HomeMy WebLinkAbout95-00628
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LAW OFFICES 0'
KAUPl'MAN A SBILLING
ATfOMEYI .C, WW1.... ShlDln,
SUPREME COURT LD. NO. 46995
100 PINE STREET, sum 300
HARRISBURG. PA 17101
(717) 720-0700
ATfORNEY'ORc
D.f.nd.nl KrIIUn Lt.
N'''.D
JERRY MAPP, Admlnlllrllor of
Ih. S.tll. of 10HN ERNEST
MAPP, D~ued,
Plalnlift'
IN THE COURT OF COMMON PLEAS 0'
CUMBERLAND COUNTY, PENNSYL V ANJA
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CIVIL ACTION. LAW ., ;" j',~1
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NO, 95-628 CIVIL TERM ~ ..)
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KRISTIN LEE NELSON,
DefendUlt
PefendUlt KrI.tln Lee Nelson by IUld throuah hi. counllel, KauffinlUl & Shllllns, h.reby
.nt.r the tollowlnll Anaw.r to Plalnlift'. Motion tor SUlction. and Ivera .. tollow.:
I, The Iverments ofparllll'lph I of Plain tift'. Motion con.titute I conclu.lon ofllw
to which no UIIwer I. required under the Ippllc:tble Rule. of Civil Procedure,
2, Oenled .. .llted, Ills admitted only that Plalnllft' IIerved Expert Interroptorles on
the DefendlUlt, but not tor the purpOIle .tlled here,
3, The lverments of pariSI 'I ph 3 of Plain Iift'. Motion con.litule I conclu.lon of law
to whlc:h no UIIwer i. required,
4, The averments ofparalll'aph 4 of Plaint 1ft'. MOllon con.tilute a conclusion of law
to which no U1.wer is required,
5. Admllled,
6, Th. docum.nt *PfIIc. for It..lf and no an.wer I. required under the rul.. of civil
prOCldur.,
7. Denied u .tated, on the contrlly, coun..1 for the Defendant Iw v.rbally notified
coun..1 for the Plalntlft'th.llmlted dlrectlona that were obtalnabl. "'om the Defendant,
I, Th. averment. ofpar..,aph I ofPlalntlft'. Motion con.tltut. a conclualon onaw
to which no answer i. rtqulred
WlIElU!FOlU!, Defendant Kristin Lee Nelson respectlUlly requests this Honorable Court
enter an Order dlsmlllina Plalntlft's Motion with costs,
mtM4mB
9, Coun..1 for the Defendant tried to locat/! the Defendant by both the malls IIld
t.l.pholll, but wu unlUCCllllUlln locetlna the Defendant until March 30, 1998.
10, Th. Defendant wu finally contacted via telephone by the adjuster for the Cllrier
repre..ntlna the Defendlllt on March 30, 1998 and the Defendlllt wu inatructed to contlllt
counael on March 31, 1991,
II, Defendlllt did contact coun..1 u requested IIld pve very limited instruction. u to
wbal Defendant remember. reaardlna how he traveled to BreMa Smith's realdence,
12. Coun..1 for the Defendlllt then contlllted Plalntlft's coun..1 and relayed the
Information received,
13, Despite the judlcal economy that would be ..rved by Plalntlft's coun..l acceptlna
thl.lnformation and CIIlcelinalhls hearina. Plalnllft'. counsel desired to move forward,
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OAIRIIL I, 'RANK. JR.
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OAIIIIIL I, 'IIANIt, JII,
A TTO~NEY "T LAW
'30 WIST LANC"STI~ AVENUE
POST O"ICEIOX 107
WAYNE, PENNSYLVANIA 11017
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A Ho.
a Q Did Hina Bell?
3 A No.
4 Q Did she use oontrolled .ubstanoes the
~ night of the aooident?
6 A No.
7 Q Did you?
8 A No.
II Q Did you use any oontrolled substano..
within 24 hours of that accident before that
acoident?
A I don't know,
Q Maybe?
A Yeah.
Q Like what?
A I don't know.
really reoall.
Maybe.
,
Probably nothing. I don't
Q You said maybe. tt's a yes or no
question.
A All right. No.
Q What controlled .ubstanoes have you u..d
in the put?
MR. SHILLING I Objeotion. It h~s nothing
to do ~ith the ca.. at this point.
MR. rRAN~1 I think at this point it did.
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1. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
CIVIL TERM
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J13RRY MAPP, Administrator of I
ths Estate of John Ernest I
MIlPp, Deooased, I
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Plaintiff , I
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VS I No, 9/)-628
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KRISTIN LEE NELSON, I
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Defendant. I
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DBPOSITION OFI KRISTIN LEE NBLSON
TAKEN BYI PLAINTIFF
DATEI JUNE 23, ),998
PLACEI Law Offioe of Harrington
Kauffman & Shilling
APPBARANCBSI
GABRIBL B. FRANK, JR., Esquire
130 West Lanoaster Avenue
P.O. Box 807
Wayne, PA 19087
For - Plaintiff
C. WILLIAM SHILLING, Bsquire
Harrington, Kauffman & Shilling
100 Pine Street, Suite 300
Harrisburg, PA 17101
For - Defendant
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OO[}2)W
MARJORIE M. LALLY, Court Reporter
297 High Road, Ashland, PA 17921
(717) 276-1737
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1 INDEX
2 l!llnu.J. I$xamj.Qation by lA.U.
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4 MR. NILSON MR. FRANl( 3
~ MR, SHILLING 73
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8 EXHIBITS
9 li.Q. . Qa.cription '&9.
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11 1- 3 photo. 23
12 4 police raport 37
13 ~ .tatement' &8
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MR. FRANKl There will be no usuAl
stipulations for this deposition. I request that
Mr. Shilling, who is here representing Mr. Nellon,
plaoe all his objeotions on the reoord.
KRISTIN LEE NELSON, oalled ae a witnell,
having been duly sworn, testified as follows.
EXAMINATION
BY MR. FRANK.
Q Good afternoon, Mr. Nelson. My name i.
Gabriel Frank, and I represent the estate of John
Mapp. And we're here today to take your depolition
oonoerning the aooident that happened on June 27th,
1993.
And for the reoord, let me note that your
Attorney, Mr. Shilling, is sitting next to you and
will represent you through the oourse of this
deposition.
Before I begin, let me just go over lome
basio instruotions. Number one, when I ask you a
question, I'll assume that you've heard it and that
you've given me your answer to the best of your
ability.
If at any time you do not understand my
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question, either ask me to repeat it or to rephrase
it, I'll ask you not to guess or speoulate
throughout the deposition. I'll be asking you
various questions with regard to your speed, your
dhtanoe and Visibility, things like that. And I'll
ask you, again, not to speculate as to those or to
quess. If you don't know, simply respond you don't
know or you don't recall.
Do you understand those instructions?
At do.
o Now, in preparation for today's
deposition, Mr, Nelson, did you review any
doouments?
A Yeah.
o Which ones?
A Variou8.
o Why don't you tell me whioh onel you
reviewed?
A Like statements I've mado in the palt and
like a picture--a drawing of what happened.
o Where are those doouments?
A I believe he has them.
MR. FRANRI May I lee tho8e,
Mr. Shilling?
MR. BHILLINGI These are the on.. that
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yau already have in your po.eee.ion. It'a the
palice report with the drawinge.
BY MR. fRANK I
o You mentioned etatementa. And I'll refer
to the one atatoment. I believe you gave that to
the in.urance company, to Mr. Huzbar. Did yoU?
A Yeah.
o Did you give any other atatementa?
A To the police.
o Other than the.e two .tatement., did you
give any other .tatementa?
A I don't believe so.
o Did you review any other documentation
other than these two statements that we've talked
about?
A Beaide. tho.e pictures, no--the drawing..
a The drawing.. Were the drawing. the one.
attached to the police report?
A Yeah.
a So there's no other document.?
A No.
a Now, if at any time you'd like to .top
and take a break, you have to use the re.troom or
you want a drink of water, just 80 l.ndicate and
we'll go off the reoord and stop.
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For the r.eoord, would you stat~ your name
and address?
A Kristin Lee Nelson, 191 Lefever Road,
Newville, VA,
Q Is that your ourrent address?
A Yeah.
Q What's your phone number?
A 776-3128.
Q Are you presently living at that address?
A No.
Q Where are you presently living?
A Just kind of out for the summer. I'm not
living anywhere right now.
Q Where had you been?
A In south Florida.
Q I believe looking at the Sheriff's
return, you were served with the writ of summ~n. on
this matter on Maroh the lit, 1995, is that oorrect?
A I can't recall.
MR. SHILLING I Just for the reoord,
there's no problem with service. We're not
contesting service.
MR. FRANKl I didn't--I'm just trying to
establish the date.
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BY MR. FRANKl
Q On Maroh 1st, did you go to Florida?
A Around that time.
Q Where did you go?
A Pompano Beaoh. 2001 Northeast Liqhthouse
Court--Northeast 31st Court, Liqhthouse Point,
Florida 33646.
Q What's the phone number thore?
A (305) 946-6874.
Q Is that also the residenoe of Nina Bell?
A Yes.
Q We'll talk about her a little bit, But
for the record, who is she?
A She was my qirlfriend.
Q Is she your qirlfriend?
A K1 nd of. Friends.
Q What have you been doing in Florida sinoe
you left?
A Working down there.
MR. SHILLINGI I'm going to plaoe an
objeotion on the reoord. ~his is a deposition
that'e being oonduoted under an order of oourt to
allow Plaintiff's Counsel to be able to file a
complaint in this matter. The relevanoy of the
questioning that's being Asked has nothing to do
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with whether ar not there's sufficient information
to file a complaint. And I would object to the
questioning on this ground. This is soleiy an issue
as to allow Plaintiff's Counsel to gather
information as to whether or not he has a cause of
action that can be filed.
MR. FRANKl I understand.
MR. SHILLING I As I said, this is not a
fishing expedition/ and I'm not going to allow it to
become a fishing expedition.
MR. FRANKl I understand your objection,
Mr. Shilling. And I agree to those ground rules.
On the basis of that, we also agreed that once a
complaint is filed, should I need another deposition
of Mr. Nelson, you have no objection.
MR. SHILLING I That's correct.
BY MR. FRANKl
Q What was your occupation at the time of
the accident, Mr. Nelson?
A I was working for--like as a
subcontractor.
Q Doing what kind of work?
A Like remodeling and stuff.
Q Are you etill doing that?
A No.
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Q What was your age at the time of the
accident?
A I guess I was 23,
Q 23? 22, 23?
A Yeah.
Q At the time of the acoident, did you live
in Newville?
A Yeah.
Q How long did you live the~e at the time
of the acoident?
A Pretty muoh mOlt of my li ie.
Q Are you married?
A No.
Q Have you over been married?
A No.
Q At the time of the aooident, I believe
acoording to the polioe report, there wal a Nina
Bell with you. II that oorreot?
A Yel.
Q What wal her addreAI at the time of the
accident? Do you know?
A The one I had given you in Florida.
Q So Ihe wal up visiting you?
A Yeah.
Q Where wae Ihe Itaying with you when ehe
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Q Doee that eound right?
A Yeah.
Q Who owned that truck?
A I believe my mother did~
Q It hae on the police report H, Mack
Neleon?
Father.
Had you ever driven that truck before
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that time?
A Yeah.
Q On that time and date, did you have
permiaeion to uee that truck?
A Yea.
Q Who gave you permieeion?
A My father.
Q Did you regularly drive that truck?
A I uaed it on and off.
Q What wae the condition of that truck at
the time of the accident?
A It wae fair.
Q Fair. What do you mean by fair?
A It ran good. There waa no--it waan't
beau~iful.
Q Any mechanical problema?
A No,
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Q Brake. worked fine?
A Urn-hum.
Q Lights worked fine?
A Yeah.
Q Horn?
A Yeah.
Q We do have a court reporter/ and she does
need a verbal answer. Sometimes a nod or a uh-uh
may not come across as a positive yes or no. How
long had your father owned the truck?
A A few yearB.
o Did he buy it new? Do you know?
A I I m not sure.
Q Now, at the time of the aooident, where
were you coming from?
A D.C.
o Washington, D.C,?
A Urn-hum.
Q When had you first gone there?
A I had went down earlier like on Friday.
o You went on Friday. That would have been
Friday the 21st?
A Yeah--the 21st?
MR. SHILLINGI This happened on the
22nd.
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1 MR. NELSON. So it would have been the--
2 BY MR. FRANKl
3 Q 20th?
4 A Yeah.
e Q The Friday before the Sunday?
6 A Yeah.
7 Q Where did you go in Washington, D.C,?
8 A To a friend's house.
9 Q What was his name?
10 A Her name. Brenna.
11 Q Who?
12 A Smith.
13 Q What wat her address?
14 A Not positive. I just know wher.e .1'1.
15 live..
16 Q Do you know her phone number?
17 A Not offhand.
18 Q You left from--on that Friday from
19 Newville then?
20 A Yeah.
21 Q Was Ms. Bell with you at that tim.?
22 A Yeah.
23 Q What time on Friday did you leave?
24 A I don't know for sure.
25 Q Did you leave in the morning?
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A I would say. Probably afternoon.
Q What was it, morning or afternoon?
A Like noontime.
MR. SHILLING I Objection. I mean it's
asked and answered. He said he didn't know when he
left.
MR. FRANKl
I got two answers, morning
and afternoon.
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MR. SHILLINGI His original answer was h.
didn't know when. That was his answer initially, he
didn't know when.
BY MR. FRANKl
Q For the record, what is the answer? I'm
not even 8ure what the answer is.
A I'm not sure.
Q So you don't know what time during that
day you left?
A No.
Q What was the purpose of your trip to go
to Washington, D.C.?
MR. SHILLINGI I'm going to plaoe an
objeotion again. This is not a depoeition to oover
everything. This is a deposition solely to
determine whether or not Plaintiff's Counsel has
reason to file a complaint.
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MR. FRANKl I understand. I just want to
know why he went on the trip.
HR. SHILLING I That has nothing to do
with the ability of whether you oan file a oomplaint
or oause of aotion in this oase as I see.
MR. FRANKl Your objeotion is noted,
MR. SHILLINGI Go ahead.
MR. NELSONI To vhit a friend.
BY MR. FRANKl
o Were you going down thsre in any way or
in any manner oonneoted with your work?
A No.
o So it was solely a personal visit?
A Yes.
o How long had you planned to .tay?
A Just the weokend.
o When had you planned to oome back?
A When we did.
o Sunday morning?
A Sunday--well, that Saturday evenin9,
sunday morning.
Q What did you do while you were in
Washington, D.C.?
A Just visit a friend.
o What did you do?
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MR. SHILLING I Objeotion.
MR, NELSONI That's what I did.
MR. SHILLINGI Relevanoy of the
question.
BY MR. FRANKl
Q Did you just sit in her house? Did you
go shopping? What di~ you do?
A We did all kinds of thinq8.
Q Like what, jU8t qenerally?
A JU8t spent some timft with her,
Q What did you do?
MR. SHILLING I I objeot. And at thh
point in time, this is a dep08ition for you to
determine whether or. not you have a reason to file a
oomplaint. I'm not qoing to allow it to beoome a
fishinq expedition.
MR. FRANKl It's not.
MR. SHILLINQI It i. beoau.e what he did
has nothing to do with the aooident.
MR. FRANKl It'. a .imple question. Did
you watoh Blookbuster movie.? What did you do?
That'. all. What did you do.
MR. SHILLINGI I'd like to have an offer
of proof a. to what this has to do with whether or
not you have an ability to file a oomplaint.
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MR, FRANKl That's just a baokground
question. I don't think it's even worthy of the
disoussion we've been having.
MR. SHILLINGI He answered. He s~id he
did a lot of things.
BY MR. FRANKl
Q When you left on Friday morning, what
route did you take?
A The same one I oame up on.
Q What route did you take to oome home?
A The same.
Q I have a map, road map. And does this
ro~d map show the roads and highways that you took?
A Yeah. I took 270 to Ill.
Q Where did you leave from Washington,
D.C,?
A I got onto 270,
Q I see 270.
A And I got on Ill. And I out aoross 74,
and got 81. And I was going to take 91 south, which
I did. And that's how I usually go.
Q Now, on this map, where on 91 south did
the aooident happen?
A I'd say between--like right off one of
the Carlisle exits.
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Q Right off Exit 14?
A I guess that's the number.
Q Going baok to what you ju~t teetifi.d to,
you came up 270, went to 11l?
A Urn-hum.
Q And was it your testimony then that you
came over and you got on 81 where, where did you get
on 81?
A 74. Right there.
Q And you were going--coming baok to
Newville, is that oorrect?
A Urn-hum.
Q Now, had you ever driven thie route
between Washington, D.C., and Newville before?
A Yeah.
Q How many times?
A Several.
Q When you were on 207, why didn't you just
stay on 81?
A The other one seemed shorter to me.
Q Did you ever take the other way, 81
north?
A
Q
No, not from 270.
What time did you leave Washington, D.C"
to return?
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A I'd Bay roughly around 11, midnight.
Q 11 to midnight. And how long of a trip
is it uBually?
A It dependB on how long you "top. I'd Bay
it'B probably about a three hour trip.
Q So you left between 11 and 12 Saturday
night?
A Yeah.
Q And MiBB Bell waB w~th you at that time?
A Yeah.
Q Prior to 11 or ~2100, when waB the last
time you'd Blept?
A In that afternoon.
Q How long did you Bleep in the afternoon?
A Like two hourB or something_
Q Prior to that time, when was the last
time you Blept?
A The night before.
Q Prior to you leaving at 11 or 12100 on
that Saturday night, had you had any alooholio
beverages?
A No.
Q When was the last time you had any
alcoholic beverages prior to returning home that
night?
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A Not that day. Not the Saturday/ but
pr.obably on the Friday/ that evening, early evening,
Q What did you have to drink?
A Probably about a beer.
Q When you left/ how was the weather?
A It was fair. It was night time so,
Q Was it raining?
A Not really.
Q Foggy?
A Not down there.
Q Was it olear?
A For awhile it was.
Q Did you have good visibility?
A Till I got to Pennsylvania.
Q After you had departed on your way baok
to Newville/ did you stop at any time?
A Yeah.
Q How long did you drive before you
stopped?
A I probably stopped like every 45 minutes
or something.
o Why did you--
A At a gas station.
Q Why did you stop?
A Take a little break, get some ooffss.
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Q Where did you stop? Can you remember?
A
Can't remember exaotly.
Were you originally planning to drive at
Q
night?
A Yeah, but not that late.
Q Why not?
A I was just wanting to get an e,arlier
start in the evening,
Q Why didn't you?
A It just didn't work out that way.
Q Why not?
A Lot of things.
Q What things?
A Like I took a nap and all kinds of
things.
Q
A
wanted to.
hadn't seen
Name a few more all kinds of things?
I ended up just staying longer than I
Wanted to spend time with friends I
in a while.
Q Now/ the aooident happened on 81/ is that
oorreot?
A Yeah.
Q Aooording to the polioe report/ and
oorreot me if I'm wrong/ it wae right near Bxit 14?
A Yes.
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(Whereupon, three photographs were marked for
identification as Plaintiff's Exhibit Nos. 1
through 3.)
BY MR. FRANKl
o Let me show you what's been marked P-l,
P-2 and P-3. They're 8 and a half by 11 colored
pictures looking southbound toward Exit 14 on 81.
I'll just ask you if you recognize that scene?
A Yeah.
o I take it--for the court reporter, could
you describe what you're looking at?
A Southbound 81 at Exit 14.
o You've driven that many times, you've
u,id?
A Yes.
MR. SHILLING I Objection as to the
question. I believe the queotion--the answer prior
had been that he'd been on it several times, not a
lot of times, I think, if we can go back and look at
the record.
BY MR. FRANKl
o But you had driven that on many
occaeions, is that correct?
A Yes.
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Q Now, there are markingB on the road there
in thoBe pictureB. Were they the 8ame markings at
the time of the acoident?
MR. SHILLINGI Objection as to the form
of the queBtion. If you want to aBk if--we have no
idea when theBe pictureB were taken. There's been
no offer of proof aB to when they were taken. If
you want to rephraBe the queBtion and Bay do they
look Bimilar to the markingB at the time of the
accident.
MR. FRANKl
I thought I did. I'll
rephrase the queetion.
BY MR. FRANKl
Q Do the roadway markings on that picture
look eimilar to the roadway markings at the time of
the aocident?
A From what I recall, yeah.
Q In other wordB, on the left-hand side,
there waB a yellow line?
A Yes.
Q There waB a dotted white line down the
oenter?
A Yeah,
Q And a 801id white line on the right side,
i8 that oorrect?
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A Yeah,
Q You indioated that you took ~oute 15 to
74, is that oorreot?
^ Yes.
Q And then you took 74 north to 81?
A Yes.
Q What exit number did you get on at number
81, Route 81, if you remember?
A I guess it would be the next exit. So it
would probably be 15.
Q The map shows 15. If YOU'd like to look
at the map again, just refresh your reoolleotion as
to the route?
A Yeah, it was 15,
Q Bxit 15. Had you gotten of~ of Bxit
15--onto 81 from Bxit 15 before?
A In my lifetime?
Q Yes.
A Yeah.
Q
hit 14?
A
Q
A
Q
What's the distanoe between Bxit 15 and
Not very far. I don't really know.
Couple miles?
I don't know.
What time did you get to Bxit 15, if you
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remembe,!:'?
A I dQn't remember offhand.
Q Had you done~~did you do all the drivin~
up until that point?
A Yeah.
Q Did Nina Bell drive at ail?
A No.
Q When you got on Exit 1~ and got on 81/
what was the weather like?
A When I had got on 91, I noticed it was a
little more foggy.
Q When had you first started seeing the
fog?
A After I had got into Pennsylvania.
Q Looking at the map, how many miles did
your trip take you into Pennsylvania?
A How many miles did my trip take me into
Pennsylvania?
MR. SHILLINGI Are you aSking him to
count up all the miles.
MR. FRANKl No. Just what he thinks.
50, 60 mile.?
MR. SHILLINGI It'. only if he know..
BY MR. FRANKl
Q If he knows. You can use the map a. a
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referenoe.
A I'd say 40 miles on an average.
a Of that 40 miles, how much of that mile.
or that time did you experienoe the foggy
oondition6?
A I'd say probably most of that time,
Nearer the mountains.
a When you got on 81 at Exit 10, what was
the traffio like?
A Very minimal.
a When you say minimal, what does that
mean?
A Like a oar every onoe in a while.
a What was the condition of the road
surfaoe on 81?
A It wasn't ioed or wet.
a Was it dry?
A Relatively, yeah.
a I think we've established, and you oan
also see from the map, that the distanoe between
Bxit 15 and Exit 14 is not that long. What lane of
t.ravel were you in between Exit 15 and Exit 147
A I had gotten in the left lane beoause the
right lane's rough.
a At what point is the right lane rough?
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o So you had been driving approxim$tely an
hour before the aooident?
A I would say.
o As you were traveling down the left~hand
lane between Exit 15 and Exit 14, what was your
speed?
A I was doing relatively the li~it.
o Just prior to the aooident, what lane of
travel vare you in?
A The left lane.
o At any time between Exit 15 and Exit 14,
did you travel faster than 55 miles an hour?
