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HomeMy WebLinkAbout05-1836Andrew Fish IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW NO: Swift Transportation : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and forwarded to Karl E. Rominger, Esquire, 155 S. Hanover Street, Carlisle. Respectfully Submitted ROMIII ER, BAYLEY & WHARE Date: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Supreme Court ID# 81924 (717) 241-6070 Attorney for Plaintiff WRIT OF SUMMONS To The Above Named Defendants: Swift Transportation, 2200 S. 75`h Avenue Phoenix, Az 85043 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: V? J Prothonotary By: 1? e f "il C == -• } -? o U3 cry. N DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 534.22076 ATTORNEYS FOR DEFENDANT, ANDREW FISH Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. SWIFT TRANSPORTATION CO., INC. Defendant. CIVIL ACTION LAW NO. 05-1836 CIVIL TO THE PROTHONOTARY: Please file of record the attached Certificate of Service which served the Rule to File a Complaint upon Plaintiffs issued by the Prothonotary on June 22, 2005, with regard to the above- captioned matter. FRANCIS J. DEASEY, ESQUIRE DEASEY, MAHONEY & BENDER, LTD. BY: DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 CERTIFICATE OF SERVICE I, Francis J. Deasey, Esquire, hereby certify that I have served upon all persons listed below a true and correct copy of the Rule to File Complaint in the above-captioned matter this date by First-Class mail, postage prepaid to all parties listed below: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Dated: (0-;` V - Os Bv: _ FRANCIS J. DEASEY, ESQUIRE DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 . 1800 JOHN F. KENNEDY BOULEVARD . PHILADELPHIA, PA 19103-2978 _N T Cl l I_ rl> DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 534.22077 ATTORNEYS FOR DEFENDANT, SWIFT TRANSPORTATION CO.. INC. ANDREW FISH Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. SWIFT TRANSPORTATION CO., INC. Defendant. CIVIL ACTION LAW NO. 05-1836 CIVIL ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL Kindly enter my appearance on behalf of Defendant, Swill Transportation Co., Inc., in the above-captioned matter. Defendant, by its undersigned counsel, hereby requests atrial by juryoftwelve members plus two alternates. DEASEY, MAHONEY & BENDER, LTD. b f n?? FRANCIS J. DE S QUIRE DATED:IX DEASEY, MANONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 C3 a (? cs+ pi ? ,,,,."' Ca r i ? 4:_ ? ?? ''?.-. N C.'-??% i=ce`- -s:s 'v><?i -t;:- ? 7>? C; .. ???;, i `WS J F-? r :G -L O DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 534.22077 ANDREW FISH vs. ATTORNEYS FOR DEFENDANT, SWIFT TRANSPORTATION CO., INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY [ CIVIL ACTION LAW Plaintiff, SWIFT TRANSPORTATION CO., INC. Defendant. NO. 05-1836 CIVIL PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule upon Plaintiff to file a Complaint in the above matter within twenty (20) days after service of the Rule or suffer the entry of a judgment of non-pros DEASEY, MAHONEY & BENDER, LTD. FRANCIS J. Attorneys for TO: Plaintiff RULE TO FILE COMPLAINT You are notified that a Rule is hereby entered upon you to file a Complaint within twenty (20) days after the date of service of this Rule upon you. If you. do not file a Complaint within this time, a JUDGMENT OF NON PROS will be entered against you. Dated: 1 > . .? aColas BY: PROTHONOTARY plc. DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 ., ? --n ? ? .? - G?: r„ ?- _ u::- ?. n-: ri? }? ? ? ?;> ` -_ -? ,:> ??? ? n, . , .• -6 `S3 _... C7 DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 Plaintiff, ANDREW FISH VS. SWIFT TRANSPORTATION CO., INC. Defendant. ATTORNEYS FOR DEFENDANT, TRANSPORTATION CO., INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO. 05-1836 CIVIL AFFIDAVIT OF SERVICE I, FRANCIS J. DEASEY, ESQUIRE, being duly sworn according to law, depose and state that a copy of a Rule to File Complaint that was filed and. executed by the Prothonotary of the Cumberland County Court of Common Pleas was served on Karl E. Rominger, Esquire, counsel for Plaintiff, by Certified Mail No. 7005 0390 0006 0276 6001 on June 30, 2005, as per the signed Domestic Return Receipt attached hereto. , FRANCIS J. DEA ESQUIRE Sworn to and Subscribed before me this 7-11?- day of ?j a- ? , 2005. NOTARY PUBLIC COMMONWEALTH or i t NOTARIAL SELL A_ FIANKHEAD, Nuta j PL„, j &fPhia, Phda County ! Mms December 17 2007 1 1 DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 to H ?z ?? ? 0 2 ? a x or gI °. m pp1¢36E 1, 0 N 0 t p aW°trbL a m m W co N C? ° 00'-1 O III"` m nv°m t« wooom EEc«?°p gti+i U-d $QO H ?Ln H ¦ ¦ ¦ N O ?1 N ^4 C4 . U ? o V rv ??? C3 ? O f $ _n C3 C3 v m F C3 Q ui 0 I I 'l I 0 .W R _w o a4 d m V z ?y« R 1Ld7R w y L a U9 w t- 0 a MO w _C tY } R nl • ro a v o m Cl) N q W O ? W v T rn ? b ra E m w ? ro v x w A O N ?? N W O x F: 4 C o a v ii u, m u v v v is q m o u AD H v W [L O ? [r. Q ,? ?n M ,c m 'D rA rn N ANDREW FISH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: 05 -1836 SWIFT TRANSPORTATION CO. : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, 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. Pennsylvania Bar Association 100 South Street, P.O. Box 186 Harrisburg, PA 17108 1-800-692-7375 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. ANDREW FISH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO: 05 -1836 SWIFT TRANSPORTATION CO. :JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiff, Andrew Fish, by and through his attorney, Karl E. Rominger, Esquire and in support of his Complaint avers as follows: 1. Plaintiff, Andrew Fish, is an adult individual residing at 707 Pear Street, Lemoyne, Pennsylvania. 2. Defendant, Swift Transportation is believed to be a Corporation whose primary place of business is believed to be 2200 South 75`h Avenue, Phoenix, Arizona. 3. On May 22, 2003, Plaintiff, Andrew Fish was driving his car on Route 83 South, in Cumberland County Pennsylvania. 4. At the same time, a Swift Transportation employee was driving on Route 83 South. 5. The Swift Transportation employee collided with Plaintiff s Celica on Route 83 South causing damage to Plaintiffs vehicle as well as pain and suffering to Plaintiff. 6. The Swift Transportation employee caused $1,136.34 in damages to Plaintiffs vehicle. Count I. Andrew Fish v. Swift Transportation 7. Previous paragraphs are incorporated by reference. 8. Defendant Swift Transportation has a duty to Plaintiff as their employee was driving in a reckless and careless manner. Defendant Swift Transportation was negligent in that: (a) The driver, an employee of Defendant failed to keep an assured clear distance; (b) Defendant's employee/driver failed to keep alert and maintain a proper and adequate watch for the presence of other vehicles on the roadway; (c) Defendant's employee/driver drove a vehicle in a manner endangering persons and property and in a reckless manner with careless disregard for the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. (d) Defendant's employee/driver was negligent per se for violating 75 Pa. C.S. 3322. (e) Such other acts or omissions as may be revealed in the course of discovery or a trial in this case. 10. Plaintiff suffered emotional and physical injury and continues to suffer as a result of Defendant's employee/driver's negligence. 11. Plaintiff's vehicle was damaged as a result of this accident and Plaintiff is entitled to the value of those repairs as well as payment for pain, suffering and emotional trauma. 12. Defendant is liable vicariously for its employee's negligence. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award in his favor in an amount not more than the statutory limits for compulsory arbitration, including costs of this suit and attorney's fees. Respectfully submitted, ROMINGER, BAYLEY & WHARE Date: 7 / G Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court. ID # 81924 Attorney for Plaintiff ANDREW FISH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION-LAW NO: 05 -1836 SWIFT TRANSPORTATION CO. : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Sidney W. Eggers, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, and Certified Mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Francis J. Deasey, Esquire DEASEY, MAHONEY & BENDER, LTD. Suite 1300 1800 John F. Kennedy Blvd. Philadelphia, Pa 19103-2978 Date: 06j- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ANDREW FISH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: 05 -1836 SWIFT TRANSPORTATION CO. : JURY TRIAL DEMANDED VERIFICATION Karl E. Rominger, Esquire, states that he is the attorney for, Plaintiff in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unworn falsification to authorities. Date: / Karl E. Rominger, Esquire Attorney for Plaintiff N r'" cr _ u+ f? f' iJ4 C7 T , )16 _'C7 :m NOTICE TO PLEAD DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 By: TROY D. SISUM, ESQUIRE Identification No. 89145 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 534.22076 TO: PLAINTIFFS YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR AJUDGMENT MAY BE ENTERED AGAINST YOU. Troy, ttomey for Defendant Swift Transportation Co. Attorneys for Defendant, Swift Transportation Co. IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PA CIVIL ACTION - LAW DIVISION ANDREW FISH, Plaintiff(s), vs. SWIFT TRANSPORTATION CO., NO. 05-1836 JURY TRIAL DEMANDED Defendant(s). Defendant, Swift Transportation Co. (hereinafter "Answering Defendant'), by and through its attorneys, Deasey, Mahoney & Bender, Ltd., answers Plaintiff's Complaint as follows: Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 1 of the DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 Complaint, and they are, accordingly, specifically denied and strict proof of same is demanded at the time of trial. 