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HomeMy WebLinkAbout96-05440 "~ ~ 't ( l ." ~ .-tr '-)::..-. '-'., "~\ /,,/ i , : ! 1 ! ! ~, ~ JANET and PETER KAUTZ, Her Husband, Plaintiffs . . . . . . IN THE COURT OF COMMON PLEAS ctlMBERLAND COUNTY, PENNSYLVANIA v. . . . . . . : CIVIL ACTION - LAW NO. </{. - ";"'/'10 6.~,J 7A.U~ ZVI and SHIRLEY FRIEDMAN, Husband and Wife, and JACK GAUGHEN INC., t/d/b/a JACK GAUGHEN REALTOR and JACK GAUGHEN PROPERTY MANAGEMENT, and BETTY FITZPATRICK, Defendants . . . . . . . . . . . . . . JURY TRIAL DEMANDED COMPLAIR'l' 1. Plaintiffs Janet and Peter Kautz are adult individuals, and citizens of the Commonwealth of Pennsylvania, who reside at 533 Good Hope Road, Mechanicsburg, Hampden Township, CUllberland County, Pennsylvania, 17055. 2. Defendants Zvi and Shirley Friedman are adult individuals, and citizens ot the state of Texas, who reside at 10902 Paulwood Drive, Houston, Texas, 77071, and are the owners ot an apartment buildinq located at 5029 Eaat Trindle Road, Mechanicaburg, CUmberland County, Pennsylvania 17055. 3. Detendant Jack Gaughen, Inc. 18 . Penn.ylvania corporation, which regularly conduct. busines. in CUmberland County, Pennsylvania and trade. and doe. bu.ine.. as Jack Gaughen Realtor and Jack Gaughen Property Manaqeaent, all with principal t6U'/LM otfices at 3805 Market street, Camp Hill, cumberland, county, Pennsylvania. 4. Defendant Betty Fitzpatrick is an adult individual and citizen of the Commonwealth of Pennsylvania, who at all times relevant herein, was acting as an employee, and/or servant for Defendant Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management and whose principal place ot business was located at 3805 Market street, Camp Hill, CUmberland county, Pennsylvania. 5. At all times relevant herein, Defendant Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management and Detendant Betty Fitzpatrick were responsible tor performing property management, including the maintenance, management, and safety of Oetendant Friedman's rental property at 5079 East Trindle Road, Mechanicsburg, CUmberland County, Pennsylvania. 6. At all times relevant herein, Detendant Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughan Property Manag..ent and Detendant Setty Fitapetriclt were acting a. agents, servants and IlIIploye.. ot Detendanta Ivi and Shirley Friedman. 7. The tacts and occurrence. hereinafter related took place on or about the atternoon of Septeaber 27. 19t!, on the top landing 2 ot the primary entrance/exit stairs for the apartment building, located at 5029 East Trindle Road, Mechanicsburg. 8. At that time and place, Plaintiff Janet Kautz was leaving the building after visiting her daughter's apartment. 9. The top landing, located just outside the doorway to the apartment building, had a large crack, and the concrete was in a deteriorated condition. 10. As Plaintift Janet Kautz stepped onto the top landing to the leave the building, the concrete landing gave way, and the landing collapsed. 11. At that time and place, Plaintiff Janet Kautz fell approximately eight (8) feet through the landing into the center ot the foundation and was trapped beneath the masse. of concrete slabs trom the landing. 12. As a business invitee, Plaintift Janet Kautz was owed the highest duty of care by Defendants to keep and maintain the premises in a sate condition for the benefit of business invitees. 13. Plaintiff Janet !tauta had no reason to suspect that Defendants would allow the top landing ot the rental property to be in a condition that was unsafe tor tenants and visitor. to walk, causing her to tall through the concrete landing. 14 . The concrete landing had been in a deteriorated condi Uon for a lonq period of tiN and had previou.ly been patched. 3 15. The deteriorated condition of the concrete landing had accelerated from the time of the preceding winter, which fact was known by the Defendants based upon a personal inspection several months prior to the accident. 16. Defendant Betty Fitzpatrick, an employee of Defendant Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management, and agent/servant and/or employee of Defendants Zvi and Shirley Friedman, had also been advised of the condition of the landing several days prior to this incident by tenants residing at the property. Count I Janet Kautz v. Zvi and Shirlev Friedman 17. paragraphs 1 through 15 of this Complaint are incorporated herein by reference. 