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HomeMy WebLinkAbout11-2158,c , IA?flj? t t 1 ?? 23 P 111 2 ! 20M & Nu ULAKIS Jason P. Kutulakis, Esquire Attorney I.D. No: 80411 Melissa P. Tanguay, Esquire Attorney I.D. No: 307155 2 West High Street Carlisle, Pennsylvania 17013 (717) 249-0900 Terry Peiper 6 Buck Drive Carlisle, PA 17015 Plaintiff V. Dale E. Kendall 1438 Mountain Road Newburg, PA 17240 Defendant TO: Dale E. Kendall 1438 Mountain Road Newburg, PA 17240 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA File No: Civil Action - Law Jury Trial Demanded 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 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. 9a Al -43191 bt4 ??s? ?? 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 COUNTYBAR ASSOCIATION 32 SOUTH BEDFORD CARLISLE, PA 17013 (717) 249-3166 OR (800)990-9108 Respectfully submitted, ABOM& NUTULARYS, LLP DATE: FEBRUARY 21, 2011 Jas n P.1u ]al s, Esquire IEJ No. 80411 Melissa P. Tanguay, Esquire ID No. 307155 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorneys for Plaintiff Terry Peiper 6 Buck Drive Carlisle, PA 17015 Plaintiff V. Dale E. Kendall 1438 Mountain Road Newburg, PA 17240 Defendant File No: Civil Action - Law Jury Trial Demanded COMPLAINT AND NOW, comes Terry Peiper, by and through her attorneys, Jason P. Kutulakis, Esquire and Melissa P. Tanguay, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against Dale E. Kendall for $25,000, as follows: 1. Terry Peiper, Plaintiff, married individual, resides at 6 Buck Road, Carlisle, Cumberland County, Pennsylvania 17015. 2. Dale E. Kendall, Defendant, married individual, resides at 1438 Mountain Road, Newburg, Cumberland County, Pennsylvania 17420. 3. This action arises out of an automobile accident which occurred on October 15, 2010 at the intersection of Walnut Bottom Road and Richland Road in Dickinson Township, Cumberland County, Pennsylvania. 4. On October 15, 2010, Plaintiff was carefully and prudently stopped in her motor vehicle on Walnut Bottom Road, traveling east, to make a left turn onto Richland Road. 5. Plaintiff was driving a 1997 Chevrolet 1500. 6. On October 15, 2010, Defendant was traveling east on Walnut Bottom Road when he crested a hill and violently struck Plaintiff in her vehicle from behind. 7. Defendant was driving a 1995 Dodge Dakota. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 8. Plaintiff was flung backwards in her vehicle during the collision. 9. Plaintiff's vehicle was pushed to the left into oncoming traffic during the collision. 10. Plaintiff steered her vehicle back into the lane to avoid a head-on collision. 11. Plaintiff sustained serious personal injuries to her left arm and neck in the collision. 12. Plaintiff lost wages when she was forced to take time off work to recover from her injuries. 13. Plaintiff's vehicle was totaled in the collision. COUNT I: NEGLIGENCE 14. Paragraphs 1 through 13 are hereinafter incorporated by reference. 15. The collision was caused by the recklessness, carelessness and negligence of the Defendant, for that, among other acts and omissions, the Defendant: a. Operated the motor vehicle at a high, dangerous and excessive rate of speed under the circumstances then and there existing; b. Failed to reduce speed to avoid a collision; c. Failed to observe due care and precaution and to maintain proper and adequate control of the motor vehicle; d. Failed to keep a proper lookout for other vehicles lawfully upon the highway; e. Failed to exercise reasonable care in the operation of the motor vehicle under the circumstances then and there existing; and f. In other respects not now known to the Plaintiff, but which may become known prior to or at the time of trial. 16. As a direct and proximate result of the negligence and carelessness of the Defendant, the Plaintiff: a. Suffered serious and painful bodily injuries, physical pain and mental anguish, emotional distress, loss of the capacity for the enjoyment of life; b. Was required to undergo medical treatment and to incur medical costs and expenses in order to alleviate injuries, pain and suffering; c. Was precluded from engaging in normal activities and pursuits, including a loss of ability to earn money and of actual earnings; d. And, otherwise was hurt, injured and caused to sustain losses. 17. All of the Plaintiffs losses were, are and will be due solely to and by reason of the carelessness and negligence of the Defendant without any negligence or want of due care on the Plaintiff s part contributing thereto. WHEREFORE, the Plaintiff, Terry L. Peiper, demands judgment in her favor and against the Defendant, Dale E. Kendall, for TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) for loss of her vehicle, towing expenses, bodily injury, lost wages and pain and suffering. Respectfully Submitted, ABOM & NUTULAAYS, LLP DATE: FEBRUARY 21, 2011 Jas n P.AuDal e I No. 80411 Melissa P. Tanguay, Esquire ID No. 307155 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorneys for Plaintiff VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Z-/?- (( Date Terry Peeper 10 r F:\FILEWlients\3050 Donegal\Current\645\3050.645.pral Revised 3/2/11 4:04PM Daniel K. Deardorff, Esquires _3p ,- MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLEl ! `' MARTSON LAW OFFICES ` EiiL ski:- i 1= - I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant TERRY PEIPER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2158 CIVIL ACTION - LAW DALE E. KENDALL, Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON LAW OFFICES on behalf of Defendant Dale E. Kendall in the above matter. MARTSON LAW OFFICES By ? ?-' . Q '/' , ? I] - Darnel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Dated: 513)1 ..e CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Melissa P. Tanguay, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES By ` Ami J. Th m 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 3 ? 3 ? 11 t y F:\ FILES\Clients\3050 Donegal\Curtent\645V050.645.po1 Revised: 3/2/11 429PM Daniel K. Deardorff, Esquire cz; °: . ZZ: MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER'; +> MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant ) TERRY PEIPER, IN THE COURT OF COMMON PLEAS O F Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2158 CIVIL ACTION - LAW DALE E. KENDALL, Defendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS DEMURRER PURSUANT TO Pa. R.C.P. No. 1028(4) 1. Paragraph 15 stating that Defendant's conduct consisted of "recklessness" is not supported by facts set forth in the Complaint. 2. Paragraphs 15(e) and 15(f) do not set forth a cause of action. REQUEST FOR MORE SPECIFIC PLEADING PURSUANT TO Pa. R.C.P. No. 1028(3) 3. In the alternative, paragraphs 15(e) and 15(f) do not set forth sufficient facts. 