2. Admitted. 3. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 3 of the Complaint, and they are, accordingly, specifically denied and strict proof of same is demanded at the time of trial. 4. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 4 of the Complaint, and they are, accordingly, specifically denied and strict proof of same is demanded at the time of trial. 5. Denied. The allegations in paragraph 5 set forth conclusions of law to which no response is required. Accordingly, said allegations are specifically denied. Answering Defendant specifically denies that any action or conduct of their part caused or contributed to the accident by Plaintiff at any relevant time hereto. By way of further answer, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the factual averments of paragraph 5 of the Complaint, and they are, accordingly, specifically denied and strict proof of same is demanded at the time of trial. 6. Denied. The allegations in paragraph 6 set forth conclusions of law to which no response is required. Accordingly, said allegations are specifically denied. By way of further answer, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the factual averments of paragraph 6 of the Complaint, -2- DEASEY, MAHONEY & BENDER. LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 and they are, accordingly, specifically denied and strict proof of same is demanded at the time of trial. COUNTI ANDREW FISH v. SWIFT TRANSPORTATION 7. Answering Defendant incorporates by reference its answers to paragraphs 1 through 6 above, as if same were fully set forth herein at length. 8. The allegations in paragraph 8 set forth conclusions of law to which no response is required. Accordingly, said allegations are specifically denied. Moreover, Answering Defendant specifically denies that their employee was driving in a reckless and careless matter. As to the remaining allegations in paragraph 8, said allegations are specifically denied, and strict proof is demanded at time of trial. 9. Denied. The allegations set forth in paragraph 9 of the complaint, including subparagraphs (a) through (e), inclusive, set forth conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Accordingly, said allegations are specifically denied, and strict proof is demanded at trial. To the extent a response may be deemed to be required, Answering Defendant specifically denies that they were negligent and/or careless in any respect at any time relevant hereto and specifically deny that any action or conduct on their part caused or contributed to the cause of the alleged accident and Plaintiff's resulting injuries and damages. Moreover, Answering Defendant avers the following: (a) Answering Defendant specifically denies that it failed to keep an assured clear distance. -3- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103,2978 (b) Answering Defendant specifically denies that it failed to keep alert and maintain a proper and adequate watch for the presence of other vehicles an the roadway. (c) Answering Defendant specifically denies that its driver drove a vehicle in a manner endangering persons and property in a reckless manner with careless disregard fo the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. (d) Answering Defendant specifically denies that its employee/driver was negligent per se for violating 75 Pa. C.S. 3322. (e) Answering Defendant specifically denies that it was negligent at any relevant time hereto, and that any acts of negligence will be revealed in the course of discovery or at trial in this matter. 10. Denied. The allegations in paragraph 10 set forth conclusions of law to which no response in required. Accordingly, said allegations are specifically denied. Moreover, Answering Defendant specifically denies that they were negligent in any respect at any time relevant hereto. Answering Defendant also denies that any causal relationship exists between Plaintiffs' alleged emotional and physical injuries and any actions by Answering Defendant. 11. Denied. The allegations in paragraph 11 set forth conclusions of law to which no response in required. Accordingly, said allegations are specifically denied. Moreover, Answering Defendant specifically denies that they were negligent in any respect at any time relevant hereto. Answering Defendant also denies that any causal relationship exists between Plaintiffs' alleged emotional and physical injuries or vehicular damage and any actions by Answering Defendant. 12. Denied. The allegations set forth in paragraph 12 of the complaint set forth conclusions of law to which no response is required under the Pennsylvania Rules of Civil -4- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 Procedure. Accordingly, said allegations are specifically denied, and strict proof is demanded at trial. WHEREFORE, Answering Defendant Swift Transportation Co. prays that Plaintiff's Complaint be dismissed with prejudice. NEW MATTER By way of further answer to the Complaint, Answering Defendant hereby asserts the following New Matter: 13. Answering Defendant incorporates herein by reference each of its answers and averments in response to paragraphs 1 through 12 above as though same were fully set forth herein at length. 14. Service of process was improper and/or defective. 15. The Plaintiff has failed to state a cause of action upon which relief can be granted against Answering Defendant. 16. Plaintiff's claims are barred by the applicable Statute of Limitations. 17. Any acts and/or omissions on the part of this Answering Defendant which are alleged to constitute negligence were not substantial causes or factors which led to or caused the subject incident, and did not result in the injuries and losses alleged to have been sustained by Plaintiff. 18. The incident and damages alleged in Plaintiffs Complaint were caused solely by Plaintiff's own comparative negligence and are therefore barred and/or limited. 19. Plaintiff's claims are barred and/or limited pursuant to Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. §7102, as amended. -5- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA. PA 19103-2978 20. The subject incident and the alleged damages, if any, were not caused by any negligence, carelessness or recklessness on the part of this Answering Defendant, but instead were caused solely by the negligence, carelessness and/or recklessness on the part of some third party or parties other than this Answering Defendant, over whom Answering Defendant has no control. 21. Plaintiff's actions and/or omissions were negligent and such negligence was a superseding, intervening cause ofthe alleged accident which bars and/or limits all claims by Plaintiff arising therefrom. 22. Answering Defendant avers that Plaintiff voluntarily, knowingly and consciously assumed the risks of any and all damages of which they complain. 23. Plaintiff did not sustain any damages as a result of the alleged incident referred to in Plaintiff s Complaint. 24. Plaintiff's alleged damages was not foreseeable to Answering Defendant and, therefore, Answering Defendant cannot be liable for same. 25. Plaintiff has failed to mitigate any damages that he allegedly sustained. 26. Plaintiff's recovery is limited by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Act, including, but not limited to the applicable tort option. 