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HomeMy WebLinkAbout03-0775ORIGINAL DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife Plaintiffs Vo MECHANICSBURG GF INVESTORS and CENTRAL PENNSYLVANIA HOSPITALITY, INC. t/a HOLIDAY INN HARRISBURG WEST, Defendants · CIVIL ACTION - LAW · JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NOTICE TO DEFEND AND CLAIM RIGHTS 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 wamed 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. 1~' 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, PENNSYLVANIA 17013 717/249-3166 1-800-990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paquinas siguientes, demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la torte enforma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 717/249-3166 1-800-990-9108 TUCKER ARENSBERG & SWARTZ Lee C. Swartz (~ Attorney I. D. #07258 111 North From Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFFS DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife Plaintiffs Vo MECHANICSBURG GF INVESTORS and CENTRAL PENNSYLVANIA HOSPITALITY, INC. t/a HOLIDAY INN HARRISBURG WEST, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02- ?%5 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, David A. Newman and Cassandra Newman,, by and through their attorney, Lee C. Swartz, and the finn of Tucker Arensberg & Swartz, and files this Complaint and in support thereof avers as follows: 1. Plaintiffs, David A. Newman and Cassandra Newman, husband and wife, are adult individuals residing at 5504 Glen Avenue, Lanham, MD 20706 (hereinafter referred to as "Plaintiffs"). 2. It is believed, and therefore averred, that Defendant, Mechanicsburg GF Investors Company are the owners and operators of the Defendant Central Pennsylvania Hospitality, Inc. which trade as Holiday Inn Harrisburg West and operate the Holiday Inn West Hotel situated at 5401 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania (hereinafter referred to as "Defendants"). 3. It is believed, and therefore averred, that Defendants have a principal place of business and do business at the aforestated address in Cumberland County. 4. On August 11, 2002, Central Pennsylvania Hospitality, Inc. traded as and operated a hotel business known as Holiday Inn Harrisburg West at 5401 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. COUNT I David A. Newman v. Mechanicsbnrll GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West 5. Paragraphs 1 through 4 and incorporated herein and are made a part hereof. 6. On August 11, 2002, the PlaintiffDavid A. Newman and his wife, Cassandra Newman leased a hotel room upon the premises of the Defendants located as aforestated, and were guests at the Holiday Inn Harrisburg West. 7. On the aforesaid date, David A. Newman stepped into a bathtub shower unit with the intentions of taking a shower, and turned on the water faucet, at which time he experienced slight discomfort because the water was slightly too warm. 8. At the aforesaid time and place, the Plaintiff David A. Newman attempted to regulate the water by turning the fixture in the shower to the cold water setting. 9. When Mr. Newman turned the fixture to the cold water setting, he experienced a great increase in the heat of the water, which severely burned him and he attempted to leave the tub shower quickly for fear of sustaining serious bums, at which time he slipped and fell onto the bathroom floor, suffering serious injuries as hereinafter set forth. 10. As a direct cause of the fall, the Plaintiff David A. Newman suffered severe painful and permanent injuries as follows: a. injuries to his right ankle, right hip, neck and shoulder; b. significant neck pain and tingling that runs down his arms and into his -2- hands; and c. continuous and severe headaches. 11. As a direct and proximate result of the injuries and complications thereof resulting from falling on August 11, 2002, (hereinafter the "injuries at issue in this case"), Plaintiff has incurred medical expenses to date and will continue to incur medical expenses for treatment and therapy in the future. 12. As a direct and proximate result of the injuries at issue in this case, Plaintiff has suffered and in the future will continue to suffer severe physical pain, mental anguish and suffering, humiliation, scarring, inconvenience, embarrassment and loss of life's pleasures. 13. As a direct and proximate result of the injuries at issue in this case, Plaintiff has and will continue to be limited in his daily activities. 14. As a direct and proximate result of the injuries at issue in this case, Plaintiff has and will continue to suffer great physical nervous, depression, mental and emotional distress. 15. As a direct and proximate result of the injuries at issue in this case, Plaintiff has and will continue to suffer impairment to his general health, strength and vitality. 16. As a direct and proximate result of the injuries at issue in this case, Plaintiff has an will continue to be required to spend money for medicine, medical care, nursing, hospital and/or surgical attention, medical appliances and household care beyond that which he might otherwise recover. 