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Home My WebLink About94-07010 27 1 A She just moved, she lives on Stacey Drive, but 2 I would have to get the new address out, 3 Q Is she living with her husband? 4 A Yes, she is, 5 Q What is her husband's name? 6 A Allen Pontius, 7 Q That's P-O-N-T-I-U-S? 8 A That's correct. 9 Q What did you do when you got back to the shop? 10 A When I got back to the shop, she took one look 11 at and she said, what's wrong with you, and I said I have a 12 real bad headache and I was in a wrack. And I said I am 13 14 15 16 17 18 19 20 A Yes. My shoulder and arm was funny, it was 21 like stiff like. 22 Q Which shoulder? 23 A My left. 24 Q Describe that feeling, you said it was stiff? 25 A Yes, it just felt real funny and it wasn't going home. And I came home. Q And she closed the shop? A She closed the shop. Q When did your headache develop? A On the way home I had a real bad headache. Q Any other part of your body start to hurt other than your head as you were driving home? OIIGI" . l.O'UA "1.-O'UlNG IlftYICI. acOI ..""" DR.. SUITIE .. HIG., piA 17110 717.UHsoe 0.. 1'100'222.<11577 . 28 1 right, like it normally is. And I went home. 2 Q This funny feeling in your left shoulder and 3 arm, how far down your arm did it extend, if you remember? 4 A Right in here is where it really bothered me 5 the most. ( Indicating. ) 6 Q You are indicating the top part of your 7 shoulder and your arm? 8 A In here, yes. 9 Q Extending from the top of your shoulder 10 A I would say from down in here to down here in 11 here, it just really felt funny. (Indicating.) 12 Q We are just going to try to clarify that for 13 the record, I saw where you indicated. Beginning in the top 14 part of the shoulder- -- 15 A I have this big padding in here, from down in 16 here to down to in here (Indicating.) 17 Q What you are describing is a shoulder pad 18 that's in your jacket of your coat? 19 A Yes, I have two of them on, one on my blouso 20 and one on my coat. Like I said, from in here it just felt 21 funny, it was like stiff, like I knew something had 22 happened, it wasn't right. 23 Q From the middle top of your shoulder -- 24 A Right. 25 Q -- extending over the top of your shoulder, 01:101" a LORIA REPORTINQ SERVICE. 24011 P'A"K DR., SUITE e. Hid., IIA 17110 717'5~H50' 0" 1'100'222'.577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 " 25 ~ ; i 29 was it as far as the elbow? A Not as far as the elbow, but down in here. Q About halfway between the top of your shoulder and your elbow? A Yes. I would say like up in here. I want to make sure, that's close to my neck, too. Q And I am trying to go A Also I might add, so that we have this straight here, when I hit, I hit back in here, too (Indicating. ) MR. HENNINGER: Back here? A I am indicating like on here, back in here down to here. It wasn't the elbow. It wasn't the hand, it was from up in here down to here. That's where I started hurting after. BY MR. BONETTI: Q Here's the difficulty here, I just saw what you did and I understand that. When we get the transcript, it's going to say from here to there and it's not going to mean anything. I was trying to describe it for you, but I don't think I was doing a very good job of it. If you could describe, instead of saying here or there, whatever you feel comfortable saying, try to describe it for the record so that we know. I I I' J, 'j MR. HENNINGER: Off the record. GIIGIR &: LORIA REPOATINQ SIRVICt. ,1408 "."1< DR., SUITE .. HIQ., Fl. 17110 711".1-1501 OR 1-100'221'4'77 30 and up across. Q Close to the neck? A Right. I just wanted to make sure that when I hit, it just wasn't here, it was in the back part, okay. Q The part that was stiff and sore was not only the very top of your shoulder -- A Right. Q -- but it extended back toward your back? A Right. In fact, the feeling was as if someone OIIOIA a LORIA R<<,.ORTING srltVlcr:. 2408 ~A"K DR" SUITE eo HIO" PI. 17110 717'54101501 OR 101100'222'4577 31 1 Q I think we have it. That day, that evening of 2 the accident, did you develop problems in any other parts of 3 your body? 4 A No, other than the headache, no. When I went 5 home I went and got Icement and put on it because I thought 6 that would take it away. 7 Q Just to skip ahead a little bit, what other 8 pArts of your body do you say were hurt in the accident. We 9 have covered at least through the first evening, we got the 10 left shoulder and neck area and your headaches. I want to 11 skip ahead just to wherever, so that you can describe the 12 other parts of your body, if any, that you say were hurt in 13 this accident? 14 A What happened was -- and this affected my 15 whole hand and my arm -- and there's a lot of things that I 16 don't do that I used to do. 17 Q We are going to cover all those, but for now 18 what I am trying to do is determine the parts of your body 19 that were hurt and we will cover all those things? 20 A Eventually, it affected this down in here and 21 my hand. 22 Q When you say "this down in here," you are 23 saying extending down into the elbow, all the way down into 24 your hand? 25 A Right. GIIOI" . LO"'A RI'OltTING SIltVICI. UOI PA"K elt., SUITI .. HIG., ,,. 11110 717'5"'1501 0" 10100'222'.577 ( . . PETERS & WASILEFSKI ATTORNIYS ANO COUNSILORS AT LAw 2931 NORTH FRONT STREIT HARRISBuRa, PENNSYLVANIA 11110 WII.I.IAM J, "'TlRS CHARLlS B. WAIIUPSKi alNNIS J. IONlrn J08l1'H C. I'HIWI'S MICHAEL ft. SONSHOCK THO""'I A. LANG 'AMlLA S, ,AllAlCANOOLA STlI'HIH " MOORI JlNN'flR L. lUSH KINNITH J, suaQy SCOTT A, PLlISCHAUIR TtUI'HONI1717l 231-7888 'AX 17171 231-7780 November 25, 1996 VIA FAX AND REGULAR MAIL (944-4004) Peter Henninger. Esquire 4000 Vine Street Middletown, PA 17057 RE: Lingle,. SlIvis Our FlIe No,: 27-13 Dear Attorney Henninger: . This letter will confirm that an IME bas been scheduled for Ms. Lingle with Dr. Alan Van Sant as follows: Monday, December 2, 1996 10:30 a.m, SpringdaJe Medical Center 9 Rathton Road York, PA 17403 Phone Number for Directions: 846-3877 Date: Time: Location: Thank you for your cooperation, If you have any questions or concerns, please do not hesitate to contact me. = I V", 1CJ &6P ~I N~ ~ Dennis 1. Bonetti :;J~ ~ a ~ -:. ..... '2. J . - (0 tQ - UI ~ J ... .. tQ j~l ~ I .. HSF) m I fJ al ~ m ru :: jA ~J I 1 I f!/11l Q. Jl I ~! I j . gj&!~8 I I J . lUi ~ 1 S61L ",'''' '0091: UUO~ Sd ',. C) (. '.. I It II , ( " . , ,- , H; ~_ i ~{ ,. ~ C., '1 , ; . '. c. . liQ lL' , ::'1... ,. 1', , " ~:..J Lj L. , () ., , .. 15. The office note of Dr. smith for February 19, 1993 falls to include any mention of an automobile accident on February 14, 1993. Answer: Denied. 16. Mrs. Lingle did not present to Dr. smith for treatment concerning the automobile accident of February 14, 1993 until March 3, 1993. Answer: Admitted. 4. Plaintiff avers that these answers were flip-flopped somehow and pursuant to Pa. R.C.P. 4014(d) she should be allowed to amend her answers since the presentation of the merits of the case will be subserved thereby and it had been the prior testimony and has been the position of the Plaintiff, Joann Lingle all along that she mentioned to Dr. Smith on February 19, 1993 the fact that she had been in an automobile accident on February 14, 1993 and that in fact was the reason for her visit of February 19, 1993. 5. Plaintiff delivers and therefore avers that the amendment of her Answer to Request for Admission will not prejudice your Defendant most specifically due. to the fact that to not grant such relief justice will be ill-served. 6, Your Defendant will not be prajudicad by this amendment since he would still be able to provida evidenca with regard to fact that Dr. Smith's record of February 19, 1993 fails to . . 4. Admitted. 5. Admitted in part, denied in part. Plaintiffs admit that the Answer faxed to Defendant on september 26, 1996 did not include a verification and in fact Plaintiff's counsel admits that his file copy did not include a verification however Plaintiff avers through her counsel that she did appear in counsel's office on June 5, 1996 and signed a verification and Plaintiff's counsel avers that he specifically recalls reviewing the Answers to the Request for Admissions - First Set with the Plaintiff and specifically recalls Joann L. Lingle signing verifications to be attached at that time. 6. Admitted in part and denied in part. Plaintiff's admit that the Answer to Request for Admission must be verified pursuant to Pa. R.C.P. 4014(b). Plaintiff specifically denies that the answers are legally defective due to the lack of verification based on Plaintiff and Plaintiff's counsel recollection of signed verification which counsel avers was included with the original answer sent to defense counsel on June 6, 1996. Thus the Requests for Admission-First Set should not be deemed admitted for the purposes of this litigation. 7. Admitted. 8. Admitted in part and denied in part. Although it is admitted that Plaintiff answered the Request for Admissions , . 2,3,5,6,7,8,10,11,12,13,14,15,18,18,20,21,22,23,24 and 27, as stated in averment number 8, your Plaintiff denies that said answers are legally insufficient and that the court should rule each said Request for Admission admitted for the purpose of this litigation. By way of further answer Plaintiff avers the reason that those sections were answered that way was that she did not have any specific recollection as to specific complaints made and specific's that occurred on the individual dates as set forth in the above-mentioned for Request for Admissions. 9. Admitted in part and denied in part. Although the averments cf paragraph 9 are admitted Mrs. Lingle Is unable to specifically recall exactly what she complained of on each specific date and therefore must state that her information is insufficient to enable admission. The fact that the records of Dr. Smith allegedly reflect Dr. Smith's recollection of what was important enough to record, there is no way that Mrs. Lingle can specifically recall what her specific complaints were and what specific discussions were on each individual date mentioned in the Request for Admissions submitted by your Defendants, and thus her answers are as truthful as they can possibly be. 10. Admitted in part and denied in part. Although it is admitted that Mrs. Lingle was the individual presented to Dr. Smith for treatment, that in Request for Admission number 4 she admitted that she did in fact present to Or. Smith on each of the occasions documented in the medical records, and that the only possible information available is information within the sole possession of Mrs. Lingle, that statement does not enable her to specifically recall her specific complaints to Or. Smith and the specifics of each visit on each of the dates mentioned in the Request for Admissions at issue in this case. 11. Denied. Your plaintiff specifically denies that it is not valid for her to deny the Requests for Admissions on the basis th~t she has made reasonable inquiry and the information known or readily available is insufficient to enable her to admit or deny the various Request for Admissions, for the reasons stated above in this answer. 12. Admi tted. 13. Denied. Plaintiff specifically denies that she failed to verify the Answer to the Request for Admissions in violation of Pa. R.C.P. 4014(b) and her Affidavit is attached hereto as Exhibit "A" acknowledging a specific recollection of review of the Answers to the Request for Admissions - First Set and her signing of the verifications in front of counsel on June 5, 1996. Plaintiff also specifically denies that her answers with regards to "lack of knowledge" are patently inadequate given the nature of the specific Request for Admissions due to the fact that her honest answers of a lack of recollection of her specific complaints on specific dates is clearly a sufficient answer. Any other answer, either a specific denial that she made those complaints or that certain events occurred on those dates or a specific admission that those were the only complaints that she made or events that occurred on those specific dates would be pure conjecture on her part for which she would be unable to sign a verification. The only answers that she can verify were the ones given in her answer to Request for Admissions-First Set and she therefore request that her Answers to Request of Admissions- First Set be accepted with the exception that her answers to numbers 15 and 16 have been flip-flopped and concurrent herewith your Plaintiff's are filing a motion to amend pursuant to Pa. R.C.P. 4014(d). WHEREFORE, your Plaintiffs, Joann L. Lingle and Abner O. Lingle, respectfully request that the Motion of the Defendant's with regards to Request of Admissions be denied and that Plaintiff's Answers to Request for Admissions-First Set with the exception of her answers to numbers 15 and 16 thereon be accepted for the purposes of the present litigation. "I' . . , 2, Counsel for Plaintiffs requested an extension of time until June 7, 1996 to respond to the Request for Admissions, Said request was granted by Counsel for Mr. Silvis, 3. Counsel for Mr, Silvis did not receive any substantive response to the Request for Admissions and, on July I, 1996, sent a leller to Counsel for Plaintiffs reflecting the fact that no response had been filed, A copy of the July I, 1996 leller has been previously attached to the Motion in Limine of Defendant, Todd Clark Silvis, as Exhibit "C" and is incorporated herein as thought the same were fully set forth at length, 4, On September 26, 1996, Counsel for Silvis faxed a copy of Plaintiffs' Answer to Defendant's Request for Admissions - First Set, which purportedly included a Certificate of Service dated June 6, 1996, A copy of Plaintiffs' Answer to Defendant's Request for Admissions - First Set, which was faxed on September 26, 1996 is attached hereto as Exhibit IIBII. 5, Plaintiffs' Answer to Defendant's Request for Admissions - First Set. did not include a Verification as required by Pa,R,C,P, 4014(b), 6, Since the Answer to Request for Admissions must be verified pursuant to Pa.R,C.P, 4014(b), Mr, Silvis believes and therefore avers that said answers are legally defective and. pursuant to Pa,R,C.P, 4014, the Defendant's Request for Admissions - First Set, should be deemed admitted for the purposes of this litigation. 7, With regard to Request for Admission Number I, Plaintiffs apparently denied the genuineness, authenticity and accuracy of the records of Samuel R. Smith, D,C, because one page of records was purportedly missing. A copy of two additional pages of Dr, Smith's records are attached hereto as Exhibit "C", With the two pages which are attached hereto as -2- " exhibit A DEFINITIONS The (ollowing def111itions arc applicable to each request (or admission and arc incorporated by re(erellCC into each request (or admission. (a) The tenn "person" as used herein. means any natura! person.. panncrshlp. corporation, or other business entity and all officers. (onner officers, directors, agents, employees, attorneys and others acting or purporting to act on behalf of such natural person, parmership. corporation or other business entity, (b) The term "document" as used herein, means the original and all copies of any writing and any other tangible thing or date compilation in your custody, possession or control. including, but not limited to, letters, reportS, agreements, telegranu. memorand.1. summaries or records of personal or telephone conversations, diaries. tape recordings. statistical statements. minutes or records of meetings, minutes or records o( conferences, expressions or statements of pollcy, lists of persons attending meetings or conferences, report and/or summaries of in:.crvlews, opinions or reportS of consultants, reportS or summaries of negotiations, brochures, pamphlets, circulars, draft of any documents, revisions of drafts of any documents, and original or preliminary notes. (c) The term "communications" as used herein, means all statements, admissions, denials, inquiries, discussions, conversations, negotiations. agreements, contracts, understandings, meetings. telephone conversations, letters, correspondence, notes, telegrams, telexes. advertisements. or any other form of written or verbal intercourse, 3 ., (d) The term "identify" as used with respect to documents means to state the date, author, addressee, type of document (e,g. letter), to identify its last-known custodian and locadon and the exhibit number of the document if it has been IDll1'ked during the course of a court proceeding. (e) The term "identify" as used with respect to non-written communications means state the date, persons that panicipatcd int eh communication. type of communication (e/g/ telephone conversation) and substance of the communication, (t) The term "identify" when used with respect to an Individual, means to give the person's fu1\ name, all known aliases, present and last-known business and home address, present or the last-known telephone number and present position or business aff1liation. (g) The term "identify" when used with respect to any other person, means to give the person's official, legal and fonnal name and/or the name under which the person acts or conducts business; the address of the person's place of business, profession. commerce or home; and the identity of the person's principal or chief executive officer or person who occupies a position most closely analogues to a chief executive, (h) If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the substa1lCe of the document or oral communication called for above, You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged, 4 I. DEFENDANT'S REOUEST FOR ADMISSIONS 1. A lIUC and correct copy of records of Donald R. Smith, D,C. ("Dr. Smith") Is Ottlll"l1ed as Exhibit "A", 2. On luly 9, 1982, loann Lingle ("Mrs, Lingle") initially presented to Dr. Smith for treatment, 3, On luly 9, 1982, Mrs. Lingle complained of problems with her right shoulder and arm, 4. Mrs. Lingle presented to Dr. Smith for treatment on each of the dates identified in the documents "subsequent visits and fmdings", loann Lingle, Case No. #2436. 5, On August 24. 1987, Mrs. Lingle complained of problems with her left shoulder. 6, On December 31, 1988, Mrs, Lingle was involved in an automobile accident and presented to Dr. Smith complaining of "neclc pain. neclc stiffness. mid.baclc pain. shoulder soreness right and left, . 7, On March 30, 1992, Mrs. Lingle presented to Dr. Smith and complained that she was sore between the shoulders and neclc. S, On April 21, 1992, Mrs, Lingle presented to Dr. Smith and complained that the upper dorsals were sore and arms get numb. 9. On March IS, 1992. Mrs. Lingle presented to Dr. Smith and complained of problems with her neclc. 5 .., 10, On May 20, 1992, Mrs, Lingle presented to Dr, Smith aDd complained tIw her arms and hips ache. 11. On August 24, 1992. Mrs. Lingle presented to Dr. Smith aDd complained, jflllr alia, that her shoulders ache, 12, On the eltamination record of Dr, Smith wl1ich reflects dates of examination beginning on September 16, 1992, the diagnosis of Dr, Smith was .shoulder and mid.baclc pain. . 