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HomeMy WebLinkAbout06-5016JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiffs V. : IN THE CUUI<r OF CUMMUA YLEAa : CUMBERLAND COUNTY, PENNSYLVANIA NO. OL - .56/ b 0"'6 L CIVIL ACTION - LAW GORDON PANILAITIS AND MARYANN BRICKER, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE PA 17013 (800) 990-9108 Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 I.D. #30965 Date: 8/28/06 Attorney for Plaintiffs JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. V. GORDON PANILAITIS AND MARYANN BRICKER, Defendants CIVIL ACTION - LAW NOTICE LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demands. y la notification. Usted debe presentar us. apariencia esrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en Is peticion de demands. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. USTED DEBE LLEVAR ESTATE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEQUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE PA 17013 (800) 990-9108 Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 I.D. #30965 Date: 8/28/06 Attorney for Plaintiffs JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiffs V. GORDON PANILAITIS AND MARYANN BRICKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Q(. ( L ZL-7 -hrl CIVIL ACTION - LAW COMPLAINT AND NOW come Plaintiffs, James Cavanaugh and his wife, Barbara Cavanaugh, by their attorneys, Freeburn & Hamilton, and file the following Complaint: 1. Plaintiffs, James Cavanaugh and his wife, Barbara Cavanaugh, are adult individuals who reside at 3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Gordon Panilaitis, is an adult individual who resides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Maryann Bricker, is an adult individual who resides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 4. The facts and occurrences hereinafter related took place on or about November 18, 2005 at approximately 8:15 p.m. at or about the intersection of South Pitt and West Willow Streets, in the Borough of Carlisle, Cumberland County, Pennsylvania. 5. At or about that time and place, Plaintiff, James Cavanaugh was driving his automobile eastbound on West Willow Street, in the Borough of Carlisle, Cumberland County, Pennsylvania. 6. At or about that time and place, Defendant, Gordon Panilaitis was driving an automobile owned by Defendant, Maryann Bricker, southbound on South Pitt Street in the Borough of Carlisle, Cumberland County, Pennsylvania. 7. The intersection of West Willow Street and South Pitt Street is controlled by a flashing red signal for traffic traveling south on South Pitt Street and a flashing yellow signal for vehicles traveling east on West Willow Street. 8. Defendant, Gordon Panilaitis, entered the intersection against the red traffic signal when it was not safe to do so and the front of the automobile that he was driving struck the automobile operated by Plaintiff, James Cavanaugh in the left rear. 9. As a result of the aforesaid collision, the automobile operated by Plaintiff, James Cavanaugh hit a house on the southeast corner of the intersection. 10. It is believed and therefore averred that at the time of the collision, Defendant, Gordon Panilaitis, did not have a valid driver's license, and that his license was under suspension, and expired at that time. 11. It is believed and therefore averred that at the time of the collision, Defendant, Gordon Panilaitis, was driving the automobile owned by Defendant, Maryann Bricker, with Maryann Bricker's permission. 12. By reason of the aforesaid collision, Plaintiff James Cavanaugh suffered painful and severe injuries to his nerves, bones and soft tissues which include, but are not limited to, back, neck, shoulder and hip injuries. 13. By reason of the aforesaid collision and injuries, Plaintiff suffered a heightened possibility that he will suffer other or additional injury in the future, and claim is made therefore. 2 14. The aforesaid collision and injuries suffered by Plaintiff may have aggravated or been aggravated by an existing infirmity, condition or disease, resulting in a prolongation or worsening of the injuries and an enhanced risk of future harm to Plaintiff, and claim is made therefore. 15. By reason of the aforesaid collision and injuries, Plaintiff has been forced to incur liability for reasonable and necessary medical tests, medical examinations, medical treatment, medications, hospitalizations and similar expenses in an effort to diagnose his injuries and to restore himself to health, and claim is made therefore. 16. Plaintiff has not fully recovered from his injuries and it is reasonably likely that he will incur similar expenses in the future, and claim is made therefore. 17. By reason of the aforesaid collision and injuries, Plaintiff has suffered a loss of earnings and earning capacity and is entitled to recover the value of the time, earnings and employment benefits he has lost and which she might reasonably have earned in the pursuit of his ordinary calling, and claim is made therefore. 18. By reason of the aforesaid collision and injuries, Plaintiff has suffered a loss or impairment of future earning capacity, and claim is made therefore. 19. By reason of the aforesaid collision and injuries, Plaintiff has incurred incidental costs and expenses the exact amount of which cannot be ascertained at this time, and claim is made therefore. 20. By reason of the aforesaid collision and injuries, Plaintiff has undergone and in the future will undergo great physical and mental pain and suffering, great inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment, and claim is made therefore. 3 21. By reason of the aforesaid collision and injuries, Plaintiff has been subjected to severe humiliation, embarrassment, shame, worry and anger. 22. By reason of the aforesaid collision and injuries, Plaintiff has been subjected to severe mental anguish, emotional distress, nervous shock, fright and horror. 23. By reason of the aforesaid collision and injuries, Plaintiff will continue to endure great mental anguish, emotional distress, shame, worry and anger in the future. 24. By reason of the aforesaid collision and injuries, Plaintiff has been deprived his enjoyment of the pleasures of life. 25. By reason of the aforesaid collision and injuries, Plaintiff continues to be plagued by persistent pain and limitation and, therefore, avers that his injuries may be of a permanent nature, causing residual problems for the remainder of his lifetime, and claim is made therefore. 26. Plaintiffs are entitled to recover non-economic damages because at the time of this accident, they were insureds under an automobile insurance policy that provided the full tort option. COUNT I James Cavanaugh, Plaintiff v. Gordon Panilaitis, Defendant 27. Paragraphs 1-26 are incorporated herein by reference thereto. 4 28. The foregoing accident and all of the injuries and damages set forth hereinafter suffered by Plaintiffs, James Cavanaugh and Barbara Cavanaugh, are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendant, Gordon Panilaitis, operated a motor vehicle as follows: a. In operating the vehicle at an excessive rate of speed under the circumstances; b. In failing to apply his brakes in time to avoid the collision; C. In negligently applying his brakes; d. In failing to observe plaintiffs vehicle on the highway; e. In failing to operate his vehicle in accordance with existing traffic conditions and traffic controls; f. In permitting or allowing his vehicle to strike and collide with the vehicle operated by the plaintiff; g. In failing to exercise the high degree of care required of a motorist entering an intersection; h. In operating his motor vehicle at a time when defendant did not have a current Pennsylvania operator's license; i. In failing to drive at a speed and in the manner that would allow defendant to stop within the assured clear distance ahead; j. In failing to properly observe traffic signals controlling defendant's direction of travel; k. In failing to keep a reasonable look-out for other vehicles lawfully on the road; 1. In attempting to enter an intersection when such movement could not be safely accomplished; M. In failing to yield the right-of-way to traffic already upon the highway; n. In operating his vehicle in a manner not consistent with the road and weather conditions prevailing at the time; 5 o. In failing to prudently proceed through the intersection so as to avoid creating a dangerous situation for other vehicles on the highway; P. In failing to observe oncoming traffic; q. In proceeding through an intersection when such movement could not be made in safety; r. In failing to keep a proper look-out for approaching vehicles; B. In failing to yield the right-of-way to on-coming traffic; t. In operating his vehicle so as to create a dangerous situation for other vehicle on the roadway; and U. In failing to have yielded half of the highway to oncoming traffic. 29. Defendant's conduct, as set forth above, was in violation of the Pennsylvania Motor Vehicle Code, which is intended to protect persons lawfully on the highway such as Plaintiff, James Cavanaugh, from personal injury, and thus constitutes negligence per se. WHEREFORE, Plaintiff, James Cavanaugh, demands judgment in his favor and against Defendant, Gordon Panilaitis, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT H James Cavanaugh. Plaintiff v. Maryann Bricker. Defendant 30. Paragraphs 1-29 are incorporated herein by reference thereto. 6 31. The foregoing accident and all of the injuries and damages set forth hereinafter suffered by Plaintiffs, James Cavanaugh and Barbara Cavanaugh, are the direct and proximate result of the negligence of Maryann Bricker in entrusting her automobile to Defendant, Gordon Panilaitis. WHEREFORE, Plaintiff, James Cavanaugh, demands judgment in his favor and against Defendant, Gordon Panilaitis, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III James Cavanan¢h Plaintiff v Maryann Bricker Defendant 32. Paragraphs 1-31 are incorporated herein by reference thereto. 33. Pursuant to Pa.C.S. §1574, Defendant, Maryann Bricker, is jointly and severally liable with Defendant, Gordon Panilaitis, for any damage caused by the negligence of Gordon Panilaitis. WHEREFORE, Plaintiff, James Cavanaugh, demands judgment in his favor and against Defendant, Gordon Panilaitis, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 7 COUNT IV - LOSS OF CONSORTIUM Barbara Cavanaugh Plaintiff v. Gordon Panilaitis. Defendant 34. Paragraphs 1-33 are incorporated herein by reference thereto. 35 As a result of the aforementioned injuries suffered by her husband, James Cavanaugh, Plaintiff, Barbara Cavanaugh, has been and may in the future be deprived of the aid, assistance, comfort, care, companionship, society and consortium of her husband, all of which will be of great detriment, and claim is made therefore. 36. As a result of the aforementioned injuries suffered by her husband, Plaintiff, Barbara Cavanaugh, has incurred expenses and/or liability for the reasonable and necessary medical tests, medical examinations, medical treatment, medications, hospitalizations and similar expenses in an effort to diagnose his injuries and to restore him to health, and claim is made therefore. WHEREFORE, Plaintiff, Barbara Cavanaugh, demands judgment in her favor and against Defendant, Gordon Panilaitis, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT V - LOSS OF CONSORTIUM Barbara Cavanaugh Plaintiff v Maryann Bricker Defendant 37. Paragraphs 1-36 are incorporated herein by reference thereto. 8 38. As a result of the aforementioned injuries suffered by her husband, James Cavanaugh, Plaintiff, Barbara Cavanaugh, has been and may in the future be deprived of the aid, assistance, comfort, care, companionship, society and consortium of her husband, all of which will be of great detriment, and claim is made therefore. 39. As a result of the aforementioned injuries suffered by her husband, Plaintiff, Barbara Cavanaugh, has incurred expenses and/or liability for the reasonable and necessary medical tests, medical examinations, medical treatment, medications, hospitalizations and similar expenses in an effort to diagnose his injuries and to restore him to health, and claim is made therefore. WHEREFORE, Plaintiff, Barbara Cavanaugh, demands judgment in her favor and against Defendant, Maryann Bricker, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully Submitted, FREEBURN & HAMILTON By: Ri hard E. Freeburn, Esqu I.D. No. 30965 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 Date: 8/28/06 Counsel for Plaintiffs 9 We hereby verify that the statements in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.(-',S. Section 4904, relating to unsworn falsification to authorities. Dated: ,I zwtos?o.. Qjzwwx,,,4 Barbara Cavanaugh n ? ttt r9_ Gy rl) Zr Lr1 00 EDELSTEIN BRASCETTA & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Attorney for defendant(s) Philadelphia, PA 19102 Maryann Bricker (215) 893-9311 Fax: (215) 893-9310 EB&S File No. 230.050 JAMES CAVANAUGH AND COURT OF COMMON PLEAS BARBARA CAVANAUGH CUMBERLAND COUNTY, PENNSYLVANIA VS. NO.: 06-5016 CIVIL ACTION-LAW GORDON PANILAITIS AND MARYANN BRICKER ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter our appearance on behalf of defendant, MARYANN BRICKER in the within action. Defendant hereby demands a jury trial in this matter. Jury of twelve with alternates, demanded. EDELSTEIN BRASCETTA & STEINBERG, LLP BY: r AY L. EDELS IN, ESQUIRE orney for Defen t(s) DATE: ?? Maryann Bricker C V.1T t j L`., ,? 1y R3? b 4 @ EDELSTEIN BY: JAY L. EDELSTE Identification No.: 3022, 230 South Broad Street, Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 EB&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER LLP. At M; COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW ANSWER OF DEFENDANT MARYANN BRICKER TO PLAINTIFFS' COMPLAINT IN CIVIL ACTION WITH NEW MATTER AND NEW MATTER CROSSCLAIM AND NOW COMES Defendant, Maryann Bricker by and through their attorneys, Edelstein, Brascetta & Steinberg, LLP answering plaintiffs' Complaint in Civil Action with New Matter and New Matter Crossclaim as follows: 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 2. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 3. Admitted as stated. 4. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 5. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph concerning events or conditions or the allegations pertaining to identity, ownership, possession or control of the instrumentality involved and/or the allegations of agency or authority. Strict proof thereof is demanded if deemed relevant at the time of trial. All other averments in the aforesaid paragraph are specifically denied. Strict proof thereof is demanded if deemed relevant at the time of trial. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 8. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 9. Denied. After reasonable investigation, answering defendant is without 'knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph concerning events or conditions or the allegations pertaining to identity, ownership, possession or control of the instrumentality involved and/or the allegations of agency or authority. Strict proof thereof is demanded if deemed relevant at the time of trial. All other averments in the aforesaid paragraph are specifically denied. Strict proof thereof is demanded if deemed relevant at the time of trial. 10. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 11. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph concerning events or conditions or the allegations pertaining to identity, ownership, possession or control of the instrumentality involved and/or the allegations of agency or authority. Strict proof thereof is demanded if deemed relevant at the time of trial. All other averments in the aforesaid paragraph are specifically denied. Strict proof thereof is demanded if deemed relevant at the time of trial. . , 12. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 13. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. i 14. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 15. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 16. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 17. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 18. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 19. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 20. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 21. Denied. After reasonable investigation, answering defendant is without 'knowledge or information sufficient to form a belief as to the truth of the averments in the I aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 22. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 23. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 24. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 25. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 26. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. COUNT ONE 27. Answering defendant hereby incorporates by reference answers to paragraphs one through 26 inclusive as though fully set forth herein at length. 28. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the I aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. All allegations with regard to negligence, carelessness, wanton and reckless behavior is specifically denied. Strict proof thereof being demanded if deemed relevant at the time of trial. 29. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. COUNT TWO 30. Answering defendants hereby incorporates by reference answers to paragraphs one through 29 inclusive as though fully set forth herein at length. 31. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. It is specifically denied that defendant, Maryann Bricker was negligent, careless and/or reckless in any manner whatsoever. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. COUNT THREE 32. Answering defendants hereby incorporates by reference answers to paragraphs one through 31 inclusive as though fully set forth herein at length. 33. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. It is :specifically denied that defendant, Maryann Bricker was negligent, careless and/or reckless in any manner whatsoever. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. 32. Answering defendants hereby incorporates by reference answers to paragraphs one through 31 inclusive as though fully set forth herein at length. 33. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. It is specifically denied that defendant, Maryann Bricker was negligent, careless and/or reckless in any manner whatsoever. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. COUNT FOUR 34. Answering Defendant hereby incorporates by reference answers to paragraphs one through 33 inclusive as though fully set forth herein at length. 35. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 36. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. COUNT FIVE i 37. Answering Defendant hereby incorporates by reference answers to paragraphs one through 36 inclusive as though fully set forth herein at length. 38. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 39. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. NEW MATTER 40. Plaintiff's Complaint in Civil Action fails to state a cause of action against Defendant, Maryann Bricker. 41. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Comparative Negligence Act and the Doctrine of Assumption of the Risk. 42. Plaintiff s Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Financial Responsibility Act. 43. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Uninsured Motorist Act. 44. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Worker's Compensation Act. 45. Plaintiff's Complaint in Civil Action fails for lack of proper jurisdiction 11 and venue. 46. Plaintiff's injuries, if any, were caused by unknown third persons. 47. Plaintiff's Complaint in Civil Action is barred pursuant to the applicable Statute of Limitations. 48. Plaintiff was contributorily negligent as a matter of law. 49. At all times relevant hereto, defendant, Gordon Panilaitis was a non-permissive user of defendant, Maryann Bricker's vehicle taking such said vehicle, without her permission and without her knowledge, while she was sleeping. Strict proof to the contrary is demanded if deemed relevant at the time of trial. WHEREFORE, Answering Defendant, Maryann Bricker demands judgment in her favor. NEW MATTER CROSSCLAIM PURSUANT TO PA. R.C.P. 2252(d) JOINING GORDON PANILAITIS AS ADDITIONAL DEFENDANTS AND NOW comes Defendant, Maryann Bricker, pursuant to Pa. R.C.P. 2252(d), asserting that Co-Defendant, Gordon Panilaitis is alone liable, jointly and severally liable or liable over to Answering Defendant on the cause of action declared upon in Plaintiff's Complaint and is hereby severed and joined as an additional defendant to this action. WHEREFORE, Answering Defendant, Maryann Bricker demands judgment in her favor. EDELSTEIN, BRASCETTA & STEINBERG, LLP VERIFICATION The averments or denials of facts contained in the foregoing are true based upon the signer's personal knowledge or information and belief. If the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer`has knowledge or information sufficient to form a belief that one of them is true. This verification is made subject to the penalties of 18 PA C.S. 4904 relating to unsworn fal: DATE: L ? ~> ?. l.. M. "fix ?77 ?? ? ? i TI c _._; rn -_ ;_ ?: ti __- r - :?. _,_, ,aa ?? =?. JAMES CAVANAUGH AND IN THE COURT OF COMMON PLEAS BARBARA CAVANAUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 06-5016 V. : CIVIL ACTION - LAW GORDON PANILAITIS AND MARYANN BRICKER, Defendants PROOF OF SERVICE I hereby certify that I served a 10-Day Notice in the above-captioned matter by certified mail, return receipt requested, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with special prepaid postage on October 4, 2006. The postal return receipt evidencing said acceptance of service on October 6, 2006 is attached hereto. Respectfully submitted, FREEBURN & HAMILTON By: Richard E. Freeburn, Esquire I.D. No. 30965 4415 North Front Street Harrisburg, PA 17110 (717) 671-1955 Dated: ro -1(9 - O u Attorney for Plaintiffs fl?l iterr>m 1, 2, wi 9 9. Also 66irw o IMM 4 ff Ranh IR ed DeRv ecy b ds I I 1 4. r ftd yow Berns wW &0*4o ch the reverse a the we c:en rehwn *A 6o d to you. 2-? • Mach this cmd to the tre?.ef Ipieop, . ?? or on the front It 1. AIMds Addmeosd to sit L. B. Reodyac! by Dams of Ilrb I D. 1s d*my edriaw dM'Ident thxn Own 17 E3 160 M YE% sntw d*my address bdow. 0 No ?i. ewvim Type MrA E3 t3 ass Md t3 Rmild's O Rdam Reod n VwAW' ,?y ? C7 CAA. 4. Rsstrlf-do DeWery?09ft 2. AMW9 Nunbw 7006 0100 0003 9541 7638 BONN, Ps ftwn 3M 1, A4wmM*(!4 + DeiN?irra llilitn!#iaaipt f } r 14. 1!, .- 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Proof of Service has been duly served on the following this 16+'k day of October, 2006, by placing the same in the U.S. First Class Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jay L. Edelstein, Esquire EDELSTEIN BRASCETTA & STEINBERG 230 S. Broad Street, Ste. 900 Philadelphia PA 19102 Gordon Panilaitis 563 F Street Carlisle PA 17013 Ejc'- BY: ?. Richard E. Freeburn, Esquire Attorney I.D. #30965 FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 (717) 671-1955 Dated: 10- I U " olo Attorney for Plaintiffs c`' © ? ?`? ?. ? -? ? ?._ . ? ?, -. ?? ? ? , r ?? : ?- ?. .?. Oq??,?hgC JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiffs V. GORDON PANILAITIS AND MARYANN BRICKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5016 CIVIL ACTION -LAW PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT. MARYANN BRICKER AND NOW, come Plaintiffs, James Cavanaugh and Barbara Cavanaugh, by their attorneys, Freeburn & Hamilton, and file the following Reply to New Matter: 40. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 41. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 42. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 43. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 44. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 45. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 46. Plaintiffs specifically deny that their injuries were caused by unknown third persons. By further reply, Plaintiffs incorporate herein by reference thereto each and every averment contained in their Complaint. 47. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 48. This paragraph contains no averments of fact, only conclusions of law, to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. 49. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiffs respectfully request that this Honorable Court dismiss Defendant's New Matter, and enter judgment in their favor and against Defendants, Gordon Panilaitis and Maryann Bricker, in an amount in excess of TWENTY FIVE THOUSAND &, 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 2 NEW MATTER CROSS-CLAIM PURSUANT TO PA R.C.P 22521d) JOINING GORDON PANILAITIS AS ADDITIONAL DEFENDANT Any numbered allegation under this heading is directed to parties other than Plaintiffs and no reply is required. By way of further reply, Plaintiffs incorporate herein their reply to paragraph 49. By way of further reply, Plaintiffs incorporate herein by reference thereto each and every allegation contained in their Complaint. WHEREFORE, Plaintiffs respectfully request that this Honorable Court dismiss Defendant's New Matter Cross-Claim, and enter judgment in their favor and against Defendants, Gordon Panilaitis and Maryann Bricker, in an amount in excess of TWENTY FIVE THOUSAND 8v 00/ 100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully Submitted, FREEBURN & HAMILTON By: 7 ]?; ?,? E_ _? Richard E. Freeburn, Esquire I.D. No. 30965 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 Date: 10/18/06 Counsel for Plaintiffs 3 VERIFICATION We hereby verify that the statements in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 3 Oh G ames Cavanaugh cry U,)kl,-?Cl% % Barbara Cavanaugh r CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs' Reply to New Matter of Defendant, Maryann Bricker has been duly served on the following this 18th day of October, 2006, by placing the same in the U.S. First Class Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jay L. Edelstein, Esquire EDELSTEIN BRASCETTA & STEINBERG 230 S. Broad Street, Ste. 90.0 Philadelphia PA 19102 Gordon Panilaitis 563 F Street Carlisle PA 17013 BY: GeorgianneJ. Hess, A(qistant to Richard E. Freeburn, squire Attorney I.D. #30965 FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 (717) 671-1955 Dated: 10/ 18/06 Attorney for Plaintiffs r - r GORDON PANILAITIS AND MARYANN BRICKER I JAMES CAVANAUGH AND COURT OF COMMON PLEAS BARBARA CAVANAUGH CUMBERLAND COUNTY, PENNSYLVANIA vs. NO.: 06-5016 CIVIL ACTION-LAW (215) 893-9311 Fax: (215) 893-9310 EB&S File No. 230.050 230 South Broad Street, Suite 900 Attorney for defendant(s) Philadelphia, PA 19102 Maryann Bricker EDELSTEIN BRASCETTA & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 PRAECIPE TO SUBSTITUTE VERIFICATION I TO THE PROTHONOTARY: Kindly substitute the attached verification to Defendant's Answer to Plaintiff's Complaint which was filed on October It, 2006 in the above matter. EDELSTEIN, BRASCE BY: f JA , L. EDELSTEIN, E Att mey for Defendant, TEINBERG, LLP Bricker ,Dated: 10-19-06 I VERIFICATION The averments or denials of facts contained in the foregoing are true based upon the signer's personal knowledge or information and belief. If the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer has knowledge or information sufficient to form a belief that one of them is true. The language of this pleading is that of counsel and not of signer. This verification is made subject to the penalties of 18 PA C.S.A. §4904 relating to unsworn falsification to authorities. 15t? ( gnat e) C-Zzae"7 & - /- (Please prin name) DATE: 4, - Q ?j f 230.050 C7 C!:n O a? ra ;? ` y C.rrJ ?? r LAW OFFICES OF THOMAS J. WAGNER, LLC BY: GARY B. CUTLER, ESQUIRE ATTORNEY I.D. #30924 Attorney for Defendant, 8 Penn Center, 6`h Floor Gordon Panilaitis 1628 John F. Kennedy Boulevard Philadelphia, PA 19103 (215) 790-0761 James Cavanaugh and Barbara COURT OF COMMON PLEAS Cavanaugh CUMBERLAND COUNTY Vs. DP - 5110 Gordon Panilaitis and Maryann Bricker NO.- d---" 5 ANSWER OF GORDON PANILAITIS TO PLAINTIFFS' COMPLAINT WITH NEW MATTER Defendant, Gordon Panilaitis, denies responsibility for this incident and, in support thereof, avers: 1. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 2. Admitted. 3. Inasmuch as the averments contained in this paragraph refer to a party other than answering Defendant, no answer is necessary under the Pennsylvania Rules of Civil Procedure. 4. Admitted. 5. Admitted. 6. Admitted. 7. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 8. Denied. It is denied that Defendant Gordon Panilaitis entered the intersection when it was not safe to do so. 9. Admitted. 10. It is admitted that Plaintiff so avers. The specific averments contained in this paragraph of Plaintiffs' Complaint are, however, denied. 11. Denied. 12. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 13. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 14. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 15. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 16. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 17. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 18. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 19. After reasonable investigation, answering Defendant is without knowledge sufficient to 2 form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 20. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 21. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 22. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 23. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 24. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 25. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 26. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. COUNTI 27. Defendant Gordon Panilaitis incorporates by reference herein his answers to paragraphs one through 26 of Plaintiffs' Complaint as both fully set forth herein at length. 3 28. Denied. It is denied that Gordon Panilaitis negligent, careless or acted in a wanton and reckless manner in any time relevant hereto. It is specifically denied that the answering Defendant operated his vehicle at an excessive rate of speed under the circumstances, failed to apply his brakes in order to avoid a collision or was negligent in the manner in which he applied his brakes. Further, it is denied that the answering Defendant failed to observe Plaintiff's vehicle on the highway, failed to operate his vehicle in accordance with existing traffic conditions or traffic controls, or permitted or allowed his vehicle to strike or collide with the vehicle operated by Plaintiff. In addition, it is denied that answering Defendant failed to exercise the appropriate degree of care required of a motorist entering an intersection, operated his vehicle at a time when he did not have a current driver's license or failed to drive at a speed in a manner which would allow him to stop within the assured clear distance ahead. It is further denied that answering Defendant failed to observe properly traffic signals controlling his direction of travel, failed to keep a reasonable lookout for other vehicles lawfully on the road, or attempted to enter an intersection when such movement could not be safely accomplished. Moreover, answering Defendant denies that he failed to yield a right of way to traffic already upon the highway, operated his vehicle in a manner not consistent with the road and weather conditions prevailing at the time, or failed to proceed prudently through an intersection so as to avoid creating a dangerous situation for other vehicles on the highway. Additionally, answering Defendant denies that he failed to observe oncoming traffic, proceeded to an intersection when it could not be done safely or failed to keep a proper lookout for approaching vehicles. Moreover, answering Defendant denies that he failed to yield the right of way to oncoming traffic, operated his vehicle so as to create a dangerous situation for other vehicles on the roadway or failed to have yielded half of the highway to oncoming traffic. It is the intention of answering Defendant to have denied each and every specific allegation of negligence in this paragraph. To the extent that 4 these denials have not been completed to each of these specific averments, answering Defendant generally denies all averments contained in this paragraph. 