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Home My WebLink About95-02621 ~. N ..... In i~ rn :r: , - .-. ',' ~ "::J .) ~ I'V\ ~~' r1) "\) ..,. ., -L "6 - (\~ ':::i. Q.. ~, - G ~ I I ff 'I Ii I I' " I ! HI, ~ I~ ~5 ~ 9 ~ ~ ~ ~;! ~ ~ II 81~ . COMPLAINT AND NOW, this II riJ day of i I) (I ,{ , 1995, comes the Plalntiff, Dee Michelle Malolt, by her attorneys, the Law Offices of Donald L. Relhart, Esquire, and files the follOWing Complaint upon a cause of action, whereof the follOWing Is a statement: 1, The Plaintiff, Dee Michelle Malolt, is an adult individual residing at Box 476, Lemoyne, Pennsylvania 17043, 2, The Defendant, Kerry R. Kishbaugh, is an adult individual residing at R.D. 5, Box 159, Bloomsburg, Pennsylvania 17815, 3, At all times relevant hereto, Plaintiff, Dee Michelle Malott, was driving a 1988 Chevrolet Cavalier, bearing Pennsylvania registration number PAW457. 4. At all times relevant hereto, Defendant. Kerry R. Kishbaugh, was driving a 1993 FLD 120 frelghtllner, bearing Pennsylvania registration number AA.32904, 5. On September 3, 1993, at approximately 3:00 A.M" Plaintiff, Dee Michelle Malott, was traveling south on Routes 11 and 15 in Wormleysburg Borough. Cumberland County, Pennsylvania, 6. At the same time, Defendant, Kerry R. Kishbaugh, was proceeding South on Routes 11 and 15 behind the vehicle driven by Plaintiff, 7, Suddenly, and without warning, Mr. Kishbaugh proceeded to pass Plaintiff on the left in a No-Passing Zone, when he crashed Into the left rear of Ms, Malott's vehicle with his right front tire. 8. The vehicles became locked for apprOXimately twelve hundred (1200) feet before separating. 9, After Impact, Defendant failed to stop his vehicle, 10, Plaintiff was forced to chase the Defendant's vehicle, when he finally Btopped on Third Street on the Lemoyne bridge, 11, Ms, Malott exited her vehicle and began to approach Mr, Kishbaugh, when he once again sped away, 12 The collision was a direct result of the reckless, willful and wanton negligence of the Defendant and was not cauBed by the Plaintiff In any manner whatsoever, 13, At the aforesaid time and place, the willful and wanton negligence and carelessness of said Defendant, Kerry R, Kishbaugh, consisted of: (a) operating his vehicle in violation of 75 Pa.C,SA ~3743(A), Accidents Involving Damage to Attended Vehicle or Property; (b) operating his vehicle in violation of 75 Pa,C,SA ~3736(A), Reckless Driving; (c) operating his vehicle at an excessive rate of speed under the circumstances; (d) failing to observe Plaintiffs vehicle on the highway; (e) falling to operate his vehicle In accordance with existing traffic conditions; (f) failing to keep a reasonable lookout for other vehicles lawfully on the road; (g) falling to yield the right-of-way to traffic already upon the highway; (h) failing to keep his vehicle within the proper lane; (I) passing a vehicle In a No-Passing Zone; OJ failing to maintain proper, safe and adequate control of his vehicle; (k) failing to stop before crashing Into Plaintiffs vehicle; (I) falling to use due care under the circumstances; and (m) crashlr,g Into Plaintiffs vehicle; and (n) otherwise operating said vehicle In a careless, reckless and negligent manner, and In a manner violating the Motor Vehicle Code of the Commonwealth of Pennsylvania, 14, At the aforesaid time and place, and by reason of the Defendant's negligence, Plaintiff, Dee Michelle Malott, suffered severe shock and damage to her physical, emotional and mental systems, both known and unknown existing weaknesses and pre- existing condillons, If any of the Plaintiffs physical, emotional and mental systems were Injured or aggravated, 15, As a direct result of the willful and wanton negligence of the Defendant, Plaintiff, Dee Michelle Malott, sustained serious injuries, including but not limited to contusions, sprains