A No.
o Did you travel less than 55 miles an
hour?
A I don't think so.
o Now, you testified when you got onto 81
at Exit 15, Nina Bell was sleeping, right?
A Yeah.
o Were you tired?
A Not exoeedingly,
Q Were you tired?
A I was good to drive.
o Was your radio on?
A No.
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Q
A
Q
/lome?
A
Q
day?
-----~
You were going back to NeWVille, correot?
Yell.
How far wa. Newville from Exit 14?
I'd eetimat. 12 mile..
What were you going to do when you got
Go to IIleep.
S9 you were not going to 90 to work that
A No.
Q In your own worde, Mr. Nellon, would you
tell me how the aocident happened?
A Yeah. I wae traveling. And I had gotten
into a light patch of fog, And as the patoh
thiokened, I 5aw somebody .tanding on the highway.
And I swerved to miee him, and I didn't misl him.
o You hit him?
A Yes.
Q So it I understand what you jUlt told me,
as you were going betweon Exit 1/1 and 14, the fog
got thicker?
A Yeah.
o You obvioully had your headlights on?
A Yeah.
o Were they high beam or low beam?
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A Low beam.
o As you were travelin~ between 15 And 14,
beoAuse of the fog, how far oould you see in front
of your oar or truok?
A Don't know.
o How about in car lengths, could you
estimate in oar lengths?
A No.
o You've read a oopy of the polioe report,
is that correot?
A I think I have, yeah.
o Would you like to see it again--
A Oh, yeah, I have.
o I'll refer you to page 1191. Now, the
police offioer later took your statement, is that
oorreot?
A Yes.
o And on this polioe report, you're listed
as operator number 1. And let me read this
statement that you gave. .Operator number one
interviewed at the soene at 5115 as stated, I was
going the speed limit in the left lane, headed home
from D.C. He wae standing in the left lane near the
oenter line with his arms across his ohest faoing
me. I tried to swerve back over to the right, but I
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caught him on the left front. I stopped as 800n a8
I could and pulled on the berm. I ran back to where
he was lying, and I began to wave my arm8 trying to
8top traffic. It was pretty foggy. An Astrovan
type vehicle ran over the body in the left lane. So
I pulled him to the berm. The van had no place to
go as a tractor-trailer was to its right in the
right lane. Nina Bell, passenger of vehicle number
one, was a81eep and did not observe the accident."
Is that the statement that you gave to the police?
A Yes.
MR. SHILLINGI I'm qoing to object. I
think that last statement was a statement by the
police officer.
BY MR. FRANKl
Q Did you tell the police officer that Nina
Bell was asleep?
A Yes.
Q Did she a180 talk to the police officer?
A I'm not sure.
Q Ie that the statement you gave the polios
officer?
A Yes.
Q How far was Mr. Mapp from you whsn you
first saw him?
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A I oouldn't estimate.
Q You don't know?
A No.
Q In oar lengths or feet?
A Like I said, I really oouldn't eltimat,e.
Q In the polioe report, you uid that he
wal standing faoing you?
A Yel.
Q Could you tell me the posture of hie body
al he was standing there?
A Yeah. Right at the laet eeoond, I .aw
tnat hie arml were orossed.
MR, SHILLING I Let the reoord show that
the witness had oroeeed hie arme in f.ront of him on
his ohest when he said orossed,
BY MR. FRANK I
Q At the time of impaot, wal he .tanding or
moving?
A Standing.
Q Not moving?
A No.
Q Do you have any idea of how long of time
it wa. from when you firlt saw him till the impaot?
A I don't remember, Everything happened .0
h.t.
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Q What did you do when you fir_t saw
Mr. Mapp?
A Tried to swerve out of the way.
Q Did you hit your brakes?
A Yeah, but I didn't jam them.
Q You had time to hit your brakes?
A I would assume I hit my brakee. I didn't
leave any marks.
Q Let's back up. Did you hit your brakes?
A Yeah.
Q Did you leave skidmarks?
A I don't know.
Q 00 you recall how long it was or the
distance in car lengths from when you first saw
Mr. Mapp till when you hit your brakes?
A Like I said, it happened so fast. It all
happened at one time.
Q I understand that. But that wasn't my
question.
A That'. the only answer t oan give you.
Q But you did SWerve?
A Yeah.
o Can you give me any estimation of time or
distance from when you first saw Mr, Mapp till when
you swerved?
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MR. SHILLINGI Objection as to asked and
anlw.red.
BY MR, FRANKl
Q You can answer.
A I already have.
Q Did you blow your horn?
A No.
o Did you have time to blow your horn?
A I don't recall.
Q Mr. Nelson, I'll ask you to look at these
pictures again, P-1, 2 and 3, and ask you if you
could indicate on those picturss where the point of
impact was?
MR. SHILLINGI I'm going to object unless
we know that those pictures would depict exactly
where the point of impact was.
MR. FRANKl It does.
MR. SHILLINGI Again, we don't know who
took them or when they were taken. We have the
police report which indicates how far from the exit
that the impact took place. There'S no telling here
on these particular pictures where the actual exit
is, Exit 14, because it's not olearly shown on thele
pictures.
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.-------
.ymbol A--
MR. SHILLINGI Why don't we have the
~olioe report marked if we're going to be u.ing it.
MR. FRANKl You oan mark the front ~age.
(Whereupon, the police report was marked for
identification as Plaintiff's Exhibit No.4.)
BY MR. FRANKl
Q Mr. Nelson, we just had marked the polioe
report as P-4. Attaohed to the polioe report wa. a
sketoh and a diagram of Route 91 going southbound.
I'll again refer you to the table of measurement..
And the polioe calculated their measurement.. If
you look at mea8urement A, it wa. the initial point
of contact between unit one and the pedestrian.
Unit one, in this police report, is you and the
pedestrian is John Mapp.
I'll ask you to look at the police re~ort
at what has been marked as A. That would be over to
your left. Now, ba.ed on thi. police report a.
.howing that the point of impact was 140 foot 10
inches from the reference point, would Y0U agree or
disagree with that measurement in the ~olioe
report?
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Mr. Mapp just prior to impaot.
A l'd say where they have it on the police
report is good.
MR. SHILLlNGI It's IIhown on the police
report as A.
BY MR. FRANKl
Q You would agree with the location on the
polioe report?
A Yeah.
Q III that where Mr. Mapp wall IItanding at
the time you hit him?
A Right about there. I oan't know for
sure,
Q Right about Where, speoifioally? Tell
me.
A Where they have it marked on the police
report.
Q What lane was he in?
A The left lane.
o Where was he standing in the left lane?
A I'd lIay a little more near the dotted
whito line.
Q JUllt prior to impaot when you saw
Mr. Mapp standing there, did you see that dott~d
white line?
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A I don't recall.
Q Did you see any line?
A No. I mean I don't recall.
Q ~et's go back to the polioe report and
the table of measurements. They have your oar after
the impaot ooming to rest 453 feet beyond Exit 14?
A urn-hum.
Q Is that oorreot?
A I agree with the polioe report.
Q What's your personal recollection of how
far you stopped beyond--what's your personal
reoolleotion of how far you stopped after the--you
passed this point at the Exit 14?
A I really don't have any idea beoause I
oouldn't even see out my windshield--I mean barely.
Q Why not?
A Because it was broken.
Q Any other reason?
A No.
Q How about the fog?
A The what?
Q The fog.
A It WaB foggy. But I mean with the broken
windshield, I oouldn't see much.
Q You also couldn't Bee beoause of the fog,
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isn't tpat oorreot?
MR. SHILLINGl Objeotion.
MR. FRANKl Let me rephrase,
MR. SHILLINGI You oan't ask leading
questions.
BY MR. FRANKl
Q Was your visibility also limited beoause
of the fog?
A I would imagine, yeah.
Q So is that a yes?
fI. Yes.
Q Now, the polioe report also shows tpe
truok here, and it shows the truok very olose to
Exit 14. Did you see the truok that night?
A Yeah, I did.
Q Would you disagree with the polioe report
showing the location right near Exit 14?
A I'd say they were close.
Q So you don't disagree with any of the
measurements in this polioe report, is that oorreot?
MR, SHILLINGl Objeotion.
MR. FRANKl If he disagrees, let him tell
me.
MR. SHILLINGI JUst as to the form of the
question. You oan answer.
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MR. NELSON I loan' t say I agree or
disagree. I know they took the mqaBUrements and
they probably have a good idea. So I'm t~~t going
on what they said.
BY MR. f'RANK I
o Just let mo establish this for the
reoord. Do you know how far you were from Bxit 14
when you struok Mr. Mapp?
A No, I don't.
o Do you know how far Mr. Mapp--Mr. Mapp's
body oame to rest from Exit 14?
A No, I don't.
o Do you know how far Mr. Mapp's truok was
from the point of impaot to where it was parked?
A Besides these reoords, I don't.
o Now, just prior to striking Mr. Mapp, did
you see the truok?
A I don't really reoall if I saw him before
or after. Like before--I don't know. It was all
just kind of jumbled up at that time.
o You saw the truok at some time?
A At some time because I didn't go left,
o I believe acoording to the polioe report,
after the aocident, you got out of the oar and ran
back on Route 91. Ie that correct?
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A Yes.
Q Did you pass the truok then?
A Yeah, I definitely knew there was a truck
then,
Q Did you know there wae a truok there
before then?
A I didn't know there wae a trUck. I knew
there was something there.
Q When did you first eee what you thought
was something there?
A When I got out of my truck,
Q Not bofore?
MR. SHILLING I Objeotion. I don't know
if you understood. Listen to the queetion, I don't
think you're anewering baeed upon what he's aSking.
(Whereupon, the reporter read baok the last
question. )
BY MR. FRANRI
Q Meaning the truok.
A When did I firet eee it?
Q Urn-hum.
A I don't reoall. It was Borne point along
the time between--I had eeen Bomething but I don't
remember when it waB exaotly.
Q WaB it after you had hit Mr. Mapp?
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A I believe it was right before.
Q But you're not sure?
A No, I'm not sure at alL
Q Was Mr. Mapp standing on the ber.m of the
road?
A No.
MR. SHILLING I Objection. Then
questions were asked and answered.
MR. FRANKl I didn't ask that.
MR. SHILLINGI It was anewered as to
where he was.
MR. FRANKl I didn't ask that question.
MI,\. SHILLING I That's repetitious.
BY MR. FRANKl
Q Why do you believe that Mr. Mapp was not
standing on the shoulder of the road?
MR. SHILLINGI Objection. We have gone
over where Mr. Mapp was standing at the point of
impact, He's already answered that queRtion. We're
now getting into repetition. It's been clearly
stated in the record where he saw Mr, Mapp just
prior to the impact and at the point of impAct.
SY MR. FRANKl
Q Was there any cars in fro~t of you prior
to the impact?
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A I oan't make that--I don't know.
I would have.
Q I'm sure you wish you would have. I
understand that, Mr. Nelson. But my question is
from the first time you saw Mr. Mapp until the
impaot, would you have been able to etop your oar
within that distanoe?
A I oan't answer that.
MR. SHILLING I I'm going to objeot to the
oonclusion as to the ability of stopping the vehiole
in question.
I whh
,...)
MR. FRANKl I'm asking him whether he
oould have brought his vehiole to a ~top at the
point he saw Mr. Mapp on the road.
MR. SHILLINGI That oalls for an expert
oonol us i ,.,',1.
MR. FRANKl I think everybody should know
whether he ~an stop his oar.
MR. SHILLINGI He knows whether he oan
stop it, but whether or not he oan stop it in
sufficient time to avoid an impaot--
MR. NELSON I I can't make that answer.
BY MR. FRANKl
Q Why not?
A Because I have no idea, I barely reoall
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the inoid~nt let alone if r oould stop.
Q If you had been driving slower, do you
think you oould have stopped your oar?
A Again, r really oan't make that answer.
I don't have any experienoe in that.
Q Experienoe in what?
A In stopping distanoes of vehioles,
Q After the impaot, what happ~ned?
A I pulled off to the side of th~ road.
Q Again, we'll go baok to the polioe
report. The polio~ report has your car--and if my
math is right--some 150, 160 yards back to where
Mr. Mapp was laying.
A Yeah.
MR. SHILLING I Objection. I think the
report shows that the final resting point of the
deceased was 37.4--37 feet 4 inches east of the
reference point. Final resting point of the
Defendant's vehicle was 405 feet 8 inches west,
MR. FRANKl That's right. Let me ~sk him
this question.
BY MR. FRANKl
Q When you got out of your car, Which way
did you run--or did you run baok to Mr. Mnpp?
A Yes.
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Q
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Which way did you run?
Back to him.
Northbound?
I would imagine.
Did you run on the grass, the berm or the
road?
A
Q
A
that is,
Q How far did you perceive that to be? Do
you recall how far that was?
A I don't have any perception.
MR. SHILLING I I'm going to objeot. I
think the reoords which have been put into evidenoe
speak for themselves as far as distanoes are
ooncerned. And he's already stated prior to that he
has no independent knowledge of the distanoes that
are shown in the police report other than what's in
the polioe report.
MR. FRANKl Thank you.
BY MR. FRANKl
Q Do you recall how far you had to travel
between your truok and where Mr. Mappwl1s laying?
A No.
I ran down the road.
How far did you run?
Baok to where he was laying, however far
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Do you ruoall passing his truok?
Vaguely.
Do you reoall passing the Exit 14?
I knew I was at Exit 14.
How far did you run or walk before you
6 reached Exit 14? Do you recall?
7
8
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Q
No, I don't.
Do you recall how long--
9 MR. SHILLINGI I'm going to object to
10 this line of questioning. I think we're getting
11 argumentative. He stated he didn't know the--
)
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13
facts, it's never argumentative,
MR. SHILLINGI It's been well covered.
14
MR. FRANKl When I'm asking for the
1a And we're now going over the same ground again. He
16
doesn't know the distanoe..
I think we need to move
17 on.
18 BY MR. FRANKl
19
Q
When you first reached Mr, Mapp, where
20 was he--his body lying?
21
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Right there where the polioe sketch has
22 it. Where the blood was.
23
Q
That would be 37 foot just passed the
~
24 apex there from Exit 14, i. that what you recall?
2a
A
If that's what the polioe report .ay..
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Q
I'm asking you, do you reoall that?
I've already told you that, I don't
A
3 recall.
4
Q
00 you recall how far past the truok
5 Mr. Mapp's body was lying?
6
A
No, I don't. I didn't take that into
7 oo~sideration. I'm going to have to take a break to
8 go to the bathroom.
9 (Whereupon, a short reoese was taken,)
10
MR. SHILLING I During a disoussion with
11 Couneel off the reoord and talking about the diagram
"'
12
that was prepared by the State Polioe offioer, the
,
,
13 State Polioe offioer is Ihowing the initial point of
14 impaot whioh is marked al A as being ealt of the
15 referenoe point and showing point B, whioh is the
16 final resting point of the deoeased, being eaet of
17 the referenoe point.
18 The offioer further has the truok drawn
19 on the diagram being weet of the referenoe point on
20 the diagram, but on his table of measuremente shows
21 the truok al being east of the referenoe point. And
22 therein is a disorepanoy--at least one disorepanoy
23 involved in the diagram and the table of
"..)
24 measurements as to whether or not that "E" should
25
have been a "1'1" or if the truok is mieplaoed. And
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that we don't know.
MR. /i'RANKI I would agree that it nlJllds
an explanation as to the relative Bcale and location
of the truok on the diagram.
BY MR. FRANKl
Q Let me ask you, Mr. NelBon, you were at
that acoident soene for how long that night?
A Two, three houts.
o By that time it was daylight, wasn't it?
A Yeah. But I had left when the sun came
up.
o You eventually did see the truok, is that
oorre.ot?
A Yeah.
0 Where was it parked?
A When I had saw the truok, I was down in
here. So I oan't really give you--li)ce to the
reference point I don't know.
MR. SHILLING I When he Baid down in here,
he waB pointing to the middle diagram of the three
diagrams.
BY MR. FRANKl
o You indioated you were there for two to
three hourB. You Been the truck during that period
of time, didn't you?
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A Yeah.
o Where wal it parked?
A To the referenoe point, I don't know,
becaUle I wal hever standing at the reference point
looking at the truok.
o Where was it parked in relationship to
Exit 14?
A Right near the exit. Of either side I'm
not sure, like I said.
o Likewise, unfortunately, Mr. Mapp's body
Was there for sometime, wasn't it?
A I would imagine, yeah.
o Where was Mr. Mapp's body lying in
relationship to the truok?
A I'd say behind the truck.
o How far?
A I really oouldn't make that distanoe.
o Could you estimate oar lengths?
A No, I oouldn't make any estimates about
any of these measurements, as I told you,
o Now, immediately after the impact, what
did you do?
A I slowly made it to the berm of the road.
o What was the damage to your truok?
A Front left Was a little bit, I guess,
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oaved in a little bit, and the windshield wa.
shattered.
a Any damage to the ~ight side?
A Pon't think so.
a No damage to the front of the truok?
A Well, the front left.
a I mean the front itself?
A No.
a Any damage to the side of the truok?
A Don't think so.
a Now, you eventually went baok to give
assistanoe to Mr. Mapp, is that oorreot?
A Yeah.
Q What was his oondition at that time?
A When I had got there, I didn't get a
ohanoe to go right to him. I was trying to flag
down poople that I saw coming. And before I got a
ohanoe to see him, he got ran over again.
a Before you even got to him?
A Like when I was getting there, there was
oars ooming.
a How far were you from Mr. Mapp when he
was run over again?
A I waB right beside him, I went to get
him out of the way. And the oar--right as I got to
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him, cars were coming. And I ended up jumping out
of the way from getting hit.
o I may have asked you this before the
break. But where was Mr. Mapp's body located on the
roadway when you ran up to him?
A Riqht about where they have it on the
sketch.
o In that loc.tion?
A I would say.
o In the left lane?
A Urn-hum.
o Where in the left lane with relationship
to the oenter line and the berm?
A I'd say right about the middle.
o Now, as you were running baok from your
oar to Mr. Mapp, was there any traffic ooming by
you?
A I don't recall. I don't think so.
o I believe in the police report, you
desoribed the vehiole that hit Mr. Mapp as an
Aerovan?
A Something liko that.
o Do you reoall--what oan you tell me 4bout
that van?
A That's all I remember. That it was a
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white or silverish aolor and that it almost hit a
traator~trailer to try to swerve to miss him, bu~ it
oouldn't swerve out of the way.
o Were you able to get its lioense number?
A No, not at all.
o Were you able to see or identify the
driver?
A No. r couldn't see anything. I had to
dive out of the way for my life just about.
o At that point in time, at the time you
were standing next to Mr. Mapp's body and the
Aerovan aame back, was there anyone else there?
A No.
o Were there any other witnesses?
A Not that I saw or anything.
o Where was Miss Bell?
A She was still back in the truok. I told
her to stay there, not to do anything.
o What did you do after the Aerovan ran
over Mr. Mapp?
A I ran over and pulled him to the side of
the road.
Q At any ti~e did you see any signs of life
in Mr. Mapp?
A I didn't know. I just wanted to mak~
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sure I got him to the Bide of the road before
somebody els8 ran him over.
Q Did you ever observe any Bigns of life in
Mr. Mapp?
A I r.ally don't know. I didn't Bee
him--like by the time I had pulled him to the Bide
of the road, he wasn't alive, I don't think. I'm
not an expert.
Q So you didn't really see him before the
van hit him""
A Not really.
Q And the van never stopped?
A Not at all.
o Neither did that tractor-trailer?
A No.
o And they both had to Bee that?
A I don't know if the tractor"trailer did,
but I'm sure the van did.
o What happened next, Mr. NelBon?
A Another. guy waB coming down the road, and
I got him to stop. And I told him to go to the very
n$xt exit and call the police and everybody.
o You indicated that you pulled Hr. Napp'.
body off the r.oadway, is that correct?
A Mostly, yeah.
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Q
A
Q
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roadway?
A
How far did you pull his body?
Not very far.
How far?
A oouple feet.
Did you get his body oompletely ott the
I don't remember.
Q Who oall~d the polioe?
A I'm not sure what his name wa., I didn't
talk to--
The motorist that eventually stopped?
Yeah, he went down the next exit and
Q
A
oalled.
Q He never oame baok?
A I don't reoall. I think the fire people
made it there first--or the ambulanoe or whatever.
Q Who else was at the soene of the aooident
that night besides yourself?
A I didn't know that there was anyone el..,
but they tell me now that there was a Mr. Olson, I
guess, supposedly sleeping in the truok.
Q Did you ever see Mr. Olson that night?
A Right before I left. They let him cqm.
down and talk to me.
g Did you Beo him at any time when you came
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baok to Mr. Mapp'~ body?
A No. They came up when they wo~e him up
when the police qot there.
o How do you know they woke him Up?
A They told me.
o How long after the aooident wa~ it that
you did see him?
A I'd ABY at least an hour. I don't know.
I'm not really sure.
o Durinq that hour, were you there with
Mr, Mapp's body the whole time?
A No. In fact, when the police qot there,
they sent me down to a medical unit. And I stayed
down there and pulled qla~s out of my skin for about
an hour and got ant.ibiotic stuff 011 my faoe and
stuff.
o Now, I'll ask this to be marked. I'll
ask you to identify this. And I believe you
identified it as your statement?
A Yeah.
(Whereupon, a stat~ment was marked for
identification as Plaintiff's Exhibit No.5,)
BY MR. FRANKl
o Do you have a copy of this in front of
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A Yeah, I did.
MR. SHILLINGI You missed a word. It
said, "I just caulJht him," not "I oaulJht him".
MR. FRANK I If I misread that, I
apoloqize.
BY MR. FRANKl
Q In there you say it was very foqqy. What
did you mean by very fOlJlJY?
A Heavy foq, but it was patohy.
Q The next question, "All rilJht. You Bay
it was real foqlJY out at that time." And "Yeah". I
know I've covered this because it's important, but
real fOlJqy means what? I mean how far could you see
ahead of your oar?
A Like I said, it was patchy. Some places
it was lilJht fog, some plaoes it was heavy f0lJ.
Some places the fog would move. It wasn't a
definite thing.
Q You indicated it was heavier fog at the
point of impaot?
A Yeah. It lJot heavier as I oame down off
that little bump.
Q Going over to paqe 2, and there'. a
question from page 1, "What lane were you traveling
in?" Bottom of page one is the question what lane
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Were you traveling in, and top of page two is yo~r
answer. "I figured it waB the left lane beoause I
wasn't real olear about the aooident when it
happened heoause it was--I don't know--it was like
all of a sudden it happened at onne. I'm almost
positive it was the left lane." Do you rememher
that question and ansWer?
A Yep.
Q Now, you used the word, "I figured it was
in the left lane." Why did you use the word "I
figured"?
A Well, like I had said, it happened all of
a Budden. I mean, I was in thl!l left lane. But it' B
all kind of foggy in my hrain.
Q A1Bo, you Baid, "I waBn't real olear
about the aooident." And I raiBe that queBtion is
that are you Bure you were in the left lane?
A I wouldn't Bay Bure, but that'B what I
would aBBumll.
Q So you're assuming you were in the left
lane?
A I remembllr being in the left lane now,
but right as it happened when everyone was aBking
me, my brain was just kind of jumbl$d.
