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DARRYL BURGESS
Plaintiff,
v.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
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I NO. 94-5314 CIVIL TERM
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, JOSEPH LEHMAN,
JEFFREY A. BEARD, KENNETH A.
KYLER, CARL HAMBERGER and
KATHY MONTAG,
Defe:ldants
IH-REI DEFENDANTS' PETITION FOR JUDGMENT OF NON PROS
BEFORE OLER. J.
OPINION and ORDER OF COURT
Oler, J., June", 1997
In this civil case, Plaintiff, an inmate at the State
Correctional Institution at Camp Hill, alleges that he was injured
while moving a chair under the direction of prison authorities.
Plaintiff asserts that Defendants, the Pennsylvania Department of
Corrections, Joseph Lehman, Jeffrey A. Beard, Kenneth Kyler, Carl
Hamberger, and Kathy Montag, were negligent in failing to instruct
him on how to move heavy objects, failing to provide proper
equipment to move heavy objects, and failing to provide proper
medical care to Plaintiff after he was allegedly injured.
Presently before the court is Defendants' petition for
judgment of non pros due to lack of docket activity.
For the
reasons stated in this opinion, Defendants' petition will be
granted.
~TEMENT OF FACTS
The following facts are averred in Plaintiff's answer to
Defendants' petition for judgment of non pros:' Plaintiff, Darryl
See Pa, R.C.P. 206.7(c).
NO. 94-5314 CIVIL TERM
Burgess, is an inmate at the state Correctional Institution at Camp
Hill, Cumberland County, Pennsylvania.' On September 28, 1992,
Plaintiff was directed by prison authorities to assist two other
inmates in moving a barber's chair down a flight of stairs.' The
chair came apart while Plaintiff was moving it, spilling oil onto
the stairway.' Plaintiff slipped on the oil, lost his grip on the
chair, and was injured when the barber's chair landed on top of
him.'
Plaintiff brought civil suit against Defendants, the
Pennsylvania Department of Corrections and five Department of
Corrections officials or employees, seeking damages for injuries
allegedly caused by his fall. Plaintiff is proceeding pro se in
this action.
Plaintiff avers additionally in his answer to the petition as
follows:
Sometime after March 2, 1995, Plaintiff contacted a
certain law firm regarding the possibility of hiring the firm to
represent him in this matter,' In a letter dated November 1, 1995,
the firm indicated that it would be willing to represent Plaintiff
, Plaintiff's Answer to Defendants' Petition for Judgment
of Non Pros (hereinafter Plaintiff's Answer), paragraph 2.
,
rd.
rd.
rd.
,
,
Plaintiff's Answer, paragraphs 7-8.
2
NO. 94-5314 CIVIL TERM
and requested that he sign a contingency fee agreement and
authorize the release of his medical records 1;0 it. J Plaintiff
signed a contingency fee agreement on November 6, 1995, and
provided the firm with a letter of authorization for the release of
his medical records.. On March 26, 1997, Plaintiff received a
letter from the firm releasing him from the contingency fee
agreement.'
The firm never entered an appearance as Plaintiff's counsel in
this matter. Nevertheless, Plaintiff avers that, during the period
from November 6, 1995 until March 26, 1997, he believed that the
firm was actively representing him in the case .,.
PROCEDURAL HISTORY
The relevant docket activity which occurred in this case is as
followsl Plaintiff commenced the action by filing a complaint on
September 19, 19941 Defendants filed an answer with new matter on
October 26, 1994; Plaintiff filed a reply to the new matter on
December 19, 1994. An amended complaint was filed on January 27,
1995. Defendants filed an answer with new matter on February 13,
1995. Plaintiff's reply to new matter, filed March 2, 1995, was
the last docket activity recorded in this case until March 27,
7 Plaintiff's Answer, paragraphs 7-8, Exhibits a-c.
. Plaintiff's Answer, paragraphs 7-8, Exhibits A-B.
, Plaintiff's Answer, Exhibit c.
I. Plaintiff's Answer, paragraphs 9-10.
3
NO. 94-5314 CIVIL TERM
1997/ when Defendants filed the instant petition for judgment of
non prost based upon a two-year period of docket inactivity.
On April 1/ 1997/ pursuant to Pennsylvania Rule of Civil
Procedure 206.7/ this court issued a rule upon Plaintiff to show
cause why the relief requested should not be granted I the rule
provided a schedule for Plaintiff's filing of an answer to the
petition, for the completion of depositions, and for the submission
of briefs, upon which the issue would be decided. Plaintiff filed
his answer to the petition on May 1/ 1997. Both sides have
submitted briefs. No depositions have been filed.
DISCUSSION
Pennsylvania Rule of Civil Procedure 206.7 provides the
procedure for disposition of a ~etition after a rule to show cause
has been issued. Rule 206.7 provides that, "if an answer raises
disputed issues of material fact ... [and the petitioner does not
take depositions/] the petition shall be decided on petition and
answer and all averments of fact responsive to the petition and
properly pleaded in tho answer shall be deemed admitted." Pa.
R.e.p. 206.7(c).
The decision to enter a judgll'ent of non pros for lack of
docket activity is clearly within the discretion of the court.
Pennridge Elec., Inc. v. Souderton Area Joint School Auth., 419 Pa.
Super. 201, 206,615 A.2d 95,98 (1992). The Pennsylvania Supreme
Court has established a three-prong test which indicates the
4
NO. 94-5314 CIVIL TERM
oiroumstances under which this type of judgment of non pros may be
entered. Penn Piping, Inc. v. Insurance Co. of North America, 529
Pa. 350, 603 A.2d 1006 (1992). Under the Penn Piping test, a
judgment of non pros is pl'oper whenl (1) a party has displayed a
lack of due diligence I (2) there is no compelling reason for the
delaYI and (3) the delay has caused prejudice to the adverse party.
rd. at 354, 603 A.2d at 1008. In cases where the delay is two
years or more and the plaintiff fails to offer a compelling reason
for the inactivity, "the delay will be presumed prejudicial for
purposes of any proceeding to dismiss for lack of activity on the
docket." rd. at 356, 603 A.2d at 1008.
It is left to the discretion of the court, on a case-by-case
basis, to determine whether an explanation for delay is compelling.
rd. at 356 n.2, 603 A.2d at 1009 n.2. The Pennsylvania Supreme
Court has indicated that "[e]xamples of situations in which there
will be a per se determination that there is a compelling reason
for delay... are cases where the delaying party establishes that
the delay was caused by bankruptcy, liquidation, or other operation
of law, or in cases awaiting significant developments in the law."
rd.
It has been noted that the "compelling reasons for delay as
described by the Supreme Court all involve situations where svents
beyond the plaintiff's control impede progress." County of Erie v.
Peerless Heater Co., 660 A.2d 238, 241 (pa. Commw. 1995). Events
5
NO. 94-5314 CIVIL TERM
which are not beyond a plaintiff's control are not compelling
reasons for delay, because a plaintiff has a "duty to move the case
forward and to monitor the docket to reflect that movement." State
of the Art Medical Products, Inc. v. Aries Medical, Inc., ___ Pa.
Super. ___, ___, 689 A.2d 957, 960 (1997).
In the present case, there has been a two-year period of
docket inaCltivity from March 2, 1995 to March 27, 1997. Thus,
prejudice will be presumed and Plaintiff is obliged to show a
compelling reason for this delay. Plaintiff avers that, during the
period from November 6, 1995 to March 26, 1995, he believed that he
was being represented by a law firm and that the firm was moving
his case forward. Plaintiff maintains that the fact that he was
unaware that the law firm did not enter an appearance in his case
and was not moving his case forward constitutes a compelling reason
for the two-year delay. According to Plaintiff, it was the law
firm rather than he that caused the delay. Plaintiff contends,
therefore, that it would be unfair to penalize him for the two
years of inactivity which occurred in this case. Plaintiff's
argument, however, is not supported by case law.
The Pennsylvania Superior Court has declined to conclude that
the fact that a party was unaware that the party's counsel was not
moving the case forward constituted a compelling reason for delay.
Aimee's Touch, Inc. v. Kramer, 441 Pa. Super. 415, 418, 657 A.2d
992, 993-94 (1995). In this regard, the inaction of a plaintiff's
6
NO. 94-5314 CIVIL TERM
attorney is not the type of situation which is considered to be
beyond the party's control and, thus, is not considered a
compelling reason for delay.
In our view, the present case, in which Plaintiff is seeking
to exouse a period of inactivity on the ground that he was unaware
that a certain law firm was not representing him and moving his
case forward, presents a similar situation governed by the same
principle. Thus, even if Plaintiff's allegations in his answer to
the petition are true, it can not be said that a compelling reason
for the delay has been shown.
The court concludes that Plaintiff has displayed a lack of due
diligence in not monitoring the activity undertaken in his case or
moving it forward for a period of two years. There is no
compelling reason for this delay. Moreover, since the delay lasted
for a period of two years, prejudice is presumed. For these
reasons, the following order will be enteredl
ORDER OF COURT
AND NOW, this 16th day of June, 1997, upon consideration of
Defendants' petition for judgment of non pros and Plaintiff's
answer to Defendants' petition for judgment of non pros, and for
the reasons stated in the accompanying opinion, the petition is
7
III When the bot.tom of lhH ohllir t-:.lmtt off, oil (!,lmC from within
the 'lhllir and hi. B" Ilnd RplllHd on thl! RtepR.
12) The wHlght of the ehair pulled me down anothl!r atep and my
fool hit the oily R\:<'P whi'lh caual!d mf~ fel!t to (!umn out from un-
derneath me, and I eilm.! down, with thl! eh,llr on t.op of me, kn0<1k-
ing the wind out of ml!.
13) I hit my head, knlll!, and baek on the Rtl!el RtHpR and the
l1hair eaml! down again on th,! InRid.! of my right knee. I Wila dazed,
hurt, Rtunned, ahocked, aa well aa covered with oil. Defendant
HambergHr e.lml! over to me and IlHkHd if [ WIlR all right. I to Id him
I could not move, and he Raid he was going to eall the infirmary.
15) In .1pproximaUdy 15 t.o 20 minuteR later. a nUrHl! (Pat
Harnhart) arrived at Mod '3. She aaked me some queationa then
apoke t.o f)efendant 1IllmbHrger. She inform.!d me that it "lookf!d 1 ikl!
[ had a alight concusHion" and thllt r would need to go to the in-
firmary.
16) Defendant Hamb"rgt!r ordered t.wo inmates t.o wipe some of the
oil off of me, t.hen ordt!rt!d two ,!orreetionill offieerH and another'
two inmateR to "roll me in a blanket" off the stairs and onto a
atretcher. 1'hey then placed t.hl! at rt'tohl!r on it f lilt. stl!el eart.. r
waR not put in any kind of tract ion or anything tor my injurieB.
17) Two inmateH I.ht!n pUHh.!d m.! on thl! eart., ovt!r rockR and holt!s,
t.o t.he infirmary, which violently ..hook mt! ilnd ('iUlHnd grt'at pain.
It took about b!f\ mi,nutf!H to ',J.!t th"n!.
18) A doetor examined me and orderl!d that I he t.aken to ln~ cmer-
gl:OOY room .It. an out.Hid.! hORpit.al. ^ Wormlf!YHhurg ambulance pick.!d
me up and transportl!d mt! to U", hOHpital wherl! r WilS (!xamined ilnd
ordl!red (or x-raYH.
191 Upon I...turn III I,hn InllUluUolI, I Willi COl'IInd 10 w;llk b.Ulk lu
Mud ':1 urlllnr illY uwn JKlwnr, whinh ill OIboul. ;1 1/2 mi Ie willk OIruund
the llollllKmnd.
20) I W;1I1 nul \Ilvnn i1I1Y 1ll'!IH'!ill.ion Cor pain for ;Ibout I.hr'lI! daYR.
211 waR nul. .Ibl" 1.0 \Inl. oul of IH.d withuut. helll Cor i1boul. thrtw
(3) wn.~kR ,1IId my Illt';1l II h;ld to bn brou\Ihl. lo illY en II II i nee I waR
not able lo \10 .ml. on I.h,' I. i.!r i1nd lIill..
22) About ont! monlh .Ift.nr the ;wci.hml., wall \Iivt!n a neck brace
which I had I.u wt!i1r for I.hn nnxl. C. monl.hll.
23) 1 found out later from i1n oul.llide doctor from (:ommunlt,y Gen-
eral ORl.eollilthie 1I01lpil.i11 I.hlll. I would not nntld i1n ope rIll. ion
(yel), but that 111m \loin\l 1.0 hilvl! probltlmR wilh my neck, back,
and ri\lhl knet! for the n!lI!. of my I ifn. He proef!l!df!d 1.0 Rhow me
x-rays and explainnd lo me tht! exlnll!. and Rnvnrity of my injurieR
from lhiR accident. They wernl art' Neck (C-:\, 4, ~, 6,7) , baek
(L-3,4), and a Rtrain/l.orn Medicill Collillnrill Ligament in my righl
knee. I now walk with lhn aid of a knt!.! braet! i1nd a Clllle.
