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Definition of Terms
THESE DEFINITIONS FORM AN INTEGRAL PART Of THE fOLLOWING
INTERROGATORIES:
A. "And" and "Or" means "and/or," and the singular form shall be
deemed to include the plural and vice versa.
B. "Describe" or "Description" when used with reference to any
conversation, communication, statement, meeting, or discussion or any
act, transaction, occurrence, happening, instance, or event, means to
provide the following information:
1. The subject matter and substance-of that which took place;
2. The time, date and place thereof;
3. The identification of each person who participated
therein, or who was a witness thereto; and
4. The identification of each communication or document which
refers thereto or which was prepared or made during the course thereof
or as a consequence thereof.
C. "Documents" shall mean the originals, and all non-identical
copies (whether different from the originals because of notes made from
such copies or otherwise), of all written, printed, recorded or graphic
matter of every kind and description, including all attachments or
addenda annexed thereto, whether inscribed by hand or mechanical,
electronic, microfilm, photographic or other means, as well as phonic or
visual reproductions, in the possession, custody or control of Plaintiff,
including by way of amplification and not limitation: contracts,
invoices, correspondence, notes, drafts, reports, plans, recordings,
diaries, desk calendars, interoffice and interoffice memoranda, memoranda
2
.
for file, memoranda of telephone conversations, and minutes of meetings
or conferences.
D. "He" and any other masculine pronoun includes any individual,
regardless of sex, to whom the interrogatory would otherwise apply.
E. "Identify," "Identification" or "Identity" means to provide the
following information:
1. When used with reference to a natural person, state his
full name and present or last known business and residence address, his
last known or present business affiliation, and his position in business
affiliation at the time of the transaction, occurrence, event, happening,
or matter in question.
2. When used with reference to any entity other than a
natural person (e.g., corporation, partnership, joint venture or
association), state:
(a) Its full names;
(b) The address of its principal place of business; and
(c) Its organization form and its purposes, primary
business or activities.
3. When used with reference to an oral communication:
(a) State the place at which and the date on which such
oral communication occurred;
(b) Identify each person making such oral communication,
the person to whom it was made and each other person who was present (in
person or by telephone) when it was made;
(cl State the subject and substance of such oral
communication; and
3
.
(d) Specify, in accordance with paragraph (b) below,
each document which relates or refers to each such communication or which
was prepared and made during the course hereof or as a consequence
thereof;
F. "Person" means any natural person or any entity other than a
natural person, including, but not limited to, sole proprietorships,
partnerships, corporations, associations, joint ventures, co-ventures and
any other legally recognized entity of any description whatever, as well
as all divisions, departments, affiliates, subsidiaries, or ot.her sub-
units of the foregoing entities.
G. "Specify" when used with reference to a "document," calls for:
1. The nature of the document (e.g., letter, contract, chart,
memoranda);
2. Its date;
3. Each author (and, in different, each signer) thereof, and
each person to whom the document was distributed;
4. Its subject matter and substance;
5. Its present or last known location or custodian;
6. The disposition of such document if it was but is no
longer in your possession or subject to your control; and
7. Any other information necessary to enable the custodian to
locate the particular document and necessary for use in a subpoena duces
tecum or in a demand for the production of the documents under Rule 4009
of the Pennsylvania Rules of Civil Procedure.
I. "Date" means the exact day, month and year if ascertainable, or,
if not, the best approximation (including the relation of other events) .
4
8. Give the names and addresses of all hospitals where you have
t
r
been either as an in-patient or an out-patient during the ten (10) years
prior to the accident complained of and, as to each hospital, give:
(a) Dates of admission and discharge;
(b) Nature of the ailment or illness for which you were
hospitalized;
9, Of your own knowledge, what injuries did you receive in the
accident involved in this case?
10
18. Of your own knowledge, will it be necessary for you to have
future medical treatment by reason of the within accident and, if so, who
advised you of the need for treatment and describe the type of treatment
discussed.
19. Describe any and all accidents and/or personal injuries you
have suffered since the accident here sued upon, giving dates, time and
place, parties involved and injuries involved.
20. Do you know of any person who witnessed the alleged occurrence
or who has any knowledge of the relevant facts concerning the nature,
character and extent of the injuries, disabilities, damages, losses or
expenses sustained by you as a result of the Occurrence and for which
claim is being made in this action?
21. If so, for each person, state:
(a) The name and last-known address;
(b) A detailed description of the relevant facts known;
(c) Whether written or otherwise recorded statement has been
taken, and, if so, the name and address of the person taking the
statement and the person in present custody of the statement;
(d) If you will do so without a Motion to Produce, attach a copy
of each statement to your Answers to these Interrogatories.
14
26. At the time of this accident, were you covered by any policy
of insurance which protected against the loss which is the subject of
this action including but not limited to auto insurance, health insurance
and disability insurance?
27. If so, state for ~ such policy::
(a) The name, principal place of business and telephone number
of the insurer;
(b) The name, address and telephone number of the named insured;
(c) The policy number;
(d) The effective dates of coverage;
(e) The amount of liability coverage, specifying the terms
thereof;
(f) State whether there are any provisions, such as medical pay
clauses, first party benefits, uninsured motorist's coverage,
underinsured motorist's coverage, or other insurance payment provisions,
which will provide benefits to a party injured by your vehicle and set
forth any conditions, exclusions or other relevant terms concerning such
additional benefits, including the amount(s) of coverage;
(g) The number of vehicles covered, if applicable.
(h) Your legal domicile at the time insurance was applied for;
18
(i 1 Your legal domicile at: t:he same t:ime each policy of
insurance (or any endorsement: theret:o) was issued:
(jl Did you elect full tort: option or limited t:ort opt:ion?
28. Has the insurance company or companies involved raised any
issue as to your coverage for damages arising from the aforesaid
accident? If so, please set forth in detail the basis for such issue,
reservation of right or denial of coverage.
29. If any issue as to coverage arising from this accident has been
raised by the insurance company or companies involved, please set forth
your position as to this issue.
19
30. Are you protected against the type of risk which is the subject
of this action by any:
(a) Reinsurance:
(b) Excess insurance:
(c) Umbrella pOlicy:
(d) Insurance on another owned or leased vehicle:
(e) Self-owned or closely held business insurance;
(f) Employer's liability insurance, if relevant?
31. If your answer to any portion of #30 above is in the
affirmative, for each such coverage state:
(a) The name, address and telephone number of the insurer:
(b) The number of the policy:
(c) The form of insurance:
(d) The effective dates of coverage:
(e) The amount of coverage, specifying the terms thereof,
(f) The name and address of the named insured:
(g) State whether there are any provisions such as medical pay
clauses, first party benefits, uninsured motorist's coverage,
underinsured motorist's coverage, or other insurance payment provisions,
which will provide benefits to a party injured by your vehicle and set
forth any conditions, exclusions or other relevant terms concerning such
additional benefits, including the amount(s) of coverage:
(h) The number of vehicles covered if applicable:
(i) Your legal domicile at the time each policy of insurance was
applied for:
20
(j) Your legal domicile at the time each policy of insurance (or
any endorsement thereto) was issued.
32. Has the insurance company or companies involved in your answer
to Interrogatory #31 raised any issue as to your coverage for damage
arising from the aforesaid accident. If so, please set forth in detail
the basis for each such issue, reservation of right or denial of
coverage.
33. Does any relative relliding in your household possess motor
vehicle insurance other than the coverage referred to in Interrogatory
#27 or #30?
34. On the date of this accident, were you the owner of a motor
vehicle registered in the Commonwealth of Pennsylvania?
21
, .
Please produce the fOllowing documents:
43. All photographs in the possession, custody or control of the
Plaintiff, counsel for Plaintiff, or any other person or entity acting
on behalf of the Plaintiff, including any insurers for the Plaintiff,
showing, representing or purporting to show any vehicles, locales,
instrumentalities, persons, and any and all other matters related to the
subject matters of this litigation.
44. All diagrams, sketches, drawings, plans, measurements, or
blueprints in the possession, custody or control of Plaintiff, counsel
for Plaintiff, or any other person or entity acting on behalf of said
Plaintiff, including any insurer of said Plaintiff, showing,
representing, or purporting to show any of the instrumentalities,
locales, persons or other matters involved in the incident which forms
the basis of Plaintiff's Complaint.
45. All statements, signed statements, transcripts of recorded
statements or interviews, recorded statements if not transcribed or any
statement of recorded statements if not transcribed verbatim taken of any
parties, persons, or witnesses as part of an investigation of the
happening or cause of the incident in question, conducted by, or in the
possession of Plaintiff, Plaintiff's attorney, insurers, or anyone else
acting on behalf of the Plaintiff.
46. All expert opinion, expert reports, expert summaries, or other
writings of experts in the possession, custody or control of Plaintiff,
or his/her attorneys or insurers who are expected to testify at trial,
which relate to the ~ubject matter of this litigation and the incident
in question.
24
47. All documents prepared by Plaintiff, or by any insurers,
representatives, agents or anyone acting on behalf of Plaintiff, except
his/her attorneys, during an investigation of any aspect of the incident
in question. Such documents shall include any documents made or prepared
up through the present time, 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.
(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, contracts,
agreements, notes, memoranda, analyses, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings or any other writing
(including copies of the foregoing, regardless of whether the parties to
whom this request is addressed is now in the possession, custody or
control of the original) now in the possession, custody or control of
Plaintiff, his/her former or present counsel, agents, employees,
officers, insurers, or any other person acting on Plaintiff's behalf.)
48. If not otherwise covered by the above Requests, the complete
claims/investigation/subrogation (file(s) of any insurers of Plaintiff,
dealing with 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.
25
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
RITA KAUFFMAN,
No. 97-1311
Plaintiff
v.
CIVIL ACTION - LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K.
MILLER, and ROBERT M. FREY,
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this ~day of May, 1997, I, Robert A. Lerman, Esquire,
a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS,
Esquires, hereby certify that I have, this date, served a copy of First
Set of Interrogatories and Request for Production of Documents of
Defendants to Plaintiff by United States Mail, addressed to the party or
attorney of record as follows:
Matthew S. Crosby, Esquire
HANDLER & WIENER
319 Market Street
Harrisburg, PA 17101
(Attorney for Plaintiff)
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BY:
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ROBERT A. E
Attorney for Defenda ts
Supreme Court I.D. o. 07490
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
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Definition of Terms
THESE DEFINITIONS FORM AN INTEGRAL PART OF THE FOLLOWING
INTERROGATORIES:
A. "And" and "Or" means "and/or," and the singular form shall be
deemed to include the plural and vice versa.
B. "Describe" or "Description" when used with reference to any
conversation, communication, statement, meeting, or discussion or any
act, transaction, occurrence, happening, instance, or event, means to
provide the following information:
1. The subject matter and substance of that which took place;
2. The time, date and place thereof;
3. The identification of each person who participated
therein, or who was a witness thereto; and
4. The identificetion of each communication or document which
refers thereto or which was prepared or made during the course thereof
or as a consequence thereof.
C. "Documents" shall mean the originals, and all non-identical
copies (whether different from the originals because of notes made from
such copies or otherwise), of all written, printed, recorded or graphic
matter of every kind and description, including all attachments or
addenda annexed thereto, whether inscribed by hand or mechanical,
electronic, microfilm, photographic or other means, as well as phonic or
visual reproductions, in the possession, custody or control of Plaintiff,
including by way of amplification and not limitation: contracts,
invoices, correspondence, notes, drafts, reports, plans, recordings,
diaries, desk calendars, interoffice and interoffice memoranda, memoranda
2
for file, memoranda of telephone conversations, and minutes of meetings
or conferences.
D. "He" and any other masculine pronoun includes any individual,
regardless of sex, to whom the interrogatory would otherwise apply.
E. "Identify," "Identification" or "Identity" means to provide the
following information:
1. When used with reference to a natural person, state his
full name and present or last known business and residence address, his
last known or present business affiliation, and his position in business
affiliation at the time of the transaction, occurrence, event, happening,
or matter in question.
2. When used with reference to any entity other than a
natural person (e.g., corporation, partnership, joint venture or
association), state:
(al Its full names;
(b) The address of its principal place of business; and
(c) Its organization form and its purposes, primary
business or activities.
3. When used with reference to an oral communication:
(a) State the place at which and the date on which such
oral communication occurred;
(b) Identify each person making such oral communication,
the person to whom it was made and each other person who was present (in
person or by telephone) when it was made;
(c) State the subject and substance of such oral
communication; and
3
(d) Specify, in accordance with paragraph (b) below,
each document which relates or refers to each such communication or which
was prepared and made during the course hereof or as a consequence
thereof;
F. "Person" means any natural person or any entity other than a
natural person, including, but not limited to, sole proprietorships,
partnerships, corporations, associations, joint ventures, co-ventures and
any other legally recognized entity of any description whatever, as well
as all divisions, departments, affiliates, subsidiaries, or other sub-
units of the foregoing entities.
G. "Specify" when used with reference to a "document," calls for:
1. The nature of the document (e.g., letter, contract, chart,
memoranda);
2. Its date;
3. Each author (and, in different, each signer) thereof, and
each person to whom the document was distributed;
4. Its subject matter and substance;
5. Its present or last known location or custodian;
6. The disposition of such document if it was but is no
longer in your possession or subject to your control; and
7. Any other information necessary to enable the custodian to
locate the particular document and necessary for use in a subpoena duces
tecum or in a demand for the production of the documents under Rule 4009
of the Pennsylvania Rules of Civil Procedure.
I. "Date" means the exact day, month and year if ascertainable, or,
if not, the best approximation (including the relation of other events).
4
8. Give the names and addresses of all hospitals where you have
been either as an in-patient or an out-patient during the ten (10) years
prior to the accident complained of and, as to each hospital, give:
(a) Dates of admission and discharge;
(b)
hospitalized;
Nature of the ailment or illness for which you were
9. Of your own knowledge, what injuries did you receive in the
accident involved in this case?
