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HomeMy WebLinkAbout15-0226 Supreme CouiF&C-Pennsylvania Cour. > f-Comm_ o leas For Prothonotary Use Only. Cil�CiaVer�Sh., . t Docket N. ( -N, i 1 . .... CUM 1 Ra ` County CD The information collected on this form is used solely,for court administration purposes. This form does not cD supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint l3 Writ of Summons Petition Transfer from Another Jurisdiction Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: MICHAEL GISEWHITE PETER J. RACKLEY and CAPITAL CITY CAB SERVICJ El Dollar Amount Requested: ®within arbitration limits I Are money damages requested? ®Yes n No (check one) ®x outside arbitration limits o N Is this a Class Action Suit? 0 Yes No Is this an MDJAppeal? Yes G No A Name of Plaintiff/Appellant's Attorney: DAVID J. FOSTER, ESQUIRE Check here if you have no attorney (are a Self-Represented 1Pro Sel Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Russ Tort) CONTRACT(do not include Judgments) CIVIL APPEALS M Intentional ® Buyer Plaintiff Administrative Agencies l3 Malicious Prosecution Debt Collection:Credit Card ® Board of Assessment Motor Vehicle Q Debt Collection:Other Q Board of Elections Nuisance Dept.of Transportation ® Premises Liability 8 Statutory Appeal:Other S Q Product Liability(does not include E mass tart) ® Employment Dispute: Slander/Libel/Defamation Discrimination ® C l3 Other: Employment Dispute:Other ® Zoning Board T NEGLIGENCE Other: I ® Other: o MASS TORT 0 Asbestos N ® Tobacco Toxic Tort-DES ® Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS [ Toxic Waste Other: ® Ejectment [3 Common Law/Statutory Arbitration B ® Eminent Domain/Condemnation ® Declaratory Judgment ® Ground Rent ® Mandamus Q Landlord/Tenant Dispute B Non-Domestic Relations Q Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial ®Quo Warranto ® Dental ® Partition Replevin E3 Legal ® Quiet Title ®Other: Medical Q Other: l3 Other Professional: Updated 1/1/2011 t i Costopoulos, Foster& Fields �~ ' ' 4(' avid J. Foster, Esquire 831 Market Street Attorney I.D. 23151 Lemoyne, PA 17043 ., ,1 Mail: dionfosterau.aol.com Phone: 717.761.2121 Fax: 717.761.4031 Attorney for Plaintiffs MICHAEL GISEWHITE, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA 11 . NO. go6c) a0 IUB V. CIVIL ACTION — LAW PETER J. RACKLEY and CAPITAL CITY CAB SERVICE, INC., Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights 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 32 South Bedford Street Carlisle, Pennsylvania 17013 Phone No.: (717) 249-3166 C-S ar�� � t MICHAEL GISEWHITE, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA . NO. V. CIVIL ACTION — LAW PETER J. RACKLEY and . _ CAPITAL CITY CAB SERVICE, INC., Defendants : JURY TRIAL DEMANDED PLAINTIFF'S COMPLAINT AND NOW comes the Plaintiff, Michael Gisewhite, by and through his attorney, David J. Foster, Esquire, Costopoulos, Foster & Fields, and respectfully represents as follows in support of this Complaint: The Parties 1. Plaintiff, Michael Gisewhite, is an adult individual residing at 34 Drew Avenue, New Bloomfield, Perry County, Pennsylvania 17068. 2. Defendant, Peter J. Rackley, is an adult individual residing at the 924 Manada Street, P.O. Box 31, Harrisburg, Dauphin County, Pennsylvania 17104. 3. Defendant, Capital City Cab Service, Inc., is a close corporation duly organized under the laws of the Commonwealth of Pennsylvania and duly licensed by the Pennsylvania Public Utility Commission to provide taxi cab service with a registered office address at 2016 Paxton Church Road, Harrisburg, Dauphin County, Pennsylvania 17110 and a main place of business located at 326 South Front Street, Steelton, Dauphin County, Pennsylvania 17113-2527. 4. At all relevant times herein, Defendant, Peter J. Rackley, was an employee, servant and/or actual or ostensible agent of Defendant, Capital City Cab Service, Inc., as -1- a taxi cab driver and was acting within the scope of those capacities. Background Allegations 5. The events giving rise to this cause of action occurred in the afternoon hours on or about March 15, 2014 in the parking lot of the Kentucky Fried Chicken fast-food restaurant at 313 Lowther Street, Lemoyne, Cumberland County, Pennsylvania. 