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Home My WebLink About98-06839 v ri 7 C N T- (o. IN TI IF COURT OF COMMON PITAS Cl!MIII?RLAND COUNTY, I'FNNSYLVANI A l : No. Civil r\,tion - O Law O Fquity Ridmrd A. Carman, Individo.d 417 Rithy Read Mt,baui,sbutg, Cuuikoland Camay, VA 17055 and Clarence 11. 1 lvinly, III 1) & A Inc. 11 Thomas Drive '1'/A Rafferty's Corporation Mechanicsburg, PA 17055 ver%th registered addr.: 710 W. Main Street, Mechanicsburg, Cumberland County, I'A 17055 Donald E. Dinello, Individually and as Corporate Officer for D & A. Inc. 2405 Linglcstown Rd I larrisburg, Dauphin County, PA 't'weet, Inc. T/A Rumors 251 Enola Road Enola, Cumberland County, PA PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of sununons in the above-captioned action. Writ of Summons shall be issued and forwarded to ( ) Attorney (x) Sherrif ohn F. Lvons Attorney At Law 112 Walnut Street Harrisburg, PA 17101 (717) 238-4777 Names/Address/Telephone No. of Attorney WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Er\l l!) I? . l Vt? Prothonotary Datc: nkrv_..?"` by: ??: c ?? 4 ?CA<InCl;ln s' Deputy O Check here if reverse is issued for additional information PROTHON. - 55 Date: 12/3/98 X21 rj :,^ 14 9 C, =' r 1 J 66G/ ;,,' y ? -a 49 JO ??tw l i Q ..+P7 , ??o 3o 5'Y ?a Le?L<. ?LCZ?w '?f ^,S_ ?....._ ? . ??''-?=w ? ^-??. __ ?? %? //? ?{{ive of t4c oS4erif f Man Jane Sncder Itwl I'stmc I kpiq William T. Tulle .Ail tctlur Dauplun C0111111 Harnsburg.l'ennsNkania 17101 ph I7171255.26(d) Ifi, t7171255.2KS9 Jack Lotwick Sheriff Commonwealth of Pennsylvania HEINLY CLARENCE H I I I Vs County of Dauphin DINELLO DONALD E Sheriff's Return Ralph G. McAllister 0%1e1' IkpudS Michael W. Rinehart Asssmnt Chieflklwty No. 2522-T - - -1998 OTHER COUNTY NO. 98-6839 CIVIL TERM AND NOW: December 17, 1998 at 1:55PM served the within PRAECIPE FOR WRIT OF SUtRdONS upon DINELLO DONALD E AS CORPORATE OFFICER by personally handing FOR D s A INC to DEF. 1 true attested copy(ies) of the original PRAECIPE FOR WRIT OF SUMMONS and making known to him/her the contents thereof at 2405 LINGLESTOWN ROAD HARRISBURG, PA 17112-0000 Sworn and subscribed to before me this 17TH day of DECEMBER, 1998 PROTHONOTARY Sheri Sheriff's costs: $31.50 PD RCPT NO GM So Answers, (n f f ice of the ,?$4priff Man, Jane Sncder Real haale Iklxm william'I•. Tull% Sohcuor Dauphin Counk Harrisburg. Pcnnsyl%ania 171111 ph. (717) 255•2660 1L.:(717)255.2%Xv Jack Lotwick Sheriff Ralph G McAllister Chkflkpory Michael W. Rinehart A,m.wm Clue Ik7xa5 Commonwealth of Pennsylvania HEINLY CLARENCE H III Vs County of Dauphin DINELLO DONALD F Sheriff's Return No. 2522-T - - -1998 OTHER COUNTY 00. 98-6839 CIVIL TERM AND NOW: December 17, 1998 at 1:55PM served the within PRAECIPE FOR WRIT OF SUMMONS upon DINELLO DONALD E by personally handing to DEF. 1 true attested copy(ies) of the original PRAECIPE FOR WRIT OF SUMMONS and making known to him/her the contents thereof at 2405 LINGLESTOWN ROAD HARRISBURG, PA 17112-0000 Sworn and subscribed to before me this 17TH day of DECEMBER, 1998 r I 7 PROTHONOTARY So Answers, Sher Sheriff's Costzk: $31.50 PD ,IF'. /16/1998 8807 GM In The Court of Connnon Pleas of Cumberland Counq. Pennsylvania Clarence H. Ileinly, III VS. Richard A. Carman, et. al. Serves Donald E. Dinello, as Corporate Officer for D 6 A It)('. ,No. 98-68.19 Civil _,19_ Now, 1211 _ 1 98 19 1 SIIERIFF OF CC>IRERLA\D COC\Tl, P:1 do hereby deputize the Sheriff of Dauphin County to execute this Writ. this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland Counn. Pa. Affidavit of Service \Ow l9-. at o'clock M. served the at by handing to attested copy of the original the contents thereof. So answers. a true and and made known to Sheriff of COSTS Sisorn and subscribed before me this day of SERVICE S 19 MILEAGE AFFIDAVIT County, Pa. 5 In"Tbe Court of Common Pleas or Cumberland Countq. Ile it ns%hania Clarence if. Ile inly, II I 1'S. Richard A. Carman, Vt. n1. Serves Donald E. Dinello No. 98-6819 C i I i l 19 Nnw, 12111/98 I't_,1 sinuFF OF ( VNIHERLANII 011 'Nl'1 P:1 do herebs depuute tile sherifror Dauphin County to execute this %%rit. this deputation being made at the request and risk of the Plaintiff. S eeriff of Cumberland Counts. Pa. Affidavit of Sen-ice Now, at 19 . at o'clock NI, sers"ed the by handing to attested copy of the original the contents thereof. So ansssers. Sheriff of COSTS Sssorn and subscribed before me this day of SERVICE 5 MILEAGE AFFIDAVIT Count. Pa. a true and and made known to IN TI II: COURT' OF COMMON PIT-AS CU\11.EItLANI) COUNTY, PENNS)TVANIA N. r. Civil Action • O Law O Equity Richard A. Camun, Individual 417 Richy'Road Mechanicsburg, Cumberland County, PA 17055 and Clarence 11. 1lcinly, III 1) & A Inc. 11 Thnutas Drive T/A Rafferty's Corporation Meclmnicsburg, PA 17055 versus registered adds.: 710 W. Main Street, Mechanicsburg, Cumberland County, PA 17055 Donald E. Dittello, Individually and as Corporate Officer for D & A, Inc. 2405 Linglestown Rd Harrisburg, Dauphin County, PA Tweet, Inc. 'I'/A Rumors 251 Enola Road Enola, Cumberland County, PA PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARl' OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ( ) Attorney (s) Sherrif John F. Lvons Attorney At Law 112 Walnut Street Harrisburg. PA 17101 (717) 238.4777 Names/Address/Telephone No. Date: 12/3/98 of Attorney TRUZE ( r'Y F"iwyll .:,,. In Testimony I e: r :' WRIT OF SUMMONS and the wal of said Coin `I..,C&:I+ TO THE ABOVE NAMED DEPENDANT(S): k il ?tp pnotary YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENC S notary ACTION AGAINST YOU. t LLUU.ai) fz. Gnc'7 Prothonotary a Dare-QeC•.3r t I'?J?- by: r 1 OCheck bete if reverse is issued for additional information Deputy PROTHON.. 55 G ??//C?/1?F?'yJ ? w ?y 7/c+yyv!?G? ? C %?.' ? c / ? vL / J Q ?r ??? ?: `7tu.ecw. 51iba!ILl":= i:t::'Jb:i 1?F:.;!P..Ah CASE NO: 1998-068i7 I' PF;N:.1 'rLVld:: COMMONWEALTH OF COUNTY OF CUMHERI,ANU HEINLY CI.ARENCI•: H I I I V:1 . CARMAN RICHARD A 1•:T AL WESLEY COOK , :;h-•i::1 of Deputy Sheriff Of CUMBERLAND County, P-1m:ryl1:.un:,,, wh, I,,irnl duly _iworn according to law, says, t ho W1111111 WP I T ! !F was served upon D & A IN 'I'/A kl:Pl f•;I+'I"t: k( iI,A'fIUN the defendant, at 9:22 HOUk:;, +ni t h'. tat day of March 1999 at 710 'r. tAAltl II'I' MECHANCISBURC1 PA 170',', CUMBERLAND -------- - County, Pennsylvania, by h.indin,I t,? SCOTTY SPRUCBANK a true and -iCtcrtCi d c,.>Iiy v1 t h,- WI, I'C OI' SUMMONS and at the sanu-- tim(r dircctiny Ilia nttuntion to the contents thereof. Sheriff's Costs: So answers:.l Docketing 18.00 ?;:• Service 6.20 Affidavit .00 Surcharge 8.00 R-Th mas ine, Sheriff $37-7G-JoN F. LYONS 03 02/1999 ? L by Sworn and subscribed to before me this ?.t day of ))ta,tk- 19_ A. D. C. )h,ec,,. ti,O, -r 0 I.1101 ibL a ry eputy bnerIL L CL.ARENCE 11. 1IHNLY, 111, Plaintiff V, RICHARD A. CARMAN, Individually, D & A, INC., t/a RAEEERTY'S CORPORATION, DONALD E. DINELLO, Individually and as Corporate Officer for D & A, Inc., and TWEET, INC., t/a RUMORS, Defendants IN TI IE COURTOF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 98.6839 CIVIL TFRNI : CIVIL ACTION - LAW PRAECIPE TO REISSUE WRIT TO THE PROTHONOTARY: Pursuant to Pa.R.C.P. No. 401(6)(1), please reissue the Writ of Summons in the above- captioned civil action. Date: cT-3 -7° By: jvto ney for 1'I:untttt 112 Walnut Stree Harrisburg, PA 17101 (717) 238-4777 (717) 238-46793 (Telecopier) I.D. N 23859 r= c.? c• ti ,;_' ??