HomeMy WebLinkAbout00-03894
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JAMES SCHMICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. (X) - 3f'iiJ CiOl( T~
v.
ELAM G. STOLTZFUS, JR., INC.,
Defendant
CIVIL ACTION - LAW
NOTICE
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 LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
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JAMES SCHMICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. (;0- 3i9'f'~/.u..-'
v.
ELAM G. STOLTZFUS, JR., INC.,
Defendant
CIVIL ACTION - LAW
COMPLAINT
AND NOW comes the Plaintiff, by and through his attorneys, the Offices of
Fenstermacher and Associates, P.C., and files this Complaint, as follows:
1. Plaintiff James Schmick is an adult individual currently residing at 1020
Teakwood Lane, Enola, PA 17025.
2. Defendant Elam G. Stoltzfus, Jr., Inc. is a Pennsylvania corporation with a
registered address of 474 Mount Sidney Road, Lancaster, PA 17602.
3. Defendant Stoltzfus is in the business of constructing and selling new
homes.
4. On November 11, 1999, Mr. Schmick became aware of a home constructed
by the Defendant in the Westwood Hills development of Enola (hereinafter referred to as
"the Property").
5. Said Property was listed for sale through Jack Gaughen Real Estate
Agency.
6. Defendant, by and through its agents or employees, placed "For Sale" signs
in front of the Property as well as advertisements to come to view the Property.
7. Defendant, by and through its agents or employees, placed information
regarding the Property outside of the Property, advertising the various amenities to the
Property.
8. The Property was open to the public and the public was, in fact, encouraged
to come and view the Property.
9. On November 11, 1999, Plaintiff traveled to the Property to view it with the
intent on determining whether it was suitable for purchase.
10. While viewing the Property, Plaintiff went to the rear of the Property in order
to view the back lot of the Property as well as the stone patio referenced in the information
provided to prospective buyers.
11. At the rear of the Property on the stone patio existed a small step, which led
into sliding glass doors. In order to view the interior of the Property, Plaintiff ascended the
step at the rear of the Property.
12. Upon ascending the step, the step slid out from under the Plaintiff, causing
the Plaintiff to abruptly fall to the ground.
13. The step was not secured either to the Property or to the foundation in any
manner.
14. Due to the abrupt fall, Plaintiff suffered injuries including broken ribs and a
bruised spleen. Those injuries then led to Plaintiff contracting pneumonia and,
subsequently, asthmatic attacks.
15. As of this date, Plaintiff continues to suffer from these injuries.
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16. Due to the injuries sustained due to Defendant's negligence, Plaintiff has lost
wages due to his inability to work. Ln addition, Plaintiff was required to utilize sick leave
from his employment, such use therefore will negatively impact his retirement benefits at
the time of his retirement.
17. Defendant owed a duty to Plaintiff and all other individuals who entered the
Property to ensure the Property is free of all defects and dangers.
18. By failing to properly secure the step, Defendantcreated a known danger
and defect, from which they had a duty to protect Plaintiff.
19. Due to Defendant's breach of such duty, Plaintiff has suffered harm and
continues to suffer harm.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment
for him and against Defendant in an amount below the threshold and thereby requiring
compulsory arbitration.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
~~
Mark K. Emery
Supreme Court I.D. #72787
5115 EastTrindle Road
Mechanicsburg, PA 17055
(717) 691-5400
Attorney for Plaintiff
DATED: June21, 2000
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SHERIFF'S RETURN - OUT OF COUNTY
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CASE NO: 2000-03894 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SCHMICK JAMES
VS
STOLTZFUS ELAM G JR INC
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
STOLTZFUS ELAM G JR INC
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of LANCASTER
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On July
13th , 2000 , this office was in receipt of the
attached return from LANCASTER
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep. Lancaster Co
18.00
9.00
10.00
38.13
.00
75.13
07/13/2000
FENSTERMACHER
S~?k~
R. Thomas Kline
Sheriff of Cumberland County
& ASSOCIATES
Sworn and subscribed to before me
this ..2.t>~ day of{j,a,
.2oo-U A. D.
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Prothonotary
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SHERIFF'S OFFICE
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SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
50 NORTH DUKE STREET, LANCASTER, PENNSYLVANIA 17602. (717) 299-8200
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t _ PLAINTIFF/Sf
James Schmick
3. DEFENDANT/SI
'2. COUAT NUMBER ..':'
20-3894 Civil
4. TYPE OF WAtT OR COMPLAINT:
ivil Action - Law/Notice & CampI
Elam G. Stoltzfus.Jr.. Inc.
