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HomeMy WebLinkAbout13-6646 Supreme Co = ki,14 •nnsylvania Cour leas For Prothonotary Use Only: tv" �„ t Docket No: f .r Cu � ,. ' Count y The infbrnration collected on this form is used solely tor court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules ot'court. • Commencement of Action: E3 Complaint 0 Writ of Summons 0 Petition 0 Transfer from Another Jurisdiction 0 Declaration of Taking E Lead Plaintiff's Name: Lead Defendant's Name: Commonwealth of Pennsylvania, Dept. of Transportation A& G Trucking Dollar Amount Requested: Owithin arbitration limits I Are money damages requested? M Yes 0 No (check one) fa outside arbitration limits 3 T Is this a Class Action Suit? 0 Yes gi No Is this an MDJAppeal? 0 Yes EZ No Name of Plaintiff/Appellant's Attorney: Michael D.Alsher,Asst. Counsel, PennDOT 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 O Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment E3 Motor Vehicle 0 Debt Collection:Other 0 Board of Elections 0 Nuisance Dept.of Transportation 0 Premises Liability Statutory Appeal:Other s 0 Product Liability(does not include mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C 0 Other: 0 Employment Dispute:Other 0 Zoning Board 0 Other: 0 Other: • MASS TORT 0 Asbestos N 0 Tobacco O Toxic Tort-DES 0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: 0 Ejectment 0 Common Law/Statutory Arbitration 0 Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY _ 0 Mortgage Quo Warranto Foreclosure:Commercial 0 0 Dental 0 Partition 0 Replevin 0 Legal 0 Quiet Title 0 Other: 0 Medical 0 Other: 0 Other Professional: Updated 1/1/2011 : j ti fJ l l i.lF it ij'. j IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,,,,, PENNSYLVANIA NOV - 2: (3tRLh4-4D COUNTY COMMONWEALTH OF PENNSYLVANIA, ry N' • 'ANIA • DEPARTMENT OF TRANSPORTATION, • Plaintiff �J „r P„L((0 Cie-(Ji vs. DOCKET NO. I ✓ (AL A & G TRUCKING, LONA LEV d/b/a CIVIL ACTION A & G TRUCKING and • VICTOR NIKITCHUK, • • Defendants. N O T I C E YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF. YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THTS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, Pennsylvania (717) 249-3166 62) COW- , CL // 51 a9Sos IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, • DEPARTMENT OF TRANSPORTATION, • Plaintiff vs. DOCKET NO. A & G TRUCKING, LONA LEV d/b/a CIVIL ACTION A & G TRUCKING AND _ VICTOR NIKITCHUK, • Defendants. COMPLAINT AND NOW, this 4th day of November, 2013, comes the plaintiff, Commonwealth of Pennsylvania, Department of. Transportation, by its counsel, and files this Complaint against the named parties, and in support thereof avers as follows: 1. The plaintiff is the Commonwealth of Pennsylvania, Department of Transportation, an executive agency with headquarters in the Commonwealth Keystone Building, 400 North Street, 8th Floor, Harrisburg, Pennsylvania 17120-0096. 2. The defendant is A & G Trucking, a company with a mailing address at P.O. Box 399, Salida, California, 95368-0399. 3. Another defendant is Lona Lev, an individual doing business as A & G Trucking, whose current address is 144 Sea Gull Court, Ripon, California 95366-9212 . 4. Also a defendant is Victor Nikitchuk, whose current address is 367 Keely Drive, Roseville, California, 95678-6129. 5. On August 15, 2003, at approximately 6: 00 AM, a tractor- trailer driven by defendant Victor Nikitchuk was traveling east on State Route 70 in Speers Borough, Washington County, when the tractor- trailer struck the abutment, supports and parapet of the Belle Vernon Bridge. 6. The Belle Vernon Bridge is owned and maintained by the plaintiff Pennsylvania Department of Transportation (PennDOT) . 7. The tractor-trailer that struck the Belle Vernon Bridge as described above was owned by defendant A & G Trucking and/or defendant Lona Lev d/b/a A & G Trucking. 8. At the time of the accident defendant Victor Nikitchuk was an employee of defendant A & G Trucking and/or defendant Lona Lev d/b/a A & G Trucking. 9. PennDOT hired a contractor, Gregori Construction and 2 Engineering, Inc. , to repair the damage to the bridge caused by the accident. The total cost to repair the damage, including costs for design, inspection, consultation and materials testing, was $667,269.00, and A & G Trucking was invoiced for that amount. 