and spasms, and carpal tunnel syndrome, 16, As a direct result of the willful and wanton negligence of the Defendant, Plaintiff has suffered and will continue to suffer physical pain, mental anguish, discomfort, great Inconvenience, distress, humiliation, embarrassment, and loss of life's enjoyment and pleasures, 17, As a direct result of the willful and wanton negligence of the Defendant, Plaintiff has been forced to Incur medical and hospital bills and miscellaneous expenses for her care and treatment, and may be forced to Incur similar expenses in the future, 18, As a direct result of the willful and wanton negligence of the Defendant, Plaintiff has suffered a loss in wages and will conllnue to suffer a loss In wages. and a loss of future earnings and earning capacity, 19, As a direct result of the willful and wanton negligence of the Defendant, Plaintiff will never again return to her previous activities and routine, 20, Plaintiff, Dee Michelle Malott, brings this action to recover for her past, present and future pain and suffering, humiliation, lost wages, embarrassment, loss of tlfe's pleasure and enjoyment, and all other losses for which damages may be recovered under the laws of the Commonwealth of Pennsylvania, 21, At the time of the accident, Plaintiff, [lee Michelle Malott, was Insured by Donegal Mutual Insurance, Policy No, PAE 0473974, which provided for full tort coverage (See exhibit "A"), 22. As a result of the willful and wanton negligence of the Defendant, Plaintiff claims punitive damages, 23, Plaintiff, Dee Michelle Malott, demands JUdgment in an amount which is in excess of the amount requiring referral to arbilration by the Cumberland County Local Rules, WHEREFORE, Plaintiff, Dee Michelle Malott, demands Judgment against the Defendant, Kerry R Kishbaugh, in an amollnt in exceu of Ten thousand ($10,000,00) dollars, together with inlerest and costs of BUll IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEE MICHELLE MALOTT Plaintiff NO: v. CIVIL ACTION - LAW KERRY R. KISHBAUGH Defendant JURY TRIAL DEMANDED yj;~IFICA liON I, Dee Michelle Malott, hereby verify and affirm that the statements made In the foregoing Complaint are true and correct to the best of my knowledge, Information and ballef, The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa.C.S. g4904 relating to unsworn falsification to authorities. , 'I)' ,(. , '1,/ r,"'" , (t. J. /1" J~. I (, Ii ( Dee Michelle Malott Dated: ')/~~- @ i I I I I ! DONEGAL eOMfJO~}NSUREDS COPY MARIETTA, PENNSYLVANrA 11&47'0302 1-4 PERSONAL AUTO POLICY ORIGINAL COPY -, MALOTT, D, M, P. 0, BOX 823 CAMP HILL, PA DIRECT ACCOUNT 1195 RIVER ROAD BOX 302 MARl ETTA PA 17001 VEHICLES COVERED UNIT ST TER YR MAKE IIN' SERIAL NUMBER 001 PA 007 88 CHEVROLET 882139 1G1JE5114JJ137926 17547 SYM CLASS ST AM CHG DA 07 870810 02/281 INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE COVERAGE LIMITS OF LIABILITY FULL TORT OPTION APPLIES TO THIS POLICY SPLIT LIABILITY LIMITS PP0309 0486 BODILY INJURY.LIABILITY $15,000 EACH PERSON $30,000 EACH ACCIDENT PROPERTY DAMAGE LIABILITY $5,000 EACH ACCIDENT POLICY DOES NOT PROVIDE UNINSURED MOTORISTS COVERAGE POLICY DOES NOT PROVIDE UNDERINSURED MOTORISTS COVERAGE MEDICAL EXPENSE COVERAGE $5,000 PREMIUMS UNIT 1 YES 152,00 132,00 74,00 TOTAL BY UNIT 358,00 TOTAL TERM PREMIUM A-.tL~ Prelldtnl CONTINUED ON REVERSE SIDE REFER TO FINAL PAGE FOR BILLING NOTICE DRIVER 10 DRIVER NAME 01 0, M. LICENSE NUMBER 20983979 'L.2 (81811 02/22/93 $358,00 BIRTH DATE 02/23/64 , LAW orrlo.. or ROO.. T, MAROOLIS BYI KENNETH A. RAPP, ESQUIRE 6400 Flank Drive, suite 900 Harrisburg, PA 17112 (717) 541-8990 Attorney I,D. No. 41671 DEE MICHELLE MALOi~, I IN TilE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA plaintiff I v. I CIVIL ACTION - LAW I KERRY R, KISHBAUGH, I NO. 95-2621 CIVIL I Defendant I JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am