HomeMy WebLinkAbout02-1838PULEO & D'EMILIO, LLC
PAUL F. D'EMILIO, ESQUIRE
ATTORNEY I.D.# 16654
660 SENTRY PARKWAY, SUITE 210
BLUE BELL, PA 19422
(610) 941-3600
ATTORNEY FOR PLAINTIFF
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.
13810 FNB PARKWAY
OMAHA, NE 68154-5202
VS.
GEORGE SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
AND
AIMEE SWANK A/K/A AMY SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
NOTICE
You have been sued In court. If you wish to defend against the
claims set forth in the following pages, you must take action
within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by
attorney and filing In writing with the ccourt your defenses or
objections to the claims set forth against you. You are warned
that If you fall 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
(soo) 990-910s
THIS IS AN ARBITRATION MATTER
COMMON PLEAS COURT OF
CUMBERLAND COUNTY
ClVIL ACTION
AVISO
Le han demandado a usted en la corte. Si usted quiets
defanderse de estas demandas expuestas en las paginas
slgulentss, usted tlene (20) dias de plazo a partlr de la facha de
la demanda y la notlflcaclon. Usted debs presenter una
apariencia secrita o en persona o por abogado y archivar en la
corts sue defenses o sue objeclones a las demandas encontra
de su persona. Sea avlsedo que si usted no se dsflende, la
corte tomara medldas y puede entrar una orden contra ustsd sin
prevlo avlso o noflflcacion o por coalqler queJa o allvlo que
sepedldo en la peticlon de demanda. Usted puede perder
dlnero, sue propledadse o otros derechos Importantee para
usted.
LLEVE ESTA DEMANDAA UN ABOGADO INMEDIATAMENTE. SI
NO TIENE ABOGADO O SI NO TIEHE EL DINERO SUFIClENTE
PARA PAGAR TAL SERVlClO, VAYA EN PERSONA O LLAME
POR TELEFONO A LA OFIClNA CUYA DIRECClON SE
ENCUENTRA ESCRITA ABA JO PARA AVERIOUAR DONDE
USTED PUEDE CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(800) 990-9108
PULEO & D'EMILIO, LLC
PAUL F. D'EMILIO, ESQUIRE
ATTORNEY I.D.# 16654
660 SENTRY PARKWAY, SUITE 210
BLUE BELL, PA 19422
(610) 941-3600
ATTORNEY FOR PLAINTIFF
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.
13810 FNB PARKWAY
OMAHA, NE 68154-5202
VS.
GEORGE SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
AND
AIMEE SWANK A/WA AMY SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
THIS IS AN ARBITRATION MATTER
COMMON PLEAS COURT OF
CUMBERLAND COUNTY
CIVIL ACTION
COMPLAINT
The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney Paul F.
D'Emilio, Esquire, bring action upon a cause whereof the following is a statement:
1. The Plaintiff, Empire Fire and Marine Insurance Company is a Corporation
authorized to do business in the Commonwealth of Pennsylvania, having an office at
13810 FNB Parkway, Omaha, NE 68154-5202.
Plaintiff brings this action as subrogee of Forklift's Inc. (herein the "Insured")
under a policy of automobile insurance # SD0800122, issued by Plaintiff.
2. The Defendants, George Swank and Aimee Swank a/k/a Amy Swank are
individuals residing at 44 Lilac Drive, Mechanicsburg, PA 17055.
3. At all times hereinafter mentioned Defendant, Amiee Swank a/k/a Amy Swank
was the agent, servant, workman, employee then and there engaged in the business of
the Defendant, George Swank within the scope of her employment.
4. On or about the 28th day of June, 2000, a motor vehicle owned by Plaintiff's
insured was traveling along Sporting Hill Road in the borough of Mechanicsburg,
County of Cumberland and Commonwealth of Pennsylvania when it was struck by
another vehicle owned by the Defendant George Swank and operated by the
Defendant, Amiee Swank a/k/a Amy Swank causing the damages hereinafter set forth.
COUNT I
Shelby Insurance Company v. Amiee Swank alk/a Amy Swank
5. Plaintiff incorporates all of the allegations contained in paragraphs 1 through 4
inclusive as fully as though the same were herein set forth at length.
6. The said occurrence was due solely to the negligence of the Defendant, ^miee
Swank a/k/a Amy Swank in that she:
a. did fail to have her motor vehicle under proper and adequate control;
b. did operate the motor vehicle at an excessive rate of speed;
c. did fail to apply her brakes in time to avoid the collision;
d. did fail to obey stop signs and yield signs;
e. did fail to observe the Insured's vehicle in accordance with existing traffic
conditions and traffic controls;
f. did permit or allow her vehicle to strike and collide with the automobile
operated by the Insured;
g. did fail to exercise the degree of care required of a motorist merging into
other lanes of traffic;
h. did fail to drive at a speed and in a manner that would allow him to stop
within the assured clear distance ahead;
i. did fail to drive at a speed and in a manner that would allow him to move
between lanes within the assured clear distance ahead;
j=
did fail to properly observe traffic signals controlling her direction of travel;
did fail to keep a reasonable lookout for other vehicles lawfully on the
2
road;
I. did operate her motor vehicle without due regard for the rights, safety and
position of the Insured's vehicle at the point aforesaid in that she did attempt to
overtake Insured's vehicle and pass it on the right;
m. did fail to yield the right of way; and
n. did violate the various statutes and laws of the County of Cumberland and
the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles.
