The URL can be used to link to this page

Home My WebLink About13-0578WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Brian Breen, Esquire Pa. ID: 81416 Attorne s fo Pl ' t'ff Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 (215) 627-6900 y r am > , Certain Underwriters at Lloyds' London, subscribing to Policy No. CK21102A10 COURT OF COMMON PLEAS CUMBERLAND COUNTY CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND RIGGING, INC One Lime Street, London, EC3M7HA England Plaintiff, v. NITTANY PILOT CAR & SAFETY CO 14 Meadow Ridge Drive Shippensburg, Pennsylvania 17257 M&D PILOT CAR P.O. Box 175 Lempster, New Hampshire, 03605-0175 BAYSIDE ENGINEERING 600 Unicorn Park Drive Woburn, Massachusetts 01801 Defendants. NOTICE TO DEFEND CIVIL ACITON -LAW ,~--, ~, ..s. rn ~ w ~ .., r^ , ~ (~ ,,. ,,: r-- ~ -~' c:.~ ,_.. ;;r ~" ~/v.3. 7 ~j~'~ Cu st, 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 an 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 781736.1 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 THE 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 1-800-990-9108 717-249-3166 AVISO Le han demandado en corte. Si usted quiere defenderse contra las demandas nombradas en las paginas siguientes, tiene viente (20) dias a partir de recibir esta demanda y notificacion para entablar personalmente o por un abogado una comparecencia escrita y tambien para entablar con la corte en forma escrita sus defensas y objeciones a las demandas contra usted. Sea advisado que si usted no se defiende, el caso puede continuar sin usted y la corte puede incorporar un juicio contra usted sin previo aviso para conseguir el dinero demandado en el pleito o para conseguir cualquier otra demanda o alivio solicitados por el demandante. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE ABOGADO (O NO TIENE DINERO SUFICIENTE PARR PAGAR A UN ABOGADO), VAYA EN PERSONA O LLAME POR TELEFONO LA OFICINA NOMBRADA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. ESTA OFICINA PUEDE PROPORCIONARLE LA INFORMACION SOBRE CONTRATAR A UN ABOGADO. SI LISTED NO TIENE DINERO SUFICIENTE PARA PAGAR A UN ABOGADO, ESTA OFICINA PUEDE PROPORCIONARLE INFORMACION SOBRE AGENCIAS QUE OFRECEN SERVICIOS LEGALES A PERSONAS QUE CUMPLEN LOS REQUISITOS PARR UN HONORARIO REDUCIDO O NINGUN HONORARIO. 781736.1 SERVICIO DE REFERENCIA LEGAL: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Brian Breen, Esquire Attorneys for Plaintiff, Certain Underwriters at Lloyds, London subscribing to Policy No. CK21102A10 Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 781736.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Brian Breen, Esquire Pa. ID: 81416 Attorneys for Plaintiff, Independence Square West Certain Underwriters at Lloyds' London, The Curtis Center, Suite 1130 East subscribing to Policy No. CK21102A10 Philadelphia, PA 19106 (215) 627-6900 COURT OF COMMON PLEAS CUMBERLAND COUNTY CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND RIGGING, INC One Lime Street, London, EC3M7HA England Plaintiff, v. NITTANY PILOT CAR & SAFETY CO 14 Meadow Ridge Drive Shippensburg, Pennsylvania 17257 M&D PILOT CAR P.O. Box 175 Lempster, New Hampshire, 03605-0175 BAYSIDE ENGINEERING 600 Unicorn Park Drive Woburn, Massachusetts 01801 Defendants. CIVIL ACITON -LAW NO.: I3 ~ S ~7~ G`~.,~ Plaintiff, Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10 (hereinafter, "Lloyd's") as subrogees of JR Trucking and Rigging, Inc. by and through its attorneys, Wilson Elser Moskowitz Edelman & Dicker LLP, hereby states as follows as its Complaint against Defendants, Nittany Pilot Car & Safety Co., Inc., 5377607. I M&D Pilot Car and Bayside Engineering (hereinafter referred to collectively as "Escorts"): PARTIES 1. Plaintiff, Lloyd's, is in the business of providing insurance coverage and its principal place of business is located at One Lime Street, London, EC3M7HA England. Plaintiff sues herein as subrogated insurer of the Cargo in suit, having paid the insurance claim of its Insured, JR Trucking and Rigging, Inc. 2. JR Trucking and Rigging Inc., the Plaintiff s insured, is a Pennsylvania corporation with its principal place of business located at 12 Mengle Street, Pottsville, Pennsylvania 17901. 3. Defendant, Nittany Pilot Car & Safety Co., Inc., is believed to be a corporation existing under the laws of the State of Pennsylvania, with its principal place of business located in Cumberland County at 14 Meadow Ridge Drive, Shippensburg, Pennsylvania 17257. 4. Defendant M&D Pilot Car is believed to be a corporation existing under the laws of the State of New Hampshire, with its principal place of business located in Lempster, New Hampshire. 5. Bayside Engineering is believed to be a corporation existing under the laws of the State of Massachusetts, with its principal place of business located in Woburn, Massachusetts 01801. 6. Plaintiff sues herein on its own behalf and as subrogated insurer for all who may now have or hereafter acquire an interest in this action. 2 5377607.1 7. Plaintiff and those on whose behalf it sues, has performed all conditions precedent required under applicable law to maintain this action. JURISDICTION AND VENUE 8. This Court has jurisdiction over the subject matter of this action and venue is proper because at all times relevant to the claims asserted herein, Defendants' principal place of business was located in Cumberland County, Pennsylvania. 9. Upon information and belief Defendants at all material times conducted business within the State of Pennsylvania as escorts and engineers giving advices to common carriers of cargo, including deciding the route and escorting said common carriers for the pick up, carriage and delivery of the subject Cargo from Biddeford, Maine to Anderson, South Carolina, and the provision of services related thereto, and accordingly, is subject to the in personam jurisdiction of this court. FACTS 10. This action involves damage to a Metso Paper THRU-AIR® dryer roll used in the manufacturing of tissue paper (hereinafter referred to as the "Cargo"), which collided with an overpass at the 495 bridge on Massachusetts I95 on or about February 22, 2011 (hereinafter referred to as the "Incident"), while it was being transported by the Plaintiff's Insured, motor carrier JR Trucking and Rigging, Inc, from Metso Paper USA Inc. located at 516 Alfred Street, Biddeford, Maine to First Quality Tissues located at 441 Masters Boulevard, Anderson, South Carolina 29626. 11. On or about January 26, 2011, Defendant, Nittany Pilot Car & Safety Co., Inc., was retained by the Plaintiff's Insured to escort this Motor Carrier and the Cargo to Anderson, South Carolina. 3 5377607.1 12. Upon information and belief, Nittany Pilot Car & Safety Co., Inc., consulted with Defendats M&D Pilot Car and Bayside Engineering for assistance with certification of the Route provided to the Plaintiffs insured for the transport of the subject Cargo. 13. The Defendants negligently instructed the Plaintiff's Insured, including but not limited to certifying that the route prescribed had 16'0" clearance and ultimately causing the Cargo to collide with an overpass ("the Incident") at a high speed, resulting in significant damage to the Cargo, in excess of $88,000.00. CAUSES OF ACTION COUNT I -NEGLIGENCE 14. Plaintiff incorporates by reference each and every allegation made in Paragraphs 1 through 13 as if set forth fully at length herein. 15. Defendants were under a duty to protect the Plaintiff's Insured from injury. 16. Defendants breached that duty, failed to exercise ordinary care and as a result, the Plaintiff was caused significant damages totaling $88,000.00 exclusive of costs, attorneys' fees and interest. 17. The damage to the Cargo proximately resulted from the Defendants' breach of their duties to exercise ordinary and reasonable care. 18. The damage to the Cargo was not caused by the inherent nature of the Cargo. 19. The damage to the Cargo was not caused by the fault of the Plaintiff's Insured, JR Trucking & Rigging. 4 5377607.1 20. The Incident was the result of the Defendants' negligent and reckless failure to properly perform its duties as an escort. 21. The Defendants' fundamental breaches and material deviations from it duty of ordinary care and from the terms of the contract between the Motor Carrier and the Escort caused this Incident and the resulting loss. 22. Defendants breached the fiduciary duties owed to the Plaintiff's Insured. 23. The loss of the cargo was caused by the negligence of Defendants, including but not limited to the breach of their duties to properly attend to, care for, escort, guard, secure, monitor and protect the Cargo during its motor carriage from Maine to South Carolina. 24. By reason of the aforesaid, Plaintiff and those on whose behalf they sue have sustained damages in the amount of $88,000.00, no part of which has been paid and for which Defendants are jointly and severally liable without limitation of any kind. COUNT II -BREACH OF CONTRACT 25. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 24 of this Complaint. 26. On or about January 26, 2011, the Plaintiffs Insured entered into a contract pursuant to which the Defendant, Nittany Pilot Car & Safety Co. Inc. agreed to escort the Plaintiff s Insured with the Cargo from its origin in Maine to its destination in South Carolina. 27. The Plaintiff s Insured and the Defendants' agreement constituted a valid and binding contract under the law. 5 5377607. I 28. The Defendant was obligated to safely escort the Plaintiff's Insured and its Cargo under this valid contract. 29. The Defendants' services were not performed within the terms of the agreement and the Defendants' performance was defective, non-conforming and unacceptable. 30. Defendant, Nittany Pilot Car & Safety Co., Inc. breached its contract with the Plaintiff s Insured to safely escort the motor carrier and cargo to the consignee's destination in Anderson, South Carolina. 31. As a result of the Defendants Breach of Contract, Defendant is liable to the Plaintiff for the damages caused by their breach, totaling $88,000.00. 32. Plaintiff demands a trial by jury. COUNT III -NEGLIGENT MISREPRESENTATION 33. Plaintiff incorporates by reference each and every allegation made in Paragraphs 1 through 32 as if fully set forth herein. 34. Defendants, are escort and engineering businesses and they owed Plaintiffs Insured duties of care when arranging and certifying the transport and escorting the Motor Carrier and its Cargo via road from Maine to South Carolina. 35. Defendants knew or reasonably should have known that the route which they instructed the Plaintiff's Insured to take was an unsafe for the Motor Carrier to travel on due to the low overpass and the height of the Motor Carrier and its Cargo. 6 5377607. I 36. Defendants instructed the Plaintiff's Insured to travel on this route with actual or constructive knowledge of the fact that the Plaintiffs Insured would rely on Defendants' instruction that the exit was proper. 37. Plaintiffs Insured relied on the Defendants' instruction and its certification that the entire Route was over 16'0". 38. Based on Plaintiffs Insured's reliance on the Defendants' negligent misrepresentation, Plaintiffs Insured suffered a collision with the overpass and severe damage to the Cargo resulted. The Defendant was aware of the potential for the Motor Carrier and its Cargo to collide with low overpasses. 39. Therefore, Plaintiff is entitled to $88,000, that it paid for damages caused by the collision of the Cargo and the overpass. Wherefore, as a result of Defendants' conduct set forth herein and as detailed above, Plaintiff is entitled to compensation for all compensatory damages, reasonable attorney's fees, costs, interest and any other remedies allowed under Pennsylvania Law. 7 5377607.1 WHEREFORE, Plaintiff demands judgment in its favor and against Defendants in the amount of Eighty Eight Thousand Dollars ($88,000.00), which includes the Plaintiff's insureds, JR Trucking and Rigging Inc.'s $5,000.00 policy deductible, plus costs and any other relief this honorable Court deems necessary. Dated: February ~ , 2013 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP ,---- gy. ~ .~ Brian Breen, Esquire Attorneys for Plaintiff, Certain Underwriters at Lloyds, London subscribing to Policy No. CK21102A10 Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 8 5377607.1 VERIFICATION I, Brian Breen, do hereby state that I am the attorney for Certain Underwriters at Lloyd's, London subscribing to Policy No. CK21102A 10, and the facts contained in the foregoing Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief and I make these statements subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. /'~ ,~ /~ ~ ~/ Brian Breen Dated: ~'~/ /,(3 9 5377607.1 d ' CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING, INC., Plaintiff V. CA ZA a NITTANY PILOT CAR& SAFETY CO., ZZ rn: r, M&D PILOT CAR and BAYSIDE '- �� rq ENGINEERING, r :- CD Defendants o �-- PRAECIPE TO ENTER APPEARANCE 5c: Ca w TO THE PROTHONOTARY: Kindly enter my appearance as attorney for Defendant M&D Pilot Car in the above- captioned matter. Date: 3�02 a O/3 i Bret P. Shaffer, Esquire I.D.# 309180 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Defendant M&D Pilot Car �t CERTIFICATE OF SERVICE I hereby certify that on March 22, 2013, 1, Bret P. Shaffer, Esquire of Banc Scherer LLC, did serve a copy of the foregoing document, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman& Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Bayside Engineering 600 Unicorn Park Drive Woburn, MA 01801 Defendant Nittany Pilot Car& Safety Co. 14 Meadow Ridge Drive Shippensburg, Pennsylvania 17257 Defendant Bret P. Shaffer, Esquire CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING, INC., Plaintiff V. NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE C_- , , 3 �_"'n ENGINEERING, ,-n 01 Defendants z `° NOTICE TO PLEAD c � To: Certain Underwriters at Lloyd's London y� �:? ' '' Subscribing to Policy Number CK21102A10 �'',, FX c/o Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman& Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 YOU ARE HEREBY DIRECTED TO PLEAD TO THE ATTACHED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS OF SERVICE THEREOF,OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Bret P. Shaffer, Esquire I.D.# 309180 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Defendant M&D Pilot Car CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING, INC., Plaintiff V. NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants PRELIMINARY OBJECTIONS OF M&D PILOT CAR TO THE COMPLAINT OF PLAINTIFF AND NOW, comes Defendant M&D Pilot Car, by and through its attorneys, Baric Scherer LLC, and files the within Preliminary Objections and, in support thereof, sets forth the following: I. INSUFFICIENT SPECIFICITY IN A PLEADING 1. Pa.R.C.P. 1028(a)(3)provides that preliminary objections may be filed where there is insufficient specificity in a pleading. 