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94-OS6
LAW OFFICES OF DONALD R. DORER
3907 lIartzdale Drive, Suite 706
Camp 1111I, Pennsylvania 17011
Telephone Number: (717) 731-0988
Attorneys for Defendant
VS.
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO. 94-6520 CIVIL TERM
DAVID C. TIMOTHY. Plaintiff
CONSOLIDATED RAIL
CORPORATION and STACEY
STOUGHT. Defendant
CML ACTION. LAW
JURY TRIAL DEMANDED
PRAECIPE TO CHANGE CAPTION
TO TIlE PROTIlONOTARY:
Kindly change the caption of this matter to reflect the correct spelling and new name
of the Defendant, Stacey Stought. The caption should hereinafter read as follows:
DAVID C. TIMOTIlY, Plaintiff
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNA.
vs.
CONSOLIDATED RAIL
CORPORATION and STACEY
STOUGHT Now Known As STACEY
MARIE COLE, Defendants
NO, 94-6520 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Respectfully submitted,
LAW ry}S OF D~NALD.. 7R.~ORER
By:\ ;/({. /! /:~
Donald R. Dorer, Esquire
Attorney for Defendant
Identification No. 39126
94-{)~6
.
LAW OFFICES OF DONALD R. DORER
3907 lIartzdale Drive, Suite 706
Camp 1111I, Pennsylvania 17011
Telephone Number: (717) 731-0988
Attorneys for Defendant
DAVID C. TIMOTHY, Plaintiff
IN TIlE COURT OF COMMON I'LEAS
CUMBERLAND COUNTY, PENNA.
VS.
NO. 94-6520 CIVIL TERM
CONSOLIDATED RAIL
CORPORATION and STACEY
STOUGHT, Defendant
CIVIL ACTION. LAW
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
DONALD R. DORER, ESQUIRE, hereby certifies that he is the allomey for
Defendant herein, and that he caused a true and correct copy of the attached Praecipe to
Change Caption to be served by regular first class mail upon:
Mark T. Coulter, Esquire
Robert Pierce and Associates
2500 Gulf Tower
Pillsburgh, PA 15219
Attorney for Plaintiff
Craig J. Staudenmaier, Esquire
Nauman, Smith, Shissler & Hall
200 North Third Street
Harrisburg, PA 117101
Attorney for Defendant Conrail
Date: January 31. 1995
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"Donald R. Dorer, Esquire
Allomey for Defendant Stought
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DAVID C. TIMOTHY I
Plaintiff I
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CONSOLIDATED RAIL CORPORATION I
AND STACEY STOUGHT, NOW KNOWN I
AS STACEY MARIE COLE I
Defendants I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-6520 CIVIL TERM
IN REI ARGUMENT CONTINUED
ORDER OF COURT
AND NOW, APRIL 27, 1995, the above case appearing on
the Argument List for APRIL 19, 1995, is continued by agreement
of counsel. Counsel may relist the case when ready.
By the Court,
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Mark Coulter, Esquire
For the Plaintiff
Craig Staudenmaier, Esquire
For Conrail
Donald R. Dorer, Esquire
For Stacey Cole
Court Administrator
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94-6520 CIVIL TERM
employer, Consolidated Rail Corporation. Plaintiff avers:
[His] injuries were caused, In whole or In part, by the negligence
of the defendant, Consolidated Rail Corporation, by and through Its
agents and employees, in failing to exercise ordinary and reasonable
care to provide [him] with a reasonably safe place to work; by
negligently ordering him to view a scene which they knew or should
have known would cause serious emotional InJuries, In falling to follow
proper rules and standards applicable to such collisions, In falling to
wam [him] about the horror of the scene that he was to view, in failing
to counsel [him] following the view so as to avoid such emotional
Injuries, and In failing to Instruct Its workers as to proper procedures for
handling such circumstances.
(Complaint at par. 10).
Both defendants have filed preliminary objections under Pa, Rule of Civil
Procedure 1 028 (a)(4) , seeking dismissal of plaintiffs complaint for failure to state a
claim upon which relief may be granted. A demurrer should be sustained only where
It appears that, upon the facts averred, the law will not allow plaintiff to recover,
Santiago v. Pennsylvania National Mutual Insurance Company, 418 Pa. Super, 178
(1992). A demurrer admits all well-pleaded material facts and any reasonable
Inferences deducible therefrom. Bendas v. Upper Saucon Township, 127 Pa.
Commw. 378 (1989).
Defendant Stought, citing Sinn v. Burd, 486 Pa. 146 (1979), and Its progeny,
maintains there Is no cause of action for negligent Infliction of emotional distress
because plaintiff and defendant are not closely related. Those line of cases Involve
the foreseeability test that has developed when a plaintiff is not Involved In an Impact.
See, Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36 (1993). Plaintiff
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94-6520 CIVIL TERM
herein maintains that the Impact of his locomotive with defendant's automobile takes
the case out of the relationship requirement set forth In Sinn v. Burd, supra. In
Stoddard v. Davidson, 355 Pa. Super. 262 (1986), the Superior Court of
Pennsylvania held that a plaintiff sustained a "physlcallmpacf' when he was Jostled as
a result of his motor vehicle running over a corpse left In the road, CIting Zelinsky v.
Chlmlcs, 196 Pa. Super, 312 (1961), which Involved the collision of two vehicles, the
court noted that It had "held that the Jostling and Jarring of an automobile's occupants
Is enough physical Impact to meet the physical Impact element of a negligent
Infliction cause of action," Stoddard, 355 Pa, Super at 266. While plaintiff herein has
pleaded that there was an Impact, he has also pleaded that his emotional Injuries
arose because of his employer's conduct fOllowing the collision when he was ordered
to go forward to observe the body of the individual who was In the automobile. As
defendant states In his brief, It was viewing that scene that resulted In the "emotional
injury that he has suffered permanently as a result of it , , ."
In Stoddard v. Davidson, supra, the plaintiff drove an automobile over a
corpse lying in the middle of the highway. Plaintiff was detained by the police at the
scene. In a complaint against the driver of the automobile who had struck the person
who died, and then left the scene, plaintiff claimed she suffered from the negligent
Infliction of emotional distress caused by the physical Impact of her car running over
the corpse. The Superior Court reversed a dismissal of that cause of action by the
trial court. However, that opinion Is not precedent because there was no majority
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94-6520 CIVIL TERM
decision by the three Judge panel of the Superior Court.' In dissent, Judge Johnson
noted that the statement of the question before the Superior Court was whether the
motorist who left the scene was liable for emotional distress caused to the driver who
ran over the corpse on the road "and thereby suffers emotional distress by virtue of
having to stand by the corpse." Stoddard, 355 Pa. Super. at 271. Relying on that
statement of facts, Judge Johnson stated:
Plaintiff's emotional Injuries resulted from his holding the cover
over the corpse and not from his 'Impact' with the corpse, or from any
Impact with defendant or defendant's automobile. . .. I would not find
the emotional distress to be directly traceable to the peril In which the
defendant's negligence placed plaintiff.
Id. at 275.
That reasoning applies to the facts pleaded by plaintiff In the present case that
his emotional distress resulted from him being ordered bv Conrail to observe the
body of the Individual who was In the automobile that was struck by his locomotive.
That Is not the peril In which the alleged Impact caused by the alleged negligence of
Stought placed plaintiff. Accordingly, plaintiff has not set forth a cognizable claim
against Stought for negligence Infliction of emotion dlstress.2
Furthermore, defendant Stought maintains that without physical manifestations
1. Judge L1pez concurred In the result. Judge Brosky wrote the opinion. Judge
Johnson dissented.
2. In Armstrong v. Paoli Memorial Hospital, supra, a case In which the
Superior Court made a review of the law In Pennsylvania regarding claims of
negligent Infliction of emotional distress, It noted that Judge Brosky's opinion In
Stoddard v. Davidson, supra, "Is an anomaly." Armstrong, 430 Pa, Super. at 50,
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94-6520 CIVIL TERM
of Injury, plaintiff cannot maintain an action for negligent Infliction of emotional
distress. In Armstrong v. Paoli Memorial Hospital, supra, the Superior Court
stated:
phvslcallnlurv must be averred to sustain a cause of action for
neallaent Infliction of emotional distress. See Covello v. Wels Markets,
Inc., 415 Pa.Super, 610, 610 A.2d 50 (1992), appeal denied, 533 Pa.
644,622 A.2d 1376 (1993), (policeman who was unable to extricate a
child from a trash compactor failed to allege physical harm to himself);
Abadie v. Riddle Memorial Hospital, 404 Pa. Super. 8, 589 A.2d 1143
(1991) (demurrer sustained for failure to state a cause of action when
plaintiff failed to allege physical harm from a raucous hospital staff
birthday celebration while she was being treated); Wall by lalli v.
Fisher, 388 Pa.Super, 305, 565 A.2d 498, allocatur denied, 526 Pa.
636, 584 A.2d 319 (1989) (mother who witnessed a dog bite her child
failed to aver physical injury to herself); Banyas v. Lower Bucks
Hospital, 293 Pa.Super. 122,437 A.2d 1236 (1981) (plaintiff who was
charged with murder after hospital records were altered to blame him for
a death and to conceal malpractice failed to aver physical harm and,
thus, stated no cause of action for negligent infliction of emotional
distress).
