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HomeMy WebLinkAbout95-00520 .. " \ HAROLD S. IRWIN, Ill, ESQUIUE ATIORNEV ID NO. 29920 36 SOUTH PITI STREET CARLISLE PA 17013 (7 t 7) 243-6090 ATIORNEV FOR PLAINTIFF PATRICIA SIMMONS, I'lainliff vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW STAR TRANSPORTATION, INC., HOMER WORLEY, BURLINGTON : NO. 95 - 520 CIVIL TERM MOTOR CARRIERS, DALE SCAIFE, and ELLIOT SIMMONS, Defendants TO THE PROTHONOTARY: Pleasc withdraw the appcarance of Kimberly A. Moss, Esquirc, of Roche & Carter, and cntcr my appcarance for thc plaintiff in thc above matter, Plcasc notc that the plaintiffs' prior attorneys of record, Roche & Cartcr, have rcqucstcd this action as indicated in their Ictter of May 16, 1995, a copy of which is attachcd, May 24,1995 May Zof, 1995 BY: ROCHE & CART ~~I~ / / ~ ~.. -<...~..,..'(.f,.."'-".., I ~'-..;J- .~-_~ ... --- '.1F.-(or'" , ,,'.,.:.'~ ""I"'",, .:' "" ,"''''':- , . ~'L ,,' " 0:1110-00101 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: TIMOTHY MCMAHON, Esquire ATTORNEY I.D. NO.: 52918 100 pine Street, 4th Floor Harrisburg, PA 17108-0803 (717) 232-1022 Attorney for Defendants, Burlington Motor Carriers, Dala Scaifa, Star Trans- portation, Inc. and Homer Worley COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff No. 95-520 civil Term v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC. ELLIOT SIMMONS, and HOMER WORLEY, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED DEFENDANTS'. BURLINGTON MOTOR CARRIERS AND DALE SCAIFE'S BRIEF CONTRA DEFENDANT. ELLIOT SIMMONS'. MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF FACTS On February 21, 1993, Defendant, Elliot Simmons (hereinafter "Simmons") and his wife, patricia Simmons, Plaintiff herein, were travelling northbound on Route 81 in Middlesex Township, Cumberland County, Pennsylvania. At that time, a collision occurred between their vehicle and the vehicles operated by the remaining Defendants, Burlington Motor Carriers and Star Transportation, Inc. and their respective drivers, Dale Scaife and Homer Worley, Plaintiff, patricia Simmons, thereafter instituted suit against the corporate defendants and their truck drivers, as well as her husband. The Cumberland County docket entries in this case reflect that proper service of Plaintiff's Complaint filed on January 31, 1995, was not made on her husband, Elliot Simmons, until it was received by him by certified mail on November 6, 1995. (See, Exhibits A and B at No. 9 attached to Motion for Summary Judqment of Defendant. Elliot Simmons). In the interim, Plaintiff's then counsel, Kimberly Moss, withdrew her appearance and new counsel, Harold S. Irwin, III, Esquire, entered on Plaintiff's behalf. (Id at Exhibit A) . On January 13, 1997, Co-Defendant, Simmons, filed an Answer and New Matter to Plaintiff's Complaint. A request for admissions was served by Simmons and answered by Plaintiff on March 4, 1997 regarding the facts and circumstances of the service of Plaintiff's Complaint. simmons has now filed a Motion for Summary Judgment asking this Court to dismiss hi.m as a party to this proceeding based on Plaintiff's delay in serving the Complaint. Said Motion is contested by the Answering Defendants, Burlington and Scaife, and is presently before this Honorable Court for resolution. -2- II. ISSUES A. WHETHER DEFENDANT, SIMMONS', FAILURE TO PROPERLY RAISE THE ALLEGED DEFECT IN SERVICE BY WAY OF PRELIMINARY OBJECTIONS OPERATES TO PRECLUDE SIMMONS FROM RAISING THAT DEFENSE IN CONJUNCTION WITH NEW MATTER TO FORM A BASIS FOR SUMMARY JUDGMENT? B. WHETHER A DISMISSAL OF SIMMONS WOULD WORK AN UNDUE AND UNFAIR PREJUDICE UPON DEFENDANTS, BURLINGTON AND ITS DRIVER, SCAIFE, WHOSE PARTICIPATION IN THIS PROCEEDING HAVE BEEN STAYED UNDER CHAPTER 11 OF THE FEDEDERAL BANKRTUPCY CODE? Suggested answers in the affirmative. III. LAW AND ARGUMENT A. DEFENDANT, SIMMONS', FAILURE TO PROPERLY RAISE THE ALLEGED DEFECT IN SERVICE BY WAY OF PRELIMINARY OBJECTIONS OPERATES TO PRECLUDE SIMMONS FROM RAISING THAT DEFENSE IN CONJUNCTION WITH NEW MATTER TO FORM A BASIS FOR SUMMARY JUDGMENT. Pa. Rule of Civil Procedure No. 1028(a) one provides: a) "preliminary objections may be filed by any party to any pleading and are limited to the following grounds: 1) ".. . improper form or service of a writ or complaint," The rule reflects the only vehicle in which a party may challenge the propriety of service of a complaint. It goes on to state that a defense of the statute of limitations is properly raised in new matter. Moreover, our Supreme Court has held that the only remedy to be afforded a defendant who successfully challenges improper service is to set aside the service. Nicolosi vs. Fittin, 434 Pa. 133, 252 A,2d 700 (1969); Frvcklund vs, Way, 410 Pa. Super. 347, 599 A.2d 1331 (1991). -3- In Nicolosi, the Court determined that where defective service has been set aside, the action itself remains; if Plaintiff can properly bring Defendant on the record, the original action may be pursued. Nicolosi at 135-136. Here, Co-Defendant Simmons' Motion for Summary Judgment is simply an attempt to bootstrap a waived defense of improper service to one preserved in New Matter, i,e. the statute of limitations. To wit, Simmons received service of the Complaint on November 6, 1995, and chose not to respond to that Complaint until over 14 months later when he filed an Answer and New Matter, rather than preliminary objections to Plaintiff's Complaint, Simmons clearly had a 14-month window in which to raise improper service, which he disregarded. Defendants, Burlington and Scaife, submit that Simmons' failure to file preliminary objections to Plaintiff's improper service operates as a waiver of that defense. Such being the case, should this Court so find, the only effect of untimely service is that it may be set aside; but Co-Defendant Simmons remains in the case by virtue of his filing an Answer and New Matter, Cinque vs, Asare, 401 Pa, Super. 339, 585 A.2d 490 (1990), and, Simmons is foreclosed from arguing the statute of limitations defense in support of a Motion for Summary Judgment. -4- B. A DISMISSAL OF SIMMONS WOULD WORK AN UNDUE AND UNFAIR PREJUDICE UPON DEFENDANTS, BURLINGTON AND ITS DRIVER, SCAIFE, WHOSE PARTICIPATION IN THIS PROCEEDING HAVE BEEN STAYED UNDER CHAPTER 11 OF THE FEDEDERAL BANKRTUPCY CODE, The docket maintained in the office of the Prothonotary of Cumberland County reflects the entry of a stay of proceedings granted to Defendants, Burlington and Scaife, as of January 25, 1996, pending the conclusion of a Chapter 11 Bankruptcy, Prior to the Suggestion of Bankruptcy filed by Defendants, Burlington and Scaife, on January 19, 1996, preliminary objections had been filed and remain unresolved presently. Under Nicolosi, even if this Court finds that Plaintiff is unable to adequately pursue a cause of action against Simmons, with service having been set aside, Simmons' presence in this case remains active as to all co-defendants, As to Defendants, Burlington and Scaife, Preliminary Objections must first be resolved before a potential joinder of Simmons under Pa. R,C.P. 2252(d) may be set in place. should this Court dismiss Simmons as a party Defendant, Burlington and Scaife would suffer unfair prejudice as there is no other vehicle in which to pursue a potential crossclaim after the bankruptcy stay is lifted and the preliminary objections have been decided. IV, CONCLUSION For all of the foregoing reasons, Defendants, Burlington and Scaife, respectfully request this Honorable Court to enter an -5- CERTIFICATE OF SERVICE I, Joanne Ramirez, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 6th day of August, 1997 served a copy of the foregoing document via First Class united states mail, postage prepaid as follows: Brian J. Schu, Esquire WHITE , WILLIAMS 1800 One Liberty Place Philadelphia, PA 19103-7395 Kevin E. Osborne, Esquire THOMAS, THOMAS , HAFER 305 North Front street P.O. Box 999 Harrisburg, PA 17108 Michele J. Thorp REYNOLDS , HAVAS 101 Pine street P.O. Box 932 ,Harrisburg, PA 17108 ~--c~~ ~ JOANNE RAMIREZ : "-.' . . . REYNOLDS & HAVAS ~\O A Pno......ON....L COHroQ"A'ION ATToRNeYS AND COUNSElons AT LAW '01 PINE STflEI!T P,O, Bo~ 932 HARRISBURG. PeNNSYLVANIA 17108.0932 TELePHONe 17171 236,3200 f?- AUG'o B 1997 _ __.._ _'N___'~_~W '. .._,..__.....o_......_......""._.,....o-......._'..-u.,~,.~ ........,..,,,..,,--,_._-~.. -~. .. .. , , , ... ~ ..... , COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff No. 95 - 520 civil Term : v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY, CIVIL ACTION - LAW . . Defendants JURY TRIAL D~IDED REPLY BRIEF OF DEFENDANT, ELLIOT SIMMONS, IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. Reply to Plaintiff's Brief to Defendant's Motion Judgment in Opposition for summary plaintiff, patricia Simmons ('Plaintiff') filed a Complaint in this matter on January 31, 1995. This Complaint was not served upon Defendant Elliot Simmons ('Mr. Simmons"). Due to the subsequent expiration of the statute of limitations, the issue presented to this Honorable court is whether Mr. Simmons is entitled to summary judgment based upon Lamp v. Heyman and its progeny. In Plaintiff's Answer and responsive Brief to Mr. simmons' Motion for summary Judgment, Plaintiff claims that her prior counsel mailed a copy of the Complaint to Plaintiff's attention as evidenced by Exhibit A attached to Plaintiff's Response. Based on the forwarding of a copy of the Complaint to , Plaintiff's address, Plaintiff now contends that this action somehow precludes the entry of summary judgment against her. certainly, the mere fact that Plaintiff's counsel sent her client a copy of the Complaint does not constitute proper service upon Mr. simmons. It is therefore reiterated that there is no evidence Plaintiff made ~ attempt to serve the Complaint upon Mr. Simmons. Plaintiff further asserts that a letter from Mr. Simmons' counsel in another case to Plaintiff's counsel supports Plaintiff's claim that service was effectuated. A copy of the June 1995 letter is attached to Plaintiff's Response as Exhibit B. To the contrary, Attorney Schu's letter to Attorney Irwin states; "This will confirm our discussion on June 13, 1995, at which time you advised me that Mr. simmons could disregard the notice of intent to take default as there had been no service of the complaint." (Emphasis added.) Plaintiff's Exhibit B supports Mr. Simmons' position that service of the January 31, 1995, Com~laint was not attempted nor effectuated. Plaintiff's counsel then waited another five months, or 11 months after the filing of the January 31, 1995, Complaint, before reinstating the Complaint in this matter. It was not until after Plaintiff's counsel filed a praecipe to reinstate the Complaint in November of 1995, that valid service upon Mr. simmons was completed. Plaintiff's response and Plaintiff's brief in opposition to Mr. Simmons' Motion for summary Judgment serve to solidify - 2 - , Mr. Simmons' posi tion that Plaintiff did not comply with the standard imposed by Lamp v. Heyman and subsequent cases. Therefore, Plaintiff's action in filing the Complaint within the applicable statute of limitations did not toll the running of the statute of limitations in this case, as no good effort was made to serve the Complaint prior to its expiration or the expiration of the statute of limitations. Therefore, as a matter of law, Mr. Simmons is entitled to summary judgment. II. Reply to Brief of Defendants' Burlington Motor Carriers and Dale Scaife As stated above, Mr. Simmons' Motion for Summary Judgment involves a standard Lamp v. Heyman issue. Defendants Burlington Carriers and Dale Scaife ("Defendants") challenge Mr. Simmons' Motion for Summary Judgment based on the alleged waiver of Mr. simmons of any challenge to service. Defendants claim that Mr. Simmons should have raised the alleged defect in service by way of preliminary objections. Mr. Simmons did not challenge service of the January 31, 1995, Complaint by way of preliminary objections because the initial Complaint was never served upon Mr. Simmons. In November of 1995, after the expiration of the applicable statute of limitations, service was effectuated. Therefore, Mr. Simmons had no challenge to the November, 1995 Complaint based on improper service. Nor did Mr. simmons file preliminary objections to the November, 1995 Complaint based upon the expiration of the statute of limitations. It is established law that preliminary objections - 3 - \ are an improper method by which to challenge the running of the statute of limitations. Accordingly, Mr. simmons raised the statute of limitations issue in his Answer and New Matter and properly preserved that issue for later disposition by motion of summary judgment, which is now before the Court. As for Defendants' contention that Mr. Simmons should be denied summary judgment because Defendants are currently in bankruptcy, this argument is also misguided. This action is stayed as to Defendants only. Mr. Simmons is entitled to pursue his Motion for Summary Judgment, as the case has now progressed to that stage. When Defendants' bankruptcy is resolved and Defendants' preliminary Objections are disposed of by this Honorable court, Defendants will then have the opportunity to join Mr. Simmons pursuant to Pa.R.C.P. No. 2252(d). REYNOLDS & HAVAS A Professional Corporation Date: ce/, }'1"'1 By: Michele J. Thorp Attorney I.D. #71117 101 pine Street HarriSburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Elliott Simmons - 4 - , CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the united states Mail at Harrisburg, Pennsylvania, "/0 / day of August, 1997, first-class postage prepaid, on the addressed as follows: Harold S. Irwin, III, Esquire 36 south pitt street Carlisle, pennsylvania 17013 (Counsel for plaintiff) Timothy J. McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 100 pine street Harrisburg, Pennsylvania 17108-0803 (Counsel for Burlington, Scaife and Worley) Kevin E. Osborne, Esquire Thomas, Thomas & Hafer 305 North Front street Harrisburg, Pennsylvania 17108-0999 (Counsel for star Trans.) REYNOLDS & HAVAS A professional Corporation By: , . / " : /,1..1_ .1'1 . th"t1/____ cll/1' lJU;~'fC/ Sharon Dell-Gallaghe~, ~ecretary ~ : , ' .. .' REYNOLDS & HAVAS ~\O " A p"C,...'ON-.L COA.-o""TION ATTORNEYS AND COUNSELORS AT LAw 1 0 1 PINE STRI!I!T P,O, Bo>< 932 HARRISBURG. PIl:NNSYLVANIA 17108.0932 TeLePHoNe (7171 236..3200 ~u~ o 7 1997 ; ~"~~';"-,;,:~~,,,.{~"'-""""<"""'''>-''--~'-~~-----' . ",,,,,,,,':~,,,_',,___,.~"_.i._.~,,.':"_',.o.,.,,4...h"""----- - -_.~._-.......... .. '. .r . , .'