HomeMy WebLinkAbout94-04749
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I 24 OLER
JUDY B. REIH and WALTER J.
REIH,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff.
v.
CIVIL ACTION - LAW
I IN TRESPASS (M.V.)
I
94-4749 CIVIL TERM
HARRY D. GIPE,
Defendant
IN REI PRETRIAL CONFERENCE
A pretrial conference was held in the chamber. of
Judqe Oler in the above-captioned case on Wednesday, December
27, 1995. Present on behalf of the Plaintiffs was Richard L.
Webber, Jr., Esquire. Present on behalf of the Defendant was
Girard E. Rickards, Esquire, standing in for Richard H. Wix,
Esquire, the probable trial counsel for Defendant.
This is a negligence action for personal injuries
arising out of an automobile accident on August 25, 1992.
Defendant's motor vehicle missed a stop sign at the intersection
of Route 997 and WhisKey Run Road near Newville, Cumberland
County, Pennsylvania, and hit the side of the pick-up truck of
Plaintiff Judy B. Keirn, causing her injuries. Plaintiff Walter
J. Keirn sues for loss of consortium.
Defendant, who subsequently pled guilty to
Driving under the Influence, concedes liability.
This will be a jury trial in which each side will
have, pursuant to an agreement of counsel, four peremptory
challenges, for a total of eight. The trial is estimated to be
of a duration of one and a half days.
An issue which is expected to arise at trial
involves the admissibility of Defendant's conviction for Driving
under the Influence where the Defendant has conceded liability.
Briefs on this subject are requested from counsel at least five
.
,
days prior to the commencement of the trial term.
A second issue which is expected to arise at
trial i. whether Plaintiff has a right to recover for wage
los.es that allegedly should have been paid by her employer's
disability insurance carrier had she applied for such benefits.
A di.pute exiDts as to whether the policy in question covered
Plaintiff's accident. Briefs on this subject are likewise
requested from counsel at least five days prior to the
commencement of the trial term, and it is requested that a copy
of the policy in question be attached to at least ene of the
briefs. The amount of wage loss at issue is approximately
$5000.00.
Pursuant to an agreement of counsel, if the above
issue regarding disability insurance is decided adversely to the
Defendant, the Plaintiffs will prove or attempt to prove only
the amount of wage loss above the $5000.00 threshold which
represents the amount of wage loss covered by the automobile
liability insurance policy applicable to this case.
It appears that there are no recoverable medical
expenses in this case because of the amount of medical coverage
on the aforesaid automobile liability insurance policy.
One or more videotaped depositions will be shown
to the jury during the course of this trial, and counsel are
directed to supply to the Court a copy of the transcript(s) of
said deposition(s) at least five days prior to the commencement
of trial in the event that there are any objections during the
depositions which require rulings by the trial Court. The
deposition transcripts are to include highlighted portions where
the objections which are being pursued occur, and counsel are
requested to furnish brief memoranda in support of their
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III. ~SUES FOR THE JURY'S CONSIDERATION
A. Was the Defendant's negligence a substantial factor in
bringing about the Plaintiff's harm?
B. The amount of damages to which Plaintiff, Judy B. Keim,
is entitled for her injuries.
C. The amount of damages that Walter J. Keim is entitled to
on the basis of his loss of consortium claim.
IV. EVIDENTIARY MATTERS
A. AT THE TIME OF THE ACCIDENT THE DEFENDANT HAD BEEN
CONSUMING ALCOHOLIC BEVERAGES AND PLED GUILTY TO DRIVING
UNDER THE INFLUENCE IN CONNECTION WITH THIS ACTION.
Because the Defendant has admitted liability, evidence
concerning his consumption of alcohol and the disposition of
alcohol-related charges are inadmissible.
B. EVIDENCE CONCERNING THE PLAINTIFF'S MEDICAL EXPENSES AND
WAGE LOSS.
Pursuant to S 1722 of the Pennsylvania Motor Vehicle Financial
Responsibility Act, the Plaintiff cannot plead, prove or recover
any medical expenses or wage losses that were paid or payable by
insurance.
1. wage LOBS
The Plaintiff was compensated for all but approximately
$1,500.00 of her wage loss.
At the time of the accident,
Plaintiff, Judy B. Keim, had in effect a disability policy through
2
her employer that would have provided coverage tor the
uncompensated wage loss. plaintiff did not apply for those
benefits. It is submitted that because the uncompensated wage 10DS
was payabl,C under a disability policy, the wage loss is not
recoverable in this action.
