev. o o ENTRY OF APPEARANCE )>C7 TO THE PROTHONOTARY: Kindly enter our appearances as counsel on behalf of Defendants, Jeremy Strayer and Anthony Strayer, with regard to the above-captioned matter. Connors Law,LLP By: Patricia Burns Horn, Esquire Kevin L. Connors, Esquire Attorneys for Defendants, Jeremy Strayer and Anthony Strayer Date: April 18, 2013 OWENS, BARCAVAGE AND MCINROY, LLC BY: Stephen J. Bracavage Attorney I.D. No. 78867 2595 Interstate Drive, Suite 101 Harrisburg, PA 17110 (717) 909-2500 SCOTT PATILLO IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA vs. NO. 02-3799 JEREMY STRAYER and CIVIL ACTION—LAW ANTHONY STRAYER, Defendants PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of the Defendant, Jeremy Strayer and Anthony Strayer. OWENS BARCAVAGE AND MCINROY, LLC. DATE: BY: Ste arcavage, Esquire I.D. No.78867 2595 Interstate Drive Harrisburg, PA 17110 (717) 909-2500 CONNORS LAW,LLP ATTORNEYS FOR DEFENDANTS By: Patricia Burns Horn, I.D. #66603 Jeremy Strayer and Anthony Strayer Kevin L. Connors, I.D. #52819 140 S. Village Avenue, Suite 120 Exton, PA 19341 610.524.2100 SCOTT PATILLO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 2013-887 JEREMY STRAYER and ANTHONY STRAYER, Defendants CIVIL ACTION—LAW CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on this day a true and correct copy of the Withdraw of Appearance and Entry of Appearance was served by first class mail, postage prepaid, addressed as follows: Sheldon A. Goodstadt, Esquire Oxman, Goodstadt, Krevitz &Kurtz, P.C. 1307 White Horse Road Building B, Suite 200 Voorhees,NJ 08043 Stephen J. Barcavage, Esquire Owens, Barcavage and McInroy, LLC 2595 Interstate Drive Harrisburg,PA 17110 CONNORS LAW,LLP By: r6 Patricia Burns Horn, Esquire Attorney for Defendants, Jeremy Strayer and Anthony Strayer Date: April 18, 2013 CONNORS LAW, LLP By: Patricia Burns Horn, I.D. #66603 Kevin L. Connors, I.D. #52819 140 S. Village Avenue, Suite 120 Exton, PA 19341 610.524.2100 SCOTT PATILLO, Plaintiff v. JEREMY STRAYER and ANTHONY STRAYER, Defendants ATTORNEYS FOR DEFENDANTS Jeremy Strayer and Anthony Strayer IN THE COURT OF COMMON POA i, CUMBERLAND COUNTY, PAI -40Z" ; _ r,i C2 ri ( r" n) 7Zc� NO. 02-3799 ter..„.< - = ` .-1 .r Q -ri c'r -r: CIVIL ACTION — LAW 3 .r`-, -< co; MOTION OF DEFENDANTS, JEREMY STRAYER AND ANTHONY STRAYER, FOR JUDGMENT OF NON PROSECUTION AND NOW, by and through their undersigned counsel, Connors Law, LLP, Defendants, Jeremy Strayer and Anthony Strayer (hereinafter "Moving Defendants"), move this Court for a Judgment against Plaintiff for Non Prosecution of his claim. 1. On August 9, 2002, Plaintiff filed a Complaint against Moving Defendants, alleging that Defendants were negligent and liable for a two -car motor vehicle accident occurring on August 21, 2000, in which Plaintiff allegedly sustained personal injuries. 2. On June 4, 2007, the matter proceeded to an Arbitration Hearing with an Award of $45,000.00 against Moving Defendants and in favor of Plaintiff. 3. On June 27, 2007, Moving Defendants filed a timely Appeal from the Arbitration Award. 4. In January 2011, defense counsel requested a Status Conference in an attempt to move this case towards resolution. 5. A Status Conference was held on March 28, 2011 at which time the Honorable Albert H. Masland issued an Order that Discovery should be concluded three months after the Status Conference, and that the case may be listed for trial during the September 2011 term of Court. 6. Plaintiffs counsel did not list this case for trial in the September 2011 term, or any term thereafter. 7. On April 22, 2013, new counsel for Moving Defendants filed an Entry of Appearance. 8. There has been no further docket activity since defense counsel's Entry of Appearance in April 2013. 9. Other than new defense counsel's Entry of Appearance in April 2013, there has been no further docket activity on this case. 10. Moving Defendants, Jeremy Strayer and Anthony Strayer, are defending this action based upon liability and damages with significant issues regarding the property damage to both vehicles, as well as the appearance of the Plaintiff at the scene of the accident. The investigating State Trooper's testimony is instrumental in the defense of this case. 11. This action arises from an August 21, 2000 two -car motor vehicle accident that occurred in the Borough of Lemoyne, PA. 12. The accident was investigated and a report written by Pennsylvania State Trooper Scott C. Shade. 