Q 80 you're saying you didn't know what
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lane you were in?
A I do, I remember I was in the left lane
now.
o But you're telling you didn't remember at
the time?
A When he asked me, I just meant that .. a
statement. I knew I was in the left lane.
Q Why didn't you say that at the time?
A I quess I just didn't.
o Likewise, how do you know that Mr. Mapp
was in the left lane?
A Well, he was in front of me.
o Is that why you're aSBuminq he was in the
left lane?
A I was in the left lane, and he was
standing in front of me so.
o But you're not sure?
MR. SHILLINGI Objection. That's not his
statement.
MR. PRANKI That's my question.
MR. SHILLINGI You said you're not sure.
His statement was he knows today what lane he was
traveling in.
MR. PRANKI But his testimony was at the
time of his accident, he wasn't sure.
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.---------------.---
MR. SHILLING' His testimony was at the
time the interview was made when people were asking
him questionj. His testimony was not at the time ot
the aooident.
BY MR, FRANJ<,
Q At the time of the aooident, what lane
were you in?
A I was in the left lane.
Q Are you sure ot that?
A I would say I'm sure.
Q But in your statement, you 8IIY you
weren't olear about that o~ how the aooident
happened. I'm trying to understand.
A What I meant I wasn't olear about
everything that had happened.
Q Inoluding what lane you were in?
A I knew that--well, I knew that.
MR. SHILLING, Counsel, you're not doin9
oro.s examination. We're doing a deposition, and
you're aoting as it it's a cross examination. He's
explained, I think, quite olearly as to the
reasoning behind the way that the testimony was
given and in the reoorded statement.
MR. FRANJ<, There's a differenoe betw.en
what he testified to and his st~tement.. And I ju.t
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A I could 8ee my hand in front of me.
o "ow far in front of your hand could you
...7
A Like I said/ I really oan't make that
e.timate.
o Looking at your statement here at the
point of impact, could you see at al17
A Yeah. Like I said, the fog had got
thioker. So whsre I was, I could see through the
foq, But maybe where he was / I couldn't. I'm not
lure.
o After the impact, you pulled off the
road/ correct?
A Yel.
Q Was it still the same fog that you were
in7
A It was a little different there.
Q What wal different about that?
A It wasn't as~-it wasn't quite al thick
off to the lide of the road. It was jUlt patchy fog
allover the plaoe.
Q So it wasn't as thiok on the side of the
road when you pulled off?
A I oan't remember my reoolleotion, I
didn't stop and say what the fog looked like,
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Q Isn't that what you just said, it wasn't
as thiok?
A It was just patohy is what I'm tryin9 to
explain.
Q In your statement--and I just want to
olarify this--on page three about the fourth
question where it says, "Okay. All ri9ht. So then
how soon after did it take you to stop your
vehiole?" Answer, "Well, when I hit him, I oouldn't
see out the windshield. So I took it easy pullin9
off to the side of the road beoause I really
oouldn't see where I was going." Do you remember
that question and answer?
A Yes.
Q Why oouldn't you see where you were
90ing?
A Beoause the windshield was spider webbed.
o All the way aoross?
A Yeah.
o How about the tog, did that cause you any
visibility problems?
A I'm sure it did a little.
MR. SHILLING I We've been over that,
Couns.l, before. You've already asked those s.ms
questions.
66
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1 BY MR. FRANKl
2
o
Any other witne.eee at the eoene of the
3 aocident other than thQ ones we've talked about?
4
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No.
15 a valid driver'e lioenee?
At the time of the aooident, did you have
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Sure did.
Had you had any prior moving violatione?
I had two speeding tiokets in the paet,
When?
'88 or something.
How faet?
I don't reoall.
Did you ever have your lioens. suspended?
No.
17 aocumulating too many points?
Did you ever have to go to a sohool for
18
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A
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Yeah, I did, from the two epeeding
So they were pretty oloee together?
Yeah, like the next day.
What kind of road did that happen on?
......)
24 wae middle of the woods somewhere.
Interetate. One was interetats and on.
n
Q
How fast were you going on the
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intex-etate?
A Like I eaid, I don't X"emembeX" whet the
ticket wae foX".
Q Did you eveX" have any prioX" accidente?
A No/ I don't think so.
Q You don't think SQ--I mean you'd know if
you had an accident, I would think?
A No.
Q The queetion ie did you have any prior
accidente?
A No.
Q Have you had any conveX"eationB about thie
accident with anyone else othex- than your Attorney
or the insurance company?
A I'm Bure I probably have.
Q Who?
A I couldn't tell you. I don't know,
Q You don't know who you talked to?
A I'm eure I've mentioned it to juet about
everybody I know. I mean I don't eit arouhd and
talk about the details with nobody.
Q You weren't working at the time of the
accident, iB that correct?
A Yeah / I WAB.
Q I mean--
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do with this cftse, ftnd criminftl convictions cannot
come in.
BY MR. FRANKl
Q Let me ask you this. Were th6 criminal
convictions within the last t~n years?
A Yeah.
MR. SHILLINGI I'm still going to
instruct him beoause unlesa it's--it oannot oome
into evidence. It's not evidential and it has
nothing to do with filing the oomplaint. I'm going
to instruot him not to answer.
MR. FRANKl We may cure it ncw just
onoe. I know that oould be the end of it.
otherwise, down the road, I'm just going to ask him
again.
MR. SHILLINGI Then I'll probably objeot
again and instruot him not to answer.
BY MR. FRANK I
Q Have you ever spent any time in jail?
MR. SHILLINGI Put onto the record that
any oriminal conviction had to do with a law dealing
with oontrolled substances, not with using, though.
BY MR. FRANKl
Q Did you have controlled substanoe. with
you t~e night of the aocident?
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MR, 6IlII,I,IlW I Objeotion, It do..sn' t
have anything to do with this oase as to whether she
did or not,
BY MR. FRANKl
Q I'll ask through your Counsel you provide
her name and address for me.
A I don't even know if she lives there or
not,
MR. SHILLING I If and when a oomplaint
hal been filed, Information that you wish to get
you oan go through a request for produotion.
BY MR. FRANKl
Q Did the ~olioe take your blood alcohol
that night?
A Yes,
Q Do you recall what the resulte were?
A No,
MR. FRANKl Thank you.
EXAMINATION
BY MR. SHILLINGI
Q Mr. Nelson, when you said that the police
had taken your blood aloohol, did they aek to take
your blood alcohol?
A No. I volul\teered,
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Where was that taken at?
A
Carlisls HQspital.
And that was taken befors the police,
3
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. 4 though?
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Yeah.
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And the report was submitted to the
7 police?
B
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I really don't know. They took it from
9 there.
10
MR. SHILLING I Nothing elu.
(The depolition was ooncluded at 2140 p.m.)
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1 CERTIFICA'rE
2 I, MARJORIE M. LALLY, Certified Shorthand
3 Reporter and Notary Public duly and qualified in and
4 for the State of Psnnsylvania do horeby oertify
5 there oame before me the deponent herein, namely
6 kRISTIN LEE NELSON, who was by me duly sworn to
7 testify to the truth and nothing but the truth
8 oonoerning the matters in this cause.
9 I further oertify that the foregoing tranloript
10 is a true and oorreot transcript of my original
11 stenographio notes.
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12
13
I further oertify that I am neither attorney or
oounsel for, nor related to or employed by any of
14 the parties to the action in whioh this deposition
15 is taken, and furthermore, that I am not a relative
16 or employee of any attorney or oounsel employed by
17 the parties hereto or financially interested in the
18 action.
19 IN WITNESS WHEREOF, I have hereunto let my hand
20 and affixed my Notarial Seal thiB d/& day of
21 JULY, 1995.
22
23
,/};1 CLit~...1. ~ .51- ,'-
MARJO E M. LALL
CERTIFIED COURT REPOR
24
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NOlarl.' S.a'
MArlorl, M. LAIIV. Notary Publlo
BUller Twp" SchuVlkll1 County
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75
3. PlalntiWa Complaint arise. out of an automobile accident which occurred 0" or
about lune 27,1993 on Intentate SI, southbound in Cumberland County near exit 14.
4. In Paraifaph 9 of the Complaint, Plalntift'alleges, ". . . where he may have
inallted controlled substancel . . ."
5. In ParliJ'aph 23 of the Complaint, Plalntift' alleges, "The accident In queltion
re.ulted trom the carelet.ness, negligence, recklessnes., if os. negligence, wanton and willful
misconduct ofDefendant Nelaon, which Included, but is not limited to, the following: (a)
Operatins a motor vehicle while under the Influence of controlled substances which rendered
Defendant unl1t/unsafe to operate his vehicle. (KIl Parlllraph 9 l\IIlU) . . , "
6. No telting was ever done on the Defendant by the State Police who Inveltipted
the accident.
7. These allegations are scurrilous In nature and without foundation.
S. Theae allegation. are not properly admitted under the Pennsylvania Rules of Civil
Procedure.
9. There Is no foundation in fact or In other that substantiate these allesatlon..
10. These alleSatlons are inflammatory, prejudicial and not relevant.
WHEREFORE, Kristin Lee Nelson respectfully requests this Honorable Court to enter
Order ifantlng Krlatin Lee Nelson's demurrer by striking Paragrapha (I and 23(a) of the
Complaint.
B. PRELIMINARY OBJECTIONS IN T~E NATURE OF A MOTION TO STRIKE
UNDER RULE I02S(1I)(4\. OR IN THE ALTERNATIVE. A MOTION FOR MORE SPECIFIC
PLEADING UNDER RULE 1028(a)(3)
II. ParliJ'aph. I throullh 10 are incorporated herein by reference as if fully aet forth It
lenath.
12. Paraifaph 23 of the Complaint alleges that the Accident resulted from the
car.lellnesa, neallsence, recklellness, grolS nealillence, wanton and wllIl\JI misconduct of the
Defendant as follows:
"(u) Violatinll the statutes of the Commonwealth of Pennsylvania and
the reaulations of the County of Cumberland; and
(v) Such other unlawI\Jl acts or omlulons as may be revealed durinll
the discovery and trial of this cue."
1J. Rule 10 19(a) of the Pennsylvania Rules of Civil Proceduresslates, "The material
licts on which a cause of action is hased shall be stated In a concise and summary form."
14. ParliJ'lphs 23(u) and (v) of Plain till's Complaint are improper in that they are
vque and unspecil1c allegations, and the Defendant is unable to determine what neallsent act la
belnll a1lelled with the respect to the quoted oflanauage.
15. ParliJ'aphs 23(u) and (v) are catch.all allegations which are vaaue, unspecific and
do.. not Inform the Defendant of what negligent act is being alleged.
WHEREFORE, the Defend&llt, Kristen Lee Nelson, respectfully requests this Honorable
Court to enter &II Order striking Paragraphs 23(u) &lid (v) from Plalntill's Complaint or, in the
alternative, require Plalntift'to submit a more specific pleading In 8Ccord&llce with P.nn.ylvanla
Rules of Civil Procedure.
Penn.ylv.nia.
3, Pl.intiff'. D.o.d.nt i. John Irn..t M.pp, D.o....d, who
i. the .on of Plaintiff, J.rry Mapp,
4. On or about Jun. 27, 1993, .t approximat.ly 4140 A.M.,
Def.ndant Nel.on wea op.raUn9 I 19815 Muda pickUP truck in a
.outh.rly direction, on Int.ntat. 81 in the oounty of CUab.rland,
Pennsylvania. '
15. Th. aU.qationl
infra, ar. ba..d in part
und.r inv..ti9atio".
6. On or about Jun. 27, 1993, Plaintiff'. D.o.d.nt, John
Ern..t Mapp, D.C..I.d, had pull.d ov.r hi. tractor trail.r on the
m.dial .trip of Int.r.t.t. 81 at or near .xit 14. Aft.r .xitin9
the truck, he walk.d northbound b.hind hi. truck toward. the exit
ramp that he had ju.t pall.d,pre.umably to vi.w the .xit ra.p.
7. plaintiff beli.v.. and theretor. av.r. that at the ti..
ot the acoident, D.cedent w.. walkinq/.t.ndinq on the ..dial .trip
and/or .houlder of Intentat. 81 and w.. not on the trav.lled
portion ot the highway.. alleqed by the D.f.nd.nt.
8. At all tim.. r.l.vant her.in, D.c.d.nt'. oonduot wa.
r.a.onabla and n.c....ry qiv.n the oircum.t.noa. and condition.
then axi.Unq.
.et forth in paraqraph 6
on information and beU.f
throuqh U
and r.main
-2.
II. Defendant'. conduct on the other hand wu not.
rauonable. Defendant wu nturninq home wit.h hi. qirlfriend
after travellinq out of .tate t.o vi.it friend. where he .ay have
inq..ted cont.rolled eub.tance.. Thi. i. .Ull under
inv..tiqaUcn.
10. Aooordinq to t.he Police Report, the fat.al i.pact. wit.h
,
Plaintiff'. Decedent ocourred ju.t north of exit. 14 at. Mile Po.t.
46.5 in carli.le Borou9h. Thi. i. .t.ill und.r inve.t.i9at.ion,
11. Plaint.iff believe. and therefore aver. t.hat. at. t.he t.i.e
of the aocident, the Defendant wal fatiqued, inattentiv4 and may
have fallen a.le.p while operat.inq hi. vehicle.
12. plaintiff believe. and ther.fore aver_ t.hat at or about.
the tilDe of impaot, the Detendant drove hi_ vehicla ont.o the
.houlder and/or medial .trip where Decldent wa. walkin9/_t.andinq
and .truck Deced.nt wit.h t.he left. front of hi. vehicla.
13. plaintiff balieve. and therefore aver_ that at or about.
the ti.e of impact, Defendant. turned hi. vehicle .harply to the
riqht. in an effort to qet back onto the travelled portion of the
hlqhway. However, Ddendant waa unable to avoid .t.rikinq t.he
Decedent.
14. At the tilDe of impact, Defendant. val traveUinq t.oo fut.
-3~
for cQnditione .akinq it impoeeible for Deoedent to avoid beinq
etruck.
15. Plaintiff believe. and therefore avere that the i.plot
clueed Decedent'e body to be thrown onto the travelled portion of
the hiqhway.
1~. At all time. relevant herein, Defendant wae operatinq
hie .otor vehicle in a carele.., reckleee and unre..onable .anner.
17. At all ti.ee relevant herein, the Defendant WI.
operatinq hie motor vehiole in exoeee ot the leqally poeted epeed
li.it and/or in exoeee ot a epeed which wae rea.onable and eate
tor the condition. exietinq.
18. Detendant aver. that at or about the ti.e of i.pact hie
vi.ibility wae obltruoted by toq. Thi. i. etill under
inv..UqaUon.
19. While the Deoedent WII lyinq on the hiqhway in a
helple.. condiUon, Defendlnt hUed to take Ippropriate e.erqenay
.eaeure. to prevent turther harm to the Decedent.
30. AIIIonq other thinqe, Defendant .hould have poeit1oned hi.
vehicle on the rOldway eo .. to protect the Decedent and warn
other .otori.t. ot the prelence ot an injured pede.trian on the
hiqhway. Hi. tailure to do eo WI. neqliqent.
31. A. a re.ult ot Detendant'. tailure to take .1,101'1 'otion
-4-
in a ti.ely .aoner, Deoedent wal .truok a .econd and po..ibly a
third ti.e by other vehicle. a. he lay helple.. on the hiqhway.
A. a re.ult, Decedent i. belieVld to have .uftered qre.t pain and
.ufferinq before hi. death.
a2. Aooordinqly to the polioe Report, Defendant'. vehiole
o.m. to r..t more than 450 teet after point of i.paot on the riqht
.houlder of Inter.tate 81.
a3. The acoident in queltion r..ulted fro. the oar.h..ne..,
n.qliCJeno., rackle..ne.., qro.. ne9ligeno., wanton and willful
ai.oonduot of Defendallt Hel.on, which inoluded, but i. not liait.d
to, the followin91
a) operatin9 a motor vehicle whUe under the influenCle
ot oontrolled .ub.tance. which rendered Defendant unfit/un.ate to
operate hi. vehiole. (ala Para9raph 9 .UDra)I
b) operatin9 hiB motor vehiole in .xo... of the
l.qally po.ted .peed,
0) Operatinq hi. .otor vehiole at a un.af. .,.ed,
d) Operatin9 hi. vehiole in a .anner not Clon.i.tent
with road and weather condition. prevailinq at the afore.aid ti..
and plloel
e) Failin9 to drive at a .peed and in a aanner that
would allow hi. to'.top within the a..ured olear dietanoe ahead,
-5-
I) rall1ng a.l.ep while driving,
g) ..ing inatt.ntiv.,
h) railing to ... and ob..rv. the D.c.d.nt,
1) Driving and operaUng hi. v.h1cl. on the
.hould.r/b.ra/m.d1al .trip ot Int.r.tat. '1,
j) railur. to .x.rci.. due car. und.r the all
circum.tanc..,
k) 'ailur. to take r.a.onabl. .nd n.c....ry .t.p. to
protect the D.c.a..d on the highw.y att.r Itriking D.c.d.nt.
1) railing to have hi. motor v.hicl. und.r prop.r .nd
ad.quat. control,
a) railing to k..p a prop.r lookout,
n) r.lling to .pply hi. brak.. or tailing to .pply
brak.. in . tim.ly m.nn.r,
0) 8triki.ng the Dec.ased,
p) r.ilur. to .ound hi. horn or to provide a varn1n,
of any kind to the D.c....d'
q) railing to yi.ld the right ot w.y to a
p.d..trian,
r) Driving in tog at . .p..d that v..
un..t./unr...on.bl.,
-6-
.) raiUng to reduco hb .pood a. a r..ult of tho fOClI
t) Op.rating .aid motor vohiclo in .uch an unlawful
mannoI' a. to como in contact with tho Doooa.od,
u) Violatin9 tho .tatut.. of tho cOlUlonw.alth' of
Penn.ylvania and tho regulation. of tho County of cumborlandl and
v) Such othor unlawful aot. or omi..ion. .. .ay be
r.vealod during tho di.covory and trial of thi. ca...
24. Plaintiff inoorporat.. by rofor.nc. horeto a. fully ..t
forth, in oach and .v.ry followin9 Count of thi. Co.plaint, all
parallraph. preo.din9 that Count. Likowi.. in .ach and .very Count
h.reinafter and .ll av.rment. of thi. Complaint, the date, tho
ti.e and plao. ref.rr.d to are that of tho accident in .uit,
hereinafter d.lcrib.d, unle.. oth.rwi.. .tatod.
'Ia., CAU'. 0' ActIO.
nOla,UL Don
Jerry Napp, Adaini.trator of tho ..tato of
John Irno.t Mapp, Decoa..d, v.. ~ri.tin Lee Nel.on
25. The aU09ationl .. .ot forth above in paraqraph. 1
throu9h 24, .ra inoorporat.d by r.f.ronc. a. fully thou9h tho ....
.et forth at l.n9th.
26. plaintiff bring. thil wron9ful doath .ction (..oking
d...lIo. horein a. .llow.d by tho 1.wI of tho COlUlonwo.lth of
-1-
P.nn.ylvania) on b.half ot the lurvivon ot the Deced.nt under and
by virtue of 12 P.S. SecUon 1601 et. eeq., .ub.equ.ntly re-
enacted by 42 C.S.A. Seotion 8301 Pa. R.C.P. 2201 at. eeq..
27, Plaintiff'. O.cedent did not bring any acUon durin'if hi.
lifetim. tor the injurie. .u.tained by him, nor ha. any oth.r
action tor hi. death been commenoed again.t the Oetendant herein.
28. The .urviving members are one (1) .on, John Erne.t Mapp,
Jr., born on November 10, 1983 and two (2) dau'ifht.r., Jenniter
Ili.abeth Mapp, born on December 12, 1994 and Cara aachael Mapp
born October 3, 1990 and the parent. ot John Ern..t Mapp, who ar.
all p.reon. entitled by law to recover damag.. tor .uch wrongtul
death ot John Erne.t Mapp, Deoealed.
29. By r.a.on ot the Decedent'. death, hi. .urvivor. have
.uttered pecuniary 10sle. in addition to the co.t. of Deoedent'.
la.t illne.., medical expen..., fun.ral expen... and other related
.lep.n....
30. Th. Oec.d.nt during hi. lit.till. contribut.d to the
Unanclal .upport and w.ll being ot hia children and wh.n po.eibl.
the Dec.d.nt Ilad. 9lftl and contributionl which w.r. anticipat.d
to continu. into the tuture.
31. A. a re.ult of Oec.dent'. death, hi. .urvivor. have b..n
d.priv.d ot the earning. and/or earning capacity, .ervic..,
-8-
lupport, comfort, guidlnc. .nd the .njoym.nt of D.c.d.nt'. lif..
.....ro.., Plaintiff, Jerry M.pp, ~dmini.tl'ltor of the I.t.h
of John Irn..t Mapp, D.c....d, dl..lnd. jUd9JI.nt again.t the
D.f.ndant, ~ri.ten Lee Nel.on, in .n a.ount in .xc... of rifty
Thou.and Dollan plu. lawful inten.t, oOlta and punitive damag...
I.COMO CAUl. or ACTIO.
luaVIVAL Am'IO,,"--
J.rry Mapp, Adminiltrator of the I.t.t. of
John Erneat Happ, D.cealed va. Kriltin Le. N.l.on
32. Th. .11egationa 81 I.t forth above in paugl'lph. 1
through 31, are inoorporat.d by refereno. la fully though the ....
..t forth at length.
33. Plaintiff, Jerry Happ, Adminiatrator of the latat. of
John Irne.t Mapp, Deolal.d, allo brinql thi. actior. on beh.lf of
the D.ced.nt'. latat. under and by virtu. of 20 P.. C.S.A. S.otion
3371 at. .aq., and 42 Pa. C.S.A. Seotion 8302.
34. By re8l0n of the Deoldent'. d.ath, hi. ..t.t. h..
.Uff.r.d p.cuni.ry 101..., including Ind in addition to the oo.t.
of D.c.dent'. lalt illn..., mldical .xpen.e., fun.r.l exp.n... .nd
oth.r r.lat.d .xp.n..I.
35. A. I r..ult of the injuri.1 to and lub..qu.nt d.ath to
John Irn..t Mapp, hi. ..tate hi' b.en d.prived of th. .00no.10
value of the D.c.d.nt'. life during the p.r1od of h1. Ixp.otanoy.
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36. A. a dir.ct Ind proxi.lta ra.ult of tha afor..lid aot.
of neqliv.nc., Olced.nt euffered and D.flndant i. li,blo for the
fQllowinq da.'VI.1
I) Olc.dent'. pain Ind .uff.rinq betw..n tha ti.. of
hi. injuri.. and tha ti.e of d.ath,
b) Olcedent'. total ..ti.ated future .arninq powar
le.1 hi. ..ti.at.d co.t of p.rlonal .aint.nanoe,
c) Oeo.d.nt'. 10.. of r.tirl.ent and Sooial Seourity
inoo.e,
d) Olo.d.nt'. oth.r Unanoial 10.... .uffered a. I
r..ult of hi.dlath, and
e) O.oed.nt'. 10.. of .njoymlnt of lif..
37) A. a relult of the injuri.. and the .ub..quent
d.ath of John Irn..t Mapp, hi. I.tat. ha. b..n dapriv.d of the
economic value of the O.oed.nt'. life durinv the period ot hi.
life .xpactancy.
