HomeMy WebLinkAbout95-04040
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IN THI oouaT or COMMON PLIAS 0'
OUHBlaLAND COUNTY/ PKNNSYLVANIA
CIVIL ACTION ' LAW
95,4040 CIVIL TKRH
UAD AltAR I ,
V.
WALTIR I. HUGHIS AND
KSIRLY LUMBER COMPANY/
Pehndants
JURY TRIAL DEMANDEP
m....BILJ.RllJUAJ~~.QJilIRlN.c.lll
At a pretrial oonferenoe held Wedne.day, rebruary
28, 1996/ before the Honoreble Harold E. Shoely, pre.ident
Judge, present for the Plaintiff was David L. A.hworth, Esquire.
Repre.enting both Defendant. i. Barbara A. Thome., Esquire.
This is a jury trial whioh .hould take no longer
than two day. to oomplete, and I direot that both ooun.el be
available to start the trial on Monday, Maroh 18th, 1996, should
thi. oa.e be designated for trial at that time. Both oounsel
appear to be availeble during that week, aooordingly.
Plaintiff allegus that on Ootober 6/ 1994/ he was
traveling north on the Hogestown Road, whioh i. a two lane
highway, one lane going north, one lane going south. Plaintiff
allege. he was stopped in a line of traffio when he wa. .truok
in the rear by a truok operated by Walter E. Hughe., and owned
by Eberly Lumber Company. Mr. Hughe. was aoting in the oourse
of his employment at the time of this partioular aocident.
There is no olaim for property damage., .. that matter ha. been
settled.
I
'5-4040 OIVIL TI~
It .eem. pretty clear that if Plaintiff'.
allegation. are oorreot that the Defendant would be negligent in
the operation ot hi. vehiole. At the time of the pretrial,
coun.el for the Defendant wa. not prepared to admit liability/
but it would be my opinion that liability .hould be admitted, if
the faot. are true, and the oa.e ehould proceed to trial eolely
on the qu..tion of damage..
The medical bill. now are about $6/000.00.
Plaintiff allege. that they are admi..ible becau.e of the
Workmen'. compan.ation Act, and I would direct that he brief
that i..ue prior to trial. Al.o there i. a wage 10.. of about
$6/000.00/ and I would al.o a.k that that i..ue be briefed a. to
whether or not that pa.t wage 100. i. admis.ible.
Plaintiff allege. that a. a re.ult of the
injurie. in thi. caee he now ha. carpel tunnel eyndrome on both
hand., which cau.o. .eriou. di.comfort. He further allege. that
becau.e of the time that he will be off work with an operation,
he cannot have this operation becau.e his employer .ay. that he
would have to terminate hi. employment if he had an operation
and wae off work for the period of time required to recover from
.uch an operation.
It .eem. to me that thie item of future wage 10..
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95-4040 aIVIL TIRN
i. going to be the ~ain i..ue for damage. in thi. trial. I
under.tand the Plaintiff i. al.o clai~ing that he atill ha.
problema from a neck and back injury .uatained a. a r...ult cf
thia accident.
Th. doctor. li.t.d on Plaintiff' a pretrial memo
on page four. have not yet been depoaed, but the date. have be.n
..t up for thftir deposition so that the depo.ition. will be
available for trial. So to summarize I would alk that the
Plaintiff submit a pretrial memorandum, and the Defendant. allo,
on the iaaue a. to whether or not beaau.e Workmen/. Comp i.
involved the medioal bill. and the wage lc.s bill. are to be
admi.sible at the trial.
The Plaintiff ha. demanded $100,000.00. Aa of
the pretrial oonferenoe aounael for the Defendant wa. not
prepared to make any offer. My best judgement would be that
liability seema to be olear, and the i.aue is the amount of
damage. to b. paid, and I would think that the Defendant ahould
make .o~e rea.onable offer on thi. aa.. to .attle it prior to
trial.
By the Court/
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4. At or. about 7155 p.m. on Ootober 6/ 1994, a 19B4 Ford
'-600 truok bearing Pennsylvania title number 36753714401 and
regietration number 90042CE was traveling westbound on state
Route 114, also known as Hogestown Road, in silver Spring
Township, Lanoaster county, Pennsylvania.
5. At all times material he~eto, the aforementioned Ford
F-600 truok, more fully identified in paragraph numbor 4/ was
owned by Defendant Eberly Lumber comvany and was being operated
by Defendant Hughes.
6. At or about the above-stated time and date, Plaintiff
Ziad Akari was driving a 1991 Ford F-150 truck bearing
Pennsylvania title number 44379255101 and registration number
VR 75205/ westbound on state Route 114 immediately in front of
the truck being operated by Defendant Hughes.