13. Trooper Shade is no longer with the Pennsylvania State Police. 14. Defense counsel has been unable to locate the former Trooper Shade to secure his testimony at the time of trial. 15. Moving Defendants have suffered actual and significant prejudice due to Plaintiff's failure to prosecute his case, as the whereabouts of witnesses crucial to the defense of this case are no longer known, including the investigating State Trooper, as well as the driver of the vehicle in which Plaintiff was a passenger, that being Terry Polichetti, Jr., formerly of Lindenwold, NJ, however no longer at the address listed on the Investigating Police Accident Report. 16. The Pennsylvania Supreme Court has enunciated a three-part test to determine a defendant's Motion for Non Pros against a plaintiff. There must be (1) inactivity and lack of due diligence on the part of a plaintiff in failing to proceed with reasonable promptness; (2) no compelling reason for plaintiff's delay; and (3) said delay must cause actual prejudice to the defendant. Shope v. Eagle, 710 A.2d 1104 (Pa. 1998). 17. In Shope v. Eagle, the Supreme Court upheld the granting of a defendant's Motion for Non Pros when one of defendant's potential witnesses died during the three years of plaintiff's inactivity in moving the case along, finding that due to the death of this witness, defendant had shown evidence of actual prejudice. 18. In the case at issue, there has been more than a three-year period of inactivity by the Plaintiff, with Plaintiff doing nothing to further this case to conclusion since the 2009 Arbitration, with the last activity being a 2011 Status Conference at the request of the Defendants in an effort to move this case to a conclusion. 19. Moving Defendants have suffered actual prejudice, as at least two witnesses are now missing, with the investigating State Trooper no longer employed as a State Trooper, and the driver of the vehicle in which Plaintiff was a passenger no longer residing at the address listed on the Police Report. WHEREFORE, Defendants, Jeremy Strayer and Anthony Strayer, move this Honorable Court for an Order of Non Pros against the Plaintiff. Respectfully submitted, CONNORS LAW, LLP BY: DATE: October 22, 2014 Patricia Burns Horn, Esquire Attorneys for Defendants, Jeremy Strayer and Anthony Strayer CONNORS LAW, LLP By: Patricia Burns Horn, I.D. #66603 Kevin L. Connors, I.D. #52819 140 S. Village Avenue, Suite 120 Exton, PA 19341 610.524.2100 ATTORNEYS FOR DEFENDANTS Jeremy Strayer and Anthony Strayer SCOTT PATILLO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA NO. 02-3799 CIVIL ACTION — LAW v. JEREMY STRAYER and ANTHONY STRAYER, Defendants MEMORANDUM OF LAW OF DEFENDANTS, JEREMY STRAYER AND ANTHONY STRAYER, IN SUPPORT OF THEIR MOTION FOR JUDGMENT OF NON PROSECUTION I. FACTS: This action arises from an August 21, 2000 motor vehicle accident involving two vehicles, one driven by Defendant, Jeremy Strayer, and another driven by non-party, Terry Polichetti, Jr. Plaintiff was a passenger in Polichetti's vehicle at the time of this accident. This accident was investigated by the Pennsylvania State Police, specifically by Trooper Scott C. Shade. Plaintiff is claiming ongoing neck and back injuries. Defendant, Jeremy Strayer, contends that the driver of the other vehicle was at least partially at fault for this accident, and further, that the accident was nothing more than a "love tap", resulting in little to no damage to either vehicle. Further, the lack of objective injuries or subjective complaints at the scene of the accident is also crucial to the defense. Plaintiff filed suit against Moving Defendants, Jeremy Strayer and Anthony Strayer, in August 2002. Thereafter, the case proceeded to an Arbitration in Cumberland County on June 4, 1 2007 and was timely appealed by the Defendants. Thereafter, Plaintiff took no action to further this case to resolution. In an effort to move this case to resolution, defense counsel requested a Status Conference, which was ultimately held on March 28, 2011. As a result, The Honorable Albert H. Masland