The reaulrement that physical harm must accompanv emotional
distress to state a cause of action is based on the Restatement (Second)
of Torts ~ 436A. supra. Temporarv fright. nervous shock. nausea. arlef.
raae. and humiliation If transltorv are not compensable harm: but. lona
continued nausea or headaches. repeated hysterical attacks or mental
aberration are compensable inlurles. This court applied the Restatement
standards to a case In which the plaintiff averred "headaches, shaking,
hyperventilation, nightmares, shortness of breath, lack of control over the
bowels, and tightening of the muscles In the neck, back and chest" and
found that she had stated a cause of action for negligent infliction for
emotional distress when her employer wrongfully coerced her to enter
an abusive substance abuse program. Crlvellaro v. Pennsylvania
Power and Light, 341 Pa.Super. 173, 491 A,2d 207 (1985). Relying on
Comment c to 11 436A, a panel of this court held that "symptoms of
severe depression, niahtmares, stress and anxietv, reaulrlna
psvcholoaical treatment. and . . . onaoina mental, phvslcal and
emotional harm" sufficiently stated physical manifestations of emotional
sufferlna to sustain a cause of action. Love v. Cramer, 414 Pa.Super,
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94-8520 CIVIL TERM
231,606 A.2d 1175 (1992), Cases which the Crlvellaro court collected
from other jurisdictions cite deoression. nlohtmares. nervousness.
Insomnia and hvsterla as ohvsical svmotoms warrantlna recoverY.
Crlvellaro, 341 Pa.Super. at 180, 491 A.2d at 210,
In this case, Armstrong's allegation of loss of continence when
she leamed the accident victim coupled with her claim of depression,
nightmares and Insomnia meet the requirement of allegation of physical
Injury. (Emphasis added).
Id. at 44-45.
In the case sub Iud Ice, plaintiff has pleaded that he "suffered severe
psychological and psychiatric Injuries without ohvslcal manifestations of Inlurv, all of
which are and maybe [sic] serious and permanent In nature," (Emphasis added).
(Complaint at par. 9). Thus, not only has plaintiff not pleaded any physical injury, I,e.,
physical harm accompanying his alleged psychological and psychiatric distress, he
has specifically averred that his psychological and psychiatric injuries are "without
physical manifestations of Injury," Accordingly, plaintiff's complaint against defendant
Stought m:.Jst also be dismissed because he has not suffered physical harm.
As to plaintiff's FELA claim against his employer, the decision of the United
States Supreme Court In Consolidated Rail Corp. v. Gottshall, _ U.S. _ 114 S,Ct.
2396, 129 L.Ed.2d 427 (1994), requires application of the common-law zone of
danger test to determine If Conrail had a legal duty that would enable plaintiff to
proceed with his claim of negligent Infliction of emotional distress. In Gottshall, the
Supreme Court stated:
Our FELA cases require that we look to the common law when
considering the right to recover asserted by respondents, and the
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94-6520 CIVIL TERM
common law restricts recovery for negligent Infliction of emotional
distress on several policy grounds: the potential for a flood of
trivial suits, the possibility of fraudulent claims that are dlfflclllt for
judges and juries to detect, and the specter of unlimited and
unpredictable liability.
Id. at 129 L.Ed.2d at 448-49.
The Supreme Court noted that these policy considerations "accord with the concerns
that have motivated our FELA jurisprudence." The Court stated:
The zone of danger test limits recovery for emotional Injury to those
plaintiffs who sustain a physical Impact as a result of a defendant's
neolloent conduct, or who are placed In Immediate risk of physical harm
bv that conduct. (Emphasis added).
Id. at 443.
The Court concluded that:
Railroad employees thus will be able to recover for Injuries-physical and
emotlonal-caused by the negligent conduct of their employers 1bm
threatens them Immlnentlu~ith phvslcal Impact. (Emphasis added).
Id. at 448.
The Court further stated that: "the zone of danger test Is consistent with FELA.'s
central focus on physical perils," and "the rule will further Congress' goal of alleviating
the physical dangers of railroading." Id. at 447.
