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HomeMy WebLinkAbout13-3398 Supreme CQ "� ennsylvania COu f f�Co�lrp�o leas For Prothonotary Use Only: C 0 t jr , t Docket No: County 3 338 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 pa ers as required bylaw or rules of court. Commencement of Action: S 0 Complaint l@ Writ of Summons a Petition Transfer from Another Jurisdiction 0 Declaration of Taking E Lead Plaintiff's Name: Lead Defendant's Name: C GARY L. SNYDER KEYSTONE BIOFUELS, INC. T Dollar Amount Requested: Owithin arbitration limits I Are money damages requested? [l Yes 0 No (check one) x+ outside arbitration limits O N Is this a Class Action Suit? 0 Yes I No Is this an MDJAppeal? 0 Yes xi No A Name of Plaintiff /Appellant's Attorney: TURO ROBINSON ATTORNEYS AT LAW 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 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment Oi Motor Vehicle 0 Debt Collection: Other 0 Board of Elections Nuisance 0 Dept. of Transportation Premises Liability ! Statutory Appeal: Other S ® Product Liability (does not include 0 Employment Dispute: E mass tort) Discrimination 0 Slander/Libel/ Defamation 0 Employment Dispute: Other 0 Zoning Board C IR Other: ® Other: T I 0 Other: O MASS TORT 0 Asbestos N 0 Tobacco 0 Toxic Tort - DES J Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste iI Ejectment 0 Common Law /Statutory Arbitration Other: 0 Eminent Domain/Condemnation 0 Declaratory Judgment B 0 Ground Rent Mandamus 0 Landlord /Tenant Dispute 0 Non - Domestic Relations 0 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 0 Quo Warranto 0 Dental Partition 0 Replevin 0 Legal Quiet Title 0 Other: 0 Medical 0 Other: Other Professional: Updated 1/1/2011 GARY L. SNYDER and IN THE COURT OF COMMON PLEAS BONNIE M. SNYDER, OF CUMBERLAND COUNTY, PA Plaintiffs NO. 13 — 33Rg CIVIL ACTION VS. _ -, CIVIL ACTION - LAW '° `°`' KEYSTONE BIOFUELS, INC., Defendant JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS r ~' TO THE PROTHONOTARY: Please issue a Writ of Summons regarding the above -named Defendant at the following address: Keystone Biofuels, Inc. 2850 Appleton Street Camp Hill, PA 17011 Respectfully Submitted, TURO ROBINSON Attorneys at Law 129 South Pitt Street Carlisle, PA 17013 (717) 245 -9688 Attorneys for Plaintiffs Dat V sic Brewbaker ourt No. 85758 Paul M. Ferguson Supreme Court No. 203293 GARY L. SNYDER and IN THE COURT OF COMMON PLEAS BONNIE M. SNYDER, OF CUMBERLAND COUNTY, PA Plaintiffs NO. 13 — 33 9 CIVIL ACTION vs. CIVIL ACTION -LAW KEYSTONE BIOFUELS, INC., Defendant JURY TRIAL DEMANDED WRIT OF SUMMONS TO DEFENDANT KEYSTONE BIOFUELS, INC.: You are hereby notified that Plaintiffs Gary L. Snyder and Bonnie M. Snyder have commenced an action against you. Date Prothonotary B Deputy GARY L. SNYDER and IN THE COURT OF COMMON PLEAS BONNIE M. SNYDER, OF CUMBERLAND COUNTY, PA Plaintiffs NO. 13 — CIVIL ACTION VS. " CIVIL ACTION -LAW KEYSTONE BIOFUELS, INC., : Defendant JURY TRIAL DEMANDED TO THE SHERIFF OF CUMBERLAND COUNTY: Please serve the attached Writ of Summons on the named Defendant at the following address: Keystone Biofuels, Inc. 2850 Appleton Street Camp Hill, PA 17011 Respectfully Submitted, TURO ROBINSON Attorneys at Law 129 South Pitt Street Carlisle, PA 17013 (717) 245 -9688 Attorneys for Plaintiffs Dat6 essi a E. Brewbaker u e e Court No. 85758 Paul M. Ferguson Supreme Court No. 203293 GARY L. SNYDER and : IN THE COURT OF COMMON PLEAS BONNIE M. SNYDER, : OF CUMBERLAND COUNTY, PA , Plaintiffs : C.� : NO. 13 —3398 CIVIL ACTIONS VS. �— r ^f�1 = t .a . : CIVIL ACTION - LAW ■'a `== KEYSTONE BIOFUELS, INC., Defendant : JURY TRIAL DEMANDED w ':`; ji �-� • r. 1 r PRAECIPE TO WITHDRAW WRIT OF SUMMONS TO THE PROTHONOTARY: Please withdraw and discontinue without prejudice, on behalf of the Plaintiffs, the Writ of Summons issued June 12, 2013 in the above-captioned matter. Respectfully Submitted, TURO ROBINSON Attorneys at Law '7/2.'1/3 Dat Paul M. Ferguson Supreme Ct. No. 203293 Jessica E. Brewbaker Supreme Court No. 85758 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs GARY L. SNYDER and : IN THE COURT OF COMMON PLEAS BONNIE M. SNYDER, : OF CUMBERLAND COUNTY, PA Plaintiffs : NO. 13 —3398 CIVIL ACTION vs. : CIVIL ACTION - LAW KEYSTONE BIOFUELS, INC., Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on this day I served a true and correct copy of the Praecipe to Withdraw Writ of Summons, by depositing same in the United States Mail, first class,postage pre-paid, from Carlisle, Pennsylvania, addressed as follows: Keystone Biofuels, Inc. 2850 Appleton Street Camp Hill, PA 17011 Robert E. Chernicoff, Esq. Cunningham and Chernicoff PC 2320 North Second Street Harrisburg, PA 17110 TURO ROBINSON Attorneys at Law 07/6)2- /4_3 Date Paul M. Ferguson Supreme Ct. No. 203293 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson FILED-OFHCE Sheriff 'jF 1"HE PROTHONOTArR"l' Jody S Smith 20{3JUN26 PM2-,- 12 Chief Deputy %4'471:r� Richard W Stewart CUMBERLAND COUNTY Solicitor OMCE Or THE WERIP: PENNSYLVANIA Gary L Snyder(et al.) Case Number vs. Keystone Biofuels, Inc. 2013-3398 I SHERIFF'S RETURN OF SERVICE 06/20/2013 02:01 PM- Deputy Jamie DiMartle, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Dave Tielle, Director of Business Development,who accepted as"Adult Person in Charge"for Keystone Biofuels, Inc. at 2850 Appleton Street, Suite E, Lower Allen, Camp Hill, PA 17011, jau-u (ijmo�� J 1E DIMARTLE, DEPUTY SHERIFF COST: $45.41 SO ANSWERS, June 21, 2013 RbN R ANDERSON, SHERIFF fr)Couraylufte Sheriff,Tcfeosoffi,lnc. JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ATTORNEY FOR PLAINTIFFS GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. KEYSTONE BIOFUELS, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, C) „,, PENNSYLVANIA zrn 23w .1 Z c -i '- tor' _... NO. 20/3 -CV -33 91 r-- w CD TRIAL BY JURY DEMAND c c) icfl C NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. • CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ATTORNEY FOR PLAINTIFFS GARY L. SNYDER IN THE COURT OF COMMON PLEAS and CUMBERLAND COUNTY, BONNIE M. SNYDER, PENNSYLVANIA Plaintiffs vs. NO. 201.E -CV- 3388 KEYSTONE BIOFUELS, INC. TRIAL BY JURY DEMANDED COMPLAINT AND NOW comes the Plaintiffs, Gary and Bonnie Snyder, by and through their attorney, Jessica E. Brewbaker, Esquire, and avers as follows: 1. Plaintiffs are Gary Snyder and Bonnie Snyder, married adult individuals who both reside at 40 Sheraton Drive, Carlisle, Cumberland County, Pennsylvania, 17015. '. 2. Defendant Keystone Biofuels, Inc. is a Pennsylvania corporation with a principal place of business at 2850 Appleton Street, Camp Hill, Cumberland County, Pennsylvania, 17011. 3. On or about March 18, 2013, Keystone Biofuels, Inc. filed a Petition for Chapter 11 Bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania. 4. On or about March 3, 2014, Plaintiffs were granted leave by the United States Bankruptcy Court for the Middle District of Pennsylvania to "proceed with the claim and/or litigation against [Keystone Biofuels, Inc.] on account of the September 21, 2012 accident, limited, however, to the extent of any available insurance proceeds." 5. On or about September 21, 2012, Plaintiff Gary Snyder was employed by John W. Gleim, Jr., Inc. (hereinafter "Gleim") 6. Gleim was contracted by a third company to load and haul glycerin from the facility of Defendant, Keystone Biofuels, Inc. 8. As part of his work requirements with Gleim, Mr. Snyder would load glycerin into tanker trucks via a hose at Defendant Keystone Biofuels' facility. 9. On September 21, 2012, Mr. Snyder was at Keystone Biofuels' facility in Camp Hill, Pennsylvania, loading glycerin into the top of a tanker truck. 10. During this loading process, the glycerin in the hose surged, and Mr. Snyder was thrown at least 12 feet to the concrete floor below, sustaining multiple and life-threatening injuries. 11. Among Mr. Snyder's injuries were a shattered left femur, destroyed left radial head, hairline fractures of his pelvic bones, a fractured right wrist, a lacerated right forearm, and scrapes to his right torso and head. 12. Following his transport by ambulance to the Hershey Medical Center, Mr. Snyder had surgery to insert a titanium rod in his left femur and to place a radial head in his left arm. 13. , Mr. Snyder remained hospitalized as a result of his injuries for a period of 57 days. 14. Following his release from inpatient hospitalization, Mr. Snyder continued with a strict regimen of physical therapy through September 20, 2013. 15. Mr. Snyder has lastly physical impairments, including a 3/4 inch leg discrepancy requiring daily use of a cane, the inability to walk normally, and continued pain and lifelong limitations. 16. As of this point, Mr. Snyder's medical bills as a result of his injuries from the September 21, 2012 incident total more tan $260,000.00. 17. Prior to the incident, Mr. Snyder was receiving $840.68/week in wages. He has not been able to return to work since September 21, 2012, currently totaling over $80,000.00 in lost wages. COUNT I NEGLIGENCE 18.. The averments of Paragraphs 1 through 17 are incorporated herein by reference as if fully set forth. 19. At the time of Mr. Snyder's accident on September 21, 2012, there were no safety mechanisms in place to prevent a fall and resulting injuries such as those sustained by Mr. Snyder. 