24) He (outRide doctor) reeommend..d "PhYllleal Ther.IPY", but the
SCI-e.lmp lIill Mndical (),.partmenl. h.11I not given me any.
25) Plaintiff had to walk to the other Ride of the inRtitution to
get medicalion at an "oulRidn" medi<:alion window in Rub-zero
wealher, rain, and Rnow, at lillleR havillg to Rtand outDide for a
half-hour or mort! jUlll lo rnceive medicill.ion t.hrt!t! timtlR a day.
26) AR a direct reRult of t.he ile.:idenl of Sept.:mbtlr 28, 1992 [ am
in Cllnlltanl pain and havt! not bmm ablt! to work lIin.:(..
l:1.i\I.'1!l
27) OefllndilntH hl!rrdn .Ifornmnnt.lolllld w<!l'n fully
Plaintiff's filII rl'sulllng In J>J;lillllff'H IIfWk,
juries.
Oefendilntll ill'''
r<! Ilptll\ II I b1l! for
Imck ilnd knee in-
safl!ty, prot.:,:t.lon,
'lUstody.
Oefendantll' t.otal dillrngard for J>lalntiff'll Rafety and
well-being, by not I!qulpping plilintiff with proper e'juipment to
undertake Ilu,:h a potentiali.ty dang(~roull taRk, ShOWR ohvlouH disre-
gard for plaintiff's Rilfety - all well all otherll.
28) Defendants were ~t;GhL~!'IJ' In that t.hey knl!w or should have
known about the problemll with moving Raid barbl:r chairs previ-
ously, from one plilce to another, without. proper equipment, all
there have been problemll in thill Inlllit.ution coneerning t.he Hame
I'!'.l,tlly ilnd pl'l'Hon,tlly rr:llponHible for the
and g'.:I",ral w"lfitrl: of all prlsonl!ra in t.h.lir
thing.
29) Defendants Ilhould not hilW! movlld Plalnt.lff without first put-
ting Plaintiff in rest.raint.s to rt!strict movement from possible
furthering damage to Injuries.
30) Oefnndants should not. have madn Plaintiff walk back to his
housing unit after hia aceident., nor walt. for t.hree days after
said accident to give Plaintiff medication, thnn make him walk and
Htilnd in limb-zero wnat.hl!r just. t.o reel! I VI! Ila id ml!d i cat ion.
31) Plaintiff ill In (!onlltant pain and on ml:dieat.ion. Plaint.lff Is
unable to undl!rt.ilke ilny form of st renUOUH work nor Iltand on his
feet for long Pl!riods of tlml!. Plaintiff fl:lds that t.he
Defendants' negligence caused Plaint.lff sublltant.iill injury to his
neck, back. and knl!e.
,
.
IN TIIB COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
CIVIl. DIVISION
DARRYL BURGBSS I
Plaintiff I No.
I
v. r
1f0lPl/N II' yu,'.l! I
CARL HAMBERGER. I
KATHY MONTAG, I
JEFFREY A. BRAND, et a 1. I
Defendants I
Ct:n'1'l nCATE OF SEnVICB
I. Darryl Burgess. Plaintiff, Pro Se, hereby certifies
that on this day I caused to be served a true and correct
copy of the foregoing documnnts, SUMMQ~S, ~1,EA, and CIVIL
TORT COMPL~]NT, by depositing the same in the United states
mail, first-class, postage pre-paid, addressed as followsl
Carl Hamberger, Mod-3 Unit Manager
SCI-Camp Hill '
P.O. Box 8837
Camp Hill, PA 17001-8837
Kathy Montag, Director, Medical Department
SCI-Camp Hill
P.O. Box 8837
Camp Hill, PA 17001-8837
KennEth Kyler, Acting Superintendant
SCI-Camp Hill
P.O. Box 8837
Camp Hill, PA 17001-8837
Jeffrey Beard. Acting Deputy Commissioner - central region
P.o. Box 598
2520 Lisburn Road
Camp Hill, PA 17011
Date: ~:r/9"" '
iJ1.4t~ &(.(..fk.<L-I
Darryl urgess
_:~.. :~.........._ 'WI;,;Ji.":;ifi.'~.fIt,;;~ .''':,- ;;;-
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I. KIn-
GENERAL
You are reminded that situations may arise which are not covered by specific rules and regulations" you
are urged to use goorl Judgment.
I. Tampering with. removal of. dnmage to. destruction of. blocking of. or In any way making Inoperable
any lock. door. locking device. allied equipment. or any nre or surety equipment Is prohibited.
2. 11111<'5515 to be n'llClrkd to the officer or supervisor or slafT member In charge of the area you are In.
11ll're are regular ",'lll'dulcs for roullne visits to Ihe medical department. Emergeney sltuaUons
are IHlIlll"~d Immediately.
3. Any sexual behavior Involving another person whethcr volunlary or InvoluntAry 15 prohibited.
Any sUl'h condUIt will bl' trenh'd as mlsl'onduct and/or violation of law. '
4. Cutting or grooming of another InmAte's hall' Is not peJ'lnllled except by barbers or cosmellclans In
the barber/beauty shop an'n dl'slgnated for such 5Crvlees.
5. Inmah~5 may notl'ongn'gate nor hold nny group meellngswlthout propernpprovalofstafT. FaeH,
Itks and locations as Available will be sdll'dulcd for Authorized meetings. Inmates may not form
orltanl~.atlolls without approval of Ihe Superlntend'~Ilt.
6. Possession or clrculatloll of petitions Is prohibited.
7. Practicing of Marilnl Arts such as ,Judo. Karate. or other arts of self-defense and drilling or
marching are not peJ'lnllled.
rt,
8. Followlng'lrders: You Will. at various llmes, be given orders by officers. work supervisors. and other
mcmbers of the Institution stalT. When you receive un order you nlust promptly and properly do as
you are Instructed. You must Immediately give your name and Institutional number to any employee
when you are requested to do so. and show your I.D. card upon request by any employee.
If you have received connlctlng orders from dlfTerent stafT members you must:
a. If possible. advise the person giving you the last order of the conntcUng orders you have
rece Ived.
b. Always obey the last order given.
c. If you feel an order Is unjust. youlllust obey the order when It Is given. You may make a
formal or Infonnal complaint to a higher ranking official at a later time.
9. Absence from asslllned location without prior knowledge and permission from an employee Is not
perrnllted.
10. Addresslnlt Staff Personnel: Inlllates should approach all stafT personnel with respect and COUl-
tesy. StafT personnel should be addressed by their lHle (Superintendent. Captain. Doctor. etc.) or
by "Mister" and If their last name Is known ("Mister Smith". etc.) or by "Sir" If their correct UUe or last
name 15 not known. For women. the appropriate Mrs.. Ms., Miss. Ma'm. ete. should be used.
o
II. OlTIclal Notices: You an' responslhle for keepln~yourselflnforrned of all current and new Institutional
rules. rel!ulations and notices which WIll be posled on the housing area bulletin boards or given to
you. All notices and signs pn'pan'd by officials of the Institution or Department of Corrections are
consl(kred regulations and lIlllst be strictly [ollowed.
3
Pollc)' SubJcctl
INMAn: DISCIPUNARY AND RES11UCTED
HOUSING PROCEDURES (DC-ADM 801
---.----.-. -.--..,..-------.-
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POLICY 8TATE~
CommoDwultb or PCDDI)'lnDla . DcputlllCDt Dr eomcUou
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PoUc)' NUlllber:
. -
fi
DC.ADM 801
II Datc or IlIuc:
LMay 20',109.1
AutborltYI
I!:rrccu.. Date:
Sept. 20. 1994
.._ .. .... __ n ._ _ __ __ _ _______
-. -- --- -- .----~_.~-- -.---------.-_-_.._--------
I. Authority
The authority of the Commissioner of Corrections to direct the operation of the Department of Cor-
rel'tlons 15 t'stnbli$hed by Scl'llons 20 I. 206. 506, and 901 lbl of the Administrative Code of 1929,
Act of April 9, 1929. P.L. 177. 175. as amended.
D. Purpose
A consistently applied system ofsancUons In response to Inmate violations of Departmcnt ofCorrec"
tions rules and regulations Is established to ensurc the safe and orderly operaUon of InsUtuUons and
Community Correcllons Facilities.
m. AppUcabWty
~
This policy shall be applicable to alllllmates and starT In all Department ofCorrecUons' facllJUes and
Community Correcllons Centcrs.
IV. DeOnltloDa
For the purpose of this policy. thc following deflnitions shall apply:
A. Ccntral Office Review Committee (CORC) - A panel of at least three (31 Central Office staff members
appointed by the Commissioner, including an attorney from the Office of Chief Counsel. which
conducts nnal reviews of InsUlullon grievance and mJsconduct appeals.
B. Disciplinary Custody - The maximum restrictive status of confinement to which Inmates guilty
of Class I misconducts may be committed. Inmates shall be placed In disciplinary custody status
for perltxls no longer than nincty (90) days per misconduct report.
C. Hearing Examiner - An employe of the Department of CorrecUons Central Office who conducts
Inmate misconducts hcarlngs. The hcaring cxamlner reviews evidence. dctermlnes relcvance of
witnesses. Interviews Wltnesscs, detennlncs guilt or Innocence, and Imposes sanctions consistent
with this policy.
D. Misconduct- Any violation of Department of Correctl on 15 Rules. RegulaUonsor Policies as outlined
In Seclton VI of this polll'Y.
E. Pre-lIearing Conflnemt'nt - A temporary admlnlstrativc slatus of connnement In the Inmate's
general populatloncdl or rhe lUlU pending the outcome of a misconduct hearing.
(II
52
"
F. Program Review Commlllee - A panel of three (3) members consisting of the two (2) Deputy Su"
perllltendents. Inmate Program MAlinger. or Unit MW1Ager. The Superintendent may designate
appropriate substltutes, The Program Review Committee conducts Administrative CU!ltody
hearings. thirty (301 day reviews, makes decisions about conUnued connnement In the RHU/
SMU. And hears all appeals of misconducts.
O. Restricted Housing Unit. An area or group of cells for Inmates assigned to disciplinary or admini-
strative custody status.
H. Special Manag~ment Unit. (SMU) A special unit wllhln designated Department ofCorreetlonsln-
stltutlons deslgnatl'd to sofely "nd humarll'ly handle Inmates whose hehavlor presents a serious
threat to Ule safety and security of the facility. staff. other Inmotes. or him or herself.
J. M~ntnllleallh Cast:s - Inmates who have aml'ntnl health stnblllty score of 3 or above. are listed
on the InstJtutlon's Psychiatric Review Team roster. or In the opinion of the stalT. may be sufTertng
from II serious nlt'ntnllllness.
V. PoUe)'
It Is the polley oflhe Department ofCorrectJons to operate a disciplinary process which provides clear
notice of prohibited behavior. outlines a fundamentally fall' hearing process. and establ(shes consis-
tent sanctlons for violations of Department of Corrections nlles and regulaUons.
VI. Procedure
All Inmates under the jurisdiction of the Department of Corrections are expected to follow the rules
and regulations. This section provides a list of prohibited behavior whteh can result In miseondur.t
charges. the misconduct hearing procedures. and the appeal procedures.
~
A. lIl.conduct. Cbar,e.
Class I Charies Cateiory A
I. VlolaUon of the PA Crimes Code (must be speelftedl
I.a. Assault - Including any aggres-
sive physical contact with a
potenUal for Injury towards
an employe.
Lb. Murder 1.1.
I.c. Rape I.j.
I.d. Arson I.k.
I.e. Riot 1.1.
I.f. Escape I.m.
I.g. Robbery Ln.
I.h. Burglary
Kidnapping
Aggravated Assault
Voluntary Manslaughter
Extortion by Threat of Violence
Involuntary Deviate Sexual Intercourse
Threatening an Employe or Their Fam1Iy
with BodIly Harm
.~
Class I Cllilries Cat~..a
2. Flghtlng.
3. Threatening another person.
4. Engaging In sexual acts With others. or sodomy.
5. Wearing a disguise or mask.
6. Failure to report an arrest for any violation of the Pennsylvania Crimes Code (Community
CorrecUons Centers only).
7. Refusln to obe an order.
/[ Possession 0 contraban Including money. Implements of escape. unprescribed drugs or
drugs whleh are prescribed, but the inmate is not authorized to possess. drug paraphernalia.
53
,
DC.ADM 801
poisons. lntoxll'(ults. IIlllterlals usetl for fenuenlaUon. property of another. weapons or other
Items which In the hands of an Innlllte present a threat to sell. others or to the security of the
Inslltutlon. When Illllnlllate Is dmrged under UIIs 5('('Uon with possession or an Item of con- r
traband which Is a weapon or Item which In his hands presents a threat to others or to the ·
seeutity of the InsUtuUon. IInd the Item also has a legllJmllte use III the area discovered. credi-
ble eVIdence that the Item has been used only for the legitimate purpose shall be considered
to IIllllgate the misconduct to II CllIss II.
