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HomeMy WebLinkAbout02-0332VAN T. PHAM, Plaintiff CHRISTINE A. ESPLENLAUB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO.: fo~. ~ 33,~, ~ CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Courthouse 2 Liberty Avenue Carlisle, PA 17013-3387 Telephone: (717) 249-3166 Dated: By: DIVEGLIA & KAYLOR, P.C. (717) 624-2500 Attorney for Plaintiff YAN T. pHAM, plaintiff ¥. CItRISTINE A. ESPLENLAUB, Defendant IN THE COURT OF coMMON PLEAS OF CUMBERLAND couNTY, PENNA. CIVIL ACTION - LAW JURY TRIAL DEMANDED cOMPLAINT AND NOW, this 17th day of January, 2002 comes the Plaintiff, by and through her attorneys, Diveglia & Kaylor, P. C., and files the following complaint and avers in support thereof as follows: 1. The Plaintiff, Van T. Pham, is an adult individual, who resides at 214 St. Johns Church Road, Camp Hill, Cumberland County, Pennsylvania, 17011. 2. The Defendant, Christine A. Esplenlaub, is an adult individual, who resides at 516 Katrina Court, Mechanicsburg, Cumberland County, pennsylvania. 17055. 3. On November 15, 2000, at approximately 6:15 a.m., the Plaintiff was duly operating a motor vehicle northbound on Good Hope Road at or near its intersection with Shasta Way in Hampden Township, Cumberland County, pennsylvania. 4. At the above-said time and place, the Defendant was operating her vehicle in a westwardly direction on Shasta Way and had come to the stop sign for the purpose of turning left and to go southbound on Good Hope Road when she suddenly and negligently pulled from the stop sign into the path of the Plaintiff causing a collision of the vehicles. 5. As a result of the above-described collision, the Plaintiff incurred injuries and was taken to the Emergency Room at Polyclinic Hospital. The injuries of the Plaintiff consisted of a thoracic compression fracture of the T10/T11, bilateral shoulder pain, chest pains, mid-back pain and right thoracic pain as a result of various contusions and has incurred the development of myofascitis. 6. As a result of the above-described collision, Plaintiff incurred a period of disability from her employment resulting in a claimable loss of earnings which were not compensated for as first-party benefits. 7. As a result of the above-described injuries, Plaintiff has incurred serious pain and mental distress. 8. As a result of the above-described injuries, Plaintiff's spine will be more vulnerable to arthritic change and, thus, may result in future pain and suffering. 9. The above-described injuries and losses relating those injuries were a result of the negligence of the Defendant whose negligence consisted of the following: (a) She pulled from a stop sign without first determining that it was safe to do so and, thus, was negligent, per se, under the Pennsylvania Motor Vehicle Code, Section 3322. (b) She failed to observe traffic conditions before she pulled into the intersecting roadway. (c) She drove her motor vehicle in a reckless and careless manner. (d) She failed to yield the right-of-way to the Plaintiff. WHEREFORE, Plaintiff Van T. Pham, demands judgement against the Defendant, Christine A. Esplenlaub, for a sum in excess of $35,000.00. Respectfully Submitted, By:~ Attorn_ e.y I..D. ?. !71~_. Two Lincoln Way ~est New Oxford, PA (717) 624-2500 Attorney for Plaintiff VERIFICATION The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is tree and correct to the best of my knowledge, information and belief. To the extent that the content is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of Pa.C.S. Section 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. VAN T. PHAM, Plaintiff VS. CHRISTINE A. ESPENLAUB, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-332 : : C1VIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF SAID COURT: Please enter my appearance on behalf of Defendant Christine A. Espenlaub in the above- captioned matter. Dated: CALDWELL & KEARNS By: ~~~___~ 3631 No t Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant CERTIFICATE OF SERVICE ANDNOW, this f dayof 7~_~.~e~,.