In Bloom v. Consolidated Rail Corp., 41 F.3d 911 (3d Clr. 1994), the plaintiff
was employed by Conrail as a locomotive engineer. During his employment, two of
his trains were Involved In fatalities. The first accident occurred when plaintiffs engine
struck a car and killed the driver. The second occurred when plaintiffs engine struck
and killed a pedestrian who stepped on the tracks to commit suicide. In that second
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94-6520 CIVIL TERM
accident:
Even though Bloom felt faint, IIghtheaded and nauseous, a Conrail
patrolman required him to exit the train and verify the point of contact,
which was to Bloom, at that point, a gruesome exercise. Following the
second fatality, Bloom sought and received psychiatric treatment
covered under the health plan, and underwent extensive counseling for
post.traumatlc stress disorder and chronic phobia syndrome. He was
never able to resume railroad work.
Id. at 912.
Bloom brought an FELA action against Conrail for negligent Infliction of
emotional distress. A jury awarded him damages and Conrail appealed. The Issue
on appeal was whether the District Court erred In not granting judgment as a matter
of law because Bloom's claim was not actionable under the FELA In light of
Gottshall, and because there was no evidence that Conrail caused Bloom's Injury.
The Court of Appeals concluded that Bloom did not sustain a physical impact
because at all times he safely rode In the locomotive's cab. The court reversed the
district court, holding that: "[B]loom was neither placed In Immediate risk of physical
harm nor threatened Imminently with physical Impact." Id. at 917.
In the case sub Judice, plaintiffs negligent Infliction of emotional distress claim
against his employer Is premised upon Conrail ordering plaintiff to go forward after
the accident to observe the body of the Individual who was In the automobile. Under
the zone of danger test, plaintiff did not sustain a physical Impact as a result of anv
neolloent conduct bv Conrail; nor was he placed In Imminent risk of physical harm by
Conrail's conduct; nor did Conrail's conduct threaten plaintiff Imminently with physical
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94-6520 CIVIL TERM
Impact. Accordingly, plaintiffs complaint against his employer for negligent Infliction
of emotional distress must be dismissed.
ORDER OF COURT
AND NOW, this /1 day of June, 1995, IT IS ORDERED:
(1) The preliminary objection of defendant Stacey Stought, now known as
Stacey Marie Cole, to plaintiffs complaint, IS GRANTED. Plaintiffs complaint, IS
DISMISSED.
(2) The preliminary objection of defendant Consolidated Rail Corporation to
plaintiffs complaint, IS GRANTED. Plaintiffs complaint, IS DISMISSED.
\
Edgar B. Bayley,"'.
Mark T. Coulter, Esquire
For Plaintiff
Donald R. Dorer, Esquire
For Stacey Stought now known as Stacey Marie Cole
Craig J. Staudenmaler, Esquire
For Consolidated Rail Corporation
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94-056
LAW OFFICES OF DONALD R. DORER
3907 lIartzdale Drive, Suite 706
Camp Hili, Pennsylvania 17011
Telephone Number: (717) 731-0988
Attorneys for Defendant
DAVID C. TIMOTHY, Plaintiff
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
VS.
NO. 94-6520 CIVIL TERM
CONSOLIDATED RAIL
CORPORATION and STACEY
STOUGHT, Defendant
CIVIL ACTION . LAW
JURy TRIAL DEMANDED
PRAECIPE FOR RULE TO FILE COMPLAINT
TO TlIB PROTIlONOTARY:
Please enter a RULE upon plaintiff to file a Complaint within 20 days hereof or
roff".ho "'" of ,lwlgrn<" of Noo P"n. If)
CLR~
Date: January 13, 1995
Attorney for Defendant
RULE TO FILE COMPLAINT
AND NOW, this 1S:1.f::day of "-I
entered upon the Plaintiff to file a Complai therein
suffer the entry of a Judgment of Non P ,
, 1995 a RULE is hereby
thin 20 days after service hereof or
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CERTIFICATE OF SERVICE
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I hereby certify that I have this 15th day of December. 1994 served a copy of the
follows:
Mark T. Coulter, Esquire
ROBERT PIERCE AND ASSOCIATES
2500 Gulf Tower
Pittsburgh, PA 15219
Donald Dorer, Esquire
3907 Hartzdale Drive
Camp Hill, PA 17011
foregoing praecipe of appearance upon counsel of record by placing a copy of the same in the
United States mail at Harrisburg, Pennsylvania, First Class postage pre-paid, addressed as
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Craig J. SllJ! nmaier, Esquire
Supreme Cdurt IOU 34996
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY I PENNSYL V ANlA
DAVID C. TIMOTHY,
CIVIL DIVISION
Plaintiff,
No. GD94.7955
vs.
MOTION TO TRANSFER
VENUE TO CUMBERLAND
COUNTY, PENNSYLVANIA
CONSOLIDATED RAIL CORPORATION
and STACEY STOUGHT,
Defendants.
