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SHERIFF'S RETURN - REGULAR
CAse NO: 1997-07065 r
COMMONWEALTH OF PENNSYLVANIA I
COUNTY OF CUMBERLAND
WINDEMAKER EARL A
VS.
KREITZER ALAN ET AL
TIMOTHY REITZ
CUMBERLAND C~unt.y, Pennsylvania,
to law, says, the within ~T OF
upon SILVER SPRING SPEEDWAY ING
defendant, at 1015:00 HOURS, on the 29th day at December
1921 at 6416 CARLISLE PIKE
MECHANICSBURG. PA 17055
_' Sheriff 'Jr D'l'puty Sheriff of
who being duly sworn according
SUMMONS was served
County, Pennsylvania, by handing
a true and attested copy of the
.CUMBE;RLAND
to ALAN KREITZER, OWNER
WRIT OF SUMMONS
and at the same time directing !li.!!. attention to the contents thereof.
Sheriff's Costs:
, Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
2.00
So anavers:. "?
r'~ ~..:;..-v...".,..,..C ,-:;.1f''-;, .
.~ ~'t..E
R. Thomas KLine, ::iher 11
$8.00 IRWIN MCKNIGHT & HUGHES
12/29/1997 . :?}l
..,.- - -r/ / <' ~
by dj/#4//~.
~puTY Sher
Sworn and subscribed to before me
this ~I[;. day of A.Ru~....-t...-
19 ?1 A.D.
-~ r;t~~~hr$'
the
:-iTA TEMENT OF FACT~
The rccord inthc prcscnt cusc, for purposcs of considcrution of dclcndunts'
motion,' consists of plllintill's compluint, delcndunts'unswcr with new multcr, und
delendunts' motion lor summury judgmcnt. Altuchmcnts to the motion tor
summury judgment consist of u copy of pluintiffs compluint, un uftiduvit of the
individuul detcndunt, 1I Icltcr Irom u survcyor stllting thut "[i]t is ruthcr obvious
thut [pluintift] tell somcwhere off of the Speedwuy property," und u survey mup
purporting to show thut the lillI sitc wus outside the boundury line of thc "Silver
Spring Speedwuy." The afliduvit stuted thut thc property where pluintiffs lillI
ullegedly occurred wus owncd by u nonpurty, that neither hc nor "Silver Springs
Speedway" owned this ground, lInd thut hc had no property intercst in, or
maintenance responsibility for, the area,
Plaintiff's complaint, in pertincnt part, may bc summarized as follows:
Pluintiffis.Earl A, Windcmukcr, a 65-ycar-oldrcsidcnt of Carlisle, Pennsylvunia.
Defcndant Alan Kreitzer is the owner of the Silver Spring Antique and Flea
Market in Mcchanicsburg, Pennsylvania. Dcfcndant Silvcr Spring Speedwuy,
Inc., is the owner of the property whcre Mr. Kreitzcr conducts business.
On De~ember 24, 1995, as u business invitee, plaintiff slippcd on ice ut the
entrunce to 1I parking lot serving the Silver Spring Speedway property, injuring his
shoulder. Plaintitl"s accident was a result of dcfcndants' improper maintenance,
I See Pa. R,C.P. 1035.1.
2
DlSClJSSIill!
Pcnnsylvaniu Rulc of Civil Proccdurc 1035.2 statcs as lbllows with rcspcct
to motions for summary judgmcnt:
[ulner thc rclcvunt plcudings urc closcd, but within such
timc as not to unrcusonubly dcluy trlul, uny purty muy movc
for summury judgmcnt in wholc or in purt us u muttcr of law
(I) whenevcr thcrc is no gcnuinc issuc of uny matcriul
fact as to u ncccssary clcmcnt of thc cuusc of uction or
defensc which could bc cstublishcd by additional discovcry or
expcrt report. or
(2) if, aner the complction of discovery rclcvant to thc
motion, including thc production of cxpcrt rcports, un advcrsc
party who will bcar thc burden of proof at trial has failed to
produce evidencc of facts cssential to thc causc of action or
defcnse which in u jury trial would requirc thc issucs to bc
submitted to a jury.
"Oral testimony alone, either through tcstimoniul affidavits or depositions,
of the moving party or the moving party's witnesscs, cvcn if uncontradicted, is
generally insufficient to establish the abscnce of a genuine issue of material fact."
Note, Pa. R.C.P. 1035.2; see Pa. R.C.P. I035.3(b). On a motion for summary
judgment, a court "should not attempt to rcsolve conflicting contentions of fact or
conflicting inferences, which may be drawn from such facts.." Summary
judgment is an 'eyes-only' procedure, which does not allow for a factual hearing."
6 Standard Pennsylvania Practice 2d. ~32: 113. at 257 (1998).
Where an injury occurs off a defcndant's premises, but a legitimate
question exi$ts as to whethcr an eascmcnt may have existed for the bcnefit of thc
4
premises, upon which liubllity of the delcndunt could be predicated, summary
Judgment on the theory thut defcndunt had no responsibility ll)r the urea whenl the
accident occurred is genernlly not uppropriate. See, e,g" Blackmail v. Federal
Realty III vestment Trust,444 Pa, Super. 411, 664 A2d 139 (1995).
In the present case, although it may be that plaintiff will ultimately be
unable to prevail on 11 theory of Iiubility based upon defendants' use of adjoining
property for the benefit of the Silver Spring Speedwuy land, it is believed thut a
final disposition of the cllse on thllt issue at this time would be premature and
unsustainable, For this l'eason, the following order will be entered:
ORDER OF COURT
AND NOW, this 151h day of November, 1999, aller careful consideration of
defendants' motion for summary judgment, and for thc rellsons stated in the
accompanying opinion, the motion is denied.
BY THE COURT,
sl J. Weslev Olet...1r.
J. Wesley Oler. Jr., J.
Marcus A. McKnight. lIl, Esq.
60 West Pomfret Street
Carlisle, PAl 70 13
Attorney for Plaintiff
5
EARL A. WINDEMAKEI~,
I'llIlutlff
v.
: IN TilE COllltT OJo' COMMON I'I.EAS OJI
: CUMHImLANI) COUNTY, I)I':NNSYI.VANIA
:
: CIVil. ACTION - LA W
ALAN I(IU~ITZEI{ t/e/d/Il/11
SILVER SI'RIN(~ ANTIQUE ANO
(ll,EA MAI{K~:T aud SILVER
SPRING SI'EEDW A Y, INC"
Ocfcudlluts,
NO. 1J7.706t1 CIVIL TlmM
,JUI{Y TlUAL DEMANOEO
COMI)I.AINT
AND NOW, this 31 st day of August, I 99tl, comcs the Plaintill; EARL A.
WINDEMAKER, by his attomeys, Irwin, McKnight & Hughes, and makes the lollowing
Complaint against the Delendants, ALAN KREITZER Va/dlb/a SILVER SPRING ANTIQUE
AND FLEA MARKET and SILVER SPRING SPEEDWA V.INC., avcrring liS 1()lIows:
I.
Plaintiff is Earl A. Windemaker, a 65-year-old adult individual rcsiding ut 257 I'ctcrsburg
Road, Curlislc, Pcnnsylvanial71 03.
2.
Defendant Alan Kreitzer ("Krcitzer") is an adult individual trading and doing business liS
Silver Spring Antique and FIca Market, huving its principal place of business at 6416 Carlisle
Pikc, Mechanicsburg, Pennsylvania 17055.
3.
Dcfendant Silvl:r Spring Spccdway, Inc, ("Corporation") is a Pennsylvania corporation
having its principal place of business at6416 Carlisle Pikc, Mccolmicsburg, Pennsylvania 17055.
,
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-
CAMP HILL
PHYSiCIANS IMAGING CENlCR
4349 Cartlsle Pike
Camp Hili, PA 17011
(717) 731-1166
FAX (717) 731-1396
REFERRING PHYSICIAN I
Daniel Hely, M.D.
816 Belvedere Street
Carlisle, PA 17013
. .
NAME I
FILBtl
DOBI
DATB OF STUDY I
DIAGNOSIS I
WINDEMAKER, Earl
186-24-8080
05-31-33
12-28-95
840.4
Clinical Diagnosisl Rule out rotator cuff tear.
MAGNETIC RESONANCE IMAGING OF 'rHB LEFT SHOULDlas
T1 weighted axial and oblique sagittal, and proton density and T2
weighted oblique coronal images of._the left shoulder were
obtained.
COMMENTS: This study is somewhat abbreviated (the routine T1
weighted oblique coronal image was not performed) because of the
patient's discomfort.
Radiographs from Carlisle Hospital dated 24 December 1995 are
provided for correlation.
There is complete tear of the supraspinatus,tendon with
retraction. The humeral head is slightly elevated. There is
subacromial and subdeltoid bursal fluid signal. There is a small
amount of fluid in the joint capsule.
There is indistinct abnormal signal in the humeral head and neck
suggestive of diffuse marrow edema. The patient is reported to
be four days status post a fall, therefore, this is most
suggestive of a bony contusion. The possibility of a subtle,
nondisplaced fracture of the greater tuberosity cannot be
excluded.