SERVE {5' NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETG., TO BE SERVED.
~ Elam G. Stoltzfus. Jr., Inc.
...",. 6. ADDRESS {Street or RFD, Apartment No.. City, Boro, Twp., State and ZIP Code)
AT 474 Monnt Sidn..y ROAd, T,AncA"t..r. PA 171iO?
7. INDICATE UNUSUAL SERVICE: 0 COMMON, OF PA. IXDEPUTIZE 0 OTHER
Now, 6/23/00 ffi{ ,I, SHERiff OF ~COUNTY
Lancas t er County to execute thi
to law. This deputation being made at the request and risk of the plaintiff.
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
Cumberland County
NotE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under
within writ may leave same without a watchman, in custody of whomever is found,in possession, after notifying person of levy or attachment, without liability on
the part of such deputy., or the sheriff to any plaintiff herein for any loss, destruction or removal of any such prop~rty before sheriff's sale thereof.
9. SIGNATURE of ATTORNEY or ot~RIGINATOR 10. TELEPHONE NUMBER 11. DATE
,/"~""?/ ~ 691-5400 6-21-00
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12. SE D NOTICE OF SEf:l:VICE COPY TO NAME A
Emery, Esquire,
RESS BELOW: (This area must be completed if notice is to be mailed)
stermacher and Associates, P.C., 5115 E.
A.1'fflETTE WALTON
717-295--3609
13, I acknowledge receipt of the writ l
- or complaint as indicated above. f
W FORUSE OF SHERIFF ONLY"I10NOTWR
NAME of Authorrzed LCSD Deputy or Clerk
t 6. I hereby CERTIFY and RETURN that I 0 have personally served)!:Ihave legal evidence of service as shown in "Remarks", 0 have executed as shown in
"Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, cor~
paratlon, etc, at the address inserted below by handing a TRUE and ATTESTED COPY thereof.
17..0 I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc.. named above. (See remarks below)
t 8. Name and title of individual served (if not shown above) (Relationship to Defendant) 19. A person of suitable age and discretion
NO 'LJ4 Pc=ascN uJ C~G '-(Cotv'T7'l.Oc..A- ~~:~:e~}d~~~d~~edefendant'susual
20. Addr ss of where served (complete only if different than shown above) (Street orR ,Apartment No., City, Boro, Twp. ! 21. Date of Service 22. Time
State and-Zip Code)
23. ATTEMPTS
Miles Dep. Int.
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Dep. In!.
24. Advance Costs
R10936S-
30. REMARKS:
100.00
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S.T.A.:
34,
3.2, Si.Qnatur
Dep. s.~::~!".
SO ANSWER.
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Prothonotary/ S
MY COMMISSION EXPIRES
38, [ ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE}
OF AUTHORIZED ISSUING AUTHOR1TY AND TITLE.
1, ISSUING AUTHORITY
39. Date Received
LCSD-1.1977 Amended 1993
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50 NORTH DUKE SiBEET, LANCI\SJEFtPENN.s'Yl.YI\NlI\J.l602 ..1117) 299c8Z0Q.
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
1 . PLAI NTlFF /SI
INSTRUCTIONS FOR SERVICE. OF PROCESS on th~ rever~e.of the last (No.
5) copy of this form. Please type or print legibly. Do not detach any copies.
2. COURT NUMBER
,
James Schlltick
3. DEFENDANTlSI
Ela,n G." Stoltzfus Jr. Inc. . .
SERVE {5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, nc TQ BE. SERVEO
~ flam G. Stoltzfus. Jr.. Inc.
..".. 6 ADDRESS (Street or RFO, Apartment No , City, Bora, Twp , State and ZIP Code)
AT 474 M01mt Sinnf\Y Roan, [,RncR"tp.r, PA T7hO/
7. INDICATE mmSUAL SERVICE. O.cOMMON OF PA tKDEPUTIZE 0 OTHER ("llmnpr 1 .4nn
Now, t::./23/00 i'9x_ rl, SHERlFF OF L~)(~XcOUNTY, PA., do hereby deputrze the Sheri!! of
Lancas ter County to exepute this fit and make return fher<f~ according
to law. This deputation being made at the request an risk of the plaintiff.1
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8. SPECIAL INSTRUCTIONS':,OR 'OTHER INFO MA ON THAT WILL SSIST IN E, P.~D'ITING S'E VICE:
20-3894 Civil
4 TYPE OF WRIT OR COMPLAINT.
'lvil Action - Law/Notice
& Camp!
