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Home My WebLink About95-01316 -~ <:'l d , C?(~- ') -,1"'" i \ LUCREATIA PERRY Plaintiff v. DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW NO. 95-1316 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF MEETING OF ARBITRATORS PLEASE TAKE NOTICE that the Arbitrators appointed In the above-captioned action will sit for the purpose of their appointment on Tuesday. November 25. 1997, at 1:00 o'clock P.M. In the Old Court House, Second Floor Hearing Room, Cumberland County Court House, Carlisle, Pennsylvania. Date: '1_75"""77 Taylor P. Andrews, Esquire Anthony DeLuca, Esquire Robert G. Frey, Esquir By: TO: Jefferson J. Shipman, Esquire 320 - Market Street Harrisburg, PA 17101 Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street, Sixth Floor POB 999 Harrisburg, PA 17108-0999 David M. Myers David M. Myers Funeral Home & Myers Furniture 64 2nd Street Newport, PA, 17074 P. Andrews, Chalnnan Anthony L. DeLuca P.O. Box 358 113 Front Street Bolling Springs, PA 17007-0358 Robert G. Frey Frey & Tiley 5 South Hanover Street Carlisle, PA 17013 Desmond S. Mactavish and Sally Myers Mactavish 60 2nd Street Newport, PA 17074 I ~. ,."_,,,-,,",",....,< ,,,, . '" .~.;~ .' ':..::;..L~ - ~ ,..;. - . I.. '. . ' Lucreatia Perry c/o Jefferson J. Shipman, Esquire 320 Market Street Harrisburg, PA 17101 Courl Administrator's Office Cumberland County Courl House I Courthouse Square Carlisle, PA 17013 Bulletin Board Prothonotary's Office Cumberland County Court House Carlisle, PA 17013 Lucreatia Perry v. Desmond S. MacTavish, Daivd M. Myers Funeral Home and Myers Furniture IN TIlE COURT OF CO~lMON PLSAS OF CLlIBERLAND COUNTY, PENNSYLVANIA 11 I I I NO. 95-1316 CIVIL 19 RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOUlTI1ENT OF ARBITRATORS TO THE KONORABLE, THE JUDGES OF SAID COURT: Jefferson J. Shipman, Eaquire . counsel for the~aintif~ in the above 1. action (or actions), respectfully represents that: The above-captioned action ~~~XX~~S~KK~ is ~K~~~ at issue. The claim of the plaintiff in the action is S 25.000 The counterclaim of the defendant in the action is _0_ 2. The following attorneys are interested in the wise disqualified to sit as arbitrators: cnse(s) us counselor are other- Brooks R. Foland. Esquire WHEREfORE. your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Wt~ ORDER OF COURT AND NOW, S'r.?t..,..... /'r/Z. IS, 19:i.Z. in consideration of the foregoing pe~ion, I A Ylalt. ANt/lll.,,- .JS I Esq.. dl!)"f),I1"Y lJ,.Lu "~..1 Esq., and ,,(J~t.d'b. Mt..'I .Esq., are appointed arbitrators in the above-captioned action (or actions) as prayed for. . --'\ By ,,1 '... . I', (, \ ~.,) j.-' i ~..,J ...., ." tJV'.I :.J P. J. }~~!;,:,_.',<, ) "",1 'A ~ .....l (.- l-; ~ .,,' .." ;-: 1-' .. ~~) "'.... llJ(~ <'1 ~ ?;.>; , ~ "- c.;lt) - - ~ t;; " H::1. 0_ '~m~ r2r ~~- C. ....:t. (: I l~ 1.'-.--- ~ [tIU 0-, ',"'['J I!:: lJ-I '~)C_ en f":: u. r- ":1 ~ lL ~ 0 C' U ~ - . , . , . LUCREATIA PERRY Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. q~'. jJJ~ C;VL,/' I.i.,..~ v. DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED TO: Prothonotary Please issue a Writ of Summons on behalf of the Plaintiff against the Defendants in the above-captioned action. HANDLER AND WIENER ----; '" By ~,j" ) ,- Datel_ ,j!I.>/"\ '. ~-) I,.' Carolyn Anner, Esquire Attorne .0.# 62636 319'MarKet Street P.O. Box 1177 Harrisburg, PA 17108 (717) 234-S031 Attorneys for Plaintiff ~a,..:..( IH. 'J....... j ,.)J ......-'- ~j\...v-c-~C Ih. '~u., ..Lt............'" t1'l~"-- )'\.41 V.J -J A.--4.L,\.I.. G:"'u........ l! .., J) I }{)'/'I (, '4 :J .........A 'sr:.uJ., (lL""!",,,,;, t.. " '0 .. t':'h"I'r.,J.1 .t,/n,\c.I',,~.'~.J1 .)A 11'( J~I Vf'r' III Ih'..1/h/d/'j ~ ~,\' I. ( r, Nl"l'/.I..~', J '.J. ~cJ .:J"",I .)r.. I 1u -,'/ .. " I i ,I , " 1 ~ '1:'-' " =-= ,~ ;0 ~!, ,-' I ,-;. ~ - .1"'_ , . . -' C3 W N ~- ,::J;: ~ . -....':1 " "- '., ~> ..." -' ,;;,..';:. _' i;~ ;:.~ -~;: ... -u; c.n ~~ {9 'tl "\ ~ .. t. !>. ~ :..\ t; t..- v <:. d ~ f -, (" "'"" ., INSTRUCTIONS TO SHERIFF Please serve, by deputized service, the Defendants, David M. Myers, David M. Myers Funeral Home and Myers Furniture at 64 2nd Street, Newport, Perry County, Pennsylvania, by leaving a copy of the enclosed Writ with the person in charge at the time. By ~--~ ..----/ :> carolyn M. rfer, Attorney .0. #62636 319 Ma et Street P.O. Box 1177 Harrisburg, PA 17108 (717) 238-2000 Attorney for plaintiff Date: 'J /11!i (' i ::~1 r " INSTRUCTIONS TO SHERIFF Please serve, by deputized service, the Defendants, Desmond S. MacTavish and Sally Myers MacTavish at their residence located at 60 2nd Street, Newport, Perry County, Pennsylvania, by leaving a copy of the enclosed Writ with the person in charge at the time. By " / /~/ c/'- " ) Carolyn Mer, Attorne <0. #62636 319 M et street P . 0 . Box 11 77 Harrisburg, PA 17108 (717) 238-2000 Attorney for Plaintiff Datel".1/P~t .:_: ,.. ;,"; . co ..,..\ \';': , or: ~: "\,:\" J' ;";.: . _. ,~l ~:\ ;.;J:...", '.'- .~-J~. ..., ~., . ,.., l_ ,-:-i ";-)1 ,.. -< ~ ~ f:;' -<: i I 1 I I I = ,~ ,., - .r- c ..... l-' =- = . ~ " r [ i 1 I ! , I . ..,~.;C::: ....#i I i I . . I Commonwealth of Pennsylvania County of Cumberland Lucreatia Perry VB David M. Myers David M. Myers Funeral Hane and Myers Furniture 64 2nd Street, Newport, Pa, 17074 and Desmond S. MacTavish and Sally Myers MacTavish, his wife 60 2nd Street, Newport, Pa, 17074 Court 01 Commoll Plea.s No. ...~~:J_~!~.~!VI1L-~~-..._-...... 19.... III .__s:iviJl~ctjJ)o=~...._.....-...-.-.-... To ..~yj._q.~~..MYenh-tlsl.'l.:I.o.M..-~.ers-.F.uoeral Hane and Myers Furniture and Desmond S. MacTavish and Sally Myers MacTavish You are hereby notified that ....._..IdU:te.utla-P~....-.--.-.......----._-"-'----.--"----..----.-.-.--.-............... the PlaintiH ha s commenced an aetion In ----..(;::l....:l.~.!,aw_.-.-.-_.----.-.---..-...-..--.....-..... again.t you which you are required to defend or a delault judgment may be entered again.t you. (SEAL) Ilate .__~1!~gD..l1____...._..._.... 195t~_ ..__.~~~QC~-.~._ji~!~~_~_..__.__.___._.._...._ Prothonotary By __.~ly!Jw_C2.._~;;~~~.._.__._..._.___._.. . ' " . ~:I:W~ ~(f[[ ~ 3~,;~ ~ NI""~ r ftn~~~ f ~ IV:J: . ~~ I . rt. ~&~~~- rt ~...,l/lg ( !i:' W~~ ~. ~ ~~&( j ~ rt- -.I- Ei' ~...,Jn1 ~pl [.& :I: . ~ ~ ~ a i ~ ~ -.I -.I "-{i'-- , .-.' . . . ....... . " ) OFFICE OF PROTHONOTARY Cumberland County CARLISLE. PA 17013 Date J!2:;h/-.2, I 99/, This Is to notify you thai /.,.d>E-JJ,,,, Pf:.JLJcl vs.~ulcL pI /?('1"rL\', 0.,jfl No, 9.c; _ /UI.:.-J I , ; d,~Lt:JJ-J):\ . has been Listed for Argument on ~/_.29 .19'2"'- Cumberland County Argument Court Rules 210,l1hrough 210,14 shall be strictly enforced, . . AI .,.k?"".,. ..' P./, ).;>(JQ. ..J ~. PROTHONOTARY '4/>7 /. , ,.,~_.."'~'.' " , ...... . - ~~....... .-'.~ .. '- ~ . -.-- -"-' ." " . " )\\"H~lyr rO 0 'HNjlfjf Forward/ng Orj;-'Exp/rvd 1 , . ~~~\jl" /"..)\. :i." Hf:lG,PA 170 21'oi,iS$\i2"O~ \ II ~ 10 , , ~- - , , ./ ... Wer ati Perry 2648 Le 'ngton Street l~rri5bu g, PA 17110 ,J Jr"' vflJ ':J- . ,,1 [}. if ,j C\ 0 ". 1'1 ~L\ ..- J,- '36 I, .. ,~ . - ..-:-....-... -. .'~'." -,_. - . -. ,-- I I '.- .. SHERIFF'S RETURN CASE NOI 1995-01316 P COMMONWEALTH OF PENNSYLVANIA I COUNTY OF CUMBERLAND PERRY LUCREATIA VS. MYERS DAVID M ET AL . Sheriff, who being duly aworn according diligent search and inquiry for the within MYERS FURNITURE R. Thomas Kline to law, saya, that he made named defendant, to witl but was unable to locate deputized the sheriff of to serve the within Them in his bailiwick. He therefore PERRY WRIT OF SUMMONS County, Pennsylvania. On March 28th. 1995 the attached return from PERRY this office was in receipt of County, Pennsylvania. Sheriff's Costsl Docketing Out of County Surcharge So answers! . . ~~-'- .// , ~ .-;"/ ./ .,...:.-~~"""I"r'/ ~~-:.;:,; . omas Kline, Sheriff 6.00 .00 2.00 $6.00 CAROLYN M. ANNER 03/28/1995 subscribed to day of Cf..,P A. D. before me Sworn and this -:J,.{ 19 I'j( ~/u- C', )ltddt-J 1~6 t'rothonot<lrY I I I I I d '! :IH-:"f' ' 1)1 ,,) \ \ SHERIFF'S RETURN CASE NOI 1995-01316 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PERRY LUCREATIA VS. MYERS DAVID M ET AL R. Thomas Kline to law, says, that he made named defendant, to wit: . Sheriff, who being duly sworn according diligent search and inquiry for the within MYERS DAVID M FUNERAL HOME but was unable to locate deputized the sheriff of to serve the within Him in his bailiwick. He therefore PERRY WRIT OF SUMMONS County, Pennsylvania. On March 28th, 1995 the attached return from PERRY this office was in receipt of County, Pennsylvania. Sheriff's CostSI Docketing Out of County Surcharge 6.00 .00 2.00 So answer~l _ ~.... ).".,.-:,/ ~. // ~~.. . ~ '"""-" r _,?:I,~ ,/;:;.e~ R. Thomas Kline, Sheri!! ~6.00 CAROLYN M. ANNER 03/28/1995 Sworn and subscribed to before me this J,l.-{ day of (]l,-,.:J , 19 9~~ A. D. CJ,u- D. ))LLL'L ~t!i' v Prothonota y ....._~. t SHERIFF'S RETURN CASE NOI 1995-01316 P COMMONWEALTH OF PENNSYLVANIA I COUNTY OF CUMBERLAND PERRY LUCREATIA VS. MYERS DAVID M ET AL .. R. Thomas Kline to law, says, that he made named defendant, to witl . Sheriff, who being duly sworn according diligent search and inquiry for the within MACTAVISH SALLY MYERS but was unable to locate deputized the sheriff of to serve the within Her in his bailiwick. He therefore PERRY WRIT OF SUMMONS County, Pennsylvania. On March 28th. 1995 the attached return from , this office was in receipt of PERRY County, Pennsylvania. Sheriff's Costsl Docketing Out of County Surcharge 6.00 .00 2.00 So answers I _.-/~'/-'/ - # "~ .../ f Y~'~~;('/,/..,;-.> R. Thomas Kline, Sheri!! 58.00 CAROLYN M. ANNER 03/28/1995 Sworn and subscribed to before me this ,3 <.oL day of ot,,j) 19 'i{ A.D. (h~~ 9 ~~t'e.,-, x4 ~ ro onota y SHERIFF'S RETURN CASE NOI 1995-01316 P COMMONWEALTH OF PENNSYLVANIA I COUNTY OF CUMBERLAND PERRY LUCREATIA VS. MYERS DAVID M ET AL R. Thomas Kline to law, says, that he made named defendant, to witl . Sheriff, who being duly sworn according diligent search and inquiry for the within MACTAVISH DESMOND S but was unable to locate deputized the eheriff of to serve the within Him in his bailiwick. He therefore Pennsylvania. PERRY WRIT OF SUMMONS County, On March 28th. 1995 the attached return from , this office was in receipt of PERRY County, Pennsylvania. Sheriff's Costs: Docketing Dut of County Surcharge 6.00 .00 2.00 So a~we~,: -/-' )/ ..:/;., ....( .v.~~,,;t'~ <"f:;'--;";" H, Thomas Kline, Sheri~f ~8.00 CAROLYN M. ANNER 03/28/1995 Sworn and subscribed to before me this ,;..t day of 01,:(1 19 'I" A.D. ~..,u.... C, )L.cl...... ~"tj, , Prothonotar'y SHERIFF'S RETURN CASE NO: 1995-01316 P , COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PERRY LUCREATIA VS. MYERS DAVID M ET AL R. Thomas Klin... to law, says, that he made named defendant, to wit: . Sheriff, who being duly sworn according diligent search and inquiry for the within MYERS DAVID M but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY County, Pennsylvania. to serve the wi thin WRIT OF SUMMONS On March 28th. 1995 . this office was in receipt of the attached return from PERRY County, Pennsylvania. Sheriff's Costs: Docketing Out of County Surcharge PERRY COUNTY 18.00 9.00 2.00 70.00 $99.00 So answers I / ..., ,. /t~{:;/,'~~/ /,/:;j// .-FJ .7'/c('//in.;.r- .. "'. H. Thomas K11.ne, 5her1ff CAROLYN M. ANNER 03128/1995 Sworn this 19 and subscribed to ,'!t,\.. day of QIH.'P g before me qo{ A. D. C)-.J u,; Q. '>>4it....,.... AltJ-r.; I"rothonota~y I \n Tn!!! Court cr C.:mmO:1 P!e:::s cr C:Jr.::'::.:It'1=nd C.::u:-:-:y, Psnrlsyl'lc:r:io Lucreatia Perry 'is. sally Myers MacTavish :'1'0. 95-1316 civil Term - ':1 ----t .. --- ~ow, March 15. 