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HomeMy WebLinkAbout11-4779 V-M = r-"F - a G!)? I mom -rt =C3 ANGINO & ROVNER, P.C. Richard A.Sadlock Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mai I : rsad lock@angino-rovner. com JUSTIN T. ABICHT, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. CIVIL ACTION - LAW No. i (- 'x/'779 Iv i lem SPENCER R. THOMAS, Defendant 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 Compiaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 N 9a.oo pn Arne e? 8so aq 0 46017 7 470596 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se persentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuds de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a , las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Used puede perder dinero o propiedad u otros derechos importantes para used. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 470596 ANGINO & ROVNER, P.C. Richard A. Sadlock Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mai 1: rsad lock@angino-rovner. com JUSTIN T. ABICHT, Plaintiff V. SPENCER R. THOMAS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Justin T. Abicht is an adult individual, citizen of the Commonwealth of Pennsylvania, who resides at 43 Regency Woods North, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Spencer R. Thomas, is an adult individual, who resides at 613 Silver Spring Road, Mechanicsburg, Cumberland County, PA 17050. 3. The facts and occurrences hereinafter related took place on or about January 31, 2011, at approximately 12:14 A.M. on Pa. Rte. 944 west, Silver Spring Township, Cumberland County, Pennsylvania. 4. At that time and place, Plaintiff Justin T. Abicht was a back seat passenger in a 2002 Lincoln LS automobile, owned and operated by Defendant Spencer R. Thomas. 5. At that time and place, Defendant Spencer R. Thomas drove his vehicle upon the highway in a mariner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 470596 6. At that time and place, Defendant Spencer R. Thomas operated his vehicle at a high rate of speed, and lost control of the 2002 Lincoln LS Auto. 7. At that time and place, Defendant Spencer R. Thomas swerved to the right, causing the 2002 Lincoln LS automobile to roll over several times, and to strike several trees before coming to rest. 8. The violent force of the collision forced Plaintiff Justin T. Abicht to be ejected from the Lincoln automobile. 9. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by Plaintiff Justin T. Abicht are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendant Spencer R. Thomas operated his vehicle as follows: a. failure to travel at a safe speed; b. failure to take reasonable evasive action to avoid the accident; C. failure to keep proper and adequate control over his vehicle; d. failure to drive his vehicle with due regard for the existing highway and traffic conditions of which he was, or should have been, aware; and e. driving his vehicle upon the highway in a manner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 10. As a result of Defendant's negligence, as herein before related, Plaintiff Justin T. Abicht has sustained injuries which include, but are not limited to, a fractured tooth, lumbar spine pain, right wrist pain, left hip pain, and a loss of consciousness. 470596 11. By reason of the aforesaid injuries sustained by Plaintiff Justin T. Abicht, he was forced to incur liability for medical treatment, medications and similar miscellaneous expenses in an effort to restore himself to health and claim is made therefor. 12. Because of the nature of his injuries, Plaintiff Justin Z'. Abicht, has been advised and, therefore, avers that he may be forced to incur similar expenses in the future, and claim is made therefor. 13. As a result of the aforementioned injuries, Plaintiff Justin T. Abicht has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment and claim is made therefor. 14. As a result of the aforesaid injuries, Plaintiff Justin T. Abicht has been and in the future will be subject to great humiliation and embarrassment, and has suffered disfigurement, and claim is made therefor. 15. Plaintiff Justin T. Abicht continues to be plagued by persistent pain and limitation and, therefore, avers that his injuries may be of a permanent nature, causing residual problems for the remainder of his lifetime, and claim is made therefor. 16. As a result of the aforementioned injuries, Plaintiff Justin T. Abicht has sustained work loss, loss of opportunity and a permanent diminution of his earning power and capacity, and claim is made therefor. WHEREFORE, Plaintiff, Justin T. Abicht demands judgment against Defendant Spencer R. Thomas in an amount in excess of Fifty Thousand ($50,000) Dollars exclusive of interest and 470596 costs and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. i . Sadlock, Esquire I.D. No. 47281 4503 N. Front Street Date Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 470596 VERIFICATION I, JUSTIN T. ABICHT, Plaintiff, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Witness 01'/// JUST T. ABICHT Dated: l Date: ?-' 470791 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ???t?igr D? ? Yrt?a 1!rt'f?y?d r ;,?;W r , I' Adl f 2011 jUN 14 PH 1: Justin T. Abicht vs. Case Number Spencer R. Thomas 2011-4779 SHERIFF'S RETURN OF SERVICE 06/14/2011 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Spencer R. Thomas, but was unable to locate him in his bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Spencer R. Thomas. Request for service at 613 Silver Spring Road, Mechanicsburg, Pennsylvania 17050 the Defendant was not found. The Defendant's Grandfather is the current resident of this address, and he advised Deputies Spencer R. Thomas does not reside at this address but he forwards his mail to this address. SHERIFF COST: $43.44 June 14, 2011 SO ANSWERS, 4NR AND ERSON, SHERIFF HONOTAR 2011 JUL 12 A X911: 15 ` UMBENLAND COUNTY PENNSYLVANIA ANGINO & ROVNER, P.C. Richard A. Sadlock Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail:rsadlock@angino-rovner.com JUSTIN T. ABICHT, Plaintiff V. SPENCER R. THOMAS, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 11-4779 CIVIL TERM JURY TRIAL DEMANDED PR A F.CIPF Please reinstate the Complaint in the above-captioned action. ANGINO & RO Richard A. Sadlock, Esquire PA I.D. No. 47281 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rsadlock@angino-rovner.com Counsel for Plaintiff 475178 V antis a 10 ? 