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HomeMy WebLinkAbout06-2312Johnson, Duffle, Stewart & Weidner By: John A. Stater, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com BFL, INC. 1883 South State Road 161 Rockport, IN 47635 Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE 3500 Wellington Drive Hurricane, WV 25526 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ENTERPRISE TRANSPORTATION CO. 2727 North Loop West :NO, Dl? a 3 /a Iu P.O. Box 4324 Houston, TX 77210-4324 Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND To the Defendant: 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 defense 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 TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AV/SO USTED HA SIDO DEMANDADO(A EN CORTE. Si usted desea defenderse de ]as demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com Attorneys for Plaintiff BFL, INC. : IN THE COURT OF COMMON PLEAS 1883 South State Road 161 : CUMBERLAND COUNTY, PENNSYLVANIA Rockport, IN 47635 Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE 3500 Wellington Drive CIVIL ACTION - LAW Hurricane, WV 25526 ENTERPRISE TRANSPORTATION CO. 2727 North Loop West :NO. DL - 23 /d, P.O. Box 4324 Houston, TX 77210-4324 Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, BFL, Inc., by and through its attorneys, Johnson, Duffie, Stewart & Weidner, P.C., and avers in support of its Complaint as follows: 1. The Plaintiff, BFL, Inc. ('BFL"), is an Indiana corporation with a principal place of business located at 1883 South State Road 161, Rockport, Indiana,47635. 2. Defendant, Eric Cole, Administrator for the Estate of Keith Cole (the "Estate"), upon information and belief, is an adult individual with a residence located at 3500 Wellington Drive, Hurricane, West Virginia 25526. 3. On or about April 10, 2006, the Estate of Keith Cole was recorded in the Putnam County, West Virginia Clerk's Office to Book 22, Page 566; and Eric Cole was named the Administrator of the Estate. 4. Keith Cole ("Cole") perished as a result of injuries sustained in the accident at issue in this Complaint. 5. The Defendant, Enterprise Transportation Co. ("Enterprise'), upon information and belief, is a Texas corporation with a principle place of business located at 2727 North Loop West, Houston, TX 77210; and operates business within the Commonwealth of Pennsylvania and has filed its fictitious name with the Pennsylvania Department of State, Corporations Bureau, naming Enterprise Products Co. as owner. 6. Cole and Enterprise were engaged in the stream of commerce in the Commonwealth of Pennsylvania at the time the cause of action arose. Therefore, those Defendants, engaged in transportation of products across state lines, purposefully availed themselves of the highways and roadways, and protection and benefits of the laws of the Commonwealth of Pennsylvania. 7. The events which give rise to the allegations complained in this Complaint occurred on February 10, 2006, in Upper Frankford Township, Cumberland County, Pennsylvania. 8. At all material times, BFL's tractor-trailer was being operated in a lawful manner and was lawfully proceeding eastbound on Interstate 76/Pennsylvania Turnpike. 9. At all materials times, Cole was the operator of, and in exclusive possession and control of, a tractor-trailer owned by Enterprise. 10. At all material times, Cole was operating said tractor-trailer within the course and scope of his employment with Enterprise or, in the alternative, as a contractor within the course and scope of a lease agreement with Enterprise, and with direct authority, consent and permission of Enterprise. 11. At all material times, Cole was operating the tractor-trailer owned by Enterprise on Interstate Route 76/Pennsylvania Turnpike in a eastbound direction behind BFL's tractor- trailer. 12. At all material times, Cole was operating the tractor-trailer owned by Enterprise, in the right-hand travel lane in a eastbound direction on Interstate Route 76/Pennsylvania Turnpike in a eastbound direction behind BFL's tractor-trailer. 13. Cole operated the tractor-trailer owned by Enterprise in a negligent manner, and caused the tractor-trailer he was operating to impact the rear of the tractor-trailer owned by BFL. 14. As a result of the accident of February 10, 2006, BFL sustained the following damages: a. Property damages to its tractor-trailer in the amount of $14,210.50; b. Loss of use of the tractor trailer resulting in a downtime claim of $2,178.00; and c. Expenses in the amounts of $4,381.10 incurred for wrecker and towing charges and other miscellaneous expenses related to the accident. COUNT I - NEGLIGENCE BFL. Inc. v. Eric Cole, Administrator for the Estate of Keith Cole 15. The averments contained in paragraphs 1 through 14 are incorporated herein by reference. 16. Cole owed a duty to BFL to use due care and caution in the operation and control of the tractor-trailer driven by Cole. 17. Contrary to the duties owed to BFL, Cole was negligent, careless and reckless in the operation of the tractor-trailer. 18. The damages set forth herein were caused by, and were the direct and proximate result of, the negligence, carelessness and recklessness of Cole, including but not limited to the following particulars: a. Operating the tractor-trailer at a dangerous and excessive rate of speed for the conditions; b. Failing to keep alert and/or awake and maintain a proper and adequate lookout for other vehicles which were lawfully traveling in an easterly direction on Interstate 76/Pennsylvania Turnpike in front of him; C. Failing to maintain his tractor-trailer under proper and adequate control; d. Causing and/or allowing the tractor-trailer he was operating to impact the rear of BFL's trailer; e. Causing, allowing and/or permitted the tractor-trailer he was operating to strike the rear of BFL's trailer; f. Failing to bring the tractor-trailer he was operating to a stop prior to impacting the rear of BFL's trailer; g. Failing to have the tractor-trailer he was operating equipped with proper and adequate brakes and/or braking devices and in otherwise failing to have the tractor-trailer under a safe, proper, adequate and mechanical condition under the circumstances known to Cole; h. Failing to perform reasonable inspections of the tractor-trailer he was operating to ensure that it was equipped with proper and adequate brakes and/or braking devices and that the tractor-trailer was under a safe, proper, adequate and mechanical condition under circumstances known to Cole; and i. Violating the Federal Motor Carrier Safety Regulations, and the traffic laws of the Commonwealth of Pennsylvania pertaining to the operation of vehicles, in violation of 75 Pa. C. S. A. §§3361, 3362, 3714 and 3736, which constitutes negligence as a matter of law. 19. As a direct and proximate result of Cole's negligence, BFL sustained damages as more fully described herein. WHEREFORE, the Plaintiff, BFL, Inc., demands judgment against the Defendant, Eric Cole, Administrator for the Estate of Keith Cole, in the amount of $20,769.60 plus interest thereon from February 10, 2006. COUNT H - NEGLIGENCE BFL. Inc. v. Enterprise Transportation Co. 20. The averments contained in paragraphs 1 through 19 of the Plaintiff's Complaint are incorporated herein by reference. 21. At all material times, Enterprise owned, controlled and operated the tractor-trailer driven by Cole at the time of the accident on February 10, 2006. 22. Enterprise was negligent in its entrustment of its vehicle to Cole when it knew, or should have known, that he was not a competent vehicle operator. 23. At all material times, Cole exhibited an appearance or conduct which should have caused Enterprise, acting by and through its actual or ostensible agents, to perceive that Cole was not a competent or safe vehicle operator. 24. As a direct and proximate result of Enterprise's negligence, BFL sustained damages as more fully described herein. WHEREFORE, the Plaintiff, BFL, Inc., demands judgment against the Defendant, Enterprise Transportation Co., in the amount of $20,769.60 plus interest thereon from February 10, 2006. COUNT 111 - VICARIOUS LIABILITY BFL, Inc, v. Enterprise Transportation Co. 25. The averments contained in paragraphs 1 through 24 of the Plaintiffs Complaint are incorporated herein by reference. 26. At all times relevant to the subject matter of this Complaint, Enterprise held out Cole, who was acting within the course and scope of his apparent authority, as its employee, agent, servant, or, in the alternative, was a contractor under a lease agreement with Enterprise. 27. Pursuant to the Interstate Common Carrier Act and Regulations promulgated by the Interstate Commerce Commission, Enterprise assumed full responsibility for the conduct of Cole on February 10, 2006. 28. As a direct and proximate result of the conduct of Enterprise, BFL sustained damages as more fully described herein. WHEREFORE, the Plaintiff, BFL, Inc., demands judgment against the Defendant, Enterprise Transportation Co., in the amount of $20,769.60 plus interest thereon from February 10, 2006. JOHN N, D ST ART & WEIDNER By: John A. Statler, re Attorney I.D. No. 43812 Wade D. Manley Attorney I.D. No. 87244 301 Market Street, P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff 173940 APR-25-2006 TUE 06:21 AM BFL Dispatch FAX NO. 2706880216 P. 02 VERIFICATION I, Micheal Arend, Director of Operations for BFL, Inc., hereby acknowledge that BFL, Inc. is the Plaintiff in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing Complaint; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. BFL, INC. By: / Michael Arend, Director of Operations DATE: z f C 0'1 c5' Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com Attorneys for Plaintiff BFL, INC. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and NO. 06-2312 CIVIL TERM ENTERPRISE TRANSPORTATION CO., Defendants : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE The Complaint in this matter was served by Certified Mail upon Defendant Eric Cole, Administrator for the Estate of Keith Cole and same was received and accepted on May 2, 2006, as reflected on the Return Receipt card, a copy of which is attached hereto. DATE: S J 8 /OG JO DUFFIE, STEWART & WEIDNER By: L??7- - John A. Stat uire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :274863 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Affidavit of Service upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 1 day of , 2006, addressed to the following: Mr. Eric Cole Administrator for the Estate of Keith Cole 3500 Wellington Drive Hurricane, WV 25526 Enterprise Transportation Co. 2727 North Loop West P.O. Box 4324 Houston, TX 77210-4324 JOHNSON, DUFFIE, STEWART & WEIDNER 4 -- -- By: John A. S -a uire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff ry ? < cry '17 mm q C?-' t rT7 $? ".? 41 C1 :(7 V Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com Attorneys for Plaintiff BFL, INC. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and NO. 06-2312 CIVIL TERM ENTERPRISE TRANSPORTATION CO., Defendants : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE The Complaint in this matter was served by Certified Mail upon Defendant Enterprise Transportation Co. and same was received and accepted on May 1, 2006, as reflected on the Return Receipt card, a copy of which is attached hereto. DATE: S I e /or, J DUFFIE, STEWART & WEIDNER By: John A. tie[ Esquire Attorney I.D. No. 3812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :274861 CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Affidavit of Service upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the ? day of 2006, addressed to the following: Mr. Eric Cole Administrator for the Estate of Keith Cole 3500 Wellington Drive Hurricane, WV 25526 Enterprise Transportation Co. 2727 North Loop West P.O. Box 4324 Houston, TX 77210-4324 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Statler, e Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 7614540 Attorneys for Plaintiff TJ 7 rn rn ' M1 Z ? 1 i3.? ' fJa W C ) ? c ? J Cs c r- Delano M. Lantz I.D. No. 21401 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 BFL, INC., Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CO., Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2312 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Delano M. Lantz, Esquire, Curtis N. Stambaugh, Esquire and McNees Wallace & Nurick LLC as counsel for Defendants, Eric Cole, Administrator for the Estate of Keith Cole, and Enterprise Transportation Company. McNEES WAY-LACE & NU By Delano M. LWtz I. D. #21401 \(? Curtis N. Stambaugh . D. #80565 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: May 10, 2006 Attorneys for Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid upon the following: John A. Statler, Esquire Johnson, Duffle, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Delano M. Lantz Dated: May 10, 2006 na C- =-:1 -n _ z, `5 .-? M Ta n :. -? z I" -- ?m Q -- c ? Q "? Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorneys for (717) 237-5348 BFL, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CIVIL ACTION - LA CO., Defendants JURY TRIAL DEMA DED NOTICE TO PLEAD TO: BFL, INC., Plaintiff and JOHN A. STATLER, ESQUIRE, i s attorney You are hereby notified to file a written response to the unclosed Answer with New Matter and Counterclaim within twenty (20) days from se ice hereof or a judgment may be entered against you. NU Delano M. Lan I. D. #21401 100 Pine Street, P.O. 166 Harrisburg, PA 7108-1166 (717) 237-5348 Attorneys for Dated: May 30, 2006 Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorneys for (717) 237-5348 BFL, INC., : IN THE COURT OF Plaintiff : CUMBERLAND CO V. : NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CIVIL ACTION - CO., Defendants : JURY TRIAL AND NOW come Defendants, Eric Cole, Administrator Cole, and Enterprise Transportation Company, by and through Wallace & Nurick LLC, and answers the Complaint as follows: 1. Admitted. 2. Admitted. MON PLEAS , PENNSYLVANIA DED the Estate of Keith attorneys, McNees 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. Enterprise is a registered trade name owned by EPCO, Inc., a Texas 6. Admitted in part and denied in part. It is admitted 2006 Cole was operating a tractor-trailer unit owned by Entei goods on Interstate 76/Pennsylvania Turnpike in the Commo The remaining averments of Paragraph 6 constitute conclusii answer and are therefore denied. 7. Admitted. 