4. Paragraph 16(d) does not set forth sufficient facts. WHEREFORE, Defendant requests that paragraph 15 of the Complaint alleging "recklessness," paragraph 15(e) and paragraph 15(f) be dismissed, and that Plaintiff be required to file a more specific pleading as to paragraphs 15(e), 15(f) and 16(d). Respectfully Submitted, MAR ON L W 101CES Y Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 t Dated: Attorneys for Defendant 3 i 3 l ? ? CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Preliminary Objections were served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Melissa P. Tanguay, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES By M11 Ami J. Th a 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 3 I ( l 41 r"- r ABOM & T Nu LILAKIS Jason P. Kutulakis, Esquire Attorney I.D. No: 80411 Melissa P. Tanguay, Esquire Attorney I.D. No: 307155 2 West High Street Carlisle, Pennsylvania 17013 (717) 249-0900 Terry Peiper IN THE COURT OF COMMON PLEAS 6 Buck Drive CUMBERLAND COUNTY, PENNSYLVANIA Carlisle, PA 17015 File No: 11-2158 Plaintiff Civil Action - Law V. Dale E. Kendall Jury Trial Demanded 1438 Mountain Road Newburg, PA 17240 Defendant NOTICE TO DEFEND TO: Dale E. Kendall C/o Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 Attorney for Defendant 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 Amended 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 COUNTYBARASSOCIATION 32 SOUTHBEDFORD CARLISLE, PA 17013 (717) 249-3166 OR (800)990-9108 Respectfully submitted, ABOM & KUTULAKIS, LLP DATE: MARCH 21, 2011 Jason . Ku", Esquire ID N . 8041 Me is P. Tanguay, Esquire ID No. 307155 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorneys for Plaintiff Terry Peiper IN THE COURT OF COMMON PLEAS 6 Buck Drive CUMBERLAND COUNTY, PENNSYLVANIA Carlisle, PA 17015 File No: 11-2158 Plaintiff Civil Action - Law V. Dale E. Kendall Jury Trial Demanded 1438 Mountain Road Newburg, PA 17240 Defendant AMENDED COMPLAINT AND NOW, comes Terry Peiper, by and through her attorneys, Jason P. Kutulakis, Esquire and Melissa P. Tanguay, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against Dale E. Kendall for $25,000, as follows: 1. Terry Peiper, Plaintiff, married individual, resides at 6 Buck Road, Carlisle, Cumberland County, Pennsylvania 17015. 2. Dale E. Kendall, Defendant, married individual, resides at 1438 Mountain Road, Newburg, Cumberland County, Pennsylvania 17420. 3. This action arises out of an automobile accident which occurred on October 15, 2010 at the intersection of Walnut Bottom Road and Richland Road in Dickinson Township, Cumberland County, Pennsylvania. 4. On October 15, 2010, Plaintiff was carefully and prudently stopped in her motor vehicle on Walnut Bottom Road, traveling east, to make a left turn onto Richland Road. 5. Plaintiff was driving a 1997 Chevrolet 1500. 6. On October 15, 2010, Defendant was traveling east on Walnut Bottom Road when he crested a hill and violently struck Plaintiff in her vehicle from behind. 7. Defendant was driving a 1995 Dodge Dakota. 8. Plaintiff was flung backwards in her vehicle during the collision. 9. Plaintiff's vehicle was pushed to the left into oncoming traffic during the collision. 10. Plaintiff steered her vehicle back into the lane to avoid a head-on collision. 11. Plaintiff sustained serious personal injuries to her left arm and neck in the collision. 12. Plaintiff lost wages when she was forced to take time off work to recover from her injuries. 13. Plaintiff's vehicle was totaled in the collision. 14. Defendant was cited for violation of 75 Pa.C.S.A. §3361. 15. Defendant plead guilty on October 17, 2011, see AOPC docket summary attached as Exhibit «A„ COUNT I: NEGLIGENCE 16. Paragraphs 1 through 13 are hereinafter incorporated by reference. 17. The collision was caused by the recklessness and carelessness and negligence of the Defendant, for that, among other acts and omissions, the Defendant: a. Operated the motor vehicle at a high, dangerous and excessive rate of speed under the circumstances then and there existing; b. Failure to observe and obey traffic controls under circumstances. c. Failure to pay proper and due heed and precaution to the point and position of Plaintiff . d. Failed to reduce speed to avoid a collision; e. Failed to observe due care and precaution and to maintain proper and adequate control of the motor vehicle; and f. Failed to keep a proper lookout for other vehicles lawfully upon the highway. g. Being negligent as a matter of law. h. Violating applicable laws, ordinances, statutes and or/regulations. i. Being otherwise negligent, careless or reckless under the circumstance. 18. As a direct and proximate result of the negligence and carelessness of the Defendant, the Plaintiff: a. Suffered serious and painful bodily injuries, physical pain and mental anguish, emotional distress, loss of the capacity for the enjoyment of life; b. Was required to undergo medical treatment and to incur medical costs and expenses in order to alleviate injuries, pain and suffering; and c. Was precluded from engaging in normal activities and pursuits, including a loss of ability to earn money and of actual earnings. 19. All of the Plaintiffs losses were, are and will be due solely to and by reason of the carelessness and negligence of the Defendant without any negligence or want of due care on the Plaintiffs part contributing thereto. WHEREFORE, the Plaintiff, Terry L. Peiper, demands judgment in her favor and against the Defendant, Dale E. Kendall, for TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) for loss of her vehicle, towing expenses, bodily injury, lost wages and pain and suffering. Respectfully Submitted, & KUTULAKIS, LLP DATE: MARCH 21, 2011 Jaso P. Kus, Esquire ID To. 80411 Melissa P. Tanguay, Esquire ID No. 307155 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorneys for Plaintiff VERIFICATION I verify that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. §4904, relating to unworn falsification to authorities. .3-/?,- /1 Date Terry Peiper a - MAR r`. t -------------- I Magisterial District Judge 09-3-02 DOCKET Docket Number: MJ-09302-TR-0003160-2010 Traffic Docket Commonwealth of Pennsylvania V. Dale E Kendall Jr. CASE INFORMATION Judge Assigned: Magisterial District Judge Vivian Cohick Issue Date: OTN: File Date: Arresting Agency: Carlisle PSP Arrest Date: Citation #: T0351013-5 Disposition: Coun : Cumberland Disposition Date: Township: Dickinson Township Case Status: STATUS INFORMATION Case Status Event Track Status Date Closed Filed - Copy Attached 10/25/2010 10/25/2010 10/25/2010 10/25/2010 10/18/2010 DEFENDANT INFORMATION Name: Kendall, Dale E Jr. Sex: Date of Birth: 08/10/1961 Race: Address(es): Primary Newburg, PA 17240 Page 1 of 2 10/17/2010 10/18/2010 Guilty Plea 10/25/2010 Closed Processing Status Completed Case Balance Due Case Disposed/Penalty Imposed Awaiting Sentencing Awaiting Plea Male Advised of His Right to Apply for Assignment of Counsel? No Public Defender Requested by the Defendant? No Application Provided for Appointment of Public Defender? No Has the Defendant Been Fingerprinted? No CASE PARTICIPANTS Participant Type Participant Name Defendant Kendall, Dale E Jr. Arresting Officer Rozman, Chariene # Charge Grade 1 75 § 3361 S Case Disposition Guilty Plea Offense Sea./Description 1 Driving at Safe Speed CHARGES Description Offense Dt. Disposition Driving at Safe Speed 10/15/2010 Guilty Plea DISPOSITION ! SENTENCING DETAILS Disposition Date Was Defendant Present? 10/25/2010 Yes Offense Disposition Guilty Plea MDJS 1200 Printed: 03/21/2011 12:45 pm Recent entries made in the court filing offices may not be immediately reflected on these docket sheets. Neither the courts of the Unified the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delay EXHIBIT omissions on these docket sheets. Docket sheet information should not be used in place of a criminal history background check, whi provided by the Pennsylvania State Police. Employers who do not comply with the provisions of the Criminal History Record Informatio Section 9101 et seq.) may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. 