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Home My WebLink About95-05381 , " f\lrnOrnGE 0: 1'" \ ''1' ,,"()1Iri( ., k\'''' '/'1 0" ". 'll q I\'~\~ ,. \ i l .P ,I' CU,'''I'' ,,' 1,..",N j'l". .. ' ,U J'....'.JI'il1 Pf:~Hr.;\'l~.!!\:{i\ . '. ... .. This otherwise uncomplicated case should be of no more than two days' duration. Each side wlll have the usual number of juror challenges. David Lutz, Esquire For the Plaintiffs , A;j.. August 27.1997 Scott A, Freeland, Esquire For the Defendant :r1m ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs , v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-5381 Civil Term KEVIN J. CORMIER, Defendant JURY TRIAL DEMANDED PLAINTIrrS' PRE-TRIAL M2MORANDUK I. Facts/Liability On February 21, 1997, at approximately 11131 a.m., Plaintiff Robert Dutcher was operating his vehicle in a southerly direction on State Route 11/15 in Upper Allen Township, Cumberland Count.y, Pennsylvania. Suddenly, Mr, Dutcher came upon a prior. motur vehicle aocident. Mr. Dutcher slowed and stopped his vehicle pri or to the accident site. At that time and place, Stanley Kochevar was operating a 1992 Dodge Dakota and stopped directly behind Mr. Dutcher's vehicle. While Mr. Dutcher and Mr. Kochevar were stopped in their vehicles waiting for the prior accident to be cleared so that they could proceed, Defendant Kevin J, Cormier approached at a high rate of speed. Defendant Cormier failed to stop for the line of traffic, rearended the Kochevar vehicle, and pushed it into the rear of the Dutcher vehicle. l07492/MLM ;; -~" '" ,c.. < .~.. '~J,i~i~<"'ifJ#i~~~~~~~.;,L'r/~ ~ :'~~~?~~~~,'~';':::L';':lB'l~i~j~1{TL~Sl:Xi,>,;~~UJf.~~~8!~ , ," .. Plaintiffs respectfully submit Defendant is solely liable for this accident. Defendant followed too closely, was inattentive, and violated the assured clear distance ahead rule. I I . Damaaes Mr. Dutcher's injuries include a cervical strain, right flank pain, and cervical facet impingement syndrome. Mrs. Dutcher is pursuing a loss of consortium claim. III. Witnesses 1. Plaintiffs 2. Defendant, as on cross-examination 3. Stanley Kochevar 4. Robert Musser, M.D., via deposition 5. Richard H. Hallock, M.D., via deposition Plaintiffs will supplement this list, if necessary, in a reasonable time prior to trial. IV. Bxhibits 1. Police Accident Report Plaintiffs will supplement this list, if necessary, in a reasonable time prior to trial. ," I .. , V. Lenath of Trial 1~ days. VI. Settlement Neaotiations Defendant's last offer was $9,000, Plaintiffs' counterclaim remains $13,500, ANGINO '" R R card A. Sadlo re 1.0. N 4_7~81 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs Datel August 19, 1997 , ClRTIrICAT. or S.RVIe. I, Marcy L. Brymesser, an employee of the law firm of Angina 6< Rovner, P. C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' PO-TRIAL IIDIOIlAlfIlUII on the following via postage prepaid, first class United States, requested addressed as follows I Scott A. Freeland, Esquire Rubinate, Jacobs 6< Saba 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Date I August 19, 1997 . , 95-106 LAW OFFICES OF RUBINATB, JACOBS & SABA Scott A. Freeland, Bsqulre Attorney for Defendant 214 Senate Avenue, Suite S03 Camp Hili, PA l701l Telq)hone No. (717\ 731-0988 ROBERT M. DUTCHBR and MARY DUTCHER, his wife, Plaintiffs IN TIlB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANlA vs, DOCKET NO. 9S-S381 KEVIN J, CORMIER, Defendant CIVIL ACll0N - LAW JURY TRIAL DEMANDED DEFENDANT'S PRE-TRIAL CONFERENCB MEMORANDUM 1. FACTS AS TO UAHIUTY: The present action arises from a motor vehicle accident occurring on February 21, 1994 on Route IS, Upper Allen Township. The accident was part of a lal1e multi vehicle chain reaction plle.up Involving twenty.one (21) vehicles listed on the police report. The Defendant, Kevin Connler, was traveling south on Route 15 when his vehlclu entered a patch of dense fog, Immediately after entering the patch of fog, Mr, Connler saw brake lights, but was unable to stop without striking the rear of a vehicle that had been stopped on the roadway due to the multi vehicle accident thaI had occurred In this area of the roadway. This vehicle was allegedly forced Into the rear of the Plaintiffs' vehicle. Defendant Connler had no warning of the traffic conditions prior to the accident at Issue. n. FACTS AS TO DAMAGBS: The Plaintiff had pre-exlstlng degenerative changes In his spine. He had right flank pain with a history dating back to a 1982 motor vehicle accident, It appeara that the Plaintiff sustained an exacerbation to this pre.exlstlng right flank pain, as well as a cervical sprain as a result of the accident at Issue, m. ISSUES pRRllBNTBD: l. Whether the accident In question was an unavoidable accident? 2, Whether the Defendant was presented with a sudden emergency? 3. Whether the Plaintiff was contributorily negligent? 4. Whether the Plaintiffs complaints are causally related to the motor vehicle accident at Issue? IV. MfNBSSBS: 1. Plaintiffs, as on cross examination. 2. Defendant, Kevin J, Connler. 3. Officer M,S. Mclaughlin and other Investigating police officen. 4. Balint Balog, M.D. (By videotaped deposition). S. The Defendant reserves the right to call any of Plalntlfrs treating health CIJ1l provldera. 2 6. Defendant reselVes the right to can any witness listed by the Plaintiffs and to supplement Defendant's list with reasonable notice to the Court and opposing counsel. V. BXlUBITS: I. Photographs of accident scene. 2. Deposition transcripts for appropriste use; and 3. Medical records from Plaintiff's treating physicians. 4. Defendant reselVes the right to Introduce any exhibit listed by the Plaintiffs and to supplement Defendant's list with reasonable notice to the Court and opposing counsel. VI, PROPOSBD S11PULATIONS: I. Authenticity of Plaintiff's medical records. 2. Authenticity of photographs of accident scene, VB. STArns OF SRTI'I RMBNT NEGOTIATIONS: Defendant's last offer was $9,000,00. Plaintiffs' last demand was $IJ.OOO.OO. Defendant has received no counter demand to Defendant's settlement offer of $9.000.00. 3 , ";,,~-,',1;-'(",,,-ei~7't,r;,.,.~ Respectfully submitted, LAW OFFlCBS OF RUBINATB, JACOBS & SABA Dated: 8 !QO/ 97 ~~ ~" --- s~ FRBBLAND, BSQtnRB Attorney for Defendant, Kevin Connler 214 Senate Avenue, Suite 503 Camp Hili, PA 17011 Telephone No, (717) 731-0988 Identification No. 55663 4 . .. I . d'-\ . . . . ~G 211991 c ~ Bil.!d ! c ~ ~ ::f~ j::' !~iilg~ tH . . ..... PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY (Check one) Please IIs1 the fOlloWing case: ( X) for JURY Irlal at the nexlterm of civil court. ( ) for trial wllhout a jury, . ---.--.--......-...--......-........-...........-...---......-...........-................--.........--..--... CAPTION OF CASE (entire caption must be stated In fUll) (chsck one) ROBERT M. DUTCHER and MARY DUTCHER, his wife Assumpsll ( ) Trespass ( X) Trespa~s (Motor Vehicle) ( ) (other) (Plaintiff) vs. " The Irlalllst will be called on February 1 B, 1997 KEVIN J. CORMIER and (Defendant) Trials commence on March 17 , 1997 Pretrials will be held on February 26 , 1997 (Briefs are due 5 days before pretrials.) (The parl~' listing this case for trial shall provide forthwith a copy of the praecipe 10 all counsel, pursuanllo local Rule 214,1,) vs, No, 95-5381 Civil 19__ Indlcale the attorney who will try case for Ihe party who Illes Ihls praecipe: R f chard A. Sa,c!l.ock, Esquire, Angino & Rovner, P.C., 4503 North Front Street, Harrisburg, PA 17110 Indicate trial counsel for other parties If known: Scott A. Freel and, Esqui re, RUbinate, Jacobs & Saba, 214 Senate Avenue. Su i te 503, Camp IIi 11, PA L?Q11 This case Is ready for trial. ~~E'::I~ Signed: Print Name: Dale: January 24, 1997 Atlorney lor: _Plafnt.i..UL.______. i; tt' l!Ji ~:i' -oi '.it. C~" '( " 'J .. -. - I;o'j ". ;\:; ~. ,.l ("\J '.) " , ; ("; ", /'.. .~ t.:"1 j (J ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN TIiE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 95.53111 CIVIL KEVIN J. CORMIER, Defendant CIVIL ACTION. LAW IN RE: STAY ORDER AND NOW, this z ,,~ day of February, 1997, the motion of the defendant for a stay pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S,C,A, app. 5JO is GRANTED with the understanding that the defendant is returning to the United States from a forelan tour of dilly In July of 1997. Upon the defendant's return to the United States, counsel for the defendant Is directed to promptly lis. this mailer fur trial, BY THE COURT. -/J./1 Richard Sadloek, Esquire For the Plaintiffs _ c.....,~ ~"l. .A/d'l 1"f), ., ,.,b,(>' Sooll A, Freeland, Esquire For the Defendant :rlm FilFn-OFFlCE ()~ TI'" "'''T'':'' :OTNW Q7rF.827 (,:I/il: ~2 CU;\I~:';.II;J ~ ..) ... \-1..:\"\ PS'li,jS\ LV/~\~'\ ..-.....- - .' "".. .-.....-...-.- -.,.. --.... PRAECIPE FOR LISTING CASE FOR TRIAL (Musl be Iypewrlllen and submllled In dupllcale) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please IIsl Ihe following case: (Check one) ( X ) for JURY Irlal allhe nexllerm of civil courl. D 10 Cl ( ) f~r Irlal wllhoul a Jury, "r.~ ;::~; -..........-......--.-......---....-.--....-......-.......-.........._._....-.{;l.~.....ra._...... :0 CAPTION OF CASE ~;~. ~ ~:i~'j (enllre capllon musl be slaled In full) (check one) r~ I I "" ;1 ROBERT M. OUTCHER and MARY OUTCHER, Assumpsll :iL ~.~ ~~~:{ '.' '''i hi 5 wi fa t :.:1 :J1 ;t.. Trespass ", {JI :~ ( X) Trespalls (Molar Vehicle) ( ) (olher) (Plalnllff) vs. " KEVIN J. CORMIER, The Irlalllsl will be called on August 12, 1997 (Defendanl) and Trials commence on September 15, 1997' Prslrlals will be held on August 27, 1997 (Briefs are due 5 days before prelrlals.) (The parly IIsllng Ihlr. case for Irlal shall provide forlhwllh a copy of Ihe praecipe 10 all counsel, pursuanllo local Rule 214.1.) vs, No. 95-5381 Civil 19__ Indlcale Ihe allorney who wllllry case for Ihe parly who Illes Ihls praecipe: SaBlock, Esquire, Angina & Rovner, P.C., 4503 North Front Street, Richard A. Harrisburg, PA 17110 Indlcale Irlal counsel for olher parties" known: Scott A. Freel and, Esqu1 re, Rubl riate, Jacobs & Saba I 214 Senate Avenue, Sui te 503. Camp 11111. PA 17011 This case Is ready for trlel. Date: Jul y 22. 1997 Sign Print Name: Richard A. Sadlock. Esquire AIlorney for: ..1'lalnt1Ji..__,__.___. , . "_..."L~V''t'':'.-'".,.. . 0'.:.... ~ :...,...., .~.~,:w.~...>~..ci.,,,~-; PROBERT M. DUTCHER and MARY DUTCHER, his wife. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 95-5381 CIVIL KEVIN J. CORMIER, Defendant CIVIL ACTION - LAW ORDER AND NOW, this ,. day of August, 1997, following notification from counsel for the defendant, the stay of this case pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, SO U,S.C.A, app, 510 Is lifted, The Prothonotary Is directed to list this case for the tenn of civil court commencing November 10. 1997, BY THE COURT. , ,4 /./.- . Hess, J. Richard A, Sadlock, Esquire For the Plaintiff Scoll A. Freeland, Esquire For the Defendant :rlm FHJr) ()'FiCE (F 1 ", Y I '~,,'rlT/t"( . .\ I \,;1 q7 M!0, II ,':; [1: ;1, C'''' . '1"1" \o-'II,:~ ; ; . . '. ;.; -', I l\J~:'< "il'!' :',\ 95-106 LAW OFFICES OF DONALD R. DORBR Scott A. Freeland, Blqulre Attorney for Defcndant, Kcvln J. Connlcr 3907 HaJ1zda)c Drlvc, Suite 706 Camp Hill, PA 17011 Telq)bonc No. 17m 731.()988 ROBBRT M. DUTCHBR and MARY DUTCHBR, his wife, Plaintiffs IN niB COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLV ANIA vs. DOCKET NO. 95-5381 KBVIN J. CORMIBR, Defcndant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPB TO ATrACH VERIFICATION TO DBFBNDANT'S ANSWBR WlnI NBW MATI'BR TO PLAINTIFFS' COMPLAINT TO nIB PR01HONOTARY: Kindly f1Ic the attached Verification to Defendant's Answer with New Matter to Plaintiffs' Complaint filed with this Court on or about February 13, 1996 In the above referenced matter. Respectfully submllled, LAW OFFICES OF DONALD R. DORBR &::..QmRB Allomey for Defendant, Kevin J. Connler 3907 Hartzdale Drive, Suite 706 Camp Hili, PA 17011 Telephone Number (717) 731-0988 Identification No, 55663 95-106 ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN 11IB COURT OP COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLV ANJA VS, DOCKBT NO. 95-5381 CIVIL ACTION - LAW JURY TRIAL DBMANDBD KBVIN J. CORMIER, Defendant VBRIPICATION I, Kevin J. Connler, verify that the statements made In the foregoing Defendant's Answer with New Malter to Plaintiffs' Complaint are troe and correct to the best of my knowledge, Infonnatlon and belief, I understand that false statements herein are made subject to the penalties of Pa.C.S.A. 04904, relating to unsworn falsification to authorities. Dated: 1.3 1fl5 'It {f/~ n J, Connler, Defendant '5-106 ROBBRT M. DUTCHBR and MARY DUTCHBR, his wife, Plaintiffs IN 'niB COURT OF COMMON PLEAS CUMBBRLAND COUNTY, PBNNSYLV ANIA VS. DOCKBT NO. 95-5381 CIVIL ACll0N - LAW JURY TRIAL DBMANDBD KBVIN J. CORMIBR, Defendant CBRllFICATB OF SBRVICB SC01T A. FRBBLAND, BSQUIRB, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and COlTllCt copy of Praecipe to Attach Verification to Defendant's Answer with New Matter to Plaintiffs' Complaint to be selVed by reaular first class mall upon: Richard A, Sadlock, Esquire Angino & Rovner, P,C. 4503 North Front Street Harrisburg, PA 17110 /0)) 5/:;tr , . Date .~. Scoll A, Freeland, Esquire Allomey for Defendant ~" . " il,' "d i ," ",1 ('; , \" . , IF:' .., I lJ' , , I,' I I,' , I;, -- j , I ~i i r ~: \ I , 1, , L I' " U 4..\ ej~ ~I~ij ~llll~."!~~ _~!ii~g! ~!i ~Ea~ ~ 95-106 LAW OmCBS OF DONAlD R. DORER ScoU A.. Freeland, Blqulre Attomoy for Defendant, Kevin J. Connler 3907 HutzdaIe Drive, Suite 706 Camp Hill, PA 17011 T..I~ No. (7171 731-0988 ROBBRT M. DUTCHBR and MARY DUTCHBR, his wife, Plaintiffs IN 11IB COURT OF COMMON PLBAS CUMBBRJ...A.ND COUNlY, PBNNSYLV A.NIA VS. DOCKBT NO. 95-5381 CML ACTION - LAW JURY TRIAL DBMANDBD KBVIN J. CORMIBR, Defendant PRABCIPB TO ATI'ACH VBJUIlICADON TO DBPBNDANT'S PB11110N FOR STAY OF PROCBBDINGS PURSUANT TO SOLDIERS' AND SAILORS' CIVIL pm JAR ACT TO 11IB PR011IONOTARY: KIndly file the attached Verification to Defendant's PetItion for Stay of ProceedInas Punuant to the Soldlen' and Sallon' Civil Relief Act filed with this Court on or about January 4, 1996 In the above referenced malter. Respectfully submitted, LAW OmCBS OF DONAlD R. DORER S~-:mQmRB Attorney for Defendant, Kevin J. Connler 3907 Hartzdale Drive, Suite 706 Camp Hili, PA 17011 Telephone Number (717) 731-0988 Identification No. 55663 .-..._....;;.-~~_... 95-106 ROBBRT M. DUTCHBR and MARY DurcHBR, his wife, Plaintiffs IN 11IB COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLV ANIA VS. DOCKBT NO. 9.5-.5381 CML ACTION - LAW JURY TRIAL DEMANDED KEVIN J. CORMIER, Defendant VBRIFICATION I, Kevin J. Connler, verify that the lIItCments made In the fOl'Clolna Defendant's Petition for Stay of Proccedlnas Punuant to the Soldiers' and Sailors' ClvU Rellef Act arc true and correct to the best of my knowlcd&c, lnfonnation and belief. I undcratand that falle atatemcnll herein arc made subject to the pcnaIties of Pa.C.S.A. 14904, relatlna to unsworn falslftcatlon to authorities. Dated: 'I J AN 9ft; ~~,- '''106 ROBBRT M. DUTCHBR and MARY DUTCHBR, his wife, Plaintiffs IN mB l uF COMMON PLBAS CUMBBRL. J COUN1Y, PENNSYLVANIA vs. DOCKET NO. 95-5381 CIVIL ACTION - LAW IURY TRIAL DBMANDBD KBVIN I. CORMIBR, Defendant CBRTIFlCATB OF SBRVlCB SCOIT A. FIUIBLAND, BSQUIRB, hereby certifiCII that he Is the attorney for the Defendant herein, and that he ClulICd a true and correct copy of Praecipe to Attach Verification to Defendant's Petition for Stay of Proceedln,s Pursuant to the Soldiers' and Sailors' Civil Relief Act to be ICrved by reJUlar first cia.. msll upon: R1chanl A. Sadlock, Esquire An,lno &. Rovner, P.C. 4503 Nonh Front Street Harrisbul'Jl, PA 17110 loJ/5 )q(p . Date /~:~,"m Attorney for Defendant f;': ...,' . [' ,-. .' ~III' (',': . ': .. fin, J -' 1'1 , '. J <:," '~J 'I (-l j. -: _~I, , t..c it,j 1.:.. (.) r ~.L (..: " ,q " U L'I U ei; !I~: ~ClIl~."~~. ~9~ii~t. ~ji !Ea~ ... . ~ . v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-5381 civil Term ROBERT M. DUTCHER afld MARY DUTCHER, hi. wife, plaintiffs REVIN J. CORMIER, Defendant JURY TRIAL DEMANDED oaD.. AND NOW, thie ~~day of '3.ut L , 1996, after due coneideration of the attached petition to compel an.wer. to Interroqatorie., it ie hereby ORDERED that Defendant Revin J. coraier provide the reque.ted anawer. and/or document. within "3 ~ day. of .ervioe of thi. Order or ahow oauae why euch an.wer. and/or docuaent. are bainq withheld. Failure to comply with this order will result in sanction. as provided by Pa. R.civ.P. 4019. J. ~.i"'rh;:4t-""""",;,:. , ._ .n ~~T.'" _",L.;i."-..-....._,,: AlEI}{)FACE 0;: 1]" rr!.)l~.(1~'OTNW 96 .ltm I a PI! :11 16 CU'II)' '," " " ,"I' i\i ,~ I.... . .1. \'.'." I PENNSYLVANIA \1 ; . .. ROBERT ". DUTCHER anlS I IN THE COURT or COMMON PLEAS IlARY DUTCHER, hb wUe, I CUMBERLAND COUNTY, PENNSYLVANIA I plaintiffa : CIVIL ACTION - LAW : v. NO. 95-5381 civil Tera : KEVIN J. CORMIER, I : DefenlSant . JURY TRIAL DEMANDED . 'Lalnl.'" 110'1'1011 10 COlII'lL DUCOV_' O' D.'mlDAII'l' anI. J. COUlD plaintiff., by and throu9h their attorneya, An9ino , Rovner, P.c., reepeotfully move thi. Honorable court to oompel Defendant Kevin J. coraier to file full and oomplete an.wer. to Plaintiff'. lSi.covery reque.t. for the followin9 rea.onal 1. The inetant aotion wa. oODanoelS by the fiUn; of a complaint on ootober 10, 1995. 2. servioe waa aooepted on ootober 26, 11195, anlS on Noveaber 27, 1995, ooun.el for Defendant entered hi. appearanoe. 3. On November 28, 1995, plaintiff. forwarlSelS to Defendant Kevin J. corai.r Interro9atori.. anlS Reque.ta for production of Document.. copie. of thes. diaoovery raqueat. are attaohed hereto a. Bxhibit. A and B. 4. On February 1, 1996, Defendant Kevin J. cormier filed an An.wer to Plaintiffa' complaint with New Matter. 5. On February 22, 1996, plaintiff. filed a Reply to Defendant'e New Matter. IUII/eLII , : - ~ ~ ,~~~1'i4~_~_."~'''>''~_'~"_''__.~~~~~H'''1.~rtt._~:~r~-~;t~mf~:~..~~;..- Docuaent.. . 6. On February a, 1996, Defendant Kevin J. conier forwarded to plaintiff. Interrogatorie. and Reque.t for Production of Plaintiff.' Interroqatorie. are attached hereto a. Exhibit A. 7. On rebruary all, 111116, plaintiff. reeponded to Defendant'. Reque.t for Produotion of Document., and on March 15, 111116, plaintiff. an.wered Defendant'. Interroqatorie.. 8. On March 18, 11196, Defendant re.ponded to plaintiffe' aeque.t for Production of Document.. II. To date, Defendant Ksvin J. Cormier ha. not re.ponded to Plaintiff.' Interrogatorie. and .aid re.pon.e. are overdue. 10. 8y letter dated February a6, 19116, Plaintiff'. coun.el wrote to coun.el for Defendant Kevin J. conier and reque.ted re.pon.e. to the Interrogatorie. and Reque.t for Production of Docuaent.. A copy of this letter i. attached hereto a. Exhibit 8. 11. Aqain, by letter datsd May 24, 1996, Plaintiff.' coun.el wrote to coun.el for Defendant Kevin J. cormier and reque.ted A copy of this re.pon.e. to the out.tanding Interrogatorie.. letter i. attached hereto as Exhibit c. 12. Defendant Kevin J. cormier ha. failed to comply with all the di.covery reque.t. a. required by Pa.R.C.P 4005 and 4006. 13. All of the discovery sought by Plaintiff. through their Interroqatorie. i. relevant to the instant action. 14. Defendant Revin J. cormier ha. had more than e.ple ti.e to re.pond to Plaintiff.' Interrogatorie.. 15. Our Rule. of civil Prooedure provide for the liberal granting of di.covery. 16. Pa.R.C.P. 4019 providee that upon motion of a party, the Court can .ake an appropriate order when a party "fail. to .ake di.covery." Pa.R.C.P 4019(a) (viii). 17. Plaintiffe, therefore, believe that an.wering ell of Plaintiff.' diecovery reque.te would not burdsn or oppre.. Defendant Revin J. cormier. 18. Plaintiff. are repreeented by Richard A. sadlock, I.quire, of the fir. of Angino , Rovner, P.C., 4503 North Front street, Harri.burg, PA 17110, (717) 238-6791. 19. Defendant Revin J. cormier ia repre.ented by Scott Freeland, Eequire, of the Law Offioe of Donald R. Dorer, 3907 Hartldale Drive, suite 706, Camp Hill, PA 17011, (717) 731-0988. WHEREFORE, Plaintiff. respeotfully request that thia Honorable Court order Defendant Kevin J. cormier, to re.pond to Pleintiff.' Interrogatorie.. Plaintiff. further request that should Defendant Revin J. Cormier fail to comply with the Court order, then eaid Defendant .hould be prohibited from presenting any testimony at the trial of thi. matter, precluded from entering defen.ee to Plaintiff'. clai.. at trial, r.quired to pay Plaintiff'. attorney'. fe.. and oo.t. a..ooiated with the in.tant Motion, and .uoh other .anetion. a. the Court dee.e appropriate. ANGINO , ROVN Dat.1 Jun. la, lV96 _ .':E~t\-'::;~::;'.~~_~4-'f'_ _ ~'1c-j "110 '!Ii \1 i I , I (I "0 .-;"'- , , ROBERT H. DUTCHER and MARY DUTCHF~, hi. wife, Plaintiff. IN THE COURT OF COHHON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : v. : : NO. 95-5381 civil Term : : : REVIN J. CORMIER, Defendant JURY TRIAL DEMANDED lLaIKTI...' IKTZRROGATORIB. DIR.~.D TO D..KKD~ TOI Revin J. cormier, Defendant and hi. coun.el, Scott A. Freeland, Elquire ANGINO , Datel November 28, 1995 76601/KLH " - I Plaintiffs, through their attorney, hereby propound the following Interrogatories to defendants pursuant to Pennsylvania Rule of Civil Procedure 4006 to be answered within thirty (30) days from service thereof. These Interrogatories shall be deemed to be continuing Interrogatories. If, between the time of your answer to said Interrogatories and the time of the trial of this case you, or anyone acting on your behalf, learns the identity and whereabouts of any other witnesses not identified in your said answers, or if you obtain or become aware of additional requested J.nformation not supplied in your answers, you shall promptly furnish the same to plaintiffs' attorney by a supplemental answer. For the purposes of these Interrogatories, "you or "your" refers to the defendants and their files and all other persons, !Went: or representatives of the defendants and their fUes. You shall further include all persons on whose behalf defendants prosecuted this action and all persons who will benefit or be legally bound by the results of this action. Your answer to the Interrogatories shall reflect and contain the knowledge of all of the above persons. References to plaintiff und/or defendant shall be interpreted as singular or plural, depending upon the particular circumstances of each case. The term "description" or "describe" as used herein shall mean that the defendants shall set forth the name and address of the author or originator, dates, title or subject matter, the present custodians of the original and of any copies and the last known address of each custodian. "Document" shall mean any written, printed, typed or other graphic matter of any kind, whether handwritten, typed or printed, whether distributed or undistributed. It shall include without limitation letters, memoranda, articles, studies, notebooks, diaries and notes, as well as all mechanical and electronic sound recordings or transcripts thereof in the possession or control of the defendants or known by them to exist. It shall also mean all copies of documents by whatever means made. Answer each Interrogatory in the space following the Interrogatory. Supplemental sheets may be attached for answers which require additional space. please take notice that you are required' to serve upon the undersiyned your answers in writing within thirty (30) days pursuant to the Pennsylvania Rules of Civil Procedure. These Interrogatories are deemed continuing and supplemental answers should seasonably be provided. 