issued an Order that Discovery should be concluded by June of 2011, and that the case "may be listed for trial during the September 2011 Term of Court." (A true and correct copy of Judge Masland's Order is attached hereto as Exhibit "A"). Other than a 2013 Entry of Appearance by new defense counsel, there has been no other activity on the docket and Plaintiff's counsel has done nothing to move this case towards trial or resolution. Key witnesses for the defense include Terry Polichetti, Jr., the driver of the vehicle in which Plaintiff was a passenger at the time of this accident who formerly resided in Lindenwold, New Jersey, at the time of this accident but who no longer a resides at that address. Further, Pennsylvania State Trooper Scott C. Shade is no longer a Pennsylvania State Trooper. II. LAW: In James Bros. Lumber v. Union Banking & Trust Co., 432 Pa. 129, 247 A.2d 587 (1968), the Court set forth a three-part analysis by which to determine whether to grant a Judgment of Non Pros against a plaintiff The analysis includes: (1) a failure of due diligence by a plaintiff in moving the case forward with reasonable promptitude; (2) the plaintiff has no compelling reason for the delay; and (3) that the delay causes actual prejudice to the defendant. In Shope v. Eagle, 710 A.2d 1104 (Pa. 1998), the Supreme Court confirmed the ruling in James Bros. Lumber v. Union Banking & Trust Co., stating "the law is settled that it is plaintiff, not defendant, who bears the risk of failing to act within a reasonable time to move a case along." In 2 Shope, one of the defendant's expert witnesses died during the period of inactivity, which the trial court found caused actual prejudice to the defendant and the Pennsylvania Supreme Court upheld that finding. In the case at issue, there has been no docket activity since March 28, 2011, other than an Entry of Appearance for defense counsel. Though Judge Masland's Order stated that the case may be placed into the September 2011 Trial listing, Plaintiff did not move for said listing, and has not requested a trial listing at all. For over three years there has been absolutely no activity by Plaintiff on this case. III. CONCLUSION: As in Shope, the three-year lack of activity met the first prong of the three-part test for a Non Pros, being a lack of due diligence on the part of the Plaintiff in failing to proceed with reasonable promptitude. Further, the Plaintiff has offered no compelling reason for said delay. Finally, this delay has caused actual prejudice to Moving Defendants, similar to that in Shope, as the delay has left Defendants without witnesses previously available. WHEREFORE, Moving Defendants, Jeremy Strayer and Anthony Strayer, respectfully request this Honorable Court grant their Motion for Judgment of Non Pros and dismiss Plaintiffs Complaint. DATE: October 22, 2014 BY: 3 Respectfully submitted, CONNORS LAW, LLP Patricia Bu r s Horn, Esquire Attorneys for Defendants, Jeremy Strayer and Anthony Strayer VERIFICATION Patricia Burns Horn, Esquire, attorney for Moving Defendants, Jeremy Strayer and Anthony Strayer, deposes and is authorized to sign this verification on behalf of said Defendants. She has reviewed the facts set forth in the foregoing Motion for Judgment of Non Prosecution, and the facts set forth are true and correct to the best of her knowledge, information and belief. This verification is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. PATRICIA BURNS HORN, ESQUIRE DATE: October 22, 2014 CONNORS LAW, LLP By: Patricia Burns Horn, I.D. #66603 Kevin L. Connors, I.D. #52819 140 S. Village Avenue, Suite 120 Exton, PA 19341 610.524.2100 ATTORNEYS FOR DEFENDANTS Jeremy Strayer and Anthony Strayer SCOTT PATILLO, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA NO. 02-3799 CIVIL ACTION — LAW v. JEREMY STRAYER and ANTHONY STRAYER, Defendants CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on this day a true and correct copy of the foregoing Motion of Defendants, Jeremy Strayer and Anthony Strayer, for Judgment of Non Prosecution with supporting Memorandum of Law and proposed Order, has been served, via regular mail, upon the following: Sheldon A. Goodstadt, Esquire Oxman, Goodstadt, Krevitz & Kuritz, P.C. Laurel Oak Corporate Center 1010 