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NOTE.ONLY APPLICABLE ON WRIT OF EXECUTION: N,B, WAIVER OF WATCHMAN - Any deputy sheriff levying. upon or attaching alW property under
within writ mayJeave same without a watchman, In custody of whomever Is found in possession..afternotlfying person of levy oraltachment. without I,iability on
the part of su,CJl' deputy or the sheriff to any plaintiff herein for an"y loss, destruction.or removal of any such prap_erty ~efore sheriff's sale thereof.
9~ SIGNA'fURE Of,..ATTORNEY 70RIGINATOR 10. TELEPHONE NUMBER 11. DATE
~ 7..2, L- . l' 691 5400 6-iH-QO
12, SEN NOT1CE OF SERVICE ~OPY TO NAME ~ ESS BELOW: (This area must be completed if notice is to be ma},hl'
~larKj{. &lery, Esquire, Ya<1Btermacher and Associates, P.C., 5115 E. Trindle Road',
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15. Expiration/Hearing date
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SPACE
W FOILUS.E OF S EI'UF Oi'lLY'.~DQ.NOT WRI
NAME of Authorized LCSD Deputy or Clerk
o
13. r acknowledge receiptofthewrit I
orcomplaintas indicated above.
14. Date Received
ANNETTE WALTON
7
-3609
6 30 00
16. I hereby CERTIFY and. RETURN that I 0 have personally servedJithave legal evidence of service as shown in'uRemarks",D have-executed as shown in
"Remarks", lhe writ orcomplaint described onJDe indivldu.aLcompany, corporation, etc.. at the address shown above orOI1 the indiVIdual, company, cor~
poration, elc....at the address inserted below by handing a TRUE and ATTESTED COpy thereof.
17.01 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporati_on, etc.. named above~ (See remarks below)
18. Name and title of individual served (if not shown above) (Relationship to~.Jjefendant) 19. A person of sui lab Ie age and discretion
/J < ( then reSiding, In thedefendanl's usual
NO - LJ4 rEr€.:)aN IN r . (. :'.-;>-(<jf 'nto~L- "o-"i place ofabode,O
20. Addre s O~ZlW.heCr~~erved lComplett'..o~lyifdifferentt_~_an ~~.9..w~!-~?ve1.(S::,:.!,?_r.~F_ ,<iJ?,.~ttmelJt ~ ~_ 21. Dat~ ofSer'Vjce 22,._Ttme_
State and _ Ip au.e) '. _ l - ___ .,. -. - - _ -_ _ . _ __._.
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23. ATTEMPTS
Miles Dep.lnt.
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Miles Dep. Int.
24. Advance C_osts
Rl09366
30. REMARKS;
100'.00' , 36;50
29. C7D E .O~iO
S.T.A.:
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35. S~.Hure of Shef!
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ASTER OUNIY
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MY COMMLSSTON EXPIRES -.....-'
36. \ ACK OWJ"gDGE RECEIPT OF: THE: SHERIFF'S ~ETURN SI~_~ATUR~}
OF AUTHORlZED ISSUING AUTHORITY AND TITLE, . _ ._ _
2. ATTORNEY
39 Oale Rec7!tvad_.,
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LCSO__;:EI977 Am.ende<;l J 99.3_
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JIM SCHMICK,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: DOCKET NO. 3894-00
v.
ELAM G. STOLTZFUS, JR., INC.,
Defendant
: CIVIL ACTION - LAW
TO: Elam G. Stoltzfus, Jr., Inc.
474 Mount Sidney Road
Lancaster, PA 17602
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE
ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10)
DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED
AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR
OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO
OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET
LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
FENSTERMACHER AND ASSOCIATES, P.C.