3. If you were not the owner of the motor vehicle but were the operator, give the name and address of the party who gave you the authority to use the vehicle you were driving at the time the accident in question occurred and state what instructions, if any, were given to you prior to operating the vehicle. ANSWER 5. List the names, addresses and telephone numbers of each faot witness you intend to call at trial, and briefly summarize their Anticipated testimony. ANSWER 6. Did you consume any alcoholic beverage, sedative, tranquilizer, marijuana, cocaine, hashish or other drug, medication or pill during the eight hours immediately preceding the incident referred to in the Complaint? If so, statel (a) the nature, amount and type of item consumedl (b) the amount of time over which consumed, (c) the names and addresses of any and all persons who have knowledge as to the consumption of those itemsl and (d) the names and addresses of the physician (s) or other person(s) who gave, purchased or prescribed any of the said items. ANSWER 7. State whether or not the vehicle which you were driving had any mechanical defects and, if 80, state the nature of same. ANSWER B. State whether you were performing any act in connection with your employment at the time of the incident in question. ANSWER 9. Give the carrier naml), policy number and policy limits for each and every policy insuring you against the claims made in the instant action. ANSWER 10. State the name, Address .,ncl occupation of any person whom you expect to call AS an expert witncss at trial, and with regard thereto, statel (a) the subject matter on which the expert is to testify, (b) the facts and opinions to which the expert is to testify, (c) a summary of the grounds of each opinion, (d) the name of any report, memorandum or transcript used to substantiate each opinion, (e) any code, regulation or standard, governmental or otherwise, alleged ?y the expert to have been violated, in whole or in part, (f) any standard scientific principle alleged by the expert to have been violated, in whole or in part, (g) any standard manufacturing principle alleged by the expert to have been violatrd, in whole or in part, and (h) the date, name and author of any textbook, document or other source relied upon by the expert in rcndering his opinion and testimony. ANSWER 11. With regard to each individual you expect to call as an expert witness at trial, state the following: (a) date of birth, (b) name and address of present employer, and if self- employed, name and address of the business, (c) full formal educational background, with date of attendance and degrees obtained, (d) a list of all writings and/or documents of any kind prepared in whole or in part by the expert, and (e) names and addresses of all persons, firms or corpora- tions who have retained this expert in the past ten years to render a report or testify as an expert witness. ANSWER 12. state your whereabouts for the twenty-four hour period prior to the incident in question. ANSWER lJ. state the purpose of the trip or journey in which you were involved at the time of the incident in question, including the exact time and point of departure, destination and time and place of all stops and departures. ANSWER 14. As of the time of the incident referred to in the Complaint, please state whether or not you were familiar with the looation where the occurrence happened and state the nature and extl!nt of your familiarity, indicating the number of times you had visited the location where the incident took place within the last year. ANSWER 15. Please describe as fully aR possible the weather and road conditions at the time and location of the alleged occurrence, setting forth conditions of light, precipitation and temperature. ANSWER l6. Describe as accurately as possible what you were doing immediately prior to this incident, and all circumstances surrounding this incident. ANSWER l7. state the following as accurately as possiblel (a) your speed when you first viewed Plaintiff's vehicle, (b) the distance between your vehicle and Plaintiff's vehiole prior to tho accident, and your speed at that time, (c) the distance from Plaintiff I s vehicle when you first applied your brakes, (d) any efforts made by you to avoid Plaintiff's vehicle, (el if your car skidded, the distance from Plaintiff's vehicle when the skid began, and (f) the amount of feet your vehicle required to stop at time of collision with full application of the brakes and travelling at the speed you were going. '.'''"'',''.''',.-'.-.''':~:.:- ANSWER lB. state exactly how you contend the incident oocurred. ANSWER 19. Do you contend that the plaintiff was contributorily negligent or that the Plaintiff assumed the risk of being injured? If so, state precisely the facts that support your position. ANSWER 20. Are you or anyone acting on your behalf in possession ot or know of the existence of any photographJ, blueprints, sketches, drawings, diagrams or plans of the instrumentalities, locality, equipment, tools or any other thing or matter involved in the incident in suit? If so, statel (a) the nature of the document, the name(s) and address(esl of the person(sl preparing such document, and the date of its preparation, (b) the name(s) and address(esl of the person(sl presently having possession or custody of each such document, (c) the specific subject matter of the document, (dl the date it was made or taken, and (el what the document purports to show, illustrate or represent. ANSWER ~ 21. Have you ever been charged for any violation of the motor vehicle traffic laws or ordinances of any state or municipality arising from the incident involved in this action. If so, statel (al the specific violation with which you were charged, (b) the manner in which you were charged, i.e. citation, (cl by and before whom you were charged, (dl the verdict rendered and/or fine paid regarding said violation, and (el the court involved. ANSWER 22. Have you or anyone acting on your behalf conducted any investigations of the incident which is the subject matter of the Complaint? If so, identifYI (a) each person and the employer of each person who con- ducted any investigation, (b) the dates of investigation, and (c) all notes, reports or other documentation prepared during or as a result of the investigations, and the identity of the person who has possession thereof. ANSWER 23. If your attorney has completed an inve.tigation, pl.... provide the name, address, and telephone number of all witn..... identified in the investigation. ANSWER 24. At the time of the incident referred to in the Complaint, did you have a valid license to operate a motor vehicle? If so, statel (a) issuing state, (b) expiration date, (cl operator's license number, and (dl any restrictions, qualifications or conditions on said license. ANSWER ....".,..,.,..... 25. With regard to any restrictions, qualifications or conditions on your license, pleasu statel (al a full and complete description including th~ exact and precise language or wording on your license, and (bl the time, in months and yenrs, thnt such wording appeared on your licensu. ANSWER 26. At the time of the incident referred to in the Complaint, did your license contain any reference to any prior actions, violations or offenses committed by you? If so, please statel (al the date, time and place, and (bl the precise language or wording of each action, viola- tion or offense as it appeared on your license. ANSWER I 27. At the time of the incident referred to in the Complaint, did you have any condition for which you wore eyeglasses, or for which eyeglasses were prescribed? statel If so, (al a description of the condition, (bl whether you were wearing eyeglasses at the time of the incident, (cl the name and address of the person who prescribed the eyeglasses, and I j I ~ (dl a description of accident referred and uncorrected. your vision at the time of the to in the Complaint, both corrected ANSWER I l ! ~ 2B. At the time of the occurrence, did your motor vehicle license refer in any way to the use of eyeglasses by you while operating a motor vehicle? If so, please give full details as to any reference to eyeglasses on your motor vehicle operator's license. ANSWER 29. Have you ever pruviously beun involved in a law suit? If so, statel (al the date and location of the action, (bl the nature of the action, (cl the name(sl and addrcss(esl of the party(iesl, (dl the disposition of the action, and (el the name and address of the attorney who represented you. ANSWER 30. Have you ever been convicted of a crime? If so, statel (al the nature of the conviction, (bl the date and location of said conviction, and (cl the penalty imposed. ANSWER 3l. If you have served time in prison as a result of any conviction, for each conviction give the name of the prison, the length of the term served and the date ot release. ANSWER . 32. Have you ever received any citation or summons of a criminal nature resulting from the operation of a motor vehicle? If so, statel (al the nature of the citation or summons, (bl the final disposition, and (cl the court involved. ANSWER 33. !lave you ever had an operator I s license suspended or revoked? If so, statel (a) time and location of suspension or revocation, (bl period of time of said suspension or revocation, including dates, (c) reason for such suspension or revocation, and (d) whether such suspension or revocation was lifted. ANSWER 35. Identify all exhibits which you expect to offer into evidence at the time of trial of this case. ANSWER 36. state whether there was an accident report made regarding the subject incident, and, if so, the place where such report was filed. ANSWER I 37. Are you aware of any newspaper articles concerning the lncident referred to in the Complaint? If so, state the date of publication and newspaper involved. ANSWER, i , j 1 I I , I . -:", Th... Int.rro9atori.. ahall b. d.emad to be continuin9' If between the time of your anawer. to the.e Interro9atorie. and the ti.e of trial of thil ca.e, you or anyone actin9 on your behalf learn the identity and wher.about. of any other witne..(e.) not identifiad in your anlwera, or it you obtain or become aware of additional reque.ted intormation not supplied in your an.wer., you .hall promptly furnish .am. to the under.iqned by .upplemental an.wer.. . S re No. 11 th Front str..t Harrilbur9, PA 17110 (717) 238-67111 Coun.el for Plaintiff. Date, November 28, 1iiS " ,'''' ..;u " flf.... ! .\.. ',' CKRTI.IC.TB O. .KRVICI I, Marcy L. Moy.r, an .mploy.. of the law firm of An9ino · Rovn.r, p.e., do h.r.by c.rtify that I am this day ..rvin9 a true and corr.ct copy of PLAIMTI.." INTERROGaTOaIl1 DlalCTID ~o DI.~ on the followin9 via pOlt.9. pr.paid, firlt cia.. unit.d stat.., r.qu..t.d .ddr....d al follow.: Scott A. Fr..land, Elquir. LaW Offic.. of Donald R. Dor.r 3'07 Hartzdal. Driv. suit. 706 Camp Hill, PA 17011 Mf1f/:,"r!n~ oat.' Novemb.r 28, 1"5 . ......~..... " C4 0;"" (~') "1-... ANGlNO & ROVNER, PI CI HIIOU C. OI.ION tdlOWIL I, IlAYmItY "u...J',lll-.'" UWUNClf,lAlONl IlAWII L IIIIIIlIlOI I1VIlIN .. fIIlIUIN IOL(lNOIl Z. WVlltY lOlli'll M, DOaIA ICIIMI It MIUWl "'Y UIYMAIl DAY1ll L wn MIOlAIL"1lOI1It .~o.lIIUIWI _.___u rWdY ,.-. . IICIIAID A. IAlILOCIt DAY1llI. WIIIIIIlCI IJI11lD III 1lIE BEST LAWYBS -1Il- AMWCA ~ C. AIlOD<<I IIEIL UOY!ID February 26, 1996 scott rre.l.nd, Esquire Law Offic. of Don.ld R. Dorer "01 Hart.d.l. Dr, ste 706 Caap Hill, PA 11011 01 Dut:.char v. corai.r Dear Icot.~a Pl.... i.ediately respond to a1 Request for Production of Doc\lIIent. .nd answer the Interrogetor ea. Thank you. RU/ala I I , I 'I IUU/KLK , ..01 NOATH fAONT STAUT. HAAAIIIUAO. PA 11110."01 111TlISl-ll1tl 'AX (111) 1....'0 I - I ~.~ (') ,,,.... ('I " I.ISTElllN NUllLE C, llUllN MICHAr~ I, NAVrrSKV I,AW~ENCE F, BA~IlNB DAWN L IENNINIlS STEPHEN ~, PEDERSEN SIlLllMON Z. K~EVSKV 10SEPH 101, OO~IA lOSEPH M, MELILLO 1t~~y S, HYMAN DAVID L LUTZ MICHAEL e. KOSIK PAMEU 0, SHUMAN ~ICHA~D A,IADLOCK DAVID I, WISNESKI ANGlNO & ROVNER, P.C. TIlE 8FST LAWYERS -IN- AMERICA ~ICHA~D C, ANDINO NEIL I, ~OVNER May 24, 1996 Scott Freeland, Esquire Law Office or Donald R. Dorer 3907 Hartzdale Drive, suite 706 Camp Hill, PA 17011 RE' Dutcher v. cormier Dear Scott: As of this date, we have not yet received Defendant's answer. to Plaintiff'S Interrogatories. Please i\lUDsd1ately provide me with the enswer. within 10 days, or I will rile a Motion to Compel. Thank you. "'." RAs/ala .,.! BU41/KLIl 4103 NORTH FRONT STREET, HARRISSURG, PA 11l10.1701 (111) 238-81BI FAX (111) 238-&810 . a"~I'lcaT. 0' 1..Vla. I, Marcy L. Moyer, an e.ploye. of the law fira of Angino . Rovner, P.c., do hereby certifY that I am thi. day .ervin9 a true and correct copy of 'LaIIl'l'I,rl' .0'l'10. TO COII'.L DIICOVDW or D"~ a~l. J. CORKID on the following vie po.taie prepaid, fir.t cla.. United state., reque.ted addre..ed a. follow. I Scott A. Fr.eland, E.quire , J,aw Office. of Donald R. Dorer "3'01 Hartzdele Drive suit. 706 Caap;Hill, PA 17011 I. ; , , . . I ! t ~i/l cy . MOY~ . /. 'J Date I June 12, 1996 ~ 0 io; ~ In " ... ,~A 1~" ; ~3. ~ , ' u.."\~ ..; "'r.;. - , ~ .'lv..J ~ fL -:. .,~.te ~J !>. 'n . ". IJ c::j .. \5 ~ i:S :J ......... .,. -::::.. ~ .... j ~ . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DUTCHBR Vs. No. 9553111 CORMIBR NOTICE OF RECORD DEPOSITION Tal RICHARD SADLOCK, BSQ SCOTI' A FRBELAND (REQUBSTOR) PLBASE TAKB NOTICB THAT THB FOLLOWING RECORD DBPOSITION WILL BB TAKBN AT .9.0 DISSTOR ST"ST, PBILADSLPBIA, PA OR AT THE TIMB INDICATBD. DSPOnHTl TINIII ....-------------- OFFICB BQUIPMBNT SVCS XBROX CORP 10:10 A.M. 10:15 A.M. There will be no interrogation of the deponent, and it is expected that no attorneys will be present. If there is any objection raised by opposing counsel, deponent will be notified. The price for the record is as follows: first fifteen pages m $19.00 and each additional page m $.75 Thia depoaitioD i. for the purpo.e of copying only. A copy of the above notid. ..a aailed on " A'M'ORNBY FOR THB DBFBNDANT By: .11en ROaaDO MBDICAL LBGAL REPRODUCTIONS, (2151 335-35B1 . , t; . . 1 , Bnbi subpoena(sl return card Copy of CpUnsel "2111!l7 INC. C'1 ... ('J f.. .. .. ,,- ,~ - g~ :::: 0- :~~ c:> - ?~ /a t::="'s ~ \D 3 C1' " .. ROIERT N. DUTCHER and , IN THE COURT OF COMMON PLEAS NARY DUTCHER, hi. vir., , CUMBERLAND COUNTY, PENNSYLVANIA I Plaintiffs , CIVIL ACTION - LAW I v. I NO. 95-5381 Civil T.rm I !tIVIN J. COlUlIER, , I D.f.ndant , JURY TRlAL DEMANDED naJ:II'l'II'I'.' ...LV '1'0 .n 1IA'l"l'.. AND NOW co.. the Plaintiff., by and through th.ir attorn.y., An;ino , Rovn.r, P.C., and h.r.by enter the rollowin9 Reply to the N.v Natt.r of D.f.ndant .. rollow., 23. D.f.ndant'. av.r..nt doa. not r.quire a ra.pon.iv. pl.adin9. Plaintirr. incorporate their complaint h.r.in by r.fer.nc.. 24. Daf.ndant'. av.rment i. a conclusion of law to whioh no r..pon.ive pl.adin9 i. required. To the extent the averment may b. d....d factual, it is hereby speoifically denied. By vay of .aplifioation, Plaintiff Robert N. Dutcher wa. not n.gli9.nt in .ny way. Th.r.rore, the Pennsylvania comparativ. Negligenca Aot do.. not .pply to the in.tant action. Further, all or Plaintiff.' injuri.. and dama9.. are recoverabls in the instant action and are in no way r.duced. 25. Der.ndant'. averment is a conclusion or law to which no r..pon.iv. pl.adin9 is required. To the extent the averment may b. 16023/1Wt . ~ d....d factu.l, it is herllby .pecifically deni.d. By way of a.plification, all of Plaintiffs' injuries and da.ai.. ar. r.cov.rabl. in the instant action. Neither the penn.ylvania No- F.ult In.uranca Act nor the Pennsylvania Motor Vehicle Financial R..ponsibility Law in no way li.it. the damag.. Plaintiff. .ay r.cov.r h.r.in. 26. D.f.ndant'. averment is a conclusion of law to which no r..pon.iv. pl.ading i. required. To the extent the averm.nt may be d....d factual, it is her.by specifically deni.d. By way of aaplification, Plaintiff.' Complaint doe. stat. a caus. of action upon which r.li.f .ay b. granted. 27. D.f.ndant'. av.rm~nt i. a conclu.ion of law to which no r..pon.iv. pl.adini i. r.quired. To the extent the aver..nt .ay be d....d factual, it is hereby specifically denied. By way of .aplification, Plaintiff. did not assume the ri.k of their injuri... Furth.r, a. previou.ly stated herein, Plaintiff Rob.rt N. Dutch.r was not negliqent or car.l.... All of plaintiff.' injuri.. .nd damage. are recoverable in the instant action. 28. D.f.ndant's averment is a conclusion of law to which no r..ponsive pl.ading i. required. To the extent the averment may b. d....d factu.l, it is hereby specifically denied. By way of ..plification, D.f.ndant'. averment lacks the specificity required by the p.nnaylvania RUle. of civil Procedure. Further, all of Plaintiff.' injuries and damages were caused solely and dir.ctly a. . ~ a r..ult of the n.ilii.nc., carelessne.., wantonn.s. and r.ckl...n... of the instent Def.ndant. at. D.f.ndant'. .v.ra.nt i. a conclusion of law to which no r.sponalv. pl.adin9 i. r.quir.d. To the .xt.nt the av.raent .ay be d....d factual, it i. h.r.by sp.cifically denied. By way of aaplifloation, Plaintiff.' Complaint was fU.d w.ll within the applioabl. .tatut. of li.itations. 30. Defendant'. av.ra.nt do.s not require a r..pon.iv. pl.adini. Pl.intiff. incorporat. th.ir Complaint h.r.in by r.f.r.no.. WHDlroRI, Plaintiffs r.lp.ctfully requ.st thi. Honorabl. Court to di..i.. D.f.ndant'. Answ.r and N.w M.tt.r and ent.r judvaant in th.ir favor aiainst the D.f.ndant. ~-----:::.' - ANGINa '_ROVNIR, P.~.. :> -~ //) .--.::: ....----- Rich.rd A. sadlock, E.quir. I.D. No. 47alll 4503 North Front str..t Harrilburi, PA 17110 (717) 238-1S791 Counsel for Plaintiffs Dat.1 F.bruary aa, lttlS 9D~.IC!&.rOll Wa, ROIIR'I' N. DUTCHER and MARY DUTCHER, hb wife, Plaintiffa haya raad the forewoinw .LaI.,I".' ..'LW 10 ... ..~.. and do .wear or afUn that tha fact. .et forth in tha fora9oini ara true and corract to the be.t of our knowledie, information and beliaf. W. undar.tand that this Varification i. ..de .ubject to the penaltia. of 11 pa.c.s.A., section 41104, relatinCJ to un.worn tal.itlcation to authoritie.. 7110a/1lLII ~.. 'It ) 'f '.U~ o r N. Du ~r "--7J7{l(.{tt (!. JuU.J Mary cher . O"~I.IQ&~. O. ...VIO. I, Marcy L. Moy.r, an .mploye. of the law firm of Aniino , Rovn.r, P.c., do h.r.by c.rtify that I a. this ~ay ..rvini . true .net corr.ct copy of .ulnl".' ..'LY 'l'O ... Dna on the followin; vi. po.t.i. propaiet, fir.t cla.. United Stat.., r.qu..t.et .ddr....et .. follow. I 'cott A. rr..l.nd, laquir. Law Offic.. of Donald R. Dor.r 3107 H.rt.dal. Driv. lu1te 706 c.-p Hill, PA 17011 Mi!l~or:r71(~ ~ Dat.1 r.bruary:aa, 11111I '-. (" I; '":> t... l:.' ,.. 6i , W,. r..t (~ /1-. , . h:~' ~~ , J Ij[.~ . ;J .. ....."" dO lJ:;/:, ". .. j re / " .1.... [,'. ..':" h, \ ~) 'J U <:; . U , , _,_".,.'..,...... __d ,y~..-~._"'__r..'_~;._~~~~~i}~~:~--u~~'.!.~~?l~'~~~:~.,'.~~ ~~~,~".; ;;;...'..;.,....~, T,-,.~~-;-'J"'..,';..;;<-~ i,;.:;,.... ROBERT M. DUTCHER and MARY DUTCHER, his wife. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACfION - LAW 95-5381 CIVIL TERM JURY TRIAL DEMANDED VS. KEVIN J. CORMIER, Defendant IN RE: PETITION FOR STAY OF PROCEEDINGS PURSUANT TO THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACf ORDER AND NOW, this 2.~' day of February, 1996, It appearing that the parties have reached an agreement, at the request of counsel for the parties, the argument set for Thursday, February 1. 1996, Is continued generally. BY THE COURT, J'1/L Richard A. Sadlock, esquire For the Plaintiffs Scott A. Freeland, esquire For the Defendant _ ~ ....<>.~... n";..c~.c. ~I ~ I q " ' -q .s. 'f. :rlm 7-'1' '..~ . F,1 r,"'\"o-:nrf: . ..J I "". (17 - -: "-':'-"I\"''''r:V ". ..""'VIt"II 'j'; FFn ~.., r: ',' ,. "8 . '-I ... (" I-j 1.1" CU.\!I3i.:.li'-~XJ CCUN/Y PL:NN[:\1.I:",\H 95-106 LAW OFFICES OF DONALD R. DORER Scolt A. Freeland, Esquire Attorney for Defendant 3907 Hartzdale Drive, Suite 706 Camp Hili, PA 17011 Telephone No. (717\ 731-0988 ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN THB COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLV ANlA vs. DOCKET NO. 95-5381 CIVIL ACnON . LAW JURY TRIAL DEMANDED KBVlN J. CORMIER, Defendant NonCB - ANSWER WITH NBW MATIBR YOU HA VB BBBN SUED IN COURT. If you wish 10 defend against the claims set forth In the following pages, you musl take action within lwenly (20) days after lhls Cross Claim and Nollce are served by enlering a written appearance penonally or by attorney and filing In writing with lhe Court your defenses or objections to lhe claims set forth agalnsl you. You are warned thaI If you fall to do so, lhe case may proceed wlthoul you, and a juclament may be entered against you by the Court without further notice for any money claimed In the Cross Claim or for any olher claim or relief requesled by lhe Plalnllff. You may lose money or property or olher righls Importanllo you. YOU SHOULD TAKB THIS PAPER TO YOUR LAWYER AT ONCB. IF YOU DO NOT HA VB A LA WYBR OR CANNOT AFFORD ONB, GO TO OR TELBPHONB mB OFFlCB SET FORm BBLOW TO FIND OUT WHBRB YOU CAN GBT LBGAL HBLP. CUMBERLAND COUNTY Court Admlnislrator Fourth Floor Cumberland Counly Courthouse Carlisle, PA 17013 (717) 240-6200 I . I t 95-106 LAW OFFICES OF DONALD R. DORBR Scott A. Freeland, Esquire Attorney for Defendant 3907 Hartzdale Drive, Suite 706 Camp Hili, PA 17011 TelCj)hone No. (717) 731-0988 ROBERT M. DUTCHER and MARY DUTCHBR, his wife, Plaintiffs IN lHB COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLV ANlA vs. DOCKBT NO. 95-5381 KEVIN J. CORMIER, Defendant CIVIL ACTION - LAW JURY TRIAL DBMANDED NOTICIA Le han demandado a usted an la corte. SI usted qulere defenderse de estas demandas expuestas en las paginas sigulentes, usted tlene vlente (20) dias de plazo al partir de la fecha de la demanda y la notlficacion. Usted debe presentar una aparlenc\a escrlta 0 en persona 0 por abogado y archivar en la corte en fonna escrlta sus defensas 0 sus obJeclones alas demandas en contra de su persona. Sea avisado gue 51 usted no se defienda, la corte tomara medldas y puede entrar una ortlen contra usted sin previa aviso 0 notlficac\on y por cualquler gueJa 0 allvlo gue es pedido en la petlc\on de demanda. Usted puede pertler dlnero 0 sus propledades 0 otros derechos importantes para usted. LLBVB BSTA DBMANDA A UN ABODAGO INMEDIATAMBNTB. SI NO TIBNB ABOGADO 0 SI NO TIBNB BL DlNBRO SUFlCIBNTB DB PAGAR TAL SERVlCIO, V A Y A BN PERSONA 0 LLAMB POR TBLBFONO A LA OFlCINA CUY A DlRBCCION ASISTBNCIA LBGAL. CUMBERLAND COUNTY Court Administrator Fourth Floor Cumberland COllnty COllrthollse Carlisle, PA 17013 (717) 240-6200 . .,,,,,.,=,. .+, ,.~. , . 95.106 LAW OFFlCI3S OF DONALD R. DORBR Scou A. Freeland, Esquire Attorney for Defendant 3907 Hartzdale Drive, Suite 706 Camp Hili, PA 17011 Tell:phollll No. (717) 731-0988 ROBBRT M. DUTCHER and MARY DUTCHBR, his wife, Plaintiffs IN 11m COURT OF COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLV ANIA vs. DOCKBT NO. 95.5381 CIVIL ACTION . LAW JURY TRIAL DEMANDED KEVIN J. CORMIER, Defendant DBFBNDANT'S ANSWBR wrm NEW MATfBR TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendant, Kevin J. Connler, by and through his attorney, Scott A. Freeland, Esquire In suppon of Defendant's Answer with New Matter to Plaintiffs' Complaint hereby avers as follows: 1. Denied. After reasonable Investigation, the Defendant Is without knowledge or Infonnatlon sufficient to fonn an opinion as to the troth or falsity of said avennent. Strict proof thereof Is demanded. 2. Admitted. 3. Admitted. 4. Admitted. , . 5. Denied. After reasonable Investigation. the Defendant Is without knowledge or Infonnatlon sufficient to fonn an opinion as to the tMh or falsity of said avennent. Strict proof thereof Is demanded. 6. Denied as stated. It Is admitted only that the Defendant was operating a 1992 Chevrolet S-IO pick up trock traveling on said roadway. The remaining avennents are denied generally punuantto PA. R.C.P. Rule 1029. 7-10. Denied. Said avennents are denied generally punuantto PA. R.C.P. Rule 1029. COUNT I Robert M. Dutcher and Mal)' Dutcher v. Kevin J. Connler II. Pal'lllraphs one through ten of Plaintiffs' Complaint are Incorporated herein by reference. 12. Denied. Said avennent Is denied generally punuantto PA. R.C.P. Rule 1029. CLAIM I Robert M. Dutcher v. Kevin J. Connier 13. Paragraphs one through twelve of Plaintiffs' Complaint are incorporated herein by reference. 14-20. Denied. Said avemlents are denied generally punuantto PA. R.C.P. Rule 1029. 2 CLAIM U MIlY Dutcher v. Kevin J. Connler 21. Pal'lllraphs one through twenty of Plaintiffs' Complaint are Incorporated herein by reference. 