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HomeMy WebLinkAbout14-2204 Supreme Court of Pennsylvania Court of C o mIn oll Pleas q Civil Cover Sh eet For Prothonotary Use Only: C V U 5 UZLA ?4 9 CoIIIity Docket No: 771e i1j 1orrnation eol /r�eted cut Il/�, <,rrr1 ir; rr,�cr" %:our• /t' lw rolerl cic(,lliili•strlrlir,r7 P111poSes. '17 -in does not Stf )J yI or /(31)1CI_Ce the fi ling •1 1i11.Cr t '1'.'.', [i�j `r r!rritly r >/'r�li7('!'1 /!We"S aS I'r:'i(2t1TB(.11) ;V loiv or 1'ltles q C.'our /. Commencement of Action: S Complaint ❑ Writ of Sununoiis ❑ Petition Transfer from Another Jurisdiction ❑Notice of Appeal E ❑Declaration of Taking C Lead Plaintiffs Name: I -ead Defendant's Name: T 3RW K SGOiT Q A W W , - � oQ l Moo I ficoo-i P4.s U Name of Plaintiff/Appellant's Attorney: N Are money damages requested? : Yes ❑ No Dollar Amount Requested: ❑ within arbitration limits A /` (Check one) outside arbitration limits Is this a ClassAetion Suit? ❑ Yes ❑ No Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIA tRY 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 ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution [] Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance ❑ Premises Liability ❑ Dept. of Transportation -- ❑ Zoning Board S ❑ Product Liability (does not include ❑ Statutory Appeal: Other L'j mass tort) ❑ Employment Dispute: ❑ Slander /Libel/ Defamation Discrimination C ❑ Other: ❑ Employment Dispute: Other T — Judicial Appeals I — - ❑ MDJ - Landlord/Tenant Other: ❑ MDJ - Money Judgment O MASS TORT V Q b �:R C] Other: N ❑Asbestos 8 Tobacco Toxic Tort - DES ❑ Toxic Tort - Implant REAL PROPERTY ❑ Toxic Waste : MISCELLANEOUS ❑ Other: ❑ Ejectment ❑ Common Law /Statutory Arbitration B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ❑ Mortgage Foreclosure Restraining Order PROFESSIONAL LIABLIT'Y ❑ Partition ❑ Quo Warranto ❑ Dental ❑ Quiet Title ❑ Legal ❑Replevin ❑ Medical ❑ Other: ❑ Other: ❑ Other Professional: Pa-R.C.P. 205.5 2/2010 c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT ` PENNSYLVANIA .; X BROOK SCOTT, CIVIL ACTION by her parent and natural guardian Lori Johnson, © G ` Plaintiff -,' .a V. NO. ENCOMPASS HOME AND AUTO INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 -3387 TELEPHONE NO. (717) 249 -3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BROOK SCOTT, CIVIL ACTION by her parent and natural guardian Lori Johnson, Plaintiff V. NO. ENCOMPASS HOME AND AUTO INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, this —I Aay of April, 2014, comes Plaintiff, by and through her attorneys, Diveglia and Kaylor, P.C., who files this Complaint on her behalf and avers in support thereof- 1 . Lori Johnson, is an adult individual who is the parent and natural guardian of Plaintiff Brook Scott and who resides at 765 Russell Tavern Road, Gettysburg, Adams County, Pennsylvania 17325. 2. Defendant is a corporation licensed to transact insurance business in the Commonwealth of Pennsylvania, with its office located at 1 Meridian Boulevard, Wyomissing, Pennsylvania 19610. 3. On or about August 10, 2013, minor Plaintiff was insured as a passenger of Defendant's motor vehicle insurance policy providing for underinsured coverage for passengers. A copy of said policy is in possession of Defendant, and it's insured, Jeremy Hengst and defendant is well familiar with the contents of the same. 4. The policyholder resides in Cumberland County, Pennsylvania and therefore jurisdiction is in Cumberland County, Pennsylvania. 5. The policy issued by Defendant provided for underinsured motorist coverage protection for a passenger in the event a passenger was involved in a motor vehicle collision and the colliding vehicle involved lacked sufficient insurance coverage to satisfy the incurred claims of the passenger. 6. On August 10, 2013, minor Plaintiff, Brook Scott, was a passenger in a vehicle operated by Jeremy Hengst and insured by defendant which was involved in a motor vehicle collision. She incurred injuries and losses which well exceeded the $100,000 policy limits of the tortfeasor. Said limits were tendered and accepted by minor Plaintiff with the consent of defendant on November 21, 2013. 7. In addition to obtaining the consent to settle third party claims from defendant, Plaintiff has in all other manner fully and completely complied with the provisions and conditions set forth by Defendant in its policy to obtain underinsured motorist benefits. 