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HomeMy WebLinkAbout00-06436 , ----~ ERIKA M. BEARD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. . NO. : ;lOCO -(Pl/3G, f!. I vi / DUSAN BRATIC and KATHLEEN: BRATIC, CIVIL ACTION - LAW Defendants: NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 240-6200 SAIDIS, SHUFF & MAS LAND Dated: q':,40-0Q By. seph L. Hitc ingg.,. E Supreme Court I.D. #'~ 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff ire I -~ ,-" '<~--" " '>J ,.' '. -,~'" ,-'i-~;;.;.-~"',--~j",_ ~',-,.' ~'b'_'~'"" '",~,-j-"' :'< "'"~'i,,, ,;<..,"<' ',-; ~d ERIKA M. BEARD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. : r)O-t..<l3(. G;;J r~ DUSAN BRATIC and KATHLEEN: BRATIC, CIVIL ACTION - LAW Defendants: COMPLAINT AND NOW comes the Plaintiff, Erika M. Beard, by and through her attorneys, Saidis, Shuff, Flower & Lindsay, and avers in support of her Complaint against Defendant as follows: 1. Plaintiff, Erika M. Beard, is an adult individual residing at 14 Gobin Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendants, Dusan Bratic and Kathleen Bratic are adult married individuals residing at 1521 High Meadow Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. At all times material hereto, Defendants were the owners of property located at 853 North Hanover Street in the Borough of Carlisle, Pennsylvania. 4. At all times material hereto, Defendants were the owners of the sidewalk in front of the property located at 853 North Hanover Street in the Borough of Carlisle, Pennsylvania. 5. On October 27, 1999, Plaintiff was walking north on Hanover Street in the Borough of Carlisle on the sidewalk in front of the property at 853 North Hanover Street when she tripped over a 3 to 4 inch raised section of sidewalk and fell to the ground, landing on her left wrist. 6. Plaintiff suffered serious injuries in the fall, including a fractured left wrist, lacerations of the lower lip and right hand, bruises to both knees and a severe sprain of . the left ankle. 7. The injuries suffered by Plaintiff in the fall were a direct and proximate result of the negligence of Defendants in the following particulars: a) failing to repair or correct the defective sidewalk in front of their property; b) allowing a dangerous condition to exist on the sidewalk in an area known by them to be used heavily by the public; c) failing to repair, correct or replace the defective section of sidewalk after receiving notice from the Borough of Carlisle that the sidewalk needed to be replaced. 8. As a direct and proximate result of Plaintiff's injuries, she has in the past and will in the future be force 2 & ' '^ ,-~ '-0"; , '~' ~_ <__~ I~ "._ to incur medical procedures and medical expenses for treatment of said injuries. 9. As a direct and proximate result of her injuries, Plaintiff has suffered pain, inconvenience and the loss of life's pleasures, some or all of which may be permanent. WHEREFORE, Plaintiff, Erika M. Beard, demands judgment against the Defendants, Dusan Bratic and Kathleen Bratic in an amount in excess of $25,000.00. Respectfully submitted, SHUFF, FLOWER & LINDSAY Date "f-~O-DO , oseph L. Hitching5~ Esquire Attorney I.D. # 65551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff 3 ,.,"," ~."'-----""--" ,[" ~" ".'^ .,--, ~ i. , '. , I _';, '~1j VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. c.S. S 4904, relating to unsworn falsification to authorities. DATED: L.\- \0...- ~ ~~ ~'~!J.-()n~ Erika M. Beard I II -""" ,,~,.- "~~~."";",,,,,,~,~~ b' ~ill'll_lMiI-~ '~'M~" ~ = [u , '" ~~ ~ C5 0 ~ 'VJ <~ CY .--S:> ,,- -, . ..-.~ - -, >." :1 i I'! 1'1 I il II ,I II Ii "' ~ I, " i I 1 ,I I (J) 0 co l~ c: CJ $: f./') 1: -00:; ,M'l ...c: rnr71 ." -r.; ~:u ~ ~ YI -r-.' N ,....:. () (J);J::; <::1 ~',~~ -<...:::" '8 c ~ r:c; -v '< 0- ~o -~- ....."> :1:;: ~~20 -0 c/n Pc ~ ~ ~ --"of 'A ~ ,S)... .&:" -< ~,~,-' -', ~~ ---~ .. L..J - j 1IiliIlIIl.-~~~'~ SHERIFF'S RETURN - REGULAR ~ CASE NO: 2000-06436 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEARD ERIKA M VS BRATIC DUSAN ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRATIC DUSAN the DEFENDANT , at 0018:20 HOURS, on the 27th day of September, 2000 ~t 1521 HIGH MEADOW LANE MECHANICSBURG, PA 17055 by handing to KATHLEEN BRATIC (WIFE) ~ true and attested copy of COMPLAINT & NOTICE together with ~nd at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 8.68 .00 10.00 .00 36.68 So Answers: /~ ~ ~~~~~~ R. Thomas Kline 09/28/2000 SAIDIS, SHUFF & MASLAND Sworn and Subscribed to before By: ~~~/ A '47./ ~ <~ ~eput Sherif ] me this S~ day of (]J d;;.f. , ~ ,2 07riJ A . D . ~{l~~ Prothonotary . -~ ~~ - ~ ~ _ '0 , SHERIFF'S RETURN - REGULAR CASE NO: 2000-06436 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEARD ERIKA M VS BRATIC DUSAN ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRATIC KATHLEEN the DEFENDANT , at 0018:20 HOURS, on the 27th day of September, 2000 at 1521 HIGH MEADOW LANE MECHANICSBURG, PA 17055 by handing to KATHLEEN BRATIC a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: ~ rac:-.,,<:'f .;~~ R. Thomas Kline me this -.t)/S.. day of 09/28/2000 SAIDIS, SHUFF & MASLAND By: .$Pf. ~~:%IL7~ Sworn and Subscribed to before [)~ ;li/'M A.D. ~ tI. J'hdl<.. r<}"") Prothonotary , ,. _ O~ ,~. ~, ~ ,~ -.' ~ ~,"~'-' - ,-,^" .v "__~_ " ,,v I, "" , ," - Stephen E. GeduJdig, Esquire Attorney 1.0. No. 43530 Michele J. Thorp, Esquire Attorney 1.0. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Maii: seq@lthlaw.com Attorneys for Defendants: OUSAN BRATIC and KATHLEEN BRATIC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, Michele J. Thorp, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Defendants, Dusan Bratic and Kathleen Bratic in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiff's Complaint. Respectfully submitted, a TJJ tJO :11145 .1 THOMAS, THOMAS & HAFER, LLP By: ~ E~QUIRE Attorney I.D. No. 43530 MICHELE J. THORP, ESQUIRE Attorney I.D. No. 71117 Attorneys for Defendants, DUSAN BRATIC and KATHLEEN BRATIC I " h'" ~- '"' " '",'''~' -~,. - "', , -~ , ',"" _ ,; " "_",__,0_'-'--;'_,"- ,'~ .e_' , >' "i;"~ -; J"' CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~~D day of October, 2000, on all counsel of record as follows: Joseph L. Hitchings, Esquire SADIS, SHUFF & MASLAND 26 West High Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP y :111491.1 I, ~1iIl-'- ,",~~......'"'""''tl!I CJ,:: " - ~,~"'-'~~ ~" -~ - ,.,...;.~ ,.., .., ~, l~'" ~ ~, ~ , .~ -0 !Ti(" 2-;: ""-. ~, (/j , r=- ,.,:- ~": j :;~ c) S;; ~:" ... c::'~ C) r:'J .:...,-} "'--:;. ,--, ,,,_"J ':.n f'",,; " . _ __~~" ,,_ _<__~OrN ^~" ~'" ~. ,.., o,,;~, ... Michele J. Thorp, Esquire Attorney 1.0. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7153 E-Mail: mittmtthlaw.com Attorneys for Defendants DUSAN BRATIC and KATHLEEN BRATIC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants vs. CANCUN MEXICAN RESTAURANT,INC.: Additional Defendant .....c= .Je> I'-..,} A-:I::::;l:>. \\c>uf\L.~R:.~'I0ii ! TO THE PROTHONOTARY/CLERK OF SAID COURT: Please issue sununons in the above captioned matter. -t= --J=, '""' ~'+\=......,c:,<J~-\"e.I\~c:>.n-\ xx Writ ']f ~']HlIilUm; shall be issued and forwarded to Sheriff for service on the Additional Defendant at the following addresses: Cancun Mexican Restaurant, Inc. 953 N. Hanover Street Carlisle, PA 17013 Date: November 20, 2000 Michele 1. orp, Es . e THOMAS, THO S & HAFER LLP 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 237-7153 Supreme Court J.D. Number 71117 * * * * * * SUMMONS IN CIVIL ACTION TO: Cancun Mexican RestauranUnc" 953 N. Hanover Street. Carlisle. P A 17013. YOU ARE NOTIFIED THAT THE ABOVE-NAMED DEFENDANTS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: by '(I ,. .....;"'-.-.~"""'"ri ,~_ ~L-<< _~~_~,:"HL,>_~~~. R_m ,"'C_,"_!.plI~)1\l - - - ,- ii- tAl/;I~;".l:iti'ililIlid ~ Q ". -oeD n1f", I 2:;:J ~~~ ~~~ L '- j;~2 ~ 2:: =< -~ , -, ,"~ ,~ [, - M I:'") Ci? CJ ':"') i',<) c) ~'u i'.;l ("l) \._) __..1 ?~ -< @J '~ ~, ...... ~ Cumberland County, ss: The Commonwealth of Pennsylvania to CANCUN MEXICAN RESTAURANT, INC. (Name of AddiJtional Defendant) Yau are notified that DUSAN BRATIC AND KATHLEEN BRATIC (Name (~) of Deflltidant (0) has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date 11-20-00 Curtis R. Long lIroih<motary By{)ttnh-uL --I . (;U~Ml . f"& V Deputy (SEAL) CANCUN MEXICAN RESTAURANT, Inc. 953 N. Hanover Str~t Carlisl~, PA 17013 ,"""" " -'''''_~iiliIllIiiIlili~!i\;;\;iU!~~'IWiiJiif~L<'Ct~~'''' -~61"""';; "' -.... ~"" ~ ..... H -b1O::1W ~ E;. 0'" ~ 0 t<I ~ -..] . 0 PJ lJ] @ :u 0 1-''10lJ] 0 o~ '1W H -..]'1' ! ~Z ~ ifJ 0 -/-" ~ ....== i@ 0 * ",[!}B''1 rn . I g~ Fb1 ~ IJj ~ '" -..] W~~IT ~ ... I-' -..] ::r ;-< W I-' I <.Q '" ::> I '" I-' -..J... \0 I":I:j z~ ~~ ,H H -..] I-' "''1 ~ ~ 0 lJ]'1:j 0 ~ 11) w,," ::> 1-''1 ~ IT -..]en I-' ..... ~ ~ -..] en 00 13 IT I-' IT f2 w'1;.- ~ 0 '1. l:'!j.... ! OJ ~ 'p "'lZ 11)c. 11)c. ~a IT.. ; ct. g :;l ~> !!. - .~ ;.- i , 1Jj' ~z H ~ I - fi s 8 ir' E" t::J ~ :1.1 - _ ~ 00:-. :rr [ll -. fit':] t"],~l~~U:_l(1J,:;JJt:'Jl,"~,,,.,J,j,' , " ~,"< ",' . ~ " , --- , ~ " -J :.."