10
18. Of your own knowledge, will it be necessary for you to have
future medical treatment by reason of the within accident and, if 50, who
advised you of the need for treatment and describe the type of treatment
discussed.
19. Describe any and all accidents and/or personal injuries you
have suffered since the accident here sued upon, giving dates, time and
place, parties involved and injuries involved.
20. Do you know of any person who witnessed the alleged occurrence
or who has any knowledge of the relevant facts concerning the nature,
character and extent of the injuries, disabilities, damages, losses or
expenses sustained by you as a result of the occurrence and for which
claim is being made in this action?
21. If so, for each person, state:
(a) The name and last-known address;
(b) A detailed description of the relevant facts known;
(c) Whether written or otherwise recorded statement has been
taken, and, if so, the name and address of the person taking the
statement and the person in present custody of the statement;
(d) If you will do so without a Motion to Produce, attach a copy
of each statement to your Answers to these Interrogatories.
14
25.
Identify
and
describe
any
photographs,
experiments,
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J
videotapes, movies, transparencies, models, diagrams,
facsimilies,
drawings, plans, tests, or other device or thing to be utilized by any
expert to illustrate testimony or otherwise to support any opinion to be
offered.
17
26. At the time of this accident, were you covered by any policy
of insurance which protected against the loss which is the subject of
this action including but not limited to auto insurance, health insurance
and disability insurance?
27. If 50, state for ~ such policy::
(a) The name, principal place of business and telephone number
of the insurer;
(b) The name, address and telephone number of the named insured;
(c) The policy number;
(d) The effective dates of coverage;
(e) The amount of liability coverage, specifying the terms
thereof;
(f) State whether there are any provisions, such as medical pay
clauses, first party benefits, uninsured motorist's coverage,
underinsured motorist's coverage, or other insurance payment provisions,
which will provide benefits to a party injured by your vehicle and set
forth any conditions, exclusions or other relevant terms concerning such
additional benefits, including the amount(s) of coverage;
(g) The number of vehicles covered, if applicable.
(h) Your legal domicile at the time insurance was applied for;
18
(i) Your legal domicile at the same time each policy of
insurance (or any endorsement thereto) was issued;
(j) Did you elect full tort option or limited tort option?
28. Has the insurance company or companies involved raised any
issue as to your coverage for damages arising from the aforesaid
accident? If so, please set forth in detail the basis for such issue,
reservation of right or denial of coverage.
29. If any issue as to coverage arising from this accident has been
raised by the insurance company or companies involved, please set forth
your position as to this issue.
19
30. Are you protected against the type of risk which is the subject
of this action by any:
(a) Reinsurance;
(b) Excess insurance;
(c) Umbrella policy;
(d) Insurance on another owned or leased vehicle;
(e) Self-owned or closely held business insurance;
(f) Employer's liability insurance, if relevant?
31. If your answer to any portion of #30 above is in the
affirmative, for each such coverage state:
(a) The name, address and telephone number of the insurer;
(b) The number of the policy;
(c) The form of insurance;
(d) The effective dates of coverage;
(e) The amount of coverage, specifying the terms thereof,
(f) The name and address of the named insured;
(g) State whether there are any provisions such as medical pay
clauses, first party benefits, uninsured motorist's coverage,
underinsured motorist's coverage, or other insurance payment provisions,
which will provide benefits to a party injured by your vehicle and set
forth any conditions, exclusions or other relevant terms concerning such
additional benefits, including the amount(s) of coverage;
(h) The number of vehicles covered if applicable;
(i) Your legal domicile at the time each policy of insurance was
applied for;
20
, '
, ,.
Please produce the following documents:
43. All photographs in the possession, custody or control of the
Plaintiff, counsel for Plaintiff, or any other person or entity acting
on behalf of the Plaintiff, including any insurers for the Plaintiff,
showing, representing or purporting to show any vehicles, locales,
instrumentalities, persons, and any and all other matters related to the
subject matters of this litigation.
44. All diagrams, sketches, drawings, plans, measurements, or
blueprints in the possession, custody or control of Plaintiff, counsel
for Plaintiff, or any other person or entity acting on behalf of said
Plaintiff, including any insurer of said Plaintiff, showing,
representing, or purporting to show any of the instrumentalities,
locales, persons or other matters involved in the incident which forms
the basis of Plaintiff's Complaint.
45. All statements, signed statements, transcripts of recorded
statements or interviews, recorded statements if not transcribed or any
statement of recorded statements if not transcribed verbatim taken of any
parties, persons, or witnesses as part of an investigation of the
happening or cause of the incident in question, conducted by, or in the
possession of Plaintiff, Plaintiff's attorney, insurers, or anyone else
acting on behalf of the Plaintiff.
46. All expert opinion, expert reports, expert summaries, or other
writings of experts in the possession, custody or control of Plaintiff,
or his/her attorneys or insurers who are expected to testify at trial,
which relate to the suuject matter of this litigation and the incident
in question.
24
47. All documents prepared by Plaintiff, or by any insurers,
representatives, agents or anyone acting on behalf of Plaintiff, except
his/her attorneys, during an investigation of any aspect of the incident
in question. Such documents shall inclUde any documents made or prepared
up through the present time, 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.
(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, contracts,
agreements, notes, memoranda, analyses, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings or any other writing
(including copies of the foregoing, regardless of whether the parties to
whom this request is addressed is now in the possession, custody or
control of the original) now in the possession, custody or control of
Plaintiff, his/her former or present counsel, agents, employees,
officers, insurers, or any other person acting on Plaintiff's behalf.)
48. If not otherwise covered by the above Requests, the complete
claims/investigation/subrogation (file(s) of any insurers of Plaintiff,
dealing with 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.
25
RITA KAUFfMAN,
No. 97-1311
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
CIVIL ACTION - LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K.
MILLER, and ROBERT M. FREY,
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this ~day of May, 1997, I, Robert A. Lerman, Esquire,
a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS , CALKINS,
Esquires, hereby certify that I have, this date, served a copy of First
Set of Interrogatories and Request for Production of Documents of
Defendants to Plaintiff by United States Mail, addressed to the party or
attorney of record as follows:
Matthew S. Crosby, Esquire
HANDLER , WIENER
319 Market Street
Harrisburg, PA l710l
(Attorney for Plaintiff)
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Definition of Terms
THESE DEFINITIONS FORM AN INTEGRAL PART OF THE FOLLOWING
INTERROGATORIES:
A. "And" and "Or" means "and/or," and the singular form shall be
deemed to include the plural and vice versa.
B. "Describe" or "Description" when used with reference to any
conversation, communication, statement, meeting, or discussion or any
act, transaction, occurrence, happening, instance, or event, means to
provide the following information:
1. The subject matter and substance. of that which took place;
2. The time, date and place thereof;
3. The identification of each person who participated
therein, or who was a witness thereto; and
4. The identification of each communication or document Which
refers thereto or which was prepared or made during the course thereof
or as a consequence thereof.
C. "Documents" shall mean the originals, and all non-identical
copies (whether different from the originals because of notes made from
such copies or otherwise), of all written, printed, recorded or graphic
matter of every kind and description, including all attachments or
addenda annexed thereto, whether inscribed by hand or mechanical,
electronic, microfilm, photographic or other means, as well as phonic or
visual reproductions, in the possession, custody or control of Plaintiff,
including by way of amplification and not limitation: contracts,
invoices, correspondence, notes, drafts, reports, plans, recordings,
diaries, desk calendars, interoffice and interoffice memoranda, memoranda
2
. ,
for file, memoranda of telephone conversations, and minutes of meetings
or conferences.
D. "He" and any other masculine pronoun includes any individual,
regardless of sex, to whom the interrogatory would otherwise apply.
E. "Identify," "Identification" or "Identity" means to provide the
following information:
1. When used with reference to a natural person, state his
full name and present or last known business and residence address, his
last known or present busine~s affiliation, and his position in business
affiliation at the time of the transaction, occurrence, event, happening,
or matter in question.
2. When used with reference to any entity other than a
natural person (e.g., corporation, partnership, joint venture or
association), state:
(a) Its full names;
(b) The address of its principal place of business; and
(c) Its organization form and its purposes, primary
business or activities.
3. When used with reference to an oral communication:
(a) State the place at which and the date on which such
oral communication occurred;
(b) Identify each person making such oral communication,
the person to whom it was made and each other person who was present (in
person or by telephone) when it was made:
(c) State the subject and substance of such oral
communication; and
3
(d) Specify, in accordance with paragraph (b) below,
each document which relates or refers to each such communication or which
was prepared and made during the course hereof or as a consequence
the reo f;
F. "Person" means any natural person or any entity other than a
,
I
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I
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l
natural person, including, but not limited to, sole proprietorships,
partnerships, corporations, associations, joint ventures, co-ventures and
1. The nature of the document (e.g., letter, contract, chart,
any other legally recognized entity of any description whatever, as well
as all divisions, departments, affiliates, subsidiaries, or other sub-
units of the foregoing entities.
G. "Specify" when used with reference to a "document," calls for:
memoranda);
2. Its date;
3. Each author (and, in different, each signer) thereof, and
each person to whom the document was distributed;
4. Its subject matter and substance;
5. Its present or last known location or custodian;
6. The disposition of such document if it was but is no
longer in your possession or subject to your control; and
7. Any other information necessary to enable the custodian to
locate the particular document and necessary for use in a subpoena duces
tecum or in a demand for the production of the documents under Rule 4009
of the Pennsylvania Rules of Civil Procedure.
I. "Date" means the exact day, month and year if ascertainable, or,
if not, the best approximation (including the relation of other events) .
4
.'
8. Give the names and addresses of all hospitals where you have
been either as an in-patient or an out-patient during the ten (lO) years
prior to the accident complained of and, as to each hospital, give:
(a) Dates of admission and discharge;
(b)
hospitalized;
Nature of the ailment or illness for which you were
9. Of your own knowledge, what injuries did you receive in the
accident involved in this case?
10
18. Of your own knowledge, will it be necessary for you to have
future medical treatment by reason of the within accident and, if so, who
advised you of the need for treatment and describe the type of treatment
discussed.
19. Describe any and all accidents and/or personal injuries you
have suffered since the accident here sued upon, giving dates, time and
place, parties involved and injuries involved.
20. Do you know of any person who witnessed the alleged occurrence
or who has any knowledge of the relevant facts concerning the nature,
character and extent of the injuries, disabilities, damages, losses or
expenses sustained by you as a result of the occurrence and for which
claim is being made in this action?
2l. If so, for each person, state:
(a) The name and last-known address;
(b) A detailed description of the relevant facts known;
(c) Whether written or otherwise recorded statement has been
taken, and, if so, the name and address of the person taking the
statement and the person in present custody of the statement;
(d) If you will do so without a Motion to Produce, attach a copy
of each statement to your Answers to these Interrogatories.
14
26. At the time of this accident, were you covered by any policy
of insurance which protected against the loss which is the subject of
this action including but not limited to auto insurance, health insurance
and disability insurance?
27. If 50, state for ~ such pOlicy::
(a) The name, principal place of business and telephone number
of the insurer;
(b) The name, address and telephone number of the named insured;
(c) The policy number;
(d) The effective dates of coverage;
(e) The amount of liability coverage, specifying the terms
thereof;
(f) State whether there are any provisions, such as medical pay
clauses, first party benefits, uninsured motorist's coverage,
underinsured motorist's coverage, or other insurance payment provisions,
which will provide benefits to a party injured by your vehicle and set
forth any conditions, exclusions or other relevant terms concerning such
additional benefits, including the amount(s) of coveFage;
(g) The number of vehicles covered, if applicable.
(h) Your legal domicile at the time insurance was applied for;
18
.'
(i) Your legal domicile at the same time each policy of
insurance (or any endorsement thereto) was issued;
(j) Did you elect full tort option or limited tort option?
28. Has the insurance company or companies involved raised any
issue as to your coverage for damages arising from the aforesaid
accident? If so, please set forth in detail the basis for such issue,
reservation of right or denial of coverage.
29. If any issue as to coverage arising from this accident has been
raised by the insurance company or companies involved, please set forth
your position as to this issue.
19
30. Are you protected against the type of risk which is the subject
of this action by any:
(a) Reinsurance;
(b) Excess insurance:
(c) Umbrella policy;
(d) Insurance on another owned or leased vehicle;
(e) Self-owned or closely held business insurance;
(f) Employer's liability insurance, if relevant?
3l. If your answer to any portion of #30 above is in the
affirmative, for each such coverage state:
(a) The name, address and telephone number of the insurer;
(b) The number of the policy;
(c) The form of insurance;
(d) The effective dates of coverage;
(e) The amount of coverage, specifying the terms thereof,
(f) The name and address of the named insured;
(g) State whether there are any provisions such as medical pay
clauses, first party benefits, uninsured motorist's coverage,
underinsured motorist's coverage, or other insurance payment provisions,
which will provide benefits to a party injured by your vehicle and set
forth any conditions, exclusions or other relevant terms concerning such
additional benefits, including the amount(s) of coverage;
(h) The number of vehicles covered if applicable;
(i) Your legal domicile at the time each policy of insurance was
applied for;
20
, .
, ,
, ,
.'
Please produce the fOllowing documents:
43. All photographs in the possession, custody or control of the
Plaintiff, counsel for Plaintiff, or any other person or entity acting
on behalf of the Plaintiff, including any insurers for the Plaintiff,
showing, representing or purporting to show any vehicles, locales,
instrumentalities, persons, and any and all other matters related to the
subject matters of this litigation.