1995 ~9---. !. S~~~ 0:::' C':nt3::?..!..A.'ID COL~':'~, ?A-, co h=--by d..::u= th= Sb.:=S oi Perry C .. 'V' .:lu:ty to =.,,::::-.:t:: =u I :::, ... ... .. d '.1. .. ::::.s e....--::u:.:cu. ::-..,0' -.....- :It == :::rud:: :"'.....1& or. . --., . ::: :!:ili:~. r~~;~~ She,....l~ ot C:::::::u'.:u:d C~u:t1. :':1. . "'~d 't ~ ~ . _~ aV1 or _e:'"71~ :Sow, March 24 !9 95 lOl30 o'dea. ,1\ ~L s::-.-d -. . -. ::: ~,~:" writ of Summons ~FCa Sallv Mvers MacTavish ~t 60 2nd St., Newport, Newport Boro, perrv Cou~ty, PA bybJ:cll:q:o Sallv Mvers MacTavish '" true and attested <:::py ot ::: o..~ -,I Writ of Summons ,. :md -,,:. !cawa :0 her . ... == '::::1t:::s :.-:::::1. So :=we:, /Z/ {' ~,,-d' Deputy Shc::1 af Perry CoWlll'. ~.. 5WO::1 :md sub=-.J:ed be:'= ' :: :::s ~ 6yai I\L}, .(., dO' ^u'f COSTS ::.c..~'n:cz ~au.-\.G:C: A.:7lDAv"IT s 10 ;.1("- -.---- " -------. s t_ ..__ I -, c . c -\ . ... I d ... or 1 .,....\1-.:'1.\...., I .,........"'1 n ,I n\!J our! or .:mmO:i t e:s '.........-".. -. .............. II Psnnsyl'lc:ni:: Lucreatia Perry 'is. Myers F\lrn i ture :'to. 95-1316 Civil..,Tenn .---, :?..-- :-;ow, March 15, 1995 '9 T S--.--:':>T-:'- 0- ,........G""""T """ CO.....,~v ::I" "'0 ... -..... ___;:. ~ ...w... ":)__,,.,..,*-1 "".,. '"'. ........... ~ h=-..by ci:;:UC::: th:: Sn::S oi Perrv C .. 'V' -:JU::ty :0 =::-.1t': =.u , :::., lo.. ., . 'lo ci '.1. . :.::s ::::u:::.cu :.'''0' -"'..- 3,t :-= :-:::u=t:::. :"~ Ot . --:l . :he ?!:l!:::.:I'. r~~ She.."Iif at C"-"er'.;u:d CJW:t1. ?:l. . Afiida.vit or Se:'"7i~ :iowt March 20 !995 .. . .- 9:17 ,. o'':!ea ,A ~c. 1:,.-d . ..0 :.:~ wn.::n Writ of Summons l.1poa David M. Mvers ~t 64 2nd st.. Newport. Newport Bore. perrv Co~ntv, PA by::u:~:o David M. Mvers 3. true and attested CPT ci :::= :2rl;:::U Writ of Summons ... :I.llci -,,:. !c:awu :0 him :e :::::te::3 :.h::=i. So =-Vc:3, Deputy t2J ~ j?:v<l' , .shda' .f Perry . CollAtT. l':s. 5wor- me! r.li::sc:-J:d bdcrc ==~~Q,!oi /11..,1. /{.,. ti. -/.~\} ! !?..u::.. CCSTI 5,,-~vlC:: ~m.ZAGZ .~:lJJA"'Tr s __J...--__ S 1_ .-a In Tna Court OT C~mmO;l F!e:::::; or C:Jr.::.-:~!t'l=nd c.:.:ll.::-:','Y, Psnnsyl'lc:ni:: Lucreatia Perry 'IS. David M. Myers l'\.1neral !lane " :-roo q~-1316 Civ,i1 T~nn __ ---. :~..- :iow, March 15. 1995 ~9_ !. SE:Z?.!::::- 0::0' C~G:::?..!.A."ID COt.il':'Y, ?o\.., co h=-..b)r d...::u== = S~E oi Perrv C:Jl1:t'f :0 :::::::'".1t: =.is ',V:!:, == =::u:::cn. =Q.; -.,~- ~t :::: ~ ::d ::.!k oi :.:: ?!:r!::~. :r"fA~.~~ She..~ a! c;::::,er!..u:d CJW1t1. :'3- . Affida.vit Or Sem= ~OYl, March 20 .0 95 J .- -. . ... 9:17 ft' o":.!ca n ~r. :::-.-d . .,. :.:= ~t:::n Writ of Summons ~t David Myers Funeral Home 64 2nd st., Newport, Newport Boro, perr~ County, PA '.Ipaa . . .. :;y.::u:c::1.t:a David M. Myers 3. true and attested C::t:J"I' of :e :::s,,:~-.,I writ of SummonR 00 ..:: .~ :I.Ild -,,:. bowu :D him ::.: '::::1t:::s ~L::::::i. So :r=w~ ~~I ~ ~e. Deputy 5hc::a' 0/ Perry CoWlIT. ::1. Swot:: :uld rJi::sc:-J:cll:d= := :!:!s ~ 6., oi ""._1 19~ COSTS ::&,..~ V1CZ ~a:r..;:."'GZ A.::wAYIT .s ..c. /). - ./...., f;' " --~-_. s r_ ....-4 T' c: . c -! . - I cl ,0, pl' In, ne ourt Of :mmO:1 r =::5 or \,.:Jr.::':::.:!t'l::n ,-:,)w,;;":y, anr:sY'lc:r:IO Lucreatia Perry 'is. David M. Myers ~o. 95-1316 Civil Term .~ ---, .....-- ~ow. March 15, 1995 ~9_!, S~-::"':I'r-="::' ---- O:F C~G::::?.1.,A."l'D COt.~'l''!'. ?A.. co h=-..:,y d-;:ut!::: t!:: S~5 oi Perry C"u::.t"f :0 :::::::-.1te .:";c 'tV=!:, '0' ., . .' . .. ... :::.s e...~u=:cn :...,(1' -"'...- 3.t ':.::.: :-:::u=t ::C1 :-~ ot =: . --:l . ?!:ili::S'. ..//;:/ 'i/!'.# r~~..<<:. ~ S4e..'1:l at S"-"er'..:u:d c~u:tY. ::1. Affidavit or Sem~ ,.. ~ow, March 20 l!? 95 ... 9:17 o'dea .A ~L l::-o':'i J ...- . .., \~rit of Summons =~ ~r.::.:.n '.1FCtI David M. Mv'ers ~t 64 2nd St. , Newport. Newport Boro. perrv CO!lnty, PA by::u:clli1;:o David Mvers 3. true and attested c::py ct :e -":~~"I .....::: Writ of Summons 2nd -,do !c::owlI :0 him ::.e :::u::::s :.~:.-=i. So =w=. /Z/ (' :'/~~~tJ Deputy Shd.:i af Perry CoWlrr. ::1. --:.:ls ,,! i M .J-v oi -- -~. " / ,<to ~. . 1Q vof-- ,,-- CO51'S ::r-.-<.VlCE ~Ol..E..-\GE .-\:::l.lJA"y!! s 5WCr:1 :md sai:sc-J:d bdcr.: "': ~ " " ~--- r_'~ " __.L.-___. $ , \., rn!:J Court or C.::mmon ple::s or. C:.Jr.::.:::!lt'i::nd C,::w:-;~'YI Psrmsylvc:r:io Lucreatia Perry Desmond S. MacTavish 'IS. ::-fo. q5-1316 Civ.i1 Tpnn. ---. :?..- :-low, MArch 15, 19Q5 ~9---. !. SEZ?~~ 0:::' C~r3:=:'='..!'A.'fD COt,~,!"? ?-\.., co . . . . . ... .- . ==-...:ry c-:::uc: ~ .;:c=.:x or Perrv C-'\1:t"f :0 =::'".1= ::is 'tV:!:, .., .. . ., d !.t_ .. ....,. '- :.:::.:s =u=::cn :~..,,,, -!'j"- ~t == :::::u=t:.: :-~ at ::e :'.::J.:.:::.::t. . --:l , _ r:~rl!<:~ SlIe.."1if at C:=!ler'.3.Cd CJl1:rr. ?:l. . Aiiida:vit or Se:--ri= :-;0"', March 24 !9 95 .. . .... 10:30 o'':!cc!; . A ~r. l::","ci . . to == ~t:::n Writ of Summons 'Jpoa Desmond S. MacTavish 60 2nd st. " Newport, Nel/port Boro, Perry cou!1ty, PA ~t =r ~~ ~ Sally Mvers MacTavish :L true and attested r;:F! at , = :Jrl~'-.,I Writ of Summons " md -~,.:. bawn :0 her :h.: .:::t:::s :.L::::::i. So :L::.SW<=', Deputy evzF (":; ?~-<'t" Shda' of Perry CoWley. ?.. Swot: :md 1'.l~J:,d bd= . == ~ -1.i:!!.. 6y at ,t/. " / 1~~ COST.5 sn'''1CZ ~crU,AGE .-\::: llJA yrr s 11',,- d,. /""..p, --""'--'"---. s ,_ ---a - LUCREA TlA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 95-1316 Civil Term DAVID M. MYERS, DESMOND : S. MACTAVISH and SALLY MYERS : MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTIlONOTARY: Please enter the appearance of David A. Fitzsimons, Esquire and Mette, Evans & Woodside on behalf of Defendants. METrE, EVANS & WOODSIDE BY~~~~ DA VlD A. FITZSIMONS, ESQUIRE Supreme Court J.D. #41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants DATED: 02/08/96 56899. t ~ .. CERTIFICATE OF SERVICE I, DAVID A. FITZSIMONS, hereby certify that on the -B.lli.. day of FEBRUARY, 1995, I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U.S. mail, First-class postage prepaid, as folIows: Carolyn M. Anner, Esquire HANDLER AND WffiNER 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 METrE, EVANS & WOODSIDE BY: '\ ~~ --~ DAVID A. FITZSIMONS, ESQUIRE Supreme Court J.D. #41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232.5000 Attorneys for Defendants '. . - -. .' n '.'"') r) I \,.;., 'n ",'~ ~ ..., "I :.-t1 1~ ':T1 . ,,, \ "'I .l,__ :.';1 I .....n' L; . ", ',>]';--) to: ..~O ....;1 ' "-'J .-' po-'" : t~< ...." ~~C) ,( I (;~ ~'n1 . ' ~? ~ -.; :...) c' -, ~IJ . ro,) -. '. I . LUCREA TIA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. . . : NO. 95-1316 Civil Term i' DAVID M. MYERS, DESMOND : S. MACTAVISH and SALLY MYERS : MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants . . : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE FOlJ RULE TO FILE COMPLAINT TO THE PROTHONOTARY: PLEASE enter a Rule upon Plaintiff, Lucreatia Perry, to file a Complaint within twenty (20) days after service of the Rule, or suffer judgment of non pros. METTE, EVANS & WOODSIDE By~3 ~~1 DAVID A. FITZSIMONS, ESQUIRE Supreme Court I.D. #41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 --~ Attorneys for Defendants DATED: 02108/96 56899.1 " '. "" QERTIFICATE OF SERVICE I, DAVID A. FITZSIMONS, hereby certify that on the..B.th.. day of FEBRUARY, 1995, I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U.S. mail, First-class postage prepaid, as follows: Carolyn M. Anner, Esquire HANDLER AND WIENER 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 METrE, EVANS & WOODSIDE ~ '0, (~-. f", BY: \\--~ ,--;:~ - DAVID A. FITZSIMONS, ESQUIRE Supreme Court I,D. #41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants . ... , C'; \.'") ,,~ , ~. ~~ ) 'd ; "'1 . ..,,! ;'q , (i. I l~' ,i:--r} I i I .~..tr .. \j,,) "? >~O " ""'1 , ;'''r . " , .!tl , to, '--I'f1 .- ~ - I .. ~:'~I :~l '-~ ~'.i J'..l ...; LUCREA TIA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 95-1316 Civil Term DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS : MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED RULE TO: Lucreatia Perry, Plaintiff c/o Carolyn M. Anner, Esquire HANDLER AND WIENER 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 Attorneys for Plaintiff You are Ruled to file a Complaint within twenty (20) days after service hereof, or suffer judgment of non pros. DATED: ,~. 1 ~ t/I! . . ", 1 , '.,' ,~'l':'\.-"lr:.' ''''''','';-; ~.JC,;:,"'~Ji( d~:'1. l.l",--" '/"'-'.,il."'7',l "'t,'!;. ". '., " . ,', ,/0', J. ~ ",;_,'!'".;,.\t,!;Y}l;,/\\(,i!,~:.t',"p~I.r.~::,I,t;~,~i!-'(~:f;\l'-;!';";"!i~'n:"r}-' ",;"'. \"<1 "'. J . ' ,. '_...~ ._. "_I.'_...n.:i,.1#-"".:'-.:.,t"~q,~,,"Jtl..- .\,.~'.....tJ.,1.~1l.~;).:"h,,,..a_.g.;'..""-,.l~.\l.....:j,..,,:..::.l,."........."!;,.~": <, ,.' r-, :-~ "'+J r,.i,. "". -,:' ~:' t':) r'~'J I I ~ '.'J L,~ ') -" "d 'J , I.(J n -I', ~, I j" '.1 :rJ r- . ?CJ -~'~6 ,.. I i:: -.,.) j-i(r, f~l ~; .::r' -.,. <' ... >. -.... ..,_.. t. I . . '. I , I I' I 'w~ij -.".,'.,,'. EDGAR B. BAYLEY JUDGE I COURTHOUSE SQUARE CARLISLE. PENNSYLVANIA 17013.3387 " I 'l~~~;;.~"~~. .:J. U'j~" l..i} UN \--. OElMAA.nlr I.". """l~; '-"-~n ronV'JA"OlfJf; (.." '-' , '. . i1;1 . . . . . :032: : . . . U.s. P09TA I! : . " .,' ",' ,. ~l' Lucreatla Perry 2648 Lexington Street Harrisburg, PA 17110 ....-...~..-........~-..... ~ --"--'--_T"'~"'''''---''''''MI'\J.i,:;-;.~..j.;''''.4i".~_t..1..4&~:~lii~w;... -~",.- '..c ~ -," , " . . , . . t '~, .- ....--- LUCREA TIA PERRY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, DEFENDANTS . . : 95.1316 CIVIL TERM BEFORE BAYLEY. J. ORDER OF COURT AND NOW, this 7th day of June, 1996, the preliminary objections of defendants, Saliy Myers Mactavish and David M. Myers to plaintiff's complaint, ARE SUSTAINED. Counts In the complaint agaInst Sally Myers Mactavish and DavId M. Myers, ARE DISMISSED. Edgar B. Bayley, J. \ Lucreatla Perry, Pro se 2648 Lexington Street Harrisburg, PA 17110 David A. Fitzsimons, Esquire For Defendants :saa , \ LUCREA TIA PERRY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, DEFENDANTS ., . . : 95-1316 CIVIL TERM BEFORE BAYLEY. J. ORDER OF COUlD' AND NOW, this 7th day of June, 1996, the preliminary objections of defendants, Sally Myers Mactavish and David M. Myers to plaintiff's complaint, ARE SUSTAINED. Counts In the complaint against Sally Myers Mactavish and David M. Myers, ARE DISMISSED. Edgar B. Bayley, J. \ Lucreatla Perry, Pro se 2648 Lexington Street Harrisburg, PA 17110 David A. Fitzsimons, Esquire For Defendants (. _ ~.". n~.llD/lo/r,(".. ....3' 'f. j :saa , _', +,~ .....:. '. . < ~ ,....~_. tWO , , ! I ~ c::I Co M .. :j~ r - - ()=~ -~ - '-):a.: --:: .~~:.