Haddonfield -Berlin Road, Suite 302 Voorhees, NJ 08043 BY: DATE: October 22, 2014 Respectfully submitted, CONNORS LAW, LLP Patricia Burns Horn, Esquire Attorneys for Defendants, Jeremy Strayer and Anthony Strayer EXHIBIT "A" SCOTT PATILLO, IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. • JEREMY STRAYER and ANTHONY STRAYER, • DEFENDANTS :02-3799 CIVIL TERM ORDER OF COURT AND NOW, 28th day of March, 2911.i -following a status conference with nrn counsel the court directs that -discovery in this matter be concluded within three months of today's date, after which the matter may be listed for trial during the September, 2011 term of court. /Stephen J. Barcavage, Esquire For Plaintiff Sheldon A. Goodstadt, Esquire For Defendants :saa By the Court, Albert H. Maslan Cps fvtoM 31,9.8111 0 CONNORS LAW October 22, 2014 David Buell, Prothonotary Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 io/a7 >need E Patricia Bums Hort]: Ph t 123 PHorn@conn tslawilp:crnn RE: Scott Patillo v. JEREMY STRAYER AND ANTHONY STRAYER Cumberland Co. CCP, Docket No. 02-3799 Our File No. GL -6480 -PATI -ALL Dear Mr. Buell: Enclosed for filing please find an original and one (1) copy of the Motion of Defendants, Jeremy Strayer and Anthony Strayer, for Judgment of Non Pros against the Plaintiff, with supporting Memorandum of Law and proposed Order, in the above matter. Kindly file the original of record and forward a time and date stamped copy to the undersigned in the enclosed, self-addressed, stamped envelope provided for your use. Thank you for your assistance. Patricia Burns Horn PBH/ln Enclosures cc: Sheldon A. Goodstadt, Esquire 140 S. VILLAGE AVENUE • SUITE 120 • EXTON, PA 19341 • 0: 610.524.2100 • F: 610.524.0600 • WWW.CONNORSLAWLLP.COM SCOTT PATILLO, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. JEREMY STRAYER AND ANTHONY STRAYER, DEFENDANTS : 02-3799 CIVIL TERM ORDS OF COURT AND NOW, this day of October, 2014, upon consideration of Defendants' Motion for Judgment of Non Prosecution, a Rule is issued on Plaintiff to show cause why the requested relief should not be granted. Rule returnable twenty (20) days after service. Any answer filed shall be forwarded by the Prothonotary to chambers. By the Court, Albert H. Masla d, J. ‘-Sheldon A. Goodstadt, Esquire For Plaintiff Patricia Burns Horn, Esquire For Defendants sal CaZ tECL- !O/3v//y OXMAN GOODSTADT KURITZ, P.C. BY: SHELDON A. GOODSTADT, ESQUIRE IDENTIFICATION NO.: 19547 Six Neshaminy Interplex, Suite 211 Trevose, PA 19053 (215)638-9900 Attorneys for Plaintiff • SCOTT PATILLO Plaintiff vs. JEREMY STRAYER and ANTHONY STRAYER Defendants 2014f101r20 TIN 9. L' Lir. f 9 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL DIVISION AUGUST TERM, 2002 NO. 02-3799 PLAINTIFF, SCOTT PATILLO'S ANSWER TO DEFENDANTS' MOTION TO DISMISS Plaintiff hereby answers the defendants' motion to dismiss for lack of prosecution as follows: 1. Admitted 2. Admitted 3. Admitted 4. Admitted 5. Admitted 6. Admitted in part. It is admitted that plaintiff's attorney has not listed the case for trial since the status conference as plaintiff's counsel believed that the court would schedule the case for trial during the September Term 2011. 7. Admitted 8. Admitted for the reasons set forth in response to #6 above. 9. See answer to #8 above. 10. Admitted in part, denied in part. It is admitted that defendants are defending this case as to the damages to be awarded to the plaintiff. It is denied that the case is being defended on the basis of a dispute as to liability as alleged. By way of further answer, it is denied that any testimony by the investigating police officer would be an instrumental part of the defense of this case as he did not witness the incident. A copy of the police report is attached hereto as Exhibit "A" hereof. . The police report shows that defendant Jeremy Strayer was charged with following too closely, an offense to which he plead guilty. Moreover, although the defendants may be defending the case based on the lack of significant property damage to the vehicles involved, or the appearance of the plaintiff at the scene of the incident, this defense involves testimony that could be provided by Defendant Jeremy Strayer and has little to do with any testimony that could be provided by the investigating police officer, whose report fails to provide any details as to either of these issues. 