2. Medical Exoenses
All of the Plaintiff's accident-related medical expenses have
been paid by her automobile insurance carrier. The Plaintiff has
$100,000.00 medical payment coverage under her auto insurance.
V. WI'l'NESSES
1. Judy B. Keirn (as on cross)
2. Walter J. Keim (as on cross)
3. Harry D. Gipe
4. Perry A. Eagle, M.D. (by videotape)
5. Amy Towne, R.N. (Benefits Supervisor, Masland Industries)
6. J. H. Benjamin (Manager Human Resources, Masland
Industries)
7. Kevin Black (state Farm Mutual Automobile Insurance
Company)
Defendant reserves the right to call as witnesses records
custodians from any of the Defendant's medical providers if the
Plaintiff will not stipulate to the authenticity of the records.
3
Defendant reserves the right to call. as witne.... anyone
li.ted in the Plaintiff's Pre-Trial Memorandum.
VI. EXHIBITS
1. Disability Policy
2. First Party Payment File
3. Medical Records
VII. SETTLEMENT
The Plaintiff's most r.ecent demand was $75,000.00. Defendant
has offered $40,000.00.
Respectfully submitted,
WIX, WENGER & WEIDNER
By:
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
4
Mrs. Keim's son, Brett, was a passenger in the
vehicle at the time of the accident.
2. BASIC FACTS AS TO DAMAGES
As a result of the accident, Mrs. Keim sustained a
loss of consciousness. She was transported by Carlisle
Advanced Life Support, Inc. to the Carlisle Hospital
emergency room. While in the ambulance, she vomited
several times. Upon regaining consciousness, she
experienced pain in her left and right shoulders and
neck pain. Also, she had no motor movement of the face.
She was disgnosed by Joseph J. Campbell, M.D. as
suffering from multiple trauma, a transverse fracture
of the left distal clavicle, a concussion, and a head
contusion. Finally, she was diagnosed as having
paresthesia of the face.
Due to the seriousness of the injury and the
history of loss of consciousness, she was admitted to
the hospital. She was treated by Dr. Thomas J. Green
with a sling, soft cervical collar, and swathe for her
clavicle fracture.
The fracture of Judy's left clavicle failed to
heal. She continued to experience pain and fatigue. She
was unable to perform her job at her pre-injury level,
in spite of her diligent efforts to do so.
Dr. Thomas Green therefore operated on the
shoulder on November 23, 1993 by performing 8 bone
graft, 8 very significant operation. A portion of bone
was removed from her leg and inserted at her left
clavicle using a plate and screws. The plate and screws
have not been removed.
There is a scar over her left iliac crest and left
clavicle.
Shortly after the accident, Mrs. Keim also
experienced swelling of her face and corresponding
numbness. She was therefore treated by Dr. Jorgensen
for headaches and facial pain several months after the
accident. Dr. Jorgensen prescribed medication for her
nerves and later administered shock treatments to her
face. In June 1993, he prescribed Tegretol.
Judy received treatment by Daniel J. McCann, D.C.
of Chiroplus from August 30, 1993 through January 14,
1994 due to pain and aches in both extremities,
shoulder pain, upper thoracic pain and left facial
palsy. She was placed on a treatment program consisting
of spinal manipulation, electrical stimulation and hot
packs.
Mrs. Keim continues to experience pain and sore-
ness in her daily routine. For instance,
iences much difficulty shoveling snow. It
to sleep on her left side.
Mrs. Keirn's leg and shoulder continue to bother
her during damp weather. Sometimes, the leg stiffens
she exper-
bothers her
PAGE 3
when she sits.
As a resul t of the acc ident, Mrs. Ke im could not
work from August 26, 1992 to October 14, 1992 and again
from November 3, 1993 to Apr i 1 11, 1994.
Medical expenses for Mrs. Keirn's treatment total
approximately $ 15,500.00 to date, with some potential
future expenses. Her lost gross wage's totalled
$ 11,552.62. No future wage loss is expected.
Mrs. Keirn is also claiming damages for partial
loss of use of her shoulder and leg, pain and
suffering, mental anxiety, loss of life's pleasures,
disfigurement, embarrassment, and humiliation.
Plaintiff Walter J. Keirn Is seeking damages for loss of
consortium.
3. PRINCIPAL ISSUES AS TO LIABILITY AND DAMAGES
A. LIABILITY
~
Whether the accident was caused by the negligence
of the Defendant'!
B. DAMAOE.s
Defendant contends that most, if not all, of Mrs.
Keim's wage loss claim is precluded by Section 1722 of
the Motor Vehicle Financial Responsibility Act.
