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HomeMy WebLinkAbout94-02366 - NO. 27 SUZANNE M. PHILLIPS, Plnintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACfION. LAW vs. HEATHER A. SMAY, Dcfcndant 94.2366 CIVIL TERM IN RE: PRETRIAL CONFERENCE Prcscntat a prctrial confcrcncc hcld May 1, 1996, wcrc David J. Fostcr, Esquire, aUorncy for the plaintiff, and Rolf Kroll, Esquire. allorney for the defcndant. This case ariscs from a motur vehiclc accident that occurred on June 14, 1993. when the dcfcndant's vchiclc collidcd with the rcar of a vchiclc drivcn by the plaintiff. On thc Friday before the pretrial confcrcncc, counscl for thc plaintiff was finally provided with a copy of tbe dcfendant's accidcnt rceonstruction expert rcport. Thc plaintiff objccl~ to the proffcred expcrt tcstimony in light of the late furnishing of the rcport. From discussions at pretrial conference. we arc satisficd thc plaintiff is not prcjudieed in its cross-cxamination of this cxpert. Wc will admit this testimony ovcr objcction but will notc that. if rcqucsted, a continuancc will bc granted. A motion in Iiminc will be filcd by the dcfense sccking to exclude cvidcnce of injury c.1used to a passcngcr in the plaintiffs vehiclc. We opincd that the admissibility of this evidcnce will dcpcnd on the naturc of thc dcfcnsc. If it is a dcfense that the automobile accidcnt was so minor as not to havc been ablc to causc injury to thc plaintiff, thcn the fact that thcre was injury to hcr passcngcr is clearly relevant. Dcfense counsel cxpresscd conccrn as to whcther or not there wa~ any claim for medical expcnses or lost wages. Counscl for thc plaintiff indicatcd that they would provide the dcfensc with the status of first party bencfits as soon as possiblc. This othcrwisc uncomplicated mallcr should bc tried in a day and a half. Mr. Kroll David J. Foster, Esquire For the Plaintiff . AIL ~ asked, fm reasons of personal convenience, that the ease not start on Monday, though he would be more than happy to pick a jury on the 20th of May. The parties appear to be making substantial progress towards settlement. May 1, 1996 Rolf Kroll. Esquire For the Defendant :rlm ."...... ""'-~ - EJ bf ROLF E. KI:OLL PA Altornoy 1.0. No. 47243 REYNOLDS & HAVAS A Profolllonol Corporation 10 t Pino Stroot Posl Offico Box 932 HauI.burg, Pennsylvanio t 7 t 00.0932 (7171236.3200 Attornay for Defendant HEATHER A. SMAY SUZANNE M. PHILLIPS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 94 - 2366 HEATHER A. SMAY, Defendant PRETRIAL MEMORANDUM OF DEFENDANT HEATHER A. SHAY I. Statement of Basic Facts as to Liabilitv and Damaqes This case arises from a motor vehicle accident that occurred on June 14, 1993. Suzanne M. Phillips ("Plaintiff") was the driver of a 1989 Chevrolet Cavalier stopped on the exit ramp from SR 81, Hampton Township, Cumberland County, Pennsylvania. It is undisputed that Heather A. Smay was behind Plaintiff in this line of traffic. According to Ms. Smay, she inched forward as the Phillips vehicle began to enter onto the traveled portion of Wertzville Road. Ms. Smay's estimated rate of speed at the time of the collision was two miles per hour. With the possible exception of some scuff marks on the bumper, there was no damage to Plaintiff's vehicle. There was absolutely no damage to Ms. Smay's Ford Probe. In fact, Plaintiff admitted that she did not even look for any damage to her car at the scene of the accident. Moreover, one witness indicated that Ms. Smay's vehicle "slightly tapped" Ms. Phillips' vehicle. Despite the foregoing, Plaintiff asserts that there was a significant impact as a result of the collision. The police were not summoned to the scene of the accident. However, both the Plaintiff and Ms. Smay reported the accident to the police. Ms. Smay reported the accident on the day it occurred but the police officer did not make a report because there was no damage to the vehicles. Plaintiff reported the accident to the State Police the day after the accident occurred. Plaintiff did not seek medical attention on the day of the accident. However, on June 16, 1993, she was examined by Kathleen L. Sempels, M.D. Plaintiff complained of upper and lower back pain. Dr. Sempels' physical examination revealed a possible left sacroiliac joint inflammation with some small trapezius muscle spasms. Dr. Sempels examined Plaintiff again on June 29, 1993. Plaintiff complained of mid and low back muscle spasms. Approximately two weeks later, physical therapy was prescribed at Silver Springs Physical Therapy. Thereafter, Plaintiff was examined by Richard A. Hallock, M.D. Dr. Hallock's records indicate that Plaintiff had cervical