.. . ,- ~ 5;1.7 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff No. 95 - 520 Civil Term v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER ,WORLEY, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED BRIEF OF DEFENDANT, ELLIOTT SIMMONS, IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. Statement of the Case This case arises out of a motor vehicle accident which occurred on or about February 21, 1993, on Route 81 North in Middlesex Township, Cumberland county (" the accident"), At the time of the accident, Defendant Elliott Sinunons ("Defendant Sinunons") was operating a motor vehicle j,n which his wife, Plaintiff patricia Sinunons ("Plaintiff") was a passenger. As a result of injuries allegedly sustained in the accident, Plaintiff filed a Complaint on or about January 31, 1995. Plaintiff's Complaint names as Defendants Burlington Motor Carriers, Dale Scaife, Star Transportation, Inc., Elliot Sinunons and Homer Worley. The January 31, 1995, Complaint constituted original process in this action and was filed at Cumberland county docket number 95-520. Plaintiff did not serve the Complaint upon Defendant Sinunons within the ninety (90) day period provided by Pa.R.C.P. , complaint or the reissuance reinstatement thereof: or the 1. by a competent adult who is not a party in the manner provided by Rule 402(a); 2. by any competent adult by mail in the manner provided by Rule 403; 3. in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction; 4. in the manner provided by treaty; or 5. as directed by the foreign authority in response to a letter rogatory or request. In the instant case, Plaintiff filed a Complaint on January 31, 1995. It is undisputed that the Complaint was filed within two years of the accident which precipitated this action. However, Plaintiff did not serve the Complaint in accordance with Pa.R.C.p. No. 404. The ninety day period lapsed without Plaintiff making any attempt to serve the Complaint. In fact, Plaintiff never made any ; attempt to serve the original Complaint upon Defendant Simmons. Counsel for Plaintiff reinstated the Complaint on November 2, 1995, or more than two and one-half years after the accident. The Complaint was reinstated approximately ten months after the initial filing of the Complaint, The landmark case of Lama v. Hevman, 469 Pa. 465, 366 A.2d 882 (1976) and its progeny impose a burden of good faith compliance in order to toll the statute of limitations and preserve a cause of action. This goad faith effort requires, at a minimum, compliance with the Pennsylvania Rules of Civil Procedure governing service of original process. Feher by Feher v, Altman, - 3 - , 357 Pa.Super. 50, 515 A.2d 317 (1986), alloc, denied, 515 Pa. 622, 531 A.2d 430; Green v. Vinqlas, 431 Pa.Super. 58, 635 A.2d 1070 (1993), alloc. denied, 655 A.2d 515. It is clear that under the facts of this case, Plaintiff failed to make a good faith effort. Certainly, Plaintiff did not effectuate service of the original Complaint upon Defendant Simmons in the manner and within the time period prescribed by Pa. R. C. P. No. 404. Moreover, there is no evidence of any attempts to make service of the original Complaint upon Defendant Simmons. Despite the fact that it is counsel's responsibility to see that service is carried out and to take affirmative action to effectuate service, service of original process was not even attempted in this case. ~~, Feher by Feher, 515 A.2d 317; Weiss v. Eauibank, 313 Pa.Super. 446, 460 A.2d 271 (1983). It is unknown if Plaintiff will offer an explanation for Plaintiff's conduct, but it should be noted that the burden is on Plaintiff to show he or she made a good faith attempt to serve the Complaint when the Complaint is filed but service is not effectuated. Schriver v, Mazziotti, 432 Pa.Super. 276, 638 A.2d 224 (1994), alloc, denied, 650 A.2d 52. Furthermore, it is established law that mere mistake or inadvertence is insufficient to meet the burden of good faith in complying with requirements of Lamp v, Hevman. See Farinacci v, Beav8r County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986); Rosenberq - -I ' , , , IV. Conclusion For all the reasons stated above, Defendant Elliott Simmons, requests that this Honorable Court enter an Order granting Defendant's Motion for Summary Judgment and entering judgment in favor of Defendant Simmons. REYNOLDS & HAVAS A Professional Corporation Date: 5/c../~1 By: Michele J. Thorp Attorney I.D. >>71117 101 Pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Elliott Simmons 6 TABLE OF AUTHORITIES CASES Bcck v, Mineslrnlla, 264 Pa, Supcr. 609, 401 A.2d 762 (1979)..,..........,....,..,..,..,.............. 3 Farinacci v Bcavcr County Industrial Dcvelopmcnt Authority, 510 Pa, 589, 511 A,2d 757 (Pa, 1986)"..""",..""..,."..""......".....,....,...,....".."..""......, ....',....,..'""",.."...."""".."..,'..'"." 4,5,6 Fcher by Feher v, Altman, 357 Pa Supcr 50,515 A.2d 317 (1986)..,....,......,..,..,..........,..,.. 6 Fulco v, Shaffcr, _Pa, Super._686 A,2d 1330, (Pa, Supcr, Ct 1996)..............,..,....,..,...., 6,7 Gould V Nazareth Hosp" 354 Pa, Super, 248, 511 A,2d 855 (1986)....,......,..,..,.............., 4 Hoeke v, Mercy Hospital of PillS burgh, 254 Pa, Super, 520,386 A.2d 71 (1978)........,......8 Jacob v, Ncw Kcnsington, 312 Pa, Super, 533,459 A.2d 350, (Pa, Super, Ct, 1983)........ 4,5 Lamp v, Hevman 469 Pa, 465. 366 A.2d 882 (Pa, 1976)....,......,....,........,..........,..,............ 3,4 Lcidich v. Franklin, 394 Pa,Super 302,575 A.2d 914, (Pa Supcr, Cl. 1990)..........,..........., 4,7,8 Pattcrson v, American Bosch Corporation, 914 F,2d 384, 387 (3rd Cir, 1990).................., 3,6 Shackleford v. Chestcr County Hosp., _Pa, Sup cr._ 690 A.2d 732, (Pa Supcr, Cl. 1997) """",."",.""""""",..'"""""""""",'.",."",.",.."""""""""""""""".","",."".",'"."""""",3,4 RULES AND STATUTES Pa, R, Civ p, ~129 (1997)......,....,..........,..,......,..,..,....,..........,..,............,..........,..,............' 8 Pa, R, Civ, P,~404 (1997)..,..,..,..,......,................,....,..,..,....,..,......,...................,....,..,........ 2 ii COUNTER-STATEMENT OF TilE FACTS This case arise out of a motor vehicle accident which occurred on or about February 21, 1993, on Route 81 North in Middlesex Township, Cumberland County, Pa, At the time of the accident, Plaintiff, a resident of New Jersey, was a passenger in the motor vehicle being operated by her husband, Elliot Simmons, As a result of this accident, PlaintilT sustained serious personal injuries and continues to suITer severe pain and discomfort and has incurred medical bills in excess of$9,OOO,OO, Following the accident, PlaintilTretained the New Jersey law offices of Roche & Carter to rcpresent her in a suit against the defendants named below, In accordance with local practice, Attorney Kimberly Moss of Roche & Carter filed a complaint, along with the necessary filing fees, with the Prothonotary's Office in Cumbcrland County, Carlisle, Pennsylvania, on or about January 31, 1995, This complaint, docket number 95-520, named as defendants, Elliot Simmons, Burlington Motor Carriers, Dale Scaifc, Star Transportation, Inc" and Homer Worley, A copy of the Cumberland County docket activity for the matter involving Patricia Simmons v, Burlinnton Motor Carriers et at. is attached hereto as PlaintilT's exhibit "A," Although the docket does not reflect specific instructions from PlaintilT's counsel regarding service of the complaint, PlaintilT requests this Court to take judicial notice of the fact that the normal practice in Cumberland County is for the prothonotary to forward the complaint to the sherilTfor service, If the service copy is not accompanied with advanced costs for service or if there is some other deficiency, the PlaintilTis notified of the deficiency before service is elTectuated, PlaintilT's counsel receivcd no such notification from the sherin'in this case, On or about February IS, 1995, Roche & Carter forwarded a copy of the original complaint to Mr, and Mrs, Simmons' address in Plainfield, New Jersey, Mrs, Simmons accepted the complaint and her husband, Defendant Elliot Simmons was placed on notice that he had been named as a defendant in this matter. A copy of the letter which accompanied the complaint is attachcd hereto as PlaintilT's exhibit "B," The law offices of Roche & Carter then entered into ncgotiations with Attorney Harold S, Irwin, III for the purpose of transferring Plaintifl's file to him, Due to unforesecn and unintended circumstances, thc ncgotiations were not completed until after May 16, 1995 and after the ninety day period for service upon an out-of-state defendant had expired, Pa, R, Civ, p, ~404 (1997), The process of Attorney Moss's withdrawal ofappearan~e and Attorney Irwin's entry of appearance continued throughout the summer and fall of 1995, On November 2, 1995, Attorney Irwin filed a praecipe to re-instate the original complaint. Immediately following reinstatement, the complaint was served on Defendant Simmons, A copy of the signed certificate of service is allached hereto as PlaintilT's exhibit "c," OUESTION PRESENTED Should Defendant's motion for summary judgment be denied where Defendant was on notice that he was being named as a defendant in PlaintilT's cause of action, where Plaintiff is certain to suffer an injustice far greater than any prejudice to Defendant if Defendant's motion is granted, where Plaintiff can offer a satisfactory explanation for her delay in effectuating service of the complaint upon Defendant, where such delay is attributable to unforeseen and unintended circumstances surrounding the transfer of Plain tilT's file from her original counsel in New Jersey to present counsel of record in Pennsylvania, where no formal arrangements for the transfer were made until after the ninety day period for effectuating service had expired, where present counsel was unaware that the original complaint had not been served and did not formally enter his appearance until after the ninety day period, and where present counsel for Plaintiff attempted to and did serve upon Defendant a copy of the re-instated complaint immediately following entrance of his appearance as counsel of record, Sueeested Answer: Yes 2 ARGUMENT I. The rule espoused in Lamp v. Hevman is inapplicable to the ease at bar, as the local practice in Cumberland County is for Plaintiff to liIe the complaint with the Office of the Prothonotary in order to have the prothonotary deliver the eomplnint to the sheriff for service. Plaintiff initially argues that Lamp v, Heyman, 469 Pa, 465, 366 A.2d 882 (Pa, 1976) inapplicable to the case at bar, By filing the complaint, Plaintiff technically tolled the statute of limitations, Shackleford, v, Chester County Hosp" 690 A.2d 732, 735 (Pa, Super, 1997), Moreover, by filing the complaint, Plaintiff extended the statute oflimitations on her action for two years from the filing date, Id, Plaintiff concedes it is a well settled rule in Pennsylvania that filing of a complaint is sufficient to toll the statute of limitations only if the "plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion," Id, at 889, However, "if under local practice, it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the wril...." Patterson v, American Bosch, 914 F,2d 384,390 (3rd Cir, 1990) (quoting Lamp), In Patterson, supra at 39 I, the court held that "the Lamp requirements were satisfied when the plaintiffs complied in good faith with the procedure for issuing and serving the writ of summons despite a lengthy, III/expected delay between issuance and service on the defendant (emphasis added), citing Beck v, Minestralla, 264 Pa ,Super, 609, 401 A.2d 762 (1979), Plaintiff argues that her New Jersey counsel met the requirements tor tolling of the statute of limitations when Attorney Moss filed the complaint with the office of the prothonotary in Cumberland County on January 31, 1995, with the understanding that the complaint would be delivered to the sherifTby the prothonotary, in accordance with local practice. It was PlaintilT's further understanding that the sheriff would notify Plaintiff should the costs advanced be insufficient to cover the expense of service by the sheriff. No notice was ever given to the Plaintiff that the shcrifThad not served the complaint, nor was Plaintifi'informed that there were insufficient funds 3 , ' advanced at the time of filing to cover the cost of both the liling and serving of the complaint. Plaintiff argues that she should not be disadvantaged due to such errors, errors that were not due to any affirmative action on the part of the plaintiff. See Gould v, Nazareth Hosp" 354 Pa, Super 248, 253, 511 A.2d 855, 858 (1986), II. It was reasonable under the circumstanees for Plaintiff's New Jersey eounsel to file a complaint with the prothonotary in order to toll the statute of limitations and then undertake to negotiate a transfer of Plaintiff's file to Pennsylvania. The rule in Lamp has been interpreted as requiring a "good faith effort" to effectuate notice of commencement of the action, Farinacci v Beaver County Industrial Development Authority, 510 Pa, 589. 594, 511 A.2d 757, 759 (Pa, 1986). However, while there is no mechanical approach to be applied in determining what constitutes good faith on the part of the plaintiff, the "plaintiff must demonstrate that her efforts were reasonable," Shackleford at 733, The intended purpose of the "good faith" requirement is to avoid the situation in which plaintiff can bring an action, but by not making a good faith effort to notify the defendant, can rctain exclusive control over the action for a period in excess of that permitted by the statute of limitations, However, ill each case where non-compliance with Lamp is alleged, the court must determine in its sound discretion whether a "good faith" effort to effectuate notice was made." Farinacci at 759 (cmphasis added); Leidich v, Franklin, 394 Pa,Super. 302, 312, 575 A.2d 914, 918 (Pa Super, Ct. 1990) (holding that allegation of violation of the Lamp rule must be examined on a case by case basis and not subject to mechanical application ofa rule of "good-faith"), In accordance with the case by case approach mandated in Farinacci, IDUilll, Plaintiff argues that Lamp should not be interpreted as automatically binding upon out-of-state counsel who find themselves unfamiliar with the local rules regarding service, but instead, the surrounding circumstances should be taken into account. Jacob v, New Kensington, 312 Pa, Super. 533, 538, 4 459 A,2d 350,352 (Pa, Super, Cl. I 983)(dealing with a layman's misunderstanding of the prothonotary's role in elTectuating service, but refusing to limit its intcrpretation of Lamp to situations involving layman only), In Lamp, counsel for plaintilT made a conscious elTort to stall the legal machinery in its tracks, Here however, ncither New Jcrsey counsel for Plaintiff, nor prescnt counsel engaged in a course of conduct dcsigncd to inhibit the judicial process, PlaintilT argues, undcr thc qualification of the Lamp rule sct forth in Jacob, and Farinacci, supra" hcr New Jersey counsel act cd reasonable and in good faith when she filed the complaint within the statute of limitations period, Service of the complaint was not immcdiately undcrtaken, as Plaintitl's counsel was opcrating under the assumption that filing would be sufficicnt to toll the running of the statute and the complaint would be delivcred to the shcritl's office for service, Once the complaint was filed, counscl for PlaintilT thcn proceeded to enter into negotiations with Attorney Harold S, Irwin, 1II in order to transfer the Plaintitl's file from counsel in New Jersey to a Pennsylvania attorney, Due to unforeseen circumstances, thcse negotiation consumed several months, and as a result, no formal appcarance by Attorney Irwin was cntered until November 8, 1995, after the ninety day period to elTectuate service on an out-of-state defendant had expired, Plaintitl's New Jersey counsel, although cognizant of the ninety day rule, was unaware that service of the complaint had not bccn undertaken by the sheriff, and as a rcsult, no further elTorts wcre taken by Plaintitl's New Jerscy counsel to elTectuate scrvice, Howevcr, once Attorney Irwin cntered his appearance and assumed responsibility for the file, scrvice upon Dcfendant Elliot Simmons was undertaken immcdiately, as Plaintitl's exhibits "A" and "C" demonstrate, This Court should be guided by the language in Farinacci, gmrn,. In Farinacci, the plaintiff's allorney filed a praccipe on the last day of the statute oflimitations, Counsel paid the prothonotary for issuancc of the writ and the writ was issued the next day. Plaintitl's counsel never instructed or paid the shcrilT to scrve thc writ because counscl misplaced the file for nine days. Once the file was found, counsel then forgot to take the necessary steps to elTectuate scrvice of the writ, The writ was eventually re-issucd and served, but only after the statute of limitations had expired, Justice Flaherty, writing for the Majority, agrecd with the lower court 5 that counsel's misplacement