8. To the best of Plaintiffs knowledge, the policy at issue did not contain a mandatory arbitration clause. 9. The collision involved was entirely the fault of the third party tortfeasor in that he negligently struck head on the vehicle insured by defendant while driving under the influence of alcohol. 10. As a result of the aforesaid collision caused by the negligence of tortfeasor, Plaintiff incurred injuries including a right patella fracture, a severe left knee laceration with permanent residual scarring, a fracture of her left wrist, multiple carpal bone fractures, and a fracture of her third metacarpal. She additionally suffers from swelling of her knees and difficulty using her knees and wrist and has a right knee scar. 11. As a result of the aforesaid collision, Plaintiff was disabled from her employment and suffered an uncompensated loss of earning. 12.. As a result of the aforesaid collision and injuries, Plaintiff has incurred severe pain, great mental distress, and severe anxiety requiring treatment. 13. Plaintiff has incurred great embarrassment and humiliation relating to the scar of her knee. 14. The pain from her injuries from the aforesaid collision continue to present and her left knee scar has been deemed permanent. 15. Notice of intent to claim underinsured motorist benefits from Defendant was given by Plaintiff to Defendant, and Plaintiff fully documented her claim with medical records and reports. 16. The parties were unable to reach an amicable agreement under the terms of the underinsured motorist policy. WHEREFORE, Plaintiff demands judgment against Defendant for a sum in excess of the arbitration limits of Cumberland County. Respectfully Submitted, DI EGL & KAY OR C. - k oc� Date: 4 -10 -1 t Archie V. Diveglia, Es ire Attorney I. D. #17140 Two Lincoln Way West New Oxford, PA 17350 (717) 624 -2500 Attorney of Plaintiff VERIFICATION The foregoing COMPLAINT is based upon the information which has been gathered by my counsel in the preparation of the lawsuit. I have read the COMPLAINT and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of Pa. C.S. §4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Date �ri John rent and natural_ guardian of Brook Scott ENZ0252026.1- LAW OFFICES OF KENNETH S. O'NEILL LAURIE B. TILGHMAN, ESQ. Identification No. 89936 7535 Windsor Drive, Suite 101-B Allentown, PA 18195 Telephone: (610) 398-5492 BROOK SCOTT, by her p/n/g LORI JOHNSON, V. ENCOMPASS HOME AND AUTO INSURANCE COMPANY TO: Brook Scott, by her p/n/g Lori CIO Archie Diveglia, Esq. Two Lincoln Way W New Oxford, PA 17350 ATTORNEY FOR DEFENDANT Encompass Home and Auto Insurance Company COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 14-2204 NOTICE TO PLEAD Johnson, Plaintiffs YOU ARE HEREBY NOTIFIED AND REQUIRED TO FILE A WRITTEN RESPONSE TO THE WITHIN ANSWER AND NEW MATTER OF DEFENDANT(S), ENCOMPASS HOME AND AUTO INSURANCE COMPANY TO PLAINTIFF(S) COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. LAURIE B. TILGHMAN, ESQ. Attorney for Defendant(s) Encompass Home and Auto Insurance Company Jn DATED: ENZ0252026.1- LAW O1r1i10ES OF KENNETH S. O'NEILL LAURIE B. TILGHMAN, ESQ. ATTORNEY FOR DEFENDANT Identification No. 89936 Encompass Home and Auto Insurance 7535 Windsor Drive, Suite 101-B Company Allentown, PA 18195 Telephone: (610) 398-5492 BROOK SCOTT, by her p/n/g LORI JOHNSON, V. ENCOMPASS HOME AND AUTO INSURANCE COMPANY COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 14-2204 DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER Defendant, Encompass Home and Auto Insurance Company, by and through the undersigned counsel, answer(s) the Plaintiff's Complaint as follows: 1. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 2. ADMII 1 ED. 3. ADMI11bD. 4. ADMI11`ED. 5. ADMI'1"1'hD. 6. DENIED pursuant to Pa.R.C.P. 1029(e). 7. DENIED pursuant to Pa.R.C.P. 1029(e). 8. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 9. ADMITTED. 10. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 11. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 12. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 13. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 14. DENIED pursuant to Pa.R.C.P. 1029(e). The averments contained in the corresponding paragraph of Plaintiff(s) Complaint are not directed to answering Defendant(s). To the extent a responsive pleading is required, after reasonable investigation, answering Defendant(s) is/are without knowledge or information sufficient to form a belief as to the truth of the averments contained in the corresponding paragraph of Plaintiff(s) Complaint. Said averments are therefore denied. 15. DENIED pursuant to Pa.R.C.P. 1029(e). 16. ADMITTED. WHEREFORE, Defendant, Encompass Home and Auto Insurance Company, demands Judgment in Its favor and against all parties. DEFENDANT'S NEW MATTER AFFIRMATIVE DEFENSES 17. Financial Responsibility Law All causes of action and/or claims as set forth in all Civil Action(s)/Complaints(s) are limited, governed, barred, and/or restricted by the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984, 75 Pa. C.S.A. 1701, et seq., as amended by Act 6 of 1990, the relevant provisions of which are incorporated by reference herein as though the same were fully set forth at length. 18. Limited Tort -ACT 6 All causes of action and/or claims as set forth in all Civil Actions/Complaints are limited, governed, barred, and/or restricted by the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984, 75 Pa. C.S.A. 1701, et seq., as amended by Act 6 of 1990, the relevant provisions of which are incorporated by reference herein as though the same were fully set forth at length, including but not limited to the "limited tort" provisions of Section 1705, and in accordance with the "tort option" chosen and/or elected in the policy of insurance purportedly providing coverage for the accident in question. 19. Failure to State Cause of Action The Civil Actions/Complaints of the Plaintiff(s) fail to set forth a cause of action upon which relief can be granted. 20. Set Off and/or Credit Answering Defendants have a right to a credit, or set off in the amount of any uninsured motorist benefits secured by Plaintiff, against any jury verdict or award which may be entered against answering Defendants. 21. Doctrine of Mitigation of Damages Plaintiff's injuries or damages are barred and/or limited by the Doctrine of Mitigation of Damages. 22. Admissibility of Medical Expenses/Wages The admissibility of the Plaintiff's medical expenses and/or wage loss is bared and/or accordingly limited by the applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, as amended, and more specifically the collateral source rule of 75 Pa.C.S.A. Section 1722. WHEREFORE, Defendant, Encompass Home and Auto Insurance Company, demands Judgment in Its favor and against all parties. LAURIE B. TILGHMAN, ESQ. Attorney for Defendant(s) Encompass Home and Auto Insurance Company VERIFICATION Laurie B. Tilghman, Esquire, states that She is the attorney for the within named Encompass Home and Auto Insurance Company, and the facts set forth in the foregoing pleading are true and correct to the best of It knowledge, information, and belief; and this statement is made subject to the penalties of 18 Pa. C. §4904, relating to unsworn falsification to authorities. AURIE B. TILGHMAN, ESQ. Attorney for Defendant(s) Encompass Home and Auto Insurance Company CERTIFICATE OF SERVICE I do hereby certify that on April 30, 2014 service of a true and correct copy of the within pleading was made on all relevant parties or their counsel of record pursuant to Pa.R.C.P. 440. LAURIE B. TILGHMAN, ESQ. Attorney for Defendant(s) Encompass Home and Auto Insurance Company Our File No. ENZ0252026.1- LAW OFFICES OF KENNETH S. O'NEILL LAURIE B. TILGHMAN, ESQUIRE ATTORNEY FOR DEFENDANT Identification No. 89936 Encompass Home and Auto Insurance 7535 Windsor Drive, Suite 101-B Company Allentown, PA 18195 Telephone: (610) 398-5492 BROOK SCOTT, BY HER P/N/G LORI JOHNSON, V. ENCOMPASS HOME AND AUTO INSURANCE COMPANY COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 14-2204 ENTRY OF APPEARANCE TO THE CLERK: Please enter my Appearance on behalf of Encompass Home and Auto Insurance Company, Encompass Home and Auto Insurance Company, in reference to the above -captioned case. Attorney for Defendant(s) Encompass Home and Auto Insurance Company I hereby certify that I have served a copy of this paper upon all other parties or their attorney of record by regular US