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POMALA STONE,
ERIC E. STONE,
Plaintiff.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION. LAW
: NO. 96.679
v.
SALVATORE A. NICASTRO
Defendant
: JURY TRIAL DEMANDED
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P~OPOSEP POINTS FOR CHARGE
QF THE gEFENDANT, SAI,.VATORE A. NICASTRO
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By:
James G, Nealon, III, Esquire
Ally, 1.0, #4645"
301 Market Streel -- 9th Floor
P,O, Box 665
Harrisburg, PA 17106.0665
(717) 232-9900
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D1.
You are not permitted to determine your verdict based on guess work, speculation,
conjecture or sympathy for a party. Engle v, SplQI), 425 Pa. 254,228 A,2d 745 (1967);
Salovlch v, Lee, 385 Pa, 133, 122 A.2d 212 (1956).
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D4. ORDINARY CARE. DEFINITION
Ordinary care Is the care a reasonably careful person would use under the
circumstances presented In this case, It is the duty of every person to use ordinary
care not only for his own safety and the protection of his property, but also to avoid
Injury to others, What constitutes ordinary care varies according to the particular
circumstances and conditions existing then and there, The amount of care required by
the Ililw must be in keeping with the degree of danger Involved,
Pa, SSJI (Civ,) 3,02
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05.
The mere happening of an accident Is not evidence of any negllgence on
the f)8rt of the Defendant, Salvatore A, Nicastro,
Platts v, Driscoll, 245 Pa. Super. 235, 369 A.2d 381 (1976),
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08.
The mere fact that Mr. Nicastro's car went Into a skid on the roadway Is
not conclusive evidence that he did not have his car under control, or of any
negligence; the question of negligence in such cases Is for you, the Jury to decide.
McElhinny v. I/Iff, 436 Pa. 506, 260 A.2d 739 (1970).
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The amount of medical expenses Is not admissible evidence In this case,
it Is not probative of pain and SUffering suffered by any party, and it Is not ,to be
considered by you In reaching any decision on this case,
Marlin v. Soblo/nay, 502 Pa. 418, 486 A.2d 1022 (1983).
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II. DAMAGES
Defendant contends that the InJuries were minor. At the time of the
accident, the Plaintiff was pregnant. Following the accident, she was seen at the
emergency room. It was determined that there was no Injury to the unborn child. Ms.
Stone had a few follow-up visits with her treating obstetrician, George Jeffries, M.D. Dr.
Jeffries was also of the opinion that there was 110 injury to the unborn child.
III. STATeMENT OF PRINCIPLE ISSUES OF LIABILITY AND DAMAGES
1. Negligence of the Defendant, Salvatore A, Nicastro,
2. Causal relationship between any negligence of the Defendant and
the Plaintiff's Injuries.
3. Damages, if any, sustained by the Plaintiff.
Defendant contends that the accident was unavoidable. The accident was caused by
the treacherous road conditions as opposed to any negligence on the part of Mr,
Nicastro.
IV. DISCOVERY
In her Pre-Trial Memorandum, Plaintiff points out that there was a Motion
to Compel Discovery filed, This Issue has now been resolved. Mr. Kosik has agreed to
withdraw any claim for sanctions.
POMALA STONE a~d ERIC E.
STONE, her husband,
PIa inti ffs
#15
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
. SALVATORE A. NICASTRO,
Defendant
CIVIL ACTION - LAW
NO, 96-0679 CIVIL TERM
PRETRIAL CO~EERfNCE
At a pretrial conference held February 26, 1997,
before Edgar B. Bayley, Judge, present for the plaintiffs was
Richard A. Sadlock, Esquire, and for the defendant, Matthew R,
Gover, Esquire.
Plainti tt, Pomala Stone, was injured in an automoblle
occident on February 23, 1994. She claims that defendant
crossed over into her lane of travel on Route 114 and struck her
vehicle. Negligence is contested.
Plaintiff was approximately four and 0 half months
pregnant at the time of the occident. She alleges that she
incurred premature contractions resulting in evaluatian and
testing to determine if her fetus was inJured. The primary
component of her claim for general damages is the emotional
distress she alleges she incurred out of a concern of whether
the accident would cause complications in her pregnancy and
injury to her child. The baby was born healthy. Plaintiff' s
husband's claim is for consortium.
Estimated time af triol,"o
Edgar
Richard A. Sadlock, Esquire
For Plaintiffs
Matthew R. Gover, Esquire
For Defendant
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POKALA STONE and
ERIC E. STONE, her husband,
plaintiffs
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
v.
CIVIL ACTION - LAW
NO. 1{r (" /It (' I 't'" ( "j (t1 "'-
JURY TRIAL DE~NDED
SALVATORE A. NICASTRO,
Defendant
NOTICE TO ~EFEND
You have been sued in court. If you wish to defend against
the claims set forth in tne following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and judgment may be entered
against you by the Court without further notice for any money
claimed in the complaint or for any other claim or relief requested
by the Plaintiff. You may lose money or property or other rights
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 Courthouse - 4th Floor
1 Courthouse square
Carlisle, PA 17013
(717) 240-6200
84974/DKR
I'o._,,_.~_ _.... I
POMALA STONE and
ERIC E. STONE, her husband,
Plaintitts
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
v.