of the file was "not necessarily inconsistent with a finding of good faith", however, the Court found the remaining four week delay was "attributable to counsel's faulty memory" and as result, held that "plaintiffs have/ailed 10 pnJllide a/leXplallalio/l for counsel's inadvertence which could substantiate a finding that plaintiff made a good-faith effort to effectuate service...... Id, at 760,(emphasis added), As a result of this language, Farinacci has been interpreted to allow for explanation when it appears that an unintended deviation of the notice requirement has occurred, See Feher by Feher v, Altman, 357 Pa, Super, 50, 515 A.2d 317 (1986), alloc, denied, 515 Pa, 622, 531 A,2d 430; Fulco v, Shaffer, 686 A,2d 1330, 1333 (Pa, Super, Ct, 1996), It must be stressed that there are no allegations by Defendant that Plaintiff"impeded service of the complaint once it was filed or engaged in any other affirmative conduct designed to stall the legal machinery," Patterson at 391. Plaintiff argues that not only were the actions of her counsel reasonable, but they also serve to explain, in accordance with Farinacci, why service upon the Defendant was not undertaken until after the ninety day period proscribed in the Rules had expired, As presented above, Plaintiffs New Jersey counsel attempted to transfer Plaintiffs file to Attorney Irwin, however, no immediate agreement between counsels concerning the specifics of the transfer could be reached, Once an agreement was reached, Attorney Irwin reinstated the complaint and effectuated service upon the Defendant only a short time laller, III. As a result of the parties status as husband and wife and their eohabitation of the marital residence, coupled with the fact that n copy of the eomplaint was sent to and received at the Simmons residence before the expiration of the ninety day period for service of a complaint, Elliot Simmons was on notice, both actual and constructive, of his involvement as a named defendant ill the case at bar. The facts in the case at bar are similar to those in Fulco v, Shaffer. supra, In Shaffer, the plaintiff filed the lawsuit approximately one week before the running of the statute of limitation, Id at 1331. Plaintiff then allempted to effectuate service by mailing copies of the complaint by first class mail simultaneously with service by the sherin: both occurring after the limitation period had 6 expired, Id, Due to plaintitrs failure to adhcre to the Pennsylvania Rules of Civil Procedure concerning deputation outsidc the county in which the cause of action arose and the necessity of signing thc praecipc, formal servicc was not effccted upon the defcndants until sevcn months after the statute of limitations cxpired, The court found that plaintitrs conduct "did not amount to a coursc of conduct designcd to forcstall the case," Id, at 1334, "Most importantly", the court held, was that, "bccause of the mailed complaints, [dcfcndants] were aware actually, ifnot formally, that a lawsuit had bccn commenced and was procecding againstthcm," Id, The same reasoning applied by the court in Shaffer to the facts above must serve as guidance to this Court in interpreting the facts in the casc at bar, First, Plaintiff and Defendant were husband and wifc occupying the same houschold at the timc of the accidcnt and throughout the course of this entire legal procceding, It is difficult to fathom that Defendant Elliot Simmons was unaware that hc was being named as a Dcfendant in his wife's (the Plaintifl) suit, Second, on February 15, 1995 (well within the nincty day pcriod for service), Roche & Carter sent a copy of the complaint to thc residence of Plaintiff and Dcfcndant. As in Shaffcr, this occurred after the running of the statute of limitations, and like Shaffer, the effect was to put Defendant on notice of the commencement of an action against him, As a result of this notice, thcre was no "unfair surprisc" to Defendant. llI, This Court is rcmindcd that the "thrust of all inquiry is whcther a' plaintiff engaged in a course of conduct forestalling the lcgal machinery he has sct in motion," Id, at 1333 (citing Leidich), As in Leidich, there are no allcgations by Defcndant Elliot Simmons that he was prejudiced by the way in which he received notice ofthc lawsuit pending against him, Nor are there any allegations that counsel for Plaintiff undcrtook a conscious effort to delay the workings ofthc lcgal machinery, IV. Granting Defendant's motion for summary judgment would cause an injustice to Plaintiff far greater than any prejudiee that may result to Defendant. If this Honorable Court were to grant Defendant's motion for summary judgment, Plaintiff would be put out of court and forced to suffer unredressed injuries for which she has a pursuablc 7 claim, Plaintiff was an innocent passenger in a motor vehicle, she suffercd and continues to suffer back and ncck discomfort and has incurred medical bills in excess of $9,000,00, Counsel for Plaintiff firmly belicves Plaintiff can rccover on the merits and prays this Court to find that any prejudice to Defendant is fc1r outshadowed by the injusticc Plaintiff would sunbr if Defendant's motion werc granted This is especially true in light of the fact that Elliot Simmons was on notice that he was a named defendant in this maller and the fact that Plaintiff clcarly did not undertake to stall the workings of the judicial process, The court in Leidich, ID!Jilll at 919, held that not every aspect of service is equally critical, so that any defect in process is nccessarily mortal, finding it "impossible to conclude that the defect in service in the instant casc affectcd any substantial right ofthc defendants," Id,(quoting Hoeke v, Mercy Hospital of Pittsburgh, 386 A.2d 71(1978). Plaintiff fails to see how the delay in service ofthc complaint at bar affected a substantial right of Defendant Elliot Simmons, As argued above, Defendant Simmons was on notice as a rcsult of the delivcry of the complaint to his residence, that hc was being namcd as a defendant in the matter in question. Granting Defendant's motion for summary judgment will only scrve to inflict undcservcd hardship upon Plaintiff for inadvcrtent transgressions of thc Rules of Civil Procedure, rules which are intended to be Iibcrally interpreted, Leidich at 919 (citing Pa, R,Civ, p, 9126), CONCLUSION Defendant's motion for summary judgmcnt must be denied, The rule espoused in Lamp v. Heyman and the cases following it require Plaintiff to avoid engaging in a course of conduct designed to forestall the Icgal machinery she has sct in motion, Plaintiff has met the requirements mandated by Lamp and its progeny, As outlined above, the delay in effectuating service upon Defendant Elliot Simmons can be allributed to the unforeseen circumstances surrounding the negations for transfer of Plaintiff's file from New Jersey to Pcnnsylvania, Furthermore, as a result 8 ofDefcndant's marriage to the PlaintilTand the dclivery ofa copy of the complaint to the Simmons' martial residence, Elliot Simmons was put on noticc that he was namcd as a dcfendant in the Plaintiff's cause of action, Finally, the harm that PlaintilTwi1\ suITer should Defendant's motion be granted wi1\ far outweigh any conceivablc harm Defendant may suITer if Defendant's motion is denied, 6 R" ,"fully ~bmillol, Harold S, Irwi , 111 35 East High St ct Suite 201 Carli sic P A, 17012 (717) 243-6090 Attorney for PlaintilT 9 CERTIFICATE OF SERVICE I, Harolr! S, Irwin, 111 Esquire, have served a true and correct copy of the attached briefin opposition to Defendant's motion for summary judgment upon the following persons and in the manner indicated: SERVICE BY FIRST CLASS MAIL: Stephen L, Banko, Jr, Esquire 101 Pine Street Harrisburg, P A 17108-0932 Attorney for Defendant AugustL, 1997 35 East High Street Carlisle, PA 17013 (717) 243-6090 EXHIBIT "A" PYS510 1995-00520 SIMMONS ~umb' land County Prothonotary'r 1ttice Page Civil Case Inquiry . PATRICIA (VS) BURLINGTON ~OTOR CARRIERS tT 1 Reference No..: Case Type.....: COMPLAINT Judgment......: .00 Judge Assigned: HOFFER GEORGE E Filed. . . . . . . . : Time......... : Execution Date Sdt/Dis/Gntd. . Jury Trial. . . . Higher Court 1 Hiaher Court 2 *************************.****...*.*....**************.,........**....*****.*. General Index Attorney Info SIMMONS PATRICIA PLAINTIFF IRWIN HAROLD S III 1203 WEST 5TH STREET PLAINFIELD NJ 07060 BURLINGTON MOTOR CARRIERS 14611 WEST COMMERCE ROAD DANVILLE IN 46122 SCAIFE DALE ROUTE 2 BOX 317 :-!ANY LA 7 144 9 STAR TRANSPORATATION INC 3-15 HILL AVENUE NASHVILLE TN 37201 SIMMONS ELLIOT 1203 WEST 5TH STREET PLAINFIELD NJ 07060 WORLEY HOMER 129 SCHNEBERGER CHAPARRAL NM 88021 JOHN DOE 1 DEFENDANT JOHN DOE 2 DEFENDANT JOHN DOE 3 DEFENDANT ABC CORPORATION DEFENDANT XYZ CORPORATION DEFENDANT ....*****..***..***....*.*.......******.*.*****...**********.*****************. * Date Entries ....******.............***..***.....................**...***.....***..*****.**. 01/31/95 11/02/95 11/08/95 12/06/95 12/27/95 01/11/96 01/18/96 01/25/96 1/31/199<1 0/00H65 : 0/00/0001 DEFENDANT MCMAHON TIMOTHY J DEFENDANT ~CMAHON TIMOTHY J DEFENDANT DEFENDANT DEFENDANT COMPLAINT - CIVIL ACTION PRAECIPE TO REINSTATE THE COMPLAINT BY HAROLD S IRWIN III ESO PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR PLAINTIFF BY KIMBERLY A MOSS ESO AND FOR ENTRY OF APPEARANCE BY HAROLD S IRWIN III ESO ENTRY OF APPEARANCE FOR BURLINGTON MOTOR CARRIERS INC AND DALE SCAIFE BY TIMOTHY J MCMAHON ESO PRELIMINARY OBJECTIONS ON BEHALF OF DEFENDANTS BURLINGTON MOTOR CARRIERS AND DALE A SCAIFE CERTIFICATE OF SERVICE MOTION FOR BANKRUPTCY STAY ORDER - DATED 1/25/96 - IN RE MOTION FOR BANKRUPTCY STAY - STAYED AS TO BURLINGTON MOTOR CARRIERS UNTIL CONCLUSION OF BANKRUPTCY PROCEEDINGS - BY GEORGE E HOFFER J - NOTICE MAILED 1/29/96 ....*.**************************.*...******....**************...***..********** . Escrow Information * Fees & Debits Beg Bal Pvmts/Adi End Bal ***..****.*.*.*******...*.*...**..*****...******,**************************..** COMPLAINT TAX ON CMPLT SETTLE:.lENT JCP FEE 35,00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 ,00 ------------------------ ------------ 45.50 45.50 .00 ....**..*****.*******.....................*.................**.**.****.***.***. · End of Case Information .....................**......................................**....********.... EXHIBIT uB" I EXHIBIT .'C" 'n ,:? . - ~ ~ !:..; ~ ~ E I:l 't;j.. CS:Ej1 u-.... :11 !.i c(J "C.... II ru .., CJ = ~ Ii 0.._ ~ .. > M '4;:S ~ ; ~ ru u~=:: ru ::J Q.I -: : g O:Ui;:!J ',j ~I:i " , ~ ~ :t .:s ~"\ Q , ~ ~ , ., ,- - - J 'I' ~ f. <h <h ., r .... '< " Vi l- - ,',: " 0 ! ~ ,~ ';" : ~ ,> :t' " . ' , , l,l:. oJ ~r :~ " , : ,... " 'J , , '..'; '-U '" r2 I ': ~ : , : , , L .. " C66 L 4OJOV' '008& WJO,j Sd ... -'l DER: ~ . Compl.tell.m. 1 ,ndlo' 2 'ot .ddltlon.1 ..rvk... S . Compl.t. III"" 3. .net 4. . b. . Print YOUI n.me .nd 'dd,... on the I,YIr.. DittY. form 10 that "". can tltur" thl. Clld 10 you. ! . An'th thi. fonn to the ',ont o' the m.llpl.c.. 01 on IhI b.ck U 'PIC. doe. not penNt. ! . Wrft"'R.tumR.ctlpIRIQUHted"onlhlmaa~c.belowthl.rma.numbe' 2. 0 Aeaulcted Delivery . ThlI R.tum Rtnlpl wll ahow to whom tht 1Itlc.. WI' delivered and the dll. 5 d.Uvtlld. 'Consult oltmaat,r for fe.. 1 3, Artlell Add'"...d to: 41, Artlell Numbe, ELL/Or SlIn/l'lOlJ.5 2 ;?ZI 2.?q 03 Ii ...-....4 .... 4b, Slrvlel TY~I II /203 LU!.~:;;)" ~TR6!;r., I 0 RIgIII.rld 1>t.RINF/ELD NJ 070110 .7, .8(Clrtlflld o exp,",. Mill j I j co 1 II 7, 011.01 Olllvlry ... t -, - -- il ... B. Addrl..I.'1 Add,"" (Only If ,"qu""l"d ~ Ind III I. plldl F I 11.0 wl.h to '"e"lv" Ihl following servlco. lIor In extra 1111, 1. 0 Add'....I'1 Add'l.. o In.urld o COO RIlurn Rlellpt la, I 1 I; " .0Ie.mbe'1991 .U.l.OI'O:.-.71. DOMESTIC RETURN RECEIPT ::::: .., ..... ~ ~ ~:t ~ ~~ "- ~ ::q f:~ "'8 e::\i Ill>:! gJ&l ft ~ :Z:1Il ~t1 0 tljUJ !:!:e :t :e :z:;:.: ~~ Qa: f..UJ ~~ :s 1IlQ. '--1~ ~uI a~ "'.... Ct:: ..,!!! ii! ~ oq: u . i /, I! /, ,', 1/1 I I! {j:" , . Harold S, Invin, III Esquire Attorney ID No, 29920 35 Eastlligh Street Carlisle, PA 17013 (717) 243-6090 Attorney for Plaintiff PATRICIA SIMMONS, Plaintiff No. 95.520 CIVIL TERM v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, AND HOMER WORLEY, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Elliot Simmons, Defendant, c/o: Stephen L, Banko, Esquire, counsel for defendant 101 Pine Street Harrisburg, PA 17108-0932 YOU ARE HEREBY NOTIFIED to plead to the enclosed ANSWER AND NEW MA TIER of PLAINTIFF, PATRICIA SIMMONS, within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submilled, Date: i;l!?7 PATRICIA SIMMONS, Plaintiff No. 95 - 520 CIVIL TERM v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, AND HOMER WORLEY, Defendants CIVIL ACTION. LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER IN RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY .JUDGMENT Now, comes the Plaintiff, Patricia Simmons, by her attorney, Harold S, Irwin, III, Esquire, and responds to the Defendant's Motion for Summary Judgment, representing as follows: 1. The averments of fact contained in paragraph one of Defendant's motion are admitted. 2, The averments of fact contained in paragraph two of Defendant's motion are admitted, 3, The averments of fact contained in paragraph three of Defendant's motion are admitted, 4, The averments of fact contained in paragraph four of Defendant's motion are admitted, 5. Thc averments of fact contained in paragraph five ofDefcndant's motion are admitted in part and denied in part, On or about February 15, 1995, the law offices of Roche & Carter forwarded a copy ofthc original complaint to Mr. and Mrs, Simmons' address in Plainfield. New Jcrscy, Mrs, Simmons acccpted the complaint and Mr, Simmons was aware of thc receipt of the complaint and that he was named as a defendant. A copy of the ICller dated February 15, 1995 from Roche & Carter which was attach cd to the original complaint and sent to Mr, and Mrs, Simmons' addrcss is attached hereto as Exhibit "A," 6, The avermcnts of fact contained in paragraph six of Defendant's motion are admitted in part and denied in part, As to Defendant's averment that "no cffort was madc to serve the original complaint upon Dcfendant Simmons," after reasonable investigation, the Plaintiff is without knowlcdge or information sufficicntto form a bclicfas to the truth of this averment, and thcreforc, it is denied, Plaintiff does admit that she has bccn unablc to find any evidence, in the Cumberland County Prothonotary's office or in the filc transferrcd from Roche & Carter, that service of the original complaint was attempted or complcted, However, on or about February 15,1995, thc law offices of Roche & Carter forwardcd a copy ofthc original complaint to Mr, and Mrs, Simmons' address in Plainfield, New Jcrsey, Mrs, Simmons acccpted the complaint and Mr, Simmons was aware ofthc receipt of the complaint and that he was named as a defendant. A copy of the lellcr dated February 15, 1995 from Roche & Carter which was attached to the original complaint and scnt to Mr. and Mrs, Simmons' addrcss is allachcd hcreto as Exhibit "A." Furthermore, on or about June 19, 1995, plaintifrs counscl rcceived a letter from Attorney Brian J. Schu, Dcfendant's counscl of record in the fedcral court mallcr of Patricia Simmons v, Homcr Worley, ct ai, in which Attorney Schu made reference to his receipt of the original complaint. A copy of the Ictter is allachcd hercto as "Exhibit "B," 7, The averments of fact contained in paragraph scven of Defendant's motion arc admitted, 8, The avcrments of fact contained in paragraph eight of Defcndant's motion are admittcd. 