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HomeMy WebLinkAbout11-8674SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff FILED-;OFFICE PE PROTHONOTARY Jody S Smith Chief Deputy 2811 DEC 22 PM 2; 28 Richard W Stewart Solicitor OJMBERLAND COUNTY PENNSYLVANIA Deborah O'Brien vs. High Peformance Vehicle Equipment (et al.) Case Number 2011-8674 SHERIFF'S RETURN OF SERVICE 11/28/2011 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: High Performance Vehicle Equipment, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Northampton County, Pennsylvania tc serve the within Complaint and Notice according to law. 11/28/2011 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: Robert Nicols, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Northampton County, Pennsylvania to serve the within Complaint and Notice according to law. 12/05/2011 01:00 PM - Northampton County Return: And now December 5, 2011 at 1300 hours I, Randall P. Miller, Sheriff of Northampton County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Robert Nicols by making known unto Carol Harke, adult in charge at 800 Grant Street, Easton, Pennsylvania 18042 its contents and at the same time handing to her personally the said true and correct copy of the same. 12/05/2011 01:00 PM - Northampton County Return: And now December 5, 2011 at 1300 hours 1, Randall P. Miller, Sheriff of Northampton County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: High Performance Vehicle Equipment by making known unto Carol Harke, adult in charge for High Performance Vehicle Equipment at 800 Grant Street, Easton, Pennsylvania 18042 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $44.44 December 16, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF ?? Gou- J 1 tr &-e; M e SGa. 6k;. JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 jjs@jdsw.com DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, Individually Plaintiffs v. i- ILED-Dr I: IGE Qf THE PROTHONOTARY 2012 JAN 18 PM 1: 30 CUMBERL YL Attorneys for Defendants PENN Nicols and High Performance W hicle Equipment, Incorporated ROBERT NICOLS, High Performance Vehicle Equipment, Incorporated and Property & Casualty Insurance Company of Hartford Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8674 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of the Defendants, Robert Nicols and High Performance Vehicle Equipment, Incorporated, in the above- captioned matter. Respectfully submitted, Date: January 2012 477020 OHNSQN, DUFFIENEWART & WEIDNER J?ffj?rrVJ. Shipman; esquire A r y I.D. No. 51785 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendants, Nicols and HPVE, Inc. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Entry of Appearance has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on January 17, 2012: Deryck Henry, Esquire 5621 North Front Street Harrisburg, PA 17110 (Counsel for Plaintifo Property & Casualty Insurance Company of Hartford 4040 Vincennes Circle Indianapolis, IN 46268 N, DUFFIE, STEWART & WEIDNER J. Shi r 1. JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 jjs@jdsw.com DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, Individually Plaintiffs V. ROBERT NICOLS, High Performance Vehicle Equipment, Incorporated and Property & Casualty Insurance Company of Hartford Defendants Attorneys for Defendants Robert Nicols and High Performance Vehicle Engineering, Incorporated IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8674 Civil NOTICE TO PLEA TO: Deborah O'Brien and Tracy O'Brien c/o Deryck Henry, Esquire 5621 North Front Street Harrisburg PA 17110 CIVIL ACTION - LAW JURY TRIAL DEMANDI?D r ,, AND NOW, this `day of January, 2012, you are hereby notified to plead responsively within twenty (20) days of the date of service hereof, or judgment may be entered against you. JOHNSON, DUFFIE, STEWART & WEIDNER J e fbK J. ShipmaV A orneys for Defendants Nicols and HPVE, Inc. JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 jjs@jdsw.com DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Ettate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, Individually Plaintiffs V. ROBERT NICOLS, High Performance Vehicle Equipment, Incorporated and Property & Casualty Insurance Company of Hartford Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS ROBERT NICOLS AND HIGH PERFORMANCE VEHICLE EQUIPMENT, INCORPORATED TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, Robert Nicols and High Performance Vehicle Engineering, Incorporated, by and through his counsel, Jefferson J. Shipman and Johnson, Duffie, Stewart & Weidner, and file the following Answer and New Matter to Plaintiffs' Complaint: 1. Admitted upon information and belief. 