.
The glenoid labrum and tendon of the long nesa of the biceps are
grossly normal. There is mild acromioclavicular joint
hypertrophy.
,
IMPRESSIONs 1. Complete supraspinatus tendon tear with
retraction. Small capsular fluid collection.
Providing Noo-ClouslTophoblc Mrll SeNlces
W1NDEMAKER, EARL A,
OPS
MR 11043603
DATE OF OPERATION:
SURGEON:
ASSISTANT SURGEON:
01111/96
Dr, Daniel P. Hely
None
t;Ib'f#'
PREOPERATIVE DIAGNOSIS: Rotator cuff tear. lelt shoulder,
POSTOPERATIVE DIAGNOSIS: Rotator cuff tear, lelt shoulder. {Wo.-/
t;.i1J.Il.:J
OPERATION: Repair of rolator cuff tear, left shoulde~ .,,1/10 tet)f> tvl.N.?
OPERATIVE DICTATION: Alter sallsfactory general anesthesia was achieved, the patient's left shoul-
der was prepped end draped. He had buen placed In the beach chair poslllon prior to prepping and
draping, The Incision was made obliquely over the anterior aspect of the acromion sufficient for expo-
sure of the subacromial region Jut to the greater tuberosity. The Incision was extended through the
skin and subcutaneoua tissue using sharp dlssecllon. Hemostasis was assured. The deltoid was split
longitudinally and the fascia was taken off the anterior aspect or the acromion In a 'T' fashion. This
exposed the underlying rotator curf In the subacromial region. Palpating the undersurface of the acro- II f) I
mlon, only the anterior aspect showed any Irregularity. Partial acromlonectomy was done with a Yo" rI'"
osteotome and mallet, rasectlng the bottom of the acromion sufficiently to prevent further Impingement
at this site. The undersurface of the clavicle did not seem excessively Irregular. A small portion of this
area was resected as well with the 11," osteotome and mallet. Clearly, there was a massive rotator cuff
tear. The cuff had retracted proximally and was grasped with two Kocher clamps and advanced. This
area was debrided. The tear had been off the greater tuberosity and the tear was advanced to the
greater tuberosity and a trough was placed In the bone atlhe greater tuberosity using a Cobb gouge
and a mallet end a rongeur and curettes. Drill holes were placed In the greatar tuberosity and 111 vlcryl
sutures were placed Into the rotator curf, three In number, In a modified Kessler fashion and brought
out through the drill holes In the greater tuberosity. They were then tied down onto themselves with
the arm In abduction, bringing the rotator cuff to the greater tuberosity. Satisfied that the repair of the
cuff was stable and that the arm could be dropped down to the side without excessive tension on the
cuff. the wound was Irrigated a final time. The deltoid was reapproxlmated to the acromion through the
cuff of soft tissue left dorsally using Interrupted sutures or 0 vlcryl, 0 vlcrylto close the deltoid muscle
fibers to themselves, 2-0 vlcryl to close the subcutaneous tissue, and staples to close the skin. A
sterile dressing and 30ft wrap were applied at the completion of the procedure and the patient was
awakened without mishap and returned to the recovery room In satisfactory condition. An abduction
splint was placed on the left arm prior to closure and a sterile dressing was applied at the completion
of the procedure as well.
DPH/mts
0: 01/11/1996 - 11:09 arn
T: 01/12/1996
cc Dr. Daniel P. Hely (x2)
(
Daniel P. Hely,
"P~ -j...:rHIII'IP. lARl
t1/1l/1( ",) P[TlII:,"~Hr, PO
r',/IIIlJ :111LI5U. PA
"ILY.:INIfL P
11~1320 O~3b03
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Page 1 of 1
ORIGINAL
CARLISLE HOSPITAL
OPERATIVE REPORT
//
.,--.
,
W1NDEMAKER, EARL A,
OPS
MR 1V043603
DAlE DISCHARGED: 01/13/1996
~'
ADMISSION DIAGNOSIS: Left rolalor cuff tear.
DISCHARGE DIAGNOSIS: Left rotator cuff tear,
OPERATION: Repair 01 left rolator culf tear. Acromloplasty.
DATE: 01/11/96
SURGEON: Dr, Rodgers
HISTORY AND PHYSICAL EXAM: As on the chart.
HOSPITAL COURSE: The patient was brought In to the Day Surgery Center and underwent a repair
01 a left rotator cull tear on 01/11/96. Posloperatlve day #1 he was In a significant amount of pain as
expecled but was neurovascularly Inlacl He was continued on Injectable analgesic, and kept In his
abduction barrel splint. On 01/13/96 the patient was much more comlortable, able to tolerate a lull diet
and tolerating po pain medications. His dressing was clean, dry and Intact. He was discharged to
home to lollow-up with Dr. Hsly in the office next wsek for a postoperative check.
,ICRlvfn
0: 01/13/1996 - 08:04 am
T: 01/1511996
cc Dr. John C. Rodgers
Dr. Steven L. Hatleberg
o;r: ".D
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7P$ "'1.1fMU[P. fARl A ~
CIIII/1b ,'q PlTOSAlllC RD'
C'J/IIIlJ :ARLISLr PA
flflY.~ANI(L P .
1181320 O~3b03
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Page 1 of 1
ORIGINAL
CARLISLE HOSPITAL
QJSCHARGE SUMMARY
-
PATIENT NAME
.
12/27/95 OV:
./10/96 OV:
.
.
Orthopaedic Surgery of Carlisle, L'ID.
Daniel P. Bel)', I\1,D.
John C. Rodgers, I\1.D.
OFFICE RECORDS
WINDEl1AKER, rEarl
DATE 01' lIlRTII 5/31/33
PAGE H 1
See letter to Pmn Brothers, M.D. E.R. DPH:nes
Mr. Windemaker has not gained any abduction. He has motion of the shoulder
to 45. and persistent pain at the greater tuberosity.
PLAN: Rotator cuff. repair. I have explained the procedure and the need for
an abduction pillow to Mr. Windemaker. He understands and wants to proceed.
DPH:nes
WINDE1-1AKER, Ear]
(3348)
MRI confirms the diagnosis of rotator cuff tear. Earl has gained some mobility in
his shoulder but he is still unable to abduct past 30.. Motion is w/o pain under 30.
but external rotation and internal rotation are not acutely painful.
IMPRESSION: MRI confirms rotator cuff tear. I have discussed the pr.oblem at length
w/ Earl and advised he seriously consider surgical repair of the rotator cuff. His
family has encouraged him to seek a 2nd opinion. He will F.U. IVith us after he has
had this. DPH:nes
1/13/96 SURGERY: Repair rotator cuff, left. Acromioplasty.
1/3/96 OV:
1/17/96 OV:
1/24/96 OV:
2/9/96 OV:
3/18/96 OV:
1 week post rotator cuff repair. Pain seems to have improved.
PLAN: Continue in abduction sling.
F.U. 1 week suture removal. DPH:nes
Earl is taken out of the airplane splint.
PLAN: Begin gentle motion exercises. Supervised P.T. on 5X a week basis,
X 2 weeks. Clean surgical wound tcx1ay.
F.U. apoointment at that point. Assess progress. DPH:nes
1 month post rotator cuff repair, Earl has limited active'motion to 60.. He
is able to abduct to 90. in the supine position, but only to 60. against
gravity. No tenderness on palpation. P.T. has been going well.
PLAN: Continue in P.T. 3X a week. F.U. 4 weeks re-exam. DPH:nes
No. x-ray.
Earl is continuing w/ P.T. He has pain intermittently, but not nearly as
severe as what he hc1d had previously. He has limited motion in all planes,
but passive motion shows active abduction to 90..
PLAN: Continue P.T. to improve motion. F.U. 4 weeks re-exam. DPH:nes
OFFICE RECORDS
..
PATIENT NAME
WINDE1-lAKER Earl
DATE 01' IIII\TII 5/3l/33
I'AGEH
119/96 OV:
3 months post rotator cuff repair, still has limited motion but definIte pain
relief. Abduction to 60. with external rotation to 45.. No tenderness on
palpation.
PLAN: Continue P.T. LU. 1 month re-exam. DPH:nes
'.' .'
i/3/96 OV:
7/l/96 OV:
Earl's shoulder continues to be painful. There is crepitus with motion.
No tenderness on palpation laterally. NV status is unchanged. There is
limited abduction and rotation.
IMPRESSION: 5 months post rotator cuff surgery with persistent difficulty.
PLAN: Continue with P.T. F.U. 4 weeks. Anticipate return to work at
that time. DPH:nes
Earl is 6 IOOnths post injury. He has had steadl( improvement w/ P.T. but
seems to have plateaued. He has no pain at rest, but limited abduction and
forward flexion. No tenderness on Olrect palpation. forward flexion to 120.
Abduction to 80.. Definite weakness in all muscle groups. NY status normal.
IMPRESSION: Rotator cuff tear.