8. Denied. As set forth more fully below, on tractor-trailer was being operated in an unlawful manner, had of the eastbound side of Interstate 76/Pennsylvania Turnpike the Commonwealth of Pennsylvania in attempting to move frc position into the eastbound travel lane of Interstate 76 in viofa laws of the Commonwealth of Pennsylvania as more fully set violations of law and the rules of the road were the direct, pro collision. 9. Admitted. 10. Admitted. Cole was operating the Enterprise and scope of his employment with Enterprise. 11. Admitted in part and denied in part. Admitted Cole was operating the tractor-trailer unit owned by Enterprise c -2- Company on February 10, that was transporting of Pennsylvania. of law which require no i 10, 2006, BFL's illegally parked off violated the laws of the illegally parked of the motor vehicle below. Said cause of the in the course at all material times, Interstate 76/Pennsylvania Turnpike in an eastbound direction. Denied 1 tractor-trailer owned by Enterprise in as eastbound direction b, The averments of Paragraph 8 are incorporated herein by refE that Rex Payton and the BFL unit were traveling eastbound in in front of Keith Cole and the Enterprise unit. Rex Payton, the trailer suddenly and unexpectedly pulled into the right eastbou illegally parked position immediately in front of the Enterprise t of the Commonwealth of Pennsylvania as more fully set forth I 12. Admitted in part and denied in part. The answer incorporated herein by reference. Admitted that Keith Cole v the right hand travel lane. When Rex Payton suddenly and t right eastbound travel lane immediately in front of him, Keith the left eastbound travel lane in an attempt to avoid the colli: unit was traveling in the right eastbound travel lane ahead of 13. Denied. As set forth in Paragraphs 8, 11 and 12 set forth below, Cole operated the tractor-trailer owned by Ente and prudent manner within the right eastbound travel lane of th until the BFL tractor-trailer suddenly and unexpectedly pulled in travel lane from an illegally parked position immediately in front time Cole attempted to avoid a collision by attempting to move travel lane. Despite Mr. Cole's efforts, the right front portion of he was operating the nd BFL's tractor-trailer. Defendants deny right hand travel lane of BFL's tractor- travel lane from an in violation of the laws Paragraph 11 is traveling eastbound in pulled into the partially moved into Denied that the BFL Enterprise unit. and as more fully in a reasonable Pennsylvania Turnpike the right eastbound Mr. Cole at which the left eastbound tractor struck the left -3- rear portion of the BFL trailer. The collision was caused by the Payton, BFL's driver. 14. Denied. After reasonable investigation, knowledge or information sufficient to form a belief as to the Paragraph 14. The averments are therefore denied and proof COUNT I - NEGLIGENCE 15. The averments contained the answers to incorporated herein by reference. 16. Admitted in part and denied in part. Admitted persons lawfully using the highways to operate his vehicle in of the Commonwealth of Pennsylvania. The paragraph of law which requires no answer and is therefore denied. 17. Denied. The answers to Paragraphs 8, 11, 12 negligence of Rex are without of the averments of demanded. 1 through 14 are Cole owed a duty to all with the laws states a conclusion 13 are incorporated hereby by reference. At all times, Cole operated his vehicle in $ non-negligent, careful manner in accordance with the laws of the Commonwealth of Plennsvlvania. 18. Denied. The answers to Paragraphs 8, 11, 12 anb 13 are incorporated herein by reference. Denied that Cole operated the tractor-trail?r owned by Enterprise in a negligent, careless or reckless manner and, on the contrarf, at all times Cole operated the tractor-trailer unit in a non-negligent, careful man the laws of the Commonwealth of Pennsylvania. The through (i) are denied and, as to said averments, Defendants in accordance with in subparagraphs (a) state as follows: -4- a b. C. d Denied. Denied that Cole operated the tractor-trailer at an excessive speed for the conditions and, on the contrary, operated the unit at a reasonable and safe speed for?the conditions; Denied. Defendant Cole kept alert and awoke and maintained a proper and adequate lookout for other vehi 'es which were lawfully traveling in an easterly direction on Intersta a 76/Pennsylvania Turnpike. Keith Cole took evasive action i an effort to avoid striking the right rear corner of Plaintiffs un t when Rex Payton suddenly and without warning entered into he right eastbound lane immediately in front of Keith Cole after puling out from an illegally parked position along the right side of the astbound travel lane of the Turnpike; Denied. At all times Keith Cole maintained his tractor-trailer unit under proper and adequate control. He took action to move to the left lane in order to try to avoid Plaintiffs unit when Rex Payton suddenly and unexpectedly pulled from be ng the parked position off the right side of the Turnpike into the ri ht eastbound travel lane immediately in front of Mr. Cole in violatio of the laws of the Commonwealth of Pennsylvania; Denied. Denied that Cole "caused or allo? ed" his tractor-trailer unit to impact the rear of BFL's trailer because?of any negligence on his part. On the contrary, Cole, when co with the sudden -5- emergency created by Rex Payton's sudden and unexpected e. f 9• h movement into the right eastbound travel I ne from an illegally parked position, undertook efforts to avoid :triking the right rear corner of the BFL trailer. Despite his efforto to avoid a collision, the right front portion of his unit collided with th left rear portion of BFL's trailer without any negligence on the part of Cole and solely as a result of the negligence of BFL and it operator; Denied. The answer to 18(d) is incorporat§d herein by reference; Denied. The answers to 18(a) through (e) are incorporated herein by reference; Denied. The tractor-trailer Cole was operating was equipped with proper and adequate brakes and braking devices and was otherwise in a safe, proper and adequate mechanical condition; Denied. Denied that Cole failed to perform reasonable inspections of the tractor-trailer he was operating and, Ion the contrary, reasonable inspections were performed tol check that the vehicle was equipped with proper and adequate brakes and/or braking devices and that the tractor-trailer was in 4 safe, proper and adequate mechanical condition under the Cole and as in fact existed; and Denied. Denied that Cole operated the known to in violation of Federal Motor Carrier Safety Regulations Or the laws of the -6- Commonwealth of Pennsylvania and, on his unit in a safe, proper and prudent the laws of the Commonwealth of Federal Motor Carrier Safety Regulations. operated his vehicle at a safe speed that % prudent under the conditions then existing to bring his vehicle to a stop within the asc ahead, he operated his unit within the app operated his vehicle in a careful manner safety of persons or property, and he was manner whatsoever. 19. Denied. Denied that Cole was negligent in any respect to BFL's alleged damages, after reasonable investigal without knowledge or information sufficient to form a belief as averments with regard to such damages. The averments are proof thereof demanded. WHEREFORE, Defendant, Eric Cole, Administrator for hereby demands the entry of judgment in favor of the Estate Inc. contrary, Cole operate it in accordance with inia and applicable n particular, he s reasonable and nd that permitted him -ed clear distance phate speed limits, he i due regard for the )t negligent in any nner whatsoever. With i, Defendants are the truth of the :refore denied and Estate of Keith Cole, against Plaintiff, BFL, -7- COUNT II - NEGLIGENCE 20. The averments set forth in the answers to are incorporated herein by reference. 21. Admitted. 1 through 19 above 22. Denied. The answers to Paragraphs 8, 11, 12, 14, 14, 16, 17,18 and 19 are incorporated herein by reference. At all material times, C vehicle operator based on all information available to Enterpi of the collision on February 10, 2006 and Enterprise was not entrusting the motor vehicle to Cole. 23. Denied. At all times, Cole exhibited the consistent with Cole being a competent, safe operator of 24. Denied. Denied that Enterprise was in any way entrusting the tractor-trailer unit to Cole. Further, as to the damages, after reasonable investigation Enterprise is without sufficient to form a belief as to the truth of the averments and therefore denied and proof thereof demanded. WHEREFORE, Defendant, Enterprise Transportation judgment in its favor and against Plaintiff, BFL, Inc. was a competent at and prior to the time in any manner in and conduct tractor-trailer. with regard to regarding BFL's or information averments are demands -8- COUNT III -VICARIOUS LIABILITY 25. The averments set forth in the answers to Paragraphs 1 through 24 above are incorporated herein by reference. 26. Admitted that Cole was an employee acting within the course and scope of his employment at the time of the collision on February 10, 27. Denied. This paragraph states a legal conclusion which requires no answer. 28. Denied. The averments of Paragraphs 8, 11, 12,+13, 14, 16, 17, 18, 19, 22, 23 and 24 are incorporated herein by reference. For the reasons set forth above, denied that the conduct of Enterprise or its employee, Cole, w4s in any way negligent. With respect to BFL's alleged damages, after reasonable inve4tigation, Enterprise is without sufficient knowledge or information to form a belief as tb the truth of the averments and the averments are therefore denied and proof hereof demanded. WHEREFORE, Defendant, Enterprise Transportation Company, demands judgment in its favor and against Plaintiff, BFL, Inc. NEW MATTER 29. The averments set forth in the answers to Paragraphs 1 through 28 above are incorporated herein by reference. 30. At all times, Keith E. Cole operated the tractor-tr iler unit owned by Enterprise Transportation Company in accordance with the la s of the Commonwealth of Pennsylvania and in a reasonable, prudent manner under tlfe circumstances. -9- 31. The BFL tractor-trailer unit was operated by Rex Lane, Owensboro, Kentucky 02303. At all relevant times, he employee of BFL acting within the course and scope of his 32. Several hours prior to the collision that occurred approximately 1:25 a.m., Mr. Payton parked his tractor-trailer the south side of the eastbound travel lanes of the Pen remained parked for several hours. 33. Mr. Payton was parked in the area in violation of (1)(x)(a)(2)(vii) and (viii), and (a)(3)(ii). 34. As Cole was approaching the area of the coil the right eastbound travel lane, Mr. Payton began to pull out been illegally parked and intended to, at some point, enter the lane on the Pennsylvania Turnpike. 35. As Cole was lawfully approaching the area of traveling within the right eastbound lane of travel on Interstate Turnpike, Mr. Payton, in violation of 75 Pa. C.S.A. §3334 attet traffic stream from a parked position when he was unable to n reasonable safety. Instead, Mr. Payton entered into the right on the Turnpike immediately in front of Mr. Cole and pulled int Enterprise vehicle operated by Cole. 36. When confronted with the sudden emergency Keith Cole attempted to move to the left eastbound lane in Payton, 6948 Leah the agent and and employment. February 10, 2006 at a no parking area on Turnpike where he Pa. C.S.A. §3353(a) and lawfully traveling in the place where he had eastbound travel collision and lawfully to enter into the such entry with lane of travel the path of the by Rex Payton, to avoid a collision. -10- He succeeded in moving partially into the left eastbound travel of the negligence of Mr. Payton, he was not able to totally right front corner of his unit impacted on the left rear corner of 37. The collision was solely the result of the discussed above and as set forth more fully in the incorporated herein by reference. 38. Mr. Payton attempted to enter the roadway of in violation of 75 Pa. C.S.A. §3324 which requires that the enter a roadway from any place other than another roadway to all vehicles approaching on the roadway to be entered or 39. Mr. Payton violated 75 Pa. C.S.A. §3312 in that limited access highway from an area other than entrances by public authority in violation of 75 Pa. C.S.A. §3312. Mr the limited access highway from a pull off area where parking 40. Mr. Payton operated his vehicle in careless However, because the collision and the trailer of the BFL unit. of Rex Payton as below, which is Pennsylvania Turnpike of a vehicle about to yield the right-of-way attempted to enter the as are established attempted to enter prohibited, for the safety of persons or property by entering into the right eastbound travel Ilane of the Pennsylvania Turnpike when such movement could not be made without other users of the highway, including Keith Cole, in violation and (b). 41. Mr. Payton was guilty of reckless driving in that willful and wanton disregard for the safety of persons or C.S.A.§3735. ng the safety of 75 Pa. C.S.A. §3714(a) operated his vehicle in in violation of 75 Pa. -11- 42, Mr. Payton negligently failed to realize and failed t keep track of the location of his vehicle relative to the travel lanes of the Pennsyl ania Turnpike and allowed his vehicle to enter into the right eastbound travel lane Keith Cole. 43. Plaintiff is barred from any recovery due to the Rex Payton, or in the alternative, any recovery must be comparative negligence law of the Commonwealth of WHEREFORE, Defendants demand that Plaintiffs prejudice. COUNTERCLAIM 44. The averments set forth in Paragraphs 1 incorporated herein by reference. 45. On February 10, 2006, Rex Payton was the collision at issue in the course and scope of his and Plaintiff is responsible for the acts and omissions of Rex the BFL unit. 46. The February 10, 2006 collision was caused by carelessness and recklessness of BFL, Inc.'s agent or was at all material times acting within the course and scope agency for which negligence and carelessness BFL, Inc. is in front of of its driver, pursuant to the be dismissed with above are the BFL unit involved in or agency with Plaintiff in the operation of negligence, Rex M. Payton, who his employment and/or liable. -12- 47. The negligence, carelessness and recklessness of Rex M. Payton include but are not limited to the following particulars: a. Pulling off of Interstate 76/Pennsylvania Turnpike and illegally parking in a no parking zone in violation of 5 Pa. C.S.A. §3353(a)(1 xx), (a)(2)(vii) and (viii) and (a)( )(ii); b. Negligently failing to keep track of the posi ion of his tractor-trailer unit relative to the travel lanes of the carelessly and negligently operating his the right eastbound travel lane immedia who was lawfully traveling in the right 761Pennsylvania Turnpike and so close to Turnpike and so that it entered in front of Keith Cole lane of Interstate Cole that he was unable to avoid a collision in violation of 7 Pa. C.S. §3334(ii); C. Entering onto the roadway from a parked osition when he was unable to do so without creating an imme late hazard for on- coming vehicles lawfully traveling in the r of the Pennsylvania Turnpike in violation d. Failing to yield the right of way to all vehic roadway, including the Enterprise unit, as enter the roadway from his parked C.S.A.