Flied on Behalf of Defendant,
STACEY STOUGIIT
Counsel of Record for
This Party:
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MAURY D. NUSBAUM, ESQUIRE
PA ID 1100228
/
JACOBS & O'CONNELL
Suite 200
One Williamsburg Place
Warrendale, PA 15086-7568
(412) 934-0388
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY , PENNSYLVANIA '\
DAVID C. TIMOTHY,
Plaintiff,
Ys.
CONSOLIDATED RAIL CORPORATION
and STACEY STOUGHT,
Defendants.
CIVll.. DIVISION
No, GD94-7955
PRAECIPE FOR APPEARANCE
Filed on pefiJf of Defendant,
STA~ )'fOUGHT
/// ,./
/Coupse"l of Record for
/ This Party:
MAURY D. NUSBAUM, ESQUIRE
PAID #00228
JACOBS & O'CONNELL
, ' Suite 200
L One.Ylilllamsburg Place
---'Warrendale, A 15086-7568
DEMANDED
JURy
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G\\\7-
t;ll9'4' 7955
WRl'rOPSUMMONS IN roIVI!. ACTION
To DEFENDAN'f(S): You urn noWie,l r.hHt. Ih" pl"i;~t.ir;ld
Ilt\Rll~nv(! commollf:cd un a.:liou JH':Hi~~1. ~ (in w~,kh jOlt :lrt'
r:!llll1rftl to Dcr.nd.
Dutc&j/ /,j!f.'f/ ::h"i1arl 10', ;:'111, ro',,,,,,,,,,,;.:.ry
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
Civil Division
\ G). <f;).
DAVID C. TIMOTHY,
Plaintiff,
v.
No.
GD94
7955
CONSOLIDATED RAIL CORPORATION
and STACY STOUGHT,
Defendants.
PR1<'ECIPE
SUMMONS
FOR
WRIT
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Code: 005
Filed on Behalf of:
David C. Timothy, Plaintiff
,
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Coul1sel of Record for
Thiyparty:
MARK T. COULTER, ESQUIRE
Pa. I.D. 69586
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ROBERT PEIRCE AND ASSOCIATES
Firm I.D. 839
2500 Gulf Tower
Pittsburgh, PA 15219
(412) 281-7229
ATTEST
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!Ua~~~,~iCOON . \'1ALLEGHE,. " COUNTY SHERIFF'S DEP....TMENT
C~ \\ 10' ROOM 111, COURTHOUSE
J PITTSBURGH. PA 15210
PLAINTlFF'DaV/d C.T\fY1oJA.c/ Phono: 355.4700
EFT (bn~~'f~ 'Rail
800,' DEFT, {!. ( hn'j'l
ADD, DEFT,
GARNISHEE
~ ADDRESS. za.
JOHN M, McNAMARA
Chle' Depuly
MUNICIPALITY WARD/CITY WARD
DA TE:-'.~
PHONE:
INDICATE TYPE OF SERVICE: 0 PERSONAL
CASE N!i])q~ lCj5~~ ~
. EXPIRES ~/..ULQ. 10 I (Jr <;J
])(SUMMONSIPRAECIPE t/!/l
/iJ'COMPLAINT ONLY 1'1..u.
U NOTICE AND COMPLAINT ,..
[J REVIVAUSCI FA /1.- - ,
/u. L"
o INTERROGATORIES ~
C1 EXECUTION. LEVY
[J GARNISHEE ~ . ~ v
U OTHER ");: ~ '
-4I,T'{g~/0 W-VW(2,~~1 ~ulVe
~lrN...-t~~.5
ERSON IN CHARGE [J DEPUTIZE [J CERT, MAIL U POSTED LJ OTIIER [] LEVY [] SEIZED & STORE
19~ I. SHERIFF OF ALLEGHENY COUNTY. PA do horoby doputlzo Iho Shori" 01
County to oxocuto this Writ and mako return 1horoo' according to law.
NOTB: ONLY APPLICABLE ON WRIT OF EXECUTION: N.D. WAIVER OF WATCHMAN. Any depuly sheri" levying upon or BlIachlng any propor'y undor wllhin writ may
I.IY' 11m. without. watchman, In cUllody of whomllVllt I, found in ponolllon, .ftor noUrylng person ollllVV or 81l8chmenl, with out 'ability on lho parI 01 such dcpuly
herein lor any lon, deltructlon or removel 01 ony luch proper1y beroro sho/ill's sDle lhoreor.
Now,
Seize, 10VY, edvortise ond soil 011 tho porsonsl property of tho defend""1 on tho promlsos located 01:__
MAKE
MODEL
MOTOR NUMBER
SERIAL NUMBER
LICENSE NUMBER
I h8V' UNed In tho manner Described below:
o Defandanl!l) peraonaJly UNed.
o AdulC lamlly mambar wllh whom I8ld Dolendanl(l) reside(u). Nome & Relationship
o Adullln charge 01 Delendanl'. resIdence who ,efused 10 Ulve nome or lolallonshlp.
