HomeMy WebLinkAbout00-08410
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MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
NO.00-84IO
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
: JURY TRIAL DEMANDED
ORDER
AND NOW this
day of
, 2005, upon
consideration of the Motion for Judgment of Non Pros of the Defendants, Anthony P. Beaston,
Jeffrey M. Beaston and Michelle A. Beaston, and the failure of plaintiff to file an response, it is
hereby ORDERED and DECREED that that the defendants' motion is granted and all counts of
the plaintiff's Complaint are dismissed with prejudice.
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RECEIVED AUG 02 ZOO
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JOHN GERARD DEVLlN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire and Michael S. McCarter, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER COURT OF COMMON PLEAS
CUMBERLAND COUNTY
I
v,
NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
.
BRIEF IN SUPPORT OF MOTION FOR JUDGMENT OF NON PROS
OF DEFENDANTS, ANTHONY P. BEASTON,
JEFFREY M. BEASTON AND MICHELLE A. BEASTON
.
The defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston,
hereby move this Honorable Court for a Judgment of Non Pros, and in support thereof aver as
follows:
.
I.
PROCEDURAL HISTORY
This matter is before this Honorable Court pursuant to a Motion for Judgment of Non
Pros filed by moving defendants on May 15, 2005. On May 19,2005, this Court issued a Rule to
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Show Cause why defendants are not entitled to Judgment of Non Pros. A copy of the Order is
attached hereto as Exhibit" A." The Order directed plaintiff to file an Answer to defendants'
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Motion within 21 days of March 19,2005. To date, plaintiff has not filed or served defendants
with an Answer to defendants' Motion,
Plaintiff commenced the present action by filing a Praecipe for a Writ of Summons on
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December 4, 2000. A copy of the Writ is attached hereto and marked as Exhibit "B." The
defendants filed a Praecipe for Rule to File Complaint on January 12,2001. A copy of the Rule
is attached hereto as Exhibit "c." Despite the fact that a Rule to File Complaint was entered by
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the Prothonotary on January 12,2001, and the fact that more than four (4) years have lapsed
since plaintiff commenced this action, plaintiff has failed to file a Complaint. See Court's
Docket, attached hereto as Exhibit "D." More than four (4) years have lapsed since plaintiff
commenced this action and more than eight (8) years have passed since the incident giving rise
to plaintiff's cause of action. Plaintiff filed a Statement of Intention to Proceed on October 26,
2004. See Court's Docket, attached hereto as Exhibit "D." However, as of this date, plaintiff
has still taken no action whatsoever to advance this matter, including answering the instant
Motion. No discovery has been exchanged and no depositions have occurred.
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QUESTION PRESENTED
Whether judgment of non pros should be entered on behalf of the defendant in a case
where more than eight (8) years have passed since the incident that gave rise to thecause of
II.
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action of plaintiff, more than four (4) years have passed since the plaintiff commenced the
action, plaintiff has not filed a Complaint, plaintiff has taken no action to advance this matter,
plaintiff has offered no compelling reason for his inordinately long delay in prosecuting the
action, and the defendants have suffered actual prejudice as a result of plaintiff's failure to
prosecute the matter with reasonable due diligence?
Suggested Answer: Yes.
III. ARGUMENT
The present Motion is filed pursuant to Pennsylvania Rule of Civil Procedure 1037(c),
which states: "In all cases, the court, on motion of a party, may enter an appropriate judgment
against a party, upon default or admissions." A motion for a judgment of non pros serves as the
means by which a litigant "asserts his or her COmmon law right to a reasonably prompt
conclusion to a case." Shope v. Eagle, 551 Pa. 360,710 A.2d 1104 (Pa. 1998). Pennsylvania
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Courts have consistently held that the grant of judgment of non pros due to failure of a plaintiff
to prosecute his action within a reasonable time rests within the discretion of the trial court and
will not be disturbed absent an abuse of discretion. Gallagher v. Jewish Hospital Association of
Philadelphia, 425 Pa. 112,732 A.2d 735 (Pa. 1967). The grant of non pros was traditionally
based upon the principle of laches, which does not involve the passage of a specific amount of
time. Jacobs v. Halloran, 551 Pa. 350,710 A.2d 1098 (Pa. 1998). The modern judgment of non
pros is codified in Pennsylvania Rule of Civil Procedure 1037(c).
The Pennsylvania Supreme Court has established a three-part rule for the granting of a
judgment of non pros under Section 1037(c). The Supreme Court stated that a case may be
dismissed for inactivity pursuant to a defendant's motion for non pros when (1) there is a lack of
due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude, (2)
the plaintiff has shown no compelling reason for the delay, and (3) the delay has caused actual
prejudice to the defendant. Jacobs, 551 Pa. 350, 710 A.2d 1098 (Pa. 1998). The Pennsylvania
Supreme Court examined the second prong of the rule in Marino v. Hackman, 551 Pa. 369,710
A.2d 1108 (Pa. 1998). In that case, the Court held that when determining whether plaintiffs have
set forth a compelling reason for delay of prosecution, courts should examine each case on its
merits. ld. at 374. In addition, the Court held that non-docket activity can be examined in
determining whether a compelling reason exists. ld.
In examining the third prong of the rule, the Pennsylvania Supreme Court recognized that
defendants may be prejudiced by undue delays in litigation, since memories fade, witnesses
disappear, and documents become lost or destroyed, and because "pending lawsuits often cause
undue stress and anxiety." 551 Pa. 350,357. The Court noted that prejudice can be established
by the death or absence of a material witness. ld. at 359. The Pennsylvania Superior Court has
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expanded upon the ruling, defining prejudice as "any substantial diminution of a party's ability
to properly present its case at tria!." Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.
Super 445, 451, 520 A.2d 891, 894 (Pa.Super. 1987).
In the present case, it is clear that a judgment of non pros is reasonable and appropriate,
as all three prongs of the test set forth by the Pennsylvania Supreme Court in Jacobs have been
met. First, there is an obvious lack of due diligence on the part of the plaintiff. Plaintiff has
allowed almost four (4) years to elapse since they first commenced this action without even
filing a Complaint. See copy of the Court's docket in this matter, attached hereto and marked as
Exhibit "D." More significantly, over eight (8) years have passed since the incident giving rise
to plaintiff's complaint. Plaintiff's last docket activity was in October of 2004, when plaintiff
filed a Statement of Intention to proceed. See Court's Docket, attached hereto as Exhibit "D."
Prior to that date, plaintiffs' last docket activity occurred in December of 2000, when plaintiff
commenced the action by filing a Praecipe for Writ of Summons. See copy of the Court's docket
in this matter, attached hereto and marked as Exhibit "D." No Complaint has been filed, no
discovery has been exchanged and no depositions have occurred. Plaintiff has offered no
compelling reason for this inordinately long delay in pursuing this matter.
Finally, this inordinately long delay has caused actual prejudice to the defendants. Here,
there has been a lapse of more than eight (8) years from the date of the incident giving rise to
plaintiff's Complaint, and a lapse of more than four (4) years since plaintiff filed his Writ of
Summons. The passing of almost eight (8) years since the incident, coupled with the fact that no
depositions have been taken, creates actual prejudice to the defendants in this matter, since the
memories of witnesses have faded. Even if depositions were presently taken, or this matter went
to trial, it is probable that the witnesses would have difficulty recalling the relevant facts and
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events since the incident occurred so long ago and the primary actors were teenagers at the time,
Moreover, relevant evidence is likely to be substantially changed or be unavailable for accurate
examination and analysis. All of these facts would make it very difficult for the defendant to
properly present a defense in this case.
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IV. CONCLUSION
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This Honorable Court should grant the instant Motion for Judgment of Non Pros of the
defendants because more than eight (8) years have passed since the incident that gave rise to
plaintiff's Complaint, more than four (4) years have passed since the plaintiffs commenced this
action, and plaintiffs have offered no compelling reason for their inordinately long delay in
prosecuting this action. Plaintiff has failed to so much as file a Complaint in this matter, despite
the fact that a Rule to File Complaint was entered by the Prothonotary on January 12,2001, and
the fact that more than four (4) years have lapsed since plaintiff commenced this action. The
moving defendants have suffered actual prejudice as a result of plaintiff's failure to prosecute
this matter with reasonable due diligence, since the memories of witnesses have faded over the
years and relevant evidence is likely to be substantially changed or be unavailable for accurate
examination and analysis. The delay by plaintiffs has caused a significant diminution in the
defendant's ability to properly defend this case at trial. Moreover, plaintiff clearly violated the
Order of this Court dated May 19,2005, by failing to file an answer to the instant Motion within
21 days of the Order, as set forth in the Rule issued upon plaintiff.
. WHEREFORE, as there has been an unexplained, undue delay with prejudicial impact,
the defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston, respectfully
request that this Honorable Court grant the Motion for Judgment of Non Pros and dismiss
plaintiffs' complaint with prejudice.
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Respectfully Submitted,
JOHN GERARD DEVLIN & ASSOCIATES, r.c.
BY:
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John Gerard Devlin, Esquire
Michael S. McCarter, Esquire
Attorneys for Defendants
Anthony r. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston
Dated: July 29, 2005
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JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire and Michael S. McCarter, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
CERTIFICATION OF SERVICE
I, John Gerard Devlin, Esquire, counsel for defendants, Anthony P. Beaston, Jeffrey M.
Beaston and Michelle A. Beaston, hereby certifies that on July 29, 2005, he mailed by First Class
Mail, postage prepaid a true and correct copy of the Brief in Support of Motion for Judgment of
Non Pros of Defendants to all interested parties as listed below:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
Attorney for Plaintiff
IN & ASSOCIATES, P.c.
BY:
JOH RARD DEVLIN, ESQUIRE
Counsel for Defendants
Anthony P. Beaston, Jeffrey M. Beaston
and Michelle A. Beaston
Dated: July 29, 2005
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MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V ANlA
v.
CIVIL ACTION - LAW
.
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON,
Defendants
NO. 00.8410 CIVIL TERM
ORDER OF COURT
.
AND NOW, this 19th day of May, 2005, upon consideration of the Motion for
Judgment of Non Pros of Defendants, Anthony P. Beaston, Jeffrey M. Beaston and
.
Michelle A. Beaston, it is ordered that:
I. A Rule is issued upon Plaintiff to show cause why Defendants are not entitled
to the relief requested;
.
2.
order;
. 3.
Plaintiff shall file an answer to the motion within 21 days of the date of this
The petition shall be decided under Pa. R.C.P. 206.7;
4. Depositions shall be completed within 49 days of the date of this order;
5. Argument shall be held on Monday, August 8, 2005, at 1:30 p.m., in Courtroom
.
No. I, Cumberland County Courthouse, Carlisle, Pennsylvania.
6. Briefs shall be submitted at least seven days prior to argument.
.
7. The Memorandum of Law attached to Defendants' motion is hereby stricken
from the record. See Cumulus Broadcasting, Inc., Trading and Doing Business as
WNNK-FM 104 v. Bruce Bond, Matthew Raback, a/k!a "Stretch" and Citadel
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Communications Corporation, tld/bla Citadel Broadcasting Company, tla WRKZ-FM
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102.3,52 Cumberland L.J. 108 (2003) (Oler, J., January 14, 2003).
BY THE COURT,
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Kent H. Patterson, Esq.
221 Pine Street
Harrisburg, PA 17101
Attorney for Plaintiff
.
~Ohn erard Devlin, Esq.
15 Market Street
uite 2010
Philadelphia, PA 19102
Attorney for Defendants
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MEiLIFE ~UTC & HOME ;~~:~1?n1C~1~6
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! 1. HOOPY :NSUR~N$ PHONE NO. : G578197
Dee 292000 11:09 P.02
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D~c. 28 2000 136:: 7>i1"\ PI
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MICRAEL r,. DALLMEYEi.
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( lINTHONY P. llEASTON. and"
~FFREY M. BEASTON and
M~ELLE A. BEASTON
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IN THE COURT OF COMHON PLEAS
OF CUMBERLAND COUNTY
NO, 00- .'110
CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
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PRAECIPE FO~ A WRIT ~F SUMM~NS
Please ~ssue a Writ of Summons in the case ~eferred to above
against Defendants and forward the Writ of summons to the Sheriff
for ,service.