20. Prior to Mr. Snyder's injuries on September 21, 2012, there had been a safety, cage installed surrounding the tanker trucks, so that employees could not fall to the ground below. 21. Defendant Keystone Biofuels, Inc. removed or allowed to be removed the safety cage that had previously surrounded the tanker trucks, preventing such serious accidents from occurring. 22. Defendant Keystone Biofuels, Inc. allowed work to be done on the tanker trucks with no safety mechanisms in place to prevent the type of injuries sustained by Mr. Snyder. 23. As an employee of Gleim who contracted to do work at Defendant's facility, Mr. Snyder was a business invitee at Defendant's facility. 24. Defendant Keystone Biofuels, Inc. had a duty to ensure the safety of invitees to its facility, including those such as Mr. Snyder. 25. Defendant's failure to keep a safety railing in place is a violation of the Occupational Safety & Health Administrations' Regulations. 26. Defendant Keystone Biofuels, Inc. was negligent in failing to take measures to ensure the safety of business invitees at its facility. 27. As a direct and proximate result of Keystone Biofuel Inc.'s negligence, Plaintiff has suffered significant pain and lifelong injuries and complications. 28. As a direct and proximate result of Keystone Biofuel Inc.'s negligence, Plaintiff has incurred significant medical bills and is no longer able to work. 29. As a direct and proximate result of Keystone Biofuel Inc.'s negligence, Plaintiff has suffered great and lasting mental anguish and emotional pain and suffering., WHEREFORE, Plaintiff seeks damages against Defendant in an amount in excess of the jurisdictional limit and demands a trial by jury. COUNT II LOSS OF CONSORTIUM 30. The averments of paragraphs 1 through 29 are incorporated herein by reference as if fully set forth. 31. Due to Mr. Snyder's injuries, Plaintiff Bonnie Snyder suffered from loss of her husband's care, companionship, and consortium. WHEREFORE, Plaintiff seeks damages from Defendant in an amount in excess of the jurisdictional limit and demands a trial by jury. COUNT III PUNITIVE DAMAGES 32. The averments of paragraphs 1 through 31 are incorporated herein by reference as if fully set forth. 33. , Keystone Biofuels, Inc.'s conduct in removing the existing safety cage was outrageous and completely unnecessary. 34. Punitive damages should be awarded to redress Keystone Biofuels, Inc.`s outrageous conduct and to deter others like it from similar conduct. WHEREFORE, Plaintiff seeks punitive damages from Defendant in an amount in excess of the jurisdictional limit and demands a trial by jury. Date: elolq (sska E. Brewbaker, Esquire IbI-4 85758 Turo Robinson 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 GARY L. SNYDER IN THE COURT OF COMMON PLEAS and CUMBERLAND COUNTY, BONNIE M. SNYDER, PENNSYLVANIA Plaintiffs vs. NO. 2013. -CV -33T' KEYSTONE BIOFUELS, INC. TRIAL BY JURY DEMANDED VERIFICATION I, Gary L. Snyder and Bonnie M. Snyder, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: Ad lI, zot (-11 ) Bonnie M. Snyder Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTYyL VILEii- FIC- t11- THE PROTHO •' `; 220UU AUG 26 A IU. 08 CUMBERLAND COUNT . PENNSYLVANIA 0 010,1 Pg. l:IIJtit; 14 j! OFFICE OF THE SHERIFF' Gary L Snyder (et al.) vs. Case Number Keystone Biofuels, Inc. 2013-3398 SHERIFF'S RETURN OF SERVICE 08/15/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Keystone Biofuels, Inc., but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at 2850 Appleton Street, Suite E, Lower Allen, Camp Hill, PA 17011. Deputies were advised by the new business located at this address that the defendants Keystone Biofuels, Inc. are no longer in business and they have no contact information for them. Per the Camp Hill Postmaster mail is delivered to the address provided. SHERIFF COST.: $50.44 SO ANSWERS, August 25, 2014 RONNY R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoft. Inc. GARY L. SNYDER and : IN THE COURT OF COMMON PLEAS2 BONNIE M. SNYDER, : OF CUMBERLAND COUNTY, PA -vim -- Plaintiffs z� : NO. 13 — 3398 CIVIL ACTION o , vs. 1-<> ,1/4, tv : CIVIL ACTION - LAWD.c-', ••• Zp. : JURY TRIAL DEMANDED ---i c .=- -< x-- ,: I hereby certify that I served a true and correct copy of the Complaint, by Cert1f e'd Mail, p w on September 8, 2014, from Carlisle, Pennsylvania, addressed as follows:• Keystone Biofuels, Inc. c/o Jerry L. Wilcoxon -< Wilcoxon Consulting, LLC 16 N. Washington Street, Suite 102 Easton, MD 21601 KEYSTONE BIOFUELS, INC., Defendant PROOF OF SERVICE Service was effected on September 10, 2014 as evidenced by the attached United States Postal Service Domestic Return Receipt. lb as Date TURO ROBINSON Attorneys at Law 3: .c -a. f . &etAhavtRM Jessica E. Brewbaker Supreme Ct. No. 85758 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 6. Article Addressed to: -Keysbnc &is c/o L. W1ic_o►uor i k/,11101coTi Constit , l l. i L t l . itilasl� -bn �eef , Sl.tA-e.- I o2 Easton , m D 2.11s01 COMPLETE THIS SECTION ON DELIVERY eceived bv (Printed Name C. Date of Delivery D. 1s deliveiy address different from item 1? 0 Yes If YES, enter delivery adts1 ge below: 0 No ?'o C2PX034 3. Service Type & ` 1 Vt Certified Mail® rrori pall -Express" ❑ Registered etum- ceipt for Merchandise ❑ Insured Mail 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 2. Article Number (Transfer from service label ries is7;0i4 ;1200 ODO0;13820 PS Form 3811, July 2013 Domestic Return Receipt IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs v. KEYSTONE BIOFUELS, INC., Defendant CIVIL DIVISION CASE NO: 2013 -CV -3398 JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Please enter my appearance on behalf of the Defendant, KEYSTONE BIOFUELS, in the above -captioned matter, without waving any objections to service of and personal jurisdiction over Defendant. BY: Date: 11 .-V)1' Respectfully submitted, CIPRIANI ez WERNER, P.C. ADAM L. SEIFERTH, ` SQU Attorney ID# 89073 1011 Mumma Road, Suite 2 Lemoyne, PA 17043 (717) 975-9600 aseiferth@c-wlaw.com Counsel for the Defendant, KEYSTONE BIOFUELS CERTIFICATE OF SERVICE That counsel for the Defendant, KEYSTONE BIOFUELS, INC., hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre -paid, according to the Pennsylvania Rules of Civil Procedure, on the a "41 day of f.4.4 t,4'3 , 2014. Jessica E. Brewbaker, Esquire Turo Robinson Law Firm 129 South Pitt Street Carlisle, PA 17013 (Counsel for Plaintiffs) BY: Respectfully submitted, CIPRIANI & WERNER, P.C. ADAM L. SEIFERTH, SQU Counsel for the Defendant, KEYSTONE BIOFUELS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION GARY L. SNYDER and BONNIE M. ) CASE NO: 2013 -CV -3398 SNYDER, Plaintiffs V. ) ) C-) ,. ▪ --1 , C c C=3 KEYSTONE BIOFUELS, INC., ) -0 ) rncX X rn ' l'i r ------- Defendant ) JURY TRIAL DEMANDED NOTICE TO PLEAD a cic-: TO: PLAINTIFFS, GARY L. SNYDER and BONNIE M. SNYDER -•-: ,_ i r - do Jessica E. Brewbaker, Esquire •< 0--. • '7' . Turo Robinson Law Firm 129 South Pitt Street Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. BY: Date: Respectfully submitted, CIPRIANI & WERNER, P.C. ADAM L. SEIFERTH, Attorney ID# 89073 1011 Mumma Road, Suite Lemoyne, PA 17043 (717) 975-9600 aseiferth@c-wlaw.com Counsel for the Defendant, KEYSTONE BIOFUELS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION GARY L. SNYDER and BONNIE M. ) CASE NO: 2013 -CV -3398 SNYDER, Plaintiffs V. KEYSTONE BIOFUELS, INC., Defendant ) ) ) ) ) ) ) ) ) JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, KEYSTONE BIOFUELS, INC., TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendant, Keystone Biofuels, Inc. (hereinafter "Keystone"), by and through its attorneys, Cipriani & Werner, P.C., and files the following Preliminary Objections to Plaintiffs' Complaint and, in support thereof, states as follows: I. PROCEDURAL BACKGROUND Plaintiffs initiated this lawsuit at the above -referenced docket number by filing a Praecipe for Writ of Summons on June 12, 2013. 2. Defendant, Keystone, was served with the Writ of Summons by Sheriff on June 20, 2013. 3 Thereafter, on July 2, 2013, Plaintiffs filed a Praecipe to Withdraw Writ of Summons, requesting that the Prothonotary "withdraw and discontinue without prejudice, on behalf of the Plaintiffs, the Writ of Summons issued June 12, 2013". A true and correct copy of the Praecipe to Withdraw Writ of Summons is attached hereto as Exhibit "A". 4. Over a year later, on August 13, 2014, Plaintiffs filed a Complaint. A true and correct copy of Plaintiffs' Complaint is attached as Exhibit "B". 5. Plaintiffs attempted service of the Complaint by Sheriff; however, the Sheriff was unable to locate Defendant, Keystone. (See, Docket). 6. Plaintiffs proceeded to send the Complaint by Certified Mail on or about September 10, 2014 to: Jerry Wilcoxon, Wilcoxon Consulting, LLC, 16 N. Washington Street, Suite 102, Easton, MD 21601. A true and correct copy of Plaintiffs' Proof of Service is attached hereto as Exhibit "C". 7. Counsel for Plaintiffs and Defendant, Keystone, entered into a Agreement to Allow time to Plead pursuant to Pa.R.C.P. 237.2 until November 12, 2014. 8. These Preliminary Objections are timely filed. IL FACTUAL BACKGROUND 9. According to Plaintiff's Complaint, On September 21, 2012, Plaintiff, Gary Snyder, was loading glycerin into the top of a tanker truck when the hose surged causing him to fall to the concrete floor below. (See, Exhibit B, paragraphs 9-10). 