18. The atore.entioned fall and resultinq injuries were caused by Defendant. Zvi and Shirley Friedmans' wanton, carele.., reckles., and negligent failure to properly in.pect and maintain th.ir rental property as follows: (a) railing to properly maintain the at.ps and landinq and .urroundinq. in a safe mannsr and for their rsa.onably tore.e..bl. uae, 4 Failing to properly inspect the apartment building, including the entrance steps and landing, for which they had control and responsibility to determine whether conditions existed which would pose a hazard to persons using the premises; Failing to take proper measures to eliminate hazards to business invitees of which it was aware or should have known existed in the building; (d) Failing to properly warn invitees of the hazardous conditions which existed on the landing; (b) (c) (e) Failing to take proper measures to eliminate hazards to business invitees of which it was aware or should have known existed in the building; (f) Maintaining a dangerous condition of its property, over which it had ownership, possession, care, custody, and control; (9) Failing to exerciae the high degree of care which a property owner owes to business invitees who enter upon the land tor a purpose which it i. held open to the public. (h) Hiring and retaining a rental/property management cOap&ny whoa they were aware or should have been aware vas not competent and qualitied to properly maintain, manage and inspect the rental property; (i) railing to properly rental company's credential.; investiqate reputation the and COunt II Jan.t x_uta v. Jack Cauahen Inc.. t/d/bJ. Jack Cauah.n Realtor and Jack Cauah.n Pro~rty Mahaa...ftt and ..t~v pi~zDa~rick 1 t. 'araCJraph. 1 through 17 of this COIIple1nt are incorporated herein by reference. ! I , ; 20. The aforementioned tall and resulting injuries were caused by Defendant Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management's and Defendant Betty FitzpatriCk's wanton, careless, reckless, and neqligent failure to properly inspect and maintain the apartment buildinq at 5029 East Trindle Road as follows: (a) Failing to properly maintain the building and landinq in a safe manner; (b) Failing to inspect the apartment building, including the main entrance steps and landing, for which they had control and responsibility to determine whether condition. existed which would pose a hazard to persons using the premise.; (c) Failing to properly warn invitee. of the hazardous conditions which existed on the landing; (d) Failing to take proper measures to eliminate haaards to business invit.es of which it was aware or should have known existed in the building; e.) Maintaining a dang.rous condition ot it. property, over which it had poss.s.ion, care, custody, and control; (f) railing to ex.rcise the hi;h degree of car. which, a. ag.nt. of the property owner, it owes to busin.s. invit... who enter upon the land tor a purpose which it 1. held open to the public; (g) Hiring and retaining an uployee who it va. aware or should have been aware was not competent and qualified to manave and maintain the PropertY1 (h) railing to properly train, .upervi.e its eaployee.; in.tnJct and 6 (i) Failing to respond to several complaints made about the unsafe conditions which existed on the property. Claim I Janet Kautz v. Zvi and Shirlev Friedman. Jack Gauqhen Inc.. t/d/b/a Jack Gauqhen Realtor and Jack Gauqhen PrODertv Manaqement and Bettv FitzDatrick 21. Paragraphs 1 through 19 of this complaint are incorporated herein by reference. 22. As a direct result of this incident, Plaintiff Janet Kautz sustained painful and serious injuries, including, but not limited to, closed calcaneus fracture, fractured vertebrae, and multiple contusions and abrasions. 23. By reason of the aforementioned injuries sustained by Plaintiff Janet Kautz, 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 i. made therefor. 24. Because of the nature ot her injuries, Plaintiff Janet Xautz has been advised and, theretore, aver. that she may be forced to incur similar expenses in the tuture, and claim 18 made theretor. 25. As a re.ult of the aforementioned injurie., Plalntitt Janet Kautl has undergone and in the future will continue to 7 undergo great physical and mental SUffering, and great inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 26. As a result of the aforementioned injuries, Plaintiff Janet Kautz has been and in the future will be subject to great humiliation and embarrassment, and claim is made therefor. 