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HomeMy WebLinkAbout06-4016IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, Plaintiff, CIVIL ACTION NO.: q0jL V. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER's INC., formally known as THE PENN CENTRAL CENTRAL CORPORATION, Individually and/or as Successor-in-interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY TYPE OF PLEADING: COMPLAINT IN CIVIL ACTION FILED ON BEHALF OF: PLAINTIFF, ROBERT HARPSTER COUNSEL OF RECORD FOR THIS PARTY: MARK F. McKENNA, ESQUIRE PA I.D. # 30297 Defendants TO: Defendants You are hereby notified to plead to the enclosed COMPLAINT IN CIVIL ACTION within twenty (20) days from service hereof or a default judgment may be entered against you. i & ASSOCIATES, P.C. BY: McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-6226 EKenna, Esquire for Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER CIVIL ACTION Plaintiff, CASE # VS. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER'S INC., formally known as THE PENN CENTRAL CENTRAL CORPORATION, Individually and/or as Successor-in-interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY Defendants. NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) DAYS after this Complaint and notice are served, by entering a written appearance personally or by an attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you failed 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 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, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue, Carlisle, Pennsylvania 717-249-3166 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER CIVIL ACTION nn // Plaintiff, CASE # vs. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER's INC., formally known as THE PENN CENTRAL CENTRAL CORPORATION, Individually and/or as Successor-in-interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY Defendants. COMPLAINT IN CIVIL ACTION AND NOW, comes the Plaintiff, ROBERT HARPSTER, by and through his attorneys, McKENNA & ASSOCIATES, P.C., and files the following Complaint in Civil Action and in support thereof avers as follows: 1. The Plaintiff, ROBERT HARPSTER, (hereinafter referred to as "Plaintiff'), is an adult-individual who resides at 404 Brick Church Rd., Enola, Cumberland County, Pennsylvania 17025. 2. The Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, (hereinafter referred to as "Defendant") is a Virginia Corporation that conducts and transacts business throughout the Commonwealth of Pennsylvania, and is involved in the movement of freight in interstate commerce and foreign commerce. 3. That all times relevant hereto, the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, is involved and does maintain a principal place of business in the Commonwealth of Pennsylvania, including Cumberland County, Pennsylvania. 4. Consolidated Rail Corporation is a Pennsylvania Corporation, conducting and doing business in and about Cumberland County, Pennsylvania, and is and was, at all times relevant hereto, engaged in interstate commerce in and throughout the several states of the United States as a common carrier by rail, and for that purpose, operated locomotives, railroad cars and transacted substantial business in and about Cumberland County, Pennsylvania. 5. American Premier Underwriters, Inc., formally known as THE PENN CENTRAL CORPORATION, individually and/or as successor-in-interest-or liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, the Trustees of the Property of the PENN CENTRAL TRANSPORTATION COMPANY, the Trustees of the Property of the PENN CENTRAL TRANSPORTATION, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY RAILROAD COMPANY, and/or ERIE LACKAWANNA, INC. ("AMERICAN UNDERWRITERS"), are and were at all times corporations duly organized, created and existing under the laws of the State of Pennsylvania and are and were at all times hereinafter mentioned a common carrier in interstate transportation and commerce by railroad. 6. At all times relevant hereto, Plaintiff, ROBERT HARPSTER herein was and is employed by the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY and its predecessors in interest the defendants herein named, as a trainman, as the term is defined under Section 45 U.S.C. § 51, and as such was engaged by the Defendants to perform duties in the furtherance of its business interest and movement of freight in interstate and foreign commerce by Defendants. 7. At all times relevant hereto, Defendants acted by and through its agents, servants or employees who were acting within the scope of their respective employment. 8. The acts of omission and commission causing injuries to the Plaintiff, ROBERT HARPSTER, were done by the Defendants, their agents, servants, workmen and/or employees, acting within the course and scope of their employment with and under the direct and exclusive control of the Defendant herein named. 9. All of the property, equipment and operations involved in Plaintiff, ROBERT HARPSTER's injury were owned and/or under the direct and exclusive control of the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, or any of its agents, servants, workmen and/or employees as predecessors in interest the defendants herein named. 10. During Plaintiff, ROBERT HARPSTER's entire working career and while working within the course and scope of his employment for Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, and/or its predecessors in interest the defendants herein named, Plaintiff, ROBERT HARPSTER, was injured due to the unsafe and inadequate working conditions. 11. This action arises under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.. 12. Throughout Plaintiff, ROBERT HARPSTER's employment, Plaintiff, ROBERT HARPSTER, while working within the scope of his employment for Defendants, NORFOLK SOUTHERN RAILWAY COMPANY and/or its predecessors in interest, the defendants herein named, as a trainman, was continuously and repeatedly required to perform repetitive, forceful and awkward motions utilizing his lower extremities which included excessive kneeling, squatting, stooping and bending; and was required to walk on uneven and unstable surfaces and to get on and off of moving equipment which caused the Plaintiff, ROBERT HARPSTER, to sustain severe and permanent injury to his lower extremities, including, but not limited to, his hips and knees. 13. Throughout his employment with Defendants, Plaintiff, ROBERT HARPSTER, was continuously unaware of the dangerous effects of exposing his lower extremities to repetitive, forceful and awkward motions. 14. Throughout his employment with Defendants, Plaintiff, ROBERT HARPSTER, was continuously unaware of the dangerous effects of excessive kneeling, bending, squatting, stooping and bending of the lower extremities. 15. Throughout his employment with Defendants, Plaintiff, ROBERT HARPSTER, was continuously unaware of the dangerous effects to his lower extremities from walking and working on uneven and unstable surfaces and the harmful effects of getting on and off of moving equipment. 16. Throughout his employment with Defendants, Plaintiff, ROBERT HARPSTER, was continuously unaware that any and all of the above mentioned exposures and/or conditions could cause severe and permanent injuries to his lower extremities. 17. Throughout Plaintiff, ROBERT HARPSTER's employment with Defendants, said Defendants knew, or in the exercise of proper diligence should have known, of the presence and existence of the aforementioned dangers within Plaintiff, ROBERT HARPSTER's working environment. 