8 a Ck ?u'i 101 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor 011,19 of cu+ill)"'Jr14 C;F_ __ T h FILED-OFFiCF HE PRCTHOMOT, ?,P`f 10! I JUL 20 PM 1: S,? CUMBERLAND COUNTY PENNSYLVANIA Justin T. Abicht Case Number vs. Spencer R. Thomas 2011-4779 SHERIFF'S RETURN OF SERVICE 07/14/2011 06:50 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on July 14, 2011 at 1850 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Spencer R. Thomas, by making known unto Todd Boyer, Father of Defendant at 6843 Wertzville Road, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. T1116 BLACK, DEPUTY SHERIFF COST: $43.44 July 18, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF . .,9w1':,"IdIW SnPI ff, lCpC,1, ?f. Inc. F,11 CU,"l E i + is i t t?F 'etc ??, Ie,J i?trr:.r ANGINO & ROVNER, P.C. Richard A. Sadlock Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mai Lrsadlockgangino-rovner.com JUSTIN T. ABICHT, Plaintiff V. SPENCER R. THOMAS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 11-4779 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW comes Plaintiff Justin Abicht, by and through his attorneys, Angino & Rovner, P.C., and hereby replies to the New Matter of Defendant Spencer R. Thomas as follows: 17. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff did not knowingly expose himself to an obvious risk and did not cause his own injuries or damages. All of Plaintiffs injuries and damages were caused by the carelessness, wantonness, recklessness and negligence of the instant Defendant and are recoverable in the instant action. 482540 18. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, all of Plaintiffs injuries and damages are recoverable in the instant action. The Pennsylvania Motor Vehicle Financial Responsibility Law in no way limits the damages Plaintiff may recover herein. 19. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant's averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of Plaintiffs injuries and damages were caused solely and directly as a result of the negligence, carelessness, wantonness and recklessness of the instant Defendant. 20. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent that the averment may be deemed factual, it is hereby specifically denied. By way of amplification, where appropriate, Plaintiff mitigated his damages. 21. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent that the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant was negligent, and his negligence was a factual cause of the harm suffered by Plaintiff. 22. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, there are no defenses available to the Defendant in either Pa.R.C.P. 1030 or Pa.R.C.P. 1032. 23. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By 482540 way of amplification, as previously indicated herein, Plaintiff was not negligent in any way. Therefore, the Pennsylvania Comparative Negligence Act does not apply to the instant action. Further, all of Plaintiffs injuries and damages are recoverable in the instant action and are in no way reduced. 24. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, there was no sudden emergency involved in the instant action. All of Plaintiffs injuries and damages were caused by the carelessness, wantonness, recklessness and negligence of the instant Defendant and are recoverable herein. 25. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff did not lose, alter, or destroy any evidence applicable to the instant action. Plaintiff s claims are in no way barred or reduced. 26. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant owed a duty to Plaintiff and breached that duty herein. 27. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent that the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff did sustain a serious injury as defined under the Pennsylvania Motor Vehicle Financial Responsibility Law. Further, Plaintiffs policy provides for the full tort option. A copy of the declaration page applicable to Plaintiff is attached hereto as Exhibit A. 28. See paragraph 27 herein. 482540 29. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent that the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff's claim and the instant action were filed within the applicable statute of limitations. 30. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiffs Complaint does state a cause of action upon which relief may be granted. 31. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff did not assume the risk of his injuries. Further, as previously stated herein, Plaintiff was not negligent or careless. All of Plaintiffs injuries and damages are recoverable in the instant action. 32. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant's averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of Plaintiffs injuries and damages were caused solely and directly as a result of the negligence, carelessness, wantonness and recklessness of the instant Defendant. 33. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, all of Plaintiff's injuries and damages were caused by the instant Defendant and are recoverable herein. 482540 34. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the Doctrines of Res Judicata, Waiver, or Estoppel do not apply to the instant action. 