....:.~-""""'-'!~ SHERIFF'S RETURN - REGULAR CASE NO: 2000-06436 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEARD ERIKA M VS BRATIC DUSAN ET AL RICHARD E. SMITH Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT TO JOIN ADDITIONAL D was served upon CANCUN MEXICAN RESTAURANT INC the ADD'L DEFENDANT, at 1226:00 HOURS, on the 27th day of November, 2000 at 953 N. HANOVER ST. CARLISLE, PA 17013 by handing to FRANCISCO SALAZAR, MANAGER AND ADULT IN CHARGE a true and attested copy of WRIT TO JOIN ADDITIONAL D together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.10 .00 10.00 .00 31.10 .r~~ R. Thomas Kline 11/28/2000 THOMAS THOMAS Sworn and Subscribed to before By: "7,' D ~ me this Cd. day of ~m~ c/Orl'U A.D. ~ --- Z'. O. Yu,~~,,, ~ othonotary r "' . ~"-,, > " " ",0", " ">> , ~ ~-- ;".- ~- ,""--.-" , ~ . , Michele J. Thorp, Esquire Attorney LD. No. 71117 THOMAS, THOMAS & IIAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7153 E-Mail: mjt@tthlaw.com Attorneys for Defendant DUSAN BRATIC and KATHLEEN BRATIC ERIKA M. BEARD, Plaintiff IN lHE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KAlHLEEN BRATIC, Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. Ifno objection is made, the subpoena will be served. THOMAS, THOMAS & HAFER LLP Date: January 16, 2001 By: I '"-,~ ,_" _n --'""'-, , , '_ -o~ - ~- - -,' .- .-oC."-_" ' ,-," , <, _ ""'~";" ;,0" i-I'" ~' '11; 'J Michele J. Thorp, Esquire Attorney I.D. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717)237-7153 E-Mail: mjt@rthlaw.com Attorneys for Defendant DUSAN BRATlC and KATHLEEN BRATlC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRA TIC, Defendants CERTIFICATE OF SERVICE AND NOW, this 16th day of January, 2001, I, BARBARA ONORATO, a paralegal in the law firm of Thomas, Thomas & Hafer LLP, hereby certifY that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Joseph L. Hitchings, Esquire 26 West High Street Carlisle,.PA 17013-3093 J / /I # 'luJuAA {~...~- Itarbara A. Onorato, Paralegal Date: January 16, 200 I ''-' ,- ,--' -"-' -. , i, ""I " .~.. , , COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ERlKA M. BEARD, Plaintiff v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Appalachian Orthopedic Center Ltd., One Dunwoody Drive. Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All medical records, reports, treatment notes, correspondence, etc. for any treatment rendered on behalf of Erika M. Beard, d/o/b: 9/1/30 SSN - 403-50-7872 at THOMAS, THOMAS & HAFER, LLP. 305 N. Front Street, POB 999. Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with il THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Michele Thoro. Esquire ADDRESS 305 N. Front Street. POB 999 Harrisbura. PA 17108 TELEPHONE (717) 237-7153 SUPREME COURT 10 No: 71117 ATIORNEY FOR: Defendant Prothonotary/Clerk, Civil Division Deputy DATE: Seal of the Court .. " '" ':"-"'-. .,-,. .I '- . , COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ERlKA M. BEARD, Plaintiff v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRA TIC and KATHLEEN BRATIC, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Carlisle Hospital (Name of Person or Entity) Within t\Nenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All medical records, reports, treatment notes. correspondence, etc. for any treatment rendered on behalf of Erika M. Beard, d/o/b: 9/1/30 SSN - 403-50-7872 at THOMAS, THOMAS & HAFER, llP, 305 N. Front Street, POB 999, Harrisburg. PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought If you fail to produce the documents or things required by this subpoena, within t\Nenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Michele Thorp Esauire ADDRESS 305 N. Front Street. POB 999 Harrisburg. PA 17108 TELEPHONE: (717) 237-7153 SUPREME COURT 10 No: 71117 ATTORNEY FOR: Defendant Prothonotary/Clerk, Civil Division Deputy DATE: Seal of the Court Michele J. Thorp, Esquire Attorney 1.0. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7153 E-Mail: mjt@tthlaw.com Attorneys for Defendant DUSAN BRATlC and KATHLEEN BRATlC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND .COUNTY, PENNSYLVANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants CERTIFICATE PREREQUISITE TO SER.VICE OF SUBPOENAS . DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendants certify that: (1) A notice of intent to serve the subpoenas 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) A copy of the notice of intent, including the proposed subpoenas, is attached to this certificate. (3) Joseph Hitchings, Attorney for Plaintiff, has waived the 20-day rule, and (4) The subpoenas which will be served are identical to the subpoenas which are attached to the Notice offutent to Serve the Subpoenas. TH Date: January 24, 2001 By: "n' '~"'-"_ .,,,,-=,, "'M_"'~__ _. "" ~" '-.! '--",',- ."'" ","_-I", ,-, ".~' Michele J. Thorp, Esquire Attorney LD. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717)237-7153 E~Mai1: mjt@tthlaw.com Attorneys for Defendant DUSAN BRATlC and KATHLEEN BRATlC ERIKA M. BEARD, Plaintiff IN lHE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KAlHLEEN BRATIC, Defendants CERTIFICATE OF SERVICE AND NOW, this 24th day of January, 2001, I, BARBARA ONORATO, a paralegal in the law fIrm of Thomas, Thomas & Hafer LLP, hereby certifY that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, fIrst class, postage prepaid, to the following: Joseph L. Hitchings, Esquire 26 West High Street Carlisle, P A 17013-3093 ~~ flarbara A. Onorato, Paralegal Date: January 24, 2001 '" .' ,~ ' ,-" \[icht:k), 1l10rp. Esqmre Auomey I.D, No. 71117 THO.\IAS. TH()~1.-\S..~ IIAFF:R. U.I' 3u.5 North Front Street PllS1 Oftice Uux 999 f IaITishurg. Pennsylvania 1710X ('717)137.71.53 E-~Iail: mjt~? Hhlaw com AllOl1l<.'YS for Defemlant I)('S..-\,'\ BR.\.TIC llnd K..\.THLF:E:'\' BRATIC ERiKA M. BEARD, Plainti 1'1' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANt\ v. NO. 2000-6436 CIVIL ACTION - LA W 0 c::> 0 c:: ., ~ . ::j ~w == !~:;;g nlrn z::r:' - t5~ N :~A N .,,'- ., ~ 2- ':.::: ;.J _0 ::0> --....: ,-i -. ;o:;:;;:""Tt ~o ::::: 20 >2 r::? ......m CJ ..~ ~ W ~ fv DUSAN BRA TIC and KATHLEEN BRA TIC, Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS Al\'D TIDNGS FOR DISCOVERY PURSl'k'iT TO RULE 4009.21 Defendant intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena will be served. Date: January 16, 2001 By: THOMAS, THOMAS & HAFER LLP I,M /1 .'. n ! ii..... i't' 'L '/ll' ., '., I J! I .. , I )! .' if I If 'i /1' .; i /v1 I ; I f 'U.', '/ . V .' (... ',/ MrG ELE J. TH?Rf,-ESQUIRE Attorney for Defen&mt ..,- ^, , ;..,' . '-' ' ~ '.0 . Michele J. Thol1'. Esquire Atto1l1cy l.D. No.7] 117 THOMAS. THO;\IAS & IIAFEH.. LLJ' 305 North Front Stred Pnst Office Box 91J9 1 larTisburg, Pennsylvania 1 i lOX (717) 237~7]5J E-Mail: mjt@tthlaw,Cllnl Attorneys for Ddenualll IH'SA:'\ URATIC and K.-\THLEEi\ BRATlC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRA TIC and KATHLEEN BRA TIC, Defendants CERTIFICATE OF SERVICE A.l\'D NO''', this 16th day of January, 200], I, BARBARA ONORATO, a paralegal in the law firm of Thomas, Thomas & Hafer LLP, hereby certifY that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid. to the following: Joseph L. Hitchings, Esquire 26 West High Street Carlisle, P A 17013-3093 j r. I}'d i., ;; -' II I; I l/,. /i" i '. I!~ /./. d ."....- tV1 ~1,-!1... {h . ~/~.....iL_i.t Barbara A. Onorato, Paralegal Date: January 16, 2001 "'l--, ,. ~ ." I "''---', .' ,.. .'0"' '-.'<1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ERIKA M. BEARD, Plaintiff v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Appalachian Orthopedic Center Ltd.. One Dunwoody Drive, Carlisle. PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All medical records, reports, treatment notes. correspondence, etc. for any treatment rendered on behalf of Erika M. Beard, d/o/b: 9/1/30 SSN - 403-50-7872 at THOMAS. THOMAS & HAFER, LLP, 305 N. Front Street. POS 999. Harrisburg. PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance. the reasonable cost of preparing the copies or producing the things sough!. If you fail to prOduce the documents or things required by this subpoena. within twenty (20) days after its service, the party serving this subpoena may seek a cOurt order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Michele thoro Esauire ADDRESS 305 N. Front Street POB 999 Harrisburo PA 17108 TELEPHONE: (717) 237-7153 SUPREME COURT ID No: 71117 A TIORNEY FOR: Defendant Prothonorary/Clerk, Civil Division Deputy DATE: Seal of the Court " ,. . -,,, <"''''-' , ",,- .,,--o,!r'ij . COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ERIKA M. BEARD, Plaintiff v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRA TIC and KATHLEEN BRATIC, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Carlisle Hospital (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All medical records, reports. treatment notes. correspondence. etc. for any treatment rendered on behalf of Erika M. Beard, d/o/b: 9/1/30 SSN - 403-50-7872 al THOMAS. THOMAS & HAFER, llP. 