symptoms several days after the accident but that the symptoms had resolved soontaneouslv. It was Dr. Hallock's opinion that Plaintiff had a thoracic and lumbosacral muscle strain, and he - 2 - recommended continued physical therapy. Dr. Hallock examined Plaintiff again on September 20, 1993, for complaints of pain in her right knee. There were absolutely no comolaints of neck, thoracic or lumbosacral pain during this examination. Based upon the foregoing, Defendant believes the evidence will show that Plaintiff sustained very minor injuries, if any, as a result of the June 14, 1993, motor vehicle accident. II. Statement of the Princioal Issues as to Liability and Damaoes 1. Was Plaintiff Suzanne M. Phillips negligent? 2. Was Defendant Heather A. Smay negligent? 3. Was Defendant Heather A. Smay's and/or Suzanne M. Phillips' negligence a substantial factor in Plaintiff's injuries? 4. What are Plaintiff's damages? III. Anticioated Evidentiary Issues None at this time. IV. Identity of Witnesses 1. Suzanne M. Phillips 2. Heather A. Smay 3. Bud Aucker - 3 - .... ____:'..1_ 4 . Greg Beard 5. Richard J. Boal, M.D. 6. Expert witness on impact V. List of Exhibits 1. Plaintiff's medical records. 2. Photographs of damage to Plaintiff's vehicle. 3. Plaintiff's x-rays, MRIs, and CAT scans. 4. Photographs of the accident scene. 5. Estimator fact sheet and repair estimate, dated June 18, 1993. 6. Any and all exhibits identified in Plaintiff's pretrial memorandum. Defendant reserves the right to supplement this list of exhibits. Defendant requests that Plaintiff stipulate to the authenticity of all documents identified above and exchanged through the course of discovery, subject only therefor to objections based upon relevance. - 4 - Date: Y h-Vfd , , VI. Settlement Neaotiations Plaintiff has demanded policy limits in the amount of $50,000. State Farm has offered $3,500. This offer has been rejected. ROLF E. OLL PA Att ney 1.0. No. 47243 REYNOLDS & HAVAS A Professional Corporation 101 Pine Street Post Office Box 932 Harrisburg, Pennsylvania 17108-0932 (717) 236-3200 Attorney for Defendant HEATHER A. SHAY - 5 - CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served upon counsel of record on April 24, 1996, by United States First Class Mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street Lemoyne, PA 17U43.0222 (Attorney for PLAINTIFF) ~ d~~ REYNOLDS & HAVAS A Professional Corporation (2807) (/) c ~ ~ oll - < lJ::tt:;- ~~W~ (/)....~~ O~....>- u.. it w~ ui~ ~ffi 9o~Q. ::ll=-uj o<13z Q. >- o ~ I- ~ (/) w o ..... (.) @ V. HEATHER A. SMAY Defendant IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNTY,PENNSYLVANIA NO. 94-2366 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUZANNE M. PHILLIPS Plaintiff PLAINTIFF'S PRETRIAL MEMORANDUM I. BASIC FACTS AS TO LIABILITY This case arises from an automobile collision which occurred on June 14, 1993, at approximately 4:15 p.m., on the southbound exit ramp of Route 81 where it intersects with Wertzville Road in Hampden Township, Cumberland County, Pennyslvania. At that time, the vehicle operated and owned by the Plaintiff, Suzanne Phillips, was stopped at the end of the exit ramp at a stop sign, waiting for a break in traffic in order to turn right onto Wertzville Road, when it was struck in the rear by the vehicle operated by the Defendant, Heather Smay. The front of the Smay vehicle ended up underneath the higher rear bumper of the Plaintiffs car and was thereafter disengaged. The Defendant was cited with a violation of the vehicle code (75 Pa. C.S.A. 3361, driving vehicle at a safe speed). As a result of the collision, Plaintiff sustained various injuries which are the subject of this suit. II. BASIC FACTS AS TO DAMAGES Plaintiff suffered the following injuries as a result of this accident: III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGE A. Was the accident the fault of the defendant? B. What is the measure of damages? IV. LEGAL ISSUES None are anticipated at this time. V. IDENTITY OF WITNESSES 1. Plaintiff, Suzanne Phillips 2. Defendant, Heather Smay, as on cross examination 3. Pamela Jury 4. Corporal W. G. Lanier, Jr., Pennsylvania State Police 5. Wildlife Conservation Officer Timothy Grenoble 6. Physical Therapists 7. Dr. Richard Hallock 8. Friends and coworkers of Plaintiff VI. LIST OF EXHIBITS 1. Diagram of accident scene 2. Photographs of accident scene 3. Medical Records of Plaintiff 4. Medical Records of Pam Jury VII. SETTLEMENT STATUS Defendant's policy limits are $50,000. Plaintiff does not recall having received an 1. Thoracic and lumbosacral muscle strain; 2. Aggravation of spondylolisthesis; 3. Pain in upper