27. Plaintiff Janet Kautz continues to be plagued by persistent pain and limitation and, therefore, avers that injuries may be of a permanent nature, causing residual problems for the remainder of her lifetime, and clai. is .ads therefor. WHEREFORE, Plaintiffs Janet Xautz and Peter Kautz demand judgment against Defendants Zvi and Shirley Friedman, Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management and Betty Fitzpatrick in an amount in excess ot Twenty- Five Thousand ($25,000.00) Dollars, exclusive ot interest and costs and in exc... of any jurisdictional amount requirinq compulsory arbitration. Claia II Pet.r X_uta Y. Iv! and Shlrl.v rri.d.An. Jack Cauahan Ine.. t/d/b/. Jack cauah.n ..altor and Jaek C.,mh.n Praaertv Manaa...nt and Battv pit.Da~ick 21. Paragraph. 1 through 26 Of this CoIIplalnt are incorporated herein by reference. 1 29. As a result of the aforementioned injuries sustained by his wife, Plaintiff Janet Kautz, Plaintiff Peter Kautz 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, Plaintiffs Janet Kautz and Peter Xautz demand judgment against Defendants Zvi and Shirley Friedman, Jack Gauqhen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management and Betty Fitzpatrick in an amount in excess of Twenty- Five Thousand ($25,000.00) Dollars, exclusive of interest and costs and in excess of any jurisdictional amount requirinq compulsory arbitration. Clab III Peter !tautz v. Zvi and Shirlev Friedman. Jack Gauah.ft. Inc.. t/dJb/a Jack Gauahen Realtor and Jack Gauahen Pr~nertv Manaa..ant and Bettv FitzDatrick Punitive Damaaes 30. Paragraphs 1 through 29 of th18 Complaint are incorporated herein by reterence. 31. At the ti.. ot the accident, Defendants had knowledge ot the unsafe condition ot the top landinq to the apart:aent building, far acre than sufficient ti_ to varn invitees or to perform repairs. t 32. Defendants' conduct in maintaining the apartment building and in failing to assure the safety of its invitees constitutes outrageous and willful conduct, and evidences a reckless indifference to the risks to others and warrants punitive damages. WHEREFORE, Plaintiffs Janet Kautz and Peter Kautz demand judgment aqainst Defendants Zvi and Shirley Friedman, Jack Gaughen Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management and Betty Fitzpatrick in an amount in excess of Twenty- Five Thousand ($25,000.00) Dollars, exclusive of interest and costs and in excess ot any jurisdictional amount requirinq compulsory arbitration. Counsel tor Plaintiffs Dated: I(!JI Jq" I I . " , ~ . J i.,._,.. \ i t:r!'~~; iN"'t /\1 i !;~' "~f; ,'!r."';"\!~,.. I jl'rN i) ,t" l_~;MP~";-' .l\UU f\ tIll! .r Al~! T 1-: .' '., '; !'l ~\LL "<'; ;{i',!-. '," FA :.~ h : f:' " ',":\' h..:' ,r l f of 'u:'!rcr,i~AN:' ( . .. ..." '~ } , FE'n r. 8~~' I \':~ ~':..t ~i. 'to'. . iL . c :'a\r',. ;-:.-;;y;;;. t_ hoii' wIth .' ....",'j :,e! 1:- \.1; , ,o.c,r,__CA',,<'.'., /', ~; ~';-, .~. ~ S i "l"j r", t 3.~ " -.... : ,~"~) ~. ;,. (A l'-~ ~._. ". .~ -"11 ,,~ :- " ~'. .. (. : ~i, " : ~:, i!'.... ,~, ;,~; t ~. .~ .' _:' . -~ ~ . .. :. ~. ,~ j' ;ii~"":' t_ \ ~.', " , ~ :j -T"""..::,>;iJ.r::;.,ut> ~; /~..~/' .-." ,",' ~ A<__~1f'~~ ,1,.: ' ,:s; ".....j;. {~ r; i ~ 64A'"~} " "r " tt' 1"'/ / ;f4~.C['!" t.'; " : ' , '/II( oJ (r~ (f {1ft ~" ;.IJ,"",V '0' JANET and PETER KAUTZ, IN THE COURT OF COMMON PLEAS Her Husband, . ctlMBERLAND COUNTY, PENNSYLVANIA . Plaintiffs . . . . v. . CIVIL ACTION - LAW . I ZVI and SHIRLEY FRIEDMAN, . NO. 96-5440 CIVIL . Husband and Wife, and . . JACK GAUGHEN INC., t/d/b/a . . JACK GAUGHEN REALTOR and JACK GAUGHEN . . PROPERTY MANAGEMENT, and . . BETTY FITZPATRICK, . . Defendants . JURY TRIAL DEMANDED . AFrIDAVI'l' or 8BRVICB This is to certify that on the 4th day of october, 1996, a true and correct copy ot the COIIPLAIB'l', No. 96-5440 civil, was mailed to Defendant. Zvi and Shirley Friedman, via Certified Mail, Return Receipt Requested, at 10902 Paulwood Drive, Houston, Texas 77071. A copy ot the certified mail receipt No. P 170 667 262 is attached hereto. .0 pvna 71"re/YJ' ~ ' Donna M. Rineer AFl'IDAVI'l' or 8BRVICB Thi. i. to c.rtify that on the 9th day of October, 1996, a true and corr.ct copy of the above-noted COIIPLAIB'l' was .erved upon Defendant. Zvi and Shirl.y Friedman, via Certified Mail, Return Receipt Requested, at the abov.