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HomeMy WebLinkAbout03-0365KATHLEEN HERZOG, Plaintiff BLACK FOREST ENTERPRISES, INC., t/d/b/a FIRESIDE INN, DONALD W. MULLEN and GLORIA L. MULLEN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. _~...~ JURYTRIALDEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 KATHLEEN HERZOG, Plaintiff Vo BLACK FOREST ENTERPRISES, INC., t/d/b/a FIRESIDE INN, DONALD W. MULLEN and GLORIA L. MULLEN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW No. JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la code. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE EMCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSSGUIA ASlSTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 KATHLEEN HERZOG, Plaintiff BLACK FOREST ENTERPRISES, INC., t/d/b/a FIRESIDE INN, DONALD W. MULLEN and GLORIA L. MULLEN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. ~.~ ~4~j JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Kathleen Herzog, is an competent adult individual currently residing at 422 West Penn St., Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Black Forest Enterprises, Inc., is a Pennsylvania Corporation located at 3800 Lisburn Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Defendants, Donald W. Mullen and Gloria L. Mullen, are competent adult individuals located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania 17013. 4. At all times material hereto, Black Forest Enterprises, Inc., was in ownership, possession, management, and control of the Fireside Inn located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania 17013. 5. At all times material hereto, Donald and Gloria Mullen, were in ownership, possession, management, and control of Black Forest Enterprises, Inc. Premises. 7. At all times material hereto, Plaintiff, Kathleen Herzog, was lawfully upon said At all times material hereto, Defendants, who had exclusive control of said Premises, maintained a parking area with poor lighting and a poor placement of parking curbs. 8. At all times material hereto, there were no warning signs posted on the Premises nor was there any sufficient lighting available so as to provide visible warning of the unsafe condition of the parking lot. 9. On or about May 18, 2001, Plaintiff, Kathleen Herzog, was leaving the Fireside Inn at around 10:00 p.m. when she walked around the outside of the restaurant that was dark because of insufficient lighting, when she fell over a cement parking curb that was placed in an improper position causing her to fall upon the ground, which caused personal injuries to the Plaintiff. 10. At all times material to hereto, Plaintiff, Kathleen Herzog, believes and therefore avers, that Defendant, Black Forest Enterprises, Inc., was in ownership, possession, management and/or control of the Premises and was responsible for maintaining the safe condition of the property located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania 17013. 11. At all times material to hereto, Plaintiff, Kathleen Herzog, believes and therefore avers, that Defendants, Donald and Gloria Mullen as owners of Black Forest Enterprises, Inc., were in ownership, possession, management and/or control of the Premises and was responsible for maintaining the safe condition of the property located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania 17013. COUNT I- NEGLIGENCI~ KATHLEEN HERZOG v. BLACK FOREST ENTERPRISES, INC. 12. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Kathleen Herzog, were caused directly and proximately by the negligence of Defendant, Black Forest Enterprises, Inc., individually and/or by his agents, servants, and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In permitting and allowing insufficient lighting to remain within the parking area of the said Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In permitting and allowing cement parking curbs to be placed in improper positions in the parking area on the said Premises when Defendant knew or should have known the likelihood that the positioning of the curb could become a tripping hazard to individuals traversing to and from the restaurant; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by a lack of sufficient lighting and improper positioning of 3 curbs in the parking area of the said Premises, and thereby allowing the dangerous condition to remain when the Defendant knew or should have known of it; (d) In failing to ensure that the frequently used parking areas at the said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition in the parking area of the said Premises; (f) In failing to remove or remedy the lighting and improper positioning of the curbs in the parking area on the said Premises so as to avoid the situation in which the Plaintiff tripped and fell; (g) In failing to maintain the parking area in a reasonably safe condition that would prevent Plaintiff, Kathleer Herzog, from tripping and falling over the curb onto the cement; and (h) In failing to keep the area of premises adequately lit so as not to conceal the actual condition of the parking lot. 13. Defendant, Black Forest Enterprises, Inc., individually and/or by his agents, servants, and/or employees, acting in the scope of their authority and employment, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was not sufficient lighting and improper positioning of the parking curbs in the parking area at the said Premises where Plaintiff, Kathleen Herzog, fell. 14. As a direct and proximate result of the negligence of Defendant, Black Forest Enterprises, Inc., Plaintiff, Kathleen Herzog, sustained serious injuries including, but not limited to, a fractured elbow. 