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8 Hoffor
THERESA M, SOUDERS and
GERALD R, SOUDERS.
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
V,
PORT DARE d/b/o PETLAND.
DefencJant
CIVIL ACTION - LAW
97-3786 CIVIL TERM
l1L.RL_.PREJRlAL CONFERlli.E
A pretrial conference was held before the Honorable
George E, Hoffer. p, J, on Wednesday. January 7, 1998.
In this negligence cose, Paul Taneff, Esquire.
represents the plaintiff; and Thomas J. Williams, Esquire.
represents the defendant,
Defendant is 0 store selling pets. inClUding birds,
Plaintiff claims she was a customer in that store on July 24.
1995, and while there was bitten by a large macaw, She claims
the bird was kept in an open pit and while the bird sat on the
wall of the pit and plaintiff had her back to the bird. the bird
assaulted her causing her injuries,
Mr, Taneff relates that he hos not had the oPPortunity
to depose various witnesses on defense counsel's list and
requests a continuance of the case, Defense counsel Objects to
this since the case was originally placed on the trial list in
late September, At plaintiffs: request. He will grant plaintiff
97-3786 Civil Term
Pretrial Conference
Page 2
one continuance until the March term of court beginning Murch
16. 1998, The cose sholl be pretried again on February 25.
1998, Mr, Toneff will be given until February 20. 1998. to
complete all depositions that he wishes to toke, No further
depositions sholl be permitted for either side after February
20. 1998,
By the Cour 1.
Geor
Paul Toneff. Esquire
4219 Derry Street
Harrisburg. Po, 17111
For the Plaintiff
Thomas J, Williams. Esquire
For the Defendant
Prothonotary
Court Administrator
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Among them was a scarlet macaw measuring approximately
l8-24 inches in height. While Mrs, Souders was standing with
her back to the open pit area and being shown the caged
parakeets, the scarlet macaw grabbed her shirt sleeve with its
bill. As she turned to see who or what grabbed her sleeve,
the macaw suddenly climbed onto Mrs, Souders' left arm and
repeatedly sank its talons and bill into her arm.
The store clerk who had been assisting Mrs. Souders began
striking the macaw with her hand in an attempt to stop the
bird's attack. Unfortunately, these attempts served to only
aggravate the macaw. Each time the clerk struck the macaw, it
would sink its talons and bill into Mrs. Souders' arm and
continue its climb towards her face and shoulder region.
When the store clerk realized that her efforts to
dislodge the macaw were fruitless, she stepped away and
returned with a broom. Eventually, the store clerk managed to
get the macaw to crawl onto the broom's handle. The macaw was
subsequently returned to the open pit area, but only after the
bird had terrorized Mrs. Souders and inflicted injuries upon
her'person without any provocation.
2. DAMAGES:
In consequence of the injuries she suffered, Mrs. Souders
was treated and/or examined at the office of her primary care
physician, Dr. Brian Uniacke, of Cumberland Valley Family
Practice on July 28, July 3l and November 29, 1995. There she
was treated for an infection and was given anti-biotics and a
tetanus/diphtheria shot.
2
, ,
.
As a result of the bird attack, Mrs. Souders has been
left with a permanent scar measuring approximately 5mm x 5mm
and a probable sub-cutaneous nerve injury. The site of the
nerve injury lies in the area of the shoulder where the straps
to her undergarments come to rest. Due to the unique location
of the injury site, Mrs. Souders experiences constant
discomfort. Moreover, since the bird attack she has developed
an aversion and fear of birds.
3. LIABILITY AND DAMAGE ISSUES:
A. Whether a scarlet macaw is a wild animal under the laws
of this Commonwealth?
B. Whether the Defendant can be held strictly liable for the
injuries which the Plaintiff sustained if the macaw acted
in conformity with its natural character and
propensities?
C. Whether the Defendant can be held liable for ordinary,
negligence for the injuries which the Plaintiff sustained
if the Defendant had reason to know that the macaw might
do harm if not properly confined?
4. EVIDENTIARY ISSUES:
Plaintiffs are not aware of any special evidentiary
issues at this time,
5. WITNESSfES]:
Plaintiffs' witnesses shall or may be as follows:
A. Plaintiffs, Theresa M. Souders and, her
husband, Gerald R. Souders;
B. Plaintiffs' daughters, Danielle and Jennifer
3
.
Souders, eyewitnesses to the incident;
C. Dr. Brian Uniacke, treating physician or other
medical experts whose identity and curriculum
vitaes will be provided to Defendant prior to
trial:
0, Other experts knowledgeable in bird behavior
whose identities and curriculum vitaes will be
provided to Defendant prior to trial:
E. Defendant and Defendant's witnesses as on cross
examination;
F, Plaintiffs reserve the right to supplement this
list upon reasonable notice to the Defendant.