PLAN: Continue P.T. I have discussed w/ Earl that he will probably not
gain enough strength to return to work at full activity, and that a
limited duty position will be necessary. He will discuss this with
his employer.
F.U. 1 month; anticipate return to work at that point. DPH:nes
Steady progress. Still some crepitus at the shoulder. Motion is limited
but pain-free.
PLAN: Gentle motion exercises. Increase, based on pain.
F.U. 1 month re-exam. After this may return to work on 9/3/96.DPH:nes
Earl has compl.eted his P. T. He continues to have limitation in alxluction and
rotation. ~le continues to have pain but not nearly as severe as he did before
his surgery. He takes 2 Tylenol daily for pain control. He awakens inter-
mittently land can't sleep on the left shoulder. He has difficulty putting
on his shirt, leading the left ann into the shirt first, and puts his belt
on his pants and then puts on his pants. .
.
Exam shows active abduction to only 60.. Forward fl~~iQn is s!mil~lv
limited. There is no pain with palpation over the ale Joint, but tnete is
tenderness over the greater tuberosity arKl posteriorly. NV status is other-
wise nOt11\al.
IMPRESSION: Persistent pain and limited functicn, now 8 months post rotator
cuff repair and acromioplasty.
PLAN: Limited duty at work. Continue Tylenol. l'.U. 2 months re-exam. DPH:nes
/2/% OV:
1/3/% ov:
.
,
9. Denied, After n rensonnble investigntion, IInswllring defondnnts 1\1'0 without
knowledge o~' infOl'mation suflicient to form II boliof ns to the truth 01' flllsity of the
IIverments contnined in this pllrngrllllh nnd, tlllH'llforll, answlll'illg defendants deny
the allegations contained therein,
10. Denied. Mter a l'easonable investigation, answering defendants al'e without
knowledge 01' information suflicient to form a belief ns to the truth 01' falsity of the
averments contained in this pnl'l\graph nnd, therefore, answering defendants deny
the allegations contained therein.
11. Denied. After a reasonnble investigation, answering defendants are without
knowledge or informntion sufficient to form a belief ns to the truth 01' falsity of the
averments contained in this paragrnph and, therefore, nnswering defendants deny
the allegations contained therein.
12. Answering defendnnts hnve no knowledge 01' means of ascertaining the truth
or falsity of the averments l'especting the injuries, sufferings and/or damages
alleged to have been sustained by Plaintiff and the same arc, accordingly, denied
and strict proof thereof is demanded at the time of trial.
13. Answering defendants have no knowledge 01' means of nscertaining the truth
or falsity of the averments respecting the injuries, sufferings andlor damages
alleged to have been sustained by Plaintitf and the sallie 1\1'e, accordingly, denied
Bnd strict proof thereof is delllundl!d ut thl! tillle of triul.
14. Answering defendants have no knowledge 01' lIIeans of ascertaining the truth
or falsity of the uvcrlllents respecting the injul'ies, sufferings and/or damagcs
alleged to have been sustained by Pluintiff und the sUllie aro, uccordingly, denied
and strict proof thereof is demanded at the time of trial.
15, Answering defendants huve no knowledge 01' means of asct'rtaining the truth
or falsity of the avcrments respecting the injuries, sufferings and/or damages
alleged to have been sustained by Plaintiff and the same are, accordingly, denied
and strict proof thereof is demandcd at the time of tl'ial.
16. Answering defendants have no knowledge or means of ascertaining the truth
or falsity of the averments respecting the injuries, sufferings and/or damages
alleged to have been sustained by Plaintiff and the same aro, accordingly, denied
and strict proof thereof is demanded at the time of tl'ial.
17. Answering defendants have no knowledge or means of ascertaining the truth
or falsity of the averments respecting the injuries, sufferings and/or damages
alleged to have been sustained by Plaintiff and the same arc, accordingly, denied
and strict proof thereof is demanded at the time of trial.
22. Denied, 'l'he allegations containcd in this IHU'lIg1'lIph l\l'e conclusions of law
to which no responsive pleading ill requircd PUl'IlIHlI1t to thll Pllnnsylvanill Rules of
Civil Pl'oceduro nnd 11I'0, therefore, dcnied. By way of furthm' l'llsponse, Defcndnnts
Kreitzer nnd Silver SIIl'ings Speedway, Inc. spccifically deny ench nnd every
allegations contained in pnragrnphs (a) through (d) and assort, to the contmry, that
Defendants acted carefully and reallonably nt all time:; relevant to this matter.
23. Denied. The allegations contained in this pal'llgraph are conclusions of law
to which no responsive pleading is mquired pursuant to the Penn:;ylvania Rules of
Civil Procedure and arc, therefore, denied. By WilY of further answer, answering
defendants have no knowledge or mcans of ascertaining the truth or falsity of the
averments respecting the injuries, sufferings and/or damages alleged to have been
sustained by plaintiff and the same arc, accordingly, denied and strict proof thereof
is demanded at the time of trial.
24. Denied. The allegations contained in this paragraph arc conclusions of law
to which no responsive pleading ill required pursuant to the Pennsylvania Rules of
Civil Procedure and are, therefore, denied. By way of further answer, answering
defendants have no knowledge or means of ascertaining the truth or falsity of the
averments respecting the injuries, sufferings and/or damages alleged to have been
sustained by plaintitl' and the same are, accordingly, denied and strict proof thereof
is demanded at the time of trial.
25. Denied, The nllegations contained in thitj parng1'llllh n1'e conclusions of Inw
to which no l'esponsive plelHling itj required plU'smmt to the Pennsylvania Rules of
Civil Pror.edure and are, therefore, denied, 13y wny of further antjwe1', nnswering
det'endllnts have no knowledge or means of nscertaining the truth 01' falsity of the
averments respecting the injul'ies, suffel'ings and/or damages alleged to have been
sustained by plaintiff and the same are, accordingly, denied and strict proof thereof
is demanded at the time of trial.
26. Denied. The allegations contained in this paragraph are conclusions of law
to which no responsive pleading is required plU'smmt to the Pennsylvania Rules of
Civil Procedure and are, therefore, denied, By way of further answer, answering
defendants have no Imowledge 01' means of ascertaining the truth 01' falsity of the
averments respecting the injuries, sufferings and/or damages alleged to have been
sustained by plaintiff and the same are, accordingly, denied and strict proof thereof
is demanded at the time of trial.
27. Denied. The allegations contained in this paragraph are conclusions of law
to which no responsive pleading is required pursuant to the Pennsylvania Rules of
Civil Procedure and are, therefore, denied. By way of further answer, answering
defendants have no knowledge or means of ascertaining the truth or falsity of the
averments respecting the injuries, sufferings and/or damages alleged to have been
13, 'l'he situs of tho dllfllCll'llfOl'rlld to in Plninlilrll Complninl ill n dl'ivewny nnd
Ilnl'king lot, nnd the 1'llllponllibility 1'01' illl CIII'!!, IIlUintl!lIlIllCll nnd Ilupervision rests
exclusively upon the other IHu.ties, nnd IInllwcl'ing dcfcndnnts I\l'e in no wny
responsible for its condition., Answel'ing defcndnnts, therefore, nl'e immune from
linbility on the cause of nction declnred upon,
NEw.MATI.ER.c.ItQSBC;I,AlM...rJJHSUANT 1'0 PA.R.C.P. 2252(d)
If the nllegations contnined in Plain till's COlllplaint are proven at the trial of
this action, which nllegations are hereby specifically denied, answering defendants
contend that other pOl'sons 01' parties to this litigation were careless, reckless,
negligent, grossly negligent, 01' otherwise failed to comply with the applicable
standards of care for their obligations.
If the Plaintiff sustained injuries and damages as alleged, those injuries and
damages WOl'e due solely to the negligence, carelessness and recklessness ')f the
co-defendant, Silver Springs Antique and Flea Market, and were in no way due to
any acts or omissions on the pm't of answering defendants.
WHEIU<:FOHE, co-defendant. Silver Springs Antique and Flea Market, is
liable to the Plaintiff or, in the altemative, is liable over to the answel'ing
.,
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RA WLE & liE
By: Paul Lan' .
I.O, No,: 722
The Widener B .
One South Penn Square
l)hlladelphla. Pa 19107
Attorney for Alan Kreitzer, Sliver
Springs Antique and Flea Market
and SlIver Springs Speedway
I
I,
I
EARL A. WINDEMAKER
PI.hlllff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
NO. 97-7065
ALAN KREITZER II. d/b/. SILVER
SPRINGS ANTIQUE AND FLEA
MARKET AND SILVER SPRINGS SPEEDWAY
Defend.",
CIVIL ACTION
SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS
MOTION FOR SUMMARY JUDGMENT
Argument:
A. Plalntlfrs case must be dismissed because he Is In violation of Rule 1035 of
the Pennsylvania Rules of Civil Procedure.