27. Plaintiff's claims are barred by the appropriate provisions of No-Fault and/or Financial Responsibility Act. 28. Plaintiff's injuries are not permanent in nature or a significant impairment of any major bodily system and as such Plaintiff are precluded from seeking redress of his injuries pursuant to the Pennsylvania Motor V ehicle Financial Responsibility Act as found in 75 Pa.C.S.A. §1701, et. seg. -6- DEASEV, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 29. Inasmuch as Pennsylvania Rule of Civil Procedure 1032 provides that a party waives all defenses not presented by way of answer, Answering Defendant, upon the advice of counsel, hereby asserts all affirmative defenses not otherwise enumerated herein. Asset forth in Pennsylvania Rule of Civil Procedure 1030, the said affirmative defenses include, but are not limited to, estoppel, immunity from suit, release, statute of limitations, et al. The said affirmative defenses are subject to demonstration during the discovery process and proof at time of trial. WHEREFORE, Defendant Swift Transportation Co. prays that Plaintiff's Complaint be dismissed with prejudice. DEASEY, MAHONEY & BENDER, LTD. BY: FRANCIS J. DEASEY, ESQUIRE TROY D. SISUM, ESQUIRE Attorneys for Defendant, Swift Transportation Co. Date: August 3. 2005 -7- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 2005-08-03 07:43 602-477-7105 Swift Claims Dept. P 10/10 VERIFICATION hereby state that I am authorized to make this Verification on behalf of Defendant, Swift Transportation, that the statements made in the foregoing Answer with New Matter to Plaintiffs' Complaint, are true and correct to the best of my knowledge, information and belief, and that the statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. Ovro-o (1'ilkl -8. CERTIFICATE OF SERVICE I, TROY D. SISUM, ESQUIRE, hereby certify that I have served upon all person(s) listed below a true and correct copy of Defendant, Swift Transportation Company's, Answer to Complaint with New Matter, in this matter By First Class Mail: Karl E. Rominger, Esquire ROMINGER, BAYLEY and WHARE 155 South Hanover Street Carlisle, PA 17013 8 T I D. SISUM, ESQUIRE Date: Aueust 3, 2005 DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 • 1800 JOHN F. KENNEDY BOULEVARD • PHILADELPHIA, PA 19103-2978 ?? t. -Sl ?? -i ,'1 1:M1.'. ?' . ? , (-?? .,1 t C. J THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. REBA M. CORNMAN and CREEDIN F. CORNMAN, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RITE AID CORPORATION, Defendant V. GENERAL HEALTHCARE RESOURCES, Additional Defendant NO. 05-1843 MEDICAL MALPRACTICE JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Additional Defendant, General Healthcare Resources, and Counsel: You are hereby notified to plead to the enclosed Complaint within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ah W. Arosell, Esquire I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 DATE: ???/ d S (717) 255-7231 [ Attorneys for Defendant Rite Aid of Pennsylvania, Inc. THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. REBA M. CORNMAN and CREEDIN F CORNMAN, Plaintiffs V. RITE AID CORPORATION, Defendant V. GENERAL HEALTHCARE RESOURCES, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-1843 MEDICAL MALPRACTICE JURY TRIAL DEMANDED AND NOW, Defendant Rite Aid of Pennsylvania, Inc. (incorrectly identified as Rite Aid Corporation) (hereinafter " Defendant Rite Aid"), by and through its counsel, Thomas, Thomas & Hafer, LLP, hereby files this Complaint against Additional Defendant General Healthcare Resources, and avers as follows: 1. Defendant Rite Aid is a Pennsylvania corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Cumberland County, Pennsylvania, 17011. 2. Additional Defendant General Healthcare Resources is a Pennsylvania corporation, incorporated in 1993, with its corporate headquarters at Hickory Point, 2250 Hickory Road, Suite 240, Plymouth Meeting, Pennsylvania, 19462. 3. General Healthcare Services provides temporary and/or permanent placements and travel assignments of healthcare providers to both clinical and non-clinical facilities across the United States. 4. Foremost Medical Systems, Inc. was a pharmacy staffing company, formerly located at 202 Iron Rock Court, Langhorne, Pennsylvania, 19047-1015. 5. On July 20, 2001, Foremost Medical Systems, Inc. and Defendant Rite Aid entered into a Pharmaceutical Services Provider Agreement for the provision of pharmacists to provide professional pharmaceutical services at Rite Aid stores. As part of the Agreement, Foremost agreed to hold Rite Aid harmless, and defend and indemnify Rite Aid with regard to any claims or lawsuits arising out of the performance of services by Foremost pharmacists, pursuant to the Agreement. (See, Page 1, paragraph 1.2 and Page 5, paragraphs 3.10(a) and 3,10(b)). A true and correct copy of the Agreement is attached hereto as Exhibit "A". 6. Sometime after July 20, 2001, General Healthcare Services acquired Foremost Medical Systems, Inc. in order to expand their services to include a Pharmacy Division. 7. Without admission or denial, Defendant Rite Aid incorporates herein and makes a part hereof, Plaintiffs, Reba M. Cornman and Creedin F. Cornman's Complaint against Defendant Rite Aid, filed May 10, 2005. A true and correct copy of the Complaint is attached hereto as Exhibit "B". 8. Defendant Rite Aid incorporates herein and makes a part hereof, the Answer and New Matter of Defendant Rite Aid, filed July 22, 2005. A true and correct copy of the Answer is attached hereto as Exhibit "C". 9. On June 6, 2005, Defendant Rite Aid filed a Praecipe for Writ of Summons, which was served on Additional Defendant on July 1, 2005. A true and correct copy of the Praecipe for Writ of Summons is attached hereto as Exhibit "D". 371708-1 2 10. This matter involves injuries allegedly sustained by Plaintiff, Reba M. Comman as a result of an alleged pharmacy misfill on February 19, 2003 at Rite Aid Store 43607 located at 1814 Spring Road, Carlisle, Pennsylvania. 11. The pharmacist who verified Plaintiff's prescription on February 19, 2003 was Nnena Agwu, an agency pharmacist provided to Defendant Rite Aid by Foremost Medical Systems, Inc. under the terms of the July 20, 2001 Pharmaceutical Services Provider Agreement. 12. At all times material hereto, Foremost Medical Systems, Inc. and its successor, General Healthcare Services, were responsible for the actions of agency pharmacist, Nnena Agwu pursuant to the terms of the July 20, 2001 Pharmaceutical Services Provider Agreement, and therefore, are required to defend, indemnify and hold Defendant Rite Aid harmless. 13. To the extent that agency pharmacist, Nnena Agwu's actions or inactions are alleged to have caused injury to Plaintiffs, Additional Defendant, General Healthcare Services is solely liable to Plaintiffs. 14. Should it be determined that Plaintiffs' injuries were the result of the actions or inactions of agency pharmacist Nnena Agwu, as averred in the Complaint, Defendant Rite Aid alleges that Additional Defendant General Healthcare Services is liable over to Rite Aid, jointly and severally liable with Rite Aid, or liable to Rite Aid for indemnity and contribution. WHEREFORE, to the extent that Plaintiffs are entitled to recover on their Complaint, Defendant Rite Aid demands that judgment be entered against Additional Defendant General Healthcare Services on the basis that Additional Defendant General Healthcare Services is liable 371708-1 3 over to Defendant Rite Aid, jointly and severally liable, and/or liable to Defendant Rite Aid for indemnity and contribution under common law and/or the terms of the Pharmaceutical Services Provider Agreement. DATE: r/1/dd Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By:? uL _ Sai %fi W. Arosell, Esquire I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. 371708-1 4 08/12/2004 14:48 FAX SEP_29-01 SAT 11:02 PM RITE AID HR DEPT -17!!JJ+'1yE11 14:56 6183599289 Z002/008 FAX NO. 717 731 3860 P,02 I-IS"TWEDIUL PAGE 03 This PHARMACEUTICAL SERVICE rROME? AGREEMENT, dated as of July 20, 2001, 1a by And betWOQn, Rite Aid CaxpoxaLion ("'Rite Aid" or Compalny0) and Foremost xeeuegy Systems, Inc, a Pennsylvania Corporation. ("rcremost") 73ACXaROUND l 1. Rite Aid owns and operates', mile radius of Harr;shurg, Penn Foremost provides pharroAci > he are providers to provide pha a tical management support sc f- Rita Aid desires to utiliz 3't is willing to provide finch AGREEMEN Retail Pharmacies located in ylvanio. ("Subcontractors") ro ceutical and cos. Foremostrs services and rvices as pro-tidvd belay. 