17. As a direct and proximate result of the injuries at issue in this case, Plaintiff David A. Newman has sustained a loss of earnings and a loss of earning capacity. -3- 18. The injuries at issue in this case and the damages suffered by Plaintiff David A. Newman as set forth herein, are the direct and proximate result of the Defendants being negligent, careless, and reckless as stated as follows: a. the defendants, their employees and agents improperly installed the water lines that supplied water to the Plaintiffs' hotel room; b. the Defendants, their employees and agents installed plumbing fixtures in a manner in which hot water was piped through the cold water portion of the water fixture in the shower and tub, thus causing the temperature of the water to greatly increase when the regulating fixture was turned to "cold." c. the water diverter fixture was improperly installed, causing the temperature of the water to greatly increase in temperature when the regulating fixture was turned to Cold; d. the employees and agents of the Defendants failed to properly and adequately install the plumbing fixtures in a manner in which the temperature of the water would increase when the regulating fixture was turned to Cold; and e. the employees and agents of the Defendants set the plumbing fixture device which regulates the temperature of water in such a manner that the water would become so hot as to severely bum users thereof. -4- 19. The employees and agents of the Defendants observed or should have observed the dangerous condition of the water temperature and failed to warn the guests of the hotel or correct the dangerous condition. 20. The Defendants, their employees and agents failed to exercise reasonable care which would have enabled them to discover the dangerous condition of the plumbing fixtures, and should have realized that it involved a reasonable risk of harm to persons such as the Plaintiff, David A. Newman. WHEREFORE, Plaintiffs demand judgment against the Defendants in an amount in excess of the jurisdiction amount requiring mandatory arbitration, plus interest and costs of this proceeding. COUNT II Cassandra Newman v. Mechanicsburg GF Investors and Central Pennsylvania Hospitality, lnc- t/a Holiday Inn Harrisbur~ West 21. Paragraphs 1 through 20 are incorporated herein by reference thereto. 22. As a result of the negligence of all Defendants set forth herein and the injuries caused by said Defendants to her husband David A. Newman, the Plaintiff Cassandra Newman has been deprived of the society, companionship, contributions and consortium of her husband, Plaintiff David A. Newman, all to her great detriment and financial loss. WHEREFORE, Plaintiff Cassandra Newman, demands judgment of Defendants in an amount in excess of the jurisdictional amount requiring mandatory arbitration, plus interest, and costs of this proceeding. TUCKER ARENSBERG & SWARTZ By: L"ke C. S~vart~, I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108 Telephone: 717/234-4121 Facsimile: 717/232-6802 ATTORNEYS FOR PLAINTIFFS -6- VERIFICATION I, DAVID A. NEWMAN, hereby certify that I am a Plaintiff in this action, and that the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. Dated: ~---/-7 //~ ''''~ ,2003 David A. Newman SHERIFF'S RETURN - REGULAR CASE NO: 2003-00775 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NEWMAN DAVID A ET AL VS MECHANICSBURG GF INVESTORS CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MECHANICSBURG GF INVESTORS the DEFENDANT , at 1855:00 HOURS, on the 27th day of February , 2003 at 5401 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to' MICHAEL WEISS, MANAGER ON DUTY ADULT IN CHARGE 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 6.90 Affidavit .00 Surcharge 10.00 .00 34.90 Sworn and Subscribed to before me this /~ ~- day of ~ J~gtB A.D. Y So Answers: R. Thomas Kline 02/28/2003 TUCKER ARENSBERG SWARTZ ~ 'Deput y~She~i f f -- ' SHERIFF'S RETURN - REGULAR CASE NO: 2003-00775 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NEWMAN DAVID A ET AL VS MECHANICSBURG GF INVESTORS CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CENTRAL PA HOSPITALITY INC T/A HOLIDAY INN HARRISBURG WEST the DEFENDANT , at 1855:00 HOURS, on the 27th day of February , 2003 at 5401 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to MICHAEL WEISS, MANAGER ON DUTY ADULT IN CHARGE 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /~ day of 77t~_~ ~3 A.D. / , Prothonotarl~ So Answers: R. Thomas Kline 02/28/2003 TUCKER ARENSBERG SW~RTZ ~ McCORMICK & PRIORE BY: Philip D. Priore, Esquire ATTY ID# 38987 30 South 15th Street Suite 1500 Philadelphia, PA 19102 (215) 972-0161 Fax (215) 972-5580 Attomeys for Defendants, Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife MECHANICSBURG GF INVESTORS and CENTRAL PENNSYLVANIA HOSPITALITY, INC. t/a HOLIDAY INN HARRISBURG WEST COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-0775 DEMAND FOR JURY TRIAl. TO THE PROTHONOTARY: Defendants, Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, by the undersigned attorney, hereby requests a trial by a jury of twelve (12) members plus two alternates; trial to proceed as long as there are twelve (12) members available. Dated: McCORMICK & PRIORE PHILI D(. PRIORE, ESQUIRE