: CIVIL AC'rION - LAW
SALVATORE A. NICASTRO,
Detendant
NO.
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintitts Pomala stone and Eric E. stone are wite and
husband, adult individuals, citizens of the Commonwealth ot
Pennsylvania, who reside at R.D. #1, Box 702 E, Landisburg, Perry
County, Pennsylvania.
2. Defendant Salvatore A. Nicastro, an adult individual,
citizen of the Commonwealth of Pennsylvania, who resides at 288
Bradley Circle, New Cumberland, Cumberland County, Pennsylvania.
3. The facts and occurrences hereinafter related took place
on or about February 23, 1994, at approximately 8:20 a.m., on S.R.
114, Hogestown Road, Silver Spring Township, Cumberland County,
Pennsylvania.
4. S.R. 114 in the area of the accident was a two-lane,
highway with one eastbound and one westbound lane.
5. At that time and place, it had been snowing heavily and
the roadway surface was snow covered.
6. At that time and place, Plaintiff pomala Stone was
83379/tAO
operating a 1984 Ford Bronco II and WIIS traveling westbound on S. R.
114.
7. At that time and place, Defendant Salvatore A. Nicastro
was operating a 1987 Honda Accord LX and was traveling eastbound on
S.R. 114.
8. At that time and place, Plaintiff Pomala stone was four
and one-half (4\) months pregnant.
9. At that time and place, Defendant Salvatore A. Nicastro
operated his vehicle at an excessive rate of speed which was not
safe and prudent under the conditions then and there existing.
10. At that time and place, Defendant Salvatore A. Nicastro
lost control of his vehicle and crossed the centerline of S.R. 114
in Plaintiff pomala Stone's lane of travel.
11. plaintiff pomala Stone saw Defendant Nicastro crossing
the center line into her lane of travel and veered to the right
onto the berm of the roadway to avoid being struck by Defendant's
vehicle.
12. Regardless of Plaintiff's efforts to avoid being struck
by Defendant, the left front portion of Defendant Salvatore A.
Nicastro's vehicle violently collided with the left front portion
of Plaintiff Pomala Stone's vehicle.
13. The foregoing accident and all of the injuries and
damagss set forth hereinafter are the direct and proximate cause of
2
the neqliqent, careless, wanton and reckless manner in whioh
Defendant Salvatore A. Nicastro operated his vehicle as tollows:
(a) Failure to have his motor vehicle under such control as
to be able to stop within the assured clear distance
ahead;
(b) Driving at an excessive rate of speed which was not
safe and prudent under the conditions then and
there existing;
(c) Failure to stay within his own lane of travel and
crossing the centerline of the raodway into
Plaintiff pomala stone's lane of travel;
(d) Failure to apply his brakes in sufficient time to avoid
striking the stone vehicle;
(e) Failure to keep a proper watch for traffic on the
highway;
(f)
Failure to drive his vehicle with due regard
the highway and traffic conditions which
existing and of which he was or should have
aware;
for
were
been
(g) Failure to keep proper and adequate control over
his vehicle;
(h) Failure to keep alert and maintain a proper watch
for the presence of other motor vehicles on the
highway; and
(i) Driving his vehicle upon the highway in a manner
endangering persons and property and in a reckless
manner with careless disregard to the rights and
safety of others and in violation of the Motor
Vehicle Code of the Commonwealth of Pennsylvania.
14. As a direct and proximate result of Defendant Salvatore
A. Nicastro's negligence, Plaintiff Pornala Stone sustained painful
and serious bodily injuries which include, but are not limited to,
3
premature labor contractions, bruises to chest, low back pain, left
hip and leg pain and multiple contusions and abrasions.
15. As a direct and proximate result of Defendant's
negligence, Plaintiff Pomala stone suffered great emotional
distress over the fear of the possibility of losing her unborn
child.
16. By reason of the aforementioned injuries sustained by
Plaintiff Pomala Stone, she was forced to incur liability for
medical treatment, medications, hospitalizations, and similar
miscellaneolls expenses in an effort to restore herself to health,
and claim is made therefor.
17. Because of the nature of her injuries, Plaintiff Pomala
Stone has been advised and, therefore, avers that she may be
forced to incur similar expenaes in the future, and claim is made
therefor.
18. As a result of the aforementioned injuries, Plaintiff
Pomala Stone has undergone and in the future will undergo great
physical and mental suffering, great inconvenience in carrying out
her daily activities, loss of life's pleasures and enjoyment, and
claim is made therefor.
19. As a result of the aforementioned injuries, Plaintiff
Pomala stone has been and in the future will be subject to great
humiliation and embarrassment, and claim is made therefor.
4
WHEREFORE, Plaintiff P~mala stone demands judgment again~t
Dftfendant Salvatore A. Nicastro, in an amount in excess of Twenty-
Five Thousand Dollars ($25,000.00) exclusive of interest and costs
and in exceSR of any juriSdictional amount requiring compulsory
arbitration.