.
The address of the Plaintiff is 606 Belle Vieta Dri~e.
Eno1a, PA 17025.
The address of the Defendants is 13' Sherwood Circle'. Enola.
I'A 17025.
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Kent H. Patterson
221 Pine Street
Harrisburg. PA 17101
(717):138-4100 ...
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A~corney tor ,~la~nc~![
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WRIT OJ' SlJMMONS
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'1:0 THE ABOVE NAMED DEFENDANTS:
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YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLA7NTIFF HAS COMMENCED AN
ACTION AGAINST YOU,
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, Date,
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'71"JA1C;:-::i!1~C.
PAGE,133
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JOHN GERARD DEVLIN & ASSOCIATES, p.e.
BY: JOHN GERARD DEVLIN. ESQUIRE
J.D. #32858
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445- I 8884-JGD/p
MICHAEL L. DALLMEYER
v,
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A, BEASTON
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
: NO. 00-8410
~~
: JURY TRlAL DEMANDED
PRAECIPE TO FILE COMPLAINT
TO THE PROTIIONOTARY:
Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or
suffer the entry of a Judgment of Non Pros.
BY:
RULE TO FILE COMPLAINT
AND NOW, this /~y of J~ ,2001, a Rule is hereby granted upon plaintiff to
me a Complaint herein within twenty (20) days after service hereof or suffer the entry of a
Judgment of Non Pros.
(L-b) ? ~
Prothonotary
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CUIT~erlan~ County Prothonccary's Cffice
C.l ~"il Case Print
Pe,ge
2000-084:0 DALLMEYSR MIC{AEL L (vs) BEASTON FJ~THOWI P ET F~
Reference No, .:
Case TYPe.....: WRIT OF SUMMONS
Judgmenc......: ,00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
12/04/2000
4:04
0/00/0000
0/00/0000
Filed...,....:
Time....,.. . . :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
*******************************************~************************************
General Index Attorney Info
DALLMEYER MICHAEL L PLAINTIFF PATTERSON KENT H
I 606 BELLE VISTA DRIVE
ENOLA PA 17025
BEASTON ANTHONY P DEFENDANT
13 SHERWOOD CIRCLE
ENOLA PA 17025
I
BEASTON JEFFREY M
. 13 SHERWOOD CIRCLE
ENOL1\. PA 17025
BEASTON MICHELLE A
13 SHERWOOD CIRCLE
ENOL1\. PA 17025
DEFENDANT
DEFENDANT
********************************************************************************
. * Date Entries *
********************************************************************************
12/04/2000
12/26/2000
.
12/26/2000
. L2/26/2000
1/12/2001
1/12/2001
. 1/12/2001
,0/26/2004
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - . - . - - - -
PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
-----------------------~-------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTON ANTHONY P
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs,...: $37.30 pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTQN JEFFREY M
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs",.: $16,00 Pd By: KENT PATTERSON 12/26/2000
--------------------------------------------------------------~----
SHERIFF'S RETURN FILED
Litigant.: BE~STON MICHELLE A
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs....: $16.00 Pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
ENTRY OF APPEARANCE FOR DEFTS BY JOHN GERARD DEVLIN ESQ
-------------------------------------------------------------------
PRAECIPE FOR RULE TO FILE COMPLAINT - BY JOHN GERARD DEVLIN ESQ
-------------------------------------------------------------------
RULE TO FILE COMPLAINT - B~ CURTIS R LONG PROTHONOTARY
---------------------------------------------------------~---------
STATEMENT OF INTENTION TO PROCEED - BY KENT H PATTERSON ESQ FOR
PLFF
. - - - - - - - - - - 7 - - LAST ENTRY - - - - - -
~*******************************************************************************
Escrow Information *
. ' Fees & Debits Beo Bal Pvmts/Ad"i End Bal *
~****************************************~******~*******************************
WRIT OF SUMMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
.
35.00
,50
5.00
5.00
35.00
.50
5.00
5.00
.00
.00
,00
.00
45.50
.00
45.50
*****************************************************************.**************
End of Case Information *
.*******************************************************************************
.
DALLMEYER MICHAEL L
vs
BEASTON ANTHONY P ET AL
To the Court:
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In The Court of Common Pleas of
Cumberland County, Pennsylvania
FileNo.
2000-08410
STATEMENT OF INTENTION TO PROCEED
Plaintiff Michael Dallmeyer intends to proceed with the above captioned matter.
Date:
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Attorney for Dl..; n t; ff
Kent H. Patterson
221 pine Street
Harrisburg, PA 17101
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MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
ANTHONY p, BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON,
Defendants
NO. 00-8410 CIVIL TERM
ORDER OF COURT
AND NOW, this 19th day of May, 2005, upon consideration of the Motion for
Judgment of Non Pros of Defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, it is ordered that:
I, A Rule is issued upon Plaintiff to show cause why Defendants are not entitled
to the relief requested;
2. Plaintiff shall file an answer to the motion within 21 days of the date of this
order;
3. The petition shall be decided under Pa. R.C.P. 206.7;
4, Depositions shall be completed within 49 days of the date of this order;
5. Argument shall be held on Monday, August 8, 2005, at 1:30 p.m., in courtroom' fi"
No.1, Cumberland County Courthouse, Carlisle, Pennsylvania.
6. Briefs shall be submitted at least seven days prior to argument.
"."
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7. The Memorandum of Law attached to Defendants' motion is hereby stricken
from the record. See Cumulus Broadcasting, Inc., Trading and Doing Business as
WNNK-FM 104 v. Bruce Bond, Matthew Raback, a/kla "Stretch" and Citadel
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Communications Corporation, tld/bla Citadel Broadcasting Company, tla WRKZ-FM
102.3, 52 Cumberland L.J. 108 (2003) (Oler, J., January 14,2003).
~nt H. Patterson, Esq.
221 Pine Street
Harrisburg, PA 17101
Attorney for Plaintiff
L;J'6hn Gerard Devlin, Esq.
1515 Market Street
Suite 2010
Philadelphia, P A 19102
Attorney for Defendants
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BY THE COURT,
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JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 068-19299-JGD/p
RECEIVED MAY 17 2\f
MICHAEL L. DALLMEYER
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
V.
: NO. 00-8410
ANTHONY p, BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
: JURY TRIAL DEMANDED
ORDER
AND NOW this
day of
, 2005, upon
consideration of the Petition for Judgment of Non Pros of the Defendants, Anthony P. Beaston,
Jeffrey M. Beaston and Michelle A. Beaston, and the plaintiff's answers thereto, it is hereby
ORDERED and DECREED that that the defendants' motion is granted and all counts of the
plaintiff's Complaint are dismissed with prejudice.
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JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A, BEASTON
JURY TRIAL DEMNADED
MOTION FOR JUDGMENT OF NON PROS OF DEFENDANTS, ANTHONY P.
BEASTON, JEFFREY M. BEASTON and MICHELLE A. BEASTON
The defendants, Anthony P. Beaston, Jeffrey M. Beaston, and Michelle A. Beaston, by
and through their attorneys, John Gerard Devlin & Associates, P.C, hereby move this Honorable
Court for a Judgment of Non Pros and aver as follows in support thereof:
1. The plaintiff commenced the present action by filing a Praecipe for a Writ of Summons
on December 4, 2000. A copy of the Writ is attached hereto and marked as Exhibit "A."
2. The defendants filed a Praecipe for Rule to File Complaint on January 12, 2001. A copy
of the Rule is attached hereto as Exhibit "B."
3. Despite the fact that a Rule to File Complaint was entered by the Prothonotary on January
12,2001, and the fact that more than four (4) years have lapsed since plaintiff commenced this
action, plaintiff has failed to file a Complaint. See Court's Docket, attached hereto as Exhibit
"C."
4, More than four (4) years have lapsed since plaintiff commenced this action and more than
eight (8) years have passed since the incident giving rise to plaintiff's cause of action.
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4. This Motion is filed pursuant to Pennsylvania Rules of Civil Procedure 1037(c), which
states: "In all cases, the court, on motion of a party, may enter an appropriate judgment against a
party, upon default or admissions!'
5. It is well established that a Judgment of Non Pros is properly entered when a plaintiff has
shown lack of due diligence by failing to prosecute the civil action with reasonable promptness,
when there has been no compelling reason for the delay, and when the delay has caused
prejudice to the adverse party. See Jacobs v. Halloran, 551 Pa. 350,710 A.2d 1098 (Pa. 1998).
6. The defendants in this case have suffered actual prejudice as a result of plaintiff's failure
to prosecute this matter with reasonable due diligence, since the memories of witnesses have
likely faded over the years.
7. Plaintiffs' delay has caused a significant diminution in the defendant's ability to properly
defend this case at trial.
WHEREFORE, the defendants, Anthony P. Beaston, Jeffrey M. Beaston, and Michelle A.
Beaston, respectfully request this Honorable Court grant the Petition for Judgment of Non Pros
and dismiss plaintiffs' complaint with prejudice.
Respectfully Submitted,
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY:
"~~
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JOHN GERARD DEVLIN & ASSOCIATES, P.e.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
NO. 00.8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR JUDGMENT OF NON PROS OF DEFENDANTS,
ANTHONY P. BEASTON, JEFFREY M. BEASTON and MICHELLE A. BEASTON
A motion for a judgment of non pros serves as the means by which a litigant "asserts his
or her common law right to a reasonably prompt conclusion to a case." Shope v, Eagle, 551 Pa.
360,710 A.2d 1104 (Pa. 1998). Pennsylvania Courts have consistently held that the grant of
judgment of non pros due to failure of a plaintiff to prosecute his action within a reasonable time
rests within the discretion of the trial court and will not be disturbed absent an abuse of
discretion. Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112,732 A.2d 735
(Pa. 1967). The grant of non pros was traditionally based upon the principle of laches, which
does not involve the passage of a specific amount of time. Jacobs v. Halloran, 551 Pa. 350,710
A.2d 1098 (Pa. 1998). The modern judgment of non pros is codified in Pennsylvania Rule of
Civil Procedure 1037(c), which states: "In all cases, the court, on motion of a party, may enter an
appropriate judgment against a party upon default or admission."
The Pennsylvania Supreme Court has established a three part rule for the granting of a
judgment of non pros under Section 1037(c). The Supreme Court stated that a case may be
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dismissed for inactivity pursuant to a defendant's motion for non pros when (1) there is a lack of
due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude, (2)
the plaintiff has shown no cOmpelling reason for the delay, and (3) the delay has caused actual
prejudice to the defendant. Jacobs v, Halloran, 551 Pa. 350, 710 A.2d 1098 (Pa. 1998). The
Pennsylvania Supreme Court examined the second prong of the rule in Marino v, Hackman, 551
Pa. 369,710 A.2d 1108 (Pa. 1998). In that case, the Court held that when determining whether
plaintiffs have set forth a compelling reason for delay of prosecution, courts should examine
each case on its merits. Id. at 374. In addition, the Court held that non-docket activity can be
examined in determining whether a compelling reason exists, Id.
In examining the third prong of the rule, the Pennsylvania Supreme Court recognized that
defendants may be prejudiced by undue delays in litigation, since memories fade, witnesses
disappear, and documents become lost or destroyed, and because "pending lawsuits often cause
undue stress and anxiety." 551 Pa. 350, 357. The Court noted that prejudice can be established
by the death or absence of a material witness. Id. at 359. The Pennsylvania Superior Court has
gone further, defining prejudice as "any substantial diminution of a party's ability to properly
present its case at trial." Metz Contracting. Inc. v. Riverwood Builders. Inc., 360 Pa. Super 445,
451,520 A.2d 891, 894 (Pa.Super. 1987).
In the present case, it is clear that a judgment of non pros is reasonable and appropriate,
as all three prongs of the test set forth by the Pennsylvania Supreme Court in Jacobs have been
met. First, there is an obvious lack of due diligence on the part of the plaintiff. Plaintiff has
allowed almost four (4) years to elapse since they first commenced this action without even
filing a Complaint. See copy of the Court's docket in this matter, attached hereto and marked as
Exhibit "c." More significantly, over eight (8) years have passed since the incident giving rise
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to plaintiff's complaint. Plaintiff's last docket activity was in October of 2004, when plaintiff
filed a Statement of Intention to proceed. See Court's Docket, attached hereto as Exhibit "C."