15. As a direct and proximate result of the negligence of Defendant, Black Forest Enterprises, Inc., Plaintiff, Kathleen Herzog, has undergone great physical pain, discomfort and mental anguish, and she will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 16. As a direct and proximate result of the negligence of Defendant, Black Forest Enterprises, inc., Plaintiff, Kathleen Herzog, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 17. As a direct and proximate result of the negligence of Defendant, Black Forest Enterprises, Inc., Plaintiff, Kathleen Herzog, has, and will in the future, suffer a loss of life's pleasures. 18. As a direct and proximate result of the negligence of Defendant, Black Forest Enterprises, Inc., Plaintiff, Kathleen Herzog, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. 5 WHEREFORE, Plaintiff, Kathleen Herzog, seeks damages from Defendant, Black Forest Enterprises, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs, and demands a trial by jury. COUNT II- NEGLIGENCE KATHLEEN HERZOG v. DONALD MULLEN 19. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Kathleen Herzog, were caused directly and proximately by the negligence of Defendant, Donald Mullen as owner of Black Forest Enterprises, Inc., individually and/or by his agents, servants, and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In permitting and allowing insufficient lighting to remain within the parking area of the said Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In permitting and allowing cement parking curbs to be placed in improper positions in the parking area on the said Premises when Defendant knew or should have known the likelihood that the positioning of the curb could become a tripping hazard to individuals traversing to and from the restaurant; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by a lack of sufficient lighting and improper positioning of curbs in the parking area of the said Premises, and thereby allowing the dangerous condition to remain when the Defendant knew or should have known of it; (d) In failing to ensure that the frequently used parking areas at the said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition in the parking area of the said Premises; (f) In failing to remove or remedy the lighting and improper positioning of the curbs in the parking area on the said Premises so as to avoid the situation in which the Plaintiff tripped and fell; (g) In failing to maintain the parking area in a reasonably safe condition that would prevent Plaintiff, Kathleen Herzog, from tripping and falling over the curb onto the cement; and (h) In failing to keep the area of premises adequately lit so as not to conceal the actual condition of the parking lot. 20. Defendant, Donald Mullen, individually and/or by his agents, servants, and/or employees, acting in the scope of their authority and employment, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was not sufficient lighting and improper positioning of the parking curbs in the parking area at the said Premises where Plaintiff, Kathleen Herzog, fell. 21. As a direct and proximate result of the negligence of Defendant, Donald Mullen, Plaintiff, Kathleen Herzog, sustained serious injuries including, but not limited to, a fractured elbow. 22. As a direct and proximate result of the negligence of Defendant, Donald Mullen, Plaintiff, Kathleen Herzog, has undergone great physical pain, discomfort and mental anguish and she will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 23. As a direct and proximate result of the negligence of Defendant, Donald Mullen, Plaintiff, Kathleen Herzog, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 24. As a direct and proximate result of the negligence of Defendant, Donald Mullen, Plaintiff, Kathleen Herzog, has, and will in the future, suffer a loss of life's pleasures. 25. As a direct and proximate result of the negligence of Defendant, Donald Mullen, Plaintiff, Kathleen Herzog, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Kathleen Herzog, seeks damages from Defendant, Donald Mullen, in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs, and demands a trial by jury. COUNT III- NEGLIGENCF KATHLEEN HERZOG v. GLORIA MU~ ~ FN 26. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Kathleen Herzog, were caused directly and proximately by the negligence of Defendant, Gloria Mullen, individually and/or by his agents, servants, and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In permitting and allowing insufficient lighting to remain within the parking area of the said Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In permitting and allowing cement parking curbs to be placed in improper positions in the parking area on the said Premises when Defendant knew or should have known the likelihood that the positioning of the curb could become a tripping hazard to individuals traversing to and from the restaurant; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by a lack of sufficient lighting and improper positioning of curbs in the parking area of the said Premises, and thereby allowing the dangerous condition to remain when the Defendant knew or should have known of it; (d) In failing to ensure that the frequently used parking areas at the said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition in the parking area of the said Premises; (f) In failing to remove or remedy the lighting and improper positioning of the curbs in the parking area on the said Premises so as to avoid the situation in which the Plaintiff tripped and fell; (g) In failing to maintain the parking area in a reasonably safe condition that would prevent Plaintiff, Kathleen Herzog, from tripping and falling over the curb onto the cement; and (h) In failing to keep the area of premises adequately lit so as not to conceal the actual condition of the parking lot. 27. Defendant, Gloria Mullen, individually and/or by his agents, servants, and/or employees, acting in the scope of their authority and employment, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was 10 not sufficient lighting and improper positioning of the parking curbs in the parking area at the said Premises where Plaintiff, Kathleen Herzog, fell. 28. As a direct and proximate result of the negligence of Defendant, Gloria Mullen, Plaintiff, Kathleen Herzog, sustained serious injuries including, but not limited to, a fractured elbow. 29. As a direct and proximate result of the negligence of Defendant, Gloria Mullen, Plaintiff, Kathleen Herzog, has undergone great physical pain, discomfort and mental anguish and she will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 30. As a direct and proximate result of the negligence of Defendant, Gloria Mullen, Plaintiff, Kathleen Herzog, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 31. As a direct and proximate result of the negligence of Defendant, Gloria Mullen, Plaintiff, Kathleen Herzog, has, and will in the future, suffer a loss of life's pleasures. 32. As a direct and proximate result of the negligence of Defendant, Gloria Mullen, Plaintiff, Kathleen Herzog, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. 11 WHEREFORE, Plaintiff, Kathleen Herzog, seeks damages from Defendant, Gloria Mullen, in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs, and demands a trial by jury. Respectfully submitted, HANDLER, HENNING & ROSENBERG LLP Ste~)~n'~ ~l~s~. I.D. No. 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff 12 VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: Kathleen Herzog THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 John FIounlacker, Esquire Attorney I.D. No. 73112 (717)237-7134 Attorneys for Defendant KATHLEEN HERZOG, Plaintiff V BLACK FOREST ENTERPRISES, INC., : t/d/b/a F/RESIDE INN, : DONALD W. MULLEN, and : GLORIA L. MULLEN, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-365 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO THE PROTHONOTARY: Please enter my appearance for Defendants, Black Forest Enterprises, Inc., t/d/b/a Fireside Inn, Donald W. Mullen and Gloria L. Mullen, in the above-captioned case. Dated: THOMAS, THOMAS & HAFER, LLP John~lounlacker, E s~ufr~ I.D. ~ber: 73112 305 No~h Front S~eet P.O. Box 999 H~sburg, PA 17101 (717)237-7134 Co~sel for Defend~ts CERTIFICATE OF SERVICE I. Jeannie L. Kawalec, an employee for the law finn Thomas, Thomas & Hafer, LLP, hereby state that a true and correct copy of the foregoing Entry of Appearance was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: By First Class U.S. Mail: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Dated: 1/~/0 3 THOMAS, THOMAS & HAFER, LLP J.