Count II
Shelby v. George Swank
7. Plaintiff, Shelby Insurance, incorporates by reference all of the allegations
contained in paragraphs 1 through 6 inclusive
of this Complaint as fully as though same were herein and set forth at length.
8. The said occurrence was do to the negligence of the Defendant, George Swank,
in that he or someone authorized by him or on his behalf did:
a. entrust his vehicle to another operator for use when he knew, or with a
reasonable exercise of due care should have known, that the operator was not capable
of operating the motor vehicle properly;
b. negligently entrust the motor vehicle to another.person which he knew, or
in the exercise of reasonable care should have known, was not authorized to use the
vehicle;
c. negligently entrust the motor vehicle to a person which he knew, or in the
exercise of reasonable care should have known, was an incompetent driver;
d. negligently entrust the motor vehicle to a person known, should have
known or in the exercise of reasonable care would have known, was going to drive the
vehicle in an improper, dangerous or reckless manner;
e. negligently entrust the motor vehicle to another person who he knew,
should have known or in the exercise of due care would have known would permit
others to use the vehicle;
f. negligently entrust the motor vehicle to a person who did not maintain financial
responsibility as required by the laws of the Commonwealth of Pennsylvania.
WHEREFORE, Plaintiff demands judgment against each Defendant on each
Count in an amount not in excess of Fifty Thousand and 001100 ($50,000.00) Dollars
together with costs of suit.
P~UL FT'B'EMILIO, ESQUIRE
ATTORNEY FOR PLAINTIFF
4
VERIFICATION
Robert J. Urb-~, Jr., Empire Fire and Marine Insurance
Company, Plaintiff in the above captioned matter verifies~-TM that_'.
the facts contained in the foregoing Complaint are true ~d ~
correct. I understand that false stat~men~ herein are n~_de ~
subject to the penalties of 18 Pa. C.S. Section 4904 tel _a_~i~g _.~o.
unsworn falsification to authorities./~ _~-- ~
EXHIBIT "A"
12TM & MARKET STREETS, LEMOYNE, PA 17043
(717) 761-8'K)0 HOURS: MONDA¥-FHIDA¥
'/':30 AM - 6:0;) PM
~u~ul~i~la zl~, NO. 495
12TM & MARKET STREETS, LEMOYNE, PA 17043
HOUR~: MONDAY-FRIDAY
'/61.6700' ?:~ AM - 6:00 PM
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.,
Plaintiffs,
GEORGE SWANK AND AIMEE SWANK
a~k/a AMY SWANK,
Defendants.
COMMON PLEAS COURT OF
CUMBERLAND COUNTY
: No. 02-1838 Civil Term
CIVIL ACTION
ENTRY OF APPEARANCE
To the Prothonotary:
Please enter my appearance on behalf of the Defendants George Swank and Aimee Swank a/k/a Amy
Swank.. Thank you.
Respectfully submitted,
LAW OFFICES OF ANN WALDHERR
Joh~ C. Swanz, Jr., Esqu' ~
I.D. NO. 62012
Hillside Corporate Center
5001 Louise Drive, Second Floor
Mechanicsburg, PA 17055
Attorney for Defendants
CERTIFICATE OF SERVICE
I, John C. Swartz, Jr., Esquire, hereby certify that I have this 21st day of May, 2002, caused to be
served via first class United States Mail, postage prepaid, a true and correct copy of the foregoing pleading
upon the following:
Paul F. D'Emilio, Esquire
Puleo & D'Emilio, LLC
660 Sentry Parkway, Suite 210
Blue Bell, PA 19422
John ~Swartz, Jr., E~
SHERIFF'S RETURN -
,CASE'NO: 2002-01838 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
NOT FOUND
EMPIRE FIRE AND MARINE INS
VS
SWANK GEORGE ET AL
R. Thomas Kline
duly sworn according to law,
inquiry for the within named defendant,
SWANK GEORGE
,Sheriff or Deputy Sheriff, who being
says, that he made a diligent search and
DEFENDANT
but was
He therefore returns the
unable to locate Him in his bailiwick.
COMPLAINT & NOTICE ,
, NOT FOUND , as to
the within named DEFENDANT , SWANK GEORGE
THERE IS NO GEORGE SWANK AT ADDRESS GIVEN.
Sheriff's Costs:
Docketing 18.00
Service 12.42
Not Found 5.00
Surcharge 10.00
.00
45.42
PULEO & DEMILIO
05/02/2002
R/ Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed to before me
this /-~ ~ day of ~__
~ 6~ P._ A.D.