110W, THEREFORE, in conelde=atioil of the mutual covenaai-% herein, and rot other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged 'and Intending to be legally bound, the parties agree as follows: 1. Services of FoxemuaL: 3..1 Foremost shall provide professional Subcontzattars to pxovic!e professional pharm&Ceutical serviee6 from time to time as the Company requests such services aT}d Foremost can provide such persorrzel. I.2 Foremost shall comply with on accreditation of Healthcare Organ! as Rite !lid's training; its policies retort retention and reporting requi: Foremcst's responaibillty to operate Lwderal, state and local laws, ordina Foremost shall hold Rite Aid harmlee the alcove mentioned rules and regulai and indemnify Rite Aid with regard tc investigations and/or lawsuits arias.: this paxagraaph and Rita Aid shall, ii counael for such defense. all CC,SIIO, (Joint CCMEII` Vlwl! zationz) Medicare, as well and guidelines regarding ementa. It shall be ire compliance with all races rules and regulations. s for any failure to observe inns. r6ramott Shall dofond. any and all claims, ,q front its obligations under ita Role discrrsticn, select 1 08/12/2004 14:49 FAH 13cF-(0-ut ndl Ul;Uj rill Kllh H!U HK DEf-r V It L131 leuvi 14:bb blryjy 0299 1.3 t'oremoDt ropreseiiLs and static, local and federal Aftirma support Rite Aid's Aff:L=at1VM A Responsibility of the 16003/009 FAX W. 717 731 3860 P. 03 051MEMIC4L PAGE 04 ants that it adheres to all Action Programs and will programs. 2.1 All subcontractors provided by Foremost shall be roapensible for the performance of pharmaceutical serviaee Jr., accordance with state and federal law, and the practice of pharmacy generally, as well as knowlgdga Anti conformity with JCARO, Medicare and Rite Aid's policies and procedures. ,2 The .Vbcontracaor snaLl par{.icipate in patient care ^_onfe:_ences when requested, fI Z.3 Foremost and the Suboontracior shall comply with Rite Aid's training, policies and procedures with reOaxd to clinical, records, ppogre56 notes and patient and physician oommunication, a5 well as all other policies and procedures and requirements more Cully described on Schedule 8, if attached hereto by tine Company and made a part hereof. 3. Responsibility of Rite Aid.!, i 3.1 Rite Aid shall provide Foremost with a list of dates and hours for which it desires Foremost to provide Subcontractors at least )ne week prior to the date such aeraioa is dee7it^?--d. Fcremo,>t shall Confirm which dates an? times Subcontractors will be provided t"Confirmed Service Period") no lat'ar than 72 houre prior ;:o the scheduled start of such period. 3 2 Rites Aid ahall uuLlty Foremost of its inter- to cancel any confirmed service period within 49 houte prior to the schedu:ed start of such period. Fr;iii*e to notify Foramo$c of cvch esncellation at that tome will result In a cancellation fen equal to four hours time billed at the Scheduled Rate. (As definect below) 3.3 Rite Aid shall pay Foremost f Subcontractor provided by Foremost at Exhibit "A^ ("Fee Schedule"), within t an lnvcice. The Scheduled rate may h2 only upon written a9steawnL of the pax nnat the payment to individual Subcont rtsgonsibility of Foremont- r hours worked by a he rate specified in irty days after receipt of adjusted from time to time ies. it is understood actors shall be the sole 2 09/12/2004 14:49 FAX SEY729-01SAT t1:03 PM RITE AID HR DEPT N 1, ±111 llldld1 14:65 6103590209 4. Term and Termination. Th be f.:om month to month and shall au Lerm:Lnated in wrtcsng by eiLhor par Lerm:.nated for any reason with or w by written notice within reven days °. Miscellaneous, 5.1 Status of Parties. Forest contzactor and is not, for any puz °mplcyes of the Company. This Agt joint venture between the parties. 5,2 Insurance, 16004/009 FAX NCB. 717 731 3860 P. 04 C9TM01cw. PAGE 06 term of this contract shall mmtically renew unless y. ThLs agzreiaeni, oay be thout cruse by either pasty prior to the end of any torm, is an independent . or agent, partner or nt does not con6tiLuts a al Foremost shall cause 1 to Carry and maintain minimum coverage for 1 $1,000,000.00 per per occur=once. Foremost subcontractor a copy sAid Subcontractor be Foremost shall maints a central location an available to Rite Aid b) Foremost shall, a4 keep in force and A Comprehensive policy in an am combined single property damage is pharmacist Subcontractors Malpractira insurance with a odily injury of at least on and $3,000,000.00 per shall obtain from each f his/her policy prior to inniwg any work at Rite Rid. n copies of all polielva'in make one or all immediately at Rite Aid's request. st's expense, obtain and during the term: rat Liability insurance not less than *3,000,000 t fCSL) bodily injury and occurrence. 5.3 subcontractors, it is sxpre ?1,at the phaiinaciats provided by Fore independent subcontractors and are no partner or employee of F'OYP_mn?" at th' full-time or part-time employment is any suocontractor whose services were Foremost and such employment is offer last CDnfirmed Service Period which w „hrnn_ractcr, the Company =hall pay accordance with the fees ih "Schedule sly understood and agreed ost are professional, for any puipoae an, agent, company, In the event thmt ffered by the Company to contracted for through- d within six months of the s performed by such oremost s placement fee A". 16005/009 08/12/2004 14:49 FAX HR DEPT bCY.Ly`U, nd1 pia:a°?? J3S90p 5.a Force Ma]eure. If either obligations hereunder (except for t beCai:Aa of strikos, aocidentc, aCts action or inaction of any governm9n authority or other causes beyond it to perform shall not be deemed a de excusad without penalty until such or pe._£arniitiy. FAX NO 717 731 3860 P.05 CS M6D7OWL PAGE 05 rty tails to perform its obligation to pay money) Godr wvother Conditions or body or other proper control„ then such failuro ult hereunder and shall be me as said party is capable ;i.5 NotiRw¢_ Notieao or communiccti.asta to be 91-WS4 under this F?greement shall be given to Ohe`reapective parties in writing either by personal delivery qr by registered of cezr.iried mail, postage prepaid or by overnight: delivery as follows: 34 the con=anve Fite aid 4119 Ebenezer Road Baltimore Mb Arm Mitch Kromaky Ciyy: Michele Hel,aey 30 Hunter Lane Camp Bill, PA 17011 To Foremost: Foremost Medical systems, Inc. 2C,2 Iron Rock Co4rt L2.nghozne, Pa. 19047-1015 A77N: Donald L. CArmoli*n Or at such other addresses and to sucl party nay from time to time designate provided. Such notices or communicst: been giv®n three day= after deposit is sent by certified mail, postage preps, delivery to an overnight delivery ser' other persons as.either y notice given as herein ns shell be deemed to have the Unityd SLdtez mail if , or one day after' 5.5 Suecessors_ This Agreement shall be binding upon and inure to the JscneElt aZ 17U1h parties and their successors and =_ssigne. Nothing in this Agreement is',intended nor shall be deaMed to confar And benefits on any third party. 5,7 hesiCnment. No assignment of!this Agreement or the rights and obligations hereunder shalllbe valid without the prior written consent of the non-assigning pe=ty. 08/12/2004 14:48 FAX ar.r-ee-U1 M' LIM FM RITE AID HR DEPT d7eW(2091 X4:56 6163590289 5, s Cclvvrning 3•dw. TAis agreaiLe gove::ned according to the laws of tote Penniglvania, without giving effeetlto nrov:.sions. I IA 0061009 717 731 3860 P,06 H_ PAGE e7 nt shall be Construed end Commonwealth og its confllct of law s-a waiver, waiver by either Party Of a breach or violation of airy provision of tT:is Agreement shall not operate as, er be COrst Hied tc be, a waiver o= any prior, concurrent or subsequent breach. None of the provisions of this Agreement shall be considered waived by Qither party except: when such waivex 1%; given in writing. J.10 Indemnification and Hold 8) Foremost shall defend{ Rite Aid, its subsidia and from all costa, ex damages, i.njunetions,l penalties, claims and nature, including cour? "losses"), by or on. be Qevarntnetn*al entity wli any failure by Poremos perform any of the agr Conditions of this Agr injury or damages aris manner by the acts ax Subcontractors (pharma subcontractors), and/c employees; (c) failure subcontractors to comp reflexal, state, count_ authority, including, applicable Environmen a. inuwmniry and seve.harmlase rie$r and employees against Penes, liabilities, locacs,. suits, actions, fines, demands of every kind and sel fees (collectively, half of any person, party or ataoevcr arising out or (a) t and/or subcontractors to eements, terms, covenants or eemento (b) any accident, ing out of or caused in any Lumimsion of Foremost, its Gists and/or other provided r rnYP.Ra4t1s agents and `of Foremost and/or ly With any Laws of any vlor city governmental but not, limited to any taZ lawsi. b) Foremost hereby releas &ubsidiaries, employee. Claim against Rite Aid employees and agduLa r Rita Aid shall not in liable for any injury to Foremost happeninq of any other person co Foremost tits agents, subcontlactozz) perfor' lox in this A.wreement:. defend and indemnify R termination of this Ag Rites Aid, its and agents and waives any its subsidiaries; ating to any Lasses and y event whatsoever be r1mmage to any property ox or about the Premises, or. ained therein due to ployses and nq the Sarvices provida4 coremoat's obligation to e Aid suxvives the • r?oo??oos 06/12/2004 14:49 FAH 6Lt-a-U1 SOT [I:Ub M RITE W HR DEPT __?I.FM NO. 717 731 38GO r 44hP.07 8 i/20/"001 :.a: SE Giea59fl469 M;I NbDltill. TW 9a2TMES6 WNEREOFF Llte partic as of the date first written above, have executed this Agreement Rice Aid , Titlel 71?t.y Date: ; Ferareoet medical! 