22. Denied. Said avennent Is denied generally punuant to PA. R.C.P. Rule 1029. WHBRBFORB, the Defendant respectfully prays this Honorable Court to dismiss Plaintiffs' Complaint and to enter judgment In favor of the Defendant. NEW MATl'BR 23. Pal'lllraphs one through twenty-two are incorporated herein by reference, and made I part hel'Clllf IS If set forth In full. 24. Plaintiffs' claims are barred In whole or in part by the provisions of the Pennsylvania Comparative Negligence Act. 25. Plaintiffs' claims are barred In whole or in part by the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act and/or the Pennsylvania Motor Vehicle Financial Responsiblllty Law. 26. Plaintiffs' Complaint fails to state a cause of action upon which relief may be granted. 27. By the actions of Plaintiff, Robert M. Dutcher, the Plaintiffs did assume the risk of any Ind all injuries and/or damages allegedly suffered. 3 '.;:".'.-" 28. If there Is a leaal responsibility for the damllles set forth In Plaintiffs' Complaint, the responsibility Is that of other Individuals and/or entities over whom Defendant has no control. Plaintiffs' Injuries and damages as alleged were not proximately caused In any manner whatsoever by Defendant. 29. Plaintiffs' claims are barred by the applicable Statute of Limitations. 30. All matters not heretofore directly controverted are hereby specifically denied. WHBRBFORB, the Defendant respectfully prays this Honorable Court to dismiss Plaintiffs' Complaint, and to enter judgment lIIalnst the Plaintiffs and In favor of the Defendant. Respectfully submitted, LAW OFFICES OF DONALD R. DORER 1T A. FRBBLAND, Attorney for Defendant 3907 Hartzdale Drive, Sulle 706 Camp Hili, PA 17011 Telephone No. (717) 731-0988 Identification No. SS663 4 . . , '5-106 ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN mB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANJA va. DOCKET NO. 95-5381 KEVIN J. CORMIER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED VBRIFICATION Scott A. Freeland, Esquire, allorney for Defendant In the within action, certifies that the statements made in the foregoing Defendant's Answer with New Matter to Plaintiffs' Complaint are true and correct to the best of his knowledge, Infonnatlon and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: F;~fU()'" /; /rr;~ 011 A. Freeland, Esqul Attorney for Defendant 3907 Hartzdale Drive, Suite 706 Camp Hill, PA 17011 Telephone (717) 731-0988 Identification No. 55663 (;; \.0 I'; i ,'J 'IJ~ ~ ,) , u'. . t). . , " : f"\ ( ,. 1:-, ". I , 1)' , , i , fill' r.J . ,:"" '1' I ,-." , I-!' r-\ ; .1[;~ I" llJ l<. ( ;,1 ~1_ " ,f) ;;,: C. ..J I~' , U Ill!! - - e!~ ~I~~ !;: ~_:;~i1!~ allll,t!a~f= ~ ~=c71=EE- ~ Ai ~cE~ ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW VS. 9S-S3!l1 CIVIL TERM KEVIN J. CORMIER, Defendant JURY TRIAL DEMANDED IN RE: PETITION FOR STAY OF PROCEEDINGS PURSUANT TO THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT ORDER AND NOW, this ,,~ day of January 1996, In consideration of the within petition and answer filed thereto, an on.record argument is herewith set for Thursday, February 1,1996, ot2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. The parties shall file memoranda of law not less than two days prior to the time set for argument. BY THE COURT, Rlehard A. Sodloek, Esquire For the Plaintiffs _ (!~t4.",Q~ ""vtL-.l.. c\ IJIL Scoll A. Freeland, Esquire For the Defendant :rlm '-'i~~~.;~'J:4~~:ri~t~o<:1!j'l/"1i;'''''.''~i_i-' , - ALED.OFACE or- 1::~ f Fnn !()~IOTNW 96 .J~)I-I, HI II 17 CUMUU;lJ~.D C'..iUNn' PcNN3YL\I.\,,(~\ ROBERT M. DUTCHER and , IN THE COURT OF COMMON PLEAS NARY DUTCHER, hia wife, , CUMBERLAND COUNTY, PENNSYLVANIA I Plaintiffa I CIVIL ACTION - LAW , v. , NO. 95-5381 civil Tera , !tIVIN J. CORNIER, , I Defendant I JURY TRIAL DEMANDED oaD.a AND NOW, thia day of , 199_, it ia hereby Ordered and Decreed Defendant's Petition for stey of Proceedinqa Pursuant to the Soldiers' and Sailora' civil Relief Act ia hereby DENIED. BY THE COURTI J. ROIIRT M. DUTCHER and , IN THE COURT or CONNON PLEAS MARY DUTCHER, hi. wife, , CUMBERLAND COUNTY, PENNSYLVANIA , Plaintiff. I CIVIL ACTION - LAW , v. , NO. 95-5381 Civil Tera , !tWIN J. CORMIER, , , Defendant I JURY TRIAL DEMANDED .0000IC. '1'0 lILDD TO: Defendent Kevin J. Cormier and hi. counsel, Scott A. Freeland, Esquire Law Office. of Donald R. Dorer 3907 Hart.dale Drive Suite 70& Ca.p Hill, PA 17011 You ere hereby notified to plead to the enclosed An.wer with Counterelaia pur.uant to Pa.R.c.p. 1026 within twanty (20) day. fro. .erviee hareof or a jUdgment may ba entered against you. ANGINO , ROVM -- Date: Deceaber 28, 1995 ROBERT H. DUTCHER and I IN THE COURT or CONHON PLEAS MARY DUTCHER, his wife, , CUMBERLAND COUNTY, PENNSYLVANIA I plaintiffs I CIVIL ACTION - LAW I V. , NO. 95-5381 civil Tera I KEVIN J. CORMIER, , I Defendant I JURY TRIAL DEMANDED lIr.alnl...' ..IILY 'l'O 1I..,I:'1'IOa ro. l'1'AY or ..00..Dlaal lIualD~ 'l'O ~. .OLDI..I' &MD IAILORI' CIVIL ..LI.r aC'l' 1. Adaitted. a. Plaintiff. are without 8ufficient knowledie or inforaation to fora a belief a. to the truth of the averaant, and therefore it i. specificallY denied. 3. Danied. Thi. is a clear liability, rearend .otor vehicle accident. There is no dafense to the happening of the accident, and therefore the ability of the Defendant to conduct a defen.e will not be affected for any reason even if the Defendant is in .Uitary servica outside the cO\llDlonwealth of Pennsylvania. The only issue to be determined in this casa 18 the damage. to be awerded. an 1IA'1''1'IR 4. The Soldier.' and Sailor.' civil Relief Act at 50 U.S.c.A. S 521 provides that ths decision to stay the action i. within the di.cretion of the Trial Court. 830U/1lLH T:.~': ~..,.-~..'}" 5. If the ability of the Dafendant to conduct h18 defense i. not .atedallY affected by rea.on of h18 military service, the instant action cannot be stayed. 6. There is ab.olutaly no reason or repre.entation by the Defendant to ju.tify the instant Petition. 7. At the ti.e of the accident qiving rise to the instant action, the Defendant maintained automobile liability insurance with the Nationwide Insurance Company. .. Nationwide continues to provide coveraie to the Defendant for the clai.s beini .ade in the instant action end has retained counsel to represent Defendant herein. ,. Defendant 18 available for telephone conference. and po.tal coaaunications with his counsel. 10. If in fact the Dafendant is on activa duty and stationed in Northarn Italy, the Defendant is not involved in any special .i..ion or other covert operation that makes comaunication iapose1ble. WHEREFORE, Plaintiffs respectfully requast your Honorable Court deny the in.tant Petition for stay of proceedinq.. ANGINa, ROVNP, P.C. Date, Deceaber 28, 1995 ~ c:::-~-- --- ar a . o. 47281 4503 North Front street Harrieburq, PA 17110 (717) 238-6791 Coun8.l for Plaintiffs O"~I'laa~1 O' ...VIOI I, Marcy L. Moy.r, an ..ploy.. of the l.w fira of Aniino , Rovner, P.c., do her.by c.rtify that I a. thi. day ..rvini a true and corract copy of .LalftIrI'" .ULY 1'0 DUIIIIWI'I'" '1t1~10II tea '~aY 01' .1001101... on the followini via po.t.9a pr.p.id, fir.t cla.. United stat.., r.qu..t.d .ddr....d a. follow., Scott A. pr..land, E.quir. Law Offic.. of Donald R. Dorar 3'07 Hart.dal. Driva Suit. 701 Caap Hill, PA 17011 (-'~'1>>11~ itar . oyar Data. Dec.abar ai, 11'5 SHERIFF'S RETURN - OUT OF COUNTY CASE NOI 1995-0S381 P ggna~~W~~L~u"g~Rrfa~SYLVANIAI DUTCHER ROBERT " ET AL VS. COR"IER KEVIN J R. Tho.a. Klin. . Sh.riff, who b.ing duly .warn according to law, .ey., that h. mad. a diligent .earch and inquiry for the within na.ed def.ndant, to wit, COR"IER KEVIN J but wa. uneble to lacet. Him deputized the .heriff of CARBON to .erye th. within CO"PLAINT in hie beiliwiok. He therefore County, P.nn.ylyanie. On NDv..b.r 28~h. 199~ the ettached return from CARBON thi. office wa. in r.~eipt of County, Penn.ylyanie. /"')/) ./ Sheriff'. Ca.t.1 Dack_Ung Out of County Surcharg_ CARlON CO. Sa an~lIJr.l./ / ~~- V-eLfii ;t.( ic. T~,9 .. KIln., B .r1I~ 18.00 9.00 2.00 29.80 .08.88 ANGINO &~OVNER 1l/28i1199!l Sworn and .ub.cribed tan before me thi. Is I day of --4Iu II! ~ t'1 19 9 \- r ROBERT M DUTCHER ET AL SHERIFF'S OFFICE COUNTY OF CARBON P.O BOX 147 JIM THORPE, PA 1B229 (717)325-2821/4231 DOCKET PAGE/NUMBER 16 - 468 CASE NUMBER 95-5381 EXPIRATION DATE 11/15/95 DEPOSIT: $ 75.00 va KEVIN J CORMIER WRIT: COMPLAINT IN CIVIL ACTION SERVE: KEVIN J CORMIER AT: 280 S. FIRST ST. LEHIGHTON, PA 18235 -------------------------------------------------------.-------------- RETURN OF SERVICE 1. NAME OF INDIVIDUAL SERVED: 2. DATE: 3. LOCATION OF SERVICE: TIME: Carbon County, Pennsylvania MUNICIPALITY: 4. SERVED IN THE FOLLOWING MANNER: C J Defendant panonaUy ..rved. I J Adult haUy ...lhu' with wh'* defendant ruid... f1ahtion.hip h ( J Adult 1n charg. of defendant. "'a1danca. I J Manager/clerk of placa of lodging in which defendant t,..tdu. ( J Agant or panon 1n charge of defend.ntll Ullual phee of bUdin... I J and officn of dd.ndant cOIDpany C J lJo.t.d property I J Othert ~Hot Pound "..on I NO AHSWIR 5. UNABLE TO LOCATE: Data checked with poot offica for 1nfol~.ttonl If v.., naw addr... 1111 Addnaa chango, ATTEMPTS TO LOCATE DEFENDANT AT LAST KNOWN ADDRESS: 1. Data,Tl.., , H11..gal 10/10/'. 10,.0 AM 2. Data,Tl.., . "11..g81 11/01;" 1105 rH ). Deta,Tt.., , H11..gal 10 t. Oata,Tl.., , Hl1..ga, 10 ,. Oat.,Tl.a, ~ H11..ge, ,. Oat.,Tl.., , Hl1..ga, MILEAGE: 20 SO ANSWERS: /7 _/ ~d, THIS /?./~ DeputYS~f '..{):~Z:.~ /,.' ~,~/4~;:-- Sheriff of Carbon County TOTAL SWORN AND SUBSCRIBED BEFORE ME 16TH DAY OF Nuvember. 1995 VC!I: ~ Pi~rWON~~/16/95 ~, Ci/lr.lneoUi\1i.~r\1l{;j1 ','r,!c\ My CclmlrieIIon i:Iplrea JanulllY 10 1996 R. THOMAS KLINE, SHF. KEVIN J. CORMIER, Defendant JURY TRIAL DEMANDED '. . v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 15 - 53 f I (I J.'l~~_,j t,t-n- ROBERT M. DUTCHER and MARY DUTCHER, his wife, plaintiffS "OTIC. ora DllrllllD You have bean sued in court. If you wish to defend aiainst the claims sat forth in tha followinq paqes, you must take action within twanty (20) days after this Complaint and Notice are served, by enterinq a written appearance personally or by attorney and filini in writinq with the Court your defenses or objections to the clai.s sat forth against you. You are warned that if you fail to do so tha case .ay proceed without you and judqment .ay be entered aia1nst you by the Court without further notice for any .onay clai.ed in the complaint or for any othar claim or relief requestad by the plaintiff. You may lo.e money or property or other riihts important to you. , YOU SHOULD TARE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator cumberland county Courthouse - 4th Floor One courthouse Square carli.le, PA 17013-3387 (717) 240-6200 TRUE COPY FROM RECORD Iii Tesllmony whereof 0 , here unlo sot my hand ~~~ 'h~~?t~ o~~ar ~~It;.IISI:19 1f ~, It '-I'- .,.1 ".1 \ '.,' \(, ' ': '.... \ \ !'. 'J , ' " ROBERT M. DUTCHER and MARY DUTCHER, his wire, Plaintirrs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. REVIN J. CORMIER, Derendant JURY TRIAL DEMANDED IfOTICIA Le hen deDlandado a usted en la corte. si usted quiere defenderse de estes deDlandas expuestas en las raginas sUinuientes, usted tiene viente (20) dias de plazo al part r de la fecha de la demanda y la notificacion. Usted de be presenter una apariene!e e.crite 0 en persona 0 por ebogado y archivar en le corte en forma escrita sus defensa. 0 .us objecione. ale. damande. en contra de su persona. Sea avisado que si ulted no se defiende, la corte to.ara medidas y puade entrar una orden contra usted sin prev10 aviso 0 notificacion y por cualquier queja 0 alivio que as ped1do en la peUcion de demanda. Usted puede perdu dinaro 0 BUS propiedades 0 otros derechos importantes para ustad. . LLEVE ESTA DEMANDA A UN ABOGADO IMMEOIATEMENTE. SI NO TUNE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEPFONO A LA OFICINA CUYA DlRECCION SE ENCUEN'l'RA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Court Administrator Cumbsrland County Courthouse - 4th Floor One Courthouse Square carlisle, PA 17013-33B7 (717) 240-6200 ROBERT M. DUTCHER an4 , IN THE COURT OF COMMON PLEAS MARY DUTCHER, his wife, I CUMBERLAND COUNTY, PENNSYLVANIA I Plaintiffs , CIVIL ACTION - LAW I v. I NO. I KEVIN J. CORMIER, I I Defendant I JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff. Robert M. Dutcher an4 Mary Dutcher are huaband and wife, adult individuals, citizens of the COll\lllonwealth of Pennsylvania, who raside at 251 Lost Hollow Road, Dillsburi, York County, Pannsylvania. 2. Defendant Kevin J. Cormisr is an a4ult in4ivi4ual, citilen of the Commonwaalth of Pennsylvania who rasi4es at 280 , South First Street, Lehiqhtcn, Carbon County, Pennsylvania. 3. Defendant Kevin J. Cormier is a serviceman in the United States Army and has been stationed in Italy since July, 1994. 4. The facts and occurrences hereinafter related took place on or about February 21, 1994, at approximately 11'31 a.m. on US Route 15, Upper Allen Township, Cumbsrland County, Pennsylvania. 5. At that time and place, Plaintiff Robert M. Dutcher was operating a 1993 Oldsmobils Cutlass supreme and was travellinq south on US Route 15, Upper Allen Township, Cumbsrland county, Pennsylvania. 76U5/CLN 6. At that tima and place, Defendant Kevin J. Cormier was operating a 1992 Chevrolet S-10 pick-up truck, and was travellini south on us Route 15, directly behind the Dutcher vehicle and a 1992 Dodge Dakota truck being driven by Mr. stanley Kochevar. 7. At that time and place, it had been rainini and there wae a f09 in the area. 8. Prior to this incident, another motor vehicle accident had taken place and seeing the motor vehicle accident, Plaintiff Robart M. Dutcher had stopped 100 fest from the first accident, and Mr. Kochevar was stopped or moving very slowly behind him. 9. At that time and place, Defendant Kevin J. cormier operated his vehicle at such a high rate of spead that he stuck Mr. Kochevar's truck and forcsd it into Plaintiff Robert M. Dutcher'. vehicle. 10. At that time and place, ths front portion of Defendant cormier's vehicle violently collided with the rear portion of the Kochevar vehicle pushing it into the rear portion of the Dutcher vehicle. COUNT I Robert M. Dutcher and Marv Dutcher v. Kevin J. cormier 11. Paragraphs 1 through 10 of PlaintittB' complaint are incorporated herein by reference. 2 12. The foreqoini accident and all of the injuries and damaie. .et forth hereinafter sustained by Plaintiff. Robert M. Dutcher and Mary Dutcher are the direot and proximate re.ult of the negligent, carele.s, wanton, and reckless manner in which Defendant Kevin J. cormier opsrated his motor vehicle as follows: (a) (b) (c) (d) (e) (f) (g) (h) (i) failure to have his vehicle under such control a. to ba able to stop within the assured clear distance ahead; failure to keep alert and maintain a proper watch for the presenoe of other motor vehicles on the hiqhway; failure to apply hi. brakes in sufficient tima to avoid strikini the Kochevar vehicle; failure to travel at a .afe speed; failure to keep a proper watch for traffic on the highway; failure to take reasonable evasive ~ction to avoid the accident; failure to drive his vehiole with due reqard for the highway and traffic conditions which ware eXisting and of which he was or should have baen aware, failure to keep proper and adequate control over his vehiole; and drivinq his vehicle upon the highway in a manner endangerinq persons and property and in a reckle.. manner with carelsss disregard to the rights and safety of others and in violation of the Motor Vehicle Code of ths Commonwealth of Pennsylvania. J . CLAIM I Robert M. Dutcher v. Kevin J. cormier 13. Paragraphs 1 through 12 of plaint1tfs' complaint are incorporated herein by reterence. 14. Plaintitf Robart M. Dutcher sustained painfUl, severe, and sarious injuriea which include but are not limited to cervical strain, riiht flank pain, a herniated disc at C6-7, and right lower cervical facet impingement syndrome. 15. By reason of the aforesaid injuries sustained by Plaintiff Robert M. Dutcher, he was torced to incur liability for madical treatmant, medications, hospitalization. and .imilar miscellaneous expense. in an eftort to restore himself to health, and elai. ie made theretor. 16. Because ot tho nature ot his injuri,., Plaintiff Robart M. Dutcher has been advised and, theretore, avers that he may be forced to incur similar expensee in the future, and claim is .ade thentor. 17. Ae a result ot the atorement1oned injuriee, plaintiff Robert M. Dutcher has undergone and in the tuture will-undergo iraat physical and mental euttering, great inconvenience in carrying out his daily activitiss, loss ot lite's pleasures and enjoyment, and claim is made theretor. 4 18. AB a re.ult of the aforementioned injurie., plaintiff Robert M. Dutcher has been and in future will be BUbject to 9reat humiliation and embarrassment, and claim is made therefor. 1!il. "'S a reBult of the aforementioned injurie., Plaintiff Robert M. Dutcher has .ustained work 108., los. of opportunity and a permanent diminution of his earninq power and capacity, and claim ie made therefor. 20. Plaintiff Robert M. Dutcher continues to be plaquad by per.i.tent pain and limitation and, therefore, avers that hi. injuries may be of a permanent nature, causinq residual problem. for the remainder of his lifetime, and claim i. made therefor. CLlI.. II Marv Dutcher v. Kevin J. cormier 21. Paragraphs 1 through 20 of plaintiffs' Complaint are incorporatsd herein by referencs. 22. As a result of the aforementioned injuries sustained by her hu.band, Plaintiff Robert M. Dutcher, Plaintiff Mary Dutcher hae been and may in the future be deprived of tha care, companionship, consortium, and society of her husband, all of which will be to her great detriment, and claim is made therefor. 5 Date, October 6, 1995 WHEREFORE, plaintiffs Robert M. Dutcher and Mary Dutcher demand judqment a9ainst Defendant Kevin J. cormier in an amount in exces. of Twenty-Five Thousand Dollars ($25,000.00), exclu.ive of inter..t and costs and in excess of any jurisdictional amount requirini compulsory arbitration. ANGINO , re o. 47281 4503 North Front street Harrieburi, PA 17110 (717) 238-6791 Counsel for Plaintiff. VBRUICA'l'IOII We, ROBERT M. DUTCHER and MARY DUTCHER, hia wite, Plaintifts have read the toreqoinq 'UXIl'l'II'I'I' CODUIIl'l' and do swear or atUn that the facts set torth in the fore90inq are true and correct to the best ot our knowledqa, intonation and beliet. We understand that this Verification is .ada aubject to the penalties ot 18 Pa.C.S.A., section 4904, relatinq to un.worn falsification to authorities. ~ ji"art:.'. u c er _eJdikJ Mary Du c er Datal September 27, 1995 State of Pennsylvania County of York On this, the 27th day of September, 1995, before m~~athleen E. Lukas, the undersigned notary public, personally appeared Robert M, Dutcher and Mary Dutcher. known to me (or satisfactorily proven) to be the person whose names appear above. .r [, '["'1' 'I' , , set my hand and official seal. 76602/I1W I" CalHoef1 e, L.k;ls, 'kltary Pt.IlIo "'f!.j"~...~r ec.ro, \fcn4; c.)Uf1ty M) cern"""", E>opnt5 C<:t 1 1!l96 95-106 LAW OFFICES OF DONAW R. DORER Scott A. Fneland, Esquire Attomey for Defendant 3!107 Danldale Drive, Suite 706 Camp Hili, PA 17011 Telegbone No. {71n 731-0988 ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN TIlB COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLV ANIA vs. DOCKBT NO. 95-5381 KBVIN J. CORMIER, Defendant CIVIL ACTION - LAW JURY TRIAL DBMANDBD ENTRY OF APPBARANCB TO niB PROTIlONOTARY: Kindly enter my appearance In the above-captioned matter on behalf of the Defendant, Kevin J. Connler. Respectfully submitted, LAW OFFlCBS OF DONALD R. DORER /-ff ~/ CO A. RBBLAND. BSQUlRB Attorney for Defendant 3907 Hanzdale Drive, Suite 706 Camp Hill, PA 17011 Telephone Number (717) 731-0988 Identification No. 55663 95-106 ROBBRT M. DUTCHBR and MARY DUTCHBR, his wife, Plaintiffs IN mE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYL VANIA vs. DOCKET NO. 95-5381 KEVIN J. CORMIBR, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CBRTIFlCATE OF SBRVlCE SCOTl' A. FRBBLAND, ESQUlRB, hereby certifies that he Is the allomey for the Defendant herein, and that he caused a true and correct copy of the allached Entry of Appearance to be served by regular first class mall upon: Richard A. Sadlock, Esquire Anglno & Ro\'ner, P.C. 4503 North Front Street Harrisburg, PA 17110 November 27. 1995 Date SCOIl A. Freeland, Esquire AlIomey for Defendant ej~ ~I!ij ~~~_"~I=l~ ~ 9!~~~g! :SAi ~E~~ ." . ROBERT ". DUTCHER and I IN THE COURT OF COMMON PLEAS NARY DUTCHER, hi. wit., , CUMBERLAND COUNTY, PENNSYLVANIA , Plaintiff. , CIVIL ACTION - LAW . . v. , NO. 95-5381 civil Term . . KEVIN J. CORNIER, . . . . Defandant . JURY TRIAL DEMANDED . Ar.IDAVIT O. BlaVICI Thi. i. to certify that on the 13th day of October, 1995, a true and correct copy of the COMPLAINT, civil Action No. 95-5381 civil wa. mailed to the Def.ndant Kevin J. Cormier via regi.ter.d .ail, return receipt reque.ted at CMR 427, Box 2281, APO AE 09630. A copy of the regi.tered receipt No. R864217746 i. attached hereto. ~M~;f}~U- Mar y L. oyer ACCIPTUQI O. BIRVICI Thi. i. to certify that on the 26th day of October, 1995, a true and correct copy of the above-noted COMPLAINT wa. .erved upon the D.f.ndant via ra9i.tered mail, return receipt requ..ted at the above-not.d addr.... A copy of the signed receipt is attached h.r.to. L/~{JA I!frl (l2 lJY A Mar L. oyer Sworn to antS SUbscribed betore .. ~i. __~~ day of ~l'I~~ , 19.i1} NO~ lb~'~ 36011/HLH NOTARIAL SEAL 1,L1C, I: ^,IGINO, NOtifY Public IlalllsblllU, Olup/lln COunty My Commllslon EJplm Feb, 6, 1888 (,....1/ 00 o"""""oflIl liS) ('''';) ""'OllfIJ) 'IWII alllllllDIlIlIll1I .LIIIOIII . Aq"""-ij ~'_Od "lRII", S'I'. lullpll~~ . I::~ >~ . Hd 'Ioij C7)f-,L Lie ~!)~ 'ON Oill!rlslDill , IIICII" f01I1I101IT11l1O MAIL (CU"o",,, e.",1 (S" (oJo_,'o. o. R""'I II: ~ if: ...... ....... 01.. ..,,~ . ,:,..... c..:. ~_ ~i';.;.)~ ""'~qJ> ~.,~ ..z:;:! ..: ,.}." II!,: ."1;,"..c -,U....~ , " .ul.lJ r- .:a.:n.. '" ... () -, :01' .... ... ~ . --c,";'-' \ W".T~~~$--!o':_ . - ~ ROBERT ". DU'l'CHER and MARY DU'l'CHER, his wife, plaintiffs I IN THE COURT OF COMMON PLEAS , CUMBERLAND COUNTY, PENNSYLVANIA I I I I I I v. CIVIL ACTION - LAW NO. 1:; ~j'iJ I (]~/lt' eJ~ KEVIN J. CORMIER, Defendant JURY TRIAL DEMANDED _OTIC. ~ n.,.-D You have bean .ued in court. If you wish to defend against the clai.s set forth in the followini pag.., you must take action within twenty (20) days after this Complaint and Notice are e.rved, by enterin9 a written appearancs personally or by attorney and filin9 in writini with the Court your defensss or objections to the clai.s sat forth a9ainst you. You ere warned that if you fail to do so tha case .ay proceed without you and jud~ent .ay be entared aiainst you by the Court without further notica for any .oney clai.ed in the Co.plaint or for any other clai. or r.lief requa.ted by the Plaintiff. You may lose money or property or other riiht. important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator cumberland county Courthouss - 4th Floor One Courthouse Square carlisle, PA 17013-3387 (717) 240-6200 - ' ROBERT H. DU'l'CHER and NARY DU'l'CHER, his wife, Plaintir.te v. I IN THE COURT OF CONHON PLEAS , CUMBERLAND COUNTY, PENNSYLVANIA , CIVIL ACTION - LAW , I NO. , , KEVIN J. CORMIER, Defendant . . JURY TRIAL DEMANDED MO'l'ICIA Le han demandado a u8ted en la corte. si usted quiere defenderse de esta. demandas expue8tas en las pa9ina. sUinuientas, u.tad tiene viente (20) dias de plalo al partir de la fech. de 1. d...nd. y la notificacion. Usted debe presenter un. .p.rienci. e.crit. 0 en persona 0 por ebciado y erchivar en la corte en fora. escrit. sus defensas 0 sus objeciones alas demanda. en contra de .u per.on.. Sea evi.ado que ei usted no .e defiende, 1. corte toaar. .adida. y puade entrar una orden contra usted .in previo .viso 0 notificacion y por cualquier queja 0 alivio que es pedido en 1. paticion de demanda. Usted puede perder dinero 0 su. propiedade. 0 otros derech08 importante. para u.ted. LLEVB ESTA DEHANDA A UN ABOGADO INHEDIATEHENTB. SI NO TUNB ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEPFONO A LA OFICINA CUYA DIRECCION SB ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse - 4th Floor One Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 ~ ~ - ROBERT N. DtJ'l'CHER end I IN THE COURT OF CONNON PLEAS MARY DtJ'l'CHER, his wif., , CUMBERLAND COUNTY, PENNSYLVANIA , Plaintiffs , CIVIL ACTION - LAW I v. , NO. I KEVIN J. CORMIER, , , Defendant , JURY TRIAL DEMANDED CO.PLAIN'!' 