§3324; e. Operating his vehicle in carelessness d eastbound travel lane 75 Pa. C.S. §3334; approaching on the Ir. Payton was about to in violation of 75 Pa. for the safety of persons or property resulting in the death lof Keith Cole and severe -13- damage to Enterprise's property in violation of 75 Pa. C.S.A. §3714(a) and (b). 48. The negligence of BFL's employee and agent, Re; Payton, as set forth above caused the collision that occurred when Mr. Cole, despito his efforts, could not avoid a collision and the right front portion of his tractor struck the left rear corner of the BFL trailer. 49. As a result of the collision, Mr. Cole died from severe burn injuries. 50. As a result of the collision, the Enterprise tractor Onit caught fire and was totally destroyed. The destroyed tractor was a 2004 international with VIN 3HSCNAPR14N022828, License Plate No. P496616, registered in the State of Illinois. The fair market value of the tractor was $75,588.76. 51. The Enterprise tractor was pulling a 1984 Heil tanker, VIN 1 HLF1 D7B2E9E39019. As a result of the collision, the tanker Suffered substantial damage requiring repairs before being placed back into servic4. The repairs have not yet been completed but the estimated cost of the repairs is at (oast $12,349. 52. As a result of the collision, Enterprise lost the us+ of the tractor until a suitable replacement unit could be purchased. Further, Enterprise lost the use of the Heil tanker until the repairs could be completed. The amounts of these damages are being calculated and claim is made for such loss of use. 53. In addition, Enterprise incurred other incidental costs including storage, towing charges and debris removal. These damages are beinb calculated and claim is made for such costs. -14- 54. Enterprise's total property damages as a result of $87,937.76, plus damages for loss of use and other incidental calculated. WHEREFORE, Enterprise Transportation Company favor and against Plaintiff, BFL, Inc., in an amount in excess of compulsory arbitration, together with delay damages and costs I. D. #21401 Curtis N. Stam I.D. #80565 100 Pine Stree P.O. Box 1166 Harrisburg, PA (717) 237-5341 Attorneys for Dated: May 30, 2006 collision are that are being judgment in its limits requiring suit. 17108-1166 -15- VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating unsworn falsification to authorities, I hereby certify that I am the Director of Safety of enterprise Transportation Company and am authorized to verify the foregoing Answer a behalf. I further certify that I have read the foregoing Answer that the facts set forth therein are true and correct to the best information and belief. Counterclaim on its Counterclaim and my knowledge, Dated: May JW , 2006 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true foregoing document was served by first class mail, postage John A. Statler, Esquire Johnson, Duffle, Stewart & 301 Market Street P.O. Box 109 Lemoyne, PA/(7p43-0109 Delano M. correct copy of the upon the following: P.C. Dated: May 30, 2006 C, m T r.? ;ice _.. C 7 u7 1,x,.11 '% J Dw? Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 Attorneys for Defendants BFL, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CIVIL ACTION - LAW CO., Defendants JURY TRIAL DEMANDED STIPULATION The parties, pursuant to Pa. R.C.P. 1033, hereby stipulate and agree as follows: 1. The Defendant identified as Enterprise Transportation Company in the Complaint and in the Answer, New Matter and Counterclaim shall be hereafter identified as "EPCO, Inc." and Enterprise Transportation Company shall be referred to as a division of EPCO, Inc. 2. The claims asserted in the Complaint against Enterprise Transportation Company shall be deemed to have been asserted against EPCO, Inc. 3. The Counterclaim asserted by Enterprise Transportation Company against BFL, Inc. shall be deemed to have been asserted by EPCO, Inc. against BFL. 4. The caption shall be amended to read as follows: BFL, Inc. v. Eric Cole, Administrator for the Estate of Keith Cole and EPCO, Inc., Defendants. JOHNSON, DUFFIE, STEWART & W IDNER, P.C. By John A. I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-0109 McNEES WALLACE & NURICK LLC By Delano M. Lam I. D. No. 21401 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 Attorneys for Plaintiff Dated: June 15, 2006 Attorneys for Defendants -2- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 2. ?day of J LW 2 2006, addressed to the following: Delano M. Lantz Esquire Curtis N. Stambaugh, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. a Esquire Attorney I.D. o. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff ?-; ?-; n ;, t ? ? _: ?- ?,1i ?- ='--, ?.. ?, ?- ?.. r= ?? --- ;, .. :r?? .:.. `? .. r.2 -_,; r•, '_ cy: Delano M. Lantz I . D. No. 21401 Curtis N. Stambaugh I. D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 Attorneys for Defendants BFL, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED V. : REX M. PAYTON, Additional : Defendant COMPLAINT OF EPCO, INC. AGAINST ADDITIONAL DEFENDANT REX M. PAYTON AND NOW comes Defendant, EPCO, Inc., by and through its attorneys, McNees Wallace & Nurick LLC, and sets forth the following Complaint against Additional Defendant Rex M. Payton pursuant to Pa.R.Civ.P. 2252. 1. On April 25, 2006, Plaintiff BFL, Inc. ("BFL") commenced this action to recover for alleged property damage arising out of a February 10, 2006 motor vehicle collision that occurred on Interstate 76/Pennsylvania Turnpike in Cumberland County, Pennsylvania. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 2. On May 31, 2006, Defendants Eric Cole, Administrator for the Estate of Keith Cole, and EPCO, Inc. ("EPCO") filed an Answer with New Matter and a Counterclaim by EPCO. A true and correct copy of the Answer with New Matter and Counterclaim is attached hereto as Exhibit "B." 3. EPCO incorporates herein by reference the Answer with New Matter and Counterclaim. 4. As set forth in the Answer, Enterprise Transportation Company is a registered trade name owned by EPCO, Inc., a Texas corporation. Enterprise Transportation is a division of EPCO, Inc. The company is hereinafter referred to as "EPCO." 5. Additional Defendant Rex M. Payton ("Mr. Payton") is an adult individual residing at 6948 Leah Lane, Owensboro, Kentucky, 42303. 6. At all times relevant hereto, Mr. Payton was an agent and employee of BFL acting within the scope and course of his agency and employment. 7. Mr. Payton was driving a tractor-trailer unit in the scope of his employment with BFL when he was involved in the collision that is the subject of this lawsuit. -2- 8. Several hours prior to the collision that occurred on February 10, 2006 at approximately 1:25 a.m., Mr. Payton parked his tractor-trailer in a no parking area on the south side of the eastbound travel lanes of the Pennsylvania Turnpike where he remained parked for several hours. 9. Mr. Payton was parked in this no-parking area in violation of 75 Pa. C.S.A. §§ 3353(a)(1)(x)(a)(2)(vii) and (viii), and (a)(3)(ii). 10. Keith Cole was operating a tractor-trailer in the scope of his employment with EPCO while traveling on the Pennsylvania Turnpike in an eastbound direction at approximately 1:25 a.m. 11. As Keith Cole was approaching the area of the collision, he was traveling in the right eastbound travel lane. 12. As Keith Cole was approaching the area of the collision and lawfully traveling in the right eastbound travel lane, Mr. Payton suddenly and unexpectedly pulled into the right eastbound travel lane from an illegally parked position immediately in front of Cole and pulled into the path of the EPCO vehicle operated by Cole. 13. When confronted with the sudden emergency created by Mr. Payton, Keith Cole attempted to move to the left eastbound lane in order to avoid a collision. 14. Keith Cole succeeded in moving partially into the left eastbound travel lane, but was not able to avoid totally the collision with Mr. Payton. 15. The right front comer of Cole's tractor impacted on the left rear corner of the trailer of the BFL unit driven by Mr. Payton. -3- 16. As a result of the collision, the EPCO tractor unit caught fire and was totally destroyed. The destroyed tractor was a 2004 International with VIN 3HSCNAPR14N022828, License Plate No. P496616, registered in the State of Illinois. 17. The EPCO tractor was pulling a 1984 Heil tanker, VIN 1 HLF1 D7B2E9E39019. As a result of the collision, the tanker suffered substantial damage requiring repairs before being placed back into service. 18. As a result of the collision, EPCO lost the use of the tractor until a suitable replacement unit could be purchased. 19. As a result of the collision, EPCO lost the use of the Heil tanker until the repairs could be completed. 20. In addition, EPCO incurred other incidental costs including storage, towing charges and debris removal. 21. As a result of the collision, Keith Cole died from severe burn injuries. 22. Mr. Payton violated 75 Pa. C.S.A. § 3334 when he entered into the traffic stream from a parked position when he was unable to make such entry with reasonable safety. 23. As Mr. Payton attempted to enter the roadway of the Pennsylvania Turnpike, he violated 75 Pa. C.S.A. § 3324, which requires that the driver of a vehicle about to enter a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed. -4- 24. Mr. Payton violated 75 Pa. C.S.A. § 3312 in that he attempted to enter the limited access highway from an area other than entrances and exists as are established by public authority. 25. Mr. Payton operated his vehicle in careless disregard for the safety of persons or property by entering into the right eastbound travel lane of the Pennsylvania Turnpike when such movement could not be made without jeopardizing the safety of other users of the highway, including Keith Cole, in violation of 75 Pa. C.S.A. § 3714(a) and (b). 26. Mr. Payton is guilty of reckless driving in that he operated his vehicle in willful and wanton disregard for the safety of persons or property in violation of 75 Pa. C.S.A. § 3735. COUNT I - NEGLIGENCE EPCO, Inc. v. Rex M. Pavton 27. EPCO incorporates herein by reference Paragraphs 1 through 26. 28. At all times relevant hereto, Keith Cole operated the tractor-trailer unit owned by EPCO in accordance with the laws of the Commonwealth of Pennsylvania and in a reasonable, prudent manner under the circumstances. 29. The February 10, 2006 collision was caused by the negligence, carelessness and recklessness of Mr. Payton. 30. The negligence, carelessness and recklessness of Mr. Payton include, but are not limited to, the following particulars: -5- a. Pulling off of Interstate 76/Pennsylvania Turnpike and illegally parking in a no parking zone in violation of 75 Pa. C.S.A. § 3353(a)(1)(x), (a)(2)(vii) and (viii) and (a)(2)(ii); b. Negligently failing to keep track of the position of his tractor-trailer unit relative to the travel lanes of the Pennsylvania Turnpike and carelessly and negligently operating his vehicle so that it entered the right eastbound travel lane immediately in front of Cole who was lawfully traveling in the right eastbound lane of Interstate 76/Pennsylvania Turnpike and so close to Cole that he was unable to avoid a collision in violation of 75 Pa. C.S. § 3334(ii); C. Entering onto the roadway from a parked position when he was unable to do so without creating an immediate hazard for oncoming vehicles lawfully traveling in the right eastbound travel lane of the Pennsylvania Turnpike in violation of 75 Pa. C.S. § 3334; d. Failing to yield the right of way to all vehicles approaching on the roadway, including the EPCO unit, as Mr. Payton was about to enter the roadway from his parked position in violation of 75 Pa. C.S.A. § 3324; e. Operating his vehicle in careless disregard for the safety of persons or property resulting in the death of Keith Cole and severe damage to EPCO 's property in violation of 75 Pa. C.S.A. § 3714(a) and (b). -6- 31. The negligence of Mr. Payton, as set forth above, was the direct and proximate cause of the collision that occurred when Cole, despite his efforts, could not avoid a collision and the right front portion of his tractor struck the left rear corner of the BFL trailer. 32. As a direct and proximate result of the negligence of Mr. Payton, Keith Cole died from severe burn injuries. 33. As a direct and proximate result of the negligence of Mr. Payton, the EPCO tractor unit caught fire and was totally destroyed. The fair market value of the tractor was $75,588.76. 34. As a direct and proximate result of the negligence of Mr. Payton, the Heil tanker suffered substantial damage requiring repairs before being placed back into service. The repairs have not yet been completed but the estimated cost of the repairs is at least $12,349. 35. As a direct and proximate result of the negligence of Mr. Payton, EPCO lost the use of the tractor until a suitable replacement unit could be purchased. Further, EPCO lost the use of the Heil tanker until the repairs could be completed. The amounts of these damages are being calculated and claim is made for such loss of use. 36. As a direct and proximate result of the negligence of Mr. Payton, EPCO incurred other incidental costs including storage, towing charges and debris removal. These damages are being calculated and claim is made for such costs. -7- 37. EPCO 's total property damages as a direct and proximate result of the negligence of Mr. Payton are $87,937.76, plus damages for loss of use and other incidental damages that are being calculated. WHEREFORE, EPCO, Inc., demands judgment in its favor and against Additional Defendant Rex M. Payton, jointly and severally with BFL, Inc., in an amount in excess of the limits requiring compulsory arbitration, together with delay damages and costs of suit. McNEES WALLACE & NURICK LLC By V11 LI ? " Del no M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants Dated: June 26, 2006 -8- Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com BFL, INC. 1883 South State Road 161 Rockport, IN 47635 Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE 3500 Wellington Drive Hurricane, WV 25526 ENTERPRISE TRANSPORTATION CO. 2727 North Loop West P.O. Box 4324 Houston, TX 77210-4324 Defendants To the Defendant: Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.?