-not.d addr..s. A copy of the .igned return receipt No. P 170 667 262 i. attached hereto. IJtmJ'ha -m ~.l-" Donna M. Rineer SWorn to and subscribed before me this ~ day of ~, 1996. M:lWW IW ....~.~/-,N'" II>.. ~ ~ r...." ,,, ... ( h', '.... ...... II. ,"" . " ~ Ol C M ,,< ~ .. '.,~ ~~ J-' ~..4; ..... -'~ Co. :,~ tn './) ,~: N lZ ~. -, ff' .... ~'U1 <-"Ie ' <;~). t-: 0 .".;~ h. .." :::l 0 Ol U . CERTIFICATE OF-.SERVICE 1 I. Debra L Specht. hereby conify Ihat an this ;'0 f! day at tl'-t. /l.-k:u)...-/. 1996. a true and correct copy of the foregoing Entry of Appearance was served upon the following portles listed below at the addresses shown below. by United States Frst Class Mail. Postage Prepaid. Counsel for Plaintiffs Michael E. Kosik. Esquire Angino & Rovner. P.C. 4503 North Front Street Harrisburg. P A 1711 0-1799 By: /kL L 'LA., ~: Jfl~'U:- Debra L Specht. legal Secretary Uncoln General Insurance Company 3&) Whiteford Road York, PA 17402 Telephone: (717) 757..fXXXJ WEH/ltllI CertSeN .w&l ::>- 1'"'- ~,: It: ...- w::-- (;; .; ...:,: <.)':' ;.,. H: , ~ ,- .. .~ L;' ~j . , C' ,.J '::4 l_. , (', l~ i. - -- ~. , .' ,. ,., '-. C' . . AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE 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 Dated: --1./1.IJ1.-- Counsel for Plaintitfs CERTIFICATE OF SERVICE I, Donna M. Rineer, an employee of the law firm of Angino & Rovner, P,C., do hereby certify that I am this day serving a true and correct copy of the foregoing IMPORTANT NOTICE OF PRAECIPB TO BNTBR JODGMBNT BY DBFAULT upon all Defendants and interested parties, via postage pre-paid, first class United States mail, addressed as follows: SBHT VIA C"RR'I'tFIBD MAIL. RETURN RECEIPT REOOBSTED Defendants Zvi and Shirley Friedman 10902 Paulwood Drive Houston. Texas 77071 Defendant Jack Gaughen, Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen Property Management 3805 Market Street Camp Hill, PA 17011 Defendant Betty Fitzpatrick c/o Jack Gaughen Property Management 3805 Market Street Camp Hill, PA 17011 SBHT VIA REGULAIl. nIL Sandra L. Ykema, Esquire c/o Lincoln General Insurance Company 3350 Whiteford Road P. O. Box 3709 York. PA 17402-0136 (Counsel for Defendants) ~Q flt::..? J,')U.i.t , Oonna M. Rineer Dated:~M '7, /qq1 .... C'I i'-:; ("~ ~ .' ':; ..- l'5\') co: ';} ~t- . ~.", }1, ' Li: .".... C' ,~ ",'.: ~-d .' . u,' a. } UJ;.,. I . .~.... ~~. .., !t~_ . ' ;.. t.) r w.. ~):l -, . l;_ ... r- ~) .... U" U . '. . .., ..-..... .- JANET KAUTZ and PETER KAUTZ, her husband. IN THE COURT OF COMMON PLEAS, CUMBERLAND CO., PENNSYLVANIA Plaintiffs, v. CIVIL ACTION - LAW ZVI and SHIRLEY FRIEDMAN, husband and wife, and JACK GAUGHEN, INC., tJdlbla JACK GAUGHEN REALTOR and JACK GAUGHEN PROPERTY MANAGEMENT, and BETTY FITZPATRICK, NO. 96-5440 Defendants. : NonCE You have been sued in court. If YOU wish to defend aaainst the claims set forth in the followina oaaes. YOU must take action within twenty (20) days after this Answer with New Matter and Notice are served. by enterina a written aooearance oersonally or by attorney and filina in writina with the court your defenses or obiections to the claims set forth aaainst you, You are wamed that if you fail to do so the case may oroceed without you and a iudament may be entered 80einst YOU by the court without further notice for any money claimed in the comoleint or for any other claim or relief reauested by the Dleintiff. You mav lose money or orooertv or other riahts imoortant to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR nLEPHO~e THE OFFICE SET fORTH BELOW TO FIND OUT WHE6E YOU CAN GET LEGAL HELP, COURT ADMINISTRATOR 4TH FLOOR. CUMBERlAND COUNTY COURTHOUSE CARLISLE. PENNSYLVANIA 17013 (717) 240-&200 NOTlCIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demand as expuestas en las paginas siguientes, usted tiene viente 1201 dias de plaza al partir de la fecha de la demand a y la Notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE EST A DEMANDA A UN ABODAGO IMMEDIA T AMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME FOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVENIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL COURT ADMINISTRATOR 4TH FLOOR, CUMBERLAND COUNTY COURTHOUSE CARUSLE. PENNSYLVANIA 17013 (717) 240-6200 ~~~ Sandra L. Ykema, Esquire - Supreme Court 1.0. 146746 3350 Whiteford Road Yorlt. PA 17402 (717) 757..