11. Admitted 12. Admitted 13. Denied. Plaintiff is without any information as to the truth of this allegation. 14. Denied. Plaintiff is without any information as to the truth of this allegation. 15. Denied. It is specifically denied that the defendants have suffered any prejudice as alleged. To the contrary, the investigating police officer is not a crucial witness to their claimed defense. Moreover, the defendants could have taken the officer's discovery deposition is they felt that his testimony was so important. The same can be said as to the driver of the vehicle in which the plaintiff was riding at the time of the incident. The defendants could have deposed that potential witness, but chose to not do so. By way of further answer, the plaintiff was questioned by defense counsel at his deposition taken on May 28, 2004 as to the present whereabouts of Terri Polichetti, the driver of his vehicle, and he responded that he did not know as Terri no longer worked for his employer, Commerce Bank. See page 9 of the deposition of the plaintiff attached hereto as Exhibit "B" hereof 16. Admitted 17. Admitted in part, denied in part. In the Shope case cited by the defendants, the court determined that actual prejudice existed because Dr. Kruper, an expert witness and orthopedic surgeon, who was identified by the defense, and who had examined the plaintiff after the allegedly negligent treatment, had died, and therefore, the defense was precluded from discovering the findings of his examination or any opinions that he held as to liability, damages and causation. 18. See answer to #6 above. 19. Denied. It is specifically denied that the defendants have suffered any prejudice due to the inadvertent delay in prosecution of this matter to trial. To the contrary, the investigating state trooper could have been deposed by the plaintiff, assuming his whereabouts were known at any time between the filing of the. complaint on 8/9/02 and three (3) months from the settlement/status conference of 3/28/11. The defendants failed to take such action to depose him as to preserve his testimony. As they claim that he was instrumental to their defense, surely his deposition should have been one of the first things that was done after an answer to the complaint was filed. Instead, the defendants now complain that they are unable to locate him. Moreover, the defendants have provided the court with no information as to when they began to attempt to contact the state trooper or the efforts that were made in that regard, and how the delay prejudiced them when clearly, they failed to act promptly to preserve the testimony of this important witness. By way of further answer, the defendants have provided the court with no information as to when they began to attempt to contact the lay witness or the efforts that were made in that regard, and how the delay prejudiced them when clearly, the plaintiff himself did not know the whereabouts of the lay witness. Further, the defendants have not stated how they were prejudiced by their inability to locate the lay witness. No information was provided in the motion as to the testimony that the lay witness would likely offer at trial. WHEREFORE, plaintiff respectfully requests that the Defendants' motion to dismiss this case for lack of prosecution be denied. OX SHELDO ADT KURITZ, P.C. ODSTADT Attorney for Plaintiff Dated: November 19, 2014 Exhibit "A" XX REF ER TO OVERLAY SHEETS • 000525-0-g COMMONWEALTH OF PENNSYLVANIA POLICE ACC! ENT REPORT REPORTABLE • REPORTABLE PMTu$ Cray ACCIDENT LOCATION POLICE INFORMATION 1. INCIDENT NUMBER ,I1/11 ti‘ 077 2. AGENCY - - - 1 -- • • • - ' 3 STATION/ • • A . .._ STIt _., ?o.l. t ct:_ 4. PATROL ! NAME PRIGING I i4 Nit' VILA &c /3%i p I ZONE Mt 51 INVESTIGATOR . COUNTY e wit,gt-iv_Ardz CODE, 21. MUNICIPALITY LEt‘14Y thit4 '(03 PRINCIPAL ROADWAY INFORMATION DATE II T IME OF NAY 13. II KRIED 0 NUMBER .... 