1. Plaintiff. Robert N. Dutcher and Nary Dutcher are husbancS and wife, adult individuals, citizena of the Couonwealth of Pennsylvania, who reside at 251 Lost Hollow Road, Dillsbur9, York County, Psnnsylvania. a. DefencSant Kevin J. cormier i. an adult indivicSual, cithen of the Couonwealth of Pennsylvania who raBicS.s et aiD South First street, Lehighton, Carbon county, Pennsylvania. 3. Defendant Kevin J. Cormier is a serviceman in the United States Army and has b.en stationed in Italy since July, 1994. 4. The facts and occurrences hereinafter related took place on or about February 21, 1994, at approximatelY 11'31 .... on US Route 15, Upper Allen Township, Cumberland county, Pennsylvanis. 5. At that time and place, Plaintiff Robert N. Dutcher was op.rating a 1993 Oldsmobile Cutlass Supreme and was travellini south on US Route 15, Upper Allen TownShip, Cumberland county, p.nnsylvania. 76UlI/CLN 6. At that time and place, Defendant Kevin J. coraier was oparatin9 a 1992 Chevrolet S-10 pick-up truck, and Wa. travellini .outh on US Route 15, directly behind the Dutcher vehicle and a 1992 Dodge Dakota truck beinq driven by Mr. Stanley Kochevar. 7. At that time and place, it had been reinini and there was a fQi in the area. 8. Prior to this incident, anothur motor vehicle accident had taken place and .eeing the motor vehicle ecoident, Plaintiff Robert M. Dutoher had .toppad 100 feat from the fir.t eccidant, and Mr. Kochevar was etopped or movinq very slowly behind hi.. 9. At that time and place, Defendant Kevin J. Conier operated his vehicle at such a hiqh rate of speed that he stuck Mr. Kochsvar'8 truck and forced it into Plaintiff Robert M. Dutcher'. vehicle. 10. At that time and plaoe, the front portion of Dafendant Coraier's vehicle violently collided with the rear portion of the Kochevar vehiole puehinq it into the rear portion of the Dutcher vehicle. COUllT I Robert M. Dutcher and Marv Dutcher v. Kevin J. Cormier 11. Paraqraphe 1 through 10 of Plaintiffs' Complaint are incorporated herein by rSference. 2 " 12. The foreioini accident and aU of the injuria. and damaie. .at forth hereinarter sustained by Plaintiff. Robart M. Dutcher and Mary Dutcher are the direct and proximate re.ult of the nailigent, carele.., wanton, and reckless manner in which Defendant Kevin J. cormier operated his motor vehicle as rollowSI (c) (d) (e) (f) (g) (h) (i) (a) failure to have his vehicle under such control a. to be able to stop within the assured clear distance ahsad; failure to keep alert and maintain a proper watch for the presence or other motor vehicles on the hiihway; failure to apply hi. brakes in eUfficient time to avoid .triking the Kochevar vehicle; failure to travel at a safe .peed; feilure to keep a proper watch for traffic on the highway; failure to take reasonable evasive action to avoid the accident; failure to drive his vehicle with due regard for the highway and traffic conditions which were existing and of which he wae or ehould have been aware; (b) failure to keep proper and adequate control over hi. vehicle; and driving hi. vehicle upon the highway in a manner endangering pereons and property and in a reckle.. manner with care lees disregard to the riiht. and .afety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 3 " . CLAIK I Rob.rt M. Dutcher v. Kevin J. Cormi.r 13. Parairaphs 1 throuih 12 of Plaintiffs' Complaint ere inoorporated herein by reference. 14. Plaintiff Robart M. Dutcher sustained painful, severe, and serious injuries which include but are not limited to cervioal strain, riiht flank pain, a herniated disc at C6-7, and riiht lover cervical facet impiniement syndrome. 15. By reason of the aforesaid injuries sustained by Plaintiff Robart M. Dutcher, he was forced to incur liability for .edioal trsatment, medications, hospitalizations and si.ilar .iscellaneous expensas in an effort to restora himself to health, and olai. is .ade tharefor. 16. Because of the nature of his injuries, Plaintiff Robart M. Dutcher has been advised and, thsrefore, avers that he .ay be forced to incur similar expanses in the future, and clai. is .ade therefor. 17. As a result of the aforementioned injuries, Plaintiff Robart M. Dutcher has undergone and in the future will underio ireat physioal and mental suffering, great inconvenience in carryini out his daily activities, loss of life's plaasures and anjoyaent, and claim is made therefor. ,. ., 18. A.. result of the aforemsntioned injuries, plaintiff Robert M. Dutcher has been and in future will be subject to iraat humiliation and embarrassment, and claim is made therefor. 19. As a result of the aforementioned injurie., plaintiff Robart M. Dutcher has sustained work loss, loss of opportunity and a parmanent diminution of his earning power and capacity, and claim i. .ade therefor. ao. plaintiff Robert M. Dutcher continues to be plagued by persi.tent pain and limitation and, therefore, avers that his injuries .ay be of a permanent nature, causing residual proble.s for the remainder of his lifetime, and claim is made therefor. CLAIM II Marv Dutcher v. Kevin J. cormier 21. Paragraphs 1 through 20 of Plaintiffs' complaint are incorporated herein by reference. aa. As a reeult of the aforemsntioned injuriea sustained by her husband, plaintiff Robert M. Dutcher, plaintiff Mary Dutcher has been and may in the future be deprived of tha care, companionship, oonsortium, and sooiety of her husband, all of which will be to her great detrimsnt, and claim is made therefor. 5 " - . WHEREFORE, Plaintiff. Robert M. Dutcher end Mary Dutcher de.and judiaent a9ainat Dafendant Kevin J. cormier in an a.ount in exce.. of Twenty-rive Thou.and Dollar. ($25,000.00), exclu.ive of intere.t and co.t. anll in exce.. of any jurisdictional a.ollnt requirin9 coapul.ory arbitration. ANGINO , re o. 47281 4503 North Front street Harri.buri, PA 17110 (717) 238-67U Counsel tor Plaintiff. Date. October 6, 1"5 . YDUlaat'lo. We, ROBERT N. DUTCHER end NARY DUTCHER, hi. wUe, Plaintiff. h.ve read the foreio1ni .ulnl".' COIIJUln and do .weer or aff1ra that the facta .et forth in the foreioinq are true and correct to tha bast of our knowledie, inforaation and bal1ef. We under.tend that thi. Verification 1. .ade SUbject to the penalt1.. of 11 Pe.C.B.A., Section 4904, relatini to unsworn fal.1f1cation to author! tie.. j~ ~ eJdLkl Mary ~er Date, September 27. 1995 State of Pennsylvania County of York On this, the 27th day of September, 199~. before me Cathleen E. Lukas, the unders1gned notary public, personally appeared Robert M. Dutcher and Mary Dutcher, known to me (or sat t sfactorll y proven) to be the person whose names appear above. set my hand and official seal. 76602/lItJl ~~ Cattlieen E, w..G$, NolN'f "'~ HOi1oVl1f eoro, 'ftD ('~our1tv MyCulnm.....'ExpresO'I1111l8 ... .,,-. 4 . " 95-106 LAW OFFICES OF RUBINATB, JACOBS & SABA Scott A. FI'CllIand, Baqulre Attorney for Defendant 214 Senate Avenue, Suite 503 Camp Hili, PA 17011 TclqlhoDl! No. (7171731-0988 ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plaintiffs IN mB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. DOCKET NO. 95-5381 CIVIL ACTION - LAW JURY TRIAL DEMANDBD ?~rr. p l~c.t.. /0 -r. lc. KEVIN J. CORMIER, Defendant PRABCIPB J. H'iS,f -n.~'~""'"-'.'"'~'''^''_''' TO 11IB PRQ11{ONOTARY: Kindly file the attached deposition transcript of Defendant, Kevin J. Connler, with this Coun to be made pan of the reconlln the above referenced malter. Respectfully submitted, LAW OFFICES OF RUBINATB, JACOBS & SABA Dated: Pebrua.y 26. 1997 By: II A. reeland, Esquire Allomey for Defendant, Kevin J. Connier 214 Senate Avenue, Suite 503 Camp Hili, PA 17011 Telephone No. (717) 731-0988 Identificalion No. 55663 . " . . f, .., . ,'. " ROBERT M. DUTCHER AND MARY DUTCHER, HIS WIFE, PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V CIVIL ACTION- LAW NO. 95-53B1 CIVIL TERM KEVIN J. CORMIER, DEFENDANT JURY TRIAL DEMANDED TELEPHONE DEPOSITION OFl KEVIN J. CORMIER TAKEN BY I PLAINTIFFS BEFORE I TAMMY J. BAKER, REPORTER NOTARY PUBLIC , DATE I NOVEMBER 6, 1996, 12154 P.M. PLACE I RUSINATE, JACOBS & SABA 214 SENATE AVENUE CAMP HILL, PENNSYLVANIA APPEARANCES I ANGINO & ROVNER BYl RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS RUSINATE, JACOBS & SABA BYl SCOTT A' FREEWU1D, ESQUIRE FOR - DEFENDANT , Hups, 7llbrigM, 'Foltz !r]J4ftJ/e ~ &mu, 8nc. 115 PINE STREET. H"RRISSUAG, P" 1710\ HI"I.burg 717.232.5e<< Fu 717.232.8tl37 L"nel.,",717.313.&101 . . ... " ." . . 2 1 2 NAME 3 KEVIN J. CORMIER 4 BY. MR. SADLOCK S BYI MR. FREELAND 6 7 8 9 10 11 12 13 14 lS 16 17 18 19 20 21 WITNESS DIRECT CROSS 3 22 23 24 2S . t I., .., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. KEVIN J. CORMIER, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SADLOCK: Q Would you state your full name, sir? A Kevin John Cormier. MR. FREELAND: Before we go any further, usual stipulations. MR. SADLOCK: Yes. BY MR. SADLOCK: Q Mr. Cormier, my name is Rich Sad lock and I represent Mr. and Mrs. Dutcher in the lawsuit that was filed against you for the motor vehicle accident. What time is it over there now? A 1855, 6:55. Q In the morning? A No, the evening. Q Okay. Thank you for agreeing to this. I guess 3 . . . rI '. 1 short of you flying back for what's going to probably take 2 no more than a half hour, this is the easiest. I appreciate 3 it. 4 If you have any difficulty with any of my 5 questions in terms of not being able to hear or understand, 6 please let me know and I'll do whatever is necessary for you 7 so that you can answer the question. 8 Given the circumstances with the telephone 9 deposition, allow me or anyone else who speaks to finish 10 before you try to speak, okay? 11 A Yes. 12 Q And obviously for all of your answers it will be 13 necessary for you to give a verbal response rather than a 14 shake or nod of the head since we can't -- wouldn't be able 15 to see that, anyhow, okay? 16 A Yes. 17 Q You are currently in the United States Army? 18 A Yes. 19 Q How long have you been in the Army, Mr. Cormier? 20 A Nineteen years and two months. 21 Q And wha t is your current rank? 22 A E-8. 23 Q An what does that translate to? 24 A It's a first sergeant. 25 Q And what you are your specific duties? 4 . ~ . I '.c II. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 A Mostly administrative. Q Okay. A I'm at a management level now. Q And in a recorded statement that you had given to your insurance company shortly after the accident it listed as your occupation veterinary technician? A Yes. Q Is that what you were at one time? A Yes. As you get up in rank, you know, of course, you become more management than hands on with animals. Q All right. And what exactly would you be doing for the Army as a veterinary technician? A Everything from working on research animals in the lab area to working on military police dogs. Q And that was what your job duty was at the time of the accident with Mr. Dutcher? A At that time I was working at Uniformed Services University as a lab animal technologist. Q Mr. Cormier, have you been involved in any other lawsuits before this one? A No. Q Do you recall yourself, sir, the date for this accident? A Excuse me? Q Do you recall the date of thls accident? II . . . I., .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 lB 19 20 21 22 23 24 25 A No, other than it was on a Monday holiday, returning back. I mean -- yes, President's Day weekend. I don't remember the exact date. Q At that time you were performing your duties in Maryland, as I understand it, is that correct? A Yes. Q And you maintained a residence in Pennsylvania? A I originally am from Pennsylvania, so I have a house in Maryland and I have family all in Pennsylvania. Q Okay. You were returning to Maryland on the day of the accident, is that correct? A Yes. Q And you had been in Pennsylvania with family? A Yes. Q Were you expected back in Maryland at any specific time? A No. Q You were alone? A Yes. Q What type of vehicle were you driving? A I was driving a Chevy S-10 pick-up truck. Q What year? A The year of the truck? Q If you know, sir. If not, JUBt let us know you don't recall? 6 . . . 1 A No, I don't recall exactly what year the pick-up 2 truck is. 3 0 Was there anything wrong with the pick-up truck 4 prior to the accident? 5 A No. 6 0 Had it recently been serviced or any repair work 7 done prior to the accident? 8 A No. 9 0 At the time of the accident, did you hold a 10 Pennsylvania driver's license? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. o Had that driver's license ever been suspended or revoked? A No. o Had your operating privileges ever been taken away for any reason? A No. o Throughout your 19 years in the military, Mr. Cormier, have you been stationed in different states and different countries? A Yes. o Have you ever held a driver'S license for any state other than Pennsylvania? A I'm not sure. o Okay. How about in any foreign country, had you 7 . , t. '. B 1 ever been required to take any driver's test of any nature 2 for any country that you have been stationed in? 3 A Yes. 4 Q What country? 5 A Well, that's the normal policy. Normally you 6 take a valid state side license and you go to a foreign 7 country and you take a test on the installation in order to 8 get driving privileges for that installation; so I would 9 have had one for Japan. 10 Q Okay. 11 A I have one now for Italy. You know, that's the 12 normal standard policy. 13 Q Have you ever been denied any driving privileges 14 when you have been serving overseas? 15 A No. 16 Q Have you ever been involved in any motor vehicle 17 acc~dents before this accident that we're here for today? 18 A Some minor ones, yes. 19 Q Okay. Any within the two years prior to the 20 accident that brings us here today? 21 A No . 22 Q Had you ever had any traffic violations prior to 23 the accident involving Mr. Dutcher? 24 A Yes. 25 Q Again, any within the two years prior to the . . 9 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 1B 19 20 21 22 23 24 25 accident which was February 21 of 1994? A I'm not sure. Q Okay. You are currently married, Mr. Cormier? A Yes. Q Were you married in February of 1994? A Yes. Q And at that time where was your wife residing? A She was living in Maryland. Q Now, on the day of the accident you were traveling to Maryland from Pennsylvania. Why had you been in Pennsylvania? A Again, it was a long weekend, so I was spending some time with my family working on my father's house. Q Had your wife been up that weekend at all or had you come up alone? A I went up alone. Q The accident did occur on a Monday according to the police accident report and that was a day off for you? A Yes, that was a long weekend, President's Day weekend. Q Would your next day of work for the Army have been the Tuesday after the accident? A Yes, Q Do you recall, did you have set working hours at that time? . . l' 1 A Yes. I mean the U. s. Military keeps pretty 2 standard hours. 3 0 Do you recall what your shift was or what hours 4 you would have worked the day after the accident? 5 A That would be a guesstimate or an estimation. 6 0 Okay. 7 A I usually went in for physical training in the 8 morning any time between 6100 and 6130. 9 0 Okay. 10 A That I s when I would start. 11 0 Do you recall, did you call your wife before you 12 left Pennsylvania to let her know you were getting on the 13 road and estimate for her the time you would be getting 14 back? 15 A No, I don I t believe I did. I would have called 16 -- my normal procedure would be to call the night before. 17 0 Okay. And where exactly in Maryland were you 18 traveling to? 19 A Germantown. 20 0 And what route would you have taken from Route 15 21 had the accident not happened? 22 A I take 15 right down to 270. 23 0 Is Germantown right off of 270? 24 A Yes. 25 0 Was your vehicle drivable after the accidsnt? 10 . . . . 1 A No, it wasn't. 2 Q Was your vehicle ever fixed after this accident? 3 A Yes, it was. 4 Q Do you know or can you tell me what the estimate 5 was for the repair work? 6 A I don't know. The ineurance company could give 7 you a better guese at this time. B Q Okay. 9 A I'm not certain. 10 Q Okay. That's fine. Can you describe the damage 11 done to your vehicle? 12 A Not completely, no. 13 Q Okay. What do you recall about the damage? 14 A I mean I know the radiator was damaged because I 15 lost all the radiator fluid, so I had no cooling system. 16 Q What else do you recall about the damage that 17 rendered your vehicle undrivable after the accident? 1B A I also had -- the transmission and everything did 19 work. I mean there was other damage to the front end, but I 20 don't know exactly. I mean I turned off the vehicle after 21 impact. 22 Q Okay. 23 A It was still running. 24 Q And when you visited your family in Pennsylvania, 25 had you typically used Route 15? 11 , . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. o So were you familiar with it on the day of the accident? A Yes. o On your return trip then from Pennsylvania to your home in Maryland, as you were traveling on Route 15 prior to the accident, was there anything new or different about the roadway, itself? A Not -- I'm uncertain. o Okay. A There had been different construction sites along 15. I mean it used to even be a single lane each way. o But in the immediate area where the accident occurred, do you recall there being anything new or different on the day of the accident that you hadn't experienced before? A No. o Do you recall what time the accident happened? A No, not exactly. o How about the weather conditions? A Weather conditions were patchy fog. There was snow on the ground, but it was a little warmer that day, so there was patchy fog. o When you say snow on the ground, do you mean on the side of the roadway or on the roadway, itself? 12 , '. . , , . 1 A No. Not on the roadway. I don't know exactly 2 what the snowfall was or when it fell or anything, but there 3 was snow on the landscape. 4 Q Okay. 5 A Not on the road surface. It didn't fall the 6 night before or anything. 7 Was there any precipitation on the morning of Q e accident, any snow or rain falling? 9 Not to my recollection, no. A 10 How about the roadway, itself, how would you Q 11 describe the roadway surface? Was it dry? Was it wet? 12 It was wet or at least damp in some areas. I A 13 mean it wasn't like standing water, but it was damp. It was 14 overcast and foggy off and on, so the places where it was 15 sunny I'm pretty sure it was pretty much dry. 16 Q Okay. 17 A But the areas where the heavy fog was, of course, 1B it would have been damp. 19 Q In the area where the accident, itself , happened, 20 how would you describe the weather and the road conditions 21 there? 22 A At the area of the accident it was foggy at the 23 time. 24 How about the roadway? It would have been damp. Q 25 A 13 , . . . . 1 , , o When you say it was foggy, did you have any 2 difficulty seeing as you were operating your vehicle 3 approaching where the accident occurred? 4 5 A Excuse me? One more time. o Sure. As you were driving on Route 15 and 6 getting to the spot or approaching the spot where the 7 accident happened, did you have any difficulty seeing 8 because of the fog? 9 A Yes, off and on. It was patchy fog, so there 10 were very open areas that were clear and then you would 14 11 enter a patch of fog and there would be difficulty seeing in 12 the patch of fog. 13 o Okay. Was there any problem or mechanical defect 14 with the brakes of your vehicle on the day of the accident? 15 16 A Not to my knowledge, no. Prior to the accident having occurred on that o 17 day, did you have any difficulty in the use of your brakss 18 or any problems with your brakes working? 19 20 A No. o Why don't you now, Mr. Cormier, tell me in your 21 own words what happened in terms of the accident and then I 22 may have some follow-up questions after your explanation. 23 24 A Okay. Well, I was driving south on 15. 25 and there were places where there was patchy fog. As I came As I said, there were periods of open clear areas 15 1 into the area where the accident was, there was heavy fog 2 and immediately there were brake lights. 3 All that happened in a very short amount of time, 4 but it's amazing some of the details you can remember. - 5 There was one car in the guardrail on the right. 6 Two cars -- there was a vehicle in each of the lanes. I 7 went into the left lane and a car passed me on the median as 8 I was braking. 9 And then I impacted with the pick-up truck that 10 was directly in the lane in front of me, so I pretty much 11 had nowhere else to go other than just stand on the brake. 12 Q Okay. Let me ask some questions now. Do you 13 recall what speed you were traveling on Route 15 prior to 14 the accident? 15 MR. FREELAND: This is before entering the fog? 16 MR. SADLOCK: Right. 17 THE WITNESS: Excuse me? 18 BY MR. SADLOCK:. 19 Q Before entering the fog, right before the 20 accident happened, do you know what travel speed you were 21 going? 22 A No. I can't be certain. 23 Q Any way of estimating what your travel speed was? 24 A Normal estimation, probably for that area of 25 Pennsylvania, I would probably be driving about 60 in an 1 open clear area. In a 55 mile an hour zone I would probably 2 be driving about 60. 3 Q Prior to entering the heavy entering the heavy 4 fog where the accident occurred, what were the traffic 5 conditions as you were traveling on Route 15? 6 A Very light. 7 Q Okay. 8 A When I was in the clear -- one of the reasons I 9 was surprised by the accident is when I was in the clear, 10 there were almost no other vehicles on the road. 11 Q Okay. As you entered the area where there was 12 fog and where the accident occurred, I take it from your 13 description you were in the right lane? 14 A Yes. 15 Q And then you did see brake lights at some point, 16 is that correct? 17 A Yes. The first thing I saw was brake lights and 18 a car in the shoulder, into the guardrail on the right-hand 19 side; so I pulled to the left. 20 Q When you say into the shoulder on the right-hand 21 side, into the guardrail, was it in a position of having had 22 an accident or just pulled off onto the berm of the roadway? 23 A There were brake lights directly in front of me 24 and there was a car on the shoulder, but I cannot be 25 certain. And all that happened very quickly. 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A It wasn't crooked or anything with a corner sticking out into the roadway or anything along those lines. It was on the shoulder. Q Still positioned in the same travel direction as you? A Yes. Q Okay. All right. Can you estimate as best as you can how far from the point of impact you were when you saw these brake lights or how far away from the brake lights you were when you saw them? A That would even be hard to estimate. I mean it was pretty quick into the bank of fog and red lights. I mean it was quick. Q Okay. A I can't really estimate the distance very well. Q Okay. You mentioned then that you changed from the right lane to the left lane, is that correct? A Yes. Q Did you brake at all at that time when you saw the brake lights? A Yes. As soon as I saw the brake lights I started to brake. Q Was there any change in your travel speed? A Yes. 1 Q Did you see any other lights other than brake 2 lights; such as lights from a police vehicle or hazard 3 lights or road flares or anything of that nature? 4 A No, nothing else that I can recall. 5 Q Okay. When you got into the left lane, did you 6 see anything immediately in front of you? 7 A Yes, the pick-up truck. 8 Q And how far away from it were you when you got 9 into the that left lane? 10 A It was almost immediate. The pick-up -- the 11 pick-up truck was only -- I mean it was only a little bit 12 ahead of the car that was in the right lane, like maybe one 13 car length. 14 Q Okay. And was that pick-up truck moving or 15 stopped when you 16 A It was stopped. Brake lights were on. 17 Q Could you see whether or not there were any 18 vehicles in front of the pick-up truck? 19 A No, not at that moment. 