-.. C I- "S~ U'. I ~~~ \lJ 5 F -, ~ \D :,) 0' u ~ r LUCREATlA PERRY Plaintiff IN TIlE COURT OF COMMON PLEAS CUHBERLANO COUNTY. PENNSYLVANIA CIVIL ACTION . LAW vs. OAVID H. HYERS. DESHOND S. HACTAVISIl and SALLY HYERS. HACTAVISIl. hIs wire. DAVID H. HYERS FUNERAL 1l0HE AND HYERS FURNITURE Defendants NO. 95.1316 JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend ogDlnstthe clDlms set forth In the following pDges, you must tDke action within twenty (20) days Dfter this Complaint and Notice Is served, by entering a written appearDnc. personally or by attorney .nd filing In writing with th. Court your d.fcns' or objections to the clDlms ..t forth DgDlnst you. You Dro warned that If you f.ll to d. so th. CDS' may proceed without you and D Judgment may b. entered DgDlnst you by the Court without furth.r notlc. for Dny money clDlmed In th. complDlnt or for Dny other clDlm or r.ll.f requ..ted by the PIDlntlff. You may 10.. money or property or other rights ImportDnt to you. YOU SHOULD TAKE nus PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TElEPHONE TilE OFFICE SET FORTH BELOW TO FINO OUT WHERE YOU CAN GET LEGAL HELP. NOTICIA Lo hon d~ndDdo Q ustcd en La corte. SI ustcd quloro dcfendcrsQ do cstoa demandos Q~puestDI cn lDS pDglnas .Ignulentes. usted tlene vlentD (20) diD. de plDzo Dl pDrtlr de Dl fechD de lD demandD Y lD notlflcaclon. Ustcd debo present Dr una oportenclo aserttD 0 en persona 0 por obogodo y orchlvor en la corte en forma Dlertto sus dolonlas 0 sus obJectlone~ 0 los demandos en contro de au persona. Seo Bylsoda que st ustcd nO so 'allende, la corte tomaro medldos y puede una orden contra usted sin previa Dvfso 0 nottflcatlon y por cualquler queJD 0 Dkuvul quo es pedldo en ID peilclon de demDndD. Usted puedo pDrder dlnero 0 su. proplcdodcs 0 atras derochas Importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IHHEDIATAHENTE. SI NO TIENE ABDGAOO 0 SI NO TIENE EL DINERD SUFICIENTE DE PAGAn TAL SERVICIO. VAYA EN PERSONA 0 LLAHE POR TELEPDNO A LA OFICINA CUYA DIRECCIDN SE EHCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUIA ASISTENCIA LEr.AL, OAUPHIN COUNTY LAWYER REFERRAL SERVICE ~ 213 North Front Street /" HDrrlsburg, PennsylvanlD l7l01 17108.1177 . Ifgfcomplalnl Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LUCREATIA PERRY, v. CIVIL ACTION - LAW DAVID M. MYERS, DESMOND NO. 95-1316 S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, LUCREATIA PERRY, by and through her attorneys, HANDLER & WIENER, and makes the within Complaint against the Defendants as follows: 1. Plaintiff, Lucreatla Perry Is an adult individual currently residing at 2648 Lexington Street, Harrisburg, Dauphin County, Pennsylvania 17110. 2. Defendant, David M. Myers, is an adult Individual currently residing at 64 2nd Street, Newport, Perry County, Pennsylvania 17074. 3. Defendant, Desmond S. MacTavish, Is an adult Individual currently residing at 60 2nd Street, Newport, Perry County, Pennsylvania 17074. 4. Defendant, Sally Myers MacTavish, Is an adult individual currently residing at 60 2nd Street, Newport, Perry County, Pennsylvania 17074. 5. Defendant, Desmond S. MacTavish Funeral Home, is a sole proprietorship established under the law of the Commonwealth of Pennsylvania with It's principle place of business at 64 2nd Street, Newport, Perry County, Pennsylvania 17074. 6. Defendant, Myers Furniture, Is a sole proprietorship established under the law of the Commonwealth of Pennsylvania with It's principle place of business located at 64 2nd Street, Newport, Perry County Pennsylvania 17074. 7. At all times material to this action, Plaintiff, Lucreatia Perry was the owner and operator of a 1982 Gray Buick Skylark with Pennsylvania Registration Number ZGA506. 8. At all times material to this action, Defendant, Desmond S. MacTavish, was ., the operator of a 1979 Lincoln, owned by David M. Myers, with Pennsylvania Registration Number M 200. 9. At all times material to this action, Defendant, David M. Myers, was the owner of a motor vehicle operated by Desmond S. MacTavish, with Pennsylvania Registration Number M 200. 10. On or about March 19, 1993, at approximately 10:00 A.M., Plaintiff was traveling west on Trlndle Road, In Mechanlcsburg, Cumberland County, Pennsylvania, when she activated her turn signal and came to a stop to walt for oncoming traffic to pass before making a left turn. 2 r 11. On or about March 19, 1993, at approximately 10:00 A.M., Defendant's vehicle, was traveling west on Trlndle Road, In Mechanlcsburg, Cumberland County, Pennsylvania. 12. On or about March 19, 1993, at approximately 10 A.M., Defendant suddenly, and without warning, struck the rear of Plaintiffs vehicle. 13. As a direct and proximate result of the negligence of Defendants, Desmond S. MacTavish, David M. Myers, Sally Myers MacTavish, David M. Myers Funeral Home and Myers Furniture, Plaintiff, Lucreatla Perry, has suffered serious bodily Injury as set forth In full hereinafter. COUNT I LUCREATIA PERRY v. DESMOND S. MACTAVISH 14. The occurrence of the aforesaid events and the Injuries to Plaintiff, Lucreatla Perry, resulting therefrom were caused directly and proximately by the negligence of the Defendant. David M. Myers, either solely or In conjunction with the other named Defendants, Desmond S. MacTavish, Sally Myers MacTavish, David M. Myers Funeral Home and Myers Furniture, generally and more specifically as set forth below: (a) In failing to be reasonably vigilant to observe the vehicle In which the Plaintiff was driving; 3 (b) In failing to operate his vehicle at a speed that would allow him to apply his brakes and stop before striking the Plaintiffs' vehicle; (c) In failing to operate said vehicle at a speed In which he could stop within the assured clear distance, In violation of 75 Pa.C.S.A. 9 3361; (d) In failing to maintain proper and adequate observation of the traffic conditions then and there existing; (e) In failing to exercise reasonable care In the operation and control of his vehicle, and; (f) Furthermore, under the facts and circumstances presented herein, Defendant, Desmond S. MacTavish, had the last clear chance to avoid this collision, and In failing to do so, Defendant Is guilty of gross negligence. 15. As a result of the negligence of Defendant, Desmond S. MacTavish, Plaintiff has sustained severe InJuries, humiliation, embarrassment, and as a result thereof, he has suffered, and will continue to suffer In the future, pain and agony to her, great detriment and loss. 16. As a result of the negligence of Defendant, Desmond S. MacTavish, Plaintiff has been, and probably will In the future, hindered from attending to his usual occupation and dally duties to his great detriment, loss, humiliation and embarrassment. 4 17. As a result of the negligence of Defendant, Desmond S. MacTavish, Plaintiff has suffered a loss of life's pleasures, and probably will continue to suffer the same In the future to her great detriment and loss. 1 B. As a result of the negligence of the Defendant, Desmond S. MacTavish, Plaintiff has undergone great physical pain, discomfort, humiliation, and mental anguish, and he will continue to endure the same for an Indefinite period of time In the future, causing him great physical, emotional and financial detriment and loss. 19. Plaintiff believes, and therefore avers that his Injuries are permanent In nature. 20. As a result of the negligence of the Defendant, Desmond S. MacTavish, Plaintiff has been compelled, In order to effect a cure for the aforesaid Injuries, to expend large sums of money for medicine and medical attention. 21. As a result of the negligence of the Defendant, Desmond S. MacTavish, Plaintiff sustained a loss of wages and may continue to sustain such losses in the future. WHEREFORE, Plaintiff, Lucreatla Perry, seeks damages from Defendant, Desmond S. MacTavish , In an amount In excess of Thirty-Five Thousand Dollars ($35,000.00). 5 COUNT II LUCREATIA PERRY v. DAVID M. MYERS 22. Plaintiff, Lucreatla Perry, Incorporates by reference as part of this Count paragraphs 1 through 19 of this Complaint as If fully set forth. 23. The occurrence of the aforesaid events and the Injury resulting therefrom to Plaintiff, Lucreatla Perry, was caused directly and proximately by the negligence of Defendant, David M. Myers, solely and/or In conjunction with the other named Defendants, Desmond S. MacTavish, Sally Myers MacTavish, David M. Myers Funeral Home and Myers Furniture, generally and more specifically as set forth below: (a) In allowing Defendant, Desmond S. MacTavish, to operate said vehicle without being reasonably vigilant and observing the vehicle In which the Plaintiff was driving; (b) In allowing Defendant, Desmond S. MacTavish, to operate said vehicle at a speed which was unsafe and that would not allow him to apply his brakes and stop before striking the Plaintiffs' vehicle; (c) In allowing Defendant, Desmond S. MacTavish, to operate said vehicle at a speed that was not safe for existing conditions, in violation 75 Pa.C.S.A. 9 3361; and 6 (d) In allowing Defendant, Desmond S. MacTavish, to operate said vehicle without maintaining proper and adequate observation of the traffic conditions then and there existing. (e) In allowing Defendant, Desmond S. MacTavish, to operate said vehicle without exercising reasonable care In the operation and control of said 24. As a result of the negligence of Defendant, David M. Myers, Plaintiff has sustained severe Injuries, humiliation, embarrassment, and as a result thereof, he has suffered, and will continue to suffer In the future, pain and agony to her great detriment and loss. 25. As a result of the negligence of Defendant, David M. Myers, Plaintiff has been, and probably will in the future, hindered from attending to his usual occupation and daily duties to his great detriment, loss, humiliation and embarrassment. 26. As a result of the negligence of Defendant, David M. Myers, Plaintiff has suffered a loss of life's pleasures, and probably will continue to suffer the same In the future to her great detriment and loss. 27. As a result of the negligence of the Defendant, David M. Myers, Plaintiff has undergone great physical pain, discomfort. humiliation, and mental anguish, and he will continue to endure the same for an Indefinite period of time In the future, causing him great physical. emotional and financial detriment and loss. 28. Plaintiff believes, and therefore avers that his Injuries are permanent In nature. 7 \ \ 29. As a result of the negligence of the Defendant, David M. Myers, Plaintiff has been compelled, In order to effect a cure for the aforesaid Injuries, to expend large sums of money for medicine and medical attention. 30. As a result of the negligence of the Defendant, David M. Myers, Plaintiff sustained a loss of wages and may continue to sustain such losses In the future. WHEREFORE, Plaintiff, Lucreatla Perry,. seeks damages from Defendant, David M. Myers, In an amount In excess of Thirty-Five Thousand Dollars ($35,000.00). COUNT III LUCREATIA PERRY v. DAVID M. MYERS FUNERAL HOME 31. Plaintiff Incorporates 1 through 13 of this Complaint as If fully set forth. 32. At all times material hereto, Defendant, Desmond S. MacTavish, was an agent, servant and/or employee of Defendant, David M. Myers Funeral Home, and was acting In and upon the business of Defendant, David M. Myers Funeral Home, and while In the course and scope of his employment with said Defendant. 33. The occurrence of the aforesaid accident and the Injuries to Plaintiff resulting therefrom was caused dlrectiy and proximately by the negligence of Defendant, David M. Myers Funeral Homa. its agents, servants and/or employees, generally and more specifically as set forth below: 8 (a) In allowing Defendant, Desmond S. MacTavish, as its agent, servant and/or employee, to operate said vehicle without being reasonably vigilant and observing the vehicle In which the Plaintiff wa!\ driving; (b) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and/or employee, to operate said vehicle at a speed In which he could not apply his brakes and stop before striking the Plaintiffs' vehicle; (c) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and lor employee, to operate said vehicle at a speed In which he could not stop within the assured clear distance. In violation of 75 Pa.C.S.A. 93361; (d) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and/or employee, to operate said vehicle without maintaining proper and adequate observation of the traffic conditions then and there existing; (e) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and/or employee, to operate said vehicle without exercising reasonable care In the operation and control of said vehicle, and; 34. As a result of the negligence of Defendant, David M. Myers Funeral Home, Plaintiff has sustained severe InJuries, humiliation, embarrassment, and as a result thereof, he has suffered, and will continue to suffer In the future, pain and agony to her great detriment and loss, ., 9 35. As a result of the negligence of Defendant, David M. Myers Funeral Home, Plaintiff has been, and probably will In the future, hindered from attending to his usual occupation and daily duties to his great detriment, loss, humiliation and embarrassment. 