Mail. Our File No. ENZ0252026.1- LAW OFFICES OF KENNETH S. O'NEILL LAURIE B. TILGHMAN, ESQUIRE ATTORNEY FOR DEFENDANT Identification No. 89936 Encompass Home and Auto Insurance 7535 Windsor Drive, Suite 101-B Company Allentown, PA 18195 Telephone: (610) 398-5492 BROOK SCOTT, BY HER P/N/G LORI JOHNSON, V. ENCOMPASS HOME AND AUTO INSURANCE COMPANY COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 14-2204 DEMAND FOR JURY TRIAL TO THE CLERK: Defendant, Encompass Home and Auto Insurance Company, Demand(s) a Jury Trial of twelve (12) in reference to the above -captioned case. LAURIE B. TILGHMAN, ESQ. Attorney for Defendant(s) Encompass Home and Auto Insurance Company I hereby certify that I have served a copy of this paper upon all other parties or their attorney of record by regular First Class mail. Our File No. ENZ0252026.1- LAW 0141 -ICES OF KENNETH S. O'NEILL LAURIE B. TILGHMAN, ESQUIRE ATTORNEY FOR DEFENDANT Identification No. 89936 Encompass Home and Auto Insurance 7535 Windsor Drive, Suite 101-B Company Allentown, PA 18195 Telephone: (610) 398-5492 BROOK SCOTT, BY HER P/N/G LORI JOHNSON, V. ENCOMPASS HOME AND AUTO INSURANCE COMPANY TO THE CLERK: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 14-2204 CERTIFICATE OF SERVICE I, Laurie B. Tilghman, Esquire, hereby certify that a true and correct copy of Defendant's Interrogatories Addressed to Plaintiff, Brook Scott, by her p/n/g Lori Johnson, and Defendant's Request for Production of Documents Directed to Plaintiff, Brook Scott, by her p/n/g Lori Johnson, were served this date by United States Mail, First Class, postage prepaid, upon: Dated: April 30, 2014 Archie Diveglia, Esq. Two Lincoln Way W New Oxford, PA 17350 LAURIE B. I iLGHMAN, ESQ. Attorney for Defendant(s) Encompass Home and Auto Insurance Company Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY r, t- �l ;71_ exit, 01' �r�r�t!rr�7 THE � � ����� � �d�? +�H t; 7111§ HAY 14 CWIBERLAND COU =PENNS YLVgWAN OFFICE FBF T' E' Brook Scott vs. Encompass Home and Auto Insurance Company Case Number 2014-2204 SHERIFF'S RETURN OF SERVICE 04/14/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Encompass Home and Auto Insurance Company, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Berks, Pennsylvania to serve the within Complaint & Notice according to law. 04/22/2014 09:40 AM - The requested Complaint & Notice served by the Sheriff of Berks County upon Debbie Shirey, who accepted for Encompass Home and Auto Insurance Company, at 1 Meridian Boulevard, Wyomissing, PA 19610. Eric J. Weaknecht, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.49 SO ANSWERS, May 13, 2014 (rj CountySuite Sheriff, Teleosoft. Inc. XFP RON R ANDERSON, SHERIFF w Courthouse- 3rd Floor04 rr� 633 Court Street Reading, PA 19601 COUNTY OF BERKS, PENNSYLVANIA SHERIFF'S OFFICE Phone: 610.478.6240 Fax: 610.478.6222 Eric J. Weaknecht, Sheriff John Stanton, Chief Deputy AFFIDAVIT OF SERVICE DOCKET NO. 14-CUMB-2204 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF BERKS Personally appeared before me, Jason Wolfe, Deputy for Eric J. Weaknecht, Sheriff of Berks County, 633 Court Street, Reading, Pennsylania, who being duly sworn according to law, deposes and says that on 4/22/2014. 9:40:00AM, he served the annexed Complaint in Civil Action & NOTICE upon ENCOMPASS HOME AND AUTO INSURANCE CO, within named defendant, by handing a copy thereof to DEBBIE SHIRE)'(, Person In Charge/ ADMIN ASSISTANT, at 1 MERIDIAN BOULEVARD, Spring Township, Berks County, Pa., and made known to defendant the contents thereof Sworn and subscribed before me this 29 day of Apr, 2014 NOT ' ' BLIREADING, BERKS CO., PA NOTARIAL SEAL JENNIFER DEFREES Notary Public READING CITY, BERKS COUNTY My Commission Expires Jan 20, 2016 Sheriffs Costs in Above Proceedings $ 100.00 DEPOSIT $ 34.08 ACTUAL COST OF CASE $ 65.92 AMOUNT OF REFUND DEPUTY SHERIF OF BERKS COUNTY., PA Jason Wolfe Services made as set forth above So Answers, SHERIF OF BERKS COUNTY, PA Eric J. Weaknecht All Sheriffs Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any part liable for the costs thereof, all unpaid sheriffs fees on the same before he shall be obligated by law to make return thereof. _ Sec. 2, Act of June 20, 1911, P.L/ 1072 Dedicated to public service with integrity, virtue & excellence www.countyofberks.com/sheriff