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HomeMy WebLinkAbout02-2352 PULEO 8, D'EMILIO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 i610 SENTRY PARKWAY, SUITE 210 UE BELL, PA 19422 0) 941-3600 THIS IS AN ARBITRATION MATTER ATTORNEY FOR PLAINTIFF ~'~PIRE-FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC. 13810 FNB PARKWAy OMAHA, NE 68154-5202 VS. CHARLES SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17055 AND AIMEE SWANK AJK/A AMY SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17055 NOTICE YOU have been sued In court. If you wish to defend against the claims set forth in the following pa es within twon 20 g , you must take action ty ( ) days after this com la n served, by entering a written P t and notice are attorney and illin Inwri appearance personagy or by objections to thegClalms t-I~gf~Wlr~t h _t~_e.CCOurt your defenses or that if you fall to do so the c-'~t~ against you. You are warned Judgment may be entered ..... _.may p.ro ..~ed without u and a further notice for any money claimed In the Complaint or for any °therclalmorreliefrequeetadbytheplalnflff. 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 C ' GO TO OR I~ELEPHONE THE {31=l=l~,= - ANNOT AFFORD ONE, FIND ...... ~ET FORTH BELOW TO OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 COMMON PLEAS COURT OF CUMBERLAND COUNTY ClVIL ACTION AVISO dLeefehnac~edre~r~n~a:deas~,~sad~Srted en la corte. SI ustad .u ere sigulentes, usted tiene ~n2andas expuestas ee las paglnas la demanda y la n o tiff cea(-;!10o)n .d] ,a,s- .d-eJ ~a.zO a partir de la fech, de de su persona. Sea avleedo qua si usted n corte tomara matilda o se deflende la espedldo en la peflcion de d---- ~ q'. queJa o allvlo qua dlnero sue Propledadee o otros detach PARA PAGAR TAL ~;;vl~,,~O-T-IENE EL DINERO SUFICIE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE USTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT' S INC., Plaintiffs, GEORGE SWANK AND AIMEE SWANK a/k/a AMY SWANK, Defendants. : COMMON PLEAS COURT OF : CUMBERLAND COUNTY : No. 02-2352 Civil Term : CIVIL ACTION NOTICE TO PLEAD To; Empire Fire & Marine Insurance Company as subrogee of Forklift's Inc. c/o Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 You are hereby notified to file a written response to the enclosed Defendants' Answer with New Matter within 20 days of service hereof or a judgment may be entered against you. Respectfully submitted, LAW OFFICES OF ANNA WALDHERR Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055-6912 (717) 691-2063 Counsel for Defendants EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF F ' ORKLIFT S INC., Plaintiffs, GEORGE SWANK AND AIMEE SWANK a/k/a AMY SWANK, Defendants. COMMON PLEAS COURT OF CUMBERLAND COUNTY No. 02-2352 Civil Term CIVIL ACTION DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND COUNTERCLAIM AND NOW, come Defendants George Swank and Aimee Swank, by and through their attorney, John C. Swartz, Jr., Esquire, and file the following Answer with New Matter and Counterclaim by averring as follows: 1. Denied. After reasonable investigation, answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph 1 of Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial. 2. Admitted. 3. Denied. The averments of paragraph 3 state conclusions of law to which no responsive pleadings are necessary. By way of further response, it is specifically denied that Aimee Swank was ever employed or operating as a servant of Defendant George Swank. 4. Denied. After reasonable investigation, answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph 4 of Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial. 5. Denied. After reasonable investigation, answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph I of Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial. 6. The averments of paragraph 6(a) through (n) inclusive state conclusions of law to which no responsive pleadings are necessary, and therefore, are denied and specific proof thereof is demanded at trial. WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff, together with costs and other such relief this Court deems just and appropriate. DEFENDANTS' NEW MATTER 7. The averments of paragraph 1 through 6 of Defendants' Answer are incorporated herein as if set forth more fully and at length. 8. Plaintiffs causes of action alleged are barred in whole or in part by the applicable Statute of Limitations. 9. Plaintiffs causes of action alleged are barred in whole or in part by the application of the Doctrine of Contributory Negligence as may be applied to the facts disclosed in discovery. 10. Plaintiffs causes of action alleged are barred in whole or in part by the Pennsylvania Comparative Negligence Statute as may be applied to the facts disclosed in discovery. 11. Plaintiffs causes of action alleged are barred in whole or in part by the application of the Doctrine of Assumption of the Risk as may be applied to the facts disclosed in discovery. 12. Plaintiffs' causes of action alleged and any damages claimed by the Plaintiffwere caused by individuals and/or entities over which Answering Defendants had no control or right to control. 13. Any injuries or damages sustained by Plaintiff were not proximately caused by any conduct of the Answering Defendant. 14. Plaintiffs claims are barred in whole or in part, by the Pennsylvania Motor Vehicle Financial Responsibility Law. 15. Answering Defendants plead the defense of last clear chance rule. 16. Defendant Amie Swank was not operating said vehicle in the course and scope of any employment for Defendant Charles "George" Swank. WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff, together with costs and other such relief this Court deems just and appropriate. COUNTERCLAIM 17. The averments of paragraphs 1 through 16 are incorporated herein as if more fully set forth and at length. 