TO ALL PARTIES: 

You are hereby notified to file a written response to the enclosed

Affirmative Defenses and Crossckaun within twenty (20) days from

service hereof or judgment may be entered against you.

 

Attorney for Defendant Verizon

DAVIS, PARRY, TYLER & WRIGHT

By: Christopher H. Wright, Esquire

Attorney I.D. No.: 27091

1525 Locust Street, 14th Floor

Philadelphia, PA 19102 Attorney for Defendant Verizon

(215) 732-3755

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHY L. OAKES : Civil Action No. 02-2749

:

vs. :

:

HENKELS AND McCOY, :

DANNELLA CONSTRUCTION CORP., :

LEVEL 3 COMMUNICATIONS, :

PECO ENERGY ENTERPRISE, :

EXELON COMMUNICATIONS, :

CITY OF PHILADELPHIA, :

COMMONWEALTH OF PENNSYLVANIA, :

 DEPARTMENT OF TRANSPORTATION, :

PHILADELPHIA GAS WORKS, :

CITY OF PHILADELPHIA WATER :

 AND SEWER DEPARTMENT :

 (Philadelphia Water), :

VERIZON (formerly known as Bell Atlantic), :

JOHN DOE 1-10, :

ABC PARTNERSHIP 1-10 and :

XYZ CORPORATION 1-10 : JURY TRIAL DEMANDED

ANSWER OF DEFENDANT, VERIZON (FORMERLY KNOWN

AS BELL ATLANTIC) TO PLAINTIFF’S COMPLAINT

1. Denied.

2. Denied.

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 1 of 17
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3. - 11, Inclusive. Denied. The allegations of these paragraphs are not directed to answering

Defendant and answering Defendant is therefore without sufficient information to admit or deny the

allegations contained therein. They are therefore denied and due proof demanded at time of trial.

12. Admitted.

13. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

14. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

15. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

16. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

17. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

18. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

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19. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

20. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

21. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

22. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

23. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

24. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

25. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

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26. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

27. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

28. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

29. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

30. Denied. At all times material to the allegations contained in Plaintiff’s Complaint,

Verizon was not engaged in construction, excavation, installation or resurfacing along Market Street

at or near its intersection with 19th Street in the City of Philadelphia and State of Pennsylvania.

31. Denied. To the contrary, at no time did Defendant Verizon have in its possession or

control Market Street at or near its intersection with 19th Street in the City of Philadelphia and State

of Pennsylvania.

32. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

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33. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

34. Denied. The allegations of this paragraph fail to identify the alleged agents, servants,

workmen, contractors, subcontractors and/or employees and therefore lack sufficient specificity for

Defendant to either admit or deny the allegations contained herein. Accordingly, Verizon denies all

allegations of this paragraph and further asserts that it did not have agents, servants, workmen or

contractors in or about the area of Market Street at its intersection with 19th Street on or about April

6, 2000. Accordingly, all allegations of this paragraph are denied. 

35. Denied. Verizon denies that it was careless, negligent or allowed a dangerous or

defective condition to exist on Market Street at or near its intersection with 19th Street on or about

April 6, 2000. Verizon further denies that it caused or contributed to injuries allegedly suffered by

Plaintiff. Accordingly, all allegations of this paragraph are denied. 

36. Denied.

37. Denied. Verizon had no duty or responsibility for maintenance, repair, or inspection

of Market Street at or near its intersection with 19th Street. Accordingly, all allegations of this

paragraph are denied. 

38. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial.

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 5 of 17
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39. Denied. Verizon specifically denies that it was negligent or caused or in any way

contributed to injuries allegedly suffered by Plaintiff. Accordingly, all allegations of this paragraph

are denied.

FIRST COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, Henkels and McCoy

40. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

41. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

42. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial.

43. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial.

44. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial.

45. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial.

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46. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

SECOND COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, Dannelia Construction

47. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

48. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

49. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability as alleged and demands judgment in its

favor.