6. At the aforesaid time and place, Plaintiff, Michael Gisewhite,was driving into the parking lot of the restaurant together with his girlfriend and their infant child and encountered Defendant, Peter J. Rackley, who was driving a taxi cab minivan owned by Defendant, Capital City Cab Service, Inc.. 7. After Plaintiff, Michael Gisewhite, and his girlfriend and their infant child left their vehicle and were walking toward the restaurant, Defendant, Peter J. Rackley, left his taxi cab and pursued the Plaintiff, apparently upset over his driving, and engaged him in an argument. 8. Defendant, Peter J. Rackley, in the course of this apparent road-rage incident, then struck the Plaintiff, Michael Gisewhite, in the face and throat, violently and forcefully, thereby causing him serious and permanent injuries and damages which are set forth in detail below. Count 1• Plaintiff v Defendant Peter J Rackley—Assault and Battery 9. The allegations set forth in paragraphs 1 through 8 above are incorporated herein by reference as if set forth in full. 10. As averred above, Defendant, Peter J. Rackley, intentionally and maliciously struck the Plaintiff, Michael Gisewhite, in the throat, thereby committing an assault and battery on the person of Plaintiff, Michael Gisewhite. -2- 11. The assault and battery committed on the person of Plaintiff,Michael Gisewhite, by Defendant, Peter J. Rackley, was a substantial factor in causing the injuries and damages to Plaintiff as set forth in detail below. 12. As a direct and proximate result of the assault and battery committed by Defendant, Peter J. Rackley, the Plaintiff, Michael Gisewhite, sustained a fractured hyoid bone in his neck and a lacerated vocal cord which required surgery. 13. As a further direct and proximate result of the assault and battery committed by Defendant, Peter J. Rackley, the Plaintiff, Michael Gisewhite, sustained a serious strain and sprain of his cervical spine and possible nerve damage. 14. As a further direct and proximate result of the assault and battery committed by Defendant, Peter J. Rackley, the Plaintiff, Michael Gisewhite, has been required to receive and undergo medical care and treatment and to incur medical expenses, and will be required to continue to receive and undergo additional medical care and treatment and to incur additional medical expenses for an indefinite time in the future. 15. As a further direct and proximate result of the assault and battery committed by Defendant, Peter J. Rackley,the Plaintiff, Michael Gisewhite, has suffered physical pain and suffering, mental anguish,emotional distress,embarrassment and humiliation,and will continue to so suffer for an indefinite time in the future. 16. As a further direct and proximate result of the assault and battery committed by Defendant, Peter J. Rackley,the Plaintiff, Michael Gisewhite, has suffered a loss of life's pleasures and will continue to so suffer for an indefinite time in the future. 17. As a further direct and proximate result of the assault and battery committed by Defendant, Peter J. Rackley, the Plaintiff, Michael Gisewhite, has sustained certain -3- e other incidental costs and will continue to so sustain for an indefinite time in the future. 18. The aforesaid conduct of Defendant, Peter J. Rackley, in committing an assault and battery on the person of Plaintiff, Michael Gisewhite, was outrageous, willful, wanton and reckless, thus warranting the imposition of punitive damages. Count If: Plaintiff v Defendant Capital City Cab Service, Inc —Vicarious Liability 19. The allegations set forth in paragraphs 1 through 18 above are incorporated herein by reference as if set forth in full. 20. As averred above, at all relevant times herein, Defendant, Peter J. Rackley,was an employee, servant and/or actual or ostensible agent of Defendant, Capital City Cab Service, Inc., as a taxi cab driver and was acting within the scope of those capacities in . committing an assault and battery on the person of Plaintiff, Michael Gisewhite, as alleged in detail above. 21. Defendant, Capital City Cab Service, Inc., is vicariously liable for the assault and battery committed by Defendant, Peter J. Rackley, who was its employee, servant and/or actual or ostensible agents, on the person of Plaintiff, Michael Gisewhite, as alleged in detail above. 