thia day serving a true and correct copy of the foregoing document upon the attorney-of-record and in the manner indicated below, which service satisfies the requirements of Pa. R.C.P. 440 and related provisions I Service bv First-Class Mail PostaQe preoaid. Addressed as Followsl Julia Feld Caralle, Esquire 2600 Eastern Boulevard Suite 204 York, PA 17402 (Attorney for Plaintiff) DATE I {, I ~I;" " KEN ET PP, ESQUIRE 6400 lank Drive, suite 900 lIarr isburg, PA 17112 (717) 541-8990 Attorney 1.0. No. 41671 (Attorney for Defendant) ~,; 1 .,f i. , , l,.,'< ;'''-. '" Ii'; !'! ... I!, ~ I, ! t! I, I: Ii J. !( 'j-, , <I' ',.' , " j, i: '. /I, . t" '. t P!.! '< fi ',;;, . . ' \', !; "1' J f. . 'I I' I J;, ;1 , I" j + ~-' j " l. , '" -'" L . l " II "11! ^ '-l:, (. J , i !Ii , ' ") I I' 'l' . 1 : 13~ l.-),,~ fJ( ~~,~ {t, 'hl(.(l.~ ~. , , , LAW orrICI8 or ROGIR T, MARGOLIS BY: KENNETH A, RAPP, ESQUIRE 6400 Flank Drive, suite 900 Harrisburg, PA 17112 (717) 541-8990 Attorney I.D. No. 41671 DEE MICHELLE MALOTT, I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff I v. I CIVIL ACTION - LAW I KERRY R. KISHBAUGH, I NO. 95-2621 CIVIL I Defendant I JURY TRIAL DEMANDED STIPULATION IT IS HEREBY STIPULATED AND AGREED by and between Julia Feld Caralle, Esquire, counsel for the Plaintiff, and Kenneth A. Rapp, Esquire, counsel for the Defendant, that paragraph 22 of the Plaintiff's Complaint claiming punitive damages is hereby stricken. DATE: D;,TE: (,~'lS '~ r ~ , ESQUIRE Defendant) I:R ~, . !Ii, . ~ - - D"l - -~ LAW orrICI. or .001. T, KARaaLI' BY: KENNETH A. RAPP, ESQUIRE 6400 Flank Drive, suite 900 Harrisburg, PA 17112 (717) 541-8990 Attorney 1.0. No. 41~71 DEE MICHELLE MALOTT, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KERRY R. KISHBAUGH, NO. 95-2621 CIVIL Defendant JURY TRIAL DEMANDED DlrIMDAMT'8 AMI.I. .ITH Maw MATTI. 1. Admi tted. 2. Admitted, 3. Admitted, 4. Admitted in part. Denied in part. It is admitted that Defendant Kerry R, Kishbaugh was driving a 1993 FLD 120 Freightliner bearing Pennsylvania registration number AA-32904 on September 3, 1993. To the extent that this averment implies that Defendant Kishbaugh was involved in the SUbject accident, the same i. specifically denied. 5. Admitted. 6. Denied. Defendant Kerry R. Kishbaugh spec1f ically denies that he wu proceeding South on Routee 11 and 15 behind the Plaintiff's vehicle at any time relevant hereto. 7.-11. Denied. It is specitically donied that Detendant KiShbaugh was involved in the subject accident in any manner whatsoever. It is further specifically denied that Defendant Kishbaugh left the scene of an accident following the same. 12. Denied. It is specif ically denied that Defendant was reckless, willful, wanton or nsgligent in any way with respect to tha Plaintiff's claim. Paragraph 12 contains statements and conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of civil Procedure. 13. Denied. It is specifically denied that the Defendant was willful, wanton, negligent or careless in any way with respect to the Plaintiff's claim. Subparagraphs (a) - (n) contains statements and conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of civil Procedure. To the extent these averments are deemed factual, it is specifically denied that the Defendant was involved in the subject accident. 14.-19. Denied. It is specifically denied that the Defendant was willful, wanton or negligent in any way with respect to the Plaintiff's claims. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments of paragraphs 14, 15, 16, 17, 18 and 19, and accordingly denies the same. 20. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averment and accordingly denies the same. 21. Denied. The insurance policy is a writing which speaks for itself. 22. No response required. Paragraph 22 has been stricken by 2 stipulation of Counsel for the parties hereto and, therefore, no responsive pleading is required. 