19. At the time of the subject accident, an employee of Plaintiff Forklift's, Inc. driver, Dale McClure, was operating the subject vehicle in the course and scope of his employment with Forklift's, Inc. 20. Plaintiff Forklift's Inc. is vicariously liable for the negligence and actions of its driver regarding this incident, who was operating said vehicle in the course and scope of his employment with Forklift, Inc. 21. The said occurrence was due to the negligence of Plaintiff Forklift's, Inc. and its employee as follows: a. Failure to have motor vehicle and adequate control; b. Operating the vehicle at an excessive rate of speed; c. Failure to apply brakes in time to avoid a collision; d. Failure to obey all traffic controls; e. Operating vehicle in a reckless and negligent manner for the conditions as they existed at the time of the accident; f. Permitting his vehicle to strike and collide with the vehicle of the Defendant; g. Failure to exercise reasonable degree of care required of a motorist on the roadway at the time of the incident; h. Failure to operate his vehicle in a speed and manner which would allow him to stop within the assured clear distance ahead; i. Failure to keep a reasonable lookout for other vehicles lawfully on the roadway that may be merging or turning left at the intersection; 3 Operating his vehicle without due regards for the rights, safety and position of the Defendant's vehicle in an attempt to overtake traffic on Sporting Hill Road; k. Failure to yield the right-of-way; and 1. Violation of the various statutes and laws of Cumberland County and the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles. 22. As a direct and proximate result of Defendant Forklift's, Inc.'s negligence, Defendants incurred damages in the amount of $541.50. A true and correct copy of the estimate of Defendants' vehicle damage is marked as Exhibit A and attached hereto and incorporated herein. WHEREFORE, Defendants demand judgment against Plaintiff on its counterclaim in an amount not in excess of $50,000.00, together with costs of suit. Respectfi~lly submitted, LAW OFFICES OF ANN WALDHERR Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055 Attorney for Defendants VERIFICATION We, Aimee Swank and Charles Swank, verify that the statements made in the foregoing pleadings are true and con'ect to the best of our personal knowledge, information or belief. We understand that these statements are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. ~.,.b-~ -,~,,-'~,~. ~_._. Charles Swank Aimee Swank STAR$1N I(..; APP I,. AL SEI- VIGE AUto , Heavy Equipment ,Home . . POST OFFICE BOx 7462 STEELTON, PA 17113:0462 PHONE 71.7,939;9891 Date: 7/10100 08:12 AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell Damage Assessed By: 136710 Nicholas Starslnlc Condition Code: Good Date of Loss: 6128100 Contact Date: 7/7/00 Deductible: UNKNOWN File Number: AG-0006-42 Claim Number: 253-AP143213 Insured: AIMEE SWANK Address: 44 LILAC DR, MECHANICSBURG, PA 17055 Telephone: Work Phone:(717) 232-7465 Description: 1993 Ford Escort LX Body Style: 4D HB Appraised For: AGNES KEMPER- PT. Type of Loss: Collision Received 7~6~00 Home Phone: (717) 691-5568 Mitchell Service: 917618 Vehicle Production Date: 1/93 Drive Train: 1.9L InJ 4 Cyl 5M VIN: 1FAPPI4J7PW362973 License: P/Z 94Z8 PA Mileage: 110,907 ; OEM/ALT: O Search Code: B17~13 Color: GOLD Options: AM-FM STEREO cASSETT~T~MISS~'~ 4~I~OOR COMPLETION BY THE APP~ISER OR INSU~NCE coMP~ '** SUPPLE~AL C~R~ES DISCOLOR: ~y sdPPl~tal ~epai~ ~har~es may be rejected unless othe~iSe approved by the appraiser or insurance company prior to such suppl~ental repairs. Line Entry Labor Line Item Part Type/ Dollar Item Number Type Operation Description Part Number Amount Labor Units 700590 BDY REMOVE/INSTALL FRT BUMPERASSY 700708 BDY REPAIR FRT BUMPER COVER AUTO REF REFINISH FRT BUMPER COVER 701460 REF REFINISH GRILLE 900500 BDY* REPAIR BUFF HOOD PANEL 701800 BDY REMOVE/REPLACE R H/LAMP LENS AUTO BDY CHECK/ADJUST HEADLAMPS 900500 BDY * REMOVE/REPLACE FLEX ADDITIVE (1) 900500 BDY * REMOVE/REPLACE CAR COVER EXTERIOR AUTO REF ADD'L OPR CLEAR COAT 933003 REF ADD*L OPR TINTCOLOR AUTO ADD'L COST PAINT/MATERIALS AUTO ADD'L COST HAZARDOUS WASTE DISPOSAL ESTIMATE RECALL NUMBER: 7110/00 08:12:40 AG-0006-42 UltraMate is a Trademark of Mitchell International Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International All Rights Reserved Existing Existing FlCZ 13007 A SublEt Sublet 0.8 2.0' C 2.3 C 0.8 0.5* 94.62 0.6 # 0.4 6.00 * 0.0' 3.00 * 0.0' 1.1 0.5* 79.90 * 3.00 * Page I of 4 Exhibit A IAR INI APPRAISAL SERVICE Auto · Heavy Egu~z)rnent · Home POST OFFICE BOX 7462 STEELTON, PA 17113-0462 PHONE 71.7-939-9891 FAX 717-939-1992 * - Judgement Item # - Labor Note Applies C - Included in Clear Coat Calc Date: 7/10/00 08:12 AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell Prior Damage NONE ** KEY TO ABBREVIATIONS USED IN APPRAISALS ** LA~OR TYPES: BDY-Body BDS- Body St~tu,re REF-Refinish ~LS-~lass ADDITIONAL OPERATIONS/IT~M~3~D,L_A~d~tionaI O: Operation QTR-Quarter FNDR- Fende~ FRT- Front RR- ~ear Left R- Right UPR- Upper .LWR- Lowe~ig~R7 Outer INR~InnerASsy- Assembly SUSP-Suspensi?n EXT- ~tenSi0n BRK~racketiNs~strument RECON- Recondition ATG- AsSemblyTimeiguid9 QUAL- Q~Iity REPL-Replacement QTR- Quarter AM-Aftermarket OEM- O~iginal Equipment Manu f a c ~ O~:~ove ~49A INCL-Included R&I- R~ and Install R&R, Remove and Re~lace P. AD- Radiator SUPT~ U t ::[/~,~ Hea~iamp~ W/SH~ELD:~WlndShleld MiSc_ M[SeellaneO:uS ~ ~ [SCU0S RE: perSOnwho kaowi g[y:a d With nte = to inj r. or defraud any insurance e6mpa:y or 6ther persoA ~l.;~I AA~: application for insurance or statementlof claim containing a=~ matariall9 false information or conceals for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects the person to criminal and civil penalties. Add'l Labor Sublet Labor Subtotals Units Rate Amount Amount Totals Body 4.3 36.00 0.00 0.00 154.80 T Refinish 4.7 36.00 0.00 0.00 169.20 T Taxable Labor 324.00 Labor Tax @ 6.000 % 19.44 Labor Summary 9.0 343.44 II. Part Replacement Summary Taxable Parts Salee Tax Total Replacement Parts Amount 6.000% Amount 103.62 6.22 109.84 ESTIMATE RECALL NUMBER: 7110/00 08:12:40 AG-0006-42 UltraMata Is a Trademark of Mitchell International Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International All Rights Reserved Page 2 of 4 Ill. Additional Costs Taxable Costs Sales Tax Total Additional Costs 6.00O% 82.90 4.97 87.87 IV. Date: 7/10/00 08:12 AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell Adjustments Customer Responsibility Amount 0.00 Point(s) of Impact 12 Front Center (P) Body Shop: Address: Telephone: LUCAS BIS 526 E. MAIN STR~ MECHANICSBURG, PA 17055 (717) 766-064t - ¢1 L II. 18. IV. Total Labor: Total Replacement Parts: Total Additional Costs: Gross Total: Total Adjustments: Net Total: Inspection Site: 2ND &KELKER STR HBG, PA 7/7/00 343.44 109.84 87.87 541.15 0.00 541.15 ESTIMATE RECALL NUMBER: 7/10/00 08:12:40 AG-0006-42 UitraMata Is a Trademark of Mitchell International Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International AIl Rights Reserved Page 3 of 4 ~-[AI~,.~INI(.,; AI"'I'"I'~AI,.