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Home My WebLink About04-4459 JEAN DORCE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: - 04 - 4 'IS 9 (};uLL ~~ DAVID A. MCCLAIN and lARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and given back to Karl E, Rominger, Esquire for service on the Defendants. Date: September 2, 2004 Respectfully submitted, ROMINGER, BAYLEY & WHARE ) ~- ~ Kkl E. Rominger, Esquire 155 South Hanover Street Carlisle, PAl 7013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff WRIT OF SUMMONS To The Above Named Defendants: David A. McClain laro Transportation Services, Inc. 15808 Burkhart Road 975 Post Road, NW Orrville,OH Warren,OH YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF~AS COMMENCED AN ACTION AGAINST YOU. /) ~ ':) ( ,-</J-W? ) 1<. ~ Prothonotary ,. V Date: 9/~/o'l ~ dJ;~_P- %nA_. / " 4;;;~ ,-:0 Cl ~~ .tq, (~:; .- ::;:! (.r ;"\1 ^i (:\ V) ~~:~ ~ " .Crt , il- l') "l -;:~ ..... 0 .~ ." en w C/) N F! > r:,) 0 ..0 en () If' - r- 1- JEAN DORCE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 04 - 4459 DA VlD A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. : JURY TRIAL DEMANDED Defendants AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLV ANIA ) COUNTY OF CUMBERLAND ) 1, Karl E. Rominger, Esquire did serve pursuant to the Rules of Civil Procedure by way of a private ProcesS Server both Jaro Transportation Services and David McClain, a driver for Jaro Transportation Services certified copies of the Praecipe for Writ of Summons. The same were served at Jaro Transportation Services at their address of975 Post Road, NW, Warren, OH. Service was executed on September 16,2004, and an Affidavit of Service is attached. Dated: October 8, 2004 Respectfu\1y submitted, ROMINGER & BAYLEY /7. /~ - Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 PROOF OF SERVICE, TCJf - 9l~ol oc! CERTIFICATE I AFFIDAVIT OF SERVICE I NON-SERVICE AFFIDAVIT OF PROCESS SERVER In the matter regarding: JEAN DORCE VS. DAVID A. MCCI,AIN & JARO TRANSPORTATION SERVICES, INe. Case No,: 04-4459 - CIVIL TERM Court: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Being first duly sworn, I state that I am the legally competent adult who is not a party or an officer of corporate party, and that: X I served the provided: PRAECIPE OF WRIT OF SUMMONS By X Personal Service D Registered or Certified Mail fCOPY of return rec:eipt attached) on: 3c..,D 1r-/;,,,,::>P,O'\c..\\OVl -loG'" ,tJ( ZuZO, 0 _ ~v,J ('1c~\t"" - ~ 3un:S TH""p"rtcJ"),,,, (hu{"iJu~ :')pp4 lID, ,';)('{)t,J (oJ 3;/') f'^'" Name I Address Cj, '5" -f 1Zd, tr-:l[..,re" , Ol~ DaylDatel e DAfter diligent search and inquiry, I have been unable to find and serve the provided: I have made the following efforts in attempting to serve process: D On [Day. Date, Time}. I personally attempted to serve copies of the [Type of Document} on: Name Address and was unable to complete service because the servee is no longer at !hill address, Special Process Server J Car' Subscribed and sworn to and before me~.I- d 3,..20(1 V in the County of jlird United States of America, ' ,/ Signature of Notary: '~..bI: ~?'7"7A>d./X J , Slate of Ohio, [Affix Notary Seal] RUTH A. PATTERSON Notary Public, Stale of Oblo A1yComm. Exp. ? .a~-O>O{) 9 (") ~.;:; u(" rnr';'1 :2["" u:~ ,: ~. ~::~~ \- ~~~ --. "" <::::~ c::) "'- = ,) -I I CD 72 -,. <J1 00 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JEAN OORCE, v. CIVIL ACTION - LAW DAVID A MCCLAIN and lARO TRANSPORTATION SERVICES, INC., NO.: 04-4459 Defendant JURY TRIAL DEMAND PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Karl E. Rominger, Esquire, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $ 25,000.00 or less. The counterclaim of the Defendant in the action is $ -0- (none). The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Karl E. Rominger, Esquire, Alan Rouch, Esquire and William Salmon, Jr., Esquire. WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, Rominger, Bayley & Whare Date: q/~/C6 ~--- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Telephone: (717) 241-6(}70: Supreme Court 11># 81924 Attorney for Plaintiff , ~O\ -z:: (") r--> 0 \:>\. <= n ~- ~ -n -=t - q ~:o T\ Y1 <::n--: (T!( , 2'.";' 1>~ ~ ~ .__,-e- N (Ii) - Q ..f:...,. :;-J 1'"0. "'- .t" C::.';',. ~ ?-::.n l;;' ~ i;C; '40 ~ -"- rTl ~ ~ ;'Z::c' - Q, >-"c:: - (" z "'" 2 N ?l >--:> ~ &" S ;:) c::." q Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYLV ANIA JEAN DORCE, vs. : CIVIL ACTION - LAW : NO: 04 - 4459 DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED NOTICE YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (ZO) 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 ajudgment 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 INFORMA nON ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMA nON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCED FEE OR NO FEE. Pennsylvania Bar Association 100 South Street, P.O. Box 186 Harrisburg, PA 17108 1-800-692-7375 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYL VANIA JEAN DORCE, vs. : CIVIL ACTION - LAW : NO: 04 - 4459 DA VlD A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW cornes the Plaintiff, Jean Dorce, by and through his attorney, Karl E. Rorninger, Esquire, and in support of this Cornplaint avers as follows: I. Plaintiff Jean Dorce is an adult individual who resides at 21 02 Westbury Court, Apt 4-D, Brooklyn, New York, 11225. 2. Defendant David McClain is an adult individual who resides at 15808 Burkhart Road, Orrville, Ohio, 44667. 3. Defendant Jaro Transportation Services, Inc. is a Corporation located at 975 Post Road, Warren, Ohio, 44483. 4. On or about September ZO, 2002, at approximately 12:20p.m. Plaintiff and his passenger were traveling in the right lane on the Pennsylvania Turnpike, traveling from New York to Indiana. 5. At this same tirne, Defendant McClain was driving a Peterbuilt Tow Truck, owned by Jaro Transportation Services, Inc, in the left lane:. 6. The vehicles collided when Mr. McClain tried to move into the right lane. 7. The irnpact pushed Mr. Dorce's car into the guide rail, where it carne to a stop. 8. The state police responded to the accident and interviewed both drivers. 9. Mr. Dorce's car was unable to be driven from the scene, due to damage on both sides from the truck guide rail. 10. Mr. Dorce and his passenger, Jean Hyacinthe were taken to Carlisle Regional Medical Center's Emergency Room to be treated for injuries. 11. Mr. Dorce followed up his emergency room visit in December of 2002 and returned to his prirnary doctor at IV Medical Group Primary Care and saw Dr. Brandt. 12. Dr. Brandt admitted Mr. Dorce into the Integrative Pain Center for two different phases of treatment. 