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right 10 seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOllOWING PERSON: NAME: Michele Thoro. Esauire ADDRESS 305 N. Front Street POB 999 Harrisbura PA 17108 TELEPHONE (717) 237-7153 SUPREME COURT 10 No: 71117 ATTORNEY FOR: Defendant Prothonotary/Clerk, Civil Division Deputy DATE: Seal of the Court l>; '~"_~~<lEIil!l~liiliI;M;w..''''-~N'';_I~",*'''~~'''''"'"''~"''-''=-~ i-' "" "-. ~<'~I"".",.. ~,<" . ~"-, ,- "- ~ ,,, ". ruv,I',,',_'~' _'):'f,_ JliUl:l6ll -,~.~ o c: :g. -0 OJ rnfT1 Z::t1 Zc;:. (fJ ~~ "<-"- ~C] ~C) --0 ):>c: :z :< - '''0' ,-., __ '~,",>>~",^.._ ,~,,,, ,",-<~ '",,^',"', _7<' ""_~" __~". '-' t-_ ~ N en n ,i !:~ i:j I~ II "1 . !~ Il IJ !-; :'~ I, i,~ !~ o -n -u ::1;": r-::' :.n ,p -:f\ ",-,'~~\, ';5~~~ ".~~~.~ s ~~ ~ ~ '" ~,,~_".<LH.'''~.."~ ..,.,,-, v" ~, - - .-<,- - , - ~, -'.' ,-,-"', "',' c,' .~ , ,-" ,',0' ,,', ". iOr., ";,.C,,,----,,,,-; ,~~" '" -. """"",0.";"1 ~ Stephen E. Gedutdig, Esquire Attorney 1.0. No. 43530 Michele J. Thorp. Esquire Attorney J.D. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg. Pennsylvania 17108 (717) 237-7100 E-Mail: sea@ltthlaw.com Attorneys for Defendants: OUSAN BRATIC and KATHLEEN BRATIC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants NOTICE TO PLEAD TO: Plaintiff and Counsel: You are hereby notified to plead to the enclosed Answer with New Matter to Complaint within twenty (20) days from service hereof or a default judgment may be entered against you. ed ig, squire ele J. T rp, Esquire 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 Phone: (717) 255-7613 Attorneys for Defendants, Dusan Bratic and Kathleen Bratic , THOMAS & 1, """,,~~o---""- ~- .---,~ ,'" ,,,~,,*.~--,---, ,w~'-"'~<1;,>~,,,,,., ;';~_--;5 Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 Michele J. Thorp, Esquire Attorney I.D. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: sea@tthlaw.com Attorneys for Defendants: DUSAN BRATIC and KATHLEEN BRATIC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-6436 CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, Defendants ANSWER WITH NEW MATTER TO COMPLAINT AND NOW comes Defendants Dusan Bratic and Kathleen Bratic ("Defendants"), by and through their attorneys, Thomas, Thomas & Hafer, LLP and files this Answer and New Matter as follows: 1. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph, and proof thereof is demanded. 2. Admitted. 3. Admitted. 4. Admitted. , . '-' I, '~"' "-~-,, .' ,~,--,,"" 0- ,..." ,;,,-" , " ""';',';;, d'"c',. ."l, . 5. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph, and proof thereof is demanded. 6. Denied. This paragraph is denied pursuant to Pa. R.C.P. No. 1029(e) 7.a-c Denied. This paragraph is denied as a legal conclusion and pursuant to Pa. R.C.P. No. 1029(e). 8. Denied. This paragraph is denied as a legal conclusion and pursuant to Pa. R.C.P. No. 1029(e). 9. Denied. This paragraph is denied as a legal conclusion and pursuant to Pa. R.C.P. No. l029(e). WHEREFORE, Defendants, Dusan Bratic and Kathleen Bratic respectfully request your Honorable Court to dismiss Plaintiff's Complaint and enter judgment in favor of Defendants, with costs assessed to Plaintiff. NEW MATTER 10. Defendants incorporate herein by reference the averments and denials contained in paragraphs 1-9 of the Answer and New Matter. 11. Plaintiff's injuries and damages, which are specifically denied, were not caused by any acts, omissions, or breaches of duty of Defendants, but were caused in whole or in part, or were contributed to by the negligence, fault, or want , ~ 'C-'"" ~ " - ";'"':'"~- . --; ,,,>' ," '< , "" 0 ' ~- ,'._ -" ,_, _ J , ,_ ., or care of Plaintiff and/or persons or entities other than Defendants. 12. Plaintiff's claims are barred and/or limited in whole or in part by the Pennsylvania Comparative Negligence Act. 13. Plaintiff assumed the risk of her injuries. 14. Plaintiff's Complaint may be barred by the applicable statute of limitations. 15. Plaintiff's Complaint fails to state a claim against Defendants upon which relief can be granted. WHEREFORE, Defendants, Dusan Bratic and Kathleen Bratic respectfully request your Honorable Court to dismiss Plaintiff's Complaint and enter judgment in favor of Defendants, with costs assessed to Plaintiff. Respectfully submitted, 6/1 t..t Ie> I , I By: MICHELE J. THORP, ESQUIRE Attorney I.D. No. 71117 Attorneys for Defendants, DUSAN BRATIC and KATHLEEN BRATIC :112643.1 , - " "-~- 11:35 MAY 07, 2001 *22240 PAGE: 5/7 VERIFICATION We, DUSAN BRATIC and KATHLEEN BRATIC, hereby verify that the statements made in the foregoing ANSWER WITH NEW MATTER TO COMPLAINT are true and correct to the best of our personal knowledge or information and belief, as well as reports, records, conferences and other investigatory material made available to me. To the extent that the foregoing contains averments which are inconsistent in fact, we verify that my knowledge or information is sufficient to form a belief that one or more of them is true, although we are currently unable, after reasonable investigation, to ascertain which of the inconsistent averments are true. To the extent that the foregoing contains legal conclusions or opinions, we hereby state that our Verification is made upon the advice of counsel, upon whom we have relied in the filing of this document. This Verification is made C.S. 5 4904 related to unsworn ct to the penalties of 18 Pa. fications to authorities. Dusan Bratic ~4k~ Kathleen Bratic Dated: ~o/tJ/ I, " H.' " , ,-- ",- " ' _ ,,_ '<. '"", -~. ~~"o "", ,,_ __ -, ," ,,.; . &'';; ;_.o~,,". C'"'''" 'c, CERTIFICATE OF SERVICE I hereby certify that I served the within Answer with New Matter to Complaint by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Joseph L. Hitchings, Esquire 26 West High Street Carlisle, PA 17013-3093 THOMAS By: Date: 5/1 ......'01 I --'-t -"""," ';.,- .',", ..." -.01'"''''" . ~" ^ _e,v,' "._ " .. ^_,_'r" _,_ 0"..'," "---"-""-' ~"--j,"~~- ~~jJ """ . -, ,,,,'\~>.. '.- o ~ "lJ (i" n');" 2:::--:; ~~r "L ~~,- 5>c: 2; =< . ~, CO) ~".... C->, f'.,.i . ~ .:' :'.11 (J1 : " " .- " ".," I:, ", ERIKA M. BEARD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.: 2000-6436 DUSAN BRATIC and KATHLEEN: BRATIC, CIVIL ACTION - LAW REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Erika M. Beard, by and through her undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and replies to Defendant's New Matter as follows: 10. Paragraphs 1 through 9 of Plaintiff's Complaint are incorporated herein by reference as if the same were more fully set forth at length herein. 11. The averments of Paragraph 11 constitute conclusions of law to 12. of law to 13. of law to 14. SAIDIS SHUFF, FLOWER of law to & LINDSAY ATIORNEYS-AT-LAW 15. 26 W. High Street Carlisle. PA of law to which no responsive pleading is required. The averments of Paragraph 11 constitute conclusions which no responsive pleading is required. The averments of Paragraph 11 constitute conclusions which no responsive pleading is required. The averments of Paragraph 11 constitute conclusions which no responsive pleading is required. The averments of Paragraph 11 constitute conclusions which no responsive pleading is required. jj I, SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYS'AT'LAW 26 W. High Street Carlisle. PA \. " ". . < '<'"".-'''- WHEREFORE, Plaintiff, Erika M. Beard, respectfully requests judgment in her favor and against the Defendants as set forth in her Complaint. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Dated: 5- \'1-0 I e L. Hitchin , Esq orney I.D. # 65551 26 West High Street Carlisle, PA 17013 (717) 243-6422 Attorney for Plaintiff Ii SAlOIS SHUFF, FLOWER I & UNDSAY ,I ,I'i ATfORNEys'AT'LAW 26 W. High Street Carlisle. P A VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subj ect to the penal ties of 18 Pa. C.s. ~ 4904, relating to unsworn falsification to authorities. DATED: '5- \,- 0\ ~~~'b~ Erika M. Beard II SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYSIAT'LAW 26 W. High Street Carlisle, P A .11~1 CERTIFICATE OF SERViCE I certify that on ~ [~ ' 2001, I served a true and correct copy of the within Reply to New Matter upon counsel for Defendants in this matter by depositing same in the United States mail, first class, postage prepaid, addressed on follows: Michele J. Thorp, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 SAlOIS, SHUFF, FLOWER & LINDSAY DATED: ~{16Iq I II ... JU --i&.YI r.