HomeMy WebLinkAbout00-04861THOMAS, THOMAS & HAFER LLP
James A. Thomas, 11, Esquire
Identification Number- 15613
Hugh P. O'Neill, n[, Esquire
Identification Number; 69986
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237.7100
f MAY _ 6 zoos
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH, : IN THE COURT OF COMMON PLEAS
Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA
v
NO. 2000-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION - LAW
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
James K. Thomas, 11, Esquire
Hugh P. O'Neill, III, Esquire
THOMAS, THOMAS & HAFER, LLD
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7100
Attorneys for Defendant Thomas Dixon Diamond
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiffs James Smith and Crystal Smith, husband and wife, initiated this premises
liability action against Defendant Thomas Dixon Diamond and others associated with an incident
which occurred on or about July 25, 1998, at the Four Mile Run Diamond Lodge located in
Shippen Township, Cameron County, Pennsylvania. Plaintiffs' Complaint alleges that Four Mile
Run Diamond Lodge is owned by Defendant Four Mile Run Lodge, Inc., with a business address
of 529 Spinghouse Road, Camp Hill, Cumberland County, Pennsylvania.
Plaintiffs' Complaint describes an event that occurred on July 25, 1998, involving a
homemade canon owned by Defendant Walter Troth. The Complaint describes that Defendant
Troth packed the cannon with smokeless gun powder as opposed to "black" gun powder. The
homemade cannon was packed with newspaper and dirt and tamped down with a wooden dowel
or stick. Moving Defendant has filed an Answer to Plaintiffs Complaint.
Subsequently, the cannon was ignited and exploded causing debris and shrapnel to be
propelled in various direction. As a result of the explosion, people in attendance at the
"fireworks" display sustained personal injuries including Plaintiffs James Smith and Crystal
Smith.
Crystal Smith was deposed on November 27, 2001, in the matter of the Estate of Deaner
V. Diamond, et al., 99-6649, Cumberland County Court of Common Pleas, a copy of Crystal's
Smith deposition of November 27, 2001, is attached to this brief as Exhibit A. Crystal Smith
testified regarding her understanding of the events leading up to the explosion of the cannon and
her husband's involvement. She testified as follows:
Q. On Saturday night in July of 1998 there was a fireworks
display, is that right?
A. Yes.
Q. And the fireworks were being set off by Rick Diamond and
Jim Smith?
A. Yes.
Crystal Smith's Deposition, pp. 18-19.
Further, consider Crystal Smith's testimony with regard to her husband's involvement in
obtaining the cannon from co-defendant Troth.
Q. And then you said Troth was trying to light the cannon
but could not.
A. Yes.
Q. That was to test the cannon?
A. Yes.
Q. That is what your husband told you?
A. Yes.
Q. He was unable to test the cannon?
A. Correct.
Q. Do you know why he was unable to test the cannon?
A. He said the fuse kept going out couldn't get the fuse to
To stay lit.
Q. At that point Rick [Diamond] put the cannon on the vehicle
he was driving?
A. Yes.
Q. And took it up to the house anyway?
A. Yes.
Q. Without it being tested?
A. Yes.
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Q. And your husband followed him back up there?
A. Yes.
Q. These are things your husband told you?
A. Yes.
Q. Over the past three years?
A. Yes.
Q. And then according to what he told you, he did not see
the cannon again until it was time to set it off?
A. Correct.
Q. Who was it that actually lit the cannon?
A. This is all from what I have been told.
Q. Okay.
A. Rick
Q. Told by your husband?
A. Yes.
Q. Could you see the person lighting the cannon?
A. No.
Q. Could you see what Rick and Jim did once the cannon was
lit?
A. No.
Q. Did they run away from it?
A. I am only going by what my husband told me.
Q. What did he tell you?
A. He said that, yes, they ran.
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Q. Did your husband tell you who loaded the cannon?
A. Wait, that is what I was told. Walt did.
Q. Did your husband tell you who got the powder for the cannon?
A. He said a friend of Walt's stop at some - store on the way
up.
Crystal Smith Deposition, pp. 27-30.
Moreover, Moving Defendant Thomas Dixon Diamond served Request for Admissions
on Plaintiff James Smith pursuant to Pa.R.C.P. 4014. Moving Defendant's Request for
Admissions addressed to Plaintiff James Smith were attached to Moving Defendant's Motion for
Summary Judgment as Exhibit B. The Request for Admissions were served on Plaintiff James
Smith through his counsel of record on or about November 7, 2005. Therefore, according to
Pa.R.C.P. 4014, Plaintiff James Smith's responses were due to the Request for Admissions on or
about December 7, 2005. Plaintiff James Smith failed to file/serve responses to the Request for
Admissions on or before December 7, 2005. Indeed, as of the time of the filing of the instant
Motion for Summary Judgment on April 7, 2006, Plaintiff James Smith had failed to file/serve
responses to the subject Request for Admissions. Also, as of the time of the preparation of this
brief, Plaintiff James Smith has failed to file/serve responses to the Request for Admissions.
Plaintiff James Smith through his failure to respond to the Request for Admissions in a
timely manger is deemed to have admitted the material contained in the Request for Admissions.
Specifically6 he is deemed to have admitted inter alia the following allegations:
s He participated in bringing the cannon to the lodge property for it use on
December 25, 1998.
• He participated in igniting fireworks used on December 25, 1998
• He had conversations about the cannon prior to its ignition in that he inspected the
cannon prior to its ignition.
• He voluntarily chose to be present for the fireworks display and the ignition of the
cannon.
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He knew gun powder was dangerous, that gun powder could explode and that gun
powder inside the cannon could explode.
He knew he should not stand directly near the cannon after it was ignited. That
the ignition of the cannon posed a hazard of personal injury to those in the area of
the cannon.
These facts as well as the testimony of James Smith's wife establish as a matter of law
that Plaintiff James Smith is deemed to have voluntarily assumed the risk of participating in the
ignition of the subject cannon and remaining in the area of the cannon when it was ignited.
Assumption of the risk was the basis of Moving Defendant's Motion for Summary Judgment.
Defendant now files this brief in support of Defendant's Motion for Summary Judgment.
HI. QUESTIONS PRESENTED
A. IS DEFENDANT THOMAS DIXON DIAMOND ENTITLED TO
SUMMARY JUDGMENT AS A MATTER OF LAW WITH REGARD
TO THE CLAIM OF JAMES SMITH AS HE VOLUNTARILY
ASSUMED THE RISK ANYWAY.
Suggested Answer: Yes
B. IN THE ALTERNATIVE, DEFENDANT THOMAS DIXON DIAMOND
DID NOT OWE A DUTY TO PLAINTIFF JAMES SMITH AS
PLAINTIFF JAMES SMITH WAS SUBJECTIVELY AWARE OF THE
DANGER ASSOCIATED WITH THE CANNON AT ISSUE AND
ACCORDINGLY SUMMARY JUDGMENT IS PROPER AS A
MATTER OF LAW.
Suggested Answer: Yes
IV. LEGAL ARGUMENT
A. Summary judgment is properly granted as a matter of law.
Under Pennsylvania Rules of Civil Procedure, where there is no genuine issue of material
fact as to a necessary element of the cause of action and the moving party is entitled to relief as a
matter of law, summary judgment may be entered. See Pa.R.C.P. 1035.2(1). Summary judgment
is proper when the pleadings, depositions, answers to interrogatories and admissions on file, if
any, together with any affidavits, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic,
751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company,
746 A.2d 649 (Pa. Super. 2000); Davis v. Resources for Human Development, Inc., 770 A.2d
353 (Pa. Super. 2001).
Once a motion for summary judgment has been filed, the adverse parry may not rest upon
the mere allegations or denials of the pleadings. Pa.R.C.P. 1035.3(a). The adverse parry must file
a response identifying one or more issues of fact arising from evidence in the record
controverting the evidence cited in support of the motion for summary judgment or evidence in
the record which establishes the facts essential to the cause of action or defense which the motion
cites as not having been produced. Id.
A proper grant of summary judgment depends upon an evidentiary record that either: 1)
shows the material facts are undisputed or 2) contains insufficient evidence of facts to make out a
prima facie cause of action or defense and, therefore, there is no issue to submit to a jury. See
Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178 (Pa. Super. 2002). Only when the facts
are so clear that reasonable minds cannot differ, may a trial court properly enter summary
judgment. Id.
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This Court may grant summary judgment as a matter of law on the legal issues raised by
Moving Defendant. It is well settled under Pennsylvania law that the duty of a possessor of land
owed a third party entering the land depends upon whether the entrant is a trespasser, licensee or
invitee. Kresswell v. End, 831 A.2d 673, 675 (Pa. Super. 2003).
The Pennsylvania Supreme Court in Howell v. Clyde, held that judgment can be issued as
a matter of law (nonsuit) where a plaintiff voluntarily assumes the risk of injury and voluntarily
participates in a dangerous activity knowing that the activity might cause injury to himself or
others. Howell v. Clyde, 620 A.2d 1107, 1113 (Pa. 1993) (holding that the trial Court's entry of
compulsory nonsuit on the basis of assumption of the risk involving the explosion of a cannon
was proper as a matter of law.
B. Plaintiff voluntarilv assumed the risk of harm by narticinating in the i¢nitim
The defense of the assumption of the risk remains a viable defense in the Commonwealth
of Pennsylvania. See, Loughran v. The Phillies, 888 A.2d 872 (Pa. Super. 2005); Hadar v. Avco
Cow., 886 A.2d 225 (Pa. Super. 2005); Bullman v. Giuntoli, 761 A.2d 566 (Pa. Super. 2000);
Howell v. Clyde, 620 A. 2d 1107 (Pa. 1993).
Assumption of the risk is that the plaintiff assumes the risk of injury. Assumption of the
risk has been defined as appreciation of a specific danger, followed by a conscious decision to
tempt fate and accept what fate may bring which then occasions injury. Hadar, 886 A.2d at 228.
In an assumption of the risk analysis, an inquiry must be undertaken as to what the plaintiff knew
and to what the plaintiff's course of action was voluntary and deliberately taken. Howell v.
Clyde, 620 A.2d 1107, 1110 (Pa. 1993). The essence of the assumption of the risk defense is not
an evaluation of fault or negligence in encountering a danger but an acknowledgement that the
plaintiff changed his position. Before suffering injury "he intelligently acquiesced in a known
danger and abandoned his right to complain." Handschuh v. Albert Development, 574 A.2d 693
(Pa. Super. 1990). A plaintiff, however, will not be precluded from recovery if it questionable
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.
Assumption of the risk has been essentially defined as a form of "estoppel" in a tort
context. It :might be assumed, for purposes of the assumption of the risk analysis, that the
defendant was negligent and at least partly responsible for the injuries sustained, nevertheless,
given the circumstances in which the injury was sustained, the plaintiff is essentially "estopped"
from pursuing an action against the defendant because it is fundamentally unfair to allow the
plaintiff to shift the responsibility of the injury to the defendant when the risk was known,
appreciated and voluntarily assumed by the plaintiff. Bullman v. Giuntoli, 761 A.2d 566, 570
(Pa. Super. 2000).
Pennsylvania Appellate Courts have analyzed Restatement (Second) of Torts § 496A
regarding assumption of the risk. See, Howell v. Clyde, 620 A.2d at 1109.
In this case, the facts established through the testimony of James Smith's wife, Crystal
Smith, and his failure to respond to Request for Admissions establishes as a matter of law that
James Smith assumed the risk of harm in participating in the use of the cannon on July 25, 1998.
Crystal Smith's testimony establishes that through party admissions made by her
husband, James Smith, that he participated in the fireworks display at the Lodge, participated in
locating and bringing the cannon to the Lodge property for its use, was in the immediate vicinity
when the cannon was ignited and ran away from the cannon before it was ignited but before it
exploded. See, Exhibit A, Deposition of Crystal Smith, pp. 27-29.
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Moving Defendant served Request for Admissions on Plaintiff James Smith in November
of 2005. As of the time of the preparation of the instant brief, Plaintiff James Smith has not filed
or served any responses to the Request for Admissions. Pa.R.C.P. 4014 regarding Request for
Admissions provides in pertinent part:
(a) A party may serve upon any other party a written request for
admission for purposes of the pending action only, of the truth of
any matters within the scope of Rules 4003.1 through 4003.5
inclusive set forth in the request that relate to statements or
opinions of fact or application of fact to law, including the
genuineness, authenticity, correctness, execution, signing, delivery,
mailing, or receipt of any document described in the request.
(b) Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless within thirty
days after service of the request, or within such shorter or longer
time as the Court may allow, the party to whom the request is
directed serves upon the party requesting the admission and answer
verified by the party or an objection signed by the party or parties'
attorney.
In this case, Plaintiffs' were due on or before December 7, 2005. As of the time of the
filing of this brief, Plaintiff James Smith's responses to Moving Defendant's Request for
Admissions are approximately five months overdue. Additionally, Plaintiff has failed to file an
Answer to Defendant's Motion for Summary Judgment itself.
The :Request for Admissions establish as a matter of law pursuant to Pa.R.C.P. 4014 that
James Smith knew the subject fireworks display was dangerous, that he was voluntarily present
for the fireworks display and ignition of the cannon, and that the ignition of the cannon was
dangerous, that gun powder was present inside the cannon, that he participated in igniting the
fireworks, that he inspected the cannon prior to its ignition, that the gun powder inside the
cannon could explode, that he should not stand directly near the cannon after it was ignited, and
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that ignition of the cannon posed a hazard of personal injury to those in the area of the cannon.
See, Defendant's Request for Admissions attached to Moving Defendant's Motion as Exhibit B.
The facts of this case as established above are remarkably similar to the case of Howell v.
Clyde, supra. The Howell case also involved an exploding fireworks cannon. In that case, the
Court of Common Pleas of Clearfield County entered a judgment of nonsuit against the plaintiff.
The Pennsylvania Superior Court reversed. The Judgment of the Court of Common Pleas was
reinstated by the Pennsylvania Supreme Court. In that case, Daniel Howell was attending a party
at his neighbor's house. He was injured when a fireworks cannon owned by the host neighbor
exploded. He then sued his neighbor for injuries sustained as a result of the exploding cannon.
Evidence established indicated that the fireworks cannon was fabricated by the defendant's
grandfather. The plaintiff inspected the cannon and expressed an interest in firing it. The
plaintiff obtained black powder for use in the cannon, held a flashlight while Mr. Clyde filled the
cannon half full of black powder and that the plaintiff stood back approximately 40 feet when
Mr. Clyde ignited the cannon, which then exploded injuring the plaintiff. Howell, 620 A.2d at
1107.
The Pennsylvania Supreme Court held:
In the case at bar, the Court of Common Pleas was not in error in
concluding, as a matter of law, that Howell had assumed the risk of
injury. Howell voluntarily participated in a dangerous activity,
knowing that the ignition of gun powder is inheritantly dangerous
and might cause injury to himself or others. Although the court
granted the nonsuit on the basis of an assumed risk rather than
because of an absence of duty, the analysis, nonetheless, is
substantially the same. Since Howell voluntarily assumed the risk
of injury, Clyde owed him no duty. It was error therefore for the
Superior Court to remand the case for a new trial.
Id. at 1113.
11
Based on the facts established above, Plaintiff James Smith voluntarily assumed the
assumption of the risk and accordingly Summary Judgment is properly entered against him and
in favor of Defendant Thomas Dixon Diamond as a matter of law.
C. In the alternative, Defendant Thomas Dixon Diamond did not owe a duty to
Plaintiff James Smith based upon Plaintiff Smith's actions.
For the reasons set forth above, it is also appropriate to determine as a matter of law that
Defendant Thomas Dixon Diamond did not owe Plaintiff a duty based upon his actions. The
Pennsylvania Supreme Court in Howell considered that the case could be viewed in the context
of a duty analysis. The Pennsylvania Supreme Court held:
Under this approach the Court may determine that no duty only if
reasonable minds could not disagree that Plaintiff deliberately and
with the awareness of specific risks inherent in the activity,
nonetheless engaged in the activity that produced his injury.
Under those facts the Court would determine that the Defendant, as
a matter of law, owed plaintiff no duty of care. In the alternative,
should this Court determine that an assumption of the risk analysis
is inappropriate or not available under Pennsylvania law, per se,
the Court is requested to determine as a matter of law that the
defendant did not owe the plaintiff a duty as the plaintiff
deliberately and with the awareness of specific risks inherent in the
ignition of the cannon was not owed a duty by the defendant.
Howell, 620 A.2d at 1113.
In the alternative, this Court can determine that Moving Defendant did not owe Plaintiff
James Smith any duty based on Smith's actions in transporting and operating this cannon at
issue. Accordingly, Summary Judgment is also appropriate as a matter of law on this issue as
well.
12
IV. CONCLUSION
For the reasons set forth above, it is respectfully requested, that this Honorable Court
enter Summary Judgment in favor of Defendant Thomas Dixon Diamond and against Plaintiff
James Smith on the basis that he voluntarily assumed the risk of injury on July 25, 1998, or in
the alternative, that Defendant does not owe a duty to the Plaintiff as a matter of law.
Respectfully submitted,
DATE: -5A/ 0
THOMAS, THOMAS &
Janfes'IC-Thomas, II, Esquire
Attorney I.D. No. 15613
Hugh P. O'Neill, III, Esquire
Attorney I.D. No. 69986
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7100
13
LLP
MARGARET M. DEANER,.
INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF
EILLIAM L. DEANER,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V : CIVIL ACTION - LAW
: NO. 99-6649
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILES
R'UN DIAMOND LODGE, INC.,
THOMAS DIXON DIAMOND, JAMES
BRIAN SMITH,
DEFENDANTS
V
BEVERLY WATKINS T/D/B/A
ANOTHER'S TREASURES, AND
GREGORY SIGNOR,
ADDITIONAL DEFENDANT
DEPOSITION OF:
TAKEN BY:
BEFORE:
DATE:
PLACE:
JURY TRIAL DEMANDED
CRYSTAL SMITH
PLAINTIFF
KAREN C. ALBRIGHT, RPR
NOTARY PUBLIC
NOVEMBER 27, 2001, 5:20 P.M.
THOMAS, THOMAS & HAFER, LLP
305 NORTH FRONT STREET
HARRISBURG, PENNSYLVANIA
SCHMIDT, RONCA & KRAMER, P.C.
BY: JAMES R. RONCA, ESQUIRE
FOR - PLAINTIFF .
MARSHALL & HADDICK, P.C.
BY: LORI ADAMCIK KARISS, ESQUIRE
FOR - DEFENDANTS R. DIAMOND, FOUR MILE RUN LODGE
Y:-
I(APPEARANCES CONTINUED ON PAGE TWO)
f
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2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110
717.540.0220 0 Fax 717.540.0221 • Lancaster 717.393.5101
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APPEARANCES: (CONTINUED)
THOMAS, THOMAS & HAFER, LLP
BY: MICHELE J. THORP, ESQUIRE
FOR - DEFENDANT THOMAS DIXON DIAMOND
NEALON & GOVER, P.C
BY: CHRISTOPHER J. KNIGHT, ESQUIRE
FOR - DEFENDANT SMITH
WILLIAM A. ADDAMS, ESQUIRE
FOR - ADDITIONAL DEFENDANT WATKINS
GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS
BY: ROBERT A. LERMAN, ESQUIRE
FOR - ADDITIONAL DEFENDANT SIGNOR
ALSO PRESENT:
MARGARET DEANER
GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS
BY: LINDY L. SWEENEY, LITIGATION PARALEGAL
LAW OFFICES OF JACK MCMAHON
BY: RICHARD C. MALOUMIAN, JR., ESQUIRE
FOR - DEPONENT
JAMES SMITH
Multi-Page TM CRYSTAL SMITH
NOVEMBER 27, 2001
Page 4
APPEARANCES: (CONTINUED) 1 STIPULATION
2 It is hereby stipulated by and between counsel
THOMAS, THOMAS & HAFER, LLP 3 for the respective parties that reading, signing, sealing,
BY: MICHELE J. THORP, ESQUIRE 4 certification and filing are hereby waived; and that all
5 objections except as to the form of the question are
FOR - DEFENDANT THOMAS DIXON DIAMOND 6 reserved to the time of trial.
7
NEALON & GOVER, P.C. 8 CRYSTAL SMITH, called as a witness, being duly
BY: CHRISTOPHER J. KNIGHT, ESQUIRE 9 sworn, testified as follows:
10 EXAMINATION
FOR - DEFENDANT SMITH 11 BY MR. RONCA:
12 Q Please tell us your full name and give us your
WILLIAM A. ADDAMS, ESQUIRE 13 address?
FOR - ADDITIONAL DEFENDANT WATKINS 14 A Crystal Jean Smith. 7665 Logging Lane, Indian
GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 15 Head, Maryland 20640.
BY: ROBERT A. LERMAN, ESQUIRE 16 Q How long have you lived there?
FOR - ADDITIONAL DEFENDANT SIGNOR 17 A Since January of 2000.
ALSO PRESENT: 18 Q And you're married to James Smith?
MARGARET DEANER 19 A Yes.
GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 20 Q How long have you been married?
BY: LINDY L. SWEEN13Y, LITIGATION PARALEGAL 21 A 15 and a half years.
LAW OFFICES OF JACK MCMAHON 22 Q Ms. Smith, my name is Jim Ronca. I'm a lawyer,
BY: RICHARD C. MALOUMIAN, JR., ESQUIRE 23 and I represent Margaret Deaner, her children, and the
FOR - DEPONENT 24 astate of Bill Deaner. Today we're going to take your
JAMES SMITH 25 deposition. You're here with counsel today. Did counsel
Page 3 Page 5
1 WITNESSES 1 explain to you the procedure we're going to follow today?
2 NAME EXAMINATION 2 A Yes.
3 CRYSTAL SMITH 3 Q Have you ever testified before?
4 BY: MR. RONCA 4 4 A No.
5 BY: MS. KARISS 34 5 . Q If at any time during the deposition I ask you
6 BY: MR. L,ERMAN 36 6 a question, you don't understand my question for any
7 7 reason, would you please tell me that and I'll try to
8 8 repeat it or rephrase it. Is that okay?
9 9 A Yes.
10 10 Q Would you be sure during the deposition to keep
11 11 your answers verbal so the court reporter can take them
12 12 down? Yes.
13 13 Q If I ask you a question and you don't know the
14 14 answer or don't remember, would you please tell us that?
15 15 We don't want you to guess or speculate about an answer.
16 16 Can we agree with that?
17 17 A Yes.
18 18 Q Is there any reason you can't answer questions
19 19 today, you're not feeling well, you're on medication, any
20 20 reason at all?
21 21 A No.
22 Q You were injured in the events of July 25th,
23 1998, at the Four Mile Run Diamond Lodge in Cameron
24 County?
25 A Yes.
HUGHES, ALBRIGHT, FOLTZ & NATALE Page 3 - Page 5
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Multi-Page TM
Page 6
1 Q You have filed a lawsuit related to those
2 injuries?
3 A Yes.
4 Q In that lawsuit you have sued Richard Diamond
5 who is also a defendant in this case'?
6 A Yes.
7 Q You have sued the Four Mile Diamond Run Lodge
8 Corporation?
9 A Yes.
10 Q Have you sued Thomas Dixon Diamond in that --
11 A Yes.
12 Q And in the process of filing that lawsuit, was
13 a document prepared for the court called a Complaint which
14 listed your allegations against those defendants and also
15 listed your injuries?
16 A Yes, there was one completed. I don't know
17 that it listed our injuries, my injuries.
18 Q But such a document was filed in court?
19 A Yes.
20 Q In what county?
21 A Philadelphia, I guess. My lawyer is in
22 Philadelphia. I don't remember which county.
23 MR MAwumiAN: 1 didn't file it.
24 BY MR RONCA:
25 Q But it was filed in Pennsylvania, is that
Page 7
1 right?
2 A Yes.
3 Q Do you know if it was in federal court or state
4 court?
5 A Sorry, no, I don't know.
6 Q When that Complaint was prepared, did you have
7 an opportunity to review that Complaint to see if the
8 things that were said in the Complaint were accurate?
9 A Yes.
10 Q And as a result of that review, did you sign a
11 verification or some other.certificat:ion that the things
12 you said in the Complaint were true and correct to the
13 best of your knowledge, information and belief?
14 A Yes.
15 Q How do you know Rick Diamond?
16 A My husband was in the Navy with Pat Devine, and
17 Pat Devine and Rick Diamond were very close friends.
18 That's how we met.
19 Q Prior to 1998, had you attended any type of
20 social function or social gathering at the Four Mile Run
21 Diamond Lodge in Cameron County?
22 A Yes, previous years we had been up there for
23 the summer.
24 Q You were up for that summer party that they
25 have in July every year?
Page 8
i A Yes.
2 Q Have you been up there for any other type of
3 event?
4 A I don't recall being up there for any other
5 event.
6 Q Can you give us an idea of how many times you
7 attended the annual party at the Four Mile Run Diamot
8 Lodge prior to 1998?
9 A Probably five or six times.
10 Q Mr. Devine, who you mentioned before, did he
11 ever attend these parties?
12 A Yes.
13 Q Was he there in 1998?
14 A Yes.
15 Q Did you know Thomas Dixon Diamond?
16 A Yes.
17 Q Did you. know him before July of 1998?
18 A Yes.
19 Q How did you know him prior to that?
20 A I just knew him as Rick's uncle. I really
21 didn't know him that well.
22 Q Had you met him up at the lodge each time you
23 did meet him?
24 A He wasn't up there every year. I had met him a
25 couple times.
Page 9
1 Q Was he up to the lodge for at least two of
2 these parties that we talked about in July of each year?
3 A I believe so.
4 Q Was he there in July 1998?
5 A Yes.
6 Q Did you know Margaret and Bill Deaner prior to
7 July 1998?
8 A Yes.
9 Q From -- how did you know them?
10 A From going up there to the parties.
11 Q Do you recall if in the parties you attended
12 prior to July 1998, there were fireworks each year?
13 A The years that I was there, I remember Saturday
14 nights we always had fireworks.
15 Q Who put the fireworks on, on Saturday nights?
16 A Usually Rick would put them on, and my husband
17 would help light them.
18 Q Where were the fireworks acquired from in those
19 years?
20 A I don't know for sure.
21 Q What about in July 1998, who helped set the
22 fireworks off at that party?
23 A Who helped light them?
24 Q Yes.
25 A My husband was helping him light them.
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-540-0220\717-393-5101
Multi-Page TM
CRYSTAL SMITH
VnViMU PO 17 Inni
Page 10
1 Q So Rick and your husband were responsible for
2 lighting the fireworks in July 1998, is that right?
3 A Yes.
4 Q Do you know how the fireworks were acquired for
5 the July 1998 party?
6 A No, I don't recall.
7 Q Do you know where they were acquired from?
8 A No.
9 Q Were 8iey acquired in Maryland?
10 A I don't think so. I don't think they sell
11 those fireworks, those type in Maryland.
12 Q Why not? Why don't they sell that type of
13 firework in Maryland?
14 A Because they're illegal in Maryland.
15 Q How about Pennsylvania, did they purchase them
16 in Pennsylvania?
17 A I don't know. And I don't know what's legal or
18 not legal up here.
19 Q Do you know if they were purchased in South
20 Carolina?
21 Q
22 A They possibly could have been.
23 Q Do you remember we asked you if you don't know
24 the answer to a question, tell us that, do not guess at an
25 answer. So when you say they possibly could have been, I
Page 11
1 think you're speculating. Do you know whether or not they
2 were purchased in South Carolina?
3 A No, I don't know.
4 Q Did you ever hear of a place called South of
5 the Border in South Carolina?
6 A Yes.
7 Q Does your husband have occasion to go to South
8 Carolina for any reason?
9 A No.
10 Q Do you know if he had been to South Carolina in
11 1997 or 1998, prior to the parties?
12 A I don't remember.
13 Q Do you have any idea how the fireworks were
14 paid for?
15 A No.
16 Q At the party, some food and some alcohol or
17 other drinks were purchased by the group, is that correct?
18 A They were -- they were purchased and then
19 everybody reimbursed Rick, I guess he paid for it and then
20 we all reimbursed him. Some people would kick in I guess
21 ahead of time,
22 Q Someone would do a run for food and maybe
23 they'd do a nm to the beer distributorship, and they'd
24 bring this stuff back, and at some point they'd Figure out
25 how much everybody had to pay?
Page 12
1 A Yes.
2 Q And then everybody would pay into a common
3 fund?
4 A Right.
5 Q Do you know if the firework charge was thrown
6 into that common fund?
7 A No, I don't.
8 Q Forgive me for a second, I need to check
9 something.
10 Did you know Walter Troth?
11 A I know that he lived there, he rented a house
12 from the Diamonds. Didn't really know him that well.
13 Q Did you see him on the weekend in July 1998,
14 when this incident occurred?
15 A I don't remember. Some years I'd see him, some
16 times we wouldn't. I don't really remember.
17 Q Did you see Thomas Dixon Diamond on the weekend
18 in July of 1998, when this incident occurred?
19 A Yes.
20 Q When did you get up to the camp?
21 A I don't remember. It was either Wednesday or
22 Thursday.
23 Q And you stayed up right through Saturday?
24 A Yes.
25 Q Why did you go up earlier than most other
Page 13
1 people?
2 A I didn't go up earlier than most other people.
3 As the years went by people started -- instead of coming
4 on Friday night, they started extending the weekend
5 because they got to be away from their kids and they can
6 relax. I think that year a lot of people came up early,
7 came up on Wednesday.
8 Q Give me an idea of who came up on Wednesday,
9 that you can recall, the best you can recall.
10 A I really can't remember.
11 Q We can assume --
12 A Because the years all blend together.
13 Q -- Diamond?
14 A I'm sure Rick was there, because he had to open
15 up the house. I'm sure other people that lived in the
16 Pennsylvania area that were close by, but I really don't
17 remember.
18 Q Was Thomas Dixon Diamond or Uncle Tom, was he
19 up there when you got there Wednesday?
20 A I don't remember.
21 Q Where were you staying from Wednesday through
22 the weekend?
23 A My husband and I were staying in the house that
24 was down closer to the entrance. We weren't staying in
25 the big log cabin, we were down at the house, the other
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1 house. It's like a white house. 1 fireworks displays, I would think.
2 Q Who else was staying in that house? 2 Q If you don't know, you should tell us that.
3 A I don't remember. I think there was another 3 A I don't know.
4 couple staying there. There was another room, but I don't 4 Q Did you ever observe fireworks being aimed at a
5 remember who else was staying there with us, because there 5 tent or something other than up into the sky while you
6 was room for somebody else. 6 were at the camp?
7 Q Where was Rick Diamond staying? 7 A No.
8 A He was at the cabin. He usually stays in his 8 Q Any time any of the prior years?
9 parents' bedroom at the cabin. 9 A No.
10 Q Where was Thomas Dixon Diamond sleeping? 10 Q Did you know about a potato gun that was used
11 A He had -- they had recently bought the other 11 at the camp?
12 house that was on property near there, so he has a house 12 A Yes.
13 to himself now, so he was staying at that house. 13 Q What did you know about that?
14 Q About how far is that house from the cabin? 14 A That that was something that my husband brought
15 A I'm not good with distances. Maybe three 15 up.
16 football fields, two football fields. 16 Q What is the potato gun?
17 Q Did you ever hear that house referred to as 17 A It was -- it's just a PVC pipe and you put a
18 Camp David? 18 potato in it and they use -- there's a switch on it to
19 A No. 19 ignite it, and it shoots it.
20 Q Now, you drove up with your husband, just the 20 Q What does it shoot it with, what is used as
21 two of you together? 21 propellant?
22 A Yes. 22 A I don't remember if it was hair spray. I don't
23 Q Do you know if any fireworks were brought with 23 remember.
24 you from Maryland to Pennsylvania and up to the camp? 24 Q How far did it shoot these potatoes?
25 A No, we didn't transport any. 25 A A good distance.
Page 15 Page 17
1 Q To your knowledge, you never transported any in 1 Q Over a hundred feet?
2 prior years? 2 A Yeah.
3 A I don't recall. I don't think so. 3 Q Over two hundred feet?
4 Q In the prior years, other than fireworks, did 4 A Yeah, probably.
5 you ever see any other type of explosive devices used at 5 Q Up onto the road from the cabin?
6 the camp? 6 A Yeah, one time it did I think go that far.
7 A No. 7 Q They used shotguns for trap shooting and skeet
8 Q Do you know what an M-80 is? 8 shooting, has that happened while you were at the camp?
9 A Not really, but •- I mean, I've heard of them, 9 A Yeah, I think that we -- yeah, they had skeet
10 but I really don't know what they are. 10 shooting, and I think they had target shooting.
11 Q What do you know about them? 11 Q Prior to the Friday of that week in July 1998,
12 A They -- I really don't know much about them. 12 were any fireworks set off, to your knowledge?.
13 Q Has an M-80 ever been setoff at the camp, to 13 A No, not to my knowledge.
14 your knowledge? 14 Q Any explosive devices set off, to your
15 A I wouldn't know, I wouldn't know the 15 knowledge?
16 difference. 16 A Not that I recall.
17 Q It's a device that explodes and makes a loud 17 Q How about on Friday night of that week?
18 sound as opposed to shooting up in the air. Have you ever 18 A I don't remember.
19 seen something like that used, an explosive device at the 19 Q Was there an incident on Friday night where an
20 camp? 20 M-80 was set off and people were concerned about that
21 A I had heard loud noises but I didn't know what 21 because it was set off close to people?
22 they were. - 22 A I don't remember.