38. Plaintiff, J.rry Mapp, Adaini.trator of tha I.tate
ot John Irn..t Mapp, O.o.a..d, claim. of the Defendant har.1n
additional dama9" for the conloiou. pain and ,uffer1nv und.rvonl
by Plaintiff for the p.ychio valua of thl Ixp.ctancy and enjoymant
of life which wa. terainatld by the n'9119Inol, rackl...na.. and
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JeRRY MAPp/ Admini.trator
of the Iltate of JOHN
eRNEST MAPP, Deoea.ed,
Plaintiff
IN THB 'OURT OF COMMON PLeAS OF
CUMBBRLAIID COUNTY I PENNSYLVANIA
v.
CIVIL ACTION ~ LAW
NO. 95~0628 CIVIL TERM
KRISTIN LEE NBLSON
ORDER OF
AND NOW, this :aott.day of May,
COURT
1995, upon oonlideration of the
Motion of Plaintiff, Jerry Mapp, Adminiltrator of the Bltate of
Jonn Brnelt Mapp, D.oeal.d To Comp.l the Depo,itj.on of Defendant,
Kriltin Le. Nelson, and of Defendant'l ~emorandum of Law In
Oppositior to Plaintiff'. Motion To Compel D'polition of Defendant,
and fOllowing a telephone oonferenoe with Plaintiff's oounl.l,
Gabriel B. Frank, Jr., Elq., and Defendant'l oounlel, C. William
Shilling, Esq., Plaintiff's Motion is GRANTED and Plaintiff is
granted leave to take the oraldepodtion of the Defendant, Kri.tin
Lee Nellon, within fifteen day I of the date of thi. Order.
The time for the filing of Plaintiff', Complaint pursuant to
Defendant'. Praecipe for Iuuanoe of Rule To File Complaint is
extended for a period of twenty daYI fOllowing the depolition.
BY THE COURT,
d
Gabriel B. Frank, Jr., E.q.
130 Welt Lanca.ter Avenue
P.O. Box 507
Wayne, PA 19087
Attorney for Plaintiff
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OUKlllLAIID OOUII'IIV, J....VLVall.
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JI..V NA", A4ai.i.t~.to~ of I
tb. I.t.t. Of JOHM ''''''11 KA",I
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Juav TalAL DIHAID.D
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UD 10., this
, 199!l, upon
day of
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oon.ideration of the Motion of plaintiff to compel the D.po.ition
of thl Defendant, Rristin Lee Nel.on, and the relponle thereto, if
any, it i. hereby oaD.a'D and D'O."D that the Plaintiff ia
qranted leave to take the oral depoaition of the Def.nd.nt,
Rriatin Lee Nel.on, within ten (10) days of thil court'. ord.r.
BY THE COURT I
accident which occurred on June 27, 1993 in the Munioipa1ity or
carlisle Boro in Cumberland county, Pennsylvania. At that time,
the vehiole drive by Derendant, ICristin Lee Nehon, struck and
rata1ly injured John Ernelt Mapp, Deasased, who aocording to the
po1ioe Report was a pedestrian at the time of the aooident.
4. On or about March 3, 1995, Plaintirf'_ oounse1 wrote to
Derendant's oounsel, c. William Schilling, Esquire, or the Law
Firm or Harrington, lCaurfman , Sohi11ing and enololed a Notice or
Deposition for Friday, April 14, 1995 at 10100 o'olook A.M. In
oonjunction with the written oorulpondenoe, oounsel for the
Plaintiff allo inrormed Mr. Sohi11ing the purpose of the
deposition was to aid in t.~e preparation of a oomplaint sinoe the !
only witnels aooording to the Polioe Report, was the Defendant. A
true and oorreot oopy of the Plaintiff's oounse1'1 letter dated
Maroh 30, 1995 and Notioe of Deposition are attaohed herewith and
marked as Exhibit "A". A true and oOl'reot oopy of the Polioe
Report b attaohed hereto and marked.. Exhibit "B".
5. In response to the above oorrelpondenoe and
converlation, Defendant's attorney sent a letter dated Maroh 30, 1
1995, reas.erting his po.ition that he was going to object to the
deposition of the Defendant in antioipation of filing a oomplaint.
A true and oorreot oopy of Mr. Sohilling's oorre.pondenoe dated
-2-
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Tb. pU~po.. of tb. depol1t1on aDd aatte~' to
~. 1Dqu1~ed 1nto D..4 not b. .tat.d 1n tb.
DoUa. ulIle.. tb. aoUon b.. b..D 00...no.4
by wr1t of luaaonl .11' tb. pl.1nt1ff 4eI1~e.
to take tbe ',pol1t1oD of .ny p'~IOD by 0~.1
....b.Uon fo~ tbe pu~pole of pnpadn9 a
ooaplalllt. ID luob 0..1 tb. noUo. Iban
1Do1u4. a bdef .t.t...nt of tb. Datuu of
tb. aauI. of tb. aoUoD aD4 tbe .atteu to be
lnqubed bto.
,I The Defendant'. oounsel, c. William sohillinq, E.quire, is
objecting to the depolition of the Defendant and it hilS been
aqreed to between oounlel that prior to filing a rule to have a
complaint filed, that we would seek a deoision from the Court with
reqard to thil issue.
Rule 4007.1(0) oan not be anymore olear that the Plaintiff il
entitled to take the deposition of not only a party but any person
for the purpole of preparinq a oomp1aint. The application ot thil
RUle olearly comes into play when you conlider the taots
.urroundinq the pre.ent action. The fatal injury eustained by John
Ernest Mapp, Oeoealed, ooourred on a foggy morninq where the only
witnell was the operator of the vehlo1e, the Defendant, ~ristin
Lee Nel.on, who struok and killed Plaintiff's Deosdent. Based on
Mr. Sohillinq'l corre.pondenoe, he i. objeotinq to the depo.ition
on the bads of privilege. Under a plain readinq ot the RUle,
thi. arqument would bs misplaoed. The intent and purpo.e of the
Rule i. .imply to allow the Plaintitf to qo torward and
-3-
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9811000
~I~~Y MAPP, Adminiltrator I IN THE COURT OF COMMON PLIAS
the I.tate of JOHN ERNIST I OF CUMBBR~D COUNTY, PINNSYLVANIA
MAPP; Decealed, I
plaintiff I
I
V. I Cl:VIL ACTION - LAW
I
~RISTIN LII NILSON, I
Defendant I NO. 95-628 CIVIL TIRM
I. all D....DAHT'. '..LINIK"! OIJICTIOK.
TO 'LAIKTI.r', COK'LAJ.T
..'0" IH..Lt. 'a3.. 10'.... J.. ~D OLIR. J.
- t II
AND NOW, this ~ day of JUNB, 1996, after oilreful
ORDER
conlideration, Defendant'l preliminary objeotion in t.he nature of
a demurrer and motion to Itrike il DINIED. Defendant'l
preliminary objeotion in the nature of a reque.t for a more
.pecifio pleading i. GRANTED. Plaintiff il direoted to amend
paragraph 23(u) and (v) within 20 daYI of thil order 10 that they
allege the ultimate faotl upon whioh thele allegationl are baled.
By the Court,
;/, "/ / . J(..-
Harold B. Sheely, P.J.
aabriel B. Prank, Jr., Ilquire
for the Plaintiff
C. William Shilling, Elquire
For the Defendant
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JIRRY MAPP, Adminiltrator
the Bltate of JOHN BRNBST
MAPP, Decea.ed,
Plaintiff
V.
I IN THB COURT OF COMMON PLIAS
I Of CUMBBRLAND COUNTY, PBNNSYLVANIA
I
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I
I CIVIL ACTION - LAW
I
I
I NO. 95-628 CIVIL TBRM
KRISTIN LBI NILSON,
Defendant
IW"I DI'.WDAMT'. '''LIKIWARt OIJICTIO,'
TO 'LAIWTI"'. COM'LAIWT
.1'0" .HI.~Y. '.J.. BO.'... J.. AID OLI.. 3.
O'I.IOW AMD OIDI. 0' COU.T
Thi. matter arile. out of 4n automobile acoident which
occurred on or about June 27, 1993 on Interltate 81. aefore thi.
Court are Defendant'l Preliminary Objeotionl to Plaintiff'l
Complaint. We heard argument on thil matter on May 29, 1996.
fACTS
Plaintiff Jerry Mapp, Adminiltrator of the Bltate of John
Irnelt Mapp, initiated thil action by filing a Praeoipe for Writ
of Summon I on February 6, 1995. Prior to filing a oomplaint,
Plaintiff depoled Defendant ~ri.tin Lee Nel.on on June 23, 1995.
On February 23, 1996, Plaintiff filsd a complaint which .etl
forth the following facti.
On or about June 27, 1993, at approximately 4140 A.M.,
Defendant Nel.on wal operating a 1985 Mazda piokup truck in a
.outherly direction, on Interltate 81 in cumberland County.
(Pl." Complaint at para. 4). John Brne.t Mapp had pulled over
hil tractor trailer on the medial Itrip of Interltate 81 at or
near exit 14. ~ at para. 6. After exiting the truck, Mapp
"
NO. 9!l-0628 CIVIL TBRH
walk.d northbound b.hind hil truok tow.rdl the exit r.mp th.t h.
h.d jUlt p.ll.d. ~ Pl.intiff .v.r. that at the time of the
accid.nt, Deoadent wal walking/lt.nding on the medial Itrip
and/pr .hould.r of Int.rltat. 81 end W.I not on the tr.v.ll.d
portion of the highway a. alleged by the Def.nd.nt. ~ at para.
7.
Plaintiff furth.r albg'l th.t Defendant was "returning home
with hil girlfriend aft.r tr.velling out of .t.te to vilit
friend. where he m.y h.ve ingelted oontrolled lub.tanoel. Thil
it ltill under inveltig.Uon." 1IL..t para. 3. Plaintiff .vert
th.t at the time of the aooident, the Def.ndant W.I fatigued,
inattentive and may have fallen all.ep while operating hil
vehiole. ~ at para. 11. At or about the time of impaot, the
Defendant drove hil vehicle onto the .houlder and/or medial Itrip
where D.oedent wa. walking/ltanding .nd Itruok D.cedent with the
left front of hil vehiole. (Pl.'1 complaint at para. 12). Thi.
impact cauI.d Deoedent'. body to b. thrown onto the tr.velled
portion of the highway where he wa. Itrllok a .eoond and pOldbly
a third time by other vehiclel al h. lay helplell on the highway.
1dL at para. 15, 21. In addition to thele faotl, Plaintiff letl
forth a caule of aotion of negligeno. out of whioh are derived a
wrongful de.th and lurvival aotion.
DISCUSSION
Defendant Nellon hal file~ pr.liminary Objectionl to
Plaintiff'. Complaint in the nature of . demurr.r to paragraph. g
2
NO. 95-0628 CIVIL TERM
and 23(a) and a motion to .trike paragraph. 23(u) and (v,. In
the alternative Defendant reque.tl that Plaintiff .ubmit a more
Ipeoifia pleading al to paragraph I 23(u) and (v).
Defendant'. DemQrrer to Par.or_Dh. 9 .pd 23t.'
Defendant argue I that Plaintiff'l allegation that Defendant
may have ingelted controlled lubltanoel Ihould not remain in
Plaintiff'l Complaint becauls it il prejudioial and itl prejudice
outweigh. any probative value that luoh allegationl may oontain.
Conlequently, Defendant requelt. that thil Court grant
Defendant'l Preliminary Objeotion in the naturs of a demurrer and
.trike paragraphl 9 and 23(a) from Plaintiff'. Complaint.
Initially, we note that Defendant'l requelt for relief il
prooedurally defeotive. The remedy for granting a demurrer il
typioally the dilmillal of the oale of aotion. In any oa.e, when
oonlidering preliminary objeationl in the nature of a demurrer,
"the Court mUlt aocept al true all well-pleaded material facti in
the oomplaint ae well a. all realonable inferenoe. that may be
drawn frqm thole faotl." O'Brien v. Townlhip of Ralpho, 166
Pa.Commow. 337, 340, 646 A.2d 663, 665 (1994). Conclu.ionlof
law and unjuetified inferenoel are not admitted by the pleading.
Green.~an v. U.S. Automobile Aeeoc., 324 Pa.Buper. 315, 318, 471
A.2d 856,858 (1984). The role of the trial oourt i. "to
determine whether or not the faotl pleaded are legally .ufficient
to permit the aotion to oontinue." Cooley v. Illaet Norriton
Townmhig, 78 Pa.Commow, 11, 13 n.3, 466 A.2d 765, 767 n.3 (1983).
3
NO. 95.0628 CIVIt TBRM
Aaaordi~9 to the Pennlylv.ni. Sup.rior Court, . prelimin.ry
obj.ction in the n.ture of . d.murr.r Ihould only b. gr.nted in
C.I.I th.t .re fr.. from doubt. Britt v. Ch.ltnut Hill Colleq.,
429 P..Sup.r. 263, 271, 632 A.2d 557, 560 (1993).
D.f.nd.nt'l h.v. oOrr.ctly .11.rt.d th.t P.nnlylv.ni.
Court. h.v. plao.d . ~..vy burd.n on . p.rty who attempt I to
.dmit .vid.nce of intoxioation. Our Courtl have oonli.tently
held that the mere faot of drinking intoxioating liquor il not
admil.ible, b.ing unfairly prejudioial, unlell it realonably
.Itablilhel a degree of intoxioation which prove I unfitnell to
drive. Viqnoli v. Standard Motor Freight, Inc., 418 P.. 214, 210
A.2d 271 (1965), ~illo~ v. Farmerl Trult Com~any, 438 P.. 514,
266 A.2d 92 (1970), Hawthorne v. Dravo CorD., 352 Pa.Super. 359,
508 A.2d 298 (1986).
In the pre lent oal., Defendant allegel that thil line of
c.... on the .dmillibility of evidence of intoxioation
neoe.litat.1 the Itriking of the following p.ragraphll
9. Defendant'l conduot on the other hand wa.
not re.lon.bl.. Defend.nt wal returning home
with hil girlfriend after travelling out of
It.te to vilit friendl where he may have
inge.ted controlled lubltancel. Thil is
Itill under inveltigation . , .
23. The accident in queltion relulted from
the carelelln.I., n.gligence, r.ckl.llnell,
groll neglig.nce, wanton and willful
milconduct of Defendant N.llon, which
inclUded, but h not limited to, the
following I
(al Operating a motor vehicle
wh le under the influence of
controll.d .ubltancel which
4
NO. 9~-062B CIVIL TBRM
rendered Defendant unfit/unlafe to
operate hil vehiole . . .
This Court leel no comp1lrilon between the above Oal811 which
relate to the admi..ibility of evidenoe of intoxioation and the
pr:elent oue where Plaintlff merely make. an allegation in the
complaint that Defendant may have been under the influenoe of
oontrolled eub.tanoel. None of the oases on evidenoe of
intoxioation advooate the remedy of Itriking a paragraph of the
complaint. After more faotl of the present oale are developed,
and it beoomel olear that admitting thi. evidenoe would be
prejudioial, Defendant oan eleot to file a motion in limine to
exolude this evidenoe. We are of the opinion that dilmieling
thele provilione of the oomplaint would be a premature and
unjultified cour.e of action in light of the line. of oales on
the admillibility of evidenoe of intoxioation. Defendant' I
demurrer il denied.
Motion to Strike Paraaraphl 231U~ and Ivl
Defendant allege. that Plaintiff'l allegationl in paragraph
23(u) and (v) fail to conform to the pleading requirement I of
Pennlylvania Rule of Civil Prooedure 1019(a) beoaule the
allegationl etate nothing more than legal oonolulionl without
reciting any facti upon whioh thele oonclueionl are baled.
Defendant requeltl thil Court to Itrike theee paragraph I from
Plaintiff'l Complaint. In the alternative, Defendant requelt. a
more Ipeeifio pleading.
Under Pennlylvania law, "The material facti on whioh a cau.e
~
NO. 95-0628 CIVIL TERM
of aotion or defenle il baled Ihall be Itated in a oonoile and
IUlNl\ary form." Pa.R.c.p.1019(a). Beqaule Pennlylvania il a
faot-pleading .tate, "A oomplaint mu.t not only give the
defendant notioe of what the plaintiff's olaim is and the 9roundl
upon whioh it reltl, but it mUlt allo formulate the illuel by
IUJ1IDIarizing thole faots e..ential to support the olaim." Alpha
Tau Omeqa Fraternity v. UQiverlity of.Pennlylvania, 318 Pa.Super.
293, 298, 464 A.2d 1349, 1352 (1983).
In Connor v. Alleaheny ~e~. ~, 501 Pa, 306, 461 A.2d 600
(1983), the Pennsylvania Supreme Court held that a propoled
amendment to a oomplaint ariling out of alleqed negligenoe in the
treatment of a hOlpital patient wal not barred by the Itatute of
limitationl. ~ The Court held that the amendment did not leek
to add new allegationl of negligent aotl by prooeeding on a
different theory but amplified one of the allegationl of the
original oomplaint and limply Ipeoified other waYI in whioh the
hOlpital wal negligent. ~ Moreover, in a oruoial footnote,
the Court offered the following warningl "If [defendant) did not
know how it 'otherwile fail[ed) to ule due oare and oaution under
the oiroumltanoel,' it could have filed a preliminary objeotion
in the nature of a requelt for a more Ipeoifio pleading or it
oould have Dloved to Itrike that portion of appellant/I
oomplaint." 501 Pa, 306, 311 n.3, 461 A.2d 600, 602 n.3 (1983).
ThuI, a defendant bearl the re.ponlibility of inquiring into
general allegationl of a plaintiff'l complaint by filing
6
NO. 95-0628 CIVIL TERM
preliminary objeotionl.
In the pr~lent oa.e, Defendant prelinlinary object. to the
following paragraph. of Plaintiff'l Complaintl
23. The aooldent in qus.tion relulted from
the aarele'lne.., negligenoe, reokleslnell,
groll negligenoe, wanton and willful
miloonduot of Defendant Nelson, whioh
inoluded, but i. not limitsd to, the
following I
u) Violating the Itatutel of the
Commonwealth of Penn.ylvania and
the regulationl of the County of
CUmberland, and
v) Suoh other unlawful acte or
omillione al may be rsvealed during
the diloovery and trial of thil
oaee.
We agree with Defendant'l oontention that theee allegationl Itate
legal conclu.ionl without reoiting any faotl upon whioh the
oonolulionl are baled. Thele oonolulionl oould allow Plaintiff
to prooeed to trial under other theories of negligenoe to whioh
the Defendant had no notioe. Beoau.e thele provieionl are not
fatally defective, Plaintiff i. direoted to amend thele
provilionl 10 that they allege the ultimate faots upon whioh
thele allegationl are baled. Defendant'. preliminary objection
in the nature of a requelt for a more Ipeoifio pleading il
granted.
?
median, parked it and then exited his vehicle such that he was standinr in the
southbound passinr lane facinr /IOrth.
The PlaintUTtlled his Complaint on or about March I, 1996. In the
Complaint, Plaintift' alleres, inUlx W, that Defendant's llonduct was not
reasonable, tbat he was returning home with his girlfriend after havinr traveled
out of state to visit friends where he may have ingested controlled substances. He
further contends that the accident resulted from the carelessness, neallrence,
recklessness, 11'0ss neiliience, wanton and willfulness conduct of the Defendant in
that he violated the statutes oCthe Commonwealth of Pennsylvania and the
regulatioDII of the County of Cumberland and such other lawful acta or admissions
as may be revealed durinr discovery trial of this case.
Based upon the aforementioned objectionable portions of Plaintlft's
Complllint, Defendant has flled the instant Preliminary Objections.
II. QllFlSTJONe PRESEN'l'ED:
A. Should Defendant's Prelbnlnary ObJection. to the Complall)t qf
the Plaintiff In the nature of a demurrer pur.uant to nule 1028(a)(") b.
.ranted?
SU'lellted Answerl Yes.
B. Should Defendant'lI Preliminary ObJectlollsln the nature of a
motion to Itrlke pursuant to Rule 1028(a)(") be ,ranted?
SU.lelted Answerl Yes.
III. ARGUMENT:
A. Defondant'. Preliminary ObJection. In the nature of a
demurrer .hould be ,ranted,
The Pennsylvania Courts have placed a heavy burden upon the party
otrerinr proof of Intoxication to establish a "dellTee of Intoxication" provinr
"unfitness." See Billow v. Farmers Trust Co., 266 A.2d 92 438 Pa. IH3 (1970);
J)irnoll v. Standnl'4 Motor Freliht Co.. Inc" 210 A,2d 271,418 Pa. 214 (196~);
fInwthorne v. Drl)wbo Corp., Keyst9Jl.U>.lY., 1108 A.2d 298,3112 Pa. Super. 3119
(1986). This Rule has usually been strictly applied.
In Vlrnoll), supra, the Supreme Court precluded any reference to
alcohol use by a truck driver who "one" admitted havinr consumed two beers, "two.
had alcohol on his breath, and "three" was directly observed by two witnesses to
havinr been actlnlr "funny" at the scene of the accident. Similarly, in "ilJow, supra,
the Supreme Court, per Justice Roberts, upheld the exclusion of evidence o( alcohol
use despite a medical test establishing a blood alcohol content of .14% and an
expert's opinion that the alcohol had effected the alcohol user's driving
performance. Hearinr to the standards as discussed above, the Court stated that
the expert'. opinion fell short of showing "a degree of Intoxication which proves
unfitness to drive."
While the current case does not deal with alcohol, It does deal with
substance abuse on the part of the Defendant. Inasmuch as alcohol is recognized as
a drug, the reference to any drug without establishing unfitness on the part of the
Defendant must be precluded from Plaintlll's case.
Plaintiff attempts to rely upon a portion of Defendant's deposition
which was taken in aid oCpreparation of a complaint. While Plaintitl' attempts to
point out to the court the question and answers from line. 9 throulib 14 of pale 71
of Defendallt's deposition, Plaintl.fl'fails to point out the question and answers of
lines 18 throulh 20 where the Defendant lIays no.
There is absolutely no evidence in this matter that the Defendant used
any type of controlled substances and, even if he did, there is absolutely nothinr in
the record which would establish that the use of such substances deemed the
Defendant unfit for driving.
The reason for the frequent exclusion of the evidence of alcohol use
loes to the heart of the issue ofrelevance. Frequently, tbe use of alcohol does not,
in itself, cast any light upon the specific events resulting in injury. Althoulh
alcohol use heilihtens suspicion about how and why an injury happened thereby
creating doubt upon the actor's ability to exercise prudence, the real question in a
case is how the alcohol user actually behaved. It is, for instance, possible that even
a truly intoxicated person may be stl'uck by a carfwhile innocently standinl at a
street corner. Yet one could hardly deny that the evidence of alcobol consumption
would raise prejudicial suspicions about the victim.
The Supreme Court's Rule is desilP\ed to force fact finders to focus
upon what actually happened in a particular case, rather than make assumptions
about intoxication. The Court recognizes, nevel'theless, that at a certain point, the
point at which "unfitness" to conduct ones ~elfi8 fairly shown, alcohol Use doea
become a relevant factor whose probativity outweighs and is there prejudice.
