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HomeMy WebLinkAbout97-02054 ~ - I'l J '- ~ ~ II' .:s ~ \I) \ n" , "''''J - . - ':) .~ I I ')-- I '..t) I C i :1 ~, . ~ CERTIFICATE OF SERVICE I. Carol A, Landis, a paralegal for the law firm Thomas, Thomas & Hafer, hereby state that a Irue and correct copy of the foregoing document was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Bv First Class U,S, Mail: Luther E, Milspaw, Jr" Esquire MILSPAW & BESHORE 130 State St" P,O, Box 946 Harrisburg, PA 1710B THOMAS, THOMAS & HAFER 1 ' .../ (f,..,d{l,J;iylJldl.-~ Carol A, Landis Dated: '5'/'"? Ie; 7 ',. Cl ~'[.~ .;:: ~~ .: ~ O' , Lll: <-0\. ..-; ,- " " fC ;. " ,. l'_"' ~ ~ O~. ~ ;") j , ; [,. :'j-I 11'. ... -.1l' :': ".'- 1..:: i ... ) lI_ t- e) 0 0' ~. Cl ,. " -" '.- ,:" lUcn, 6\ ) .'- 0: .-',' [" l.,o. ".j: ,-" :.i ()~ , :1') C~. I. ) ~,I, ,. u: .' " 1 ,-- u~ c- o ~. ~) THOMAS, THOMAS & HAFER Jeffrey B, Rellls, E.qulre I,D, Number: 19616 305 North Front Street P,O, Bo. 999 Harrl.burg, PA 17108.Q999 (71 n 255-7639 Attorney for De/endant. ROBERT J, SZUSTOWICZ and DOROTHY M, SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AOION - LAW v, No, 97-2054 Civil MECHANICSBURG G, F, INVESTORS CO" INC. AND G,F, DEVELOPMENT, INC., tJdlb/a WANDA'S DECK AND BEACH CLUB alkJa WANDA'S NIGHT CLUB Defendants v. DAVID DUHOVIS, RUSTYN ALLAN HOlP, and JOHN W, FOLEY, JR" Additional Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance for Defendants in the above-captioned case, THOMAS, THOMAS & HAFER I <~Orlf-t~ (_Jeff ey B, Rellig, Esquir t, ,Number: 19616 ~05 North Front Street P,O, Box 999 Harrisburg, PA 17101 (717 255-7639 / Dated: ';-/d/':' 1 CERTIFICATE OF SERVICE I. Carol A. Landis, a paralegal for the law firm Thomas, Thomas & Hafer, hereby state r.:- that a true and correct copy of the foregoing document was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Bv First Class U,S. Mail: Luther E, Milspaw, Jr" Esquire MILSPAW & BESHORE 130 State St., P,O, Box 946 Harrisburg, PA 17108 THOMAS, THOMAS & HAFER (1a~( (~/ C( '. ~;" ((, ~ Carol A. Landis Dated: 5' /1 L{j'l) ,. l(l ~ i~; -- j;* r-_~ - .~ , ' Ill: ( J; : ,~ > t ~: ~ \',- I (JI, " , ' ,::) '. C.' - \," ...1 '; ,- 'J ,.~ . .... 1, ,,'.. I' I- ) C. cr i...) '. PRAECIPE FOR LISTING CASE FOR ARGUMENT c. ( , .':> C) -.J ., ".. "J ,N '\ , \.. I J!.j <:--.> .;~\ ~.....~ ! . ~l . .~, I . :!,-') (.J i.',rn '.n ;;::! :q ''''' ..... (Must be typewritten and submitted in .,.~, rn' duplicat:'e)' ~" ..~ . TO THE PROTHONOTARY OF CUMBERLAND COUNTY: t.~;.- . OJ: , .. t"-I' .....,. Please list the within matter for the next Argument Court:'" CAPTION OF CASE: (entire caption must be stated in full) ROBERT J. SZUSTOWICZ and DOROTHY M. SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ, (Plaintiffsl vs. MECHANICSBURG G.F. INVESTORS CO., INC., and G.F. DEVELOPMENT, INC., t/d/b/a WANDA'S DECK AND BEACH CLUB a/k/a WANDA'S NIGHT CLUB, (Defendants) No. 97-2054 Civil 1921... 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc,): Preliminary Objections of Defendants to Plaintiffs' Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: Luther E. Milspaw, Jr., Esquire Address:130 State Street, PO Box 946, Harrisburg, PA 17108 (b) for defendant: Jeffrey B. Rettig, Esquire Address: 305 N. Front St., 6th Fl., Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case a been listed for argument. 4. Argument Court Date: Dated: May 6, 1997 ,,_, I " J ()j4tn~, Attorney for 9a endants L./ \' I.:: I,;. ," (.\:;! "lI- d , j'., .:1"'1 j' I' ::::,"!j\,'I./'.1.i"!/ liF j s!,~L .(:.'....\fjl/~ (! 11li:;"I' 11/'" 1~:U~lt~Y:~Lt\!;r; " 'II' i"!Jio,'[\ i'\:_lfll':hT J ;. L~_,)~ '/:' t1~JLr:\n t, :l)~/.r~E~~ F j ::'.'1':"" 'h .__.~--- --, I" 1'1 [("llt\FI. l\Ar~f\: '~J': t,. 11 :"~-r'l'.'" ',hl-':' 11 . .,'.... lr~II'.r.1.1 /11111 r-r.1Uill'r'. f"-'/I,l.:'r': "',d:: J. ....h. 1 ri ,1 : ~ 1,1 ! '..' ,~, ~ rj "<':'_ 'J.i .11. n'} t.:, j..... ai' :,"j, t, h,~ w 1 to h ~ r; (_'~~!L~AL~Ll__ .....-).: 'i_ ,- V',-",j u l' I~' fl i'if:1."Jj/d;!I~:.;[l.'-'E!', ri f: ~~:'''t::-"!'"!~,,," ',I :U;'- 1.,: 01, , . :- j r. ~ ,r, , ,,::, t -11.J"~~'.~~2 ili III ; '. . ~ : . " I, h.~ _".J - 1 , , ;.1 , ",:,'il I 1 I , ,., !.;1 I :-;!- ,: I' , i:t " 1\,lJ tl i"ll ('I:!dll! ,!q:rJ~, h\ I - ,', ',,',. '.'Ui'iD:-.h1 :\;t[' I,' ,'I '~l . ','. r, : ,:- ".! '! ,1 : I :. '~l . : I I! i r ~ r :- I ' i '.' -\:, ~ ; t-. ~ i 1_;;' , ' jll\. ': 1"'[- ';:; I<~; 11.j-.;I"!' .) I ,;:.- :'"1.'1.j 'I~ ;'_':-::.~t.",j ,:,~,~';\' 1_,1 ~_ h ,_~, i"_':1, ;.!\ , " tl,~].,tL.;" ""lt~: :JUrI;:,': ::J r 1 :~ 'Jt . tj.! ;:: ,J 111,< t l rro, J 1 r-;::c' ." ;-~ :..' ! , ~ " ! ~ . . 'f.I';.:lt ,:; t. ~l ,_: r ~, '::' ~ . . 1:1:' ':: ':-0:'::" r'l-,;-l: '0 t. 1 rl:l ::.:, r ': : (";- i. .:. :' 1 r.~ ;) '.' ; , :-. '.1 r . _~ ~.i .:' : - co .:' :, ., ,-..../'.,,~.p /~~ i~- >>~<:1~ ,; I 1 ,'-i, <~ .) } Ul~; :j('; . .. ~ - ,_ ;,; ].r,' ,,' I I I,.: ",11. .'/7 -#~, 'I"i' ':' ;:.~--:-Tl-r: ! L ,\ '.~, . . , r- f' ~. 1 'J7 .,'1,' , , ..... ;1) <;7 " Or-.J , j'j'-- C. ~,Jr); _. ,I . Office of the Sheriff Mary Jane Snyder Houl E'lloto Dopuly Ralph G. McAllister Chlof Doputy Michael W. Rinehart A511IGlnnt Chl.1 Dopuly William T, Tully Solicitor Dauphin County t-fnrri6burg, Ponn(;ylllllnla 17101 (717) 255.20BO J. R. Lotwick Sheriff COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SHERIFF'S RETURN No. 1001-T - - -97 OTHER COUNTY NO. 97-2054 AND NOWl May 22, 1997 at 6:23PM served the within WRIT OF SUMMONS TO ADDITIONAL DEFT. upon :JUHOVIS DAVID by personally handing to DUHOVIS DAVID 1 true attested copy( ies) of the or iginal WRIT OF SUMMONS TO ADDITIONAL DEFT. and making known to him/her the contents thereof at D.C. ADULT PROBATION WORK RELEASE PROG. 917 GIBSON BLVD. STEELTON, PA 00000-0000 I , Sworn and Bubscribed to before, me this 27TH day'of MAY, 1997 So Ans~ EPUTY SHERIFF '. j PROTHONOTARY Sheriff's Costs: $31.50 PD' 05/19/97 RCPT NO 095012 ET/DC SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1~91-02054 P CllMMlJNW~:AI.TH OF PENNSYLVANIA: CIJUNTY lJF CUMH~:R1.AND ?~IJSJQnC;Um~~flT J ET AI. _ H,JlJollHl!LKUneu _, Sheriff, vho being duly svorn according and inquiry for the vithin VS. M~~G_HANJ.s.HU_m,L!LLLNVI':STIJRS ClJ to lav, says, that he made a diligent search namC'd dC'fendant, to vi t: IIIJLP RUSTYN ALLAN but vas unablQ to locate __ lIim in hin bai livick. lie t.herefore dC'putized the nheriff of DAUPlI (1'/ to serve the vithin C1mpl,_AItlT__ h_____h__., _ County, Pennsylvania. . . On June 2nd. 1 ~97 this office vas in receipt of DAUPHIN County, Pennsylvania. thC' attached return from Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 2.00 So ansvers: ;- /~/ ) /'. -- _---:~..,/ J..._~._-... _4 -;~? HI 'l'homas KIJ.ne, , ...