CLAIK I
Eric E. stone v. Salvatore A. Nicastro
20. paragraphs 1 through 19 of plaintiffS' Complaint are
incorporated herein by reference.
21. As a result of the aforementioned injuries sustained by
his wife, Plaintiff pomala stone, Plaintiff Eric E. Stone has been
and may in the future be deprived of the care, companionship,
consortium, and society of his wife, all of which will be to his
great detriment, and claim is made therefor.
WHEREFORE, Plaintiff Eric E. stone demands judgment against
Defendant Salvatore A. Nicastro in an amount in excess of Twenty-
Five Thousand Dcllars ($25,000.00) exclusive of interest and costs
and in excess of any juriSdictional amount requiring compulsory
arbitration.
Dated: $t/Ju{IJ~ ~:'iJJL
M chael E. Kos k, Esqu re
I.D. No. 36513
4503 North Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiffs
VERIFICATIOIf
We/ '0JI\Ll 1'1'0.' aDeS DI&'. 1'1'0.', PlaiDtiff., have read the
foregoing COJIJLAIMT and do hereby .wear or affirm that the fact.
.et forth in the foregoing are true and correct to the belt of our
knowllldge, information and belief.
We understand that this
Verification ia made subject to the penalties of 18 Pa. C.S. 54904/
relating to unsworn falsification to authorities.
WITNESS:
.-,
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\(1) \(" Cr. .--,,\.c:-...,--c_
JOKALA 8TONI
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DATED:
\\7(~\qlo.
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POMALA STONE
ERIC E. STONE.
PlaintIff.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY. PENNSYLVANIA
: CIVIL ACTION. LAW
: NO. 98.878
: JURY TRIAL DEMANDED
v.
SALVATORE A. NICASTRO.
Defendant
pRAECIPE
TO THE PROTHONOT AR Y:
Please enter my appearance on behalf of Defendant, Salvatore A.Nicastro, In
the above-captioned matter.
Respectfully submitted,
CALDWELL & KEARNS
By: :e ,dJ'....
Ja s G, Nealon, III, Esquire
Atty. I,D, #46457
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Attorney for Defendant
, .
.Dat.d: February 15, 1996
(68671) .
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Term_ 96-679
s.rYeCI the within a......~~.\B1nt............_..........._..............................n..., ..........,.....................~...............
...........................................................n.............................................................~......................,.......................
Salvatore A. Nicastro
upon ......................... ............................__..........._.......................................................................................
..............................................................................................................................................................................
the within named d.fendanlll by handlnq to and lea'tinq with .l~.~~r~. PLTOIi'mflC!J...l\1QJ;hftJ:::.
....~.~7.L~~..~.I).s\.f'!?r;.f?9.t)...in..s:!}~~t;;'g~........._.._...._..___..__.....................................................................
................................................................_...............u....._.......................................,........................................
a tru. and att..ted copy of the same at ...?Q.~..Qr.~\!J~L~.~r.!;.!!!J...N!l'r{..$:~!!~.h'!n9.d~iL...........
,.........n............................................_......__.....___._.....................................................................................
al ...,.....t?;.?.?...... O'c1ock ....r...M.. .../:lg.n;jl...v......l.9.~.li.,.............................................................................
and informed ..............~~r........................,................." ................................. of the conlenll thereof.
Sheriff'. CO.II $ 44.80 Paid 3-21-96
So Answer.,
Sworn of thia .........2.~.t....... day of
........t'!~r.sh............................. 19.~L...
t:l1. ~J'
:. /' -, , , .'
/;:" ( / ( ..--<.:
~b~riff of YORK COUNTY
:::::::~::;Jj;~~~~i{Q0;~~
N~larlal S.a'
Mill... J Oroo., Nolary Publlo
YOrl<, YorkCouply
My Comml."o~ ~ 'p".. April 2~, 100B
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operating a 1984 Ford Bronco II and was traveling westbound on S.R.
114.
7. At that time and place, Defendant Salvatore A. Nicastro
was operating a 1987 Honda Accord LX and was traveling eastbound on
S.R. 114.
8. At that time and place, Plaintiff Pomala stone was four
and one-half (4~) months pregnant.
9. At that time and place, Defendant Salvatore A. Nicastro
operated his vehicle at an excessive rate of speed which was not
safe and prudent under the conditions then and there existing.
10. At that time and place, Defendant Salvatore A. Nicastro
lost control of his vehicle and crossed the centerline of S.R. 114
in Plaintiff pomala Stone's lane of travel.
11. Plaintiff Pomala Stone saw Defendant Nicastro crossing
the center line into her lane of travel and veered to the right
onto the berm of the roadway to avoid being struck by Defendan'.'s
vehicle.
12. Regardless of Plaintiff's ~fforts to avoid being strUck
by Defendant, the left front portion of Defendant Salvatore A.
Nicastro's vehicle violently collided with the left front portion
of Plaintiff Pomala Stone's vehicle.