36. As a result of the negligence of Defendant, David M. Myers Funeral Home, Plaintiff has suffered a loss of life's pleasures, and probably will continue to suffer the same in the future to her great detriment and loss. 38. As a result of the negligence of the Defendant, David M. Myers, Plaintiff has undergone great physical pain, discomfort, humiliation, and mental anguish, and he will continue to endure the same for an Indefinite period of time in the future, causing him great physical, emotional and financial detriment and loss. 39. Plaintiff believes, and therefore avers that his injuries are permanent In nature. 40. As a result of the negligence of the Defendant, David M. Myers Funeral Home, Plaintiff has been compelled, In order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention. 41. As a result of the negligence of the Defendant, David M. Myers Funeral Home, Plaintiff sustained a loss of wages and may continue to sustain such losses In the future. WHEREFORE, Plaintiff, Lucreatia Perry, seeks damages from Defendant, David M. Myers Funeral Home In the an amount In excess of Thirty-Five Thousand Dollars ($ 35,000.00), and demand a trial by jury. 10 COUNT IV LUCREATIA PERRY v. MYERS FURNITURE 42. Plaintiff Incorporates 1 through 13 of this Complaint as If fully set forth. 43. At all times material hereto, Defendant, Desmond S. MacTavish, was an agent, servant and/or employee of Defendant, Myers Furniture, and was acting In and upon the business of Defendant, Myers Furniture, and while In the course and scope of his employment with said Defendant. 44. The occurrence of the aforesaid accident and the injuries to Plaintiff resulting therefrom was caused directly and proximately by the negligence of Defendant, Myers Furniture, its agents, servants and/or employees, generally and more specifically as set forth below: (a) In allowing Defendant, Desmond S. MacTavish, as its agent, servant and/or employee, to operate said vehicle without being reasonably vigilant and observing the vehicle in which the Plaintiff was driving: (b) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and/or employee, to operate said vehicle at a speed in which he could not apply his brakes and stop before striking the Plaintiffs' vehicle; (c) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and lor employee, to operate said vehicle at a speed in which he could 11 not stop within the assured clear distance, In violation of 75 Pa.C.S.A. 93361; (d) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and/or employee, to operate said vehicle without maintaining proper and adequate observation of the traffic conditions then and there existing; (e) In allowing Defendant, Desmond S. MacTavish, as Its agent, servant and/or employee, to operate said vehicle without exercising reasonable care In the operation and control of said vehicle, and; 45. As a result of the negligence of Defendant, Myers Furniture, Plaintiff has sustained severe Injuries, humiliation, embarrassment, and as a result thereof, he has suffered, and will continue to suffer In the future, pain and agony to her great detriment and loss. 46. As a result of the negligence of Defendant, Myers Furniture, Plaintiff has been, , and probably will In the future, hindered from attending to his usual occupation and dally duties to his great detriment, loss, humiliation and embarrassment. 47. As a result of the negligence of Defendant, Myers Furniture, Plaintiff has suffered a loss of life's pleasures, and probably will continue to suffer the same in the future to her great detriment and loss. 48. As a result of the negligence of the Defendant, Myers Furniture, Plaintiff has undergone great physical pain, discomfort, humiliation, and mental anguish, and he will 12 continue to endure the same for an Indefinite period of time In the future, causing him great physical, emotional and financial detriment and loss. 49. Plaintiff believes, and therefore avers that his Injuries are permanent In nature. 50. As a resuit of the negligence of the Defendant,Myers Furniture, Plaintiff has been compelled, In order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention. 51. As a result of the negligence of the Defendant, Myers Furniture, Plaintiff sustained a loss of wages and may continue to sustain such losses in the future. WHEREFORE, Plaintiff, Lucreatla Perry, seeks damages from Defendant, Myers Furniture in the an amount In excess of Thirty-Five Thousand Dollars ($ 35,000.00), and demand a trial by jury. Respectfully submitted, HANDLER AND WIENER Date: 1/; S/f r By: Carolyn ..,n~r:squlre 1.0. No.t:#62636 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 (717) 238-2000 Attorney for Claimant 13 CERTIFICATE OF SERVICE AND NOW, this 29th day of February 1996, I hereby certify that I have, on this date, served the within Complaint by sending a true and correct copy of same to his attorney of record via first class United States mail, postage pre-paid and addressed as follows: David A. Fitzsimons, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 HANDLER AND WIENER 14 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 fc) CAROLYN M. ANNER, ESQUIRE, states that she is the attorney for the party filing the foregoing document; that she makes this affidavit as an attorney, because the party she represents lacks sufficient knowledge or information upon which to make a verification and/or because she has greater personal knowledge of the Information and belief than that of the party for whom she makes this affidavit; and that she has sufficient knowledge or Information and belief, based upon her investigation of the matters averred or denied in the foregoing document; and that this statement Is made subject to the penalties of 18 Pa e.s. ~4904 relating to unsworn falsification to authorities. Date: .,'7;/;; ?/J.f ~-;.."" ,".,"_ .'-'.....o",;,~. .',.0'; n 1,') 0 , l;"l ... .~, ~ -" '.:1 PI , i7! r,:: ." .. {~,) :"l!) i . uJ ~ f - "~1 I '"T:' ..., .- ~ -: r. ) ", r:? ')1\1 ..-;! Ul ~::, I'" -'. ... LUCREA TIA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v, : NO, 95-1316 Civil Term DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS : MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants : CIVIL ACTION. LAW : JURY TRIAL DEMANDED !'lOTICE TO PLEAD TO: Carolyn M. Anner, Esquire HANDLER AND wmNER 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 (Attorneys for PlaintifO You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. METTE, EVANS & WOODSIDE BY~\~ DAVID A. FITZSIMONS, ESQUIRE Sup. Ct. 1. D. #41722 3401 North Front Street P,O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - " Attorneys for Defendants DATED: 03/20/96 60976.\ . LUCREA TIA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 95-1316 Civil Term DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS : MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants : CIVIL ACTION. LAW : JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEfEND~S TO PlAINTIFF'S COMPLAINT AND NOW, come the Defendants, David M. Myers, Desmond S. MacTavish and Sally Myers MacTavish, his wife, David M. Myers Funeral Home and Myers Furniture ("Defendants"), by and through their attorneys METTE, EVANS & WOODSIDE, and makes the following preliminary objections. 1. Plaintiff Lucreatia Perry ("Plaintill") commenced this action by Writ dated March 13, 1995. 2. In response to Defendant's Rule to File Complaint, Plaintiff liled a Complaint against Defendants, 3. The Complaint alleges, inter nlia, that Plnintiffwas injured on March 19, 1993 when her vehicle was struck from behind by a vehicle operated by Defendant Desmond MacTavish. . , , MOTIQK.'J'O STRIKE( 4, The Complaint contains no allegations or counts against Sally Myers MacTavish and, accordingly, the action should be stricken as to her. WHEREFORE, Defendant requests that this Honorable Court dismiss Plaintill's Complaint as captioned against Sally Myers MacTavish. DEMURRERJPa R.C.P. 1028(8)(4)] 6. Pa, R.C.P 1019(a) requires a plaintiff to state the material facts on which a cause of action is based. 6. In Count II against Defendant David M. Myers, Plaintiff makes no material allegation other than Myers was the owner of the vehicle driven by Defendant Desmond S. MacTavish. 7. Plaintiffs have failed to allege material facts to state a cause of action for which the requested relief against Defendant David Myers can be granted. WHEREFORE, Defendant requests that this Honorable Court dismiss Count II of Plaintifrs Complaint. .2- DEMURRER [Pa. R.C.P. l028(a)(4)] OR, IN THE M-TEIlN{\TJVE. MOTIOl'i TO STRLKE-IPa. R.C.P. l028(aH3ll 8. Plaintiff alleges in Counts III and IV of her Complaint, respectively, that Defendant Desmond S. MacTavish was at the time of the accident in the course of his employment with Myers Funeral Home or Myers Furniture. 9. Plaintiffs Counts III and IV arc impermissibly inconsistent and do not represent appropriate alternative theories of recovery or may represent an inadvertent duplication of a single cause of action. WHEREFORE, Defendants request that this Honorable Court dismiss Counts 1II and IV of Plaintiffs' Complaint or, in the alternative, strike the repetitive Count. ""METrE, EVANS & WOODSIDE BY: ~~\\~ ----. DAVID A, FITZSIMONS, ESQUIRE Sup. Ct. LD. #41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendants DATED: 03/20/96 . , I CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U,S, mail, First-class postage prepaid, as follows: Carolyn M. Anner, Esquire HANDLER AND WIENER 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 METTE, EVANS & WOODSIDE B~~ DAVID A. FITZSIMONS, ESQUIRE Sup. Ct. LD. #41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 -::> DATED: 03/20/96 60976.1 Attorneys for Defendants , . ,"."'. I') <,II :.) I ! ,"1, ! :~. ':.lJ l,J) 1.') ,:! " { . [f ) I :,; .', .,. /, :-... :'.J ! " , , I , - " e1 .. .';4 1'.) ". LUCREATIA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. . . : CIVIL ACTION. LAW : JURY TRIAL DEMANDED DEFENDANTS' BRIEF IN SUPPORT C I. FACTUAL AND PROCEDURAL HISTORY Plaintiff, Lucreatla Perry, has filed this lawsuit against Defendants, David M. Myers, Desmond S, MacTavish, Sally Myers MacTavish, David M. Myers Funeral Home and Myers Furniture. Plaintiff commenced this action by filing a Praecipe for Writ of Summons, After being ruled to do so, Plaintiff filed the Complaint on or about February 29, 1996,1 On or about March 21, 1996, Defendants filed Preliminary Objections to Plaintiffs Complaint. 