9, The averments of fact contained in paragraph nine of Defendant's motion are admittcd, 10, The averments contained in paragraph tcn of Defendant's motion are conclusions of law to which no response is required, Howcver, to the extent that a response may be required, these averments are dcnied for thc reasons set forth in Plaintiffs Ncw Matter below, the avermcnts of which are incorporatcd hcrcin by reference, II, The averments of fact contained in paragraph eleven of Defendant's motion are admitted, 12. The averments contained in paragraph twelvc of Dcfcndant's motion are conclusions of law to which no response is required, Howevcr, to the extent a response may be required, these averments are denicd. To the contrary, the two year statute of limitations to which Dcfendant refers concerns the filing of the complaint, which Plaintiff did accomplish within the two year period 13, The avcrments of paragraph thirtecn of Defendant's motion are conclusions oflaw to which no rcsponsc is required, Howevcr, to the extent a responsc may be required, thcse avcrments are specifically denicd, To the contrary, Dcfendant is not entitled to summary judgment for the reasons stated hcre and in Plaintiffs Ncw Maller bclow, the avermcnts of which are incorporated hcrein by refercncc, WHEREFORE, Plaintiff, Patricia Simmons, demands Defendant's motion for summary judgmcnt be dcnied, NEW MATTER 14, Plaintitrs responses to the averments contained in parngrnphs one through thirteen of Defendant's Motion For Summary Judgment are incorporated herein by reference as ifset forth in their entirety. 15, The Defendant, Elliot Simmons and the Plaintiff, Patricia Simmons, are husband and wife, and Mr, Simmons was aware that Mrs, Simmons was filing a personal injury complaint, that the taw firm of Roche and Carter was going to be representing her, and that he was being named as a defendant in the suit. 16, On or about February 15, 1995, the law offices of Roche & Carter forwarded a copy of the original complaint to Mr, and Mrs, Simmons' address in Plainfield, New Jersey. Mrs, Simmons accepted the complaint and Mr. Simmons was aware of the receipt of the complaint and that he was named as a defendant. A copy of the letter dated February 15, 1995 from Roche & Carter which was attached to the original complaint and sent to Mr, and Mrs, Simmons' address is attached hereto as Exhibit "A," 17, On or about June 19, 1995, plaintitrs counsel received a letter from Attorney Brian J, Schu, Defendant's counsel of record in the federal court maller of Patricia Simmons v, Homer Worley, et al. A copy of the letter is attached hereto as "Exhibit "B," 18, In his letter, Attorney Schu references his receipt of the original complaint, thereby demonstrating again that Defendant was on notice in June of 1995 that he was a named party in the matter in question 19, Allorney Harold S, Irwin, III entered his appcarance for the PlaintilTon Novembcr 2, 1995 and the original complaint was re-instated on the same day, 20. The PlaintilT allempted to serve and did scrve the re-instated complaint upon the Dcfendant, Elliot Simmons, by first class, certificd/return receipt requested mail on Novembcr 6, 1995, A copy of the return receipt sign cd by Mr, Simmons is attached hereto as Exhibit "C," 21. No prejudice to Defendant will result if Defcndant's motion for Summary Judgment is denicd, as paragraphs fifteen through scventeen of PlaintilTs New Matter dcmonstrate that Defendant was on notice of his involvemcnt as a party of record in the matter in question, 22, Extreme prejudice to PlaintilTwill result ifDefendant's motion for Summary Judgment is grant cd, as PlaintilTwill be put out of court with no opportunity to recover on a claim to which she avers thcre is a substantial likelihood for succcss, 23, As Defendant was on notice of his involvcmcnt as a party of record in this matter mthin the ninety day time limit for service following the filing of a complaint, the purpose for which service of original process was designcd has bcen fulfilled. 24, Defendant was served with a copy of the re-instated complaint immediately following Harold S, Irwin, Ill's appcarance as counsel of record in this matter, 25, This Court has discretion to ovcrlook lack of service of original process mandated in Pa, R, Civ, p, 404, and to dcny Defendant's motion for summary judgment and allow PlaintilT to proceed with her case on the merits, 26, The Court should exercisc such discretion in favor of the PlaintilTand dcny Defendant's motion for thc reasons stated above, WHEREFORE, Plaintiff, Patricia Simmons demands Defendant's motion for summary judgment be denied. HAROLD S, IR N, III Attorney Id No. 29 35 East High Street Carlisle, PA 17013 Date: ff/1197 By: Counsel for Plaintiff, Patricia Simmons VERIFICATION The foregoing answer is based upon information which has been gathered by my counsel in the preparation ofthis lawsuit. The language ofthe document is the language of my counsel and not my own, I have read the answer and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the answer is that of counsel, I have relied upon counsel in making this verification, I understand that false statements made herein are subject to the penalties of 18 Pa,C,S,A. Section 4094, relating to un worn falsification to authorities, '"',.111--'1997 i -".' ~-~ ' ,"--p TRICIA SIMMONS ": . ..-........- 'I -- . .. "0__ CERTIFICATE OF SERVICE I, Harold S, Irwin, 111 Esquire, have served a true and correct copy of the attached answer to Defendant's motion for summary judgment upon the following persons and in the manner indicated: SERVICE BY U.S. MAIL: Stephen L, Banko, Jr. Esquire 101 Pine Street Harrisburg, P A 17108-0932 Attorney for Defendant ffii HAROLD S. IR\y ,III Attorncy for Plaintiff August-L, 1997 Attorncy ID. No. 29920 35 East High Strcct Carlislc, PA 17013 (717) 243-6090 EXEI:XDXT ""4.... 62/12/'37 17:15 ROCHE & CARTER A rAI '''~:4SI''N^L c" lltl'\ "\,\TI, \I't ^ TTORNEYS AT LAW RA Y~I.:lNO T R.:x:HE llENISE MULLENS ~I\TER "N,\Wl'IELIN:lI.'N 11'/601.1.."1 ~1I1;IIAEI. 8, NILV~RMAN. LARR Y M. RAUOM~KI M, ROY OAKE KI~18ERLY A, ~I()S.\ I .JERALU f, llE1L.\ ~AL,\ 11',WllllJ ""1'10 'RICHARD A, MINK MIl'H,\EL L P,\RK I llh.'MA> r r:lJTCH^I,L 111 EVERUREEN rt.\Cli E.\.r.'Il.\N<JE, I'll ~7~1~ IlDIl6ll'llOO February 15, 19!15 TELE'X'~IER 11DIl61.,Jl~J INllm'1~19 HIN.\'Jr.ft. ,,^M HI..M &AU IU. P~tri.::ia SiDllllon~ 120) Walt 5ch Strllc Plainfield, N.w Jorloy Rei Pacricia Simmons VI. Burlington Kotor Carri r., Bt al Dear Ms. Sim.on.: Enclo.ed please find a copy of the Complaint file in the above.captionld matter. If you havI any qUI.ciona, pllase do not hesitate to call. " Very truly your.. ROCHE & CARTER, P.A. By' ,/ ' ~,...~. KIMBERLY ,., ........--.,. ...".." UK/na Encl. " LAW OF'F'ICES THI SOVIREIGN BUILDING 808 M....ILTON "'.1.1. ...t.LCNTOWN, PENNS'fLV"'NI. 18101"11I 810"3&'0<41<4 ,....11: 010-43&'151""0 WHITE AND WilLIAMS 'ilZ H.ODON AVENUE WESTMONT, NEW .JIAICV 08100"810 e08'l!!IDD'5300 ,.All: eOIiNt5D'Onl 1600 ONE: LIBERTY PLACE PHILAOELPHIA, PENNSYLVANIA 19103'7:)95 1500 LANCASTER AVENUE PAOLI, PENNS'fLV.NIA 111301'1&00 eI0'151'0<4e8 '.11: OIQ'Zlle-<4aZa 215'004'7000 F'AX; 215'86407123 THREE CMRISTIN" CENTRE '01 NORTH WALNUT STRECT WIL"'INGTON, DELAW.RE 111001'3833 3DI.e&<4'Q.o!Z'" "AX' 30Z.8504'02<4S DIRECT 01.1. NU"'PER (215) 864-6211 June 19, 1995 Harold S. Irwin, III, Esquire 36 South Pitt Street Carlisle, PA 17013 Re: Patricia Simmons v. Homer Worley, et al. Elliott Simmons v. Homer Worley, et al. Dear Mr. Irwin: This will confirm our telephone conversation of June 13, 1995. As discussed, I represent Elliott Simmons as he is a plaintiff in a case now venued in the Middle District of Pennsylvania, arising from the same accident as is involved in your case. Mr. Simmons brought to my attention your Notice of Intent to Take Default. This will confirm our discussion on June 13, 1995 at which time you advised me that Mr. Simmons could disregard that Notice of Intent to Take Default as there had been no service of the Complaint. As I mentioned to you, I forwarded the 10-day notice to Mr. Simmons' liability carrier, State Farm Insurance Company, and have asked them to assign counsel. I have received a copy of the Complaint in your case which you faxed me and I appreciate your courtesy in that regard. As you requested, I enclose a copy of the Complaint in my case. Please call me if you have any questions. Very truly yours, <,(/ CU ?-;;~~chu BJS:mb Enclosure 200DCA96 .1~P5 BXH:IHIT "C" a ; iZ .2 ~ 7 .i tT1 ~~ m : ~ 00 -~;] 0- C ..: 2' tC - 't:I :J.: 'ii I1J -<u~~5 ,E-:.:: ':I .. > ...; ~ ':: ~ ; .:t I ru u... = : 7. I ru :l:l -:: : :: c: U :!.::1~ L " ~ I I~ 0.3 ~, I ~j ~ ."1 ,- ~ 'r ~ ~~ -, :::! ! '01 , -I 1- "" "" . ' I i I I I , I ~f;! ';; 0 - ... l~1 .'~ "~I'':: ~I "<I' 'j , ~I (-I; I' I, :' I: I. " &661 40l'~ '0091: WJO~ Sd I I. , I' I :..: . I': I!: . . , I. I I . I . . /. ., ,: ,.. · E DER: i . ComplfCI h,ml I IndIa' 2 for tddJtlonl1 uMe... : . Coml)l"l lllIM 3. lnet "I . b. ~ . Pnnl you' n.tN and .deS,... on lhe "VII" of thi, 'orm 10 Ihll WI cln . "rum IN, card 10 you. = . An.ch thi, '0"" 10 the f,on1 of 1M m.ifpl.c.. 01 on the b.cklf .plCe .. doe, nal pennh. .a . Wrtc'''A.tumRec''PIR~'ontht~belowthe.rddenumbt, . 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'," 1 " .': I . - '~-=--~_!: ;'~__....:.~..::~,"~ - T .'" , .' ~ ROCHE & CARTER, P.A. 134 Evergreen Place East Orange, NJ 07018 Attorneys for Plaintiff Plaintif COURT OF COMMON PLEAS LAW DIVISION PATRICIA SIMMONS 1203 West 5th Street Plainfield, New Jersey TERM vs. BURLINGTON NOTOR CARRIERS 14611 West Commerce Road Danville, Indiana HOHER WORLEY 129 Schneberger Chaparral, New Mexico: DALE SCAIFE Route 2, Box 317 ~any, Louisiana JOHN DOE 1 (a fictitious name) JOHN DOE 2 (a fictitious name) No. q .,'. ,.Jv ~..:;I -r.;.l- STAR TRANSPORTATION INCORPORATED 3-15 Hill Avenue Nashville, Tennessee JOHN DOE 3 (A fictitious name ELLIOT SIMMONS 1203 West 5th Street Plainfield, New Jersey ABC CORPORATION (a fictitious name) XYZ CORPORATION (a fictitious name) COMPLAINT IN CIVIL ACTION NOTICE You have been sued in court. If you wish to defend against the cliams set forth in the following pages you must take action with twenty (20 days after this complaint and notic are served, by entering a written appearance personally or by attorney or by filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiffs. You may lose money or property or other rights important to you. I I . I ! i h I I' C-' L .1:' 'oJ q -f L. ., .,... .OJ / !I 1 '-J ".j<) 'I . ',... ., ) : '/11 ....J ;;;~ ~J -<; - " (.... , -'~:. 5. ....' ) - ~-; .') ,. ~ ~'.) :1"'1 ':J " YOU SHOULD TAKE THIS PAPER TO YOUR LAWYERS AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT ~IERE YOU CAN GET LEGAL HELP. PROTHONOTARY LAWRENCE WELKER CUMBERLAND COUNTY COURTHOUSE CARLISLIE, PENNSYLVANIA Telephone: (717) 240-6195 .' COMPLAINT AND CIVIL ACTION 1. Plaintiff, Patricia Simmons is an individual and citizen of the City of Plainfield, State of New Jersey and at all times relevant hereto, maintained a residence at 1203 West 5th Street, Plainfield, New Jersey. 2. Defendant, Burlington Motors Carriers is a corporation in the City of Daleville, and State of Indiana and at all times relevant hereto, had a mailing address of 14611 West Commerce Road, Daleville, Indiana. 3, Defendant, Dale A. Scaife is an individual and citizen of the City of Many and State of Louisiana and at all times relevant hereto maintained a mailing address at Route 2, Box 317, Many, Louisiana. 4. At all times relevant hereto, defendant, Burlington Motor Carriers acted through its agent and/or servants, and/or workman and/or employees within the scope of there employemnt and responsibility here under is invoked pursuant to the doctrine of respondent superior. 5. Defendant, Star Transportation Incorporated is a corporation of the City of Nashville and State of Tennessee and at all times relevant hereto had a mailing of 345 Hill Avenue, Nashville, Tennessee. 6. Defendant, Homer Worley is an individual and resident of the City of Chaparral and the State of New Mexico and at all times relevant hereto, had a mailing address of 129 Schneberger, Chaparral, New Mexico. 7. At all times relevant hereto, defendant, Star Transportation, Inc., acted through its agents and/or servants and/or workman and/or employees within the scope of there employment and responsibility here under is invoked pursuant to the doctrine of respondent superior. 8. Defendant, Elliot Simmons is an individual and citizen of the City of Plainfield, and State of New Jersey and al all times relevant hereto maintained a residence at 1203 West 5th Street, Plainfield, New Jersey. .' 9. Defendant. John Doe 1 is a fictitious namc. 10. Defendant, John Doe 2 is a fictitious name. 11. Defendant, John Doe 3 is a fictitious name. 12. Defendant. ABC Corporation is a fictitious name. 13. Defendant, XYZ Corporation is a fictitious name. COUNT I 1, Patricia Simmons v. Burlington Hotor Carriers Corporation. Dale A. Scaife, Star Transportation Incorporated. Homer Worley, Elliot Simmons. John Doe 1, John Doe 2 John Doe 3, ABC Corporationa and XYZ Corporation. 2. On or about February 21, 1993 at or about 5:00 p.m.. on Route 81 North. in the vicinity of it SH 490 in Hiddlesex Township, Cumberland County. Pennsylvania. the plaintiff was a passenger in a vehicle owned and operated by defendant, Elliot Simmons and/or defendant, John Doe that was violently struck from the rear by the vehicle owned by defendant, Star Transportation, Inc, and operated by defendant, Homer Worley and/or defendant, John Doe causing the Siunnons' vehicle to strike the vehicle owned by defendant, Burlington Hotor Carrier and/or XYZ Corp. and operated by defendant, Dale A. Scaife. 3. The negligence. recklessness and carelessness of the defendants consisted of the following: a. Failure to have the vehicles under proper and adequate control; and/or b. Operating said motor vehicles in a careless, reckless and negligent manner; and/or c. Failing to operate the said motor vehicles without due regard for the rights. safety and point of position of plaintiffs; and/or d. failing to properly apply the brakes and braking mechanism of the said motor vehicles; and/or e. Failing to avoid said collision; and/or f. Failing to keep a proper lookout for traffic; and/or g. Other acts or ommissions of the law which may be developed with continuing discovery and trial of this case. 3. Solely as a result of the negligence, recklessness and carelessness of the defendants acting as aforesaid, the plaintiff, Patricia Simmons was caused to sustain serious personal injuries in and about the person, including but not limited to an post traumatic chronic cervical sprain/strain, posttraumatic chronic lumbosacral sprain/strain, cervical radiculitis of the right side, posttraumatic headaches, muscle spasms of the lumbosacral region, muscle spasm of the cervical region, sciatic nevitis of the left lower extremities and lumbosacral radiculitis as well as a severe shock of her nerves and nervous system and was or may have other- wise been injured which may be permanent in nature. 4. Plaintiff may have sustained other injuries and preexisting consditions may have been aggravated. 5. Further, as a direct result of this accident, plaintiff may have suffered a loss of earnings capacity and power, which may continue into the indefinite future all to her great detriment and loss. 6. As a direct result of the aforementioned accident, plaintiff has suffered great pain and suffering and may continue to suffer for an indefinite period into the future. 7. Plaintiff in no manner contributed to her injuries, which was the direct negligence, carelessness, and recklessness of the defendants named herein. mlEREFORE, Plaintiff, Patricia Simmons demands judgment in her favor and against the defendants, Burlington Motor Carriers Corporation, Dale Scaife, Star Transportation Inc" Homer Worley, Elliot Simmons, John Doe I, John Doe 2, John Doe 3, ABC Corp., and XYZ Corp. JoIntly and nuvurely in /In amount not in excess of TWENTY-FIVE THOUSAND ($25,000.00) IJOI,1.AKS. KOCIlE & CARTER, P.A. Attorneys for Plaintiff ~ '/A"'A~ By: c~ '%"'. ~ K(m erly A. Moss, Esq. For the Firm Dated: January 24, 1995 PAPPERS MAY BE SERVED UPON US AT: J. MOORE & ASSOCIATES Suite 1320 One Penn Center 1617 JFK Boulevard Phildelphin. Punnnylvanin 1913U .. - --:. .. ........ '&' '-~-.'-""- . ,. -,- . . VERIFICATION I verify that the statements made in the foregoing writings and any attachments thereto are true and correct to the best of my information and belief, I understand that false statements therein are made subject to the penalties of 18 Pa. C.S. Sec. 4904, relating to unsworn falsification of authorities. //;J#/J Kim~erly A. Moss~ Esq. For the Firm DATED: January 24, 1995 : : .... .'\ I i p '--' '.,. .. ~ t" ~l j ~ .. ~ .J: '" ~"\ ,0 ~ [, d t' ~ tl' ~I ~ f r , . # ~-.'. -- -- or ~ <..t:, t..r, ~~~ ,. ~ f \).1. t \; c ~ ...~ , t l ::!~-,.. . . V 'LJ r .." ...., '"' I, '. . : : " . , . :: ~~ "u, q:~ ~. , o;~i -i~: :r. , ~. 0: : Z;~~-'l O;::P'_ ~: \Q >; ;,,\ ~i :\.', ~ HAROLD S, IRWIN, III, ESQUIRE A'ITORNEY ID NO. 29920 36 SOUTH PI'IT STREET CARLISLE, PA 17013 (717) 243-61190 A'ITORNEY FOR PATRICIA SIMMONS, PlaintilT : IN TilE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY Defendants : NO. 95 - 520 CIVIL TERM : JURY TRIAL DEMANDED ~ TO THE PROTHONOTARY: Please re-instate the Complaint filed in the above matter filed on January 31, 1995. November 2, 1995 36 South Pitt Street Carlisle, PA 17013 (717) 243-6090 Supreme Court I.D. NO. 29920 . . ROCHE & CARTER. P.A. 134 Evergreen Place East Orange. NJ 07018 Attorneys for Plaintiff . ..; it:: COpy FROM RECORrJ I \'\u_ to t ny l;and In 1 ozlllllQlJI} wheroof. , MIa un GO' F at\': thO seal 01 said COU~ at Carlisle. (~~~ I 3/",'" day o'~~""'."~' 19 Th ~ CFr- u. '"111.,..< '~~Ij - Pnl\1JUl..AafY Plaintif COURT OF COMMON PLEAS LAW DIVISION PATRICIA SUIMONS 1~03 West 5th Street Plainfield, New Jersey TERN vs. BURLINGTON MOTOR CARRIERS 14611 West Commerce Road Danville, Indiana HOMER I/ORLEY 129 Schneberger Chapar::al. New Mexico: DALE SCAIFE Route 2. Box 317 Many, Louisiana JOHN DOE 1 (a fic~itious name) STAR TRANSPORTATION INCORPORATED 3-15 Hill Avenue Nashville, Tennessee JOHN DelE 2 (a fictitious name) No. JOHN De'E -3 (A fictitious name ELLIOT SIMMONS 1203 West 5th Street Plainfield, New Jersey ABC: CORPORATION (0 fictitious name) xn CORPORATION (a fictitious name) , . , COMPLAINT IN CIVIL ACTION I ~. I NOTICE I I You have been sued in court. If you wish to jefend against the cliams set forth in the I following pages you must take action with twenty (20 days after this complaint and notice are served. by entering a written appearance ?ersonally or by attorney or by filing I in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do s) the case may proceed without you and a judgment may be entered against you by the COJrt without further notice for any money claimed in the complaint or for any other clalm or relief requested by the plaintiffs. You may lose money or property or other right.l important to you. , L ~OU SHOULD TAKE THIS PAPER TO YOUR LAWYERS AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TilE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL IIELP. PROTHONOTARt LAWRENCE WELKER CUMBERLAND COUNTY CJURTIIOUSE CARLISLIE, PENNStLVANIA Telephone: (717) 240-6195 . . COMPLAINT AND CIVIL ACTION 1. Plaintiff, Patricia Simmons is an individual and citizen of the City of Plainfield'I,: I State of New Jersey and at all times relevant hereto, maintained a residence at 1203 West 5th Street, Plainfield, New Jersey. 2. Defendant, Burlington Motors Carriers is a corporation in the City of Daleville, and State of Indiana snd st all times relevant hereto, had a mailing address of 14611 West Commerce Road, Daleville, Indiana. 3. Defendant, Dale A. Scaife is an indiviiual and citizen of the City of Many and State of Louisiana and at all times relevalt hereto maintained a mailing address at Route 2, Box 317, Many, Louisiana. 4. At all times relevant hereto, defendan:, Burlington Motor Carriers acted through its agent and/or servants, and/or workman .md/or employees within the scope of there employemnt and responsibility here under Ls invoked pursuant to the doctrine of respondent superior. 5. Defendant, Star Transportation Incorpol'ated is a corporation of the City of Nashville and State of Tennessee and at al:. times relevant hereto had a mailing address of 345 Hill Avenue, Nashville, Tennessee. 6. Defendant, Homer Worley is an individul.l and resident of the City of Chaparral and the State of New Mexico and at all times rElevant hereto, had a mailing address of 129 Schneberger, Chaparral, New Mexico. 7. At all times relevant hereto, defendant, Star Transportation, Inc" acted through its agents and/or servants and/or workman End/or employees within the scope of there employment and responsibility here under is invoked pursuant to the doctrine of respondent superior. 8. Defendant, Elliot Simmons is an individual and citizen of the City of Plainfield, and State of New Jersey and al all times relevant hereto maintained a residence at 1203 West 5th Street, Plainfield, New Jersey. , . 9. Defendant, John Doe 1 is a fictil:ious name. 10. Defendant, John Doe 2 is a fictitious name. 11. Defendant, John Doe 3 is a fictitious name. 12, Defendant, ABC Corporation is a fic titious name. 13. Defendant, XYZ Corporation is a I ic titious name. COUNT I 1. Patricia Simmons v. Burlington Motor Carriers Corporation, Dale A. Scaife, Star Transportation Incorporated, Homer Worley, Elliot Simmons, John Doe I, John Doe 2 John Doe 3, ABC Corporationa and XYZ Corporltion, I 1 / the! 2. On or about February 21, 1993 at: 0:" about 5:00 p.m.. on Route 81 North, in vicinity of it SM 490 in Middlesex Towshb, Cumberland County, Pennsylvania, the plaintiff was a passenger in a vehicle ownell and operated by defendant, Elliot Simmons and/or defendant, John Doe that was violently struck from the rear by the vehicle owed by defendant, Star Transportation, In<:. and operated by defendant, Homer Worley and/or defendant, John Doe causing the Simmons' vehicle to strike the vehicle owed by defendant, Burlington Motor Carrier and/e.r XYZ Corp. and operated by defendant, llale A. Scaife. 3. The negligence, recklessness and carelessness of the defendants consisted of the following: a. Failure to have the vehicles under proper and adequate control; and/or b. Operating said motor vehicles in a careless, reckless and negligent manner; and/or c. Failing to operate the said motor vlhicles without due regard for the rights, safety and point of position of plaintiffs; .1nd/or d, failing to properly apply the brake:1 and braking mechanism of the said motor vehicles; and/or e. Failing to avoid said colUsion; and/or . . f. Failing to keep a proper lookout for traffic; and/or g. Other acts or ommissions of the law which may be developed with continuing discovery and trial of this case, 3. Solely as a result of the negligence, recklessness and carelessness of the defendants acting as aforesaid, the plaintiff, Patricia Simmons was caused to sustain serious personal injuries in and about the person, including but not limited to an post traumatic chronic cervical sprain/strlin, posttraumatic chronic lumbosacral sprain/strain, cervical radiculitis of the right side, posttraumatic headaches, muscle spasms of the lumbosacral region, muscle spasm of the cervical region, sciatic nevi tis of the left lower 'lxtremities and lumbosacral radiculitis as well as a severe shock of her nerves ant! nervous system and was or may have other- wise been injured which may be permanent ill nature. 4. Plaintiff may have sustained other injuries and preexisting consditions may have been aggravated. 5. Further, as a direct result of this accident, plaintiff may have suffered a loss of earnings capacity and power, which may continue into the indefinite future all to her great detriment and loss. 6. As a direct result of the aforementioned accident, plaintiff has suffered great pain and suffe~ing and may continue to suffer for an indefinite period into the future. 7. Plaintiff in no manner contributed to her injuries, which was the direct negligence, carelessness, and recklessness "f the defendants named herein. WHEREFORE, Plaintiff, Patricia Simmons demands judgment in her favor and agains t , I Star Transportation', the defendants, Burlington Motor Carriers Cllrporation, Dale Scaife, Inc., Homer Worley, Elliot Simmons, John DOll 1, John Doe 2, John Doe 3, ABC Corp., , . and XYZ Corp. jointly and severely in sn amllunt not in excess of TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS, ROCHE & CARTER. P.A, Attorneys for Plaintiff ~.. ,.'.~/.""'~ By: W,/f/" '7 K m erly A, Moss, Esq. For the Firm Dated: January 24, 1995 PAPPERS MAY BE SERVED UPON US AT: J. MOORE & ASSOCIATES Suite 1320 One Penn Center 1617 JFK Boulevard Phildelphia, Pennsylvania 19130 . . VERIFICATI!lli I verify that the statements made in the foregoing writings and any attachments thereto are true and correct to the best of my information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S, Sec. 4904, relating to unsworn falsification of authorities. ~ Kimberly A. Moss; Esq. , For the Firm DATED: January 24, 1995 :f q In ~n ~ ,'~ ;0- ,I. ~_ ~r 1', l.,.-\~I '-' '. '-.'..~ ~~ ~r' :~_;?~ (J ~. ~ ',~ '~l ~.-; .\111 \~j I.. .;, ..~ .' Iii". : ~', :i;~ J '"t-" = 0- ~,;; .~;.., <"'-.J .~ ;, ..'- - . , ~ .. ~ Q ~.~ ii ~~~ ~~ ~~ o~~ b:~ ~~ ~ II: ~ ~ .:. ' :5~~ ~ ~~ C)oq: CI)~ ~ :l!!9 ~ ~. , LAW OFFICES HAROLD S,/RWIN. III . . complaint against the Defendant for compensation for her personal injuries with the Court of Common Pleas of Cumberland County on January 31, 1995. Filing of the complaint was made within two years from the date of the accident and therefore tolled the applicable statute of limitation for a personal injury claim which is two years pursuant to 42 Pa.C.S.A. !i 5524. WHEREFORE, the Plaintiff, Patricia Simmons, demands judgment against the Defendant as set forth and requested in her complaint. January :2Q..., 1997 -', Harold S. Invin, II Supreme Court 1.0. 35 East High Street Suite 201 Carlisle, Pa 17013 (717) 243-6090 FAX (717) 243-9200 CERTIFICATE OF SERVICE I, Harold S. Irwin, III, hereby certify that I served a true and correct copy of the forgoing document by first-class mail upon the following parties on the following date pursuant to Pa.R.C.P., Rule 440: Steven L. Banko, Jr. Attorney for Elliot Simmons 101 Pine Street Harrisburg, Pa 17108-0932 Timothy J. McMahon Attorney for Burlington & Scaife Marshall, Dennehey, Warner, Coleman & Goggin 100 Pine Street Harrisburg, Pa 17108-0803 Kevin E. Osborne Attorney for Star Transportation Thomas, Thomas & Hafer 305 North Front Street Harrisburg, Pa 17108-0999 Mr. Homer Worley 124 Schneberger Chaparral, New Mexico 88021 ~ January.30 , 1997 35 East High Sh'eet Suite 201 Carlisle, Pa 17013 . ' " ' ~ ~ ~ ". " ~ . ,.. -' . . , ~. " ' .. ~. ~ ....... , ,~:.w-... - ~ ~... -- <r" I . -- ".:. I ' ',' i' ,', . ", , . .' ,--.-..- ----: ." ,': . ,., " j. , ll! , , I ' Ii. , J r' ~ i : ' II" I r. r. l,1 r-.. Ul' ~~ . . ~~ Ul . In lj.l D: U ,J ;:::: ... A.~ lj.l iii Z c: ~ A. ...-1 H H III ...... ~ Z +' ~ 'tl ~~ ~ o . ::: UlC: . . c: W~ ~~ ~O Z...-I ~ ZUl aJ ~ o III U~OZ><lj.l 13 ~~ S~ 'N ~;;: I'.HOrilaJ ~~ !! ZlIl D:~~~pjO II ~>! 0 01 H ~......'!= I'.U HlIl Ul . ~UE-<H~ Qc,j~ ~!:! 0 E-<cn :> OUlD:Ul :i: ~~ 0 U ~ o . it Q II: t;~ '" .. ~~ ~. H ::;:~p.,E-<~ ~~ HO U Z~~~~ :5 ~ ~ ~ur H act ... HZ D: 00 0-10 ~~ U~ :> E-< E-< 0-1:I: ~ ~~ H ..: (!l E-<rLl ~ II: U A. Z 13 H ~ E-<U pj zr.. ::> Ul HO "l - ::; .. -l -J.~ - Ii ~ ~ \I 0 c.l Z IoJ ~ o o II ~ l> I a Jl Ii f ,. m fl ~ 1-< .. m Z 'II:oo~ 0 20" fr- '~m 1 ~ 0 r 0 '" 0- (I) ~~lIIcf~ ~~d J: .. ~. ~ g ) i ~ ~ ~ CIl Il ~ c.l IoJ (") \0 0 c:: -1 -" ,~ c... =J .- -unl :r." ,i\:n [r1n~ :z: ~~ ':::f' - ;::r.;: Ul (I) ..:~ ,- -..... . C~:H r::CI --u ="";(' ". i)f: t_. , -. :? ,\ '" . o...:..!l . W ':-1 ?~-~ .. 't.. ". ,,, ~ "-l CO _I': COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff No. 95 - 520 civil Term v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY, . . CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: patricia Simmons, Plaintiff c/o Harold S. Irwin, IIIr Esquire, counsel for Plaintiff 36 South Pitt street Carlisle, Pennsylvania 17013 YOU ARE HEREBY NOTIFIED to plead to the enclosed ANSWER AND NEW MATTER OF DEFENDANT, ELLIOTT SIMMONS, within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submittedr REYNOLDS & HAVAS A Professional corporation Date: '1/3t?l By: L Bankor Jr. y I.D. #41727 101 pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Elliott Simmons COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff No. 95 - 520 civil Term v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT, ELLIOTT SIMMONS. TO PLAINTIFF'S COMPLAINT 1. Admitted. 2. Denied. 3. Denied. 4. Denied. 5. Denied. 6. Denied. 7. Denied. B. Admitted. 9. Denied. 10. Denied. 11. Denied. 12. Denied. 13. Denied. Count I 1. Denied. After reasonable investigation Defendant, Elliott Simmons ("Defendant"), is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph andr thereforer they are denied. 2. Admitted in part and denied in part. It is denied that the motor vehicle accident occurred at approximatelY 5:00 p.m. Furthermore, it is specifically denied that plaintiff was a passenger in a vehicle owned and operated by John Doe. With respect to all other allegations as to the identity of the parties and ownership of vehicle, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as , to the truth of said averments and, therefore, they are denied. 3(a) - (f). Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. 3 (g). Pursuant to a stipulation entered into among counsel for the parties, this subparagraph has been withdrawn and no answer on the part of Defendant is required. 3 [sic] . Denied. 4. Denied. 5. Denied. 6. Denied. 7. Denied. - 2 - WHEREFORE, Defendant, Elliott simmons, demands judgment in his favor and against Plaintiff. NEW MATTER 8. The answers contained in the paragraphs of Plaintiff's complaint are incorporated herein by reference as if set forth in their entirety. 9. Plaintiff's claim, is barred by the applicable statute of limitations. WHEREFORE, Defendant, Elliott simmons, demands judgment in his favor and against Plaintiff. REYNOLDS & HAVAS A Professional corporation Date: I) 131ql By: . Banko, Jr. I.D. #41727 101 pine street Harrisburg, PA 17108-0932 (717) 236-3200 counsel for Defendantr Elliott Simmons - J - .--.' \. VERIFICATION t Ir Elliott simmons, depose and say, subject to the penalties of 18 Pa.C.S.A., Section 4904, relating to unsworn falsification to authorities, that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. ? c"' . /::-} 'r-/.":;>- /& Date . '. . ,<':;-'-7---' ._--C~--'-_..--;:::" '---.-- " ,.-..( ,,~, Elliott Simmons I, I' ; CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the /.-;' ,rAday of January, 1997, , , I.. I' , ' I, addressed as follows: Harold S. Irwinr III, Esquire 36 South pitt Street Carlisle, PA 17013 (counsel for plaintiff) Timothy J. McMahon, Esquire Marshallr Dennehey, Warner, Coleman & Goggin 100 Pine street Harrisburg, PA 17108-0803 (Counselr Burlington & Scaife) Kevin E. osborne, Esquire Thomas, Thomas & Hafer 305 North Front Street Harrisburg, PA 17108-0999 (counsel for Star Trans.) Mr. Homer Worley 124 Schneberger Chaparral, New Mexico 88021 (Defendant) REYNOLDS & HAVAS A Professional corporation By: ~' I, ~ <:' //~ "l/,'/. ' :~ ~ aron Dell-Gallag , Secretary 3273 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff No. 95 - 520 Civil Term v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of , 1997, upon consideration of the Motion of Defendant, Elliott Sinunons, for Summary Judgment, it is hereby ORDERED and DECREED that Defendant Sinunons' Motion is GRANTED and judgment is entered in favor of Defendant Sinunons. BY THE COURT, J. \ 4. At the time of the filing of the Complaint, Defendant Simmons lived outside the Commonwealth of Pennsylvania. 