2. Paragraph 13 of the Complaint states that the "[d]efendants negligently instructed the Plaintiff's Insured"but fails to specify what action of Defendant M&D Pilot Car specifically constitutes negligent behavior. 3. Paragraph 15 of the Complaint states that the "[d]efendants were under a duty to protect the Plaintiff's Insured from injury"but fails to state how such duty existed to Plaintiff's Insured by Defendant M&D Pilot Car specifically. 4. Paragraph 16 of the Complaint states that the"[d]efendants breached that duty, failed to exercise ordinary care"but fails to state how Defendant M&D Pilot Car specifically failed to exercise ordinary care. 5. Paragraph 17 of the Complaint states that the damage "proximately resulted from the Defendants' breach of their duties"but the Complaint fails to provide with any specificity why such duties existed with regard to Defendant M&D Pilot Car. 6. Paragraph 20 of the Complaint states that"the Incident was the result of the Defendants' negligent and reckless failure to properly perform its duties as an escort"but fails to assert which defendant was providing escort duties. 7. Paragraph 21 of the Complaint lacks specificity in that it conflates "deviations from it [sic] duty of ordinary care" and breaches "from the terms of the contract"without specifying which defendant had a contract and which defendants' behavior constituted these "deviations" and "breaches." 8. Paragraph 22 of the Complaint lacks specificity as to why Defendant M&D Pilot Car specifically owed a fiduciary duty to Plaintiff's Insured and how such a duty, if it existed, was breached specifically by Defendant M&D Pilot Car. 9. Paragraph 23 of the Complaint fails to identify which defendant is being addressed by the specific allegations therein,what specific conduct led Plaintiff to its allegations, and how such allegations relate specifically to Defendant M&D Pilot Car. 10. Paragraph 24 of the Complaint alleges that Defendants are "jointly and severally liable without limitation of any kind"but fails to specify what relationship amongst the parties existed to justify this standard. 11. Paragraph 27 of the Complaint refers to "Defendants' agreement"but does not specify whether Defendant M&D Pilot Car was party to such agreement. 12. Paragraph 28 of the Complaint fails to identify which defendant it is referencing. 13. Paragraph 29 of the Complaint again fails to identify which defendant it is referencing. 14. It cannot be determined with any clarity from Paragraph 31 of the Complaint who Plaintiff is alleging to be liable for the breach of contract cause of action. 15. Paragraph 34 of the Complaint fails to specify why a duty of care was owed specifically by M&D Pilot Car to Plaintiff. 16. Paragraph 34 of the Complaint fails to specify which defendant is an escort business and which is an engineering business. 17. Paragraph 34 of the Complaint fails to specify whether Defendants were each acting in the capacity of escorts, engineers, or both during the time of the alleged facts. 18. Paragraph 34 of the Complaint fails to specify which defendant was responsible for the various "arranging," "certifying,"and "escorting" activities. 19. Paragraph 35 of the Complaint fails to specify which defendant it is referencing. 20. Paragraph 35 of the Complaint fails to specify why Defendant M&D Pilot Car specifically knew or reasonably should have known that the route was unsafe. 21. Paragraph 35 of the Complaint fails to specify why Defendant M&D Pilot Car specifically knew or reasonably should have known that the route was unsafe on the day of the traffic accident. 22. Paragraph 35 of the Complaint fails to specify how or why Defendant M&D Pilot Car specifically knew the height of the Motor Carrier and its Cargo. 23. Paragraph 36 of the Complaint fails to specify how Defendant M&D Pilot Car specifically instructed Plaintiff's Insured to travel the route in question. 24. Paragraph 36 of the Complaint fails to specify why Defendant M&D Pilot Car specifically had or should have had actual or constructive knowledge of"the fact that the Plaintiff's Insured would rely on Defendants' instruction" on the date in question. 25. Paragraph 37 of the Complaint fails to specify which defendant it is addressing in regard to the Insured's reliance. 26. Paragraph 37 of the Complaint fails to specify which defendant specifically supplied the instruction and certification that the entire Route was over 16'0". 27. Paragraph 38 of the Complaint fails to specify which defendant it is addressing. 28. Paragraph 38 of the Complaint fails to specify how or why Defendant M&D Pilot Car specifically was aware of the potential for the Motor Carrier and its Cargo to collide with low overpasses on the date in question. 29. Paragraph 38 of the Complaint fails to specify what constitutes "low overpasses" and how or why Defendant M&D Pilot Car specifically would have known Plaintiff's particular definition, especially for the date in question. 30. Nowhere in the Complaint does Plaintiff state with any specificity what relationship allegedly existed between Plaintiff and Defendant M&D Pilot Car. 31. Plaintiff's Complaint consistently refers to Defendants in the plural without any regard as to what specific role any particular defendant played in the alleged harm. 32. Plaintiff fails to state with specificity what constitutes the damages totaling $88,000.00, for which relief is requested. WHEREFORE, Defendant M&D Pilot Car respectfully requests that its objections be sustained and Plaintiff be directed to amend its Complaint to provide greater specificity in its averments, or in the alternative,that Plaintiff's Complaint be dismissed with prejudice. II. FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT 33. Paragraphs 1 through 32, as set forth above, are hereby incorporated by reference as though set forth fully herein. 34. Pa.R.C.P. 1028(a)(2)provides that preliminary objections may be filed where a pleading fails to conform to law or rule of court. 35. Pa.R.C.P. 1019(f) provides that averments of time, place and items of special damage shall be specifically stated. 36. Plaintiff fails to state in its Complaint specifically when and where Defendant M&D Pilot Car made representations to Plaintiff's insured. 37. Plaintiff fails to state with specificity where the traffic accident occurred, averring only that the Cargo collided with an overpass at the 495 bridge on Massachusetts I95. 38. Plaintiff asserts $88,000.00 in damages but provides no specific detail as to how that amount was determined. 39. Pa.R.C.P. 1019(h) provides that when any claim is based upon a writing,the pleader shall attach a copy of the writing, or the material part thereof, or the pleader shall state the reason why such a copy is not accessible. 40. Plaintiff alleges that Defendants breached a contract with its Insured but has not attached a copy of the contract to the Complaint or explained why such a copy is not accessible. 41. Throughout its Complaint, Plaintiff references representations, instructions, certifications and the like provided by Defendants, but Plaintiff has not attached any document supporting the same or stated that such document exists but is inaccessible. WHEREFORE, Defendant M&D Pilot Car respectfully requests that its objections be sustained and Plaintiff be directed to amend its Complaint to conform to law or rule of court, or in the alternative, that Plaintiff s Complaint be dismissed with prejudice. III. LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 42. Paragraphs 1 through 41, as set forth above, are hereby incorporated by reference as though set forth fully herein. 43. Pa.R.C.P. 1028(a)(4)provides that preliminary objections may be filed where there is legal insufficiency of a pleading. 44. Plaintiff's Complaint fails to identify what relationship existed between its Insured and Defendant M&D Pilot Car. 45. Plaintiff's Complaint fails to state why a duty of care existed between its Insured and Defendant M&D Pilot Car. 46. In short, Plaintiff's Complaint fails to state why Defendant M&D Pilot Car is an appropriate party to this case. 47. Plaintiff's Complaint is legally insufficient,particularly in regard to Defendant M&D Pilot Car. WHEREFORE, Defendant M&D Pilot Car respectfully requests that its objections be sustained and Plaintiff's Complaint be dismissed with prejudice. IV. MISJOINDER OF A CAUSE OF ACTION 48. Paragraphs 1 through 47, as set forth above, are hereby incorporated by reference as though set forth fully herein. 49. Plaintiff's Complaint alleges the torts of negligence and negligent misrepresentation in addition to alleging breach of contract. 50. Pursuant to the "gist of the action"doctrine, Plaintiff may not join the torts of negligence and negligent misrepresentation to an action for breach of contract. WHEREFORE, Defendant M&D Pilot Car respectfully requests that its objections be sustained and Plaintiff's counts for negligence and negligent misrepresentation be dismissed with prejudice. Respectfully submitted, BARIC SCHERER LLC Date: 3 a 2v t 3 T Bret P. Shaffer Esquire I.D.# 309180 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Defendant M&D Pilot Car VERIFICATION I verify that the statements made in the foregoing Preliminary Objections of M&D Pilot Car to the Complaint of Plaintiff are true and correct to the best of my knowledge, information, and belief. This verification is signed by Bret P. Shaffer, Esquire, attorney for Defendant M&D Pilot Car and is based upon the statements provided by Defendant, as well as documents reviewed by the undersigned as attorney for Defendant. This verification will be substituted and ratified by a verification signed by Defendant, who is presently unavailable to sign said verification. I understand that false statements herein are made subject to penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authorities. Bret haffer, Esquire Dated: CERTIFICATE OF SERVICE I hereby certify that on March 22, 2013, 1, Bret P. Shaffer, Esquire of Baric Scherer LLC, did serve a copy of the Preliminary Objections of M&D Pilot Car to the Complaint of Plaintiff, by first class U.S. mail,postage prepaid,to the parties listed below, as follows: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman& Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Bayside Engineering 600 Unicorn Park Drive Woburn, MA 01801 Defendant Nittany Pilot Car& Safety Co. 14 Meadow Ridge Drive Shippensburg, Pennsylvania 17257 Defendant Bret P. Shaffer, Esquire MARSHALL DENNEHEY WARNER COLEMAN & GOGGiN F r BY: Gregory J. Kelley, Esquire PA ID No. 67968 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 T: 610-354-8273 / F: 610-354-8299 gjkelleyd!mdwe .coin Attorney for Defendant Bayside Engineering CERTAIN UNDERWRITERS AT LLOYD'S COURT OF COMMON PLEAS OF LONDON SUBSCRIBING TO POLICY CUMBERLAND COUNTY, PA NUMBER CK21102a10, as subrogees of JR TRUCKING AND RIGGING, INC. CIVIL ACTION — LAW Plaintiff V, NITTANY PILOT CAR & SAFETY CO., NO. 13-578 M&D PILOT CAR and 13AYSIDE ENGINEERING, INC. Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Gregory J. Kelley, Esquire as counsel for Defendant, Bayside Engineering, Inc. in the above-referenced action. �r By: 'GREG RYf . , :LEY, ESQT Dated: March 21, 2013 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: Gregory J. Kelley, Esquire PA ID No. 67968 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 T: 610-354-8273 / F: 610-354-8299 gjkelley ? dwc�,.com Attornev for Defendant Bayside Engineering CERTAIN i1NDERWRITERS AT LLOYD'S COURT OF COMMON PLEAS OF LONDON SUBSCRIBING TO POLICY CUMBERLAND COUNTY, PA NUMBER CK21102a10, as subrogees of JR TRUCKING AND RIGGING, INC. CIVIL ACTION—LAW Plaintiff IV. NITTANY PILOT CAR & SAFETY CO., NO. 13-578 M&D PILOT CAR and BAYSIDE ENGINEERING, INC. Defendants CERTIFICATE OF SERVICE I certify that I served a copy of Defendant, Bayside Engineering, Inc.'s Entry of Appearance on all parties via U.S. First Class mail, postage prepaid, as set forth below: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorneys for Plaintiff' By: GREG Y� K EY, ESQUI Dated: March 21, 2013 20/2197155 NI "Thomas 5. Lee, Esquire Attorney 1,D. 489440 James L. Goldsmith, Esquire' � Attorne I.D. #27115 I Caldwell & Kearns 3631 North Front Street = ,{�,16 I larrisburg. PA 171 10 ("171232-7661 (717) 232-2766 (fax) j tfw n,j [Ur lkkil 'ant,,N'iltc n� Pilot Car& Sczfet�Ct�rr2pczny __ �__� _ _� CI�IZ"I"A IN UNDERWRITERS AT IN THE COURT Oh COMMON PLEAS I.1.0YD'S ;LONDON SUBSCRIBING : CUMBERLAND COUNTY, PENNSYLVANIA TO POL.IC'Y NUMBER CK21102al0, as subgroces of JR TRUCKING AND NO.: 13-578 I KIGING.. INC., Plaintiff CIVIL ACTION -- I..AW Vs. JURY TRIAL DEMANDED NITTANY PILOT CAR& SAFETY CO.. M&D PILOT CAR and BAYSIDE ENGINEERING. Defendants PRAECIPE FOR ENTRY OF APPEARANCE 1'0 THE! PROTHONOTARY: Please enter our appearances on behalf of Defendant Nittany Pilot Car and Safety Co. in the above-captioned matter. Respectfully submitted, CALDWELL & KEARNS LI Dated: March 22 2013 - '�'' ( Thomas S. Lee, Esquire Attorney I.D. #89440 James L. Goldsmith, Esquire Attorney I.D. #27115 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) tlee(a?CKLegal.net jgoldsmith(c�CKI,cgal.net attorneys bi,Defendant Nittant.Pilot Car&S,-?Pi y Co. CERTIFICATE OF SERVICE AND NOW, this 22nd day of March, 2013. 1 hereby certify that I have served a copy ot'the Praecipe for Entry of Appearance on the following by depositing a true and correct copy ol'the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Brian Breen Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Counsel,fin- Plainlifl' M&D Pilot Car P.O. Box 175 Lempster, NH 03605-0175 Defendant Bayside Engineering 600 Unicorn Park Drive Woburn., MA 01801 Dekndanl CALDWELL & KEARNS By: ?079-o I(2(r I If), Thomas S. Lee,Esquire Attorney I.D.#89440 James L. Goldsmith, Esquire 13 APR -$ P14i Attorney I.D.