THIRD COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, Level 3

50. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

51. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 7 of 17
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52. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

FOURTH COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, PECO Energy

53. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

54. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

55. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

FIFTH COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, Exelon

56. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

57. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

58. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

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WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

SIXTH COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, PGW

59. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

60. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

61. Verizon hereby incorporates its answers to paragraphs 41, 42, 43, 44, 45 and 46 of

First Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

SEVENTH COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, Philadelphia Water

62. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

63. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

64. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 9 of 17
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EIGHTH COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, Verizon

65. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

66. Denied. Verizon denies that it was negligent or that its agents, servants or workmen

were negligent. Verizon did not perform, nor did it hire contractors or subcontractors to perform

excavation, construction or repair in or about Market Street at or near its intersection with 19th Street

on or about April 6, 2000. Verizon therefore had no duty to inspect, warn or maintain the area in or

about Market Street at or near its intersection with 19th Street. Accordingly, all allegations of this

paragraph are denied including subparagraphs (a) through (i) inclusive.

67. Verizon hereby incorporates its answers to paragraphs 41, 42, 43, 44, 45 and 46 of

First Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability as alleged and demands judgment in its

favor.

NINTH COUNT

68. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

69. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

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70. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

71. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

TENTH COUNT

Plaintiff, Kathy L. Oakes vs. City of Philadelphia

72. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

73. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

73. (sic) Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of

First Count as though fully set forth herein at length.

74. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial. 

75. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial. 

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76. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial. 

77. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial. 

78. Denied. After reasonable investigation, answering Defendant is without sufficient

information or knowledge to either admit or deny the allegations of this paragraph. They are

therefore denied and due proof demanded at time of trial. 

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

ELEVENTH COUNT

Plaintiff, Kathy L. Oakes vs. Defendant, PENNDOT

79. Verizon hereby incorporates its answers to paragraphs 1 through 39 as though fully

set forth herein at length.

80. Denied. The allegations of this paragraph are not directed to answering Defendant

and answering Defendant is therefore without sufficient information to admit or deny the allegations

contained herein. They are therefore denied and due proof demanded at time of trial.

81. Verizon hereby incorporates its answers to paragraphs 42, 43, 44, 45 and 46 of First

Count as though fully set forth herein at length.

82. Verizon hereby incorporates its answers to paragraphs 73, 74, 75, 76, 77 and 78 as

though fully set forth herein at length.

WHEREFORE, Verizon denies any and all liability and demands judgment in its favor.

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TWELFTH COUNT

83. Verizon hereby incorporates its answers to the allegations contained in the First,

Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Counts of Plaintiff’s

Complaint as though fully set forth herein at length. 

WHEREFORE, Verizon denies any and all liability as alleged and requests judgment in its

favor.

FIRST AFFIRMATIVE DEFENSE

The Complaint is barred by the statute of limitations.

SECOND AFFIRMATIVE DEFENSE

Plaintiff has waived her right to make a claim for damages against Verizon.

THIRD AFFIRMATIVE DEFENSE

The Complaint is barred and/or limited by the doctrine of accord and satisfaction.

FOURTH AFFIRMATIVE DEFENSE

The Complaint is barred by the doctrine of equitable estoppel.

FIFTH AFFIRMATIVE DEFENSE

The Complaint is barred from litigation in that the Complaint fails to state a cause of action

upon which relief can be granted.

SIXTH AFFIRMATIVE DEFENSE

Defendant Verizon has breached no duty owed, either implied or expressed, to the Plaintiff.

SEVENTH AFFIRMATIVE DEFENSE

The claims asserted by the Plaintiff are barred or otherwise limited by the negligence of the

Plaintiff pursuant to the provisions of the Pennsylvania Comparative Negligence Act.

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EIGHTH AFFIRMATIVE DEFENSE

Any and all injuries or damages alleged to have been suffered by the Plaintiff were caused

by the negligence of independent intervening parties or instrumentalities over which the Defendant

had no control or duty to control.

NINTH AFFIRMATIVE DEFENSE

The Complaint is barred because of ineffective service or process.

TENTH AFFIRMATIVE DEFENSE

The damages, if any, sustained by the Plaintiff are subject to diminution pursuant to the

applicable collateral source rule and/or statutes.

ELEVENTH AFFIRMATIVE DEFENSE

Claims of Plaintiff are barred and/or limited by Plaintiff’s assumption of the risk.

CROSSCLAIM

1. The allegations contained in Plaintiff's Complaint directed to Defendants, Henkels

and McCoy, Dannella Construction Corporation, Level 3 Communications, PECO Energy

Enterprise, Exelon Communications, City of Philadelphia, Commonwealth of Pennsylvania,

Department of Transportation, Philadelphia Gas Works, City of Philadelphia Water and Sewer

Department (Philadelphia Water), John Doe 1-10, ABC Partnership 1-10 and XYG Corporation 1-

10, are hereby incorporated by reference without admission or adoption. 