-:::-- /. ' /-"-' ~ SherJ.11 68.00 THOMAS, THOMAS AND HAFER 00/00/0000 Svorn and subscribed to before me this __ ':!-___ day of QtA.,.........._ _ _._ __ . 19 _ _'l.:Z_ A. D. ._n___~.}~o~o~'~~-" Office of the Sheriff Mary Jane Snycler nonl El1lolo Dopuly Ralph G. McAllister Chl!:.l Of/put V Michael W, Rinehart Asnistunl Chlof De;puty William T, Tully Solicilor Dauphin Counly Hnoisburg, Ponnr.ylvunii117101 (117) 2~5'2000 J. R. Lotwick Sheriff COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SHERIFF'S RETURN No. 1001-T - - -97 OTHER COUNTY NO. 97-2054 AND NOW, May 22, 1997 at 6123PM served the within WRIT OF SUMMONS TO ADDITIONAL DEFT. upon HOLP RUSTYN A. by personally handing to HOLP RUSTYN A. 1 true attested copy(iesj of the original WRIT OF SUMMONS TO ADDITIONAL DEFT. and making known to him/her the contents thereof at D.C. ADULT PROBATION WORK RELEASE PROG. 917 GIBSON BLVD. STEELTON, PA 00000-0000 Sworn and Bubscribed to before me this 27THT+jCf MAY, 1997 0t[D/l1nl.) AI '. I (.:..-. 'f'()/evU.<J PROTHONOTARY S~Af~ ~er . ~--;YOunty, , ~Z:1I EPUTY SHERIFF Pa. Sheriff's COStSI $31.50 PO 05/19/97 RCPT NO 095012 BT/De ROBERT J. S2USTOWIC2 and DOROTHY H. S2USTOWIC2, Administrators of the Estate of DEBORAH A. S2USTOWIC2 Plaintiffs : : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . . : . . : v. : : MECHANICS BURG G.P INVESTORS : CO., INC. and G.F DEVELOPMENT,: INC.,t/d/b/a WANDA'S DECK AND : BEACH CLUB a/k/a WANDA'S : NIGHT CLUB, : CIVIL ACTION - LAW NO. 17- ':X()]~- (r ' , A,Ah...-L JURY TRIAL DEMANDED Defendants . . NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action with in twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a jUdgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. ,. ~ , YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-753 H Date: April 17, 1997 BY: Lu he E. Milspaw, ., Esquire Attorney I.D. No. 226 130 State Street P.O. Box 946 Harrisburg, PA 17108 (717) 236-0781 Attorneys for Plaintiffs 5. Defendants Mechanicsburg G. F. Investors company, Inc. and G.F. Development, Inc. own, operate, trade, and do business as Wanda's Deck and Beach Club a/k/a Wanda's Night Club, also located Cumberland County, at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. 6. Defendant Wanda's Deck and Beach Club a/k/a Wanda's Night Club ("Wanda's") is a business establishment licensed to serve alcoholic and intoxicating beverages pursuant to liquor control license number H-5017. The aforesaid liquor license was issued to Defendant Mechanicsburg G.F. Investors company, Inc. 7. All of the facts and occurrences hereinafter related took place on or about the late evening hours of June 10, 1995 and the early morning hours of June 11, 1995. 8. On June 10, 1995, at approximately 10:00 p.m., Deborah A. Szustowicz accompanied several individuals including Rustyn Allan Holp, David Duhovis, steven Miller, and Dana R. Tozer to Defendant Wanda's and the Holiday Inn in Mechanicsburg, Cumberland county, Pennsylvania. 9. At all times relevant herein, Defendant Wanda's engaged in the sale of beer and other intoxicating beverages to patrons for consumption on its premises. 10. At all times relevant herein, Defendants engaged in the practice of offering discount drinks and encouraging over consumption of alcoholic beverages. F:\LEH\LITIGATI\SZUSTOWI\COHPLAIN.SUZ 2 , , ~ i 11. At all times relevant to the facts and occurrences herein related, the managers, agents, and employees who sold and served the alcoholic beverages to the group of individuals including Rustyn Allan Holp and David DUhovis, were acting for the benefit of Defendant Wanda's and within the scope and course of their employment with Defendants Wanda's and all other Defendants herein. 12. At all times relevant herein, Rustyn Allan Holp and David Duhovis were customers of Defendant Wanda's, when agents, servants and/or employees of Defendant Wanda's sold, furnished, gave or permitted to be sold, furnished, or given intoy.icating beverages to Rustyn Allan Holp and David Duhovis. 13. On the evening of June 10, 1995, Rustyn Allan Holp and David Duhovis were visibly intoxicated while at Wanda's. 14. Despite the visible intoxication of both Rustyn Allan Holp and David DUhovis, Defendant Wanda's and its employees continued to sell and serve them intoxicating beverages. 15. Defendant Wanda's sale and service of the aforementioned intOXicating beverages to Rustyn Allan Holp and David DUhovis, while they were visibly intoxicated, was negligent and constitutes a violation of the Pennsylvania Liquor Code, 47 Pa.C.S.A. ~ 4-493. 16. At approximately 1:00 a.m. on June 11, 1995, Deborah A. Szustowicz left Defendant Wanda's premises in a 1989 Audi 8000 driven by Rustyn Allan Holp. Deborah A. Szustowicz and Dana R. Tozer were in the rear seat and Stephen Miller was in the front F:\LEH\LITlGATI\SZUSTOWI\COHPLAIN.SUZ 3 passenger seat of Rustyn Allan Holp's vehicle. 17. At approximately the same time David Duhovis also left the premises of Defendant Wanda's, driving his Toyota MR2. lB. As Rustyn Allan Holp traveled east on Route 322, he and David Duhovis began racing, ultimately resulting in Rustyn Allan Holp losing control of his vehicle, veering off the roadway and becoming involved in a high speed accident. 19. As a result of this accident Deborah A. Szustowicz sustained multiple traumatic injuries which caused her great pain and sUffering and resulted in her death on June 11, 1995. 20. Rustyn Allan Holp's and David Duhovis' inability to safely operate their motor vehicles and the resulting accident were the direct and proximate result of their intoxication, which rendered them unable to properly control their vehicles and exercise appropriate caution while driving. 21. Rustyn Allan Holp's blood alcohol level, which was taken after the accident, was .155. This is over the legal limit. 22. Rustyn Allan Holp and David Duhovis were each charged with vehicular homicide, involuntary manslaughter, aggravated assault, and four counts each of recklessly endangering another person. Rustyn Allan Holp was also charged with driving while under the influence of alcohol. 23. On June 6, 1996, a Dauphin County Court convicted Rustyn Allan Holp and David Duhovis of homicide by vehicle, involuntary F:\lEH\lITIGATI\SZUST~I\COHPlAIH.SUZ 4 manslaughter, and four counts of recklessly endangering another person as a result of the aforesaid motor vehicle accident. 24. Deborah A. Szustowicz's death was a result of the accident caused by Defendants negligently continuing to serve alcoholic beverages to Rustyn Allan Holp and David Duhovis after they both were visibly intoxicated. 