Rule 1035,3 of the Pennsylvania Rules of Civil Procedure requires that a response to a
Motion for Summary Judgement be filed within 30 days after service of the motion and
provides for supplemt:ntation of the record. In the instant matter, defendants filed their Motion
for Summary Judgment with tht: court and served a copy on plaintiff on or about May 6, 199'.
Sl:l: true and correct copy of cover letter for Summary Judgement Motion hereto attached as
Exhibit A, Plaintiff's only response to defendants' motion was Plaintiff's Brief in Opposition
to the Motion Made by Defendants for Summary Judgment which was filed approximately 90
days after service of the Summary Judgment Motion. Additionally, at no time did plaintiff
attempt to communicate with this Honorable Court or defense counsel to request additional
omm.lll
.
time to respond, Defendunt should he grunted sUlllmury judgment becuuse of plnillliff's
disregurd for the Pennsylvuniu Rules of Civil Procedure,
B. Pllllntlfrs claims must be dismlsscd becllusll he hils flllled to present any
affirmatlvc cvldencc rcqulrcd under Rulc 1035 of thc Pennsylvania Rules
of Civil Procedurc.
Plaintiff hus l1Ied u Brief in Opposition to the Motion by Defendant for Judgment
without required record under the Pennsylvania Rules of Civil Procedure. Rule 1035, I of the
Pennsylvania Rules of Civil Procedure states in pnrt:
[al "record" includes any pleading, depositions, answers
to interrogatories, admissions and affidavits and reports by
an expert witness...
Plaintiff's Brief in Opposition to the Motion Made by Defendant for Summary Judgment
includes theory argued by plaintiff's counsel with no supportive record at all, which is in
violation of the Pennsylvania Rules of Civil Procedure . ~ true and correct copy of
Plaintiffs Brief in opposition to the Motion Made by Defendant for Summary Judgment hereto
attached as Exhibit B.
Moreover, plaintiff is now suddenly, without supportive evidence, making
misrepresentations to the court that an easement is sharedby defendants and an adjacent land
owner, Plaintiff at no time prior to his response to Defendants' Motion for Summary
Judgement averred that such an easement exists. In fact, such an casement does not exist
between defendants' pr.operty and the adjacent parcel of land. ~ true and correct Affidavit by
Alan Kreitzer hereto attached as Exhibit C.
03!49H,IOI
As argued previously with Defendants' Motion for Summary Judgment, a sufl1cient
boundary survey was performed by Surveyor Carl Poffenberger. with all parties present, and it
was determined, after plaintiff indicated where incident occurred, that the "approximate fall
area" was completely off Defendants property. Sl:l: previously submilled Memorandum of
Law in Support on Motion for Summary Judgement as Exhibit C and Exhibit D.
WHEREFORE, defendants, respectfully request that this Honorable Court grant their
Motion for Summary Judgement and dismiss all claims l1led against said moving defendants.
Respectfully Submilled.
By:? ~ /
Paul Lancaster dams, J ., Esquire
Allorney for Defendant,
Alan Kreitzer, Silver Springs
Speedway and Silver Springs
Antique and Flea Market
Rawle & Henderson, LLP
The Widener Building
One South Penn Square
Philadelphia, PA 19107
(215) 575-4200
03249113.01
.
[A) non-moving party must adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof such that
a Jury could return a verdict in his favor. Failure to adduce this evidence
establishes that there Is no genuine Issuc of material fact, and the moving
party Is entitled to Judgment as a mailer of lnw.
Ertel, 544 Pa. at 101-02, 674 A.2d at 1042. This reformulation of the summary Judgmelll
standard places the burden squarely on the non-moving pnrties to come forward with evidence
demonstrating the existence of a genuine issue of material facl. It Is not sufficient for the
responding parties to "rest on the mere allegations or denials of [their) pleadings."
Pennsylvania Rules of Civil Procedure 1035.3.
B. Moving Dcfcndants arc not Iiablc to plaintiff fOl' injuries hc sustalncd on an
adjaccnt lot,
Plaillliff was mistaken as to who was in exciusivc possession, managementnnd control
of the actual property where the incident occurred. On July 10, 198, Defendant owner Alan
Kreitzer, visited the alleged scene of the incident with former counsel (Monica O'Neill),
Plaintiff and his allorney Marcus McKnight, and a surveyor, Carl Poffenberger. & Exhibit B
at , 3. During the visit, Plaintiff indicated to everyone present where he fell during the
incident. ~ Exhibit B nt , 4. The location pointed out by Plaintiff was actually the property
of an adjacent lot not owncd by Defcndants. Sl:l: Exhibit D at , 4. A sufficient boundary
survey was performed by Surveyor Carl Poffenberger and it was determined that the area
indicated by Plaintiff as the "approximate fall area" was completely off Defendants property.
Sl:l: Exhibit C and Exhibit D.
029228601
EARL A, WINDEMAKER,
Plaintiff
: IN TIm COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY,I'ENNSYLV ANIA
v.
CIVIL ACTION - LAW
ALAN KREITZER, t/ald/b/a
SILVER SPRING ANTIQUE AND
FLEA MARKET and SILVER
SPRING SPEEDWAY, INC"
Defendants,
NO, 97.7065 CIVIL TERM
PLAINTIFF'S BRIEF IN OPPOSITION TO
THE MOTION MADE BY DEFENDANT
FOR SUMMARY .JUDGMENT
In opposition to Defendant's, Alan Kreitzer, tla/d/b/a Silver Spring Antique and FIIlII
Market and Silver Spring Speedway, Inc., Motion for Summary Judgment, Plaintiff, by and
through his attorney, Marcus A. McKnight, III, puts forth the following opposition to the
Preliminary Objection:
SL\TEMENT OF CASE
On or about December 24, 1995, Plaintiff was a business visitor to the Silver Spring
Antique and Flea Markel. On this same date, there existed ridges of ice located at the entrance of
the parking lot located on the Silver Spring Speedway property, wl1kh location has a slight
incline or slope. As Plaintiff was attempting to leave the Silver Spring Antique and Flea Market
and make his way to his automobile, the ridges of ice caused Plaintitl'to slip, stumble, fall and
strike the ground, resulting in serious and permanent injuries. As a result of the fall, Plaintiff
temporarily lost consciousness and became unaware of his surroundings. Plaintiff suffered a tom
rotator cuff in his left shoulder and marrow contusion, forcing Plaintiff to undergo surgery. For
the majority of the next year, Plaintiff was required to undergo extensive rehabilitation
treatments thlOt improved Plaintiff's condition, but Plaintill'will permanently have only limited
motion of his left arm.
Furthcr, Dcfendant holds a right of wuy fllr ingrcss und cgress to U.S. Routc II, known
as Carlislc Pikc. The location whcrll Plalntiff!:lippcd and lell was onthut propcrty thut is purl of
thc right of way hcld by Defendant extcnding to U.S. Routc II.
Plalntlfflilcd a complaint In thc Court of Co mill on Picas ol'Cumbcrlund County on
August 31, 1998 against Dcfendants Alan Kreitzer, tla/d/b/a Silvcr Spring Antiquc and Flea
Market and SlIvcr Spring Spccdway, Inc., c1uiming that Pluintlft's injurics wcrc causcd by
Dcfendants' negligcncc, carelcssncss, und recklessness inl.ot keeping thc property frec from
ridges of ice and tor not wuming the business visitors ofthc dungerous condition. Defendants
denied liability on the grounds thut Plaintiff did not slip und filII on Defcndant's property, and
filed a motion tor Summary Judgmcnt, upon which this urgument is written.
ARGUMENT
I. General law regarding the standard for granting Summary Judgment.
The standard of review for a Summary Judgment is subject to Pa. Rule of Civil
Procedure, Rule 1035. Rule 1035.2 states that a summary judgment may be granted:
(I) whent:ver there is no genuine issue of any material fact as to a ner.essary
element of the cause of action or defense which could be established by
additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the
production of expert l'eports, an adverse party who will bear thc burden of
proof at trial has failed to produce evidence of facts cssential to the causc of
action or dcfensc which in a jury trial would require the issues to be submitted
to a jury.
The Pennsylvania Supreme Court has ruled that for a non-moving party to withstand a
motion for summary judgment, the non-moving purty must adduce sufficient evidcnce on an
issuc in a case whcre he bears the burden of proof so that a jury could return a verdict in his
favor. Washl[ll!ton v. Baxter, 553 Pa. 434, 719 A.2d 733 (Po, 1998). If the non-moving party
fails to prescnt sufficient evidence, the moving party is entitled to judgment as a matter of law
2
bccausc thcrc is no gcnulnc issuc ofmlltcrllll fuet. /d. ut 737. Just us importuntly, in cxamining u
motion lor summary judgmcnt, thc Court must vlcw thc rceord inthc light most favornblc to thc
non-moving party, and "all doubts us to thc c1listcncc ofa gcnuinc issue ofmalcriallact must bc
rcsolvcd againstthc moving party." /d. Lastly, a summary judgment should only bc grantcd In
cascs that are frce und c1cur from doubt. /d.