~AL ~P_.I'~VIL;I::: Auto · 'Heavy Equipment · Home . POST OFFICE BOX 7462 STEELTON, PA 17'1t3-0462 ~HONE 71.7-939-9891 FAX 717-939-'1992 Date: 7/10/00 08:t2 AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell REPAIR COST DISCLOSURE: Costs above the appraised amount may be the responsibility of the vehicle owner. PARTS LOCATIONS: OEM parts can be obtained at an OEM dealership. The names of where any non-OEM parts used can be purchased is listed above AFTERMARKET CRASH PARTS (AFTERMARKET or AFTERMARKET CAPA) A non-original equipment manufacturer (non-oem) replacement part, either new or used, for any of the non-mechanical parts that genreally constitute the exterior of the motor vehicle, including inner and outer panels. This appraisal will indicate if aftermarket crash parts are specified by stat~ "i~'ftermarket or "Aftermarket CAPA". If use of such par the warranty on the part being replaced or any other ~ the afte~arket C~ash part shall have a warranty equal to or bette_r than the remainder of the existing warranty. QUALITY RECYCLED PARTS/USED(QUAL RECYCLED PART):If appraisal specifies recycled parts theF must be °f ~ike kind and q"/al~ty or better than those being replaced. AUTHORIZATION TO REPAIR: This is not an aUthOrization to repair Vehicle owner is reSponsible for aUthOrizing ShOP to begin repairs. If vehicle owner is a ~h~d party or claimant, the ~nSurance company should be contacted to COnfirm liability coverage before authorlzin~ repairs. CUS~0MER CHOICE OF SHOPS: Selection of the repair shop is the responsibility of the vehicle owner. Vehicle owner is under no obligation to use any specific repair shop. The insurer will provide, upon request, information regarding repair facilities that will be able to repair the vehicle for the appraised amount. CHAR~ES DISCLAIMER: Any additional towing or storage charges incurred may become the responsibility of the vehicle owner after a time frame determined by the insurer. ESTIMATE RECALL NUMBER: 7110/00 08:'12:40 AG-0006.42 Mitchell Data Version: JUN_00_A UltraMate Is a Trademark of Mitchell International Copyright (C) 1994. 1999 Mitchell International All Rights Reserved Page 4 of CERTIFICATE OF SERVICE I, John C. Swartz, Jr., Esquire, hereby certify that I have this 17th day of June, 2002, caused to be served via first class United States Mail, postage prepaid, a true and correct copy of the foregoing pleading upon the following: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 PULEO & D'EMILIO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKVVAY, SUITE 210 BLUE BELL, PA 19422 (610) 941-3600 ATTORNEY FOR PLAINTIFF ~MPIRE-FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC. 13810 FNB PARKWAY OMAHA, NE 68154-5202 VS. CHARLES SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17055 AND AIMEE SWANK A/K/A AMY SWANK 44 LILAC DRIVE M-~ECHANICSBURG, PA 17055 THIS IS AN ARBITRATION MATTER COMMON PLEAS COURT OF CUMBERLAND COUNTY ClVIL ACTION COMPLAINT The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney Paul F. D'Emilio, Esquire, bring action upon a cause whereof the following is a statement: 1. The Plaintiff, Empire Fire and Marine Insurance Company is a Corporation authorized to do business in the Commonwealth of Pennsylvania, having an office at 13810 FNB Parkway, Omaha, NE 68154-5202. Plaintiff brings this action as subrogee of Forklift's Inc. (herein the "Insured") under a policy of automobile insurance # SD0800122, issued by Plaintiff. 2. The Defendants, Charles Swank and Aimee Swank a/k/a Amy Swank are individuals residing at 44 Lilac Drive, Mechanicsburg, PA 17055. 3. At all times hereinafter mentioned Defendant, Amiee Swank a/k/a Amy Swank was the agent, servant, workman, employee then and there engaged in the business of the Defendant, Charles Swank within the scope of her employment. 4. On or about the 28th day of June, 2000, a motor vehicle owned by Plaintiff's insured was traveling along Sporting Hill Road in the borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania when it was struck by another vehicle owned by the Defendant George Swank and operated by the Defendant, Amiee Swank a/ida Amy Swank causing the damages hereinafter set forth. 5. Plaintiff avers that they have occurred damages due to the occurrence herein above mentioned in the amount of Three Thousand Two Hundred Seventy Five and 12/100 ($3,275.12) Dollars plus the deductible of Five Hundred and 00/100 ($500.00) Dollars for a total of Three Thousand Seven Hundred Seventy Five and 12/100 ($3,775.12) Dollars. A true and correct copy of the estimate is attached hereto, made part hereof and marked Exhibit "A". 6. The said occurrence was due solely to the negligence of the Defendant, Amiee Swank a/ida Amy Swank in that she: a. did fail to have her motor vehicle under Proper and adequate control; b. did operate the motor vehicle at an excessive rate of speed; c. did fail to apply her brakes in time to avoid the collision; d. did fail to obey stop signs and yield signs; e. did fail to observe the Insured's vehicle in accordance with existing traffic conditions and traffic controls; f. did permit or allow her vehicle to strike and collide with the automobile operated by the Insured; g. did fail to exercise the degree of care required of a motorist merging into other lanes of traffic; h. did fail to drive at a speed and in a manner that would allow him to stop within the assured clear distance ahead; i. did fail to drive at a speed and in a manner that would allow him to move 2 between lanes within the assured clear distance ahead; J. did fail to properly observe traffic signals controlling her direction of travel; road; k. did fail to keep a reasonable lookout for other vehicles lawfully on the I. did operate her motor vehicle without due regard for the rights, safety and position of the Insured's vehicle at the point aforesaid in that she did attempt to overtake Insured's vehicle and pass it on the right; m. did fail to yield the right of way; and n. did violate the various statutes and laws of the County of Cumberland and the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles. WHEREFORE, Plaintiff demands judgment against each Defendant on each Count in an amount not in excess of Fifty Thousand and 00/100 ($50,000,00) Dollars together with costs of suit. ATTOR.EY FOR 3 ~ERIFICATi0~ Robert J. ~rh~, Jr., Empire FAre an~ Marine Insurance Co~y, Plaintiff in the above caDtioned matter verifie~that~ the facts contained in the foregoing Complaint are t~e ~d Correct. I ~derstand that fals~ stat~men~ herein are s~ject to the penalties of 18 Pa. C.S. Section 490~ unswo~ falsificati an .tttt. ~ -£ EXHIBIT "A" biO. 495 p. ~ 12~ & MARKET STREETS, LEMOYNE, PA 17043 (717] 761-8700 HOURS: MONDAY-FRIDAY reCTOry PO# NOtE CUSTO~ 12'" & MARKET STREETS, LEMOYNE, PA 17043 (717} 761-6700' .