10. In paragraph 4 of the Complaint, it is alleged that "On or about March 3, 2014, Plaintiffs were granted leave by the United States Bankruptcy Court for the Middle District of Pennsylvania to `proceed with the claim and/or litigation against [Keystone Biofuels, Inc.] on account of the September 21, 2012 accident, limited, however, to the extent of any available insurance proceeds."' (See, Exhibit B, paragraph 4). 11. In addition to alleging claims of negligence and loss of consortium, Plaintiffs have asserted a claim of punitive damages in Count III of the Complaint as follows: 33. Keystone Biofuels, Inc.'s conduct in removing the existing safety cage was outrageous and completely unnecessary. 34. Punitive damages should be awarded to redress Keystone Biofuels, Inc.'s outrageous conduct and to deter others like it from similar conduct. (See, Exhibit B, paragraphs 33-34). III. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(0(2) IN THE NATURE OF A MOTION TO STRIKE THE COMPLAINT AS IMPERTINENT 12. Prior to filing the present Complaint, Plaintiffs voluntarily discontinued this lawsuit upon filing a Praecipe to Withdraw Writ of Summons on July 2, 2013. (See, Exhibit A). 13. A discontinuance is the exclusive method of voluntarily terminating an action before a trial has commenced. Pa.R.C.P. 229(a). 14. The general effect of a discontinuance is to terminate the action without an adjudication of the merits and to place the plaintiff in the same position as if the action had never been instituted. Hence, when an action is discontinued, there no longer is an action pending before the trial court. It is self-evident that if there is no action pending before a court, there is no matter over which a court can or may exert jurisdiction. Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476 (Pa. Super. 2014). 15. The fact that a discontinuance operates to nullify an action as if it was never initiated is further supported by Pennsylvania Rule of Civil Procedure 231(a), which provides "[a]fter a discontinuance . . . the plaintiff may commence a second action upon the same cause of action . . . ." Pa.R.C.P. 231(a) (emphasis added). Rule 231(a) speaks in terms of a second or new action and not the continuation or revival of the action discontinued. See, Motley Crew, LLC., 93 A.3d at 476. 16. Once a case has been discontinued, the plaintiff may commence a second action upon the same cause of action, so long as the statute of limitations has not expired. Marra v, SmithKline Beecham Corporation, 789 A.2d 704 (Pa. Super. 2001). 17. Because of the withdraw and discontinuance filed by Plaintiffs on July 2, 2013, the Complaint filed on August 13, 2014 is a nullity, otherwise impertinent matter, as Plaintiffs should have commenced a second action in accordance with Pa.R.C.P. 231(a). WHEREFORE, Defendant, Keystone Biofuels, Inc., respectfully requests this Honorable Court to grant its preliminary objection in the nature of a Motion to Strike Plaintiffs' Complaint as impertinent. IV. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(1) FOR LACK OF JURISDICTION OVER AND/OR IMPROPER SERVICE OF DEFENDANT, KEYSTONE 18. To purportedly effectuate service of Defendant, Keystone, Plaintiffs mailed the Complaint by Certified Mail on or about September 10, 2014: Jerry Wilcoxon, Wilcoxon Consulting, LLC, 16 N. Washington Street, Suite 102, Easton, MD 21601. (See, Exhibit C). 19. At all times relevant, Defendant, Keystone, was a Pennsylvania corporation with a principal place of business in Camp Hill, Cumberland County, Pennsylvania. (See, Exhibit B, paragraph 2). 20. Pennsylvania Rule of Civil Procedure 424 sets forth the manner in which service of original process may be obtained over a corporation such as Defendant, Keystone. 21. Jerry Wilcoxon is not, and has never been, an executive officer, person in charge or authorized agent permitted to receive service of process on behalf of Defendant, Keystone, in accordance with Rule 424. See, Pa.R.C.P. 424(1) through (3). 22. In the absence of service, a court lacks personal jurisdiction over a party and is powerless to enter judgment against him. U.K. LaSalle Inc. v. Lawless, 421 Pa. Super. 496, 618 A.2d 447, 449 (1992). 23. Furthermore, for the reasons set forth in Section III above, the Plaintiffs' Complaint filed on this docket is a nullity. As there is no action pending before this court, there is no matter over which a court can or may exert jurisdiction. Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476 (Pa. Super. 2014). WHEREFORE, Defendant, Keystone Biofuels, Inc., respectfully requests this Honorable Court to grant it preliminary objection pursuant to Pa.R.C.P. 1028(a)(1) for lack of jurisdiction and improper service. V. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) IN THE NATURE OF A DEMURRER TO COUNT III — PUNITIVE DAMAGES 24. In Count III of the Complaint, Plaintiffs aver the following in support of a claim for punitive damages against Defendant, Keystone: 33. Keystone Biofuels, Inc.'s conduct in removing the existing safety cage was outrageous and completely unnecessary. 34. Punitive damages should be awarded to redress Keystone Biofuels, Inc.'s outrageous conduct and to deter others like it from similar conduct. (See, Exhibit B, paragraphs 33-34). 25. Punitive damages are imposed only for conduct that is "outrageous because of the defendant's evil motives or his reckless indifference to the rights of others." Restatement (Second) of Torts § 908(2); Martin v. Johns -Manville Corp., 494 A.2d 1088 (Pa. 1985); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Chambers v. MontLomerv, 411 Pa. 339, 192 A.2d 355 (1963). A court may award punitive damages only if the described conduct was "malicious, wanton, reckless, willful, or oppressive." Chambers, 411 Pa. at 344-45, 192 A.2d at 358. The proper focus is on "the act itself together with all the circumstances including the motive of the wrongdoer and the relations between the parties...." Id. at 345, 192 A.2d at 358. 26. Neither mere negligence, nor even gross negligence shows sufficient culpability to justify a punitive damage award. Takes v. Metropolitan Edison Co., 655 A.2d 138, 144 (Pa. Super. 1995). Rather, it must be something more than negligent; it must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. Moran v. G. & W.H. Corson, Inc., 586 A.2d 416, 423 (Pa. Super. 1991), emphasis added. 27. There are no facts alleged in Plaintiffs' Complaint which establish the outrageousness, evil motive or reckless indifference to the rights of others that would entitle Plaintiffs to an award of punitive damages as a matter of law. At most, the Complaint avers that this incident allegedly occurred when a glycerin hose surged and Plaintiff fell due to a missing safety cage. (See, Exhibit B, paragraphs 10; 20-22). 28. The aforementioned allegations in the Complaint fails to aver facts which allege anything more than an unfortunate accident, negligent conduct, and/or a mistake in judgment against Defendants. 29. Simply pleading outrageous conduct, as Plaintiffs did in paragraph 33 of the Complaint, is not a sufficient basis to warrant punitive damages where there are no averments in the complaint to show that the Defendant acted with a reckless indifference so great as to make it highly probable that harm would follow. Wagner v. McNeil , 17 Pa. D. & C.4th 378 (1992). 30. Indeed, Count III is nothing more than a legal conclusion and an argumentative allegation which this Court may not consider for purposes of a demurer. Small v. Horn, 554 Pa. 600, 722 A.2d 664 (1998). 31. Therefore, assuming as true all factual allegations of Plaintiffs' Complaint, it is clear that the Complaint fails to state any basis for a claim of punitive damages against the Defendants. 32. Even if the Complaint could be construed to state a factual basis for punitive damages, which it does not, in paragraph 4 of the Complaint, it is alleged that "On or about March 3, 2014, Plaintiffs were granted leave by the United States Bankruptcy Court for the Middle District of Pennsylvania to `proceed with the claim and/or litigation against [Keystone Biofuels, Inc.] on account of the September 21, 2012 accident, limited, however, to the extent of any available insurance proceeds."' (See, Exhibit B, paragraph 4; See also, Order of Bankruptcy Court attached hereto as Exhibit "D"). 33. The nature of punitive damage award is designed to punish an individual litigant for misconduct and such awards are not bodily injury or property damage awards. Punitive damages are not intended to compensate the victim but to punish the actor. An insurer owes no duty to indemnify an insured on an award of punitive damages. See, Creed v. Allstate Ins. Co., 365 Pa. Super. 136, 141-142, 529 A.2d 10, 12 (1987), citing, Esmond v. Liscio, 209 Pa. 200, 224 A.2d 793 (1966). 34. As Plaintiffs may only proceed with their claims against Defendant, Keystone, to the extent of available insurance proceeds, Plaintiffs are prohibited from pursuing punitive damages, as no insurance proceeds exist with which to indemnify Defendant, Keystone, for such a claim. WHEREFORE, Defendant, Keystone Biofuels, Inc., respectfully requests this Honorable Court to grant its preliminary objection in the nature of a demurrer to Count III of Plaintiffs' Complaint and dismiss Plaintiffs' claims for punitive damages with prejudice. BY: Date: 11— id,-RPH- Respectfully submitted, CIPRIANI & WERNER, P.C. DAM L. SEIFERTH, ES Attorney ID# 89073 1011 Mumma Road, Sui Lemoyne, PA 17043 (717) 975-9600 aseiferth@c-wlaw.com Counsel for the Defendant, KEYSTONE BIOFUELS EXHIBIT A GARY L. SNYDER and : IN THE COURT OF COMMON PLEAS BONNIE M. SNYDER, : OF CUMBERLAND COUNTY, PA Plaintiffs : NO. 13 — 3398 CIVIL ACTION rn vs. z Z (-- : CIVIL ACTION - LAW cf) KEYSTONE BIOFUELS, INC., 1--- 6 Defendant : JURY TRIAL DEMANDED ):;• n z 77 17: .