In tbe instant case, the Plaintiff cannot enter any evidence tbat tbere
was any controlled substance In the DeCendant's body at the time tbe occident
occurred. The accident waslnvesthrated by a Pennsylvania State trooper and be
law no need to warrant teltinll of the DeCendant for lubstance abule, There wal a
blood alcobol test done as routlno which proved negative.
To allow tbe reference to substance abuse to remain In Plaintitl'1
Complaint Is prejudicial and Its prejudice outweiibs ony probative value tbat luch
allegations may contain. The allegations contained In Plalntitl's Complaint are
inflammatory, prejudicial and cannot be shown to be relevant In any way shape or
Corm to the question at hand.
B. Dofendant's Preliminary Objections and tbe Motion to StrIke
Ibould be ,ranted,
Pennsylvania Rule of Civil Procedure 1019(a) requires that a plaintiff
state in the complaint, in a concise and summary form, the material facts upon
which a cause of action is based. The purpose of tbis Rulli is to require tbe pleader
to disclose in the complaint the specific acts upon which the plaintiff's couse of
action Is based so that the plaintill'a prooC may be confined to 8uch actions, thus
enablinl tbe defendant to reu80nably prepare Its defense.
Pennsylvania Rule of Civil Procedure 1019(a) requires that a Plalntift'state in the
Complaint, in a concise and summary form, the material facts IJpon which a cause of action i.
baaed. The purpose of this Rule Is to require the pleading to disclose in the complaint the speclllc
acts upon which the Plalntlfl'a cause OfBclion Is based, so that the plaintllra proofntay be
conllned to such actlona, thus enabling the defendant to reasonable prepare its defense, Baker v.
RanioB, 229 Pa, Super, 333,324 A.2d 498 (1974); PennDOT v. Shipley HlJmble 011 Co., 29 Pa.
Commonwealth. 171,370 A,2d 438 (1977); Miller v. Perrlac(l), 71 D&C 2,d 476 (CP
Northumberland Cty. 197~); Stafford v. Old Herltalle Ins. Co., 70 D&C 2,d ~44 (CP Fulton Cty.
1975). Boller plate averments of negligence are in the nature of a mere notice pleading which
Pennsylvania has clearly rejected In adopting the requirement of "fact pleading" in Rule 1019. See
Baker v. Ranvo., Sl/JlLI" and Stafford v. Old HeritOie Ins, Co., SlIm. As was held in c"IIiOi' v.
Farmers and MerchBnts...Irust Co" 8 D&C 3.d 764, 768 (CP franklin Cty. 1978), "It is not
enough to plead a legal conclusion without pleading the ultimate facts undermining them," It has
been repeatedly held that the defendant is entitled to be advised as to specUlc act. constituting the
alleged negligence,
In the instant case, Plalntill's allegations in Paragraphs 23(u) and (v) of his
Complaint fall to cQnform to the pleading requirement a of Pennsylvania Rules of Civil Procedure
number 1019(a) because the allegations state nothing more than legal conclusions without recltlnll
any facts upon which these conclusions are based, More importantly, such naked conclusions of
law are so vague in general that the Plalntitf could proceed to trial under virtually any conceivable
theory of negligence. In fact, as wrlllen, the aforesaid allegations could easily be appl,ed to any
ncgllllence case, Such allegations clearly lack the specll1clty required under Pennsylvania Rule of
Civil Procedure 1019(a),
The Supreme Court of Pennsylvania in ~r v, Alleiheoy General Hospital. 501
Pa. 306,461 A,2d 600 (1983), has all ached great slgnil1cance to the use of such nebulous boiler
plate language and the provision of pleadings. footnote 3 of the Clmn.-:r decision places the
burden on the defendant to preliminary object to such catch-all language in order to properly
prevent I PlalntilT ft'Om Introducing new theories of negligence and new causes ofaction beyond
the atatute of limitations which were not otherwise pleaded with requisite specillcity originally.
The Conner decision has been cited as precedence by a number of Pennsylvania
Common PieRI Courts in support of their decision to strike boiler plate allegations, See Jjake v.
Ashton, 69 Lancaster Legal Reporter 39~ (1985); Starr v. Myers. et ai" 109 Dauph. Co, Reports
147 (1988). While these cases are medical malpractice cues, the simple fact is that they relate to
allegation. of negligence as to the allegations In the instant case, Certainly the same Jaw applies
regl1rdless of the specilic setting for the alleged negligent act. In facl, In ~l1rmon v. Shorts of the
Court of Common Pleas ofVork County, Civil Action number 86-SU-041l26-01, the Honorable
Joseph E. Erb, President judge, in an automobile accident case, held that an allegl1tlon that the
defendant "otherwise tailed to use due care under the circumstances" was conlrary to the holding
in Conner. Jlljl[I" and was properly stricken.
Since Paragraphs 23(u) and (v) represent nothing more than boiler plate
conclusionary allegations of negligence would severely and improperly prejudice Mr. Nelson, It Is
requested that these allegationa be stricken from the Plalntill's Complaint. In the alternative, It is
requested that the Court require Plalntift'to tlle a more specillc Complaint setting forth the
specitlc facti upon which he seeks to hold Mr. Nelson liable negligence and directing all general
catch-all averments of negligence be excluded,
IV. CONCLUSION:
For III of the foregoing reasona, the Defendant, Krlaten Lee Nelson, .ubmlt. that hi.
Preliminary Objections In the nature of a demurrer and Preliminary Objections In the nature of.
motion to strike should be granted,
,\
Respectfully submitted,
ILLINO
uire
0.: 4G90~
endant Kristin I,ee Nelson
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eppruwimately 500 feet north of the south bound entrance ramp for E)(1t 14. Aft.r
" O)(16tlnQ tho lrur.k he walked north bound behind hi6 truck towards the ramp that he
had 1\I$t passed At or about the same time, Delendant Neleon WllS operllllng his
v.hlc!lt In A southerly direction on Intorlltatll 81 wtlen hl6 vehicle atruck IInd killed
John I'most Mapp. At the timo of the impact, the weather wall foggy Further, the
Defendant wss returning home with his girlfriend alter traveling oul of alate 10 vlelt
friend~
In antlclpa\lon of filing a Complaint in thiS metter, Ihe depaellion of the
DefendAnt. Krla\in Lee Nolson. was taken on or about June :23, 1995. During that
depm\'tlon, Mr. Nelson was asked the following questions:
Q, Qid you use any controlled lIubstances within 24 houre of thet
accident before that accident?
A, I don't know. Maybe,
Q, Maybe?
A Veith,
Plaintiff InclUded these facts In the Complslntthst we, flied on Mitch 1, , &96,
O.fendant now seeks by Prallmirlary Objecllons, to preclude the.e f.et. ., well ..
other IIIverments Plaintiffs Complaint,
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A demurrer admits every well.pleaded m.terllll filet
set fol1h In the pleadings to which It Is addressed
e8 WtlIIIII el/lnferences re.sonably deducible
therefrom. but not conclvlSlons 01 law. In
oreler to sustain the demurrer, It Is eSlSentlal
tMt the plaintiff's complaint Indicate on Its
fect that his claim cannot be sustained, end the
law will not permit recovery, "there Is any doubt,
this should be resolved in favor of overruling the demurrer.
~obdell end the cases cited thQroln. set forth whet Is well e8tlilblished 11iIw In
Pennsylvania regarding the purpose of a demurrer IlII to test the sufficiency of tho
plaintiff's complaint. The Preliminary Objections flied by the Oefendent, ere not
contending thel the Plalnllff or the causes of action raised therein ere In any WlY
Ins\jffIGlont. The Defendant simply finds the quesllon and answor by the Defendant
concerning whether he may have Ingested controlled substances prior to the liIocldent
'1 oblecllonable end prejudicial. The Defendant In his Brief II being premlture to
allemptlo preclude these facts in the pleading stage, The iuue il not whether the.e
feetl will or will not ulllmately rlslIto the level of admissible evidence,
ThiS IS the funcllon Of discovery The Issue Is whether thele fact., If proven, will
support Bnd advance tho causo of acllon either on the lieue of 1l1i1blllly or demlge. for
the PIIMllff.
The Oefendentalso contendl that there is no found.lIon for these 'Iets, On
-4.
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1M conlrsry. IIttached to Plalntlfrs Rllllpon.e Will the page contll"ing the qu..t1on
Ind IlMWer with rflgsrd to tho use 01 controlled lIubstencel Ind tlstlfled under olllh
by the l10lendenl hlmllell, Thern can be no better foundation for these faets then the
lIworn IQlltlmC'rlY of the Defendant.
8, The Defondont, K,'lstln Lee Nelson, is requesting Ihll Honor.ble Court 10
Itrlke pllrogrllphs 23 (II) And ('I) claiming thllt Ihole allegations lick fac:tual speeifielty
rllqullt1l1 under PlI RC,P 1010(8). Ills well established Ihat motion I to strike are
spllrlnr,lly grllnted 1I1nce plelldlngs liIrll gl'lnerelly not viewed al ends In and of
Ih.mR~II'I1II LYD&IU.._Wsll1Jrul.9r., 163 PI, Super, 405, 407 (1964), Indeed, courts
IIlwBY~ .crutlnlze pl..dlng. with 'Ionlenl eye I' where only their form In .ttached.
A.YLw1l. x-WoJt.l/J.QJL, lWllil, Thll Is pllrtlcularly so In a eltu.tlon where I.ck Of
speclllclty IJbmll wrtlch the dofendor\t compl.lns concerns matters within \he
de"lrlrlent'lI knowledgo. lJOlLLex, L. ~ M. ComDenv.lnc. v. el, P",~. COI'I)., 04S1 PI.
A,2d OM (1973); IJDlLV,.Moroan, 70 D & C 2d 717 (1974), UkeWlle, the Court tooj(e
"sklnl:" lit a defendant's claim of lack of specificity with r.gard to information Itlat
m.y bfl readily obtained by tha defendant through lhe discovery proQts.. SI:Il
P.JJJllllyly.,nlll Qenb v. Seiser 90 & C 3dlli19791,
Thlt general hllit applied In filling on preliminary objections ,1I'01ng I.ck of .
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speclflclly Is well established:
'The general rule that tiufflcient facts must ()e pleBdecI to enable a
defendcmt to prepare 8 defense is the touchstone to whether the plead/fig /s
adequBte ..
p'Antol7/l II, Hamoton Grind/no Wheel Comoany. 225 Pa, Super, 120, 125 (1973).
Indeed, the only question which the Court musl determine Is whether plalnlltre
complatrlt accurately informs the defendant of the basis on which recovery la sought
so thai he may know upon what grounds to make his de'ense. Local No, 163
InlernallSlnal Union II, Watkins. 417 Pa, 120 (1965); Bethlehem Steel..Y..- L1l1ar:)
Industrl.'!ll, 71 0 & C 2d 635 (1974); ~Y.lfLy, Harrlsbura PQlllcllOl11 HosDltel, !8 0 & C
2d 125 (1972)
~IIen " the Court Ilnds thetthe Plaintiffs Complaint doe. not plead sufnclent
material fects, Is v"gue. or Is insufficiently specific, th8 remedy lIought by the
Cefendllnt here IS not the proper remedy, The Courtll heve recognized thet where
preliminary objections allege that a complaint has failed to 1I11ege sufficient 'eets, or
where HIe allegations are Insufficiently specific. the proper remedy III an order for
moro specific plelldlng, Huoet II FQodsel!l.L!.lli:.. 3 D & C 3d 136 (1977); Linn v.
MQm.irI 1llillLI. Thus, If any remedy IS proper here. that remedy III a more epeclflc
.e.
I Gabriel B. Frank, Jr, Esquire, attorney for the Plelnllff, HI!RI!8Y CERTIFIES
thel 8 true end corrllcl copy of tho forllgoing PLAINTIFF'S BRIEF IN OPPOSITION
TO DEFENDANT'S PRELIMINARY OBJECTIONS. was served upon the ~Iow listed
Individual. postage prepaid, U,S,. Clau Mail, this f. Y day of Mey. 1996,
eddressfld as follows:
~
C, Wllhem Shilling, eequlre
HARRINGTON, KAUFFMAN & SHILLING
100 Pine Street
Sulle 300
Harrieburg, PA 17101
By}.j -L (
~RiEL 8, FRANK, JR., ESQUIRE
10. No, ~t5el
t ~o W.st Llnctalllr Alllnul
J),O, 80M 507
Wayno, PA 180117
(&10) 1l8~.lllOO
Allum,y 'ur ..Iilnllll
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GAIRIIL I. 'RANK, JR.
ATTORNIV ATlAW
130 wlsr LANCAsnR AIIINUE
POsr O,f1ct ~O)( e01
WAVNI. PINNBVLliANlA 19087
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3. Plaintiff's Deced'nt 18 John IIrn.~t N.pp, D.c....d, who
is the ,on of Plaintiff, Jerry N.pp.
4. On or ab~ut June 27, 1993, at approximately 4140 A.M.,
Defendant Nelson wu operating . 19815 Mazda piokup truok in a
south.rly direotion, on Interstate B1 in the county of cumberland,
Pennsylvania.
15.
The allegations
set forth in paragraph 6
on informati~n and beli.f
through 22
and r.main
infra, are baled in part
under investiqation.
6. On or about Jun. 27, 1993, Plaintiff's Deo.dent, John
Ernest Mapp, Decealed, had pulled over his traotor trailer on the
medial Itrip of lnterltate 81 at or near exit 14. After exitinq
the truck, he walked northbound behind his truok towardl the .xit
ramp that h. had just pals.d,pre.umably to vi.w the .xit ramp.
7. Plaintiff believ.. and therefor. .v.rs that at the time
of the accid.nt, Decedent wa. wa1kinq/.tandinq on the medial strip
and/or should.r of Interstate 81 and wu not on the trav.lled
i portion of the hiqhway a. alleged by the Defendant.
,I 8. At aU tillle. rel.vant herein, Dec.d.nt' s o~nduct w..
II reasonable and neoe..ary qiven the circumstances and conditions
then .xiltinq.
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9. Defendant'l conduct on the other hand ",.a not
reaaonable. Pefendant "'88 returnin9 home with hia 9irlfriend
atter travellin9 out ot Itate to via it friendl where he may have
ingeated oontrollld lub.tanoe.. Thia i. atill under
inve.ti9ation.
10. Acoording to the polioe Report, the tatal impact with
Plaintitf'a Deoedent ooourred jUlt north ot exit 14 at Mile Po at
46.5 in Carliale Bcrou9h. Thil ia ati1l under inveatigation.
11. plaintiff beUev.. and there tore avera that at the time
ot the acoident, the Defendant wa. tati9ued, inattentive and may
have tallen a.leep while operatin9 hi. vehicle.
12. plaintiff believe. and there tore aver. that at or about
the time ot im.,act, the Defendant drove hi. vehicle onto the
ahoulder and/or medial Itrip where Deoedent wa. walking/.tanding
and atruck Deoedent with the left tront ot hi. vehicle.
13. plaintiff believe. and therefore avera that at or about
the time ot impact, Detendant turned hi. vehicle .harply to the
right in an ettort to '.let back onto the travelled portion ot the
highway. Ho",ever, Defendant ",a. unable to avoid .trikinq the
Decedent.
14. At the tim. ot impact, Detendant wal travellinq too faat
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for condition. making it impo..ibll for Ololdlnt to avoid bling
.truck.
1~. plaintiff believe. and thlreforl aver. that the impact
oau.ed Decedent'. body to be thrown onto the travelled portion of
the highway.
16. At all time. relevant herein, Defendant wa. operating
hi. motor vehiole in a carele.., reokle.. and unrea.onable manner.
17. At all time. relevant herein, the Defendant wa.
operating hi. motor vehicle in exoe.. of the legally po.ted 'pled
limit and/or in exce.. of a .peed whioh wa. rea.onable and .afe
for the condition. exJ..ting.
18. Defendant aver. that at or about the time of impact hi.
vi.ibility wa. ob.truoted by fog. 1hi. i. .till undlr
invlltigation.
19. While the Olcedent WIl8 lying on the highway in a
helpll.. condition, Defendant faUed to take appropriate emugency
mea.urel to prevlnt furthlr harm to the Oecldlnt.
20. bon., other thin.,l, Olfendant Ihould have poaitionlcl hil
vehicll on the roadway 10 al to protect thl Olcedent and warn
other motori.tl of the pre.lnce of an injured Plde.trian on thl
highway. Hil failure to do 10 wa. nlgli.,lnt.
21. AI a re.u1t of Defendant'l failure to take .uch aotion
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in a timely manner, Decedent wa. .truck a .econd and po..ibly a
tbird time by otber vehicle. a. he lay helple.. on the hi9hwey.
A. a re.ult, Decedent i. believed to have .uttered 9reat pain and
.ufferin9 betore hi. death.
22. Acaordin91y to the Police Report, Defendant'. vehicle
came to n.t lDon than 4eo teet atter point ot impaot on the ri9ht
.houlder ot Inter.tate 81.
23. The accident in Clue.tion re.u1ted from the carele..ne..,
neqliqenoe, reokle..ne.., qro.. neqliqenoe, wanton and willful
mi.oonduct ot Defendant Nel.on, which inclUded, but i. not limited
to, the followinql
a) Operatinq a motor vehiole while under the influence
of controlled lub.tance. which rendered Defendant untit/un..te to
operate hi. vehiCle. Call Paraqraph 9 .upra),
b) Operating hi. motor vehicle in exce.. of the
leqally po.ted .peed,
c) operatinq hi. motor vehicle at a unaafe .peed,
d) Operatinq hi. vehiole in a manner not con.i.tent
with road and weather condition. prevailinq at the afore.aid time
and place,
e) 'ailin9 to drive at a .peed and in a manner that
would allow him to .top within the a..ured olear di.tanoe ahead,
I
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f) rallin9 a.llap whill 4rivin9'
9) .lin9 inattlntivl,
h) railing to .11 and obllrva thl
i) Driving and oplrating hb
.houldlr/barm/mldial .trip ot Intlr.tatl 81,
j) railura to IXlroi... dUI
cireum.tane..,
k) railurl to takl raa.onabla and n.e..aary .tap. to
protlct thl Olc.a.ld on tha highway attlr .triking Oaeadlnt.
1) railing to havI hi. motor vahiel. undar propar and
adaquat. control,
m) F4iling to kalp a propar lookout,
n) railing to apply hb braka. or failing to apply
braka. in a tim.ly mann.r,
0) striking thl Olela.ld,
p) railure to .ound hi. horn or to providl a warninq
of any kind to thl Olel..ld,
q) railinq to yilld thl right of the way to a
pada.trian,
r) Driving in fog at a ,plld that w..
un.afl/unrl..onabll,
Dacadlnt,
vahiell on
tha
cara undar
tha
'-115-
.) railing to reduce hb Ipeed a. a re.ult of the f09,
t) Operating .aid motor vehicle in luch an unlawful
manner a. to come in contact with the DecMaled,
u) Violating the .tatute. of the Commonwealth of
Pennlylvania and the re9ulation. of the County of Cumberland, and
v) Suoh other unlawful act. or omi..ion. .1 may be
revealed during the dilcovery and trial of thil ca.e.
24. Plaintiff incorporate. by reference hereto al fully let
forth, in each and every following count of thi. complaint, all
paragraphl prlclding that Count. Likewi.e in each and every Count
herlinafter and all averment. of thi. Complaint, thl date, the
time and placl referred to are that of the accident in IUit,
hereinafter dl.cribld, unle.. oth.rwi.e .tatld.
rx.., C1V.. or lCTXOI
nO.G'UL DBT.
Jerry Mapp, Admini.trator of the m.tate of
John Ernl.t Napp, DecI.lld, VI. Kri.tin Le. Nellon
26. Thl .UIgation. .1 ..t torth above in paragr.ph. 1
through 24, arl incorporatld by referlnce .. fully though the ....
.et forth at llnqth.
26. Plaintiff brinql thi. wrongful dlath action (.e.king
damaql. herlin a. allowed by the law. of the commonwealth of
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Penn'Ylvania) on behalf of the .urv1vor. of tha pecedent under and
by virtue of 12 P.S. Section 1601 It. ..q., .ub.equently re-
Inacted by 42 C.S.A. Section 8301 Pa. R.C.P. 2201 .t. ..a..
27. Plaintitf'. Dec.dlnt did not bring any action durin9 hi.
lifetime for thl injuria. .u.tainld by him, nor h.. any other
action for hi. dlath bean commenced again.t th. Oef.ndant her.in.
28. Th. .urviving m.mber. are on. (1) .on, John Brna.t Mapp,
Jr., born on Nov.mber 10, 1983 and two (2) daughter., J.nnifer
Elizab.th Mapp, born on Dlelmb.r 12, 1994 and Cara Racha.l Mapp
born October 3, 1990 and thl par.nt. of John Ern..t Mapp, who arl
all p.r.on. entitled by law to recovlr damag.. for .uch wrongful
death of John Ern..t Mapp, Oec.a..d.
29. By r.a.on of the O.c.d.nt'. death, hi. .urvivor. have
.uff.red plcuniary 10.... in addition to the co.t. of D.cedant'.
la.t iUn..., madical axpan'I', funeral axpan.a. and othar r.latad
I .xp.n.a..
Ii 30. Th. Oacadent during hb lifatima contribut.d to thl
financial .upport and wall beinq of hi. childr.n and whan po..ibla
IIII
the Decadent mad. gift. and contribution. which Were anticipated
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I' to continua into thl future.
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il 31. A. a re.ult of D.cedent'. death, hi. .urvivore hava been
I deprived ot tha earning. and/or aarning capacity, .arvic..,
1
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.upport, comfort, guidanc' and the .njoym.nt of D.c.dlnt'. lif..
n...roa., Plaintitf, J.rry Mapp, Adminbtrator of the ..tat.
of John Ern..t MIlPp, D.CI...d, dlmand. judgm.nt aqain.t the
O.f.ndant, Kriatan Lie N.llon, in an amount in .xc... ot rifty
Thou.and Dollar. plu, lawful int.re.t, eo.t. and punitive dama9'"
I.COID C1VI. or lOTIO.
luavnUo a.CTIOM
J.rry Mapp, Admini.trator ot the E.tate of
John Ern..t Mapp, D.cIIlI.d v.. Krbtin L.. NIl.on
32. Th. alligation. a. ..t forth above in paragraph. 1
through 31, an ineorporat.d by ref.rlnc. a. fully though the .am.
..t forth at l.ngth.
33. Plaintift, J.rry Mapp, Admini.trator of the E.tat. of
John Ern..t Mapp, Dle.a..d, al.o bring. thi. action on b.half of
the O.o.d.nt'. E.tatl und.r and by virtu. of 20 Pa. C.s.A. Section
3371 .t. ..a., and 42 Pa. C.B.A. section 8302.
34. By re..on ot the Olc.d.nt'. daath, hb ..tate ha.
.uttered par.luniary 10...., includinCJ and in addition to tha co.t.
of Decad.nt'. la.t iUn..., m.dieal axp.n..., funeral axpan... and
oth.r r.lat.d .xp.n.I..
36. A. a r..ult ot the injuri.. to and ,ub.aquant d.ath to
John Ern..t Mapp, hi. ..tat. ha. b..n daprivad of tha .conomic
i value of tha O.eadlnt'. life durinCJ thl plriod of hi. Ixpactaney.