~ HOUR,q: MONDAY-FRIDAY · , 7;30 AM - 6:0n PM : '-" ALL p~ ARE Nb"~ UNL~ NOTED 0TN ~v'ISF., ~ ~ r,N=wa AND ~OR . ' ' ' ' US~ ~W X ~ ," , _... ' ~~~~" '"~-~ ~ ~ ZT~ J~. ~ You ~; ~ ~ ' :.." SHERIFF'S RETURN - REGULAR C~SE NO: 2002-02352 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EMPIRE FIRE AND MARINE INS CO VS SWANK CHARLES ET AL BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SWANK CHARLES the DEFENDANT , at 2123:00 HOURS, on the 16th day of May at 44 LILAC DRIVE , 2002 MECHANICSBURG, PA 17055 by handing to CHARLES WASNK 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 6.21 Affidavit .00 Surcharge 10.00 .00 34.21 Sworn and Subscribed to before me this .~.~,{ day of ~ ~ A.D. ; l~rothonotary , So Answers: R. Thomas Kline 05/17/2002 PULEO AND DEMILIO Deput~ Sheriff SHERIFF'S RETURN - ~C~SE NO: 2002-02352 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EMPIRE FIRE AND MARINE INS CO VS SWANK CHARLES ET AL REGULAR BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SWANK AIMEE AKA AMY SWANK the DEFENDANT , at 2123:00 HOURS, on the 16th day of May , 2002 at 44 LILAC DRIVE MECHANICSBURG, PA 17055 CHARLES SWANK 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 3~ day of / ~rothonotary So Answers: R. Thomas Kline 05/17/2002 PULEO AND DEMILIO Deputy ~Sheriff EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC., Plaintiffs, CHARLES SWANK AND AIMEE SWANK a/k/a AMY SWANK, Defendants. DALE McCLURE AND FORKLIFT, INC. Additional Defendants. : COMMON PLEAS COURT OF : CUMBERLAND COUNTY : : No. 02-2352 Civil Term : : : : . . : CIVIL ACTION : .. . : : : NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by 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 SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4~ Floor, Cumberland County Courthouse Carlisle, PA 17013 EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC., Plaintiffs, CHARLES SWANK AND AIMEE SWANK affda AMY SWANK, Defendants. DALE McCLURE AND FORKLIFT, INC. Additional Defendants. : COMMON PLEAS COURT OF : CUMBERLAND COUNTY . : No. 02-2352 Civil Term CIVIL ACTION DEFENDANTS' JOINDER COMPLAINT AND NOW COMES Defendants, Charles Swank and Aimee Swank, by and through their attorney, John C. Swartz, Jr., Esquire, and files the following Joinder Complaint by averring as follows: 1. Plaintiff Empire Fire & Marine Insurance Company commenced the above action by filing a Complaint on May 13, 2002 against Defendants in the Common Pleas Court of Cumberland County, Pennsylvania. A copy of Plaintiff's Complaint is marked as Exhibit A and attached hereto and incorporated herein. 2. The basis of this lawsuit is a claim for property damage allegedly sustained by Plaintiff's vehicle as a result of a motor vehicle accident occurring on June 28, 2000 on Sporting Hilt Road in Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendants' filed an Answer with New Matter and Counterclaim on June 13, 2002. A true and correct copy of Defendants' Answer with New Matter and Counterclaim is marked as Exhibit B and attached hereto and incorporated herein. 4. Additional Defendant Forklift, Inc. is a corporation doing business in the Commonwealth of Pennsylvania with a business address of 741 Independence Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. Additional Defendant Dale McCiure is an adult individual with a business address of 741 Independence Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 6. It is believed and therefore averred that at all material times regarding the subject accident Additional Defendant Dale McClure was the agent, ostensible agent, servant, workman or employee of Additional Defendant Forklift, Inc. and acting at all times in the course and scope of his employment with and on behalf of the Additional Defendant Forklift, Inc. 7. At all material times, Additional Defendant McClure operated a Ford Van owned by Additional Defendant Forklift, Inc. while in the course and scope of his employment for Additional Defendant Forklift, Inc. 8. On or about June 28, 2000, Defendant Aimee Swank, while operating her subject vehicle, was attempting to make a left-hand turn onto Sporting Hill Road from the Hampden Shopping Center. 9. At or about the same time, Additional Defendant Dale McClure, while operating a vehicle owned by Forklift, Inc. and in the course and scope of his employment, made an illegal pass on Sporting Hill Road across the double lines and struck Defendant Swank's vehicle. As a direct and proximate result of Additional Defendant's negligence, Defendants incurred property damage to their vehicle in the amount of $541.50. A true and correct copy of said damage report is attached to Exhibit B. 10. At all material times, Defendant Aimee Swank had the right-of-way and did not anticipate and could not anticipate the negligence of Additional Defendant Dale McClure in illegally passing a motor vehicle on the left side. COUNT I - NEGLIGENCE DEFENDANTS CHARLES SWANK AND AIMEE SWANK V. ADDITIONAL DEFENDANT DALE McCLURE 11. Defendants incorporate by reference all of the allegations set forth in paragraphs 1 through 10 above as if set forth more fully and at length herein. 12. The aforesaid collision was caused solely by the negligence, carelessness, or reckless acts of Defendant McClure including, but not limited to the following: a. Failure to have motor vehicle and adequate control; b. Operating the vehicle at an excessive rate of speed; c. Failure to apply brakes in time to avoid a collision; d. Failure to obey all traffic controls; e. Operating vehicle in a reckless and negligent manner for the conditions as they existed at the time of the accident; f. Permitting his vehicle to strike and collide with the vehicle of the Defendant; g. Failure to exercise reasonable degree of care required of a motorist on the roadway at the time of the incident; h. Failure to operate his vehicle in a speed and manner which would allow him to stop within the assured clear distance ahead; i. Failure to keep a reasonable lookout for other vehicles lawfully on the roadway that may be merging or turning left at the intersection; j. Operating his vehicle without due regards for the rights, safety and position of the Defendant's vehicle in an attempt to overtake traffic on Sporting Hill Road; k. Failure to yield the right-of-way; 1. Operating his vehicle in violation of Pa. C.S.A. §3307 pertaining to no passing zones and 75 Pa. C.S.A. §3301 pertaining to duty to drive on the right; and m. Violation of the various statutes and laws of Cumberland County and the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles. 13. As a direct and proximate result of Defendant Forklift's, Inc.'s negligence, Defendants incurred damages in the amount of $541.50. A true and correct copy of the estimate of Defendants' vehicle damage is attached to Exhibit B of Defendants' Answer with New Matter. WHEREFORE, Defendants Charles and Aimee Swank demand judgment against Additional Defendant Dale McClure in an amount not in excess of $50,000.00, together with costs of suit. COUNT II - NEGLIGENCE DEFENDANTS CHARLES SWANK AND AIMEE SWANK V. ADDITIONAL DEFENDANT FORKLIFF, INC. 14. Defendants incorporate by reference all of the allegations set forth in paragraphs 1 through 13 above as if set forth more fully and at length herein. 