0, Possession. or use of a dllngerous or controlled substllnce.
10. Possession. or use. oflntoxklltlllg beVt'rages.
II. Extortion. or blacknmll.
12. Any viola lion of the PenllsylvlllIlll Climes Code nolln Cntegory I (must be specined).
rlj}!i!iJSJJ!\1'lL!:l\..D!lr.~~~
13. Tattooing. or other forms or sl'lf mutilation.
14. Destroying. altering. tllmperlllg with. or damagllll\ property.
15. Indecent exposure.
16. Engaging In. or encouraging unauthoti/.ed group activity.
17. Refusing to work. or encouraglllg others to refuse to work.
18. 13reaklng restriction or quarantine.
19, Gambling or conducting a gambling operalJon.
20. Unauthorized use of the mall or telephone,
21. Possession or circulation of a petition, which Is a document signed by two or more persons
requesting or demanding that something happcn or not happen. without the authorization of
the Superintendent.
22. Using abusive or obscene language to an employe.
Class I Charlles Catellory D
23. Failure to stand count or interference with count.
24. Violating a condition of a pre-release program (must be spectned),
25. Violation of VIsiting regulallons (must be spccifiedl.
26. Lying to an employe.
27. -Prescnce In an unauthotil.ed area.
28. Loaning or borrowtng property.
29. Failure to report the presel1l'e or contraband.
-
C lass II Charlles
30. Body punching. or horsc play,
31. Taking unauthorized food from the dining room or kitchen.
32. Failure to report to work. or unexcused abscnce from work.
33. Smoking where prohibited.
34. Possession of any item not authorized for retenllon or receipt by the Inmate not speclflo:ally
enumerated as Class ( contraband.
35. Any vlolaUon of a rule or regulation In the Inmate Handbook not spedned as a Class I mis-
conduct charge.
B. Any atielllpt to commit any of the above listed charges shall constltute a misconduet of the same
elasslfication as the completed act would be.
C. Mbeonduet Sanctions
I. Misconduct sanctions shall be Imposed by the hearing examiner.
2. Inmates found guilty of Class I misconduct charges may be subject to anyone or more of the
followtng sanctions: "
a. Assignment to disciplinary custody status for a period not to exceed n!nm (90) ~ per
miSI'onduct report.
51
DC.ADM 801
~
b. Cell restriction for a period not to exceed thlrly (301 daytl per misconduct report. Cell rClltrlc:.
tlon Is totul connnement to general population cell. dorm area or cubicle. except 1'01' meals
showerll. one (I) fonna) religious service per week. commissary. law library and one III
tlpcclned daily rxerclse )l<:liod, Participation In programs. 5chool. and work are suspended.
c. I.(Hltlofprlvilegetl fora prescribed period of lime. Prlvllcgetllost must be speetncally Identlned
and ~hould. wllt're possible, be related to the mltlConduct violation.
d. Payment of fall' value 1'01' property lost or damaged or for expenses Incurred as a result or
the mlsl'onduet.
e. Ikplimand. warning, counselling.
f. Suspension or removal from job.
g. Connsmllon or conlrnbl.lud.
,
h, I~evocatlon of pre-relea:;e status.
3, The hcarlng examiner may reduce the dasslOcatlon or any Class I misconduct (exeept
Category A charge~) to a Cluss IImlsconduet.
..i... Inmates found guilty of Class 11 misconduct charges are subject to one or more of the above
sanctions tx.!:ntl placement In disciplinary status. cell reslrtctJon, change orcustody level. and
10155 of pre-release status. The only pcnnlsslble sanction for Class II category contraband Is
connscation of the contraband.
....2.:.. Presumptive range of misconduct sancUons.
C#f
Class I Charl/es Cateeory A
No less than 30 days disciplinary custody status
No more than 90 days disciplinary custody status
Class I Charlles Cate~orv B
No less than 30 days cell restrieUon
No more than 60 days disciplinary eustody status
Class I Chaqles CatellOry C
No less than 15 days eeU reslrtctlon
No more than 30 days disciplinary custody status
Class I Charl/etia!ellOry D
No less than 15 days loss of prlvlleges
No more than 15 days disciplinary custody status
Class II Charecs
No less than 5 days loss of privileges
No lJIore than 15 days loss of privileges
'-
The hearing eXillJllner WIll have the authority to Impose a tenn which deviates (rom the presump-
tive sancUonlng range (except In cases of bodily harm or injury). If the hearing examiner does vary
from the presumptive range. the rallonale lor the exception must be documented as part o( the
record of the hearing.
6. Time given for mlscondul'ts involving bodily Injury. and attempt to commit bodily InjUry. or
use of a weapon ...ill be served In Its entirety. For other misconducts, the Program Review
Commlllee may consider a rell'ase to g'.'Ilernl population upon compleUon or half or the sanc-
tion Imposed.
55
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. ..
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To
You ere hlteb, notified to pIHd to lilt
encI-.I
wttllln (20) .,'1 01 MrvIce hereof or .
.,.uII l....m.nt m., ... .nllrld ypon ,OV.
By ,
TORTS I.ITIGATlON UNIT
oFfla o. AnOllNIV GINIIW
11th PI. ShwbtrtY SqUire
Hlrriaburll, PA 171 20
I CIItIt, that lilt within II
. _ .nd comet COW.
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DARRYL BURGESS,
Plaintiff
v.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
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CIVIL ACTION - LAW
JURY TRIAL DEMANDED
KENNETH KYLER,
CARL HAMBERGER,
KATHY MONTAG,
JEFFREY A. BEARD, et al.,
Defendants
NO. 94 - 5314 Civil
ANSWER AND NEW MATTER OP DEPENDANTS
TO PLAINTIFF' S COMPLAINT
Defendant, Conunonweal th of Pennsy1 vania, Department of Corrections,
by and through the Office of Attorney General, files the following
Answer to Plaintiff's Complaint I
1. Denied as a legal conclusion to which no responsive
pleading is required.
2. Denied as a legal conclusion to which no responsive
pleading is required.
3. Denied. After reasonable investigation, the Conunonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
4. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
5. Denied. After reasonable investigAtion, the Commonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
6. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
7. Denied. After reasonable investigation, the Commonwealth
Def~ndant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
8. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
beliof as to the truth of these averments.
9. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
10. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficl.ent knowledge or information to form a
belief as to the truth of these averments.
11. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
12. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
13. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
14. Due to mistake in numbering of paragraphs, Plaintiff's
Complaint did not contain a paragraph No. 14.
15. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
16. Denied. After reasonable investigation, the Conunonwealth
Defendant i8 without 8ufficient knowledge or information to form a
belief a8 to the truth of these averment8.
17. Denied. After reasonable inve8tigation, the Conunonwealth
Defendant i8 without sufficient knowledge or information to form a
belief a8 to the truth of these averments.
18. Denied. After reasonable investigation, the Conunonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
19. Denied. After reasonable investigation, the Conunonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
20. Denied. After reasonable investigation, the Conunonwealth
Defendant is without sufficient knowledge or information to form 11
belief as to the truth of these avelments.
21. Denied.' After reasonable investigation, the Conunonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
22. Denied. After reasonable investigation, the Conunonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
23. Denied. After reasonable investigation, the Conunonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
24. Denied. After reasonable investigation, the Conunonwealth
Defendant is without sufficient knowledge or information to form a
belief a8 to the truth of these averments.
25. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
26. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
27. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
28. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
29. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
30. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
31. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
32. No responsive pleading is required.
WHEREFORE, Commonwealth of Pennsylvania, Department of
Corrections, respectfully requests that judgment be entered in its
favor and against all other parties.
NBW HATTER
33. Tho present action is controlled by the provisions of 1
Pa. C.S. 52310 and Act No. 1980-142, set forth in 42 Pa. C.S.
558501, et seq., which Acts are incorporated herein and pled by
reference. The Commonwealth Defendant asserts all the defenses
contained therein.
34. The Commonwealth party is immune from suit pursuant to 1
Pa. C.S. 52310, and this action is not within any of the exceptions
to immunity as set forth in 42 Pa. C.S. 58522, and therefore this
action is barred.
35. The Commonwealth party has immunity for any claims of
apparent or ostensible agency, as immunity has not been waived for
either of these classes of claims.
36. The Commonwealth party is immune from claims grounded
upon negligence of independent contractors.
37. The Commonwealth Defendant had no duty with respect to
the Plaintiff.
38. Should liability be found on the part of the Commonwealth
Defendant, the amounts and types of damages recoverable in the
present action are limited and controlled by 42 Pa. C.S. 58528.
39. The Judicial Code at 42 Pa. C.S. 55522(a), which section
is incorporated herein and pled by reference, provides that the
Commonwealth and the Attorney General must have received written
notice of intent to sue within six (6) months from the date the
cause of action accrues. In the absence of such notice, this
action is barred.
40. The Commonwealth Defendant avers that if negligence is
found to exist on its part, said negligence was not the proximate
cause of Plaintiff's injuries.
41. If the accident occurred as alleged, then the condition
complained of did not create a reasonably foreseeable risk of the
accident or the injuries complained of.
42. The causal negligence of the Plaintiff is greater than
any negligence on the part of the Commonwealth Defendant, and
Plaintiff's recovery is therefore barred, or, in the alternative,
must be diminished in accordance with the Pennsylvania Comparative
Negligence Act.
43. Defendant, Kenneth Kyler, at all times relevant hereto
was an employee of the Commonwealth of Pennsylvania, Department of
Corrections, who was acting wi thin the course and scope of his
employment.
44. Defendant, Carl Hamberger, at all times relevant hereto
was an employee of the Commonwealth of Pennsylvania, Department of
Corrections, who was acting wi thin the course and scope of his
employment.
45. Defendant, Kathy Montag, at all times relevant hereto was
an employee of the Commonwealth of Pennsylvania, Department of
Corrections, who was acting wi thin the course and scope of his
employment.
46. Defendant, Jeffrey A. Beard, at all times relevant hereto
was an employee of the Commonwealth of Pennsylvania, Department of
Corrections, who was acting wi thin the course and scope of his
employment.
47. As a Commonwealth employee acting wi thin the scope of his
duties, Defendant, Kenneth Kyler, is, thus, a "conunonwealth party"
as defined by 42 Pa. C.S. S8501.
48. As a Conunonwealth employee acting within the scope of his
duties, DefendLt,nt, Carl Hamberger, is, thus, a "Conunonwealth party"
as defined by 42 Pa. C.S. S8501.
49. As a Conunonweal th employee acting wi thin the scope of his
duties, Defendant, Kathy Montag, is, thus, a "Conunonwealth party"
as defined by 42 Pa. C.S. S8501.
50. As a Conunonwealth employee acting within the scope of his
duties, Defendant, Jeffrey A. Beard, is, thus, a "Conunonwealth
party" as defined by 42 Pa. C.S. S8501.
51. The Conunonwealth Defendants are specifically entitled to
the defenses set forth in 42 Pa. C.S.A. S8524, which section is
incorporated herein and pled by reference.
52. The Commonwealth Defendants invoke any and all conunon law
defenses available to it pursuant to 42 Pa. C.S. S8524.
53. The Commonwealth Defendants are immune from claims
grounded upon negligent supervision or employment.
54. The Conunonwealth employees are immune from claims
alleging intentional tort.
55. Employees of an agency of the Commonwealth of
Pennsylvania cannot be vicariously liable for the acts of others
lower in the chain of command of the agency.
WHEREFORE, Commonwealth of Pennsylvania, Department of
Corrections, respectfully requests that judgment be entered in its
favor and against all other parties.
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6. Denied. After reasonable investigationl the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
7. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
8. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
9. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
10. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
11. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
12. Denied. After reas<.:lnable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
13. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
14. Denied. After reasonable investigation. the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
lS. Denied. After reasonabh investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
16. Denied. After reasonable invest igation, the Commonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
17. Denied. Afte.r reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
18. Denied. After reasonable investigation. the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
19. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
20. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
21. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
22. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
23, Denied. After reasonable invest.igation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments,
24. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
25. Denied. After reasonable investigation, the Commonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
26. Denied. After reasonable invest igation, the Commonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
27. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient kncwledge or information to form a
belief as to the truth of these averments.
28. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
29. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
30. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
31. Denied. After reasonable invest igation,. the Commonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
32. Denied. After reasonable invest igation, the Commonweal th
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these ~verments.
33. The allegations set forth in this paragraph of
Plaintiff's Complaint constitute conclusions of law to which no
responsive pleading is required pursuant to the Pennsylvania Rules
of Civil Procedure. To the extent that portions of this paragraph
could be construed as factual allegations, said allegations are
specifically denied, and strict proof thereof is hereby demanded at
the time of trial.
34. The allegations set forth in this paragraph of
Plaintiff's Complaint constitute conclusions of law to which no
responsive pleading is required pursuant to the Pennsylvania Rules
of Civil Procedure. To the extent that portions of this paragraph
could be construed as fa~tual allegations, said allegations are
specifically denied, and strict proof thereof is hereby demanded at
the time of trial.