()OQ() 4. Admitted. S. Admitted in part and denied in part. Admitted that the Gaughen Parties were responsible for property management, including maintenance management and safety, at the Friedman's Mechanicsburg rental property insofar as specified by the terms of the Management Agreement entered into between the Friedmans and the Gaughen Parties. 6. Admitted. 7. Denied. Pursuant to Pa. R. Civ. P. 1029(e), the averments in this paragraph are denied generally. 8. Denied. Pursuant to Pa. R. Civ. P. 1029(e), the averments in this paragraph are denied generally. 9. Denied. Pursuant to Pa. R. Civ. P. 1029(e), the averments in this paragraph are denied generally. 10. Denied. Pursuant to Pa. R. Civ. P. 1029(e). the averments in this paragraph are denied generally. II Denied. Pursuant to Pa R. Civ. P. 1029(e), the averments in this paragraph are denied generally. 12 Denied. The inti IIICdtS in this paragraph COIISlitute conclusions of law to which no mpol11C is RqUired, and they are therefore deemed denied. To the ment the a\tJ..-u coastitute a\tJlilelltS offact. they are denied generaI1y punuant to Pa R. eiv P 1029(e) I) Denied The a,...l\~1Il1 in tills pvaaraph coastitute condusiona of law to which no ItllpClftIC is requind. and they are thaefOfe ~Iled denied To the atent the Intl4~ COIISlitute a.......oM~ oflict,..., are denied ~ punuant to Pa Il Clv P 10000e) 14. Denied. Pursuant to Pa. R. Civ. P. I029(e), the avennents in this paragraph are denied generally. IS. Denied. Pursuant to Pa. R. Civ. P. I029(e). the avennents in this paragraph are denied generally. 16. Admitted in part and denied in part. Admitted that Betly Fitzpatrick was and employee of Jack Gaughen Inc., tldlb/a Jack Gaughen Realtor and jack Gaughen Property Management, and an agent, servant or employee of the Friedmans. The remaining averments in this paragraph are denied generally pursuant to Pa. R. Civ. P. I029(e). COUNT I - v. the Friedmans 17. Paragraphs I through 16 above are incorporated herein by reference. 18. (a) - (i). Denied. Pursuant to Pa. R. Civ. P. I029(e). the averments in this paragraph and all subparagraphs thereof are denied generally. WHEREFORE, defendants Mr. and Mrs. Friedman request judgment in their favor and against plaintiffs, and such other relief as is just and proper. COVN1:U - v. 1M Ganltm "rtl,a 19 PaJ'IiRPhs 1 through II above are incorporated herein by reference 20 (a). (i) Denied Pursuant to PI. R Civ. P 1029(e), the a\-UmeGtlI in this parapph and aD SIIbparqraphs thereof are denied genaaDy WHEIlEFORE, the defendant GauaIlcn Partia request ;"'''>1111 in their hv ud .~i.. pIaintifti, and IUdl other relief as is just and proper .... -...... - ~LAIM 1- v. aU.J!,rendants 21. Paragraphs I through 20 above are incorporated herein by reference. 22. Denied. The averments in this paragraph constitute conclusions of law to which no response is required. and they are therefore deemed denied. To the extent the averments constitute averments of fact, they are denied generally pursuant to Pa. R. Civ. P. 1029(e). 23. Denied. The averments in this paragraph constitute conclusions of law to which no response is required. and they are therefore deemed denied. To the extent the averments constitute averments of fact, they are denied generally pursuant to Pa. R. Civ. P. 1029(e). 24. Denied. The averments in this paragraph constitute conclusions of law to which no response is required. and they are thecefoce deemed denied. To the extent the averments constitute averments of fact, tbey are denied generaDy pursuant to Pa. R. Civ. P. 10000e) 2S. Denied. The a1rcnneals in this paragraph constitute condusiolls of law to which no responIe is requited. and they are tha-efcxe deemed denied. To the extent the a1rttd*llJ constitute 1l1r~...-u of fllct. they are denied pnmIly pursuIIII to Pa. R. Civ. P 1029(e) 26. Denied. The l1rermeots in chis parajp'IpI\ constitute conclusions of law to whidl no lapontC is requimI. and they are cllettbt ~ denied To the ext_ the I1rtel. ,.. ~ I1rwo_.tl of fad. they are denied ~ punuIIIt to Pa R Civ P I~.) 27. Denied. Pursuant to Pa. R. Civ. p, 1029(e), the avennents in this paragraph are denied generally. WHEREFORE, defendants Mr. and Mrs. Friedman and the Gaughen Parties request judgment in their favor and against plaintiffs, and such other relief as is just and proper. ~~IM II. v. all defendants 28. Paragraphs I through 27 above are incorporated herein by reference. 