G, Plaintiffs reserve the right to call any
witness on rebuttal,
6. EXHIBIT!S] :
Plaintiffs have not completed their exhibit list at this
time. However, any and all exhibits which Plaintiffs or their
witnesses intend to use at trial will be provided to Defendant
prior to trial. Further, Plaintiffs reserve the right to use
any' exhibit on rebuttal.
7. SETTLEMENT NEGOTIATIONS:
On June 17, 1996, Plaintiffs served a detailed demand
upon the Defendant's insurance carrier for $l2,000 to settle
the case. In September 1996, the Defendant's carrier
requested updated photographs of the Plaintiff's injuries. In
November 1996, the Plaintiffs provided the carrier with
updated injury photographs and an updated medical report from
4
.
the Plaintiff's treating physician.
Characterizing this case as a "nuisance", the carrier
offered $3,000,00 to settle, In March 1997, Plaintiffs asked
the carrier to reconsider their settlement offer which they
declined to do. As a result, suit was initiated by Writ of
Summons on July 14, 1997.
The case was referred to Defendant's counsel who made a
last and final offer of $3,500.00 to settle the case,
Although that offer was subsequently rejected by the
Plaintiffs, the Plaintiffs are still predisposed to settling
this case without litigation.
8, OTHER MATTERS OF SPECIAL CONSIDERATION:
On September 24, 1997, the Defendan~'s attorneys took the
oral depositions of the Plaintiffs and their daughters. The
deposition transcripts were received by Plaintiffs' counsel on
October 24, 1997, On November 3, 1997, Plaintiffs furnished
Defendant's counsel with Answers and Responses to the
Defendant's Interrogatories and Document Requests.
Without the courtesy of a call to discuss when the case
might be ripe for trial, on September 30, 1997 the Defendant's
counsel filed a Praecipe to list the case for trial for the
February 2, 1997 (sic) term, Plaintiffs' counsel immediately
filed an Objection And Motion To Strike Case Listing. That
Motion is still pending before this Court for disposition.
For all the reasons contained in the pending Motion, the
Plaintiffs will be seriously prejudiced should they be made to
try this case at the February 1998 Term.
5
,
Among them was a scarlet macaw measuring approximately
18-24 inches in height. While Mrs. Souders was standing with
her back to the open pit area and being shown the caged
parakeets, the scarlet macaw grabbed her shirt sleeve with its
bill. As she turned to see who or what grabbed her sleeve,
the macaw suddenly climbed onto Mrs. Souders' left arm and
repeatedly sank its talons and bill into her arm.
The store clerk who had been assisting Mrs. Souders began
striking the macaw with her hand in an attempt to stop the
bird's attack. Unfortunately, these attempts served to only
aggravate the macaw. Each time the clerk struck the macaw, it
would sink its talons and bill into Mrs. Souders' arm and
continue its climb towards her face and shoulder region.
When the store clerk realized that her efforts to
dislodge the macaw were fruitless, she stepped away and
returned with a broom. Eventually, the store clerk managed to
get the macaw to crawl onto the broom's handle. The macaw was
subsequently returned to the open pit area, but only after the
bird had terrorized Mrs. Souders and inflicted injuries upon
her person without any provocation.
2. DAMAGES:
In consequence of the injuries she suffered, Mrs. Souders
was treated and/or examined at the office of her primary care
physician, Dr. Brian Uniacke, of Cumberland Valley Family
Practice on July 28, July 31 and November 29, 1995. There she
was treated for an infection and was given anti-biotics and a
tetanus/diphtheria shot.
2
As a result of the bird attack, Mrs. Souders has been
left with a permanent scar measuring approximately 5mm x 5mm
and a probable sub-cutaneous nerve injury. The Rite of the
nerve injury lies in the area of the shoulder where the straps
to her undergarments come to rest. Due to the unique location
of the injury site, Mrs. Souders experiences constant
discomfort. Moreover, since the bird attack she has developed
an aversion and fear of birds.
3. LIABILITY AND DAMAGE ISSUES:
A. Whether a scarlet macaw is a wild animal under the laws
of this Commonwealth?
B. Whether the Defendant can be held strictly liable for the
injuries which the Plaintiff sustained if the macaw acted
in conformity with its natural character and
propensities?
C. Whether the Defendant can be held liable for ordinary
negligence for the injuries which the Plaintiff sustained
if the Defendant had reason to know that the macaw might
do harm if not properly confined?
4. EVIDENTIARY ISSUES:
Plaintiffs are not aware of any special evidentiary
issues at this time.