5. Plaintiff did not serve the Complaint upon Defendant Simmons within the ninety (90) day period mandated by Pa.R.C.P. No. 404. s..e.e. Exhibi t "A". 6. No effort was made to serve the original Complaint upon Defendant Simmons. Plaintiff admits that she has been unable to find any evidence, in the Cumberland County Prothonotary's office or in the file which was transferred from Roche and Carter, that service of the original Complaint upon Defendant Simmons was attempted or completed. s..e.e. Nos. 4, 5, 6 and 7 of Plaintiff's Answers to Defendant's Request for Admissions. A copy of Plaintiff's Answers to Defendant's Request for Admissions is attached hereto, incorporated herein by reference and marked as Exhibit "B". 7. On or about November 2, 1995, Plaintiff's original attorney, Kimberly Moss, Esquire, withdrew from the instant case and attorney Harold S. Irwin, III, Esquire, entered his appearance for Plaintiff. s..e.e. Exhibit "A". 8. On or about November 2, 1995, Plaintiff filed a Praecipe to Reinstate Complaint. Thereafter, Plaintiff's Complaint was served upon Defendant Simmons, s..e.e. Exhibit "A" and Exhibit "B", Nos. 8, 9 and 10. 9. On or about January 13, 1997, Defendant Simmons filed an Answer and New Matter to Plaintiff's Complaint. 2 ---........ 10. Paragraph 9 of Defendant's New Matter asserts the affirmative defense that the Plaintiff's claim is barred by the applicable statute of limitations. 11. A period of over two years elapsed between the time of the accident and service of the Complaint upon Defendant simmons, ~ Exhibit "A" and Exhibit "B", No. 11. 12. This two year period exceeds the statute of limitations for injuries sustained in a motor vehicle accident pursuant to 42 Pa.C.S.A ~5524. 13. Therefore, Defendant S!nunons is entitli:!d to sununary judgment in this case. WHEREFORE, Defendant, Elliott Simmons, prays this Honorable Court enter an Order granting summary judgment in favor of Defendant. REYNOLDS & HAVAS A Professional Corporation Date: S /, 191 By: Michele J. Thorp Attorney I.D. #71117 101 Pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Elliott Simmons 3 . . exhibit A . "...'.'''" '. ,. """ () . PYS510 . 1995-00520 SIMMONS Cumberland County Prothonotary's Office page Civil Case Inquiry PATRICIA (VS) BURLINGTON MOTOR CARRIERS ET 1 Reference No..: Filed........: 1/31/1995 Case Type.....: COMPLAINT Time..!......: 11151 Judgment......: ,00 Execut on Date 0/001.0000 Judge Assigned: HOFFER GEORGE E Sat/Dis/Gntd.. 0/00/0000 Jury Trial.... Higher Court 1 HiClher Court 2 ....***************************************************i.._..**.*..*.*...._..... General Index Attorney Info SIMMONS PATRICIA PLAINTIFF IRWIN HAROLD SIll 1203 WEST 5TH STREET PLAINFIELD NJ 07060 BURLINGTON MOTOR CARRIERS DEFENDANT MCMAHON TIMOTHY J 14611 WEST COMMERCE ROAD DANVILLE IN 46122 SCAIFE DALE DEFENDANT MCMAHON TIMOTHY J ROUTE 2 BOX 317 MANY LA 71449 STAR TRANSPORATATION INC DEFENDANT 3-15 HILL AVENUE NASHVILLE TN 37201 SIMMONS ELLIOT DEFENDANT 1203 WEST 5TH STREET PLAINFIELD NJ 07060 WORLEY HOMER DEFENDANT 129 SCHNEBERGER CHAPARRAL NM 88021 JOHN DOE 1 DEFENDANT JOHN DOE 2 DEFENDANT JOHN DOE 3 DEFENDANT ABC CORPORATION DEFENDANT XYZ CORPORATION DEFENDANT ******************************************************************************** * Date Entries * .******************************************************************************* 011./31/95 11 02/95 11108195 12/06/95 12/27/95 01/11/96 01/18/96 01/25/96 COMPLAINT - CIVIL ACTION PRAECIPE TO REINSTATE THE COMPLAINT BY HAROLD S IRWIN III ESO PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR PLAINTIFF BY KIMBERLY A MOSS ESO AND FOR ENTRY OF APPEARANCE BY HAROLD S IRWIN III ESO ENTRY OF APPEARANCE FOR BURLINGTON MOTOR CARRIERS INC AND DALE SCAIFE BY TIMOTHY J MCMAHON ESO PRELIMINARY OBJECTIONS ON BEHA~F OF DEFENDANTS BURLINGTON MOTOR CARRIERS AND DALE A SCAIFE CERTIFICATE OF SERVICE MOTION FOR BANKRUPTCY STAY ORDER - DATED 1/25/96 - IN RE MOTION FOR BANKRUPTCY STAY - STAYED AS TO BURLINGTON MOTOR CARRIERS UNTIL CONCLUSION OF BANKRUPTCY PROCEEDINGS - BY GEORGE E HOFFER J - NOTICE MAILED 1/29/96 .******************************************************************************* * Escrow Information * * Fees & Debits BeCl Ba1 Pvmts/Ad1 End Ba1 * .*******************************-*********************************************** COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE 35.00 35.00 .00 .50 .50 .00 5,00 5.00 .00 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 ,00 **************.*.*************************************************************** * End of Case Information * ***************************************************************.***.************ Exhibit B .U".,'.'It......",..'. ItI" _Ionl" @ .' ',. '"..' "t .,." ',~," ,..."'.~~~-~.-.-;.;'-~'.. ';-",', IIAROLD S, IRWIN, III" ESQUIRE ATIORNEY ID NO, 299211 35 EAST IIIGII STREET SUITE 2111 CARLlSLE,PA 171113 (717) 243-61190 ATIORNEY FOR PLAINTIFF PATRICIA SIMMONS, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. BURLINGTON MOTOR : CIVIL ACTION NO. 95 - 520 CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLlO'IT SIMMONS, lInd HOMER WORLEY, Defendanls : JURY TRIAL DEMANDED ANSWERS TO ELLIOTI SIMMONS'S REQUEST FOR ADMISSIONS AND REQUEST FOR THE PRODUCTION OF DOCUMENTS I, Patricia Simmons, plaintiff, by my attorney, Harold S. Irwin, III, provide the following answers and responses to the request for admissions and request for production of documents served upon me by the defendant, Elliott Simmons on February 11. 1997, representing as follows: . . 2. Plaintill's action arises out of a motor vehicle accident which occurred on February 21, 1993. Response: It is admitted that the accident occurred on or about February 21, 1993. ., 3. The instant action was commenced by Complaint which was filed on January 31, 1995 ({esoonse: It is admitted that the plain tilT's clluse or IIction WIIS commenced by the filing or II complaint with the Cumberland County Prothonotary on January 31,1995. By lVay orrurther response, the complaint WIIS filed by the plllintilT's previous attorney, Kimberly Moss, rrom the law firm or Roche & Cllrter located in East Orange, New ,Jersey. 4. The Complaintliled on January 31, 1996, was not forwarded to the Sheriff of Cumberland County for servIce upon any of the Defendants. Response: Plaintiff cnnnot admit or deny request for ndmission #4 with nny certainty becnuse nt the time the original complaint WIIS liIed, the plnintilT's Cllse wns being handled by Kimberly Moss with the law firm of Roche & Cllrter. The plnintiff can admit thntthe plaintiff hns been unllble to find in the Cumberlnnd County Prothonotary's office or in the liIe which was transferred from Roche & Cllrter nny evidence thnt the complaint WIIS fonvarded to the Sheriff of Cumberlnnd County for service upon IIDY of the defendnnts nt the time the complaint was filed, '- , 5. No effort was made at selVing the original Complaint upon Defendant. Elliott Simmons, by certified mail or as otherwise allowed by the Pennsylvania Rules of Civil Procedure. Response: Plaintiff cannot admit or deny request for IIdmission 115 with any certainty because lit the time the original complaint was filed, the plaintiff's case was being handled by Kimberly Moss with the law firm of Roche & Carter. The plaintiff can IIdmit that the pili in tiff has bccn unable to find in the Cumberland County Prothonotary's office or in the file which was transferred from Roche & Carter any evidence that the original complaint was served upon the defendant, Elliott Simmons, by certified mail or as othcnvise II110wed by the Pennsylvania Rules of Civil Procedure. By WilY offurthcr response, the defendant, Elliott Simmons,lInd the plaintiff Patricia Simmons lire husbllnd IInd wife, IInd Mr. Simmons WIIS IIwlIre that Mrs. Simmons WIIS filing a personal injury complllint, that the law firm of Roche & ClIrter WIIS going to be representing her, IInd thllt he WIIS heing named as II defendant in the suit. Furthermore, 011 or IIbout Februllry 15, 1995, the law offices of Roche & Carter fonvarded II copy of the original complaint to Mr. and Mrs. Simmons's address in PllIinlield, New .Jersey. :\'Irs. Simmons accepted the complaint IInd Mr. Simmons was IIware of the receipt of the complaint and that he was named liS a defendant, ,\ copy of the letter dated Febrnary IS, 1997 from Roche & Carter which was attached to the original complllint and sent to mr. IInd Mrs. Simmons's IIddress is IIttached it hereto liS Exhihil ""," By way of additional response, once the Law Offices of Harold S. Invin, III entered its appearance for the plaintiff on November 2, 1995, the original complaint was re-instated on the same day and the re-instated complaint was served upon the defendant, Elliott Simmons, by first-class, certified / return receipt requested mail on November 6,1995. A copy of the return receipt signed by Mr. Simmons is attached hereto as Exhibit "B." 7. There was no service of the Complaint pursuant to the Pennsylvania Rules of Civil Procedure upon Defendant, Elliott Simmons, within ninety days of January 31, 1995. I{esnonse: Plaintiff cannot admit or deny request for admission #7 with any certainty because at the time the complaint was liIed and within ninety (90) days thereafter, plain tifT's case was being handled by Kimberly Moss with the law firm of I{oche & Carter. The plaintiff can admit that the plaintiff hils becn unable to find in the Cumberhmd County Prothonotary's office or in the liIe which WIIS trllnsferred from Roche & Cllrter IIny evidence that the originlll complllint WIIS served upon the defendllnt, Elliott Simmons, within ninety (90) days of Jllnullry 31, 1995. Dy way of further response, the defendllnt, Elliott Simmons, IInd the plaintiff Plltricia Simmons lire husband IInd wife, nnd Mr. Simmons was IIWllre that Mrs. Simmons was liIing a personal injury complllint, thllt the law firm of Roche & Cllrter WIIS going to be representing her, nnd thllt he WIIS being nllmed liS a defendant in the suit. Furthermore, on or nbout February IS, 1995, the IlIw offices of Roche & Cllrter fonvllrded II copy of the originlll complllint to Mr. IInd Mrs. Simmons's IIddress in Plainfield, New Jersey. Mrs. Simmons nccepted the complaint IInd Mr. Simmons WIIS IIwllre of the receipt of the complllint IInd that he WIIS nllmed ns II defendnnt, A copy of the leller dllted Februllry IS, 1997 from Roche & Cllrter which WIIS nttllched to the originlll complllint IInd sent to mr. lInd Mrs. Simmons's nddress is IIttllched it hereto liS Exhibit "A." By wny of ndditional response, once the Lnw Offices of Hnrold S. Invin, III entered its nppearnnce for the plnlntifT on November 2, 1995, the original complaint wns re.instnted on the snme dny nnd the re-instnted complnint wns served upon the defendnnt, Elliott Simmons, by first-class, certified / return receipt requested mnil on November 6, 1995, A copy of the return receipt signed by Mr. Simmons is attnched hereto ns Exhibit "B." 8. There was no attempt at service of the Complaint pursuant to the Pennsylvania Rules of Civil Procedure upon Defendant, Elliott Simmons, within ninety days of January 31, 1995. ,. Resnonse: 1'laintilT cannot admit or deny request for admission 117 with any certainty because at the time the complaint was filed IInd within ninety (90) dllYs thereafter, it was being handled by Kimberly 1\1055 with the law firm of Roche & Carter. The plnintilT can ndmit thntthe plnintilT hils been unllble to find in the Cumberland County Prothonotary's office or in the file which wns transferred from Roche & Carter IIny evidence thnt an nttempt to serve the original complllint upon the defendant, Elliott Simmons, within ninety (90) days of January 31,1995 WIIS made by Kimberly 1\1055 or the (nw firm of Roche & Curter. Dy way of further response, the defendant, Elliott Simmons, IInd the plaintilT Patricia Simmons lire husband IInd wife, IInd Mr, Simmons was IIwllre that Mrs. Simmons was filing a personlll injury compluint. that the IlIw firm of Roche & Cllrter was going to be representing her, IInd that he was being ullmed ns II defendant in the suit. Furthermore, on or IIbout Februllry IS, 1995, the (nw offices of Roche & ClIrter fonvarded II copy of the originnl complllint to Mr. nnd Mrs, Simmons's IIddress in Pin infield, New Jersey, Mrs. Simmons accepted the complaint nnd Mr. Simmons was IIwnre of the receipt of the complllint IInd thnt he WIIS named liS II defendllnt. A cop~' of the letter dated Februlll1' IS, 1997 from Roche & ClIrter which WIIS IIttllched to the orlginlll complllintllnd sent to mr. IInd Mrs. Simmons's IIddress is IIttllched it hereto 115 Exhibit "A," , , 0_..' . Oy way of additional response, once the Law Offices of Harold S. Imin, III cntered its appearance for the plaintiff on November 2, 1995, the original complaint was re-instated on the same day nnd the re-instated complaint wns served upon the defendnnt, Elliott Simmons, by first-c1nss, certified / return receipt requested mail 011 November 6, 1995. A copy of the return receipt signed by Mr. Simmons is attached hereto as Exhibit "0," 9. A Praecipe to reinstate the Complaint was filed by Harold s, Irwin, [[[, Esquire, on November 2, 1995. Response: Defendant's Request for Admission 119 is ndmitted. 10. The praecipe to reinstate the Complaint was filed more than two years aner the date of the accident. ResPonse: Defendant's Request for Admission #10 is admitted. PLAINTIFF'S RESPONSES TO DEFENDANT. ELLlO1T SIMMONS'S REQUEST FOR PRODUCTION OF DOCUMENTS I. In the event that any of the loregoing Requests for Admissions were answered in the negative, produce a true and correct copy of each and every document which in any way supports Plaintiff's position in denying or otherwise refusing to admit such statement(s). Resnonse: PlaintilT has denied defendant. Elliott Simmons's, Request for Admission 1111, IInd in tnrn, hilS enclosed II copy of the returned receipt signed by the defendant on November 6, 1995 IInd IIttached it hereto liS Exhibit "0." i 2. Produce a true and correct copy of any and all documents including letters, memoranda, instructions, canceled checks, returns of service, etc., that would suggest that the original Complaint tiled on January 31, 1995, was forwarded to the Sheriff of Cumberland County, Pennsylvania, for service upon the Defendants as provided by Pennsylvania law and the Rules of Civil Procedure. Response: Neither the plaintiff nor her attorney have IIny such documents in their possession or control. 3. Produce a true and correct copy of any and all documents including letters, memoranda, instructions, canceled checks, returns of service. etc., that would indicate that Plaintiff attempted to serve the Complaint upon Defendant, Elliott Simmons, as provided by Pennsylvania law pertaining to the service 0 original process on out of state residents. Resnonse: Plaintiff has enclosed n copy of n leller dated Februnry IS, 1995 from the law offices of Roche & Curter which indicates thnt II copy of the complaint wns sent to the defendant, Elliott Simmons's, nddress on or nbout Februnry IS, 1997 which was received by Mrs. Simmons. ,\ copy of the leller hns been attnched hereto ns Exhibit ",\," The plnintiff has nlso nttached n copy of the returned receipt signed by the defendnnt, Elliott Simmons, on November 6, 1995 which indicates thnt the plnintilT attempted to serve nnd did in fact serve the re-instated complnint upon the defendnnt, Elliott Simmons, ns permitted by the Pennsylvnnia Rules of Civil Procedure pertnining to the service of originnl process to pllrties outside the Commonwealth. The returned receipt is IIttnched hereto liS Exhibit "0." 