--4 PRAECIPE TO WITHDRAW WRIT OF SUMMONS TO THE PROTHONOTARY: Please withdraw and discontinue without prejudice, on behalf of the Plaintiffs, the Writ of Summons issued June 12, 2013 in the above -captioned matter. -0 Respectfully Submitted, TURO ROBINSON Attorneys at Law 0 7 3 Paul M. Ferguson Supreme Ct. No. 203293 Jessica E. Brewbaker Supreme Court No. 85758 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : NO. 13 — 3398 CIVIL ACTION : CIVIL ACTION - LAW KEYSTONE BIOFUELS, INC., Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE 1 hereby certify that on this day I served a true and correct copy of the Praecipe to Withdraw Writ of Summons, by depositing same in the United States Mail, first class, postage pre -paid, from Carlisle, Pennsylvania, addressed as follows: o/ /13 Date Keystone Biofuels, Inc. 2850 Appleton Street Camp Hill, PA 17011 Robert E. Chemicoff, Esq. Cunningham and Chemicoff PC 2320 North Second Street Harrisburg, PA 17110 TURO ROBINSON Attorneys at Law Paul M. Ferguson Supreme Ct. No. 203293 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs EXHIBIT B JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ATTORNEY FOR PLAINTIFFS GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, C cz. PENNSYLVANIA •-‘7Z ..L-- rnco r. z _rn c x -r., a") NO. 2013 -CV -33 2013 -CV -33 91 r- -(37> 7> KEYSTONE BIOFUELS, INC. TRIAL BY JURY DEMAND NOTICE rri — CD • CD c) XfOw Cil • YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights • • important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. • IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. .CUMBERLAND COUNTY BAR ASSOCIATION • •• 32 South Bedford Street • Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN COR1'E. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los pr6ximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acciOn como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI US'1ED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE • • • CUALIFICAN. CUMBERLAND COUNTY.BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 • JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ATTORNEY FOR PLAINTIFFS GARY L. SNYDER IN THE COURT OF COMMON PLEAS and CUMBERLAND COUNTY, BONNIE M. SNYDER, PENNSYLVANIA Plaintiffs vs, NO. 2013 -CV- 3399 KEYSTONE BIOFUELS, INC. TRIAL 13Y JURY DEMANDED COMPLAINT • AND NOW comes the Plaintiffs, Gary and Bonnie Snyder, by and through their attorney, Jessica E. Brewbaker, Esquire, and avers as follows: •Plaintiffs are Gary Snyder and Bonnie Snyder, married adult individuals who both reside at 40 Sheraton Drive, Carlisle, Cumberland County, Pennsylvania, 17015. 2. , • Defendant Keystone Biofuels, Inc. is a Pennsylvania corporation with a principal place of business at 2850 Appleton Street, Camp Hill, Cumberland County, Pennsylvania, 17011. 3. On or about March 18, 2013, Keystone Biofuels, Inc. filed a Petition for Chapter 11 Bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania. 4. On or about March 3, 2014,Plaintiffs were granted leave by the United States Bankruptcy Court for the Middle District of Pennsylvania to "proceed with the claim and/or litigation against [Keystone Biofuels, Inc.] on account of the September 21, 2012 accident, limited, however, to the extent of any available insurance proceeds." 5. On or about September 21, 2012, Plaintiff Gary Snyder was employed by John W. Gleim, Jr., Inc. (hereinafter "Gleim") 6. Gleim was contracted by a third company to load and haul glycerin from the facility of Defendant, Keystone Biofuels, Inc. 8. As part of his work requirements with Gleim, Mr. Snyder would load glycerin into tanker trucks via a hose at Defendant Keystone Biofuels' facility. 9. On September 21, 2012, Mr. Snyder was at Keystone Biofuels' facility in Camp Hill, Pennsylvania, loading glycerin into the top of a tanker truck. 10. During this loading process, the glycerin in the hose surged, and Mr. Snyder was thrown at least 12 feet to the concrete floor below, sustaining multiple and life-threatening . injuries. 11. Among Mr. Snyder's injuries were a shattered left femur, destroyed left radial head, hairline fractures of his pelvic bones, a fractured right wrist, a lacerated right forearm, and scrapes to his right torso and head. 12.. Following his transport by ambulance to the Hershey Medical Center, Mr. Snyder had surgery to insert a titanium rod in his left femur and to place a radial head in his left armi 13.. Mr. Snyder remained hospitalized asa result of his injuries for a period of 57 days. 14. Following his release from inpatient hospitalization, Mr. Snyder continued with a strict regimen of physical therapy through September 20, 2013. 15. Mr. Snyder has lastly physical impairments, including a 3/4 inch leg discrepancy requiring daily use of a cane, the inability to walk normally, and continued pain and lifelong limitations. 16. As of this point, Mr. Snyder's medical bills as a result of his injuries from the September 21, 2012 incident total more tan $260,000.00. 17. Prior to the incident, Mr. Snyder was receiving $840.68/week in wages. He has not been able to return to work since September 21, 2012, currently totaling over $80,000.00 in lost wages. COUNT I( PIEGLIGF.NCE 18. The averments of Paragraphs 1 through 17 are incorporated herein by reference as if fully set forth. 19. At the time of Mr. Snyder's accident on September 21, 2012, there were no safety mechanisms in place to prevent a fall and resulting injuries such as those sustained by Mr. Snyder. 20. Prior to Mr. Snyder's injuries on September 21, 2012, there had been a safety, • cage installed surrounding the tanker trucks, so that employees could not fall to the ground below. 21. Defendant Keystone Biofuels, Inc. removed or allowed to be removed the safety cage that had previously surrounded the tanker trucks, preventing such serious accidents from oc,curring. 22. Defendant Keystone Biofuels, Inc. allowed work to be done on the tanker trucks with no safety mechanisms in place to prevent the type of injuries sustained by Mr. Snyder. 23. As an employee of Gleim who contracted to do work at Defendant's facility, Mr. Snyder was a business invitee at Defendant's facility. 24. Defendant Keystone Biofuels, Inc. had a duty to ensure the safety of invitees to its facility, including those such as Mr. Snyder. 25. Defendant's failure to keep a safety railing in place is a violation of the Occupational Safety & Health Administrations' Regulations. 26. Defendant Keystone Biofuels, Inc. was negligent in failing to take measures to ensure the safety of business invitees at its facility. 27. As a direct and proximate result of Keystone Biofuel Inc.'s negligence, Plaintiff has suffered significant pain and lifelong injuries and complications. 28. As a direct and proximate result of Keystone Biofuel Inc.'s negligence, Plaintiff has incurred significant medical bills and is no longer able to work. 29. As a direct and proximate result of Keystone Biofuel Inc.'s negligence, Plaintiff has suffered great and lasting mental anguish and emotional pain and suffering., . WHEREFORE, Plaintiff seeks damages against Defendant in an amount in excess of the jurisdictional limit and demands a trial by jury. COUNT IL LOSSSIEMSSDRIIIIISI 30. The averments of paragraphs 1 through 29 are incorporated herein by reference as if fully set forth. 31. Due to Mr. Snyder's injuries, Plaintiff Bonnie Snyder suffered from loss of her husband's care, companionship, and consortium. WHEREFORE, Plaintiff seeks damages from Defendant in an amount in excess of the jurisdictional limit and demands a trial by jury. COUNT m PUNITIVE DAMAGES 32. The averments of paragraphs 1 through 31 are incorporated herein by reference as if fully set forth. 33.. , Keystone Biofuels, Inc.'s conduct in removing the existing safety cage was outrageous and completely unnecessary. 