15. In addition to the vicarious liability based on the previously stated negligence of Additional Defendant McClure, the negligence, carelessness, and recklessness of Additional Defendant Forklift, Inc. existed inter alia, of the following: a. Permitting Additional Defendant McCiure to operate the vehicle when it knew or should have known that Additional Defendant McClure was not capable of operating the vehicle safely; Failing to maintain the vehicle in a safe and proper operating condition; Failing to properly instruct Additional Defendant McClure on the proper operation of the vehicle; d. Failing to instruct Additional Defendant MeClure not to drive on the left-hand side of the road in violation of 75 Pa. C.S.A. {}3307; and e. Otherwise failing to act with due care under the circumstances. 16. As a result of Additional Defendant Forklift, Inc.'s vicarious liability and aforementioned negligence, Defendants Charles and Aimee Swank incurred motor vehicle damages in the amount of $541.50. A true and correct copy of the estimate of Defendants' vehicle damage is attached to Exhibit B of Defendants' Answer with New Matter. WHEREFORE, Defendants Charles and Aimee Swank demand judgment against Additional Defendant Forklift, Inc. in an amount not in excess of $50,000.00, together with costs of suit. Respectfully submitted, LAW OFFICES OF ANN WALDHERR I.D. NO. 62012 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055 Attorney for Defendants The undersigned states that JOHN C. SWARTZ, JR., Esquire is counsel, by the undersigned, for the Defendant (s) herein, that he has examined the pleadings and the entire investigation file made on behalf of the said Defendant (s), that he is taking this Verification to assure compliance with the pertinent rules pertaining to time of filing of pleadings and other documents prescribed by said rules and that the facts set forth are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. John C. Swart~ Jr. EXHIBIT A PULEO & D'EMILIO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL, PA 19422 (610) 941-3600 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC. 13810 FNB PARKWAY OMAHA, NE 68154-5202 VS. CHARLES SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17055 AND AIMEE SWANK A/K/A AMY SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17,055 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 am served, by entering a written appearance personal y or by attorney and filing in writing with the ccourt your defenses or objections to the claims set forth against you. You am warned that if you fall to do so the case may proceed without you and a Judgment may be entered against you by the court without furmer notice for any money claimed in the comp ant or for any other claim or reltaf requseted 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.ad:FORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 THIS IS AN ARBITRATION MATTER COMMON PLEAS COURT OF CUMBERLAND COUNTY ClVlL ACTION AVISO Le hen demandado a usted en la corte. SI usted quiets defendeme de estas demandse expuestas en las paglnas sigulentse, usted tlene (20) dias de plazo a parUr de a fecha de la demanda y la notificeclon. Ustad debs presentar una apariencla secrita o en persona o por abogedo y archivar en la corte sus defenses o sue obJeclones a Ise demandse encontra da su persona. Sea avlsedo qua si usted no se deflende, la corto tomato medldse y puede entrar una orden contra usted sin pmvlo aviso o notlflceclon o por cualqler queja o ;dh'lo qua cepedido en la peflclon de demanda. Uetad puede perder dlnero, sue propledades o otros demchos Importantes peru LLEVE ESTA DEMANDAA UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIHERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCPJTA ABA,JO PARA AVERIGUAR DONDE USTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 TRUE COPY FROM RECORD la Ye~imony wl~r~f, I h~'s unto set my ~ PULEO & D'EMILIO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL, PA 19422 (610) 941-3600 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC. 13810 FNB PARKWAY OMAHA, NE 68154-5202 VS. CHARLES SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17055 AND AIMEE SWANK NK/A AMY SWANK 44 LILAC DRIVE MECHANICSBURG, PA 17055 THIS IS AN ARBITRATION MATTER COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. CIVIL ACTION COMPLAINT The Plaintiff, Empire Fire and Madne Insurance Company, by its attorney Paul F. D'Emilio, Esquire, bdng action upon a cause whereof the following is a statement: 1. The Plaintiff, Empire Fire and Madne Insurance Company is a Corporation authorized to do business in the Commonwealth of Pennsylvania, having an office at 13810 FNB Parkway, Omaha, NE 68154-5202. Plaintiff brings this action as subrogee of Forklift's Inc. (herein the "Insured") under a policy of automobile insurance # SD0800122, issued by Plaintiff. 2. The Defendants, Charles Swank and Aimee Swank a/k/a Amy Swank are individuals residing at 44 Lilac Drive, Mechanicsburg, PA 17055. 3. At all times hereinafter mentioned Defendant, Amiee Swank a/k/a Amy Swank was the agent, servant, workman, employee then and there engaged in the business of the Defendant, Charles Swank within the scope of her employment. 4. On or about the 28th day of June, 2000, a motor vehicle owned by Plaintiff's insured was traveling along Sporting Hill Road in the borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania when it was struck by another vehicle owned by the Defendant George Swank and operated by the Defendant, ^miee Swank a/k/a Amy Swank causing the damages hereinafter set forth. 5. Plaintiff avers that they have occurred damages due to the occurrence herein above mentioned in the amount of Three Thousand Two Hundred Seventy Five and 121100 ($3,275.12) Dollars plus the deductible of Five Hundred and 00/100 ($500.00) Dollars for a total of Three Thousand Seven Hundred Seventy Five and 12/100 ($3,775.12) Dollars. A true and correct copy of the estimate is attached hereto, made part hereof and marked Exhibit "A". 