back, shoulder, and neck; 4. Sacroiliac joint inflammation; 5. Pain and weakness in right knee; 6. Headaches; 7. Injury to vertebral discs. Many of these symptoms still persist. Treatment has consisted of extensive physical therapy, which continues intermittently, more than two and a half years after the collision. This can include exercises, electrical stimulation, massage, ultrasound, heatpacks, cranial sacral therapy and pain medication. After the incident, the plaintiff used sick leave for bed rest from August 20, 1993 through August 27, 1993, and intermittently was forced to take time off for physical therapy. For a number of months she worked (she is employed by Wildlife Management in Harrisburg) while in significant pain. These injuries have caused a great impact on her daily life. She had been forced for a long period of time to forego her chief pursuit, training and riding her horse, both for leisure and competitively, while continuing to pay for board, etc. Also, her ability to maintain and continue her normal activities, such as cleaning, walking, gardening, rescue dog duties, housekeeping functions for her home and that of her mother, dancing, a sex life, and her ability to travel by car for some distances, had all been affected. She could not lift many items because of problems in her back that she was able to lift before. offer to settle after the commencement of this lawsuit, despite many requests. Respectfully submitted, rS~JL<j~ j~~))T-i;~ ~ JDavid J. Foster, Es~re COSTOPOULOS, FOSTER & FIELDS 831 Market StreeUP.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR THE PLAINTIFF " ", .}\ ~, -::r- ...". r ~ - . :c' "'-- .". - '::> m - >- -. .... ::c: :..,::)C) -..::::-- .(1 --~ -...l -' --' ~ ~ ) r'\~ .,J f' ...... ...... "- '-So ....... \)'- .-.. -- ~, - ,J ':..J )' ~ "(\ lY) + v: , ~ ", ""X en c ~ ~ ll/l - <( a:~l;jz w:sw<( 1-.."'> 00 < t;)-' Ocn..in u.>-wZ aW ~Z U)~~W gO:!Q. ::J~-ui 0< l:lz a.. > o !2 I- ~ en W o ..J U vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO~4- .)~{PtPCivi1 :7"t'rM SUZANNE M. PHILLIPS, Plaintiff CIVIL ACTION - LAW HEATHER A. SMAY, Defendant JURY TRIAL DEMANDED 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 objectiolls 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 Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: COURT ADMINISTRATOR, 4th Floor CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 240-6200 "'. ...~ .--..,...,,,,,..., SUZANNE M. PHILLIPS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. No. Civil 1994 CIVIL ACTION - LAW HEATHER A. SMAY, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Suzanne M. Phillips, by and through her attorney, Leslie M. Fields, Esquire, and respectfully represents as follows: 1. Plaintiff, Suzanne M. Phillips, is an adult individual residing at 2021 Longs Gap Road, Carlisle, cumberland County, Pennsylvania 17013. 2. Defendant, Heather A. Smay, is an adult individual residing at 323 North Hawthorn Street, York, York County, Pennsylvania 17404. 3. On or about June 14, 1993, at approximately 4:15 p.m., Plaintiff, Suzanne M. Phillips, operating a 1989 Chevrolet Cavalier automobile (Title No. 41412511), was lawfully stopped at a stop sign on the southbound ramp of SR-81 at Exit No. 20, Hampden Township, Cumberland County, Pennsylvania, waiting for a break in traffic in order to make a right turn onto PA 944 (Wertzville Road), when a 1993 Ford Probe automobile (Title No. 45750693) operated by Defendant, Heather A. Smay, failed to stop and struck Plaintiff's vehicle in the rear. '<''' _.,,_4 4. At the aforesaid time and place, Plaintiff, Suzanne M. Phillips, was caused to sustain severe injuries to her person, hereinafter more fully described. 5. At the aforesaid time and place, the collision and injuries resulting therefrom were caused by the negligent, careless and/or reckless actions of Defendant, Heather A. Smay, in that she: (a) failed to drive her vehicle at a safe speed; (b) violated Section 3361 of the Vehicle Code on "Driving vehicle at Safe Speed" (75 Pa.C.S.A. 3361) ; (c) failed to come to a lawful stop at a stop sign; (d) operated her vehicle too closely behind the Plaintiff's vehicle; (e) failed to stop before causing an accident; (f) failed to keep a proper lookout; (g) failed to see what she should have seen; (h) failed to notice the imminence of an accident and to take the necessary steps to avoid the same; (i) failed to maintain her vehicle under proper and adequate control; and (j) acted without regard for the safety and rights of Plaintiff. 