Prior to that date, plaintiffs' last docket activity occurred in December of 2000, when plaintiff
commenced the action by filing a Praecipe for Writ of Summons. See copy of the Court's docket
in this matter, attached hereto and marked as Exhibit "C." No Complaint has been filed, no
discovery has been exchanged and no depositions have occurred. Plaintiff has offered no
compelling reason for this inordinately long delay in pursuing this matter.
Finally, this inordinately long delay has caused actual prejudice to the defendants. Here,
there has been a lapse of more than four (4) years from the date of the incident giving rise to
plaintiff's Complaint, and a lapse of more than seven (7) years since plaintiff filed his complaint.
The passing of almost ten years, coupled with the fact that no depositions have been taken,
creates actual prejudice to the defendants in this matter. The defendants have been prejudiced
because over a period of eight (8) years, the memories of witnesses have faded and no
depositions were ever taken. Even if depositions were presently taken, or this matter went to
trial, it is probable that the witnesses would have difficulty recalling the relevant facts and events
since the incident occurred so long ago and the primary actors were teenagers at the time. All of
these facts would make it very difficult for the defendant to properly present a defense in this
case.
WHEREFORE, as there has been an unexplained, undue delay with prejudicial impact,
the defendants, Anthony P. Beaston, Jeffrey M. Beaston, and Michelle A. Beaston, respectfully
request this Honorable Court grant the Petition for Judgment of Non Pros and dismiss plaintiff's
complaint with prejudice.
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Respectfully Submitted,
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY:
Jo rard Devlin, Esquire
orney for Defendants
.
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VERIFICATION
I, John Gerard Devlin, Esquire, being duly sworn according to law, hereby depose and say
that I am the attorney for defendants, Anthony P. Beaston, Jeffrey M, Beaston, and Michelle A.
Beaston, in this matter and that the facts contained in the foregoing Motion for Judgment of Non
Pros are true and correct to the best of my knowledge, information and belief, This Verification
is made subject to the penalties of 18 Pa.C.S, Section 4904, relating to unsworn falsification to
authorities.
Dated: May 6, 2005
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JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
NO. 00-8410
ANTHONY p, BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
CERTIFICATION OF SERVICE
I hereby certify that on this fJ.- day of May, 2005, a copy of the foregoing Petition of
Defendants for Judgment of Non Pros and accompanying Memorandum of Law in Support
Thereof were served by regular first class mail, postage pre-paid, on the following:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
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IN THE COURT OF COMHON PLEAS
OF CUMBERLAND COtlNTy
NO. 00- ~'fIO
CIVIL TERM
CIVIL ACTION - LAW
~U~y ~RIAL DeMANDED
PRAECIPE FOR A WRIT OF SUMMONS
. ",,,,
Please issue a Writ of Summons in the ease referred to above
against Oefendants and forward the Writ of Summons to the Sheriff
for .serv.i.ce.
The addreGs of the Plaintiff is G06 Belle Vista Driye,
Enola, PA 17025.
The address of the Defendants is 13 Sherwood Circle. Enola.
PA 17025,
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221 Pine Street
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WRIT OF SUMMONS
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TO THE ABOVE NAMED DEFENDANTS:
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PL"IN'l'IFF HAS COMMENCED ~
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DEe 29 2000 11:27
3174153136
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JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY: JOHN GERARD DEVLIN, ESQUIRE
I.D. #32858
I 515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
V.
ANTHONY p, BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
TO mE PROTHONOTARY:
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
: NO, 00-8410
: JURY TRIAL DEMANDED
PRAECIPE TO FILE COMPLAINT-
.i"....:
Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or
suffer the entry of a Judgment of Non Pros.
DEVLIN & ASSOCIATES, P.C.
BY:
RULE TO FILE COMPLAINT
AND NOW, this I~y of J~ ,2001, a Rule is hereby granted upon plaintiff to
file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a
Judgment of Non Pros.
Prothonotary
TRUE COpy FROM RECORD
In jegtlmoi'lY WMl"I$(~, ! 1~1Ei unto sei ~ illOO
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2000:08410 DALLMEYER MICHAEL L (VS) BEASTON ANTHONY P ET AL
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Cumberland County Prothonotary's Office
Civil Case Print
1
Page
Reference No. . :
Case Type.....: WRIT OF SUMMONS
Judgment....,.: .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
12/04/2000
4:04
0/00/0000
0/00/0000
Filed..,.....:
Time........, :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1,:
Higher Crt 2,:
*******************************************~*****-*******************************
General Index Attorney Info
DALLMEYER MICHAEL L PLAINTIFF PATTERSON KENT H
606 BELLE VISTA DRIVE
ENOLA PA 17025
BEASTON ANTHONY P DEFENDANT
13 SHERWOOD CIRCLE
ENOLA PA 17025
BEASTON JEFFREY M DEFENDANT
13 SHERWOOD CIRCLE
ENOLA PA 17025
BEASTON MICHELLE A
13 SHERWOOD CIRCLE
ENOLA PA 17025
DEFENDANT
********************************************************************************
* Date Entries *
********************************************************************************
12/04/2000
12/26/2000
12/26/2000
12/26/2000
1/12/2001
1/12/2001
1/12/2001
10/26/2004
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
-----~-------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTON ANTHONY P
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs....: $37,30 Pd By: KENT PATTERSON 12/26/2000
-----------~-------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant,: BEASTON JEFFREY M
SERVED' : 12/21/00 ENOLA PA WRIT OF SUMM
Costs.. ..: $16.00 Pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTON MICHELLE A
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs. ...: $16.00 Pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
ENTRY OF APPEARANCE FOR DEFTS BY JOHN GERARD DEVLIN ESQ
-------------------------------------------------------------------
PRAECIPE FOR RULE TO FILE COMPLAINT - BY JOHN GERARD DEVLIN ESQ
-------------------------------------------------------------------
RULE TO FILE COMPLAINT - BY CURTIS R LONG PROTHONOTARY
-------------------------------------------------------------------
STATEMENT OF INTENTION TO PROCEED - BY KENT H PATTERSON ESQ FOR
PLFF
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
*****~**************************************************************************
* Escrow Information *
* Fees & Debits Beo Bal Pvmts/Adi End Bal *
************************************************~*******************************
35.00
.50
5.00
5,00
.00
.00
,00
.00
WRIT OF SUMMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
35.00
.50
5.00
5.00
45.50
45.50
.00
*****~**************************************************************************
* End of Case Information *
********************************************************************************
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BY: JOHN GERARD DEVLIN, ESQUIRE
LD. #32858
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L DALLMEYER
v.
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
TO THE PROTHONOTARY:
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
: NO. 00-8410
: WRY TRIAL DEMANDED
ENTRY OF APPEARANCE
Kindly enter my appearance as counsel for Defendants, Anthony P. Beaston, JeftTey M. Beaston
and Michelle A. Beaston, in the above captioned matter.
DATED: January 8, 2001
BY:
John Gerard Devlin, Esquire
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BY: JOHN GERARD DEVLIN, ESQUIRE
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1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
NITCHAELL.DALLMEYER
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
V.
: NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
NITCHELLE A. BEASTON
: JURY TRIAL DEMANDED
DEMAND AND PERFECTION OF DEMAND FOR JURY TRIAL
TO THE PROTHONOTARY:
Answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston, hereby
demand a trial by jury by 12 individual men and women, and hereby perfect their demand for jury trial by
the payment of the jury trial fee.
& ASSOCIATES, P.C.
BY:
EVLIN, ESQUIRE
Dated: January 8, 200 I
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BY: JOHN GERARD DEVLIN, ESQUIRE
l.D, #32858
1515 Market Street, Suite 2010
Philadelphia, P A 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
NUCHAELL.DALLMEYER
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
v.
: NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
NUCHELLE A. BEASTON
: JURY TRIAL DEMANDED
PRAECIPE TO FILE COMPLAINT
TO THE PROTHONOTARY:
Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or
suffer the entry of a Judgment of Non Pros.
BY:
DEVLIN & ASSOCIATES, P.C.
RULE TO FILE COMPLAINT
AND NOW, this/~aYOf J~ ,2001, a Rule is hereby granted upon plaintiff to
file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a
Judgment of Non Pros.
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-08410 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
,DALLMEYER MICHAEL L
VS
BEASTON ANTHONY P ET AL
DAVID MCKINNEY
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
BEASTON ANTHONY P
the
DEFENDANT
, at 1442:00 HOURS, on the 21st day of December, 2000
at 13 SHERWOOD CIRCLE
ENOLA, PA 17025
by handing to
ANTHONY BEASTON
a true and attested copy of WRIT OF SUMMONS
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
9.30
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10,00
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37.30
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R. Thomas Kline
12/26/2000
KENT PATTERSON
Sworn and Subscribed to before
By:
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me this 3~ day of
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SHERIFF'S RETURN - REGULAR
,.,.
CASE NO: 2000-08410 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DALLMEYER MICHAEL L
VS
BEASTON ANTHONY P ET AL
DAVID MCKINNEY
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
BEASTON JEFFREY M
the
DEFENDANT
, at 1442:00 HOURS, on the 21st day of December, 2000
at 13 SHERWOOD CIRCLE
ENOLA, PA 17025
by handing to
ANTHONY BEASTON, ADULT IN
CHARGE
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So
Answers:
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6.00
.00
.00
10.00
.00
16.00
R. Thomas Kline
12/26/2000
KENT PATTERSON
Sworn and Subscribed to before
By:
Y;4~/~j(~
- Deputy Sheriff
me this JAAl day of
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SHERIFF'S RETURN - REGULAR
,
CASE NO: 2000-08410 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DALLMEYER MICHAEL L
VS
BEASTON ANTHONY P ET AL
DAVID MCKINNEY
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
BEASTON MICHELLE A
the
DEFENDANT
, at 1442:00 HOURS, on the 21st day of December, 2000
at 13 SHERWOOD CIRCLE
ENOLA, PA 17025
by handing to
ANTHONY BEASTON, ADULT IN
CHARGE
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing His attention to the contents thereof,
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.00
10.00
.00
16.00
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R. Thomas Kline
12/26/2000
KENT PATTERSON
Sworn and Subscribed to before
By:
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me this 3M! day of
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MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
v.
NO. 00- 'ii'ff 0
CIVIL TERM
ANTHONY P. BEASTON, and
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE FOR A WRIT OF SUMMONS
Please issue a Writ of Summons in the case referred to above
against Defendants and forward the Writ of Summons to the Sheriff
for service.
The address of the Plaintiff is 606 Belle Vista Drive,
Enola, PA 17025.
The address of the Defendants is 13 Sherwood Circle, Enola,
PA 17025.
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Kent H. Patterson
221 Pine Street
Harrisburg, PA 17101
(717)238-4100
Attorney for Plaintiff
Date: ~k-..1,}.ClClcJ
WRIT OF SUMMONS
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN
ACTION AGAINST YOU.
CuA2-d I?,p~ "'~"
Prothonotary , I
Date: lit.no..ln. 't 0!.()-tJv
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by Q'I'.L- () ~,tlPu
Deputy
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DEVLIN ASSOCIATES, P.C.
COUNSELORS AT LAW
NORTHEASTERN PENNSfiVANIA
Cross Creek Pointe
1065 Highway 315, SuiteH
Wilkes Barre, PA 18702
(610) 820-6422
Fax (610) 433-3090
CENTRALPENNSfiVANIA
100 Pine Street, Suite 260
Harrisburg, PA 17101
(717) 720-0700
Fax (717) 236-9080
1515 Market Street, Suite 2010
Philadelphia, PA 19102
NORTHERN NEW JERSEY
197 Route 18, Suite 3000
East Brunswick, NJ 08816
(732) 214-2621
Fax (732) 246-2917
(215) 564-6740
Fax (215) 564-<;732
E-mail: dev1iulaw@aol.com
Web Site: www.devlinlaw.com
SOUTHERN NEW JERSEY
216 Hadd... Avenue, Suite 103
W_NJ08108
(856) 858-1690
Fax (856) 858-8998
July 29, 2005
EASTERN PENNSnVANIA
The Sovereign Building
609 HamiIron Mall. Suite 103
Alleutown, PA 18101
(610) 820-6422
Fax (215) 564-6732
RE:
Dallmeyer v. Beaston
Our File Number
Docket Number
: 445-18884-JGDlp
: 00-8410
Prothonotary
Cumberland County Courthouse
I Courthouse Square
Carlisle, P A 17013-3387
Dear Sir/Madam:
Enclosed please find an original and one copy of Defendants' Brief in Support of Motion
for Judgment of Non Pros in the above captioned matter. The Briefs are submitted in
anticipation of argument of the Motion, which is scheduled to occur before Judge Oler on August
8, 2005, at 1 :30 p.m.