13. Phase One of Mr. Dorce's treatment was to talk to a specialist on how pain affects the body, how rnedications work, how to relax in tense situations and how to avoid negative self-talk. During Phase One, Mr. Dorce had to set goals to reach Phase Two. 14. Phase One met for the first time on May 9, 2003, and continued every week for six consecutive weeks, and each session lasted for two how:s. 15. Phase Two consists of individual evaluations by a physician, counselor and physical therapist. 16. After the evaluations, Mr. Dorce was given recornnlendations for rnedications or individual treatment. 17. Mr. Dorce completed both phases of treatment. 18. On March 27, 2003, Mr. Dorce admitted himself into the Wishard Hospital, because he was having severe pain. 19. Mr. Dorce was given an injection to alleviate the pain, which gave hirn some relief, but the discornfort rernained during daily activities. 20. Mr. Dorce was instructed to limit his activities. 21. Mr. Dorce began taking therapy sessions at the Wishard Rehab Center from January 1, 2004 until February 11,2004, he had eight therapy sessions with the Wishard Rehab Center. 22. Throughout, Mr. Dorce's time at the Rehab Center, he started sleeping with a pillow to support his knees and relive stress from his back. 23. He was instructed to place a rolled towel behind hirn, in the middle of his back when sitting down. 24. Mr. Dorce's paid was eased after therapy but was never fully recovered. 25. Mr. Dorce still suffers frorn constant pain during daily activities and has been unable to work as an assembly man since the accident. 26. Mr. Dorce's medical bills to date are $1,708.72. Count I, Jean Dorce v. David McClain 27. Previous paragraphs are incorporated by reference. 28. Defendant McClain had a duty to Plaintiff. 29. Defendant McClain was negligent in that: (a) He failed to yield; (b) He failed to keep an assured clear distance; (c) He failed to keep alert and maintain a proper and adequate watch for the presence of other vehicles on the roadway (d) He drove a vehicle in a manner endangering persons and property and in a reckless rnanner with careless disregard for the rig:hts and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. (e) He was otherwise generally negligent. 30. Plaintiff s vehicle was damaged as a result of this acc:ident and Plaintiff is entitled to the value of those repairs. 31. Plaintiff sustained physical, mental and ernotional injuries, including pain, suffering, nervousness and the like for which Defendant's negligence was the cause. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in his favor in an amount not rnore than the statutory limits for compulsory arbitration, including costs of this suit and attorney's fees. Count II. Jean Dorce v. Jaro TransDortation Services Inc. 32. Previous paragraphs are incorporated by reference. 33. Defendant Jaro Transportation Services Inc. has a duty to ernploy safe drivers. 34. Defendant Jaro Transportation Services Inc. is liable under vicarious liability for the negligence of their ernployee as rnore fully described in Count 1. WHEREFORE, Plaintiff respectfully requests that tlris Honorable Court enter an award in his favor in an amount of not rnore than the statutory limits for cornpulsory arbitration, including costs of this suit and attorney's fees. Respectfully subrnitted, ROMINGER, BAYLEY & WHARE Date: ~ I L-! L.t.JQI ;/ ;2- Karl E. Rominger, Esquire 155 South Harlover Street Carlisle, PA 17013 (717) 241-6070 Suprerne Court 10 # 81924 Attorney for Plaintiff Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYL VANIA JEAN DORCE, vs. : CIVIL ACTION - LAW : NO: 04 - 4459 DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Sidney W. Eggers, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, and Certified Mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: David A. McClain 15808 Burkhart Road Orrville, OH 44667 Jaro Transportation Services, Inc. 975 Post Road, NW Warren,OH 44483. Date:).fjl L~ 2-b~/ /- ... Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Suprerne Court 10 # 81924 Attorney for Plaintiff o ~ --:-::.t"'::: '~~~:i! ~.~~ ~';-~ , ;""1 c: -;- ~ ...., = ~ en r'"' '"t] N ~ s:!-n n1F 1J\:? Ot? ;:5";""'" - ~.,., ""~ o ._~ ~ ?i N W Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYL VANIA JEAN DORCE, vs. : CIVIL ACTION - LAW : NO: 04 - 4459 DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED AMENDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Jean Dorce, do hereby certify that I this day served a copy of the Complaint upon the followi"e by depositing same in the United States mail, and Certified Mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: David A. McClain 15808 Burkhart Road Orrville, OH 44667 Jaro Transportation Services, Inc. 975 Post Road, NW Warren,OH 44483. Date: 1- )8"0 $ } --- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court 10 # 81924 Attorney for Plaintiff (") ....> 0 = '0: = ..,., "-" :1 el) -4 :t:-n c~ rl1p 'J N -at'" ';.';t, CO [~:1~.r'; -0 :~.~~q -... r::> Om .4 w SJ w -< RA WLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 Johnna M. Darby, Esquire Identification No.: 94492 25 North Front Street, First Floor Harrisburg, Pennsylvania 17101 (717) 234-7700 Attorneys for Defendant, Jara Transportation Services, Inc. JEAN DORCE :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY Plaintiff, : CIVIL ACTION NO.: 04-4459 vs. DA VID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INe. Defendants. NOTICE OF REMOVAL TO FEDERAL COURT PURSUANT TO 28 U.S.c. l:i 1446(d) TO THE CLERK OF THE COURT: Pursuant to 28 U.S.C. S 1446(d), defendant, Jara Transportation Services, Inc. files herewith a copy of the Notice of Removal of Action which has been filed in the United States District Court for the Middle District of Pennsylvania on October 20,2005. By: LLP N. Stewart, Esquire Johnna M. Darby, Esquire Attorney for Defendant, Jara Transportation Services, Inc. Dated: 10/20/05 1215494 v.I CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within- captioned Notice of Removal Pursuant to 28 U.S.C. ~1446(d) was served via first-class mail, postage prepaid, on the following: Karl E. Rominger, Esquire Rominger, Bayley & Whaane 155 South Hanover Street Carlisle, P A 17013 Attorney for Plaintiff ry N. Stewart Johnna M. Darby Dated: 10/20105 1215494 v.I bX~lbt A CIVIL COVER SHEET ;~- .-- ": JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided ocal rules of court This form, approved by the Judicial Conference 09f the United States in September 1974, is required for the use of the Cieri<. of Court for the purpose of initiating civil' docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I) PLAINTIFFS Jean Dorce DEFENDANTS David A. McClain and Jaro Transportation, Services, Inc. )) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF Cumberland (EXCEPT IN U.S PLAINTIFF CASES) :) A rrORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) (arl E. Rominger, Esquire tominger, Bayley and Whane 55 S. Hanover St arlisle, PA 17013 COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT Qh!2 (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LANO INVOLVED ATTORNEYS (IF KNOWN) Gary N. Stewart, Esq. Rawle & Henderson, LLP 25 N. Front St, 1st FIr. Harrisburg, PA 17101 (717) 234-7700 ] 1. U.S. Government Plaintiff 3ASIS OF JURISDICTION 03 (PLACE AN 'X' IN ONE BOX ONLY) III. CITIZENSHIP OF PRINCIPAL PARTIES For diversity cases only (PLACE AN 'X' IN ONE BOX FOR PLAINFIFF AND ONE BOX FOR DEFENDANT) I 2. U.S. Government Defendant Federal Question (U.S. Government Not a Party) I2l 4. Diversity (Indicate Citizenship of Parties in Item III) OrigInal .Jroceeding 1m 2 Removed from State Court o 3 Remanded from Appellate Court 0.4 Reinstated or Reopened PTF OEF PTF DEF CitlZBl'\ of This State 01 01 Incorporated or Prinopal Place of 04 04 Business in this State Citizen of Another State DlI2 02 Incorporated or Principal Place of 05 1815 Business in Another State Citizen or Subject of a 03 03 Foreign Nation 06 06 Foreian Country Appeal to DlsCriot o 5 Transferred from o 6 MultidistJict [J 7 Judge from Magistrate another disbid (specify) Litigation Judgment ORIGIN (PLACE AN "X" IN ONE BOX ONLY) NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY) CONTRACT TORTS FORFEITUREI BANKRUPTCY OTHER STATUTES PENALTY J Insurance PERSONAL INJURY PERSONAL INJURY 0610 Agriculture 04%2 Appul2B USC 15B 0400 State Reapportionment J Marine 0310 Ail1'lono 03'2 Pe...on.llnjury-- 0&20 Othor Food&Dnog 0423 Wnhd",wol 2B USC 157 0410 Anti"".. 0316 Ail1'lono Product .d Malpl'lctiee 0825 Drug Related Seizuq 0430 B.nks and BankinG ) Miller Act Liability 0346 Pers.onalll'ljury-. of Property 21, use 881 0450 Comm.rcellCC Rates/etc. ) Negotiable Instrument 0320 Assault, Libel & Product Liability 0630 Liquor Laws PROPERTY RIGHTS 0460 Depon.tio" 1Recovery of Overpayment Slander 036& Asbestos Person.1 OB40 R.R. & Truck 0820 Copyrlghlll Enforcement of Judgment 0330 Fo<Io..1 Injury Product Liability 0470 Rack-':..r Influ'nctd and \ Medicare Act Employ."" LiablUty 0660 Ajr1in. Regs 0830 Po'ont Corrupt OrganiutloM ? R.ecovery of Defaulted 0340 Marin. PERSONAL PROPERTY OOccup.tional DUO Tradematit 0810 S'I.ctiv. S.rvlce Saf.tylHe.lth 0850 S'curitles/Commoditiesl dent loans (Exc. Veterans) 0346 Marine Product 0370 Other Fraud Exchang. l Recovery of Overpayment Liability 0371 Truth in Lending SOCIAL SECURITY 0875 Cuatomer Challe"g. 12 Veteran's Benefils LABOR C!1:I3SQ Motor V.hicle 0380 Other Personal USC 3410 J Stockholder's Suits 036' Motor V.hicl. Property Damage 0710 Fair Labor St.nd.rd. 0~&1 HlA (139liFF) 0891 Agricultural Acts ) Other Contract Product Liability 038S Properly Damege Ac. 08&2 Black Lung (923) 0892 Economio St.blllzation Act ; Contract Product liability Cl' 360 Oth.r P.rson.1 Product Liability 0720 Labor/Mgmt. Relations Injury 08&3 DIWC/DIWW (&06(g)) 0893 Environmental Matte,.. 0130 Labor/Mgml. 0884 SSID mi. XVI 0894 En.rgy Allocation Act REAL PROPERTY CIVIL RIGHTS PRISONER R.poning & Disclosure Act 08BS RIS (406(gll C896 Fre.dom of Information Act PETITIONS 0140 Railway LJlbor Act 0790 Other Labor litigation 0900 App.al of Fee Determination ) Lind Condemnation 0441 Voting 0610 Motions Co Vacate FEDERAL TAX SUITS Under Equ.1 Ace.... to Justice ) Foreclo.ure 0442 Employmont S.nt.nce 0791 Empl. Rot. Inc. 0'50 Con.titutionality of HABEAS CORPUS: Security Act SUt. Statutes I Rent L.... & Ejectm.nt 0443 Hou.ingl 0870 Tax.. (U.S. Plaln'lff ) Tort" to L.nd Accommodations 0530 G.no",' or O.f.nd.nt) 0890 Oth.r Statutary Actions j Tort Product Liability Cl444 Welf,r. 0636 Oeath Pen.lty 0871 IRS - Third Party I All Other Real Property 0440 Other Civil Righta 0...0 Mandamus & Other 2B USC 7&09 0560 C'vil Righta I CAUSE OF ACTION (CITE THE U.S. CIVIL STATURE UNDER WHICH YOU ARE FILING AND WRITE RIEF STATEMENT OF CAUSE) J.S.C. 1332 & 1446(d). r>ending removal REQUESTEO IN o CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNOER F.R.C.P. 23 JURY DEMAND: 181 YES o NO RELATED CASE{S) IF ANY I ~~r~ETNUMBER (See Instructions): JUDGE : 10120105 SIGNATURE OF ATTORNEY OF RECORD lFFICE USE ONLY IPT. AMOUNT J APPLYING IFP JUDGE MAG. JUDGE -:::,.. .-- IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JEAN DORCE CIVIL ACTION NO.: Plaintiff, vs. DAVID A. MCCLAIN and lARO TRANSPORTATION SERVICES, INC., Defendants, NOTICE OF REMOVAL TO THE HONORABLE JUDGES IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA: Defendant, Jaro Transportation Services, Inc., by and through its attorneys, Rawle & Henderson LLP, respectfully avers as follows: 1. Plaintiff commenced a civil action against defendants in the Court of Common Pleas of Cumberland County, Pennsylvania, by filing a Complaint on or about September 21, 2005, as a result of a September 20, 2002 motor vehicle accident. See Exhibit "A" - Plaintiffs' Complaint. 1215423 v.I 2. On or about October 3, 2005, defendant Jaro Transportation Services, Inc. received a copy of the Complaint. 3. Upon information and belief, defendant David A. McClain has not been served with the complaint. 4. The undersigned counsel will be representing the defendant, David A. McClain, once he is served with the complaint and he consents to the removal of this matter. 5. In plaintiff's complaint, Jean Dorce alleges that he sustained: 10. Mr. Dorce ... [was] taken to Carlisle Regional Medical Center's emergency room to be treated for injuries. 11. Mr. Dorce followed up his emergency room visit in December of 2002 and returned to his primary doctor at IU Medical Group Primary Care and saw Dr. Brandt. 12. Dr. Brandt admitted Mr. Dorce into the Integrative Pain Center for two different phases of treatment. 13. Phase One of Mr. Dorce's treatment was to talk to a specialist on how pain affects the body, how medications work, how to relax in tense situations and how to avoid negative self-talk. During Phase One, Mr. Dorce had to set goals to reach Phase Two. 14. Phase One met for the first time on May 9, 2003, and continued every week for six consecutive weeks, and each session lasted for two hours. 15. Phase Two consists of individual evaluations by a physician, counselor and physical therapist. 16. After the evaluations, Mr. Dorce was given recommendations for medications or individual treatment. 17. Mr. Dorce completed both phases of treatment. 18. On March 27,2003, Mr. Dorce admitted himself into the Wishard Hospital, because he was having severe pain. 19. Mr. Dorce was given an injection to alleviate the pain, which gave him some relief, but the discomfort remained during daily activities. 1215423 v.J -~. .-- - "- 20. Mr. Dorce was instructed to limit his activities. 21. Mr. Dorce began taking therapy sessions at the Wishard Rehab Center from January 1, 2004 until February 11, 2004, he had eight therapy sessions with the Wishard Rehab Center. 22. Throughout, Mr. Dorce's time at the Rehab Center, he started sleeping with a pillow to support his knees and relive stress from his back. . 