6. As a direct and proximate result of the negligent, careless and/or reckless acts of the Defendant, Heather A. Smay, the Plaintiff, Suzanne M. Phillips, has suffered injuries which were and are severe, painful, serious and permanent. These injuries include, but are not limited to: (a) mid to low back muscle sprain; (b) sacroiliac joint inflammation; (c) pain in the upper back and shoulder; (d) muscle spasms in the mid to low back region; and (e) a herniated disc. 7. As a further direct and proximate result of the negligent, careless and/or reckless acts of the Defendant, Heather A. Smay, the Plaintiff, Suzanne M. Phillips, has been obligated to receive and undergo medical attention, care and expenses for the injuries she has suffered and may be obligated to continue to incur such expenses for an indefinite time in the future. 8. As a further direct and proximate result of the negligent, careless and/or reckless acts of the Defendant, Heather A. Smay, the Plaintiff, Suzanne M. Phillips, has suffered a loss of earnings and/or impairment of her earning capacity and power. 9. As a further direct and proximate result of the negligent, careless and/or reckless acts of the Defendant, Heather A. Smay, the Plaintiff, Suzanne M. Phillips, has suffered medically determinable physical impairments which have prevented her from performing all of the normal acts and duties which constitute her usual and customary daily activities. 10. As a further direct and proximate result of the negligent, careless and/or reckless acts of the Defendant, Heather A. Smay, the Plaintiff, Suzanne M. Phillips, has experienced severe pain and suffering, mental anguish and humiliation, and in the future may continue to so experience. 11. As a further direct and proximate result of the negligent, careless and/or reckless acts of the Defendant, Heather A. Smay, the Plaintiff, Suzanne M. Phillips, has suffered a loss of life's pleasures and in the future will continue to suffer a loss of life's pleasures. WHEREFORE, Plaintiff, Suzanne M. Phillips, demands judgment against Defendant, Heather A. Smay, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. RESPECTFULLY SUBMITTED: ",U . M. Fields, Esquire COST OULOS, FOSTER & FIELDS 831 Market Street/p.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFF l",,::t1:fr,'. cl' VERIPICATION I, Suzanne M. Phillips, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. 6' . -' I' ~.---" // U~ Suzan M. Phillips DATED: ~./~~I /'1C;-S' ". Suzanne M. Phillips vs Heather A. Smay In the Court of Common Pleas of Cumberland County. Pennsylvania No. 94-2366 Civil Term Complaint in Civil Action Law and Notice R. Thomas Kline. Sheriff. who being duly sworn according to law, says he made diligent search and inquiry for the within named defendant, to wit: Heather A. Smay but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of York County. Pennsylvania to serve the within Complaint in Civil Action Law and Notice according to law. YORK COUNTY RETURN: I. Kenneth L. Markel. Sheriff of the County of York. Commonwealth of Pennsylvania. after diligent search and inquiry as to the defendant. Heather A. Smay. the within named defendant, do hereby return Civil Complaint and Notice. NOT FOUND in York County. So answers: Kenneth L. Markel Sheriff of York County. Pennsylvania. York County return hereto attached. Harry King. Deputy Sheriff. who being duly sworn according to law. says on June 4. 1994 at 8:25 o'clock A.M.. E.D.S.T.. he served a true copy of Complaint in Civil Action Law and Notice. in the above entitled action upon the wi.thin named defendant, to wit: Heather A. Smay by making known unto Mike Galvin adult male residence for Heather S. Smay at 5015 Inverness Drive. Mechanicsburg. Cumberland County. pennsylvania. its contents and at the same time handing to him personally the said true and attested copy of the same. Sheriff's Costs: Docketing Service Surcharge Out of County York Co. So ans?~.~~~ 14.00 6.16 2.00 5.00 14.24 41.40 R. Thomas Kline. Sheriff Pd. by Atty. 7 / 6-7-94 bye. / /~- //. , / ~ A~ ty' Sh~f me Sworn and subscribed to before day of Ql-~ ~)Tr.' 'b 7l1..i[~ l+''7 rothonotary this IO~ 1994. A.D. " KENNETH L. MARKEL SHERIFF EDWARD C. ROBERTS SOUClTOR WALLIS W. RHINE REAL ESTATE DEPUTY SCOTT E. SHEWELL CHIEF DEPUTY SUZANNE M. PHILLIPS, Plaintiff IN THE COURT OF C'QIolOON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2366 CIVIL TERM HEATHER A. SMAY, Defendant JURY TRIAL DE1>IANDED AFFIDAVIT OF SERVICE I, Kenneth L. Markel, Sheriff of the County of York, Commonwealth of pennsylvania, after diligent search and inquiry as to the defendant, Heather A. Smay, the within named defendant, do hereby return Civil COll{llaint and Notice, NOT FOUND in York County. Defendant has moved to 5015 Inverness Drive, Mechanicsburg, PA 17055, per Post Office. So answers, ~~~~~~~~ KENNETH L. MARKEL . SHERIFF COUNTY OF YORK Sheriff's Costs $14.24 SWorn and subscribed to before me this 12th day of May 1994 41/' 1--') 11;~ lid,"} II. !j(7~<--- NOTARIAL SEAl. WAlLIS W. RHINE. Notllrl Public Yotk, Yo,k COlJnly. PO<ll"'ylv.nia My Commission expires Marrh 2~. 