Please file the original and return the time-stamped copy in the enclosed self-addressed stamped
envelope.
Thank you for your kind courtesy and cooperation.
Very truly yours,
JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY: ~ <; t--~.
Mi hael S. McCarter, Esquire
MSM/lp
Enclosure
cc: Kent H. Patterson, Esquire
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MICHAEL L. DALLMEYER
RECEIVED AUG 02 2005
U
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
: JURY TRIAL DEMANDED
ORDER
AND NOW this
day of
, 2005, upon
consideration of the Motion for Judgment of Non Pros of the Defendants, Anthony P. Beaston,
Jeffrey M. Beaston and Michelle A. Beaston, and the failure of plaintiff to file an response, it is
hereby ORDERED and DECREED that that the defendants' motion is granted and all counts of
the plaintiff's Complaint are dismissed with prejudice.
J.
.,.
MICHAEL L. DALLMEYER, : IN THE COURT OF COMMON PLEAS
Plaintiff . OF CUMBERLAND COUNTY
.
:
v. NO.00-8410 CIVIL TERM
:
ANTHONY P. BEASTON and . CIVIL ACTION - LAW
.
JEFFREY M. BEASTON and :
MICHELLE A. BEASTON, .
.
Defendants . JURY TRIAL DEMANDED
.
ANSWER WITH NEW MATTER
AND NOW comes plaintiff, Michael L. Da11meyer, by his
attorney, Kent H. Patterson, and files this answer with new
matter to defendants' motion for judgment of non pros, as
follows:
1. Admitted.
2. Admitted.
3. It is admitted that defendants filed a praecipe for
rule to file complaint and that a complaint was not filed but it
is denied that plaintiff or plaintiff's attorney was served with
a rule to file complaint.
4. Admitted. By way of further answer, plaintiff was a
minor, age 15, at the time the accident occurred which gave rise
to this action and the action did not need to be commenced until
the time of the filing of the praecipe for writ of summons.
5. Admitted. Paragraph 5 does not need to be answered
but it is admitted that the case cited sets forth criteria
concerning the entry of a judgment of non pros.
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6. It is denied the defendants have suffered any actual
prejudice and that plaintiffs have failed to prosecute the
matter with reasonable due diligence. It is denied that
memories of witnesses have faded.
7. It is denied that any delay has caused a significant
diminution in defendants' ability to defend the case.
NEW MATTER
8. Plaintiff incorporates by reference answers 1 through
7 of defendants' motion.
9. This case involves a claim for personal injury that
plaintiff Michael Da11meyer sustained to his left eye when
defendant Anthony Beaston discharged a b.b. gun and the bb
struck plaintiff in the left eye.
10. Since the filing of the action, plaintiff, through his
attorney, has had numerous discussions and settlement
discussions with the insurance carrier for defendants.
11. Plaintiff, through his attorney, has provided
defendants' insurance carrier with statements of the claim, all
medical records, statement of all special damages and medical
reports from physicians. Attached to this answer and new matter
and marked Exhibit A is a copy of a letter from plaintiff's
counsel to the insurance carrier dated December 20, 2002 which
provides a statement of the case to both liability and damages.
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12. Plaintiff did not file a complaint because plaintiff
was having settlement discussions with the insurance carrier and
never received a rule to file the complaint and was never
pressed by the insurance carrier to file a complaint.
13. Plaintiff filed a statement of intention to proceed
with the case on October 26, 2004.
Respectfully submitted,
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tent H. Patterson
Attorney for plaintiff
Michael L. Dal1meyer
221 pine Street
Harrisburg, PA 17101
(717)238-4100
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KENT H. PATTERSON
AT'l'O}~NI<:Y AT LAW
22J PINE H'l'lil.EB'l'
BAHH:ISBURO, PENNS~'LYANIA 17] 01
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(717l23x.4100
December 20, 2002
Cynth~a J. Burnep
Senior Claim Representative
MetLife Auto and Home
Rocky Hill F~eld Claim Office
P.O. Box 529
Rocky Hill, CT 06067-0529
:RE: Michael L. Dallmeyer v. Anthony P. Beaston,
and Jeffrey M. Beaston and Michelle A. Beaston
Your insured: Jeffrey M. Beaston
Date of accident: October 14, 2002
Your Claim No.: 4W003806
Dear Ns. Burnep:
We are now in a position to present this case to you for
settlement. Thank you for your forbearance while we compiled
this settlement information.
Nichael Dal1meyer sustained a serious injury to his left eye
when Anthony Beaston fired a BB gun and shot Michael in the left
eye with a BB. The incident occurred in the afternoon of October
14, 1996 at the home of Jeffrey and M~chelle Beaston who are the
parents of Anthony Beaston. Michael Dallmeyer was age 15 at the
time and in the tenth grade.
The salient facts of the case are not in d~spute. Michael
Da11meyer and a friend by the name of Tom Scrignoli were playing
basketball on a basketball court in the backyard of the Beaston
residence. Anthony got angry for SOJl\e reason, presumably because
he was losing, and went into the house and lockea the door.
Michael and Tom went to the house and knocked on the windows to
try to get Anthony to continue the game.
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Senior Claim Representative
MetLife Auto and Home
December 20, 2002
page two
Anthony came out of the house with a BB gun and started shooting
at both boys. He took aim at them. They ran down to the end of
the lot and tried to hide behind some trees but Anthony kept
shooting. Regrettably, one of the shots hit Michael in the left
eye.
We believe liability is clear.
Michael's eye immediately became blurry and he lost all
vision in the eye. Michael was taken to the Holy Spirit Hospital
and was subsequently treated by John R. Dailey, M.D., an
ophthalmologist. Records and reports from Dr. Dailey indicate
that Michael had an abrasion of the cornea, layered hyphema
(2mm) , significant retinal swelling and red blood cells in the
anterior vitreous cavity. Dr. Dailey also indicated that a
gonioscopy showed that he had approximately four clock hours of
angle recession.
These medical terms in plain English mean that the trauma of
the BB penetrated the outer layer of tissue of the eye and tore
the cornea. The impact was sufficiently severe that it bruised
and caused substantial swelling of the retina which is the inner
layer of tissue around the globe of the eye. The trauma caused
hyphema which is the entry of blood, from tearing or bursting of
small blood vessels, into the anterior chamber which is a chamber
of the eye between the cornea in the front and the iris and lens
at the back that is filled with watery fluid. The presence of
red blood cells in the anterior chamber can block the outflow of
fluid which increases intraocular pressure which can cause
further damage to the eye and glaucoma. A gonioscopy is the use
of a gonioscope w~ich is an instrument that inspects the angle of
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Senior Claim Representative
MetLife Auto and Home
December 20, 2002
page three
the anterior chamber and assesses the intraocular pressure.
Trauma can cause damage to the anterior chamber angle which can
disrupt fluid drainage. The, gonioscopy for Michael revealed an
angle recession which means a distortion of the angle of the
anterior chamber which can impede drainage. Dr. Dailey also
reported blood in the anterior vitreous cavity which is the large
inner cavity of the eye behind the iris and lens which contains a
gel like fluid.
Treatment consisted of topical medications and strict bed
rest. Michael was given Hyoscine and Pred Forte in eye drop
form. He was totally confined to bed for approximately two
weeks, except for doctor visits, and was required to lay on his
back and not move his head. He was not allowed to get out of bed
to go to the bathroom and had to use a bed pan. He was only
permitted to elevate himself to eat. The purpose of this kind of
treatment, as I understand it, was to prevent re-bleeding which
did occur, reduce the intraocular pressure, allow the blood to
drain and to generally give the eye a chance to heal. A shield
was placed over his left eye. After about two weeks he started
to regain some sight in his eye and it was after approximately
one month that he totally regained his sight and was able to
return to school and normal activities. Michael was involved in
athletics at school and was on the varsity basketball team but
missed most of the season because he was unable to participate in
the practices at the beginning of the season.
Fortunately Michael regained his full sight. However, Dr.
Dailey has indicated that since Michael has an angle recession,
he will be predisposed to developing glaucoma. Dr. Dailey has
recommended that Michael wear protective eye gear when playing
sports or other activities which could cause eye injury and that
Michael have an annual eye examination.
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Senior Claim Representative
MetLife Auto and Home
December 20, 2002
page four
The predisposition to developing glaucoma is a serious
matter. There are several types of glaucoma but essentially, as
I
I understand it, glaucoma is g~nera1ly described as increased
intraocular pressure (within th~ eyeball) that causes breakdown
of tissue and in particular optic nerve damage which results in
loss of vision. Glaucoma has b~en compared to an over inflated
basketball which strains the entire inner surface and causes it
to break down. As previously mentioned, Dr. Dailey has indicated
that the angle recession in the interior chamber was caused by
the accident and could at a later time cause glaucoma. There is
no cure for glaucoma and its effects can not be reversed. It is
a progressive disease but its development can be inhibited or
arrested through surgery or medication in many but not all
instances.
Michael also continues to experience "floaters". These are
spots which he sees when he looks into bright sunlight or bright
light indoors. Looking up into the sky or looking at a light
fixture will cause him to see floaters. Michael is now in
college and plays baseball and sees these floaters when he looks
into the sky on a sunny day or when he is playing under lights.
Although not mentioned in Dr. Dailey'S report, he does make
reference to floaters in his office note of January 9, 2001. In
addition, Dr. Dailey'S office notes of 4/8/97 and 4/9/97 indicate
that Michael was having blurred areas in his sight in bright
sunlight and when moving his eyes from left to right. Dr.
Dailey'S office note of 10123/97 indicates that Michael was still
seeing a "flash" when moving his eye left or right.
Although you have most of the medical records, I am
enclosing copies of all medical records, including office notes,
that I obtained from Dr. Dailey in the event that you do not have
some of them. Also enclosed is a copy of Dr. Dailey'S report to
me of May 14, 2001.
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Senior Claim Representative
MetLife Auto and Home
December 20, 2002
page five
Further enclosed is a statement of Mr. Da11meyer's medical
treatment and expenses which total $960.00.
In summary, we have a young man who was age 15, almost 16,
at the time of the accident and is now age 22. He suffered a
very serious eye injury but was fortunately able to regain his
sight. However, the injury produced an angle recession in the
interior chamber which is permanent and will predispose htm to
glaucoma in the future. He should wear protective eye gear
whenever engaging in sports or other activity which could cause
trauma to his eye. He also continues to experience "floatersH.
These are injuries which will have an effect on this young man
for the rest of his life.
Please give me a call after you have had a chance to review
this matter and I will be pleased to further discuss settlement
with you.
Very truly yours,
Kent H. Patterson
KHP/cvf
Enclosures
, ,"
MICHAEL L. DALLMEYER, . IN THE COURT OF COMMON PLEAS
.
Plaintiff OF CUMBERLAND COUNTY
:
v. : NO.00-8410 CIVIL TERM
.
.
ANTHONY P. BEASTON and : CIVIL ACTION - LAW
JEFFREY M. BEASTON and .
.
MICHELLE A. BEASTON, .
.
Defendants . JURY TRIAL DEMANDED
.
CERTIFICATE OF SERVICE
AND NOW, this ~ day of ~ r ' 2005
hereby certify that I this day served the within answer with new
I, Kent H. Patterson,
matter by depositing a copy of same in the United States mail, postage
prepaid, at Harrisburg, Pennsylvania addressed to counsel of record
for defendants as follows and by facsimile number (215)564-6732.
Michael S. McCarter, Esquire
Devlin Associates, P.C.