35. See paragraph 21 herein. WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss Defendant's New Matter enter judgment in favor of Plaintiff and against Defendant. ANGINO & RfliEEZ, P.C. d dlock, Esquire A o. 47281 ITU-3 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rsadlock@angino-rovner.com Counsel for Plaintiff 482540 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF DAUPHIN SS. AFFIDAVIT I, RICHARD A. SADLOCK, ESQUIRE, being duly sworn according to law, deposes and states that I am counsel for Plaintiff, that I am authorized to make this Affidavit on behalf of said Plaintiff, and the facts set forth in the foregoing Reply to New Matter, are best of my knowledge, information, and belief. Sworn to and subscribed before me this W11 day of ?tober 92011. Notary Public My Commission Expires: n Ecorrect to the COMMONWEALTH OF PENNSYLVANI=Rotar NNIDTA ANGELA DAWN HO RIAL Susquehanna TMy Commissio 492540 TRAVELERS AUTOMOBILE POLICY CONTINUATION DECLARATIONS 1. Named Insured TODD W ABICHT & RENEE ANITA MCMAHON 43 REGENCY WOODS N CARLISLE PA 170159063 Your Agency's Name and Address AAA INSURANCE AGENCY 2301 PAXTON CHURCH ROAD HARRISBURG, PA 17110 Your Policy Number : 941608435 101 1 Your Account Number: 941608435 For Policy Service Call 1-800-842-5075 For Claim Service Call 1-800-CLAIM-33 2. Your Total Premium for the Policy Period is $526.00. The policy period is from January 2, 2011 to July 2, 2011. 3. Your Vehicles Identification Numbers 1 1994 PLYM GRAND VOYA 1P4GH44R5RX234724 2 2005 DODGE NEON SXT 1B3ES56CD5D118503 4. Coverages, Limits of Liability and Premiums Insurance is provided only where a premium is shown for the coverage. *IF COLLISION COVERAGE IS PROVIDED UNDER THIS POLICY, COVERAGE EXTENDS TO VEHICLES WHICH YOU RENT FOR 30 DAYS UNDER A RENTAL CAR COVERAGE AGREEMENT. PLEASE REMEMBER THAT COLLISION COVERAGE DOES NOT PAY FOR LOSS OF USE. PLEASE CONTACT YOUR TRAVELERS AGENT OR REPRESENTATIVE IF YOU HAVE QUESTIONS. IF YOU DO NOT CARRY COLLISION INSURANCE, THIS POLICY DOES NOT PAY FOR DAMAGE TO RENTAL VEHICLES.* A - Bodily Injury $100,000 each person $300,000 each accident B - Property Damage $100,000 each accident D7 - Uninsured Motorists (Bodily Injury) Non-Stacked $100,000 each person $300,000 each accident See Endorsement A37043 D9 - Underinsured Motorists (Bodily Injury) Non-Stacked $100,000 each person $300,000 each accident See Endorsement A37043 1 2 94 PLYM 05 DODGE GRAND VOYA NEON SXT $ 48 $ 56 48 57 34 34 8 8 Continued on next page Page 1 of 4 PL-7782 5-94 670/OM6553 006847/00930 F3116855 7254 12/07/10 4. Coverages, Limits of Liability and Premiums (continued) 94 PLYM 05 DODGE GRAND VOYA NEON SXT E - collision Actual Cash Value less - 121 $500 deductible F - Comprehensive (Other than Collision) Actual Cash Value less $100 deductible G - Extended Transportation Expense $30 per day/$900 maximum QB - First Party Benefits Coverage Full Tort Option See Endorsement A37021 R - Added First Party Benefits A4-Increased Medical Expenses $10,000 B5-Income Loss Maximum Amount/Monthly Amount $5,000/$1,000 C6-Funeral Expenses $1,500 D6-Accidental Death $5,000 See Endorsement A37021 Subtotals for your vehicles: Total Premium for This Policy: $526 9 33 7 7 15 17 12 12 $181 $345 5. Information Used to Rate Your Policy Discounts Included in Your Premium Anti Theft Device Passive Restraint Multiple Cars Careful Driver 05 DODGE NEON SXT 94 PLYM 05 DODGE GRAND VOYA NEON SXT Continued on next page Page 2 of 4 PL-7782 5-84 670/OM6553 CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER upon all counsel of record via postage prepaid first class United States mail addressed as follows: Gary B. Cutler, Esquire OFFIT KURMAN Ten Penn Center 1801 Market Street, Ste. 2300 Philadelphia, PA 19103 Michelle M. Milojevich Dated: 10/20/11 492540 .f JUSTIN T. ABICHT, Plaintiff V. SPENCER R. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-4779 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS TO DISCOVERY ORDER OF COURT AND NOW, this 31St day of January, 2012, upon consideration of Plaintiff's Motion To Compel Answers to Discovery, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. DEFENDANT IS ordered to file an answer to the Rule To Show Cause at least five days before a telephone conference scheduled for Tuesday, February 28, 2012, at 9:00 a.m. BY THE COURT, Christylee L" Peck, J. Richard A. Sadlock, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff >? . C: . Gary B. Cutler, Esq. Ten Penn Center 1801 Market Street Suite 2300 Philadelphia, PA 19103 Attorney for Defendant :rc?? r c° ?c? ,'P 113???? ?? J JUSTIN T. ABICHT, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SPENCER R. THOMAS, Defendant 11-4779 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of February, 2012, upon consideration of Plaintiff's Motion to Compel Answers to Discovery, and after a rule was issued upon the Defendant to show cause why the relief requested should not be granted, and after a telephone conference with Richard A. Sadlock, Esquire, representing the Plaintiff, and Gary B. Cutler, Esquire, representing the Defendant having participated in the telephone conference with this Court, and the Defendant through his counsel having indicated that he needs more time to answer the discovery requests because the Defendant has not been in communication with defense counsel, the Plaintiff's motion to compel answers to discovery is hereby granted. The Defendant is directed to file an answer to the Plaintiff's interrogatories and request for production of documents within 45 days of the date of this order. If the Defendant does not comply with this order, the Plaintiff may file a motion for sanctions, and this Court will entertain entering sanctions at that time. By the Court, M M rn--- ;M M ?.j CD ?, l c1 "0 Christyle)0' L. Peck, J. N -:? ? Richard A. Sadlock, Esquire 4503 N. Front Street Harrisburg, PA 17110-1708 For the Plaintiff ,/Gary B. Cutler, Esquire Offit Kurman Ten Penn Center 1801 Market Street Ste 2300 Philadelphia, PA 19103 For the Defendant pcb ("vr,c°5 Mu,/f G/ 3??// Ot" a-'IED- OFFICE J THE PROTHONOTARY 2012 JUL -2 PM 1: 23 C A fK ND COUNTY WSYLVANIA ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney 1D# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 PHONE: (717) 238-6791 FAX: (717) 238-5610 Attorney for Plaintiff: E-mail: rsadlockna angino-rovner.com JUSTIN T. ABICHT, V. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SPENCER R. THOMAS, Defendant NO. 11-4779 CIVIL TERM JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Richard A. Sadlock, Esquire, counsel for the Plaintiff in the above action (or actions), respectfully represents that: The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $50,000. The counterclaim of the Defendant in the action is $0. 318881 0 %g9'?"56?d 0 #k ct-4 V 12#0.7 The following attorneys are interested in the case(s) as counsel or otherwise disqualified to sit as arbitrators: Richard A. Sadlock, Esquire, 4503 N. Front Street, Harrisburg, PA 17110 Gary B. Cutler, Esquire, Ten Penn Center, 1801 Market Street, Ste. 2300, Philadelphia, PA 19103 WHEREFORE, your Petitioner prays Your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. LU..kO X7281 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff C. 318881 Respectfully submitted, CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PETITION FOR APPOINTMENT OF ARBITRATORS upon all counsel of record via postage prepaid first class United States mail addressed as follows: Gary B. Cutler, Esquire OFFIT KURMAN Ten Penn Center 1801 ?Market Street, Ste. 2300 Philadelphia, PA 19103 (267) 338-1308 .411)" 1110:2ii I MJ. Michelle M. Milojevich Dated: 6/29/12 318881 OFFIT KURMAN By: Gary B. Cutler, Esquire Identification Number: 30924 1801 Market Street, 23rd Floor Philadelphia, PA 19103 267-338-1300 267-338-1335 (Facsimile) 0 +-- i f .:r a a tw PRO HON Ci TtiFc e20 i' 2 JUL 16 P14 3: 21? CUMBERLAND COUNTY PENNSYLVANIA JUSTIN T. ABICHT Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. SPENCER R. THOMAS Defendant CIVIL ACTION - LAW NO. 11-4779 ANSWER OF DEFENDANT, SPENCER R. THOMAS 'TO PLAINTIFF'S PETITION FOR APPOINTMENT OF ARBITRATORS WITH COUNTER-REOUEST FOR DEFERRAL OF THIS MATTER Defendant, Spencer R. Thomas, requests that this Court strike the Praecipe for Appointment of Arbitrators submitted by plaintiff. Defendant avers that the appointment of arbitrators is untimely, would result in unnecessary litigation, could result in contradictory res and could result in improper distribution of proceeds the policy coverage available to defendai in relation to injuries arising out of an automobile accident occurring, on January 31, 2011. In order to avoid these results, defendant requests that the Petition be denied and the request for deferral by defendant be granted. This incident was a single motor vehicle accident involving a vehicle operated by defendant, Thomas, in which there were three passengers. These three passengers; Ryan Dunton, Andrew McCauslin, and Justin Abicht suffered varying levels of injury. McCauslin the most seriously injured, having undergone eight surgeries to date. Dunton also suffered significant injury, resulting in significant disability. Abicht was the most fortunate, resulting an assertion of soft tissue injuries resulting in very brief medical care. Accordingly, if necessary, McCauslin and Dunton will be filing Complaints, both of which actions will be listed as major cases. Abicht's most recent demand is $4,500. The insurance coverage available to defendant is through an insurance policy issued by Safe Auto Insurance Company with policy limits of $15,000/$30,000. Therefore, the amount lin controversy greatly exceeds the policy limits. As to the potential recovery against my client personally, he owns nothing, is incarcerated for his actions on the night of this incident and, f r I all intents and purposes is judgment proof. Counsel for Abicht is attempting to expedite this matter through arbitration and obtain ?a recovery prematurely because of the very limited pot from which a recovery can be funded. However, to allow counsel for Abicht: to succeed at this effort would. act to the detriment of thd. other claimants whose injuries are unquestionably and significantly more serious than those suffered by Abicht. That is not to say, that Abicht is not entitled to a recovery of an appropriat] portion of the proceeds of the policy, but that is something which should be determined throug either a joint hearing or through interpleader of the proceeds of the policy into the Court for a determination to be made as to the fair apportionment of the proceeds. Suit has not yet been filed by either McCauslin or Dunton, but notice of the claims has been received. In fact, the undersigned is aware of an attempt by the insurance carrier for my client to settle the claims fairly, with proportions of the distribution of proceeds commensurat( with the injuries suffered. With the $15,000 limit per person, a $15,000 offer has been made t McCauslin, a $14,000 offer to Dunton, and a $1,000 offer to Abicht. Of course, all counsel w notified of the fact that even if one or two of the amounts were acceptable, the completion of t settlement was contingent upon all three agreeing. Counsel for McCauslin has not yet responded but, given that the money attributed to McCauslin was the maximum available, it is anticipated that the reaction will be positive. The offer to Dunton was accepted, The offer to Abicht was rejected. As is stated in the initial paragraph in this memorandum, to grant the Petition would result in unnecessary litigation. This arbitration, if it is scheduled and held, no matter what th decision, be it $1,000 or $50,000, would require that defendant take an appeal of the award of panel. In order to preserve my client's rights, no payment of proceeds of the policy to Abicht could be made since to do so without a determination as to the proceeds to go to McCauslin a Dunton would detrimentally affect in, client's rights. Therefore, because the purpose of arbitration is to obtain a fair and just result in cases of lesser value and, if possible to avoid the bringing of these smaller cases to trial, these goals cannot be reached and the arbitration cann( result in a finding acceptable to the defendant. In addition, if this case was permitted to go to arbitration