2. Admitted upon information and belief. Attorneys for Defendants Robert Nicols and High Performance Vehicle Engineering, Incorporated IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8674 Civil 3. Admitted. 4 After reasonable investigation, the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 4, and the same are therefore denied. 5. After reasonable investigation, the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 5, and the same are therefore denied. 6. Admitted. 7. Denied. The correct name of the Defendant is High Performance Vehicle Engineering, Inc. (HPVE). 8. After reasonable investigation, the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 8, and the same are therefore denied. 9. Admitted. 10. Admitted. 11. Admitted only that on February 24, 2011 the Nicols' vehicle left the northbound lane of 1-81 and crossed into the southbound lanes. After reasonable investigation, the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments contained in paragraph 11, and the same are therefore denied. 12. Denied. The averments contained in paragraph 12 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. COUNT 1- WRONGFUL DEATH Estate of Robert O'Brien v. Robert Nicols 13. Mr. Nicols incorporates herein by reference his answers to paragraphs 1 through 12 above as though fully set forth herein at length. 14. Denied. The averments contained in paragraph 14 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 15. Denied. The averments contained in paragraph 15 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 16. Denied. The averments contained in paragraph 16 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 17. Denied. The averments contained in paragraph 17 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 18. Denied. The averments contained in paragraph 18 and subparagraphs (a) through (h) are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. (a) Denied. It is specifically denied that Mr. Nicols was negligent in allegedly failing to stop his vehicle before colliding with the O'Brien vehicle; (b) Denied. it is specifically denied that Mr. Nicols failed to keep alert and maintain a proper lookout for the presence of other motor vehicles; (c) Denied. It is specifically denied that Mr. Nicols failed to keep adequate and proper control over his vehicle; (d) Denied. It is specifically denied that Mr. Nicols operated his vehicle in a reckless manner and with careless disregard for the rights and safety of others; (e) Denied. It is specifically denied that Mr. Nicols operated his vehicle in a manner that endangered person and property in violation of the motor vehicle code; (f) Denied. It is specifically denied that Mr. Nicols was negligent in allegedly driving on the wrong side of the roadway; (g) Denied. It is specifically denied that Mr. Nicols was driving his vehicle at an unsafe speed in violation of the Motor Vehicle Code; and (h) Denied. It is specifically denied that Mr. Nicols was driving in a careless manner in violation of the Motor Vehicle Code. 19. Denied. The averments contained in paragraph 19 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. COUNT II - SURVIVAL ACTION Estate of Robert O'Brien v. Robert Nicols 20. Mr. Nicols incorporates herein by reference his answers to paragraphs 1 through 19 above as though fully set forth herein at length. 21. Denied. The averments contained in paragraph 21 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 22. Denied. The averments contained in paragraph 22 are, in part, conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, Mr. Nicols is without sufficient knowledge or information to form a belief as to the truth of the remaining averments contained in paragraph 22, and the same are therefore denied and strict proof is demanded at the time of trial. COUNT III - LOSS OF CONSORTIUM Deborah O'Brien v. Robert Nicols 23. Mr. Nicols incorporates herein by reference his answers to paragraphs 1 through 22 above as though fully set forth herein at length. 24. Denied. After reasonable investigation, Mr. Nicols is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 24, and the same are therefore denied. 25. Denied. The averments contained in paragraph 25 are, in part, conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, Mr. Nicols is without sufficient knowledge or information to form a belief as to the truth of the remaining averments contained in paragraph 25, and the same are therefore denied and strict proof is demanded at the time of trial. 