` r? C? L... 1- Li !1 ?"-• ?: a .?ohn F. Lyons Atlornc}' at Law 108-112 Walnut Street ?larrisburg. PA 17101 j i C• i p7 f a° ? CLARENCE H, HEINLY. III Plaintiff V. RICHARD J. CARMAN, Individually, D&A, INC.. Ua RAFFERTY'S CORPORATION, DONALD E. DINELLO, Individually and as Corporate Officer for D&A. Inc., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 98.6839 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS W You have been sued in Court. If you wish to defend against the claims set forth in the following papers, 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. Court Administrator, Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 '4' NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por obogado y archivar en la corte en forma 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 entrara una orden contra usted sin previo aviso o notificacion y por cualquiere queja o alivio que es pedido en la peticion de demanda. Listed puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator, Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 Date: / z -5--o o Jo F. Lyons, Es ire orney for Plai iff 12 Walnut Str et Harrisburg PA 17101 (717) 238-4777 (717) 238-4793 - Telecopier I.D. # 23859 CLARENCE 11. IIE.INL.Y, I I I I'1,(ilit iI I. v. RICHARD J. CARMAN, Individually, D&A, INC., t/a RAFFERTY'S CORPORATION, DONALD E. DINELLO, Individually and as Corporate Officer for D&A, Inc., Defendants IN THE ('O 1PT ()h ('f)MMON PLEAS CIA4Til:RLANI) t'nUN'!"i, PENNSYLVANIA 98-61339 CIVI1. 'T'ERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT M COMES NOW, the Plaintiff, Clarence H. Heinly, III, by and through his attorney, John F. Lyons, Esquire, and respectfully represents and avers as follows: 1. Plaintiff, Clarence H. Heinly, III, is an adult individual, currently residing at. 11 Thomas Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Richard Carman (hereinafter "Carman"), is an adult individual, chose last known address is 417 Ricky Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Defendant, D&A, Inc. (hereinafter "D&A, Inc."), is a Pennsylvania Business Corporation, formerly trading as Rafferty's and now trading as Scotties Beef and Reef Lounge, with a principal office and regular place of business at 710 West Main Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. Defendant, Donald Dinello (hereinafter "Dinello"), is an adult individual, with a last known address of 2405 Linglestown Road, Harrisburg, Dauphin County, Pennsylvania. 5. At all t inv•ra t•I?•v,urt li?r,.tn, h••t?nd.utt Pt.A, Inc., trading a:, and/or t,•I t y':;, w.in th- ul&.t cat .i valid liquor license is:;ued l,y thy- P-nnsylvanin Liquor CGntl'oI Board, bearing License No. 81891(. 6. Subsequent to the inc•idcnts giving rise to Plaintiff's claims herein, Plaintiff beliv.:;, and therefore avers, that Defendant, D&A, Inc. continued to hold a valid liquor license as averred in Paragraph 5 hereof, but: changed its fictitious name to Scotties Beef and Reef Lounge. 7. At all times material and relevant hereto, Plaintiff believes, and therefore avers, that Defendant, Dinello, was the sole shareholder and chief executive officer and/or president of Defendant, D&A, Inc., trading and/or doing business as Rafferty's. 8. At all times material and relevant hereto, Plaintiff believes, and therefore avers, that Defendant, Dinello, as the sole shareholder and chief executive officer and/or president of Defendant, D&A, Inc., trading and doing business as Rafferty's, and Defendant, D&A, Inc., acted through their agents, servants, representatives and/or employees, who were acting within the course and scope of their agency and/or employment by the said Defendants. 9. Upon information and belief, and at all times relevant hereto, on or before December 8, 1996, Defendant Dinello, as president and/or chief executive officer and/or sole shareholder of D&A, Inc., trading and/or doing business as Rafferty's, and Defendant, D&A, Inc., trading and/or doing business as Rafferty' s, 2 owned, I,o:;a.•:ai..d, notro1L•d, ',1n•;.0 ?•A, tit ut,rp?I ui?f m,sinti.un?d an ("ItabIialurornt I, r,st • 1 at .11tt W,,;t P4,tiII :u r.•,•t , tr,.•. It-nttc sl.arl, Cumberland County, 14•1111:;ylvania iu which IicoholI b.•v.•aages, were offered for sale to th'. Public pursuant to the {''ennsylvania Liquor Code, 47 Pa.C.s. §4-401, et .rieq., and the lawfully promulgated rules and regulations thereunder, all of which were known or should have been known to the named Defendants herein. 10. Upon information and belief and at all times material hereto, Defendant, Dinello, president and/or chief executive officer and/or sole shareholder of D&A, Inc., trading and doing business as Rafferty's, and Defendant, D&A, Inc., acted or failed to act for himself or were acting or failing to act by and through their duly authorized agents, servants, representatives and/or employees, disclosed or undisclosed, who acted or failed to act at the direction of the said Defendants and within the scope of their authority and within the course of their employment. 11. Upon information and belief, and at all time material and relevant hereto, the said Defendants, Dinello and D&A, Inc., employed bartenders and/or waiters and/or waitresses and/or bar managers in the course of conducting business as a liquor and/or restaurant establishment. 12. Upon information and belief and at all times material hereto, on or about December 7, 1996 and the early morning hours of December 8, 1996, Plaintiff was a business invitee and/or patron of the said Defendant, D&A, Inc. at its bar and restaurant. 3 l1, I I I ,r,II infnlnbltl"n .uh] L. li•2 ,nul at ?I11 tiIII. •:: III II,,Iial , II d I ••V.i Ii t. Ii•.'r-t. 0, 1J"- ,tIld ih^ - ill l y ... _`1'l l 1 I19 hours of. Decomber 8, 1D9r;, D•ef• lidant, Carman, w,ks I business invitee and/or patron of the said Defendant, MA, Inc.. 14. On the night in (plost.ion, Plaintiff helieves, and therefore avers, that Defendants Dinello and D&A, Inc. were charging a "cover" to enter the establishment as there was live entertainment. 15. On the night in question, Plaintiff believes, and therefore avers, that the entertainment resulted in a larger crowd of people than usual. 16. On the night in question, Plaintiff believes, and therefore avers, that, despite anticipating a larger crowd than usual, Defendants Dinello and D&A, Inc. failed to have proper security or a bouncer "present" to offer protection and safety to its patrons. 17. Defendant, Carman, was negligently, carelessly, wantonly, willfully and recklessly sold and served liquor and/or malt or brewed beverages while he was exhibiting visible signs of intoxication. 