10. PennDOT has made numerous demands upon defendant A & G Trucking for payment of the invoice, but the invoice has not been paid. COUNT I - NEGLIGENCE: VICTOR NIKITCHUK 11. PennDOT incorporates by reference the allegations in paragraphs 1 through 10. 12. At the time of the accident the negligence of defendant Victor Nikitchuk consisted of the following: (a) failing to keep his vehicle under proper and adequate control; (b) failing to keep a careful and diligent watch on the road; (c) operating his vehicle too fast for conditions; (d) failing to slow or bring his vehicle to a stop so as to avoid the impact with the parts of the bridge; (e) operating his vehicle in a careless, reckless and negligent manner; 3 (f) failing to use due care under the circumstances; (g) failing to take evasive action in order to avoid impacting with the bridge; (h) failing to comply with the provisions of the Pennsylvania Vehicle Code relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence; and (i) such other acts or omissions as may be revealed in the course of discovery, or at the trial of this case. 13. Defendant Victor Nikitchuk' s acts of negligence damaged PennDOT' s bridge, which cost PennDOT $667,269. 00 to repair. WHEREFORE, the plaintiff, Commonwealth of Pennsylvania, Department of Transportation, seeks judgment in its favor and against defendant Victor Nikitchuk in the amount of $667,269. 00, plus interest, costs and such other relief as the Court deems fit. COUNT II — VICARIOUS LIABILITY/RESPONDEAT SUPERIOR: A & G TRUCKING 14. PennDOT incorporates by reference the allegations in paragraphs 1 through 13. 15. At the time of the accident, defendant Victor Nikitchuk was subject to defendant A & G Trucking' s exclusive right of direction and 4 control over his actions and over the possession and operation of the vehicle that struck the Belle Vernon Bridge. 16. At the time of the accident, defendant Victor Nikitchuk was acting within the scope of his employment with defendant A & G Trucking. 17. At all times material hereto, a master-servant relationship existed between defendant Victor Nikitchuk and defendant A & G Trucking. 18. Due to the master-servant relationship that existed between defendant Victor Nikitchuk and defendant A & G Trucking, A & G Trucking is vicariously liable for the damages caused by the negligent acts of its employee, Victor Nikitchuk. WHEREFORE, the plaintiff, Commonwealth of Pennsylvania, Department of Transportation, seeks judgment in its favor and against defendant Victor Nikitchuk and his employer, A & G Trucking, jointly and severally, in the amount of $667,269.00, plus interest, costs and such other relief as the Court deems fit. COUNT III - VICARIOUS LIABILITY/RESPONDEAT SUPERIOR: LONA LEV d/b/a A & G TRUCKING 19. PennDOT incorporates by reference the allegations in paragraphs 1 through 18. 5 20. At the time of the accident, defendant Victor Nikitchuk was subject to defendant Lona Lev, d/b/a A & G Trucking' s exclusive right of direction and control over his actions and over the possession and operation of the vehicle that struck the Belle Vernon Bridge. 21. At the time of the accident, defendant Victor Nikitchuk was acting within the scope of his employment with defendant Lona Lev, d/b/a A & G Trucking. 22. At all times material hereto, a master-servant relationship existed between defendant Victor Nikitchuk and defendant Lona Lev d/b/a A & G Trucking. 23. Due to the master-servant relationship that existed between defendant Victor Nikitchuk and defendant Lona Lev d/b/a A & G Trucking, Lona Lev d/b/a A & G Trucking is vicariously liable for the damages caused by the negligent acts of its employee, Victor Nikitchuk. WHEREFORE, the plaintiff, Commonwealth of Pennsylvania, Department of Transportation, seeks judgment in its favor and against defendant Victor Nikitchuk and his employer, Lona Lev d/b/a A & G Trucking, jointly and severally, in the amount of $667,269.00, plus interest, costs and such other relief as the Court deems fit. 6 Respectfully submitted, Date: J04 t •-o1.3 -1 I j Michael D. Alsher Assistant Counsel PA Supreme Court I.D. No. 37298 Office of Chief Counsel Department of Transportation Commonwealth of Pennsylvania P.O. Box 8212 Harrisburg, Pennsylvania 17105-8212 Telephone: (717) 787-5804 Fax: (717) 772-2741 7 • VERIFICATION I, Joseph J. Szczur, P.E. , District Executive, Engineering District 12-0, Pennsylvania Department of Transportation, Uniontown, Pennsylvania, do hereby state that I read the foregoing COMPLAINT, and that the facts set forth therein are true and correct, to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C. S. §4904 (relating to unsworn falsification to authorities) . Dated: 11;2/0 AJoseph J. Szczur, P.E. District Executive Engineering District 12-0 825 North Gallatin Avenue Montoursville, PA 15401-0459 Department of Transportation Commonwealth of Pennsylvania a MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Brooks R. Foland, Esquire y U t q Attorney I.D. No. 70102. 100 Corporate Center Drive, Suite 201 �'%Pg PM Camp Hill, PA 17011 PE jjjscotINT,GTelephone: (717) 651-3714 L /y/A brfoland(a�,mdwcg com Attorney for Defendants COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, DEPARTMENT OF CUMBERLAND COUNTY, PENNSYLVANIA TRANSPORTATION, NO. 13-6646 Plaintiff CIVIL ACTION—LAW V. A&G TRUCKING, LONA LEV d/b/a A&G TRUCKING AND VICTOR NIKITCHUK, Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance for Defendants A&G Trucking, Lona Lev d/b/a A&G Trucking and Victor Nikitchuk in the above-captioned matter. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN OGGIN BY: Brooks R. Fol squire Attorney I.D. No. 70102 Attorney for Defendan Date: � b V� 05/1115331.v 1 Ij CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document has been served upon the following known counsel and parties of record this 30th day of April, 2014 via United States First-Class Mail, postage prepaid: Michael D. Alsher, Esquire Assistant Counsel PA Department of Transportation Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN BY: Brooks R. F Attorney I.D. No. 70102 Attorney for Defendants 05/1215157.vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Plaintiff v. CIVIL ACTION - LAW I (424 NO. 492.30-00103 A&G TRUCKING, LONA LEV, 2 , d/b/a A&G TRUCKING and; VICTOR NIKITCHUK, r� f-T'•�-. Defendants. --<-&-" ' RETURN OF SERVICE ...:-1:-c r-, CD -µ BY MAIL —' :- --f ,--.f r~., } -4( --J Filed on behalf of Plaintiff, Commonwealth of Pennsylvania, Department of Transportation Counsel of record for this party: MICHAEL D. ALSHER ASSISTANT COUNSEL PA I.D. # 37298 PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Tel: 717-705-1271 Fax: 717-772-2741 Email: malsher@state.pa.us IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Plaintiff vs. A & G TRUCKING, LONA LEV d/b/a A & G TRUCKING and VICTOR NIKITCHUK, Defendants. DOCKET NO. 40230-00103 CIVIL ACTION RETURN OF SERVICE BY MAIL On November 14, 2013, I mailed a true copy of the Complaint by certified mail, return receipt requested, to defendant A&G Trucking, at its address. A representative of the defendant signed the return receipt upon delivery and the receipt, attached here as Exhibit A, was returned by the post office on November 21, 2013. I make these statements pursuant to 18 Pa. Cons. Stat. Ann. §4904 relating to unsworn falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. Date: atoil ptAttbu 0OMMMYIONWEALTH OF PODIS11YANMA NOTARIAL SEA FAME 1 BROWN -HATCHER, NOIMYPUBUC SUSQUEHANNA TOWNSM P,, DAUPHIN 000N1Y MY COMMISSION MIRES JANUARY 21. 2011 Michael D. Alsher Assistant Counsel PA Supreme Court I.D. No. 37298 Office of Chief Counsel Department of Transportation Commonwealth of Pennsylvania P.O. Box 8212 Harrisburg, Pennsylvania 17105-8212 Telephone: (717)787-5804 Fax: (717)772-2741 SENDER: COMPLETE THIS SECTION ■ Complete items 1, 2, and 3. Also complete r 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. p a,` 1. Addressed to: f Uck,n 9 PD B3( 3p7 CA 5362/- 03q/ COMPLETE THIS SECTION ON DELIVERY A. Signatur v �JrSC11 B. Received by (Printed Na e) TZ, 5(4 LIG& -eI ❑ Agent 1 El Addressee C. Date of Delivery I- I —I D. Is delivery address different from item 1? ❑ Yes If YES, enter delivery address below: V' No 3. Service Type )irCertified Mail El Express Mail 0 Registered `Return Receipt for Merchandise + ❑ Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service label) 7003 1680 0005 1268 4364 PS Form 3811, February 2004 m Domestic Return Receipt 102595-02-M-1540 U.S. Postal Servicer. CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) For delivery information visit our website at www.usps.com® Postage