#27115 Caldwell&Kearns CJLk`tT- 3631 North Front Street Harrisburg, PA 17110 (717)232-7661 (717)232-2766 (fax) Attorneys LOT Defendant,Nittany Pilot Car&&Letv Co. CERTAIN UNDERWRITERS AT IN THE COURT OF COMMON PLEAS LLOYD'S LONDON SUBSCRIBING CUMBERLAND COUNTY, PENNSYLVANIA TO POLICY NUMBER CK21102AI 0, as subrogees of JR TRUCKING AND NO.: 13-578 RIGGING, INC., Plaintiff CIVIL ACTION—LAW VS. JURY TRIAL DEMANDED NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants DEFENDANT NITTANY PILOT CAR& SAFETY CO.'S ANSWER WITH NEW MATTER AND CROSS CLAIM TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Nittany Pilot Car & Safety Co. (hereinafter "Answering Defendant"), by and its attorneys, James L. Goldsmith, Esquire and Thomas S. Lee, Esquire, CALDWELL & KEARNS, P.C., and files the following Answer with New Matter and Cross Claim to Plaintiffs Complaint, and avers as follows: I It is admitted only that Plaintiff is who it says it is. The remaining allegations set forth in this Paragraph are denied on the basis that Answering Defendant lacks information sufficient to form a belief as to the truth thereof. 2. It is admitted only that Plaintiff is who it says it is. The remaining allegations set forth in this Paragraph are denied on the basis that Answering Defendant lacks information sufficient to form a belief as to the truth thereof. 3. Admitted. 4. Denied. Answering Defendant lacks information upon which to make a determination as to the truth of the allegation set forth in this Paragraph and accordingly these allegations are denied. 5. Denied. Answering Defendant lacks information upon which to make a determination as to the truth of the allegation set forth in this Paragraph and accordingly these allegations are denied. 6. Denied. Answering Defendant lacks information upon which to make a determination as to the truth of the allegation set forth in this Paragraph and accordingly these allegations are denied. 7. Denied. Answering Defendant lacks information upon which to make a determination as to the truth of the allegation set forth in this Paragraph and accordingly these allegations are denied. JURISDICTION AND VENUE 8. Admitted. 9. Admitted. FACTS 10. Admitted. 11. Admitted. 12. Admitted. 13. Denied. The allegations set forth in this Paragraph constitute conclusions of law to which no further response is required and accordingly these allegations are denied. CAUSES OF ACTION COUNT I-NEGLIGENCE 14. No response required. 15. Denied, The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required, and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 16. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required, and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 17. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required, and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 18. Denied. Answering Defendant lacks information sufficient to form a belief as to the truth of the allegations set forth in this Paragraph and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 19. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 20. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 21. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the "tent relevant. 22. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 23. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 24. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. WHEREFORE, Defendant JR Trucking and Rigging, Inc. demands judgment in its favor and against Plaintiff, Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A 10 as subrogees of JR Trucking and Rigging, Inc. together with such other relief as this Court shall deem appropriate. COUNT H-BREACH OF CONTRACT 25. No response required. 26. Admitted. 27. Admitted. 28. Admitted in part. The agreement speaks for itself and any characterization ascribed to it by Plaintiff is denied. It is further acknowledged that Plaintiff received and reviewed the said agreement prior to execution. It is denied that Answering Defendant failed under its obligation to escort as set forth in the aforementioned contract. 29. Denied. The agreement speaks for itself and any characterization ascribed to it by Plaintiff is denied. It is denied that Answering Defendant breached the contract and any obligations ascribed to it under the agreement. To the contrary, it is denied that Answering Defendant's performance was defective,non-conforming and unacceptable. 30. Denied. The averments of this Paragraph are conclusions of law and not averments of fact and no answer is required. 31. Denied. No breach of contract occurred. Further, that Plaintiff suffered any harm as a result of the conduct of Answering Defendant is denied for the reasons set forth above and further set forth in New Matter. 32. Admitted. COUNT III—NEGLIGENT MISREPRESENTATION 33. No response required. 34. Denied. Answering Defendant is an escort business. Answering Defendant is not an engineering business. The remaining allegations in this Paragraph constitute conclusions of law to which no further response is required and accordingly these allegations are denied and proof thereof is demanded to the extent relevant. 35. Denied. Answering Defendant had no knowledge that the representations attributed to it were false as averred by Plaintiff. 36. Denied. Answering Defendant had no knowledge that the representations attributed to it were false as averred by Plaintiff. 37. Denied. Answering Defendant had no knowledge that the representations attributed to it were false as averred by Plaintiff. 38. Denied. Answering Defendant had no knowledge that the representations attributed to it were false as averred by Plaintiff. 39. Denied. Answering Defendant had no knowledge that the representations attributed to it were false as averred by Plaintiff. ui WHEREFORE, Defendant Nittany Pilot Car& Safety Co. demands judgment in its favor and against Plaintiff, Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A 10 as subrogees of JR Trucking and Rigging,Inc. together with such other relief as this Court shall deem appropriate. NEW MATTER 40. Defendant Nittany Pilot Car& Safety Co. hereby incorporates Paragraphs I through 39 as though the same were set forth in full herein. 41. Plaintiff s Complaint fails to state a cause of action against Answering Defendant upon which relief may be granted as a matter of law. 42. Plaintiff s claim may have been in whole or in part caused as a direct result of negligence of other persons other than Answering Defendant under the circumstances at the time of the motor vehicle accident of February 22, 2011. 43. Plaintiffs claims and/or damages if any were caused by the acts and/or omissions on the part of persons or entities over whom Answering Defendant had neither control nor right of control as a matter a law. 44. Plaintiffs claims and/or damages if any were not a direct and/or proximate and/or legal result of the acts and/or omissions on the part of Defendants. 45. Plaintiff s claims may be barred and/or limited by the doctrines of resjudicata and/or collateral estoppels. 46. Defendants breached no duty of care owed to Plaintiff under the material circumstances described by Plaintiff in its Complaint. 47. Answering Defendant reserves the right to raise the defense of comparative negligence as applicable under controlling law. 48. Plaintiff's claims may be barred and/or limited by Plaintiff s failure to have mitigated its damages as required by law. 49. Plaintiff's damages as claimed might be excessive and exaggerated and not related to the incident at issue herein. 50. Plaintiff's claims are barred by the applicable statute of limitations. 51. Plaintiff has failed to plead allegations of misrepresentation with the specificity required by the Pennsylvania Rules of Civil Procedure and Pennsylvania common law and are barred from recovering and/or proceeding under claims of misrepresentation, 52. To the extent that Plaintiff suffered any losses, which are disputed, such losses were not the proximate result of any action or omission on the part of Answering Defendant. 53. Plaintiffs employee(s) failed to follow the cautionary instruction of Answering Defendant Nittany Pilot Car& Safety Co. 54. Answering Defendant Nittany Pilot Car& Safety Co. had four individuals working as subcontracted independent contractors. One individual, Bob Dorsey, was working in the Hi-pole car on load/truck one. Larry Lutsie was working on the rear car load/truck one. Ben Beachy was working on the Hi-pole car on load/truck two. Buddy Balance was working on the rear car on load/truck two. The truck carrying the first load collided with the overpass at the 495 bridge on Massachusetts 1-95. The driver for JR Trucking of load one did not follow the cautionary instruction stated on the certified route survey as stated which directed the driver to watch the bridges under Route 110 and Route 495, and also cautioned the driver to stay on the far right shoulder. Driver one collided with the overpass. The driver for the second truck carrying load two did follow the cautionary instruction stated on the certified route survey as specified and did not strike the overpass. The second truck carrying load two suffered no damage. 55. Answering Defendant Nittany Pilot Car& Safety Co. has certified and driven the similar routes involving the transportation of loads from the New England area to South Carolina many times, but normally takes a different route. Defendant M&D Pilot certified the route for New Hampshire and Massachusetts and consulted with Defendant Bayside Engineering which recommended that a particular route be taken due to load weight issues which allegedly ruled out certain bridges. Defendant Bayside was responsible for a structural analysis and an overload truck route survey report submitted to the Massachusetts' Department of Transportation. Answering Defendant Nittany Pilot Car& Safety Co. relied on Defendant M&D Pilot and Defendant Bayside Engineering for a route certification in New Hampshire and Massachusetts. 56. The weight of the load at issue as described in Plaintiff s Complaint requires an experienced and knowledgeable rigging company with experience to handle super-loads. 57. An engineer for the Commonwealth of Massachusetts certified that the overpass for the bridge in question was safe for this particular route. CROSS CLAIM NITTANY PILOT CAR& SAFETY CO.v. M&D PILOT CAR 58. Defendant Nittany Pilot Car& Safety Co. hereby incorporates Paragraphs I through 57 as though the same were set forth in full herein. 59. For the reasons set forth in Plaintiff's Complaint averred against Defendant M&D Pilot Car, M&D Pilot Car is solely liable to Plaintiff and/or liable over to Answering Defendant. WHEREFORE, Answering Defendant respectfully requests that M&D Pilot Car be found solely liable to Plaintiff and/or liable over Answering Defendant for damages proved, if at all, plus costs of suit. CROSS CLAIM NITTANY PILOT CAR& SAFETY CO.v. BAYSIDE ENGINEERING 60. Defendant Nittany Pilot Car& Safety Co. hereby incorporates Paragraphs 1 through 59 as though the same were set forth in full herein. 61. For the reasons set forth in Plaintiff's Complaint averred against Defendant Bayside Engineering, Bayside Engineering is solely liable to Plaintiff and/or liable over to Answering Defendant. WHEREFORE, Answering Defendant respectfully requests that Bayside Engineering be found solely liable to Plaintiff and/or liable over Answering Defendant for damages proved, if at all, plus costs of suit. Respectfully submitted, CALDWELL & KEARNS Dated: April 8, 2013 By: `�—�- Thomas S. Lee, Esquire Attorney I.D. #89440 James L. Goldsmith, Esquire Attorney I.D. #27115 3631 North Front Street Harrisburg, PA 17110 (717)232-7661 (717) 232-2766 (fax) tlee @CKLegal.net joldsmith@CKLegal.net Attorneys for Defendant Nittany Pilot Car&Safety Co. VERIFICATION PURSUANT TO Pa.R.C.P. 1024(c) The undersigned,Thomas S. Lee,Esquire states that he is an attorney for the party in the within action and that he makes this affidavit as an attorney,because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit;and/or because the party for whom he makes this affidavit is outside the jurisdiction of the court,and/or verification of none of them can be obtained within the time allowed for the filing of the document;and that he has sufficient knowledge or information and belief,based upon his investigation of the matters averred or denied in the foregoing document;and that this statement is made subject to the penalties of 18 Pa.C.S.4904,relating to unsworn falsification of authorities. Thom S. Lee CERTIFICATE OF SERVICE AND NOW, this 8th day of April, 2013, I hereby certify that I have served a copy of the Answer with New Matter and Cross Claims to Plaintiff s Complaint on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Brian Breen Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Counsel for Plaintiff Bret Shaffer, Esq. Barick Scherer, LLC 19 West South Street Carlisle, PA 17013 Counsel for Defendant M&D Pilot Car Gregory J. Kelley, Esq. MARSHALL DENNEHEY WARNER COLEMAN& GOGGIN 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Counsel for Defendant Bayside Engineering CALDWELL & KEARNS By: vl—c� 12079-010/201338 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP BY: Brian Breen, Esquire Karen M. Gottlieb, Esquire Pennsylvania I.D. No. 81416, 203168 Attorneys for Plaintiffs The Curtis Center, Suite 1130 East Certain Underwriters at Lloyds' London Philadelphia, PA 19106 subscribing to Policy No. CK21102A 10 Tele: 215 627-6900 CERTAIN UNDERWRITERS AT LLOYDS' LONDON, COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY CO V. C"') NITTANY PILOT CAR& SAFETY CO., r~x :Z-T1 7:w C;) M&D PILOT CAR and BAYSIDE NO.: 13-578 = = C:) C:)C-,) ENGINEERING Defendants � PLAINTIFFS' ANSWER TO THE PRELIMINARY OBJECTIONS OF DEFENDANT, M&D PILOT CAR Plaintiffs, Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102AI0, as subrogees of JR Trucking and Rigging, Inc. (hereinafter "Plaintiffs") by and through their attorneys, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, hereby answer the preliminary objections of defendant, M&D Pilot Car(hereinafter"Defendant")to the Complaint as follows: 1. INSUFFICIENT SPECIFICITY IN A PLEADING. I It is admitted that the rule so provides. 2-32. Plaintiffs deny that any of the objections made by Defendant in these paragraphs constitute insufficient specificity such as that which would render Defendant unable to answer the allegations in question. Defendant is seeking information which is best, and properly, obtained through discovery and which is not required to be pled in the Complaint. 7943 12.1 WHEREFORE, Plaintiffs respectfully request that the preliminary objections of Defendant, M&D Pilot Car, be overruled. Alternatively, in the event the preliminary objections are granted, Plaintiffs respectfully request time to file an amended complaint. II. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT. 33. Plaintiffs hereby incorporate their responses to paragraphs 1-32, as set forth above, as if the same were set forth at length herein. 34. It is admitted that the rule so provides. 35. It is admitted that the rule so provides. 