~~._~~~~~t1M~~j~~.MiI"'_JiIi'HiIat*- -~ "" ",e e' ,~ ~,l'rr"'" "Ii!ll;j;"' ,-~ ~- e - , ~ 0 (~; ", ,; -0 ... n 1 ~;::; , -q ;;:: , l~ z: t:., ., 1::-) ~~ ~ C.:) <-) () si l . ''7'J --;! ---r; c:' 1 :J:I ..,~~ co , C) 5> :.....:;. rn c: ~ ~ ~ ~ w -< ~_O' _,I~ Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 . (717)761-4540 Attorneys for Additional Defendant ERIKA M. BEARD, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-6436 v. CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, JURY TRIAL DEMANDED Defendants v. CANCUN MEXICAN RESTAURANT, INC., Additional Defendant PRAECIPE TO ENTER APPEARANCE AND RULE TO FILE JOINDER COMPLAINT AND NOW, this t !.fay July, 2001, enter our appearance for Additional Defendant and issue a rule to Defendants to file a complaint within twenty (20) days of the date of service thereof, or suffer judgment of non pros. JOH~FFIE' STOW'oT , ''''fNER By: . oy Weidner, Jr. RULE TO FILE COMPLAINT TO THE DEFENDANTS: AND NOW, thiscJ~day of ~~i, , 2001, a Rule is hereby issued to you to file your complaint in the above-captioned action within twenty (20) days of the date of service hereof, or suffer judgment of non pros. CURTIS R. LONG, PROTHONOTARY -By: ~a.........9 .P ~'7t{rJ)/).AI. J Deputy :148357 5774-338 , - ~'~.'"""~I>lIIcl!~Im~Jj..,1IiIi>l\l'<I>M<4g"f~effi,#"~-.*~,;,,,,,,,,",,,,~!IiI.!lillliEiIilll~-'""""""'" ~~ ~ '"Co' . "" "' '" 1^'C'_ -""''''-''~ I,,,, '-,~, '''"; ~.' ""C_, ",-')'<'~'.'-',' ", , "-, "", " " '" "'''. '-",,"~ ,-, '--""",,', ."" -,--' -, "" -~.:' ;",-; ~~,'; J',) z:-- c:: -,",,""-'., ''''-'~''''''~~ - <~ ,~ l" I"~': j. 1', r:: Ii I, I , I ('I i:'1 I:': ';i '''1 i" !" I;"~ Iii !j,: ".1 1:1 I; '-1- ~~ ~w ,~~ ~H', -- -,',- - ,,-.~ " - - ~- ,,-, -"",c. .-, '~ ". '",. ~ Michele J. Thorp, Esquire Attorney !.D. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street post Office Box 999 Harrisburg, Pennsylvania 17108 (117) 237-7100 Attorneys for Defendants: DUSAN BRATIC and KATllLEEN BRATIC ERIKA M.BEARD, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 2000-6436 DUSAN BRATIC and KATHLEENBRATIC, Defendants CIVIL ACTION -- LAW v. : JURY TRIAL DEMANDED CANCUN MEXICAN RESTAURANT, INC., Additional Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Notice and Complaint are served, by entering a written appearance personally or by attorney and filing in writing with this 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 Plaintiffs. 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 HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 800-990-9108 , -j! "' - -0' ,--, .^~ .' -,-_..^",._--' - ,--. ~ ,,-, ~-o,- __ . ;.^ -,~ " . ,. ~ L",,"~- NOTICIA LE RAN DEMANDO A USTED EN LA CORTE. Si usted qui ere defenderse de estas demandas expuestas en las paginas siguientes, usted tien viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia excrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades 0 otros derechos impotantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 800-990-9108 THOMAS, THOMAS & HAFER, LLP By: Mic orp,E q . e J.D. No. 71117 305 North Front Street Post Office Box 999 Harrisburg, P A 17108-0999 (717) 237-7153 ---', ;,--;- h",- "'---0 - '~ _ '.'>-. ~;__.,;","-~_'__ ,-'-,'_CO "~,,,,,.-1 ;e"""'-~-"'"-J';'~;_;"", ."_.c,,,_", _~ ' 1-'" .- _I" Michele J. Thorp, Esquire Attorney I.D. No. 71117 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 Attorneys for Defendants: DUSAN DRATIC and KATHLEEN DRATIC ERIKA M. BEARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-6436 DUSAN BRATIC and KATHLEEN BRATIC, Defendants CIVIL ACTION -- LAW v. JURY TRIAL DEMANDED CANCUN MEXICAN RESTAURANT, INC., Additional Defendant JOINDER COMPLAINT OF DEFENDANTS DUSAN BRATlC AND KATHLEEN BRATlC AGAINST CANCUN RESTAURANT AND NOW, comes the Defendants Dusan Bratic and Kathleen Bratic ("Defendants"), by and through their attorneys, Thomas, Thomas & Hafer, LLP, and files this Joinder Complaint against Additional Defendant Cancun Restaurant as follows: 1. Plaintiff Erika M. Beard ("Plaintiff') is an adult individual residing at 14 Goblin Drive, Carlisle, Cumberland County, Peunsylvania 17013. 2. Defendants, Dusan Bratic and Kathleen Bratic (Defendants"), are adult married individuals residing at 1521 High Meadow Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Additional Defendant Cancun Mexican Restaurant, Inc. ("Additional Defendant") owns and operates an eating establishment located at 853 North Hanover Street, Carlisle, Cumberland County, Pennsylvania. " > .~ , "', '. "'~ ,,0 -,' ~ --, I - , ~. , . """;0"';'-. 'I 4. On or about September 20, 2000, Plaintiff filed a Complaint against Defendants. A copy of said Complaint is attached hereto, incorporated herein by reference and marked as Exhibit "A." 5. Plaintiffs have alleged that on October 27, 1999, Plaintiff Erika Beard was walking north on Hanover Street in front of the property at 853 N. Hanover Street, when she tripped and fell over an alleged defect in the sidewalk. 6. At the time of the incident in question, Defendants were the owners of the property at 853 N. Hanover Street. 7. At the time of the alleged incident, Additional Defendant was the tenant on the property in question. 8. A copy of the lease agreement between Defendants and Additional Defendant is attached hereto, incorporated herein by reference and marked as Exhibit "B." 9. On or about November 27,2000, Defendants filed a Praecipe for Writ of Summons against Additional Defendant. 10. Additional Defendants was properly served by Cumberland County Sheriff on or about November 27,2000. 11. If Plaintiffs prove Plaintiff Erika Beard fell and she fell where she claims, and if her fall is as a result of any deficiency, problem or defect in the sidewalk in front of the property at 853 North Hanover Street, Carlisle, Cumberland County, Pennsylvania, all of which are denied as aforesaid, Defendants believe and therefore aver that Additional Defendant was responsible for the maintenance of the sidewalk at the location in question. fe' ".~~ '__r.~ ,_ ,___ r ., " -- '," - 0,-' - "",,; ,'j-.~-;;" - -- > -" ,~;_"~" '" '_ ' .' ',,~ - 12. Accordingly, any liability on the part of Defendants, which is specifically denied, would be wholly secondary and passive, and liability of Additional Defendant would be primary and active. 13. If it is determined that Plaintiffs are entitled to recover any and/or all of the damages set forth in their Complaint, which is specifically denied, then Additional Defendant may therefore be solely liable to Plaintiffs, jointly liable to Plaintiffs, or liable over to Defendants for contribution, indenmification or both. Wherefore, Defendants Dusan Bratic and Kathleen Bratic request your Honorable Court to dismiss Plaintiffs' Complaint and enter judgment in their favor. In the alternative, if it is determined that Plaintiffs are entitled to recover against Defendants, Dusan Bratic and Kathleen Bratic, which is specifically denied, then Defendants, Dusan Bratic and Kathleen Bratic respectfully request your Honorable Court to enter judgment against Additional Defendant Cancun Restaurant for joint and several liability, contribution, indemnification or all three, or sole liability to Plaintiffs. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: <::C> /z. Y-/ 0 I By: Michele . Tho , Esqui e Attorney J.D. # 71117 P.O. Box 999 305 N. Front Street Harrisburg, P A 17108-0999 (717)237-7125 ~ ~ IJ"" ,..;, "'uuu 'LI..,'JU"W'"'' \JVV .L H ", UllOI I t\, It U l J. 77 e. $9"""" L~ IJ I I (.. I I 1. J/ (.J ......IdS I E:RJ'1(A /of. IlI!.\RO. P14imitt I III 'rilE COIJP.! OF COMMON Pt.IA.S I:llMB!JltJ.ANO eO::JN'J'Y, PSNNSYLVAlilIA ...., NO. I ~CQ)., /;4 3~ i g !il ~' f<t :.J .ri ..... ;'\;~ .. N ","" ~tiJ 0 ~.~~ I!R ~ i~j,~ ~~ ~ (,1'11 lmill..%UJl~ ~ ~ ~ You have been s~e~ in C~Urc. If you wish eo defend ~g~lnet the claims see fo1'~11. in th~ rOUowlng pagee, you muat take a~tior; within tWllnty 120) daye Jlfte'l' this Comphinl: ,~nd l10ticQ an se:rved, by en~erJ.n9' a wdt~en Ilppe..nnce PlII'Sol\lllly 01: by attorr.ey a.nd fili,,!> 1:1. "'l:'~ting ...~t:.h tlle COllrt you" eef~l\.es or obja~tio"o tQ the ~l.1~~ see fQl:th &g_inse yeu. tou are watned thae i~ y~u fail co do eo the caS8 may proceed without you an4 . juc:1gment ~~y be ente:red aga1nEt you by che coure without further no~i~e for any money claimed ~n the Co~laint or for any other cJ~i~ or ra:i8! r.quee~ed by th. 91~inti!f. Yo~ may lee. ~en8Y or ';lropart:y or ott\e~ l'tghtll l.mpol:tal'lt to you. DUSAN aRA~rc and KATHLEEN: BAA-TIC, CIVIL ACT!ON . LA~ Defendant & I yO!) Sl!Ot1'-D TAKlIl TIll S PAPER TO YOUR rJlW'{ER A'!' ONCE. Ir YOU 00 110!' ,Ill"'\; A :Jl.W'lllR OR, CANNO'! AFFORO ONE, c;o 'IO OR 'l:BI;EPHO~ rHE OFFICE sn 'i'OR'l'H BELOW 10 nNO aur WHERE ~OlJ CAN Cl!T LEGAL HET.? Court AdrnLn1~trator 4th Floor, Cumberland Cowlcy Ccurt.hou!;Ie Car:isla, PA 17013 :~Q.5200 SArOIS, SHUFF & MASLA.~ Dated: q,:~'4)-~': ~- ..~ i'J)") . By" ....,.,,1/ ..:.. J1.1. .;r'oseph 1.. R~tQn~r.g/S, E's'flUire Su~rame Ceu=t r.n. i 6~~51 ~6 West HLgh S~reec Car:isle, ph 17013 (n71 H3'1i~:<2 Attorney for Plaintiff 1RU~ CQPV FROMREOORO InT,"', ,"*1, IJ,*/III, =,,'~"'~i And ~1 01 "e&Id,', 1\ Cattlslt. n.l~ ~", , .' , IlrlIIllIlnIMrt i I W'o ~OO'O~ 9(:8; 0' 'e~ das ON 131 0(1-13-2000 12:45 9S;-; P.0S ~ ' ~"'" - .- . ---~ VH, IJ, LUUU .11L.,JOIlY1~M 1,,\'" lll~, I I n u g, rd. 11 U 11 776.6~ SRa:~ H. BItAA~, I IN IHI ~OUll'1' OF CQl'Il>IOlI PI.IAS ~~""1ZR1.IIml COiJNn', PJl!llN9YLV~I'" Pl'1m1!~ v. J NOd O\:7SA.~ allAn c _"" KA'rllLUII, SIlAne, ~:V.L ACflQN _ LAW a.fOndant.: COMPU.!M'P ~~~ MOw ecm~, tte Pl.1~eitl, !rika M. a.