In order tor the Dcfcndant's motion IlJr summary judgment to be dcnied, the Plaintiff
must only show thattherc is a doubt us to thc existcncc of u gcnuinc issuc of matcrial fact.
Defendant's motion for summary judgment should bc dcnied bccause thc casc ut bar does
contain a genuine issue of materiallact, the issuc of posscssion of thc land where I'laintill' fell.
II, Summary Judgment should be denied because the question of possession of the land
where Plaintiff fell Is an Issue of material fact to be decided by the Jury,
The trier of lact is to detcnnine if thc holder of un euscmcnt has "possession" of the land,
and this issue should not be determined by thc court in a summury judgment because it is un
issue of material fact. Leichter v, Eastern Realtv Co. 358 Pa, Super, 189,516 A,2d 1247
(Pa.Super. 1986). In Leichter, Acmc Markcts held an casement tor ingress and egress over a
portion of the land and the privilege for its busincss invitees to park in Eastern Realty's parking
lot. Eastern Realty had an agent that managed and maintained this parking area. Acme had its
own parking area as well, but on the night in question, Leichter parked in the area owned by
Eastern Realty. Subsequcntly, Leichter was mugged and died from a heart attack. Leichter's
executrix sued both Eastern Realty and Acme. The question before the appellate court was if
Acme was entitled to summary judgment for the liability of Leichter's death, who was an invitee,
because he was on adjacent land when the mugging occurred. Thll Superior Court held that
Acme was not entitled to summary judgment becausc the question of whcther the holder of an
easement is a "possessor" is a question for thc fact. finder. The court reasoned that the question
of whether an easement holder exercised requisite control and possession is a determination for
the jury and requires examination of the underlying facts as revealed by the cvidence. The court
further reasoned that this question of possession was a mixcd question of law and fact that is
3
withinthc provincc of n jury to dccidc. Thc court wcnl onlo Ilxplninthnlto dctcrminc if thc
cllScmcnt holdcr has "possession" ofthc Innd, thc jury must cxnminc (1) if thc holdcl' holds an
easemcnt and (2) thc manncr in which thc pnrty cxcrciscs thc prcrogntivc of that cllSement.
Following LelchtcI', thc Supcrior Court held thnt sununury judgmcnt should bc prccludcd
when therc is a qucstion as to whcthcr n purty is a "posscssor of Innd" with a duty to invitces
when an invitce is injurcd on thnt portion ofthc lund. IJlacl(1JI11ll v, Federal Renltv Investment
Ir.Ill!, 444 Pa. Super. 411, 664 A,2d 139 (Pa,Super 1995). In Blackmail, the PlaintilHcll in
the parking lot outside tlH: Northeast Shopping Ccntcr and injurcd her anklc. Plaintiff cluimed
that hcr fnll was the rcsult of a dcfcct in the purking lot. Dcfcndants held an easement for
ingress, cgress, and parking in thc parking lot, and further hnd a duty to share thc cost ofthe
maintenance of the parking lot. Plaintiff did not sue the owncr of thc parking lot, but sued thc
owncr and lessor of the shopping ccnter. The Dcfendants tiled for summary judgment because
they were not the owners of thc parking lot. The Superior Court dcnicd thc Defendant's motion
for summary judgment bccause the issuc of whcthel' thc holdcr of an easement has posscssion of
land is a question of fact for thc jury. Thc court detcmlincd thatthc Dcfcndants held WI
easement, butthc issuc of how the Dcfcndant excrcised thc prcrogative of thc eascment in ordcr
to be deemed a "possessor of land" still rcmaincd a qucstion of mlltcrial fact for thc jury. The
court bascd its decision on thc fact that the Detimdant hcld an eascment and that thc Dcfendwlt
had a duty to contribute to the maintenance of thc parking lot. Thc court further stated that a
holder of an easement is determined to be a possessor of land if he fits one of thc following
descriptions: I) he must be in occupation of the land with thc intent to control it, 2) hc must have
becn in occupation of the land with intent to control it ifno other party has done so suhsequently,
or 3) he is entitled to immediate occupation if neither of the other alternativcs apply.
Defendant should not be granted a summary judgment because, like both Leichtel' IInd
Blackmail, Defendant holds an easemcnt for ingress, egrcss, and parking on the land where
Plaintiff fell. Like the plaintilTs in both l.eichter and Blackmail, Plaintiff was a business invitee
who was injured on the property whcre Defcndant held 11/1 eascment. It is immaterial if
4
/'
,
,
EARL A, WINDEMAKER,
PlaIntiff
: IN TilE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LA W
v.
ALAN KREITZER, t/aldib//l
SILVER SPRING ANTIQUE AND
FLEA MARKET and SILVER
SPRING SPEEDWAY, INC"
Defendants.
NO, 97-7065 CIVIL TERM
PtAINTlFlT'S B~~~~ opr~::'~ION TO
nIE MOTION y ~y D~"'NiAm:
FOR SUMMAR UDG E l'
. In Opposition to Defendant's, Alan KreItzcr, tla/d/b/a Silver Spring Antique and FIca
Market and Silver Spring Speedway, Inc., Motion tor Summary JUdgment, Plaintill; by and
through his attorney, Marcus A. McKnight, III, puts forth the following opposition to the
Preliminary Objection:
ST ATEMENT OF CAS~
On or about December 24, 1995, Plaintiff was a business visitor to the Silver Spring
Antique and Flea Markel. On this same date, there existed ridges oficc located at the entrance of
the parking lot located on the Silver Spring Speedway property, which location has a slight
incline or slope. As Plaintiff was attempting to leave the Silver Spring Antique and Flea Market
and make his way to his automobile, the ridges of ice caused Plaintiff to slip, stumble, fall and
strike the ground, resulting in serious and pennanent injuries. As a result of the fall, Plaintiff
temporarily lost consciousness and became unaware of his surroundings. Plaintiff suffered a tom
rotator cuff in his left shoulder and marrow contusion, forcing Plaintiffto undergo surgery. For
the majority of the next year, Plaintiff was required to undergo extensive rehabilitation
treatments that improved Plaintiff's condition, but Plaintiff will pennanently have only Jimited
motion of his left arm.
.
Further, Defendant holds II right of way fllr ingress IInd egress to U.S. Route II, known
os Carlisle Pike. The location where Plllintlfl'slipped wId tell was on that property that is part of
the right of way held by Defendant extending to U.S. Roule II.
PlaintilTfiled a clllllplaillt in the Court ofColllmon Pleas of Cumberland County on
August 31 , 1998 against Defendants Allin Kreitzer, tla/d/b/a Sliver Spring Antique und Flea
Market WId Silver Spring Speedway, Inc., c111illling thllt Plaintiff's injuries were caused by
Defendants' negligencc, carel~ssness, and recklessness in not keeping the property free from
ridges of ice and for not waming the business visitors of the dangerous condition. Defendants
denied liability on the grounds that Plaintlfl'did not slip and tilll on Defendant's property, and
filed a motion for Summary Judgment, upon which this argument Is written.
ARGUMENT
I. General law regarding the standard for granting Summary Judgment.
The standard of review for a Summary Judgment is subject to Pa. Rule of Civil
Procedure, Rule 1035. Rule 1035.2 statcs that a summary judgment may be granted:
(I) whenever there is no genuine issue of any material fact as to a necessary
element of the cause of action or defense which could be established by
additional discovery or expert report, 01'
(2) if, oller the completion of discovery relevant to the motion, including the
production of expcrt reports, an adverse party who will bear the burden of
proof at trial has failed to producc evidence of facts essential to the cause of
action or defense which in a jury trial would require the issues to be submitted
to ojury.
The Pennsylvania Supreme Court has ruled that for a non-moving party to withstand a
motion for summary judgment, the non-moving party must odduc,e sufficient evidence on an
issue in a case where he beors the burden of proof so that a jury could return a verdict in his
favor. ~Inl!ton v. Boxte{, 553 Pa, 434, 719 A.2d 733 (Pa, 1998). If the non-moving party
fails to present sufficient evidence, the moving party is entilled to judgment as a matter of law
2
.
because there is no genuine issue of male rial fact. /d. lit 737. Just as importantly, in exanlinlng a
motion for summary judgment, the Court must view the record in the light most fuvoruble to the
non-moving party, and "ull doubts us to the existence ofa genuine issue of material faetmust be
resolved against the moving party." Id. Lastly, a summary judgment should only be granted in
cases that ure free and clear from doubt. ld.
In order fOl.the Delendant's motion for summory judgment to be denied, the Plaintiff
must only show that there is a doubt as to the existcncc of a genuine issue of matcriallact.
Defendant's motion for summary judgmcnt should be denied because the case at bar docs
contain a genuine issue ofmatcrial fact, the issue of possession of the land wherc Plaintifffcll.
II. Summary Judgment should be denied because the questIon of possession of the hmd
where PlaIntiff fl!lIls an Issue of material fact to be decided by the jury.