36-38. Plaintiffs deny that any of the objections made by Defendant in these paragraphs constitute a failure of Plaintiffs' Complaint to conform to law or rule or court, specifically, Plaintiffs deny that their Complaint is not in conformity with Pa.R.C.P. 1019(f). Defendant is seeking information which is best, and properly, obtained through discovery and which is not required to be pled in the Complaint. 39. It is admitted that the rule so provides. 40-41. Plaintiffs stipulate that a copy of the agreement referenced in the Complaint was not attached to said Complaint. A copy of the agreement referenced in Plaintiffs' Complaint is attached hereto. WHEREFORE, Plaintiffs respectfully request that the preliminary objections of Defendant, M&D Pilot Car, be overruled. Alternatively, in the event the preliminary objections are granted, Plaintiffs respectfully request time to file an amended complaint. III. LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 42. Plaintiffs hereby incorporate their responses to paragraphs 1-41, as set forth above, as if the same were set forth at length herein. 79131?.l 43. It is admitted that the rule so provides. 44-46. Plaintiffs deny that any of the objections made by Defendant in these paragraphs render Plaintiffs' Complaint legally insufficient. Defendant is seeking information which is best, and properly, obtained through discovery and which is not required to be pled in the Complaint. 47. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiffs respectfully request that the preliminary objections of Defendant, M&D Pilot Car, be overruled. Alternatively, in the event the preliminary objections are granted, Plaintiffs respectfully request time to file an amended complaint. IV. MISJOINDER OF A CAUSE OF ACTION. 48. Plaintiffs hereby incorporate their responses to paragraphs 1-47, as set forth above, as if the same were set forth at length herein. 49. Admitted. 50. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiffs respectfully request that the preliminary objections of Defendant, M&D Pilot Car, be overruled. Alternatively, in the event the preliminary objections are granted, Plaintiffs respectfully request time to file an amended complaint. Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP r ` Date: April 9, 2013 By: Karen M. Gottlieb, Esquire Attorney for Plaintiffs 794312.1 ATTN: PEARTT DEPT. TOTE: M INIT rV _IN40r V PILOT CAIN Jb SAM MY CO., 1140, Vito D.DeGmori a(Pm/Co-Mm-W) 14 Meedow Ridge Dr.,Sh ppensburg,PA 17257 Phone#:1-(866)4774812 **'*Fix#;1-(717)477-8813 Email A. dre : ftt#tcltlt}'$Ul{l 'altr�tl.CU/tt OFFICIAL CERTIFIED ROUTE SURVEY C.Q. Ste, .1' PERF!Q D=: I& TRUCKING & RIGGIN.CA INC, ROUTE SURY.EXMS}, Vito DAH,91 MU : 411 1 11 A " ll► FV OF MOVE: OPEN ��j]M Paver Mill Roll HEIGHT: 15 ft. 8 in, ll.: 13 ft. �3 in. LE 1116 ft, 1 in. "F.I�'11 ,: 130, lbs. NUMBER of AXLES: 4TARXID r01NT QE S RVEY: NW 1-95 ENDING 1NT OF BEY: I- ROUT U RY NN line 1-95 S-WSR-110 W twatch bri es Ruder -495 stay to far ri t to 1-495 S to Sktj 14 N (aft 42. tum Idt ontu Agao yer ' SR-28 S to 1495 S to S11•2 W exit 29 to - E to 1:495 exit 40-A to I-95 S exit 13-B to 1-225 S (lilt to th 181 lin . *ROUTE SURVE)ID AT: ft._j_in. 08SUFtVA'l`IO S MADF* There is safe and sufficient clearance to all overheat) structures.Wirt skids re uirtd, A111 S ITD BY. Old' &t (PresWMtl DA 02103111 This survey is valid for a time period of 30 days from submission date of survey o. mrTANY Pilot Car&Safety Co.,Inc.will he held harmless for any incidents which occur do to DrtvEts not f0l1owlt1V ESMYts'instructions during the movement of loads.This survey is not valid for any other escort company's or tracking company's use without the express written permission of N17T4A Y Pilot Car&Safety Co.,Inc. F fS,T O,F —faj lY '`i! 1 1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within Response to Preliminary Objections was served upon counsel listed below via First Class Mail on April 9, 2013 Bret P. Shaffer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Gregory J. Kelley, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Nittany Pilot Car& Safety Co. 14 Meadow Ridge Drive Shippensburg, PA 17257 ' 1 Ka en M. Gottlieb, squire 794312.1 o � atUTfO dOTA.r Thomas S. Lee, Esquire Attorney I.D. #89440 James L. Goldsmith, Esquire M3 APR 10 AM 10: 48 Attorney I.D. #27115 'J'�BERLAND COUNTY Caldwell & Kearns 3631 North Front Street PENNSYLVANIA Harrisburg, PA 17110 (717)232-7661 (717) 232-2766 (fax) Attorneys for Defendant Nittany Pilot Car&Safety Co. CERTAIN UNDERWRITERS AT IN THE COURT OF COMMON PLEAS LLOYD'S LONDON SUBSCRIBING CUMBERLAND COUNTY, PENNSYLVANIA TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND NO.: 13-578 RIGGING, INC., Plaintiff CIVIL ACTION—LAW vs. JURY TRIAL DEMANDED NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification to Defendant Nittany Pilot Car & Safety Co. to Defendant's Answer with New Matter and Cross Claims filed on Monday, April 8, 2013, in the above-captioned matter. Respectfully submitted, CALDWELL& KEARNS Dated: April�, 2013 By: � - omas S. Lee,Esquire Attorney I.D. #89440 James L. Goldsmith, Esquire Attorney I.D. #27115 3631 North Front Street Harrisburg, PA 17110 (717)232-7661 (717)232-2766 (fax) tlee @CKLegal.net jgoldsmith@CKLegal.net Attorneys for Defendant Nittany Pilot Car&Safety Co. APR-05-2013 FRI 03:46 PM FAX NO. P, 14/28 VERIFICATION I, Vito DeGregorio, on behalf of Nittwiy Pilot Car& Safety Co, verifies that the averments; in this Answer with New Matter and Cross Claims to Plaintiffs' Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Date Vito DeGregorio, Prfsident/Co Director on behalf of Nittany Pilot Car& Safety Co. CERTIFICATE OF SERVICE AND NOW,this day of April, 2013, 1 hereby certify that I have served a copy 4- of the Praecipe on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Brian Breen Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Counsel for Plaintiff Bret Shaffer, Esq. Barick Scherer, LLC 19 West South Street Carlisle, PA 17013 Counsel for Defendant M&D Pilot Car Gregory J. Kelley, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Counsel far Defendant Bayside Engineering CALDWELL & KEARNS By: 12079-0101201670 CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING, INC., c Plaintiff -OZ w -, rn Co z. NITTANY PILOT CAR& SAFETY CO., c T M&D PILOT CAR and BAYSIDE _��`_; =T ENGINEERING, ^' Defendants PRAECIPE TO ATTACH SUBSTITUTE VERIFICATIONS Please attach the following Substitute Verifications to the Preliminary Objections Of M&D Pilot Car To The Complaint of Plaintiff filed in this matter. Respectfully submitted, BARIC SCHERER LLC Bret P. Shaffer, Esquire Date: April 11, 2013 I.D. # 309180 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION I,Mark E. Camp, as one of two sub-contractors doing business as M&D Pilot Car,verify that the statements made in the foregoing Preliminary Objections of M&D Pilot Car to the Complaint of Plaintiff are true and correct to the best of my knowledge, information,and belief. I hereby ratify the verification previously supplied by my attorney,Bret P. Shaffer, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsifications to authorities. Date: 3/`�-1 /3 /A ark E. Ca20 r VERICATION I,Dorothy Born,as one of two sub-contractors doing business as M&D Pilot Car,verify that the statements male in the foregoing Preliminary Objections of M+&D Pilot Car to the Complaint of Plaintiff are true and correct to the best of my knowledge, information,and belief. I hereby ratify the verification previously supplied by my attorney,Bret P. Shaffer, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4944 relating to unswom falsifications to authorities. Date: L Dorothy Bofn CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A 10, as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING, INC., Plaintiff V. NITTANY PILOT CAR& SAFETY CO., N) C:) ' M&D PILOT CAR and BAYSIDE A� C- ENGINEERING, c Defendants >C: r ANSWER TO NEW MATTER AND CROSS CLAIM - OF NITTANY PILOT CAR AND NOW, comes Defendant M&D Pilot Car, by and through its attorneys, Baric Scherer LLC, and files the within Answer and, in support thereof, sets forth the following: 1-39. Paragraphs 1 through 39 are Defendant Nittany Pilot Car& Safety Co.'s ("Nittany's") Answer to the Complaint of Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10, as subrogees of JR Trucking and Rigging, Inc. Defendant M&D Pilot Car("M&D") has filed preliminary objections to said Complaint, and said preliminary objections are incorporated by reference herein. It is therefore averred that no response is required for paragraphs 1 through 39. NEW MATTER 40. No response required. 41. This paragraph is a conclusion of law for which no response is required. 42. Admitted in part and denied in part. It is admitted that the events underlying Plaintiff's claim may have been in whole or in part caused as a direct result of negligence of persons other than Defendant Nittany. To the extent that it is implied that Defendant M&D is one such person, it is specifically denied and strict proof is demanded thereof. 43. This paragraph is a conclusion of law for which no response is required. To the extent a response is required, it is specifically denied. 44. This paragraph is a conclusion of law for which no response is required. 45. This paragraph is a conclusion of law for which no response is required. 46. This paragraph is a conclusion of law for which no response is required. 47. This paragraph is a conclusion of law for which no response is required. 48. This paragraph is a conclusion of law for which no response is required. 49, Admitted. 50. This paragraph is a conclusion of law for which no response is required. 51. This paragraph is a conclusion of law for which no response is required. 52. This paragraph is a conclusion of law for which no response is required. 53. Admitted upon information and belief. 54. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of the number of individuals involved in the incident, their respective names, or their particular roles. Upon information and belief, the remainder of this paragraph is admitted. 55. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Nittany has certified and driven similar routes involving the transportation of loads from the New England area to South Carolina many times, but normally takes a different route. Denied that M&D Pilot certified the route for New Hampshire and Massachusetts. By way of further answer,the route surveys provided by M&D were expired on the date in question. Denied that M&D consulted with Bayside Engineering. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Bayside Engineering recommended a particular route be taken due to load eight issues ruling out certain bridges. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Bayside was responsible for a structural analysis and an overload truck route survey report submitted to the Massachusetts' Department of Transportation. That Nittany relied on M&D and Bayside for a route certification is a question of law for which no response is required, but to the extent a response is required, such averment is denied as to M&D, and M&D, upon reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of whether Nittany relied on Bayside for a route certification. 56. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether the weight of the load at issue was as described in Plaintiff's Complaint, and the same is therefore denied. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether an experienced and knowledgeable rigging company with experience to handle super-loads was required for the load at issue, and the same is therefore denied. By way of further explanation, what constitutes a"super-load"may vary state to state and have an associated legal meaning; M&D was not present at the scene of the accident and has no knowledge as to whether the load on the day in question constituted a"super-load." 57. Upon reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of this'averment. CROSS CLAIM NITTANY PILOT CAR& SAFETY CO.v. M&D PILOT CAR 58. No response is required. 59. Denied. WHEREFORE, Defendant M&D respectfully requests that the cross claim of Nittany Pilot Car& Safety Co. be dismissed with prejudice. CROSS CLAIM NITTANY PILOT CAR& SAFETY CO. v. BAYSIDE ENGINEERING 60-61. No response is required. Respectfully submitted, BARIC SCHERER LLC Date: 0( 13 _ Bret P. Shaffer, Es i e I.D.# 309180 19 West South Street Carlisle, PA 17013 (717)249-6873 Attorney for Defendant M&D Pilot Car VERIFICATION I verify that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information, and belief. This verification is signed by Bret P. Shaffer, Esquire, attorney for Defendant M&D Pilot Car and is based upon the statements provided by Defendant, as well as documents reviewed by the undersigned as attorney for Defendant. This verification will be substituted and ratified by a verification signed by Defendant, who is presently unavailable to sign said verification. I understand that false statements herein are made subject to penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authorities. el"IVl� //3- ret P. haffer, Esquire Dated: CERTIFICATE OF SERVICE I hereby certify that on April 29, 2013, 1, Bret P. Shaffer, Esquire of Baric Scherer LLC, did serve a copy of the foregoing Answer, by first class U.S. mail,postage prepaid, to the parties listed below, as follows: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman & Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Gregory J. Kelley, Esquire Marshall Dennehey Warner Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Attorney for Defendant Bayside Engineering Thomas S. Lee, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant Nittany Pilot Car& Safety Co. Shaffer, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ------------—------------------------------------------------------------------------------------------------ CAPTION OF CASE (entire caption must be stated in full) CERTAIN UNDERWRITERS AT LLOYD' S LONDON SUBSCRIBING TCb- PQj1,,IC�Y, NUMBER CK21102A10, AS SUBROGEES OF JR TRUCKING AND RIGGING, INC. , vs. Plaintiff MW .r M NITTANY PILOT CAR & SAFETY CO. , M & D PILOT CAR, Z:::V r & BAYSIDE ENGINEERING, Defendants No. 2013-578 CiYV3� -errw xc� 1. State matter to be argued(i.e., plaintiffs motion for new trial, defendant's demlitri-F to complaint, etc.): Preliminary Objections Of M & D Pilot Car To Comp1,ainVOf Plaintiff < 2. Identify all counsel who will argue cases: (a) for plaintiffs: Brian Breen, Esq. , The Curtis Center, Suite 1130 East Philadelphia, PA 19106-—(Name and Address) (b) for defendants: Thomas S . Lee, Esq. , 3631 North Front St. , Harrisburg, PA 17110 (Name and Address) Bret P. Shaffer, Esq. , 19 West South St. , Carlisle, PA 17013 Gregory J. Kelley, Esq. , 620 Freedom Business Center, Suite 300 3. 