13, On September 30. 1992, Mrs, Lingle presented to Dr. Smith and complained of upper dorsal and neck pain. 14. Mrs, Lingle presented to Dr, Smith for treaanent on Febnwy 19. 1993. 15, The office note of Dr. Smith for February 19, 1993 fails to include any mention of an automobile accident on February 14, 1993, 16. Mrs, Lingle did not present to Dr. Smith for ereaanent concerning the automobile accident of February 14, 1993 until March 3, 1993. 17, On March 3, 1993, the only restriction placed by Dr. Smith on the activities of Mrs, Lingle was that she was not lift over 15 pounds, 18. By March 5, 1993, Dr. Smith noted that Mrs, Lingle was much better but still sore. 19, On March 16, 1993, Mrs, Lingle complained of shoulder and neck pain and pain in the feet. 6 20. On Marth 22. 1993, Mn. Lingle complaiDed of low back SOrencs5 localized to left lower Iwnbar area. neck and shoulders bencr, 21. On April 7, 1993, Mn. Linile presented to Dr. Smith and complained of pain left hip. acck and shoulders bencr, 22. Betwccn April 2. 1993 and June 16, 1993, Mrs, Lingle did not complain of any left shoulder problems to Dr, Smith, 23. On June 21, 1993, Mrs, Lingle presented to Dr. Smith and complained of pain left scapular, mid back area, insidious onset. 24. From March 3, 1993 tbrough June 21, 1993, Mrs. Lingle did not complain of problems with her left ann. 25, On June 30, 1993, Mrs, Lingle presented to Dr. Smith and complained that she broke her nose by walldng intO an overhang on a porch. 26. A diagnostic chest x-ray was conducted on July 20, 1991. A true and correct copy of the report of the chcst x-ray is attached as Exhibit "B". 27, The findings on the chest x-ray oi July 20, 1991, included an old compression fracture demonstrating mild loss of axial height in the mid dorsal spine. 28. On April 2, 1993, Mrs, Smith presented to Dr, Wewer and complained of a cough and wheezing, left greater than right. 29, A chest x-ray was perfonned on April 2, 1993, which revealed an area of pneumonia in the left lower lobe of the lung. 7 exhibit B . " . in an automobile accident on December 31, 1988, and she complained ot "neck stittness", "mid back pain", and "shoulders sore". Plaintitf denies "neck pain and shoulder soreness ri9ht and left" 7. AdMitted and denied. Plaintiff admits she pre.ented herselt to Dr. Smith on March 30, 1992. Plaintitf has made reasonable inquiry and the information known or readily obtainable is insufficient to enable an admission or denial as to her complaints on March 30, 1992. 8. Admitted and denied. Plaintiff admits she presented herselt to Dr. Smith on April 21, 1992. Plaintiff has made reasonable inquiry and the information known or readily obtainable is insutficient to enable an admission or denial as to her complaints on April 21, 1992. 9. Denied. Plaintitt has milde rel4sonable inquiry and the information known or readily obtainable is insufficient to enable an admission or denial ot har prasentation to Dr. Smith and her complaints on March 15, 1992. 10. Admitted and denied. Plaintiff admits she presented herself to Dr. Smith on May 20, 1992. Plaintiff has made reasonable inquiry and the information known or readily obtainable is insufficient to enable an admission or denial of her complaints on May 20, 1992. 11. Admitted and denied. PlaJntlff admits she presented herselt to Dr. Smith on Augu~t 24, 19Q2. Plaintiff has made reasonable inquiry and ~ne intormncion known or readily 20"d c.uor pu~ ~.~nq.uuod 6~:L IIH..I. 96-9Z-d3S . ,. obtainable is insufficient to enable an admission or denial of her complaints on August 24, 1992. 12. Denied. Plaintiff has made reasonable inquiry and the information known or readily obtainable is insufficient to enable an admission or denial of Dr. Smith's diagnosis. 13. Admitted and denied. Plaintiff admits she presented herself to Or. Smith on September 30, 1992. Plaintiff has made reasonable inquiry and the information known or readily obtainable is insufficient to enable an admission or denial of her complaints on September 30, 1992. 14. Denied. 15. Denied. 16. Admitted. 17. Denied. plaintiff has made reasonable inquiry and the information known or readily obt~inabla is insufficient to enable an admission or denial as to th~ restrictions placed on her. lS. Denied. Plaintiff has made reasonable inquiry and the information known or readily obt^inablo is insufficient to enable an admission or denial. 19. Denied. Plaintiff hus mnda reasonable inquiry and the intorlllation known or readily obtainable is insufficient to enable an admission or denial. 20. Denied. Plaintiff has made reftsonable inquiry and the information known or readily obt~inablo is insufficient to enable an admission or denial of her complaintg on March 22, 1993. 21. Admitted and denied. Plaintiff admits she presented .0'd c.uor pun ~.~oq.UUOd 6~:L nHi 96-9Z-d3S . " . 28. Denied. 29. Admitted and denied. plaintiff admits a chest x-ray was performed on April 2, 1993. Plaintiff has made reasonable inquiry and the information known or t'l~,'dily obtainable is insufficient to enable an ~dmiD3ion or dnnial of the pneumonia in the lower left lobe of the lung, 30. Admitted and denied. Plnintiff admits she presented to Dr. Wewer for treatment on thu Jaya liutad. Plaintiff has made reasonable inquiry and the information known or readily obtainable is insu"ici'~nt !'.II "11:,"1" ;In aclmi::sion or denial for her traatment of pnQumnl\ia. 31. Admitted and dcntoll. l'l.-.1l1t,1 (I' admits she presented herself to Or. Wewer on JUI'I':I, 1'191. f'l:\inUfC has nlade reasonabla inquiry and tlw i III WJ'I:I,tl' i <,)n Imt1\.1I1 (IL. rcndi ly obtllinable is insuffh:il:'l1t \".(1 1:'11,,1111' all .u'lm,ht1ion or deninl. II. ~~.ML!!llEI\$.. ,1',0 l'!P'n~tlllllN'~" s r,N'r.r':IlI!Q<';J\'r.QllX.~.2 1.' Plainti!t'~' cll'n,I:,')" i,l'" ",,:;,,01 11).1<111 tho fLlct thnt it is unknown what f'laintHL'p. :'IWI.:Jl it, "clmpl".iJ\h~ waro on the dates of her visits to Or. Smi.th or Ill'. WClWCI'. Tho medical records ara notes of the treating phYIILC,io"lll, The: rC'cor.dn do not reelect plaintiff' s pc,rticuIIJl' cOlnplui lit::. 3. Plaintiff, JO;\Il11 ).,1 I),.no:' , w.i J J tl:al'.j ey 9"." ..uor puo ~.~Dq.uuOd 0~:L nHJ.. 96-9Z-c::I3S , 2436 PATIENTS' "ROGnESS REPOAT JOANN LINGLE CAli NO. PAlIl"'" tW.Il _II 2 SARA STR::ET MIDDLETOWN PA IlmiZ.c1 IlL HD. 939-6938 nUlnlllD BY oocurAllOH!.LORIST .DATI 10-14-94 AIIlI_IIX F IIlW. "MY DA II DIoIlIHOl1I AIIND/lllAUIIli. DATI .... ..., '., IU.'.QUINT VIIITI AHD "HDINas r I,,, I" 'h ~ - . - h v -'" I oL J II ""l~~ o. ",", ... _"..L. J IT ,. ./ .. -...J. - J.../ .. --- 10 "oJ. ,..11 ~, . - ~ 'J .r / t' -- . " ~_t? ll~1 ~ iQr?o 90, 0_/7 I' PI J1II4l 77 -/~ ~ YI- J......._. J._.A PATlEN""CAlLED~. ~ SHE FEELS 'MUCH tltlltK. WILL CALL IF NEED~ T "Iq ~,,~,.. rL~-' r...t::..,..i-,--;;;;" "'VT' ~i: I/~ 7"6,~Y /./A.'A-' f . II:~' r_RII.it/g 1 c(~. 'T . . ""!T. Ie I ,,, I mPl ( 7 NJ 1~lq\, ~,~. I: r:: rJ..lip I A.....n I Po ~ .flAI';P;; ":) VYJ n _~W.r. ...., I,,::' ICr I.':~. - It' _ {<. ,-." MPl '_ r-':'\ \' ,-,.,\ \ \\ \ \ ~ \r"\ \ \l \ U ':.I _1_- . . 4. Admitted. s. Admitted in part, denied in part. Plaintiffs admit that the Answer faxed to Defendant on September 26, 1996 did not include a verification and in fact plaintiff's counsel admits that his file copy did not include a verification however plaintiff avers through her counsel that she did appear in counsel's office on June 5, 1996 and signed a verification and Plaintiff's counsel avers that he specifically recalls reviewing the Answers to the Request for Admissions - First Set with the plaintiff and specifically recalls Joann L. Lingle signing verifications to be attached at that time. 6. Admitted in part and denied in part. plaintiff's admit that the Answer to Request for Admission must be verified pursuant to Pa, R.C.P. 4014(b). plaintiff specifically denies that the answers are legally defective due to the lack of verification based on Plaintiff and Plaintiff's counsel recollp.ction of signed verification which counsel avers was included with the original answer sent to defense counsel on June 6, 1996. Thus the Requests for Admission-First Set should not be deemed admitted for the purposes of this litigation. 7. Admitted. 8. Admitted in part and denied in part. Although it is admitted that plaintiff answered the Request for Admissions 2,3,5,6,7,8,10,11,12,13,14,15,18,18,20,21,22,23,24 and 27, as stated in averment number 8, your plaintiff denies that said answers are legally insufficient and that the court should rule each said Request for Admission admitted for the purpose of this litigation. By way of further answer Plaintiff avers the reason that those sections were answered that way was that she did not have any specific recollection as to specific complaints made and specific's that occurred on the individual dates as set forth in the above-mentioned for Request for Admissions. 9. Admitted in part and denied in part. Although the averments of paragraph 9 are admitted Mrs. Lingle is unable to specifically recall exactly what she complained of on each specific date and therefore must state that her information is insufficient to enable admission. The fact that the records of Dr. Smith allegedly reflect Dr. smith's recollection of what was important enough to record, there is no way that Mrs. Lingle can specifically recall what her specific complaints were and wnat specific discussions were on each individual date mentioned in the Request for Admissions submitted by your Defendants, and thus her answers are as truthful as they can possibly be. 10. Admitted in part and denied in part. Although it is admitted that Mrs. Lingle was the individual presented to Dr. smith for treatment, that in Request for Admission number 4 she . . admitted that she did in fact present to Dr. smith on each of the occasions documented in the medical records, and that the only possible information available is information within the sole possession of Mrs. Lingle, that statement does not enable her to specifically recall her specific complaints to Dr. smith and the specifics of each visit on each of the dates mentioned in the Request for Admissions at issue in this case. 11. Denied. Your Plaintiff specifically denies that it is not valid for her to deny the Requests for Admissions on the basis that she has made reasonable inquiry and the information known or readily available is insufficient to enable her to admit or deny the various Request for Admissions, for the reasons stated above in this answer. 12. Admitted. 13. Denied. Plaintiff specifically denies that she failed to verify the Answer to the Request for Admissions in violation of Pa, R.C.P. 4014(b) and her Affidavit is attached hereto as Exhibit "A" acknowledging a specific recollection of review of the Answers to the Request for Admissions - First Set and her signing of the verifications in front of counsel on June 5, 1996. Plaintiff also specifically denies that her answers with regards to "lack of knowledge" are patently inadequate given the nature of the specific Request for Admissions due to the fact that her honest answers of a lack of recollection of her specific complaints on apecific dates is clearly a sufficient ~nswer. Any other answer, either a specific denial that she made those complaints or that certain events occurred on those dates or a specific admission that those were the only complaints that she made or events that occurred on those specific dates would be pure conjecture on her part for which she would be unable to sign a verification. The only answers that she can verify were the ones given in her answer to Request for Admissions-First Set and she therefore request that her Answers to Request of Admissions- First Set be accepted with the exception that her answers to numbers 15 and 16 have been flip-flopped and concurrent herewith your Plaintiff's are filing a motion to amend pursuant to Pa, R.C.P. 4014(d). WHEREFORE, your Plaintiffs, Joann L. Lingle and Abner O. Lingle, respectfully request that the Motion of the Defendant's with regards to Request of Admissions be denied and that Plaintiff's Answers to Request for Admissions-First Set with the exception of her answers to numbers 15 and 16 thereon be accepted for the purposes of the present litigation. r. \ 'l ,.... ., , ' , , . " . .' " , . :1 , , . ) ill JOANN L. LINGLE and ABNER O. LINGLE, her husband, Plaintiffs , : IN THE COURT OF COMMON PLEAS;: " : CUMBERLAND COUNTY, PENNSYLVANIA v. TODD CLARK SILVIS, Defendant NO. 94-7010 CIVIL TERM JURY TRIAL DEMANDED CIVIL ACTION-LAW ANSWER TO MOTION OF DEFENDANT TODD CLARK SILVIS TO DETERMINE THE SUFFICIENCY OF PLAINTIFFS ANSWERS TO REOUEST FOR ADMISSIONS PURSUANT TO PA R.C.P. 4014lbl AND NOW, comes the Plaintiffs Joann L. Lingle and Abner O. Lingle, by and through their attorneys, Pannebaker & Jones, P.C. and hereby responds to the Motion of Defendant as follows: 1. Admitted. 2. Admitted. 3. Denied. The plaintiffs specifically deny that th~y did not respond to the Request for Admissions. Furthermore, Plaintiffs specifically deny that they received a copy of a July 1, 1996 letter until the time of telephone conference with the court to discuss the Motion in Limine of your Defendant. By way of further answer, the Plaintiffs aver that counsel mailed the Plaintiff's Answer to Request for Admissions on June 6, 1996 in accordance with the Certificate of Service attached thereto. , ~ 4. Admitted. 5. Admitted in part, denied in part. Plaintiffs admit that the Answer faxed to Defendant on september 26, 1996 did not include a verification and in fact Plaintiff's counsel admits that his file copy did not include a verification however plaintiff avers through her counsel that she did appear in counsel's office on June 5, 1996 and signed a verification and Plaintiff's counsel avers that he specifically recalls reviewing the Answers to the Request for Admissions - First Set with the plaintiff and specifically recalls Joann L. Lingle signing verifications to be attached at that time. 6. Admitted in part and denied in part. plaintiff's admit that the Answer to Request for Admission must be verified pursuant to Pa. R.C.P. 4014(b). Plaintiff specifically denies that the answers are legally defective due to the lack of verification based on Plaintiff and Plaintiff's counsel recollection of signed verification which counsel avers was included with the original answer sent to defense counsel on June 6, 1996. Thus the Requests for Admission-First Set should not be deemed admitted for the purposes of this litigation. 7. Admitted. 8. Admitted in part and denied in part. Although it is admitted that Plaintiff answered the Request for Admissions . .' 2,3,5,6,7,8,10,11,12,13,14,15,18,18,20,21,22,23,24 and 27, as stated in averment number 8, your Plaintiff denies that said answers are legally insufficient and that the court should rule each said Request for Admission admitted for the purpose of this litigation. By way of further answer Plaintiff avers the reason that those sections were answered that way was that she did not have any specific recollection as to specific complaints made and specific's that occurred on the individual dates as set forth in the above-mentioned for Request for Admissions. 9. Admitted in part and denied in part. Although the averments of paragraph 9 are admitted Mrs. Lingle is unable to specifically recall exactly what she complained of on each specific date and therefore must state that her information is insufficient to enable admission. The fact that the records of Dr. smith allegedly reflect Dr. smith's recollection of what was important enough to record, there is no way that Mrs. Lingle can specifically recall what her specific complaints were and what specific discussions were on each individual date mentioned in the Request for Admissions submitted by your Defendants, and thus her answers are as truthful as they can possibly be. 10. Admitted in part and denied in part. Although it is admitted that Mrs. Lingle was the individual presented to Dr. smith for treatment, that in Request for Admission number 4 she I. admitted that she did in fact present to Dr. smith on each of the occasions documented in the medical records, and that the only possible information available is information within the sole possession of Mrs. Lingle, that statement does not enable her to specifically recall her specific complaints to Dr. smith and the specifics of each visit on each of the dates mentioned in the Request for Admissions at issue in this case. 11. Denied. Your Plaintiff specifically denies that it is not valid for her to deny the Requests for Admissions on the basis that she has made reasonable inquiry and the information known or readily available is insufficient to enable her to admit or deny the various Request for Admissions, for the reasons stated above in this answer. 12. Admitted. 13. Denied. Plaintiff specifically denies that she failed to verify the Answer to the Request for Admissions in violation of Pa, R.C.P. 4014(b) and her Affidavit is attached hereto as Exhibit "A" acknowledging a specific recollection of review of the Answers to the Request for Admissions - First Set and her signing of the verifications in front of counsel on June 5, 1996. Plaintiff also specifically denies that her answers with regards to "lack of knowledge" are patently inadequate given the nature of the specific Request for Admissions due to the fact that her , honest answers of a lack of recollection of her specific complaints on specific dates is clearly a sufficient answer. Any other answer, either a specific denial that she made those complaints or that certain events occurred on those dates or a specific admission that those \/ere the only complaints that she made or events that occurred on those specific dates would be pure conjecture on her part for which she would be unable to sign a verification. The only answers that she can verify were the one5 given in her answer to Request for Admissions-First Set and she therefore request that her Answers to Request of Admissions- First Set be accepted with the exception that her answers to numbers 15 and 16 have been flip-flopped and concurrent herewith your Plaintiff's are filing a motion to amend pursuant to Pa. R.C.P. 4014(d). WHEREFORE, your plaintiffS, Joann L. Lingle and Abner O. Lingle, respectfully request that the Motion of the Defendant's with regards to Request of Admissions be denied and that Plaintiff's Answers to Request for Admissions-First Set with the exception of her answers to numbers 15 and 16 thereon be accepted for the purposes of the present litigation. JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-7010 CIVIL TERM TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL, Defendants PLAINTIFFS' RESPONSE TO DEFENDANTS' KOTION TO FILE A DEMAND FOR JURY TRIAL AND NOW, come the plaintiffs, Joann L. Lingle and Abner O. Lingle, by and through their attorneys, Pannebaker and Jones, P.C., and respond to the Defendants' Motion as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that Plaintiffs alleged certain personal injuries as a result of this accident. