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HomeMy WebLinkAbout11-8757SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny RAnderson Sheriff ?' i Jody S Smith "'III 11OV30 (I: is L Chief Deputy Richard W Stewart rUMBEPLAhD COUNTY Solicitor PENNSYI-VANIA Kenneth G. Huston Case Number vs. 2011-8757 David L. Cant SHERIFF'S RETURN OF SERVICE 11/23/2011 03:10 PM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on November 23, 2010 at 1510 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: David L. Cant, by making known unto himself personally, at The Cumberland County Prison, 1101 Claremont Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. nn ROB RT BITNER, DEPUTY SHERIFF COST: $34.44 November 28, 2011 SO ANSWERS, ?? /-2 RON R ANDERSON, SHERIFF ,n'. Co'v- ysuito 5herff, Tel,eosoft. Inc, ILEO-O FILE Joseph R. D'Annunzio F x [?E FROT"ONOTAR Attorney for Defendant, GEICO I.D. No. 23384 4309 Linglestown Road, Suite lt12,AN -3 PM 2' Harrisburg, PA 17112 TY U E L (717) 901-5002 ?VAN cUMS A A Fax: (717) 901-5012 PE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff No. 11-8757 V. GEICO AND DAVID CANT, Defendants Civil Action - Law Jury Trial Demanded PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, GEICO, in the above- captioned matter. LAW OFFICE OF JOSEPH R. D'ANNUNZIO Date: BY: "C' /Z-, -, oseph R. D'Annun io, Esquire Attorney for Defendant, GEICO CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day served a true and correct copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 William Douglas, Esquire Douglas Law 43 West South Street P.O. Box 261 Carlisle, PA 17013 Date: /off (.) L,?) O By. 0115ssica Kurtz, leg 9_1 secretary FILED-OFFICE Cif THE PROTHONOTARY - 02 BY: Joseph R. D'Annunzio Za12 JhN -3 FKAgorne for Defendant, GEICO General Insurance Law Office of Joseph R. D'Annunzio Identification No. 23384 CUMBERLAND dbVy" 4309 Linglestown Road, Suite 211 PENNSYLVANIA Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, NO. 11-8757 CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED NOTICE TO PLEAD To: Kenneth Huston, Plaintiff c/o Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter in Nature of a Counter Claim within twenty (20) days from service hereof or a default judgment may be entered against you. LAW OFFICE OF JOSEPH R. D'ANNUNZIO Date: By: AA4Y. Joseph R. D'Annunzio, Esquire Attorney for Defendant, GEICO General Insurance Company BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER COUNTER CLAIM FILED BY DEFENDANT, GEICO GENERAL INSURANCE COMPANY, TO PLAINTIFF COMPLAINT 1. Admitted. 2. Admitted. 3. The averments set forth in this paragraph are addressed to the party other than the answering defendant. Accordingly, no responsive pleading is required. 4. Admitted. 5. Admitted. By way of further answer, at all times relevant to this Complaint and cause of action the Plaintiff was governed by the Limited Tort option of coverage which he purchased. 6. Admitted only upon information and belief. 7. Admitted only upon information and belief. 8. After reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph. Accordingly, the averments are deemed denied and strict proof is demanded. By way of further answer, it is stated that the records attached as exhibit A are writings which are self-evident. 9. After reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph. Accordingly, the averments are deemed denied and strict proof is demanded. By way of further answer, if the averments of this paragraph are used to demonstrate that the Plaintiff has failed to sustain a "serious injury" as the term is defined in the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. A. § 1701, et seq., then they are admitted. 10. Admitted only upon information and belief. 11. Admitted only upon information and belief. 12. It is averred that exhibit B is a writing the terms of which are self-evident. COUNTI DECLARATORY JUDGMENT 13. Admitted. 14. It is denied that 75 Pa. C. S. A. §1705(d)(1)(i) applies in this case. Rather, the applicable section of the statute to this case is 75 Pa. C.S.A. §1731(d)(2), which provides, "A person precluded from maintaining an action for non-economic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneconomic damages." 15. Denied as a conclusion of law to which no response of pleading is required. By way of further answer, it is stated that Rump v. Aetna Casualty and Surety Company is on point with the instant case and requires this Honorable Court to find that there is no right to proceed for uninsured motorist benefits because the Plaintiff elected the Limited Tort option of coverage and he failed to sustain a serious injury. The Pennsylvania Supreme Court in the Rump opinion, stated, "Thus, the plain meaning of the language in dispute is that the `provided that' language applies to all of the provisions of paragraph (1)" Rump v. Aetna Casualty and Surety Company, 551 Pa. 339,346,347,710 A. 2d 1093 (1998). 16. Denied as a conclusion to law in which no responsive of pleading is required. By way of further answer, the holding of the Pennsylvania Supreme Court in the Rump case does not support this allegation. WHEREFORE, Defendant, GEICO General Insurance Company, asks that this Honorable Court enter judgment in its favor and deny the request for declaratory judgment sought by the Plaintiff. NEW MATTER IN THE NATURE OF A COUNTER CLAIM 17. Paragraphs 1, 2, 4, and 5, of the Plaintiff's Complaint are incorporated by reference as if fully set forth herein. 18. By his Complaint for declaratory judgment, the Plaintiff admits that he has failed to sustain a serious injury which would permit him to pierce the Limited Tort threshold that precludes him from seeking non-economic damages. 19. Section 75 Pa. C.S.A. § 1731(d)(2), states, "A person precluded from maintaining an action for noneconomic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for non-economic damages." 20. The Pennsylvania Supreme Court in the case of Rump v. Aetna Casualty and Surety Company, 551 Pa. 339, 348,710 A. 2d 1093 (1998) stated, "Thus, the limitation of 75 Pa. C.S.A. § 1731 (d)(2) applies and precludes a person like appellant who has selected the `limited tort' option for his automobile insurance policy pursuant to the MVFRL from recovering non-economic damages under the uninsured motorist provisions of his insurance policy even though the accident was caused by a uninsured motorist whose vehicle was registered in a state other than Pennsylvania." 21. Pursuant to the Declaratory Judgment Act, 42 Pa. C.S.A. §7541, GEICO General Insurance Company seeks a declaratory judgment that there is no right to relief for noneconomic damages since the Plaintiff, Kenneth G. Huston, elected the Limited Tort option of coverage and since the Plaintiff failed to sustain a serious injury. WHEREFORE, pursuant to 42 Pa. C.S.A. §7541, the Defendant, GEICO General Insurance Company. asks that this Honorable Court enter declaratory judgment in its favor, finding that the Plaintiff has no right to seek noneconomic loss damages since he elected the Limited Tort option of coverage and since he failed to sustain a serious injury. Respectfully Submitted, Date: ? J.- Jd ?? LAW OFFICE OF JOSEPH R. D'ANNUNZIO By: (Zf t- Gay Joseph R. D'Annunzio, Esquire Attorney ID #: 23384 Attorney for Defendant, GEICO General Insurance Company VERIFICATION I verify that I am the attorney for GEICO General Insurance Company, the Defendant in this matter. I am taking this Verification on behalf of my client pursuant to Pa. R.C.P. 1024(c)(2) in that an authorized representative of my client is outside of the jurisdiction of this Court and the Verification cannot be obtained within the time allowed for the filing of this Answer. I verify that I have read the Answer and New Matter Counterclaim, and that the facts contained therein are true and correct to the best of my knowledge, information and belief. understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: 30 Joseph R. D'Annunzio BY: Joseph R D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATION I HEREBY CERTIFY that I am this day served a true and correct copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a true and correct copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Karl Rominger, Esquire William Douglas, Esquire Rominger & Associates Douglas At Law 155 South Hanover Street 43 West South Street Carlisle, PA 17013 P.O. Box 261 Carlisle, PA 17013 Date: ! ! 1301,9 ? ( By: ssica Kurtz, Legal Secretary KENNETH G. HUSTON, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLV ANIA C-) cw r v. CIVIL ACTION-LAW -?3 N NO. 11-8757 rn ? mar= GEICO GENERAL INSURANCE ,r- r, COMPANY and DAVID L. CANT, ° Defendants, < C-) X -- pC N Q? ANSWER TO NEW MATTER co 18. Admitted in part and Denied in part. It is admitted that Plaintiff has failed to sustain a serious injury but denied that he is unable to pierce the Limited Tort threshold that precludes him from seeking noneconomic damages. It is further averred that 75 Pa. C.S.A. § 1705(d)(1)(i) allows the Plaintiff to seek non-economic damages in instances where the injuries are caused by a driver convicted of driving under the influence or accepting ARD for the same. 19. Admitted as to the language of 75 Pa. C.S.A. § 1731(d)(2), but it is further averred that 75 Pa. C.S.A. § I 705(d)(1)(i) creates an exception to the preclusion of the Limited Tort election in instances of injuries caused by a driver convicted of DUI or accepting ARD for such an offense. 20. Admitted. It is further answered that the Pennsylvania Supreme Court in Rump v. Aetna Casualty and Surety Company, 551 PA. 339, fn 4 (1998) stated, "the other two exceptions to the general rule precluding a "limited tort" driver from recovering noneconomic damages are triggered where the person at fault was driving under the influence or was an intentional tortfeasor. 75 Pa. C.S. § 1705(d)(1)(i) and (iii). These two exceptions are not at issue in this case." 21. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is deemed required the same is denied and strict proof of the same is demanded at trial. WHEREFORE, Plaintiff, Kenneth G. Huston, asks this honorable court enter judgment in his favor and deny Defendant's request for declaratory judgment. Dat , A tO W` Respectfully submitted ROMINGER & ASSOCIATES Kar, ominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT, Defendants, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 11-8757 CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Answer to New Matter upon the following by depositing the same in the United States Mail, postage pre- paid, via first class delivery, in Carlisle, Pennsylvania, addressed as follows: Joseph R. D'Annunzio, Esquire 4309 Linglestown Road, Suite 211 Harrisburg, Pennsylvania 17112 Date:AG Respectfully submitted, RO R & ASSOCIATES Karl ominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff BY.