7. As traffic in front at Plaintiff began to slow,
Plaintiff applied his brakes and gradually came to a oomplete
stop.
B. At or about the same time, Defendant Hughes failed to
see that the traffic in front of him had stopped.
9. As a result of his inattentiveness, Defendant Hughes'
vehiole slammed into the rear of the vehicle which Plaintiff Ziad
Akari was operating.
10. Solely and directly as a consequence of the
aforementioned acoident, Plaintiff Ziad Akari has suffered, and
oontinues to sUffer, sorious and/or permanent injuries,
inoluding, but not limited too the following I
2
(a) Temporary loss of oonsoiousness,
(b) Bilateral oarpal tunnel syndrome,
(0) Posterior neok pain with reduoed ronqe of motion
and fleKion and eKtension of his neok,
(d) Lower back strain, espociallY in t.he right
pataepina 1 musou la ture,
(e) Bilateral upper thigh paino numbness and
contusions,
(t) Sleep disturbance,
(g) Osteophyte formation at the C5/6 level and
neuroforaminal narrowing at the C4/5 level,
(h) Depression (lnd anxiety, and,
(i) Other injuries inadvertently exoluded heretrom Qr
latent in nature.
11. Solely and direotly as a result of the aforementioned
acoident and the injuries set forth in paragraph 10 above,
Plaintitt Ziad Akari has suffered the following damages I
(II) Past./ present and future pain, sutferinq
and inoonvenienoe,
(b) post/ present and future emotional and
mental anguish and andety,
(0) past, present and tuture losl! at lite's
pleasures,
(d) past/ present and future medical
expensell/
(e) past, present and future loss of
earnings and earning capacity, and,
(t) past/ present and future disability.
12. The injuries and damages sustained by Plaintiff Ziad
Akari were oaused, in part/ by the carelessness, reckleBsneBB and
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negllgenoe of Defendant Hughes, and were in no manner whatsoever
oaused by any aot or failure to aot on tho pa~t of Plaintiff.
OOUNT I - NEOLIOENOI
(Plaintiff v. Defendant Hughos)
13. Paragraphs 1 ~ 1~ above aro inoorporated herein by
referenoe a~ though the some were set forth herein at length.
14. The oarelessness, reoklessness and negligence of
Defendant Hughes oonsisted of the fOllowingl
(a) Failing properly to operate the motor
vehicle he was driving 1
(b) Operating a vehiole in careless
disregard for the safety of others in
violation of 75 Pa.C.B.A. S 37141
(0) Failing to keep a proper lookout in
violation of 75 Pa.C,B.A. S 33611
(d) Failing to bring his vehicle to a stop
wi~hin the assured clear distance ahead in
violation of 75 Fa.C.B.A. S 33611
(e) Failing to use due oare under the
oircumstancesl
(f) Failing to operate his vehicle at a safe
speed in violation of 75 Pa.C.B.A. S 33611
(g) Following too closely in violation of
75 Pa.C.B.A. S 33101
(h) Failing to observe with reasonable care
the traffic and road conditions, including
the location of Plaintiff's vehiclel and/
(i) Failing to remain attentive to the
traffic immediately in front of him.
15. Defendant'e carelessness, recklessness and negligenoe
were substantial factors in causing the accident, injuries and
damages set forth in paragraphs 10 and 11 above.
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WHEREFCRE, Plaintiff demand. damage. of Pefendant Hugh..,
individually, jointly and/or aeverally/ in ~ .um in exoe.. of
Twenty-vive Thou.and Pollar. ($~5/000.00), plu. intere.t and
oo.t. a. allowed by law/ whioh i. in exoeme of thQ amount
requiring referral at the oaee to arbitration under the
penn.ylvania and Looal Rule. of civil Prooedure.
COUMT II - .II'OMDIAT IU.IRIOR
(Plaintiff V. Defendant Eberly Lumber company)
16. Paragraphe 1 through 1B above are inoorporated herein
by referenoe a. though the .ame were set forth herein at length.
17. At all time. material hereto, Defendant Hughe. wae
aoting in the oapaoity of agent/ .ervant/ employee and/or
representative of Defendant Eberly Lumber company.
lB. Defendant Eberly Lumber company is liable to Plaintiff
under the theory of Reepondeat Superior for any damagee whioh
were proximately oau.ed by the negligent aots of Defendant Hughe.
a. more fully deeoribed in paragraph 14 above.
WHEREFORE, Plaintiff demande damages of Defendant Eberly
Lumber company, individually, jointly and/or severally, in a eum
in exce.. of Twenty-Five Thousand Dollars ($2B/000.00)/ plue
intereet and co.te a. allowed by law, whioh ie in excess of the
amount requiring referral of the case to arbitration under th~
Penneylvania and Local Rulee of civil Procedure.