Attorneys for Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, McCor~cK & Pnton~. ATTOnn-~rS ^T L^w McCORMICK & PRIORE BY: Philip D. Priore, Esquire ATTY ID//38987 30 South 15th Street Suite 1500 Philadelphia, PA 19102 (215) 972-0161 Fax (215) 972-5580 Attorneys for Defendants Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife Vo MECHANICSBURG GF INVESTORS : and : CENTRAL PENNSYLVANIA : HOSPITALITY, INC. t/a HOLIDAY INN : HARRISBURG WEST : COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-0775 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter'this firm's appearance on behalf of the defendants, Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, in the above-referenced matter. Dated: McCORMICK & PRIORE BY: Attorneys for Defendants, Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West McConmcr & Prao ATroFa, mCS ^¢ L~w McCORMICK & PRIORE, P.C. BY: Philip D. Priore, Esquire Jared T. Hay, Esquire ATTY ID# 38987/88855 4 Penn Center Suite 800 1600 John F. Kennedy Blvd. Philadelphia, PA 19102 (215) 972-0161 Fax (215) 972-5580 To: Plaintiff's attorney You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be estered against you. Attorneys for Defendant Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Itoliday Inn Harrisbnrg West Attorneys for Defendants Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife MECHANICSBURG GF INVESTORS and CENTRAL PENNSYLVANIA HOSPITALITY, INC. t/a HOLIDAY INN HARRISBURG WEST COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-0775 ANSWER AND NEW MATTER OF DEFENDANT, CENTRAL PENNSYLVANIA HOSPITALITY, INC T/A HOLIDAY INN HARRISBURG WEST TO PLAINTIFFS' COMPLAINT Defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, (hereinafter referred to as "Holiday Inn"), by and through its attorneys, McCormick & Priore, hereby respond to the averments contained in plaintiffs David Newman and Cassandra McCoravaCK & Praon . Arro~Nm~ AT LAW Newman's Complaint in accordance with the Pennsylvania Rules of Civil Procedure and the Local Rules for the Court of Common Pleas of Cumberland County as follows: 1. Denied. Holiday Inn, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the troth of the averments contained in paragraph 1 of plaintiff's Complaint. Accordingly, they are deemed denied. 2. Admitted. 3. Admitted. 4. Admitted. COUNT I Plaintiff David A. Newman v. Defendants 5. Holiday Inn hereby incorporates by reference its response to the averments contained in paragraphs 1 through 4 of plaintiffs' Complaint as though fully set forth herein at length. 6. Denied. Holiday Inn, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the troth of the averments contained in paragraph 6 of plaintiff's Complaint. Accordingly, they are deemed denied. 7. Denied. Holiday Inn, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the troth of the averments contained in paragraph 7 of plaintiff's Complaint. Accordingly, they are deemed denied. Further, the averments of this paragraph are denied pursuant to Pa. R.Civ. P. 1029(e). 8. Denied. Holiday Inn, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph -2- McConM Cr & Praorm ATrora,~s AT LAW 8 ofplaintiWs Complaint. Accordingly, they are deemed denied. Further, the averments of this paragraph are denied pursuant to Pa. R.Civ. P. 1029(e). 9. Denied. Holiday Inn, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 9 of plaintiff's Complaint. Accordingly, they are denied and strict proof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 10. a-c. Denied. Holiday Inn, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 10 of plaintiffs' Complaint. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn hereby incorporates by reference its response to the averments contained in paragraph 9 of plaintiffs' Complaint. Further, Holiday Inn denies the existence and/or extent of plaintiff's alleged injuries. 11. Denied. The averments contained in paragraph 11 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable -3- McCovavncr: & Praor ATI~ AT LAW investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 11 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 12. Denied. The averments contained in paragraph 12 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 12 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the -4- McConM CK & Praor ATroI'~qEYS AT LAW contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 13. Denied. The averments contained in paragraph 13 of plaintiffs' Complaint constitute conclUsions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the troth of the averments contained in paragraph 13 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 14. Denied. The averments contained in paragraph 14 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed -5- McCora cK & Pmonz AqTO~S AT LAW denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 14 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 15. Denied. The averments contained in paragraph 15 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 15 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday -6- McCorazcr & Pmom Arromm~ A~ LAW Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 16. Denied. The averments contained in paragraph 16 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 