- Joseph R. D'Annunzio Attorney for Defendant, GEICO General Law Office of Joseph R. D'Annunzio Insurance Company Identification No. 23384 4309 Linglestown Road, Suite 211 c o `- Harrisburg, PA 17112 c c (717) 901-5002 m o mm 0- 3mo rnF Fax: (717) 901-5012 zr w"') CD IN THE COURT OF COM z MON PLEAS OF CUMBERLAND COUNY rv a -+n o n ,, PENNSYLVANIA Dc orn A KENNETH HUSTON, -< Cn Plaintiff, NO. 11-8757 V. GEICO AND DAVID CANT, Defendants. CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the verification of Defendant, Joan Robinson on behalf of GEICO General Insurance Company, in the above captioned action, for my verification on the Answer and New Matter Counter Claim filed on Friday, January 3, 2012. LAW OFFICE OF JOSEPH R. D'ANNUNZIO BY: A zZfG Joseph R. D'Annunzio, Esquire Attorney Identification No.: 23384 Attorney for Defendant, GEICO General Insurance Company Date: January 11, 2012 VERIFICATION I, Joan Robinson, hereby states that I am the Claims Examiner for GEICO General Insurance Company in this action, and verifies that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief The undersigned understands that the statements therein are made subject to the penalties of 18 PA. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date:---../ 4 / C9 4oan Robinson BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATION I HEREBY CERTIFY that I am this day served a true and correct copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a true and correct copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Date: rl 1, C7 ?C By: 9ssss1icajKKuurtzz,, Legal Secretary a KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT, Defendants, IN THE COURT OF COMMON PLEAS;OF CUMBERLAND COUNTY, PEN;i?§YL§7ANIA, CIVIL ACTION-LAW NO. 11-8757 -? _71 PRAECIPE TO ENTER DEFAULT JUDGMENT AND now, comes Plaintiff Kenneth G. Huston, by and through his counsel, Karl E. Rominger, Esquire, in respect for Petition of this Court to open a default judgment upon praecipe of Defendant, David L. Cant, and avers as follows: 1. Plaintiff commenced this action on November 18, 2011, by filing a Complaint for Declaratory Judgment. A Copy of Plaintiffs Complaint is attached as Exhibit "A". 2. Said Complaint and Notice to Defend were served upon Defendant David L. Cant on November 23, 2011, by the Cumberland County Sheriff. A copy of the Sheriff's Return of' Service is attached hereto as Exhibit "B". 3. Defendant, David L. Cant, failed to file a responsive pleading within twenty (20) days of service of the Complaint and Notice to Defend as required by Rule 1026 of the Pennsylvania Rules of Civil Procedure. q. A ten (10) day notice was mailed to Defendant, David L. Cant, on January 18, 2012 as required by Rule 237.1. A copy of said notice is attached hereto as Exhibit "C". 5. Defendant, David L. Cant, has failed to file a responsive pleading within ten (10) days of said notice. ? 16.,V (./ /?V P #S.26.2, (?,? ? 7o87S ?1'0*e */Z?C/ WHEREFORE, Plaintiff respectfully request that default judgment be entered against Defendant, David L. Cant, due to his failure to file a responsive pleading, and that all allegations within the Complaint be treated as if admitted by said Defendant. Respectfully Submitted, Rominger & Associates z Date: KaFrE. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff Kenneth G. Huston KENNETH G. HUSTON, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA C V. CIVIL ACTION-LAW NO. GEICO GENERAL INSURANCE / ?? ._, COMPANY and DAVID L. CANT, ?° Defendants, c ' NOTICE ca You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 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. 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. C3aVU1pIT e '?!' m KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT, Defendants, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. COMPLAINT FOR DECLARATORY JUDGMENT AND NOW, comes Plaintiff, KENNETH G. HUSTON, by and through his attorney Karl E. Rominger, Esquire, and avers in support of his complaint as follows: 1. The Plaintiff, Kenneth G. Huston, is an adult individual residing at 203 S. Main Street, Marysville, Perry County, Pennsylvania, 17053. 2. The Defendant, GEICO General Insurance Company (Hereinafter referred to as "Geico"), is a corporation with its principal place of business at One Geico Boulevard, Fredericksburg, Virginia, 22412. 3. The Defendant, David L. Cant, is an adult individual currently confined at Cumberland County Prison with a last known address of 415 W. Keller Street, Apartment 2F, Mechanicsburg, Pennsylvania 17055. 4. Defendant Geico is the motor vehicle insurance carrier for Plaintiff Kenneth Huston. 5. Plaintiff Kenneth Huston had elected the Limited Tort option at the time he purchased the insurance policy. 6. On July 23, 2010 at approximately 12:30 PM the Plaintiff was traveling westbound along Simpson Ferry Road near Shiremanstown, Pennsylvania and came to a stop in a line of traffic at a construction site. 7. While stopped in said line of traffic, Kenneth Huston's vehicle was struck from behind by another vehicle driven by Defendant David L. Cant, with such force that the rear bumper was pushed nearly to the rear axle. 8. Due to the collision, the Plaintiff has suffered injuries to his cervical and lumbar spine requiring frequent visits to his chiropractor (one or two times weekly) and has caused him a great deal of pain and mental anguish. (Chiropractor records attached hereto as exhibit A) 9. Plaintiff now suffers from chronic lower back pain; he cannot walk long distances or drive for more than an hour at a time, is unable to play with his 10 year-old daughter, and is emotionally distressed by the thought of never being able to return to normal life. 10. David Cant fled the scene of the accident, and subsequent to police investigation by Lower Allen Township Police it was determined that he had been driving a 1997 Jeep Cherokee owned by Sharon B. Slaughter, a friend's mother, without her permission, and he was therefore not covered under her insurance policy. 11. Further investigation by Lower Allen Township Police uncovered that Defendant David Cant was driving under the influence; the hospital lab report showed a BAC of .185, more than double the legal limit. 12. David Cant pled guilty to DUI: Highest Rate of Alcohol (BAC .16+) 2nd Offense; Accident Involving Death/Injury- Not Properly Licensed; and Drg Lic Sus/Rev Pursuant to section 3802/1547B 1. (Relevant criminal docket attached hereto as exhibit B) COUNT I - DECLARATORY JUDGMENT 13. Geico has determined that the Plaintiff has not suffered a serious injury, and contends that he is therefore bound by his limited tort election and unable to recover non- economic damages from his uninsured/underinsured coverage pursuant to the holding of the Pennsylvania Supreme Court in Rump v. Aetna Casualty and Surety Co., 551 Pa. 339 (1998). 14. Under 75 Pa.C.S. § 1705(d)(1)(i), an individual otherwise bound by the limited tort election will be treated as if they had elected full tort coverage whenever the person at fault is convicted of driving under the influence of alcohol or a controlled substance in that accident. 15. Rp should not apply to the present case because it was solely decided upon the exception for vehicles registered in another state under 75 Pa.C.S. § 1705(d)(1)(ii), and the court stated in FN. 4 that the subsection (i) and (iii) exceptions were not at issue in the case. 16. The need to protect the public from the reckless actions of those driving under the influence of alcohol or drugs greatly outweighs the concerns for limiting the costs of automobile insurance that the Court was concerned with in Rump as applied to uninsured out of state drivers. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter a Declaratory Judgment: a. Declaring that Plaintiff had suffered a serious injury and therefore is not barred from recovering non-economic damages from his uninsured/underinsured plan with Geico; or b. Declaring that Plaintiff be treated as if he had elected full tort coverage and therefore eligible to seek non-economic damages from his uninsured/underinsured plan with Geico; and c. Declaring such other and further relief that the court may deem just and proper. Date: Respectfully submitted, RO ER & ASSOCIATES ??;?VRominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief OePuty Richard W Stewart Solicitor 11? Kenneth G. Huston Case Number vs. 2011-8757 David L. Cant SHERIFF'S RETURN OF SERVICE 11123/2011 03.10 PM - Robert Bilnsr, Deputy Sheriff, who being duly sworn according to law, states that on November 23, 2010 at 1510 hours, he served a true copy of the within Complaint and Note, upon the within named defendant, to wit: David L. Cant, by making known unto himself personally, at The Cumberland County Prison, 1101 Claremont Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true-and correct copy of the same. d . ROB FIB'ITNER, DEPUTY SHERIFF COST: $34.44 November 28, 2011 SO ANSWERS, 71 RON R ANDERSON, SHERIFF (N Cower :. % Stu', « Twee=, M.; G&t 61 ? t ? 16 t • ? •# ROMINGER & ASSOCIATES Attorneys at Law Offices in: Carlisle Camp Hill Chambersburg Ephrata Hanover Hershey Lancaster Lebanon 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Fax: (717) 241-6878 January 18, 2012 Karl E. Rominger Eric R. David* Drew F. Deyo Robert A. Kulling Vincent M. Monfredo Steven R. Snyder Lee Mandarino** * Licensed to Practice in PA and NJ ** Licensed to Practice in NY Only David L. Cant 441 South Third Street Lemoyne, Pennsylvania 17043 RE: Kenneth G. Huston v. GEICO General Insurance Company and David L. Cant Docket No.: 2011-8757 Dear Mr. Cant: To date you have not answered the Complaint which was filed in the above referenced matter; enclosed please find a Notice of Default. Sincerely, Kar . Rominger, Esquire KER/tlp Enclosure GjX C www.romingerlaw.com ADVOCACY ADVICE • ANSWERS ? . , . r Kenneth G. Huston, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - AT LAW NO. 2011-8757 CIVIL GEICO General Insurance Company : and David L. Cant, Defendant To: David L. Cant 441 South Third Street Lemoyne, PA 17043 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. [YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:] YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 Karl ominger, Esquire 155 ouch Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiffs KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT, Defendants, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 11-8757 CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Praecipe to Enter Default Judgment upon the following by depositing the same in the United States Mail, Postage pre-paid, via first class delivery, addressed as follows: David L. Cant 441 South Third Street Lemoyne, PA 17043 Joseph R. D'Annunzio, Esquire 4309 Linglestown Road, Suite 211 Harrisburg, Pennsylvania 17112 Respectfully Submitted, Rominger & Associates Date: 1 Karl ominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff Kenneth G. Huston KENNETH G. HUSTON, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLRAlt ' ' 17a r,,a _t V. rr ??7 ...M CIVII. ACTION-LAW ....,.. 