6. The said occurrence was due solely to the negligence of the Defendant, ^miee Swank a/k/a Amy Swank in that she: a. did fail to have her motor vehicle under proper and adequate control; b. did operate the motor vehicle at an excessive rate of speed; c. did fail to apply her brakes in time to avoid the collision; d. did fail to obey stop signs and yield signs; e. did fail to observe the Insured's vehicle in accordance with existing traffic conditions and traffic controls; f. did permit or allow her vehicle to strike and collide with the automobile operated by the Insured; g. did fail to exercise the degree of care required of a motorist merging into other lanes of traffic; h. did fail to drive at a speed and in a manner that would allow him to stop within the assured clear distance ahead; i. did fail to drive at a speed and in a manner that would allow him to move between lanes within the assured clear distance ahead; j. did fail to properly observe traffic signals controlling her direction of travel; k. did fail to keep a reasonable lookout for other vehicles lawfully on the road; I. did operate her motor vehicle without due regard for the rights, safety and position of the Insured's vehicle at the point aforesaid in that she did attempt to overtake Insured's vehicle and pass it on the right; m. did fail to yield the right of way; and n. did violate the various statutes and laws of the County of Cumberland and the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles. WHEREFORE, Plaintiff demands judgment against each Defendant on each Count in an amount not in excess of Fifty Thousand and 00/100 ($50,000.00) Dollars together with costs of suit. ~_~j~~ 'PAUL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF VERIFICATION Robert J. Urban, Jr., Empire Fire and Marine Insurance Con, any, Plaintiff in the above captioned matter verifie~that~ the facts contained in the foregoing Complaint are true a~d correct. I understand that fals~ sta~men~ herein are n~_de subject to the penalties of 18 Pa. C.S. Section 4904 re~iug~o unswo.,.rn falsification to authoritiesi~1 /~,~ ._=~ EXHIBIT "A" "'IFtY.31.L:~IT~ 9:40R1'1 F/dj ?~,? 91.8 12TM & MARKET STREETS, LEMOYNE, PA 17043 (717) 761-6700 HOURS: MONDAY-FRIDAY 7:30 AM- 6:OD PM PiT ~ ~t~ SG t I: HO,4~b 12"" & MARKET STREETS, LEMOYNE, PA 17043 (717} 761-67o0' - H0URa: MONDAY-FRIDAY 7:30 AM - 6:00 PM I Ab-'lg~wt.~DaE REr~IFr THE PARTB N~,O lABOR .... U~I'ED I~LOW X ~ EXHIBIT B EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC., : COMMON PLEAS COURT OF : CUMBERLAND COUNTY : Plaintiffs, : : No. 02-2352 Civil Term : : : : : Defendants. : CIVIL ACTION NOTICE TO PLEAD Empire Fire & Marine Insurance Company as subrogee of Forklift's Inc. c/o Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 Vo GEORGE SWANK AND AIMEE SWANK a/k/a AMY SWANK, To: You are hereby notified to file a written response to the enclosed Defendants' Answer with New Matter within 20 days of service hereof or a judgment may be entered against you. Respectfully submitted, LAW OFFICES OF ANNA WALDHERR J~hn C. Swartz, Jr., ~qltl/re Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055-6912 (717) 691-2063 Counsel for Defendants EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF F ' ORKLIFT S INC., Plaintiffs, GEORGE SWANK AND AIMEE SWANK a/k/a AMY SWANK, Defendants. DEFENDANTS' ANSWER TO PLAINTIFF'S : COMMON PLEAS COURT OF : CUMBERLAND COUNTY : : : No. 02-2352 Civil Term : : . : : CIVIL ACTION COMPLAINT WITH NEW MATTER AND COUNTERCLAIM AND NOW, come Defendants George Swank and Aimee Swank, by and through their attorney, John C. Swartz, Jr., Esquire, and file the following Answer with New Matter and Counterclaim by averring as follows: 1. Denied. After reasonable investigation, answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph 1 of Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial. 2. Admitted. 3. Denied. The averments of paragraph 3 state conclusions of law to which no responsive pleadings are necessary. By way of further response, it is specifically denied that Aimee Swank was ever employed or operating as a servant of Defendant George Swank. 4. Denied. After reasonable investigation, answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph 4 of Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial. 5. Denied. After reasonable investigation, answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations set forth in paragraph 1 of Plaintiff's Complaint, and therefore, answering Defendants deny same and demand strict proof at trial. 6. The averments of paragraph 6(a) through (n) inclusive state conclusions of law to which no responsive pleadings are necessary, and therefore, are denied and specific proof thereof is demanded at trial. WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff, together with costs and other such relief this Court deems just and appropriate. DEFENDANTS' NEW MATTER 7. The averments of paragraph 1 through 6 of Defendants' Answer are incorporated herein as if set forth more fully and at length. 8. Plaintiff's causes of action alleged are barred in whole or in part by the applicable Statute of Limitations. 9. Plaintiff's causes of action alleged are barred in whole or in part by the application of the Doctrine of Contributory Negligence as may be applied to the facts disclosed in discovery. 10. Plaintiffs causes of action alleged are barred in whole or in part by the Pennsylvania Comparative Negligence Statute as may be applied to the facts disclosed in discovery. 11. Plaintiffs causes of action alleged are barred in whole or in part by the application of the Doctrine of Assumption of the Risk as may be applied to the facts disclosed in discovery. 12. Plaintiffs' causes of action alleged and any damages claimed by the Plaintiff were caused by individuals and/or entities over which Answering Defendants had no control or right to control. 13. Any injuries or damages sustained by Plaintiff were not proximately caused by any conduct of the Answering Defendant. 14. Plaintiffs claims are barred in whole or in part, by the Pennsylvania Motor Vehicle Financial Responsibility Law. 15. Answering Defendants plead the defense of last clear chance rule. 16. Defendant Amie Swank was not operating said vehicle in the course and scope of any employment for Defendant Charles "George" Swank. WHEREFORE, Defendants demand judgment is entered in their favor and against the Plaintiff, together with costs and other such relief this Court deemsjust and appropriate. COUNTERCLAIM 17. The averments of paragraphs I through 16 are incorporated herein as if more fully set forth and at length. 