18. The injuries and damages to Plaintiff, ROBERT HARPSTER being complained of were directly and proximately caused by the negligence of the Defendants, their agents, servants or employees while acting within the nature and scope of their employment for the Defendants in the following respects: a. in violating the Federal Employers' Liability Act; b. in failing to provide Plaintiff, ROBERT HARPSTER, with a reasonably safe place to work; C. in requiring Plaintiff, ROBERT HARPSTER, to perform repetitive, forceful and awkward motions utilizing his lower extremities which also involved excessive kneeling, squatting, stooping and bending; d. in requiring Plaintiff, ROBERT HARPSTER, to repeatedly walk and work on dangerous, uneven, and unstable surfaces; e. in requiring Plaintiff, ROBERT HARPSTER, to get on and off of moving equipment; f. in failing to provide Plaintiff, ROBERT HARPSTER, with the proper protective equipment; g. in failing to warn Plaintiff, ROBERT HARPSTER, of the dangers posed by the aforementioned work activities; h. in failing to periodically inspect and/or test its workplace; i. in allowing unsafe practices to become standard practice; j. in failing to properly train, educate and/or warn Plaintiff of the hazards in the workplace; k. in failing to comply with existing federal and state statutes and safety regulations; 1. in failing to comply with its' own rules, work practices and procedures; M. in failing to provide Plaintiff, ROBERT HARPSTER, with adequate manpower to safely do his job; n. in failing to provide proper tools and equipment; o. in assigning Plaintiff, ROBERT HARPSTER, to work beyond his physical and medical capabilities; p. in failing to provide proper medical supervision and care; q. in failing to comply with State and Federal Safety Regulations, including OSHA standards; r. in failing to monitor the work place; S. in failing to take precautions to prevent repeated injuries to Plaintiff, ROBERT HARPSTER's extremities including his right and left hips, ligaments, bone and joints; t. in failing to provide a safe work place to work or provide for Plaintiff, ROBERT HARPSTER's safety when Defendants knew and were aware that the Plaintiff, ROBERT HARPSTER, had suffered injury to his right and left hips, lower back and knees, ligaments, bone and joints; U. in knowing and aware that the Plaintiff, ROBERT HARPSTER, had sustained injuries to his right and left hips, lower back, knees and joints; V. in failing to provide proper splints or braces; W. in failing to take any precautions to provide for Plaintiff, ROBERT HARPSTER's safety, thereby continually subjecting Plaintiff, ROBERT HARPSTER, to continuous excessive stress, repetitive motions and vibrations, causing injury to Plaintiff, ROBERT HARPSTER's right and left hips, lower back and knees in aggravation of these conditions after Defendants knew or should have known of Plaintiff, ROBERT HARPSTER's injuries; X. in continually requiring Plaintiff, ROBERT HARPSTER, to work and be exposed to the hazards stated above, thereby, directly and proximately causing Plaintiff, ROBERT HARPSTER's injuries. Y. in failing to adjust, alter, counter weigh or counter balance the tools and equipment; Z. in failing to employ or hire a trained ergonomist to test, monitor, educate and produce Plaintiff, ROBERT HARPSTER with a safe place to work; and aa. in failing to provide proper ballast and walking surface. 19. As a direct and proximate result of the aforementioned negligence of the Defendants or any of its agents, servants, workmen and/or employees, the Plaintiff, ROBERT HARPSTER, has suffered cumulative trauma and repetitive stress to his lower extremities, right and left hips, bones, ligaments and joints, which has resulted in the following damages and/or injuries, some or all of which maybe permanent; a. advanced DJD of left hip; b. moderate degenerative changes in the right hip; C. lateral epicondylitis on the right; left leg, hip and groin pain; d. right elbow pain; e. degenerative disc disease throughout the lumbar spine; f. left hip advanced end-stage DJD; g. left total hip replacement; h. pre-patellar bursitis of the left knee. 20. As a further direct and proximate result of the negligence and/or careless conduct of Defendants or any of its agents, servants, workmen and/or employees, Plaintiff, ROBERT HARPSTER, has in the past and may in the future sustain the following damages: a. loss of enjoyment of life; b. change of lifestyle; C. loss of wages and fringe benefits; d. loss of earning capacity; e. medical expenses; f. pain and suffering; g. mental anguish; h. personal financial loss; and i. continuing pain and disability. 21. Plaintiff, ROBERT HARPSTER, did not contribute to any of these injuries. 22. To the extent if any, the Plaintiff has a pre-existing condition affecting his back or lower extremities, the Plaintiff will show that such condition or conditions were aggravated by the conduct of the Defendants as described above. WHEREFORE, Plaintiff, ROBERT HARPSTER, respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, together with costs and disbursements of this action in an amount in excess of compulsory arbitration limits. JURY TRIAL DEMANDED BY: MALI{ F. McKENNA, ESQ. Attorneys for Plaintiff, ROBERT HARPSTER McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-6226 VERIFICATION I am the Plaintiff in this matter and am represented by counsel. I have furnished to my counsel factual information upon which the foregoing is based. To the extent that it is based on the factual information provided to counsel, I verify that those facts are true and correct to the best of my knowledge, information and belief However, the language is that of counsel and, to the extent that it goes beyond the factual information which I have provided to counsel. I have relied upon counsel in making this verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: S III //rA-I ROBERT HARPSTER b ? 4 -?Z`' t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, Plaintiff, V. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER'S INC., formally known as THE PENN CENTRAL CENTRAL CORPORATION, Individually and/or as Successor-in-interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY CIVIL ACTION NO.: 06.3 z2 Ypl/ TYPE OF PLEADING: PRAECIPE TO REINSTATE THE COMPLAINT FILED ON BEHALF OF: PLAINTIFF, ROBERT HARPSTER COUNSEL OF RECORD FOR THIS PARTY: MARK F. McKENNA, ESQUIRE PA I.D. # 30297 Defendants McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-6226 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER CIVIL DIVISION Plaintiff, NO.: GD 06-3724 v NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER'S INC., formally known as THE PENN CENTRAL CENTRAL CORPORATION, Individually and/or as Successor-in-interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY Defendants. PRAECIPE TO REINSTATE COMPLAINT TO: PROTHONOTARY Kindly reinstate the Complaint in regard to the above-captioned matter. Respectfully submitted, & ASSOCIATES, P.C. F. McKENNA, ESQUIRE ys for Robert Harpster C t- ? t 1a co IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER Plaintiff, v. CIVIL DIVISION 04-W(o NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER'S INC., formally known as THE PENN CENTRAL CENTRAL CORPORATION, Individually and/or as Successor-in-interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY Defendants. PRAECIPE TO REINSTATE COMPLAINT TO: PROTHONOTARY Kindly reinstate the Complaint in regard to the above-captioned matter. Respectfully submitted, McKENNA & ASSOCIATES, P.C. By:.._ Airk 'r kk MARK F. McKENNA, ESQ RE Attorneys for Robert Harpster r ??t v t; y? ?n N IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, CIVIL ACTION PLAINTIFF, VS. NO: 06-4016 - CIVIL TERM NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PRAECIPE FOR APPEARANCE PREMIER UNDERWRITER'S, INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, Individually and/or as Successor-in- interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY, DEFENDANTS Filed on behalf of Defendants, Consolidated Rail Corporation. American Premier Underwriters, Inc. Norfolk Southern Railway Company Counsel of Record for these Parties: Daniel J. Hampton, Esquire Pa. ID# 82456 BURNS, WHITE & HICKTON Firm # 828 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 JURY TRIAL DEMANDED t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ROBERT HARPSTER, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY, COMPANY, ET AL., DEFENDANTS. CIVIL DIVISION NO. 06-4016 - Civil Term PRAECIPE FOR APPEARANCE JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE TO: Curtis R. Long - Prothonotary Kindly enter my Appearance on behalf of Defendants, Norfolk Southern Railway Company, Consolidated Rail Corporation and American Premier Underwriters, Inc., with reference to the above-captioned matter. BURNS, WHITE & HICKTON By, aniel J. Hampt s ire Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that on this 12th day of October 2006, a copy of the within PRAECIPE FOR APPEARANCE was served via first class mail, postage prepaid on Counsel for Plaintiff: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 BURNS, WHITE & HICKTON By r Cam': IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, CIVIL ACTION PLAINTIFF, VS. NO: 06-4016 - CIVIL TERM NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN ANSWER AND NEW MATTER PREMIER UNDERWRITER'S, INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, Individually and/or as Successor-in- interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY, DEFENDANTS Filed on behalf of Defendants, Consolidated Rail Corporation. American Premier Underwriters, Inc. Norfolk Southern Railway Company Counsel of Record for these Parties: Daniel J. Hampton, Esquire Pa. ID# 82456 BURNS, WHITE & HICKTON Firm # 828 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ROBERT HARPSTER, PLAINTIFF, CIVIL DIVISION NO. 06-4016 VS. NORFOLK SOUTHERN RAILWAY, COMPANY, ET AL., DEFENDANTS. ANSWER AND NEW MATTER JURY TRIAL DEMANDED ANSWER AND NEW MATTER AND NOW COME Defendants, Norfolk Southern Railway Company, Consolidated Rail Corporation and American Premier Underwriter's Inc., by their attorneys Burns, White & Hickton and Daniel J. Hampton, Esquire, files the following Answer and New Matter to Plaintiffs Complaint: ANSWER 1. Admitted as to residence. 2. Admitted. 3. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 3. All said allegations are denied. 4. Admitted in part and denied in part. It is admitted that Consolidated Rail Corporation was a common carrier by rail between the periods April 1, 1976, and June 1, 1999. Prior to June 1, 1996, Consolidated Rail Corporation did not conduct any railroad 2 operations and did not conduct any business whatsoever in any areas other than the Detroit Metropolitan area and the Northern New Jersey and Southern New Jersey- Philadelphia areas. 5. The averments contained in Paragraph 5 of Plaintiffs Complaint are denied. It is specifically denied that American Premier Underwriters Inc., existed prior to October, 1978. It is further denied that American Premier Underwriters was ever a common carrier engaged in interstate transportation. To the contrary, American Premier Underwriters has never been a railroad nor engaged in interstate transportation, nor is it a successor in interest and/or liability to any other entity. 6. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 6 of Plaintiffs Complaint. All said allegations are denied. 7. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 7 of Plaintiffs Complaint. All said allegations are denied. 8. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 8 of Plaintiffs Complaint. All said allegations are denied. 9. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 9 of Plaintiffs Complaint. All said allegations are denied. 10. All of the allegations contained in Paragraph 10 of Plaintiff s Complaint are specifically denied in their entirety. 3 11. The allegations contained in Paragraph 11 of Plaintiff s Complaint constitute a conclusion of law to which no response is necessary. To the extent a response is deemed necessary, all of the allegations contained in Paragraph 11 of Plaintiffs Complaint are specifically denied in their entirety. 12. All of the allegations contained in Paragraph 12 of Plaintiffs Complaint are denied in their entirety. 13. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 13 of Plaintiffs Complaint. All said allegations are denied. 14. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 14 of Plaintiffs Complaint. All said allegations are denied. 15. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 15 of Plaintiffs Complaint. All said allegations are denied. 16. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 16 of Plaintiffs Complaint. All said allegations are denied. 17. All of the allegations contained in Paragraph 17 of Plaintiffs Complaint are denied in their entirety. 18. All of the allegations contained in Paragraph 18 of Plaintiffs Complaint, through and including subparagraphs (a) through (aa) are specifically denied in their entirety. 4 19. All of the allegations contained in Paragraph 19 of Plaintiffs Complaint, through and including subparagraphs (a) through (h) are specifically denied in their entirety. 20. All of the allegations contained in Paragraph 20 of Plaintiffs Complaint, through and including subparagraphs (a) through (i) are specifically denied in their entirety. 21. All of the allegations contained in Paragraph 21 of Plaintiffs Complaint are denied. 22. All of the allegations contained in Paragraph 22 of Plaintiffs Complaint are denied in their entirety. NEW MATTER By way of further response to the entirety of Plaintiff's Complaint, Defendants set forth the following New Matter: 23. Defendants believe that all of Plaintiffs claims are barred by applicable Statutes of Limitation. Accordingly, Defendants hereby plead all applicable Statutes of Limitation as a complete bar to the entirety of Plaintiffs claims. 24. While denying that Plaintiff sustained injuries and/or damages as alleged, if it would ultimately be proven that Plaintiff did sustain the damages and/or injuries in the fashion alleged, Defendants believe and therefore aver that Plaintiffs own contributory negligence may have and/or did contribute, in a substantial way, to the happening and/or occurrence of the alleged injuries. Accordingly, Defendants plead Plaintiffs contributory negligence in diminution of any award Plaintiff may ultimately receive. 25. While denying that Plaintiff sustained the damages as alleged, Defendants believe and therefore aver that any damages Plaintiff may ultimately be entitled to recover from these Defendants may or are possibly limited in scope by the provisions of the Federal Employer's Liability Act, and said recovery may be limited as to those damages specifically set forth therein. Accordingly, in the event said Act is applicable, all sections of Plaintiff's complaint seeking damages other than those provided for in the Federal Employer's Liability Act fail to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. Alternatively, all said sections of Plaintiff's complaint should be stricken. 26. Plaintiff's Complaint, as to these Defendants, fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 27. Prior to the initiation of the within litigation, the Perm Central Transportation Company did undergo proceedings in bankruptcy. Defendants, jointly and severally, believe and therefore aver that Plaintiffs claims are barred, in their entirety, as to Defendants, by reason of said bankruptcy and Defendants plead any and all conditions and/or terms of said bankruptcy of the Penn Central Transportation Company, including the Plan of Reorganization and the Confirmation Order entered therein, as a complete bar to the entirety of Plaintiff's claims as to these answering Defendants. Alternatively, Defendants plead a full discharge of all claims by reason of and/or pursuant to the bankruptcy of the Penn Central Transportation Company. 28. Insofar as Plaintiff's Complaint attempts to assert, explicitly or implicitly, that these answering Defendants are successors-in-interest to any other entity or entities, all said averments are specifically denied in their entirety, and it is affirmatively averred 6 that American Premier Underwriter's Inc. is an individual entity, formed pursuant to applicable bankruptcy act provisions, and is not, in any way, related to the Penn Central Transportation Company and/or any other entity and accordingly, is not a successor-in- interest to the liability of the Penn Central Transportation Company and/or any other entity. 