10&5 ~ . '-"q -, . c -, . - I d.' ? I In j ne Court cr .::mmO:1 r :=::5 or \..:.J:'.':::::;:r1::n .......::L::-;~.~/,. Srlr:sy '/cr:i=: Suzanne M. Phillips 'is. Heather A. Smay 94-2366.~;vil Tprm :-10. :?_- ---, ;:';ow, May 05. 1994 :'9_ !. SEZ?..!:~ O? C':nG.:.....-"...!.A.'lD COt.~TY. ?o\... co . . . . . ... .- . :::::JY c...::uc: == .::c.::-..::t or York Cuu:ty :0 =::"'.1t: .:..;. .,V:::., .:.:. o_u_": \".:..,~ ..:.....:,. _._ - a.' :.t. Ot. ._-_ .'='1"1:_='-. ~ =-,:" _:en ...::..-, :.:s.= .- --= '_~"""""IIO -= ~_ r~r<-'<:~ She.~ of :~e.r..::u:d C.)u.:tY. ?~ A,Sd2:.vit or - . ~~:"11~ ;:';ow, ~9 -- o'.:!cc.::. '.[. !=-.~ .-- wi":':n ".lpoll ~t by ~~ :0 . C':py ct =e ~:-:~ 0-..,1 " l!la = bowu :0 :.:.e .:=::t=:3 :..-:::::t. So =w=. ::;t.~:;- oi CDu.c.tT. :3. 5wor: :u1d r..:b::sc=-J:cd OCcn: COSTS ::.c..'t ...."Ia ),lIL.:=:AGE .~:mA "YIL s ==~ !9_ croi ---~-_.---. s ROLF E. KROLL, ESQUIRE PI. Supremo Court 1.0. No. 47243 FOULKROO, REYNOLDS & HAVAS A Proll.llonal Corporltlon 101 Pine Street Po.t Olllel Bo. 932 Hlrrllburg, Penn.vlvenll 17108.0932 , ~ Telephone: Fax: [71n 236.3200 [71 n 236,6863 Attorney for Defendant' HEATHER A. SHAY v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2366 CIVIL TERM SUZANNE M. PHILLIPS, Plaintiff HEATHER A. SHAY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly enter my appearance as counsel for Defendant, Heather A. Smay. FOULKROD, REYNOLDS & HAVAS A Pro~ sional Corporation DATE: 6/;0/(/ By: Attorneys for Defendant, HEATHER A. SHAY CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a true and correct copy of the record this foregoing document upon all counsel and parties of 'Ct'l-- ~' ) day of ,(,'\L~ , 1994, by placing the United States i st Class Mail, postage prepaid, at same in the Harrisburg, Pennsylvania, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market street Post Office Box 222 Lemoyne, Pennsylvania 17043 .";.,''- _. .~.._-..-. :;;...'" '. ,.I'....': J'T:' .. .......- ..,' _._,-...~ ...~~'j("'I, .. ~ ,. '.' i:' .' ~ '.. .. ,.~ ~ ...'~:;:':fi,t.;;..C; ''''. " .....~...,:.:,'......-.-_ ,Hl" ., -;'or..L.t.;r~~1!i;" :.t~,t.~~;:41h> .i.iAlftt~:';~~'I':jl-;,'4",~'.;(~t~:./../;~i."'. 'I ;.;.J . . _h..,..._____...~_,...."".,,"'...~.~"'"'_,.\... ."\.""'.C,,-,....,...,~.,;;:...'...,~_' '~....,._,.,..,,.......;,. "t,,.,.,....~ .-'''"'''.C____,.,...,..~__,,____.____.,_......~_."~. ,,~,~~_1.. .. I JUII IG 2 42 PH '9~ Cr ~., , ".. t::iQC:: iTi: .. r , '_ ( l~ 'if "." 't I. .'.'11: C'., : TY 'i:....J" , i. _.-U\__ ..-.-... ~-'._"._."_'''_'''",._,_w_'-_''''~_' .,....._,_.';-,--_.. . ~ .. - ., ,.-,:' ........- ,. ROLF E. KROLL, ESQUIRE Pe. Supremo Court I.D. No. 47243 FOULKROD, REYNOLDS & HAVAS A Profeaalonal Corporetlon 101 PI... StrHt Poa' Office Box 932 Harrl.burg. penn.vlvanle 17108.0932 Telephone: Fex: I71n 236.3200 171 n 236.6863 Attorney for Defendant. HEATHER A. SHAY SUZANNE M. PHILLIPS, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 94-2366 CIVIL TERM . . HEATHER A. SHAY, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO PT.1~"D TO: Suzanne M. Phillips c/o Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street Post Office Box 222 Lemoyne, Pennsylvania 17043 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. DATE: 6 jz7/f{( FOULKROD, REYNOLDS & HAVAS A.:r~ssional Corporation By: (,', R F E. Attorneys for Defendant, HEATHER A. SHAY ROLF E. KROLL, ESQUIRE PI. Supreme Court 1.0. No. 47243 FOULKROD, REYNOLDS & HAVAS A prolel.IORII Corporltlon 101 Pine Stroot Post Olflcl Box 93Z H.rrl.burg, Pennsylvlnll 171oa.093Z Tllepl1OR1: FIX: l71n Z36.3Z00 171 n Z]6.686] Attorney for Dlfendant: HEATHER A. SllAY SUZANNE M. PHILLIPS, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2366 CIVIL TERM HEATHER A. SHAY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW HATTER OF DEFENDANT, HEATHER A. SHAY, TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Heather A. Smay, ("Ms. Smay") by and through her counsel, Foulkrod, ReynOlds & Havas, a professional corporation to respond to the complaint of Plaintiff, Suzanne M. Phillips ("Plaintiff") as follows: 1. Denied. After reasonable investigation Ms. Smay is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of Plaintiff's Complaint and they are, therefore, denied. 