1 )q Magisterial District Judge 09-3-02 DOCKET Docket Number: MJ-09302-TR-0003160-2010 Traffic Docket Commonwealth of Pennsylvania V. Dale E Kendall Jr. Page 2 of 2 REGISTRY ENTRY INFORMATION Filed Date Entry Filer Applies Tg 10/25/2010 Penalty Satisfied Magisterial District Court 09-3-02 Dale E Kendall Jr., Defendant 10/25/2010 Penalty Assessed Magisterial District Court 09-3-02 Dale E Kendall Jr., Defendant 10/25/2010 Guilty Plea Magisterial District Judge Vivian Dale E Kendall Jr., Defendant Cohick 10/19/2010 Summons Issued Magisterial District Court 09-3-02 Dale E Kendall Jr., Defendant 10/18/2010 Traffic Citation Filed Magisterial District Court 09-3-02 Dale E Kendall Jr., Defendant CASE FINANCIAL INFORMATION Case Balance: $0.00 Next Payment Amt: Last Payment Amt: Next Payment Due Dt: Non-Monetary Assessment Type Assessment Amt Adjustment Amt Payment Amt Payment Amt Balance CAT/MCARE (Act 13 of 2002) $30.00 $0.00 $0.00 ($30.00) $0.00 Emergency Medical Services (Act 45 of 1985) $10.00 $0.00 $0.00 ($10.00) $0.00 Title 75, Motor Vehicle (Motor License Fund) $25.00 $0.00 $0.00 ($25.00) $0.00 ATJ $2.00 $0.00 $0.00 ($2.00) $0.00 Commonwealth Cost - HB627 (Act 167 of $7.65 $0.00 $0.00 ($7.65) $0.00 1992) County Court Cost (Act 204 of 1976) $19.20 $0.00 $0.00 ($19.20) $0.00 Judicial Computer Project $8.00 $0.00 $0.00 ($8.00) $0.00 State Court Costs (Act 204 of 1976) $7.65 $0.00 $0.00 ($7.65) $0.00 Postage - Case $6.00 $0.00 $0.00 ($6.00) $0.00 MDJS 1200 Page 2 of 2 Printed: 03/21/2011 12:45 pm Recent entries made in the court filing offices may not be immediately reflected on these docket sheets. Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on these docket sheets. Docket sheet information should not be used in place of a criminal history background check, which can only be provided by the Pennsylvania State Police. Employers who do not comply with the provisions of the Criminal History Record Information Act (18 Pa.C.S. Section 9101 et seq.) may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. CERTIFICATE OF SERVICE AND NOW, this 21" day of March, 2011, I, Shannon Freeman, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Amended Complaint, upon the Defendant by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following. Dale Kendall c/o Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 annon Freeman/ F--,\FILES\Clients\3050 Donega,\Current\645\3050.645.pos to amended complaint, Revised 3/29111 9:46AM Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant TERRY PEIPER, V. C`7 C -VZ rnm zrn :Z:o r--M nr° ' zc:? 5;c= -t T? A7 C? sl. N w -v c,a -i rn -vn., s° C) -'' XF3 or,.= : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-2158 CIVIL ACTION - LAW JURY TRIAL DEMANDED DALE E. KENDALL, Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT DEMURRER PURSUANT TO Pa R C.P. No. 1028(4) 1. Paragraph 17 stating that Defendant's conduct consisted of "recklessness" is not supported by facts set forth in the Complaint. 2. Paragraphs 17(g), 17(h) and 17(i) do not set forth a cause of action. REQUEST FOR MORE SPECIFIC PLEADING_ PURSUANT TO Pa R C.P. No. 1028(3) In the alternative, paragraphs 17(g), 17(h) and 17(i) do not set forth sufficient facts. FAILURE OF PLEADING PURSUANT TO Pa R.C.P. No. 1028(2) 4. Paragraphs 14-15 improperly allege that Defendant was cited for violation of 75 Pa. CSA §3361 and pleaded guilty, which is not admissible or relevant. WHEREFORE, Defendant requests that paragraph 17 of the Complaint alleging "recklessness," paragraphs 17(g), 17(h) and 17(i) and paragraphs 14-15 be dismissed, and that in the alternative Plaintiff be required to file a more specific pleading as to paragraphs 17(g), 17(h) and 17(i) . Respectfully Submitted, MARTSON LAW OFFICES By k Daniel K. eardorff, Esquire --S Ten East High Street Carlisle, PA 17013 (717) 243-3341 I Attorneys for Defendant ?? l t Dated: I ? CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Preliminary Objections were served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Melissa P. Tanguay, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES By Ami J. Th ma 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 31 &?q I I PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) C o TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) May 27, 2011 CAPTION OF CASE (entire caption must be stated in full) TERRY PEIPER vs. DALE E. KENDALL (List the within matter fAWW no " -------------------------------- rnr -<> cr-, r- ? 7' C"3 3 D? W u1 No. 11-2158 CIVIL Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason P. Kutulakis, Esquire, ABOM & KUTULAKIS, 2 W. High St., Carlisle, PA 17013 (Name and Address) Daniel K. Deardorff, Esquire, MARTSON LAW OFFICES, 10 E. High St., Carlisle, PA 17013 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 27, 2011 Date: April 5, 2011 Print your name Defendant Dale E. Kendall Attorney for ow rn- r-- -0 m =p C? ?-n a'r7 M 7a INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Daniel x. UearooITI, tsquire M F:\ FILES\Clients\3050 Donegal\Cnrtent\645\3050.645.pos to amended complaint2 ' Revised 4125/11 4.43PM '... ° 411. - ILL r ,i. r 1LV ?t L. 1- THE F R0 T C°iCI ?Q! I APES 26 P 2: 15 Daniel K. Deardorff, Esquire PENND MARTSONDEARDORFF WILLIAMS OTTO GILROY& FALLERC S LVNIA MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant TERRY PEIPER, V. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-2158 CIVIL ACTION - LAW DALE E. KENDALL, Defendant DEMURRER PURSUANT TO Pa. R.C.P. No. 1028(a)(4) 1. Paragraphs 17, 22, 23, 25, and 26 stating that Defendant's conduct consisted of "recklessness" is not supported by facts set forth in the Complaint. 2. Paragraphs 17(g), 17(h) and 17(i) do not set forth a cause of action. 3. Plaintiff's request for punitive damages is not supported by the facts set forth in the Complaint. REQUEST FOR MORE SPECIFIC PLEADING PURSUANT TO Pa. R.C.P. No. 1028(a)(3) 4. In the alternative, paragraphs 17(g), 17(h) and 17(i) do not set forth sufficient facts. FAILURE OF PLEADING PURSUANT TO Pa. R.C.P. No. 1028(a)(2) 5. Paragraphs 14-15 and 25(e) improperly allege that Defendant was cited for violation JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT of 75 Pa. CSA §3361 and pleaded guilty, which is not admissible, irrelevant, and impertinent. FAILURE OF PLEADING PURSUANT TO Pa. R.C.P. No. 1028(a)(2) 6. Pa. R.C.P. No. 1028(c)(1) only allows one Amended Complaint. WHEREFORE, Defendant requests that paragraphs 17, 22, 23, 25, and 26 of the Complaint alleging "recklessness," paragraphs 17(g), 17(h) and 17(i) and paragraphs 14-15 and paragraph 25(e) be dismissed, the request for punitive damages be dismissed, the Second Amended Complaint be dismissed, and that in the alternative Plaintiff be required to file a more specific pleading as to paragraphs 17(g), 17(h) and 17(i). Respectfully Submitted, MARTSON LAW OFFICES By ?),) I, - Daniel . Deardorff, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Dated: April 26, 2011 ti CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Preliminary Objections were served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Melissa P. Tanguay, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 By MARTSON LAW OFFICES Ami J. Thu a" 10 East High "'Street Carlisle, PA 17013 (717) 243-3341 Dated: April 26, 2011 cp j A PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) May 27, 2011 CAPTION OF CASE (entire caption must be stated in full) TERRY PEIPER vs. DALE E. KENDALL r- C? 