~'annie L. Kawalec SHERIFF'S RETURN - REGULAR CASE NO: 2003-00365 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERZOG KATHLEEN VS BLACK FOREST ENTERPRISES ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BLACK FOREST ENTERPRISES INC TDBA FIRESIDE INN the DEFENDANT , at 1555:00 HOURS, on the 24th day of January , 2003 at 3800 LISBURN ROAD MECHANICSBURG, PA 17055 by handing to PJLNDAL BROWN, FORMER OWNER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.66 Affidavit .00 Surcharge 10.00 .00 37.66 Sworn and Subscribed to before me this ~ (~ day of ~~£ ~00~ A.D. So Answers: R. Thomas Kline 01/28/2003 HANDLER HENNING ROSENBERG By: ,~///~ / SHERIFF'S RETURN - REGULAR CASE NO: 2003-00365 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERZOG KATHLEEN VS BLACK FOREST ENTERPRISES ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MULLEN DONALD W the DEFENDANT , at 0830:00 HOURS, on the 28th day of January , 2003 at 717 N WEST STREET CARLISLE, PA 17013 by handing to GLORIA L MULLEN, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 19.45 Sworn and Subscribed to before me this ,~'{'~ day of ~~TJ c~O0~ A.D. . ] t~O t ~°r~° t a rY/// So Answers: R. Thomas Kline 01/28/2003 HANDLER HENNING ROSENBERG SHERIFF'S RETURN - REGULAR CASE NO: 2003-00365 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERZOG KATHLEEN VS BLACK FOREST ENTERPRISES ET KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MULLEN GLORIA L the DEFENDANT , at 0830:00 HOURS, on the 28th day of January , 2003 at 717 N WEST STREET CARLISLE, PA 17013 by handing to GLORIA L MULLEN a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before m~ this 3~{~& day of .~ ~06~ A.D. So Answers: R. Thomas Kline 01/28/2003 HANDLER HENNING ROSENBERG By: D ~ut~ Sl{er~f / THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 John Fiounlacker, Esquire Attorney I.D. No. 73112 (717)237-7134 Attorneys for Defendant KATHLEEN HERZOG, Plaintiff BLACK FOREST ENTERPRISES, INC., t/dPo/a FIRESIDE INN, DONALD W. MULLEN, and GLORIA L. MULLEN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-365 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO PLAINTIFF: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER. LLP Date: By: Jotm'~lounlacker, Esquire Atto~ey I.D. # 73112 P.O. Box 999 305 N. Front Street Harrisburg, PA 17108-0999 (717)237-7134 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 John Flounlacker, Esquire Attorney I.D. No. 73112 (717)237-7134 Attorneys for Defendant KATHLEEN HERZOG, Plaintiff V BLACK FOREST ENTERPRISES, INC., t/d/b/a FIRESIDE INN, DONALD W. MULLEN, and GLORIA L. MULLEN, Defendants · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 03-365 · CIVIL ACTION - LAW · JURY TRIAL DEMANDED AND NOW ONTO COURT, through undersigned counsel, comes the Defendants, Black Forest Enterprises, Inc., t/d/b/a Fireside Inn, Donald W. Mullen and Gloria L. Mullen, who, in Answer to the Complaint of the Plaintiff, respectfully represent that: 1. It is admitted the Plaintiff is who she says she is. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Answering Defendants submit that the allegations contained within this paragraph amount to legal conclusions which require no answer. 7. The Defendant admits that it owns a parking lot for the Fireside Inn located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania 17013. By way of further explanation, the remains of the averments in this paragraph are denied. 8. Denied. 9. The Answering Defendants submit that any allegations contained within this paragraph alleging that a parking curb was placed in an improper manner or that any conduct on the part of the Answering Defendants amounted to a cause or substantial cause for the Plaintiff's injuries and/or damages amount to legal conclusions which require no answer. By way of further explanation, the remains of the averments in this paragraph are denied generally in accordance with Pa.R.C.P. 1029(e). 10. Denied as stated. By way of further explanation the Answering Defendants admit that it did own a parking lot located near or around the Fireside Inn located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania, 17013. 11. Denied as stated. By way of further explanation the Answering Defendants admit that it does own property located at 823 Newville Road, Carlisle, Cumberland County, Pennsylvania, 17013. COUNT I - NEGLIGENCE KATI-ILEEN HERZOG v. BLACK FOREST ENTERPRISES~ INC. 12. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause for the Plaintiff's damages amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph amount to a legal conclusion which requires no answer. (a) (b) (c) (a) (e) Answering Defendant denies that it was negligent for permitting and allowing insufficient lighting to remain within the parking area of the said Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises. Answering Defendant denies that it was negligent for permitting and allowing cement parking curbs to be placed in improper positions in the parking area on the said Premises when Defendant knew or should have known the likelihood that the positioning of the curb could become a tripping hazard to individuals traversing to and from the restaurant. Answering Defendant denies it was negligent for failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by a lack of sufficient lighting and improper positioning of curbs in the parking area of said Premises, and thereby allowing the dangerous condition to remain when the Defendant knew o should have known of