2. In the event that answering Defendant, Verizon, is found liable to Plaintiff or liable

over to Defendants, Henkels and McCoy, Dannella Construction Corporation, Level 3

Communications, PECO Energy Enterprise, Exelon Communications, City of Philadelphia,

Commonwealth of Pennsylvania, Department of Transportation, Philadelphia Gas Works, City of

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 14 of 17
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Philadelphia Water and Sewer Department (Philadelphia Water), John Doe 1-10, ABC Partnership

1-10 and XYG Corporation 1-10, which liability is expressly denied, Defendants, Henkels and

McCoy, Dannella Construction Corporation, Level 3 Communications, PECO Energy Enterprise,

Exelon Communications, City of Philadelphia, Commonwealth of Pennsylvania, Department of

Transportation, Philadelphia Gas Works, City of Philadelphia Water and Sewer Department

(Philadelphia Water), John Doe 1-10, ABC Partnership 1-10 and XYG Corporation 1-10, are solely

liable, primarily liable or jointly and severally liable to the Plaintiff or liable over to answering

Defendant for contribution and indemnity. 

WHEREFORE, Verizon declares that Defendants, Henkels and McCoy, Dannella

Construction Corporation, Level 3 Communications, PECO Energy Enterprise, Exelon

Communications, City of Philadelphia, Commonwealth of Pennsylvania, Department of

Transportation, Philadelphia Gas Works, City of Philadelphia Water and Sewer Department

(Philadelphia Water), John Doe 1-10, ABC Partnership 1-10 and XYG Corporation 1-10, are solely

liable or liable over to answering Defendant by way of contribution and/or indemnity for all sums

that may be recovered by the Plaintiff against answering Defendant; and any and all liability on the

part of answering Defendant is specifically denied.

DAVIS, PARRY, TYLER & WRIGHT

By:________________________________________

 CHRISTOPHER H. WRIGHT, ESQUIRE

 Attorney for Defendant, Verizon

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 15 of 17
CERTIFICATE OF SERVICE

I, Christopher H. Wright, Esquire, hereby certify that a true and correct copy of the

foregoing Answer, Affirmative Defenses and Crossclaim of Verizon (formerly known as Bell

Atlantic) to Plaintiff’s Complaint was served on the following counsel of record and unrepresented

parties by first class U.S. mail, postage prepaid:

Dennis E. Block, Esquire Attorney for Plaintiff 

Block & Gatusso

Washington Professional Campus

900 Route 168, Suite H1

Turnersville, NJ 08012

Andrew L. Salvatore, Esquire Attorney for Henkels & McCoy

Kelly, McLaughlin, Foster, Bracaglia,

 Daly, Trabucco & White

1617 J. F. Kennedy Blvd., Suite 1690

Philadelphia, PA 19103-1815

Robert C. Mickle, Jr., Esquire Attorney for Danella Construction Co.

Kennedy, Walker & Lipski & Level 3 Communications

1818 Market Street, Suite 2510

Philadelphia, PA 19103

Conrad O. Kattner, Esquire Attorney for PECO Energy Company

PECO Energy Co. Legal Department / Exelon Communications

2301 Market Street, P.O. Box 8699

Philadelphia, PA 19101-8699

Eric J. Riso, Esquire Attorney for City of Philadelphia 

Zeller & Bryant

Woodcrest Pavilion

Ten Melrose Avenue, Suite 400

Cherry Hill, NJ 08003

John O.J. Shellenberger, Esquire Attorney for Pennsylvania Department

Office of Attorney General of Transportation

21 S. 12th Street, 3rd Floor

Philadelphia, PA 19107-3603

Case 2:02-cv-02749-EL Document 14 Filed 07/09/2002 Page 16 of 17
Colette A. Pete, Esquire Attorney for Philadelphia Gas Works

Philadelphia Gas Works

800 W. Montgomery Avenue

Philadelphia, PA 19122

DAVIS, PARRY, TYLER & WRIGHT

By:___________________________________

 CHRISTOPHER H. WRIGHT, ESQUIRE

 Attorney for Defendant, Verizon 

Date: November 20, 2002

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