26. Denied. The averments contained in paragraph 26 are, in part, conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, Mr. Nicols is without sufficient knowledge or information to form a belief as to the truth of the remaining averments contained in paragraph 26, and the same are therefore denied and strict proof is demanded at the time of trial. COUNT IV - VICARIOUS LIABILITY Estate of Robert O'Brien v. Robert Nicols and HPVE 27. The answering Defendants incorporate herein by reference the answers to paragraphs 1 through 26 above as though fully set forth herein at length. 28. Denied. The averments contained in paragraph 28 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 29. Denied. The averments contained in paragraph 29 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 30. Admitted. 31. Admitted. 32. Denied. The averments contained in paragraph 32 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. COUNT V Estate of Robert O'Brien v Property & Casualty Insurance Company of Hartford 33. The answering Defendants incorporate herein by reference their answers to paragraphs 1 through 32 above as though fully set forth herein at length. 34-40. The averments contained in paragraphs 34 through 40 are directed to another party and, accordingly, no response is required by the answering Defendants. WHEREFORE, the answering Defendants, Robert Nicols and High Performance Vehicle Engineering, Incorporated, respectfully request that judgment be entered in their favor and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER 41. That Plaintiffs' alleged cause of action may be barred by the Pennsylvania Motor Vehicle Financial Responsibility Law. 42. That the Plaintiffs have failed to properly serve the Complaint. 43. That the Plaintiff has failed to state a cause of action for which relief may be granted. 44. That if it should be found that there was any negligence on the part of the answering Defendants, which is denied, then in that event, any such negligence was not a factual cause of the happening of the accident and Plaintiffs' injuries and damages. 45. That the Plaintiffs' alleged cause of action may have been caused by third parties or entities not presently involved in this action. 46. That Plaintiffs' alleged cause of action may have been caused by a medical emergency. 47. That Plaintiffs' alleged cause of action may be barred by an intervening superseding cause. 48. That Plaintiffs may have failed to mitigate their alleged injuries and damages. Date: January , 2012 477529 Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER r' A,-;4 le -11r J rs n V. Shipman squire A orney I. D. No. 51785 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendants, Nicols and HPVE, Inc. r? L? VERIFICATION The undersigned verifies that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsifications to authorities. Frank Nester Date: Z- n V e4 Z CJ Z o/ Z, 0 477563 0 VERIFICATION PURSUANT TO PA. R.C.P. NO. 1024(c) Jefferson J. Shipman, Esquire, states that he is the attorney for the parties filing the foregoing Answer and New Matter of Defendants Robert Nicols and HPVE and that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Jeffe on J. hipman, squire Atto ey for Defendant Robert Nicols Date: January , 2012 477570 CERTJFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer and New Matter of Defendants Robert Nicols and HYPE, Incorporated has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on January 3 1, 2012: Deryck Henry, Esquire 5621 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) Property & Casualty Insurance Company of Hartford 4040 Vincennes Circle Indianapolis, IN 46268 JOHNSON, DUFFLE, STEWART & WEIDNER Je rs . Shipma IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW By: Deryck Henry Attorney for Plaintiffs DEBORAH O'BR1EN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, individually NO. 11-8674 Civil Plaintiffs, JURY TRIAL DEMANDED ? C, - V. a C= r-nuO -n Robert Nicols, High Performance Vehicle Equipment, =M rr, -,r- Incorporated and Property & Casualty Insurance Chr ;0CD Company of Hartford r.. - ?p x 0- Defendants o xF ANSWER OF PLAINTIFFS DEBORAH O 'BRIEN AND TRACY O'BRIEN? AND NOW, come Plaintiffs Deborah O'Brien and Tracy O'Brien, by and through their attorney, Deryck Henry, and file the following Answer to Defendants, Robert Nicols and High Performance Vehicle Engineering, Incorporated: 41. Denied. The averment contained in paragraph 41 is a conclusion of law to which no response is required. If a response is deemed to be required, the averment contained therein is specifically denied. 42. Denied. The Complaint was served in compliance with the rules of civil procedure. 43. Denied. Plaintiffs' claims include Wrongful Death, Survival Action, Loss of Consortium and Vicarious Liability, all of which are recognized causes of action in which relief can be granted. 