1515 Market Street
Suite 2010
Philadelphia, PA 19102
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Kent H. Patterson
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Attorney for plaintiff
221 pine Street
Harrisburg, PA 17101
(717) 238-4100
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MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
ANTHONY P. BEASTON and
JEFFREY M. BEASTON and
MICHELLE A. BEASONT,
Defendants
00-8410 CIVIL TERM
ORDER OF COURT
AND NOW, this 8th day of August, 2005, upon
consideration of the Motion for Judgment of Non Pros of Defendants
Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston, and
following a conference held in the chambers of the undersigned
judge in which Plaintiff was represented by Kent H. Patterson,
Esquire, and Defendants were represented by Michael S. McCarter,
Esquire, and pursuant to an agreement of counsel, it is ordered and
directed as follows:
1. The Motion for a Judgment of Non Pros of
Defendants Anthony P. Beaston, Jeffrey M. Beaston and Michelle A.
Beaston is deemed withdrawn;
2. Plaintiff shall file his complaint in this matter
within 30 days of today's date; and
3. within 90 days of the filing of Defendants' answer
and any reply to new matter discovery shall be complete in this
case.
By the Court,
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J. . , J.
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Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
For the Plaintiff
Michael S. McCarter, Esquire
Ste. 2010
1515 Market Street
Phila, PA 19102
For the Defendant
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MICHAEL L. DALLMEYER
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
NO. 00-8410
.
.
:
ANTHONY P. BEASTON, and
JEFFERY M. BEASTON and
MICHELLE A. BEASTON
Defendants
CIVIL ACTION - LAW
:
JURY TRIAL 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 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 defense 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 HA~ A LAWYER OR CANNOT AFFORD ONE, GO TO OR ~ELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013-3387
(717) 240-6200
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NOT I C I A
Le han demandado a usted en la corte. Si usted quiere
deferderse de estas demandas expuestas en 1as paginas siguientes,
usted tiene (20) dias de plaze a1 partir de 1a fecha de 1a demanda
y la notificacion. Usted debe presentar una apariencia escrita 0
en persona 0 por abagado y archivar en 1a corte en forma escrita
sus defensas 0 SUS objeciones alas demandas in contra de su
persona. Sea avisado que si usted no se defiende, 1a corte tomara
medidas y puede entrar una orden contra usted sin previo aviso 0
notificacion y por cualquire queja 0 a1icio que es pedido en 1a
peticion de demanda. Usted puede perder dinero 0 sus propiedades
o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABAGADO INMEDIATAMENTE. SI NO TIENE
ABAGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGER TAL SERVICIO,
VAYA EN PERSONA 0 LLlIME POR TELEFON A LA OFICINA CUYA DIRRECCION SE
ENCUENTRA ESVRITA ABAJO PAPA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013-3387
(717) 240-6200
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MICHAEL L. DALLMEYER, IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY
.
.
v. : NO. 00-8410 CIVIL TERM
ANTHONY P. BEASTON, and CIVIL ACTION - LAW
JEFFREY M. BEASTON and
MICHELLE A. BEASTON :
Defendants . JURY TRIAL DEMANDED
.
COMPLAINT
AND NOW comes plaintiff, Michael L. Dal1meyer, by his
attorney, Kent H. Patterson, and files this complaint as
follows:
1. Plaintiff Michael L. Da11meyer is an adult individual
residing at 606 Belle Vista Drive, East pennsboro Township,
Cumberland County, Pennsylvania (Eno1a, PA 17025).
2. Defendant Anthony P. Beaston is an adult individual
residing at or having a last know address at 13 Sherwood Circle,
East pennsboro Township, Cumberland County, Pennsylvania (Eno1a,
PA 17025).
3. Defendants Jeffrey M. Beaston and Michelle A. Beaston
are adult individuals residing at 13 Sherwood Circle, East
pennsboro Township, Cumberland County, Pennsylvania (Eno1a, PA
17025) .
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4. The events referred to in this complaint occurred on
the premises located at 13 Sherwood Circle, East pennsboro
Township, Cumberland County, Pennsylvania which was the
residence of defendants Jeffrey M. Beaston and Michelle A.
Beaston and their son, defendant Anthony P. Beaston.
5. At all times mentioned in this complaint, defendants
Anthony P. Beaston and Jeffrey M. Beaston were the owners or
possessors of the premises referred to above.
6. At the time of the incident mentioned in this
complaint, plaintiff was a minor, age 15, having been born
December 5, 1980.
7. At the time of the incident mentioned in this
complaint, defendant Anthony P. Beaston was a minor, age 15 or
16.
COUNT I.
MICHAEL L. DALLMEYER v. ANTHONY P. BEASTON
8. On or about October 14, 1996 at approximately 3:00 p.m., at
the invitation of defendant Anthony Beaston, plaintiff,
defendant Anthony Beaston and another young man of the same
approximate age of plaintiff, were playing basketball at 13
Sherwood Circle.
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9. At the aforesaid time and place, defendant Anthony
Beaston beoame upset about his score in the game and/or for
other reasons and went into the house and came out with a BB
rifle.
10. Defendant Anthony Beaston pointed the BB rifle at
plaintiff and the other young man and then began discharging the
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BB rifle and firing it at plaintiff.
11. Plaintiff att~ted to take cover to avoid being
struck by the BBs being discharged from the rifle but a BB
struck plaintiff in the left eye.
12. The injury to plaintiff's left eye was caused by the
negligence and carelessness of defendant Anthony Beaston which
consisted of the following:
A. Shooting or discharging a BB rifle in presence of
plaintiff and others when he knew or should have known that it
would be dangerous to do so.
B. Pointing and/or discharging a BB rifle directed
at plaintiff and others when he knew or should have known that
is was dangerous to do so.
C. Loading and discharging a BB rifle on the
premises in derogation of municipal ordinances and law.
- 3 -
13. As a result of the conduct of defendant Anthony
Beaston, plaintiff sustained injury to his left eye, including
abrasion of cornea and layered hyphema, significant retinal
swelling, red b10qd cells in the anterior vitreous cavity,
temporary loss of sight, predisposition to glaucoma and other
injuries.
14. As a result of the conduct of defendant Anthony
Beaston, plaintiff required medical treatment from physicians
and other health care providers including examinations, x-rays,
medication, gonioscopy, immobization and bed rest and other
treatment.
15. As a result of the conduct of defendant Anthony
Beaston, plaintiff has and will incur medical expenses and will
or may be required to undergo medical treatment in the future.
16. As a result of the conduct of defendant Anthony
Beaston, plaintiff has undergone pain and suffering and shock
and damage to his nervous system in the future.
17. As a result of the conduct of defendant Anthony
Beaston, plaintiff has or will suffer loss of life's pleasures
and enjoyment.
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18. As a result of the conduct of defendant Anthony
Beaston, plaintiff has suffered or may suffer impairment of his
earning power and income.
19. As a result of the conduct of defendant Anthony
Beaston, plaintiff has or will suffer permanent disability to
his person.
WHEREFORE, plaintiff demands judgment against defendant in
an amount in excess of the jurisdictional amount requiring
arbitration referral by local rules of court.
COUNT :I:I.
M:ICHAEL L. DALLMEYER v. ANTHONY P. BEASTON
20. Plaintiff incorporates by reference paragraphs 1
through 11 and paragraphs 13 through 19.
21. The injury to plaintiff's left eye was caused by the
reckless, willful, wanton and/or intentional conduct of
defendant Anthony Beaston which consisted of the following:
A. Reckless disregard for the safety of plaintiff
and others when he knew or should have known that his conduct of
discharging a BB rifle in the presence of plaintiff and others
would produce ha~.
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B. Reckless disregard of the safety of plaintiff and
othe~s when he knew or should have known that his conduct in
discha~ging a BB rifle directed at plaintiff and others would
produce harm.
C. Reckless disregard of the safety of plaintiff and
othe~s when he knew or should have known that his conduct in
loading and discharging a BB rifle directed at plaintiff and
othe~s would produce harm.
D. Assaulting plaintiff by shooting a BB rifle at
plaintiff.
22. Defendant Anthony P. Beaston is liable for punitive
damages as a result of his reckless, willful, wanton and/or
intentional conduct.
WHEREFORE, plaintiff demands judgment against defendant in
an amount in excess of the jurisdictional amount requiring
arbitration referral by local rule of court.
COUNT III.
MICHAEL L. DALLMEYER v. ANTHONY P. BEASTON
JEFFERY M. BEASTON AND MICHELLE A. BEASTON
23. Plaintiff incorporates by reference paragraphs 1
through 22.
- 6 -
24. Defendants Jeffery M. Beaston and Michelle A. Beaston
are liable for the negligence, reckless, willful, wanton and/or
intentional conduct their son, defendant Anthony P. Beaston for
the fOllowing reasons:
A. Defendants made available to defendant Anthony
Beaston or allowed him to have possession and control of the BB
rifle without providing him with appropriate training and
control and/or supervision for its use.
B. Defendants made available to defendant Anthony
Beaston or allowed him to have possession and control of the BB
rifle when they knew or should have known that he was not of
sufficient maturity or temperament to possess, operate and
disCharge such a weapon.
c. Defendants made available to defendant Anthony
Beaston or allowed him to have possession or control of the BB
rifle
when they knew or should have known that he would use the weapon
at times without any supervision or control and would discharge
it at inappropriate times which would cause harm to others.
D. Failed to keep the BB rife and ammunition stored
in safe places where defendant Anthony Beaston would be unable
to gain access and control of the weapon.
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25. The conduct of defendants Jeffrey Beaston and Michelle
Beaston described above was knowing and reckless and renders
them liable for punitive damages.
WHEREFORE, plaintiff demands judgment against defendants in
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an amount in excess of the jurisdictional amount requiring
arbitration referral by local rule of court.
Kent H. Patterson
Attorney for plaintiff
221 pine Street
Harrisburg, PA 17101
(717) 238-4100
- 8 -
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VERIFICATION
I, Michael L. Da11meyer, verify that the statements in
the foregoing complaint are true and correct to the best of
my knowledge, information and belief. I understand that
false statements herein are made subject to penalties of 18
Pa. C.S. 4904 relating to unsworn falsification to
authorities.
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MICHAEL L. VALLMEYER
Plaintiff
IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: No. 00-8410 CIVIL TERM
v.
.
.
CIVIL ACTION - LAW
ANTHONY P. BEASTON, and
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
Defendants
.
.
:
:
: JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this I 7l::- day of ~~Ie..-, 2005 I, Kent H.
Patterson, llereby certify that I this day served the within
complaint by depositing a copy of same in the United States mail,
postage prepaid, at Harrisburg, Pennsylvania, addressed to counsel
of record for defendants as follows:
Michael S. McCarter, Esquire
Devlin Associates, P.C.
1515 Market Street
Suite 2010
Philadelphia, PA 19102
~*~~
~ent H. Patterson
-
Attorney for plaintiff
221 pine Street
Harrisburg, PA 17101
(717) 238-4100
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JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY: John Gerard Devlin, Esquire
ID# 32858
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
devlinlaw@aol.com
Our File No. 445-18884-JGD
To Parties:
You are hereby notified to plead to
the enclosed New Matter within
twenty (20) days from the service
hereof or a default judgment may be
entered ai you.
omey r Defendant ,
Anthony P. Beaston, Jeffrey M.
Beaston and Michelle A. Beaston
MICHAEL 1. DALLMEYER
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
v.
: NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
: JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF DEFENDANTS,
ANTHONY P. BEASTON, JEFFREY M. BEASTON AND MICHELLE A. BEASTON
Defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston, by way of
answer to the Complaint aver as follows:
1. Admitted.
2. Admitted.
3. Admitted.
II
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4. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
5. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of triaL
6. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth ofthe allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of triaL
7. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of triaL
COUNT I - MICHAEL L. DALLMEYER V. ANTHONY P. BEASTON
8. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of triaL
9. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
II
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paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
10. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
11. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
12. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
13. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
14. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
15. Denied. All allegations regarding negligence on the part of answering defendants
I
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are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
16. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
17. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
18. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
19. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their.favor.
COUNT II - MICHAEL L. DALLMEYER V. ANTHONY P. BEASTON
20. Answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A.
I:
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Beaston, incorporate by reference their responses to the allegations contained in paragraphs 1-19
of the Complaint as if same were fully set forth herein at length.
21. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
22. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
COUNT III - MICHAEL L. DALLMEYER V. ANTHONY P. BEASTON,
JEFFREY M. BEASTON AND MICHELLE A. BEASTON
23. Answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A.
Beaston, incorporate by reference their response to the allegations contained in paragraphs 1-22
of the Complaint as if same were fully set forth herein at length.
24. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
25. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
II
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actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
NEW MATTER
26. The claims of the plaintiff are barred and/or limited by the provisions of the
Pennsylvania Comparative Negligence Act, 42 Pa. C.S. Section 7102.
27. If there be ajudicial determination that Pa. RoC.P. 238 is Constitutional, said
Constitutionality being expressly challenged as in violation ofthe Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution, 42 U.S.C.
Section 1983; Article I, Sections I, 6, II, 26; and Article V, Section W(c) of the Pennsylvania
Constitution, then liability for any interest imposed by the Rille should be suspended during the
period of time that plaintiff:
a) fails to convey to the defendants a settlement demand figure;
b) delays in responding to Interrogatories;
c) delays in responding to Request to Produce;
d) delays in producing plaintifffor a deposition;
e) delays in producing plaintiff for a physical examination;
f) delays in any other discovery request made by the defendants, and, as a result of any
delay, the plaintiff should be estopped from obtaining interest because of any violation of the
Discovery Rules.
28. Any damages or injuries which may have been sustained by the plaintiff were the
result of an unavoidable accident insofar as the answering defendants are concerned.
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29. Any injuries or damages allegedly sustained by plaintiff were caused through the
sole negligence of the plaintiff.
30. There was no willfulness involved in any of the events involving the factual basis
upon which this suit has been instituted.
31. The claims of the plaintiff are barred and/or limited by reason of the statute of
limitations, inasmuch as suit was not instituted and service of process was not made within the
applicable limitations period.
32. Negligence, if any, on the part of the answering defendants, was not the proximate
cause of any damages or injuries which may have been sustained by the plaintiff.
33. The Complaint fails to state a claim upon which relief can be granted as against
the answering defendants.
34. The answering defendants were free of any and all negligence.
35. Any damages or injuries which may have been sustained by the plaintiff were
caused through the sole negligence of a third party or parties over whom the answering
defendants exercised no control.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
Respectfully submitted,
DEVLIN & ASSOCIATES, P.C.
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VERIFICATION
I, John Gerard Devlin, Esquire, being du1y sworn according to law, hereby deposes and
says that he is the attorney for defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle
A. Beaston, in the above-captioned matter, that insufficient time exists to secure signature of
defendants to an affidavit, and that the facts contained in the attached Answer and New Matter
are true and correct to the best of my knowledge, information and belief.
/."
, squire
II
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.
-..
CERTIFICATION OF SERVICE
I, John Gerard Devlin, Esquire, counsel for defendant, Anthony P. Beaston, Jeffrey M.
Beaston and Michelle A. Beaston, hereby certifies that on October 19,2005 he mailed by First
Class Mail, postage prepaid a true and correct copy of Answer and New Matter to all interested
parties as listed below:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg,PA 17101
DEVLIN & ASSOCIATES, P.C.
-----
BY:
Dated: October 19,2005
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CERTIFICATION OF SERVICE
I, John Gerard Devlin, Esquire, counsel for defendant, Anthony P. Beaston, Jeffrey M.
Beaston and Michelle A. Beaston, hereby certifies that on October 27,2005 he mailed by First
Class Mail, postage prepaid a true and correct copy of Answer and New Matter to all interested
parties as listed below:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg,PA 17101
JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY:
Gerard D . n, Esquire
Counse or Defendants
Dated: October 27, 2005
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MICHAEL L. DALLMEYER,
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-841.0
v.
: CIVIL ACTION - LAW
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON,
Defendants
.
.
JURY TRIAL DEMANDED
PRAECIPE
To the Prothonotary:
Please enter on the docket that this case has been settled
and is discontinued.
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Kent H. Patterson
221 pine Street
Harrisburg, PA 17101
(717)238-4100
Attorney for plaintiff
Date:
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JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
NO. 00-84]0
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
MOTION FOR JUDGMENT OF NON PROS OF DEFENDANTS, ANTHONY P.
BEASTON, JEFFREY M. BEASTON and MICHELLE A. BEASTON
The defendants, Anthony P. Beaston, Jeffrey M. Beaston, and Michelle A. Beaston, by
and through their attorneys, John Gerard Devlin & Associates, P.c., hereby move this Honorable
Court for a Judgment of Non Pros and aver as follows in support thereof:
1. The plaintiff commenced the present action by filing a Praecipe for a Writ of Summons
on December 4,2000. A copy of the Writ is attached hereto and marked as Exhibit "A."
2. The defendants filed a Praecipe for Rule to File Complaint on January 12, 200\. A copy
of the Rule is attached hereto as Exhibit "B."
3. Despite the fact that a Rule to File Complaint was entered by the Prothonotary on January
12,2001, and the fact that more than four (4) years have lapsed since plaintiff commenced this
action, plaintiff has failed to file a Complaint. See Court's Docket, attached hereto as Exhibit
"C."
4. More than four (4) years have lapsed since plaintiff commenced this action and more than
eight (8) years have passed since the incident giving rise to plaintiff's cause of action.
4. This Motion is filed pursuant to Pennsylvania Rules of Civil Procedure 1037(c), which
states: "In all cases, the court, on motion of a party, may enter an appropriate judgment against a
party, upon default or admissions."
5. It is well established that a Judgment of Non Pros is properly entered when a plaintiff has
shown lack of due diligence by failing to prosecute the civil action with reasonable promptness,
when there has been no compelling reason for the delay, and when the delay has caused
prejudice to the adverse party. See Jacobs v. Halloran, 551 Pa. 350,710 A.2d 1098 (Pa. 1998).
6. The defendants in this case have suffered actual prejudice as a result of plaintiff's failure
to prosecute this matter with reasonable due diligence, since the memories of witnesses have
likely faded over the years.
7. Plaintiffs' delay has caused a significant diminution in the defendant's ability to properly
defend this case at trial.
WHEREFORE, the defendants, Anthony P. Beaston, Jeffrey M. Beaston, and Michelle A.
Beaston, respectfully request this Honorable Court grant the Petition for Judgment of Non Pros
and dismiss plaintiffs' complaint with prejudice.
Respectfully Submitted,
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: JOh%birard6evlin, Esquire
Mt rney for Defendants
i
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR JUDGMENT OF NON PROS OF DEFENDANTS,
ANTHONY P. BEASTON, JEFFREY M. BEASTON and MICHELLE A. BEASTON
A motion for a judgment of non pros serves as the means by which a litigant "asserts his
or her common law right to a reasonably prompt conclusion to a case." Shope v. Eagle, 551 Pa.
360,710 A.2d 1104 (Pa. 1998). Pennsylvania Courts have consistently held that the grant of
judgment of non pros due to failure of a plaintiff to prosecute his action within a reasonable time
rests within the discretion of the trial court and will not be disturbed absent an abuse of
discretion. Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112,732 A.2d 735
(Pa. ] 967). The grant of non pros was traditionally based upon the principle of laches, which
does not involve the passage of a specific amount of time. Jacobs v. Halloran, 551 Pa. 350,710
A.2d 1098 (Pa. 1998). The modern judgment of non pros is codified in Pennsylvania Rule of
Civil Procedure 1037(c), which states: "In all cases, the court, on motion of a party, may enter an
appropriate judgment against a party upon default or admission."
The Pennsylvania Supreme Court has established a three part rule for the granting of a
judgment of non pros under Section 1037(c). The Supreme Court stated that a case may be
dismissed for inactivity pursuant to a defendant's motion for non pros when (1) there is a lack of
due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude, (2)
the plaintiff has shown no compelling reason for the delay, and (3) the delay has caused actual
prejudice to the defendant. Jacobs v. Halloran, 551 Pa. 350,710 A.2d 1098 (Pa. 1998). The
Pennsylvania Supreme Court examined the second prong of the rule in Marino v. Hackman, 551
Pa. 369,710 A.2d 1108 (Pa. 1998). In that case, the Court held that when determining whether
plaintiffs have set forth a compelling reason for delay of prosecution, courts should examine
each case on its merits. Id. at 374. In addition, the Court held that non-docket activity can be
examined in determining whether a compelling reason exists. Id.
In examining the third prong of the rule, the Pennsylvania Supreme Court recognized that
defendants may be prejudiced by undue delays in litigation, since memories fade, witnesses
disappear, and documents become lost or destroyed, and because "pending lawsuits often cause
undue stress and anxiety." 551 Pa. 350, 357. The Court noted that prejudice can be established
by the death or absence of a material witness. Id. at 359. The Pennsylvania Superior Court has
gone further, defining prejudice as "any substantial diminution of a party's ability to properly
present its case at trial." Metz Contracting. Inc. v. Riverwood Builders. Inc., 360 Pa. Super 445,
451,520 A.2d 891, 894 (Pa.Super. 1987).
In the present case, it is clear that a judgment of non pros is reasonable and appropriate,
as all three prongs of the test set forth by the Pennsylvania Supreme Court in Jacobs have been
met. First, there is an obvious lack of due diligence on the part of the plaintiff. Plaintiff has
allowed almost four (4) years to elapse since they first commenced this action without even
filing a Complaint. See copy of the Court's docket in this matter, attached hereto and marked as
Exhibit "e." More significantly, over eight (8) years have passed since the incident giving rise
to plaintiff's complaint. Plaintiff's last docket activity was in October of 2004, when plaintiff
filed a Statement of Intention to proceed. See Court's Docket, attached hereto as Exhibit "C."
Prior to that date, plaintiffs' last docket activity occurred in December of 2000, when plaintiff
commenced the action by filing a Praecipe for Writ of Summons. See copy of the Court's docket
in this matter, attached hereto and marked as Exhibit "c." No Complaint has been filed, no
discovery has been exchanged and no depositions have occurred. Plaintiff has offered no
compelling reason for this inordinately long delay in pursuing this matter.
Finally, this inordinately long delay has caused actual prejudice to the defendants. Here,
there has been a lapse of more than four (4) years from the date of the incident giving rise to
plaintiff's Complaint, and a lapse of more than seven (7) years since plaintiff filed his complaint.
The passing of almost ten years, coupled with the fact that no depositions have been taken,
creates actual prejudice to the defendants in this matter. The defendants have been prejudiced
because over a period of eight (8) years, the memories of witnesses have faded and no
depositions were ever taken. Even if depositions were presently taken, or this matter went to
trial, it is probable that the witnesses would have difficulty recalling the relevant facts and events
since the incident occurred so long ago and the primary actors were teenagers at the time. All of
these facts would make it very difficult for the defendant to properly present a defense in this
case.
WHEREFORE, as there has been an unexplained, undue delay with prejudicial impact,
the defendants, Anthony p, Beaston, Jeffrey M. Beaston, and Michelle A. Beaston, respectfully
request this Honorable Court grant the Petition for Judgment of Non Pros and dismiss plaintiff's
complaint with prejudice.
Respectfully Submitted,
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY:
Jo erard Devlin, Esquire
orney for Defendants
VERIFICATION
I, John Gerard Devlin, Esquire, being duly sworn according to law, hereby depose and say
that I am the attorney for defendants, Anthony P. Beaston, Jeffrey M. Beaston, and Michelle A.
Beaston, in this matter and that the facts contained in the foregoing Motion for Judgment of Non
Pros are true and correct to the best of my knowledge, information and belief. This Verification
is made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to
authorities.
Dated: May 6, 2005
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMNADED
CERTIFICATION OF SERVICE
I hereby certify that on this f'} day of May, 2005, a copy of the foregoing Petition of
Defendants for Judgment of Non Pros and accompanying Memorandum of Law in Support
Thereof were served by regular first class mail, postage pre-paid, on the following:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
EXHIBIT "A"
METL:FE ~JTC & HOME 'ay:3:741S3136
. HOCPY lNSURAN~ PHONE NO. : E57S197
Dee 29 2eoo 11:09 D.02
.
Dec. 2S 2600 68:17~. PI
.'.
~ O~~
MIC~Et L. DALLMEYER.
Pla.i.:nti f f
.....,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
v.
/ ANTHOm P. BEASTON, and
'~. JEFFRE.Y M. BEASTON and
M~~ELLE A. BEASTON
--.........