'L3 rU No. 11-2158 CIVIL Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Second Amended Complaint. 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason P. Kutulakis, Esquire, ABOM & KUTULAKIS, 2 W. High St., Carlisle, PA 17013 (Name and Address) (b) for defendants: Daniel K. Deardorff, Esquire, MARTSON LAW OFFICES, 10 E. High St., Carlisle, PA 17013 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 27, 2011 Date: April 26, 2011 Print your name Defendant Dale E. Kendall Attorney for r"rl f"' --t c: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. (List the within matter 45khe i38kt rW?*r -------------------------------- Ui Y-" N -< 2-' Cn Daniel K. Deardorft, Esquire IF Pt??3,r 1-ICE OM & U U Hn'y , 1 Y LAKIS & - PM Jason P. Kutulakis, Esquire Attorney I.D. No: 80411 /: ;!{B C PE 2 West I ligh Street 0JU1; M ` ??, VA? Carlisle, Pennsylvania 17013 (717) 249-0900 Terry Peiper, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. File No: 11-2158 Civil Action -Law Dale E. Kendall, Defendant : Jury Trial Demanded NOTICE TO DEFEND TO: Dale E. Kendall c/o Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 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 Amended 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 COUNTYBAR ASSOCIATION 32 SOUTHBEDFORD CARLISLE, PA 17013 (717) 249-3166 OR (800)990-9108 Respectfully submitted, r M & TULA"S, LLP " n Jaso P. K tulakis, Esquire ID o. 8041*' 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff T'Mom CSC" &U ULAKIS Jason P. Kutulakis, Esquire Attorney I.D. No: 80411 2 West Ifigb Street Carlisle, Pennsylvania 17013 (717) 249-0900 Terry Peiper, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. Dale E. Kendall, Defendant File No: 11-2158 Civil Action -Law Jury Trial Demanded PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT FACTUAL BACKGROUND 1. On April 18, 2011, Plaintiff's filed their Second Amended Complaint. 2. On April 26, 2011, Defendant's filed their Preliminary Objections to Plaintiff's Second Amended Complaint. 3. Defendant's allege in paragraph 6 of their Preliminary Objections that pursuant to 42 Pa.R.C.P. §1028(c)(1), Defendant's are only permitted to file "one Amended Complaint." DEMURRER PURSUANT TO Pa.R.C.P. §1028(a)(3) and (4 and (c)(1) 4. Rule 1028(c)(1) states that, "a party may file an amended pleading as of course within 21 days after service of a copy of Preliminary Objections. If a party has filed an amended pleading as of course, the Preliminary Objections to the original pleading shall be deemed moot." 5. In their Preliminary Objections, Defendant's provide no authority of law or basis for the conclusion that a party is only permitted to amend its Complaint one time prior to the expiration of those 20 days. 6. It is believed and therefore averred that paragraph 6 of Defendant's Preliminary Objections are indeed frivolous and without merit whatsoever. WHEREFORE, Plaintiffs request that Defendant's Preliminary Objection relating to paragraph 6 of their Preliminary Objections be dismissed and the Court award costs associated with the dismissal of this baseless Preliminary Objection. Respectfully Submitted, ABOM & KUTULAKUS, LLP DATE: M.?Y 5, 2011 4as . Kutulakis, Esquire o. 411 2 West High Street Carlisle, PA 17013 (717)249-0900 Attorney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this day of May, 2011, I, Shannon Freeman, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Plaintiff's Preliminary Objections to Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint, upon the Defendant by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Daniel K Deardorff, Esquire Ten East High Street Carlisle, PA 17013 Attorney for Defendant annon Free TERRY PEIPER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION c DALE E. KENDALL, r- ca Defendant NO. 2011-2158 CIVIL TERM rn D IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAI14&F4 s? =it SECOND AMENDED COMPLAINT; PLAINTIFF'S PRELIMIN ' OBJECTIONS TO DEFENDANT'S PRELIMINARY OBJECTIOI 'O?' °f'_' PLAINTIFF'S SECOND AMENDED COMPLAINT .`? w BEFORE OLER, EBERT and MASLAND, JJ. ORDER OF COURT AND NOW, this 16`h day of June, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiffs Second Amended Complaint and Plaintiff's Preliminary Objections to Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint, following oral argument held on May 27, 2011, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's preliminary objections are dismissed, and Defendant is offered a period of 20 days from the date of this order to file an answer to Plaintiff's Second Amended Complaint; and 2. The Court having dismissed Defendant's preliminary objections to Plaintiff's Second Amended Complaint on the merits, Plaintiff's "demurrer" to Defendant's preliminary objections is deemed moot. BY THE COURT, J. esley Oler, ., J. Jason P. Kutulakis, Esq. Melissa P. Tanguay, Esq. 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff Daniel K. Deardorff, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Oopo-papb-' 0 Attorneys for Defendant TERRY PEIPER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION DALE E. KENDALL, Defendant NO. 2011-2158 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT; PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE OLER, EBERT and MASLAND, JJ. OPINION and ORDER OF COURT OLER, J. June 16, 2011. In this civil action, Plaintiff has sued Defendant for personal injuries and property damage arising out of a motor vehicle accident that allegedly occurred as a result of Defendant's negligent and reckless conduct.' Specifically, it is alleged that Defendant drove a speeding truck into the rear of a stopped vehicle operated by Plaintiff.2 For disposition at this time are Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint,3 as well as Plaintiffs preliminary objections to Defendant's 'Plaintiffs Second Amended Complaint, filed April 18, 2011 (hereinafter Pl.'s Sec. Am. Compl.). 2 Pl.'s Sec. Am. Compl., ¶¶4-7, 17. 3 Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint, filed April 26, 2011 (hereinafter Def.'s Prelim. Objections to Pl.'s Sec. Am Compl.) preliminary objections.4 Both sets of preliminary objections were argued on May 27, 2011. For the reasons stated in this opinion, Defendant's preliminary objections to Plaintiff's second amended complaint will be dismissed, and Plaintiffs preliminary objections to Defendant's preliminary objections will be deemed moot. STATEMENT OF FACTS On February 23, 2011, Plaintiff, Terry Peiper, filed a complaint alleging negligence on the part of Defendant, Dale E. Kendall, relating to a motor vehicle accident involving Plaintiff and Defendant that allegedly occurred on October 15, 2010.5 Defendant filed preliminary objections to the complaint on March 3, 20116 requesting, inter alia, a more specific pleading.' On March 21, 2011 Plaintiff filed an amended complaint that was very similar to Plaintiffs original complaint.g On March 29, 2011, Defendant filed preliminary objections to Plaintiff's amended complaint, essentially reiterating Defendant's prior preliminary objections.9 On April 18, 2011, Plaintiff filed a second amended complaint that included, for the first time, an allegation of recklessness and a request for punitive damages. 