18. Plaintiff believes, and therefore avers, that Defendant Carman was served multiple alcoholic beverages and/or liquor, and/or malt and/or brewed beverages by the agents, servants, representatives and/or employees at or about the time Defendant Carman initially entered Rafferty's. 4 ID. I,l.1iit i It h??l i,•v, , ;U,,l t h,•;,•1 „r, ,Iv'-1::, t li st Detendant Carman was given two, 1 ",•11 ip:." by th,+ iy,.nt.! servants, representatives and/or ,mploye-2:; of Defendant:; D&A, Inc. and Dinello, which "chips," ropresented pre-payment for two additional alcoholic beverages and/or Liquor and/or malt and/or brewed beverages at "last call" in order to permit Defendant Carman to continue imbibing alcoholic beverages after "last call". 20. Plaintiff believes, and therefore avers, that after being served his first alcoholic beverage by the agents, servants, representatives and/or employees of Defendants Dinello and D&A, Inc., Defendant Carman became loud and boisterous causing him to be warned to quiet down or he would be "cut off" and asked to leave. 21. Plaintiff believes, and therefore avers, that after becoming loud and boisterous, and despite exhibiting other visible signs of intoxication, Defendant Carman was served additional alcoholic beverages. 22. Plaintiff believes, and therefore avers, that Defendant Carman continued consuming alcoholic beverages and continued with his loud, boisterous and disruptive behavior despite the warning from the Defendant Dinello's and D&A, Inc.'s agents, servants, representatives and/or employees. 23. Plaintiff believes, and therefore avers, that upon Defendant Carman continuing with his loud, boisterous and disruptive conduct, the agents, servants, representatives and/or 5 employees of Defendant, Dirxella and D&A, Inc. took awry any rr,maining alcoholic beveray? 11")m him. 2..4. Upon having his alcoholic beverage and/or b?-verages taken from him, Defendant Carman became more unruly, violent and contumacious and acted as follows: a. walked around the end of the bar and knocked the cup containing his alcoholic beverage from the hand of Defendant Dinello's and D&A, Inc.'s agent, servant, representative and/or employee; b. threw full, partially full and empty glasses, bottles and containers around the bar; C. pulled chairs and stools from the bar and threw them about the barroom; d. yelled, screamed, cursed and used obscenities; and e. without provocation or cause, struck Plaintiff from behind. 25. Plaintiff believes, and therefore avers, that Defendant Carman had frequented the bar on numerous occasions prior to December 8, 1996. 26. Plaintiff believes and therefore avers that as a result of the many visits to Defendants' bar and other contact with Defendant Dinello's and D&A, Inc.'s agents, servants, representatives and/or employees, Defendant Carman was known as a person of intemperate habits. 27. Plaintiff believes, and therefore avers, that Defendant Carman was known to Defendants Dinello and D&A, Inc., their servants, managers, officers and/or employees as a person who 6 became Iuud, t:(1u1)111:;'MI" 11111 vi,,1-111 wh'•n imi,ihin't alcoholic bever,lgi-; nil ! I:' f't -mi:. 28. Plaintilf ho l:, anci t ln•reforo aver:;, that Defendant Carman was known to Defendant, D&A, Inc., its servants managers, officers and employees a:: t person who drank alcoholic beverages to excess and would become argumentive, unruly, combative and violent at Rafferty's and at other licensed establishments when drinking. 29. Plaintiff believes, and therefore avers, that on occasions prior to the events of December 8, 1996, Defendant Carman's conduct while drinking alcoholic beverages on the Premises caused him to be refused further service of alcoholic beverages and to be barred from patronizing the establishment. 30. Plaintiff believes, and therefore avers, that agents, representatives, employees, managers and/or servants of Defendant D&A, Inc. advised Defendant Dinello of irregularities in the operation of the bar in=luding the continued serving of alcoholic beverages to visibly intoxicated persons. 31. Plaintiff believes, and therefore avers, that agents, representatives, employees, managers, and/or servants of Defendant D&A, Inc. informed Defendant Dinello of the behavior of Defendant Carman while he was patronizing Rafferty's prior to the incident giving rise to this claim. 32. Plaintiff believes, and therefore avers, that Defendant Dinello took no action to bar Defendant Carman from patronizing the establishment. 7 ?. I'l.AiIII :tf b,.li,.;.,;:, .,u?i tll?.l„(,?I, .,vl„ !;1?1 I,.•{„u,lrrnt. ...:.:L '''1"t 1 }p. .nf lit , 7?'U C?': P_'lll .I! 1'I^ , Ub 11l ??{?'I nr D lllrilii t I i I, 'd uCl:vallt 73 alld /OS" ?'I?p i.0y"e2; !!1 I>?•. ?'ildanL Df.A, Ill('., ! ?? ! •I lb' Al'L 1011 CO bar Defendant C'arl?an trom pa tlolIizing Ratferty'ti OI to cease serving him alcoholic bev"rage_s. 34. Plaintitf believes, and therefore avers, that. a?rvants, representatives, agents and/or employees of Defendant Df.A, Inc. met with Defendant Carman prior to December 8, 1996 and informed him that they considered him a "troublemaker" and that he would be "flagged permanently the next time lie caused trouble in Rafferty's". 35. After committing the acts averred in Paragraphs 13 through 34 hereof, Defendant Carman, without any provocation or cause, confronted Plaintiff and, without warning to Plaintiff, violently and brutally assaulted and battered the Plaintiff with great force, striking him with a severe blow to the left side of his face, knocking him off his seat and causing him to strike the bar and floor. 36. As a result of being struck by Defendant Carman, Plaintiff suffered severe disfiguring and disabling personal injuries as hereinafter set forth at length. COUNT I HEINLY V. CARMAN 37. Plaintiff incorporates the averments of Paragraphs 1 through 36 of his Complaint by reference the-reto as though same 8 were fully seL forth. 3P. Defendant Cru m,ur a(-'t ..d in a rn?ll i'p•n:, ?•u ?•I?•: ,:: .u n! indifferent manner to tIto rights of Plaintiff in rlr,lt: a) He drank alcoholic beverages to I d??gr(?e that it R rendered him intoxicated and incapable of. controlling his behavior; r, b) He drank alcoholic beverages to Lhe degree that he t, r was rendered unable to refrain from unjustifiably and without cause striking Plaintiff; n c) He failed to warn Plaintiff of his intemperate habits and his violent and unruly propensities resulting from his imbibing alcoholic beverages to a degree that it rendered him intoxicated; and d) Failing to refrain from striking Plaintiff. o 39. As a direct and proximate cause of the Defendant Carman's carelessness and negligence, Plaintiff suffered injuries as follows: a) Blowout fracture of the floor of the left orbit; b) Fracture of the left nasal bone; c) Herniation of a large bone fragment into the left maxillary antrum; d) Extensive soft tissue density into the left maxillary antrum; e) Breaking and fracturing of four (4) teeth; f) Extensive swelling and bruising in and around the left orbit, eye and upper and lower lip; and g) Pain, suffering, embarrassment and humiliation and loss of life's pleasures and enjoyment. 40. As a result of the injuries suffered by reason of Defendant Carman's negligent, careless and wantonly reckless 9 '(A V .i:;'±,.rrriL.,,l .,h' :' •', {' I Tint i f 1 In.•alr.`d IT1.•dir',II „xp(IIIt :.uI(I billu n 1;un?.un? +: ,: 'I'hu::,?n?i Niuty l'wn and /100 Plaintiff f l::r, :nif L r%d lu:;:; of +rninc{n, and may continue. to suffct 1":!I; c,i ,irniugs, in th,? amount of Five Thousand Six }iundied Eighty lS5,re0.g0) [>ollars. 