9ysl'Wlis i By, Title; cote: ?r! o 7 08/1.2/2004 14:48 FAX zoos/008 PAYMENT Within 21 Days of INVOICE PHARMACY PLACEMENT SERVICES PHARMACY TEMPORARY SERVICE .......... 100/0 of salary "DAY" shifts "EVENING" shifts "OVERNIGHT" shifts "HOLIDAY" shifts PHARMACY TEMPORARY CHMICIAN...... PHARMACY SERVICES LODGING $65.00 per hour $67.00 per hour $68.00 per hour $25.00 in addition to regular day shift rate $27.00 per hour Lodging for pharmacy services providers will be passed along at incurred cost or as required by individual account. Rite Aid Cctporation Date P, 08 FAR N0. 111 131 3360 q 14'.49 FRX xl?E Alq y-)l ?Ht UI Ub t?... ctasg?gcs ?&Wnle v 7'h fa`lowing luactiees are V mnncrj b ' - -? Rito Aid ConxWation ofldeglgpnt ??,g ?Ageney to relp ae • R?simtcrtaefved'fry.Ctgff±ngAgeteey Obtain Copy ofpwnnaciat licttise + Ghrsk:ftwPhrxs liceusc with hoard of.t'hit o4ndidmre wtlj be ptacti+A.. cortfmn b?aftis in zuaey gvhere • t'Fte k O.tG website forvio Iaticro good ataW,ing Olxszin Cn s {Medicaid or Medic} PY ofph&Mnjwis{ Ikulity imuraace 'Check 2 P,-itfwSkM4 Mf=nces , Vertfy Q I lidate cart ieXWY work in the U,S, Rite Aid M, ill alto requfte the Candidate to OOMPlY with lfii?e foilowittg• • ProVide "rl&%' praCtke HCMW for oojWLn$ + Perform and Pats. Drag Test • koceive v,rjft ppLjv ,` ?}ItlMnS Agency uat4date's wing with ilia state board of pharmacy Vft* if the Csoclidxw was a psevicus usaor4uft of Rite Crepcran w and if so inquire abort the circumstances s ncq;ir deperhirc sign 5tatenaent of Confidentiality • CMilrtst cwdidute can legally work In Ow V.S. is in *%r ,F s REBA M. CORNMAN and IN THE COURT OF COMMON PLEAS OF CREEDIN F. CORNMAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2005-1843 RITE AID CORPORATION, CIVIL ACTION Defendant n o 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 an attonn6y 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, Pennsylvania 17013 (717) 249-3166 TRUE OOPY FROM RMORO to Tubmi y wlwed, I hero urn wt OY hW 00 Ad 0900. h. and the of said Ceu r9' This 11-2 A .... ,i tsiQ ?rattroRVt REBA M. CORNMAN and IN THE COURT OF COMMON PLEAS OF CREEDIN F. CORNMAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2005-1843 RITE AID CORPORATION, CIVIL ACTION Defendant COMPLAINT AND NOW, come Reba M. Cornman and Creedin F. Cornman, by and through their attorney, Michael A. Scherer, Esquire, and respectfully represent as follows: 1. Plaintiffs are Reba M. Cornman and Creedin F. Cornman, adult individuals who are married to one another, residing at 10 Creek Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant Rite Aid Corporation is a Pennsylvania corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Cumberland County, Pennsylvania 17011. 3. For some time prior to February, 2003, the Plaintiff, Reba M. Cornman, treated with Debra D. Taylor, M.D. with Masland Associates in Carlisle, Cumberland County, Pennsylvania. 4. Prior to February, 2003, Reba M. Cornman had received a prescription from Dr. Taylor for "niaspan" for two 500 mg. pills to be taken daily. 5. Reba M. Cornman took the prescription for niaspan to be refilled at the pharmacy at the Rite Aid store on Spring Road, Carlisle, Cumberland County, Pennsylvania on February 19, 2003. 6. Upon arriving home from the Rite Aid pharmacy on February 19, 2003, Reba M. Cornman noticed that the pills dispensed by the Rite Aid pharmacist were a different color and shape from the niaspan pills she had previously been prescribed and ingested. 7. Reba M. Cornman immediately returned to the Rite Aid pharmacy to speak with the pharmacist to inquire whether her prescription had been properly refilled. 8. Reba M. Cornman at that time advised the Rite Aid pharmacist that the pills were a different shape and color from her prior niaspan prescriptions. 9. The pharmacist with whom she spoke when she returned to the Rite Aid store to question the prescription reviewed the bottle and advised Reba M. Cornman that the prescription was in fact properly refilled. 10. Reba M. Cornman returned home and proceeded to ingest the prescription as directed by her physician and the dosage directives on the container for the length the prescription, a period of three months. 11. In May, 2003, Reba M. Cornman's prescription was again due to be refilled and she returned to the Rite Aid pharmacy on Spring Road in Carlisle to have the prescription refilled. 12. On May 23, 2003, upon the refilling the prescription, the pills were j different in color and shape from the pills Reba M. Cornman received on February 19, 2003. 11 Reba M. Cornman questioned the pharmacist as to the disparity in the appearance of the pills given to her by the Rite Aid pharmacist on May 23, 2003 versus the prescription on February 19, 2003. 14, The pharmacist at the Rite Aid pharmacy on May 23, 2003 indicated that the pills Reba M. Cornman had received on February 19, 2003 were "naproxen" and not what she had actually been prescribed, "niaspan." 15. At that time, Reba M. Cornman asked the pharmacist to prepare a written memorandum as to the pharmacists statement, which the pharmacist did reluctantly, at which time he commented that the pills given to her on F=ebruary 19, 2003 were not "niaspan." 16. The pharmacist who dispensed the prescription medication to Reba M. Cornman on February 19, 2003 was employed by Defendant at all times relevant hereto and was acting within the scope of his employment at all times relevant hereto. COUNT I - NEGLIGENCE: 17. Plaintiffs incorporate paragraphs one through sixteen as though set forth at length. 18. In April, 2003, while taking the improperly refilled prescription, Reba M. Cornman was rushed to the emergency room at the Carlisle Hospital with symptoms including chest pains, dizziness, fatigue, difficulty swallowing, difficulty breathing and wheezing, among other things. 19. Reba M. Cornman was hospitalized for a period of five days thereafter until such time as her condition stabilized. 20. Reba M. Cornman had been improperly taking a prescription medication, "naproxen," as a result of the negligence of Rite Aid, leading up to the her hospitalization. 21. Rite Aid's negligence in improperly disperising "naproxen" to Reba M. Comman caused her medical condition to deteriorate and resulted in her hospitalization. 22. The "naproxen," by itself and in combination other medications, caused the Plaintiffs medical condition to deteriorate resulting in her hospitalization. 23. Reba M. Comman's physician was unable to properly treat her since it was unknown to the physicians and hospital staff that Reba M. Cornman had been ingesting "naproxen" instead of what was actually prescribed to her. 24. Reba M. Cornman suffered pain and suffering, inconvenience and loss of life's pleasures as a result of the negligence of Rite Aid in improperly refilling Reba Comman's prescription. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant in and amount in excess of the amount requiring compulsory arbitration together with costs and interest. COUNT II LOSS OF CONSORTIUM 25. Plaintiffs incorporate paragraphs one through twenty-four as though set forth at length. 26. Creedin F. Cornman, is married to the Plaintiff, Reba M. Cornman and was so married at all times relevant hereto. 27. As a direct and proximate result of the negligence of the Defendant, acting by and through its actual or ostensible agent as referenced above, Creedin F. Cornman has been deprived of the care, companionship and services of his wife, Reba M. Cornman, for all of which damages are claimed. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant in and amount in excess of the amount requiring compulsory arbitration together with costs and interest. Respectfully submitted, O'BRIEN, BAMC & SCHERER 4 Michael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiffs mas.dir/genlit/cornman/complaint,pld VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by our attorney in this litigation. The language of the statements are not our own. We have read the statements; and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 41904 relating to unsworn falsifications to authorities. DATE: 3 - O 5 f'1L J rOZ? Reba M. Cornman DATE: Creedin F. Cornman CERTIFICATE OF SERVICE I hereby certify that on May 40 , 2005, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire, did serve a copy of the Complaint, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Harrisburg, Pennsylvania 17108 u? Je nif S Li dsay THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717(255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc REBA M. CORNMAN and CREEDIN F. CORNMAN, Plaintiffs V. RITE AID CORPORATION, Defendant V. GENERAL HEALTHCARE RESOURCES, Additional Defendant NO. 05-1843 MEDICAL MALPRACTICE JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiffs and Counsel: YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. THOMAS, THOMAS & HAFER, LLP By:?x?tcx Sarah W. Arosell, Esquire I.D.