BY:~{))(.k 1{ tn?J~/I'/f/J)
ark K. Emery, Es ire
Supreme Court I.D. #72787
5115 EastTrindle Road
Mechanicsburg, PA 17050
(717) 691-5400
DATE: August 1, 2000
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CERTIFICATE OF SERVICE
AND NOW, on this 1M day of August, 2000, I, Mark K. Emery,
Esquire, hereby certify that I have served the foregoing 1 O-Day Notice of Default by
mailing a true and correct copy by United States first class mail, addressed as follows:
Elam G. Stoltzfus, Jr., Inc.
474 Mount Sidney Road
Lancaster, PA 17602
FENSTERMACHER AND ASSOCIATES, P.C.
BY:~~ UmAlf/{I.Jw
ark K. Emery
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PETERS & W ASILEFSKI
By: Charles E. Wasilefski, Esquire
Attorney ill #21027
2931 North Front Street
Harrisburg, PA 17110-1280
Attorney for Defendant, Elam G. Stoltzfus, Jr., Inc.
JAMES SCHMICK,
Plaintiff
v.
ELAM G. STOLTZFUS, JR., INC.
Defendant
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IN THE COURT OF
COMMON PLEAS FOR
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
No. 00 - 3894
NOTICE TO PLEAD
TO: PLAINTIFF AND HIS COUNSEL
,;]
YOU ARE REQUIRED to plead to the within Answer with New
Matter within twenty (20) days of service hereof, or a default judgment may be entered
against you.
Dated: s[3f~
PETERS & W ASILEFSKI
CHARLES E. W ASILEFSKI
Attorney ID #21027
2931 North Front Street
Harrisburg, PA 17110
[717] 238-7555
Attorney for Elarn G. Stoltzfus, II.,
Inc.
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PETERS & W ASILEFSKI
By: Charles E. Wasilefski, Esquire
Attorney ill #21027
2931 North Front Street
Harrisbnrg, PA 17110-1280
Attorney for Defendant, Elam G. Stoltzfus, Jr., Inc.
JAMES SCHMICK,
Plaintiff
IN THE COURT OF
COMMON PLEAS FOR
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
ELAM G. STOLTZFUS, JR., INC.
Defendant
CIVIL ACTION - LAW
No. 00 - 3894
ANSWER WITH NEW MATTER OF
DEFENDANT. ELAM G. STOLTZFUS. JR.. INC.
NOW COMES, Defendant, Elam G. Stoltzfus, Jr., Inc. ("Stoltzfus"),
by and through its attorneys, Peters & Wasilefski, and answers Plaintiff's Complaint, as
follows:
1. Defendant, Stoltzfus, denies the allegations contained in
Paragraph I of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
2. Defendant, Stoltzfus, admits the allegations contained in
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Paragraph 2 of Plaintiff's Complaint.
3. Defendant, Stoltzfus, admits the allegations contained in
Paragraph 3 of Plaintiff's Complaint.
4. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 4 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
5. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 5 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
6. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 6 of Plaintiff's Complaint. It is specifically denied that Defendant, Stoltzfus,
placed "For Sale" signs in front of the property or placed advertisements in newspapers
to come to the development. To the contrary, Defendant, Stoltzfus, was in the process
of constructing a "spec home" within the development of Westwood Hills pursuant to
an agreement with the developer. The services of Jack Gaughn Realtors were retained
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to manage the marketing of the development and to advertise, market, and sell real
estate lots and pre-constructed homes, including "spec homes", within the
development. If advertisements were placed in newspapers and signs were posted, said
activities were the activities of Jack Gaughn Realtors. Further, Defendant, Stoltzfus,
did not invite Plaintiff or anyone else to come to view the incomplete "spec home". In
further answer, Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P.
1029(e).
7" Defendant, Stoltzfus, denies the allegations contained in
Paragraph 7 of Plaintiff's Complaint. It is specifically denied that Defendant, Stoltzfus,
placed information outside the property advertising the various amenities of the
property. To the contrary, Defendant, Stoltzfus, constructed the "spec home" within
the development of Westwood Hills pursuant to an agreement with the developer. The
services of Jack Gaughn Realtors were retained to manage the marketing of the
development and to advertise, market, and sell real estate lots and pre-constructed
homes, including "spec homes", within the development. If information concerning the
property was placed outside advertising the amenities of the property, said activities
were the activities of Jack Gaughn Realtors and not the acts of Defendant, Stoltzfus.
Further, Defendant, Stoltzfus, did not invite Plaintiff or anyone else to come to view
the incomplete "spec home". In further answer, Defendant, Stoltzfus, denies said
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allegations pursuant to Pa. R.C.P. 1029(e).
8. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 8 of Plaintiff's Complaint. To the contrary, Defendant, Stoltzfus, was in the
process of constructing the "spec home" and did not intend that the property be open to
the public. If the property was opened to the public and the public was encouraged to
come and view the property, it was Jack Gaughn Realtors, who would have opened the
development to the public and encouraged the public to come to view the property and
not Defendant, Stoltzfus. It was Jack Gaughn Realtors that controlled all access of the
public to the development and specifically access of the public to the property. In
further answer, Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P.
1029(e).
9. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 9 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
10. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 10 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
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of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
11. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 11 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
12. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 12 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
13. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 13 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
14. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 14 of Plaintiff's Complaint. After reasonable investigation, Defendant,
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Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
15. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 15 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
16. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 16 of Plaintiff's Complaint. After reasonable investigation, Defendant,
Stoltzfus is without knowledge or information sufficient to form a belief as to the truth
of said allegations and proof thereof is demanded at trial. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
17. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 17 of Plaintiff's Complaint. To the contrary, this property was locked when
Defendant, Stoltzfus, was not working at the property, as far as Defendant, Stoltzfus,
was concerned, no one should have been upon the property without prior approval. If
persons were invited to go onto the property or allowed to go onto the properties within
the development, said actions were done by others, not Defendant, Stoltzfus, which
6
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others had possession and control of the unsold properties within the development.
Therefore, it is denied that Defendant, Stoltzfus, owed any duty to Plaintiff other than
that owed to a trespasser. In further answer, Defendant, Stoltzfus, denies said
allegations pursuant to Pa. R.C.P. 1029(e).
18. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 18 of Plaintiff's Complaint. With regard to the fact that the stair was not
properly secured when Plaintiff allegedly stepped onto it, after reasonable investigation,
Defendant, Stoltzfus, is without knowledge or information sufficient to form a belief as
to the truth of said allegations and proof thereof is demanded at trial. In further
answer, Defendant, Stoltzfus, denies that it created a known danger and defect from
which it had a duty to protect Plaintiff. To the contrary, the only duty owed to Plaintiff
from Defendant, Stoltzfus, was those duties owed to a trespasser. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
19. Defendant, Stoltzfus, denies the allegations contained in
Paragraph 19 of Plaintiff's Complaint. It is specifically denied that Defendant,
Stoltzfus, breached any duty to Plaintiff. To the contrary, Defendant, Stoltzfus, did not
breach any duty owed to Plaintiff. Further no action or inaction of Defendant,
Stoltzfus, caused or contributed to Plaintiff's alleged injuries. In further answer,
Defendant, Stoltzfus, denies said allegations pursuant to Pa. R.C.P. 1029(e).
7
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WHEREFORE, Defendant, Stoltzfus, demands that Plaintiff's
Complaint be dismissed.
NEW MATTER
20. Defendant, Stoltzfus, was requested to construct a "spec home"
on property at the development known as Westwood Hills pursuant to an agreement
with the developer.
21. Other than at times when Defendant, Stoltzfus, was physically
performing construction activities on the property, parties other than Defendant,
Stoltzfus, had possession and control of the property. Defendant, Stoltzfus, kept the
"spec home" locked when it was not at the property.
22. Defendant, Stoltzfus, neither advertised for the public to come to
view the property nor did it place any "For Sale" signs or information in front of the
property nor in any other way invite Plaintiff or anyone else to come upon the
property. Defendant, Stoltzfus, did not intend to have persons coming upon the
property without prior approval of Jack Gaughn Realtors.
23. The services of Jack Gaughn Realtors were retained to manage
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the unsold properties in the development and to market, advertise and sell properties
within Westwood Hills development.
24. In its role as manager of the unsold properties in the development
and marketer of the development, Jack Gaughn Realtors was in possession and control
of the unsold properties, including the properties where "spec homes" were being
constructed by contractors.
25. In its role as manager of the unsold properties in the development
and marketer of the development, Jack Gaughn Realtors placed advertisements in
newspapers advertising unsold properties within the development and placed "For Sale"
signs and other information on unsold lots, including those where "spec homes" were
being constructed.
26. Jack Gaughn Realtors was responsible for inviting the public to
the development and controlling the manner in which the general public visited and
viewed the unsold properties within the development.
