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HomeMy WebLinkAbout00-02617 #9 RICHARD CLOTFELTER and IN THE COURT OF COMMON PLEAS OF LINDA CLOTFELTER, CUMBERLAND COUNTY, PENNSYLVANIA Husband and Wife, Plaintiffs CIVIL ACTION - LAW V. CARLISLE COUNTRY CLUB, Defendant 00-2617 CIVIL TERM PRETRIAL CONFERENCE AND NOW, this 18th day of October, 2005, before Edgar B. Bayley, Judge, present for the plaintiffs was James R. Ronca, Esquire, and for the defendant, Guy H. Brooks, Esquire. On May 24, 1998, plaintiff, after hitting a golf shot on the first hole of the Carlisle Country Club, was standing to the right of the center of the fairway waiting for a playing partner to hit. A ball, hit from a driving range, struck him in the left eye causing injury. He seeks general damages, and his wife, Linda, seeks consortium. Estimated time of trial is three days. Each party shall have four peremptory challenges. Defendant shall submit its golf professional, Chip Richter, to a deposition by plaintiff as a prerequisite for calling him as a witness at trial. Each party shall provide the trial judge at the commencement of trial proposed points for ch ge which can be modified or altered at the end of the t stimo 7i/in the case. By the Court, i r James R. Ronca, Esquire For Plaintiffs Guy H. Brooks, Esquire For Defendant prs L1 ?J L4 _? _ - ]T i77 ?"' iJ t C_: _ ' ? - ? .` rte` C 3 C.?J Jj i7? -y ? ?? .? RICHARD CLOTFELTER AND IN THE COURT OF COMMON PLE AA LINDA CLOTFELTER, CUMBERLAND COUNT$,=AMA005 Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, NO. 00-2617 CIVIL ACTION - LAW Defendant . JURY TRIAL DEMANDED PLAINTIFFS' PRE-TRIAL MEMORANDUM 1. LIABILITY: This is a premises liability case. On May 24, 1998, Rick was a business invitee at the Carlisle Country Club and was playing in a tournament. The Carlisle Country Club is a corporation in the business of selling golf services. Rick Clotfelter was playing in his foursome on the first hole, adjacent to the driving range, when he was struck in the left eye by a golf ball driven from the range. Rick was suffered injuries, including loss of vision in the left eye. Fairway number 1 and the driving range are essentially parallel to each other. Beginning in 1994, concerns were raised in the minutes of the Golf Committee and the Board of Governors regarding the safety of golfers on the first fairway. In 1995, one golfer was hit in the head and, on a separate occasion, another golfer was nearly hit. Several suggestions were made to improve safety but only minimal safety measures were adopted. The driving range was defectively designed originally and was defectively revised in 1996. Specifically, the defects that existed on the day plaintiff was injured included (1) the range itself is too narrow to meet golf course standards, (2) the barriers placed between the driving range and the first hole were woefully insufficient, (3) the tree barrier set up between the range and fairway 1 made it difficult for members using the driving range to see golfers on the first hole, (4) the tree and net barriers gave a false sense of security to golfers on the first fairway and (5) the hitting distance on the range should have been limited. The managing body of the Carlisle Country Club was aware of the shortcomings of the driving range and had actual knowledge of the danger of a member being struck by an errant range ball. There were at least two documented incidents, prior to Plaintiffs May 24, 1998 injury, where another person was struck by a driving range ball while playing the first hole fairway at the Carlisle Country Club. Ultimately, the only remedial measures undertaken prior to May 24, 1998 as a result of the 1995 incident was the installation of 20-foot-high netting for about 100 feet between fairway 1 and the driving range and trees were planted, not as a barrier, but as a "guide" to members practicing drives on the practice range. Unfortunately, neither this short, low net nor the additional trees corrected the problems created by errant range balls. In fact, the modifications provided little real safety and instead it made the problem worse by making it difficult for anyone using the driving range to see anyone on the first fairway. The managing body of the corporation had identified various other feasible remedial measures in1995 but none other than the netting and trees mentioned above were actually implemented until after Rick Clotfelter was 2 injured in 1998. Only after a serious injury did the Club prohibited the use of woods/drivers on the driving range, limited drives to 180 yards, reconfigured the driving range by moving the range poles more to the right of the driving range than left, and install warning signs to yield to players on fairway number 1 who were within range. As the owner/possessor of the range, the Carlisle Country Club, is responsible for Rick Clotfelter's injuries caused by the range's defects and its negligence in not correcting the known safety hazards to protect players on fairway number 1. II. DAMAGES: Rick's main injury was to his left eye. He reported immediately losing vision in the left eye and was still not able to see more than light and shades of light and dark at the time of his admission to the hospital. At the time of admission, Rick only had hyphema and could only see hand movements about a foot away from his left eye. He could not count fingers and was referred to Drew J. Stoken, O.D. for an evaluation. Dr. Stoken examined Rick later that day and diagnosed Rick with traumatic hyphema. A CT san was ordered and taken at Carlisle Imaging Associates on May 27, 1998. The CT scan revealed a fracture around the left orbit of the eye near the lamina consistent with a blow-out fracture in the left orbit of the eye wall. Rick also had thickening of the mucus in the left eye. 3 In addition to other treatment, Rick has consistently seen Dr. Stoken and presently Rick's eyesight in the left eye is currently 5/200. Rick has a macular scar, decreased retinal sensitivity, and retinal pigment epithelial defects. Out of his left eye, Rick Clotfelter can see only shadows or clouds peripherally and there is complete darkness in the center part of the vision of the left eye. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES: Plaintiff sees no significant dispute regarding liability or damages. This is a premises liability case where Rick Clotfelter was a business invitee on property owned by a corporation, the Carlisle Country Club. General negligence principles apply as does the law regarding the duties owed to a business invitee. An issue also exists regarding the Defendant's use of an expert witness at trial. In discovery, the Plaintiffs sent typical interrogatories to the Defendant regarding the identity of expert witnesses. To date, the Defendant has not identified an expert witness and has not produced an expert report. The Plaintiffs listed this case for trial in the November 2005 term at the suggestion of and without objection from the Defendant. Pursuant to Pa.R.C.P. 4003.5(b), the Defendant should be precluded from using an expert witness at trial. IV. SUMMARY OF LEGAL ISSUES: The Defendant, Carlisle Country Club, is a nonprofit corporation doing business in Cumberland County. The Country Club possesses property in a defective condition, as pleaded in the Plaintiffs' Complaint. Rick Clotfelter was a business invitee as a paying non-voting member of the Club on May 24, 1998 4 when he was struck in the eye by an errant golf ball that hooked into fairway number 1 from the driving range. The Carlisle Country Club's duty to a business visitor, like Rick Clotfelter, is the highest duty owned to any entrant upon land. Lonsdale v. Joseph Horne Co., 403 Pa. Super. 12, 587 A.2d 810 (1991); Bearv v. Pennsylvania Electric Co., 322 Pa. Super. 52, 469 A.2d 176 (1983). The Carlisle Country Club had a duty to correct or to warn of all dangerous conditions, including all those conditions that would have been discoverable by a reasonable inspection whether or not a reasonable inspection was actually done. Treadway v. Ebert Motors Co., 292 Pa. Super. 41, 436 A.2d 994 (1981). The Carlisle Country Club had a duty to exercise reasonable care to keep the premises in a reasonably safe condition for the contemplated uses, and to give warning of any failure to maintain them in that condition. See Johnson v. Rulan, 363 Pa. 585, 70 A.2d 325 (1950); Janowicz v. Crucible Steel Co., 433 Pa. 304, 249 A.2d 773 (1969). The Supreme Court in Jones v. Three Rivers Management Corp., 483 Pa. 75, 81-82, 394 A.2d 546, 549 (1978), explains the liability of an amusement owner or operator stating that: [H]e will be liable for injuries to his patrons only where he fails to use reasonable care in the construction, maintenance, and management of (the facility), having regard to the character of the exhibitions given and the customary conduct of patrons invited. Based on Jones, the Carlisle Country Club will be liable to Rick Clotfelter if the Plaintiffs prove at trial that the Club failed to use reasonable care in the construction, maintenance, or management of the driving range which led to Rick Clotfelter's eye injury. 5 The Carlisle Country Club had a duty to take effective protective measures to prevent foreseeable injuries such as the damage to Rick Clotfelter's sight in his left eye. Instead, the Club actually made the situation worse after the 1995 incident by planting additional low and bushy trees between the range and fairway number 1 which in 1998-and now--prevents people standing at the range tees from seeing members on fairway 1 and vice versa. V. WITNESSES: Rick Clotfelter 1155 Windsor Road Mechanicsburg, PA Linda Clotfelter 1155 Windsor Road Mechanicsburg, PA 17050-6601 17050-6601 Dr. Drew J. Stoken (via videotaped deposition - scheduled for 10/20/05) 338 Alexander Spring Road Carlisle, PA 17013 Michael J. Hurdzan, Ph.D. (Expert Witness) 1270 Old Henderson Road Columbus, OH 43220 Jesse Jay Cooper 1 Eastwood Drive Carlisle, PA 17013 (in foursome with Rick) Bruce B. Montgomery (in foursome with Rick) 1202 Georgetown Circle Carlisle, PA 17013 Michael A. Neumyer (in foursome with Rick) 26 Bridgeport Drive Mechanicsburg, PA 17055 6 Robert O'Neill 5271 Strathmore Drive Mechanicsburg, PA 17055 CORPORATE DESIGNEE OF CARLISLE COUNTRY CLUB: James Varhola (officer of CCC) James Parsons (Chair of Golf Committee - officer of CCC) Mike Miller (deposed) 2 Grey Wolf Lane Robesonia, PA Paul Dagan (deposed) (Asst.Golf Pro - employee of CCC) Richard Kunkel (deposed) (Golf Pro - employee of CCC) MEMBERS OF THE GOLF COMMITTEE (all employees of the Club): Bob Reisinger Jeff Ernst Ed Harne Gene Smith Scott Brisbane Ginney Swerly Joan Haupler Greg Fantuzzi, Ground Superintendent VI. EXHIBITS: 1. Carlisle Country Club Golf Committee Meeting Minutes. 2. Carlisle Country Club Board of Governors Meeting Minutes. 3. Aerial Photographs of Carlisle Country Club. 4. Layout of CCC Course. 7 5. Notice to CCC Members After the Incident from The Golf Committee. 6. CCC Responses to Plaintiff's Requests for Admissions. 7. Photographs taken at CCC. 8. Incident Report. 9. CCC Member's Handbook. 10. The Carlisle Crier September 1998. 11. Memo from Mike Kurtas re Prior Incident Attached to CCC Answers to Plaintiff's Interrogatories. 12. National Golf Foundation Booklet. 13. Notice to Members in the Carlisle Crier (Issue 2, Volume 5, p. 13). 14. Photograph of Rick Clotfelter. 15. Enlargement of Slide of Retina taken by Dr. Stoken. 16. Members Policy Guide. 17. Acceptance of Application. 18. Rick Clotfelter's medical records. 19. Rick Clotfelter's medical bills. 20. Glasses for jury view of Rick Clotfelter's vision in his left eye. 21. Deposition transcript of Richard Lee Kunkle, Jr., and exhibits. 22. Deposition transcript of Michael J. Miller and exhibits. 23. Deposition transcript of Paul Dagan and exhibits. 24. Deposition transcript of James Varhola and exhibits. 25. Deposition transcript of Rick Clotfelter and exhibits. 26. Deposition transcript of Linda Clotfelter and exhibits. 8 27. Golf Operations Handbook (1985 National Golf Foundation). 28. Deposition transcript of James Parsons and exhibits used at the deposition. 29. Videotaped deposition of Drew Stoken, M.D. 30. Transcript of deposition of Drew Stoken, M.D. 31. Curriculum Vitae of Drew Stoken, M.D. 32. Report of Michael J. Hurdzan, Ph.D., dated September 17, 1999. 33. Report of Michael J. Hurdzan, Ph.D., dated September 5, 2002. 34. Report of Michael J. Hurdzan, Ph.D., dated April 28, 2005. 35. Curriculum Vitae of Michael J. Hurdzan, Ph.D. 36. Photographs of feasible alternative nets (at Rich Valley course). 37. Satellite photographs of course. 38. Photo of stop and yield signs and range. 39. September 20, 2005 report from Drew Stoken, M.D. VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS: Plaintiffs made an original demand on February 23, 200 of $625,000. Defendant offered $50,000 after a failed mediation in 2003. The offer was declined. VII. STIPULATIONS AND ADMISSIONS The defendant has admitted that Mr. Clotfelter was struck in the eye by a driving range ball. 9 Judge Guido was the chair of the Golf Committee at relevant times from 1994 to 1996. The parties have agreed to allow the admission of the Golf Committee minutes and not call Judge Guido for a deposition or at trial. Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By: James R. Ronca I Attorney I.D. #25631 Todd D. Getgen Attorney I.D. #80719 209 State Street Harrisburg, PA 17101 (717) 232-6300 DATE: 16 « 2x65" Attorneys for Plaintiffs 10 CERTIFICATE OF SERVICE AND NOW, I, Beth E. Steever, an employee of the law firm of Schmidt, Ronca, & Kramer, P.C., hereby certify that I have served a true and correct copy of the foregoing Pre-Trial Memorandum by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 SCHMIDT, RONCA & KRAMER P.C. 12-w =. ? - Date: October 11, 2005 Beth E. Steever Guy H. Brooks, Esquire I.D. No. 49672 David M. Steckel, Esquire I.D. No. 82340 GOLDBERG KATZMAN, P.C. 320 Market Street - P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant RECEIVED OCT 14 200511 RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, Plaintiffs v. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT CARLISLE COUNTRY CLUB'S PRE-TRIAL MEMORANDUM 1. STATEMENT AS TO LIABILITY This case concerns an injury which the plaintiff, Richard Clotfelter, alleges occurred when he was hit by an errant golf ball while on the golf course of the Carlisle Country Club. The plaintiff, a member of the Carlisle Country Club, had played at this site approximately 60 times since becoming a member one year previously, and was familiar with the layout of the golf course and the driving range, which he had also used on occasion. It is generally understood that in playing golf, each player assumes certain risks while engaging in the sport, one of which is the unfortunate possibility of being hit by a stray golf ball. Defendant Carlisle Country Club will show that Mr. Clotfelter was well aware of the layout of the driving range and the adjacent fairways. Members were also aware that, on occasion, golf balls from the driving range would intrude onto the first hole, and had placed a net twenty feet high along the border between the driving range and the hole, which was also separated by scattered trees. played on a course and a driving range well-known to him, and to which he was, in fact, a subscribing and frequently participating member. The negligence of the Carlisle Country Club is also disputed. V. IDENTITY OF WITNESSES TO BE CALLED A. Jim Parsons, Country Club officer, member, golfer. B. Jim Varhola, Country Club officer, member, golfer. C. Skip Glenn, Country Club officer, member, golfer. D. Chip Richter, golf pro. E. Kris Shultz, Country Club Manager. VI. LIST OF EXHIBITS A. Diagram/photographs of the Carlisle Country Club golf course and driving range. B. Diagrams/aerial photographs of other golf courses/driving ranges. C. Deposition transcripts and their exhibits, previously taken in this matter. D. Defendant reserves the right to supplement exhibits at the time of trial. 3 VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS Defendant denies liability but an offer of $50,000 was formerly tendered. Respectfully submitted, By GOLDBERG KATZMAN, P 4 ?? /C'-? A -1 Brooks, Esquire Date: / 127271.1 .1 I.15. No. 49672 David M. Steckel, Esquire I.D. No. 82340 320 Market Street - P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Scott B. Cooper, Esquire James R. Ronca, Esquire Schmidt, Ronca & Kramer 209 State Street Harrisburg, PA 17101 GOLDBERG KATZMAN, P.C. By l, 1,L, 4, 4 Sandra A. Rebert Date: ZG1/0/.AOG5 •e + Im . _ ., RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA `T NO. OG -?Ll? etCJ CIVIL ACTION - LAW JURY TRIAL DEMANDED N O T I C E YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the 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 a 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 A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 RICHARD CLOTFELTER AND IN THE COURT OF COMMON PLEAS LINDA CLOTFELTER, CUMBERLAND COUNTY,PENNSYLVANIA Husband and wife, Plaintiffs NO. vi. CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED N O T I C I A Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las 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 o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO. (? - -26/7 l ICj CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs, Richard Clotfelter and Linda Clotfelter, by and through their attorneys, Schmidt, Ronca & Kramer, P.C., and respectfully aver as follows: The Parties 1. The Plaintiffs, Richard Clotfelter and Linda Clotfelter, are husband and wife, and currently reside at 27 Pheasant Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant, the Carlisle Country Club, is a non- profit private country club incorporated in the Commonwealth of Pennsylvania with a present business address at 1242 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. r 1 Facts of the Incident 3. The events hereinafter described took place on or about May 24, 1998, on the first hole of the Carlisle Country Club golf course. 4. At the aforementioned time and place, it was sunny, the golf course was dry, and there were no adverse weather conditions. 5. At the aforementioned time and place, the Plaintiff, Richard Clotfelter, was playing in a golf tournament at the Defendant country club. 6. At the aforementioned time and place, the Plaintiff, Richard Clotfelter, was playing golf on the first hole which was, and still is, adjacent to the Carlisle Country Club driving range (hereinafter referred to as "driving range" or "practice range"). 7. At the aforementioned time and place, the Plaintiff, Richard Clotfelter, was approximately one-half (&?) way down the first hole fairway and waiting for another member of his foursome to hit his ball when Richard Clotfelter was hit in the eye by a ball hit from the driving range. 8. At the aforementioned time and place, the Defendant was the custodian of, managed, and maintained the Carlisle Country Club, particularly the golf course and driving range. 2 9. At the aforementioned time and place, the Defendant supervised, administered, and maintained authority over all phases of activities of the golf course and driving range, including but not limited to the design, operation and maintenance of the golf course and driving range. 10. At the aforementioned time and place, the Defendant was in control of the design, maintenance and condition of the golf course, driving range and the surrounding real estate. 11. As a direct and proximate result of being hit in the eye, the Plaintiff, Richard Clotfelter, sustained the serious and permanent injuries set forth below. 12. At all times relevant thereto, the Plaintiff, Richard Clotfelter, was lawfully on the premises of the Carlisle Country Club and its golf course as an invitee with the express or implied permission of the Defendant for any or all of the following reasons: a. as a member of a class of intended invitees to the golf course; b. as a member of the general public which formed the class of intended invitees to the golf course; C. as a member of the Country Club who is an intended invitee to the golf course; and d. as a lawful visitor to the Country Club and a member entitled to be on the premises in any lawful manner and any lawful purpose at any time. 13. The Defendant owed the following duties to the Plaintiff, Richard Clotfelter: 3 4 a. a duty to protect him against known dangers and against dangers which it might discover by reasonable operation, care and inspection; b. a duty not to injure by negligent activity; C. a duty not to injure by negligent maintenance; d. a duty not to injure by negligent operation; e. a duty to take reasonable precautions to prevent Richard Clotfelter from foreseeable dangers; f. a duty to warn Richard Clotfelter of dangers which the Defendant knew or should have known existed; and g. a duty to inspect the premises and surrounding real estate to discover possible dangerous conditions. COUNT I .v. CARLISLE COUNTRY CLUB Il T T?L.MT W 14. Paragraphs 1 through 13 of the Plaintiffs' Complaint are incorporated herein by reference and made a part thereof as if set forth in full. 15. The aforesaid accident was caused solely by the negligence of the Defendant and was in no caused or contributed to by the Plaintiff, Richard Clotfelter. 16. The Defendant's negligence consisted of: a. Failing to erect a longer and/or higher barrier along the perimeter of the first hole between the first hole and driving range than the one in existence on the day of this incident; b. Failing to plant a more concentrated tree planting between the driving range and first hole; C. Failing to place restrictive conditions on the driving range, including restricting people on the range from hitting drivers/woods; restricting people from hitting more than 150 yards; and failing to observe and watch people who were hitting on the driving range; 4 P d. Failing to place warning signs that players should be aware of errant balls between the first hole and driving range; e. Failing to make a reasonable inspection of the first hole and driving range which would have revealed the dangerous condition of the golf course; f. Failing to install adequate safety devices between the first hole and driving range; g. Failing to erect barriers or other safety precautions to prevent injury to the Plaintiff and other similar invitees; and h. Failing to properly inspect the golf course and driving range. 17. As the sole and proximate result of the Defendant's negligence, the Plaintiff, Richard Clotfelter, suffered severe, and what may be permanent, injuries including: a. loss of vision in the left eye; b. laceration below the left eye; C. hyphema in the left eye; d. a fracture around the left orbit, near the lamina, of the left eye; e. thickening of mucus in the left eye; f. difference in the pupils' size between his right eye and left eye; and g. a difference in the pigment color between the right eye and left eye. 18. As the sole and proximate result of the Defendant's negligence, the Plaintiff, Richard Clotfelter, is at an increased risk of harm for additional injury and treatment, including: a. surgery in the eye; b. scleritis of the left eye; C. total blindness; d. cataracts; e. strabismus; and f. glaucoma. 5 19. As the sole and proximate result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, has incurred medical expenses and may continue to incur medical expenses into the future and, thus, a claim for these expenses is made. 20. As a direct and proximate result of the injuries sustained as a result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, has sustained a wage loss and may continue to incur additional wage loss into the future and, thus, a claim for these losses is made. 21. As a direct and proximate result of the injuries sustained as a result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, has been advised and, therefore, avers that the aforementioned injuries may be permanent in nature and effect and, thus, a claim for these injuries is made. 22. As a direct and proximate result of the injuries sustained as a result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, has undergone in the past and, will continue to undergo in the future, pain and suffering, inconvenience, embarrassment, humiliation and disfigurement, and, thus, a claim for these losses is made. 23. As a direct and proximate result of the injuries sustained as a result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, has been obliged to spend various sums of money and to incur various expenses for the injuries 6 that he has suffered, and may continue to incur the same in the future and, thus, a claim for these losses is made. 24. As a direct and proximate result of the injuries sustained as a result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, suffered a permanent diminution of his ability to enjoy life and life's pleasures and, thus, a claim for these losses is made. 25. As a direct and proximate result of the injuries sustained as a result of the negligence of the Defendant, the Plaintiff, Richard Clotfelter, suffered a loss of earnings and an impairment of his earning power and capacity and, thus, a claim for these losses is made. WHEREFORE, the Plaintiff, Richard Clotfelter, demands judgment on the Defendant, Carlisle Country Club, in an amount in excess of Thirty-Five Thousand ($35,000.00) Dollars and in excess of an amount requiring compulsory arbitration. COUNT II LINDA CLOTFELTER V. CARLISLE COUNTRY CLUB LOSS OF CONSORTIUM 26. Paragraphs 1 through 25 of the Plaintiffs' Complaint are incorporated herein by reference and made a part thereof as if set forth in full. 7 27. As a direct and proximate result of the Defendant, Carlisle Country Club's, negligence, the Plaintiff, Linda Clotfelter, has been forced to incur the loss of society, companionship and services of her husband, Richard Clotfelter. 28. The Plaintiff, Linda Clotfelter, will continue to incur the same losses in the future and, thus, a claim for these past and future losses is made. WHEREFORE, the Plaintiff, Linda Clotfelter, demands judgment on the Defendant, Carlisle Country Club, in an amount in excess of Thirty-Five Thousand ($35,000.00) Dollars and in excess of an amount requiring compulsory arbitration. Respectfully su)Aiyted, SCHMIDT, RONCA &,ICLAMER, P.C. By: DATE: -A'Etorney/I.D. #25631 Scott,Z Cooper Attorney I.D. #70292 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiffs 8 VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL We, RICK CLOTFELTER AND LINDA CLOTFELTER, verify that we are the Plaintiffs in the foregoing action and that the attached COMPLAINT is based upon the information which has been gathered by our counsel in preparation of this lawsuit. The language of the COMPLAINT is that of counsel and is not ours. We have read the COMPLAINT, and to the extent that it is based upon information which we have given to our counsel, it is true and correct to the best of our knowledge, information, and belief. To the extent that the contents of the COMPLAINT are that of counsel, we have relied upon counsel in making this Verification. We understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications made to authorities. O`-A II%IOO DATE 4115 1 100 DATE RICK CLOTFELTER CLOTFELTER 4INDA' 9 "I?hl4?tluruatlaes?us?au? ru*_ave '""'tea' Y ..o ? o ? vl - F 1 0 1 IV3 Guy H. Brooks, Esquire I.D. No. 49672 GOLDBERG, KATZMAN & SEWMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717)2344161 Attorneys for Defendant RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiffs and their counsel, James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 You are hereby notified to plead to the within New Matter of Defendant within twenty (20) days of receipt hereof. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: 7V J Gu H. Brooks, Esquire Attorney I.D. No. 49672 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Dated:' Attorneys for Defendant Guy H. Brooks, Esquire I.D. No. 49672 GOIDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108.1268 (717) 2344161 Attorneys for Defendant RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S ANSWER AND NEW MATTER Defendant, Carlisle County Club, by and through its counsel, Guy H. Brooks and Goldberg, Katzman & Shipman, P.C., file the following Answer with New Matter averring as follows: 1, 3-11,12 a- d, 13 a-g, 14-15,16 a-h, 17 a-g, 18 a-f, 19-28. Pursuant to Pa. R.C.P. 1029(e), as amended effective September 1, 1994, except as hereinafter set forth, all averments not deemed admitted under the provisions of said rule are hereby denied generally. Those averments of fact which must be denied specifically pursuant to Pa. R.C.P. 1029(e) are further answered below. 2. Admitted. NEW MATTER 29. Pursuant to amended Pa.R.C.P. 1030, New Matter, the Defendant incorporates the affirmative defenses of assumption of risk, comparative negligence and contributory negligence. 30. Plaintiffs claims are, or maybe, barred by the Statute of Limitations. 31. Plaintiffs claims are, or maybe, barred by waiver. 32. Plaintiffs claims are, or maybe, barred by consent. 33. Plaintiffs claims are, or maybe, limited by their failure to mitigate damages. 34. Plaintiffs claims are, or maybe, barred by the Pennsylvania Comparative Negligence Statute. 35, The damages claimed are caused, if at all, by the conduct of third persons over whom the answering Defendants had no control. Therefore the claims as to the answering Defendants are barred. WHEREFORE, the Defendant requests that judgment be entered in its favor and against the Plaintiffs. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: 7ly ?