35. Denied. It is specifically denied that the Commonwealth
Defendant was negligent in any manner with respect to Plaintiff's
alleged cause of action.
36. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
37. Denied. It is specifically denied that the Commonwealth
Defendant was negligent in any manner with respect to Plaintiff's
alleged cause of action,
38. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
39. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
40. Denied. After reasonable invest igation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
41. Denied. After reasonable investigation, the Commonwealth
Defendant is without sufficient knowledge or information to form a
belief as to the truth of these averments.
WHEREFORE, Commonwealth of Pennsylvania, Department of
Corrections I respectfully requests that judgment be entered in its
favor and against all other parties.
NEW MATTER
42. The present action is controlled by the provisions of 1
I
Pa. C.S. 52310 and Act No. 1980-1421 set forth in 42 Pa. C.S.
558501, et seq., which Acts are incorporated herein and pled by
reference.
The Commonwealth Defendant asserts all the defenses
contained therein.
43. The Commonwealth party is immune from suit pursuant to 1
Pa. C.S. 52310, and this action is not within any of the exceptions
to immunity as set forth in 42 Pa. C.S. 58522, and therefore this
action is barred.
44. The Commonwealth Defendant did not have notice, written
or otherwise, of the alleged dangerous condition.
45. The Commonwealth party has immunity for any claims of
apparent or ostensible agency, as immunity has not been waived for
either of these classes of claims.
46. The Commonwealth party is immlJne from claims grounded
upon negligence of independent contractors.
47. There is no cause of act ion based upon a failure to
inspect or improper inspection in that sovereign immunity has not
been waived for such claims.
48. The Commonwealth of Pennsylvania is immune from claims
alleging the existence of a dangerous condition on Commonwealth
property rather than of Commonwealth property.
49. The Commonwealth Defendant maintains that it cannot be
sued for discretionary functions, and therefore these causes of
action are barred.
50. The Commonwealth Defendant avers that recovery cannot be
had against it for the exercise of authorized discretion.
51. The Commonwealth Defendant had no duty with respect to
the Plaintiff.
52. Should liability be found on the part of the Commonwealth
Defendant, the amounts and types of damages recoverable in the
present action are limited and controlled by 42 Pa. C.S. ~8528.
53. Punitive damages are not recoverable against the
Commonwealth Defendant.
54. This action is barred by the applicable statute of
limitations.
55. The Judicial Code at 42 Pa. C,S. ~5522(a), which section
is incorporated herein and pled by reference, provides that the
Commonwealth and the Attorney General must have received written
notice of intent to sue within six (6) months from the date the
cause of action accrues. In the absence of such not ice. this
action is barred.
56. Plaintiff's injuries, as alleged, were caused by other
persons or parties which were contributory and/or intervening,
superseding causes of Plaintiff's alleged injuries.
57. The Commonwealth Defendant may not be held responsible
for injuries incurred by third parties which werd allegedly caus~d
by the acts of another.
58. The Commonwealth Defendant avers that if negligence is
found to exist on its part, said negligence was not the proximate
cause of Plaintiff's injuries.
59. Plaintiff's knowing and conscious assumption of the risk
led to the resulting injuries and is a bar to recovery.
60. The causal negligence of the Plaintiff is greater than
any negligence on the part of the Commonwealth Defendant, and
Plaintiff's recovery is therefore barred, or, in the alternative,
must be diminished in accordance with the Pennsylvania Comparative
Negligence Act.
61. Employees of an agency of the Commonwealth of
Pennsylvania cannot be vicariously liable for the acts of others
lower in the chain of command of the agency.
62. Liability on the part of the Commonwealth Defendant is
specifically denied.
WHEREFORE, Commonwealth of Pennsylvania. Department of
Corrections, respectfully requests that judgment be entered in its
favor and against all other parties.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
TORT
DARRYL BURGESS,
Pl ai nti ff
AND NOW, on this
day of
, 19
KENNETH KYLER,
CARL. HAMBERGER,
KATHY MONTAG,
JEFFREY A. BEARD,
NOI 94-5314
CIVIL TERM
ORDER
upon consideration of the plaintiff's response to defendant's
answer in the above matter defendant's motion for summary Judg-
ment is denied. Plaintiff is to file an amended complaint with
the Prothonotary's Office with service upon the defendants and
the matter is to proceed to trial.
BY THE COURTe
J.
THEREFORE, plaintiff requDstfi
def~ndant's motion for jUdQment ~nd
to tdal.
this Honorable Court deny
allow this matter to proceed
Respectfully submitted,
DatelL )~/99V
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1'1'.01 1 ~ INHATI ACCOUNTS SVSTEM
. Ml MONTH LV ACCOUNT STATEMENT
INHATE NAM!
NUMBIR LAST FIRST MI
AF7740 BURGESS DARRVL
BATCH DATE
I MO DY YEAR TRANSACTION DESCRIPTION
1970 10-06-1994 10 HAINTBNANCE PAVROLL
PAYROLL GROUP 1 (9/4 TO 10/1)
2086 10-17-1994 32 COMMISSARV
14 OCTOBER 1994
10-18-1994
1806C
OLD BALANCI
-3.04
TRANSACTION BALANCI ArTIR
AMOUNT TRANSACTION
14.40
-11.03
NEW BALAMCE AS or THIS STATEMENT --______________~__>
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Ilt. HAl' 7740
S.C.r. ClImp IIltl
P.O. Ilox 200
Camp IIlll, PA l7001
April 7, 1995
G. Michael Thiel
Deputy Attorney Generlll
Office of the Attorney Generlll
TortH Lltll,lntlon Unit
l'lth Floor
Strllwberry Square
Hnrrlsburl,l, PA 17120
Re; !lurl,leRS V. Dl'pt. of Correct Ions, et ul.
Cumbl'rlund County Docket No~ 94-5314.
Dear ~lr. Thlel~
Plellse be awurl' thllt your clients In the above cited
matter ore enl,lllglng In u courRe of conduct that will be con-
sidered harllssml'nt If If It cont Inues.
On or about April 3, 1<J<J'i. ~Ir. 1I0ffmun, the Unit Manager
of Mod #11 ordered thut I remOVl' 1I nose ring that I have worn
for years Ins Ide thl' Inst I tut ion. At the time of this inc Ident
Mr. 1I0ffmon was turning over ml'dlClIl rl'cords that I requested
from you on February 2H, I <J9'i.
Also note thut thl' court hns grnntl'd a petition to proceed
in forma pauperis In this matter. Your clil'nts have charged
a fee to my account for receipt of a portion of these records.
If your cllellts cOlltlnue In this conduct I will seek
u restraining order. In addlt Ion I will pursul' any avni lable
legal remedies. As to your clients billing my account I am
formally requesting rl'lmbersment of thl'se fees.
Thank you for yohr time and uttentlon In this matter.
Slncere'ly yours,
.(:)zcu;e'&t 1:J<-..M'
Darry I Burgess
OBI
equipment to move the burber's chuir, fuiling to provide proper medicul cure, fuiling to provide
prompt medical care, und forcing Plaintiff to wulk to the inlinnury to receive his medicution. The
Commonwealth Defendants filed their Answer alld New Maller on February 10, 1995. PlaintiO'liIed
Pluintiff's Response on or ubout March 2, 1995. Since that time. PlullltilThas fuiled to conduct uny
discoveryl depose any witnesses or tuke allY uction whutsoever to udvUl1ce this litigation, despite the
fact that he had been provided with copies of his medical records.
II. Question Presented
WHETHER THIS COURT SHOULD GRANT A JUDGEMENT OF NON PROS
WHEN PLAINTIFFS HAVE FAILED TO PROSECUTE THE CAUSE OF
ACTION FOR MORE THAN TWO YEARS?
(Suggested answer: Yes).
III. Argument
Plaintiffs have not tiled a document in this mailer since replying to the Commonwealth
Defendants' New Maller on May 2, 1995. Furthermore, it has been four and one half years since
the incident giving rise to this cause of action. There is no compelling reason for the Plaintifrs
extraordinary delay in prosecuting this case. By operation of law, the Commonwealth Defendants
arc presumptively prejudiced by the unexplained passage of more than two years. Accordingly, a
judgment of non pros is appropriate.
The equitable tool of a judgement of nOli pros has evolved as a mechanism 10 ensure that
plaintiffs do not take advantage of defendants through dilatory tactics. In order to ensure the
4
prosecution of u civil uetion with r~usonuhlc promptitude, u defendunt is uflorded Ihe right to seck
ujudgement of non pros for dduy inthc pluintifl's pursuit oftriul. See COIIIIIIOl,wealt', \'. SWlftl 241
Pu. Super. 359.361 A.2d 688 (1976); f'lm !'lllIey IlllI/k I'. SteilflllulIlI, 253 I'u. Super. 8, 384 A.2d
949 (1978). The detemlinution of whether to enter u judgemcnt of /10/1 pros for wunt of prosecution
lies within thc sole discretion of the trial court. Moreover, a judgement of 11011 pros will not be
disturbed unless the trial court commits a manifest abuse discretion. Curter v. Amick, 246 Pa. Super.
530,371 A.2d 961 (1977).
It is well-cstablished in this Commonwealth that ajudgement of /10/1 pros for delay in the
prosecution of a civil cause of action is appropriatc if three conditions exist: (I) the plaintiff has
shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no
compelling reason for the delay; and, (3) the delay has caused prejudice to the defendant, which will
be presumed in cases involving a delay for a period of two years or longer. Pelll/ Pip/ilK, [IIC. v.
It,surallce Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992); see also Pille TowlISl,ip
Water Co., It,c. v. Felmollt Oil Corp., 425 Pa. Super. 473, 625 A.2d 703 (1993); NeshamillY
COlIstructors, It,c. v. Plymollth Tow/U,/,ip. 132 Pa. Cmwlth. 229, 572 A.2d 814 (1990).
Historically, the crucial issue is whether the plaintiff, under all the circumstances of the
particular case, failed to exercise due diligence in moving the case towards trial. See e.g. R/zzo v.
Pittsburgh R. Co.. 226 Pa. Super. 566, 323 A.2d 174 (1974). A lack of due diligence has been found
to exist where there is a long-tenn lack of progress in the case and a failure to conduct discovery.
Moore v. George Heebller, 321 Pa. Super. 226,467 A,2d 1336 (1983). These circumstances are
present in this case.
5
with a signed authorization granting the said Jaw flrm acceSH to
Plaintlff'E\ medical files whlch were received by the firm from the
Office of Attorney General. 'rhe Contingent Fee Agreement and signed
authorization for medical records are attached hereto, marked
Exhibits "A" and "B" and are incorporated herein by reference. Also.
attached hereto as Exhibit "C", is a letter dated March 26. 1997 from
the said law firm addressed to Plaintiff in which it was indicated to
Plaintiff that the firm had received Plaintiff's medical files
through the Attorney General's Office. It is therefore apparent that
some discovery has taken place.
B. Denied. As indicated above, Plaintlff signed a Contingent Fee
Agreement with the law firm of Farage & McBride to prosecute this
action on Plaintlff's behalf. Exhibit "A". Also. by letter dated
November 1. 1995, the said firm agreed to represent Plaintiff
pr'ovided he sign the said Cont ingent Fee Agreement. Plaintiff has
attached the said letter hereto, marked Exhibit "0", and is
incorporated herein by reference.
9. Denied. Plaintiff was fraudulently led to believe that he had
legal representation in this matter, Exhibits "A" through "0", and he
was completely unaware that this case was not proceeding in the
proper manner. Had Plaintlff known otherwise. he would have taken the
necessary steps to pursue this matter appropriately.
10. Denied. Plaintiff incorporates his answer in paragraph 9 in
this paragraph insofar that he was fraudulently led to believe he had
legal representation in this matter and that he was unaware that thIs
2
case was not proceeding in a proper manner.
11. Admitted in part, Denied in part. It is Adm\.tted that
Defendants may have sutfered some prejudice. I t is Denied that the
prej ud ice requi res dismissal under Pl!n!1J~.1!!.1n!LlJl--"-L_y.LJ_nsurance~
of North AmerLca, 529 Pn. 350, 603 A.2d 1006 (1992) because by
"operation of law". l.e.. fraud. Plaintiff was not the direct cause
of the delay. Penn Piping provides that whflre the delay has been
caused by bankruptcy. liquidation. or other operation of law. there
will be a per se determination that a compelling reason for the delay
has occurred, and other compel 1 ing reasons may be determined on a
case-by-case basis. Penn Piping. 529 PI). at
n.2. 603 A.2d at
1009 n. 2. Plaintiff alleges that the fraud he suffered by his
attorneys meets the "other compe 11 ing reasons" con templated by Penn
EIDllll.
12. Denied. For the reasons stated in paragraphs 9 through 11.
Defendants are not entitled to a :J udgment of non pros.