10 4 Plaintiff's Preliminary Objections to Defendant's Preliminary Objections to Plaintiff s Second Amended Complaint, filed May 6, 2011 (hereinafter Pl.'s Prelim. Objections to Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl.). ' Plaintiffs Complaint, filed February 23, 2011. 6 Defendant's Preliminary Objections, filed March 3, 2011 (hereinafter Def.'s Prelim. Objections). ' Def.'s Prelim. Objections, ¶¶3-4. s Plaintiffs Amended Complaint, filed March 21, 2011. 9 Defendant's Preliminary Objections to Plaintiffs Amended Complaint, filed March 29, 2011. 10 Pl.'s Sec. Am. Compl. 2 On April 26, 2011, Defendant filed preliminary objections to Plaintiff's Second Amended Complaint, wherein Defendant (a) demurred to Plaintiffs complaint to the extent that it was based upon "recklessness,"" to the extent that it requested punitive damages, 12 and to the extent that it alleged that Defendant "[a]cted with reckless disregard for the well-being of other vehicles and people on the roadway" (subparagraph 17(g) of the second amended complaint) and "created an unreasonable risk of harm to Plaintiff," (subparagraph 17(h) of the second amended complaint), 13 (b) requested, in the alternative, a more specific pleading with respect to the allegations that Defendant "[a]cted with reckless disregard for the well-being of other vehicles and people on the roadway" and "[c]reated an unreasonable risk of harm to Plaintiff,"" (c) moved to "dismiss" allegations that Defendant had pled guilty to driving at an unsafe speed in connection with the accident, on the ground that the allegations were "not admissible, irrelevant and impertinent," 15 and (d) moved to dismiss Plaintiff's entire second amended " De£'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶1 12 De£'s Prelim. Objections to Pl.'s Sec. Am. Compl. ¶3. " De£'s Prelim. Objections to Pl.'s Sec. Am. Compl. ¶2. Defendant's Preliminary Objections to Plaintiffs Second Amended Complaint asserted, inter alia, that subparagraphs 17(g), 17(h) and 17(i) "do not set forth a cause of action." Subparagraph 17(g) alleged that Defendant "[a]cted with reckless disregard for the well-being of other vehicles and people on the roadway" and subparagraph 17(h) alleged that Defendant "[c]reated an unreasonable risk of harm to Plaintiff." There was no subparagraph 17(i) in the second amended complaint. " De£'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶4. Defendant's Preliminary Objections to Plaintiffs Second Amended Complaint asserted, inter alia, that subparagraphs 17(g), (17(h) and 17(i) "[i]n the alternative ... do not set forth sufficient facts." Subparagraph 17(g) alleged that Defendant "[a]cted with reckless disregard for the well-being of other vehicles and people on the roadway" and subparagraph 17(h) alleged that Defendant "[c]reated an unreasonable risk of harm to Plaintiff." There was no subparagraph 17(i) in the second amended complaint " Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶5. 3 complaint on the ground that under the Rules of Civil Procedure a plaintiff may file of right only one amended complaint in response to preliminary objections. 16 Plaintiff chose on May 6, 2011, to file a preliminary objection in the form of a "demurrer" to Defendant's preliminary objections insofar as they challenged Plaintiff's right to file a second amended complaint. 17 Plaintiff characterized Defendant's preliminary objection in this regard as "frivolous" and "without merit whatsoever." 18 The facts alleged in Plaintiff's Second Amended Complaint pertaining to his claims for negligence and recklessness and request for punitive damages may be summarized as follows: Terry Peiper, Plaintiff, is an individual who resides in Carlisle, Cumberland County, Pennsylvania. 19 Dale E. Kendall, Defendant, is an individual who resides in Newburg, Cumberland County, Pennsylvania.20 On October 15, 2010, Plaintiff, operating a 1997 Chevrolet 1500,21 was "carefully and prudently stopped in her vehicle on Walnut Bottom Road, ,22 facing east at the intersection of Walnut Bottom Road and Richland Road, in Dickinson Township, Cumberland County, Pennsylvania.23 Defendant, driving a 1995 Dodge Dakota,24 was 16 Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶6. 17 Plaintiffs Preliminary Objections to Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint, filed May 6, 2011 (hereinafter Pl.'s Prelim. Objections to Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl.). 18 Pl.'s Prelim. Objections to Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶6. 19 Pl.'s Sec. Am. Compl., 11. 20 Pl.'s Sec. Am. Compl., ¶2. 21 Pl.'s Sec. Am. Compl., ¶5. 22 Pl.'s Sec. Am. Compl., ¶4. 23 Pl.'s Sec. Am. Compl., ¶3. 4 travelling east in his vehicle at a "dangerous and excessive"25 rate of speed on Walnut Bottom Road when he "crested a hill" and collided with the rear of Plaintiff's motor vehicle.26 Defendant was cited for a violation of Section 3361 of the Motor Vehicle Code, "Driving Vehicle at a Safe Speed," subsequent to the collision,27 and on October 17, 2011, he pled guilty to the charge.28 The collision caused Plaintiff to be "flung backwards in her vehicle"29 and "pushed [Plaintiff's vehicle] to the left into oncoming traffic."30 Plaintiff avoided a head- on collision, 31 but "sustained serious personal injuries to her left arm and neck in the collision [with Defendant]." 32 Plaintiff suffered losses from the collision in the form of the "[total] loss of her vehicle, towing expenses, bodily injury, lost wages, and pain and suffering. ,33 In Paragraph 17 of the second amended complaint, Plaintiff asserts that "the collision was caused by the recklessness, carelessness, and negligence of the Defendant. ,34 Defendant evidenced his recklessness, carelessness, and negligence in the following particulars: 24 Pl.'s Sec. Am. Compl., ¶7. 21 Pl.'s Sec. Am. Compl., ¶17. 26 Pl.'s Sec. Am. Compl., ¶6. n Pl.'s Sec. Am. Compl., ¶14. 28 Pl.'s Sec. Am. Compl., ¶15. 29 Pl.'s Sec. Am. Compl., % 30 Pl.'s Sec. Am. Compl., ¶9. 31 Pl.'s Sec. Am. Compl., ¶10. 32 Pl.'s Sec. Am. Compl., ¶11. " Pl.'s Sec. Am. Compl., Request for Relief Counts I, 11. 34 pl.'s Sec. Am. Compl., ¶17. 5 a. Operat[ing] the motor vehicle at a high, dangerous and excessive rate of speed under the circumstances then and there existing; b. Fail[ing] to observe and obey traffic controls under the circumstances; C. Fail[ing] to pay proper and due heed and precaution to the point and position of the Plaintiff; d. Fail[ing] to reduce speed to avoid a collision; e. Fail[ing] to observe due care and precaution and to maintain proper and adequate control of the motor vehicle; f. Fail[ing] to keep a proper lookout for other vehicles lawfully upon the roadway; g. Act[ing] with reckless disregard for the well-being of other vehicles and people on the roadway; and h. Creat[ing] an unreasonable risk of harm to Plaintiff.35 Defendant's recklessness, carelessness, and negligence were further evidenced by his failure to abide by the speed limit despite his familiarity with the same on Walnut Bottom Road.36 Plaintiff alleges that "Defendant knew that he was breaking the speed limit at [that location on the Walnut Bottom Road] and [that doing so] would increase the likelihood of his inability to stop to avoid other automobiles in the roadway[, thus] increasing the likelihood of an accident. "37 DISCUSSION Defendant's demurrer relating to allegations of recklessness and claim for punitive damages. A preliminary objection to a complaint in the nature of a demurrer is 35 Pl.'s Sec. Am. Compl., ¶17. 