42. Plaintiff believes that some or all of his injuries were permanent and will cau,e him future pain and suffering and disability. 43. Plaintiff believes, and therefore avers, that he may incur future expenses for medical procedures and treatment. 44. Plaintiff believes, and therefore avers, that he may suffer additional loss of earnings and earnings capacity. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in his favor and against Defendant, Richard Carman, jointly and severally with Defendants Donald Dinello and D&A, Inc., in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars and sufficient to reasonably compensate him for his injuries which amount exceeds the amount requiring submission to compulsory arbitration in this jurisdiction. COUNT II HEINLY v. CARMAN 45. Plaintiff incorporates the averments of Paragraphs 1 through 44 herein by reference thereto. 10 46. I'l,lint iI I I,, l11 uul then-l1,1- avr'I: , t 11 It in the dlttll'llat.lv,', D'.1•'IP1.ult. (',It IlL Illy wit.h tho Illt.'lit: c, harm anC1 injury, intentionally e;truck Plaintiff a!; e;et. forth herein ccul;ing the injuries and los;se:; to Plaintiff as alleged in Paragraphs 39 through 44, inclu! vo, and incorporated herein by reference. 47. Plaintiff balicvrzs, and therefore avers, that the blow struck by Defendant Carman was willful, deliberate, salacious and exhibited such hardness; of heart and disregard for the rights of others so as to warrant an award of punitive damages. WHEREFORE, Plaintiff prays Your Honorable Court enter judgment in his favor and against: Defendant Richard Carman, jointly and severally with Defendants Donald Dinello and D&A, Inc., in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars, and in such sum sufficient to adequately compensate him for his injuries and losses, plus costs of suit, interest and punitive damages, which amount exceeds the amount requiring submission to compulsory arbitration in this jurisdiction. COUNT III HEINLY v. D&A. INC. AND DONALD DINELLO NEGLIGENCE 48. The averments of Paragraphs 1 through 47 of Plaintiff's Complaint are incorporated herein by reference thereto. 49. Upon information and belief and at all times relevant and material hereto, the negligent, careless, willful, wanton and reckless actions, inactions and disregard by the said Defendant, Donald Dinello as president and/or chief executive officer of D&A, 11 Inc., ;,idirni ,:: uu1/(,r ding busing::;:: i:: R,.?t!•:ty'n, .;nd Dvf n:1ln? 1)F,A, 1lo tr.-idi::q in, duiug hur:ill-: : -u: H,i11, 11 , their aq,tnt:;, r:erv,u:t:;, representatives and/or ,!mpluy,•?::, were the sole and proximate cause of the incident described above or w,:!re a substantial contributing E lctOr e.o t: he. happening <,I th,_ said incident hereinabove described, in the following respects: a) Negligently and carelessly serving intoxicating beverages in such types, amounts, quantities and frequencies to Defendant Carman as to cause him to become intoxicated; b) Negligently and carelessly continuing to serve intoxicating beverages to Defendant Carman at a time when the agents, servants, representatives and/or employees of the said Defendants knew or reasonably should have known Defendant Carman was intoxicated; c) Negligently and carelessly serving intoxicating beverages in such quantities at a single time so as to render the agents, servants, representatives and/or employees of said Defendants incapable of properly monitoring and controlling the intake of alcoholic beverages by Defendant Carman; d) Negligently and carelessly serving intoxicating beverages to Defendant Carman in such quantities, types and amounts and at such times as to render the agents, servants, representatives and/or employees incapable of properly monitoring Defendant Carman's condition so as to cease serving him alcoholic beverages when he became visibly intoxicated; e) Negligently and carelessly continuing to serve intoxicating beverages to Defendant Carman when he was visibly intoxicated, or when Defendants' agents, 12 ... •1 VAW I "I'l •tlt ,1 :. .tnIl/1r)c. r..?)hl U?,',y7S kn,•w or cuuuwl?ly iai,)wti I) t?ndnnt c'.uman was intuxit•, rt ?•d; t) N-Iliq-11t.1y Md ?'ar?:?lrrsaly continuing to serve intoxicat-.iug Yr vin nyes to Defendant when he was visibly intoxicate(i, (,r when Defendants' agents, servants, repr scnt:aeive;; and/t)r ,employees knew or reasonably should have known that Plaintiff was intoxicated and would be unable to protect himself; Y) Employing incompetently trained bartenders, waiters and/or waitresses and/or other employees, agents, representatives and/or servants; h) Negligently acid carelessly failing to instruct or adequately instruct and/or train their agents, servants, representatives and/or employees regarding the amounts of intoxicating beverages to be served to customers, patrons and/or business invitees of Defendants; i) Negligently and carelessly failing to instruct or train and/or inadequately training and instructing their agents, servants, representatives and/or employees to recognize the signs of visible intoxication; j) Failing to provide adequate security to protect the patrons, such as Plaintiff, from the assaults, batteries and criminal acts of third parties while on the Defendants' premises; k) Failing to have a program instituted and operating which would prevent persons or patrons on the premises and/or intoxicated persons or patrons from attacking, assaulting and/or battering other patrons, such as those in the position of Plaintiff, while patronizing Defendants' establishment; 1) Serving intoxicating beverages to customers, patrons and/or business invitees who are visibly intoxicated 13 alld /i,r havi11O III )u'l l?'1?':1 W)I1?')1 )irOfilOtr• OY 11 COU rage. dIill k 3II(I t!.? 'X. "'!;;:; In) Failing tic) warn l"?'rsonl; slIC,, as F'l, intift of the lack of adequate security and/or appropriate policies regarding the excessive drinking of alcoholic beverages by the patrons on and about: the Defendants' premises, and the risk of harm from the unruly, violent and assaultive behavior of patrons who have consumed excessive alcoholic beverages; n) Failing to timely summon law enforcement officers to prevent or restrain Defendant Carman from attacking, assaulting and/or battering other patrons and/or business invitees when Defendants' agents, servants, representative and/or employees knew or reasonably should have known that Defendant Carman constituted an unreasonable and outrageous risk of harm to other persons when he drank alcoholic beverages; o) Failing to timely summon law enforcement officers to prevent or restrain Defendant Carman from attacking, assaulting and/or battering other patrons and/or business invitees when Defendants' agents, servants, representatives and/or employees observed or should have observed that Defendant Carman was obviously in a visibly intoxicated condition constituting and unreasonable risk of harm to other persons; p) Serving liquor, malt or brewed beverages and permitting liquor, beer, malt or brewed beverages to be served, furnished or given to persons who are visibly intoxicated and/or persons of known intemperate habits all in violation of the laws of the Commonwealth of Pennsylvania and in particular the Pennsylvania Liquor Code, 47 Pa.C.S.A. §4-493, et seq.; q) Failing to have sufficient staff, agents, servants, 14 (*uritY and/or ?