WHEREFORE. Plaintiff respectfully prays that this Honorable
Court deny Defendants' Pet i tion for Judgment of Non Pros for the
reasons stated herein.
Respectfully submitted.
CJI2~L&,: )~~J
~YLBURGESS, pro e,
Plaintiff
Darryl Burgess, " AF-7740
P.O. Box 200
Camp Hill, PA 17001-0200
Date: April 25. 1997
3
,
VBRIFICATION
I. DARRYL BURGESS. hereby verity that the statements made on the
foregoing are true and correct to the best of my personal knowledge.
information and beliet. I understand that any false statements made
therein are subject to the penalties provided for by 18 Pa.C.S. !l
4904. relating to unsworn falsification to authorities.
~~' ""
. .. Jj-::Li,{,:e.a-C'.2iL-._.
D RYL R EBS ---;7'-
Date: April 25. 1997
F.XlIlnI'r_~
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rARAGE AND McBRIDE
OOt'll"'i,I.)..l ,.,a.fl'-'l)[
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tHE'U', HILL, NJ 1)80.U
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Maroh 26, 1997
Mr. Darryl Burgess
Rt. Af-7740
P.O. Box 200
Camp Hill, PA 17001-0200
ReI Burgess v. Pa. Dept. of Correotions, et al.
Cumberland County Docket No. 94-5314
Dear Mr. Burgess:
This will confirm my receipt of your letter of March 23, 1997.
First it is perfectly reasonable to approach opposing counsel
and request that he not take any action to dismiss your case until
we have had an opportunity to review your updated medical records.
It is also standard discovery procedure to request copies of
medical records from defense counsel which Attorney Goodemote was
willing to provide me on condition that I provide him with your
signed authorization. Next, after reviewing the medical records
which you provided us, we do not believe that your condition meets
the Dermanent iniurv and serious imDairment of bodilv function
that is required to overcome the state's immunity in this type of
action. Of cours., had your current medical records established
such an injury, w. were willing to reconsider our position.
On your cllse, I should remind you that I have spent a
substantial amount of time all without compensation. Therefore
given the tone of your recent letter I must recommend that you
retain other counsel and hereby release you from any and all
Obligations contained in the contingency agreement which you signed
with our firm. You therefore may consider this the R.l.... which
you requested. Finally I regret any misunderstanding and wish you
all the best in pursuing your case.
V~trulY yours,
/'l~".4i-~ .
THo~i(u~GIERI
TJR/zjw
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IN THB COURT OF COMMON PLEAS OF CUMBBRLAND COUNTY. PENNSYLVANIA
DARRYL BURGESS.
CIVIL ACTION--l.AW
Plaintiff
\
NO. 94-5314
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; JOSEPH LEHMAN;
JEFFREY A. BEARD; KENNETH A.
KYLER; CARL HAMBERGBR; and
KATHY MONTAG,
JURY TRIAL DBMANDED
(;1
Defendants
PLAINTIFF'S ANSWER TO
PBTITION FOR JUDGMBNT OF NON PROS
OF COMMONWEALTH DBFENDANTS
NOW COMES, Plaintiff Darryl Burgess by and through himself. who
hereby Answers Defendants' Petition for Judgment of Non Pros. and
avers as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
o. Plaintiff is unable to determined the accuracy of this
allegation because Defendants have failed to attach a copy of the
certified docket to the copy of the Petition that was served upon
Plaintiff. It is therefore DF-NIED_
7. Denied. On or about November 6, 1995. Plaintiff signed a
Contingent Fee Agreement with the law firm of Farage & McBride. along
,
,
,
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..,
with a signed authorization granting the said law firm acceSB to
Plaintiff's medical !i les which were received by the firm from the
Office of Attorney General. The contingent Fee Agreement and signed
authorization for medical records are attached hereto, marked
Exhibits "A" and "B" and are incorporated herein by reference. Also,
attached hereto as Exhibit "C", is a letter dated March 26, 1997 from
the said law firm addressed to Plaintiff in which it was indicated to
Plaintiff that the firm had received Plaintiff's medical files
through the Attorney General's Office. It is therefore apparent that
some discovery has taken place.
B. Denied. As indicated above. Plaintiff signed a Contingent Fee
Agreement with the law firm of Farage & McBride to prosecute this
action on Plaintiff' s behalf. Exhibit "A". Also, by letter dated
November 1, 1995, the said firm agreed to represent Plaintiff
provided he sign the said Contingent Fee Agreement. Plaintiff has
attached the said letter hereto, marked Exhibit "0", and i::l
incorporated herein by reference.
9. Denied. Plaintiff was fraUdulently led to believe that he had
legal representation in this matter. Exhibits "A" through "0", and he
was complete ly unaware that this case was not proceeding in the
proper manner. Had Plaintiff known otherwise, he would have taken the
necessary steps to pursue this matter appropriately.
10. Denied. Plaintiff incorporates nis answer in paragraph 9 in
this paragraph insofar that he was fraudulently led to believe he had
legal representation in this matter and that he was unaware that this
2
O5S8 was not proceeding in a proper manner.
11. Admitted in part. Denied in part. It is Admitted that
Defendants may have suffered some prejudice. It is Denied that the
prejudice requires dismissal under Penn Piping Inc. v. Insurance C~
of North America, 529 Pa. 350. 603 A.2d 1006 (1992) because by
"operation of law". Le., fraud, Plaintiff was not the direct cause
of the delay. Penn Pipinq provides that whAre the delay has been
caused by bankruptcy. liquidation, or other operation of law. there
will be a per se determination that a compelling reason for Ithe delay
has occurred. and other compelling reasons may be determined on a
case-by-case basis. Penn PipinQ, 529 Pa. at
n.2. '603 A.2d at
1009 n. 2. Plaintiff alleges that the fraud he suffered by. his
~
attorneys meets the "other compelling reasons" contemplated by Penn
PipiM.
12. Denied. For the reasons stated in paragraphs 9 through 11.
Defendants are not entitled to a judgment of non pros.
WHEREFORE. Plaintiff respectfully prays that this Honorable
Court deny Defendants' Petition for Judgment of Non Pros for the
reasons stated herein.
Respectfully submitted.
Qdf-&~~-k/
Plaintiff
Darryl Burgess. . AF-7740
P.O. Box 200
Camp Hill. PA 17001-0200
Date: April 25. 1997
3
F. X II I BIT
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F"ARAOE AND McBRIDE
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'.01' Jill.O....
,.... 'eOI'1'.'O,"
March 26, 1997
Mr. Darryl Burie..
Rt. Af-7740
P.O. Box 200
camp Hill, PA 17001-0200
ReI Burgess v. Pa. Dept. of Corrections, et al.
Cumberland County Docket No. 94-5314
Dear Mr. Burgess I
Thi. will confirm my receipt of your letter of March 23, 1997.
rirst it ie perfectly reasonable to approach opposing coun.el
and request that he not take any action to dismiss your case until
we have had an opportunity to review your updated medical reC"ords.
It i. also standard discovery procedure to request copies of
medical record. from defense counsel which Attorney Goodemote was
willing to provide me on condition that I provide hill with your
signed authorization. Next, after reviewing the medical records
which you provided us, we do not believe that your condition meets
the l:Iermanent injurv and serious iml:lairment of bodilv function
that is required to overcome the state's immunity in this type of
action. Of course, had your current medical records established
such an injury, we were willing to reconsider our position.
,
On your case, I should remind you that I have spent a
substantial amount of time all without compensation. Therefore
qiven the tone of your recent letter I lIust recommend that you
retain other counsel and hereby release you from any and all
obligations contained in the contingency agreement which you siqned
with our firm. You therefore may consider this the R.1.... which
you requested. Finally I regret any misunderstanding and wish you
all the best in pursuing your case.
V~trulY
/fk,.~
THO
yours,
..
TJR/ljv
I
To
YOll .,. hotN\lf IlOtlflId to plMd to tile
ItIdoMcI
WIllI.,. 120) .,.. of ..mce heNof or .
iefaulll....m.1lt ma, Ila .ntaNd Upoll rou.
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TORTS LmGAnON UNIT
OFfla o. ATtORNIY GINIIlAL
11th Fl. ItI'IwberrW SqUire
Hemsburg.'A '7120
MAR 2 7 1997 fI-
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cquipmcntto movc thc barbcr's chair, failinlllo providc propcr mcdical care, failinllto provide
promptmcdical carc, and lorcinlll'laintifflo walk 10 the inl1nllary to receive his medication. Thc
Commonwealth [)clcndants liIed their Answcr and Ncw Maller on Febmary In. 1995, PlaintifT l1Ied
Plaintill's Rcsponse on or about March 2, 1995, Since Ihattime, PlaintilThas failed to conduct any
discovery, dcpose any witncsses or takc any action whatsoever to adVWlce this litigation, despite the
fact that he had bccn providcd with copies of his medical records.
II. Question Presen ted
WHETHER THIS COURT SHOULD GRANT A JUDGEMENT OF NON PROS
WHEN PL.AINTIFFS HAVE FAILED TO PROSECUTE THE CAUSE OF
ACTION FOR MORE THAN TWO YEARS,?
(Suggested answer: Yes),
III. Argument
Plaintiffs have not liIed a document in this mailer since replying to the Commonwealth
Defendants' New Maller on May 2, 1995. Furthermore, it has been four and one half years since
the incident giving rise to this cause of action, There is no compelling reason for the Plaintifrs
extraordinary delay in prosecuting this case, By operation of law, the Commonwealth Defendants
are presumptively prejudiecd by the unexplaincd passage of more than two years, Accordingly, a
judgment of 1/01/ pros is appropriate.
The equitable tool of a judgement of 1/01/ pros has evolved as a mechanism to ensure that
plaintiffs do not take advantage of defendallls through dilatory tactics. In order to ensure the
4
prosecution ofa civil aClion with reasonable promplilude, a defendant is afforded the right to seek
ajudgement of non pros lilr delay in the plaintill's pursuit of trial. See Commo",,,ealt/, v, Swift. 241
Pa, Super. 359, 3(11 A,2d 688 (1976); f1w Valley Balik v, Steill",allll, 253 Pa, Super, 8, 384 A.2d
949 (1978). The delennination ofwhelher to enler ajudgeJl1ent of"OI' pros for wWll of prosecution
lies within the sole discretion of lhe trial court. Moreover, a judgemenl of /10" pros will not be
dislurbed unless the trial court commits a manilest abuse discretion. Carter v. Amick, 246 Pa. Super,
530, 371 A,2d 961 (1977),
II is well-established inlhis Commonwealth that a judgemenl of /10/1 pros for delay in the
prosecution of a civil eause of action is appropriale if three condilions exist: (I) the plaintiff has
shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no
compelling reason for the delay; and, (3) the delay has eaused prejudice to the defendant, which will
be presumed in cases involving a delay for a period of two years or longer. Pellll Pipillg, [IIC, v.
IIIsurallce Co. of Nort" America, 529 Pa, 350, 603 A2d 1006 (1992); see also Pille Tow"s/Jip
Water Co" IIIc. v, Feimol" Oil Corp" 425 Pa, Super, 473, 625 A,2d 703 (1993); Nes"amillY
COlrstructors, [IIC. v, Plymo"," TOWIlSllip, 132 Pa, Cmwlth, 229, 572 A.2d 814 (1990).
Historically, the crucial issue is whelher the plaintiff, under all the circumstances of the
particular case, failed to exercise due diligence in moving the case towards trial. See e,g, Rizzo v.
Pinsburg" R. Co., 226 Pa, Super, 566,323 A2d 174 (1974). A lack of due diligence has been found
to exist where there is a long-term lack of progress in lhe case and a failure to eonduct discovery,
Moore v. George Ileebller, 321 Pa. Super. 226,467 A2d 1336 (1983). These circumstances are
present in this case,
5
Hcrc, thc incidcnt giving rise to PlaintlIT's thc cause of action occurrcd on September 28,
1992.. Despitc Ihe passagc of lour and one half ycars sincc the accident, PlaintitT has tal<enno
afl1nllative action to documcnt pursuc his claim, other than to file a Complaint and to request his
medical records. The Complaint was liIcd in the Court of Common Pleas of Cumbcrland County
on October 15, 1994. An Amcnded Complaint was liIed on JWlUary 25, 1995. The Commonwcalth
Defendwlls answered the Amended Complaint on February 10, 1995, specifically dcnying liability
and raising, iII/a "Ii", the amnnativc defcnse ofsovercign immunity in its Ncw Mallcr. On March
2, 1995, Plaintiffs liIed a Response to the Commonwealth Defcndants' New Maller. Plaintiff, by
ICller, requested copies of his medical records from SCI . Camp Hill which werc provided on March
20, 1995. Since that time, Plaintiff has not engaged in any discovcry, either f0l111al or infol111al. He
has not attempted to contact counsel for the Commonwealth Defcndants, nor has he liIed anything
with the Court or the Prothonotary.