~rd, ~y end ~h~o~~h ho= a::orn.YSr S41a1., sr.~f:. r:ower & LindslY, and aY.rs in 8~b~ort o~ her OO~lA1Qt aq&inct Oet.~Qant aD fol1c". , 1. Pl'~~tiff. ET1~a M. Beard, is an adult 1r.d~v1dual ~.8idinq at l' Ge~i~ Oriva, C.rlisle. CUmberl;n~ COUnty, P.r.~.y]v~1. 1701J. 2. D8r.na.n~&. ~U8&~ arl~i~ _nd K~~kl..~ Bra~1~ are &~ulc ~~rted indtYi=~al! :e~~~in9 a= lS~t ~19h Meadow L4riaJ MeCh~~\;.b~rgl C~&rl'~d ~O~,ty. ftnna(!v~ni. l~OSS. ). -'t all t.:.rt'l41a mac.ri'i..l, hDt'GtOr .!;JvferuJA:ns were the O~Q~, of ~~Qibrty lC:Attd a: 8!3 Uor~h HIDoV8r $~re~: Ln the aO~CU9h of C$rliola, r....ylv~nl., 4. At a11 '4iTll_ElI!l ~,!'lt.l:r.{al he~;Q, D~t:l!ndante \IIlI'<C'1! t.!':.e: ~wr.e:g of the side~alk in Cro~t of tnft ~ropercy 1oc~ted at 851 Sorth Bar.ov~r gereA~ ,~ tk. RQ~~ugh o( C~rl is!_, ~Dr.r.~YlvAn~a. ~O'cl ~OO'u~ iO:~t Q~ '~~ Qat OCT 13 2000 12:46 O:ZC-l~~-ll~'ON ~3l 717 30,3 2284 9.5% 110.1dl I I I I ,"'-'- I,,,,,,,,,,,,,,,. r. 0/ ~j P.El4 ;".06 w Oct. IJ. ~uuu '1UdPM~M CGU Ins, - ~~"~~, ' ~ I L~ ~ Hbg, Pa. 17011 7766~? No. 1277 P. 7/23 , ."'.... s. On Oc~ober 27, 1999, Plaintiff was wal~1ng nc~th Q~ ~anover Street in tne Soro~gh of Carl~sle Qn the .i4ewalk fa front of ~he proplrty ~t aSJ Nox~h Ranover Street ~hen She tr{prp.d oV~r a ~ to 4 incr. xalaed Ceat~on of si~.waLk And fell to :he gro~~d, landing on ner 101ft wriat. Ii. l''1aint:i.H 4\lffered ~erioUIl inj ~..i,", in ~h" (all, inoL~di~~ A' fract~rad lete wri~t, la~etations o~ the Lowe! lip and right hand, p_uisas to both knees and a gevere spra1~ of. thg 10lfe "nIUe. '. The injuriu 9uff..",d by PlaiI1t~~f !n the fdt were ~ direct and proximate rss~lt of the negligence of Defendante 1n the following panicu:an: d) [ailing to r.~ai~ or cor~ect the de~eotlve .idewalk ~n front of th@ir property, bl allow~ng a dangerous cond~tion co exl.~ on t~e !~dewalk ~n an area known by them to be ~sed bedvi l.y by the pl.lbl1c; . c) fallins to rep~ir, C:OJrJ;"c;t or replac.. the ~eteQtive ~ectio~ Qf sidewalk after rac.ivin9 no~ice from ehe BorQugh of Carlisle that the ateewalk needed to be replaced. 8. AS a d~tQct and proximate re!~lt of Pl4inti~f'e injl.lr;ec, ehe has in the p~.t and will in the fut~re be force 2 iO'.:I ~QO' ON 90' 8~ 0:' SZ d_S OZl6-~.P-llL'DN 13" OCT 13 2000 12:46 71? 303 2284 96% P.O? ~ ~. Uet. jJ. iUUU 'jC:j~nvl'M l\'" lns, nu g, r a. j I U j 1 7766" l~U. U II r. 0/ 'J . Ww to incur medical ;>rooedYras and medic:lll expense~ fo. t.;-eatment of Q~id injuries. 9. As a direct and proximate resule oe h.r injuries, Pla~ntif~ has euff@red pain. 1noonve~lencG Qn~ thQ lOB. of :i.fe'a plaasl.:rGlB, SOme or all of which M4y be pe.man.nt:. WHEREFORE. P."ir.=1ff, Erik~ M. a~ar.d. damaoas judgment eQainat the Deter.~an~a, P\.Isan Sratic anQ Kathleen Brati~ in an amoune in .~~.~s of $~5.COO.oo. Re8peotf~11y gubmi~~ed, SAIO.". SHUFF, FLOWER r;, LINDSAY Oal;e ':/. Jc- " D~.. )"/ ,?, jj, I~~ .:l6seph L. H1t <;;hingll ~" Esquire Aee~~ney t.e. i g;S51 26' West High Ser..l!It C~rlisle, ~A 170~. (7~ 7) ~43'G22~ ~ctorn!y for Plaintiff 3 '.:O'd 1.00'1l~ 9C:8: 0: '8l, daS 0,,6-~E'-1.11.'ON 131 OCT 13 2000 12:46 717 303 2284 96/; .. .....1-..""""'" P,08 . "~ "..~.......J ,. > ';-""0'\' 'VCI. ,J. ~UUU 'IL"J:jrliHI'I CUU III" nu~, r it,ll U 11 7766-"? lVU,lt./1 r. ~/ l.J ,.. a C r , . VlI!:r'I'IC::ATl:;C~ I v~.ily that the '!4tem~nts made in ~he foreqolag Complain~ ~re true and co;reot. ! u~de:8~and that ~al~e seacamenl;e herQin al:e made subjece to the per...ltios ell 18 1';0. C. s. S "I9C4, relllt."9' to lIr.IOWorJ~ f41sitic;a~ion to authoritiell. 011. Tli:D : '\- \CI. ~ ~'""tlO ~\\~ t\1u . :c,o.o-.k Erika M. lleud ~O'~ "OO'"~ 9C:S: o;'e~ das O",,6-"~p-LIL'rN l3l OCT 13 2000 12:46 717 303 2284 95% P.09 - .' ;'4 ..~ ~^ I~.. "'. l".,t,,,, /.. and 15, LEASE AGREEMENT This Agreement made this "1.<{w. day of ~ between Dusan Bratic, having offices ~t 1 South Di11sburg, PA 17019 (hereinafter "Lessor") , 1999, by U.S. Route AND Maria Christina Trejo~ of 4 Dulles Drive, Apt. G, Camp Hill, PA 17011, Francisco Salazar and Victoria Salazar, husband and wife, of 468 Piedmont Street, York, PA, Maria Franco and Pedro Franco, husband and wife, of 317 Los Banos, San Quinten, CA, and Vose Trejo and Maria Trejo, husband and wife, of 902 Iroquis Court, Harrisburg, PA. All of the tenants shall be jointly and severally liable. 1. Premises. The Lessor, in consideration of the rents and covenants hereinafter set forth, does demise and lease unto the Lessee the restaurant situate at 853 Hanover Street, Carlisle, Cumberland County, Pennsylvania. The Landlord reserves enough land from the leased premises as would allow the erection and illumination of a statute of Jim Thorpe together with enough green area to protect the statute from being struck by vehicles. 2. Term. (a) The initial term of this Lease shall be for a period of five (5) years (the "Term") from August 1,1999 and one five (5) year option thereafter. Said option shall be deemed exercised unless the Lessee provides the Lessor with a 180 day written notice prior to the end of the primary term of his intention not to exercise the option. (b) At the time of execution of this Lease, Lessee shall deliver to Lessor a good faith security deposit of $9,000.00 which is to be held by Lessor. No part of the security deposit shall be considered or be applied to any rental payments. 3 . Rent. (a) During the first five (5) years of the Term of this Lease, Lessee shall pay to Lessor, as baEe rent for the Premises, as set forth in the accompanying Exhibit A. The base rent for the first month shall be prorated using the rental amount as the numerator and the days r . ~nth as the denominator. DEFENDANT'S /0 r I~ EXHIBIT I " , ~,~,~ . ::J )C OCT 111000 ....~ , " " ". '. 11'!Ii"~,,"1" (b) All rents shall be triple net to the Lessor. 4. Payment of Rent. (a) Base rent shall be payable on the first day of each calendar month after the commencement date pursuant to paragraph 2 hereinabove. The first such payment to include any prorated rent for, the date payment of rent commences to the first day of the first full calendar month thereafter. Rent shall not be deemed to be delinquent, provided that it is received by the 5th day of the month. The date of postmark shall control. (b) Anything in this Lease to the contrary notwithstanding, at Lessor's option, Lessee shall pay, as additional rent, a late charge in the amount of Fifty ($50.00) Dollars or five percent (5%) of the payment, whichever is greater, for any rental payment not received within five (5) days after the due date. (c) It is the purpose and intent of the Lessor and Lessee that this Lease be deemed and construed to be a net, net, net Lease, and in no circumstances and under no conditions shall Lessor be required to make any payment with regard to the Premises other than as set forth herein. (d) There shall be no residential occupancy at the premises. 5. Improvements on the Premises. With prior written approval by Lessor, which approval will not be unreasonably withheld, the Premises may be remodeled by Lessee as Lessee may desire at any time during the Term or renewal term hereof, provided that such remodeling shall not diminish the fair market value of the Premises. Lessee shall procure and pay for necessary permits for said remodeling and shall at all times during any remodeling of the Premises, be in compliance with all statutes, laws, codes and ordinances. Lessee's work shall be at Lessee's sole cost and expense, and Lessee shall promptly pay all laborers, contractors and material supplymen performing such work and furnishing material therefore for Lessee. No lien agreements will be filed with the Prothonotary of Cumberland County prior to the commencement of any such remodeling work, and Lessee agrees to promptly satisfy all claims and/or mechanics' liens stemming in any manner from such Lessee's work. Lessee may, subject to the provisions of this paragraph, at its option and at its sole cost and expense, make such non-structural al terations, changes, replacements, improvements, and additions in and to the Premises as it may deem desirable; provided, however, that all such non-structural changes must be in keeping with the present design of the building and must be approved in writing by Lessor, which approval will not be unreasonably withheld. All work done by Lessee or at Lessee's behalf shall comply with all state, county and local codes. 2 jar 't :I OCT 1 7 2000 " -~ ~ "- ~~ L ~ -~ 6. Utilities and Taxes. During the Term of this Lease and any renewal term, Lessee shall be solely responsible for, and shall make prompt payment of, all utility costs and expenses, including but not limited to: electrical service, natural gas service, water, sewage and rubbish and snow removal relating to the Premises. Lessee shall also be responsible for the payment of all real estate taxes assessed on the premises, with all lienable charges to be paid before they become "past due". Lessor may require Lessee to pay -to Lessor monthly, in addition to the required payments of rent payable under the Note and commencing with the first payment due after the date of such request, monthly payments of. 1/12th of the annual real estate taxes, insurance premiums, water and sewer rents and assessments together with the entire amount of any sums due for special assessments, charges or claims and any other item which, at any time, may be or become a lien upon the Leased Premises. 