PrdtHonot-A~y ~
SHERIFF'S RETURN -
~CASE'NO: 2002-01838 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
EMPIRE FIRE AND MARINE INS
VS
SWANK GEORGE ET AL
REGULAR
BRIAN BARRICK , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SWANK AIMEE AKA AMY SWANK the
DEFENDANT , at 2040:00 HOURS, on the 1st day of May
at 44 LILAC DRIVE
, 2002
MECHANICSBURG, PA 17055
CHARLES SWANK, HUSBAND
a true and attested copy of COMPLAINT
by handing to
& NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10o00
.00
16.00
Sworn and Subscribed to before
me this /? ~ day of
~ ~v3~ A.D.
~P~othonotary ~ ~
So Answers:
R. Thomas Kline
05/02/2002
PULEO & DEMI~/~O
Deputy Sheriff
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.,
Plaintiffs,
GEORGE SWANK AND AIMEE SWANK
a/k/a AMY SWANK,
Defendants.
: COMMON PLEAS COURT OF
: CUMBERLAND COUNTY
: No. 02-1838 Civil Term
: CIVIL ACTION
NOTICE TO PLEAD
Empire Fire & Marine Insurance Company as submgee of Forklift's Inc.
c/o Paul F. D'Emilio, Esquire
Puleo & D'Emilio, LLC
660 Sentry Parkway, Suite 210
Blue Bell, PA 19422
You are hereby notified to file a written response to the enclosed Defendants' Answer with New Matter
within 20 days of service hereof or a judgment may be entered against you.
Respectfully submitted,
LAW OFFICES OF ANNA WALDHERR
5001 Louise Drive, Second Floor
Mechanicsburg, PA 17055-6912
(717) 691-2063
Counsel for Defendants
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.,
Plaintiffs,
GEORGE SWANK AND AIMEE SWANK
a/k/a AMY SWANK,
Defendants.
: COMMON PLEAS COURT OF
: CUMBERLAND COUNTY
: No. 02-1838 Civil Term
: CIVIL ACTION
DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER
AND COUNTERCLAIM
AND NOW, come Defendants George Swank and Aimee Swank, by and through their attorney,
John C. Swartz, Jr., Esquire, and file the following Answer with New Matter and Counterclaim by
averring as follows:
1. Admitted based upon information and belief.
2. Admitted in part and denied in part. It is denied that Mr. Swank's first name is George.
His first name should be read as "Charles."
3. Denied. The averments of paragraph 3 state conclusions of law to which no responsive
pleadings are necessary. By way of further response, it is specifically denied that Aimee Swank was ever
employed or operating as a servant of Defendant George Swank.
4. Denied. After reasonable investigation, answering Defendants are without information or
knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph 4 of
Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial.
COUNT I
SHELBY INSURANCE COMPANY V. AIMEE SWANK A/K/A AMY SWANK
5. No response required.
6. Denied. The averments of paragraph 6(a) through (n) inclusive state conclusions of law to
which no responsive pleadings are necessary, and therefore, are denied and specific proof thereof is
demanded at trial.
WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff,
together with costs and other such relief this Court deems just and appropriate.
COUNT I
SHELBY INSURANCE COMPANY V. AIMEE SWANK A/bUA AMY SWANK
7. No response required.
8. Denied. The averments of paragraph 8(a) through (f) inclusive state conclusions of law
to which no responsive pleadings are necessary.
WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff,
together with costs and other such relief this Court deems just and appropriate.
DEFENDANTS' NEW MATTER
9. The averments ¶graph 1 through 8 &Defendants' Answer are incorporated herein as if
set forth more fully and at length.
10. Plaintiffs causes of action alleged are barred in whole or in part by the applicable Statute of
Limitations.
11. Plaintiffs causes of action alleged are barred in whole or in part by the application of the
Doctrine of Contributory Negligence as may be applied to the facts disclosed in discovery.
12. Plaintiffs causes of action alleged are barred in whole or in part by the Pennsylvania
Comparative Negligence Statute as may be applied to the facts disclosed in discovery.
13. Plaintiffs causes of action alleged are barred in whole or in part by the application of the
Doctrine of Assumption of the Risk as may be applied to the facts disclosed in discovery.
14. Plaintiffs' causes of action alleged and any damages claimed by the Plaintiff were caused by
individuals and/or entities over which Answering Defendants had no control or right to control.
15. Any injuries or damages sustained by Plaintiff were not proximately caused by any conduct of
the Answering Defendant.
16. Plaintiffs claims are barred in whole or in part, by the Pennsylvania Motor Vehicle Financial
Responsibility Law.
2
17. Answering Defendants plead the defense of last clear chance rule.
18. Defendant Amie Swank was not operating said vehicle in the course and scope of any
employment for Defendant Charles "George" Swank.
WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff,
together with costs and other such relief this Court deems just and appropriate.
COUNTERCLAIM
19. The averments of paragraphs 1 through 18 are incorporated herein as if more fully set
forth and at length.
20. At the time of the subject accident, an employee of Plaintiff Forklift's, Inc. driver, Dale
McClure, was operating the subject vehicle in the course and scope of his employment with Forklift's,
Inc.