23 Q During the fireworks display, or at other 23 Q Prior to 1998, can you describe the types of
24 times? 24 fireworks that were used in the annual fireworks display?
25 A I don't remember. Probably during the 25 A I don't know much about fireworks. All I know
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1 is they went up pretty high, and some of them would go up
2 and go from side to side. But I really don't know much
3 about fireworks, what they're called.
4 Q Were all the fireworks the type that go up in
5 the air, or did some sit on the ground?
6 A I don't remember.
7 Q Do you know what a Roman candle is?
8 A No.
9 Q Do you know what a spinner is?
10 A I assume it's something that spins, but I don't
11 know --
12 Q We can agree on that, okay. Do you recall any
13 fireworks that spun around?
14 A Yeah, I remember some that spun around.
15 Q Do you recall any fireworks that when lit would
16 simply explode and not shoot up in the air or spin around?
17 A I don't recall any exploding.
18 Q Do you recall at any time in any other year
19 someone setting off anything other than what would be
20 considered a store bought firework?
21 A No, not that I remember.
22 Q On Saturday night in July 1998, there was a
23 fireworks display, is that right?
24 A Yes.
25 Q And the fireworks were being set off by Rick
Page 19
1 Diamond and Jim Smith?
2 A Yes.
3 Q Were you aware prior to that firework display
4 that there was going to be anything different about the
5 display that night than what had occurred the prior years?
6 A No.
7 Q Were,you aware that a homemade device as
8 opposed to a store bought device was going to be set off
9 that night?
10 A No.
11 Q You had no idea that there was going to be some
12 grand finale or a surprise or something different about
13 the fireworks display on Saturday night?
14 A No.
15 Q Prior to the fireworks display, did your
16 husband tell you anything about what was going to be done
17 that night with the fireworks display?
18 A No.
19 Q When you were -- strike that.
20 Wereyou watching the fireworks display?
21 A Not the whole time. I and another girl were
22 cooking dinner, so we were walking -- we were back and
23 forth, in and out of the house checking on dinner, so I
24 didn't see everything.
25 Q Who was the other girl?
I3TICITTF.19_ AT.RRTGHT. FOLTZ & NATALE
Page 20
1 A I think it was Michelle. I don't remember her
2 last name.
3 Q Coyne?
4 A She had long blond hair. I think it was the
5 two of us that were.
6 Q When you had come out to watch the fireworks
7 display, did you see either Rick Diamond or your husband
8 Jim Smith, or the two of them together, moving something
9 heavy in position to set it off?
10 A No, it was dark so I really didn't see -- I
11 really couldn't see them.
12 Q You're aware now, of course, that a cannon was
13 set off that night?
14 A Yes.
15 Q Did you know your husband had gone somewhere to
16 go help get the cannon?
17 A No.
18 Q Can you tell us what you were doing and what
19 you knew your husband was doing in, say, the hour before
20 the fireworks display was set off?
21 A No -- I mean, a lot of times when you're at the
22 cabin you're not necessarily together, you're at different
23 places. I know that he was riding his dirt bike, and I
24 know he came in and checked in on me, because we had
25 started cooking before the fireworks display had even got
Page 21
1 started going off. So I know he'd come over and checked
2 in on me a couple times while I was cooking.
3 Q Did you know that there were tents set up along
4 the creek where people were staying that weekend?
5 A Yes.
6 Q Did you know the Deaners had a tent set up down
7 there?
8 A Yes.
9 Q Were the tents closer to where the fireworks
10 were being set off or farther away from where the
11 fireworks were being set up from the place where you were
12 watching?
13 A I would say that the one tent was closer than
14 from where I was. I was up on a hill.
15 Q Were you aware that Bill Deaner was in his tent
16 when the fireworks display started?
17 A No.
18 Q When did you ever you first become aware that
19 he was in his tent during that fireworks display?
20 A It was after the cannon had exploded and
21 Margaret came out of the house yelling for her husband.
22 Q Starting with the beginning of the fireworks
23 display, tell us what you remember happened.
24 A Well, like I said, I was cooking dinner. I
25 kept walking in and out. I didn't even hear the cannon
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1 explode. I didn't even hear it. All I know is I felt
2 something hit my leg. I thought it was one of the dogs,
3 because the dogs get skitish when the fireworks go off. I
4 thought it was a dog that hit me. And then I just seen
5 everybody running towards the cabin. And then I realized
6 that it was more than just a dog hit my leg, and I went
7 down on the ground. And people came over and started
8 tending to me and tending to other injured people.
9 Q You were cooking the chicken in the oven inside
10 the cabin?
11 A Yeah, and there was corn on the cob that was
12 boiling, that's why we had to keep running in and out of
13 the house checking on that.
14 Q Was the chicken marinaded?
15 A I don't remember.
16 Q Do you remember who marinaded the chicken?
17 A I don't remember.
18 Q Do you remember asking Margaret to ask Bill if
19 he was going to help cook the chicken?
20 A No, I don't remember.
21 Q You don't remember if you said that or not?
22 A No.
23 Q Now, you were injured by this blast?
24 A Yes.
25 Q Your husband was, also?
Page 23
1 A Yes.
2 Q When is the first tune you spoke to him after
3 the blast?
4 A Monday, when I saw him in the hospital.
5 Q In the immediate aftermath, did you ever speak
6 to him?
7 A No.
8 Q Did you find out if he was there or if he was
9 all right?
10 A I had the hospital that I was in, I asked them
11 to find out if he was all right, but I don't think I found
12 out anything until like a day later.
13 Q I mean, before you left the campground did you
14 find out if he was all right?
15 A No. I didn't know whether he was all right or
16 not. I know that he was bleeding pretty bad from his arm
17 and they took trim in a different ambulance, so. No, l
18 didn't know.
19 Q What hospital did you go to?
20 A I don't remember the name of it.
21 Q What hospital was your husband in?
22 A I don't remember.
23 Q Were you in the same hospital as Rick Diamond?
24 A No, my husband and Rick were in the same
,25 hospital.
Page 24
1 Q Were you in the same hospital as Brian Duffie?
2 A Yes.
3 Q When was first time you found out what had
4 exploded?
5 A I don't remember. It was a couple days after.
6 I don't remember.
7 Q Who told you what had exploded? First person
8 you remember told you anything about it?
9 A Would be my husband.
10 Q What did he tell you?
11 A It was a cannon that had exploded.
12 Q Did he tell you any more than that?
13 A Yes.
14 Q Tell us in as much detail as you remember
15 everything he told you.
16 A Okay. At -- this is over like in last three
17 years of us talking. He told me that he and Rick went --
18 they were riding their bikes and he was just following
19 Rick, and then he followed him down to Walt's house. And
20 he said that he didn't know where Rick had went. He was
21 on one side of the house and Rick was on the other side of
22 the house. He was waiting for Rick to come back around
23 and he didn't, so he went to look for him, and he was over
24- there with Walt, and there was the cannon. And they
25 looked at it. Walt said that he was trying to light it
Page 25
1 with the fuse but none of his fuse were working, and Rick
2 said that he could find a fuse up at the cabin, said not
3 to worry about it.
4 So Rick took the cannon and put it on the bike
5 that he was on, and Jimmy was. on his bike, and then they
6 both rode back up to the cabin. And then my husband, he
7 came around to the kitchen to see me, because I was in
8 there cooking, I guess. I know I was in the house. It
9 was earlier than that, because it was daylight. So he
10 came to find me, and he was just riding around on the
11 bike, and he told me that he didn't see the cannon again
12 until it was placed down there, until it was time to light
13 the fireworks.
14 Q He told you later that he had not seen it that
15 night until it was time to light it, he told you some time
16 after that night? Did I get that right?
17 A He saw it down at Walt's house.
18 Q Right.
19 A And then he said he didn't see it until it was
20 time for the fireworks show, then it was placed -- it was
21 already down there.
22 Q When he came and found you in the cabin, he
23 didn't tell you anything about the cannon at that point?
24 A No, because I didn't know anything about it,
no.
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1 Q Do you have any idea how many people might have
2 known that this cannon was going to be set off?
3 A No.
4 Q Let's go back over some of that. Rick Diamond
5 and your husband Jim Smith went down to Troth's house on
6 their bikes, you said?
7 A Well, my husband thought that Rick was just
8 going for a bike ride, he was following him down there.
9 Q That's what your husband told you?
10 A That's what he told me, yes.
11 Q In any event, they both went down there?
12 A Um-hum.
13 Q You have to say verbally.
14 A Yes.
15 Q And Rick was on one side of the house and your
16 husband was on the other side when they got there?
17 A Right.
18 Q When you refer to bikes, are we talking a two
19 wheel or --
20 A My husband was on a two-wheeler and Rick was on
21 a three-wheeler -- three or four-wheeler.
22 Q Do you know who the three- or four-wheeler
23 belonged to?
24 A I assume Rick.
25 Q Do you know?
Page 27
1 A I don't know.
2 Q You shouldn't assume. If you don't know, you
3 should tell us you don't know. It's all right if you
4 don't know, if that's the honest answer. Okay? Can we
5 agree on that?
6 A Yes.
7 Q Then ;your husband went around to the other side
8 of Troth's place --
9 A Of the white house.
10 Q Of the white house?
11 A Um-hum. Troth's house was down, one house down
12 from that.
13 Q And he saw Troth and Rick?
14 A Yes.
15 Q Did your husband tell you anyone else was
16 there?
17 A Yes, but I don't remember for sure who they
18 were.
19 Q Greg Signor? Do you know Greg Signor?
20 A No.
21 Q And then you said Troth was trying to light the
22 cannon but could not?
23 A Yes.
24 Q That was to test the cannon?
25 A Yes.
Page 28
1 Q That's what your husband told you?
2 A Yes.
3 Q He was unable to test the cannon?
4 A Correct.
5 Q Do you know why he was unable to test the
6 cannon?
7 A He said the fuse kept going out, couldn't get
8 the fuse to stay lit.
9 Q At that point, Rick put the cannon on the
10 vehicle he was driving?
11 A Yes.
12 Q And took it up to the house anyway?
13 A Yes.
14 Q Without it being tested?
15 A Yes.
16 Q And your husband followed him back up there?
17 A Yes.
18 Q These are the things your husband told you?
19 A Yes.
20 Q Over the past three years?
21 A Yes.
22 Q And then according to what he told you, he did
23 not see the cannon again until it was time to set it off?
24 A Correct.
25 Q Who was it that actually lit the cannon?
Page 29
1 A This is all from what I've been told.
2 Q Okay.
3 A Rick.
4 Q Told by your husband?
5 A Yes.
6 Q Were you watching the fireworks when this
7 cannon was lit?
8 A Yes.
9 Q Who were you standing near?
10 A I don't remember. It was like I said, I had
i l just walked out -- I had just walked out of the house.
12 Q Could you see the person lighting the cannon?
13 A No.
14 Q Could you see what Rick and Jim did once the
15 cannon was lit?
16 A No.
17 Q Did they run away from it?
18 A I'm only going by what my husband told mow.
19 Q What did he tell you?
20 A He said that, yes, they ran.
21 Q Did your husband tell you who loaded the
22 cannon?
23 A Walt. That's what I was told, Walt did.
24 Q Did your husband tell you who got the powder
25 for the cannon?
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1 A He said a friend of Walt's stopped at some --
2 some store on the way up.
3 Q Was your husband with Rick when Rick spoke to
4 Troth about the cannon earlier on Saturday?
5 A I don't know.
6 Q' Did he ever tell you anything about that?
7 A No.
8 Q Do you know Bob Sgrignoli?
9 A Yes.
10 Q Do you know if he ever brought any fireworks or
11 M-80s or any other devices like that to the camp?
12 A No, I don't remember.
13 Q You said no, I don't remember. Does that mean
14 you don't have any idea?
15 A I don't remember, so I don't have any idea.
16 Q That doesn't mean he didn't necessarily, that
17 just means you don't know whether he did or he didn't?
18 A Correct.
19 Q Did you ever talk to Rick Diamond about what
20 happened?
21 A Yes.
22 Q When?
23 A When? I don't remember. I haven't talked to
24 him that much. My husband talks to him more than I do.
25 Q What did Rick Diamond tell you about what
Page 31
1 happened?
2 A I never really discussed what happened with
3 Rick. I discussed more my injuries and his injuries.
4 Q When you say I never really discussed what
5 happened with Rick, you mean you didn't discuss it at all?
6 A I --no.
7 Q Did you ever inquire of him what happened?
8 A No.
9 Q But to your knowledge, Rick: has discussed this
10 with your husband?
11 A Yes.
12 Q Had your husband told you about any of the
13 discussions he had with Rick?
14 A I don't know.
15 Q You don't know if your husband's ever told you
16 what Rick said to him?
17 A Well, I'm saying I've gotten information from
18 my husband. I don't know if it's partially from what Rick
19 told him or what he remembers.
20 Q Is that the information you gave us before?
21 A Yes.
22 Q Do you remember anything else that might be
23 attributeable to something Rick told your husband?
24 A No.
25 Q Other than your lawyers, has anyone like an
Page 32
1 investigator or another lawyer -- not your own lawyers --
2 spoken to you about what happened?
3 A Any lawyers?
4 Q Lawyer, investigator, anyone who spoke to you
5 in some official capacity. Insurance adjuster.
6 A Well, insurance, that's who our one lawyer is
7 through. I remember shortly after the accident there was
8 a policeman or sheriff that called from up near the cabin,
9 he called us at our house once or twice. And I really
10 don't remember what he all discussed. They were short
11 phone calls.
12 Q Did you ever make a recorded or written
13 statement about these incidents? Recorded, I mean tape
14 recorded. Written, I mean typed, typed on a computer,
15 handwritten, any way it might be recorded on paper or
16 electronically.
17 A I do not recall a taping of anything. I would
18 think just with my lawyer. I don't remember.
19 Q In your lawsuit have you had to answer
20 something called interrogatories, which are written
21 questions to which you have to provide written certified
22 answers? _
23 A Myself, no, My husband, yes. Right now I
24 don't remember. Maybe I'm wrong. It's been three years.
25 Q What was the attitude of the"people at this
Page 33
1 party when Thomas Diamond -- Uncle Tom -- when he was at
2 the party?
3 A Some people didn't mind him being there and
4 some people didn't care for him to be there.
5 Q Why is that?
6 A I really don't know because I don't know him
7 that well. He didn't bother me.
8 Q On the afternoon and evening of July 25th, were
9 you drinking?
10 A Yes, but not much.
11 Q So your condition at the time you observed
12 things during the fireworks display, you were in good
13 enough condition to make and recall these observations?
14 A Yes.
15 Q Did any of the people who were at the party
16 come visit you at the hospital?
17 A No.
18 Q Did Rachel Duffie visit you in the hospital?
19 A She was there when we first went in. I don't
20 remember if she stopped in before he checked out. She
21 might have stopped in. I think she did stop in before he
22 checked out. I talked to -- I think I talked to
23 Margaret -- Margy on the phone. I know I talked to
24 somebody on the phone. I think it was Margy.
25 Q Margy Coyne?
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1 A Yeah.
2 MR. RONCA: That's all I have.
3 MS. TFORP: No questions.
4 EXAMINATION
5 BY MS. KARISS:
6 Q Mrs. Smith, my name is Lori Kariss. I
7 represent Rick Diamond, Four Mile Run Diamond Lodge, and
8 Thomas Dixon Diamond.
9 Do you know who owns Four Mile Diamond Lodge
10 and the surrounding property?
11 A I was told Rick's father and his uncle own it
12 together.
13 Q Who told you that?
14 A My husband.
15 Q Turning your attention back to the Saturday,
16 July 25th, do you know whether your husband left the
17 property other than to, as you described it, ride the
18 bikes with Rick? Did he leave any other time during that
19 day?
20 A Not that I recall.
21 Q Do you know -- do you recall learning that he
22 left another time after the incident? Did he tell you
23 that he left another time?
24 A No.
25 Q He never told you that he made two trips to
Page 35
1 Walt Troth's house?
2 A That's not leaving the property, that's on
3 their property.
4 Q Let's go back. Did he tell you he was at
5 Walt's house or the house Walt was staying in or living in
6 more than one time that day?
7 A No.
8 Q He told you just one time?
9 A He told me about when we went down at the
10 cannon, yeah. He didn't tell me about going down any
11 other time.
12 Q Did he leave to go into town at all that day?
13 A Not that I recall. I mean, people go in town
14 to get ice and things like that all the time.
15 Q And you haven't heard that since? He didn't
16 tell you that after the fact that he had left to go into
17 town?
18 A No.
19 Q Do you know whether Rick Diamond or your
20 husband knew Bill Deaner was in the tent during the
21 fireworks?
22 A I don't know how to answer that. I guess I'd
23 say, no, I don't know whether they knew.
24 Q Did you husband tell you about any discussions
25 he had with anyone about the cannon before it was set off?
Page 36
1 MR. KNIGHT: Object to the form.
2 MS. KARISS: You can answer that.
3 THE WITNESS: What was the question again?
4 BY MS. KARISS:
5 Q Did your husband tell you about any discussions
6 he had with anyone about the cannon before the cannon was
7 set off?
8 A No.
9 Q Did you ever speak with Walter Troth about the
10 cannon after the incident?
11 A No.
12 MS. KARiSS: That's all I have. Thank you.
13 EXAMINATION
14 BY MR. LERMAN:
15 Q Good afternoon. My name's Robert Lerman. I
16 represent Gregory Signor. At the very beginning of your
17 deposition you gave your address, and I didn't hear the
18 street?
19 A 7665 Logging --
20 Q How do you spell that?
21 A L-O-G-G-I-N-G Lane.
22 Q You said that was in Indian Head, Maryland?
23 A Um-hum.
24 Q Thank you. What is the name of your attorney
25 in Philadelphia?
Page 37
1 A Jack McMahon.
2 Q Is he with a firm, do you know, a law firm?
3 MR. MALOUMIAN: He's his own firm.
4 MR. LERMAN: That the same of the firm?
5 MR. MALOUMIAN: (Nods affrinatively.)
6 MR. RONCA: Law offices of Jack McMahon. 1500
7 Walnut Street.
8 MR. LERMAN: Thank you.
9 BY MR. LERMAN:
10 Q I think you said also you're not sure where the
11 lawsuit was filed, correct?
12 A Right.
13 Q Do you know the names of the entities or
14 individuals that were named as defendants in the lawsuit?
15 If so, would you please tell me who they were?
16 A From what I remember, it was Rick Diamond, his
17 uncle Thomas Diamond, the Four Mile Run, and I don't
18 remember if Walt was on there or not. He probably was,
19 but I don't remember.
20 Q Do you remember if there wa s anyone else named
21 on the Complaint as defendants besides those that you just
22 identified?
23 A Not that I recall. I haven't looked at the
24 documentation in a while.
25 MR. LERMAN: Thank you. I have no other
HUGHES, ALBRIGHT, FOLTZ & NATALE Page 34 - Page 37
717-540-0220\717-393-5101
CRYSTAL SMITH Multi-Page""`
NOVEMBER 27- 2001
Page 38
1 questions.
2 MR. KNIGHT: I have no questions.
3 MR. ADDAMS: No questions.
4 MR. RONCA: No questions. You're finished.
5 Thank you for coming.
6 (The deposition was concluded at 6:05 p.m.)
Page 39
COUNTY OFDAUPHIN
1 SS
2 COMMONWEALTH OF PENNSYLVANIA:
3 I, Karen C. Albright, a Notary Public,
4 authorized to administer oaths within and for the
5 Commonwealth of Pennsylvania, do hereby certify that the
6 foregoing is the testimony of CRYSTAL SMITH.
7 1 further certify that before the taking of
8 said deposition, the witness was duly swom; that the
9 questions and answers were taken dawn stenographically by
10 the said Reporter-Notary Public, and afterwards reduced to
11 typewriting under the direction of said Reporter.
12 I further certify that said deposition was
13 taken at the time and place specified in the caption sheet
14 hereby. I further certify that I am not a relative or
15 employee or attorney or counsel to any of the parties, or
16 a relative or employee of such attorney or counsel, or
17 financially interested directly or indirectly in this
18 action.
19 1 further certify that said deposition constitutes
20 a true record of the testimony given by the said witness.
21 IN WITNESS WHEREOF, I have hereunto set my hand
22 this 19th day of January, 2002.
23 KAREN C. ALBRIGHT. RPA
24 Notary Public
Page 38 - Page 39 HUGHES, ALBRIGHT, FOLTZ & NATALE
717-540-0220\717-393-5101
I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP,
do hereby certify that I served a copy of the foregoing document by depositing the same in the
United States mail, first class, postage prepaid, as follows:
Joel H. Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Attorney for Plaintiffs
Charles J. Haddick, Jr, Esquire
DICKIE, MCCAMEY & CHILCOTE, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
Attorney for Defendants Richard Diamond,
Walter Theodore Troth, Four Mile Run Diamond Lodge, Inc.
THOMAS, THOMAS & HAFER, LLP
By:
Bett {. Sheaffer
Date: s/
320240.1
14
THOMAS, THOMAS & HAFER LLP
James K. Thomas, E., Esquire
Identification Number. 15613
Hugh P. O'Neill, ILL Esquire
Identification Number: 69986
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH, : IN THE COURT OF COMMON PLEAS
Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION - LAW
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this day of
2006, upon consideration of
the Motion for Summary Judgment of Defendant Thomas Dixon Diamond and any response
thereto, It is hereby ordered and decreed that said Motion is GRANTED.
It is further ordered that Summary Judgment is entered in favor of Defendant Thomas
Dixon Diamond and against Plaintiffs James and Crystal Smith and all claims or crossclaims are
dismissed against Plaintiff James Smith with prejudice.
BY THE COURT:
J.
cc: Joel H. Merow, Esquire
Charles J. Haddick, Jr, Esquire
THOMAS, THOMAS & HAFER LLP
James K. Thomas, II, Esquire
Identification Number: 15613
Hugh P. O'Neill, III, Esquire
Identification Number: 69986
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
v
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION -LAW
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
THOMAS DIXON DIAMOND
AND NOW, comes Defendant, Thomas Dixon Diamond, by and through his attorneys,
Thomas, Thomas and Hafer, LLP, and hereby moves for Summary Judgment and avers as
follows:
1. Plaintiff initiated this premises liability action against moving Defendant on or
about July 10, 2000. A copy of Plaintiffs' Complaint is attached hereto as Exhibit A.
2. Plaintiff alleges that he sustained certain personal injuries as a result of a cannon
explosion which occurred on or about July 25, 1998.
3. Plaintiff alleges that he was an invitee on July 25, 1998.
4. Plaintiff, James Smith, alleges that as a result of the cannon explosion, he
sustained injuries to his arm, hand, and fingers. See, Exhibit A.
5. On or about November 7, 2005, Defendants served on Plaintiff, James Smith,
Request for Admissions.
6. On or about December 7, 2005, Plaintiff's, James Smith, responses were due to
Defendant's Request for Admissions.
As of the time of the filing of this Motion for Summary Judgment, Plaintiff,
James Smith, has yet to file any response to the Request for Admissions.
8. Pursuant to Pa.R.C.P. 4014, the matters contained in the Request for Admissions
are admitted unless responded to within thirty (30) days. Accordingly, Plaintiff is deemed to
have admitted the allegations contained in Moving Defendant's Request for Admissions. A copy
of the Request for Admissions is attached hereto as Exhibit B.
9. Accordingly, based on Plaintiff's failure to respond to the Request for
Admissions, James Smith is deemed to have admitted for the purposes of this litigation that he
had been present for firework displays at Four Mile Run Diamond Lodge prior to July 25, 1998.
See, Request for Admissions No. 2.
10. Moreover, Plaintiff is deemed to admit that on July 25, 1998, he knew the
fireworks display was dangerous. See, Request for Admission Number 9.
11. Plaintiff is further deemed to have admitted that on July 25, 1998, he knew the
ignition of the cannon was dangerous and that the ignition of the cannon posted a hazard of
personal injury to those in the area of the cannon. See, Request for Admission Numbers 10 and
11.
12. Plaintiff, James Smith, is deemed to have admitted that he was aware that gun
powder was present inside the cannon. See, Request for Admission Number 12.
13. Plaintiff, James Smith, is deemed to have admitted that he purchased some of the
fireworks that were used in the display at Four Mile Run Diamond Lodge on July 25, 1998.
See, Request for Admission Number 13.
14. Plaintiff, James Smith, is further deemed to have admitted that he participated in
bringing the cannon to the Lodge property for use on July 25, 1998. See, Request for
Admission Number 14.
15. Plaintiff, James Smith, is deemed to have admitted that he participated in igniting
the fireworks used on July 25, 1998. See, Request for Admission Number 15.
16. Plaintiff, James Smith, is further deemed to have admitted that he had
conversations about the cannon prior to its ignition and that he inspected the cannon prior to its
ignition. See, Request for Admission Numbers 18 and 19.
17. Plaintiff, James Smith, is deemed to have admitted that he voluntarily chose to be
present for the fireworks display and the ignition of the cannon.
18. Plaintiff, James Smith, is further deemed to have admitted that on July 25, 1998,
he knew gun powder was dangerous, that gun powder could explode and that gun powder inside
the cannon could explode. See, Request for Admission Numbers 20 and 24.
19. Plaintiff, James Smith, is deemed to have admitted that he knew that he should
not stand directly near the cannon immediately after it was ignited. See, Request for Admission
Numbers 26 and 27.
20. The Pennsylvania Supreme Court held in Howell v. Clyde, 620 A.2d 1107 (1993)
that voluntarily participating in a dangerous activity, namely the ignition of gun powder in a
fireworks cannon constituted voluntary assumption of the risk and that the defendant owed no
duty to plaintiff.
21. The defense of assumption of the risk remains a viable defense in the
Commonwealth of Pennsylvania. See, Loughran v. The Phillies, 888 A.2d 872 (Pa. Super.
2005); Hadar v. Avco Coro., 886 A.2d 225 (Pa. Super. 2005); Bullman v. Giuntoli, 761 A.2d 566
(Pa. Super. 2000).
22. In the instant case, through Plaintiff James Smith's failure to respond to
Defendant's Request for Admissions, he is deemed to have voluntarily and knowingly proceeded
to be present in the immediate vicinity when the cannon filled with gun powder was ignited
knowing that the gun powder contained in the cannon could explode. He knew the ignition of
the cannon was dangerous and that the ignition of the cannon posed a hazard of personal injury
to those in the area.
23. Plaintiff, James Smith, has made no attempt to respond in any fashion to the
Request for Admissions.
WHEREFORE, for the reasons set forth above, it is respectfully requested that this
Honorable Court grant Defendant's Motion for Summary Judgment against Plaintiff James
Smith and enter an Order in the form proposed as Plaintiff James Smith assume the risk of injury
posed by the ignition of the cannon on July 25, 1998.
Respectfully submitted,
THOMAS, THOMASWIIAFER, LLP
By:
Jambs *.?omas, II, Esquire
Attorney I.D. No. 15613
Hugh P. O'Neill, III, Esquire
Attorney I.D. No. 69986
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7100
DATE: qb(ab
JAMES SIvIITH AND CRYSTAL SMITH
Plaintiffs,
V.
RICHARD DIAMOND,
WALTER THEODORE TROTH,
FOUR MILE RUN DIAMOND LODGE, INC.,
and THOMAS DIXON DIAMOND
Defendants,
NOTICE
NO. /22-ig&/ Civil
CIVIL ACTION-LAW
Jury Trial Demanded
N? -
YOU HAVE BEEN SUED IN COURT. If you wish to defend against claims set forth in the
following pages, you must take action within twenty (20) days of 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 Plaintiffs. 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 NT
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. r'
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 2493166 or 1-800-990-9108 '
1.•UYVLgc- o/J
?SY90 W(bc.rvvrr ST
SLY, qoo
Q?wo., Pn. ? R ca Z
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
1
JAMES SMITH AND CRI AL SMITH :IN THE COUP )F COMMON PLEAS
Plaintiffs, :OF CUMBERLtuVD COUNTY
V.
NO. Civil
RICHARD DIAMOND,
WALTER THEODORE TROTH, CIVIL ACTION-LAW
FOUR MILE RUN DIAMOND LODGE, INC.,
and THOMAS DIXON DIAMOND Jury Trial Demanded
Defendants,
COMPLAINT
And now comes the Plaintiffs, James Smith and Crystal Smith, by and through their attorney, Jack
McMahen, Esquire, and respectfully aver as follows:
PARTIES
1. Plaintiff James Smith is an adult individual currently residing at 7665 Logging Lane, Indian
Head, Maryland, 20640.
2. - Plaintiff Crystal Smithis anadult individual currently residing at 7665 Logging Lane;tIndian
-
Head, Maryland, 20640.
3. Defendant Richard Diamond is an adult individual currently residing at 11 Fifeshire Court,
Gaithersburg, Maryland.
4. Defendant Four Mile Run Lodge Inc., is a Pennsylvania corporation with a business address
of 529 Springhouse Road, Camp Hill, Cumberland County, Pennsylvania, and is the owner of the
property comprising Four Mile Run Diamond Lodge and Hunting Camp located in Shippen
Township, Cameron County, Pennsylvania which property was the location of the events that give
raise to Plaintiffs' causes-of-action.
5. Defendant Thomas Dixon Diamond is an individual currently residing at 1607 Pine Street,
Philadelphia County, Philadelphia, Pennsylvania, and is an officer of Four Mile Run Diamond
Lodge, Inc.
2
6. Defendant Walter Theodore Troth is an adult individual currently residing at Box 295A,
Emporium, Cameron County, Pennsylvania.
FACTS
7. James Smith and Crystal Smith suffered injuries at the Four-Mile-Run Diamond Lodge, a
hunting camp owned by Four-Mile-Run Diamond Lodge, Inc., located in Shippen Township,
Cameron County, Pennsylvania; hereinafter referred to as "Diamond Lodge",
8. Diamond Lodge is owned by Defendant Four Mile Run Diamond Lodge, Inc. and is
controlled and operated by Defendant Thomas Dixon Diamond and others.
9. Defendant Walter Troth lives near or adjacent to the Diamond Lodge hunting camp/cabin.
10. On or about July 25, 1998, a group of about 28 people, including James Smith, Crystal
Smith, and Richard Diamond, gathered at Diamond Lodge.
11. James Smith and Crystal Smith were guests/invitees of Richard Diamond on July 25, 1998.
12. The Defendants knew that James Smith and Crystal Smith were present at Four-Mile-Run
Diamond Lodge on July 25, 1998.
13. On or about July 25, 1998, Defendant Walter Troth approached Richard Diamond and
showed Defendant Diamond a cannon.
14. Defendant Walter Troth indicated that the cannon could be packed with "black" gunpowder
and ignited as part of a fireworks display at Diamond Lodge.
15. Defendant Walter Troth had previously set off the cannon using black powder and/or blasting
powder utilized normally in mining or demolition.
16. On or about July 25, 1998, Defendant Walter Troth sent a friend, Greg Signor, to Emporium
to purchase black powder for the cannon.
3
IT On or about July 25, 1998, Greg Signor was unable to purchase black powder and bought
smokeless gunpowder, designed for use in modem ammunition reloading, and transported the
smokeless gunpowder to Walter Troth's residence.
18. On or about July 25, 1998, Defendant Walter Troth opened the can of smokeless gun powder
and looked at it.
19. On or about July 25, 1998, Defendant Walter Troth informed Greg Signor that the
gunpowder did not look the same as the black powder he had used in the past.
20. On or about July 25, 1998, Defendant Walter Troth inserted in excess of one-half pound of
smokeless gunpowder into the cannon.
21. On or about July 25, 1998, Defendant Walter Troth packed newspaper and then dirt on top
of the smokeless gunpowder in the cannon and tamped the dirt with a wooden dowel or stick.
22. On or about July 25, 1998, Defendant Richard Diamond arrived at the home of Walter Troth
to pick up the cannon.
23. On or about July 25, 1998, Greg Signor informed Defendant Richard Diamond that
Defendant Walter Troth had put "a lot" of gunpowder with a firework's fuse or wick.
24. On or about July 25, 1998, the cannon supplied by Defendant Walter Troth exploded, causing
debris and shrapnel to be propelled in various directions.
25. As a result of the explosion, pieces of debris and/or shrapnel struck James Smith in the right
arm, hand, and fingers causing severe injury including nerve damage.
26. As a result of the explosion, pieces of debris and/or shrapnel struck Crystal Smith in the right
knee and leg causing severe injury including a broken fibula and nerve damage.
4
COUNT I- Crystal Smith and Jim Smith v. Walter Troth)
27. Paragraphs 1 through 26 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
28. At all relevant times, on July 25, 1998, Defendant Walter Troth had a duty not to injure
James Smith or Crystal Smith.
29. Defendant Walter Troth breached this duty of care and was negligent as follows:
a. Defendant Troth constructed and/or supplied a dangerous and deadly device,
a cannon, which used gunpowder with explosive force;
b. . Defendant Troth provided the cannon to Defendant Richard Diamond and
assisted in loading the cannon with smokeless gunpowder instead of the black powder he
utilized earlier, without reading or following any warnings that came with the smokeless
gunpowder;
C. Defendant Troth participated in the detonation of the smokeless gunpowder
on July 25, 1998 by loading and tamping or by supervising the loading and tamping of the
smokeless gunpowder into the cannon;
d. Defendant Troth constructed or made available to Defendant Richard
Diamond a cannon made of insufficient materials to contain the force and pressure of the
resulting explosion;
. e. Defendant Troth's actions, omissions, conduct, and negligence set forth above
displayed a wanton and reckless indifference to the health, safety, rights, and interests of
others; and,
f. Otherwise violated the laws/ordinances/statutes of the Commonwealth of
Pennsylvania, the United States, and Cameron County.