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to whether or not in Defense counsel's practice, plaintiffs routinely requests jury trials in such cases, especially since this Plaintiffs' counsel does not routinely request jury trials in such cases. Proof to the contrary is demanded. 3. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 3 of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. By way of further answer, Plaintiffs aver that the fact that the counsel for Defendants did not notice that the caption failed to include a request for a jury trial 3nd that defense counsel's alleged inadvertent failure to include a request for jury trial that time has any bearing on the statutory and case law in this matter since the provisions under Pa, R.C.P. 1007.1 and the cases addressing that section do not allow any inadvertence as a defense to the waiver of the right to request a jury trial. Proof to the contrary is demanded. 4. Denied. After reasonable investigation, Plaintiffs are without knowledge or informati~n sufficient to form a belief as to the truth of the averments in paragraph 4 of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that on or about September 7, 1995 Plaintiffs' counsel requested this matter be listed for a Non-Jury Trial in accordance with the pleadings. Plaintiffs' specifically deny that Defendants' counsel did not realize that a Non-Jury trial had been requested at that time. By way of further response, Plaintiffs aver that Defendants failed to raise this issue until Defendants' counsel wrote a letter dated October 25, 1995 to Plaintiffs' counsel, a copy of which has been attached to Defendants' Motion and marked Exhibit "A". Proof to the contrary is demanded. 7. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of Defendants' Motion which averments are accordingly denied. By way of further response, Plaintiffs aver that Defendants' alleged intention to wait until a Judge had been assigned to the case, constitutes a deliberate intent to delay bringing this matter to the attention of the Court which action should not be condoned by the granting of Defendant's Motion. Proof to the contrary is demanded. 8. Admitted. 9. Admitted. 10. Admitted. 11. Neither admitted nor denied, it is averred that the Constitution speaks for itself. 12. Neither admitted nor denied, it is averred that the Pennsylvania Rules of civil Procedure speak for themselves. 13. Neither admitted nor Denied, it averred that the Pennsylvania Rules of Civil Procedure speak for themselves. 14. Neither admitted nor Denied, it averred that the Pennsylvania Rules of Civil Procedure speak for themselves. 15. Denied. The averments contained in paragraph 15 constitute legal conclusions or statements of law to which no response is required. To the extent a response is required, it is averred that Recht v. citv of pittsburqh, which the Defendant cites for support, is not controlling in this case and is distinguishable based on the facts of the decision; therefore, Recht lacks value as precedent here. Proof to the contrary is demanded. By way of further answer, your Plaintiffs direct this Court to the holding of the Superior Court in Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa. Super, 275, ____, 556 A.2d 904, 906 (1989) where the court stated "this is not to imply that full compliance with the Rules of Procedure is not required or that failure to do so is without peril." il. And also to case of E.J. MacAleer and Co.. Inc. v. Iceland Products. Inc., 475 Pa. 610, , 381 A.2d 441, 444 (1977) where the Court stated "we have intentionally avoided a discussion of the reason Plaintiff assigns for not filing exceptions within the mandate of Rule 1038(d). We have done so for the simple reason that if inadvertence of counsel were a valid reason for disregarding the time limitation rules of our Supreme court, then they might as well not have any rules at all." l.!;!. 16. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 16 of Defendants' Motion which averments are accordingly denied. By way of further response, it is averred that inadvertence or a lack of intent to waive the right to a jury trial on the part of the Defendants does not constitute good cause to circumvent the Rules. Proof to the contrary is demanded. 17. Denied. It is specifically denied that rescheduling this case for trial by Jury will not unduly burden this Court. By way of further response, it is averred that rescheduling this case for a Jury trial will place an undue burden on the Court by creating an additional need for jurors, by lengthening the trial process due to jury selection and determination of matters Defendants believed that this matter wOllld be tried before a jllry. 5. On Febr'lary 2, 1995, Plaintiff~ filed their Reply to Defendants' New Matter. 6. Defedants' COllnsel did not realize a non- i'lry trial had heen reqllested IInti! September 7, 1995, when Plaintiffs COllnsel requested that this matter be listed for a non-jllry trial. 7. Defense Counsel intended to raise the issue covering a jury trial after a Jlldge was assiqned the case. 8. On October 18, 1995, J1Idge Harold E. Sheeley signed an Order striking the case from the November trial list because cOllnsel failed to call the case for trial. 9. On October 25, 1995, Defendants' Counsel wrote to Plaintiffs' COllnsel and reql1ested a Stipl1la tion to have this matter proceed to a jllry trial. A trlle and correct copy of this letter is attached as Exhibit "A". 10. fly letter dated October 27, 1995, Plaintiffs' COllnsel advised that he wOl1ld not agree with Defendants' reqllest for a jl1ry trial. (A trlle and correct copy of Plaintiff's letter is attached and marked as Exhibit "B".) 11. Article One, Section Six of the Pennsylvania constitlltion provides: "Trial by jur}' shall be as heretofore and the right thereof shall remain inviolate." 12. Rille 1007.l(a) of the Pennsylvania Rules of Civil Procedure provides: - 2 - In any action in which the right to a jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty (20) days after service of the last permissible pleading. The demand should be made by endorsement on a pleading or by a separate writing. 13. Rule 126 of Pa. R.C.P. provides: The Rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The Court at ever)' stage of any such action or proceeding may disregard any error or defect or procedure which does not effect the substantial rights of the parties. 14. Rule 248 of the Pa. R.C.P. provides: The time prescribed by any Rule of Civil Procedure for the doing of any act may be extended or shortened by written agreement of the parties or or by Order of the Court. 15. While the right to a jury trial may be waived, any doubts should be resolved in favor of allowing a jury trial, in light of the liberal construction of the Rules of Civil Procedure provided by Rule 126, and more importantly, in light of the constitutional guarantee of the right to trial by jury. Recht v. City of Pittsburgh, 118 Pa. Cmwlth. 381, 545 A.2d 450 (1988). 16. Defendants never intended to waive their right to a j11ry tria 1. Rather, the failure to include the request in the caption of the Answer was based "pon inadvertence. 17. Defendants I request for a jury trial, although made more than twenty (20) days after the last permissible pleading, will not unduly burden this Honorable Court. - 3 - exhibit A JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND, PlaintiffS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 94-7010 CIVIL TERM TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL, Defendants PLAINTIWWS' RESPONSB TO DEWENDANTS' MOTION TO ~ILE A DEMAND WOR JURY TRIAL AND NOW, come the Plaintiffs, Joann L. Lingle and Abner O. Lingle, by and through their attorneys, Pannebaker and Jones, P.C., and respond to the Defendants' Motion as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that Plaintiffs alleged certain personal injuries as a result of this accident. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to whether or not in Defense Counsel's practice, plaintiffS routinely requests jury trials in such cases, especially since this Plaintiffs' counsel does not routinely request jury trials in such cases. Proof to the contrary is demanded. 3. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 3 of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. By way of further answer, Plaintiffs aver that the fact that the counsel for Defendants did not notice that the caption failed to include a request for a jury trial and that defense counsel's alleged inadvertent failure to include a request for jury trial that time has any bearing on the statutory and case law in this matter since the provisions under Pa. R.C.P. 1007.1 and the cases addressing that section do not allow any inadvertence as a defense to the waiver of the right to request a jury trial. Proof to the contrary is demanded. 4. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 4 of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that on or about September 7, 1995 Plaintiffs' counsel requested this matter be listed for a Non-JUry Trial in accordance with the pleadings. Plaintiffs' specifically deny that Defendants' counsel did not realize that a Non-Jury trial had been requested at that time. By way of further response, Plaintiffs aver that Defendants failed to raise this issue until Defendants' counsel wrote a letter dated October 25, 1995 to Plaintiffs' counsel, a copy of which has been attached to Defendants' Motion and marked Exhibit "A". Proof to the contrary is demanded. 7. Denied. After r:easonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of Defendants' Motion which averments are accordingly denied. By way of further response, plaintiffs aver that Defendants' alleged intention to wait until a Judge had been assigned to the case, constitutes a deliberate intent to delay bringing this matter to the attention of the Court which action should not be condoned by the granting of Defendant's Motion. Proof to the contrary is demanded. 8. Admitted. 9. Admitted. 10. Admitted. 11. Neither admitted nor denied, it is averred that the constitution speaks for itself. 12. Neither admitted nor denied, it is averred that the Pennsylvania Rules of civil Procedure speak for themselves. 13. Neither admitted nor Denied, it averred that the Pennsylvania Rules of civil Procedure speak for themselves. 14. Neither admitted nor Denied, it averred that the Pennsylvania Rules of civil Procedure speak for themselves. 15. Denied. The averments contained in paragraph 15 constitute legal conclusions or statements of law to which no response is required. To the extent a response is required, it is averred that Recht v. citv of pittsburqh, which the Defendant cites for support, is not controlling in this case and is distinguishable based on the facts of the decision; therefore, Recht lacks value as precedent here. Proof to the contrary is demanded. By way of further answer, your Plaintiffs direct this Court to the holding of the Superior court in Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa. Super, 275, ____, 556 A.2d 904, 906 (1989) where the court stated "this is not to imply that full compliance with the Rules of Procedure is not required or that failure to do so is without peril. II .I.I1. And also to case of E.J. MacA leer and Co.. Inc. v. Iceland Products. Inc., 475 Pa. 610, , 381 A.2d 441, 444 (1977) where the Court stated "we have intentionally avoided a discussion or the reason Plaintiff assigns for not filing exceptions within the mandate of Rule 1038(d). We have done so for the simple reason that if inadvertence of counsel were a valid reason for disregarding the time limitation rules of our Supreme Court, then they might as well not have any rules at all." 1.ll. 16. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 16 of Defendants' Motion which averments are accordingly denied. By way of further response, it is averred that inadvertence or a lack of intent to waive the right to a jury trial on the part of the Defendants does not constitute good cause to circumvent the Rules. Proof to the contrary is demanded. 17. Denied. It is specifically denied that rescheduling this case for trial by Jury will not unduly burden this Court. By way of further response, it is averred that rescheduling this case for a Jury trial will place an undue burden on the Court by creating an additional need for jurors, by lengthening the trial process due to jury selection and determination of matters ,of .. exhibit B ",,"1,,1,...., _lil...,q "'" ...,.t.IU (i) . . <4 .. ( ( CO'f'C~'t'H or p~VANV._ o::tJM"! or C'..M!E.~ JOANN L. LINGLE and ABNER O. LINGLE, Her Husband, Plaintiffs TO. . . I I IODD CLARK SILVIS and PAIRICIA I . SCHOFFSIALL, 5 fJ 3 ? 0 E N A Defendants Records Custodian. Northwestern NatiDnal v. Fila No. 94-7010 Insurance Central Regional Center, P.O. Box 182087 Columbus OH 4 1. 'leu L-S or;!e::-ecl. by t.....e c:J1:': to e::sre to Peters & Wasilefski. 2931 North Front Street, HarrisburR. PA 17110 (Sl,?8Ci-oSy co~_.......R or oti".e.r p.Lece1 at Dauphin County, Penn:lylwnia. onMarch 9. .l995 at 9:00 o I c:J.oc.l(. A M., to testify on behaU of Defendants in troll above cae, and to relNl.in until elCC'..:sec!. 2. And acnq with you troll following: copies of chI! ,,"fir.. Fir... party benefits file regarding Joann L. LinRle. SSN: 164-30-3382. and/or the the Flower Pot Boutique, Claim No: N05446. U you :aJ.l to Attend or to pr:xh.lce t.t".e doC'..mana or t:unc.;:s ~ by t.'U.s suJ:poenA, you lI1l!Y be subjec': to t....~ sanc:--..icns a1Jtlxll:'Uec! by ~ 234." of the Pennsylwnia Rules of Ci~ i'::e<:ecIurI!l, in",lt'''''\q but not limited to cosa, at:t:o:c".ey fees and iI!9r'...sorment:. ISStS BY ,\ S'AR!"!/CCUNSE!. IN CCMPtDNC: wrni Pa.R.C.S'. No. 234.2(al w.M!::: Dennis J.' Bonet ti, Esquire ADOR::Ss,2931 North Front Street Harrisburg, PA 17110 ~HONE: (7l7) 238-7555 SUP~ CClJRl' m# 34329 - BY TH:: CCURl'1 ~L-It-e,\ N ~ lNl./ (::.'v- Pl:OthonotLj, Cilfl Di~sion j~ , jl-LL~ I Ce t:'f . DA~I I 0 f t.":e Col:': omc!..~ ~l This for.n of SUbpoeM sr.a.ll be used whenever a subpoena is isSUZlb1e, inclcdil\g h~..nC;S in c:Jnnecticn wit..... dep::lsition.5 ar..d before L.-l;:li!+OOZltOrs, maste.."'S. c:mnissicne..--s, etc. in c::IT'911ance wi':.'" Sla.R.C.P. No. 234.1. I! a subpoena for proCucticn of Ccc...n'e."lts, ::8c:Jrc!s 0:: ti'.i."lC;S is desi..."'ed. COl'91ete pantg=aph 2. (Rev. 1/90) .. . ( ( VERIFICATION OF RECORDS CUSTODIAN I, the 'lndersi9ned, being duly Iworn according to law, depole and IlaY that I am the duly a'lthorized c'lstodian ot records tor Northwestern National Insllrance Grollp, and hereby certify to the tollowing I 1. The records attached hereto are true and correct copies of the entire first party benefits file regarding The Flower Pot BO'ltique and/or Joann l:.ingle, Claim No I N05446. 2. That, inclllding this verification, all records which are in my custody, have been photocopied at my office, in my presence, at my direction and lInder my sllpervision by 3. That ,mless qualified in paragraph (51, all records produced in my presence were prepared in the ordinary course of bllsiness by authorized personnel at or near the time of the act, condition or eventl and 4. A carefnl search has been made by me or at my direction for copies of the records listed above regarding Joann L. Lingle/The Flower Pot BOlltiq11e and the records produced herweith constitllte and are the true records of Northwestern National InSl1rance Grollp. 5. Additional Comments: (Be sure to enter the word "None" if there are none.) ~ , ( ( CCM'Cl~ni or Il!N'lS'iLVANI). CCUNt"t Of' C'.J""..t.~ JOANN L. LINGLE and ABNER O. LINGLE, Her Husband, Plainei!!s I I I I PATRICIA I . SC13?0E:NA rlle No. 94-7010 '1'0. v. TODD CLARK SILVIS and SCHOFFSTALL, Defendants Records Custodian. William A. Wp.vp.r . n n 1n South Front Stt'"P.P.r Steelton, PA 17113 1. Ycu L'" =-red 'oy t.":.e C=~ to C'Cl'i! to Peters & Wasiletski, 2931 North Front Street, Harrisbur~. PA 17110 (Speei..-r co~-oan or otMr pUceI at Dauohin Cclunty, pennsy1venill, onM,.,...h q 1995 at 9:00 o'clock, A M., to testify on beIWf o~ Defendents 1:\ erA above cue, and. to :esnein until exc'..1Sed. 2. And br:!.nq with yQu the ~olJ.owinql copies of any and all records , reports and dia nostic studies re erdin Joann L. Lin u you ::.u.L. co at:end or co prod1Jce trA dcc'..:nelltS or t:WlC;:S ~ by thiS subpoena, :you ml1'f ~ subjec': to the sanc:-..icnS author'..zed by Rule 234.~ of t.~ Pennsylwnia ~ of Civi.l. ~......edIJre, inc'",H"q but not limited to COS'CS, al::=ey fees and ~r'-SOl1llJ!l\t. ISStJEO 3Y A 'r;.m:'!/CCUNSif:L IN CCI'!P~ WI'::-i i'1l.R.C.P. ~. 234.2(al NAI'!5:: Dennis J: Bone t ti, Esquire ACCRESs,293l North Front Street Harrisburg, PA 17110 ~HONEI (717) 238-7555 SUi'~ CCURl' IDII 3432 9 . DA-::::J i:;;./'" IftJ I tJ ft C' , 0:: t.":e Co~ BY 'I'S CCtjR'l' I ~ LlH"~,,-dL (;-; L'\J u 0.r p:::lthonotar/, C.!.vU Division r ~),'L~'Y Or:.l.C!,;,:, NO'tZI This for.n of subpoena shall be used whellever a subpoena is isSlmb1e, inc:.l.l.,c!i.:lq h~_"lS:S in cOMec:icn with depositicns IInd before L-,;)i~tor.s, lM.Ste-'"S, e:::trnissicne-""'S, ecc. in CClT'9llomce with "a.R.C.i'. ~. 234.1. !! a subpoena ~or ;w.x!uc':icn of c!cc'..:r.entS, recor-'-s or thillC;S is desired. c=trP1ete ~~h 2. (?.a..... 1/901 .. ( ( VERIFICATION OF RECORDS CUSTODIAN I, the undersigned, being d'lly sworn according to law, depose and say that I am the duly authorized custodian ot records for William A. Wewer, 0.0., and hereby certity to the tollowin9t 1. The records attached hereto are tr'te and correct copies of any and all records, reports and dia9nostic studies regarding Josnn L. Lingle. 2. That, including this verification, all records which are in my c1lstody, have been photocopied at my office, in my presence, at my direction and 11nder my supervision by J. That unless qualitied in paragraph (5), all records prod',ced in my presence were prepared in the ordinary course of b',siness by a"thorizen personnel at or near the time of the act, condition or event; and 4. A careful search has been made by me or at my direction for copies of the records listed above regarding Joann L. Lingle and the records prod'lced herweith constit"te and are the trlle records of William A. Wewer, 0.0.. 5. Additional Comments: (Be sure to enter the word "None" if there are none.) ( o:M'C~&Lnf Of' p!l'flSYt,VANL\ c:;um'! OF C'..."'.&.~ JOANN L. LINGLE and ABNER O. I LINGLE, Her Husband, I Plaintiffs I rile No. 94-7010 v, I TODD CLARK SILVIS and PATRICIA I . SCHOFFSTALL, 5 U 3 ? 0 e: N ,\ Defendants '1'0. Communitv ImsR:inJl Associates. 865 South Arlinlltrtn Aventtp J.f'Ilrri ~hl1r,. Pennsylvania 17109 1. You a...... or:!e::'l!d. by t....II e:lu::": to c::mI to Pe ters & Wasilefski, 2931 North Front Street, Harrisbur~, PA 17110 (Speci...'"y e:lur=oatl or otl".er plAce) at Dauphin County, pennsylvania, onMarch 9. 1995 at 9:00 o ' cJ.oc.Ic. A M.. to testify on beM.lf ot! Defendant in tl".e above case, and. to rerrain until excused. 2. And br'..ng with yt:lu the t!oJ.J.cwi.ngl copies of any and all records, reoorts and diagnostic studies includin~ cODies of MRI film. rpiAr~ini Joann L. Lin Ie SSN: 164-30-3382. ~ yt:lU _ to 4t,:end or to p erA dcc'..m!l1t.S or UWl<;:5 reqw...