(?-a3?a ?lv?[ JURY TRIAL DEMANDED 'rt r4? c? CJ J n T1 NOT/CE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense 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 TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 EXHIBIT "A" AV/SO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los pr6ximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com Attorneys for Plaintiff BFL, INC. : IN THE COURT OF COMMON PLEAS 1883 South State Road 161 : CUMBERLAND COUNTY, PENNSYLVANIA Rockport, IN 47635 Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE 3500 Wellington Drive : CIVIL ACTION - LAW Hurricane, WV 25526 ENTERPRISE TRANSPORTATION CO. 2727 North Loop West : NO. P.O. Box 4324 Houston, TX 77210-4324 Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, BFL, Inc., by and through its attorneys, Johnson, Duffie, Stewart & Weidner, P.C., and avers in support of its Complaint as follows: 1. The Plaintiff, BFL, Inc. ("BFL"), is an Indiana corporation with a principal place of business located at 1883 South State Road 161, Rockport, Indiana,47635. 2. Defendant, Eric Cole, Administrator for the Estate of Keith Cole (the "Estate"), upon information and belief, is an adult individual with a residence located at 3500 Wellington Drive, Hurricane, West Virginia 25526. 3. On or about April 10, 2006, the Estate of Keith Cole was recorded in the Putnam County, West Virginia Clerk's Office to Book 22, Page 566; and Eric Cole was named the Administrator of the Estate. 4. Keith Cole ("Cole") perished as a result of injuries sustained in the accident at issue in this Complaint. 5. The Defendant, Enterprise Transportation Co. ("Enterprise"), upon information and belief, is a Texas corporation with a principle place of business located at 2727 North Loop West, Houston, TX 77210; and operates business within the Commonwealth of Pennsylvania and has filed its fictitious name with the Pennsylvania Department of State, Corporations Bureau, naming Enterprise Products Co. as owner. 6. Cole and Enterprise were engaged in the stream of commerce in the Commonwealth of Pennsylvania at the time the cause of action arose. Therefore, those Defendants, engaged in transportation of products across state lines, purposefully availed themselves of the highways and roadways, and protection and benefits of the laws of the Commonwealth of Pennsylvania. 7. The events which give rise to the allegations complained in this Complaint occurred on February 10, 2006, in Upper Frankford Township, Cumberland County, Pennsylvania. 8. At all material times, BFL's tractor-trailer was being operated in a lawful manner and was lawfully proceeding eastbound on Interstate 76/Pennsylvania Turnpike. 9. At all materials times, Cole was the operator of, and in exclusive possession and control of, a tractor-trailer owned by Enterprise. 10. At all material times, Cole was operating said tractor-trailer within the course and scope of his employment with Enterprise or, in the alternative, as a contractor within the course and scope of a lease agreement with Enterprise, and with direct authority, consent and permission of Enterprise. 11. At all material times, Cole was operating the tractor-trailer owned by Enterprise on Interstate Route 76/Pennsylvania Turnpike in a eastbound direction behind BFL's tractor- trailer. 12. At all material times, Cole was operating the tractor-trailer owned by Enterprise, in the right-hand travel lane in a eastbound direction on Interstate Route 76/Pennsylvania Turnpike in a eastbound direction behind BFL's tractor-trailer. 13. Cole operated the tractor-trailer owned by Enterprise in a negligent manner, and caused the tractor-trailer he was operating to impact the rear of the tractor-trailer owned by BFL. 14. As a result of the accident of February 10, 2006, BFL sustained the following damages: a. Property damages to its tractor-trailer in the amount of $14,210.50; b. Loss of use of the tractor trailer resulting in a downtime claim of $2,178.00; and c. Expenses in the amounts of $4,381.10 incurred for wrecker and towing charges and other miscellaneous expenses related to the accident. COUNT I - NEGLIGENCE BFL Inc. v. Eric Cole Administrator for the Estate of Keith Cole 15. The averments contained in paragraphs 1 through 14 are incorporated herein by reference. 16. Cole owed a duty to BFL to use due care and caution in the operation and control of the tractor-trailer driven by Cole. 17. Contrary to the duties owed to BFL, Cole was negligent, careless and reckless in the operation of the tractor-trailer. 18. The damages set forth herein were caused by, and were the direct and proximate result of, the negligence, carelessness and recklessness of Cole, including but not limited to the following particulars: a. Operating the tractor-trailer at a dangerous and excessive rate of speed for the conditions; b. Failing to keep alert and/or awake and maintain a proper and adequate lookout for other vehicles which were lawfully traveling in an easterly direction on Interstate 76/Pennsylvania Turnpike in front of him; C. Failing to maintain his tractor-trailer under proper and adequate control; d. Causing and/or allowing the tractor-trailer he was operating to impact the rear of BFL's trailer; e. Causing, allowing and/or permitted the tractor-trailer he was operating to strike the rear of BFL's trailer; f. Failing to bring the tractor-trailer he was operating to a stop prior to impacting the rear of BFL's trailer; g. Failing to have the tractor-trailer he was operating equipped with proper and adequate brakes and/or braking devices and in otherwise failing to have the tractor-trailer under a safe, proper, adequate and mechanical condition under the circumstances known to Cole; h. Failing to perform reasonable inspections of the tractor-trailer he was operating to ensure that it was equipped with proper and adequate brakes and/or braking devices and that the tractor-trailer was under a safe, proper, adequate and mechanical condition under circumstances known to Cole; and i. Violating the Federal Motor Carrier Safety Regulations, and the traffic laws of the Commonwealth of Pennsylvania pertaining to the operation of vehicles, in violation of 75 Pa. C. S. A. §§3361, 3362, 3714 and 3736, which constitutes negligence as a matter of law. 19. As a direct and proximate result of Cole's negligence, BFL sustained damages as more fully described herein. WHEREFORE, the Plaintiff, BFL, Inc., demands judgment against the Defendant, Eric Cole, Administrator for the Estate of Keith Cole, in the amount of $20,769.60 plus interest thereon from February 10, 2006. COUNT H - NEGLIGENCE BFL. Inc. v. Enterprise Transportation Co 20. The averments contained in paragraphs 1 through 19 of the Plaintiffs Complaint are incorporated herein by reference. 21. At all material times, Enterprise owned, controlled and operated the tractor-trailer driven by Cole at the time of the accident on February 10, 2006. 22. Enterprise was negligent in its entrustment of its vehicle to Cole when it knew, or should have known, that he was not a competent vehicle operator. 23. At all material times, Cole exhibited an appearance or conduct which should have caused Enterprise, acting by and through its actual or ostensible agents, to perceive that Cole was not a competent or safe vehicle operator. 24. As a direct and proximate result of Enterprise's negligence, BFL sustained damages as more fully described herein. WHEREFORE, the Plaintiff, BFL, Inc., demands judgment against the Defendant, Enterprise Transportation Co., in the amount of $20,769.60 plus interest thereon from February 10, 2006. COUNT/// - VICARIOUS LIABILITY BFL. Inc. v. Enterprise Transportation Co 25. The averments contained in paragraphs 1 through 24 of the Plaintiffs Complaint are incorporated herein by reference. 26. At all times relevant to the subject matter of this Complaint, Enterprise held out Cole, who was acting within the course and scope of his apparent authority, as its employee, agent, servant, or, in the alternative, was a contractor under a lease agreement with Enterprise. 27. Pursuant to the Interstate Common Carrier Act and Regulations promulgated by the Interstate Commerce Commission, Enterprise assumed full responsibility for the conduct of Cole on February 10, 2006. 28. As a direct and proximate result of the conduct of Enterprise, BFL sustained damages as more fully described herein. WHEREFORE, the Plaintiff, BFL, Inc., demands judgment against the Defendant, Enterprise Transportation Co., in the amount of $20,769.60 plus interest thereon from February 10, 2006. JOHN N, D ST ART & WEIDNER By: John A. Statler, re Attorney I.D. No. 43812 Wade D. Manley Attorney I.D. No. 87244 301 Market Street, P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :273940 - - E 06; L Dispatch VERIFICATION FAX NO. 2708880216 1, Micheal Arend, Director of Operations for BFL, Inc., hereby acknowledge that BFL, Inc. is the Plaintiff in this action and that I am authorized to make this verification on Its behalf; P. 02 that I have read the foregoing Complaint; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities. BFI., INC. By: Michael Arend, Director of Operations DATE: Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 ?i Attorneys for Defendants BFL, INC., Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2312 CIVIL ENTERPRISE TRANSPORTATION CIVIL ACTION - LAW CO., Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: BFL, INC., Plaintiff and JOHN A. STATLER, ESQUIRE, its attorney You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Dated: May 30, 2006 McNE?S WAVLACE & NURICK L BYE L-16,14-IX Delano M. Lang I.D. #21401 100 Pine Street, P.O. 166 Harrisburg, PA 17108-1166 (717) 237-5348 Attorneys for Defendants EXHIBIT "B" Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendants (717) 237-5348 BFL, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CIVIL ACTION - LAW CO., Defendants : JURY TRIAL DEMANDED ANSWER TO COMPLAINT WITH NEW MATTER AND NOW come Defendants, Eric Cole, Administrator of the Estate of Keith Cole, and Enterprise Transportation Company, by and through their attorneys, McNees Wallace & Nurick LLC, and answers the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. Enterprise Transportation Company is a registered trade name owned by EPCO, Inc., a Texas Corporation. 6. Admitted in part and denied in part. It is admitted that on February 10, 2006 Cole was operating a tractor-trailer unit owned by Enterprise that was transporting goods on Interstate 76/Pennsylvania Turnpike in the Commonwealth of Pennsylvania. The remaining averments of Paragraph 6 constitute conclusions of law which require no answer and are therefore denied. 7. Admitted. 8. Denied. As set forth more fully below, on February 10, 2006, BFL's tractor-trailer was being operated in an unlawful manner, had been illegally parked off of the eastbound side of Interstate 76/Pennsylvania Turnpike and violated the laws of the Commonwealth of Pennsylvania in attempting to move from the illegally parked position into the eastbound travel lane of Interstate 76 in violation of the motor vehicle laws of the Commonwealth of Pennsylvania as more fully set forth below. Said violations of law and the rules of the road were the direct, proximate cause of the collision. 9. Admitted. 10. Admitted. Cole was operating the Enterprise tractor-trailer in the course and scope of his employment with Enterprise. 11. Admitted in part and denied in part. Admitted that, at all material times, Cole was operating the tractor-trailer unit owned by Enterprise on Interstate -2- 76/Pennsylvania Turnpike in an eastbound direction. Denied that he was operating the tractor-trailer owned by Enterprise in as eastbound direction behind BFL's tractor-trailer. The averments of Paragraph 8 are incorporated herein by reference. Defendants deny that Rex Payton and the BFL unit were traveling eastbound in the right hand travel lane in front of Keith Cole and the Enterprise unit. Rex Payton, the operator of BFL's tractor- trailer suddenly and unexpectedly pulled into the right eastbound travel lane from an illegally parked position immediately in front of the Enterprise unit in violation of the laws of the Commonwealth of Pennsylvania as more fully set forth below. 12. Admitted in part and denied in part. The answer to Paragraph 11 is incorporated herein by reference. Admitted that Keith Cole was traveling eastbound in the right hand travel lane. When Rex Payton suddenly and unexpectedly pulled into the right eastbound travel lane immediately in front of him, Keith Cole partially moved into the left eastbound travel lane in an attempt to avoid the collision. Denied that the BFL unit was traveling in the right eastbound travel lane ahead of the Enterprise unit. 13. Denied. As set forth in Paragraphs 8, 11 and 12 above and as more fully set forth below, Cole operated the tractor-trailer owned by Enterprise in a reasonable and prudent manner within the right eastbound travel lane of the Pennsylvania Turnpike until the BFL tractor-trailer suddenly and unexpectedly pulled into the right eastbound travel lane from an illegally parked position immediately in front of Mr. Cole at which time Cole attempted to avoid a collision by attempting to move into the left eastbound travel lane. Despite Mr. Cole's efforts, the right front portion of his tractor struck the left -3- rear portion of the BFL trailer. The collision was caused by the negligence of Rex Payton, BFL's driver. 14. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 14. The averments are therefore denied and proof thereof demanded. COUNT I - NEGLIGENCE BFL Inc. v. Eric Cole Administrator for the Estate of Keith Cole 15. The averments contained the answers to Paragraphs 1 through 14 are incorporated herein by reference. 16. Admitted in part and denied in part. Admitted that Cole owed a duty to all persons lawfully using the highways to operate his vehicle in accordance with the laws of the Commonwealth of Pennsylvania. The paragraph otherwise states a conclusion of law which requires no answer and is therefore denied. 17. Denied. The answers to Paragraphs 8, 11, 12 and 13 are incorporated hereby by reference. At all times, Cole operated his vehicle in a non-negligent, careful manner in accordance with the laws of the Commonwealth of Pennsylvania. 