30. Defendant Walter Troth was aware that one-half to three-quarters of a pound of gunpowder
could apply deadly force, severe injury, and could endanger anyone near the explosion.
31. Defendant Walter Troth's egregious behavior and outrageous conduct was a direct and
proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal
Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant William Troth in an amount in excess
required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT Il- Crystal Smith and Jim Smith v. Richard Diamond)
32. Paragraphs 1 through 31 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
33. At all relevant times on July 25, 1998, Defendant Richard Diamond had a duty not to injure
James Smith and Crystal Smith.
34. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter
Troth was designed to be fired with black powder or blasting powder.
35. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter
Troth was loaded with smokeless gunpowder rather than black powder or blasting powder.
36. Defendant Richard Diamond was told by a witness, Greg Signor, that the cannon had been
loaded with "a lot" of smokeless gunpowder when Diamond received the cannon.
37. Defendant Richard Diamond knew that gunpowder, whether black or smokeless gunpowder,
was an abnormally dangerous product and knew that any gunpowder could detonate or explode
causing injuries to others.
38. The smokeless gunpowder product which was packed or loaded into the cannon was sold in
an original container which was labeled with integral warnings and the packing contained language
indicating the proper use of the gunpowder product.
39. Defendant Richard Diamond had sufficient time and opportunity to read and understand and
6
follow the warnings supplied with the gunpowder and follow the warnings supplied with the
gunpowder used in the fireworks cannon.
40. Defendant Richard Diamond hada duty to read the warning information on the gunpowder
container and packing information before using or igniting the gunpowder.
41. Defendant Richard Diamond did not read the warning information contained on the
gunpowder container or within the packaging materials.
42. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
the gunpowder was to be used for the purpose of reloading ammunition only.
43. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that
smokeless gunpowder never should be substituted for black powder.
44. Defendant Richard Diamond had no specialized knowledge about black powder, smokeless
gunpowder, or ammunition reloading and was aware of his lack of knowledge.
45. Defendant Richard Diamond had sufficient time to see and inspect the cannon prior to its use
and knew that he had no specialized knowledge of cannon or gunpowder safety.
46. Defendant Richard Diamond helped to hand-carry the cannon to the location where it was
ignited.
47. Defendant Richard Diamond placed the cannon within a hundred feet of where James Smith
and Crystal Smith were located.
48. Defendant Richard Diamond had knowledge of where James Smith and Crystal Smith were
located.
49. Defendant Richard Diamond took no special precautions before igniting the cannon such as
checking the area for people, warning spectators, evacuating spectators, removing the cannon to a
7
safe location in case of malfunction, test-firing the cannon at a safe distance, or any other reasonable
and feasible safety precautions.
50. Defendairt,Richard Diamond knew and comprehended the risk of explosion or detonation of
the cannon before he ignited the cannon.
51. Defendant Richard Diamond knew and comprehended the risk that an explosion or
detonation of the cannon could propel shrapnel or other debris.
52. Defendant Richard Diamond ignited the fuse and gunpowder contained in the cannon..
53. Defendant Richard Diamond attempted to flee from the ignited cannon within about ninety
to one hundred feet of invited spectators or guests, including Plaintiffs James Smith and Crystal
Smith who where watching the fireworks show outside a cabin at the Four-Mile Run Lodge.
54. Defendant Richard Diamond breached this duty of care and was negligent as follows:
a. Defendant Richard Diamond ignited a dangerous and deadly device utilizing
approximately one-half to three-quarters of a pound of gunpowder within one hundred (100)
feet of James Smith and Crystal Smith;
b. Defendant Richard Diamond set up and ignited the cannon that he knew was
loaded with smokeless gunpowder instead of black powder;
C. Defendant Richard Diamond ignited and otherwise participated in the
detonation of the smokeless gunpowder packed within the cannon of July 25, 1998;
d. Defendant Richard Diamond failed to take safety precautions to contain the
force and pressure of the intended explosion so as not to injure bystanders;
C. Defendant Richard Diamond failed to take safety precautions such as reading
the warning labels on the original container supplied with the gunpowder used in the cannon;
f. Defendant Richard Diamond failed to take safety precautions such as warning
the surrounding spectators or bystanders such as James and Crystal Smith that had no
specialized knowledge of gunpowder, that the gunpowder was about to be ignited, or warn
of possible malfunction of the cannon;
g. Defendant Richard Diamond failed to evacuate the spectators and bystanders
such as James Smith and Crystal Smith before igniting the cannon;
It. Defendant Richard Diamond failed to position the cannon in a place or
positions as to eliminate or to minimize the risk of harm to others in the event of an explosion
or other malfunction;
I . Defendant Richard Diamond's actions, omissions, conduct, and negligence
set forth above displayed a wanton and reckless indifference to the health, safety, rights, and
interests of others; and,
j. Otherwise violated the laws/ordinances/statutes of the Commonwealth of
Pennsylvania, the United States, and Cameron County.
55. Defendant Richard Diamond was aware that explosion fireworks like the cannon were
extremely dangerous.
56. Defendant Richard Diamond was aware that approximately one-half to three-quarters of a
pound of gun powder could apply deadly force and could endanger anyone near the explosion.
57. Defendant Richard Diamond's egregious behavior and outrageous conduct was a direct and
proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal
Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Richard Diamond in an amount in excess
required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT III- Crystal Smith and Jim Smith v. Four Mile Run Diamond Lodge Inc.
58. Paragraphs 1 through 57 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
59. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., owned,
controlled, and operated the Four Mile Run Diamond Loge comprised of a hunting cabin and
9
surrounding real property.
60. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of
the land, had a duty to control the actions of permissive users of the corporation's property so that
other individuals would not be injured by the negligent, reckless, and dangerous activities of
permissive users of the property.
61. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of
the land, had a duty to control the actions of Richard Diamond as a permissive user of the
corporation's property.
62. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had the ability,
as the owner of the land, to control the actions of permissive users of the corporation's property, such
as Defendant Richard Diamond.
A
63. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had an officer
of the corporation president, Thomas Dixon Diamond, who had the power and authority, as well as
a duty, to control the actions of permissive users of the corporation's property.
64. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the cannon was to be set off as a finale to the fireworks
display.
65. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew the home-made fireworks like the cannon could be extremely
dangerous and hazardous to bystanders.
66. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thgmas Dixon Diamond, knew that the cannon was about to be set off in close proximity
10
to the bystanders and guests including Crystal Smith and James Smith.
67. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew of the location of James Smith and Crystal Smith directly
before the cannon was ignited;
68. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the fireworks cannon would contain gunpowder which
could cause an explosion if used improperly.
69. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. breached its duty
of care and was negligent as a corporation as follows:
a. Defendant failed to control the actions of permissive users of its property,
Defendant Richard Diamond which actions resulted in the injuries to James Smith and
Crystal Smith;
b. Defendant failed to ascertain the type and amount of gunpowder used in the
cannon;
C. Defendant failed to take any safety precautions such as warning the guests at
Diamond Lodge or evacuating the guests to a safe location before the cannon was ignited;
and,
d. Defendant failed to prevent Defendant Richard Diamond from igniting the
cannon.
70. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. was responsible
and liable for the actions of permissive user of its property, Defendant Richard Diamond.
71. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., was responsible
for the actions, negligence and reckless conduct of its officer, Thomas Dixon Diamond.
72. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that explosive fireworks such as the explosives in the cannon
11
were extremely dangerous.
73. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that approximately one half to three-quarters of a pound of
gunpowder could endanger anyone near the explosion.
74. The actions, omissions, conduct, and negligence set forth above of Defendant Four Mile Run
Diamond Lodge displayed a wanton and reckless indifference to the health, safety, rights, and
interests of others.
75. The egregious behavior and outrageous conduct of Defendant Four Mile Run Diamond
Lodge was a direct and proximate cause of aforementioned explosion and the injuries caused to
James Smith and Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Four Mile Run Diamond Lodge in an amount
in excess required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT IV- (Crystal Smith and Jim Smith v. Thomas Dixon Diamond)
76. Paragraphs 1 through 75 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
77. At all relevant times on July 25, 1998, Defendant Thomas Dixon Diamond had a duty not
to injure James and Crystal Smith through his actions or omissions.
78. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by
Walter Troth was designed to be fired with black powder or blasting powder.
79. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by
Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder.
12
80. Defendant Thomas Dixon Diamond knew that gunpowder, whether black powder or
smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could
detonate or explode, causing injuries to others.
81. The smokeless gunpowder product which was packed or loaded into the cannon was sold in
an original container which had integral warnings and the packing contained language indicating the
proper use of the gunpowder product.
82. Defendant Thomas Dixon Diamond had sufficient time and opportunity to read and
understand and to cause Richard Diamond to follow the warnings supplied with the gunpowder used
in the fireworks cannon.
83. Defendant Thomas Dixon Diamond had a duty to read the warning information on the
gunpowder container and packaging information before allowing Richard Diamond to use or ignite
the gunpowder.
84. Defendant Thomas Dixon Diamond did not read the warning information contained on the
gunpowder container or within the packaging materials.
85. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
the gunpowder was to be used for the purpose of reloading ammunition only.
86. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
smokeless gunpowder never should be substituted for black gunpowder.
87. Defendant Thomas Dixon Diamond had no specialized knowledge about black powder,
smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge.
88. Defendant Thomas Dixon Diamond had sufficient time and opportunity to see and inspect
the cannon prior to its use at Diamond Lodge and knew that neither he nor Richard Diamond had
13
any specialized knowledge of the safety of the cannon or gunpowder.
89. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond hand-carry the cannon
to the location where it was ignited.
90. Defendant Thomas Dixon Diamond did not require Defendant Richard Diamond to take
special precautions before igniting the cannon such as familiarizing themselves with the use of
gunpowder, evacuating the spectators, removing the cannon to a safe location in case of malfunction,
reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away
from people, or other reasonable and feasible safety precautions.
91. Defendant Thomas Dixon Diamond knew and comprehended the risk of explosion or
detonation of the cannon before the cannon was ignited.
92. Defendant Thomas Dixon Diamond knew and comprehended the risk that an explosion could
I
propel shrapnel or other debris at least one hundred (100) feet and that debris or shrapnel could reach
James Smith and Crystal Smith from the cannon's location.
93. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite
the cannon within approximately ninety (90) to one hundred (100) feet of invited spectators who
were watching Diamond's fireworks show outside the cabin at the Four-Mile-Run Diamond Lodge.
94. Defendant Thomas Dixon Diamond knew the location of the spectators in relation to the
cannon before the cannon was ignited.
95. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond position and ignite the
cannon within about 118.3 feet of the cabin.
96. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite
the cannon within one hundred (100) feet of James Smith and Crystal Smith who were watching the
14
I
fireworks.
97. Defendant Thomas Dixon Diamond took no precautions to warn any potential spectators.
98. Defendant Thomas Dixon Diamond breached his duty of care and was negligent as follows:
a. Defendant allowed a permissive user of the property owned by Four
Mile Run Diamond Lodge, Inc., to ignite a dangerous and deadly device utilizing
approximately one-half to three-quarters of a pound of gunpowder within one
hundred (100) feet of James Smith and Crystal Smith during a fireworks display;
b. Defendant allowed permissive users of the property at Four Mile Run
Diamond Lodge to set up and ignite the cannon, knowing that it was loaded with
smokeless gunpowder instead of black powder;
C. Defendant failed to stop the ignition of the smokeless gunpowder
packed within the cannon on July 25, 1998;
d. Defendant failed to take reasonable safety precautions and failed to
cause the permissive users of the property to take reasonable safety precautions to
contain the force and pressure of the intended explosion so as not to injure
bystanders;
e. Defendant failed to take safety precautions such as reading the
warning labels on the original container supplied with the gunpowder used in the
cannon;
f. Defendant failed to take safety precautions such as warning the
surrounding spectators or bystanders such as James Smith and Crystal Smith that the
permissive users of the property had no specialized knowledge of gunpowder, that
gunpowder was about to be ignited, or to warn of possible malfunction of the cannon;
g. Defendant failed to evacuate or to cause the permissive users of the
property to evacuate the spectators and bystanders such as James Smith and Crystal
Smith before allowing the ignition of the cannon; and
h. Defendant failed to cause the permissive users of the property to
position the cannon in a place or position as to eliminate or to minimize the risk of
harm to others in the event of an explosion or other malfunction.
99. Defendant Thomas Dixon Diamond was aware that explosive fireworks like the cannon were
extremely dangerous.
15
100. Defendant Thomas Dixon Diamond was aware that approximately one-half to three-quarters
of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion.
101. Defendant Thomas Dixon Diamond's egregious behavior and outrageous conduct was a
direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and
Crystal Smith.
W1EREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Thomas Dixon Diamond in an amount in
excess required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT V - (James Smith and Crystal Smith v. Defendants
102. Paragraphs 1 through 101 are herein incorporated.
103. As a direct and proximate cause of all Defendants negligence and Plaintiffs James Smith's
and Crystal Smith's observation of the results of the explosion, Plaintiffs James and Crystal Smith
were caused to suffer emotional distress and extreme mental pain and suffering.
WHEREFORE, Plaintiffs, James and Crystal Smith, demand judgment of compensatory and
punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond
Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for compulsory arbitration
together with interest, attorneys fees, and costs.
COUNT VI -(James Smith and Crystal Smith v. Defendants
Walter Troth Richard Diamond. Five Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond - Loss of Consortium)
104. Paragraphs 1 through 103 are herein incorporated.
105. A' a result of the aforementioned incident and Defendants' negligence, Plaintiff James Smith
16
has been deprived of society, companionship, services, comfort and consortium of his wife, Crystal
Smith, and may be deprived of the same for an indefinite time into the future.
106. As a result of the aforementioned incident and Defendants' negligence, Plaintiff Crystal
Smith has been deprived of society, companionship, services, comfort and consortium of her
husband, James Smith, and may be deprived of the same for an indefinite time into the future.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile
Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for
compulsory arbitration together with interest, attorneys fees, and costs.
107. Paragraphs 1 through 106 ate herein incorporated.
108. The conduct of Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge,
Inc. and Thomas Dixon Diamond was so wanton, willful and grossly negligent such as to warrant
punitive damages against them on behalf of the Plaintiffs, James Smith and Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond,
Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required
for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT VIII - (James Smith and Crystal Smith v. Defendants
Walter Troth Richard Diamond, Five Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond - Injuries)
109. Paragraphs 1 through 108 are herein incorporated.
17
110. As a result of the negligence of Defendants, Plaintiff James Smith was caused to suffer
injuries including but not limited to right arm, hand and fingers; permanent scarring to arm; injuries
to nerves, tendon, and invertabral discs of arms, legs and hands; he was further caused to suffer
motor and :sensory deficits to right arm and hand, and extreme anxiety and shock to nervous system.
111. As a result of the negligence of Defendants, Plaintiff Crystal Smith was caused to suffer
injuries including but not limited to wounds to right leg; open fracture of right fibula; permanent
scarring; motor sensory deficits to various parts of her body; and extreme anxiety and shock to
nervous system.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond,
Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excesg required
for compulsory arbitration together with interest, attorneys fees, and costs.
Respectfully submitted,
/N ' Xee
J ck McMahon, Esquire
Attorney for Plaintiffs,
James Smith and Crystal Smith
Attorney I.D. #26798
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
(215) 985-4443
18
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, JAMES SMITH, verify that I am the Plaintiff in the foregoing action and that the attached
COMPLAINT, is based upon the information which has been gathered by my counsel in preparation
of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine. I have read
the COMPLAINT and to the extent that it is based upon the information which I have given to my
counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that
the contents of the COMPLAINT are that of counsel, I have relied upon counsel in malting this
Verification.
I understand that intentional false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unsworn falsification made to authorities.
SMITH
Dated: 6- // a 0V"
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, CRYSTAL SMITH, verify that I am the Plaintiff in the foregoing action and that the
attached COMPLAINT, is based upon the information which has been gathered by my counsel in
preparation of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine.
I have read the COMPLAINT and to the extent that it is based upon the information which I have
given to my counsel, it is true and correct to the best of my knowledge, information and belief. To
the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in
making this Verification.
I understand that intentional false statements herein are made subject to the penalties of 18
Ilk
Pa.C.S. §4904 relating to unswom falsification made to authorities.
1 ?i S?L?y
CRYSTAL SMITH
Dated: ?? ?Q
THOMAS, THOMAS & HAFER LLP
James K. Thomas, It., Esquire
Identification Number: 15613
Hugh P. O'Neill, In, Esquire
Identification Number 69986
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
v
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-4861
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendant, Thomas Dixon Diamond, request that Plaintiff, James Smith, admit, pursuant
to the provisions of Pennsylvania Rules of Civil Procedure, the matters set forth below:
The facts set forth below shall be deemed admitted unless Plaintiff James Smith serve
upon Defendant Thomas Dixon Diamond a sworn answer or objection within thirty (30) days
after service of these Request for Admissions.
If objection is made to any fact whose admission is requested, the reason for that
objection shall be stated.
Each answer shall admit or deny the matter or set forth in detail the reason(s) why an
admission or denial cannot truthfully be made.
A denial of any matter shall fairly meet the substance of the requested admission.
When good faith requires Plaintiff James Smith to qualify his answer or deny only a part
of the matter of which an admission is requested, Plaintiff James Smith shall specify so much of
the requested admission as is true and qualify or deny the remainder.
Plaintiff James Smith may not give lack of knowledge or information as a reason for
failure to admit or deny unless he states that he has made reasonable inquiry and that the
information known or readily obtainable to him is insufficient to enable to admit or deny the
requested admission.
Plaintiff James Smith may not object to a requested admission on grounds that the request
presents a genuine issue for trial.
Defendant Thomas Dixon Diamond, by his attorneys, James K. Thomas, II, Esquire,
Michele J. Thorp, Esquire and Thomas, Thomas & Hafer, LLP, hereby request that Plaintiff
James Smith admit the following facts pursuant to Rule 4014 of the Pennsylvania Rules of Civil
Procedure.
Respectfully submitted,
THOMAS, THOMAS & HAFER, LLP
James K. Thomas, II, Esquire
Attorney I.D. No. 15613
Hugh P. O'Neill, III, Esquire
Attorney I.D. No. 69986
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7100
DATE:
2
DEFINITIONS AND INSTRUCTIONS
Unless negated by the context of the Request or Interrogatory, the following definitions
are applicable to all Requests and Interrogatories contained herein:
(A) The term "you", "Plaintiff" and "Plaintiff James Smith" shall mean
and be deemed.to refer to the Plaintiff James Smith and shall also be deemed to refer to, but shall
not be limited to, its employees, units, divisions, attorneys, consultants, sureties, indemnitors,
insurers, investigators and any other agents insofar as the material requested herein is not
privileged.
(B) "Incident" and/or "incident in question" shall mean and be deemed to
refer to the incident that occurred on July 25, 1998, at Four Mile Run Diamond Lodge and which
is the subject of the above-captioned civil action in the Court of Common Pleas of Cumberland
County, Pennsylvania.
(C) "Documents" is an all-inclusive term referring to any writing and/or
recorded or graphic matter, however produced or reproduced. This term also includes electronic
documents of every type and kind. The term "documents" includes, without limitation,
correspondence, memoranda, interoffice communications, e-mails, minutes, reports, notes,
schedules, analyses, drawings, diagrams, graphs, charts, maps, surveys, books of account,
ledgers, invoices, purchase orders, pleadings, questionnaires, contracts, bills, checks, drafts,
diaries, logs, proposals, print-outs, recordings, telegrams, films, and all other such documents
tangible or retrievable of any kind. Documents also include any preliminary notes and drafts of
all the foregoing, in whatever form, for example: printed, typed, longhand, or shorthand on
paper, paper tape, tabulating cards, ribbon blue-prints, magnetic tape, microfilm, films, motion
films, phonograph records, or other form.
3
(D) With respect to documents, the term "identify" means to give the date,
title, author and addressee. Identify with respect to documents further means:
(i) to describe a document sufficiently to enable
the interrogator to know what such document
is and to retrieve it from a file or wherever
it may be located;
(ii) to describe it in a manner suitable for use
as a description in a subpoena;
(iii) to give the name, address, position or title
of the person(s) who has custody of the
document and/or copies thereof;
(iv) you need not identify the document in
accordance with the foregoing if you attach
to your answer a true, correct, and complete
copy of the document.
(E) "Identify" when used in reference to an individual means;
(i) to state his/her full name;
(ii) present residence address or last known
address;
(iii) present or last known business address; and
(iv) whether ever employed by any party to this
action, and, if so, the dates he/she was
employed by such party, the name of the
party, and the last position held as an
employee of such party.
(F) Whenever the expression "and/or" is used in these requests and
interrogatories, the information called for should be set out both in the conjunctive and
disjunctive, and wherever the information is set out in the disjunctive, it should be given
separately for each and every element sought.
4
(G) Whenever a date, amount, or other computation or figure is requested, the
exact date, amount or other computation or figure is to be given unless it is not known; and then
the approximate date, amount or other computation or figure should be given or the best estimate
thereof; and the answer shall state that the date, amount or other computation or figure is an
estimate or approximation.
(H) No answer is to be left blank. If the answer to a request or interrogatory or
any subparagraph of a request or interrogatory is "none" or 'unknown", such statement must
be written in the answer. If the question is inapplicable, "n/a" must be written in the answer. If
an answer is omitted because of the claim of privilege, the basis of the privilege is to be stated.
If the request or interrogatory is objected to, set forth the grounds and reason for the objection. If
the basis for the objection is a privilege, set forth the factual basis and legal reason for the
privilege.
(1) These requests and interrogatories are continuing and any information
secured subsequent to the filing of your answers which would have been included in the answers
had it been known or available, are to be supplied by supplemental answers.
Request for Admissions 1. Admit that James Smith had visited Four Mile Run Diamond Lodge
before July 25, 1998.
Interrogatory No. 1. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
5
Request for Admissions 2. Admit that James Smith had been present for fireworks displays at
Four Mile Run Diamond Lodge prior to July 25, 1998.
Interrogatory No. 2. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
6
Request for Admission 3. Admit that a fireworks display was held on July 25, 1998 at Four
Mile Run Diamond Lodge.
Interrogatory No. 3. If your response to the foregoing Request for Admission is anything other
than an unqualified, admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
7
Request for Admission 4. Admit that the cannon used at Four Mile Run Diamond Lodge on
July 25, 1998 was homemade
Interrogatory No. 4. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
8
Request for Admission 5. Admit that the cannon used at Four Mile Run Diamond Lodge was
not professionally made.
Interrogatory No. 5. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
9
Request for Admission 6. Admit that a cannon was ignited following the fireworks display at
Four Mile Run Diamond Lodge on July 25, 1998.
Interrogatory No. 6. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
10
Request for Admission 7. Admit that James Smith was present for the fireworks display.
Interrogatory No. 7. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
11
Request for Admission 8. Admit that James Smith was present for the ignition of the cannon.
Interrogatory No. 8. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
12
Request for Admission 9. Admit that on July 25, 1998, James Smith knew the fireworks
display was dangerous.
Interrogatory No. 9. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
13
Request for Admission 10. Admit that on July 25, 1998, James Smith knew the ignition of the
cannon was dangerous.
Interrogatory No.10. If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
14
Request for Admission 11. Admit that the ignition of the cannon posed a hazard of personal
injury to those in the area of the cannon.
Interrogatory No. 11. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
15
Request for Admission 12. Admit that on July 25, 1998, James Smith was aware that gun
powder was present inside the cannon.
Interrogatory No. 12. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2, the specific factual basis for your denial.
16
Request for Admission 13. Admit that James Smith brought some of the fireworks that were
used in the display to the Four Mile Run Diamond Lodge on July 25, 1998.
Interrogatory No. 13. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
17
Request for Admission 14. Admit that James Smith participated in bringing the cannon to the
Four Mile Run Diamond Lodge property for use on July 25, 1998.
Interrogatory No. 14. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
18
Request for Admission 15. Admit that James Smith participated in igniting the fireworks used
on July 25, 1998.
Interrogatory No. 15. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
19
Request for Admission 16. Admit that James Smith participated in positioning the cannon for
use on July 25, 1998.
Interrogatory No. 16. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
20
Request for Admission 17. Admit that James Smith assisted in igniting the cannon on July 25,
1998.
Interrogatory No. 17. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
21
Request for Admission 18. Admit that James Smith had conversations about the cannon prior
to its ignition.
Interrogatory No. 18 If your response to the foregoing Request for Admission is anything other
than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
22
Request for Admission 19. Admit that James Smith inspected the cannon prior to its ignition.
Interrogatory No. 19. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
23
Request for Admission 20. Admit that James Smith voluntarily chose to be present for the
fireworks display.
Interrogatory No. 20. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
24
Request for Admission 21. Admit that James Smith voluntarily chose to be present for the
ignition of the cannon.
Interrogatory No. 21. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
25
Request for Admission 22. Admit that James Smith knew the cannon had been made by Walter
Troth.
Interrogatory No. 22. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
26
Request for Admission 23. Admit that on July 25, 1998, James Smith knew gun powder was
dangerous.
Interrogatory No. 23. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
27
Request for Admission 24. Admit that on July 25, 1998, James Smith knew gun powder could
explode.
Interrogatory No. 24. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
28
Ji 1 F
Request for Admission 25. Admit that on July 25, 1998, James Smith knew that gun powder
inside the cannon could explode.
Interrogatory No. 25. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
29
Request fbI' Admission 26. Admit James Smith knew that he should not stand in front of the
cannon immediately after it was ignited.
Interrogatory No. 26. If your response to the foregoing Request for Admission is anything
other than On unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
30
Request for Admission 27. Admit that James Smith knew that he should not stand directly near
to the cannon immediately after it was ignited.
Interrogatory No. 27. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
31
Request for Admission 28. Admit that James Smith voluntarily assisted in the placement of the
cannon.
I
I
Interrogatory No. 28. If your response to the foregoing Request for Admission is anything
other than an unqualified admission, state with specificity the following:
1. each and every reason why you cannot provide an
unqualified admission to the foregoing; and
2. the specific factual basis for your denial.
32
? r
I, Susan Rosario, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do
hereby certify that I served a copy of the foregoing document by depositing the same in the
United States mail, first class, postage prepaid, as follows:
Joel H. Merow, Esq.
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Charles J. Haddick, Jr, Esquire
DICKIE, MCCAMEY & CHILCOTE, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
THOMAS, THOMAS & HAFER, LLP
By:_
Susan Rosario
Date:
320240.1
33
do hereby certify that I served a copy of the foregoing document by depositing the same in the
United States mail, first class, postage prepaid, as follows:
Joel H. Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Attorney for Plaintiffs
Charles J. Haddick, Jr, Esquire
DICKIE, MCCAMEY & CHILCOTE, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
Attorney for Defendants Richard Diamond,
Walter Theodore Troth, Four Mile Run Diamond Lodge, Inc.
THOMAS, THOMAS & HAFER, LLP IA? - //-,
By:
Be {. Sheaffer
Date: -1171J o
320240.1
I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP,
c-> ?,
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JAMES SMITH AND CRYSTAL SMITH
Plaintiffs,
V.
RICHARD DIAMOND,
WALTER THEODORE TROTH,
FOUR MILE RUN DIAMOND LODGE, INC.,
and THOMAS DIXON DIAMOND
Defendants,
NOTICE
NO. IQ2- lle& j Civil
CIVIL ACTION-LAW
Jury Trial Demanded
YOU HAVE BEEN SUED IN COURT. If you wish to defend against claims set forth in the
following pages, you must take action within twenty (20) days of 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 Plaintiffs. 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, PA 17013
(717) 249-3166 or 1-800-990-9108
:IN THE COURT OF COMMON PLEAS
:OF CUMBERLAND COUNTY
JAMES SMITH AND CRYSTAL SMITH
Plaintiffs,
V.
RICHARD DIAMOND,
WALTER THEODORE TROTH,
FOUR MILE RUN DIAMOND LODGE, INC.,
and THOMAS DIXON DIAMOND
Defendants,
COMPLAINT
NO. j V- Y P L I Civil
CIVIL ACTION-LAW
Jury Trial Demanded
And now comes the Plaintiffs, James Smith and Crystal Smith, by and through their attorney, Jack
McMahon, Esquire, and respectfully aver as follows:
PARTIES
1. Plaintiff James Smith is an adult individual currently residing at 7665 Logging Lane, Indian
Head, Maryland, 20640.
2. Plaintiff Crystal Smith is an adult individual currently residing at 7665 Logging Lane, Indian
Head, Maryland, 20640.
3. Defendant Richard Diamond is an adult individual currently residing at 11 Fifeshire Court,
Gaithersburg, Maryland.
4. Defendant Four Mile Run Lodge Inc., is a Pennsylvania corporation with a business address
of 529 Springhouse Road, Camp Hill, Cumberland County, Pennsylvania, and is the owner of the
property comprising Four Mile Run Diamond Lodge and Hunting Camp located in Shippen
Township, Cameron County, Pennsylvania which property was the location of the events that give
raise to Plaintiffs' causes-of-action.
5. Defendant Thomas Dixon Diamond is an individual currently residing at 1607 Pine Street,
Philadelphia County, Philadelphia, Pennsylvania, and is an officer of Four Mile Run Diamond
Lodge, Inc.
:IN THE COURT OF COMMON PLEAS
:OF CUMBERLAND COUNTY
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6. Defendant Walter Theodore Troth is an adult individual currently residing at Box 295A,
Emporium, Cameron County, Pennsylvania.
FACTS
7. James Smith and Crystal Smith suffered injuries at the Four-Mile-Run Diamond Lodge, a
hunting camp owned by Four-Mile-Run Diamond Lodge, Inc., located in Shippen Township,
Cameron County, Pennsylvania; hereinafter referred to as "Diamond Lodge".
8. Diamond Lodge is owned by Defendant Four Mile Run Diamond Lodge, Inc. and is
controlled and operated by Defendant Thomas Dixon Diamond and others.
9. Defendant Walter Troth lives near or adjacent to the Diamond Lodge hunting camp/cabin.
10. On. or about July 25, 1998, a group of about 28 people, including James Smith, Crystal
Smith, and Richard Diamond, gathered at Diamond Lodge.
11. James Smith and Crystal Smith were guests/invitees of Richard Diamond on July 25, 1998.
12. The Defendants knew that James Smith and Crystal Smith were present at Four-Mile-Run
Diamond Lodge on July 25, 1998.
13. On or about July 25, 1998, Defendant Walter Troth approached Richard Diamond and
showed Defendant Diamond a cannon.
14. Defendant Walter Troth indicated that the cannon could be packed with "black" gunpowder
and ignited as part of a fireworks display at Diamond Lodge.
15. Defendant Walter Troth had previously set off the cannon using black powder and/or blasting
powder utilized normally in mining or demolition.
16. On or about July 25, 1998, Defendant Walter Troth sent a friend, Greg Signor, to Emporium
to purchase black powder for the cannon.
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17. On or about July 25, 1998, Greg Signor was unable to purchase black powder and bought
smokeless gunpowder, designed for use in modern ammunition reloading, and transported the
smokeless gunpowder to Walter Troth's residence.
18. On or about July 25, 1998, Defendant Walter Troth opened the can of smokeless gun powder
and looked at it.
19. On or about July 25, 1998, Defendant Walter Troth informed Greg Signor that the
gunpowder did not look the same as the black powder he had used in the past.
20. On or about July 25, 1998, Defendant Walter Troth inserted in excess of one-half pound of
smokeless gunpowder into the cannon.
21. On or about July 25, 1998, Defendant Walter Troth packed newspaper and then dirt on top
of the smokeless gunpowder in the cannon and tamped the dirt with a wooden dowel or stick.
22. On or about July 25, 1998, Defendant Richard Diamond arrived at the home of Walter Troth
to pick up the cannon.
23. On or about July 25, 1998, Greg Signor informed Defendant Richard Diamond that
Defendant Walter Troth had put "a lot" of gunpowder with a firework's fuse or wick.
24. On or about July 25, 1998, the cannon supplied by Defendant Walter Troth exploded, causing
debris and shrapnel to be propelled in various directions.
25. As a result of the explosion, pieces of debris and/or shrapnel struck James Smith in the right
arm, hand., and fingers causing severe injury including nerve damage.
26. As a result of the explosion, pieces of debris and/or shrapnel struck Crystal Smith in the right
knee and leg causing severe injury including a broken fibula and nerve damage.
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COUNT I- Crystal Smith and Jim Smith v Walter Troth
27. Paragraphs 1 through 26 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
28. At all relevant times, on July 25, 1998, Defendant Walter Troth had a duty not to injure
James Smith or Crystal Smith.
29. Defendant Walter Troth breached this duty of care and was negligent as follows:
a. Defendant Troth constructed and/or supplied a dangerous and deadly device,
a cannon, which used gunpowder with explosive force;
b. Defendant Troth provided the cannon to Defendant Richard Diamond and
assisted in loading the cannon with smokeless gunpowder instead of the black powder he
utilized earlier, without reading or following any warnings that came with the smokeless
gunpowder;
C. Defendant Troth participated in the detonation of the smokeless gunpowder
on July 25, 1998 by loading and tamping or by supervising the loading and tamping of the
smokeless gunpowder into the cannon;
d. Defendant Troth constructed or made available to Defendant Richard
Diamond a cannon made of insufficient materials to contain the force and pressure of the
resulting explosion;
e. Defendant Troth's actions, omissions, conduct, and negligence set forth above
displayed a wanton and reckless indifference to the health, safety, rights, and interests of
others; and,
f. Otherwise violated the laws/ordinances/statutes of the Commonwealth of
Pennsylvania, the United States, and Cameron County.