29. Accordingly, Plaintiff s Complaint fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 30. Insofar as applicable, Defendants plead any and all Statutes of Limitation created by the Regional Rail Reorganization Act, as amended, and believe and therefore aver that Plaintiff s claims are barred by the specific Statutes of Limitation as contained in and established by the Regional Rail Reorganization Act of 1973, as amended. 31. Defendants plead all provisions of the Regional Rail Reorganization Act as a complete bar to the direct liability of any of these answering Defendants. 32. This Court lacks jurisdiction over the subject matter of the within litigation, insofar as same applies to Defendants, and/or lacks jurisdiction over the persons of American Premier Underwriter's Inc. and Consolidated Rail Corporation by reason of the bankruptcy of the Penn Central Transportation Company and/or the provisions of the Regional Rail Reorganization Act, as amended. 33. Consolidated Rail Corporation did not exist prior to April 1, 1976. 34. Accordingly, all sections of Plaintiffs Complaint seeking recovery for incidents, which occurred prior to April 1, 1976, fail to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 35. Defendants would further show that Plaintiffs alleged injuries and 7 damages were caused, in whole or in part, by pre-existing conditions, or other contributory or concurrent conditions or factors, including events occurring prior or subsequent to the occurrence made the basis of Plaintiff's claim against Defendants. 36. Plaintiff has fully released all claims to these answering Defendants. Defendants hereby plead all terms and conditions of a certain release agreement attached hereto and marked as Exhibit "A" and incorporated herein and plead a full release and discharge of all claims pursuant thereto. WHEREFORE, Defendants, Norfolk Southern Railway Company, Consolidated Rail Corporation and American Financial Group, Inc., specifically deny that they are indebted to any other party of record and demands that the Plaintiff's action be dismissed and that they be permitted to recover the costs of defending this action as per the terms of this, their Answer. JURY TRIAL DEMANDED. Respectfully submitted, BURNS, WHITE & HICKTON By 4elani J. Hamp , Es uire Attorney for D endants, Norfolk Southern Railway Company Consolidated Rail Corporation and American Premier Underwriters, Inc. 8 NOTICE TO PLEAD TO: PLAINTIFF You are hereby notified to file a writer reply to the enclosed New Matter within twenty (20) days of service hereof or a judgment maybe entered against you. By Attorney for 9 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of October 2006, a copy of the within ANSWER AND NEW MATTER was served via first class mail, postage prepaid on Counsel for Plaintiff: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 BURNS, WHITE & HICKTON B L Daniel J. Ham n, quire Attorney for efendants 10 VERIFICATION I verify that the averments of fact made in the foregoing ANSWER AND NEW MATTER are true and correct based upon my personal knowledge, information and belief. I understand that the averments of fact in said document are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. L. Keith Lambert Manager Occupational Claims U t7 t`f / i Peirce CT 310 NS RELEASE AGREEMENT KNOW ALL MEN BY THESE PRESENTS THAT I, Robert Harpster, on behalf of r)Kn myself, my heirs, personal representatives and assigns ("THE UNDERSIGNED"), this day of Yff , D, enter into this RELEASE AGREEMENT with Norfolk Southern Railway Company, CSX Transportation, Inc., Consolidated Rail Corporation, American Financial Group, Inc., formerly known as American Premier Underwriters, Inc., formerly known as The Penn Central Corporation, Pennsylvania Truck Lines, Inc., Penn Central Transportation Company, Pennsylvania Railroad, New York Central Railroad, Erie- Lackawanna, Inc. and Lehigh Valley Railroad Company to the same extent as if expressly named herein, their respective parents, subsidiaries and affiliated companies, their leased and operated lines, and the respective predecessors, successors, assignees, lessors, officers, directors, agents and employees of the aforesaid released parties, past and present, as well as their heirs and legal representatives ("RELEASEE"). WHEREAS, a claim or action has been asserted by or on behalf of THE UNDERSIGNED against RELEASEE alleging that THE UNDERSIGNED was exposed to excessive and harmful repetitive motion, strain, vibration of any type or intensity and/or cumulative trauma due to the equipment and methods with which he/she performed his/her work for the RELEASEE, and that said excessive and harmful repetitive motion, strain, vibration and/or cumulative trauma caused THE UNDERSIGNED to suffer from bilateral carpal tunnel syndrome; (hereinafter referred to as "Repetitive Strain Injury"), including any disorder of any type or origin or any condition, illness or injury resulting therefrom or relating thereto. WHEREAS, THE UNDERSIGNED and RELEASEE desire to enter into a full and final settlement and discharge of all claims or actions against RELEASEE as described herein. NOW, Ten Thousand Dollars ($10.000.00), paid to me by or on behalf of RELEASEE, the sufficiency and receipt of which is hereby acknowledged, does hereby release and forever discharge RELEASEE from all legal liability for personal injuries as set forth herein, known or unknown, foreseen or unforeseen, including claims, causes of action, actions, verdicts, judgments, or awards of money damages, costs, fees, and expenses incurred, and demands for monetary compensation of any nature, which THE UNDERSIGNED has or claims 1 to be entitled by reason of his/her alleged Repetitive Strain Injury, its progression and/or consequences, any future damages, general or special, that THE UNDERSIGNED may incur in an attempt to alleviate or cure his/her alleged Repetitive Strain Injury, including surgery or surgeries, as well as correction of any conditions relating to his/her Repetitive Strain Injury, and any increased risk of contracting any physical disorder related thereto, as set forth in Docket Number 96-C-163G, filed in Circuit Court, Hancock County, WV, Robert Harpster vs. Consolidated Rail Corporation, Defendant, which action THE UNDERSIGNED agrees shall be dismissed with prejudice. THE UNDERSIGNED acknowledges that his/her Repetitive Strain Injury may be permanent and/or may naturally progress and/or may become permanently disabling in the future; recovery therefrom is uncertain; and future medical treatment, including surgery, may be necessary in an attempt to alleviate or treat said Repetitive Strain Injury. By entering into this Release Agreement, THE UNDERSIGNED acknowledges that no representations about the nature and extent of his present or future condition, disabilities or damages made by any physician, attorney or agent of those hereby released, nor any representations regarding the nature and extent of legal liability of those hereby released, have induced him to make this settlement; that he relies wholly upon his own judgment, belief, and knowledge of the nature and extent of his injuries, including the permanency and the possibility of progression of such injuries; and that the possible future effects of THE UNDERSIGNED'S Repetitive Strain Injury are specifically bargained for herein, included, and released in exchange for the payment of consideration stated herein. Other provisions of this RELEASE AGREEMENT notwithstanding, this RELEASE AGREEMENT is not intended to and does not release any claim THE UNDERSIGNED may have in the future for a solely new and distinct railroad employment related injury. It is further understood and agreed that THE UNDERSIGNED agrees to indemnify and hold harmless RELEASEE of and from any and all liability, actions, judgments, costs, expenses and counsel fees arising from or in any way connected with subrogation claims or liens for any compensation or medical payments due or claimed to be due or paid under any law (state or federal), regulation or contract, and from all losses, claims, liabilities, actions, causes of action, judgments, verdicts, awards, demands, costs, fees or expenses of whatsoever kind or nature arising as a result of, or pertaining in any way to the Repetitive Strain Injury released herein. 