34. Punitive damages should be awarded to redress Keystone Biofuels, Inc.'s outrageous conduct and to deter others like it from similar conduct. WHEREFORE, Plaintiff seeks punitive damages from Defendant in an amount in excess of the jurisdictional limit and demands a trial by jury. Date: a 113111 1 0 ca E. Brewbaker, Esquire 85758, Turo Robinson 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY vi.. _ F!LEi.i OFF fC- r I HE pRQ THQF#(� Ari 20!4 AUG 26 Ail 10: 08 CLi PENNSYLDq AUNTY NIA a of CnmttlZ,, OFFICE OF ME SHERIFF Gary L Snyder (et al) Case Number vs. Keystone Biofuels, Inc. 2013-3398 SHERIFF'S RETURN OF SERVICE 08/15/2014 Ronny R Anderson, Sheriff, being duly swom according to law, states he made diligent search and inquiry for the within named Defendant to wit: Keystone Biofuels, Inc., but was unable to locate the Defendant in his bailiwick. The Sheriff therefore retums the within requested Complaint & Notice as "Not Found" at 2850 Appleton Street, Suite E, Lower Allen, Camp Hill, PA 17011. Deputies were advised by the new business located at this address that the defendants Keystone Biofuels, Inc. are no longer in business and they have no contact information for them. Per the Camp Hill Postmaster mail is delivered to the address provided. SHERIFF COST; $50.44 SO ANSWERS, August 25, 2014 RONNY R ANDERSON, SHERIFF (c)CountySulte Sheriff, Teteosoft, Inc. GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. : IN THE COURT OF COMMON PLEAS2 : OF CUMBERLAND COUNTY, PA rn-v_ai , zDo —4 : NO. 13 — 3398 CIVIL ACTION cni— rn izz N.) <c3 • : CIVIL ACTION - LAW KEYSTONE BIOFUELS, INC., Defendant : JURY TRIAL DEMANDED z 175 •• ,=) PROOF OF SERVICE m t3:3 rn ; 21 I hereby certify that I served a true and correct copy of the Complaint, by CertirfO'Mail, on September 8, 2014, from Carlisle, Pennsylvania, addressed as follows: N -4 • 1<0 •11 - (7) r.c Keystone Biofuels, Inc. c/o Jerry L. Wilcoxon Wilcoxon Consulting, LLC 16 N. Washington Street, Suite 102 Easton, MD 21601 Service was effected on September 10, 2014 as evidenced by the attached United States Postal Service Domestic Return Receipt. lb --c9a - Date TURO ROBINSON Attorneys at Law E Pkvz_ Jessica E. Brewbaker Supreme Ct. No. 85758 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 If Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. II Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 'KeSittlle.. 13thRt &IS c/o Jerr-L-1 L. WI leo Icon wi la 0-6 ConStui-i U. NI . tidasKi n5bn 102 Easbon , nib 2_1ipoi COMPLETE THIS SECTION ON DELIVERY ed b (Printed Name) Cerly()J ent 0 Addressee C. Date of Delivery . Isdevefy addTeSS difteTant m tern 1 If YES, enter delivery alisIrrapFlow: 117 a Yes 0 No 3. Service Type Certified Ma rese 0 Registered umPeipt for Merchandise Insured Mall 0 Coflect on Delivery 4. Restricted Delivery? (Extra Fee) 2. Article Number (Transfer from service labs° tii7A1 ;12)90;j19110;0qP •13!it3') ;I 1 PS Form 3811, July 2013 Domestic Return Receipt GARY L. SNYDER and : IN THE COURT OF COMMON PLEAS2 -94 BONNIE M. SNYDER, : OF CUMBERLAND COUNTY, PA -0Z rn Plaintiffs r ,rr : NO. 13-3398 CIVIL ACTION co) r" rT1 1‘3 X c.1 <CD >b.t,_ "Ds 3c 2-r; 17Z3 CD --I 1---2 4 .C7 • MC" CM° ; •It; .r". I hereby certify that I served a true and correct copy of the Complaint, by CertlfOlviail, , on September 8, 2014, from Carlisle, Pennsylvania, addressed as follows: ••• vs. : CIVIL ACTION - LAW KEYSTONE BIOFUELS, INC., Defendant : JURY TRIAL DEMANDED f PROOF OF SERVICE Keystone Biofuels, Inc. c/o Jerry L. Wilcoxon Wilcoxon Consulting, LLC 16 N. Washington Street, Suite 102 Easton, MD 21601 —4 ••< Service was effected on September 10, 2014 as evidenced by the attached United States Postal Service Domestic Return Receipt. TURO ROBINSON Attorneys at Law it) as -14 f• PiLetobeilvt. Jessica E. Brewbaker Supreme Ct. No. 85758 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs Date SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can retum the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1 Article Addressed to: •Ke js-itne. 13.r.o fi t&IS •" c/0 JerrLi L. illi k o K.or V i IGo Consul+i , tiC i U. N . Was14:1 rnion fist, 5u)A-e. 102 Ea5t:Dn , !rt D 21 1v0 I COMPLETE THIS SECTION ON DFLIVERY A. Si ent 0 Addressee Ived b (Printed Name) C. Date of Delivery Zer �LGIX� D. is delivefy address different from item 1? 0 Yes If YES, enter delivery adsitina JIow: 0 No Ex 3. Service Type geertfed Mar irofil3i1-Express"' ❑ Registered atm -Receipt for Merchandise ❑ Insured Mail 1] Collect on Delivery 4. Restricted Delivery? (Extra Fee) 2. Article Number (Transfer from service laben .: PS Form 3811, July 2013 oPes 7,1�'Jr4 12901. d9CJO i32;3°,91,3; Domestic Return Receipt EXHIBIT D UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA LN RE: KEYSTONE BIOFUELS, INC., Debtor GARY L. SNYDER and BONNIE M. SNYDER, Movants v. KEYSTONE BIOFUELS, INC., Respondent Case No. 1 :13-bk-01380 MDF Chapter 11 ORDER Upon consideration of the foregoing motion to modify automatic stay to the extent of insurance proceeds, concurrence having been given by the attorney for the Respondent Keystone Biofuels, Inc., good reason appearing therefore, and no objection appearing thereto, it is HEREBY ORDERED AND DECREED that the automatic stay be and hereby is modified to allow the Movants to proceed with the claim and/or litigation against the Respondent on account of the September 21, 2012 accident, limited, however, to the extent of any available insurance proceeds. die.ColOrf, Dated: March 3, 2014 Case 1:13-bk-01380-MDF Doc 320 Filed 03/03/14 Entered 03/03/14 14:01:14 Desc Main Document Page 1 of 1 VERIFICATION I hereby affirm that the following facts are correct: I am counsel for the Defendant, Keystone Biofuels, Inc., in the foregoing action, and I am authorized to make this verification on behalf of the Defendant. I have read the attached Preliminary Objections to Plaintiffs' Complaint and verify that the information contained therein is true and correct to the best of my knowledge, information and belief. This verification is made by me instead of Defendant because the facts stated in the Preliminary Objections to Plaintiffs' Complaint are better known to me. I hereby acknowledge that the facts set forth in the aforesaid Preliminary Objections to Plaintiffs' Complaint are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: II ADAM L. SEIFERTH, ES Counsel for the Defendan KEYSTONE BIOFUELS CERTIFICATE OF SERVICE That counsel for the Defendant, KEYSTONE BIOFUELS, INC., hereby certifies that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT has been served on all counsel of record, by first class mail, postage pre -paid, according to the Pennsylvania Rules of Civil Procedure, on the day of Pakateeit , 2014. Jessica E. Brewbaker, Esquire Turo Robinson Law Firm 129 South Pitt Street Carlisle, PA 17013 (Counsel for Plaintiffs) BY: Respectfully submitted, CIPRIANI & WERNER, P.C. 411. ADAM . SEIFERTH, SQ Counsel for the Defendant, KEYSTONE BIOFUELS, JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 jbrewbaker@turolaw.com ATTORNEY FOR PLAINTIFFS GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. KEYSTONE BIOFUELS, INC. C) h, IN THE COURT OF COMMONEA CUMBERLAND COUNTY, PENNSYLVANIA z "< NO. 2013 -CV -3398 N 01 TRIAL BY JURY DEMANDEDZ -r3 PLAINTIFFS' RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. By way of further answer, the Praecipe to Withdraw Writ of Summons was filed because the Plaintiffs were notified that the Defendant, Keystone Biofuels, Inc., was currently pending bankruptcy and that the withdrawal must be filed in order to avoid sanctions from the bankruptcy court. 4. Admitted. By way of further answer, Plaintiffs had been pursuing leave from the bankruptcy court to file a Complaint, and had been in discussions with the Defendants' insurance adjuster; after the leave from the bankruptcy court was granted, Plaintiffs' filed their Complaint. 5. Admitted. By way of further answer, Defendant's location in Camp Hill, Pennsylvania, was closed due to the pending bankruptcy. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Denied. The Praecipe to Withdraw Writ of Summons was not a discontinuance of the lawsuit, but rather was a temporary pause in the proceedings to avoid sanctions by the bankruptcy court while the Plaintiffs worked to be granted leave to pursue their claim. Furthermore, preliminary objections may be filed only for specified reasons, as set forth in Pa.R.C.P. 1028, and Defendant's first preliminary objection does not fall into any of those categories. 13. Admitted in part and denied in part. It is admitted that Pa. R.C.P. 229(a) says that a discontinuance is the exclusive method for voluntary termination of an action. It is denied that Plaintiffs ever filed a discontinuance, and as the exclusive method of voluntary termination of an action, the Plaintiffs have therefore never terminated the action, instead filing a timely Complaint on August 13, 2014. 14. Admitted in part and denied in part. It is admitted that the caselaw states what is quoted in this paragraph. It is denied that Plaintiffs' Praecipe to Withdraw Writ of Summons was a discontinuance of the cause of action. 15. Denied. The case cited by Defendant in this paragraph is not applicable, as it applies to a discontinuance with prejudice filed by plaintiffs in order to effectuate a final order capable of appeal. In the instant case, Plaintiffs merely withdrew their Writ of Summons, then later filed the Complaint in the case, within the statue of limitations. Defendant's attempt to force Plaintiffs' to file a new cause of action is an attempt to push Plaintiffs outside of the statute of limitations. 16. Admitted in part and denied the part. It is admitted that a second action may be filed after a discontinuance, but it is denied that a discontinuance was filed in this matter. 17. Denied. By way of further answer, Plaintiffs never discontinued the first action, but merely followed the requirements of the bankruptcy court to temporarily put the case on hold while getting permission to pursue the matter. In addition, even if a discontinuance had been filed, which it was not, the court may strike the discontinuance "in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice. Pa.R.C.P. 229(c). WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's first preliminary objection. 