NOli pros can bc avoided only if there is a compelling reason for the delay. The Pennsylvania
Supreme Court has sct forth examples of situations in which there is a per se detcnnination that a
compelling reason exists for the dclay, thus reducing the period of inactivity. See Pellll Pipills,
sllpra. In Pel'" Pipillg, the Court stated that a compelling reason for the delay exists in:
. . . cases where the delaying party establishes that the delay was caused by
bankruptcy, liquidation, or other operation of law, or in cases awaiting
significant developments in the law.
Pmll Pipillg, SlIpra, 529 Pa. at 356 n.2, 603 A.2d at 1009 n.2. Here, there is no per se compelling
reason justifying the four and one half year delay since the cause of action accrued. There is no claim
of bankruptcy or other liquidation. Nor is there any other reason by operation of law, either case-law
or statutory, that would have precluded Plaintiff from pursuing his suit against the Commonwealth
6
CERTIFICATE OF SERVICE
I hereby certify thlltl wllthis dllY sClVing thc foregoing docul11ent upon the person(s) Wld in
the I11llnner indicllted below:
SERVICE BY FIRST CLASS MAIL
POSTAGE PREPAID
ADDRESSED AS FOLLOWS:
Dllrryl Burgcss
Rt. IIAF7740
S.C.l. ClIl11p Hill
P.O. Box 200
ClIl11p Hill. PA 17001
RESPECTFULLY SUBMITTED:
D. MICHAEL FISHER
ATTORNEY GENERAL
BY: I
ANIEL . GOODEMOTE
SENIOR DEPUTY ATTORNEY GENERAL
ATTY. 1.0. #30986
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ATTORNEY GENERAL
TORTS LITIGATION SECTION
15th FL. - STRAWBERRY SQUARE
HARRISBURG, PA 17120
(717) 783 - 1683
DATED: March:\(".1997
DARRYL BURGESS, I
Plaintiff I
I
v. I
I
PENNSYLVANIA DEPARTMENT OF I
CORRECTIONS, JOSEPH LEHMAN, I
JEFFREY A. BEARD, KENNETH A. I
KYLER, CARL HAMBERGER and I
KATHY MONTAG, I
Defendants I
IN TilE COURT OF COMMON PLBAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-5314 CIVIL TBRM
ORDER OF COURT
AND NOW, this t sf day of April, 1997, upon consideration of
Defendants' Petition for Judgement of Non Pros of Commonwealth
Defendants, it is hereby ordered that
(1) a rule is issued upon Plaintiff to show cause why
Defendants are not entitled to the relief requested I
(2) Plaintiff shall file an answer to the petition
within 28 days of this date;
(3) the petition shall be decided under Pa. R.C.P.
206.7;
(4) depositions shall be completed within 42 days of this
date;
(5) the matter shall be disposed of on briefs submitted
to the court administrator within 49 days of the issuance of this
order;
(6) notice of the entry of this order shall be provided
to Plaintiff through the prothonotary's utilization of a mailing
envelope furnished by Defendants.
BY THE COURT,
/}
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'Wesley 01
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OHlc;a O. ATTORNIY GINIIlAL
'1*11 PI. StreWMny iquere
H.rrt.bu.... p" 17120
MAR 3 1 1997tf
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stairway. PlainlifT claims the chair pullcd him forward whcrc he stepped in the oil on the stairway.
Plaintiff allcgcs he slippcd on the oil and thc barbcr's chair landcd on top of him, thercby causing
him injury.
3. The PlaintiO'hus brought his action against the COlllmonweallh Defendllllts, alleging
they were negligent in failing to propcrly instruct the PlaintilThow to move heavy items, falling to
provide proper equipmcntto movc thc barbcr's chair, failing to provide proper mcdical care, failing
to provide prompt mcdical carc, and forcing Plaintiff to walk to the infinnary to receive his
medication.
4. On February 13, 1995. the Commonweallh Defendants Penn DOT filed an Answer
and New Matter to Plaintiffs Amended complaint specifically denying liability and raised, illler
alia, the affinnative defense of sovereign immunity.
5. On March 2,1995, Plainti IT filed a Response to the Commonweallh Defendants' New
Matter.
6. Plaintin' has not filcd anything in this case since replying to Defendant Penn DOT's
New Matter on March 2, 1995. A certified copy ofthc docket in this mattcr is attached hcreto as
Exhibit A and made a part hereof by refcrcnce.
7. Plaintiff has not pu;'sued any discovery in this matter.
g. Plaintiff has shown a lack of due diligence in prosecuting this action by failing to
proceed with reasonable promptitude. For the past tow years, there has been no activity on the
docket.
9. Nothing has occurred by operation of law to prevent Plaintiff from timely pursuing
this action.
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At all relevant times, the barber's chair was the property of
the Commonwealth of Pennsylvania, Departmont of corrections, and was
in the care, custody iJnd control of the Commonwealth defendants, and
the defects in the chair was in dnd of itself the cause of
Plaintiff's injuries,
Plaintiff's complaint was filed on October 15, 1994 and an
Amended Complaint was later filed on ,January 25, 1995, Defendants
filed an Answer and New Matter on February 10, 1995 and Plaintiff
filed a Response on March 2, 1995. Thereafter, Plaintiff contacted
the law firm of Farage and McBride, who agreed to represent Plaintiff
'in this matter provided he sign a contingent Fee Agreement and a
Release for the said law firm to obtain copies of Plaintiff's medical
records from Defendants, Plaint! ff signed both the Contingent Fee
Agreement and the Medical Release and returned them to his attorneys
on November 6, 1995. See, Exhibits "A" and "B", attached to
Plaintiff's Answer to Defendants' Petition for Judgment of Non Pros
(Plaintiff's Answer hereinafter).
It was not until recently that Plaintiff learned that his
attorneys had decided not to pursue this matter, when he received a
letter from his attorneys dated March 26, 1997. attached to
Plaintiff's Answer, marked Exhibit "C". This letter also reflects.
however, that while the attorneys were representing Plaintiff. they
had obtained copies of Plaintiff's medical records from Defense
Counsel. It is therefore apparent that some discovery has taken
place, contrary to Defendants' assertion that no discovery has taken
2
place.
I. QuoBtion PrcBeIL~tl
WHBTHER '1'IIlS COURT SHOULD DBNY THB PBTITION FOR
JUDGMBNT OF NON PROS?
(Suggested Answer in the Affirmative)
.. ArQument;.
TIll.!LQourt ShQ.\.IJ.!l Del1y'yh!3 Pe!; i tien For Judgment Of Non ProB.
The Supreme Court has set forth the elements which must be shown
before a court may dismiss an action far lack .of decket activity.
These elements are: 1) the party has shewn a want of due diligence by
failing to proceed with reasanable pramptitude: 2) there is na
compelling reasan fer the delay; and 3) the delay has caused some
prejudice te the adverse party, which will be presumed in all cases
in which the delay is two years .or longer. Penn Pipinq, Inc. v.
,
Insurance Company of Nerth America, 529 Pa. 350,
, 603 A.2d 1006,
1009 (1992).
The thresheld issue that must be determined in this case is
whether .or not Plaintiff has shewn due diligence in pursuing this
case. Plaintiff submits that he has pursued this case with due
diligence. Upen initiating this action, he sought te empley counsel
te represent him in this matter. On November 6, 1995, Plaintiff
entered inte a Centingent Fee Agreement with the law firm .of Farage
and McBride, whe had agreed t.o represent Plaintiff in this matter.
It was not until Plaintiff received a letter frem his attorney
dated March 18. 1997. that he learned that his Counsel had not even
3
entered his appearance in this case, This letter is attached hereto,
marked Exhibit "E".
In addition, Plaintiff has communicated with his Counsel on
numerous occasions, and ho has attached hereto, several examples of
such communications between Plaintiff and his Counsel. which are
marked Exhibi ts "F" through "J", includ ing a letter in which
Plaintiff addressed the issue of a possible settlement offer, ~~
Exhibit "J".
The entire time from November 6, 1995 to date, Plaintiff was
led to believe that his attorneys were pursuing this matter in his
behalf. and Plaintiff should not be punished for his attorney's
failure to act.
This concern was addressed by the Court in Penn Pipinq, supra,
where the Court observed:
It should be remembered that the rules concerning
the dismissal of cases in which the docket has
been inactive for an extended period of time
reflect policy concerns which implicate the
interests of both plaintiffs and defendants. On
the one hand, if the suit is dismissed because of
delay which can be laid at the door of negligent
counsel, a plaintiff whose suit is dismissed may
be without meaningful remedy, particularly where
counsel is uninsured and without sufficient
assets. .
Id. 529 Pa. at ,603 A.2d at 1008.
The delay in this case was caused by Counsel, and not Plaintiff,
and Plaintiff should not have to suffer the consequences of his
negligent Counsel. Penn Pipinq, supra.
On another front, the defendants claim that no discovery has
4
lM~ O"I<<:EI
FARAGE AND McBRIDE
DONAL.D J '''A''OE
JAhltl' McSAlor
f~OMAI J flIJOOItl''''
''''Oh",nED fO NEW JEfut'f q,."
. ,. &l",lBURBAN IP...lION UUILOING
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PH.l...Or.lP..I.... ~r."''''l!IYLV'''''''''' .'It,),J.,"O.
.",.,IIUtJ,J,'J
'A. "1"1'.,)'.)00"
NEW JE.nEY on'lct
10"0 I'll', KIHGiHII)~W"""
IlJlft '00
C~EA"Y ~Il.". NJ Q.O)lt
I.O.IUI'O"'"
,......; leOl1 ."._0,)11
Maroh 17, 1997
Mr. Daniel Goodemote, Esquire
Deputy Attorney General
Office of Attorney General
Torts Litigation unit
15th Floor, strawberry Square
Harrisburq, PA 17120
ReI Burgess v. Pa. Dept. of corrections, et al.
Date of InjurYI 9/28/92
Cumberland Count v Docket No. 94-5314
Dear Mr. Goodemote:
I am in receipt of your letter dated March 14, 1997. Enolosed
please find an executed medical authorization from plaintiff Darryl
Burgess. Upon your receipt, please forward a copy of the medical
records from 1995 to the present relating to Mr. Burgess' treatment
for his injury of September 28, 1992. Of course, we will be qlad
to reimburse your costs for this request.
In the meantime, if you are unable to process this request,
please notify me at your earliest convenience. I look forward to
your reply.
Very
TJR/zjw
CCI Darryl Burges. (w/encl.)
EXHIBIT :.!L
Darryl llur;;eSl
AF-7740
P.O. Box 200
~amp Hill, PA 17001-0200
Thomls J. RUggI~rl, Esq.
835 Suburbsn Ststlon Rulldln~
1617 J lhn F. Kennt~y B1v~.
Phllldt1phh, PI 19103
REI Dara"'~~QeD.. R( Corr.c'tODlA-~~
Ca.b.rlln~ COUDtr Doc~.t Ho. 94-5314
Dear Mr Ruggierll
I Ill' in receipt of your corrupondtncts of March 17 InlS
18, 1997. I find them both ambiguous sn1 trouhllng. My tlrst
question concerne the me:Ucll recor~s you
requeste~. Mr. Goo~8mote sdvieed you thet it lIa. nllceseuy to
eubmlt Iln auth criution from me before he 1I0ul:l re11taee the
recolld'l. You apparently provil\e:l him IHth my signe:l r Ileu.
form, so his office should provide you lIith the Update:!
record'l. Thus I don 't' Inderllt Ind IIhy you art reclue,ting llll to
obtain thes. racor1l!l. tn Iny !tv!!nt, 1 ::10 not hlva th81ll Ind
csnnot provide them to you.
Mi' !lecond tluution conctlrns why you raquoliltal\ In extension
of time from the ~ttorney GenllrU nth,r thm tho Court. As It
llymln, I mlY not comprehend civil tort ..roctdur,~, but I don't
bid-leva t.hu Attorney '1onerlll cln ilrlut an f/xtension or
F.XHI~IT ~B"
Darryl Dur'Jess
^F-7740
P.O.13ox 2()()
~Bmp "ill, PA 17001-0200
FaraJB and McBride
ATTNI Th ~33 J. RUJ~ilri
~36 Suburban Station BLDG.
1617 John F. Kennedy BLVD.
Philadelphia, PA 19103-2508
ReI Burgess V. Dept. of corrections, et a1.
Cumberland County Docket No. 94-5314
Dear Mr. Ruggieril
Thank you for your prom,1t response to my December requast
for a complete update on the above-referenced cl3im. In it, you
addressed several questions which I raised in an .a.ugust 1996
letter. You also emphasize that you are still in the
investigative stage of this claim and that you have not r1ecided
whether to oHicially Enter an ^ppearance in this
case. Finally, you request a copy of my medical file and any
notification letter presented to the Dept. of Corrections.
The content of your response and its tone have exacerbated
the already serious concerns which I have about your
reprosentation. It has boen well over a year since the
contingency fee agreement was signed and yet you have not
obtained my medical records or determined that the State's
immunity can be overcome!