COUWT III - MlaLlalMCI
(Plaintiff V. Defendant Eberly Lumber Company)
19. Paragraph. 1 through 1B above are incorporated herein
by referenoe a. though the same Were set forth herein at length.
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30. At the above-atated time and date/ Oerendant Hughe. wa.
driving Oerendnnt Eberly Lumber companY'a motor vehiole with the
knowledge and permi.aion or Derendant Eberly Lumber company.
31. Oerendant Eb.rly Lumb~r company tail.d properly to
in.peot the truok, or to have the truok in.pected, to determine
the exiatence or any violati~na or Penn.ylvania regulation. or
any meohanical dirriculty, inoluding, but not limited too the
brake.
33. Derendant Eberly Lumber company entrusted Derendant
Hughe. with the u.e at this truck despite the taot that they knew
or with the exeroiee or rea.onable oare/ should have known that
the truck wa. un.are and dangerous.
23. Derendant Eberly Lumber Company, thererore, negligently
entru.ted it. motor vehiole to Defendant Hughes.
24. Derendant Eberly Lumber Company's negligence was a
.ub.tantial ractor in causing the acoident, injurie. and damage.
.et forth abave.
WHEREFORE/ Plaintiff demand. damage. at Detendant Eberly
Lumber Company/ individually, jointly and/or .everally, in a aum
in exce.. of Twenty-Five Thousand Oollars ($25/000.00), plus
int.re.t and co.t. aa allowod by law, which is in exces. of the
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YJ;;nIFtCA'rIO~
I verity that the atatemanta made in the foregoing complaint
whioh are within the porsonal knowledge of the undersignod, are
true and correct, and as to foots basod on tho information at
others, the undersignod, after diligent inquiry, believeu them to
be true. And further, as to language and averments which may
oonstitute legal conolusions, I sign this verification on the
recommendation of my attorneys who advise that the allegations
and language in the Complaint constituting legal conclusions are
required legally to raise issues for resolution at trial, by the
Court, or by continuing investigation and preparation for trial.
I understand that some of these allegations may prove
inappropriate after investigation and trial preparation are
oomplete and I leave determination of these mattors to my
attorneys on their advice.
I understand thaL false statements thorein arc made subjeot
to the penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn
falsification to authorities.
....
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ziad
I'y./P _~
Akari
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IN TIll! CIIlJllT IIr fllMMIIN "'l!AN IIr
ClIMIl!III.ANII CUUNTY. rENNK"'."ANIA
CI"II. ACTlIIN . I.AW
Nil. H.<I04Q Chi
nUB /7 3 31 PH '95
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UIMIU COMPANY
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allont.,_ a/It/Ill
HI EAH 1l1\ANllE STnEn
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IN THB COURT OF COMMON PLBAS OF CUMaBRLANO COUNTY, PENNSYLVANIA
CIVIL ACTION ~ LAW
:nAO AI<ARI
NOr 9~~4040 civil
v.
WALTER B. HUGHES and EBERl,Y
LUMBER COMPANY
JUIW 'l'RIAL OEMANOEO
PLAIN'l'IFr.!..a-FRE-'rnI~M
(II STAT~JOE-l~s - LIABILITY
On ootober G/ 1994 at approximately OrDD a.m./ Plaintiff
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Akari was travel~ng westbo~~d pn 1I0gElstown Road (S.R. 114) in
Silver spring 'l'ownship,' Cumberland County, Pennsylvania.
Mr. Akari was in the course of his employment with Amerioan
Hydropower and had brought the 1991 Pard F-150 Truck he was
operating to a complete stop in a line of traffic. Defendant
Walter Hughes, who was operating a 1904 Ford F-600 Truck owned by
his employer, Defendant Eberly Lumber Company, failed to bring
his vehiole to a stop and collided into the rear of Plaintiff's
truck causing damage in the amount of $2/408.50. Defendant
Hughes was oited for traveling at sn excessive rate of speed and
failing to stop within the assured clear distance pursuant to 75
Pa.C.A. S 3361. Defendant Walter Hughes claims that the brakes
on his truck failed immediately prior to the accident I however,
an inspection performed by at least two service stations
following the accident failed to disclose any evidence of brake
failure.
Oefendant Hughes' employer, Eberly Lumber Company has been
joined as a Oefendant in this action on theories of respondeat
Buperior and negligent repair and aervioe of the ford f-600 Truok
to the eKtent Defendant Hughes is able to support his
alleqat1ons.