23. He was instructed to place a rolled towel behind him, in the middle of his back when sitting down. 24. Mr. Dorce's paid (sic) was eased after therapy but was never fully recovered. 25. Mr. Dorce still suffers from constant pain during daily activities and has been unable to work as an assembly man since the accident. 30. Plaintiffs vehicle was damaged as a result of this accident and Plaintiff is entitled to the value of those repairs. 31. Plaintiff sustained physical, mental and emotional injuries, including pain, suffering, nervousness and the like for which Defendant's negligence was the cause. See Plaintiffs' Complaint ~~ 11-25, 30-31 attached hereto as Exhibit "A". 6. Plaintiff demanded $100,000.00 to settle this matter. See demand letter, attached hereto as Exhibit "B". 7. Based upon a fair reading of the Complaint, plaintiff has set forth a claim in which an amount in excess of the jurisdictional limit of $75,000, exclusive of interest and costs, may be at stake. 8. At all times material hereto, defendant, Jaro Transportation Services, Inc. is and was a Ohio corporation with its principal place of business located in Warren, Ohio. 1215423 v.I 9. At all times material hereto and upon information and belief, defendant, David A. McClain, resides at 15808 Burkhart Road, Orrville, Ohio 44667 and is therefore deemed to be a citizen of Ohio. If and when David A. McClain is served, he will be represented by Rawle & Henderson LLP. 10, Plaintiff Jean Dorce is a citizen of the State of New York and, upon information and belief and resides at 2102 Westbury Court, Apt. 4-D, Brooklyn, New York 11225. See Plaintiff's Complaint attached hereto as Exhibit "A." 11. Diversity of citizenship within the meaning of28 U.S.C. S 1332, exists between plaintiffs and defendants since: (a) Plaintiff is a citizen and resident of the State of New York; and (b) Defendants are not citizens of the State of New York. 12. Furthermore, diversity of citizenship existed at the time the action sought to be removed was commenced and continues through the time of filing of this notice, such that defendants are entitled to removal pursuant to 28 U.S,C. S1441, as amended, and 28 D.S.C. S1446. 1215423 V.I ..- .~. .-~. - '- WHEREFORE, defendant, Jaro Transportation Services, Inc., prays that the above-captioned action now pending in the Court of Common Pleas of Cumberland County, Pennsylvania, be removed there from to this Honorable Court. RA WLE & HENDERSON LLP By: Gary N. Stewart, Esquire Identification No.: 67353 Johnna M. Darby, Esquire Identification No.: 94492 Attorney for Defendant, Jaro Transportation Services, Inc. 25 North Front Street, First Floor Harrisburg, Pennsylvania 17101 gstewart@rawle.com idarby@rawle.com (717) 234-7700 (717) 234-7710 Our File No.: 250122 Dated: 10/20/05 1215423 v.I . . - - '- CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within- captioned Notice of Removal was filed electronically with the Clerk of the District Court using its CM/ECF system, which would then electronically notify the following CMlECF participants on this case: Karl E. Rominger, Esquire Rominger, Bayley & Whaane 155 South Hanover Street Carlisle, P A 17013 Attorney for Plaintiff RA WLE & HENDERSON LLP &fJ!f- Gary N. Stewart J ohnna M. Darby Dated: 10/20/05 1215423 v.I ~ . - - ...~. .-- -- .- - -- EXHIBIT "A" -~. .~ .. '" JEAN DORCE, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYL VANIA Plaintiff VS, : CIVIL ACTION - LAW : NO: 04 - 4459 DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED () ~ !; ~ ;::,(l=; (,n' NOTICE ~rn M Z'.. -0 ~..,... ~ --. N !:CJ)I;' ; YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set f~:(n th;: following Complaint, you must take action within twenty (20) days after this Complainfa&i ::: Notice are served, by entering a written appearance personally or by attorney and filing~ting with the Court your defenses or objections to the claims set forth against you, You are waijled N that if you fail to do so, the case may proceed without you and ajudgment may be entered ~ 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 LA WYER AT ONCE. IF YOU 00 NOT HAVE ALA WYER. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. TIllS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER. TInS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THA T MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. PCMSylvania Bar Association 100 South Street, P.O. Box 186 Harrisburg. PA 17108 1.800-692.7375 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Picas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For infonnation about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court You must attend the scheduled conference or hearing. ~ '. ~-n ~~ ..-~ ';() <.:) ~s,.; ::t:-n ~;2o om ~ -< JEAN DORCE, vs. : IN THE COURT OF COMMON. PLEAS : OF CUMBERLAND COUNTY :PENNSYL V ANIA : CML ACTION - LAW : NO: 04 - 4459 Plaintiff DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Jean Dorce, by and through his attorney, Karl E. Rominger, Esquire, and in support of this Complaint avers as follows: 1. Plaintiff Jean Dorce is an adult individual who resides at 21 02 Westbury Court, Apt4-D, Brooklyn, New York, 11225. 2. Defendant David McClain is an adult individual wbo resides at 15808 Burkhart Road, Orrville, Ohio, 44667. 3. Defendant Jaro Transportation Services, Inc, is a Corporation located at 975 Post Road, Warren, Ohio, 44483. 4. On or about September 20, 2002, at approximately 12:2Op.m. Plaintiff and his passenger were traveling in the right lane on the Pennsylvania Turnpike, traveling from New York to Indiana. 5. At this same time, Defendant McClain was ~ving a Peterbuilt Tow Truck, owned by Jaro Transportation Services, Inc, in the left lane. 6. The vehicles collided when Mr. McClain tried to move into the right lane. ~e.,. .- . 7. The impact pushed Mr. Dorce's car into the guide rail, where it came to a stop. 8. The state police responded to the accident and interviewed both drivers. 9. Mr. Dorce's car was unable to be driven from the scene, due to damage on both sides from the truck guide rail. 10. Mr. Dorce and his passenger, Jean Hyacinthe were taken to Carlisle Regional Medical Center's Emergency Room to be treated for injuries. 11. Mr. Dorce followed up his em~gency 1'Qom visit in December of 2002 and returned to his primary doctor at IV Medical Group Primary Care and saw Dr. Brandt. 12, Dr. Brandt admitted Mr. DOICe into the Integrative Pain Center for two different phases of treatment 13. Phase One of Mr. DOICe's treatment was to talk to a specialist on how pain affects the body, how medications wor14 how to relax in tense situations and how to avoid negative self-talk. During Phase One, Mr. Dorce had to set goals to reach Phase Two. 14. Phase One met for the first time on May 9, 2003, and continued every week for six consecutive weeks, and each session lasted for two hours. 