Of4'nager/Clerk 01 place or lodging In which Dalendanl(s) reslde(s). -D-Arl~
V Agent 0' person In charge 01 Oefendanl(s) olice or ulual place of buslnon,-..JL.a V C-
D Olher
o Property Posled
Derendant nol round bec:Bu": 0 Movod
o Certified Mell 0 Receipl
o Regular Mall Why:
day 01
o'eIOCe.M. Address Above/Address Below. Countv of AlloGhenv. Pennsvlvanla
I
tD9.J. sl
IvVOOj)/Ll/rF - ~UJ/M A
[) Unknown 0 No Answer
o Envelope Returned
l1 Vacanl
llOther
rJ Nelther Receipt or envolopo rcturned; wnl expired
You are hereby noUlIed that on
Sale has been sot for
Add. cost due $
ATTEMPTS
:>0 Ar~::;~~r:'1S
6r
19___. lovy was made In tho C3S0 of.
, 19_, at _ o'clock.
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SHEtlI FF
!Jj-E L, COONCSh
By
District. 7
Deputy
WhllO Copy, Shorl"
Yellow. StlOrilf
Pink Copy. Altornoy
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~UGi~~r~iCOCON' \\rLA~LEGHOYlCOUNTY SHERIFF'S DEOrM~NT It" ~oH\~i.~~~:~:A
. \ . r ROOM 111 ' COURTHOUSE
.. PITTSBURGH, PA 15219
'-J... - J Phonal 355,4700
PLAINTIFF vault!. C. I irnoJ lL(
/DEFT,(YJ!l SD l,d /~('d.. .-~t(j )
L ADD, DEFT, .Jlt!J1{f SlnJ_)l-1
J r
'-. ADD, DEFT,
'" GARNISHEE'
.~ ADDRESS \('17((1
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MUNICIPALITY WARD/CITY WARD
DATE:
PHONE:
I;D
CASE" 6D qL/ l05 ~-5
EXPIRES... luJl.Q.',O I 94 u
)?SUMMONS/PRAECIPE lJ ,A
/D'cOMPLAINT ONLY (., .JJ '
o NOTICE AND COMPLAINT I: 'f
o R~VIVAUSCI FA I J,.o--v
/U,"
o INTERROGATORIES :;?:S~ 'J
o EXECUTION. LEVY i:,
o GARNISHEE ~ '
o OTHER ~
~.k>('n(ll(lDIJ()w(J VC::>/ NWI V c..
. bLb::Ll- n'1 Y f'c.. -j ,A c..ufl r~ If' C;
INDICATE TYPE OF SERVICE: 0 PERSONAL PERSON IN CHARGE 0 DEPUTIZE 0 CERT, MAIL 0 POSTED 0 OTHER [] LEVY 0 SEIZEO & STORE
Now. 19~ I. !tAERIFF OF ALLEGHENY COUNTY. PA do hereby deputize theSherl1l of
County to oxocuto this Writ and mako roturn thoroo' according to law.
UOTEI ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN.. Any deputy ahllrut levying upon or etlachlng any propelly under within wIn may
I....,. ..m. wllhout . watchman, In cUlLedy or whomll\lar II lound In pollelllon, ahef notilylng pelllon or lavy or Illachment, wllh out lability on the part 01 such dcpuly
hereln for any loll, destructlon or removel 01 any luch property boforo ahorlff'a 1B10 Iheleof,
Salza, lavy, advartlsa and sail all tho parsonal proparty of Iha dafandant on tho pramlsas local ad at:
MAKE
MODEL
MOTOR NUMBER
SERIAL NUMBER
LICENSE NUMBER
SHERIFF'S OFFICE USE ONLY
I tuw. urved In the mlnner Described below:
o Defendanle.) personally urved.
o Adult ramlly member wllh whom IBid De'endent(.) le.lda(s). Name & Relalionshlp
o Adult In charge 01 Defendant', r"ldance who relused 10 give nama Of relatlonshlp.
o Manager/Clerk or pleco 01 lodging In which Delandanl(') rOlldo(s).