16 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies 'that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). -7- McComvaCK & ATTORNEYS AT LAW 17. Denied. The averments contained in paragraph 17 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 17 of plaintiffs' Complaint, conceming plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 18. a-e. Denied. The averments contained in paragraph 18 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn specifically denies it was negligent at any time material hereto. To the contrary, Holiday Inn exhibited all due and reasonable care, appropriate under the circumstances, at all time material hereto. Further, after reasonable investigation, Holiday Inn presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 18 of plaintiffs' Complaint, -8- McCom~cK & Pmo~. Arromc~s AT LAW conceming plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 19. Denied. The averments contained in paragraph 19 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto, and that it failed to warn the guests of the hotel or correct the dangerous condition, as no such dangerous and/or defective condition ever existed. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). -9- McCoravnCK & A1TORNEYS AT LAW 20. Denied. The averments contained in paragraph 20 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto, and that it failed to warn the guests of the hotel or correct the dangerous condition, as no such dangerous and/or defective condition ever existed. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, demands that plaintiffs' Complaint be dismissed with prejudice or, alternatively, that judgment be entered in its favor together with its costs of defense, including attorney's fees, and any other relief deemed appropriate by the Court. COUNT II Plaintiff Cassandra Newman v. Defendants 21. Holiday Inn, hereby incorporates by reference its response to the averments contained in paragraphs 1 through 20 of plaintiffs' Complaint as though fully set forth herein at length. -10- McCor acr & ATTORNEYS AT LAW 22. Denied. The averments contained in paragraph 22 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Holiday Inn denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Holiday Inn specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Holiday Inn acted with all due and reasonable care, appropriate under the circumstances. Further, Holiday Inn specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Holiday Inn also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, demands that plaintiffs' Complaint be dismissed with prejudice or, alternatively, that judgment be entered in its favor together with its costs of defense, including attorney's fees, and any other relief deemed appropriate by the Court. NEW MATTER 23. Holiday Inn hereby incorporates by reference its responses to the averments contained in paragraphs 1 through 22 of plaintiffs' Complaint as though fully set forth herein at length. 24. 25. 26. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. Plaintiffs' claims may be barred by the applicable statute of limitations. Plaintiffs' claims are barred and/or limited by their failure to mitigate damages. -11- McCor~MICK & Pmopa Arromwmm AT LAW 27. Plaintiffs' claims may be barred and/or limited by plaintiff-husband's negligence, misuse, modification and/or alteration of the subject product. 28. Plaintiffs may lack standing to maintain this action. 29. Holiday Inn owed no duty to plaintiffs as asserted in the Complaint. 30. Holiday Inn breached no duty it may have owed to plaintiffs. 31. No act or omission of Holiday Inn caused, or was a substantial factor in causing, any injuries, damages and/or losses of which plaintiffs complain, the existence of which is denied. 32. 33. Plaintiffs suffered no compensable injuries. If plaintiffs suffered any alleged injuries, damages and/or losses, such injuries, damages or losses were caused by persons and/or entities over whom Holiday Inn had no control nor duty of control or for whom Holiday Inn is not responsible. 34. The damages allegedly sustained by plaintiffs were not proximately caused by Holiday Inn, nor was any act or omission by Holiday Inn a substantial factor in producing plaintiffs' alleged injuries. 35. Some or all of the plaintiffs' alleged injuries, damages and/or losses may be barred by the comparative and/or contributory negligence of the plaintiff-husband. 36. Plaintiff-husband may have assumed the risk of his injuries. 