Loading...
HomeMy WebLinkAbout13-2895 Supreme Coof Pennsylvania Courts ffCommon Pleas For Prothonotary Use Only: Out ver Sheet � r-t d Docket No: S� Cu �¢erland"' County r The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S 0 Complaint © Writ of Summons Petition Transfer from Another Jurisdiction ® Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Pyle Transport Services, Inc. Coal City Cob Company, Inc. Dollar Amount Requested: El within arbitration limits I Are money damages requested? Yes No O (check one) [3outside arbitration limits N Is this a Class Action Suit? 0 Yes Xi No Is this an MDJAppeal? 0 Yes El No A Name of Plaintiff /Appellant's Attorney: Angela N. Rainey, Esq. 0 Check here if you have no attorney (are a Self- Represented [Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS 0 Intentional ® Buyer Plaintiff Administrative Agencies IM Malicious Prosecution ® Debt Collection: Credit Card Board of Assessment x; Motor Vehicle Debt Collection: Other Board of Elections Nuisance 0 Dept. of Transportation © Premises Liability Statutory Appeal: Other S Product Liability (does not include E mass tort) Q Employment Dispute: Slander/Libel/ Defamation Discrimination C Other: Employment Dispute: Other Zoning Board T Q Other: I Other: O MASS TORT 0 Asbestos N E] Tobacco [ Toxic Tort - DES 0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Q Toxic Waste ©i Other. 13 Ejectment E] Common Law /Statutory Arbitration B ® Eminent Domain /Condemnation Declaratory Judgment © Ground Rent Mandamus Landlord/Tenant Dispute Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial 13 Quo Warranto ®' Dental ® Partition ® Replevin Q Legal Quiet Title 0 Other: ® Medical r-11 Other: Other Professional: Updated 1/1/2011 4` LEO - OFF - IC- OF a +- c i'f�O�t�O�OTAFi `rt' x011 MAY 21 PH 1:00 CUMBERLAND COUNTY PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. i • �� COAL CITY COB COMPANY, INC. and CIVIL ACTION -LAW ROGER GARCIA, ; Defendants JURY DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights import 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 YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249 -3166 PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. COAL CITY COB COMPANY, INC. and : CIVIL ACTION -LAW ROGER GARCIA, Defendants JURY DEMANDED NOTICIA LE HAN DEMANDO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tien viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia excrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, BAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249 -3166 PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. COAL CITY COB COMPANY, INC. and CIVIL ACTION -LAW ROGER GARCIA, Defendants JURY DEMANDED COMPLAINT NOW COMES, Plaintiff Pyle Transport Services, Inc. by and through its attorneys, MARCELLO & KIVISTO, LLC, and files this Complaint against Defendants and in support thereof avers as follows: 1. Plaintiff Pyle Transport Services, Inc. is a Pennsylvania Corporation with a business address located at 650 Westtown Road, P.O. Box 564, West Chester, Chester County, Pennsylvania 19381. 2. Defendant Roger Garcia is an adult individual with a residence at 9128 McArthur Court, Totar, Hood County, TX 76476. 3. Defendant Coal City Cob Company, Inc. (hereinafter "Coal City "), is an Illinois corporation with a place of business located at 195 N. Will Road, Box 122, Coal City, Grundy County, Illinois 60416. 4. At all times relevant hereto, Defendant Garcia was the agent, employee, and /or representative of Defendant Coal City. 5. At all times relevant hereto, the vehicle operated by Defendant Garcia was owned by Defendant Coal City and operated pursuant to Defendant Coal City's operating authority and subject to the duties and obligations arising from said authority. 6. On or about October 17, 2011 at approximately 11:00 a.m. Plaintiff's vehicle was traveling on Interstate 81 North in the exit lane for the rest area in around mile marker 37 in West Pennsboro Township, Cumberland County, Pennsylvania. 7. At said date, time and location, Defendants' vehicle was operating in the right lane of Interstate 81 North behind Plaintiff's vehicle. 8. At said date, time and location, Plaintiff's vehicle was hauling a Moffett forklift, owned by Plaintiff, on the rear of its trailer. 9. At said date, time and location, Defendants' vehicle rear -ended Plaintiff's vehicle. 10. As a result of said accident, Plaintiff suffered damages to its trailer and Moffett forklift and loss of use of its trailer and forklift. COUNT PYLE TRANSPORT SERVICES INC. v. ROGER GARCIA NEGLIGENCE 11. Plaintiff incorporates by reference Paragraphs 1 through 10 above herein as if set forth in full. 12. The accident was a result of the carelessness, negligence and recklessness of Defendant Garcia, as follows: a. Following too closely; b. Failing to keep a proper lookout; C. Driving at an unsafe speed; d. Failing to keep his vehicle under control; e. Failing to operate his vehicle in a safe and prudent manner so as to avoid striking Plaintiff's vehicle in the rear; £ Failing to operate his vehicle in a proper, lawful and safe manner; g. Operating his vehicle in a reckless and /or inattentive manner; h. Operating his vehicle in violation of 75 Pa.C.S.A. §§ 3361, 3309 and 3714; i. Failing to operate his vehicle in a manner so as to avoid striking Plaintiff's vehicle in the rear. j. Failing to obey the applicable federal, state and/or local laws and/or regulations with regard to the operation of his vehicle; k. was otherwise careless, negligent and/ reckless under the circumstances. 13. As a result of the aforesaid carelessness, negligence and recklessness of Defendant Garcia, Plaintiff s trailer and forklift sustained damages and expenses in the amount of $13,903.40 plus loss of use thereof. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of $13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. COUNT II PYLE TRANSPORT SERVICES INC. v. COAL CITY COB COMPANY INC. VICARIOUS LIABILITY 14. Plaintiff incorporates Paragraphs 1 through 13 above herein as if set forth in full. 15. The Defendant Coal City, as the employer and/or principal of Defendant Garcia, is vicariously liable for the negligence, carelessness and/or recklessness of its agent, employee and/or representative Defendant Garcia. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of $13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. COUNT III PYLE TRANSPORT SERVICES INC. v. COAL CITY COB COMPANY INC. NEGLIGENT ENTRUSTMENT 16. Plaintiff incorporates Paragraphs 1 through 15 above herein as if set forth in full. 17. This accident was the result of the Defendant Coal City's negligent entrustment of its vehicle to Defendant Garcia as Defendant Coal City knew or should have known that Defendant Garcia had a propensity to drive in a careless, negligent or reckless manner 18. As a result of Defendant Coal City's negligent entrustment, Plaintiff suffered damages to its trailer and forklift in the amount of $13,903.40, plus loss of use. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of $13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. Respectfully Submitted, MARCELLO & KIVISTO, LLC Date: B Douglas B. Marcello, Esq. (.D. No. 36510) Angela N. Rainey, Esq. (I.D. No. 207168) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240 -4686 F: (717) 258 -4686 Attorneys for Plaintiff Pyle Transport Services, Inc. PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. COAL CITY COB COMPANY, INC. and : CIVIL ACTION -LAW ROGER GARCIA, Defendants JURY DEMANDED VERIFICATION I, Timothy Hurford, hereby verify that the averments made in the attached document are true and correct to the best of my information, knowledge and belief based upon the information available. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unworn falsification to authorities. B Dated: No. i lfl�i�..�l'�iJ i i aid � `,t � a 4 t ESYt_V'a"�t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC. CIVIL DIVISION Plaintiffs, No: 13-2895-CIVIL V. ENTRY OF APPERANCE COAL CITY COB COMPANY, INC. AND Filed on behalf of Defendants COAL CITY ROGER GARCIA COB COMPANY, INC. AND ROGER GARCIA Defendants. Counsel of record for these parties: PION, JOHNSTON,NERONE, GIRMAN CLEMENTS & SMITH, P.C. John T. Pion, Esquire PA I.D. # 43765 James DeCinit, Esquire PA I.D. #77421 355 North 21St Street, Suite 102 Camp Hill, PA 17011 717-737-5833 j decinitkpionj ohnston.com w No. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC. ) CIVIL DIVISION Plaintiffs, ) No: 13-2895-CIVIL ) V. ) COAL CITY COB COMPANY, INC. AND ) ROGER GARCIA ) Defendants. ) PRAECIPE FOR ENTRY OF APPEARNCE TO THE PROTHONOTARY: Kindly enter the appearance of PION, JOHNSTON,NERONE, GIRMAN, CLEMENTS & SMITH, P.C., John T. Pion, Esquire and James DeCinti, Esquire on behalf of the Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA in the above-captioned matter. PION, JOHNSTON,NERONE, GIRMAN, CLEMENTS & SMITH, P.C. By I /1�� John T. Pion, Esquire Pa. I.D. 43675 James DeCinti, Esquire Pa. I.D. 77421 355 North 21St Street, Suite 102 Camp Hill, PA 17011 717-737-5833 'de`7 cintigpionjohnston.com No. CERTIFICATE OF SERVICE I, James DeCinti, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served upon counsel of record by Electronic Mail this 27th day of June 2013, as follows: Douglas B. Marcello, Esq. Angela N. Rainey, Esq. Marcello &Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 dmarcello@cdl-law.com arainey@cdl-law.com COUNEL FOR PLAINTIFF PION, JOHNSTON,NERONE, GIRMAN, CLEMENTS & SMITH, P.C. By James DeCinti, Esquire Pa. I.D. 77421 355 North 21st Street, Suite 102 Camp Hill, PA 17011 717-737-5833 idecintigpioniohnston.com PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 13-2895 Civil COAL CITY COB COMPANY, INC. and CIVIL ACTION - LAW C") c ROGER GARCIA, v Defendants JURY DEMANDED _ ;? AFFIDAVIT OF SERVICE <c � ILL, being duly sworn according to law, deposes ays. � ., —t 4z_ 1. He/she is a competent adult, age years, who is not a party to the above action. � R oc3 ✓� 2. On "" (3 (date), at 00 (time), service of the Complaint in the above-captioned action was made by the undersigned by handing a copy to U RCS p (name), who is h'l C104-e— IW6F ACS (relationship to Defendant Coal Cooal City Cob Company, Inc.). 