P Agent or partOn In charge 9' O.r.ndenl(l} otice or u.ual place 01 bu.lnl!llll,
o Olh.r
o Property POlted
Oer.ndant not tound because: 0 Moved
o c."lned Mall 0 necelpt
o negular Mall Why:
day 01
O'C~P.M. Address Above/Address Bolow, County of Allegheny, Pennlylvanla
"
o Unknown 0 No Answer
o Envelope Returned
o Vacant
o Other
o Neither Rocelpt or envelope "Iumodi writ expired
You Bre hereby notified that on
Sala hBS baen set lor
Add. cost due $
ATTEMPTS
19_, levy was made In Ihe casa 01
, 19_, Bt _ o'clock.
By
Dlslrlcl
While Copy. Sheriff
Yellow, Sherlll
Pink Copy. Atlorney
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ALLEGHl (COUNTY SHERIFF'S DEF HMENT JOH~ M, McNAMARA
. . ChI.' Depuly
ROOM 111 . COURTHOUSE
PITTSBURGH, PA 15210
Phono: 355,4700
EUGENE L,COON
Shorl\,\ \ r '
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PLAINTIFF David {l. J;rno//it;
DEFT, ..J1tJ.(jL~ ~lt:i
ADD, OEFT, (VrI, Sn' ,Ii
ADD, DEFT,
GARNISHEE
ADORE'S @ Yri;mt?rt I
~J //It ..s. 1: PA .J
MUNI~a.rARD/CITY WARD
DATE: Ilff
I
PHONE:
CASE Lf>b qlLY1~
~x IRES ~ JLe.. J 0 .
SUMMONS/PRAECIPE .
I COMPLAINT ONLY
LJ NOTICE AND COMPLAINT
[J REVIVAUSCI FA
fJ INTERROGATORIES
(-II , , 11 EXECUTION, LEVY
7 fJ7J7 [I GARNISHEE
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1035 ------ AJ/;41!-t~j~#f5#J1J ,,Y(2;pI!1f1L
1201 /
ERSONAL I] PERSorJ IN CHARGE I] DEPUTIZE [J CERT, MAIL 1.1 POSTED [1 OTHER II LEVY 0 SEIZED & STORE
Now.
19
, I. SHERIFF OF ALLEGHENY COUNTY. PA do hereby deputize the Sheriff 01
Counly 10 e.eculo thle Writ end maka return thereo' according to law,
c..I.
:..t.
NOTEI ONLY APPLICABLE ON WRIT OF EXECUTION: N,D. WAIVER OF WATCHMAN. Any deputy Iherilllovylng upon or auachlng any proporly under within WIlt may
IllYe ume wl1houl . watchman, In custody 0' whomuv8f I, found In pollllllion, ahar notHving parton 0' levy or alllchmonl, wIth oul ~abllily on the plrt olluch doputy
herein fOf any 10.., destructIon or remO\lel 01 any loch prOpOr1y beforo shOll"" ute lhercol.
Soize. lovy, advorliso and soli alllho porsonal proporly of Iho dofond.lnl on Iho promiaos localod nt:_
MAKE
MODEL
MOTOR NUMBER
SER[AL NUMBER
LICENSE NUMBER
SHERIFF'S OFFICE USE ONLY
I hereby CERTIFY and RETURN thai on thu 0 1
8,55
10~,.,
dllY 01 June
o'cloc;k, A.M.DfXl,*(kQiC'OQ\laOlOUtclCkOCifd)f!JMC County 01 ,~Uo~f1ennlytvanill
345 Criswell Dr., Boiling Springs,
(Place of Employment)
PA
I havl Slrved In th, mlnn,r Described billow:
Xl Derendanlll) perlonaJly IIrved.
D Adult ramlly member with whom uid Defend.nl(s) r"sldees). Name & Relationship
D Adult In Charge or Cerendant', residence who rolused 10 givo namo or relationship.
D M.nager/Clerk 01 place ollodoing In whlch Oelendant(l) reslde(s).
o Agent or person in charge 01 Delendant(s) olice or usuel plllCe 01 businen.
a Other
o ProPlr1y POlled
Delendant nollound becaullt: n Moved
o Certlnod Man L1 Receipt
o Regular Mail Why:
[] Unknown II No Answer
II Envelope neturned
n Vacanl
CJ Olh8r
L1 Neither neceipt or Cl1vt':ope roturned; writ expired
You are hereby nolllled that on
Sale has been sel lor
~~~~~$19.42 Sheriff's Costs
ATTEMPTS
19__, lovy was mado In Ihe caso of
, 19_, al _ o'clock,
fiwo):-n
and subscribed to before me
EUGENE L. COON ~
;.or'IRIAL mL -;- '~~-,/9 ,/ ,.<)
:\I,DREY G, ,\D,\~S, flotory Pub! Y2i"mothy R 1 tz 1lepuly
'Arllsl(! Bara, Cumb~rldnd C,.)!.!I1~i
,~y CGemlsslon Expires ~JY IlDlslrlO(,_
this 3rd nay of June 1994
Lk _! '.) I
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otar'? l'UO.L1C
Whito Copy. Shorill
Pink Copy. AlIornoy
Yellow. Shorlff
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SUMMARY OF ACTION
8. While working for defendant railroad, engaged in the course
and performance of activities in furtherance of interstate commerce, on
or about May 26, 1992, plaintiff was operating a locomotive which
struck a car on the rail tracks, killing one occupant of the car.