30. Defendant Walter Troth was aware that one-half to three-quarters of a pound of gunpowder
could apply deadly force, severe injury, and could endanger anyone near the explosion.
31. Defendant Walter Troth's egregious behavior and outrageous conduct was a direct and
proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal
Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant William Troth in an amount in excess
required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT II- Crystal Smith and Jim Smith v. Richard Diamond)
32. Paragraphs 1 through 31 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
33. At all relevant times on July 25, 1998, Defendant Richard Diamond had a duty not to injure
James Smith and Crystal Smith.
34. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter
Troth was designed to be fired with black powder or blasting powder.
35. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter
Troth was loaded with smokeless gunpowder rather than black powder or blasting powder.
36. Defendant Richard Diamond was told by a witness, Greg Signor, that the cannon had been
loaded with "a lot" of smokeless gunpowder when Diamond received the cannon.
37. Defendant Richard Diamond knew that gunpowder, whether black or smokeless gunpowder,
was an abnormally dangerous product and knew that any gunpowder could detonate or explode
causing injuries to others.
38. The smokeless gunpowder product which was packed or loaded into the cannon was sold in
an original container which was labeled with integral warnings and the packing contained language
indicating the proper use of the gunpowder product.
39. Defendant Richard Diamond had sufficient time and opportunity to read and understand and
follow the warnings supplied with the gunpowder and follow the warnings supplied with the
gunpowder used in the fireworks cannon.
40. Defendant Richard Diamond had a duty to read the warning information on the gunpowder
container and packing information before using or igniting the gunpowder.
41. Defendant Richard Diamond did not read the warning information contained on the
gunpowder container or within the packaging materials.
42. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
the gunpowder was to be used for the purpose of reloading ammunition only.
43. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that
smokeless gunpowder never should be substituted for black powder.
44. Defendant Richard Diamond had no specialized knowledge about black powder, smokeless
gunpowder, or ammunition reloading and was aware of his lack of knowledge.
45. Defendant Richard Diamond had sufficient time to see and inspect the cannon prior to its use
and knew that he had no specialized knowledge of cannon or gunpowder safety.
46. Defendant Richard Diamond helped to hand-carry the cannon to the location where it was
ignited.
47. Defendant Richard Diamond placed the cannon within a hundred feet of where James Smith
and Crystal Smith were located.
48. Defendant Richard Diamond had knowledge of where James Smith and Crystal Smith were
located.
49. Defendant Richard Diamond took no special precautions before igniting the cannon such as
checking the area for people, warning spectators, evacuating spectators, removing the cannon to a
safe location in case of malfunction, test-firing the cannon at a safe distance, or any other reasonable
and feasible safety precautions.
50. Defendant Richard Diamond knew and comprehended the risk of explosion or detonation of
the cannon before he ignited the cannon.
51. Defendant Richard Diamond knew and comprehended the risk that an explosion or
detonation of the cannon could propel shrapnel or other debris.
52. Defendant Richard Diamond ignited the fuse and gunpowder contained in the cannon.
53. Defendant Richard Diamond attempted to flee from the ignited cannon within about ninety
to one hundred feet of invited spectators or guests, including Plaintiffs James Smith and Crystal
Smith who where watching the fireworks show outside a cabin at the Four-Mile Run Lodge.
54. Defendant Richard Diamond breached this duty of care and was negligent as follows:
a. Defendant Richard Diamond ignited a dangerous and deadly device utilizing
approximately one-half to three-quarters of a pound of gunpowder within one hundred (100)
feet of James Smith and Crystal Smith;
b. Defendant Richard Diamond set up and ignited the cannon that he knew was
loaded with smokeless gunpowder instead of black powder;
C. Defendant Richard Diamond ignited and otherwise participated in the
detonation of the smokeless gunpowder packed within the cannon of July 25, 1998;
d. Defendant Richard Diamond failed to take safety precautions to contain the
force and pressure of the intended explosion so as not to injure bystanders;
e. Defendant Richard Diamond failed to take safety precautions such as reading
the warning labels on the original container supplied with the gunpowder used in the cannon;
f. Defendant Richard Diamond failed to take safety precautions such as warning
the surrounding spectators or bystanders such as James and Crystal Smith that had no
specialized knowledge of gunpowder, that the gunpowder was about to be ignited, or warn
of possible malfunction of the cannon;
g. Defendant Richard Diamond failed to evacuate the spectators and bystanders
such as James Smith and Crystal Smith before igniting the cannon;
h. Defendant Richard Diamond failed to position the cannon in a place or
positions as to eliminate or to minimize the risk of harm to others in the event of an explosion
or other malfunction;
I . Defendant Richard Diamond's actions, omissions, conduct, and negligence
set forth above displayed a wanton and reckless indifference to the health, safety, rights, and
interests of others; and,
j. Otherwise violated the laws/ordinances/statutes of the Commonwealth of
Pennsylvania, the United States, and Cameron County.
55. Defendant Richard Diamond was aware that explosion fireworks like the cannon were
extremely dangerous.
56. Defendant Richard Diamond was aware that approximately one-half to three-quarters of a
pound of gun powder could apply deadly force and could endanger anyone near the explosion.
57. Defendant Richard Diamond's egregious behavior and outrageous conduct was a direct and
proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal
Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Richard Diamond in an amount in excess
required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT III- Crystal Smith and Jim Smith v. Four Mile Run Diamond Lodge Inc.)
58. Paragraphs 1 through 57 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
59. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., owned,
controlled, and operated the Four Mile Run Diamond Loge comprised of a hunting cabin and
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surrounding real property.
60. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of
the land, had a duty to control the actions of permissive users of the corporation's property so that
other individuals would not be injured by the negligent, reckless, and dangerous activities of
permissive users of the property.
61. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of
the land, had a duty to control the actions of Richard Diamond as a permissive user of the
corporation's property.
62. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had the ability,
as the owner of the land, to control the actions of permissive users of the corporation's property, such
as Defendant Richard Diamond.
63. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had an officer
of the corporation president, Thomas Dixon Diamond, who had the power and authority, as well as
a duty, to control the actions of permissive users of the corporation's property.
64. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the cannon was to be set off as a finale to the fireworks
display.
65. On, or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew the home-made fireworks like the cannon could be extremely
dangerous and hazardous to bystanders.
66. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the cannon was about to be set off in close proximity
10
to the bystanders and guests including Crystal Smith and James Smith.
67. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew of the location of James Smith and Crystal Smith directly
before the cannon was ignited;
68. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the fireworks cannon would contain gunpowder which
could cause an explosion if used improperly.
69. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. breached its duty
of care and was negligent as a corporation as follows:
a. Defendant failed to control the actions of permissive users of its property,
Defendant Richard Diamond which actions resulted in the injuries to James Smith and
Crystal Smith;
b. Defendant failed to ascertain the type and amount of gunpowder used in the
cannon;
C. Defendant failed to take any safety precautions such as warning the guests at
Diamond Lodge or evacuating the guests to a safe location before the cannon was ignited;
and,
d. Defendant failed to prevent Defendant Richard Diamond from igniting the
cannon.
70. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. was responsible
and liable for the actions of permissive user of its property, Defendant Richard Diamond.
71. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., was responsible
for the actions, negligence and reckless conduct of its officer, Thomas Dixon Diamond.
72. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that explosive fireworks such as the explosives in the cannon
11
were extremely dangerous.
73. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that approximately one half to three-quarters of a pound of
gunpowder could endanger anyone near the explosion.
74. The actions, omissions, conduct, and negligence set forth above of Defendant Four Mile Run
Diamond Lodge displayed a wanton and reckless indifference to the health, safety, rights, and
interests of others.
75. The egregious behavior and outrageous conduct of Defendant Four Mile Run Diamond
Lodge was a direct and proximate cause of aforementioned explosion and the injuries caused to
James Smith and Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Four Mile Run Diamond Lodge in an amount
in excess required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT IV- (Crystal Smith and Jim Smith v. Thomas Dixon Diamond)
76. Paragraphs 1 through 75 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
77. At all relevant times on July 25, 1998, Defendant Thomas Dixon Diamond had a duty not
to injure Junes and Crystal Smith through his actions or omissions.
78. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by
Walter Troth was designed to be fired with black powder or blasting powder.
79. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by
Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder.
12
80. Defendant Thomas Dixon Diamond knew that gunpowder, whether black powder or
smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could
detonate or explode, causing injuries to others.
81. The smokeless gunpowder product which was packed or loaded into the cannon was sold in
an original container which had integral warnings and the packing contained language indicating the
proper use of the gunpowder product.
82. Defendant Thomas Dixon Diamond had sufficient time and opportunity to read and
understand and to cause Richard Diamond to follow the warnings supplied with the gunpowder used
in the fireworks cannon.
83. Defendant Thomas Dixon Diamond had a duty to read the warning information on the
gunpowder container and packaging information before allowing Richard Diamond to use or ignite
the gunpowder.
84. Defendant Thomas Dixon Diamond did not read the warning information contained on the
gunpowder container or within the packaging materials.
85. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
the gunpowder was to be used for the purpose of reloading ammunition only.
86. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
smokeless gunpowder never should be substituted for black gunpowder.
87. Defendant Thomas Dixon Diamond had no specialized knowledge about black powder,
smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge.
88. Defendant Thomas Dixon Diamond had sufficient time and opportunity to see and inspect
the cannon prior to its use at Diamond Lodge and knew that neither he nor Richard Diamond had
13
any specialized knowledge of the safety of the cannon or gunpowder.
89. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond hand-cant' the cannon
to the location where it was ignited.
90. Defendant Thomas Dixon Diamond did not require Defendant Richard Diamond to take
special precautions before igniting the cannon such as familiarizing themselves with the use of
gunpowder, evacuating the spectators, removing the cannon to a safe location in case of malfunction,
reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away
from people, or other reasonable and feasible safety precautions.
91. Defendant Thomas Dixon Diamond knew and comprehended the risk of explosion or
detonation of the cannon before the cannon was ignited.
92. Defendant Thomas Dixon Diamond knew and comprehended the risk that an explosion could
propel shrapnel or other debris at least one hundred (100) feet and that debris or shrapnel could reach
James Smith and Crystal Smith from the cannon's location.
93. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite
the cannon within approximately ninety (90) to one hundred (100) feet of invited spectators who
were watching Diamond's fireworks show outside the cabin at the Four-Mile-Run Diamond Lodge.
94. Defendant Thomas Dixon Diamond knew the location of the spectators in relation to the
cannon before the cannon was ignited.
95. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond position and ignite the
cannon within about 118.3 feet of the cabin.
96. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite
the cannon within one hundred (100) feet of James Smith and Crystal Smith who were watching the
14
fireworks.
97. Defendant Thomas Dixon Diamond took no precautions to warn any potential spectators.
98. Defendant Thomas Dixon Diamond breached his duty of care and was negligent as follows:
a. Defendant allowed a permissive user of the property owned by Four
Mile Run Diamond Lodge, Inc., to ignite a dangerous and deadly device utilizing
approximately one-half to three-quarters of a pound of gunpowder within one
hundred (100) feet of James Smith and Crystal Smith during a fireworks display;
b. Defendant allowed permissive users of the property at Four Mile Run
Diamond Lodge to set up and ignite the cannon, knowing that it was loaded with
smokeless gunpowder instead of black powder;
C. Defendant failed to stop the ignition of the smokeless gunpowder
packed within the cannon on July 25, 1998;
d. Defendant failed to take reasonable safety precautions and failed to
cause the permissive users of the property to take reasonable safety precautions to
contain the force and pressure of the intended explosion so as not to injure
bystanders;
e. Defendant failed to take safety precautions such as reading the
warning labels on the original container supplied with the gunpowder used in the
cannon;
f. Defendant failed to take safety precautions such as warning the
surrounding spectators or bystanders such as James Smith and Crystal Smith that the
permissive users of the property had no specialized knowledge of gunpowder, that
gunpowder was about to be ignited, or to warn of possible malfunction of the cannon;
g. Defendant failed to evacuate or to cause the permissive users of the
property to evacuate the spectators and bystanders such as James Smith and Crystal
Smith before allowing the ignition of the cannon; and
h. Defendant failed to cause the permissive users of the property to
position the cannon in a place or position as to eliminate or to minimize the risk of
harm to others in the event of an explosion or other malfunction.
99. Defendant Thomas Dixon Diamond was aware that explosive fireworks like the cannon were
extremely dangerous.
15
100. Defendant Thomas Dixon Diamond was aware that approximately one-half to three-quarters
of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion.
101. Defendant Thomas Dixon Diamond's egregious behavior and outrageous conduct was a
direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and
Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Thomas Dixon Diamond in an amount in
excess required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT V - (James Smith and Crystal Smith v. Defendants
Walter Troth. Richard Diamond, Five Mile Run Diamond Lodge Inc
and Thomas Dixon Diamond)
102. Paragraphs 1 through 101 are herein incorporated.
103. As a direct and proximate cause of all Defendants negligence and Plaintiffs James Smith's
and Crystal Smith's observation of the results of the explosion, Plaintiffs James and Crystal Smith
were caused to suffer emotional distress and extreme mental pain and suffering.
WHEREFORE, Plaintiffs, James and Crystal Smith, demand judgment of compensatory and
punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond
Lodge, Inc:. and Thomas Dixon Diamond in an amount in excess required for compulsory arbitration
together with interest, attorneys fees, and costs.
COUNT VI - (James Smith and Crystal Smith v. Defendants
Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond - Loss of Consortium)
104. Paragraphs 1 through 103 are herein incorporated.
105. As a result of the aforementioned incident and Defendants' negligence, Plaintiff James Smith
16
has been deprived of society, companionship, services, comfort and consortium of his wife, Crystal
Smith, and may be deprived of the same for an indefinite time into the future.
106. As a result of the aforementioned incident and Defendants' negligence, Plaintiff Crystal
Smith has been deprived of society, companionship, services, comfort and consortium of her
husband, James Smith, and may be deprived of the same for an indefinite time into the future.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile
Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for
compulsory arbitration together with interest, attorneys fees, and costs.
COUNT VII - (James Smith and Crystal Smith v Defendants
Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond - Punitive Damaged
107. Paragraphs 1 through 106 are herein incorporated.
108. The conduct of Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge,
Inc. and Thomas Dixon Diamond was so wanton, willful and grossly negligent such as to warrant
punitive damages against them on behalf of the Plaintiffs, James Smith and Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond,
Five Mile Run Diamond Lodge, Inc, and Thomas Dixon Diamond in an amount in excess required
for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT VIII - (James Smith and Crystal Smith v. Defendants
Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge. Inc.
and Thomas Dixon Diamond - Injuries)
109. Paragraphs 1 through 108 are herein incorporated.
17
110. As a result of the negligence of Defendants, Plaintiff James Smith was caused to suffer
injuries including but not limited to right arm, hand and fingers; permanent scarring to arm; injuries
to nerves., tendon, and invertabral discs of arms, legs and hands; he was further caused to suffer
motor and sensory deficits to right arm and hand, and extreme anxiety and shock to nervous system.
111. As a result of the negligence of Defendants, Plaintiff Crystal Smith was caused to suffer
injuries including but not limited to wounds to right leg; open fracture of right fibula; permanent
scarring; motor sensory deficits to various parts of her body; and extreme anxiety and shock to
nervous system.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond,
Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required
for compulsory arbitration together with interest, attorneys fees, and costs.
Respectfully submitted,
J ck McMahon, Esquire
Attorney for Plaintiffs,
James Smith and Crystal Smith
Attorney I.D. #26798
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
(215) 985-4443
18
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, JAMES SMITH, verify that I am the Plaintiff in the foregoing action and that the attached
COMPLAINT, is based upon the information which has been gathered by my counsel in preparation
of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine. I have read
the COMPLAINT and to the extent that it is based upon the information which I have given to my
counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that
the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this
Verification.
I understand that intentional false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unswom falsification made to authorities.
SMITH
Dated:
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, CRYSTAL SMITH, verify that I am the Plaintiff in the foregoing action and that the
attached COMPLAINT, is based upon the information which has been gathered by my counsel in
preparation of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine.
I have read the COMPLAINT and to the extent that it is based upon the information which I have
given to my counsel, it is true and correct to the best of my knowledge, information and belief. To
the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in
making this Verification.
I understand that intentional false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unworn falsification made to authorities.
'S 9) (
CRYSTAL SMITH
Dated: ??
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C.J (?
I
V
Y
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
I
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
CIVIL ACTION - LAW
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND, JURY TRIAL DEMANDED
Defendants
NOTICE TO PLEAD
r
TO: James and Crystal Smith
c/o Jack McMahon, Esquire
1500 Walnut Street
Smite 900
Philadelphia, PA 19102
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBIECTIONS
OF DEFENDANT, RICHARD DIAMOND TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20)
DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
Date: August 7, 2000
MARSHALL & HADDICK, P.C.
I • /I n . I ,
Charles E. Haddick, Jr., Esquire
Attorney I.D. No: 55666
Lori Adamcik Kariss, Esquire
Attorney I.D. No: 66465
20 South 36th Street
Camp Hill, PA 17011
(717) 731-4800
Attorney Defendants Richard Diamond, Four Mile
Run Diamond Lodge, Inc., and Thomas Dixon
Diamond,
I t a a , r
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
v.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER
AND NOW, this day of 2000, it is hereby
ORDERED and DECREED that paragraph 56(j) is stricken with prejudice from
Plaintiffs' Complaint and the terms "otherwise participated" and "such as" are
stricken with prejudice from paragraphs 56(c), (e) and (f) of the Plaintiffs' Complaint.
BY THE COURT:
f
JAMES SMITH and CRYSTAL SMITH, IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiffs
No: 2000-4861 (Civil)
V.
CIVIL ACTION - LAW
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND, JURY TRIAL DEMANDED
Defendants
PRELIMINARY OBJECTIONS OF DEFENDANT, RICHARD DIAMOND,
TO PLAINTIFFS' COMPLAINT
AND NOW, comes Defendant, Richard Diamond, by and through his
counsel, Marshall & Haddick, P.C., and files preliminary objections to Plaintiffs'
Complaint as follows:
1. This case arises out of a fireworks accident which occurred on July
25, 1998 at a social gathering at the Four Mile Run Diamond Lodge in Cameron
County Pennsylvania. (See Complaint, attached hereto as Exhibit "A").
2. The Complaint against Richard Diamond sounds in negligence for the
alleged failure to take necessary safety precautions in the ignition of a noisemaking
device, which has been described as a cannon. (See Count 11 of Exhibit "A').
Preliminary objection of Defendant Richard Diamond
pursuant to Pa. R.C.P. 1028(a)(2), 1028 (a)(3) and 1019(a)
3. Defendant, Richard Diamond, hereby incorporates by reference
paragraphs 1 through 2 above as if fully set forth herein.
4. In paragraph 56 of their Complaint, Plaintiffs allege that Richard
Diamond was negligent in the following manner:
C. Defendant Richard Diamond ignited and
otherwise participated in the detonation of the
smokeless gunpowder packed within the cannon
of July 25, 1998;
e. Defendant Richard Diamond failed to take safety
precautions such as reading the warning labels
on the original container supplied with the
gunpowder used in the cannon;
f. Defendant Richard Diamond failed to take safety
precautions such as warning the surrounding
spectators or bystanders such as James and
Crystal Smith that had no specialized knowledge
of gunpowder, that the gunpowder was about to
be ignited, or warn of possible malfunction of
the cannon;
Otherwise violated the laws/ordinances/statutes
of the Commonwealth of Pennsylvania, the
United States, and Cameron County.
See Exhibit A at paragraph 56, emphasis added.
R
5. The Supreme Court of Pennsylvania has held that boilerplate
allegations like those above fail to state a cause of action and should be dismissed
through preliminary objections. See Connor v. Allegheny.General Hospital, 501 Pa.
306, 461 A.2d 600 (1983).
6. The above-referenced allegations fail to apprise Defendant of all of the
conduct which is alleged to be wrongful, and therefore prevent him from
adequately preparing his defense to the allegations against him.
7. Furthermore, allegations such as those in sub-paragraphs 56(c) (e) (f)
and (j) of the Plaintiffs' Complaint are not sufficiently specific to conform to The
Pennsylvania Rules of Civil Procedure, Rule 1019(a), which requires a plaintiff to
clearly plead the material facts upon which a cause of action or claim is based.
8. Pursuant to the Pennsylvania Rules of Civil Procedure, a prelimianry
objection is properly filed to a pleading which fails to conform to law or rule of
court. Pa. R.C.P. 1028(a)(2).
9. The Pennsylvania Rules of Civil Procedure also provide that a
preliminary objection is properly filed to a pleading which is insufficiently specific.
Pa. R.C.P. 1028(a)(3).
WHEREFORE, Defendant, Richard Diamond, respectfully requests that this
Honorable Court strike paragraph 56(j) and the terms "otherwise participated" and
"such as" from paragraphs 56(c), (e) and (f) of the Plaintiffs' Complaint, or in the
alternative, that Plaintiffs be required to file a more specific pleading with regard to
F
the averments contained in paragraphs 56 (c), (e), (f) and (j) of the Plaintiffs'
Complaint.
Date:
Respectfully submitted,
MARSHALL & HADDICK, P.C.
Cl5arles E. Haddick, Jr., Esquire
Attorney I.D. No: 55666
Lori Adamcik Kariss, Esquire
Attorney I.D. No. 66465
20 South 36th Street
Camp Hill, PA 17011
(717) 731-4800
Attorneys for Defendants Richard
Diamond, Four Mile Run Diamond
Lodge, Inc., and Thomas Dixon Diamond
CERTIFICATE OF SERVICE
AND NOW, this fh day of August, 2000, I, Lori Adamcik Kariss, Esquire,
hereby certify that I did serve a true and correct copy of the foregoing document
upon all counsel of record by depositing, or causing to be deposited, same in the
U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
First-Class Mail:
Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiffs
Walter Theodore Troth
Box 295A
Emporium, PA 15834
Defendant
Lori Adamcik Kariss, Esquire
trprrA
`. JAMES: $MITH AND CRYSTAL SMITH
Plaintiffs,
V.'
RICHARD DIAMOND,
WALTER THEODORE TROTH,
FOUR MILE RUN DIAMOND LODGE, INC.,
and THOMAS DIXON DIAMOND
Defendants,
:1N THE COURT OF COMMON PLEAS
:OF CUMBERLAND COUNTY
NO. ,/`W ` - qgl&/ Civil
CIVIL ACTION-LAW
Jury Trial Demanded
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against claims set forth in the
following pages, you must take action within twenty (20) days of 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 Plaintiffs. You may lose money or property or other rights important to you.
,r YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO N
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
C
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL HELP. C' c-?
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166 or 1-800-990-9108
1
JAMES SMITH AND CRYSTAL SMITH
Plaintiffs,
V.
RICHARD DIAMOND,
WALTER THEODORE TROTH,
FOUR MILE RUN DIAMOND LODGE, INC.,
and THOMAS DIXON DIAMOND
Defendants,
:IN THE COURT OF COMMON PLEAS
:OF CUMBERLAND COUNTY
COMPLAINT
NO. Civil
CIVIL ACTION-LAW
Jury Trial Demanded
And now comes the Plaintiffs, James Smith and Crystal Smith, by and through their attorney, Jack
McMahon, Esquire, and respectfully aver as follows:
PARTIES
1. Plaintiff James Smith is an adult individual currently residing at 7665 Logging Lane, Indian
Head, Maryland, 20640.
2. Plaintiff Crystal Smith is an adult individual currently residing at 7665 Logging Lane, Indian
Head, Maryland, 20640.
3. Defendant Richard Diamond is an adult individual currently residing at 11 Fifeshire Court,
Gaithersburg, Maryland.
4. Defendant Four Mile Run Lodge Inc., is a Pennsylvania corporation with a business address
of 529 Springhouse Road, Camp Hill, Cumberland County, Pennsylvania, and is the owner of the
property comprising Four Mile Run Diamond Lodge and Hunting Camp located in Shippen
Township, Cameron County, Pennsylvania which property was the location of the events that give
raise to Plaintiffs' causes-of-action.
5. Defendant Thomas Dixon Diamond is an individual currently residing at 1607 Pine Street,
Philadelphia County, Philadelphia, Pennsylvania, and is an officer of Four Mile Run Diamond
Lodge, Inc.
2
6. Defendant Walter Theodore Troth is an adult individual currently residing at Box 295A,
Emporium, Cameron County, Pennsylvania.
FACTS
7. James Smith and Crystal Smith suffered injuries at the Four-Mile-Run Diamond Lodge, a
hunting camp owned by Four-Mile-Run Diamond Lodge, Inc., located in Shippen Township,
Cameron County, Pennsylvania; hereinafter referred to as "Diamond Lodge".
8. Diamond Lodge is owned by Defendant Four Mile Run Diamond Lodge, Inc. and is
controlled and operated by Defendant Thomas Dixon Diamond and others.
9. Defendant Walter Troth lives near or adjacent to the Diamond Lodge hunting camp/cabin.
10. On or about July 25, 1998, a group of about 28 people, including James Smith, Crystal
Smith, and Richard Diamond, gathered at Diamond Lodge.
11. James Smith and Crystal Smith were guests/invitees of Richard Diamond on July 25, 1998.
12. The Defendants knew that James Smith and Crystal Smith were present at Four-Mile-Run
Diamond Lodge on July 25, 1998.
13. On or about July 25, 1998, Defendant Walter Troth approached Richard Diamond and
showed Defendant Diamond a cannon.
14. Defendant Walter Troth indicated that the cannon could be packed with "black" gunpowder
and ignited as part of a fireworks display at Diamond Lodge.
15. Defendant Walter Troth had previously set off the cannon using black powder and/or blasting
powder utilized normally in mining or demolition.
16. On or about July 25,1998, Defendant Walter Troth sent a friend, Greg Signor, to Emporium
to purchase black powder for the cannon.
3
17. On or about July 25, 1998, Greg Signor was unable to purchase black powder and bought
smokeless gunpowder, designed for use in modern ammunition reloading, and transported the
smokeless gunpowder to Walter Troth's residence.
18. On or about July 25, 1998, Defendant Walter Troth opened the can of smokeless gun powder
and looked at it.
19. On or about July 25, 1998, Defendant Walter Troth informed Greg Signor that the
gunpowder did not look the same as the black powder he had used in the past.
20. On or about July 25, 1998, Defendant Walter Troth inserted in excess of one-half pound of
smokeless gunpowder into the cannon.
21. On or about July 25, 1998, Defendant Walter Troth packed newspaper and then dirt on top
of the smokeless gunpowder in the cannon and tamped the dirt with a wooden dowel or stick.
22. On or about July 25, 1998, Defendant Richard Diamond arrived at the home of Walter Troth
to pick up the cannon.
23. On or about July 25, 1998, Greg Signor informed Defendant Richard Diamond that
Defendant Walter Troth had put "a lot" of gunpowder with a firework's fuse or wick.
24. On or about July 25,1998, the cannon supplied by Defendant Walter Troth exploded, causing
debris and shrapnel to be propelled in various directions.
25. As a result of the explosion, pieces of debris and/or shrapnel struck James Smith in the right
arm, hand, and fingers causing severe injury including nerve damage.
26. As a result of the explosion, pieces of debris and/or shrapnel struck Crystal Smith in the right
knee and leg causing severe injury including a broken fibula and nerve damage.
4
COUNT I- Crystal Smith and Jim Smith v. Walter Troth)
27. Paragraphs 1 through 26 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
28. At all relevant times, on July 25, 1998, Defendant Walter Troth had a duty not to injure
James Smith or Crystal Smith.
29. Defendant Walter Troth breached this duty of care and was negligent as follows:
a. Defendant Troth constructed and/or supplied a dangerous and deadly device,
a cannon, which used gunpowder with explosive force;
b. Defendant Troth provided the cannon to Defendant Richard Diamond and
assisted in loading the cannon with smokeless gunpowder instead of the black powder he
utilized earlier, without reading or following any warnings that came with the smokeless
gunpowder;
C. Defendant Troth participated in the detonation of the smokeless gunpowder
on July 25, 1998 by loading and tamping or by supervising the loading and tamping of the
smokeless gunpowder into the cannon;
d. Defendant Troth constructed or made available to Defendant Richard
Diamond a cannon made of insufficient materials to contain the force and pressure of the
resulting explosion;
C. Defendant Troth's actions, omissions, conduct, and negligence set forth above
displayed a wanton and reckless indifference to the health, safety, rights, and interests of
others; and,
f. Otherwise violated the laws/ordinances/statutes of the Commonwealth of
Pennsylvania, the United States, and Cameron County.
30. Defendant Walter Troth was aware that one-half to three-quarters of a pound of gunpowder
could apply deadly force, severe injury, and could endanger anyone near the explosion.
31. Defendant Walter Troth's egregious behavior and outrageous conduct was a direct and
proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal
Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant William Troth in an amount in excess
required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT II- Crystal Smith and Jim Smith v. Richard Diamond)
32. Paragraphs 1 through 31 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
33. At all relevant times on July 25, 1998, Defendant Richard Diamond had a duty not to injure
James Smith and Crystal Smith.
34. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter
Troth was designed to be fired with black powder or blasting powder.
35. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter
Troth was loaded with smokeless gunpowder rather than black powder or blasting powder.
36. Defendant Richard Diamond was told by a witness, Greg Signor, that the cannon had been
loaded with "a lot" of smokeless gunpowder when Diamond received the cannon.
37. Defendant Richard Diamond knew that gunpowder, whether black or smokeless gunpowder,
was an abnormally dangerous product and knew that any gunpowder could detonate or explode
r
causing injuries to others.
38. The smokeless gunpowder product which was packed or loaded into the cannon was sold in
an original container which was labeled with integral warnings and the packing contained language
indicating the proper use of the gunpowder product.
39. Defendant Richard Diamond had sufficient time and opportunity to read and understand and
6
follow the warnings supplied with the gunpowder and follow the warnings supplied with the
gunpowder used in the fireworks cannon.
40. Defendant Richard Diamond had a duty to read the warning information on the gunpowder
container and packing information before using or igniting the gunpowder.
41. Defendant Richard Diamond did not read the warning information contained on the
gunpowder container or within the packaging materials.
42. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
the gunpowder was to be used for the purpose of reloading ammunition only.
43. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that
smokeless gunpowder never should be substituted for black powder.
44. Defendant Richard Diamond had no specialized knowledge about black powder, smokeless
gunpowder, or ammunition reloading and was aware of his lack of knowledge.
45. Defendant Richard Diamond had sufficient time to see and inspect the cannon prior to its use
and knew that he had no specialized knowledge of cannon or gunpowder safety.
46. Defendant Richard Diamond helped to hand-carry the cannon to the location where it was
ignited.
47. Defendant Richard Diamond placed the cannon within a hundred feet of where James Smith
and Crystal Smith were located.
48. Defendant Richard Diamond had knowledge of where James Smith and Crystal Smith were
located.
49. Defendant Richard Diamond took no special precautions before igniting the cannon such as
checking the area for people, warning spectators, evacuating spectators, removing the cannon to a
7
safe location in case of malfunction, test-firing the cannon at a safe distance, or any other reasonable
and feasible safety precautions.
50. Defendant Richard Diamond knew and comprehended the risk of explosion or detonation of
the cannon before he ignited the cannon.
51. Defendant Richard Diamond knew and comprehended the risk that an explosion or
detonation of the cannon could propel shrapnel or other debris.
52. Defendant Richard Diamond ignited the fuse and gunpowder contained in the cannon.
53. Defendant Richard Diamond attempted to flee from the ignited cannon within about ninety
to one hundred feet of invited spectators or guests, including Plaintiffs James Smith and Crystal
Smith who where watching the fireworks show outside a cabin at the Pour-Mile Run Lodge.
54. Defendant Richard Diamond breached this duty of care and was negligent as follows:
a. Defendant Richard Diamond ignited a dangerous and deadly device utilizing
approximately one-half to three-quarters of a pound of gunpowder within one hundred (100)
feet of James Smith and Crystal Smith;
b. Defendant Richard Diamond set up and ignited the cannon that he knew was
loaded with smokeless gunpowder instead of black powder;
c. Defendant Richard Diamond ignited and otherwise participated in the
detonation of the smokeless gunpowder packed within the cannon of July 25, 1998;
d. Defendant Richard Diamond failed to take safety precautions to contain the
force and pressure of the intended explosion so as not to injure bystanders;
e. Defendant Richard Diamond failed to take safety precautions such as reading
the warning labels on the original container supplied with the gunpowder used in the cannon;
f Defendant Richard Diamond failed to take safety precautions such as warning
the surrounding spectators or bystanders such as James and Crystal Smith that had no
specialized knowledge of gunpowder, that the gunpowder was about to be ignited, or wam
of possible malfunction of the cannon;
g. Defendant Richard Diamond failed to evacuate the spectators and bystanders
such as James Smith and Crystal Smith before igniting the cannon;
h. Defendant Richard Diamond failed to position the cannon in a place or
positions as to eliminate or to minimize the risk of harm to others in the event of an explosion
or other malfunction;
I . Defendant Richard Diamond's actions, omissions, conduct, and negligence
set forth above displayed a wanton and reckless indifference to the health, safety, rights, and
interests of others; and,
j. Otherwise violated the laws/ordinances/statutes of the Commonwealth of
Pennsylvania, the United States, and Cameron County.