13. The foregoing accident and all of the injuries and
damages set forth hereinafter are the direct and proximate cause ot
2
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the neqliqent, careless, wanton and reckless manner in which
Defendant Salvatore A. Nicastro operated his vehicle as followe:
Failure to have his motor vehicle under such control as
to be able to stop within the assured clear distance
ahead;
(b) Driving at an excessive rate of speed which was not
safe and prudent under the conditions then, and
there existing;
(a)
(c) Failure to stay within his own lane Of travel and
crossing the centerline of the raodway into
Plaintiff pomala Stone's lane of travel;
(d) Failure to apply his brakes in sufficient time to avoid
striking the stone vehicle;
(e) . Failure to keep a proper watch for traffic on the
highway;
(f)
Failure to drive his vehicle with due regard
the highway and traffic conditions which
existing and of which he was or should have
aware;
for
were
been
(q) Failure to keep proper and adequate control over
his vehicle; (
(h) Failure to keep alert and maintain a proper watch
for the presence of other motor vehicles on the
highway; and
(i) Driving his vehicle upon the highway in a manner
endangering persons and property and in a reckless
manner with careless disregard to the rights and
safety of others and in violation of the Motor
Vehicle Code of the CommonWealth of Pennsylvania.
14. As a direct and proximate result of Defendant Salvatore
A. Nicastro's negligence, Plaintiff Pomala stone sustained painful
and serious bodily injuries which inClude, but are not limited to,
3
premature labor contractions.. bruises to chest, low back pain, left
hip and leg pain and multiple contusions and abrasions.
15. As a direct and proximate result ot, Oetendant'.
negligence, plaintiff Pomala stone suffered great emotional
distress over the fear of the possibility of losing her unborn
child.
16. By reason of the aforementioned injuries sustained by
Plaintiff pomala stone, she was forced to incur liability for
medical treatment, medications, hospitalizations, and similar
miscellaneous expenses in an effort to restore herself to health,
and claim is made therefor.
17. Because of the nature of her injuries, Plaintiff pomala
stone has been advised and, therefore, avers that she may be
forced to incur similar expenses in the future, and claim is made
therefor.
18. As a result of the aforementioned injuries, plaintiff
Pomala Stone has undergone and in the future will undergo great
physical and mental suffering, great inconvenience in carrying out
her daily activities, loss of life's pleasures and enjoyment, and
claim is made therefor.
19. As a result of the atorementioned injuries, Plaintiff
Pomala stone has been and in tho future will be subject to great
humiliation and embarrassment, and claim is made therefor.
4
-
-I
,
,
i
WHEREFORE, Plaintiff Pomala stone aemanas judgment against
Cetenaant Salvatore A. Nicastro, in an amount in excess of Twenty-
Five Thousand Dollars ($25,000.00) exclusive of interest ana costs
and in excess of any jurisaictional amount roquiring compulsory
arbitration.
CLAIM I
Eric E. Stone v. Salvatore A. Nicastro
20. Paragraphs 1 through 19 of Plaintiffs' Complaint are
incorporated herein by reference.
21. As a result of the aforementioned injuries sustainea by
his wife, Plaintiff Pomala Stone, Plaintiff Eric E. Stone has been
and may in the future be deprived of the care, companionship,
consortium, and society of his wife, all of which will be to his
great aetriment, and claim is made therefor.
WHEREFORE, Plaintiff Eric E. Stone demands jUdgment against
Defendant Salvatore A. Nicastro in an amount in excess of Twenty-
Five Thousand Dollars ($25,000.00) exclusive of interest and costs
ana in excess of any jurisaictional amount requiring compulsory
arbitration.
Datea: $..t.bt-l<I1-4j "':' Qq~
.
M chael E. Kos k, Esquire
I. C. No. 36513
4503 North Front Street
HarriSburg, PA 17110
(717) 238-6791
Counsel for Plaintiffs
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VERIFICATION
We, POICALA ITON. and IlRII8. ITON., Plaintitfl, have read the
toregoing COMPLAINT and do hereby swear or affirm that the tact.
set torth in the foregoing are true and correct to the best of our
knoWledge, information and belief.
We understand that this
Verification is made subject to the penalties of 18 Pa, C.S. 54904,
relating to unsworn falsification to authorities.
WITNESS:
/-,
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DATED:
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OEftTIFICATE OF SEIJV,CE
AND NOW, this 9th day of May, 1996, I hereby certify that I have ..rved the
foregoing Praecipe on the following by depositing a true and correct copy of .eme In the
United States malls, postage prepaid, addresled to:
Mark S. Fenlce, Esq.
2917 N. Front Street
Harrslburg, PA 17110-1223
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Jame. G. Nealon, III, Esquire
Dated: Mey 9,199$
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6.
Again, on May 6, 1996, June 4, 1996 and June 26, 1996,
Plaintiffs' counsel wrote counsel for Defendant Nicastro and
requested responses to the Interrogatories and Request for
production of Documents. copies of the letters are attached hereto
as Exhibits "B", "C" and "0".
7. Once again, on January 3, 1997, Plaintiffs' counsel wrote
to counsel for Defendant Nicastro and requested responses to the
Interrogatories and Request for Production of Documents. A copy of
this letter is attached hereto as Exhibit "E".