3. Service occurred at �0 J` — f.G► G'�i �! Ld � , �� 47d 41�L , which is the Defendant Coal City Cob Company, Inc.'s usual place of business. Signature Print Name Sworn and subscribed to before me this p\S day of 2013. Notary Public My Commission Expires:' TALBOT C.MOE I OFFICIAL SEAL Notary Publio•State of Illinois My Commission rss �I PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 13-2895 Civil COAL CITY COB COMPANY, INC. and CIVIL ACTION - LAW ROGER GARCIA, Defendants JURY DEMANDED CERTIFICATE OF SERVICE I certify that the Affidavit of Service in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 12th day of July, 2013. James DeCinti, Esq. Pion Johnston 3 55 North 21 sc Street, Suite 102 Camp Hill, PA 17011 r Angela N. Rainey, Esq. -,e PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 13-2895 Civil COAL CITY COB COMPANY, INC. and CIVIL ACTION - LAW ' ROGER GARCIA, -w Defendants JURY DEMANDED r ;i r- .1 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY. Kindly, reinstate Plaintiff's Complaint that was filed in the above-captioned action on May 21, 2013. Respectfully Submitted, MARCELLO & KIVISTO,LLC Date: _ ��3 By: Douglas t. Marcello, Esq. Attorney I.D. No. 36510 Angela N. Rainey, Esq. Attorney I.D. No. 207168 Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 T: (717) 240-4686 F: (717) 258-4686 Attorneys for Plaintiffs a t�. a :v z PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 13-2895 Civil COAL CITY COB COMPANY, INC. and CIVIL ACTION- LAW ROGER GARCIA, Defendants JURY DEMANDED CERTIFICATE OF SERVICE I certify that the Praecipe to Reinstate Complaint in the within action was served upon the following by enclosing the same in an envelope addressed as follows,postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 9th day of August, 2013. James DeCinti, Esq. Pion Johnston 355 North 21St Street, Suite 102 Camp Hill, PA 17011 Angela 14. Rainey, Esq. i C_'fE 20 13 AUG 16 AM Icy: Ij PEENS YLVA 1;' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13-2895-CIVIL V. PRELIMINARY OBJECTIONS TO COAL CITY COB COMPANY, INC. AND PLAINTIFF'S COMPLAINT ROGER GARCIA Filed on behalf of Defendants, COAL CITY COB COMPANY, INC. AND Defendants. ROGER GARCIA Counsel of record for these parties: John T. Pion, Esquire PA I.D. #43675 James DeCinti, Esquire PA I.D. #PA 77421 PION,NERONE, GIRMAN, WINSLOW& SMITH, P.C. 355 North 21St Street, Suite 102 Camp Hill, PA 17011 JURY TRIAL DEMANDED t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13-2895-CIVIL V. COAL CITY COB COMPANY, INC. AND ROGER GARCIA, Defendants. PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA, by and through their attorneys, PION, NERONE, GIRMAN, WINSLOW, and SMITH, P.C, and James DeCinti, Esquire, and James DeCinti, Esquire and hereby file the within Preliminary Objections to Plaintiff's Complaint and aver as follows: FACTUAL AND PROCEDURAL HISTORY 1. The instant litigation involves a motor vehicle accident on or about October 17, 2011 on I-81 North in West Pennsboro Township, Cumberland County, Pennsylvania. 2. According to the Complaint, the accident was a rear-end accident involving two commercial vehicles. 3. The Complaint in this case is limited to claims related to property damage only. 4. According to the Complaint, the Plaintiff's trailer and forklift were damaged as a result of this accident, giving rise to claims for repair and loss of use to these items of property, which claims are denied. 5. There are no allegations in the Complaint of any bodily injuries suffered by any party as a result of this accident. 6. Prior to filing the instant Preliminary Objections, in an effort to resolve the instant matter without court intervention, counsel for Defendants corresponded with Plaintiff's counsel by email and by letter requesting a Stipulation to remove the objectionable paragraphs. 7. Attached hereto as Exhibit "A" is a copy of a July 12, 2013 letter and proposed Stipulation sent by counsel for Defendants. 8. Plaintiff's counsel has refused to sign the Stipulation or discuss alternate resolution of these objections, thus making the instant Preliminary Objections necessary to obtain an Order of this Honorable Court. 9. Defendants submit these Preliminary Objections to Plaintiff's Complaint in accordance with Pa. R.C.P. 1028 and Cumberland County Local Rule 1028(c). I. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER AND/OR MOTION TO STRIKE ALL PUNITIVE DAMAGES CLAIMS 10. Plaintiff's Complaint contains general allegations of "recklessness" and "reckless" conduct in paragraphs 12, 12(g), 12(k), 13, 15, and 17. See copy of Complaint attached hereto as Exhibit`B". 11. Although the Complaint does not specifically plead punitive damages, the inclusion of allegations of"recklessness" and "reckless" conduct appears to be a veiled attempt to open the door to punitive damages claims. 12. Plaintiff's Complaint, however, fails to plead any facts upon which to support an award of punitive damages. 13. The Complaint fails to allege any intentional, reckless, extreme, or outrageous conduct on the part of Defendants surrounding the occurrence of the accident. 2 14. Pennsylvania Rule of Civil Procedure 1028 (a)(4) allows a Preliminary Objection based on the legal insufficiency of a pleading(demurrer). 15. In order to support a claim for punitive damages, the Complaint allegations must demonstrate conduct on the part of a Defendant that would rise to the level of"outrageous and egregious conduct done in a reckless disregard of Plaintiffs' rights. A court may award punitive damages only if an actor's conduct was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of others." McKeeman v. Corestates Bank, N.A. 751 A.2d 655 (Pa. Super. 2000). 16. In the absence of allegations of culpable conduct on the part of Defendants, the allegations of "recklessness" and "reckless" conduct which could potentially support punitive damages must be dismissed. 17. Plaintiff's Complaint offers no material facts whatsoever to support the conclusory allegations of"recklessness" or"reckless" conduct in this property damage case. 18. In this case, the allegations in Plaintiff's Complaint plead only regular negligence as best, which is denied. WHEREFORE, Defendants respectfully request that this Honorable Court sustain Defendant's Preliminary Objection in the nature of a Demurrer as to any claim for punitive damages and strike all allegations of "recklessness" and "reckless" conduct pleaded in the Complaint. 3 II. PRELIMINARY OBJECTION PURSUANT TO RULE 1028(a)(2) 19. Pennsylvania is a fact pleading state, which requires that a Complaint allege the material facts upon which a cause of action is based. Pa. R.C.P. 1019(a). See also, Miketic v. Baron, 875 A.2d 324 (Pa. Super. 1996). 20. Pennsylvania Rule of Civil Procedure 1028(1)(2) allows a Preliminary Objection where a pleading fails to conform to law or rule of court. 21. Pennsylvania law does not permit an award of punitive damages for a party's mere inadvertence, mistake, error of judgment and the like, which constitutes ordinary negligence. Field v. Philadelphia Electric Co., 565 A.2d 1170, 1184 (Pa.Super. 1989). 22. As indicated above, there are no factual averments whatsoever that could be considered as pleading outrageous and egregious conduct on the part of Defendants, other than the conclusory allegations of"recklessness" and"reckless" conduct. 23. The allegations in Plaintiff's Complaint plead only a negligence cause of action against Defendants at best, which is denied. 24. As such all allegations of "recklessness" and "reckless" conduct should be stricken for failure of Plaintiff's Complaint to conform to Pennsylvania law and the rules of court. WHEREFORE, Defendants respectfully request that this Honorable Court sustain Defendants' Preliminary Objection in the nature of a Motion to Strike and to strike all allegations of"recklessness" and"reckless"conduct from the Complaint. 4 III. PRELIMINARY OBJECTION- MOTION TO STRIKE PURSUANT TO PA. R.C.P. 1028(3) INSUFFICIENT SPECIFICITY OF A PLEADING 25. In addition, Plaintiffs Complaint contains allegations of purported negligence that are insufficiently specific under the Pennsylvania pleading practice, Pennsylvania Rule of Civil Procedure 1028 (a)(3). 26. Defendants object to the following paragraphs of the Complaint: 120) "Failing to obey the applicable federal, state and/or local laws and/or regulations with regard to the operation of his vehicle" and 12(k) "was otherwise careless, negligent and/[sic] reckless under the circumstances". 27. Pennsylvania Rule of Civil Procedure 1019(a) requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." See also Connor v. Allegheny General Hosp., 461 A.2d 600 (Pa. 1983). 28. The above allegations are vague on their face and have the potential to allow Plaintiff to introduce new and/or different theories of recovery at any time prior to trial and after the expiration of any applicable statute of limitations in violation of the law of Pennsylvania. See Connor v. Allegheny Hospital, 461 A.2d 600 (Pa. 1983). 29. Moreover, reference to applicable federal/state/local laws is overly broad and unduly vague. As phrased, Plaintiff s Complaint is drafted to allow new and different theories to be added at any time. 30. Notably, the Connor opinion in footnote 3 suggests that "if appellee did not know how it otherwise failed to use due care under the circumstances, it could have filed preliminary objections in the nature of a request for a more specific pleading, or it could have moved to strike 5 that portion of appellant's Complaint." Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 31. Defendants raise these Preliminary Objections on the same premise as contemplated by the Pennsylvania Supreme Court in Connor, because the allegations in Plaintiff's Complaint in this matter are contrary to the appropriate pleading practice as contemplated and described by the Pennsylvania Supreme Court in Connor and must be stricken. WHEREFORE, Defendants respectfully request that this Honorable Court sustain Defendants' Preliminary Objections and strike paragraphs 120) and 12(k) from the Complaint. Date: August 15, 2013 Respectfully Submitted, PION,NERONE, GIRMAN, WINSLOW, and SMIT P.0 13 James DeCinti, Esquire PA I.D. PA 77421 John T. Pion, Esquire PA I.D. # 43675 355 North 21St Street, Suite 102 Camp Hill, PA 17011 717-737-5833 j decintigpionlaw.com Counsel for Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA 6 EXHIBIT " A " PIONATTORNEYS AT LAW JOHNSTON James DeCinti (717)737-5833 jdecinti@pionjohnston.com July 12,2013 VIA E-MAIL—dmarcello(a,cdl-law.com Douglas B. Marcello, Esquire Marcello &Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 RE: Pyle Transport Services, Inc. v. Coal City Cob Co., Inc. and Roger Our File No.: 5273.319933 Claim No.: 3033956 Dear Doug: I emailed you twice regarding the potential for a stipulation concerning objectionable language to the Complaint. I have not heard form you in that regard. Enclosed herewith is a proposed stipulation. Obviously if you are agreeable to it,please sign it and return it to me for filing and then I can prepare our Answer for filing. If not,let me know so that I can file Preliminary Objections. Thank you very much for your cooperation. Very truly yours, James DeCinti Enclosure JDI Jc PION, JOHNSTON, NERONE, GIRMAN, CLEMENTS 8s SMITH, P.C. Licensed in Pennsylvania• Ohio• West Virginia PITTSBURGH 24-Hour Emergency Response CENTRAL PENNSYLVANIA 1500 One Gateway Center Number 355 North 21" Street. Suite 102 Pittsburgh- Pennsylvania 15222 (a 12)600-0217 Camp Hill • Pennsylvania 17011 (412)281-2288-(412)281-3388 fax w%vw,piorrjohnston.com (717)737-5833 -(717)737-5553 fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13-2895-CIVIL V. COAL CITY COB COMPANY, INC. AND ROGER GARCIA, Defendants. STIPULATION AND NOW, come the parties, by and through their respective counsel and hereby stipulate as follows: 1. The words reckless and recklessness contained in paragraphs 12, 12(g), 12(k), 13, 15, 17 are hereby stricken from Plaintiff's Complaint. 