Defendants position is that Mrs. Keirn was entitled to
disability payments through her employer's disabilIty
PAGE 4
policy (Masland Industriesl. Mrs. Keim has not
received any disability benefits.
Masland's denies any liability under the policy.
Additionally, there is no language in the policy that
permits recovery of such benefits by Mrs. Keim. She
should therefore be permitted to make a claim for her
wage loss.
.. LEGAL ISSUES REGARDING ADMISSABILITY OF EXHIBITS AND TESTIMONY
Plaintiffs are not aware of any legal issues
concerning admissability of exhibits or testimony.
5. WITNESSES
(a) Thomas J. Green, M.D. (via video deposition)
(b) Trooper Thomas S. McDaniel, Pennsylvania State
Police
(c) Elsie Clair
Id) Ethel Bear
Ie) Carlisle Advanced Life Support Paramedic (name
unknown as this time)
(fl Defendant Harry D. Gipe
(g) Daniel J. McCann, D.C.
(h) Jeff Benjamin or Lori Ritter IMaRland Industries)
Ii) Mr. George Chestnut
(J) Mrs. Dorothy Chestnut
(k) Plaintiff Walter J. Keirn
PAGE 5
11. At all times relevant hereto, Plaintiff Judy Keim acted with
due oare and was not contributorily ne~ligent.
COUNT I
PLAINTIFF JUDY B. KEIM V. DEFENDANT
12. Paragraphs 1 through 11 above are incorporated by reference
herein as though set forth in full.
13. Plaintiff Judy H. Keim was transported by ambulance to the
Carlisle Hospital immediately subsequent to the accident.
14. As a result of Defendant's negligence, Plaintiff Judy B. Keim
suffered serious injury, including multiple trauma, a transverse
fracture of the left distal clavicle, a concussion, a head
contusion, Home degenerative changes in the cervical spine, and
paresthesia of the face.
15. As a result of Defendant's negligence, Dr. Thomas Green
performed a bone graft on Pla~ntiff Judy B. Keim by removing a
portion of bone from her leg and inserting it at her clavicle by
using a plate and screws on November 5, 1993.
16. As a result of Defendant's negligence, Plaintiff Judy B. Keirn
incurred medical expenses of $ 15,087.12 to date.
17. As a result of Defendant's negligence, Plaintiff Judy B. Keirn
incurred lost net wages of $ 6,108.67.
18. As a result of Defendant's negligence, Plaintiff Judy B. Keirn
has incurred injuries that have caused and will continue to cause
her great pain and suffering, mental anxiety, nervousness,
embarrassment and humiliation, all to her detriment and loss.
19. Plaintiff Judy B.
suffer an interruption
great and permanent
Defendant's negligence.
Keirn has suffered and will continue to
of her daily habits and pursuits to her
detriment and loss, resulting fro~
20. The amount claimed by Plaintiff Judy B. Keim exceeds the
jurisdictional amount for compulsory arbitration.
WHEREFORE, Plaintiff Judy n. Keim demands judgment against
Defendant in an amount in excess of $ 21,195.79, exclusive of
Interest and costs.
COUNT II
PLAINTIFF WALTER J. KEIH V. DEFENDANT
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IN THE COURT POR CONNON PL8A8
FOR CUMBERLAND COUNTY, PINN8YLVANIA
, ,
JUDY B. KEIM and
WALTER J. KIIM
PLAINTIFFS
CIVIL ACTION - LAW
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V.
NO. 94- 4741 CIVIL TIRN
,
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HARRY D. OIPE,
DEFENDANT
JURY TRIAL DEMANDED
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PRAECIPE FOR WRIT OF SUMMONS
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TO THE PROTHONOTARY:
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Please issue a Writ of Summons in the above-captioned
matter on the Defendant, HARRY D. GIPE, 400 Mountain Road,
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Newville, Cumberland County, PA 17241.
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Dated: I} ",'~, ~T }}) /4:'1 dJ V ~ 14fd
. , RIo..:. L. :....~r.,
Attorney for Plaintiffs
11 West Big Spring Avenue
P.O. Box 40
Newville, PA 17241-0040
Phone (717) 776-6566
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Commonwealth of Pennsylvania
County of Cumberland
Judy B. Keirn and
Walter J. Keirn
237 Middle R06d
Lot 4
Newville PA l724l
No.