8. To date, Defendant Nicastro has not responded to
Plaintiffs' Interrogatories and Request for production of Documents
and said responses are lonq overdue.
9. Defendant Nicastro has failed to comply with the
discovery as required by Pa. R.C.P. 4006 and 4007.
10. All of the discovery sought by PlaintiffS through their
Interrogatories and Request for Production of Documents is relevant
to the instant action.
11. Defendant Nicastro has had more than ample time to'
respond to Plaintiffs' Interrogatories and Request for production
of Documents.
12. Our Rules of Civil Procedure provide for the liberal
granting of discovery.
2
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13. Pa, R,C.P. 4019 provides that upon motion of a party, th~
Court can make an appropriate order when a party "fails to make
discovery." Pa. R. C. P. 1049 (a) (viii) .
14. PlaintiffE;, tt 3refore, believe that answering all of
Plaintiffs' discovery requests would not burden or oppress
Defendant Nicastro.
15. Plaintiffs are represented by Michael E. Kosik, Esquire
of the firm of Angino & Rovner, P.C., 4503 North Front Street,
Harrisburg, Pennsylvania 17110, (717) 238-6791.
16. Defendant Nicastro is represented by James G. Nealon,
Esquire of the firm of Nealon & Gover, 301 Market Street, 9th
Floor, P.O. Box 865, Harrisburg, Pennsylvania 17108-0865.
WHEREFORE, Plaintiffs respectfully request that this Honorable
Court order Defendant Nicastro to respond to Plaintiffs'
Interrogatories and Request for Production of Documents.
Plaintiffs further request that should Defendant Nicastro fail to
comply with the Court order, then Defendant Nicastro should be
prohibited from entering defenses to Plaintiff:s' claims at tr'i~l,
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LISTED I"
THE BEST L~ wYERS
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April 9, 1996
"
James G. Nealon, Esquire
CALDWELL' KEARNS
3631 North Front street
Harrisburg, PA 17110
RE: pomala stone v. Salvatore Nicastro
Dear Jim:
In our previous letter to you, dated February 26, 1996, we
granted you a "reasonable extension of time" to respond to the
complaint. It has noW been over a month, and we still have not
received an Answer to the complaint. Please advise when we might
expect to receive the Answer.
Also, we forwarded you Interrogatories and Request for
production of Documents on February 27, 1996. since then, we have
provided you with our responses to discovery. We would request
that you forward us responses to our discovery within the next two
weeks.
Should
contact me.
matters.
you have any questions, please do not hesitate to
Thank you for your anticipated cooperation in these
-~Y"""'I (,
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H03 NORTH FRONT STRUT HARR'SBURG PA 17"0,\105
(1171238.1;791
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IOII'H M MILILLO
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MICH.IL I ~1)1I~
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MICHAIL! N.I'ITSKY
L"V.'lINCI' ..lONI
O"WN L'IIN"INOS
STEPHIN I PIDll5lN
SOLOMON Z, ~~I\'SJ(V
J05lPH M 0011'
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THE BEST LAllIER!
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RICHAlD C 'NOINO
NIIL J lO\'NIl
June 26, 19'16
Jame. G. Nealon, Esquire
NEALON , GOVER
301 Market street, 9th Floor
P. O. Box 865
Harri.burg, PA 17108-0865
RE: pomala Stone v. Salvatore Nicastro
Dear Jiml
I previously noti:f1ed you that Answers to our discovery are
long overdue in this tile. We served Interrogatories and Requ..t
for production of Documents on you on February 27, 1996 and ntill
have not received Answers. It is now approximately a month later
without any additional word as to Allstate's position towards
.ett lement or responses to the discovery. If I do not have Answers
by July 15, lIU, I ....ill have no choice but to file a Motion to
Compel.
Thank you tor your attention to this matter.
MEK/4mr
DICTATED - NOT READ
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KOSrfVl
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pAMILA 0 IH\lMAI'<
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ANGINO & ROVNER, P.C~
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NEil. " ROV'ltR
January 3, 1997
James G. Nealon, Esquire
NEALON &. GOVER
301 Market Street, 9th Floor
P. O. BOX 865
Harrisburg, PA 17108-0865
RE: pomala Stone v. Salvatore Nicaetro
Dear Jim:
As you are aware, we had scheduled the deposition of Dr.
Jefferies, which will be taken on January 16, 1997. It is our
intent to list this case for trial in the next trial term in
CUmberland county, which would be the week of March 16, 1997.
Although we went ahead and took. the deposition of your client,
we still have not received Answers to our Interrogatories, and it
will be my intent to file a Motion to Compel, if we do not receive
Answers by JanualY 15, 1997.
As I previously indicated, if your intent is to admit
liability in this matter, then there would be no need to file
Answers to the Interrogatories. However, if you are going to
continue to dispute liability, I would appreciate your filing
formalized Answers to discovery with a Verification.
Your prompt attention to this matter is requested.
s,
MEK/dmr
,
U636/DMIt
4503 NORTH 'AONT STAUT, HAAAISBURG, PA 17110.'705
(717) 235-579\
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State the amount of consortium, If any,you find Eric E, Stone hu sustained II
a result of the accident. $
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POMALA STONE,
ERIC E. STONE,
Plalntl".