25. All of the injuries and damages as hereinafter related are the direct and proximate result of the willful, wanton, reckless, and negligent behavior of Defendants Hechanicsburg G.F Investors Company, Inc., G.F Development, Inc. t/d/b/a Wanda's Deck and Beach Club a/k/a Wanda's Night Club and their employees, acting within the course and scope of their employment, which consisted, inter alia, of the following: (a) serving and/or selling Rustyn Allan Holp and David Duhovis alcoholic beverages at Defendants' licensed place of business while they were visibly intoxicated, all in violation of 47 Pa.C.S.A S 4- 493(1) ; (b) allowing Rustyn Allan Holp and David Duhovis to consume alcoholic beverages on Defendants' licensed premises while they were visibly intoxicated; (c) failing to establish and implement rules, regulations, and procedures which would prevent and preclude the selling of intoxicating beverages to someone who was visibly intoxicated; (d) failing to properly train and supervise its employees so as to prevent them from selling or furnishing beer and/or alcoholic beverages to invitees who are visibly intoxicated; (e) failing to enforce training guidelines so as to F:\lEH\lITIGATI\SZUST~I\COHPlAIH.SUZ 5 (f) prevent employees from selling or furnishing beer and/or alcoholic beverages to invitees who are visibly intoxicated; failing to monitor the amount of alcohol being served to Rustyn Allan Holp and David Duhovis and to stop selling alcohol to them at a time when it knew or should have know that they were intoxicated; failing to prevent Rustyn Allan Holp and David Duhovis from operating motor vehicles after serving them alcoholic beverages while they were visibly intoxicated despite the obvious risk to others, including Deborah A. Szustowicz; and violating the law of the Commonwealth of Pennsylvania regarding the serving of alcoholic beverages to visibly intoxicated persons. (g) (h) COUNT I WRONGPUL DEATH ACTION 26. Paragraphs 1 through 25 of Plaintiffs' Complaint are incorporated herein by reference. 27. Robert J. Szustowicz and Dorothy M. Szustowicz are the duly appointed, qualified and acting co-Administrators of the Estate of Deborah A. Szustowicz, who died in the manner alleged above on June 11, 1995, leaving surviving her Robert J. Szustowicz and Dorothy H. Szustowicz, her parents, for whose benefit this action is brought. 28. At the time of her death, Deborah A. Szustowicz was twenty-two years of age and in good health. She was a good, faithful and industrious daughter and gave her parents wise counsel, advice and help, which would have continued had she not F:\lEM\lITIGATI\SZUST~JI\COHPlAIN.SUZ 6 met an untimely death. Her death has also deprived her parents of her aid, association, attention, support, comfort, care and society. By reason of the death of Deborah A. szustowicz, her parents have been damaged to an extent as yet undetermined, but in an amount in excess of the jurisdictional minimum. 29. By reason of the negligence of the Defendants and the death of Deborah A. Szustowicz it was also necessary to provide for the funeral services and burial of Deborah A. Szustowicz, for which Plaintiffs spent the sum of $10,606.60, which was fair, customary, reasonable and necessary. WHEREFORE, plaintiffs Robert J. Szustowicz and Dorothy M. Szustowicz pray judgment against the Defendants Mechanicsburg G.F. Investors Company, Inc. and G.F. Development, Inc. t/d/b/a Wanda's Deck and Beach Club a/k/a Wanda's Night Club in an amount in excess of $20,000.00, plus the costs of this action, and such further relief as may be proper. F:\lEH\lITICATI\SZUSTDJI\COHPlAIN.SUZ 7 COUNT II SURVIVAL ACTION 30. Paragraphs 1 through 29 of Plaintiffs' Complaint are incorporated herein by reference. 31. Plaintiffs Robert J. Szustowicz and Dorothy M. Szustowicz also bring this action on behalf of the Estate of Deborah A. szustowicz, deceased. 32. Plaintiffs' claim, on behalf of said Estate, the damages suffered by the Estate of Deborah A. Szustowicz by reason of her death and the damages BUffered by the decedent prior to her death as a result of pain and sUffering, mental pain and suffering, anxiety, emotional distress, loss of enjoyment of life, personal injury and disability. 33. Defendants' conduct of selling alcohol to visibly intoxicated persons constitutes outrageous conduct and a reckless indifference to the rights of other persons. Defendants knew or should have known that selling alcohol to a visibly intoxicated person, knowing that the person intended to drive while intoxicated, created a high degree of risk to other persons. 34. Said conduct of Defendant constitutes wanton and willful negligence, is outrageous and entitles Plaintiffs on behalf of the Estate of Deborah A. szustowicz, deceased, to an award of punitive damages. F:\lEH\lJTIGATJ\SZUST~I\COHPlAIN.SUZ 8 I VERII'ICATION I, the undersigned, hereby verify that the statements made in the foregoing complain',: are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 PA. section 4904 relating to unsworn falsification to authorities. , ~ I i ,... ., ,:' .. , P:ILIJM\UTIOA T1\SZUSTOWllCOMPU,IN.SUZ 10 THOMAS. THOMAS & HAFER BY: Jeffrey 8. Rottig, Esquiro IDENTIFICATION NO.: 19616 305 Notth "Dnt Stt"' P.O. Bo~ 999 H'rrlsbUlg. PA "1080J!1! (1111155.1639 Attornoys for Dofondants ROBERT J. SZUSTOWICZ and DOROTHY M. SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 97-2054 CIVIL v. MECHANICSBURG G.F. INVESTORS CO., INC., and G.F. DEVELOPMENT, INC., tldlbla WANDA'S DECK AND BEACH CLUB a/k/a WANDA'S NIGHT CLUB, Defendants. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT AND NOW, come the Defendants, Mechanicsburg G.F. Investors Co., a Partnership, erroneously referred to as Mechanicsburg G.F. Investors Co., Inc., and G.F. Development, Inc., by their attorneys, Thomas, Thomas & Hafer, and brings the following Preliminary Objections to Plaintiffs' Complaint: 1. This is a personal injury action asserting wrongful death and survival act claims on behalf of the deceased, Deborah Szustowicz. 2. According to the Complaint, Deborah Szustowicz sustained fatal injuries during an automobile accident which occurred during early morning hours of June 11, 1995. 3. The Complaint alleges that the Defendants served alcoholic beverages to Rustyn Holp and David Duhovis while they were "visibly intoxicated". CERTIFICATE OF SERVICE I, JEFFREY B. RETTIG, ESQUIRE, hereby certify that I have served a true and !. I correct copy of the foregoing Preliminary Objections of Defendants to PIBintiffs' Complaint, on the following person(s) by placing same in the United States mail, postage prepaid, on the 7!th day of May, 1997: I , Luther E. Milspaw, Jr., Esquire MILSPAW & BESHORE 130 State Street PO Box 946 Harrisburg, PA 17108 Counsel for Plaintiffs THOMAS, THOMAS & HAFER / ~ .