44. Denied. The averments contained in paragraph 44 are conclusions of law and facts to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 45. Denied. There are no other parties that were involved in the accident that gave rise to the instant action. 46. Denied. The decedent did not suffer a medical emergency. 47. Denied. There were no intervening, superseding events that contributed to the death of Robert O'Brien. 48. Denied. Robert O'Brien died at the scene of the accident and was clearly unable to mitigate his death. Respectfully submitted, 19 Date: -,,'/ , V I2J?? By: Deryck Henry, Esquire Attorney I.D. No: 78784 5621 North Front Street Harrisburg, PA 17110 (717) 215-2550 VERIFICATION Deborah O'Brien verifies that the statements made in the foregoing Answer are true and correct to the best of her knowledge, information and belief The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4909 relating to unswom falsifications to authorities. i Deborah O'Brien ?/? tr4966£LLtr8 'dJl?? Wd t0 50 56-ga?-Z60Z CERTIFICATE OF SERVICE The undersigned hereby certifies that he did on this date serve a copy of the foregoing document upon the other parties by causing the same to be deposited in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania, on February I G , 2012. Jefferson J. Shipman, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Property & Casualty Insurance Company of Hartford I Hartford Plaza Hartford, CT 06155 h=am-. Deryck Henry ";Ur?Rl t,D COUNTY PCt;h,SYLVAwA LAW OFFICES OF MASON & EISEMAN BY: Mark R. Bosniak, Esquire I.D.# 32128 1515 Market Street, Suite 1802 Philadelphia, PA 19102 mark. bosn iaka-thehartford . com (215) 446-7665 DEBORAH O'BRIEN and TRACY O'BRIEN Administrators of the Estate of Robert O'Brien, deceased and DEBORAH O'BRIEN, individually TO: ALL PARTIES You are hereby notified to plead to the enclosed within twenty (20) days from service hereof or a Default Judgment may be entered against you. Attorney for Defendant Property & Casualty Insurance Company of Hartford COURT OF COMMON PLEAS CUMBERLAND COUNTY V. ROBERTNICOLS, HIGH PERFORMANCE EQUIPMENT, INC., and PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD NO: 2011-8674 (civil) ANSWER OF DEFENDANT. PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NEW MATTER CROSS-CLAIM DIRECTED AGAINST CO-DEFENDANTS 1-8. The allegations contained in paragraphs one through eight, inclusive, are deemed denied and at issue without specific answer pursuant to Pa. R.C.P. 1029(e). 9-12. Denied. After reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraphs and the same are, therefore, denied. Strict proof is demanded at the time of trial. 13. Answering Defendant hereby incorporates by reference its answers to paragraphs one through 12 above as though fully set forth herein at length. 14-16. The allegations contained in paragraphs 14 through 16, inclusive, are deemed denied and at issue without specific answer pursuant to Pa. R.C.P. 1029(e). 17-19. The allegations contained in the corresponding paragraphs and the subparts thereto constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. 20. Answering Defendant hereby incorporates by reference its answers to paragraphs one through 19 above as though fully set forth herein at length. 21. The allegations contained in paragraph 21 are deemed denied and at issue without specific answer pursuant to Pa. R.C.P. 1029(e). 22. The allegations contained in the corresponding paragraph and the subparts thereto constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. To the extent that said allegations do not constitute conclusions of law, after reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraph and the same are, therefore, denied. Strict proof is demanded at the time of trial. 23. Answering Defendant hereby incorporates by reference its answers to paragraphs one through 22 above as though fully set forth herein at length. 24. The allegations contained in paragraph 24 are deemed denied and at issue without specific answer pursuant to Pa. R.C.P. 1029(e). 25-26. The allegations contained in the corresponding paragraphs and the subparts thereto constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. To the extent that said allegations do not constitute conclusions of law, after reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraphs and the same are, therefore, denied. Strict proof is demanded at the time of trial. 27. Answering Defendant hereby incorporates by reference its answers to paragraphs one through 26 above as though fully set forth herein at length. 28-29. The allegations contained in the corresponding paragraphs constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. To the extent that said allegations do not constitute conclusions of law, after reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraphs and the same are, therefore, denied. Strict proof is demanded at the time of trial. 