2 It is understood and agreed that any issue concerning the interpretation of this RELEASE AGREEMENT or its effect upon the parties hereto shall be governed by federal law. THE UNDERSIGNED further specifically agrees to the introduction into evidence of this RELEASE AGREEMENT at any trial, hearing, or inquiry conducted subsequent to the date of execution hereof. THE UNDERSIGNED understands, agrees, and acknowledges that the payment referred to herein is in compromise of a disputed claim and shall not be construed as an admission of liability on the part of RELEASEE, since liability is expressly denied. THE UNDERSIGNED further acknowledges and agrees that certain "liens" are owed and outstanding, that the sums hereinafter identified, which may not be final and are subject to change, will be subtracted from the total amount paid as consideration for this RELEASE AGREEMENT as follows: Gross Settlement Amount: $10.000.00 Less: (1) Railroad Retirement Board: (2) Supplemental Sickness Benefits: Net Settlement Amount: $ 10.000.00 Draft No. It is further understood and agreed that this is the complete RELEASE AGREEMENT, and that there are no written or oral understandings or agreements, directly or indirectly connected with this RELEASE AGREEMENT that are not incorporated herein. THE UNDERSIGNED declares that he/she has executed this RELEASE AGREEMENT upon the advice and approval of his/her counsel, Robert Peirce, Esquire, of the firm Peirce, Raimond, Osterhout, Wade, Carlson & Coulter, that he/she knows and understands the contents hereof and signs the same as his/her own free act with full knowledge that the effect hereof shall be such as to extinguish, and he/she hereby declares extinguished, now and forever, any and all claims described in this RELEASE AGREEMENT. THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS ENTIRE RELEASE AGREEMENT AND UNDERSTANDS ITS TERMS, AND THAT BY SIGNING THIS RELEASE AGREEMENT HAS RELEASED HIS/HER RIGHTS REFERENCED HEREIN AGAINST RELEASEE AND ITS INSURERS. 3 IN WITNESS WHEREOF, I have hereunto set forth my hand and seal this day of Qygm intending to be legally bound hereby. WITNESSES TO SIGNATURE: Name Address FILE NO. HARPSR1126960001 nslcsx 8-99 a?? U (SEAL) Robert Harpster SS# l&U 3 6 3 ( Attorney for Robert / arpster Q?m LcaA7&to-,-Q? POA ffl Address 4 r,? _ , ?7 ., ---i r-; t": - -`! -? ? ?? C"1 ? : .?-y __.._ I -._ _. ;. f:; - i_ 1 ., ? i _? .1:3 t: " "'? SHERIFF'S RETURN - OUT OF COUNTY CASE NO:-2006-04016 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARPSTER ROBERT VS NORFOLK SOUTHERN RAILWAY CO R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: NORFOLK SOUTHERN RAILWAY COMPANY but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA County, Pennsylvania, to serve the within COMPLAINT & NOTICE On October 2006 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: So answer Docketing 18.00 Out of County 9.00 Surcharge 10.00 R Thomas line Postage 5.64 Sheriff of Cumberland County Dep Philadelphia 172.00 214.64 ? /o??b?U` 10/03/2006 MCKENNA & ASSOCIATES Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO:`2006-04016 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARPSTER ROBERT VS NORFOLK SOUTHERN RAILWAY CO R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT CONSOLIDTED RAIL CORPORATION but was unable to locate Them to wit: in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA serve the within COMPLAINT & NOTICE County, Pennsylvania, to On October 3rd , 2006 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: So ans Docketing 6.00 Out of County .00 l Surcharge 10.00 Thomas Kline .00 Sheriff of Cumberland County 00 16.00 Jv /1410 - 10/03/2006 MCKENNA & ASSOCIATES Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO:' 2006-04016 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARPSTER ROBERT VS NORFOLK SOUTHERN RAILWAY CO R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: AMERICAN PREMIER UNDERWRITERS INC FKA THE PENN CENTRAL CORP but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA serve the within COMPLAINT & NOTICE County, Pennsylvania, to On October 3rd , 2006 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: So answe Docketing 6.00 Out of County .00 Surcharge 10.00 R Thomas K ine .00 Sheriff of Cumberland County .00 16.00 ? 101,v106 (,, 10/03/2006 MCKENNA & ASSOCIATES Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania Robert Harpster VS. Norfolk Southern Railway Company et al SERVE: Norfolk Southern Railway Canpany No. 06-4016 civil , occ)(o Now, , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia deputation being made at the request and risk of the Plaintiff. County to execute this Writ, this Sheriff of Cumberland County, PA Affidavit of Service Now, 20, at v f • o'clock a-, M. served the within am,4- upon at Ci'I, -1210 by handing to a copy of the original I lr?_Uh? b1 ,caJ- and made known to L?,yl the contents thereof. So answers, COMMONWEALTH OF PENNSYLVANIA NOTARIAL. SEAL. MELISSA H. KAPLAN, Notary Public . City of Phil=adelphia. Phila. County „,-MY-Cay1rrii lion Expires March 29, 2008 Sworn and subscrib before me this day ooat ,, a, 1 o-r-q ?-ennui fC 1?i ; ?? County, PA VVW COSTS SERVICE $ 0MILEAGE AFFIDAVIT In The Curt of Common ,leas of Cumberland County, Pennsylvania Robert Harpster vs. Norfolk Southern Railway Company et al SERVE: Consolidated Rail Corporation No. 06-4016 civil Now, , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. aCAc Vt V ! ?r Affidavit 4 Service Nowat 6.00 o'clock d - served e within _r Un upon l? 1 at by handing to a and made known to Sheriff of Cumberland County, PA not 0 copy of the original i s1w-ed-- the contents thereof. So answers, COMMONWEALTH OF PFNNS nNANIA NOTARIAL A!' MELISSA H. KA.P?_AN, Notary Public City of Philadelphia, Phila. County Wtimmission Expires March 29, 2008 Sworn and subscribe before me this 2kStday o V MI G1- .moo {/ County, PA ?ro eQ v COSTS SERVICE $ MILEAGE AFFIDAVIT $ r. In The Court of Common Pleas of Cumberland County, Pennsylvania Robert Harpster VS. Norfolk Southern Railway Company et al SERVE: American Premier Underwriters Inc No. 06-4016 civil Std } C, a00(- Now, - 04; Q-T-2906 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia deputation being made at the request and risk of the Plaintiff. County to execute this Writ, this Sheriff of Cumberland County, PA Affidavit of Service Now, i , 20 0, at 'q Wo'clock d- M. served the within C1z. ?l aL'vve upon tn4O 4/i' C61* 1 `rrtr .(-w at "5T, 5k (Uo by handing to6ahqAf 5D v?' y l-- v a C copy of the original 16± l(_Q_n? and made known to the contents thereof. So answers, OMMONWEA'-'_TFFi OF PENNSYLVANIA NOTARIAL SEAL MELISSA F1 KAPLAN, Notary Public Cite n` ?'hi;del?f,?, Phila County M GQfitiFi100ri fry irt? MArch 29,2008 Sworn and subscribe before me this' day o , 200.0 -6Fof County, PA ?70 V &- COSTS SERVICE $ MILEAGE AFFIDAVIT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER's INC., formally known as THE PENN CENTRAL TRANSPORTATIONCOMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY RAILROAD COMPANY CIVIL ACTION NO.: 06-4016 Civil Term TYPE OF PLEADING: PLAINTIFF'S REPLY TO NEW MATTER FILED ON BEHALF OF: PLAINTIFF, ROBERT HARPSTER COUNSEL OF RECORD FOR THIS PARTY: Defendants MARK F. McKENNA, ESQUIRE PA I.D. # 30297 McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-6226 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, Plaintiff, vs. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER's INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY RAILROAD COMPANY Defendants. CIVIL ACTION No. 06-4016-Civil Term PLAINTIFF'S REPLY TO NEW MATTER COMES NOW, the Plaintiff, ROBERT HARPSTER, by counsel, and files the following Reply to New Matter and avers as follows: RESPONSE TO NEW MATTER 23. Paragraph 23, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 24. Paragraph 24, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 25. Paragraph 25, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 26. Paragraph 26, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 27. Paragraph 27, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 28. Paragraph 28, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 29. Paragraph 29, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 30. Paragraph 30, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 31. Paragraph 31, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 32. Paragraph 32, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 33. Paragraph 33, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 34. Paragraph 34, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 35. Paragraph 35, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 36. Paragraph 36, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. WHEREFORE, Plaintiff, ROBERT HARPSTER, respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendants, together with costs and disbursements of this action in an amount in excess of compulsory arbitration limits. , P.C. '. McKENNA, ESQUIRE for Plaintiff VERIFICATION I, Mark F. McKenna, Esquire, counsel for Plaintiff herein, deposes and says that I am counsel for Plaintiff in this matter; that I am authorized to make this Verification on behalf of Plaintiff; that the facts set forth in the foregoing Reply to New Matter are true and correct, not of my own knowledge, but from information supplied to me by Plaintiff, that the purposes of this Verification are to expedite the litigation; and that a Verification by Plaintiff will be furnished if requested. This statement is made subject to the penalties of 18Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: CERTIFICATE OF SERVICE I hereby certify that on the _2Yl-h of October, 2007, a copy of the foregoing Plaintiff's Reply to New Matter was mailed, by United States Mail, postage paid, to Daniel J. Hampton, Esquire, Burns, White & Hickton, Four Northshore Center, 106 Isabella Street, Pittsburgh, Pennsylvania 15212. McKENNA & ASSOCIATES, P.C. BY: NO-rk r' k )C MARK F. McKENNA, ESQ IRE taJ :-G IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, CIVIL ACTION PLAINTIFF, vs. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER'S, INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, Individually and/or as Successor-in- interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL ; RAILROAD, LEHIGH VALLEY, yvI? NO: 06-3424- CIVIL TERM PRAECIPE FOR APPEARANCE DEFENDANTS. Filed on behalf of Defendants, Consolidated Rail Corporation. American Premier Underwriters, Inc. Norfolk Southern Railway Company Counsel of Record for these Parties: Nicole E. Bazzy, Esquire Pa. ID# 89030 BURNS, WHITE & HICKTON Firm # 828 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY, ) Individually and as a Successor-in-) Interest-or-liability to any other ) Railroad, including ) CONSOLIDATED RAIL CORPORATION; AND ) AMERICAN PREMIER UNDERWRITER'S INC.) formally known as THE PENN CENTRAL ) CENTRAL CORPORATION, Individually ) and/or as Successor-in-interest-or-) liability to any other entity, PENN) CENTRAL TRANSPORTATION COMPANY, ) PENNSYLVANIA RAILROAD, NEW YORK ) CENTRAL RAILROAD, LEHIGH VALLEY ) DEFENDANTS, CIVIL DIVISION yo1? NO : 0 6 - 3`,6n PRAECIPE FOR APPEARANCE JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE TO: Curtis R. Long - Prothonotary Kindly enter my Appearance on behalf of Defendants, NORFOLK SOUTHERN RAILWAY COMPANY, CONSOLIDATED RAIL CORPORATION AND AMERICAN PREMIER UNDERWRITER'S INC., with reference to the above-captioned matter. BURNS, WHITE & HICKTON BY X-0,? ,A Nicole E. Bazzy, EW4 Pa. ID#89030 Attorney for Defendants, Norfolk Southern Railway Company, Consolidated Rail Corporation and American Premier Underwriters, Inc. CERTIFICATE OF SERVICE I hereby certify that on this 14th day of November 2007, a copy of the within PRAECIPE FOR APPEARANCE was served on all counsel of record, via first class mail postage prepaid: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 By I_ N cole E. Bazzy, Esq i e Attorney for Defendants a ?? ;?'; ? ?cr' ? n1 ?Q ? ? ? ? ? ? . - ?,?" , c? IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, CIVIL ACTION PLAINTIFF, VS. NO: 06-3 44- CIVIL TERM NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor-in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN ANSWER AND NEW MATTER PREMIER UNDERWRITER'S, INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, Individually and/or as Successor-in- interest-or-liability to any other entity, PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY, DEFENDANTS Filed on behalf of Defendants, Consolidated Rail Corporation. American Premier Underwriters, Inc. Norfolk Southern Railway Company Counsel of Record for these Parties: Nicole E. Bazzy, Esquire Pa. ID# 89030 BURNS, WHITE & HICKTON Firm # 828 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ROBERT HARPSTER, PLAINTIFF, CIVIL DIVISION /6 NO. 06-3? VS. NORFOLK SOUTHERN RAILWAY, COMPANY, ET AL., DEFENDANTS. ANSWER AND NEW MATTER JURY TRIAL DEMANDED ANSWER AND NEW MATTER AND NOW COME Defendants, Norfolk Southern Railway Company, Consolidated Rail Corporation and American Premier Underwriter's Inc., by their attorneys Burns, White & Hickton and Nicole E. Bazzy, Esquire, files the following Answer and New Matter to Plaintiffs Complaint: ANSWER 1. Admitted as to residence. 2. Admitted. 3. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 3. All said allegations are denied. 4. Admitted in part and denied in part. It is admitted that Consolidated Rail Corporation was a common carrier by rail between the periods April 1, 1976, and June 1, 1999. Prior to June 1, 1996, Consolidated Rail Corporation did not conduct any railroad 2 operations in any areas other than the Detroit Metropolitan area and the Northern New Jersey and Southern New Jersey-Philadelphia areas. 5. The averments contained in Paragraph 5 of Plaintiffs Complaint are denied. It is specifically denied that American Premier Underwriters Inc., existed prior to October, 1978. It is further denied that American Premier Underwriters was ever a common carrier engaged in interstate transportation. To the contrary, American Premier Underwriters has never been a railroad nor engaged in interstate transportation, nor is it a successor in interest and/or liability to any other entity. 6. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 6 of Plaintiffs Complaint. All said allegations are denied. 7. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 7 of Plaintiffs Complaint. All said allegations are denied. 8. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 8 of Plaintiffs Complaint. All said allegations are denied. 9. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 9 of Plaintiffs Complaint. All said allegations are denied. 10. All of the allegations contained in Paragraph 10 of Plaintiff's Complaint are specifically denied in their entirety. 3 11. The allegations contained in Paragraph 11 of Plaintiff's Complaint constitute a conclusion of law to which no response is necessary. To the extent a response is deemed necessary, all of the allegations contained in Paragraph 11 of Plaintiff's Complaint are specifically denied in their entirety. 12. All of the allegations contained in Paragraph 12 of Plaintiffs Complaint are denied in their entirety. 13. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 13 of Plaintiffs Complaint. All said allegations are denied. 14. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 14 of Plaintiffs Complaint. All said allegations are denied. 15. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 15 of Plaintiffs Complaint. All said allegations are denied. 16. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 16 of Plaintiffs Complaint. All said allegations are denied. 17. All of the allegations contained in Paragraph 17 of Plaintiffs Complaint are denied in their entirety. 