,
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36. A. a dir.ct and proximate r..ult of the afore.aid act.
of n.glig.nce, D.c.dlnt .utfer.d and D.fandant i. liable for the
fOllowing damag."
a) D.eed.nt'. pain and .utf.ring batw.en the time of
hi. injuri.. and the time of d.ath,
b) Dec.d.nt'. total ..timat.d tuture .arning powar
la.. hi. ..timatftd eo.t of plr.onal maint.nane.,
c) D.e.d.nt'. 10.. of r.tirem.nt and Social security
incom.,
d) Dee.d.nt'. oth.r financial 10.... .uffar.d a. a
ra.ult of hi. d.ath, and
.) C.c.d.nt'. 10.. of .njoym.nt of lira.
37) A. a ra.ult ot the injuri.. and the ,ub.equ.nt
daath of John Ern..t Mapp, hi. E.tat. ha. b..n dapriv.d of the
.eonomic value ot tha Oac.dent'. life during the p.riod of hi.
I lif. axp.etaney.
38. Plaintirt, J.rry Mapp, Admini.trator of the I.tate
I of John Ern..t Mapp, C.c.a..d, claim. of the Oafendant herein
i additional damaga. for the con.eiou. pain and ,uff.ring undergone
,
by Plaintift for the p.ychic valua of the .xpactancy and enjoymant
of life which wa. t.rminated by the naglig.ne., reckla..ne.. and
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LAW OFFICES OF
HARRINGTON, KAUFFMAN" SHILLING
ATTORNEYI C. Wllllam Shlll~nl
SUPREME COURT I.D. NO.1 4699G
8111 NORTH FRONT STREET
HARRISBURG, PA 17110
(717) 18..7207
ATTORNEY FORI
Defondant Krl.tln Lee
Nel.on
.
.
JERRY MAPP, ,t\dmjl'j.trator of: IN THE COURT OF COMMON PLEAS OF
the Eltate of JOHN ERNEST CUMBERLAND COUNTY. PENNSYLVANIA
MAPP. Deceased,
Plaintift'
vs.
KRISTIN LEE NELSON.
Defendant
DOCKET NO. 90.628 CML TERM
D~f'E~DANT'S MfJMORANDUM OF LAW IN OPPJWTIOl'1 TO
P~INTIFF'S MOTION TO COMPEL llEPOijlTJON QF DEFENDANT
I. COUNTER STATEMENT OF THE FACTS
Thie ca.e arises out of a motor vehicle accident which occurred on or about
June 27, 1993 at 4:40 a.m. The accident occurred on Interstate 81 in the Borouwh of
Carlisle, Cumberland County, Pennsylvania.
Tbe deceaaed Plaintift' had been the operator of a tractor trailer unit which
wu travelinwsouth on State Route 81. He had pulled his truck into the median,
parked it and then apparently exited the vehicle and was standinw in the
lOuthbound lane of State Route 81 facinl oncominl tramc. The motor vehicle belnl
driven by the Defendant was travelinlsouth in the left lane of State Route 81 and
.truck the deceased Plaint1ft'. In the Defendant's car WBS Nina Marie Bell. She Will
weep at the time of the accident and did not observe the accident. Christopher
OLeon wa. a helper in the deceased PlainWT. truck and he also was asleep at the
tim. of the accident and did not observe it.
On February 2, 199/1 counael for the Plaintitl' flIed a Praecipe to a Writ of
Summon. .sainet the Defendant. Tbe Summone wae ieeued on February 6, 199/1
and served on the Defendant on March 1. 199/1. The Defendant left for Florida on
or about March 2. 199/1 to eocure employment in the State of Florida. There wae
correepondence between PlaintUl's counsel and Defendant counsel in resardinr thit
cue and the requeet of defenee counsel that Plaintiff file a Complaint in thil
matter. On March 30. 199/1, Plaintitl's counsel forwarded a Notice of Deposition to
defense couneel indicatins that Plaintiff wished to tnkll the depoeition of the
Defendant in this matter. On the eame day, defense counsel wrote to Plaintiff.
counlel and indicated that the Plaintiff should either tUe his Complaint within ten
day. or the Defendallt would be required to tUe a Praecipe for the Issuance of a
Rule to FUe Complaint on the Plaintiff. />,. true and correct copy of the
correepondence to Plaintiffs counsel ie marked a8 Exhibit A. attached hereto and
made a part hereof.
On or about April 18, 199IJ. the Defendant tlled the Praecipe for the Issuance
of a Rule to FUe a Complaint with tbe Prothonotary for Cumberland County. The
Rule WIl8 entered on April 2/1. 199/1 and a true and correct copy of the Rule wall
forwarded to Plaintiffs counsel. A true and correct r.opy of the Rule i. marked Il8
Exhibit B, attached hereto and made a part bereof.
II. QUESTION PRESENTED
Whethe.. the Plaintift', Jeny Mapp. Adminiat..ato.. of the Eatate ot John
Emeat Mapp, Deeealed. may take the deposition of the Defendant prior to ftllnl a
Complaint wben the Notice of Deposition is defeetive and a Rule to FUe a
Complaint haa been isaued?
SUGGESTED ANSWER: No.
m. ARGUMENT
In AnderaQn v. PennDOT. 47 D&C 3d 429 (1987), tbia Court con.idered the
very iuue which is in queation here. whether a Plaintift'ia allowed pre-Complaint
diacovery. Tbia Court aaid at 431 that: "Tbere is .ome authority to lupport tbe
allowance otpre-complaint diacoVllry in certain limited and controlled aituationl.
See Goodricb AmRam 2d Section 4001(c):3." Several ca8ea 8uIgested that pre-
complaint diacovery may be permitted upon carefully con8tructed limitationa and
ahowin, that without diacovery a Complaint could not be drafted. See PU8tiloih
1W11a, "5 D&C 2d 799 (1968); Martin v. HodJoCak.i. 53 D&C 2d 144 (1971); Crown
Marketin, Equitlment Comtlany v. Provic1ent.National Bank. 3 D&C 3d 364 (1977).
In Aw!erIQn. aupra.. tbis Court indicated that the Plaintift' knew where and
how the accident happened and that if thereCore the DeCendant was negligent the
PlainWl' could plead the material Cacta in support oC a cause oC action.. required by
P.. R.C.P. 1019(a).
In the present case. the Plaintiff knows where and how the accidllnt
happened and haa already expre88ed to deCense coun8ela theory oC negligence that
b. contel1da cauled the death of the deceased Plaintift'. Tbe Plaintift' can ther.Core
ple.d the factual avermenta necellsary to .upport a cau.e of action upon hiI belief
that the Pefendant wa. nesUient or careless and thus caused tbe delltb of the
deceU8d Plalnlitl'. Further. under Pa. R.C.P. 4007. 1 (c) the PlaintUl'lt required to
.tate in b.ia Depoaition Notice a brief statement of the nature of the cause of the
action and the matter. to required into. In the present ca8e. Plaintifl'. coun8el ha.
failed to fulilll the requirement of the Rule and did not 8tate the nature of the cause
of action of the matters to inquired into in hill Deposition Notice.
In Wable v. Watkins. 47 D&C 3d 48~ (1986). the Court found that the reason
for the requirelllent as let forth in Pa. R.C.P. 4007 . 1 (c) is that a person who has not
been served with a Complaint may not be aware of the exact basis of the action or of
what It to be adjudicated and thus may be totally unprepared to submit to oral
examination. Fairnes8 dictates that a party be apprised of the nature of the action
lOusht to be werted. The Rule requires that the reque8tins party have a cause of
action prior to the pre-complaint deposition. Such pre-complaint depositions cannot
be used for the purposes of determinins whether or not R cause of action existe.
The Deposition Notice served on defenae counsel indicates that the
Dsf.ndant 11 directed to brinl with him any and all correspondence, recorda. notel,
l1'aph., charta and other documentll relevant to this law suit thouSh it does not
.tate what the law suit It about. The depoaition that Plaintiff is lookin, for It
nothinr more than a tlshinl trip to determine whether or not a cauae of action
actually exiate.
Also. in order for the PlaintifJ'to obtain a pre-complaint depoaition for the
purpose of preparins a Complaint. the Plaintiff mUst show that a Complaint could
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JOIIPK NIIHITH, elk/a JOE
HI8NITH, n.,
'ldnUU
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IN THI COURT or COKKON 'LIAS or
CMGERLIUfD COUHTY, Plllflfnl.VAIIIA
CIVIL ACTI~ - LAW
No..9I'1(.. Of CN f
,
J11Jllf TRIAl. DalAND.D
va.
DALI "IJ:lUl,
NOTre..
You hav. ~.en .uad in couri:.
If you wi.h to elefen. a,.in.~
p.'.', you IIUlt tak. .at~on
the 01.t.aa .It forth in tJ\. followin,
'. , '.
vU:hin twenty caO) day. aft.r tIli. Complaint end lroUoe ar~
.' 'I, .,. ." . I ,_
aarvael, by entedn, a' Written app.ax-ance p.nonaUy OlL' by
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attorney and fiu,,'1 in VriUn, wlth the collri: your ..fan.a' 01'
objection. to the ola1m. ..t',~orth a,ain.t yo~. You .re warnad
that if you f.il to do eo; ~. oe.e ..y proaae. without you and
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jUdp.nt ..y b. entercd .,ain~t: you by the ClOUri: without. ' fllJ:t:haZ'
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notiae for any .oney olal.ael in the c~IIPlaint or'fol:' any other
alaill or reU.t r&q\l..t:G4' by t.he p~.1nt1ff. You lIay l;'~ lIIonay
. ,.,.',: :. " " ',' ,. . " ',\ l" ",' t~: i,.:,:.~, '''/. ,. .' ,. : 'j . I
or property or other ri,ht. important to you.
"
YOU ' lHOULl) TAJal'l'HII,' PAPD TO YOUJl IAWYlR A-p ONC.. Ir ,YOO
DO NOT HAVJI A LAWYU OR CAH'lfOT Al'roltD ONB, GO TO OR TIt.lPHOIfI .'1'IUI
OrrlCI, SI'l' 'ORTH BJlfAW TO .rIND CUT WHBlIlZ YOU CAlf GaT Ull3AL RILP.
CUmberland County court AdIIlni.trat:or
CUlllberlancS county Courthol.l.. ,
1 Courthou.e 'quaZ'a
cerUlle, PA 17012 ,
(717) 240-'200 or "7-0371, ~,
~E COpY FROM RIooN)"
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1. 'PlaintUf1. ,Joo.pblle..hb, .1Io,knovn..,Joe ..a.a1tb',
,J.~, aia, .d\l1t: .bdJ,vidllal..eal.in9 at 4"" ,.b:VZ'ound Avenllll,
cuU.l., CWlbelrl~cI'county. Jannaylv'nla.' '0 ~~\;:.; , '
ij) Def.".ant: 1. Del. Ipidle" an adlllt, lndJ.vldllal wt\o..1a.t
known......... 1":J1I,lI'oRll c:olllllJa It..eat, CIU:'U'l., ClDlberlland
COIlnt:?, Pann'Ylvania. J)afanlllUlt' bt:l~avad to b. a Ipati.nt ' ln
tIl. CIlIIMlrland COIant:y W...ln9 110... ' \3) ; " :, ,'., "
,J'i ,Trlaf.at. anll oClOlln:ena.. b....In.rt.J:' ..alatad, took pla..
on 01' aIlOllt o7lUI. 10, 1I,IJ at Ipp..ox1aa~e1y .IiI' P.~ ~on 'outb
A) (. J ~II..,
. We.t ItZ'e.t in, CaJ:'U.le, Cl.lllberland, COIan~y." ~ n e?lvenia,
.Pp..o.I"~al, '0 f.e~ north or the Int.r.eatloh,or .Olltll W.at: and
W..~,"i.b Itr..t..
4. Atth.~ t~. and pl.c. Pl.lntiff v.. la,allY parkad ln a
aO\lthbollnll,db.ot,ion vhl" Defendant. drove hI. .outhl:!OUlld vebicl.
into tile 1'1." ddVI"'.,d.. .r.. ot Plaintiff'. vablela. i)LI\.L(
5. Tba' coll1.ion 4..o"~.d abov., and tbe da~a9.. and
Iniuri.. aall.. tha...by, v.. due entirely to tbe, n.,li,.ne. and
car.le..ne.. of' th. Defendant whiab includ.dl ~
.) ., oparatin; I'll. vabiel. It,. sp"." "blcb "..
a.ae..ive und.r tba airc~.t.nca. th.n and tha..a .Xi.tln"
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!Cl~I',yllbiah. Il,on the ~oadllaV',
'd)" ,1.1,Un9 to dd~e, .a, .paad lIbiob ,vollld allow'1I1II , to
.top ,vit.bintJa. ..'\&a'a4cl.&&" dbtu!'a aha.d,,,:,: ';, . ,,'
.).' ,'dUnllto' .PP)1 b1. vall101.,. SIInke. in tille to
.nul1 hi. t.. .voi.~e ClO).1111110n.. ,,"',
'. , "f)"" U,l"'l,. in,., a.rol... ....~.c:JIl...;IIaM.I',
II), 'aiUl\9, tl:>> in.uro t:.b.t:. b. va. In . propel': " phy.i..l
.ond.l,tl~ to ddy.,~. vui~1a.' : " '.' , ,,~ ;',
, ," b) 'dUn9 to avoid b1t.tJ.nlJ ,ldntiff', vllbiole wIl...
the ,De'andan~ ..,,0Z' ..bOllldb.y.....n tbat.laintU"a vllb1al.
v.., l..allypal'JlId on th. road In hll ",iall of th. De'.nclant',....
" i) ".I.Ul"9 ~o .h" v1tbj,n~., p~o..... t...fflo lan.. ,."
e. At al:'.~lt of the iOol11liondalc:rUled aIlov., Pl.1nt"t
.lIft.~..., oev.... and, painful, lnjuri.., wbieb lnolll4at
.) 'c.nic:al .hdn/.p~dn, ", ''Y ~LJ\.-L/
b) 1.'t: .bould.r, J:otator CIl" Iyndro.",
0), luabar .tl'.in/.p~.ln,
d) hemiated luab.J: dhe: at ul/n,
.) d.,.....lon,
t) ..va... ahocle to hi. n.rv.. and nervou. .".t,., and
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9) othazo ..ve~a, painf\ll~ an4d1aa~li,n9 lnj'ud..,
.oae 01' all of "hioh a... ohl'onio or p.raan.nt~
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fOl'a,oin, ~~o.pldnt: &l'e tll'Ua' anel aO"l'oat to the b..t of aJ'
Jul0.,1...... intonation, ael b.Uet. J: acJulovl.clv. tbat anJ'
tal.. atata.ant. bo..e1n .... lIllde '''jaat to ~. panalt1.. o~ 11
Pa.c... ..at1on 4104 ...lat1n, to unaworn fel.1.1aat10n to
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IN 'I'ml COUR'l' 0&' COMMON I'Ul/\S 0&' CIJMA&:RI.,/\N/J COUN'rY / Pb:NNSYl,v/\N1/\
JOS&:PH N&lI3M I '1'11/ ,tlkl,t ,JO~:,
N&:IJMI1'II, JR.,
Civi 1 /\ction - (,a"l
I.'lalnt1ff
vs.
No. 3146 of 1995
O/\Ul SI.'10l.&l,
Defendant
'7URY 'rIH/\l. Db:M/\NOEO
~01'1cm '1'0 PU:/\O
TOr JOSblP/I NF.SMITII
cia JENN U'ER C. llT!ln'CIIM/\N, blSQ.
MCGR/\W, IIAI1' & OblI'I'CHM/\N
4 I,IBElR'rY AVENUE
C/\RLISLE, 1'/\ 17013
You ara hereby notified to file a written rosponse to the enclosed
New Matter within twenty (20) days from set'vice hBreof or a judgment may
be entered against you.
GIUFE'I'I'H, S'I'RICKI,m, LF.I,M/\tI,
SOI.VMOS & CALKINS
'WI
_._a~__m ~.__
ANN MARGI\R[,:'l' GM~
Supreme Court 1.0. *55986
110 S. Northern Way
York, P/\ 17402
/\ttorn<lV for Dale Spidle
Telephone No. I (717) 757-7602
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JOSEPH NESMITH, a/k/a JOE,
NESMITH, JR.,
IN THill COURT or COMMON I?U:AS Oli' CUMBERLAND COUN'fY, PENNSYLVANIA
Civil Action - Law
Plaintiff
vs.
No. 3146 of 1995
DALE SPIDLE,
Def(lndant
JURY 'fRIAI, DEMANDED
ANBWIl~ AND lW1. MATTIlR
,AND NOW, comes the Defendant by and through his attorneys, Griffith,
Strickler, Lerman, So1ymos & Calkins, Robert A. Lerman and Ann Margaret
Grab, Esquire and files this Answer and New Matter in response to
Plaintiff's Complaint, and states as followsl
1. Denied. After reasonable investigation, Defendant is wit~out
knowledge or information sufficient to form a bolief as to the truth or
veraci ty of the allegations contained in paragraph 1 of Plaintiff's
Complaint and same are denied and strict proof thereof d~manded.
2. Admitted.
3. Admitted,in part and denied in part. It is admitted that the
facts and occurrence a hereinafter related took place on or about June 10,
1993 at approximately 6125 p.m. on Southwest Street in Carlisle,
Pennsylvania, Cumberland County. The remaining aJ.legations of paragraph
3 are denied in that answering Defendant is without knowledge or
information sufficient to form a belief as to the truth or veracity of
the allegations contained in paragraph 3 or Plaintiff's Complaint.
4.
Denied.
It is specifically denied that at that time and
place, Plaintiff wall legally parked in a Southbound direction when
Defendant drovQ his Southbound vehicle into the rear driver's side area
of Plaintiff's vehicle. On 'tho contrary, it is averred that at all times
rell.lvant hereto, answering Defendant/ actl!lu l'Jarefully, lawfully, and
prudently.
5.
Denied.
It 1's apocifically denied that the COllision
described above and the damages and injuries caused thereby was dUe
entirely to thll negligence ,1lld carele"sness of the Defendant which
included:
A. operating his vehicle at a speed which wao excessive
under,the circumstances then and there existing,
8. failing to have his veh.l.clo under proper and adequate
control I
C. failing to keep a lookout for the presence of other
Vehicles upon the roadwaYI
D. failing to drive a speed whIch would allow him to stop
I
within the assured clear dIstance aheadl
E. falling to apply his vehicle's brakes in time to enable
him to avoid the collisionl
~. dr.iving in a car.eleso and reckless mannerl
G. f.ailing to insure that he was in a proper physical
condition to drive the vehiclel
H. falling to avoid hitt.l.ng Plaintiff's vehicle when the
Defendant saw or shOUld have seon that PlaIntiff's vehicle was legally
parked on the road in full view of the Defendantl and
I. failing to stay wIthin the proper traffIc lane.
6. I\s a reoutt of the collision described I.\bove, plaintiff
suffered severe and painf.ul injuries which include:
1\. oerviclll str,lin/,spr,linl
8. 10ft shOUlder rotator cuff syndromel
~
tho
, p
C. lumbar strainlBprainl
P. herniated lumbar disk at L5/S11
~. depression I
Ii'. severa shQck to his nerves and nervou~ systeml and
G. other severo, painful and disabling injuries, some or all
of which are chronic or pormanont.
On the contrary, it is averred that at all times relevant hereto,
answering Defendant acted carefully, lawfully, and prudently,
7. Ponied. After reasonable investigation, Pefendant is without
knowledge or information sufficient to form a belief as to the truth or
veracity of the allegations contained in paragraph 7 of Plaintiff's
Complaint and same are denied and strict proof thereof demanded.
8. Denied. After reasonable investigation, nO fondant is without
knowledge or information sufficient to form a belief as to the truth or
veraci ty of the allegations cQntained In paragraph 0 of Plaintiff's
complaint and same are denied and strict proof thereof demanded.
9. DenIed. After re.1sonabl.o invostigatJ.on, Do:ondant is without
knowledge or information sufficient to form a belief as to the truth or
veracity of the allegations contaIned in paragraph 9 of Plaintiff's
Complaint and Bame are denied and strict proof thereof demanded.
10. Ponied. After reasonable investigation, Defendant is without
knowledge or il1forlMtion suffident to form a belief al5 to the truth or
veracity of thl;! allegations contained in paragr.aph 10 of P.laintiff's
Complaint and same are dt3nied and strict proof thert30f demanded.
11. Penied. After reasonable investigation, Pefendant is wit~out
knowledge or information SUfficient to form a beliof as to the truth or.
3
veracl,ty of tho a11e')llt i'Jn11 conta ined in paragraph 11 of Plaintiff's
Complaint and samo lire donied and Iltrict pr.oof thoroof demil,lded.
WHER~;b'ORE, tho Defendant demandll jud'lment in hll1 f,lVOr. ilnd against
the Plaintiff together with interest and COllt~ of Bllit.
/fEW MATTER
12. Paragraphs 1 through 11 of Pof<mdilnt'a }\IHlwar and Now Matter
are incorpor,1tod horoin by roference ila though fully aet t:orth ilt longth.
',13. Plaintiff's ComplaInt fails to stato a callBO of II<:tion ,1gainlJt
Answering Defendant upon which reLief can b,) grilllt','".l.
14. Tho allegations of Plaintiff'a ComplaInt may bo barred by tho
applicable statuto of limitations.
15. Pl,lintl.ff haa not sustainod a SllrioUS injury all def1nod by, Act
1990-6, 75 Pa.C.B.A. Sect. 1702.
16. Plaintiff's claim for non-economJ.c dama~ol3 may be barred
because Plaintiff has elocted a limited tort option as Bot forth in Act
1990-6, 75 Pa.C.B.A. Sect. 1705(b) (3) (d).
17.
Pla intiff,
,1oBeph Nosmtth,
was contributoriLy
and/or
comparatively negligent, which contdbutory ..Ind/or comparativo nogl.igence
was a subatant ia 1 factor in bdn<J inq about hiB illl.oqed inj IJ d/lll and
damagos.
18. Plaintiff's alleged injuriell and d.1milgel1 wero tho rosu!.t of
his own solo noq1i'1onco.
19. J?1.1intiff's il!.ltl<J.,d injurIes ilnd dill\hlg0tl milY hilVO bonn tho
rosu1t of acta or omissions by t.hird pilrtill8 ovnr whom .1nawllr.l.ng
Defend.1nt had no log'lL r.ospnll"ibl.lI.l:y or e.ltll:t:oJ..
WIIP:R&:&'ORL;l, Answorln'1 ll'lfondilllt D.l!." :JpLdl." dllmoltlda .judqmont in hL/J
favor taqethllr with lntorosl: ilnd coot of sul.t.
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Complaint, and accordinsly, aald avermenta are denied, Strict proofthereofia demanded at the
time of trial,
4, Admilled,
5, Tho averment a ofParalVapha 5 conatituto 1\ conclualon of law to which no answer
ia required under tho Ilpplicablo Rule. of Civil Proceduro,
,
6, After reasonable Investigation. Answering Defendant la without sufficient
knowledgll or Information to form a belief as to the truth or accuracy of the avennenta of
Paragraph 6 of the Complaint, and accordingly. said averments are denied, Strict proofthereofia
demllnded It the time of trial.