.!.II) B'l'A'l'EMEN'l' Of FAC'l'B - .oAHAa.EfI
Althouqh he was wearing his seatbelt - lap restraint, the
foroe of tho impact caused Plaintiff's knees to slam into the
dashboard. Mr. Akari had an immndiate tingling sensation in all
of his finger.s and numbness in both hands as a result of impact
with the steering wheel. He experienced immediate neck, lower
back and thigh pain. He was subsequently diagnosed as having
post-traumatio myofascial neck pain and clinioal symptoms
oonsistent with post-traumatio bilateral carpel tunnel syndrome.
He underwent extvnsive physical therapy and diagnostio testing,
including EMGs, MRIs and nerve conduction testing of both hands.
These tests oonfirmed an osteophyte formation at C5-6 and
neuroforamial narrowing at C4-5 which were found to be the oause
of Mr. Akari's ongoing pain and lnability to sleep.
Mr. Akari developed decreased sensation to touch in all of
his fingers with complaints of a "buzzing" feeling in his
fingers. Steroid injections into the carpel tunnels on both
hands provided only temporary relief. For the moment, Mr. Akari
has opted not to undergo carpel tunnel surgery as he is oonoerned
that an extended period of time away from work would result in
the loss of his job,
Mr. Akari is the maintenance superintendent for American
HydroPower and is responsible for tho ongoing operation and
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maintenanoo of several aro~ hydrooloctric power plants. The
pain-free use of hie hands on a day to day, hour by hour basis is
oritical. Unfortunately, his hands freqUently go numb and he is
unable to feel the items he is holding. Quite of ton he drops
things and is concerned that it this continues his job may be in
jeopardy.
To dato, Mr. Akari has incurred a waqe lose of $5/916,00
with medical bills of $6,085.98. Pursuant to S 319 of the
Worker's compensation Act, Mr. Akarits employer has aBse~ted its
subrogation ~ights in this case thereby msking sll amounts
payable thereunder recoverable at trial. The total blackboa~d
figures in this case presently exceed $12/000.00. Future oa~pel
tunnel surge~y cannot be rUled out.
(III) ~~AIEMEtl1 OF ISSUE6
A. Liability.
1. Negligence of Defendant Walter Hughesl
2. Negligence of Defendant Eberly Lllmbe~ company.
B. Damages.
1. Nature and extent of Plaintiff's damages.
(IV) SUMMARV OF LEGAL ISSUES
This is a simple, straightforward "rear-ender" type accident
with no unique legal issues. Plaintiff contends that Defendant
Hughes operated his vehicle in violation of Title 75 Pa.e.s.
S 33611 S 3310 and S 3714. ~ al~/ McGowan v. U.~/ 156
F. 8Upp. 132 (D.C. 1958) I Gaber v. Weinber9, 324 Pa. 38/ 188 A.
3
187 (1936) I KcGin V~gnJ:u, H I':rie 95 (191$1) I fQlulf.a v. Brady,
64 LUI.L.Reg. 135 (1974).
.LY,UU~E.WlJ!:a
1. Plaintiff Ziad Akari,
2. Officer Gerald R. steiglemanl
3. Oefendant Walter Hughee - ae on crOSI examination I
4. Todd ["~ samuele, M.D.I
v ' l'l
5. Gary Schwartz, M.D.I
6. Oaniel Dandy, physical Therapietl
7. John P. stratie, M.D. I
8. Alan Miller and/or other repreeentative of
HydroElectrio Powerl
9. Relevant medical records cuetodians to confirm the
authenticity of medical billal
10. Ron Weaver - Eberly Lumber company - ae on cross
examination.
(VI) EXHIBITS
1. Diagram of accident acenel
2. Photographe of Plaintiff's truck I
3. Anatomical diagram/model I
4. summary of medical billsl
5. summary of wage loes.
(VII) STATUS OF SETTLEMENT NEGOTIATIONS
Under cover of letter dated June 5/ 1995/ Plaintiff provided
Defendants' insurance representative with a fully-documented
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All of the documentation regal:ding repain to the
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VII. S8'1''I'LEMrm't., Nl::GO'1'I^,1'I01Hl
A demand of $100,000 hils boen mllde, No response has
been 9 1 von.
MARGOLIS EDl::LSTEIN
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(J3A !lARA A " 'l'HOMAS I 8SQU I RE
Attorney for De fondants
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IN Tllr. COUllT 0' COMMON PI.MIlO'
CUM"'JII.,\,NII COUNT\',l'I!NNIYI.V"NI"
CIVil. M:"IOI'f' '."W
NO,
95-4040
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III BAST llMNOU 6nEET
1'061' llFFlCE BOX I III
LANCASTEB. l'ENNijYI.VANIA 11'08-1111
111111'J1.1000
FAX (117) 194,0641
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IN TilE COUR'l' OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ZIAD AI<ARI
1'101 95-4040 civil
v.