-M thiS S\llJpoena, you rray be subjec:': to tl".e sanc-..icns 4Utt:oC.%ed by Rule 234.S of the roenn.sylwnia ~es of ~v"...l p:...,.:;edure, i.nc"...H'1q but not limited to =t.S, att=ey fees and. inl;lr'..:sonlll!nt. tSS"UEP BY i'o ?AR'l"!/CCUNSzt. IN CCMP~ WI'!'H Pa.R.C.P. No. 234.2( 8) W\."!5:: Dennis J," Bonetti, Esquire ACCRESS~931 North Front Street Harrisburg, PA 17110 ~~~: (717) 238-7555 SUi'~ CCURl' ID# 34329 . CAn:1 tk 1& /lNI/' , of tr.e Cour: BY no:=: CCURl'1 LLl.'NllLJ... 1;; bA Ju Ihr- P:';Jd'.cnotar/, ~1' 'tJivisien )bL /J . >/'1 ~ I .... V . De Ot:.l.C:::;':' ~l ~ for:n of subpoel'.a shall be used whenever a sub;:oena is is~1e, i..,clcCi.,q h~-"<;S in cOMect:.cn wi::."! depositions MId before a...-':lit,..-ators. ma.ste..'"'S, c::::rmissicne..'"S. etc. in co~liance wit."! ?a.R.C.!'. No. 234.1. I! a subpoena fer proc:!.cc':ien of c!cx:'...r.awts. recc~ or things is desi-"'l!d. c0T91ete pan~h 2. (?.e'I. l/90) VERIFICATION OF RECORDS CUSTODIAN I, the undersiqned, beinq duly sworn accordinq to law, depose and lIay that I am the duly allthorized custodian of record. for Community Imaqinq Associates, and hereby certify to the followinq: 1. The records attached hereto are true and correct copies of any and all records, reports and diaqnostic stlldies incl udinq copies of MRI films reqardinq Joann L. Linqle. 2. That, incllldinq this verification, all records which are in my custody, have been photocopied at my off1.ce, in my presence, at my direction and llnder ml' sllpervision by - . . 3. That unless qllalified in paraqraph (51, all records produced in m? presence were prepared in the ordinary course of business by authorized personnel a t or near the time of the act, condition or event; and 4. A careful search has been made by me or at my direction for copies of the records listed above reqardinq Joann L. Linqle and the records produced herweith consti~lte and are the true records of Community Imaging Associates. 5. Additional Comments: (Be sure to enter the word "None" if there are none.1 .. . . VERIFICATION OF RECORDS CUSTOCIAN I, the nndersigned, being dnly sworn according to law, depose and say that I am the dnly a.,thorized cnstodian of records for Occ',pational Rehab and Research Associates, and hereby certify to the following: 1. The records attached hereto are true and correct copies of any and all records, reports and diagnostic studies regarding Joann L. Lingle. 2. That, inclnding this verification, all records which are in my c.,stody, have been photocopied a t my office, in m)' preaence, at my direction and 'lnder my supervision by 3. That nnless qnalified in paragraph (5), all records prod"ced in my presence were prepared in the ordinary conrse of bnsiness b)' al,thorized personnel at C'r near the time of the act, condition or event; and 4. A carefnl search has been made by me or at my direction for copies of the records listed above regarding Joann L. Lingle and the records prC'd'lced herweith constitnte and are the trne records of OCC11patiC'nal Rehab and Research Associates. 5. Additional Comments I (Be S1lre to enter the word "None" if there are none .1 ~ - .... 0 (::; /. '6 c.:., :'.l..~ (,\:..: \,{6 ~ L)~/ ~~: 0.- ("..'1 $i -.,. .~- - :~' IJ) ~~! - l-.~f c...~ \J;,'J of-: ~, I ':~! ~~. ~\ r_; 11- ,I'> (;) l)~' u 3. Admitted. 4. Admitted in part and denied in part. Upon information and belief, it is admitted that Plaintiff was the driver of a 1989 Dodge Ram van, registration plate YH66475. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the ownership of the vehicle andlor the relationship of Ms. Lingle to the business entity, The Flower Pot Boutique. By way of further answer, Defendants are without knowledge or information sufficient to form a belief as to whether Plaintiff was actually stopped eastbound on East Main Street in Shiremanstown at Carroll ton Alley, waiting for a vehicle in front of her to make a left-hand turn, and the same is therefore denied. By way of further answer, Defendants, after reasonable investigation, are without sufficient knowledge with regard to whether the vehicle driven by Tonya R. Srouji was stopped, and the same is therefore denied. By way of further answer, it is specifically denied that Todd Clark silvis suddenly and without warning drove the 1982 Chevrolet Camaro owned by Defendant Patricia Schoffstall in such a manner that it collided with the rear end of the vehicle of Tonya R. Srouji with such violent force that it propelled said vehicle of Tonya R. Srouji into the rear of the Dodge Ram van operated by the Plaintiff. To the contrary, Defendant silvis would not characterize any collision involved in this accident as "violent." -2- 5. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 5, and the same is therefore denied. 6. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 6, and the same is therefore denied. 7. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in Paragraph 7 state conclusions of law to which no answer is required. To the extent an answer is required, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments with regard to the nature and extent of Plaintiff's injuries as a result of the accident of February 14, 1993, and the same is therefore denied. By way of further answer, it is specifically denied that Defendants were independently and/or solely negligent under the facts and circumstances of the present case. To the contrary, Defendants acted reasonably and appropriately under the facts and circumstances of the present case, 8. Denied. Defendant Silvis is advised by counsel and therefore avers that the allegations contained in Paragraph 8 state conclusions of law to which no answer is required. To the -3- extent an answer is required, it is specifically denied that Silvis was negligent in that: a. He did operate the vehicle in a reckless manner under the circumstances. To the contrary, Mr. Silvis did not opdrate the vehicle in a reckless manner under the facts and circumstances of the present case. b. He failed to have his vehicle under proper and adequate control at the time of the accident. To the contrary, Silvis acted reasonably and appropriately under the facts and circumstances of the present case. c. He operated the vehicle and failed to take proper precaution to insure that he had a safe, clear distance in which to stop to avoid colliding with the vehicle immediately behind the Plaintiff's vehicle. To the contrary, silvis is advised by counsel and therefore avers that the assured clear distance rule is inapplicable under the facts and circumstances of the present case and, further, under the facts and circumstances of the present case, silvis reasonably and appropriately operated his vehicle, d. He failed to operate the vehicle in such a manner that would enable him to avoid the vehicle immediately in front of him and immediately behind the vehicle of the Plaintiff. To the contrary, silvis acted reasonably and -4- appropriately under the facts and circumstances of the present case. e. He did operate his vehicle without due regard to the safety and position of Plaintiff herein, at the point aforesaid, To the contrary, silvis appropriately operated his vehicle under the facts and circumstances of the present case. Defendant Schoffstall is advised by counsel and therefore avers that the allegations contained in Paragraph B pertain to Defendant Silvis and, therefore, no answer 1s required by Schoffstall, 9. Denied. Defendant Schoffstall is advised by counsel and therefore avers that the allegations contained in Paragraph 9 state conclusions of law to which no answer is required. To the extent an answer is required, it is specifically denied that Schoffstall was negligent in that: a. She entrusted her vehicle to Defendant, Todd Clark Silvis, knowing of the reckless manner in which he would operate said vehicle. To the contrary, it is specifically denied that silvis operated the vehicle in a reckless manner under the facts and circumstances of the present case and/or that Schoffstall knew or had reason to know how silvis operated the vehicle under the facts and circumstances of the present case. -5- b. she failed to take adequate safeguard or steps to insure that said vehicle would be operated safe:y. It is specifically denied that the vehicle was not operated safely under the facts and circumstances of the present case and/or Schoffstall took reasonable precautions under the facts and circumstances of the present case, c. She allowed her vehicle to be operated without due regard for the safety and position of the Plaintiff herein, at the point aforesaid. To the contrary, Schoffstall acted reasonably and appropriately under the facts and circumstances of the present case. silvis is advised by counsel and therefore avers that the allegations contained in Paragraph 9 pertain to Defendant Schoffstall and, therefore, no answer is required by silvis. 10. Denied, After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 10, and the same is therefore denied. 11. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 11, and the same is therefore denied. 12. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as -6- 17. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 17, and the same is therefore denied. ~REFORE,Defendants Todd Clark silvis and patricia Schoffstall demand judgment in their favor and against Abner O. Lingle without cost. I NEW MATTER I 18. Plaintiff's claims are barred by the applicable Statute of Limitations. 19, Any damages Plaintiff may recover in this action should be reduced or barred, in whole or in part, by the Pennsylvania Motor Vehicle Financial Responsibility Act, as amended. 20. Plaintiff's alleged injuries and damages, if any, which are specifically denied, may have been caused either in whole or in part by the acts or omissions of third parties other than Defendant. 21. Plaintiff's injuries and damages, if any, which are specifically denied, may have been pre-existing, either in whole or in part. -8- JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . . v. NO. TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL Defendants CIVIL ACTION -LAW COMPLAINT AND NOW, comes the Plaintiffs, Jeann L. Lingle and Abner O. Lingle, by and through their attorneys, Pannebaker and Jones, P.C., and any as follows: COUNT NO. 1 JOANN L. LINGLE V. TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL 1. The Plaintiff, Joann L. Lingle, is an adult individual who currently resides at 2 Sara Street, Middletown, Dauphin County, Pennsylvania 17057. 2. The Defendants are Todd Clark Silvis and Patricia Schoffstall, adult individuals whose last known address was 6 North Chestnut street, Dillsburg, York County, Pennsylvania 17019. 3. At all times relevant hereto, the Defendant Patricia Schoffstall was the owner of a 1ge2 Chevrolet Camaro, Pennsylvania registratien number ABW5053. 4. On or about February 14, 1993, at approximately 1:50 p.m. Plaintiff was the driver of a 1989 Dodge Ram Van registration plate YH66475 owned by her business, The Flower Pot Boutique, and was stopped eastbound on East Main Street in Shiremanstown, at Carrollton -1- Alley waiting for a vehicle in front of her to make a left-hand turn. While she was stopped a vehicle driven and owned by Tanya R. Srouji stopped immediately behind her, and then suddenly, without warning, Defendant, Todd Clark silvis, drove the 1982 Chevrolet Camaro owned by Defendant Patricia Scheffstall in such a manner that it collided with the rear end ef the vehicle of Tanya R. Srouji with such violent force that it propelled said vehicle of Tanya R. srouji into the rear of the Dedge Ram Van operated by your Plaintiff. 5. As a result of the cOllision, set forth above, the Plaintiff, Joann L. Lingle, sustained serious bodily injury, to wit: trauma of . her cervical spine, resulting in constant upper back pain and a decreased range of motion in the cervical area as a result of ruptured discs in the lewer cervical spine. 6. As a result of the foregoing injuries sustained by the Plaintiff, Joann L, Lingle, she has been required to undergo medical treatment, which medical services are reasonably necessary and she is under a recernrnendation by an orthopedic surgeon to have a two level anterior cervical discectomy followed by a two level anterior cervical fusion. 7. The cellision and injuries upon which within state of cause of action is based, was due to the independent and sole negligence of the Defendants, Tedd Clark silvis and Patricia Schoffstall. 8. Defendant, Todd Clark Silvis, is negligent in that: a. He did eperate the vehicle in a wreckless manner under the circumstances; -2- b. He failed to have the vehicle under proper and adequate control at the time of the accident; c. He operated the vehicle and failed to take proper precaution to insure that he had a safe, clear distance in which to stop to avoid colliding with the vehicle immediately behind the Plaintiff's vehicle; d. He failed to eperate the vehicle in such a manner that would enable him to avoid the vehicle immediately in front of him and immediately behind the vehicle of the Plaintiff; e. He did operate his vehicle without due regard to the safety and position of Plaintiff herein, at the point aforesaid. 9. Defendant, Patricia Schoffstall, was negligent in that: a. She entrusted her vehicle to Defendant, Todd Clark silvis, knowing of the reckless manner in which he would operate said vehicle; b. She failed te take adequate safeguard or steps to insure that said vehicle weuld be operated safely; c. She allowed her vehicle to be operated without due regard for the safety and position of the Plaintiff herein, at the point aforesaid. 10. Plaintiff, Jeann L. Lingle, avers as a result of the injuries sustained as set forth abeve, she will continue to suffer from the chronic cervical pain and require future medical care for which she will incur additional medical expenses in the future. 11. As a result of foregoing injuries, Plaintiff, Joann L. -3- Lingle, has been unable to work at her position of employment as owner of the Flower Pot Beutique for which she has suffered a loss of wages that she has hud to pay other employees. Plaintiff is advised and therefore avers that she has suffered and will suffer work loss in the future in excess of the allowable work loss benefits provided under Pennsylvania Law and that her earning capacity has been disminished as a result of the foregoing injuries. 12. As a result ef the foregoing injuries, plaintiff, Joann L. Lingle, is experiencing and continues to experience severe restriction of certain physical activities and expects that in the future, this restriction will cause her difficulty in pursuit of her livelihoed and the hebbies and activities formerly enjoyed by her. 13. By reason of the injuries sustained by the Plaintiff, Joann L. Lingle, as set forth above, she has undergone great physical and mental pain and sUffering and is advised, and therefore, avers that she will undergo great physical and mental pain and suffering in the future. 14. By reason of the injuries sustained by the Plaintiff, Joann L. Lingle, has set forth above, she has been partially disabled from time to time and avers that she will be partially disabled in the future. WHEREFORE, plaintiff, Joann L. Lingle, requests that judgment be entered in her favor against the Defendants Todd Clark Silvis and Patricia Schoffstall jointly and severally for amount in excess of twenty thousand ($20,000) dollars plus the cost of this action. -4- COUNT NO. 2 ABNER O. LINGLE V. TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL 15. paragraphs one (1) through fourteen (14) of Count One of this Complaint are incorporated herein by reference. 16. Abner o. Lingle, the husband of the Plaintiff, Joann L. Lingle, is an adult individual who resides at 2 Sara Street, Middletown, Dauphin Ceunty, Pennsylvania 17057. 17. As a result of the injuries to the Plaintiff, Joann L. Lingle as set forth above, plaintiff, Abner o. Lingle, has been deprived of the goed cempany and companionship of his wife, and is advised, and therefore avers, that he will be deprived of that good company and companionship in the future. WHEREFORE, Plaintiff, Abner o. Lingle, requests that judgment be entered in his favor and against the Defendants, Todd Clark silvis and Patricia Schoffstall, jointly and severally for amount in excess of twenty thousand ($20,000) dollars. PANNEBAKER AND JONES, P.C. Attorneys for Plaintiff By: ~~~ Peter R. He n nger, ., Esquire I. D. #44873 4000 Vine Street Middletown, PA 17057 Telephone: 717-944-1333 -5- JOANN L. LINGLE and ABNER O. LINGLE, Her Husband, Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : v. NO. 94-7010 CIVIL TERM CIVIL ACTION - LAW TODD CLARK SILVIS and PATRICIA SCHOFFSTALL, Defendants PLAINTIFF'S ANSWER TO NEW HATTER 1. The averment in paragraph 18 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent a response is required, Plaintiff specifically denies that her claims are barred by the applicable Statute Of Limitations and proof to the centrary is demanded at trial. 2. The averment in paragraph 19 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent a response is required, Plaintiff specifically denies that her damages should be reduced or barred by the Pennsylvania Motor Vehicle Financial Responsibility Act and preef to the contrary is demanded at trial. 3. The averment in paragraph 20 of Defendants' New Matter states a conclusion ef law to which no response is required. To the extent a response is required, Plaintiff specifically denies that her injuries and damages were not caused by acts or omissions ef third parties other than Defendants and proof to the contrary is demanded at trial. 4. The averment in paragraph 21 of Defendants' New Matter states a conclusion of law to which ne response is required. -1- To tho extent a response is required, Plaintiff specifically denies that her injuries and damages may have been pre-existing either in whole or in part and proof to the contrary is demanded at trial. 5. The averment in paragraph 22 of Defendants' New Hattsr states a conclusion of law to which no response is required. To the extent a response is required, Plaintiff specifically denies that her claims are barred by the Comparative Negligence Act or that there was any contributory negligence on her part by either failing to pay attention to traffic approaching from the rear or by failing to take the appropriate evasive maneuvers in an attempt to avoid the impact and preof to the contrary is demanded at trial. WHEREFORE, Plaintiffs' Joann L. Lingle and Abner O. Lingle, her husband request that the New Matter of the Defendants be dismissed and that judgment be entered in favor of the Plaintiff. Respectfully submitted, PANNEBAKER AND JONES, P.C. Attorneys For Plaintiffs By: ~if? ) L~~ Peter R. H~~ger, Jr., Esquire LD. #44873 4000 Vine Street Middletown, PA 17057 Telephone: 717-944-1333 PRH:jmp LINGLE-NEW #13328 -2- I M ~ - .. ..:r i3;;~ :r:: u'" .1. 0.. ~;J ~ .~~tn N S_~ i!J w ffifu ~ Ul . ~ Ln 5 I <n U . .. . V J ....1 0 ~~ljl !lp: ~lijJ n. ~ . 