1 S. Phase Two consists of individual evaluations by a physician, counselor and physical therapist. 16. After the evaluations, Mr. Oorce was given recommendations for medications or individual treatment. 17. Mr. Dorce completed both phases of treatment 18. On March 27,2003, Mr. Dorce admitted himselfinto the Wishard Hospital, because he was having severe pain. .'l:.. .-- ~ 19. Mr. Dorce was given an injection to alleviate the pain, which gave him some relief, but the discomfort remained during daily activities. 20, Mr. Dorce was instructed to limit his activities. 21. Mr. Oorce began taking therapy sessions at the Wishard Rehab Center from January 1,2004 until February 11,2004, he had eight therapy sessions with the Wishard Rehab Center. 22, Throughout, Mr. Dorce's time at the Rehab Center, he started sleeping with a pillow to support his knees and relive stress from his back. 23. He was instructed to place a rolled towel behind him, in the middle of his back when sitting down. 24. Mr. Dorce's paid was eased after therapy but was never fUlly recovered. 25. Mr. Dorce still suffers from constant pain during daily activities and has been unable to work as an assembly man since the accident, 26. Mr. Dorce's medical bills to date are $1,708,72. Count I. Jean Dorc:e v. David McClain 27, Previous paragraphs are incorporated by reference. 28. Defendant McClain had a duty to Plaintiff. 29. Defendant McClain was negligent in that: (a) He f:u1ed to yield; (b) He failed to keep an assured clear distance; (c) He failed to keep alert and maintain a proper and adequate watch for the presence of other vehicles on the roadway ..~. .-- (d) He drove a vehicle in a manner endangering persons and property and in a reckless manner with careless disregard for the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. . (e) He was otherwise generally negligent. 30. Plaintiff's vehicle was damaged as a result of this accident and Plaintiff is entitled to the value of those repairs. 31. 'Plaintiff sustained physical, mental and emotional injuries, including pain, suffering, nervousness and the like for which Defendant's negligence was the cause. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in his favor in an amount not more than the statutory limits for compulsory arbitration, including costs of this suit and attorney's fees. -~- .-- Count n. Jean Dorce v. Jaro TransnortatioD Services Ine. 32. Previous paragraphs are incorporated by reference. 33. Defendant Jaro Transportation Services Inc. has a duty to employ safe drivers. 34. Defendant Jato Transportation Services Inc. is liable under vicarious liability for the negligence of their employee as more fully described in Count I. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an . . award in his favor in an amount of not more than the statutory limits for compulsory arbitration, including costs of this suit and attorney's fees. Respectfully submitted, ROMINGER, BAYLEY & WHARE Date: 5-<.,1'-/ LtJaj- ;/ ;2 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle. PA 17013 (717) 241-6070 Supreme Court ID # g 1924 Attorney for Plaintiff ~ - .- ..~. ,.- JEAN DORCE, Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 04 - 4459 DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. R~minger, Esquire, attomey for Sidney W. Eggers, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, and Certified Mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: David A. McClain 15808 Burkhart Road Orrville, OH 44667 Jaro Transportation Services, Inc. 975 Post Road. NW Warren,OH 44483. Date:5-o/1 L ~ 1- 6~/ ;J ... Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff .-:... .-- VS, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY :PENNSYL VANIA : CIVIL ACTION - LAW : NO: 04 - 4459 JEAN DORCE, Plaintiff DAVID A. MCCLAIN and JARO TRANSPORTATION SERVICES, INC. DefendantS : JURY TRIAL DEMANDED AMENDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Jean Dorce., do hereby certify that I this day served a copy of the Complaint upon the followia:..o by depositing same iIi the United States mail, and Certified Mail, postage prepaid, at Carlisle, Pennsylvania. addressed as follows: David A, McClain 15808 Burkhart Road Orrville, OH 44667 Jam Transportation Services, Ine, 975 Post Road. NW Warren. OH 44483. . D~:1- )8'D $ 2~R~ 1 S5 South Hanover Strect Carlislc, P A 17013 (117) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff (") ~ c = ~ <:::> ?' o:n -uQj CI? ::7!=.n Ojrrl ,.., 4,.,. -0 Lr-- "'r- oP. I'\) -om ," ?6 ~_c ~ r' :::;::--. :El- -0 =e:a c5 ::s:: ~o ;C;' ~ ':-:> om ..... w ~ -< w -< . . -- ~ .. ~- .-'- .- - EXHIBIT "B" .~. .-- ~~$~g~~ LAW OFFICES lawOromingerlaw.com www.romingerlaw.com 1 SS SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 KARL E. ROMINGER, EsQ. MARK F. BAYLEY, ESQ. MICHAEL J. WHARE, ESQ. TEL: 717.241.6070 FAX: 717.241.6878 November 8, 2004 Michael Barley, Adjuster Custard Insurance Adjusters, Inc. 8202 Clearvista Parkway Bldg 9, Suite A Indianapolis, IN 46256 RE: My client: Date of Loss: Your File No.: Your Insured: l .' ~f"r:~"~j~'-':" /jQ, ~~G~~ ~ lOJ r~ . -- JeaD'Dorce 9120/02 003-026865 Jaro TraosportatioD Dear Mr. Barley: As you know, I represent Jean Dorce regarding the motor vehicle accident that occurred in September of 2002. Please consider this letter as a formal demand to settle this matter. L BACKGROUND Jean Dorce is 38 years old and was born on October 9,1965. He currently resides in Indianapolis, Indiana n. THE INCIDENT On September 20, 2002, Jean Dorce and his passenger were traveling through Pennsylvania on the Turnpike from New York to Indiana. The weather conditions were clear. At approximately 12:20 p.m., Mr. Dorce was driving in the right lane of the Turnpike through Cumberland County. At the same time, David McClain was driving a Peterbuilt Tow Truck, owned by laro Transportation Services Inc, in the left lane. The vehicles collided when Mr. McClain tried to move into the right lane. The impact pushed Mr. Dorce's car into the guide rail, where it came to a stop. The state police responded to the accident and interviewed both drivers. Mr. Dorce's car was unable to be driven from the scene. The car was damaged on both sides from the truck and guide rail. After speaking the trooper, Mr. Dorce requested an ambulance for himself and his passenger, Jean Hy~inthe. They were taken to Carlisle Regional Medical Center's Emergency Room to be treated for their injuries. ADVOCACY - AOVICE - ANSWERS ...~.. ..