11-8757 C10 NO GEICO GENERAL INSURANCE . COMPANY and DAVID L. CANT, > Defendants, MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, this 5th day of March, 2012, comes the Plaintiff, Kenneth G. Huston, by and through his attorney, Karl E. Rominger, and move this Court pursuant to Pennsylvania Rule of Civil Procedure 1034(a) for entry of judgment on the pleadings against Defendants, and in support thereof aver as follows- 1. Plaintiff commenced this action on November 18, 2011, via a complaint seeking declaratory judgment that Plaintiff had suffered serious injury, or alternatively that Plaintiff should be treated as if he had elected full tort coverage pursuant to 75 Pa. C.S. §1705(d)(1)(i) because he was injured by Defendant, David Cant, who was driving under the influence, and plead guilty to said offense. A copy of Plaintiff's complaint is attached hereto as exhibit A. 2. It is not disputed that the Plaintiff had elected the limited tort option. 3. Under 75 Pa. C.S. S 1705(d)(1)(i), an individual otherwise bound by the limited tort election will be treated as if they had elected full tort coverage whenever the person at fault is convicted of driving under the influence of alcohol or a controlled substance in that accident. 4. On January 3, 2012, Defendant GEICO, filed an Answer with New Matter to Plaintiff's Complaint. A copy of Defendant GEICO's Answer with New Matter is attached hereto as Exhibit B and incorporated as if fully set forth herein. 5. In its Answer with New Matter, GEICO admits that Defendant, David Cant, was in fact driving under the influence, and plead guilty to DUI: Highest Rate of Alcohol (BAC .16+) 2nd Offense; but argues that Plaintiff is barred from seeking non-economic damage pursuant to the holding of Rump v. Aetna Casualty and Surety Company, 551 Pa. 339, 710 A. 2d 1093 (1998). 6. In Paragraph 15 of Plaintiffs Complaint, it is contended that the Pennsylvania Supreme Court's holding in Rump was solely decided upon 75 Pa. C.S. § 1705(d)(1)(ii), and that the applicability of subparagraphs (i) and (iii) were not at issue in that case. The Court stated in fn. 4 of that opinion that "the other two exceptions to the general rule precluding a "limited tort " driver from recovering noneconomic damages are triggered where the person at fault was driving under the influence or was an intentional tortfeasor. 75 Pa. C.S. §1705(d)(1)(1) and (iii). These two exceptions are not at issue in this case.'" 7. Praecipe to enter default judgment against Defendant David L. Cant was filed on February 9, 2009. 8. The pleadings are closed and time exists within which to dispose of this Motion before trial. 9. No genuine issues of material fact exist. The issue in the present case is solely a legal issue for this honorable court's decision. 10. Based on the admitted facts set forth above, Plaintiffs are entitled to judgment as a matter of law. WHEREFORE, Plaintiff requests that this honorable court find in favor of Plaintiff and against Defendant GEICO General Insurance Company, that Plaintiff is full tort for purposes of any UIM/UI claim. Date: Wak r-;, Respectfully submitted, ROMINGER & ASSOCIATES Karl ominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff KENNETH G. HUSTON, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. C IVIL ACTION-LAW NO. 73- GEICO GENERAL INSURANCE 7 { -- 71 COMPANY and DAVID L. CANT, cn < (D Defendants NOTICE' _ C You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 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. 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. 1 ^ 1\ k fiil KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT, Defendants, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. COMPLAINT FOR DECLARATORY JUDGMENT AND NOW, comes Plaintiff, KENNETH G. HUSTON, by and through his attorney Karl E. Rominger, Esquire, and avers in support of his complaint as follows: 1. The Plaintiff, Kenneth G. Huston, is an adult individual residing at 203 S. Main Street, Marysville, Perry County, Pennsylvania, 17053. 2. The Defendant, GEICO General Insurance Company (Hereinafter referred to as "Geico"), is a corporation with its principal place of business at One Geico Boulevard, Fredericksburg, Virginia, 22412. 3. The Defendant, David L. Cant, is an adult individual currently confined at Cumberland County Prison with a last known address of 415 W. Keller Street, Apartment 2F, Mechanicsburg, Pennsylvania 17055. 4. Defendant Geico is the motor vehicle insurance carrier for Plaintiff Kenneth Huston. 5. Plaintiff Kenneth Huston had elected the Limited Tort option at the time he purchased the insurance policy. 6. On July 23, 2010 at approximately 12:30 PM the Plaintiff was traveling westbound along Simpson Ferry Road near Shiremanstown, Pennsylvania and carne to a stop in a line of traffic at a construction site. 7. While stopped in said line of traffic, Kenneth Huston's vehicle was struck from behind by another vehicle driven by Defendant David L. Cant, with such force that the rear bumper was pushed nearly to the rear axle. 8. Due to the collision, the Plaintiff has suffered injuries to his cervical and lumbar spine requiring frequent visits to his chiropractor (one or two times weekly) and has caused him a great deal of pain and mental anguish. (Chiropractor records attached hereto as exhibit A) 9. Plaintiff now suffers from chronic lower back pain; he cannot walk long distances or drive for more than an hour at a time, is unable to play with his 10 year-old daughter, and is emotionally distressed by the thought of never being able to return to normal life. 10. David Cant fled the scene of the accident, and subsequent to police investigation by Lower Allen Township Police it was determined that he had been driving a 1997 Jeep Cherokee owned by Sharon B. Slaughter, a friend's mother, without her permission, and he was therefore not covered under her insurance policy. 11. Further investigation by Lower Allen Township Police uncovered that Defendant David Cant was driving under the influence; the hospital lab report showed a BAC of .185, more than double the legal limit. 12. David Cant pled guilty to DUI: Highest Rate of Alcohol (BAC .16+) 2nd Offense; Accident Involving Death/Injury- Not Properly Licensed; and Drg Lic Sus/Rev Pursuant to section 3802/1547131. (Relevant criminal docket attached hereto as exhibit B) COUNT I - DECLARATORY JUDGMENT 13. Geico has determined that the Plaintiff has not suffered a serious injury, and contends that he is therefore bound by his limited tort election and unable to recover non- economic damages from his uninsured/underinsured coverage pursuant to the holding of the Pennsylvania Supreme Court in Rump v. Aetna Casualty and Surety Co., 551 Pa. 339 (1998). 14. Under 75 Pa.C.S. § 1705(d)(1)(i), an individual otherwise bound by the limited tort election will be treated as if they had elected full tort coverage whenever the person at fault is convicted of driving under the influence of alcohol or a controlled substance in that accident. 15. Rump should not apply to the present case because it was solely decided upon the exception for vehicles registered in another state under 75 Pa.C.S. § 1705(d)(1)(ii), and the court stated in FN. 4 that the subsection (i) and (iii) exceptions were not at issue in the case. 16. The need to protect the public from the reckless actions of those driving under the influence of alcohol or drugs greatly outweighs the concerns for limiting the costs of automobile insurance that the Court was concerned with in Rump as applied to uninsured out of state drivers. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter a Declaratory Judgment: a. Declaring that Plaintiff had suffered a serious injury and therefore is not barred from recovering non-economic damages from his uninsured/underinsured plan with Geico; or b. Declaring that Plaintiff be treated as if he had elected full tort coverage and therefore eligible to seek non-economic damages from his uninsured/underinsured plan with Geico; and c. Declaring such other and further relief that the court may deem just and proper. Date: Respectfully submitted, RO ER & ASSOCIATES "TIE'. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff LAW OFFICE OF JOSEPH R. D'ANNUNZIO ATTORNEYS AND SUPPORT ASSOCIATES ARE EMPLOYEES OF GOVERNMENT EMPLOYEES INSURANCE COMPANY 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 Telephone: 717-901-5002 Facsimile: 717-901-5012 December 30, 2011 Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Re: Huston v. GEICO and Cant Dear Mr. Rominger, Enclosed you will please find a true and correct copy of the Answer and New Matter Counter Claim with reference to this matter. The original of this document was mailed today to the Prothonotary of Cumberland County. Thank you for your time and attention. Very truly yours, Joseph R. D'Annunzio JRDIj lk Enclosure CC: William Douglas, Esquire LAW OFFICE OF JOSEPH R. D'ANNUNZIO ATToRNEYS AND SUPPORT ASSOCIATES ARE EMPLOYEES OF GOVERNMENT EMPLOYEES INSURANCE COMPANY 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 Telephone: 717-901-5002 December 30, 2011 Prothonotary of Cumberland County 1 Courthouse Square, Suite 100 Carlisle, PA 17013 Re: Huston v. GEICO and Cant Cumberland County Docket No: 11-8757 To the Prothonotary of Cumberland County: Facsimile: 717-901-5012 Enclosed you will please find an original and two copies of the Answer and New Matter Counter Claim with reference to the above case. Kindly accept the original for filing, and please return to me the copies, time stamped, in the enclosed self addressed and stamped envelope. Thank you for your time and attention to this matter. Very truly yours, A ?t &2? JRDrIk Enclosures Joseph R. D'Annunzio CC: Karl Rominger, Esquire William Douglas, Esquire BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 L nglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, NO. 11-8757 Plaintiff, V. GEICO AND DAVID CANT, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED NOTICE TO PLEAD To: Kenneth Huston, Plaintiff c/o Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter in Nature of a Counter Claim within twenty (20) days from service hereof or a default judgment may be entered against you. 0-q- Date: AW'4.. iA" Ar// LAW OFFICE OF JOSEPH R. D'ANNUNZIO By: Joseph R. D'Annunzio, Esquire Attorney for Defendant, GEICO General Insurance Company BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5042 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER COUNTER CLAIM FILED BY DEFENDANT. GEICO GENERAL INSURANCE COMPANY, TO PLAE4' WT COMPLAINT 1. Admitted. 