/ H. Brooks, Esquire Attorney I.D. No. 49672 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Date: 45614.1 2 I, Michael Miller, hereby acknowledge that the Carlisle Country Club, is a Defendant in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing Answer and New Matter, that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. § 4904, relating to unsworn falsification to authorities. Name. ch el er Title: Club anager Date: auk C_/g a61Ot7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of Defendant's Answer and New Matter upon all counsel of record by depositing a copy of the same with postage prepaid, first class delivery in the United States Mail at Harrisburg, Dauphin County, Pennsylvania, on the ? day of -e , 2000, addressed as follows: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 GOLDBERG, KATZMAN & SHIIIPjP.MA,, N, P.C. By J. `f CC%fiC elisa S. Flesher, Paralegal to uy y H. Brooks, Esquire Attorney I.D. #49672 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant SHERIFF'S RETURN - REGULAR CASE NO: 2000-02617 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CLOTFELTER RICHARD ET AL VS CARLISLE COUNTRY CLUB HAROLD WEARY Sheriff or Deputy Sheriff of Cumberland County, Pensylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARLISLE COUNTRY CLUB the DEFENDANT , at 0009:03 HOURS, on the 2nd day of April 2000 at 1242 HARRISBURG PIKE CARLISLE, PA 17013 by handing to CATHY L. WALTERS (BANQUET COORDINATOR) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: D Service ocketing 18.00 Q? 3.10 .00 Surcharge 10.00 R. Thomas Kline .00 31.10 05/03/2000 SCHMIDT, RONCA & KRAMERf? Sworn and Subscribed to before By: w4? ?/?•-Pave me this day of Deputy Sheriff o2621U A.D. tx- C e rYk f ( c,i Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2000-02617 P Amended COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CLOTFELTER RICHARD ET AL VS CARLISLE COUNTRY CLUB HAROLD WEARY Sheriff or Deputy Sheriff of Cumberland County, Pensylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE CARLISLE COUNTRY was served upon the FENDANT , at 0009:03 HOURS, on the 2nd day of May , 2000 at 1242 HARRISBURG PIKE CARLISLE, PA 17013 by handing to CATHY L. WALTERS (BANQUET COORDINATOR) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Amended Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 -- 3.10 .00 y 10.00 R. Thomas Kline TT nn 31.1U Sworn and Subscribed to before me this ,sue day of ?Lnu. oLa u J A.D. -?- Prothonotary 05/09/2000 SCHMIDT, RONCA & KRAMER By: ;? o Deputy Sher' RICHARD CLOTFELTER AND : IN THE COURT OF COMMON PLEAS LINDA CLOTFELTER, : CUMBERLAND COUNTY, PENNSYLVANIA Husband and wife, Plaintiffs NO. 00-2617 V. CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER AND NOW, come Plaintiffs, by and through their attorneys, Schmidt, Ronca & Kramer, P.C. and answer Defendant's New Matter as follows: 29.-35. Each of the paragraphs in Defendant's New Matter are conclusions of Law which require no answer. WHEREFORE, Plaintiff requests judgment against the Defendant as more specifically averred in the Complaint. By: Respectfully submitted, SCHMIDT, ROPWA & P.C. James R. r Esquire Suprem t. I.D. #25631 209 S e Street H urg, PA 17101 (7171 232-6300 Dated: a[ -Wv Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this R day of ttn _, 20001 I, James R. Ronca, Attorney for Plaintiff, hereby certify that I have served a true and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, certified, return receipt requested, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 ? ? ?' ` ??- ' ? ' . ,_ : ? : ? ?, _? . .. ?; : ., _ - - ?c - ?? T_' 4-_. .,3 _ ? .- - ? " >>r' -I ? '? :+i RICHARD CLOTFELTER AND IN THE COURT OF COMMON PLEAS LINDA CLOTFELTER, CUMBERLAND COUNTY, PENNSYLVANIA Husband and wife, Plaintiffs No. 00-2617 V. CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED !CERTIFICATE OF SERVICE AND NOW, this c7 day of 0'1, 2000, I, Scott B. Cooper, Attorney for Plaintiffs, hereby certify that 'I have served a true and correct copy of the foregoing PLAINTIFFS' (SET 1) REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT by depositing a copy of the same in the United States Mail, postage prepaid, certified, return receipt requested, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 SCHMIDT, RONCA & KRAMER, P.C. By: James R. Ronca Attorney I.D. #25631 Scott B. Cooper Attorney I.D. #70242 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorney for the Plaintiffs 8 c> o 0 mm - z --0 .`L rLl la? Z tII -c. I RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this day of , 2000, I, Scott B. Cooper, Attorney for Plaintiffs, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' INTERROGATORIES ADDRESSED TO THE DEFENDANT (SET I) by depositing a copy of the same in the United States Mail, postage prepaid, certified, return receipt requested, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 SCHMIDT, RONCA & KRAMER, P.C. By: A,? James R. Ronca Attorney I.D. #25631 Scott B. Cooper Attorney I.D. #70242 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorney for the Plaintiffs ?' C ?' [y ;-- J Cb ? e ?? „? ??m _ ? ? : ?-?C? ?„ _' `?' ?t^, `! :: ? L? ?? !?i ;,_?, ? C .y7_ ? ? y 1 (Q RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 23rd day of August, 2000, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' FIRST SUPPLEMENTAL INTERROGATORIES ADDRESSED TO THE DEFENDANT by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONC & R, P.C. By Shawn T. Peterson, Paralegal 209 State Street Harrisburg, PA 17101 (717) 232-6300 ?' ? --, '- b« „ rnr,- .? - 1 ,' ?--_' ;:, ? - vs ?= ' -- '_ ?? ?, ,.? ? ;ca ?? __; T ? ?` "r?7 _ ? ? K RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 23rd day of August, 2000, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' REQUESTS FOR ADMISSIONS AND ACCOMPANYING INTERROGATORIES ADDRESSED TO DEFENDANT by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By iArzk Shawn T. Peterson, Paralegal 209 State Street Harrisburg, PA 17101 (717) 232-6300 ca co- ?I :j RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 24th day of October, 2000, I, Scott B. Cooper, Esquire, counsel for the Plaintiff, hereby certify that I have, this day, served a copy of Plaintiffs' Requests for Admissions (Set II) by serving a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By: Scott' ooper I. D.# 70242 209 State Street Harrisburg, PA 17101 (717) 232-6300 DATE: 10/24/00 Attorney for Plaintiffs a RICHARD CLOTFELTER'AND IN THE COURT OF COMMON PLEAS LINDA CLOTFELTER, CUMBERLAND COUNTY, PENNSYLVANIA Husband and wife, Plaintiffs No. 00-2617 V. CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 30th day of October, 2000, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' ANSWERS TO DEFENDANTS' INTERROGATORIES-SET I by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By. Shawn T. Peterson, Paralegal 209 State Street Harrisburg, PA 17101 (717) 232-6300 0 Z w r. ? D CD n i7l s RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, V. Plaintiffs CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 30th day of October, 2000, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' RESPONSES TO DEFENDANTS' REQUESTS FOR PRODUCTION OF DOCUMENTS-SET I by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By S awn T. Peterson, Paralegal 209 State Street Harrisburg, PA 17101 (717) 232-6300 e 2 7 ? O +"'J '°q cri U7 W me 7 { 7j 35i N m --{ 0e-,207 6.0,( , CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of Defendant's Response to Plaintiffs' Requests for Admissions and Accompanying Interrogatory (Set II) upon all counsel of record by depositing a copy of the same with postage prepaid, first class delivery in the United States Mail at Harrisburg, Dauphin County, Pennsylvania, on the /L#? day of ND\J p to\)CJ( , 2000, addressed as follows: James R. Ronca, Esquire Scott B. Cooper, Esquire SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 GOLDBERG, KATZMAAN & SHIPM/AN, P.C. By -l Dj,(,C 01 ?l1 ?/I PiC 44ehsa S. Flesher, Paralegal to Guy H. Brooks, Esquire Attorney I.D. #49672 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant ? r.-, - C c..i . . ?' ? rrt,? ? r - ?- f' Ln?° ?? ?'? (lL J L_ L_' <? RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL CERTIFICATE OF SERVICE AND NOW, this 12f day of August, 2003, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing Plaintiffs' Request for Admission And Accompanying Interrogatories Addressed to Defendant (Set III) by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA & KRAMER P.C. By: Shawn T`Peterson 209 State Street Harrisburg, PA 17101 (717) 232-6300 C L_ L'J CrL?": 2 1 RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED STATEMENT OF INTENTION TO PROCEED TO THE COURT: Plaintiffs Richard Clotfelter and Linda Clotfelter intend to proceed with the above-captioned matter. Respectfully submitted, SCHMIDT, RONCA & KRAMER P.C. By: Scott B. Cooper, Esquire I.D. # 70242 209 State Street Harrisburg, PA 17101 (717) 232-6300 Date: ")/Z)0?? Attorney for Plaintiffs RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 2nd day of September, 2003, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing Statement of Intention, to Proceed by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA & KRAMER P.C. By: - NIX Shawn T. Peterson 209 State Street Harrisburg, PA 17101 (717) 232-6300 G n G=i f'll f?j Z I o^C N ?m f^? PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil court ( ) for trial without a iurv CAPTION OF CASE RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant The trial list will be called on December 14, 2004 Trials commence on January 18, 2005. Pre-trials will be held on December 22, 2004 (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. Ronca, Esquire for Plaintiffs ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil Date: /.7-/ 0 ?/Zp/ f n CERTIFICATE OF SERVICE AND NOW, this (0/ day of December, 2004, I, Beth E. Steever, an employee of SCHMMT, RONCA & KRAMER, P.C., do hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR TRIAL in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 ( UA Beth E. Steever y .. -I? - f.BNiF ? -?Y ..,•.aa?r r.n.rs.a!.m:??w3:.°., xPr?.mm'a„_?;_.,., bhp ._ W,__ ... _ _ f.' Q 7 jy C f' ? RTC-?`-' R7 7 1 U ; L 7 cri .i ,--{ C C75 -< Richard Clotfelter and Linda Clotfelter, Husband and Wife V Carlisle Country Club IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2617 CIVIL TERM ORDER OF COURT AND NOW, December 15, 2004, counsel having failed to call the above case for trial, the case is stricken from the January 18, 2005 trial term. Counsel is directed to relist the case when ready. By the Court, /Ymn r E. Hoffer, P.J. James R. Ronca, Esquire For the Plaintiff Guy H. Brooks, Esquire For the Defendant Court Administrator jlk C_!, - PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil court ( ) for trial without a jury OF CASE ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant The trial list will be called on February 15, 2005. Trials commence on March 14, 2005. Pre-vials will be held on February 23, 2005. (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. Date: January 24, 2005 i CERTIFICATE OF SERVICE AND NOW, this 24`' day of January, 2005, I, Beth E. Steever, an employee of SCHMIDT, RONCA & KRAMER, P.C., do hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR TRIAL in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 1 Beth E. Steever ra -n r, 6 .? m . Ur N J !ICJ ?-ti" !J 13 Richard Clotfelter and Linda Clotfelter, husband and wife V Carlisle Country Club 1 ORDER OF COURT AND NOW, February 16, 2005, by agreement of counsel, the above captioned case is hereby continued from the March 14, 2005 trial term. Counsel is directed to relist the case when ready. ,,James R. Ronca, Esquire For the Plaintiff ruy H. Brooks, Esquire For the Defendant Court Administrator jhk IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2617 CIVIL TERM By the Court, Geor IEIAO-ffewr, VP-J. o a-i6 -0.5 ty ?Lk Y .. '- a MAR-28-05 03:17PM FROM-SCHMIDT,RONCA 8 KRAMER PC T17 232 6467 T-834 P.002/002 F-923 PRAECIPE FOR LIS'T'ING CASE FOR TRIAL TO IME PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X? for JURY trial at the next term of civil court ( ) for trial without a jury CASE RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. ( ) Assumpsit () Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil Tho trial list will be culled on April 19, 2005. Trials commcrim =May 16, 2005. Pre-trials will be held on April 27, 2005. (Briefs are due 5 days before pra-trials.) (The party listing this ease for trial shall providc forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 R. Ronca, $squire J .D Attorney for Plaintiffs Date: March 28, 2005 rn ?? .ate ca cai m ,. til Cl- ti- N f ? g'Y Guy H. Brooks, Esquire I.D. No. 49672 David M. Steckel, Esquire I.D. No. 82340 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant RICHARD CLOTFELTER and LINDA : IN THE COURT OF COMMON PLEAS CLOTFELTER, husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 00-2617 V. CIVIL ACTION -LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2005, upon consideration of Defendant's Motion for Summary Judgment and Plaintiffs Response thereto, it is hereby Ordered that the Motion is GRANTED. BY THE COURT: J. Guy H. Brooks, Esquire I.D. No. 49672 David M. Steckel, Esquire I.D. No. 82340 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT, CARLISLE COUNTRY CLUB Defendant, Carlisle Country Club ("Defendant' or the "Country Club"), by and through its counsel, Goldberg, Katzman, P.C., files the herein Motion for Summary Judgment, and in support thereof avers as follows: In or around 1990, Plaintiff, Richard Clotfelter, began participating in the sport of golf. (Clotfelter Dep. (Exh. A), p. 3) 2. In the fall of 1997, Plaintiff and his wife, Linda, became interested in joining the Country Club. (Clotfelter Dep. (Exh. A), p. 10) Prior to deciding whether to join the Country Club, Plaintiff was given a tour of the golf course, driving range, and the other facilities offered by Defendant. (Clotfelter Dep. (Exh. A), p. 10) Y 4. In October of 1997, Plaintiff and his wife became members of Defendant. (Clotfelter Dep. (Exh. A), pp. 10-12) 5. After Plaintiff became a member, he used the driving range on several occasions prior to the incident on May 24, 1998. (Clotfelter Dep. (Exh. A), p. 11) 6. He also played golf approximately twice a week on the same course between October 1997 and May 1998. (Clotfelter Dep. (Exh. A), p. 6) 7. On May 24, 1998, seven (7) months after he became a member of the Country Club, Mr. Clotfelter was golfing on a hole adjacent to the driving range. (Cmpl. 16) 8. According to Mr. Clotfelter, a ball, struck by an unidentified golfer, crossed into the first fairway and hit him in the eye. (Cmpl. 16) 9. The incident occurred while he was standing approximately halfway down the first fairway waiting for another member of his foursome to hit. (Cmpl. ¶ 6) 10. The Complaint in this matter was filed in April 2000. 11. Defendant filed its Answer with New Matter on June 15, 2000. 12. Plaintiff then filed his Reply to New Matter on June 21, 2000. 13. On July 22, 2003, the parties attempted to resolve this dispute through mediation. 14. Inasmuch as the essential discovery in this case is completed and the case is set for trial in May 2005, this matter is now ripe for Defendant's Motion for Summary Judgment. 