#58797 Attorneys for Defendant Rite Aid of DATE: 71,9,1,5` Pennsylvania, Inc. /,2t/a5` IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENINSYLVANIA 369366-) THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 7171255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. REBA M. CORNMAN and CREEDIN F. CORNMAN, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RITE AID CORPORATION, Defendant V. GENERAL HEALTHCARE RESOURCES, Additional Defendant NO. 05-1843 MEDICAL MALPRACTICE JURY TRIAL DEMANDED AND NOW, comes the Defendant Rite Aid of Pennsylvania, Inc. (incorrectly identified as Rite Aid Corporation) (hereinafter "Rite Aid"), by and through their counsel, Thomas, Thomas & Hafer, LLP, to respond to Plaintiffs' Complaint and in support of same, avers as follows: 1. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations 369366-1 contained in this paragraph and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 2. Denied as stated. Plaintiffs have improperly identified Defendant as Rite Aid Corporation. To the contrary, Defendant Rite Aid of Pennsylvania, Inc. is a Pennsylvania corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Cumberland County, Pennsylvania 17011. 3-4. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in these paragraphs and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 5. Admitted in part. Denied in part. It is admitted that on February 19, 2003, a prescription for Reba M. Cornman was filled at the Rite Aid pharmacy on Spring Road in Carlisle, Cumberland County, Pennsylvania. The remainder of the allegations in this paragraph are denied since after reasonable investigation Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of these allegations and the same are deemed denied and proof demanded at the time of trial. Moreover, these allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 6 - 10. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations 369366-1 contained in these paragraphs and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e), 11 - 12. Admitted in part. Denied in part. It is admitted that on May 23, 2003, a prescription for Reba M. Cornman was filled at the Rite Aid pharmacy on Spring Road in Carlisle, Cumberland County, Pennsylvania. The remainder of the allegations in this paragraph are denied since after reasonable investigation Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of these allegations and the same are deemed denied and proof demanded at the time of trial. Moreover, these allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 13 - 15. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 16. Denied as stated. The pharmacist who dispensed Reba M. Cornman's medication on February 19, 2003 was Nnena Agwu, who at all times relevant hereto, was an agency pharmacist employed by Foremost Medical Systems, Inc. The remainder of the allegations contained in this paragraph are conclusions of law as opposed to statements of fact and no response is required. To the extent a response is required, the factual allegations contained in this paragraph are denied generally 369366-1 pursuant to and in accordance with Pa. R.C.P. 1029(e) and proof demanded at the time of trial. COUNT I - NEGLIGENCE 17. Defendant Rite Aid hereby incorporates its responses to Paragraphs 1 through 16 of this Answer as if fully set forth herein. 18. Denied. To the extent that this paragraph contains conclusions of law as opposed to statements of fact, no response is required. To the extent a response is required, after reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of' the allegations of damages contained in this paragraph and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). Moreover, Defendant Rite Aid acted with the requisite standard of care at all times relevant hereto and in no way negligently or otherwise caused or contributed to cause any injury or damage to Plaintiff. 19. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e), 20- 21. Denied. Defendant Rite Aid incorporates by reference Paragraph 16, above. To the extent that Paragraphs 20-21 contain conclusions of law as opposed to 369366-1 statements of fact, no response is required. To the extent a response is required, after reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations of damages contained in these paragraphs and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). Moreover, Defendant Rite Aid acted with the requisite standard of care at all times relevant hereto and in no way negligently or otherwise caused or contributed to cause any injury or damage to Plaintiff. 22 - 23. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 24. Denied. Defendant Rite Aid incorporates by reference Paragraph 16, above. To the extent that Paragraph 24 contains conclusions of law as opposed to statements of fact, no response is required. To the extent a response is required, after reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations of damages contained in these paragraphs and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). Moreover, Defendant Rite Aid acted with the requisite standard of 369366.7 care at all times relevant hereto and in no way negligently, or otherwise caused or contributed to cause any injury or damage to Plaintiff. WHEREFORE, Defendant Rite Aid demands judgment in their favor and against Plaintiffs without cost to them. COUNT 11- LOSS OF CONSORTIUM 25. Defendant Rite Aid hereby incorporates their responses to Paragraphs 1 through 24 of this Answer as if fully set forth herein. 26. Denied. After reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in this paragraph and the same are deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). 27. Denied. Defendant Rite Aid incorporates by reference Paragraph 16, above. To the extent that Paragraph 27 contains conclusions of law as opposed to statements of fact, no response is required. To the extent a response is required, after reasonable investigation, Defendant Rite Aid is without sufficient knowledge or information to form a belief as to the truth of the allegations of damages contained in this paragraph and the same is deemed denied and proof demanded at the time of trial. Moreover, all allegations are generally denied pursuant to the provisions of Pa.R.C.P. 1029(e). Moreover, Defendant Rite Aid acted with the requisite standard of care at all 369366-1 times relevant hereto and in no way negligently or otherwise caused or contributed to cause any injury or damage to Plaintiff, Creedin F. Cornman. WHEREFORE, Defendant Rite Aid demands judgment in their favor and against Plaintiffs without cost to them. NEW MATTER By way of further response to the allegations contained in Plaintiffs' Complaint, Defendant Rite Aid hereby raises the following New Matter in accordance with Pennsylvania Rule of Civil Procedure 1030: 28. Defendant Rite Aid incorporates Paragraphs 1 through 27 of this Answer as if set forth at length herein. 29. Plaintiffs fail to state a cause of action against Defendant Rite Aid upon which relief can be granted. 30. Defendant Rite Aid raises all affirmative defenses of the Healthcare Services Malpractice Act, 40 P.S. §§ 1301.101, of seq. 31. For the purposes of preserving the same, and subject to further discovery, all or some of Plaintiffs' claims are time-barred due to the expiration of the applicable Statute of Limitations. 32. For the purpose of preserving the same, and subject to discovery, all or some of Plaintiffs' claims may be barred pursuant to the affirmative defenses of release, offset, or accord and satisfaction. 369366-1 33. At no time relevant hereto was any other natural person, partnership, corporation, or other legal entity acting or serving as an agent, servant, employee, or otherwise for or on behalf of Defendant Rite Aid. 34. In the event that it is determined that Defendant Rite Aid was negligent with regard to any of the allegations contained in and with respect to Plaintiffs' Complaint, said allegations being specifically denied, discovery may establish that said negligence was superseded by the intervening negligent acts of other persons, parties, and/or organizations other than Defendant Rite Aid, and over whom Defendant Rite Aid had no control, right, or responsibility, and therefore Defendant Rite Aid is not liable. 