29. Denied. It is denied that answering Defendant operated his vehicle in a manner in violation of the Motor Vehicle Code of Pennsylvania. It is specifically denied that Defendant was responsible for negligence per se. WHEREFORE, Defendant Gordon Panilaitis demands judgment in his favor and against Plaintiff James Cavanaugh with costs and fees to be assessed. Count II 30. Defendant Gordon Panilaitis incorporates by reference herein his answers to paragraphs one through 29 of Plaintiffs' Complaint as both fully set forth herein at length. 31. Inasmuch as the averments contained in this paragraph refer to a party other than answering Defendant, no answer is necessary under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant Gordon Panilaitis demands judgment in his favor and against Plaintiff James Cavanaugh with costs and fees to be assessed. Count III 32. Defendant Gordon Panilaitis incorporates by reference herein his answers to paragraphs one through 31 of Plaintiffs' Complaint as both fully set forth herein at length. 33. Inasmuch as the averments contained in this paragraph refer to a party other than answering Defendant, no answer is necessary under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant Gordon Panilaitis demands judgment in his favor and against Plaintiff James Cavanaugh with costs and fees to be assessed. Count IV 34. Defendant Gordon Panilaitis incorporates by reference herein his answers to paragraphs one through 33 of Plaintiffs' Complaint as both fully set forth herein at length. 5 35. Denied. After reasonable investigation, answering Defendant is without knowledge sufficient to form a belief as to the truth of these averments and, therefore, these averments are deemed denied with strict proof thereof being demanded at time of trial. 36. It is admitted that such a claim is being made. It is denied that answering Defendant is responsible for any of the asserted damages or other losses averred by Plaintiff Barbara Cavanaugh. WHEREFORE, Defendant Gordon Panilaitis demands judgment in his favor and against Plaintiff Barbara Cavanaugh with costs and fees to be assessed. Count V 37. Defendant Gordon Panilaitis incorporates by reference herein his answers to paragraphs one through 36 of Plaintiffs' Complaint as both fully set forth herein at length. 38. Inasmuch as the averments contained in this paragraph refer to a party other than answering Defendant, no answer is necessary under the Pennsylvania Rules of Civil Procedure. 39. Inasmuch as the averments contained in this paragraph refer to a party other than answering Defendant, no answer is necessary under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant Gordon Panilaitis demands judgment in his favor and against Plaintiff James Cavanaugh with costs and fees to be assessed. NEW MATTER 40. Answering Defendant owed no duty to Plaintiffs. 41. Plaintiffs' injury and economic claims are barred by their choice of limited tort insurance or lack of insurance. 42. Plaintiffs' alleged injuries fail to satisfy the limited tort threshold and they are barred from recovery. 43. Plaintiffs' claims are barred by the applicable Statute of Limitations. 6 44, Plaintiffs' Complaint fails to state a cause of action upon which relief may be granted. 45. Plaintiffs' claims may be limited and/or barred by Plaintiff, James Cavanaugh's own contributory negligence and by operation of the Pennsylvania Comparative Negligence Act. 46. This incident was caused by Plaintiff, James Cavanaugh's failure to obey the rules and regulations for operation of motor vehicles as described in the Statutes of the Commonwealth of Pennsylvania and ordinances of local jurisdictions. 47. Plaintiffs' recovery may be barred by Plaintiff's knowing assumption of risk. 48. Plaintiff s' injuries, damages and other losses alleged to have been suffered as a result of this incident were caused by the acts or omissions of third parties other than Answering Defendant. 49. Plaintiffs' injuries, damages and other losses alleged to have been suffered as a result of this incident were pre-existing and/or were caused by incidents occurring after the date of this incident. 50. Plaintiffs' claims may be barred by the doctrines of Res Judicata, waiver, or estoppel. 51. Answering Defendant's conduct was not a substantial factor or the cause of any of Plaintiffs' alleged injuries/damages. 52. Defendant incorporates by reference the defenses and evidentiary exclusions provided by the Pennsylvania Motor Vehicle Financial Responsibility Act set forth in 75 Pa. C. S. A. § 1701 et se . as a bar to Plaintiff's liability and damage claims. 53. Defendant was confronted with an emergency situation which he could not have anticipated prior to the moment that the emergency arose and, therefore, Defendant's alleged negligence was not the cause of the accident described by Plaintiff. WHEREFORE, Defendant, James Panalaitis, demands judgment in his favor and against 7 Plaintiffs with costs and fees and to be assessed. LAW OFFI?ES HOMA J. WAGNER BY: r _._. _. GA CUTLER, ESQUIRE Attdrney for Defendant, Gordon Panilaitis VERIFICATION Gary B. Cutler, Esquire hereby deposes and states that he is the attorney for Defendant Gordon Panilaitis in the within action, and that he is familiar with the facts set forth in the foregoing Answer of Gordon Panilaitis to Plaintiffs' Complaint with New Matter; that the same are true and correct to the best of his knowledge, information and belief, and that this verification is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. By: y G Y B. UTLER, ESQUIRE Dated: October 27, 2006 c_- C7-:, i ? ;7' SHERIFF'S RETURN - REGULAR • ._. CASE NO: 2006-05016 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAVANAUGH JAMES ET AL VS PANILAITIS GORDON ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PANILAITIS GORDON the DEFENDANT at 1807:00 HOURS, on the 22nd day of September, 2006 at 563 F STREET CARLISLE, PA 17013 GORDON PANILAITIS by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline .00 32.79,/ 09/25/2006 1 v'DN'n 4 g4, FREEBURN & HAMILTON Sworn and Subscibed to By: -) ? 2 before me this day Ze_n(L--ty/-S of A.D. So Answers: SHERIFF'S RETURN - REGULAR 4 k CASE NO: 2006-05016 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAVANAUGH JAMES ET AL VS PANILAITIS GORDON ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRICKER MARYANN the DEFENDANT at 563 F STREET at 1650:00 HOURS, on the 13th day of September, 2006 CARLISLE, PA 17013 MARY ANN BRICKER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service 4.40 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 20.40 ?/ 09/25/2006 b I 1410 G FREEBURN & HAMILTON Sworn and Subscibed to By: before me this day of A.D. //De( tjVSh )rrf Richard E. Freeburn, Esquire FREEBURN 8v HAMILTON ID No. 30965 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 freeburn@pa-inj urylawyer. com JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-5016 V. GORDON PANILAITIS AND MARYANN BRICKER, Defendants : CIVIL ACTION -LAW PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE Kindly withdraw the appearance of Freeburn & Hamilton, attorneys for Plaintiffs, in the above-captioned action. By: Richard E. reeburn, Esquire 4415 North Front Street Harrisburg, PA 17110 (717) 671-1955 I.D. No. 30965 Please enter the appearance of Paul F. D'Emilio, Esquire, on behalf of Plaintiffs, in the above-captioned action. By: all "1 0 z & Paul F. 'Emilio, Esquire 905 West Sproul Road, Ste. 105 Springfield PA 19064 (610) 338-0338 I.D. No. 16654 N _ .. T # 'nT r _. J Fri .35 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiff VS. GORDON PANILAITIS AND MARYANN BRICKER, Defendants ATTORNEY FOR PLAINTIFF COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 06-5016 CIVIL ACTION ANSWER TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT. MARYANN BRICKER Plaintiffs, by their attorney, Paul F. D'Emilio, Esquire, answer the Motion for Summary Judgment in the above-captioned matter and set forth as follows: 1-3. Admitted. 4. Admitted. However, on January 29, 2007, Liberty Mutual Insurance Group as Subrogee of James Cavanaugh filed an action against Gordon Panilaitis and Maryann Bricker in the Common Pleas Court of Cumberland County, No. 07-544, and in paragraph 4 thereof, Plaintiff Liberty Mutual specifically states "4. At all times hereinafter mentioned the Defendant Gordon Panilaitis was the agent, workman, servant and employee of the Defendant Maryann Bricker then and there engaged in the business of the Defendant Maryann Bricker within the course and scope of his employment." A true and correct copy of the Complaint is attached hereto and made part hereof and marked Exhibit "A". 1 Plaintiff respectfully requests that the two cases be consolidated and that Your Honorable Court allow Plaintiff to amend the Complaint to include an allegation of agency as the statute of limitations has not passed. 5. Admitted. It is admitted that a responsive pleading was filed. It is denied that the responsive pleading was "appropriate." 6-7. Admitted. 8. Denied. It is denied that the Defendant Panilaitis was not a permissive driver of Defendant Bricker. On the contrary, Defendant Bricker had allowed Defendant Panilaitis to use the vehicle in the past knowing that the Defendant did not have a valid driver's license or financial responsibility. A true and correct copy of the Plaintiff adjuster's notes are attached hereto and made part hereof and marked Exhibit "B". 9. Denied. It is specifically denied that Panilaitis admitted that at the time he did not have permission to drive the Bricker vehicle. On the contrary, the Request for Admissions have no Certificate of Service. It is impossible to tell if the documents were even served. The document was never served on Plaintiffs counsel and if Plaintiffs counsel would have received a Request for Admissions, he would have denied same based upon the adjuster's notes. Furthermore, Plaintiff's counsel was without the opportunity to depose or cross examine the Defendant Panilaitis as to the truth of the allegations contained in the Request for Admissions. 10-15. Denied. The allegations are conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure and the allegations of the Complaint are incorporated herein by reference as fully as though the 2 same where herein set forth at length. 16. Denied. Defendant Panilaitis had used the Bricker vehicle in the past and had permission to use same, and it was the actions of both the Defendants Bricker and Panilaitis that were the proximate cause of the Plaintiffs injuries. 17. Denied. The allegation is a conclusion of law. However, Plaintiff's counsel has not had the opportunity to depose under oath the Defendant Bricker or the Defendant Panilaitis. Furthermore, Plaintiff adjuster's notes clearly indicate that Panilaitis had used the car in the past. WHEREFORE, Plaintiff respectfully requests your Honorable Court deny the Motion for Summary Judgment and allow Plaintiff to amend its Complaint to include an allegation of agency between the Defendants. Respectfully submitted, Paul F. D'Emilio, Esquire Attorney for Plaintiff 3 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiff VS. GORDON PANILAITIS AND MARYANN BRICKER, Defendants ATTORNEY FOR PLAINTIFF COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 06-5016 CIVIL ACTION MEMORANDUM OF LAW CONTRA DEFENDANT BRICKER'S MOTION FOR SUMMARY JUDGMENT 1. Statement of Facts On November 18, 2005, a motor vehicle owned by the Defendant Maryann Bricker and operated by the Defendant Gordon Panilaitis was traveling southbound on South Pitt Street, Carlisle, PA when Defendant Panilaitis failed to yield the right of way to the Plaintiff and he struck the Plaintiff's vehicle causing the Plaintiff's vehicle then to strike a house. As a result, Plaintiff James Cavanaugh suffered painful and severe injuries to his nerves, bone and soft tissue including but not limited to his back, neck, shoulder and hip. The Cavanaugh vehicle was a total loss. Defendant Panilaitis failed to yield the right of way to Cavanaugh, he operated the vehicle without insurance or financial responsibility and failed to have a valid driver's license. Contrary to the allegations of the Defendant Maryann Bricker, according to Plaintiff's adjuster who interviewed Maryann Bricker, she had in the past allowed Defendant Panilaitis to use the vehicle knowing that he was uninsured, knowing that he did not possess a valid driver's license and knowing that he failed to have financial responsibility in the event of an accident. II. Argument The Pennsylvania Rules of Civil Procedure provide: After the relevant pleadings are closed but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law. 42 Pa. C.S.A. §1035.2 The Court may enter Summary Judgment if: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if after completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 42 Pa C.S.A. §1035.2 In order to uphold a Summary Judgment, there must not only be an absence of genuine factual issues, but there must also be an entitlement to Judgment as a matter of law. Rybas v. Wapner, 311 Pa. Super. 50, 457 A.2d 180 (1983). Clearly, Defendant Bricker cannot proceed under Rule 1035.2(1), which requires "completion of discovery relevant to the Motion". Discovery in this matter has not even begun. Defendant Bricker attempts to proceed under Rule 1035.2(1) are premature. No discovery whatsoever has been taken other than sending Requests for Admissions to an unrepresented party. Clearly, Maryann Bricker's deposition and the 2 Defendant Panilaitis are crucial to the issue as to whether or not Panilaitis was driving either with the authority or as an agent of the Defendant Maryann Bricker. The Court should not rely on Request for Admissions that were never answered. There was no Certificate of Service attached to the Request for Admissions. The Request for Admissions were sent to an unrepresented party who has not even bothered to answer the Complaint. The Request for Admissions are self-serving. Unanswered Requests for Admission on which there is no certificate of service hardly qualify as entitling Defendant to "Judgment as a matter of law." Defendant's Motion further fails under Rule 1035.2(1) because there are genuine issues of material facts. Plaintiff's adjuster's notes which clearly indicate that Bricker had told the adjuster that Panilaitis had used the car in the past clearly create a genuine issue of material facts as to whether or not the vehicle had been used by Panilaitis in the past and with respect to the veracity of Maryann Bricker. Contrary to Rule 1035.2(1) none of the statements in support of the Motion have been verified. None of the statements in support of the Motion were taken under oath. No depositions were taken. Oral testimony alone even through affidavits of the moving party or the moving party's witnesses even if uncontradicted are generally insufficient to establish the absence of a genuine issue of material facts. Naty-glo v. American Surety Co. 309 PA 236,163 a.523 (1932) See also Penn Center House, Inc. v. Hoffman, 553 a.2d 900 (1989). III. Conclusion Clearly, because of the paucity of support for their Motion and because of the 3 clear conflict between the Defendant's position and the adjuster's notes, Defendant has failed to make out a prima facie defense and the issue would clearly have to be submitted to the jury. The material facts in this matter are disputed and issues of fact could be established by further discovery. It is clear that this matter is not ripe for determination. WHEREFORE, Plaintiff respectfully request that, Your Honorable Court deny the motion for Summary Judgment filed by Defendant Maryann Bricker Respectfully submitted, Paul F. D'Emilio, Esquire Attorney for Plaintiff 4 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiff VS. GORDON PANILAITIS AND MARYANN BRICKER, Defendants ATTORNEY FOR PLAINTIFF COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 06-5016 CIVIL ACTION CERTIFICATE OF SERVICE Paul F. D'Emilio, Esquire, attorney for Plaintiff, hereby certifies that a true and correct copy of Plaintiffs' Answer to Motion for Summary Judgment of Defendant Maryann Bricker and Memorandum of Law Contra Defendant's Motion for Summary Judgment was sent on June 12, 2007 by ordinary mail, postage prepaid, upon the following person: Jay L. Edelstein, Esquire EDELSTEIN & STEINBERG, LLP 230 S. Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Paul F. D'Emilio, Esquire Attorney for Plaintiffs 5 EXHIBIT "A" PAUL F. D'EMILIO, ESQUIRE THIS IS AN ARBITRATION MATTER ATTORNEY I.D. #16654 905 W. SPROUL ROAD, SUITE 105 ATTORNEY FOR PLAINTIFF SPRINGFIELD, PA 19064 (610) 338-0338 LIBERTY MUTUAL INSURANCE GROUP COMMON PLEAS COURT OF AS SUBROGEE OF JAMES CAVANAUGH CUMBERLAND COUNTY 26 NESBITT ROAD, SUITE 2 NEW CASTLE, PA 16105 VS. GORDON PANILAITIS 563 F STREET CARLISLE, PA 17013 NO. 0.7 - S"Lj? AND MARYANN BRICKER 563 F. STREET CARLISLE. PA 17013 CIVIL ACTION NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER„ GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 "ISO co?C-Tv Le han demandado a usted an la corte. Si usted quiere defenderse de estas demandas expuestas an las paginas siguientes, usted tiene (20) dies de plazo a partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o an persona o por abogado y archivar an la corte sus defensas o sus objeciones a las demandas encontra de su persona. Sea avisado qua si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion o por cualgier queja o alivio qua espedido an la peticion de demanda. Usted puede perder dinero, sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE LISTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 I" , u CJl PAUL F. D-EMILIO, ESQUIRE ATTORNEY I.D. #16654 905 W. SPROUL ROAD, SUITE 105 ATTORNEY FOR PLAINTIFF SPRINGFIELD, PA 19064 (610) 338-0338 LIBERTY MUTUAL INSURANCE GROUP COMMON PLEAS COURT OF AS SUBROGEE OF JAMES CAVANAUGH CUMBERLAND COUNTY 26 NESBITT ROAD, SUITE 2 NEW CASTLE, PA 16105 VS. GORDON PANILAITIS NO. 563 F STREET CARLISLE, PA 17013 AND MARYANN BRICKER 563 F. STREET CIVIL ACTION CARLISLE. PA 17013 NOTICE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1601 (AS AMENDED) THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW, 73 PA.CON.STAT.ANN. §201, ET. SEQ. ("THE ACTS") IN AS MUCH AS THE ACTS MAY APPLY, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. COMPLAINT The Plaintiff, Liberty Mutual Insurance Group, by its attorney Paul F. D'Emilio, Esquire, bring this action upon a cause whereof the following is a statement: 1. The Plaintiff, Liberty Mutual Insurance Group, ("Liberty") is a Corporation authorized to do business in the Commonwealth of Pennsylvania, having an office at 26 Nesbitt Road„ Suite 2, New Castle, PA 16105. Plaintiff brings this action as subrogee of James Cavanuagh, herein the ("Insured") under a policy of insurance # A0628813203570, issued by Plaintiff. 2. Defendant, Gordon Panilaitis is an individual residing at 563 F Street, Carlisle, PA 17013. 3. Defendant, Maryann Bricker is an individual residing at 563 F Street, Carlisle PA 17013. 4. At all times hereinafter mentioned the Defendant, Gordon Panilaitis was the agent, workman, servant and employee of the Defendant, Maryann Bricker then and there engaged in the business of the Defendant, Maryann Bricker within the course and scope of his employment. 5. On or about November 18, 2005, a motor vehicle owned by the Defendant, Maryann Bricker and operated by the Defendant, Gordon Panilaitis was traveling southbound on South Pit Street, Carlisle, PA when he failed to yield the right away to the Insured when he struck the Insured's vehicle causing the Insured to hit a house and causing damages hereinafter set forth. 6. As a result of the aforesaid Plaintiffs Insured, James Cavanuagh suffered painful and severe injuries to his nerves, bones and soft tissues which include, but are not limited to his back, neck, shoulder and hip injuries. All of which caused him and will for an indefinite time in the future, great pain and agony and prevented him and probably will in the future, from daily activities. 7. As a result of the injuries to Plaintiffs Insured and Defendant's failure to maintain financial responsibility as required by law, Plaintiff Insurance carrier has been obligated to paid to the Plaintiff a sum of Nineteen Thousand and 00/100 ($19,000.00) Dollars pursuant to the uninsured motorist's provisions of their insurance policy. 8. Insured's vehicle was a total loss and Defendant is liable to Plaintiff for the damages as allowed by law thereto being is Three Thousand Eight Hundred Five and 88/100 ($3,805.88) Dollars plus the Insured's deductible of Five Hundred and 00/100 ($500.00) Dollars for a total of Four Thousand Three Hundred Five and 88/100 ($4,305.88) Dollars. 2 Count I Liberty Mutual Insurance Group v. Gordon Panilaitis 9. Plaintiff, Liberty Mutual Insurance Group, incorporates by reference all of the allegations contained in paragraphs 1 through 8 inclusive of this Complaint as fully as though same were herein and set forth at length. 10. The said occurrence was due solely to the negligence of the Defendant, Gordon Panilaitis, in that he: a. did fail to have the motor vehicle under proper and adequate control; b. did operate the motor vehicle at an excessive rate of speed; C. did fail to apply the brakes in time to avoid the collision; d. did negligently apply the brakes; e. did fail to operate the vehicle in accordance with existing conditions; f. did fail to drive at a speed and in the manner that would allow him to stop within the assured clear distance ahead; g. did-fail to keep a reasonable lookout for other vehicles lawfully on the road; h. did operate the motor vehicle without due regard for the rights, safety and position of the Insured at the point of aforesaid; i. failed to yield the right a way to the Insured; j. did operate the vehicle without Insurance; k. did fail to maintain financial responsibility; 1. did drive without a valid license; and M. did violate the various statutes and laws of the Commonwealth of Pennsylvania and County of Cumberland and Sections 1501 and 3321 of the Motor Vehicle Code, pertaining to the operation of motor vehicles. 3 -o%lln# 11 Liberty Mutual Insurance coup v. Maryann Bricker 11. Plaintiff, Liberty Mutual Insurance Group, incorporates by reference all of the allegations contained in paragraphs 1 through 10 inclusive of this Complaint as fully as though same were herein and set forth at length. 12. The said occurrence was do to the negligence of the Defendant, Maryann Bricker, in that she: a. negligently entrust her vehicle to another operator for use when she 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 her motor vehicle to a person which she knew, or in the exercise of reasonable care should have known, was an incompetent driver; C. negligently entrust her 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; d. negligently entrust her motor vehicle to another person who she knew, should have known or in the exercise of due care would have known would cause damages to another; e. negligently entrusted her motor vehicle to a person who she knew, should have known or in the exercise of due care would have known did not have a valid license; f. negligently entrust her motor vehicle to a person known, should have known or in the exercise of reasonable care would have known, was not an authorized driver; and g. did violate the various statutes and laws of the County of Philadelphia, and Commonwealth of Pennsylvania pertaining to the operation of motor vehicles. 4 WHEREFORE, Plaintiff demands judgment against the Defendants upon each count in an amount not in excess of Fifty Thousand and 001100 ($50,000.00) dollars together with costs of suit. A417. D'' ILI ESQUIRE ATTORNEY FOR PLAINTIFF 5 VERIFICATION ? ?NA6crc ?lQh? Subrogation Speeielist with Liberty Mutual Insurance Group in the above captioned matter verifies that the facts contained in the foregoing Complaint are true and correct. 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: 10??I Subrogation Spesialist EXHIBIT "B" ZR.d tin g expfnatlon as to why claim dented, snt letter aovrsrriy u,u y allega Rodallega laim denied fox unlisted resident u ser Rodallega 0400 x 525 /oo6.12:27:50 ce Um Rodallega call to anny office for cc subro needs copy of denial faxed to 631 261-8896 °`13/0312D06 10:12:23 Amy Rodallega •cvd cc subro snl denial loiter 33101!2008 12:17:40 Amy Rodallega -cvd letter from Omni attny asking for expl of denial :ailed mr freebum Um advising claim denied for resident user 32107/2006 15:48:31 Amy Rodallega ,cvd tdmnt attny rep later snt denial 1 2/1 312005 08:12.41 Amy Rodallega lot rcpt of denial snt to ni 12/1212005 08:79:07 Amy Rodallega )of call from cc advisd claim denied for resident user 1210612005 08'04:43 Amy Rodallega snt denial dosed file 12105120D5 15:08:51 Deirdre Felton - 3mi Ok to deny for non-permissive use/unlisted resident. 1210512005 07:43:47 Amy Rodatlega rcvd copy of pr verifies that on dot uld thought was at 4 way stop at flashing lights and proceeded causing accident as cimnt had right of way, cp's were ckd out by arcs and were ok, cv hit house but no damage was done to house according to or 12/02/20D5 15:15.26 Angela Reese Submitting to legal for authority to proceed with unlisted resident coverage declination. 1210112D05 14:28:32 Amy Rodatlega resubmitted with resident dental 12/01/2005 12:27:13 Angela Reese File back to adjuster, stronger declination would be unlisted resident as vehicle operator advised he resided wl named insured for six months. File batik to adjuster to resubmit for unlisted resident Instead of non-permissive use. 1113012005 15:16:20 Amy Rodatlega called *Ad an 10sads oeB Vol rls sd an dd:lleak JV mNIe attwaV Zf*6P199 fittdaeta rrevewddven v0he n vf0Wd Q* *4,JW4 04e yard. viork , has no reason to believe would be allowed to take iv, sd he has a truck that runs but he doesnt drive it, on dot he came to what he thought was a 4 way stop he stopped then pulled and turns out wasnt a 4 way was only 2 way and cv, didni have stop sign, uld not Injured, uld has Itved with nl for about 8 months submitting for denial non permissive use 11/29/2005 14.27:42 Amy Rodatlega got message from old stated was calling from pay phone vwil try back 11/2812005 14:24:54 Amy Rodatlega rtnd call to old Um 1112212005 15:13.43 Kenneque Hughes ORD PR FROM CARLISLE PD 1112212005 14:36:15 Amy Rodallega got call from cimnt sd will need letter stating claim denied advised one will go out once Is denied, right now it is going to be submitted for approval on denial 11122/2005 14:16:39 Amy Rodallega called dmnt advised that appears clmnt will be denied be of resident user, not sndg out tri county understood will call an attny 11/2212005 14:06:19 Amy Rodallega ni called in got r/s sd on dot roomats who has lived with ni since around 5105 took tv vwthout permission, ni sd old owns a truck but that hasnt been working for about 4 months, ni sd uld has never driven Iv and has no reason to believe would be allowed to take veh, ni sd that uld told her he came to stop sign , stopped, tnen went thinking was e 4 way stop and hit cv, damage to Iv right front, old not injured, ni stated that uld did tell police that he took Iv without permission, ni sd (hat keys are kep on key ring in the house but again uld not allowed to drive iv ni sd that uld Is leaving for work around 5:00 and not getting home until 19:00 due to working out of town she will see if he can take off work or borrow someones phone to call In and give me statement tomorrow 1112212005 13:58:25 Amy Rodallega called clmnl sd on dot was travelling down rd and old in iv didnl stop at stop sign pushing cv, Into mailbox and then house, Injuries to dmnt driver and cps got dob's, sndg out th county to look at cv, advised of covg issue be of old nJ n -n t a . - _ ry -TI EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER Attorney for Defendant Maryann Bricker COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW REPLY OF DEFENDANT MARYANN BRICKER TO PLAINTIFFS' ANSWER TO MOTION FOR SUMMARY JUDGMENT Defendant Maryann Bricker, by and through her attorneys, hereby replies to Plaintiffs' Answer to her Motion for Summary Judgment as follows: • •I. - • FACTUAL AND PROCEDURAL BACKGROUND This case involves a claim for bodily injuries. It arises from an automobile accident that occurred on November 18, 2005. It is alleged that on date, Defendant Gordon Panilaitis ("Panilaitis") was involved in an automobile accident that resulted in bodily injuries to James Cavanaugh. Panilaitis was operating Ms. Bricker's vehicle at the time of accident. Plaintiffs have brought suit, alleging that Ms. Bricker negligently entrusted her vehicle to Panilaitis at the time of accident. Ms. Bricker denies that she negligently entrusted her vehicle to Panilaitis, and moves for summary judgment, on the basis that she cannot be held liable to the Plaintiffs under theories of agency or negligent entrustment.' ' Although Plaintiff failed to plead a theory of agency in their Complaint, they contend that they should be permitted to-amend to include an agency theory. For Me' reasons stated II. LEGAL ARGUMENT A. As to negligent entrustment. Plaintiffs contend that factual questions exist that preclude the entry of summary judgment with regard to their theory of negligent entrustment against Ms. Bricker. For the following reasons, their contention is without merit. Plaintiffs argue that Ms. Bricker "had in the past allowed ... Panilaitis to use the [Bricker] vehicle knowing that he was uninsured, knowing that he did not possess a valid driver's license and (sic) knowing that he failed to have financial responsibility in the event of an accident." (Memorandum of Law in Support of Plaintiffs' Answer to Ms. Bricker's Motion, at pp. 1-2) Plaintiffs advance no other reasons why Ms. Bricker should be held liable to them for the occurrence of the accident. Assuming Ms. Bricker was aware that Panilaitis was unlicensed and uninsured, as the Plaintiffs contend, she nevertheless cannot be held liable to the Plaintiffs. In Chamberlain v. Riddle, 155 Pa. Super. 507, 38 A.2d 521- (Pa. Super. Ct. 1944), our Superior Court held that merely giving a vehicle to an unlicensed driver does not establish negligent entrustment. See also Maxwell v. Enterprise Leasing Co., 4 Pa. D. & C. 4"' 497, 1989 WL 230563 (C.P. Delaware 1989), affd., 397 Pa. Super. 