44. All diagrams, sketches, drawings, plans, measurements, or
bluaprints in the possession, custody or control of Plaintiff, counsel
for Plaintiff, or any other person or entity acting on behalf of said
Plaintiff, including any insurer of said Plaintiff, showing,
representing, or purporting to show any of the instrumentalities,
locales, persons or other matters involved in the incident which forms
the basis of Plaintiff's Complaint.
45. All statements, signed statements, transcripts of recorded
statements or interviews, recorded statements if not transcribed or any
statement of recorded statements if not transcribed verbatim taken of any
parties, persons, or witnesses as part of an lnvestigation of the
happening or cause of the incident in question, conducted by, or in the
possession of Plaintiff, Plaintiff's attorney, insurers, or anyone else
acting on behalf of the Plaintiff.
46. All expert opinion, expert reports, expert summaries, or other
writings of experts in the possession, custody or control of Plaintiff,
or his/her attorneys or insurers who are expected to testify at trial,
which relate to the subject matter of this litigation and the incident
in question.
24
47. All documents prepared by Plaintiff, or by any insurers,
representatives, agents or anyone acting on behalf of Plaintiff, except
his/her attorneys, during an investigation of any aspect of the incident
in question. Such documents shall include any documents made or prepared
up through the present time, 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.
(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, contracts,
agreements, notes, memoranda, analyses, projections, indices, work
papers, studies, reports, surveys, diaries, calendars, films,
photographs, diagrams, drawings, minutes of meetings or any other writing
(including copies of the foregoing, regardless of whether the parties to
whom this request is addressed is now in the possession, custody or
control of the original) now in the possession, custody or control of
Plaintiff, his/her former or present counsel, agents, employees,
officers, insurers, or any other person acting on Plaintiff's behalf.)
48. If not otherwise covered by the above Requests, the complete
claims/investigation/subrogation (file(s) of any insurers of Plaintiff,
dealing with 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.
25
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
RITA KAUFFMAN,
No. 97-1311
Plaintiff
v.
CIVIL ACTION - LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K.
MILLER, and ROBERT M. FREY,
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this ~day of May, 1997, I, Robert A. Lerman, Esquire,
a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS , CALKINS,
Esquires, hereby certify that I have, this date, served a copy of First
Set of Interrogatories and Request for Production of Documents of
Defendants to Plaintiff by United States Mail, addressed to the party or
attorney of record as follows:
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Matthew S. Crosby, Esquire
HANDLER , WIENER
319 Market Street
Harrisburg, PA 17101
(Attorney for Plaintiff)
ts
07490
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LAW OFFICES
GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS
110 S. NORniERN WAY
YORK, pENHSY\.VANIA 17402.3737
TaIPHDIlI-17l71 151._
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June 27, 1997
(Dictated June 18, 1997)
Matthew S. Crosby, Esquire
HANDLER & WIENER
319 Market Street
Harrisburg, PA 17101
RE: KBuffinnn v. Kazi Foods of Pennsylvania, Inc.
Cumberland County No. 97.1311
Dear Mr. Crosby:
Just a reminder that Plaintiff's Answers to my Interrogatories/Request for Production of
Documents were due on June 8, 1997.
v cry truly yours,
ROBERT A. LERMAN
mlclkazi.ltr.z
bee: William S. White, General Accident, Claim No. 636 39346AB
IN TB& COURT or CCHI)N PLEAS or ctlHBERLAND COUNTY, PENNSrL'nNIA
RITA KAUJ'J'HlUf,
Plaintiff,
No. 97-1311
v.
CIVIL ACTION - LAK
ItAZI I'OODS or PA, INC., d/b/a
ltINTUCltY I'RIED CHICDN, PIERSON It.
MILLER, and IIOBERT H. I'RBY,
Dafendant:.,
v.
DAVID 1tA~,
Additional Defendant.
JURY TRIAL DEHNmZD
~RTIFICATE OF SERVICE
AND NOW, this ~ day of September, 1997, I, Robert A. Lerman,
Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS ,
CALKINS, Esquires, hereby certify that I have, this date, served a copy
of First Set of Motion to Ccxopa1 of Defendant:. to Plaintiff by United
States Mail, addressed to the party or attorney of record as follows:
Matthew S. Crosby, Esquire
HANDLER , WIENER
319 Market Street
Harrisburg, PA 17101
(Attorney for Plaintiff)
George B. Faller, Jr.
HARTSON, DEARDORFF, WILLIAMS' OTTO
Ten East High Street
Carlisle, PA 17013
(Attorney for Additional Defendant,
Kauffman)
BY:
OBERT A. LE
Attorney for Defendants
Supreme Court I.D. No. 07490
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
m1c/kazi.mot.z
. .' .
"
9. Denied. It is denied that if Additional Defendant, Kauffman, is found liable to
I
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,
,
"
Plaintiff, which liability is expressly denied, its liability is secondary and passive to the liability
of the Defendants whose liability is the primary and active. On the contrary, it is averred that
the liability of Additional Defendant, Kauffman, is primary and it is further averred that at all
times relevant, Defendants acted carefully, lawfully, properly and prudently with due care under
the circumstances.
WHEREFORE, Defendants demand judgment in their favor and against Additional
Defendant, together with costs of suit.
Date:~1
BY: 'rf
OBERT A. LERMA
Attorney for Defendants
Supreme Court I.D. No. 07490
110 South Northern Way
York, PA 17402
(717) 757-7602
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
RITA KAUFFMAN,
PlalntilT.
No. 97-1311
v.
CIVIL ACTION. LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K.
MILLER, and ROBERT M. FREY,
Defendants,
v.
DAVID KAUFFMAN,
Additional Defendant.
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW. this I 1ll'H"I day of September, 1997, I. Robert A. Lennan. Esquire. a member of the
linn of GRIFFITH. STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify that I
have, this date, served a copy of Reply of Defendants, Kazi Foods of Pennsylvania, Inc. d/b/a
Kentucky Fried Chicken, Plenon K. Miller and Robert M. Frey to New Matter Punuant to
Pa.R.C.P. 2152(d) of Additional Defecdant, David KauITman by United States Mail, addressed to the
party or attorney of record as follows:
Matthew S. Crosby, Esquire
HANDLER & WIENER
319 Market Street
Harrisburg. P A 17101
(Attorney for Plaintiff)
George B. Faller, Jr.
MARTSON, DEARDORFF. WILLIAMS & OTIO
Ten East High Street
Carlisle. PA 17013
(Attorney for Additional Defendant, KaulTman)
BY:
,t-W
OBERT A, LERMA
Attorney for Defendants
Supreme Court I.D. No, 07490
110 South Northern Way
York. PA 17402
Telephone No. (717) 757.7602
F \f1LESlJATAnLEl.PlhllXJl"'M\.PRA IINb
('".'-dl)(w'19I'9109lll'lAM
1trnMC1l)(w'19flJl0919)lAM
'TIn 1\
RITA KAUFFMAN.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
KAZI FOODS OF PA, INC,. d/b/a
KENTUCKY FRIED CHICKEN,
PIERSON K. MILLER and
ROBERT M, FREY.
Defendants
CIVIL ACTION-LAW
NO. 97-131]
v,
DAVID KAUFFMAN,
Additional Defendant
JURY TRIAL OF TWELVE DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Enter the appearance of MARTSON, DEARDORFF, WILLIAMS & OTTO in behalf of
Additional Defendant David Kauffinan. in the above matter, Defendant hereby demands a twelve
juror jury trial in the above captioned action.
By
George . Faller. J '. Esquire
J.D. No, 49813
Ten East High Street
Carlisle. PA ]7013
(717) 243-3341
Attorneys for Additional Defendant
David Kauffinan
Dated: June 19, 1997
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSVLV ANIA
RITA KAUFFMAN,
Plaintiff,
No. 97-1311
v.
CIVIL ACTION . LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K. :
MILLER, and ROBERT M. FREY,
Defendants,
v.
DAVID KAUFFMAN,
Additional Defendant.
JURY TRIAL DEMANDED
PRAECIPE TO SUBSTITUTE VERIF[CATION
TO THE PROTHONOTARY:
Please substitute the attached Verification of the Defendant. Kazi Foods of Pennsylvania,
Inc. for the Verification of Defendant's counsel attached to the Complaint of Defendants Joining
Additional Defendant, David Kauffman, previously filed on May 13, [997.
CALK[NS
"
BY:
D'.~'l',.I" /q91
mlclklli2. .Z '
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OBERT A. LERM N
Attorney for Defendants
Supreme Court I.D. No. 07490
[10 South Northern Way
York. PA [7402
Telephone No. (7[ 7) 757-7602
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NO. 97-1311 CIVIL TERM
serious injury; and that non-economic damages may be barred
because plaintiff has elected a limited tort option as set forth
in 75 Pa. C.S.A. S217. On May 13, 1997, defendants filed a
complaint joining the husband of plaintiff as an additional
defendant. On May 19, 1997, plaintiff filed preliminary
objections to the new matter filed by defendants which asserted
plaintiff's claims may be barred because she had selected a
limited tort option. The case was argued on August 13, 1997.
DISCUSSION
The "limited tort" option as set forth in 75 Pa. C.S.A.
1705A provides in part as follows:
The laws of the Commonwealth of Pennsylvania give you
the right to choose a form of insurance that limits
your right and the right of members of your household
to seek financial compensation for injuries caused by
other drivers.
Plaintiff has not brought suit against the operator of a
motor vehicle. She has filed suit against owners of real
property alleging their failure to properly maintain their
property caused the injuries to plaintiff. Therefore, the
limited tort provision cited above is not applicable in this
litigation and plaintiff may seek to recover non-economic damages
against the original defendants.
Counsel for both parties are directed to furnish briefs to
the Court five (5) days before a pretrial conference setting
forth whether the limited tort option would apply if the husband
of plaintiff was found by a jury to be solely or jointly liable
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5. At all times mentioned herein, Defendants were in
exclusive ownership, possession, management, and crntrol of the
parking lot located on the premises at the corrr~ of Route 114 and
Carlisle Pike, in Mechanicsburg, Cumberland County, Pennsylvania,
on which a Kentucky Fried Chicken franchise is located.
6. On or about November 21, 1995, Plaintiff, was a passenger
in a vehicle operated by her husband as they were attempting to
travel across the aforementioned parking lot at the corner of Route
114 and Carlisle Pike, in Mechanicsburg, Cumberland County,
Pennsylvania.
7. Suddenly and without warning, the underside of the
aforementioned vehicle struck a protruding manhole cover causing
the air bags to deploy and injuring Plaintiff, Rita Kauffman.
COUNT I
RITA KAUFFMAN v. KAZI FOODS OF PA. INC.
8. Plaintiff incorporates and makes part of this count
paragraphs 1 through 7, as if fully set forth herein.
9. The occurrence of the aforesaid incident and the injuries
to Plaintiff resulting therefrom, were caused directly and
proximately by the negligence of Defendant, generally and more
specifically as set forth below:
a. In allowing the manhole cover to protrude above the
surface of the parking lot when it knew or should
have known that it would pose an unreasonable risk
2
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, Cumberland County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
3
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
10. As a direct and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
11. As a direct and proximate result of the negligence of
Defendant, Plaintiff has undergone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her great physical,
emotional, and financial detriment and loss.
12. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
act i vi ties and duties to her great detriment, loss, humiliation,
and embarrassment.
4
13. As a result of the negligence of Defendant, Plaintiff has
and probably will in the future suffer a loss of life's pleasures,
and a claim is made therefore.
14. As a direct and proximate result of the negligence of
Defendant, Plaint if f has been compelled, in order to af feet a cure
for the aforesaid injuries, to expend money for medicine and
medical attention, and may be required to exper.d money for the same
purposes in the future, to her great detriment and loss.
15. Plaintiff believes and therefore avers that her injuries
are permanent in nature.
WHEREFORE, Plaintiff, Rita Kauffman, seeks damages from
Defendant, Kazi Foods of PA, Inc., in an amount in excess of
Thirty-Five Thousand Dollars ($35,000.00) and demands trial by
jury.
COUNT II
RITA KAUFFMAN v. PIERSON K. MILLER
16. Plaintiff incorporates and makes part of this Count,
paragraphs 1 through 15, as if fully set forth herein.
17. The occurrence of the aforesaid incident and the injuries
to Plaintiff resulting therefrom, were caused directly and
proximately by the negligence of Defendant, generally and more
specifically as set forth below:
a. In allowing the manhole cover to protrude above the
surface of the parking lot when it knew or should
5
have known that it would pose an unreasonable risk
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole covel- in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, Cumberland County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
6
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
18. As a dil'ect and pl-oximate l-esult of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
19. As a direct and proximate result of the negligence of
Defendant, Plaint if f has undergone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her great physical,
emotional, and financial detriment and loss.
20. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindel'ed from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
7
21. As a result of the negligence of Defendant, Plaintiff has
and probably will in the future suffer a loss of life's pleasures,
and a claim is made therefore.
22. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been compelled, in order to affect a cure
for the aforesaid injuries, to expend money for medicine and
medical attention, and may be required to expend money for the same
purposes in the future, to her great detriment and loss.
23. Plaintiff believes and therefore avers that her injuries
are permanent in nature.
WHEREFORE, Plaintiff, Rita Kauffman, seeks damages from
Defendant, pierson K. Miller, in an amount in excess of Thirty-Five
Thousand Dollars ($35,000.00) and demands trial by jury.
COUNT III
RITA KAUFFMAN v. ROBERT M. FREY
24. Plaintiff incorporates and makes part of this Count,
paragraphs 1 through 23, as if fully set forth herein.
25. The occurrence of the aforesaid incident and the injuries
to Plaintiff resulting therefrom, were caused direstly and
proximately by the negligence of Defendant, generally and more
specifically as set forth below:
a. In allowing the manhole cover to protrude above the
surface of the parking lot when it knew or should
have known that it would pose an unreasonable risk
8
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole covel- in the
parking lot located on the premises at the corner
of Route 114 and carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invi tees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, Cumberland County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
9
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
26. As a dil-ecc and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
27. As a direct and proximate result of the negligence of
Defendant, plaintiff has undergone great physical pain, disl om fort ,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her great physical,
emotional, and financial detriment and loss.
28. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
act i vit ies and dut ies to her great detriment, loss, humiliation,
and embarrassment.
10
........
~
possession, management, and control of the parking lot located on
the premises at the corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania, on which a Kentucky
Fried Chicken franchise is located. On the contrary, at all times
relevant, Defendants, Pierson K. Miller and Robert M. Frey, were
the landlords out of possession of certain property located at the
corner of Route 114 and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, on which a Kentucky Fried Chicken franchise
is located, and it is averred that Defendant, Kazi Foods of
Pennsylvania, Inc. d/b/a Kentucky Fried Chicken, was the tenant of
the premises located at the corner of Route 114 and Carlisle Pike,
in Mechanicsburg, Cumberland County, Pennsylvania.
6.
Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth or veracity of the allegations contained in paragraph 6
of Plaintiff's Complaint and same are denied and strict proof
thereof demanded.
Denied.
7.
On the contrary, it is averred that no
protruding manhole existed on Defendants' premises on or about
November 21, 1995, as the Plaintiff alleges.
2
---
,-.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumberland
County,
Pennsylvania;
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
g. In failing to properly inspect for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania;
4
,.-..,
,......
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintif f of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all times relevant
hereto, answering Defendants acted carefully, lawfully, properly
and prudently and with care under the circumstances. By way of
further answer, it is averred that no protruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Complaint and strict proof
thereof is hereby demanded. It is further averred that ownership,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendants
over whom Defendants had no responsibility or right of control.
10.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 10 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
5
--..
,....,
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 10 of Plaintiff's
Complaint.
ll.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 11 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 11 of Plaintiff's
Complaint.
12.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 12 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 12 of Plaintiff's
Complaint.
6
~
~
13.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 13 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 13 of Plaintiff's
Complaint.
14.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 14 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 14 of Plaintiff's
Complaint.
15.
Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth or veracity of the allegations contained in paragraph 15
7
"""'"
"""'
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania;
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
d. In failing to rroperly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike. in Mechanicsburg, Cumberland County,
Pennsylvania;
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
9
.........
,.....
g. In failing to properly inspect for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania;
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all times relevant
hereto, answering Defendants acted carefully, lawfully, properly
and prudently and with care under the circumstances. By way of
further answer, it is averred that no protruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Complaint and strict proof
thereof is hereby demanded. It is further averred that ownership,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendants
over whom Defendants had no responsibility or right of control.
10
---
rl
18.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 18 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 18 of Plaintiff's
Complaint.
19.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 19 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 19 of Plaintiff's
Complaint.
20.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
11
"""'\
,.....
allegations of paragraph 20 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 20 of Plaintiff's
Complaint.
2l.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 21 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 21 of Plaintiff's
Complaint.
22.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 22 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
12
---.,
,......,
therefrom, were caused directly or proximately by the negligence of
Defendant, generally and more specifically as set forth below:
a. In allowing the manhole cover to protrude above the
surface of the parking lot when it knew or should
have known that it would pose an unreasonable risk
of harm to individuals lawfully upon the premises
such as the Plaintiffs;
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania;
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
14
..-,
,-,
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, Cumberland County,
Pennsylvania;
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County. Pennsylvania;
g. In failing to properly inspect for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania;
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all times relevant
hereto, answering Defendants acted carefully, lawfully, properly
and prudently and with care under the circumstances. By way of
further answer, it is averred that no protruding manhole or other
15
""'"
,....
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Complaint and strict proof
thereof is hereby demanded. It is further averred that ownership,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendants
over whom Defendants had no responsibility or right of control.
26.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 26 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 26 of Plaintiff's
Complaint.
27.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 27 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
16
~
~
of the allegations contained in paragraph 27 of Plaintiff's
Complaint.
28.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 28 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 28 of Plaintiff's
Complaint.
29.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 29 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 29 of Plaintiff's
Complaint.
17
'"""
,-...
30.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 30 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 30 of Plaintiff's
Complaint.
3l.
Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth or veracity of the allegations contained in paragraph 31
of Plaintiff's Complaint and same are denied and strict proof
thereof demanded.
WHEREFORE, the Defendant, Robert M. Frey, demands
judgment in its favor and against the Plaintiff together with
interest and costs of suit.
18
""'"
~
NEW MATTER
32.
The answers as set forth in Paragraphs 1 through 31 of
Defendants' Answer and New Matter are incorporated herein by
reference as though fully set forth at length.
33.
Plaintiff's Complaint fails to state a cause of action
upon which any relief can be granted.
34.
Plaintiff's Complaint may be barred by applicable
statutes of limitation.
35.
Plaintiff's injuries and damages were caused solely and
directly as a result of the negligence, carelessness and
recklessness of David Kauffman, which negligence, carelessness and
recklessness consisted of the following:
a. Operating his vehicle at an excessive rate of
speed;
b. Operating his vehicle at a speed too great for the
conditions existing;
C. Operating his vehicle at an excessive speed in a
private parking lot;
19
......
,.......
d. Failing to keep a proper look-out;
e. Failing to keep his vehicle under proper control;
f. Failing to exercise care for the safety of
passengers in his vehicle;
g. If it is found that the manhole struck was
protruding above the surface of the parking lot,
which conclusion is denied, Davij Kauffman failed
to observe such condition and/or encountered it
voluntarily and intentionally, causing the injuries
and damages Plaintiff alleges.
36.
At the time of the alleged incident, Plaintiff and her
husband were trespassing upon the property of the Defendants.
37.
Plaintiff's injuries and damages, if any, were caused as
a result of the acts or the omissions of individuals or entities
other than Defendants, over whom Defendants had no responsibility
or right of control.
38.
Plaintiff's injuries and damages, if any, may have been
caused by a malfunction of the airbags or airbag release mechanism
in the motor vehicle in which she was a passenger.
20
.-.,
,....,
39.
Plaintiff has not sustained a serious injury as defined
by the Pennsylvania Motor Vehicle Financial Responsibility Law (75
Pa.C.S.A. ~1702 et seq).
40.
Plaintiff's claim for non-economic damages may be barred
because Plaintiff has elected a limited tort option as set forth in
the Pennsylvania Motor Vehicle Financial Responsibility Law (75
Pa.C.S.A. ~1702 et seq).
4l.
Plaintiff may have failed to mitigate her damages.
42.
Plaintiff has received or is entitled to receive various
benefits from other insurance arrangements, programs and group
contracts of insurance, including but not limited to benefits
under the Pennsylvania Motor Vehicle Financial Responsibility Law
and she may not recover for the same benefits in this proceeding.
43.
The injuries and damages that Plaintiff claims to have
sustained in this motor vehicle accident may have pre-existed this
accident and were not caused as a result of this accident.
21
""
r-
44.
The injures and damages that Plaintiff claims to have
sustained in this motor vehicle accident may have pre-existed this
accident and were not aggravated or exacerbated by this accident.
45.
The injures and damages that Plaintiff claims to have
sustained in this motor vehicle accident may have been sustained
subsequent to this accident and are not related to this accident.
46.
Plaintiff has recovered from the injuries that she
allegedly sustained as a result of this accident.
WHEREFORE, the Defendants demands judgment in his favor
and against the Plaintiff together with interest and costs of suit.
y Submitted,
BY:
D.", ~
rranrn\lls\kaz .anm
OBERT A. LE
Attorney for Defendants
Supreme Court I.D. No. 07490
110 South Northern Way
York, PA 17402
riq (jq1
,
22
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New Matter in response to Plaintiff's complaint on or about April
29, 1997, a copy of which is attached hereto and marked as Exhibit
liB".
5. Paragraph Number 40 of Defendants' New Matter, alleges
that Plaintiff's claim for non-economic damages may be barred
because Plaintiff had elected a limited tort option as set forth in
the Pennsylvania Motor Vehicle Financial Responsibility Law (75 Pa.
C.S.A. ~1702 ~ ~) .
6. Pursuant to 42 Pa. C.S.A. ~1028 (a) (4), Plaintiff hereby
seasonably objects to Defendants' claims on the basis of the legal
insufficiency of the pleading.
7. In enacting the 1990 amendments (hereinafter Act 6) to
Pennsylvania's motor vehicle insurance law, the General Assembly
sought to temper the rising cost of automobile insurance. 75
Pa.C.S.A. ~ 1701 ~ ~ (Emphasis added); Donnellv v. Bauer, 683
A.2d 1242, 1243 ( Pa.Super. 1996).
8. As part of this plan, the legislature established rate
reductions linked to the election of tort options. See 75
Pa.C.S.A. ~ 1705 and ~ 1799.7 (b) (1).
9. Those individuals who have elected or are otherwise bound
by the limited tort option are limited with regard to their right
to seek financial compensation "for injuries caused by other
drivers." 75 Pa.C.S.A. ~ 1705 (1).
10. Since the Defendants in this case were not the operators
or owners of a motor vehicle involved in this incident, it would be
contrary to the public policy of Act 6 to limit Plaintiff's
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RITA KAUFFMAN.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN,
PIERSON K. MILLER and
ROBERT M. FREY,
Defendants
CIVIL ACTION-LAW
NO, 97-1311
v.
DAVID KAUFFMAN,
Additional Defendant
JURY TRIAL OF TWELVE DEMANDED
ANSWER WITH NEW MATIER OF ADDITIONAL DEFENDANT
TO COMPLAINT OF DEFENDANTS
TO: KAZI FOODS OF PA, INC" d/b/a KENTUCKY FRIED CHICKEN, PIERSON K. MILLER
and ROBERT M. FREY, Defendants, and their attorney, ROBERT A. LERMAN, ESQUIRE
YOU ARE HEREBY NOTIFIED TO FILE A WRlTIEN RESPONSE TO THE
ENCLOSED NEW MA TIER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF
OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
1-3. Admitted.
4. The averments contained in said paragraph are conclusions of law to which no
response is required, To the extent a response may be deemed required, these averments are denied.
5. Denied pursuant to Pa. R,C.P, 1029(e).
6, The averments contained in said paragraph are conclusions of law to which no
response is required. To the extent a response may be deemed required. these averments are denied.
WHEREFORE, Defendant David Kauffman demands judgment in his favor and dismissal
of the Complaint of Defendants,
NEW MATIER
The averments of paragraphs 1 through 6 of this Answer are incorporated herein by
reference,
The Plaintilrs recovery is barred or reduced by the Pennsylvania Motor Vehicle Financial
Responsibility Law as amended,
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forth in the Pennsylvania Motor Vehicle Financial Responsibility
Law (75 Pa. C.S.A. ~1702 ~ ~) .
Plaintiff, Rita Kauffman, commenced the above-captioned civil
action by filing a complaint on or about March 13, 1997, a copy of
which is attached hereto and marked as Exhibit "A" .
Defendants,
filed an Answer and New Matter in response to Plaintiff's complaint
on or about April 29, 1997, a copy of which is attached hereto and
marked as Exhibit "B".
II. OUESTIONS PRESENTED
A. IS PLAINTIFF PERMITTED TO RECOVER NON-ECONOMIC DAMAGES
FROM THE DEFENDANT WHERE PLAINTIFF HAS ELECTED THE
LIMITED TORT OPTION BUT THE INCIDENT AT ISSUE WAS NOT
CAUSED BY THE NEGLIGENCE OF ANOTHER MOTOR VEHICLE
OPERATOR, BUT RATHER WAS DUE TO NEGLIGENTLY MAINTAINED
PREMISES?
(Proposed answer in the affirmative.)
III. DISCUSSION
A. PLAINTIFF'S ELECTION OF LIMITED TORT COVERAGE
ON HER MOTOR VEHICLE POLICY DOES NOT LIMIT RECOVERY FOR
INJURIES SUSTAINED IN A PREMISES LIABILITY CASE.
Plaintiff is not prohibited from recovering non-economic
damages in the case at bar. Plaintiff has brought suit against the
owners of real property. Plaintiff claims it is these landowners
who are responsible for the incident which caused her injuries.
Plaintiff has alleged, inter alia, that Defendants failed to
maintain their property, failed to mark the manhole cover in
question, failed to inspect the property for hazardous conditions,
and failed to warn Plaintiff of the hazardous conditions then and
there existing.
2
Plaintiff has not brought suit against the operator of a motor
vehicle. Plaintiff has not claimed that the operator of a motor
vehicle caused or in any way contributed to the injuries she
sustained. Nowhere has Plaintiff alleged any negligence whatsoever
in the operation of a motor vehicle.
In 1990 the General Assembly enacted amendments to the Motor
Vehicle Financial Responsibility Law, 75 Pa.C.S.A. ~1701 et ~
(hereinafter Act 6). The purpose of those enactments was to temper
the rising costs of automobile insurance. See Donnellv v.Bauer, 683
A.2d 1242 (1996). (Emphasis added). The legislature was not
concerned with the costs of health insurance, flood insurance, or
homeowners insurance. Automobile insurance costs were rising and
the legislature wanted to lower those escalating costs. In order
to effectuate such policy the legislature established a plan
whereby automobile insureds could reduce their rates by electing
the limited tort option. ~
The plan enacted by the legislature allowed an insured to
choose a limited tort option where they would pay lower premium
rates in exchange for relinquishing the right to recover non-
economic damages in certain cases. Id. By enacting this
legislation "the insured would benefit and, if the legislature's
objectives for control over litigation carried through, the benefit
would reach all Pennsylvanians insureds in the form of reduced
insurance rates." ~, at 1244. In other words, there would be
fewer pain and suffering claims made against automobile insurance
3
companies, and that in itself, would lower the automobile insurance
rates for everyone.