19. At the time of the subject accident, an employee of Plaintiff Forklift's, Inc. driver, Dale McClure, was operating the subject vehicle in the course and scope of his employment with Forklift's, Inc. 20. Plaintiff Forklift's Inc. is vicariously liable for the negligence and actions of its driver regarding this incident, who was operating said vehicle in the course and scope of his employment with Forklift, Inc. 21. The said occurrence was due to the negligence of Plaintiff Forklift's, Inc. and its employee as follows: a. Failure to have motor vehicle and adequate control; b. Operating the vehicle at an excessive rate of speed; c. Failure to apply brakes in time to avoid a collision; d. Failure to obey all traffic controls; e. Operating vehicle in a reckless and negligent manner for the conditions as they existed at the time of the accident; f. Permitting his vehicle to strike and collide with the vehicle of the Defendant; g. Failure to exemise reasonable degree of care required of a motorist on the roadway at the time of the incident; h. Failure to operate his vehicle in a speed and manner which would allow him to stop within the assured clear distance ahead; i. Failure to keep a reasonable lookout for other vehicles lawfully on the roadway that may be merging or turning left at the intersection; j. Operating his vehicle without due regards for the rights, safety and position of the Defendant's vehicle in an attempt to overtake traffic on Sporting Hill Road; k. Failure to yield the right-of-way; and I. Violation of the various statutes and laws of Cumberland County and the Commonwealth of Pennsylvania pertaining to the operation of motor vehicles. 22. As a direct and proximate result of Defendant Forklift's, Inc.'s negligence, Defendants incurred damages in the amount of $541.50. A true and correct copy of the estimate of Defendants' vehicle damage is marked as Exhibit A and attached hereto and incorporated herein. WHEREFORE, Defendants demand judgment against Plaintiff on its counterclaim in an amount not in excess of $50,000.00, together with costs of suit. Respectfully submitted, LAW OFFICES OF ANN WALDHERR J ~ o~n C. Swart2, Jr., Esq~ll~t~ I.D. NO. 62012 Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055 Attorney for Defendants VERIFICATION We, Aimee Swank and Charles Swank, verify that the statements made in the foregoing pleadings are true and correct to the best of our personal knowledge, information or belief. We understand that these statements are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Chdr'les Swank ~imee~wank POST OFFICE BOX 7462 STEELTON, PA 17113-0462 -lONE 71-7-939-9891 -.. ~ FAX 717-939~1992 Date: 7110/00 08:12 AM Estimate ID: AG-0006.42 Estimate Version: 0 Committed Profile ID: Mitchell Damage Assessed By: 136710 Nicholas Starainlc Condition Code: Good Date of Loss: 6/28/00 Contact Date: 7/7100 Deductible: UNKNOWN File Number: AG-0006-42 Claim Number: 253-AP143213 Insured: AIMEE SWANK Address: 44 LILAC DR. MECHANICSBURG, PA 17055 Telephone: Work Phone:(717) 232-7465 Home Phone: (717) 69t-5568 Mitchell service 917618 Appraised For: AGNES KEMPER. PT. Type of Loss: Collision Received 7/6100 Description: 1993 Ford Escort I_X :' Vehicle ProdUCti°n Date: 1/93 · .... Drive Train: 1.9L InJ 4 Cyl 5M Body Style: 4D HB ~{~ ~' ! '::i'. :ii L~lcense: P/Z 947.8 PA OEM/ALT: O · :. ~!:. Search Code: B '~3 Color: GOLD ./. Options: CONDITIONIN~,POWE? STEE~JNG, P~NER BRAKES, ELECTRIC DEFOGGER ~: ~ = ess ot~herW~'Se approved by' the app~a~.~'&~ or insurance company prior to such· supplemental repairs. _ine Entry Labor Line Item tern Number Type Operation Description t 700590 BDY REMOVE/INSTALL FRT BUMPER ASSY Part Type/ Part Number FRT BUMPER COVER Existing FRT BUMPER COVER GRILLE BUFF HOOD PANEL Existing R H/LAMP LENS F1CZ 13007 A HEADLAMPS FLEX ADDITIVE (1} Sublet CAR COVER EXTERIOR Sublet CLEAR COAT TINT COLOR PAINT/MATERIALS HAZARDOUS WASTE DISPOSAL 700708 BDY REPAIR AUTO REF REFINISH 701460 REF REFINISH 900500 BDY * REPAIR 701800 BDY REMOVE/REPLACE AUTO BDY CHECK/ADJUST 900500 BDY * REMOVE/REPLACE 900500 BDY* REMOVE/REPLACE AUTO REF ADD'L OPR 933003 REF ADD'L OPR AUTO ADD'L COST AUTO ADD'L COST ESTIMATE RECALL NUMBER: 7110100 08:'12:40 AG-0006-42 UltraMats Is a Trademark of Mitchell International Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International AIl Rights Reserved Exhibit A Dollar Labor Amount Units 0.8 2.0' C 2.3 C 0.8 0.5* 94.62 0.6 # 0.4 6.00 * 0.0' 3.00 * 0.0' 0.5* 79.90 * 3.00 * Page 1 of 4 ' : OST OFFICE BOX 7462. : :~: : . · * - Judgement Item # - Labor Note Applies C - Included in Clear Coat Calc Date: 7/10100 08:12AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell Prior Damage NONE ** KEY TO ABBREVIATIONS USED IN APPRAISALS ** LA~OR TYPES: BDY-Body BDS- Body Structure REF-Refinish SLS-Glass FRM- Frame MCH ~,echani~a1 ADDITIONAL OPERATIONS/ITEM~D ,L-A~tionat'ii~Operation UTR-Uuarter FNDR- Fende~'CFRT-~ Fron~ ' ~RR_ Rear ~ Left R- Right sUSP-Suspension EXT- ~8~n~ion B~K~.~hcket'~XN~atrument R~-CON- ~eoondition ATG- AsS~ly~'Tim~::::,g~.,id~ QX~AL- Q~'axity REPL-Replacement 9TR- Quarte~.: AM-Afte~ar~et OEM- O~i~inal Equipment Manufact~=~'~ ~er~ul INCL-Included R&I- R~ve~.~d~Insta!~.. aaa. Remove and,Replace PAD- Radiator SUP.T7 FRAUD DISCLOSURE: Any perSOn who .knoWinglY. end wi~::: inte~: to in~ure or de[raud any for insurance' or state~:::of claim containing an~:.!~['~erially false mnformatmon or conceals for the purpose of misleading,: information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects the person to criminal and civil penalties. Add'l Labor Sublet I. Labor Subtotals Units Rate Amount Amount Totals Body 4.3 36.00 0.00 0.00 15a,.80 T Refinish 4.7 36.00 0.00 0.00 169.20 T Taxable Labor 324.00. Labor Tax ~ 6.000 % 19.44 Labor Summary 9.0 343.44 II. Part Replacement Summary Taxable Parts Sales Tax Total Replacement Parts Amount 6.000% Amount 103.62 6.~ 109.84 ESTIMATE RECALL NUMBER: 7/10100 08:12:40 AG-0006-42 UltraMats Is a Trademark of Mitchell International Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International All Rights Reserved Page 2 of IlL Additional Costs Taxable Costa Sales Tax Total Additional Costs 6.000% Amount 82.90 4.97 87.87 Date: 7110/00 08:12 AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell IV. AdJustmenta Customer Responsibility Amount 0.00 Point(s) of Impact 12 Front Center (P) BodyShop: Address: Telephone: I. Total Labor: II. Tota/Replacement Parts: IlL Total Additional Costa: Gross Total: LUCAS BIS 526 E. MAIN sTR: MECHANICSBURG, PA 17055. (717) 766-0641 . · . : ~ - ¢/ IV. Total Adjustmenta: Net Total: · " .inspectlonSIte: 2ND &:KELKER STR !