'Ui[ . 'i lQQ5't>y-- \ t"':t,~'}i.' '".~~ .. , " , ,'.." . Du "~IJ .-:r e)(;,/\.i.(TI \ f ~qLlI'1 C PC~(:.r'" C& V'vu) I leA IC; \ /. c I 1 I N (x/l1 hc.41-r SA e0/- fbv"'lIJU'C) I {),1. /7/10 . .. ,".' I. ..:~ ..". ' ..... (. ,\ \, I .' '. , I \~\ , .' ~ -. --' , I \. '.. \th't:'f>\: ~.;-... .. , .. I , f .. I ~ PC1t:', c.. rlennLf1cJer) Jf, ) E~Ct}.(I(~ (Je( n I\..k bel IL.e r t J Ct\SL$ r, C . ) I 1'1 UOO V i!\..Q S/ie0t /\.,\ I clOI eruv\...~"" I P/l /7057 -~.,., .. ~'-"" ,. .... ,',~":.,."'", i. . I ) , .. \ , ." ~ ----- JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-7010 CIVIL TERM TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL, Defendants PLAINTI~~S' RESPONSE TO DEF~HDANTS' MOTION TO FILE A DEMAND FOR JURY TRIAL AND NOW, come the Plaintiffs, Joann L. Lingle and Abner O. Lingle, by and through their atterneys, Pannebaker and Jones, P.C., and respond te the Defendants' Metion as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that plaintiffs alleged certain personal injuries as a result of this accident. After reasenable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to whether or not in Defense Counsel's practice, plaintiffs routinely requests jury trials in such cases, especially since this Plaintiffs' counsel does not routinely request jury trials in such cases. Preof to the contrary is demanded. J. Denied. After reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph J of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. By way of further answer, Plaintiffs aver that the fact that the counsel for Defendants did not notice that the caption failed to include a request for a jury trial and that defense counsel's alleged inadvertent failure to include a request for jury trial that time has any bearing on the statutory and case law in this matter since the provisions under Pa, R.C.P. 1007.1 and the cases addressing that section do not allow any inadvertence as a defense to the waiver of the right te request a jury trial. Proof to the centrary is demanded. 4. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as te the truth of the averments in paragraph 4 of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. 5. Admi tted. 6. Admitted in part and denied in part. It is admitted that on or about September 7, 1995 Plaintiffs' counsel requested this matter be listed for a Non-JUry Trial in accordance with the plaadings. Plaintiffs' specifically deny that Defendants' ceunsel did not realize that a Non-JUry trial had been requested at that time. By way ef further response, Plaintiffs aver that Defendants failed to raise this issue until Defendants' counsel wrote a letter dated October 25, 1995 to Plaintiffs' counsel, a cepy of which has been attached to Defendants' Motion and marked Exhibit "A". Proof to the contrary is demanded. 7. Denied. After reasonable investigation, Plaintiffs are without knewledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of Defendants' Motion which averments are accordingly denied. By way ef further response, Plaintiffs aver that Defendants' alleged intention te wait until a Judge had been assigned to the case, constitutes a deliberate intent to delay bringing this matter to the attentien of the Ceurt which action should not be condoned by the granting of Defendant's Metion. Proof to the contrary is demanded. 8, Admitted. 9. Admitted. 10. Admitted. 11. Neither admitted ner denied, it is averred that the Censtitution speaks for itself. 12. Neither admitted nor denied, it is averred that the Pennsylvania Rules of civil Procedure speak for themselves. 13. Neither admitted nor Denied, it averred that the Pennsylvania RUles of civil Procedure speak for themselves. 14. Neither admitted nor Denied, it averred that the Pennsylvania Rules of civil Precedure speak for themselves. 15. Denied. The averments contained in paragraph 15 constitute legal conc1usiens er statements of law to which no response is required. Te the extent a response is required, it is averred that Recht v. citv of Pittsburqh, which the Defendant cites for support, is not controlling in this case and is distinguishable based en the facts of the decision; therefore, Recht lacks value as precedent here. Proof te the contrary is demanded. By way of further answer, your Plaintiffs direct this Court to the holding of the superier Court in Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa, Super, 275, ____, 556 A.2d 904, 906 (1989) where the court stated "this is not to imply that full compliance with the Rules of Procedure is not required or that failure to do so is without peril." ~. And also to case of E.J. MacAleer and Co.. Inc. v. Iceland Products. Inc., 475 Pa. 610, , 381 A.2d 441, 444 (1977) where the Court stated "we have intentionally avoided a discussion of the reasen Plaintiff assigns for net filing exceptions within the mandate of Rule 1038(d). We have done so fer the simple reason that if inadvertence of counsel were a valid reason for disregarding the time limitation rules of our Supreme Court, then they might as well not have any rules at alL" I.l;l. 16. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 16 of Defendants' Motion which averments are accordingly denied. By way of further response, it is averred that inadvertence or a lack of intent to waive the right to a jury trial on the part ef the Defendants does not constitute goed cause to circumvent the Rules. Proof to the contrary is demanded. 17. Denied. It is specifically denied that rescheduling this case for trial by Jury will not unduly burden this Court. By way of further response, it is averred that rescheduling this case for a Jury trial will place an undue burden on the Court by creating an additienal need for jurors, by lengthening the trial process due to jury selection and determination of matters JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-7010 CIVIL TERM TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL, Defendants PLAINTIrrS' RESPONSE TO DErENDANTS' MOTION TO rILE A DEMAND rOR JURY TRIAL AND NOW, come the Plaintiffs, Joann L. Lingle and Abner O. Lingle, by and threugh their attorneys, Pannebaker and Jones, P.C., and respond te the Defendants' ~otion as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that Plaintiffs alleged certain personal injuries as a result of this accident. After reasonable investigation, Plaintiffs are without knowledge or informatien sufficient to form a belief as to whether or not in Defense Ceunsel's practice, plaintiffs routinely requests jury trials in such cases, especially since this Plaintiffs' ceunsel dees not reutinely request jury trials in such cases. Proef to the contrary is demanded. 3. Denied. After reasonable investigation, Plaintiffs are wit.hout knewledge or information sufficient to form a belief as to the truth of the averments in paragx'aph 3 of Defendants' Motion which averments are accordingly denied. Proof te the contrary is demanded. By way of further answer, Plaintiffs aver that the fact that the counsel for Defendants did not notice that the caption failed to include a request for a jury trial and that defense counsel's alleged inadvertent failure to include a request for jury trial that time has any bearing on the statutory and case law in this matter since the provisiens under Pa, R.C.P. 1007.1 and the cases addressing that section do not allow any inadvertence as a defense to the waiver of the right to request a jury trial. Proof to the contrary is demanded. 4. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 4 ef Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that on er about September 7, 1995 Plaintiffs' counsel requested this matter be listed for a Non-Jury Trial in accordance with the pleadings. Plaintiffs' specifically deny that Defendants' counsel did not realize that a Non-Jury trial had been requested at that time. By way of further response, Plaintiffs aver that Defendants failed to raise this issue until Defendants' counsel wrote a letter dated October 25, 1995 to Plaintiffs' counsel, a copy of which has been attached to Defendants' Motion and marked Exhibit "A". Proef to the contrary is demanded. 7. Denied. After reasonable investigation, Plaintiffs are witheut knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of Defendants' Motion which averments are accordingly denied. By way of further response, Plaintiffs aver that Defendants' alleged intention to wait until a Judge had been assigned to the case, constitutes a deliberate intent to delay bringing this matter to the attention of the Court which action sheuld not be condoned by the granting of Defendant's Motion. Proof to the contrary is demanded. B. Admitted. 9. Admitted. 10. Admitted. 11. Neither admitted nor denied, it is averred that the Constitution speaks for itself. 12. Neither admitted nor denied, it is averred that the Pennsylvania Rules of civil Procedure speak for themselves. 13. Neither admitted ner Denied, it averred that the Pennsylvania Rules of civil Procedure speak for themselves. 14. Neither admitted nor Denied, it averred that the Pennsylvania Rules of civil Procedure speak for themselves. 15. Denied. The averments contained in paragraph 15 constitute legal conclusions or statements of law to which no response is required. To the extent a response is required, it is averred that Recht v. citv of Pittsburqh, which the Defendant cites for support, is not controlling in this case and is distinguishable based on the facts of the decision; therefore, Recht lacks value as precedent here. Proof to the contrary is demanded. By way of further answer, your Plaintiffs direct this Court to the hOlding of the Superior Court in Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa. Super, 275, ____, 556 A.2d 904, 906 (1989) where the court stated "this is not to imply that full compliance with the Rules of Procedure is not required or that failure to de so is without peril." 1!;l. And also te case of E.J. MacAleer and Co.. Inc. v. Iceland Products. Inc., 475 Pa, 610, , 381 A.2d 441, 444 (1977) where the Court stated "we have intentionally avoided a discussion of the reason Plaintiff assigns for not filing exceptions within the mandate of Rule 1038(d). We have dene so for the simple reason that if inadvertence of ceunsel were a valid reasen for disregarding the time limitation rules of our Supreme Court, then they might as well not have any rules at all." l.!;l. 16. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 16 ef Defendants' Motion which averments are accordingly denied. By way of further response, it is averred that inadvertence or a lack of intent to waive the right to a jury trial en the part of the Defendants does not constitute good cause to circumvent the Rules. Proof to the contrary is demanded. 17. Denied. It is specifically denied that rescheduling this case for trial by Jury will net unduly burden this Court. By way of further response, it is averred that rescheduling this case for a Jury trial will place an undue burden on the Court by creating an additional need for jurors, by lengthening the trial process due to jury selectien and determination of matters JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-7010 CIVIL TERM TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL, Defendants PLAINTIPPS' RESPONSE TO DEPENDANTS' KOTION TO PILE A DEMAND POR JURY TRIAL AND NOW, come the Plaintiffs, Joann L. Lingle and Abner O. Lingle, by and through their attorneys, Pannebaker and Jones, P.C., and respend to the Defendants' Hotien as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that Plaintiffs alleged certain persenal injuries as a result of this accident. After reasonable investigation, Plaintiffs are without knowledge er infermation sufficient to form a belief as to whether or not in Defense Counsel's practice, plaintiffs routinely requests jury trials in such cases, especially since this Plaintiffs' counsel dees not routinely request jury trials in such cases. Proef to the contrary is demanded. 3. Denied. After reasonable investigation, Plaintiffs are witheut knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 3 of Defendants' Hotion which averments are accordingly denied. Proof to the contrary is demanded. By way of further answer, Plaintiffs aver that the fact that the ceunsel for Defendants did not notice that the caption failed te include a request for a jury trial and that defense counsel's alleged inadvertent failure to include a request f.er jury trial that time has any bearing on the statutory and case law in this matter since the previsions under Pa, R.C.P. 1007.1 and the cases addressing that section do not allow any inadvertence as a defense to the waiver of the right to request a jury trial. Proof to the contrary is demanded. 4. Denied. After reasonable investigation, Plaintiffs are without knewledge or information sufficient to form a belief as to the truth ef the averments in paragraph 4 of Defendants' Motion which averments are accordingly denied. Proof to the contrary is demanded. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that on or about September 7, 1995 Plaintiffs' counsel requested this matter be listed for a Non-Jury Trial in accordance with the pleadings. Plaintiffs' specifically deny that Defendants' counsel did not realize that a Non-Jury trial had been requested at that time. By way of further response, Plaintiffs aver that Defendants failed to raise this issue until Defendants' counsel wrote a letter dated October 25, 1995 to Plaintiffs' counsel, a copy of which has been attached to Defendants' Motion and marked Exhibit "A". Proof to the contrary is demanded. 7. Denied. After reasenable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of Defendants' Motion which averments are accordingly denied. By way of further response, Plaintiffs aver that Defendants' alleged intention to wait until a Judge had been assigned to the case, censtitutes a deliberate intent to delay bringing this matter to the attention of the Court which action should not be condoned by the granting of Defendant's Metion. Preof to the centrary is demanded. 8. Admitted. 9. Admitted. 10. Admitted, 11. Neither admitted nor denied, it is averred that the Censtitution speaks for itself. 12. Neither admitted nor denied, it is averred that the Pennsylvania Rules of civil precedure speak for themselves. 13. Neither admitted nor Denied, it averred that the Pennsylvania Rules of civil precedure speak for themselves. 14. Neither admitted ner Denied, it averred that the Pennsylvania Rules of civil precedure speak for themselves. 15. Denied. The averments contained in paragraph 15 constitute legal conclusiens or statements of law to which no response is required. To the extent a response is required, it is averred that Recht v. citv of Pittsburqh, which the Defendant cites for support, is not controlling in this case and is distinguishable based on the facts of the decision; therefore, Recht lacks value as precedent here. Proof to the contrary is demanded. By way of further answer, your Plaintiffs direct this Court to the holding of the Superior Court in Dauohin Deposit Bank and Trust Co. v. Pifer, 383 Pa, Super, 275, , 556 A.2d 904, 906 (1989) where the court stated "this is not to imply that full compliance with the Rules of Procedure is not required or that failure to do so is without peril." M. And also to case of E.J. MacAleer and Co.. Inc. v. Iceland Products. Inc., 475 Pa, 610, , 381 A.2d 441, 444 (1977) where the Court stated "we have intentionally avoided a discussien of the reason Plaintiff assigns for not filing exceptions within the mandate of Rule 1038(d). We have done so fer the simple reason that if inadvertence of counsel were a valid reason for disregarding the time limitation rules of our supreme Court, then they might as well not have any rules at all." .I.9.. 16. Denied. After reasonable investigation, Plaintiffs are without knowledge or informatien sufficient to form a belief as to the truth of the averments centained in paragraph 16 of Defendants' Motion which averments are accordingly denied. By way of further reeponse, it is averred that inadvertence or a lack of intent to waive the right t~ a jury trial on the part of the Defendants does net constitute good cause to circumvent the Rules. Proof to the contrary is demanded. 17. Denied. It is specifically denied that rescheduling this case for trial by Jury will not unduly burden this Court. By way of further response, it is averred that rescheduling this case for a Jury trial will place an undue burden on the Court by creating an additional need for jurors, by lengthening the trial process due to jury selection and determination of matters JOANN L. LINGLE and ABNER O. I LINGLE, Her Husband, I Plaintiffs I I V. I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TODD CLARK SILVIS, : Defendant NO. 94-7010 CIVIL TERM IN REI DEFENDANT'S MOTION FOR LEAVE TO FILE A DEMAND FOR JURY TRIAL BEFORE HESS and OLER. JJ. OPINION and ORDER OF COURT Oler, J. For disposition in this negligence action for personal injuries arising out of a two-vehicle accident is Defendant's Motion for Leave To File a Demand for Jury Trial. The record includes a complaint, an answer with new matter, a reply to new matter, the motion presently at issue, Plaintiffs' answer to the motion, Defendant's "Supplemental Verification in Support of Motion for Leave To File a Demand for Jury Trial," and Plaintiffe' "Stipulation," in response to the supplemental verification. For the reasons stated in this opinion, Defendant's Motion for Leave To File a Demand for Jury Trial will be denied. STATEMENT OF FACTS Plaintiffs Joann Lingle and Abner o. Lingle couunenced the present action against Defendant Todd Clark Silvis and his mother Patricia Schoffstall, by the filing of a complaint on December 14, 1994. Ms. Schoffstall was subsequently dismissed from the case.1 Order of Court, December 27, 1995. Because only one defendant remains in the case, all references to the defense in this opinion will be in the singular rather than the plural. NO. 94-7010 CIVIL TERM An answer with new matter was filed on January 18, 1995, and the pleadings were closed with the filing of Plaintiffs' reply to new matter on February 6, 1995. This final pleading was served by mailing it to Defendant's counsel.' None of the pleadings was endorsed with a demand for jury trial, nor had a separate writing been filed containing a demand for jury trial. Seven months passed during which no writing was filed containing a demand for jury trial.' On September 11, 1995, Plaintiffs' counsel listed the case for a non-jury trial.. The case was not called for trial, and it was stricken from the trial list for the November trial term by order of court dated October 18, 1995." The case was relisted for a non-jury trial by Plaintiffs' counsel on November 1, 1995.' 