2. Admitted in part and denied in part. It is admitted that the Defendant, Heather A. Smay is an adult individual. It is specifically denied that Ms. Smay resides at 323 North Hawthorn Street, York County, Pennsylvania. To the contrary, Ms. Smay re~ides at 5316B Manayunk Road, Harrisburg, Pennsylvania. 3. Admitted in part and denied in part. It is admitted that on or about June 14, 1993, an accident occurred involving the vehicle operated by Plaintiff and the vehicle operated by Defendant. It is specifically denied that the vehicle operated by Plaintiff was lawfully stopped at a stop sign and strict proof is demanded at trial. 4. Denied. It is specifically denied that Plaintiff, Suzanne M. Phillips sustained any injuries as a function of this accident and strict proof to the contrary is demanded at trial. 5. Denied. The allegations of this paragraph and its corresponding sub-paragraphs of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required and they are therefore, denied. By way of further answer, it is specifically denied that Ms. Smay was negligent by virtue of any of the following: (a) failure to drive her vehicle at a safe speed. To the contrary, Ms. Smay operated her vehicle at a reasonably safe speed under the circumstances; (b) violation of ~3361 of the Vehicle Code "Driving Vehicle at Safe Speed II (75 Pa.C.S.A. ~3361). To the contrary, Ms. Smayoperated here motor vehicle at a reasonably safe speed under the circumstance; (c) failure to come to a lawful stop at a stop sign. To the contrary, it is specifically denied that Ms. Smay failed to come to a lawful stop at a stop sign; (d) operated her vehicle too closely behind the Plaintiff's vehicle. To the contrary, Ms. - 2 - (e) (f) (g) (h) (i) ~"""~C-.,i Smay was following in a reasonable fashion behind Plaintiff's vehicle: failure to stop before causing an accident. To the contrary, it is specifically denied that Ms. smay caused the accident in question: failure to keep a proper lookout. To the contrary, it is specifically denied that Ms. Smay failed to keep a proper lookout: failure to see what she should have seen. To the contrary, it is specifically denied that Ms. Smay failed to see what she should have seen: failure to notice the imminence of an accident and to take the necessary steps to avoid the same. To the contrary, it was Plaintiff's sudden and unexpected stop that was the proximate cause of the accident in question: failure to maintain her vehicle under proper and adequate control. To the contrary, Ms. Smay maintained her vehicle under proper and adequate control at all times relevant hereto and it was the sudden unexpected and unreasonable stop of the Plaintiff that caused the accident in question: and acting without regard for the safety and rights of Plaintiff. To the contrary, Ms. Smay acted with full regard for the safety and rights of Plaintiff and strict proof to the contrary is demanded at trial. 6. a through e denied. The allegations contained in this (j) paragraph and the corresponding sub-paragraphs of Plaintiff's Complaint constitute conclusions of law to which no further pleading is required and they are therefore, denied. By way of further answer, after reasonable investigation Ms. Smay is - 3 - without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of plaintiff's Complaint and they are, therefore, denied. 7. Denied. After reasonable investigation Ms. smay is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of Plaintiff's Complaint and they are, therefore, denied. By way of further answer, the allegations contained in this paragraph of plaintiff's Complaint constitute conclusions of law to which no further pleading is required and they are therefore, denied. B. Denied. After reasonable investigation Ms. Smay is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of plaintiff's complaint and they are, therefore, denied. By way of further answer, the allegations contained in this paragraph of Plaintiff's Complaint constitute conclusions of law to which no further pleading is required and they are therefore, denied. 9. Denied. After reasonable investigation Ms. Smay is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of Plaintiff's Complaint and they are, therefore, denied. By way of further answer, the allegations contained in this paragraph of plaintiff's Complaint constitute conclusions of law to which no further pleading is required and they are therefore, denied. - 4 - 10. Denied. After reasonable investigation Ms. Smay is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of Plaintiff's Complaint and they are, therefore, denied. By way of further answer, the allegations contained in this paragraph of Plaintiff's Complaint constitute conclusions of law to which no further pleading is required and they are therefore, denied. 