5. WITNESS [ESl :
Plaintiffs' witnesses shall or may be as follows:
A. Plaintiffs, Theresa M. Souders and, her
husband, Gerald R. Souders;
B. Plaintiffs' daughters, Danielle and Jennifer
3
Souders, eyewitnesses to the incident;
C. Dr. Brian Uniacke, treating physician or other
medical experts whose identity and curriculum
vitaes will be provided to Defendant prior to
trial;
D. Other experts knowledgeable in bird behavior
whose identities and curriculum vitaes will be
provided to Defendant prior to trial;
E. Defendant and Defendant's witnesses as on cross
examination;
F. Plaintiffs reserve the right to supplement this
list upon reasonable notice to the Defendant.
G. Plaintiffs reserve the right to call any
witness on rebuttal.
6. EXHIBIT[Sl:
Plaintiffs have not completed their exhibit list at this
time. However, any and all exhibits which Plaintiffs or their
witnesses intend to use at trial will be provided to Defendant
prior to trial. Further, Plaintiffs reserve the right to use
any exhibit on rebuttal.
7. SETTLEMENT NEGOTIATIONS:
On June 17, 1996, Plaintiffs served a detailed demand
upon the Defendant's insurance carrier for $12,000 to settle
the case. In September 1996, the Defendant's carrier
requested updated photographs of the Plaintiff's injuries. In
November 1996, the Plaintiffs provided the carrier with
updated injury photographs and an updated medical report from
4
the Plaintiff's treating physician.
Characterizing this case as a "nuisance", the carrier
offered $3,000.00 to settle. In March 1997, Plaintiffs asked
the carrier to reconsider their settlement offer which they
declined to do. As a result, suit was initiated by Writ of
Summons on July 14, 1997.
The case was referred to Defendant's counsel who made a
last and final offer of $3,500.00 to settle the case.
Although that offer was subsequently rejected by the
Plaintiffs, the Plaintiffs are still predisposed to settling
this case without litigation.
8. OTHER MATTERS OF SPECIAL CONSIDERATION:
On September 24, 1997, the Defendant's attorneys took the
oral depositions of the Plaintiffs and their daughters. The
deposition transcripts were received by Plaintiffs' counsel on
October 24, 1997. On November 3, 1997, Plaintiffs furnished
Defendant's counsel with Answers and Responses to the
Defendant's Interrogatories and Document Requests.
Without the courtesy of a call to discuss when the case
might be ripe for trial, on September 30, 1997 the Defendant's
counsel filed a Praecipe to list the case for trial for the
February 2, 1997 (sic) term. Plaintiffs' counsel immediately
filed an Objection And Motion To Strike Case Listing. That
Motion is still pending before this Court for disposition.
For all the reasons contained in the pending Motion, the
Plaintiffs will be seriously prejudiced should they be made to
try this case at the February 1998 Term.
5
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THERESA M. SOUDERS and
GERALD R. SOUDERS,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-3786
CIVIL ACTION - LAW
PORT DARE d/b/a PETLAND,
Defendant
JURY TRIAL DEMANDED.
ANSWER
AND NOW, comes Defendant, Port Dare d/b/a Petland, by and through his allomeys,
MARTSON, DEARDORFF, WILLIAMS & OTTO, and avers as follows in answer to Plaintiffs
Complaint:
PARTIES
1-2. Denied. Plaintiff is without knowledge and infonnation sufficient to fonn a belief
as to Plaintirrs names, age or residency, and the same is therefore denied.
3. Admilled.
FACTS
4. Admilled.
5. Denied. After reasonable investigation, Defendant is without knowledge or
infonnation sufficient to fonn a belief as to whether Plaintiff eame into his store on July 24, 1995,
or, if she did, the reasons for it.
6. Denied. No searlet macaw owned by Defendant ever allacked anyone.
COUNT)
T.M. SOUDERS v. PETLAND
(Negligence)
7. Paragraphs I through 6 hereof arc incorporated herein by reference thereto.
8. Denied. No scarlet macaw owned by Defendant was ever violent or vicious or had
a propensity to allack, bite or assault persons without provocation or reason.
9- 10. Defendant denies each and every allegation of negligence made by Plaintiff, both
specifically and generally in accordance with Pa. R.C.P. 1029 (e).
II. Denied. Aner reasonable investigation, Defendant is without knowledge or
inlonnalion sufficient to fonn a belief as to the injuries. if any, suffered by Plaintiff.
WHEREFORE, Defendant demands judgment against Plaintiff.
COUNT II
T.M. SOUDERS v. PETLAND
(StrIct Liability)
12. Paragraphs I through II hereof are incorporated herein by reference thereto.
13. Denied. It is denied that a scarlet macaw has the propensity to bite or allaek without
provocation or reason.