7, Denied, By way of further answer. Defendant'a New Maller Is Incorporated herein
by reference as If fully set forth at length,
8, Denied, By way of further answer, Defendant's New Maller is incorporated herein
by reference as If fully set forth at length.
9, Admllled In part, Denied In part, It Is admitted only that the Defendant was
retumlnlJ home with hlalJirlfiiend after traveling out of state to visit friends, The remainlna
Ivermenta of Paragraph 9 of the Complaint are specifically denied,
10. The document referred to in Paragraph 10 of the Complaint speaks for Itself and
no anawer is required under the applicable Rules of Civil Procedure,
11, Denied, By way of further answer, Defendant's New Maller Is Incorporllted
herein by reference aa If fully aet forth It length,
12, Denied, By way of further answer. Defendant'a New Maller la incorporated herein
by reference aalf fully set forth atlenglh,
13, Denied, By way of further answer. Defendant's New Maller Is Incorporated herein
by reference as If fully set forth It length,
14, Denied, lJy way of further answer. Defendant's New Maller Is Incorporated herein
by reference as If fully .et fOl1h at length,
15, Denied, AI .tated. .trict proof thereof Is demanded at the time trial.
16, Denied,
17, Denied,
1 g, Denied u stated,
19, Denied,
20, Averments of Paragraph 20 of the Complaint con.titute a conclusion of law to
which no Ilnswer I. required under the applicable Rules of Civil Procedure, Ifan an.wer is
deemed necessary. It Is specifically denied, The averment. of Paragraph 20 are specifically
denied.
2 \. Denied,
22, Thll document referred to In Paragraph 22 of the Complaint speak. for Itself and
no anawer Is required under the applicable Rule. of Civil Procedure,
23. (a-u) Denied, Strict proofthereofis demanded at the time of trial,
24, Averments of Paragraph 24 of the Complaint constitute a conclusion oflaw to
which no answer is required under the applicable Rules of Civil Procedure,
35, After reasonable lnvestlllation, Answerlna Defendant Is withoutsufficlant
knowledae or Information to form I belief as to the truth or accuracy of the avermentl of
Paraaraph 35 of the Complaint, and accordlnllly, said averments are denied, Strict proof thereof
Is demanded It the tima of trial.
36, (a-e) Denied, Further, the avermenu of Paraaraph 36 constitute a conclusion of
law to which no answer is required under the applicable Rules of Civil Procedure,
37, After reasonable Investigation, Answering Defendant Is without sufficient
knowledge or Information to form a belief as to the truth or accuracy of the averments of
Paraaraph 37 of the Complaint, and accordingly, said averments are denied, Strict proof thereof
II demanded at the time of trial,
38, The IlVermentl ofParallraph 38 of the Complaint constitute a conclusion of law to
which no Ilnswer Is required under the applicable Rulel of Civil Procedure,
WHEREFORE, the Defendant, Kristin Lee Nelson, demands judllment in his favor ahd
allalnst the PlaintiO; Jerry Mapp, Administrator of the Estate of John Ernest Mapp, Decea.sed,
with costs,
~EW MATTER
39. The accident complained orin the Complaint of the PlaintlffwBl caused or
contributed to by the negligence, recklessnm and ,cllrelessnesl of John Ernest Mapp, deceased,
which Include, but Is not limited to, the following:
(a> John Ernest Mapp positioned hlmselfln the southbound passing lane of
Interstate 81 facins north with his arms folded in front of him;
(b) John Ernest Mapp, deceased, specil1cally put hlmselfin a position of
dllnier by pOlitionlna himself In tho mlddlo of the passinlllano of southbound I.B I;
(c) lohn Ernest Mapp, deceased, acted In a careless and reckless manner by
posltlonlna himself In the middle of the southbound passing lane of 1-81 when he knew or should
have known that by placing himsell'ln such a position on the roadway, he would be struck by I
motor vehicle,
40, The Plaintiff. John Ernest Mapp, deceased, assumed the risk of his activities and of
Injuries as a result thereof.
4 \, If the Plaintiff sulTered injuries and damages as described and for reasons set forth
In the Complaint, said Injuries and damages were caused or contributed by conditions over which
Answering Defendant had no control and for which he Is not responsible,
42, If the Plaintiff sulTered Injuries and damages described and for reasons set forth In
the Complllint, said Injuries and damages were caused andlor contributed to by the negligence.
cllrelessness and recklessness of other parties over whom Answering Defendant had no control
and for whom he Is not responsible,
43. If the PlalntlffsulTered Injuries and damages as set forth in the Complaint, said
Injuries and damages were not proximately caused by a negligent act or admission on behalf of the
Answering Defendant.
44, If tho Plaintiff sulTered Injuries and damages as set forth in the Complaint, said
Injuries and damages may have been caused by the negligent acts or admissions of other
Individuals or entities which constitute the proximate or superseding cause of said injuries and
damages,
45, The Defendant believe. and therefore Ilver.thatthe PlalntUf, John Erne.t Mapp,
docmed, had inllo.ted larae quantitie. of alcoholic beveraae. prior to the Incident In Plalntlll'.
Complaint.
46, Defendant believe. and, therefore, Iven that the Plaintiff, John Erne.t Mapp,
decoa.ed, had a blood alcohol content of IItleaat 1,0 at the time the accident occurred,
47, The Defendant believe. and, therefore, avera that the Plaintill; John Ernest Mapp,
deceased, was despondent over domestic mailers at the time the incident occurred,
48, The Defendant believes and, therefore. avers that the Plaintilf, John Ernest Mapp,
deceased, willfully placed himself In the middle ofthe passing lane of southbound 1.81 in order to
commit suicide,
49, Defendant reserves the right to challenge any award of delay damages in this Cllae,
50, Defendant demands that appropriate hearings be conducted in thla cllle prior to
Ilny award of delay damagea,
51. Rule 238 of Pennsylvania Rulea of Civil Procedure, on Its face, and as applied, Is
violative of the due process and equal protection clauses of the Fourteenth Amendment to the
ConstiMlon of the United States, Section 1983 of Tille 42 of the United Statea Code and Article
I, Soctions 1.6, II and 26 and AJ1icle V, Section 10(c) of the Pennsylvania Constitution and
oppoaingll chilling efTect on the ellercise by Defendant of hla constitutional rights,
WHEREFORE, the Defendant, Kristin Lee Nelson, demands judgment In his fllvor and
Ilglllnstthe Plaintilf, Jerry Mapp, Administrator of the Estate of John Ernest Mapp, Deceased,
with costs,
Respectfully submlued,
,
,
HARRINOTON, KAUFFMAN & SHILLING
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3. Plaintiff's Decedent is John Ernest Mapp, Deceased, who I
is the son of Plaintiff, Jerry Mapp.
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i southerly direction, on Interstate 81 in the county of Cumberland,
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4.
On or about June 27, 1993, at approximately 4140 A.M"
Defendant Nelson was operating a 1985 Mazda pickup truck in a
Pennsylvania,
5.
The allegations set forth in paragraph 6 through 22
infra, are based in part on information and belief and remain
under investigation,
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Ernest Mapp, Deceased, had pull.ed over his tractor trailer on the
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6,
On or about June 27, 1993, Plaintiff's Decedent, John
medial strip of Interstate 81 at or near exit 14. After exiting
the truck, he walked northbound behind his truck towards the exit
ramp that he had just passed, presumably to view the exit ramp.
7. Plainti ff believes and therefore avers that at the time
of the accident, Decedent was walking/standing on the medial strip
and/or shoulder of Interstate 81 and was not on the traveled
portion of the highway as alleged by the Defendant.
8. At all times relevant herein, Decedent I s conduct Wllll
reasonable and necessary given the circumstances and conditions
then existing,
-2-
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9, Defendant's conduct on the other hand was not,
"
reasonable.
Defendant was returninq home with his qirlfriend
atter traveling out of state to visit friends where he may have
ingested
controlled substances.
This
is
still
,under
investigation,
10. According to the Police Report, the fatal impact with I
Plaintiff's Decedent occurred just north of exit 14 at Mile Post
46.5 in Carlisle Borough. This is still under investigat.ion.
11. Plaintiff believes and therefore avers that at the Ume
of the accident, the Defendant was fatigued, inattentive and may
have fallen asleep while operating his vehicle.
12. Plaintiff believes and therefore avers that at or about
the time of impact, the Defendant drove his vehicle onto the
shoulder and/or medial strip where Decedent was walking/standing
and struck Decedent with the left front of his vehicle,
13. Plaintiff believes and therefore avers that at or about
the time of impact, Defendant turned his vehicle sharply to the
right in an effort to get back onto the traveled portion of the
hiqhway. However, Defendant was unable to avoid strikinq the
Decedent,
14, At the time of impact, Defendant was traveling too fast
for conditions making it impossib le for Decedent to avoid beinq
struck.
-3-
shoulder/perm/medial strip ot Interstate 811
j) Failure to ellercise due care under the all
circumstances I
k) Failure to take reasonable and necessary steps to
protect the Deceased on the highway after striking Decedent.
1) Failing to have his motor vehicle under proper and
adequate controll
m) Failing to keep a proper lookoutl
n) f'ailing to apply his brakes or failing to apply
prakes in a timely manner I
0) Striking the Deceasedl
p) Failure to sound his horn or to provide a warning
of any kind to the Deceased,
q) Failing to yield the right of way to a
pedestrian,
r)
Driving
speed
was
that
in
fog
at
a
unsafe/unreasonable I
s) Failing to reduce his speed as a result of the
fo91
t) Operating said motor vehicle in such an unlawtul
manner as to come in contact with the Deceasedl and
u) Violating the statutes of the Commonwealth of
Pennsylvania including but not limited to, Pennsylvania Vehicle,
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$nacted by 42 C,5,A. Section 8301 Pa, R,C.P. 2201 et. seq"
27. Plaintiff's Decedent did not bring any a,ction during
his lifetime for the injuries sustained by him, nor has any other
action for his death been con~enced against the Defendant herein.
28. The surviving members are one (1) son, John Ernest
Mapp, Jr" born on November 10, 1983 and two (2) daughters,
Jennifer Eli~abeth Mapp, born on December 12, 1994 and Cara I
Rachael Mapp born october J, 1990 and the parents of John Ernest
Mapp, who are all persons entitled by law to recover damages for
such wrongful death of John Ernest Mapp, Deceased.
29, By reason of tho Docedent's death, his survivors have
suffered pecuniary losses in addition to the costs of Decedent's
last illnoss, modical expenses, funeral expenses and other related
II
II expenues.
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Ii 30, The Decedent during his lifetime contributed to the
I financial support and well being of his children and when possible
i the Decedent made gifts and contributions which wer'e anticipated
to continue into the future.
31. As a result of Decedent' II death, his survivors have
, been deprived of the earnings and/or earning capacity, services,
support, comfort, guidance and the enjoyment of Decedent's life,
WHEREFORE, Plaintiff, Jerry Mapp, Administrator of the Estate
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ot John Ernest Mapp, Deceased, demands judgment against the
Defendant, Kristen Lee Nelson, in an amount in excess of ritty
~hou9and Dollars plus lawful interest, costs and punitive damages.
StlCOND CAUSE OF ACTION
SURVIVAL ACTION
Jerry Mapp, Administrator of the Estate of
John Ernest Mapp, Deceased vs. Kristin Lee Nelson
32, ~he allegations as set forth above in paragraphs 1
through 31, are incorporated by reference as fully though the same
set forth at length.
33. Plaintiff, Jerry Mapp, Administrator of the Estate of
I John Ernest Mapp, Deceased, also brings this action on behalf of
the Decedent's Estate under and by virtue of 20 Pa. C,S.A. Section
3371 et. seq" and 42 Pa. C.S.A. Section 8302,
34. By reason of the Decedent's death, his estate has
suffered pecuniary losses, including and in addition to the costs
of Decedent's last illness, medical expenses, funeral expenses and
other related expenses,
35, As a result of the injuries to and subsequent death to
John Ernest Mapp, his estate has been deprived of the economic
value of the Decedent's life during the period of his expectancy.
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I' WHlIQlI'ONl, Plaintiff, .1erry Mapp, Administrator of the ElJtate
I of John Ernest Mapp, Deceased, demandB judqment aqainst the
I Detendant, Kristen Lee Nelson, in an amount in excess of Fifty
Thousand Dollars plus lawful interest, costs and punitive damuqes.
Respectfully submitted,
B~~~Q
. , J .,
Attorney for Plaintiff
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41, D.nled, II i. .p.clflcally denl.d Ihel Mr, M'pp Clu.ed or conlrlblll.d 10 hi.
Injurl.., On Ih. conlrlry, Mr. Mlpp WI' unawer. Ih.1 h. W.. .boullo b. .Iruck
end by en.werlng Def.ndenl which r..ulled In Mr, M.pp'. deelh, By wlY of
further R.ply .ee Complelnt.
42, Denied, See re'pon.elo paregraph 41& 43,
43, Denied, It I. apeclflcally denied thet Mr, Mapp's Injuries were not cau18d by
an.werlng Defendant. On Ihe contrary, Mr, Mapp wa, I8truck by Inlwerlng
Defendant which resulted In Mr, Mapp's death, By way of an.wer Ie.
Plaintiff', Complaint.
44, Denied, Ills specifically denied that other Individuals cauaed the Injuries to
Mr, Mepp, On the contrary, Mr, Mapp was Itruck by anlwerlng Defendlnl
which r..ult.d In Mr, Mapp" d.ath,
45, Denied , It la specifically denied thai Mr, Mlpp Ingelt.d large quanllllea of
alcohol prior to the accldant. See paragraph 46 below,
46, Denied, It II speolflcally denied that Mr, Mapp had a blood alcohol conlenl of
1,0, or that consumption of alcohol, If any, had anything to with his conduct II
the time of tha accident.
47. Denied. It I' specifically d.nled thet Mr. Mepp we, deapond.nl atth. lime of
the eccldent. On the contrary, Mr, Mapp wa, not despond.nt or d.pressed al
he lime of the eccldent.
48, Denied, III' ,peclflcally denied thet Mr, Mepp pieced hlm..lf In the pilling
line to commit .ulcldl, On thl contrlry , Mr, Mlpp did not attempl or Intend
to commit ,ulclde , HI' dllth WIs ceu..d by the negllgenca of the
Defendent.
49, Thi. peregreph ,tlte, e conclu.lon of law to which no re'pon.. is required.
50, Thl. plragreph stlt.. a conclulion of law to which no respon.. II required,
51, Thl. p.rlgr.ph ,tat81 a conclu'ion of law to which no r..pon.. II required,
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3, Thereafter Defendant answered the Plaintiff's Interrogatories speclflcelly
number 4 concerning the Identify and address of a wltne.. Brenna Smith whom the
Defendant had been vlslllng several hours before the accident oClMred, A true and
correct copy of Defendllnt's answers to the Plalnllff's Interrogatories are IIl1l1ched
hereto and marked as Exhibit "A",
4. DIJrlng pre Complaint discovery, the Defendenttestifled thot although he
did not know the addre.. of Brenna Smith, he knew where she lived, A copy of Page
13 of the Depolltion Is allached hereto and marked al Exhibit "B",
5. Plaintiff's are desirous of locating this witness, Although the Defendant
contends that he does not remember the telephone number or address, he certainly
knows where she lives and how to locete this person, Plaintiff's ere desirous of
completing discovery and having this mailer listed for trial.
WHEREFORE, Plaintiff, Jerry Mapp, Administrator of the Estate of John Ernest
Mepp, Deceased, raquest an Order compelling Defendant, Kristin Lee Nelson, to
provide full and complllte answers to Interrogatories within twenty (20) days of thl'
Court', Order or to suff.r sanctions In accordance with Rule 4019 upon IIppllcetlon of
the Court,
.2.
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Involving Plaintiff's Decedent. This witness is extremely Important In order to
establish the Defendant's timetable with regard to when he errlved at her home, where
he was coming from, the amount of sleep thet the Defendant had prior to hi,
departure back to Pennsylvania Including when he left the Washington, D,C, eree
and whether he consumed any drugs or alcohol prior to his departure In add III on to
the state of mind of the Dafendant.
Mr, Nelson has contended in both his deposition, the Interrogatories and the
lellers from his counsel that he does not know the whereabouts of Brenna Smith,
While he may not remember I,he exact address or telephone number, It Is hard or
even difficult to Imagine that a few hours aftar he left the residence of Brenna Smith
and was Involved In a falal accident, thllt he would not remamber such an Important
detail, The Defendant In his deposition, Page 13, line 14, states:
Q, What was her address?
A, Not positive, I Just know where she lives
The Plalnllff slmelv wants to know what Mr, "ielson knows and ,hat Is where
Brenna Smith lives, or how to find t~ls wltne"s, or erovld" Information tt)JUy.1lJ.JD.GlL
lhe Plalnllff to flO.dJhl1 witness Nelson hed no problem the week end before the
accident contacllng Ms Smith, driving to her home end spending the weekend with
-2-
4, pl.... .I.t. Ind provide III nlm.., Iddre.... Ind t.lephon. numb."
of .ny or .lIlndlvldu.', who were pre..nt with Defend.nl N,'.on within 48 prior to the
,ccld.nt.
ANSWER:
Kristin Nelson and Nina Bell visited with Brenna Smith in
Rockville, MD, on the weekend the accident occurred. The exact
address and phone number are not known at this time.
~. Plelle lilt III wltne.... to be called It trill.
ANSWER:
This is not yet been determined. This answ~r Will bo
supplemented as required prior to trial.
8, Plel.. lI.t III exhibit. to be ulld It trial.
ANSWER:
This is not yet detcrmine1: This ~nswer will be
supplemented as required prior to trial.
HARJU
5. II i. .pecifically denied Ihallhe defendanl knowl how 10 locale Ihil perlOn, 'rhe document
. marked u Elthlbit "B" clearly .peakl for i1"If. By way oflhe IUrther an.wer, Ihe defendant hu
an.wered all of tile Plalntlll'1 qUOItions and Inlerrogatories to the best of his abilllY,
Whererore, ./le derend.~t, Krlltln Lee Nelson, requtlt. thl. honor.ble court dl.mls.
'1.lntllY'. motion with co.t..
NEW MA'ITER
6. On April 17, 1997, coun,,1 for defendant and coun,,1 for Plaintiff had . three WlY telephone
conference wilh Nina Bell who is localed in Florida, Nina Qell wal the pallenger wilh the defendant
.t Ihe time the accident occurred.
7. Nina Delllold coun,,1 for Ihe PlainlUfthat she was unable 10 give an address or telephone
number of the people that they had been to "e In Washinglon, D.C, over four years IliO.
I. The motion that h.s been filed by the Plaintiff II arbilrary. capricious and veltaliou. in nature in
that both the defendant and Ihe individual who was riding wilh him have told Plaintill'. coun,,1 they
are unable to &Ive an exact address or lelephone number for the Individual they had been to "' over
four year. aao,
Whererore, the derend.nt, Krl.tln Lee Nel.on, prAY' thl. 1I0nor.ble Court dl.ml..
PI.lntllY'. complaint with cO'II.
RespectlUlly submitted,
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LAW ameli 0'
IWUl,lJ(G1QN, ~~rrMAN " SHD.UNG
ATI'W)"','~ W'" 8bWlDI
SI1lBIMI CODaT LD. NO. 4699S
100 'INISTUIT, SVITI: 300
lIAlUUS~l1JlQ, PA 17101
, (1.')'720-07"' "
ATI'OIlNJ:Y roMI
D.,...d..' KriltlD Lee
NeII,_
JERRY MAPP, Administrator of
tI", r:"lol~ ,,"InllN rr)~Ir:~T
MAI'I', Deceased.
I'lalntlll'
IN TilE COURT OF COMMON PLEAS OF
""Mnr:IH ,\"11 (Y)IINTV PPNNl:YJ VANIA
v,
CIVIL ACTION. LI\W
KRISTIN LEE NELSON.
Defendant
NO, 95-628 CIVil. TERM
I>I':Fr';NI>ANT'S ANSWf:HS TO I'J.AINTJI"F'S
E:Xl'f:RT INn:RIWClATOIUES
I, Stale the lIalllC, Iwnw llIld buslncss addlc",:s "rail pcrsons yuu ,'xpecllll cl1l1 ns
cxpcrt witnesses ntlhe timc ot'trialofthe cnptlolll'd 11I:\lIl'l
ANSwER:
This hIlS not yet becn dctermlned, This InterrogntOlY will be lupplemenled BI required,
,
For nil 1""'''11:' 11;\I1I,'d In IrlteIlJlI','II," \ 'III" ,1,'1'.' the l()lIowin!1
B, thdr llccupntlon; IInd
b. whether or not Ihey speclnllll: IIII\II~ particulnr lield, and if they specialize,
set forth Iheir area or areBS of specialiZlllion,
"
ANSWBR:
Not~.
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O. , ,4Mtpllon oral1 pho~bI, plw. dr.w1niJ, .,.liI~.iM,. · or other
dcx:ument.~,~,~,~ ' .",
f. any location, Iltel or f'adUtlel v1.lted by the expert,
.cNSWER:
Not applicable,
G, S~tliJrth 11 SUllllllal) 1I1'Ihe gl \111mb IIlhe, tI,." , II" :." I.. le'iLlesle\! ill l\."
Intcrnlgnl')Ik, nb,lw for ~a.;ll IIjlillillll 'li'the e~jlLlI. IIIdll<Ii11b bu: 1"lllllllitcJ to thc f;lllll\\illll
II AllY le:;!lIi,! 1I11\lc,inlujloll "llkh (II,. l'~I".:11 \',IIIICS~ will/ely, I'ur Ill')' ~u,h
le"ts, please identitY the flatlle of the text, Ihe author, the cdlllon, Ille year of publicalion,
and the page(s) oflald lext.
tlNS/veR:
Not applicable,
Re;pectnilly ~'lhl)'i\ll,I,
THE LAW OFFICI~S OF
IlARRIN<lTON, KAlIFFMAN & SIIll.l.INCi
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concerning the whereabout. of Brennl or Brendl Smith whom the Oefendlnt 'plnt
.
the weekend prior to the fltll accident.
3. The Plelntiff I. deslroul of locetlng the wherelbout. of thl. wltnl" to
estlblllh IUch mallerl al the Defendant'l time line, the time of deplrture Ind
errlvll, u.. of .Icohol and other drug. Ind other mallerl rellting to the Defendlnt'l
Ictivities jUlt prior to the flt.1 accident.
4. Without being able to contact thil witne.. the Plaintiff will be leverllly
prejudiced in order to prep.rethll miller for trill,
5, PI.inti" hid prevloully filed I Motion to Compel Anlwe" to
Interrogatories to obtain the wtlerelboutl of the above witne..,
e: Plllntiffl Motion to Compel WII helrd before the Honoreble Kevin A.
He.. on Decamber 4, 1997, There.fler, In Order wal entered on December ~,
1997 by Judge He.., A true and correct copy of Illd Order II IlIlched hereto,
7. To dlte the Defendant hSI not complied with the Order by providing 0
,'gned writing with the directlonl to the home of the wltne.., In flct, It il
epproxlmltlly one (1) month lincethe deadline hel expired end to dltl Plelnliff hi'
not be.n provided with Iny documentltlon In compliance with the 8\1lched Order.