651, 571 A.2d 509 (Pa. Super. Ct. 1989) (same holding). Accordingly, even if Panilaitis was unlicensed at the time of accident, Ms. Bricker cannot be held liable as a result.. Likewise, in Maxwell, a decision that was affirmed by our Superior Court, the Court held as follows: Turning next to plaintiff's assertion that defendant was guilty of negligent entrustment for failing to ensure that the lessee had complied with the Pennsylvania Financial Responsibility Law, we see nothing in this record from herein, summary judgment must be granted to Ms. Bricker, even if Plaintiffs' request is granted. which we can conclude that the lessee's failure to have insurance had anything to do with the happening of this accident. Moreover, plaintiff has pointed to nothing which would compel us to reach such a conclusion. Plaintiff simply argues that the law requires that owners of motor vehicles must see that those vehicles are covered by insurance under penalty of revocation or suspension of registration. Although plaintiff may be correct that the failure to have insurance coverage is a violation of the law, it does not follow that all people who operate motor vehicles without insurance are incompetent drivers. We can see no relationship between the existence or non-existence of insurance coverage and the ability to properly operate the subject automobile. Therefore, even assuming that defendant was negligent in failing to determine that the lessee had the requisite insurance coverage, we are compelled to conclude, based upon this record, that such negligence was not the factual cause or the legal cause of the accident and the injuries sustained by plaintiff. Maxwell, 4 Pa. D. & C. 4`h, at 504-505 (emphasis added). The holding in Maxwell is directly applicable to this case with regard to Panilaitis' alleged lack of insurance at the time of accident. Plaintiffs' theory of negligent entrustment against Ms. Bricker is therefore deficient as a matter of law, and summary judgment must be entered in her favor. B. As to Plaintiffs' theory of agency. Plaintiffs failed to plead a theory of agency against Ms. Bricker in their initial Complaint. They nevertheless contend that they should be belatedly permitted to amend their Complaint to include an agency claim. With all due respect, an agency theory of liability will be of no greater help to the Plaintiffs than their theory of negligent entrustment. This is because Panilaitis was not acting as Ms. Bricker's agent at the time of accident. Indeed, Plaintiffs have adduced no evidence to suggest that Panilaitis was employed by Ms. Bricker, or that he was acting as her servant or representative. For that matter, Ms. Bricker has expressly denied that Panilaitis was acting as her agent when the accident occurred, as evidenced by the attached Affidavit that Ms. Bricker has executed. (Exhibit "A") Plaintiffs contend that they should nevertheless be permitted to depose the Defendants, in a vain attempt to adduce evidence that might support their agency theory. Taking all the depositions in the world, however, will not change the simple reality that at the time of accident, Panilaitis was not acting as Ms. Bricker's agent:. (See Exhibit "A") Depositions in this instance will merely be a waste of the parties' time and resources. The bottom line is that Panilaitis took Ms. Bricker's vehicle without her knowledge or consent, as a result of which the subject accident occurred. (Exhibit "A") Panilaitis may therefore be liable to the Plaintiffs. Ms. Bricker, however, is not and cannot be held liable to Plaintiffs under either an agency or negligent entrustment theory. Summary judgment must. therefore be granted in her favor. III. CONCLUSION For the reasons stated herein, as well as in Ms. Bricker's Motion for Summary Judgment, summary judgment must be granted in favor of Defendant Maryann Bricker. Respectfully submitted, EDELSTEIN & STEINBERG, LLP - DATE: a-\ DA BY: (WA L. EDELSTEIN, ESQUIRE ATTORNEY FOR DEFENDANT MARYANN BRICKER, EDELSTEIN & STEINBERG, LLP BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER Attorney for Defendant Maryann Bricker COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW AFFIDAVIT OF DEFENDANT MARYANN BRICKER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I, Maryann Bricker, being of adult age, hereby attest, swear and/or affirm as follows: 1. I am a Defendant in this case. ..2.. . This case arises out of an automobile accident that occurred on November 8, 2005. 3. 4. 5. 6. At the time of accident, Defendant Gordon Panilaitis was operating a vehicle that was owned by me, but which he was operating without my knowledge or consent. As such, Mr. Panilaitis had neither my express nor implied permission to operate my vehicle at the time of accident. Had I known that Mr. Panilaitis intended to take possession of and operate the vehicle he was utilizing at the time of accident, I would have unequivocally denied him permission to do so. At the time of accident, Mr. Panilaitis was running no errands on my behalf, nor acting as my employee, workman, servant, agent, and/or representative. To the contrary, Mr. Panilaitis was utilizing my vehicle strictly for his own purposes at the time of accident. 7. I make this Affidavit in support of the Motion for Summary Judgment that my attorneys have submitted on my behalf. 8. The foregoing statements are true to the best of my knowledge and belief. I am aware that if any of the foregoing statements are willfully false, I am subject to the penalties associated with perjury. A 4 (C? M MAkYA)N BRICKER SWORN AND SUBSCRIBED BEFORE ME THIS d 8 DAY OF .?-Y- 2007. ' 7 Ci? N Y PUBLIC 00 MY COMMISSION EXPIRES ON COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL JUDITH D. KAUFFMAN, NOTARY PUBLIC CARLISLE BOROUGH, CUMBERLAND COUNTY MY COMMISSION EXPIRES MARCH 10, 2011 . 11 CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Motion for Summary Judgment and Supporting Memorandum of Law was forwarded to the following, by first class mail, postage pre-paid on July 20, 2007: Paul F. D'Emilio, Esquire 905 W. Sprout Road, Suite 105 Springfield, PA 19064 Jeffrey C. Catanzarite, Esquire SUMMERS, MCDONNELL, HUDOCK & GUTHRIE & SKEEL, L.L.P. Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, PA 15219 -Mr. Gordon Panilaitis (unrepresented) 563 F Street Carlisle, PA 17013-1350 EDELSTEIN & STEINBERG, LLP BY: AY . t'HEL-STEIN, ESQUIRE rney for Defendant, Maryann Bricker ?? ? C7 ,. i `_ C... _73 EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 EB&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER Attorney for defendant(s) Maryann Bricker COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: 1. Defendant, Maryann Bricker's Motion for Summary Judgment 2. (a) Counsel for Plaintiff: Paul F. D'Emilio, Esquire 905 W. Sprout Road, Suite 105 Springfield, PA 19064 (b) Counsel for Defendant: Michael Logue, Esquire Edelstein & Steinberg, LLP 230 South Broad Street, Suite 900 Philadelphia, PA 19102 3. I will notify all parties in writing within two days that this case has been listing for argument. 4. Argument Court Date: October 3, 2007 MICHHAL LOGUE, ESQUIRE DATE: 5 d Attorney for defendant, Maryann Bricker C ? O - G3 n M :T 1 v N-ab t? rT Cz) rn 5 James Cavanaugh and Barbara Cavanaugh V. Gordon Panilaitis and Maryann Bricker IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-5016 CIVIL TERM ORDER OF COURT AND NOW, October 4, 2007, by agreement of counsel, the above-captioned matter is continued from the October 3, 2007 Argument Court list. Counsel is directed to relist the case when ready. By Edgar B. Bayley, J. Paul F. D'Emilio, Esquire For the Plaintiff / Michael Logue, Esquire For the Defendant Court Administrator ?s kam v? r" = :J ? D I.- O EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER Attorney for defendant(s) Maryann Bricker COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW TO: Paul F. D'Emilio, Esquire 905 W. Sprout Road, Suite 105 Springfield, PA 19064 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within Motion to Compel Discovery was made on the below noted date to counsel above named by United States Mail, postage pre-paid. EDELSTEIN & STEINBERG, LLP BY: A L. EDELSTEIN, ESQUIRE DATE: torney for Defendant Maryann Bricker ORDER OF COURT AND NOW, to wit, this day of 2007, it is hereby Ordered and Decreed JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. GORDON PANILAITIS AND MARYANN BRICKER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW That plaintiff shall serve upon defendants certified answers to interrogatories and responses to request for production of documents within twenty (20) days or risk sanctions. BY THE COURT: J. s EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. GORDON PANILAITIS AND MARYANN BRICKER Attorney for defendant(s) Maryann Bricker COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS 1. Defendant, Maryann Bricker sent Interrogatories and Request for Production of Documents_ and Things to Plaintiffs, by way of their former counsel on September 26, 2006. (See cover letter at "Exhibit A") 2. By letters dated November 9, 2006, December 4, 2006, December 19, 2006, February 21, 2007 and March 7, 2007, defendant reminded plaintiffs that their discovery answers were overdue.(See "Exhibits, B, C, D, E, and F") 3. Again on October 15, 2007, Defendant sent Plaintiffs' counsel a "good faith letter" requesting answers to discovery (See "Exhibit G") 4. Defendants have attempted to resolve this matter in good faith without any success or results. 5. To date, plaintiffs have failed to produce any responses to defendants discovery requests. 6. Defendants will be severely prejudiced in their defense if plaintiff fails to provide responses to these discovery requests in a timely manner. WHEREFORE, Defendant, Maryann Bricker respectfully requests this Court issue an order compelling Plaintiffs, James Cavanaugh and Barbara Cavanaugh to submit certified answers to interrogatories and responses to request for production of documents within twenty (20) days or risk sanctions. EDELSTEIN & STEINBERG, LLP BY: JAY ILWELSTEIN, ESQUIRE Attorney for Defendant, Maryann Bricker DATE: 10 13Dj b--?' E D E L S T E I N Brascetta &-+ Steinberg, LLP ATTORNEYS AND COUNSELORS AT LAW JAY L. EDELSTEIN* KEVIN B. STEINBERG* GARY J. BRASCEITA' LOUIS J. DeLUCCA, JR.' JESSE M. COHEN' CHRISTOPHER A. FRANZINI' MEMBER OF PA & NJ BAR MEMBER OF PA BAR 230 S. BROAD STREET suITE 900 PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 ILE &Edel®teinlaw.com OF COUNSEL HAROLD DIAMOND" Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 September 26, 2006 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. MARYANN BRICKER, et al. C.C.P., CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. Freeburn: OUR FILE NO: 230.050 Enclosed please find our Entry of Appearance on behalf of the defendant, Maryann Bricker the original of which has been duly filed of record with the court. In addition, I am enclosing a Request for Production of Document and Things, as well as Interrogatories addressed to your clients. Please answer there within thirty (30) days as required by the Pennsylvania Rules of Civil Procedure. This will confirm your granting us an extension of time for the purpose of filing an answer or otherwise pleading in response to this matter. Very truly yours, JAY L. EDELSTEIN JLE/mam Enclosure bcc: Ms. Frances G. Franklin/SAFE AUTO INSURANCE COMPANY FILE NO.: 231729-BI-2 5,?fr E D E L S T E I N bra scetta & Stein berg, L L P ATTORNEYS AND COUNSELORS AT LAW JAY L. EDELSTEIN' KEVIN B. STEINBERG* GARY J. BRASCEITA' LOUIS J. DeLUCCA, JR.' JESSE M. COHEN' CHRISTOPHER A. FRANZINI' MEMBER OF PA & NJ BAR MEMBER OF PA BAR 230 S. BROAD STREET svrrE 900 PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 UX(-@IEAelsteinlaw.com November 9, 2006 Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. OF COUNSEL HAROLD DIAMOND" OUR FILE NO:230-.050 MARYANN BRICKER, et al. C.C.P., CUMBERLAND CO, PA;CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. Freeburn: Thank you for your's of October 11, 2006. I take exception to that correspondence. There is nothing "intriguing" about Safe Auto's position in this case. The driver of the vehicle took the insured operator's keys without her permission and was operating the vehicle as a non- permissive user. Clearly, under the law in the Commonwealth of Pennsylvania, no coverage extends. As to your comment on how Safe Auto does business, I believe that to be a bit unprofessional, but certainly will let it go at this point. Having said all that, please forward Answers to Interrogatories and compliance with Request for Production of Documents. Please submit a demand in settlement and also discuss whether or not you are going to bring an uninsured motorist claim per our suggestion. We thank you in advance for your anticipated courtesy and cooperation. Very truly yours, JAY L. EDELSTEIN JLE/pw bcc: Ms. Frances G. Franklin, SAFE AUTO INSURANCE COMPANY FILE NO. : 231729-BI-2 E D E L S T E I N -prascetto &-, Steinberg, LP ATTORNEYS AND COUNSELORS AT LAW JAY L. EDELSTEIN' KEVIN B. STEINBERG* GARY J. BRASCETTA' LOUIS J. DeLUCCA, JR.- JESSE M. COHEN' CHRISTOPHER A. FRANZINI' MEMBER OF PA & NJ BAR MEMBER OF PA BAR 230 S. BROAD STREET SUITE 900 PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 JLE@Edelste"wxom OF COUNSEL HAROLD DIAMOND- OUR FILE NO: Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 December 4, 2006 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. 230.050 MARYANN BRICKER, et al. C.C.P., CUMBERLAND CO, PA;CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. Freeburn: The above-captioned matter has come up on diary. Please answer Interrogatories and comply with Request for Production of Documents within ten days to avoid the necessity of filing a Motion. Please advise as to whether you will discuss bringing an uninsured motorist claim per our suggestion. Having not heard from you this entire month, I am assuming that it is going to be necessary to file Motions and schedule discovery as we see fit. Very truly yours, JAY L. EDELSTEIN JLE/mam bcc: Ms. Frances G. Franklin/SAFE AUTO INSURANCE COMPANY FILE NO.: 231729-BI-2 E D E L S T E I N -pra scetta & stein berg, LLp ATTORNEYS AND COUNSELORS AT LAW JAY L. EDELSTEIN- KEVIN B. STEINBERG* GARY J. BRASCETI'A' LOUIS J. DeLUCCA, JR.- CHRISTOPHER A. FRANZINP MEMBER OF PA & NJ BAR MEMBER OF PA BAR 230 S. BROAD STREET sun'E 900 PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 ILE@Edeloteinlaw.com December 19, 2006 Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 OF COUNSEL HAROLD DIAMOND- OUR FILE NO:230.050 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. MARYANN BRICKER, et al. C.C.P., CUMBERLAND CO, PA;CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. Freeburn: Once again the above-captioned matter has come up on diary. Please answer our discovery requests immediately to avoid a Motion. Thank you for y our anticipated courtesy and cooperation. Very truly yours, JAY L. EDELSTEIN JLE/pw bcc: Ms. Frances G. Franklin SAFE AUTO INSURANCE COMPANY FILE NO. : 231729-BI-2 E D E L S T E I N -pra scetto &-+ Ste i n berg, L L P ATTORNEYS AND COUNSELORS AT LAW JAY L. EDELSTEIN' KEVIN B. STEINBERG' GARY J.BRASCETTA' LOUIS J. DeLUCCA, JR.' CHRISTOPHER A. FRANZINI' FRANKLIN R. STROKOFF' 230 S. BROAD STREET SUITE 900 PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 ILE@EdeLteinlaw.com OF COUNSEL HAROLD DIAMOND- MEMBER OF PA & NJ BAR MEMBER OF PA BAR OUR FILE NO: Paul F. D'Emilio, Esquire 905 w. Sprout Road, Suite 105 Springfield, PA 19064 February 21, 2007 230.050 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. MARYANN BRICKER, et al. C.C.P., CUMBERLAND CO, PA;CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. D'Emilio: We have asked you on a number of occasions to answer Interrogatories and comply with Request for Production of Documents. We have not heard from you in this regard. Despite the coverage issues moving forward, you appear satisfied to sit back. Are you proceeding in an uninsured motorist realm? Please advise. If you are, please file a deferral. We enclose for your review Supplemental Interrogatories with regard to Paragraph 31 of Plaintiff's Complaint. Please answer those Interrogatories by supplying us with whatever documentation you have to support a claim of "negligent entrustment". Thank you for your anticipated courtesy and cooperation. Very truly yours, JAY L. EDELSTEIN JLE/mam Enclosures bcc: Ms. Frances G. Franklin/SAFE AUTO INSURANCE COMPANY FILE NO.: 231729-BI-2 77777, E D E L S T E I N -prascetta &- Sjtoinberg, LLp ATTORNEYS AND COUNSELORS AT LAW JAY L. EDELSTEIN' KEVIN B. STEINBERG* GARY J. BRASCETTA- LOUIS J. DeLUCCA, JR.' CHRISTOPHER A. FRANZINI' FRANKLIN R. STROKOFF' MEMBER OF PA & NJ BAR MEMBER OF PA BAR 230 S. BROAD STREET SUITE 900 PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 JLE(&_Edelel ,,.com OF COUNSEL HAROLD DIAMOND" OUR FILE NO: Richard E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg, PA 17110 March 7, 2007 230.050 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. MARYANN BRICKER, et al. C.C.P., CUMBERLAND CO, PA;CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. Freeburn: We have asked you on a number of occasions to answer Interrogatories and comply with Request for Production of Documents. We have not heard from you in this regard. Despite the coverage issues moving forward, you appear satisfied to sit back. Are you proceeding in an uninsured motorist realm? Please advise. If you are, please file a deferral. We enclose for your review Supplemental Interrogatories with regard to Paragraph 31 of Plaintiff's Complaint. Please answer those Interrogatories by supplying us with whatever documentation you have to support a claim of "negligent entrustment". Thank you for your anticipated courtesy and cooperation. Very truly yours, JAY L. EDELSTEIN JLE/pw Enclosures bcc: Ms. Frances G. Franklin/SAFE AUTO INSURANCE COMPANY FILE NO.: 231729-BI-2 E D E L S T E I N JAY L. EDELSTEIN' KEVIN B. STEINBERG' LOUIS J. DeLUCCA, JR.' DAVID A. PENNINGTON- MICHAEL R. LOGUE' LANNI S. KLVIN' NICOLE R. COHEN' GUILLERMO J. BEADES' MEMBER OF PA & NJ BAR MEMBER OF PA BAR Steinberg, LLP ATTORNEYS AND COUNSELORS AT LAW 230 S. BROAD STREET OF COUNSEL SUITE 900 HAROLD DIAMOND- PHILADELPHIA, PA 19102 (215) 893-9311 FAX (215) 893-9310 W W W. E DE L S TE INLAW. COM TLE@Edeletcin6w.com OUR FILE NO;230.050 Paul F. D'Emilio, Esquire 905 W. Sprout Road, Suite 105 