2. Paragraphs 120)and 12(k)are hereby stricken from Plaintiff's Complaint. WHEREFORE,the parties stipulate to the above. Respectfully submitted: Marcello &Kivisto, LLC Pion,Johnston,Nerone, Girman Clements& Smith By: By: Douglas B. Marcello, Esquire James DeCinti,Esquire Attorney I.D.36510 Attorney I.D. 77421 Angela N. Rainey, Esquire John T. Pion,Esquire Attorney I.D. 207168 Attorney I.D.43765 1200 Walnut Bottom Road 355 North 21" Street, Suite Carlisle, PA 17015 Camp Hill,PA 17011 Date: Date: EXHIBIT " B " F ' i1` NTH rn TA- Z'1r3�' �Y�1 PH r: Co r?1 n oc 1 AND. C<;UhT'i' ,� c Y YAK ftA PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. , 3 a S CLU • 11 COAL CITY COB COMPANY, INC. and CIVIL ACTION- LAW ROGER GARCIA, Defendants JURY DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights import 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 YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (7t7)249-3 166 TRUE COPY FROM RECOP.—T3 In Testimony whereof, I here unto Sat my;iand and the�eal of said Court at Carlisle. ;=a. This day of 20 1 F'r�ch notary PYLE TRANSPORT SERVICES, INC., N THE COURT OF COMM ON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. COAL CITY COB COMPANY, NC. and CIVIL ACTION- LAVA/ ROGER GARCIA, Defendants JURY DEMANDED NOTICIA LE HAN DENLkNUO A LISTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en [as paginas siguientes, usted Lien viente(20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia excrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones a Ias demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO 11MiV1EDIATEMENTE. SI NO TIENE ABOG.4DO O ST vO TIENE EL DINERO SUFICTENTE DE PAGAR TAL SERVICIO, BAYA EN PERSONA O LLAINIE POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUII2 ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. COAL CITY COB COMPANY, INC. and CIVIL ACTION - LAW ROGER GARCIA, Defendants JURY DEMANDED COMPLAINT NOW COMES, Plaintiff Pyle Transport Services, Inc. by and though its attorneys, MARCELLO & KIVISTO, LLC, and files this Complaint against Defendants and in support thereof avers as follows: I. Plaintiff Pyle Transport Services, Inc. is a Pennsylvania Corporation with a business address located at 650 Westtown Road, P.O. Box 564, West Chester, Chester County, Pennsylvania 19381. 2. Defendant Roger Garcia is an adult individual with a residence at 9128 McArthur Court, Totar, Hood County,TX 76476. 3. Defendant Coal City Cob Company, Inc. (hereinafter"Coal City"), is an-Illinois corporation with a place of business located at 195 N. Will Road, Box 122, Coal City, Grundy County, Illinois 60416. 4. At all times relevant hereto, Defendant Garcia was the agent,employee, and/or representative of Defendant Coal City. 5. At all times relevant hereto, the vehicle operated by Defendant Garcia was owned by Defendant Coal City and operated pursuant to Defendant Coal City's operating authority and subject to the duties and obligations arising from said authority. 6. On or about October 17,2011 at approximately 11:00 a.m. Plaintiff's vehicle was traveling on Interstate 8I North in the exit lane for the rest area in around mile marker 37 in West Pennsboro Township, Cumberland County, Pennsylvania_ 7. At said date, time and location, Defendants' vehicle was operating in the right lane of Interstate 81 North behind Plaintiff's vehicle. 8. At said date, time and location, Plaintiff's vehicle was hauling a Moffett forklift, owned by Plaintiff, on the rear of its trailer. 9. At said date, time and location, Defendants' vehicle rear-ended Plaintiffs vehicle. 10. As a result of said accident, Plaintiff suffered damages to its trailer and Moffett forklift and loss of use of its trailer and forklift. COUNT I PYLE TRANSPORT SERVICES, INC, v.ROGER GA.RCIA NEGLIGENCE 11. Plaintiff incorporates by reference Paragraphs 1 through 10 above herein as if set forth in full. 12. The accident was a result of the carelessness, negligence and recklessness of Defendant Garcia, as follows: a. Following too closely; b. Failing to keep a proper lookout; C. Driving at an unsafe speed; d. Failing to keep his vehicle under control; e. Failing to operate his vehicle in a safe and prudent manner so as to avoid striking Plaintiffs vehicle in the rear; f. Failing to operate his vehicle in a proper, lawful and safe manner; g. Operating his vehicle in a reckless and/or inattentive manner; h. Operating his vehicle in violation of 75 Pa.C.S.A. §§ 3361, 3309 and 3714; i. Failing to operate his vehicle in a manner so as to avoid striking Plaintiffs vehicle in the rear. j. Failing to obey the applicable federal, state and/or local laws and/or regulations with regard to the operation of his vehicle; k. was otherwise careless, negligent and/reckless under the circumstances. 13. As a result of the aforesaid carelessness, negligence and recklessness of Defendant Garcia, Plaintiff s trailer and forklift sustained damages and expenses in the amount of$13,903.40 plus loss of use thereof. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of$13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. COUNT 11 PYLE TRANSPORT SERVICES, INC. v. COAL CITY COB COMPANY, L 1C. VICARIOUS LIABILITY 14. Plaintiff incorporates Paragraphs I through 13 above herein as if set forth in full. 15. The Defendant Coal City, as the employer and/or principal of Defendant Garcia, is vicariously liable for the negligence, carelessness and/or recklessness of its agent, employee and/or representative Defendant Garcia. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of$1 3,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. COUNT III PYLE TRA INSPORT SERVICES LNC. v. COAL CITY COB COMPANY,LYC. NEGLIGENT ENTRUSTMENT 16. Plaintiff incorporates Paragraphs 1 through 15 above herein as if set forth in full. 17. This accident was the result of the Defendant Coal City's negligent entrustment of its vehicle to Defendant Garcia as Defendant Coal City knew or should have known that Defendant Garcia had a propensity to drive in a careless, negligent or reckless manner 18. As a result of Defendant Coal City's negligent entrustment, Plaintiff suffered damages to its trailer and forklift in the amount of$13,903.40, plus loss of use. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of$13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. Respectfully Submitted, NIARCELLO & I<MSTO, LLC Date: 3 By: � Douglas B. Marcello, Esq. ( .D. No. 36510) Angela N. Rainey, Esq. (I.D. No. 207168) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240-4686 F: (717) 258-4686 Attorneys for Plaintiff Pyle Transport Services, Inc. PYLE ?R\.�\ISP(.DR T S=RVICES, NC._, lit THE COURT OF CONINIOiti PLEAS Plaintiff CUN[BER A-\-,D C0UNC-1 PENNSYLVANIA V. Flo. CORE CITY COB COMPANY, INC. and CM--, ACTION, - LAW ROGER GARCLA, Defendants : JURY DEKA2, QED VER1MCATIO`i I. Timothy Hurford, hereby verify that the averments mace in d-e attached docurnent are tme and correct to the hest of rL.v ir"onnation, knowied,e and belief based uoor. the informatior_ available. I ,.mdenuad t,`tat false statements herein are made subject to dLe per:alties of 18 Pa.C.S..A. Semi,=: 490—,' relating to i,<nswo:. `a':sil?cation to authorcties. 3v: Dated: . r MARCELLO KnRSTO, LLC M&K WWW.CDL-LAW.COM 1200 WALNUT BOTTOM ROAD THIRD FLOOR, SUITE 331 CARLISLE, PA 17015 T: (717)240.4686 F: (71 7)258-4686 Angela Rainev (717)240-4686 arainevCcdf-law.cam June 17,2013 Coal City Cob Company,Inc. 195 N.Will Road Box 122 Coal City, Illinois 60416 RE: Pyle Transport Services, Inc, v Coal City Cob Company,Inc.,et al, Complaint Dear Sir/Madam, Please find enclosed a certified copy of a Complaint that was filed against you in the Cumberland County Court of Common Pleas. Please note, if you fail to respond to this Complaint you may lose valuable rights. If you have any questions or concerns,please do not hesitate to call or write. Best Regards Angela N.Rainey,Esq. Marcello& Kivisto,LLC CERTIFICATE OF SERVICE I, James DeCinti, Esquire, hereby certify that a true and correct copy of the foregoing Preliminary Objections to Plaintiffs' Complaint was served upon counsel of record by Electronic Mail,this 15th day of August 2013, as follows: Angela N. Rainey, Esquire Marcello &Kivisto, LLC 1200 Walnut Bottom Road Thrid Floor, Suite 331 Carlisle, PA 17015 arainey@cdl-law.com Counsel for Plaintiff P YLE TRANSPORT SERVICES, INC. PION, JOHNSTON,NERONE, GIRMAN, CLEMENTS & SMITH, P.C. By ry James DeCinti, Esquire Counsel for Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA PRAECIPE FOR LISTING CASE FOR ARGUMENT c-y (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for,: nextP �,-;-,M: Argument Court.) r��t: -------------------------------------------------------------------------------------------------------------------- u CAPTION OF CASE -Z- (entire caption must be stated in full) G j , Pyle Transport Services Inc. =C) vs. 0 Coal City Cob Company, Inc. and Garcia No. 2895 2013 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants'Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Angela N. Rainey, Esq. Marcello & Kivisto LLC (Name and Address) 1200 Walnut Bottom Road, 3rd Fl. Carlisle, PA 17105 (b) for defendants: James DeCinti, Esq./Deborah Cavacini, Esq. Pion Law (Name and Address) 355 North 21st Street, Suite 102 Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signature e � Prin your name James DeCinti - Attorney for be�er-- p`f,\-k Date: INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) before argument. 2.The moving party shall file and serve their brief 14 days prior to argument. 3.The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. Ck- /0 V* Qq N bet: PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEA Plaintiff CUMBERLAND COUNTY,.PENNWM� ANTA V. No. 13-2895-Civil COAL CITY COB COMPANY, INC. and CIVIL ACTION - LAW ° =6 - Z C-) ROGER GARCIA, Defendants JURY DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS NOW COMES, Plaintiff Pyle Transport Services, Inc. by and through its attorneys, MARCELLO & KIVISTO, LLC, and files this Response to Defendants' Preliminary Objections and in support thereof avers as follows: 1. Admitted. 2. Denied. The averments of said paragraph are denied as stated. Plaintiff's Complaint is a document which speaks for itself. 3. Denied. The averments of said paragraph are denied as stated. Plaintiff's Complaint is a document which speaks for itself. 