37. Holiday Inn incorporates by reference, and asserts as a defense, all applicable provisions of the Pennsylvania Comparative Negligence Act. 38. Pa. R.C.P. 238, as amended or adopted by the Pennsylvania Supreme Court, on its face and as applied, is violative of the Pennsylvania Constitution, the United States Constitution -12- McConMICK & Pmopa ATrOnN~S AC LAW and the Civil Rights Act as it imposes a chilling effect upon Holiday Inn's exercise of its constitutional rights and imposes a penalty on Holiday Inn for delays not attributable to it. 39. The collateral source rule does not apply such that, if plaintiff should be awarded money damages by a jury, such a possibility being specifically denied, then the amount of said damages must be reduced by the total amount of any and all payments the plaintiff has received from any and all collateral sources, any injuries or damages the plaintiff allegedly suffered in this matter. WHEREFORE, defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, demands that plaintiffs' Complaint be dismissed with prejudice or, alternatively, that judgment be entered in its favor together with its costs of defense, including attorney's fees, and any other relief deemed appropriate by the Court. McCORMICK & PRIORE, P.C. JARED T. HAY, ESQUIRE Attorneys for Defendants Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West Date: -13- McCopamcr & Pmo . ,~TrORNEYS AT LAW VERIFICATION I, Joel Lavoie, authorized agent for Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, hereby state that the facts set forth in the foregoing Answer and New Matter with PA.R.C.P.2252(d) New Matter of defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, to Plaintiff's Complaint are tree and correct to the best of my knowledge, information, and beliefi The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. section 4904 relating to unswom falsification to authorities. Date Authorized Agent for Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West, McCom tcr & Praor Arrom, sYS AT LAW CERTIFICATION OF SERVICE I, Jared T. Hay, hereby certify that I am an the attorney for defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West,, in the within action; that I am duly authorized to make this certification; and that on the 23rd day of April, 2003, I did cause a tree and correct copy of the Answer of defendant, Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West,, with New Matter to plaintiffs' Complaint, to be forwarded by first class United States mail to counsel, addressed as follows: Lee C. Swartz, Esquire Tucker Arensberg & Swartz 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 McCORMICK & PRIORE, P.C. ~ed T. Hay, Esqu{~ McCor uzcr & Pmo ATTORNEYS AT LAW McCORMICK & PRIORE, P.C. BY: Philip D. Priore, Esquire Jared T. Hay, Esquire ATTY ID# 38987/88855 4 Penn Center Suite 800 1600 John F. Kennedy Blvd. Philadelphia, PA 19102 (215) 972-0161 Fax (215) 972-5580 To: Plaintiff's attorney You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be ~e~tered against you. By:~ Y ~ ....... ~l~hillip D. Priore" Jared T. Hay Attorneys for Defendant Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West Attorneys for Defendants Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife Vo MECHANICSBURG GF INVESTORS : and : CENTRAL PENNSYLVANIA : HOSPITALITY, INC. t/a HOLIDAY INN : HARRISBURG WEST : COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-0775 ANSWER AND NEW MATTER OF DEFENDANT, MECHANICSBURG GF INVESTORS TO PLAINTIFFS' COMPLAINT Defendant, Mechanicsburg GF Investors, (hereinafter referred to as "Mechanicsburg GF"), by and through its attorneys, McCormick & Priore, hereby respond to the averments contained in plaintiffs David Newman and Cassandra Newman's Complaint in accordance with McCov vaCK & Praon . ATrOILNEYS AT LAW the Pennsylvania Rules of Civil Procedure and the Local Rules for the Court of Common Pleas of Cumberland County as follows: 1. Denied. Mechanicsburg GF, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 1 of plaintiff's Complaint. 2. Admitted. 3. Admitted. 4. Admitted. Accordingly, they are deemed denied. COUNT I Plaintiff David A. Newman v. Defendant_q Mechanicsburg GF hereby incorporates by reference its response to the averments contained in paragraphs 1 through 4 of plaintiffs' Complaint as though fully set forth herein at length. 6. Denied. Mechanicsburg GF, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 6 of plaintiff's Complaint. Accordingly, they are deemed denied. 7. Denied. Mechanicsburg GF, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 7 of plaintiff's Complaint. Accordingly, they are deemed denied. Further, the averments of this paragraph are denied pursuant to Pa. R.Civ. P. 1029(e). 8. Denied. Mechanicsburg GF, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in -2- McCoravncK & Prisons. ATTORNEYS AT LAW paragraph 8 of plaintiffs Complaint. Accordingly, they are deemed denied. Further, the averments of this paragraph are denied pursuant to Pa. R. Civ. P. 1029(e). 9. Denied. Mechanicsburg GF, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 9 of plaintiff's Complaint. Accordingly, they are denied and strict proof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 10. a-c. Denied. Mechanicsburg GF, after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 10 of plaintiffs' Complaint. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF hereby incorporates by reference its response to the averments contained in paragraph 9 of plaintiffs' Complaint. Further, Mechanicsburg GF denies the existence and/or extent of plaintiff's alleged injuries. 