Springfield, PA 19064 October 15, 2007 RE: JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. MARYANN BRICKER, et al. C.C.P., CUMBERLAND CO, PA;CIVIL ACTION -LAW/NO.: 06-5016 Dear Mr. D'Emilio: Upon review of this file, I noticed that you have not provided this office with responses to request for production of documents as well as answers to interrogatories and supplemental interrogatories. These discovery requests were made more than a year ago. We cannot move forward with this case without this discovery. Please provide these answers within ten (10) days in order to avoid Motion practice. Additionally, we would like to schedule the depositions of your clients. Please contact this office so that we may agree on a mutually convenient time. As you are aware, oral argument on Defendant's Motion for Summary Judgment has been continued. The next available argument date in Cumberland County is November 21, 2007. We will hold of on filing a praecipe to re-list for oral argument until we have received discovery answers and scheduled the appropriate depositions. Thank you for your anticipated courtesy and cooperation. Please do not hesitate to contact my office with any questions or concerns. Very Truly Yours, LANNI KLEIN LSK/lk VERIFICATION The averments or denials of facts contained in the foregoing are true based upon the signer's personal knowledge or information and belief. If the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer has knowledge or information sufficient to form a belief that one of them is true. This verification is made subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities. JAY L E ELSTEIN, ESQUIRE DATE: l O 30 04 Attorney Certification of Good Faith The undersigned counsel for movant hereby certifies and attests that: 5I,(a. He or she has had the contacts described below with opposing counsel or unrepresented party regarding discovery matter contained in the foregoing discovery motion in an effort to resolve the specific discovery dispute(s) at issue and, further, that despite all counsel's good faith attempts to resolve the dispute(s), counsel have been unable to do so. Description: Defendant served Interrogatories and Request for Production of Documents on Plaintiff on September 26, 2006, and reminded Plaintiff's counsel that the responses were overdue by letters dated November 9, 2006, December 4, 2006, December 19, 2006, February 21, 2007, March 7, 2007 and October 15, 2007. Despite the lapse of that time period, Plaintiffs have not responded to these discovery requests. a6/ He or she has made good faith but unsuccessful efforts described below to contact opposing counsel or unrepresented party in an effort to resolve the discovery dispute. Description: Date: ' 1-3o/t) ?- CERTIFIED TO THE COURT BY: J Y . EDELSTEIN, ESQUIRE Attorney for Defendant, Maryann Bricker Note: The Signature of Respondent's Counsel Is Not Required .1 -.i > i 73 'P -71 C3 C ABRAHAMS, LOEWENSTEIN & BUSHMAN, P.C. BY: GARY B. CUTLER, ESQUIRE ATTORNEY I.D. #30924 Three Parkway, Suite 1300 Philadelphia, PA 19102 215-561-1030 James Cavanaugh and Barbara COURT OF COMMON PLEAS Cavanaugh CUMBERLAND COUNTY VS. Gordon Panilaitis and Maryann Bricker NO. 06-5OT5 <01U WITHDRAWAL OF APPEARANCE Kindly withdraw my appearance on behalf of Defendant, Gordon Panilaitis, in this matter. LAW OFF ES OF THOMAS J. WAGNER, LLC By: Gary B Cutler, Esquire ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant, Gordon Panilaitis , in this matter. AB S, L WENSTEIN & BUSHMAN, P.C. By: Oary B. utler, Esquire Three Parkway, Suite 1300 Philadelphia, PA 19102 215-561-1030 Date: December 5, 2007 d ,,e. EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 Attorney for defendant Maryann Bricker JAMES CAVANAUGH AND BARBARA CAVANAUGH vs. GORDON PANILAITIS AND MARYANN BRICKER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL. ACTION-LAW PARTIAL MOTION FOR SUMMARY JUDGMENT OF DEFENDANT MARYANN BRICKER AND NOW, comes defendant, Maryann Bricker, by and through her attorneys, Edelstein & Steinberg, LLP partially moving for Summary Judgment as follows: This incident arose as a result of an alleged motor vehicle accident that occurred on or about November 18, 2005, at or near the intersection of South Pitt Street and Willow Street, Carlisle, Pennsylvania. (Attached hereto is a copy of plaintiff s Complaint, which is marked as Exhibit "A") 2. Plaintiffs, James Cavanaugh and Barbara Cavanaugh, allege in their complaint, that Mr. Cavanaugh was involved in a motor vehicle accident with a vehicle owned by defendant Bricker and operated by defendant, Gordon Panilaitis. Id. Plaintiff further alleges in Count II of the Complaint that defendant Bricker was negligent in entrusting her vehicle to defendant, Panilaitis. Id. 4. Plaintiff does not allege in their Complaint that defendant, Panilaitis, acted as the agent, servant or employee of defendant, Bricker. Id. The appropriate responsive pleading was prepared and filed, denying liability and raising various affirmative defenses. (A copy of the responsive pleading is attached hereto and is marked as Exhibit "B"). 6. By order dated July 10, 2008, the Honorable Edgar B. Bayley, granted Defendant, Safe Auto Insurance Company's, Motion for Summary Judgment and decreed that Safe Auto was not required to provide insurance coverage for the instant accident. (A copy of the Order granting Safe Auto's Motion for Summary Judgment is attached hereto and is marked as Exhibit "C"). 7. A police- report confirms that defendant, Panilaitis, was, in fact, operating defendant Bricker's motor vehicle at the time of the alleged accident. (A copy of the police report is attached hereto and is marked as Exhibit "D"). 8. Defendant, Panilaitis, did not at any time material hereto posses a valid drivers license. Id. 9. At no time material hereto, was the defendant, Panilaitis, a permissive driver of defendant Bricker's vehicle. 10. Defendant, Panilaitis, verified and admitted that, at the time of the accident he did obtain permission from defendant Bricker to operate her vehicle. (A copy of the Requests for Admissions and Verification is attached hereto and is marked as Exhibit "E"). 11. The elements of negligence are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. Roche v. Ugly Duckling Car Sales, Inc. et al., 879 A.2d 785, 785 (2005), appeal denied, 587 Pa. 732, 901 A.2d 499 (2006). 12. In order to establish the tort of negligent entrustment, the Restatement (Second) of Torts § 308 provides that "[i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." Donegal Mutual Insurance Co. v. Fackler, 835 A.2d 712, 720 (Pa. Super. 2003), appeal denied, 579 Pa. 703, 857 A.2d 679 (2004) (citing REST. 2d TORTS § 308). 13. Imposition of liability under a theory of negligent entrustment is therefore based upon a permissive use of a thing. Fackler, 835 A.2d at 720. 14. As defendant, Panilaitis, admittedly operated defendant Bricker's vehicle without her knowledge or permission, his actions alone were the sole and proximate cause of the injuries sustained by plaintiff and a cause of action for negligent entrustment cannot stand. 15. Pennsylvania Rules of Civil Procedure 1035 et seq. state that Summary Judgment may be granted where there exists no genuine issue of material fact and the moving parties are entitled to judgment as a matter of law. WHEREFORE; defendant, Bricker, respectfully requests that this Honorable Court enter an Order in the form proposed. EDELSTEIN & STEINBERG, LLP BY: JA L. EbS1 TEIN, ESQUIRE ey4 Atto Defendant, Maryann Bricker DATE: 1 b (Z'11 ° V EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 Attorney for defendant Maryann Bricker JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW MEMORANDUM OF LAW IN SUPPORT OF PARTIAL MOTION FOR SUMMARY JUDGMENT OF DEFENDANT. MARYANN BRICKER A. Matter Before the Court. Before the Court, herein, is Defendant's Partial Motion for Summary Judgment requesting that plaintiff's claim against defendant, Bricker, for negligent entrustment be. dismissed from this corhplaint on the grounds that the operator of the her motor vehicle was a non permissive driver and that she was not negligent in any way. B. Statement of Questions Involved. Should the defendant-movant, Bricker, be liable to a third party for a motor vehicle accident that was caused by an unauthorized driver who operated her vehicle without permission? Suggested Response: No. C. Factual Background. Defendant, Bricker, relies on its well-plead Partial Motion for Summary Judgment and hereby incorporates the same by references as though fully set forth herein at length. This incident arose as a result of an alleged motor vehicle accident that occurred on or about November 18, 2005, at or near the intersection of South Pitt Street and Willow Street, Carlisle, Pennsylvania. (Attached hereto is a copy of plaintiffs Complaint, which is marked as Exhibit "A"). Plaintiffs, James Cavanaugh and Barbara Cavanaugh, allege in their complaint, that Mr. Cavanaugh was involved in a motor vehicle accident with a vehicle owned by defendant Bricker and operated by defendant, Panilaitis, who had permission to be driving said vehicle. Id. Count II of plaintiffs' complaint further alleges that defendant Bricker was negligent in entrusting her vehicle to defendant, Panilaitis. Id. The appropriate responsive pleading was prepared and filed, denying liability and raising various affirmative defenses. (A copy of the responsive pleading is attached hereto and is marked as Exhibit "B"). By order dated July 10, 2008, the Honorable Edgar B. Bayley, granted Defendant, Safe Auto Insurance Company's, Motion for Summary Judgment and decreed that Safe Auto was not required to provide insurance coverage for the instant accident. (A copy of the Order granting Safe Auto's Motion for Summary Judgment is attached hereto and is marked as Exhibit ."C") A police report confirms that defendant, Gordon Panilaitis, was, in fact, operating defendant Bricker's motor.vehicle at the time of the alleged accident. (A copy of the police report is attached hereto and is marked as Exhibit "D"). Defendant, Panilaitis, did not at any time material hereto posses a valid drivers license. Plaintiffs do not allege in their Complaint that Defendant, Panilaitis, acted as the agent, servant or employee of Defendant, Bricker. More importantly, at no time relevant hereto, was the defendant, Gordon Panilaitis, a permissive driver of defendant Bricker's vehicle. Defendant, Panilaitis, admitted, and verified that at the time of the accident he did not have permission from defendant Bricker to be driving her vehicle. (A copy of the Requests for Admissions and Verification is attached hereto and is marked as Exhibit "E"). D. Leval Areument. The law in the Commonwealth of Pennsylvania is very clear. The elements of negligence are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. Roche v. Ugly Duckling Car Sales, Inc. et al., 879 A.2d 785, 785 (2005), appeal denied, 587 Pa. 732, 901 A.2d 499 (2006). In order to establish the tort of negligent entrustment, the Restatement (Second) of Torts § 308 provides that "[i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." Donegal Mutual Insurance Co. v Fackler, 835 A.2d 712, 720 (Pa. Super. 2003), appeal denied, 579 Pa. 703, 857 A.2d 679 (2004) (citing REST. 2d TORTS § 308). Imposition of liability under a theory of negligent entrustment is therefore based upon a permissive use of a thing. Donegal Mutual Insurance Co. v. Fackler, 835 A.2d 712, 720 (Pa.'Super. 2003), appeal denied, 579 Pa. 703, 857 A.2d 679 (2004). In the instant case, Panilaitis admitted and verified that he took the vehicle of defendant Bricker, and operated the same without her knowledge or permission. Therefore, his actions alone were the sole and proximate cause of the injuries sustained by Plaintiff. Accordingly, pursuant to Pa.R.C.P., Rule 1035.2, 42 PA. CONS. STAT. ANN., there is no genuine issue of material fact and the defendant, Maryann Bricker is entitled to judgment as a matter of law. II E. Relief Requested. In light of the fact that there is indisputable evidence in the form of the verification signed by defendant Panilaitis, admitting that he never had permission to operate defendant Bricker's vehicle, and the clear fact that, absent such permission, defendant Bricker could not negligently entrust said vehicle to defendant Panilaitis, there is NO genuine issue of material fact with respect to the involvement of Maryann Bricker in this matter. As such, defendant's Partial Motion for Summary Judgment should be granted. EDELSTEIN & STEINBERG, LLP BY: JAY DEL TEIN, ESQUIRE Atto for efendant, Maryann Bricker DATE: to 2.+1 oY CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Partial Motion for Summary Judgment and Supporting Memorandum of Law was forwarded to the following, by first class mail, postage pre-paid on Friday, October 24, 2008: Paul Schofield, Esquire 905 W. Sprout Road, Suite 105 Springfield, PA 19064 Gary B. Cutler, Esquire ABRAHAMS, LOEWENSTEIN & BUSHMAN Three Parkway 16th & Cherry Streets, Suite 1300 Philadelphia, PA 19102 EDELSTEIN & STEINBERG, LLP BY: JAY L. Attornt LSTEIN, ESQUIRE Defendant, Maryann Bricker DATE: to 44-09 VERIFICATION The averments or denials of facts contained in the foregoing are true based upon the signer's personal knowledge or information and belief. If the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer has knowledge or information sufficient to form a belief that one of them is true. This verification is made subject to the penalties of 18 PA C.S. 4904 relating to unsworn falsification to authorities. JAY L/IVDE),STEIN, ESQUIRE DATE: 1 6/1.M10S1 File No.: 230.050 SEP-21-2006 12:38PM FROM-NELLS Y Y +T1T2496397 T-623 P.003 F-700 JAMES CAVANAUGH AND IN THE COURT OF COMMON PLEAS BARBARA CAVANAUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs . NO. V " V, CIVIL ACTION - LAW GORDON PANILAITIS AND MARYANN BRICKER, Defendants COMPLAINT AND NOW come Plabiti Ts, James Cavanaugh and his wife, BarbarEL -.av,anaugh, by their attorneys, Freeburn 8. Hamilton, and file the following Complaint- I . Plaintiffs, James Cavanaugh and his wife, Barbara Cavanaugh, are adult individuals who reside at 2808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Gord )n Panilaitis, is an adult individual who resk.es Ett 563 F Street, Carlisle, Cumberland { :ounty, Pennsylvania. 3. Defendant, M2uy arm Bricker, is an adult individual who resides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 4. The facts and cncurrences hereinafter related took place an or about November 18, 2005 at appro., imately 8:15 p.m. at or about the intersection of South Pitt and West Willow Stree- s, in the Borough of Carlisle, Cumberland County, Pennsylvania. 5. At or about that time and place, Plaintiff, James Cavanaugh wits driving his automobile eastbound (n West Willow Street, in the Borough Df Carlisle, Cumberland County, Pen.nsylz aria. SEP-21-2006 12:39PM FROM-NELLS S` D +7172496397 - T-623 P.004/012 F-700 6. At or about th it time and place, Defendant, Gordon Ila ailaitis was driving an automobile owned by Defendant, Maryann Bricker, southbour.d on South Pitt Street in the Borough of( arlisle, Cumberland County, Pennsylvania. 7. The intersection of West Willow Street and South Pitt Street: _.s confirolled by a flashing red signal for t affic traveling south on South Pitt Street an d a flashing yellow signal for vehicles travi .ling east on West Willow Street. I 8. Defendant, Gc,rdon Panilaitis, entered the intersection against the red traffic signal when it was not safe to do so and the front of the automobile that he was driving struck the automobile operated by Plaintiff, James Cavanaugh in tl?e left rear. 9. As a result of th s aforesaid collision, the automobile operated by Plaintiff, James Cavanaugh hit a hoia s : on the southeast corner of the intersection. 10. It is believed a id therefore averred that at the time of bae collision, Defendant, Gordon Panilailjs did not have a valid driver's license, and t]Zat lzis license was under suspension, and e spired at that time. 11. It is believed a zd therefore averred that at the time of t ?e collision, Defendant, Gordon Panilait s, was driving the automobile owned by Defendant, I Maryann Bricker, with Ma=1ra an Bricker's permission. 