20 Q Could you tell or could you see into that pick-up 21 truck, whether there was one or two people in it? 22 A No. It had some sort of camper shell or 23 something on the back. It had a shell. 24 Q Did it appear that that vehicle was stopped for 25 ~omething that was in front of it as best as you could tell? 18 19 1 A I don't know. It was stopped. 2 Q Okay. Was thsre any indication that that vehicle 3 had been involved in a prior accident, prior to you coming 4 onto the scene? 5 A I couldn't tell. There were -- no. I mean all 6 that happened pretty quick. 7 Q Was there anyone out and standing around; that 8 is, around that vehicle, prior to your impact with it? 9 A No, not that I noticed. 10 Q And you did strike that pick-up truck in the 11 rear, is that correct? 12 A Yes. 13 Q Could you estimate what your speed was on impact? 14 A I can't be certain at this time. I may have made 15 a statement then, but I mean that's two years ago. I mean I 16 cannot make a good guesstimate of that. 17 Q Prior to striking that other pick-up truck in the 18 rear, did it move at all? 19 A Not that I know of. 20 Q Okay. You mentioned as well that as you moved 21 into the left lane there was a vehicle that was passing you 22 on the median? 23 A As I was braking, yes. I mean once I saw what 24 was occurring, my immediate thought was to go to the 25 median. As I thought of going to the median, a white car . . 20 1 passed me on the inside on the median. Passed you on which side? On my left. Was there a travel lane or a left turn lane Was it involved in any impact with either your vehicle, the pick-up truck in front of you or Mr. Dutcher's vehicle? A It was not involved with mine. I wouldn't know about anyone else. Q Did you ever see that vehicle that was on the median to your left either stop or re-enter the roadway prior to the accident? A I don't know. I mean this was a 20 car -- a 20 2 Q 3 A 4 Q 5 there? 6 A 7 Q 8 A 9 track of. 10 Q 11 12 13 14 15 16 17 18 No. Was that vehicle involved at all in the accident? I couldn't be sure. That's not a detail I kept 19 vehicle accident, about, so.. . 20 Q Okay. 21 A There was a big mess that day. 22 Q Did you see any other impacts or accidents? 23 A No, I did not see them. 24 Q Now, you did strike the vehicle. the pick-up 25 truck in front of you in the rear, is that correct? , . . . 1 2 3 4 5 6 7 A Yes. Q Was there any reason why you did not stop prior to striking it? A Yes. The pick-up truck was sliding -- I mean I was standing on the brake pedal. It has good anti-lock brakes and stayed straight in the lane, but the pick-up truck is very light in the back end. 8 Q Okay. 9 A And I could not get a complete stop. 10 Q Okay. What, if anything, happened to that 11 pick-up truck after you struck it in the rear? 12 A In reference to what? It had damage to the rear 13 end. It was still drivable. 14 Q Okay. But was it moved at all by the impact with 15 your vehicle? 16 17 A I'm sure it had to move some. I cannot be sure of a distance or anything or -- I mean I don't know. 18 Q Okay. Did you see it move forward at all from 19 being hit in the rear by you? 20 A I don't know. I mean that's not a detail that I 21 recall . 22 Q After the accident -- or let me ask this, first, 23 Mr. Cormier, did your vehicle stop immediately after the 24 impact or did it continue forward a short distance? 25 A Again, I don't know. I mean when you say a short 21 . , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 distance, I don't know if there may have been some small movement. It pretty much was in that same area of the accident. Q Okay. After the final rest of your vehicle, did you get out of your truck? A The first thing I did -- yes, I did get out of my truck. Q And what did you do when you got out of your truck? A I checked on the people in the truck in front of me. Q Okay. Did you see if there was any damage to the front of that truck? A No, I didn't even go all the way around to the front. The driver of the truck came and met me at the rear of his truck. Q Okay. Was there any discussion with that driver about the accident? A The only thing I can recall is the driver saying I thought it was allover. That's the only words that I remember. Q Meaning what, if you know? A That's the only words that I can remember in reference to the actual accident. He got out of his truck and he said I thought it was allover. 22 , . . , 1 I'm sure he said some other things, but those are 2 the only words I can remember clearly this long after. 3 Q Okay. Did you ever learn of the impact with his 4 vehicle and Mr. Dutcher's vehicle? 5 A Excuse me? . 6 Q When, if ever, did you learn about the impact 7 between that pick-up truck and the rear of Mr. Dutcher's 8 vehicle? 9 A Mostly from this lawsuit, I would think. I 10 couldn't be certain of where I first heard of it. It had to 11 be through the insurance company and the initiation of this 12 procedure. 13 Q Okay. Did you have any contact with Mr. Dutcher 14 at the site? 15 A No, not that I know of. 16 Q Do you even recall his vehicle? 17 A No. I know there was a car in front of the 18 pick-up truck. That's about the extent of it. 19 Q Did you see whether or not it had any damage? 20 A Well, I mean we had hours there to walk around 21 and stuff. Yes, I know there was an impact between the 22 pick-up truck and the car, yes. 23 Q Okay. 24 A The extent of the damage, I couldn't tell you. 25 Q Okay. You just said, you know, that there was an 23 , . , . . . 24 1 impact between the pick-up truck, meaning the pick-up truck 2 that you hit and the car? 3 A Yes. 4 Q WaD that a result of your initial impact with the 5 pick-up truck? 6 A I would not know personally. I think the only 7 person who could answer that would be the man in the pick-up 8 truck in front of me. 9 Q Did you ever discuss that with him? 10 A Not that I can remember. 11 Q Okay. And you've had no contact directly with 12 Mr. Dutcher? 13 A Not that I know of. I mean -- it was a major 14 accident and there were many people out of their cars, so I 15 may have had some contact with Mr. Dutcher; but not that I 16 know of. 17 We did not exchange insurance companies or any of 18 those other things that were going on that day. 19 Q Do you have any reason to believe that the 20 pick-up truck that you struck was involved in the prior 21 accident that was on Route 15 that morning? 22 A I would not know. 23 Q Or that Mr. Dutcher was involved in that prior 24 accident? 25 A Again, I would not know. , . . . , 25 1 Q Do you have any reason to disagree with Mr. 2 Dutcher's statement that he was stopped and was not involved 3 in that prior accident? 4 A Again, I would not know. 5 Q Do you have any reason or any fact to suggest 6 that Mr. Dutcher himself was somehow at fault for the 7 accident involving you? 8 MR. FREELAND: Objection. I believe that's a 9 conclusion of law, not a question of fact for him. I don't 10 know that he's capable of answering that. 11 MR. SADLOCK: Well, there's an allegation in new 12 matter that Mr. Dutcher was comparatively negligent and I 13 want to know what reasons he believes for that, that Mr. 14 Dutcher was negligent. 15 MR. FREELAND: I think you can do that through 16 questions of fact. He can tell you the facts he has, but to 17 ask him the conclusion of law, what he believes that the 18 plaintiff did that amounted to negligence, I believe the 19 facts will speak for themselves. 20 BY MR. SADLOCK: 21 Q Let me ask it this way and see if it will satisfy 22 your attorney; Mr. Cormier, are you aware of anything that 23 Mr. Dutcher did wrong that was a factor in how the accident 24 happened with you? 25 A I would have no way of knowing that. . " . I 1 0 Your answer with new matter also includes an 2 allegation that either someone else or some other entity may 3 have caused or contributed to the accident. 4 Are you aware of anyone else or any other entity 5 that may have been a cause or factor in how your accident 6 happened? 7 A If you talk about the entire thing, after talking 8 to a police officer that day, there was an accident about 9 five minutes prior to ours in the northbound lane. 10 Q Okay. But you don't know whether or not the 11 pick-up truck in front of you was involved in that accident? 12 A No. 13 0 And as far as you know, the pick-up truck in 14 front of you was stopped with its brake lights on prior to 15 getting hit in the rear by you? 16 A Again, I would have no way of knowing whether 17 that pick-up truck was involved prior to my hitting him or 18 not. 19 Q But what you do know is that it was stopped and 20 its brake lights were on when you hit it? 21 A Yes. 22 Q And I take it from your earlier answers that you 23 never saw Mr. Dutcher's vehicle prior to your striking the 24 pick-up truck in front of you? 25 A That's right. " 26 , . .. " . ., , 27 1 0 According to the police report, that vehicle was 2 driven by a Stanley Kochevar. Do you know that that is the 3 name of the individual who was driving the vehicle you 4 struck? 5 A I have it written down somewhere. 6 0 Okay. 7 A No, off the top of my head I don't -- I remember 8 that his first name was Stanley. 9 Q Okay. Was he injured? 10 A He had an abrasion to the top of his head from 11 rubbing it on some -- on the material that was on the top of 12 his cab. 13 Q Okay. Was there anyone in the vehicle with him? 14 A His wife. 15 Q Was she injured? 16 A Not that I know of. 17 Q Have you spoken with them at any time since the 18 accident, Mr. Cochavar or his wife? 19 A One time in reference to insurance companies and 20 then the insurance companies pretty much handled it from 21 there on. 22 Q Did you ever review the statement that Mr. 23 Kochevar gave to Nationwide Insurance Company? 24 A No, I have not. 25 Q I'm going to read you a passage from his .. . . . 28 1 statement and then ask you a question regarding that. 2 He indicates in discussing this prior accident 3 that you were just discussing, he said that ultimately he 4 came to a stop in the passing lane behind a white Cutlass 5 Supreme. 6 We were stopped for I would say approximately 7 five seconds because we thought we were clear of everything, 8 having come to a stop, when a 1992 Chevy S-10 pick-up truck 9 hit us from the rear and forced us then into the car in 10 front of us. 11 The car in front of them was Mr. Dutcher. Do you 12 have any personal knowledge or factual basis to disagree 13 with Mr. Kochevar's statement? 14 A No, I would have nothing to base that on. 15 Q And again, just so I'm clear, Mr. Cormier, after 16 the accident when you got out of your vehicle, you were met 17 by Mr. Kochevar. At any time did you see the front of the 18 Kochevar vehicle? 19 A No, not to my knowledge. 20 Q Okay. Or how about the rear of the Dutcher 21 vehicle? 22 A No. Again, I know there was a car in front of 23 the pick-up truck. That was about it. 24 Q And again, no recall of having spoken to Mr. 25 Dutcher? ., . -:~;~''"''{~~~-4'''''-i~-:vr:'~'':':-'''''-, ;, ......:-..... ....-.-~~-;~.~,.~. .,;.." . .. . I' I , .. , 29 1 A No, but it -- again, there were a lot of people 2 involved. I talked to a lot of different people that day. 3 0 Okay. Do you have any personal knowledge 4 regarding Mr. Dutcher's injuries or how he was feeling after 5 the accident with you? 6 A No, other than what I've read in this particular 7 legal action. 8 0 But nothing from the day of the accident? 9 A No. 10 MR. SADLOCKI Thank you, Mr. Cormier, I believe 11 those are all the questions I have. 12 THE WITNESS: All right. 13 MR. FREELAND: I don't have any questions. 14 15 p.m.) 16 17 18 19 20 21 22 23 24 25 (Whereupon, the deposition was concluded at 1132 . .. II t II' .. , ... . . 30 1 COUNTY OF DAUPHIN 2 I SS 3 COMMONWEALTH OF PENNSYLVANIA I 4 I, Tammy J. Baker, a Notary Public, authorized to 5 administer oaths within and for the commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of KEVIN J. CORMIER. 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify that the said deposition was taken 14 at the time and place specified in the caption sheet hereof. 15 I further certify that I am not a relative or employee 16 or attorney or counsel to any of the parties, or a relative 17 or employee of such attorney or counsel, or financially 18 interested directly or indirectly in this action. 19 I further certify that the said deposition 20 constitutes a true record of the testimony given by the said 21 witness. 22 IN WITNESS WHEREOF, I have herElUllt'-, set my hand 23 this 9th day of November, 1996. 24 t\C T - "AL SEAL 1~M~rl . :'. .: ~lIlrl Mill LIllI Sull' I ". ,'. "~tl, Pl. Va~1';!.0LL .S;<'....k...<.- Tammy J. alter, Reporter Notary r blic 25 ---- ~ .. . . .1. .. . . . t . '5-106 ROBBRT M. DUTCHBR and MARY DUTCHBR, his wife, Plaintiffs IN nIB COURT OF COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLV ANIA vs. DOCKBT NO. 9.5-.5381 CIVIL ACTION - LAW JURY TRIAL DEMANDED KBVIN J. CORMIBR, Defendant CBRTIFICATB OF SBRVICE SCOIT A. FREELAND, BSQUlRB, hereby certifies that he Is the attorney for the Defendant herein, and that he caused a true and correct copy of Pr1ecipe to Attach Deposition Transcript of Defendant, Kevin J. Connler tD be served by hand delivery upon: Richard A. Sadlock, Esquire Anllno &. Rovner, P.C. 4.503 North Front Street Harrisburg, PA 17110 L--1 Jd&,)r;') I Da~ a,~~ Attorney for Defendant )-, ,.. 1:: ~ u: ,.;;~ ID .. I~ I.: ~ ~:5?i \ ..I~ _. (. o.tj. :....,~ '\':. Wf.JiJ} U' C~ -..t!S '1'", m :.\l~ r.: ..... ~~ u.. :- ._1 o Ct' u i fI) ... & ..~ i , S~!ii~a !~jiia~ .3~:! .~~ !iN c:l !! . .. ..' · ." *t io .. .. .. 11ID_IW4G1 lIoNAUIa.1Il-. IIlorr A. ftDl.WI A_ RvBINATE, JACOBS" SAIIA CNor "'11II11 I 214 SlNAT& AVlNUI IlUITI 51.1 CAMP Hlu.. PA 17011 mnm.. 'All (1171 711., .....J.--,. ---"A '""IPL..J~ W"'-ua.'A ~.I.IiuA... W....__. 'A IaDTo: 95-106 August 6, 1997 The HOIIOnb1e Kevin A. Heas Cumberland County Courthouse One CourthoulO Square Carlille, PA 17013 RB: Robert M. Dutcher and Mary Dutcher vs. Kevin J. Connlcr Cumberland County: No. 95-5381 Doll' Judp Hess: It II my undcntanclln8 that the Defendant, Kcvin J. Cannier, has returned to the United Statea. PIcuc remove the Stay Punuant to the Soldlcl1' and Sallol1' Civil Rellcf Act of 1940, 50 v.S.C.A. Ipp. 510 Il'Illted on Pebruary 26. 1997. Thank you for your kind attention to these mlttel1. Scott A. Preeland SAP:lsw c: Richard A. Sadlock, Bsqulrc t , , NO. 19 ROBERT M. DUTCHER and MARY DUTCHER, his wife, Plalntllli IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 95-53111 CIVIL KEVIN J. CORMIER, Defendant CIVIL ACfION. LAW IN RE: PRETRIAL CONFERENCE Present at a pretrial conferenrc held February 26, 1997, were Richard A. Sadlock, Esquire, attorney for tbe plaintiffs, and Scott A. Freeland. Esquire, attorney for the defendant. The plaintiffs claim damages as a result of a rear-end motor vehicle aceident. The defendant contests liability and there is a question with respect to the amount of damages by virtue of an alleged pre-existing condition. The defendant currently finds himself stationed in Italy In the Armed Forces. Early on in the litigation he filed a petition seeking a stay pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, SO U.S.C.A. 510. The defendant will he returning to the United States in July and despite continued military service will he avallahle for the trial of this case. A request of the defendant for a stay was argued at the pretrial conference and the plaintiffs suhmitted case authority whieh we have now reviewed. Our review docs nothing to change the conclusion that we reaehed at the pretrial conference; namely, Ihatthe stay requested by the defendant should he granted until his return to the United Slales In the summer of 1997. Thereafter, the onus wlll he on counsel for the defendanlto list the matter for trial, prnmplly, though nothing herein wlll prevent counsel for the plaintiff from also doing so. An order providing for this arrangement has been entered of even date herewith. Fehruary 26, 1997 tl. ;.,;o.:C..._._i.';;';"'" \ . .) Fi~rD-O:TICr: 0- .,.- ,'""., """-Ir'V ~." :.' . If. "lh11 1'7 F"'"'' 7 ' 'I') "'} :J Cl._' l~ /," t: ,.... CiU\-L:..:! '. .:,'; .:.:;'U'l fENN~\l\\'\i ~1\ i. '\ Richard Sadlock, Esquire For the Plalntlffa &coli A. Freeland. Esquire For the Defendant :rlm . It'~.l. ~/~'1/.". - c~ Ai. . lr ease I~w. In\ended ID Ie the realm fore UI, the nmon Pleaa .juncLlon on Iber 8. 1989, I made per. eahe~' dawd lal has been I~r of thOS" In pr',~lblted Id all oth_rs concert with IIn picketing alley No, It! order lndud. ,t th~ parties . meet for the ..gardlng the nvolving Val. lber 22, 1989. Inn. Indiana. nber 28. 1989. , decided upon ~ED ID report .actlcal follow. 19. meeting a. de In the re.o. TED ID make setlle the said ,Ither by nego. vlth the aid of ,I machinery of 'bltrallon, IIY .hall preju. I. the parties' riaII'. RT: ~ hey, Judge rmanentlnJunc. ,ingly almllar to ahey'a two .uo fJvD ~ ~~~ IIRUUER v. CARI.IN (;. . l '" CII... 1M A.J4 ... 1'..Iu,.,. 1"11 - J ';d'".pon/r orde", I..ued In May 1990 In.ofor ample mears by which either party can '" aa all three ordera Indude exhortAtion. for s.ek redr... in the court of common pleaa continuing negotiatiun. atlo<'al mlltels with at any time without Interference by ar, a view to aettllnlf the undetlylnlf lubor dls. inlermedlate appellate court. Where nel. putt>, The fanner order Ifranting Injunc' ther party .oughlthe order which haa heen tlve relle! agaln.t the Union, doe. nOlt re. entt>red. and wherc neither party I. ex. fer to a .tate medii tor. but the reque.t for posed to any cllncelvable Irreparable harm continued ncgollallon. II otherwise the by adhering to the order. and where both same. Yet Valley rAlal Old not aplwal the parties remain bdore the trial court on all permanent Injuncllon of November 20, lsaue. that have .urfaced. we decline \0 1989, label Judge Leahey', orders a. additional We do not rest our decl.lun on 1l.la ai' Injunellons In thl. labor dispute. peal on any LllOory of waiver. however, We do not decide whelher .tate law pro. since the form of ,he orders under review vldes the authority ID order parties In a prevent us from concluding that Section I.bor dispute ID mediate their collective 311(aH4) i. applicable, We recognize that bargalninlf dlf(erence. under the direction our Supreme Court, In dictum. has .ald of a state medlalDr. Nor do we dedde. on that an Injuncllon is a court order prohlbll' this appeal. whether a .tate judge I. with. Ing or commanding virtually any type of out authority \0 regulate conduct arguably action, fA,;n I', Bomh. 505 ia, 514. 523. protected by the National Labor Relations 481 A,2d 1183, 1187 (1984). P.L.E, lnjunc. ACI tlon. f 2. Vol. 18, page 265 (1988), Since the urders sought to be reviewed We are her. presented wilh a situation con not b. said ID b. injunctions, the)' are where the trial court haa, in fact. Issued outside the reach of Rule 311(a)(41, We both a preliminary Injunction and a (lnlll have found no other rule or .talute which Injunctl~n on behalf o( the party now seek. wnuld support an appeal of theselnterloeu, Ing reView of these .ub.equent orders, tory orders as a matter of right. Accord, Where four s~parale petitions for contempt Ingly. we are constrained to disml.. Ih. have been filed by one side. a separnle .ppc.ls, conwmpt pelltlon by the other, and where A I DISMISSED the court h.. dlsml..ed all petitions (or I'pen · , contempt. we cannot aay that subsequcnt orders directing both psrtles to continue negotlstlon. are InJuncllon.. particularly where neither side hsd requested the "re- Iier" under review snd the orders hBve not been granted at tbe suit of ellher part)', We view the orders of November 8, 1989 and November 20. 1989 61 injunctions. for they esch were entered at the .uit of V.I, ley Cosl and they each forbid the Union. from performing certain aclll whl-h they were threawnlng or attempting ID commit, Neither o( tho.e orders have been brought before UI for review, We doellne to claasl(y the oNera of May II. 1990 and May 23. 1990 61 injuncllon., Neither order contain. a remedy or a rllfilt ID which either ~arty ID thl. dispute might be entllled and which I. withheld rrom thst party. Neither order take. anything awpy Personal InJury action waa (lied, The from the disputant.. Both orders provide Court o( Common Pleaa. Che.ter County. Pa, 441 iI' " , 'Ii , I , . ., :' :' o ''''IIIt'I'''''II. Peter B. BRUPER. '. .' v. John L. CARLIN and Jay It. Carlin, Appeal or Jay R. CARLIN. Pettr B. BRUPER. Appellant. .' Y. John L. CARLIN and Jay It. Carlin. Superior Court o( Penn.ylvania, Argued Sept, 27. 1990, Flied Feb, 15. 1991. 442 Pa, 586 ATI.ANTIC H.:I'OHTER. 2d 1I.:H":!! I Civil Division. No, B~43B2, Smilh. J,. awarded compensatory damages to plain. tiff bul ...fused to award dela:; damages on basis of Soldiers' and Sailors' Civil Itelief Act because defendanl was in military ser. vice for portion of time I,rior to trial uf action, Plalnllff aPllOaled, The Superior Court. Nos, \49 and 314 Philadelphia 1990. lIeck. J,. held that: (I) new rule of civil procedure lloVerning delay damag.. ap' plied to case pending on appeal as of effec' tive da\<! of rule. where lssue had been preserved. and (2) facllhal defend ani was In military was cause for reduction or avoidance of delay damages only where II was demonslrated lhal military servke of defendanl was responsible for delay of lri. al. and lhal defendanl was demonstrably prejudiced in his abilily to I,articlpa\<! in pro<eedlngs as resull of mllllary s,'rvice. Affirmed in part; rt.i\'t.'rtlt.'d nnd reo manded In par\. I. Inlerul *"U New rule for calculaling delay dam, ages aplllied to case pendlnl( on appeal os of effective dale of new rule, where issue of delay damages had been preserved, even lhough lrial courl had decided delay dam, nge question prior 10 effective dale of rule, Itules Civ,Proc.. Itule 2:18. 42 Pa,C.B,A, 2, Armed Service. ~3M(7) Facl lhal defendanl was in millUlrY was cause for rt.'ductiol1 or a\'oidance of delay damages only where il was demon. slraled lhal mililary servire of defendant was responsible for del a)' of lrial; dela)' damages award could be reduced only 10 accounl for lhose periods of delay where defendanl was demonstrably I"ejudiced in his ablllly to participaw In proceedings due 10 his mllllal')' service and lhal InabllilY to purtlcll,ate resulwd in delay of trial. Sol. dlers' and Sailors' Civllltellef Acl of 1940, t 100. as amended, 60 U,S,C,A,AIIP, t 610, t. On direct appeal ddrndanl failC'd . ,in.lt iuut which \.\,,( find waive-d. Ill' .utrllth.ltht ulal tDUn crrrd In permillln, ddtnlot (nun",1 In his dOllna araumcnllU nltf 10 lift Clptetln' ey II.tll.ln published hy lhe Unllrd SIIIU Dr. par1mrnl 01 "ralth. l~uullon and WrU.rr 3. I nlerul .,,\4 Under new rule for calculallng delay damages, defendanla arc excused from lia. bllily for delay damages lor time after lhey make wrillen selllement offer where plain. tiff does nol recover more lhan 125','1. of offer and where offer is kepi ollOn for time s,lOrifled In rule; in addlllon. no delay dam. ages accrue for periud of delay where plaintiff has caused dela)' of lrial. Hules Civ,Proc,. Rule 23B, 42 Pa,C,S,A, .. Armed Be...lcu ~3U131 Soldiers' and Sailors' Civil Hellef Ael of 19.0 Is nollnlended to provide automatic relief from normal progress of civil litilla. tion to defend ila mililary. bul rolher to provide such relief ollly where warranted under cireumslances; overriding require. menl Is lhal mililary service of defend.nl be shown to have prejulliced defcndanl's abllily to deCend himself heCore special leave can be granled to him under Act, Soldiers' and Sailors' Cil'i1 Helief Acl of 1940. tt 1-701. 100. as amended, f,O U$,C, A,App, tt 501-691. 