The Court in Donnellv stated that when interpreting a statute
the court must at all times "seek to ascertain and effectuate the
legislative intent." lsL., at 1246; See 1 Pa.C.S.A. ~ 1921(a).
Following this purpose, the Court cited Pennsylvania Assiqned
Claims Plan v. Enqlish, 541 Pa. 424, 429-31, 664 A.2d 64, 67
(1995), which stated that" [w] here the words of a statute are clear
and free from ambiguity the legislative intent is to be gleaned
from those very words." lsL. Finally, the Court reasoned that
where the intent of the legislature is clear from the words in the
statute a court should not assign contrary meaning to language
which is clear. Id.; ~ Crosby bv Crosbv Y. Sultz, 405 Pa.Super.
527, 592 A.2d 1137 (1991).
The statute is clear. "The laws of the Commonwealth of
Pennsylvania give you the right to choose a form of insurance that
limits your right and the right of members of your household to
seek financial compensation for injuries caused by other drivers."
75 Pa.C.S.A. ~1705 (a) (1) (A). (Emphasis added) .
The policy of the legislature in enacting Act 6 and the plain-
meaning of the statute are consistent. The goal of each is to
lower automobile insurance premiums. One of the "means" to reach
that "end" was the introduction of limited tort into the automobile
insurance arena. Again, limited tort, it was thought, would reduce
4
The operator of PlaintilTs motor vehicle, David Kauffman, has been joined as an
Additional Defendant, and Defendants allege that his negligence was the sole and direct cause
of any injuries or damages Plaintiff sustained.
II, ISSUE.
Are Defendants, as the owners or occupiers of real property. entitled to assert the
affirmative defense of PlaintilTs limited tort option?
Suggested Answer: Yes.
III. ARGUMENT.
Plaintiff s recovery is limited to economic damages, because of her tort election, if it is
factually determined that the injuries and damages she sustained (if any) were caused by the
driver of a motor vehicle. 75 Pa.C.S.A. ~ 1705. Whether PlaintilTs injuries and damages were
caused by a condition on Defendants' premises or whether they were caused by the negligence
of Additional Defendant, David Kauffman, the operator of the motor vehicle in which Plaintiff
was riding, is a factual issue to be determined by a jury.
By Plaintiff's admission, it is undisputed that Rita Kauffman was a passenger in a motor
vehicle operated by Additional Defendant, David Kauffman. By PlaintilTs admission, she
sustained personal injuries when the air bag on the motor vehicle in which she was a passenger
deployed.
By Plaintiffs admission, she was vehicle oriented at the time of this accident.
The Pennsylvania Motor Vchicle Financial Responsibility Law was enacted precisely to
provide a financial vehicle for compensation of all injuries arising out of a motor vehicle
accident. Cumminl!s v. State Farm, 408 Pa. Super. 381, 596 A.2d 1 \38 (1991). Arising out of
2
motor vehicle accident has been defined to mean connected with, not proximately caused by and
a cause Wld result relationship is enough to satisfy the arising out of phrase under Wl automobile
policy of insurWlce. Varner v. Nationwide Mut. Ins. Co" 340 Pa. Super. 2[ [,489 A.2d 918
(1985). The purpose of automobile insurWlce is to compensate for vehicle-caused injuries.
Lebanon Coach Comoanv v. Carolina Casualtv Insurance, 450 Pa. Super. 1,675 A.2d 279 app.
den. 687 A.2d 378 (1997).
[n putting the Plaintiffs limited tort election at issue, DefendWlts maintain that Plaintiff
may be barred from recovering non-economic damages because of her limited tort election if it
is ultimately determined bv the trier of fact that her Iniuries were caused solelv as a result
of the nel!lll!enee of the driver of her motor vehicle In which she was a nassenl!er.
IV. IN CONCLUSION.
Plaintiffs Preliminary Objections should be dismissed Wld DefendWlts respectfully request
that this Honorable Court direct that special jury interrogatories at the time of trial shall be
utilized to resolve this issue.
:i
"
,I
rn~
BY:
~,:~zi~0 ~ :J71J qq1
ERT A. LE A
ttorney for DefendWlts
Supreme Court to. No. 07490
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
3
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
RITA KAUFFMAN,
No. 97-1311
Plaintiff,
v.
CIVIL ACTION - LAW
KAZI FOODS OF PA,INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K.
MILLER, and ROBERT M. FREY,
DefendanlJ,
v.
DAVID KAUFFMAN,
Additional Defendant.
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 27th day of May, 1997, I, Robert A. Lennan, Esquire, a member of the linn of
Griffith, Strickler, Lennan, Solymos & Calkins, Esquires, hereby certify that I have, this date, served a
copy of the Brief of DefendanlJ In Opposition to Plalntil1's Preliminary Objections, by United States
Mail, addressed to the party or allorney of record as follows:
Mallhew S. Crosby, Esquire
HANDLER & WIENER
319 Market Street
Harrisburg, P A 1710 I
David Kauffman
65 Big Dam Road
Dillsburg, P A 170 I
BY:
R BERT A. LERMA
Attorney for Defendants
Supreme Court tD. No. 07490
110 South Northern Way
York, PA 17402
Telephone No, (717) 757-7602
w
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VS.
KA>:1 FUI)I>:'; I.W PA [Ne 1::1' AI.
I)AVJI1 NCK1NN.;V
.' :-)hC'r~if or !i::-puly ~;h&:riff of
CUNIILI~1.ANl' County. Pennsylvan~a, who be1ng dul:: sworn 'lCCOrdlng
to Jaw, says, ~he w1th1n ~UNI'I,^llH
"pnn "A'/. I ,.'1)111)::; IJF PA ItlC 11/H/A KEtlTUCKV nnt';l> CIIII:hEII
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. CIINlll::llUdIC'
-'
County, Pennsylvan1a, by hand'Cl\l tn ['AM SNYSLH. MANAGLH ANt. F'I::I,SUN
[N CHARGE
a 'rue and at t.ested copy c,1 the CiJNPLA [NT
t0ge~her with NUT ICE
and at thr.! same time dlrectlng Her ::jtt(!nt~on to the r::onten(s t.hereof.
SheJ'lff"s Costs:
r'OCK",t.1 ng
~_~erv Ice
Affldavlt
:;urcharge
S'J an~wer;;:96~~~
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CUMUEW ANI' County. PennsylvanIa. who b.nng duly sworn accordIng
t c, law, says, the Wl.thln rOMPI.i\INT W<iS served
upon fR~Y ROH~RT M
the
d,,'icnd'lnt, at IJ:I.J:00 HOURS, on the 17th da,' of li3.rch
.--.'
1':<::''':' at
1010 DI/AY~R CUURT
LAHtl::;L!:." PA 17013 ,[,,\,JMIJj;fiLANI'
("tlnty, PennsylvanIa. by har,d1ng to ELVA FREY, WIFE OF DEFT. AND
n:R~:Url IN CIlARGE
a I,cue Clnd attested copy of tht'
lngether with NUTIC~
(.'JMPLA lIlT
;]nd at the same tl.me dl.rectlnq lb.::..!=- dt.tent ton t(l th~ contl.?nt8 t-.hl?rl:>('.i.
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dml \COmp141n\premues\kaul t 1TId1l. pi
RITA KAUFFMAN,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO:
KAZI FOODS OF PA, INC.,
d/b/a KENTUCKY FRIED CHICKEN.
PIERSON K. MILLER, and
ROBERT M. FREY,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes Plaintiff. Rita Kauffman, by and ':.~!'o'J>:Th her
attorneys, HANDLER and WIENER, and makes the within Complaint
against Defendants as follows:
1. Plaintiff, Rita Kauffman, is an adult individual who is
currently residing at 65 Big Dam Road, Dillsburg, Pennsylvania.
2. Defendant, Kazi Foods of PA, Inc., d/b/a Kentucky Fried
Chicken, is a corporation with its principal place of business at
the corner of Route 114 and Callisle Pi::e, in Mechanicsburg,
Cumberland County, Pennsylvania.
3. Defendant, Pierson K. Miller, is an adult individual
currently residing at 267 South College Street, Carlisle,
Cumberland County, Pennsylvania.
4. Defendant, Robert M. Frey, is an adult individual
currently residing at 1010 Drayer Court, Carlisle, Cumberland
County, Pennsylvania.
1
RECEIVED
~IAR 1 1 1997
HARRlSe_R3 a' ':1 '11\ c';fK ;
of harm to individuals lawfully upon the premises
such as the Plaintiff.
/
u
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover, in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumberland
County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
3
RECEIVED
~'AR I I 1997
HARRISBURG SR ClAWS OffICE
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
10. As a direct and proximate result of the foregoing
negligence of Defendant, plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine, As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
11. As a direct and proximate result of the negligence of
Defendant, Plaintiff has undergone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her great physical,
emotional, and financial detriment and loss.
12. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
4
RECEIVED
~1AR I t 1997
HARRISBURG 8P. CLAIMS OfFICE
have known that it would pose an unreasonable risk
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue ~f its
ownership, of the unmarked manhole cover in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mar)c the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumberland
County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania:
6
Rt:'~EIVED
~IAR 1 1 1997
HARRISBURG Brr ClAIl.I~ OFFICE
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
18. As a direct and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
19. As a direct and proximate result of the negligence of
Defendant, Plaintiff has undergone g=eat physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her great physical,
emotional, and financial detriment and loss.
20. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
7
RECEIVED
MAR , , 1997
HARRISBURG BR ClAIlIS OFFICe
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover .in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In fa; 1 ing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumberland
County,
Pennsylvania.
f. In failing to use reasonable prudence in the .care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
9
RE~cIVED
MAR 1 1 1997
HARRISBURG 8R. CLANS OFFICE
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
26. As a direct and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
27. As a direct and proximate result of the negligence of
Def~ndant, Plaintiff has und~rgone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her great physical,
emotional, and financial detriment and loss.
28. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the futur~ be
hindered from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
10
. .
.,.f.
~lAR 1 1 1997
,,,....~..o.Iw,'.., JI. ~L"IM.; I.lfFtcl
VERIFICATION
The undersigned hereby verifies that the statements in the
foregoing COMPLAINT, are based upon information which has been
furnished to counsel by me and information which has been gathered
by counsel in the preparation of this lawsuit. The language of the
above-named COMPLAINT is of counsel and not my own. I have read
the COMPLAINT and to the extent that it is based upon information
which I have given to counsel, it is true and correct to the best
vi ",y ~.._'..i~c.i9.:, ~;::ormation and belief, To the .:;.::"..~ :".,', :;:.:
contents of the COMPLAINT is that of counsel, I have relied upon my
counsel in making this verification,
The undersigned also
understands that the statements therein are made subject to the
penalties of 18 Pa.R.C.P. 2252(d) Section 4904, relating to unsworn
falsification to authorities.
Date: <3-& 97
~ I:tt. j)
. t!U ' L. O'lt O~
RITA KAUF MAN 1': ~.'
"
RECEIVED
MAR 1 1 1997
iARIllSS~~,!\ ClAIIIS OFFICI
possession, management, and contra! of the parking let located en
the premises at the corner of Route 111, and CarlLle Pike, in
Mechanicsburg, Cumberland CO'.::1ty, Pennsylvania, en \~hi::h a Kentucky
Fried Chicken franchise is located. On the contrary, ~t all times
relevant, Defendants, Pierson K. Miller and Robert ~. Frey, were
the landlords out of possession of certain property l~:ated at the
corner of Route 114 and Carlisle Pike, in r-:echanicsburq, C'.::nberland
County, Pennsylvania, on which a Kentucky ?ried Chic~an franchise
. located, and it is averred that Defendant, Kaz.: Foods of
Pennsylvania, Inc. d/b/a Kentucky Frie~ Chicken, was the tenant of
the premises located at the corner of Route 114 and Carlisle Pike,
in Mechanicsburg, Cumberland County, Pennsylvania.
6.
Denied.
After reasonable invest.:.gation, Defendant is
without knowledge or information sufficient to form a bel.:.ef as to
the truth or veracity of the allegations contained i~ paragraph 6
of Plaintiff's Complaint and same are denied and strict pr::>of
thereof demanded.
i.
Denied.
On the contrary, it is averred that no
protruding manhole existed on Defendants' premises on or about
November 21, 1995, as the Plaintiff alleges.
2
h. In failing to provide a parking lot th;lt ',Ias free
from unnecessarily dangerous conditions; and
i. In failing to '.'arn Plaintiff of the dangerc'Js
condition of the parking lot located at the corner
of Route 114 and Carlisle Pi~:e, in t'lechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all ti~es relevant
hereto, answering Defendants acted carefully, lu~fulll' properly
and prudently and with care under the c.:.rcums"ances. 31' ':lay of
further answer, it is averred that no prctruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Co:;-,plaint and strict proof
thereof is hereby demanded. It is further averred that ownersh.:.p,
maintenance and repair of the manhole Pla.:.ntiff alleges caused her
injury rests with individuals or entit.:.es other than Cefendants
over whom Defendants had no resp::>ns:o:~::y or righ: of control.
10.
Denied. It is denied that the :efendants were negligent
cr that their negligence was the proxi~ate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph lO are denied in that after reasonable
investigation, answering Defendants are without kn::>wledge or
5
g. In failing to properly inspec: for hazardous
conditions of the parking lot ~ocated at the ccrne~
of Route 114 and Carl~s2e ?ike, ~n ~ec!la~ic5bu~g,
Cumberland County, ?ennsy17an.:.a;
h. In failing to provide a parking lot that was free
from unnecessarily dange~o~s conditions; and
i. In failing to ~arn ?lai~~i:f 0: the da~gero~s
condition of the par%i~9 l~t loca~ed ~~ the cc=~e=
of Route 114 and Carlisle Pike. in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all ti"-es relevant
hereto, answering Defendants act~d cerefully, la~fully, properly
and prudently and with care ~~der the circ~~stances.