2. Admitted. 3. The averments set forth in this paragraph are addressed to the party other than the answering defendant. Accordingly, no responsive pleading is required. 4. Admitted. 5. Admitted. Byway of further answer, at all times relevant to this Complaint and cause of action the Plaintiff was governed by the Limited Tort option of coverage which he purchased. b. Admitted only upon information and belief: 7. Admitted only upon information and belief. 8. After reasonable investigation, the answering defendant is without knowledge or NO. 11-8757 information sufficient to form a belief as to the truth of the averments set forth in this paragraph. Accordingly, the averments are deemed denied and strict proof is demanded. By way of further answer, it is stated that the records attached as exhibit A are writings which are self-evident. 9. After reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph. Accordingly, the averments are deemed denied and strict proof is demanded. By way of further answer, if the averments of this paragraph are used to demonstrate that the Plaintiff has failed to sustain a "serious injury" as the term is defined in the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C. S. A. § 1701, et seq., then they are admitted. 10. Admitted only upon information and belief. 11. Admitted only upon information and belief. 12. It is averred that exhibit B is a writing the terms of which are self-evident. COUNT I DECLARATORY JUDGMENT 13. Admitted. 14. It is denied that 75 Pa. C. S. A. §1705(d)(I)(i) applies in this case. Rather, the applicable section of the statute to this case is 75 Pa. C.S.A. § 1731(d)(2), which provides, "A person precluded from maintaining an action for non-economic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneconomic damages." 15. Denied as a conclusion of law to which no response of pleading is required. By way of further answer, it is stated that Rump v. Aetna Casualty and Surety Company is on point with the instant case and requires this Honorable Court to find that there is no right to proceed for uninsured motorist benefits because the Plaintiff elected the Limited Tort option of coverage and he failed to sustain a serious injury. The Pennsylvania Supreme Court in the Rump.opinion, stated, "Thus, the plain meaning of the language in dispute is that the `provided that' language applies to all of the provisions of paragraph (1)" Rump v. Aetna Casualty and Surety Company, 551 Pa. 339,346,347,710 A. 2d 1093 (1998). 16. Denied as a conclusion to law in which no responsive of pleading is required. By way of further answer, the holding of the Pennsylvania Supreme Court in the Rump case does not support this allegation. WHEREFORE, Defendant, GFICO General Insurance Company, asks that this Honorable Court enter judgment in its favor and deny the request for declaratory j udgment sought by the Plaintiff. NEW MATTER IN THE NATURE OF A COUNTER CLAIM 17. Paragraphs 1, 2, 4, and 5, of the Plaintiff s Complaint are incorporated by reference as if fully set forth herein. 18. By his Complaint for declaratory judgment, the Plaintiff admits that he has failed to sustain a serious injury which would permit him to pierce the Limited Tort threshold that precludes him from seeking non-economic damages. 19. Section 75 Pa. C.S.A. § 1731(d)(2), states, "A person precluded from maintaining an action for noneconomic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for non-economic damages." 20. The Pennsylvania Supreme Court in the case of Rump v. Aetna Casualty and Surety Company, 551 Pa. 339, 348,710 A. 2d 1093 (1998) stated, "Thus, the limitation of 75 Pa. C.S.A. § 1731 (d)(2) applies and precludes a person like appellant who has selected the `limited tort' option for his automobile insurance policy pursuant to the MVFRL from recovering non-economic damages under the uninsured motorist provisions of his insurance policy even though the accident was caused by a uninsured motorist whose vehicle was registered in a state other than Pennsylvania." 21. Pursuant to the Declaratory Judgment Act, 42 Pa. C.S.A. §7541, GEICO General Insurance Company seeks a declaratory judgment that there is no right to relief for noneconomic damages since the Plaintiff, Kenneth G. Huston, elected the Limited Tort option of coverage and since the Plaintiff failed to sustain a serious injury. WHEREFORE, pursuant to 42 Pa. C.S.A. §7541, the Defendant, GEICO General Insurance Company, asks that this Honorable Court enter declaratory judgment in its favor, finding that the Plaintiff has no right to seek noneconomic loss damages since he elected the Limited Tort option of coverage and since he failed to sustain a serious injury. Respectfully Submitted, LAW OFFICE OF JOSEPH R- D'ANINUNZIO Date: 1--- Ja ?!? By: J4 't ?"? Joseph R. D'Annunzio, Esquire Attorney ID #: 23384 Attorney for Defendant, GEICO General Insurance Company VERIFICATION I verify that I am the attorney for GEICO General Insurance Company, the Defendant in this matter. I am taking this Verification on behalf of my client pursuant to Pa. R.C.P. 1024(c)(2) in that an authorized representative of my client is outside of the jurisdiction of this Court and the Verification cannot be obtained within the time allowed for the filing of this Answer. I verify that I have read the Answer and New Matter Counterclaim, and that the facts contained therein are true and correct to the best of my knowledge, Information and belief. I understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: -14D Joseph R. D'Annunzio BY: Joseph R. D'Annanzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Lmglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HVSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATION T HEREBY CERTIFY that I am this day served a true and correct copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a true and correct copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Kart Rominger, Esquire, William Douglas, Esquire Rominger & Associates Douglas At Law 155 South Hanover Street 43 West South Street Carlisle, PA 17013 P.O. Box 261 Carlisl PA 17013 f Date: By: sica Kurtz, Legal Secretary KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT, Defendants, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 11-8757 CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff Kenneth Huston, do hereby certify that I this day served a copy of the Motion for Judgment on the Pleadings and Praecipe to Place on Argument List upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Joseph R. D'Annunzio, Esquire Attorney for Defendant GEICO General Insurance Co. 4300 Linglestown Road, Suite 211 Harrisburg, Pennsylvania 17112 Date: r emu' CIA Karl E. Rominger, Esquire 155 S. Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court I.D. # 81924 Attorney for Plaintiff Kenneth G. Huston PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Kenneth G. Huston vs. (List the within matter for thg°pex?,,, ---------------------------------- Gs -C rn "c r c c c; a -Y1 - i r Geico General Insurance Company and lovia No. 8757 , 2011 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Judgment on the Pleadings of the Plaintiff 2. Identify all counsel who will argue cases: (a) for plaintiffs: Karl E. Rominger, Esquire, 155 South Hanover Street, Carlisle, PA 17013 (Name and Address) (b) for defendants: Joseph R. D'Annunzio, Esquire, 4300 Linglestown Road, Suite 211, Harrisburg, PA 17112 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 13, 2012 Signs e ?fj r ? E.. e?oYV? 1 h( ., Print your name U Plaintiff March 6, 2012 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CQ- -4- ? 83.77 ?? 02 ? 2Q3? BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 t.. ?' ? 914.1 (\? 1 ?I?S'?V ?hti t I G 15 ?li? Attorney for Defendant, GEICO General Insurance ,Ui?igERLaNO COUNT ?' Company P?NN5YLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. To: Kenneth Huston, Plaintiff c/o Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Motion of Defendant, GEICO General Insurance Company for Judgment on the Pleadings within twenty (20) days from service hereof or a default judgment may be entered against you. LAW OFFICE OF JOSEPH R. D'ANNUNZIO Date: / ?m y By: Joseph R. D'Annunzio, Esquire Attorney for Defendant, GEICO General Insurance Company BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION OF DEFENDANT, GEICO GENERAL INSURANCE COMPANY, FOR JUDGMENT ON THE PLEADINGS 1. On November 18, 2011, the Plaintiff, Kenneth G. Huston, filed a Complaint for Declaratory Judgment with this Honorable Court seeking judgment that he would be permitted to present a claim for non-economic damages for uninsured motorist benefits under a policy of automobile insurance held with GEICO General Insurance Company. A true and correct copy of the Complaint for Declaratory Judgment is attached to the Plaintiff s Motion for Summary Judgment and is incorporated by reference without admission. 2. On January 3, 2012, the defendant, GEICO General Insurance Company, filed an Answer to the Plaintiff s Complaint for declaratory judgment. As part of the Complaint, defendant, GEICO General Insurance Company, filed a counter claim also seeking a declaratory judgment. The relief sought was a finding that the Plaintiff was bound by his limited tort option selection and so was unable to present a claim for non-economic damages under the uninsured motorist provisions of his policy since he had not sustained a serious injury. A true and correct copy of the Answer and New Matter in Nature of a Counter Claim is attached to the Plaintiff's Motion for Summary Judgment and is incorporated by reference as if fully set forth herein. 3. On January 10, 2012, the Plaintiff, Kenneth G. Huston, filed an Answer to the New Matter. A true and correct copy of this pleading is attached to this Motion for Summary Judgment and is incorporated by reference as if fully set forth herein. 4. In his Answer to paragraph 18 of the Defendant's New Matter Counter Claim, the Plaintiff admitted that he had failed to sustain a serious injury. 5. On March 6, 2012, the Plaintiff filed a Motion for Judgment on the Pleadings. The pleadings are closed and time exists within which to dispose of the Motion of the Plaintiff and the Motion of the Defendant before trial. 6. No genuine issues of material fact exist. The issues in the Plaintiff's Motion for Summary Judgment and the Defendant's Motion for Summary Judgment are solely legal issues. 