55. Defendant Richard Diamond was aware that explosion fireworks like the cannon were
extremely dangerous.
56. Defendant Richard Diamond was aware that approximately one-half to three-quarters of a
pound of gun powder could apply deadly force and could endanger anyone near the explosion.
57. Defendant Richard Diamond's egregious behavior and outrageous conduct was a direct and
proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal
Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Richard Diamond in an amount in excess
required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT III- Crystal Smith and Jim Smith v. Four Mile Run Diamond Lodge Inc.)
58. Paragraphs 1 through 57 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
59. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., owned,
controlled, and operated the Four Mile Run Diamond Loge comprised of a hunting cabin and
9
A
surrounding real property.
60. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of
the land, had a duty to control the actions of permissive users of the corporation's property so that
other individuals would not be injured by the negligent, reckless, and dangerous activities of
permissive users of the property.
61. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of
the land, had a duty to control the actions of Richard Diamond as a permissive user of the
corporation's property.
62. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had the ability,
as the owner of the land, to control the actions of permissive users of the corporation's property, such
as Defendant Richard Diamond.
63. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had an officer
of the corporation president, Thomas Dixon Diamond, who had the power and authority, as well as
a duty, to control the actions of permissive users of the corporation's property.
64. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the cannon was to be set off as a finale to the fireworks
display.
65. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew the home-made fireworks like the cannon could be extremely
dangerous and hazardous to bystanders.
66. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the cannon was about to be set off in close proximity
10
?. x
to the bystanders and guests including Crystal Smith and James Smith.
67. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew of the location of James Smith and Crystal Smith directly
before the cannon was ignited;
68. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that the fireworks cannon would contain gunpowder which
could cause an explosion if used improperly.
69. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. breached its duty
of care and was negligent as a corporation as follows:
a. Defendant failed to control the actions of permissive users of its property,
Defendant Richard Diamond which actions resulted in the injuries to James Smith and
Crystal Smith;
b. Defendant failed to ascertain the type and amount of gunpowder used in the
cannon;
C. Defendant failed to take any safety precautions such as warning the guests at
Diamond Lodge or evacuating the guests to a safe location before the cannon was ignited;
and,
d. Defendant failed to prevent Defendant Richard Diamond from igniting the
cannon.
70. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. was responsible
and liable for the actions of permissive user of its property, Defendant Richard Diamond.
71. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., was responsible
for the actions, negligence and reckless conduct of its officer, Thomas Dixon Diamond.
72. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that explosive fireworks such as the explosives in the cannon
11
, 4 ,
were extremely dangerous.
73. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its
officer, Thomas Dixon Diamond, knew that approximately one half to three-quarters of a pound of _
gunpowder could endanger anyone near the explosion.
74. The actions, omissions, conduct, and negligence set forth above of Defendant Four Mile Run
Diamond Lodge displayed a wanton and reckless indifference to the health, safety, rights, and
interests of others.
75. The egregious behavior and outrageous conduct of Defendant Four Mile Run Diamond
Lodge was a direct and proximate cause of aforementioned explosion and the injuries caused to
James Smith and Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Four Mile Run Diamond Lodge in an amount
in excess required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT IV- (Crystal Smith and Jim Smith v. Thomas Dixon Diamond)
76. Paragraphs 1 through 75 of the foregoing complaint are herein incorporated by reference as
though the same were here set forth at length.
77. At all relevant times on July 25, 1998, Defendant Thomas Dixon Diamond had a duty not
to injure James and Crystal Smith through his actions or omissions.
78. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by
Walter Troth was designed to be fired with black powder or blasting powder.
79. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by
Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder.
12
I I
80. Defendant Thomas Dixon Diamond knew that gunpowder, whether black powder or
smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could
detonate or explode, causing injuries to others.
81. The smokeless gunpowder product which was packed or loaded into the cannon was sold in
an original container which had integral warnings and the packing contained language indicating the
proper use of the gunpowder product.
82. Defendant Thomas Dixon Diamond had sufficient time and opportunity to read and
understand and to cause Richard Diamond to follow the warnings supplied with the gunpowder used
in the fireworks cannon.
83. Defendant Thomas Dixon Diamond had a duty to read the warning information on the
gunpowder container and packaging information before allowing Richard Diamond to use or ignite
the gunpowder.
84. Defendant Thomas Dixon Diamond did not read the warning information contained on the
gunpowder container or within the packaging materials.
85. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
the gunpowder was to be used for the purpose of reloading ammunition only.
86. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that
smokeless gunpowder never should be substituted for black gunpowder.
87. Defendant Thomas Dixon Diamond had no specialized knowledge about black powder,
smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge.
88. Defendant Thomas Dixon Diamond had sufficient time and opportunity to see and inspect
the cannon prior to its use at Diamond Lodge and knew that neither he nor Richard Diamond had
13
1 Il Y ? y
any specialized knowledge of the safety of the cannon or gunpowder.
89. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond hand-carry the cannon
to the location where it was ignited.
90. Defendant Thomas Dixon Diamond did not require Defendant Richard Diamond to take
special precautions before igniting the cannon such as familiarizing themselves with the use of
gunpowder, evacuating the spectators, removing the cannon to a safe location in case of malfunction,
reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away
from people, or other reasonable and feasible safety precautions.
91, Defendant Thomas Dixon Diamond knew and comprehended the risk of explosion or
detonation of the cannon before the cannon was ignited.
92. Defendant Thomas Dixon Diamond knew and comprehended the risk that an explosion could
propel shrapnel or other debris at least one hundred (100) feet and that debris or shrapnel could reach
James Smith and Crystal Smith from the cannon's location.
93. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite
the cannon within approximately ninety (90) to one hundred (100) feet of invited spectators who
were watching Diamond's fireworks show outside the cabin at the Four-Mile-Run Diamond Lodge.
94. Defendant Thomas Dixon Diamond knew the location of the spectators in relation to the
cannon before the cannon was ignited.
95. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond position and ignite the
cannon within about 118.3 feet of the cabin.
96. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite
the cannon within one hundred (100) feet of James Smith and Crystal Smith who were watching the
14
u a
fireworks.
4 h
97. Defendant Thomas Dixon Diamond took no precautions to warn any potential spectators.
98. Defendant Thomas Dixon Diamond breached his duty of care and was negligent as follows:
a. Defendant allowed a permissive user of the property owned by Four
Mile Run Diamond Lodge, Inc., to ignite a dangerous and deadly device utilizing
approximately one-half to three-quarters of a pound of gunpowder within one
hundred (100) feet of James Smith and Crystal Smith during a fireworks display;
b. Defendant allowed permissive users of the property at Four Mile Run
Diamond Lodge to set up and ignite the cannon, knowing that it was loaded with
smokeless gunpowder instead of black powder;
C. Defendant failed to stop the ignition of the smokeless gunpowder
packed within the cannon on July 25, 1998;
d. Defendant failed to take reasonable safety precautions and failed to
cause the permissive users of the property to take reasonable safety precautions to
contain the force and pressure of the intended explosion so as not to injure
bystanders;
e. Defendant failed to take safety precautions such as reading the
warning labels on the original container supplied with the gunpowder used in the
cannon;
f. Defendant failed to take safety precautions such as warning the
surrounding spectators or bystanders such as James Smith and Crystal Smith that the
permissive users of the property had no specialized knowledge of gunpowder, that
gunpowder was about to be ignited, or to warn ofpossible malfunction ofthe cannon;
g. Defendant failed to evacuate or to cause the permissive users of the
property to evacuate the spectators and bystanders such as James Smith and Crystal
Smith before allowing the ignition of the cannon; and
h. Defendant failed to cause the permissive users of the property to
position the cannon in a place or position as to eliminate or to minimize the risk of
harm to others in the event of an explosion or other malfunction.
99. Defendant Thomas Dixon Diamond was aware that explosive fireworks like the cannon were
extremely dangerous.
15
100. Defendant Thomas Dixon Diamond was aware that approximately one-half to three-quarters
of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion.
101. Defendant Thomas Dixon Diamond's egregious behavior and outrageous conduct was a
direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and
Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendant Thomas Dixon Diamond in an amount in
excess required for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT V - (James Smith and Crystal Smith v. Defendants
Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond)
102. Paragraphs 1 through 101 are herein incorporated.
103. As a direct and proximate cause of all Defendants negligence and Plaintiffs James Smith's
and Crystal Smith's observation of the results of the explosion, Plaintiffs James and Crystal Smith
were caused to suffer emotional distress and extreme mental pain and suffering.
WHEREFORE, Plaintiffs, James and Crystal Smith, demand judgment of compensatory and
punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond
Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for compulsory arbitration
together with interest, attorneys fees, and costs.
COUNT VI - (James Smith and Crystal Smith v. Defendants
Walter Troth Richard Diamond Five Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond - Loss of Consortium)
104. Paragraphs )through 103 are herein incorporated.
105. As a result of the aforementioned incident and Defendants' negligence, Plaintiff James Smith
16
, .• .
,
has been deprived of society, companionship, services, comfort and consortium of his wife, Crystal
Smith, and may be deprived of the same for an indefinite time into the future.
106. As a result of the aforementioned incident and Defendants' negligence, Plaintiff Crystal
Smith has been deprived of society, companionship, services, comfort and consortium of her
husband, James Smith, and may be deprived of the same for an indefinite time into the future.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile
Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for
compulsory arbitration together with interest, attorneys fees, and costs.
and Thomas Dixon Diamond -',Punitive Damages)
107. Paragraphs 1 through 106 are herein incorporated.
108. The conduct of Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge,
Inc. and Thomas Dixon Diamond was so wanton, willful and grossly negligent such as to warrant
punitive damages against them on behalf of the Plaintiffs, James Smith and Crystal Smith.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond,
Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required
for compulsory arbitration together with interest, attorneys fees, and costs.
COUNT VIII - Lames Smith and Crystal Smith v. Defendants
Walter Troth Richard Diamond Five Mile Run Diamond Lodge. Inc.
and Thomas Dixon Diamond - Injuries)
109. Paragraphs 1 through 108 are herein incorporated.
17
110. As a result of the negligence of Defendants, Plaintiff James Smith was caused to suffer
injuries including but not limited to right arm, hand and fingers; permanent scarring to arm; injuries
to nerves, tendon, and invertabral discs of arms, legs and hands; he was further caused to suffer
motor and sensory deficits to right arm and hand, and extreme anxiety and shock to nervous system.
111. As a result of the negligence of Defendants, Plaintiff Crystal Smith was caused to suffer
injuries including but not limited to wounds to right leg; open fracture of right fibula; permanent
scarring; motor sensory deficits to various parts of her body; and extreme anxiety and shock to
nervous system.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of
compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond,
Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required
for compulsory arbitration together with interest, attorneys fees, and costs.
Respectfully submitted,
J ck McMahon, Esquire
Attorney for Plaintiffs,
James Smith and Crystal Smith
Attorney I.D. #26798
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
(215) 985-4443
18
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, JAMES SMITH, verify that I am the Plaintiff in the foregoing action and that the attached
COMPLAINT, is based upon the information which has been gathered by my counsel in preparation
of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine. I have read
the COMPLAINT and to the extent that it is based upon the information which I have given to my
counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that
the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this
Verification.
I understand that intentional false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unworn falsification made to authorities.
L
SMITH
Dated: 6- lI )0V"
r „ , • rV
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, CRYSTAL SMITH, verify that I am the Plaintiff in the foregoing action and that the
attached COMPLAINT, is based upon the information which has been gathered by my counsel in
preparation of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine.
I have read the COMPLAINT and to the extent that it is based upon the information which I have
given to my counsel, it is true and correct to the best of my knowledge, information and belief. To
the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in
making this Verification.
I understand that intentional false statements herein are made subject to the penalties of IS
Pa.C.S. §4904 relating to unworn falsification made to authorities.
CRYSTAL SMITH
Dated: ?? ??
••
14??1? Y --?
-
_
?
ea
JAMES SMITH and
CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND,
WALTER THEODORE
TROTH, FOUR MILE
RUN DIAMOND
LODGE, INC., and
THOMAS DIXON
DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-4861 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th day of May, 2003, upon consideration of Defendant Thomas
Dixon Diamond's Motion To Compel Discovery Responses from Plaintiff, Crystal Smith,
a Rule is hereby issued upon Plaintiff Crystal Smith to show cause why the relief
requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
Jack McMahon, Esq.
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiff
Michele J. Thorp, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendants
3.79. 6-3
9-'
FILED -OiTiCE
OF 1 , ?" tr)'110{ RY
03 MAY 29 Pe i l : 5 f
CUMH-RF 'IIJ C-ul l'
PENNSYLVANA
MAY 2 2 2003
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs,
vs.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No.: 2000-4861 (Civil)
CIVIL ACTION - LAW
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN JURY TRIAL DEMANDED
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants.
ORDER OF COURT
AND NOW, this day of
2003 upon consideration of
Defendant's Motion to Compel Answers to Interrogatories and Responses to Request for
Production of Documents, it is hereby ordered that the motion is granted and Plaintiff,
Crystal Smith, is hereby directed and ordered to file full and complete Answers to moving
Defendants' Interrogatories and Responses to Request for Production of Documents
within twenty (20) days of service hereof, or be subject to such sanctions upon application
to the Court.
BY THE COURT:
J.
JAMES SMITH and CRYSTAL SMITH,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiffs,
vs.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
No.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants.
DEFENDANT'S MOTION TO COMPEL
DISCOVERY RESPONSES FROM PLAINTIFF. CRYSTAL SMITH
AND NOW, comes Defendant, Thomas Dixon Diamond, by his attorneys, Thomas,
Thomas & Hafer, LLP, and brings the following Motion to Compel Discovery:
1. This is a personal injury case which arises out of an incident which occurred on
or about July 25, 1998.
2. On or about March 6, 2003, Interrogatories and a Request for Production of
Documents were served on the Plaintiff, Crystal Smith. Copies of the interrogatories and
request for production of documents are attached hereto, incorporated herein by reference
as Exhibits A and B, respectively.
3. Since service of the Defendant's discovery requests, Plaintiff has not responded
in anyway to the Interrogatories or the Request for Production of Documents or served
Objections.
4. The thirty (30) day time period in which to respond to discovery has expired and
Plaintiff's failure to respond to Defendant's Interrogatories and Request for Production of
Documents is delaying the progress of this case.
WHEREFORE, Defendant respectfully requests that this Honorable Court enter an
Order directing the Plaintiff to provide full and complete responses to Interrogatories and
Request for Production of Documents within twenty (20) days of the date of said Order;
Respectfully submitted,
THOMAS, THOMAS & HAFER, LLP
Dated: v/1 ?I /03
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7153
JAMES SMITH and CRYSTAL SMITH
Plaintiffs,
vs.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
INTERROGATORIES OF DEFENDANTS
ADDRESSED TO PLAINTIFF, CRYSTAL SAUTH
PURSUANT TO THE PROVISIONS of the Pennsylvania Rules of Civil Procedure, as
amended, you are required to forward a copy to the undersigned and retain the original, of your
answers and objections, if any, in writing and under oath, to the following Interrogatories, within
thirty (30) days of service hereof.
The Answers shall be inserted in the spaces provided following the interrogatories. If there
is insufficient space to answer an Interrogatory, the remainder of the answer shall follow on a
supplemental sheet.
215655-1
Dt`PENDA
EXHIBIT
- a
DEFINITIONS AND INSTRUCTIONS
A. "DOCUMENT" - writings or recordings of any kind, whether handwritten, typed, or
printed, and including, but not limited to, letters, memoranda, bulletins, orders, photographs,
microfilms, resolutions, books, computer printouts, computer cards, papers, pamphlets, notebooks,
diaries, notes, recording tapes, recording discs, recording wires, manuals, regulations, rules, and
forms.
B. "IDENTIFY" - when used with reference to a person, shall mean and include the full
name, present or last known business address, and if an individual, present or last known home
address; each of his or her employers titles with respect to the period covered by these
Interrogatories; a description of each duty and responsibility held by each such individual. When
used with references to a document or writing, the word "identify" shall mean to include the date
it was written; identify each person to how it was addressed and identify each person to whom a
copy was identified as being directed, identify each person who received a copy of the document or
writing with a description of the document or writing as for instance, "letter", "memorandum";
include the present location and identify its custodian. If any document or writing is no longer in
your possession or subject to your control, state what disposition was made of it, the reason for
such disposition, the date thereof, and identify its current or last known location and custodian.
Whenever you are asked to "identify" an oral communication, the following information should be
given as to each oral communication or which you are aware, whether or not you or others were
present or participated therein. This information includes the means of communication (e.g.
telephone, personal conversation, etc.); where it took place; its date; the names, addresses,
employers and positions of all persons who participated in, or who were involved in the
communication, all other persons who were present during or Nvho overheard that conununication,
215655-1
the substance of who said what to whom and the order in which it was said, and whether that
communication, or any part thereof, was recorded or referred to in any document.
C. "CONCERN", "CONCERNED", or "CONCERNING" - means referring or
relating to, pertaining to, commenting on, or connected with, in any manner whatsoever.
D. "YOU", "YOUR" - means the person in whose name this action is brought, his
employees, officers, representatives, agents, and attorneys, or any person working for such persons.
E, If you claim that the subject matter of a document or oral communication is
privileged., you need not set forth the brief statement of the subject matter of the document, or the
substance of any oral communication called for above. You shall, however, otherwise "identify"
such document or oral communication and shall state each ground on which you claim that such
document or oral communication is privileged.
F. As used herein, the term "STATEMENT" means a written statement signed or
otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical or
other recording, or a transcription thereof, which is a substantially verbatim recital of an oral
statement by the person making it and contemporaneously recorded.
These Interrogatories are deemed to be continuing nature, in accordance with the
provisions of the Pennsylvania Rules of Civil Procedure, as amended. If between the time of
forwarding your original answers to these Interrogatories, and the time of trial of this matter, you
or anyone acting on your behalf leans the identify and location of additional persons having
knowledge of discoverable facts and the identity of persons expected to be called as an expert
witness at trial not disclosed in your Answers, or if you or an expert witness obtain information
upon the basis of which you or he knows that an Answer, was incorrect when made, or knows that
an Answer, though correct when made, is no longer true, then you shall promptly supplement your
215655-1
original Answers under oath to include such information thereafter acquired, and promptly furnish
such a supplemental Answer on the undersigned.
Date: 90 12)
THOMAS, THOMAS & HAFER, LLP
JAMES K. THOMAS, II, ESQUIRE
305 NORTH FRONT STREET
P.O. BOX 999
HARRISBURG, PA 17108-0999
(717) 255-7617
215655-1
1. For Plaintiff, please state:
(a) Your full name;
(b) Each other name, if any, which you have used or by which you have been known;
(c) The name of your spouse at the time of the accident and the date and place of your
marriage to such spouse;
(d) The address of your present residence and the address of each other residence
which you have had during the past five years;
(e) Your present occupation and the name and address of your employer;
(f) Date of your birth;
(g) Your Social Security number;
(h) Your military service and positions held, if any; and
(i) The schools you have attended and the degrees or certificates awarded, if any.
ANSWER:
215655-1
2. List and describe all expenses and losses that you have incurred because of the
incident. [Please do not simply refer to the allegations contained in the Complaint].
ANSWER:
215655-1
Identify each person you intend to call as a non-expert witness at the trial of this
case, and for each person identified, state your relationship with the witness and the
substance of the facts to which the witness is expected to testify.
ANSWER:
215655-1
4. Identify each expert you intend to call as a witness at the trial of this matter, and for
each expert state:
(a) The subject matter about which the expert is expected to testify; and
(b) The substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each opinion.
(You may file as your answer to this interrogatory, the report of the
expert or have the interrogatory answered by your expert.)
ANSWER:
215655.1
5. State in detail the nature of the injuries that you allege have been
suffered as a result of this incident and with specificity, state the
following information:
a. the nature and extent of such injuries;
b. the location of any injuries sustained; and
c. whether any restraint from normal activities was suffered due to the
injuries allegedly sustained.
ANSWER:
215655-1
6. State the medical treatment or procedures that have been performed
in any connection with the injuries allegedly sustained in this
incident. Please also state the name and address of any and all
physicians or doctors who performed any and all procedures and the
dates in which any and all procedures were performed.
ANSWER:
215655-1
If, either prior to or subsequent to the incident, you suffered any injury or disease in
those portions of the body claimed by you to have been affected by the incident
state:
(a) The injury or disease you suffered;
(b) The date and place of any accident, if such injury or disease was caused by an
accident;
(c) The identity of hospitals, doctors, or practitioners who rendered treatment or
examination because of such injury or diseases; and
(d) The identity of anyone against whom a claim was made, and the tribunal and
docket number of any claim or lawsuit that was filed in connection with such injury
or disease.
ANSNVER-
21565-1
8. For the period of three years immediately preceding the date of the incident, state:
(a) the name and address of each of your employers, or if you were self-employed
during any portion of that period, each of your business addresses and the name of
the business while self-employed;
(b) The dates of commencement and termination of each of your periods of
employment or self-employment;
(c) The nature of your occupation in each employment or self-employment; and
(d) The wage, salary, or rate of earnings received by you in each employment or self-
employment, and the amount of income from employment and self-employment for
each year.
ANSWER-
215655-1
9. If you have engaged in one or more gainful occupations subsequent to the date of
the incident, state:
(a) The name and address of each of your employers or, if you were self-employed at
anytime subsequent to the incident, each of your business addresses and the name
of the business while self-employed;
(b) The dates of commencement and termination of each of your periods of
employment or self-employment;
(c) The nature of your occupation in each employment or self-employment;
(d) The wage, salary or rate of earnings received by you in each employment or self-
employment, and the amount of income from employment and self-employment for
each year; and
(e) The date(s) of any absence(s) from your occupation resulting from any injury or
disease suffered in this incident, and the amount of any earnings or other benefits
lost by you because of such absence(s).
ANSWER:
215655-1
10. If, as a result of this incident, you have been unable to perform any of your
customary occupational duties or social or other activities in the same manner as
prior to the incident, state with particularity:
(a) The duties and/or activities you have been unable to perform;
(b) The periods of time you have been unable to perform; and
(c) The identity of all persons having knowledge thereof.
ANSWER:
215655-1
11, Please state the name, address, and telephone number of your family
physician and each and every physician you have consulted in the
last five (5) years prior to the date of this incident, as well as
indicate the date in which Plaintiff last consulted any physician for
any type of physical complaint and the reason for such consultation.
ANS«'ER:
215655-1
12. Do you currently receive treatment or medication for the injuries
allegedly suffered in this incident? If so, please identify the type of
treatment and/or medication.
ANSWER:
215655-1
II Please state for a five (5) year period prior to or at any time
subsequent to the date of this incident, whether you sustained any
injury, illness, or disability other than what you have described in
answer to any of the preceding Interrogatories.
ANSWER:
215655-1
14. If you are making a claim for lost wages as a result of the injuries
you allegedly received in this incident, please indicate the amount of
wages lost and specify the source(s) of any and all lost wages.
ANSR'ER:
215655-1
15. Are you now receiving, or have you ever received, any disability
pension, income, or insurance of workmen's compensation from any
agency, company, person, corporation, state, or government? If so,
please state:
a. The nature of any such payment;
b. The date you received such income;
C. For what injuries or disability you received it, and how such injury
occurred or disability arose;
I By whom paid;
e. Whether you now have any present disability as a result of such
injuries or disability;
f. If so, the nature and extent of such disability;
g. Whether you had any disability at the time of the incident referred to
in the Complaint;
h. If so, the nature and extent of such disability.
ANSWER:
215655-1
16. Have you made a claim for any benefits under any medical pay
coverage or policy of insurance relating to the alleged injuries
suffered in this incident? If so, please state:
a. The name of the insurance company or organization to whom such
claim was made;
b. The date of the claim or application;
C. The claim and policy numbers;
d. Whether or not such claim was paid, and if so, the nature of the
amount received;
e. Whether the company required you to assign to it any rights of
recovery you may have against others.
ANSWER:
215655-1
17. Please give an account, itemized as fully and as carefully as
possible, of all losses and expenses which you claim were incurred
by you as a result of this incident, and please include in your answer,
those losses or expenses which are attributable to hospitals, doctors,
medicines, and/or loss of earning capacity.
ANSWER:
215655-1
M Have you ever been involved in any other legal action for personal
injury, or property damage, either as a Plaintiff or as a Defendant?
If so, please state:
a. the date and place each such action was filed, identifying the name
of the Court, docket number, and attorneys representing each party;
b. a brief description of each such incident or lawsuit; and
c. the result of each such action, whether or not there was an appeal,
and the nature and result of any such appeal.
ANSWER:
215655-I
19, Please identify each document which you intend to introduce at the
time of trial of this matter, and give a brief description of the
contents of the document or thing, and attach copies to your
Answers to these Interrogatories.
ANSWER:
215655-1
CERTIFICATE OF SERVICE
I, Peggy M. Dugas, Paralegal, hereby certify that I have served a true and correct copies of
the foregoing document on the following persons by placing same in the United States mail, postage
prepaid, on the (? -+? day of March, 2003.
Jack McMahon, Esquire
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
THOMAS, THOMAS & HAFER, LLP
215655-1
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs,
VS.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
REQUEST FOR PRODUCTION OF DOCUMENTS
OF DEFENDANTS.DIRECTED:TO.PLAINTIFT CRYSTAL SMITH ,.
Defendant hereby requests that you furnish pursuant to the Pennsylvania Rules of Civil
Procedure, at our expense, or permit the Defendant or someone acting on its behalf to inspect,
examine, and copy the following items concerning this action which are in the possession, custody,
or control of the Plaintiff, counsel for Plaintiff, or any other person or entity acting on behalf of
Plaintiff, including any insurer(s) for Plaintiff. Said items shall be produced or made available for
inspection at the office of Defendant's attorneys located at 305 North Front Street, Harrisburg,
Pemnsylvania within thirty (30) days after service of this Request, on a date and time to be arranged
between counsel:
215732-1
DEFENDANT'S
EXHIBIT
e Q'
1. All photographs showing, representing or purporting to show any of the
instrumentalities, locales, persons, property, and any and all other matters related to the subject
matter of this litigation.
2. All diagrams, sketches, drawings, plans, measurements or blueprints showing,
representing or purporting to show any of the instrumentalities, locales, persons, property, or other
matter involved in the incident which form the basis of Plaintiffs' Complaint or cause of action.
3. All statements, including but not restricted to those defined by Pa.R.C.P. 4003.5,
signed statements, transcripts of recorded statements or interviews, or any memoranda or summary
of transcripts of statements or interviews of any party, person or witness, or their agents or
employees, who have any knowledge or information of the facts concerning or pertaining to the
incident, the subject matter, the claims, the damages, or any other matter involved in or pertaining
to this case.
4. A curriculum vitae as to each expert or experts you have retained to testify on your
behalf at the trial of this case.
All documents prepared by you or by any insurer(s), representative(s), agent(s) or
anyone acting on your behalf, except your attomey(s), during an investigation of any aspect of the
incident in. question. Such documents shall include any documents made or prepared through the
present time with the exclusion of mental impressions, conclusions or opinions respecting the value
or merit of a claim or defense or respecting strategy or tactics.
(NOTE: As referred to herein, "documents" includes written, printed, typed,
recorded or graphic matter, however produced or reproduced, including
correspondence, telegrams, other written communications, data processing
storage units, tapes, videos, films, microfilm, microfiche, contracts,
agreements, notes, memoranda, summaries, analyses, projections, indices,
work papers, studies, test reports, test results, surveys, diaries, calendars,
films, photographs, videos, movies, diagrams, drawings, sketches, minutes of
meetings or any other writing [including copies of the foregoing, regardless of
whether the parties to whom this request is addressed is not in the possession,
custody or control of the original] now in the possession, custody or control of
215732-1
Plaintiff, her former or present counsel, agents, employees, officers, insurers
or any other persons acting on their behalf.)
6. If not otherwise covered by the above Requests, any and all documents regarding
your investigation of the incident in question, with the exclusion of the mental impressions,
conclusions or opinions respecting the value or merit of a claim or defense, or respecting strategy
or tactics.
All documents relating in any way to all damages and losses sustained by Plaintiff.
This should include, but not be limited to medical records, reports, x-rays, etc. medical bills,
invoices, receipts, and all other documents in any way relating to Plaintiff s alleged injuries.
Any release or other agreement between any person or entities given or obtained in
regard to the subject incident.
9. Any and all documents evidencing or pertaining to any lien by any person or entity
against potential recovery of damages by Plaintiff in this action.
10. All documents or exhibits which you intend to offer or identify as exhibits and/or
evidence at any depositions or at the trial of this matter.
11. Any and all documents which evidence any facts on the basis of which it will be
asserted that the Defendant caused or contributed to the happening of the injuries sustained by the
Plaintiff.
12. Any documents identified in your Answers to any set of Interrogatories.
13. All documents which would support any claims for damages averred in Plaintiff s
Complaint.
215732-1
14. Copies of all records and documents reflecting the payment of medical bills for Plaintiff
and the amounts paid in satisfaction of such bills.
THOMAS, THOMAS & HAFER, LLP
James K. Thomas, H, Esquire
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7617
Date: 31410
215732-1
CERTIFICATE OF SERVICE
I, Peggy M. Dugas, Paralegal, hereby certify that I have served a true and correct copies of
the foregoing document on the following persons by placing same in the United States mail, postage
prepaid, on the 6?
day of March, 2003.
Jack McMahon, Esquire
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
215655-1
THOMAS, THOMAS & HAFER, LLP
JAMES SMITH and CRYSTAL SMITH,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiffs,
vs.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
No.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants.
CERTIFICATE OF SERVICE
I, Michele J. Thorp, Esquire, hereby certify that I have served a true and correct copy of the
foregoing document on the following person by placing same in the United States mail, postage
prepaid, on the I `f-"-'day of May, 2003:
Jack McMahon, Esquire
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
r?
.. - ?:?
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.. P J -<,
JAMES SMITH and CRYSTAL SMITH
Plaintiffs
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
OG - J/Pe. ( -4-
NO. 2602-St
-
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVE A SUBPOENA
PURSUANT TO RULE 4009.22
As a Prerequisite to service of a Subpoena for Documents and Things pursuant to Rule
4009.22, Defendants certify that:
1. A Notice of Intent to Serve the Subpoenas with a copy of the Subpoenas attached
thereto was mailed to each party at least twenty (20) days prior to the date on which
the Subpoenas are sought to be served.
2. A copy of the Notice of Intent including the proposed Subpoenas are attached to this
Certificate.
No objection to the Subpoenas has been received.
4. The Subpoenas which will be served are identical to the Subpoenas which are
attached to the Notice of Intent.
THOMAS, THOMAS & HAFER, LLP
James K. Thomas, II, Esquire
I.D. Number: 15613
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7617
DATE:
g/s(03
250546.1
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs i
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE. OF INTENT TO SERVE SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.21
Defendant, Thomas Dixon Diamond, intends to serve subpoenas identical to the ones that
are attached to this notice. You have twenty (20) days from the date listed below in which to file
of record and serve upon the undersigned an objection to the subpoena. If no objection is made,
the subpoena may be served.
THOMAS, THOMAS & HAFER, L.L.P.
JAMES K. THOMAS, H, ESQUIRE
305 NORTH FRONT STREET
P.O. BOX 999
HARRISBURG, PA 17108-0999
(717) 255-7617
Date: --qa'm`.
242811.1
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Cole Medical Center, 1001 E. Second Street, Coudersport, PA 16915.