22. Plaintiff Forklift's Inc. is vicariously liable for the negligence and actions of its driver
regarding this incident, who was operating said vehicle in the course and scope of his employment with
Forklift, Inc.
23. The said occurrence was due to the negligence of Plaintiff Forklift's, Inc. and its
employee as follows:
a. Failure to have motor vehicle and adequate control;
b. Operating the vehicle at an excessive rate of speed;
c. Failure to apply brakes in time to avoid a collision;
d. Failure to obey all traffic controls;
e. Operating vehicle in a reckless and negligent manner for the conditions as they
existed at the time of the accident;
f. Permitting his vehicle to strike and collide the vehicle of the Defendant;
g. Failure to exercise reasonable degree of care required of a motorist on the
roadway at the time of the incident;
h. Failure to operate his vehicle in a speed and manner which would allow him to
stop within the assured clear distance ahead;
i. Failure to keep a reasonable lookout for other vehicles lawfully on the roadway
that may be merging or turning left at the intersection;
j. Operating his vehicle without due regards for the rights, safety and position of
the Defendant's vehicle in an attempt to overtake traffic on Sporting Hill Road;
k. Failure to yield the right-of-way; and
I. Violation of the various statutes and laws of Cumberland County and the
Commonwealth of Pennsylvania pertaining to the operation of motor vehicles.
24. As a direct and proximate result of Defendant Forklift's, Inc.'s negligence, Defendants
incurred damages in the amount of $541.50. A true and correct copy of the estimate of Defendants'
vehicle damage is marked as Exhibit A and attached hereto and incorporated herein.
WHEREFORE, Defendants demand judgment against Plaintiff on its counterclaim in an amount
not in excess of $50,000.00, together with costs of suit.
Respectfully submitted,
LAW OFFICES OF ANN WALDHERR
I.D. NO. 62012
Hillside Corporate Center
5001 Louise Drive, Second Floor
Mechanicsburg, PA 17055
Attorney for Defendants
VERIFICATION
We, Aimee Swank and Charles Swank, verify that the statements made in the foregoing pleadings
are true and correct to the best of our personal knowledge, information or belief. We understand that these
statements are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to
authorities.
Aimee Swank
6
CERTIFICATE OF SERVICE
I, John C. Swartz, Jr., Esquire, hereby certify that 1 have this 12st day of June, 2002, caused to be
served via first class United States Mail, postage prepaid, a tree and correct copy of the foregoing pleading
upon the following:
Paul F. D'Emilio, Esquire
Puleo & D'Emilio, LLC
660 Sentry Parkway, Suite 210
Blue Bell, PA 19422
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.,
Plaintiffs,
Vo
GEORGE SWANK AND AIMEE SWANK
a/k/a AMY SWANK,
Defendants.
: COMMON PLEAS
: CUMBERLAND C{
.
: No. 02-1838 Civil
:
:
: CIVIL ACTION
NOTICE TO PLEAD
To'
Empire Fire & Marine Insurance Company as subrogee of Forklift's Inc
c/o Paul F. D'Emilio, Esquire
Puleo & D'Emilio, LLC
660 Sentry Parkway, Suite 210
Blue Bell, PA 19422
You are hereby notified to file a written response to the enclosed Defendant~
within 20 days of service hereof or a judgment may be entered against you.
Respectfully submitte
LAW OFFICES oF
5001 Louise Drive, S,
Mechanicsburg, PA
(717) 691-2063
Counsel for Defenda
20URT OF
)UNTY
Answer with New Matter
I)
nter
:ond Floor
I055-6912
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.,
Plaintiffs,
GEORGE SWANK AND AIMEE SWANK
a/k/a AMY SWANK,
Defendants.
: COMMON PLE,~
CUMBERLAND
:
.
: No. 02-1838 Civil
:
:
:
;
: CIVIL ACTION
S COURT OF
COUNTY
Terl/l
DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT WF]
AND COUNI'ERCLAIM
AND NOW, come Defendants George Swank and Aimee Swank, b
John C. Swartz, Jr., Esquire, and file the following Answer with New
averring as follows:
1. Denied. After reasonable investigation, answering Defendan
knowledge sufficient to form a belief as to the truth of the allegations
Plaintiffs Complaint, and therefore, answering Defendants deny same and &
2. Admitted.
3. Denied. The averments of paragraph 3 state conclusions of
pleadings are necessary. By way of further response, it is specifically denied
employed or operating as a servant of Defendant George Swank.
4. Denied. After reasonable investigation, answering Defendan~
knowledge sufficient to form a belief as to the truth of the allegations
Plaintiff's Complaint, and therefore, answering Defendants deny same and den
5. Denied. After reasonable investigation, answering Defendant
knowledge sufficient to form a belief as to the truth of the allegations
Plaintiff's Complaint, and therefore, answering Defendants deny same and dcm
'H NEW MATTER
and through their attorney,
latter and Counterclaim by
are without information or
~t forth in paragraph 1 of
aand strict proof at trial.
aw to which no responsive
hat Aimee Swank was ever
are without information or
forth in paragraph 4 of
nd strict proof at trial.
are without information or
forth in paragraph I of
~d strict proof at trial.