~ ,2002, I hereby certify that l have served a copy of the within document on the following by depositing a tree and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Archie V. Diveglia, Esquire DIVEGLIA & KAYLOR, P.C. Two Lincoln Way West New Oxford, PA 17350 CALDWELL & KEARNS Sy 02-79/35902 SHERIFF'S RETURN - REGULAR CASE NO: 2002-00332 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PHAM VAN T VS ESPLENLAUB CHRISTINE A BARYAN WARD , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ESPLENLAUB CHRISTINE A the DEFENDANT , at 2047:00 HOURS, at 516 KATRINA COURT MECHANICBSURG, PA 17055 CHRISTINE A ESPLENLAUB on the 22nd day of January , 200__2 by handing to a true and attested co~y of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 8.28 Affidavit .00 Surcharge 10.00 .00 36.28 Sworn and Subscribed to before me this 3~ ~ day of ~,~ ~ ~ . A.D. / ! / IProthofiotary t ' So Answers: R. Thomas Kline 01/23/2002 ~riff ~ VAN T. PHAM, Plaintiff CHRISTINE A. ESPLENLAUB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 02-332-Civil CIVIL ACTION-LAW NOTICE TO PLEAD TO: Van T. Pham c/o Archie Diveglia, Esquire Two Lincoln Way West New Oxford, PA 17350 YOU ARE HEREBY NOTIFIED that the New Matter set forth herein contain averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Respectfully submitted, CALDWELL & KEARNS James L. Goldsmith, Esquire Attorney I.D.//27115 Douglas E. Herman, Esquire Attorney I.D. #86569 3631 North Front Street Hamsburg, PA 17110 (717) 232-7661 Attorneys for Defendant, Christine A. Esplenlaub 02-79/37423 VAN T. PHAM, : Plaintiff : : V. : : CHRISTIANE A. ESPENLAUB, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 02-332-Civil CIVIL ACTION-LAW DEFENDANT'S ANSWER WITH NEW MATTER COMES NOW the Defendant, Christiane A. Espenlaub, by and through her attorneys, Caldwell & Kearns, P.C., and files the within Answer with New Matter and in support thereof avers the following: 1. Admitted upon information and belief. 2. Admitted. 3-9. The averments contained in these paragraphs are generally denied pursuant to Pa.R.C.P. No. 1029 (e). WHEREFORE, the Defendant Christiane A. Espenlaub, demands judgment against the Plaintiff and in her favor with dismissal of the Plaintiffs claims. NEW MATI'ER 10. Defendant hereby incorporates paragraphs 1-9 as though the same were set forth hereunder, 11. Plaintiffs claims are barred in whole or in part by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 12, All or some of Plaintiffs alleged injuries pre-existed the motor vehicle accident which is the subject of Plaintiffs Complaint. 13. In accord with Section 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law, the Plaintiff is not entitled to recover any sums "paid or payable" from any group, plan or other arrangement. 14. Plaintiff has failed to plead that she was bound by the limited or full tort option on the date of the accident, and if she was bound by the limited tort option, Plaintiff has failed to establish any of the exceptions to the rule prohibiting recovery of non-economic damages in accord with 75 Pa.C.S. §1705. 15. Defendant specifically reserves those defenses of contributory/comparative negligence and assumption of the risk. 16. The Plaintiffs claim does not exceed $35,000 and should be referred to mandatory arbitration. WHEREFORE, Defendant, Christiane A. Espenlaub, demands judgment in her favor and against the Plaintiff. Respectfully submitted, James ~.. Goldsmith, Esqmre Attorney I.D. #27115 Douglas E. Herman, Esquire Attorney I.D. #86569 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant, Christiane A. Espenlaub VERIFICATION I, Christine A. Esplenlaub, verify that the statements and averments contained in the foregoing Answer with New Matter are tree and correct upon my personal knowledge, information and belief. I understand that false averments herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities. Christine A. Esplenlaub t/ CERTIFICATE OF SERVICE AND NOW, this02/ day of ,2002, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Archie V. Diveglia, Esquire Two Lincoln Way West Oxford, PA 17350 CALDWELL & KEARNS B~ (~ ~ 025-79/37311 VAN T. PHAM, Plaintiff v. : NO.: 02-332 : CHRISTINE A. ESPLENLAUB, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANTS AND NOW on this /~cc'~day of April, 2002, comes the plaintiff by his counsel and file the following Reply To New Matter of the Defendants as follows: 10-16: Denied. The allegations set forth in these paragraphs are denied as conclusions of law to which no further response is required. Dated: ~-/'-~- Respectfully Submitted, DIVEGLIA & KAYLOR, P.C. Attorney I. Two Lincoln New Oxford, PA (717) 624~2500 Attorney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this!