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
: CIVIL ACTION. LAW
Y.
.
.
: NO. 88-879
SALVATORE A. NICASTRO
Defendant
.
.
: JURY TRIAL DEMANDED
PRAECIPE
TO: Plalntl"', Pomala Stone and Eric E. Stone,
Michael E. KOllk, Eequlre, their attorney.
You are hereby notified to plead to the enclosed New M.tter within
twenty (20) dlYs from aervlce hereof or a default Judgment may be entered agaln.t
, '
you.
"
Reapectfully aubmltted,
:~~~&~)2?
Jam.. G. Nealon, III, Eequlre
Atty. 1.0. #48457
301 Market Street .. 8th Floor
P.O. Box 865
Harrl.burg, PA 171.08-0885
('717) 232.8800
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POMALA STONE
ERIC E. STONE,
Plllntlffl
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
v.
SALVATORE A. NICASTRO,
Defendlnt
NO. 96-679
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
1-21, Paragraph 2 Is admitted; it Is further admitted that on February 23, 1994,
at approximately 8:30 a,m" Defendant, Salvatore A Nicastro, was operating his 1987 Honda
Accord In an eastbound direction on S.R 114, Silver Spring Township, Cumberland County,
Pennsylvania; the remaining averments contained in the Complaint are denied pursuant to
Pa, RC,P, 1029(e),
NEW MAIIEB
22, Any damages to which the Plaintiffs are entitled are to be reduced in
whole, or In part, In accordance with the Pennsylvania Motor Vehicle Financial Responsibility
Act, 75 Pa, C,S.A ~1701, il.lB.Q,
23, The accident giving rise to the instant action was unavoidable,
24, Defendant was confronted with a sudden emergency, not of his own
making, and acted reasonably under the circumstances,
"
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WHEREFORE, Defendant, Salvator,; A. Nicastro, urges this Honoreble Court
todllmilSthe Complaint and enter Judgment In his favor,
, ,
,
Respectfully submitted,
NEALO.N & ~~
-c: ..\ ~ c:e
By:
James G, Nealon, III, Esquire
Atty, I,D, #46457
301 Market Street-- 9th Floor
P,O. Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
,
DATED: May 2Q, 1996
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VElUfICATI9N:
I. Salvatore A. Nicastro. verli}' that the statements made in the foregoing Answer with NllW
Matter are true and correct, I understand that. false statements herein are made subject to the penalties
of 18 Pa, C,S,A, 4904 relating to unsworn falsification to authorities,
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CERTIFI~ATE OF SERVIc;e;
AND NOW, this 20th day of May, 1996, I hereby certify that I have served the
foregoing Answer With New Matter on the following by depositing a true and correct copy ,
of same In the United States malls, postage prepaid, addressed to:
Michael E, Kosik, Esq.
Anglno & Rovner, P,C.
4503 N, Front Street
Harrisburg, PA 17110-1799
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James G. Nealon,. III, Esquire
Dated: May 20, 1996
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rate of speed, preventing him from keeping control of his vehicle
and being able to stop within the assured clear distance ahead.
Defendant Nicastro also crossed the centerline of the highway into
Plaintiff Pomala Stone's lane of travel, resulting in a head-on
collision. Plaintiffs maintain that liability rests solely with
Defendant Salvatore A. Nicastro.
II . Damages
At the time of the accident, plaintiff Pomala Stone was 4 1/2
months pregnant. Although utilizing her seatbelt, she sustained
contusions to her abdomen, resulting in premature contractions and
causing concern over the health and safety of her unborn child.
Plaintiff Pomala Stone was taken to Holy Spirit Hospital, where she
was evaluated, along with testing to determine whether the unborn
fetus was injured. Although they were able to confirm that there
was no damage to the placenta or to the baby, Plaintiff pomala
Stone was placed under observation because of the premature
contractions.
Following the initial hospitalization, Plaintiff pomala Stone
followed up with her obstetrician, Dr. George Jefferies. Plaintiff
Pomala Stone was instructed to remain off work and to stay in bed
2
for the first week. After the first week, she was restricted from
standing or walking for long periods of time and continued to have
cramping and extreme anxiety over the concern for the potential
injury to the baby or the loss of the fetus. Although plaintiffs
pomala Stone and her husband, Eric Stone, had a son, Eric, who was
also a rear-seat passenger in the accident, she had difficulty
conceiving the second child and was taking fertility medications in
order to assist her in conceiving the second child. As a result,
she was even more distraught over the potential for losing the
fetul!.
Plaintiff pomala Stone remained off work until after March 28,
1994, a period in excess of one month following the accident; after
which she continued to have problems with cramping and continued
concerns of injury to the fetus and the possibility of going into
premature labor. Although Plaintiff Pomala Stone did eventually
give birth to a normal, health fetus, she maintains that she is
entitled to recover for the emotional distress, which she was
caused during the pregnancy until she was able to confirm that her
baby had not been injured in the accident. Plaintiff pomala Stone
is also entitled to recover for the pain and suffering which she
experienced as a result of the trauma to her abdomen and
3
. ,
response to the Rule was made by Defendant Salvatore A. Nicastro,
and Plaintiffs would seek sanction for the Defendant's failure to
respond to the discovery and the Court's Rule.