1 will notify all parties in writing within two days that this case has been listed for King of argument, Prussia, PA 19406 4. Argument Court Date: June 21 , 2013 Sigrfature Bret P. Shaffer, Esq. Print your name Defendant, M & D Pilot Car Attorney for Date:- May 16, , 2013 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. */c?. 7- ti IFIL O.-OFF ICE MARSHALL DENNEHEY WARNER 2013 MAY 24 AM 11: ( 6 COLEMAN& GOGGIN BY: Gregory J. Kelley, Esquire CUMBERLAND COUNTY PA ID No. 67968 PENNSYLVANIA 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 T: 610-354-8273 /F: 610-354-8299 gjkelley @mdwcg.com Atty. for Deft. Bayside Engineering, Inc. CERTAIN UNDERWRITERS AT LLOYD'S COURT OF COMMON PLEAS LONDON SUBSCRIBING TO POLICY OF CUMBERLAND COUNTY, PA NUMBER CK21 102al0, as subrogees of JR TRUCKING AND RIGGING, INC., CIVIL ACTION - LAW Plaintiff, V. NO. 2013 —CV -00578 NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, INC., Defendants. TO: THE PROTHONOTARY PRAECIPE TO DISMISS ALL CLAIMS AGAINST DEFENDANT BAYSIDE ENGINEERING.INC. WITHOUT PREJUDICE AND NOW, on this 29TH day of April, 2013, it is stipulated by and between the parties that all claims asserted by any and all parties against Defendant Bayside Engineering, Inc. are dismissed without prejudice and without attorneys' fees and costs to any party. Wilson Elser, et al. Marshall,Dennehey,Warner,Coleman & Goggin 19� BY: / BY: BRIAN BREEN, ESQ. GO J ELLEY, SQ. Attorneys for Plaintiffs AD t. Bayside gineering, Inc. 1 w\ aLL Y- a r of Caldwell & Kearns Baric Scherer, LLC BY: � BY: THONTAS LEE, ESQ. BRETT SHAFFER, ESQ. Attorneys for Defendant Nittany Attorney for Defendant M&D Pilot Car Pilot Car& Safety Co. 2 r , ..o Caldwell& Kearns Baric Scherer,LLC BY: BY: THOMAS LEE, ESQ. BRETT SHAF ER, ESQ. Attorneys for Defendant Nittany Attorney for Defendant M&D Pilot Car Pilot Car& Safety Co. 2 MARSHALL DENNEHEY WARNER COLEMAN& GOGGIN BY: Gregory J. Kelley, Esquire PA ID No. 67968 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 T: 610-354-8273 /F: 610-354-8299 gjkelley @mdwcg.com Attorney for Defendant Bayside Engineering CERTAIN UNDERWRITERS AT LLOYD'S COURT OF COMMON PLEAS LONDON SUBSCRIBING TO POLICY OF CUMBERLAND COUNTY, PA NUMBER CK21102a10, as subrogees of JR TRUCKING AND RIGGING, INC., CIVIL ACTION -LAW Plaintiff, V. NO. 2013 —CV - 00578 NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, INC., Defendants. CERTIFICATE OF SERVICE I certify that I served a copy of the Praecipe to Dismiss all claims against Defendant, Bayside Engineering, Inc. only via U.S. First Class mail, postage prepaid, as set forth below: Brian Breen, Esquire Thomas S. Lee, Esquire Wilson Elser, et al. Caldwell & Kearns Independence Square West 3631 North Front Street The Curtis Center, Suite 1130 East Harrisburg, PA 17110 Philadelphia, PA 19106 Attys. for Deft. Nittany Pilot Car& Safety Co. Attorneys for Plaintiff Bret P. Shaffer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Attorney for Defendant M&D Pilot Car By: G GO Y- . ELLE , ESQUIRE Dated: I�1! 3 #16. CERTAIN UNDERWRITERS : IN THE COURT OF COMMON PLEAS OF AT LLOYDS' LONDON : CUMBERLAND COUNTY, : PENNSYLVANIA V. NITTANY PILOT CAR& : NO. 2013 —0578 CIVIL TERM SAFETY CO. • V. • M &D PILOT CAR IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE GUIDO,EBERT,PECK, JJ. ORDER OF COURT AND NOW, this 3RD day of JULY, 2013, after reviewing the briefs filed by the parties and having heard argument thereon the preliminary objections of Defendant M&D Pilot Car are OVERRULED. By the Court, Edward E. Guido, J. V Brian Breen, Esquire V Thomas S. Lee, Esquire Bret P. Shaffer, Esquire -0.a rn , x '/ Court Administrator zt r" r-,;Y, tor' I ' ut :, :sld evp ie3 1� f<t✓ 7is/ r- -;c'' L!L D • «, • WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP BY: Brian Breen, Esquire Karen M. Gottlieb, Esquire Pennsylvania I.D. No. 81416, 203168 Attorneys for Plaintiffs The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Tele: 215 627-6900 CERTAIN UNDERWRITERS AT LLOYDS' LONDON, COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNT w �. Q; NITTANY PILOT CAR& SAFETY CO., -C?� ;:: M&D PILOT CAR and BAYSIDE NO.: 13-578 �- ENGINEERING C-) Defendants J>2 -� -� Cn r' - C::) STIPULATION OF DISMISSAL It is hereby stipulated and agreed among the undersigned counsel that Count II, paragraphs 26-32 of the Complaint are hereby dismissed as to Defendant, M&D Pilot Car. Defendant, M&D Pilot Car, shall file an Answer to the remaining allegations of the Complaint. WILSON, ELSER, MOSKOWITZ, BARIC SCHERER LLC EDELMAN & DICKER LLP BY: BY: Brian Breen, Esquire Bret affe , fsquire Karen M. Gottlieb, Esquire Attorney for Defendant, Attorneys for Plaintiff M&D Pilot Car Date: Date: IZ CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS OF AT LLOYD'S LONDON SUBSCRIBING CUMBERLAND COUNTY, PENNSYLVANIA,_, TO POLICY NUMBER CK21102A10, — ~e as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING INC., -u Plaintiff ry V. M C. NITTANY PILOT CAR& SAFETY CO., na M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, 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 S. Bedford Street Carlisle, Pennsylvania 717-249-3166 BARIC SCHERER LLC Bret P. Shaffer, Esquire I.D.# 309180 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Defendant M&D Pilot Car 4 � CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS OF AT LLOYD'S LONDON SUBSCRIBING CUMBERLAND COUNTY, PENNSYLVANIA TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND No. 201.3-578 Civil Term RIGGING, INC., Plaintiff vi. NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants ANSWER OF M&D PILOT CAR, WITH NEW MATTER AND CROSS-CLAIM AND NOW, comes Defendant M&D Pilot Car("M&D"), by and through its attorneys, Baric Scherer LLC, and files this Answer with New Matter and Cross-Claim, setting forth the following in support thereof. PARTIES 1. After reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Plaintiff sues herein as subrogated insurer of the Cargo in suit, having paid the insurance claim of its alleged Insured, JR Trucking and Rigging, Inc. The remainder of this paragraph is admitted. 2. After reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether JR Trucking and Rigging, Inc. is the Plaintiff's insured. The remainder of this paragraph is admitted. 3. Admitted. 4. Admitted.in part and denied in apart. Denied that M&D is a corporation existing under the laws of the State of New Hampshire. By way of clarification, the individuals Mark E. Camp and Dorothy Born do business as M&D, which is not incorporated. It is admitted that their principal place of business is located in Lempster,New Hampshire. 5. Admitted. 6. This is a legal conclusion for which no response is required. To the extent a response is required, it is specifically denied. 7. This is a legal conclusion for which no response is required. To the extent a response is required, it is specifically denied. JURISDICTION AND VENUE 8. Admitted in part and denied in part. Admitted that this Court has jurisdiction over the subject matter of this action and venue is proper. Denied that M&D's principal place of business was located in Cumberland County, Pennsylvania. M&D's principal place of business is in Lempster,New Hampshire. 9. Admitted in part and denied in part. Admitted that M&D occasionally provides escorts for carriers of cargo in Pennsylvania. Denied that M&D conducts route surveys in Pennsylvania. Denied that M&D conducts business within the State of Pennsylvania as an engineer. Denied that M&D decided the route and provided the escort for the pick up, carriage and delivery of the subject Cargo from Biddeford, Maine to Anderson, South Carolina, and the provision of services related thereto. By way of clarification, M&D was contacted by West Coast Services to do route surveys for New Hampshire, Massachusetts, Rhode Island and Connecticut. M&D did not escort the subject Cargo. M&D did not decide the route but merely surveyed the route for clearances. It is stipulated that M&D is subject to the in personam jurisdiction of this court and therefore M&D admits that jurisdiction is appropriate. FACTS 10. After reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of this averment. 11. After reasonable investigation, M&D is without knowledge or information sufficient to forma belief as to the truth of this averment. 12. After reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Nittany Pilot Car& Safety Co., Inc., consulted with Bayside Engineering. Denied that Nittany Pilot Car& Safety Co., Inc. consulted with M&D for assistance with certification of the Route provided to the Plaintiff s alleged insured for the transport of the subject Cargo. 13. It is denied that M&D negligently instructed the Plaintiff's alleged Insured. It is denied that M&D certified that the route prescribed had 16'0" clearance. It is denied that M&D ultimately caused the Cargo to collide with an overpass. It is admitted that the vehicle transporting the cargo was traveling at a high speed. As to whether damage was caused to the. cargo at all, after reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of this averment. CAUSES OF ACTION COUNT I -NEGLIGENCE 14. M&D incorporates by reference each and every answer provided in Paragraphs 1 through 13 as if set forth fully at length herein. 15. This is a conclusion of law for which no response is required. To the extent it is deemed that a response is required, it is denied that M&D was under a duty to protect the Plaintiff's alleged Insured from injury. 16. These are conclusions of law for which no responses are required. To the extent it is deemed that a response is required, M&D responds as follows: M&D denies the existence of a duty. M&D denies breaching a duty. M&D denies failing to exercise ordinary care. M&D denies causing damages. It is denied that the damages total $88,000.00 exclusive of costs, attorneys' fees and interest. 17. This is a conclusion of law for which no response is required. To the extent it is deemed that a response is required, M&D denies that damage to the Cargo proximately resulted from M&D's alleged breach of its alleged duties to exercise ordinary and reasonable care. 18. Denied. 19. This is a legal conclusion for which no response is required. If it is deemed that a response is required, this averment is denied. 20. This is a legal conclusion for which no response is required. If it is deemed that a response is required, M&D denies that it was an escort. By way of further answer, M&D was not the escort and therefore could not have failed to properly perform any duties as such. 21. This is a legal conclusion for which no response is required. If it is deemed that a response is required, M&D answers as follows: M&D denies owing a duty of care to Plaintiff. M&D denies breaching or deviating from its alleged duty of care. M&D denies that it was a party to any contract"between the Motor Carrier and the Escort." M&D denies that it caused this Incident and the resulting loss. 22. This is a conclusion of law for which no response is required. If it is deemed that a response is required, M&D denies breaching any fiduciary duties allegedly owed to Plaintiff's alleged Insured. 23. This is a conclusion of law for which no response is required. If it is deemed that a response is required, M&D denies any negligence causing the alleged loss of cargo. By way of further answer, M&D did not escort the cargo in question. M&D denies having any duty. M&D denies breaching any alleged duty. 24. This is a conclusion of law for which no response is required. If it is deemed that a response is required, M&D responds with the following: M&D denies the alleged amount of damages. M&D denies that it is jointly and severally liable with any other defendant. COUNT II—BREACH OF CONTRACT 25. M&D incorporates by reference each and every answer provided in Paragraphs 1 through 24 as if set forth fully at length herein. 26-32. A Stipulation of Dismissal between Plaintiff and M&D as to paragraphs 26-32 was filed on July 17, 2013; therefore, no response by M&D is required as to these averments. COUNT III—NEGLIGENT MISREPRESENTATION 33. M&D incorporates by reference each and every answer provided in Paragraphs 1 through 32 as if set forth fully at length herein. 34. Admitted that M&D is an escort business. By way of clarification, M&D is an escort business but did not act as an escort in regard to this matter. Denied that M&D is an engineering business. Denied that M&D owed Plaintiff's alleged Insured any duties of care. Denied that,M&D escorted the Motor Carrier and its Cargo. 35. This is a legal conclusion for which no response is required. To the extent that it is deemed that a response is required, M&D denies that it knew or reasonably should have known that the route was unsafe for the Motor Carrier to travel. It is further denied that M&D directly instructed Plaintiff's alleged Insured. By way of further response, M&D advised West Coast Services that the route at issue was only safe for the height of 15'08", due to overhead bridges, and only on the condition that the transports stay to the far right shoulder of the route. 36. Denied that M&D instructed Plaintiff s alleged Insured to travel on this route. Rather, M&D was asked to survey the route and provide results to West Coast Services. Denied that M&D had actual or constructive knowledge that Plaintiff s alleged Insured would rely on M&D. It is denied that M&D gave an unqualified instruction that the exit was proper. It is admitted that M&D surveyed the route at issue and advised West Coast Services that the route at issue was only safe for the height of 15'08", due to overhead bridges, and only on the condition that the transports stay to the far right shoulder of the road. 37. This is a legal conclusion for which no response is required. If it is deemed that a response is required, M&D denies that Plaintiff s alleged Insured relied on M&D's instruction and certification. It is further denied that M&D instructed or certified that the entire Route was over 16'0". 38. Denied that Plaintiff s alleged Insured relied on any representation of M&D. Denied that M&D made a negligent misrepresentation. After reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Plaintiff s alleged Insured suffered a collision with the overpass and severe damage to the Cargo resulted. Denied that M&D was aware of the potential for the Motor Carrier and its Cargo to collide with low overpasses. Admitted that M&D does route surveys in general for the purpose of stating clearances for such things as low overpasses. By way of clarification, M&D provided its route surveys to West Coast Services, not the Motor Carrier at issue, and such surveys explained that the route at issue was only safe for the height of 15'08", due to overhead bridges, and only on the condition that the transports stay to the far right shoulder of the route. 