8. ARRIVAL al 4/6 TIME ACtIDENT INFORMATION Og titiao 1,V?? 10. DAY OF WEEK 12. NUMBER Of UNITS 114.tINJUREQ 15. PRN PROP. ACCIDENT (1% 16 DID VEHICLE HAVE TO BE REMOVED FROM THE SCENE? UNIT 1 UNIT 2 17. VEHICLE DAMAGE 0- NONE UNIT 1 1 - LIGHT 2 - MODERATE 3- SEVERE UNIT 2 STREET NAME r -J3 se z 23. SEEDY 24.)TYPE ACCESS LIMIT HIGHWAY INTERSECTING ROAD: 28. ROUTE NO. OR STREET NAME 27. SPEED LIMIT HIGHWAY CONTROL IF NOT AT INTERSECTION: 30. CROSS =ter - i SEGMENT MARKER AA' NtS2 ..SnAtkZ DIRECTION T 32. DISTANCt FROM SITE N 1 FROM SITE FT. 33. bitT4Fiet. WAS RED [ ESTIMATTD/Sr lt 2sF(PE 4 8. HAZARDOUS MATERIALS Y. 19. 19. PENNDOT PROPERTY 8' (34)- CONSTRUCTION , ZONE -) TRAFFIC - CONTROL DEVICE UNIT #1 UNIT 12 6 t EGALLY Y N PARKED? 39 PA TITLE OR OUT-OF-STATE VIN 40 OWNER 41 OWNER ADDRESS 42 CITY STATE & ZIPCODE LC Vir 43 YEAR in 44 mAxE 45 MODEL (NOT r46 INS PLATE pF - "11 1 37.REG. iLlri 0 - • ‘8 38. STATE BODY TYPE) 1.14 AA) 0 eit). 47 BODY (48, SPECIAL TYPE 6z - USAGE 56 INITIAL IMPACT r51..VEHICLE POINT Z.. 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DATE OF ----'--- PN I BIRTH 11 I k 1 n I KT 1012 56 DRIVER;57. STATE NUMBER S -V _ :1)1 58 DRIVER NAME 59. DRIVER c ADDRESS 0 1•A ? 57_ Do'. 60 CITY, STATE • & ZIPCODE C NNI SWAY el. nDkl ))1 SEX 62. DATE OF 63. PHON 1--#\ I BIRTH 01 1 - 64 COMM VEH. 65. DRIVER Y. N Ae CLASS C. 67 CARRIER 68 LARRIE ADDRESS 69 CITY, STATE & ZIPCODE 70 USDOT a !2 VEH COHF IG 15 NO OF AXLES MATERIALS „._. A,A•45 ,7 98) 73- CARGO • BODY TYPE HAZ ARDOUS • '00c # • 74 GVWR 77. RELEASE OF 'HAiivi)ki- y 0 N 0 UNK0 64. COMM. VgH.165. DRIVER Y Fit N CLASS 67. CARRIER 68. CARRIER • - ADDRESS 69. CITY, STATE & ZIPCODE VEH. • ia--ii - _. ! r73. CARGO , 74.atM•it - CONFIG. 1 BODY TYPE 75.-7.1.5.-0-0- - - - 1,-7&..HAZ AROOUS 77. RELEASE OF HAZIAAT MATERIALS AXLES I - , L Y I-._ 1) N t i utile. 3 PAGE: ..j. ___ • 78. RESPONDING EMS AGENCY ,o o Aie- - - ,, . , INCIDENT #: il 1 - j / y ‘ 07731 : TG MEDICAL FACIL IT Y RV INC 6 Rosioli7t L.. 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Pt r•4 t tr . .„. : Ki.:'A VI CI- ldi Nt • . •-.1* t S-0 PrM . 0 9-4k e..E.LAct-t V.:-. th.strif-L IA 1,4g*: g 04R-1 ' Z: -foi i m or.4 0 t.o 7--Z IS t&c .i-tl-Altt lig52121: a - C 14 R144Mtr l'A.ktf: _PLL`4.)._ tcNbi - .V• G 0 t • : CIRAAC, it'. ...1 I 7 ft. itAg. S"? 6 11R.0,.)i t3tt -.(\ OtA,4 1 A", A egkitt_itar -Mi. Scr1),)i-: N ES...3 C, KC Sl.5.: C 4 it's.t L. e..1.11 r.,. % • • • • . . . • ....: ,89. OESCR18E VIOLA TIONS 90. SECTION NUMBERS (ONLY IF CHARGED) TC NYC UNIT 1 0 0 UNIT 2 0 0 :.„.i.:::....„ ::::••••-", 91 ROBAEL E CTYPE USE TEST 3 ESULTS 0 NO TES r ED REFUSE.* O. % 0 (JN( •t -.;i; ,K).t.:? . RO BLE USE 92_ TYPE TEST ESULTS 0 NO TEST ri MEUSE 0.__ % 6 tR4X fk. INVESTIGATION •• YES F03 UNIT 1 UNIT 2 AA -45C (1/92) PAGE: CENT F.R Fo;L i Exhibit '13 i SCOTT PATILLO MAY 28, 2004 Multi -Page 1 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 interrogatories, any prior automobile accidents? Page 6 Q And how long have you been the VP? A I have been a VP for four months. Prior to that, I was a VP for three years, and prior to that an officer. Q All right. I think I saw you worked at some other companies after college. What was the job before Commerce? A All IT related. I have worked for Thomas Jefferson University. I have worked for Hewlett Packard on a contract. Qual Med through Hewlett Packard, various jobs. Q Typical IT? A Typical IT. Back in the day when you could usually, you know, move around a little bit. Now, of course, everybody is thankful to have a job. Q Are you married? A I am divorced. Q Divorced. Okay. When did you get divorced? A Two years ago February. Q Okay, So 2002. All right. Do you have any kids? A No, I don't. Q Okay. Any military service? A No. Q Have you been involved in -- I think I saw this Page 8 1 Q No. All of the injuries resolved from that? 2 A Yes. 3 Q All right. Now, the date we're talking about 4 here is August 21, 2001, is that correct? 5 A Correct. 6 Q All right. And what were you doing that day? 7 A I was in Harrisburg performing IT related work at 8 the Commerce Bank branches in this area. 9 Q Okay. 10 A With a team. 11 Q Okay. Okay. How many folks were on your team? 12 A All together, we had five or six. 13 Q Driving different vehicles? 14 A Yes. 15 Q Okay. What type of vehicle were you in? 16 A A Ford Econoline van. 17 Q It was a van? 18 A Uh-huh. 19 Q Okay. What -- was it loaded with things or was 20 it a passenger van? 21 A At the time it was pretty much empty. 