2 Defendant's Supplemental Verification in Support of Motion for Leave To File a Demand for Jury Trial, Exhibit A; Plaintiffs' Response to Defendant('s] Motion To File a Demand for Jury Trial, paragraph l. The pleading was mailed on February 2, 1995, to Defendant's counsel. Id. , Certain notices of records depositions to several persons or entities, dated February 21, 1995, and a notice of oral deposition, addressed to Plaintiffs and Plaintiffs' counsel, dated April 11, 1995, did contain such a demand in the caption. See Defendant's Supplemental Verification in Support of Motion for Leave To File a Demand for Jury Trial, Exhibit B; Plaintiffs' Stipulation, paragraphs ~-4. These were not filed, however. . Praecipe for Listing Case for Trial (filed September 11, 1995) . " Order of Court, October 18, 1995 (Sheely, P.J.) . , Praecipe for Listing Case for Trial (filed November 1, 1995) . 2 NO. 94-7010 CIVIL TERM On November 15, 1995, Defendant's counsel filed for the first time a writing indicating a desire for a jury trial, in the form of Defendant's Motion for Leave To File a Demand for Jury Trial.7 The motion attributed the failure to timely demand a jury trial to inadvertence, and included an exchange of letters between Defendant's counsel and Plaintiffs' counsel dated October 25, 1995, and October 27, 1995, respectively, in which the latter declined to accede to Defendant's desire for a jury trial.. Defendant's motion for leave to file a demand for jury trial was listed for argument by Defendant's counsel on the date it was filed.' Meanwhile, the motion was forwarded to the writer of this opinion, who issued a rule to show cause upon the Plaintiffs in response to the motion. 10 An answer opposing the motion was subsequently filed by Plaintiffs.1I The answer avers, inter alia, that Plaintiffs have "reasonably relied on the scheduling of the non-jury trial and have 7 Defendant's Motion for Leave To File a Demand for Jury Trial, paragraphs 3-6 (filed November 15, 1995). . Id., Exhibits A, B. Praecipe for Listing Case for Argument (filed November 15, , 1995) . Order of Court, November 21, 1995 (Oler, J.). II Plaintiffs' Response to Defendant( 's] Motion To File a Demand for Jury Trial (filed December 11, 1995). 10 3 NO. 94-7010 CIVIL TERM hirsd and scheduled experts accordingly."" Argument was held on December 6, 1995. The parties have since filed the aforesaid "Supplemental Verification in Support of Motion for Leave To File a Demand for Jury Trial"u and "Stipulation"U to provide a more complete record for disposition of the motion. DISCUSSION Under Pennsylvania Rule of Civil Procedure 1007.1(a), it is provided as follows: In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty (20) days after service of the laot permissible pleading. The demand shall be made by endorsement on a pleading or by a eeparate writing. In upholding a trial court's refusal to grant a party's rsquest for a jury trial raised more than twenty days after service of the last permissible pleading, th~ Pennsylvania Supreme Court stated the following I The record is clear that the (Defendants'] demand for a jury trial, first asserted in their pre-trial memorandum, was made more than twenty days after the last permissible pleading and, therefore, failed to satisfy the requirements of Rule 1007.1(a). Accordingly, the lower court correctly held " Id., paragraph 18. U Defendant's Supplemental Verification in Support of Motion for Leave To File a Demand for Jury Trial (filed December 6, 1995). 14 Plaintiffs' Stipulation (filed December 11, 1995). 4 NO. 94-7010 CIVIL TERM that a jury trial had been waived. In addition, considerations of prejudice to the other side play no part in enforcing a waiver of a jury trial where the provisions of Rule 1007.1(a) have not been met. Jones v. Van Norman, 513 Pa, 572, 584, 522 A.2d 503, 509 (1987). In a carefully considered opinion in L.B. Foster Co., Inc. v. Brumfield, 12 D. & C.4th 646 (Allegheny Co. 1991), Judge Wettick of the Court of Common Pleas of Allegheny County declined to grant a defendant's motion for leave to file a demand for jury trial nunc pro tunc, where the motion was filed 25 days after service of the last permissible pleading, where the failure to timely demand a jury trial was attributed to inadvertence of counsel, and where no prejudice would have accrued to the other party from a granting of the motion. Analyzing the language of the Pennsylvania Supreme Court in Jones, supra, Judge wettick made this observation: It is significant that the Jones V. Van Norman opinion does not talk in terms of whether or not the trial judge abused his discretion. Instead, it concluded that the trial court "correctly" decided this issue. This conclusion, coupled with the provision that considerations of prejudice are not involved, indicate that the Pennsylvania Supreme Court has adopted a standard requiring at least a showing of good cause before a trial court may extend the time for requesting a jury trial. L. B. Foster Co., Inc. V. Brumfield, 12 D. & C.4th 646, 649 (Allegheny Co. 1991). on the issue of whether inadvertence of counsel would, as a general rule, represent good cause for noncompliance with a time limitation in a rule of civil procedure, the Pennsylvania Supreme Court has quoted with approval this statement: 5 ~ ..:r ~ ..:r -" s~ .. :5,.. .- 8~ O~I :c (.J~J 0- ..;. r:J~ N :.~r;-_i I o:,"~-! :r: rEi ,-, 1,1. ~j F ~ !..I.!CL ~ \0 ::5 en U JOANN L. LINGLE and ABNER O. LINGLE, her husband, Plaintiffs # 28 OLER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW IN TRESPASS (M.V.) 94-7010 CIVIL TERM TODD CLARK SILVIS, Defendant ORDER OF COURT AND NOW, this 27th day or December, 1995, upon consideration of an oral motion of Plaintiffs' counsel at a pretrial conference in which Plaintiffs were represented by Peter R. Henninger, Jr., Esquire, and Defendan~ was represented by Joseph Phillips, Esquire, standing in for Dennis J. Bonetti, Esquire, in the event that the trial in this matter is a jury trial, it shall be held during the March 1996 term of court, and Defendant's counsel is directed to relist the case for such . trial term. In the event that the case is tried nonjury, trial , . in this matter shall be held on Monday, June 10, 1996, and Friday, June 12, 1996, commencing at 9:00 a.m.; provided, that on Monday, June 10, 1996, from 12 noon to 3:30 p.m., the Court will be otherwise occupied. Counsel have been advised that the Court will make a decision within five days as to whether the case will be tried nonjury or jury. By J PETER R. HENNINGER, ESQUIRE For the Plaintiffs Court Administrator JOSEPH PHILLIPS, ESQUIRE For the Defendants 0.,_{1;"'''- -.(.~\_ ~o~-ct A'-/'< ~t;,,_ wcy ~ .:1- ~ -"" F-; II .. :s._ - :t: C.,)zi,'" i:..,):F u.. !~;d n: C'\J .;:.- 'S; , -),:') If;'I.!J -,. b-::; ~ . . liJt,] ~ t~ll1.. L,- 1.0 :3 0- c., Cl ~ M f; ..::- ~Ei .. 5~ - o~ ~ - <.)~_. 0: '.- Cl;:j ~~ N ~,:;i,:) Lt , .)2; ;. or: [I} ;;>.-. /i],a ~ "'"' !:qa.. J ~ \0 ~J en u r \ # 28 OLER JOANN L. LINGLE and ABNER O. LINGLE, her husband, Plaintitts IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW IN TRESPASS (M.V.) 94-7010 CIVIL TERM TODD CLARK SILVIS Defendant IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler on Wednesday, December 27, 1995, in the above-captioned case. Present on behalf of Plaintiffs was Peter R. Henninger, Jr., Esquire. Present on behalf of Defendant was Joseph Phillips, Esquire, standing in for Dennis J. Bonetti, Esquire, who will be trial counsel. This is a negligence action for personal injuries arising out of a motor vehicle accident on February 14, 1993. Plaintiff Joann L. Lingle's van was rear-ended on East Main Street in Shiremanstown, Cumberland County, Pennsylvania, as she waited for a car ahead of her to make a turn, by a car behind her which in turn had been hit by a car driven by Defendant silvis. Pursuant to an agreement of counsel, the Motion in Limine of Defendant Patricia Schoffstall to be dismissed from this case has been granted by separate Order of Court of even date herewith. Plaintiff Abner O. Lingle is suing for loss of consortium. Defendant mayor may not be conceding liability in this case, and by separate Order of Court of even date herewith pursuant to an agreement of counsel reached at the pretrial conference, Defendant shall advise Plaintiffs of his position on this point on or before January 9, 1996; provided, that in the event no information is given to Plaintiffs' counsel .. , in this respect, Plaintirts may deem the Defendant to be conceding liability. Pursuant to agreement of counsel, Plaintiffs shall be permitted to prove all wage loss expenses, but the trier of tact shall not award the first $5000.00 of such wage 1088 proven. In the event that this case is trisd by a jury, the jury shall be so instructed. In the event that any videotape depositions to be used at trial contain objections which need to be ruled upon by the trial judge, a copy of the transcript of such deposition(s) shall be provided to the Court at least five days prior to the commencement of the trial term with the areas of objection highlighted in the transcript, with brief memoranda of counsel in support or their respective positions regarding the objections. An issue which remains outstanding and which was argued at a recent argument court is whether the Plaintiffs should be permitted to demand a jury trial nunc pro tunc. The Court has advised counsel that it will make a determination on this issue within the next five days. In the event that this case is tried before a jury, each side, pursuant to agreement of counsel, shall have four peremptory challenges, for a total of eight. The trial is estimated to be of a duration of two days. In the event that the case is tried nonjury, by separate Order of Court, trial will b~ scheduled for Monday, June 10, 1996, and Wednesday, June 12, 1996, commencing at 9:00 a.m. It is noted that on Monday, June 10, 1996, there will be a period between 12 noon and 3:30 p.m. during which this Court is otherwise engaged. In the event that the trial is held before a ~ ..:r ~ ~ - ," .. i.~;'~ ig - -- ()::.. c... ...,;:.: ("0 ".':';! ~ N =~.t.~ "'- I _ .I., fEu I :r: i:'::;:;#' I. ~ I Lj :1" all ~: 'nO. 1-: -, ;J~ L'_ \r'I -.' 0 en U ~ -..-- JOANN L. LINGLE AND ABNER O. LINGLE, HER HUSBAND, Plaintitts IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-7010 CIVIL TERM TODD CLARK SILVIS AND PATRICIA SCHOFFSTALL, Defendants CIVIL ACTION - LAW PRETRIAL MEMORANDUM NON-JURY TRIAL STATEMENT OF FACTS I On February 14, 1993, at approximately 1:50 p.m. Joann L. Lingle was the driver of a 1989 Dodge Ram Van, Registration Plate YH6-6475 owned by her business, The Flower Pot Boutique, and was stopped eastbound on East Main Street in shiremanstown, Cumberland County, Pennsylvania at Carroll ton Alley waiting for a vehicle in front of her to make a left-hand turn. While she was stopped a vehicle driven and owned by Tanya R. srouji stopped immediately behind her, and then, suddenly, without warning, Defendant, Todd Clark Silvis, drove the 1982 Chevrolet Camaro owned by Patricia Schoffstall, in such a manner that it collided with the rear end of the vehicle of Tanya R. Srouji with such violent force that it propelled said vehicle of Tanya R. srouji into the rear of the Dodge Ram Van operated by your Plaintiff. As a result of the collision, set forth above, the Plaintiff, Joann L. Lingle, sustained serious bodily injury, to wit: trauma of the cervical spine, resulting in constant upper back pain and a decreased range of motion in the cervical spine area as a result of the ruptured discs in the lower cervical spine. As a result of the foregoing injuries sustained by Joann L. Lingle, she has been required to undergo medical treatment, which medical services are reasonably necessary and she is currently under the recommendation by Dr. Rex Herbert, an orthopedic surgeon, to have a two level anterior cervical discectomy followed by a two level anterior cervical fusion. After the accident, Mrs. Lingle was treated through the end of October, 1993 by Samuel R. smith, D.C., a chiropractor. When she had obtained, in her opinion, optimum results she consulted her family physician, Dr. William Wewer who eventually referred her to Dr. Rex A. Herbert for an orthopedic consult. On January 11, 1994, Dr Herbert initially saw Mrs. Lingle and attempted to treat her conservatively for her neck injury, however, this was unsuccessful and Dr. Herbert advised Joann to consider surgery which would involve an anterior cervical discectomy and fusion of the C5-6 and C6-7 levels which would disable her from working for a minimum of three months. As a result of her multiple injuries, Joann has been unable to work from time to time and has had to spend in excess of $14,000.00 for wages to employees to cover for the time when she has been unable to care for her own business interests. Furthermore, Joann has estimated the wage cost for her being out three months when she elects to have this surgery at $6,564.00. Furthermore, Joann's husband, Abner O. Lingle, has been deprived of the good company and companionship of his wife. DAMAGES: Joann's medical bills to date total a little less than a $1,900.00 however, the estimated costs related to surgery as recommended by Dr. Herbert bring the total estimated medical bills to $22,782.00 which does not exceed her no-fault insurance benefit of $100,000.00. Joann has had constant pain and suffering and has missed work on a regular basis and should be compensated for her pain and sUffering to date, the future pain and sUffering, loss of life's enjoyment, the disability she has which has altered her lifestyle to avoid certain activities and probably most importantly it has affected her business to the point where she has paid out in excess of $14,000.00 in additional wages to employees since February 15, 1993 and estimates a wage loss in excess of $6,500.00 when she has the surgery. This indicates a wage cost in excess of $15,000.00 above her first party benefits of $5,000.00. SUMMARY OF LEGAL ISSUES: This is a case of the failure of the Defendant to drive in a manner in which he could have stopped in the "assured cleared distant ahead" to avoid striking the vehicle clearly visible in front of him and a failure by the Defendant to slow down to avoid collision when notified by the brake lights of the Tanya Srouji. LIST OF WITNESSEa: 1. JOAnn L. Lingle 2. Abner O. Lingle, husband 3. PatrolmAn K. Shaughnessy - Police Officer, if necessary 4. Todd Clark silvis, Defendant, as on cross, if necessAry 5. Tanya srouji - driver of vehicle immediately behind Plaintiff at time of accident, if necessary 6. carolyn Lepley Hammaker, Plaintiff's employee 7. Esther Zimmerman, Plaintiff's employee 8. Samuel Smith, D.C., Plaintiff's treating chiropractor 9. Rex A. Herbert, D.O., Orthopedic Surgeon LIST OF EXHIBITS: 1. Summary of medical bills 2. Summary of medical visits 3. HRI report and other medical records 4. Wage loss summary 5. Summaries prepared by Plaintiff and employees in the course of business of time off of Plaintiff. CURRENT STATUS OF SETTLEMENT: PlAintiff's attorney, due to the ruptured disc at level C5-6 and C6-7 and the recommended anterior cervical discectomy and fusion, And the change of lifestyle by Joann L. Lingle for the rest of her life, demanded $125,000.00 on December 1, 1994. Subsequent thereto Plaintiff's learned that the limit of coverage for Defendant was $50,000.00 and have since dropped their II. STATEMENT 01<' THE BASIC FACTS AS TO DAMAGES Mrs. Lingle claims that she herniated two cervical discs as a result of the February 14, 1993, accident. At the time of the accident, Mrs. Lingle was the sole proprietor of The Flower Pot Boutique in Middletown, Pennsylvania and, in fact, was within the course and scope of her employment at the time of the accident. Mrs. Lingle has alleged work loss and a loss of earning capacity as a result of her injuries. Through discovery, it has been determined that Mrs. Lingle suffered two fractured vertebrae as a result of an automobile accident in 1965. Mrs. Lingle was also involved in another motor vehicle accident on July 20, 1991, when an ambulance in which she was a passenger, was struck broadside by a vehicle proceeding m approximately 55 m.p.h. Review of m-:dical records reveal thm Mrs. Lingle began seeing a chiropractor, Samuel R. Smith, D.C., on December 31, 1988 for an automobile accident which occurred on the same date. Her complaints included "neck pain, neck stiffness, mid back pain, shoulder soreness right and left." The records of Dr. Smith further reveal consistent treatment for neck and shoulder problems commencing July 9, 1982. Further, the records of Dr. Smith following the February 14, 1993, accident reveal a progressive recovery from any automobile related problems and, in fact, document complaints unrelated to the automobile accident. With regard to the claim 01' lost earnings/loss of earning capacity, the tax records reveal that in calcndar year 1992, the last complcte year bcforc the accident, Mrs. Lingle lost $6,884.00 in hcr business. Also, thc cost of labor in 1992 (cxcluding thc salary for Mrs. 2 ~ \D ?:; I~ to M 3<1" -I "'2 - o..:~ ~ a:: ::.... c.- ~l ..;!~ \.0 :..'[" ~ :J -,.. Q:l" ~ rr-h 1'<) r- ....: ruli -, l:5 ~ d sq 0 ~~jEi ~1111 iiijl n. 0( .. .' ,- .. DEFINITIONS 1bc Coli owing definitions m applicable to each request Cor admi~,ion and are IDcorporated by reCereuce into each request Cor ,dmi~sion. (a) 1bc term "person" as used herein, means any natural person.. parmmhlP. corporation, or other business entity and all officers. Cormer officers, directors, agel1lS. employees, attorneys and others acting or pwporting to al:t on behalC of such natural person. partnershlp, corporation or other business entity. (b) 1bc term "document" lIS used herein. means the original and all copies of any writing and any other tangible thing or date compilation in your custody, possession or control. including, but not limited to, letters. reports. agreemc:nlS. telegrams. memoranda. summaries or records of personal or telephone conversations, diaries. tape recordings. ' statistical statements, minutes or 1'ccords of meetings, minures or records of conferences. expressions or statements of policy, lists of persons attending meetings or conferences. repon and/or summAries of interviews. opinions or reports of consultalUS, reports or summaries of negotiations, brochures, pamphlets, circulars, draft of any documel1lS. revisions of drafts of any documents. and original or preliminary notes. (c) The term "communications" lIS used herein. means all statements. atlml!tSions. denials. inquiries. discussions, conversations, negotiations, agreements. conttacts. understandings. meetings. telephone conversations. letters, correspondence. notes. telegrams. telexes. advenisements. or any other form of written or verbal intercourse. 3 .. . .