Certified Fee Return Reciept Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Postmark Here Sent To Lrj\y)� • Street, Apt. No.;� or PO Box No. ,T—t%Dc City, State, ZIP+4 T� PS Form 3800, June 2002 a 5 6 See Reverse for Instructions F 'G (-( 13 t ( /1 CERTIFICATE OF SERVICE I, Michael D. Alsher, Assistant Counsel, do hereby certify that I have on May , 2014, served a true and correct copy of the foregoing Plaintiffs Return of Service by Mail upon the following person at the following address by sending same in the United States mail, first class, postage paid: Brooks Foland, Esquire 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Attorney for Defendants t-rcutba) Michael D. Alsher Assistant Counsel PA Attorney No. 37298 PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105 Tel: (717)705-1271 Fax: (717)772-2741 Email: malsher@pa.gov IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Plaintiff V. A&G TRUCKING, LONA LEV, d/b/a A&G TRUCKING and VICTOR NIKITCHUK, Defendants. CIVIL ACTION - LAW 13-W46 NO. 44:44344-0ft105 RETURN OF SERVICE BY MAIL Filed on behalf of Plaintiff, Commonwealth of Pennsylvania, Department of Transportation Counsel of record for this party: MICHAEL D. ALSHER ASSISTANT COUNSEL PA I.D. # 37298 PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Tel: 717-705-1271 Fax: 717-772-2741 Email: malsher@state.pa.us • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Plaintiff VS. : DOCKET NO. 40230-00103 A & G TRUCKING, LONA LEV d/b/a : CIVIL ACTION A & G TRUCKING and VICTOR NIKITCHUK, Defendants. RETURN OF SERVICE BY MAIL On November 14, 2013, I mailed a true copy of the Complaint by certified mail, return receipt requested, to defendant Lona Lev, d/b/a A&G Trucking, at her address. A representative of the defendant signed the return receipt upon delivery and the receipt, attached here as Exhibit A, was returned by the post office shortly thereafter. I make these statements pursuant to 18 Pa. Cons. Stat. Ann. §4904 relating to unsworn falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. Date: a „do—alP Michael D. Alsher Assistant Counsel PA Supreme Court I.D. No. 37298 Office of Chief Counsel Department of Transportation Commonwealth of Pennsylvania P.O. Box 8212 Harrisburg, Pennsylvania 17105-8212 Telephone: (717)787-5804 Fax: (717)772-2741 SENDER: COMPLETE THIS SECTION III 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. • Attara-',:iis card to the back of the mailpiece, —.- or on the front if space permits. 1. Article Addressed to: 401)a- L' )512 NLI 5ga 6c/// Covit Rp1-0 CA 5.5%6 COMPLETE THIS SECTION ON DELIVERY A. Signature X - B. Received by ( Printed Name) 0 Agent 0 Addressee C. Date of Delivery . D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No 3 S rvice Type Certified Mail 0 press Mail 0 Registered etum Receipt for Merchandise o Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service label) 7003 1680 0005 1268 4340 PS Form 3811, February 2004 Domestic Return Receipt - 102595 -02 -M -154V U.S. Postal ServiceTM CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Doverage Provided) 7003 1680 OOOS Postage Certified Fee Return Reciept Fee (Endorsement Required Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Postmark Here TI E"-xi1(817 A CERTIFICATE OF SERVICE I, Michael D. Alsher, Assistant Counsel, do hereby certify that I have on May 0 , 2014, served a true and correct copy of the foregoing Plaintiff's Return of Service by Mail upon the following person at the following address by sending same in the United States mail, first class, postage paid: Brooks Foland, Esquire 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Attorney for Defendants Michael D. Alsher Assistant Counsel PA Attorney No. 37298 PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105 Tel: (717)705-1271 Fax: (717)772-2741 Email: malsher@pa.gov IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, • DEPARTMENT OF TRANSPORTATION, • Plaintiff • vs. DOCKET NO. 13-6646 Civil A & G TRUCKING and CIVIL ACTION VICTOR NIKITCHUK, Defendants. (NDy AMENDED COMPLAINT AND NOW, comes the plaintiff, Commonwealth of Pennsylvania, Department of Transportation, by its counsel, and files this Amended Complaint against the named parties, and in support thereof avers as follows : 1 . The plaintiff is the Commonwealth of Pennsylvania, Department of Transportation, an executive agency with headquarters in the Commonwealth Keystone Building, 400 North Street, 8th Floor, Harrisburg, Pennsylvania 17120-0096. 