18. Denied. The answers to Paragraphs 8, 11, 12 and 13 are incorporated herein by reference. Denied that Cole operated the tractor-trailer owned by Enterprise in a negligent, careless or reckless manner and, on the contrary, at all times Cole operated the tractor-trailer unit in a non-negligent, careful manner in accordance with the laws of the Commonwealth of Pennsylvania. The averments in subparagraphs (a) through (i) are denied and, as to said averments, Defendants further state as follows: -4- 0 a. Denied. Denied that Cole operated the tractor-trailer at an excessive speed for the conditions and, on the contrary, operated the unit at a reasonable and safe speed for the conditions; b. Denied. Defendant Cole kept alert and awake and maintained a proper and adequate lookout for other vehicles which were lawfully traveling in an easterly direction on Interstate 76/Pennsylvania Turnpike. Keith Cole took evasive action in an effort to avoid striking the right rear corner of Plaintiffs unit when Rex Payton suddenly and without warning entered into the right eastbound lane immediately in front of Keith Cole after pulling out from an illegally parked position along the right side of the eastbound travel lane of the Turnpike; C. Denied. At all times Keith Cole maintained his tractor-trailer unit under proper and adequate control. He took action to move to the left lane in order to try to avoid Plaintiffs unit when Rex Payton suddenly and unexpectedly pulled from being the parked position off the right side of the Turnpike into the right eastbound travel lane immediately in front of Mr. Cole in violation of the laws of the Commonwealth of Pennsylvania; d. Denied. Denied that Cole "caused or allowed" his tractor-trailer unit to impact the rear of BFL's trailer because of any negligence on his part. On the contrary, Cole, when confronted with the sudden -5- emergency created by Rex Payton's sudden and unexpected movement into the right eastbound travel lane from an illegally parked position, undertook efforts to avoid striking the right rear corner of the BFL trailer. Despite his efforts to avoid a collision, the right front portion of his unit collided with the left rear portion of BFL's trailer without any negligence on the part of Cole and solely as a result of the negligence of BFL and its operator; e. Denied. The answer to 18(d) is incorporated herein by reference; f. Denied. The answers to 18(a) through (e) are incorporated herein by reference; g. Denied. The tractor-trailer Cole was operating was equipped with proper and adequate brakes and braking devices and was otherwise in a safe, proper and adequate mechanical condition; h. Denied. Denied that Cole failed to perform reasonable inspections of the tractor-trailer he was operating and, on the contrary, reasonable inspections were performed to check that the vehicle was equipped with proper and adequate brakes and/or braking devices and that the tractor-trailer was in a safe, proper and adequate mechanical condition under the circumstances known to Cole and as in fact existed; and i. Denied. Denied that Cole operated the vehicle in violation of Federal Motor Carrier Safety Regulations or the laws of the -6- Commonwealth of Pennsylvania and, on the contrary, Cole operate his unit in a safe, proper and prudent manner in accordance with the laws of the Commonwealth of Pennsylvania and applicable Federal Motor Carrier Safety Regulations. In particular, he operated his vehicle at a safe speed that was reasonable and prudent under the conditions then existing and that permitted him to bring his vehicle to a stop within the assured clear distance ahead, he operated his unit within the appropriate speed limits, he operated his vehicle in a careful manner with due regard for the safety of persons or property, and he was not negligent in any manner whatsoever. 19. Denied. Denied that Cole was negligent in any manner whatsoever. With respect to BFL's alleged damages, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments with regard to such damages. The averments are therefore denied and proof thereof demanded. WHEREFORE, Defendant, Eric Cole, Administrator for the Estate of Keith Cole, hereby demands the entry of judgment in favor of the Estate and against Plaintiff, BFL, Inc. -7- COUNT II - NEGLIGENCE BFL, Inc. v. Enterprise Transportation Co 20. The averments set forth in the answers to Paragraphs 1 through 19 above are incorporated herein by reference. 21. Admitted. 22. Denied. The answers to Paragraphs 8, 11, 12, 13, 14, 16, 17, 18 and 19 are incorporated herein by reference. At all material times, Cole was a competent vehicle operator based on all information available to Enterprise at and prior to the time of the collision on February 10, 2006 and Enterprise was not negligent in any manner in entrusting the motor vehicle to Cole. 23. Denied. At all times, Cole exhibited the appearance and conduct consistent with Cole being a competent, safe operator of Enterprise's tractor-trailer. 24. Denied. Denied that Enterprise was in any way negligent with regard to entrusting the tractor-trailer unit to Cole. Further, as to the averments regarding BFL's damages, after reasonable investigation Enterprise is without knowledge or information sufficient to form a belief as to the truth of the averments and the averments are therefore denied and proof thereof demanded. WHEREFORE, Defendant, Enterprise Transportation Company, demands judgment in its favor and against Plaintiff, BFL, Inc. -8- COUNT III - VICARIOUS LIABILITY BFL, Inc. v. Enterprise Transportation Co 25. The averments set forth in the answers to Paragraphs 1 through 24 above are incorporated herein by reference. 26. Admitted that Cole was an employee acting within the course and scope of his employment at the time of the collision on February 10, 2006. 27. Denied. This paragraph states a legal conclusion which requires no answer. 28. Denied. The averments of Paragraphs 8, 11, 12, 13, 14, 16, 17, 18, 19, 22, 23 and 24 are incorporated herein by reference. For the reasons set forth above, denied that the conduct of Enterprise or its employee, Cole, was in any way negligent. With respect to BFL's alleged damages, after reasonable investigation, Enterprise is without sufficient knowledge or information to form a belief as to the truth of the averments and the averments are therefore denied and proof thereof demanded. WHEREFORE, Defendant, Enterprise Transportation Company, demands judgment in its favor and against Plaintiff, BFL, Inc. NEW MATTER 29. The averments set forth in the answers to Paragraphs 1 through 28 above are incorporated herein by reference. 30. At all times, Keith E. Cole operated the tractor-trailer unit owned by Enterprise Transportation Company in accordance with the laws of the Commonwealth of Pennsylvania and in a reasonable, prudent manner under the circumstances. -9- 31. The BFL tractor-trailer unit was operated by Rex M. Payton, 6948 Leah Lane, Owensboro, Kentucky 02303. At all relevant times, he was the agent and employee of BFL acting within the course and scope of his agency and employment. 32. Several hours prior to the collision that occurred on February 10, 2006 at approximately 1:25 a.m., Mr. Payton parked his tractor-trailer in a no parking area on the south side of the eastbound travel lanes of the Pennsylvania Turnpike where he remained parked for several hours. 33. Mr. Payton was parked in the area in violation of 75 Pa. C.S.A. §3353(a) (1)(x)(a)(2)(vii) and (viii), and (a)(3)(ii). 34. As Cole was approaching the area of the collision and lawfully traveling in the right eastbound travel lane, Mr. Payton began to pull out of the place where he had been illegally parked and intended to, at some point, enter the right eastbound travel lane on the Pennsylvania Turnpike. 35. As Cole was lawfully approaching the area of the collision and lawfully traveling within the right eastbound lane of travel on Interstate 76/Pennsylvania Turnpike, Mr. Payton, in violation of 75 Pa. C.S.A. §3334 attempted to enter into the traffic stream from a parked position when he was unable to make such entry with reasonable safety. Instead, Mr. Payton entered into the right eastbound lane of travel on the Turnpike immediately in front of Mr. Cole and pulled into the path of the Enterprise vehicle operated by Cole. 36. When confronted with the sudden emergency created by Rex Payton, Keith Cole attempted to move to the left eastbound lane in order to avoid a collision. -10- He succeeded in moving partially into the left eastbound travel lane. However, because of the negligence of Mr. Payton, he was not able to totally avoid the collision and the right front corner of his unit impacted on the left rear corner of the trailer of the BFL unit. 37. The collision was solely the result of the negligence of Rex Payton as discussed above and as set forth more fully in the counterclaim below, which is incorporated herein by reference. 38. Mr. Payton attempted to enter the roadway of the Pennsylvania Turnpike in violation of 75 Pa. C.S.A. §3324 which requires that the driver of a vehicle about to enter a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed. 39. Mr. Payton violated 75 Pa. C.S.A. §3312 in that he attempted to enter the limited access highway from an area other than entrances and exits as are established by public authority in violation of 75 Pa. C.S.A. §3312. Mr. Payton attempted to enter the limited access highway from a pull off area where parking was prohibited. 40. Mr. Payton operated his vehicle in careless disregard for the safety of persons or property by entering into the right eastbound travel lane of the Pennsylvania Turnpike when such movement could not be made without jeopardizing the safety of other users of the highway, including Keith Cole, in violation of 75 Pa. C.S.A. §3714(a) and (b). 41. Mr. Payton was guilty of reckless driving in that he operated his vehicle in willful and wanton disregard for the safety of persons or property in violation of 75 Pa. C.S.A. §3735. -11- 42. Mr. Payton negligently failed to realize and failed to keep track of the location of his vehicle relative to the travel lanes of the Pennsylvania Turnpike and allowed his vehicle to enter into the right eastbound travel lane immediately in front of Keith Cole. 43. Plaintiff is barred from any recovery due to the negligence of its driver, Rex Payton, or in the alternative, any recovery must be reduced pursuant to the comparative negligence law of the Commonwealth of Pennsylvania. WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed with prejudice. COUNTERCLAIM Enterprise Transportation Company v BFL Inc 44. The averments set forth in Paragraphs 1 through 43 above are incorporated herein by reference. 45. On February 10, 2006, Rex Payton was operating the BFL unit involved in the collision at issue in the course and scope of his employment or agency with Plaintiff and Plaintiff is responsible for the acts and omissions of Rex Payton in the operation of the BFL unit. 46. The February 10, 2006 collision was caused by the negligence, carelessness and recklessness of BFL, Inc.'s agent or employee, Rex M. Payton, who was at all material times acting within the course and scope of his employment and/or agency for which negligence and carelessness BFL, Inc. is legally liable. -12- 47. The negligence, carelessness and recklessness of Rex M. Payton include but are not limited to the following particulars: a. Pulling off of Interstate 76/Pennsylvania Turnpike and illegally parking in a no parking zone in violation of 75 Pa. C.S.A. §3353(a)(1)(x), (a)(2)(vii) and (viii) and (a)(2)(ii); b. Negligently failing to keep track of the position of his tractor-trailer unit relative to the travel lanes of the Pennsylvania Turnpike and carelessly and negligently operating his vehicle so that it entered the right eastbound travel lane immediately in front of Keith Cole who was lawfully traveling in the right eastbound lane of Interstate 76/Pennsylvania Turnpike and so close to Mr. Cole that he was unable to avoid a collision in violation of 75 Pa. C.S. §3334(ii); C. Entering onto the roadway from a parked position when he was unable to do so without creating an immediate hazard for on- coming vehicles lawfully traveling in the right eastbound travel lane of the Pennsylvania Turnpike in violation of 75 Pa. C.S. §3334; d. Failing to yield the right of way to all vehicles approaching on the roadway, including the Enterprise unit, as Mr. Payton was about to enter the roadway from his parked position in violation of 75 Pa. C.S.A. §3324; e. Operating his vehicle in carelessness disregard for the safety of persons or property resulting in the death of Keith Cole and severe -13- damage to Enterprise's property in violation of 75 Pa. C.S.A. §3714(a) and (b). 48. The negligence of BFL's employee and agent, Rex Payton, as set forth above caused the collision that occurred when Mr. Cole, despite his efforts, could not avoid a collision and the right front portion of his tractor struck the left rear corner of the BFL trailer. 49. As a result of the collision, Mr. Cole died from severe burn injuries. 50. As a result of the collision, the Enterprise tractor unit caught fire and was totally destroyed. The destroyed tractor was a 2004 International with VIN 3HSCNAPR14N022828, License Plate No. P496616, registered in the State of Illinois. The fair market value of the tractor was $75,588.76. 51. The Enterprise tractor was pulling a 1984 Heil tanker, VIN 1 HLF1 D7132E9E39019. As a result of the collision, the tanker suffered substantial damage requiring repairs before being placed back into service. The repairs have not yet been completed but the estimated cost of the repairs is at least $12,349. 