and to trial even before the other cases are filed (with the Statute of Limitations not to expire for another 6 months), a rest in this matter may be at odds with a decision in either or both of the other two cases. Inconsistent results should be avoided where possible. Also, if the result of this arbitration and/or trial, ends with a disproportionately high percentage of the proceeds of the policy going to Abicht, the more seriously injured passenger suffer greatly by a diminution of the amount they would receive. One way to avoid the aforementioned potential for these inequities would be to defer this matter pending the filing and consolidation of the three claims once all have been filed. Another similarly effective method would be the filing of an interpleader to allow for the proceeds of the policy of insurance into the Court. However, this is a burden upon This Court that can be avoided by merely deferring this matter pending the filing of the other claims and exercising patience to allow this matter to become ripe for mutual decision and to allow a fair and equita lc distribution of the proceeds of the policy. Accordingly, defendant, Spencer G. Thomas requests that this Honorable Court deny Petition to Appoint Arbitrators and, in the alternative, enter an Order deferring this matter further Order of this Court based upon the activity in relation to the claims of McCauslin and Dunton. O By: for Defendants UIRE Date: July 11, 2012 VERIFICATION I, GARY B. CUTLER, ESQUIRE states that he is attorney for the Defendants in above captioned action; that he takes this Verification on the Defendants behalf; that he is acquair?tec with the facts set forth in the foregoing pleading; that the same are true to the best of his knowledg, e, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. OFFI U N, P By: _ Gary tler, ESQUIRE Attorney .D. 30924 CERTIFICATE OF SERVICE 1, Gary B. Cutler Esquire, hereby state that I caused to be served on the 1 I`" day of July, 2012, via: Regular Mail, a true and correct copy of the following document(s) addressed to the following listed below: Document(s): Defendant's Answer to Plaintiff's Petition for Appointment of Arbitrators with Request for Deferral of this Matter. Persons : Richard A. Sadlock, Esquire Angino-Rovner 4503 North Front Street Harrisburg, PA 17110 , P. By: / G' "-/"" V Gafy B. tier, ESQUIRE JUSTIN T. ABICHT, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 11-4779 CIVIL SPENCER R. THOMAS, Defendant ORDER AND NOW, this Z y' day of July, 2012, the appointment of James Comitale, Esquire, as Chairman of the Board of Arbitrators in the above-captioned case is VACATED. Daniel Deardorff, Esquire, is appointed in his place. BY THE COURT, i . Hess, P. J. Daniel Deardorff, Esquire Chairman Court Administrator ? - rnm rn? c_ :rlm ' LE7 E`J `^ ?7 r 2`0 12 JUL 25 Pik 2: r.0, l?UMBERLAND t;OUN t'? PENNSYLVANIA ANGINO & ROVNER, P.C. Richard A.Sadlock Attorney ID4 : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 PAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail:rsadlock(aDangino-rovner.com JUSTIN T. ABICHT. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA N'. SPENCER R. THOMAS, Defendant CIVIL ACTION - LAW NO. 11-4779 CIVIL TERM JURY TRIAL DEMANDED ORDER AND NOW, this Atk, day of , 2012, it is hereby Ordered and Decreed that Defendant's Motion for Deferral of Arbitration is denied. BY THE COURT: DISTRIBUTION I.' Richard Sadlock, Esquire, 4503 North Front Street, Harrisburg, PA 17110, (717)238-6791 FAX (717)238-5610, rsadlock@angino-rovner.com /Gary B. Cutler, Esquire, Ten Penn Center, 1801 Market Street, Ste. 2300, Philadelphia, PA 19103, (267) 338-1308; GCutler@offitkurman.com egP(es ", le-ty 7/,;s A- 503488 W-6. OFFIT KURMAN, P.A. By: Gary B. Cutler, Esquire Attorney I.D. No. 30924 Ten Penn Center 1801 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (267) 338-1300 gcutler@offitkurman.com Attorney for Defendant, Spencer Thomas ~'~~ ~;~c FFtuil~#(~~OrA~'f ~~~~+~~t~~~;~ar~r~ cou~'rY ~~'~:~'"iSYLVANIA ANDREW MCCAUSLIN COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff v. NO. 12-5041 SPENCER THOMAS Defendant JUSTIN T. ABICHT COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff v. NO. 11-4779 SPENCER R. THOMAS Defendant MOTION TO CONSOLIDATE Defendant Spencer R. Thomas ("Thomas") by and through his undersigned counsel, Offit Kurman, hereby requests that this Honorable Court consolidate the above-captioned cases and, in support thereof, avers as follows: 1. The above-captioned cases arise out of the same motor vehicle accident (the "Accident") which occurred on January 31, 2011. 2. Justin Abicht ("Abicht") filed an action to recover for injuries he asserts that he suffered as a result of the negligence of Thomas as a result of the Accident. Said action was filed under the caption of Justin T. Abicht v. Spencer R. Thomas, Cumberland County Court of Common Pleas, No. 11-4779 (the "Abicht Matter"). See Complaint of Justin T. Abicht attached hereto as Exhibit "A." 3. Andrew McCauslin ("McCauslin") has filed a Writ of Summons against Spencer Thomas also in the Cumberland County Court of Common Pleas under Civil Action Number 12- 5401. Although this was filed only by Writ of Summons to date, the communications between counsel and logic confirm that the basis for this action is the claim resulting from the accident also referenced in the Abicht v. Thomas Complaint. See Writ of Summons, attached hereto as Exhibit "B." 4. The Abicht Matter is set for arbitration on October 25, 2012. 5. Based upon conversations with Clark DeVere, Esquire, counsel for McCauslin in the McCauslin Matter, it is clear that the McCauslin Matter is based on the same transaction and occurrence as the Abicht Matter, specifically, the Accident and it is anticipated that, in his reply to this Motion, Mr. DeVere will confirm that the Writ was filed for injuries suffered by his client in the same accident as described in Abicht's Complaint. 