27. If any party owed Plaintiff any duty other than as a trespasser, it
was Jack Gaughn Realtors, who had an office in the model home on said development
and was in possession and control of all of the unsold properties within the
development.
28, If Plaintiff sustained injury as set forth in his Complaint, said
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injuries were caused by Plaintiff's own carelessness and negligence in going upon a
construction site and not properly watching for unfinished work and not taking proper
precautions for his own safety in an obvious construction zone.
28. Plaintiff's alleged damages are barred in whole or in part by
operation of the Pennsylvania Comparative Negligence Act.
29. Plaintiff's alleged damages are barred because he assumed the
risk of injury by going upon a construction site and not taking proper precautions for
his own safety.
WHEREFORE, Defendant, Stoltzfus, demands that Plaintiff's
Complaint be dismissed.
PETERS & W ASILEFSKI
Charles E. Wasilefski, Esquir
Attorney ID #21027
2931 North Front Street
Harrisburg, PA 17110
[717] 238-7555
Attorneys for Defendant,
Elam G. Stoltzfus, Jr. Inc.
Date: '8(3 /~
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AUG-02-00 14: 56
FROM-Elam G Stoltzfus Jr., Inc.
717-393-8924
T-688 P.02/14 F-872
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VERIFICATION
I hereby affirm that the roHowing fltcts are correct:
Elam G. Stoltzfus, Jr., Iuc. is a Defendant in the foregoing action and I am
authorized to execute this vel'ific:ition au their behalf. TIle a~taehed Allswe.r with New Matter is
based upOn information that I have furnished to my counsel and infonnatlon which has been
gathered by my counsel in preparation of the defense of the lawsuit. The language of the Answer
with New MattCll' is that of counsel and not of me. I have read the Answer witn New Matter and
to the extent [hat the Answer with New Matter is based upon inforwation that I have given to my
COUnsel, it is true and correct to the best of my knowledge, information and belief. To the extent
fuat the content of the Answer with New Matter is that of counsel, I have relied Upon counsel in
maKing this verificatioll. r hereby acknowledge that the facts set forth in the aforesaid Answer
with Now Matter are made subject to the penalties of 18 Pll, C,S. SeCtion 4904 relating to unsworn
fHlsifiell.tion to autllorl~ies.
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CERTIFICATE OF SERVICE
This is to certify that I, Pamela J. Crum, a Legal Assistant in the law
offices of Peters & Wasilefski, have this 6 ,2000, served a true
and correct copy of the foregoing ANSWER WITH NEW MATTE F DEFENDANT, ELAM
G. STOLTZFUS, JR., INC. upon all parties by depositing same in the United States mail, first
class, postage prepaid, addressed to the counsel of record as follows:
Mark K. Emery, Esquire
FENSTERMACHER AND ASSOCIATES
The Jonas Rupp House
5115 East Trindle Road
Mechanicsburg, PA 17055
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Pamela J. Crum
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PETERS & W ASILEFSKI
By: Charles E. Wasilefski, Esquire
Attorney ill #21027
2931 North Front Street
Harrishurg, PA 17110-1280
Attorney for Defendant, Elam G. Stoltzfus, Jr., Inc.
JAMES SCHMICK,
Plaintiff
IN THE COURT OF
COMMON PLEAS FOR
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
ELAM G. STOLTZFUS, JR., INC.
Defendant
CIVIL ACTION - LAW
No. 00 - 3894
PRAECIPE TO SUBSTITUTE VERIFICATION
TO: THE PROTHONOTARY, LEBANON COUNTY, PENNSYLVANIA:
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Kindly replace the Verification previously filed with the Answer
with New Matter of Defendant, Elam G. Stoltzfus, If., Inc., with the attached
Verification.