2 r 15. Pursuant to Pa.R.C.P. No. 1035.2(2): After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any parry may move for summary judgment in whole or in part as a matter of law (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to ajury. 16. The purpose of Pa.R.C.P. No. 1035.2 "is to eliminate cases prior to trial where a parry cannot make out a claim or a defense after relevant discovery has been completed," Pa.R.C.P. No. 1035.1 explanatory comment; see also Curran v. Children's Serv. Ctr., 396 Pa. Super. 29, 33, 578 A.2d 8, 9 (1990) ("Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality"). 17. The defendant may move for summary judgment, and thereby terminate the litigation, where it "can show, by affidavits, depositions, discovery or other supplementary procedures that ... there is no issue on which the plaintiff has a right to trial, and that the affirmative defenses pleaded are conclusive ...." Rube v. Kroger Co., 425 Pa. 213, 216, 228 A.2d 750, 751 (1967). 18. The non-movant cannot survive a motion for summary judgment unless it "come [s] forth with evidence showing the existence of the facts essential to the cause of action or defense." Pa.R.C.P. No. 1035.2 note. 3 19. Plaintiff testified in his deposition that, prior to the incident on May 24, 1998, all of the following were true: (1) He had been golfing for approximately eight (8) years; (Clotfelter Dep. (Exh. A), p. 4) (2) Prior to becoming a member of the Carlisle Country Club, he was given a tour of the golf course and the facilities. On that tour he was also shown the driving range; (Clotfelter Dep. (Exh. A), pp. 9-10) (3) He became a member of the Carlisle Country Club in October 1997 and golfed at the facility between once and twice a week (which amounts to between 33-66 rounds of golf between the date he became a member and the date he was injured); (Clotfelter Dep. (Exh. A), pp. 6,10) (4) While a member of the Club, Plaintiff believes he may have used the driving range approximately 12 times during the fall of 1997; (Clotfelter Dep. (Exh. A), p. 11) (5) He has witnessed injuries to other individuals who were struck by errant golf balls; (Clotfelter Dep. (Exh. A), p. 24) and (6) He understood that from time to time golf balls will stray from one fairway to another on a golf course. (Clotfelter Dep. (Exh. A), p. 24) 20. It is undisputed that Plaintiff was a member of the Country Club who had golfed on the course many times prior to the incident, and also that he was an experienced golfer who was fully aware of the risk of being struck by an errant golf ball while on 4 the course. 21. The "no duty" rule, which "recognizes that there are certain inherent risks assumed by spectators or patrons when viewing sporting events or participating in amusements against which the amusement facility has no duty to protect," Telega v. Security Bureau, Inc., 719 A.2d 372, 375, 1998 Pa. Super. LEXIS 2990 (1998), compels the finding that Defendant did not owe Plaintiff a duty of care to protect him from the injury he sustained. 22. Being struck by a golf ball while golfing on a golf course is an inherent risk that has been found to be covered by the "no duty" rule. See Benjamin v. Nernberg, 102 Pa. Super. 471, 157 A.10 (1931). 23. A finding that Defendant owed Plaintiff no duty in this case is especially appropriate considering the fact that Plaintiff voluntarily and knowingly j oined the Country Club after fully evaluating the facilities, particularly the golf course and driving range, and after being satisfied that this was his private club of choice; additionally, at no time during his membership prior to May 24,1998 did Plaintiff voice any objection to, or suggest and changes to, the golf course or driving range at the Country Club. (Clotfelter Dep. (Exh. A), p. 12). 24. The case law in Pennsylvania is clear that persons who are injured while either on the field of play, like Plaintiff in this case, or even in a viewing area which nevertheless carries an inherent risk of being struck by a ball, cannot recover against the facility because they were not owed a duty of care. See Jones v. Three Rivers Management 5 Corp., 483 Pa. 75, 394 A.2d 546 (1978); Pestalozzi v. Philadelphia Flyers, Ltd., 394 Pa. Super. 420, 576 A.2d 72 (1990); Bowser v. Hershey Baseball Assoc., 357 Pa. Super. 435, 516 A.2d 61 (1986). 25. Even the cases which have found that there exists such a duty present a compelling reason to grant Defendant's Motion. See Goode v. Benevolent and Protective Order of Elks, 213 Cal. App. 2d 189, 28 Cal. Rptr. 669 (1963)' (explaining the difference between the risk of being struck by a batted ball and a flying baseball bat, and holding that a spectator assumes the risk of being hit with a batted ball because it is a matter of "'common knowledge' that fly balls are a common, frequent and expected occurrence in [baseball], and it is not a matter of `common knowledge' that flying baseball bats are common, frequent or expected."); see also Telega, supra (finding that it was neither a foreseeable nor an inherent risk that the plaintiff, a season ticket holder of the Pittsburgh Steelers, would be trampled by a group of fans pursuing a souvenir football that sailed over the net behind the goal posts and into the plaintiff s hands). 26. The cases of Telega and Goade support Defendant's argument in favor of granting summary judgment because they clearly point out the distinction between risks which are inherent, common and foreseeable in a particular game, like those sustained by Plaintiff on May 24, 1998, and those which are not. ' The Supreme Court of Pennsylvania referred to this case in its opinion in Jones, supra. 6 27. This case is analogous to a warranty case where a buyer purchases a product "as is" and after fully inspecting it. Invariably, the individual who purchases the product after having notice of the product's qualities - good or bad - will be precluded from recovering against the seller on a breach of warranty theory because damages are not recoverable for harm that the plaintiff should have foreseen and could have reasonably avoided. See Evelyn G. Frederick Health Center v. G. R. Sponaugle & Sons, Inc., 30 Pa. D. & C.3d 634, 637 (C.P. Dauphin Co. Dec. 8,1982); Restatement (Second) of Contracts, § 350. 28. In addition to the fact that the "no duty" rule bars Plaintiff from recovering in this case, Defendant respectfully submits that Plaintiff's claim should be barred by the doctrines of waiver, see Hess v. Gebhard & Co., Inc., 2001 PA Super 65, 769 A.2d 1186 (2001), appeal granted, 566 Pa. 683, 784 A.2d 118, rev'd on other grounds, 570 Pa. 148, 808 A.2d 912 (2002), and equitable estoppel. See Zitelli v. Dermatology Educ. & Research Found., 409 Pa. Super. 219,597 A.2d 1173 (1991), aff'd in part, vacated in part, 534 Pa. 360, 633 A.2d 134 (1993). 29. Alternatively, and if the Court determines that Defendant did owe Plaintiff a duty to protect him from the type of injury he sustained, Defendant's Motion for Summary Judgment should nonetheless be granted pursuant to the doctrine of assumption of risk. 30. In Pennsylvania, assumption of risk may be implied from a plaintiff's conduct under the following standard: 7 [A] plaintiff who fully understands a risk of harm to himself .... caused by the defendant's conduct ... and who nevertheless chooses to enter or remain ... within the area of that risk, under circumstances that manifest a willingness to accept it, is not entitled to recover for harm within that risk. Fish v. Gosnell, 316 Pa. Super. 565, 575,463 A.2d 1042,1047 (1983); Restatement (Second) of Torts, § 496C (1965). 31. The facts of this case clearly indicate that Plaintiff was fully and completely aware of the risks inherent in the game of golf when he proceeded to golf on Defendant's course on May 24, 1998. 32. In 1967 case of Taylor v. Churchill Valley Country Club, 425 Pa. 266, 228 A.2d 768 (1967), the court held that the plaintiff failed to establish that the golf course at issue was defectively designed; more importantly, the court stated in dicta that the plaintiff was "precluded from recovering for an additional and even more important reason - [he] assumed the risk of the game." Id. at 270, 228 A.2d at 770. 33. In support of its holding, the court quoted as follows from the case of Schentzel v. Philadelphia Nat'l League Club, 173 Pa. Super. 179, 186-87, 96 A.2d 181, 185 (1953): "... We quote at length from Prosser on Torts at pages 383-384: `By entering freely and voluntarily into any relation or situation which presents obvious danger, the plaintiff may be taken to accept it, and to agree that he will look out for himself, and relieve the defendant of responsibility. Those who participate or sit as spectators at sports and amusements assume all the obvious risks of being hurt by roller coasters, flying balls, [citations omitted], fireworks explosions, or the struggles of the contestants. "The timorous may stay at home." [Cardozo, C.J., in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173.] ..." Taylor, 425 Pa. at 270, 228 A.2d at 770; see also Benjamin v. Nernberg, supra (stating that golfers generally "assume all of the ordinary dangers incident to the game."); Getz v. Freed, 377 Pa. 480, 105 A.2d 102 (1954) (recognizing that every golfer "knows that every star sometimes, and every "dub" ofttimes, hooks or slices, and that when he is playing on a parallel hole or on a parallel area of ground he may be struck by a wild shot."). 34. Finally, the case of Boynton v. Ryan, 270 F.2d 70, 71 (1958) involved a golfer who was inadvertently struck by an errant ball while golfing on the course; the United States Court of Appeals for the Third Circuit, in affirming the decision of the trial court stated the following: .....plaintiff went into a game, where, unless one has a private golf course of one's own, there is always a danger of being hit by a stray ball. Even the best of golfers is sometimes painfully surprised to see a hoped for straight shot slice into the woods. Or vice versa, a hook may land the ball in the rough on the left side of the fairway. Plaintiff knew all of this, of course; every golfer does and plaintiff had been a golfer for ten years. His situation is not unlike that of a spectator who sits in the bleachers at a baseball game and is hit by a foul ball. The risk of being so hit, with a chance to catch the foul and keep the ball, is one of the exciting thrills of attendance at the game. The fan cannot recover if the ball hits him instead of his catching it. See Schentzel v. Philadelphia National League Club, 1953, 173 Pa. Super. 179, 96 A.2d 181; Hoke v. Lykens School Dist., C.P. 1948, 60 Dauph. Co. 226, 69 Pa. Dist. and Co. R. 422. n2. We think the same principle applies to participants or spectators in every form of sport where some danger of physical injury is involved. WHEREFORE, for all of the above reasons Defendant respectfully requests that the Court grant the instant Motion for Summary Judgment and dismiss the case at this juncture. Respectfully submitted, GOLDBERG KATZZMAN, P.C. By ` Guy ')4. Brooks, Esquire I.D o. 49672 David M. Steckel, Esquire I.D. No. 82340 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Date: `1 1) *5 120950.1 10 ORIGINAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, CIVIL ACTION - LAW Plaintiffs V. No. 00-2617 CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED DEPOSITION OF BEFORE: RICHARD CLOTFELTER JAMIE F. HACKMAN, RPR/RMR NOTARY PUBLIC DATE: MAY 21, 2001, 10:40 A.M. PLACE: SCHMIDT, RONCA & KRAMER, P.C. 209 STATE STREET HARRISBURG, PENNSYLVANIA APPEARANCES: JAMES R. RONCA, ESQUIRE SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 For - Plaintiffs GUY H. BROOKS, ESQUIRE GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 For - Defendant ALSO PRESENT: LINDA CLOTFELTER Aarkman r niit t Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 2 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 2-1 I N D E X S WITNESS EXAMINED BY PAGE 6 RICHARD CLOTFELTER MR. BROOKS 3 i LINDA CLOTFELTER MR. BROOKS 32 i RICHARD CLOTFELTER MR. BROOKS 33, 53 7 RICHARD CLOTFELTER MR. RONCA 48 3 3 3 Y J J 1 2 3 4 5 Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 i1 1 4 L A How old am I now? d Q Right. 3 A 38. 1 Q So you took up the game at around 27, age 5 27? 5 A 1990, with the math. 7 Q All right. What prompted you to take up 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 golf? 9 A Probably the lack of body cooperation to play baseball. My knees are shot. L MR. BROOKS: Off the record. 2 (Discussion held off the record.) 3 BY MR. BROOKS: 4 Q So your knees having deserted you, you 5 decided to take up golf. 5 A Correct. 7 Q Did you take lessons when you started? B A No, I did not. 9 Q Okay. Were you living in Mechanicsburg 0 when you took up golf? 1 A I had played prior to moving here, yes. 2 Q Where did you move from? 3 A Richfield in Pennsylvania. 4 Q Okay. You moved from Richfield to 5 Mechanicsburg? Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 i 6 1 Silver Spring, also with Heather Kuzmich at Silver 2 Spring, and also Paul at the Carlisle Country Club. 3 Q Okay. Do you have a handicap now? 1 A Yes. 5 Q What's your handicap? S A 16 prior to joining. 7 Q Prior to joining the Carlisle Country 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 Club? 9 A Yes. ] Q What is your recollection about how 1 frequently you used to play? 2 A Probably twice a week. 3 Q Did you have a regular foursome that you 1 played with? 5 A Not per se. We had a regular group which 5 may consist of 12 to 16 players. 7 Q All members of Silver Spring? 3 A Silver Spring does not have membership. 9 It is a public course. It was just the same group 9 played about the same time. 1 Q Were these folks you knew from work? 2 A No, friends I had met through various 3 occupations. 4 Q Do you continue to play with them at all? 5 A Yes. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 i °. 9 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 L Q Okay. 2 A Herb Hoffler, to name a few. 3 Q Okay. How did you happen to select the 4 Carlisle C ountry Club? 5 A We had heard about it throug h friends, 6 and there was a group of us going to join at the same 7 time, prim arily due to it was financially appealing to 3 us at the time. 3 Q There were other people that you were J joining wi th who were friends from Silver Spring? L A Who were friends, yes. 2 Q Who were the people in that group that 3 you joined with? 4 A Doug Erney and Chris Hakel. 5 Q Is that a male or a female, Chris Hakel? 6 A Chris Hakel would be a male. 7 MR. BROOKS: Off the record. 8 (Discussion held off the rec ord.) 9 BY MR. BROOKS: 0 Q Had you played the Carlisle Country Club 1 before you applied for membership? 2 A No, I had not. 3 Q Did you familiarize yourself with the 4 course at all before you applied? 5 A We were given a tour of the course by Mr. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 1 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 11 Curtis via a golf cart. >. Q Were you shown all the facilities prior 3 to joining? 