7. The defendant, GEICO General Insurance Company, is entitled to Judgment as a matter of law. 8. The defendant, GEICO General Insurance Company, avers that pursuant of the holding of the Pennsylvania Supreme Court in Rump v. Aetna Casualty Company, 551 Pa. 339, 710 A.2d 1093 (1998), as this case has been interpreted by the Pennsylvania Superior Court in the case of Lewis v. Erie Insurance Exchange, - Pa. Super. -, 753 A.2d 839 (2000), the exceptions permitting a limited tort Plaintiff to seek and recover non- economic damages against a tortfeasor do not apply to the bar that precludes a limited tort Plaintiff from recovering uninsured and underinsured motorist benefits if the Plaintiff fails to sustain a serious injury (75 Pa. C.S.A. §1731(d)(2)). WHEREFORE, defendant, GEICO General Insurance Company, asks that this Honorable Court enter judgment in its favor and dismiss the Complaint filed by the Plaintiff seeking uninsured motorist benefits with prejudice. Respectfully submitted, Law Office of Joseph R. D'Annunzio r Joseph R. D'Annunzio, Esquire Attorney for defendant, GEICO General Insurance Company VERIFICATION I verify that I am the attorney for GEICO General Insurance Company, the Defendant in this matter. I am taking this Verification on behalf of my client pursuant to Pa. R.C.P. 1024(c)(2) in that an authorized representative of my client is outside of the jurisdiction of this Court and the Verification cannot be obtained within the time allowed for the filing of this Answer. I verify that I have read the Motion of Defendant, GEICO General Insurance Company for Judgment on the Pleadings, and that the facts contained therein are true and correct to the best of my knowledge, information and belief. I understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: N""l l ?°? L lCy ?? i " Joseph R. D'Annunzio BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, NO. 11-8757 Plaintiff, V. CIVIL ACTION - LAW GEICO AND DAVID CANT, Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Jessica Kurtz, do hereby certify that on this ? day of fflclra-1 , 2012, I caused a true and correct copy of the Motion of Defendant for Judgment on the Pleadings, to be served upon the following person listed below via first class United States mail, postage prepaid: Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 LAW OFFICE OF JOSEPH R. D'ANNUNZIO BY: ssica Kurtz, Leg I Secretary wit 2 M1?R 15 a? i i? 1 5 BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 SS'' ??yy p et ftfff?ndant, GEICO General Insurance rule L? Company PENNSYLVANt A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT, GEICO GENERAL INSURANCE COMPANY, ANSWER TO MOTION FOR JUDGMENT ON THE PLEADINGS 1. Admitted that attached as Exhibit A is true and correct copy of the Complaint filed by the Plaintiff in this matter. 2. Admitted. 3. Admitted with qualification. It is admitted only that the exception set forth in section 71 Pa. C.S.A. § 1705(d)(1)(i) applies when a limited tort Plaintiff sues a defendant for non- economic loss in a liability action. Under those circumstances, the limited tort Plaintiff may recover for non-economic loss against a defendant if the defendant has been convicted of a operating a motor vehicle while under the influence of alcohol or of a controlled substance. The present matter is a claim for uninsured motorist benefits and is controlled by Section 1731(d)(2) which states, "A person precluded from maintaining an action for non-economic damages under Section 1705... may not recover from uninsured motorist coverage or underinsured motorist coverage for non-economic damages." 4. Admitted. 5. Admitted. 6. Denied that the interpretation of the Plaintiff is applicable in this case. To the contrary, the correct language in the Rump case that is applicable to the instant case is, "Accordingly, a driver who elects limited tort coverage is unable to collect non-economic damages from uninsured or underinsured motorist provisions of his insurance policy for any accidents set forth in paragraph 1 of 75 Pa. C.S.A. § 1705 (d) because of the limitation of 75 Pa. C.S.A. § 1731(d)(2)." Rump v. Aetna Casualty Surety Company, 551 Pa. 339, 347, 710 A.2d 1093, 1097 (1998). 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. To the contrary, based on the admitted facts and the law, it is the defendant that is entitled to judgment as a matter of law. WHEREFORE, GEICO General Insurance Company asks that this Honorable Court deny the Motion for Judgment on the Pleadings filed by the Plaintiff. Respectfully submitted, Law Office of Joseph D'Annunzio /A I',^? Joseph R. D'Annunzio, Esquire Attorney for Defendant, GEICO General Insurance Company VERIFICATION I verify that I am the attorney for GEICO General Insurance Company, the Defendant in this matter. I am taking this Verification on behalf of my client pursuant to Pa. R.C.P. 1024(c)(2) in that an authorized representative of my client is outside of the jurisdiction of this Court and the Verification cannot be obtained within the time allowed for the filing of this Answer. I verify that I have read the Defendant's Answer to Motion for Judgment on the Pleadings, and that the facts contained therein are true and correct to the best of my knowledge, information and belief. I understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: /1,...'L / ZA, 1? ry v /osUph R. D'Annunzio BY: Joseph R. D'Annunzio Law Office of Joseph R. D'Annunzio Identification No. 23384 4309 Linglestown Road, Suite 211 Harrisburg, PA 17112 (717) 901-5002 Fax: (717) 901-5012 Attorney for Defendant, GEICO General Insurance Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, :PENNSYLVANIA KENNETH HUSTON, Plaintiff, V. GEICO AND DAVID CANT, Defendants. NO. 11-8757 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Jessica Kurtz, do hereby certify that on this of , 2012, I caused a true and correct copy of the Defendant's Answer to Motion for Judgment on the Pleadings to be served upon the following person listed below via first class United States mail, postage prepaid: Karl Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 LAW OFFICE OF JOSEPH R. D'ANNUNZIO BY: qjss's?"icca Kurtz, Leg Secretary PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) CAPTION OF CASE (entire caption must be stated in full) KENNETH G. HUSTON vs. (List the within matter for tJ na • ?, ?, rv -------------------------------- - XR. /yam EE C GEICO GENERAL INSURANCE COMPANN a No. 11-8757 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Counter Motion for Judgment on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: Karl E. Rominger, Esquire, 155 South Hanover Street, Carlisle, PA 17013 (Name and Address) (b) for defendants: Joseph R. D'Annunzio, Esquire, 4309 Linglestown Road, Suite 211, Harrisburg, PA 17112 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 13, 2012 Date: /V 2a? Le:2? g ature Print your name Defendant Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. shy d ` 4PFfT P 'k fjj/6y?aLfi1 ,2 ? a 745 75 KENNETH G. HUSTON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GEICO GENERAL INSURANCE COMPANY, DEFENDANT 11-8757 CIVIL TERM IN RE: CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS BEFORE EBERT, JR.. J. MASLAND. J. AND PLACEY, J ORDER OF COURT AND NOW, thisct?y day of April, 2012, upon consideration of the cross motions for judgment on the Pleadings filed by Plaintiff, Kenneth G. Huston and Defendant, GEICO General Insurance Company, briefing by the parties and argument en banc, we now DENY Plaintiffs motion and GRANT Defendant's motion on the basis of Rump v. Aetna Casualty Surety Company, 710 A.2d 1093 (Pa. 1998). By the Court, f, Albert H. Masland, J. ? Karl E. Rominger, Esquire For Plaintiff c o ? Joseph R. D'Annunzio Esquire =m , 4309 Linglestown Road, Suite 211 :x= cnr" rv Harrisburg, PA 17013 ..? r cn ca , :saa x comic Q -r CD C I) r f i KENNETH HUSTON, Plaintiff V. GEICO GENERAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 11-8757 - CIVIL TERM The Honorable Albert H. Masland NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Kenneth Huston, plaintiff above named, hereby appeals to the Superior Commonwealth Court of Pennsylvania from the order entered in this matter on the 24th day of April, 2012. The Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully submitted, Rominger & Associates -' Date: May 11, 2012 Karl E. Rominger, Esquire Supreme Court ID # 81924 ?-- ?' 155 South Hanover Street A -v Carlisle, PA 17013 z :z (717) 241-6070 Attorney for Plaintiff = 57D0 ?l -C1? P;;S511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2011-08757 HUSTON KENNETH G (vs) GEICO GENERAL INS CO ET AL Reference No... Filed......... 11/18/2011 Case Type ..... : TORT - MOTOR VEHICLE Judgment......: 00 Time...... . Execution Date 4:00 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info HUSTON KENNETH G PLAINTIFF ROMINGER KARL E 203 S MAIN STREET MARYSVILLE PA 17053 GEICO GENERAL INSURANCE DEFENDANT D'ANNUZIO JOSEPH R COMPANY ONE GEICO BOULEVARD FREDERICKSBURG VI 22412 CANT DAVID L DEFENDANT CCP 415 W KELLER STREET APARTMENT 2F MECHANICSBURG PA 17055 ******************************************************************************** Judgment Index Amount Date Desc CANT DAVID L 2/09/2012 FAILURE TO PLEAD ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 11/18/2011 COMPLAINT - DECLARATORY JUDGMENT - BY KARL E ROMINGER ATTY FOR PLFF ------------------------------------------------------------------- 11/30/2011 SHERIFF'S RETURN - 11/23/11 - SERVED COMPLAINT AND NOTICE UPON DAVID L CANT***ONLY** AT CCP SHERIFF'S COSTS: $34.44 ------------------------------------------------------------------- 1/03/2012 PRAECIPE TO ENTER APPEARANCE - BY JOSEPH R D'ANNUNZIO ATTY FOR DEF ------------------------------------------------------------------- 1/03/2012 ANSWER AND NEW MATTER COUNTER CLAIM FILED BY DEFENDANT GEICO GENERAL INSURANCE COMPANY TO PLAINTIFF COMPLAINT - BY JOSEPH R D'ANNUNZIO ATTY FOR DEF ------------------------------------------------------------------- 1/10/2012 ANSWER TO NEW MATTER - BY KARL E ROMINGER ATTY FOR PLFF ------------------------------------------------------------------- 1/12/2012 FORPRAEDEFT/CIPE SUBSTITUTE VERIFICATION - BY JOSEPH R D'ANNUNZIL ATTY ------------------------------------------------------------------- 2/09/2012 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED AGAINST DEFT DAVID L CANT - BY KARL E ROMINGER ATTY FOR PLFF ------------------------------------------------------------------- 2/09/2012 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 3/06/2012 MOTION FOR JUDGMENT ON THE PLEADINGS - BY KARL E ROMINGER ATTY FOR PLFF ------------------------------------------------------------------- 3/06/2012 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR JUDGMENT ON THE PLEADINGS OF THE PLAINTIFF - BY KARL E ROMINGER ATTY FOR PLFF --------------------------------------------------------------------GE 3/15/2012 TMOT HEIPLEADINGST- BYIJOSEPHRRAD'IANNUNZIOEATOTYP OR DEFOT/GEIDGOMENT ON ------------------------------------------------------------------- 3/15/2012 DEFENDANT-GEICO GENERAL INSURANCE COMPANY-ANSWER TO MOTION FOR JUDGMENT ON THE PLEADINGS - BY JOSEPH R D'ANNUNZIO ATTY FOR DEFT/GEICO ------------------------------------------------------------------- 3/26/2012 PRAECIPE FOR LISTING CASE FOR ARGUMENT - COUNTER MOTION FOR PYS511 Cumberland County Prothonotary's Office Civil Case Print 2011-08757 HUSTON KENNETH G (vs) GEICO GENERAL INS CO ET AL Page Reference No..: Filed........: 11/18/2011 Case Type Judgment. ..... : TORT - MOTOR VEHICLE .....: 00 Time.........: Execution Date 4:00 0/00/0000 Judge Ass igned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. t 1 i C 0/00/0000 --------- --- Case Comments ------------- gher r .: H Higher Crt 2.: JUDGMENT - BY JOSEPH R A'ANNUNZIO ATTY FOR DEF -------------- ----------- 4/25/2012 --------------------------------------- ORDER OF COURT - 4/24/12 - IN RE: CROSS ' --- MOTIONS FOR JUDGMENT ON ' S MO THE PLEADINGS - - WE NOW DENY PLFF ITON AND GRANT DE FT S MOTION - BY THE COURT ALBERT H MASLAND J COPIES MAILED 4/25/12 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be*q*Bal Pymts/Ad End Bal ******************************** ******* ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 JDMT/DEFAULT 16.50 16.50 .00 PREACIPE ARGUME 19.75 19.75 .00 PREACIPE ARGUME 19.75 19.75 ---------- --- .00 --------- -------------- 148.00 148.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, i here unto set my hand and the sell of said e4ww Carlisle. Pa. This -rC?/' ? yp J tary ?, ) KENNETH HUSTON, Plaintiff V. GEICO GENERAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 11-8757 - CIVIL TERM The Honorable Albert H. Masland CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that a true and correct copy of the within NOTICE OF APPEAL was served upon the following individuals on the below date, by placing same in the United States Mail, first-class postage prepaid, addressed as follows: The Honorable Albert H. Masland Court Administrator's Office One Courthouse Square One Courthouse Square Carlisle, PA 17013 Carlisle, PA 17013 Official Court Reporter One Courthouse Square Carlisle, PA 17013 Dated: ?-/ Joseph R. D'Annunzio, Esquire Attorney for Defendant GEICO General Insurance Co. 4300 Linglestown Road, Suite 211 Harrisburg, Pennsylvania 17112 Respectfully submitted, ROMINGER & ASSOCIATES Karl E. Rommger, Esquire Supreme Court ID # 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 KENNETH HUSTON, Plaintiff V. . GEICO GENERAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 11-8757 - CIVIL TERM The Honorable Albert H. Masland REQUEST FOR TRANSCRIPT A Notice of an Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify, and file the transcript in this matter conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Dated: 7 1 Respectfully submitted, Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # Attorney for Defendant KENNETH HUSTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. GEICO GENERAL INSURANCE mQ a: COMPANY,? DEFENDANT 11-8757 CIVIL TERM ORDER OF COURTr AND NOW, this 16th day of May, 2012, Plaintiff shall file and serve a col*-in #be chambers of this judge a concise statement of errors complained of on appeal within twenty-one (21) days of this date. By the Court, Albert H. Masland, J. ? Karl E. Rominger, Esquire For Plaintiff ,f Joseph R. D'Annunzio, Esquirefd For Defendant ap. ieg M s/,& :saa od KENNETH HUSTON, Plaintiff V. GEICO GENERAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 11-8757 - CIVIL TERM The Honorable Albert H. Masland PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment for the Defendant in the above referenced matter pursuatto Order of Court dated April 24, 2012. t3- Respectfully submitted, _0 Rominger & Associates - ?' Date: May 11, 2012 - ', Karl . Rominger, Esquire Supreme Court ID # 81924 155 South Hanover Street Carlisle, P.A 17013 (717) 241-6070 Attorney for Plaintiff ?? S? ?''? KENNETH G. HUSTON, Plaintiff, V. GEICO GENERAL INSURANCE COMPANY, Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION-LAW NO. 11-8757 The Honorable Albert H. Masland CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff Kenneth Huston, do hereby certify that I this day served a copy of the Praecipe to Enter Judgment upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Joseph R. D'Annunzio, Esquire Attorney for Defendant GEICO General Insurance Co. 4300 Linglestown Road, Suite 211 Harrisburg, Pennsylvania 17112 Date: 1 c Karl E. Rominger, Esquire 155 S. Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court I.D. # 81924 Attorney for Plaintiff Kenneth G. Huston 6uperior Court of 30eunop[bania Karen Reid Bramblett, Esq. Middle District Pennsylvania Judicial Center Prothonotar T P.O. Box 62435 Mary A. Graybill, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 May 15, 2012 (717) 772-1294 www. superior. court. state. Pa. us Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square 'v Carlisle, PA 17013 --O3 N aw ' m :C.. FTI . RE: Kenneth Huston f ... U) Appellant V. > -,o Geico General Insurance Company y ..,. 892 MDA 2012 -?-° Trial Court Docket No: 11-8757 ?- Dear David D. Buell: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Mary A. Graybill, Esq. Deputy Prothonotary /rh Enclosure 11:39 A.M. Appeal Docket Sheet Docket Number: 892 MDA 2012 Page 1 of 2 May 15, 2012 Kenneth Huston Appellant V. Geico General Insurance Company Initiating Document Case Status: Case Processing Status Journal Number: Case Category Superior Court of Pennsylvania Secure CAPTION CASE INFO?TION Notice of Appeal Active May 15, 2012 Awaiting Original Record Civil Case Type(s) Civil Action Law RftATL 0PAES SCHEDULED EVeNT Next Event Type: Receive Docketing Statement Next Event Due Date: May 29, 2012 Next Event Type: Original Record Received Next Event Due Date: July 10, 2012 COUNSEL INFORMATION Appellant Hu Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: ston, Kenneth Appoint Counsel Status: Represented Rominger, Karl Ernst 081924 Rominger & Associates 155 S Hanover St Carlisle, PA 17013 Phone No: (717) 241-6070 Fax No: (717) 241-6878 Receive Mail: Yes Receive EMail: No Appellee Geico General Insurance Company Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: D'Annunzio, Joseph R. Bar No: 023384 Law Firm: Geico Corporation Address: 4309 Linglestown Rd Ste 211 Harrisburg, PA 17112 Phone No: (717) 901-5002 Fax No: (717) 901-5012 Receive Mail: Yes Receive EMail: No 11:39 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 892 MDA 2012 Page 2 of 2 Secure May 15, 2012 FE IMAM Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 05/11/2012 Notice of Appeal 73.50 05/15/2012 2012-SPR-M-000479 73.50 AGENCY/TRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: April 24, 2012 Judicial District: 09 Documents Received: May 15, 2012 Notice of Appeal Filed: May 11, 2012 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):11-8757 Lower Ct Judge(s): Masland, Albert H. Judge ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: BMEFft WNWK-E None None DOOl tWkY Filed Date Docket Entry / Representing Participant Type Filed By May 15, 2012 Notice of Appeal Docketed Appellant Huston, Kenneth May 15, 2012 Docketing Statement Exited (Civil) Middle District Filing Office KENNETH HUSTON, Plaintiff V. GEICO GtNERAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 11-8757 - CIVIL TERMo- era u)F The Honorable Albert H. MAa:L-nd u' CONCISE STATEMENT OF ERRORS' COMPLAINED OF ON APPEAL i AND NOW, comes Kenneth Huston, by and through his privately retained counsel, Karl E. Rominger, Esquire and in support of his Concise Statement of Errors Complained of on Appeal avers as follows: l . The holding in Rump v. Aetna Causualty Surety Company, 710 A.2d 1093 (Pa. 1998) was applied in error to the instant case in granting Defendant's motion for judgment on the pleadings. gi m? applies solely to 75 Pa. C.S.A. § I 705(d)(1)(ii), whereas 75 Pa. C.S.A. § 1705(d)(1 )(i) dealing with DUI drivers was not ruled upon. Plaintiff contends that the 75 Pa. C.S.A. §1705(d)(1)(i) exception to the limited tort limitation applies to the instant case. The Pennsylvania Supreme Court did not intend for the holding in Rump to bar innocent victims of drunk drivers from recovering pain and suffering damages. Date: Respectfully submitted, ROMINGER & ASSOCIATES Kar14E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant KENNETH G. HUSTON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GEICO GENERAL INSURANCE COMPANY, DEFENDANT 11-8757 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., July 10, 2012:-- Plaintiff, Kenneth Huston, appeals the order of an en banc panel of this Court granting the Motion for Judgment on the Pleadings filed by Defendant, Geico General Insurance Company. Plaintiff complains of the following matter on appeal: The holding in Rump v. Aetna Casualty Surety Company, 710 A.2d 1093 (Pa. 1998) was applied in error to the instant case in granting Defendant's motion for judgment on the pleadings. Rump applies solely to 75 Pa. C.S.A. §1705(d)(1)(ii), whereas 75 Pa. C.S.A. §1705(d)(1)(i) dealing with DUI drivers was not ruled upon. Plaintiff contends that the 75 Pa. C.S.A. §1705(d)(1)(i) exception to the limited tort limitation applies to the instant case. The Pennsylvania Supreme Court did not intend for the holding in Rump to bar innocent victims of drunk drivers from recovering pain and suffering damages. Concise Statement, filed May 5, 2012. 1. Standard of Review For the purposes of a motion for judgment on the pleadings, we limit our consideration to the pleadings and relevant documents attached thereto, accepting as true all well-pleaded facts. Wachovia v. Ferretti, 935 A.2d 565, 570 11-8757 CIVIL TERM (Pa. Super. 2007). We may only enter judgment on the pleadings when there are no disputed factual issues and the moving party is entitled to judgment as a matter of law. Id. Here, the relevant facts are not in dispute. This appeal presents the narrow issue of whether a plaintiff who has elected the limited tort option on his motor vehicle insurance may nonetheless recover non-economic loss damages from his uninsured motorist benefits where the defendant tortfeasor was convicted of driving under the influence (DUI). Following consideration of Defendant's Motion for Judgment on the Pleadings and briefing by the parties, we conclude that the tortfeasor's DUI conviction does not enable Plaintiff to recover noneconomic loss damages in a claim for uninsured motorist benefits. Il. Discussion A. Statutory Provisions The Motor Vehicle Financial Responsibility Law (Law) generally prevents a plaintiff who elects the limited tort option from recovering noneconomic damages. However, the Law allows such a recovery under certain limited circumstances. The Law provides, in relevant part: (1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault: (i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident .... 