PETERS & W ASILEFSKI
CHARLES E. W ASILEFSKI
Attorney ID #21027
2931 North Front Street
Harrisburg, PA 17110
[717] 238-7555
Dated: ~l-l/~oo
Attorney for Defendant
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CERTIFICATE OF SERVICE
This is to certify that I, Pamela J. Crum, a Legal Assistant in the law
offices of Peters & Wasilefski, have this", day o~" \.,,~ ,2000, served a true
and correct copy of the foregoing PRAECIPE TO SUBSTITUTE VERIFICATION. upon all
parties by depositing same in the United States mail, first class, postage prepaid, addressed to the
counsel of record as follows:
Mark K. Emery, Esquire
FENSTERMACHER AND ASSOCIATES
The Jonas Rupp House
5U5 East Trindle Road
Mechanicsburg, PA 17055
~~~~~
Pamela J. Crum
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\ ~UG~02~00 WED 03:00 PM PETERS & WASILEFSKI
FAX NO. 7172387750
P. 02
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VERIFICATION:
I hereby affirm that the following facIS are correct:
Elam G. Stoltzfus, J1'" Inc. is a Defendant in the foregoing action and I am
authorized to execute this verification on their behalf, The attached Answer with New Matter is
based upon information that I have furnished to my counsel and infonnation which has been
gathered by my counsel in preparation of the defense of the lawsuit. The language of the Answer
WiUl New Matter is that of counsel and not of me. I have read the Answer with New Matter and
to the extel1t Ihat the Answer with New Maner is based upon information that I have given to my
coullsel, It is true and correct to the best of my knowledge, information and belief. To the extent
that the content of the Answer with New Matter is that of coullsel, I have relied upon counsel in
making this verification. I hercby acknowledge that the faels set forth ill the aforesaid Answer
Wilh Ncw Matter are made subject to the penalties of 18 Pa. C.S. Seclion 4904 relating to unsworn
falsification IO authorities.
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Dated: B- ~()()
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JIM SCHMICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOCKET NO. 3894-00
ELAM G. STOLTZFUS, JR., INC.,
Defendant
CIVIL ACTION - LAW
PLAINTIFF'S ANSWER TO NEW MATTER
AND NOW comes the Plaintiff, by and through his attorneys, the Offices of
Fenstermacher and Associates, P.C., and files this Plaintiff's Answer to New Matter, as
follows:
20. After reasonable investigation, Plaintiff can neither admit nor deny
Paragraph 20.
21. After reasonable investigation, Plaintiff can neither admit nor deny
Paragraph 21.
22. Denied. It is denied that Defendant neither advertised for the public to
come to view the property or faced "for sale" signs or other information in front of the
property or in any other way invited Plaintiff to come upon the property. It is further
denied that Defendant did hot intend to have persons coming upon the property.
23. After reasonable investigation, Plaintiff can neither admit nor deny
Paragraph 23.
24. After reasonable investigation, Plaintiff can neither admit nor deny
Paragraph 24.
25. It is admitted that Jack Gaughen Realtor, as the agent and representative
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of Defendant, placed advertisements in newspapers as well as placed "for sale" signs
and other information on unsold lots.
26. After reasonable investigation, Plaintiff can neither admit nor deny
Paragraph 26.
27. Denied as a conclusion of law.
28. Denied as a conclusion of law.
28. (sic) Denied as a conclusion of law.
FENSTERMACHER AND ASSOCIATES, P.C.
BY:~~
Mark K. ~mery
Supreme Court 1.0. #72787
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorney for Plaintiff
DATED: August 23, 2000
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CERTIFICATE OF SERVICE
AND NOW, on this d) day of August, 2000, I, Mark K. Emery,
Esquire, hereby certify that I have served the foregoing Plaintiffs Answer to New Matter by
mailing a true and correct copy by United States first class mail, addressed as follows:
Charles E. Wasilefski, Esquire
Peters & Wasilefski
2931 North Front Street
Harrisburg, PA 17110-1280
FENSTERMACHER AND ASSOCIATES, P.C.
By:
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MarK K. Emery
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PETERS & W ASILEFSKI
By: Charles E. Wasilefski, Esquire
Attorney ID #21027
2931 North Front Street
Harrisburg, PA 17110-1280
Attorney for Defendant, Elam G. Stoltzfus, Jr., Iuc.
JAMES SCH..l\1ICK,
Plaintiff
v.
IN THE COURT OF
COMMON PLEAS FOR
CUMBERLAND COUNTY,
PENNSYLVANIA
ELAM G. STOLTZFUS, JR., INC.
Defendant
CIVIL ACTION - LAW
No. 00 - 3894
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PA:
Please mark this matter, ended, settled and discontinued.
FENSTERMACHER AND ASSOCIATES
By: //;JP~~~
Mark K. Emery, Esquire
Attorney ID #72787
The Jonas Rupp House
5115 East Trindle Road
Mechanicsburg, PA 17050
Counsel for Plaintiff
Dated: J!(}.S/o J
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