30-31. Denied. After reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraphs and the same are, therefore, denied. Strict proof is demanded at the time of trial. 32. The allegations contained in the corresponding paragraph constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. 33. Answering Defendant hereby incorporates by reference its answers to paragraphs one through 32 above as though fully set forth herein at length. 34. Admitted. 35. Admitted. By way of further answer, it is denied that the tortFeasor automobile insurance policy provided liability coverage insufficient to compensate Robert O'Brien for his damages. 36. Admitted. 37. Denied. After reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraph and the same are, therefore, denied. Strict proof is demanded at the time of trial. By way of further answer, it is denied that the value of the subject claim exceeds the policy limit of the automobile coverage of all other Defendants. 38. The allegations contained in the corresponding paragraph constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. 39. Admitted. By way of further answer, said policy speaks for itself. 40. The allegations contained in the corresponding paragraph constitute conclusions of law for which no responsive pleading is required, and they are, therefore, denied. To the extent that said allegations do not constitute conclusions of law, after reasonable investigation, answering Defendant lacks information sufficient to form a belief as to the truth or falsity of the averments contained in the corresponding paragraph and the same are, therefore, denied. Strict proof is demanded at the time of trial. WHEREFORE, answering Defendant demands judgment in its favor. NEW MATTER 41. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 42. Plaintiff has failed to mitigate his/her damages. 43. If Plaintiff sustained the injuries and damages as alleged in his/her Complaint, then same were caused by other entities or parties over which answering Defendant had no control. 44. Plaintiffs claims are barred, in whole and/or part, by the appropriate statute of limitations. 45. Plaintiff voluntarily adopted a dangerous and hazardous method or manner of performing the actions that he was then undertaking when there was a said method available and he, thereby, assumed the risk of injury in performing his actions. 46. Plaintiff's claims are barred, or must be reduced, as a result of Plaintiff's own negligence, which was the proximate cause of the incident described in Plaintiff's Complaint, pursuant to the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7102. 47. Plaintiff's claims are barred and/or limited by the Motor Vehicle Financial Responsibility Law, 75 Pa. C. S. §1701, et seq. 48. This Court lacks jurisdiction over the subject matter of the within action. 49. If Plaintiff sustained the injuries and damages as alleged in his/her Complaint, then same were not proximately caused by any action or failure to act on behalf of answering Defendant. 50. All or portions of Plaintiff's claim for underinsured motorist benefits are barred by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law and/or the terms of the applicable policy of insurance for failure to prove that an underinsured motorist committed a tortious act against Plaintiffs and, thereby, causing the injuries and damages as alleged in Plaintiffs Complaint and, therefore, all such allegations in Plaintiff's Complaint being expressly denied by answering Defendant. 51. Answering Defendant believes and, therefore, avers that if Plaintiffs sustained the injuries and damages as alleged in the Plaintiffs' Complaint, the amount of the compensatory injuries and/or damages that Plaintiff is legally entitled to recover under the terms of the applicable policy provisions from the alleged underinsured motorist are in controversy and expressly disputed in whole or in part by answering Defendant and, therefore, answering Defendant is under no duty to pay any amount of underinsured motorist benefits in whole or in part to Plaintiffs. 52. Answering Defendant did not breach any duty allegedly owed to Plaintiffs as there is a legitimate dispute as to the entitlement of Plaintiffs to the amount requested under the terms of his policy with answering Defendant and answering Defendant was under no duty to provide any payments benefits, in whole or in part, to Plaintiff for the damages alleged in his Complaint. 