~)/) (, I; /-i/'.' J, By: '. ,I \...- v L ,.{,.... Jeffrey B. Rettig,,Es uire ,I l./ M ~ tn' " M g~ x: 0... 0; <<J:) m , ,~ >- , ,;2 a ~' ,.. 0\ .> . , .'J-...._. . ~ ., ' ;~ .; . t. t.:':-; .. . . ~ --l ~ tb g e .. Co:! ~ S 11 Ii ~ ~ ~ i:s E ~ "- 1 ~ 0 ... II: ~ ~ g ~ ~ . . , .. o Cl E l:i J( It o III .. :> d :: a: ii ~ II: \\.. ROBERT J. SZUSTOWICZ and : IN THE COURT OF COMMON PLEAS OF I I, DOROTHY M. SZUSTOWICZ, : CUMBERLAND COUNTY, PENNSYLVANIA Administrators of the Estate of ' DEBORAH A. SZUSTOWICZ, Plaintiffs v. MECHANICSBURG G.F. INVESTORS CO., INC., and G.F. NO. 97.2054 CIVIL DEVELOPMENT, INC., Vd/b/a WANDA'S DECK AND BEACH CLUB alkJa WANDA'S NIGHT CLUB, Defendants IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before SHEELY. P.J.. HOFFER. J.. AND OLER.J. ORDER OF COURT AND NOW, June 19,1997, upon careful consideration of the arguments of counsel and their briefs, the Defendant's Preliminary Objections are denied. By the Court, Luther E. Mllspaw, Jr., Esquire Milspaw & Beshore 130 State Street P.O. Box 946 eiY}JA.f-'G-'~ Harrisburg, PA 17108 ,,/ I 1/4,t; 7 Jeffrey B. Rettig, Esquire J/~ Thomas, Thomas & Hafer 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 ','~ . -'I .' ~:\..'.': .' -.": '0,::";, 1'J ... , .' ;, I', ~ '1,1 ',1\ ~ I 1111' .'... U -, .... . , .:J JUII:' ""-" ::. "- IU j....... oJ ..... r' -1.1 ;:,-" LlJ.uj ". ....J'..- THOMAS, THOMAS & HAFER BY: Jeffrey 8. Rettia. Esquire IOCNTIfICA rtON NO.: 19616 JO/J Notr^ 'ron' SUN' P.O. 'IJlII' HMtllbutp. PA 17106 DU, t7I11:l/J/J.7U, Attorneys (or Defendant.! ROBERT J. SZUSTOWICZ and DOROTHY M. SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 97-2054 CIVIL v. MECHANICSBURG G.F. INVESTORS CO., INC., and G.F. DEVELOPMENT, INC., t/d/b/a WANDA'S DECK AND BEACH CLUB a/k/a WANDA'S NIGHT CLUB, Defendants. JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANfs AND NOW, come the Defendants, by their attorneys, Thomas, Thomas & Hafer, and answer Plaintiffs' Complaint as follows: 1.-2. It is admitted that the Plaintiffs are who they say they are. As to the balance of the allegations of these paragraphs, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 3. Denied as stated. Mechanicsburg G.F.lnvestors Co., a Partnership, owns and operates the premises located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. 1 4. Denied BS stated. To the contrary, Mechanicsburg G.F. Investors Co" a Partnership, is a General Partnership. The balance of the allegations of this paragraph are admitted. 5. Denied as stated. Defendant Mechanicsburg G,F. Investors Co., a Partnership, owns and operates the premises located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. It is admitted that there is a restaurant/night club on those premises known as Wanda's Deck and Beach Club and also known as Wanda's Nightclub. 6. Denied as stated. Wanda's Deck and Beach Club, a/k/a Wanda's Nightclub, is a restaurant/nightclub which is part of the premises located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. The liquor license for that premises was issued to Mechanicsburg G.F. Investors Co., a Partnership. 7.-8. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these Bllegations and proof thereof is demBnded. 9. Denied as stated. It is admitted that alcoholic beverages were sold at the restaurant/nightclub referred to in this paragraph. 10. Denied. It is denied that Defendants encouraged over consumption of alcoholic beverages. To the contrary, Defendants encouraged responsible consumption of alcoholic beverages. The allegation regarding the offering of discount drinks cannot be responded to. Defendants do, on occasion, offer draft beer on special. 2 11. Denied as stated. Without identifying the alleged managers, agents and employees who allegedly sold and served alcoholic beverages, Defendants are unBble to respond to this allegation. 12. Denied. After reBsonable investigation, Defendants are without knowledge or information sufficient to form B belief as to the truth of these allegations and proof thereof is demanded. 13. Denied. Based on information and belief, if it is established that Messrs. Holp and Duhovis were served intoxicating beverages while at Defendants' premises, it is denied that they were visibly intoxicated at the time. 14. Denied. The answer to Paragraph 1 3 above is incorporated herein by reference thereto. 15. Denied. It is denied that Messrs. Holp and Duhovis were served alcoholic beverages while visibly intoxicated. The balance of the allegations of this paragraph represent conclusions of law to which no reply is required. 16,-23. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 24. Denied as stated. It is denied that the Defendants were negligent as alleged. 25. These allegations are denied pursuant to Pa. R.C.P. 1029. Count I Wronllful Death Action 3 26. The answers to Paragraphs 1 through 25 Bbove are incorporated herein by reference thereto. 27.-28. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a bBlief as to the truth of these allegations and proof thereof is demanded. 29. Denied. It is denied that the Defendant was negligent as alleged. As to the balance of the allegations of this paragraph, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allBgations and proof thereof is demanded. WHEREFORE, Defendants request that Count I of Plaintiffs' Complaint be dismissed without cost to it. 4 Count II Survival Action 30. The answers to Paragraphs 1 through 29 above are incorporated herein by reference thereto. 31. Admitted. 32. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 33. Denied. It is denied that Defendants served alcoholic beverages to Messrs. Holp and Duhovis while they were visibly intoxicated. The balance of the allegations of this paragraph represent conclusions of law to which no reply is required, 34, Denied. It is denied that Plaintiffs are entitled to an award of punitive damages, WHEREFORE, Defendants request that Count II of Plaintiffs' Complaint be dismissed without cost to them. NEW MATTER 35. Plaintiff's clBims for punitive damages fail to stBte claims upon which relief may be grBnted. 