39. Denied that Plaintiff is entitled to $88,000 in damages. After reasonable investigation, M&D is without knowledge or information sufficient to form a belief as to the truth of whether Plaintiff paid for damages caused by the alleged collision of the Cargo and the overpass. WHEREFORE, M&D Pilot Car respectfully requests that this honorable Court deny Plaintiff's request for relief, dismiss Plaintiff's Complaint and provide such other relief as this Court should deem fair and just. NEW MATTER 40. M&D hereby incorporates Paragraphs 1 through 39 as though the same were set forth in full herein. 41. At the request of West Coast Services, M&D provided route surveys for the route at issue through the states of New Hampshire, Massachusetts, Rhode Island and Connecticut. 42. M&D's route surveys explained that the route at issue was only safe for the height of 15'08", due to overhead bridges, and only on the condition that the transports stay to the far right shoulder of the route. 43. Upon information and belief, any certification to Plaintiff or its alleged insured that the route at issue had clearance of 16' or greater would have come from Nittany Pilot Car and Safety Co. 44. Upon information and belief, two units were being transported by two separate carriers of Plaintiff's alleged insured on the date at issue. 45. Plaintiff alleges only one of the two carriers collided with an overpass. CROSS-CLAIM M&D PILOT CAR v. NITTANY PILOT CAR& SAFETY CO. .._.._..... 46. M&D hereby incorporates Paragraphs 1 through 45 as though the same were set forth in full herein. 47. For the reasons set forth in Plaintiff's Complaint,Nittany Pilot Car& Safety Co. is solely liable to Plaintiff and/or liable over to M&D. WHEREFORE, M&D Pilot Car respectfully requests that Nittany Pilot Car& Safety Co. be found solely liable to Plaintiff and/or liable over to M&D Pilot Car for damages proved, if at all,plus costs of suit. Respectfully submitted, BARIC SCHERER LLC Date:, 7/.2 2 3 Bret P. haffer, Esquire I.D.# 309180 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Defendant M&D Pilot Car CERTIFICATE OF SERVICE I hereby certify that on Julyg!� , 2013, I, Bret P. Shaffer, Esquire of Baric Scherer LLC, did serve a copy of the Answer of M&D Pilot Car,with New Matter and Cross-Claim, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman &Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Thomas S. Lee, Esquire Caldwell &Kearns 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant Nittany Pilot Car& Safety Co. Bret P. Shaffer, Esquire VERIFICATION I verify that the statements made in the foregoing Answer of M&D Pilot Car, with New Matter and Cross-Claim are true and correct to the best of my knowledge, information, and belief. This verification is signed by Bret P. Shaffer, Esquire, attorney for Defendant M&D Pilot Car and is based upon the statements provided by Defendant, as well as documents reviewed by the undersigned as attorney for Defendant. This verification will be substituted and ratified by a verification signed by Defendant,.who is presently unavailable to sign said verification. I understand that false statements herein are made subject to penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authorities. Bret P. Shaffer, Esquire Dated: CERTAIN UNDERWRITERS • IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING : OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A10, : as subrogees of JR TRUCKING AND : No. 2013-578 Civil Term RIGGING, INC., • Plaintiff • • D • rry r �ro r rl ,.r - V. • r-• • Cn NITTANY PILOT CAR& SAFETY CO., : M&D PILOT CAR and BAYSIDE r" ENGINEERING, • Defendants • PRAECIPE TO ATTACH SUBSTITUTE VERIFICATIONS Please attach the following Substitute Verifications of Mark E. Camp and Dorothy Born to the Answer of M&D Pilot Car, with New Matter and Cross-Claim filed in this matter. Respectfully submitted, BARIC SCHERER LLC Bret P. Shaffer, Esquire Date: July 29, 2013 I.D. # 309180 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION I, Mark E. Camp, as one of two sub-contractors doing business as M&D Pilot Car,verify that the statements made in the foregoing Answer of M&D Pilot Car,with New Matter and Cross-Claim are true and correct to the best of my knowledge, information, and belief. I hereby ratify the verification previously supplied by my attorney,Bret P. Shaffer, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. Date: 3 Mar di. Camp VERIFICATION I, Dorothy Born,as one of two sub-contractors doing business as M&D Pilot Car, verify that the statements made in the foregoing Answer of M&D Pilot Car,with New Matter and Cross-Claim are true and correct to the best of my knowledge, information, and belief. I hereby ratify the verification previously supplied by my attorney,Bret P. Shaffer, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. Date: 1/020/04/ 3 / Doroth Born CERTTIFICATE OF SERVICE I hereby certify that on July 2 l , 2013, I, Bret P. Shaffer, Esquire of Baric Scherer LLC, did serve a copy of the foregoing Praecipe, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman& Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Thomas S. Lee, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant Nittany Pilot Car& Safety Co. Bret P. Shaffer, Esq. Thomas S. Lee, Esquire 9 hE PiriTf ONO-1-;f,'a. Attorney I.D. #89440 , � � , �,� , {) Caldwell &Kearns 3631 North Front Street 1JkBpLQ 1,0U '� Harrisburg, PA 17110 PENNSYLVANIA(717)232-7661 (717)232-2766 (fax) Attorney for Defendant Nittany Pilot Car&Safety Co. CERTAIN UNDERWRITERS AT IN THE COURT OF COMMON PLEAS LLOYD'S LONDON SUBSCRIBING CUMBERLAND COUNTY, PENNSYLVANIA TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND NO.: 13-578 RIGGING, INC., Plaintiff CIVIL ACTION—LAW vs. JURY TRIAL DEMANDED NITTANY PILOT CAR & SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants DEFENDANT NITTANY PILOT CAR & SAFETY CO.'S REPLY TO DEFENDANT M&D PILOT CAR'S CROSS-CLAIM AND NOW comes Defendant, Nittany Pilot Car & Safety Co. (hereinafter "Answering Defendant"), by and its attorney, Thomas S. Lee, Esquire, CALDWELL & KEARNS, P.C., and files the following Reply to Cross-Claim of Defendant M&D Pilot Car and avers in support thereof as follows: 46. No response required. 47. Denied. The averments of Paragraph 47 are conclusions of law and no answer is required. By way of further answer, Answering Defendant incorporates the allegations set forth in its Answer with New Matter to Plaintiff's Complaint. WHEREFORE, Defendant Nittany Pilot Car& Safety Co. demands judgment in its favor and against Plaintiff, or in the alternative, demand judgment that Co-Defendant M&D Pilot Car be deemed solely liable,jointly liable and/or liable over to Defendant Nittany Pilot Car & Safety Co. by way of contribution, indemnification and/or contractual indemnification. Respectfully submitted, CALDWELL & KEARNS Dated: July 26, 2013 By: Thomas S.'fee-, V-s4direl Attorney I.D. #89440 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) tlee @CKLegal.net Attorney for Defendant Nittany Pilot Car&Safety Co. CERTIFICATE OF SERVICE AND NOW, this 26th day of July, 2013, I hereby certify that I have served a copy of the Reply to Cross-Claim of Defendant M&D Pilot Car on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Brian Breen Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Counsel for Plaintiff Bret Shaffer, Esq. Barick Scherer, LLC 19 West South Street Carlisle, PA 17013 Counsel for Defendant M&D Pilot Car Gregory J. Kelley, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Counsel for Defendant Bayside Engineering CALDWELL & KEARNS By: 12079-010/205135 r WILSON, ELSER,MOSKOWITZ, EDELMAN & DICKER LLP BY: Brian Breen, Esquire Karen M. Gottlieb, Esquire Pennsylvania I.D. No. 81416, 203168 Attorneys for Plaintiffs The Curtis Center, Suite 1130 East Certain Underwriters at Lloyds' London Philadelphia, PA 19106 subscribing to Policy No. CK21102A10 Tele: 215 627-6900 CERTAIN UNDERWRITERS AT LLOYDS' LONDON, COURT OF COMMON PLEAS:: u Plaintiff CUMBERLAND COUNTY NITTANY PILOT CAR& SAFETY CO., <� Ts C3 .: M&D PILOT CAR and BAYSIDE NO.: 13-578 _ ENGINEE RING Q Defendants PLAINTIFFS' REPLY TO THE NEW MATTER DEFENDANT, NITTANY PILOT CAR& SAFETY CO. Plaintiffs, Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A 10, as subrogees of JR Trucking and Rigging, Inc. (hereinafter"Plaintiffs") by and through their attorneys, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, hereby reply to the New Matter of defendant, Nittany Pilot Car & Safety Co. (hereinafter "Defendant") as follows: 40. Plaintiffs hereby incorporate each allegation made in their Complaint as if the same were set forth at length herein. 41-48. Denied. The allegations contained in these paragraphs are conclusions of law to which no response is required. To the extent that a response is deemed required, the same are denied and strict proof thereof is demanded at the time of trial. . 49. Denied and strict proof thereof is demanded at the time of trial. 816234.1 r ' - 50-53. Denied. The allegations contained in these paragraphs are con law to which no response is required. To the extent that a conclusions of response is deemed required, the same are denied and strict proof thereof is demanded at the time of trial. 54:57. Denied. All factual allegations stated by Defendant are hereby strict proof thereof is demanded at the time of trial. y erred and Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN& DICKER LLP Date: July 29, 2013 ` By: Karen M. Gottlieb, Esquire Attorney for Plaintiffs 816234.1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within Reply to New Matter was served upon counsel listed below via First Class Mail on July 29, 2013 Bret P. Shaffer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Thomas S. Lee, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Karen M. Gottlieb, Esquire 816234.1 WILSON,ELSER,MOSKOWITZ,EDELMAN& DICKER LLP BY: Brian Breen, Esquire Karen M. Gottlieb, Esquire Pennsylvania I.D. No. 81416, 203168 Attorneys for Plaintiffs The Curtis Center, Suite 1130 East Certain Underwriters at Lloyds' London Philadelphia, PA 19106 subscribing to Policy No. CK21102A10 Tele: 215 627-6900 CERTAIN UNDERWRITERS AT LLOYDS' CD LONDON, COURT OF COMMON PLEAS n Plaintiff CUMBERLAND COUNTY :r w -•-__ C'-) -} V. rrs cam , NITTANY PILOT CAR& SAFETY CO., r `� NO.: 13-578 M&D PILOT CAR and BAYSIDE [L rY'I ENGINEERING 'C Defendants ' PLAINTIFFS' REPLY TO THE NEW MATTER DEFENDANT, M&D PILOT CAR Plaintiffs, Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10, as subrogees of JR Trucking and Rigging, Inc. (hereinafter "Plaintiffs") by and through their attorneys, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, hereby reply to the New Matter of defendant, M&D Pilot Car (hereinafter"Defendant") as follows: 40. Plaintiffs hereby incorporate each allegation made in their Complaint as if the same were set forth at length herein. 41-45. Denied. All factual allegations stated by Defendant are hereby denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendants on all claims set forth in their Compliant, plus interest, costs, fees and any other relief which this Honorable Court deems reasonable and just. Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDE MAN & DICKER LLP Date: July 29, 2013 By: Karen M. Gottlieb,Esquire Attorney for Plaintiffs 816231.1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within Reply to New Matter was served upon counsel listed below via First Class Mail on July 29, 2013 Bret P. Shaffer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Thomas S. Lee, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Karen M. Gottlieb, Esquire 816231.1 r E 1-'107110 V0 lAf Thomas S. Lee, Esquire ,, Attorney I.D. No. 89440 2013 OtC 12 Ali IC. S 9 Caldwell &Kearns 3631 North Front Street C(1P9 E LAND COUNTY Harrisburg, PA 17110 PENNSYLVANIA (717)232-7661 /(717)232-2766 (fax) Attorney for Defendant Nittany Pilot Car &Safety Co. CERTAIN UNDERWRITERS AT : IN THE COURT OF COMMON PLEAS LLOYD'S LONDON SUBSCRIBING : CUMBERLAND COUNTY, TO POLICY NUMBER CK21102A10, : PENNSYLVANIA as subrogees of JR TRUCKING AND RIGGING, INC., : NO.: 13-578 Plaintiff • vs. : CIVIL ACTION—LAW NITTANY PILOT CAR& SAFETY JURY TRIAL DEMANDED CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of the subpoenas for documents and things pursuant to Rule 4009.22, Defendant Nittany Pilot Car& Safety Co. certifies that: 1. A Notice of Intent to Serve Subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; 2. A copy of the Notice of Intent to Serve Subpoenas, including the proposed subpoenas, is attached hereto as Exhibit "A"to this certificate; 3. No objection to the subpoenas has been received; and 4. The subpoenas which will be served are identical to the subpoena which is attached to the Notice of Intent to Serve Subpoenas. Respectfully submitted, CALDWELL & KEARNS Dated: December 10, 2013 By: Thomas S. Lee, Esquire Attorney I.D. #89440 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 / (717) 232-2766 tlee @CKLegal.net Attorney for Defendant Nittany Pilot Car & Safety Co. x ;b,• 1 CALDWELL & KEARNS JAMES R.CLIPPINGER OF COUNSEL JAMES L.GOLDSMITH A PROFESSIONAL CORPORATION JAMES D.CAMPBELL,JR. STANLEY IA.LASKOWSKI ATTORNEYS AT LAW CHARLES J.DEHART,III DOUGLAS K.MARSICO BRETT M.W00DBURN MICHAEL D.REED THOMAS D.CALDWELL,JR. MICHAEL A.FARRELL (1928-2001) THOMAS M.FRATICELLI 3631 NORTH FRONT STREET PETER M.GOOD HARRISBURG, PENNSYLVANIA 17110-1533 CARL G.WASS ELIZABETH H.FEATHER (1937-2010) GREGORY D.GEISS THOMAS S.LEE 717-232-7661 RICHARD L.KEARNS DAVID J.EVENHUIS FAX:717-232-2766 RETIRED JESSICA E.MERCY JOSEPH S.SWARTZ THEFI RM @CKLEGAL.NET Email:tlee @CKLega.net November 4, 2013 Brian Breen Esq. Bret Shaffer, Esq. WILSON, ELSER, MOSKOWITZ, Barick Scherer, LLC EDELMAN & DICKER, LLP 19 West South Street Independence Square West Carlisle, PA 17013 The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Gregory J. Kelley, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 RE: Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10, subrogees of JR Trucking and Rigging, Inc. v. Nittany Pilot Car& Safety Co., M&D Pilot Car and Bayside Engineering Cumberland County Docket No.: 13-578 Dear Counselors: Enclosed please find a Notice of Intent to Serve a Subpoena To Produce Documents and Things For Discovery. Kindly advise if you are willing to waive the twenty-day waiting period attendant to the enclosed subpoenas. Thank you for your attention to this matter. Very truly yours, Thomas S. Lee Caldwell & Kearns TS L/pkw Enclosures 12079-010/206008 x / Thomas S. Lee, Esquire Attorney 1.D. #89440 Caldwell &Kearns 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717)232-2766 (fax) Attorneys for Defendant Nittany Pilot Car&Safety Co. CERTAIN UNDERWRITERS AT : IN THE COURT OF COMMON PLEAS LLOYD'S LONDON SUBSCRIBING : CUMBERLAND COUNTY, PENNSYLVANIA TO POLICY NUMBER CK21102A 10, . as subrogees of JR TRUCKING AND : NO.: 13-578 RIGGING, INC., • Plaintiff : CIVIL ACTION—LAW vs. JURY TRIAL DEMANDED NITTANY PILOT CAR & SAFETY CO., M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant Nittany Pilot Car & Safety Co. intends to serve a Subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoena. If no objection is made the Subpoena may be served. CALDWELL & KEARNS Dated: November 5, 2013 By: /L-6\ Thomas S. Lee, Esquire Attorney I.D. #89440 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) tlee@CKLegal.net Attorneys for Defendant Nittany Pilot Car &Safety Co. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING : NO.; 13-578 TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND RIGGING, INC., : CIVIL ACTION—LAW Plaintiff vs. : JURY TRIAL DEMANDED • NITTANY PILOT CAR& SAFETY CO., M&D PILOT CAR and BAYSIDE : ENGINEERING, • Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Bayside Engineering 600 Unicorn Park Drive Woburn, MA 01801 Within twenty(20)days after service of this subpoena,you are ordered by the Court to produce the following documents or things: Copy of any and all documents, invoices,bills, correspondence, memoranda, or emails, pertaining to engineering services for JR Trucking &Rigging,Inc. for Interstate 95 (New Hampshire Border) to Interstate 295 (Rhode Island Border) as outlined in the February 4,2011,letter from Brian A.Boucher.P.E.to Beth Jenkins to CALDWELL& KEARNS,3631 NORTH FRONT STREET,HARRISBURG,PA 17110. You may deliver or mail legible copies of the documents or produce things requested by this subpoena,togethe with the certificate of compliance,to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty(20) days after its service,the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Thomas S. Lee, Esquire ADDRESS: 3631 North Front Street Harrisburg, PA 17110 TELEPHONE: (717) 232-7661 SUPREME COURT ID #: 89440 ATTORNEY FOR: Nittany Pilot Car & Safety Co. BY THE COURT: DATE: BY: Seal of the Court DAVID BUELL, PROTHONOTARY CERTIFICATE OF SERVICE AND NOW, this 5t)' day of November, 2013, I hereby certify that I have served a copy of the Notice of Intent to Serve Subpoena on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Brian Breen Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Counsel for Plaintiff Bret Shaffer, Esq. Barick Scherer, LLC 19 West South Street Carlisle, PA 17013 Counsel for Defendant M&D Pilot Car Gregory J. Kelley, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Counsel for Defendant Bayside Engineering CALDWELL & KEARNS By: )2079-0)0/206004 CERTIFICATE OF SERVICE AND NOW this 10 day of December, 2013, I hereby certify that I have served a copy of the foregoing Certificate Prerequisite to Service of Subpoenas Pursuant to Rule 4009.22 in the above captioned action by forwarding a true and correct copy of same by First Class United States Mail, postage prepaid, addressed to the following: Brian Breen Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Counsel for Plaintiff Bret Shaffer, Esq. Barick Scherer, LLC 19 West South Street Carlisle, PA 17013 Counsel for Defendant M&D Pilot Car / By: 12079-010/209108 Thomas S. Lee, Esquire Attorney I.D. #89440 Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 / FAX (717) 232-2766 tlee@CKLegal.net Attorneys for Defendant Nittany Pilot Car & Safety Co. CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING : TO POLICY NUMBER CK21102A10 : as subrogees of JR TRUCKING AND RIGGING, INC. Plaintiff V. NITTANY PILOT CAR & SAFETY CO., : M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants i OE ( fl lE Fjo THONG Zilf 4 - I AN ID: 14 3 . CUMBERLAND COUNT Y PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No, 2013-578 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED NITTANY PILOT CAR & SAFETY CO.'S MOTION TO COMPEL PLAINTIFF'S DISCOVERY RESPONSES AND NOW, comes Defendant Nittany Pilot Car & Safety Co. [hereinafter "moving Defendant"] by and through their attorneys, Caldwell & Kearns, P.C., and files the within Motion to Compel Plaintiffs' Discovery Responses for failing to meet their obligation under the Pennsylvania Rules of Civil Procedure; and, in support thereof, avers the following: 1. Plaintiff in this action is Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10 as subrogees of JR Trucking and Rigging, Inc. ["Plaintiff']. 2. The allegations in this case pertain generally to a tractor trailer that collided with a bridge overpass at the 495 bridge on Massachusetts 1-95 on or about February 22, 2011. 3. On April 1, 2013, moving Defendants served Plaintiff with Interrogatories and Request for Production of Documents. 4. Plaintiff has failed to respond to the Interrogatories or Request for Production of Documents in any form. 5. On August 7, 2013 and December 4, 2013 the undersigned sought in writing Plaintiffs verified responses to the aforementioned outstanding discovery. See August 7, 2013 correspondence and December 4, 2013 correspondence attached hereto as Exhibit "A". 6. To date the Interrogatories and Request for Production of Documents remain unanswered. 7. Pursuant to Pennsylvania Rule of Civil Procedure 4019, moving Defendant respectfully requests an Order of Court to compel Plaintiffs response to moving Defendants outstanding discovery and any other relief as the Court deems just, necessary, and appropriate. WHEREFORE, moving Defendant Nittany Pilot Car & Safety Co. respectfully requests that this Honorable Court order Plaintiff to respond full and without objection to the Interrogatories and Request for Production of Documents. Date: Cf Respectfully submitted, CALDWELL & KEARNS By: g - Thomas S. Lee, Esquire Attorney I.D. No. 89440 3631 North Front Street Harrisburg, PA 17110 717-232-7661 / 717-232-2766 (Fax) tlee@CKLegal.net Attorney for Defendant Nittany Pilot Car & Safety Co. CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING : TO POLICY NUMBER CK21102A10 : as subrogees of JR TRUCKING AND RIGGING, INC. Plaintiff V. NITTANY PILOT CAR & SAFETY CO., : M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2013-578 Civil Term RULE 208.2 WI CONCURRENCE OF COUNSEL The concurrence of opposing counsel of record was sought and said counsel has not concurred with the Motion. CALDWELL & KEARNS, P.C. Thomas Lee, Esquire JAMES R. CLIPPINGER JAMES L. GOLDSMITH STANLEY J.A. LASKOWSKI DOUGLAS K. MARSICO BRETT M. WOODBURN MICHAEL D. REED MICHAEL A. FARRELL THOMAS M. FRATICELLI PETER M. GOOD ELIZABETH H. FEATHER GREGORY D. GEISS THOMAS S. LEE DAVID .1. EVENHUIS JESSICA E. MERCY JOSEPH S. SWARTZ CALDWELL & KEARNS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3631 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110-1533 717-232-7661 FAX: 717-232-2766 THEFIRM@CKLEGAL.NET August 7, 2013 Brian F. Breen, Esq. Wilson Elser Moskowitz Edelman & Dicker Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 OF COUNSEL JAMES D. CAMPBELL, JR. CHARLES J. DEHART, 111 THOMAS D. CALDWELL, JR. (1928-2001) CARL G. WASS (1937-2010) RICHARD L. KEARNS RETIRED Email: tlee@CICLegalmet RE: Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10, subrogees of JR Trucking and Rigging, Inc. v. Nittany Pilot Car & Safety Co., M&D Pilot Car and Bayside Engineering Cumberland County Docket No.: 13-578 Dear Mr. Breen: On April 1, 2013, I served Interrogatories and a Request for Production on your client, which have gone unanswered. Please provide verified responses by Tuesday, August 13, 2013, so I can avoid filing a motion in this regard. Thank you for your attention to this matter. TSL/pkw cc: Vito DeGi-egorio (via acsimile) 12079-010/204998 Sincerely, 1A4sw.„3 53d)--e.e, Thomas S. Lee CALDWELL & KEARNS • g. JAMES R. CLIPPINGER JAMES L. GOLDSMITH STANLEY J.A. LASKOWSKI DOUGLAS K. MARSICO BRETT M. WOODBURN MICHAEL D. REED MICHAEL A. FARRELL THOMAS M. FRATICELLI PETER NL GOOD ELIZABETH H. FEATHER GREGORY D. GEISS THOMAS S. LEE DAVID J. EVENHUIS JESSICA E. MERCY JOSEPH 5, SWARTZ CALDWELL & KEARNS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3631 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110-1533 717-232-7661 FAX: 717-232-2766 THEFIRM@CKLEGAL.NET December 4, 2013 Via Facsimile - 215-627-22,65 And 1°t-Class Mail Brian F. Breen, Esq. Wilson Elser Moskowitz Edelman & Dicker Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 OF COUNSEL JAMES D. CAMPBELL, JR. CHARLES J. DEHART, 111 THOMAS D. CALDWELL, JR. (1928-2001) CARL G. WASS (1937-2010) RICHARD L KEARNS RETIRED Email: llee@CKLegal.net RE: Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10, subrogees of JR Trucking and Rigging, Inc. v. Nittany Pilot Car & Safety Co., M&D Pilot Car and Bayside Engineering Cumberland County Docket No.: 13-578 Dear Mr. Breen: On April 1, 2013, I served Interrogatories and a Request for Production of Documents on your client. On August 7, 2013, I sent you and additional letter seeking the verified responses to the outstanding discovery. This is now my second request for discovery responses. I ask that you have your client's verified responses to me within fifteen (15) days from the date of this letter which is being sent to you by fax and 1°`-Class Mail. If I do not receive responses, 1 will seek Court intervention and sanctions. Thank you for your attention to this matter. Sincerely, 1 TSL/pkw cc: Vito DeGregorio (via facsimile) 12079-010/208976 Thomas S. Lee Caldwell & Kearns AND NOW, this CERTIFICATE OF SERVICE day of MAA,c4 4 , 2014, I hereby certify that I have served a copy of the Motion to Compel on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Bret P Shaffer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Attorney for Defendant M&D Pilot Car By: 12079-010/FL*4808 CALDWELL & KEARNS CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING : TO POLICY NUMBER CK21102A10 as subrogees of JR TRUCKING AND RIGGING, INC. Plaintiff v. NITTANY PILOT CAR & SAFETY CO., : M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2013-578 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER D r.) AND NOW, this 8TH day of APRIL, 2014, a Rule is issued upon Plaintiffs to Show Cause why Defendant Nittany Pilot Car and Safety Company's Motion to Compel should not be granted. Rule returnable twenty (20) days after service. Distribution: Chambers of Edward E. Guido, J. c ^.1 C rr ./grian Breen, Esquire, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Independence Square West, The Curtis Center, Suite 1130 East, Philadelphia PA 19106 Bret P. Shaffer, Esquire, Baric Scherer, LLC, 19 West South Street, Carlisle, PA 17013 ,..-A‘mas S. Lee, Esquire, Caldwell & Kearns, 3631 North Front Street, Harrisburg, PA 17110 0.4p 40/7; CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING : TO POLICY NUMBER CK21102A10, : as subrogees of JR TRUCKING AND RIGGING, INC., Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2013-578 Civil Term Ca rn co cm rri r - -, --rt3' w c) NITTANY PILOT CAR & SAFETY CO., : z M&D PILOT CAR and BAYSIDE v CD C") ENGINEERING, .., Defendants u<< M&D PILOT CAR'S MOTION TO COMPEL PLAINTIFF'S DISCOVERY RESPONSES AND NOW, comes Defendant M&D Pilot Car (hereinafter "M&D"), by and through its attorneys, Baric Scherer LLC, and files the within Motion to Compel Plaintiff's Discovery Responses for failure of Plaintiff to meet its obligation under the Pennsylvania Rules of Civil Procedure, averring the following in support thereof: 1. Plaintiff is Certain Underwriters at Lloyd's London Subscribing to Policy Number CK21102A10 as subrogees of JR Trucking and Rigging, Inc. (hereinafter "Plaintiff'). 2. The allegations in this case pertain generally to a cargo -carrying tractor trailer that collided with the 495 overpass running above Massachusetts I-95 on or about February 22, 2011. 3. On February 5, 2014, M&D served Plaintiff with Interrogatories and a Request for Production of Documents. 4. Plaintiff, while responding to the similar Interrogatories and Request for Production of Documents of the Co -Defendant, Nittany Pilot Car & Safety Co., has not responded to the Interrogatories and Request for Production of Documents of M&D. 5. M&D makes the following specific requests in its Request for Production of Documents: 2. Any document establishing Plaintiff as a subrogee of JR Trucking and Rigging, Inc., including but not limited to the insurance policy with Plaintiff's Insured. 6. Each and every document concerning the above -captioned action or its subject matter prepared, obtained or otherwise in the possession, custody or control of Plaintiff and/or Plaintiffs attorney, investigator and/or any other agent or representative excluding only that non -discoverable material which is attorney client privileged or protected by the attorney work -product doctrine. A copy of the Request for Production of Documents is attached hereto as Exhibit "A" and is incorporated by reference as though set forth fully herein. 6. It is of particular concern to M&D that Plaintiff has failed to produce both the insurance contract between Plaintiff and its insured, JR Trucking and Rigging, Inc., and any itemization of the total paid out by Plaintiff on behalf of JR Trucking and Rigging, Inc. 7. On March 17, 2014, May 6, 2014, and July 2, 2014, the undersigned sought in writing Plaintiffs responses to the aforementioned outstanding discovery. Copies of this correspondence are attached hereto as Exhibit "B" and are incorporated by reference as though set forth fully herein. 8. Pursuant to Pa.R.C.P. 4019, this Court has authority to compel responses by Plaintiff to M&D's Interrogatories and Request for Production of Documents and otherwise sanction Plaintiff. 