WALTER E. HUGHES and EBERLY
LUMBER COMPANY
JURY TRIAL DEMANDED
CER'l'IFICATE OF SERVICE
I her.by certity that I have this day served a true and
corr.ct ccpy ot Plaintitt's Obj.otions to Int.rroqatories
Addr....d to Plaintitt, Ziad Akari, Propounded by O.tendant
Eb.rly Lumb.r Company upon the per-son set torth below and in the
manner indicatedr
Servlce by first class maile
Barbara A. Thomas, Esquire
Marqolis, Edelstein' Scherlis
The Curtls center, Fourth Floor
Independence Square West
Philadelphia, PA 19106-3304
Date~ 9~
WAGMAN, ASHWORTH, I<REIDER , WRIGHT
'Y'~~~~ttorn.Y. 'or
Plaintitt
222 E. oranq~ st., P.O. Box 1622
Lancaater, PA 17602
(717) 397-7000
S.Ct.ID. No. I 32118
IN fUr. mUllf II' CIIMIlfIlN I'I.'.AN I)'
CIIMllt:IIUNII CIIUNTY/l't:NNnl.V"NIA
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Kreider~riQht
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5, AdmHtad,
6, lJeniod. Attar rellsonllbla investiglltion, answering
det~ndant ia without KnowLodqe or informlltion sufficLent to form /I
belief as to the truth of these /II log/ltlons lind, thoreforu, donioa
! same and dUlllllndH strict proof thonlOf ill'. Lho tllllo ot trial, If
releVllnt.
7, Daniud. Attur rtlllHonllUle investigation, answering
defendant III without Knowlodgll or inforlllllUon Ilufficient to form /I
balief as to l'.hu truth of thoso IIllegations lind, therefore, denies
sallie Ilnd dOlllandll strict proof thereof lit the tUne of trial, if
relevant,
8. '1'11iH is directad to a de fondant other than answering
defendant hurein. Therefore, answering defendant is advised that no
further answer is necessary,
9, Donied. This is directed to a defendant other than
answering defendant herein. Therefore, answering defendant is ad-
! vised that no further answer is required.
10. Penlod. Atter reasonable investigation, answering
defendant is without. knowledge or information sufficient to form a
belief as to the truth of these allegations and, therofore, danies
same and demands strict proof thereof at the time of trial, it
relevant.
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11. Pen led. After reasonaule investigation, answering
defendant is without Knowledge or information sufficient to form a i
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boliof as to the truth of these alloqations and, therefore, denies
same and demandll strict proof theroof at thu t.lme of trial, if
relevant,
12, 'l'his 1s direoted to a dofendant othor l'.hlln anllworing
defendant hero in, 'l'here fOl'e, answer.ln<j do f endanl'. la adv laed that no
further answer is necessary,
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13, AnHwer.lng defendant Lncorporates by ruference its
answers to paragraphs 1 through 12 of plaintiff's Complaint all
fuliy as though the same were Bet forth herein at length,
14. 'I'his Ls dLrecl'.ed to /1 defendant other than Ilnswer.lng
defendant heroin. Therefore, answering defendant ill advilled that no
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further answer Is nucuBllary.
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15. DenLod. ThLs Ls dlrocted to a defendant other. than
answering defendant hereLn. Therefore, answering defendant is ad-
vlsed that no further answer is necessary.
COUNT.....!.!
16. Answering defendant incorporates by roference its
answers to paragraphs 1 through 15 of plaintiff's Complalnt as
fully as though the same were Bet forth herein at len~l'.h.
17. Admitted In par.t I denied in part. I t is admi tted
that defendant Hughes WIIB acting In the capacity of an employee.
However, it is denied that he was an agent, Bervant and/or repre-
sentative of defendant Eberly Lumber company.
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Ill, Ollnllld. 'I'his ill II lJOn01Ullion of law to whioh thll
Pennuylvllnlll Rull1~ of CiVil ProlJodurll rllquLrll no rOHponalvll plead"
i Ing IInd Is thorll(llre dunlod /Ind IItrlct prllllt ill domondod 111'. the
time of tho 1'.1.'1111, It rulllvllnt, t'urthllrmorll, Lt ia opeciflcally
den ied th/lt dotondllnt Ilu'lhoa Willi noq LLqont,
Wllf:lU;FOllf:, rlltlpundin'J "utlllldant dllnLes it is liable upon
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tho olluse ot actLun dllcLarod upon.
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19. Anllwerlng dllfondant incorporates by reference its
answers to paragrapha 1 through IB of plaintiff' a Complaint all
fully as though the Ramo wore sot forth harein at length.