/~ day of April, 2002, I, Rachel A. Matulewicz, for Diveglia & Kaylor, P.C., hereby certify that a copy of the foregoing REPLY TO NEW MATrER was served by first class U.S. mail, postage prepaid and addressed to the following: James L. Goldsmith Caldwell & Dearns 3631 North Front Street Harrisburg, PA 17110 DIVEGLIA & KAYLOR, P.C. Rachel A. Matulewic~,, Legal Secreta .~/ for Diveglia & Kaylor, P.C. VAN T. PHAM, Plaintiff VS. CHRISTINE A. ESPENLAUB, Defendant : lN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-332 : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF SAID COURT: Please enter my appearance on behalf of Defendant Christine A. Espenlaub, in addition to the entry of appearance for Attorney James L. Goldsmith, Esquire, which was filed with this Court on February 7, 2002, in the above-captioned matter. Dated: By: ~uire Attorney I.D. #86569 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant CERTIFICATE OF SERVICE AND ,~l NOW, this J~ day of / ./~v_,~ , 2002, I hereby certify that I have I served a copy of the within document on the following by depositing a tree and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Archie V. Diveglia, Esquire DIVEGLIA & KAYLOR, P.C. Two Lincoln Way West New Oxford, PA 17350 CALDWELL & KEARNS 02-79/38746 VAN T. PHAM, Plaintiff VS. CHRISTINE A. ESPENLAUB, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-332 : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFI.__._CATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.2'7 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (2) a notice of intent to serve the subpoenas with copies of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoenas are sought to be served; a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate; (3) objections to the subpoenas have been waived; and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent to serve the subpoenas. Date: $- CALDWELL & KEARNS Attorney I.D. #86569 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant VAN T. PHAM, Plaintiff VS. CHRISTINE A. ESPENLAUB, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-332 : : CIVIL ACTION- LAW : JURY TRIAL DEMANDED .NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND 'l'r~ ~ NGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant Christine A. Espenlaub intends to serve subpoenas identical to the ones that are attached to this notice. You have twenty (20) days f~om the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Dated: CALDWELL & KEARNS DougYas E. Herman, Esquire Attorney I.D. #86569 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant VAN T. PHAM, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 02-332 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR FOR DISCOVERY PURSUANT TO. RULE 4009~?. Records Custodian Pinnacle Health/POlyclinic Hospital 2601 North Third Street Harrisburg, PA 17110 CHRISTINE A. ESPENLAUB, Defendant TO: Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete emergency room and medical file for Van T. Pham, (SS# 189-72-0554/DOB: 9/1/43) pertaining to any injuries for which she was treated on or about November 15, 2000, at CALDWELL & KEARNS, 3631 N. Fwa/Stree. t~ Harrisburg. PA 17110, ~ You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance to the party making this request at the address listed above. You have the right to seek in copies or producing the things sought. ' advance the reasonable cost of preparing the If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena was issued at the request of the following person: Name: Douglas E. Herman, Esquire Address:. 3631 North Front Street Harrisburg, PA 171 I0 Telephone: (717) 232-7661 Supreme Court ID # 86569 Attorney for Defendant By the Court: Date: Prothonotary Seal of the Court Deputy VAN T. PHAM, Plaintiff VS. CHRISTINE A. ESPENLAUB, Defevdant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-332 : : CIVIL ACTION- LAW : JURY TRIAL DEMANDED TO: SUBPOENA TO PRODUCE DOCUMENTS OR TglrNGS FOR DISCOVERY PURSUANT TO RULE 4009,2? Edwin A. Aquino, M.D., P.C. 845 Sir Thomas Court - Suite 10 Harrisburg, PA 17109 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete medical file for Van T. Pham, (SS//189. 72-0554/DOB: 9/1/43), at CALDWELL & KEARNS, 3631 N. Front Street, Harrisbure. PA 17110. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the ccHificate of compliance to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subp6ena may seek a court order compelling you to comply with it. THIS Subpoena was issued at the request of the following person: Name: Douglas E. Herman, Esquire Address: 3631 North Front Street Harrisburg, PA 171 I0 Telephone: (717) 232-7661 Supreme Court ID # 86569 Attorney for Defendant By the Court: Date: Prothonotary Seal of the Court Deputy VAN T. PHAM, Plaintiff VS. CHRISTINE A.. ESPENLAUB, Defendant TO: : IN THE COURT OF COMMON PLEAS OF i CUMBE~ COUNTY, PENNSYLVANIA : NO. 02-332 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED S~_T~_O_ PR U E DOCUMENTS OR THINGS oK I~I;~COVERY PURSUANT TO RULi14009.2 ~. Records Custodian HealthSouth Rehabilitation of Mechanicsburg 920 Century Drive Mechanieaburg, PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records for Van T. Pham, (SS// 189-72-0554/DOB: 9/1/43), at ALDWELL & KEARN 3631 N. Front Stree H 'sbur PA J711o. . You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or ~ings required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena was issued at the request of the following person: Name: Douglas E. Herm~_,~ Esquire Address: 3631 North Front Street Han'isburm PA 17110 Telephon~: (717) 232-7661 Supreme Court ID # 86569 Attorney for Defendant By the Court: Date: Prothonotary Seal of the Court Deputy VAN T. PHAM, Plaintiff VS. CHRISTINE A. ESPENLA~, Defendant TO: : IN THE COURT OF COMMON PLEAS OF : CUMBERI.AND COUNTY, PENNSYLVANIA : : NO. 02-332 : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBP NAT P DUC D MENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.27, Karyn S~a'achan, Director of Human Resources Specialty Bakers P.O. Box 130 Marysville, PA 17053 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: The complete employment file including any and all correspondence, documents or notes pertaining to Van T. Pham's receipt of short term dimbiHiy benefits (SS~ 189-72-0~4/DOB: 9/1/43) at CALDWELL & KEARNS, 3631 N. Fm~l fitreet, Harrisburg. PA 17110 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the c~iiificate of compliance to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought.' If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena was issued at the request of the following person: Name: Douglas E. Herman. Esquire. Address: 3631 North Front S~r¢c' Harrisburg, PA 17110 Telephone: (717) 232-7661 Supreme Court ID #~86569. Attorney for Defendant By the Court: Date: Prothonotary Seal of the Court Deputy VAN T. PHAM, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .- VS. : NO. 02-332 : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCO¥~Ry PURSUANT TO RULE 4009.2~ CNA INSURANCE COMPANIES P.O. Box 16203 Reading, PA 19612 CHRISTINE A. ESPENLAUB, Defendant TO: Within twenty (20) days atter service of this subpoena, you are ordered by the court to produce the following documents or things: Complete first-part insurance file of Van T. m, ~ , 000,at ALDWELL & ~--,~S 3631 N. Front Sa-ee Harris ur PA You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance to the party making this request at the address listed above. You have the fight to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena was issued at the request of the following person: Name: Dou~lan E. Herman, Esauire, Address: 3631 North Front Str¢cl Harrisburg, PA 17110 Telephone: (717) 232-7661 Supreme Court ID # 86569 Attorney for Defendant By the Court: Date: Seal of the Court Prothonotary Deputy .,CERTIFICATE OF SERVICE AND NOW, this~__~ay of_~/~~ 2002, I hereby certify that I have served a copy of the within document on the following by depositing a hue and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Arehie V. Diveglia, Esquire D1VE. GLIA & KAYLOR, P.C. Two Lincoln Way West New Oxford, PA 17350 CALDWELL & KEARNS 02-79/4433298 CERTIFICATE OF SERVICE AND NOW, this ,,~; ~day of ~~'~ ,2002, I hereby certify that I have served a copy of the within document on the following by depositing a tree and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Archie V. Diveglia, Esquire DIVEGLIA & KAYLOR, P.C. Two Lincoln Way West New Oxford, PA 17350 CALDWELL & KEARNS 02-79/44645 ~ r~ VAN T. PHAM, Plaintiff CHRISTINE A. ESPLENLAUB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO.: 02-332 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please discontinue the above captioned case. been satisfied in full. All claims of the plaintiff have Dated: DIVEGLIA & KAYLOR, P.C. Archie"~._Diveglia, E~quire/- ' Attorney I.D. #17140 Two Lincoln Way West New Oxford, PA 17350 (717) 624-2500 Attorney for Plaintiffs