22. The assault and battery committed by Defendant, Peter J. Rackley, who was the employee, servant and/or actual or ostensible agent of Defendant, Capital City Cab Service, Inc., on the person of Plaintiff, Michael Gisewhite, and which assault and battery is imputed to Defendant, Capital City Cab Service, Inc., was a substantial factor in causing the injuries and damages to Plaintiff as set forth in detail above in paragraphs 12 through 18. a 23. As a direct and proximate result of the assault and battery committed by -4- Defendant, Peter J. Rackley, who was the employee, servant and/or actual or ostensible agent of Defendant, Capital City Cab Service, Inc., on the person of Plaintiff, Michael Gisewhite, and which assault and battery is imputed to Defendant, Capital City Cab Service, Inc., the Plaintiff has sustained those injuries and damages set forth in detail above in paragraphs 12 through 18. Count III: Plaintiff v Defendant Capital City Cab Service, Inc. — Statutory Liability 24. The allegations set forth in paragraphs 1 through 23 above are incorporated herein by reference as if set forth in full. 25. As a taxi cab company duly licensed by the Pennsylvania Public Utility Commission, Defendant, Capital City Cab Service, Inc., was required at all times to abide by all statutes, rules and regulations pertaining to a company licensed for the purpose of providing public transportation to members of the general public. 26. The Pennsylvania Public Utilities Code,Title 52, sets forth numerous provisions regarding those persons operating a vehicle on behalf of a common or contract carrier, such as Defendant, Capital City Cab Service, Inc., including having a current driver's license, age restrictions, driver history, criminal history, alcohol prohibition, and controlled substances prohibition. 27. Section 29.505 on "Criminal history" of the Pennsylvania Public Utilities Code, Title 52, provides in full as follows: § 29.505. Criminal history. (a) Criminal history record required. A common or contract carrier may not permit a person to operate a vehicle in its authorized service until it has obtained and reviewed a criminal history record from the Pennsylvania State Police and every other state in which the person resided for the last 12 months. For current drivers, carriers shall obtain a criminal history record by November 9, 2006. -5- (b)Frequency of record check. Following receipt of the initial criminal history record, a common or contract carrier shall obtain and review a criminal history record for each driver operating under its authority from the Pennsylvania State Police every 2 years from the date of the last criminal history check. [c] Disqualification. A common or contract carrier may not permit a person to operate a vehicle in its authorized service when the person was convicted of a felony or misdemeanor under the laws of the Commonwealth or under the laws of another jurisdiction,to the extent the conviction relates adversely to that person's suitability to provide services safely and legally. (d) Record retention. A copy of the criminal history shall be maintained by the common or contract carrier for at least 3 years. 52 Pa. Code § 29.505. 28. Upon information and belief, Defendant, Peter J. Rackley, who at all relevant times herein was the employee, servant and/or ostensible or actual agent of Defendant, Capital City Cab Service, Inc., had an extensive prior criminal history in Pennsylvania for felony/misdemeanor convictions including involuntary deviate sexual intercourse,burglary, robbery and forgery. 29. The aforesaid extensive prior criminal history of Defendant, Peter J. Rackley, rendered him unsuitable to provide taxi cab service safely and legally on behalf of his employer, Defendant, Capital City Cab Service, Inc., when operating its vehicle as evidenced by his assault and battery on the person of Plaintiff, Michael Gisewhite. 30. Defendant, Capital City Cab Service, Inc.,violated Section 29.505[c]of Title 52, Pennsylvania Public Utilities Code, by permitting its employee, servant and/or ostensible or actual agent, Defendant, Peter J. Rackley, to operate a vehicle in its authorized services when he had been convicted of felonies/misdemeanors in Pennsylvania to the extent those convictions related adversely on his suitability to provide service safely and legally and, thus, Defendant, Capital City Cab Service, Inc., is statutorily liable for those injuries and -6- damages sustained by Plaintiff, Michael Gisewhite, as averred in detail above. 