/ "': HBG~PA .,: :Inspection Date 71 7100 :~=": 343.44 109.84 87.87 541.15 0.00 541.15 ESTIMATE RECALL NUMBER: 7/10/00 08:12:40 AG-0006-42 UltraMata Is a Trademark of Mitchell International Mitchell Data Version: JUN_00_A Copyright (C) 1994 - 1999 Mitchell International All Rlghta Reserved Page 3 of 4 POST OFFICE BOX 7462 STEELTON, PA 17113-0462 HONE 71,7-939-9891 -, '.-FAX.717-939-1992 Date: 7/10/00 08:t2 AM Estimate ID: AG-0006-42 Estimate Version: 0 Committed Profile ID: Mitchell REPAIR COST DISCLOSURE: Costs above the appraised amount may be the responsibility of the vehicle owner. PARTS LOCATIONS= OEM parts can be obtained at an OEM dealership. The names of where any non-OEM parts used can be purchased is listed above AFTERMARKET CRASH PARTS(AFTERMARKET or AFTERMARKET CAPA)= A non-original equipment manufacturer (non-oem) replacement part, either new or used, for any of the non-mechanical parts that genreally constitute the exterior of the motor vehicle, including inner and outer panels. This appraisal will indicate if aftermarket crash parts are specified by statin~'~A~ftermarket. or "Aftermarket CAPA,,. If use of such par~°ids th~i~warran~Y~on the part being replaced or any other par~,~- th~ afte~rket. C~sh'part shall have a warranty equal to or be~ter~ ....- t~an the r~inderlof the existing warranty, r'~=.~":.. QUALITY RECYCLED pARTs/USED(QUAL RECYcLE~iPART)=if appr~'isal specifies recycled parts the~!!!!~St be ~6~I ~tke kind!iii!~nd i~ality °~].?~etter than those being repla~d. ':'~':~ ~?:~ AUTHORIZATION TO !R~DAIR:['Thfs iS no~ ~n:auth0~i~:ion toi:,'~pair If vehicle owner is a!i!~a party or' claimant, t~!:?i~urance company should be contacted t° :donfirm liability coverage:b6fbre authorizing repairs. CUS~0MER CHOICE OF SHOPS= Selection of the repair shop is the responsibility of the vehicle owner. Vehicle owner is under no obligation to use any specific repair shop. The insurer will provide, upon request, information regarding repair facilities that will be able to repair the vehicle for the appraised amount. ESTIMATE RECALL NUMBER: 7110100 08:t2:40 AG-0006-42 Mitchell Data Version: CHARGES DISCLAIMER: Any additional towing or storage charges incurred may become the responsibility of the vehicle owner after a time frame determined by the insurer. APPRAISER [ co,, ,,,. co.( JUN_OO_A UltraMate Is a Trademark of Mitchell International Copyright (C) t 994 - 1999 Mitchell International NI Righte Reserved Page 4 of 4 CERTIFICATE OF SERVICE I, John C. Swartz, Jr., Esquire, hereby certify that I have this 17th day of June, 2002, caused to be served via first class United States Mail, postage prepaid, a true and correct copy of the foregoing pleading upon the following: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 CERTIFICATE OF SERVICE I, John C. Swartz, Jr., Esquire, hereby certify that I have this 12th day of July 2002, caused to be served via first class United States Mail, postage prepaid, a true and correct copy of the foregoing pleading upon the following: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 Joi~l-C. Swartz, Jr., Esquir[ PULEO & D'EMILIO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 660 SENTRY PARK~NAY, SUITE 210 BLUE BELL, PA 19422 (610) 941-3600 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S, INC. CHARLES SWANK AND AMIEE SWANK A/K/A AMY SWAN K AND DALE MCCLURE AND FORKLIFT'S, INC. AS ADDITIONAL DEFENDANTS COMMON PLEAS COURT OF CUMBERLAND COUNTY NO.: 02-2352 CIVIL ACTION ENTRY OF APPEARANCE TO THE PROTHONOTARY, P.C.: Kindly entry my appearance for Dale McClum and Forklift's, Inc. in the above entitled matter. PAI.E.F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PULEO & D'EMILIO, LLC 660 SENTRY PARKWAY, SUITE 210 BLUE BELL, PA 19422 (610) 941-3600 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-02352 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EMPIRE FIRE AND MARINE INS CO VS SWANK CHARLES ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: DAI,E MCCLURE but was unable to locate Him deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE On December in his bailiwick. He therefore County, Pennsylvania, to 19th , 2002 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co 6.00 9.00 10.00 30.50 .00 55.50 z2/zg/2oo2 Sheriff of Cumberland County KEMPER INSURANCE COMPANIES Sworn and subscribed to before me this ~'7 r day of Prothonot~r~ ' SHERIFF'S RETURN - REGULAR CASE NO: 2002-02352 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EMPIRE FIRE AND MARINE INS CO VS SWANK CHARLES ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FORKLIFT INC the ADD'L DEFENDANT, at 0914:00 HOURS, on the 31st day of July at 741 INDEPENDENCE AVE MECHANICSBURG, PA 17055 by handing to RICK SCOTT, VICE PRESIDENT a true and attested copy of COMPLAINT & NOTICE , 2002 together with and at the same time directing ~is attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 8.28 Affidavit .00 Surcharge 10.00 .00 36.28 Sworn and Subscribed to before me this J$ ~ day of ~c~ ~'~ A.D. /P~othonotary ' ! ' So Answers: R. Thomas Kline 12/19/2002 KEMPER INSURAi~CE COMPANIES · De~u6y ' 8~fe ri f Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor the Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin : : MCCLURE DALE Sheriff's Return No. 1887-T OTHER COUNTY NO. AND NOW:August 9, 2002 NOTICE & JOINDER COMPLAINT MCCLURE DALE to SANDRA MCCLURE (PERSON IN CHARGE) EMPIRE FIRE & MARINE INSURANCE CO AS vs -2002 02-2352 at 10:00AMserved the within upon by personally handing 1 true attested copy(ies) of the original NOTICE & JOINDER COMPLAINT and making known to him/her the contents thereof at 1670 POTATOE VALLEY RD. HARRISBURG, PA 17112-0000 Sworn and subscribed to before me this 12TH day of DECEMBER, 2002 PROTHONOTARY SO Answers, Sheriff of Dauphin County, Pa. Degh~ty Sheriff Sheriff's Costs: $30.50 PD 08/05/2002 RCPT NO 167516 GASPICH EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF FORKLIFT'S INC., Plaintiffs, CHARLES SWANK AND AIMEE SWANK a/k/a AMY SWANK, Defendants. DALE McCLURE AND FORKLIFT, INC. Additional Defendants. COMMON PLEAS COURT OF CUMBERLAND COUNTY No. 02-2352 Civil Term CIVIL ACTION PRAECIPE TO MARK CASE AS SETTLED AND DISCONTINUED TO THE PROTHONOIrARY: Please mark the above-captioned case as settled, including the Joinder Complaint filed in this matter, and kindly mark the case as discontinued with prejudice. Thank you. Respectfully submitted, ul~[. ~[~milio, Esquire Puleo & D'Emilo, L[C 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 (610) 941-3600 Attorney for Plaintiffs and Additional Defendants Joh~ i:E:. Swa~tz, Jr., Esquire Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055-6912 (717) 691-2063 Attorney for Defendants ORDER OF DISCONTINUANCE AND NOW, this ~__'~day of settled and discontinued. ,2003, the above-captioned action is marked Prothonotary.