53. Any and all claims of the Plaintiff for underinsured motorist benefits from answering Defendant are barred by the applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law because Plaintiffs are not legally entitled to receive amounts for any or all of the damages alleged in the Complaint from the underinsured motorist. 54. Any and all claims of the Plaintiffs for products, services and accommodations for (a) professional medical treatment and care; (b) emergency health services; (c) medical and vocational rehabilitation services; (d) working losses, past, present or future; and (e) any and all other economic losses are not recoverable from the Defendant under the provisions of the foregoing Motor Vehicle Insurance Law of the Commonwealth of Pennsylvania. 55. Pursuant to Pa. R.C.P. 1030, the Defendant herein specifically pleads the affirmative defenses of assumption of the risk, contributory negligence, payment release, res judicata, statute of limitations and immunity from suit. 56. Plaintiffs claims may be limited or precluded by the provisions of his Property & Casualty Insurance Company of Hartford insurance policy which was in effect on the date of the accident. Property & Casualty Insurance Company of Hartford raises all defenses available to it under the insurance policy. WHEREFORE, answering Defendant demands judgment in its favor. NEW MATTER CROSS-CLAIM DIRECTED AGAINST ALL CO-DEFENDANTS 57. Pursuant to Pa. R.C.P. 1031.1, answering Defendant herein cross-claims against the co- Defendants, Robert Nichols, High Performance Vehicle Equipment, Incorporated. But, if the Plaintiffs are entitled to a recovery based upon the allegations in the Complaint, said recovery would be based upon the acts or omissions of the co-Defendants, Robert Nichols, High Performance Vehicle Equipment, Incorporated, their agents, servants, workmen and/or employees. 58. Any recovery which Plaintiffs may be entitled to is based upon the acts and omissions of the co-Defendants, Robert Nichols, High Performance Vehicle Equipment, Incorporated, their agents, servants, workmen and/or employees, these actions and omissions are primary and active. 59. Any recover which Plaintiffs may be entitled to is based upon the acts and omissions of the co-Defendants, Robert Nichols, High Performance Vehicle Equipment, Incorporated, their agents, servants, workmen and/or employees, who are solely responsible for the Plaintiffs' injuries and damages. 60. Pursuant to the principals of equity, the statutory and common law, Defendant, seeks subrogation, indemnification and contribution for all monies paid to Plaintiff resulting from the co- Defendants, Robert Nichols, High Performance Vehicle Equipment, Incorporated's negligence. WHEREFORE, answering Defendant demands judgment in its favor. Respectfully submitted, LAW OFFICES OF MASON & EISEMAN BY: Mark R. B sniak, Esquire Attorney for Defendant Property & Casualty Insurance Company of Hartford MRB/Ip 15-00548825.doc VERIFICATION Mark R. Bosniak, Esquire, hereby deposes and says that he is the attorney for Defendant in the within matter; that he is authorized to sign this on behalf of said party; that he has read the foregoing Answer with New Matter and New Matter Crossclaim to Plaintiff's Complaint and finds that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. j r DATE: April 2, 2012 JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 jjs@jdsw.com Attorneys for Defendants E1`LAIU ert Nicols and High Performance P `'IS`?I-VA" ehicle Engineering, Incorporated DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, Individually Plaintiffs V. ROBERT NICOLS, High Performance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8674 Civil CIVIL ACTION - LAW Vehicle Equipment, Incorporated and JURY TRIAL DEMANDED Property & Casualty Insurance Company of Hartford Defendants ANSWER OF DEFENDANTS ROBERT NICOLS AND HIGH PERFORMANCE VEHICLE EQUIPMENT, INCORPORATED TO CROSS CLAIM OF DEFENDANT HARTFORD AND NOW, come the Defendants, Robert Nicols and High Performance Vehicle Engineering, Incorporated, by and through their counsel, Jefferson J. Shipman and Johnson, Duffie, Stewart & Weidner, and file the following Answer to Cross Claim of Defendant Hartford: 57-60. Denied. The averments contained in paragraphs 57-60 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. Respectfully submitted, Date: April Jc' , 2012 490245 N, DUFFIE, STEWART & WEIDNER jerrerson j. bnipman, Csquire Attorney I.D. No. 51785 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendants, Nicols and HPVE, Inc. VERIFICATION PURSUANT TO PA. R.C.P. NO. 1024(c) Jefferson J. Shipman, Esquire, states that he is the attorney for the parties filing the foregoing Answer of Defendants Robert Nicols and HPVE to Cross Claim of Hartford and that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Je er n J. Shipman, Esquire