-- . m. NEGLIGENCE Mr. McClain bad a duty to drive in a reasonably prudent manner while operating his vehicle on September 20, 2002. He breached that duty by not maintaining adequate control of his vehicle, by not meeting the assured clear distance standard and by not operating his vehicle in a safe manner. Mr. McClain bas no defense against a negligence action. Mr. McClain was driving a large, cumbersome vehicle and was expected to exercise more than the usual amount of caution when doing so. Jean was io good physical shape at the time of the accident. There were no adverse weather conditions present that day along the Turnpike in Cumberland County. The incident occurred during the daylight hours. IV. MEDICAL BILLS AND REPORTS Please find enclosed copies of my client's medical bills to date, $1708.72. Mr. Doree and his passenger were taken to the emergency room at Carlisle. Mr. Dorce followed up his emergency room visit in December. He returned to his primary doctor at ill Medical Group Primary Care and saw Dr. Brandt. Dr. Brandt admitted Mr. Doree into the Integrative Pain Center for two different phases of treatment. Phase One, Mr. Doree talked to specialist on how pain affects tbe body, how medications work, bow to relax in tense situations, and bow to avoid negative self-talk. During.Phase One, Mr. Doree was also asked to set goals to reach until Phase Two. Phase One met for the first time on May 9, 2003, and continued every week for, for six consecutive weeks. Each session lasted for two hours. Phase Two cOnsists of individual evaluations by a physician. counselor and physical therapist. After they discussed their evaluations, Mr. Derce was given recommendations for medications or individual treatment. Mr. Doree completed both phases oftbe treatment. On March 27,2003, Mr. Doree admitted himself into the Wishard Hospital, because he was having severe pain. . During that visit, Mr. Dorce was giv~nan injection in his back to alleviate the pain. Mr. Dorce experienced some reliet: but still felt uncomfortable during daily activity and sleep. After his injection, Mr. Dorce was instructed to limit his activities. Mr. Doree began taking therapy sessions at the Wishard Rehab Center From Janurary I, 2004 until February 11,2004, Jean bad eight therapy sessions with the Wishard Rehab Center. Throughout his time at the Rehab Center, Mr. Dorce started sleeping with a pillow to support his knees and relieve stress from his back. He was also told to place a rolled up towel behind him, in the middle ofms back when sitting down. Mr. Dorce's pain was eased after therapy but was never fully recovered. He still suffers from constant pain during daily activities and has been unable to work: as an assembly man since the accident. -~. .-- - 'Il ..... . , V. PAST, PRESENT AND FUTURE PAIN AND SUFFERING I DISTURBANCE OF LIFE'S PLEASURES Jean is a single. energetic, middle aged man, who enjoyed working and traveled frequently. Jean can no longer work on an assembly line because the tasks required lifting and caused him pain and discomfort. Also,Jean's travels have been limited because he can no longer sit for long periods of time without aggravating his lower back pain. va PLAINTIFFS DEMAND FOR SElTLEMENT We propose to settle this matter for $100,000.00. This offer expires thirty (30) days from the date of this letter. Sincerely, ~ Karl E. Rominger, Esquire KER:smf Enclosures ce. Jean Dorce Pe~ylvania Middle District Version 2.5 . -<, --- .- Page 1 oi2": . Civil and Miscellaneous Initial Pleadings 3:02-at-06000-UN Plaintiff v. Defendant U.S. District Court Middle District of Pennsylvania Notice of Electronic Filing The following transaction was received from Stewart, Gary entered on 10/20/2005 at 10:46 AM EDT and filed on 10/20/2005 Case Name: Plaintiffv. Defendant Case Number: 3:02-at-6000 Filer: Document Number: 802 Docket Text: Notice of Removal Case Title: Jean Dorce v. David A. McClain and Jaro Transportation Services, Inc.; Court Name: Cumberland County, P A.. (Attachments: # (1) Civil Cover Sheet # (2) Exhibit(s) # (3) Rule 7.1 corporate disclosure statement)(Stewart, Gary) The following document(s) are associated with this transaction: Document description:Main Document Original filename:nla Electronic document Stamp: [STAMP dcecfStamp_ID=1027698419 [Date=10/20/2005] [FileNumber=982922-0 ] [398d5eb95da3caeb1456bbd6740eOc38be43de7377c75acf877931feb4de6305036 435da8b3155c31a74362c6f6c2bfdd2f47062cOc7d3ab2dc951f50ecalea5]] Document description:Civil Cover Sheet Original filename:nla Electronic document Stamp: [STAMP dcecfStamp _ID= 1 027698419 [Date=10/20/2005] [FileNumber=982922-1 ] [59f9b6bce8171 d57e45ebdfe1 f22c65ed89fe 19f3281ba3e78078371 cee1e5dd12f 8fbbfaa 14765 83fe3a31 f6aa5dc3ab966ebOe6af77f4c3abd2e90a 7f25949J] Document description:Exhibit(s) Original filename:nla Electronic document Stamp: [STAMP dcecfStamp _ID= 1027698419 [Date=10/20/2005] [FileNumber=982922-2 ] [622497129ge895907798799475139d6033f22ff9198f3989088e126a750c736a1db 451 abdb42bb91132df8592f14417e24a86fOeec63e6d07ff57926d7199fal]] Document description: Rule 7.1 corporate disclosure statement Original filename:nla Electronic document Stamp: [STAMP dcecfStamp_ID=1027698419 [Date=10/20/2005] [FileNumber=982922-3 ] [3fe 122167f66a4691 b074237741 B5b491e7gec7b14bbb8alf1aeee6c 1 b76c00741 e2f32e99bfa19d5c259c686bf6ef64188c978b7 d25eb3d5756ef382becd6c]] https:/lecf.pamd.uscourts.gov/cgi-binlDispatch.pl?90580068 8273561 10/20/2005 rel;111sylYania Middle District Version 2.5 ~j::.. .--- 3:02-at-6000 Notice will be electronically mailed to: 3:02-at-6000 Notice will be delivered by other means to: https://ecf.pamd.uscourts.goY/cgi-bin/Dispatch.pI?905 800688273561 Page 2 ofi . 10/20/2005 .... IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JEAN DORCE, Civil Action No.l:CV-05-2146 Plaintiff v. (Judge Kane) DAVID A. McCLAIN and JARO TRANSPORTATION SERVICES,: Inc., .Ji (\1-1--- Lf4 5---q C .~'1/ i I Defendants MEMORANDUM AND ORDER I. Introduction Pending before the Court is Plaintiffs motion to remand this action to the Court of Common Pleas of Cumberland County. (Doc. No. 11.) Defendant filed a timely brief in opposition, and thereafter Plaintiff filed a substantially untimely brief in support of the motion to remand. Notwithstanding the belated filing of Plaintiffs brief in support, upon review of the Complaint and the submissions of the parties, the Court fmds that the amount in controversy in this matter does not exceed the $75,000 threshold necessary for this Court to continue to exercise diversity jurisdiction pursuant to 28 D.S.C. ~ 1332. Accordingly, the Court finds that this action must be remanded to the Court of Common Pleas of Cumberland County. The Court briefly explains its decision below. II. Background On or about September 16, 2004, Plaintiff filed a Praecipe for a Writ of Summons in the Court of Common Pleas of Cumberland County, Pennsylvania and on or about September 21, 2005, Plaintiff filed a complaint with the Court of Common Pleas. Th.... ereaftel' on O~~o~er 20, CO~I" 1 f \ th9j"d\"",.erd ",a.h l -~ "~. ...Ic"'" ",J.".. "-'. ..",,,, ':. <,,"''',. 0 i".".'-; ..~,....c.".'.'" "1~"" '. '.~' I' hJ~\"" ".t. ,.,....j,j.. }\,.;-,:....\.:..'.