1 A To the best of my knowledge, yes. 5 Q And by that I mean the pool, the 5 clubhouse, the dining room, etcetera? 7 A Correct. 3 Q Were you shown the driving range before? a A Just shown where it was, you know , as we were tourin g the course. 1 Q Do you recall the first time when you ? played the Carlisle Country Club? 3 A Not specifically. It would be in the & August or, excuse me, the October time frame. 5 Q Okay. Sometime shortly after you joined? 5 A Correct. 7 Q And do you remember when you took lessons 3 with the pr os there? Was that in the fall of 197 9 also? 0 A No, I don't believe so. I don't believe 11that the lessons at Carlisle were during that time 2 frame. 3 Q In the fall of 1997, do you remember how 4 many times you used the driving range? 5 A No. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 Q would it have been more than a dozen? ? A I find that doubtful for the simple 3 reason I do not like hitting off the artificial mats. L Q Okay. i A I find it to be more of a hinderance. 3 Q I'm thinking back. In 1997, weren't they 7 still using the grass tees in front of the mats? 3 A I don't recall. a Q Okay. So you would think that you used it fewer than a dozen times? L A Yes. > Q That fall? 3 A (Nods head up and down.) I Q Okay. Now, the date of this accident was 5 May 24th, 1998. 3 A Correct. 7 Q Prior to that accident, can you recall 3 how many times you had gone out to play? a A Not specifically. Q Is it correct that you had been out to 1 play before that tournament? 2 A Correct. 3 Q Do you believe you were still playing at 4 your once or twice a week frequency? 5 A Weather dependent, certainly, over the Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 Llwinter months. 3 Q When do you tend to start playing? 3 A I play year-round. L Q A zealot. Do you recall using the 5 driving range in the spring, before the tournament? i A Not specifically. 7 Q In the occasions that you used the 3 driving range from the time you joined until the 3 accident, did you ever complain to the pro about any ) aspect of how the driving range was being used? L A No. ? Q Did you ever complain to him about how it 3 was designed? 1 A No. 5 Q During the times that you played on the 5 golf cours e prior to the accident, did you ever talk 7 to the pro or the greens supervisor about any aspect 3 of design of the course? 3 A No. Q Now, do you know what the range balls 1 look like? 2 A Yes. 3 Q Do you know what color they are? 4 A Yes. 5 Q What color are they? Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 L A Yellow. ? Q Is it fair to say that you have seen 3 range balls on the No. 1 fairway while you were t playing? 5 A Prior to the incident, no, that would not be a fair assumption. 7 Q Just so I'm clear about this, you've 3 never seen a range ball on the No. 1 fairway in any 3 occasion that you've played? A Prior to getting hit? L Q Prior to the incident. ? A To the best of my knowledge, no. 3 Q Since the incident, have you seen range L balls over there? 5 A Yes. 5 Q Do you recall with what frequency you've 7 seen range balls? 3 A No. 3 Q Do you recall the rules regarding the No. 7 1 hole and the driving range that were in the 1 handbook? 2 MR. RONCA: At what time? 3 MR. BROOKS: At the time he was a 4 member. 5 MR. RONCA: So, in October -- uarkman rnvrt. Renortina Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 4 MR. BROOKS: -- 1997, when he joined. 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 MR. RONCA: Okay. 3 A No, I do not. 6 BY MR. BROOKS: 5 Q Do you recall whether there were, in fact, any rules? 7 A I have since learned of rules. 3 Q What rules have you learned? 9 A That the people on the driving range are ) to yield right-of-way to those on the course at No. 1. L Q During the times that you used the driving range, did you ever see a ball hit onto the 3 first fairway? 1 A No, I had not. 5 Q Did you, yourself, ever hit a ball onto 5 the first fairway? 7 A To the best of my knowledge, no. 3 Q Was there netting or no netting at the 3 time you joined? A There was netting present. L Q Did you ever see balls hit into the 2 netting on the left side of the range? 3 A On the left side, no. & Q Did you ever see balls hit into the trees 5 on the left side of the driving range? Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 24 A Not as a member -- excuse me -- of my 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 ?1 foursome. 3 Q Have you ever seen someone who is a 1 member of another foursome hit by a golf ball? 5 A Excuse me. I've seen after the fact. S I've never seen the direct impact. In other words, I 7 was shown a bruise or something to that effect. 3 Q So you know that golf balls will stray 3 from time to time from one fairway to another? A Yes. L Q What's your understan ding about the ? precautions a golfer should take when they're on the 3 golf course? 1 MR. RONCA: Relating to? i MR. BROOKS: Golf balls. 5 MR. RONCA: Okay. 7 MR. BROOKS: That's all right. 3 A It is my understanding that any shot that 3 may bring another player into danger, you should holler "fore" as an audible warning. 1 BY MR. BROOKS: 2 Q What's the responsibility of golfers who 3 are at the other end of the golf shots? 4 A I'm not sure I understand the question. 5 Q Well, I understand what you're saying Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Scott B. Cooper, Esquire James R, Ronca, Esquire Schmidt, Ronca & Kramer 209 State Street Harrisburg, PA 17101 GOLDBERG KATZMAN, P.C. By -Glenda J. Ebersole, 4 Legal Secretary for Guy H. Brooks, Esquire I.D. No. 49672 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Date: iR?? (717) 234-4161 ?.6 _il 4T RICHARD CLOTFELTER AND LINDA CLOTFELTER, HUSBAND AND WIFE, Plaintiffs v CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-2617 CIVIL TERM IN RE: CASE STRICKEN FROM CIVIL LIST ORDER OF COURT AND NOW, this 19th day of April, 2005, in the matter of Clotfelter versus Carlisle Country Club, counsel for the Plaintiff in the person of Todd Getgen, Esquire, having appeared in court at the call of the list and indicated that this matter, without objection on the part of the Defendant in the person of Guy H. Brooks, Esquire, should be stricken from the trial list, and having further indicated that there is a pending motion for summary judgment outstanding, the case of Clotfelter versus Carlisle Country Club is stricken from the trial list, and counsel are directed to relist it for trial at such time as they deem appropriate. ? Odd D. Getgen, Esquire 209 State Street Harrisburg, PA 17101 For the Plaintiffs ,Xy H. Brooks, Esquire V320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Court Administrator :mae By the Court, dd -r?P W,1? p r, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) RICHARD CLOTFELTER and LINDA CLOTFELTER Vs. CARLISLE COUNTRY CLUB (Plaintiff) (Defendant) No. 00-2617 Civil 19 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for Plaintiff: Scott B. Cooper, Esquire Address: Schmidt, Rouca 6 Kramer 209 State Street Harrisburg, PA 17101 (b) for defendant: Address: Guy H. Brooks, Esquire Goldberg'-Katzman, PC P.O. Box 1268 Harrisburg, PA 17108-1268 3. I will notify all parties in writing within two days that this case has been listed for argment. 4_ Argument Court Date: June 1, 2005 Dated: ri I LA A I OLD Atto ey for Defendant -6 ? Guy H. Brooks, Esquire CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Scott B. Cooper, Esquire James R. Ronca, Esquire Schmidt, Ronca & Kramer 209 State Street Harrisburg, PA 17101 GOLDBERG KATZMAN, P.C. Dater /q 0 C5 By_ " 6 Glenda J. Eberso e. Legal Secretary for Guy H. Brooks, Esquire I.D. No. 49672 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 ??.... ., ?7 b Q r_ ~? c?si -f! - - ? I ?? -, ` °' `? ?? ; r P '?_ ?. ??7 e?, CV ?.C3 1 ? .'? ??? r' r t RICHARD CLOTFELTER AND LINDA CLOTFELTER, PLAINTIFFS V. CARLISLE COUNTRY CLUB, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-2617 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this 1?0 day of June, 2005, the motion of defendant for summary judgment, IS DENIED. By tie Court-,/" Edgar James R. Ronca, Esquire For Plaintiff Guy H. Brooks, Esquire 4 For Defendant A" :sal _?_ C ?O t..7 W .. y : i.u L.L. ? ..} ?7 cv c,a RICHARD CLOTFELTER AND LINDA CLOTFELTER, PLAINTIFFS V. CARLISLE COUNTRY CLUB, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-2617 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 16, 2005:-- There is evidence in the record to support the following. On October 20, 1997, plaintiff, Richard Coltfelter, became a paying, non-voting member of defendant, Carlisle Country Club. On May 24, 1998, plaintiff started a round of golf with a foursome in a tournament at the Club. The first hole, approximately four hundred yards, is parallel to a driving range. Plaintiff hit a drive near the center of the first fairway and went to the ball approximately 200 yards from the first green. He was standing just to the right of the center of the fairway waiting for a playing partner to hit when a ball, hit from the driving range, struck him in the left eye causing serious injury. Until the time of the accident, plaintiff played golf at the Club approximately twice a week since becoming a member. He had used the driving range approximately twelve times. The golf course was designed in 1924. A driving range was installed in the 1940's. At the time of the accident there was netting 20 feet high and 50 yards long along the left side of the driving range adjacent to the first fairway. Scattered trees were adjacent to the net. Officials at the Country Club were aware that balls hit on the driving range sometimes went onto the first hole, sometimes struck golfers, and sometimes injured golfers. 00-2617 CIVIL TERM Plaintiff instituted this suit in negligence seeking recovery for the injuries he incurred from being struck by the ball hit from the driving range on May 24, 1998. Defendant filed a motion for summary judgment which was briefed and argued on June 1, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for examining a motion for summary judgment. A court: [m]ust view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992).... In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Defendant frames the issues as follows: Should defendant be found not liable as a matter of law under the "no duty" rule because it did not have a duty to warn plaintiff, who knowingly and voluntarily became a member of the defendant Country Club and who was an experienced golfer, of an obvious hazard which was known to and appreciated by plaintiff? In the alternative, should defendant's motion for summary judgment be granted under the doctrine of assumption of risk because plaintiff, who was fully aware of and, indeed, approved of, the design of defendant's golf course and driving range, and in addition was aware of the risk of being struck by an errant golf ball, made a conscious decision to golf despite his knowledge and appreciation of that risk? In Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002), the Superior Court of Pennsylvania set forth the duty owed to a business invitee by a possessor of land. It is the highest duty owed to any entrant upon land, and exits if, but -2- 00-2617 CIVIL TERM only if, the property owner: (a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. In Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination. Howell v. Clyde, 533 Pa. 151, 160-64, 620 A.2d 1107, 1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pa. Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howell. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases; rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. Gichner Sys. Group, 880 F.Supp. 311, 318 (M.D.Pa. 1995). "Howell states that the trial court is obligated to review the factual scenario and determine whether'[u]nder those facts.... the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113. This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries." Struble, 665 A.2d at 6, citing Long v. Noniton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995), appeal denied, 544 Pa. 611, 674 A.2d 1074 (1996) (emphasis in Struble). As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific -3- I. 00-2617 CIVIL TERM risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at 162, 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id. The Howell court noted that "[u]nder this approach ... assumption of the risk would no longer be part of the jury's deliberations or instructions." Id. (Emphasis added.) (Footnotes omitted.) The plaintiff in Jones v. Three Rivers Management Corp., 483 Pa. 75 (1978), was attending a professional baseball game at Three Rivers Stadium in Pittsburgh when he was struck by a ball that was hit during batting practice. The accident occurred when the plaintiff was standing in an interior concourse near a pedestrian opening. Plaintiff was awarded a verdict at trial. The Superior Court of Pennsylvania reversed, but the Supreme Court of Pennsylvania reversed the Superior Court and reinstated the verdict. The Supreme Court stated: [M]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and [baseball] players will bat balls into the grandstand. But even in a "place of amusement" not every risk is reasonably expected. The rationale behind the rule that the standard of reasonable care does not impose a duty to protect from those risks associated with baseball, naturally limits its application to those injuries incurred as a result of risks any baseball spectator must and will be held to anticipate.... "no-duty" rules, apply only to risks which are "common, frequent and expected," ... and in no way affect the duty of theatres, amusement parks and sports facilities to protect patrons from foreseeably dangerous conditions not inherent in the amusement activity. The central question, then, is whether appellant's case is governed by the "no-duty" rule applicable to common, frequent and expected risks of baseball or by the ordinary rules applicable to all other risks which may be present in a baseball stadium. To settle this question, we must determine whether one who attends a baseball game as a spectator can properly be charged with -4- I 00-2617 CIVIL TERM anticipating as inherent to baseball the risk of being struck by a baseball while properly using an interior walkway.... It ... cannot be concluded that recovery is foreclosed to appellant who was struck while standing in an interior walkway of Three Rivers Stadium. The Superior Court was in error when it extended to appellant, standing in this walkway, the no-duty rule applicable to patrons in the stands. The no- duty rule was improperly applied. (Footnote omitted.) (Emphasis added.) In Crews v. Seven Springs Mountain Resort, _ A.2d _, (2005 Pa. Super Lexis 899 April 18, 2005), the Superior Court of Pennsylvania reversed an order of a trial court granting a ski resort judgment on the pleadings. Appellant, while skiing, was allegedly struck from behind by an underage snowboarder who was under the influence of alcohol. Appellant pleaded that the underage drinking had started earlier in the evening, and had also occurred on prior occasions at the resort, such that appellee was on notice of same. The issue was whether appellant assumed the risk of being struck by an underage snowboarder who was under the influence of alcohol. Noting that assumption of risk does not apply unless the injury suffered resulted from a risk "inherent in the activity," the court held that "The risk allegedly encountered instantly by Appellant is not one inherent to skiing." "A person who plays golf assumes some risks of the game." (Emphasis added.) Getz v. Freed, 377 Pa. 480 (1954). See also, Tomkins v. Long, 52 Cumberland L.J. 126 (2003). Applying the analysis in Jones and Crews in the case sub judice, we conclude that any risk to plaintiff, while playing on the first hole of the Country Club, from being struck by a ball hit from the driving range, a place where multiple golfers hit buckets of balls, is not a risk inherent in the game of golf. Unlike the risk of being struck by an errant shot of another player, it is a risk that can be removed without alternating -5- 00-2617 CIVIL TERM the fundamental nature of the game. On evidence in the record, defendant owed a duty to plaintiff as a business invitee. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this L?Q day of June, 2005, the motion of defendant for summary judgment, IS DENIED, By,the Cou Edgar B. Bayley, J. James R. Ronca, Esquire For Plaintiff Guy H. Brooks, Esquire For Defendant :sal -6- ?J jj?w a4,0- ;,ca, d, PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil court ( ) for trial without a jury ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. Date: L t (U ! o L l"X ? The trial list will be called on October 11, 2005. Trials commence on November 7, 2005. Pre-trials will be held on October 19, 2005. (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 dames R. Ronca, Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, I, Beth E. Steever, an employee of SCIIMMT, RONCA & KRAMER, P.C., do hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR TRIAL in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 A Dated: qj t Lo C o Beth E. Steever o o L o 'f7 VJ l; O I 0 9 0 r . #9 RICHARD CLOTFELTER and IN THE COURT OF COMMON PLEAS OF LINDA CLOTFELTER, CUMBERLAND COUNTY, PENNSYLVANIA Husband and Wife, Plaintiffs CIVIL ACTION - LAW V. CARLISLE COUNTRY CLUB, Defendant 00-2617 CIVIL TERM PRETRIAL CONFERENCE AND NOW, this 18th day of October, 2005, before Edgar B. Bayley, Judge, present for the plaintiffs was James R. Ronca, Esquire, and for the defendant, Guy H. Brooks, Esquire. On May 24, 1998, plaintiff, after hitting a golf shot on the first hole of the Carlisle Country Club, was standing to the right of the center of the fairway waiting for a playing partner to hit. A ball, hit from a driving range, struck him in the left eye causing injury He seeks general damages, and his wife, Linda, seeks consortium. Estimated time of trial is three days. Each party shall have four peremptory challenges. Defendant shall submit its golf professional, Chip Richter, to a deposition by plaintiff as a prerequisite for calling him as a witness at trial. Each party shall provide the trial judge at the commencement of trial proposed points for charge which can be modified or altered at the end of the in the case. By the Court, Edgar B. Bayley, J. James R. Ronca, Esquire For Plaintiffs Guy H. Brooks, Esquire For Defendant prs ov tJ - u tl CjJ vW - - - C ? d (?z RICHARD CLOTFELTER and LINDA CLOTFELTER, Husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PRODUCE To: Carlisle Country Club c/o Mr. Guy H. Brooks Goldberg Katzman 320 East Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 You are directed to produce the following: the original Carlisle Country Club Board of Governors and Golf Committee meeting minutes for the years 1994 through 2000 at Judge Bailey's Courtroom at the Cumberland County Courthouse on Monday, November 7, 2005 at 10:00 a.m. If you fail to produce the documents or things required by this Notice to Produce, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. By: Date: `6 /Z/ ??d0 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. Ja ' s ?. Ronca, Esquire Fa . 25631 9 State Street rrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiffs RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 2411, day of October, 2005, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing Notice To Produce by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA I£RAM R P.C. By: Shawn T. Peterson 209 State Street Harrisburg, PA 17101 (717) 232-6300 _ , 73, %c_ n, = :J ? w ° 3 41 PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil court ( ) for trial without a jury CAPTION OF CASE ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. The trial lia will be called on December 14, 2004 Trials commence on January 18, 2005. Pre-trials will be held on December 22, 2004 (Briefs are due 5 days before pre-trials.) (The parry listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 CARLISLE COUNTRY CLUB, Defendant No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. R. Ronca, :Esquire ev for Plaintiffs Date: 12-/ ?/Z,/ CERTIFICATE OF SERVICE AND NOW, this day of December, 2004, I, Beth E. Steever, an employee of SCHMIDT, RONCA & KRAMER, P.C., do hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR TRIAL in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 Beth E. Steever .40 Cz? C-1 8 Richard Clotfelter and Linda Clotfelter, Husband and Wife V Carlisle Country Club IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2617 CIVIL TERM ORDER OF COURT AND NOW, December 15, 2004, counsel having failed to call the above case for trial, the case is stricken from the January 18, 2005 trial term. Counsel is directed to relist the case when ready. James R. Ronca, Esquire For the Plaintiff Guy H. Brooks, Esquire For the Defendant Court Administrator By the Court, n- GborjC E. Hoffer, P.J. ,? i,-2 /t, y 1:4- jlk r'_ _ _ P yo ,,. .. _ i.?r x,.?s'` PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil court ( ) for trial without a jury ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. The trial list will be called on February 15, 2005. Trials commence on March 14, 2005. Pre-trials will be held on February 23, 2005. (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 CARLISLE COUNTRY CLUB, Defendant No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praccipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. R. Ronca, :Esquire ey for Plaintiffs Date: January 24, 2005 „i. CERTIFICATE OF SERVICE AND NOW, this 24 s day of January, 2005, I, Beth E. Steever, an employee of SCHMIDT, RONCA & KRAMER, P.C., do hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR TRIAL in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 Beth E. Steever N C i C, u. .. 'r? ?? :u. -??nv _? -?7 4J 13 Richard Clotfelter and Linda Clotfelter, husband and wife V Carlisle Country Club IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2617 CIVIL TERM ORDER OF COURT AND NOW, February 16, 2005, by agreement of counsel, the above captioned case is hereby continued from the March 14, 2005 trial term. Counsel ns directed to relist the case when ready. ,James R. Ronca, Esquire For the Plaintiff ruy H. Brooks, Esquire For the Defendant Court Administrator (') a-16-05 By the Court, A ao) Geor E offer, P.J. jhk MAR-28-05 03:17PM FROM-SCHMIDT,RONCA & KRAMER PC 717 232 6467 T-834 PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil ( ) for trial without a jury CAPTION OF CASE RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant The trial list will be called on April 19, 2 Trials cornmcn? on May 16, 2005. Pre-trials will be held on April 27, 2005. due 5 days before pre-trials.) (The parry listing this case for trial shall forthwith a copy of the praecipe to all co pursuant to local Rule 314.1 No. 00-2617 Civil Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA Indicate trial counsel for other parries if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. Jarif s R. Ronca, Esquire Attorney for Plaintiffs ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil .002/002 F-923 are 01 Date: March 28, 2005 ?Y ?? ??9_ 'G? H? t ?.. C"1 . ;:_; u"= U CJ c- y 1- Ca z cA _ Q ? ? ?, ti %? F-? ? ?r-? N tr Guy H. Brooks, Esquire I.D. No. 49672 David M. Steckel, Esquire I.D. No. 82340 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT, CARLISLE COUNTRY CLUB Defendant, Carlisle Country Club ("Defendant' or the "Country Club"), by and through its counsel, Goldberg, Katzman, P.C., files the herein Motion for Summary Judgment, and in support thereof avers as follows: In or around 1990, Plaintiff, Richard Clotfelter, began participating in the sport of golf. (Clotfelter Dep. (Exh. A), p. 3) In the fall of 1997, Plaintiff and his wife, Linda, became interested in joining the Country Club. (Clotfelter Dep. (Exh. A), p. 10) Prior to deciding whether to join the Country Club, Plaintiff was given a tour of the golf course, driving range, and the other facilities offered by Defendant. (Clotfelter Dep. (Exh. A), p. 10) 4. In October of 1997, Plaintiff and his wife became members of Defendant. (Clotfelter Dep. (Exh. A), pp. 10-12) 5. After Plaintiff became a member, he used the driving range on several occasions prior to the incident on May 24, 1998. (Clotfelter Dep. (Exh. A), p. 11) 6. He also played golfapproximately twice a week on the same course between October 1997 and May 1998. (Clotfelter Dep. (Exh. A), p. 6) 7. On May 24, 1998, seven (7) months after he became a member of the Country Club, Mr. Clotfelter was golfing on a hole adjacent to the driving range. (Cmpl. 16) 8. According to Mr. Clotfelter, a ball, struck by an unidentified golfer, crossed into the first fairway and hit him in the eye. (Cmpl. ¶ 6) 9. The incident occurred while he was standing approximately halfway down the first fairway waiting for another member of his foursome to hit. (Cmpl. ¶ 6) 10. The Complaint in this matter was filed in April 2000. 11. Defendant filed its Answer with New Matter on June 15, 2000. 12. Plaintiff then filed his Reply to New Matter on June 21, 2000. 13. On July 22, 2003, the parties attempted to resolve this dispute through mediation. 14. Inasmuch as the essential discovery in this case is completed and the case is set for trial in May 2005, this matter is now ripe for Defendant's Motion for Summary Judgment. 2 15. Pursuant to Pa.R.C.P. No. 1035.2(2): After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 16. The purpose of Pa.R.C.P. No. 1035.2 "is to eliminate cases prior to trial where a party cannot make out a claim or a defense after relevant discovery has been completed." Pa.R.C.P. No. 1035.1 explanatory comment; see also Curran v. Children's ServCtr., 396 Pa. Super. 29, 33, 578 A.2d 8, 9 (1990) ("Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality"). 17. The defendant may move for summaryjudgment, and thereby terminate the litigation, where it "can show, by affidavits, depositions, discovery or other supplementary procedures that ... there is no issue on which the plaintiff has a right to trial, and that the affirmative defenses pleaded are conclusive ...." Rube v. Kroger Co., 425 Pa. 213, 216, 228 A.2d 750, 751 (1967). 18. The non-movant cannot survive a motion for summary judgment unless it "come[s] forth with evidence showing the existence of the facts essential to the cause of action or defense." Pa.R.C.P. No. 1035.2 note. 3 19. Plaintiff testified in his deposition that, prior to the incident on May 24, 1998, all of the following were true: (1) He had been golfing for approximately eight (8) years; (Clotfelter Dep. (Exh. A), p. 4) (2) Prior to becoming a member of the Carlisle Country Club, he was given a tour of the golf course and the facilities. On that tour he was also shown the driving range; (Clotfelter Dep. (Exh. A), pp. 9-10) (3) He became a member of the Carlisle Country Club in October 1997 and golfed at the facility between once and twice a week (which amounts to between 33-66 rounds of golf between the date he became a member and the date he was injured); (Clotfelter Dep. (Exh. A), pp. 6,10) (4) While a member of the Club, Plaintiff believes he may have used the driving range approximately 12 times during the fall of 1997; (Clotfelter Dep. (Exh. A), p. 11) (5) He has witnessed injuries to other individuals who were struck by errant golf balls; (Clotfelter Dep. (Exh. A), p. 24) and (6) He understood that from time to time golf balls will stray from one fairway to another on a golf course. (Clotfelter Dep. (Exh. A), p. 24) 20. It is undisputed that Plaintiff was a member of the Country Club who had golfed on the course many times prior to the incident, and also that he was an experienced golfer who was fully aware of the risk of being struck by an errant golf ball while on 4 the course. 21. The "no duty" rule, which "recognizes that there are certain inherent risks assumed by spectators or patrons when viewing sporting events or participating in amusements against which the amusement facility has no duty to protect," Telega v. Security Bureau, Inc., 719 A.2d 372, 375, 1998 Pa. Super. LEXIS 2990 (1998), compels the finding that Defendant did not owe Plaintiff a duty of care to protect him from the injury he sustained. 22. Being struck by a golf ball while golfing on a golf course is an inherent risk that has been found to be covered by the "no duty" rule. See Benjamin v. Nernberg, 102 Pa. Super. 471, 157 A.10 (1931). 23. A finding that Defendant owed Plaintiff no duty in this case is especially appropriate considering the fact that Plaintiff voluntarily and knowingly joined the Country Club after fully evaluating the facilities, particularly the golf course and driving range, and after being satisfied that this was his private club of choice; additionally, at no time during his membership prior to May 24, 1998 did Plaintiff voice any objection to, or suggest and changes to, the golf course or driving range at the Country Club. (Clotfelter Dep. (Exh. A), p. 12). 24. The case law in Pennsylvania is clear that persons who are injured while either on the field of play, like Plaintiff in this case, or even in a viewing area which nevertheless carries an inherent risk of being struck by a ball, cannot recover against the facility because they were not owed a duty of care. See Jones v. Three Rivers Management 5 Corp., 483 Pa. 75, 394 A.2d 546 (1978); Pestalozzi v. Philadelphia Flyers, Ltd., 394 Pa. Super. 420, 576 A.2d 72 (1990); Bowser v. Hershey Baseball Assoc., 357 Pa. Super. 435, 516 A.2d 61 (1986). 25. Even the cases which have found that there exists such a duty present a compelling reason to grant Defendant's Motion. See Goode v. Benevolent and Protective Order of Elks, 213 Cal. App. 2d 189, 28 Cal. Rptr. 669 (1963)' (explaining the difference between the risk of being struck by a batted ball and a flying baseball bat, and holding that a spectator assumes the risk of being hit with a batted ball because it is a matter of"`common knowledge' that fly balls are a common, frequent and expected occurrence in [baseball], and it is not a matter of `common knowledge' that flying baseball bats are common, frequent or expected."); see also Telega, supra (finding that it was neither a foreseeable nor an inherent risk that the plaintiff, a season ticket holder of the Pittsburgh Steelers, would be trampled by a group of fans pursuing a souvenir football that sailed over the net behind the goal posts and into the plaintiff s hands). 