•mployE??s on m,,nni"r:" t,},c-,:,.ttrrrt- iv,•:;, lr },r •mi::c:; umbu ch l,;irC icitlcu' rcum:;t.,ntcc:: at the t=ime in question to ,id,.rqunt: ly monitor th,, size and activitiet, of. all the patrons present; the distribution, serving and/or consumption of alcoholic beverages by the persons and parrons present on the premises at the time and protect the patrons and business invitees such as Plaintiff from the known harms and risks of failing to control the drinking and actions of patrons such as Defendant Carman; r) Failing to bar Defendant Carman from the premises upon the Defendants' agents, servants, representatives and/or employees learning of Defendant Carman's propensity to drink to excess and engage in loud, boisterous and violent contumacious behavior when drinking alcoholic beverages; S) Failing to instruct their agents, servants, representatives and/or employees to bar Defendant Carman from the premises upon being informed that he often drank alcoholic beverages to excess, to a point where he became visibly intoxicated and engaged in loud, boisterous and violent contumacious behavior when lie imbibed alcoholic beverages while on the premises and at other establishments in the area; t) Failing to bar Defendant Carman from the premises when the Defendants' agents, servants, representatives and/or employees informed them of sufficient facts and information establishing that Defendant Carman was a person of known intemperate habits and who frequently caused trouble while on the premises and in other area establishments; and u) Violating the terms and conditions of the liquor license issued to Defendants and/or responsibility for 15 J({?'(1L a, Ii 1, Illy ({?t'::, .."17:1111.:. 111(??'?1 'illl?)C,yr•.,, who vl(+latu 50. As a diir(act and proximate r??vult of the neglig,?nce, cureles::nes:? and recklessne:;s al Defendants Dinello and D&A, Inc., Plaintiff suffered the injuries set forth in Paragraph 39 and losses as averred in Paragraphs 40 through 44, inclusive, which paragraphs are incorporated herein by reference thereto. WHEREFORE, Plaintiff requests judgment against Defendants Donald Dinello and D&A, Inc., jointly and severally with Defendant Carman, in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars and sufficient to reasonably and adequately compensate Plaintiff for his injuries and losses, plus interest and costs of suit, which amount exceeds the amount requiring submission to compulsory arbitration in this jurisdiction. COUNT IV HEINLY v. D&A. INC. AND DONALD DINELLO DRAM SHOP LIABILITY 51. Plaintiff incorporates the averments of Paragraphs 1 through 50 herein by reference thereto. 52. Defendants, by and through their agents, managers, bartenders, waiters, waitresses servants, representatives and/or employees, served alcoholic beverages to a patron, Defendant Carman, after he became loud, boisterous and argumentative. 53. Defendants, by and through their agents, managers, bartenders, waiters, waitresses servants, representatives and/or employees, continued to serve and/or permit Defendant Carman to be 16 served (q drink alr„huli' },'v• I,ly,•:; F1ft-1 ir' '•',;ltitln•'i hi:; loud, bOlut E'1 OUs 111'1 , 1 r'' I l II1P'ilt • l' Iv„ I'"ILiv l?,I 'I"1; t'iI.. h,•1 n,i w.ll nerd and requested to stop. 54. Defendants, by and through their tlgernt.e:, managers, bartenders, waiters, waitresses; servants, representatives and/or employees, sold, furnished and/or gave or permitted to sale, furnishing or giving of alcoholic beverages, liquor, malt or brewed beverages to Defendant Carman when he was visibly intoxicated in that he had imbibed three (3) beers in a short period of time while on the premises, he became loud, boisterous and argumentative and continued same after being warned asked to stop by Defendants' personnel. 55. Defendants, their agents, managers, bartenders, waiters, waitresses servants, representatives and/or employees served Defendant Carman alcoholic beverages, liquor, malt and/or brewed beverages and/or permitted such persons or any other persons to serve Defendant Carman alcoholic beverages, while knowing him to be a habitual drunkard or a person of known intemperate habits. 56. As a direct and proximate result of the actions and inactions of Defendants Dinello and D&A, Inc., either directly or indirectly, or by and through their agents, servants, representatives and/ore employees, the Plaintiff suffered the physical, emotional, psychological and financial injuries in Paragraphs 1 through 55 hereof. 17 Y/. Purr:u,utt t n t h.. 11-nn:;ylvrini,i 1,ii1w,i i. 41 I1,t.C.S. !;4 493(i) .uld !;•;-4?r1, th.. i:••[•t,d.,ut:? al- 1i d);•, tlr- Plaintiff. for the injuries and caused by Defendant Carman. 58. As +a direct-, and proximate result of th,! negligence, carelessness and recklessness of Defendants Dinello and D&A, Inc., Plaintiff suffered the injuries set forth in Paragraph 39 and losses as averred in Paragraphs 40 through 44, inclusive, which paragraphs are incorporated herein by reference thereto. WHEREFORE, Plaintiff requests judgment against Defendants D&A, Inc. and Donald Dinello, jointly and severally with Defendant Carman, in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars, and in a sufficient amount to reasonably and adequately compensate Plaintiff for his injuries and losses, plus interest thereon and costs of suit, which amount exceeds the amount requiring compulsory submission to arbitration in this jurisdiction. COUNT V HEINLY v. DINELLO 59. Plaintiff incorporates by reference the averments of Paragraphs 1 through 58 of his Complaint herein by reference thereto. 60. The Defendant, Dinello, operated and owned the bar/restaurant in that he was the sole shareholder and the sole corporate officer, de facto if not de jure, of the corporate entity D&A, Inc.. 18 6 1 . 'I'I1 1),!f,•u,1,11 n ;i ,,t. all 1 1 vane t imer:; hereto was t.h,• toul'! uwrn•r u! th,• i;ui 1-ilrni -url l.uui by t h- Dofendattt, D&A, Inc.. 62. Documents !.iL•ci with t:he Pennsylvania Liquor Control Board listed Patricia Bennett as President and William Sill as a corporate officer when, in fact, Defendant Dinr_llo was actually the sole shareholder and corporate officer. 63. Plaintiff believe;, and therefore avers, that at times relevant hereto, the Defendant D&A, Inc. had no paid in capital. 64. Plaintiff believes, and therefore avers, that except for the initial minutes in the corporate book, there are no minutes of any meeting of shareholders or Board of Directors for the Defendant D&A, Inc.. 65. Plaintiff believes, and therefore avers, that the Defendant D&A, Inc. has no dram shop liability insurance. 66. Plaintiff believes, and therefore avers, that Defendant, D&A, Inc., paid no dividends to its shareholders during any of the years that Defendant Dinello was the sole shareholder. 67. Pursuant to the Pennsylvania Liquor Code, 47 Pa.C.S. §493(i), the Defendant, Donald Dinello, is "any other person" and therefore is liable pursuant to 47 Pa.C.S. §4-497 for damages to Plaintiff as any other person who permitted the selling, furnishing or giving of liquor or malted or brewed beverages to Defendant Carman when he was visibly intoxicated and who was known to be a habitual drunkard and a person of known intemperate habits. 