11. Denied. The averments contained in paragraph 11 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed -3- McCor cK & Arrorccm~ A~ LAW denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 11 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 12. Denied. The averments contained in paragraph 12 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 12 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit -4- McComacK & Pmon . ATrOriNEYS AT LAW where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 13. Denied. The averments contained in paragraph 13 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 13 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is -5- McConM CK & Praon . ATTOPflXlEYS AT LAW denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 14. Denied. The averments contained in paragraph 14 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 14 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 15. Denied. The averments contained in paragraph 15 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as -6- McCoremcr & Pmorm A~'~oraN~s A~ LAW to the truth of the averments contained in paragraph 15 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 16. Denied. The averments contained in paragraph 16 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 16 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all -7- McCopJvnCK & Proofs A~FOItNEYS AT LAW due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 17. Denied. The averments contained in paragraph 17 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF after reasonable investigation, presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 17 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). -8- McComacr & ATTOIkNEYS AT LAW 18. a-e. Denied. The averments contained in paragraph 18 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF specifically denies that it was negligent at any time material hereto. To the contrary, Mechanicsburg GF exhibited all due and reasonable care, appropriate under the circumstances at all times material hereto. Further, after reasonable investigation, Mechanicsburg GF presently lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 18 of plaintiffs' Complaint, concerning plaintiffs' characterization of plaintiff, David Newman's injuries, and therefore those allegations are denied and strict proof thereof is demanded. Further, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 19. Denied. The averments contained in paragraph 19 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto, and that it failed to warn the guests of the hotel or correct the dangerous -9- McConMiCK & Praopa Arrora~s AT LAW condition, as no such dangerous and/or defective condition ever existed. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). 20. Denied. The averments contained in paragraph 20 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto, and that it failed to warn the guests of the hotel or correct the dangerous condition, as no such dangerous and/or defective condition ever existed. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate under the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendant, Mechanicsburg GF Investors, demands that plaintiffs' Complaint be dismissed with prejudice or, altematively, that judgment be entered in its favor -10- McCora & Pmon . ATTORNEYS AT LAW together with its costs of defense, including attorney's fees, and any other relief deemed appropriate by the Court. COUNT II Plaintiff Cassandra Newman v. Defendants 21. Mechanicsburg GF, hereby incorporates by reference its response to the averments contained in paragraphs 1 through 20 of plaintiffs' Complaint as though fully set forth herein at length. 22. Denied. The averments contained in paragraph 22 of plaintiffs' Complaint constitute conclusions of law to which no response is required. Accordingly, they are deemed denied. If and to the extent further response is deemed necessary, Mechanicsburg GF specifically denies the existence of any alleged dangerous and/or defective condition in the bathtub shower unit where plaintiff allegedly was injured and/or that it knew or should have known of such condition. Also, Mechanicsburg GF specifically denies that it was careless and/or negligent at any time material hereto. To the contrary, at all times material hereto, Mechanicsburg GF acted with all due and reasonable care, appropriate m~der the circumstances. Further, Mechanicsburg GF specifically denies that any act or omission by it caused or was a substantial factor in causing the alleged injuries and/or damages allegedly suffered by the plaintiffs, the existence of which is denied. Mechanicsburg GF also denies the averments in this paragraph pursuant to Pa.R.C.P. 1029(e). WHEREFORE, defendant, Mechanicsburg GF Investors, demands that plaintiffs' Complaint be dismissed with prejudice or, alternatively, that judgment be entered in its favor ~11- McComvlICK & Pmonv. Arrom~-m~s AT LAW together with its costs of defense, including attorney's fees, and any other relief deemed appropriate by the Court. NEW MATTER 23. Mechanicsburg GF hereby incorporates by reference its responses to the averments contained in paragraphs 1 through 22 of plaintiffs' Complaint as though fully set forth herein at length. 24. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 25. Plaintiffs' claims may be barred by the applicable statute of limitations. 26. Plaintiffs' claims are barred and/or limited by their failure to mitigate damages. 