6. The averments of paragraph 6(a) through (n) inclusive state conclusions of law to which
no responsive pleadings are necessary, and therefore, are denied and specific ~roof thereof is demanded at
trial.
WHEREFORE, Defendants demand judgment is entered in their f~ ~or and against the Plaintiff,
together with costs and other such relief this Court deems just and appropriat,
DEFENDANTS' NEW MATTER
7. The averments of paragraph 1 through 6 of Defendants' Answe are incorporated herein as if
set forth more fully and at length.
8. Plaintiffs causes of action alleged are barred in whole or in pm t by the applicable Statute of
Limitations.
9.
Plaintiffs causes of action alleged are barred in whole or in
Doctrine of Contributory Negligence as may be applied to the facts disclosed in
10. Plaintiffs causes of action alleged are barred in whole or
Comparative Negligence Statute as may be applied to the facts disclosed in disc,
11. Plaintiffs causes of action alleged are barred in whole or in
Doctrine of Assumption of the Risk as may be applied to the facts disclosed in di
12. Plaintiffs' causes of action alleged and any damages claimed by
individuals and/or entities over which Answering Defendants had no control or r
13. Any injuries or damages sustained by Plaintiff were not proximate
the Answering Defendant.
14. Plaintiffs claims are barred in whole or in part, by the Pennsylvm
Responsibility Law.
15. Answering Defendants plead the defense of last clear chance rtle.
16. Defendant Amie Swank was not operating said vehicle in th~
employment for Defendant Charles "George" Swank.
art by the application of the
liscovery.
part by the Pennsylvania
cry.
trt by the application of the
;covery.
the Plaintiff were caused by
ght to control.
/ caused by any conduct of
ia Motor Vehicle Financial
course and scope of any
WHEREFORE, Defendants demand judgment is entered in their 1
together with costs and other such relief this Court deems just and appropri,
COUNTERCLAIM
17. The averments of paragraphs 1 through 16 are incorporate{ herein as if more fully set
forth and at length.
19. At the time of the subject accident, an employee of Plaintif~ Forklift's, Inc. driver, Dale
McClure, was operating the subject vehicle in the course and scope of his ~mployment with Forklift's,
Inc.
20. Plaintiff Forklift's Inc. is vicariously liable for the neglige~ ce and actions of its driver
regarding this incident, who was operating said vehicle in the course and sc, >pc of his employment with
Forklift, Inc.
21. The said occurrence was due to the negligence of Plain iff Forklift's, Inc. and its
employee as follows:
a. Failure to have motor vehicle and adequate control;
b. Operating the vehicle at an excessive rate of speed;
c. Failure to apply brakes in time to avoid a collision;
d. Failure to obey all traffic controls;
e. Operating vehicle in a reckless and negligent mann, ' for the conditions as they
existed at the time of the accident;
f. Permitting his vehicle to strike and collide with the v ficle of the Defendant;
g. Failure to exercise reasonable degree of care re{ red of a motorist on the
roadway at the time of the incident;
h. Failure to operate his vehicle in a speed and manner ~vhich would allow him to
stop within the assured clear distance ahead;
i. Failure to keep a reasonable lookout for other vehich lawfully on the roadway
that may be merging or turning left at the intersection;
3
vor and against the Plaintiff,
j. Operating his vehicle without due regards for the
the Defendant's vehicle in an attempt to overtake traffic on Sporting Hill Rc
k. Failure to yield the right-of-way; and
1. Violation of the various statutes and laws of C
Commonwealth of Pennsylvania pertaining to the operation of motor vehicle:
22. As a direct and proximate result of Defendant Forklift's, Ir
incurred damages in the amount of $541.50. A true and correct copy of
vehicle damage is marked as Exhibit A and attached hereto and incorporated ]
WHEREFORE, Defendants demand judgment against Plaintiff on it
not in excess of $50,000.00, together with costs of suit.
ights, safety and position of
d;
~mberland County and the
:.'s negligence, Defendants
:he estimate of Defendants'
~erein.
counterclaim in an amount
Respectfully submitt~
LAW OFFICES O1~ ANN WALDHERR
Jo C. Swartz, Jr., ff~tuire ~
Hillside Corporate Ce
5001 Louise Drive, S~
Mechanicsburg, PA
Attorney for Defenda
ater
cond Floor
7055
[ts
Damage Assessed By.' 136710 Nicholas Starslnic
Appraised Fort AGNES KEMPER - P
Condition Code: Good
Date of Loss: 6~28~00
Contact Date: 7/7~00
Deductible: UNKNOWN
File Number: AG-0006-42
Claim Number: 253-AP143213
Insured:
Address:
Telephone:
AIMEE SWANK
44 LILAC DR. MECHANICSBURG, PA 17055
Work Phone:(717) 232-7465
Description: 1993 Ford Escort LX
Body Style: 4D HB
VIN: 1FAPP14JYPW362973
MIIsege: 110,907
Type of Loss: Colll~
Received
Home Phone: (717) 691-5568
Date: 7/10/00 08:t2 AM
Estimate ID: AG-0006-42
tlmate Version: 0
Committed
Profile ID: Mitchell
7/6,,;':" /
Mitchell Service: 917~18
"Vehi~ e ProductiOn Date: 1/93
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· .. ::.' '~ ':. ::';.'!i~::: ....... , ..... , . ·
· ..;,. Tl
~ " ~".!;;:; ....!. ,.'.; .i,..'f ....,i',~. i. ' '.. ')'i/i' ..