V. Identity of Witnesses
A. Plaintiffs Pomala and Eric Stone;
B. Corporal Stevt! Shaffer of the Silver spring Township
Police Department;
C. Dr. George Jefferies, via videotape deposition;
E. Defendant Salvatore A. Nicastro - as on cross-examination;
E. Mr. Curtis Fuller - as to damages.
VI. List of Exhibits
A. Photographs of the damage to the vehicles;
B. Photographs of the highway;
C. Diagram contained in the Police Accident Report;
D. Plaintife Pomala Stone's medical records;
E. A summary of uncompensated lost wages.
VII. Current Status of Settlement Neaotlations -
The Defendant's insurance company made an offer of $2,'000.00
prior to Plaintiffs seeking representation. This offer was
5
2. Ordinary care is the care a reasonably careful person
would use under the circumstances presented in this case. It is
the duty of every person to use ordinary care not only for his own
safety and the protection of his property, but also to avoid injury
to others. What constitutes ordinary care varies according to the
particular circumstances and conditions existing then and there.
The amount of care required by the law must be in keeping with the
degree of danger involved.
Pa. SSJI (Civ) 3.02; Maternia v. Pennsylvania R,R. Co., 358 Pa,
149, 56 A.2d 233 (1948); Pet ere v. Ph~ladelDhi4, 380 Pa, 581, 112
A.2d 100 (1955).
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4. A driver who crosses the center line ot a roadway and
collides into another vehicle i~~)to be negligent. Where
the Defendant is on the wrong side of the road at the time of
impact, the burden is on the Defendant to show how he got there
through no negligence of his own.
.lU:uDa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983) I
~orthv v. Burahart, 241 Pa. Super. 267, 361 A.2d 335 (1976), In
re Interbst of Hvduke, 371 Pa. Super. 380, 538 A.2d 66 (1988).
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6. The Pennsylvania Motor Vehicle Code a180 provides that
the operator of a motor vehicle on a public highway must have his
vehicle under conotant control.
Therefore, Defendant, as the
operator of a vehicle on a public highway was under a duty to keep
his 1987 Honda Accord under constant control and must not cut
acro~s the middle of the highway.
Sollinaer v. H~mchak, 402 ~a. 232, 166 A.2d 531 (1961), Denman v.
Rhodes, 206 Pa. Super. 457, 214 A.2d 274 (1965).
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7. An Act of Auembly of this commonwealth, in effect at the
time this accident occurred, provided in partl
Drivers of vehJ.clell proceeding in opposite
directions shall pass each other to the right and, up~n
roadways having width for not more than one line of
traffic in each direction, each driver shall give to the
other at. least one-half of the main-traveJ.ed portion of
the roadway as nearly as possible.
This Act dictates the duty of care required of someone in the
same situation as the Defendant.
If you find that there was a
violation of thi$ Act, you must find the Defendant negligent as a
matter of law.
However', before you answer the question of
Defendant's liability, you must determine whether this negligence
was a substantial factor in bringing about plaintiff's injury.
Pa. SSJI (Civ) 3.30; 75 Pa.C.S.A. S 3302.
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14. In civil cases such as this one, the Plaintiffs have the
burden of proving those contentions 'which entitle them to relief.
When a party has the burden of proof on a particular issue,
his contention on that issue must be established by a fair
preponderance of the evidence.
The evidence establishes a
contention by a fair preponderance of the evidence if you are
persuaded that it is more probably accurate and true than not.
To put it another way, think, if you will, of an ordinary
balance scale, wit'. a pan on each side. Onto one side of the
scale, place all of the evidence favorable to the Plaintiffs; onto
the other, place all of the evidence favorable to the Defendant.
If, after considering the comparable weight of the evidence, you
feel that the scales tip, ever so slightly or to the slightest
degree, in favor of the plaintiffs, your verdict must be for the
Plaintiffs. If the scales tip in favcir of the Defendant, or are
equally balanced, your verdict must be for the Defendant.
,
In this case, the Plaintiffs have the burden of proving the
following propositions: that the Defendant was negligent, and that
that negligence was a substantial factor in bringing about the
accident.
If, after considering all of the evidence, you feel
persuaded that these propositions are more probably true than not
cl/
18. The damages recoverable by the Plaintiffs in this case
and the items that go to make them up, eacp of which I will discuss
separately, are as follows I
(a) Past pain and suffering; ~
(b) Past lost earning's; -, ~~
(e) Loss of enjoyment of life; /'
Emotinnal distress; and ......
,~_: 1.os8 of consortium.
. ~.
tn the event that you find in favor of the Plaintiffs, you
~dd these sums of damage together and return your verdict in
a single, lump sum.
Pa. SSJI (Civ) 6.01; Schweael v. Goldbera, 209 Pa, Super. 280, 228
A.2d 405 (1967); Mack v. Johnson, 430 F. Supp. 1139 (E.D. Pa,
1977), aff'd, 582 F.2d 1275 (3d Cir. 1978); Reist v. Manwiller, 231
Pa. Super. 444, 332 A.2d 518 (1974).