7. Maintenance. (a) Bv Lessor. The Premises are leased in an "as is" condition except as set forth in Exhibit B. Lessee is leasing the Premises based on its own inspection and not based upon any representations made by Lessor other than as set forth in this Lease. Lessor shall not be responsible for any repairs to the Premises during the term of this Lease; except that Lessor shall maintain the roof and the structural components of the property, provided any damage thereto is not caused by or through the Lessee it's employees, agents, customers, invitees or licencees. (b) Bv Lessee. Lessee shall be responsible for maintenance and repairing all items in the demised space, including the plumbing, HVAC and electrical systems, windows and entrance doors. Lessee shall, at its expense, maintain all parts of the interior of the Premises and all improvements of Lessee placed in the Premises, in good repair and condition and shall deliver up the Premises at the termination of this Lease in good condition, reasonable wear and tear excepted. Lessee shall be responsible for snow removal on the sidewalks. Lessee agrees to keep the hood system clean and inspected in accordance with insurance requirements and in compliance with NFPA #96, as amended, and shall at a minimum have hood systems professional cleaned and inspected at least semi-annually or as required by the insurance company or regulations and provide proof thereof to Lessor. A pest control contract shall be entered 'into by Lessee with a reputable exterminator and said premises shall be serviced on a monthly basis by such exterminator. The cost shall be borne by Lessee. Lessee agrees to provide Lessor with proof of such contract and copies of service bills within five (5) days of Lessor's request of the same. Lessee agrees to keep the HVAC system in good repair and enter into a preventative maintenance program by which the HVAC 3 )f1J -:/ 'f- OCT 1 7 2000 I, '..Ill ,'. ~-' .-..', ' - "~" ~" system is cleaned and any required preventive maintenance performed at least every four (4) months. Lessee agrees to keep the grease traps, if any, cleaned regularly, and the grounds shall be policed daily to ensure that they are free from cigarette butts, trash and debri. 8. Insurance. (a) Fire. Lessee shall provide standard fire and hazard insurance coverage with approved standard extended coverage endorsement for the Premises, with limits of coverage of not less than eighty percent (80%) of the full insurable value thereof or meeting the insurers co-insurance requirements whichever is greater and name the Lessors as additional insureds. (b). Liability. Lessee shall maintain comprehensive general liability insurance covering all occurrences within the leased Premises during the Term or renewal term hereof, with limits of coverage of not less than Five Hundred Thousand Dollars ($500,000.00) per person and One Million Dollars ($1,000,000.00) per incident. Lessee shall provide evidence of such coverage to Lessor. (c) Business Interruption. Lessee shall secure and maintain business interruption insurance in sufficient amounts to cover the rent due to the Lessor for up to twelve months. Lessee hereby appoints Lessor as its agent-in-fact to receive the proceeds from such coverage on a first priority basis, which means that Lessor shall first be paid the amount of rent due and Lessee shall thereafter receive all remaining funds. (d) Insurance Company. All insurance shall be maintained through an insurance carrier which is Best rated and licensed to transact business in Pennsylvania. 9. Damaoe or Destruction. (a) Except as provided in subparagraph (b) below, if the leased Premises is damaged by fire or other hazard ("Hazard Damage"), repairs shall be promptly commenced by Lessee within thirty (30) days of the occurrence. The rent shall not be abated and apportioned. (b) Notwithstanding the provisions of subparagraph (a) above, if all or a material portion of the leased Premises is damaged or destroyed by Hazard Damage and the cost to repair the entire damage to the leased Premises is more than eighty percent (80%) of the replacement cost of the building, then Lessee may, at its option, terminate this Lease by giving Lessor written notice of termination within forty-five (45) days of the date of the damage J41) 7~ f- 4 OCT 1 7 2DDO ~~ ~ .~ .L,. ," lIiL~_,.....;w.J.'; occurred provided the cost to repair said damage is covered by insurance which was in force as set forth in this Lease and the rights to such insurance coverages thereunder are turned over to Lessor. (c) Unless Lessee terminates this Lease in accordance with subparagraph (b) above, Lessee shall, within sixty (60) days after the Hazard Damage, give written notice to Lessor setting forth LeSsee's unqualified commitment to make all necessary repairs or replacements required to restore the Premises to at least as good as condition as immediately prior to the Hazard Damage. In such notice, Lessee shall set forth the date of commencement of said repair and Lessee's best good faith estimate of the date of completion of the same. . (d) Except for the portion of the business interruption insurance allocatable to the lessor as rent, which shall be paid as provided for in paragraph 11(d) above, all of the proceeds from the insurance coverage for the Hazard Damage shall be used to make timely payment of the costs and expenses incurred in repairing, remodeling, reconstructing and re-equipping the Premises to enable the Lessee to resume business operations as expeditiously as possible. 10. Erection of Sions. Lessee shall have the right and privilege of erecting signs for advertising purposes in connection with its business and the leased Premises provided, however, that all signs will be in keeping with the design of the building and shall be approved in writing by Lessor, which approval shall not be unreasonably withheld. Such signs will need to comply with applicable municipal ordinances. 11. Default bv Lessee. The occurrence of anyone of more of the following events shall constitute a material breach by the Lessee: (a) The failure by Lessee to make any payment of rent or to make payment on any other monetary obligation required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of ten (10) days after the due date or five (5) days after receipt of written notice thereof to Lessee from Lessor, whichever occurs first; (b) The failure by Lessee to observe or perform any of the other covenants, conditions or provisions of this Lease, where such failure shall continue for a period of thirty (30) days after receipt of written notice thereof by Lessee from Lessor; provide, however, that if the nature of Lessee's default is such that it cannot be cured solely by payment of money and that more than thirty (30) days may be reasonably required for such a cure, then Lessee shall commence such cure within the thirty (30) day period and shall thereafter will due diligence prosecute such cure to 5 /JIT .- .~ r OCT 1 7 20DO . ''"'-'-- .' j .-.,j'" completion. 12. Lessor's Remedies. In the event of any default or breach of this Lease by Lessee, as set forth in paragraph 14 above, then Lessor, in addition to other rights or remedies it may have, shall have the right to terminate this Lease upon thirty (30) days written notice to Lessee, and also the right of re-entry upon and taking possession of the Premises, and ~Lessor may remove all persons and property from the Premises. The Lessor may secure the Premises to mitigate damage to the Property; or In the event that Lessee commits or allows an event of defaul t to occur, the entire rent for the balance of the Term shall, at Lessor's option, immediately become due and payable as if by the terms of this Lease it was all payable in advance. 13. Default bv Lessor. The occurrence of anyone or more of the following events shall constitute a material breach by Lessor: (a) The failure by Lessor to make any payment required to be made by Lessor hereunder, as and when due, where such failure shall continue for a period of thirty (30) days after written notice from Lessee to Lessor; (b) The failure by Lessor to observe or perform any of the covenants, conditions or provisions of this Lease where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessee to Lessor; provided, however, that if the nature of Lessor's default is such that it cannot be cured solely by payment of money, that more than thirty (30) days may be reasonably required for such cure, then Lessor shall not be deemed to be in default if Lessor shall commence such cure within such thirty (30) day period and shall thereafter prosecute such cure to completion. 