31. The violation of Section 29.505[c]of Title 52, Pennsylvania Public Utilities Code, by Defendant, Capital City Cab Service, Inc., as averred above, was a substantial factor in causing the injuries and damages to Plaintiff, Michael Gisewhite, as set forth in detail above in paragraphs 12 through 18. 32. As a direct and proximate result of the violation of Section 29.505[c] of Title 52, Pennsylvania Public Utilities Code, by Defendant, Capital City Cab Service, Inc., as averred above,the Plaintiff, Michael Gisewhite, has sustained those injuries and damages set forth in detail above in paragraphs 12 through 18. Count IV: Plaintiff v. Defendant Capital City Cab Service, Inc. — Negligence 33. The allegations set forth in paragraphs 1 through 32 above are incorporated herein by reference as if set forth in full. 34. As averred above, Defendant, Capital City Cab Service, Inc., had the duty to disqualify an operator of a vehicle in its authorized service when such an operator had been convicted of a felony or misdemeanor under Pennsylvania law to the extent the conviction related adversely to that person's suitability to provide service safely and legally. 35. As averred above, Defendant, Peter J. Rackley, the employee, servant and/or actual or ostensible agent of Defendant, Capital City Cab Service, Inc., at all relevant times herein, had multiple felony/misdemeanor convictions in Pennsylvania which related adversely to his suitability to operate a vehicle in authorized service and to provide service safely and legally. 36. Defendant, Capital City Cab Service, Inc., breached its duty and acted negligently and carelessly in that it: -7- a) permitted Defendant, Peter J. Rackley, to operate a vehicle in its authorized service when he had been convicted of multiple felonies/misdemeanors in Pennsylvania to the extent they related adversely to his suitability to provide service safely and legally; b)failed to ascertain whether Defendant, Peter J. Rackley, had a prior criminal history in Pennsylvania or elsewhere to the extent such conviction or convictions would relate adversely on his suitability to provide service safely and legally; c) knew or should have known through the exercise of reasonable diligence that Defendant, Peter J. Rackley, had been convicted of multiple felonies/misdemeanors in Pennsylvania to the extent they related adversely to his suitability to provide service safely and legally; and d) failed to preclude Defendant, Peter J. Rackley, from operating a vehicle in its authorized service in light of his extensive prior criminal record which rendered him manifestly incapable or providing service safely and legally under Pennsylvania law. 37. The aforesaid breach of duty and negligence and carelessness of Defendant, Capital City Cab Service, Inc., as averred above, was a substantial factor in causing the injuries and damages to Plaintiff, Michael Gisewhite, as set forth in detail above in paragraphs 12 through 18. 38. As a direct and proximate result of the aforesaid breach of duty and negligence and carelessness of Defendant, Capital City Cab Service, Inc., as averred above, the -8- Plaintiff, Michael Gisewhite, has sustained those injuries and damages set forth in detail above in paragraphs 12 through 18. Conclusion WHEREFORE, Plaintiff, Michael Gisewhite, based on the foregoing allegations, hereby demands judgment in his favor and against Defendants, Peter J. Rackley and Capital City Cab Service, Inc., jointly and severally, in an amount in excess of the compulsory arbitration limits, including punitive damages against Defendant, Peter J. Rackley, together with costs and interest as provided by law. RESPECTFULLY SUBMITTED: David J. Fos r, Esquire I.D. No. 23151 COSTOPOULOS, FOSTER & FIELDS 831 Market Street Lemoyne, Pennsylvania 17043-1518 Phone: 717.761.2121 Fax: 717.761.4031 Email: djonfostera-aol.com Web: www.Costopoulos.com ATTORNEY FOR PLAINTIFF DATED: January 7, 2015. -9- Verification I, Plaintiff, Michael Gisewhite, do hereby verify that the averments of fact made in the foregoing document are true and correct to the best of my personal knowledge and/or information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. By: Mic a Gi hite DATED: December�, 2014. -11-