23. Admitted. WHEREFORE, Defendant Kerry R. Kishbaugh respectfully request jUdgment be entered in his favor and against Plaintiff Dee Michelle Malott, together with such other relief as deemed appropriate and just. HZ. MATTaR PUR8UAMT TO PA.a.c.p. aULB 1030. 42 PA,C.8.A. 24. The cause of action and any recovery of the Plaintiff against Defendant is barred or substantially reduced pursuant to the terms of the Pennsylvania Comparative Negligsnce Act, 42 Pa.C.s.A. 57102, which is incorporated herein by reference. 25. The Plaintiff's damages and losses as claimed were not proximately caused in any manner whatsoever by Defendant. 26. The Plaintiff's claims are barred by reason of the Plaintiff's negligence, which cause negligence was greater than the total negligence, if any, of Defendant. 27, The Plaintiff's claims are barred by reason of her conscious and knowing assumption of the risk of harm allegedly caused by the Defendant's conduct. 28. The Defendant committed no acts which could be construed as negligence or in breach of any duty owed to the Plaintiff, thersfore, the Plaintiff'S Complaint fails to state any claim against Defendant upon which relief may be granted. 29. The Pennsylvania Motor Vehicle Financial ResponSibility 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEE MICHELLE MALOTT, Plaintiff NO: 95.2621 v, CIVIL ACTION. LAW KERRY R. KISHBAUGH, Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MAHER 24, Denied, On the contrary, It Is averred that the allegation constitutes a conclusion of law to which no reply Is required under Pa.R.C,P, 1029(d), 25, Denied, On the contrary, It Is averred thet the allegation constitutes a conclusion of law to which no reply Is required under Pa.R.C,P, 1029(d), 26. Denied, On the contrary, It Is averred that the allegation constitutes a conclusion of law to which no reply Is required under PaRC,P, 1029(d), 27, Denied, On the contrery, it Is averred that the allegation conltltutes a conclusion of law to which no reply Is required under PaRC.P. 1029(d), 28. Denied, On the contrary, it Is averred that the allegation constitutes a conclusion of law to which no reply Is required under Pa,R.C,P. 1029(d). 29. Denied, On the contrary, It is averred that the allegation constitutes a conclusion of law to which no reply is required under PaRC,P, 1029(d), Respectfully submitted, ~~.~J-~ Donald L. Relhar!, Esquire Sup. Cl. 1.0, #107421 2600 Eastern Boulevard Suite 204 York, Pennsylvania 17402 Telephone (717) 755-2799 Attorney for Plaintiff Dated: ! - ~. 1";- j VERIFICATION I, Donald L. Relhart, Esquire, do hereby certify that I am the attorney of record for the pleading party herein and that the statements made in the foregoing pleading are true and correct to the best of my knowledge, informallon and belief. The undersigned understands that the statements made therein are made subject to the penallles of 18 Pa, C, S. ~4904 relating to unsworn falsification to authorities, Respectfully submitted, ------ ~~~ 'd~L~' Donald L. Relhart, Esquire Sup, Ct. I.D, ~07421 2600 Eastern Boulevard Suite 204 York, Pennsylvania 17402 Telephone (717) 755-2799 Attorney for Plalnllff Dated: 7/)- /1S ~ ?; ~ C'):5;:r ~ 8f,. . Q. 9::O} . ~ :.~ ~ ~ ~Fi! "., IR ~ ~I! .i ~ Ilii ! sl, ~I~ " .,.... .._, ,- ...... DEE MICHELLE MALOTT, Plaintiff . ,rl![~111.'. .-." ':iJ-" .-.'-., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW NO: 95.2621 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE II, KERRY R. KISHBAUGH, Defendant I, Julia Feld Caralle, Esquire, certify that a true and correct copy of the foregoing Response to Defendant's Request for Production of Documents was caused to be served on the date shown below by depositing same In the United States mail, first- class, postage prepaid thereon, addressed as follows: Kenneth A. Rapp, Esquire Rlpp, Fratlcelll & Ulrich 6400 Flank Drive . Suite 900 Harrisburg, PA 17112 Respectfully submitted, /; By: / ) Q . '\) c.t'."