27. Plaintiffs' claims may be barred and/or limited by plaintiff-husband's negligence, misuse, modification and/or alteration of the subject product. 28. Plaintiffs may lack standing to maintain this action. 29. Mechanicsburg GF owed no duty to plaintiffs as asserted in the Complaint. 30. Mechanicsburg GF breached no duty it may have owed to plaintiffs. 31. No act or omission of Mechanicsburg GF caused, or was a substantial factor in causing, any injuries, damages and/or losses of which plaintiffs complain, the existence of which is denied. 32. Plaintiffs suffered no compensable injuries. 33. If plaintiffs suffered any alleged injuries, damages and/or losses, such injuries, damages or losses were caused by persons and/or entities over whom Mechanicsburg GF had no control nor duty of control or for whom Mechanicsburg GF is not responsible. -12- McCom/IICK & PI~IOl~ A~rora~s ^~ LAw 34. The damages allegedly sustained by plaintiffs were not proximately caused by Mechanicsburg GF, nor was any act or omission by Mechanicsburg GF a substantial factor in producing plaintiffs' alleged injuries. 35. Some or all of the plaintiffs' alleged injuries, damages and/or losses may be barred by the comparative and/or contributory negligence of the plaintiff-husband. 36. Plaintiff-husband may have assumed the risk of his injuries. 37. Mechanicsburg GF incorporates by reference, and asserts as a defense, all applicable provisions of the Pennsylvania Comparative Negligence Act. 38. Pa. R.C.P. 238, as amended or adopted by the Pennsylvania Supreme Court, on its face and as applied, is violative of the Pennsylvania Constitution, the United States Constitution and the Civil Rights Act as it imposes a chilling effect upon Mechanicsburg GF's exercise of its constitutional rights and imposes a penalty on Mechanicsburg GF for delays not attributable to it. 39. The collateral source rule does not apply such that, if plaintiff should be awarded money damages by a jury, such a possibility being specifically denied, then the amount of said damages must be reduced by the total amount of any and all payments the plaintiff has received from any and all collateral sources, any injuries or damages the plaintiff allegedly suffered in this matter. WHEREFORE, defendant, Mechanicsburg GF Investors, demands that plaintiffs' Complaint be dismissed with prejudice or, alternatively, that judgment be entered in its favor -13- McCoravaCK & Pmo Arrora, r~s A~ LAW together with its costs of defense, including attorney's fees, and any other relief deemed appropriate by the Court. McCORMICK & PRIORE, P.C. Dated: By: ~{ i: //~ ~ILIP D. PR~OR~,, ESQUIRE JARED T. HAY, ESQUIRE Attorneys for Defendants Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West -14- McCoravacr & Pmo~ Arrom,mYs ~T LAw ~/~ VERIFICATION I, j~l Lavoie, authorized agent for Mechanicsburg GF Investors hereby state that the facts set forth in the foregoing Answer and New Matter with PA.R.C.P.2252(d) New Matter of defendant, Mechanicsburg GF Investors, 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. section 4904 relating to unsworn falsification to authorities. Date JoellLavoie Authorized Agent for Mechanicsburg GF Investors McCor cK & Pr on . Arrora, mYS AT LAW CERTIFICATION OF SERVICE I, Jared T. Hay, hereby certify that I am an the attorney for defendant, Mechanicsburg GF Investors, in the within action; that I am duly authorized to make this certification; and that on the 23ra day of April, 2003, I did cause a tree and correct copy of the Answer of defendant, Mechanicsburg GF Investors, with New Matter to plaintiffs' Complaint, to be forwarded by first class United States mail to counsel, addressed as follows: Lee C. Swartz, Esquire Tucker Arensberg & Swartz 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 McCORMICK & PRIORE ~'r~ed T. Hay, Esquire McConmcK & AT~o~rs~rs ^¢ LAw CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: PA DAVID A. NEWMAN VS, MECHANICSBURG GF INVESTORS Court of Common Pleas - Cumberland County, TERM: / / CASE NO: 03-0775 As a prerequisite to service ora subpoena for documents and things pursuant to Rule 4009.22. RecordTrak on behalf of_ PHILIP PR/ORE Defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached tbereto was ' - totaled or dehvered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) No objection to the subpoena has been received or it has been Wmved, and (3) Tbe subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 01/ll/2004 PHILIP PR/ORE ~A-ff6rney lbr Deti~ndanf - -- RT#: 109001 CASE NAME: DAVID A. NEVqMAN TO: DAVID A. NEWMAN COURT: Court Of Common Pleas - Cumberland County, Pa vs. TERM: / / MECHANICSBURG GF INVESTORS DOCKET: 03-0775 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS LEE C. SWARTZ TUCKER ARENSBERG TUCKE ARENSBERG & SWARTZ 111 NORTH FRONT STREET, P.O. BOX 889 HARRISBURG PA 17108 December 22, 2003 Please take notice that on behalf of PHILIP PRIORE, attorney for Defendant, RecordTrak intends to serve a subpoena identical to the one(s) attached to this notice. You have until January 12, 2004 to file of record and serve upon the undersigned an objection to the subpoena(s). If no objection is made, the subpoena(s) will be served. IF PLAINTIFF'S COUNSEL AGREES TO WAIVE THE 20 DAY NOTICE PERIOD, PLEASE INDICATE BELOW AND FAX SAME TO THE UNDERSIGNED AT YOUR EARLIEST OPPORTUNITY. 