The trier offact is to determine if the holder ofan easement has "possession" of the land,
and this issue should not be determined by the court in a summary judgment because it is an
issue of material fact. Leichter v. Eastern Realtv Co, 358 Pa, Super. 189,516 A.2d 1247
(Pa.Super. 1986). In Leichter, Acme Markets held an casement for ingress and egress over a
portion of the land and the privilege for its business invitees to park in Eastern Realty's parking
lot. Eastern Realty had an agent that managed and maintained this parking area. Acme had its
own parking area os well, but on the night in question, Leichter parked in the area owned by
Eastem Realty. Subsequently, Leichter was mugged and died from a heart attack. Leichter's
executrix sued both Eastern Realty and Acme. The question before the appellate court was if
Acme was entitled to summary judgment for the liability of Leichtel"s death, who was an invitee,
because he was on adjacent land when the mugging occurred. The Superior Court held that
Acme was not entitled to summary judgment because the question of whether the holder of an
easement is a "possessor" is a question for the fact-finder. The court reasoned that the question
of whether an casement holder exercised requisite controlllnd possession is u determination for
the jury and requires examination of the underlying facts os revealed by the evidence. The court
ful1her reasoned that this question of possession was a mixed question of law and fact that is
3
.
within the province of ajury to decide. Thc court went on to cxplain that to determine ifthc
casement holder has "possession" of the IWld, thc jury must examine (I) Iflhe holder holds an
easement and (2) the manner in which thc party eXerciscs the prerogative of that easement.
Following Leichter, thc Superior Court hcld that summary judgment should be precluded
when there is a question as to whether a party is a "possessor of land" with a duty to invitees
when an invitee is injured on that portion ofthc land. Blackman v, Federal Reoltv Investment
Irmt,444 Po, Super. 411, 664 A.2d 139 (Pa,SuJler 1995). In Blackmail, the Plaintiff fell in
the parking lot outside the Northeast Shopping Centcr and injurcd her anklc. Plaintiff claimed
that her fall was the result of a defect in the parking lot. Defendants held an easement for
ingress, egress, and parking in the parking lot, and further had a duty to share the cost of the
maintenance of the parking lot. Plaintiff did not sue the owner of the parking lot, but sued the
owner and lessor of the shopping center. The Defendants filed lor summary judgment because
they wcre not the owners of the parking lot. The Superior Court denied the Defendant's motion
for summary judgment because the issue of whether thc holder of an easement has possession of
land is a question of fact for the jury. The court determined that the Defendants held WI
easement, but the issue of how the Defendant excrcised the prerogative of the easement in order
to be deemed a "possessor of land" still remained a question of material fact fol' the jury. The
court based its decision on the fact that the Defendant held an easement and that the Defendant
had a duty to contribute to the maintenance of the parking lot. The court further stated that a
holder of an easement is determined to be a possessor of land ifhe fits one of the following
descriptions: I) he must be in occupation of the land with the intent to control it, 2) he must have
been in occupation of the land with intent to control it ifno other party has done so subsequently,
or 3) he is entitled to immediate occupation if ncither of the other alternatives apply.
Defendant should not bc granted a summary judgment because, like both Leichter and
Blackman, Defendant holds an casement for ingress, egress, and parking on the land where
Plaintiff fell. Like the plaintitTs in both Lelcluer and Blackmail, Plaintiff was a business invitee
who was injured on the propcrty whcrc Defcndant held an easement. It is immaterial if
4
.
.j
. .
~ARL A. WINDEMAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
I CIVIL ACTION - LAW
v.
,
ALAN KREITZER, tlaldlb/a
SILVER SPRING ANTIQUE AND
FLEA MARKET and SILVER
SPRING SPEEDWAY,INC.,
Defendants.
NO. 97.706!l CIVIL TERM
I, Marcus A. McKnight, Ill, Esquire, do hereby certify that I have served a true and
correct copy of the foregoing document upon the persons indicated below by First Class United
States Mail, postage prepaid in Carlisle, Pennsylvania, 17013, on the date set forth below:
Paul Lancaster Adams, Jr., Esquire.
Rawle & Henderson, LLP
The Widener Building
One South Penn Square
Philadelphia, P A 19107
10
Date: August~, 1999
Mareu A.
60 West Po et Street
Carlisle, Pennsy
(717) 249-2353
J.D. #25674
Attorney for Plaintiff, Earl A. Windemaker
6
.
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PYS~~O Cumberiand County Prothonotary's Of fLco
h CLviL Caso InquLry
1997-07065 WINDF;MAKEH f;I\[{L A (VB) KHf:r'I'ZEH AI,AN W!' 1\[,
Reference No,,:
Case Type..,.,: WRIT OF SUMMONS
JUdgment'1"": ,00
Judge Ass gned:
Disposed Dosc, I
----.------- Case Comments -------_____..
Page 1
Filed. . . . . . . . :
'rime.. . . . .. . . :
ExecutIon Date
.Jury Trial, , . ,
DiSgOf.lOd Date.
Big ler Crt 1.:
Hlg er Crt 2.:
12/23/1997
3:J.9
0/0010000
0/00/0000
***..*****..***.***********..*************************kw"'"""",*",*,*"",
Genoral Index Attorney Info
WINDEMAKER EARL, A pLAIN'I'IFF MCKNIGHT MARCUS A I II
KREITZER ALAN DEFENDANT HEIN ANGELA M
6416 CARLISLE PIKE
MECHANICSBURG pA 17055
SILVER SPRINGS ANTIQUE AND DEFENDANT
FLEA MARKE'!'
6416 CARLISLE PIKE
MECBANICSBURG pA 17055
SILVER SPRING SPEEDWAY INC DEFf;NDANT HElM ANGEl,A M
6416 CARLISLE PIKE
MECHANICSBURG PA 17055
******************************************************...".,*".*..",,*.,.,.,.
* Date EntrLes *
W'W.**k.*..*.........**..**...*...*.....*..*..........k*kkk*k""""""",.",
12/23/1997
12/29/1997
12/29/1997
6111/1998
6/11/1998
7/22/1998
7/22/1998
8/31/1998
9/24/1998
10/22/1998
12/31/1998
12/31/1998
5/10/1999
7/12/1999
- - - - - - - - - - - - - FIRST ENTRY - - - - _ _ _ _ _ _ _ _ _ _
PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
-----.--------------------------------------------------------------
SHERIFF'S RETURN FILED
LItiqant.: SILVER SPRINGS ANTIQUE AND FLEA MARKET
SERVED : 12/29/97 WRIT OF SUMM
Costs..,,: $26,20 I'd By: IRWIN MCKNIGIIT & HUGIIES 12/29/1997
--------.-----.------------------..-------------------.------------.--------
SHERIFF'S HETURN FILED
Litigant.: SILVER SPRING SPEEDWAY INC
SERVED : 12/29/97 WRIT OF SUMM
Costs..,,: $8,00 I'd By: IRWIN MCKNIGHT & HUGHES 12/29/1997
-------------------------------------------------------------------
ENTHY OF APPEARANCE FOR ALAN KREITZER AND SILVER SPRING SPEEDWAY BY
MONICA E O'NEILL ESQ
------------------------------------------..---.---------------------
DEMAND FOR JURY TRIAL
-------------------------------------------------------------------
PRAECIPE FOR RULE TO FILE COMPLAINT BY MONICA E O'NEILL ESQ
-------------..-----------------------------------------------------
RULE TO FILE COMPLAINT BY JANE II SPARLING pROTHONTARY DEPUTY
-------------------------------------------------------------------
COMPLAINT
---.----------------------------------------------------..-----------
ANSWER OF DEFENDANTS ALAN KREITZER AND SILVER SPRINGS SPEEDWAY TO
THE PLAINTIFF'S COMPLAINT WITH NEW MATTER
-----.--------------------------------------------------------------
PRAECIPE TO SUBSTITUTE VERIFICATION BY MONICA E O'NEILL ESQ
--_._--------------------------------,-------------------------------
ENTRY OF APPEARANCE FOR ALAN KREITZER AND SILVER SPRINGS SPEEDWAY
BY ANGELA M HElM ESQ
-------------------------------------------------------------------
WI'l'HDHAWAL OF APPEARANCE FOR ALAN KREITZER AND SILVER SPRINGS
SPEEDWAY BY MONICA E O'NEILL ESQ
----------------.--------------.-------------------------------------
DEFENDANTS ALAN KREITZER SILVER SPRINGS ANTIQUE AND FLEA MARKET AND
SILVER SPEEDWAY'S MOTION FOR SUMMARY JUDGMENT
-----.--------------------------------------------------------------
PRAECIPE FOR I,ISTING CASE FOR ARGUMENT BY PAUL LANCASTER ADAMS JR
ESQ -- MOTION FOR SUMMARY JUDGMENT
- - - - - - - - - - - - - - LAST ENTRY - - - - _ _ _ _ _ _ _ _ _ _
********************************************************************************
* Escrow Information *
* Fees & Debits Beg Bal Pymts/Adj End Bal *
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten llIld subnitted in dupl.icllte)
TO TilE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next ArgIJnent Court.