2 . The defendant is A & G Trucking, a company with a mailing address at P.O. Box 399, Salida, California, 95368-0399. 3. Also a defendant is Victor Nikitchuk, whose current address is 367 Keely Drive, Roseville, California, 95678-6129. } 4 . On August 15, 2003, at approximately 6: 00 AM, a tractor- trailer driven by defendant Victor Nikitchuk was traveling east on State Route 70 in Speers Borough, Washington County, when, as a result of Victor Nikitchuk' s negligence, the tractor-trailer struck the abutment, supports and parapet of the Belle Vernon Bridge. 5. The Belle Vernon Bridge is owned and maintained by the plaintiff Pennsylvania Department of Transportation (PennDOT) . 6. The tractor-trailer that struck the Belle Vernon Bridge as described above was owned by defendant A & G Trucking. 7 . At the time of the accident defendant Victor Nikitchuk was an employee of defendant A & G Trucking. 8 . PennDOT hired a contractor, Gregori Construction and Engineering, Inc. , to repair the damage to the bridge caused by the accident. The total cost to repair the damage, including costs for design, inspection, consultation and materials testing, was $667,269. 00, and A & G Trucking was invoiced for that amount. 9. PennDOT has made numerous demands upon defendant A & G Trucking for payment of the invoice, but the invoice has not been paid. 2 COUNT I — NEGLIGENCE: VICTOR NIKITCHUK 10 . PennDOT incorporates by reference the allegations in paragraphs 1 through 9. 11 . At the time of the accident the negligence of defendant Victor Nikitchuk consisted of the following: (a) failing to keep his vehicle under proper and adequate control; (b) failing to keep a careful and diligent watch on the road; (c) operating his vehicle too fast for conditions; (d) failing to slow or bring his vehicle to a stop so as to avoid the impact with the parts of the bridge; (e) operating his vehicle in a careless, reckless and negligent manner; (f) failing to use due care under the circumstances; (g) failing to take evasive action in order to avoid impacting with the bridge; (h) failing to comply with the provisions of the Pennsylvania Vehicle Code relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence; and (i) such other acts or omissions as may be revealed in the course of discovery, or at the trial of this case. 3 12 . Defendant Victor Nikitchuk' s acts of negligence damaged PennDOT' s bridge, which cost PennDOT $667,269.00 to repair. WHEREFORE, the plaintiff, Commonwealth of Pennsylvania, Department of Transportation, seeks judgment in its favor and against defendant Victor Nikitchuk in the amount of $667,269. 00, plus interest, costs and such other relief as the Court deems fit. COUNT II - VICARIOUS LIABILITY/RESPONDEAT SUPERIOR: A & G TRUCKING 13. PennDOT incorporates by reference the allegations in paragraphs 1 through 12 . 14 . At the time of the accident, defendant Victor Nikitchuk was subject to defendant A & G Trucking' s exclusive right of direction and control over his actions and over the possession and operation of the vehicle that struck the Belle Vernon Bridge. 15. At the time of the accident, defendant Victor Nikitchuk was acting within the scope of his employment with defendant A & G Trucking. 16. At all times material hereto, a master-servant relationship existed between defendant Victor Nikitchuk and defendant A & G 4 Trucking. 17 . Due to the master-servant relationship that existed between defendant Victor Nikitchuk and defendant A & G Trucking, A & G Trucking is vicariously liable for the damages caused by the negligent acts of its employee, Victor Nikitchuk. WHEREFORE, the plaintiff, Commonwealth of Pennsylvania, Department of Transportation, seeks judgment in its favor and against defendant Victor Nikitchuk and his employer, A & G Trucking, jointly and severally, in the amount of $667,269.00, plus interest, costs and such other relief as the Court deems fit. Respectfully submitted, Date: 1° 114.00t 1+d4.9 / Michael D. Alsher Assistant Counsel PA Supreme Court I .D. No. 37298 Office of Chief Counsel Department of Transportation Commonwealth of Pennsylvania P.O. Box 8212 Harrisburg, Pennsylvania 17105-8212 Telephone: (717) 787-5804 Fax: (717) 772-2741 5 • VERIFICATION I, Michael D. Alsher, Assistant Counsel, Pennsylvania Department of Transportation, do hereby state that I read the foregoing AMENDED COMPLAINT, and that the facts set forth therein are true and correct, to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S. §4904 (relating to unsworn falsification to authorities) . Dated: ld l t`a-0 L4 4 • Michael D. Alsher Assistant Counsel PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105 Department of Transportation Commonwealth of Pennsylvania .03 -1464 CERTIFICATE OF SERVICE I, Michael D. Alsher, Esquire, certify that I served a true and correct copy of the foregoing Amended Complaint upon the person named immediately below, by U. S. First Class Mail on the 1st day of October, 2014 . Brooks Foland, Esquire 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 /, :� . Michael D. Alsher Assistant Counsel PA Department of Transportation Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Plaintiff Attorney No. 37298 • ; 5 �;CF MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Brooks R. Foland, Esquire PA Attorney I.D. No. 70102 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Telephone: (717) 651-3714; Fax 717-651-3707 brfoland@mdwcg.com Attorney for Defendants COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Plaintiff v. A&G TRUCKING - AND VICTOR NIKITCHUK, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NOTICE TO PLEAD NO. 13-6646 CIVIL ACTION — LAW To: Commonwealth of Penna. Dept. of Transportation, Plaintiff c/o Michael D. Alsher, Esquire Assistant Counsel PA Department of Transportation Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Plaintiff 05/1295230.v1 ORIGINAL You are hereby notified to file written response to the enclosed Answer with New Matter to Plaintiffs' Complaint within twenty (20) days from service hereof or a default judgment may be filed against you. DATE: 05/1295230.v1 r BROO S R. FOLAND PA Attorney ID #70102 Marshall, Dennehey, Warner, Coleman & Goggin 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3714 FAX -(717) 651-3707 Attorney for Defendants MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Brooks R. Foland, Esquire PA Attorney I.D. No. 70102 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Telephone: (717) 651-3714; Fax 717-651-3707 brfoland@mdwcg.com Attorney for Defendants COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, DEPARTMENT OF : CUMBERLAND COUNTY, PENNSYLVANIA TRANSPORTATION, Plaintiff NO. 13-6646 v. A&G TRUCKING CIVIL ACTION — LAW AND VICTOR NIKITCHUK, Defendants DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW come Defendants, A&G Trucking, and Victor Nikitchuk, by and through their undersigned counsel, Marshall Dennehey Warner Coleman & Goggin, and file this Answer with New Matter to Plaintiffs Amended Complaint: 1. Admitted upon information and belief. 2. Admitted in part; denied in part. It is admitted that A&G Trucking is a Defendant in this matter. Its alleged addressed is denied. The correct address is 3348 Cardinal Flower Avenue, Modesto, California, 95355. 05/1295230.v1 ORIGINAL 3. Admitted in part; denied in part. It is admitted Victor Nikitchuk is a defendant in this matter. His alleged address is denied. His last known address is 223 Falcon View Drive, Antelope CA, 95843. 4. Admitted in part; denied in part. It is admitted that Defendant Nikitchuk was involved in an accident on the subject bridge on the alleged date. The remaining allegations of this paragraph are denied as stated. 5. Admitted upon information and belief. 6. Admitted. 7. Admitted. 8. Denied. The remaining allegations of this paragraph are legal conclusions to which no responsive pleading is required. To the extent the allegations of this paragraph are deemed to be factual in nature, Defendants deny the allegations on the basis that they lack sufficient information to form a belief as to the truth of the averment 9. Denied. The remaining allegations of this paragraph are legal conclusions to which no responsive pleading is required. COUNT I — NEGLIGENCE: VICTOR NIKITCHUK 10. Defendants incorporate by reference the answers to the foregoing allegations. 11. Denied. The allegations of this paragraph, together with its subparts "a" through "i," are legal conclusions to which no responsive pleading is required. 