22 Q Okay. So it was more of a service van than a -- 23 A It is a service van, not a passenger van. It's 24 only a two seater. 25 Q And were you the passenger or the driver of the Page 7 1 A Yes. 2 Q Okay. How many prior to the one we're here about 3 today? 4 A I really can't recall a number. 5 . Q Okay. Two, three, more than that? 6 A Forty years old, been driving since I was 7 seventeen years old, twenty-three years, three. 8 Q Did those include the one we're talking about 9 today? 10 A No. 11 Q Okay. Were you ever injured in any of those 12 other automobiles accidents? 13 A Yes. 14 Q Okay. And which one were you injured in? 15 A I was injured in an automobile accident in 1981 16 where I hit a tree. 17 Q What was the injuries that you sustained? 18 A I knocked my four bottom teeth out and had 19 thirteen stitches in my lip. 20 Q Okay. 1981, you would have been seventeen? 21 A Seventeen years old, just got a license. 22 Q Okay. Any other complications from that? 23 A No. 24 Q Okay. 25 A Root canals if that's a complication. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 vehicle? A I was the passenger. Q Okay. Were you wearing your seat belt? A Yes, I was. Q Who was driving the vehicle? A Terry Polichetti. MR. GOODSTADT: Spell that if you can. You better. BY MR. FERGUSON: Q I have it here as P -o -l -i -c -h -e -t -t -i A That's correct. Q And was Terry one of the IT guys on your staff? A Yes, he was. He worked for me. Q Okay. Does he continue to work for you at the present time? A He's no longer employed with the bank;, Q Okay. Do you know where he is? A No, I do not. Q Okay. Where were you guys coming from and where were you going to? A We were leaving a branch returning to our hotel. Q Okay. What hotel were you staying at, do you recall? A Holiday Inn. That's the best of my recollection. Q Right off the turnpike? Page 6 - Page 9 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 VERIFICATION SHELDON A. GOODSTADT, ESQUIRE, verifies that he is the attorney for the plaintiff in the within matter and that all statements made in this pleading are true and correct. He understands that false statements made herein are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. SHELDON A. STADT, ESQUIRE 1 OXMAN GOODSTADT KURITZ, P.C. BY: SHELDON A. GOODSTADT, ESQUIRE IDENTIFICATION NO.: 19547 Six Neshaminy Interplex, Suite 211 Trevose, PA 19053 (215)638-9900 Attorneys for Plaintiff COURT OF COMMON PLEAS SCOTT PATILLO CUMBERLAND COUNTY, PA Plaintiff vs. JEREMY STRAYER and ANTHONY STRAYER Defendants CIVIL DIVISION AUGUST TERM, 2002 NO. 02-3799 MEMORANDUM OF LAW The Defendants have filed the within Motion to Dismiss for lack of prosecution. In making the determination as to whether the motion is viable, the court must look to the guidance of the Supreme Court of Pennsylvania in their decision of Shope v. Eagle 710 A. 2d 1104 (1998). In the Shope case, the court determined that a three prong test was applicable to a defendant's motion for non pros. The court held that: 1. There must be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptness; 2. There must be no compelling reason for the delay; and 3. The delay must cause actual prejudice to the defendant The court further held that equitable principles should be considered in dismissing a case for inactivity. The record shows that the plaintiff has failed to take any activity in this case since the status/settlement conference was held on 3/28/11. Plaintiffs counsel was under the mistaken belief that the court would list this case for trial. Clearly, that belief by counsel was wrong as it was his burden to praecipe the case onto the trial list. The unfamiliarity of counsel with the local rules does not justify the failure to file for a trial listing. However, the circumstances cited by defendants' attorney do not remotely rise to "actual prejudice". The defendants' attorney had ample opportunity to take a discovery or trial deposition of the state trooper who investigated the accident. The motion does not provide any salient details of the efforts to locate the trooper, when such efforts began, nor any reasons why the trooper could not have been deposed before or after the arbitration hearing held in this matter. Instead, the defendants' attorney is heard to complain that the trooper is no longer