29. Denied. The averments in this paragraph constitute conclusions of law to which no response is required, and they are therefore deemed denied. To the extent the averments constitute averments of fact, they are denied genera1ly pursuant to Pa. R Civ. P. 1029(e). WHEREFORE, defendants Mr. and Mn. Friedman and the Gaughen Parties request judgment in their Dvor and against plaintiffs, and such other reiief u is just and proper. ~IM III. Y. aD ..,rnadaBtl 30 PafIarapbs 1 throuJll 29 above are PICOt ponied bertJn by ,.,:.dlOt 31. Oll..d The ....mew in tills paraarapII ~ ~ of... to wIlich DO 'ap~ 11 is ttqUircd. &ad they are tht.e&.c .k~ daIie4 To the atilt the a_H I fl. <'*'_ 1\_ liltS of fict. &My are.... ......., JllM"IUIIll to Pa It Qy P 10000t) .... -...... '- 32. Denied. The averments in this paragraph constitute conclusions of law to which no response is required. and they are therefore deemed denied. To the extent the averments constitute averments of fact. they are denied generally pursuant to Pa. R. Civ. P. 1029(e). WHEREFORE. defendants Mr. and Mrs. Friedman and the Gaughen Parties request judgment in their favor and against plaintiffs. and such other relief as is just and proper. NEW MATTER 19. Plaintiffs' claims are barred and/or limited by the provisions of the Pennsylvania Comparative Negligence Act. 20. Plaintiffs' claims are barred and/or limited by the doctrine of usumption of the risk. 21. Plaintiffs were injured, if at a1~ in whole or in pan by their own negligence, cardessness and/or recklessness. 22 Plaintifl's were injured. if at all, in whole or in pan by the neglipnce, careIasness and/or recklessness 0( penoIlI and/or entities other than Mr. and Mn Friedman and the Gauahm Parties, CMr wbom Mr and Mn Friedman and the <Jauahen Panies aen:ited no coatroI andIor riaht 0( coatroI f': O' - C . l.rC u/ r~ u. f(' .. ... , c:.', i c' ~:' ~ \." . , " . -I~ (,.' . ~ , , r- , u c- o.> . JANET and PBTBR KAUTZ, Her Husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBBRLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 96-5440 CIVIL ZVI and SHIRLBY FRIEDMAN, Husband and Wife, and JACK GAUGHEN INC., t/d/b/a JACK GAUGHBN REALTOR and JACK GAUGHEN PROPBRTY MANAGEMENT, and BETTY FITZPATRICK, Defendants JURY TRIAL DEMANDED ~Wf'~TO ~fiS~~ DD"IOI ;;~ "';i ji, 'JA T~ftainI';;;'~:~ ,::;X ~nmnM. ~. ~ ~ DOBER ..u,'f01l AND JAClt (D' P ~ AND BI PITZPA'l'RXClt Plaintiffs Janet and Peter Kautz, by and through t.heir attorneys, Angina ~ Rovner, P,C.. respectfully move this Honorable Court to compel Defendants zvi and Shirley Friedman, Jack Gaughen. Inc., t/d/b/a Jack Gaughen Realtor and Jack Gaughen property Management. and Betty Fitzpatrick to file full and complete Answers to Plaintiffs' discovery requests for the following reasons: 1. The instant action vas c()ll'lllended by the filing of a complaint on october 1. 1996. :2. To date. Defendants have not filed a verified Answer to the complaint. IOU st{llMll 3. On December 23, 1996, Plaintiffs forwarded to Detendants Interrogatories and Request for Production of Documents. 4. On January 7, 1997, Plaintiffs filed a Notice of Default in CUmberland County Court of Common Pleas as to all Defendants, given their failure to respond to the Complaint. 5. On January 14, 1997, Plaintiffs' counsel wrote to Defendants' counsel that Plaintiffs would not authorize any time extension to respond to the Interrogatories and Request for Production of Documents. 6. On January 24, 1997, one day after the time limit expired for the response to the Interrogatories and Request tor Production of Documents, Plaintitfs' counsel called Defendants' counsel, but received neither any response to the discovery nor a return telephone cali. 7. To date, Defendants have not responded to Plaintiffs' Complaint, Interrogatories and Request tor Production of Documents, and said responses are overdue, 8. Detendants have failed to comply with the discovery, as required by Pennsylvania Rules ot Civil Procedure 4006 and 4007. 9. Allot the discovery sought by Plaintiffs through their Interrogatories and Request for Production of Documents is relevant to the instant action. 10. Defendants have had more than ample time to respond to Plaintiffs' Interrogatories and Request for Production of Documents. 11. No objection to Plaintiffs' discovery has been filed by the Defendants. 