be rejected unless ot~'~'~['.~, app=oved by the app~'~:~:'~'~ ¢
company prior to such supplemental repairs.
Line Entry Labor Line Item Part'
Item Number Type Operation Description Part I
BDY REMOVE/INSTALL FRT BUMPER ASSY
BDY REPAIR FRT BUMPER COVER Exlsl
REF REFINISH FRT BUMPER COVER
REF REFINISH GRILLE
BDY * REPAIR BUFF HOOD PANEL Exist
BDY REMOVE/REPLACE R H/LAMP LENS F1 CZ
BDY CHECK/ADJUST HEADLAMPS '_
BDY * REMOVE/REPLACE FLEX ADDITIVE (1) Subl;
BDY * REMOVE/REPLACE CAR COVER EXTERIOR Suble
REF ADD'L OPR CLEAR COAT
REF ADD'L OPR TINT COLOR
ADD'L COST PAINT/MATERIALS
ADD'L COST HAZARDOUS WASTE DISPOSAL
1 700590
2 700708
3 AUTO
4 701460
5 900500
6 701800
7 AUTO
8 900500
9 900500
10 AUTO
11 933003
12 AUTO
13 AUTO
ESTIMATE RECALL NUMBER: 7/10/00 08:12:40 AG-0006-42
UltrsMste Is a Trademark of Mitchell International
Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell Intemstlonal
All Rights Reserved
~j 4 Cyl 5M
{Z8 PA
3
~'i'::~harges may
~r insurance
lumber
~g
lg
13007 A
Dollar Labor
Amount Units
0.8
2.0'
C 2,3
C 0.8
0.5*
94.62 0.6 #
0.4
6.00 ~ 0.0'
3.00 * 0.0'
1.1
0.5*
79.90 *
3.00 *
Page 1 of 4
Exhibit A
POST OFFICE BOX 7462
· ~ STEELTON, PA 17113-0462
:~HONE 7~t7~939-9891 '~FAX 7'
F_~ Date: 7/t0/00 08:12 AM
Estimate ID: AG-0000.42
tlmate Version: 0
Committed
Profile ID: Mitchell
* - Judgement Item '
# - Labor Note Applies
C - Included in Clear Coat Calc
Prior Damage
NONE
** KEY TO ABBREVIATIONS USED IN APPRAISALS **
LA~OR TYPES: BDY-Body BDS- Body St~ctu~re REF-Refinish ~LS-Glass
FRM- Freune MCH-.~chanic~i" ..
xon ? o x oPmu T O S/ ? n, r.- itional..ii o er,tion
QTR-Quarter FNDR- Fande~'"':'ERT-:::Fron~:~ ':'"iRR- ]~r ]~ ?.efP- R- ]Eight
Outer -
REPL-Replac~ent Q~R- ~arte~./ ~-Afte~r~e~ 0~- O~ ~inal.
INCL-Included RaI- a~ye,~d Ins~a!!. a&~. a~ove andRepla=e
for insuranc6 or s~at~":'~of' - "~'"'""--claim containing a~':]'~]~e~ially false
mnfo~tmon or conceals ~or ~he pu~ose of ~sleadi~; tnfo~tion
concernin~ any fact ~terial thereto co--its a fraudulex~t insurance
act, which is a crime and s~jects the per~n to crimin~,l and civil
penalties.
~bor Sublet
I. Labor Subto~ls Unl~ ~te ~ount ~ount Totals II. Pa~ Replaceme~ ~t Summa~ ~ount
Body 4.3 36.00 0.00 0.00 1~.80 T Taxable Pa~ 103.62
Refinish 4.7 36.00 0.00 0.00 ' 169,20 T Sales Tm ~ 6.000% 6.22
T~able ~bor _ 324.00. Total Replacem~ nt Pa~ ~ount t 09.84
~bor Tax ~ 6.000%
~bor Summa~ 9.0 ~3.~
ESTIMATE REC~L NUMBER: 7110100 08:12:40 AG~006~2
UltraMate Is a Trademark of Mitchell International
Mitchell Da~ Vemlon: JUN_00~ CopFIght (C) 1994 - t999 Mitchell International Page 2 of 4
NI RIg~ Rese~ed
POST OFFICE BOX' 7462
7 STEELTON, PA 17113-0462
'HONE 7,1.7.939;9891
III. Additional Costa
Taxable Costa
Sales Tax
Total Additional Costs
Point(s) of Impact
Front Canter (P)
6,000%
Amount IV. Adjustmenta
82.90 Custon
4.97
87.87
I. Total Lab;
II. Total Rep]
III. Total Add
IV. Total AdJL
Net T~
Date: 7110/00 08:t2 AM
Estimate ID: AG'0006-42
tlmata Version: 0
Committed
Profile ID: Mitchell
,er Responsibility
mcement Parts,*
ilonal Costa:
Gross Total:
~tmenta:
si:
· ' Inspe~lon Slta: 2ND;,~ KELKER STR.