2 1 Plaintiff was represented by Handler and Weiner at the time she filed her Complaint. However, on or about April 9, 1996, Plaintiffs counsel was granted permission by the Court to withdraw from the representation. As far as counsel for Defendants Is aware, Plaintiff Is now proceeding pro sa. 2 Attached to Defendants' Preliminary Objections was a Notice to Plead requiring Plaintiff to file a written response to the Preliminary Objections within twenty (20) days. To-date, Plaintiff has failed to file any response to Defendants' Preliminary Objections. I, According to the Complaint, Plaintiff was Injured In an automobile accident which occurred on or about March 19, 1993, at approximately 10:00 a.m. Plaintiff alleges that her injuries occurred when the vehicle driven by Defendant, Desmond S. MacTavish, struck her vehicle In the rear, Specifically, the Complaint alleges that Plaintiff was traveling west on Trindle Road when she activated her turn signal and came to a stop to walt for oncoming traffic to pass before making a left turn. (S9 Complaint, ~1 0). Plaintiff alleges that before she could complete her left turn, the Defendant's vehicle rear-ended her car. Defendant now files this Brief In support of its Preliminary Objections to Plaintiffs Complaint. - 2 . '. II. STATEMENT OF QUESTIONS PR~SI;;NTEQ A. WITH REGARD TO THE LEGAL SUFFICIENCY OF THE COMPLAINT: 1. WHETHER p~rJFaCOMP AINSr/ DEFENDANT SALLY MYERS MACTAVISH ~ BE DISMISSED, WHERE PLAINTIFF PLAINT IS ENTIRELY DEVOID OF ANY COUNTS OR ALLEGATIONS OF NEGLIGENCE AGAINST SALLY MYERS MACTAVISH. ~ \buA-. \ Y\ ~ 'I(t- Suggested answer In the affirmative. 2. WHETHER COUNT II OF PLAINTIFF'S COMPLAINT MUST BE DISMISSED, WITH PREJUDICE, WHERE IT FAILS TO STATE ANY MATERIAL FACTS UPON WHICH A CAUSE OF ACTION / MAY BE BASED AGAINST DEFENDANT DAVID M. MYERS. V Suggested answer in the affirmative. L~ ~~ ~. ,rY- l^J.l.. 1- ~. '. III. ARGUMI;Nl A. Legallnsufflclency (Demurrer) - Introduction: "A preliminary objection in the nature of a demurrer is an assertion that a pleading does not set forth the cause of action or claim on which relief can be granted." Binswanoer v. Levy, 311 Pa. Super. 41, 43, 457 A.2d 103, 104 (1983)(citatlon omitted). Standards for a demurrer are well established. A demurrer to a Complaint must be granted where the court is certain that, as a matter of law, there can be no recovery upon the facts alleged. Wurth v. ~blladelphla, 136 Pa. Commw, 629, 584 A.2d 403 (1990). In determining a demurrer, all SUfficiently pleaded relevant facts and inferences fairly deducible therefrom must be accepted as true. J.Q. Conclusions of law, however, which are contained In the Complaint are not to be considered In reviewing a demurrer. Callsen v. Temcle University HoscUal, 539 Pa. 377, 652 A.2d 824 (1995), Here, even when the allegations of Plaintifrs Complaint are viewed In the light most favorable to Plaintiff, it is certain that as a matter of law, Plaintiff cannot prevail on her allegations against Defendant Sally Myers MacTavish and against David M. Myers. I. Plaintiffs Complaint Against Defendant Sally Myers MacTavish Must Be Dismissed Because the Complaint Is Entirely Devoid of Any Counts or Allegations of Negligence Against Sally Myers MacTavish. Plaintiff, in her Complaint, has Included Sally Myers MacTavish as a Defendant. However, Plaintifrs Complaint contains absolutely no allegations or counts against Sally - 4 - '. Myers MacTavish and, accordingly, Sally Myers MacTavish should be dismissed from this action. It Is well established under Pennsylvania law that If a Plaintiff sues multiple Defendants, the Complaint must plead the appropriate elements of negligence as to each Defendant, separately and Independently. 4 Stan. Pa. Prac. 923:28 at p. 350; Cummins v. Firestone Tire and Rubber Co., 344 Pa. Super, 9, 495 A.2d 963 (1985), Plaintiff's Complaint against Defendant Sally Myers MacTavish Is legally Insufficient because It contains no allegations of negligence on the part of Sally Myers MacTavish, nor does it contain any counts or theories of liability against Sally Myers MacTavish, Therefore, because Plaintiff has alleged no wrongful or negligent conduct on the part of Defendant Sally Myers MacTavish, this Court should dismiss Defendant Sally Myer MacTavish from this action. II. Count II of Plaintiffs Complaint Should Be Dismissed Because It Falls to State Any Material Facts Upon WhIch A Cause of Action May Be Based Against Defendant David M. Myers. In Count II of Plaintiff's Complaint, she alleges that Defendant David M, Myers Is liable for her Injuries solely because he was the owner of the vehicle driven by Defendant Desmond S. MacTavish. Pa, R.C.P, 1 019(a) requires a plaintiff to state the . material facts on which a cause of action Is based, Count II of Plaintiffs Complaint, however, contains no facts, material or otherwise, to support a theory of liability against Defendant David M, Myers, .5. , The basic elements of a cause of action founded upon negligence are: 1. A duty or obligation recognized by the law requiring defendant to conform to a certain standard of conduct for the protection of others agalr:st unreasonable risks; 2, The defendant's failure to conform to the standard required; 3, A reasonably close causal connection between the conduct and the resulting Injury; and 4. Actual loss or damage resulting to the plaintiff. d 4 Stan. Pa. Prac. 923:19, at p. 341; Casey v. Geiqer, 346 Pa, Super, 279, 499 A.2d 606 (1985). Count II of Plaintiffs Complaint against Defendant David M. Myers is insufficient as a matter of law because It falls to allege that David M. Myers owed a duty of care to Plaintiff, It Is a fundamental rule of tort law that a negligence claim must fall If It is based on circumstances for which the law imposes no duty of care on Defendant. 4 Stan, Pa. Prac, 923:20, at p. 341; Linde Enterorises. Inc. v. Hazelton City Authorit!, 412 Pa. Super. 67, 602 A.2d 897 (1992). As noted, Count II of Plaintiffs Complaint makes no material allegation other than that Defendant David M, Myers was the owner of the vehicle driven by Defendant Desmond S. Ma.cTavlsh, Thus, Count II of Plaintiffs Complaint Is legally Insufficient because it fails to allege that Defendant David M. Myers breached some duty of care owed to Plaintiff. - 6 - . According to the Pennsylvania Supreme Court: A duty, In any given situation, Is predicated on the relationship existing between the parties at the relevant time, Dumanskl v. City oLErle, 348 Pa. 505, 34 A,2d 508 (1943); and necessarily requires some degree of knowledge. Porreca v, Atlaptic Refining Company, 403 Pa, 171, 168 A.2d 564 (1961), ~ W, a.r.adAhaw v. Rawlin9s, 612 F.2d 135, 138 (3rd Cir, 1979) cerl. denied, 446 U.S. 909, 100 S. Ct. 1836, 64 L.Ed.2d 261 (1980) (negligence claim must fail if based on circumstances for which law Imposes no duty of care on defendant); Boyce v. United States StlUll Corp., 446 Pa. 226, 285 A.2d 459, 461 (1971) (no negligence claim can be based upon facts on which law does not Impose duty on defendant In favor of plaintiff). , I Plaintiff has failed to allege any material facts which would establish that Defendant David M. Myers owed a duty of care to Plaintiff, Defendant David M. Myers' ij , status as the owner of the vehicle which was Involved in the alleged accident, absent .., more, does not give rise to any legally cognizable duty of care owed to Plaintiff. Therefore, Count II of Plaintiffs Complaint against Defendant David M, Myers should be dismissed. - 7 . ~' " . . IV. CONCLUSION For all the foregoing reasons, Defendants respectfully request this Court to Issue an Order dismissing Count II of Plaintiffs Complaint against Defendant David M, Myers and dismissing Plaintiffs Complaint against Defendant Sally Myers MacTavish. Respectfully submitted, METTE, EVANS & WOODSIDE BY: D~O'NSI ESQUIRE Sup. Ct.I.D, #41722 ANTHONY T. LUCIDO, ESQUIRE Sup, Ct. I,D, #76563 3401 North Front Street P.O, Box 5950 Harrisburg, PA 17110-0950 (717) 232.5000 Attorneys for Defendants DATED: 5/17/96 66536-1 . CERTIFICATE OF SI;R.Y.ICE I hereby certify that I served a copy of the foregoing document upon the person(s) and In the manner Indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U,S. mail, First-class postage prepaid, as well as a copy via Certified Mail- Return Receipt Requested addressed as follows: Lucreatia Perry 2648 Lexington Street Harrisburg, PA 17110 METTE, EVANS & WOODSIDE BY: ~' DAVID A. FITZSIMONS, ESQUIRE Sup. Ct. 1.0. #41722 ANTHONY T, LUCIDO, ESQUIRE Sup. Ct. I.D, #76583 3401 North Front Street P.O. Box 5950 Harril[lburg, PA 17110-0950 (717) 232-5000 DATED: 5/17/96 66536-1 Attorneys for Defendants LUCREATIA PERRY, (Plaintim " , 1 .., L , : ; , ( I " , " .;-; , ; ,; , .j,) L" , '\ ~i . , ) ) , - n " -' .. I :.,) . , "'. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submilled in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. -------------------------------.-.--------.-------------------------.-.--------------------------------------------- CAPTION OF CASE (enUre capUon must be stated In fu\\) VS. DAVID M, MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, (Defendants) Ne, 95-1316 Civil Term 19_ 1, Slate maller to be argued (Le" plaintif1's metion fer new trial, defendant's demurrer to cemplalnt, ele.): Defendant's Preliminary Objectiens 2, Identify ceunsel whe will argue case: (a) for Plaintiff: Carolyn M, Anner, Esquire Address: HANDLER AND WIENER 319 Market Street P.O. Box 1177 Harrisburg, P A 17108 (b) for Defendant: David A. Fitzsimons, Esquire Address: METI'E, EVANS & WOODSIDE 3401 North Front Street P,O. Box 5950 Harrisburg, PA 17110.0950 3, I wl11 nellfy all parties in writing within two days that this case has been listed fer argument. 4, Argument Court Date: AprlU7, 1996 '~~~~~;M~~ Allerney for Defendant I i i i i , I d " i Dated: 03128/96 0\7S\.\ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY; Pleose list the within moUer fer the next Arb'llment Court. .---.--.-.------..--..---.-----...---...--------..-.-...............----........--.-...--..-........---------------- , CAPTION OF CASE I, ., (ontlro coptlon must bo stated In fulll , ,) , , !-: 1 LUCREATIA PERRY, .,1 ,::.' {PloinUm ' , , iil vs. .. c: DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, (Defendants) Ne. 95-1316 Civil Term 19_ 1, Slate matter to be argued (i.e., plainUfi's moUon for now trial, defondant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2, Idontify counsel who will arguo cose: (a) for Plaintiff: Unrepresented Address: (b) for Defendant: David A, Fitzsimons, Esquire Address: METTE, EVANS & WOODSIDE 3401 North Front Street P,O. Box 5950 Harrisburg, PA 17110-0950 3. I wlll notify all parties in writing within two days that this cose hos been listed for argument. 4. Argumont Ceurt Dat.c: May 29, 1996 , " \~ \\).~. Attorney fer Defendant - --- Doted: 4/16/96 61781.1 . [;: '" .~ ,~ C'? r:: :i ,.- " LU0 .. t'1 -') ... - u-.' - R3'. f,I ~.... :.::: '..):~~ --!t ~~: 0- 'l ;:1 ~ r;'. 0:' :,-; (ri '1 to:. ft'!: . l;;'" :> ' .'--. T 'i~li;J 1-' Cl II. :,: :!!U- tn ..,~ 0 ::) 0\ u 4 ~ I. ~ ~ t; ~~ w .. '" 0- 0 III 0\ E ~ ... 0- 0\ ~ a z 0\ 0 - '" ~ .. Q f ... 0 '" ~ ~ ., :> ci ., ,s '" .. 0 0: it cO ~ z ~ ~ .. 0 % PI Q ~ . . J .. Nf1V 1 9 199'~. tf . .' , LUCREATIA PERRY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW DESMOND S. MACTAVISH, DAVID NO, 95-1316 M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of , 1996, Defendants' Motion for Judgment of Non Pros is hereby GRANTED and it is ORDERED that Plaintifrs case be J, dismissed with prejudice, By the Court: II , ~_ J2,v1(~. A.(h~JL ~ vJ()A)J tMJ+- ~ ~ \vu,~ 1'~ l?--t t IA/-L 7" ~~ jY\2 J2f7 -Jr &/ Cl ilL{jl-'\ ywv / ( ') ///A l W/fvv( J l J r)1)' ~ LO, r q q"J., , V;~.N/\1^~:'~:\:::d II' .,' f \ ~~ f:"'" ~ " ". ""'1) .."', :1,.,1'. 1(; :11 ;: tt ,; livli ~. ~I ^Hdl,\~;i,.',., ., J 38L1~'J-Uii:J .' .-----...-- ,~ _.-.;:,......_~-'.-...-....... '~~ '0 I LUeREATIA PERRY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1316 vs. DESMOND S. MACTAVISH, DAVID M, MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED MOTION FOR JUDGMENT OF NON PROS AND NOW, come Defendants, Desmond S. MacTavish, David M. Myers Funeral Home and Myers Furniture, by and through their attorneys, Thomas, Thomas & Hafer, and requests this Court to grant his Motion for Judgment of Non Pros, In support of his Motion, Defendants aver as follows: 1. On February 29, 1996, Plaintiff filed a Complaint in the above matter. 