52. As a result of the collision, Enterprise lost the use of the tractor until a suitable replacement unit could be purchased. Further, Enterprise lost the use of the Heil tanker until the repairs could be completed. The amounts of these damages are being calculated and claim is made for such loss of use. 53. In addition, Enterprise incurred other incidental costs including storage, towing charges and debris removal. These damages are being calculated and claim is made for such costs. -14- n 54. Enterprise's total property damages as a result of the collision are $87,937.76, plus damages for loss of use and other incidental damages that are being calculated. WHEREFORE, Enterprise Transportation Company demands judgment in its favor and against Plaintiff, BFL, Inc., in an amount in excess of the limits requiring compulsory arbitration, together with delay damages and costs of suit. McNEFS Vy"AXLACE & NURWK LLC By Delano M. Lard e--- I. D. #21401 Curtis N. Stambaugh I . D. #80565 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 Attorneys for Defendants Dated: May 30, 2006 -15- r 0 VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am the Director of Safety of Enterprise Transportation Company and am authorized to verify the foregoing Answer and Counterclaim on its behalf. I further certify that I have read the foregoing Answer and Counterclaim and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. Nola Everitt Dated: May 11- , 2006 r CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid upon the following: John A. Statler, Esquire Johnson, Duffle, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA /T'7?43-0109 Delano M. La Dated: May 30, 2006 VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am the Director of Safety of Enterprise Transportation Company and am authorized to verify the foregoing Complaint Against Additional Defendant on its behalf. I further certify that I have read the foregoing Complaint Against Additional Defendant and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. Nolan Everitt Dated: June ?tc , 2006 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid upon the following: John A. Statler, Esquire Johnson, Duffle, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 a Kimberly K. Selemba Dated: June 26, 2006 Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com BFL, INC. V. Plaintiff Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants NO. 06-2312 CIVIL TERM JURY TRIAL DEMANDED REPLY OF PLAINTIFF BFL, INC. TO DEFENDANTS' NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, BFL, Inc., by its attorneys, Johnson, Duffie, Stewart & Weidner, P.C. who file the following Reply to the Defendants' New Matter and Counterclaim: REPLY TO NEW MATTER 29. Plaintiff incorporates by reference the averments set forth in paragraphs 1 through 28 of its Complaint as if set forth at length. 30. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is specifically denied that Keith Cole operated the tractor trailer unit owned by Enterprise Transportation Company in accordance with the law of the Commonwealth of Pennsylvania. It is further denied that Mr. Cole operated the tractor trailer unit in a reasonable, prudent manner under the circumstances. 31. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is admitted that Mr. Payton was operating the BFL tractor trailer unit in the course and scope of his employment with BFL. 32. It is admitted that for a period of time prior to the subject accident, Mr. Payton stopped his tractor trailer in an improved shoulder area on the south side of the eastbound travel lanes of the Pennsylvania Turnpike. 33. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, the averments in this paragraph are denied. 34. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. Cole was lawfully traveling in the right eastbound travel lane approaching the area of the collision. It is admitted that Mr. Payton lawfully pulled out onto the travel portion of the Pennsylvania Turnpike and was lawfully occupying the right eastbound lane of travel when his trailer was impacted by the tractor trailer unit operated by Keith Cole. 35. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. Cole was lawfully approaching the area of the collision and denied that he was lawfully traveling within the right eastbound lane of travel on the Pennsylvania Turnpike. By way of further answer, it is denied that Mr. Payton violated Section 3334 of the Pennsylvania Motor Vehicle Code and denied that he attempted to enter into the traffic stream from a parked position when he was unable to make such entry with reasonable safety. It is admitted that Mr. Payton lawfully entered into the right eastbound lane of travel on the Turnpike and was lawfully occupying that lane when his trailer was struck from behind by the tractor operated by Mr. Cole. By way of further answer, it is denied that Mr. Payton entered the right eastbound lane of travel of the Turnpike immediately in front of Mr. Cole and denied that Mr. Payton pulled into the path of the Enterprise vehicle operated by Cole. 36. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Rex Payton created a sudden emergency for Keith Cole. Rather, if a sudden emergency existed under the circumstances, it was created by the acts or omissions of Keith Cole. By way of further answer, it is denied that Mr. Payton was negligent and denied that Mr. Cole was required to take any evasive action as a result of any negligence of Mr. Payton. It is admitted that the tractor operated by Mr. Cole impacted on the left rear corner of the trailer of the BFL unit. 37. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is specifically denied that Rex Payton was negligent and denied that the collision was solely the result of any negligence of Mr. Payton. By way of further answer, Plaintiff incorporates by reference its Reply to the Defendants' Counterclaim as if set forth at length. 38. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. Payton attempted to enter the roadway of the Pennsylvania Turnpike in violation of §3324 of the Pennsylvania Motor Vehicle Code which requires that the driver of a vehicle about to enter a roadway from any place other than another roadway shall yield the right-of-way- to all vehicles approaching on the roadway to be entered or crossed. 39. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. Payton violated §3312 of the Pennsylvania Motor Vehicle Code and denied that he attempted to enter the limited access highway from an area other than entrances and exits as are established by public authority in violation of the statute. It is further denied that Mr. Payton attempted to enter the Pennsylvania Turnpike from a prohibited pull off area. 40. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. Payton operated his vehicle in careless disregard for the safety of persons or property by entering into the right eastbound travel lane of the Pennsylvania Turnpike when such movement could not be made without jeopardizing the safety of other users of the highway, including Keith Cole. By way of further answer, it is denied that Mr. Payton violated §3714(a) and (b) of the Pennsylvania Motor Vehicle Code. 41. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. 4 Payton was guilty of reckless driving and denied that he operated his vehicle in willful and wanton disregard for the safety of persons or property in violation of §3735 of the Pennsylvania Motor Vehicle Code. 42. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Mr. Payton was negligent and denied that he negligently failed to realize and failed to keep track of the location of his vehicle relative to the travel lanes of the Pennsylvania Turnpike and denied that he allowed his vehicle to enter into the right eastbound lane of travel immediately in front of Keith Cole. 43. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Rex Payton was negligent and, therefore, denied that the Plaintiff is barred from any recovery or that any recovery must be reduced pursuant to the comparative negligence law due to the negligence of Rex Payton. WHEREFORE, Plaintiff BFL, Inc. respectfully requests that the Defendants' New Matter be dismissed and that judgment be entered in favor of the Plaintiff and against the Defendants in this case. 5 REPLY TO COUNTERCLAIM EPCO. Inc. v. BFL. Inc. 44. Plaintiff incorporates by reference the averments set forth in paragraphs 1 through 28 of its Complaint as well as the averments set forth in paragraphs 29 through 43 of the Reply to Defendants' New Matter as is set forth at length. 45. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is admitted that Rex Payton was operating the BFL unit in the course and scope of his employment. 46. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Rex Payton was negligent, careless and reckless and, therefore denied that the February 10, 2006 collision was caused by the negligence, carelessness and recklessness of BFL, Inc. agent or employee, Rex Payton. The balance of the averments are denied as conclusions of law. 47. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Rex Payton was negligent, careless and reckless and denied that the negligence, carelessness and recklessness of Rex Payton consisted of the following: a. Pulling off of Interstate 76/Pennsylvania Turnpike and illegally parking in a no parking zone in violation of §3353(a)(1)(x), (a) (2)(vii) and (viii) and (a)(2)(ii); 6 b. Negligently failing to keep track of his tractor trailer unit relative to the travel lanes of the Pennsylvania Turnpike and carelessly and negligently operating his vehicle so that it entered the right eastbound lane of travel immediately in front of Keith Cole. By way of further answer, it is denied that Mr. Cole was lawfully traveling in the right eastbound lane of Interstate 76/Pennysylvania Turnpike. It is further denied that Mr. Payton violated §3334(ii) of the Pennsylvania Motor Vehicle Code; C. Entering onto the roadway from a parked position when he was unable to do so without creating an immediate hazard for oncoming vehicles lawfully traveling in the right eastbound travel lane of the Pennsylvania Turnpike in violation of §3334 of the Pennsylvania Motor Vehicle Code; d. Failing to yield the right-of-way to all vehicles approaching on the roadway, including the EPCO unit, as Mr. Payton was about to enter the roadway from his parked position in violation of §3324 of the Pennsylvania Motor Vehicle Code; e. Operating his vehicle in careless disregard for the safety of persons or property resulting in the death of Keith Cole and severe damage to EPCO's property in violation of §3714(a) and (b) of the Pennsylvania Motor Vehicle Code. 48. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that BFL's employee and agent, Rex Payton was negligent and denied that any negligence of Mr. Payton 7 caused the collision that occurred when the tractor operated by Mr. Cole struck the left rear corner of the BFL trailer. 49. It is admitted that Mr. Cole died from injuries sustained in the subject collision. Bay way of further answer, Plaintiff is without information sufficient to form a belief as to the truth or falsity of the averments concerning the exact cause of Mr. Cole's death and, therefore, denies the same and demands strict proof at time of trial if deemed material. 50. It is admitted that the EPCO tractor unit caught fire as a result of the collision and sustained damages. By way of further answer, Plaintiff is without information sufficient to form a belief as to the truth or falsity of the remaining averments concerning the specifications of the tractor and its fair market value and, therefore, denies the same and demands strict proof at time of trial if deemed material. 51. It is admitted that the tanker attached to the tractor operated by Keith Cole sustained damages as a result of this collision. By way of further answer, after reasonable investigation, Plaintiff is with information sufficient to form a belief as to the truth or falsity of the averments concerning the specifications of the tanker and/or the cost of repairs and, therefore, deny the same and demand strict proof at time of trial if deemed material. 52. Denied, after reasonable investigation, Plaintiff is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. By way of further answer, 8 Plaintiff asserts that Defendant EPCO had a duty to mitigate its damages by either utilizing a spare replacement unit or renting a temporary unit until a replacement unit could be purchased. 53. Denied. After reasonable investigation, Plaintiff is without information sufficient to form a belief as to the truth or falsity of the averments concerning EPCO's incidental costs including storage, towing charges and debris removal and, therefore, denies the same and demands strict proof at time of trial if deemed material. 54. Denied, after reasonable investigation, Plaintiff is without information sufficient to form a belief as to the truth or falsity of the averments concerning the amount of EPCO's total property damages plus damages for loss of use and other incidental damages and, therefore, denies the same and demands strict proof at time of trial if deemed material. WHEREFORE, Plaintiff BFL, Inc. respectfully requests that the Counterclaim asserted by Defendant EPCO, Inc. be dismissed and that judgment be entered in favor of Plaintiff BFL, Inc. and against the Defendants in this case. By: DATE: f I I Q L 277921 14362-1 DUFFIE, STEWART & WEIDNER John A. StatW, E$quire Attorney I.D. No. 3812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff BFL, Inc. 9 JUL-1'_=2006 TUE 09:10 AM BFL Dispatch FAX NO. 2706880216 P. 01/01 VERIFICATION I, MICHAEL AREND, hereby acknowledge that BFL, Inc. is the Plaintiff in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing Reply to Defendants' New Matter and Reply to Defendants' Counterclaim; and that the facts stated therein are true and correct to the best of my knowledge, information and belief, I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. BFL, INC. By: MICHAEL AREND Director of Operations DATE: 7 //' /6)& CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Reply of Plaintiff BFL, Inc. to Defendants' New Matter and Counterclaim upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the LjUday of 2006, addressed to the following: Delano M. Lantz Esquire Curtis N. Stambaugh, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 DUFFIE, STEWART & WEIDNER Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff ?" - i„ ? ?. i ?-. _? BFL, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants V. REX M. PAYTON, Additional Defendant NO. 06-2312 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Additional Defendant, Rex M. Payment, and certify that I am authorized to do so. JOHNSON, DUFFIE, STEWART & WEIDNER By John A. Statler, I. D. No 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Additional Defendant Dated: 7/1Z 104 z: , ., , - i ?' -?, '.; ??-? _?- ;? ;; ? >?; ; - . ? Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jasQdsw.com BFL, INC. Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants V. REX M. PAYTON, Additional Defendant TO: EPCO, INC., Defendant c/o Delano M. Lantz, Esquire McNees Wallace & Nurick LLC 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Plaintiff and Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-2312 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD YOU ARE REQUIRED to plead to the within Answer With New Matter within 20 days of service hereof or a default judgment may be entered against you. J DUFFIE, STE ART & WEIDNER By: John A. Statler, e Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 DATE: 7/2 Le ?d G Attorneys for Plaintiff and Additional Defendant Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com Attorneys for Plaintiff and Additional Defendant BFL, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants V. REX M. PAYTON, Additional Defendant CIVIL ACTION - LAW NO. 06-2312 CIVIL TERM JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF ADDITIONAL DEFENDANT TO THE JOINDER COMPLAINT OF DEFENDANT. EPCO. INC. AND NOW, comes the Additional Defendant, Rex M. Payton, by and through his counsel, Johnson, Duffle, Stewart & Weidner, P.C., and files the following Answer with New Matter to the Joinder Complaint of Defendant, EPCO, Inc.: 1. Admitted. 2. Admitted. 3. Denied. The averments contained in the Answer with New Matter and Counterclaim are specifically denied to the extent they have bearing on the Joinder Complaint of the Defendant, EPCO, Inc. Additionally, the Additional Defendant, Rex M. Payton, incorporates by reference herein the averments contained in the Complaint filed by BFL, Inc. 4. Denied. After reasonable investigation, the Additional Defendant is without knowledge or information sufficient to form a belief as the truth or falsity of the averments contained in this paragraph, and therefore the averments are denied and strict proof therefore is demanded at the time of trial. 5. Admitted in part; Denied in part. It is admitted that the Defendant, Rex M. Payton, is an adult individual. The remaining averments are specifically denied and strict proof therefore is demanded at the time of trial. By way of further answer, the Defendant, Rex M. Payton, currently resides at 1530 Wrights Landing Road, Owensboro, Kentucky 42303. 6. Admitted. 7. Admitted. 8. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the facts and legal conclusions averred in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is admitted that, prior to the collision that occurred on February 10, 2006 at approximately 1:25 a.m., the Additional Defendant stopped his tractor trailer on the south side of the eastbound travel lane of the Pennsylvania Turnpike. 9. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 10. Admitted. 2 11. Admitted. 12. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is specifically denied that Keith Cole approached the area of the collision lawfully and it is specifically denied that Additional Defendant suddenly and unexpectedly pulled into the right eastbound travel lane immediately in front of Keith Cole, and strict proof thereof is demanded at the time of trial. Additionally, it is specifically denied that Additional Defendant pulled into the right eastbound travel lane from an illegally parked position and into the path of Mr. Cole and the EPCO vehicle operated by Mr. Cole, and strict proof thereof is demanded at the time of trial. It is admitted that Mr. Payton lawfully pulled out onto the travel portion of the Pennsylvania Turnpike and was lawfully occupying the right eastbound lane of travel when his trailer was impacted by the tractor trailer unit operated by Keith Cole. 13. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is denied that Rex Payton created a sudden emergency for Keith Cole. Rather, if a sudden emergency existed under the circumstances, it was created by the acts or omissions of Keith Cole. By way of further answer, it is denied that Mr. Payton was negligent and denied that Mr. Cole was required to take any evasive action as a result of any negligence of Mr. Payton. 14. Admitted in part; Denied in part. It is admitted that Keith Cole was unable to avoid causing the tractor trailer he was operating to collide with the tractor trailer being operated by the Additional Defendant. After reasonable investigation, the Additional Defendant is without 3 knowledge or information sufficient to form a belief as to the truth or falsity of whether Keith Cole succeeded in moving partially into the left eastbound travel lane, and therefore those averments are denied and strict proof thereof is demanded at the time of trial. 15. Admitted. 16. Admitted in part; Denied in part. It is admitted that, as a result of the collision, the EPCO tractor unit caught fire and was totally destroyed. After reasonable investigation, the Additional Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in this paragraph, and therefore the remaining averments are denied and strict proof thereof is demanded at the time of trial. 17. Admitted in part; Denied in part. It is admitted that as a result of the collision the tanker attached to the EPCO tractor unit suffered damage. After reasonable investigation, the Additional Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in this paragraph, and therefore the remaining averments are denied and strict proof thereof is demanded at the time of trial. 18. Denied. After reasonable investigation, the Additional Defendant is without knowledge or information sufficient to form a belief as the truth or falsity of the averments contained in this paragraph, and therefore the averments are denied and strict proof therefore is demanded at the time of trial. 19. Denied. After reasonable investigation, the Additional Defendant is without knowledge or information sufficient to form a belief as the truth or falsity of the averments contained in this paragraph, and therefore the averments are denied and strict proof therefore is demanded at the time of trial. 20. Denied. After reasonable investigation, the Additional Defendant is without knowledge or information sufficient to form a belief as the truth or falsity of the averments 4 contained in this paragraph, and therefore the averments are denied and strict proof therefore is demanded at the time of trial. 21. Admitted. 22. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is denied that the Additional Defendant violated Section 3334 of the Pennsylvania Motor Vehicle Code and denied that he attempted to enter into the traffic stream from a parked position when he was unable to make such entry with reasonable safety. It is admitted that the Additional Defendant lawfully entered into the right eastbound lane of travel on the Turnpike and was lawfully occupying that lane when his trailer was struck from behind by the tractor operated by Mr. Cole. 23. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is denied that the Additional Defendant attempted to enter the roadway of the Pennsylvania Turnpike in violation of §3324 of the Pennsylvania Motor Vehicle Code which requires that the driver of a vehicle about to enter a roadway from any place other than another roadway shall yield the right-of-way- to all vehicles approaching on the roadway to be entered or crossed. 24. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is denied that the Additional Defendant violated §3312 5 of the Pennsylvania Motor Vehicle Code and denied that he attempted to enter the limited access highway from an area other than entrances and exits as are established by public authority in violation of the statute. 25. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is denied that the Additional Defendant operated his vehicle in careless disregard for the safety of persons or property by entering into the right eastbound travel lane of the Pennsylvania Turnpike when such movement could not be made without jeopardizing the safety of other users of the highway, including Keith Cole. By way of further answer, it is denied that the Additional Defendant violated §3714(a) and (b) of the Pennsylvania Motor Vehicle Code. 26. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. By way of further answer, it is denied that the Additional Defendant was guilty of reckless driving and denied that he operated his vehicle in willful and wanton disregard for the safety of persons or property in violation of §3735 of the Pennsylvania Motor Vehicle Code. COUNTI (Negligence) EPCO. Inc. v. Rex M. Payton 27. Additional Defendant incorporates by reference Paragraphs 1 through 26 of their Answer to Defendant's Joinder Complaint as if fully set forth herein. 6 28. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 29. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 30. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 31. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 32. Admitted in part; Denied in part. It is admitted that Keith Cole died from burn injuries. The remaining averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 33. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 7 34, Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 35. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 36. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 37. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Additional Defendant, Rex M. Payton, respectfully requests that judgment be entered in his favor and that the Plaintiffs Complaint be dismissed with prejudice. NEW MATTER By way of additional answer and reply, Additional Defendant raises the following new matters: 38. Some or all of the Defendant, EPCO, Inc.'s, claims are barred by the applicable statute of limitations. 8 39. Some or all of the Defendant, EPCO, Inc.'s claims are barred in whole or in part and/or are limited by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (75 Pa.C.S.A. §1701, et. seq.), and especially by §1722 of that law. 40. Discovery may reveal that the Defendant, EPCO, Inc. has failed to mitigate their damages. 41. Discovery may reveal that some or all of the Defendant, EPCO, Inc.'s alleged injuries, conditions, or damages pre-existed the date of the subject accident and were not caused or aggravated by this accident. 42. Discovery may reveal that some or all of the Defendant, EPCO, Inc.'s injuries, conditions or damages were caused by the events that occurred subsequent to the subject accident. 43. To the extent that the Defendant, EPCO, Inc. has been or will be paid for some or all of their damages, then the claims for those damages are barred both by §1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law and by the defense of payment generally. 44. The Defendant, EPCO, Inc. has failed to state a cause of action upon which any relief of any kind can be granted. 45. The Defendant, EPCO, Inc.'s causes of action alleged are barred in whole or in part by the doctrines of comparative negligence and/or contributory negligence, as may be applied to the facts disclosed in discovery. 46. The mechanism in Defendant, EPCO, Inc.'s alleged injuries was under the care, custody and control of persons or entities other than the Answering Defendants. 9 47. The mechanism in Defendant, EPCO, Inc.'s alleged injuries was under the care, custody and control of persons or entities other than the Answering Defendants, such persons including but not limited to the Defendant, EPCO, Inc. 48. The Defendant, EPCO, Inc.'s causes of actions alleged damages claimed by the Defendant, EPCO, Inc. that were created and/or caused by individuals under circumstances over whom the Answering Defendants had no control or right to control. 49. Sudden and unexpected conditions at the time of the accident created a sudden emergency for drivers on the roadway, including the Additional Defendant, Rex M. Payton. WHEREFORE, the Additional Defendant respectfully requests that the Defendant, EPCO, Inc.'s Joinder Complaint be dismissed with prejudice and that judgment be entered in favor of the Additional Defendant. Respectfully submitted, J?DUFFIE, ST WART & WEIDNER By. John A. Statler, ' e I. D. No 43812 Wade D. Manley, Esquire I. D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Plaintiff and Additional Defendant DATE: 7/Z4/o6 :279105 14362-1 10 VERIFICATION 1, REX M. PAYTON, hereby acknowledge that I am the Additional Defendant in this action; that I have read the foregoing Answer With New Matter of Additional Defendant To Joinder Complaint of Defendant Epco, Inc.; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. By: (ie) m RE M. PAYTON DATE: CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Answer With New Matter of Additional Defendant to the Joinder Complaint of Defendant, EPCO, Inc. upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the day of U 2006, addressed to the following: Delano M. Lantz Esquire Curtis N. Stambaugh, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 DUFFIE, STEWART & WEIDNER Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff and Additional Defendant rvP `:i -t Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 Kimberly A. Selemba I.D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street , P. 0. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendants BFL, INC., Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants REX M. PAYTON, Additional defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2312 CIVIL CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA TO PRODUCE DOCUMENTS/THINGS PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant hereby certifies that: (1) A Notice of Intent to serve the subpoena, with a copy of the subpoena attached thereto, was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is to be served; (2) A copy of the Notice of Intent to Serve Subpoena (to PA State Police) is attached to this Certificate; (3) Counsel for Plaintiff and additional defendant has waived the twenty-day waiting period. A copy of the signed Waiver is attached hereto. McNEES WALLACE & NURICK LLC By Imb a. a _ Dela o M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 Kimberly A. Selemba I.D. No. 93535 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 Dated: September 1q, 2006 Attorneys for Defendant -2- Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street , P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendants BFL, INC., IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED V. REX M. PAYTON, Additional defendant NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: BFL, Inc., Plaintiff and Rex M. Payton, Additional Defendant and their attorney, John Statler, Esquire PLEASE TAKE NOTICE that defendants intend to serve a subpoena identical to the one attached to this Notice. You have twenty days (20) days from the date listed below in which to file of record and serve up the undersigned any objection to the subpoena. If no objection is made, subpoena may be served. McN S LACE & R K LLC By Dated: September 11, 2006 Delano M. LaM I. D. #21401 Curtis N. Stambaugh I.D. #80565 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5348 Attorneys for Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BFL, INC. Plaintiff File No.06-2312-Civil VS. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CO. VS. Defendants Rex Payton SUBPOENA TO PRODUCE DOCUMENTS OR THINGS A . De f t. FOR DISCOVERY PURSUANT TO RULE 4009.22 Colonel Jeffrey B. Miller, Commissioner TO: Pennsylvania State Police, 1800 Elmerton Ave, Harrisburg, PA (Name of Person or Entity) Within twenty (20) days alter service of this subpoena, you are ordered by the court to produce the following documents or things: SEE EXHIBIT "A" to SUBPOENA TO PRODUCE DOCUMENTS/THINGS ATTACHED HERETO *at McNees Wallace & Nurick (Attn: Delano Lantz, Esq.), 100 Pine St. P.O. 'Box 1166, Harr i sburg, (Address) PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Delano M. Lantz, Esquire ADDRESS: McNees Wallace & brick LLC 100 Pine Street, P.O. Box 1166 TELEPHONE: 17) 237-5348 SUPREME COURT ID # 214 01 ATTORNEY FOR: ?P f P an fi BY COURT: Prothonotary, Civil Di C Date. 'Sea) of e Co Deputy EXHIBIT "A" TO SUBPOENA TO COLONEL JEFFREY MILLER, COMMISSIONER, PENNSYLVANIA STATE POLICE You are required to produce the following documents and/or things: Any and all documents and/or things relating to Incident No. T05-5020069, including, but not limited to, any accident reconstruction reports, complete incident reports and/or crash reports, supplemental reports, diagrams, any witness statements, any photographs and/or videotapes relating to a motor vehicle accident that occurred on February 10, 2006 on the Pennsylvania Turnpike, eastbound at milepost 214. 1, in Upper Frankford Township, Cumberland County. The individuals/companies involved in the accident were Keith Cole, deceased, Rex Payton, BFL, Inc. and Enterprise Transportation Company. BFL, Inc. vs. Eric Cole, Admin. of Estate of Keith Cole and Enterprise Transportation Co. vs. Rex Payton - Cumberland County, C.C.P. No. 06-2312 - Civil CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid upon the following: John A. Statler, Esquire Johnson, Duffie, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 a ath ocum Paralegal Dated: September 11, 2006 Delano M. Lantz I.D. No. 21401 Curtis N. Stambaugh I.D. No. 80565 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendants BFL, INC., : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2312 CIVIL ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED V. REX M. PAYTON, Additional defendant WAIVER OF TWENTY DAY WAITING PERIOD I hereby acknowledge that I have received Defendants' Notice of Intent to Serve Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 in the above-captioned matter (subpoena directed to PA State Police), that I hereby waiver the twenty-day waiting period required by the above-referenced Rule; that I permit counsel wanting to serve the subpoena to serve the subpoena immediately. Dated: ! //2 / d G 7<Z,_ - Counsel for BFL, and Rex M. Payton CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid upon the following: John A. Statler, Esquire Johnson, Duffle, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 UN IJA?A Kimberl . Selemba Dated: September 14, 2006 [? { ??t ? ?" T? 1- :? ( .?... . I , 1 Johnson, Duffie, Stewart & Weidner By: Kelly L. Bonanno, Esquire I.D. No. 200811 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 klb@jdsw.com BFL, INC. V. Plaintiff ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CO. Defendant V. REX M. PAYTON, Defendant for Plaintiff and Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-2312 CIVIL TERM JURY TRIAL DE CERTIFICATE PREREQUISITE TO SERVICE As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant hereby certifies that: 1) A Notice of Intent to serve the subpoenas, with a thereto, was mailed or delivered to each party at which the subpoenas were sought to be served; 2) A copy of the Notice of Intent, including the props this certificate; of the subpoenas attached 20 days prior to the date on subpoenas, are attached to 3) No objection to the subpoenas has been received and 4) The subpoenas to be served are identical to the s bpoi of Intent. By: as attached to the Notice DATE: jk ?U 285351 nervy L{Jaon nno, tsgpire Attorney I. D. No. 200811 301 Market S treet P.O. Box 109 Lemoyne, P 17043-0109 Telephone (7 7) 761-4540 Attorneys for ?Iaintiff and Additional Defendant 4 Johnson, Duffle, Stewart & Weidner By: Kelly L. Bonanno, Esquire I.D. No. 200811 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 klb@jdsw.com BFL, INC. V. Plaintiff ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CO. Defendant V. REX M. PAYTON, IN THE COURT CUMBERLAND CIVIL ACTION - for Plaintiff and Additional Defendant COMMON PLEAS JNTY, PENNSYLVANIA W NO. 06-2312 CIVIL TERM Defendant : JURY TRIAL DE ANDED NOTICE OF INTENT TO SERVE SUBP ENAS TO PRODUCE DOCUMENTS AND THINGS FOR TO: EPCO, INC., DEFENDANT c/o Delano M. Lantz, Esquire McNees Wallace & Nurick, LLC 100 Pine Street; P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendant Eric Cole, Administrator for the Estate of Keith Cole and Enterprise Transportation PLEASE TAKE NOTICE that Plaintiff BFL, Inc., and Defendant Rex M. Payton intend to serve subpoenas identical to the ones attached to this notice. Y u have 20 days from the date listed below in which to file on record and serve upon the undersi ned an objection to the subpoenas. If no objection is made, the subpoenas may be served. JOHNSON, DUFFIE? STEWART & WEIDNER By: L DATE: al 'u' 'm%' no, tsquire AttorneM.D. o. 200811 301 Market S treet P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (7- 17) 761-4540 Attorneys for Plaintiff and Additional Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BFL, INC. V. Plaintiff ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CO. Defendant V. REX M. PAYTON, TO: Defendant : CIVIL ACTION - LA NO. 06-2312 CIVIL JURY TRIAL DEMANDED (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of any and all medical records, medical reports, office notes, and/or correspondence related to any and all drug, alcohol and/or toxicology testing pertaining to any evaluation, care or treatment rendered to Keith Cole; Date of Birth: 10-04-1949; Social Security Number 235-76-8791. at Kellv T.- Rnnannn JP--;- T-L___- -- (Address) You may deliver or mail legible copies of the documents or produce things requ certificate of compliance, to the party making this request at the address listed at vane, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within party serving this subpoena may seek a court order compelling you to comply wi THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING NAME: TCPIIv T ? ' - -- ADDRESS: TELEPHONE: by this subpoena, together with the You have the right to seek, in ad 'nty (20) days after its service, the it. SUPREME COURT ID # 200811 ATTORNEY FOR: Plaintiff and Additional Defendants By the DATE: Seal of the Court Frothonotary 285355 1 Deputy .r "J. .. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct co y of the foregoing Notice of Intent to Serve Subpoena to Produce Documents and Things F r Discovery Pursuant to Rule 4009.21 and Subpoena upon all parties or counsel of record byl,depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 3'Qay of Q C'7z?c, 2006, addressed to the following: Delano M. Lantz, Esquire McNees Wallace & Nurick, LLC 100 Pine Street; P. 0. Box 1166 Harrisburg, PA 17108-1166 JOHNSON, DUFFIE, STEWART & WEIDNER By: Kelry L. E;6jar n , E Attorney(.. No. 2C 301 Market Street P.O. Box 109 Lemoyne, PA 1704 Telephone (717) 76 Attorneys for Plainti- 11 -0109 -4540 and Additional Defendant 285378 t C'? ' L...,. C-- t7 I' rl I C.!'1 rT. - - N xy Johnson, Duffie, Stewart & Weidner By: Kelly A. Bonanno, Esquire I.D. No. 200811 301 Market Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 klb@jdsw.com BFL, Inc., Plaintiff V. ERIC COLE, Administrator for the Estate of KEITH COLE and ENTERPRISE TRANSPORTATION CO., Defendant V. REX M. PAYTON, Defendant Attorneys for Plaintiff and Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-2312 CIVIL TERM Jury Trial Demanded CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of Subpoena for documents and things pursuant to Rule 4009.22, Plaintiff and Defendant hereby certifies that: 1) A Notice of Intent to serve the Subpoena, with a copy of the Subpoena attached thereto, was mailed or delivered to each party at least 20 days prior to the date on which the Subpoena were sought to be served; 2) A copy of the Notice of Intent, including the proposed Subpoena, are attached to this certificate; 3) No objection to the subpoenas has been received; and 4) The Subpoena to be served are identical to the Subpoena attached to the Notice of Intent. JOHNSON, DUFFIE, STEWART & WEIDNER By: Key A. anno, Esquire I.D. No. 811 301 Market Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 DATE: 1115107 Attorneys for Plaintiff and Additional Defendant Johnson, Duffle, Stewart & Weidner By: Kelly A. Bonanno, Esquire I.D. No. 200811 301 Market Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 klb@jdsw.com Attorneys for Plaintiff and Additional Defendant BFL, Inc., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ERIC COLE, Administrator for the Estate of KEITH COLE and ENTERPRISE TRANSPORTATION CO., Defendant V. REX M. PAYTON, Defendant No. 06-2312 CIVIL TERM Jury Trial Demanded NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: EPCO, INC., Defendant c/o Delano M. Lantz, Esquire McNees Wallace & Nurick, LLC 100 Pine Street; P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant Eric Cole, Administrator of the Estate of Keith Cole and Enterprise Transportation Co. PLEASE TAKE NOTICE that Plaintiff BFL, Inc., and Defendant Rex M. Payton intend to serve a Subpoena identical to the one attached to this notice. You have 20 days from the date listed below in which to file on record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. JOHNSON, DUFFIE, STEWART & WEIDNER By: Kelly A nno, Esquire I.D. No. 0811 301 Market Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 DATE: 1 f/v? Attorneys for Plaintiff and Additional Defendant rla Johnson, Duffie, Stewart & Weidner By: Kelly A. Bonanno, Esquire I.D. No. 200811 301 Market Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 kib@jdsw.com Attorneys for Plaintiff and Additional Defendant BFL, Inc., V. Plaintiff ERIC COLE, Administrator for the Estate of KEITH COLE and ENTERPRISE TRANSPORTATION CO., Defendant V. REX M. PAYTON, Defendant Jury Trial Demanded CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of Subpoena for documents and things pursuant to Rule 4009.22, Plaintiff and Defendant hereby certifies that: 1) A Notice of Intent to serve the Subpoena, with a copy of the Subpoena attached thereto, was mailed or delivered to each party at least 20 days prior to the date on which the Subpoena were sought to be served; 2) A copy of the Notice of Intent, including the proposed Subpoena, are attached to this certificate; 3) No objection to the subpoenas has been received; and 4) The Subpoena to be served are identical to the Subpoena attached to the Notice of Intent. JOHNSON, DUFFIE, STEWART & WEIDNER DATE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-2312 CIVIL TERM By: Kelly A. Jonarrho, Esquire I.D. o. 00811 301 et Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff and Additional Defendant F 1 Johnson, Duffie, Stewart & Weidner By: Kelly A. Bonanno, Esquire I.D. No. 200811 301 Market Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 klb@jdsw.com BFL, Inc., V. Plaintiff ERIC COLE, Administrator for the Estate of KEITH COLE and ENTERPRISE TRANSPORTATION CO., Defendant V. REX M. PAYTON, Defendant Attorneys for Plaintiff and Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-2312 CIVIL TERM Jury Trial Demanded NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: EPCO, INC., Defendant c/o Delano M. Lantz, Esquire McNees Wallace & Nurick, LLC 100 Pine Street; P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant Eric Cole, Administrator of the Estate of Keith Cole and Enterprise Transportation Co. PLEASE TAKE NOTICE that Plaintiff BFL, Inc., and Defendant Rex M. Payton intend to serve a Subpoena identical to the one attached to this notice. You have 20 days from the date listed below in which to file on record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. JOHNSON, DUFFLE, STEWART & WEIDNER DATE: ?'/g - O-/ Kelly Bo no, Esquire I.D. N 20b811 301 Ma W Street; P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff and Additional Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BFL, INC. V. Plaintiff ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and ENTERPRISE TRANSPORTATION CO. Defendant V. REX M. PAYTON, Defendant : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Lehigh County Coroner; Old Courthouse; Room 105; 501 West Hamilton Street; Allentown PA 18101-1614 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of medical records, medical reports, office notes, and/or correspondence related to any and all drug, alcohol and/or toxicology testing rendered to Keith Cole; Date of Birth: 10-04-1949; Social Security Number 235- 76-8791. at Kelly L. Bonanno, Esquire; Johnson, Duffie, Stewart & Weidner; 301 Market Street, Lemovne. PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requesting by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in ad vane, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON. NAME: Kelly L. Bonanno, Esquire; Johnson, Duffle, Stewart & Weidner P.C. ADDRESS: 301 Market Street Lemoyne, PA 17043 TELEPHONE: (717) 761-4540 SUPREME COURT ID # 200811 ATTORNEY FOR: Plaintiff and Additional Defendants By the Court: DATE: Seal of the Court 293422 CIVIL ACTION - LAW NO. 06-2312 CIVIL TERM Prothonotary Deputy -_, ._.., -- ??s _ --?-? r _ • U? `? =_ -? _ _"-? _ ? _ __ ? ?r; ?.-.a ?; .? .rq Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com BFL, INC. Plaintiff V. ERIC COLE, ADMINISTRATOR FOR THE ESTATE OF KEITH COLE and EPCO, INC., Defendants Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 06-2312 CIVIL TERM V. REX M. PAYTON, : JURY TRIAL DEMANDED Additional Defendant PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above-captioned action discontinued and ended with prejudice on the docket. J ON, DUFFIE, STEWART & WEIDNER BY: John A. Statler, Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 DATE: Attorneys for Plaintiff 318326 14362-1 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the S? day of M,6 4 1 jg r-Y 2008, addressed to the following: Delano M. Lantz, Esquire McNees Wallace & Nurick, LLC 100 Pine Street; P.O. Box 1166 Harrisburg, PA 17108-1166 E, STfWART & WEIDNER By: John A'Stat4 ui Attorney I.D. No. 43 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff 285378 !^^,? 1 '' ?,. c4.J ?17 --? £ ;?1?? i? Cs" ti "r'?. ^":,'? _. l.,rt A `? _ ?. S:'?u'