19 WHEREFORE, Plaintiff reque:;t:; judcIm,rnr ??inwt D.,londant Donald Dinello individually, and jointly and severally with Defendants Carman and D&A, Inc., in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars, and in a sufficient amount to reasonably and adequately compensate Plaintiff for his injuries and losses, plus interest thereon and costs of suit, which amount exceeds the amount requiring compulsory submission to arbitration in this jurisdiction. ubmitted, Date: ,/2'?J OD By: Eo F. Ly ons Esqu re rney for Plain iff Walnut S Harrisburg PA 17101 (717) 238-4777 (717) 238-4793 - Telecopier Pa. I.D. No. 23859 20 VERIFICATION I, Clarence H. Heinly, III, verify that the statements made in this Complaint- ar,a true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: 2 '• 13y: a/G -' CLARENCE H. HEINLY, III CERTIFICATE OF SERVICE 1, ,i(,hn F. Lyons, laquirc-, ,rtt(?un•y for 1'1,tiIt iLf, hereby certify that 1 have on t h- date- :shown k),rlow served a copy of the foregoing Complaint upon the f.oll owiny and in the mann er indicated below: CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID Richard Carman 41'7 Ricky Road Mechanicsburg, PA 1.7055 Richard Carman 164 Logan Road Apt. 2A Dillsburg, PA 17019 D&A, Inc. c/o Scotties Beef and Reef Lounge 710 West Main Street Mechanicsburg, PA 17055 Donald Dinello 2405 Linglestown Road Harrisburg, PA 17110 Ily Submitted, Date: / Z - C - oo Joh L ons, Esquire Att rn for Plaintiff 112 alnut Street Harrisburg PA 17101 (717) 238-4777 (717) 238-4793 - Telecopier Pa. I.D. No. 23859 O. t ti v (?? !" °: . ? I ? "? ? .. ? ::) ? .? 1. L` ?V y L. _ V ?) ? [ a Q _l • l // t 4 Aa. r N .?.R i /W C .., J[ •a. I l ?+ C Y .1 ''. `' J ...._.. ??I,.rl.?F (S IL...7/?- j :.i t ("/. t+ar +'E'1 ?' a Q hr-++1,T?( ?? ? ?i.f•?? We e s ,... ?" (/r'r/?os D?.v 1[/i.?Q t?,. oNC-..J S -F...[ ?f „??el`.,...f:9. ?•?} Sa.VC ¢.l o.` • Homemade Crabcakes • Fresk Gut Steaks • BBQ Ribs • Seafood Specials • Cocktail Lounge • Open 6 Days a week at 11 am 710 W, Main Street Meckanicsburg, PA 717-697-5024 i Ar. r: r:EMkHT voR_,_Pngcunats of :7TQgg r(,:• ,c il•b.l'. h:I'.:::' mu1.• t..::; 7 ?.L,% U! ,(A.. LC 1997, by MICI beCweou PJ:Ud.u ;5. I: ;;; 1;I,LO ,,: :)"ph:n C-MtY, Pennsylvania (hereinafter referred to a:, SCl l..u , , .;COT': .7. Sb( r and MZC(iliLLE L. r :L'Ci!B;uJE SPRUCEBANK, his wife, of Cumi"orlan.1 R;ur.ty, i'.:nucyl-„tn i., (heruinntter reterred to an "Buyer") and D 6 A, I"C., It P•:nuuyl:a::ia c•Orpurdtion with ottices in Cumberland County, Pennsylvania (hereinafter :.Ierred to as "Corporation,-). W I T H Ii S S L•' T H: WHEREAS, Seller is the oanter of 10,000 shares of common stock of Corporation, representing 100% of the issued and outstanding shares of common stock of the Corporation; and WHEREAS, Seller desires to sell said 10,000 shares of common stock of the Corporation to Buyer, and Buyer desires to purchase the same. NOW THEREFORE, it is agreed as follows; 1. sale and Purchase of Shares. Buyer hereby purchases from the Seller and the Seller hereby sells to the Buyer 10,000 shares of common stock of the Corporation, representing 100: of the issued and outstanding stock of the Corporation. 2. Purchase Price. The consideration for the purchase of said 10,000 shares of common stock of the Corporation shall be One Hundred Sixty Thousand ($160,000.00) Dollars, which shall be payable, together with interest at the rate of ten (10;) percent per annum on the unpaid balance, in equal monthly installments of one Thousand Three Hundred Thirty-Three and 34/100 Apruumnnt, wh.-th:.t : n •-t .. ; t h"l. ?::rrene. on its other obligationo uudee till:: h.u ....;..••ut . 6. Re u-euent'ttiopn filar r•urt:icn and Aureements of Seller. (a) ::e11er reprement:; and warrants that lie is the owner of the lo,ooo slmreu of common stcc:k of f::e corporation referred to in this Agreement, dnd 2, repr,.cc::ta a:::: w-marts that these shares are fre6 and clear of all liens and encumbrancou of any kind. (b) A lawsuit was filed against Corporation by Michelle Failor? to No. 96-196 Civil Term, Cur:berldrd County Court of Common Pleas. A claim has also been asserted against the Corporation by Clarence Heinly. Seller agrees to assume full responsibility for said lawsuit and claim. Seller also agrees to assume full responsibility for all other liabilities and obligations of Corporation incurred prior to settlement, excluding only current actual and accrued operating payables. Seller agrees to indemnify, defend and save harmless Corporation and Buyer from any liability in connection with said lawsuit, claim, liabilities and obligations. This paragraph shall survive settlement and shall not be subject to the doctrine of merger. 7. Corporate Matters. At settlement Seller will deliver to Buyer the signed resignation of Patricia Bennett as Director, President and Treasurer of the Corporation and the signed resignation of William D. Sill as Director and Secretary of the Corporation. , -5- John P. L%um r\ui?rnrc :u Laic His 112 11;ilnw tih?cr Ilarri0hurp, I,,\ 17101 CLARENCE hI. HEINLY, III Plaintiff V. RICHARD J. CARMAN, Individually, D&A, INC., t/a RAFFERTY'S CORPORATION, DONALD E. DINELLO, Individually and as Corporate Officer for D&A, Inc., Defendants IN Tfif: COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 98.6839 CIVIL TERM o: CIVIL ACTT N - LAW JURY TRI L DEMANDED 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 papers, 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. Court Administrator, Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 TRUE COPY FROAR.REOORO rn Testimony whereof, I here unto set my hang and the seal of said Court at.Camsle: Pa this e °- Omhortofa'ry CER'TIFICA'TE OF SERVICE ce.r,`y fulr•t?ii,i •,t ....., h ., ?;:i ,.. !i: :,_c... rr .,r3.r.,t,.:3 be 1 r) w: CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID N.nnti r ,.. :.,a i:<rifl iLU .. ...r.: -:.f, PA 17110 Respectfully Submitted, Date: / - oo thy: Joh F. L ons, Esquire Att me for Plaintiff 112 alnut Street Harrisburg PA 17101 (717) 238-4777 (717) 238-4793 - Telecopier Pa. I.D. No. 23859 -, ;.. -; _ _; CLARENCF FI. I-IEINLY, III, Plaintiff, VS. RICHARD J. CARMAN, Individually, D&A, INC. Va RAFFERIY'S CORPORATION, DONALD E. DINELLO, Individually and as corporate officer for D&A, Inc., Defendants. IN I III ('OUR I OI ('WAX1( )N I'll IAS CI ,MBI RI AND ('01, IN I Y, I'I NN,1. NO. 08.6839 CIVII II. RM CIVII ACTION - IAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendants D & A, INC., t/a RAFFERTY'S CORPORATION and DONALD E. DINELLO in the above-captioned matter. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: January 19, 2001 -?' Francis E. Marshall, Jr., Esquire jib. #27594 Thomas M. Chairs, Esquire I.D. 78565 20 South 36"' Street Camp Hill, PA 17011 (717) 731-4800 CERTIFICATE OF SERVICE AND NOW, Ihis II" day of January, , 2000, I, 1 rands 1. MoWmll, Jr., I squire, hereby certify that I did serve a low and correct coley of the foregoing Entry of ApIwarance upon all counsel of record by depositing, or causing to be deposited, sanuV in the 1;-S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: John F. Lyons, Esquire 108-112 Walnut Street Harrisburg, PA 17101 Attorney for Plaintiffs Richard Carman 417 Ricky Road Mechanicsburg, PA 17055 -or- 164 Logan Road, Apt. 2A Dillsburg, PA 17019 141 Fra; cis E. Marshall, Jr., Esquire ` . N ?? ^.