18. Admitted. By way of further answer, in order to effectuate service Plaintiffs searched the records of Defendant's bankruptcy case; Mr. Wilcoxon's name and address was and still is listed as the mailing address for Defendant Keystone Biofuels, Inc. 19. Admitted. By way of further answer, Defendant is currently engaged in bankruptcy proceedings and their business location in Camp Hill, Pennsylvania has been closed. 20. Admitted. By way of further answer, Pennsylvania Rule of Civil Procedure 404(3) allows for service outside of the Commonwealth "in the manner provided by law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction." Maryland's Rules of Civil Procedure allow for service by Certified Mail, Restricted Delivery, which was completed on September 8, 2014 to Jerry Wilcoxon at his listed address in Maryland, which is on file with the bankruptcy court as the mailing address for the Defendant. 21. Plaintiffs are without sufficient facts or knowledge to admit or deny this statement. 22. Denied. By way of further answer, the citation by Defendant fails to indicate that the holding was in the context of a default judgment, where there was no indication that the complaint or notice of default was actually received by the Defendant, which is unlike the situation in the instant case. 23. Denied. By way of further answer, there was never a discontinuance filed in this matter, and there is a valid and properly filed Complaint pending. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's second preliminary objection. 24. Admitted. 25. Admitted. By way of further answer, the Plaintiffs believe that the facts will show that the safety cage was removed for merely aesthetic purposes, which could be found to rise to the level of "malicious, wanton, reckless, willful or oppressive," such as to justify the imposition of punitive damages. 26. Admitted. By way of further answer, the Plaintiffs believe that the facts will show that the actions of the Defendant rose significantly above mere negligence, such as to justify the imposition of an award of punitive damages. 27. Denied. By way of further answer, had the safety cage not been removed by the Defendants, when the glycerin hose surged Mr. Snyder would not have fallen at least 12 feet to the concrete below, causing life-threatening and permanent injuries. 28. Denied. By way of further answer, Plaintiffs believe that the issue of punitive damages is appropriate for a jury in this case. 29. Denied. By way of further answer, Plaintiffs believe that the Defendant's action in removing the safety cage does show a reckless indifference great enough to justify the award of punitive damages. 30. Denied. By way of further answer, Count III incorporates facts which are sufficient to justify the issue of punitive damages being sent to the jury. 31. Denied. By way of further answer, if the court cannot say with certainty that the Plaintiffs are not entitled to punitive damages, the preliminary objection must be dismissed. 32. Admitted in part and denied in part. It is admitted that Complaint states what the paragraph says it states. It is denied that the Complaint does not state a factual basis for punitive damages. 33. Denied. By way of further answer, the case cited by Defendant indicates that an inquiry into whether a loss is within policy coverage depends on the type of claim at issue, and is a question of law and may be decided by motion for summary judgment. Furthermore, Plaintiffs received a notice from the bankruptcy court indicating that Defendant has had a "recovery of assets" and that they needed to file a proof of claim by February 1, 2015. As Defendant could be liable for punitive damages on its own right, even without regard to the insurance coverage, and as Plaintiffs have received a notice that Defendant has recovered some assets, Plaintiffs argue that the punitive damages claim should not be dismissed because they may, after further investigation into Defendant's recovery of assets, seek leave of the bankruptcy court to pursue Defendant's own assets. 34. Denied. By way of further answer, until the court determines whether the Defendant's insurer did or did not indemnify it for an award of punitive damages, the claim for punitive damages may not be dismissed. WHEREFORE, Plaintiffs Gary and Bonnie Snyder respectfully request this Honorable Court to deny Defendant's final preliminary objection. Respectfully submitted, TURO ROBINSON: efibiob6kikvc_. Jessica E. Brewbaker, Esq. Attorney ID#85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 jbrewbaker@turolaw.com Counsel for Plaintiffs Gary L. and Bonnie M. Snyder Date: GARY L. SNYDER IN THE COURT OF COMMON PLEAS and CUMBERLAND COUNTY, BONNIE M. SNYDER, PENNSYLVANIA Plaintiffs vs. NO. 2013 -CV -3398 KEYSTONE BIOFUELS, INC. TRIAL BY JURY DEMANDED CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Plaintiffs' Response to Defendant's Preliminary Objections to Plaintiff's Complaint by first class mail, postage pre -paid on November 24, 2014 from Carlisle, Pennsylvania, to Defendant's counsel, addressed as follows: Adam L. Seiferth, Esq. Cipriani & Werner, P.C. 1011 Mumma Road, Suite 2012 Lemoyne, PA 17043 Respectfully submitted, TURO ROBINSON: di/nj-, Com.. K VUbr-41_ to Jessica E. Brewbaker, Esq. Attorney ID#85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 jbrewbaker@turolaw.com Counsel for Plaintiffs Gary L. and Bonnie M. Snyder JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 jbrewbaker@turolaw.com GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. KEYSTONE BIOFUELS, INC. ATTORNEY FOR PLAINTIFFS. = -- -taj":" -7.: -+ rn =.ear --tirr,. IN THE COURT OF COMM CUMBERLAND COUNTY, PENNSYLVANIA NO. 2013 -CV -3398 TRIAL BY JURY DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. By way of further answer, the Praecipe to Withdraw Writ of Summons was filed because the Plaintiffs were notified that the Defendant, Keystone Biofuels, Inc., was currently pending bankruptcy and that the withdrawal must be filed in order to avoid sanctions from the bankruptcy court. 4. Admitted. By way of further answer, Plaintiffs had been pursuing leave from the bankruptcy court to file a Complaint, and had been in discussions with the Defendants' insurance adjuster; after the leave from the bankruptcy court was granted, Plaintiffs' filed their Complaint. 5. Admitted. By way of further answer, Defendant's location in Camp Hill, Pennsylvania, was closed due to the pending bankruptcy. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Denied. The Praecipe to Withdraw Writ of Summons was not a discontinuance of the lawsuit, but rather was a temporary pause in the proceedings to avoid sanctions by the bankruptcy court while the Plaintiffs worked to be granted leave to pursue their claim. Furthermore, preliminary objections may be filed only for specified reasons, as set forth in Pa.R.C.P. 1028, and Defendant's first preliminary objection does not fall into any of those categories. 13. Admitted in part and denied in part. It is admitted that Pa. R.C.P. 229(a) says that a discontinuance is the exclusive method for voluntary termination of an action. It is denied that Plaintiffs ever filed a discontinuance, and as the exclusive method of voluntary termination of an action, the Plaintiffs have therefore never terminated the action, instead filing a timely Complaint on August 13, 2014. 14. Admitted in part and denied in part. It is admitted that the caselaw states what is quoted in this paragraph. It is denied that Plaintiffs' Praecipe to Withdraw Writ of Summons was a discontinuance of the cause of action. 15. Denied. The case cited by Defendant in this paragraph is not applicable, as it applies to a discontinuance with prejudice filed by plaintiffs in order to effectuate a final order capable of appeal. In the instant case, Plaintiffs merelywithdrew their Writ of Summons, then later filed the Complaint in the case, within the statue of limitations. Defendant's attempt to force Plaintiffs' to file a new cause of action is an attempt to push Plaintiffs outside of the statute of limitations. 16. Admitted in part and denied the part. It is admitted that a second action may be filed after a discontinuance, but it is denied that a discontinuance was filed in this matter. 17. Denied. By way of further answer, Plaintiffs never discontinued the first action, but merely followed the requirements of the bankruptcy court to temporarily put the case on hold while getting permission to pursue the matter. In addition, even if a discontinuance had been filed, which it was not, the court may strike the discontinuance "in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice. Pa.R.C.P. 229(c). WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's first preliminary objection. 18. Admitted. By way of further answer, in order to effectuate service Plaintiffs searched the records of Defendant's bankruptcy case; Mr. Wilcoxon's name and address was and still is listed as the mailing address for Defendant Keystone Biofuels, Inc. 19. Admitted. By way of further answer, Defendant is currently engaged in bankruptcy proceedings and their business location in Camp Hill, Pennsylvania has been closed. 20. Admitted. By way of further answer, Pennsylvania Rule of Civil Procedure 404(3) allows for service outside of the Commonwealth "in the manner provided by law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction." Maryland's Rules of Civil Procedure allow for service by Certified Mail, Restricted Delivery, which was completed on September 8, 2014 to Jerry Wilcoxon at his listed address in Maryland, which is on file with the bankruptcy court as the mailing address for the Defendant. 