11. Denied. After reasonable investigation Ms. Smay is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of Plaintiff's Complaint and they are, therefore, denied. By way of further answer, the allegations contained in this paragraph of Plaintiff's Complaint constitute conclusions of law to which no further pleading is required and they are therefore, denied. WHEREFORE, Defendant, Heather A. Smay demands judgment in her favor and against Plaintiff, Suzanne M. Phillips with costs of suit assessed to Plaintiff. NEW MATTER 1. Plaintiff has failed to state a claim upon which relief can be granted. 2. Plaintiff's claims are barred by the doctrines of contributory and comparative negligence. - 5 - 3. Plaintiff's claims are barred by the doctrine of assumption of risk. 4. Ms. smay was confronted with a sudden emergency to which he responded reasonably under the circumstances. 5. Plaintiff's claims are barred by the applicable statute of limitations. 6. Plaintiff is precluded from pleading, introducing into evidence or recovering any and all monies paid or payable as "required benefits" or any like benefits pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, Act of February 12, 1984, 75 Pa. Cons. stat. section 1701 et. ~ as amended. WHEREFORE, Heather A. Smay demands judgment in her favor and against Plaintiff, Suzanne M. Phillips, with costs of suit assessed to Plaintiff. Respectfully submitted, FOULKROD, REYNOLDS & HAVAS A Professional Corporation By: Dated: 6/21/91 Attorneys for Defendant, HEATHER A. SHAY - 6 - . . ,. VERIFICATION I, Heather A. Smay, hereby acknowledge that I am the Defendant in this action~ that I have read the foregoing document~ and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: CERTIFICATE OF ~ERVICE ~I(jf!. D~ Mar E unlap I HEREBY CERTIFY that I have served a true and correct copy of the foregoing document upon all counsel and parties of record this ~O~ day of ~ , 1994, by placing the same in the United states Fi~t Class Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market street Post Office Box 222 Lemoyne, Pennsylvania 17043 -=r en =-= I~. - '... J -'J ., .', III o -' '" w <5 u: ~ ell :$ ffi~@~ I-.Ja:> 1-1--' lIl<",> O"'t;jCll u.~~Z uj~ ~ffi 00:1:11- -'!:-uj =><lilz o > 0. 0 o ::; I- w III -' o u SUZANNE M PHILLIPS . IN THE COURT OF COMMON PLEAS . Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA . . V. : NO. 94-2366 CIVIL TERM HEATHER A. SMAY . CIVIL ACTION - LAW . Defendant . JURY TRIAL DEMANDED . Plaintiff's ReDlv to New Matter AND NOW comes the Plaintiff, Suzanne M. Phillips, by and through her attorney, Leslie M. Fields, Esquire, of Costopoulos, Foster & Fields, respectfully represents as follows in reply to Defendant's new matter: l. No Answer required. 2. Denied. Plaintiff's injuries and damages were caused by Defendant as set forth in the Complaint. 3. Denied. Plaintiff did not disassume the risk of injury. 4. Denied. The incident did not involve a sudden emergency and the Defendant's conduct was not reasonable under the circumstances. 5. Denied. This incident occurred one year and two weeks ago and is not barred by the statute of limitations. 6. Admitted. Respectfully submitted, M. Fields, Esquire COST OULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2l21 ATTORNEY FOR THE PLAINTIFF Dated: 7./3.'N I verify that the statements made in the foregoing document ere true and correct. I understand that false statements herein ere made subject to the penalties of l8 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. I~ >>~#~L~ Phillips /' / DBtB.'ifWf If?~ ....-..,.>4.;. PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO 'mE PIVl'HOI'OTARY OF CUMBERLAND COUNI'Y <- <= .- ......, Please list the following case: CJJ ( X) for JURY trial at the next tenn of civil <;cii.lrtl;;; -0 ", .:);: ( ) for trial without a jury. . ,_ ... ,', ....., --------------------------------------~- (Check one) CAPTION OF CASE (entire caption must be stated in full) (check one) (X) Civil Action - Law SUZANNE M. PHILLIPS Appeal from Arbitration (other) (Plaintiff) vs. HEATHER A. SMAY The trial list will be called on and Aup:ust II). 1991) Trials comnence on September 18. 1991) (Defendant) Pretrials will be held onAull:ust 2'l. 1995 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 2l4.1.) vs. No. 2366 Civil Term 19 94 Indicate the attomey who will try case for the party who files this praecipe: Rolf E. Kroll, Esquire, Reynolds & Havas, 101 Pine Street. Harrisburll:. PA Indicate trial counsel for other parties if known: Leslie M. Fields. Esquire. Costopoulos, Foster & Fields, 83l Market St.. Lemoyne. PA l7043 This case is ready for trial. Signed: ~ ~ /h!J5 Print Narre: ~1~ E. Kr~ll , Esquire Attomey for: Defendant, Heather A. Smay Date: l"\'Jp~'1" . 