510, Thomas 0, Malcolm, We.l Chesler, Cor al'pellanl (al 1491 and appellee (al :114), John M, Sheridan, Media, Cor appe\lanl \al 3141 and appe\l,'e (al 14\11. BeCore BECK. KELLY and POPOVICH, JJ, BECK, Judge: This is an appeal and cross,al'l'eal frolll a judj(menl entered on a jur)' I'erdlct In a personal Injury sull. The Issue we allllress is whether lhe trial court erred In refusing to award plaintiff delay damages on lhe basis of lhe Soldiers' and Sailors' ClvllHo- lief Ael of 19.0, 60 U,S,C,A, ApI', It 601- 591 (lOBI} (lh. Act), because rlefendanl was in military service for a porlion of lhe lime \Irlor to the lrial of lhls action,' whtrr nu such ,vidence WI' lnlroducrd 111rlll. Tht i'\ur 1& wahtd bf~.UioC II f.1I1 iqu.rrly wUhln the mlndalt' of Tdl"dni ", UM', 49] ra. 371.426 A,2d 595 (1981), Th. I"u, w. add".. \Nil ulionJ on non Ipptll. culaUnK d.lay 'uaed 'rom Ila. Jme after th.y ,r wh.re plain. than 126\'1> 0' open 'or tlm. no d.lay dam. delay wh.re r trial. Rule. '.S,A. I vII Rell.r Act vld. auwmatic 0' civil litlKa. but nther to ere warranted idlnK r.qulr.. 01 der.ndant d de'endant'. ..rore .pecial m under Act, R.ller Act of ded. 50 U,S,C, : Ch..wr. for .Il.e (at 314), ror app.llant '.' appeal lrom a v.rdlct In a Je we addre.. .d In r.lu.lng n.gea on the lora' Civil R.. App, II 501- 1.lend.nt was m of th. tim. 10n,l roduccd Illrl.1. I '111. Iqulrrly v. U\4', 493 Pa. \Sue we .ddren HRlIIlt:" v. (:ARI.IN cu,.. 1M A.Jd .., I'..SU,.,. 1"" I'a, 443 W. aWrm the judRment 01 the trial court In.olar a. It award. comlM!n.atory damaRel to 1,Ialntlrr, but rev.rae th. trial court'. relUlal to award delay damag'" amI r.mand lor calculation 01 tho.e dam' liRe. under the Act and new rule 2:18, The IlIrtle. were involved In an acrident on July 14. 1983 In which plalntlrr a\lll"II,'e, I'ewr n. IIruder. a I",destrian, wa' .truck b)' an auwmoblle 0110 rated by del.ndant a\lllellant. Jay II. Carlin, Suit wal Inllltul, ed by writ 01 .ummonl In mld-1985. 101, low.d by th. ruing 01 a rom plaint on Janu' ar)' 17.1986, Th. ca.. wal trl.d to a jury on June 11>-17. IOb8 and re.ult.d in a luhlwnllal verdirt for plalntlll. 1'lalnurf'1 pelition lor delay damaR'" wal dcnled and judRment on th. verdirt wal enwr.d, On cro..'.ppeal. plaintllf rallel an im, porUlllt'luestloll reRarding delay dam.gel. The Irial court denl.d plalntirr del.y d.m' .ges lor the r.alon that delelldalll 11"" In the military lor a portion of the time he' tweell the ruinR 01 the complaint and th. trial 01 thi. .ctlon, Th. court lound that Ihe Act prerluded the Imposition 01 any pellalty on a delendant in th. military ler. vire, 111.0 ronrludlnR, the trial court ap' plied the sWlldard enullclat.d by the Su, preme Court ill Craig I', "'agce Memorial Rehabilitation Centtr. 612 Pa, 60, 6H, A,2d 1:160 (1987), and not n.w rule 2:18. At the time pl.lnllrl rued hi. I",tltlon lor delll)' damages. new rule 238 wal not yet In ,.1, leet. Th. n.w rul. did not b.cnm. "rrec' live untllthr.e month I afwr the trial court ,h'nied del.y damag.., Th. precile chronology 01 .vents was al 101101"5, Plaintlll petltlan.d lor d.lay dam' .g.. an Jun. 22. 1988. within len day. 01 the jury's v.rdlct. D.I.ndant oppo..d th. petllloll alld th. court .nlend Its opinion .nd order denying d.lay damaR'. on Au, gu.tI7. 1988, Within len day. th.r.all.., 1,1.lntlrr riled a POlt,trial motion conwndinR that the delllal 01 delay dam.g.. 1"" In error. S.veral months lawr. on May I. 1989. plalntlll allo .ought reconllderaUon 01 the d.nl.1 01 delay damaRe., On Dec.mber 12, 1989. the trial court denied plallltllf'. mo. tion lor ,"con.id.rallon, l'lllntlll contendl that the Act doc. not IJrl'tlud. d.lay damage. and that n.w rul. 2:18 apl,Ii.. under thl. court'. derlllon In Cemini 1', Vallell Vitu' Trailr. I'a.k. :lRO l'a,Sul,,'r, 416. f,r,2 A,2d 258 (l98l1). (01"'" ru/rd on o/hr. ground. in King I', Sf:/,. TA. 383 l'a,SullOr, 420. 667 A.2d II (1989)), Thll rourlnow OIu,t deride t....o qu...tlon.: I) ....hether th. Act prerladea delay dam. agea and; 2) II th. Act doe. not preclude delay daOla~e.. II the applicable Iwndard C.oig or n.w rule 2:18, We conrlud. that the Act does not totally prerlude delay damaR'. and that th. al'pllcabl. .tandard la new rule 238, We lil'llt addre.. the applicabl. standard lor delay dlmagel, III N.w rule 2:18 hecame ellectlv. on Novemh.r 7. 1988 and wal apeclllcally made applicable to "actionl p.ndlng on or oner the ellectil'e date 01 thil rule In ....hlch damaRe. lor delay hav. not been delermin.d," l'a,ltC,", 238(0, Thu., the neW rule became errectlve aller th. Irlal court had derided the d.lay damaRe. quel' tlon, but belore th. court decid.d plalntll". pOIHrial motions, W. conrlude that n.w rul. 238 al'I,lIel, Slnre ca.e law haa eltabllsh.d that new rule 2:18 applle. to caa.. pendlnR on appelll as 01 NOl'ember 7. 1988. where th. I..ue hili been Ilreserved. Ctrt6illi. .up.a, It Is clear th. new rule appllel to active c.... In th. pr..al'peal .laR', Alth. time th. nell' rule wal promulRated, th. trial court in thil cale had not yet d.rld.d the IIO.t,trlal motlona, Cf Jil/orri t', Fell'..... 390 I'a, SUllOr, 209, 213. 668 A,2d 618, 621 (1989), Ther.lore. th. trial courl had not y.t made itllllnal d.termlnatlon on the IlIue. and the new rul. II applicable, 121 Having d.wrmln.d that th. n.w rule apl,lIel. w. n.xt addre.a the ellect 01 aflllellant'l military ..rvlc. on the aWlrd 01 delay damag.s, Th. qu..tlon of wh.th.r aflll.llallt'. military a...lce preclud.. an Iward 01 delay damaR'" mu.t be r,"olved by con.tructlon of both the MIl. and th. Act, The n.w rul. and th. cu, law limits the clrcum.tance. undor which I d.l.ndant may reduce nr avoid d.lay damagel, W. mu.t d.cid. wh.ther military .ervlce 444 Pa, 586 ATI,ANTIC REPORTER, 2d St:R..:S should be Included In the Ii,t or IImlwd cIreumslanees, ; 131 Under the new rule, derendanIB arl! excused rrom lIabllily ror delay dalllOges ror the lime arwr they make a writwn seulement orrer where lhe plalnlllr does not recover more than 125 percent 01 the orrer and where the urrer Is kepl open ror lhe tinll' specllied In the rule, In addilion, no delay damages accrue ror the period nr delay where the plaintirr has caused lhe dela)' or the lrlal, Schrork I', Albtr/ b'in. Ilrin Mrdical Crnlrr, 386 Pa,Super, 215, 216, 562 A,2d 876, 876 (1989) allocll/nr granlrel, 677 A,2d 891 (90), The rule has also been construed to allow avoidance or dela)' damsges where the derendanl has made a selliemenl orrer lhal exhausIB his re.ourCe.. lei, 386 Pa,Super, at 217, 662 A,2d al877 (citing Berry I', A "elefSon, :148 l'a.Super, 618, 602 A,2d 717 (1Ua6)), We now decide whelher derendanIB' milit.llr)' .ervice excu.e lhelr liability rllr delay dam, llR~8, The trial court would have permitted the derendanl to avoid delay damage. because or his military service, The courl round Ihat where, as In this case, the delay is "Iarllel)'" due to the delendant's mllltar)' service, the Act precluded the Imposition or dela)' damages,1 The court based this con, c1usion not on sny sl,ecific provi.ion of the Act, but rather on a Ileneral .ense that the Inl"nl of the Act was 10 preclude any ad, \'erse consequences (or one who Ben'es in the military, Trial Court Opinion, at 1-2, We do not wholly SKree with the trial court's interpretation, ~. 141 We have carefully exsmined the Act and find thaI it alms al a suspension of lhe enforcement of civil liabilities and legal ,..... G1J v ~ proceed InKs Invoh'lnlllhose In milllary ser' ~' Ice so as 10 avoid any prejudice 10 their ~ ' 'ghIB while lhey art .ervlng, The Acl so . . staws In lIB In Ilia I slatement or purpose: b....,~ 2. Thr trl.l cnun ,liD rtlitd In p,ulo. on 1wo l) .. '^ ., Pro",yh,."I. 1IIIUIOry f'lro\lhlon., P,.Conl,Stal. ~ Ann II', 18, t 7l1l (Purdon 1?71) Ind PICOno. . 5111.Ann. ",. 5t, t 1l1l'l (Purdon 1982). Tht court ".Ird Ihallhc spirit of Ihnt wellons .110 prtc1udrd In)' .d\,tue (U",rqUtllrn fur . per. In order 10 provide for, strengthen, and eXllOdite the nalional defense under lh. emergent conditions whlrh are threawn. Ingthe peace and securlly or the Uniwd Sla"'s and to enable the United Slaws the more successfully to fulrill the reo qulremenlB of the national derense, pro- vision Is made 10 .uspeod enforcement of civil liabllllies, In certain cases, or per. sons In the military service or the United Slates In order 10 enable such ,1O..ons 10 devo'" their entire enerllY 10 the de se nee s of I e at on, an 10 I Is end lhe lollowlllg provisions are made for the temporary suspension or lellsl proceed. ings and transactions which ma)' preju, dice the civil rights of ,lOnons In such .ervice during the period herein specirled over which this Acl , " remains in force, 511 U's,C, ApI', t 610,1 Allhough this sla"'ment or purpose could be read 10 require lhe automatic sus- pension or legal proceedings against per- sons in military service, the Actltselr does not so provide, Rather, the specifics of lhe Act are permeawd with the overriding reo qulrement thaI the military service of lhe defendant be shown to have prejudiced lhe defendant's ability 10 defend himself before special relief can be granted to him under ...:.' the Act, See Kcefe I', Spollgenberg, 633f F,SUI'p, 49 (D,Okla,198\), For example, seclion 620 of the Act allows for the open' ~ ing of a default judgment entered allainsl a ~ defendant durinll his militAry service, but only If it sppears that lhe defendant was prejudiced In makinll his derense thereto as a re.ult or his mllllary service, 50 U,S, C,A, ~pp, t 620(4), Similarly, section 623 permlIB a court to slay the execuilon of a judllmenl against a serviceperson unlrls lhe court finds lhal lhe ability of lhe per. son to comply wilh the judgmenl Is not materially affected b)' his mililary service, Id. t 623, These provisions demunst..", that the Act Is nol Inlended to provide aUlomatle ~n Ro'ln, In the military. Ncllhrr Ilalule h apposite 10 the 'nut prntnltd. hen. Ind nder tho :llreaten. e United d Stat.. the re- nit, pro- ement of of per- e United ,nons to deftnse end the for the proceed- ,y preju- In such specified in force, purpose alic sus. nst per. ..ll does :s of the idlng reo e of the Ilced the ,f before 11 under erll, 633 .xample, he open' gslnst s 'Ice, but ant was ereto as 60 U,S, lion 623 Ion of I unl." the per' t Is not service, hat th. ltomalie ,IIIU1t II bl. 10 III .1 llalei. Pa, 445 BRUDER v. CARLIN CII...... A.J<I 64' I'......" '"II relief from the norma' progress of civil cause it does not exempt military penonnel IItigstlon to del.endanta In the mllllJlry, but from the effect of the rule where they sre rather to proVide luch relief only where able to partlclpalA! and, preBumably, to ful- warranlA!d under the circumstances, Id,; fill their responsibility to make the requl. R.bar v' Rebar, 166 Pa,Super, 341,67 A,2d site settlement offer which will slDp th 698 (1949) (period of time in mllllJlry Ber' accumulation of delay damages, e vice may be counlA!d in computing lime of desertion by husballd of wife, thus provld. Having so coneluded, we find that ..e ing grounds for diva..> under Ilrior law must remand this caee to the trial court for where continuation of desertion wae noi apl,llcatlon of the standard set forth above due lD military restraint); Pokrzywnicki v, and for calculation of delay damages under Kozok, 363 Pa, 6,44 A,2d 247 (1946) (chan' new rule 238, Here the Iris' court made cellor Bhould have allowed filing of excep- only a general finding that the delsy waS tlons nunc pro lunc while excel,llng party "largely" due to the military service of the was In, military service and, therefore, lA!n defe~dsnt, nollng Bpeclflcally that defen' day flhng deBdline was difficult for him lD dants deposillon had lD be postpolled due meel), lD his military service, However, our reo ApplyingthlB general InlA!nt lD the ISBue ,'iew of the record revealB that the deposl. of the propriety of awarding delay dam. lion was delayed for only a few months and ages under new rule 238 In cases brought the trial court did not consider IVhether this agalnBt military defendanta, we find that short delay In the depoBition aClually de. the fact that the defendant was In the layed the trial of this maller, Further. military should be cause for reducllon or more, there Is no indication that de fen' avoidance of delay dsmsges only In those dant's military service impacted on his abll. cases where It Is demonstrated that the Ity lD defend or part\clpaw in any other military Bervice of a defendant was respon' way or caused any other delay of the tria\. sible for the delay of the tria\. The delay We now that defendant was represenlA!d damages award should be reduced only lD by counsel throughout these proceedings account for those perlodB of delay where and defendant appean to have parllclpalA!d the del.endant was demonstrably prejudiced in the caee through his attorney at several ~n his ability lD parlicipalA! In the proceed, limes while he was in the military, We lOgs and thalinsblllty lD partlclpalA! result. also point out that defendant was dls' ed In a delay of the trial, charged from military service in December This standard adequBlA!ly takeB Bccount 1987 and the jury did not return ita verdict of the Bpeclal prowcllonB gUBranwed lD unlll mldJune 1988, Thus, a substanllal Bervlcepenons by the Act. while remBlnlng portion of the lime period during which faithful to the requlrementa of rule 238, It delay damages were accruing under new fulfills the purpas.. of the Aet by prolA!ct. rule 238 was lime after defendsnt's dls. Ing military penonnel from the el.fect of chBrge, All of these facton must be con. rule 238 where they are unable to partlc. Bldered by the trisl court on remand and IpalA! In the case because of their service only the lime during which the delay of the and thl. causeB the delay of the triBI IrIBI of this acllon waB directly caused by Clearly where the defendant Is In the mill: del.endant's military service ahould be ex. IJIry and this preventa his full Involvement eluded from the delay damages calcula. In the conduct of his del.ense, he cannot be lion,' held to the requirement of rule 238 regard. Judgment affinned in \lart and revened Ing the making of an adequate setllement In part, The judgmelll la affirmed as to offer, On the other hand, this slJlndard the compensatory damaKes awarded on the also furthen the purposes of the rule be. verdict of the jury, The judgment Is reo 4. or coune. on remand the nial CQur1 should cnallt In I thorou,h application or ,II or the crUerla Dr new rule 138. Includin. In Inquiry Inlo whether an)' period of del a)' uf tria' WI' CIUKd by plaln'IH. If luch b shown. ,hll rtrl. ad mUlt .1~ ~ deducted from the lime durin, which dtl.y dam'lcI werr Iccruin.- PI.R.C.P. llllb)(l), ~ ~ ~. ~~. ~ I I I I '. " 446 I'a, 686 ATI.ANTIC Rt:PORTt:R. 2d SER":!! veraed In.ofar a. II 01101 nnl Indude any award of delay damage., The ease I. re' manded for a caleulalion of delay damuge. In accordance wilh new rule 2:l8 and Ihl. opinion, . o ,.".....U"\lI.. COMMONWEALTII of P.nn.ylvanla, Appell... ., 81.ph.n SKIBICKI, App.llant, Superior Court or Pennsylvanlu, Submilled Oe\. 2U, IU90, Filed Feb, \6, IU!I\, (lelendanl WBS eonvicled in the Courl of Common Pleu of Erie Counly, Crimlnul Illvlslon, No, 324 of 198U, Jo)'ee, J" or ollompled homicide, aggravat.ed auaull, reckless endangermenl, poueulng inslru, menl or crime, and carrying firearm wllh, oul . IIcen.e, nefendanl appealed, The Superior Courl, No, 121 PlltJlburgh IUUll, Iludock, J" held Ihal: (I) lrialeourt did nol IIbu.e Ils dl.crelion In IImlling cro....,xaml, nBlion of vlcUm concerning hi. cocaine use IInd p.ychlalrle hi. lory; (2) Common' weallh'. reference 10 defendonl'. preorre.1 silence 01101 not vlolnt.e right 10 remain ai, lenl; and (3) admls.lon of lelt.er which de- fendanl had wrlll.n 10 his wife did nol vlolal. stalulory apousal 1"lvllege, A flIrmed, I, Criminal I.aw "'\036,2 Ilefendanl waived ror al'l'ellaw review isaue Ihal lrlal court lmprol,erly preduded vleUm's erou-examlnaUon conrernlng hi. roealne u.e and p.yehlalric hl.\llry whe,., luue waa ml.ed for fl,"1 Ume In 1"1011,,"1 mOllona, 2, Wlln..... "'26811), 328, 344(21 Trial court \"ol,erly Ilmlli'd defen' danl" crou-eumlnaUon of vicUm concern. Ing hi. cocaine uae and p.ychlalrlc hi. lory: Irl.1 eourl ruled Ihal any inrormaUon wllh. in vicUm'. menu.1 heallh recorda which wa. relevalll 10 aetroderen.e dalm could be I"".enli'd al lrlal bul found thai record. 01101 nol eonlaln any .ueh Information, and delendatll was allowed 10 que.tion victim as \ll hi. u.e of eocolne on or near dat.e of shnoUng and his abllily to recall .venls which occurred prior 10 Inclden\. 3, Criminal Law ...1163(4) Scope and manner or crou..,umina. lion of wilneaau lies wllhlll Ilial eourl'. sound diaerellon, and Ihe Sup.rlor Courl wll\ lIul overturll tho.e ruling. abaent ahu.e or dlscrelion or rnl.tJlke or law, 4, Wlln..... ...2691161 When obvious pUll,o.e of cro....,xaml, nOllon I. 10 develol' deren.., Ilial court does not abu.e Ils dlaeretlon when IImlls are placed upon lis .eol,e especially when derendanll. nol ulllmat.el)' I"eduded from ,,,e.enUnll relevanl evidence al .ome olher poinl during eour.e of Irial. 6, Criminal Law "'"71,\121 Every Inappropriat.e remark by prose. cuUon does not neceullali' new trial; neW Irial will only be granled when remork prejudicea jUr)' to .ueh a degree Ihal il l"even\Jl jury froln welllhlng and rendering Irue verdicl, and In making Ihal delermina, lion, Superior Court mu.1 e"Bluale remark. In eOlllexl In which Ihey occurred, 6, Criminal l..aw ...12011) I'ro.eeulor'. reference In .ummaUon Itl \lOlIee .nd polenUa' JlO1Iee inv..UgaUon alld defendanl'a prearre.1 .lIene. was merely an al\Jlek upon credlblllly of defen' dRnl'. vera 1011 of whallr.n.plred prior \ll ahoollng and did nlll violaii' Fifth or Fllur, wl'nlh Amendmen\ll, U,S,C,A, ('.on.l. AnwndB. elt U. 7, Wlln..... pl92 Adml..lon or lelli'r whlrh defendanl had wriUen, while Inearcerali'd, to hla wire IInd whieh referred \ll hi. criminal ease 01101 nul viola Ie .tAlutory .pouul privUege . . . , .11~":' 'f '.UlU' III (.)ulllll _ .:;~UCS usulllly IIIVIII\'!' IIIl' lIl~lIons '.mom IlIlll'lnally the Ijuher) us they ; - IS IIIl' futhel' payjll~ support for : :ithcr malntallled Cllllllll:Is wllh =\In, Is the falher ~ulhy Ilfsume ,=-"(t which hrin~s shame upon the ;" ;hild,"III Itl': I'etllllln llfStllves, ';";,~I, :: ~lOsldemlllln the children's we!. ~lne6 that II would be in their 1\'; their names chan~ed. In their . :".lrlng. holh Mallhew and Brlan ;_~ dcsire to have their names ......nher's record 17-:i3, The court =,' ;Ilnlenllon thai this desire is not ~~r, .1 desire falnicated hy Mr. and _:I:: ~an allow the name change over : :=is that the lilt her's support pay. ~L sporadic or Inlrequent; In Re: -:. ;upra. or when the father's vislta. ~ In ReI Egger. 28 D,&C,3d 361 I " ..:I...I was shown that Mr, Quinn hll4 :3iren six to 10 times within the last ~her's record, page 2, And also ~ :aken to court for contempt for : iUpport, Stenographer's record, :fiJbit no. 3, This court falls to see ::ange wDuld "further alienate" Mr, = meady alienated children, :ONCLUS10N .IIII!!IIentioned reasons. the petition ~:s granted, If! enter the following ~.I.I,IIIW'I 11"'~"'I1H~I'1 \ M.llh"~.. 2,1:\ O/lI>EIt II Is herl!l)\, llI'<ll'll'll. adjlllllll'll alld ell'ITl'ed Ihll' III\! pra)'l!r Ill' p..lilhllll'r~ Is l-\I'allll'd 1I11e1 lhlll IIrlulI QIIIIIIIIIII<I Malllll'\\' QlIllIlIllI'lll'rdllafwl' kllllwllali /ll'lall Dl'wl'es and M.1I111l'1I' IlI!W(,I'S. I'I'Spl!CIIl'l'ly, ffv PlessinKer v. Mllttocks CIIoII/"'I(','<luI"I' - S/UI' oJ"/)"",I',/'''I/.' - """'1/ Iu III//IIU'"- c"," Rd/..! A.,/ -/kf""'" "'"~ 0",",..",111/ IIJJi,../,'<I "" reu,oll ul IIII1i/ury ..'n,j.',. - SIll!! ,1."",.,/ While Ihe Clvilllelil'l" Mini 1!l411, 50 U,S.c, App, 1621. jlrovldes Ihat on)' plUr<,,'dlnl(~ Inl'ull'lnl\ 0 pari)' Inlhe military service shall he hlUYl'd, U pru('e"lIl1llln\"ull'lnll 0 pariI' tn Ihe military service 11'11I1101 h" stu)',,' ulldl'r Ihe IIl'l II'here Ihe abll. II)' of the defendant lu l'undUl'l1I delense ulthe present sIaliC of the proceedings II'llInol he Il1l1terlull)' allecled b)' reasun of mllllary service, Petition lor stay or proceedlnlls, C,I', of Lancaster County. no, 986.84, Craig A, Sl/llIe, lor plalnlllJ'. George C. Werller, lor defendant, PEREZOUS, J '. April 24. I 98S-Before the court Is the pelltlon of delimdant Jeff Mattocks for stay of proceedings under the Civil ReUef Act of 1940, 50 U,S,C, App, S521. This action arises out of an automobile accident In which plaintiff Beth Ann Plessinger was a pas- senger In a car operated by defendant and was in- jured when the vehicle lel\ the roadway and struck a small bridge and marker pole, The pertinent secllon of the act provides: "At any stage thereof any acllon or proceeding In any court In which a person In military service Is In- y ~" , .11111 1\ I' :Id ~N;' 11l1H~.' 111......1111:1.' \' M.llhHt... ~'lf) . .. teli'lIdanl, dnrin~ Ihe Iln IiII days Ihl'rcal'ler , l'lllln in which II Is and shall, 1111 applica. lillI' fll'rMlIllIl1 his be- Ihls al'I, ' , . nnl<'ss, In , ahilily Ill' fllahllllr 10 lelldalllllll'IIlIlIIll'1 his 'Cled hy reaslln Ill' his IPP, ~ ;'21. hal he Is a 1Ill'IIlher of cUITl'nlly slillhllll'd al II1llls, lilllllwln~ which All' Force base. pllssl- Jllited Slales, Ill' as. Icl his dl'li'IIM! III Ihls " reason Ill' his lIlilitary Ihls acllon flursuanllo hal while certain por- \\'i1hllut his preSl'nce, plalnlill' and Ihe medl. I1d such discovery In. of Ihe case lilr Irlal h as dependln~ upon In ol'plalnllll'.11 will be !r wilh delcndanl. per. eposlllol1s, Delendant cedure for scheduling burden since. If the d, iI \\'ould be placed ! certain, Be contends IOlnt the tentallve trial vhere he will be sta. sible to say whelher or ve and. assumlnll Ihal problem develops be- l return to the area be- lilre Irlal WI'I'~ III prl'pal'l! lill Ihl'lrlal \\llhlllll hl'inl.\ certain Ihal Ihl' nHllIl'r wllllld pml'I'I'd IlIlrlal. Whll<' !'ach parly Citl'S authllrity IIII' Ihl' pmposl, tlon thai IIII' hlll'llell III' pl'llol' Is IIlI Ihl' IIlhl'r.' Ihl' United Slall'S SUflrellle Courlln IIl1llnl' v I.i~hlnl'r, :HUlI,S. ;,lil (J!H:l), stall!d that: "Thl' al'l Illakl's nil I'XPWSS pml'Isilln as 10 who mllsl carry Ihe burdl'n 01' shllwlnl\ Ih,lI a party will or Willllllt hI' preJudiced, In pursualll'C 1111 dlluhtllf i1s policy III' maklnll Ihe la\\' f1exihl<' to Illcel Ihe great varlely or situalions no lelllslalllr alld nil court Is wise enllu~h 10 lilresee, We, lOll, refrain I'rolll dl!' c1l11inll any rlllld doclrlne of hurden Ill' pl'lllll' III Ihls mailer. helievinll Ihal courts called uplln to use (Ils- crcllon will usually have enoullh sllullll sense 10 know li'U111 what dlrecllon Iheir Inflll'lllalllln shlluld be expl!l'ted to come," Id" :~ HILI,S, at 5(i!), The COUl'l In Boone alsll slaled that: "The acl cannOI be construed 10 require conllnu- anee 011 mere sho\\'lng Ihallhe delendanl was, , , In the military service, Canons or stalutory conslruc- tlon admonish us thaI we should nlll needlessly ren- der as meanlrlllless the langualle which. al'ler au- thorlllnll stays, says: 'Unless. In Ihe opinion of Ihe court, the abllily or plalnlill' to prusecule Ihe acllon or the delimdant to conduct his delense Is not mate- rially alreeted by reason or his mililary service,' .. Id" 319 U,S, at 565, 'SccCobum v, Cuburn, 412 So. 2d 9HlFla, App, 3d Illsl., 1982), IlIacln" thc burdell on thc panl' Opp051nll thc flO51ponellwnt 01' tnal to show thatthc sen1l'CnUIn'5 ahUlIl' to conduct his dcfcnse 15 not matcrlally "nh.tl'<1 and Norris v, Supcnor Court of JIlohavc County, 481 ", 2d 553 (Arlz, ApI'. IO?I), placlni: II hurden on Ihc parly rcqllestlrli: thc slay to make a showlnll of his aetualunavallabUlIl' alld Ihat his rlghls would he adversely afleetcd hccausc of his ahscnee I'nJlll thc ttial. '.~Ullf.(........,..t....,.'I'~I', . _1..'(11..'.,.,1.....: . ,..,...r '. '.~. . , ., '~'I,""""""~''':t.~f'.(,w..' '. .. fo .... ,'" ~~.~".f 'I'. >t" -.r ,-.:. .~ ",., " ''''~''' .,,0&.' 1I:'l'I iiOOD ..:J.k'oiriIiQl~;JI: W uiIi ! 