-,,c,,-~ J lIa Feld Caralle, Esquire S . Ct. 1.0.1152027 "2600 Eastern Boulevard Suite 204 York, Pennsylvania 17402 Telephone (717) 755-2799 Attorney for Plaintiff C1 - Dated: 14" 19j5 G ~~'l' l~ Cd .- ." 'I.~.J ~r0 {,h;. "'n Jj!E a ~Il ~I~ I j ~! ! ~ J, 8' ~ .- - - ~ 9n- "'~J",~': TL~ ,}"'_f:<'f<.Jr:~,,..~,l,-,,.,,~,,,-",,,,_:,=,-"''':.f~'- ~':" DEE MICHELLE MALOTT I Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 95.2621 v, KERRY R. KISHBAUGH, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Julia Feld Caralle, Esquire, certify that a true and correct copy of the foregoing Answers of Plaintiff to Defendant's First Set of Interrogatories was caused to be served on the date shown below by depOSiting same In the United States mall, first-class, postage prepaid thereon, addressed as follows: Kenneth A, Rapp, Esquire RlpP, Frltlcelll & Ulrich 6400 Flank Drive - Suite 900 Harrisburg, PA 17112 Respectfully submitted, '\ .. \ \ I J a Feld Cara Ie, Esquire (/ u , Ct. 1.0, "52027 260 Eastorn Boulevard S e 204 , .. York, Pennsylvania 17402 Telephone (717) 755.2799 Attorney for Plaintiff ( By: Dated: 1;1/1 ' 1915 " , , ~ <Xl r: '" Ul~ C.; .:;~ f .' .1;..JO r-( , :~.: . )::''' I., (-jr: " .=1 . ( >. GJt ,,' U) j',," ._It " lL.. 'tal i I .U.. u.. In ."- t.! l , d ~ .1 .~g ""~ il!: Be! ~ II ~ I s Ii il~ If"'- ~ ro.. ""' ,.... ...... 1m MIalELlE MI\1nrr Plalllti! f l'll, ,)1,.21,21 IN '11lI CXlURT or ~ ~ or ('I-1NI2.JXll1fi'Y..J'IIlIlYLYNfIb v. ('lVII, N'I'ICtl - lAW J(J;]tRY R. KI 8Iuwn I [)) f eniant. ,JUlY 'I1l I AI, IJH>V\NDI?D aII'l1I'1CAD~ I, Julia Feld CaHllle, 1fn<~lhn, ",",.tHy t.hat a t.nJe ard oon"l!Ct ocpy of the tbtice of DepooltlCWl of KaI1Y Kjnll/l\~Jh c/o Keluleth A. Raw, Eaquire was caused to be served CWl tile dIIt.e oJ.-M11 lole,., by deiXJ{ljt.lr~J Balm in the United States nail, first-claso, (XXltago prnrold t.hl.!ll:!Cll, ad1rooaed as follC1N81 KaI1Y KI ohIJII\~Jh c/o KelulUlh A. 1lilnJ, I~Bqulre ~, Pratio.lli . Ulrich 6400 Flallk Ddve . Sulle 900 lIan'lab.uu, PA 1'1112 UeBpectfully Buhnitted, ) / IlYI_~ AttOI11eY for Plaintiff Il1too I tbvmiJel' P , 1996 ~. lit: i;(, .: l1- ..)-.1 .' \D ..(;'i J 17: ~: ~~1~ ~ ~ 1'l ~ I! 'i~ 8 ~ ~; ~ ~ i! ~ ~ II 81~ ~ .... '" on ~~;'l~~! ;..i..'.:..~':" ..l'7L.__.~\.' PF CUUERl,AND COUNTY. PENNSYLVANIA DEE MICHELLE MALOTT Plaintiff NO: 95-2621 v. CIVIL ACTION . LAW KERRY R. KISHBAUGH Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Julia Feld Caralle, Esquire, certify that a true and correct copy of the foregoing Third Set of Request for Production of Documents of the Plaintiff was caused to be served on the date shown below by depositing same In the United States mall, first- class, postage prepaid thereon, addressed as follows: Kenneth A. Rapp, Esquire Law Office. of Roger T. Margan. 6400 Flank Drive - Suite 900 Harrisburg, PA 17112 Respectfully submitted, By: . "- u la Feld Caralle, Esquire up. CI. 1.0. #52027 600 Eastern Boulevard Suite 204 York, Pennsylvania 17402 Telephone (717) 755-2799 Attorney for Plaintiff Dated: IrJ../J'3 ' 19Vb ",.' "',..-. ..~ "" ,-. iI' .,' '-- , .. Itl' Cl- /1" ,.... j ('I' u 1 . U.' . I" .1j (. ij) fL . ,I. , ,-- ) :< t':', ,~) ~I! . i ~ II jj ~ ~ II ~If . IAWOHln6 I)ONAI.U I.. 'Um'A'H, ESe). 2600 I;A81HIN al Vfl aUllE 204 YOflK, "UHi9YI VANIA 114022904 ". . m 'l1IB CXlURT OF CXIKfi PLIWI OF ~""-L>>I) roHl'lC. Pl!HlJYLV>>lIA 1m MIrnELlE MMm'I' !'P. 95-2621 Plaintiff v. CIVIL ACrlrn - llIW KERRY R. KI~ [))fendant PIW!X:IPll: 'lU B1!:l'I.'LB AR) SATISFY 'ltl WE PR(JllDVI'ARY I Please mark the aI:ove-captioned case settled ard satisfied ard provide rre with a O:!rtificate of Satisfaction reganiin] Balm. Respectfully submitted, ( Attorney for Plaintiff Dated. J,f/ 'I ' 19 '"/ J