3y way of
further answer, it is averred that nc protrud.:.ng manhole or other
dangerous or defective condit.:.on of Defendants' premises existed as
alleged by Plaintiff in ?la.:.~t.:.ff's Compla.:.nt and strict proof
thereof is hereby demanded. It is f~rther a~erred that owners~.:.p,
maintenance and repair of the manhole ?lai~tiff a~leges caused he~
injury rests with individuals or entities othe= than 8efendancs
over whom Defendants had no responsibility or r:g~t of control.
10
allegation~ of paragr~~h 20 are den.:.cd in that after :~asona~le
"
investigat_on, answering Defendants are wit~c~: knowledge or
information sufficient to form a bel.:.ef as :0 the :r'.::h 0'- veracity
of the allegations c::>ntained in paragrap~ 2J ::>f Plaintiff's
Complaint.
2l.
Denied. It is de~ied that t~e Defe~dants were ~egl.:.gent
or that their ~egligence was the proximate result of any alle;ed
injuries Plaintiff claims to have sustaine~
~he remaining
allegations of paragraph 21 are de~ied in that ..,~ reasonE~le
investigation, answering Defendants are wit~
~~cwledge :r
information sufficient to for~ a belief as to t~
~:h or verac.:.:y
of the allegations
contained .:.n paragraph ?.
~&
--
?:ai~ti::'s
Complaint.
22.
Denied. It:s denied that the Defe~cants ~e~e ~egllge~t
or that their neglige~ce was the proximate result of a~y alle:ed
injuries Plaintiff
1 '
c_alms
to have
sustained.
7he
~ema:n:~g
allegations of paragraph 22 are denied in that after reasonable
investigation, answer.:.ng Defendants are withcut knowledge or
information sufficient to form a belief as to the truth or verac.:.ty
12
therefrom, were caused j~re::~; or prox~ffi~:cly by :he nQ~l~gence of
Defendant, generally a~d ~:=2 5pccif~cally a~ s!: [c=:h below:
a.
In allo'.:in~ ::-.0 manhole cove~ ':c r].rot!.....::::0 "bove ::1e
surface of ::",2 !.-' lot .....;;.c~-: , - r::;'~',.: or should
par..l:1g -
have know:1 :~,,~ .:.t would pose E~ ~nreasonable risk
of harrr
t.o ':':--.:::..':.i.duals
~ - ~ ~
a"--'" ; ,.
~ ...._..t__.:
'~pon
the
~re:7.:'S'~3
such as the =:3i~~iffs;
b. In hav.:.:;g a::::~a': %r:.c',.:l'2dge, '=:y vi:-tue of i:s
,.'
owners..:p,
c: ~r.e U:"'.17.2:::-%ed rr.a:1nole cove~ in t~e
parkinc;;
lc~ ::)(:ated or:
....~ ~
~.I-
pre~ises at t~e corner
of Route 11~ a:1d Carl:..sle ?ike, :.n ['!echa:-.icsburg,
Cumberland C:~ntYI Pennsylvan:.a;
c. In failir.g :c prcperly main~ain t~e ~a:1hole cover
at a s~.fe
.....0:..........
..--~.II..
on t::e pren.:.ses located at
the
corner of ~:~te l14
and C2~lisle
::J"
_ ~.<e,
in
Mechani~sb~=~, Cu~be=land Co~:;t~., ?en~sylva~ia;
d. In failing :::> properly mar:.; the nanhole cover
located on :~e premises a~ ~he corner of Route 114
and Carlisle ?ike, in ,..;echanicsburg, Cumberland
County, Pen~sylva~ic, so ~~at business invitees
were able t~ see the manhole c::>,er;
14
e. In faili:1g to proper:'y mi:l:':,:G.:'~ the "arl.Hlg lot
located at the corner of P,O',::.:' ~lt, and Carlisle
Pike,
i:1
r-lcchunicsburg,
C'.::'oerlar.d
Co'.:nty,
pennsyl ':ania;
f. In failing to use reasonable pr~jence in ~he ~are
and maintenance of the park:r.g :'ot loc~ted at the
corner of Route IH a:1d C=rlis:'e Pike, iil
Mechanicsburg, Cumber!and County, ?ennsyl~ania;
g. In failing to ?roperly i~s~e:~ for hazardo'.:s
conditi~ns of the pa~~ing lot lcca~ed at the corne=
of Route ll4 and Carl.:.sle ?:ke, .:.r. ~ec~G.~.:.csb~rg,
Cumberland County, Pe~~sylva~:e'
h. In failing to prov.:.de a parkin; :'0t that was free
from unnecessarily dar.gerous cor.~.:.tions; and
i. In failing to ~:arn Plaintiff of 'Che da:1gerous
conditio:1 of the parking lot :'oc=~ed at the corner
of Route l14 and Carlisle Pike, .:.n ~echa~i~sburg,
Cumberland County, Pennsyl\'an.:.a.
On the contrary, it is averred ~ha'C at a:'l ::.~.s relevant
hereto, answering Def!:ndants acted ~arefully, :'?'.~full:i, properly
and prudently and with care under the circumst=r.ce3.
3y way of
further answer, it is averred that no protruding manhole or other
15
39.
Plaintiff has not sus:a.:.ne~ a ser.:.::>us ~nju[y as defined
by the Pennsylvania Ko:::>r Vchic:e ~i~~~s~a: RC5p:ns~til~ty Law 175
Pa.C.S.A. ~1702 et seq).
.;0,
Plaintiff's claim rcr non-economic da~ages may be barred
because Plaintiff has elected a lireited :ort opticn as set fcrth in
the Pennsylvania Motor Vehicle Financial Res?::>ns.:.b.:.lity Law (75
Pa.C.S.A. ~1702 et seq).
n.
Plaintiff may have failed to ~iti~a:e ~er da~ages.
, ~
~G.
plaintiff has receive~ or is entitled :0 recei~e various
be:1efi ts from other insurance arrar.:;-e::-,ents, ;crogra:7.s and group
contracts
of insurance, including ~t.:.: net. :i::-.:ted to t''3ne:its
under the Pennsylvania ~otor Vehic:e Financ.:.al Respo~sibility Law
and she may not recover for the same benefits ir. this proceeding.
o.
The injuries and da~ages t~ac ?laint.:.ff clai~s to have
sustained in this motor vehicle acciden: may ~a,e pre-existed this
accident and were not caused as a result of this accident.
21
VSRIFICA'::'IC:'!
I'
,
I verify that the foregoing f2.C~S ar~ tr~e 2nd c::>r=ec~, up::>n
my personal knowledge or informatio~ 2I:d belief. This verificat.:.on
is made subject to the penalties of :8 ?a.C,S. g ~904, relating to
un~worn falsification ~::> 2uthor.:.~.:.es.
Date:1frti 2~ 1991
I//A -.
r C-ik."" ..'f..t,
'7,;
Robert :.~. Frey
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
RITA KAUFFMAN,
No. 97-1311
Plaintiff,
v.
CIVIL ACTION - LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIERSON K.
MILLER, and ROBERT M. FREY,
Defendants,
v.
DAVID KAUFFMAN,
Additional Defendant.
JURY TRIAL DEMANDED
AND NOW,
CERTIFICATE
this ~day of May,
OF SERVICE
1997, I, Robert A. Lerman, Esquire,
a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS,
Esquires, hereby certify that I have, this date, served a copy of
Complaint of Defendants to Join Additional Defendant, David Kauffman, by
United States Mail, addressed to the party or attorney of record as
follows:
Matthew S. Crosby, Esquire
HANDLER & WIENER
319 Market Street
Harrisburg, PA 17101
BY:
mlc/kazi.com.z
~BERT A. LERMAN '
Attorney for Defendants
Supreme Court 1.0. No. 07490
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
~
,
injuries and damages were caused solely and directly as a result of the negligence of Additional
Defendant, David Kauffman, in the operation of his motor vehicle in the Answer and New Matter
Defendants have filed in response to Plaintiffs Complaint (a copy of which is attached hereto
and marked as Exhibit I), and in the Complaint joining David Kauffman as an Additional
Defendant filed by Defendants (a copy of which is attached hereto and marked as Exhibit 2.
4. Admitted.
5, Admitted,
6. Admitted.
7. Admitted,
8, Admitted.
9. Admitted.
10. Denied, inasmuch as Defendants have alleged and have specifically pled that
Plaintiffs injuries and damages, if any, were caused by the operator and owner of a motor
vehicle involved in this incident, specifically, Additional Defendant, David Kauffman,
II, Denied. While Plaintiff may allege that this is a premises liability case,
Defendants believe that the facts will clearly establish that the sole and proximate cause of the
Plaintiff s alleged injuries was the negligent operation of the motor vehicle in which she was a
passenger and not as the result of any condition existing on Defendants' premises,
12, Denied. The allegations set forth in Paragraph No, 12 constitute a conclusion of
law to which no response is required,
2
.
WHEREFORE, Defendants respectfully request this Honorable Court enter the attached
Order denying Plaintiff's Preliminary Objections to Defendants' New Matter and dismissing
Plaintiff's Preliminary Objections to Defendants' New Matter.
Respectfully Submitted,
R1CKLER, LERMAN,
S & CALKINS
i
BY;: ~
!ROBERT A. LE N
Attorney for Defendants
Supreme Court J.D, No. 07490
110 South Northern Way
York, PA 17402
Telephone No, (717) 757-7602
mlclkaz;,ans.z
3
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r
IN THE COURT OF COMMON PLEAS OF CUMSERLAND COu~TY, PENNSYLVANIA
RITA KAUFFMAN,
No. 97-1311
Plaintiff
v.
CIVIL ACTION - LAW
KAZI FOODS OF PA, INC., d/b/a
KENTUCKY FRIED CHICKEN, PIER~ON K.
MILLER, and ROBERT M. FREY,
Defendants
JURY TRIAL DEMANDED
';
,
i
J\NSto1ER JU."D h"E"'W' M>\TTER
AND NOW, come the Defendants by ar.d through their
attorneys, Griffith, Strickler, Lerman, Solyrr,os & Calkins, and
Robert A, Lerman and files this Answer and New Matter in response
to Plaintiff's Complaint, and states as follows:
1.
Admitted.
2.
Admitted.
3.
Admitted.
4.
Admitted.
5.
Denied.
It is specifically denied that at all times
mentioned herein, Cefendants were in exclusive ownership,
possession, management, and control of the parking lo~ located en
the premises at the corner of Route ll4 and Carlisle Pike, in
Mechanicsburg, Cumberland CO'.::lty, Pennsylvania, on \~hich a Kentucky
Fried Chicken franchise is located. On the contrary, at all times
relevant, Defendants, Pierson K. Miller and Robert ~. Frey, were
the landlords out of possession of certain property l~=a:ed at the
corner of Route 114 and Carlisle Pike, in ~echanicsburq, C~mberland
County, Pennsylvania, on which a Kentucky Fried Chic;:en franchise
,'..J located,. and it is averred that Defendant, Kaz.:. Foods of
Pennsylvania, Inc. d/b/a Kentucky Frie= Chicken, was the tenant of
the premises located at the corner of Route 114 and Carlisle Pike,
in Mechanicsburg, Cumberland County, Pennsylvania.
6.
Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth or veracity of the allegatio:ls contained i~ paragraph 6
of Plaintiff's Complaint and same are denied and strict pr::>of
thereof demanded.
i.
Denied.
On the contrary, it is averred that no
protruding manhole existed on Defendants' premises on or about
November 21, 1995, as the Plaintiff alleges.
2
c. In failing to properly maintain the rna~hole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
d. In failing to properly mark the mar:hole cover
located on the premises at the corner of Route ll4
and Carlisle Pike, in Mec~anicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, Curr~erland County,
Pennsylvania;
f. In failing to use reasonable pruder:ce .:.r: tr.e care
and maintenance of the parking lot located at the
corner of Route 114 a:ld Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
g. In failing to properly i:lspect for hazardous
conditions of the parkir:g lot located at the corner
of Route 114 and Carlisle Pike, in Mec~anicsburg,
Cumberland County, Pennsylvania;
4
. .
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plai~tiff of the dangerous
condition of the parking lot located at the corner
of 'Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all ti~es relevant
hereto, answering Defendants acted carefully, lawfully, properly
and prudently and with care under the circumstances. Sy way of
further answer, it is averred that no protruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Co:r.?laint and strict proof
thereof is hereby demanded. It is further averred that ownership,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendants.
over whom Defendants had no respo~sibility or right of control.
10.
Denied. It is denied that the Defe~dants wer~ negligent
or that their negligence was the proxiffiate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 10 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
5
information sufficient to form a belief as .to the truth or veracity
of the allegations contained in paragraph 10 of ?laintiff's
Complaint.
11.
Denied. It is denied that the Defendants wer= negligent
or that their negligence was the proximate result of ~ny alleged
injuries Plaintiff claims to have sustained. The re~aining
allegations of paragraph 11 are denied in that after reasonable
investigation, answering Defendants are witho~t knowledge or
information sufficient to form a belief as to the truth ::>r veracity
of the allegations contained in paragraph II of ?laintiff's
Complaint.
12.
Deniea. It is denied that the Defendants wer: negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 12 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 12 of ?laintiff's
Complaint.
6
13.
Denied. It is denied that the Defendants were negligent
or that their negligence was the prox.:.mate resu:t of ~ny alleged
injuries Plaintiff claims to have sustained. ?he remaining
allegations of paragraph 13 are denied in that after reasonable
investigation, answering Defendants are witho~t knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 13 of Plaintiff's
Complaint.
14.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 14 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth ::>r veracity
of the allegations contained in paragraph l~ of ?laintiff's
Complaint.
15.
Denied.