20. Admi Und,
21. nonied. It lR donled that anBworlng defendant failed
to properly inllpocl'. tho truck or have tho truck Inspected to deter-
mlne the exlRtonco at any violatlonB of tha Pannaylvania regula-
tions or any mechanical dltficultiaB, including, but not limited
to/ the brake. To tha contrary, onBwaring dofendant did not fail to
properly inBpect the truck or have the truck inBpected.
22. Panled. It Is specifically donied that the truck waB
unsafe or dllngorouB. To tho contrary, at all times herein relevant,
the truck was safo and non-dangerous.
23. PenLed. It is specifically denied that answerlng
defendant negligently entruated its motor vehicle to defendant
Hughes. To the contrary, anawering defendant did not negligently
-- 4 --
entrust ita motor vohilllo to de fondant lIuqholl,
24, Duniud, 'l'hL~ la (\ mmlllullLon of law to whioh the
Pennsylvanill Rulull or CLvLI Proeodurll roquLro no rOllpon~ivo pl011d-
ing, It i~ thllruforu duniud IInd IltrLct proM thuruof ill dumandod at
time of trial. l"uJ;"thurll1oru, Lt ill I:lpuGltlclllly dunlud that anllwur'
ing defendant wall nogligunt, To the contrary, at all times heroin
relevant, anllwerlnq do fondant /lcl'.ed in /l roasonable, prudent and
careful m/lnnor.
WHEREFORE, rOllpondinq de fondant denies it is liable upon
the causo of /lction doclarod upon.
NEW MATTER
!ly way of further anllwor, answering defendant avers the
followlng New Mattorl
25. If it is determinod that de fendant j;;berl y Lumber
company is liable on plaintLff'll cause of action, answering defen-
dant avers that plaintiff's recovery should be eliminated or re-
duced in accordance with the Pennllylvanla Comparative Negligence
Act, 42 Pa.C.S.A. S7102.
26. I t III further averred that if plaintU f su f fored any
injuries and/or damagell 6S alleged, they were caused solely and
primarily by the plaintlff'lI own carelessness, recklessness and
negligence.
27. Answering defendant asserts all of the defonses,
limitations and excluslons avallable under the Pennsylvania Motor
-- 5 --
IN 'tHE COURT OF COMMOtf PLEAS or CUMBERLAND COUNTY, PflHNSYLVANIA
CIVIL ACTION - LAW
ZIAD AI<ARI
1'101 95-4040 oivil
v.
WALTER E. lIUGHES and EBERLY
LUMBER COMPANY
JURY 'l'RIAL DEMANDED
PLAINTIFF'S REPlLY TO NIH-HAT~
25. Paragraph 25 of Defendant's New Matter sets forth a
oonclusion of law to which no reply is requlredl however, to the
extent that any faots are averred the same are specifically
denied and proof thereof to the contrary is demanded at tl:ial, if
deemed neoessary.
26. Paragraph 26 of Defendant's New Matter sets forth a
conclusion of law to which no reply is requiredl however, to the
extent that any faots are averred the same are specifically
denied and proof thereof to the contrary is demanded at trial, if
deemed necessary.
27. Paragraph 27 of Defendant's New Matter sets forth a
conclusion of law to whlch no reply is required I however, to the
extent that any faots are averred the same are speclfically
denied and proof thereof to the contrary is demanded at trial, if
deemed necessary.
28. Paragraph 28 of Defendant's New Matter sets forth a
oonclusion of law to which no reply is required I however, to the
extent that any faots are averred the same are speoifically
denied and proof thereof to the oontrBry ie demBnded Bt trial, if
deemed neoessary.
29, Denied,
30, Denied.
31. par.agraph 31 of Oefendant's New Matter sets forth a
oonolusion of law to which no roply is roquiredl however, to the
extent that any facts are averred the same ore specifically
denied and proof thereof to the oontrary is demanded at trial, if
deemed necossary.
WHEREFORE, plaintlff demands judgment ln ~ccordance with his
complalnt.
KREIOER & WRIGHT
2_-,.
BYI
for
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32118
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MARGOLIS, EDELSTt:IN . SC/lERLIS
BYe BARBAllA" THOMAS, ESQUIRE
ld~ntification No, 47010
The curtis Cantor, Fourth Floor
lndependonce ~quaru We~t
Philadelphia, VA 19106
(2151 922-1100
Attorney for Defendantt
Walter E. /lughes
---------
v.
cOUIt'r OF COMMON PLf:AS
CUM!lEItLANP COUN'fY
NO, 95-4040-Civil Turm
"IAD AKAIU
WALTER E. HUGH8S and
~BERLY LUMBf:I\ COMPANY
JURY TRIAL DEMANDED
DEFENDANT'S, WALTER E. HUGHES
ANSW~R TO PLAINTIFF'S COMPLAINT WITH N~W MA'I~
Comes now defendant Walter E. Hughes and answers plaintlff's
Complaint as followSI
1.