12. By reason of th; aforesaid collision, Plaintiff James Cavanaugh suffered painful and severe injuries )_o his nerves, bones and soft tissues which include, but are not limited to, back, neck, sh ]ulder and hip injuries. 13. By reason of t Ye aforesaid collision and injuries, Plaintif F suffered a heightened possibility that h ; will suffer other or additional injury in the fixture, and claim is made therefore. 2 SEP;21-2006 12:39PM FROM-NELLS °` - +7172496397 - - T-623 P.005/012 F-700 14. The aforesaid. 4 .ollision and injuries suffered by Plaintiff may have aggravated or been aggravate. i by an existing infirmity, condition or disea:;e, resulting in a prolongation or worserEm ; of the injuries and an enhanced risk of fiat ire harm to Plaintiff, and claim is made -[I erefore. 15. By reason of the aforesaid collision and injuries, Plaintiff has been forced to incur liability for reasonal.le and necessary medical tests, medical exam.iaati.ons, medical treatment, medieaiia is, hospitalizations and similar expenses in an effort to diagnose his injuries and to rf store himself to health, and claim is made therefore. 16. Plaintiff has not fully recovered from his injuries and it is reasonably likely that he will incur simila • expenses in the future, and claim is made therefore. IT By reason of the aforesaid collision and injuries, Plaintiff ha, suffered a loss of earnings and earning, rapacity and is entitled to recover the value of the time, earnings and employment bel Lefits he has lost and which she might reasonably have earned in the pursuit of his ox J.inary calling, and claim is made therefore. 18. By reason of the aforesaid collision and injuries, plaintiff hay: suffered a loss or impairment of future: a 3rn.ing capacity, and claim is made therefore. 19. I, BY reason of iftti E aforesaid collision and injuries, Plaintiff .4 ?.s iaucurred incidental costs and expenses the exact amount of which cannot be ascertained at this time, and claim is made there: ore. 20. By reason of tEe aforesaid collision and injuries, Plaintiff has undergone and in the future will underl;o great physical and mental pain and suff,ring, great inconvenience in carrying cut his daily activities, loss of life's pleasures and, enjoyment, and claim is made therefore. 3 SEP:21-2006 12:30PM FROM-NELLS Sr +7172496397 - T-623 P.006/012 F-700 21. By reason of t ie aforesaid collision and injuries, Plainti T has been subjected to severe humilia.lic n, embarrassment, shame, worry and anger. 22. By reason of tae aforesaid collision and injuries, PlairAtiFf has been subjected to severe menUC- 3Lnguish, emotional distress, nervous shock, fright and horror. 23. By reason of t h(! aforesaid collision and injuries, Plaintiff - aal continue to I at mental anguie h, emotional distress, shame, worry and a nger in the endure gro future. 24. By reason of 1 he aforesaid collision and injuries, Plaintiff has been deprived his enjoyment of the pleasures of life. 25. By reason of th, : aforesaid collision and injuries, Plaintiff cot Ltiaues to be plagued by persistent pairs F nd limitation and, therefore, avers that hi--, -?njuries may be of a permanent nature, ca using residual problems for the remainder of his lifetime, and claim is made therefore:. 26. Plaintiffs are ei titled to recover non-economic damages be,,ause at the time of this accident, they v ere insureds under an automobile insurance policy that provided the full tort optima. . COUNT I James Cav=vvgj ?h. Plaintiff v. Gordon Panilaitis. Defendan L 27. Paragraphs 1-2 5 are incorporated herein by reference theroto. 4 SEP; 21-2006 12:40PM FROM-NELLS SC +7172496397 - T-623 P.007/012 F-700 28. The foregoing a ccident and all of the injuries and danaa,g-.s set forth hereinafter suffered by Pla jit iffs, James Cavanaugh and Barbara Cavana:.xgh, are the direct and proximate result o F the negligent, careless, wanton and reckles 3 manner in which Defendant, Gordon Rai ilaitis, operated a motor vehicle as follows: a. In opera :ing the vehicle at an excessive rate of speed under the circumst ances; b. In failing to apply his brakes in time to avoid the colds ion; C. In negbg• :ntly applying his brakes; d. In failirng to observe plaintiffs vehicle on the highway; e. In failing to operate his vehicle in accordance with existing traffic conditi,or s and traffic controls; f. In perms- Ling or allowing his vehicle to strike and coll ide with the vehicle. o ierated by the plaintiff; g. In faili-ag to exercise the high degree of care required cfa motorist entering in intersection; h. In operas ing his motor vehicle at a time when defenc.ant did not have a ci .rrent Pennsylvania operator's license; i. In failirng to drive at a speed and in the manner that would allow defendEw t to stop within the assured clear distance a1ead; j. In failir g to properly observe traffic signals controlling defendar is direction of travel; k. In faiECLg to keep a reasonable look-out for other vehi(les lawfully on the ro 3d; 1. In atte:m pting to enter an intersection when such movement could nog be safely accomplished; m. In failing to yield the right-of-way to traffic al.read r upon the highwE T; n. In oper.at ,ng his vehicle in a manner not consistent wth the road and weat zer conditions prevailing at the time; 5 SQ-21-2006 12:40PM FROM-NELLS Sr 0 +7172496397 - T-623 P.003/012 F-700 o. In fain,,,- to prudently proceed through the intersection so as to avoid ,i eating a dangerous situation for other veb iclets on the highway ; P. In fail cal ; to observe oncoming traffic; q. In proc.:eding through an intersection when such movement could n( t be made in safety; r. In f ainl ; to keep a proper look-out for approaching v ehicles; S. In fail:uil ; to yield the right-of-way to on-coming traffl.c; t. In opora Ling his vehicle so as to create a dangerous situation for other -ve: iicle on the roadway; and U. In fan6--il : to have yielded half of the highway to oncon,in.g traffic. 29. Defendant's m a.duct, as set forth above, was in violation of the Pennsylvania Motor Vehicle, Code, which is intended to protect persons ]w VAIlly on the highway such as P1ain.tiEF, James Cavanaugh, from personal injury, and thus constitutes negligence per ,se. WHEREFORE, Plaintif ; James Cavanaugh, demands judgment ir.L I a.s favour and against DI fendant, Gordon Parulaitis, in an amount in excess of TIJENTY-F THOUSAND & 00/100 ($2,50100.00) DOLLARS, exclusive of interest and .,osts and in excess of any jurisdictional a nount requiring compulsory arbitration. CQUNT n James Cavanattll •h Plaintiff v. Maryann Bricker Defendant 30. Paragraphs 1•-2! are incorporated herein by reference therete. 6 SEA-21-2006 12:40PM FRONT-NELLS V-- k +7172496397 - T-623 P.009/012 F-T00 31. The foregoing, accident and all of the injuries and dama g,-s set forth hereinafter suffered by Plaint iffs, James Cavanaugh and Barbara Cavana agh, are the direct and proximate resin-: )f the negligence of Maryann Bricker in e:n rusting her automobile to Defendant, Goi Ion Panilaiiis. WHEREFORE, Plain-t:di, James Cavanaugh, demands judgment in his favor and i against Defendant, Gordon Panilaitis, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,( 00.00) DOLLARS, exclusive of interest and ssosts and in excess of any jurisdictional -ru ;count requiring compulsory arbitration. COUNT III James Cavanaw h, Plaintiff v. Maryann Bricker. Defendant 32. Paragraphs 1-31 are incorporated herein by reference thereto 33. Pursuant to §1574, Defendant, Maryann Bricker, is jointly and severally liable with Dcefend.a nt, Gordon Panilaitis, for any damage Call Lsed by the negligence of Gordon Panilaiti s. WHEREFORE, Plaint?il. James Cavanaugh, demands judgment in b is favor and against Defendant, Gordo:ra Paniilaitis, in an amount in excess of TV FENl'Y-RIVE THOUSAND & 00/100 ($25,(00.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional W count requiring compulsory arbitration. 7 SEA-21-2006 12:40PM FROM-NELLS +7172496397 - T-623 P-010/012 F-700 COQ NT IV - LOSS OF CONSORTIUM Barbara Cavani a gh, Plaintiff v. Gordon Panilaitis, ]Defend.u Lt 34. Paragraphs 1-3 3 are incorporated herein by reference thereto. 35 As a result of the aforementioned injuries suffered by her husband, James Cavanaugh, Plaintiff, Barbara Cavanaugh, has been and may in the future be deprived of the aid, assist m -c, comfort, care, companionship, society an(I consortium of her husband, all of which vill be of great detriment, and claim is made: herefore. 36. As a result of the aforementioned injuries suffered by her husband, Plaintiff, Barbara CavanFtu gh, has incurred expenses and/or liability for the reasonable and necessary r iedical tests, medical examinations, medical treatment, medications, hospitalizatiom and similar expenses in an effort to diagnos:? his injuries and to restore him to health, and claim is made therefore. WHEREFORE, Plaind f, Barbara Cavanaugh, demands judgment in ].aer favor and against Defendant, Gor Ion Panilai•tis, in an amount in excess of 'r,&TENTY=FIVE THOUSAND & 00/100 ($22,15,)00.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional a mount requiring compulsory arbitration. C01 NT V - LOSS OF CONSORTMM Barbara CavawLx gh•. Phdntifi*f v. Maryann Bricker, Defendant 37. Paragraphs 1-3 5 are incorporated, herein by reference thereto.. 8 S6P-21-2006 12:40PM FROM-NELLS 5`_1 +7172496397 - T-623 P-011/012 F-700 3$. As a result of the aforementioned injuries suffered by h?r husband, James Cavanaugh, Plaintiff, Barbara Cavanaugh, has been and may in the future be deprived of the aid, assistan(e, comfort, care, companionship, society ark. consortium of her husband, all of which i All be of great detriment, and claim is made 1 herefore. 39. As a result of the aforementioned injuries suffered by hi!r husband, Plaintiff, Barbara Cavanaiu;h, has incurred expenses and/or liability for the reasonable and necessary n .edical. tests,, medical examinations, medical treatment, medications, hospitalizations and similar expenses in an effort to diagnose his injuries and to restore him to health, and claim is made therefore. WHEREFORE, Plaintif ; Barbara Cavanaugh, demands judgment :n h.er favor and against Defendant, Marl ann. Bricker, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,( 00.00) DOLLARS, exclusive of interest and costs, and in excess of any jurisdictional az •iount requiring compulsory arbitration. Respectfully Submitted, FREESUItN & HAMILTON By: Ri6hald E. Freeburn, Esq I.D. No. $0965 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 Date: 8/28/06 Counsel for Plaintiffs 9 v z p "' "2 F i "'Way 6) A: J1-V0 Qa EDELSTEIN El BY: JAY L. EDELSTE , E UIRE Identification No.: 3022 230 South Broad Street, Philadelphia, PA 1,02 EB&S File LLP. (215) 893-93 310 Fax: (215) f5,2130.05 Attorney Maryann JAMES CA AUGH AND COURT OF COMMON PLEAS BARBARA C GH CUMBERLAND COUNTY, PENNSYLV '? p VS. NO.: 06-5016 CIVIL ACTION-LAW - I GORDON PANILAITIS AND - c MARYANN BRICKER ANSWER OF DEFENDANT, MARYANN BRICKER TO PLAINTIFFS' COMPLAINT IN CIVIL ACTION WITH NEW MATTER AND NEW MATTER CROSSCLAIM AND NOW COMES Defendant, Maryann Bricker by and through their attorneys, Edelstein, Brascetta & Steinberg, LLP answering plaintiffs' Complaint in Civil Action with New Matter and New Matter Crossclaiiri as follows: 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 2. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 3. Admitted as stated. 4. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 5. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph concerning events or conditions or the allegations pertaining to identity, ownership, possession or control of the instrumentality involved and/or the allegations of agency or authority. Strict proof thereof is demanded if deemed relevant at the time of trial. All other averments in the aforesaid paragraph are specifically denied. Strict proof thereof is demanded if deemed relevant at the time of trial. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to forma belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 8. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 9. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph concerning events or conditions or the allegations pertaining to identity, ownership, possession or control of the instrumentality involved and/or the allegations of agency or authority. Strict proof thereof is demanded if deemed relevant at the time of trial. All other averments in the aforesaid paragraph are specifically denied. Strict proof thereof is demanded if deemed relevant at the time of trial. 10.. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 11. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph concerning events or conditions or the allegations pertaining to identity, ownership, possession or control of the instrumentality involved and/or the allegations of agency or authority. Strict proof thereof is demanded if deemed relevant at the time of trial. All other averments in the aforesaid paragraph are specifically denied. Strict proof thereof is demanded if deemed relevant at the time of trial. 12. Denied. After reasonable investigation, answering defendant. is without knowledge or information sufficient to form a belief as to the truth of the averments in the. aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 13. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the I aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 14. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time.of trial. 15. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 16. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 17. Denied. After reasonable investigation, answering defendant is without ' j knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 18. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 19. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to forma belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 20. Denied. After reasonable investigation, answering'defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 21. Denied. After reasonable investigation, answering defendant is without owledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. i " I? 22. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 23. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant ai the time of trial. 24. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form. a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 25. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 26. Denied. After reasonable investigation,. answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the. aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. - COUNT ONE 27. Answering defendant hereby incorporates by reference answers to paragraphs one through 26 inclusive as though fully set forth herein at length. 28. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the 'aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. All allegations with regard to negligence, carelessness, wanton and reckless. behavior is specifically denied. Strict proof thereof being demanded if deemed relevant at the time of trial. 29. Denied. After reasonable investigation, answering defendant is without _ knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. COUNT TWO 30. Answering defendants hereby incorporates by reference. answers to paragraphs one through 29 inclusive as though fully set forth herein at length. 31.. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. It is specifically denied that defendant, Maryann Bricker was negligent, careless and/or reckless in any manner whatsoever. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann. Bricker, demands judgment in her favor. COUNT THREE 32. Answering defendants hereby incorporates by reference answers to paragraphs one through 31 inclusive as though fully set forth herein at length. 33. Denied. After reasonable investigation; answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. It is specifically denied that defendant, Maryann Bricker was negligent, careless and/or reckless in any manner whatsoever. Strict proof thereof is demanded if deemed relevant at the time of trial: II WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. 38. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. 39. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in the aforesaid paragraph. Strict proof thereof is demanded if deemed relevant at the time of trial. WHEREFORE, Defendant, Maryann Bricker, demands judgment in her favor. NEW MATTER 40. Plaintiff s Complaint in Civil Action fails to state a cause of action against Defendant, Maryann Bricker. 41. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Comparative. Negligence Act and the Doctrine of Assumption of the Risk. 42. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Financial Responsibility Act. 43. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Uninsured Motorist Act. 44. Plaintiff's Complaint in Civil Action is barred and/or limited pursuant to the Pennsylvania Worker's Compensation Act. 45. Plaintiff's Complaint, in Civil Action fails for lack of proper jurisdiction and venue. 46. Plaintiff's injuries, if any, were caused by unknown third persons. 47. Plaintiff's Complaint in Civil Action is barred pursuant to the applicable Statute of Limitations. 48. Plaintiff was contributorily negligent as a matter of law. - 49. At all times. relevant hereto, defendant, Gordon Panilaitis was a non-permissive user of defendant, Maryann Bricker's vehicle taking such said vehicle, without her permission and without her knowledge, while she was sleeping. Strict proof to the contrary is demanded if deemed relevant at the time of trial. WHEREFORE, Answering Defendant, Maryann Bricker demands judgment in her favor. NEW MATTER CROSSCLAIM PURSUANT TO PA. R.C.P: 2252(4) JOINING f GORDON PANILAITIS AS ADDITIONAL DEFENDANTS AND NOW comes Defendant, Maryann Bricker, pursuant to Pa. R.C.P. 2252(d), asserting that Co-Defendant, Gordon Panilaitis is alone liable, jointly and severally liable or liable over to Answering Defendant on the cause of action declared upon in Plaintiff's Complaint and is hereby severed and joined as an additional defendant to this action. WHEREFORE, Answering Defendant, Maryann Bricker demands judgment in her favor. EDELSTEIN, BRASCETTA & STEINB ERG, LLP BY: , ESQM- nt, Maryann VERIFICATION The averments or denials of facts contained in the foregoing are. true based upon the signer's personal knowledge or information and belief. If the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to' ascertain which of the inconsistent averments are true, but signer has . knowledge or infoiination sufficient to form a belief that one of them is true. This verification is made subject to the penalties of 18 PA C.S. 14904 relating to unsworn falsification to authorities. DATE: oak of . f Borough of Carlisle Carlisle Police/Accident Exchange of Information Form ?°ood¢aV'LI Incident 26,26-11- 183 1 Date h 1f LQ5 Location /^r%• 3 f7,r.Jr wILL&wS7-- Officer f<bd'N-iL'?D V Date I" atya$Badge 17 Time Occurred Z Primary Rd - Pa rrf- S--r- Speed 2 ,S T/C/D/ S-rv of Lanes Z. - Intersecting Rd 6JW < « 5'l - Speed 2S T/C/D/ A6, 2 # of Lanes Z Unit # 1 Vehicle Registration L-P/L--: Cl -?'r State Pf Vehicle Owner&1Q4,v!`J K(Ue- CL-9-Address zz3 F S C4k1(6(i . P onZ?S. 5a°y 7 Year s Make 64-D 94d'j Ioor R1 --b VIN FM f?u j q T6FaA-p)y?Z Operator c?RO C Prj1 L )a i -n S OLN y g d6?-DOB ?` 1S State Address ?? fS"? C is r one A/B Insurance Co. `? T6 Policy # 49+dQ I1 r1o a'A Co. Phone Occupant Unit # Name DOB S/B A/B Address Phone Seat Position Witness(es) 16 Unit # ?- Vehicle Registration 5 3 ? ? State T 4 O'd Vehicle Owner-l-4- Es C'4v?A+v0 ddress 31$ -'j V- Phone .(7/-) ZYI-6 ms's , ,a 'e / Year ? ?- Make Color 944C,< VIN /GXe/X52-K23- L,YPZt/a/ Operator J A-,,% es w I LL142- C I v 4 AJA (6 4 OLN 73 gS4,$70 DOB 10 z 120 State 704 Address 315 M Phone -Z ?1- CA-4 6-s f of 3 A/B Insurance Co. L14tS"Y Al jragL Policy # ?a(- "20,V'13ze3`?Co Phone 2840 - Occupant Unit # Name ?'? ?2 jV?,??'/E 4 4 6 H DOB a S- ? A/B Address Phone Seat Position ? Witness(es) Additional Information NOTICE: Copies of accident reports are available by mail only, unless emergency circumstances prey Enclose a check or money order In the amount of $15.00 and send to: Carlisle Police Department,ariisie, PA 17013, (717) 243-525 (Please allow seven (7) daysTTr processing and return of accident form) KReportable O Carlisle Police Department Crash Reportbiagram r Crash # Foo o s 7 a2 incident # .ZoOLD 11- 00 8 7-2. (CAR) Agency Code: (21402) Date ! 11 is 10.5 Arrival Time 2-6?-0 officer IC.E N OL 0 Badge 2---7_ N 1 T'(' T- ,?v 6 t t D 5z' r I-i White Copy - Penn DOT Canary Copy - Police Records METRO,' THE HARRISBURG P A POLICE INFORMATION RESOUF-- _ SYSTEM (CRSIPINC) PAGE: 1' CRASH REPORT 11/19/05 MJK5 CARZ CRASH NUMBER: F0005787 ----------------- ----- - INCIDENT NUMBER: 20051100831 --------- CAR CASE CLOSED: Y - . AGENCY: 21402 CARLISLE ----------------------- ----------- ----------- DISP-TM: 2018 ARRV-TM: 2020 PATROL-ZN: 300 PRECINCT : 240 LINCOLN ST INV-DT: 11-18-2005 INVESTIGATOR: KENNEDY, MATTHEW J BADG: 0027 APP-DT: 00-00-0000 REVIEWER: BADG: 0000 COUNTY: 21 CUMBERLAND MUNICIPALITY: 402 CARLISLE CRS-DT: 11-18-2005 TM: 2018 #UNIT: 2 ##PEOP: 4 #INJ: 2 #KILL: REPORTABLE: Y NOTIF HI WY MAINT: N PENNDOT PROP: N SCH BUS RELATED: N SCH ZON RELATED: N FOLLOW UP: Y CITY PROP DAM: Z CRASH DESC: 4 REL TO RDWY: 1 ILLUM: 3 WEATHER: 1 RDWY SURF COND: 0 INTERS TYP: 01 SPEC LOC: 0 SPEC JURIS: RDWY SURF TYPE: PRINC RD - CNTY: STR NM: INSEC RD - CNTY: STR NM: LANDMARKI - RT## : STR NM: LANDMARK2 - RT#: STR NM: 21 RT#: SEG: S PITT ST ST 21 RT#: SEG: W WILLOW ST ST MILEPOST: 0000 MILEPOST: 0000 #LNS: 02 SPD LIM: 25 HOUSE#: #LNS: 02 SPD LIM: 35 SEG MARKER: DIST FR CRASH - FT: SEG MARKER: ORIENT: RT ORIENT: RT SIGN: ORIENT: MI: ORIENT: S S W 4 TRAP CONTROL DEVICE TYPE: 1 FUNCTIONING: 3 WORK ZONE - TYP: 0 LOC: SPEED LIM: WORKERS PRES: LN CLOS: RD CL/DETOUR: SHLD/MED WK: MOVING WK: FLAGGER: OTHER: LANE CLOSED DUE TO CRS: 0 DIRECT: TRAF DETOUR: EST TM CLOSE: FIRST HARMFUL EV: 02 UN#: 01 MOST HARMFUL EV: 02 UN##: 01 ENV/RDWY FACTORS: 00 PRIME FACTOR: D 09 UN##: 01 EMERGENCY TRANSPORT - EMS AGENCY: GOODWILL CO 40 MED FACILITY: N/A 0 ON 11/18/2005 AT 2021 HRS, I ARRIVED AT THE SCENE OF A REPORTABLE AUTO ACCIDENT. UNIT##2 WAS OFF THE ROAD AND STOPPED UP AGAINST A HOUSE. UNIT#2 WAS DRIVEN BY JAMES CAVANAUGH AND HIS TWO DAUGHTERS, COURTNEY AND HAYLEY, WERE IN CHILD SEATS IN THE BACK. THEY COMPLAINED OF ABDOMINAL PAIN, SO AN AMBULANCE WAS CALLED. UNIT#1 WAS DRIVEN BY GORDON PANILAITIS. HE DRIVER'S LICENSE WAS SUSPENDED (DUI RELATED) AND EXPIRED. GORDON WAS TRAVELING SOUTH ON S PITT ST. THE INTERSECTION AT S PITT ST AND W WILLOW ST IS CONTROLLED BY FLASHING LIGHTS. S PITT ST TRAFFIC HAVE A FLASHING RED SIGNAL AND W WILLOW ST TRAFFIC A FLASHING YELLOW. GORDON SAID THAT HE THOUGHT IT WAS A FOUR WAY STOP AND WENT THROUGH. HE STATES THAT HE WAS SURPRISED WHEN A VEHICLE TRAVELING WEST ON W WILLOW ST ALMOST HIT HIM. HE DID NOT SEE CAVANAUGH, WHO WAS TRAVELING EAST ON W WILLOW ST. CARAVNAUGH SAW GORDON AND TRIED TO AVOID, BUT GORDON HIT HIM IN THE LEFT REAR QUARTER AND CAVANAUGH SWERVED AND HIT THE HOUSE ON THE SOUTH EAST CORNER OF THE INTERSECTION. NO DAMAGE WAS DONE TO THE HOUSE. CAVANUAGH'S DAUGHTER'S WERE CHECKED BY EMT'S AND WERE FOUND TO BE OKAY. THEY WERE NOT TRANSPORTED. GORDON PANILAITIS IS BEING CITED FOR DRIVING UNDER *10 METRO.' THE HARRISBURG AF- POLICE INFORMATION RESOURG^.SYSTEM (CRSIPINC) PAGE: 2. CRASH REPORT 11/19/05 MJK5 CARZ CRASH NUMBER: F0005787 INCIDENT NUMBER: 20051100831 CAR ------------------------------------------------------------------------------ SUSPENSION (DUI RELATED); DRIVING WITHOUT A LICENSE AND DUTIES AT A FLASHING SIGNAL. ----------------------------------------------------------------------------- UNIT NUMBER: 01 TYPE: 01 COMMERCIAL VEH: N OWNR NAME: BRICKER MARYANN 7172495844 OWNR ADDR: 563 F ST CARLISLE PA 17013 VIN: 1FMBU14S5FUA80892 YR: 1985 MAKE: 12 LIC PLATE: EPF5188 PA TRAV SPD: 999 INS CO, PO, PH: SAFE AUTO PA00118108A-2 9999999999 TOW TO,BY,PH: # TRL UNITS: 0 TYP UNIT: TAG NO,YR,ST: TYP UNIT: VEHICLE COL: 99 TYP: O1 INIT IMP PT: 12 DAMAGE: 1 DIR ALCOH,DRG SUSP: 1 TEST TYP: 0 OWNER/DVR CD: 02 DVR PRESENCE: VIOLATION CD: 75 3114 Al VIOLATION CD: 75 1543 B HARM EVENT 1: 02 L/R: MHE: Y M HARM EVENT 2: L/R: MHE: U'I HARM EVENT 3: L/R: MHE: U'I HARM EVENT 4: L/R: MHE: UZ VEH FAILURES: 00 TAG NO,YR,ST: SPEC USAGE: 00 TRAV: S MOVEMENT: RESULT: 1 PEDESTRIAN CHARGED: Y CHARGED: Y IL POLE#: IL POLE#: IL POLE#: IL POLE## : (45F1) DVR RESTRICTIONS COMPL: DVR ENDORSEMENT COMPL: AVOIDANCE MANEUVER: UNDER RIDE INDICATOR: DRUG TEST TYPE: RESULTS: UNIT NUMBER: 02 TYPE: 01 COMMP OWNR NAME: CAVANAUGH OWNR ADDR: 315 N HANOVER ST VIN: 1G2HX52K2S4248261 YR: LIC PLATE: GCH5396 PA TRAV INS CO,PO,PH: LIBERTY MUTUAL TOW TO,BY,PH: # TRL UNITS: 0 TYP UNIT: RCIAL VEH: N DRIVER ACTION 1: 09 DRIVER ACTION 2: DRIVER ACTION 3: DRIVER ACTION 4: PEDEST ACTION DVR LICENSE COMPL: EMERGENCY USE: PRINCIPLE IMPACT PT: JAMES CARLISLE PA 17013 1995 MAKE: 22 SPD: 999 A06-288-132035-70 TAG NO,YR,ST: TAG NO,YR,ST: SPEC USAGE: 00 TRAV : E MOVEMENT : RESULT: 1 PEDESTRIAN CHARGED: TYP UNIT: VEHICLE COL: 99 TYP: 01 INIT IMP PT: 07 DAMAGE: 1 DIR ALCOH,DRG SUSP: 1 TEST TYP: 0 OWNER/DVR CD: 01 DVR PRESENCE: VIOLATION CD: HARM EVENT 1: 11 L/R: MHE: HARM EVENT 2: L/R: MHE: HARM EVENT 3: L/R: MHE: HARM EVENT 4: L/R: MHE: VEH FAILURES: 00 (45F1) DVR RESTRICTIONS COMPL: AVOIDANCE MANEUVER: DRUG TEST TYPE: Y UTIL POLE#: UTIL POLE#: UTIL POLE#: UTIL POLE#: ROLE: 1 POSITION: 01 01 GRAD: 3 ALIGNM: 1 PHYSICAL COND: 0 SIGNAL: PED LOC: W 7172416111 8005261547 ROLE: 2 POSITION: 01 01 GRAD: 1 ALIGNM: 1 PHYSICAL COND: 0 SIGNAL: PED LOC: DRIVER ACTION 1: 00 DRIVER ACTION 2: DRIVER ACTION 3: DRIVER ACTION 4: PEDEST ACTION DVR LICENSE COMPL: EMERGENCY USE : PRINCIPLE IMPACT PT: DVR ENDORSEMENT COMPL: UNDER RIDE INDICATOR: RESULTS: METRO+ THE HARRISBURG K -:A POLICE INFORMATION RESOU? SYSTEM (CRSIPINC) PAQt: 3 CRASH REPORT 11/19/05 MJK5 CARZ CRASH NUMBER: F0005787 INCIDENT NUMBER: 20051100831 CAR ------------,------------------------------------------------------- * * * * * * * * * * * * PEOPLE INFORMATION * * * PERSON TYPE: 1=DRIVER 2=PASSENGER 7=PEDESTRIAN 8=OTHER 9=UNKNOWN INJ SEVERITY: O=NONE 1=KILLED 2=MAJOR INJ 3=MODERATE 4=MINOR 9=UNK UNIT NO: 01 PERSON NO: 01 TYP: 1 INJ SEVERITY: 0 DOB: 19500115 SEX: M NAME (L,F,M,S): PANILAITIS GORDON C ADDRESS: 563 F STREET PHONE: 7172495844 CARLISLE PA 17013 DRIVER LICENSE: PA 18849062 SEAT POSN: 01 SAFE-EQ1,2: 99 99 EJECT: 0 EJ-PATH: 0 EXTRIC: 0 TRANSP: N UNIT NO: 02 PERSON NO: 01 TYP: 1 INJ SEVERITY: 0 DOB: 19691024 SEX: M NAME (L,F,M,S): CAVANAUGH JAMES W ADDRESS: 315 N HANOVER ST PHONE: 7172416111 CARLISLE PA 17013 DRIVER LICENSE: PA 23856870 SEAT POSN: 01 SAFE-EQ1,2: 99 99 EJECT: 0 EJ-PATH: 0 EXTRIC: 0 TRANSP: N UNIT NO: 02 PERSON NO: 02 TYP: 2 INJ SEVERITY: 4 DOB: 19990128 SEX: F NAME (L,F,M,S): CAVANAUGH HAYLEY ADDRESS: 315 N HANOVER ST PHONE: 7172416111 CARLISLE PA 17013 SEAT POSN: 06 SAFE-EQ1,2: 04 00 EJECT: 0 EJ-PATH: 0 EXTRIC: 0 TRANSP: N UNIT NO: 02 PERSON NO: 03 TYP: 2 INJ SEVERITY: 4 DOB: 19950430 SEX: F NAME (L,F,M,S): CAVANAUGH COURTNEY ADDRESS: 315 N HANOVER ST PHONE: 7172416111 CARLISLE PA 17013 SEAT POSN: 04 SAFE-EQ1,2: 03 99 EJECT: 0 EJ-PATH: 0 EXTRIC: 0 TRANSP: N •(DISIPINC) MJK5 UCFPCARZ DISPATCH INCIDENT: 20051100831 CAR PAGE: 1 CALL TYPE: TRAFFIC ACCIDENT - NO INJURY LOCATION GRID CCL --------- UCR ----- IPG ------ DISPO PRI ------------- ----------- S PITT ST ------------ W ------------ WILLOW ST ---------- 0300 3 01 0000 Y 11 4 ALARM CTAK DPAT VEH-REGISTRAT MAKE DATE RECV -- DISP ----- ARRV ------ CLR TOTT REP ------------- ----------- N JSS2 ------------ JSS2 ------------ ---------- ---- 20051118 -- 2018 2018 2020 2117 0059 B UNIT BADG OFFICER -- ---- ----- ------ ------------- ----------- 27 27 ------------ KENNEDY ------------- MATTHEW ------------ J 20051118 2018 2020 2117 05 5 KUR.TZ JEFFREY D 20051118 2055 2055 2117 NAMES: COUNTY (R) 717 243 4121 PANILAITIS GORDON C (A) 000 000 0000 UNIT#1 CAVANAUGH JAMES (0) 000 000 0000 UNIT#2 COMMENTS: COUNTY CALLED TO REPORT AN ACCIDENT AT W WILLOW AND S PITT. PTLM 27 ON CALL AMBULANCE DISPATCHED 2024 HRS UNIT#1, DRIVEN BY GORDEN PANILAITIS, RAN A STOP SIGN AND STRUCK UNIT#2. UNIT#2, DRIVEN BY JAMES CAVANAUGH. CITING PANILAITUS, DUS AND STOP SIGN. SEE REPORT. (L'-W 10 (, .. SAFE AUTO INSURANCE IN THE COURT OF COMMON PLEAS OF COMPANY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS AND MARYANN BRICKER, DEFENDANTS 06-6404 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT. J. ORDER OF COURT AND NOW, this today of July, 2008, IT IS ORDERED that the motion of plaintiff, Safe Auto Insurance Company, for summary judgment, IS GRANTED. Judgment is entered in favor of plaintiff, Safe Auto Insurance Company, and against the defendants, Gordon Panilaitis and Maryann Bricker. It is DECREED that Safe Auto Insurance Company is not required to provide insurance coverage for the subject accident. By the Cg?rrt, '/ rx Edgar B. Bayley,'J. ' rRUL COPY FROM RECORD Testimony wtweof, I hero unto sect my hano A the sea! of said C? ?t Carltsl?r n!d IA & .6 . _ ! Jeffrey C. Catanzarite, Esquire For Plaintiff Jeffrey B. Rettig, Esquire For James Cavanaugh and Barbara Cavanaugh Maryann Bricker, Pro se 563 F Street Carlisle, PA 17013 Gordon Panilaitis, Pro se 563 F Street Carlisle, PA 17013 :sal r f 4? EDELSTEIN BRASCETTA & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 EB&S File No. 230.050 JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT GORDON PANILAITIS Defendant, Maryann Bricker, requests defendant Gordon Panilaitis, within 30 days after the service of this request, to make the following admissions for the purpose of this action only subject to all punitive objections to admissibility which maybe interposed at trial. Defendant Maryann Bricker owned a 1985 Ford Bronco, license plate number # EPF5188, on November 18, 2005 when the incident in the above claim occurred. 2. Defendant Gordon Panilaitis was operating the 1985 Ford Bronco, license plate number # EPF5188, on November 18, 2005 at the time of the above claimed incident and did not have defendant Maryann Bricker's permission to be operating the motor vehicle at said time. EDELSTEIN BRASCETTA & STEINBERG, LLP DATE: Attorney for defendant(s) Maryann Bricker BY: JAY JELSTEIN, ESQUIRE for Defendant, Bricker 'r : + VERIFICATION The averments or denials of facts contained in the foregoing are true based upon the signer's personal knowledge or information and belief. If the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer has knowledge or information sufficient to form a belief that one of them is true. The language of this pleading is that of counsel and not of signer. This verification is made subject to the penalties of 18 PA C.S.A. §4904 relating to unsworn falsification to authorities. (Signature) I PA A- ( ease print name DATE: EDELSTEIN & STEINBERG, LLP. BY: JAY L. EDELSTEIN, ESQUIRE Identification No.: 30227 230 South Broad Street, Suite 900 Philadelphia, PA 19102 (215) 893-9311 Fax: (215) 893-9310 E&S File No. 230.050 Attorney for defendant Maryann Bricker JAMES CAVANAUGH AND BARBARA CAVANAUGH Vs. GORDON PANILAITIS AND MARYANN BRICKER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: 2. Defendant, Maryann Bricker's Partial Motion for Summary Judgment (a) Counsel for Plaintiff: Paul Schofield, Esquire 905 W. Sprout Road, Suite 105 Springfield, PA 19064 (b) Counsel for Defendant: Jay L. Edelstein, Esquire Edelstein & Steinberg, LLP 230 South Broad Street, Suite 900 Philadelphia, PA 19102 3. I will notify all parties in writing within two days that this case has been listing for argument. 4. Argument Court Date: February 4, 2009. JAY L. EDELS EIN, ESQUIRE DATE: 12 - $ - o $ Attorney for de endant, Maryann Bricker s' an I 'µ5 C3 I t- JAMES CAVANAUGH AND BARBARA CAVANAUGH VS. GORDON PANILAITIS AND MARYANN BRICKER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 06-5016 CIVIL ACTION-LAW ORDER 2,40 AND NOW, to wit, this day of fil n! !, , it is hereby Ordered and Decreed that Defendant, Maryann Bricker's Partial Motion for Summary Judgment is granted on the grounds that Defendant Panilaitis was a non permissive driver of Defendant Bricker's vehicle, and as such, Defendant Bricker did not negligently entrust her vehicle to Defendant Panilaitis. It is further Ordered and Decreed that Summary Judgment is granted in favor of. Defendant, Maryann Bricker dismissing plaintiff s claim for negligent entrustment, with prejudice. BY THE COURT: BY: J. w 5314 VINYAIASNN: d ' Z =8 Nei S 833 A VIUNOi IObd 3W. JO 3?! to