75 Pa.C.S. § 1705(d)(1)(i) (emphasis added). However, the Law also states: -2- 11-8757 CIVIL TERM A person precluded from maintaining an action for noneconomic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneconomic damages. 75 Pa.C.S. § 1731(d)(2). B. Supreme Court Precedent The parties disagree upon the appropriate interplay between these related statutory provisions. The parties do, however, agree on the controlling case law. Specifically, both rely on Rump v. Aetna Casualty and Surety Co., 710 A.2d 1093 (Pa. 1998). After reviewing this case, an en banc panel of this Court agreed with Defendant Insurer that Rump precluded Plaintiff's claim for noneconomic damages from his uninsured motorist benefits. The court believes the Superior Court should agree. In Rump, our Supreme Court held "a driver who elects limited tort coverage is unable to collect noneconomic damages from uninsured or underinsured motorist provisions of his insurance policy for any accidents set forth in paragraph 1 of 75 Pa.C.S. §1705(d) because of the limitation at 75 Pa.C.S. §1731(d)(2)." Id. at 1096. Here, Plaintiff seeks to distinguish Rump on the basis that the case was limited to only one of the section 1705(d) exceptions and that the Supreme Court explicitly declined to rule on the DUI tortfeasor exception. See id. at 1095 n.4. Plaintiff essentially makes an equitable argument that "[t]he Pennsylvania Supreme Court did not intend for the holding in Rump to bar innocent victims of drunk drivers from recovering pain and suffering damages." Concise Statement, filed May 5, 2012. We disagree. -3- 11-8757 CIVIL TERM We believe it is inappropriate to limit Rump's application to its particular facts. Instead, all limited tort electors should be bound to their choice and be precluded from recovering noneconomic damages pursuant to their uninsured and underinsured motorist benefits policies. We find strong support for this conclusion in our Supreme Court's discussion of the policy goals of the Law. Our Supreme Court explained: This conclusion is consistent with the policy behind the enactment of the [Law], the concern over the spiraling costs of insurance to residents of Pennsylvania. However, the limitation placed on these four exceptions by 75 Pa.C.S. § 1731(d)(2) reflects a legislative determination that allowing uninsured claims under the four exceptions would not deter or punish unacceptable conduct or level the playing field between parties. Instead, allowing such a recovery from the "limited tort" driver's uninsured or underinsured provisions of his policy would act to eliminate the cost savings associated with choosing the limited tort option because it would have an upward effect on insurance rates charged to Pennsylvania insureds. Id. at 1097. Clearly, the Supreme Court determined the General Assembly intended to preclude limited tort electors from recovering noneconomic damages from their underinsured motorist policies regardless of the statutory exceptions that allow such a plaintiff to recover noneconomic damages from certain tortfeasors. We believe this distinction also answers Plaintiffs equitable argument. The Law unequivocally permits him to recover noneconomic damages from the DUI tortfeasor that caused his injuries. Such a result is consistent with the General Assembly's conclusion "that the importance of limiting insurance costs were -4- 11-8757 CIVIL TERM outweighed by the need to punish or deter tortfeasors who drove under the influence ...." Id. No such punitive or deterrent purpose would be served by permitting Plaintiff to recover such damages from his own uninsured motorist policy. Instead, allowing such a practice would contravene the clear policy goals of the Law. Ill. Conclusion For these reasons, the Superior Court should affirm this Court's grant of judgment on the pleadings in favor of the Defendant insurance company. By the Court, Albert H. Masla d, J. P/ Karl E. Rominger, Esquire For Plaintiff V Joseph R. D'Annunzio, Esquire -? 4309 Linglestown Road, Suite 211 a' Harrisburg, PA 17013 zrn : For Defendant ,- ILL .?C -U, :saa (lop pka 7 -5- CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: KENNETH G. HUSTON Vs. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT 2011-8757 CIVIL TERM 892 MDA 2012 The documents comprising the record have been numbered from No. 1 to 128, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 07/17/2012. An additional cony of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania ss: County of (,timberland 1, David D. Buell , Prothonotary of the Court of Common Pleas in :arid for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein KENNETH G. HUSTON Plaintiff, and GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT Defendant, as the same remains of record before the said Court at No. 2011-8"157 of Civil Term'm mai.2a/.2 In T f.STIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 17TH day of JUL? A D., 2012 lllwhonotare Kevin A. Hess President Judge of the Ninth Judicial District, composed of' the County of Cumberland, do certify that _ -- David D. Buell . by whom the annexed record, certificate and attestation were rnade and given, and who, in his ovvn proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotarv in and for said County of Cumberland in the Commonwealth of" Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts ofjudicature as elsewhere, and th, the said record, certificate and attestation are in due form of law and made by the open offy?( Pru,id,2w Jwdec Commonwealth of Pennsylvania County of' Cumberland - ss: I, David D. Buell , Prothonotarv of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereinto subscribed his name, xas, at the time of making thereof; and still is President,Judge of the Court of Common Pleas. Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such frill faith and credit are and ought to be given, as vvell in Courts of judicature as elsewhere. IN I FfSTIMONY WI-IEREOF, f have hereunto set my hand and affixed the seal of said Court this 17TH ,rieu of \JULh-, A.1`n1 2012 Pro I hl3 nh)rii rV" N, o. - Term 19 N 2011-8757 civil Term 892 MDA 2012 KENNETH G. HUSTON Versus GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT EXEMPLIFIED RECORD Cumberland From Count Debt. . . . $ int. from Costs Entered and Filed Prothonotary. Amon; the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland counts ? in the Commonwealth of Pennsylvania 2011-877 to No. 892 MDA 2012 Term. 19 , is contained the following: COPY OF Appearance DOCKET ENTRY KENNETH G. HUSTON vs. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT **SEE CERTIFIED COPY OF DOCKET ENTERIES** PYS511 Cumberland County Prothonotary's Office 'Page 1 Civil Case Print 2011-08757 HUSTON KENNETH G (vs) GEICO GENERAL INS (__ ET AL Reference No..: Filed........: 11/18/2011 Case Type.....: TORT - MOTOR VEHICLE Time.........: 4:00 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: 89: Higher Crt 2.: General Index Attorney Info HUSTON KENNETH G PLAINTIFF ROMINGER KARL E 203 S MAIN STREET MARYSVILLE PA 17053 GEICO GENERAL INSURANCE COMPANY ONE GEICO BOULEVARD FREDERICKSBURG VI 22412 CANT DAVID L CCP 415 W KELLER STREET APARTMENT 2F MECHANICSBURG PA 17055 DEFENDANT D'ANNUZIO JOSEPH R DEFENDANT **********************************************************************; Judgment Index Amount Date Desc CANT DAVID L 2/09/2012 FAILURE TO GEICO GENERAL INSURANCE 5/11/2012 JUDGMENT 01 COMPANY ********************************************************************** * Date Entries ********************************************************************** ?- Sz 11/18/2011 6-3 11/30/2011 Sq-SS 1/03/2012 ,rj_ 6,? 1/03/2012 b3. 65 1/10/2012 1/12/2012 2/09/2012 2/09/2012 go- q7 3/06/2012 3/06/2012 jq_ roll 3/15/2012 /C&- - 109 3/15/2012 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - COMPLAINT - DECLARATORY JUDGMENT - BY KARL E ROMINGER ATTY PLFF ----------------------------------------------------------- SHERIFF'S RETURN - 11/23/11 - SERVED COMPLAINT AND NOTICE L DAVID L CANT***ONLY** AT CCP SHERIFF'S COSTS: $34.44 ----------------------------------------------------------- PRAECIPE TO ENTER APPEARANCE - BY JOSEPH R D'ANNUNZIO ATTY ----------------------------------------------------------- ANSWER AND NEW MATTER COUNTER CLAIM FILED BY DEFENDANT GEIC GENERAL INSURANCE COMPANY TO PLAINTIFF COMPLAINT - BY JOSEF D'ANNUNZIO ATTY FOR DEF ---------------------------------------------------------- ANSWER TO NEW MATTER - BY KARL E ROMINGER ATTY FOR PLFF ----------------------------------------------------------- PRAECIPE TO SUBSTITUTE VERIFICATION - BY JOSEPH R D'ANNUNZI FOR DEFT/GEICO ----------------------------------------------------------- PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED DEFT DAVID L CANT - BY KARL E ROMINGER ATTY FOR PLFF ----------------------------------------------------------- NOTICE MAILED TO DEFENDANT ----------------------------------------------------------- MOTION FOR JUDGMENT ON THE PLEADINGS - BY KARL E ROMINGER P PLFF ----------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR JUDGMEE THE PLEADINGS OF THE PLAINTIFF - BY KARL E ROMINGER ATTY F ----------------------------------------------------------- MOTION OF DEFT -GEICO GENREAL INSURANCE COMPANY - FOR JUDGN THE PLEADINGS - BY JOSEPH R D'ANNUNZIO ATTY FOR DEFT/GEICO ----------------------------------------------------------- DEFENDANT-GEICO GENERAL INSURANCE COMPANY-ANSWER TO MOTION JUDGMENT ON THE PLEADINGS - BY JOSEPH R D'ANNUNZIO ATTY FOR DEFT/GEICO 00/0000 MDA 2012 * * * * * * * * PLEAD ORDER ******** * ******** OR PON FOR DEF i R ATTY AGAINST TY FOR ON )R PLFF 'ENT ON PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2011-08757 HUSTON KL._aETH G (vs) GEICO GENERAL INS -?O ET AL Reference No..: Filed........: 11,/18/2011 Case Type ..... : TORT - MOTOR VEHICLE Time.........: 4:00 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 892 MDA 2012 Higher Crt 2.: ------------------------------------------------------------------- Ipl 3/26/2012 PRAECIPE FOR LISTING CASE FOR ARGUMENT - COUNTER MOTION FOR JUDGMENT - BY JOSEPH R A'ANNUNZIO ATTY FOR DEF ------------------------------------------------------------------- ?fQ 4/25/2012 ORDER OF COURT - 4/24/12 - IN RE: CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS - - WE NOW DENY PLFF'S MOITON AND GRANT DEFT'S MOTION - BY THE COURT ALBERT H MASLAND J COPIES MAILED 4/25/12 ------------------------------------------------------------------- 5/11/2012 PRAECIPE FOR ENTRY OF JUDGMENT FOR DEFT PURSUANT TO ORDER F COURT DATED 04-24-12 - BY KARL E ROMINGER ATTY FOR PLFF ------------------------------------------------------------------- 5/11/2012 NOTICE MAILED TO DEFENDANTS ------------------------------------------------------------------- ((3 .?? 