6. Pursuant to Rule 213 of the Pennsylvania Rules of Civil Procedure, "actions .. . which involve common questions of law or fact or which may arise from the same transaction or occurrence, the court ...may order the actions consolidated, and may make orders that avoid unnecessary costs or delay." Pa.R.C.P. § 213. 7. The above actions involve common questions of law and fact and arise from the same transaction or occurrence. 8. The consolidation of these matters will avoid any potential prejudice due to conflicting judgments. 9. The consolidation of these two matters will avoid any potential for conflict between the three potential claimants against Spencer Thomas to the rights to recover from the policy of insurance covering Mr. Thomas. 10. It is requested that this Court grant consolidation of these two matters, with the McCauslin Matter, No. 12-5401 being designated as the lead case, thereby removing the Abicht Matter from the arbitration rolls, and with the dates to govern these consolidated cases to be assigned by the Court. WHEREFORE, Defendant Spencer R. Thomas, hereby requests that this Honorable Court enter the proposed order consolidating these matters. Respectfully submitted, OFFIT KURMAN, P.A. By: ,~ Gary B. tier, Esquire Attorney I.D. No. 30924 Ten Penn Center 1801 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (267) 338-1300 gcutler@offitkurman. com Attorneys for Spencer Thomas 4851-4773-4544, v. 1 ANGINO & ROVNER, P.C. Richard A. Sadlock Attorney ID#1 : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (7I7) 238-5610 Attorneys for Plaintiff(s) E-mail: rsad lock@angino-rovncr.com JUSTIN T. ABICHT, Plaintiff v. SPENCER R. THOMAS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION -LAW No. II- y'1'yy Civ~ 1 Terw 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 Compiaint 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. Yau are warted that if you fail to do so the case may proceed without you and judgment may be entered against you by the Court without fiu-ther 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 BELODJ. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNON' AFFORD Tb HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (71'~ 249-3166 470596 TRt3E CQRY FROM RECORD fn Testimony whereof, I here unto set my hand and the seal of said at Carlisle, Pa. This _~~y of (~~_, 20 ~_ ~~~~~ y~~ P"C l~ . ~ I..C.LV / - t 1 ~ AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se persentan mss adelante en las siguientes paginas, debe tomar accibn dentro de los proximos veinte (20) dias despues de la notificacibn de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a , las demandas presentadas aquf en contra suya. Se le advierte de que si usted faIla de tomar accipn como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en la demands o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mss aviso adicional. Used puede perder dinero o propiedad u otros derechos importantes pars used. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USED NO ~PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717} 249-3166 470596 ANGINO & ROVNER, P.C. Richazd A. Sadlock Attorncy ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-b791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mai l:rsadlock~angino-rovner. com JUSTIN T. ABICHT, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. SPENCER R. THOMAS, Defendant CIVIL ACTION -LAW NO. JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Justin T. Abicht is an adult individual, citizen of the Commonwealth of Pennsylvania, who resides at 43 Regency Woods North, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Spencer R. Thomas, is an adult individual, who resides at 613 Silver Spring Road, Mechanicsburg, Cumberland County, PA 17050. 3. The facts and occurrences hereinafter related took place on or about January 31, 2011, at approximately 12:14 A.M. on Pa. Rte. 944 west, Silver Spring Township, Cumberland County, Pennsylvania. 4. At that time and place, Plaintiff Justin T. Abicht was a back seat passenger in a 2002 Lincoln LS automobile, owned and operated by Defendant Spencer R. Thomas. 5. At that time and place, Defendant Spencer R. Thomas drove his vehicle upon the highway in a manner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 470596 6. At that time and place, Defendant Spencer R. Thomas operated his vehicle at a high rate of speed, and lost control of the 2002 Lincoln LS Auto. 7. At that time and place, Defendant Spencer R. Thomas swerved to the right, causing the 2002 Lincoln LS automobile to roll over several times, and to strike several trees before coming to rest. 8. The violent force of the collision forced Plaintiff Justin T. Abicht to be ejected from the Lincoln automobile. 9. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by Plaintiff Justin T. Abicht are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendant Spencer R. Thomas operated his vehicle as follows: a. failure to travel at a safe speed; b. failure to take reasonable evasive action to avoid the accident; c. failure to keep proper and adequate control over his vehicle; d. failure to drive his vehicle with due regard for the existing highway and traffic conditions of which he was, or should have been, aware; and e.. driving his vehicle upon the highway in a manner endangering persons and property and in a reckless manner with cazeless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 10. As a result of Defendant's negligence, as herein before related, Plaintiff Justin T. Abicht has sustained injuries which include, but are not limited to, a fractured tooth, lumbar spine pain, right wrist pain, left hip pain, and a loss of consciousness. 470596 11. By reason of the aforesaid injuries sustained by Plaintiff Justin T. Abicht, he was forced to incur liability for medical treatment, medications and similar miscellaneous expenses in an effort to restore himself to health and claim is made therefor. 12. Because of the nature of his injuries, Plaintiff Justin T. Abicht, has been advised and, therefore, avers that he may be forced to incur similar expenses in the future, and claim is made therefor. 