18. All of the allegations contained in Paragraph 18 of Plaintiffs Complaint, through and including subparagraphs (a) through (aa) are specifically denied in their entirety. 4 19. All of the allegations contained in Paragraph 19 of Plaintiffs Complaint, through and including subparagraphs (a) through (h) are specifically denied in their entirety. 20. All of the allegations contained in Paragraph 20 of Plaintiffs Complaint, through and including subparagraphs (a) through (i) are specifically denied in their entirety. 21. All of the allegations contained in Paragraph 21 of Plaintiffs Complaint are denied. 22. All of the allegations contained in Paragraph 22 of Plaintiffs Complaint are denied in their entirety. NEW MATTER By way of further response to the entirety of Plaintiff's Complaint, Defendants set forth the following New Matter: 23. Defendants believe that all of Plaintiffs claims are barred by applicable Statutes of Limitation. Accordingly, Defendants hereby plead all applicable Statutes of Limitation as a complete bar to the entirety of Plaintiffs claims. 24. While denying that Plaintiff sustained injuries and/or damages as alleged, if it would ultimately be proven that Plaintiff did sustain the damages and/or injuries in the fashion alleged, Defendants believe and therefore aver that Plaintiffs own contributory negligence may have and/or did contribute, in a substantial way, to the happening and/or occurrence of the alleged injuries. Accordingly, Defendants plead Plaintiffs contributory negligence in diminution of any award Plaintiff may ultimately receive. 5 25. While denying that Plaintiff sustained the damages as alleged, Defendants believe and therefore aver that any damages Plaintiff may ultimately be entitled to recover from these Defendants may or are possibly limited in scope by the provisions of the Federal Employer's Liability Act, and said recovery may be limited as to those damages specifically set forth therein. Accordingly, in the event said Act is applicable, all sections of Plaintiff's complaint seeking damages other than those provided for in the Federal Employer's Liability Act fail to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. Alternatively, all said sections of Plaintiff's complaint should be stricken. 26. Plaintiff's Complaint, as to these Defendants, fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 27. Prior to the initiation of the within litigation, the Penn Central Transportation Company did undergo proceedings in bankruptcy. Defendants, jointly and severally, believe and therefore aver that Plaintiffs claims are barred, in their entirety, as to Defendants, by reason of said bankruptcy and Defendants plead any and all conditions and/or terms of said bankruptcy of the Penn Central Transportation Company, including the Plan of Reorganization and the Confirmation Order entered therein, as a complete bar to the entirety of Plaintiff's claims as to these answering Defendants. Alternatively, Defendants plead a full discharge of all claims by reason of and/or pursuant to the bankruptcy of the Penn Central Transportation Company. 28. Insofar as Plaintiff's Complaint attempts to assert, explicitly or implicitly, that these answering Defendants are successors-in-interest to any other entity or entities, all said averments are specifically denied in their entirety, and it is affirmatively averred 6 that American Premier Underwriter's Inc. is an individual entity, formed pursuant to applicable bankruptcy act provisions, and is not, in any way, related to the Penn Central Transportation Company and/or any other entity and accordingly, is not a successor-in- interest to the liability of the Penn Central Transportation Company and/or any other entity. 29. It is specifically denied that Norfolk Southern Railway Company is a successor-in-interest-or-liability to Consolidated Rail Corporation. 30. Accordingly, Plaintiff s Complaint fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 31. Insofar as applicable, Defendants plead any and all Statutes of Limitation created by the Regional Rail Reorganization Act, as amended, and believe and therefore aver that Plaintiff s claims are barred by the specific Statutes of Limitation as contained in and established by the Regional Rail Reorganization Act of 1973, as amended. 32. Defendants plead all provisions of the Regional Rail Reorganization Act as a complete bar to the direct liability of any of these answering Defendants. 33. This Court lacks jurisdiction over the subject matter of the within litigation, insofar as same applies to Defendants, and/or lacks jurisdiction over the persons of American Premier Underwriter's Inc. and Consolidated Rail Corporation by reason of the bankruptcy of the Penn Central Transportation Company and/or the provisions of the Regional Rail Reorganization Act, as amended. 34. Consolidated Rail Corporation did not exist prior to April 1, 1976. 7 35. Accordingly, all sections of Plaintiff's Complaint seeking recovery for incidents, which occurred prior to April 1, 1976, fail to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 36. Defendants would further show that Plaintiff's alleged injuries and damages were caused, in whole or in part, by pre-existing conditions, or other contributory or concurrent conditions or factors, including events occurring prior or subsequent to the occurrence made the basis of Plaintiff's claim against Defendants. 37. Plaintiff has fully released all claims to these answering Defendants. Defendants hereby plead all terms and conditions of a certain release agreement attached hereto and marked as Exhibit "A" and incorporated herein and plead a full release and discharge of all claims pursuant thereto. WHEREFORE, Defendants, Norfolk Southern Railway Company, Consolidated Rail Corporation and American Premier Underwriter's Inc., specifically deny that they are indebted to any other party of record and demands that the Plaintiff's action be dismissed and that they be permitted to recover the costs of defending this action as per the terms of this, their Answer. JURY TRIAL DEMANDED. Respectfully submitted, BURNS, WHITE & HICKTON By Nicole E. Bazzy, Esquire P61 A C?/7 Attorney for Defendants, Norfolk Southern Railway Company Consolidated Rail Corporation and American Premier Underwriters, Inc. 8 NOTICE TO PLEAD TO: PLAINTIFF You are hereby notified to file a written reply to the enclosed New Matter within twenty (20) days of service hereof or a judgment maybe entered against you. By icole E. Bazzy, Esquire Attorney for Defendants 9 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of November 2007, a copy of the within ANSWER AND NEW MATTER was served via first class mail, postage prepaid on Counsel for Plaintiff: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 BURNS, WHITE & HICKTON By 2L??Z /- Nicole E. Bazzy, Esquire Attorney for Defendants 10 VERIFICATION I verify that the averments of fact made in the foregoing ANSWER AND NEW MATTER are true and correct based upon my personal knowledge, information and belief. I understand that the averments of fact in said document are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. L. Keit La ert Manager, Occupational Claims v ri rr Peirce CT 310 NS RELEASE AGREEMENT KNOW ALL MEN BY THESE PRESENTS THAT I, Robert Harpster, on behalf of myself, my heirs, personal representatives and assigns ("THE UNDERSIGNED"), this day of MOW, , enter into this RELEASE AGREEMENT with Norfolk Southern Railway Company, CSX Transportation, Inc., Consolidated Rail Corporation, American Financial Group, Inc., formerly known as American Premier Underwriters, Inc., formerly known as The Penn Central Corporation, Pennsylvania Truck Lines, Inc., Penn Central Transportation Company, Pennsylvania Railroad, New York Central Railroad, Erie- Lackawanna, Inc. and Lehigh Valley Railroad Company to the same extent as if expressly named herein, their respective parents, subsidiaries and affiliated companies, their leased and operated lines, and the respective predecessors, successors, assignees, lessors, officers, directors, agents and employees of the aforesaid released parties, past and