5/11/2012 NOTICE OF APPEAL - TO SUPERIOR COURT BY KARL E ROMINGER AT FOR PLFF ------------------------------------------------------------------- 'IGI_(Zj 5/16/2012 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 892 MD 2012 ------------------------------------------------------------------- /Z2 5/16/2012 ORDER OF COURT - 5/16/12 - IN RE: PLFF SHALL FILE AND SERVE A COPY IN THE CHAMBERS OF THIS JUDGE A CONCISE STATEMENT OF ERRORS COMPLAINTED OF ON APPEAL WITHIN 21 DAYS OF THIS DATE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 5/16/12 ------------------------------------------------------------------- 123 5/25/2012 CONCISE STATEMENT OF ERRORS COMPLAINT OF ON APPEAL - BY KARL E ROMINGER ATTY FOR DEFT ------------------------------------------------------------------- (2y 7/10/2012 OPINION PURSUANT TOMAILEDPA 7/10/12 - BY THE COURT ALBERT H ------------------------------------------------------------------- 7/17/2012 NOTICE OF DOCKET ENTRIES MAILED TO KARL R ROMINGER ESQ AND JOSEPH P D'ANNUZIO ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts/Ad? End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 JDMT/DEFAULT 16.50 16.50 .00 PREACIPE ARGUME 19.75 19.75 .00 PREACIPE ARGUME 19.75 19.75 .00 JDMT 16.50 16.50 .00 APPEAL HIGH CT 57.00 57.00 .00 ------------------------ ------------ 221.50 221.50 .00 ****************;k****************************************************** ******** * End of Case Information TRUE COPY FROM RECORI In Testimony whereof, 1 here unto set my and the of said Court a?t?Carlisle, Pa. This 7 day of y,?_. 20 _ ,,J Prothon a CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania fhe undersigned. Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file. the transcript of the proceedings, if any, and the docket entries in the following matter: KENNETH G. HUSTON Vs. GEICO GENERAL INSURANCE COMPANY and DAVID L. CANT 2011-8757 CIVIL TERM 892 MDA 2012 'I he documents comprising the record have been numbered from No. 1 to 128, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the pellate Court is 07A7/2012. a i uel , rothonota y ma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please silzn and date copy, thereby acknowledging receipt of this record. Received in Superior Court Date Signature & Tit 12 MIDDLE 6uperior Court of Vennop1bania Karen Reid Bramblett,Esq. Middle District Pennsylvania Judicial Center Prothonotary P.O.Box 62435 Mary A.Graybill,Esq. 601 Commonwealth Avenue,Suite 1600 Deputy Prothonotary Harrisburg,PA 17106-2435 (717)772-1294 www.pacourts.us/courts/superior-court CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: Huston, K. v. Geico General Insurance Co. 892 MDA 2012 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 11-8757 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part July 30, 2012 1 Remand/Remittal Date: 10/04/2013 ORIGINAL RECIPIENT ONLY-Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Mary Araybill, Esq. Deputy Prothonotary /rh Enclosure Z3 cc: Joseph A. Hudock Jr., Esq. —j—,-in 'X The Honorable Albert H. Masland, Judge C"r) I -.� Karl Ernst Rominger, Esq. -<> -4 CD r —4 C:) > Huston, K. v. Geico General Insurance Co. 892 MDA 2012 Letter to: Buell, David D. Acknowledgement of Certificate of Remittal/Remand of Record(to be returned): Signature Date Printed Name I-AO3041-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 KENNETH HUSTON, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant V. GEICO GENERAL INSURANCE COMPANY, Appellee No. 892 MDA 2 `; ry Appeal from the Order Entered April 24, 2012 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 11-8757 BEFORE: BOWES, GANTMAN and OLSON, JJ. MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2013 Appellant, Kenneth Huston, appeals from the order of April 24, 2012 entering judgment on the pleadings in favor of Appellee, Geico General Insurance Company (Geico). Bound by Pennsylvania Supreme Court precedent, we affirm. The facts of this case are not in dispute. Appellant claimed he was injured in a motor vehicle accident with an uninsured driver who was subsequently convicted of driving under the influence of alcohol (DUI). Appellant made a claim for non-economic damages with his insurance carrier, Geico. Geico denied coverage of non-economic damages based upon Appellant's choice of limited tort insurance. Appellant instituted a cause of action before the Cumberland County Court of Common Pleas and both parties filed motions for judgment on the pleadings. Citing Rump v. Aetna J-A03041-13 Casualty and Surety Co., 710 A.2d 1093 (Pa. 1998), the trial court granted Geico's motion. This timely appeal followed.' On appeal, Appellant presents the following issues for our review: 1. Whether the holding in Rump v. Aetna Casualty Surety Company, 710 A.2d 1093 (Pa. 1998) was misinterpreted by the trial court in granting [Geico's] motion for judgment on the pleadings because Rump applies solely to 75 Pa.C.S.A. § 1705(d)(1)(ii) exception? 2. Whether the 75 Pa.C.S.A. § 1705(d)(1)(i) exception to the limited tort limitation dealing with DUI drivers applies to the instant case, and [] Appellant should therefore be eligible to recover non-economic damages? Appellant's Brief at 6.2 Appellant argues that the trial court's erroneous reliance on Rump essentially "punish[es] the victims of uninsured drunk drivers." Id. at 12. Appellant claims Rump dealt specifically with out-of-state drivers, but not DUI accidents. Id. Thus, he contends '"the instant case therefore falls under the exception to the limited tort limitations carved out by § 1705(d)(1)(i), and he should be treated as if he selected the full tort option and eligible to seek pain and suffering damages against his [uninsured motorist] policy." Id. Accordingly, Appellant contends the trial court erred in granting Geico's motion for judgment on the pleadings. Appellant and the trial court complied timely with Pa.R.A.P. 1925. 2 While Appellant presents two issues in his statement of questions involved, in the argument section of his brief, Appellant argues both issues together. _ 2 _ J-A03041-13 "[A]ppellate review of a trial court's decision to grant or deny judgment on the pleadings is limited to determining whether the trial court committed an error of law or whether there were facts presented which warrant a jury trial." Erie Ins. Exch. v. Conley, 29 A.3d 389, 391 (Pa. Super. 2011). The Motor Vehicle Financial Responsibility Law (MVFRL) provides in relevant part: (1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault: (i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident; (ii) is operating a motor vehicle registered in another state; (iii) - intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or (iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage). 75 Pa.C.S.A. § 1705(d)(1)(i). - 3 - v J-AO3041-13 The MVFRL further provides: (2) A person precluded from maintaining an action for noneconomic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneconomic damages. 75 Pa.C.S.A. § 1731(d)(2). In Rump, as Appellant notes, our Supreme Court was called upon to examine a different exception to limited tort coverage under Section 1705(d)(1)(ii) above, relating to injuries inflicted by an uninsured, out-of- state driver. While noting that Rump dealt specifically with Section 1705(d)(1)(ii),3 the Supreme Court granted allocatur in order to determine whether the language under Section 1705(d)(1)(iv) applied to all subparts of Section 1705. Id. at 1096. Ultimately, the Court concluded that it did. Id. at 1097. More specifically, the Rump Court, looking at the plain language of the MVFRL, determined: the limitations of 75 Pa.C.S. § 1731(d)(2) apply to all the subparagraphs contained in paragraph (1) of subsection 1705(d). Accordingly, a driver who elects limited tort coverage is unable to collect noneconomic damages from uninsured or underinsured motorist provisions of his insurance policy for any accidents set forth in paragraph 1 of 75 Pa.C.S. § 1705(d) because of the limitation at 75 Pa.C.S. § 1731(d)(2). This conclusion is consistent with the policy behind the enactment of the MVFRL, the concern over the spiraling costs of insurance to residents of Pennsylvania. In three of 3 See Rump, 710 A.2d at 1095, n.4. - 4 - 3-A03041-13 the four exceptions contained in paragraph (1) of 75 Pa.C.S. § 1705(d), the General Assembly must have concluded that the importance of limiting insurance costs were outweighed by the need to punish or deter tortfeasors who drove under the influence (subparagraph (i)), who intentionally injured others (subparagraph (iii)) and who operated an uninsured vehicle (subparagraph (iv)). In the fourth exception, the General Assembly obviously concluded that it needed to level the playing field between Pennsylvania limited tort insureds and the rights of out-of- state motorists since the MVFRL does not limit the ability of out-of-state motorists from recovering noneconomic damages from Pennsylvania tortfeasors and the allowance of this exception will not affect the insurance rates charged to Pennsylvania motorists. However, the limitation placed on these four exceptions by 75 Pa.C.S. § 1731(d)(2) reflects a legislative determination that allowing uninsured claims under the four exceptions would not deter or punish unacceptable conduct or level the playing field between parties. Instead, allowing such a recovery from the "limited tort" driver's uninsured or underinsured provisions of his policy would act to eliminate the cost savings associated with choosing the limited tort option because it would have an upward effect on insurance rates charged to Pennsylvania insureds. Id. (emphasis added). The Supreme Court found that such a conclusion does not foreclose recovering non-economic damages from the tortfeasor, but merely limits the ability to recover from the limited tort insured's own insurance carrier. Id. at 1098. Based upon our standard of review and established case law, we conclude that the trial court did not err in granting Geico's motion for judgment on the pleadings. Appellant elected limited tort coverage. As a matter of law, he was simply not permitted to recover non-economic damages from his own insurance carrier, despite the fact that an uninsured drunk driver allegedly injured him. - 5 - J-A03041-13 Order affirmed. Judgment Entered. Interimleputy Proth notary Date: 2/22/2013 - 6 -