>..,\i ^".,.,'. "0 '". .. ,~'(.", ,. . "';n' ~ 1 \.. ~~~''" d.: ~ 1;<. o~puty 0; ')rl< ,... ~ 2005, Defendant Jaro Transportation Services, Inc. filed a Notice of Removal removing the case to this Court. (Doc. No.1.) Plaintiff did not move to remand the action within 30 days, as required by 28 U.S.C. ~ 1447(c). Nevertheless, during a telephone status conference held with the parties on January 24, 2006, Plaintiff for the first time raised a challenge to this Court's jurisdiction over this action, and the Court granted Plaintiffs request to submit a motion to remand. Thereafter, on February 3,2006, Plaintiff moved to remand. Although Rule 7.5 of the Local Rules of this Court require that a movant submit a brief in support of its motion within 10 days of filing a motion, Plaintiff did not submit a brief in support until April 3, 2006 - fully two months after the motion was filed.) The Local Rules ofthis Court provide that a motion shall be deemed withdrawn if the movant fails to file a timely brief in support. See L.R. 7.5 ("Unless otherwise ordered by the court, if supporting legal briefs are not filed within the time provided in this rule such motion shall be deemed to be withdrawn."). However, notwithstanding Plaintiff's unexcused failure to comply with the Local Rules of this Court, the Court fmds itself constrained to consider the jurisdictional challenge presented in the motion. See 28 U.S.C. ~ 1447(c) (providing that a district court must remand a civil action "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction. . . ."); see also Samuel-Bassett v. KIA Motors, Inc., 357 F.3d 392,396 (3d Cir. 2004) (noting that 28 U.S.C. ~ 1441 "is to be strictly construed against removal, so that the Congressional intent to restrict federal diversity jurisdiction is Defendants filed a brief in opposition to the motion on February 21,2006. (Doc. No. 13.) 2 '4. /" honored.") (internal citation omitted). III. Discussion Removal of cases from state to federal courts is governed by 28 U.S,C. ~ 1441. In diversity suits, the requirement of an amount in controversy exceeding $75,000 applies to removed cases. 28 U.S,C. 1332. If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case must be remanded to state court. 28 D.S.C. ~ 1447(c). The Third Circuit has instructed that 28 U.S.c. ~ 1441 be construed strictly against removal so that Congressional intent to restrict federal diversity is honored. Samuel-Bassett, 357 F.3d at 396. In the case at bar, Plaintiff maintains that in his complaint, he specifically limited his demand for damages to $35,000, inclusive of attorneys' fees and court costs. Although Plaintiff's complaint does not contain a demand for a specific dollar figure, in both of the paragraphs constituting Plaintiff's prayer for relief, Plaintiff sought an award of damages "in an amount not more than the statutory limits for compulsory arbitration, including costs of this suit and attorney's fees." (Doc. No.1, Ex. A, CompI.) Plaintiff has represented, and Defendants apparently do not dispute, that compulsory arbitration in the Cumberland County Court of Common Pleas is required for cases seeking damages of $35,000 or less. Accordingly, Plaintiff claims that he voluntarily limited the amount of damages, and that he is bound by this self- limitation. Because he contends that he cannot recover damages in excess of $75,000, the Court 3 /' ,,' lacks diversity subject matter jurisdiction and must remand the case.2 Relying on Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir, 1993), Defendants assert that "[t]he general federal rule is to decide the amount in controversy from the complaint itself." (Doc. No. 13 at 3.) Defendants further contend that "[t]he amount in controversy is to be measured by 'a reasonable reading of the value of the rights being litigated. ", (ld.) (citinj;!; Angus, 989 F.2d at 146.) Referring to the more recently-articulated standard, Defendants concede that they "must show to a legal certainty that the amount in controversy exceed the statutory minimum." ilih at 4.)3 Defendants then recite a number of Plaintiff's allegations regarding his claimed injuries and conclude that "plaintiff's claims may exceed the jurisdictional amount of $75,000." ilih at 6) (emphasis added.) Defendants further argue that under Pennsylvania law, plaintiffs are not bound by the amount of damages pled in the ad damnum clauses of their complaints, and therefore Plaintiffs self-limitation on damages claimed is not controlling of the amount-in-controversy dispute. Upon consideration of the allegations set forth in the complaint, together with the legal arguments presented by the parties, the Court concludes that Defendants have failed to meet their burden of demonstrating to a legal certainty that the amount in controversy presented in this 2 Plaintiff's counsel has also represented that his client stipulated that he is not seeking damages of more than $35,000. (Doc. No. 15 at 3.) The Court does not fmd a stipulation on the record in this case. Furthermore, such a stipulation would be irrelevant to the question of whether the amount in controversy had been established. See Angus, 989 F 2d at 145 ("we note that Angus's stipulation that her damages do not exceed $50,000 has no legal significance because a plaintiff following removal cannot destroy federal jurisdiction simply by amending a complaint that initially satisfied the monetary floor."). 3 See Samuel-Bassett, 357 F.3d at 398 (announcing the rule in this circuit that a defendant must show to a legal certainty that the amount in controversy exceeds the statutory minimum). 4 ,. .' action exceeds the $75,000 threshold required for this Court to exercise subject matter jurisdiction. Although Defendants highlight several factual allegations in the complaint regarding Plaintiffs complaints of pain, his treatment regimen, and the fact that Plaintiff has been out of work since September 2002, the Court has been presented with no evidence or reasonable estimation regarding the value of Plaintiffs claims, costs, or damages he has incurred as a result of the alleged injuries. Indeed, after providing the Court with a summary of Plaintiff s claims, Defendants merely posit that "[t]aken as a whole, plaintiffs claims may exceed the jurisdictional amount of $75,000." (Id.) (emphasis added.) Following careful consideration, the Court cannot conclude to a legal certainty that the value of Plaintiff's claims set forth in his complaint equal or exceed $75,000.4 Accordingly, this action must be remanded to the Court of Common Pleas of Cumberland County. IV. Order And now, this 5th day of July, 2006, for the reasons set forth above, IT IS HEREBY ORDERED THAT Plaintiff's motion for remand (Doc, No. 11) is GRANTED. The Clerk of Court shall remand this action to the Prothonotary of the Court of Common Pleas of Cumberland County and close the file. Sf Yvette Kane Yvette Kane United States District Judge 4 Defendants also note that Plaintiffs counsel sent a demand letter in which he valued this case at $100,000. (Doc. No. 13, Ex. D.) However, the Third Circuit has held that district courts must look solely to the pleadings filed in state court to determine whether the action is removable. This demand letter is irrelevant for purposes of determining whether the amount in controversy has been reached, because the Court's inquiry is confmed to the allegations and amount in controversy alleged in the complaint. See Angus, 989 F.2d at 145. 