8. Plllntl" i. dealroul of completing dillcovery, However, the Defendlnt
.2.
The Informltlon .ought by the Plllntlff I. exlrem.ly Importlntto IItlbll.h the
.
II Def.ndlnt', time line, time of d,plrtur., u.e of drug. Ind llcoho' Ind the .tlte of I
mind of the D.f.ndlnt on the date of the Iccldent.
II. QUESTION PRESENTED
SHOULD SANCTIONS BE IMPOSED AOAlNST
DEFENDANT FOR HIS FAILURE TO COMPLY WITH THE
COURT ORDER DATED DECEMBER I, 11871
8UOOE8TID AN8WIR: YES,
III. DISCUSSION
Penn.ylvanll Rule of Civil Procedure 4019 provldea that the Court mlY on
motion grlnt In Ipproprllte Ilnction. for flilure to comply with an order of the
Court, In the In.tlnt call, Plllntiff filed a Motion to Compel Iglln.tth. Defendlntto
rocete I wltne.. by the name of Brennl or Brendl Smith, The D.fendlnt t..tltled on
It 1.I.t two (2) oCCl.lon. thlt he did not know her t.lephone number or Iddr...
Ilthough he did Indicate thlt he did know where .he lived, Accordingly, the Court
IlIued In Order dlted December 5, 1997 directing the Defendlnt to provide I
I .igned writing with detllled directionl to the rllldence of thl. wltne.., The Order
I
I required the Def.ndlnt to provide the direction. in writing within forty.flve (4~) diY'
of the December~, 1997, To dlte, there ha. been no complllnce nor hi' the
-2-
,
,
Plllntlff received any wrlll.n dlrecllon. to h.lp locet, thl. wlln....
The only wltne.. 10 the fltll Iccldent of John E, MIPP, D.cel..d, 11th.
D.f.ndlnt Nel.on, H. h.. te.tltled on repelted oCCl.lonl thlt upon returning from
,
a week.nd trip where he hid vllited M., Smith In the Wllhlngton D,C. arel, h. WI'
.
traveling on Interltlte 81 in Cumberland County, nelr exit 14 on a dirk foggy
morning when he flrat law Mr, Mlpp .tlndlng in the left hind line of the Interatlt. It
which time he WI' unable to Ivoid Ilrlklng Ind fltllly Injuring Mr. Mlpp. The only
wltn... thlt can provide In Iccount concerning this eccident, II the Defendlnt
him..,f. Pllintlff dOli not eccept the Defendlntl' verllon of the accld.nt Ind
ball.va. that bllld on the phYllcel evidence, nlmely, the dlmlge to the left Ilde of
the Oef.ndlnl'l pick-up truck thlt the decellld may hive be.n on thl left .houlder
of Ihe raid when .truck, Thll Oeflndlnt tlltlfled It hll depo.lllon In a re.pon.. to I
qUllllon whether h. had con.umed Iny controlled .ubltlnca. within the IWenty-four
(204) hours preceding the Iccldent. HI. In.wer WII, "Mayb.", aa'ld on the
clrcum.tance. of thl. accident and hi. "spon.. to the Ibove que.tlon, It btcom..
extrem.ly Imperltive to locate Iny wltn... who may hive had contlct WIth the
Defendant ju.t prior to the Iccident. The tlltimony of M., Smith would b. Important
to help ..tlbll.h the tlm. line of the Oefendlnt, how long the l}.f.ndant WII driving
prior to the Iccldent, whether the D.f.ndlnt came from I dllllnallon oth.r thin hi.
home, Ind certlinly whether Oefendlnt hlld conlumed controlled .ubltlnee. during
~-~_~"':'~"'Ij'\!"tl ~ ;' ';';;~T,.,rlJ','J:,~!)ft.I:I'.f~'-~;.l'i:,ll:,~.';~'I:~~~"::,:1"1 ',', f ','i_~,;
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!ERR Y MAPP, Adminlslrolor
IN THEl COlJRT OF COMMON Pr.FM; OF
LlIlyIUcl{L/\I~I) UIlII~ I ), l't:I~Nil) ), vANIA
~I~ HI\.. l~:'hHI.: lH Jut 11' "'~'\J'. ,I) I
MAPI', Deceosed,
Plointlff
CIVIL ACTION - I.A W
VS,
95-628 CIVIL
KRISTIN LEE NELSON.
Defcndnnl
Jl IRY TRIM, rWMANDFJ>
ltillIl!-J.>1 ,AJN.J') H'S:, MQTIQN.lDQ )11''1 iLJ1JJ;i('D.YJ.iKY
ORnEl!
,
AND NOW. this !i da~ of December, 1997, after nrgullIelllthereoll. rhe wllhin motion
,
Is GRANTED to the elltentthatthe defcndantls directed 10 provide. In 0 signed writing, as precisely as
she con, the directions to the home of the witness In qucslloll. olle Bfdnna or Brenda Smith. within
f1my-l1ve (45) days of this order,
UY TIlE COURT,
aabrlel B. Prank, Jr.. PAqulre
For the Plaintiff
C, WUllam ShUllnll. ElIquir~
Fllr the Defendanl
Af.../lll-
Kevin A, Hess, J,
,
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TaUI COPY 'ROM .rcOlD
:JI-= ~~"':: .....~ IMI'
III ..~..... ".r.~:. ...p.
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tlMMI. .. 'MNK, JIl, IIQUIM
..~ No. ~1"1 '
1.WeIt~... Awnue
P.O. lox "",
Wavn., ""'yIYInIa 11017
(110) ....1100
,.".", for .......
JIRRY MAW, AdmInlltratar of
IIIIItIIII of JOHN ERNI8T MAPP,
Dea...
PIIInIItf
: IN THE COURT OF COMMON PLIAI
: CUM.I!RLAND CO., PIlNNSYLVANIA
: CIVIL ACTION. LAW
.
.
: No. II I. CIVIl T.-m
VI.
KNITlN LU NILtoN,
Def.-Ident
.
.
: JURY TRIAL DEMANDED
BW.I
AND NOW, thl.
dlY of
, 1988, upon Motion, .
Rul. I. luuld upon Defendlnt to .how ClU", If Iny, th.y m.y h.v. why the P"Y*'
or Ihl. MotIon ahould not b. gr.nl8d.
RULE RETURNABLE thl.
d.y of
. 1"_.
BY THE COURT:
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concemlnG th. Wh.....bout. of Brenn. or Brend. Smith whom th. Def.nd.nt .pent
the w..k.nd prfor to th. fet.1 .ccld.nt.
3, Th. PI.lnti" I. dlllrou. of locetlng the wh.re.bout. of thl. wlln... to
..tlibll.h .uch m.tt.ra .. the D.f.nd.nt'. tlm. line, the tlm. of dlparture .nd
IrrlVII, Ut. of .Icohol Ind other drug. and other mattera relating to the D.f.ndlnr.
activitl.. ju.t prfor to the fltal .ccident.
4, Without being eble to contact thll witn... th. Plalnti" will b. ..v.rllly
prejudiced In order to prepI... thl. mltter tor trill.
~, PI,'ntl" h.d pr.vlou.ly filed I Motion to Compel An.w.ra to
Inttn'Ogltorl.. to obt,'n the wh.re.bouts of the lbove wlln....
e, Plaintiff' I Motion to Compel WII h.lrd beforl the Honoreble Kevin A.
,
H.I. on December 4, 1997. There.ner, In Order WI' .nt....d on December ~,
1997 by Judg. H....
7. Th. Defendlnt did not comply with the Ord.r providing. .Igned wrlllng
with the direction. to the home of the wltn..., The...ett.r, the PI,'ntl" filed I Mollon
tor S.ncIlonl.
8. Plllntlf,.. Motion for S8nction. WII h.lrd b.fore the Honor.bl. I<Ivln
A. H... who IlIued In Order 8Wlrdlng Plllntl",. counlt' f.l. In the .mount
-2-
or S2eQ,OO and Pllln"" we. grlntld lelve 10 re-dl.po.. the Dtfendlnt. A true Ind
cotrect copy or Judge H.... Order, deled April 3, 1998, I. Ittlchld herewith.
9. Promptly th.re8fter, Plaln"ff. coun..1 forwlrded I I.tter to Defendlnt'.
counlll reque.ttd a prompt depo.ltlon date of the Def.ndant I<rl.tln LH N.lton. In
Iddltlon, Plllntlf,.. coun..1 contacted Oefendlnt'l coun..1 by tllephone Ind .110
requ.atad . new d.po.itlon dlte,
10. There8fter, Plaint"" coun"'lglln on MlY 11, 1998, sent Defendlnt'.
counllt a Notice 01 Olpo.ltlon .chedullng Mr. Nelson'l deposition for Friday, Jun.
~,1998. A tru. Ind correct copy of correapond.nce Ind Notice of O.po.,tlon I.
Ittlchld herewith.
11. On or Ibout May 18, 1998, C. Wlllllm Shilling, E.qulre, counlll for
Defendlnt N.llon, lent Plalnllff'. coun.el correapondence Indlcetlng thll the
Depollllon pursuant to Plalntlffl Nolice would not like place. A true and correct
copy 01 Attomey Shilling'. colTt.pondence I. attached h.reto.
12. On or about May 26, 1998, Oef.ndlni'l counsel lint COI'1'8.pondence
to Pial nUt'" counle' Idvlllng him thlt he would provide depolltlon dll.. within I.n
(10) dlY', It he. been Ipproximllely one (1) month Ilnce thll lett.r Ind to dlt. Mr.
Shilling ha not lCheduled thl d.po.ltlOn or the O.t.ndlnt.
-3-
II. QUISTION PRIIENTED
SHOULD SANCTIONI IIIMPOSID AGAINIT
DI'INDANT 'OR HII 'A1LURI TO COMPLY WITH THI
COURT ORDeR DATlD DICIMIIR I, 1"' AND AGAIN
ON APRIL 3. 1....,
SUGGISTlD ANSWIR: VII.
Ill. DISCUSSION
Penn.ylvenla Rule of Civil Procedure 4019 provide. thlt the Court mlY on
motion grant en Ipproprlete ..nalonl for flllure to comply with en order of the
Court. In the In.tant ce.e, Plllntlff flied I Motion t(l Compel Iglln.t the Defendant to
1000t. a witn... by the nlme of Brenne or Brenda Smith. The Oefendlnt teetlfled on
at leaet two (2) o~lion. that he did not know hlr tellphone number or Iddrell
Ilthough he did Indlcete that he did know where she lived. Accordingly, tha Court
Ileued two (2) Sanction Ordera one dlted D.c.mber 5, 1997 end the mo.t recent
dated April 3, 1998 directing the Oefendlnt to provide I ligned writing with detailed
dlntctlon. to the re.,dence of thl. wltnell, In Iddltlon, the Court, I' I relult of tha
non ClOmpllence of the Oefendlnt, granted the Plllntlff the rfght to re-depo.. the
Defendant pUrlulnt to the Court'. Order April 3, 1998. To dlte there ha. been no
compliance nor hi' the Pllintlff received any depolltlon dlte. from the Defendlnt
d..plle repelted requelltl Ind Notice of Oepolitlon Ittlch.d. What the Plaintiff hi'
-2-
received I. limply the I.tter from Defendlnl'. counltllndlCIIllng thaI allOlM Um. In
tha fulur. ha will get lround 10 noll~tng tha Plalnllff with . dala thaI i. convenient for
him. Th.rtaftar, Mr, Shilling lint Plalnll',.. counltl I I.ttar dlled May 26, 1 see, thaI
d,polillon dll.. would be provided within tIn (10) dlY', AJ. thl. juncturt, II hu
bttn approlllmll.ly on. (1) month ,Ince that ,.II.r Ind th.r. hlv' be.n no
d.po.lllon dlt.. wI'1.IIOeVtr, II I. Importlnl to note Ihlt thl. I. tha Dtftndant'.
HCOnd Sancllon Ord.r for Iha flllur. 10 comply, Th. mO.1 rlClnt Ordar of AprIl 3,
1888, It WII IlIuld II I rllull of the non-compllanCII of Ih. original Ord.r In
Dacamblr of 1887,
Th. In'ormallon requllltd .. I rllull of the Sanellon Ord.rI from tha
Dlftndanll. not minor Of Immllll1ll bul releta. lub.lanllaily to many of th. crlllcel
la.u.. conc:amlng thl. accld.nt. Accordingly, Plllntl" would requ..t Sanction.
epproprtet. Ind conll.lanl wllh Ihl fallurt of tha Dtfendant IQ provlda Informltlon
concamlng a mlterjal witn... baltd on hi. fallur. to ob.y two (2) Court Ordlrl
concerning Sanellon. 10 proVld. thll Informallon. Plalnli" would requIII th.
following Sanction.:
1. Judgment 'n 'avor of ".'ntl" on the IAU' of liability;
4-
GAB RilL B. FRANK JR.
ATT~NIY AT LAW
lIOM.T ~ANCAITI" AVlNVI
"O'T 0"101 .oX lOT
WAYN., ".NNIYWANIA 111011
"
albrlll B. Frink, Jr., e.qulr.
1 (.40 Wilt Llnce.tar AVe
p,o, Box &07
Wayne. PA 19087
jNi~rj""""u,'~. ....i~l Tf1 1 '1~;~""~"""'.Hi.Lt~.IM.;j~j1.rl,.lj,J~'jl~Ij/I~~r-fi"";/iJU~'~
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GABRIEL B. FRANK JR.
ATT~NIV AT LAW
130Wlar I.ANoA.n" AVINUI
"OIT 0"101 IOX!107
WAVNI, "INNIVLVANIA 18017
, ,
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C. William Shilling, Elqulr.
HARRINGTON, KAUFFMAN & SHILLING
100 Pin. 8T
eTe 300
H.rrllburg, PA 17101
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conctmlng the wherelbout. of Brennl or Brendl Smilh whom the Defend.nt .pent
the weekend prior to the f.tll Iccldent.
G, Th. Plllntl" I. d..lrou. of 1000tlng the wh.relbout. of thl. wltn... to
.Itebll.h .uch mill." .. the Defendent'. time IIn., the tlm' of d.parture .nd
arrIv.l, un of .Icohol Ind other drug. end other mett.re reletlng to th.. Defendlnt'l
.clivitle. ju.t prior to the fetel .ccident.
<4, Without being Ible to c:ontlct thl. wltn... the PI.lntl" will be .everelly
prejudiced In order to pr.p.e thle mlll.r for trlel,
~. PI.inti" hed pr.vlou.ly filed I Motion to Compel An'wer. to
Interrogltorl.. to obtlln the wherelbout. of the lbove witn....
8. Plllntlff'. Motion to Compel w.. he.rd before the Honorlble l<evln A.
H... on December <4, 1997. Therelfier, In Order WI' ent.red on December ~,
1997 by Judg, H"I,
7. Th. Defendlnt did not comply with the Order providing a "gned Wrillng
with the direction. to the home of the witn,", Th.relfter, Ihe Plllntl" filed I Motion
for a.notion.,
8. Plllntif,.. Motion for 9lnction. WI' hllrd before the Honor.ble KeVin
A. H... who IlIu.d .n Ord.r IWlrdlng PI.lntl'" counlll fte. In the .mount
.2.
I
of l2eQ,OO end Plllnll" WI' grlnled lelve to rl-dI,poM Ihe Defendlnt. A lrue IIld
correct copy of Judge H...' Ord.r, dlled April 3, 1998, I. Iltlched herewith.
9. Promplly thtrelfter, Plllnllf,.. coun..1 fOIWlrded Ilelter 10 Def.nden'"
counMI requllted I prompl depo.lllon dlle of the Defendlnl Krl.lln L.. NellOn. In
Iddillon, Plllntl".. coun.el contlcted Dlfendlnl'. counMI by telephone Ind allO
reque.ted I new depo.ltlon dlte,
10. There.fter. Plelnll".. coun.ellglln on MlY 11, 1998, MnlOlfendln'"
counMI I Notice of Depo.l1lon scheduling Mr, NellOn'. depo.,llon for Friday, June
~, 1998. A true Ind correct copy of correapondence Ind Nollce of Depo.lllon I.
IltIched herlWlth.
11, On or lboul MIY 18, 1998, C, WIlli 1m Shilling, Eaqulre. coun.el for
Defendlnt Ner.on, .enl Plllnll",. coun..' corre.pondence Indl~llng thll the
Depo.lllon puraulnl 10 Plllnll".. NolI~ would nol like pllce, A true and correct
copy of Attorn.y Shilling'. CClI'I'tepondencel. Ilt8ched hereto,
12. On or lboul MlY 28, 1998, Defendlnl'. counlllltnl correepondenc:e
10 Plllntl",. coun.el Idvi.lng him 11'111 he would provide depo.illon del.. Within len
(10) dIY'. It hi' been approximltely one (1) month .Incethl.letter and to date Mr.
Shilling I'll. not schedUled the depo'ltlon of Ihe Defendant.
.3.
GA....IL .. "RANK, JI't, IIQUIRI
"D. No. 31111
1M W... LII1C."r Avenue P.O. lox 107
Wavne, hr..1ayIYMlI 11017
('10) ...1100
Attomty for ptll",",
JIMY MAPP, AdmInlltrItOr 01
.... ...... 01 JOHN IRNIIT MAPP,
Dect.td,
PIli"'"'
IN THI COURT OF COMMON PLIAI
CUMBIRLAND CO" PeNNSYLVANIA
CML ACTION . LAW
No. IWZI CIVIl Term
va.
KRISTIN 1.11 NILSON,
~
: JURY~DIMANDlD
I. FACTI
Thl. Motion Involv.. Slnctlon. Iglln.1 the Deflndlnt for flllure to comply
with the Courl'a Order grlntlng prevlou. Slncllon. dlted April 3, 1998. Th.
Dtftndlnt hi' not complied With thl. Slncllon Order end It hi' be.n epproxlmet.ly
ninety (90) dlY. beyond Judge HI..' Order Ind to date the Plllntl" h.. received no
a..uranc:e thlt he Will be Ible to depoll the Defendlnt In the near fIJIure. Th.
Information lOught by thl Plaintiff I. .xtremely important to e.tabtllh the Dtftndant'l
tlm. Unt, tlml of dtplrlure, u.. of drugl Indlor llcohol Ind the Itat. of mind of lht
Defendant on the dlt. of the Iccid.nt in qUlllion.
II. QUESTION PRESENTED
IHOULD SANCTION' IEIMPOIID AGAINST
DEFENDANT 'OR HII FAILURE TO COMPL V WITH THI
COURT ORDIR DATED DECEMIER I, 1"7 AND AGAIN
ON APRIL 3, 1"'1
IUOOEITED ANIWIR: VII,
III. DISCUSSION
P.nn.ylv.nle Rule of Civil Procedure 4019 providla that the Court mlY on
motion grent an approprllte aanttlon. for feilure to comply with In ord,r of the
Court, In the in.tlnt CI", Plelntl" filed I Mollon to Compel Igllnat th. Defendant to
1000t. I wltn... by the nlme of Brenna or Brendl Smith, The Defendlnt t..tlfl.d on
et I...t two (2) occeaiona thet he did not know h.r telephone number or Iddre..
Ilthough he did Indlcete that he did know where ah. lived. Accordingly, the Court
I.wed two (2) 81nctlon Ordera one dlted December 5, 1997 Ind the mo.t recent
dated April 3, 1998 directing the Defendent to provld. I 'Igned wrlllng with d.teiled
dlrectlona to the re.ldence of thi. witnell, In addition, the Court, I' a reault of the
non compUlnce of the Defendlnt, grlnted the Plllntlff thl right to re-depo.. the
Defendant purauent to the Court'a Ord.r April 3, 1998, To date th.re ha. been no
compIlence nor he. the Plllntl" received Iny d.poalllon dat.. from the Defendlnt
da.plte repelted requ..tl end Nollce of Deposition 8ttlched, Whit the PlelntlfY hi'
-2-
received I. .imply the leller from Defendlnt'. counllllndicetlng thlt It IOme time In
the future he will get Iround to notifying the Plllntl" with I dlte thlt i. convenient for
him, Th.relfter, Mr, Shilling lint Plllntl".. couns.llletter dlted May 28,1988, thlt
depo.ltlon dltll' would be provided within t.n (10) dlYl, At thlt juncture, It hi'
been Ipproxlmttely on. (1) month .Ince thlt I.ller end there hlv, been no
depo.lllon dlt.. whltlOlver, It I. Importlnt to note thlt thil it the Defendlnt'l
IICOnd Slnctlon Order for the flllure to comply, The mOlt recent Order of April 3,
1888, it WI' IlIued I' I reault of the non-compllence of the orlglnll Order in
December of 1 &97.
The Infonnltlon requeated II I re.ult of the Slnctlon Order. from the
Defend.nt I. not minor or Immlterlll but relIt.. .ub.tlntlllly to mlny of the altlcel
I..ue. concerning thie Iccldent. Accordingly, Plllntl" would requllt Sanctlont
Ipproprllte Ind contl.t.nt with the flllure of the Defendlnt to provld. Informetlon
concerning I mlterla' wltn... biNd on hi. fellure to ob.y two (2) Court Ordll'l
concerning S.nctlon. to provide thl. Infonnlllon, Plllntl" would reque'l the
following Sanction.:
1. Judgment In fevor of Plllntl" on thelllu, of Ilabllltyj
4-
(J.\UIUIU. U. I"U,\NK ,JI..
Al10RNUY AT LAW '
130 WfST LANCASTER AVENUE
POST OFFICE BOX ~7
WAYNE, PENNSYLVANIA 11lOI7
LL.M,
filIAL NJVOCN:lV
(610) 1164-1600
~IMM: (110)......71
,~: (1\0).........
April 15, 1998
C, William Shilling, Elqulrti
HARRINGTON, KAUFMAN & SHII.LING
100 Pin. Str.et
Suit. 300
Harrisburg, PA 17101
RE: Jerry Mapp, Admlnl.tr.tor of the E.tlt. of
John Em..t MIPP, D.c....d v..
Krl.t1n L.. N.I.on
FILE
Delr Mr, Shilling:
AI you are aware Judge Hels hes Issued a Sanction Order In thll Inett.r,
At your earliest convenience please contact me 10 that wet mey Ichldule the
depolltlon of Mr, Nelson.
Thank you for your Inter.st and cooperation In this maller,
Very truly yours,
GABRIEL B, FRANK, JR.
GBF/r:Plf
,;
JERR Y MAPP. Admilll~trnt(jr
(jflh~ E~tatc ot'JOIIN ERNEST
MAPP. Deceased,
PllIintiff
IN nm COURT OF COMMON PLEAS 0/1
CUMBERLAND COUNTY. PENNSYL VANIA
CIVIL ACTION. LA W
VS,
95-628 CIVIL
KRISTIN LEE NELSON,
Delendant
JIJR Y TRIAL DEMANDED
IN RE: MOTION FOR SANCTlO"iS
ORDeR
AND NOW. this ') ~ day of April, 1998. the motion of the plaintlffforsanctions il
GRANTED, The plaintiff Is awarded counsel I'm in the amount of $2~O,OO, Th~ plall\tiff,ln
addition, II granted leave to redepose the defendant.
BY THE COURT,
Gabriel B, Frank, Jr,. Esquire
For the Plaintiff
C. Wlllillll1 Shilling. Esquire
For the Defendant
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