Deniod.
After reasonable investigation, an~wering
defendant is without Knowledge sufficient to form a belief as to
the truth of tho averments contained in parngraph 1. Therefore, no
response is requirod under the Pennsylvania Rules of clvil
procedure.
2. Admi tled.
3. This is directed to defendant other than answering
defendant herein. Therefore, answering defendant is advised no
further answer is necessary,
4. Admitted.
5. Admitted.
6.
Denied.
After reasonable investigation, answerlng
defendant is without knowledge Bufficient to form a bellef as to
the truth of the averments contained in paragraph 6. Therefore, no
response i~ required under the pennsylvania Rules of Civil
Proolldurll,
? DlInied, Attar reasonable investigation, IInswering
dllfllndant ia without Knowladgll aufficient to form II blllillf a8 to
the truth of tha avermanl'.s contained in paragraph 7, Thllreforll, no
response ill required undllr the Pennsylvanla Rules of Civil
Prooedure.
0, Denilld. It is specifically deniod that defendant Hughel!l
failed to slle the traffic in frl/nt of him and stop. To the
oontrary, defendant Hughes did not fail to sae the traffic in f~ont
of him and stop.
9. Denied. It ia spec it icall y donied that answering
defendant Hughes was inattentive. To the contrary, at all tlmes
herllin and relovant, answering dllfllndant was paying close attention
to the roadway. However, when he deprassed the brakes, they dld
not catch immediately. Furthermore, it is specifically denied that
he "slammed" Lnto the rear of the vehicle whir.h plaintiff Had
Akari was operating.
10. Denled. After reasonable investigation, answering
defendant is without knowledge or information sufficIent to form a
beiief as to the truth of the averments contained in paragraph 10.
Therefore, no response is required under the Pennsylvania Rules of
civil Procedure.
11. Denled. After reasonable investigation, answer.ing
defendant is wlthout knowledge or information sufficlent to form II
belief as to the truth of the averments contained in paragraph 11.
Therefore, no response is required under the Pennsylvania Rules of
2
Civil Prooedllu.
12. Denied, After reasonable investiglltion, answering
defendant is without Knowledge or information suffioient to form a
belief as to the truth of the averments contained in parllgraph 12.
Thereforo, no rosponse is requlrod under the Pennsylvania RUles of
Civil Procedure.
COUNT I
13, Answering defendant incorporates by reference its answers
to paragraphs 1 through 12 of plaintiff's Complaint as fully as if
the same were set forth herein at length.
14, Denled. It is specifically denied that answerlng
defendant was careless, reCKless or negligent. To the contrary, at
all times herein relevant, answering defundant acted in Il
reasonable, prudent and careful manner.
(a) Denied. I t is denied that defendant failed to
properly operate the motor vehicle he was driving. To the
contrary, defendant did not fall to properly operate the motor
I vehlcle he was driving.
(b) Donled. It is denied that defendant was operatlng
the vehlcle in careless disregard for the safety of others ln
violation of 75 Pa.C.S.A., Section 3714. '1'0 the contrary,
defendant was not operating a vehicle in careless dlsregard for the
safety of others in violation of 75 Pa.C.S,A., Section 3714.
Furthermore, thls it! a conclusion of law to which Pennsylvanla
Rules of Civil Procedure require no responsive pleadings and
therefore denied and strict proof thereof is demanded at the tlme
3
ot tdal, if relevant,
(0) penied, It ls den led that defendant falled to keep
a pl:opel: lOOK-out in vlolatlon of 7~ pa.e.s.A" sQctlon 3361, To
the oontrary, defendant dld not tall to keep B proper look-out in
violation of 75 pa.C,S.A" sectlon 3361.
(d) pllnled, It la den led that defendant falled to l:>ring
hls vehlcle to a stop wlthln the assured doared distanoe In
violation of 75 pa,C.S.I\., section 3361. '1'0 the contrary,
defendant did not (all to l:>rlng his vehlcle to a stop within the
assured clearlld distance ahead In vlolation of 75 pa,C,B.A"
Beotion 3361.
(0) ponied, It is denied that defendant failed to use
due care under the circumstances, To the contrary, defendant dld
not fail to use due care under the circumstances.
(f) Denied.
It is denied that defendant failed to
operate his vehicle at a safe speed in violatlon of 75 pa.C.B.A.,
Bection 3361. To the contrary, defendant did not fall to operate
his vehicle at a safe speed In vlolatlon of 75 pa.C.S.I\., section
3361.