Court of Commoll Pleu
94.4749 Civil Term
19__u
VI,
..-.----.----------------------------
Harry D. Gipe
400 Mountain Road
Newville PA 17241
In _________________________________________.___
Civil Action . Law
To __ _ __. _ __ _ _ _f!<;t!..D~. _ !?_~ _!H .E.!!L__ - - -- ..----
You are hereby notified that
Judy B. and Walter J. Keirn
.-----------------------------------------------------------------------------------~--_._--------
. . ., Summons - Civil Action - Law
the Plamnffil h3 V~ommenced an actl~n m n______.________________________________________________
againot you which you are required to defend or 3 default judgment may be entered agalnll you.
(SEAL)
Lawrence E. Welker
Dale __________~~_!!~~~__~~_~______ 19_?_~
.- ___on --.-- - - _mp;'j~f-- - -- - - - - -- n_____
By ---).~ --~-~\~-- f..-.---f-!I.:.-L:.~~J-----..
!DePllty .
V (
JUDY B.REIN and I IN THE COURT OF COMMON PLEAS OF
WALTER J. REIH, I CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs I
I CIVIL ACTION - LAW
v. I
I NO. 94-4749 CIVIL TERM
HARRY D. GIPE, I
Defendant I JURY TRIAL DEMANDED
IIOTICI TO PLIAD
TOI Richard L. Webber, Esquire
366 Green street
P.O. Box 40
Newville, PA 17241-0400
YOU ARE HEREBY NOTIFIED to plead to the enclosed New Hatter
within twenty (20) days from service hereof or a default judqment
will be entered against you.
DATE:
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BY:
Respectfully submitted,
W!J'.r4'lENGER & WEIDNER
Ei-H. "wi-t~~~,G:
IDI 07274
200 Prince street
Harrisbur9, PA 17109
(717) 652-8455
reasonable investigation, the Defendant is without sufficient
knowledge to form a belief as to the truth of the remaining
averments of Paragraph 8. Therefore, the remaining averments of
Paragraph 8 are specifically denied and strict proof thereof is
demanded at the time of trial.
9. The averments of Paragraph 9 constitute a conclusion of
law to which no response is required. To the extent that a
response is deemed required, it is admitted that the Defendant's
negligence caused the accident referred to in the plaintiffS'
complaint.
10. Admitted.
11. The averments of Paragraph 11 constitute a conclusion of
law to which no response is required.
12. paragraphs 1 through 11 of Defendant's Answer with New
Matter are incorporated herein by reference.
13. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 13. Therefore, each and every averment of
Paragraph 13 is specifically denied and strict proof thereof is
demanded at the time of trial.
14. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 14. Thet'efore, each and every averment of
Paragraph 14 is specifically denied and strict proof thereof is
demanded at the time of trial.
2
15. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 15. Therefore, each a~d every averment of
Paragraph 15 is specifically denied and strict proof thereof is
demanded at the time of trial.
16. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 16. Therefore, each and every averment of
Paragraph 16 is specifically denied and strict proof thereof is
demanded at the time of trial.
17. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of paragraph 17. Therefore, each and every averment of
Paragraph 17 is spec if ically denied and strict proof thereof is
demanded at the time of trial.
18. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 18. Therefore, each and every averment of
Paragraph 18 is specifically denied and strict proof thereof is
demanded at the time of trial.
19. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 19. Therefore, each and every averment of
Paragraph 19 is specifically denied and strict proof thereof is
demanded at the time of trial.
20. No response required.
3
WHEREFORE, Defendant, Harry D. Gipe respectfully requests your
Honorable Court to dismiss the Plaintiffs' Complaint with
prejudice.
21. Paragraphs 1 through 20 of the Defendant's Answer with
New Matter are incorporated herein by reference.
22. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 22. Therefore, each and every averment of
Paragraph 22 is specifically denied and strict proof thereof is
demanded at the time of trial.
23. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 23. Therefore, each and every averment of
Paragraph 23 is spedf ically denied and strict proof thereof is
demanded at the time of trial.
24. No response required.
WHEREFORE, Defendant, Harry D. Gipe respectfully requests your
Honorable Court to dismiss the Plaintiffs' Complaint with
prejudice.
4
WHEREFORE, Defendant, Harry D. Gipe respectfully requests your
Honorable Court to dismiss the Plaintiffs' Complaint with
prejudice.
21. Paragraphs 1 through 20 of the Defendant's Answer With
New Matter are incorporated herein by reference.
22. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 22. Therefore, each and every averment of
Paragraph 22 is specifically denied and strict proof thereof is
demanded at the time of trial.
23. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 23.
Therefore, each and every averment of
Paragraph 23 is specifically denied and strict proof thereof is
demanded at the time of trial.