36. Plaintiff's claims are barred or reduced by her own negligence, which negligence consists of the following: a) agreeing to get into the vehicle operated by Mr. Holp when she knew, or should have known, that he was incapable of operating that vehicle safely; b) agreeing to travel with Mr. Holp when she knew he tended to drive at an excessive rate of spBed; c) continuing to occupy as a passenger the vehicle driven by Mr. Holp after Mr. Holp began racing with Mr. Duhovis; and d) failing to remonstrate with Mr. Holp to stop speeding, slow down or stop his vehicle so she could get out. 37. Plaintiff's claim is barred or reduced by virtue of her own negligence. 6 Jul~02-97 02:02P P.Ol S.r.ultowlCI Y. a.F. Man.gamen1, Inc. VERIRCATlON I, M, Daniel Hetch, Reglonel Vice PresIdent of Operetlona for a.F. Management, Inc" state that I em familiar with the facts and allegations set forth in tha foregoing Defendant'. Anawar With New Mlltter, I heve read the foregoing document end hereby affirm that It Is true and correct to the best of my personal knowledge, Information and bellaf. This Verification Is made pursuant to 18 Pa.C.S, i4904 relating to unsworn falsification to authorities, G.F. MANAGEMENT, INC. M. Daniel Hatch, Regional Vice Prasldant of Operations CERTIFICATE OF SERVICE I, JEFFREY B. RETTIG, ESQUIRE, hereby certify that I have served a true and correct copy of the foregoing Answer With New Matter on the following perso I placing same in the United States mail, postage prepaid, on the ~ daylof- 1997: Luther E. Milspaw, Jr" Esquire Milspaw & Beshore 1 30 State Street PO Box 946 HBrrisburg, PA 17108 ..:t '~ It: 7- ..-, 8~-t, M :c 7- ..f Q.. a:::;- '/~ co ~,,~ I ..1.- ~ CCm !iRe.. :<: ~ r- 3 '0' r.. '~ ~ l:i iO ~ ~ co '0 ' !<.. ~ -: ~,; Q ::to.... (D ~ j ti ~ ~.... z .. Wi ~ g Q ~ " . , '. .,', II o 5. i IS '" :> II Wi .i ~ x ROBERT J. SZUSTOWICZ and DOROTHY M. SZUSTOWICZ, Administrators of the Estate ot DEBORAH A. SZUSTOWICZ Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : . . . . : . . v. : CIVIL ACTION - LAW . . HECHANICSBURG G.F INVESTORS : NO. 97 - 2054 - civil co., INC. and G.F DEVELOPMENT,: INC., t/d/b/a WANDA'S DECK AND: BEACH CLUB a/k/a WANDA'S : NIGHT CLUB, : JURY TRIAL DEMANDED Defendants : . . v. . . . . DAVID DUHOVIS, RUSTYN ALLAN HOLP, and JOHN W. FOLEY, JR., : Additional Defendants . . . . PLAINTIFFS' REPLY TO THE NEW MATTER OF DEFENDANTS AND NOW comes the Plaintiffs by and through their attorneys Milspaw & Beshore, and reply to the New Matter of Defendants as follows: REPLY TO NEW MATTER 35. Denied. The allegation constitutes a legal conclusion and no response is required. 36(a-d). Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment. In further reply, the averment constitutes a conclusion of law to which no response is required. 37. Denied. The allegation constitutes a legal conclusion F:\LEH\LITIGATI\SZUST~I\REPLY 5. During the early evening hours of June 11, 1995, the Additional Defendant, Holp, was operating a 1989 Audi owned by the Additional Defendant, John W. Foley, Jr. 6, The Plaintiff was a passenger in the 1989 Audi operated by Additional Defendant, Holp, 7. While proceeding eastbound on Route 322 in Swatara Township, Dauphin County, Pennsylvania, the Additional Defendants, Holp and Duhovis, began to race with one another. 8. In the course of racing, Additional Defendant, Holp, lost control of his vehicle, collided with an emnbankment and landed on its roof. 9. As a result, the Plaintiff was injured. Count I Defendants v. David Duhovis 10. The allegations of Paragraphs 1 through 9 above are incorporated herein by reference thereto. 11. The accident referred to above resulted in whole or in part from the negligence of the Additional Defendant, David Duhovis, which negligence consisted of the following: a) b) c) driving his vehicle at an excessive rate of speed; engaging in a race with Additional Defendant Holp; operating his vehicle while under the influence of intoxicating beverages; d) maneuvering his vehicle into the left lane of eastbound Route 322 in an unsafe fashion. WHEREFORE, in the event the Defendants are held liable to PIBintiff, which liability is expressly denied, then the Additional Defendant, David Duhovis, is solely liable for the Plaintiff's injuries or liable over to the Additional Defendants on Plaintiff's claims or, in the alternative, liable for indemnification and/or contribution. Count II Defendants v. Rustvn A. HolD 12. The allegations of Paragraphs 1 through 11 above are incorporated herein by reference thereto. 13. The accident referred to in the Plaintiff's Complaint resulted in whole or in part from the negligence of the Additional Defendant, Rustyn A. Holp, which negligence consisted of the following: a) operating his vehicle at an excessive rate of speed; b) racing with the vehicle being operated by the Additional Defendant, Duhovis; c) operating his vehicle while under the influence of intoxicating beverages; and d) failing to operate his vehicle in such a manner as to enable him to maintain control of the vehicle. 6 WHEREFORE, if the Defendants are held liable to Plaintiff, which liability is expressly denied, then the Additional Defendant Holp is solely liable to Plaintiff, liable over to Defendants on Plaintiff's claims or, in the alternative, IiBble to the Additional Defendants for contribution and/or indemnification. Respectfully submitted, THOMAS. THOMAS & HAFER DATE: 7 f J; )9? ~ - 'J '\') < ) - /' . . '/. ,1.-:1: ( L. Jeffrey B. Rettig, Esquire , r 1.0./#19616, 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Defendants 6 ,.-, I .-.. , , Exhibit A ROBERT J. SZUSTOWICZ And DOROTHY H. SZUSTOWICZ, Administr~tors of the Estate of DEBORAH A. SZUSTOWICZ PlAintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . . . . : v. : CIVIL ACTION - LAW MECHANICS BURG G.F INVESTORS NO. tf 7, ,=/(1)4, co., INC. And G.F DEVELOPMENT,: INC.,t/d/b/A WANDA'S DECK AND BEACH CLUB a/k/a WANDA'S : NIGHT CLUB, JURY TRIAL DEMANDED Defendants ., 'IJ ee(ll L TRUE COpy FROM AE ~~J~~limony Whereof, I hare unto se~~y~nd This. a ( od' saId C at Canlsle, Pa. \ a 0'" I 19-1:;L' ,. .' ^_ J - . ~J " ' Proth '_ '\I'''~ t-; i . I ' , / BY: Lu he E. Milspaw, Attorney I.D. No. 130 state street P.O. Box 946 Harrisburg, PA 17108 (717) 236-0781 Attorneys for Plaintiffs ", , , NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action with in twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and' a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR L.~WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-753 H r- .:"'..t -, -.. " . . , , Date: April 17, 1997 , .,., ., Esquire 226 . '. ROBERT J. SZUSTOWICZ and DOROTHY H. SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MECHANICS BURG G.F INVESTORS co., INC. and G.F DEVELOPMENT,: INC.,tjd/b/a WANDA'S DECK AND : BEACH CLUB a/k/a WANDA'S NIGHT CLUB, NO. JURY TRIAL DEMANDED Defendants . . NOTICIA Le han demandado a usted en la corte. si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DON DE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 F:\LE~\LITIGATI\SZUSTOJI\COHPLAIN.SUZ ROBERT J. SZUSTOWICZ and DOROTHY H. SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW . . : MECHANICS BURG G.F INVESTORS : NO. CO., INC. and G.F DEVELOPMENT,: INC.,t/d/b/a WANDA'S DECK AND BEACH CLUB a/k/a WANDA'S NIGHT CLUB, JURY TRIAL DEMANDED Defendants C 0 H P L A I N T 1. Plaintiff Robert J. Szustowicz resides at 593 Cook Court, Hummelstown, Dauphin County, Pennsylvania, and is the co- Administrator of the Estate of his daughter Deborah A. Szustowicz. 2. Plaintiff Dorothy M. Szustowicz resides at 232 Candlewick Lane, Hershey, Dauphin County, Pennsylvania, and is the co- Administrator of the Estate of her daughter Deborah A. Szustowicz. 3. Defendant Mechanicsburg G.F. Investors Company, Inc. is a limited partnership regularly doing business in Cumberland County, Pennsylvania, located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. 4. Defendant G.F. Development, Inc. is a Pellnsylvania corporation and owner of Defendant Mechanicsburg G.F. Investors, Company, Inc. and is also located at 5401 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. F:\LEH\LITlGATI\SZUSTOUI\CCHPLAIN,SUZ 5. Defendants Mechanicsburg G. F. Investors Company, Inc. and G.F. Development, Inc. own, operate, trade, and do business as Wanda's Deck and Beach Club a/k/a Wanda's Night Club, also located at 5401 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 6. Defendant Wanda's Deck and Beach Club a/k/a Wanda's Night Club ("Wanda's") is a business establishment licensed to serve alcoholic and intoxicating beverages pursuant to liquor control license number H-5017. The aforesaid liquor license was issued to Defendant Mechanicsburg G.F. Investors Company, Inc. 7. All of the facts and occurrences hereinafter related took place on or about the late evening hours of June 10, 1995 and the early morning hours of June 11, 1995. 8. On June 10, 1995, at approximately 10:00 p.m., Deborah A. Szustowicz accompanied several individuals including Rustyn Allan Holp, David Duhovis, Steven Miller, and Dana R. Tozer to Defendant Wanda's and the Holiday Inn in Mechanicsburg, Cumberland County, Pennsylvania. 9. At all times relevant herein, Defendant Wanda's engaged in the sale of beer and other intoxicating beverages to patrons for consumption on its premises. 10. At all times relevant herein, Defendants engaged in the practice of offering discount drinks and encouraging over consumption of alcoholic beverages. r:\LEH\LIIIGATI\SZUSI~I\COHPLAIN.SUZ 2 11. At all times relevant to the facts and occurrences herein related, the managers, agents, and employees who sold and served the alcoholic beverages to the group of individuals including Rustyn Allan Holp and David DUhovis, were acting for the benefit of Defendant Wanda's and within the scope and course of their employment with Defendants Wanda's and all other Defendants herein. 12. At all times relevant herein, Rustyn Allan Holp and David Duhovis were customers of Defendant Wanda's, when agents, servants and/or employees of Defendant Wanda's sold, furnished, gave or permitted to be sold, furnished, or given intoxicating beverages to Rustyn Allan Holp and David Duhovis. 13. On the evening of June 10, 1995, Rustyn Allan Holp and David Duhovis were visibly intoxicated while at Wanda's. 14. Despite the visible intoxication of both Rustyn Allan Holp and David Duhovis, Defendant Wanda's and its employees continued to sell and serve them intoxicating beverages. 15. Defendant Wanda's sale and service of the aforementioned intoxicating beverages to Rustyn Allan Holp and David Duhovis, while they were visibly intoxicated, was negligent and constitutes a violation of the Pennsylvania Liquor Code, 47 Pa.C.S.A. S 4-493. 16. At approximately 1:00 a.m. on June 11, 1995, Deborah A. Szustowicz left Defendant Wanda's premises in a 1989 Audi 8000 driven by Rustyn Allan Holp. Deborah A. Szustowicz and Dana R. Tozer were in the rear seat and Stephen Miller was in the front F:\LE~\LITIGATI\SZUST~I\COHPLAIN.SUZ 3 passenger seat of Rustyn Allan Holp's vehicle. 17. At approximately the same time David Duhovis also left the premises of Defendant Wanda's, driving his Toyota MR2. 18. As Rustyn Allan Holp traveled east on Route 322, he and David Duhovis began racing, ultimately resulting in Rustyn Allan Holp losing control of his vehicle, veering off the roadway and becoming involved in a high speed accident. 19. As a result of this accident Deborah A. Szustowicz sustained multiple traumatic injuries which caused her great pain and suffering and resulted in her death on June 11, 1995. 20. Rustyn Allan Holp's and David Duhovis' inability to safely operate their motor vehicles and the resulting accident were the direct and proximate result of their intoxication, which rendered them unable to properly control their vehicles and exercise appropriate caution while driving. 21. Rustyn Allan Holp's blood alcohol level, which was taken after the accident, was .155. This is over the legal limit. 22. Rustyn Allan Holp and David Duhovis were each charged with vehicular homicide, involuntary manslaughter, aggravated assault, and four counts each of recklessly endangering another person. Rustyn Allan Holp was also charged with driving while under the influence of alcohol. 23. On June 6, 1996, a Dauphin county Court convicted Rustyn Allan Holp and David Duhovis of homicide by vehicle, involuntary F:\lEH\lITIGATI\SZUSTOUI\COMPlAIN.SUZ 4 manslaughter, and four counts of recklessly endangering another I t person as a result of the aforesaid motor vehicle accident. 24. Deborah A. Szustowicz's death was a result of the accident caused by Defendants negligently continuing to serve alcoholic beverages to Rustyn Allan Holp and David Duhovis after "'" they both were visibly intoxicated. 25. All of the injuries and damages as hereinafter related are the direct and proximate result of the willful, wanton, reckless, and negligent behavior of Defendants Mechanicsburg G.F Investors Company, Inc., G.F Development, Inc. t/d/b/a Wanda's Deck and Beach Club a/k/a Wanda's Night Club and their employees, acting within the course and scope of their employment, which consisted, inter alia, of the following: (a) serving and/or selling Rustyn Allan Holp and David Duhovis alcoholic beverages at Defendants' licensed place of business while they were visibly intoxicated, all in violation of 47 Pa.C.S.A ~ 4- 493 (1) ; (b) allowing Rustyn Allan Holp and David Duhovis to conSUIOe alcoholic beverages on Defendants' licensed premises while they were visibly intoxicated; (c) failing to establish and implement rules, regulations, and procedures which would prevent and preclude the selling of intoxicating beverages to someone who was visibly intoxicated; (d) failing to properly train and supervise its employees so as to prevent them from selling or furnishing beer and/or alcoholic beverages to invitees who are visibly intoxicated; (e) failing to enforce training guidelines so as to F:\LEH\LITIGATI\SZUSTOUI\COMPLAIN.SUZ 5 ......,.'