36 Pl.'s Sec. Am. Compl., ¶¶18-21. 37 Pl.'s Sec. Am. Compl., ¶21. 6 appropriate where the complaint is legally insufficient to sustain a cause of action recognized by law. Pa. R.C.P.1028(a)(4). Preliminary objections in the nature of a demurrer normally require the court to resolve the issues solely on the basis of the challenged pleading. In general, no testimony or other evidence outside of the pleading may be considered to dispose of the legal issues presented by the demurrer. Cooper v. Church of St. Benedict, 2008 PA Super 171, ¶2, 954 A.2d 1216, 1218, citing Hess v. Fox Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798, 805, appeal denied, 596 Pa. 733, 945 A.2d 171 (2008). When considering a demurrer, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, as admitted and true and decide whether, based on the facts averred, recovery is impossible as a matter of law. Wagner v Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d 1247, 1250 , citing Wiernik v. PHH U.S. Mortg. Corp., 1999 PA Super 193, 736 A.2d 616 (citations omitted), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). The demurrer should be sustained only if, after the averments of the complaint are assumed to be true, the plaintiff has failed to assert a legally cognizable cause of action and, therefore, cannot prevail. See Lerner v. Lerner, 2008 PA Super 183, ¶11, 954 A.2d 1229, 1234, citing Kramer v. Dunn, 2000 PA Super 101, ¶18, 749 A.2d 984, 990. To justify an award of punitive damages, the wrongful conduct of the defendant must be "outrageous." Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984) (adopting section 908(2) of the Restatement (Second) of Torts). Conduct is considered to be outrageous if it is intentional, willful, or wanton, Slappo v. J's Development Associates 7 Inc., 2002 PA Super 18, 791 A.2d 409, malicious or oppressive, Jahanshahi v. Centura Development Inc., 2003 PA Super 43, 816 A.2d 1179, 1188, or "done with a bad motive or with a reckless indifference to the interests of others." Jude Technical Services Inc. v. Clancy, 2002 PA Super 391, 813 A.2d 879, 889. "Reckless indifference to the interests of others" refers to an act "of an unreasonable character, in disregard to a risk known to [the tortfeasor] or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow." McClellan v. HMO of Pennsylvania, 413 Pa. Super. 128, 145, 604 A.2d 1053, 1061 (1992). Thus, for conduct to be considered reckless "[i]t must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence." Hall v. Jackson, 2001 PA Super 334, 788 A.2d 390, 403, citing Moran v. G. & W.H. Corson, Inc., 402 Pa. Super. 101, 586 A.2d 416, 423 (1991) (quoting Comments to Restatement (Second) of Torts §500.) Within reason, the issue of whether a defendant's actions constitute outrageous or reckless conduct is a factual matter, relegated to the determination of the fact-finder. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991); Trotman v. Mecchella, 421 Pa. Super. 620, 625, 618 A.2d 982, 985 (1992). In deciding whether punitive damages will be awarded, the trier-of-fact can consider the act itself and all the circumstances, including the motive of the wrongdoer, the relations between the parties, and the provocation or want of provocation for the act. Focht v. Rabada, 217 Pa. Super. 35, 40, 268 A.2d 157, 160 (1970). The court should peremptorily rule upon the 8 viability of a punitive damages claim "only when no reasonable inference from the facts alleged supports a punitive award." Eagle Traffic Control v. Addco, 889 F. Supp. 200, 201 (E.D. Pa. 1995), citing Trotman v. Mecchella, 421 Pa. Super. at 625, 618 A.2d at 985 (1992). In support of his demurrers with respect to Plaintiff's allegation of recklessness and claim for punitive damages, Defendant argues that Plaintiff's claims that "Defendant's conduct consisted of `recklessness' [are] not supported by facts set forth in the Complaint,"38 that Plaintiffs claim "do[es] not set forth a cause of action, ,39 and that Plaintiffs request for punitive damages "is not supported by the facts set forth in the Complaint."40 Although the Plaintiff has the burden of proving a mental state of recklessness on the part of Defendant that would merit Plaintiffs receipt of punitive damages, as a general rule the trier-of-fact must determine whether Plaintiff has met this burden, not a court presiding over preliminary objections, where the issue is at least arguable. This general rule is particularly applicable where an assessment of the degree of risk to which a speeding motorist subjects other persons on the road is dependent upon an evaluation of many variables, including the rate of speed and road, weather and traffic conditions. Accordingly, the demurrers to Plaintiffs Second Amended Complaint as they relate to recklessness and punitive damages will be dismissed. 38 Def's Prelim. Objections to Pl.'s Sec. Am. Compl., 11. 39 Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶2. ao Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶3. 9 Defendant's contention that Plaintiff failed to state a cause of action in paragraphs 17(g) and 17(h)41 of Plaintiff's Second Amended Complaint likewise has no merit. Paragraph 17 of Plaintiff's Second Amended Complaint alleges that the collision in question was caused by the "recklessness, carelessness and negligence of the Defendant" in that he "[o]perated the motor vehicle at a high, dangerous and excessive rate of speed under the circumstances" and "failed to observe and obey traffic controls."42 These allegations, as subparts of Paragraph 17, must be considered in conjunction with the balance of the paragraph, and do not in themselves purport to represent independent causes of action. Accordingly, Defendant's demurrer with respect to these subparagraphs of Plaintiff's Second Amended Complaint will be dismissed. Request for a more specific pleading. Pennsylvania Rule of Civil Procedure 1028(a)(3) governs requests for more specific pleadings. The issue implicated by Rule 1028(a)(3) is "whether the complaint is sufficiently clear to enable the defendant to prepare his defense or ... [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." Rambo v. Green, 2006 PA Super 231, ¶11, 906 A.2d 1232, 1236, citing Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973). The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise " Although Defendant also objected to subparagraph 17(i) of Plaintiff's Second Amended Complaint, the court cannot determine what subparagraph 17(i) refers to as no such subparagraph appears in the amended complaint. 42 Pl.'s Sec. Am. Compl., 117. 