4. Produce a true and correcl copy of any and all documents including lellers, memoranda, instructions, canceled checks, returns of service, elC., Ihat would suggest that the reinslated Complaint, which was reinstated by praecipe liIed on November 2, 1995, was forwarded to Ihe Sheriff of Cumberland County, Pennsylvania, for service upon the Defendants as provided by Pennsylvania law and the Rules of Civil Procedure. Ilesoon~e: The plaintiff did not fonvard n copy of the re-instated complnillt to the Sheriff of CUlllberlnnd County for service u(Ion the defendnnts to the nbove nction, but rllther served the re-instated complnint upon the defendnnts by first-class, certified, return receipt requested mail as provided for in the Pennsylvania Rules of Civil Procedure pertaining to service of original process to parties outside the Commonwealth. Consequently, neither the plaintiff nor her attorney has nny such documents to produce pursunnt to defendnnt, Elliott Simmons's, request /I 4, VERIFICATION The foregoing answers to defendant, Elliott Simmons's, request for admissions and the responses to the defendant's request for production of documents are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. Februa~i7. 1997 " PYS510 i995-00520 cumb' land county prothonotary'r 'lftice Page Civil Case Inquiry . SIMMONS PATRICIA (VS) BURLINGTON HOTOR CARRIERS ~T . 1 Reference No..: Filed........: 1/31/1995 Case Type.....: COMPLAINT Time.........: 11:51 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: HOFFER GEORGE E sat/Dis/Gntd.. 0/00/0000 JurR Trial. . . . Hig er Court 1 Hio er Court 2 ************.*.******..***...*.*.*.****.****.******.*..,****.******...****..***, General Index Attorney Info SIMMONS PATRICIA PLAINTIFF IRWIN HAROLD S III I 1203 WEST 5TH STREET ' PLAINFIELD NJ 07060 BURLINGTON MOTOR CARRIERS DEFENDANT MCMAHON TIMOTHY J 14611 WEST COMMERCE ROAD DANVILLE IN 46122 SCAIFE DALE DEFENDANT MCMAHON TIMOTHY J ROUTE 2 BOX 317 MANY LA 71449 STAR TRANSPORATATION INC DEFENDANT 3-15 HILL AVENUE NASHVILLE TN 37201 SIMMONS ELLIOT DEFENDANT 1203 WEST 5TH STREET PLAINFIELD NJ 07060 WORLEY HOMER DEFENDANT 129 SCHNEBERGER CHAPARRAL NM 88021 JOHN DOE 1 DEFENDANT JOHN DOE 2 DEFENDANT JOHN DOE 3 DEFENDANT ABC CORPORATION DEFENDANT XYZ CORPORATION DEFENDANT ***..*******.....***********...*.....*.**********....*.....***.***.............. . Date Entries ; .....**......***.....**.**.***....***...**.***....**..******.*.********...***.*; COMPLAINT - CIVIL ACTION PRAECIPE TO REINSTATE THE COMPLAINT BY HAROLD S IRWIN III ESQ PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR PLAINTIFF BY KIMBERLY A MOSS ESQ AND FOR ENTRY OF APPEARANCE BY HAROLD S IRWIN III ESQ ENTRY OF APPEARANCE FOR BURLINGTON MOTOR CARRIERS INC AND DALE SCAIFE BY TIMOTHY J MCMAHON ESQ PRELIMINARY OBJECTIONS ON BEHALF OF DEFENDANTS BURLINGTON MOTOR CARRIERS AND DALE A SCAIFE CERTIFICATE OF SERVICE MOTION FOR BANKRUPTCY STAY ORDER - DATED 1/25/96 - IN RE MOTION FOR BANKRUPTCY STAY - STAYED AS TO BURLINGTON MOTOR CARRIERS UNTIL CONCLUSION OF BANKRUPTCY PROCEEDINGS - BY GEORGE E HOFFER J - NOTICE MAILED 1/29/96 ..**..******....****.*****....**..**....****................**...***.*....****., . Escrow Information . . Fees & Debits Beo Bal Pvmts/Adi End Bal . .**.......*......**.............,.......**.*****,***...........****.........**.. 01/31/95 11102/95 11/08/95 12/06/95 12/27/95 01/11/96 01/lB/96 01/25/96 35.00 35.00 .00 .50 .50 .00 5.00 5.00 ,00 5.00 5.00 .00 ------------------------ ------------ 45,50 45.50 .00 ..*.***.........**......**......*..*..***.***..****.......*..................... . End of Case Information · ..**.*****.*..*....*.....*............***.***....._.*.*.*.*..**.*.*.*..........~ COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE EXHIBIT "A" . ~.r""i'" '...r...:....~.~. ~ ~ ".' -~_.-~--~ ~...'-::.-- , . '. ., '" "" ", ~. ,. "...~.-..-.--~ - ~_. - .-- ,.... , . . '.. " ..' . . . t' "I " , ROCHE & CARTER ^ rRIIHSSIl\N^Ll."",\lR^Tll'" ^ TTORNEYS AT LAW RA YMOND TROCHE lJENISE MULLENS CAKTeR I1N.\I.l\N~LIN:i<lN 11'loW,..,., MII;IlAEL B. fiILV~RIotM'l. LAKK Y M. RAL(lM~KI M. K(.}Y QAKE ~llotB~RLY A. M~~l OfRALU f. IlEl!A ~ALA 1l.W111 D IIONO RICHARD A. MINK MICHAEL L. PARK I lltlJMA5 r r.IJTCHAI.L Iii fVEJlUR~EN I'\.ACE E.\oT l'MNllE, Nl ~l~ld 1/011 611.1l00 ....-.. ..< I I f I I 1 I I I I I I l February 15. 19!15 lELE~)'1PlfR 11011olo.lH3 CWlm.Nl9 N) H" ~f\. Ml'l" HI taM a..""i /ll~. Patricia SilDllIond 1203 West 5th Stroet Plainfield, New Jersey Rei Patricia Simmons vs. Burlington Motor Carriers, et al Dear Ms. Simmons: Enciosod please find a copy of the Complaint file in the abovo-captionod matter. If you have any quostions, plesse do not hesitate to call. Very truly yours, ROCHE & CARTER, p.A. By: ,/ . (... ...~. KIMBERLY ;'~ ~ KMl/na Encl. , ~'" I I,' I Cl \0 C> ..:. -.I .,\ :,' ::t: :1 "'\1i, .'~ . '.-"11 C)l.' -, "'r .,"" '-""1 - '.::J /..1- \" .~'b (J' ' -<"l- ,1.'1 '-.' -0 ; )':'" -'- ~- ~{. , 3g ~:.-; l". - ,- ~ ~ " .-\ -=,. ::'1 - '.J I~ ::.:: . 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J PATRICIA SIMMONS, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v, BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION INCORPORATED, ELLIOT SIMMONS, and HOMER WORLEY NO, 95-520 DEFENDANTS CIVIL ACTION - LAW JURY TRIAL DEMANDED SUGGESTION OF BANKRUPTCY TO THE PROTHONOTARY: Kindly stay the above-captioned matter as to Burlington Motor Carriers pursuant to 11 U,S.C, ~362, as Defendant, Burlington Motor Carriers, has filed for protection under Chapter 11 of the Bankruptcy Code on or about December 4, 1995 in the District of Delaware at docket no, 95-1559, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: (- I 7 - W.I BY: TI 0 HY 100 Pin P,O, Box 80 Harrisburg, PA 17108-0803 1. D, 52918 (717) 232-9323 ATTORNEY FOR DEFENDANT, BURLINGTON MOTOR CARRIERS \ \ PATRICIA SIMMONS, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v, BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION INCORPORATED, ELLIOT SIMMONS, and HOMER WORLEY NO, 95-520 DEFENDANTS CIVIL ACTION - LAW JURY TRIAL DEMANDED D E AND NOW, ~ 0 R this tf; day of , 1996, upon consideration of the Motion of ngton Motor Carriers, this matter is stayed as to Burlington Motor Carriers until the conclusion of bankruptcy proceedings involving Burlington Motor Carriers, BY THE COURT: (J.) ,'_ '-1' . .'~ .\ '.1....f"\ I.,-J ._.f' ,,--"1 l~-\' .., .' ", c '.~ - .' \ .,.' ,.. I" r l., " J . r ':J ~~ ., I ... . " .' ) .\ \.... )','..,:.> ,.',;..\\:1 \.. .',. .- ~'>ol .. . :--.1..... PATRICIA SIMMONS, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION INCORPORATED, ELLIOT SIMMONS, and HOMER WORLEY NO. 95-520 DEFENDANTS CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR BANKRUPTCY STAY Defendant, Burlington Motor Carriers, hereby submits this Motion for a Stay of Proceedings in the above-captioned matter and in support thereof, states the following: 1, Plaintiff instituted this action by a Writ of Summons and thereafter filed a Complaint, 2. Burlington Motor Carriers had filed Preliminary Objections to Plaintiff's Complaint which Preliminary Objections are pending before the Court, 3, Undersigned counsel has previously entered an appearance on behalf of Burlington Motor Carriers and Defendant, Dale Scaife in this matter, 4. Undersigned counsel has recently learned that a Bankruptcy Petition was filed on behalf of Burlington Motor Carriers on or about December 4, 1995 and at a creditor's meeting that took place on or about January 2, 1996, 5, The Bankruptcy Petition filed on behalf of Burlington Motor Carriers is still active in the proceedings in that matter ,- , are continuing before the bankruptcy court as of the date of the filing of this Motion for Stay, 6, Further action in this case as against Burlington Motor Carriers would be in violation of the automatic stay granted under the Bankruptcy Act at 11 U,S,C, 5362, Therefore, proceedings as against Burlington Motor Carriers in the above- captioned matter should be stayed, 7, Defendant, Burlington Motor Carriers, has filed a "Suggestion of Bankruptcy" with the cumberland county prothonotary on this date, A true and correct copy of the Suggestion of Bankruptcy filed with the Prothonotary has been attached hereto and marked as Exhibit "A", WHEREFORE, Defendant, Burlington Motor Carriers, respectfully requests that this Honorable Court enter an Order granting a stay of proceedings as against Burlington Motor Carriers in the above-captioned matter until conclusion of the bankruptcy proceedings involving Burlington Motor Carriers. DATE: 1- / 7. "let MARSHALL, DENNEHEY, COLE~ & GOG N BY: fA.-li / I OT 100 P e P.O, Box 3 Harrisburg, PA 17108-0803 I.D. 52918 (717) 232-9323 ATTORNEY FOR DEFENDANT, BURLINGTON MOTOR CARRIERS -2- (") ,.., (") c: '-. -II :;: r_ :71 ;"J \ 7~' :.;" .~ :u , ~11 , :L: l'll~ ~~ ''OJ ;,:: ~~:; c:J ~1~ r:> j .~ :;:~ . ~ ...,J -0 _L.., , : ( ), .,.0 :'.Cl r. ijrn J.. ~':'~ .. -I ::..] 0 ~ ". -.J . .' ~ COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, Plaintiff . . No. 95 - 520 civil Term v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY, CIVIL ACTION - LAW . . Defendants JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ARGUMENT To the Prothonotary of Cumberland County: Please list the within matter for the August 13, 1997, Argument Court. 1. Matter to be argued: Defendant simmons' Motion for summary JUdgment. 2. Identify counsel who will argue case (a) for Plaintiff: Harold S. Irwin, IIIr Esquire 35 East High street Carlisle, Pennsylvania 17013 (b) for Defendant: Michele J. Thorp, Esquire Reynolds & Havas 101 pine Street Harrisburg, Pennsylvania 17101 " ..: , I \ I, 3. I will notify all parties in writing within two days that this case has been listed for argument. I I Date: t.A/~o/o..' By: REYNOLDS & HAVAS A Professional corporation Michele J. Thorp Attorney I.D. 171117 101 pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Elliott Simmons - 2 - .- . - --:' . . Harold S. Irwin, III, Esquire 36 South Pitt street Carlisle, PA 17013 (Counsel for Plaintiff) Timothy J. McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 100 Pine Street Harrisburg, PA 17108-0803 (Counselr Burlington & Scaife) CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United states Mail at Harrisburg, pennsylvania, first-class postage prepaid, on the .:'.:1,1.(.. day of June, 1997, addressed as follows: Kevin E. Osborne, Esquire Thomas, Thomas & Hafer 305 North Front Street Harrisburg, PA 17108-0999 Mr. Horner Worley 394 South Martin Street Portland, Tennessee 37148 (Defendant) (Counsel for Star Trans.) REYNOLDS & HAVAS A professional corporation By: , a ., ,/",~ t/I;,J Uo , .' ' oj". ce:;" ' S~aron Dell-Gallag r~' Secretary f< ~ .. -l .... . - ~ tll 010 i,) z Iol · o,q o f ~ = 2 Jl j z ) ~ p ~ 1 z f:uot;O 0" a I ,.. . 0 ~wH en l~~311!' S~M6 J: ::i ~ ~ ~ o >Il> ~ ~ en III ~ lol Iol I") '.J:J 0 (:; '-' -T1 ;;'1 t_ .~ -,I ~u. :.-:i iTir tr;, .~ ...!. _I) ~- :---{ 1''' 'n:!) (1/..:.- ,1:- :.''i f;;:J ,') -) ~~-" .:~.t !;11 ~~(j :.1: ~t) :11 :;..=('""""\ - fj~ ...J. (.~ .. .,' -, ~ :" ;.;- .r.- ~ COMMONWEALTH OF PENNSYLVANIA I I i I ! I i I: ! : I I' I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PATRICIA SIMMONS, plaintiff No. 95 - 520 civil Term v. . . . . BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC., ELLIOT SIMMONS, and HOMER WORLEY, CIVIL ACTION - LAW . . . . Defendants . . JURY TRIAL DEMANDED REPLY OF DEFENDANT, ELLIOT SIMMONS, TO NEW MATTER OF PLAINTIFF TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 15. Admitted. By way of further answer, the fact that the parties may be related by marriage does not relieve Plaintiff of her duty to effectuate proper service as required by pennsylvania law, nor does it waive Defendant's right to proper service. 16. Denied as stated. Defendant denies any allegation or implication that a letter from Plaintiff's counsel dated February 15, 1995, constitutes proper service as set forth in the Pennsylvania Rules of Civil Procedure. 1? Admitted. By way of further answerr this letter establishes that plaintiff and her current counsel agreed that '. there was no proper service of the Complaint by former counsel in February of 1995. It was based upon this understanding, therefore, that the Complaint was reinstated and then served in a manner sanctioned by the Pennsylvania Rules of Civil Procedure. 18. Denied as stated. The explanation contained in paragraph 17 hereof is incorporated herein by reference as if set forth in its entirety. 19. Admitted. 20. Admitted. 21. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. 22. Denied. There are other Defendants named in the complaint and thereforer plaintiff still has a source of recovery. 23. Denied as stated. At no time before November 6, 1995, did Plaintiff comply with the Pennsylvania Rules of civil Procedure or the requirements of pennsylvania law to effectuate service of process in an appropriate manner. 24. Admitted. 25. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. 26. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. - 2 - WHEREFORE, Defendant, Elliott Simmons, prays this Honorable Court enter an Order granting summary judgment as previously requested by Defendant. REYNOLDS & HAVAS A 0 essional Corporation Date: i 1 \ql By: anko, Jr. . #41727 101 pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Elliott simmons - 3 - VERIFICATION I, Stephen L. Banko, Jr., counsel for Defendant, Elliott Simmons, depose and say, sUbject to the penalties of 18 Pa.C.S.A. S4904, relating to unsworn falsification to authorities, that the facts set forth in the foregoing document are as well known to me as they are to my client at this time and that I verify under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief. Date: t( 1\0l CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing document on all counsel of record by placing the same in the united states Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 7:tii day of August, 1997, addressed as follows: Harold S. Irwin, III, Esquire 36 South pitt Street Carlisle, Pennsylvania 17013 (Counsel for Plaintiff) Timothy J. McMahon, Esquire Marshall, Dennehey, Warnerr Coleman & Goggin 100 Pine Street Harrisburg, Pennsylvania 17108-0803 (Counsel for Burlington, Scaife and Worley) Kevin E. osborne, Esquire Thomas, Thomas & Hafer 305 North Front Street Harrisburg, Pennsylvania 17108-0999 (Counsel for Star Trans.) REYNOLDS & HAVAS A Professional corporation By: 1J2,(,~ ~' <<i:~ jilharon De l-Gal1aghe Secretary -,: ::; "-I .,j M ,~ i II 0 lol Z IJ · '0 () , :1 f i' JJ ~ p~ P ..qz ~~~ql.~ ~ ~ Jl tl 0 r ~ Z ~ (Jl iGl~~fl!' .~M6 :r :: ~ a ~ o ~h. ~ ~ (Jl B ~ ' IJ 0 ..n 0 ~f~ -' '1\ "1"'!,: ". :;J cO [i~ l ; I l:' 'i,;r! .- .-:' '" , " I "<:T~ ( .-:.", .:OJ ilL -. uA ~- ; I:~; j'- ~: 'T . 'I , -~. -r 0', : .~C-) .J "( : - ::SrIl '.,' .. ~l ~_l .:.1 ~ -< 'f) -<,; CERTIFICATE OF SERVICE AND NOW, this February 14, 1996, I, Stacie J. Horst, a secretary in the law firm of Thomas, Thomas, & Hafer, hereby certify that I sent a true and correct copy of the Defendant's Entry of Appearance by placing a copy of the same in the United States Mail, firsl class, postage prepaid, to the following: Harold S, Irwin, III, Esquire 36 South Pill Street Carlisle, PA 17013 Timothy McMahon, Esquire MARSHALL. DENNEHEY, WARNER, COLEMEN & GOGGIN 100 Pine Street 4th Floor Harrisburg, P A 17108-0803 W Stacie J, Horst ecretary to Attorney Osborne r-~ ~ .'") ~.~ '- " .") oil -.. . '1 " ''I 1 ..J .i;J , c:\ J ~11 "~ t--: .~ - ). ':r-.... :1~ !:.!] ~.~:> :.!?) - dell . .; .. -. d - :jj - "" PATRICIA SIMMONS, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA " l' v. BURLINGTON MOTOR CARRIERSr DALE SCAIFE, STAR TRANSPORTATION INCORPORATEDr ELLIOT SIMMONS, and HOMER WORLEY NO. 95-520 DEFENDANTS CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO: THE PROTHONOTARY Kindly enter the appearance of the undersigned on behalf of the Defendants, Burlington Motor carriers, Inc., and Dale Scaife, in connection with the above-captioned case. MARSHALLr DENNEHEY, WARNER, COLEMAN & GOGGIN ;<( BY: , TIMOTHY 100 Pine P.O. Box 803 Harrisburgr PA 17108-0803 1.0. 