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20. The Plaintiffs are entitled to he fairly and adequately
compensated for such physical pain, ment~l
inconvenience and distress as you find t
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time of the accident until today.
~
Pa. SSJI (Civ) 6.01E, Ni~derman v. BrodBkv, 436 Pa. 401, 261 A.2d
84 (1970), BoaaavaraDu v. PoniBt, 518 Pa, 162, 542 A.2d 516 (1988).
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21. In evaluating the amount to be awarded. for pain' and
suffering, you should consider that the infliction of pain means
taking from a person what is his/her own to possess and retain --
namely health and well-being -- and that the law allows for
compensation of this loss to the extent that loss may be calculated
in money damages.
Corcoran v. McNeal, 400 Pa. 14, 161 A.2d
Iannuzzi, 403 Pa. 329, 169 A.2d 777
Rockcraft Stone produc~s Co., 424 Pa. 77,
367 (1960); ThomDso~ v.
(1961) I piChiacchio v.
225 A.2d 913 (1967).
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22. . Plaintiff Pomala Stone is entitled to be fairly and
adequately c?mpensated for past, pwU_..L ~- -' L.wtW' 1088 of her
ability to enjoy any of the pleasures of life as a result of her
injuries.
Pa. SSJI (Civ) 6.01I1 Frankel v. UnIted States, 321 F. Supp. 1331
(E.D. Pa. 1970), aff'd, 466 F.2d 1226 (3d Cir. 1972) I Corcoran v.
McNeal, 400 Pa, 14, 161 A.2d 367 (1960) I Thomoson v. Iannuzzi, 403
Pa, 329, 169 A.2d 777 (1961) I DiChiacchio v. Rockcraft Stone
Products Co., 424 Pa. 7'1, 225 A.2d 913 (1967).
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23. The Plaintiff's 8pouse is entitled to be compen8ated for
the 108s of the inj~redparty's 8ervices to him and thelos8 of
companion8hip of his spouseT"~"" ~
Pa, SSJI (Civ) 6.01L; Hockins v. Blanco, 457 Pa, 90, 320 A.2d 139
(1974); Mueller v. Brandqn, 282 Pa, Super. 37, 422 A.2d 664 (1980);
Burns v. PeDsi~Cola MetroDolitan Bottlina Co., 353 Pa. Super. 571,
510 A.2d 810 (1986).
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POKALA STONE and
ERIC E. STONE, her husband,
plaintiffs
IN THE COURT OF COMMON PL~S
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SALVATORE A. NICASTRO,
Defendant
NO. 96-679
JURY TRIAL DEMANDED
PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER
AND NOW, Plaintiffs Pomala and Eric E. stone, by and throuqh
their attorneys, Anqino & Rovner, P.C., hereby respond to
Defendant's New Matter as follows:
22. Denied. This averment is a conclusion of law to which no
responsive pleadir.g is required. To the extent that a response may
be deemed proper, it is specifically denied that any portion of
plaintiffs' damaqes are limited ore reduced, in whole or in part,
by the application of the provisions of the Pennsylvania Motor
Vehicle Financial Responsibility Law, 75 Pa.C.S.A. 51701, ~ ~.
23. Denied. This averment is a mixed conclusion of fact and
law to which no reoponsive pleading is required. To the exter.t
that a response may be deemed proper, it is specif ically denied
that the accident, which resulted in Plaintiff Pomala Stone's
injuries, was unavoidable. To the contrary, it is averred that at
all times, Plaintiff Pomala stone had her vehicle under control and
was able to brinq her vehicle to a stop and pull it off the
92597/DKR
..
highway. The accident occurred, as etated in Plaintiffs'
Complaint, because of the excessive speed and negligent operation
of his vehicle by Defendant Salvatore A. Nicastro.
24. Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that any sudden
emergency existed or that the sudden emergency doctrine is
applicable to the Defendant. As stated in ~laintiffs' Complaint,
although there was snow on the highway, this was a static
condition, which cannot give rise to the sudden emergency doctrine.
Furthermore, Plaintiffs' vehicle was either approaching from the
opposite direction or was stopped at all timos that Defendant
Salvatore A. Nicastro proceeded up the highway. Therefore, the
doctrine of assured clear distance is inapplicable. As previously
stated in Plaintiffs' Complaint, the accident occurred as a result
of the negligence of the Defendant in failing to operate his
vehicle as a safe and appropriate speed and with responsible
diligence and attention to the traffic and highway conditions which
existed.
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WHEREFORE, Plaintiffs Pomala and Erie E. stone respectfully
request thi. Honorable Court to diomi.. Defendant's An.wer and New
Matter and enter judgment in their favor againet the Defendant
Salvatore A. Nicastro.
AHG~VN'" P.C.
. ';"..1 ~.ir'
I. D. No. 36513
4503 North Front street
Harrisburg, PA 17110-1799
(717) 238-6791
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Datedl_~ h/q"
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Counsel for Plaintiffs
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