24. No response required.
WHEREFORE, Defendant, Harry D. Gipe respectfully requests your
Honorable Court to dismiss the Plaintiffs' Complaint with
prejudice.
liD HATTZR
25. Defendant believes and therefore avers that some or all
of the Plaintiffs' claims for medical expenses are barred pursuant
to the Pennsylvania Motor Vehicle Financial Responsibility Act.
4
v.
IN THE COURT OF COMMON PLBAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 94-4749 CIVIL TERM
JURY TRIAL DEMANDED
JUDY B. KEIM and
WALTER J. KiIM,
Plaintifh
HARRY D. OIPi,
Defendant
PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER
AND NOW come the Plaintiffs, Judy B. Keim and Walter J.
Keim, by and through their attorney, Richard L. Webber, Jr., and
respond to Defendant's New Matter as follows:
25. The averments of Paragraph 25 constitute a conclusion of law
for which no response is required.
26. The averments of Paragraph 26 constitute a conclusion of law
for which no response is requ ired.
27. The averments of Paragraph 27 constitute a conclusion of law
for which no response is required.
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Richard L. Webber,
Attorney for Plaintiffs
366 Green Spring Road
P.O. Box 40
Newville, PA 17241-0040
(717) 776-6566
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted In duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the foltowlng case:
(Check one)
tor JURY trial at the nextlerm at civil court.
x
for trial wilhout a Jury.
.....................................................................................................................-...........................................................
CAPTION OF CASE
(entire caption must be stated In full)
(check one)
Assumpsit
Trespass
( X) Trespass (Motor Vahle Ie)
JUDY B. KEIM and WALTER J.
KEIM, (Plaintiff)
vs.
(other)
The Irlalllst will be called onDecembe.r ...19.._ J..99
and _J:JL.A...__._______...____..._._.
Trials commence on~ygn....l.2.L_.t<,l9L..
HARRY D. GIFE,
(Defendant)
Pretrials Will be held on -D.e~~.L-2.L....J. ~95
(Briefs are due 5 days before pretrials.)
vs.
(The party listing thiS case for trial shall provide
forthwith a copy of the praecipe to all counsel.
pursuant to local Rule 214.1.)
No. .\)4-474.9 CiVil.....
19 _
Indicate the allorney who Wilt try case lor the party who files thIS praecipe:
Richard L. Webb_~!:.r~~~,_~.\!i.~~___ _...H_.
Indicate trial counsel for othflr parties II known: ._.._._ .
Firm - WIX, WENGER & WEIDNER
------ ---.-------------.--....--
Att.orneys=-._R..~ch~Edfl... W!x. ~n9!.(~.r.~irard E.. Ric,!<ards ,___.. _ ..
This case IS ready for trial.
. . / / 1/....,/1
Signed .-"7V-1 <V,f'?_7<_' ___.._._...
Print Name Hi chard L. WebbE!r!__~.!_.__
Attorney for Plaint.iff
Date: .Q.Q.tcQ.p.er .2.5. 1995_..
PRA~C~E FOR_[~ST}NG CASE FOR ARGUMENT
(Hwlt be typewritten and subnitted in duplicate)
TO TilE PRO'fllONOTARY OF CUMBERLAND COUNTY:
(')
l :- . 71 .. ~
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Please list the within matter for the next Argunent Court..., - f
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CAPTION OF CASE
(entire caption rrust be stated in full)
PENoeo, INC,.
(Plaintiff)
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~;NVll(()NMENTAL RISK INSURANCE
COMPANY. RISK RETENTION GROUP,
Me IJONIlUGH CAPERTON
INSURANCE, now known as. ACORDIA
INSURANCE,
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( tefendant)
No. 5933
Civil
1994
1. State matter to be argued (Le.. plaintiff's IlDtion for new trial. defendant's
derurrer to canplaint, etc.):
Defendant'8 Preliminary Objections
2. Identify counsel who will argue case:
3.
(a) for plaintiff: James L. Goldsmith, Esquire
Address: Caldwell . Kearns
3631 N. ,ront Street
Harrisburg, PA l7110-l5JJ
(b) for defendant: Mike Adams, Esquire
Address: Meyer, Darragh, Buckler.
Bebenek . Eck
2000 Frick Building
Pittsburgh, PA 15219
I will notify all parties in writing within two days
been listed for argunent.
Allen C. Warshaw, Esquire
Duane, Morris. Heckscher
305 N. Front Street
Harrisburg, PA l7l08-1003
that this case has
Yes.
4. ArgIment Court Date:
January J l. 1996
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Attorney for De f endant. McOonough Caper'ton
Insurance. now known as Acardia Insurance
lEtoo: December 27, 1995
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