present, as well as their heirs and legal representatives ("RELEASEE"). WHEREAS, a claim or action has been asserted by or on behalf of THE UNDERSIGNED against RELEASEE alleging that THE UNDERSIGNED was exposed to excessive and harmful repetitive motion, strain, vibration of any type or intensity and/or cumulative trauma due to the equipment and methods with which he/she performed his/her work for the RELEASEE, and that said excessive and harmful repetitive motion, strain, vibration and/or cumulative trauma caused THE UNDERSIGNED to suffer from bilateral carpal tunnel syndrome; (hereinafter referred to as "Repetitive Strain Injury"), including any disorder of any type or origin or any condition, illness or injury resulting therefrom or relating thereto. WHEREAS, THE UNDERSIGNED and RELEASEE desire to enter into a full and final settlement and discharge of all claims or actions against RELEASEE as described herein. NOW, Ten Thousand Dollars ($10.000.00), paid to me by or on behalf of RELEASEE, the sufficiency and receipt of which is hereby acknowledged, does hereby release and forever discharge RELEASEE from all legal liability for personal injuries as set forth herein, known or unknown, foreseen or unforeseen, including claims, causes of action, actions, verdicts, judgments, or awards of money damages, costs, fees, and expenses incurred, and demands for monetary compensation of any nature, which THE UNDERSIGNED has or claims 1 to be entitled by reason of his/her alleged Repetitive Strain Injury, its progression and/or consequences, any future damages, general or special, that THE UNDERSIGNED may incur in an attempt to alleviate or cure his/her alleged Repetitive Strain Injury, including surgery or surgeries, as well as correction of any conditions relating to his/her Repetitive Strain Injury, and any increased risk of contracting any physical disorder related thereto, as set forth in Docket Number 96-C-163G, filed in Circuit Court, Hancock County, WV, Robert Harpster vs. Consolidated Rail Corporation, Defendant, which action THE UNDERSIGNED agrees shall be dismissed with prejudice. THE UNDERSIGNED acknowledges that his/her Repetitive Strain Injury may be permanent and/or may naturally progress and/or may become permanently disabling in the future; recovery therefrom is uncertain; and future medical treatment, including surgery, may be necessary in an attempt to alleviate or treat said Repetitive Strain Injury. By entering into this Release Agreement, THE UNDERSIGNED acknowledges that no representations about the nature and extent of his present or future condition, disabilities or damages made by any physician, attorney or agent of those hereby released, nor any representations regarding the nature and extent of legal liability of those hereby released, have induced him to make this settlement; that he relies wholly upon his own judgment, belief, and knowledge of the nature and extent of his injuries, including the permanency and the possibility of progression of such injuries; and that the possible future effects of THE UNDERSIGNED'S Repetitive Strain Injury are specifically bargained for herein, included, and released in exchange for the payment of consideration stated herein. Other provisions of this RELEASE AGREEMENT notwithstanding, this RELEASE AGREEMENT is not intended to and does not release any claim THE UNDERSIGNED may have in the future for a solely new and distinct railroad employment related injury. It is further understood and agreed that THE UNDERSIGNED agrees to indemnify and hold harmless RELEASEE of and from any and all liability, actions, judgments, costs, expenses and counsel fees arising from or in any way connected with subrogation claims or liens for any compensation or medical payments due or claimed to be due or paid under any law (state or federal), regulation or contract, and from all losses, claims, liabilities, actions, causes of action, judgments, verdicts, awards, demands, costs, fees or expenses of whatsoever kind or nature arising as a result of, or pertaining in any way to the Repetitive Strain Injury released herein. 2 It is understood and agreed that any issue concerning the interpretation of this RELEASE AGREEMENT or its effect upon the parties hereto shall be governed by federal law. THE UNDERSIGNED further specifically agrees to the introduction into evidence of this RELEASE AGREEMENT at any trial, hearing, or inquiry conducted subsequent to the date of execution hereof. THE UNDERSIGNED understands, agrees, and acknowledges that the payment referred to herein is in compromise of a disputed claim and shall not be construed as an admission of liability on the part of RELEASEE, since liability is expressly denied. THE UNDERSIGNED further acknowledges and agrees that certain "liens" are owed and outstanding, that the sums hereinafter identified, which may not be final and are subject to change, will be subtracted from the total amount paid as consideration for this RELEASE AGREEMENT as follows: Gross Settlement Amount: $ 10.000.00 Less: (1) Railroad Retirement Board: (2) Supplemental Sickness Benefits: Net Settlement Amount: $ 10.000.00 Draft No. It is further understood and agreed that this is the complete RELEASE AGREEMENT, and that there are no written or oral understandings or agreements, directly or indirectly connected with this RELEASE AGREEMENT that are not incorporated herein. THE UNDERSIGNED declares that he/she has executed this RELEASE AGREEMENT upon the advice and approval of his/her counsel, Robert Peirce, Esquire, of the firm Peirce, Raimond, Osterhout, Wade, Carlson & Coulter, that he/she knows and understands the contents hereof and signs the same as his/her own free act with full knowledge that the effect hereof shall be such as to extinguish, and he/she hereby declares extinguished, now and forever, any and all claims described in this RELEASE AGREEMENT. THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS ENTIRE RELEASE AGREEMENT AND UNDERSTANDS ITS TERMS, AND THAT BY SIGNING THIS RELEASE AGREEMENT HAS RELEASED HIS/HER RIGHTS REFERENCED HEREIN AGAINST RELEASEE AND ITS INSURERS. 3 IN WITNESS WHEREOF, I have hereunto set forth my hand and seal this day womw P"-, of , intending to be legally bound hereby. X-J- U "j,0tSEAL) Robert Harpster SSA / Iv U 6 3 ?__ WITNESSES TO SIGNATURE: Name -25CY3cSUA ?-?auen K, 6A Address FILE NO. HARPSR112696000I ns/csx 8-99 k Attorney for Robert arpster ??co rain Address 4 n cn ? , c? I t DBE a , ;Q1A; c"Q{0 e . sly 0.1 9: 5 7 CUB 0 wAirD COUNPie PE -'1l. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ROBERT HARPSTER, Plaintiff, vs. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor- in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER's INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY RAILROAD COMPANY, Defendant, CIVIL DIVISION NO. 06-4016 TYPE OF PLEADING: PRAECIPE TO SETTLE AND DISCONTINUE FILED ON BEHALF OF: PLAINTIFF, ROBERT HARPSTER COUNSEL OF RECORD FOR THIS PARTY: MARK F. McKENNA, ESQUIRE PA ID #30927 MCK.ENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-6226 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HARPSTER, CIVIL DIVISION Plaintiff, NO. 06-4016 vs. NORFOLK SOUTHERN RAILWAY COMPANY, Individually and as a Successor- in-interest-or-liability to any other railroad, including CONSOLIDATED RAIL CORPORATION; and AMERICAN PREMIER UNDERWRITER's INC., formally known as THE PENN CENTRAL TRANSPORTATION COMPANY, PENNSYLVANIA RAILROAD, NEW YORK CENTRAL RAILROAD, LEHIGH VALLEY RAILROAD COMPANY, Defendant, PRAECIPE TO SETTLE AND DISCONTINUE TO PROTHONOTARY: Kindly settle and discontinue the above-captioned matter and mark the docket accordingly. Respectfully submitted, By: MARK F. McKENNA, ESQUIRE Attorney for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Praecipe to Settle and Discontinue was sent by ordinary U.S. first class mail, postage prepaid, to the following on this 0 day of September, 2010: Nicole E. Bazzy BURNS WHITE Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 B MARK F. McKENNA, ESQUIRE Attorney for Plaintiff