EXHIBI1 "I"
2
I am enclosing a comil1eta copy of the medical records
concerning the treatment I received as a result of my injury on
September 28, 1992. These records could have been provided to
you a year ago, had you requested them. Regarding notification
of the Oept. of Corrections, I was not aware of the requi rement
under 42 Pa.C.S.A. D5522 and thus did not provide notice within
a six month period.
However, you shOUld be aware that D5522(a)(2) provides the
following exception to the notice requirement I
...'1bB court 1IhI.11 --. ..* fallure to CXIIply vitb tide
requ1.. ... llplIl a 8bDviDg of r-........h1. ..~-..... fIX'
failure to file IIUCh Bta~t.
The
Pennsylvania
Commonwealth Court has
consistently
interpreted this clause to requi re a showing of prejudice to
the defendant before dismissing an action on this procedural
ground. In Roy V. Southeastern Penna. Transp. Authority, 129
Pa.Cmwlth. 353, 565 A2d 848, affmd 526 Pa. 265, 505 A2d 464,
that Court heldr
IgDOrlIDCB of till law IUllI of 8egerlty of injll1'f in the
aN-_'" Of prej1ll!.1ce to the _. -to anit, CllII8tituted
pa--~'. --.-........ for fai1are to proride DOtice Of injlll'J'
to ~ anit.
Upon receipt of this correspondence, please review the
enclosed medical records, research the State's immunity defense
and advise me of your conclusions
forthwith. Also,
previously requested, provide me with a detailed accounting of
the actions you have taken on my behalf, since entering into
the contingency fee agreement with me last year. It is
imperative that I know whether your oHice is actively pursuing
this claim as r03quired by the contingency agreement! If, in
as
PROOF OF SERVICE
I. DARRYL BURGESS. hereby certify that on this date I caused to
be served a true and correct copy of the foregoing Plaintiff's Brief
in Opposition to Peti tion for Judgment of Non Pros of Commonwealth
Defendants by depositing the same in the United States Mail, first
class, postage prepaid, addressed as follows:
Daniel R. Goodemote, Esq,
Senior Deputy Attorney General
Office of Attorney General
Torts Litigation Sect.ion
l5th Floor, Strawberry Square
Harrisburg, PA 17120
,
LJu ~
DARRY~R SS ~
Date: May 14, 1997
At all relevant times, the barber's chair was the property of
the commonwealth of Pennsylvania, Department of corrections, and was
in the care, custody and control of the Commonwealth defendants, and
the defects in the chair was in and of i tsel! the cause of
Plaintiff's injuries.
Plaintiff's Complaint was filed on october 15, 1994 and an
Amended Complaint was later filed on January 25, 1995. Defendants
filed an Answer and New Matter on February 10, 1995 and Plaintiff
filed a Response on March 2, 1995. Thereafter, plaintiff contacted
the law firm of Farage and McBride, who agreed to represent Plaintiff
in this matter provided he sign a Contingent Fee Agreement and a
Release for the said law f J.rm to obtain copies of Plainti ff' s medical
records from Defendants. Plaintiff signed both the Contingent Fee
Agreement and the Medical Release and returned them to his attorneys
on November 6, 1995. See, Exhibits "A" and "6", attached to
Plaintiff's Answer to Defendants' Petition for Judgment of Non Pros
(Plaintiff's Answer hereinafter).
It was not until recently that Plaintiff learned that his
attorneys had decided not to pursue this matter, when he received a
letter from his attorneys dated March 26, 1997, attached to
Plaintiff's Answer, marked Exhibit "C". This letter also reflects,
however, that while the attorneys were representing Plaintiff, they
had obtained copies of Plaintiff's medical records from Defense
Counsel. It is therefore apparent that some discovery has taken
place, contrary to Defendants' assertion that no dt.scovery has taken
2
place.
I. Question Presented
WHETHER TillS COURT SIIOUl.D DENY TilE PETITION FOR
JUDGMBNT OF NON PROS?
(Suggested Answer in the Affirmative)
.. Araument
This Court Should Deny The Petition For Judgment Of Non Pros.
The Supreme Court has set forth the elements which must be shown
before a court may dismiss an action for lack of docket activity.
These elements are: 1) the party has shown a want of due diligence by
failing to proceed with reasonable promptitude; 2) there is no
compelling reason for the delay; and 3) the delay has caused some
prejUdice to the adverse party, which will be presumed in all cases
in which the delay is two years or longer. Penn Piping, Inc. v,
Insurance Company of North America, 529 Pa. 350, ___, 603 A.2d 1006,
1009 (1992).
The threshold issue that must be determined in this case is
whether or not Plaintiff has shown due diligence in pursuing this
case. Plaintiff submits that he has pursued this case with due
diligence, Upon initiating this action, he sought to employ counsel
to repres~nt him in this matter. On November 6, 1995, Plaintiff
entered into a Contingent Fee Agreement with the law firm of Farage
and McBride, who had agreed to represent Plaintiff in this matter.
It was not until Plaintiff received a letter from his attorney
dated March 1B, 1997, that he learned that his Counsel had not even
3
entered his appearance in this case. This letter is attached hereto,
marked Exhibit "E",
In addition, Plaintiff has communicated with his Counsel on
numerous occasions, and he has attached hereto, several examples of
such communications between Plainti tt and his Counsel. which are
marked Exhibits "P" through "J", including a letter in which
PIa inti ff addressed the issue of a possible settlement otter. See
Exhibit "J".
The entire time from November 6, 1995 to date, Plaintiff was
led to believe that his attorneys were pursuing this matter in his
behalf, and Plaintiff should not be punished for his attorney's
fallure to act.
This concern was addressed by the Court in penn Pipinq, supra,
where the Court observed:
It should be remembered that the rules concerning
the dismissal of cases in which the docket has
been inactive for an extended period of time
reflect policy concerns which implicate the
interests of both plaintiffs and defendants. On
the one hand, if the suit is dismissed because of
delay which can be laid at the door of negligent
counsel, a plaintiff whose suit is dismissed may
be without meaningful remedy, particularly where
counsel is uninsured and without sufficient
assets. .
Id. 529 Pa. at ___' 603 A.2d at 1008.
The delay in this case was caused by Counsel, and not Plaintiff,
and Plaintiff should not have to Buffer the consequences of his
negligent Counsel. Penn Pipinq, supra.
On another front, the defendants claim that no discovery has
4
.'
Darryl Burwou
AF-7740
P.". Box 200
~amp Hill, PA 17001-0200
Thomss J. Ruggt,ri, ~Iq.
836 Suburbsn Station Building
1617 J mn F. Kennedy Blvd.
Philadelphil, PI 1~103
R E' .!1U'Jl!-'.f-L-.lh.. QeD' . 9<<: ~ou.ClUon.. n-1L.
CQ.b.rl.n~ County Doc~.' Ho. 94-5314
Dlar Mr Ruggilri,
I 1m in receipt or your corrltspondlncu or March 17 snd
18, 1997. I tind them both ambiguous Ini troubling. My tiut
Clulltion concerns the me:l1cal rlcords you
reclue.tl:l. Mr. Goo:hmote advised you that it "''' neceesuy to
submit Iln auth crization rrom me berore he wou1:l rei'".. the
recolldl~. You apparlntly provil~:l him lilth my I1gne:l r l1e"e
rorm, so hie orrice should provi:le you with the up:llte:l
record'.. Thus I don't 'In:lerst In:l why you In rlcluest in" lI!J. to
obtain the." rl!cor-i!l. In uy avent, I :lo not hive thelll In:l
cannot provide thlm to you.
My !llcon:l (IUs!ltion concerns why you requostsl\ In 9xtension
or timl rrom the ~ttorney Generl1 rsther th.n the Court. ~!1 .
1.yman, I mlY not comprlhend civil tort. jirOCldUril, but I :lon't
bld-ieva thlt Attorney 'lonerat can ilr5nt an extlnsion or
[)m.IBIJ~ ~H"
., ,.,
2
Hme. Furt.her, I 10 not. '\n1arst.an:l why you hsve waite" l\ntU
the final hour t.o request. t.hese records.
It. appears t.hIUI your handling of t.hls act.ion hu left. III.
in an almost. unt.enab1e posit.ion. Unbeknownst t.o me, you H:! not
enter an appearance on my behalf. You faile:l t.o obt.ain t.hese
1ut lIIeHca1 recor1s an1 I sm now faced wi t.h the prospect of
llefen:ling a mot.ion t.o dismiss slone. Obviously, my position has
been severely preju1iced by your actions or lack t.hereof.
I need sn immedillte explanation of your represent1ltion to
date and a definite assurance thl\1; your
oHic [ Ifill be
appearing on my beh!1f. If you are not going to represent me, I
Ifill require a Ifritten re1' Bse from the contingency agreement.
signed almost t",o years a!p. Shou11 you choose th'~ latter
course of action, I ",ill consider initiating sn inc[uiry of your
conduct ",ith both the Philslloe1phia Bar .a.ssocilition an:! the
supreme Court Disciplinary Counsel. I Ifill uxious1y slfsit your
reply I I
Sincerely,
,
~~I/~C~CU'1' .-.
Darryl Burgess
Dlltedl~/'/7
Darryl Burgas",
AF-7740
P.O.llox 200
Camp Rill, FA 17001-0200
Fara~G and Mcllrtde
ATTl'l1 Th anas J. RU:lgi.:!ri
~36 Suburban Station BLDG.
1617 John F. Kennedy BLVry.
Philadelphia, FA 19103-2508
ReI Burgess V. Dept. of Corrections, et al.
Cumberland County Docket No. 94-5314
Dear Mr. Ruggieri.
Thank YOII for your prOnl,)t responsa to my December request
for a complete update on the above-referenced cl3im. In it, you
addressed several questions which I raised in an August 1996
letter. You also emphasize that you are still in the
investigative stiigS of this claim and that you have not decided
whether to officially Enter an Appearance in this
case. Finally, you request a copy of my medical file and any
notification letter presented to the Dept. of Corrections.
The content of your response and its tone have exacerbated
the already serious concerns which I have about your
representation. It has been well over a year since the
contingency fee agreement was 5ignl)d and yet you have not
obtained my medical records or determined that the State's
immunity can be overcome!
~XIIIBIT .. I"
.'
2
I am enclosing a comlil1etu copy of the medical records
concerning the treatment I received as a result of my injury on
Septomber 28, 1992. These records could holve bel'n provided to
you a year ago, had you requested thum. Regarding notitication
of the Dept. of Corrections, I was not aware of the requirement
under 42 Pa.C.S.A. 05522 and thus did not provide notice within
a six month periOd.
However, you shOUld be aware that 05522(a)(2) provides the
following exception to the notice requirementl
...'l1Ie oourt Mall -........ failure to CllIIIp1y with tide
~ upoa . 8bDlfiDg of ...-........h1. ......_ f<<
fallure to file IIIdl stateEDt.
The
Pennsylvania
Commonwea lth Court has
cons i sten t.ly
interpreted this clause to require a showing of prejUdice to
the detendant before dismissing an action on this procedural
ground. In Roy V. Southe.stern Penna. TraDsD. Authority, 129
Pa.Cmw1th. 353, 565 A2d 848, affmd 526 Pa. 265, 505 A2d 464,
that Court heldl
IgDDnDCe of th'l lair and of 8lI'nrl~y of injUEJ' in the
.1 -'" of prej1ll!loe to tile ~. .1. unlt, ClIIIIItituted
K -"1e --. ...... for failure to provide DOtioe of lojUEJ'
to If''WWO' 'I. ani t.
Upon receipt of this correspondence, please review the
enclosed medical records, research the State I s immuni ty defense
and
advise me of your concl us ions
forthwith. Also,
as
previously requested, provide me wi th a deta iled accounting of
the actions you have taken on my behalf, since entering into
the contingency fee agreement wi th me
last year. It is
imperative that I know whether your ot.fice is actively pursuing
this claim as reqUired by the contingency agreement' It, in
At all relevant times, the barber's chair was the property of
the commonweaith of Pennsylvania, Department of correctionR, and was
in the care, custody and controi of the commonwealth defondants, and
the defects in the chair was in and of itself the cause of
Plaintiff's injuries,
Plaintiff's Complaint was filed on October 15, 1994 and an
Amended Complaint was later filed on January 25, 1995, Defendants
filed an Answer and New Matter on February 10, 1995 and Plaintiff
filed a Response on March 2, 1995, Thereafter, Plaintiff contacted
the law firm of Farage and McBride, who agreed to represent Plaintiff
in this matter provided he sign a Contingent Fee Agreement and a
Release for the said law firm to obtain copies of Plaintiff's medical
records from Defendants. Plaintiff signed both the Contingent Fee
Agreement and the Medical Release and returned them to his attorneys
on November 6, 1995. See, Exhibits "A" and "B", attached to
Plaintiff's Answer to Defendants' Petition for Judgment of Non Pros
(Plaintiff's Answer hereinafter).