13. As a result of the aforementioned injuries, Plaintiff Justin T. Abicht has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment and claim is made therefor. 14. As a result of the aforesaid injuries, Plaintiff Justin T. Abicht has been and in the future will be subject to great humiliation and embarrassment, and has suffered disfigurement, and claim is made therefor. 15. Plaintiff Justin T. Abicht continues to be plagued by persistent pain and limitation and, therefore, avers that his injuries may be of a permanent nature, causing residual problems for the remainder of his lifetime, and claim is made therefor. 16. As a result of the aforementioned injuries, Plaintiff Justin T. Abicht has sustained work loss, loss of opportunity and a permanent diminution of his earning power and capacity, and claim is made therefor. WHEREFORE, Plaintiff, Justin T. Abicht demands judgment against Defendant Spencer R Thomas in an amount in excess of Fifty Thousand ($50,000) Dollars exclusive of interest and 470596 costs and i_n excess of any jurisdictional amount requiring compulsory arbitration. Date: I i ~ /~ Respectfully submitted, ANGINO & ROVNER, P.C. Paz . Sadlock, Esquire I.D. No. 47281 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 470596 VERIFICATION I, JUSTIN T. ABICHT, Plaintiff, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Witness JUS T. ABICHT Dated: ~ ~ I i ~~ Date: ~-'~o~. ~ ~, f 1 j ~ ~ , 470791 ..~ `U-C~PICc IN THE COURT OF COMMON PLEAS .~',= ~-;~'n~ i HONOTAE'c~i CUMBERLAND COUNTY, PENNSYLVANIA /'~ - 2012 AUG 14 PP4 I ~ 00 NO. I o2 - 56~J ~`~~ ~ CU1'i~:ERLAND COUNTY CIVIL ACTION -LAW o~NNSYLYANIA ANDREW MCCAUSLIN SPENCER THOMAS 110 Regency Woods North 7 N. Locust Point Road Carlisle, PA 17015 Mechanicsburg, PA 17055 -or- 6843 Wentzville Road Enola, PA 17025 Plaintiff(s)& Defendant(s) Address(es) Address(es) IN EXCESS OF ARBITRATION LIMITS JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons against the Defendant, Spencer Thomas. The Writ of Summons should be issued and returned to the undersigned, attorneys for the Plaintiff, for service. Date: /~i.c~r~ ! 3 , 2012 -~. 501438-1 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Clark DeVere~squire I.D. No. 68768 Zachary D. Campbell, Esquire I.D. No. 93177 P.O. Box 5300 Harrisburg, PA 17110-0300 (717)238-8187 Attorneys for Plaintiff ~,,~~1o3.~sPd °µ`t ~~ ~~~ ~.~, a -~q.,~oS METZGER, WICKERSHAM, P.C. By: Clark DeVere, Esquire Attorney I.D. No. 68768 Zachary D. Campbell, Esquire Attorney I.D. No. 93177 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Plaintiff -- ANDREW MCCAUSLIN, Plaintiff vs. SPENCER THOMAS, Defendant TO: Spencer Thomas 7 N. Locust Point Road Mechanicsburg, PA 17055 -or- 6843 Wertzville Road Enola, PA 17025 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. !a- 5p~(1 Ct~c CIVIL ACTION -LAW IN EXCESS OF ARBITRATION LIMITS JURY TRIAL DEMANDED WRIT OF SUMMONS You are hereby notified that Plaintiff, Andrew McCauslin, has commenced an action against you. Date: ~ 1 , 2012 i Prothonotary 501438-I OFFIT KURMAN, P.A. By: Gary B. Cutler, Esquire Attorney I.D. No. 30924 Ten Penn Center 1801 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (267) 338-1300 gcutler@offitkurman. com Attorney for Defendant, Spencer Thomas ANDREW MCCAUSLIN Plaintiff v. SPENCER THOMAS Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 12-5041 JUSTIN T. ABICHT Plaintiff v. SPENCER R. THOMAS Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 11-4779 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO CONSOLIDATE Defendant Spencer R. Thomas ("Thomas") by and through his undersigned counsel, Offit Kurman, hereby submits this Memorandum of Law in Support of his Motion to Consolidate the two above-captioned cases. I. FACTS The above-captioned matters arise out of the same January 31, 2011 motor vehicle accident (the "Accident"). The Accident involved one vehicle containing four occupants. Thomas was the driver and Justin T. Abicht ("Abicht"), Andrew McCauslin ("McCauslin") and Ryan Denton ("Denton") were passengers. Abicht filed an action to recover for injuries he asserts that he suffered as a result of the negligence of Thomas as a result of the Accident. Said action was filed under the caption of Justin T. Abicht v. Spencer R. Thomas, Cumberland County Court of Common Pleas, No. 11-4779 (the "Abicht Matter"). See Complaint attached hereto as Exhibit "A." McCauslin also asserts that he suffered injuries as a result of the Accident and brought suit against Thomas. This action was filed by Writ of Summons under the caption of Andrew McCauslin v. Spencer Thomas, Cumberland County Court of Common Pleas, No. 12- 5401 (the "McCauslin Matter"). See Writ of Summons attached hereto as Exhibit "B." The Abicht Matter is set for arbitration on October 25, 2012. In order to protect properly the interests of Spencer Thomas, if this arbitration proceeds as scheduled, it will mandate no matter what the result that an appeal from that arbitration be taken. The McCauslin Matter has just been filed and only a Writ of Summons has been issued. Based upon conversations with Clark DeVere, Esquire, counsel for McCauslin in the McCauslin Matter, it is clear that the McCauslin Matter is based on the same transaction and occurrence as the Abicht Matter, specifically, the Accident. In addition, it is anticipated that in his reply to this Motion, counsel for McCauslin will confirm that the action begun by Writ arises out of the same occurrence as described in the Abicht Complaint II. LAW The Pennsylvania Rules of Civil Procedure have anticipated this exact situation. See Pennsylvania Rule of Civil Procedure 213(a). This Rule states: Actions ...which involve a common question of law or fact or which may arise from the same transaction or occurrence, the court ...may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. Pa.R.C.P. 213(a). The ordering of a joint trial or hearing or the consolidation of actions should be sought by counsel whenever loss of time, costs and expense may be reduced by the elimination of duplication of effort in the sepazate actions. Goodrich-Amram 2b, 2d 213(a):1. Avoiding unnecessary delay, expenses, and duplication of effort is a laudable objective of Rule 213(a) which is beneficial to both the court and to the litigants in an action. Goodrich-Amram 2d, Section 213(a):2. The decision to consolidate actions rests within the discretion of the trial court. Balla v. Slavek, 381 Pa. 85, 112 A.2d 156 (1955); see also, Hamilton v. Gallo, 233 Pa.Super. 