4. Admitted in Part and Denied in part. It is admitted that Plaintiff's trailer and forklift were damaged as a result of the accident. The remaining averments of said paragraph are denied as stated. Plaintiff's Complaint is a document which speaks for itself. 5. Admitted. 6. Admitted. 7. The averments of said paragraph are of a nature that do not require a response. 8. Denied. The averments of said paragraph are denied as stated. It is denied that Defendants' Preliminary Objections are necessary. 9. Denied. The averments of said paragraphs are conclusions of law to which no response is necessary. To the extent a response is deemed necessary said averments are denied as stated. I. RESPONSE TO PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER AND/OR MOTION TO STRIKE ALL PUNITIVE DAMAGES CLAIMS 10. Admitted. 11. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff s Complaint is a document which speaks for itself. 12. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff s Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiffs forklift and trailer. 13. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff s forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Further allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 14. Denied. The averments of said paragraphs are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Pennsylvania Rule of Civil Procedure Rule 1028(a)(4) states, "[p]reliminary objections may be filed by any party to any pleading and are limited to the following grounds...legal insufficiency of a pleading(demurrer)." Pa.R.Civ.P. 1028(a)(4). 15. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff's forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Further allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 16. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiffs forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Further allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 17. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff's forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Further allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 18. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff s forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Further allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule Defendants' Preliminary Objection in the nature of a Demurrer. II. RESPONSE TO PRELIMINARY OBJECTION PURSUANT TO RULE 1028(a)(2) 19. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Pennsylvania Rule of Civil Procedure Rule 1019(a) states, "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P. 1019(a). 20. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Pennsylvania Rule of Civil Procedure Rule 1028(a)(2) states, "[p]reliminary objections may be filed by any party to any pleading and are limited to the following grounds...failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter." Pa.R.Civ.P. 1028(a)(2). 21. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff's forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 22. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff's forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 23. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff's forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). 24. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's Complaint contains allegations that Defendant was inattentive while operating a vehicle that was following too closely and operating said vehicle in violation of Secs. 3361 (relating to unsafe speed), 3309 (relating to lane changes) and 3714 (relating to careless driving) of the Vehicle Code causing it to collide with the rear of Plaintiff's forklift and trailer. Taken together these actions constitute reckless and/or outrageous conduct on the part of Defendant Garcia. Allegations regarding a party's state of mind like recklessness only need to be made generally. Pa.R.Civ.P. 1019(b). WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule Defendants' Preliminary Objections in the nature of a Motion to Strike. III. RESPONSE TO PRELIMINARY OBJECTION—MOTION TO STRIKE PURSUANT TO PA.R.CIV.P. 1028(a)(3) INSUFFICIENT SPECIFICITY OF A PLEADING 25. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated and Plaintiff's Complaint is sufficiently specific and satisfies the requirements of Pa.R.Civ.P. Rule 1019. 26. Admitted in part in Denied in part. It is admitted that Defendants object to Paragraphs 120) and 12(k). It is denied that said paragraphs are objectionable. 27. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated and Plaintiff's Complaint is sufficiently specific and meets the requirements of Pa.R.Civ.P. Rule 1019. 28. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Plaintiff's averments are sufficiently specific. Plaintiff has alleged that Defendant Garcia was negligent, careless and/or reckless in the operation of his motor vehicle. Paragraphs 120) and 12(k)reference other duties in the operation of his motor vehicle. Further, Plaintiff s legal theory of the case is that the Defendant Garcia was negligent, careless and/or reckless in the operation of his motor vehicle causing damages to Plaintiff's forklift and vehicle this will not change. Legal theory is defined as"the principle under which a litigant proceeds, or on which a litigant bases its claims or defenses in a case." Steiner v. Markel, 600 Pa. 515, 526 (2008) (citing BLACK'S LAW DICTIONARY 907 (7h Ed. 1999). 29. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied as stated. Further, Plaintiff's legal theory of the case is that the Defendant Garcia was negligent, careless and/or reckless in the operation of his motor vehicle causing damages to Plaintiff's forklift and vehicle this will not change. Legal theory is defined as"the principle under which a litigant proceeds, or on which a litigant bases its claims or defenses in a case." Steiner v. Markel, 600 Pa. 515, 526 (2008) (citing BLACK'S LAW DICTIONARY 907 (7th Ed. 1999). 30. Admitted in part and Denied in part. It is admitted that footnote 3 of Connor v. Allegheny General Hospital,461 A.2d 600(Pa. 1983) states, "if appellee did not know how it otherwise failed to use due care under the circumstances, it could have filed preliminary objections in the nature of a request for a more specific pleading, or it could have moved to strike that portion of appellant's Complaint." To the extent it is implied by Defendants that preliminary objections are appropriate in this instance, the averments are denied. 31. Denied. The averments of said paragraph are conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, said averments are denied as stated and Plaintiff's Complaint is sufficiently specific and satisfies the requirements of Pa.R.Civ.P. Rule 1019. WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule Defendants' Preliminary Objections. Respectfully Submitted, MARCELLO & HIV TO,LLC Date: 3 /3 By: Douglas/B. Marcello, Esq. (UV No. 36510) Angela N. Rainey, Esq. (I.D. No. 207168) Mareello & Kivisto,LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240-4686 F: (717) 258-4686 Attorneys for Plaintiff Pyle Transport Services, Inc. PYLE TRANSPORT SERVICES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 13-2895 Civil COAL CITY COB COMPANY, INC. and CIVIL ACTION - LAW ROGER GARCIA, Defendants JURY DEMANDED CERTIFICATE OF SERVICE I certify that Plaintiff's Response to Defendants'Preliminary Obejetions in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 3rd day of September,2013. James DeCinti, Esq. Pion, Nerome, Girman, Winslow & Smith,P.C. 355 North 21St Street, Suite 102 Camp Hill, PA 17011 Angela . Rainey, Esq. #21 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA ) V. • •L7 c�� r� •COAL CITY COB COMPANY, INC.AND : NO. 2013—2895 CIVIL TERM ROGER GARCIA, ?' Defendant • = IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE GUIDO, MASLAND, PLACEY,JJ. ORDER OF COURT AND NOW,this 11Th day of OCTOBER, 2013, upon review of Defendants' Preliminary Objections they are SUSTAINED insofar as they relate to paragraph 12 (k)of the complaint,which paragraph is STRICKEN. In all other respects the Preliminary Objections are OVERRULED.' By the • Edward E. Guido,J. NGELA N. RAINEY, ESQUIRE 1200 WALNUT BOTTOM ROAD THIRD FLOOR,SUITE 331 CARLISLE, PA 17013 "(AMES DECINTI, ESQUIRE DEBORAH CAVACINI, ESQUIRE 355 NORTH 21sT STREET SUITE 102 CAMP HILL, PA 17011 COURT ADMINISTRATO — ptueqa, tE 1 141/02 We cannot state with certainly at this stage that punitive damages are not appropriate. Once the record has been more fully developed,a motion for summary judgment on the issue might be appropriate. We would support defendants'refusal to provide any discovery regarding their finances until we have had the opportunity to address this issue on a more fully developed record. w.� s'.......:.. 111 0 N�� Itil I wUt"� E L D C 0 U N T Y t D6SYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13-2895-CIVIL V. ANSWER WITH NEW MATTER AND CROSSCLAIM COAL CITY COB COMPANY, INC. AND ROGER GARCIA Filed on behalf of Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA Defendants. Counsel of record for these parties: NOTICE TO PLEAD John T. Pion, Esquire TO: Counsel PA I.D. #43675 You are hereby notified to file a written James DeCinti, Esquire response to the enclosed Answer and New PA I.D. #PA 77421 Matter to Plaintiffs Complaint and New Matter Cross Claim within twenty (20) days PION, NERONE, GIRMAN, WINSLOW& from the date of service hereof or a SMITH, P.C. judgment may be entered against you 1500 One Gateway Center Pittsburgh, PA 15222 (412) 281-2281 By JURY TRIAL DEMANDED ames DeCinti, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13-2895-CIVIL V. COAL CITY COB COMPANY, INC. AND ROGER GARCIA, Defendants. DEFENDANTS' ANSWER WITH NEW MATTER AND CROSS CLAIM TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA, by and through their attorneys, PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C., and James DeCinti, Esquire, and hereby file the instant Answer and New Matter to Plaintiff's Complaint, averring as follows: 1. The information in this paragraph is admitted based on information and belief. 2. Admitted. 3. Admitted. 4. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 5. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 6. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 7. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 8. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 9. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 10. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. COUNT PYLE TRANSPORT SERVICES,INC. V. ROGER GARCIA NEGLIGENCE 11. Defendants incorporate their responses to paragraphs 1 through 10 as if set out in full. 12. (a)-(j) The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. By way of further answer,the allegation contained in paragraph 12(k) was stricken by Order of the Court of Common Pleas of Cumberland County dated October 11, 2013 granting Defendants' Preliminary Objection. 13. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, together with all allowable costs and attorney's fees. 2 COUNT II PYLE TRANSPORT SERVICES, INC. V COAL CITY COB COMPANY,INC. VICARIOUS LIABILITY 14. Defendants incorporate their responses to paragraphs 1 through 13 as if set out in full. 15. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor,together with all allowable costs and attorney's fees. COUNT III PYLE TRANSPORT INC. V. COAL CITY COB COMPANY, INC. NEGLIGENCE ENTRUSTMENT 16. Defendants incorporate their response to paragraphs 1 through 15 as if set out in full. 17. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 18. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, together with all allowable costs and attorney's fees. 3 NEW MATTER 19. Paragraphs 1 through 18 of the Answer are incorporated herein by reference as if fully set out at length. 20. The allegations of"reckless" conduct and "recklessness" are inappropriate where the facts contained in the Complaint allege a rear-end motor vehicle accident and the alleged damages are limited to property damage sustained by a Plaintiff corporation. 21. Answering Defendants plead as an affirmative defense, to the extent the evidence demonstrates,that this action is barred by the statute of limitations. 22. Answering Defendants plead as an affirmative defense each and every affirmative defense as stated in Pennsylvania Rule of Civil Procedure 1030. 23. Answering Defendants plead as an affirmative defense that the Complaint fails to state a claim upon which relief can be granted. 24. The damages averred in the Complaint were caused or contributed to by the acts, omissions and/or other culpable conduct of a party, person and/or entity over which the Answering Defendants had no right or duty to control and for which Answering Defendants cannot be held liable. 25. The damages averred in the Complaint were caused or contributed to by the intervening, superseding acts, omissions, and/or other culpable conduct of a party, person and/or entity over which Answering Defendants had no right or duty to control and for which Answering Defendants cannot be held liable. 26. Answering Defendants raise any other affirmative defense which may become 4 applicable during the course of discovery in this matter. 27. At all times material hereto Answering Defendants acted reasonably, properly and prudently under the circumstances then and there existing. 28. The alleged negligence of Answering Defendants, since negligence being specifically denied, was not the proximate cause or factual cause of the damages alleged by Plaintiff, if any. 29. The Plaintiff at all times material hereto, was guilty of contributory and or comparative negligence said negligence being the proximate and factual cause of the damages alleged in this Complaint, if any are proven, and such negligence of Plaintiff constitutes a complete bar to all of the claims in this Complaint. 30. Plaintiff has failed to mitigate its damages. 31. Punitive damages are not recoverable in a property damage claim. 32. Plaintiffs driver caused the accident by darting back into the lane of a major interstate highway. CROSS CLAIM 33. Paragraphs 1 through 32 of the Answer are incorporated herein by reference as if fully set out at length. 34. Plaintiffs driver, employee, servant and or agent, David Myles, was negligent in the operation of Plaintiffs vehicle and caused the accident. 35. As a result of the negligence of Plaintiffs driver, Defendant suffered property damage in the amount of$52,948.47, and claim is made therefore. 5 36. As a result of the negligence of Plaintiffs driver, Defendant suffered loss of use damage, and claim is made therefore. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor,together with all allowable costs and attorney's fees. Date: I'OAI /1'? Respectfully Submitted, PION, NER NE, GIRMAN, WINSLOW, and SMIT P.0 B Y K�e? James DeCinti, Esquire PA I.D. PA 77421 John T. Pion, Esquire PA I.D. #43675 355 North 21St Street, Suite 102 Camp Hill, PA 17011 717-737-5833 idecinti@pionlaw.com Counsel for Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA 6 VERIFICATION I, James DeCinti, Esquire, verify that the facts set forth in the ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND CROSS CLAIM are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. I am authorized to make this verification on behalf of Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA. James DeCinti, Esquire DATED: C� 3 CERTIFICATE OF SERVICE I, James DeCinti, Esquire, hereby certify that a true and correct copy of the foregoing Answer and New Matter to Plaintiffs Complaint was served upon counsel of record by �1 Electronic Mail,this 3�1ay of October, 2013, as follows: Angela N. Rainey, Esquire Marcello &Kivisto, LLC 1200 Walnut Bottom Road Thrid Floor, Suite 331 Carlisle, PA 17015 arainey@cdl-law.com Counsel for Plaintiff PYLE TRANSPORT SERVICES, INC. PION,NERONE, GIRMAN, WINSLOW & SMITH, P.C. By James DeCinti, Esquire PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION- LAW ROGER GARCIA, Defendants : JURY DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty(20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff You may lose money or property or other rights import 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 YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 -p3 a; wa rricO i C ..'C) n _�Cs c} PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED NOTICIA LE HAN DEMANDO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes,usted tien viente(20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia excrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, BAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895-CIVIL COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED PLAINTIFF'S REPLY TO NEW MATTER AND CROSS CLAIM WITH NEW MATTER NOW COMES, Plaintiff Pyle Transport Services, Inc. by and through its attorneys, MARCELLO & KIVISTO, LLC, and files this Reply to New Matter and Cross Claim with New Matter and in support thereof avers as follows: REPLY TO NEW MATTER 19. Plaintiff incorporates its Complaint herein by reference as if set forth in full. 20. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 21. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 22. Denied. The averments of said paragraph are denied as conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 23. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 24. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 25. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 26. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. Further,pursuant to Pa.R.Civ.P. Rule 1030, any affirmative defense not specifically plead in New Matter shall be deemed waived. 27. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 28. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 29. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 30. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 31. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 32. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully requests this Honorable Court find in its favor and against Defendants. REPLY TO CROSS CLAIM 33. Plaintiff incorporates its Complaint and Paragraphs 19 through 32 above herein as if set forth in full. 34. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied, denied as stated, denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 35. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, Plaintiff is without information or belief as to the truth of the averments,hence they are denied, denied as stated, denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 36. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, Plaintiff is without information or belief as to the truth of the averments hence they are denied, denied as stated, denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its favor and against Defendants. NEW MATTER TO CROSS CLAIM 37. Plaintiff incorporates by reference its Complaint and Paragraphs 19 through 36 above herein as if set forth in full. 38. Some or all of Defendant's claims may be barred or reduced by the provisions of the Pennsylvania Financial Responsibility Law. 39. Some or all of Defendant's claims may be barred by the applicable Statute of Limitations. 40. Some or all of Defendant's claims may be barred or reduced by Defendant's contributory and/or comparative negligence. 41. Some or all of Defendant's claims may be barred or reduced by Defendant's employee's, agent's, servant's and/or representative's contributory and/or comparative negligence for which Defendant is vicariously liable. 42. Plaintiff is not responsible for any harm allegedly caused by acts or omissions of third parties for whom they are not responsible and over whom they have no control. 43. Plaintiff is not responsible for any harm allegedly caused due the sudden emergency doctrine. 44. Some or all of Defendant's claims maybe barred due to accord and satisfaction. 45. Some or all of Defendant's claims may by barred due to release. 46. Some or all of Defendant's claims may be barred by res judicata and/or collateral estoppel. 47. Defendant's Cross Claim fails to state a claim upon which relief can be granted. 48. No omissions or conduct on the part of Plaintiff contributed to Defendant's alleged damages, if any. 49. Defendant has failed to mitigate its alleged damages. 50. The damages complained of by Defendant preexisted, or are unrelated to the accident which is the subject matter of Plaintiff's Complaint. 51. Plaintiff at all times acted with due and proper care and in a non-negligent fashion. 52. Any act and/or omission of Plaintiff's agents, servants, workmen and/or employees allegedly constituting negligence, said acts being specifically denied, were not the . i substantial cause(s) or factor(s) of the subject incident and/or did not result in any property damage and/or loss of use damages as alleged by Defendant, said damages being denied. 53. The incident and/or damages alleged to have been sustained by Defendant, said damages being specifically denied, were not proximately caused by Plaintiff. 54. The Plaintiff at all times acted in reasonable, prudent and otherwise non-negligent manner, with due and proper care under the circumstances, and in good faith. Respectfully Submitted, MARCELLO & KIVISTO, LLC / Date: // /q /3 By: L�i�. n / Douglas B. Marcello, Esq. I.D. o. 36510 g � q ( 36510) Angela N. Rainey, Esq. (I.D. No. 207168) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240-4686 F: (717) 258-4686 Attorneys for Plaintiff Pyle Transport Services, Inc. 2013-Nod+-15 09:04 PM A. Duie Pyle 610-918-9426 2/2 PYLE TRANSPORT SERVICES, INC., ; IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY,PENNSYLVANIA v. : NO. 132895-CIVIL COAL CITY COB COMPANY, INC.and : CIVIL ACTION-LAW ROGER GARCIA, Defendants : .IURY DEMANDED MIFICATION, I,Timothy kfurford,hereby verify that the averments made in the attached document are true and correct to the best of my information,knowledge and belief based upon the information available. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unworn falsification to authorities. By: - Dated: //•15:1,J C PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED CERTIFICATE OF SERVICE I certify that Plaintiff's Reply to New Matter and Cross Claim with New Matter in the within action was served upon the following by enclosing the same in an envelope addressed as follows,postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 19th day of November,2013. James DeCinti, Esq. Pion,Nerome, Girman, Winslow& Smith, P.C. 355 North 21st Street, Suite 102 Camp Hill, PA 17011 Angela N. Rainey, Esq. lJ • C? •• PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLL Plaintiff : CUMBERLAND COUNTY, PENNSYLVAA r;i v. No. 13- 2895 -Civil ``° (1; - (�: -tom C .�.. COAL CITY COB COMPANY, INC. an d : CIVIL ACTION - LAW ' ROGER GARCIA, c... Defendants : JURY DEMANDED " ' co PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS NOW COMES, Plaintiff Pyle Transport Services, Inc. by and through its attorneys, MARCELLO & KIVISTO, LLC, and files this Motion for Partial Judgment on the Pleadings and in support thereof avers as follows: 1. Plaintiff s Motion for Partial Judgment on the Pleadings should be granted and Defendants' Cross Claim should be dismissed as Defendants' Cross Claim is barred by the statute of limitations and fails to state a claim against Plaintiff. 2. On or about May 21, 2013, Plaintiff filed a Complaint seeking damages arising out of a motor vehicle accident. (See Complaint attached hereto as Exhibit "A "). 3. Plaintiff's Complaint was filed against Coal City Cob Company, Inc. and Roger Garcia. (See Exh. "A "). 4. The motor vehicle accident that is the subject of Plaintiff's Complaint occurred on October 17, 2011. (See. Exh. "A "). 5. On November 4, 2013, Defendants filed an Answer with New Matter and Cross Claim. (See Answer with New Matter and Cross Claim attached as Exhibit `B "). 6. Defendants' cross claim alleges negligence on the part of Plaintiff's driver, David Myles and seeks damages in the amount of $52,948.47. (See Exh. `B "). 7. On or about November 19, 2013, Plaintiff Pyle Transport Services, Inc. filed its Reply to Defendants' New Matter and Cross Claim with New Matter. (See Plaintiff s Reply attached hereto as Exhibit "C "). 8. Paragraph 39 of Plaintiff s Reply asserts the statute of limitations defense. (See Para. 39 of Exh. "C "). I. DEFENDANTS' CROSS CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS 9. Defendants' Cross Claim should be dismissed as it is barred by the applicable statute of limitations. 10. The underlying motor vehicle accident occurred on October 17, 2011 (See Exh. "A» 11. Pursuant to 42 Pa.C.S.A. §5524, the applicable statute of limitations to bring a claim for property damages arising from a motor vehicle accident is two (2) years. 42 Pa.C.S.A. §5524(7). 12. Defendants' Cross Claim was not filed until November 4, 2011, two (2) years and eighteen (18) days after the subject motor vehicle accident. (See Exh. `B "). 13. Defendants' Cross Claim is seeking affirmative relief in the amount of $52,948.47 for property damages allegedly suffered by Defendants as a result of the negligence of Plaintiff's driver. (See Para. 35 of Exh. `B "). 14. Defendants' Cross Claim is a claim for property damages that could have been filed at any time within the two (2) years immediately following the accident. 15. Although they arise out of the same transaction or occurrence, Defendants' Cross Claim is independent of the claims raised in Plaintiffs Complaint. 16. "[A] counterclaim provoked by the plaintiff's alleged negligence must be raised within the time allotted for an action under the appropriate statute of limitations." Harmer v. Husley, 321 Pa. Super. 11, 13, 467 A.2d 867, 869 (Pa. Super. Ct. 1983). 17. Here, Defendants' Cross Claim seeks affirmative damages based upon the alleged negligence of Plaintiff's driver and thus should have been raised within the statute of limitations. 18. Thus, Defendants' Cross Claim is barred by the applicable statute of limitations and should be dismissed. WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendants' Cross Claim. II. DEFENDANTS' CROSS CLAIM SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM 19. Defendants' Cross Claim fails to set forth facts sufficient to support a claim against A. Duie Pyle, Inc. for its alleged property damages. 20. Defendants' Cross Claim merely alleges that "Plaintiff's driver, employee, servant and or agent, David Myers, was negligent in the operation of Plaintiff's vehicle and caused the accident." (See Para. 34 of Exh. `B "). 21. David Myers is not a party to this action. 22. The allegations of Paragraph 34 of Exhibit `B" do not support a claim of vicarious liability against Plaintiff Pyle Transport Services, Inc. 23. While Paragraph 34 of Exhibit `B" alleges that David Myers was "Plaintiffs driver, employee, servant and or agent" it does not allege that David Myers was operating said vehicle in the course and scope of his employment with Plaintiff. 24. For a corporation to be vicariously liable, the acts performed by an employee, servant and/or agent must have been performed in the course and scope of their employment with the corporation. Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 395, 47 A.3d 1190, 1196 (Pa. 2012) (citing Travelers Cas. & Sur. Co. v. Castegnaro, 565 Pa. 246, 252, 772 A.2d 456, 460 (Pa. 2001)). 25. The allegations set forth in Defendants' Cross Claim merely allege negligence on the part of David Myers and do not set forth any facts which would establish negligence on the part of Plaintiff 26. As Defendants' Cross Claim has failed to state a claim upon which relief may be granted, Defendants' Cross Claim should be dismissed. WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendants' Cross Claim. Date: By: Respectfully Submitted, MARCELLO & KIVIS ezi LLC 7. Angela . Rainey, Esq. (I.D.=168) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240-4686 F: (717) 258-4686 Attorneys for Plaintiff Pyle Transport Services, Inc. EXHIBIT "A" 0 TH 0 fria TA i 3 ti Y 2 I PH 1:Q CUNI3ER1 A ND COUNT Y PENNS YL VA NIA PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.) 3 -dF6)5 ult) COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights import 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 YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 TRUE COPY FROM RECO 70 In Testimony whereof, 1 here unto set nil/ hand and the Aeal of said Court at Carliste, .1— day of Jvl,j44 , 20 le h notary ke 6_ PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED NOTICIA LE HAN DEMANDO A LISTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tien viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia excrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMIAiNDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, BAYA EN PERSONA 0 LLANLE POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249 -3166 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED COMPLAINT NOW COMES, Plaintiff Pyle Transport Services, Inc. by and through its attorneys, MARCELLO & KIVISTO, LLC, and files this Complaint against Defendants and in support thereof avers as follows: 1. Plaintiff Pyle Transport Services, Inc. is a Pennsylvania Corporation with a business address located at 650 Westtown Road, P.O. Box 564, West Chester, Chester County, Pennsylvania 19381. 2. Defendant Roger Garcia is an adult individual with a residence at 9128 McArthur Court, Totar, Hood County, TX 76476. 3. Defendant Coal City Cob Company, Inc. (hereinafter "Coal City"), is an Illinois corporation with a place of business located at 195 N. Will Road, Box 122, Coal City, Grundy County, Illinois 60416. 4. At all times relevant hereto, Defendant Garcia was the agent, employee, and /or representative of Defendant Coal City. 5. At all times relevant hereto, the vehicle operated by Defendant Garcia was owned by Defendant Coal City and operated pursuant to Defendant Coal City's operating authority and subject to the duties and obligations arising from said authority. 6. On or about October 17, 2011 at approximately 11:00 a.m. Plaintiff's vehicle was traveling on Interstate 81 North in the exit lane for the rest area in around mile marker 37 in West Pennsboro Township, Cumberland County, Pennsylvania. 7. At said date, time and location, Defendants' vehicle was operating in the right lane of Interstate 81 North behind Plaintiffs vehicle. 8. At said date, time and location, Plaintiff's vehicle was hauling a Moffett forklift, owned by Plaintiff, on the rear of its trailer. 9. At said date, time and location, Defendants' vehicle rear -ended Plaintiff's vehicle. 10. As a result of said accident, Plaintiff suffered damages to its trailer and Moffett forklift and loss of use of its trailer and forklift. COUNT I PYLE TRANSPORT SERVICES, ENC. v. ROGER GARCIA NEGLIGENCE 11. Plaintiff incorporates by reference Paragraphs 1 through 10 above herein as if set forth in full. 12. The accident was a result of the carelessness, negligence and recklessness of Defendant Garcia, as follows: a. Following too closely; b. Failing to keep a proper lookout; c. Driving at an unsafe speed; d. Failing to keep his vehicle under control; e. Failing to operate his vehicle in a safe and prudent manner so as to avoid striking Plaintiff's vehicle in the rear; f. Failing to operate his vehicle in a proper, lawful and safe manner; g. Operating his vehicle in a reckless and/or inattentive manner; h. Operating his vehicle in violation of 75 Pa.C.S.A. §§ 3361, 3309 and 3714; i. Failing to operate his vehicle in a manner so as to avoid striking Plaintiff's vehicle in the rear. Failing to obey the applicable federal, state and/or local laws and/or regulations with regard to the operation of his vehicle; k. was otherwise careless, negligent and/ reckless under the circumstances. 13. As a result of the aforesaid carelessness, negligence and recklessness of Defendant Garcia, Plaintiff's trailer and forklift sustained damages and expenses in the amount of $13,903.40 plus loss of use thereof. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of $13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. j. COUNT II PYLE TRANSPORT SERVICES, INC. v. COAL CITY COB COMPANY, INC. VICARIOUS LIABILITY 14. Plaintiff incorporates Paragraphs 1 through 13 above herein as if set forth in full. 15. The Defendant Coal City, as the employer and/or principal of Defendant Garcia, is vicariously liable for the negligence, carelessness and/or recklessness of its agent, employee and/or representative Defendant Garcia. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of $13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. COUNT III PYLE TRANSPORT SERVICES, INC. v. COAL CITY COB COMPANY, INC. NEGLIGENT ENTRUSTMENT 16. Plaintiff incorporates Paragraphs 1 through 15 above herein as if set forth in full. 17. This accident was the result of the Defendant Coal City's negligent entrustment of its vehicle to Defendant Garcia as Defendant Coal City knew or should have known that Defendant Garcia had a propensity to drive in a careless, negligent or reckless manner 18. As a result of Defendant Coal City's negligent entrustment, Plaintiff suffered damages to its trailer and forklift in the amount of $13,903.40, plus loss of use. WHEREFORE, Plaintiff respectfully requests this Honorable Court award damages in the amount of $13,903.40 plus loss of use, together with other damages, costs and expenses recoverable in this case. Date: Respectfully Submitted, • MARCELLO & KIVISTO, LLC By: ®� Douglas 13. Marcello, Esq. (.D. No. 36510) Angela N. Rainey, Esq. (I.D. No. 207168) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240 -4686 F: (717) 258 -4686 Attorneys for Plaintiff Pyle Transport Services, Inc. PYLE TRANSPORT SERVICES, INC., Plaintiff v. •Innodo...amer../s0 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA • : No. COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, • Defendants : JURY DEMANDED VERIFICATION I, Timothy flurford, hereby verify that the averments made in the attached document are true and correct to the best of ray irlom.iation, knowledge and belief based upon the infornadon available. 1 r.mclerstand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to =sworn falsification to authorities. EXHIBIT "B" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., Plaintiff, v. COAL CITY COB COMPANY, INC. AND ROGER GARCIA Defendants. NOTICE TO PLEAD TO: Counsel You are hereby notified to file a written response to the enclosed Answer and New Matter to Plaintiff's Complaint and New Matter Cross Claim within twenty (20) days from the date of service hereof or a judgment may be entered against you By ames DeCinti, Esquire CIVIL DIVISION 13- 2895 -CIVIL ANSWER WITH NEW MATTER AND CROSSCLAIM Filed on behalf of Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA Counsel of record for these parties: John T. Pion, Esquire PA I.D. # 43675 James DeCinti, Esquire PA I.D. # PA 77421 PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C. 1500 One Gateway Center Pittsburgh, PA 15222 (412) 281 -2281 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13-2895-CIVIL v. COAL CITY COB COMPANY, INC. AND ROGER GARCIA, Defendants. DEFENDANTS' ANSWER WITH NEW MATTER AND CROSS CLAIM TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA, by and through their attorneys, PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C., and James DeCinti, Esquire, and hereby file the instant Answer and New Matter to Plaintiff's Complaint, averring as follows: 1 The information in this paragraph is admitted based on information and belief. 2. Admitted. 3, Admitted. 4. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 5. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 6. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 7. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. $_ The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 9. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 10. The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. COUNTI PYLE TRANSPORT SERVICES, INC. V. ROGER GARCIA NEGLIGENCE 11. Defendants incorporate their responses to paragraphs 1 through 10 as if set out in full. 12. (a) -(j) The allegations contained in this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. By way of further answer, the allegation contained in paragraph 12(k) was stricken by Order of the Court of Common Pleas of Cumberland County dated October 11, 2013 granting Defendants' Preliminary Objection. 13. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, together with all allowable costs and attorney's fees. 2 COUNT II PYLE TRANSPORT SERVICES, INC. V COAL CITY COB COMPANY, INC. VICARIOUS LIABILITY 14. Defendants incorporate their responses to paragraphs 1 through 13 as if set out in full. 15. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, together with all allowable costs and attorney's fees. COUNT III PYLE TRANSPORT INC. V. COAL CITY COB COMPANY, INC. NEGLIGENCE ENTRUSTMENT 16. Defendants incorporate their response to paragraphs 1 through 15 as if set out in full. 17. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. 18. Denied as a conclusion of law and denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e) and strict proof is demanded at the time of trial. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, together with all allowable costs and attorney's fees. 3 NEW MATTER 19. Paragraphs 1 through 18 of the Answer are incorporated herein by reference as if fully set out at length. 20. The allegations of "reckless" conduct and "recklessness" are inappropriate where the facts contained in the Complaint allege a rear -end motor vehicle accident and the alleged damages are limited to property damage sustained by a Plaintiff corporation. 21. Answering Defendants plead as an affirmative defense, to the extent the evidence demonstrates, that this action is barred by the statute of limitations. 22. Answering Defendants plead as an affirmative defense each and every affirmative defense as stated in Pennsylvania Rule of Civil Procedure 1030. 23. Answering Defendants plead as an affirmative defense that the Complaint fails to state a claim upon which relief can be granted. 24. The damages averred in the Complaint were caused or contributed to by the acts, omissions and /or other culpable conduct of a party, person and/or entity over which the Answering Defendants had no right or duty to control and for which Answering Defendants cannot be held liable. 25. The damages 'averred in the Complaint were caused or contributed to by the intervening, superseding acts, omissions, and/or other culpable conduct of a party, person and/or entity over which Answering Defendants had no right or duty to control and for which Answering Defendants cannot be held liable. 26. Answering Defendants raise any other affirmative defense which may become 4 applicable during the course of discovery in this matter. 27. At all times material hereto Answering Defendants acted reasonably, properly and prudently under the circumstances then and there existing. 28. The alleged negligence of Answering Defendants, since negligence being specifically denied, was not the proximate cause or factual cause of the damages alleged by Plaintiff, if any. 29. The Plaintiff at all times material hereto, was guilty of contributory and or comparative negligence said negligence being the proximate and factual cause of the damages alleged in this Complaint, if any are proven, and such negligence of Plaintiff constitutes a complete bar to all of the claims in this Complaint. 30. Plaintiff has failed to mitigate its damages. 31. Punitive damages are not recoverable in a property damage claim. 32. Plaintiffs driver caused the accident by darting back into the lane of a major interstate highway. CROSS CLAIM 33. Paragraphs 1 through 32 of the Answer are incorporated herein by reference as if fully set out at length. 34. Plaintiffs driver, employee, servant and or agent, David Myles, was negligent in . the operation of Plaintiffs vehicle and caused the accident. 35. As a result of the negligence of Plaintiffs driver, Defendant suffered property damage in the amount of $52,948.47, and claim is made therefore. 5 36. As a result of the negligence of Plaintiffs driver, Defendant suffered Loss of use damage, and claim is made therefore. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, together with all allowable costs and attorney's fees. Date: io gl //3 6 Respectfully Submitted, PION, NER NE, GIRMAN, WINSLOW, and SMIT P.0 By 7/4/Cr !/ James DeCinti, Esquire PA I.D. PA 77421 John T. Pion, Esquire PA I.D. # 43675 355 North 21St Street. Suite 102 Camp Hill, PA 17011 71 7- 737 -5833 jdecinti@pionlaw.com Counsel for Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA VERIFICATION I, James DeCinti, Esquire, verify that the facts set forth in the ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND CROSS CLAIM are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, 1 may be subject to criminal penalties. I am authorized to make this verification on behalf of Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA. DATED: 1111 James DeCinti, Esquire CERTIFICATE OF SERVICE I, James DeCinti, Esquire, hereby certify that a true and correct copy of the foregoing Answer and New Matter to Plaintiffs Complaint was served upon counsel of record by Electronic Mail, this 3 day of October, 2013, as follows: Angela N. Rainey, Esquire Marcello & Kivisto, LLC 1200 Walnut Bottom Road Thrid Floor, Suite 331 Carlisle, PA 17015 arainey@cdl-law.com Counsel for Plaintiff PYLE TRANSPORT SERVICES, INC_ PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C. James DeCinti, Esquire EXHIBIT "C" PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, • Defendants : JURY DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights import 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 YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 t1D Xv. 7.3C —4 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13 -2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED NOTICIA LE HAN DEMANDO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tien viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia excrita o en persona o por abogado y archivar en la corte en forma excrita sus defenses o sus objeciones a las demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, BAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249 -3166 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13- 2895 -CIVIL COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED PLAINTIFF'S REPLY TO NEW MATTER AND CROSS CLAIM WITH NEW MATTER NOW COMES, Plaintiff Pyle Transport Services, Inc. by and through its attorneys, MARCELLO & KIVISTO, LLC, and files this Reply to New Matter and Cross Claim with New Matter and in support thereof avers as follows: REPLY TO NEW MATTER 19. Plaintiff incorporates its Complaint herein by reference as if set forth in full. 20. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 21. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 22. Denied. The averments of said paragraph are denied as conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 23. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 24. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 25. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 26. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. Further, pursuant to Pa.R.Civ.P. Rule 1030, any affirmative defense not specifically plead in New Matter shall be deemed waived. 27. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 28. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 29. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 30. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 31. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 32. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is deemed required, said averments are denied, denied as stated and denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully requests this Honorable Court find in its favor and against Defendants. REPLY TO CROSS CLAIM 33. Plaintiff incorporates its Complaint and Paragraphs 19 through 32 above herein as if set forth in full. 34. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, said averments are denied, denied as stated, denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 35. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, Plaintiff is without information or belief as to the truth of the averments, hence they are denied, denied as stated, denied pursuant to Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. 36. Denied. The averments of said paragraph are denied as conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, Plaintiff is without information or belief as to the truth of the averments hence they are denied, denied as stated, denied pursuant to.Pa.R.Civ.P. Rule 1029(e) and proof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its favor and against Defendants. NEW MATTER TO CROSS CLAIM 37. Plaintiff incorporates by reference its Complaint and Paragraphs 19 through 36 above herein as if set forth in full. 38. Some or all of Defendant's claims may be barred or reduced by the provisions of the Pennsylvania Financial Responsibility Law. 39. Some or all of Defendant's claims may be barred by the applicable Statute of Limitations. 40. Some or all of Defendant's claims may be barred or reduced by Defendant's contributory and/or comparative negligence. 41. Some or all of Defendant's claims may be barred or reduced by Defendant's employee's, agent's, servant's and/or representative's contributory and/or comparative negligence for which Defendant is vicariously liable. 42. Plaintiff is not responsible for any harm allegedly caused by acts or omissions of third parties for whom they are not responsible and over whom they have no control. 43. Plaintiff is not responsible for any harm allegedly caused due the sudden emergency doctrine. 44. Some or all of Defendant's claims may be barred due to accord and satisfaction. 45. Some or all of Defendant's claims may by barred due to release. 46. Some or all of Defendant's claims may be barred by res judicata and/or collateral estoppel. 47. Defendant's Cross Claim fails to state a claim upon which relief can be granted. 48. No omissions or conduct on the part of Plaintiff contributed to Defendant's alleged damages, if any. 49. Defendant has failed to mitigate its alleged damages. 50. The damages complained of by Defendant preexisted, or are unrelated to the accident which is the subject matter of Plaintiff s Complaint. 51. Plaintiff at all times acted with due and proper care and in a non-negligent fashion. 52. Any act and/or omission of Plaintiff s agents, servants, workmen and/or employees allegedly constituting negligence, said acts being specifically denied, were not the substantial cause(s) or factor(s) of the subject incident and/or did not result in any property damage and/or loss of use damages as alleged by Defendant, said damages being denied. 53. The incident and/or damages alleged to have been sustained by Defendant, said damages being specifically denied, were not proximately caused by Plaintiff. 54. The Plaintiff at all times acted in reasonable, prudent and otherwise non-negligent mariner, with due and proper care under the circumstances, and in good faith. Respectfully Submitted, MARCELLO & KIVISTO, LLC Date: By: 12.II77 Wr.../ Douglas B. Marcello, Esq. (I.D. (o. 36510) Angela N. Rainey, Esq. (1.D. No. 207168) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 1015 T: (717) 240-4686 F: (717) 258-4686 Attorneys for Plaintiff Pyle Transport Services, Inc. 2013-Ncv-15 09:04 PM A. Due Pyle 610-918-9426 2/2 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 13-2895-CIVIL COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants XURY DEMANDED VERIFICATION 1, Timothy Eturford, hereby verify that the averments made in the attached document are true and correct to the best of my information, knowledge and belief based upon the information available. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED CERTIFICATE OF SERVICE I certify that Plaintiff's Reply to New Matter and Cross Claim with New Matter in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 19th day of November, 2013. James DeCinti, Esq. Pion, Nerome, Girman, Winslow & Smith, P.C. 355 North 21st Street, Suite 102 Camp Hill, PA 17011 (2 0171, Angela N, Rainey, Esq. PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED CERTIFICATE OF SERVICE I certify that Plaintiff's Motion for Partial Judgment on the Pleadings in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 7th day of March, 2014. James DeCinti, Esq. Pion, Nerome, Girman; Winslow & Smith, P.C. 355 North 21st Street, Suite 102 Camp Hill, PA 17011 a oil— Angel N. Rainey, Esq. 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) Pyle Transport Services, Inc. VS. Coal City Cob Co., Inc. and Roger Garcia No. 2895 2013 State matter to be argued (Le., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs Motion for Partial Judgment on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: Angela N. Rainey, Esq. of Marcella & Kivisto, LLC (Name and Address) 1200 Walnut Bottom Rd, Third FI., Ste. 331, Carlisle, PA 17015 (b) for defendants: James DeCinti, Esq. of Pion Law (Name and Address) 355 North 21st Street, Stuite 102, Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: Signature nat . � Print your name Angela N. Rainey, Esq. Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CA- AL PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED -v1 a: rri 7: CERTIFICATE OF SERVICE . r I certify that the Praecipe for Listing Case for Argument in the within actionVas: served upon the following by email and by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 11th day of April, 2014. James DeCinti, Esq. Pion, Nerome, Girman, Winslow & Smith, P.C. 355 North 21st Street, Suite 102 Camp Hill, PA 17011 jdecinti@pionlaw.com Angela Rainey, Esq. FILED- 0FFIC;E OF THE PROTUONOTAR i° 2014 APR 21 PM 2:51 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13- 2895 -CIVIL v. NOTICE OF CHANGE OF ADDRESS COAL CITY COB COMPANY, INC. AND ROGER GARCIA Defendants. Filed on behalf of Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA Counsel of record for these parties: John T. Pion, Esquire PA I.D. # 43675 James DeCinti, Esquire PA I.D. # PA 77421 PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C. Payne Shoemaker Building, 10th Floor 240 North Third Street Harrisburg, Pennsylvania 17101 Main: (717) 737 -5833 • Fax: (717) 737 -5553 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PYLE TRANSPORT SERVICES, INC., CIVIL DIVISION Plaintiff, 13- 2895 -CIVIL v. COAL CITY COB COMPANY, INC. AND ROGER GARCIA Defendants. NOTICE OF CHANGE OF ADDRESS TO THE PROTHONOTARY: Kindly note my change of address as counsel for Defendants, COAL CITY COB COMPANY, INC. AND ROGER GARCIA , in the above matter. Papers may be served at the address set forth below effective March 1, 2014. James DeCinti, Esq. Pion, Nerone, Girman, Winslow & Smith Payne Shoemaker Building, 10t'' Floor 240 North Third Street Harrisburg, Pennsylvania 17101 Main: (717) 737 -5833 • Fax: (717) 737 -5553 PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C. Dated: April 16, 2014 By James DeCinti, Esquire P.A. I.D. # 77421 Payne Shoemaker Building, 10'x' Floor 240 North Third Street Harrisburg, Pennsylvania 17101 'c�ieciq ,pionlaw.com Main: (717) 737 -5833 Fax: (717) 737 -5553 CERTIFICATE OF SERVICE I, James DeCinti, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Change of Address was served upon counsel of record by Electronic Mail, April 16, 2014, as follows: Angela N. Rainey, Esquire Marcello & Kivisto, LLC 1200 Walnut Bottom Road Thrid Floor, Suite 331 Carlisle, PA 17015 arainey @cdl -law. com Counsel for Plaintiff PYLE TRANSPORT SERVICES, INC. PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C. James DeCinti, Esquire 2 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: a Please withdraw my appearance on behalf of Plaintiff Pyle Transport Services, Inc. in This atter. Date: 57 1 TO THE PROTHONOTARY: Respectfully Submitted, MAARRC�ELLO�& KIVISTIL LLC By: l �r.1 �fG�- Angela M. Rainey, Esq (ID. -20716 Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 T: (717) 240-4686 F: (717) 258-4686 ENTRY OF APPEARANCE Kindly, enter my appearance on behalf of Plaintiff Pyle Transport Services, Inc. in the above - captioned matter. �L Date: S d-1/1"/ By: Respectfully Submitted, Douglas WjMarce o, Esq. Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 T: (717) 240-4686 F: (717) 258-4686 PYLE TRANSPORT SERVICES, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 13-2895 Civil COAL CITY COB COMPANY, INC. and : CIVIL ACTION - LAW ROGER GARCIA, Defendants : JURY DEMANDED CERTIFICATE OF SERVICE I certify that the Praecipe for Withdraw of Appearance and Entry of Appearance in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 23rd day of May, 2014. James DeCinti, Esq. Pion, Nerome, Girman, Winslow & Smith, P.C. Payne Shoemaker Building, 10th Floor 240 North Third Street Harrisburg, PA 17101 21°"'r. Angela Rainey, Esq. #12.ARGUMENT —MAY 9,2014 PYLE TRANSPORT : IN THE COURT OF COMMON PLEAS OF SERVICES, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. • COAL CITY COB : NO. 2013 –2895 CIVIL COMPANY, INC., and ROGER GARCIA, • Defendants : IN RE: PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS BEFORE GUIDO, MASLAND, PLACEY, JJ. ORDER OF COURT AND NOW, this 18111-day of JUNE, 2014, after review of the briefs filed by the parties in support of their respective positions, and having heard argument thereon, we are constrained to grant Plaintiffs Motion for Partial Judgment on the Pleadings.1 Defendants' cross claim having been filed after the expiration of the statute of limitations, it is DISMISSED. By the s dap Edward E. Guido, J. N. Rainey, Esquire 1200 Walnut Bottom Road Carlisle, Pa. 17015 rri CI] c DeCinti, Esquire 240 North Third Street c. Harrisburg, Pa. 17101 z _ •• _ Court Administrator — :sld We could find no meaningful distinction between this case and Harmer v. Hulsey, 467 A.2d 867(Pa. Super 1983). 0.44) i'tat'LccL 1../lopy