.. . .,.,.,.0>'..... ....'. " " ". prevent employees from selling or furnishing beer and/or alcoholic beverages to inv itees who are visibly intoxicated; (f) failing to monitor the amount of alcohol being served to Rustyn Allan Holp and David Duhovis and to stop selling alcohol to them at a time when it knew or should have know that they were intoxicated; (g) failing to prevent Rustyn Allan Holp and David Duhovis from operating motor vehicles after serving them alcoholic beverages while they were visibly intoxicated despite the obvious risk to others, including Deborah A. szustowicz; and (h) violating the law of the Commonwealth of Pennsylvania regarding the serving of alcoholic beverages to visibly intoxicated persons. COUNT I WRONGFUL DEATH ACTION 26. Paragraphs 1 through 25 of Plaintiffs' Complaint are incorporated herein by reference. 27. Robert J. szustowicz and Dorothy M. szustowicz are the duly appointed, qualified and acting co-Administrators of the Estate of Deborah A. Szustowicz, who died in the manner alleged above on June 11, 1995, leaving surviving her Robert J. szustowicz and Dorothy M. Szustowicz, her parents, for whose benefit this action is brought. 28. At the time of her death, Deborah A. Szustowicz was twenty-two years of age and in good health. She was a good, faithful and industrious daughter and gave her parents wise counsel, advice and help, which would have continued had she not F:\LEH\LITICATI\SlUSTOUI\COMPLAIN.SUl 6 I I met an untimely death. Her death has also deprived her parents of her aid, association, attention, support, comfort, care and society. By reason of the death of Deborah A. Szustowicz, her parents have been damaged to an extent as yet undetermined, but in an amount in excess of the jurisdictional minimum. 29. By reason of the negligence of the Defendants and the death of Deborah A. szustowicz it was also necessary to provide for the funeral services and burial of Deborah A. Szustowicz, for which WHEREFORE, Plaintiffs Robert J. szustowicz and Dorothy M. Plaintiffs spent the sum of $10,606.60, which was fair, customary, reasonable and necessary. Szustowicz pray judgment against the Defendants Mechanicsburg a.F. Investors Company, Inc. and a.F. Development, Inc. t/d/b/a Wanda's Deck and Beach Club a/k/a Wanda's Night Club in an amount in excess of $20,000.00, plus the costs of this action, and such further relief as may be proper. F:\LEM\LITIGATI\51U5TDJI\COMPLAIN.SUl 7 - ..:' -'- . WHEREFORE, Plaintiffs Robert J. Szustowicz and Dorothy H. Szustowicz demand a judgment on behalf of the Estate of Deborah A. Szustowicz against the Defendants Hechanicsburg G. F. Investors Company, Inc. and G.F. Development, Inc. t/d/b/a Wanda's Deck and Beach Club a/k/a Wanda's Night Club for general, compensatory and punitive damages in an amount in excess of Twenty Thousand ($20,000.00) Dollars, plus re~sonable attorneys fees and costs and such other relief as this Court deems just. DATE: April 17, 1997 By: Luther E. Hi spaw, J ,Esquire Attorney I.D. No.1 2 6 130 State Street P.O. Box 946 Harrisburg, PA 17108 (717) 236-0781 Attorneys for Plaintiffs F:\LEH\LITIGATI\SZUSTOWI\COMPLAIN.SUZ ~ I , , f VERIFICATION I, the undersigned, hereby verify that the statements made in the foregoing Complain'; are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 PA. section 4904 relating to unsworn falsification to authorities. ~j Robert J P:IU!MIUl1OJ\ 11ISZ1JSI'OWllCOMPU.lN.SUl 10 Exhibit B THOMAS, THOMAS & HAFER IY: J~If(~y B. Rettig. Esquirtl IDENTIFICA TION NO.: 196'6 305 Non" Frollt S".., ',O,Io.IU HMrlIbutg. I'A 1710'.O'JJ 11171255.113' Attorneys {or Defendant! , ~ I I I J ROBERT J. SZUSTOWICZ and DOROTHY M, SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 97-2054 CIVIL v. MECHANICSBURG G.F, INVESTORS CO., INC., and G.F. DEVELOPMENT, INC., t/d/b/a WANDA'S DECK AND JURY TRIAL DEMANDED BEACH CLUB a/k/a WANDA'S NIGHT CLUB, Defendants. NOTICE TO PLEAD TO: Plaintiffs and their counsel, YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, THOMAS, THOMAS & HAFER DATE 119'1 ~, /;/. , Je frey B. Rettig, Es , 'I. . #19616 05 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255.7639 Attorneys for Answering Defendant THOMAS, THOMAS & HAFER BY: Jeffrey B. Rettig, Esquir" IDENTlffCAf/ONNO.: 19616 305 Non" Fro,., SI,", 1'.0. '0. UJ HM1IIbutp. I'A , JlO'.OJJJ /7111 151.7US Attorney.! for Defendants I i' I I ROBERT J. SZUSTOWICZ and DOROTHY M. SZUSTOWICZ, Administrators of the Estate of DEBORAH A. SZUSTOWICZ, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION " NO. 97-2054 CIVIL v. MECHANICSBURG G.F. INVESTORS CO., INC., and G.F. DEVELOPMENT, INC" tldlbla WANDA'S DECK AND BEACH CLUB alkla WANDA'S NIGHT CLUB, Defendants. JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANtS AND NOW, come the Defendants, by their attorneys, Thomas, Thomas & Hafer, and answer Plaintiffs' Complaint as follows: 1.-2. It is admitted that the Plaintiffs are who they say they are. As to the balance of the allegations of these paragraphs, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 3. Denied as stated. Mechanicsburg G.F.lnvestors Co., a Partnership, owns and operates the premises located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. 1 4. Denied as stated. To the contrary, Mechanicsburg G.F. Investors Co., a Partnership, is a General Partnership. The balance of the allegations of this paragraph are admitted. 5. Denied as stated. Defendant Mechanicsburg G.F. Investors Co., a Partnership, owns and operates the premises located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. It is admitted that there is a restaurant/night club on those premises known as Wanda's Deck and Beach Club and also known as Wanda's Nightclub. 6. Denied as stated. Wanda's Deck and Beach Club, a/k/a Wanda's Nightclub, is a restaurant/nightclub which is part of the premises located at 5401 Carlisle Pike, Mechanicsburg, Pennsylvania. The liquor license for that premises was issued to Mechanicsburg G.F. Investors Co., a Partnership. 7.-8. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 9. Denied as stated. It is admitted that alcoholic beverages were sold at the restaurant/nightclub referred to in this paragraph. 10. Denied. It is denied that Defendants encouraged over consumption of alcoholic beverages. To the contrary, Defendants encouraged responsible consumption of alcoholic beverages. The allegation regarding the offering of discount drinks cannot be responded to. Defendants do, on occasion, offer draft beer on special. 2 11. Denied as stated. Without identifying the alleged managers, agents and employees who allegedly sold and served alcoholic beverages, Defendants are unable to respond to this allegation. 12. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 13. Denied. Based on information and belief, if it is established that Messrs. Holp and Duhovis were served intoxicating beverages while at Defendants' premises, it is denied that they were visibly intoxicated at the time. 14. Denied. The answer to Paragraph 13 above is incorporated herein by reference thereto. 15. Denied. It is denied that Messrs. Holp and Duhovis were served alcoholic beverages while visibly intoxicated. The balance of the allegations of this paragraph represent conclusions of law to which no reply is required. 16.-23. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 24. Denied as stated. It is denied that the Defendants were negligent as alleged. 25. These allegations are denied pursuant to Pa. R.C.P. 1029. Count I WronQful Death Action 3 26. The answers to Paragraphs 1 through 25 above are incorporated herein ! by reference thereto. 27.-28. Denied. After reasonable investigation, Defendants are without I. i I " knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 29. Denied. It is denied that the Defendant was negligent as alleged. As to the balance of the allegations of this paragraph, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. WHEREFORE, Defendants request that Count I of Plaintiffs' Complaint be dismissed without cost to it. Count II Survival Action 30. The answers to Paragraphs 1 through 29 above are incorporated herein by reference thereto. 31. Admitted. 32. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof is demanded. 33. Denied. It is denied that Defendants served alcoholic beverages to Messrs. Holp and Duhovis while they were visibly intoxicated. The balance of the 4 allegations of this paragraph represent conclusions of law to which no reply is required. 34. Denied, It is denied that Plaintiffs are entitled to an award of punitive damBges. WHEREFORE, Defendants request that Count II of Plaintiffs' Complaint be dismissed without cost to them. NEW MATTER 35. Plaintiff's claims for punitive damages fail to state claims upon which relief may be granted. 36. Plaintiff's claims are barred or reduced by her own negligence, which negligence consists of the following: a) agreeing to get into the vehicle operated by Mr. Holp when she knew, or should have known, that he was incapable of operating that vehicle safely; b) agreeing to travel with Mr. Holp when she knew he tended to drive at an excessive rate of speed; c) continuing to occupy as a passenger the vehicle driven by Mr. Holp after Mr. Holp began racing with Mr. Duhovis; and d) failing to remonstrate with Mr. Holp to stop speeding, slow down or stop his vehicle so she could get out. 37. Plaintiff's claim is barred or reduced by virtue of her own negligence. 6 38. PIBintiff's claims are subject to the provisions of the Pennsylvania , I Financial Responsibility Act, the limitations of which are incorporated herein by 39, This accident and Plaintiff's injuries were due to the negligence of Rustyn I , I I reference thereto. Holp and David Duhovis. 40. An award of punitive damages under the facts of this case would be unconstitutional. WHEREFORE, Defendants request that Plaintiff's Complaint be dismissed without cost to them, Respectfully submitted, DATE: June 24, 1997 .-- THOMAS',THO~7 & HAFER L?iS " ., J ffrey B. Rettig, Esqui e . .D. #19616 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Defendants 6 1997: I :r I I , 'I ,] CERTIFICATE OF SERVICE I, JEFFREY B. RETTIG, ESQUIRE, hereby certify that I have served a true and correct copy of the foregoing Answer With New Matter on the following pers s) by I placing same in the United States mail, postage prepaid, on the ~ day10 Luther E, Milspaw, Jr., Esquire Milspaw & Beshore 130 State Street PO Box 946 Harrisburg, PA 17108 I / C\J E; .:; ~~ .::: t5~ a.. ca ~ ~ml :;; {3 Co ~ ~ t; ~ ~ ~ : ~ b ~ : Q a.. 16. g ~ j ~ ~ .... z ~ ~ ~ Q ~ to 0' ;:: ,~ ~ a: " to .. ;;: '~ X '.,' '. I . . .' . . Uniled Slales BanklllJllcy COllll MIDDLE DISTRICT OF PENNSYLVANIA VOLUNTARY PETITION iNji(" I/olp, Rustyn A. 'ID.;~l OIJOiiIilifiITti{,--- NO JOINT DEIHOR All. OlllEn IJAMES lJ"d hy tI,. det,!r.,u, 11..1",1 ti r"'" ", t 011untlAMI:Sllu,J I,y II,,, t'"I,1 Illt.lul 111 1t...,,1 6rut. Rusty I/olp N/^ SOCIAL S[ClJIUIY/1Ak I II IlIJMIl[1l 200-66-6296 IUrI'llotlE , - SOCiAl SfCUIU1Y/IAX III IItll.4l11" HI [I'Hotj[ SIIIEE' AI>IJIU;SSor urnlO" 82 Cedar Manor El1zabetllto"n, PA (717) 361-8050 N/A "Si'i'i[[j" MxwlEssrnxmll IlEIIIOIl N/^ 17022 COW"... or RESIOWCE on"fl!UCIPAl PlACE Of OU5Itj[S5 Daupllln MAtlltlG "0011E55 or OEDlon (,I,liIl.r'f1II,om .lInl.,Mr",) 82 Cedar Manor Ell.abethto"n, PA <::OlJPlIYor flES1()WCE/I'IUIlClr,l1. PI ~t. 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ClI~J'HII'i II ,.1;>Ofl! Y o 1 1"1 j'q'rl H_l (fl'l ~.oll '''.., t I '1 . i I I 11 ,IP' ,,', "',llUII'wll.-",I'I"'l-" .2. ~~'IIl{~)t')1<;\~.~,,~!"~'Y~-A\.\11'l"'1m1r~:t1~n~""""~,""""","}r''''''b~Cl .,." .ru~~1~~Y-jt.~i?i'1f:~~}~~~s~~}lt4~~~~~~:J~~}~~J~t1~~f$'n1}~~':::f!~~7!~!i~.~i~r,,~ ". -; ROBERTJ.SZUSTO~CZand DOROTHY M. SZUSTO~CZ, Admlnlltrators of the Eltate of DEBORAH A. SZUSTOWlCZ Plalntlffl : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CML ACTION. LAW : NO. 97. 2054 . Civil MECHANICSBURG G.F INVESTORS CO., INC. and G.F DEVELOPMENT, INC., Udlbla WANDA'S DECK AND BEACH CLUB a/kJa WANDA'S NIGHT CLUB, Defendanm : JURY TRIAL DEMANDED v. DAVID DUHOVlS, RUSTYN ALLAN HOLP, and JOHN W. FOLEY, JR., Additional Defendanta PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark this suit discontinued with preJudice. Dated: April 22, 1999 [; ther E. Mllspaw, J ., Attorney for Plaintiffs . ..~~ :t._~'~~~Jj:f',;~}:~,:,;_':::i~;/;::;i~~::~i;',\~~'!i~~,:~~~;;~~~7(*, ~..~:~..~J:<i;.,_~ . ,: ,';J;,',t J~rl"'4'$.:?t''''''4.~n~ 4W~ ;tg;;-.:l~a.s '," f<.f-~t' ~~~l,~. -l:""+~'^~" .,. 'h:(_.t..;o;i.;~,:rj!\'t"r;(';"f;'1' t ......., .:' ~J'''''~~;ll.!;'~.:,._,::,~,,::~,;~'tlO'''~.l.~.~:t&,.~~-~..lI;~1.t\1~l-;~.,.