476, 334 A.2d 692 (1975). However, in a proper case, the court should consolidate separate actions to avoid multiplicity of trials or hearings and to reduce the expenses to the parties. Id. In Acquaviva v. Hartman, 203 Super.Ct. 505, 201 A.2d 239 (1964), there was a collision between an automobile operated by Betty Louise Acquaviva and another operated by George J. Hartman. Two separate actions were proceeding in the courts. The court consolidated the actions for trial. The purpose of combining the trials was twofold: (a) to prevent inconsistent verdicts, and (2) to eliminate trial delays and speed litigation. Acquaviva, 201 A.2d at 242; citin , Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625 (1960). In the case at baz, both actions arise from the same motor vehicle accident. Both actions involve common questions of law and fact that arise from the same transaction of occurrence. Consolidation of the above actions would avoid inconsistent verdicts, unnecessary delay, expenses and time. The consolidation cleazly would avoid significant and unnecessary costs as referenced above through the unnecessary prepazation for, attendance at and, because it appears that a decision against Thomas on liability appeazs to be a fait accompli, required appeal of any decision made by the panel. These unnecessary costs can be avoided by consolidation. All three claims arise out of the presence in one vehicle in a one vehicle accident. If any case ever screamed for consolidation, this is that case. III. CONCLUSION Defendant Spencer R. Thomas respectfully requests that this Honorable Court consolidate the above actions for the purposes of discovery and trial. Respectfully submitted, By: ary B. Cutler, Esquire Attorneys for Defendant Spencer R. Thomas 4837-2298-1904, v. 1 ANDREW MCCAUSLIN Plaintiff v. SPENCER THOMAS Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 12-5041 JUSTIN T. ABICHT COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff v• NO. 11-4779 SPENCER R. THOMAS Defendant CERTIFICATE OF SERVICE I, Gary B. Cutler Esquire, hereby state that on ~ y .2~? 12 I caused the following documents to be served via: First Class Mail, postage prepaid to the following: Document(s): Motion to Consolidate, Memorandum of Law and Proposed Order regarding the above captioned matters. Persons : Clark DeVere, Esquire Richard A. Sadlock, Esquire Zachary D. Campbell, Esquire Angino Royner Metzger, Wickersham, Knauss & Erb, P.C. 4503 North Front Street P.O. Box 5300 Harrisburg, Pennsylvania 17110 Harrisburg, Pennsylvania 17110-0300 Attorney for Justin T. Abicht Attorneys for Andrew McCauslin OFFIT J[i:URMAN, P.A. By: ary B Cutler, Esquire Attorney I.D. No. 30924 Ten Penn Center 1801 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (267) 338-1300 (267) 338-1335 (fax) gcutler@offitkurman.com ANDREW McCAt1SLIN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW SPENCER THOMAS, Defendant NO. 12-5041 CIVIL TERM JUSTIN T. ABICHrC, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYI ,VANIA v CIVIL ACTION -LAW SPENCER THOMAS, ~~ Defendant NO. 11-4779 CIVIL TERM IN RE: MOTION AND AMENDED MOTION TO CONSOLIDA"TE ORDER OF COURT AND NOW, this 31st day o~C October, 2012, upon consideration of the Motion and Amended Motion To Consolidate, and upon Plaintiff Justin T. Abicht's objection thereto, the motion to consolidate is hereby denied. 13Y THE COURT. „~ r i"Z ~ C.~ -.- L~ Christyle~'L. Peck, J. ~'~~ , z~ ~/ Clark DeVere, Esq. ~~ r.~ _ ~' ~ ~, Zachary D. Campbell, Esq. ~- c. ~~ ~ ~-•~ _~ -- ~ r' P O Box X300 _ ...~ f~ ; . . Harrisburg, PA 17110-0300 Attorneys for Andrew McCauslin i ~ Richard A. Sadlock, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Justin T. Abicht ~ Gary B. Cutler, Esq. Ten Penn Center 1801. Market Street, Suite 2300 Philadelphia, PA 19103 Attorney for Spencer Thomas rc ~~~ .JUSTIN T. ABICHT - ----.--- Plaintiff SPENCER R, THOMAS In T]1e Court of Common Pleas of C~arnberland County, PennsvlvaniaNo.,11 _ 4779 Defendan+. Civil 1~Cr.iori - Z,aw. Oath ~~~ e do solern~zl~` s~~~ear (or affirm) that we will support, obey and defend the Constitution of the United States and they Constitution of this Cornmonw~a~,and chat we will discharge the dutz s ~~t our office with fidelity ~~~~ - ~ ,~ ~~_- ignattre ~, Sig afore _ -__.. Sig hie Daniel__K. I)eardor.ff, Esq. John F. King, Esq. Ryan P. Siney, Esq. Name (Chaff~man} Name Name MARTSON LAiv' OFFICES Lath' rr r..,. 10 East High Street Address - - Carlisle, 17013 Cin------ - Zip JOHN F. KING LAW Law Finn 4076 Market Street_ Ac dress C<~mp Hill, 1701 ]. City, Zip SHUMAKER WILLIAMS, P.C. La~~~ Firm. 3425 Simpson Ferry Road Address Camp Hil-.L, 17011 City, Zip A« arcl tine; the undersigned arbitrators; having been duly appointed and sworn (or affirmed), maiti<~ the folloz~.ira ati~~a:~d: (`'_vote: If damages for delay are a~~,°arded, they shall be separaely stated.) ''U`i ~~' °~'i7' f r~1 Gl L'U ,~-- G~-r' ~f 1 ~n ~ r l i~ +'-i ~. arbitrator, dissents. (Insert name if applicable.) Date of H~~arir.~~ _, ,;, Date oF. ,wan.i:^ 1 '' ZS ~. !2 how. the o~5 day of _ d~~ , 20 ~~- , at /d-%/ . f~ .w1., the above award was entered upon the docket and notice thereof Given by mail to the parties or- their attorneys. ~rbitrators~ cornbensation to be paid upon appeal: ~ ~//G •.S~ /_ _`'_- Prothonotary _ ;~enur Notice of Entry of ~~vard ` 4-;E PROTHC~~~~`p` ~~ ?~12 QC~' 2~ Ah4 ~~ CUMBEK~.~t~U Ct1~it~ ~ '~ P~NNSYLVANi~ F ~. .. f ~+~'>`