11ie ~mpany ulan havlnj be~n'dliutl~ ~;j~al'Wroill ~ GIlplo,u wliJcb. &bl WI.: lI~ed, the employel ar. free to. form or dlllc6. and '6lId1np indicate IInlr ... Join any union and make It their buralnlne . InlUeted; and to Inflict draatle' punlllunenl .,ent. . An1 polllbl. IfFec:1 of company,lof the IlIIpl01er for III earller'llolatlOll of Influence haa been dllllpaltd. The ooly 'the IlIlule by encour.,lne III emplo7U IIlI polllble effect of nllllUtlon of .duII to : or,.n,I.., Neither I. within the ClDptttilce I employ I' who have nol a.ked for repa,. of the Boare!, aa thll court hat repealtcllJr ment, who baVI recelvld lubslantlal bene- hlld.a ,'. >, 1,1" . fit., fronlthelr conlrlbutlon of dUll, II to' . > :'''r';',' > ',: ' > . punl.h the employer and perchance operate. -1,Jke onlenhav. been before, the _ria al J wamlne 10 other .mploym Ihat they In, eJevOll oth.r "Jel a. thon by the will Ilmllarly be punl.h.d for unfair Ilbor . opinion of the courl. All ba.. ruched practlc.., the conclusion that the Act doea not author. lae IUch an order,' I think that ahnuld be The Board Jeeh to auslaln the order on Ihe decision of the Court In thl. cue. the (round that the Aet authorbll, a. one fonn of a8irmatlve acllon to efl'eclU.te the The CHIEF JUSTICE .nd Mr. Juttlce policlll of the Act, the relnstatemenl of JACKSON Join In thl. dlllenl. emploYII IMh or without back pay. Th. award of baclc P"Y, however, 'IInd. on a dlflerent ba.II, If emploYII are to be faced with discriminatory dlschlr,e for ad. vocatln, union reprllentatlon by In orcanl. utlon of their choice the threlt will render doublful, If not Impolllble, free and uo un. controlled Ictlon on the plrt of the em. ploy... The Act, therefore, I. an an. nouncemenl tn employ.. Ihlt If they Ir. dlschareed for .uch aCllvlty they mlY hIVe reinstatement and, In proper ..It., back pay, Such a promlle to employea wu emntlal to allure them Immunity for conduct mlde lawful by the Act, But Ihe paymenl of union duel II quite another matter, plrtlcularly where, al here, no employe WII obliged to Join the union, and no discrimination between employel re. 1"lted from Jolnlne or paylne dues to the reeognlled union, It I. Inconcclvable that the hoCe of relmbu..ement of dues paid to the un on In qUlltlon would have any eflect on the conduct of the membe.. to Join or refrain from Jolnlne thll union or Jolnlne anolher II they were free to do, Moreover, the employes were free under Ihe Act 10 adhere to another orcanlution and to brln, about an election for the choice of anolher blrealnlnf, repre.entative, The Board mlde no nqulry and no findlne respecllne coercion of Individual employe., AI I have already Indlclted, the only efleet of the order la to redre.. a lupposed a SOl Not.. . and a, luprl. , J IDI.M .IU hlf' toulthted mrlflt, fa lieu or _nUa't with . reteuDce 10 tb. oplalo. .. WOII... Volo. T.L Co. l)) <(&-~ a.1 17,1. HI BOONE v. LIOHTNER at aL No, "I, Aqued arlY .. .. 1NI. Decided ~UD' T. IlH1, Rebrartna Deoled Oct. 11. 1841. See 820 U,s. -, G4 S,or. llO, II L.EcI. _ I. Army... aavy ...34 The mere Ihowln, Ihat defendlnl wu In Wllhlncton In the mlllllry Ie ",Ice did not render a continuanee mandltory under Soldiers' and SllIors' Civil Relief Act In view of provhlon authorlaln, IIIYI unlell, In opinion of court, defcndant'a ability to conducl defense II not materlllly af. fected by rellon of hi. military aemce. Soldiers' and SllIors' Civil ReUef Act of 19-10, I 201, 50 U,S,C.A,Appendlx, I 521. z. Army... .avy ...34 The 'eeh1ltive blltory of the 1918 Inlecedenl of the Soldien' and Sallon' Civil Relief Acl of 1940 Ihowl that Judl- clll discretion conferred on Irlal court re- cardlne the illY of proceedln.. Inlllld of rleid and undhcrlmlnlllne .uspenslon of civil proceedlnes WII the very heart of the policy of the acl. Soldle..' and SllIon' y, N, 10. n. D. a 01.. 113 r.2d 0112, which ..hau.d"., and ...,lDdJI." d.oII with tho luhl.... ~ .,'., , ..~.. ,!'t'r.~" j" i ,I 'Ii ,.' I , ! I , , I '.Jtt.~l"".:'~'j ',I I . '; '" ~ . . . . 1~.""1 . .tll'~,~~~'l:' ~~TIR '. . 10.: ~ Civil. Relief Acl of 1940, '11 el.leQ'l 50 ,lruIt fUlld, thai depolltlonl of Ia.,..... U,S',C,A.ApreadlX, I 501'.\ 1~:f',SolHn' 'tMlee who ".. Ia mlU\a.., Imlce Ia I" and Sallo'rl, Clvll helld ':A..~l'o.f ;19IB,-' :Waihlncton Ihowed thai he had oodefClllt, ; 2OQO U,S,crA.Appen~' t2,<,,:~ :,11 :..10 accoUlltln, lul~ aDd thll he ~d been ,; . "1'. , ".."., ",I.' ",>lfaDl~d conllnuance 10 procure aecellal}".I' L '''II)' aU uv)''''14 "," ,:' ,.,counlel, JUll16ed reluaal of furlber con.. .' 'l'be ultimate "dllcretlonw yelled 'ft tlnulllce wheD calC waa apln called for ~ Irl.1 court rec.rdlnCllaylnc of proceeding. trial, on cround thai lrullee'l ablllly 10 , IInder Soldlen' Illd Sallon' Civil Relief conduct hll defenle wu Dol "materially., Acl .Includea ',; d1.crelloD u lto 'whom Ihe affecled by rUIDD of hll mllllary aervlce" , coun may uk to come forward wllh facta within Soldlm' aDd Sallora' ClvU Relief . needlullo a fair JudlDlenL Soldlen' and Act. .Soldlm' and S~lIon' avll Relief ' S.Um' Civil Relief ACI of I~O, . 201, 50 Act of 1940, I 201, SO U,S,c.A.Appcadilr, U,S,C.A,Appendlx, . 521. ... 521. lito Wo" aDd Ph...., P.rm....t EdlUo., for aU OlMr debllloDl 0' NDllcnUOQ". 4, "rll)' II' an)' ...14 In determlDlnc propriety of refulallo conllnue actloD aCllnlt defendant In mlli. tal}' aervlce In WuhlDcton, "(ardlm of whelher defendant wal under a duly 10 mike a dl.c1olure of hi. Iltuatlon, once he undenook 10 do 10, the alpl6cance alike of what hla aBidavlt ..Id and of what It omltled WII 10 be JudJcd by ordinal)' tllll, one of which II thai all evidence mUlt be wel(hed a_rdlnc to the proof which II WII In power of one Ilde to have produced and In power of the olher .Ide to have con. lrodlcled, Soldlerl' and Sallon' Civil Re. lie! Act of 1940, . 201, 50 U,S,C.A.A!" pendlx, I 521. a. "rMY II' lavy ...14 The 6ndllll1 of North Carolina trial court, deny InK continuance to defendant who wal In Walhlnelon In the mllltal}' aervlce, Ihat delendlnt wllllully attempled to evade delennlnatlon of Inuel, that de. fendanl WII not aClln( In rood faith, and Ih.1 defendant had had ample time to pro!" ..Iy prepare hll defellle, luBiclently evl. denced opinion of the courl that defend. anl'l de!enle wal not "malerlally afTecled by rellon of hll mllllal}' ICnlce" within Soldlen' and Sallon' Clvll Relief AcL Soldlen' and Sallon' Ovll Relief Act of 19~O, I 201, 50 U,S,c.A,Appendlx, I 521. See \\'orl1l aud Phru-. f,rmaD.nl EdIUoo, lor aU olb" d,ftoltloo. 01 '')I.torl.U, AIleeled h, n.uoo 01 hla MIUlIrl Blnicl", .. "'"'1 and Dlv1 ...14 Evldcnce Including .howlng Ihat prompt action wal Decellary to prulecl 7. Ar.)' a.' IIvr ...14 The Soldlen' aDd SaUorl' avo Relief Act mUlt be liberally COIIIlrued 10 prolect thole who have been obll(cd 10 drop their own affalra to take up the burdelll o. Ihe nation, and dllcretion YUled In lriaI COUrll 10 that end Ie not to be wlthbeld on Dice calculallon. II 10 wbether prejudice may relull from ablence, or abaeDce reault from the aervlce. Soldlen' and Sallon' aril Relief Act 01 15140, I 201, SO U,S.c.A.A!" peDdIx, I 521. . L "rll)' a.' an)' ...14 ID determlnlnr r1Chtlo ala, proceed. InC aealnat defendanl Ia mllltal}' ae"lce, ablence when one'l rlehl' or Ilablllti.. are belnc adJu",ed Ie UlUIlly .prlma facie preJudicial", but ablence ma, be a policy, Inllead o. the mull of mllltal}' aervlce, and dllcretlon Ie vnted ID courll to ICe that Immunltlu 01 Ihe Soldlen' and SaU- ora' Civil Relief ACI are not put to IUch unworthy ule. Soldlera' and SaUora' ClvU Relief Act 01 IlI4O, . ;ml, SO U,S,c.A. Appendix, I 521. B" Wordo nd I'la.... ...........t EdlUo., 'or IU .lb.r tIdolU... 01 .P,lml r.d. PotJodldal". -:t. .: :. '! Mr. JUltlce BLACK d1lHl\tIac. On Writ 01 Certiorari 10 Ihe Supreme Court of the Slale 01 Norlh Carolina. Action by Clarence M, Uehtner and othe.. agllnlt D.nlel F. Boone for an accountlnc of trwt fund. To review a declllon 01 Ihe Supreme Coun 01 Nonh Carolina, 222 N,C. 205, 22 S.E2d 426, which lound no error ill a verdlcl and JUdl' , .8./lE" ""'I", BO(jNJa';!'LIOBTNllB": r' lit V'" '.Ii\ tor' plalnllll'.. ddtndant brine. ter. Ilorul. ' Aflirmtd, Stt also, 221 N,C, ?ll, 19 S,E2d !44J 222 N.c' 421, ZJ S.E.Zd 313, Mr, 'MUlon I, Baldlnctf, of Waahlncton, D, C" for pttlllon.r, M, ,R, McCown, of Tryon. N. c,. for rtapond.nla, Mr, ]ulllce JACKSON delivmd the opinion of the Court, Tht ftderal quullon In thla cue la whtthtr a lIay of proc.edlnca acalnll a 'ddtndant In mllllary Itrvlc. h.. bten rt- fua.d und.r clrcumatanc.. which denied rlchla riven by tll. Soldl.ra' and SaUon' ClvU R.lld Act of 1940. SO U,S,c'A,Ap. p.ndlx. I SOl tt a.q. Tht controvtray In which h. waa .ncaced la for .tat. courta to .mle, and Wt d.al with tht facia only aa thty r.lal. to Ihls led.nl que.tlon, Th. p.lllloner Boone waa .ummoned into a .tale courlln Norlh Carolina in an action to require him 10 account aa truate. of a fund for hla minor daught.r, to rtmov. him II Irulltt, 10 aurcharg. hi. accounta for lou.a cauud by aoa lIIecal mlnaccm.nt, and 10 obtain ptnonal Judgm.nl for deficl.ncy In the fund. Boone'. mOlher.ln-law, by wlJl of which he wa. Utculor and lrult.e. crtaltd a lru.t fund lor Ih. eduCltlon of h.r crand. chUdr.n, IncludlnC one child of Boon..., Shortly alter her d.alh, and in S.plcmb.r, 1938. anolher child waa born 10 him, Slnc. thl. child WII unprovldcd lor In Ih. will th. lalh.r-In.law mad. urangcm.nt. which upon hi. dnlh put Into Boon.'. handa a fund 01 aboul $15,000, It la conc.ded thai Ih. fund wa. a trull lor Ih. benefil 01 Ih. dauChltr, Th.re WII controv.n7 wh.lher it waa cove mod, al Doone claimed, by a leUer algned by th. lalher.ln'law which placed no r.atrlcllon on hi. dilcre- lion i or. II 1.1.., Doon., who h.. bt.n aUllaln.d by Ih. courll of Norlh Carolina, c1almcd. by Ihe um. condltlona aa the 1.llam.ntary trull a.1 up by her moth.r, For our purpos.. II Is .nough thai II wa. admllledly a truat and Ihat crounds w.re allcced .ullicl.nl to move the atal. courl to r.qulr. an accounllnr, 83 B,Or.-nli , "'The 1taIu.oi:. and cOmplalnl were ..,... on Boone penonaUy In Norlh Carolina on ']une ZJ, 11'41, ,He wa. Ih.n In mllllary '..rvice of dl. Unll.d SI.ln a. a Captain 'Iatloned In the ollice of Ih. Und.r Seere. tary 01 War In Wa.hlnglon, ' Doon. filed a verified anlw.r d.nylne Ih, Jurlldlctlon of Ih. court. c1almlne thai on June ZJ, 1941, the ume day Iht .ummon. WII ..rv.d, he chanc.d hi. "domicile and Icgal r..ldcnc." to WaahlnClon. D, c., and hll daughttr'1 II WtU, He admllltd rt- celpl 01 Ihe fund In IrlIJt. autrltd Ihe lrull wal govtrncd by the leUtr rcferrtd to, and pleadtd Ihal ht "il nol bound 10 rtporl 10 any Court," Ht denied all chareea of mi.- conducl of the lund, denied Ihal Ihere were croundl for apprehenllon thai Ihe fundi were unlaft, and alltrttd Ihal "ht hll ex. crclsed al all tlmu good fallh In carinII' lor thll fund." lit also alaltd .11 lliat "bt hll not dlulpaltd one pmny of th. fund, nor hal he mad. any wllhdrawal from Ihe fund .ince th. day Ihe monty WII turn.d ov.r to him." H. pleaded al lenClh fact. to aupport bl. claim that he WII no loncer domiciled in Nonh Carolina and to aupporl hia allteatlon thai Ihe trual WII "a voluntary IrlIJI Dot aubJect 10 the Jurladlcllon of any court or reatricted In any way by the terma of any will," On February 2, 11'42, the caule came on for h.arinr, Doont movtd for a conllnu- anc. 10 Ihe 251h of May, 11'42. bl. counu~ Roy L. D.al, Itallne thai he upected lOOn to be called Into service and would bt unable to try the cau, and IIklnc the continuance In order to rive defendanl ample time to employ olher counuL The requeat waa rranl.d, and that dale peremptor1l7 .et for Ihe trial, The court forbade tranafer 01 a.curlll.. conllllullnr the truat and reo qulred that on the Irial dale they and an7 funds of Ihe lrust bt turned over 10 the Cltrk of the Court 10 abide further orders. Ila order admonished Ihal Ihe court would al Ihe earlleal practical dale IIcertain the alllul 01 the trulI lund and Ihal Ihe pre.. ence of Doone hlmsell IIlhe Irlal "Is hlgb- Iy desirable." but left 10 the diacretion of Doone and his counl.1 whether It wa. n.ce..a.y, In order, however, 10 adrlae de. f.ndanl Doon. and hla .uperlor office,. of Ih. imporlanee 01 Ih. IIllgallon, the court directed that a c.rllfied copy of the order :t_ . BllPQIDI OOtlJlT 'a&l'OBTlCR ..11.& ''''lent to the' Adjutant General 01 the peadlnr, on III on motion, and ,haD, .. ,United Slltca Army at WalhlDeton, :' application to It by luch pmon Dr IlllIla . "Wben'the trill day came' Boone In.oked r,enon on bll behalf, be Itlyed al provided 'Ihe Soldlm' and Sallon' Civil Rellel Act n thll ACI, unlen, In tbe opinion 01 the 011940, and demlnded thlt the trla\ be con. court, tbe ability 01 plllntlff to prolecul. tlnued until afler tbe termlnltlon 01 bll ... aervlce In Ihe Army or unlll "Iuch time al the action or the delendlnt to conduct hll be can properly conduct hll delenle," At delenle II nol mlterlally a<<ected by realon thll time there were belore the trill court 01 hil military lervlce," not only Ibe pleadln!:" Ind the affidavltl lubmltted by Doone and hll counlcl but a\. 10 certain depolltloOl 114 iU2t I, II II J Ir l. 011 t';: ' ~ I . I'll l. '.'1 ,"'i ~:i: .:,1: ...' 11~ ' .;1 . ' ..:, which Boone had mldc and procured and which had been re. turned to the courl, and allo Doone'l own .lllemenl 01 tra..actlonl which Iccom. panled certain lecurltlel and lundl which he turned over to tbe Clerk 01 the Court, Boone WII not present, but eounlel ap. peared lor him to move lor a lurther con. tlnuance under the Soldle..' and SllIon' Civil Rellel Act. Thil motion wal denied, counlel who had presented the motion with. drew Irom the Clle, and the trial proceeded. The verdict 01 the jul')' went a,alnll Boone 1 and judrment wu entered thlt the lrult wu roverned by the terml 01 the will, thlt Boone had been CUllty ollerloul mil. conduct 01 the trult fund, and that be be held penonally liable for the conlequent 1011 to the trultlund 01 more than $11,000, Ind removed al trultee, Doone thcn appealed to the Supreme COllrt 01 North Carollnl, on the merltl al \Yell lion denial of the contlnuan.e, and Ihat court affirmed. 222 N,C, 205, 22 S,E, 2d 426, AI the declllon below prelented an Important quesllon 01 conltructlon 01 the Acl, we rrantcd certiorari, The lectlon 01 the Soldlen' Ind SllIon' Civil Rcliel Act 011940 prlnclPllly Invoked i. I 201,1 which rcadll .. At any II are thereollny action or pro- ceeding In any court In which a penon In mllllary lervi.. I. Involved, either al plain. Ilrr or delendant during the period 01 lueh lervlce or within Ilxly da)'. Ihercaller may, In Ihe dllcrellon ollhe cOllrtln which It II 1M BII" 1\78, 1\81, 00 U,8,O,Apll, I G~t, 00 U,S,O,A, Ap(ltndl., I G2t. We IIllre.. no o(1inlon on the quutloD whetber Uoona coult! linn tbe JUlJllnent Ulll'llC!tl Ullun IlfOIIt'f GPllllrnllon ullllrf t 200(.). GO U,S,O,AIIP, I G~'O(.), GO U. H,C,A. A\lllOlIdl., I G~O(.). ", -.., The pOlltlon. ur,ed by petitioner come to thOle: fint, thlt delendanl'l military lerY. Ice In Walhlneton rendered a continuance mandalOI')' 1 lecond, If not mlndatory, that the burdeo of Ihowln, that he could attend or would oot .. prejudlccd by hll a"ence wu not 00 him, but on thOle who would force the proceedln,. i third, that the Court did not make the findlqr required by the Act lor denial 01 a IllY i and lilt, that In an) view 01 the law the trial judre abuled hll dlleretlon In thll cue. Tbe petltloa ral... other queatlon., lncludln, the COlI. IIltutlona! one II to whetber be hu beat denied due proce.. 01 law, which we do Dot dl.culI becaule In the IIrht 01 the facti 01 the ca.e tbey are IrlvolouL [II I, The Act cannot be conltrued to requ[re conllnuance on mere .howln, that the delendlnt wu In Wllhlnrton In the military lervlce, Canonl olllalutory con. Ilructlon admonl.h UI that we Ihould Dot needlellly render u meanln,le.. the laD. ,ul,e whleb, alter authorblnr ItIYI, OYI "un Ie.., In the opinion of tbe court, the ability of plllntlff to pro.ccule the action or the defendant to conduct hll defen.e II Dot materially affected by rtalOO of hi. military .erYlce." [2] The Act 01 1940 wa. a lublllntlll re.enlClment 01 lhat 01 1918, SO U,S,C.A, Appendix, I 101 et .eq, Tbe le,illatlve hl.lory 01 Itl .nteeedent Ihowl thai thl. claule WII dellbe..tely choltn and that judlclll dllcrellon thereby conlerred on tb. trill courl inllead 01 rlrld Ind undl.crbo. Inating .u.pcnllon of civil proceedln,l wal the very he.rt 01 the poUcy 01 the Act,l . A. orlllnall,. prollOllt'II. tbe Boldi.,.' Ind Sall.n' CI,II UeU,I 11I11, S, 2850, ~tb 000"1 Jat 81'11" pro,"lded lA I CI thalt "At In, Itlle lbnrof Inl ICtJOD or (lrol'lIcdln, t'OnllDcurl!d In an, court 1"luII . peflu La willi'" I.,d<< ml" 13 8,CL :1 , "BOOn ...ltlIClllTtf&IFJ" :,' lIlT III v...' While thl. Goutt' ',Co; on the lubJect, the Act wu cenerally con. H' f I,' .. had no occ..lon to .peak L ~ ~ \ S G ~ --( ~ ~ o ( lu \hI dl....tloa of tho ... ..un In wblcll It II pendln.. OD In owa moll on, and oboll, on OI'pU.otlDo 10 It b, ou.b por. laD or 10m. penOD on hi, blhaJr, be 111,.d II pro,lded In 'hi. let, aDI,.., .. lb. opl.lo. ollbo courl. lb. del.ndl.ll. not embarrlll.d b, ".'OD of hi. mWtar, ..nice," AecompID,la. lINottl AI to the Pro,l. alDOl of tb. DIU'! Italrd ,bat. "lweepID, ...mptlon" IUch u that pro,lded hI mOlt Slltn In ClrU Wlr dl)'l, Wit "too braid, for tber. .r. mia, clln wber. th, aUla- cl.llblUl, 01 ..Idl". ond IIUore 10 0111. oblla.tloal In lome WI' I. Dot mlterlaU, tml1llrrd hr their ,ntrant'I Into urYle.." Unr!n,. lad .hmorud. beton SeDal1 Judlollt' Commlll.. o. 8, 2SIIO Ind u,n, 6301, O:itb eoor" hllnd 2d S...,. p, 27, IoI.jor Jobn U, Wlrmore, onl 01 \hI drollero 01 \hI bUI, .t.t.d II lb. S.n.11 laearln", lblt II. ualfelllt It I, 1111nl' loldlor. it wutdw, becauII hundred. of them Ire mel:l of Irr.l,. aod lDeD of I.. Itl', Dad the, blVe Ileal. back ber. 100klDr olter .b<lr IWol.., There I. DO earthb re,lon wh, the court prOftedlul' obould 010' or.lnll th.m, 1.1. lb. .m.U mID, or porbep. Ilbould .., lbe hnmbl. IDln, who bll jUlt hlml,1t Ind DO IleDt lad ao Guuld. ...t., thlt .. do Dot wlnt to forlet. U. I. the mln we a,. thlaklnl of. Tblle other people cln take ear. of themlelvn, Ind the eourt would II' to them, 'No ~ Jour all'.lr I. a 1010' coacern; 10 Ihlld with the l....ult, You hili . llwler, 'au bl" In .,eot, JOU ba" . corporltloD mlnl,er, .bd otber thln.I.' tI Id. at p. 97. AI rtflortd li, the Doulie Judldar1 Commltt.., If, n, 6.101. O:itb eonr" 101 8ell., pro\'lded to I 2011 ''Th.t It In, 1'1'0 thereof In, Ictlon or proceed!nl commenced in an, court a,llnlt a penon In mUIt", .er,lee dur. Inl thl p.rlod of luch unle. or within 00 dl" therelfter Dll', In tb. dllere- Il0D of the court In whlcb It I. pendln" 011 U. owa motion. and .hIU, on IPIIUl'I- lion to It hi luch peraon or lame per- .on on hll behalf, bt .tl,ed II llro\'hlt'd In .bll .etl unl"., ID the opinion of tL. coml, tho ablllt)' of tbe defcndant to com. flb wllb the Jud.monl or ordcr 101l,;1lt I, Dot mntrrlnUy affect cd b, realon of hi, mllltnry I"nlce." '1'he 1I1lllUl neporl on tllll bill, No. HU. (1.'\111 ClllIg., ht Be..., Itat('dl "JUIU'IUJ of a r1ald IUIllenllon of ,u letlobl "Dlblt I .oldler, a rt'ltrlclloll up. a. lolto II p....d 001, wbul . ..nrl Ie ooU.fted Ibll Ibl Ib..... 01 Ibl d.le.d. DOIID O1lU.." 0.,,1.. be. mll.rill1, 101' p.lred bll IbUlI, I. mee. lbel plrtl<DIDr '.bU,ltlon, 101011 01 till o<tlono .ourbl IG bl broulbl 01010.1 loldl... wlU be 'or ....U omou... I.d will tIlue .., be t. II.... ODurl wbul Ibl jDd'I, If be dooo .01 oJ. "ad, kaow, will be In . 'nor.bl. pOll. tIo. 10 Inrn whelber or .01 Ibl del..d. 001 wbo ..eh lbe b...el 01 Ibo Illtn" bl. rllll1 b... prejudl.ed b, blo 011111." o.nl.., Thourb .01 tD mill.." ..". I.., b. ml' bu. prop.n, lrom wblcll tb. lDcomt coatluu.. to eame In I,,"pee- Ufo" at hll pre.lactl p.,bap. be ml, b. .oroe a,'.,.da.wln .ba oab' Iteb to bldl .nder tlil bro,," 01 blo .be.li · · .', (p. 2,) "'l'bl Imon 01 Ibl 110' ..... 01 Ibl Clfll W., I...b.. lbel DO orbllror, ond ri,td prol.dloo .,.ID'. oulll II .. mn.b o 011...... .I.d.... 10 tIl. .oIdlu II II II Ul1DICUI",. A tolal lalfllalloa for Ibe p.rlod ollh. wor 01111 rilbl. "11.11 . .oldler ddllll h, OWl purpo... ID time at ..., rredlt t. at tteD more 1m. porlanre than in tlm. of peaee, and U there wert a 10t,1 prohlbllloD UJlOD .n. fordor obUr.tlo.. .'010.1 on. ID 0111I. tlr, lenlr., tb. rrtdit of . 101dlu and bl. 1001117 would bo ntlerl, 001 0'. No onl ..uld be lonnd wbo would lat..d th.m ...dll, .IBlIt la an, tfIlII . rlRid .11' of an Il"- 1l0D. orll..1 lbe ooldler Ie 100 bro.d, The" Ire mln, mea DOW In tbl Arm, wbo ... ..d .hould PI, Ib.lr obUlltlo.. lu fuU, "On the olher blad there are 11rllll, teD' at IboulAnd. ot mea la mllll." Im'l.. ..ho wlU bo Dtlerl, rulo.d Ind th.lr 10mlD.. m.dl d..lllnll If .redllo.. Ire IUowC'd unrntrltledl, 10 pu.h tbrlr claim.; lad "t Ibe.. 11m. 101dlert, It liveD tlm. Ind oJlportnnll, rln, ID mo.t Collet. meet their obll'ltlon. dollar for doUer, Thl couolr, I. IIklnr 2,000,000 of It. 'OUD, Mfa to rllk thC'lr llYn Indl II ne.d be, to rho lip Ihelr U..O lor tbelr countr,. Dotore lODe uen Inore .'11I be albd 10 make the 'Dme lI('rllre. It It more IIlnn na"rd JUltlre to ,I" 10 Ibl .a,lnu of t"t'ln lI"n. men 11Irh JUlt men5lltr of IlIul('rtlnn a. I. pOlllble'" (pJI. :!.:I,) "HI'cHuu 201 lII11llntt'l how the com. mllh'lI 1111 ,,'oilled In a rbltrar)', . ri,ld hili, '1'110 clalllo 'unh'lI, In the olllnloD of tbe court, Ibl Iblllt)' of lbt d.hodaut - ~ltI8' .. BUP~.~u.=.~:IlBPOIlTU ;;, Itrued collllltmUy wllh thll pollcy.' preludlcec!, Iu punulnce nO doubt of III Reenacled aplnlllhll bacl<cround with. pol cy of makllll the law flexible 10 meei' out reconslderallon of Ihe qUlltlon beyond the Ireat varlelY. of Iltuatlonl no 1II'IIlator a Ilalemenlln Ihe Stnalt Committee R.port and no court II wilt enou&h 10 for...., Ihal "Th.r. art adequale aaf.l\lardl In. We, too, refrlln from d.clarllll any rlrid corporll.d In Ih. bill 10 prev.nt any ptr. dOClrln. of burd.n of proof In thll maU.r, Ion from taklnl undue Idvlntal." of Itl bell.vlnl I~al courll call.d upon 10 u.. dll' provlslonl,' w. ar. unabl. to Il'Ilor. or cr.tlon w,lI wually have enoulh lound II. rill.. Ih. d.ult which plainly veltl Judl. .tnl. I~ know from wh.t dlr.ctlon Ihelr Iu. d.1 dllcr.tlon In tht Irlal courl. forma lion Ihould b. ."p.cI.d 10 come. On. cal. m.y lum on an IlIu. of f.ct u 10 wbich [3] 2. Th. Act mak.. no ."pr... pro- the parly II an Important wlln'" whtr. It viii on .1 10 who mUlt carry Ih. burd.n of only .ppt.n th.1 h.llln Itrvlc. .i . remote Ihowlnl Ih.1 . p.rty will or will nol b. pl.c. or .t . pl.c. unknown. Th. next i' t:. " ,h \:' , . . " I' : '.'1 , I ! to compl, wltII tII. lad,....1 .r .rdor .....bl. II D.I ...lorlol1, ...ot.d h1 .... laD of lat. mWltrl .enlee,' II the kI, to tIl. wb.l. ocb.... of tII. bID. Tld. m... f.et .f btlD, III mWter, ""1.. I. D.t laoulh1 mWln, lunee mUlt b, the "HOD for lb, d,f,ndaut Dot m"ttq hlI .bU,.U.u," (p, D,) CoDlrtl.ruan Webb, ObalrmlD of the Hou.. Judlcla" Commlttlt, ltated aD tb, 800r of the UOUII, with ,,'ueuee to lh1l bW, tII.U .0. IIl1eretofore durlnl win tb. nrluUl BI.I.. b... a.d.rt.tk.a to p.. the prl. yate Itl, law. for the b,nlftt of th, 101- dler. ..bu .r. lD the IIntt't 0' tbelr ('OlIol". If roo wU1 read the nrloul 10.. .f thl. klDd ...blcb tb. c.m..ltt.. lau let out lu ita report, JOU wW .e. wblt coolrlfl,t, of IUch laWI b". beeD p.ned duriD, reetnt ,elfe Ind durin, lbe ..rlou. win. Tb. Deat tnltnlal dif- ference blt.tla tltl, law Ind lb, "Irl- .a. Bill. II.. II thl., aod III thl. I tblak 'OU wIU Bod tho chlol IIc.U.a.. .f lb. bill wblcb .... propo"" In.tud of lb. blU WI .r. nOW ron,htem. beln. .rbl- har't 10,llItJe. lDftulble, tbl dllcretloa II to dflUn. out "eD.blud,d jUltJce bet.'uD the creditor Ind tbe .aldler, lak- In. Into eon,ldu,tloD tb. faet tbat tb. loldler bll bfen clUed to bl, countr,'. CIUIe, re,t. tar,. I" Ind 10 ,om. canl entlrel,. In tb. bruI. of thl jud,e who trlea the ealL "MantttltJ,. U thl, COblren .bould uudertake to PUI In .rbltnr, IU, law pro,hllol tbltt DO creditor Ibould ner IUI or brinl proceedln" &I,lolt In, loldler .bU. 10 tLe lIIU1tar, 'Iulc. of hit coun- tr" that would Ullltt bUlto.., nr, larl" b ln man, partt of tbe couot", In tbe nut pllee. It would L. unfair to the cred- Itor .. ..ell .1 10 tbe .ntdIH. 11 .'ould dill arb lb, ,uldler'a credit I1robalJ11 la maUf clle. IDcI would dfOl tb. rl.bt of lb. credllor I. bl. lul d.b.. ft.m . PO" .oa wbo wu ...p\1 .bI. I. PI1 aod wbo.. mWtlt, IIrri.. did D.11n tho 1...1 lmpalr bl. .bWI,I. ..ltl tII. .bUr.Uoa," lItI coo"n... 7781, 0. tb. e..r .f tb. B,,,", t 201 ... amend.d to lub.tltute for "thl IbWt, of tho dol..d.DI I. co..pl, wltII tho Iud,. Inent or order," 11th. .bWt, of u.. de- 'endlnt to conduct bla 4"lnll," aDd to IIt'Dd It. pr.t.etlo. t. pl.lalll. u ".U al to dtfendlnll. DO Conl.Rte. 1600. 