-------"-------------------------------------------------------------------------------
CAPTION OF CASE
(ent.1:re caption must be stated in full)
EARL A. WINDEMAKER
(Plaintiff)
VB.
ALAN KREITZER t/a d/b/a SILVER SPRINGS
ANTIQUE AND FLEA MARKET AND SILVER SPRINGS
SPEEDWAY
( Deferxlant)
No. 7065
Civil Action
19 97
1_ ' St:l.lte matter to be argued (i.e.. plaintiff's rrotioo for new trial. defendant's
demurrer to complaint. etc.):
Motion for Summary Judgment
2. Identify counsel who will argue case:
(a) for plaintiff:
Address:
Marcus McKnight, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
Paul Lancaster Adams, Jr., Esquire
RAWLE & HENDERSON LLP
The Widener Building, One South Penn Square
Philadelphia, PA 19107
3. I will notify all p&1:ies in 'lriting within two days that this ClISe has
been listed for argunent.
(b) for defendant:
Address:
4 . ArgI.rnent Court Da te:
August 11, 1999
():Jted:
4/~d~.~
Attorney for De fendan t f
^.I.an KrllllZGI
'~ M ~
..e ~~~
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^dam.'IWI,,~u,"
LAw o.'lCU
TIll WIDlNU QUILDlNlJ
Otll!l.otmt PINN kcJ.u.1
PlIIlADIIL'UI,\, PA.ll1107
2l5-a75-4200
CAlLI RA1Il'U Pnll...WI1.1'tUA
Tnu .....286
PAQIMIU 215-56J.2MS
1'1.. J..,- 0......
'fiN J...u.a 0ltmIa ItxJn1rM PANI
M.w..nlN. N.. JDIn
May 6, 1999
Prothonotary
Cumberland County
Court of Common Pleas
I Courthuuse Square
Carlisle, PA 17013
Re: Earl A. Wlndemaker v. Alan Kreitzer tla and d/b/a Sllvcr Springs Antlquc,
et al.
Docket No.: 97-7065
Our File No.: 432,326
Dear Sir/Madam:
Enclosed please find an original and one copy of Defendants Alan Kreitzer, Silver
Springs Antique and Flea Market and Silver Speedway's Motion for Summary Judgment.
Kindly file the original of same and return a time-stamped copy in the self-addressed stamped
envelope provided for your convenience.
Thank you for your attention to this mailer.
Very truly yours,
RAWLE & HENDERSON LLP,/. .#"
By: /?M/./L,.~
Paul Lancas~dams, Jr.
PLAltcw
Enclosure
cc: Marcus A. McKnight, Esquire (w/encl.)
0299428.01
3, Additionally, plaintiff alleges that his injuries were caused exclusively and
solely by Silver Springs Speedways negligence, carelessness and recklessness. Sl:l: Exhibit A
at' 22.
4. On July 10, 1998, Delcndnnt owner of Silver Springs Speedwny, Alan Kreitzer,
visited the allcged sccne of thc incldcnt with formcr counscl (Monica O'Neill), Plaintiff, and
plaintiff's attorncy Mnrcus McKnight, nnd n surveyor, Carl Poflcnbergcr. Sl:l: original
Aftidavit by Alan Kreitzer attachcd as Exhibit B at , 3.
S. During this timc, Plaintiff indicated to cvcryonc present exactly wherc he tcll
during the incident which actually is thc propcrty of an adjacent lot not owned by Defendant
Silver Springs Speedway. Sl:l: Exhibit B at' 4,
6. A sllflicient boundary survey was performcd by Surveyor Carl Poffenbcrgcr and
it was determined that the arca indicated by plaintiff as the "approximate fall arca" is
completely off of the Silver Springs Speedway propcrty. Sl:l: survey by Carl Poffenbcrger of
Erdman Anthony Consulting Engineers including rcport summary, nunched as Exhibit C nnd
drawing attached as Exhibit D.
7. Defendants an: cntitled to summary judgment pursuant to Rule 1035.2 of the
Pennsylvania Rulcs of Civil Proccdure. The amendcd Rule 1035.2 states the following:
After thc relevant proceedings arc c1oscd, but within such
time as not to rcasonnbly delay trial, any party mny movc
for summary judgment in whole or in part as n matter of
law,
(l) Wbenevcr thcre is no gcnuinc issue of nny material
fact as to thc necessary element of the causc of
action which could be establishcd by nddilionnl
discovery or expert report, or
02t)21S(),0I
II. LEGAL ARGUMENT:
A, Standard for SUlllmary Judgement:
Defendants arc entitled III sUlllmary judgmcnt pursuant to Rulc 1035.2 of thc
Pennsylvania Rules of Civil Proccdure. Thc amcndcd Rule 1035.2 Slates thc following:
After thc relevant proccedings are closed, but within such
time as not to reasonably deltly trial, tiny ptlrty mtly move
for summary judgment In whole or in ptlrt as a IlltlUer of
law.
(3) Whcnever there is no genuinc issuc of any material
tilct as to thc necessary elem':nt of the causc of
tlction which could bc establishcd by additional
discovery or cxpert rcport, or
(4) If, after the completion of discovery relevant to the
motion, including the production of expcrt reports,
an adverse party which will bear the burden of
proof at trial has failed to produce evidencc of
facts essential to the cause of action or defense
which in a jury trhll would require the issucs to be
submitted to the jury.
Pennsylv;lIlia Rules of Civil Procedure 1035.2.
Recently, in Ertel v, Patriot-News Company, 544 Pa, 93, 674 A.2d 1038 cerl. denied,
117 S.Ct, 512 (1996), the Pennsylvania Supreme Court adopted the reasoning of the United
States Supreme Court in Celotex Corp. V. Catrell, 477 V.S. 317 (1986), and Andersoll..Y.,
Liberty Lobby, 477 V.S. 242 (1986), with rcgard to the standard of review to be applied to
Motions for Summary Judgmenl. Recognizing the unreasonableness of "allowing non-moving
panies to avoid summary judgment where they have no evidence at issue which may bear the
burden of proof," the Court held:
0292286.01
[AI non-moving party must udducc sufl1clcnt cvldcncc on un issuc
csscntiulto his cusc und on which hc hcurs thc hurdcn of pl'Oof such thut
a jury could rctum u vcrdlct in his fuvor, Fuilurc to udducc this cvldcnce
cstublishcs thutthcrc is no gcnulnc Issuc of JlIl1tcritll fuct, und thc moving
party Is cntitlcd to judgmcnt us u mUllcr of law,
Er!l:1, 544 Pu. at 101-02, 674 A.2d ut 1042, This rcformulutlon of thc summary jUdgment
standard placcs thc burden squarcly on thc non-moving partics It) comc forward with cvidence
dcmonstrating thc cxistencc of a gcnulnc issuc of material fact. It is not sufliclent for thc
rcsponding partlcs to "rcst on the mcre allegations 01' denials of [thcir] pleadings,"
Pcnnsylvania Rules of Civil Procedure 1035.3.
B. Moving Defendants are not liable to plaintiff for Injuries he sustained on an
adjacent lot,
Plaintiff was mistaken as to who was in exclusive possession, management and control
of the actual property where thc incidcnt occurrcd. On July 10, 198, Defendant owner Alan
Krcitzer, visited the alleged sccne of the incident with former counsel (Monica O'Neill),
Plaintiff and his attorney Marcus McKnight, and a surveyor, Carl Poffenberg(:r. & Exhibit B
at 1 3. During the visit, Plaintiff indicated to cveryone prcsent where hc fell during the
incident. ~ Exhihit B at 1 4. The location pointed out by Plaintiff was actually the property
of an adjacent lot not owned by Defendants. & Exhibit D at , 4. A sufficicnt boundary
survey was performed by Surveyor Carl Poffenberger and it was dctermined that thc area
indicated by Plaintiff as the "approximate t;111 area" was complctely off Defendants property,
~ Exhibit C and Exhihit D.
0291286.o1
Plaintiff can not producc any evidence that Defendants IIrc Iiablc to him for the injuries
he sustained. In fact, Plaintiff WIIS mistakcnlls to who was in exclusive possession,
management and control of the actulIl property where the Incident occurred.
WHEREFORE, defendunts, respectfully rcquestthlllthls Honorable Court grunt their
Motion for Summary Judgement and dismiss 1111 clllims tiled against said moving dcfendllnts.
Rcspectfully SUb~IU~ 4' / /
By: ~~uvrr
Pllul Lancaster Adums, Jr,. Esquirc
Allorney for Defendllnt,
Alan Krcitzer, Sliver Springs
Speedway and Silver Springs
Antique and Flea Market
Rawle & Henderson, LLP
The Widener Building
One South Penn Square
Pbiladelphia, PA 19107
(215) 575-4200
0292286.01
9.
On or ubout Dccember 24, 1995, therc cxlsted ridgcs of ice located at the entrunce to the
parking lot located on the Silver Spring Speedwuy property, which locution hUll a slight incline or
slope,
10.