it. Answering Defendant denies it was negligent in failing to ensure that the frequently used parking areas at the said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises. Answering Defendant denies it was negligent in failing to post a waming sign or device in the area to notify of the dangerous condition in the parking area of the said Premises; (f) Answering Defendant denies it was negligent in failing to remove or remedy the lighting and improper positioning of the curbs in the parking area of the said Premises so as to avoid the situation in which the Plaintiff tripped and fell. (g) Answering Defendant denies it was negligent in failing to maintain the parking area in a reasonably safe condition that would prevent Plaintiff, Kathleen Herzog, fi:om tripping and falling over the curb onto the cement; (h) Answering Defendant denies it was negligent in failing to keep the area of the premises adequately lit so as not to conceal the actual condition of the parking lot. 13. Denied. By way of further explanation Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant's conduct amounts to a proximate cause for causing the Plaintiff's injuries or damages amount to legal conclusions which require no answer. 14. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant's conduct was the direct and/or proximate cause of the Plaintiff's loss or that the Answering Defendant was negligent amount to legal conclusions which require no answer. By way of further explanation the averments in this paragraph are denied. 15. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the troth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 16. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said proximate causation being specifically denied. allegations of negligence and direct and/or By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the troth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 17. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 18. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. COUNT II - NEGLIGENCE KATHLEEN HERZOG v. DONALD MULLEN 19. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause for the Plaintiff's damages amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph amount to a legal conclusion which requires no answer. (a) Answering Defendant denies that it was negligent for permitting and allowing insufficient lighting to remain within the parking area of the said Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises. (b) Answering Defendant denies that it was negligent for permitting and allowing cement parking curbs to be placed in improper positions in the parking area on the said Premises when Defendant knew or should have (c) (d) (e) (f) (g) known the likelihood that the positioning of the curb could become a tripping hazard to individuals traversing to and from the restaurant. Answering Defendant denies it was negligent for failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by a lack of sufficient lighting and improper positioning of curbs in the parking area of said Premises, and thereby allowing the dangerous condition to remain when the Defendant knew o should have known of it. Answering Defendant denies it was negligent in failing to ensure that the frequently used parking areas at the said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises. Answering Defendant denies it was negligent in failing to post a waming sign or device in the area to notify of the dangerous condition in the parking area of the said Premises; Answering Defendant denies it was negligent in failing to remove or remedy the lighting and improper positioning of the curbs in the parking area of the said Premises so as to avoid the situation in which the Plaintiff tripped and fell. Answering Defendant denies it was negligent in failing to maintain the parking area in a reasonably safe condition that would prevent Plaintiff, Kathleen Herzog, from tripping and falling over the curb onto the cement; (h) Answering Defendant denies it was negligent in failing to keep the area of the premises adequately lit so as not to conceal the actual condition of the parking lot. 20. Answering Defendant submits that the allegations contained within this paragraph amount to legal conclusion which require no answer, said allegations are specifically denied. 21. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the troth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 22. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said proximate causation being specifically denied. allegations of negligence and direct and/or By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 23. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the troth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 24. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the troth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 25. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause of Plaintiff's damages amount to a legal conclusion which require no answer, said allegations of negligence and direct and/or proximate causation being specifically denied. By way of further explanation Answering Defendant denies the remains of the averments in this paragraph as after reasonable investigation, answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. COUNT III - NEGLIGENCE KATHLEEN HERZOG v. GLORIA MULLEN 26. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was negligent or that any conduct on the part of the Answering Defendant amounts to a direct and/or proximate cause for the Plaintiff's damages amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph amount to a legal conclusion which requires no answer. (a) Answering Defendant denies that it was negligent for permitting and allowing insufficient lighting to remain within the parking area of the said Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises. (b) Answering Defendant denies that it was negligent for permitting and allowing cement parking curbs to be placed in improper positions in the parking area on the said Premises when Defendant knew or should have known the likelihood that the positioning of the curb could become a tripping hazard to individuals traversing to and from the restaurant. (c) Answering Defendant denies it was negligent for failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by a lack of sufficient lighting and improper positioning of curbs in the parking area of said Premises, and thereby allowing the dangerous condition to remain when the Defendant knew o should have known of it. (d) Answering Defendant denies it was negligent in failing to ensure that the frequently used parking areas at the said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises. (e) Answering Defendant denies it was negligent in failing to post a warning sign or device in the area to notify of the dangerous condition in the parking area of the said Premises; (f) Answering Defendant denies it was negligent in failing to remove or remedy the lighting and improper positioning of the curbs in the parking area of the said Premises so as to avoid the situation in which the Plaintiff tripped and fell. (g) Answering Defendant denies it was negligent in failing to maintain the parking area in a reasonably safe condition that would prevent Plaintiff, Kathleen Herzog, from tripping and falling over the curb onto the cement; (h) Answering Defendant denies it was negligent in failing to keep the area of the premises adequately lit so as not to conceal the actual condition of the parking lot. 27. Answering Defendant submits that the allegations contained within this paragraph amount to legal conclusion which require no answer, said allegations are specifically denied. 28. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was the direct and/or proximate cause for the Plaintiff's damages or that the Answering Defendant was negligent amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph are denied as after reasonable investigation, Answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the tmth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 29. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was the direct and/or proximate cause for the Plaintiff's damages or that the Answering Defendant was negligent amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph are denied as after reasonable investigation, Answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 30. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was the direct and/or proximate cause for the Plaintiff's damages or that the Answering Defendant was negligent amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph are denied as after reasonable investigation, Answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the troth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 31. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was the direct and/or proximate cause for the Plaintiff's damages or that the Answering Defendant was negligent amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph are denied as after reasonable investigation, Answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 32. Answering Defendant submits that any allegations contained within this paragraph alleging that the Answering Defendant was the direct and/or proximate cause for the Plaintiff's damages or that the Answering Defendant was negligent amount to legal conclusions which require no answer, said allegations being specifically denied. By way of further explanation Answering Defendant submits that the remains of the allegations contained within this paragraph are denied as after reasonable investigation, Answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. NEW MATTER 33. Future discovery may show that some and/or all of the Plaintiff's claims may be reduced and/or barred based on the application of the applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 34. Future discovery may show that some and/or all of the Plaintiff's claims may be reduced and/or barred based on the PlaintiWs own negligence. 