9. Plaintiff was directed to observe the condition of the
occupant of the vehicle involvad in the collision with the locomotive
operated by the plaintiff, and as a result of this observation suffered
severe psychological and psychiatric injuries without physical
manifestations of injury, all of which are or maybe serious and
permanent in nature.
10. Plaintiff's injuries were caused, in whole or in part, by the
negligence of the defendant, consolidated Rail Corporation, by and
through its agents and employees, in failing to exercise ordinary and
reasonable care to provide the plaintiff with a reasonably safe place
to work; by negligently ordering him to view a scene which they knew or
should have known would cause serious emotional injuries, in failing to
follow proper rules and standards applicable to such collisions, in
failing to warn the plaintiff about the horror of the scene that he was
to view, in failing to counsel the plaintiff following the view so as
4
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.
defendant Stought as hereinabove set forth, the plaintiff has suffered
the damages described above.
16. Pursuant to the terms of the Pennsylvania Motor Vehicle
Financial Responsibility Law, the plaintiff brings this action, having
elected the full tort option on the appropriate policy of insurance, or
in the alternative, having sustained serious injury under the limited
tort option of the appropriate policy of insurance.
WHEREFORE, the plaintiff claims damages of the defendant, Stacey
Stought, in a sum in excess of Twenty-Five Thousand Dollars
($25,000.00), to recover which this suit is brought.
A JURY TRIAL IS DEMANDED.
Respectfully submitted,
ROBERT PEIRCE & ASSOCIATES
::k T ~;'QUIRE
2500 Gulf Tower
Pittsburgh, PA 15219-1912
(412) 281-7229
Counsel for Plaintiff
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94-056
LAW OFFICES OF DONALD R. DORER
3907 Hartzdale Drive, Suite 706
Camp HlII, Pennsylvania 17011
Telephone Number: (717) 731-0988
Attorneys for Defendant Cole
DAVID C. TIMOTHY, Plointiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
VS.
NO. 94-6520 CIVIL TERM
CONSOLIDATED RAIL
CORPORATION and STACEY
STOUGHT Now Known As
STACEY MARIE COLE,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
DONALD R. DORER, ESQUIRE, hereby certifies that he is the attorney for
Defendant herein, and that he caused a true and correct copy of the attached Preliminaty
Obiection of Defendant, Sta~y M. Stoul!ht Now Known As Stacey Marie Cole, to
Plaintiffs Complaint to be served by regular first class mail upon:
Mark T. Coulter, Esquire
Robert Pierce and Associates
2500 Gulf Tower
Pittsburgh, PA 15219
Attorney for Plaintiff
Craig J. Staudenmaier, Esquire
Nauman, Smith, Shissler & Hall
200 North Third Street
Harrisburg, PA 117101
Attorney for Defendant Conrail
Date:
March 24, 1995
to"
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or", ,L///--
"Donald R. Dorer, EsqUire
Attorney for Defendant Cole
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.
SUMMARY OF ACTION
8. While working for defendant railroad, engaged in the course
and performance of activities in furtherance of interstate commerce, on
or about May 26, 1992, plaintiff was operating a locomotive which
struck a car on the rail tracks, killing one occupant of the car.
9, Plaintiff was directed to observe the condition of the
occupant of the vehicle involved in the collision with the locomotive
operated by the plaintiff, and as a result of this observation suffered
severe psychological and psychiatric injuries without physical
manifestations of injury, all of which are or maybe serious and
permanent in nature.
10. Plaintiff's injuries were caused, in whole or in part, by the
negligence of the defendant, Consolidated Rail Corporation, by and
through its agents and employees, in failing to exercise ordinary and
reasonable care to provide the plaintiff with a reasonably safe place
to work; by negligently ord-:ring him to view a scene which they knew or
should have known would cause serious emotional injuries, in failing to
follow proper rules and standards applicable to such collisions, in
failing to warn the plaintiff about the horror of the scene that he was
to view, in failing to counsel the plaintiff following the view so as
4
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HAR 6 1/ 118 AH '95
Ill;; ,r;-I)f FICE
Of Tiff. PiIOTHOI/OrA~~
CUkor"L.\//O CfJU/i r~
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