35. To the extent that the evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the injuries or the pre-existing condition of Plaintiff, Reba M. Cornman, then the conduct of Defendant Rite Aid was not the legal cause of such conditions or injuries. 36. Any acts or omissions of Defendant Rite Aid alleged to constitute negligence were not substantial factors contributing to the injuries and damages alleged in Plaintiffs' Complaint. 37. If any injuries and damages, as alleged in Plaintiffs' Complaint, were caused in whole or in part by persons or entities over whom Defendant Rite Aid had no duty to supervise or control, then Defendant Rite Aid is not liable, and Plaintiffs may not recover against them. 369366-1 X Plaintiffs' injuries and losses, if any, were not caused by the conduct or negligence of Defendant Rite Aid, but rather were caused by pre-existing medical conditions and causes beyond the control of Defendant Rite Aid, and therefore Plaintiffs may not recover against Defendant Rite Aid. 39. The incident and/or damages described in Plaintiffs' Complaint were caused or contributed to by Plaintiffs. 40. The Plaintiffs may have assumed the risk. 41. If there is a judicial determination that Pa. R.C.P. 238 is constitutional, with said constitutionality being expressly challenged as in violation of the due process and equal protection clauses of the 14th Amendment of the United States Constitution, 42 U.S.C. § 1983; Article 1 § 1, 6, 11, 25; and Article V, § 10(c) of the Pennsylvania Constitution, then any and all liability for interest imposed by the Pennsylvania Rules of Civil Procedure should be suspended during any such period of time that Plaintiffs: (a) failed to convey to Defendant Rite Aid a settlement figure; (b) delayed in responding to any Interrogatories as properly served; (c) delayed in responding to any Request for Production of Documents and/or things as properly served; (d) delayed in producing Plaintiffs for deposition following proper service of Notice of Deposition upon Plaintiffs and/or their counsel; (e) delayed in producing Plaintiffs for physical examination upon proper notice; or (f) delayed in any other manner relating to discovery requests properly made by Defendant Rite Aid. 369366-I 42. Defendant Rite Aid raises all affirmative defenses of the Medical Care Availability and Reduction of Error (MCare) Act alkla Act 13 of 2002 as a limit/bar to Plaintiffs' claims. WHEREFORE, Defendant Rite Aid demands judgment in their favor and against Plaintiffs without cost to them. THOMAS, THOMAS & HAFER, LLP By: ix2a ?rJ(,fituA???_ Sa```raafi VV. Arosell, Esquire I.D.#58 7 97 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. DATE: 71,711r,5-- 369366-1 VERIFICATION I, Michael J. McCaffrey, state that I am an authorized representative of Rite Aid of Pennsylvania, Inc., that I make this Verification on behalf of Defendant Rite Aid of Pennsylvania, Inc. and that I have read the foregoing ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT which has been drafted with the assistance of counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Michael J. ,McCaffrey Pharmacy Development Manager Rite Aid of Pennsylvania, Inc. DATE: July 21, 2005 CERTIFICATE OF SERVICE I, Sarah W. Arose[[, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the ,21 day of, 2005: Michael A. Scherer, Esquire 19 West South Street Carlisle, PA 17011 Attorneys for Plaintiffs THOMAS;, THOMAS & HAFER, LLP By: GRI? LL?1?ALft-- Sarah W. Arosell, Esquire 369366-1 A4,9 d %W MUM S316390o '1+ ?T h Q X3 THOMAS, THOMAS & HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. REBA M. CORNMAN and CREEDIN F CORNMAN, Plaintiffs V. RITE AID CORPORATION, Defendant V. GENERAL HEALTHCARE RESOURCES, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-1843 MEDICAL MALPRACTICE JURY TRIAL DEMANDED TO THE PROTHONOTARY/CLERK OF SAID COURT: Please issue summons in the above captioned matter. xx Writ of Summons shall be issued and forwarded to Sheriff for service on the Additional Defendant at the following addresses: General Healthcare Resources 2250 Hickory Road Suite 240 Plymouth Meeting, PA 19462 n c ti o THOMAS, THOMAS & HAFER LLP -' , r7, ? By: lk1.? ,t?, mac` Sarah W. Arosell, Esquire y I.D.#58797 a C N ' `}} 305 North Front Street P.O. Box 999 J ?- Harrisburg, PA 17108-0999 DATE: G ve (717) 255-7231 « j Attorneys for Defendant Rite Aid of Pennsylvania, Inc. THOMAS, THOMAS 8 HAFER, LLP Sarah W. Arosell, Esquire Identification Number: 58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 7171255-7231 Attorneys for Defendant Rite Aid of Pennsylvania, Inc. REBA M. CORNMAN and CREEDIN CORNMAN, Plaintiffs V. RITE AID CORPORATION, Defendant V. GENERAL HEALTHCARE RESOURCES, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-1843 MEDICAL MALPRACTICE JURY TRIAL DEMANDED SUMMONS IN CIVIL ACTION TO: General Healthcare Resources, 2250 Hickory Road. Suite 240, Plymouth Meeting, Pennsylvania 19462 YOU ARE NOTIFIED THAT THE ABOVE-NAMED DEFENDANT, RITE AID OF PENNSYLVANIA, INC., (INCORRECTLY DESIGNATED AS RITE AID CORPORATION) HAS JOINED YOU AS AN ADDITIONAL DEFENDANT IN THIS ACTION, WHICH YOU ARE REQUIRED TO DEFEND. Date: Seal of Court CURTIS R. LONG Prothonotary By Deputy CERTIFICATE OF SERVICE I, Sarah W. Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United r States mail, postage prepaid, on the :YJ day of 2005: Michael A. Scherer, Esquire 19 West South Street Carlisle, PA 17011 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP By: arch W. Arosell, Esquire rn mumAs, THOMAS, R HAFFR FAN No. 717P377105 VERIFICATION P. 02 I, Michael J. McCaffrey, state that I am an authorized representetlve of Rite Aid of Pennsylvania, Inc., that I make this Verification on behalf of Defendant Rite Aid of Pennsylvania. Inc, and that I have read the foregoing COMPLAINT AGAINST ADDITIONAL DEFENDANT GENERAL HEALTHCARE RESOURCES which han been drafted with the assistance of counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowiecip, information and belief. This statement and verification is made subject to the pemalties of iB Pa.C.S.A. § 4A04 relating to unsworn falsification to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Mich Mlch el J. A4cC ray, R.Ph. Pharmacy Development Manager Rite Aid of Pennsylvania, Inc. DATE; August 2, 2005 CERTIFICATE OF SERVICE I, Sarah W. Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the j day of , 2005: Michael A. Scherer, Esquire O'BRIEN, BARIC & SCHERER 19 West South Street Carlisle, PA 17011 Attorneys for Plaintiffs General Healthcare Resources Legal Department Hickory Point 2250 Hickory Road, Suite 240 Plymouth Meeting, PA 19462 THOMAS, THOMAS & By: W. Arosell, Esquire LLP ?..> ?;) -?i ' .rt t '--} ANDREW FISH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO: 05 -1836 SWIFT TRANSPORTATION CO. : JURY TRIAL DEMANDED ANSWER TO NEW MATTER OF DEFENDANT AND NOW, comes Plaintiff by and through his attorney, Karl E. Rominger, Esquire and answers Defendants, New Matter as follows: 13. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 14. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 15. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 16. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 17. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 18. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 19. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 20. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 21. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 22. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 23. Denied. By further answer Plaintiff did sustain $1,136.34 worth of damages to his vehicle as a result of this incident. 24. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 25. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 26. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 27. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 28. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. 29. A conclusion of law and requires no answer. By way of further answer if an answer is deemed required, it is denied. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant. Date: 2 0 0-)- Respectfully Submitted, ROMINGER, BAYLEY & WHARE Karf E Rominger, Esquire 155 South Hanover Street Carlisle, Pa 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Plaintiff ANDREW FISH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: 05 -1836 SWIFT TRANSPORTATION CO. : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Answer to New Matter of Defendant upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Francis J. Deasey, Esquire Troy D. Sisum, Esquire DEASEY, MAHONEY & BENDER, LTD. Suite 1300 1800 John F. Kennedy Blvd. Philadelphia, Pa 19103-2978 Date: 0,6 12, / 20o7 Respectfully Submitted, l ` ROMIhLGER, BAYLEY & WHARE Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pa 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Plaintiff ANDREW FISH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW : NO: 05 -1836 SWIFT TRANSPORTATION CO. : JURY TRIAL DEMANDED VERIFICATION I, KARL E. ROMINGER, ESQUIRE, states that he is the attorney for, Plaintiff in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa. C. S. §4904, relating to unworn falsification to authorities. Date: / L/ 12 26e Karl E. Rominger, Esquire Attorney for Plaintiff G l . ci i C7 fl, - N 6 3i Q DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 By: TROY D. SISUM, ESQUIRE Identification No. 89145 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 534.22076 Attorneys for Defendant, Swift Transportation Co. ANDREW FISH, vs. Plaintiff(s), SWIFT TRANSPORTATION CO., COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 05-1836 JURY TRIAL DEMANDED Defendant(s). MOTION TO COMPEL Defendant, Swift Transportation Co., by and through their attorneys, Deasey, Mahoney & Bender, Ltd., hereby move this Court for an Order pursuant to Pa.R.C.P. 4019 compelling Plaintiff to respond to Defendant's Interrogatories and Request for Production of Documents, and in support thereof avers as follows: On September 22, 2005, Defendant, Swift Transportation Co. served Interrogatories, Expert Interrogatories and Requests for Production of Documents upon counsel for Plaintiff by regular mail. 2. On October 19, 2005, counsel for Defendant contacted counsel for Plaintiff by telephone to advise that his answers to Defendant's discovery were due. On November 22, 2005, counsel for Defendant forwarded counsel for Plaintiff a letter requesting answers to this outstanding discovery. Counsel for Defendant send revised interrogatories to counsel for Plaintiff reducing the number of interrogatory requests to 40, as provided by the rules of this Court. A true and correct copy of Defendant's revised Interrogatories and correspondence to Plaintiff is attached hereto as "Exhibit A." 4. Plaintiff has failed to respond to Defendant's Interrogatories and Requests for Production of Documents, and no attempt has been made to seek a protective order. Defendant, Swift Transportation Co., requires Plaintiff s discovery responses to properly prepare its defense of this action. WHEREFORE, Defendant, Swift Transportation Co. respectfully requests that this Honorable Court enter an Order Compelling Discovery in the form of the proposed Order attached hereto. Respectfully submitted, DEASEY, MAHONEY & BENDER, LTD. By: TRO . SISUM, ESQUIRE DATED: DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE Identification No. 25699 By: TROY D. SISUM, ESQUIRE Identification No. 89145 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, Pa 19103-2978 (215) 587-9400 534.22076 Attorneys for Defendant, Swift Transportation Co. ANDREW FISH, vs. Plaintiff(s), SWIFT TRANSPORTATION CO., COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 05-1836 JURY TRIAL DEMANDED Defendant(s). MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Defendant, Swift Transportation Co. (hereinafter "Defendant"), by and through their attorneys, Deasey, Mahoney & Bender, Ltd., files this Memorandum of Law in Support of Defendant's Motion to Compel Answers to Interrogatories and Request for Production of Documents against Plaintiff. MATTER BEFORE THE COURT Defendant's Motion to Compel Answers to Interrogatories and Request for Production of Documents pursuant to Pa.R.Civ.P. 4019(c). STATEMENT OF QUESTION(S) INVOLVED Whether the Court may enter an Order requiring Plaintiff to provide meaningful answers to Interrogatories and Request for Production of Documents under Pa.R.Civ.P. 4005? Proposed Answer: Yes. FACTS On September 22, 2005, Defendant, Swift Transportation Co. served Interrogatories, Expert Interrogatories and Requests for Production of Documents upon counsel for Plaintiff by regular mail. On October 19, 2005, counsel for Defendant contacted counsel for Plaintiff by telephone to advise that his answers to Defendant's discovery were due. On November 22, 2005, counsel for Defendant forwarded counsel for Plaintiff a letter requesting answers to this outstanding discovery. Counsel for Defendant send revised interrogatories to counsel for Plaintiff reducing the number of interrogatory requests to 40, as provided by the rules of this Court. Plaintiff has failed to respond to Defendant's Interrogatories and Requests for Production of Documents, and no attempt has been made to seek a protective order. Defendant, Swift Transportation Co., requires Plaintiffs discovery responses to properly prepare its defense of this action. ARGUMENT Under Pennsylvania Rule of Civil Procedure 4019(a)(1), the Court may enter an order compelling discovery if a party fails to serve sufficient answers or objections to written interrogatories under Pa.R.Civ.P. 4005. The purpose of discovery is to prevent surprise and unfairness and to allow a fair trial on the merits of the action. Dominick v. Hanson, 2000 Pa. Super 158, 753 A.2d 824, 826 (2000). Under Pa.R.Civ.P. 4019, a court may enter an order directing a party to answer discovery if a party "fails to make discovery or to obey an order of court respecting discovery." Pa.R.Civ.P. 4019(a)(1)(viii). The decision whether to sanction a party is within the discretion of the trial court. McGovern v. Hosp. Serv. Ass'n of Northeastern PA., 2001 Pa. Super 304, 785 A.2d 1012, 1015 (2001). Absent a finding that the trial court abused its discretion, the Superior Court will not reverse an order sanctioning a party which the trial court found necessary and proper. Id., citing Croydon Plastics Co. Inc. v Lower Bucks Cooling & Heating, 698 A2d 625, 628 (Pa. Super. 1997). In the current matter, defendant served Interrogatories and Request for Production of Documents upon Plaintiff pursuant to Pa.R.Civ.P. 4005. Counsel for defendant forwarded a letter to counsel for Plaintiff requesting answers to this outstanding, discovery. To date, plaintiff has failed to respond to these outstanding Interrogatories and Request for Production of Documents, and no attempt has been made to seek a protective order. Defendant requires answers to this discovery in order to prepare its defenses to this action. RELIEF WHEREFORE, Defendant, Swift Transportation Co. respectfully requests that this Honorable Court enter an Order Compelling Discovery in the form. of the proposed Order attached hereto. Respectfully submitted, DEASEY, MAHONEY & BENDER, LTD. By. ATISISUM., ESQUIRE DATED: 7 ©? VERIFICATION The undersigned attorney hereby certifies that I am the attorney for Defendant in this matter; that the information contained in the attached motion is true and correct to the best of my information and belief; and that this statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. DEASEY, MAHONEY & BENDER, LTD. By: TRO . SISUM, ESQUIRE Attorneys for Defendant 1 Swift Transportation Co. Date: O S CERTIFICATE OF SERVICE I, TROY D. SISUM, ESQUIRE, hereby certify that I have served upon all person(s) listed below a true and correct copy of Defendant, Swift Transportation Company's, Motion to Compel Answer to Interrogatories and Request to rProduction of Documents, in this matter By First Class Mail: Karl E. Rominger, Esquire ROMINGER, BAYLEY and WHARE 155 South Hanover Street Carlisle, PA 17013 D. SISUM, ESQUIRE Date: December 7. 2005 VERIFICATION The undersigned attorney hereby certifies that I am the attorney for Defendant in this matter; that the information contained in the attached motion is true and correct to the best of my information and belief; and that this statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. DEASEY, MAHONEY & BENDER, LTD. By: T TRO . SISUM, ESQUIRE Attorneys for Defendant Swift Transportation Co. Date: GS ?n ?J l [ ? i 4 1 f `? ANDREW FISH, Plaintiff V. SWIFT TRANSPORTATION CO., INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1836 CIVIL TERM ORDER OF COURT AND NOW, this 15TH day of December, 2005, upon consideration of Defendant's Motion To Compel, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, ,vf(arl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Troy D. Sisum, Esq. , Francis J. Deasey, Esq. 1800 John F. Kennedy Blvd. Suite 1300 Philadelphia, PA 19103-2978 Attorneys for Defendant 6e :rc -, ,?? Curtis R. Long Prothonotary office of the 3protbuttotarp Cumberianb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor -(),5 -1831a CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6571