35. Future discovery may show that other entities or individuals may have been the proximate cause for the PlaintiWs damages. 36. Future discovery may show that none of the conduct on the part of the Answering Defendant amounted to a substantial cause for the Plaintiff's damages. 37. Future discovery may show that the Plaintiff assumed the risk of the events which lead up to causing the injuries as alleged in the Plaintiff's Complaint. WHEREFORE, Defendants, Black Forest Enterprises, Inc., t/d/b/a Fireside Inn, Donald W. favor and against Plaintiff, Kathleen Mullen and Gloria L. Mullen, demands judgment in its Herzog, with costs assessed to Plaintiff. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP John ~lounlacker, Esquire Attorhey I.D. # 73112 P.O. Box 999 305 N. Front Street Harrisburg, PA 17108-0999 (717)237-7134 VERIFICATION I, Defendant, Donald W. Mullen, hereby state that the statements made in the foregoing Answer with New Matter to Plaintiff's Complaint are tree and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. DONALD W. MULLEN VERIFICATION I, Defendant, Gloria L. Mullen, hereby state that the statements made in the foregoing Answer with New Matter to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. G~ORIA L. MULLEN CERTIFICATE OF SERVICE I. Jeannie L. Kawalec, an employee for the law finn Thomas, Thomas & Haler, LLP, hereby state that a tree and correct copy of the foregoing Answer with New Matter was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: By First Class U.S. Mail: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP · ~ff~ ~ ~ale~c ~ KATHLEEN HERZOG, Plaintiff BLACK FOREST ENTERPRISES, INC., t/d/bla FIRESIDE INN, DONALD W. MULLEN and GLORIA L. MULLEN, Defendants · IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW : : No. 03-365 .. : .. : .. JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANTS' ANSWER AND NEW MATTER 33. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent the averments may be deemed factual in nature, they are hereby denied. By way of amplification, it is denied that the incident which gave rise to the present action arose out of the use or maintenance of a motor vehicle; thereby the Pennsylvania Motor Vehicle Financial Responsibility Law does not apply to the instant matter. 34. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff was not negligent in any way. All of Plaintiff's injuries and damages were caused solely and directly as the result of the negligence, carelessness, wantonness and recklessness of the instant Defendant. 35. Defendants' averment is a conclusion oflawto which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendants' averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of Plaintiff's injuries and damages were caused solely and directly as the result of the negligence, carelessness, wantonness and recklessness of the instant Defendants. 36. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendants' conduct amounted to a substantial cause for Plaintiff's damages. 37. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff did not assume the risk of her injuries. Further, as previously stated herein, Plaintiff was not negligent or careless. All of Plaintiff's injuries and damages are recoverable in the instant action. WHEREFORE, Plaintiff respectfully requests Defendants' Answer and New Matter and Defendants. this Honorable Court to dismiss enter judgment in her favor against the Respectfully submitted, Stepher~ G! I-]el~l, Esq. I.D. No. 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff & ROSENBERG LLP VERIFICATION STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities. S~e~"~nVG~. I-~d, Esquire Dated' CERTIFICATE OF SERVICE AND NOW, this ~,,¢.. day of March, 2003, I hereby certify that I have, on this date, served the within document upon defendant's counsel and all counsel of record by sending a true and correct copy of same to them via first class United States mail, postage prepaid, and addressed as follows: John Flounlacker, Esquire THOMAS, THOMAS & HAFER, LLP PO Box 999 305 North Front Street Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG LLP By: Patricia Kol~r~ieir{- - ' IN THE COURT OF COMMON PLEA-~; CUMBERLAND COUNTY, PENNSYLVANIA No.03-365 CV Civil Action - (XX) Law KATHLEEN HERZOG Plaintiffs BLACK FOREST ENTERPRISES, INC., t/d/b/a FIRESIDE INN, DONALD W. MULLEN, GLORIA L. MULLEN and THE PENN NATIONAL INSURANCE COMPANY Defendant PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COURT: PLEASE MARK THE ABOVE MATTER "SETTLED, DISCONTINUED and ENDED". Stephen G. Held, Esquire 1300 Lin.qlestown Road Harrisburq, PA 17110 (717) 238-2000 Name/Address/Telephone No. of Attorney Signature of Attorney Supreme Court ID No. 72663 Date: October 4, 2004 cc: John FIounlacker, Esq.