2. On November 20, 1996, Defendants filed Preliminary Objections to Plaintiffs Complaint. 3, On March 28, 1996, Defendants' Preliminary Objections were listed for Argument April 17, 1996. 4. On March 29, 1996, Plaintiffs counsel filed a Petition for Leave to Withdraw her representation of Plaintiff. On April 9, 1996, this Honorable Court granted Petition. 5. On April 18, 1996, Defendants' Preliminary Objections were re-listed for May 29, 1996, 6. On May 17, 1996, Defendants served their Brief in Support of Preliminary Objections on Plaintiff via first class and certified mall at her last known address of 2648 Lexington Street, Harrisburg, PA 17110. Both envelopes were returned marked "forwarding order expired" and "moved, left no address." A copy of said envelopes are attached hereto as Exhibit "A." 7. On June 7, 1996, this Honorable Court sustained the Preliminary Objections of Defendants, thereby dismissing the counts in Plaintiffs Complaint against Defendants Sally Myers Mactavish and David M. Myers. 8. On July 16, 1996, Defendants filed and served on Plaintiff via first class and certified mail an Answer and New Matter to the Complaint. The certified mail envelope was returned and marked "forwarding order expired," See a copy attached hereto as Exhibit "B," The whereabouts of the first class mail envelope is unknown. 9. On October 3D, 1996, Defendants served upon Plaintiff via certified mail a 10 day default notice. The envelope was retumed marked "forwarding order expired." See a copy attached hereto as Exhibit "C." WHEREFORE. Defendants. Desmond S. MacTavish. David M. Myers Funeral Home and Myers Furniture. respectfully requests this Honorable Court to enter an order granting its Motion for Judgment of Non Pros and dismissing this case with prejudice. Respectfully submitted. THOMAS, THOMAS & HAFER By: V. ~ _-.-9 Brooks R. Foland, Esq. I.D, No. 70102 305 North Front Street Sixth Floor POB 999 Harrisburg. PA 17108-0999 (717) 255-7626 Attorneys for Defendants 3 Exhibit A i",,;::i,':'~~'~,r.'7,': ~,,~'~:~;'i; ~~~j.;":" .,. ,.._.....,l,tjo>,..?f..t '''' .t)~f\,..\...I. " :.".;~,.:.":g"i'::,'~:f:~(:.,,::'.; ',","'" ' , ' ,:, .., . '.' " ., liltI.l~~i\.iJ~~~~!i'h"'Y...:~,~1i..!'~'L'l'~~.\i!;"'i;'v~'U~"I:;i~)fi,\I~,)j;Y ',. :"~r~~~~'.il),\~t(.~'..tJ.1{~~""~1 ~~~~\S~~.li'i(';'f,tlf,1'!iCMl,~W"'llttlC~.~.".~"~\(~~,..;~}~f~J:~'l1'I('r':1.~rM :r~'t;,,",~~~n~~~J~'f~.J't:,~t;~. . .._~..._-. .-~"... 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Z <II .. . 0 ii ~ 0 . . . . ~ . n : ~ . ~ . .. Exhibit B ~ .. ,.., U'':'','''':~!..!! ,l1i" ;ii':'. ',.,. " ,I" !it.:: ....' - .- eu :! o tn eu - o ",-..-- 'I~ 'f ~; ~[~I l-" . -, ' " : ". \'!~' ':'j.. ~ .. , , .... I!! .- u. Iii!! ,.~E ffi~:: .....u <~P: __ ~~~ u.,'" 3 ~ ~ "-,. '.f;,.......~ --'i , ..", .,-,." ,I.... "'J.'I It'/; '::/: h., ,/,' -.;......'. ' ..~..~' .t' .. . m .. .... " " .. J1l .... N ':'.f,) i".~'''.. .,/1.' r-.l...J._~ . ,-,,' ,f' . ~.'.' . q II 0" (........, ..~ .,' AI ~' '~ ,'- teal IlqWao IllDCWJO.:fSd X I' (1~'1IOH"tJPIJV}:'N'Ql\.Clrs'D 1 iJ (P/Odf/H/PW I j ""'-'oWoI"._.,__" ~_NI"",,)~.""''''~'' l1: if IJoAnI(J '" 'l . m ~ l OCXlC 0 .._""~~ 0 = ~ I -1,;;1 .......--.0 OIlLI VdDllnOS/HUVII ~ ~::;: E f ""'''0:> J'I. poJ"IjGo~ 0 ~9911~S NO~ONIX91 8t9t I < Id.(i_ .Qt AlI1I9,1 VILV911:lnl o 0 ~ I Eb ~ ~ '.......,""". 'C ~- ~ 0 ..1= " """'l'_ood""""O_ . OIl "'_!l> f.!_ J t,..._........._u 0"' '"....pw~.....~N~Ol.........,.."~IIU.. II- ~ < a\ -. 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I" h' r:; a1 ...-..... ;:: , .-"'t ... ~ \;. i ,.., .. '> - /f.:- ~ ~ !~:". 0, \',\~ ~' ". ,. '"~''' 7]/ .---' Eo! Me ~~ :><Ulri glZ~ ~ M~~ Pd!l ....ZCl ...Hf5 ~t::f:i1Il ..:IUl H t:l~gj ..:IN!ii UI :r "" oC IT! or ... ~ ~ 9 I;j tb~ '" ~ i= ~ .. ... '" 0: ~ ... 0 ~ ~ ~ z 0 0 -' >< Ii 0: .. 0 Q :,... .. ~ III 0: " ~ E ~ 0 III ... iii .. '" 0: it " 0 0: . ::: z ~ ~~ ~ ~ Q ~ . / CERTIFICATE OF SERVICE ., AND NOW, this day of , 199_, I, Coleen M, Hartman, of the law finn of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Lucreatia Perry 2648 Lexington Street Harrisburg, PA 17110 Coleen M. Hartman ;;: en t> '\} : IHr'! .. i "- -,- CI..- I I 1': ! i..; , , 16/,i .....'. ~ n 1" ~l " .;; ~I;' ~'" , I ,I;;; ltl' . ro.; , I l' n.; " " - 1.1, , .rJ ',:.) c,J '.1 :, ll: W Z W Il 0 ~ ~ - ~ w " " C ~ " - 0 '" - . N U - . . ;; Z ~ . ~ ~ " 0 <t ~ g g - J J: '. h j ll: o . _ m a.: .. " W - .- -J 1'1 ~ 0 % Z <t J: ..' .... . '\., ., tcll'l'nIO~ ~SI~to<1'01~O~~UW2W:) )N":)UId... , ,,"l "J q trl9aff' " '. . .... " " . . J \ ~ ~ l;) -s. ~ .] j . . v. I Plaintiff I I I I I I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LUCREATIA PERRY, DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, NO. 95-1316 I I Defendantsl JURY TRIAL DEMANDED AND NOW, this Cf~ ORDER day of ~ ,19~, upon consideration of the verified Petition of Plaintiff's Counsel For Leave to Withdraw, it is hereby ORDERED and DECREED that said petition is GRANTED and that Petitioner, carolyn M. Anner, Esquire, be permitted to withdraw her appearance of record \ \ ~ J. in the above matter. ) (. " " 1'1' '/ '\"!.,,---:,,.,,,.,... '''lr' ; , .. . , ,- , . . LUCREATIA PERRY, : Plaintiff : : : : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. DAVID M. MYERS, DESMOND NO. 95-1316 S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FlIRNITURE, : Defendants: JURY TRIAL DEMANDED PETITION OF PLAINTIFF'S COUNSEL FOR LEAVE TO WITHDRAW The petition of Carolyn M. Anner, Esquire, respectfully represents: 1, The action arose out of a motor vehicle collision occurring on March 19, 1993 and petitioner was shortly thereafter retained by Plaintiff to repreeent her in the matter. 2. On February 29, 1996, after consultation with the Plaintiff, petitioner filed a Complaint on Plaintiff's behalf. 3. It has, however, come to the attention of petitioner that Plaintiff is uncooperative regarding her repreeentation. As a result, it has become extremely difficult to render effective an professional represention. 4. Therefore, petitioner's continued represenation of Plaintiff has been precluded and prohibited by Rule 1.16 of the Pennsylvania Rules of professional Conduct and good cause exists for Petitioner's withdrawal of appearance in this case and termination of represenation of Plaintiff. '. " J, , . WHEREFORE, Petitioner requests that this Court grant Petitioner leave to withdraw her appearance and terminate representation of Plaintiff in this action. Respectfully submitted, Date: :ht(tff.; f By: ENER , Esquire 62636 319 Ma et Street P , 0 . Box 11 77 Harrisburg, PA 17108 (717) 238-2000 Petitioner and Attorney for Plaintiff . ... ~"",'"......,~_. t ....~...-..,.. ~ - ,. ,~_.. " ." '. " CERTIFICATE OF SERVICE AND NOW, this 29th day of March, 1996, I hereby certify that I have, on this date, served the Petition for Leave to Withdraw upon the Defendants by sending a true and correct copy of same to their attorney of record via first class United States mail, poatage prepaid and addressed as follows: David A. Fitzsimons, Esq. METTE, EVANS & WOODSIDE P.O. Bolt 5950 Harrisburg, PA 17110-0950 HANDLER AND WIENER , ... \ LUCREATIA PERRY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA i ; v. . , : NO. 95-1316 Civil Term DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants . . : CIVIL ACTION - LAW : JURY TRIAL DEMANDED TO THE PROTHONOTARY: PLEASE WITHDRAW our appearance on behalf of all Defendants in the above- captioned action, , " ", ~\ l\ \ --- \J <':0--., ----:::> DATED: JUL - 3 19Sr; \ ..""- DAVID A. FITZSIMONS, ESQUIRE Supreme Court I. 0, #41722 METTE, EVANS & WOODSIDE 3401 North Front Street Harrisburg, PA 17110-0950 (717) 232-5000 PLEASE ENTER our appearance on behalf of Defendants in the above- captioned action. DATED: -;I"(I(~ ~~C? JAMES K. THOMAS, II, ESQUIRE Supreme Court I,D. #15613 THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237.7100 - " \. CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) and In the manner Indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same In the U.S. mail, First-class postage prepaid, addressed as follows: LucreaUa Perry 2648 Lexington Street Harrisburg, PA 17110 METTE, EVANS & WOODSIDE '-., BY:'~~~h~~ ~ DAVID A. FITZSIMONS, ESQUIRE Supreme Court 1.0. 1141722 3401 North Front Street P.O, Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: 1/S)1(o 70<499-1 Attorneys for Defendants ., '-. 0 ,t> !?, C tH "11','-' ~--. -f 'r ~~!~"~- 1-":; ii:r1 ~.. I I n~ C'i ,<> ., "'"'1-.- " "-'1 :J:fj ." -n ,'. ~. ., l.~; t" '.?C) ~:;: Co'? ,~jrn '.1 :.", r- .. ~.q .. ():l -', ;..... <.:" --- .--- - -;- ......-.~...:'" .-..-.....-,.... .~ ~ -' L:: .:J ,1.;., r;, ~;I t':( ~~) .',.)ry C' .,- I.,) :.' ~r~: i:i~ -- .-~::J I'i' ro' ~.' U1 \'." ll. - ;,::.! fi:'} ! "..1 \!'l(,1 "" _J i~1 0.- -, \1. lO , 0 0' D " ~ ~ t; ~ 9 ... CD ~ a: 0 i t; .. is "a !Z .. ! .. !l. !il " ",' .. 0 a: ~ E :I: CD :J l< d CD Ul ,s 0 0: ir .. ~ z a: OIl .. ~ 0 :I: ... ~ " . . . , "I . ii .' . . LUCREATIA PERRY, IN THE COURT or COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS, CIVIL ACTION - LAW DESMOND S. MACTAVISH, DAVID NO. 95-1316 M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plc.1d to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default jUdgment may be entered against you, THOMAS, TlIOMAS & HAFER /(7.... /' 2 By: lI.f~ ~ Brooks R. Foland, Esquire 1.0. No. 70102 305 North Front Street Sixth Floor POD 999 Harrisburg, PA 17108-0999 (717) 255-7626 Attorneys for Defendants ..~-~- .... , , . . ...,.,.,. ',~. - '..'.' - " .' , ~ . LUCREATIA PERRY, Plaintiff vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO, 95-1316 DESMOND S. MACTAVISH, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED ANSWER AND NEW MATTER AND NOW come Defendants, Desmond S, MacTavish, David M. Myers Funeral Home and Myers Fumiture, by and through their cOllnsel, Thomas, Thomas & Hafer, and files lI~e following Answer and New Maller to Plaintifrs Complaint as follows: 1. Denied. After reasonable investigation, Answering Defendants are withollt information sufficient to form a belief as to the truth or falsity of the averments in this paragraph, and, therefore, deny the same and demand strict proof thereof at the time of trial. 2. Admilled based upon information and belief. 3. Admilled based upon information and belief. 4. Admilled based upon information and belief. 5. Admitted based upon information and belief. 6. Ad milled based upon information and belief, . 7. Denied. Aftcr reasonablc Investigation, Answering Defendants are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph, and, therefore, deny the same and demand strict proof thereof at the time of trial. 8. It is admitted only that on or about March 19, 1993, Defendant, Desmond S. MacTavish, was the operator of the 1979 Lincoln owned by David M. Myers. Any and all other allegations contained in paragraph 8 are specifically denied and strict proof thereof is demanded at time of trial. 9. It is admitted only that the 1979 Lincoln operated by Desmond S. MacTavish was owned by David H. Myers. Any and all other allegations contained in paragmph 9 are specifically denied and strict proof thereof is demanded at time of trial, 10. Denied. After reasonable investigation, Answering Defendants are without information sufficient to form a belief as to the truth or falsity of the averments in this paragmph, and, therefore, deny the same and demand strict proof thereof at the time of trial. To the extent that an answer is deemed to be required, it is specifically denied that Plaintiff activated her tum signal and came to a complele stop before the alleged incident on or about March 19, 1993. 