21. Plaintiffs are without sufficient facts or knowledge to admit or deny this statement. 22. Denied. By way of further answer, the citation by Defendant fails to indicate that the holding was in the context of a default judgment, where there was no indication that the complaint or notice of default was actually received by the Defendant, which is unlike the situation in the instant case. 23. Denied. By way of further answer, there was never a discontinuance filed in this matter, and there is a valid and properly filed Complaint pending. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's second preliminary objection. 24. Admitted. 25. Admitted. By way of further answer, the Plaintiffs believe that the facts will show that the safety cage was removed for merely aesthetic purposes, which could be found to rise to the level of "malicious, wanton, reckless, willful or oppressive," such as to justify the imposition of punitive damages. 26. Admitted. By way of further answer, the Plaintiffs believe that the facts will show that the actions of the Defendant rose significantly above mere negligence, such as to justify the imposition of an award of punitive damages. 27. Denied. By way of further answer, had the safety cage not been removed by the Defendants, when the glycerin hose surged Mr. Snyder would not have fallen at least 12 feet to the concrete below, causing life-threatening and permanent injuries. 28. Denied. By way of further answer, Plaintiffs believe that the issue of punitive damages is appropriate for a jury in this case. 29. Denied. By way of further answer, Plaintiffs believe that the Defendant's action in removing the safety cage does show a reckless indifference great enough to justify the award of punitive damages. 30. Denied. By way of further answer, Count III incorporates facts which are sufficient to justify the issue of punitive damages being sent to the jury. 31. Denied. By way of further answer, if the court cannot say with certainty that the Plaintiffs are not entitled to punitive damages, the preliminary objection must be dismissed. 32. Admitted in part and denied in part. It is admitted that Complaint states what the paragraph says it states. It is denied that the Complaint does not state a factual basis for punitive damages. 33. Denied. By way of further answer, the case cited by Defendant indicates that an inquiry into whether a loss is within policy coverage depends on the type of claim at issue, and is a question of law and may be decided by motion for summary judgment. Furthermore, Plaintiffs received a notice from the bankruptcy court indicating that Defendant has had a "recovery of assets" and that they needed to file a proof of claim by February 1, 2015. As Defendant could be liable for punitive damages on its own right, even without regard to the insurance coverage, and as Plaintiffs have received a notice that Defendant has recovered some assets, Plaintiffs argue that the punitive damages claim should not be dismissed because they may, after further investigation into Defendant's recovery of assets, seek leave of the bankruptcy court to pursue Defendant's own assets. 34. Denied. By way of further answer, until the court determines whether the Defendant's insurer did or did not indemnify it for an award of punitive damages, the claim for punitive damages may not be dismissed. WHEREFORE, Plaintiffs Gary and Bonnie Snyder respectfully request this Honorable Court to deny Defendant's final preliminary objection. Respectfully submitted, TURO ROBINSON: L J . •a E. Brewbaker, Esq. Att• ey ID#85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ibrewbaker@turolaw.com Counsel for Plaintiffs Gary L. and Bonnie M. Snyder Date: \k 2_14\ -� GARY L. SNYDER IN THE COURT OF COMMON PLEAS and CUMBERLAND COUNTY, BONNIE M. SNYDER, PENNSYLVANIA Plaintiffs vs. NO. 2013 -CV -3398 KEYSTONE BIOFUELS, INC. TRIAL BY JURY DEMANDED CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Plaintiffs' Response to Defendant's Preliminary Objections to Plaintiff's Complaint by first class mail, postage pre -paid on November 24, 2014 from Carlisle, Pennsylvania, to Defendant's counsel, addressed as follows: Adam L. Seiferth, Esq. Cipriani & Werner, P.C. 1011 Mumma Road, Suite 2012 Lemoyne, PA 17043 Respectfully submitted, TURO ROBINSON: (G- Jes E. Brewbaker, Esq. Atto ey ID#85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ibrewbaker@turolaw.com Counsel for Plaintiffs Gary L. and Bonnie M. Snyder 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) Gary L. Snyder and Bonnie M. Snyder vs. Keystone Biofuels, Inc. e-) r'rI rl C No. 3398 2013 DFrrn 0-1 I. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jessica E. Brewbaker, Esq. (Name and Address) 129 S. Pitt Street, Carlisle, PA 17013 (b) for defendants: Adam L. Seiferth, Esq. (Name and Address) 1011 Mumma Rd, Suite 201, Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 19, 2014 Date: 11'zt-k\\, i•nbture Print your name Gary L. & Bonnie M. Snyder 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. V9 7C d;ti6d3 x"3/35 JESSICA E. BREWBAKER, ESQUIRE Turo Robinson I.D. No. 85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 jbrewbaker@turolaw.com GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. KEYSTONE BIOFUELS, INC. ATTORNEY FOR PLAINTIFFS IN THE COURT OF COMMON PL)S • CUMBERLAND COUNTY, r c13 rn PENNSYLVANIA z co �` r NO. 2013 -CV -3398 TRIAL BY JURY DEMANDED -�C PLAINTIFFS' MOTION TO WITHDRAW/STRIKE THE WITHDRAW OF WRIT OF SUMMONS AND NOW, comes the Plaintiffs, Gary L. Snyder and Bonnie M. Snyder, by and through their attorney, Jessica E. Brewbaker, and hereby moves as follows: 1. A Writ of Summons was filed in this case on June 12, 2013. 2. Plaintiffs' counsel, in the form of Paul Ferguson, was then notified that the Defendant was in bankruptcy and that the Writ of Summons must be withdrawn, or there would be sanctions issued by the bankruptcy court. 3. A Praecipe to Withdraw Writ of Summons was filed, signed by Attorney Ferguson, on July 2, 2013. 4. On March 3, 2014, Plaintiffs were granted leave from the bankruptcy court to pursue the matter. (Exhibit A) 5. Following discussions with the insurance adjuster, a Complaint was filed on August 13, 2014. 6. Defendant, by and through its counsel Adam L. Seiferth, Esq. has filed Preliminary Objections, arguing in part that the Withdraw of Writ of Summons was a discontinuance of the entire case. 7. While Plaintiffs do not agree that the Withdraw of Writ of Summons was a discontinuance of the case as they continued to move forward with their action since it was originally filed in June of 2013, they are requesting to withdraw/strike the Withdraw of Writ of Summons that was filed by Attorney Ferguson on July 2, 2013. 8. Even if the Court were to find that the Withdraw of Writ of Summons operated as a discontinuance, the Court may strike the discontinuance "in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice. Pa.R.C.P. 229(c). 9. Plaintiffs are requesting that this Motion be granted and therefore the case proceed on the Complaint filed on August 13, 2014. 10. Counsel for the Defendant, Adam L. Seiferth, Esq. does not concur with this Motion. WHEREFORE for all of the foregoing reasons, Plaintiffs request that the Court enter an order withdrawing/striking the Withdraw of Writ of Summons filed on July 2, 2013. Respectfully submitted, TURO ROBINSON: a E. Brewbaker, Esq. Attorney ID#85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 ibrewbaker@turolaw.com Counsel for Plaintiffs Gary L. and Bonnie M. Snyder Date: `2 \ \11-‘ GARY L. SNYDER IN THE COURT OF COMMON PLEAS and CUMBERLAND COUNTY, BONNIE M. SNYDER, PENNSYLVANIA Plaintiffs vs. NO. 2013 -CV -3398 KEYSTONE BIOFUELS, INC. TRIAL BY JURY DEMANDED CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Plaintiffs' Motion to Withdraw/Strike the Withdraw of Writ of Summons by first class mail, postage pre -paid on December 1, 2014 from Carlisle, Pennsylvania, to Defendant's counsel, addressed as follows: Adam L. Seiferth, Esq. Cipriani & Werner, P.C. 1011 Mumma Road, Suite 2012 Lemoyne, PA 17043 Respectfully submitted, TURO ROBINSON: kess ca E. Brewbaker, Esq. Mt ey ID#85758 129 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 jbrewbaker@turolaw.com Counsel for Plaintiffs Gary L. and Bonnie M. Snyder GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs v. _1 THE PROTHONJ T,;;; 2014 DEC -8 PM 3: 3 l CUMBERLAND COUNTY PENNSYLVANIA €ountp:at QCumbertaub IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT KEYSTONE BIOFUELS, INC., 13-3398 CIVIL TERM Defendant JURY TRIAL DEMANDED IN RE: MOTION TO WITHDRAW/STRIKE THE WITHDRAWAL OF WRIT OF SUMMONS ORDER OF COURT AND NOW, this 8th day of December 2014, upon consideration of the Motion to Withdraw/Strike the Withdrawal of Writ of Summons, a RULE is issued upon Defendant to show cause as to why the requested relief should not be granted. PLAINTIFFS shall effectuate service of this Order of Court upon Defendant and shall file proof of service. Defendant SHALL include a proposed Order with any response. The Prothonotary is DIRECTED to return any filed response to the Court. RULE RETURNABLE twenty (20) days from the date of service. Di ribution: ica E. Brewbaker, Esq. —Adam L. Seiferth, Es•, � as iZ�d t f/34/4( Thomas A. Placey C.P.J. GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs vs. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : NO. 13 — 3398 CIVIL ACTION : CIVIL ACTION - LAW KEYSTONE BIOFUELS, INC., Defendant : JURY TRIAL DEMANDED PROOF OF SERVICE I hereby certify that I served a true and correct copy of the December 8, 2014, Order of Court, by first class mail, postage pre -paid, on December 11, 2014, from Carlisle, Pennsylvania, addressed as follows: M\k\,\H Date Adam L. Seiferth, Esq. Cipriani & Werner, P.C. 1011 Mumma Road, Suite 2012 Lemoyne, PA 17043 TURO ROBINSON Attorneys at Law C3 a E. Brewbaker Sufi eme Ct. No. 85758 129 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for Plaintiffs Ci • f PROTf-TONG , 2014 DEC -8 Pt1 3: 37 CUMBERLAND COUNTY PENNSYLVANIA GARY L. SNYDER and BONNIE M. SNYDER, Plaintiffs v. KEYSTONE BIOFUELS, INC., Defendant Count? et Cambertanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3398 CIVIL TERM JURY TRIAL DEMANDED IN RE: MOTION TO WITHDRAW/STRIKE THE WITHDRAWAL OF WRIT OF SUMMONS ORDER OF COURT AND NOW, this 8th day of December 2014, upon consideration of the Motion to Withdraw/Strike the Withdrawal of Writ of Summons, a RULE is issued upon Defendant to show cause as to why the requested relief should not be granted. PLAINTIFFS shall effectuate service of this Order of Court upon Defendant and shall file proof of service. Defendant SHALL include a proposed Order with any response. The Prothonotary is DIRECTED to return any filed response to the Court. RULE RETURNABLE twenty (20) days from the date of service. Thomas A. Placey Distribution: Jessica E. Brewbaker, Esq. Adam L. Seiferth, Esq. C.P.J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION GARY L. SNYDER and BONNIE M. ) CASE NO: 2013 -CV -3398 SNYDER, Plaintiffs v. KEYSTONE BIOFUELS, INC., Defendant ANSWER OF DEFENDANT, KEYSTONE BIOFUELS, INC., TO PLAINTIFF'S MOTION TO WITHDRAWAL/STRIKE THE WITHDRAWAL OF WRIT OF SUMMONS AND NOW, comes the Defendant, Keystone Biofuels, Inc. ("Keystone"), by and through its counsel Cipriani & Werner, P.C., and files this Answer to Plaintiffs' Motion to Withdrawal/ Strike the Withdrawal of Writ of Summons as follows: 1. Admitted. Defendant, Keystone, admits the allegations of paragraph 1. 2. Denied. After reasonable investigation, Defendant, Keystone, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 2, and the same are, therefore, denied. Strict proof thereof demanded. 3. Admitted in part and denied in part. Defendant admits a "Praecipe to Withdrawal Writ of Summons" was filed of record on July 2, 2013. However, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the claimed signature on the Praecipe to Withdrawal Writ of Summons. By way of further answer, Jessica E. Brubaker, Esquire is also identified as counsel of record for Plaintiffs on the Praecipe to Withdrawal Writ of Summons. (See, Docket). By way of further Answer, the Praecipe to Withdraw Writ of Summons operated, and can only be construed as, a discontinuance of the lawsuit pursuant to Pa.R.C.P. 229(a). 4. Denied as stated. Plaintiff's Motion does not attach an Exhibit A. By way of further Answer, on March 3, 2014, upon Motion of Plaintiffs, the Bankruptcy Court modified the automatic stay to allow Plaintiffs to proceed with their claim against Defendant, Keystone, to the extent of any available insurance proceeds. Accordingly, Plaintiff had from March 3, 2014 until September 21, 2014, at which time the statue of limitations expired, to file a second lawsuit pursuant to Pa.R.C.P. 231(a). See, Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476.(Pa. Super. 2014); Marra v. SmithKline Beecham Corporation, 789 A.2d 704 (Pa. Super. 2001). 5. Admitted in part and denied in part. Defendant, Keystone, admits that Plaintiffs filed a Complaint on August 13, 2014. However, the Complaint was filed to the docket of the lawsuit that Plaintiffs previously discontinued and, consequently, this Court no longer had jurisdiction over the action. See, Motley Crew, LLC, 93 A.3d at 476 (Pa. Super. 2014). By way of further answer, Defendant, Keystone, is without knowledge or information sufficient to form belief as to the truth of the averments concerning "discussions with the insurance adjuster", and the same are, therefore, denied. To the extent a further answer is required, any alleged discussions between Plaintiffs' counsel and an unidentified insurance adjuster are irrelevant to Plaintiffs' Motion. 6. Admitted in part and denied in part. Defendant, Keystone, admits that through its counsel, it is filed Preliminary Objections to Plaintiffs Complaint raising several issues therein, including that the Praecipe to Withdraw Writ of Summons was a discontinuance of the action, such that the Complaint subsequently filed was a nullity because the Court no longer had jurisdiction. Additionally, Defendant, Keystone, raised a Preliminary objection on the basis that it was not, and has not yet been, properly served. (See, Docket. Defendant, Keystone, hereby incorporates its Preliminary Objections to Plaintiffs' Complaint pursuant to Pa.R.C.P. 1019(g)). By way of further Answer, the Preliminary Objections were presented in Argument Court on December 19, 2014, and to date, have not been ruled upon. 7. Denied. It is specifically denied that the Withdrawal of Writ of Summons was anything other than a discontinuance of the case. (See, Preliminary Objections of Defendant, Keystone, to Plaintiffs' Complaint). Strict proof demanded. Further, it is specifically denied that Plaintiffs "continued to move forward with their action" since it was originally filed in June of 2013. To the contrary, nothing occurred on the docket subsequent to the filing of the Praecipe to Withdraw Writ of Summons until Plaintiffs filed a Complaint upon the discontinued action on August 13, 2014. By way of further Answer, Plaintiffs have failed to file a timely second action pursuant to Pa.R.C.P. 231(a), despite having from March 3, 2014 until September 21, 2014 to do so. To the extent a further answer is required, Defendant, Keystone, incorporates its answer to paragraphs 3, 4, and 5 as though fully set forth herein at length. 8. Admitted in part and denied as stated. Defendant, Keystone, admits that Pa.R.C.P. 229(c) permits the Court to strike a discontinuance "in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense and/or prejudice." However, Defendant, Keystone, has been, and may be subjected to, unreasonable inconvenience, vexation, harassment, expense and/or prejudice due to the discontinuance Plaintiffs filed approximately one and a half years ago, such that Plaintiffs Motion should be denied. See, e.g., Nastasiak v. Scoville Enterprises, Ltd., 421 Pa. Super. 542, 618 A.2d 471 (1993). By way of further Answer, the discontinuance, accompanied by the excessive delay in the filing of Plaintiff's present Motion to Strike/Withdraw Writ of Summons, will result in prejudice to Defendant, Keystone, if granted, because of: a. The loss of pertinent documents, including leases, bills of lading, maintenance records, and other documentary evidence critical to the defense of this action; b. The unavailability of witnesses and/or former employees over whom Defendant, Keystone, no longer controls or has the ability to control; c. The unavailability of the facility which had been leased by Defendant, Keystone, including pertinent equipment appurtenant thereto; d. The prospect of defending a case which is now presently barred by the statute of limitations and where Plaintiffs have failed to effectuate service of process over Defendant, Keystone; e. The potential for the incursion of delay damages pursuant to Pa.R.C.P. 238, where Plaintiffs withdrew the Writ of Summons and, consequently, Defendant, Keystone could not proceed with the action; and, f. For additional reasons which Defendant, Keystone, respectfully requests the opportunity to developed of record. 9. Admitted. Defendant, Keystone, admits the allegations of paragraph 9. WHEREORE, Defendant, Keystone Biofuels, Inc., respectfully requests that this Honorable court enter an Order denying Plaintiff's Motion to Withdrawal/Strike the Withdrawal of Writ of Summons. In the alternative, Defendant, Keystone Biofuels, Inc., respectfully requests a reasonable opportunity conduct discovery/depositions in order to develop a record to establish the unreasonable inconvenience, vexation, harassment, expense, and/or prejudice contemplated by Pa.R.C.P. 229(c) should Plaintiffs' Motion be granted. BY: Date: 1u2 -Z5 Respectfully submitted, CIPRIANI & WERNER, P.C. ADAM L. SEIFERTH, ESQU Attorney ID# 89073 1011 Mumma Road, Suite 2 Lemoyne, PA 17043 (717) 975-9600 aseiferth@c-wlaw.com Counsel for the Defendant, KEYSTONE BIOFUELS, INC. CERTIFICATE OF SERVICE That counsel for the Defendant, KEYSTONE BIOFUELS, INC., hereby certifies that a true and correct copy of the foregoing ANSWER TO PLAINTIFFS' MOTION TO WITHDRAW/STRIKE PRAECIPE TO WITHDRAW WRIT OF SUMMONS has been served on all counsel of record, by first class mail, postage pre -paid, according to the Pennsylvania Rules of Civil Procedure, on the W2 " day of / 6Gfm',,.-Ret( , 2014. Jessica E. Brewbaker, Esquire Turo Robinson 129 South Pitt Street Carlisle, PA 17013 (Counsel for Plaintiffs) BY: Respectfully submitted, CIPRIANI & WERNER, P.C. ADAM L. SEIFERTH, ESQ Counsel for the Defendant, KEYSTONE BIOFUELS,