9. The undersigned sought concurrence by Plaintiff's counsel in regard to this motion, and Plaintiff's counsel has not concurred with the motion. WHEREFORE, M&D Pilot Car respectfully requests this Honorable Court order Plaintiff to respond in full and without objection to the Interrogatories and Request for Production of Documents, and provide any other relief as this Court deems just and proper. Respectfully submitted, BARIC SCHERER LLC Date: 7 a3 0201 4 Bret P. Saffer, squire Attorney ID No. 309180 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 (717) 249-5755 FAX bshaffer@baricscherer.com Attorney for Defendant M&D Pilot Car EXHIBIT "A" CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND RIGGING, INC., Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2013-578 Civil Term NITTANY PILOT CAR & SAFETY CO., : M&D PILOT CAR and BAYSIDE ENGINEERING, Defendants REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT M&D PILOT CAR PROPOUNDED UPON PLAINTIFF Pursuant to Pa. R. Civ. P. No. 4009, as amended, Defendant M&D Pilot Car, and its attorneys, Baric Scherer LLC, request you to produce copies of the following documents within thirty (30) days of service of this request. INSTRUCTIONS If you object to the production of any document on the grounds that the attorney-client, attorney work -product or any other privilege is applicable thereto, you shall with respect to that document: (a) (b) (c) (d) (e) (0 (g) State its date; Identify its author; Identify each person from whom the document was received; Identify each person who received it; Identify each person from whom the document was received; State the present location of document and all copies thereof; Identify each person who has ever had possession, custody or control of it or copy thereof; and (h) Provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of that claim. The term "document" as used herein shall mean the original and any copy, marked up copy, revision, amendment, modification, non-identical copy and/or draft, or any written, printed, typed, drawn or other graphic matter of any kind or nature, however, produced or reproduced, whether or not sent or received, including without limitation; memoranda, reports, computations, estimates, communications, financial reports or statements, notes, transcripts, letters, correspondence, intra or inter office communications, envelopes, telegrams, cables, telephone messages, messages, emails, electronic transmissions, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, minutes, notes, notations, tabulations, studies, analyses, reports, evaluations, projection, work papers, summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings, blue prints, modules, specifications, data, sketches, maps, boring logs, soil tests, soil charts, soil r reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices, checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or tape recordings of meetings or conferences, summaries or reports of investigations, opinions or reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts, articles, magazines, newspapers, booklets, circulars, bulletins, press releases, notices, instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion picture film, microfilms, photographs, tapes or other recordings, punch charts, computer programs, magnetic tapes, discs, data cells, drums, printout and other data computations from which information can be obtained, and marginal comments appearing on any documents, and all other writings in the possession, custody or control of Plaintiff or its agents, officers, employees or attorneys. DOCUMENTS REQUESTED 1. All documents related to the above -captioned action utilized, referenced or identified in Plaintiffs completed responses to Defendant M&D Pilot Car's First Set of Interrogatories Addressed to Plaintiff, including any documents specifically requested by M&D Pilot Car in said First Set of Interrogatories. 2. Any document establishing Plaintiff as a subrogee of JR Trucking and Rigging, Inc., including but not limited to the insurance policy with Plaintiffs Insured. 3. Any contract or agreement within Plaintiff's possession or control that exists between any or all of the following entities and that relates to the above -captioned action: (a) Plaintiff; (b) Plaintiff's Insured, JR Trucking and Rigging, Inc.; (c) M&D Pilot Car; (d) Nittany Pilot Car & Safety Co.; (e) Bayside Engineering; (f) Metso Paper USA, Inc.; (g) First Quality Tissues. 4. Each and every expert report prepared by any expert engaged by Plaintiff or on Plaintiffs behalf who could be called to testify at the trial of this case. 5. The most recent resume or curriculum vitae of each expert whom Plaintiff expects to call as an expert witness at trial. 6. Each and every document concerning the above -captioned action or its subject matter prepared, obtained or otherwise in the possession, custody or control of Plaintiff and/or Plaintiff's attorney, investigator and/or any other agent or representative excluding only that non - discoverable material which is attorney client privileged or protected by the attorney work - product doctrine. 7. Any document relating to any route proposed for the delivery of the cargo being carried by JR Trucking and Rigging, Inc. from Metso Paper USA, Inc. to First Quality Tissues on the date of the incident described in the Complaint that is in the possession, custody or control of Plaintiff and/or Plaintiff's attorney, investigator and/or any other agent or representative and that is not otherwise protected by attorney-client privilege or the attorney work -product doctrine. 8. Any documents prepared by or for Plaintiff during Plaintiff's regular course of business as a result of the incident complained of in the Complaint. 9. Any and all documents or correspondence that in any way relate to the occurrence complained of in the Complaint that are in the possession, custody or control of Plaintiff and/or Plaintiff's attorney, investigator and/or any other agent or representative and that are not otherwise protected by attorney-client privilege or the attorney work -product doctrine. 10. Any document or list including the name and address of any employee, officer, agent or independent contractor of Plaintiff's Insured, JR Trucking and Rigging, Inc.—including but not limited to those persons working for JR Trucking and Rigging, Inc. through a staffing agency or similar third party—who was involved in the loading and transport of either (1) the damaged cargo described in the Complaint or (2) any other cargo from Metso Paper USA, Inc. traveling along with the damaged cargo, whether or not it was loaded on a separate vehicle. 11. Any document containing a statement or summary of a statement of a witness to the loading and/or transport of either (1) the damaged cargo described in the Complaint or (2) any other cargo from Metso Paper USA, Inc. traveling along with the damaged cargo, whether or not it was loaded on a separate vehicle. Respectfully submitted, BARIC SCHERER LLC Bret P. ha e , Esquire I.D.# 309180 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Defendant M&D Pilot Car CERTIFICATE OF SERVICE I hereby certify that on February 5, 2014, I, Bret P. Shaffer, Esquire of Baric Scherer LLC, did serve a copy of the Request for Production of Documents of Defendant M&D Pilot Car Propounded upon Plaintiff by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Brian Breen, Esquire Wilson, Elser, Moskowitz, Edelman & Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Attorney for Plaintiff Thomas S. Lee, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant Nittany Pilot Car & Safety Co. Biret Pl. h , Esquire Bret Shaffer From: Bret Shaffer [bshaffer@baricscherer.com] Sent: Monday, March 17, 2014 1:00 PM To: 'Karen.Gottlieb@wilsonelser.com' Subject: Certain Underwriters at Lloyd's v. Nitany Pilot Car, M&D Pilot Car, Bayside Engineering Dear Karen, I had mailed interrogatories and document production requests to your office on February 5th. Could you advise me of the status of that discovery? Thanks, Bret P. Shaffer, Esq. Baric Scherer LLC 19 West South Street Carlisle, Pennsylvania 17013 Phone: (717) 249-6873 Fax: (717) 249-5755 Confidential Electronic Mail Notice: The information contained in this message is intended only for the persons to whom it is addressed and may contain confidential or privileged material. Copying, distributing, dissemination, reliance on, or other use of the information by persons other than the intended recipient(s) is prohibited. If you received this message in error, please notify the sender and delete the entire message from any computer. 1 Bret Shaffer From: Bret Shaffer [bshaffer@baricscherer.com] Sent: Tuesday, May 06, 2014 10:31 AM To: 'Karen.Gottlieb@wilsonelser.com' Cc: 'TLee@cklegal.net' Subject: Certain Underwriters at Lloyd's London v. Nittany Pilot Car & Safety Co., et al. Karen, I served upon Attorney Breen M&D Pilot Car's interrogatories and document production requests to Lloyd's on February 5, 2014. I then requested, via e-mail, an update from you as to the status of the same on March 17, 2014. To date, I have received no response. Please contact me regarding this issue. I will be filing a motion to compel before the end of the week. Thank you, Bret P. Shaffer, Esq. Baric Scherer LLC 19 West South Street Carlisle, Pennsylvania 17013 Phone: (717) 249-6873 Fax: (717) 249-5755 ******************************************************************* Confidential Electronic Mail Notice: The information contained in this message is intended only for the persons to whom it is addressed and may contain confidential or privileged material. Copying, distributing, dissemination, reliance on, or other use of the information by persons other than the intended recipient(s) is prohibited. If you received this message in error, please notify the sender and delete the entire message from any computer. 1 Bret Shaffer From: Bret Shaffer [bshaffer@baricscherer.com] Sent: Tuesday, May 06, 2014 4:00 PM To: 'Karen.Gottlieb@wilsonelser.com' Subject: Certain Underwriters at Lloyd's London v. Nittany Pilot Car & Safety Co., et al. Karen, Pursuant to Cumberland County Local Rules, please allow this email to serve as my request that you concur in the relief I will be requesting in a motion to compel Lloyd's to answer M&D's interrogatories and produce documents in response to M&D's request for production of documents. Thank you, Bret P. Shaffer, Esq. Baric Scherer LLC 19 West South Street Carlisle, Pennsylvania 17013 Phone: (717) 249-6873 Fax: (717) 249-5755 ******************************************************************* Confidential Electronic Mail Notice: The information contained in this message is intended only for the persons to whom it is addressed and may contain confidential or privileged material. Copying, distributing, dissemination, reliance on, or other use of the information by persons other than the intended recipient(s) is prohibited. If you received this message in error, please notify the sender and delete the entire message from any computer. 1 Bret Shaffer From: Bret Shaffer [bshaffer@baricscherer.com] Sent: Wednesday, July 02, 2014 3:40 PM To: 'Karen.Gottlieb@wilsonelser.com' Cc: 'Thomas Lee' Subject: Lloyd's v. Nittany, M&D Karen, Following up on our discussion the other day in between depositions: After reviewing my file, it appears that JR Trucking provided answers to the interrogatories submitted by Nittany and that JR Trucking provided the documents in correspondence with the document production request of Nittany. I would respectfully request that the interrogatories and discovery requests that I have submitted to you on behalf of my client, M&D Pilot Car, be answered specifically, without objection, as the answer period has already passed. I understand that your position may be that JR Trucking may be the only party required to provide a signed verification. I do not wholly agree with that analysis. While Lloyd's stands in the shoes of JR as subrogee, Lloyd's is—until I find authority stating otherwise—the party in interest, and therefore subject to my interrogatories and document production requests, meaning the verifications should be signed by agents of Lloyd's, if not both Lloyd's and JR Trucking. What concerns me most is that I have yet to see an insurance policy between JR and Lloyd's, and, to my knowledge, there is no breakdown of damages anywhere in the discovery materials you have already produced. While there is a summary provided as to the amount of time required to repair the paper roll, I find it difficult to believe that Lloyd's wrote a check based on a total amount of damages without description of how that total was determined. Should you dispute any of these issues, please consider this my request for concurrence in filing a motion to compel in regard to both the interrogatories and document production requests that I have previously served upon your firm for Lloyd's. Thank you, Bret P. Shaffer, Esq. Baric Scherer LLC 19 West South Street Carlisle, Pennsylvania 17013 Phone: (717) 249-6873 Fax: (717) 249-5755 ******************************************************************* Confidential Electronic Mail Notice: The information contained in this message is intended only for the persons to whom it is addressed and may contain confidential or privileged material. Copying, distributing, dissemination, reliance on, or other use of the information by persons other than the intended recipient(s) is prohibited. If you received this message in error, please notify the sender and delete the entire message from any computer. 1 CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING : TO POLICY NUMBER CK21102A10, : as subrogees of JR TRUCKING AND RIGGING, INC., Plaintiff v. NITTANY PILOT CAR & SAFETY CO., : M&D PILOT CAR and BAYSIDE ENGINEERING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2013-578 Civil Term Defendants CERTIFICATE OF SERVICE I, Bret P. Shaffer, Esquire, hereby certify that on July 23, 2014, I made service of the foregoing Motion to Compel upon the following via first-class U.S. mail, postage prepaid: Brian Breen, Esq. and Karen Gottlieb, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 Thomas S. Lee, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Date: 7 123 0(`i Respectfully submitted, BARIC SCHERER LLC Bret P. Shaffer, Esquire Attorney ID No. 309180 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 (717) 249-5755 FAX bshaffer@baricscherer.com Attorney for Defendant M&D Pilot Car r 3 a CERTAIN UNDERWRITERS IN THE COURT OF COMMON PLEAS AT LLOYD'S LONDON SUBSCRIBING OF CUMBERLAND COUNTY TO POLICY NUMBER CK21102A10, as subrogees of JR TRUCKING AND No. 2013-578 Civil Term RIGGING, INC., Plaintiff ' C-) V. =rn c:-- r— NITTANY PILOT CAR& SAFETY CO., < u� C:)M&D PILOT CAR and BAYSIDE ENGINEERING, cD Defendants " .z ORDER AND NOW, this u day of , 2014, a Rule is issued upon Plaintiff to Show Cause why Defendant M&D Pilot Car's Motion to Compel should not be granted. Rule returnable twenty (20) days after service. e Court, Edward E. Guido, J. Distribution: ,"Brian Breen, Esq. and Karen Gottlieb, Esq., Wilson, Elser, Moskowitz, Edelman& Dicker, LLP Independence Square West, The Curtis Center, Suite 1130 East, Philadelphia, PA 19106 " Thomas S. Lee, Esquire, Caldwell & Kearns, 3631 North Front Street, Harrisburg, PA 17110 ✓'Bret P. Shaffer, Esquire, Baric Scherer LLC, 19 West South Street, Carlisle, PA 1701.3 7 91r