14. Denied. Paragraph 6 hereof is incorporated herein by reference thereto.
15. Denied. Aner reasonable investigation, Defendant is without knowledge or
information sufficient to fonn a belief as to the injuries, ifany, suffered by Plaintiff.
WHEREFORE, Defendant demands judgment against Plaintiff.
COUNT III
T.M. SOUDERS v. PETLAND
(Exemplary Damages)
16. Paragraphs I through IS hereof are ineorporated herein by reference thereto.
17. Denied. Paragraphs I through 15 hereof are incorporated herein by reference thereto.
By way of further answer, all of Defendant's birds are properly caged and restrained, and proper
notice regarding the birds are prominently displayed.
18. Denied. Paragraphs I through 17 hereof are incorporated herein by reference thereto.
This allegation is denied as a conclusion oflaw to which no answer is required. To the extent an
answer is required, it is denied that Plaintiff is entitled 10 exemplary, or any other kind, of damages.
WHEREFORE, Defendant demands judgment against Plaintil1..
COUNT IV
G.R. SOUDERS v. PETLAND
(Loss of Consortium)
19. Paragraphs I through 18 hereof arc incorporated herein by reference thereto.
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THERESA M. SOUDERS and
GERALD R. SOUDERS,
I'laintif1s
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
NO. 97-3786
CIVIL ACTION - LAW
PORT DARE d/b/a I'ETLAND,
Defendant
JURY TRIAL DEMANDED.
DEFENDANT'S ANSWER TO PLAINTIFF'S OBJECTION AND
MOTION TO STRIKE CASE LISTING
AND NOW, comes Defendant, Port Dare d/b/a Petland, above named, by and through his
allomeys, MARTSON, DEARDORFF, WILLIAMS & 011'0, and responds as follows to Plaintirrs
Objection and Motion to Strike Case Listing:
I. Admitted only that Plaintiffs commenced this action by Writ of Summons on July
14,1997. Defendant has no knowledge of Plaintiffs' purpose in tiling the Writ of Summons other
than to commence an action against Defendant in an effort to collect more money than was
generously offered by Defendant's insurer.
2. Denied. Plaintiffs' counsel was unequivocally infonned that the generous offer of
$3,500.00 by Defendant's insurer was final, and it was in direct response to that that Plaintiffs tiled
their Complaint.
3. Admitted.
4. Admilled.
5. Admilled.
6. Admitted.
7. Admilled. By way of further answer, it is admitted there was a typographical error
that the trial tenn beginning February 2, 1998.
8. Denied. This case is ready for trial, and, if not now, il will certainly be ready by
February 2, 1998. In specific response to Plaintiffs' allegation, Defendant avers:
a. Denied. Defendanl's eounsel conferred with Plaintit'ls' counsel at the date
of the depositions on September 25, 1997 with regard to the trial.
Defendant's counsel suggested the case be submitted to arbitration; however,
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5. On September 25, 1997, Defendant's counsel deposed
the Plaintiffs and two (2) of the Plaintiffs' minor children.
6. On September 30, 1997, Defendant's counsel served
the Plaintiffs with Defendant's Request For Production of Documents
and Defendant's First Set of Interrogatories.
7. On or about September 30, 1997, Defendant's counsel
filed a Praecipe For Listing Case For Trial for the February 2,
1997 (sic) term and, certified that II [tlhis case is ready for
trial."
8. Defendant's counsel has improvidently and
prematurely listed this case for trial and, thus the case should be
stricken for the following reasons:
(a) Defendant's counsel listed this case without
conferring with Plaintiffs' counsel;
(b) Plaintiffs will not be ready for trial because
they have not completed and do not expect to
complete their discovery by the February 1997
(sic) term;
(c) Plaintiffs will be seriously prejudiced if made
to present their case before they have been
given the opportunity to fully prepare their
case;
(d) Plaintiffs' counsel has a pre-existing schedule
conflict in as much as counsel's Christmas
holidays are spent on vacation with family out
of the Harrisburg area, thus making it
impossible to attend the call of the list and
2
.
the pre-trial conference scheduled for December
30 and January 2, 1997 (sic) respectively.
WHEREFORE, the plaintiffs, for all of the foregoing
reasons, respectfully request that this Honorable Court grant their
motion and enter an order striking the above titled case from the
Court's trial list.
RICCI & TANEFF
Dated: October 3, 1997
, JJ
By: " t(l1""
Paul Taneff, Esq.
Sup. Ct. No. 63777
4219 Derry Street
Harrisburg, PA 17111
(717) 564-5833
Attorneys for plaintiffs
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3