5 1",) c~::> ,.-. ~.I c::....... t"",,) c::> -(-' C.,,) (.~ PennsyJvania Middle District Version 2.5 - Docket Report Page 1 of3 ., CLOSED, HBG u.s. District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:05-cv-02146-YK Internal Use Only Dorce v. McClain et al Assigned to: Honorable Yvette Kane Cause: 28:1332 Diversity-Petition for Removal =11 {'L{ - L(4'91 C~<v i I Date Filed: 10/20/2005 Jury Demand: Defendant Nature of Suit: 350 Motor Vehicle Jurisdiction: Diversity Plaintiff Jean Dorce represented by Karl E. Rominger Rominger, Bayley & Whare 155 S. Hanover Street Carlisle, PAl 70 13 717-241-6070 Email: karl@rominger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant David A. McClain represented by Gary N. Stewart Rawle & Henderson LLP 25 North Front Street 1 st Floor Harrisburg, P A 17101 717-234-7700 Email: gstewart@rawle.com LEAD ATTORNEY ATTORNEY TO BE NOTICED '(- ,. .'. ....,." """,~. iI'~ ,~,,,,~1>;,t..;t-\_: '..'., e"'."'I':"":" .,,),. "'('\' , .' - . ()' /1 :,,,,~,":,...,. \ \ .1.5 ....~'". ......~..: ""'.'.'" .....,.,,'"....,:'.. ~ ......... O. ~ ............., ',.' '.' ';;" ;. , '. '1< ,,',:,. ~~ F,,,-rli~,.J ~ ~;Jp\J~)~ \ji/:VH~ Defendant J aro Transportation Services, Inc. represented by Gary N. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed 10/20/2005 # "1 Docket Text NOTICE OF REMOVAL by David A. McClain, Jaro Transportation Services, Inc. (Filing fee $ 250 receipt number 333 103649), filed by David A, McClain, Jaro Transportation Services, Incu (Attachments: # 1 Civil Cover Sheet # 2 Exhibit A)( crh, ) (Entered: 10/20/2005) https://ecf.pamd.circ3.dcn/cgi-bin/DktRpt.pl?6757891 01199748-L _923_0-1 11/15/2006 Pen11&ylvania Middle District Version 2.5 - Docket Report 1-- Page 2 of3 10/20/2005 ~2 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1. (crh,) (Entered: 10/20/2005) 10/20/2005 ~3. Letter from Court addressed to counsel, dated 10/20/05, regarding case assignment and procedures. (sc) (Entered: 10/20/2005) 10/26/2005 ~~ COUNTY COURT RECORD from Court of Common Pleas of Cumberland County Pennsylvania. (crh, ) (Entered: 10/26/2005) 10/28/2005 ~.s. ANSWER to Complaint with Jury Demand by Jaro Transportation Services, Inc..(Stewart, Gary) (Entered: 10/28/2005) 11/30/2005 QQ SCHEDULING ORDER - IT IS HEREBY ORDERED that a Case Management Conference is set for 1/24/2006 at 10:00 AM via telephone. Pltfs cnsl shall initiate the call. The Joint Case Mgmt plan is due by 1/20/06. Signed by Judge Yvette Kane on November 30,2005. (sc) (Entered: 11/30/2005) 01/13/2006 Q1 NOTICE of Appearance by Gary N. Stewart on behalf of David A. McClain (Stewart, Gary) (Entered: 01/13/2006) 01/20/2006 QB. CASE MANAGEMENT PLAN by David A, McClain, Jaro Transportation Services, Inc.. (Attachments: # 1 Supplement)(Stewart, Gary) (Entered: 01/20/2006) 01/24/2006 ~2 Affirmative Defenses and ANSWER to Complaint with Jury Demand by David A. McClain.(Stewart, Gary) (Entered: 01/24/2006) 01/24/2006 10 Minute Sheet for proceedings held before Judge Yvette Kane: Telephone Conference held on 1/24/2006. Rrnks: Pltfmay file a motion to remand due to jurisdictional issues. Dft cnsl states there is a 30 day filing rule for remanding cases to the state court. Parties are given 10 days to file their Joint Case Mgmt Plan and to file a mtn to remand if they choose to do so. (sc) (Entered: 01/25/2006) 02/03/2006 ~11 MOTION to Remand by Jean Dorce.(Rominger, Karl) (Entered: 02/03/2006) 02/06/2006 Q12 CASE MANAGEMENT PLAN by David A. McClain, Jaro Transportation Services, Ine.. (Attachments: # 1 Exhibit(s) A)(Stewart, Gary) (Entered: 02/06/2006) 02/21/2006 ~13 REPL Y BRIEF re 11 MOTION to Remand filed by David A, McClain, Jaro Transportation Services, Inc.. (Attachments: # 1 Exhibit(s) A - D) (Stewart, Gary) (Entered: 02/21/2006) 02/28/2006 Q14 WITHDRAWAL OF ATTORNEY APPEARANCE - on behalf of David A. McClain and Jaro Transportation Services, me.. (Darby, Johnna) (Entered: 02/28/2006) 04/03/2006 Q15 BRIEF IN SUPPORT re 11 MOTION to Remand filed by Jean Dorce. (Rominger, Karl) (Entered: 04/03/2006) 07/05/2006 Q16 ORDER - IT IS HEREBY ORDERED that Pltfs Motion for Remand is GRANTED, The Clerk of Court shall REMAND this action to the https://ecf.pamd.circ3.dcnlcgi-binlDktRpt.pl?6757891 01199748-L _923_0-1 11/15/2006 Penns~vania Middle District Version 2.5 - Docket Report Page 3 of3 ~ Prothonotary of the Court of Common Pleas of Cumberland County and CLOSE the file. Signed by Judge Yvette Kane on July 5, 2006. (sc) (Entered: 07/06/2006) https://ecf.pamd.circ3.dcnlcgi-bin/DktRpt.pl?6757891 01199748-L _923_0-1 11/15/2006 C) -Tl --1 -r" 1"-) <::) ,,=-\ ..0 ':D (J'i -< 01/03/2~07 14:33 ~ 7172347710 RAWLE AND HENDERSON PAGE 04/04 ~ , RA WLE & HENDERSON tLr By: Gary N. Stewart, Esquire Identification No.: 67353 Michael T. Traxler, Esquire Identification No.: 90961 2S North Front Street, First Floor Harrisburg, Pennsylvania 17101 (71 7) 234-7700 JEAN DORCE Attorneys for Defendants, Jaro Transportation Services, Inc, and David A. McClain COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff, CIVIL ACTION NO,: 04-4459 VS. DAVID A. MCCLAIN and lARO TRANSPORT A nON SERVICES, INC. Defendants. PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter Settled, Discontinued and Ended, with Prejudice. N. Ste , Esquire Attorney for Defendants, Jaro Transportation Services, Inc. and David A. McClain ROMINGER & WHARE By: / Karl E. Rominger, Esquire Attorneys for Plaintiff Jean DOlce 1401383 v,l AI- I ROMINGER & WHARE Attorneys at Law Karl E. Rominger Michael J. Whare Michael O. Palermo, Jr Leslie A. Tomeo* * Also admitted in New Jersey January 4, 2007 Michael T. Traxler, Esquire RA WLE & HENDERSON, LLP 25 North Front Street, First Floor Harrisburg, Pennsylvania 17101 RE: Dorce v. McClain et al Docket No.: 04-4459 Dear Attorney Traxler: Enclosed please find an original signed Praecipe to Settle, Discontinue and End for the above referenced matter. Should you have any questions, please do not hesitate to contact the office. Sincerely, I E. Rominger, Esquire KER/tlp Enclosure 155 South Hanover Street, Carlisle, Pennsylvania 17013 · Tel: (717) 241-6070 ~ Fax: (717) 241-6878 www.romingerlaw.com ADVOCACY · ADVICE · ANSWER5 .....-., () ,...", = 0 c: = "'T1 s:: --.I ')[0 C- ~~ rr1rn )> 2::1' :z ?5.~, I :B% \.0 0 f<C: _.~ . )> -0 15 :ri z l-,~ :.J: ~7C5 .-- ( ) Pc: w Om 2 ~ :;I 0 ... N -<