26. The cases of Telega and Goode support Defendant's argument in favor of granting summary judgment because they clearly point out the distinction between risks which are inherent, common and foreseeable in a particular game, like those sustained by Plaintiff on May 24, 1998, and those which are not. ' The Supreme Court of Pennsylvania referred to this case in its opinion in Jones, supra. 6 27. This case is analogous to a warranty case where a buyer purchases a product "as is" and after fully inspecting it. Invariably, the individual who purchases the product after having notice of the product's qualities - good or bad - will be precluded from recovering against the seller on a breach of warranty theory because damages are not recoverable for harm that the plaintiff should have foreseen and could have reasonably avoided. See Evelyn G. Frederick Health Center v. G.R. Sponaugle & Sons, Inc., 30 Pa. D. & C.3d 634,637 (C.P. Dauphin Co. Dec. 8,1982); Restatement (Second) of Contracts, § 350. 28. In addition to the fact that the "no duty" rule bars Plaintiff from recovering in this case, Defendant respectfully submits that Plaintiff's claim should be barred by the doctrines of waiver, see Hess v. Gebhard & Co., Inc., 2001 PA Super 65, 769 A.2d 1186 (2001), appeal granted, 566 Pa. 683, 784 A.2d 118, rev'd on other grounds, 570 Pa. 148, 808 A.2d 912 (2002), and equitable estoppel. See Zitelli v. Dermatology Educ. & Research Found., 409 Pa. Super. 219, 597 A.2d 1173 (1991), aff'd in part, vacated in part, 534 Pa. 360, 633 A.2d 134 (1993). 29. Alternatively, and if the Court determines that Defendant did owe Plaintiff a duty to protect him from the type of injury he sustained, Defendant's Motion for Summary Judgment should nonetheless be granted pursuant to the doctrine of assumption of risk. 30. In Pennsylvania, assumption of risk may be implied from a plaintiffs conduct under the following standard: 7 [A] plaintiff who fully understands a risk of harm to himself .... caused by the defendant's conduct ... and who nevertheless chooses to enter or remain ... within the area of that risk, under circumstances that manifest a willingness to accept it, is not entitled to recover for harm within that risk. Fish v. Gosnell, 316 Pa. Super. 565, 575,463 A.2d 1042,1047 (1983); Restatement (Second) of Torts, § 496C (1965). 31. The facts of this case clearly indicate that Plaintiff was fully and completely aware of the risks inherent in the game of golf when he proceeded to golf on Defendant's course on May 24, 1998. 32. In 1967 case of Taylor v. Churchill Valley Country Club, 425 Pa. 266, 228 A.2d 768 (1967), the court held that the plaintiff failed to establish that the golf course at issue was defectively designed; more importantly, the court stated in dicta that the plaintiff was "precluded from recovering for an additional and even more important reason - [he] assumed the risk of the game." Id at 270, 228 A.2d at 770. 33. In support of its holding, the court quoted as follows from the case of Schentzel v. Philadelphia Nat'l League Club, 173 Pa. Super. 179, 186-87, 96 A.2d 181, 185 (1953): "... We quote at length from Prosser on Torts at pages 383-384: `By entering freely and voluntarily into any relation or situation which presents obvious danger, the plaintiff may be taken to accept it, and to agree that he will look out for himself, and relieve the defendant of responsibility. Those who participate or sit as spectators at sports and amusements assume all the obvious risks of being hurt by roller coasters, flying balls, [citations omitted], fireworks explosions, or the struggles of the contestants. "The timorous may stay at home." [Cardozo, C.J., in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173.] ..." Taylor, 425 Pa. at 270, 228 A.2d at 770; see also Benjamin v. Nernberg, supra (stating that golfers generally "assume all of the ordinary dangers incident to the game."); Getz v. Freed, 377 Pa. 480, 105 A.2d 102 (1954) (recognizing that every golfer "knows that every star sometimes, and every "dub" ofttimes, hooks or slices, and that when he is playing on a parallel hole or on a parallel area of ground he may be struck by a wild shot."). 34. Finally, the case of Boynton v. Ryan, 270 F.2d 70, 71 (1958) involved a golfer who was inadvertently struck by an errant ball while golfing on the course; the United States Court of Appeals for the Third Circuit, in affirming the decision of the trial court stated the following: .....plaintiff went into a game, where, unless one has a private golf course of one's own, there is always a danger of being hit by a stray ball. Even the best of golfers is sometimes painfully surprised to see a hoped for straight shot slice into the woods. Or vice versa, a hook may land the ball in the rough on the left side of the fairway. Plaintiff knew all of this, of course; every golfer does and plaintiff had been a golfer for ten years. His situation is not unlike that of a spectator who sits in the bleachers at a baseball game and is hit by a foul ball. The risk of being so hit, with a chance to catch the foul and keep the ball, is one of the exciting thrills of attendance at the game. The fan cannot recover if the ball hits him instead of his catching it. See Schentzel v. Philadelphia National League Club, 1953, 173 Pa. Super. 179, 96 A.2d 181; Hoke v. Lykens School Dist., C.P. 1948, 60 Dauph. Co. 226, 69 Pa. Dist. and Co. R. 422. n2. We think the same principle applies to participants or spectators in every form of sport where some danger of physical injury is involved. WHEREFORE, for all of the above reasons Defendant respectfully requests that the Court grant the instant Motion for Summary Judgment and dismiss the case at this juncture. Respectfully submitted, GOLDBERG KATZMAN, P.C. rooks, Es quire BY-4?.Do. 49672 David M. Steckel, Esquire I.D. No. 82340 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Date: ?-1f I??,,5 120950.1 10 ORIGINAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD CLOTFELTER and LINDA CLOTFELTER, husband and wife, CIVIL ACTION - LAW Plaintiffs V. No. 00-2617 CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED DEPOSITION OF BEFORE: DATE: PLACE: APPEARANCES: RICHARD CLOTFELTER JAMIE F. HACKMAN, RPR/RMR NOTARY PUBLIC MAY 21, 2001, 10:40 A.M. SCHMIDT, RONCA & KRAMER, P.C. 209 STATE STREET HARRISBURG, PENNSYLVANIA JAMES R. RONCA, ESQUIRE SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 For - Plaintiffs GUY H. BROOKS, ESQUIRE GOLDBERG, KATZMAN & SHIPMAN, 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 For - Defendant ALSO PRESENT: LINDA CLOTFELTER P. C. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 2 1 2 3 WITNESS & RICHARD CLOTFELTER 5 LINDA CLOTFELTER 6 RICHARD CLOTFELTER 7 RICHARD CLOTFELTER 1 1 1 1 1 1 1 1 1 1 2 2 2, 2. 2. 2'. 3 } 1 3 I N D E X EXAMINED BY PAGE MR. BROOKS 3 MR. BROOKS 32 MR. BROOKS 33, 53 MR. RONCA 48 macxman court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 4 1 A How old am I now? 2 Q Right. 3 A 38. 4 Q So you took up the game at around 27, age 5 27? 5 A 1990, with the math. 7 Q All right. What prompted you to take up 3 golf? 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 3 A Probably the lack of body cooperation to 3 play baseball. My knees are shot. 1 MR. BROOKS: Off the record. 2 (Discussion held off the record.) 3 BY MR. BROOKS: 1 Q So your knees having deserted you, you 5 decided to take up golf. 5 A Correct. 7 Q Did you take lessons when you started? 3 A No, I did not. 3 Q Okay. Were you living in Mechanicsburg J when you took up golf? L A I had played prior to moving here, yes. 2 Q Where did you move from? 3 A Richfield in Pennsylvania. & Q Okay. You moved from Richfield to 5 Mechanicsbu rg? Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 6 L Silver Spring, also with Heather Kuzmich at Silver ? Spring, and also Paul at the Carlisle Country Club. 3 Q Okay. Do you have a handicap now? L A Yes. 5 Q What's your handicap? i A 16 prior to joining. 7 Q Prior to joining the Carlisle Country 31 Club? 1 1 1 1 1 1 1 1 1 1 2 2 2: 2: 2, 2' 3 A Yes. Q What is your recollection about how L frequently y ou used to play? ? A Probably twice a week. 3 Q Did you have a regular foursome that you l played with? S A Not per se. We had a regular group which > may consist of 12 to 16 players. Q All members of Silver Spring? 3 A Silver Spring does not have membership. ) It is a publ ic course. It was just the same group ) played about the same time. Q Were these folks you knew from work? A No, friends I had met through various occupations. Q Do you continue to play with them at all? A Yes. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 9 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 L Q Okay. 2 A Herb Hoffler, to name a few. 3 Q Okay. How did you happen to select the I Carlisle Country Club? 5 A We had heard about it through friends, 5 and there was a group of us going to join at the same 7 time, primarily due to it was financially appealing to 3 us at the time. 3 Q There were other people that you were D joining with who were friends from Silver Spring? 1 A Who were friends, yes. 2 Q Who were the people in that group that 3 you joined with? 4 A Doug Erney and Chris Hakel. 5 Q Is that a male or a female, Chris Hakel? 6 A Chris Hakel would be a male. 7 MR. BROOKS: off the record. 8 (Discussion held off the record.) 91 BY MR. BROOKS: 0 Q Had you played the Carlisle Country Club 1 before you applied for membership? 2 A No, I had not. 3 Q Did you familiarize yourself with the 4 course at all before you applied? 5 A We were given a tour of the course by Mr. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 10 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 L Curtis via a golf cart. 2 Q Were you shown all the facilities prior 3 to joining? 1 A To the best of my knowledge, yes. Q And by that I mean the pool, the clubhouse, the dining room, etcetera? 7 A Correct. 3 Q Were you shown the driving range before? 3 A Just shown where it was, you know, as we ) were touring the course. 1 Q Do you recall the first time when you 2 played the Carlisle Country Club? 3 A Not specifically. It would be in the 4 August or, excuse me, the October time frame. 5 Q Okay. Sometime shortly after you joined? 5 A Correct. 7 Q And do you remember when you took lessons 9 with the pros there? Was that in the fall of '97 9 also? D A No, I don't believe so. I don't believe 1 that the lessons at Carlisle were during that time 2 frame. 3 Q In the fall of 1997, do you remember how 4 many times you used the driving range? 5 A No. Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 11 1 1 1 1 l 1 1 1 1 1 2 2 2 2 2 2 Q Would it have been more than a dozen? ? A I find that doubtful for the simple S reason I do not like hitting off the artificial mats. 6 Q Okay. 5 A I find it to be more of a hinderance. > Q I'm thinking back. In 1997, weren't they 7 still using the grass tees in front of the mats? 3 A I don't recall. Q Okay. So you would think that you used it fewer than a dozen times? L A Yes. 2 Q That fall? 3 A (Nods head up and down.) ! Q Okay. Now, the date of this accident was 5 May 24th, 1998. 5 A Correct. 7 Q Prior to that accident, can you recall 3 how many times you had gone out to play? 3 A Not specifically. Q Is it correct that you had been out to L play before that tournament? ? A Correct. 3 Q Do you believe you were still playing at L your once or twice a week frequency? 5 A Weather dependent, certainly, over the Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 12 Llwinter months. 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 ? Q When do you tend to start playing? 3 A I play year-round. L Q A zealot. Do you recall using the 5 driving range in the spring, before the tournament? A Not specifically. 7 Q In the occasions that you used the 3 driving range from the time you joined until the ) accident, did you ever complain to the pro about any aspect of how the driving range was being used? L A No. Q Did you ever complain to him about how it 3 was designed? I A No. 5 Q During the times that you played on the S golf course prior to the accident, did you ever talk 7 to the pro or the greens supervisor about any aspect 3 of design of the course? 3 A No. Q Now, do you know what the range balls L look like? 2 A Yes. 3 Q Do you know what color they are'? 1 A Yes. S Q What color are they? Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 13 1 1 1 1 l 1 1 1 1 1 2 2 2 2 2 2 A Yellow. Q Is it fair to say that you have seen range balls on the No. 1 fairway while you were playing? A Prior to the incident, no, that would not > be a fair assumption. Q Just so I'm clear about this, you've 3 never seen a range ball on the No. 1 fairway in any occasion that you've played? A Prior to getting hit? L Q Prior to the incident. A To the best of my knowledge, no. 3 Q Since the incident, have you seen range L balls over there? i A Yes. i Q Do you recall with what frequency you've 7 seen range balls? 3 A No. Q Do you recall the rules regarding the No. 1 hole and the driving range that were in the handbook? ? MR. RONCA: At what time? 3 MR. BROOKS: At the time he was a 11 member . 31 MR. RONCA: So, in October -- Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BROOKS: -- 1997, when he joined. MR. RONCA: Okay. A No, I do not. BY MR. BRO OKS: Q Do you recall whether there were, i n fact, any rules? A I have since learned of rules. Q What rules have you learned? A That the people on the driving rang e are to yield r ight-of-way to those on the course at No. 1. Q During the times that you used the driving ra nge, did you ever see a ball hit onto the first fair way? A No, I had not. Q Did you, yourself, ever hit a ball onto the first fairway? A To the best of my knowledge, no. Q Was there netting or no netting at the time you j oined? A There was netting present. Q Did you ever see balls hit into the netting on the left side of the range? A On the left side, no. Q Did you ever see balls hit into the trees on the lef t side of the driving range? Hackman Court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 4 A Not as a member -- excuse me -- of my 21 foursome. 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 3 Q Have you ever seen someone who is a 4 member of another foursome hit by a golf ball? 5 A Excuse me. I've seen after the fact. 6 I've never seen the direct impact. In other words, I 7 was shown a bruise or something to that effect. 8 Q So you know that golf balls will stray 9 from time to time from one fairway to another? 3 A Yes. 1 Q What's your understanding about the 2 precaution s a golfer should take when they're on the 3 golf cours e? 4 MR. RONCA: Relating to? 5 MR. BROOKS: Golf balls. 