05/1295230.v1 12. Denied. The allegations of this paragraph are conclusions of law to which no responsive pleading is required. WHEREFORE, Defendants request judgment in their favor and against the Plaintiff together with such other relief as this Honorable Court may deem appropriate. COUNT II — VICARIOUS LIABILITY/RESPONDEAT SUPERIOR: A&G TRUCKING 13. Defendants incorporate by reference the answers to the foregoing allegations. 14. Admitted. 15. Admitted. 16. Admitted. 17. Denied. The allegations of this paragraph are legal conclusions to which no responsive pleading is required. WHEREFORE, Defendants request judgment in their favor and against the Plaintiff together with such other relief as this Honorable Court deems appropriate. NEW MATTER 18. Plaintiffs Complaint fails to state a cause of action against Defendants on which relief may be granted as a matter of law. 19. Plaintiffs claims may be barred by the applicable statute of limitations. 05/1295230.v1 20. No acts or omissions on the part of the Defendants were a contributing factor and/or the factual and/or legal cause in bringing about Plaintiffs alleged damages, all such damages being expressly denied. 21. Any and all damages described by Plaintiff in the Complaint, all such damages being expressly denied, were caused in whole or in part by acts and/or omissions on the part of the Plaintiff and/or others over whom Defendants had neither control nor right of control as a matter of law. 22. Defendants owed no duty of care to Plaintiff under the material and well pleaded circumstances set forth in Plaintiffs Complaint. 23. To the extent Defendants did owe a duty, said duty being expressly denied, Defendants breached no duty of care over the Plaintiff under the material and well pleaded circumstances set forth in Plaintiffs Complaint. 24. Plaintiffs damages, all such damages being expressly denied, were neither caused nor supplemented by act or omission on the part of the Defendants, but rather the damages are related to preexisting depreciation and/or deterioration for which the Defendants have no liability. 25. Defendants' damages, all such damages being expressly denied, were caused by prior motor vehicle accidents on the subject bridge. 26. Defendants' damages, all such damages being expressly denied, were caused by subsequent motor vehicle accidents on the subject bridge. 05/1295230.v1 27. Plaintiffs claims may be barred and/or limited due to its failure to mitigate damages, all such damages being expressly denied. 28. Plaintiffs alleged damages, the existence of which are denied, impermissibly seek replacement values, which is improper under Pennsylvania law. 29. Defendants' reserve their right to raise one or more of the defenses set forth at Pa. R.C.P. 1030 as discovery in this matter progresses. WHEREFORE, Defendants respectfully request judgment in their favor and against the Plaintiff, together with such other relief as this Honorable Court deems appropriate. DATE: 05/1295230.v1 Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Brooks R. Foland PA Attorney ID #70102 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3714 FAX (717) 651-3707 Attorneys for Defendants .10-24-14• 02:34pm From-MDWC&G +717651370T T-678 P.002/002 F-271 VER.IFICATI ft DAVID LEV, being duly sworn according to law deposes and says that he is the owner of A&G TRUCKING, Defendant in the above matter, and that he is authorized to make this verification of behalf of A&G TRUCKING, and that the facts set forth in the foregoing Answer with New Matter, are true and correct to the best of his knowledge, information and belief, This verification is subject to 18 Pa. C,S, §4904 which provides for certain penalties for making false statements DATE: 051I307007.I VERIFICATION I, Brooks R. Foland, of the law firm Marshall Dennehey Warner Coleman & Goggin, hereby verify that I am one of the attorneys of record for Defendants A&G Trucking and Victor Nikitchuk, and as such, I am authorized to make this verification and the information and facts set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating unsworn falsification to authorities. DATE: `b )* 05/1306162.v1 BROOKS R. FOLAND CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document 51 - has been served upon the following known counsel and parties of record this > day