employed by the State Police. For all we know, the trooper may still reside in the Commonwealth of Pennsylvania, or his address may be available by contacting the state police. Similarly, the defendants' attorney had the right to take the deposition of the lay witness, Ten -i Polichetti if she was able to locate him. She could have contacted the plaintiffs employer and determined if a last known address existed for the lay witness. The motion does not provide any salient details of the efforts that were made to locate the witness, nor the anticipated testimony that is likely to be provided by the witness. Furthermore, the testimony that the defendants' attorney would attempt to elicit from the state trooper or the lay witness, can be provided by Defendant Jeremy Strayer. He is capable of providing testimony as to his observations of the vehicular damage and of the plaintiff at the scene of the incident. The testimony that the defendants would like to proffer from the state trooper or the lay witness are duplicative of any testimony that said defendant would offer. Moreover, the state trooper, in his report, provided no information as to any observations of the plaintiff or the vehicles involved in the incident. It is unlikely that he would recall any facts that pertain to a crash that occurred fourteen (14) years before. The case at bar is clearly distinguishable from the facts cited in Shope, supra. In that case, Dr. Kruper, an orthopedic surgeon, who was identified by the defense as a possible expert witness, had examined the plaintiff after the allegedly negligent treatment, had died while the case was not pursued diligently. The defense argued that it was precluded from discovering the findings of Dr. Kruper's examination or any opinions that he held as to liability, damages or causation of the alleged act of negligence committed by the defendant, Dr. Eagle. The lower court made a specific finding that the defendants were prejudiced by the death of Dr. Kruper who had been identified as a possible expert witness. It is, therefore, clear, from the facts of this case, that the defendants have failed to demonstrate that actual prejudice occurred as to meet the third prong of the test enunciated by the Supreme Court, and consequently, this motion must be denied by the court. WHEREFORE, plaintiff respectfully requests that the Defendants' motion to dismiss this case for lack of prosecution be denied. 0 T KURITZ, P.C. SHELocippo STADT Attorney for Plaintiff Dated: November 19, 2014 I HEREBY CERTIFY that I served a true and correct copy of the foregoing Plaintiff's Answer to Defendants' Motion upon defense counsel by placing same in the United States Mail, first class postage prepaid on November 19, 2014 addressed to Patricia Burns Horn, Esquire. OXMAN GOODSTADT KURITZ, P.C. SHE DON A. STADT, ESQUIRE Attorney for Plainti SCOTT PATILLO, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. JEREMY STRAYER AND ANTHONY STRAYER, DEFENDANTS : 02-3799 CIVIL TERM AND NOW, this ORDER OF COURT `9 day of December, 2014, upon consideration of Defendants' Motion for Judgment of Non Prosecution and Plaintiff's answer thereto, the Motion is DENIED. Pursuant to Rule 212.5 a settlement conference is scheduled for the 12th day of January, 2015, at 11:00 a.m., in the chambers of the undersigned. All parties shall be in compliance with the requirements of Rule 212.5(b). By the Court, Albert H. Masland, J Sheldon A. Goodstadt, Esquire 1010 Haddonfield Berlin Rd. Ste. 3co. Voorhees, NJ 08043-3514 For Plaintiff Patricia Burns Horn, Esquire 140 S. Village Avenue, Suite 120 Exton, PA 19341 For Defendants :sal & ' e ' ,w ,l ecd SCOTT PATILLO, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. JEREMY STRAYER AND ANTHONY STRAYER, DEFENDANTS : 02-3799 CIVIL TERM ORDER OF COURT AND NOW, this p2O7 day of December, 2014, the settlement conference scheduled for January 12, 2015 is rescheduled to the 9th day of February, 2015, at 11:00 a.m., in the chambers of the undersigned. By the Court, Albert H. Masland, J. Sheldon A. Goodstadt, Esquire 1010 Haddonfield Berlin Rd. Ste. 3o , Voorhees, NJ 08043-3514 For Plaintiff (/ Patricia Burns Horn, Esquire 140 S. Village Avenue, Suite 120 Exton, PA 19341 For Defendants :sal Car €.s/ alLi...) Dia a/i y