29. SUZANNE M. PHILLIPS V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HEATHER A. SMAY NO. 94.2366 CIVIL TERM QRDER OF COURT AND NOW, August 21, 1995, by agreement of counsel, the above- captioned matter is hereby continued from the SEPTEMBER, 1995 Trial Term. Counsel Is directed to rellst the case when ready. By the Court, lJCLvl f"- .t~ Harold E. Sheely, P.J. Leslie M. Fields, Esquire For the Plaintiff Rolf E. Kroll, Esquire For the Defendant {'(\c\'~\..c1 c.oy\e.s e,g ~.~s-"\.s Court Administrator :br '.,' ... ... .. -., "," ' -', -,.' ',' ,'~'''''---- .; .~:'i,!t ' '..b~^~""'lli:/~.\io~;'j~~~~4i.~ ~ --. -:.- . ' 'ij" 'I!"" - "~: :0'1 ~ ~ ;' "- ,-..' ,j .:- fit ~ i;,...:. __ ." '--"'V . Aue 28 9 lit AM'9S I': . ILH OfFlOE or I,: i...1,1I10HCU."y r:UIHH:IH 4110 OOIlN IY r[HH5'11V~~IA ........-...._......".';.'..11'_....."..,:'1: ., . ......,.._--,....".....~,-........__r'.. ~...., ".:~.,. . . ,"-- ~ ~, ; I I I i I ! I I . . "", ; '. " " J ',';1'.~.:::;;..' 1.' ~..-~~ f . f'" PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewrlllAn And submllled In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY (Check one) Please list the following case: ( X) for JURY trial at the next term of civil court. " ) for trial without a jury. ) : , , , .-._......_.....__._._.........__._._.._._._._._......_....a__..-............._._-....._...._.._.....-:-:-._.....~~--"-..,..o+ CAPTION OF CASE (entire caption must be stated in fUll) ,'I (check one) ) Assumpsit ) Trespass Suzanna M. Phillips (X) Tresp3!lG (Motor Vshlcle) (Plaintiff) (other) vs. Thetrlalllstwlllbecalledon Aoril 22.1996 Heather A. Smay and Trials commence on Mav 20. 1996 (Defendant) Pretrials will be held on Mav 1.1996 (Briefs are due 5 days bllle.m: pretrials.) vs. (The party listing this case for trial shall provide lorthwith a copy 01 the praecipe to all counsel, pursuant to local Rule 214-1.) No. 2366 CIVil 19~ Indicate the attorney who will try case for the fJarty who files this praecipe: David J_ Foster. Esouire Indicate trial counsel for other parties If known: Defendant I s Counsel - Rolf Kroll, Esquire This case Is ready for trial. '-J 1,\ \:;r ,~_~ Signed: .."---" ,- '- ._" - Ikwirl J. Foster Print Name: Date: h,J!."L )('.,1'I1( A ttorney for: Plaintiff A:.{ P::: . SUZANNE M. PHILLIPS, Plaintitf 27 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HEATHER A. SHAY, Defendant CIVIL ACTION - LAW NO. 94-2366 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of April, 1996, the above case was called today. Representing the Plaintiff was David J. Foster, Esquire. Representing the Defendant for this purpose was Michele Thorp, Esquire. The case really is ready for trial. All depositions have been completed; however, counsel for the Defendant notified counsel tor the Plaintiff that an accident reconstruction report will be tiled by their expert on Friday, April 26th, 1996. Normally for a case being ready for trial at this time, the expert's report should have been previously filed. I have informed Mr. Foster today that if any further action needs to be done by the Court on this case once he gets the report, he will have to notify the Court accordingly; therefore, no further action is taken today on this issue. By the Court, , P.J. r' ~f!tlr"A"" ~ David J. Foster, Esquire For the Plaintiff Rolf Kroll, Esquire For the Defendant Court Administrator :lfh Q.o~"L~ fl'~t.C sj.,lql.. .0.1' . :-' " " " f""'; I !. r.; (':~~~"'" "'1 .1 . I . I..... .. i I:, ~J;, . I 1';. ~'U f; I ,,' , . _.J.... , .., d i ' > r :, >.1 \ I :1'\ ') ll, '<." "I... 11\ , . \, . .... - -- .... .'. ; I . -~..~, ,- _'0':' " David J. Foster, Esquire For the Plaintiff Rolf Kroll, Esquire For the Defendant Court Administrator :lfh e.., t'L~ ~t.L. s/ 'l{'l ~ . .e.i' . . '- / . ' SUZANNE M PHILLIPS Plaintiff . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2366 CIVIL TERM . . V. . . . . HEATHER A. SMAY Defendant . . CIVIL ACTION - LAW JURY TRIAL DEMANDED . . PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned matter as settled, discontinued and ended. BY: lWl. David J F ter, Esquire COSTOPOU~ S, FOSTER & FIELDS 831 Market Street, P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 ATTORNEY FOR THE PLAINTIFFS Dated:~'" 7, /Q91c I== c" o- r : ..:' M ~ :-',:~ 1I1~ ' M ~2t . :': ,. . I'" . '- :-: lor ' .-J 9, :',... . ~,.? @f. , r- "_)1 ._J1 ;.J ., i:J L... '0.. t.. -'J ':j ". \0 U U'\ U rJ) c ul ~ LL .... oil $ ~~W~ ~~~>! ~~~i g~!~ :Jc13z ~ >- o 0 I- ~ rJ) ~ 8 ~' -. .--. -.