After reasonable investigat.:.on, Defendant is
without knowledge or information sufficient to for~ a belief as to
the truth or veracity of the allegations contained in paragraph 15
7
b. In having actual kn::>~ledge, ~y ~.:.rtue of its
ownership, of the u~~arked manhole cover in the
parking lot located on the pre~ises a~ the corner
of Route 114 and Carlisle Pike, in :.:ec:-:anicsburg,
Cumberland County, Pennsylvania;
c. In failing to properly maintain the ~a~hole cover
at a safe height on the premises :ccated at the
corner of Route 1!C and Carlisle Pike, in
Mechanicsburg, Curr~erland County, Pennsylvania;
d. In failing to properly mark the ::\anhole cover
located on the pre~ises at the corn~r of Route 114
and Carlisle Pike, 1.~ Mechal'l1.Cs~;.:r;-, Currberland
County, Pennsylva~ia, so tha~ bus.:.ness invitees
were able to see the ~anhole cover;
e. In failing to proper2.y maintain t:-.e ;larking lot
located at the corner of Route ll~ and Carlisle
Pike,
in
Mechanicsburg,
Cu:':lbe=:a~d
County,
Pennsylvania;
f. In failing to use reasonable pr~dence in the care
and maintenance of the parkin~ 2.ct :ocated at the
corner of Route 114 and Carlis:'e Pike, in
Mechanicsburg, Cumberland County, Pe~~sylvania;
Q
-
g. In failing to properly inspec: for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, in ~echanicsburg,
Cumberland County, Pennsylvania;
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
1. In failing to ",am Plaintiff of the dangero'Js
condition of the parking l::>t located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all times relevant
hereto, answering Defendants acted carefully, lawfully, properly
and prudently and with care under the circumstances. By way of
further answer, it is averred that no protruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Pla:ntiff's Complaint and strict proof
thereof is hereby demanded. It is further averred that ownersh:p,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendant~
over whom Defendants had no responsibility or right of control.
10
18.
Denied. It is denied that the Defendants ~ere negligen~
or that their negligence was the proximate result 0: any alleged
injuries Plaintiff claims to have sustained. The re~aining
allegations of paragraph 18 are denied in that after reaso~able
investigation, answering Defendants are without kno~ledge 0=
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 18 of Plaintiff's
Complaint.
19.
Denied. It is denied that the Defendants were neglige~t
or that their negligence was the pr::>xirnate result 0: a~y alleged
injuries Plaintiff claims to have susta.:.ned. The remaining
allegations of paragraph 19 are denied in that after reasonable
investigation, answering Defendants are without kno~ledge or
information sufficient to form a belief as to t~e truth or veracity
of the allegations contained in paragraph 19 of Plaintiff's
Complaint.
20.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result 0: any alleged
injuries Plaintiff claims to have sustained. The remaining
11
therefrom, were caused direc::y or prox.:.ma~ely by the negligence of
Defendant, generally a~d ~ore specifically as set forth below:
a. In allo'.-:ing ::-.e manhole cover to protrude above the
surface of :~e parking lot when it k~e~ or should
have known t~at it would pose an unreasonable risk
of harm to ~~dividuals law:ully upon the pre~ises
such as the ?:aintiffs;
b. In hav~ng accual knowledge, by virtue of its
ownership, c: the unmarked manhole cover in the
parking lot :ocated on the pre~ises at t~e corner
of Route 1l~ and Carlisle Pike, in Mecha~icsburg,
Cumberland County, Pennsylvan.:.a;
c. In failing to properly maintain the manhole cover
at a safe height on the prem.:.ses located at the
corner of ,,::>ute 114 and Carlisle Pike, in
Mechani~sburg, Cumberland County, Pennsylvania;
d. In failing :0 properly mark the manhole cover
located o~ t~e premises at the corner of Route 114
and Carlisle Pike, in Nechanicsburg, Cu:nberlana
County, Pennsylvania, so that business invitees
were able tc see the manhole cover;
14
e. In failing to properly ma.:.r:ta.:.~ the parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, C~~berland County,
Pennsyl';ania;
f. In failing to use reasonable prudence in the care
and maintenance of the parking ~Ot located at the
corner of Route 1H and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
g. In failing to properly ins?ec~ for hazardous
conditions of the parking lot loca~ed at the corner
of Route 114 and Carlisle ?ike, in Mecha~icsburg,
Cumberland County, Pennsylvania;
h. In failing to provide a parking lot that was free
from unnecessarily dangerous co~=itions; and
i. In' failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, .:.n Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all ti~:s relevant
hereto, answering Defendants acted carefully, laNfully, properly
and prudently and with care under the circumsta~ces. Ey way of
further answer, it is averred that no protruding manhole or other
15
dangerous or defective condition of De:e~da~ts' ?remises existed as
alleged by Plaintiff in Plaintiff' s CO::l?lain~ and strict proof
thereof is hereby demanded, It is further averred that cw~ership,
maintenance and reoair of the manhole ?laintiff alleces caused her
. .
injury rests with individuals or entities other than Defendants
over whom Defendants had no responsibility or right of control.
26.
Denied. It is denied that the Defe~dants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The re::laining
allegations of paragraph 26 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 26 of Plaintiff's
Complaint.
27.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate res~:t of a~y alleged
injuries Plaintiff claims to have sustaineci. Tr.e re::laining
allegations of paragraph 27 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
16
~.; MATTEP.
32.
The answers as se: forth in Paragraphs 1 :hrough 31 of
Defendants' Answer and New ~Ia:ter are incorporated herein ~y
reference as though fully set forth a: length.
33.
Plaintiff's Complaint fails to sta:e a cause of acti~~
upon which any relief can be granted.
34.
Plaintiff's Complain: may be barred by applicable
statutes of limitation.
35.
Plaintiff's injuries and da~ag~s were caused solely and
directly as a result of the negligence, carelessness a~d
recklessness of David Kauffman, which r.eglig~nce, carelessness a~d
recklessness consisted of the following:
a. Operating his vehicle at an excessive rate .:Jf
speed;
b. Operating his vehicle at a speed too grea: for the
conditions existing;
C. Operating his vehicle at an excessive speed in a
private parking lot;
19
d. Failing to keep a prope= look-out;
e. Failing to keep his vel:icle unde= proper control;
f. Failing to exe=cise ca=e for the safety of
passengers in his venicle;
g. If it is found that the manhole st=uck was
protruding above the surface of the pa=king lot,
which conclusion is denied, David Kauffman failed
to observe such conC:ition and/or e::countered it
voluntarily and intentionally, causing the inju=ies
and damages Plaintiff alleges.
36.
At the time of the alleged incident, ?~aintif= and her
husband were trespass.:.ng upon the property of the Defe~dants.
37.
Plaintiff's injuries and da~ages, if any, were caused as
a result of the acts or the o~issions 0= i~div.:.d~als or enti~ies
other than Defendants, over whom Defendants had no respc~sibility
or right of control.
38.
Plaintiff's injuries and damages, if any, may have been
caused by a malfunction of the airbags or airbag release ~echanism
in the motor vehicle in which she was a passenge=.
20
39.
Plaintiff has not sustained a serious injury as defined
by the Pennsylvania Motor Vehicle :ina~~.:.al Respons.:.cility Law (75
Pa.C.S.A. 51702 et seq).
40.
Plaintiff's claim for non-economic damages may be barred
because Plaintiff has elected a limited tort option as set forth in
the Pennsylvania Motor Vehicle Financial Responsibility Law (75
Pa.C.S.A. 51702 et seq).
n.
Plaintiff may have failed to mitigate her da~ages.
42.
Plaintiff has received or is entitled to receive various
benefits from other insurance arrar:ge::;ents, progra::\s and group
contracts of insurance, including but not limited to benefits
under the Pennsylvania Motor Vehicle :inancial Responsibility Law
and she may not recover for the same ber:efits in this proceeding.
43.
The injuries and damages that Plaintiff claims to have
sustained in this motor vehicle accident may ha,e pre-existed this
accident and were not caused as a result of this accident.
21
VSRIF!CA:'IO~I
I verify that the foregoing facts are true and correct, upon
my personal knowledge or information and belief. This verificatio~
is made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to
unsworn falsification to authorities.
Date: ~yj 2~ I Q91
f/4"kvt- h"
Robert M. Frey
~;
,
VERIFICATION
I verify that the foregoing facts are true a~d correct, upon
my personal knowledge or informatio~ anc belie:. This verification
is made subject to the penalties of 18 Pa.C.S. 5 ~904,
unsworn falsification to authorities.
rela~'"~ to
""-1;'-=
Date: !lpvJ
29, /9v1
.
\J?
."
'._ I
. I ..... .
/7' />~f.4-0
Miller
Pierson K.
3. In her Complaint, Plaintiff alleges that she sustained
certain injuries and damages as a result of the carelessness,
recklessness and negligent conduct of the Defendants, which
carelessness, recklessness and negligence on the part of the
Defendants is specifically denied.
4. If Plaintiff is entitled to recover for her injuries and
damages, which is specifically denied, Additional Defendant, David
Kauffman is solely, exclusively, directly and proximately
responsible to Plaintiff, Rita Kauffman, for all of the injuries
and damages alleged as a result of the carelessness, negligence and
recklessness of David Kauffman as specifically set forth in
Defendants' Answer and New Matter to Plaintiff's Complaint attached
as Exhibit "B" and incorporated herein by reference.
5. The negligence, carelessness and recklessness of David
Kauffman includes, inter alia:
a. Operating his vehicle at an excessive rate of
speed;
b. Operating his vehicle at a speed too great for the
conditions existing;
c. Operating his vehicle at an excessive speed in a
private parking lot;
d. Failing to keep a proper look-out;
e. Failing to keep his vehicle under proper control;
2
f. Failing to exercise care for the safety of
passengers in his vehicle;
g. If it is found that the manhole struck was
protruding above the surface of the parking lot,
which conclusion is denied, David Kauffman failed
to observe such condition and/or encountered it
voluntarily and intentionally, causing the injuries
and damages Plaintiff alleges.
6. Alternatively, in the event David Kauffman is not found
to be solely, exclusively and directly liable to the Plaintiff,
Additional Defendant, David Kauffman, is jointly and or severally
liable with Defendants to Plaintiff and/or David Kauffman is liable
over to Defendants for contribution and indemnity, the existence of
any liability on the part of the Defendants is strictly denied.
WHEREFORE, Defendants, Kazi Foods of Pennsylvania, Inc., d/b/a
Kentucky Fried Chicken, Pierson K. Miller, and Robert M. Frey,
demand that any judgment entered in favor of the Plaintiff be
entered solely against Additional Defendant, David Kauffman, or
alternatively, Defendants, Kazi Foods of Pennsylvania, Inc., d/b/a
Kentucky Fried Chicken, Pierson K. Miller, and Robert M. Frey,
demand that in the event judgment is entered against them, or any
one of them, that said judgment be entered jointly and or severally
against them together with Additional Defendant, David Kauffman, or
the Additional Defendant, David Kauffman, be held liable over to
Defendants for contribution or indemnity.
3
5. At all times mentioned herein, Defendants were in
exclusive ownership, possession, management, and control of the
parking lot located on the premises at the corner of Route 114 and
Carlisle Pike, in Mechanicsburg, Cumberland County, Pennsy~vania,
on which a Kentucky Fried Chicken franchise is located,
6. On or about November 21, 1995, Plaintiff, was a passenger
in a vehicle operated by her husband as they were attempting to
travel across the aforementioned parking lot at the corner of Route
114 and Carlisle Pike, in Mechanicsburg, Cumberland County,
Pennsylvania.
7. Suddenly and wi thout warning, the underside of the
aforementioned vehicle struck a protruding manhole cover causing
the air bags to deploy and injuring Plaintiff, Rita Kauffman.
COUNT I
RITA KAUFFMAN v. KAZI FOODS OF PA. INC.
8. Plainti ff incorporates and makes part of this count
paragraphs 1 through 7, as if fully set forth herein.
9. The occurrence of the aforesaid incident and the injuries
to Plaintiff resulting therefrom, were caused directly and
proximately by the negligence of Defendant, generally and more
specifically as set forth below:
a. In allowing the manhole cover to protrude above the
surface of the parking lot when it knew or should
have known that it would poce an unreasonable risk
2
RECEIVED
MAR 1 1 1997
~ARl11seuRG &;
CI..",.~ O"lCt
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover. in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, pennsyl vania, so that business invi tees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumberland
County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
3
RECEIVED
HAR 1 f 1997
HAMlSSURG SR. CLAIlIS OFFICE
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
10. As a direct and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
11. As a direct and proximate result of the negligence of
Defendant, Plaintiff has undergone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her' great physical,
emotional, and financial detriment and loss.
12. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
4
RECEIVED
~IAR 1 1 1997
tt.lRIiJSBURG B~ CLAIMS OFFICE
have known that it would pose an unreasonable risk
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue 9f its
ownership, of the unmarked manhole cover in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, cumberland County, Pennsylvania.
d. In failing to properly marl< the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumberland
County,
Pennsylvania.
f. In failing to use reasonable prudence in the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania:
6
RE:~EIVED
~lAR 1 1 1997
HAI\lliSEC~u ep.. ClAIIIS OFFICE
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h, In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
18. As a direct and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will iJ1 the
future suffer pain and agony, to her great detriment and loss.
19. As a direct and proximate result of the negligence of
Defendant, P.lail'ltiff has undergone g:-eat physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her'great physical,
emotional, and financial detriment and loss.
20. As a direct and proximate result of the negligence of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
7
RECEIVED
MAR 1 1 1997
HAJlRlSSlIRG SR. ClAlllS OFFICE
of harm to individuals lawfully upon the premises
such as the Plaintiff.
b. In having actual knowledge, by virtue of its
ownership, of the unmarked manhole cover ,in the
parking lot located on the premises at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
c. In failing to properly maintain the manhole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In fa; ling to properly maintain the parking lot
located at the corner of Route 114 and Carlisle
Pike,
in
Mechanicsburg,
Cumb'erland
County,
Pennsylvania.
f. In failing to use reasonable prudence in the ~are
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania.