14. Lessee's Remedies. In the event of any default or breach of this Lease by Lessor, as set forth in Paragraph 14 above, then Lessee, in addition to other rights or remedies which it may have, shall have the right to terminate this Lease upon sixty (60) days written notice to Lessor. 16. Holdover. If Lessee shall remain in possession of the Premises after expiration of the original or any extended term hereof, Lessee's occupancy shall be a month to month tenancy at the rental rate determined by Lessor which shall not exceed the monthly rent for the then last current term adjusted by the rate of inflation as determined by the U.S. Department of Commerce. 17. Use of Premises. Lessee shall have the right to use the Premises for the operation of a restaurant and for all uses incidental and related thereto. On the expiration date of this Lease, Lessee shall promptly quit and surrender the Premises and 6 j/11 r ,~I r OCT 17200() .1-_ deliver to Lessor possession of the Premises in good order c~ndition and repair, reasonable wear and tear excepted, at which t~e Lessor shall return to Lessee the Nine Thousand ($9,000.00) Dollar security deposit less any amount due for damages. 18. into such regard to operate a Leasehold Mortqaqes. Lessee shall be permitted to enter equipment leases and incur such other obligations with personalty Lessee owns as may b~ necessary to equip and restaurant on the Premises. 19. Condemnation. (a) If, by. exercise of the right of eminent domain or by a conveyance made in response to the threat of the exercise of such right, all of the Premises is taken, or if so much of the Premises is taken such that it cannot be used by Lessee for the Purposes contemplated in this Lease, the Lessor may, at its election, elect to terminate this Lease as of the date of the vesting of title in the condemning authority. The award rendered in a proceeding with respect to a taking subject to this paragraph will be allocated so that Lessee shall receive such portion sa shall be allocable to the business and contents and the Lessor shall receive such portion as shall be allocable to the building and the real property. (b) In the event that only part of the Premises is taken as a result of such condemnation proceedings such that the Premises can continue to be utilized as a restaurant, then this Lease shall continue in full force .and effect and Lessor shall restore the Premises into a condition to be utilized as a restaurant and the rent payable to the Terms of the Lease Agreement shall be abated in proportion to the size of the Premises remaining. 20. Subordination Non-Disturbance. The rights and interest of Lessee under this Lease shall be subject and subordinate to any and all mortgages that may presently exist with regard to the Premises and all renewals, replacements and extensions thereof. Any new mortgages shall recognize the existence of this Lease and the rights of the Lessee hereunder. As a prerequisite to Lessor's entitlement to any payment of rent by Lessee under the terms of this Lease, Lessor shall deliver to Lessee a written agreement, in recordable form, from each presently existing mortgagee with regard to the Premises, which provides that for so long as Lessee is not in default under the terms of this Lease, Lessee may remain in possession of the Premises pursuant to the terms hereof and without any diminution of the Lessee's rights should Lessor become in default with respect to such mortgage or should the Premises become the subject of any action to foreclose any mortgage or to dispossess Lessor. The Lessor shall have the right to enter into such future mortgages as it may desire which may include all or a portion of the Premises subject to the condition that each such mortgagee 7 J;1T t JT Ocr 1 72000 f" .-', ~'-" deliver a recordable agreement to the Lessee containing the provisions set forth hereinabove and that the Lessor's entitlement to receipt of rental payments from the Lessee is contingent upon Lessee's receipt of such agreement which must be in recordable form. In the event that Lessor shall default in the payment of installments or any obligation under any mortgage on or hereafter placed upon the Premises from which Lessor has defaulted and failed to obtain a non-disturbance agreement of if mortgagee fails to honor the same, in addition to any other remedy, Lessee shall have the right, at its option, to make any such payments as may be necessary to cure such defaults and shall be entitled to deduct the amount of such payments from any sums due Lessor under this Lease, including rentals. Notwithstanding the foregoing, Lessee is under no obligation whatsoever to cure any default of Lessor under any mortgage. 21. IN THE EVENT OF A DEFAULT BY THE LESSEE IN ANY OF ITS OBLIGATIONS UNDER THIS LEASE AND, OTHER THAN FOR A MONETARY DEFAULT, SHOULD SUCH DEFAULT NOT HAVE BEEN REMEDIED WITHIN THIRTY (30) DAYS AFTER WRITTEN NOTICE WAS SERVED BY LESSOR UPON LESSEE, OR, IN THE EVENT THAT A MONETARY DEFAULT HAS NOT BEEN REMEDIED AS SET FORTH IN PARAGRAPH 11 (a), THEN, IN ANY SUCH EVENT, LESSEE HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR LESSEE AND TO CONFESS JUDGMENT AGAINST LESSEE FOR THE RENT SPECIFIED IN THIS LEASE THEN UNPAID, OR ANY OTHER AMOUNT DUE, INCLUDING ACCELERATED RENT FOR THE REMAINING TERM UP TO THE AMOUNT OF ARREAR PLUS 12 MONTHS FUTURE RENT, TOGETHER WITH INTEREST, COSTS AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE AMOUNT SO CONFESSED WITH RELEASE OF ALL ERRORS AND WAIVER OF EXEMPTION OF ANY AND ALL PROPERTY FROM LEVY AND SALE UNDER ANY PRESENTLY EXISTING OR FUTURE LAW. THE AUTHORITY GRANTED IN THIS LEASE TO CONFESS JUDGMENT AG:AINST LESSEE SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS LEASE. THE EXERCISE OF THE LESSOR'S RIGHTS UNDER THIS PARAGRAPH SHALL NOT LIMIT OR BE A WAIVER OF ANY OTHER RIGHTS THE LESSOR MAY POSSESS UNDER THIS LEASE AND THOSE RIGHTS SHALL BE CUMULATIVE AND IN ADDITION TO THOSE CONTAINED IN THIS PARAGRAPH. 22. Covenants and Indemnitv. (a) The Lessor covenants that it is the true and lawful owner of the Premises and that the Premises will be delivered to the Lessee upon commencement of the Term of this Lease, free from all tenancies and other occupancies, and free from all orders and notices of violations filed or entered in any public or quasi- public authority, and free from complaints and/or reports of 8 JWT J' r OCT 1 72000 _ -.-, .' . ~J ;/.....;.O;~ violations, noted or existing in or filed with any Federal, State, County, Municipal or Local authorities. Lessor further warrants that it is not under any direction or order from any federal, state or local agency or authority, such as the Environmental Protection Agency or Pennsylvania Department of Environmental Resources to remove any material or soil from the Premises or to remediate any condition on the Premises. Lessor further warrants to Lessee that to the best of Lessor's knowledge, the Premises is not contaminated by Environmental Contamination as hereinafter defined. (b) Lessor's Indemnification. Lessor shall indemnify and hold harmless from and against any and all claims, suits, actions damages, costs, charges and expenses, including reasonable attorney's fees, which Lessee may incur by reason of Lessee having claws made against it relating to or arising from the covenants made by Lessor in Paragraph 13(a) of this Lease. (c) Lessee's Indemnification'. Lessee shall indemnify and hold Lessor harmless from. and against any and all claims, suits, actions, damages, costs, charges and expenses, including reasonable attorney's fees, which Lessor may incur by reason of any EnvironmElntal Contamination of the Premises which is caused by Lessee, its agents or invitees. Such obligation to indemnify and hold harmless Lessor shall not extend to any Environmental Contamination of the Premises which is caused by or contributed to by Lessor; its agents or employees. The term "Environmental Contamination" as used in this Article shall mean any and all elements, compounds, chemical mixtures, contaminants, pollutants, or other substances identified as hazardous substances or contaminants under the Comprehensive Liability Act of 1980, as amended, 42 USC SS 9601 et ~. and all comparable statutes and regulations of the Commonwealth of Pennsylvania or any petroleum or petroleum products, asbestos and hydrocarbons. 23 . Les sor' s Response Time. Any approvals required from the Lessor under any of the provisions of this Lease must be received by Lessee within seven (7) days of receipt of Lessee's submittal. Failure of the Lessor to timely respond shall constitute approval of the Lessee's submittal. Requests for approvals may be submitted by fax 50 long a5 they are legible. 24. Assionment and Sublettino. Lessee shall not voluntarily or by operation of law, sublet, assign or transfer all or any part of Lessee's interest in this Lease or in the Premises without having first obtained the written consent of Lessor, which consent shall not be unreasonably withheld provide the transferee is financially sound. Lessor may assign or transfer its interests to any entity or individually to them provided all terms of this agreement are incorporated therein. 