6 MR. RONCA: Okay. 7 MR. BROOKS: That's all right. 3 A It is my understanding that any shot that 3 may bring another player into danger, you should ) holler "fo re" as an audible warning. L BY MR. BRO OKS: 2 Q What's the responsibility of golfers who 3 are at the other end of the golf shots? 1 A I'm not sure I understand the question. 5 Q Well, I understand what you're saying Hacxman court Reporting Service 152 Buchanan Drive, Ephrata, PA 17522 (717) 733-3382 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Scott B. Cooper, Esquire James R. Ronca, Esquire Schmidt, Ronca & Kramer 209 State Street Harrisburg, PA 17101 GOLDBERG KATZMAN, P.C. o /,J By lenda J. Ebersole, Legal Secretary for Guy H. Brooks, Esquire I.D. No. 49672 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Date: L.l'RI? (717) 234-4161 RICHARD CLOTFELTER AND LINDA CLOTFELTER, HUSBAND AND WIFE, Plaintiffs V CARLISLE COUNTRY CLUB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-2617 CIVIL TERM IN RE: CASE STRICKEN FROM CIVIL LIST ORDER OF COURT AND NOW, this 19th day of April, 2005, in the matter of Clotfelter versus Carlisle Country Club, counsel for the Plaintiff in the person of Todd Getgen, Esquire, having appeared in court at the call of the list and indicated that this matter, without objection on the part of the Defendant :ir the person of Guy H. Brooks, Esquire, should be stricken from the trial list, and having further indicated that there is a pending motion for summary judgment outstanding, the case of Clotfelter versus Carlisle Country Club is stricken from the trial list, and counsel are directed to relist it for trial at such time as they deem appropriate. odd D. Getgen, Esquire 209 State Street Harrisburg, PA 17101 For the Plaintiffs ,,X y H. Brooks, Esquire %'320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Court Administrator :mae r ? ?7 By the Court, ?.,' • 1 L'..) cC c., PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argiment Court. CAPTION OF CASE (entire caption must be stated in full) RICHARD CLOTFELTER and LINDA CLOTFELTER (Plaintiff) V5. CARLISLE COUNTRY CLUB (Defendant) No. 00-2617 Civil 19 ,1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for Plaintiff: Scott B. Cooper, Esquire Address: Schmidt, Ronca 6 Kramer 209 State Street Harrisburg, PA 17101 (b) for defendant: Address: Guy H. Brooks, Esquire Goldberg Katzman, PC P.O. Box 1268 Harrisburg, PA 17108-1268 $. I will notify all parties in writing within two days that this case has been listed for argument. 4. Arqumant Court Date: June 1, 2005 Dated: f On- Atto ey eDefendant `L Guy R. Brooks, Esquire CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Scott B. Cooper, Esquire James R. Ronca, Esquire Schmidt, Ronca & Kramer 209 State Street Harrisburg, PA 17101 GOLDBERG KATZMAN, P.C. Date:G By Glenda J. Ebersole; ' Legal Secretary for Guy H. Brooks, Esquire I.D. No. 49672 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 ?.o ? ' - c3 -i? r_n _? -Y III-- ' .. ., S ; C" `> _. ??i C_i P? _?i RICHARD CLOTFELTER AND LINDA CLOTFELTER, PLAINTIFFS V. CARLISLE COUNTRY CLUB, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-2617 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this 1N day of June, 2005, the motion of defendant for summary judgment, IS DENIED. By the Court, j Edgar James R. Ronca, Esquire For Plaintiff'' f Guy H. Brooks, Esquire For Defendant :sal oa - >; _ `% J .d.. ( :' r ) ?' u F- U e - ? ,??. , y G- ?Y" tl fllS ? ;mss 4 1" c (' ? _ j C? t? a RICHARD CLOTFELTER AND LINDA CLOTFELTER, PLAINTIFFS V. CARLISLE COUNTRY CLUB, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA 00-2617 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 16, 2005:-- There is evidence in the record to support the following. On October 20, 1997, plaintiff, Richard Coltfelter, became a paying, non-voting member of defendant, Carlisle Country Club. On May 24, 1998, plaintiff started a round of golf with a foursome in a tournament at the Club. The first hole, approximately four hundred yards, is parallel to a driving range. Plaintiff hit a drive near the center of the first fairway and went to the ball approximately 200 yards from the first green. He was standing just to the right of the center of the fairway waiting for a playing partner to hit when a ball, hit from the driving range, struck him in the left eye causing serious injury. Until the time of the accident, plaintiff played golf at the Club approximately twice a week since becoming a member. He had used the driving range approximately twelve times. The golf course was designed in 1924. A driving range was installed in the 1940's. At the time of the accident there was netting 20 feet high and 50 yards long along the left side of the driving range adjacent to the first fairway. Scattered trees were adjacent to the net. Officials at the Country Club were aware that balls hit on the driving range sometimes went onto the first hole, sometimes struck golfers, and sometimes injured golfers. 00-2617 CIVIL TERM Plaintiff instituted this suit in negligence seeking recovery for the injuries he incurred from being struck by the ball hit from the driving range on May 24, 1998. Defendant filed a motion for summary judgment which was briefed and argued on June 1, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for examining a motion for summary judgment. A court: [m]ust view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992).... In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Defendant frames the issues as follows: Should defendant be found not liable as a matter of law under the "no duty" rule because it did not have a duty to warn plaintiff, who knowingly and voluntarily became a member of the defendant Country Club and who was an experienced golfer, of an obvious hazard which was known to and appreciated by plaintiff? In the alternative, should defendant's motion for summary judgment be granted under the doctrine of assumption of risk because plaintiff, who was fully aware of and, indeed, approved of, the design of defendant's golf course and driving range, and in addition was aware of the risk of being struck by an errant golf ball, made a conscious decision to golf despite his knowledge and appreciation of that risk? In Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super, 2002), the Superior Court of Pennsylvania set forth the duty owed to a business invitee by a possessor of land. It is the highest duty owed to any entrant upon land, and exits if, but -2- 00-2617 CIVIL TERM only if, the property owner: (a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. In Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination. Howell v. Clyde, 533 Pa. 151, 160-64, 620 A.2d 1107, 1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pa. Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howell. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases; rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. Gichner Sys. Group, 880 F.Supp. 311, 318 (M.D.Pa. 1995). "Howell states that the trial court is obligated to review the factual scenario and determine whether'[u]nder those facts.... the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113. This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries." Struble, 665 A.2d at 6, citing Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995), appeal denied, 544 Pa. 611, 674 A.2d 1074 (1996) (emphasis in Struble). As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific -3- 00-2617 CIVIL TERM risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at 162, 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id. The Howell court noted that "[u]nder this approach ... assumption of the risk would no longer be part of the jury's deliberations or instructions." Id. (Emphasis added.) (Footnotes omitted.) The plaintiff in Jones v. Three Rivers Management Corp., 483 Pa. 75 (1978), was attending a professional baseball game at Three Rivers Stadium in Pittsburgh when he was struck by a ball that was hit during batting practice. The accident occurred when the plaintiff was standing in an interior concourse near a pedestrian opening. Plaintiff was awarded a verdict at trial. The Superior Court of Pennsylvania reversed, but the Supreme Court of Pennsylvania reversed the Superior Court and reinstated the verdict. The Supreme Court stated: (M]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and [baseball] players will bat balls into the grandstand. But even in a "place of amusement" not every risk is reasonably expected. The rationale behind the rule that the standard of reasonable care does not impose a duty to protect from those risks associated with baseball, naturally limits its application to those injuries incurred as a result of risks any baseball spectator must and will be held to anticipate.... "no-duty" rules, apply only to risks which are "common, frequent and expected," ... and in no way affect the duty of theatres, amusement parks and sports facilities to protect patrons from foreseeably dangerous conditions not inherent in the amusement activity. The central question, then, is whether appellant's case is governed by the "no-duty" rule applicable to common, frequent and expected risks of baseball or by the ordinary rules applicable to all other risks which may be present in a baseball stadium. To settle this question, we must determine whether one who attends a baseball game as a spectator can properly be charged with -4- 00-2617 CIVIL TERM anticipating as inherent to baseball the risk of being struck by a baseball while properly using an interior walkway.... It ... cannot be concluded that recovery is foreclosed to appellant who was struck while standing in an interior walkway of Three Rivers Stadium. The Superior Court was in error when it extended to appellant, standing in this walkway, the no-duty rule applicable to patrons in the stands. The no- duty rule was improperly applied. (Footnote omitted.) (Emphasis added.) In Crews v. Seven Springs Mountain Resort, `A.2d _, (2005 Pa. Super Lexis 899 April 18, 2005), the Superior Court of Pennsylvania reversed an order of a trial court granting a ski resort judgment on the pleadings. Appellant, while skiing, was allegedly struck from behind by an underage snowboarder who was under the influence of alcohol. Appellant pleaded that the underage drinking had started earlier in the evening, and had also occurred on prior occasions at the resort, such that appellee was on notice of same. The issue was whether appellant assumed the risk of being struck by an underage snowboarder who was under the influence of alcohol. Noting that assumption of risk does not apply unless the injury suffered resulted from a risk "inherent in the activity," the court held that "The risk allegedly encountered instantly by Appellant is not one inherent to skiing." "A person who plays golf assumes some risks of the game." (Emphasis added.) Getz v. Freed, 377 Pa. 480 (1954). See also, Tomkins v. Long, 52 Cumberland L.J. 126 (2003). Applying the analysis in Jones and Crews in the case sub judice, we conclude that any risk to plaintiff, while playing on the first hole of the Country Club, from being struck by a ball hit from the driving range, a place where multiple golfers hit buckets of balls, is not a risk inherent in the game of golf, Unlike the risk of being struck by an errant shot of another player, it is a risk that can be removed without alternating -5- 00-2617 CIVIL TERM the fundamental nature of the game. On evidence in the record, defendant owed a duty to plaintiff as a business invitee. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this _L?o day of June, 2005, the motion of defendant for summary judgment, IS DENIED. James R. Ronca, Esquire For Plaintiff Guy H. Brooks, Esquire For Defendant :sal Edgar B -6- PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: (Check one) (X) for JURY trial at the next term of civil court ( ) for trial without a jury CAPTION OF CASE ( ) Assumpsit ( ) Trepass ( ) Trepass (Motor Vehicle) (X) Other Civil RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and Wife, Plaintiffs V. CARLISLE COUNTRY CLUB, Defendant No. 00-2617 Civil 2000 Indicate the attorney who will try case for the party who files this praecipe: James R. Ronca, Esquire, Schmidt, Ronca & Kramer, 209 State Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Guy H. Brooks, Esquire, Goldberg Katzman, 320 Market Street, Harrisburg, PA 17101 Counsel for Defendant, Carlisle Country Club This case is ready for trial. Date: 9 h u l ac?;- The trial list will be called on October 11, 2005. Trials commence on November 7, 2005. Pre-trials will be held on October 19, 2005. (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314.1 L 14t'0 dames R. Ronca, Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, I, Beth E. Steever, an employee of SCHMIDT, RONCA & KRAMER, P.C., do hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR TRIAL in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Guy H. Brooks, Esquire Goldberg Katzman 320 East Market Street Harrisburg, PA 17101 Dated: q Beth E. Steever f7 N ?y © =[t G?. ? , "b -? } ? (Q '" ?= 7? P (_, K w RICHARD CLOTFELTER and IN THE COURT OF COMMON PLEAS OF LINDA CLOTFELTER, CUMBERLAND COUNTY, PENNSYLVANIA Husband and wife, Plaintiffs No. 00-2617 V. CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED NOTICE TO PRODUCE To: Carlisle Country Club c/o Mr. Guy H. Brooks Goldberg Katzman 320 East Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 You are directed to produce the following: the original Carlisle Country Club Board of Governors and Golf Committee meeting minutes for the years 1994 through 2000 at Judge Bailey's Courtroom at the Cumberland County Courthouse on Monday, November 7, 2005 at 10:00 a.m. If you fail to produce the documents or things required by this Notice to Produce, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. Respectfully submitted, By: Date: l?/L? / zQ0 J SCHMIDT, RONCA & KRAMER, P.C. James ?. Ronca, Esquire f/# 25631 State Street risburg, PA 17101 (717) 232-6300 Attorneys for Plaintiffs RICHARD CLOTFELTER AND LINDA CLOTFELTER, Husband and wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-2617 CIVIL ACTION - LAW CARLISLE COUNTRY CLUB, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 2411, day of October, 2005, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing Notice To Produce by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Guy H. Brooks, Esquire Goldberg, Katzman &, Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Respectfully submitted, SCHMIDT, RONCA KRAMER P.C. By: Shawn T. Peterson 209 State Street Harrisburg, PA 17101 (717) 232-6300 ly ? r..,, :i , , ` Curtis R. Long Prothonotary (Office of the i9rotbonotarp ?umberrar><b ?ourttp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor _0 ".2L/7 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA RCP230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square 6 Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573