RE~cIVED
9
MAR 1 1 1997
HARRISBURG BR. ClAIlIS OFFICE
g. In failing to properly inspect for hazardous
conditions the parking lot located at the corner of
Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
26. As a direct and proximate result of the foregoing
negligence of Defendant, Plaintiff has sustained severe injuries,
including but not limited to injuries to her cervical spine. As a
result thereof, Plaintiff has suffered and probably will in the
future suffer pain and agony, to her great detriment and loss.
27. As a direct and proximate result of the negligence of
Def~ndant, Plaintiff has und~rgone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future to her' great physical,
emotional, and financial detriment and loss.
28, As a direct and proximate result of the negligenc.e of
Defendant, Plaintiff has been and probably will in the future be
hindered from attending to her usual occupation and daily
activities and duties to her great detriment, loss, humiliation,
and embarrassment.
10
': ~.. ':"\'
~lAR 1 1 1997
.....M....."'\.<\U Jl; \'\AIM.,j ~FlCt
29. As a result of the negligence of Defendant, Plaintiff has
and probably will in the future suffer a loss of life's pleasures,
and a claim is made therefore.
30. As a direct and proximate result of the neg~igence of
Defendant, Plaintiff has been compelled, in order to affect a cure
for the aforesaid injuries, to expend m~mey for medicine and
medical attention, and will be required to expend money for the
same purposes in the future, to her great detriment and loss.
31. Plaintiff believes and therefore avers that her injuries
are permanent in nature.
WHEREFORE, Plaintiff, Rita Kauffman, seeks damages from
Defendant, Robert M. Frey, in an amount in excess of Thirty-Five
Thousand Dollars ($35,000.00) and demands trial by jury.
Date:
3-/O-C]7
submitted,
Ma e S. Crosby,
torney I.D. 693
319 Market Stree
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorney for Plain~iff
re
11
-.:: "''=\VED
~.. .' .
MAR 1 1 1997
."'n~aVRGaH. ClAIMSOffn
possession, management, and control of the parking lo~ located on
the premises at the corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland Co~~ty, Pennsylvania, on which a Kentucky
Fried Chicken franchise is located. On the contrary, at all times
relevant, Defendants, Pierson K. Miller and Robert ~. F:ey, were
the landlords out of possession of certain property l~=a~ed at the
corner of Route 114 and Carlisle pike, in Mechanicsburq, C~mberland
County, Pennsylvania, on which a Kentucky Fried Chic;:en franchise
:'.J located, and it is averred that Defendant, Kazi Foods of
Pennsylvania, Inc. d/b/a Kentucky Fried Chicken, was the tenant of
the premises located at the corner of Route ll4 and Carlisle Pike,
in Mechanicsburg, Cumberland County, Pennsylvania.
6.
Denied.
After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth or veracity of the allegati~~s contained ir. paragraph 6
of Plaintiff's Complaint and same are denied and strict pr::>of
thereof demanded.
i.
Denied.
On the contrary, it is averred that no
protruding manhole existed on Defendants' premises on or about
November 21, 1995, as the Plaintiff alleges.
2
c. In failing to properly maintain the na~hole cover
at a safe height on the premises located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
d. In failing to properly mark the manhole cover
located on the premises at the corner of Route 114
and Carlisle pike, in Mec~anicsburg, Cumberland
County, Pennsylvania, so that business invitees
were able to see the manhole cover;
e. In failing to properly maintain the parking lot
located at the corner of Route 114 a~d Carlisle
Pike, in Mechanicsburg, Cumberland County,
Pennsylvania;
f. In failing to use reasonable prudence .:.n the care
and maintenance of the parking lot located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
g. In failing to properly inspect for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mec~anicsburg,
Cumberland County, Pennsylvania;
4
. .
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions: and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of ,Route 114 and Carlisle Pike, in Mec~anicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all tirr.es relevant
hereto, answerin~ Defendants acted carefully, lawfully, properly
and prudently and with care under the circumstances. By way of
further answer, it is averred that no protruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Co:nplaint and strict proof
thereof is hereby de:nanded. It is further averred that ownership,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendants.
over whom Defendants had no responsibility or right of control.
10.
Denied. It is denied that the Defendants wer~ negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 10 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
5
information sufficient to form a belief as ~o the truth or veracity
of the allegations contained in paragraph 10 of ?laintiff's
Complaint.
11.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The re:naining
allegations of paragraph 11 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 11 of ?laintiff's
Complaint.
12.
Denieci. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The re~aining
allegations of paragraph 12 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 12 of ?laintiff's
Complaint.
6
13.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proxi:na:e resu:t of any alleged
injuries Plaintiff claims to have sustained. 7he remaining
allegations of paragraph 13 are denied in that after reasonable
investigation, answering Defendants are witho~t knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 13 of Plaintiff's
Complaint.
14.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 14 are denied in that after reasonable
investigation, answering Defendants are witho~t knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph l~ of ?laintiff's
Complaint.
15.
Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to fcr:n a belief as to
the truth or veracity of the allegations contained in paragraph lS
7
.
b. In having actual kno.ledge, by ~irtue of its
ownership, of the unr:1arked manhole cO'ler in the
parking lot located on the premises a~ the corner
of Route 114 and Carlisle Pike, in ~echanicsburg,
Cumberland County, Pennsylvania;
c. In failing to properly maintain the ~anhole cover
at a safe height on the premises :ocated at the
corner of Routel::.~ and Carlisle Pike, in
Mechanicsburg, Cu~~erland County, Pennsylvania;
d. In failing to properly mark the ;:!anhole cover
located on the premises at the corner of Route 114
and Carlisle Pike, in Mechanics:O;.:r;, Cumberland
County, Pennsylvania, so that busi,-e~s invitees
were able to see the ~anhole cover;
e. In failing to properly maintain t::e parking lot
located at the corner of Route 114 and Carlisle
Pike, in Mechanicsburg, Cu~e=:and County,
Pennsylvania;
f, In failing to use reasonable prudence in the care
and maintenance of the parking :ct located at the
corner of Route 114 and Carlisle Pike, in
Mechanicsburg, Cumberland County, Pennsylvania;
9
g. In failing to properly inspect for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania;
h. In failing to provide a parking lot that was free
from unnecessarily dangerous conditions; and
i. In failing to warn Plaintiff of the dangerous
condition of the parking lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all times relevant
hereto, answering Defendants acted carefully, lawfully, properly
and prudently and with care under the circ..:mstances. By way of
further answer, it is averred that no protruding manhole or other
dangerous or defective condition of Defendants' premises existed as
alleged by Plaintiff in Plaintiff's Complaint and strict proof
thereof is hereby demanded. It is further averred that ownership,
maintenance and repair of the manhole Plaintiff alleges caused her
injury rests with individuals or entities other than Defendant's
over whom Defendants had no responsibility or right of control.
10
18.
Denied. It is denied that the Defendants ~ere negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The re~aining
allegations of paragraph 18 are denied in that after reasonable
investigation, answering Defendants are without kno,:ledge cr
information sufficient to form a belief as to t~e tru~h or veracity
of the allegations contained in paragraph 18 of Plaintiff's
Complaint.
19.
Denied. It is denied ~hat the Defendants were neglige~t
or that their negligence was the proximate result of a~y alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 19 are denied in that after reasonable
investigation, answering Defendants are without kno.ledge or
information sufficient to form a belief as to t~e truth or veracity
of the allegations contained in paragraph 19 of Plaintiff's
Complaint.
20.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
11
. .
allegation~ of paragra?h 20 are denied in that after reasona~le
investigat~on, answering Defendants are witho~t knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 20 of Plaintiff's
Complaint.
21.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The remaining
allegations of paragraph 21 are denied in tha~~~~ar reasona~le
investigation, answering Defendants are wit:.': '::'.' :.o:no\.;ledge or
information sufficient to for~ a belief as to t~,_ ,~~~h or veracity
of the allegations contained in paragraph 2: of Plaintiff's
Complaint.
22.
Denied. It is denied that the Defendants ~ere negligent
or that their negligence was the proximate result of any alle;ed
injuries Plaintiff claims to have sustained. ?he remaining
allegations of paragraph 22 are denied in that after reasonabie
investigation, answering Defendants are witho~t knowledge or
information sufficient to form a belief as to the truth or veracity
12
e, In failing to properly maintain the parking lot
located at the corner of P,oute 114 and Carlisle
Pike, in Mechanicsburg, C~~berland County,
Pennsylvania;
f. In failing to use reasonable prudence in the care
and maintenance of the parkirog lot located at the
corner of Route 1H and Carlisle Pike, in
Mechanicsburg, Cumberland County, Penrosylvania;
g, In failing to properly ins?ect for hazardous
conditions of the parking lot located at the corner
of Route 114 and Carlisle Pike, iro Meche~icsburg,
Cumberland County, Pennsylvania;
h. In failing to provide a parkin; lot that was free
from unnecessarily dangerous co,-=itioros; and
i. In' failing to warn Plaintiff of the dangerous
condition of the pa=king lot located at the corner
of Route 114 and Carlisle Pike, in Mechanicsburg,
Cumberland County, Pennsylvania.
On the contrary, it is averred that at all ti~~s relevant
hereto, answering Defendants acted carefully, laxfully, properly
and prudently and with care under the circumstances. By way of
further answer, it is averred that no protruding manhole or other
15
dangerous or defective condition of Defenda~ts' premises existed as
alleged by Plaintiff in Plaintiff's Co::\plain;: and strict proof
thereof is hereby demanded. It is further averred that ow~ership,
maintenance and repair of the manhole ?laintiff alleges ca~sed her
injury rests with individuals or entities other than Defendants
over whom Defendants had no responsibility or right of control.
26.
Denied. It is denied that the Defendants were negligent
or that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustained. The re::\aining
allegations of paragraph 26 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to foroM a belief as to the truth or veracity
of the allegations contained in paragraph 26 of Plaintiff's
Complaint.
27.
Denied. It is denied that the Defen~a~ts were negligent
or that their negligence was the proximate res~:t of a~y alleged
injuries Plaintiff claims to have sustaine~. The re::\aini~g
allegations of paragraph 27 are denied in that after reasonable
investigation, answering Defendants are without knowledge or
information sufficient to form a belief as to the truth or veracity
16
30.
Denied, It is denied that the Defendants were negligent
or. that their negligence was the proximate result of any alleged
injuries Plaintiff claims to have sustai~ei. The remaining
allegations of paragraph 30 are denied in that after reasonable
investigation, answering Defendants are wit~out knowledge or
information sufficient to form a belief as to the truth or veracity
of the allegations contained in paragraph 30 of Plaintiff's
Complaint.
31.
Denied.
After reasonable investiqRt!~'1, Defendant is
without knowledge or information sufficient to form a belief as to
the truth or veracity of the allegations contained in paragraph 31
of Plaintiff's Complaint and same are denisd and strict proof
thereof demanded.
WHEREFORE, the Defendant, Rober~ ~. Frey, demands
judgment in its favor and against the Pla:'!1tiff together with
interest and costs of suit.
18
N~~ MATTEP.
32.
The answers as set forth in Paragraphs 1 thro~gh 31 of
Defendants' Answer and New Matter are incorporated herein by
reference as though fully set forth at length.
33.
Plaintiff's Complaint fails to state a cause of actio~
upon which any relief can be granted.
34.
Plaintiff's Complaint may be barred by applicable
statutes of limitation.
35.
Plaintiff's injuries a~d da~ages ~ere ca~sed solely a~d
directly as a result of the negligence, carelessness and
recklessness of David Kauffma~, which r.egligence, carelessness a~d
recklessness consisted of the following:
a. Operatir.g his vehicle at an excessive rate ,:;f
speed;
b. Operating his vehicle at a speed too great for the
conditions existing;
C. Operating his vehicle at an excessive speed in a
private parking lot;
19
d, Failing to keep a proper look-out;
e, Failing to keep his vehicle under proper control;
f. Failing to exercise care for the safety of
passengers in his vehicle;
g. If it is found that the manhole struck was
protruding above the surface of the parking lot,
which conclusion is denied, David Kauffman failed
to observe such condition and/or encountered it
voluntarily and intentionally, causing the injuries
and damages Plaintiff alleges.
36.
At the time of the alleged incident, ?~aintiff and her
husband were trespassing upon the property of the Defe~dants.
37.
Plaintiff's injuries and damages, if any, were caused as
a result of the acts or the omissions of i~di,id~als or entities
other than Defendants, over whom Defendants had no responsibility
or right of control.
38.
Plaintiff's injuries and damages, if any, may ~ave been
caused by a malfunction of the airoags or airbag release ~echanism
in the motor vehicle in which she was a passenger.
20
39.
Plaintiff has not sustained a s~rious injury as defined
by the Pennsylvania Motor Vehicle :inan~ial Respons:bility Law (75
Pa.C.S.A. S1702 et seq).
40.
Plaintiff's claim for non-economic damages may be barred
because Plaintiff has elected a limited tort option as set forth in
the Pennsylvania Motor Vehicle Financial Responsibility Law (75
Pa.C.S.A. S1702 et seq).
u.
Plaintiff may have failed to mitigate her da~ages.
42.
Plaintiff has received or is entitled to receive various
be:1efits from other insurance arrange::lents, progra::\s and group
contracts of insurance, including but not limited to benefits
under the Pennsylvania Motor Vehicle :inancial Responsibility Law
and she may not recover for the same be~efits in this proceeding.
43.
The injuries and damages that Plaintiff clai~s to have
sustained in this motor vehicle accident may ha,e pre-existed this
accident and were not caused as a result of this accident.
21