(g) Denled. It Is denied that defendant was following
too closely in violatlon of '75 pa.e.B.A., Bection 3310. To the
contrary, defendant was not following too closely in violation of
75 Pa.e.B.A., section 3310.
(h) Denied. It is denied that defendant failed to
observe with reasonal:>le care the traffic and road conditions,
lncluding the location of plaintiff's vehicle. To the contrary,
4
defendant did not tail to obsorvo with roasonablo care tho traffic
and road oonditions, including tho location of plllintiff's vohicle,
(11 Peniod. It Is denied that defendant failed to
remain attentive to the traffic l~"edlatoly in front of him. To
the oontrary, defendant did not fllLl to I.'omllln attentive to tho
traffic immodiately in front of him,
15. Denied. It Is speciflcally doniod that answering
defendant was caroless, reckless or negligent. '1'0 the contrary, at
all times herein relevallt, answering defendant acted ill a
reasonable, prudent and careful manner. As the other averments
oontained Ln paragraph 15 of plaintiff's Complaint, these are
conclusions of law to which the Pennsylvania Rules of Civil
Procedure roqulre no respolIsive pleading and therefore denied and
strict proof thereof demanded at the time of trial.
WHEREFORE, responding defendant denies that they are liable
upon the cause of action declared upon.
COUNT II
16. Answering defendant incorporates by roference his answers
to paragraphs 1 through 15 of plaintiff's Coml'laint as fully as
though the same were set forth herein at length,
17. Admitted in part, denied in part. It is admitted that
defendant Hughos was acted in the capacity of employee. It is
denied that he was an agent, servant, and/or representative of
Eberly Lumber Company.
18. Penled. This ls a concluslon of law to whlch the
Pennsylvania Rules of Civll Procedur.e require no responsive
5
ploadiny and II!! thoro foro don Led anti strict proof l'.heroof is
dllmandetl at tho limo of trilll if rolllvllnt, l.'url'.hormnro, it is
sPIlUlticlllly dUlIllld that IlIlHworing dufolldllnl lIU'IhllS Willi negllgont.
Thereforll, roaponding dotandant danias thllt thay arll liabill upon
the caU~ll of action doclarad upon.
C OUN!...!l1.
19, Answorlng defendant inc:ot'"poratos by raforllnclls his
,ansWllrs to paragraphs 1 through 18 of plaintlf f' s Complaint as
fully as though the samll were set forth herein at length,
20. Admi ttlld.
21, Denied. 'l'hia is directed to de fondant other than
answllring defllndant therein. 'l'herefore, answering defendant is
advised no further answer Is neceaaary.
22. Penied. 'I'hia is directed to defendant other than
answering defendant ther'lin. Therllfore, answering defendant ia
advised no further answer is necessary.
23. Denied. This is directed to defendant other than
answering defendant therein. Therefore, answering dafendant is
advised no further answer is necessary.
24. Penied. This is directed to defendant other than
answering defendant therein. Therefore, answering defendant ls
advlsed no further answer is necessary.
WHEREFORE, responding defendant denies it is liable upon the
caUse of action declared upon.
NEW MATTER
By way of further answer, answering defendant avers the
6
following NeW Mftttorl
~5, It it 111 determinad thllt defendant, 1'1 & a Pill~a
A8IIoailltes is liabie on plainUrt 'a cause of action, defendant
averll that piaintiffs' recovery should be eiiminated or reduced in
aocordanoe with the Pennsylvania Comparativo Negligence Act, 4~
Pa,C.r,I.A, S'l102.
26, It ia further avorred that If the plaintiff suffered any
injuries/damages aft alleged, they wero caused solely and primarily
by plaintiff's own carelessness, recklessness and negligence.
~7. The answering defendant asserts all of the defenses,
limltlltions and exclusions available under the Motor Vehicle
Financial Responsibility Law, 75 Pa.C.S. S1701 et seq., and aver
that the plaintiff's remedies are limited exclusively thereto and
therefore the present action is barred.
28. It is further averred by the answering defendant that the
plaintiff's cause of Bet ion i~ barred by the appropriate statuto of
Limi tations.
29. Answering d.Hendant avers that plaintiff has failed to
take 1111 reasonnble Bnd necessary steps to mitigate damages and
lnjuries allegedly suffered in this case.
30, Answering defendant avers that ei thet' some or all of
plaintiff's alleged injuries, damages and treatment are unrelated
to the accident and/or incident which is the basis for this
lawsuit,
31. Answering defendant denies each and every other
allegatlon in all causes of action not heretofore denied.
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CUlltllr.l'.ANlI CI/UNTY, Pl':NNNVI.VANIA
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111 M6T llRANllE 6TREIiT
I'ORT OFFICE BOX IIII
L^NCASTER, PENNSYLVANIA 17608.1111
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CIVIL .u:l'lON . LAW
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