52918 (717) 232-9323 ATTORNEY FOR DEFENDANTS BURLINGTON MOTOR CARRIERS AND DALE SCAIFE DATE: bt~ ~, \~etS-- / CERTIFICATE OF SERVICE Ir Jane Mansell, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ day of ~r~~~~ 1995, I served a true and correct copy of the foregoing document, via First Class United states mail, postage prepaid, addressed as follows: VIA REGULAR HAIL Harold S. Irwin, III 36 South pitt st. carlisle, Pa. 17013 . VIA' CERTIFIED HAIL STAR TRANSPORTATION INCORPORATED 3-5 Hill Ave. ~ashville, TN 37224 , . VIA CERTIFIED HAIL Elliot;simmons 1203 West 5th Street Plainfield, NJ 07063 VIA CERTIFIED HAIL Homer Worley 129 Schneberger Chaparral, NM ~~ DATE: J~J--I (os \. ("') .D ~ r:: UI - '=' ~I -ut"; ", (')~ ("') Zt: I ~4'; (j'"l ~ ~6 -0 =.l <: ~ ;!,:(.-') :": ~\~ (..) ~ "'s;.; .. ~ ...) ~ -:. (Jl 13200.3294. PATRICIA SlMMONS, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. . . BURLINGTON MOTOR CARRIERSr DALE SCAIFE, STAR TRANSPORTATION INCORPORATED, ELLIOT SIMMONS, and HOMER WORLEY NO. 95-520 DEFENDANTS CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS ON BEHALF OF DEFENDANTS. BURLINGTON MOTOR CARRIERS AND DALE A. SCAIFE Defendants, Burlington Motor carriers and Dale A. Scaife (hereinafter referred to as "Moving Defendants"), hereby petition this Honorable court' to strike subparagraph 3 (g) of Count I of Plaintiffrs Complaint, and in support thereof, aver the following: 1. Plaintiff, Patricia simmons, commenced an action arising out of an incident which occurred on February 21, 1993, by filing a Complaint in the Court of Common Pleas r Cumberland County, Pennsylvania. (A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A".) 2. Plaintiff's Complaint consists of standard allegations of negligence against Moving Defendants. 3. Counsel for Moving Defendants entered his appearance on or about December 4, 1995. 4. On or about December 4, 1995, counsel for Moving Defendants forwarded a stipulation to counsel for Plaintiff, requesting that sub-paragraph 3 (g) of plaintiff's complaint be withdrawn with prejudice. (A true and c~rrec~ copy of the stipulation is attached to Defendant's preliminary objections as Exhibit "B".) 5. As of the date of this filing, Plaintiff1s counsel has not executed such stipulation. 6. Paragraph 3(g) of Count I of Plaintiff1s Complaint alleges that Defendants' negligence consisted of the fOllowing: (g) other acts or omissions of the law which may be developed with continuing discovery and trial of this case. (~ Subparagraph 3(g) of Count I of Plaintiff'S Complaint, attached as Exhibit "A".) 7. Pennsylvania Rule of Civil Procedure 1019(a) states that the material facts upon which a cause of action or defense is based shall be stated in a concise and summary form. 8. Pennsylvania Rule of civil Procedure 1028(a) (3) allows Preliminary Objections to be filed to any pleading due to insufficient specificity. 2 , , WHEREFORE, Moving Defendants, Burlington Motor carriers and Dale A. Scaife, hereby request that this Honorable Court enter an Order by which subparagraph 3(g) of Count I of Plaintiff's Complaint is stricken. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN / BY: II dJ TIMOTHY 100 Pine street P.O. Box 803 Harrisburg, PA 17108-0803 1.0. 52918 (717) 232-9323 ATTORNEY FOR DEFENDANTS BURLINGTON MOTOR CARRIERS AND DALE A. SCAIFE DATE:.!).ftl{J\hu !)!Q Iqqr. , 3 CERTIFICATE OF SERVICE I, Jane Mansell, an employee of Marshall, Dennehey, Coleman & Gogginr do hereby certify that on this t<hfl, /)R(t,.,vl Jer Warner, day of 1995, I served a true and correct copy of the foregoing document, via First Class United states mail, postage prepaidr addressed as follows: Harold S. Irwin, III 36 South pitt st. Carlisle, Pa. 17013 STAR TRANSPORTATION INCORPORATED 3-5 Hill Ave. Nashville, TN 37224 Elliot Simmons 1203.West 5th Street 'I'lainfield, NJ 07063 . - . . Homer Worley 129 Schneberger Chaparral, NM r/l::h1.c.Z-- JANE MANSELL DATE: 1;}/X/c;S-- ., I 4 0 oJ) !7, f- ur ':~ =rJ ." t73 r'1 [Ilrrl ,"l ~'~~ ~'J" r-' :";~l- ~.~.. .~; -' i3 ,..... :?~ I:CU .." '. ~~n .,- G... - t:.:=Cl r:-? Om -.S; F' ~ (,) ~ - 13200.3294.. PATRICIA SIMMONS, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION INCORPORATED, ELLIOTT SIMMONS, and HOMER WORLEY NO. 95-520 . . . . . . CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS CERTIFICATE OF SERVICE I, Jane Mansell, an employee of Marshall, Dennehe~arner, Coleman & Goggin, do hereby certify that on this q' day of January 1996, I served a true and correct copy of the STIPULATION via First Class United States mail, postage prepaid, addressed as follows: Harold S. Irwin, III 36 South pitt st. Carlisle, Pa. 17013 STAR TRANSPORTATION INCORPORATED 3-5 Hill Ave. Nashville, TN 37224 Elliot simmons 1203 West 5th Street Plainfield, NJ 07063 Homer Worley 129 Schneberger Chaparral, NM Michael Badowski, Esquire Reynolds , Havas 101 Pine st. Harrisburg, Pa. 17101 _t9 . 'JAN-5 PATRICIA SIMMONS, PLAINTIFF IN THE COURT OF COMMON PLE~S CUMBERLAND COUNTY, PENNSYLVANIA v. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION INCORPORATED, ELLIOT SIMMONS, and HOMER WORLEY NO. 95-520 . . DEFENDANTS CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION Plaintiff, and counsel for Defendants, Burlington Motor carriers, and Dale Scaife, hereby stipu;pte that Plaintiff's complaint is amended and Paragraph 3 (g) of^!f,f~ll-bf' s Complaint is hereby 'rJfLl/..f/-.I- withdrawn with prejudice. Mu BY: HAROLD S. IRWI , 36 West pitt S . carlisle, Pa. 17 1. D. 29920 (717) 249-3657 ATTORNEY FOR PLAINTIFF PATRICIA SIHHONS DATE: ;(1(1 ~. , MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: 17108-0803 DATE: ~ ATTORNEY FOR DEFENDANTS BURLINGTON MOTOR CARRIERS AND DALE SCAIFE i , I L ii " , ! . , f' I I ! C1 '." (') r:. ,." -II .' r_ =t;n -qj-.j "--~ rnr 1 ' ~ ;llf ;:~~ (~ '''z "{J l~ ~. . 0 2;:] ::->0 :e:B ::... ,.....~(") :;: om .,.. ~.-; 1;;2 - ',- 11 - '.) I ~ 1.4 .. ::';! ., :::.) U1 ~ -. ,:.- PATRICIA SIMMONS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC. ELLIOT SIMMONS AND HOMER WORLEY NO. 95-0520 CIVIL TERM CIVIL ACTION - LAW IN REI MOTION OF DEFENDANT SIHHONS FOR SUMMARY JUDGMENT BEFORE SHEELY. P.J.. HOFFER. J.. HESS. J. J ORDER OF COURT ~Nv day of OCTOBER, 1997, after careful AND NOW, this consideration of the parties' briefs and oral arguments, the Motion for Summary Judgment of defendant Elliot Simmons is GRANTED. By the Court, ) JCL,'1 (~ IR- Harold E. Sheely, P.J. Harold S. Irwin, III, Esquire Michele J. Thorp, Esquire Timothy J. McMahon, Esquire ) ,/\,...1....( t1i.w.:.. 10,03.';1 ,-,.."." . :sld " - " ." , " ' I , ',- , -. . ..,;~_ '..- )-'-,-T'" ' ~." I, , " I'.. . " ,'" ',' ." .. --:-- ~ I";. ' - " .1 ". ',' . "'" ," '. " . I" ..--.~.. ~-~..---_. .- ..... '~---n'-"" "-'_ . , " " \,"'\. '.,"."'j AI-.t-. q:'i:O 81J ,', ',- " I ,'- l:JU LG l~\"'1.~"; :.0 ::{,~~ .i:}' ~:j-i:1 PATRICIA SIMMONS IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. . . BURLINGTON MOTOR CARRIERS, DALE SCAIFE, STAR TRANSPORTATION, INC. ELLIOT SIMMONS AND HOMER WORLEY NO. 95-0520 CIVIL TERM . . CIVIL ACTION - LAW IN RE I MOTION OF DEFENDANT SIMMONS FOR SUMMARY JUDGMENT BEFORE SHEELY. P.J.. HOFFER. J.. HESS. J. OPINION AND ORDER OF COURT This case arose as the result of a motor vehicle accident which occurred on or about February 21, 1993, on Route B1 North in Middlesex Township. Plaintiff, a resident of New Jersey, was a passenger in the vehicle being operated by her husband, one of the defendants named in the action and the moving party in the present matter. Plaintiff initially retained the services of a New Jersey law firm, Roche and Carter, and Kimberly A. Moss of that firm handled the case. The record shows that Attorney Moss filed a complaint in Cumberland County on January 31, 1995, and she forwarded a copy to the Simmons' address in Plainfield New Jersey on February 15, 1995. However, proper service was not effectuatsd on defendant Simmons within 90 days as provided by Pa.R.C.P. No. 404. There is nothing to document whether service was attempted. By letter dated May 16, 1995, Attorney Moss agreed to withdral\7 her appearance and turn the case over to Harold Irwin, NO. 95-0520 CIVIL TERM 111.1 However, Attorney Irwin did not file a praecipe with the Prothonotary to enter his appearance until November 8, 1995. On November 2, 1995, before he became the official attorney of record, Attorney Irwin reinstated the complaint. Original service of the complaint on defendant Simmons was then effectuated on November 6, 1995, also before he became the attorney of record. Before the Court is the summary judgment motion of defendant Simmons, who contends that the two year statute of limitations had expired by the time Simmons was served with original process. Other pleadings have taken place but are not relevant to the summary judgment motion before the Court. The parties presented oral argument on August 13, 1997. DISCUSSION Rule 1035.2 of the Rules of Civil Procedure, sets forth as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law {ll whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional The letter reads in part as follows: Dear Mr. Irwin: This will confirm your conversation with my office manager, Evelyn Colon, wherein you have agreed to represent Ms. Patricia Simmons and you are now the attorney of record on the above file. 2 NO. 96-1499 CIVIL TERM I I ! i ' i ; discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 42 Pa. C.S.A. S 1035.2. The record must be examined in a light most favorable to the non-moving party, with any doubts resolved in that party's favor. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (19BB). D~fendant Simmons maintains that his motion should be granted pursuant to the holding of Lamp v. Heyman, 469 Pa, 465, 366 A.2d BB2 (1976) and its progeny, imposing a burden of good faith compliance in order to toll the statute of limitations. The, Pennsylvania Superior Court has recently stated the following with regard to the Lamp standard: Lamp and its progeny require that the tolling effect of the statute of limitations will be extended to plaintiffs who make a 'good faith' effort to effectuRte service, and, in the process, refrain from conduct which serves to stall in its tracks the machinery he/she set in motion. What constitutes a 'good faith' effort to serve legal process is a matter to be assessed on a case-by-case basis. Otterson v. Jones, ___ Pa.Super. ___, ___, 690 A.2d 1166, 1167 (1997). The court further stated that even if there is no active attempt to thwart service, the plaintiff should take affirmative action to insure compliance with the Rules of civil Procedure. rd. (Citations omitted). At bar, plaintiff argues that she did not hinder service of 3 NO. 96-1499 CIVIL TERM I r f ! i I I I I I process in any manner nor did she purposefully stall the legal machinery. The reason for the delay was articulated in the brief as follows: "Plaintiff's New Jersey counsel attempted to transfer Plaintiff's file to Attorney Irwin, however, no immediate agreement could be reached. Once an agreement was reached, Attorney Irwin reinstated the complaint and effectuated service upon the Defendant only a short time later." None of the information regarding the problems in transferring the file is in the record, nor is it documented that original service was ~ ' I attempted prior to November 6, 1995. Mindful of the principle that allegations of fact contained in an attorney's brief but absent from the pleadings will not be considered for any purpose,' this Court believes that plaintiff has failed to demonstrate a "good faith" effort in accordance with the foregoing case law. No reason appears on the record for the 21 month delay before original service on defendant Simmons. Even if the Court were to accept an explanation for the delay that is not documented by the record, it is difficult to accept plaintiff's "good faith" argument. First of all, Attorney Irwin did not file his praecipe of appearance until November of 1995 when he could have done so in May of 1995. His explanation that he reinstated the complaint as soon as he became the attorney of record does not correspond to the facts. He actually , See Martin v. Department of Transportation, 124 Pa. Commw. 625, 556 A.2d 969 (1989). I , I , i t. 4 MO. 96-1499 CIVIL TERM reinstated the complaint and served it on defendant Simmons before he officially became the attorney of record and apparently could have done so way back in May. No explanation was provided as to why he waited an additional six months to act. Additionally, according to his own exhibit Attorney Irwin knew at least as of June 19, 1995, that dsfendant Simmons had not been served with the complaint. The exhibit is a letter to Mr. i, , il Irwin from Brian J. Schu, defendant Simmons' attorney for a federal case arising from this Bame occurrence. The letter reads in part: "This will confirm our discussion on June 13, 1995, at which time you advised me that Mr. Simmons could disregard that Notice of Intent to Take Default as there had been no service of the Complaint." (Exhibit B, attached to Answer and New Matter of Plaintiff, Patricia Simmons). Finally with regard to his argument that defendant Simmons received constructive notice of the law suit by virtue of a copy of the complaint being sent to his household, our appellate court has firmly held that initial process must be effectuated by the sheriff. Cahill v. Schults, 434 Pa.Super. 332, 643 A.2d 121 (1994). Even though this requirement appears to have been relaxed in Fulco v. Shaffer, 455 Pa.Super. 30, 686 A.2d 1330 (1996), the plaintiff in that case had taken several affirmative steps to secure proper timely service, unlike the circumstances in the instance case. Defendants Burlington Motor Carriers and Dale Scaife have 5 NO. 96-1499 CIVIL TERM also filed a brief in opposition to the summary judgment motion, but the Court has not been persuaded by the arguments presented therein. Defendants first aver that Simmons should have filed preliminary objections for improper service. This argument is negated by the fact that there was no service of the complaint. Defendants further contend that they will suffer undue prejudice if Simmons is dismissed because they have filed for bankruptcy and will not be able pursue a potential crossclaim until the bankruptcy stay is lifted and their preliminary objections (filed December 27, 1995) have been decided. It is clear from Burlington's Suggestion of Bankruptcy filed with the Court that it recognized this action would continue as to the other parties, as it states to "[k]indly stay the above-captioned matter as to Burlington Motor Carriers." ORDER OF COURT AND NOW, this ~/l,;/ day of OCTOBER, 1997, after careful consideration of the parties' briefs and oral arguments, the Motion for Summary Judgment of defendant Elliot Simmons is GRANTED. By the Court, Isl Harold E. Sheely Harold E. Sheely, P.J. Harold S. Irwin, III, Esquire Michele J. Thorp, Esquire Timothy J. McMahon, Esquire 6 PATRICIA SIMMONS, Plaintiff : IN TilE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v, , : CIVIL ACTION. LAW HOMER WORLEY, STAR TRANSPORTATION,INC" DALE SCAIFE and BURLINGTON MOTOR CARRIERS, INC" : NO, 95.520 Defendants : JURY TRIAL DEMANDED PRAECII'E TO DISCONTINIJE TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontinllcd and endcd, LAW OFFICES OF HAROLD S, IRVIN, III Dated: ~.~?/// , By: .,:,...-7 ,," -U- y// J 10 J, Barallski, Esquire 35 East High Street Carlisle, PA 17013 (717)243-6090 Attorneys for Plaintiff, Patricia Simmons ("} ," , , f~. w .. ":i '- n., , - "1 -, ' , !':( j'';; N " , I r.!. ,i"..' f~i. 1(~, " :..: j' ,., ",:f : k;~ , . ~ I ., , " '. ~ ; -.' ::) :~:'! -, (:) ."