', .::, i ~:. · HBG ~':
.,"' ':'.~.,:~':';~'~'~~'~",po~a~:oat.. ?/7/0~
Body Shop: LUCAS B/$ ' ' i' :'
MECHANICSBuRG, PA 1705~ · : :; i ' ' 'i
Telephone: (717) 766-0641 ' .. ...: . · ' ' ,
Amount
0,00
343.44
109.84
87.87
541.15
0.00
541.15
ESTIMATE RECALL NUMBER: 7/t0/00 08:12:40 AG-0006-42
UltraMata Is a Trademark of Mitchell International
Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International
All Rlghta Reserved
Page 3 of 4
VERIFICATION
We, Aimee Swank and Charles Swank, verify that the statements m,'
are true and correct to the best of our personal knowledge, information or bel
statements are made subject to the penalties of 18 Pa.C.S. §4904, relatin
authorities.
Charles Swank
Aimee Swank
~e in the foregoing pleadings
:f. We understand that these
to unswom falsification to
CERTIFICATE OF SERVICE
I, John C. Swartz, Jr., Esquire, hereby certify that I have this 13th de
served via first class United States Mail, postage prepaid, a true and correct c,
upon the following:
of June, 2002, caused to be
>y of the foregoing pleading
Paul F. D'Emilio, Esquire
Puleo & D'Emilio, LLC
660 Sentry Parkway, Suite 210
Blue Bell, PA 19422
J~n"C: Swartz, Jr., l~sq~ir~ ~/
PULEO & D'EMILIO, LLC
PAUL F. D'EMILIO, ESQUIRE
ATTORNEY I.D.# 16654
660 SENTRY PARKWAY, SUITE 210
BLUE BELL, PA 19422
(610) 941-3600
ATTORNEY FOR PLAINTIFF
THIS IS AN ARBITRATION MATTER
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.
13810 FNB PARKWAY
OMAHA, NE 68154-5202
VS.
CHARLES SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
AND
AIMEE SWANK A/K/A AMY SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
COMMON PLEAS COURT OF
CUMBERLAND COUNTY
NO. 02-1838
CIVIL ACTION
REPLY TO THE NEW MATTER OF THE DEFENDANTS
TO PLAINTIFF'S COMPLAINT
The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney Paul F.
D'Emilio, Esquire, replies to the New Matter of Defendants, Charles Swank and Aimee
Swank a/k/a Amy Swank in the above captioned matter and sets forth as follows:
9. Plaintiff incorporates by reference all of the allegations contained in paragraphs
1 through 8 of the Complaint as fully as though same were herein set forth at length.
10-13. Denied. The allegations are conclusions of law to which no responsive
pleading is required by the Pennsylvania Rules of Civil Procedure.
14. Denied. It is specifically denied that Plaintiff's damages were caused by
individuals and/or entities over which Answering Defendants had no control or right to
control. On the contrary, the allegations contained in the Complaint are incorporated
herein by reference as fully as though same were herein set forth at length. The
allegation is a conclusion of fact to which no responsive pleading is required by the
Pennsylvania Rules of Civil Procedure. The material facts upon which the allegation is
based are not pleaded with particularity as required by the Pennsylvania Rules of Civil
Procedure. After a reasonable investigation Plaintiff is without any knowledge or
information sufficient to form a belief as to the truth of the averments and strict proof
thereof is demanded at trial if relevant to the issues.
15-17. Denied. The allegations are conclusions of law and fact to which no
responsive pleading is required by the Pennsylvania Rules of Civil Procedure.
18. Denied. It is specifically denied that Amiee Swank a/Ida Amy Swank was not
operating the vehicle in the course and scope of any employment for the Defendant,
Charles Swank. On the contrary, all of the allegations contained in the Complaint are
incorporated herein by reference as fully as though same were herein set forth at
length. Furthermore, the allegation is a conclusion of fact to which no responsive
pleading is required by the Pennsylvania Rules of Civil Procedure and the material facts
upon which the allegation is based are not pleaded with particularity as required by the
Pennsylvania Rules of Civil Procedure. After a reasonable investigation Plaintiff is
without any knowledge or information sufficient to form a belief as to the truth of the
averments and strict proof thereof is demand at trial if relevant to the issues.