of 05/1295230.v1 , 2014 via United States First -Class Mail, postage prepaid: Michael D. Alsher, Esquire Assistant Counsel PA Department of Transportation Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN BY: Brooks R. Foland, squire Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CIVIL ACTION - LAW Plaintiff v. NO. 13-6646 Civil A & G TRUCKING and VICTOR NIKITCHUK, Defendants. REPLY TO NEW MATTER Filed on behalf of Plaintiff, Commonwealth of Pennsylvania, Department of Transportation Counsel of record for this party: MICHAEL D. ALSHER ASSISTANT COUNSEL PA I.D. # 37298 PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Tel: 717-705-1271 Fax: 717-772-2741 Email: malsher@state.pa.us IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Plaintiff vs. : DOCKET NO. 13-6646 Civil A & G TRUCKING and : CIVIL ACTION VICTOR NIKITCHUK, Defendants. REPLY TO NEW MATTER Plaintiff, Commonwealth of Pennsylvania, Department of Transportation ("PennDOT"), by its counsel, files this Reply to the defendants' New Matter, as follows: 18. Paragraph 18 of the Defendants' New Matter states a conclusion of law to which no response is required. 19. Paragraph 19 of the Defendants' New Matter states a conclusion of law to which no response is required. Furthermore, the statute of limitations does not run against PennDOT. See PennDOT v. J.W. Bishop & Co., 439 A.2d 101 (Pa. Supreme Ct., 1981). 20. Paragraph 20 of the Defendants' New Matter states a conclusion of law to which no response is required. 21. Paragraph 21 of the Defendants' New Matter states a conclusion of law to which no response is required. 22. Paragraph 22 of the Defendants' New Matter states a conclusion of law to which no response is required. 23. Paragraph 23 of the Defendants' New Matter states a conclusion of law to which no response is required. 24. Paragraph 24 of the Defendants' New Matter states a conclusion of law to which no response is required. 25. Denied. It is specifically denied that the damage to the bridge was caused by prior motor vehicle accidents, and strict proof of the averment in paragraph 25 of the Defendants' New Matter is demanded. 26. Denied. It is specifically denied that the damage to the bridge was caused by subsequent motor vehicle accidents, and strict proof of the averment in paragraph 26 of the Defendants' New Matter is demanded. 27. Paragraph 27 of the Defendants' New Matter states a conclusion of law to which no response is required. 28. Paragraph 28 of the Defendants' New Matter states a conclusion of law to which no response is required. To the extent a response is required, the averment is specifically denied. 29. Paragraph 29 of the Defendants' New Matter states a conclusion of law to which no response is required. WHEREFORE, Plaintiff, Commonwealth of Pennsylvania, Department of Transportation, seeks judgment in its favor and against defendant Victor Nikitchuk and his employer, A & G Trucking, jointly and severally, in the amount of $667,269.00, plus interest, costs and such other relief as the Court deems fit. Date: I-2- l R (l u Respectfully submitted, A -A-6/ Michael D. Alsher Assistant Counsel PA Supreme Court I.D. No. 37298 Office of Chief Counsel Department of Transportation Commonwealth of Pennsylvania P.O. Box 8212 Harrisburg, Pennsylvania 17105-8212 Telephone: (717) 787-5804 Fax: (717) 772-2741 VERIFICATION I, Michael D. Alsher, Assistant Counsel, Pennsylvania Department of Transportation, do hereby state that I read the foregoing REPLY TO NEW MATTER, and that the facts set forth therein are true and correct, to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S. §4904 (relating to unsworn falsification to authorities). Dated: Zi I l 9 /� t Dilaw Michael D. Alsher Assistant Counsel PennDOT Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105 Department of Transportation Commonwealth of Pennsylvania CERTIFICATE OF SERVICE I, Michael D. Alsher, Esquire, certify that I served a true and correct copy of the foregoing Reply to New Matter upon the person named immediately below, by U.S. First Class Mail on the 22nd day of December, 2014. Brooks Foland, Esquire 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 071 -7/ - Michael D. Alsher Assistant Counsel PA Department of Transportation Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Plaintiff Attorney No. 37298