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL, J. SMITH. SSN: 215-82-4936, D/0113: 12/15/1961, including, but not limited to patient histories, charts,
progress motes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON
NAME: James K. Thomas. II. Esquire
ADDRESS 305 N. Front Street. P. 0. Box 999
Harrisburg, PA 17108
TELEPHONE::(717)255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
Seal of the Court Prothonotary/Clerk, Civil Division V
DATE: .;' t-If a603
Deputy
242785.1
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, George Washington University Hospital, Medical Faculty Associates, 2150 Pennsylvania
Avenue, NW, Washington, DC 20037-3201
(Name or Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II. Esquire
ADDRESS 305 N. Front Street. P. O. Box 999
Harrisburg. PA 17108
TELQPHONE:.(717) 255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
DATE: -JU.OE? a y/ 063
Seal of the Court
Prothonotary/Clerk, Civil Division l/
?A- a' -0.vim
Deputy
242785.2
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Bruce D. Glassman, M.D., 4660 Kenmore Avenue, Suite 1000, Alexandria, VA 22304-1305
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II. Esquire
ADDRESS 305 N. Front Street. P. O. Box 999
Harrisburg. PA 17108
TELEPHONE: (717) 255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
DATE: ljaAjr- a yf A 6Q
Seal of the Court
Prothonotary/Clerk, Civil Division !/
Deputy
242785.3
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Robert S. Berger, M.D., 11355 Pembrooke Square, Suite 108A, Waldorf, MD 20603-4805
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the parry making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with ft.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON
NAME: James . Thomas. II. Esquire
ADDRESS 305 N. Front Street. P. O. Box 999
Harrisburg, PA 17108
TELEPHONE:(717) 255-7617
SUPREME COURT ID No: 15613 -
ATTORNEY FOR: Defendant
DATE: v 7? °Zyr °2c.11:3
Seal of the Court
Prothonotary/Clerk, Civil Division
Deputy
242785.4
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Custodian of Records, St. Charles Orthotic & Prosthesis Enterprises, Inc. (SCOPE), 11885 Holly Lane, Waldorf,
MD 20601-3196
(Name of Person or Entity)
Within twenty (2.0) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL. J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with ft.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II, Esquire
ADDRESS 305 N. Front Street. P. 0. Box 995
Harrisburg, PA 17108
TELEPHONE: (717)255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendan{
DATE: JuJE, ?qt a6(03
Seal of the Court
Prothonotary/Clerk,-Civil Division U
Deputy
242785.5
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Karin Truxun, PT, Child and Adult Rehabilitation Services, Inc., 401 Post Office Road. Suite
101, Waldorf, MD 20602-2738
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with ft.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II, Esquire
ADDRESS 305 N. Front Street. P. O. Box 999
Harrisburg. PA 17108
TELEPHONE: (717) 255-7617
SUPREME COURT ID NO: 15613
ATTORNEY FOR: Defendant
DATE: ?JLP-,-)F. .2yf a063
Seal of the Court
Prothonotary/Clerk, Civil Division
Deputy
242785.6
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Diana McCarthy, MPT, PROCARE Rehabilitation. 3 Post Office Road, Suite 105, Waldorf
MD 20602-2756
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II, Esquire
ADDRESS 305 N. Front Street. P. 0. Box 999
Harrisburg. PA 17108
TELEPHONE:-(717) 255-7617
SUPREME COURT ID No' 15613
ATTORNEY FOR: Defendant
DATE: j"x3F. .2L/I 'Zow
Seal of the Court
Prothonotary/Clerk, Civil Division
Deputy
242785.7
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Mustafa A. Hague, M.D., Hand and UDDer Limb Surgery, G-PHC 3800 Reservoir Road, NW
Washington, DC 20007
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II, Esquire
ADDRESS 305 N. Front Street, P. O. Box 999
Harrisburg. PA 17108
TELEPHONE: (717) 255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
DATE: JU.,JF- -ZL11 X063
Seal of the Court
Prothonotary/Clerk, Civil Division
Deputy
242785.8
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Paul Cooper, M.D., Foot and Ankle Center, Main Bldg/1-West, 3800 Reservoir Road, NW
Washington, DC 20007-2197
(Name of Person or Entity)
Within twenty (210) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II. Esquire
ADDRESS 305 N. Front Street. P. O. Box 999
Harrisburg. PA 17108
TELEPHONE: (717) 255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
DATE: .JLWF- avt 01003
Seal of the Court
l .[ " '
Prothonotary/Clerk, Civil Division
Deputy
242785.9
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
v
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Georgetown Physical Therapy Clinic, 3800 Reservoir Road, NW, Washinqton, DC 2007
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II. Esquire
ADDRESS 305 N. Front Street. P. O. Box 999
Harrisbura. PA 17108
TELEPHONE: (717) 255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
Prothonotary/Clerk, Civil Division
DATE: JLWF- .ZL/r Aoa3
Seal of the Court
Deputy
242785.10
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER,
THEODORE TROTH, FOUR MILE
RUN DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Custodian of Records, Stephen B. Baker, M.D., D.D.S., 3800 Reservoir Road, NW. Room 1027. Washinaton, DC
20007
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
Any and all correspondence, hospitalization and medical records regarding treatment rendered on behalf of
CRYSTAL J. SMITH. SSN: 215-82-4936, D/O/B: 12/15/1961, including, but not limited to patient histories, charts,
progress notes, consultation reports, medication charts, statements of injury, diagnosis, prognosis, x-rays or other
diagnostics, diagnostic test results and reports from July 25, 1998 to the Present.
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of
compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of
preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena
may seek a court order compelling you to comply with ft.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: James K. Thomas. II, Esquire
ADDRESS 305 N. Front Street, P. O. Box 999
Harrisburg. PA 17908
TELEPHONE: (717) 255-7617
SUPREME COURT ID No: 15613
ATTORNEY FOR: Defendant
DATE: jU'-)E'°2yr ,2663
Seal of the Court
Prothonotary/Clerk, Civil Division 61
Deputy
242785.11
CERTIFICATE OF SERVICE
I, R. ick S tains, Jr., a P aralegal for t he 1 aw firm Thomas, T homas & H afer, LLP, h ereby
certify that I have served a true and correct copy of the foregoing document on the following person
by placing same in the United States mail, postage prepaid, on the date set forth below:
Jack McMahon, Esquire
LAW OFFICE OF JACK MCMAHON
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
James R. Ronca, Esquire
SCHMIDT & RONCA PC
209 State Street
Harrisburg, PA 17101
Lori Adamcik Kariss, Esquire
Charles J. Haddick, Jr., Esquire
MARSHALL & HADDICK PC
20 S. 36th Street
Camp Hill, PA 17011
William A. Addams, Esquire
LAW OFFICE OF MICHAEL J. HANFT
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Robert A. Lerman, Esquire
GRIFFITH, STRICKLER, LERMAN,
SOLYMOS & CALKINS
110 South Northern Way
York, PA 17402
Date: Vf ;1113
J. Kenneth Croney, Esquire
40 East Airy Street
HIGH, SWARTZ, ROBERTS & SEIDEL
LLP
Norristown, PA 19404
James F. Mundy, Esquire
RAYNES, MCCARTY, BINDER, ROSS
& MUNDY
1845 Walnut Street, 20a' Floor
Philadelphia, PA 19103
Chris Knight, Esquire
James G. Nealon, II, Esquire
NEALON & GOVER
2411 North Front Street
Harrisburg, PA 17108
THOMAS, THOMAS & HAFER, LLP
By:
Rick Stains, Jr
Paralegal
250546.1
YPpt lf$A:A1Y?f&£Ff§SffibWe ?4•:•,•••,•,?: •...•• ? 5 - ..•
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JAMES SMITH and
CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND,
WALTER THEODORE
TROTH, FOUR MILE
RUN DIAMOND
LODGE, INC., and
THOMAS DIXON
DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-4861 CIVIL TERM
ORDER OF COURT
AND NOW, this II'h day of October, 2004, upon consideration of Defendant,
Thomas Dixon Diamond To Compel Plaintiff, Crystal Smith, To sign Authorizations for
the Release of Medical and Military Records, a Rule is issued upon Plaintiffs to show
cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
,/Jack McMahon, Esq.
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiff
Michele J. Thorp, Esq.
v 305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendants
BY THE COURT,
,O?
06 v ;,
e{.
20 1' 4 El" i 12 1'; ° -3 , k ; ruu
IM Y
A 41 46
OCT 0 7 2004 J(
THOMAS, THOMAS & HAFER ILP
James K. Thomas, 11., Esquire
Identification Number; 15613
Michele 1. Thorp, Esquire
Identification Number: 71117
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH, : IN THE COURT OF COMMON PLEAS
Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA
v
NO. 2000-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION -LAW
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this day of
2004, upon consideration of
Defendant's, Thomas Dixon Diamond, Motion to Compel Plaintiff, Crystal Smith, to sign the
authorization for release of medical records and military records, it is hereby ORDERED AND
DECREED that the Plaintiff shall execute the medical and military authorizations, enabling
Defendant, Thomas Dixon Diamond, to obtain her medical and military records, within twenty
(20) days from the date of this Order. Failure to comply fully with this Order shall subject
Plaintiff(s) to the imposition of sanctions.
By the Court,
d
J.
Y
THOMAS, THOMAS & HAFER LLP
James K. Thomas, I1., Esquire
Identification Number: 15613
Michele J. Thorp, Esquire
Identification Number: 71117
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
JAMES SMITH and CRYSTAL SMITH, : IN THE COURT OF COMMON PLEAS
Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA
v
NO. 200-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION - LAW
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
MOTION OF DEFENDANT, THOMAS DIAMOND DIXON,
TO COMPEL PLAINTIFF, CRYSTAL SMITH, TO SIGN AUTHORIZATIONS FOR
THE RELEASE OF MEDICAL AND MILITARY RECORDS
AND NOW, comes Defendant, Thomas Dixon Diamond, hereinafter ("Moving
Defendant' ') by his attorneys, Thomas, Thomas & Hafer, LLP, and moves your Honorable Court
to Order Plaintiff, Crystal Smith, to produce executed authorizations for Plaintiffs full and
complete medical and military records, and in support thereof avers as follows:
This is a personal injury case which arises out of an incident which occurred on or
about July 25, 1998.
2. On July 10, 2000, Plaintiffs filed a Complaint against Moving Defendant and Co-
Defendants, Richard Diamond, Walter Theodore Troth, Four Mile Run Diamond Lodge, Inc., to
recover damages arising out of an incident on or about July 25, 1998, which allegedly caused
personal injury to Plaintiff, Crystal Smith.
3. On or about August 5, 2003, Moving Defendant sent a correspondence to
plaintiff's counsel, Jack McMahon, Esquire, enclosing two (2) Authorizations for Release of
2
Military Records and Information. A true and correct copy of same are attached hereto as
Exhibit "A".
4. On or about August 13, 2003, Moving Defendant sent a correspondence to
plaintiff's counsel, Jack McMahon, Esquire, enclosing ten (10) Authorizations for Release of
Medical Records and Information. A true and correct copy of same are attached hereto as
Exhibit "B".
5. On or about September 4, 2003, Moving Defendant sent another correspondence
to plaintiff's counsel, Jack McMahon, Esquire, indicating that Authorizations for Release of
Military Records and Information and Authorizations of Release of Medical Records and
Information were sent on or about August 5, 2003 and August 13, 2003, respectively to be
executed by plaintiff, Crystal J. Smith, and as of September 4, 2003, these authorizations had not
been received. A true and correct copy of same is attached hereto as Exhibit "C".
6. On or about March 24, 2004, Moving Defendant sent yet another correspondence
to plaintiff's counsel, Jack McMahon, Esquire, reminding him of the outstanding authorizations,
and if said authorizations were not received by Monday, April 26, 2004, Defendant would have
no choice but to file with this Honorable Court a Motion to Compel. A true and correct copy of
same is attached hereto as Exhibit "D".
To date, plaintiff has failed to execute and return the requested authorizations.
8. Pennsylvania statute 42 Pa.C.S. §5929 which statutorily creates the physician-
patient privilege expressly states that the privilege is waived in civil matters regarding the
patient's personal injury.
9. The information at issue, in the instant case, has the potential to disprove or
mitigate Moving Defendant(s) liability.
3
I
10. Denying Moving Defendant's access to Plaintiff s medical and military records
would be manifestly unfair and prejudicial to Moving Defendant as those records are relevant to
Moving Defendant's development of a defense to refute Plaintiff's injury claims.
11. Moreover, Plaintiff has waived any obligation to production of this material by
filing the instant suit.
14. Plaintiff is represented by Jack McMahon, Esquire, Law Offices of Jack
McMahon, 1500 Walnut Street, Suite 900, Philadelphia, PA 19102.
15. Moving Defendant is represented by James K. Thomas, II, Esquire, and Michele
J. Thorpe, Thomas, Thomas & Hafer, LLP, P.O. Box 999, 305 North Front Street, Harrisburg,
PA 17108.
WHEREFORE Defendant, Thomas Dixon Diamond, respectfully requests that this
Honorable Court issue an Order requiring Plaintiff to sign the two (2) Authorizations for Release
of Military Records and Information and the ten (10) Authorizations for Release of Medical
Records and Information within (20) days, or else suffer sanctions imposed by this honorable
court.
Respectfully Submitted
LLP
Dated: t r> a f
3176 0.1
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
4
Michele J. Thorp, Esquire
Identification No.: 71117
305 North Front Street
ThomasLThomag & Hafer
LLP
ATTORNEYS AT LAW
www.tthlaw.com
305 North Front Street, P.O. Box 999, Harrisburg, PA 17108
Phone: (717) 237-7100 Fax: (717) 237-7105
Rick L. Stains, Jr., Paralegal
(717) 441-7056
rstains@tthlaw.com
August 5, 2003
Jack McMahon
Law Offices of Jack McMahon
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
RE: Smith v. Diamond
Docket No.: 2000-4861 (Civil)
Our File No.: 290.00435
Dear Mr. McMahon:
Enclosed please find two Authorizations for Release of Military Records and Information.
Please have your client, Crystal J. Smith, sign said documents and return to this office in the enclosed
postage pre-paid envelope as soon as possible.
Should you have any questions, please do not hesitate to contact this office.
Sincerely,
THOMAS, THOMAS & HAFER, LLP
By
Rick Stains, Jr.
Paralegal
Enclosure
250575.1
Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 * Phone: (610) 868-1675 • Fax: (610) 868-1702
' , r
AUTHORIZATION FOR RELEASE
OF MILITARY RECORDS
I, CRYSTAL J. SMITH, hereby authorize the UNITED STATES DEPARTMENT
OF THE NAVY to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas & Hafer,
LLP, 305 North Front Street, 6"' Floor, Harrisburg, PA 17108, or any representative thereof,
any and all records, including but not limited to the employee personnel file and
employment records, medical records, disability records, discharge records and all other
documents and records which they may request.
A photostatic copy of this Authorization shall serve in its stead.
SIGNED:
Crystal J. Smith
Social Security Number
Date of Birth
Date
249970.1
I , , r
AUTHORIZATION FOR RELEASE
OF MLITARY RECORDS
I, CRYSTAL J. SNHTH, hereby authorize the CHIEF OF NAVAL OPERATIONS
to furnish to James K. Thomas, 11, Esquire, and Thomas, Thomas & Hafer, LLP, 305 North
Front S treet, 6 ' F loor, Harrisburg, PA 17108, or any representative thereof, any and all
records, including but not limited to the employee personnel file and employment records,
medical records, disability records, discharge records and all other documents and records
which they may request.
A photostatic copy of this Authorization shall serve in its stead.
SIGNED:
Crystal J. Smith
Social Security Number
Date of Birth
Date
zass70.z
'C
Thomas,Thomas & Hafer LLP 7WII
ATTORNEYS AT LAW
www.tthlaw.com
305 North Front Street, P.O. Box 999, Harrisburg, PA 17108
Phone: (717) 237-7100 Fax: (717) 237-7105
Rick L. Stains, Jr., Paralegal
(717) 441-7056
rstains@tthlaw.com
August 13, 2003
Jack McMahon
Law Offices of Jack McMahon
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
RE: Smith v. Diamond
Docket No.: 2000-4861 (Civil)
Our File No.: 290.00435
Dear Mr. McMahon:
Enclosed please find Authorizations for Release of Medical Records and hiformation for each
out-of-state health care provider of your client Crystal J. Smith. In order to expedite discovery in this
matter, please have your client sign said documents and return to this office in the enclosed, postage
pre-paid envelope, at your earliest convenience.
Should you have any questions, please do not hesitate to contact this office.
Sincerely,
THOMAS, THOMAS & HAFER, LLP
By
Rick Stains, Jr.
Paralegal
Enclosures
250577.2
Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702
I I
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: George Washington University Hospital
Medical Faculty Associates
2150 Pennsylvania Avenue, NW
Washington, DC 20037-00435
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, 11, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.1
l ? ? I
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Bruce D. Glassman, M.D.
4660 Kenmore Avenue, Suite 1000
Alexandria, VA 22304-1305
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, ll, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.2
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Robert S. Berger, M.D.
11355'2embrooke Square, Suite 108A
Waldorf, MD 20603-4805
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.3
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Ste Charles Orthotic & Prosthesis Enterprises, Inc. (SCOPE)
11085 Holly Lane
Waldorf, MD 20601-3196
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.4
C
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Karin Truxun, PT
Child and Adult Rehabilitation Services, Inc.
401 Post Office Road, Suite 101
Waldorf, MD 20602-2738
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.5
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Diana McCarthy, MPT
PROCARE Rehabilitation
3 Post Office Road, Suite 105
Waldorf, MD 20602-2756
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.6
I i
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Mustafa A. Haque, M.D.
Hand and Upper Limb Surgery
G-PHC 3800 Reservoir Road, NW
Washington, DC 20007
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.7
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Paul Cooper, M.D.
Foot and Ankle Center
Main Bldg./1 West
38100 Reservoir Road, NW
Washington, DC 20007-2197
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I Wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date
NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.8
I , f
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Georgetown Physical Therapy Clinic
3800 Reservoir Road, NW
Washington, DC 20007
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP, P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.9
AUTHORIZATION FOR RELEASE OF
MEDICAL RECORDS AND INFORMATION
TO: Stephen B. Baker, M.D., D.D.S.
3800 Reservoir Road, NW, Room 1027
Washington, DC 20007
I, Crystal Smith, hereby authorize all physicians, hospitals, therapists, druggists, and all
other healthcare providers to furnish to James K. Thomas, II, Esquire, and Thomas, Thomas &
Hafer, LLP. P. O. Box 999, 305 North Front Street, Harrisburg, Pennsylvania 17108, or any
representative thereof, any and all files, including, but not limited to, medical records, dental
records, chiropractic records, physical therapy records, correspondences, memos, office notes,
photographs, medical charts, data, diagnostic films and reports, bills, insurance forms, mental
health records, psychiatric records, psychological records and all other documents and things that
relate to my care and treatment.
This consent is subject to revocation at any time except to the extent that the person who is
to make the disclosure has already taken action in reliance on it. I hereby release the provider of
said records from any legal responsibility or liability in connection with the release of the records
indicated herein. I understand that if I wish to revoke this authorization, I must do so in writing to
the address at the top of this form, to the attention of the Privacy Officer.
I understand that this Authorization is to be regarded as the written consent required by the
Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143 (50 P.S. §7111.) and written
authorization pursuant to HIPAA, Pub. L. No. 104-191 (Aug. 21, 1996), Standards for Privacy of
Individually Identifiable Health Information, 45 CFR Parts 160 & 164
A photostatic copy of this Authorization shall serve in its stead.
Date NAME
DATE OF BIRTH
SOCIAL SECURITY NUMBER
251919.10
.•.
Thomas, Thomas & Hafer LLP TAI
ATTORNEYS AT LAW
www.tthlaw.com
305 North Front Street, P.O. Box 999, Harrisburg, PA 17108
Phone: (717) 237-7100 Fax: (717) 237-7105
Rick L. Stains, Jr., Paralegal
(717) 441-7056
rstains@tthlaw.com
September 4, 2003
Jack McMahon
Law Offices of Jack McMahon
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
RE: Smith v. Diamond
Docket No.: 2000-4861 (Cavil)
Our File No.: 290.00435
Dear Mr. McMahon:
On or about August 5, 2003, you were forwarded Authorizations for Release of Military
Records and Information to be executed by your client Crystal J. Smith. In addition, on or about
August 13, 2003, you were forwarded Authorizations for Release of Medical Records and Information
for each out-of-state health care provider of your client, Crystal J. Smith. To date, I have not received
any. Please contact me at your earliest convenience and advise me as to when I can expect to receive
these said authorizations.
Thank you for your cooperation in this matter.
Sincerely,
THOMAS, THOMAS & HAFER, LLP
By
Rick Stains, Jr.
Paralegal
250577.3
Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702
Thomas, Thomas & Hafer =
ATTORNEYS AT LAW
305 North Front Street, P.O. Box 999, Harrisburg, PA 17108
Phone: (717) 237-7100 Fax: (717) 237-7105
March 24, 2004
Jack McMahon
Law Offices of Jack McMahon
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
RE: Smith v. Diamond
Docket No.: 2000-4861 (Civil)
Our File No.: 290.00435
Dear Mr. Mclqahon:
www.tthlaw.com
Rick L. Stains, Jr., Paralegal
(717) 441-7056
rstains@tthlaw.com
On or about August 5, 2003, you were forwarded two (2) Authorizations for Release of Military
Records and Information, along with ten (10) Authorizations for Release of Medical Records and
Information on or about August 13, 2003, both sets of which were to be executed by your client Crystal
J. Smith. A follow-up correspondence was sent on or about September 4, 2003, reminding you of these
outstanding authorizations. To date, I have not received any of the authorizations nor any
correspondence or communication regarding this matter. For your convenience, I have again enclosed
two (2) Authorizations for Release of Military Records and Information and ten (10) Authorizations for
Release of Medical Records and Information to be executed by your client, Crystal J. Smith.
Please forward the properly executed authorizations to this office no later than Monday, April
26, 2004, or we will have no choice but to file with the court a Motion to Compel.
Thank you for your anticipated cooperation in this matter.
Sincerely,
THOMAS, THOMAS & HAFER, LLP
By
Rick Stains, Jr.
Paralegal
250577.4
Lehigh Vall?y Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702
>_ . I .
CERTIFICATE OF SERVICE
I, Rick Stains, Jr., a Paralegal for the law offices of Thomas, Thomas & Hafer, LLP, do
hereby certify that I served a copy of the foregoing document by depositing the same in the
United States mail, first class, postage prepaid, as follows:
Jack McMahon, Esquire
LAW OFFICES OF JACK MCMAHON
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
Charles J. Haddick, Jr, Esquire
DICKIE, MCCAMEY & CHILCOTE, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
THOMAS, THOMAS & HAFER, LLP
By:
Rick Stains, Jr., Parale, aI
Date: ld J1/a,
5
- c'-s
-? N
='T
rn
JAMES SMITH AND
CRYSTAL SMITH,
PLAINTIFFS
V.
RICHARD DIAMOND, WALTER
TROTH, FOUR MILE RUN
DIAMOND LODGE, INC.,
AND THOMAS DIXON DIAMOND,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-4861 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT. RICHARD DIAMOND. TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
ORDER OF COURT
AND NOW, this
1L I
day of September, 2000, the preliminary
objections of defendant, Richard Diamond, to plaintiffs' complaint, ARE DISMISSED.
By the
Edgar B. Bayley, J.
Jack McMahon, Esquire
For Plaintiffs
Lori Adamcik Kariss, Esquire
For Richard Diamond
:saa
.c r
rye
CUSR1 t:56
CPENNSYLVAI??RT f
,., ,
MAN
JAMES SMITH and CRYSTAL SMITH,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiffs
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
No: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants
NOTICE TO PLEAD
TO: James and Crystal Smith
c/o Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF
DEFENDANT, THOMAS DIXION DIAMOND TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20)
DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
MARSHALL & HADDICK, P.C.
Date: September 15, 2000
CiMrles E.14addick, Jr., Esquire
Attorney I.D. No: 55666
Lori Adamcik Kariss, Esquire
Attorney I.D. No: 66465
20 South 36th Street
Camp Hill, PA 17011
(717)731-4800
Attorney for Defendant, Richard Diamond, Four Mile
Run Diamond Lodge, Inc., and Thomas Dixon
Diamond
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
V.
CIVIL ACTION - LAW
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants
AND NOW, this
JURY TRIAL DEMANDED
ORDER
day of
2000, it is hereby
ORDERED and DECREED that paragraphs 98(e) and 98 (f) are stricken with
prejudice from Plaintiffs' Complaint.
BY THE COURT:
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN :
DIAMOND LODGE, INC., and THOMAS :
DIXON DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT, THOMAS DIXON DIAMOND,
TO PLAINTIFFS' COMPLAINT
AND NOW, comes Defendant, Thomas Dixon Diamond, by and through his
counsel, Marshall & Haddick, P.C., and files preliminary objections to Plaintiffs'
Complaint as follows:
1. This case arises out of a fireworks accident which occurred on July
25, 1998 at a social gathering at the Four Mile Run Diamond Lodge in Cameron
County Pennsylvania. (See Plaintiffs' Complaint, attached hereto as Exhibit "A").
2. The Complaint against Thomas Dixon Diamond sounds in negligence
for his alleged failure to prevent the accident. (See Count IV of Exhibit "A").
Preliminary objection of Defendant Thomas Dixon Diamond pursuant to
Pa. R.C.P. 1028(a)(2) 1028(a)(3) and 1019(a)
3. Defendant, Thomas Dixon Diamond, hereby incorporates by
reference paragraphs 1 and 2 above as if fully set forth herein.
4. In paragraph 98 of their Complaint, Plaintiffs allege that Thomas
Dixon Diamond was negligent in the following manner:
e. Defendant failed to take safety precautions such
as reading the warning labels on the original
container supplied with the gunpowder used in
the cannon;
f. Defendant failed to take safety precautions such
as warning the surrounding spectators or
bystanders such as James and Crystal Smith that
had no specialized knowledge of gunpowder,
that the gunpowder was about to be ignited, or
warn of possible malfunction of the cannon;
See Exhibit A at paragraph 98, emphasis added.
The Supreme Court of Pennsylvania has held that boilerplate
allegations like those above fail to state a cause of action and should be dismissed
through preliminary objections. See Connor v. Allegheny General Hospital , 501 Pa.
306, 461 A.2d 600 (1983).
Allegations such as those in sub-paragraphs 98(e) and (f) of the
Plaintiffs' Complaint are not sufficiently specific to conform to The Pennsylvania
Rules of Civil Procedure, Rule 1019(a), which requires a plaintiff to clearly plead the
material facts upon which a cause of action or claim is based.
7. Furthermore, the above-referenced allegations fail to apprise
Defendant of all of the conduct which is alleged to be wrongful, and therefore
prevent him from adequately preparing his defense to the allegations against him.
WHEREFORE, Defendant, Thomas Dixon Diamond, respectfully requests
that this Honorable Court strike paragraphs 98 (e) and (f) from the Plaintiffs'
Complaint, or in the alternative, that Plaintiffs be required to file a more specific
pleading with regard to the averments contained in paragraphs 98 (e) and (f) of the
Plaintiffs' Complaint.
Date: L "m
Respectfully submitted,
MARSHALL & HADDICK, P.C.
Charles E. Haddick, Jr., Esquire
Attorney I.D. No: 55666
Lori Adamcik Kariss, Esquire
Attorney I.D. No. 66465
20 South 36th Street
Camp Hill, PA 17011
(717) 731-4800
Attorneys for Defendants Richard
Diamond, Four Mile Run Diamond
Lodge, Inc., and Thomas Dixon Diamond
CERTIFICATE OF SERVICE
AND NOW, this ? day of September, 2000, I, Lori Adamcik Kariss,
Esquire, hereby certify that I did serve a true and correct copy of the foregoing
document upon all counsel of record by depositing, or causing to be deposited,
same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as
follows:
First-Class MaH
Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiffs
Walter Theodore Troth
324 West 4`" Street
Apt. 202
Emporium, PA 15834
Defendant
7N ok" I?
ri Adamcik Kariss, Esquire
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SHERIFF'S RETURN - OUT OF COUNTY
+? CASE NO: 2000-04861 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SMITH JAMES ET AL
VS
DIAMOND RICHARD ET AL
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:
TROTH WALTER THEODORE
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of CAMERON County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On August 7th , 2000 , this office was in receipt of the
attached return from CAMERON
Sheriff's Costs:
Docketing 6.00
Out of County 9.00
Surcharge 10.00
Dep. Cameron Cc 33.50
.00
58.50
08/07/2000
JACK MCMAHON
Sworn and subscribed to before me
;so answ
R. Thomas Kline
Sheriff of Cumberland County
this /Y= day of
A.D.
L Qe4
Prothonotary
CASE NO: 2000-04861 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SMITH JAMES ET AL
VS
DIAMOND RICHARD ET AL
RICHARD SMITH Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
FOUR MILE RUN LODGE INC the
DEFENDANT
, at 0014:30 HOURS, on the 13th day of July , 2000
at 529 SPRING HOUSE ROAD
CAMP HILL„ PA 17011 by handing to
GILBERT F. DIAMOND (PRESIDENT
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 8.06
Affidavit. .00
Surcharge 10.00
.00
36.06
So Answers:
R. Thomas Kline
08/07/2000
JACK MCM
Sworn and Subscribed to before By:
me this IV* day of
La'. ,mot ?2eyc) A.D.
s (- &•O - XPdt
r thonotary
AFFIDAVIT OF SERVICE
James Smith and Crvstal Smith
VS
Richard Diamond, Walter Theodore Troth,
Four Mile Run Diamond Lodge, Inc. and
Thomas Dixon Diamond
Now August 3rd, 2000 at
No. 00-4861 Term
Returnable within
from date of service hereof.
11:00 O'clock AM
days
Served the within Complaint On Walter Theodore Troth
At his place of residence RR#1 Box 295A Emporium, PA 15834
By personally handing to and leaving with him
A true and attested copy of the original Complaint and made known to
the contents thereof.
Sworn to before me this 4th
Day of August A.D. 2000
Z;O PROTHWWXtary.
?
\,i My Commissinn'Eqires
1st Mmu(ay, Tan. 20-1p,
AMUAED(?7 OF SHERIFF'S SERVICE
HATE RECEIVED: July 13th, 2000 DAZE OF SERVICE: August Ird. 2000
NC)-;* 00-4861 TEEM
James Smith and Crystal Smith
VS.
Richard Diamond, Walter Theodore
Troth, Four Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond
TYPE OF ACTION Complaint _
Jack McMahon. Esq.
PLAINTIFF'S ATIORW
XX SERVICE WAS MADE UECN Walter T. Troth RE THE ABOVE CAPTIONED ACTION.
RERENED NON EST INVENIUS (PERSON Ill BE MWED CANNOT HE FU M WrMJ THE NRISDICTION)
/ly'1li NZE. DUE
JAMES J.
SHERIFF
CHECK NJ. 29139
DATE OF REF@ID August 4th 2.000
LCAE&IMHORUT Y
Xl= OF ADVANCE PAID $75.00
SHERIFF'S COS-I'S $33.50
REFUND/BALANCE DUE $41.50
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.
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CAPTION OF CASE
(entire caption must be stated in full)
JAMES SMITH and CRYSTAL SMITH,
(Plaintiff)
VS.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
(Defendant)
No. 2000-4861 Civil Term -
1. State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer
to complaint, etc.):
Defendant, Thomas Dixon Diamond's Preliminary Objections to Plaintiff's Complaint
2. Identify counsel who will argue case:
a. for Plaintiff: lack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
b. for Defendant: Charles E. Haddick, Jr., Esquire
Lori Adamcik Kariss, Esquire
20 South 36' Street
Camp Hill, PA 17011
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: December 1, 2000
Dated: September 15, 2000
Lori Adamcik Kariss, Esquire
(Attorney for Defendant)
JACK McMAHON, Esquire
LD. No. 26798
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
(215) 985-4443 Attorney for Defendant
James and Crystal Smith CUMBERLAND COUNTY
COURT NO. 00-4861
V. Civil Action
Four Mile Run Diamond Lodge Inc. et al.
Affidavit
STATE OF PENNSYLVANIA
COUNTY OF PHILADELPHIA SS:
I, Jack McMahon, do hereby swear or affirm, that on the 15th day of July, 2000. I
served by Certified U.S. First Class Mail, Return Receipt Requested, the within Complaint and
Notice on Richard Diamond at 11 Fifeshire Court, Gaithersburg, Maryland 20879. (A copy of the
return receipt is attached as Exhibit "A".)
JA & McMAHON, ESQUIRE
Sworn and subscribed before:
me this
day of September, 2000.
EXHIBIT "A"
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or on the front if space permits ` see
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1. Article Addressed to: If YES, enter delivery address below: ? No
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2. Article Number (Copy /rom service label)
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PS Form 3811, July 1999 Domestic Return Receipt 102595-94M-1789
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(Domestic Mail Only,: No inzuranca Covezage Frovide d)
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-04861 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SMITH JAMES ET AL
VS
DIAMOND RICHARD ET AL
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:
TROTH WALTER THEODORE
but was unable to locate Him
deputized the sheriff of CAMERON
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On August 7th , 2000 , this office was in receipt of the
attached return from CAMERON
Sheriff's Costs:
Docketing 6.00
Out of County 9.00
Surcharge 10.00
Dep. Cameron Co 33.50
.00
58.50
08/07/2000
JACK MCMAHON
Sworn and subscribed to before me
this _ day of
A. D.
in his bailiwick. He therefore
;So answ
R. Thomas Kline
Sheriff of Cumberland County
Prothonotary
AFFIDAVIT OF SERVICE
James Smith and Crvstal Smith
VS
Richard Diamond, Walter Theodore Troth,
Four Mile Run Diamond Lodge, Inc. and
Thomas Dixon Diamond
No. 00-4861 Term
Complaint
Returnable within days
from date of service hereof.
Now August 3rd, 2000 at 11:00 O'clock AM
Served thewithin_ Complaint On Walter Theodore Troth
At his place of residence, RR#l Box 295A, Emporium, PA 15834
By personally handing to and leaving with him
A true and attested copy of the original
Him the contents thereof.
Sworn to before me this
4th
Day of August A.D. 2000
olm oalc5YT6tar
my Commissime Eap m
In M=4' Ian 20A-1-
and made known to
SHERIFF'S RETURN - REGULAR
CASE NO: 2000-04861 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SMITH JAMES ET AL
VS
DIAMOND RICHARD ET AL
RICHARD SMITH Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
FOUR MILE RUN LODGE INC the
DEFENDANT
, at 0014:30 HOURS, on the 13th day of July , 2000
at 529 SPRING HOUSE ROAD
CAMP HILL, PA 17011 by handing to
GILBERT F. DIAMOND (PRESIDENT)
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof
Sheriff's Costs:
Docketing 18.00
Service 8.06
Affidavit .00
Surcharge 10.00
.00
36.06
Sworn and Subscribed to before
me this day of
A. D.
So Answers:
P
R. Thomas Kline
08/07/2000
JACK MCMAHON j'
r'
By: a /
V
Deputy Sheriff
Prothonotary
Cameron County, Pennsylvania
Office of
JAMES J. FRAGALE, SHERIFF
EMPORIUM, PA. 15834
Ad10VAmQgT7T OF MERIFF'S SERVICE
DAZE RECEIVED: July 13th, 2000 DAZE OF SERVICE:- August 3rd 2000
NO: 00-4861 TERM
James Smith and Crystal Smith
VS.