While Plaintiff was attempting to leave the Silver Spring Antique and Flea Market and
make his way to his automobile, the ridges of ice caused Plaintiff to slip, stumble, fall and strike
the ground, primarily upon the left side of his body, resultIng in serious and permanent inJuries.
11.
As a result of the fall caused by the ridges of ice, Plaintiff temporarily lost consciousness
and became unaware of his surroundings, and temporarily lost continence,
12.
Within one hour following his fall, Plaintiff was taken to the Carlisle Hospital Emergency
Room where he was examined by Pamela J, Brothers, M.D.
13.
'Plaintiff complained of severe pain in and around his left shoulder and upon examining
him and consulting with Daniel P. Hely, M.D., Dr. Brothers diagnosed Plaintill's condition as a
"ligamentous or tendon-type injury and probably a left AC separation." A copy of the
emergency room doctor's report is attached hereto and inCOrPorated herein by reference as
Exhibit "A."
/
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ERDMAN ANTHONY
CON S U L TIN Ci [N Ci I N r r ,/ s
ImfHur-- OWn." ,OU.'IIV Of'y."
AuguSl. 24, 1998
Stolarski, Gillespie & O'Neill
2005 Murket Street, Suite 2030
Philadelphia, PA 19103
Attn: Ms, Monica E. O'Neill
Re: Wlndemnker v. Silver Springs Speedway
Dear Ms. O'Neill:
As per Alan Kreitzer's suggestion, I contacted C, W. Jenkins Associates, Inc. and requested any/all
survey contrc;>1 data they might have in regard to the Silver Springs Speedway property. Mr, Jenkins
assured me that as soon as he received sanle from the New Jersey surveyor that was working on
adjacent property, he would forward it to me -I never received those materials.
Consequently, I directed one of our survey crews to this site on August 10 and II and we performed
sufficient boundary survey to produce the enclosed drawing. You will note that the area indicated as
the "approximate fall area" (AREA-2) as suggested by Mr, Windemnker is completely off of
Speedway property. Similarly, the "approximate fall area" as remembered by Mr. Kreitzer (AREA-I)
Is also off the Speedway property. In the latter scenario, the property line is approximately 0.8 feet
(about 10 inches) to the right of the actual intersection of two lines as you look north on Photo I and 2.
It Is rather obvious that Mr. Windemnker fell somewhere off of the Speedway property, I have
enclosed colored copies of the photographs that I took that day when we all met at the site together
with a description of each photo, Please advise if there is any further need of our services,
Very truly yours,
ERDMAN, ANTHONY, ASSOCIATES, INC.
~'" )"PE ~ Pd:
Principal A o' te
CP:cb
Enclosures
O:\USERIPUDLlClCARI..P\ WP\wlndcmakc,lcUCI doc
Erdmiln. Anthony. Associate'S. Inc.
1 Crossq.lf(' Drive. StJirp. 100
M('{h.tnlnburq, PA I/05S-}41J?
7171661741
FM 717766 5516
An Equal Opportunity Employer
4.
On or about December 21, 1988, Defendant Corporation purchased the property known
os the Silver Spring Speedway, located at 6416 Carlisle Pike, Mechanicsburg, Pennsylvania,
5.
At all relevant times mentioned herein, Defendant Corporation was in exclusive
possession, management and control of the Silver Spring Speedway property, through its
employees, officers and directors who were acting within the course and scope of their
employment by the Corporation and in furtherance of its business.
6.
Defendant Kreitzer operates the Silver Spring Antique and Fica Market at the Silver
Spring Speedway property.
7.
At all relevant times mentioned herein, Defendant Kreitzer was in exclusive possession,
management and control of the Silver Spring Antique and Flea Markct, individually and through
his agents, servants or employees who were acting within the course and scope of their
employment by Kreitzer and in furtherance of Kreitzel's business.
8.
On or about December 24, 1995, Plaintiff was a business visitor to the Silver Spring
Antique and Flea Market.
9,
On or about December 24, 1995, therc existed ridges of ice located ntthe entrance to the
parking lot located on the Silver Spring Speedway property, which location has a slight inclinc or
slope.
, ,
10.
While Plaintiff was attempting to leave the Silver Spring Antique and Flea Market and
make his way to his automobile, the ridges of ice caused Plaintiff to slip, stumble, fall and strike
the ground, primarily upon the left side of his body, resultIng in serious and pennanent injuries,
11.
As a result of the fall caused by the ridges of ice, Plaintiff temporarily lost consciousness
and became unaware of his surroundings, and temporarily lost continence,
12.
Within one hour following his fall, Plainliffwas taken to the Carlisle Hospital Emergency
Room where he was examined by Panlela J, Brothers, M.D.
13,
Plaintiff complained of severe pain in and around his left shoulder and upon examining
him and consulting with Daniel P. Hely, M.D., Dr. Brothers diagnosed Plaintiff's condition as a
"ligamentous or tendon-type injury and probably a left AC separation." A copy of the
emergency room doctor's report is anached hereto and incorporated herein by reference as
Exhibit "A."
14,
On or about December 27, 1995, Plaintiff was exwnined by Dr. Hely who referred
Plaintiff to Physicians Imaging Center for magnetic resonance imaging ("MRI") on his left
shoulder area.
15.
On or aboul December 28, 1995, Physician Imaging Center performed an MRI on
Plaintiffs left shoulder area which revealed a rotator cuff tear and evidence of marrow contusion.
A copy of the MRI report is nllached hereto and incorpOl'aied herein by reference as Exhibit "B."
16.
On or about January 11, 1996, Dr. Hely performed a surgical operation to repair
Plaintiffs tom rotator cuff on his left shoulder, which surgery included an acromioplasty, A
copy of Dr. Hely's operation report is allached hereto and incorporated herein by references as
Exhibit"C."
17.
Following surgery, Plaintiff continued to experience significant pain and receive
medication for his injuries.
18.
On or about January 13, 1996, Plaintiff was reieased Ii'om the Carlisle Hospital. A copy
of the hospital's discharge report is attached hereto and incorporated herein by reference as
Exhibit "D,"
~.,
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VERIFICATION
The foregoing complaint Is bosed upon information which hos been gathered by my
counsel arid myself in the preparation of this action, I have read the statements made in this
complaint and they are true and correct to the best of my knowledge, infonnation and belief. I
understand that false statements herein made are subject to the penalties of 18 Pa,C.S.A, Section
4904, relating to unswom falsification to authorities,
e~ t\, ....y -,.,.~. - ..........J............
EARL A. WINDEMAKER
Date: August 31, 1998
.,
AEEID.AYIT
In the Mutter of:
WlntlelDllker v, Silver Sprinlls SpeedwRY et Rio:.
Civil Action No. 97-7065
I, Alan Kreitzer, hereby state that I am cOIDpetentto make the following statement
regarding the above captioned matter.
I. I am currently thc solc owner and operator of the Silver Springs Speedway and am
also the owner ofthc Silvcr Springs Antiquc and Flea Market;
2. Silver Springs Speedway owns a portion of the property locatcd at 64 I 6 Carlislc
Pike, Mechanicsburg, PA. An adjoining parcel of property is owned by Donald L. Carter, Sr.,
who operates the Carter's Silver Springs Antique and Flea Market;
3. On Friday, July 10, 1998,1 had an opportunity to visit thc alleged scene of the
accident related to above-referenced civil action number with forrner counsel Monica O'Neill,
Mr. Windemaker, his attorney, Marcus McKnight, and a surveyor, Carl Poffenberger;
4. During this time I witnessed, Mr. Windcmaker indicate to everyone present where
he fell during thc incident. Such an area, is not the property of Silver Springs Speedway and is
actually the property of the adjacent lot owncd by Carter's Silver Spring Antique and Flea
Market; and
5. I do not have any property interest in the area of the incident described by Mr,
Windemaker, nor do I have any responsibilities cfrnaintaining such area,
Pursuant to penalty of perjury under the Criminal and Civil LawS of this
Commonwealth, I hereby state that the information contained in this affidavit is true, accurate,
and correct to the best of my knowledge and belief.
Dated:
Sworn to and subscribed before me this
~~dnyof.~_.1999.
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RAWLE & flENDEIUlON LLI'
By: John H. McCarthy
I.D. No.: 36726
The Widener Building
One South Penn Square
Philadelphia, Pa 19107
Attorney Cor Alan Kreitzer, Sliver
Springs Antique and Flea Market
and Silver Springs Speedway
EAItL A. WINDEMAKER
I'lalntlff
COURT'OF COMMON PLEAS
CUMBERLAND COUNTY
v.
NO, 97.7065
ALAN KREITZER lIa d/b/a SILVER
SI'RINOS ANTIQUE AND FLEA MARKET
AND SILVER SI'RINOS SI'EEDW A Y
ctVIL ACrlON
CERTIFICATE OF SERVICE
I hereby certiCy that a true and correct copy oCthe foregoing Rule Returnable was served
upon the following counsel of record via regular mail:
Marcus A. McKnight, Esquire
Irwin, McKnight & Hughes
60 West PomCret Street
Carlisle, P A 17013
Date: June 15,2001
0'32932.01
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