11. Admitted based upon information and belief. 12. Denied. It is specifically denied that Dcfendant Desmond S, MacTavish suddenly and without waming struck the rear of Plalntifrs vehicle. Any and all other allegations 2 contained in paragraph 12 are also specifically denied and strict proof thereof is demanded at time of trial. 13. The averments contained in paragraph 13 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny each and every allegation of ncgllgence and deny that the aforesaid accident and injuries allegedly suffered by Plaintiff were caused by any negligence on the part of Answering Defendants. COUNT I LI/creatia Perry v. Desmol/d S. MacTal'isll 14. The averments in paragraph 14 constitute conclusions of law to which no response is required. In the event a response is deemed to be required. Answcring Defendants deny that they or Defendant Desmond S, MacTavish were negligent and deny the following acts and omissions alleged by the Plaintiff: a. Failing to be reasonably vigilant to observe the vehicle in which the Plaintiff was driving; b. Failing to operate his vehicle at a speed thai would allow him to apply his brakes and stop before striking the Plaintiff's vehicle; c. Failing to operate said vehicle at a speed in which he could SlOp within the assured cleared distance, in violation of 75 Pa.C.S,A. ~ 3361; 3 d. Failing to maintain proper and adequate observation of the traffic conditions then and there existing; e. Failing to exercise reasonable care in the operation and control of his vehicle; and f. Under the facls and circumstances presented herein, Defendant, Desmond S, MacTavish, had the last clear chance to avoid this collision, and in failing to do so, Defendant is guilty of gross negligence. 15. The averments contained in paragraph 15 constitute conclusions of law to which no response is required. In lhe evenl a response is deemed to be required, Answering Defendanls deny lhatthey were negligent and deny lhat Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate resull of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand slrict proof thereof at the time of trial. 16. The avermenls contained in paragraph 16 constitute conclusions of law to which no response is required. In lhe event a response is deemed to be required, Answering Defendants deny that they were negligent and deny thai Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direcl and proximate resull of any negligence on the part of Answering Defendants, As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the ti me of trial. 4 "~"'"'''''~_ ~w'._'~-;,''''-', . 17. The averments contained in paragraph 17 constitute conclusions of law to which no response Is required. In the event a response Is deemed to be required, Answering Defendants deny that they or Defendant Des'mond S. MacTavish were negligent and deny that Plalntlff, Lucrcatla Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of triai. 18. The averments contained in paragraph 18 constitute conclusions of law to which no response is required. In the event a response Is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatla Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial, 19. Denied. After reasonable Investigation, Answering Defendants are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof thereof at the time of trial. 20. The averments contained In paragraph 20 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering 5 Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 21. The averments contained in paragraph 21 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering .J Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. WHEREFORE, Answering Defendants, Desmond S. MacTavish, David M. Myers Funeral Home and Myers Furniture, respectfully request this Court to dismiss Plaintiff's.. Complaint. COUNT II Lllcrealia Perry v. DaI'itI M. Myers 22. Answering Defendants incorporate paragraphs 1 through 21 of this Answer as slated above as if fully set forth herein. 23.-30. No answer is required for these paragraphs as the Court, by Order dated June 7, 1996, dismissed all counts In the Complaint against David M. Myers and Sally Myers MacTavish. 6 WHEREFORE, Answering Defendants, Desmond S. MacTavish. David M. Myers Funeral Home and Myers Furniture. respectfully request this Court to dismiss Plaintifrs Complaint and that judgment be entered In favor of Answering Defendants. COUNT III LI/creatia Perry v. David M. Myers FI/Ilera/ /Iome 31. Answering Defendants incorporate paragraphs I through 30 of this Answer as stated above as if fully set forth herein. 32. The averments cont.1ined in paragraph 32 constitute conclusions of law to which no response is required. 33. The averments contained in paragraph 33 constitute conclusions of law to which no response is required. In the event a response is deemed to be required. Answering Defendants deny that they were negligent and deny the following acts and omissions alleged by the Plaintiff: a. Allowing Defendant, Desmond S. MacTavish, as its agent. servant and/or employee to operate said vehicle without being reasonably vigilant in observing the vehicle in which Plaintiff was driving; b. Allowing Defendant. Desmond S. MacTavish, as its agent, servant and/or employee to operate said vehicle at a speed at which he could not apply his brakes and stop before striking the Plaintiff's vehicle; 7 c. Allowing Dcfendant, Desmond S. MacTavish, as its agent, servant and/or employec, to operatc said vchiclc at a speed at which hc could not stop within the assured clcar distance, in violation of 75 Pa,C.S.A. ~ 3361; d. Allowing Defcndant, Dcsmond S. MacTavish, as its agcnt, servant and/or cmployee, to operate said vehicle without maintaining propcr and adequate observation of the traffic conditions then and there existing; and e. Allowing Defendant, Dcsmond S. MacTavish, as its agent, scrvant and/or employce, to operate said vchicle without exercising reasonable care in the operation and control of said vchicle. 34. The avcrments contained in paragraph 34 constitutc conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny that they were ncgligcnt and deny that Plaintiff, Lucreatia Pcrry, suffcred any injuries or damages as a direct and proximate result of any negllgencc on the part of Answering Defendants. As such, Answcring Defcndants deny the avcrmcnts of this paragraph and demand strict proof thercof at the time of trial. 35. The averments contained in paragraph 35 constitute conclusions of law to which no response is required. In the event a response is deemed to bc required, Answcring Defendants deny that they werc negligent and deny that Plaintiff, LUCrc.1tia Pcrry, suffered any injurics or damages as a direct and proximate result of any negligence on the part of Answering 8 Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 36. The averments contained in paragraph 36 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny that they or Defendant Desmond S. MacTavish were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 38. The averments contained in paragraph 38 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 39. Denied. After reasonable investigation, Answering Defendants are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof thereof at the time of trial. 40. The averments contained in paragraph 40 constitute conclusions of law to which no response is required. fn the event a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any 9 injuries or damages as a dircct and proximate result of any ncgligence on the part of Answering Defendants. As such, Answering Defendants deny the avermcnts of this paragraph and demand strict proof thereof at the time of trial. 41. The averments contained in paragraph 41 constitute conclusions of law to which no response is required. [n the event a response is deemcd to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the avermcnts of this paragraph and demand strict proof thereof at the time of trial. WHEREFORE, Answering Defendants, Desmond S. MacTavish, David M, Myers Funeral Home and Myers Furniture, respectfully rcqucst this Court to dismiss Plaintifrs Complaint and that judgment be entered in favor of Answering Defendants. COUNT IV Lllcrealia Perry v. Myers FIll'llillll'e 42. Answering Defendants incorporate paragraphs 1 through 41 of this Answer as stated above as if fully set forth herein. 43. The averments contained in paragraph 43 constitute conclusions of law 10 which no response is required. 44. The averments conlained in paragraph 44 constitute conclusions of law to which no response is required. [n the event a response is deem cd to bc rcquired, Answering 10 _'" 't ,.,._A . ',. \,,__ _~_. ..-.~..." .,".,.;."~-~""'.""" ',""';"'~ Defendants deny that they were negligent and deny the following acts and omissions alleged by the Plaintiff: a. Allowing Defendant, Dcsmond S. MacTavish, as its agent, servant and/or employee, to operate said vehicle without being reasonably vigilant in Observing the vehicle in which the Plaintirr was driving; b. Allowing Defendant, Desmond S. MacTavish, as its agent, servant and/or employee to operate said vehicle at a speed at which he could not apply his brakes and stop before striking the Plaintiff's vehicle; c. Allowing Defendant, Desmond S. MacTavish, as its agent, servant and/or employee, to operate said vehicle at a speed at which he could not stop within the assured clear distance, in violation of 75 Pa.C.S.A. ~ 3361; d. Allowing Defendant, Desmond S. MacTavish, as its agent, servant and/or employee, to operate said vehicle without maintaining proper and adequate observation of the traffic conditions then and there existing; and e. Allowing Defendant, Desmond S, MacTavish, as its agent, servant and/or employee, to operate said vehicle without exercising reasonable care in the operation and control of said vehicle, 45. The averments contained in paragraph 45 constitute conclusions of law to which no response is required. In the evcnt a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, LlIcreatia Perry, suffered any II injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 46. The averments contained in paragraph 46 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatla Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 47. The averments contained in paragraph 47 constitute conclusions of law to which no response is required. In the event a response is deemed to be rcquired, Answering Defendants deny that they or Defendant Desmond S. MacTavish were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 48. The averments contained in paragraph 48 constitute conclusions of law to which no response is required. fn the event a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering 49. Denied. After reasonable investigation, Answering Defendants are without Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. information surticient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof thereof at the time of trial. 50. The averments contained in paragraph 50 constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatia Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the time of trial. 51. The averments contained in paragraph 51 constitute conclusions of law to which no response is required. In the event a response Is deemed to be required, Answering Defendants deny that they were negligent and deny that Plaintiff, Lucreatla Perry, suffered any injuries or damages as a direct and proximate result of any negligence on the part of Answering Defendants. As such, Answering Defendants deny the averments of this paragraph and demand strict proof thereof at the ti me of trial. WHEREFORE, Answering Defendants, Desmond S. MacTavish, David M. Myers Funeral Home and Myers Furniture, respectfu1\y requcst this COllrt to dismiss Plaintifrs. Complaint and that judgment be entered in favor of Answering Defendants. 