_______:~"-.y-. ante
NO. 00- 3 '110
CIVIL TERM
CIVIL ACTION LAW
JURY TRIAL DEMANDED
PRAECIPE FOR A WRIT OF SUMMONS
Please issue a Writ of Summons in the ~ase referred to ..bove
against Defendants and forward the Writ of Summons to the Sheriff
for service.
The address of the Plaintiff is 606 Belle Vista Dri~e.
Enola, PA 17025.
The address of the Defendants is 13 Sherwood Circle, Enol...
PA 17025.
, ',~
",
?-T7~
Kent H. Patterson
221 Pine Street
Harrisburg. PA 17101
(717)438-4100 ~
mUl1::';"o::>>y ::~:I'>O~"':';'~':('~""'"
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/I~ TestjoinnYW?'lCi~,;cf, I r~,"G u~Yr:J~~ i~':'; !:,;,,--/d
all? ih,!, ~I ..1 :..B (:rfit ..~ G..::;.:;1~. Pa.
Thl~. '-:~~~;;~~J ~Tm
'~,," Pr I
",' "~'... . ... ',,~
Attorney fo:rp.la.l.nt.l.!i::
Da.te, ~:Je:;~.rC/dcl
WRIT OF SUMMONS
" .
TO THE ABOVE NAMED DEFEM)AN'!'S:
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN
ACTION AGAINST YOU.
~dT.' ~ I?~ J.._~
" _ Prothc~ota.ry 1 I
, Da.te ~ 1l1-!~". 1--.,,,
~ -2Wv
by 0~" 12
1?1...c I~I "'_
tleputy
DEe 292000 11:27
3174153136
PRGE.03
EXHIBIT "B"
I
.
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: JOHN GERARD DEVLIN, ESQUIRE
LD. #32858
1515 Market Street, Suite 2010
Philadelphia, P A 19102
(215) 564-6740
Our File Number: 445-18884-JGD/p
MICHAEL L. DALLMEYER
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
v.
: NO, 00-8410
ANTHONY p, BEASTON,
JEfFREY M. BEASTON and
MICHELLE A, BEASTON
: JURY TRIAL DEMANDED
PRAECIPE TO FILE COMPLAINT
TO THE PROTHONOTARY:
Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or
suffer the entry of a Judgment of Non Pros.
DEVLIN & ASSOCIATES, P,C.
BY:
RULE TO FILE COMPLAINT
AND NOW, this I~ay of Jd0 ,2001, a Rule is hereby granted upon plaintiff to
file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a
Judgment of Non Pros.
Prothonotary
TRUE COpy FROM RECORD
_ , . ., ....." "",.,. 'I"'" ~A>; ""'" "H....
In.l~~l\S'fj'f '~r~t.1t',f)',J~, '~'9,'<t '\ "..~~.. "'"'j It1liltl?u;
:=.~~~;t~~~~~
OllOlal'Y
EXHIBIT "c"
?Y2,5 ::...:
Cumberland County Prothonocary's Office
ClVlJ. Case Prlnt
Page
1
2000-03410 ~ALLMEYER MICHAEL L (vs) BEASTON ~~THOW[ P ET AL
Reference No. . :
Case Type. ....: WRIT OF SUMMONS
Judgmenc.. ....: .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time. .. . .. . . . :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
12/04/2000
4:04
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
DALLMEYER MICHAEL L
606 BELLE VISTA DRIVE
ENOLA PA 17025
BEASTON ANTHONY P
13 SHERWOOD CIRCLE
ENOLA PA 17025
BEASTON JEFFREY M
13 SHERWOOD CIRCLE
ENOLA PA 17025
BEASTON MICHELLE A
13 SHERWOOD CIRCLE
ENOLA PA 17025
PLAINTIFF
PATTERSON KENT H
DEFENDANT
DEFENDANT
DEFENDANT
********************************************************************************
* Date Entries *
********************************************************************************
12/04/2000
12/26/2000
12/26/2000
12/26/2000
1/12/2001
1/12/2001
1/12/2001
10/26/2004
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTON ANTHONY P
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs....: $37.30 Pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTON JEFFREY M
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs....: $16.00 Pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: BEASTON MICHELLE A
SERVED : 12/21/00 ENOLA PA WRIT OF SUMM
Costs....: $16.00 Pd By: KENT PATTERSON 12/26/2000
-------------------------------------------------------------------
ENTRY OF APPEARANCE FOR DEFTS BY JOHN GERARD DEVLIN ESQ
-----------------~-------------------------------------------------
PRAECIPE FOR RULE TO FILE COMPLAINT - BY JOHN GERARD DEVLIN ESQ
-------------------------------------------------------------------
RULE TO FILE COMPLAINT - BY CURTIS R LONG PROTHONOTARY
-------------------------------------------------------------------
STATEMENT OF INTENTION TO PROCEED - BY KENT H PATTERSON ESQ FOR
PLFF
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits Bea Bal Pvmts/Adl End Bal *
********************************************************************************
WRIT OF SUMMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
35.00
.50
5.00
5.00
35.00
.50
5.00
5.00
.00
.00
.00
.00
45.50
.00
45.50
********************************************************************************
* End of Case Information *
********************************************************************************
~
,
.--1
-
.
.
MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON,
Defendants
NO. 00-8410 CIVIL TERM
ORDER OF COURT
AND NOW, this 19th day of May, 2005, upon consideration of the Motion for
Judgrnent of Non Pros of Defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, it is ordered that:
I. A Rule is issued upon Plaintiff to show cause why Defendants are not entitled
to the relief requested;
2. Plaintiff shaH file an answer to the motion within 21 days of the date of this
order;
3. The petition shaH be decided under Pa. R.C.P. 206.7;
4. Depositions shaH be completed within 49 days of the date of this order;
5. Argument shaH be held on Monday, August 8, 2005, at 1 :30 p.m., in Courtroom
No. I, Curnberland County Courthouse, Carlisle, Pennsylvania.
6. Briefs shaH be submitted at least seven days prior to argurnent.
7. The Memorandum of Law attached to Defendants' motion is hereby stricken
from the record. See Cumulus Broadcasting, Inc., Trading and Doing Business as
WNNK-FM 104 v. Bruce Bond, Matthew Raback, a/k/a "Stretch" and Citadel
f.,\j:) I
q
),,,.
Ii
.
.
...
Communications Corporation, tldlbla Citadel Broadcasting Company, tla WRKZ-FM
102.3, 52 Cumberland LJ. 108 (2003) (Oler, J., January 14,2003).
~nt H. Patterson, Esq.
221 Pine Street
Harrisburg, P A 1710 I
Attorney for Plaintiff
vfflhn Gerard Devlin, Esq.
15 I 5 Market Street
Suite 2010
Philadelphia, PA 19102
Attorney for Defendants
:rc
BY THE COURT,
MICHAEL L. DALLMEYER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
v.
: NO. 00-8~110 CIVIL TERM
:
ANTHONY P. BEASTON and
JEFFREY M. BEASTON and
MICHELLE A. BEASTON,
Defendants
CIVIL ACTION - LAW
.
.
.
.
JURY TRlCAL DEMANDED
ANSWER WITH NEW MATTER
AND NOW comes plaintiff, Michael L. DcLllmeyer, by his
attorney, Kent H. Patterson, and files thiEI answer with new
matter to defendants' motion for judgment elf non pros, as
follows:
1. Admitted.
2. Admitted.
3. It is admitted that defendants filed a praecipe for
rule to file complaint and that a complaint was not filed but it
is denied that plaintiff or plaintiff's attorney was served with
a rule to file complaint.
4. Admitted. By way of further answer, plaintiff was a
minor, age 15, at the time the accident occurred which gave rise
to this action and the action did not need to be commenced until
the time of the filing of the praecipe for 'writ of summons.
5. Admitted. Paragraph 5 does not need to be answered
but it is admitted that the case cited sets forth criteria
concerning the entry of a judgment of non p:ros.
- 1 -
6. It is denied the defendants have suffered any actual
prejudice and that plaintiffs have failed 1;0 prosecute the
matter with reasonable due diligence. It:is denied that
memories of witnesses have faded.
7. It is denied that any delay has (:aused a significant
diminution in defendants' ability to defend the case.
NEW MATTER
8. Plaintiff incorporates by refereIlce answers 1 through
7 of defendants' motion.
9. This case involves a claim for pElrsonal injury that
plaintiff Michael Dallmeyer sustained to hi.s left eye when
defendant Anthony Beaston discharged a b.b. gun and the bb
struck plaintiff in the left eye.
10. Since the filing of the action, p>laintiff, through his
attorney, has had numerous discussions and settlement
discussions with the insurance carrier for defendants.
11. plaintiff, through his attorney, has provided
defendants' insurance carrier with statements of the claim, all
medical records, statement of all special damages and medical
reports from physicians. Attached to this answer and new matter
and marked Exhibit A is a copy of a letter from plaintiff's
counsel to the insurance carrier dated Dec~mber 20, 2002 which
provides a statement of the case to both li;wility and damages.
- 2 -
12. Plaintiff did not file a complail:lt because plaintiff
was having settlement discussions with the insurance carrier and
never received a rule to file the comp1ain1: and was never
pressed by the insurance carrier to file a complaint.
13. Plaintiff filed a statement of intention to proceed
with the case on October 26, 2004.
ReElpectfully submitted,
~-TiP~
L.lt H. Patterson
Att:orney for plaintiff
Michael L. Dallmeyer
221. pine Street
Haz'risburg, PA 17101
(717)238-4100
- 3 -
K~JNT I-I. PAT'1'ERSON
A'J''J'tlHNEi' AT I..AW
~2.l 1'1N1<: S'I'Hm<':'J'
}IAHIU~JHJl.W, J'},;NNSnXANIA 17](l1
'J'1<':I,J';l'IHjN)';
(717\2:-\H-41(l(l
December 20, 2002
Cynthia J. Burnep
Senior Claim Representative
MetLife Auto and Home
Rocky Hill Field Cla~ Office
P.O. Box 529
Rocky Hill, CT 06067-0529
RE: Michael L. Dallmeyer v. Anthony 1". Beaston,
and Jeffrey M. Beaston and Michelle A. Beaston
Your insured: Jeffrey M. Beaston
Date of accident: October 14, 2002
Your Cla~ No.: 4W003806
Dear Ms. Burnep:
We are now in a position to present this case to you for
settlement. Thank you for your forbearance while we compiled
this settlement information.
Michael Dallmeyer sustained a serious injury to his left eye
when Anthony Beaston fired a BB gun and shol; Michael in the left
eye with a BB. The incident occurred in thla afternoon of October
14, 1996 at the home of Jeffrey and Michelle Beaston who are the
parents of Anthony Beaston. Michael Dallmeyer was age 15 at the
time and in the tenth grade.
The salient facts of the case are not i.n dispute. Michael
Dallmeyer and a friend by the name of Tom sc:rignoli were playing
basketball on a basketball court in the backyard of the Beaston
residence. Anthony got angry for some reasc~, presumably because
he was losing, and went into the house and locked the door.
Michael and Tom went to the house and knocked on the windows to
try to get Anthony to continue the game.
~+1151T A
Cynthia J. Burnep
Senior Claim Representative
MetLife Auto and Home
December 20, 2002
page two
Anthony came out of the house with a BB gun and started shooting
at both boys. He took aim at them. They ran down to the end of
the lot and tried to hide behind some trees but Anthony kept
shooting. Regrettably, one of the shots hit Michael in the left
eye.
We believe liability is clear.
Michael's eye immediately became blu~ry and he lost all
vision in the eye. Michael was taken to the Holy Spirit Hospital
and was subsequently treated by John R. Dailey, M.D., an
ophthalmologist. Records and reports from J)r. Dailey indicate
that Michael had an abrasion of the cornea" layered hyphema
(2mm), significant retinal swelling and red blood cells in the
anterior vitreous cavity. Dr. Dailey also indicated that a
gonioscopy showed that he had approximatel~' four clock hours of
angle recession.