10 measurement. Pike County Hotels Corp. v. Kiefer 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1976). A complaint is sufficiently specific if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense. Boyd v. Rockwood Area School District, 907 A.2d 1157, 1167-68 n.20 (Pa. Commw. Ct. 2006). "[I]n determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in the context of all of the allegations in the complaint." United Sportsmen of Pennsylvania v. Pennsylvania Game Commission (PGQ, 950 A.2d 1120, 1134 (Pa. Commw. Ct. 2008). Defendant's motion for a more specific pleading with respect to Paragraph 17, subparts 17(g) and 17(h), contends that they "do not set forth sufficient facts."43 Although subparagraphs 17(g) and 17(h), when viewed independently of the rest of Plaintiff's Second Amended Complaint, may not "set forth sufficient facts," the law requires that the subparts be read in the context of the entire complaint. When read in this context, these averments are not so general as to deprive Defendant of the ability to prepare a defense. Motion to strike for inclusion of impertinent material. Pennsylvania Rule of Civil Procedure 1028(a)(2) governs preliminary objections in the nature of a motion to strike impertinent material. Rule 1028(a)(2) states that " [p]reliminary objections may be filed by any party... [for] failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent material."44 For allegations to be stricken as "scandalous 43 Def.'s Prelim. Objections to Pl.'s Sec. Am. Compl., ¶4. as Pa. R.C.P. 1028(a)(2). 11 and impertinent," they must be immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Com., 710 A.2d 108 (Pa. Commw. Ct. 1998). In this regard, the Pennsylvania Commonwealth Court in Diess v Pennsylvania Dept. Of Transp., 935 A.2d 895, 909 (Pa. Commw. Ct. 2007), stated that "[c]ourts may regard such pleadings as simple surplusage and need not sustain [an objection to] every averment that is not pertinent to the cause of action, but [noted that] trial courts, as recognized in 4 Standard Pennsylvania Practice 2d, §16:60, have sustained such objections when the averments are either prejudicial or create confusion." Where, as here, the party challenging material in a pleading as impertinent will have ample opportunity to object to admission of the item at the evidentiary stage of the case, and the potential for prejudice, embarrassment or confusion is minimal, it would seem that there is no compelling need to strike the material on a preliminary objection. Demurrer for failure to conform to proper pleading procedures-filing of multiple amended complaints. Pennsylvania Rule of Civil Procedure 1028(c) governs the filing of amended complaints. Rule 1028 states, in part, as follows: (c)(1) A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading of course, the preliminary objections to the original pleading shall be deemed moot. (c)(2) The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise. Pa. R.C.P. 1028(c)(1), (c)(2). This Rule does not expressly preclude the filing of successive amended complaints in response to successive preliminary objections. 12 Furthermore, Pennsylvania case law reveals a tendency of courts to allow several amended complaints where the filing of the amended complaints has proceeded in a timely manner and in good faith. See Vetenshtein ex rel. Vetenshtein v. City of Philadelphia, 755 A.2d 62 (Pa. Commw. Ct. 2000); Lawrence v. Walker, 2009 WL 5248560 (Pa. Corn. Pl., Centre Cnty. 2009); Mansour ex rel. Mansour v. Gnaden Huetten Memorial Hosp., 2007 WL 5234151 (Pa. Com. Pl., Monroe Cnty. 2007). Indeed, even when a party lacks the right to file an amended complaint as of course under the provisions of the Rules of Civil Procedure, the amendment may be allowed in the discretion of the trial court. See Koresko v. Farley, 844 A.2d 607 (Pa. Commw. Ct. 2004). Accordingly, Defendant's motion to strike Plaintiff's Second Amended Complaint in its entirety will not be sustained. Based upon the foregoing, the following order of court will be entered. ORDER OF COURT AND NOW, this 16'h day of June, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint and Plaintiff's Preliminary Objections to Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint, following oral argument held on May 27, 2011, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's preliminary objections are dismissed, and Defendant is offered a period of 20 days from the date of this order to file an answer to Plaintiff's Second Amended Complaint; and 13 2. The Court having dismissed Defendant's preliminary objections to Plaintiff's Second Amended Complaint on the merits, Plaintiff's "demurrer" to Defendant's preliminary objections is deemed moot. BY THE COURT s/ J. Wesley Oler Jr. J. Wesley Oler, Jr., J. Jason P. Kutulakis, Esq. Melissa P. Tanguay, Esq. 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff Daniel K. Deardorff, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorneys for Defendant 14 F:\FILES\Clients\3050 Donega1\Cuaent\645\3050.645.ansI Revised: 6/21 /11 5:12PM rr.7 Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER a~ MARTSON LAW OFFICES I.D. 17837 ?= rv 10 East High Stree t Carlisle, PA 17013 m - (717) 243-334 1 -, Attorneys for Defendant TERRY PEIPER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2158 DALE E. KENDALL, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S SECOND AMENDED COMPLAINT TO: TERRY PEIPER Plaintiff, and her attorney, JASON KUTULAKIS, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes Defendant, Dale E. Kendall, by and through his attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby responds to Plaintiff's Complaint as follows: 1-2. Admitted. 3-27. Denied pursuant to Pa. R. C.P. 1029(e). WHEREFORE, Defendant demands judgment in his favor against Plaintiff. NEW MATTER 28. It is believed that Plaintiff may have been comparatively negligent or assumed the risk of injury by operating her vehicle in a careless and negligent manner. 29. Defendant reserves the right to add additional New Matter based on information received from upcoming discovery in this case. 30. Plaintiff's recovery, if any, may be diminished pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Act. 31. Defendant was faced with a sudden emergency not caused by himself in that he was driving when Plaintiff suddenly, and without warning, stopped ahead requiring Defendant to react promptly. WHEREFORE, Defendant demands judgment in his favor against Plaintiff. MARTSON LAW OFFICES By '-Z - Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: Z? Attorneys for Defendant 4 VERIFICATION DANIEL K. DEARDORFF, ESQUIRE, of the firm of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, attorneys for the Defendant, Dale E. Kendall, in the within action, certifies that the statements made in the foregoing Answer with New Matter are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Daniel K. Dear off, Esquire . F?TILES\Clien 0050 Donegal\Cument\645\3050.645.ansl A . CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Manson Law Offices, hereby certify that a copy of the foregoing Answer with New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES By ? Ami J. Th a 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: l?I?, RTILES\Clients\3050 Donegal\Current\645\3050.645.pra2 Revised 6/27/11 3:26PM D-OFIC OF THELPRO THONO TAR Y 2011 JUN 28 AM 9: 3 7 CUMBERLAND COUNTY PENNSYLVANIA Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant TERRY PEIPER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2158 CIVIL ACTION - LAW DALE E. KENDALL, Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please replace the Verification of Daniel K. Deardorff, Esquire, with the attached Verification of Defendant, Dale E. Kendall, on Defendant's Answer with New Matter which was