13 .' , . , I I I i NEW MA TIER 52. Some or all of Plalntifrs claims may be barred by the applicable statute of limitations. 53. Some or all of Plaintifrs claims may be barred or reduced by Plaintifrs comparative and/or contributory negligence. 54. Some or all of Plaintifrs claims may be barred or reduced by Plaintifrs assumption of a known risk. 55. Plaintifrs injuries and damages, if any, were not caused by any acts, omissions, or breaches of duty of Answering Defendants that were caused in whole or in part by the negligence or faull or want of care of persons other than Answering Defendants. 56. Plaintiff has failed to state a cause of claim upon which relief can be granted. 57. On or about March 19, 1993, Defendant, Desmond S, MacTavish, was traveling west on Trindle Road in a 1979 Lincoln. 58. As Defendant, Defendant. Desmond S. MacTavish, was traveling west bound on Trindle Road on or about March 19, 1993, the automobile driven by Plaintiff. Lucreatia Perry, stopped suddenly, forcing Defendant, Desmond S. MacTavish, to apply his brakes. 59. Just before Defendant, Desmond S. MacTavish, brought his vehicle to a complete stop, Plaintiff, Lucreatia Perry. pulled her automobile forward approximately 6to 12 inches and slammed on the brakes, causing her vehicle to buck violently, 14 . . .. I 60. At the time of the incident, the two automobiles never came into contact with one another. 61. Officer Sidney Deyo of the Hampden Township Police Department came to the scene, examined the vehicles, and reported that there was no evidence of any impact, WHEREFORE, Answering Defendants, Desmond S. MacTavish, David M. Myers Funeral Home and Myers Furniture, respectfully request this Court to dismiss Plaintifrs Complaint and that judgment be entered in favor of Answering Defendants. Respectfully submitted, "9~ Brooks R. Foland, Esq. 1.0. No. 70102 305 North Front Street Sixth Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 Attorneys for Defendants 'i, 15 . . . . VERIFICATION The undersigned, having read the attached Answer and New Matter, hereby verifies that the attached pleading is based on information which has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel. Furthermore, the matters contained in this pleading are of a procedural nature only among counsel and the court, The undersigned verifies that he has read the attached pleading and that it is true and correct to the best of his information and belief. This Verification is made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. ~ool. (L< ~ Brooks R. Foland, Esquire .' . f. .. , .. ., CERTIFICATE OF SERVICE AND NOW, this 1(, t1Jay of ~ ' 19~ I, Coleen M. Hartman, of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, and certified, postage prepaid, to the following: Lucreatia Perry 2648 Lexington Street Harrisburg, PA 17110 ~ Coleen M. Hartman ~ 11) ~ 0 .... .. ,.. uJQ ~ ::l...t. ~z n-' ~~ :c o:'i u.. p::e - c;~ M .:l~ ~ t; r,nm 0 ~a.. ~ U) ::5 {J'\ u l., ~ ~ ti ~~ .. .. a: 0 Iii .. E ~ ... !Z .. f Q ~ .. - " oJ Q ,.. ... 0 a: ~ E x .. :> Ii: d .. VI o.S 0 0: ii .. ~ z ~ VI ~ 0 X M Q ~ ~ .. . ..\ .. -, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1316 LUCREATIA PERRY, Plaintiff DESMOND S. MACTAVISH, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendants JURY TRIAL DEMANDED IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO RESPOND TO AN ANSWER AND NEW MATTER IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANTS AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 THOMAS, THOMAS & HAFER By 73.RT~- Brooks R. Foland, Eequire Attorneys for Defendants 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7626 Supreme Court I.D. No.: 70102 NOTED: SERVE ON UNREPRESENTED PLAINTIFF OR ON PLAINTIFF'S ATTORNEY) DATED: loh6/'1v ( '- w . CERTIFICATE OF SERVICE I, Brooks R. Foland, Esquire, of the law firm of Thomas, Thomas & Hafer, attorneys for Defendants, do hereby certify that on this date I served the foregoing Default Notice by placing a true and correct copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Lucreatia Perry 2648 Lexington Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER DATED: /ohol9L> By (?.{t, -=r~ Brooks R. Foland, Esquire Attorneys for Defendants 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 .. ' . , , " . ". . "-j;,~r,'W. 'E~1~\- "'1JtffJ ' ~(j~!h[;!.~~it!~~;~~: ,if! . . . ",:")1titI,:"w.,,\,\~{,,,,:';"~i~".11J'I'';!':i''.!,:\'''J. "."_~. .. r''''' k~t,",'1'~~"'''M~.1o')'!)n''~,,;' IT~~"'" - ).. ~yi Vflli"'!!Jg/f'J-G"';~t:;'~~;';jf~/<'! ,"' ;~\;~~- rl!:l;A';f~"-~- ~; ,J.'~}';:.,\$:,-,~~~,ii;!!:t;-~l/.,~,j: l: ~'\{j{.itJftS'~""""'<t, _._"_t;t;fr-.,;,.""-' ~.s--;,'r"-"-""lf....:.,i1J.- ",'301 HORTH fRONT ITAIETA~t~~*~.~...t;.;~~';--i~~ t'tP~'ttl'~~,,! 4.",~. ,;,!t ,'>1.\,,'11 1" "',....c!f...J '~l~' . ::'\\~~/p' n'B"O'X' ftll"':~4zf ~ t.t ~!.;tl~-;IJ-'l' ...":"'1:' ':ti 1'.' t , '~'k~' ':-.:\ .. i'!-~I"'l"",'""i?,.. ~.~~'"' 7' ...: ~ 'r."" ("'-''';;)'''j 'n -f/V..t " ~ ~>'-' {~,~, "." ') (.,~ ~'-... ~ '. " '.' '"I ,r, 0" ~ ~ , ,." " j.. .. ,- "" _ ,,,.... ->' , t<",l~J~ ,. "f~'\l ~:' 1:-0, '~Li .~:::~::~ HARRI~BUAO#'_PA.1710~:\;'.",::...,;" '. :.~' ; ,~" ~~::' :1}~~ t:.""t.t~~~,'n";.t,.,f1:,'1t:;"~~,,,,,,,,;,~, '__ "f. ". _'-,~ ~_,.. - I -, LUCRETIA PERRY Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-1316 vs CIVIL ACTION - LAW DESMOND S. MACTAVISH, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE ' JURY TRIAL PRAYED Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies thil.t_ on ~!;his ,'3C..;<,,'~day of June, 1997, the original document of t~~~reg~ngL~s forwarded, via United States Postal service, first class to the attorney for Plaintiff as shown below: Jefferson Shipman, Esquire GOLDBERG, KATZMAN AND SHIPMAN, p.e. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108 /' 0 r Dtt.ui 11./ {.. . ('::A:_.{2f...iVl:"i Barbara A. Onorato 7 Defendant" Production Raqunt to rlalntltf ~ ra~e 7 () ~-~ 0 ~:;~ --J 'n '- "J ,,-; c;: :1.~ r'l- , id'" ::"';1- 'fl 11 " "'6 ':~t ,. ..,1 TO'] " ' )::)' (~'l N ;?~~ , ~;: " ~ :~j :11 'to ~ -. I,) ... j.: i t',!I' " ,. I, ; .. ( , J'. , . " ~j -:::-'\ '1 ~ ,,- Ir'! -. . ' ','. .' l' ( '- I. c.' , ".,J z o CJl~j ~jlll~::l 9.~11<<? olllaEtJ,.!.ll CJl ... ~ oJ' '" ~~~~6 ~<~ . . LUCREATIA PERRY, Plaintiff IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ,/ v, CIVIL ACTION. LAW DAVID M, MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE, Defendant NO. 95-1316 CIVIL TERM AND NOW, this ORDER OF COURT t)" tft". day of November, 1997, in consideration of the allached Motion, the Order of September IS, 1997, appointing arbitrators in the above-referenced case is hereby vacated. Taylor p, Andrews, Esquire, shall be paid $50,00 for his services as Chainnan of the Board of Arbitration, BY THE COURT: f!~1 e- J~ ./ /. J. 9U 1'1 l-ld S- liON L6 ^lN1CHO..UC:.:!d ~:ll :10 301:1:lO-031!~ V'.N'.'i\l.'::~a'i:1d JJ.rlno..') '':H(:lI:~;:'8rt) LUCREATIA PERRY, PlaintilT IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, CIVIL ACTION - LAW DAVID M, MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL I-IOME and MYERS FURNITURE, Defendant NO. 95-1316 CIVIL TERM MOTION TO VACATE APPOINTMENT or ARBITRATORS PETITIONER, Taylor 1'. Andrews, Esquire, Chairman ofa Board of Arbitration hereby moves the court as follows: I, Arbitrators for the above referenced case were appointed by the Honorable Harold E. Sheely on September 15, 1997 and Taylor 1'. Andrews, Esquire was appointed Chairman of the Board of Arbitration. The other arbitrators were Anthony L,DeLuca, Esquire, and Robert G. Frey, Esquire, 2. Petitioner took the time and eITort to coordinate scheduling and to provide notices for an arbitration hearing to be conducted November 25, 1997, at I :00 o'clock P,M. in the Fourth Floor Conference Room, Cumberland County Court House, Carlisle, Pennsylvania. A eopy of the Arbitration Notice is aUached hereto as Exhibit I. 3, By leUer dated October 16, 1997, Petitioner was informed by I'laintiITs counsel that the action was discontinued, Leller and Praecipe for Discontinuance are allached hereto as Exhibit 2, 4. Petitioner has expended approximately one hour in the review of documents, coordination and providing notices of the scheduled arbitration date, and preparation of this Motion. 5. Petitioner asks the Court to vacate the appointment of arbitrators. WHEREFORE, Petitioner prays Your Honorable Court to vacate the order of September 15,1997, appointing arbitrators in the above-referenced case, and further requests the Court to direct payment of$50.00 to the Petitioner for his services as Chairman of this arbitration, Respectfully submilled, Date: (~ -",5c - 1'7 ; , I I I I \ \ LUCREATIA PERRY Plahlllff v. DAVID M. MYERS, DESMOND S. MACTAVISH and SALLY MYERS MACTAVISH, his wife, DAVID M. MYERS FUNERAL HOME and MYERS FURNITURE Defendant IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1316 CIVIl. TERM JURY TRIAl. DEMANDED NOTICE OF MEETING OF ARBITRATORS PLEASE TAKE NOTICE that the Arbitrators appointed in the above-captioned action will sit for the purpose of their appointment on Tuesday, November 25, 1997, at 1:00 o'clock P,M. in the Old Court House, Second Floor Hearing Room, Cumberland County Court House, Carlisle, Pennsylvania. Date: ?_ -zS-..JI7 Taylor 1', Andrews, Esquire Anthony DeLuca, Esquire Robert G, Frey, Esqulr By: TO: Jefferson J, Shipman, Esquire 320 - Market Street Harrlsburg,PA 17101 Anthony L, Del.uca 1',0, Box 358 113 Front Street Boiling Springs, PA 17007-0358 Robert G. Frey Frey & Tiley 5 South Hanover Street Carllsle,PA 17013 Desmond S, Mactavish amI Sally Myers Mactavish 60 2nd Street Newport, PA 17074 Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street, Sixth Floor POB 999 Harrisburg,PA 17108.0999 David M, Myers David M. Myers Funeral Hume & Myers Furniture 64 2nd Street Newport, PA, 17074 Luerealla Perry e/o Jefferson J. Shlpmnn, Esquire 320 Markel Slreet Harrisburg, PA 17101 Court Administrator's Offiee Cumberland County Court House I Courthouse Square Carlisle, PA 17013 Bulletin Board Prothonolary's Office Cumberland County Court House Carlisle, PA 17013 .......-...,--.,.....,"'.,....; ..i. JOS(l'It p, tWEn JAlM.S K. "tOMAS, II Jml1EY 0, nETTIG I'mnJC\JI1It( " mJv<[ Mcl[MOOr. JR W....AIIlJ It JVtUiAt.. Jil C. KENf miCE _0 GAlE OAVIO L, SCHWAlM I'mn J S/'UoKEn OOUOLAS 0 MARCELLO PAUl.. J OElLASEGA DANIEL J GAll..AGtttn n06(nf A.. fAYlon SIoIWt W AIlOS[LL EUGENE N. MctlUQlt AJOWlD C. SENECA SfEPttEN E. OEOUlOIO KAllEN S, COA1ES 0AI1Y 1 LATH/lOP 1000 0 IW1YOL KEViN C' IoAcWoIoW1A onooKS n fOLANO JOHN fLOUNLACKEn 'J~o",a8, 'JllOmU8 & Jfa/e,. 7111o,."e'l8 ul .f',W 305 NORTH FRONT SmEET mt:otJN!.tl JAUr5" tIl0UAti m~TII HOOR 1', 0 IJO~ 999 \Mlllfll'.lllIlIrIIIlAI'II''''1111I HARRlSOURO, PA. 17108 17111131.1100 (717) 266-7626 fAM 11111 i'37.1tOS October 16, 1997 Taylor P. Andrews, Esq. 78 W. Pomfret Streat Carlisle, PA 17013 Anthony L. DeLuca, Esq. POB 358 113 Front Street Boiling Springs, PA 17007-0368 Robert G. Frey, Esq. Frey & Tiley 6 South Hanover Street Carlisle, PA 17013 re: perrv v, McTavish Cumberland County No. 96-1316 Civil Term Gentlemen: Please be advised that Plaintiff has withdrawn the above matter and has had the case marked settled, discontinued and ended with the Cumberland County Court of Common Pleas. Therefore, please remove the matter from the arbitration list for November 26, 1997. Very truly yours, THOMAS, THOMAS & HAFER By: -B- t, ::1==' I--(:'~ Brooks R, Foland BRF:cmh cc: Jefferson J. Shipman, Esq.