It was not until recently that Plaintiff learned that his
attorneys had deci.ded not to pursue this matter, when he received a
letter from his attorneys dated March 26, 1997, attached to
Plaintiff's Answer. marked Exhibit "C". This letter also reflects,
however. that while the attorneys were representing Plaintiff, they
had obtained copies of Plaintiff's medical records from Defense
Counsel. I t is therefore apparent that some discovery has taken
place. contrary to Defendants' assertion that no discovery has taken
2
place,
I. Q.uelJt.ion.P..re.E!~nt.eg
WIUo:TIIER TillS COURT SIIOlIl.D D'~NY 'l'II~; PETITION FOR
.JlJDGMENT OF NON PROS?
(Suggested Answer in the Affirmative)
.. ~ml4!1\en!;
T-'ll!.U;p~.[:.L-,"lhQ.~..Ld_'pcny ThQ..l'.Q.!;.l!:J9n. ,.'oL Jud!ll1lent__ Of lion ProB,
The Supreme Court has set forth the elements which must be shown
before a court may dismiss an action for lack of docket activity.
These elements are: 1) the party has shown a want of due diligence by
failing to proceed with reasonable promptitude; 2) there is no
compelling reason for the delay; and 3) the delay has caused some
prejUdice to the adverse party, which will be presumed in all cases
in which the delay is two years or longer. penn Pipinq. Inc. v.
Insurance Company of North America, 529 Pa. 350. ___' 603 A.2d 1006.
1009 (1992).
The threshold issue that must be determined in this case is
whether or not Plaintiff has shown due diligence in pursuing this
case. Plaintiff submits that he has pursued this case with due
diligence. Upon initiating this action. he sought to employ counsel
to represent him in this matter. On November 6. 1995. Plaintiff
entered into a Contingent ree Agreement with the law firm of Farage
and McBride. who had agreed to represent Plaintiff in this matter.
It was not until Plaintiff received a letter from his attorney
dated March 18, 1997, that he learned that his Counsel had not even
3
entered his appearance in this cuso, 'I'his lotter is attached hereto,
marked Exhibi t "F.",
In addition, PlaintLff hus communicated with his Counsel on
numerous occasions. and he has att.uched hereto, several examples of
such communications between Piainti ff and his counsel, which are
marked F.xhibits "P" through "J", including a letter in which
Plaintiff addressed the issue of a possible settlement offer, See
Exhibit "J".
The entire time from November 6, 1995 to date, Plaintiff was
led to beliove that his attorneys were pursuing this matter in his
behalf, and Plaintiff should not be punished for his attorney's
failure to act.
This concern was addressed by the Court in Penn Pipinq, supra,
where the Court observed:
It should be remembered that the rules concerning
the dismissal of cases in which the docket has
been inactive for an extended period of time
reflect policy concerns which implicate the
interests of b,)th plaintiffs and defendants. On
the one hand, if the suit is dismissed because of
delay which can be laId at the door of negligent
counsel, a plaintiff whoso suit is dismissed may
be without meaningful remedy, particularly where
counsel is uninsured and without sufficient
assets. .
Id. 529 Pa. at ___, 603 A.2d at 1008.
The delay in this case was caused by Counsel, and not Plaintiff,
and Plaintiff should not have to suffer the consequences of his
negligent Counsel. Penn Pipinq, supra,
On another front, the defendants claim that no discovery has
4
DARRYL BURGESS, 'AP-7740
SC I -cAMI' II II,L
P.O. BOX 200
CAMP IIILL, PA 17001-0200
LAW OFPICES OF FARAGE & McBRIDE
836 SUBURBAN STATION BUILDING
1617 JOliN F. KENNEDY BOULEVARD
PIIII.ADEI,PllIA, PA 19103
DP.cEMB~;R III, 1996
,
Dear Mr. McBride:
I om writing at this time to request a comprehensive update
on the status of my suit, including n detailed account of the
actions you have undertakfln oa my behalf and copies of the
information you hAve compiled as 0 result of your efforts, It has
been over a year since we entered into a cont ingency fee Agreement
and, os of this date, I have aot received any information from
your office concerning the progress of this case. This is
particularly troubling because I have written to Mr. Ruggieri on
several occasions and fAiled to receive any acknowledgement!
I om anxious to ascertain if a settlement is within reach.
I expect to be released in June of 1997 which will allow me to
receive the necessary phYSical therapy that the Department of
Corrections has refused to provide, Of course, if no sett lement
hns been reached before my release, 1'm sure you wi 11 want to have
your doctors examine the extent of my disilbil ity, This will bolster
the evidence we cnn present to the Court if the 3uit is finally
litigated.
EXHIBIT "F"
LAW O""I~[a
F'ARAGE ANO McBRIDE
DO~AI.D J ,A""'C'u
",,,,MEI' MclUtlOr
rMO""A' J RVOGIE"I.
....OhllrrED rQ NtW JtRIUV 1"-"
..)e15uOURQAN ~,..tION UUII.DINQ
Ie" JOHN" ",[1',11',1[0'" BOUI.[V,,-AO
PH'I.,*,otI.Pttl,*,. PtNNIS"'LyM~I'" IIJ'tU.'''O'
1,,"1 "J..)IP.)
NEW JI"6tv Q".CI
. 0"'0 N'. MINOa MIOHWA"
lUlU: 100
elo.u:,,"'" HILL, NJ O'OJ"
Ito.. .1'1.0....'
'AliI.. '.0.' ""..O,JlI
,...." 1'1'" .e.1.JOIU
March 17, 1997
Mr. Daniel Goodemote, Esquire
Deputy Attorney General
Office of Attorney General
Torts Litigation Unit
15th Floor, strawberry Square
Harrisburg, PA 17120
Re: Burgess v. Pa. Dept. of Cor~ections, et al.
Date of Injury: 9/28/92
Cumberland Countv Docket No. 94-5314
Dear Mr. Goodemote:
I am in receipt of your letter dated March 14, 1997. Enclosed
please find an executed medical authorization from plaintiff Darryl
Burgess. Upon your receipt, please forward a copy of the medical
records from 1995 to the present rolating to Mr. Burgess' treatment
for his injury of September 28, 1992. Of course, we will be glad
to reimburse your costs for this request.
In the meantime, if you are unable to process this request,
please notify me at your earliest convenience. I look forward to
your reply.
Very
/
TJR/zjw
CCI Darryl Burgess (w/encl.)
EXHIBI~ "a"
Darryl llurijulII
~F-7740
P.? Box 200
r.~mp Hill, p~ 17001-0200
Thomsl J. Rug~i~ri, Esq.
836 Suburbln Stltion Buildin1
1617 J ~n F. Kennedy B1v~.
Phi1a~e1phil, PI 19103
REI narae,~ Y. ~O'l:It. o( ~orr.Q1ig~~-!J~
Ca.berllnd County Doe~et Ho. 94-5314
Delr Mr Ruggieri,
I 111I in receipt ot your corrupond,nces ot March 17 snd
18, 1997. I tin~ thelll both SI1lbiguou!l ani trouhUng. My tint
cluest.ion concerns the lIIe:!ica1 records you
reclueete~. Mr. Goo~'mote I!lviee:! you that it. Itae nscee..ry to
lubmit. Iln luth crizltion trom me betore he Itoul:! rell~le the
recoll:ll~. You SPPluntly provil\e:l him llith my signe!l r 11....
torm, so his ottice shoul:l provide you Itith the up~ste:!
recordl~. Thus I don' t Iln:lerstsnd Ithy you are requesting !l!.l to
obtain these rocor11!l. In any !lvant, 1 :10 not hava thelll Ind
cannot. provi:le them to you.
My second quest. ion concerns Ithy you reclu(t$tell an extension
ot time trom the Attorney GenerH nther ttun the Court. As a
1 ayman, I IIIIY not comprehen:! ci vi! tor t ~roce1urol, but I 10n' t
blnieva thll Attornoy 'loneral csn ~rlllt an 9x~,ension or
~XHIBIT "H"
Darryl llur'Jlts"
"F-7740
P.O.Box 2()O
Camp Hill, PA 17001-0200
Fara]o and McBride
"TT~~. Th ona, J. RU:jghri
~3r, Suburban Station BLDG.
1617 John F. Kennedy BLVD.
Philadelphia, PA 19103-2508
Rei Burgess V. Dept. of Corrections, et al.
Cumberland County Docket No. 94-5314
Dear Mr. Ruggieri.
Thank you for your prom,}t responsa to my December requ3st
for a complete update on the above-referenced cl~im. In it, you
addressed several questions which I raised in an .'\ugust 1996
letter. You also emphasize that you are still in the
investigative stage of this claim and that you have not decided
whether to officially Enter an Appearance in this
case. Finally, you request a copy of my medical fUe and any
notification letter presented to the Dept. of Corrections.
The content of your response and its tone have exacerbated
the already serious concerns which I have about your
representation. It has been well over a year since the
contingency tee agreement was signed and yet you havEl not
obtained my medical records or determined that the State's
immunity can be overcome!
EXHIBIT :.1':
2
I am enclosing 0 comtllete copy of the medical record.
concerning the treatment I received liS a result of my injury on
September 28, 199". Thuse recordll could have been provided to
you a year ago, hod you requested them. Regard ing noti ficlltion
of the Dept. of corrections, I was not aware of the requirement
under 42 Pa.C.S.A. D5522 and thus did not provide notice within
II six month period.
Howover, you should be aware that D5522(.)(2) provides the
following exception to the notice requirement I
...'1be CDUrt Bhil11 -..- - failun to CXIIIplJ with tide
~ uplIl II shoIfiDg ~ ...---1>le -.._ fOIl'
failure to file IIlId1 Bta"-t.
The
Pennsylvania
Common we a 1 th Court has
consistently
interpreted this clause to require a showing of prejudice to
the defendant before dismissing an action on this procedural
ground. In Roy V. SoutheasterD Penna. TransD. Authority, 129
Pa.Cmwlth. 353, 565 A2d 848, a!!md 526 Pa. 265, 585 A2d 464,
that Court heldl
IgDOrIIDCIt ~ t;ba law IIDl! ~ ~tJ ~ injUl'f in the
at r - - of prejudice to the ~t unit, CDDBtitutecl
...-__1.1. _.n_ for failure to provide ootice ~ injury
to ~ unit.
Upon receipt of this correspondence, please review the
enclosed medical records, research the State's immunity defense
and advise me of your conclusions
forthwith. Also, as
previously requested, provide me with a detailed accounting of
the actions you have taken on my behalf, since entering into
the contingency fee agreement with me last year. It is
imperative that I know whether your office is actively pursuing
this claim as required by the contingency agreement' If, in
DARRYl. IIURGESS
AF-7740
SC I -CAMI' 1111.1,
CAMP IIILL, PA 17001-0200
TIIOMAS J. RUGGIERI, ESQ.
FARAGF. & McBRJIlE
836 SUBURBAN STATION BUILDING
1617 JOliN F. KENNEDY BOULEVARD
PIIII.ADI';LI'IIJA, I'A 19103-2508
A PR II. 19, 1996
RE: BURGESS v. Po. Dept, 01 Corrections, et 01.
fum!!...rlnnd County Docket No. 94-5314
Dear Mr. Ruggieri.
Prescntly it app...nrs thot my maximum sentence dote will end on June
6, 1997. Therefore. I would like to make on out of court settlement.
Personal iaJury cases ore time comsuming and expensive. In your opinion
what is the maximum amount of cosh settlement I con anticipate. I would
like to make 0 settlemeat of TIIREF. MILLION DOLLARS ($3,000,000). s this
realistic or should I readjust such figures?
In addition I would like to make 0 settlement where the attorney's
fees ore paid separnte from the money received os port of the proposed
settlement. This arrangement is more in accord with the type of future
financial planning I anticipate, Pleaee indicate to me your comments on
this matter of separate attorney fees.
Per my letter dated 12/13/95 to you I informed you of the request
for payment from the Berks Credit & Collection Agency for the Comm. Ima-
ging Associates for $855.00 for 0 physical exam. I om sending you 0
copy of 0 letter doted 12/28/95 received from the Po. Dept, of Correct-
ions concerning this matt.er. It is my understanding that this inform-
ation has been referred to the responsible authorities. Thereby, relie-
ving me of this payment.
Finally, I would 1 ike t.o be
en this litigation. T trust that
yer client's relationship that
to this suit.
what stage you have tak-
a continuation of a Iow-
a successful conclusion
informed as to
this letter is
will end in
Please respond at your earliest convience.
EXHIBIT "J"
PROOF OF BBRVJ.gB
I, DARRYL nURGF.BB, hereby certify that on this date I caused to
be served a true and correct copy of the foregoing Plaintiff' s Brief
in Opposition to Petitlon for ,Judgment of Non Pros of Commonwealth
Defendants by deposi t ing the Bllme in the United States Mail, first
class, postage prepaid, iiddressed as follows:
Daniel R' Goodemote, Esq.
Senior Deputy Attorney General
Office of Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
~~
DARRYL R BBS .
Date: May 14, 1997