Richard Diamond, Walter Theodore
Troth, Four Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond
TYPE OF ACTION Complaint
Jack McMahon. Esq.
FAIN Tin" S ATTORNEY
XX SERVICE WAS MADE UPON Walter T. Troth FOR THE ABOVE CAPTIONED AMON.
RERRED NON EST IIVVENIUS (PERSON TO BE SOW CANNOT BE FOUND WIMI ZHE JURISDICTION)
VBAL NNE. DUE
JAMES J
SEIERIFF
CHECK NO. 29139
DATE OF REFUND August 4th.-2000
G
AFLxNT OF ADVANCE PAID $75.00
33ERIFF' S OOSTS $33.50
REFUND/BMAM DUE $41.50
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STATF OF PENNSYLVANIA
I, W I am ?e d dP.tO do swear, that on the
day of ?.?plit jB on I seed the within on
the part
therein named, by exhibiting and reading the same to
Sworn and subscribed before
Pro Clerk
CLERK OF QUARTER SESSIONS
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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)
JAMES SMITH and CRYSTAL SMITH
VS.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
(Plaintiff)
(Defendant)
No. 4861 Civil Term - 2000
State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer
to complaint, etc.):
Preliminary Objections of Defendant, Richard Diamond to Plaintiffs' Complaint
2. Identify counsel who will argue case:
a. for Plaintiff: Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
b. for Defendant: Charles E. Haddick, Jr., Esquire
Lori Adamcik Kariss, Esquire
20 South 36" Street
Camp Hill, PA 17011
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: August 30, 2000
Dated: .
Charles E. Haddi k, Jr. Esquire
U (Attorney for Defendant)
E
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JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
f
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS:
DIXON DIAMOND, .
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter our appearance for Defendants, Thomas Dixon Diamond, Richard
Diamond and Four Mile Run Diamond Lodge, only, in the above-captioned matter.
Respectfully submitted,
MARSHALL, SMITH & HADDICK, P.C.
Date: July 19, 2000
Charles E. Haddick, Jr., Esquire
Attorney I.D. No: 55666
Date: July 19, 2000
Lori Adamcik Kariss, Esquire
Attorney I.D. No: 66465
20 South 36th Street
Camp Hill, PA 17011
(717) 731-4800
Attorney for Defendants
CERTIFICATE OF SERVICE
AND NOW, this_ day of July, 2000, I, Charles E. Haddick, Jr., Esquire, hereby
certify that I did serve a true and correct copy of the foregoing Entry of Appearnce upon all
counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage
prepaid, at Harrisburg, Pennsylvania, addressed as follows:
By First-Class Mail:
Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiffs
Walter Theodore Troth
Box 295A
Emporium, PA 15834
Additional Defendant
Charles E. Haddick, Jr., Esquire
]J.7
,
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
1*
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS:
DIXON DIAMOND,
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants
PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS
Please withdraw the Preliminary Objections and Brief in Support of Preliminary
Objections filed in the above-captioned matter on September 15, 2000.
Dated:_ & ie
Respectfully submitted,
Charles E. Haddick, Jr., Esquire
Attorney I.D., No: 55666
Lori Adamcik Kariss, Esquire
Attorney I.D. No: 66465
20 South 36'h Street
Camp Hill, PA 17011
(717) 7314800
Attorney Defendants
CERTIFICATE OF SERVICE
AND NOW, this h day of October, 2000, I, Charles E. Haddick, Jr., Esquire,
hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of
record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at
Harrisburg, Pennsylvania, addressed as follows:
By First-Class Mail:
Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiffs
Waiter Theodore Troth
Box 295A
Emporium, PA 15834
Additional Defendant
0;V, a!:
Charles E. Had ck, Jr., Esquire
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James Smith and Crystal Smith,
Plaintiffs,
V.
Richard Diamond, Walter Troth,
Four Mile Run Diamond Lodge Inc.,
And Thomas Dixon Diamond
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No. 2000-4861 (Civil)
CIVIL ACTION-LAW
ANSWER TO NEW MATTER
11:2. Paragraph 112 of the Defendant's New Matter requires no response.
11:3. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
114. Admitted.
115. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
116. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
117. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
118. Admitted.
119. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
120. Plaintiff James Smith is without knowledge or information sufficient to forma belief
as to the allegation.
121. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
122. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
123. Plaintiff James Smith is without knowledge or information sufficient to form a belief
as to the allegation.
124. Admitted.
125. This allegation is specifically denied. It is denied that James Smith was present for
all conversations between Richard Diamond and Walter Troth regarding the cannon.
126. This allegation is specifically denied.. It is denied that James Smith was present for
all conversations between Richard Diamond and Greg Signor regarding the cannon.
127. This allegation is specifically denied. It is denied that James Smith helped carry the
cannon to the location where it was ignited.
128. The allegation is objected to as vague.
129. Paragraph 129 of Defendant's New Matter states a conclusion of law to which no
response is required.
130. Paragraph 130 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
131. Paragraph 131 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied. Furthermore, it is denied to the extent that it
does not contain factual allegations in that specifically denies that the Defendant performed any and
all duties to Plaintiff. Paragraph 131 is further denied in that Defendant did not perform any or all
duties to Plaintiffs, at all times material hereto.
132. Paragraph 132 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied. It is also denied that Defendants acted
reasonably, properly and prudently.
133. Paragraph 133 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
134. Paragraph 134 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
135. Paragraph 135 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied. It is further answered that Defendant's conduct
was a substantial factor in causing or contributing to any harm which Plaintiffs may have suffered.
136. Paragraph 136 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
137. Paragraph 137 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
138. Paragraph 138 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
139. Paragraph 139 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied.
WHEREFORE, Plaintiff demands that Defendant's New Matter is dismissed with prejudice.
ANSWER TO NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d)
Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond
V.
Walter Theodore Troth
140. Paragraph 140 of the Defendant's New Matter does not apply to Plaintiffs James
Smith or Crystal Smith and therefore does not require an answer.
141. Paragraph 141 of the Defendant's New Matter does not apply to Plaintiffs James
Smith or Crystal Smith and therefore does not require an answer.
ANSWER TO NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d)
Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond
V.
James Smith
142. Paragraph 142 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied. Furthermore, liability lies with the Defendants
and it should be dismissed.
143. Paragraph 143 of Defendant's New Matter states a conclusion of law to which no
response is required and is therefore deemed denied. Furthermore, liability lies with the Defendants
and it should be dismissed.
WHEREFORE, Plaintiff demands that Defendant's New Matter is dismissed with prejudice.
Respectfully submitted,
y6w li?-4
JACK McMAHON, Esquire
Attorney for Plaintiffs,
James Smith and Crystal Smith
VERIFICATION
I, James Smith, hereby verify that the facts set forth in the foregoing Answer to New Matter
are true and correct to the best of my knowledge, information and belief.
I understand that intentional false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unswom falsification to authorities.
Dated: r OQ S &? CO r
VERIFICATION
I, Crystal Smith, hereby verify that the facts set forth in the foregoing Answer to New Matter
are true and correct to the best of my knowledge, information and belief.
I understand that intentional false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unworn falsification to authorities.
CRYST SMITH
Dated: ?S 61
CERTIFICATE OF SERVICE
AND NOW, this 29th day of January, 2001, I hereby certify that a true and correct copy
of the foregoing document was served upon all counsel of records by First Class U.S. mail to the
following:
Lori Adamcik Kariss, Esquire
Charles Haddick Jr., Esquire
20 South 36th Street
Camp Hill, PA 17011
Walter Theodore Troth
Box 295A
Emporium, PA 15834
Jack McMahon, Esquire
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JAMES SMITH and CRYSTAL SMITH, :
Plaintiffs
V.
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: James and Crystal Smith Walter Theodore Troth
c/o Jack McMahon, Esquire 324 West 4`h Street
1500 Walnut Street Apt. 202
Suite 900 Emporium, PA 15834
Philadelphia, PA 19102
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN ANSWER WITH NEW MATTER AND
NEW MATTER PURSUANT TO Pa. R.C.P 2252(d) OF DEFENDANTS, RICHARD DIAMOND, FOUR MILE
RUN DIAMOND LODGE, INC., AND THOMAS DIXON DIAMOND WITHIN TWENTY (20) DAYS OF
SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
CIVIL ACTION - LAW
MARSHALL & HADDICK, P.C.
Date: December 8, 2000
Charles E. Idick, Jr., Esquire
Attorney I.D. No: 55666
Lori Adamcik Kariss, Esquire
Attorney I.D. No: 66465
20 South 36'n Street
Camp Hill, PA 17011
(717) 731-4800
Attorney Defendants Richard Diamond, Four Mile
Run Diamond Lodge, Inc., and Thomas Dixon
Diamond,
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No: 2000-4861 (Civil)
CIVIL ACTION - LAW
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS:
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER AND NEW MATTER PURSUANT TO
Pa. R.C.P 2252(d) OF DEFENDANTS, RICHARD DIAMOND, FOUR MILE RUN
DIAMOND LODGE, INC., AND THOMAS DIXON DIAMOND
AND NOW come Defendants, Richard Diamond, Four Mile Run Diamond Lodge,
Inc., and Thomas Dixon Diamond [hereinafter Answering Defendants], by and through
their attorneys, Marshall & Haddick, P.C. and answer Plaintiffs' Complaint as follows:
PARTIES
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
FACTS
7. Admitted.
8. Denied as stated. It is admitted that Diamond Lodge is owned by Four Mile
Run Diamond Lodge, Inc. The allegation that Thomas Dixon Diamond controlled or
operated Diamond Lodge at the time of the accident is denied.
9. Admitted.
10. Admitted.
11. Admitted.
12. Denied as stated. It is admitted that Richard Diamond and Thomas Dixon
Diamond knew that Plaintiffs were present on July 25, 1998.
13. Denied as stated. Walter Troth approached Richard Diamond regarding a
cannon on July 24, 1998. Walter Troth did not show Richard Diamond a cannon at that
time.
14. Denied as stated. Walter Troth indicated that the cannon could be packed
with gunpowder. There was no mention of "black" gunpowder or any other specific type
of gunpowder.
15. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
16. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
i
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
17. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
18. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
19. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
20. Denied. After reasonable investigation Answering Defendants are Denied.
After reasonable investigation, Answering Defendant is without knowledge or information
sufficient to form a belief as to the truth or falsity of the averments contained in this
paragraph, and therefore denies same and demands strict proof thereof.
21. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
22. Admitted, with the qualification that Plaintiff, James Smith, accompanied
Richard Diamond to pick up the cannon at the home of Walter Troth.
23. Admitted. By way of further response, Plaintiff, James Smith, was present
and heard Mr. Signor's statement. Additionally, after Mr. Signor's statement, Richard
Diamond specifically questioned Walter Troth regarding the safety of the cannon and was
assured that it was safe.
24. Admitted.
25. Denied as stated. It is admitted that James Smith was injured following the
explosion. The precise nature of the injuries is unknown to Answering Defendants,
however.
26. Denied as stated. It is admitted that Crystal Smith was injured following the
explosion. The precise nature of the injuries is unknown to Answering Defendants,
however.
COHNT I
Crystal Smith and James Smith
VS.
Walter Troth
27 - 31. The allegations contained in these paragraphs are directed against a
Defendant other than the Answering Defendants, and no reply is therefore required by the
Pennsylvania Rules of Civil Procedure. To the extent that it is determined that a reply is
required, Answering Defendants deny each allegation because after reasonable
investigation Answering Defendants are without knowledge or information sufficient to
form a belief as to the truth or falsity contained in these paragraphs. Further, to the extent
applicable, Answering Defendants generally deny the allegations of each of these
paragraphs pursuant to Pa. R.C.P. 1029(e).
WHEREFORE, Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond respectfully request that this Honorable Court enter judgment
in their favor and against Plaintiffs.
COUNT II
James Smith and Crystal Smith
VS.
Richard Diamond
32. Answering Defendants' responses to Paragraphs 1 - 31 of Plaintiffs'
Complaint are incorporated by reference as if fully set forth herein.
33. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
34. Denied. It is specifically and unequivocally denied that Defendant, Richard
Diamond, knew on July 25, 1998 that the cannon provided by Walter Troth was designed
to be fired with black powder or blasting powder.
35. Denied. It is specifically and unequivocally denied that Defendant, Richard
Diamond, knew on July 25, 1998 that the cannon provided by Walter Troth was loaded
with smokeless gunpowder rather than black powder or blasting powder.
36. Denied as stated. It is specifically and unequivocally denied that Greg
Signor used the term "smokeless gunpowder." By way of further response, see response to
paragraph 23 above, which is incorporated herein by reference.
37. Denied as stated. Richard Diamond admits only to knowing that gunpowder
can explode and that explosions can result in injuries. The allegation that gunpowder is
an abnormally dangerous product is denied as a conclusion of law.
38. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
39. Denied as stated. Walter Troth gave the cannon to Richard Diamond fully
loaded and ready to fire. Richard Diamond was not privy to the packaging of the
gunpowder obtained by Troth or any warnings that may have accompanied it.
40. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029.
41. Admitted. By way of further response, see response to paragraph 39 above,
which is incorporated herein by reference.
42. Denied. After reasonable investigation Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
43. Denied. After reasonable investigation Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
44. Denied as stated. Defendant denies this allegation to the extent that it is
unclear what is meant by "specialized knowledge." By way of further response, Richard
Diamond has, in the past, re-loaded shotgun shells.
45. Denied as stated. Defendant denies this allegation to the extent that it is
unclear what is meant by "specialized knowledge." By way of further response, Richard
Diamond asked Walter Troth specific questions regarding the use and safety of the cannon.
See also, response to paragraph 23 above, which is incorporated herein by reference.
46. Denied as stated. It is admitted that Richard Diamond carried the cannon to
the location where it was ignited. By way of further answer, however, Plaintiff James Smith
hand-carried the cannon to said location along with Richard Diamond.
47. Denied as stated. The exact distance between the cannon and the location
where Plaintiffs were located is unknown to Answering Defendants.
48. Denied as stated. Neither Richard Diamond nor Answering Defendants
knew of the location of Plaintiffs.
49. Denied. By way of further response, Richard Diamond asked Walter Troth
specific questions regarding the use and safety of the cannon and relied on the information
provided by Mr. Troth is response thereto. The spectators and guests at the party were
aware that the cannon and other fireworks were to be set-off that evening. By, way of
further response see responses to paragraphs 39, 44 and 45 above.
50. Denied. It is specifically and unequivocally denied that Defendant, Richard
Diamond know and comprehended the risk of explosion or detonation of the cannon
before he ignited the cannon.
51. Denied. It is specifically and unequivocally denied that Defendant, Richard
Diamond knew and comprehended the risk that an explosion or detonation of the cannon
could propel shrapnel or other debris.
52. Admitted.
53. Denied as stated. Richard Diamond did not "flee." He lit the wick and
stepped aside. By way of further answer, the exact distance between the cannon and the
spectators is unknown to Answering Defendants.
54. The allegations of Paragraph 54 (a-j) are denied as conclusions of law. To
the extent that responses to said allegations are deemed necessary, each of the allegations
is denied pursuant to Pa. R.C.P. 1029(e).
55. Denied pursuant to Pa. R.C.P. 1029(e).
56. Denied pursuant to Pa. R.C.P. 1029(e).
57. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e). By way of further response, it is specifically denied that Richard Diamond's
conduct was egregious and outrageous.
WHEREFORE, Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc.
and Thomas Dixon Diamond respectfully request that this Honorable Court enter judgment
in their favor and against Plaintiffs.
COUNT III
James Smith and Crystal Smith
VS.
Four Mile Run Diamond Lodge, Inc.
58. Answering Defendants' responses to Paragraphs 1 - 57 above are
incorporated by reference as if fully set forth herein.
59. Denied as stated. It is admitted that Defendant Four Mile Run Diamond
Lodge Inc. owned the real property. The remaining allegations are denied as conclusions
of law. To the extent that it is determined that a response is required, the allegations of this
paragraph are denied pursuant to Pa. R.C.P. 1029(e).
60. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
61. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
62. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
63. Denied as stated. It is admitted that Thomas Dixon Diamond was present at
some point on July 25, 1998. The remaining averments of this paragraph are denied as
conclusions of law. To the extent that it is determined that a response is required, the
allegations of this paragraph are denied pursuant to Pa. R.C.P. 1029(e).
64. Admitted.
65. Denied pursuant to Pa. R.C.P. 1029(e).
66. Denied as stated. Denied to the extent that "close proximity' is an
undefined term. It is further denied that Defendant knew the location of James Smith and
Crystal Smith.
67. Denied. See response to paragraph 66 above, which is incorporated herein
by reference.
68. Denied as stated. Defendant had no knowledge of the cannon other than the
fact that it was to be lit.
69. The allegations of Paragraph 69 (a-d) are denied as conclusions of law. To
the extent that it is determined that responses are required, each of the allegations is denied
pursuant to Pa. R.C.P. 1029(e).
70. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
71. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e). By way of further response, any negligence on the part of Thomas Dixon
Diamond is specifically denied.
72. Denied pursuant to Pa. R.C.P. 1029(e).
73. Denied pursuant to Pa. R.C.P. 1029(e).
74. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
75. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029. By way of further response, it is specifically denied that Defendant's conduct was
egregious or outrageous.
WHEREFORE, Answering Defendants respectfully request that this Honorable Court
enter judgment in their favor and against Plaintiffs.
COUNT IV
James Smith and Crystal Smith
VS.
Thomas Dixon Diamond
76. Answering Defendants' responses to Paragraphs 1 - 75 above are
incorporated by reference as if fully set forth herein.
y?
77. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
78. Denied. It is specifically and unequivocally denied that Defendant knew on
July 25, 1998 that the cannon provided by Walter Troth was designed to be fired with
black powder or blasting powder.
79. Denied. It is specifically and unequivocally denied that Defendant knew on
July 25, 1998 that the cannon provided by Walter Troth was loaded with smokeless
gunpowder rather than black powder or blasting powder.
80. Denied as stated. Thomas Dixon Diamond admits knowing that gunpowder
can explode and that explosions can result in injuries. The allegation that gunpowder is an
abnormally dangerous product is denied as a conclusion of law. To the extent a further
response is required, the remaining allegations are denied pursuant to Pa. R.C.P. 1029(e).
81. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
82. Denied. By way of further response, Defendant has no knowledge of what
warnings, if any, accompanied the gunpowder loaded into the cannon by Walter Troth.
83. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029(e).
84. Denied as stated. Defendant has no knowledge of what warnings, if any,
accompanied the gunpowder loaded into the cannon by Walter Troth.
85. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
86. Denied. After reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the
averments contained in this paragraph, and therefore deny same and demand strict proof
thereof.
87. Denied as stated. Defendant denies this allegation to the extent that it is
unclear what is meant by "specialized knowledge." By way of further response, Defendant
has, in the past, re-loaded shotgun shells.
88. Denied as stated. Defendant denies this allegation to the extent that it is
unclear what is meant by "specialized knowledge." Defendant knew that Richard
Diamond had re-loaded shotguns shells at some point in the past. The remaining
allegations are denied pursuant to Pa. R.C.P. 1029(e).
89. Denied. It is specifically and unequivocally denied that Defendant saw
Richard Diamond hand-carry the cannon to the location where it was ignited.
90. Denied pursuant to Pa. R.C.P. 1029(e).
91. Denied pursuant to Pa. R.C.P. 1029(e).
92. Denied pursuant to Pa. R.C.P. 1029(e).
93. Denied pursuant to Pa. R.C.P. 1029(e).
94. Denied as stated. Defendant did not see the exact location of cannon before
ignition.
95. Denied as stated. Defendant did not see the exact location of the cannon
before ignition.
96. Denied as stated. Defendant did not see the exact location of the cannon
before ignition and did not know the location of James Smith and Crystal Smith.
97. Denied pursuant to Pa. R.C.P. 1029(e).
98. The allegations of paragraph 98 (a-h) are denied as conclusions of law. To
the extent that it is determined that responses are required, each of the allegations is denied
pursuant to Pa. R.C.P. 1029(e).
99. Denied pursuant to Pa. R.C.P. 1029(e).
100. Denied pursuant to Pa. R.C.P. 1029(e).
101. Denied as a conclusion of law. To the extent that it is determined that a
response is required, the allegations of this paragraph are denied pursuant to Pa. R.C.P.
1029. By way of further response, it is specifically denied that Defendant's conduct was
egregious or outrageous.
WHEREFORE, Answering Defendants respectfully request that this Honorable Court
enter judgment in their favor and against Plaintiffs.
COUNT V
James Smith and Crystal Smith
Vs.
Ali Defendants
102. Answering Defendants incorporate by reference their responses to
paragraphs 1- 101 above as if fully set forth herein.
103. Denied as a conclusion of law to which no response is required. To the
extent that a response is required, the allegations in this paragraph are denied pursuant to
Pa. R.C.P. 1029(e).
WHEREFORE, Answering Defendants respectfully request that this Honorable Court
enter judgment in their favor and against Plaintiffs.
COI1NT VI
James Smith and Crystal Smith
Vs.
All Defendants
104. Answering Defendants incorporate by reference their responses to
paragraphs 1- 103 above as if fully set forth herein.
105. Denied as a conclusion of law to which no response is required. To the
extent that a response is required, the allegations in this paragraph are denied pursuant to
Pa. R.C.P. 1029(e).
106. Denied as a conclusion of law to which no response is required. To the
extent that a response is required, the allegations in this paragraph are denied pursuant to
Pa. R.C.P. 1029(e).
WHEREFORE, Answering Defendants respectfully request that this Honorable Court
enter judgment in their favor and against Plaintiffs.
COUNT VII
James Smith and Crystal Smith
VS.
All Defendants
107. Answering Defendants incorporate by reference their responses to
paragraphs 1- 106 above as if fully set forth herein.
108. Denied as a conclusion of law to which no response is required. To the
extent that a response is required, the allegations in this paragraph are denied pursuant to
Pa. R.C.P, 1029(e).
WHEREFORE, Answering Defendants respectfully request that this Honorable Court
enter judgment in their favor and against Plaintiffs.
COUNT VIII
James Smith and Crystal Smith
VS.
All Defendants
109. Answering Defendants incorporate by reference their responses to
paragraphs 1- 108 above as if fully set forth herein.
110. Denied as a conclusion of law to which no response is required. To the
extent that a response is required, the allegations in this paragraph are denied pursuant to
Pa. R.C.P. 1029(e).
111. Denied as a conclusion of law to which no response is required. To the
extent that a response is required, the allegations in this paragraph are denied pursuant to
Pa. R.C.P. 1029(e).
WHEREFORE, Answering Defendants respectfully request that this Honorable Court
enter judgment in their favor and against Plaintiffs.
NEW MATTER
112. Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and
Thomas Dixon Diamond hereby incorporate by reference Paragraphs 1 through 111 of
their Answer.
113. The cannon belonged to Waiter Troth.
114. The gunpowder loaded into the cannon was supplied by Walter Troth.
115. Defendants were not present when the gunpowder was purchased.
116. Defendants did not purchase the gunpowder.
117. Defendants did not pay for the gunpowder.
118. The cannon was loaded by Walter Troth and/or Greg Signor.
119. Defendants were not present when the cannon was loaded.
120. Defendants never saw the gunpowder that was loaded into the cannon.
121. Richard Diamond asked Walter Troth specific questions about the use and
safety aspects of the cannon.
122. Walter Troth assured Richard Diamond that the cannon was safe.
123. Defendants relied on Walter Troth's instructions on use and assurances of
safety at all times.
124. Plaintiff James Smith was present when Richard Diamond received the
cannon from Walter Troth.
125. Plaintiff James Smith was present for all conversations between Richard
Diamond and Walter Troth regarding the cannon.
126. Plaintiff James Smith was present for all conversations between Richard
Diamond and Greg Signor regarding the cannon.
127. Plaintiff James Smith helped to carry the cannon to the location where it was
ignited.
128. Plaintiff James Smith knew the location from where the cannon would be
ignited when he positioned himself to view the fireworks display in question.
129. Plaintiffs have failed to state a claim against Answering Defendants upon
which relief can be granted.
130. Plaintiffs' claims are barred by the applicable statute of limitations.
131. Answering Defendants complied with any and all duties owed to Plaintiffs, if
any existed, at times material hereto.
132. At all times material hereto, Answering Defendants acted reasonably,
properly, and prudently.
133. The alleged negligence of Answering Defendants, such negligence being
specifically denied, was not the proximate cause of the damages sustained by Plaintiffs, if
any.
134. At all times material hereto, Plaintiffs were guilty of comparative negligence,
and such negligence was comparatively higher than the alleged negligence of the
Answering Defendants, which is specifically denied; accordingly, Plaintiffs' claims are
barred or, in the alternative, limited in accordance with the Pennsylvania Comparative
Negligence Act.
135. No conduct on the part of Answering Defendants was a substantial factor in
causing or contributing to any harm which Plaintiffs may have suffered.
136. If any damages were sustained by the Plaintiffs in this litigation, such
damages were caused by parties other than Answering Defendants over whom Answering
Defendants had no control or right to control. Accordingly, Plaintiffs have failed to state a
claim against Answering Defendants upon which relief can be granted.
137. Plaintiffs' claims are barred, in whole or in part, by the doctrine of
assumption of the risk.
138. The Plaintiffs' damages, if any, were caused by the actions or inaction of
other persons or entities, over whom Answering Defendants have no control; and
therefore, the actions or inactions of such other persons or entities are intervening,
superseding causes of the Plaintiffs' damages as alleged. Accordingly, some or all of the
claims; against Answering Defendants should be dismissed.
139. Some or all of the Plaintiffs' claims against Answering Defendants are not
recoverable items of damage under Pennsylvania law.
WHEREFORE, Answering Defendants deny that Plaintiffs, James Smith and Crystal
Smith, are entitled to the relief claimed in the Complaint and therefore respectfully request
that this Honorable Court enter judgment in favor of Richard Diamond, Four Mile Run
Diamond Lodge, Inc., and Thomas Dixon Diamond, and against Plaintiffs.
NEW MATTER PURSUANT TO Pa. R.C.P. 2252(d)
Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond
VS.
Walter Theodore Troth
140. Answering Defendants, Richard Diamond, Four Mile Run Diamond Lodge,
Inc. and Thomas Dixon Diamond, without vouching for its accuracy, hereby incorporate
by reference Plaintiffs' Complaint against Walter Troth and also incorporate their own
Answer and New Matter above, as if fully set forth herein, and aver that if Plaintiffs are
entitled to any recovery from any of the Answering Defendants, which entitlement is
specifically denied, the liability is the sole liability of Walter Theodore Troth.
141. In the alternative, Walter Theodore Troth is jointly and/or severally liable to
the Plaintiffs and/or liable over to Answering Defendants for contribution and/or indemnity.
WHEREFORE, Answering Defendants, Richard Diamond, Four Mile Run Diamond
Lodges, Inc., and Thomas Dixon Diamond, respectfully request that Defendant Walter
Theodore Troth be found solely liable to Plaintiffs or in the alternative, be held jointly
and/or severally liable on the Plaintiffs' claims and/or be held liable to Answering
Defendants for contribution and/or indemnity.
NEW MATTER PURSUANT TO Pa. R.C.P. 2252(d)
Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond
VS.
James Smith
142. Answering Defendants, Richard Diamond, Four Mile Run Diamond Lodge,
Inc. and Thomas Dixon Diamond, hereby incorporate by reference their Answer and New
Matter above, as if fully set forth herein, and aver that if Plaintiff Crystal Smith is entitled to
any recovery from any of the Answering Defendants, which entitlement is specifically
denied, the liability therefor is the sole liability of James Smith.
143. In the alternative, James Smith is jointly and/or severally liable to the Plaintiff
Crystal Smith and/or liable over to Answering Defendants for contribution and/or
indemnity.
WHEREFORE, Answering Defendants, Richard Diamond, Four Mile Run Diamond
Lodge, Inc., and Thomas Dixon Diamond, respectfully request that Plaintiff and Additional
Defendant James Smith be found solely liable to Plaintiff Crystal Smith, or in the
alternative, be held jointly and/or severally liable on the Crystal Smith's claims and/or be
held liable to Answering Defendants for contribution and/or indemnity.
Respectfully submitted,
MARSHALL & HADDICK, P.C.
Date: December 8, 2000
Charles E. Haddick, )r.
Attorney I.D. No: 55666
Lori Adamcik Kariss
Attorney I.D. No. 66465
20 South 36th Street
Camp Hill, PA 17011
(717) 731-4800
Attorneys for Defendants, Richard
Diamond, Four Mile Run Diamond
Lodge, Inc., and Thomas Dixon
Diamond.
l f A ?
CERTIFICATE OF SERVICE
AND NOW, this day of December, 2000, I, Charles E. Haddick, Jr.,
Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon
all counsel of record by depositing, or causing to be deposited, same in the U.S.
mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
By First-Class Mail:
Jack McMahon, Esquire
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
Attorney for Plaintiffs
Walter Theodore Troth
Box 295A
Emporium, PA 15834
Additional Defendant
Charles E. addick, Jr., Esquire
VERIFICATION
I, Richard Diamond, hereby verify that the facts set forth in the foregoing
Answer with New Matter and New Matter pursuant to 2252(d) are true and correct to the best
of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904, relating to unsworn falsification to authorities.
Date:
Richard Diamond
VERIFICATION
I, Thomas Dixon Diamond, hereby verify that the facts set forth in the foregoing
Answer with New Matter and New Matter pursuant to Pa. R.C.P. 2252(d) are true and correct
to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904, relating to unsworn falsification to authorities.
FOUR MILE RUN DIAMOND
LODGE, INC.
Date: t(._Ly-v6 ao?4" 490'L
Thomas Dixo Diamond
f
VERIFICATION
I, Thomas Dixon Diamond, hereby verify that the facts set forth in the foregoing
Answer with New Matter and New Matter pursuant to Pa. R.C.P. 2252(4) are true and correct
to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904, relating to unsworn falsification to authorities.
Date: 1(°• Lv- a ? /
Thomas Dixon D amond
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James Smith and Crystal Smith,
Plaintiffs,
V.
Richard Diamond, Walter Troth,
Four Mile Run Diamond Lodge Inc.,
And Thomas Dixon Diamond
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No. 2000-4861 (Civil)
CIVIL ACTION-LAW
ORDER
AND NOW, this day of , 2000, it is hereby ORDERED and DECREED
that Defendant, Thomas Dixon Diamond's objections to paragraphs 98(e) and 98(f) of Plaintiffs'
complaint filed on September 15, 2000 are DENIED.
BY THE COURT:
James Smith and Crystal Smith,
Plaintiffs,
V.
Richard Diamond, Walter Troth,
Four Mile Run Diamond Lodge Inc.,
And Thomas Dixon Diamond
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No. 2000-4861 (Civil)
CIVIL ACTION-LAW
RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS OF DEFENDANT,
THOMAS DIXON DIAMOND, TO PLAINTIFFS' COMPLAINT
1. Admitted. This lawsuit arises out of an incident which occurred on or about July 25, 1998,
at Four Mile Run Lodge which was owned by the Diamond family. Due to Thomas Dixon
Diamond's negligence, a cannon exploded seriously injuring James Smith and Crystal Smith.
2. Admitted in part and denied in part. In addition to Thomas Dixon Diamond's negligence
with regard to failing to prevent the accident, Plaintiffs allege additional negligent acts of Defendant.
3. Denied as a conclusion of law.
4. Admitted in part and denied in part. The Defendant has only provided a selected portion of
Paragraph 98 and has excluded significant portions of the same paragraph.
5. Denied. It is specifically denied that the Plaintiffs' complaint includes boilerplate
allegations that should be dismissed through preliminary objections.
6. Denied. It is specifically denied that paragraph 98 of Plaintiffs' complaint fails to inform
Defendant, Thomas Dixon Diamond of his negligent conduct. Plaintiff alleges very specific
instances of negligent conduct in the same paragraph.
7. Denied. Paragraphs 98(e) and 98(f) of Plaintiffs' complaint sufficiently appraise the
Defendant of all of his conduct so that he is able to adequately prepare his defense to the allegations
made against him. Plaintiff has alleged the specific negligent conduct of Defendant, Thomas Dixon
Diamond, which caused the injuries to James Smith and Crystal Smith on or about July 25, 1998.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, respectfully request this court to
deny the preliminary objections of Thomas Dixon Diamond with regard to paragraphs 98(e) and
98(f).
Respectfully submitted,
Jack McMahon, Esquire
Attorney for Plaintiffs
James and Crystal Smith
Attorney ID#26798
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
(215) 985-4443
DATE: October 4, 2000
CERTIFICATE OF SERVICE
AND NOW, this 4th day of October, 2000, I hereby certify that a true and correct copy of
the foregoing document was served upon all counsel of records by Federal Express and regular
first class U.S. mail to the following
Lori Adamcik Kariss, Esquire
Charles Haddick Jr., Esquire
20 South 36th Street
Camp Hill, PA 17011
Walter Theodore Troth
Box 295A
Emporium, PA 15834
Y6 W?7?- 4
Jack McMahon, Esquire
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James Smith and Crystal Smith,
Plaintiffs,
V.