Attorney for Defendant Robert Nicols and HPVE Date: April , 2012 490249 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer to Cross Claim of Hartford has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on April .r, 2012: Deryck Henry, Esquire 5621 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) Mark R. Bosniak, Esquire Law Office of Mason & Eiseman 1515 Market Street, Ste. 1802 Philadelphia, PA 19102 (Counsel for Defendant Hartford) JOHNSON, DUFFIE, STEWART & WEIDNER 4rso 1li2 J x..51::3 7 P,1{ I I L, PEtt SYLVAI!IA JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 jjs@jdsw.com DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, Individually Plaintiffs V. ROBERT NICOLS, High Performance Vehicle Equipment, Incorporated and Property & Casualty Insurance Company of Hartford Defendants Attorneys for Defendants Robert Nicols and High Performance Vehicle Equipment, Incorporated IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8674 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendants hereby certify that: 1) A Notice of Intent to serve the subpoena, with a copy of the subpoena attached thereto, was mailed or delivered to each party at least 20 days prior to the date on which the subpoena was sought to be served; 2) A copy of the Notice of Intent, including the proposed subpoena, is attached to this certificate; 3) No objection to the subpoena has been received, the twenty day waiting period has passed; and 4) The subpoena to be served is identical to the subpoena attached to the Notice of Intent. Date: June 2012 :499879 22740-2904 JOHNSON, DUFFIE, STEWART & WEIDNER By: fferson J. Shipman, Esquire Attorney I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendants Robert Nichols and High Performance Vehicle Equipment, Incorporated JOHNSON, DUFRE, STEWART S WEVNER By Jefferson J Shipman I D No 51785 301 Market Street P O Box 108 Lemoyne PA 17043-0109 (717) 761-4540 lls@jdsw com DEBORAH O BRIEN and TRACY O BRIEN Admirostretors of the Estate of ROBERT O BRIEN Deceased ' and DEBORAH O BRIEN Individually Plainbffs v ROBERT NICOLS High Attorneys for Defendants Robert Nicols and High Performance Vehicle Equipment Incorporated IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO 11-8874 Cml CIVIL ACTION - LAW Vehrde Equipment Incorporated and JURY TRIAL DEMANDED Property 8 Casualty Insurance Company of Hartford Defendants WAIVER OF 20.0 YSWPWM QMTWN PER10D I, Mark R Bosn+ak Esquire, agree to waive the 20-day objection period for the notice of intent to subpoena the medical records from (1) Pennsylvania State Police Rafe .? 'Z. By G Mark R Bosniek, Esquire COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Deborah O'Brien and Tracy O'Brien, Administrators of the Estate of Robert O'Brien, et al Plaintiff File No. 11-8674 Civil vs. Robert Nicols, High Performance Vehicle Equipment, et a] Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: COMMISSIONER FRANK NOONAN, PENNSYLVANIA STATE POLICE; Custodian of Records, 1800 Elmerton Ave, Harrisburg, PA 17110-9758 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Your complete file, including but not limited to accident reports, supplemental accident reports, correspondence, notes, color photographs on CD, videos, news releases, diagrams measurements or any other documents in regard to Incident No. HO1-2008796 which occurred on 02/24/2011 on Interstate 81 in Hampden Township, Cumberland County, Pennsylvania. at Johnson, Duffie, Stewart & Weidner, PC, 301 Market St., Lemoyne, PA 17043 (Address) 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 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: Jefferson 7. Shipman ADDRESS: Johnson Duffie Stewart & Weidner, PC 301 Market Street Lemoyne, PA 17403 TELEPHONE: 717-761-4540 SUPREME COURT ID # 51785 ATTORNEY FOR: n.?dmM bndHSWMbmmsVa6cb6 Date: -I? I U Seal of the Court BY THE COURT. L Prothonotary, Civil Division Deputy CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the Certificate Prerequisite of Subpoenas upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 1/* day of June, 2012, addressed to the following: Deryck Henry, Esquire 5621 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) Mark R. Bosniak, Esquire Law Office of Mason & Eiseman 1515 Market Street, Ste. 1802 Philadelphia, PA 19102 (Counsel for Defendant Hartford) JOHNSON, DUFFIE, STEWART & WEIDNER By:. &' Ima fi, (a??r Barbara A. Carroll, Paralegal to Jefferson J. Shipman, Esquire T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, individually • NO Plaintiffs, I 1-8674 CIVIL v. ROBERT NICOLS, High Performance Vehicle Equipment, Incorporated and Property & Casualty Insurance Company of Hartford Defendants. ~ c~ 3 :v JURY TRIAL DEMA ~ vy' ~ C?