12. Pennsylvania Rules of Civil Procedure provide for the liberal granting of discovery, 13, Pennsylvania Rule of Civil Procedure 4019 provides that upon motion of a party, the court can make an appropriate Order when a party "fails to make discovery". Pa, R.C,P. 4019(al (viiI 14. Plaintiffs therefore, believe that answering all of Plaintiffs' discovery requests would not burden or oppress Defendants, 15. Plaintiffs are represented by Michael E. Kosik, Esquire, of the firm of Angino & Rovner, P,C., 4503 North Front Street, Harrisburg, PA 17110, 17171 238-791, 16. Detendants are represented by Sandra L. Ykema. Esquire, c/o Lincoln General Insurance Company/Yorktowne Mutual Insurance Company, 33S0 Whiteford Road, P. O. Box 3709. York, PA 17402-0136. WHEREFORE. Plaintifts respectfully request that this Honorable Court order Defendants to respond to Plaintiff's' Interrogatories and Request for Production of Documents. PlaintiffS further request that should Defendants fail to comply with the Court.s Order, the Defendants should be prohibited frOlll entering a defense CERTIFICATE OF SERVICE I, Donna M. Rineer, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the foregoing PLAINTIPPS' MOTION TO COMPEL DISCOVERY OP DBPENDANTS ZVI AND SHIRLEY FRIEDMAN, JAClt GAtJGJIBH, INC., t/d/b/a JAClt GAtJGJIBH REALTOR AND JAClt GAtJGJIBH PROPERTY MAHAGBMIHT AND BETTY PITZPATRIClt upon all counsel of record, via postage pre-paid, first class United States mail, addressed as follows: Sandra L. Ykema, Esquire c/o Lincoln General Insurance Company 3350 Whiteford Road P. O. Box 3709 York, PA 17402-0136 (Counsel for Defendants) fJ(J11/)?f1 rn~'UA~ Donna M. Rineer Dated:~.J~ ~;).B; lif91 ~ r- "- c ;''; .... c:: '<":; ~~} !' - -~~,~ cY ,... !~~ . , 0 ! lih, ~ . E' rr .} .:. ..... .'- ~ ~ r- :j cr u . -'".-.. be deemed proper, it is specifically denied that the doctrine of assumption of the risk is in any way applicable to Plaintiffs' claim, since Plaintiff Janet Kautz stepped onto a concrete porch landing on the Defendants' apartment building when the landing gave way, collapsing beneath her. Plaintiff Janet Kautz was not aware and had no notice that the landing was unsafe and unsecured before proceeding out the main door ot the Defendants' commercial property, 21. 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 Plaintiff Janet Kautz could be comparatively or contributorily negligent on the cause of action stated in Plaintiffs' Complaint. and any such alleged negligence is denied. As set forth in Paragraphs 19 and 20, given the circumstances of the accident. it is impossible for Plaintiffs to have been negligent. careless or reckless in stepping from the main doorway onto a concrete landing; after which. the landing collapsed under Plaintiff Janet Kautz. 22, Denied. This averment is a mixed conclusion ot tact and law to which no responsive pleading is required. To the extent that a response may be deemed proper. it is specifically denied that Plaintifts' injuries were caused by the negligence. carelessness or recklessness of any other person or entity other than the named Defendants, The Defendants identified in . Plaintiffs' Complaint were the owners of the property and those responsible for maintenance and leasing of the property, who, at all times, were responsible for ownership, maintenance, inspection, possession, and control of the property. Defendants' attempt to blame some unidentified third party for unspecified acts of negligence, carelessness or recklessness, especially given the circumstances of the accident, is irrelevant and ineffective. WHEREFORE, Plaintiffs Janet and Peter Kautz respectfully request that Defendants' New Matter be stricken and that judgment be entered in their favor against the Defendants. chael E, osik, 1. D. No. 36513 4503 North Front Street Harrisburg, PA 17110-1799 (717) 238-6791 Counsel for Plaintiffs Dated: ~/~5/97 CERTIFICATE OF SERVICE I, Donna M. Rineer, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the foregoing PLAINTIFPS' REPLY TO DBPBlmAHTS' HEW MATTER upon all counsel of record, via postage pre-paid, first class United States mail, addressed as follows: Sandra L. Ykema, Esquire c/o Lincoln General Insurance Company 3350 Whiteford Road P. O. Box 3709 York, PA 17402-0136 (Counsel for Defendants) &0'n/n4.0 '1f!Jh'!'UA , Donna M. Rineer Dated: ~~~ ~~ /Q"1 JANET and PETER KAUTZ, Her Husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 96-5440 CIVIL ZVI and SHIRLEY FRIEDMAN, Husband and Wife, and JACK GAUGHEN INC., t/d/b/a JACK GAUGHEN REALTOR and JACK GAUGHEN PROPERTY MANAGEMENT, and BETTY FITZPATRICK, Defendants JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEPKHDAH'l'S' RESPONSE TO MOTION TO t'nInlBL DISCOVERY Plaintiffs Janet and Peter Kautz, by and through their attorneys, Angino & Rovner, P.C., would object to the Defendants' Response to their Motion to Compel Discovery and the Defendants' proposed Order. Although Plaintiffs would have no objection to the Defendants providing responses to Plaintiffs' discovery within ten (10) business days of the Court's Order, Plaintiffs do not believe that they should be placed in a position of having to file another Motion to Compel, should the Defendants object to the discovery. Defendants have now had 60 days in which to tile objections. if any vere telt to be appropriate, Additionally. Plaintiffs' counsel had advised counsel for the Defendants in a letter, dated January 7, 1997 . two weeks before the Answers to Interrogatories and Request for Production of Docu_nts vere due - that. given his clients. demand. to move the t,:t""5./~ case forward, a Motion to Compel Discovery would be filed, if Answers to the discovery could not be produced by their due date of January 23, 1997, At no time between the letter of January 7, 1997 and the filing of Plaintiffs' Motion to Compel Discovery did Defendants or their counsel advise Plaintiffs that additional time was necessary or that Answers would not be able to be provided because of Defendants' counsel's medical condition, As set forth in Plaintiffs' counsel's letter of January 7, 1997, the Motion to Compel came as a culmination of delays ont he part of the Defendants - first, in not responding to Plaintiffs' demand for settlement; continued delays in the payment of medical payment coverage to the Plaintiffs for bills which were submitted with appropriate documentation; and the delay in responding to Plaintiffs' Complaint for over three months. Plaintiffs would additionally respond that in defense counsel's absence, Plaintiffs were notified that Attorney Michael 0' Connor from Yorktowne Insurance Company was temporarily handling the file and attempting to accumulate the information necessary to respond to Plaintiffs' discovery and to determine the status ot the medical payment reimbursement. At the time ot being contacted by Attorney O'Connor. Plaintiffs had already filed their Motion to Compel. WHIRSFOIUi, Plaintiffs Janet and P1:!ter hut: would respectfully requests this Honorable Court to enter an Order giving the Defendants ten (10) business days in order to respond to Plaintiffs' discovery, which, in essence, will provide them with more than a 30-day extension, given the fact that February 23, 1997 was 60 days since the filing of the discovery. 1chael E, Kosi I, D. No. 36513 4503 North Front Street Harrisburg, PA 17110-1799 (717) 238-6791 Counsel for Plaintiffs Dated: ;}'/~'5 /(/7 ~ ..:r i::: N ~ N ~1 f-' LI.J'~_' ".,. ~i' "- ~~~' u.. . " ,. . or, -. , i'." ~. C'v . f.:! -- -.:.>: i-. C ...~ .~ ~_!....... - S ~ ,... Cl"I U COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JANET AND PETER KAUTZ, Her Husband, Civil Action - Law Plaintiffs File No. 96-5440 v, ZVI AND SHIRLEY FRIEDMAN, et aI., Jury Trial Demanded Defendants NOTIGE OF RECORDS DEPOSITIOfi TO: Custodian of Records The A. Z. Ritzman Associates, Inc. 3508 Trindle Road Camp Hill, PA 17011 Please take notice that pursuant to Pennsylvania Rule of Civil Procedure 4007.1, Defendants will take the records deposition of Custodian of Records of The A. Z. Ritzman Associates, Inc. on Thursday, December 11,1997, at 9:00 a.m., at the offices of Kahlbaugh, McGovern & Ykema, 3350 Whiteford Road, York, PA 17402. There will be no interrogation of the witness, as this is a deposition for the purpose of copying records only. No attorneys are expected to be present. Deponent is directed to bring to the deposition complete copies of all records maintained by The A. Z. Ritzman Associates, Inc. with respect to all medical records and x-rays pertaining to Janet L. Kautz. DEPONENT IS ADVISED THAT IT IS SUFFICIENT TO PROVIDE THE MATERIAL REQUESTED BY MAlL OR HAND DELIVERY IN UEU OF APPEARING IN PERSON FOR THIS DEPOSrnON, PROVIDED THE DEPONENT CERnFlES THAT THE RECORDS WHICH HE SENDS ARE TRUe. ACCURATE AND COMPLETE \. COPIES OF THE ENTIRE FILE PERTAINING TO THE EXAMINATION OF THE AFOREMENTIONED. KAHLBAUGH, MCGOVERN & YKEMA, P.C. S ra Lema, Esqul Supreme Court 1.0. #46746 Kahlbaugh, McGovem & Ykema, P,C. 3350 Whiteford Road York, PA 17402 Attomeys for Defendants Dated: /./.,,7/17