filed on June 22, 2011. Dated: June 4, 2011 Respectfully submitted, MARTSON LAW OFFICES (, . By 2 D iel . Deardorff, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant VERIFICATION The foregoing Answer with New Matter 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. U co Dale E. Kendall FAFILES\Clients\3050 Donegal\Current\645\3050.645.anst CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES Y Trici D. Ec e oad 10 East High Str t Carlisle, PA 17013 (717) 243-3341 Dated: June d, 2011 Aom ?' LiTULAKIS Jason P. Kutulahis, Esquire ,Attorney I.D. No: 80411 2 Wcst Iligh Street Carlisle, Pennsylvania 17013 (717) 249-0900 Terry Peiper, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. File No: 11-2158 Civil Action -Law D ? ' : Dale E. Kendall -- i -? Defendant Jury Trial Demanded rn _-j_- -I y? 1 - NOTIGE TO DEFEND r - te r . zr CA.) '--I we r? "• C) 'Z -rl TO: Dale E. Kendall CD CD --rl c/o Daniel K. Deardorff, Esquire Ten East High Street --- Carlisle, PA 17013 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 Amended 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 COUNTYBAR ASSOCIATION 32 SOUTHBEDFORD CARLISLE, PA 17013 (717) 249-3166 OR (800)990-9108 Respectfully submitted, & A7JZ JLAKIS. LLP Dxrl Jui,Y 13, 2011 Jas n P. Ku akis, Esquire ID o. 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plainti C} C N C) ? M U,r ern AKIS Nu UL . ?' , Jason P. lutulakis, ]:squire 5 C" C':: attorney I.D. No: 80411 2 West l ligb Street Carlisle, Pennsylvania 17013 (717) 249-0900 Terry Peiper, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. File No: 11-2158 Civil Action -Law Dale E. Kendall, Defendant Jury Trial Demanded PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW, this 13`h day of July, 2011, comes the Plaintiff, by and through her counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, LLP, and respectfully files the Preliminary Objection to Defendant's New Matter to Plaintiff's Second Amended Complaint, and in support thereof avers the following: 1. On June 22, 2011, Defendant filed his Answer with New Matter to Plaintiff's Second Amended Complaint. 1. Failure of Pleading to Conform to Law or Rule of Court and Insufficient Pleading 2. Paragraph 29 of Defendant's Answer with New Matter indicates that "Defendant reserves the right to add additional New Matter based upon information received from upcoming discovery in this case." 3. Rule 1030(a) provides in part that, "a party may set forth as New Matter only other material facts which are not merely denials of the averments of the proceeding pleading." 42 Pa.R.C.P. 1030. 4. It is believed and therefore averred that Rule 1030 does not provide for a "reservation of rights" in New Matter to be amended following the conclusion of discovery. 5. It is believed and therefore averred that Defendant's unilateral reservation of the right to add additional New Matter significantly prejudices Plaintiff as there will not be a formal opportunity to provide a formal reply to dispute any facts which Defendant alleges, in the future, which impact the claim against him. WHEREFORE, it is respectfully prayed that this Honorable Court will strike paragraph 29 from Defendant's New Matter. II. Failure of Pleading to Conform to Law or Rule of Court and Insufficient Pleading,, Pursuant to 42 Pa.R.C.P. 1019 and 1028 6. Paragraphs 1 - 5 are hereinafter incorporated by reference. 7. Paragraph 28 states, "It is believed that Plaintiff may have been comparably negligent or assumed the risk of injury by operating her vehicle in a careless and negligent manner." 8. Defendant also sets forth what is in apparent defense in paragraph 30 of his New Matter. 9. Defendant states "Plaintiff's recovery, if any, made be diminished pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Act. 10. Defendant does not provide any reference to factual basis to support these averments or defenses. 11. Defendant's New Matter is devoid of sufficient factual support and enable him to claim that Plaintiff's claim should be barred by or diminished by the Pennsylvania Motor Vehicle Financial Responsibility Act. 12. Defendant's baldly asserted defenses in paragraph 28 and 30 is analogous to the situation that occurred in Donegal Mutual Insurance Company v Stroker, where the Plaintiff filed Preliminary Objections to Defendant's nine (9) paragraphs of its New Matter relating to affirmative defense. Donegal Mutual Insurance Company v Stroker, 2010 W.L. 5571389, 15 Pa.D. & C.Sth 245, Pa.Con.Pl. August 2, 2010 (2568 Civil 2010). 13. The Donal court granted Plaintiff's Preliminary Objections holding that: "In our case, Defendants failed to provide any facts that would corroborate the averments presented in their New Matter. [...] Defendants only make a blanket assertion that Plaintiff's claims may be barred without offering any reason why Defendant's believe this to be true. [...] This spaghetti `approach is unproductive."' Id. 14. In a matter before the Court of Common Pleas of Monroe County, where the Plaintiff's Preliminary Objections to paragraph 35 of Defendant's New Matter, which stated, "the accident in Plaintiffs injuries and damages, if any, were caused by the superseding, intervening acts of third person[sic] or entities other than Defendant." The court granted Plaintiff's Preliminary Objections holding that this paragraph was to insufficiently specific enough to permit Plaintiff to prepare an Answer or Trial." Lee v. Denner, 76 Pa.D. & C.4th. 181 (Monroe 2005). 15. "A pleading therefore must do more than simply give the adverse party fair notice of what his claim or defense and the grounds upon which it rests; it should instead, formulate the issue by fully summarizing the facts. Id. Emphasis added. In the case sub judice, Defendant's New Matter lacks any factual basis to support his defense that the Motor Vehicle Financial Responsibility Act applies whatsoever, thereby prejudicing Plaintiff's ability to provide an adequate Answer. 16. Rule 1019 requires that "the material facts of which a cause of action or defense is based shall be stated in concise and summary form." 42 Pa.R.C.P. ?1019(a). Emphasis added. 17. Defendant's barebones averments deny Plaintiff the right to know what Defendant intends to proof at trial and consequently denies Plaintiff the ability to adequately prepare. Respectfully Submitted, & KUTULAKIS, LLP DATE: JULY 13, 2011 Jaso P. Kt&akis, Esquire ID No. 80411 2 West High Street Carlisle, PA 17013 (717)249-0900 Attorney for Plaintiff AND NOW, this 13"' day of July, 2011, I, Shannon Freeman, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Plaintiffs Preliminary Objections to Defendant's Answer and New Matter to Plaintiff's Second Amended Complaint, upon the Defendant by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following. Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 Attorney for Defendant I Aannon Freema FAFILES\Ctients\3050 Donegal\3050.Current\3050.645\3050.645.pra3 Revised: 4/25/12 11: HAM AM , r HE PR0TI!0N0 t 2G 12 MAY I I PM f : 52- CU11BERLAND COUNT' " PENNSYLVANIA TERRY PEIPER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DALE E. KENDALL, Defendant NO. 2011-2158 CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended. Respectfully submitted, ABOM & KUTULAKIS By Jas n P. I 1 , 2 est High Street arlisle, PA 17013 717-243-0900 Dated: -511 O I I 0-? Attorneys for Plaintiff