- .. (d) 1bc term "identify" as used with respect to dOMIl1Ietlrs means to state the date, III1lhor. addressee. type of document (e.g. leucr), to Identify ilS Iast.known cwtodian and location and the exhibit number of the document if It has been marked during the course of a court proc....ding. (e) 1bc lerm "Identify" as used with respect to non.wriucn communications means stale the dale, persons that panlcipalCd Int eh communication. type of communication (c1g1 lelcphone conversation) and substaacc of the communication. (0 1bc lerm "Identify" when used with respect to an individual. means to give the person's full name. all known aliases. prescnt and last-mown business and home address, present or the last-known lelephollC number and prescnt position or business Llfillation. (g) The lerm "Identify" when used with respect to any other person, means to give the person's official, legal and fo(maJ name aadlor the name under which the person aclS or conducts business; the address of the person's place of business, profession. commerce or home; and the idcatlty of the person's principal or chief executive officer or person who occupies a position most closely analogues to a cWef executive. (h) If you claim that the subject maUCr of a document or oral communication Is privileged. you need not set forth the substaIICC of the document or oral commwiication called for above. You shall. however. othCIWIsc "ideadt'y" such document or oral communication and shall stale each ground on wWch you claim that such document or oral communication Is privileged. 4 " ... /. L DEFENDANT'S REOUEST FOR ADMISSIONS 1. A true and correct copy of records of Donald R. Smith, D.C. (.Dr. Smith.) Is ~~,.~ u Exhibit. A.. 2. On July 9, 1982, Joana Lingle (.Mrs. Uug.lc") Initially prescmcd to Dr. Smith for aeatment. 3. On July 9, 1982, Mrs. Lingle complained of problems with her right shoulder and ann. 4. Mrs. Lingle presented to Dr. Smith for treatment on each of the dares Identified In the documCIUS "subsequent visits and fmdings.. Joana LIngle, Case No. #2436. S. On August 24. 1987, Mrs. Lingle comp1alncd of problems with her left shoulder. 6. On December 31. 1988, Mrs. Lingle wu Involved In an automobile accident and presented to Dr. Smith complaining of "neck pain. neck stiffness. mid-back pain. shoulder sorellCSS right and left. . 7. On March 30. 1992. Mrs. Lingle presented to Dr. Smith and complained that she wu sore between the shoulders and neck. 8. On Apri121, 1992. Mrs. Lingle presented to Dr. Smith and complained that the upper dorsals were sore and arms get numb. 9. On March IS. 1992. Mrs. Lingle presented to Dr. Smith and complained of problems with her neck. 5 .. .. .. 10. On May 20. 1m. Mrs. Lingle presented to Dr. Smith and complained 1IW her arms and hips ache. 11. On August 24, 1m, Mrs. Linglo presented to Dr. Smith and complained. inleT alia, that her shoulders ache. 12. On the e.,,"minatlon record of Dr. Smith which reflects dates of ~RminRdon beginning on September 16, 1m, the diagnosis of Dr. Smith was "shoulder and mid-back pain. " 13. On September 30, 1m. Mrs. Lingle presented to Dr. Smith and comp1alncd of upper dorsal and neck pain. 14. Mrs. Lingle presented to Dr. Smith for trcaID1eDt on February 19. 1993. 15. The office note of Dr. Smith for February 19, 1993 fails to include any mention of an automobile accident on February 14. 1993. 16. Mrs. Lingle did not prescnt to Dr. Smith for trcallI1Cllt cooccmiDg the automobile accident of February 14, 1993 unti1 March 3. 1993. 17. On March 3, 1993. the only restriction placed by Dr. Smith on the activities of Mrs. Lingle was that she was DOt lift over 15 pounds. 18. By March 5, 1993. Dr. Smith noted that Mrs. Lingle was much better but still sore. 19. On March 16. 1993, Mrs. Lingle complained of shoulder and neck pain and pain in the feet. 6 .. ~ 20. On March 22. 1993. Mrs. Lingle complained of low back soreness ,,,,,-,,117M to left lower lumbar area. DCCk and shoulden better. 21. On April 7, 1993, Mrs. Lingle prcscntcd to Dr. Smith and complained of pain left hip, nccIc and shoulden better. 22. Between April 2, 1993 and June 16, 1993, Mrs. Ungle did not complain of any left shoulder problems to Dr. Smith. 23. On June 21, 1993, Mrs. LIngle presented to Dr. Smith and complained of pain left scapular, mid back area. insidious onset. 24. From March 3. 1993 through June 21. 1993, Mrs. Ungle did not complain of problems with her left arm. 25. On June 30, 1993, Mrs. LIngle presented to Dr. Smith and complained that she brolcc her nose by walking inm an overhang on a porch. 26. A diagnostic chest x-ray was conducted on July 20, 1991. A true and correct copy of the report of the chest x-ray Is attached as Exhibit "B". 27. The findings on the chest x-ray of July 20, 1991, included an old compression fracwn: demonstrating mild loss ofaxla1 height in the mid dorsal spine. 28. On April 2, 1993. Mrs. Smith presented to Dr. Wewer and complained of a cough and wheezing, left greater than right. 29. A chest x-ray was performed on April 2, 1993, which revealed an area of pneumonia in the left lower lobe of the lung. 7 exhibit A .. ( VERIFICATION OF RECORDS COSTODIAN I, the 'lndersiqned, beinq duly sworn accordinq to law, depose and say that I am the dilly authorized cl18todian ot records for Samuel R. Smith, D.C., and hereby certify to the tollowinql 1. The records attached hereto are t~le and correct copies of any and all records, reports and diagnostic studies reqarding Joann L. Lingle. 2. That, includinq this verification, all records which are in my custody, have been photocopied at my oftice, in my presence, at my direction and .mder my supervision by ( DR. SAMUEL R. SMITH . 3. That .tnlesd qualified in paraqraph (51, all records prod'lced in my presence were prepared in the ordinary CO'lrse ot b'lsiness by a'lthorized personnel at or near the time ~t the act, condition or event; and 4. A caret'll search has been made by me or at. my direction for copies of the records listed above reqarding Joann L. Linqle and the records prodllced herweith constitute and are the trlle records of Samuel R. Smith, D.C.. 5. Additional Comments: NONE (Be sure to enter the word "None" if there are none.) \ ,/~ (' ., . SMITH CHIROPRAcrJC CENTER Olt. SAMUEL R. SMITH IN WeOl Muil, SU.."I SIIII.II MklJk:lUwn, I'A 1111,\"/ '('.!.'ph"".: 111'11 ').l.l.IUM Febru4ry 8, 1994 Nationwide Insurance Box 2655 lIarrlsburg, Pa, 17105-9971 ATTN: Marla Brodnlck RE: P4tlent: J04nne L1nyle D/A: 02/14/93 CllUm -. ,Sg'37. C. 1.57- '75/- 024/'13 ( De4r Ms. Brodnlck, As per your request d4ted 10/27/93 and per our telephone conversation on 02/08/94, please find the following narrative report on the condll:lon of my patient, Joanne Lingle. Mrs. LIngle entered my office on 03/03/93. complaining of Injlll'le~ re- portedly Incurred from an automobile accident on 02/14/93. All Examination and radiographic examination were performed. This patient Is female, 56 years of age and Is self employed as a Florist. The patient stated that an February 14, 1993 she was the dl'i vel" of an auto- moblle that was Involved In a colllslon with another automobile. She st.Ited that she was traveling east when she was struck from behind. She stated that she was not rendered unconscious. She states that the pollcl! were no- tified. . Mrs. L1ngles description of the accident was as follows: "I stoPlled for a vehicle making a left turn Into a laundranat, the second cal' behind me did not stop In time and hit the car behind me and they In turn- hi t my V311". Following are the results of my original examination: The patient's complaints consisted of headaches, neck pain, neck :;tlffness, back pain and tingling and numbness Into her fingers. The patient's bleeps reflexes were + 1 on the right and + 2 on thl! left. The triceps reflexes were + 1 on the right and + 2 on the left. The puLl- ent was able to walk on her toes, heels, and heel to toe wlthuut ,my dlf- flcul ty. The orthopedic examination had the following results: The patient had 1I posatlve Derlfleld Cervical Test on the right Indicating possible cervi- cal subluxatlons. The Foramlnal Compression Maneuver per'forml!d all thl:; patient elicited Increased pain down the right and left .Inns Indlr.atlng a nerve root lesion. Bilateral Shoulder Depression or dlstra':tloll man- Joanne Lingle February 8. 1994 Page Two euvers, revealed an Increase In cervical spine pain on the rllJht IInll left. This suggests adhesions or Injury to the soft tissue adjacent to the nerve root. The Sacral Test was posatlve on the right Indicating possible pos- terior rotation of the sacrum on the right. Cervical motion as measured by a goniometer was as follows: CERV ICAL MOVEMENT FLEXION EXTENSION LAT.R.FLEX. LAT.L.FLEX. R .ROTATION L.ROTATION INITIAL NORMAL 37" 65" 45" 45" liO" 60" 65" 50" 40" 40. 55" 55" c. ORIGINAL OIAGNOSIS: 847.0 Sprain/Strain of the ligaments and musculature of the car- vlcal spine. . 739.0 Segmental Dysfunction C Subluxation) C-2 & C-4 847.1 Sprain/Strain of the l1,gamE:nts and musculature of the thor,Jcte region. 739.2 Segmental Dysfunction ( Subluxation) T-5 Intervertebral angles as'measured en radiographs of the cervical ',plne were as follows . .. .-....---.- . ....- -_._- ,;:~ .- .. -.-----. ....... II lnlllrvert. Angles Motion IlIUI~I'UIII - NeUE NnUl _. .... L. I;<lelt Flexion 1\ x llllllllllll 1"lox. Ext. Ex t. - -- - - - .- . 40 0 1 1 - 00/01 ~ - - -. .- - 80 5 3 8 / 70 2 5 7 01/02 , \ 02/C3 , - - . -- - _. .... .. Ou 4 4 8 j - , C3/C4 -- J - - -, - - .._. .. ,U 4 10 14 . ", .--. C4/C5 -- - -;.' -- --. .... . 0 2 2 4 .- --- Cll/CO -~ ... '- . 80 6 -2 4 I, CO/C7 25 2U 15 10 5 (J ,. 10 15 ~1I :!. .1 ,- -...- -- h'IUl\'ull . AIII~lu I,'hue.. Nutlt. I~K .. --. ...--- -- II: 650 650 6 - ---. .- ,.-- :1 860 810 7 '.~ 840 820 7 ..............-.-..-.- ::1 880 840 8 :l 950 910 8 ..... --.-.- :!J 920 900 88 .......-..-.- t. :11 820 760 7 ..." .......- : '/ 5 .....-..-- --- Joann Lingle February B, 1994 Page Three (, Intervertebral angle measurements Indicate hyponobllltles at th~ OCC/Cl. C2/C3, CS/C6 levels while In flexion and at the OCC/Cl, Ct/CZ. CS/C6, and C6/C7 levels while In extension. Hypermoblllty Is noted at the C4/CS level while In extension. Subsequent Interim examinations were performed on this put lent on 06/02/93. 09/13/93. and 01/10/94. Interim Examination 06/0Z/93: The patient's complaints consisted of J:laln In tht! ~huulut!"s, Ildin dcross thl! mid back. occasslonal tlngllng and numbness across the tops of her shoulders. The patient's Biceps reflexes were active and equal at + 2. the Trlcep~ reflexes were active and equal at + 1. The patient was able to walk on her toes and heels and heel to toe without difficulty. The following orthopedic tests were positive: Oerlfleld Cervical Te~t on the right, Sacral Test on the right, Foramina Compression Te~t on, the right. and Shoulder Depressor Test on the right. Cervical motion as measured by a goniometer will be compared later In this report . Interim Examination 09/13/93: The patient's complaints consisted of pain and soreness across the shou Iders. and neck soreness depending on the amount of use of her arms. Joann also had some complaints of pain Into her left foot. Als" Mrs. Lingle had an aggrevatlon of her condl tlon on 06/30/93 when she stated that she broke her nose by walking Into an overhang on a pOI'ch. The patient I s biceps reflexes were + Z on the left and + 1 on the right, the Triceps reflexes were + 2 on the left. and + 1 on the right. Because Mrs. Lingle had been complaining of left foot pain Patellar and Achilles reflexes were taken with the Patellar reflexes being active and e'lual ;It + 2 and the Achilles reflexes being active and equal at + 2. The following orthopedic tests were positive: Derlfleld Cer'vlcal Test on the right and left, Sacral Test on the right. Foramina Compression Tost on the left. Shoulder Depressor Test on the left. Cervical motion to be discussed after most recent examlnatlun. ( Joann Lingle February 8, 1994 Page Four Interim Examination 01/10/94: From September until this examination, the patient has continuously complained of pain in tho left shoulder and ann, neck pain on the left side and pain into the left scapular area. The patient's Bleeps reflexes were + 2 on the left and ~ 1 on the right. Triceps reflexes were + 2 on the left and + I on the right. Thil patient was able to walk on her toes, heels and heel to toe without any diffi- culty. The following orthopedic tests were posative: oerifield Cervical Test on the right and left, Sacral Test on the right, Foeamina COInpl'llss Ion Test on the left, and Shoulder Depressor Test on the left. Cervical Motion as measured by a goniometer with each interim examination was as fa Ilows. CERVICAL IN lTIAl INTERIM INTERIM INTERIM NORMAL MOVEMENT EXAM EXAM *1 EXAM *2 EXAM *3 t FLEXION 370 450 460 400 650 EXTENSION 650 . 570 550 580 50" LAT.R.FlEX. 450 390 370 42" 400 lAT .L.FlEX. 450 390 440 46" 4{)O R .ROTATIoN 600 400 540 530 55" L.RoTATION 600 420 520 600 550 On 01/10/94, Mrs. lingle was seen In my office after being on a 10 day vacation. She stated to me at this time that she had been pain free for the entire vacation. However as soon as she returned to her job, she once again became symptomatic In her neck and left shoulder. Since Mrs. lingle is self employed, this situation becomes very difficult for her. At this paint In time I reccommended to Mrs. Lingle that she should be evaluated by an Orthopedic specialist by the name of Dr. Rex Herbert. After being seen by Dr. Herbert, Mrs. Lingle was told that she should take physical therapy for her neck and shoulder. After several treat- ments at Dr. Herbert's office, Mrs. lingle stated to me that her con- di tion had become worse. She also stated that traction of the cervical spine done in Dr. Herbert's office Increased her pain. UPDATED DIAGNOSIS AS OF 02/08/94: , \ '. The current diagnosis in this case is as follows: 739.0 Segmental Dysfunction ( Subluxation ) C-2 & C-4 739.2 Segmental Dysfunction ( Subluxation) T-S '.4T' . . ( -- SMITH CHIROPRACTIC CENTER . OK. SAMUEL R. SMITH ~'/'JWIllllM.ill:lII"" SuillllJ M.~lIuh'''". I'^ 171.S7 1.k."h,01ll: (117) 94+l111U-l January 25. 1994 Northwest National/Statesman 2545 Farmers Drive Suite 300 Columbus. Ohio 43218.2087 ATTN: Linda Propster RE: Patient: JoAnn Lingle Pollcyl/: CC081202 (, Dear Ms. Propster. An Interim examination was performed on the above named patient on 01/10/94. with the following results. Mrs. Lingle's current complaints consist of pain In the left side of her neck with radiating pains Into her left upper thoracic region an~ Into the left upper ann. . The patient was able to walk on her toes, heels and heel to toe without any difficulty. Her Bleeps reflexes were + 2 on the left and + 1 on the right. The Trlcops reflexes were + 2 on the left and + 1 on the right. The following orthopedic tests were posatlve: Derlfleld Cervical Test on the right and left, Sacral Test on the right. Foramina Compression Test on the left. and Shoulder Depressor Test on the left. Soto lIa11s Test was negative on the right and left. Cervical motion as measured by a goniometer was as follows: CERVICAL INITIAL EXAM 12 EXAM 113 CURRENT NORMAL MOVEMENT EXAM FLEXION 370 450 460 400 650 EXTENSION 650 570 550 580 500 LAT.R .FLEX. 450 390 370 420 400 LAT.L.FLEX. 450 390 440 460 400 R.ROTATlON 600 400 540 530 550 L .ROTATION 600 420 520 600 550 DIAGNOSIS: The current diagnosis continues to stand as previous. 739.0 Segmental Dysfunction ( Subluxation I C-2 & C-4 739.2 Segmental Dysfunction (Subluxation T-5 ( "INAL ANALYSIS I .! .. j i .. ..; . .. . . .c .. .. j "\ 0.. .... ..., .... JC . S , 7 lD - ! 2 J . S , 7 . , 10 11 12 IL 2 J 4 S - m - . 1 - - V - - 1 l ., 2436 PATIENTS PROGRESS REPORT JOANN . LINGLE . ..... NO. Ml8l'lI - __ 2 SARA ST< MIDDlETOWN>PA. 1705~ AUTO ACCIDENT Dlll 11l. NO. 939-6938 _ wt llCCUI'ATDI _~IIX F INITloII. -.. DAlI WC~'l&.ITD - ~ I ~~ -e:,:~ I-I ml'b (-"'3L c.''l3~ 4. CI""'"' -~"j""'- .-<. ,-:. 5. r:/ s 8. T-IO ,..- 5"' ,. I :;...;t . tnl") c.. 3L c.-'l.~t( -fo,4A ,vi . St. C-l.a< ;l. 1(. '1.'1 7. 8. ~'- . ~~ -10 ,..- C.'l.~tf I I I I 9. I 0.1 1.1 12.1 .. " PATIarrS PROGRESS REPORT JOANN LINGi.E 12436 . CAIIICI, NT1IIf1'I ..- _.2 SARA STREET MIDDLETOWN,PA. .. . 'Tll.NO. 939-6938 _IIMD I'f .. : . ...~~., OATI 03-03-93 ....NOP'...m&1 ...._ AUTO ACCIDENT CCCUl'ATIOH Fl OR 1ST "1'1 03-03-93 -2L- F 1'" " , ~Dl~'" . ..i !.' ';.~ :'~.:'~-;: ".. ~;'~l: ':::;~';-I"~ . ....;.,.~>:.~ 3/,1"3 I.'PIHAL.'-' .:;1'.' . ~A.~YSIS .-'.. GCJII ,:I.e,< 0{ ~'lCT A.I, l,4tf' '~"-::ll. ,. :11,":;.J";~13/3/"" '. ,". .. . . If " - · "2 . Ii ,'; . 1 T''' ", ~ _ _ M'L -. L M.";._ ~ . t;~ ~ 0.. .; .l:~.: . :. ~ ..'. . ,.;.;~.", '] 3 ." 'VV7. '-' " ~'C;;: 'At ';"40 . ;'..",....,- 'f' ?~. '. Ai' :3; -q~ th. . - / S' A...o . r:!S-:2C .::~..' -te . -S- -I ~ :: ~~.:J S" lllll ' . .. 41 7 :~. .10 .. "1" :4. ..2 T, f) T-I ~.. 1& .....' of A./' t l Ar /)JIw ,J.-I'AY.! ~-'. IV" c . '1'3 ( C . Z ~ ~. t) C. (j l C - 'La" /l mP/J C .f3( C .Hrlr ,. __..:.. - p a.....:. .-..: r-~ 7--, /1'J f1 i) C~ G( C .t 11 /{ ft f&,~~( u ';n .. 1- ~l:i .,1 Ii! .. . ~. "8. S ~ .,;jl(. , .,,'. . 'L tU'( ",05 .. pt ;;d. ./ ~:f ~3 ~ T-S' T-I /YJ f"/j C -'/"3 ( (-,3';1' . ' 10~ - S{ C-l.':! 11- I . at C.t-:T/t .' ,,~?t' p--.. - (,. . .",' -.' 12. ,".,;..:-: ~.~,... pb c-yal " -- ,-5 C -2,:1 n : I I '/1' SMITH CHIROPRACTIC CENTER :( DR. SAMUEL K. SMITH 100 E...a DlUWlI SIrOlOlt MkJUk.1OWll. l'A 171157 Tvk,lhonot: 17l7l 9<l4-00U4 June 9, 1993 Nothwester National/Statesman P.O. Box 1B2087 Columbus, Ohio 4321B-2087 RE: Patient: JoAnn Lingle Po Ii cy" CC081202 c, Dear Sirs: An Interim examination was performed on the above named patient on 06/02/93, with the following results. The patient's current complaints are pain across the shoulders and In the mid back, occassional tingling an~ numbness on the tops of her shoulders. The neurologic examination revealed the Bleeps reflexes + 2 on the left and right, Triceps reflexes at + 1 on the right and left. The patient W4S able to walk on her toes and heels, and heel to toe without any' difficulty. . Cervical range of motion as measured by a goniometer was as follow$. Cervical Motion Initial Current Nanna I FLEX. 370 450 650 EXT. 650 570 500 LAT.R.FLEX. 450 390 400 LAT .L.FLEX. 450 390 400 R.ROT. 600 400 550 L.ROT. 600 420 550 The following orthopedic tests were posative: Derlfleld Cervical Test on the right. Sacral Test on the right, Foramina Compression Test on the right, Shoulder Depressor Test on the right. DIAGNOSIS: 847.0 Sprain/Strain cervical ligaments & muscles 739.0 Segmental Dysfunction ( Subluxation ) C-2 & C-4 847.1 Sprain/Strain Dorsal muscles & ligaments 739.2 Segmental Dysfunction ( Subluxation) T-5 ....n1 Compl..n,a: . :t:.'.;;;;~::~~~~--:,i.:~.~. .s4..t-~1 _ ~--..-. . ...0 .,!r..~., .\lJ-'<o:;:~. d'. .... ..~,.,.. ......,L " .'.'" '..-\...r"..~,". .. _ , ~ _.... ~( ":--:' A- . .:.a~ - ..... ',' --""- -, .' . 1 ,,:l~':Z:dSf~~~ ;1 *:~ 1~t-ld' , ~'.. ;{.~ 'VI;.' _.. . J. ..." ~t~'f'l"" ...;.l'.I...~, '~...;.,.' - '. ':!i~"~" '.l" ~..... -...,' ~." ", ~, " ...:,' .. ...... '~' 'I . l' .. "...-fi.' , ~ . .... .. ..,...,....~!-~ I '.f.,.~~)~...:~Li~*i::;;.:;..~ Dvn.inom.f;;. Q;tTe'1r . . .L .~.! ~':.~ :r~ 'f'J:--;\"?i~" '.., .~..~"...~t.m' .~.,,.,. I ;'~ ;j~.:. ~~~ . ~flL~\tl': . '.. ....... . .. ',~.. ':.L~-r'.......\2. ,,' r . 0" ""~ ...... .. _ ; . .:"...~ ~..:':"~'3. 4. .~-'. A"90 ..,/ . I , :~~:ro,....,~ {. MI~ING OOCTOR:. ~.Ii.'~#r..... ';- . \ ,. ....... . , ." ....." ..... .'to' . . -.. ... ' .. ....: " 4 Wtl;n. ...... ... ,., " .......;. ~:; "," . .........t . . Inlri'" Pan R L R ..... .. .... .. '~;'~3:='~~'~~:.':'.: I~T ~+ I I ,:1. huller Refle.,. . _ , , ;: 8. 