17ll3.17M, Tb. .....dm.... WIre llreed to In ronfut'Dt'I, ..ttb tb. DlUIIUI .tat- ID, witb roop..t 10 tho fonu.r lID'Dd. ment that .IAI lb. bW pantd t.bI DoulI roUe! "11 .. b. alrea tIl. pert, III ..W. ler, 11,,1.. unl... blo ablUt, I. ..mpl, with lb, Judrm.nt or order ,oulbt wU Dot ...I.rloI1, d.eted b, lOch I.moo, Th. ItDudtD.at lire'" aD 1011111 t.. ...t d.p..d DpO. bI. abWI1 to CODduct tII. ... fen....' M CoDI,Ree. 8023. AI 10 .m'Dded. tho BW btcom. t 1101 .f tho 1918 Act, .0 B"L 442. "blch .11 .... .I.d 1.10 11101 .1 lb. INO Acl witlloDI am.ndmtnt of tb. prorialoa UDder eta- .ld".Uo., "'bU. It II Ira. tIl.t tII. dl.ru..loa III f.rtll In lb. prtctdJ.. "a,a,'lllhl reJated to . .ta, 00 I 4lIu- Int bull t.haa tb. oal eaaet.d. lit '0 far II It d.al. witll tho qallUo. .b.tb" . lDandator, or I dllCrcllootr, .tl, ... ID- I..dod It II aot mad. InoppUcobl. .r ... tnltructJ" b, the Imeadmlat. . Unl.. I: Vari" .. llatl"loa. 1ST Ark, 184, 208 B,W. D021 BI.t. II rot Clerk ., KI..., :!OI Mo,AI'P, '08, 212 B, W, DIll B..ldmkl " .I.od..boalb, D, 0" .d F,But,p, 0871 Id. D,C" d~ .',Bapp, 700, I~.I.., T"ul"~ 184 App,L'J., '4lI, no N,I',B, IOSI OUlal,., U....klD.. 108 WOIb,70, 182 I', WI, . Bra, IlopL No, 21OU, 70th CoD'. " Bell.. p, 2. ~ " iii.o it~i' h,~:11 nomh lerwlt the h ..&r' war, mUlt, DO In texll .bu lade Coni 4lIcr crttl, llie. f.cll In had WII dOll 611, lei I and l.ct [~ the vert mil; def, JltI, dice m.e pel dtp pen .lIi, ht fell do 10 alii be II we WI dll to ~ 20 C' TJ 10 tt, d , , l :; I \ 1 I I 'j ! I , I I I I , t\ I ! I , I I I I i ! j t.n.OL :'Tr..BOOP!llali~~lJ'l'NER'1 ,I ~J28 1U1',lnvoln,~ aCcldont caulod by ono 01 lupportlnr lactl within hla mowlodie and hlJ,famlly ullnrhle car with hll porml..lon, not within thai ' ''';,.. w~lchh, did notrwlbl.... and u to 'which"" an hi'll 'ully coveroclll1laluranc.. Such. a 01 hll adnnary, TbalII nomlnll dolondlnt'i ablonce 10 military nol a rullnr, on burdon 01 proof, Flodlnr lorvl.eo In Walblncton mlrht be urrod by that tho ~urtl bolow havo procoedocl upon tho lnlurance Company, tho roal dolondant, no ml,"pprehenllon of Iho law, we lum to II Iround for dolerrlnr trill until a1tor Ihe tholr doallnr with the facta 01 the partlcu- war. To IIY Ihat the mOfe flct of a partya lar cal.., ,.. military 1t"lce hll tho ..me Ilmlficance on bunlen of penaulon aro , In tho two con- lull would be 10 put Into tho Act throurh a burdon of proof thoory tho rl,ldlty and IlcIc 01 dl.crlmlnatlnl application which Conrro.. IDIlIht to remavo by maklnrltaYI dlacrotlonlry, We think tho ahlmlte dll- crotian lncludea a dllcretlon al to whom the court may Ilk to como forwlrd with facll noedfullo a fair judrmont, In Iho praent cale, whoovOf mlrhl hive hid tho burdon origlnlUy. tho continulnce WII finally donlod upon a rocord which dll' cloud Ihe flCll 10 far II elthor parly aaw fil 10 do 10, Tho ddondlnl Ind hll coun- 101 lubmlnod affidavit. Ind Iho dopo.ltlonl and accounll bolore thc court rovcltod faell rolovlnt 10 Ihe I..uo. [4J Whothor, II Ihe court know only Ihe exlllonce of thlt compllcltod contro- veny and Ihll Ihe dolendant WII ab.onl In military lervlce, It could have Cllt upon Ih. ddendant the burden of Ihawlng Ihlt the IItlpllon could not 10 ahe.d without preJu- dice to him, It not boloro u., The courl mlde no luch ruling, The dolondlnl ap- pearod, ho pludod hll dolen.e, he took dopo.ltionl Ihawlnl fully whal hid hip- pened to Ihe fund. and he luppllod hll awn Iffidavlt Ihowlng where he WII and whit he WII doing, Relardle.. of wholhor do- fendant WII under I duty to mike I dl.- cla.ure of hi. .lluatlon, once ho undorlaak to do .0. Iho Ilmlficanco IlIke 01 whit hll Iffidavlt aald and of whlllt omlttod WII to 100 judged by ordinary teatl, One of Iho.e I. Ihlt "all ovidonco 0 0 0 I. to bo welghod Iccording 10 tho proal which It w.. In Ihe powor 01 one .Ido to hlvo pro- duced and In the power 01 Iho olhor .Ido 10 havo conlradiclod." Caopor v, Duher, 290 V,S, 106, 109, 54 S,Ct. 6, 7, 78 I.Ed, 203, The Irlll court Bnd tho Supreme Court 01 North CBrollnB did JUSI Ihls, They did not deny his SIIY Ioecau.e he fBiled 10 moetthelr Ide.. 01 Iourden: Ihey wclghed Ihe evidence he ofTerod and fnuud its con. clu.lon. dl.erodited by Itl Bvoldance 01 (5) 3, Some queallon la ..llocI .. 10 whothor Iho findlnrl of tho trial court moet the requlremontl of the Act. In the onlor donyllll the contlnulDce It found u a fact thll "the .ddondanl In \hll cauto II de- liberately and wlllully anempllnr to e..do an ultlmlte dotermlnatlon of tho luau 10- volvod In tho lltlptian entitled .. abo.o. and II uerdllnr hll ..Iumod rllhl under Iho Aet rdorred to lbove to avoh! luch dotermlnlUon," It alao found Iho defend- Int "I. not upon tho mallan for contlnuaneo Icting In loocI faith," In the final judg- mont Iho court found u a fact "\hal tho ddondanl hal hid amplo limo and oppor- tunity 10 proporly proparo hll dolonle 10 Ihlt ca.e Bnd that hi. mllitBry le"lce h.. nol pro vented him from dolnr Ihll," II found thai "dolondlnt hid full opportunity to preplro Ind put In hit dolen.o If he hid one," Ind that "II It applrenl that he hll only .nughl 10 au the provlllont of the Soldlera' and Sallou' Civil Rolld Act II B Ihlold for hi. wrong doing, and Ihll Court, who onee wore a V, S, uniform with pride dael not Intend for thll 10 be done," 01 couue thll I. nal I findlnr In the ward. of Iho Itatute thll tho Iblllty of tho dolondBnt "to conduct hi. dolen.e II nol mlterilUy atrocted by rellan of hi. military lervlce". bul there I. no doubt thlt It WI' Intendod 10 be In .ub.llnee Iho equivalenl, It WII 10 trealod by Ihe Supreme Court 01 Norlh Carolina Ind to IOnd the cale back lor lurther findingl loom. unwlrranted, Tho Ael doea not upro..ly roqulro finding., It I. one Intended to Bpply to court I nol 01 record II well II tho.e 01 record, Ind It requlr.. only thaI tho court be 01 opinion IhB' ability 10 dol.nd It not mBI.rlIUy ai- foel.d by military .<rvleo, We .,. Iccopl th. finding. II lufficienlly evidencing tho opin- Ion ollhe courl to thll orr.ct, [6] 4, The final qUelllon i. whother the evldelle. .ufficlenlly ,u(lporlllho opinion or whelher Ih. order con'lilul.. In IbUle 01 dllCrelion. . , , I .-.. 1130 83 BUl'iiiiuE cObRT RErORTll:R , ", "'11,1. We, lblnk the opinion of Ih. court th.t m.d. It '10, any .ffort' 10 obtain' oth.r' Boon.. mlllt.ry .ervlce did not' 'prev.nt coun..1 In the lonr Int.rv.1 allo..d II)' lb.' him from b.lnr pr...nl .nd doing ",h. I. court for Ih. purpo.., '!'hI. coun..1 "'II .ver could hav. b..n don. by w.y of d.. alao .I.tlon.d al Wllhlnglon .nd ..Id he' ~en.. find. ample .upparlln thc evld.nc., "would nol ...um. to a.k for lcav. al Ih.. oon. h.d b..D abl. 10 I.t aw.y from pr...nt tlm., '0 .oon aft.r havln( report.d WI.hlnrton 10 CD 10 N.w York for Ih. for duty" , , I.kln( of depo.ltlon. on Iwo ..par. I. DC". . , .Ion., H. h.d lonc nOllc. of the Iri.1 dal' On the Irl.1 dat. del.nd.nl .11 nev.r. .nd Ih. court had pl.c.d In lb. fil.. of hi. \11.1... r.pr...nt.d In courl by local D.p.rlm.nt It. order .howlnr the d.. COUnlc). Th.t coun." however Wit con. .Irablllty of hi. p....nc. .1 Ih.t tlm.. .ult.d only Ihr.. or four day. be'or. th. Boon., belnr . I.wy.r and preaum.bly Irl.1 dal. and _. .mploy.d for lb. .01. knowlnr the (rlVlty of lb. accu..tlon. purpo.. of lII.klnl Ih. mollon for .on.' aralnll him, mlrhl b. exp.ct.d 10 m.k. tlnuanc., and ",h.n lb. court rul.d on It 10m. move 10 ('llav. 10 b. pr...nL If It h. wlthdr.w .nd d.clln.d 10 prr,c..d fur. w.re d.nl.d, h. mlrht b. .xp.cl.d 10 ex. lber, Th. def.ndanl'. .ecount. pr...nl.d po.. ev.ry circum.tanc. of hi. .fforllo Ih. 10 Ih. Iri.1 lucle. .how.d disbu...m.nt. court in hi. pica for contlnu.nc., Boon.'. .Inc. Ih. b.g nnlnr of Ih. .ctlon .nd b.. .ffid.vlt, .ft.r r.citing Ih.1 h. Wit ...Ign.d for. trl.1 for Ih. followlnr m.il..., among 10 lb. Int.rnallon.1 Dlvl.lon, H..dquarte.., olh..., in conn.ctlon with Ihl. ....: On S.rvlc.. of Supply, Withington, 0, c., Augu.t IS, 1941, del.ndant'. d.po.hlon w.. IIY' "Th. work in ..Id Division is v.ry tak.n al Wllhinrton, 0, C. Thl. .n. h.avy, and full tlm. .nd .om. ,xlra 11m. lall.d a reporl.r'. f.. of $66,00 .nd a fe. arc r.qulr.d of .n ollic." In Illd Dlvi.lon, of $248,88 paid a D.lrolt auorn.y for Including Ih. delcndant, Prior 10 Ih. app.arlnr.t th. proceedln(, On Novem. d.da"tlon of War on D.c, 8, 1941 th. ber J .nd 5, 1941, d.po.ition. wer'lak.n in work In Ihl. Dlvl.ion WII very hcavy, but N.w York City with Ih. def.ndanl pr...nt. Jinc. Ih. d.clarallon of W.r Ih. volum. 0' Th... involv.d a court reporter'. fee 0' work hll been &Teally Increll.d, No $3225, .nd ,... In Ih. .mount of $375,00 I.av.. wh.lever h.v. been (ranl.d, .xc.pt a" In cam 0' ..rlou. .m.rg.ncy," f.r th. D.trolt aUorn.y .nd N.w York Moll 1.W)'er. Iraln.d In Ih. .quity coun..1 oblaln.d 10 alll.1 him, Thl. It.m Iraditlon of Irullce 6d.lily would regard carrl.d a nOlalion th.1 It did not "Includ. a Irlal of Ihl. kind It a ..rlou. .merg.ncy ..~vlc.. render.d in Ih. laklnr 0' d.p. Old h. apply 'or. Ic.v. .1 aliI Th~ o'lllon. In olh.r cu.. on ..m. d...," .ffidavlt prelly d.arly Impll.d thaI h. had From Augull 4, 1941, 10 J.nuary 26, 1942, not W'lhlnk th. courl had .mpl. ground. D.al, Ih. .ttorn.y who hid repr...ntcd 'or th. opinion th.1 Boon. def.ndanl be/ore wlthdrawln( to .cc.pt . ara commllllon in Wuhlngton, rec.lv.d ~18.. iliad. no .ffort 00 for hi. ..rvlc.. In rcp....nling def.nd. 10 att.nd 10 dUll.. Ihal .hould w.lgh .nl In Ih. ...., Two day. dler judg. h.avlly upon Ih. honor of a 'awyer.tru'I", m.nt, .nolher lawyer from th. 6rm of Ther. w.. Iikewl.. support for Ih. opln. cOlln..1 who h.d withdrawn afler m.klng Ion that Ih. failure 10 b, repre..nl'd by th, mollon 0' M.y 25 appear.d and mov.d counlC' did nol r..ull from Boon.'. mil. 10 "I lh. verdlcl ..Id. .nd took an .ppeal, Ilary ICrvle.. On ".hruary 2, 1942, Ih. laler 611ng exl.n.lv. a..lgom.nt. 0' error. cOll,t grant.d hi. requut for. conllnnanc. Cou,,,,' who had withdrawn /rom th. tri.1 And ,cllh. case 'or trial on May 25, 1942, argucd Ih. apl'calln Ih. Supreme u,url of It was lIal.d 10 th. cOU,1 Ihat counlCllh.n Norlh Carolina, a"ing '0' him WII "I',cllng to b, call.d illlll1l'tlialcl)' into military sCfvice, and It wuuIU be necessary for defendant to pro- rllfe additional counsel. Ne\'trthdcn when the trial date arrived, the fact Ihnt this cO\lt1lcl had gone into nfvice on Mil)' 1.1, 1942, was urgfd 81 a rc:uon lor rurthu IlOll11lollclncnt. No showinJ; whalenf WilS " , " wi " wI ;/ an \., Inl :i' fu b3 .. I .co ca fo fo C pr ! d,' sp I'C r<' Ih ... d, II' AI all Ilmet .ince Ih. action h.gan d.. fcndam h.. al.o b.en re,,,..cnl.d by cOOl".1 'rom D.trolt, Michigan, IIi. In. nbilily to Blllll.'ar on the trial tJate was ex. IllainccJ on the grouncJ that he WAI "def. initely rlle.l!:I'11 nt the prcsent lime in the lrial u( Cilh'. at J)('lrlJit which will reqUIre 1111 l'II'sellcc in Cuurt there: lur 1llllroxJ. Irk em 'i ,de ./ 'P- I .." 42, I, ed a 8,- ;1 ,d- J I 1,- of " , 111 .II eel aI, If. .~ ial of t ,e ,e j. 13 B,CL ,I .BOONlh, LJQllTNII:a ., ':1. ,.. V.I. maldy thlrly daya,. No affidavit from thl. coun..1 W&I produc.d, and no explana- lion I. mad. &I to how lt cam. Ihat olher "ca..." wcr. gl..n priority o..r Ihl. In .Iew a. Ihe long nollc. a. Ih. Irlal clat. and III Imporlanc. 10 tho cll.nl, ' 'n Ihl. Courl, Boon. Ia r.pment.d by hi. Oelrolt coun..1 and by Deal. lh. lawyer who wlthdr.w 'rom Ih. ca.. to accepl a commlnlon In Wllhlngton, B..lde. th.... Ih"c al.o appear four other lawy.n, non. of whom arc Included In Ih. fi.. who ha.. repr..enled him al pr..lou. .ta,.. In Ih. elle. In addition 10 Ih. 'aclI pr...nted 10 Ih. trial courl which w. ha.e r.clted, Ihe Irlal court apparently con. Ide red matten nol a. record In Ihl. ca.., but a. which h. took judicial nollc.. H. r.clt.. lhal "lh. mollon 10 contlnu. It mad. aller th. del.ndanl" refu.alln on. Dr more In'lanc.. arl.lng oul D' IIllgatlon r..pectlng Ih. ara .ubJecl matt.r and p.nonn.1 invol.ed In Ihl. acllon 10 app.ar In tho Courll of North Carolln., o..n on citation for contempl." Wo know nOlhln, a. Ih..o n.nl. and dlaregard Ihl. glound a. tho court'. action, Tho courl W&l dulin, nol only with an indi.ldual bul with a Iru.I... on. charg.d with def.ult In hi. duly, and with a 'und which wa. .ald to be In Jeopardy, Def.nd- anlln .plt. a. hi. mllllary .cr.lc. In Wa.h. inClon WII contlnuln, 10 admlnl.tcr Iho fund, Th. del.ndanl WII a member a. Ih. bor, and Iho char,.. .Iruck al hi. honor at weU II al hi. Judgmenl. Inllcad of ..eking Ih. finl compelenl 'orum and lh. "arlle.l pOllibl. day 10 lay hi. aCCounll oul for .Indlcallon, h. .oughl to e"ap. Ih. forum and po.lpon. Ih. d.y, II. wa. both pr..enl and repr..enlod by coun.el when depo.ltion. w"e lak.n whlch e.tabli.h hi. .peculalion with Ih. tru'l 'und. in hi. "e"onal margin accounl, W. Ihink tho record amply lupporl. th. conclusion o. the lrial Judg. Ihal Ih. cI.lm Ih.1 1IIIIllary .ervlce wOllld p,.Judlc. Ih. cOllllllCI of hi. dcfcllIe, wns crnulIlllus, and that the alJ. .cne. of hlm.df ami nil of hi. nllmcrOll1 and not ullcompelllated cOIII15cl on the day 1 'Johl! C'I:lllle rur "'hlC'b tbe emit. f:1\'l'1 the It'el.latlnt IIIIII0f)' II II 'ollnwa: Au Iclloll DI.ln.' a IICUOU In hlllllat)' 'I'n- Ice .baU b, l'I)'cd, "11U1l ''''IUrI;l, "ulll.'II, in tho ulIwJOI of tb. l'uurt. IL. 0lJlll1l of Judrm.nl.... dict.l.d ""aU' b, 1111- rlou, .tral.".. . , , [7, II Th. Soldlora' and S.Uon' a.i1 R.llef Act It alway. 10 b. IIb.raUy con. .Iru.d 10 prol.ct tho.. who ha.. be.n obllg.d 10 drop Ih.lr own affaln 10 \ale. up Ih. burden. a. tho nallon. Th. dl.. cr.llon thall, ...l.d In lrial courta 10 Ihal .nd I, nol 10 be wlthh.ld on nlc. calcula. tlon. at 10 wh.lh.r pr.Judlc. may ...ult from ab..nc., or ab..nc. ruull from tho ,...Ieo. Ab..nc. wh.n on.', right. or lI.blllll.. ar. beln, adJudg.d I. u.uaUy prima 'ad. pr.Judlclal, Bul In 10m. f.w cu.. ablenc. may be a polic" Inlload o' tho r.aull a. m1l1lary l.rYlee, and dl.cr.Uon I. ...t.d In tho court. 10 a.. that tho 1m- mUllillu of tho Acl ar. nol pul to ,ueb UII- worthy u... AOirmed. Ire Mr,Ju.tlc. BLACK. dluontln" Th. pelltloner I. a .oldl.r who .at on dllty In Wllhln,lon throughouI Ihe count o' Ih. 1IlI,IIIon In North Carolina d. Ihlt aCllon againll him, H. duly clalm.d th. prol.ctlon a. tho Sold I...' and Salloll' Ci.1I R.llef Act d. 1940, 50 U,S,C,A, App.ndlx, I 501 .1 '.q,. and rtlla upon It her., I lhlnk h. .hould pr..all, Th. rtlevanl .talutory provi.lon befor. u. may be lummarllod II 'ollon I Acllon. brollght agaln.t a per.on In mllllary I.r.lc. .han b. .Iay.d upon appllcalion a. thll p.non "unl..., In tho opinion d' Ih. court, Ih. al>lIIly a. th. . . . def.ndlnl to condllcl hi. defcn.. I. nol materl.lly aff.cl.d by r...on a. hi. military ..r.lc.... Th. .tltulory Ilngul,. h&l no l.gl.lall.. history and hll nol pr..lou.ly b..n Inler- pre led by thl. Courl, Tho olaboralo I.,i.- 1111.0 history ..I 'orlh by Ih. Courl II a hlslllry of a dau.. which W&l .trlcken frolll th. 1918 Act, which it nol before u. now, and which, on 111 raCt, hu . mun- Ing wholly dlfTerenl from Ih. dau.. under cOllllrllcllon,I lIenc. Ih. ('roblelll I. a or the detl'lllflllt 10 fOln(,I, wltb tb. JudKl1lrll1 or Ilrdt'r IUlI,hl I. 1101 m.'nl. aU, .rrtl'l,.) li, fflllllll of LI, mlllt.r, .'"- It'f." 1'111, llIl'DIlI, (u roulb aubUaut"l, wbat III 1'llIlaU," Lltlor, "", Lb.t the artJoo 1111 II BUPR!K! OOtlRT REl'OIlTER I" V.I. nUrTow one of 'nllylll of the worda 01 for , leave or iIlacl~aed' III urllncy' ~ Ih. al.tute 1t..II, hla aup.rlon I It conclud.a th.t he did nellh.r, The Court dati not know whether Doane .ttempted to find new counaell It u. aum.a th.t he did not. The Court dou not know why Doane tho.. to p.rtlclp.te In cerllln other I.w aulla .g.lnat blm con. ductcd almull.ncoualy with thla on. I It .lIumtl th.t the olh.n w.r. I... imllort.nt thin thll caa.. Th. Court can Dot know '" wheth.r th. p.tltlon.r truly ow.. the .mounl 01 th. Judcm.nt .g.lnat hlml It mull ...um. th.t h. doea bec.ua. 01 a proc..ding conduct.d .galnlt him In bla .b..nc.," Th. Court .mphull.a thlt Doone It , m.mb.r 01 the bar. But for the duration ollh. war, h. II prim.rlly . aoldler, with a Job 10 do which Congr... Int.nd.d should ov.nh.dow penon.llnt.r..ta, wbelher bls, or Ihoa. of olh.n who leek , penon.1 Judgm.nt .g.lnu him, It It dlllicult for me to b.lI.v. th.t he could adequ.t.ly have pr.pared for thla trl.1 without , I..ve of many w..ka, The purpoa. 01 the Act It to prevent aoldl.n .nd sallora from belnr har....d by civil IItlg.tlon "In order to .n.bl. auch p.nona to d.vole th.lr entire .n.rgy to the del.na. n..da 01 the N.tlon," I 100. H. la r.qulred to d.vot. blm..1I to a.rioua bUlln..a, and ahould not be uk.d elth.r to .1I.mpt to convlnc. bla aup.rlor offic.n 01 th. Import.nc. 01 hia prlv.l. .ff.ln or to ap.nd bls tlm. hunting lor I.wy.n, Th. tri.1 court ahould, .t the very I.aat, hlv. Inqulr.d 01 Ih. .ppropri.t. mlllt.ry .ulhorlll.. wh.lh.r th. p.tlllon.r could b. rrlnl.d .mpl. I.av. to pr.par. hla del.nle .nd be prtl.nl tor trl.I, II the Act dati not r.qulr. this, It a.rvel UlIl. purpoa., II may b. argu.d th.lthla p.tlllon.r, . m.n of knowl.dg. .nd exp.ri.nc., ia .a com. p.l.nl to uk hla lup.rlor offic.r for I.ave 1232 I b.U.ve th.t th. cI.uae und.r consld.r. .tlon rrqulr.. that an .ction .g.lnat a penon In military a.rvlce muat b. If' lji' f! i " 11;" j,' ' '\''' II" I' !! \ ' ~ I tll! at.y.d unlm th. trl.1 Judg. concludtl (0) Ih.t no p.nonll Judcm.nt will rtlull .nd th.t th. .ctlon will In eff.ct pr...rv. Ih. In. tertlla 01 .n th. p.rti.. for the dur.tlon 01 the Wlrl or (b) th.t the d.l.ndant la only a formal party I or (c) th.t thc de. I.ndant n..d not be pr.a.nt lor any pur. 1'0.., eith.r belor., during, or aft.r the trial, .nd Ihat he will be .d.quat.ly rrpre. a.nl.d .nd hu no ne.d to t.atlfy or p.r. ticlpale In .ny w.y I or (d) thlt the de. lend.nt'a mlllt.ry aervlc. dati not pre. clud. him Irom having .mple opportunity to get ready lor. and to t.k. his n.c....ry part In th. Iltlgalion, In my opinion, non. 01 theae condltlona are mct h.r., Allbaugh th. action b.gan aa . proc..dlng to pr.a.rv. th. truat ..t.t., which wu quit. prop.r, It t.rmlnat.d wllb . p.non.1 Judgment .g.lnat th. p.lltloner for $11,000 .ft.r a trl.1 by Jury 01 m.ny dl.pul.d laCla, The p.tltion.r wu ob. viously not m.rely a formal plrty, One I..u. In th. cu. waa wh.th.r h. had dla. alpal.d tru.t lunda, .nd lor auch .n In. qulry hla pr.a.nc. 10 hur th. .vld.nce agllnll him wu e..enllll to hi. Inl.resta and hll own l.ullOony wa., In th. warda 01 th. trial court, "highly desirlble", Th. aol. posslbl. ground lor the Court'l acllon, Ih.relor., la thai th. d.ltndant could have b..n pr.senl .nd, wlllully taking .d..nlag. of the Act, cho,. Instcad to .b..nt hima.lf, In reaching thl. result th. ::'uurl .ngages in pr.ch.ly the ap.culalion ..hlch I think Ih. Act prohibita, Th. CoUtl Jo.a not know, .nd th. .Ial. COlltt did nol Ity to find out, wh.lh.t Doon. .PI,U.d "II "q , 'I , I . I ~. ; WII to b, IlI,.d 'Ieept wbUt the de. fendant could rlldU, PI' I Jud.ment Ilaloll hlm.elt. Dut tblt lanlu,,, .'11 removed Ind tb. preteDt I1ro,I,loD In- .erted: the acUon UpOD proper ,eqtlut .hlU be ,l.,.d unlell la Ib, olllnloo ot Ihe trlel JudIe. ..th, abUil, ot . . . tb. dllfrndlnt 10 conduct bll deleD.... I. .rreeled b, mlllt.r, IInle., 'l'be dilu_ tot'. bel"'et'b Ibllit, 10 II" I JudllUl!Dt, IDd .MIlI, 10 CODduct . ddente (I 10 lUll tblt lb. two dlUlt, hue lub- , , ,tIQUIU, nOlhin, la com won. '1'b. .bU. It, to 11" cllUII bll bun hrt In loml ncdoa. of 1 be Act, U, t. ,.. II 203. 206, but It I. Dot beror. u. her.. I Uld Ihl. be.. . Judlm..t b, dal.u1t, noon I wllht hi" It .11 ..Idl upon prop- er motiou mad. It ID' Urn. withlD "nID'- I, da)'. .Uer the letmlnlUOD" of bll Inn. II", IItvl,., t 200(4), Wbtlb.. thll 'fellaD ,,'UI permit DOODI to auack thl. JUdIUD.UI aUer the war It I qUtltJOD ,,'Iilc.h lb. Cuurt tlllulIlt flllln,.. , ...: I~')..i h ~~ . I .i!- " I 11m pro R.I ~'I er., ~cilc eno dial ler\ IIC\ slati tatl whl lint the ll~tlNITl:D'IT"Tl:I y, iODNION '1'11,1. a. ls Ih. Irla. '-courll' 'bUt Ih~.'.riUlnbit properly authorlalng lTand JUI')' to' 6nl.h f.lls b.coUl. the policy ..t h.r., no mall.r In,..tlptlon. berun In D.cember, but not flow many Qualification. th. Court trl.. to finl.h.d ellh.r during D.c.mb.r or F.bru. work Into II, will .hool far b.yond Ih. ary t.mll, Jud,Cod. II 79, 284, 28 U,S,C, confin.. of Ihl. ca.., In Ih. coune of the A. 11152, 421. war, num.rou. action. will b. brought agaln.t .oldl.n who have n.ver hurd of thl. Act and hay. no notion thaI thl. Court ml~ht want th.m to .pply to . an , th.lr .up.rlor offic.n for luv. .nd to make and fil. a form.l r.cord of th.lr aup.rlor ollic.n' refu..1. I (ur Ihat today'. d.cI.lon ..rloul1y IImll. the b.n.fit. Congr... Int.nd.d to provld. In th. Soldl.n' .nd S.lIon' Civil R.llef Act, It .ppar.ntly glv.. the Act a Iib.r.1 con'lru.tlon for th. b.n.fil of cr.dllon ralh.r th.n (or the b.n.fit of .oldl.n, It pl.... In trial Judg.. an enormou. dllcr.llon to det.rmln. (rom a dl.tanc. wh.lher a p.rlon In mllllary ..rvlc. hu .xercl..d prop.r dlllg.nc. to lecur. a luv., or wh.th.r It I. b..t for the national def.n.. that h. make no appll. cation at all, Th... ar. qu..tlon. on which the Judiciary h.. no comp.l.nce, .Inc. only Ih. mllll.ry aUlhorltl.. c.n know the an.w.n, a8,OL <(J)_n~ 'fI I I"", . .. liD tl.l. lOB UNITED STATES ., JOHNSON. UNITED lTATES v, SOMMERS It ai, No., 4 and 5, n.ar,ued .nd 8ubmUled OcL 12, 10f2. Decided June T, ISH3, neburtna Denied DeL II, 10f3, lief 820 V,8, -, SH 8,01. ~, B8 1..Ed. --. I. Gr..d 'ary $030 Where gr.nd Jury Impancl.d for De- c.mbtr term WII properly continued Ihrough February I.rm, order authorizing a lurther conllnuance during March I.rm 10 finl.h In...llgallon btgun, but nol fin. Ished during the Oec.mber and F.bruary terms, was not to be conltrued II authorl&- Ing grand Jury In vlolallon 01 .lalul., 10 finish during Moreh Inv..tlgalloOl b.gun In February, but wa. to be conllru.d .. 03 B,Or,-75 'I I. Grand '.ry $0'0 A grand Jury aUlhorlled to conllnu. to .11 to finl.h Inv..tlgatlon. may finl.h only .uch Invelllgallon. .. w.r. b.gun duro In. grand Jury'. original t.rm, and n.w domain. of Inquiry may not th.rull.r b. enler.d by grand Jury. ]ud,Cod. I 284, 28 U.S,c.^, I 421, 3, Orand Jary 4=33 Th. work of grand Jury In ex.rclllng II. broad Invelligatorlal pow.ra with r.. gard 10 f.d.ral ofT.n... II not circum. .cribtd by t.chnlcll r.qulr.m.nt. gov.m. Ing uc.rtalnm.nl of guilt once It ha. mad. Ih. charg.. that culmlnal. It. Inqulrl.., bUI grand Jury may funu. .11 ramlficallon. of particular fi.ld 0 Inquiry. 4, Grand 'ary $033 A grand Jury Inv"llptlon of ob.truc- lion. 10 Ju.tlce or p.upor! (r.ud., or tax ....Ion., may be Inlo a coune of conduct cOnllnuln. durin., and perhap. ..en all.r, It. Inquiry, .nd .rand Jury I. not re.trlcl.d In d.alln. wilh .11 crlm.. dl.clo..d by InYtltlgallon, Jud,Code I 284, 28 U,S,C,A, 1421, I, Grand Jary $021 The purpo.. o( act aUlhorllln. con- tlnuallon 01 grand Jury Inv..tI..tlon. wa. to make grand Jury. mar. conllnuou. and th.refor. more comp.l.nt In.trum.nt In In- vOllIgatln. vlolallon. o( enl..ged domain of f.der.1 criminal law, Jud,Code I 284, 28 U,S,C,^, I 421, ., Grand jary 4=.0 A grand Jury ,ulhorl.ed \0 continue Invesllgallons b.yond original l.rm I. not forbidden to inquire Inlo maUe.. within the gen.ral .cope of Its Inquiry, bUI only Inlo a Iruly n.w, In the .en.e o( dlllociat.d, ,"bJectom.lt.r, Jud,Code I 284, 28 U,S,C, ^,142I, 7. Grond 'ary c=>.0 Wh.r. grand Jury Impan.l.d In 0.- cember and comm.ncing In'OIllglllon 01 lax evasion. wa. allowrd 10 contlnu. .Ilting during Frbruary Ind March ttrm., grand Jury, on discovering I sy...mlllc pracllc. of lax evallon over I coutle of YUrI, WII 1281 Mml q-/5 - _q~ CASE 00. :J"I (XJ.'KllUI"l' I.J 1<<>. q5 - 538.l.S1VII. A3 Ar~.. ~_ ~r-l -111 Qr-L:i1 63~-:S-__~_4)t.l:'--b:-€--h~t~__ 4.' (p (- _;; h ; i I c: Lt-_IJJ_~J2 ona..LL 5..58- ~eI-f~_mCtf+"n A' 6.1 f.t Y...~__fe f e ~ ,. ,I It:. , 7.' Wl- Jea,,,, rn~~(' s (h.. (/3' 6eofje-H- ~H?-A~ 6.1.". &q fl1CdLJ=:f','d'~$"("\ 10.' 74 - /2..oba-l- Pen/, "hJ fan fA#- 'II L I otjrJ-I-Ie~~-f-WllCJ. r~ J r, u.. ,-/,:';' - J(a.+I1/~en J-/e ,'n2-. 13.' 7.;). - jean O<jJ e r fA. U!(p - 1l1. DU-;~ -fY\OFt-t'U~ 15.' &8- G.Qf:.d ()(1 n e 11 f'l , '~ e r 16.' (p:J. S ha.W(')Ci me tAt/en A47.. 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