^3 k P?h q,FF} yy yi 1 A? C 1 2 ? Vl Y V? 9 t{ V } Y r A l { CLARENCE If. IIHNLY. III. Plaintiff. P5. RICIIARD J. CARMAN, Individually, D&A, INC. I/a RAFFERTY'S CORPORA'T'ION, DONALD E. DINEL.LO, Individually and as corporate officer for D&A. Inc.. Defendants. IN '1'111; COI IRT Oh COMMON PLEAS CUMBERLAND COUNTY. PENNA. NO. 98-6839 CIVIL TERM CIVII. AC'T'ION - LAW JURY TRIAL DEMANDFI) NOTICE TO PLEAD TO: Clarence H. Heinle. 111 c/o John F. Lyons. Esquire 108-112 Walnut Street Harrisburg, PA 17101 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN ANSWER WITH NEW MATTER OF DEFENDANTS, D&A. INC., t/a RAFFIRTY'S CORPORATION and DONALD D. DINELLO TO PLAINTIFFS' COMPLAINT WITHIN TIVENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, p Date: Mav 2. 2001 Franeis E arshall. Jr., Esquire / Attorney D.,,No:27594 Thomas Chairs, Esquire Attorney I.D. No: 78565 20 South 36th Street Camp Hill. PA 17011 (717)731-4800 Attorney f'or Defendant D&A, Inc. Na Rafferty's and Donald D. Dlnello CLARENCE 11, IIHNI.Y. III. Plaintill'. Ys. RICIIARD J. CARMAN, Individually. D&A, INC. Va RAITERTY'S CORPORATION, DONALD 1). DINEI.I.O, Individually and as corporate officer for D&A, Inc., Defendants. IN TIII? COURT Oh COMMON PI.I.AS CI IMHERLAND ('011NTY. PIiNNA. NO. ')X 0839 CIVIL I IiRM CIVIL ACTION LAW JURY TRIAL DEMANDED ANSWER AND NF %%' MArITR OF DEFENDANTS. D&A, ENC., 1/a RAFFERT'Y'S CORPORATION and DONALD D. DINELLO TO'1'IIF PLAINTIFFS' COMPLAINT AND NOW, conic Defendants, D&A, Inc., t/a Rafferty's Corporation and Donald D. Dinello, by and through their attorneys. Marshall & I laddick. Y.C.. and answer to the allegation set forth in the Plaintiffs' Complaint, as follows: Denied. After reasonable investigation Answering Defendant is without knowledge or information to sufficient to forma belief as to the truth or falsity of the averments set forth in Paragraph I of the Plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at the time of trial. 2. Denied. Paragraph 2 of the Plaintiffs' Complaint refers to a party other than the Answering Defendant, consequently, no response is required. In the alternative, to the extent that Paragraph 2 of the Plaintiffs' Complaint is deemed to contain facts that pertain to the Answering Defendant those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted, 7. Admitted. 8. Denied. Paragraph 8 of the Plaintiffs' Complaint sets forth a conclusion of law as opposed to statements of fact, consequently, no response is required. In the alternative. to the extent that Paragraph 8 of the Plaintif7s' Complaint is deemed to contain facts to which it responsive pleading is deemed required, those allegations of tact are denied generally in accord with Pennsylvania Rules of Civil procedure 1029. 9. Admitted in part, denied in part. It is admitted that on December 8, 1996, Defendant. Dinello, was the sole shareholder of D&A. Inc., trading and/or doing business as Rafferty's at 710 West Main Street, Mechanicsburg, Cumberland County. Pennsylvania. The remaining allegations set forth in Paragraph 9 in Plaintiffs' Complaint set forth conclusions of law as opposed to statements of fact, consequently, no response is required. In the alternative, to the extent the remainder of the allegations set for in Paragraph 9 of the Plaintiffs' Complaint is deemed to contain facts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 10. Denied. Paragraph 10 of the Plaintiff's' Complaint sets forth conclusions of law as opposed to statements of fact, consequently, no response is required. In the alternative, to the extent that Paragraph 8 of the Plaintiffs' Complaint is deemed to contain facts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029(e). 2 11. Admitted in part, denied in part. It is admitted than Defendant. DKA. Inc.. employed bartenders, waiters, waitresses and/or bar managers in December of 1996. It is specifically and unequivocally denied that Dinello employed any bartenders, waiters, waitresses and/or bar mangers in December of 1996. 12. Denied. After reasonable investigation Answering Defendant is without knowledge or information to sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 12 of the Plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at the time of trial. 13. Denied. After reasonable investigation Answering Defendant is without knowledge or information to sufficient to form a belief as to the truth or falsity of the averments set forth in Paragraph 13 of the Plaintiffs' Complaint, and therefore, denies same and demands strict proof thereof at the time of trial. 14. Denied. Paragraph 14 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 15. Denied. Paragraph 15 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 16. Denied. Paragraph 16 ol'the Plaintiff:s' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 3 17. Denied. Paragraph 17 of the Plaintilt's' Complaint sets forth conclusions of law as opposed to statements III' fact, consequently, no response is required. In the alternative, to the extent that Paragraph 17 of the Plaintiffs' Complaint is deemed to contain facts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 18. Denied. Paragraph 18 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 19. Denied. Paragraph 19 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 20. Denied. Paragraph 20 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 21. Denied. Paragraph 21 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 22. Denied. Paragraph 22 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 23. Denied. Paragraph 23 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 24. Denied. Paragraph 24 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 25. Denied. Paragraph 25 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 4 26. Denied. Paragraph 26 of the Plaintill's' C'ontplaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 27. Denied. Paragraph 27 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 28. Denied. Paragraph 28 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil procedure 1029. 29. Denied. Paragraph 29 or the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 30. Denied. Paragraph 30 of the Plaintiff;' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 31. Denied. Paragraph 31 or the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 32. Denied. Paragraph 32 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 33. Denied. Paragraph 33 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 34. Denied. Paragraph 34 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 35. Denied. Paragraph 35 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules or Civil Procedure 1029. 