1F YOU WISH TO PURCHASE COPIES OF THE RECORDS, _PLEASE CONTACT RECORDTRAK FOR PRICING AND FAX THIS CORRESPONDENCE BY January 12, 2004 TO (610) 992-1416 OR REPLY THROUGH OUR WEB SITE AT RecordTrak. com. Lisa Mancuso 610-354-8321 RECORDTRAK 651 Allendale Road PO Box 61591 King of Prussia, PA 19406 TAG 15 LIST OF RECORD CUSTODIANS AND SUBPOENAS __ Yes, I would like a copy of all of the records listed above. Yes, I would like specific records I have indicated above. SIGNATURE: Date: FIRM: Note: An order for records from plaintiff's counsel will signify that plaintiff's counsel has agreed to waive the notice period effective as of the date of the record order. · YES, I AGREE TO WAIVE THE 20 DAY NOTICE ~'~OD. DAVID A. NEWMAN VS. MECHANICSBURG GF INVESTORS Signature of Plaintiff's Counsel: FIRM: COURT: Court Of Common Pleas - Cumberland County, Pa TERM: / / DOCKET: 03-0775 Date: Page 2 An original subpoena for the following case is needed RT 109001.15 Court PA-Cumberland Term / / Docket 03-0775 Plaintiff DAVID A. NEWMAN Defendant MECHANICSBURG GF INVESTORS Deponent Doctor's Community Hospital (path) For Defendant Deposition Date February 2, 2004 Time 10:00 AM Place RECORDTRAK 651 Allendale Road PO Box 61591 King of Prussia, PA 19406 (soo) 220-1291 Request Date January 11, 2004 IAInf°rmati°n ** ** 1. ALL CYTOLOGY SLIDES, PATHOLOGY SLIDES AND BLOCKS AND LL CORRESPONDING REPORTS. CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: PA DAVID A. NEWMAN VS. MECHAN1CSBURG GF INVESTORS Court of Common Pleas - Cumberland County, TERM: / / CASE NO: 03-0775 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22. RecordTrak on behalf of PHILIP PRIORE Defendant certifies that A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) No objection to the subpoena has been received or it has been waived, and (3) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 01/11/2004 G/PHILIP PRIORE Attorney Ibr Detenclant RT#: 109001 CASE NAME: DAVID A. NEWMAN DAVID A. NEWMAN VS. MECHANICSBURG GF I31VESTORS COURT: Court Of Common Pleas - Cumberland County, Pa TERM: / / DOCKET: 03-0775 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS TO: LEE C. SWARTZ TUCKER ARENSBERG TUCKE ARENSBERG & SWARTZ 111 NORTH FRONT STREET, P.O. BOX 889 HARRISBURG PA 17108 December 22, 2003 Please take notice that on behalf of PHILIP PRIORE, attorney for Defendant, RecordTrak intends to serve a subpoena identical to the one(s) attached to this notice. You have until January 12, 2004 to file of record and serve upon the undersigned an objection to the subpoena(s). If no objection is made, the subpoena(s) will be served. IF PLAINTIFF'S COUNSEL AGREES TO WAIVE THE 20 DAY NOTICE PERIOD, PLEASE INDICATE BELOW AND FAX SAME TO THE UNDERSIGNED AT YOUR EARLIEST OPPORTUNITY. IF YOU WISH TO PURCHASE COPIES OF THE RECORDS, PLEASE CONTACT RECORDTRAK FOR PRICING AND FAX THIS CORRESPONDENCE BY January 12, 2004 TO (610) 992-1416 OR REPLY THROUGH OUR WEB SITE AT ReeordTrak. eom. Lisa Mancuso 610-354-8321 RECORDTRAK 651 Allendale Road PO Box 61591 King of Prussia, PA 19406 LIST OF RECORD CUSTODIANS AND SUBPOENAS rAG ~ECORD CUSTODIAN ~IATERIALS BEING OBTAINED 15 DOCTOR'S COMMUNITY [. ALL CYTOLOGY SLIDES, PATHOLOGY SLIDES **AND BLOCKS** AND ~IOSPITAL (PATH) ~LL CORRESPONDING REPORTS. Yes, I would like a copy of all of the records listed above. Yes, I would like specific records I have indicated above. SIGNATURE: Date: FIRM: Note: An order for records from plaintiff's counsel will signify that plaintiff's counsel has agreed to waive the notice period effective as of the date of the record order. YES, I AGREE TO WAIVE THE 20 DAY NOTICE PERIOD. DAVID A. NEWMAN VS. MECHANICSBURG GF INVESTORS COURT: Court Of Common Pleas - Cumberland County, Pa TERM: / / DOCKET: 03-0775 Signature of Plaintiff s Counsel: Date:_ FIRM: Page 2 II An original subpoena for the following case is needed RT Court Term Docket P~aintiff Defendant Deponent For Deposition Date Time Place Request Date 109001.15 PA.Cumberland II 03-0775 DAVID A. NEWMAN MECHANICSBURG GF INVESTORS Doctor's Community Hospital (path) Defendant February 2, 2004 10:00 AM RECORDTRAK 651 Allendale Road PO Box 61591 King of Prussia, PA 19406 (800) 220-1291 January 11, 2004 Information 1. ALL CYTOLOGY SLIDES, PATHOLOGY SLIDES **AND BLOCKS** AND II ALL I[CORRESPONDING REPORTS. McCORMICK & PRIORE, P.C. BY: Philip D. Priore, Esquire Jared T. Hay, Esquire ATTY ID# 38987/88855 Four Penn Center Suite 800 1600 John F. Kemledy Boulevard Philadelphia, PA 19103 (215) 972-0161 Fax (215) 972-5580 Attorneys for Defendants Mechanicsburg GF Investors and Central Pennsylvania Hospitality, Inc. t/a Holiday Inn Harrisburg West DAVID A. NEWMAN and CASSANDRA NEWMAN, his wife V. MECHANICSBURG GF INVESTORS and CENTRAL PENNSYLVANIA HOSPITALITY, 1NC. t/a HOLIDAY INN HARRISBURG WEST COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-0775 PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter settled, discontinued, and ended upon payment of your costs only. TUCKER, ARENSBERG & SWARTZ Dated: Lee S~vartz, Esquire O Attorney for Plaintiffs, David A. Newman and Cassandra Newman McCor cr & Pmon ATTORNEYS AT LAW