Richard Diamond, Walter Troth,
Four Mile Run Diamond Lodge Inc.,
And Thomas Dixon Diamond
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No. 2000-4861 (Civil)
CIVIL ACTION-LAW
ORDER
AND NOW, this day of , 2000, it is hereby ORDERED and
DECREED that Defendant, Richard Diamond's objections to paragraphs 569(c), (e), (f), and 0)
of Plaintiffs' complaint filed on August 7, 2000 are DENIED.
BY THE COURT:
James Smith and Crystal Smith, IN THE COURT OF COMMON PLEAS
Plaintiffs, OF CUMBERLAND COUNTY
V. No. 2000-4861 (Civil)
Richard Diamond, Walter Troth, CIVIL ACTION-LAW
Four Mile Run Diamond Lodge Inc.,
And Thomas Dixon Diamond
RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS OF DEFENDANT,
RICHARD DIAMOND, TO PLAINTIFFS' COMPLAINT
1. Admitted. This lawsuit arises out of an incident which occurred on or about July 25, 1998,
at Four Mile Run Lodge which was owned by the Diamond family. Due to Richard Diamond's
negligence, a cannon exploded seriously injuring James Smith and Crystal Smith.
2. Admitted in part and denied in part. In addition to Richard Diamond's negligence with
regard to igniting the cannon, Plaintiffs allege additional negligent acts of Defendant.
3. Denied as a conclusion of law.
4. Admitted in part and denied in part. The Defendant has only provided selected portion of
Paragraph 56 and has excluded significant portions of the same paragraph.
5. Denied. It is specifically denied that the Plaintiffs' complaint includes boilerplate
allegations that should be dismissed through preliminary objections.
6. Denied. It is specifically denied that paragraph 56 of Plaintiffs' complaint fails to inform
Defendant, Richard Diamond of his negligent conduct. Plaintiff alleges very specific instances of
negligent conduct in the same paragraph.
7. Denied. It is specifically denied that paragraphs 56(c), (e), (f), and (g) of Plaintiffs'
complaint sufficiently appraise the Defendant of all of his conduct so that he is able to adequately
prepare his defense to the allegations made against him. Plaintiff has alleged the specific negligent
conduct of Defendant, Richard Dixon, which caused the injuries to James Smith and Crystal Smith
on or about July 25, 1998.
8. Denied. It is specifically denied that paragraphs 56(c), (e), (f) and (g) of Plaintiffs' complaint
failed to conform with Pa.R.C.P. 1028 (a)(2). Plaintiff has alleged the specific negligent conduct
of Defendant, Richard Dixon, which caused the injuries to James Smith and Crystal Smith on or
about July 25, 1998.
9. Affirmed in part and denied in part. While it is affirmed that Pa.RC.P.1028(a)(3) permits
preliminary objections to be filed where a pleading is insufficiently specific, Plaintiffs deny that its
pleading is not specific. Plaintiffs' paragraph 56 is sufficiently specific in order for Defendant to
defend the allegations.
WHEREFORE, Plaintiffs, James Smith and Crystal Smith, respectfully request this court to
deny the preliminary objections of Richard Diamond with regard to paragraphs 56(c), (e), (0 and 0).
Respectfully submitted,
/40e/ /Ows:%
Jack McMahon, Esquire
Attorney for Plaintiffs
James and Crystal Smith
Attorney ID#26798
1500 Walnut Street
Suite 900
Philadelphia, PA 19102
(215) 985-4443
DATE: August 24, 2000
CERTIFICATE OF SERVICE
AND NOW, this 24th day of August, 2000, I hereby certify that a true and correct copy
of the foregoing document was served upon all counsel of records by Federal Express and regular
first class U.S. mail to the following
Lori Adamcik Kariss, Esquire
Charles Haddick Jr., Esquire
20 South 36th Street
Camp Hill, PA 17011
Walter Theodore Troth
Box 295A
Emporium, PA 15834
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Jack McMahon, Esquire
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THOMAS, THOMAS & HAFER LLP
James K. Thomas, II., Esquire
Identification Number: 15613
Hugh P. O'Neill, III, Esquire
Identification Number: 69986
305 N. Front Street
P.O. Box 999
HarrisburgTPA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
v
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION -LAW
DIXON DIAMOND,
Defendants
JURY TRIAL DEMANDED
PRAECIPE FOR ARGUMENT
TO THE PROTHONOTARY:
(1) Argument date requested is next term of Argument Court
(in accordance with Local Court Rule 211-A)
(2) The matter to be argued is Defendants' Motion for Summary Judgment.
(3) The party who has the burden is Defendant Thomas Dixon
Diamond
(4) The following named judge ( ) should ( ) should not hear the case for the following
(5) Cases on the argument and equity list must be submitted upon oral arguments and briefs unless the
Court agrees to consider the case on briefs only without oral argument. See Local Rule of Court
NCV 211 E.
The Court (is) X (is not)
(El Case will be argued by:
requested to consider case on briefs only.
Joel, H. Merow. Esquire Representing Plaintiffs
552 Court Street P.O.. Box 136. Reading, PA 19603 (Address)
(rrU- 325- /oar'
Charles J. Haddick. Jr., Esquire Representing Defendant
1200 Camp Hill Bwass, Suite 205. Richard Diamond, et al.
Camp Hill, PA 17011 (Address)
Hugh P. O'Neill. III, Esquire Representing Defendant Diamond
R.O. Box 999. Harrisburg, PA 17108-0999 (Address)
Date 7 v
292784.1
to for Defendant
I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do
hereby certify that I served a copy of the foregoing document by depositing the same in the United
States mail, first class, postage prepaid, as follows:
Joel H. Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Attorney for Plaintiffs
Charles J. Haddick, Jr, Esquire
DICKIE, MCCAMEY & CHILCOTE, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
Attorney for Defendants Richard Diamond,
Walter Theodore Troth, Four Mile Run Diamond Lodge, Inc.
THOMAS, THOMAS & HAFER, LLP
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Betty . Sheffer
Date: ?/-71vZ-
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JAMES SMITH and
CRYSTAL SMITH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
RICHARD DIAMOND, WALTER :
THEODORE TROTH, FOUR MILE :
RUN DIAMOND LODGE, INC. .
And THOMAS DIXON DIAMOND :
NO. 2000 - 4861 CIVIL TERM
CIVIL ACTION LAW
IN RE: DEFENDANT THOMAS DIXON DIAMOND'S
MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF JAMES SMITH
BEFORE BAYLEY, GUIDO, JJ.
ORDER OF COURT
AND NOW, this 22ND day of MAY, 2006, Plaintiff James Smith having failed to
respond to the Request for Admissions served by Defendant Thomas Dixon Diamond,
and having further failed to respond to the motion for summary judgment filed by
Defendant Thomas Dixon Diamond, said motion is GRANTED, and summary judgment
is entered in favor of Defendant Thomas Dixon Diamond and against Plaintiff James
Smith.
,4o'el H. Merow, Esquire
552 Court Street
P.O. Box 136
Reading, Pa. 19603-0136
vYames K. Thomas, II, Esquire
Hugh P. O'Neill, III, Esquire
305 N'prth Front Street, P.O. Box 999
Harrisburg, Pa. 17108
Edward E. Guido, J.
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JAMES SMITH and IN THE COURT OF COMMON PLEAS
CRYSTAL SMITH OF CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff, CIVIL ACTION - LAW
V.
NO.: 00-4861
RICHARD DIAMOND, ASSIGNED:
WALTER THEODORE TRITH,
FOUR MILE RUN DIAMOND LODGE
INC., and THOMAS DIXON DIAMOND:
Defendants.
ENTRY OF APPEARANCE
To the Prothonotary:
Kindly enter my appearance for Plaintiff in the above-
captioned matter. My address for service is as listed below.
RESPECTFULLY SUBMITTED,
LAW OFFICE MEROW & JACOBY, P.C.
By:
A torney for Plaintiff
6 North Sixth Street
.O. Box 136
Reading, PA 19603
I.D.# 53035
(610) 375-1025
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THOMAS, THOMAS & HAFER LLP
James K. Thomas, II., Esquire
Identification Number: 15613
Hugh P. O'Neill, III, Esquire
Identification Number: 69986
Corey J. Adamson, Esquire
Identification Number: 204508
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7100
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH, IN THE COURT OF COMMON PLEAS
Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA
V
NO. 2000-4861
RICHARD DIAMOND, WALTER THEODORE :
TROTH, FOUR MILE RUN DIAMOND
LODGE, INC., and THOMAS DIXON CIVIL ACTION -LAW
DIAMOND,
Defendants
JURY TRIAL DEMANDED
DEFENDANT THOMAS DIXON DIAMOND'S MOTION TO COMPEL DEPOSITION OF
PLAINTIFF CRYSTAL SMITH
AND NOW comes Defendant Thomas Dixon Diamond, by and through his attorneys,
Thomas, Thomas and Hafer, LLP, and files the instant Motion to Compel, and avers as follows:
1. Plaintiffs James Smith and Crystal Smith, husband and wife, initiated this
premises liability action against Defendant Thomas Dixon Diamond ("Moving Defendant") and
others associated with an incident which occurred on or about July 25, 1998, at the Four Mile
Run Diamond Lodge located in Shippen Township, Cameron County, Pennsylvania
2. Plaintiffs' Complaint describes an event that occurred on July 25, 1998, involving
a homemade canon owned by Defendant Walter Troth.
3. The cannon was ignited and exploded causing debris and shrapnel to be propelled
in various direction. As a result of the explosion, people in attendance at the "fireworks" display
sustained personal injuries including Plaintiffs James Smith and Crystal Smith.
A
4. The Honorable Edward E. Guido granted Moving Defendant's Motion for Partial
Summary Judgment via Order dated May 22, 2006, dismissing Plaintiff James Smith's claims
against Moving Defendant.
5. The deposition of Plaintiff Crystal Smith ("Plaintiff') was noticed and scheduled
for April 6, 2007. A copy of the Notice of Deposition is attached hereto as Exhibit A.
6. Via correspondence of March 14, 2007, Plaintiff's counsel was served with a
copy of the Notice. A copy,of the March 14, 2007. correspondence is attached hereto as Exhibit
B.
7. On Thursday, April 5, Plaintiff's counsel telephoned Moving Defendant's
counsel, stating that he would be unable to attend the deposition due to medical reasons, and
requested that the deposition be rescheduled.
8. Moving Defendant's counsel honored this request. Plaintiff s deposition was
noticed for April 27, 2007, after Plaintiff's counsel provided a list of available dates. A copy of
the second Notice of Deposition is attached hereto as Exhibit C.
9. Plaintiff's counsel was served with a copy of the second Notice via
correspondence dated April 9, 2007. A copy of the April 9, 2007 correspondence is attached
hereto as Exhibit D.
10. On April 27, 2007, Plaintiff failed to appear for her scheduled deposition.
Moving Defendant's counsel waited for twenty minutes for Plaintiff and her counsel to appear.
When no one appeared, Moving Defendant's counsel went on the record, putting on the record
the above-detailed events, and Plaintiff's failure to appear. A copy of the transcript is attached
hereto as Exhibit E.
1 a
11. Moving Defendant is entitled to take the deposition testimony of Plaintiff. See
Pa.R.C.P. 4007.1.
12. Moving Defendant is prejudiced in preparing a defense to this matter by
Plaintiff's willful failure to conform to the Pennsylvania Rules of Civil Procedure.
13. Moving Defendant cannot begin to prepare a defense to this matter without being
able to ascertain the knowledge held by Plaintiff concerning the subject incident, nor begin to
evaluate Plaintiff's alleged damages, without being afforded the opportunity to question Plaintiff
at a deposition regarding the same.
14. Pursuant to Cumberland County Local Rule 208.2(d), concurrence in the instant
Motion was sought from Plaintiff's counsel. Concurrence was denied.
WHEREFORE, it is respectfully requested that this Court issue an order directing
Plaintiff to attend a deposition within thirty (30) days of the date of this Honorable Court's
Order, or suffer penalty of sanctions including dismissal of her claims, with prejudice.
Respectfully submitted,
, THOMAS &
Hugh P 'Ne' 1,`III, Esquire
A
ttgrfi ey U). o. 69986
CyNorth, on, Esquire
Ao. 204508
3Street
P. H 17108-0999
Attorneys for Defendant
Thomas Dixon Diamond
CERTIFICATE OF CONCURRENCE SOUGHT
I, Corey J. Adamson, Esquire, of the law firm of Thomas, Thomas and Hafer, LLP,
hereby certify that concurrence was sought from Plaintiff's counsel in the foregoing Motion, and
said concurrence was denied.
CERTIFICATE OF SERVICE
I, Sherry Hauenstein, an employee of the law firm of THOMAS, THOMAS, &
HAFER, LLP, do certify that I served the foregoing document on the following person(s), by
depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania
addressed as follows:
Joel Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
THOMAS, THOMAS & HAFER, LLP
Date: :s?--I 6 -6 7 OA 0 11111 4JWVA??-o
501280.1 Sbt#y Hauenstein
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M'O'd %oc
S3183S 00006 "
THOMAS, THOMAS d HAFER LLP
James K. Thomas, I1., Esquire
Identification Number: 15613
Hugh P. O'Neill, 111, Esquire
Identification Number: 69986
305 N. Front Street
P.O. Boa 999
Harrisburg, PA 17108
(717) 237-7100
JAMES SMITH and CRYSTAL SMITH,
Plaintiffs
v
Attomeys for Defendant
Thomas Dixon Diamond
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-4861
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and THOMAS CIVIL ACTION - LAW
DIXON DIAMOND,
Defendants
: JURY TRIAL DEMANDED
NOTICE OF DEPOSITION
TO: Crystal Smith
c/o Joel Merow, Esquire
552 Court Street
P.O. Boy: 136
Reading, PA 19603-0136
PLEASE TAKE NOTICE that pursuant to Pennsylvania Rules of Civil Procedure, the
undersigned will take the deposition of Crystal Smith in the above-captioned action, upon oral
examination, for the purpose of discovery or for use at trial, or for both purposes, before a person
so authorized to render an oath, at Thomas, Thomas & Hafer LLP, 305 N. Front Street, Sixth
Floor, Harrisburg, Pennsylvania at 10:00 a.m., on Friday, April 6, 2007, on all matters not
privileged which are relevant and material to the issues and subject matter involved in the
pending action, and that the above-named is requested to appear at the aforesaid time at the
above address and submit to examination under oath. The Court Reporter will be from Geiger &
Loria Reporting Service and confirmed with our office for the above date and time.
THOMAS, THOMAS & HAFER, LLP
By:
Augh:P!O'Ntill, III; Esquire
Attorney I.D. No. 69986
305 North Front Street
P.O. Boa 999
Harrisburg, PA 17108-0999
Attorneys for Defendant
Thomas Dixon Diamond
Dated: ? ?? /
CERTIFICATE OF SER?71CE
1, Joan L. Wolfe, an employee of the law firm of THOMAS, THOMAS, & HAFER,
LLP, do certify that 1 served the foregoing document on the following person(s), by depositing
the same in the United States Mail, postage prepaid, at HarTisburg, Pennsylvania addressed as
follows:
Joel Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Geiger & Loria Reporting Service
2408 Park Drive
Suite B
Harrisburg, PA 17110
THOMAS, THOMAS & HAFER, LLP
Date: March 14, 2007
Joan L. Wolfe
Exhibit t?
m 0 d %os M3.1343H
s3ia3s 00006
THOMAS,. THOMAS & HAFERLLP
ATTORNEYS AT LAW
www.tthlaw.com
Mailing Address: P.O. Box 999, Harrisburg, PA 17108
Street Address: 305 North Front Street, Harrisburg, PA 17101
Phone: (717) 237-7100 Fax: (717) 237-7105
Hugh P. O'Neill
(717) 255-7629
honeill@tthlaw.com
March 14, 2007
Joel H. Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Re: Smith v. Diamond, et al.
TT&H File No. 290-40479
Dear Joel:
Enclosed please find a Notice of Deposition for your client Crystal Smith for Friday, April 6,
2007 beginning at 10:00 a.m. in my office. My secretary has secured the court reporter.
Very truly yours,
Thomas, Thomas & Hafer, LLP
Hugh P. O'Neill, III
HPO/j lw:3 89992.4
Enc.
bcc: John Mallinson, Hartford claim no.: 998 L 55116
Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 + Fax: (610) 868-1702
Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 + Phone: (412) 697-7403 + Fax: (412) 697-7407
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JURY TRIAL DEMANDED
NOTICE OF DEPOSITION
THOMAS, TBOMAS & HATER LLP
James K. Thomas,ll., Esquire
identification Number: 15613
Hugh P. O'Neill, Ill, Esquire
identification Number: 69986
305 N. Front Street
P.O. Boa 999
Harrisburg, PA 17108 Attorneys for Defendant
(717) 237-7100 Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH, IN THE COURT OF COMMON PLEAS
Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA
v
NO. 2000-4861
RICHARD DIAMOND, WALTER THEODORE :
TROTH, FOUR MILE RUN DIAMOND :
LODGE, INC., and THOMAS DIXON CIVIL ACTION - LAW
DIAMOND, :
Defendants
TO: Crystal Smith
c/o Joel Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
PLEASE TAKE NOTICE that pursuant to Pennsylvania Rules of Civil Procedure, the
undersi, ied will take the deposition of Crystal Smith in the above-captioned action, upon oral
examination, for the purpose of discovery or for use at trial, or for both purposes, before a person so
authorized to render an oath, at Thomas, Thomas & Hafer LLP, 305 N. Front Street, Sixth Floor,
Harrisburg, Pennsylvania at 11:00 a.m., on Friday, April 27, 2007, on all matters not privileged which
are relevant and material to the issues and subject matter involved in the pending action, and that the
above-named is requested to appear at the aforesaid time at the above address and submit to examination
under oath. The Court Reporter will be from Geiger & Loria Reporting Service and confirmed with our
office for the above date and time.
TH 0
& HAFER, LLP
Dated:
figh O'Neill, III, Esquire
Atto .n y I.D. No. 69986
305 North Front Street
P.O. Box 999
Harrisburg; PA 17108-0999
Attorneys for Defendant, Thomas Dixon Diamond
CERTIFICATE OF SERVICE
I, Joan L. Wolfe, an employee of the law firm of THOMAS, THOMAS, & HAFER,
LLP, do certify that I served the foregoing document on the following person(s), by depositing
the same in the United States Mail, postage prepaid, at Harrisburg, Peiu-isylvania addressed as
follows:
Joel Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Geiger & Loria Reporting Service
2408 Park Drive
Suite B
Harrisburg, PA 17110
Date: April 9, 2007
THOMAS, THOMAS & HAFER, LLP
Joakt' . Wolfe
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M O 'd /.Os ®?31?A33a,
s3ra3s 00006 ?'? ???'?
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THOMAS, THOMAS & HAFER LLP
ATTORNEYS AT LAW f&1 4, "?
ww-vv. tthlaw.com
Mailing Address: P.O. Box 999, Harrisburg, PA 17108
Street Address: 305 North Front Street, Harrisburg, PA 17101
Phone: (717) 237-7100 Fax: (717) 237-7105
Hugh P. O'Neill
(717) 255-7629
honeill@tihlam,.com
April 9, 2007
Joel H. Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Re: Smith v. Diamond, et al.
TT&H File No. 290-40479
Dear Joel:
Enclosed please find a Notice of Deposition for your client Crystal Smith which is rescheduled
for Friday, April 27, 2007 beginning at 11:00 a.m. in my office. My secretary has secured the court
reporter.
Very truly yours,
Thomas, Thomas & Hafer, LLP
Hugh P. O'Neill, III
HPO/jlw:389992.5
Enc.
bcc: John Mallinson, Hartford claim no.: 998 L 55116
Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702
Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 + Fax: (412) 697-7407
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COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JAMES SMITH AND CRYSTAL
SMITH,
PLAINTIFFS
NO. 2000-4861
VS
RICHARD DIAMOND, WALTER
THEODORE TROTH, FOUR
MILE RUN DIAMOND LODGE,
INC., AND THOMAS DIXON
DIAMOND,
DEFENDANTS
SCHEDULED
DEPOSITION OF: CRYSTAL SMITH
TAKEN BY: DEFENDANT THOMAS DIXON
DIAMOND
BEFORE: HELENA L. BOWES, RPR, CLR
NOTARY PUBLIC
DATE: APRIL 27, 2007, 11:20 A.M.
PLACE: THOMAS, THOMAS & HAFER
305 NORTH FRONT STREET
HARRISBURG, PENNSYLVANIA
APPEARANCES:
THOMAS, THOMAS & HAFER, LLP
BY: COREY J. ADAMSON, ESQUIRE
FOR - DEFENDANT THOMAS DIXON DIAMOND
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
I'-
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TABLE OF CONTENTS
E X H I B I T S
C. SMITH EXHIBIT NO.
1 - March 14, 2007 letter to Mr.
Me row from Mr. O'Neill
2 - Notice of Deposition
3 - April 9, 2 007 letter to Mr.
Me row from Mr. O'Neill
4 - Notice of Deposition
PRODUCED
AND MARKED
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(Documents marked as C. Smith Exhibit
Numbers 1 to 4.)
MR. ADAMSON: We are on the record. It is
approximately 11:20 a.m. This is the time and place
for the deposition of plaintiff, Crystal Smith, in the
action of Smith v. Diamond, et al.
Plaintiff was noticed for deposition to
begin at 11 a.m. It is 11:20, and plaintiff and
plaintiff's counsel have not shown. This is the second
time that plaintiff has not shown for a schedule
deposition.
Exhibit C. Smith 1 is a copy of a
correspondence sent to plaintiff's counsel scheduling
and enclosing the Notice of Deposition for the
deposition to occur on Friday, April 6th, 2007,
beginning at 10 a.m.
Exhibit C. Smith 2 is the Notice of
Deposition for Crystal Smith for Friday, April 6th,
2007.
On Thursday, April 5th, 2007, plaintiff's
counsel communicated that he would not be able to
attend the deposition due to medical concerns;
plaintiff's counsel was accommodated in this regard and
the deposition was rescheduled.
Exhibit C Smith 3 is a copy of the
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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correspondence dated April 9th, 2007, which encloses a
new Notice of Deposition for Crystal Smith scheduling
the deposition for Friday, April 27th, 2007, beginning
at 11 a.m.; that is this date.
And Exhibit C. Smith 4 is the Notice of
Deposition scheduling the deposition for today, Friday,
April 27th, 2007, at 11 a.m.
And as stated, neither plaintiff nor
plaintiff's counsel are here. This is the second time
that plaintiff has not shown for her deposition,
despite having received notice of the same.
And that will conclude the no show
deposition of Crystal Smith at this time.
(The deposition was concluded at 11:24
a.m.)
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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I hereby certify that the proceedings and
evidence are contained fully and accurately in the
notes taken by me on the within proceedings and that
this copy is a correct transcript of same.
Helena L. Bowes, R
Notary Public
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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JAMES SMITH and
CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND,
WALTER THEODORE
TROTH, FOUR MILE
RUN DIAMOND
LODGE, INC., and
THOMAS DIXON
DIAMOND,
Defendants
ORDER OF COURT
AND NOW, this 23rd day of May, 2007, upon consideration of Defendant Thomas
Diamond Dixon's Motion To Compel Deposition of Plaintiff Crystal Smith, a Rule is
hereby issued upon Plaintiff Crystal Smith, to show cause why the relief requested should
not be granted.
RULE RETURNABLE within 7 days of service.
BY THE COURT,
el Merow, Esq.
552 Court Street
P.O. Box 136
Reading, PA 19603-0136 J
Attorney for Plaintiff
Crystal Smith
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-4861 CIVIL TERM
J//Wesley Orer, Jr., J.
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'?.i. r?`??, ?-?
! ? .7 it j ?',E t?'
ugh P. O'Neill, III, Esq.
orey J. Adamson, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorneys for Defendant
Thomas Dixon Diamond
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JAMES SMITH and :IN THE COURT OF COMMON PLEAS
CRYSTAL SMITH, :CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :CIVIL ACTION - LAW
VS.
RICHARD DIAMOND, WALTER :NO. 2000-4861
THEODORE TROTH, FOUR MILE RUN
DIAMOND LODGE, INC., and
THOMAS DIXON DIAMOND,
Defendants :JURY TRIAL DEMANDED
PLAINTIFFS ANSWER TO DEFENDANT THOMAS DIXON's MOTION TO COMPEL
DEPOSITION OF PLAINTIFF CRYSTAL SMITH
AND NOW come Plaintiffs, by and through their attorneys,
Joel H. Merow, Esquire, Merow & Jacoby, P.C., Answering the Motion
to Compel Deposition of Plaintiff Crystal Smith as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. Partially admitted and partially denied. It is admitted
that plaintiff failed to appear for her deposition on April 27,
2007. Plaintiff counsel did inform defendant counsel prior to the
deposition that Plaintiff did not wish to appear and would not be
appearing.
11. Admitted.
12. Denied. Defendant is not prejudiced in preparing a
defense to this matter. Plaintiff has previously been deposed in
a companion case to the instant action, said deposition being
I ,w
attended to by an attorney from the office of defense counsel
herein. Defendant has therefore had an opportunity to observe the
demeanor of Plaintiff in a litigation setting. Further, Plaintiff
has offered for her deposition to be taken either by telephone or
via video-conference, due to the significant distant Plaintiff
lives from Pennsylvania, including Reading (office of Plaintiff
counsel) and Harrisburg, (office of Defendant counsel). Defendant,
despite having previously deposed the Plaintiff and observed her
demeanor, has rejected this compromise.
13. Denied. To the contrary, Defendant is capable to begin
preparation of a defense to this matter and evaluate damages due to
Plaintiff without compulsion of Plaintiff's live deposition.
14. Admitted.
Respectfully Submitted,
MEROW & JACOBY, P.C.
I it,
1 H. Merow, Esquire
torney for Plaintiff
North Sixth Street
P.O. Box 136
Reading, PA 19603-0136
(610) 375-1025
ID## : 53035
C--3
CERTIFICATE OF SERVICE
I, Brena R. Powlick, an employee of the law firm Merow & Jacoby, P.C., do certify that I
served the foregoing document on the following person(s), by depositing the same in the United
States Mail, postage prepaid, at Reading, Pennsylvania addressed as follows:
Corey I Adamson, Esquire
Thomas, Thomas & Hafer, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
MEROW & JACOBY, P.C.
Date: I % I TT
Brena R. Powlick
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JAMES SMITH and
CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND,
WALTER THEODORE
TROTH, FOUR MILE
RUN DIAMOND
LODGE, INC., and
THOMAS DIXON
DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-4861 CIVIL TERM
IN RE: MOTION OF DEFENDANT THOMAS DIXON
DIAMOND TO COMPEL DEPOSITION OF PLAINTIFF
CRYSTAL SMITH
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 26th day of June, 2007, upon consideration of Defendant Thomas
Dixon Diamond's Motion To Compel Deposition of Plaintiff Crystal Smith, and of
Plaintiff[`]s Answer to Defendant Thomas Dixon's [sic] Motion To Compel Deposition
of Plaintiff Crystal Smith, it is directed that Plaintiff Crystal Smith appear at the office
Thomas, Thomas & Hafer, LLP, Sixth Floor, 305 N. Front Street, Harrisburg,
Pennsylvania, within four week of the date of this order, or suffer, upon motion, such
sanctions as the court deems appropriate. The moving party shall provide at least 10
days' notice of the date and time of the deposition to all other parties.
Z i =£ Wd LZ NAr LOOZ
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Joel Merow, Esq.
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Attorney for Plaintiff
Crystal Smith
Hugh P. O'Neill, III, Esq.
Corey J. Adamson, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorneys for Defendant
Thomas Dixon Diamond
BY THE COURT,
l
Charles J. Haddick, Jr., Esq.
1200 Camp Hill Bypass
Suite 205
Camp Hill, PA 17011
Attorney for Defendants
Richard Diamond, Walter
Theodore Troth, and Four Mile
Run Diamond Lodge, Inc.
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THOMAS, THOMAS & HAFER LLP
Corey J. Adamson, Esquire
Identification Number: 204508
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 255-7639
Attorneys for Defendant
Thomas Dixon Diamond
JAMES SMITH and CRYSTAL SMITH, IN THE COURT OF COMMON PLEAS
Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA
V :
NO. 2000-4861
RICHARD DIAMOND, WALTER THEODORE :
TROTH, FOUR MILE RUN DIAMOND
LODGE, INC., and THOMAS DIXON CIVIL ACTION - LAW
DIAMOND,
Defendants
JURY TRIAL DEMANDED
DEFENDANT THOMAS DIXON DIAMOND'S MOTION FOR STATUS/SETTLEMENT
CONFERENCE
AND NOW comes Defendant Thomas Dixon Diamond, by and through his attorneys,
Thomas, Thomas and Hafer, LLP, and files the instant Motion for Status/Settlement Conference,
and avers as follows:
Plaintiffs James Smith and Crystal Smith, husband and wife, initiated this
premises liability action against Defendant Thomas Dixon Diamond ("Moving Defendant") and
others associated with an incident which occurred on or about July 25, 1998, at the Four Mile
Run Diamond Lodge located in Shippen Township, Cameron County, Pennsylvania
2. Plaintiffs' Complaint describes an event that occurred on July 25, 1998, involving
a homemade canon owned by Defendant Walter Troth.
The cannon was ignited and exploded causing debris and shrapnel to be propelled
in various direction. As a result of the explosion, people in attendance at the "fireworks" display
sustained personal injuries including Plaintiffs James Smith and Crystal Smith.
4. The Honorable Edward E. Guido granted Moving Defendant's Motion for Partial
Summary Judgment via Order dated May 22, 2006, dismissing Plaintiff James Smith's claims
against Moving Defendant.
The deposition of Plaintiff Crystal Smith ("Plaintiff') has been completed, and
Moving Defendant believes this matter is ripe for settlement discussions.
6. However, despite repeated requests, and the extension of a settlement offer,
Moving Defendant has received no response thereto, and no counter-offers.
Pursuant to Cumberland County Local Rule 208.2(d), concurrence in the instant
Motion was sought from Plaintiffs' counsel. Plaintiffs' counsel advised he is agreeable to a
settlement conference, but is uncertain if one before the Court is an appropriate forum.
8. Judge Oler has previous involvement in this matter, having granted Moving
Defendant's Motion to Compel Plaintiff s Deposition on or about June 29, 2007.
WHEREFORE, it is respectfully requested that this Court schedule a status/settlement
conference for the purpose of discussing settlement between the parties, and if this matter should
not settle at said conference, for the additional purpose of establishing deadlines and scheduling
this matter for trial.
Respectfully submitted,
THOMAS, THOMAS & HAFEF, LLP
damson, Esquire
Corte J.,`
A„tfornq'I.D. No. 204508
SOS ,North Front Street
R. Box 999
Harrisburg, PA 17108-0999
Attorneys for Defendant
Thomas Dixon Diamond
CERTIFICATE OF CONCURRENCE SOUGHT
I, Corey J. Adamson, Esquire, of the law firm of Thomas, Thomas and Hafer, LLP,
hereby certify that concurrence was sought from Plaintiffs' counsel in the foregoing Motion.
Plaintiffs' counsel advised he is agreeable to a settlement conference, but is uncertain if one
before the Court is an appropriate forum.
CoT2y J Adamson, Esquire
c?
CERTIFICATE OF SERVICE
I, Nora A. Starnes, an employee of the law firm of THOMAS, THOMAS, & HAFER,
LLP, do certify that I served the foregoing document on the following person(s), by depositing
the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as
follows:
Joel Merow, Esquire
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Date: yf? }% ?? apt ,.
Nora A. Starnes
575265.2
s'- ' } i. u1
- ._.? fit
JAMES SMITH and
CRYSTAL SMITH,
Plaintiffs
V.
RICHARD DIAMOND,
WALTER THEODORE
TROTH, FOUR MILE
RUN DIAMOND
LODGE, INC., and
THOMAS DIXON
DIAMOND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-4861 CIVIL TERM
ORDER OF COURT
AND NOW, this 10`h day of June, 2008, upon consideration of the motion of
Defendant Thomas Dixon for a status/settlement conference, and it appearing that the
court is being requested to attempt to mediate a settlement in the matter, the motion is
denied and counsel are referred to the various mediation services available.
UPON MOTION of any counsel, the court will schedule a status conference with a
view toward establishing discovery and other deadlines, in order to move the case
forward.
,/Joel Merow, Esq.
552 Court Street
P.O. Box 136
Reading, PA 19603-0136
Attorney for Plaintiff
Crystal Smith
BY THE COURT
YJ. Wesley O Ter, Jr., J.
VINVi1I ,33NN"3 -01
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I&IONU-HiObd 3HI :10
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?Corey J. Adamson, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendant
Thomas Dixon Diamond
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JAMES SMITH and CRYSTAL SMITH, IN THE COURT OF COMMON PLEAS
Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA
v
NO. 2000-4861
RICHARD DIAMOND, WALTER THEODORE :
TROTH, FOUR MILE RUN DIAMOND
LODGE, INC., and THOMAS DIXON CIVIL ACTION -LAW
DIAMOND,
Defendants
: JURY TRIAL DEMANDED
PRAECIPE TO DISCONTINUE, SETTLE. AND END
TO THE PROTHONOTARY:
Please mark the above case settled, discontinued and ended with prejudice.
Respectfully submitted,
MEROW & JACOBY, P.C.
Date: 9161
J 1 H. Merow, Esquire
6 orth Sixth Street
P.O.Box 136
Reading, PA 19603-0136
610-375-1025
610-375-0951 (facsimile)
jhmerow@merowandjacobylaw.com
Attorneys for Plaintiffs
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