~ .`~ ~~ ~ ~~ ~ ~ _ ~` ~ :. . --} ~- PETITION FOR SETTLEMENT CONFERENCE --~ °'' DERYCK HENRY, counsel for the plaintiffs in the above action, respectfully represents that: I . Plaintiffs and Defendants have made several attempts to resolve this matter without the involvement of the court. 2. Plaintiffs have reached an amicable settlement with the Properly & Casualty Insurance Company of Hartford. 3. Settlement discussions with all other defendants have broken down. 4. Plaintiffs and remaining Defendants are no longer attempting to amicably resolve this matter without the court's involvement. w' -~ ~,.-~~ r~7 ~~ ~~ ~..~ ~.. ~, 5. This matter is one that could be settled with the court's involvement. 6. This matter is one that could be resolved before a trial commences. WHEREFORE, this petitioner prays this Honorable Court demand the appearance of defense counsel and his clients to a settlement conference. Dated: August 24, 2012 --=L., Deryck Henry Attorney 1.D. No: 78784 5621 North Front Street Harrisburg, PA 17110 (7l7) 215-2550 y ~, CERTIFICATE OF SERVICE AND NOW, this~~..~day of August, 2012, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties by causing same to be placed in the U.S. mail, postage prepaid upon the following: Jefferson J. Shipman, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Robert Nicols and High Performance Equipment, Incorporated Deryck Henry DEBORAH O'BRIEN and, TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, And DEBORAH O'BRIEN, Individually, Plaintiffs v. ROBERT NICOLS, HIGH PERFORMANCE VEHICLE EQUIPMENT, INC., and PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-8674 CIVIL TERM IN RE: PETITION FOR SETTLEMENT CONFERENCE ORDER OF COURT AND NOW, this 7th day of November, 2012, after having had a brief settlement conference and the parties not being able to agree to a settlement at this time and the parties indicating that it may facilitate their settlement negotiations to establish deadlines for discovery in the trial in this matter, it is hereby ordered as follows: discovery shall be closed by both parties on or before December 14, 2012; Plaintiffs' expert reports are due on or before December 14, 2012, Defendants' expert reports are due on or before January 7, 2013, any motions in limine or dispositive motions are to be filed by January 11, 2013; pretrial conference is set for February 13, 2013; trial shall be scheduled for February 25, 2013. After any motions in limine or dispositive motions, any responses thereto shall be filed by January 18, 2013. By the Court , ~ ~ ~' W ~ ,.~ ~ ~ ~ ristyl e L. Peck J. ~ ~ c a-,-~ , ~ D~ ,. ~ C~ ....~ ,~" ~-t r`` -'C ~ `J Deryck Henry, Esquire 5621 North Front Street Harrisburg, PA 17110 For the Plaintiffs ~/ John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne PA 17043-0109 For Defendants Robert Nicols and High Performance Vehicle Equipment, Inc. pcb -T L ~~ ~S lt~•'~~~ ~llj3~a ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased, and DEBORAH O'BRIEN, individually NO Plaintiffs, 11-8674 CIVIL V. ROBERT NICOLS, High Performance Vehicle JURY TRIAL DEMANDED Equipment, Incorporated and Property & Casualty Insurance Company of Hartford Defendants. ORDER AND NOW, this 9e, t- day of vU?eC 2013, upon consideration of the Petition to Settle Wrongful Death and Survival Action, it is hereby RDERED and DECREED that Petitioners, Deborah O'Brien and Tracy O'Brien, Executors of the Estate of Robert O'Brien, are authorized to enter into a settlement with Defendants in the gross sum of Seven Hundred and Eighty Thousand Dollars ($780,000.00) for claims on behalf of the Estate of Robert O'Brien and Deborah O'Brien, individually. IT IS FURTHER ORDERED and DECREED that the settlement proceeds be allocated and distributed, as follows: Gross Settlement of all Claims: $780,000.00 TO: Law offices of Deryck Henry (Reimbursement of Costs) TO: Law Offices of Deryck Henry Counsel Fees (25% of Net Fee) TO: Survival Claim TO: Wrongful Death Claim $9,657.00 $192,585.75 $115,551.45 $462,205.80 BY THE COURT: J. l lC{??' k /2 A-tin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DEBORAH O'BRIEN and TRACY O'BRIEN, Administrators of the Estate of ROBERT O'BRIEN, Deceased,and DEBORAH O'BRIEN, individually = NO Plaintiffs, 11-8674 CIVIL V. ROBERT NICOLS,High Performance Vehicle JURY TRIAL DEMANDED Equipment,Incorporated and Property& Casualty Insurance Company of Hartford Defendants. ORDER AND NOW,this o1�31u day of 2013, upon consideration of the Petition to Discontinue, it is hereby ORDERED and DECREED that the above captioned matter is hereby discontinued with prejudice. BY THE COURT: J. z�k � r,;, `z cD t"= CD t-? Q C:y C11 J CM 4J C . C-0 f I S AL-1,` i✓ 1.� J. s A-4y n2.