'Achllln'Refle. ; . - \: . . . ~~~;. Prone . .~:?,. Deri!1eid Leg'Check , ,',' A) D. Pos. . ';... B) Cerv; Pos. : C) A.S.L. . D) Sac. Pos. Nach1a.s/Ely . . ........ .... . '::~:F;. . Side' . .. . , . Lewin-OaenSIen 'Comp. oC n1ac Crest 'Suplne . . Laseque's Test '.Braggard's .Test. Goldthwaite Test. Leg Lowering Test 'Pabere Patrick Test I' :Jugular Compression I . Soto Hall Test ~ . .' ,'J/o",Slttinlf ~'.1>Poramina Compression ; 1. '1oulder Depressor ~~~Standinlr il.. Straight Leg Raiser .~.?"Adam's Sign ::~ Kemp's Sign , ~ Advancement Test ;) Trendelenberg ::~:- Lt.& RtN4.44 Lt.~ Rt.~ Lt. Rt. Lt.Nij: Rt.1Sr: Lt.______ Rt.______ Lt. Rt. Lt.------ Rt.== Lt. Rt. Lt. ------ R t.------ Lt.------ Rt.------ Lt.------ Rt.== Lt.------ Rt. Lt. ------ R t. r1r::" Lt.~ Rt~~ Lt.~ Rt.POJ Lt'Ab:j- Rt.& Lt. Rt. Lt.------ Rt.- Lt. ------ R t.------ Lt.- Rt.- Lt.-Rt.- -- CASE.: ,J ~ '1J.' - '3. AGE: .' - EXAMINATION.: ~ ~ DATE: I./r./':I . Loc.llutlon ". . I _- I --J ,. P - P..n 'N - Numb $- Spum T - Tond., H 7' Hypoellhelll .' Iftitwl: "....: 'rotr ...: .n Not... 65. 60" 40" 40. 55. ~5" l,wl"': CERVICAL MOVEMENT FI..ion e. ,,"sion Ul. R, Flax lol. L.ft Flu Rut.lilll' RiQhI Rut.IIIN' Lef' OORSOLUMBAR MOVEMENT Fluion Enln,ion lol. R, Fl.. lor, L.ft Fl.. RUlIlion RighI ROllliun LaI1 REMARKS: IJu. .J-g ;"...1 H ~ . " ." . 12 _m. 65" -.- '.-- -SO. 40" 40" '55~ . ._~~~l. " " :1 o Q.. 90" 300 4~ 40" 45. 45. .... ~-- - L.., .i i: I Ii! I :U~"OUOOU~~N=~~~~~~~~I;;~~~~~~== z !O~~~~~~~~ ..~~~~..~~__N~.~~~ " ~!;: !lI1: '.I ~ ;~- . ~~fU~"UUUUO~~~~~~~~~~~~N~~~~~U== ~O~~".~G~~N".~~~..~=~~N~.~~<<~, ~ ~ I! ... - fO~"OOOOO~~~~~~~~~~o~~~~~~~~== !O~~~~~.~~~~~~.~.a~~~~N~~~w .~ Illoo~~uuoou~~~~~~~~~~o~~~~~~~~~~1 ~~ ~~n.~.~-Nn.~~~.m~~~~Nn.~~<<~ ~- L' :~ SMITH CHIROPRACTIC CENTER OK, SAMUEL K, SMITH IUCI E.1sl Brown SI,,,,,, MkJdletuwII. P^ 17057 TeI"phone: 17l n !loW-OIJ0.4 April 26. 1993 Northwestern National/Statesman P.O.Box 1820B7 Columbus, Ohio 43218-2087 RE: Patient: JoAnn Lingle PollcyH: CC081202 l Dear Sirs: The above named patient entered my office on 03/03/93 complaining of Injuries sustained In an automobile accident on 02/14/93. The patient was examined and radiographs were taken. Followlny were the results of those examinations. . The patients complaints were mldback and pain between the shoulders, and neck pain. The patient's Bleeps reflexes were + 1 on the right and + 2 on the left. The Triceps reflexes were + 1 on the right an + 2 on the left. The patient was able to ~alk on her toes, heels, and heel to toe with- out any difficulty. The follOWing orthopedic tests were posatlve: Derifleld Cervical Test on the right, Sacral Test on the right, Foramina Compression Test on the right and left. Shoulder Depressor Test on the right and left. . Cervical motion as measured by a goniometer was as follows: CERVICAL MOTION IN ITIAL NORMAL FLEXION 370 650 EXTENSION 650 500 LAT.R.FLEX. 450 400 LAl.L.FLEX. 450 400 R.ROT. 600 550 L.ROT. 600 . 5So DIAGNOSIS: 847.0 Sprain/Strain cervical ligaments and muscles + 739.0 Segmental Dysfunction ( Subluxation ) C-2 & C-4 847.1 Sprain/Strain Dorsal Muscles and ligaments + 739.2 Segmental Dysfunction ( Subluxation) T-5 I'"1I:T1tl't. III W....IL-U.KI ,~ A.._ .......<:O!I --A-rLAw a.al NQIIt'noI .....,.,. .~ tot. - ...........v...... mtO ( ..".. L.,....... ... N1'W'8 QHA.-- & W~ _...-.m a.rllo.~ ruo..... ... .x..IJQOK 1'HlIQ ....~ It. &.ua "...-.... & "..-....0..- ... .1_ ...~. MOC)rM ~ or.. (717) U..~ ...... C7f71 Ue-T7WO February 21, 1995 CERTIFIED MAIL Records Custodian Samuel R. Smith, D.C. Smith Chiropra~tic Center 279 West Main Street Suite B Middletown, PA l7057 Rei Linq1e v. Silvis and Schoffstall Our File NOI 27-13 r Dear Sir/Madam I The purpose of the attached sl1bpoena is to obtain copies of any and all records, reports and diagnostic studies reqardinq Joann L. Linqle, SSN: 164-30-3382, in the above-referenced matter. . The subpoena re~\ests that you appear at the offices of Peters and Wasilefski, 2931 North Front Street, Harrisb'\rq, Pennsylvania 17110, March 9, 1995, at 9:00 a.m.. However, in order to save time and inconvenience, we would accept a copy of all YOtlr records alonq with the enclosed verification, exec.\ted by you, indicatinq that yo.\ have forwarded to liS a complete copy of your file with reqard to the above-referenced records. If you forward a copy of otlr records to us 011 do not have to atteni! the deposition. I )'OU are not w nq to orwar your recor 8 to us, please contact my office and advise of same. I thank YOll for your prompt attention to this matter. If you have any questions, please do not hesitate to contact me. ;;If) tjf2g yours, ~n~ Bonetti DJB:kcb Enclosllres cc: Petar R. Henninger, Jr., Esquire, w/encl. l PETERS 8& WASILEFSKI II TTOIINIVI AND COUNllLOftl liT LAW 2931 NOftTH fftOHT STlIIIT 1WUu11U1lO. PlNHIVWAHtA 17110 ( WIWAM J. rITIIIl QWILII L WAlUflIU _J.~ __ Co PHIUJI'I _II. IllHIHOCl( lIIOMAI A. lNlCI .....-.A .. fAIIAICAHDOLA ~,,- TIUPHOHI'7171 Z2I.7... 'AX 17l7l Z:Ja.771O April 4, 1995 c. Records CUstodian Samuel R. Smith, D.C. Smith Chiropractic Center 279 West Main Street, Suite B Middletown. PA 17057 RE: Lingle v. Silvis and Schoffstall Our File No.: 27-13 Dear Sir/Madam: I recently subpoenaed a complete copy of Dr. Smith's records. I received your response on or about February 27, 1995. Unfortunately, it appears that the records which you sent me are incomplete (although your invoice suggests "copies of all records · l . It appears that the first medical records you provided me are dated March 3, 1993. . I know from Mrs. Lingle's Answers to Interrogatories as well as references contained in other medical records that she had obtained treatment from Dr. Smith for many years prior to 1993. Kindly provide me with a complete copy of all record. cozzce%'Z1irzg JOlLl1lZ L. Lingle pursuant to the subpoena which was properly served upon you. Should you. have any questions or wish to discuss this matter further, please do not hesitate to contact me. ,e . l/:/ yours. l ..7f/ 4)/ I~iis P'Bonetti . I " DJB/mg cc: Peter R. Henninger, Jr., Esquire '- -, -' .. .. 1_ ...--- ~ .. - -, ,-. ...: ,- !r*-i .. , ......- ~. '. .' ~'.: !'t -- """ '. .. ~ - ...c . ~. ... j!i'" .... ... ~'" .- IIC-' ". - -- -., , . .lt10, ~ . ,.' ~11 -~ . k12 ,. .. EXAM , ~ .. .' EXAMINATION RECORD :'. .".'T" :~ ,:'..;~/!.i:';'~~l\~~':: . ., IYfJ. -.....v ...-......., - -~ . ...~\.""'...~ ",' . D -L.....,.:.~:.'.;...'...; .. .'...... J':"'~ '0" :. ..... WNTTIH IlU'CfIl' _ DlIT ___ ~_~'IX. 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',/0; T"_q 1"'-'1 /'1 (-y('(( t-.?.RR .101~o'-i'.II'' 1"-"'1 T." ,.:., l"..,.(l( 'r."StJ. :'11~o 'c;t'<.'P' -_0. 'T". / --_I (".'i40l (-to/( : ',., '\ 'fl.,PI "'--"7 ,- ......- 1 C'.~ C-'l..~-It . .~~ it ,I'I -", ,- - f C..)la, C-1.01( "I'-!". V:7'1 T.Cl ....'1 --T-I C'-'fCl. (.2.CiI? ~I" R,P/ T_q T.'I --r:., c:..'I'<I (".j~" _ ~~H/frH:'nvN7: '0"'" NO. lSl2 Hllu.caU"' CO.~.ATIO", "."'VILLI. L. I., N. Y. 11747 .~~,~ " . ~AT1&HT". HAM- Joann L1ng1e -HICT' NO ," 1.<'. ~ , , ., . . . .. x a z Q ik u) (: ,....: , - ".-: :r,'l...( ,UG , ,. \f.L5 ~...... .-.J:,' I.r- ll.. .--~ ~;! ~r I~ 0'\ "!") }.I~_. <" I' -~ll to' ; 1" ~'~ 1,;:.' ll'J f"- I" ::r. ' ...... -- ". \.'.' :;, 0 I:' Ll .,.., >- \,(1 ; - rr; t:':"; ; .~- Ulr=.' u' - , : fE{ :;- , - , ~t: ...:.: , "j , ,- ,.. , ! , fi:L' C- , 'i',) " L.oI !..: }:.~ 1" _. ,,, I.. ." : ~:J LJ (,"\ U - J ~ j 0 lli ~ j E I ~ I J IE ~, IE WJl 0. . ;. . > . ,. SEP 1 8 1995 t? . . 1 .. 9. With regard to the non-expert witnesses, Ms. Hammaker and Ms. Lovenguth, Plaintiff, at this late date, failed to provide the address andlor telephone number for either witness to facilitate contact with these individuals to determine their testimony. 10. Further, since Plaintiffs' Counsel also indicated that he was going to be on vacation through September 9, 1996, very Hille time has been provided to depose these witnesses. II. At this late date, even if a deposition can be arranged, insufficient time has been allowed to investigate the veracity of what these individuals would say during their depositions. 12. With regard to the proposed expert, E. Thomas Woldylack, C.P.A., Plaintiffs failed to provide an expert report or signed Answers to Interrogatories as required by Pa.R.C.P. 4003.5 (and as requested in Interrogatories 10 and 11). 13. Pa.R.C.P. 4007.4 requires a party to supplement Answers to discovery with regard to questions involving the identity and location of persons having knowledge of discoverable mailers, as well as, expert interrogatories. 14. Given the fact that Plaintiffs originally certified this case for trial in September, 1995, the fact that this mailer was originally scheduled for a Non-Jury Trial in June, 1996 and the exchange of letters on May 22, 1996 (Exhibit "B") July I, 1996 (Exhibit "C"), it is clear that Plaintiffs have completely ignored the discovery rules, the Pre- Trial procedure of Cumberland County and the subsequent request of Counsel for Mr. Silvis to timely identify witnesses. The only purpose of the foregoing is to thwart the legitimate <I , . , . 27. Delores Heintzelman had never been disclosed as a potential witness or as a person with knowledge of a discoverable mailer. See, Exhibit "A", Exhibit "B" and Exhibit "C", 28. Counsel for Mr. Silvis advised Plaintiffs' Counsel that Ms. Heintzelman had not been disclosed as a witness and indicated that he would object to the deposition and the use of Ms. Heintzelman as a witness in this mailer. 29. Since Counsel for Mr. Silvis was in the process of driving to Pillsburgh to allend a trial at the time of this telephone conversation, Counsel for Mr. Silvis advised Plaintiffs' Counsel that he would not be available until Friday, August 30, 1996 to assure that the deposition was not taken during Counsel's absence. 30. On August 29, 1996, Counsel for Plaintiffs sent a fax confirming a deposition for August 30, 1996 a 9:30 a.m. A true and correct copy of the fax sent by Plaintiffs Counsel is attached as Exhibit "F". 31. Prior to the deposition, Counsel for Mr. Silvis again objected to the deposition and attached the appropriate Interrogatory Answers (See, Exhibit "A") and Counsel's July 1, 1996 leller (See, Exhibit "C") to the deposition. 32. Plaintiffs' Counsel explained that Ms. Heintzelman's identity need not be disclosed since she was a "rebullal" witness. 33. The foregoing is without merit since Ms. Heintzelman, according to Plaintiffs, "has knowledge of any discoverable mailer" (Interrogatory 14) and Pa.R.C.P. 4007.4 specifically required Plaintiff to supplement said answers. 8 '. 22. Are you withholding from production under any of the preceding interrogatories and/or reque.t to produce any document or tangible item on the grounds of privilege or work product? If '0, please .tate: None (a) The identify of the doc:ument or item, (b) The date the document WAll prepared, (c) The identify of the author of the document; (d) The recipient of the document (if any); (e) The grouncl.a on which you are withholding the document from production; and (f) The identity of the custodian of the document. exhibit E OCCUPATIOUAL REHAB AUD RESEARCH ASSOCIATES, ~UC. U5 SIR THOMAS COURT, STUDrO E .. ,y . HARRISBURG, PA 17109 Il I' BASEI.IUE PHYSICAL THERAPY EVAI.UATIOU RES;!jtS_ ". , PATIEUT: JOAUU LIUGLE SSU: 164-30-3312 I ',""""""T.c: 1-%0-94 - RE?ERRAL SOURCE: DR REX HERBERT DIAGUOSIS: HUP CS-6, C6-r ADMIT DATE: 1-%0-94 ~UTICIPATED DISCHARGE DATE: RX 1.0S: J08 TITI.E: FI.ORAI. DESIGUER V.O.T. ~: HX: pt, liIlL4 .(.n.uo.t.uad oUt a. c.a.... a.cc.Lda.n.t. Oil. %-14-93, .(.n. IIIUc.h. 04h.IL 1IIlL4 .I\.~-ll.I\.d/l.d, wh.Lt/l. a.t. a. o4.t.op. p.t. Wa.4 lII~g a. 04l1.ltot. bc.t.t. aAd oUtjlJ.1l.lI.d h.lI.II. II./l.c.h. aAd L 411. 0 u.t.dll.Jl. . P t, h.a.4 4-Ul.CIL bun. a..uz. 9 R.o.u.d w.U:h. H UP. p.t. due,.,../.bu a. con..o.ta.n..t. "a.c.h.IJ" pa.UI. oUt h.lI.Il. L a.un .l..n.t.o .t.h.IL 4c.a.pu.ta. .l\.ILS.l.OII.. PRECAUTIOUS: U-4.t.l..n.g > IS lob.1> I. DISCHARGE llAH. l..l.ro.l. 1) p.t. w.U.t .I\./l.twu\. .to p...ILu.l.Ou.4 4un.c.t.l.o/'l./U .tILucz..L w.l.t.h.ou..t. ~t.l Oil.. %). pt, w.u...t 611. I oUt h.om/l. lI.lC.lI.JI.CUIL p.l\.ogJUZ./II. 3) pt. wUt demon..6.t.1l.a.t.1L 04t..'l.lI./I.g.t.h. oUt B UE I 04 a.t. 5/5 OR. MMT. II. CURREUT PHYSICAL STATUS: "AROM: B UE'4 WUL ClI.JI.u.l.c.a.t ,.e.u.LOII. 40 lI.lC.ot.lI.n.4.l. 0 II. 5 0 R La.t. B e.n.d 4 3 L La.t. BlI./I.d 4% R Ro.t. 45 I. Rot. 44 " "PSI.R: U/T "MMT: R UE 5/5 lI.lC.C/l.p.t. 04h.o~lI.JI. a.bduc.t..l.oll. 4+/5 L 4h.ou.t.d.lI.JI. 4.tu.LolI. 4-/5 a.bdu.c.t.l. 0 /I. 3+ / 5 u.tll.n.4.l.o /I. 4/ 5 IR/ER 3+ / 5 cz..Lbow ,.tll.lC./u.t 4/5 4U.p/pJl.O/l. 4/5 ~ ,.tex..l.O/l. 4/5 ll.X..t.lI.n.4.l.0/l. 4+/5 "SEUSATIOU: .l.n.t.a.c..t. "DTR'S: %+ B CS,6,7 'PALPATIOU: .t.e.n.dll.~/I.44 t.Jt.a. p ILl .l.u.4 'POSTURE: /l.o...ma..t 'GAIT: /l.o...ma..t 'GRIP STREUGTH: oUt L .t/l.ua.t.o... 04c.a.pu.ta.lI., 04U.p~p.(.n.~~4 e S~S I % 3 4 5 mlt<L4lJ.1l.lI.d R 50 78 6S 6% 48 0/1. JAMAR L 33 50 45 45 3S R.O~ 53 49 (( r. rEiA TMcH,T Ej,~l:! (STG I: rn..tVl..71L::.tlULt c,ll.'l.u.i.=!. .t.'ULc..t...i.OIl. Mo.i.o.t. ~~ ~ Il.lI.lI.d~d Home. c.~e.'l.C~lI. p~og~~ nEC~.'!: JAN 1 9 199f ~ax A. Hrtl....:. 0.0. M_ P. Hcll..-.ck. 0.0. ~Ct:lllM I.. Cireen. 0.0. AFlUNGTON OFlTHOP80lC CUNIC, INC. e~ S. ArtIrlg'Ccn Avll/"lU. H.......tIt:IUrg. PA 171051 717-El~-e~!:5 FAX.717.6!:5Cl.Cl630 OM:nOCKiCl SUt'g...." T,.....,.,.,.= ~..:cnGI"UCl:l". ~Cl8 Hend SPinel Pedl8Cl"lt; Ot"'Cl"lCI:led1c8 ~CI"l:8 M8dcln. J;muat'''1 14, 19H \7l.llia:n A. \-lewer. D.O. 30 S. Front Street ~teelt~n, ~A 1711: ~E: Joann Lingle Dear Bill; Thank you for referring your patient, Jo~nn Lingle to our office on January 11, 1994 for evaluation of an injury she sustained as a L'ssult of a moto,r veh1cle a.ccident on Ft!bruary 14, 1993. . She .1tates tha.t she was deli'lering flowers in Shiremanstoll,'Tl and was ~topped to allow a vehicle to make a left turn in front of her, when the car behind her was pushed into her van by another motor vehicle that had struck the car behind her. She was wearinq her se~tbelt and her van was driveable after the accident, but she had neck pain followinq the ~cciden1: at that time. She ~en went to Dr. Smith the chiropractic four day~ later, ~t which ~~e, he took x-rays ~nd began mani~ulation treatments which have continued two to three times a week since the accident. She has not gotten any better 3nd she finally has ~een you for ~~i3 problem. ~~ orthopedic referral was made. She is complaining of pain that begins at the base of the neck ~nd radiates into her left scapula and left tricsps area '..it..."l resultant wea~~ess in her left arm, especially whan she i~ maki~q her floral arrangements and. has to hold her arms up. Sht! .jel1i~s any prior history of problems with her necy. nor any o~her siqnificant medical illnesses. Hy e:<:arnination reveals res'Criction of range Ot moeicn :I: t.~l! ~ervical s~ine, especially with ~xtension and. 113:1: ~ide bending. She has a pcsitiv~ Spurling's reproducing her left scapular and upper ar:n pain at this ti...ne. She d~monstrates neurologi:al defic.!.~s involvinq C7 en the left compared to the right, espe=i~llY ~ '~ith her finger e:~tensors '..lhich ar!! q'.1.ite weak at this time. .' 15. The office note of Dr. smith for February 19, 1993 fails to inolude any mention of an automobile aooident on February 1.4, 1993. Answer: Denied. 16. Mrs. Lingle did not present to Dr. smith for treatment oonoerning the automobile accident of February 14, 1993 until March 3, 1993. Answer: Admitted. 4. Plaintiff avers that these answers were flip-flopped somehow and pursuant to Pa. R.C.P. 4014(d) she should be allowed to amend her answers since the presentation of the merits of the oase will be subserved thereby and it had been the prior testimony and has been the position of the plaintiff, Joann Lingle all along that she mentioned to Dr. smith on February 19, 1993 the faot that she had been in an automobile accident on February 14, 1993 and that in fact was the reason for her visit of February 19, 1993. 5. Plaintiff delivers and therefore avers that the amendment of her Answer to Request for Admission will not prejudioe your Defendant most speoifioally due to the faot that to not grant such relief justice will be ill-served. 6. Your Defendant will not be prejudiced by this amendment since he would still be able to provide evidence with regard to fact that Dr. smith's reoord of February 19, 1993 fails to JOANN L. LINGLE and ABNER O. LINGLE, her husband, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : . . v. CIVIL ACTION - LAW TODD CLARK SILVIS, Defendant 94-7010 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of December, 1996, upon consideration of Defendant's Motion To Determine the Sufficiency of the Answer Pursuant to Pa. R.C.P. 4013(C), and following a discovery conference held in chambers of the undersigned judge on this date in which plaintiffs were represented by Peter Henninger, Esquire, and Defendant was represented by Dennis J. Bonetti, Esquire, and Kenneth J. Buggy, Esquire, and upon considoration of the stipulation of Plaintiffs' counsel that the records in Defendant's possession of Samuel R. Smith, D.C., and william Wewer, D.O., are authentic, and upon consideration of the representation of plaintiffs' counsel that verification will be provided by Plaintiffs to Defendant's counsel with respect to the admissions of the Plaintiffs, the admissions of the Plaintiffs are deemed sufficient and, to the extent that Defendant's motion requests relief based upon the premise that they are not sufficient, it is denied. By the court, ,; ~ - t; ..:I r .. ~..; N ~ x: 0...... \.J::( Q,. q> (" ., <:;.J C(. ,... ~'(l i N r )., U r. w.;J I.J l7lill 0 nO- ~ v:l ~ Q'> - I ~ j 0 ~~iEI ~ ldl illil 0. 0( .' . , D~r 1 n 199fflf' Eld1IbIt A , , JOANN L. LINGLE and . IN THE COURT OF COMMON PLEAS OF . ABNER O. LINGLE, her husband,: CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CIVIL ACTION - LAW . . TODD CLARK SILVIS, Defendant . 94-7010 CIVIL TERM . ORDER OF COURT AND NOW, this 2nd day of January, 1997, upon consideration of Defendant's Motion To Compel a Physical Examination pursuant to Pa. R.C.P. 4010(A) and a Motion To compel Discovery Pursuant to Pa. R.C.P. 4019, it is ORDERED and DIRECTED as follows: 1. Defendant's Motion To Compel a physical Examination pursuant to Pa. R.C.P. 4010(A) is granted to the extent that Defendant shall be permitted to have Plaintiff Joann L. Lingle exalnined by Dr. Daniel Hely, who had previously served in the capacity of independent medical examiner. 2. Defendant's Motion To compel Discovery pursuant to Pa. R.C.P. 4019, by virtue of an agreement of both counsel, is deemed moot inasmuch as Plaintiffs have heretofore supplied the information requested. In the event that either counsel requests a continuance of the nonjury trial in this matter as a result of time constraints occasioned by this order, the Court will consider such a motion when it is filed. The direction in the pretrial order heretofore " ~ leI .' c; ~~; " ,~ lL'~"~ 1 . ~; (.)~ C' '-' \,...- ~ .01 "1 ~\ ; Il L\'.:' ..' , c'-' I() [i:t." . "--1- j.. :..: l'. r- .' 0 ()' '.,) -