WHEREFORE, Plaintiff demands judgment against the Defendants on each
Count in an amount not in excess of Fifty Thousand and 00/100 ($50,000.00) dollars
together with costs of suit. ~j ~~~..~
P'A'UL FT. ~)'EMILIO, ESQUIRE
ATTORNEY FOR PLAINTIFF
2
VERIFICATION
Paul F. D'Emilio, Attorney for Empire Fire and Marine Insurance Company,
PLAINTIFF in the above captioned matter verifies that the facts contained in the
foregoing are true and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.$. Section 4904 relating to unsworn falsification to
authorities.
Paul F D~E~n't'liS,'E~luire
PULEO & D'EMILIO, LLC
PAUL F. D'EMILIO, ESQUIRE
ATTORNEY I.D.# 16654
660 SENTRY PARKWAY, SUITE 210
BLUE BELL, PA 19422
(610) 941-3600
THIS IS AN ARBITRATION MATTER
ATTORNEY FOR PLAINTIFF
EMPIRE FIRE AND MARINE INSURANCE
COMPANY AS SUBROGEE OF
FORKLIFT'S INC.
13810 FNB PARKWAY
OMAHA, NE 68154-5202
VS.
CHARLES SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
AND
AIMEE SWANK A/K/A AMY SWANK
44 LILAC DRIVE
MECHANICSBURG, PA 17055
COMMON PLEAS COURT OF
CUMBERLAND COUNTY
NO. 02-1838
CIVIL ACTION
PRELIMINARY OBJECTIONS BY THE PLAINTIFF TO THE
DEFENDANT'S NEW MATTER COUNTERCLAIM AGAINST FORKLIFT'S INC.
Plaintiff by its attorney, Paul F. D'Emilio, Esquire, objects to the New Matter
Couterclaim filed by the Defendant in the above entitled matter and sets forth as
follows:
1. Plaintiff is Empire Fire and Marine Insurance Company ("Empire") is a
corporation authorized to do business in the Commonwealth of Pennsylvania.
2. On or about June 28, 2000, in the Borough of Mechanicsburg, County of
Cumberland and Commonwealth of Pennsylvania, a motor vehicle insured by the
Plaintiff was struck by another vehicle owned by the Defendant, George Swank and
operated by the Defendant, Aimee Swank a/k/a Amy Swank.
3. Pursuant to the terms of the policy, Empire paid its insured for damages to their
automobile.
4. On April 15, 2002, Empire commenced the above Civil Action in the Common
Pleas Court of Cumberland County against the Defendants George Swank and Amiee
Swank a/k/a Amy Swank.
5. In this action, Empire is subrogee of Forklift's Inc. under automobile insurance
policy number SE800122 and demands return of the monies paid to repair the
damages to the automobile it insured, Forklift's Inc.
6. In the response to the action Defendants filed a Counterclaim. The
Counterclaim does not state a Defendant. The Counterclaim appears to blame the
accident on a "employee of Plaintiff Forklift's driver, Dale McClure". Neither Forklift's
Inc. nor Dale McClure are parties to this action. The Counterclaim then "demands
judgment against Plaintiff [Empire] on its Counterclaim in an amount not in excess of
$50,000.00 together with costs of suit."
Count I
Preliminary Objections
7. Plaintiff incorporates by reference all of the allegations contained in Paragraphs
1 through 6 inclusive as fully as though same were herein set forth at length.
8. The counterclaim should be dismissed pursuant to Rule 1028 for the following
reasons:
a. The Defendants have failed to join a necessary party. Empire was not the
owner or driver of the vehicle. The driver of vehicle whom the Defendants allege
caused the damages is not a party to this action; and
b. Empire is not the proper Defendant on the Counterclaim. There are no
allegations that Empire or any of its agents, workman or employees were involved in
the event that gave rise to the Defendants' cause of action, and
c. Any cause of action against Forklift's Inc. is independent and separate from
the cause of action stated in the Complaint.
Count II
Preliminary Objections - Demurrer
9. Plaintiff incorporates by reference all of the allegations contained in Paragraphs
1 through 8 inclusive as fully as though same were herein set forth at length.
10. The Defendant's Counterclaim fails to state facts constituting a cause of action
against Empire in that the alleged injury and damages to Defendant's automobile was
not caused by Empire but by an employee of Forklift's Inc. who is not a party to this
action.
11. Defendant failed to comply with Rule 2252, et seq.
12. The allegations fail to set forth a claim against the Plaintiff, Empire but are
directed solely to an entity and individual not a party to this action
13. The Counterclaim fails to state a legal claim against the Plaintiff.
WHEREFORE, Plaintiff, Empire, respectfully request that Your Honorable Court
dismiss the counterclaim. ~~j ~~~,/~
PA~IL F; D'EI~IILIO,' ESQUIRE
ATTORNEY FOR PLAINTIFF
3
VERIFICATION
I. PAUL F. D'EMILIO, ESQUIRE be ng duly sworn according to law depose and
say tha{ the facts contained n the foregoing Preliminary Objections are true and correct
to the best of my knowledge, information and belief; and that this statement is made
subject to the penalties of 18 Pa. C.S. Section 4904/r~lating to u/m~worn falsification to
authorizes.I /v//,
Dat~ i'~'~o' ~ F. D'EMIrI-O; ES(~JIRE