36. Denied. Paragraph 36 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 5 COU\ I I III'.ININ v. CARMAN 37-44. Paragraphs 37 through 44 refer to it party other than the Answering Defendant, consequently, no response is required. In the alternative, to the extent that Paragraphs 37 through 44 are deemed to contain facts that pertain to the Answering Defendant, those allegations of fact are denied generally as after reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth therein. COUN•r 11 HEINLY v. CARMAN 45-47. Paragraphs 45 through 47 refer to it party other than the Answering Defendant, consequently, no response is required. In the alternative, to the extent that Paragraphs 45 through 47 are deemed to contain facts that pertain to the Answering Defendant, those allegations of fact are denied generally as after reasonable investigation Answering Defendant is without knowledge or information sufficient to form it belief as to the truth or falsity of the averments set forth therein. COUNT III HEINLY v. D&A INC. and DONALD DINELLO NEGLIGENCE 48. The above-stated responses to Paragraphs I through 47 of the Plaintiffs' Complaint are incorporated herein as if fully set forth. 6 49.511. Denied. Par l;riph 49 and 50 of the Plaintiffs' Complaint set% limb conclusions of law as opposed Io statements of fact, consequently. no response is required. In the alternative, u, the extent that Paragraphs 49 and 50 of tite Plaintilis' C'onlplaint is deemed to contain facts to which a responsive pleading is deemed required. those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. COUNT IV HEINLY v. D&A. INC.. AND DONALD DINELLO DRAM SHOP LIABILITY 51. The above-stated responses to Paragraphs 1 through 50 are incorporated herein as if fully set forth. 52. Denied. Paragraph 52 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 53. Denied. Paragraph 53 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 54. Denied. Paragraph 54 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 55. Denied. Paragraph 55 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 56. Denied. Paragraph 56 of the Plaintiffs' Complaint sets forth conclusions of law as opposed to statements of fact, consequently, no response is required. In the alternative, to the extent that Paragraph 56 of the Plaintiffs' Complaint is deemed to contain facts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 7 57, Denied. Paragraph 57 01' the Plaintiffs' Complaint sets forth conclusions of law as opposed to statements of fact. consequently, no response is required. In the alternative, to the extent that Paragraph 57 of the Plaintiffs' Complaint is deemed to contain facts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 58. Denied. Paragraph 58 of the Plaintiffs' Complaint sets forth conclusions of law as opposed to statements of fact, consequently, no response is required. In the alternative, to the extent that paragraph 58 of the Plaintiffs' Complaint is deemed to contain Batts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil procedure 1029. COUNT V HEINLY v. DINELLO 59. The above-stated responses to Paragraphs 1 through 58 are incorporated herein as if fully set forth. 60. Admitted in part, denied in part. It is admitted that the Defendant, Dinello, was the sole shareholder of the corporate entity D&A. Inc. The remainder of the allegations set forth Paragraph 60 of the Plaintiffs' Complaint are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 61. Admitted. 62. Admitted in part, denied in part. It is admitted that Defendant. Dinello, was the sole shareholder of D&A, Inc. It is denied that Defendant. Dinello. was the sole corporate officer. 8 63. Denied. Paragraph 63 of' file Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 64. Denied. Paragraph 64 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 65. Denied. Paragraph 65 of the Plaintiffs' Complaint is denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. 66. Denied. Paragraph 66 of the Plaintit'ts' Complaint is denied generally in accord with Pennsylvania Rules o1' Civil Procedure 1029. 67. Denied. Paragraph 67 of the Plaintiffs' Complaint sets forth conclusions of law as opposed to statements of fact, consequently, no response is required. In the alternative, to the extent that Paragraph 67 of the Plaintiffs' Complaint is deemed to contain facts to which a responsive pleading is deemed required, those allegations of fact are denied generally in accord with Pennsylvania Rules of Civil Procedure 1029. NEW MATTER 68. The Plaintiffs' fail to state a claim upon which relief may be granted. 69. The Plaintiffs' claims, if any, are barred by the applicable statue of limitations. 70. The Plaintiffs' claims are barred and/or limited by operation of the Doctrine the Election of Remedies. 71 The Plaintiffs' claims are barred and/or limited by operation of the Doctrine of Latches. 72. Answering Defendants raise the defense of release to Plaintiffs' claims. 73. The Plaintiffs' injuries, if any, are the result of his own negligence. 9 74, Any aherc:uion between the plaintill' and the Del'end:un. Richard J. Carman. which may have resulted in harm In the plaintiff is an independent superseding cause that relieves the Answering Defendants lions any and all liability lot. the Plaintiffs' Claims. 75. All waitresses and/or bartenders and/or staff members serving alcoholic beverages at any time relevant hereto at Defendant. D&A. Inc., t/a Rafferty's, were employees of D&A. Inc.. t/a Rafferty's, and any allegation of agency to the contrary set forth in the plaintifrs' Complaint is specifically denied. 76. At no time relevant hereto was Defendant. Richard J. Carman, visibly intoxicated. 77. At no time relevant hereto was Defendant, Richard J. Carman, a habitual drunkard. 78. At no time relevant hereto was Defendant, Richard J. Carman, it person of known intemperate habits. Respectfully submitted, MARSHALL & HADD/CK, P.C. Date: May 2, 2001 Francis E. rshall, Jr., Esquire I. D. #2759 Thomas M. Chairs, Esquire I.D. 78565 20 South 36ih Street Camp Hill, PA 17011 (717) 731-4800 Attorney for Defendant D&A, Inc. t/a Rafferty's and Donald D. Dinello 10 MAY-02-01 aoolu 11:43 }Ax rs?INE LO AND FAX ' HO, 7176572601 0no+ FM I782 Amer with Kc. Muter 1. Dotuldl Dinclio, hereby vetify that the avmuueuts sat forth m the Answer with New Matter are true and cormct to the best of my knowledge. Information and belief. I understand that false statements herein ate inade subject to the penalties of I8 Pa. C.S. §4904, relating to urtsworn falsification to authorities. CERTIFICATE OF Shat\ I( ?? AND NOW. Ibis day of A1ay. 2(K)I. 1, Francis F. Marshall, Jr., Fsquire. hereby Certify that I did serve it hue and corrccl COPY 01 the foregoing Answer with New `tauter upon all counsel ol'record by depositing, or causing to be deposited, same in the II.S. mail, poNage prepaid. at Harrisburg. Pennsylvania, addressed as follows: By First-Class Mail: John P. Lyons, Esquire 108-112 Walnut Street Ilarrishurg, PA 17101 Attorney Jor PlahuiJfc ;:- ? , ?- <; _: ? ,J Thhe 5?ourt of Com on Ple s I of Cumberland County, ?ennsy?vania File No. 1998.08839 HEINLY CLARENCE H III V8 CARMAN RICHARD A ET AL STATEMENT OF INTENTION TO PROCEED To the Court: Clarence II. Ileinly, III October 8, 2004 intends to proceed with the above captioned matter. JI Curtis R. Long Prothonotary Office of toe Protoonotarr Cumbertanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 9P - 4839 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square - Carlisle, Pennsylvania 17013 - (717) 240-6195 9 Fax (717) 240-6573