25. Notice. All notices required or permitted to be given under the terms of this lease agreement may be served upon one or 9 .' Ocr 1 '1 (000 , . c ~ ,-~,- '^ j~~, more of the parties at the addresses set forth herein: Lessor: Dusan Bratic 101 South U.S. Dillsburg, PA (717) 432-9706 Route 15 17019 Lessee: Maria Christina Trejo 853 Hanover Street - Carlisle, PA 17013 Francisco and Victoria Salazar, Husband and wife 853 Hanover Street Carlisle, PA 17013 Maria and Pedro Franco, husband and wife 853 Hanover Street Carlisle, PA 17013 Vose and Maria Trejo, husband and wife 853 Hanover Street Carlisle, PA 17013 Notice hereunder shall be deemed to be given on the date of service, if personally delivered, or on the date posted, if posted, or as evidenced by return receipt if sent by mail or on the date of delivery by UPS, Airborne or Federal Express. Notice shall be deemed to have been given when served on any adult then in charge of the business at the time of service at the addresses listed above. Each party shall notify the other of any change of address, 10 ;i!T / -7T Ocr 1 72000 I. ""~ ,~-, and such notice shall specifically refer to this Lease Agreement. 26. Separability. If any provision of this Lease is held to be invalid or unenforceable, all other provisions shall nevertheless remain and continue in full force and effect. 27. Entire Aareement and Provisions Bindina. This Lease contains all the agreements between the. parties and cannot be modified in any manner other than by a writing signed by the parties. The Agreements herein shall be binding upon and inure to the benefit of the successors and assigns of the parties. This Lease is to be construed in accordance with the laws of the Commonwealth of Pennsylvania. 28. Ouiet En;ovment. Lessor covenants and agrees that Lessee, upon payment of the rent and other charges provided for in this Lease and fulfillment of the obligations under the covenants and conditions of this Lease, shall lawfully and quietly hold, occupy and enjoy the use of the Premises during the Term of this Lease and any renewals without any interference from anyone claiming through or under the Lessor. 29. Brokeraae Fee. Lessor and Lessee agree that there has been no realtor or broker with regard to this Lease. 30. Counterparts. This agreement maybe signed in one or more counterparts each of which will be deemed and treated as an original. IN WITNESS WHEREOF, and intending to be legally bound, the parties have caused this Lease to be duly ex cuted the day and year first above written. Lessor ATTEST ~~hu--. ~ ~T-~ /# .;/-- Lessee ATTEST By: By: /1'(7 9 g. ~P'~-; VLessee' '"7 By: Lessee By: Lessee 11 /I1r t ~ V OCT 1 7 2000 12 ,> .---~ , '...;j,.- ""', /1/1;- .' --:7 ( OCT 1 7 2000 , ~ EXHIBIT A RENT YEARS 1 THROUGH 5 $36,000.00 ANNUAL NNN.. RENT FIRST FIVE YEAR OPTION FOR EACH YEAR OF THE FIVE YEAR OPTION SHALL BE INCREASED BY 15% OVER THE BASE ANNUAL RENT IN THE FIRST FIVE YEAR TERM. 13 /11T ~'I '1l...J llt~, OCT 1 7 2000 EXHIBIT B LANDLORD'S 'RESPONSIBILITIES J. -- >- A. ENSURE THAT THE HVAC IS IN PROPER WORKING ORDER. B. ENSURE THE HOOD SYSTEM IS OPERATIONAL. C. ENSURE THE FIRE SUPPRESSION SYSTEM IS OPERATIONAL. D. ENSURE THE WALK-IN COOLER IS OPERATIONAL. E. ALL BROKEN WINDOWS REPLACED. F. PAINT EXTERIOR AND REPLACE ALL ROTTED SIDING. G. REPAIR ROOF LEAKS. H. REPLACE ALL DAMAGED CEILING TILES. I. SECURE BUILDING. J RESURFACE PARKING LOT AND RE-STRIPE WITHIN 3 MONTHS OF OPENING. 14 P7f J 1- OCT 1 7 2000 _,_~"E~'~ ,__~ . ", __, '~ "/,~^., ' 0 -.";',,/,' ~_,.."_ __ ,'..,\_.'",,"~ ,""" "' " , , " ",. - <-. ' i ~-, '';'; VERIFICATION I, Michele J. Thorp, Esquire, attorney for the Defendants, Dusan Bratic and Kathleen Bratic, herein state that the facts as set forth in the forgoing Joinder Complaint are true and correct to the best of my knowledge and belief. This Verification is not made by the party because of the timely nature of this document and the present unavailability of my client to sign this Verification. DATE: 5/'7- '+ /0 I I , -, ~""---" ~.~, 0..,' .' "~'- '-,~',~' ">'-"'<-"\~=,J,--_";~" -", .-_ '-[_"_'1>'",' ;'>;''''~1 CERTIFICATE OF SERVICE 1. Jeannie L. Kawalec, an employee for the law firm Thomas, Thomas & Hafer, LLP, hereby state that a true and correct copy of the foregoing Joinder Complaint was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: By First Class U.S. Mail: Joseph L. Hitchings, Esquire SADIS, SHUFF & MASLAND 26 West High Street Carlisle, Pennsylvania 17013 C. Roy Weidner Jr., Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, P A 17043 THOMAS, THOMAS & HAFER, LLP Dated: ~ ) 1 ( D I ~L~ ". 0;. ',....~ l.WiliiJi. , I ~.. ~."~'l<~~~ " JIiIljji"~'~ ~- ~ , " - ~ , , ~, ~ :1 !t C? r' ) C) '- , I ;::.-- :) T " r,-j I r.-) -, , ~~ , 1'<,) en 0-., -<. f_, ;.:::;. 00'_" :<; , , :.-,,) ~, c , -- S! )-; ()"j :rJ -< ,.. '~-' ~ ~ ~ "--- J,~_,~;iJ, . Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. LD. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761 -4540 Attorneys for Additional Defendant ERIKA M. BEARD, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-6436 v. CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRATIC, JURY TRIAL DEMANDED Defendants v. CANCUN MEXICAN RESTAURANT, INC., Additional Defendant ANSWER TO DEFENDANTS' JOINDER COMPLAINT AND NOW, this 20 tflty of November, 2001, comes Additional Defendant, through its undersigned attorneys, and answers Defendants' complaint as follows: 1. Denied. After a reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments. 2. Admitted. 3. Admitted in Part. Denied in Part. It is admitted that Additional Defendant operated an eating establishment. The remainder of this averment is denied. 4. - 6. Admitted. 7. - 8. Denied. ,,- ~ - ~ ,-I ~~, 9.- 10. Admitted. 11. Denied. It is specifically denied that Additional Defendant was responsible for the maintenance of the sidewalk. 12. -14. Denied. This averment is deemed denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, Additional Defendant demands that Defendants' complaint against it be dismissed. ::HN6~ ~u~i ST:AR: WElD:R utRner, Jr. : 149502 5774-338 I, "~~ ""'",''ooI~- VERIFICA T/ON The undersigned says that the facts set forth in the foregoing answer are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. ~ 4904, relating to unsworn falsifications to authorities. CANCUN MEXICAN RESTAURANT, INC. By: !7Jfl{J~ 1~ Maria Franco . Dated: rl/zo(ol ,-. ~- .-" - ,-t-U'~''*""J"'~''_' CERTIFICA TE OF SERVICE AND NOW, this ~ ~ay of November, 2001, the undersigned does hereby certify that she did this date serve a copy of the foregoing answer upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Joseph L. Hitchings, Esquire Said is, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Michele J. Thorp, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER By: ~~-'~/4 ~~t/ . helle Hagy ~'~~a:JW,fu'''''';'<<''"~,r-;4l>,:;j;i,i,.i'''-''l"!cl1;;';;'":U~;....&i,,.!O;"#;,,,,;I~~j>l-ij"'w$t",,,t?""';"""'''''''!L''''..o,.ih,!:,,,,,,~\'l@l/laful!iljlilij~llij''~__~:ifI'Eldl,Mt...--..,- 1Il!II1J.uljj!/'" .~... -~-'~- ~"""""",,,,"-~ - C) C-") 0 C -q ~ Z ~ -00) ;::) nlrT: Tf'C c1;...:.! '. ~ ~~~~ f'.) "-',,;;'j, -'':';:::::; ~-~". ~S~~~ f<Ci -U >c:' ::J;: ~~~~ -:;::reS )>,- .:..;> C5rn '<.,.." );1 z =< ::D -< ,",,4 _, M'''~'''"' ,," ~~" ~ ~ I~.~~",~ ._~, ~ ~ . L .J "- ,,",.L~_~~b J. I~ohnson, Duffie, Stewart & Weidner By: C. Roy Weidner, JI. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Additional Defendant ERIKA M. BEARD, , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-6436 v. CIVIL ACTION - LAW DUSAN BRATIC and KATHLEEN BRA TIC, JURY TRIAL DEMANDED Defendants v. CANCUN MEXICAN RESTAURANT, INC., Additional Defendant PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above captioned action settled and discontinued, including all counterclaims, crossclaims and joinders of additional parties. S JOHN~RT & WEIDNE~ By: ~ C. Roy Weidner, Jr. By: DISCONTINUANCE CERTlFICA TE AND NOW, -)::K) P. :;). t:lD^- I '";th'"i:~:;e~l PR THONOTARY ':;r/YJ :152544 ~-, ~ti!liil;1@;?.'R.;,' .' .. CERTlFICA TE OF SERVICE AND NOW, this 1#' day of January, 2002, the undersigned does hereby certify that she did this date serve a copy of the foregoing praecipe upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Joseph L. Hitchings, Esquire Said is, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Michele J. Thorp, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER By:~e.t(4 ~. . lie Hagy I __..,~':..........hl^.",---.~...~.atlf'ilU<lJ~".IMiH~':lkill.I'Ilt~i1;<Ioi>4--.';;;;;;''''N'-j,,"''''''I~'Eldllill1lliiiiIIif1!liliiliilllji!<I~~"~- "'" L " ~ "1I~' ~ 'I ) .. 0 CJ 0 N '''0 c::. :c.: .,- _"_1 -nee :;::;;.s ~;? -~ fnrTl "'..... -':-\\:7 Z:J} t Z\~" 0:> ~~~ ~~~. ~:::.::~ c,C) -0 ' --\1 - ::Jt. i;~~ ~,...---) Z' ~9 Q --I " '-- .' j:, -/ 0 ~ (1"' '<