These medical terms in plain English D~an that the trauma of
the BB penetrated the outer layer of tissue, of the eye and tore
the cornea. The impact was sufficiently severe that it bruised
and caused substantial swelling of the retina which is the inner
layer of tissue around the globe of the eye. The trauma caused
hyphema which is the entry of blood, from tearing or bursting of
small blood vessels, into the anterior chamber which is a chamber
of the eye between the cornea in the front and the iris and lens
at the back that is filled with watery fluid. The presence of
red blood cells in the anterior chamber can block the outflow of
fluid which increases intraocular pressure 'which can cause
further damage to the eye and glaucoma. A !ilonioscopy is the use
of a gonioscope which is an instrument that inspects the angle of
Cynthia J. Burnep
Senior Claim Representative
Met Life Auto and Home
December 20, 2002
page three
the anterior chamber and assesses the intrlilocular pressure.
Trauma can cause damage to the anterior chlunber angle which can
disrupt fluid drainage. The gonioscopy fOl~ Michael. reveal.ed an
angle recession which means a distortion of the angl.e of the
anterior chamber which can impede drainage.. Dr. Dail.ey also
reported blood in the anterior vitreous ca"ity which is the l.arge
inner cavity of the eye behind the iris and l.ens which contains a
gel l.ike fl.uid.
Treatment consisted of topical. medicat:ions and strict bed
rest. Michael. was given Hyoscine and pred Forte in eye drop
form. He was total.l.y confined to bed for approximately two
weeks, except for doctor visits, and was re,quired to l.ay on his
back and not move his head. He was not allowed to get out of bed
to go to the bathroom and had to use a bed pan. He was onl.y
permitted to el.evate himself to eat. The purpose of this kind of
treatment, as I understand it, was to prevant re-bleeding which
did occur, reduce the intraocul.ar pressure, al.l.ow the blood to
drain and to generally give the eye a chance to heal. A shiel.d
was placed over his l.eft eye. After about two weeks he started
to regain some sight in his eye and it was ,after approximately
one month that he totally regained his sight and was able to
return to school and normal activities. Mi,:hael was invol.ved in
athletics at school. and was on the varsity lbasketball team but
missed most of the season because he was uruLble to participate in
the practices at the beginning of the seaSOll.
Fortunately Michael. regained his full. sight. However, Dr.
Dail.ey has indicated that since Michael has an angl.e recession,
he will be predisposed to developing glauco~~. Dr. Dailey has
recommended that Michael. wear protective eye gear when playing
sports or other activities which could caUSE' eye injury and that
Michael have an annual eye examination.
Cynthia J. Burnep
Senior Claim Representative
MetLife Auto and Home
December 20, 2002
page four
The predisposition to developing glau(loma is a serious
matter. There are several types of glaucOJ1I1a but essentially, as
I understand it, glaucoma is generally dea(:ribed aa increased
intraocular preasure (within the eyeball) that cauaes breakdown
of tissue and in particular optic nerve daJnage which results in
loss of vision. Glaucoma has been compared to an over inflated
basketball which strains the entire inner s:urface and causes it
to break down. As previously mentioned, Dr. Dailey has indicated
that the angle recession in the interior cbamber was caused by
the accident and could at a later time cause glaucoma. There is
no cure for glaucoma and its effects can not be reveraed. It is
a progressive disease but its development can be inhibited or
arrested through surgery or medication in ~any but not all
instances.
Michael also continues to experience "floaters". These are
spots which he sees when he looks into bright sunlight or bright
light indoors. Looking up into the sky or looking at a light
fixture will cause him to see floaters. Mi,chael is now in
college and plays baseball and sees these floaters when he looks
into the sky on a sunny day or when he is playing under lights.
Although not mentioned in Dr. Dailey's report, he doea make
reference to floaters in his office note of January 9, 2001. In
addition, Dr. Dailey'S office notes of 4/8/!~7 and 4/9/97 indicate
that Michael was having blurred areas in his sight in bright
sunlight and when moving his eyes from left to right. Dr.
Dailey's office note of 10/23/97 indicatea t:hat Michael was still
seeing a "flash" when moving his eye left or right.
Although you have most of the medical 3~ecords, I am
enClosing copies of all medical records, inclUding office notes,
that I obtained from Dr. Dailey in the event: that you do not have
some of them. Also enclosed is a copy of Dx~. DaileY'a report to
me of May 14, 2001.
Cynthia J. Burnep
senior ClaUn Representative
MetLife Auto and Home
December 20, 2002,
page five
Further enclosed is a statement of Mr. Dallmeyer's medical
treatment and expenses which total $960.00.
rn summary, we have a young man who W8.S age 15, almost 16,
at the time of the accident and is now age 22. He suffered a
very serious eye injury but was fortunately' able to regain his
sight. However, the injury produced an angle recession in the
interior chamber which is permanent and will predispose him to
glaucoma in the future. He should wear protective eye gear
whenever engaging in sports or other activity which could cause
trauma to his eye. He also continues to e~perience "floaters".
These are injuries which will have an effect on this young man
for the rest of his life.
Please give me a call after you have h'iLd a chance to review
this matter and r will be pleased to furthe:~ discuss settlement
with you.
VeZ"Jr truly yours,
Kent: H. Patterson
KHP/cvf
Enclosures
,
MICHAEL L. DALLMEYER, : IN THE COURT OF COMMON PLEAS
Plaintiff . OF CUMB:E:RLAND COUNTY
.
.
.
v. NO.00-84,10 CIVIL TERM
ANTHONY P. BEASTON and CIVIL ACTION - LAW
JEFFREY M. BEASTON and
MICHELLE A. BEASTON, .
.
Defendants JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this ~ day of ~jr , 2005 I, Kent H. Patterson,
hereby certify that I this day served the within answer with new
matter by depositing a copy of same in the United States mail, postage
.
prepaid, at Harrisburg, Pennsylvania addreslsed to counsel of record
for defendants as follows and by facsimile ILumber (215) 564-6732.
Michael S. McCarter, Esquire
Devlin Associates, P.C.
1515 Market Street
Suite 2010
Philadelphia, PA 19102
A~l /I-,~
Kent H. Patterson
-
Atto:t"ney for plaintiff
221 l~ine Street
Harrisburg, PA 17101
(717) 238-4100
a
~
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~
-
MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
ANTHONY P. BEASTON and
JEFFREY M. BEASTON and
MICHELLE A. BEASONT,
Defendants
00-8410 CIVIL TERM
ORDER OF COURT
AND NOW, this 8th day of August, 2005, upon
consideration of the Motion for Judgment of Non Pros of Defendants
Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston, and
following a conference held in the chambers of the undersigned
judge in which Plaintiff was represented by Kent H. Patterson,
Esquire, and Defendants were represented by Michael S. McCarter,
Esquire, and pursuant to an agreement of counsel, it is ordered and
directed as follows:
1. The Motion for a Judgment of Non Pros of
Defendants Anthony P. Beaston, Jeffrey M. Beaston and Michelle A.
Beaston is deemed withdrawn;
2. Plaintiff shall file his complaint in this matter
within 30 days of today's date; and
3. Within 90 days of the filing of Defendants' answer
and any reply to new matter discovery shall be complete in this
case.
By the Court,
~
J.
VIN'1f\1ASNN3d
,U~lnCO (':\',r~{:'i'~3~N~n8
+J I :2 \~d II 50'f SOOl
Al:lV10NOH10Bd 3Hl :lO
3::J8:\o-<Bll:l
.
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
For the Plaintiff
Michael S. McCarter, Esquire
Ste. 2010
1515 Market Street
Phi1a, PA 19102
For the Defendant
pcb
MICHAEL L. DALLMEYER
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 00-8410
ANTHONY P. BEASTON, and
JEFFERY M. BEASTON and
MICHELLE A. BEASTON
Defendants
CIVIL ACTION - LAW
JURY TRIAL 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 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 defense 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 LEGAL HELP.
Cumberland County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013-3387
(717) 240-6200
NOT I C I A
Le han demandado a usted en la corte. Si usted quiere
deferderse de estas demandas expuestas en las paginas siguientes,
usted tiene (20) dias de plaze al partir de la fecha de la demanda
y la notificacion. Usted debe presentar una apariencia escrita 0
en persona 0 por abagado y archivar en la corte en forma escrita
sus defensas 0 sus objeciones alas demandas in contra de su
persona. Sea avisado que si usted no se defiende, la corte tomara
rnedidas y puede entrar una orden contra usted sin previo aviso 0
notificacion y por cualquire queja 0 alicio que es pedido en la
peticion de dernanda. Usted puede perder dinero 0 sus propiedades
o otros derechos import antes para usted.
LLEVE ESTA DEMANDA A UN ABAGADO INMEDIATAMENTE. SI NO TIENE
ABAGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGER TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFON A LA OFIClNA CUYA DIRRECCION SE
ENCUENTRA ESVRITA ABAJO PAPA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013-3387
(717) 240-6200
MICHAEL L. DALLMEYER,
Plaintiff
:
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
.
.
v.
.
.
NO. 00-8410
CIVIL TERM
ANTHONY P. BEASTON, and
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW comes plaintiff, Michael L. Dallmeyer, by his
attorney, Kent H. Patterson, and files this complaint as
follows:
1. Plaintiff Michael L. Dallmeyer is an adult individual
residing at 606 Belle Vista Drive, East pennsboro Township,
Cumberland County, pennsylvania (Enola, PA 17025).
2. Defendant Anthony P. Beaston is an adult individual
residing at or having a last know address at 13 Sherwood Circle,
East pennsboro Township, Cumberland County, Pennsylvania (Enola,
PA 17025).
3. Defendants Jeffrey M. Beaston and Michelle A. Beaston
are adult individuals residing at 13 Sherwood Circle, East
Pennsboro Township, Cumberland County, Pennsylvania (Enola, PA
17025).
- 1 -
4. The events referred to in this complaint occurred on
the premises located at 13 Sherwood Circle, East Pennsboro
Township, Cumberland County, Pennsylvania which was the
residence of defendants Jeffrey M. Beaston and Michelle A.
Beaston and their son, defendant Anthony P. Beaston.
5. At all times mentioned in this complaint, defendants
Anthony P. Beaston and Jeffrey M. Beaston were the owners or
possessors of the premises referred to above.
6. At the time of the incident mentioned in this
complaint, plaintiff was a minor, age 15, having been born
December 5, 1980.
7. At the time of the incident mentioned in this
complaint, defendant Anthony P. Beaston was a minor, age 15 or
16.
COUNT I.
MICHAEL L. DALLMEYER v. ANTHONY P. BEASTON
8. On or about October 14, 1996 at approximately 3:00 p.m., at
the invitation of defendant Anthony Beaston, plaintiff,
defendant Anthony Beaston and another young man of the same
approximate age of plaintiff, were playing basketball at 13
Sherwood Circle.
- 2 -
9. At the aforesaid time and place, defendant Anthony
Beaston became upset about his score in the game and/or for
other reasons and went into the house and came out with a BB
rifle.
10. Defendant Anthony Beaston pointed the BB rifle at
plaintiff and the other young man and then began discharging the
BB rifle and firing it at plaintiff.
11. Plaintiff attempted to take cover to avoid being
struck by the BBs being discharged from the rifle but a BB
struck plaintiff in the left eye.
12. The injury to plaintiff's left eye was caused by the
negligence and carelessness of defendant Anthony Beaston which
consisted of the following:
A. Shooting or discharging a BB rifle in presence of
plaintiff and others when he knew or should have known that it
would be dangerous to do so.
B. Pointing and/or discharging a BB rifle directed
at plaintiff and others when he knew or should have known that
is was dangerous to do so.
C. Loading and discharging a BB rifle on the
premises in derogation of municipal ordinances and law.
- 3 -
13. As a result of the conduct of defendant Anthony
Beaston, plaintiff sustained injury to his left eye, including
abrasion of cornea and layered hyphema, significant retinal
swelling, red bloqd cells in the anterior vitreous cavity,
temporary loss of sight, predisposition to glaucoma and other
injuries.
14. As a result of the conduct of defendant Anthony
Beaston, plaintiff required medical treatment from physicians
and other health care providers including examinations, x-rays,
medication, gonioscopy, immobization and bed rest and other
treatment.
15. As a result of the conduct of defendant Anthony
Beaston, plaintiff has and will incur medical expenses and will
or may be required to undergo medical treatment in the future.
16. As a result of the conduct of defendant Anthony
Beaston, plaintiff has undergone pain and suffering and shock
and damage to his nervous system in the future.
17. As a result of the conduct of defendant Anthony
Beaston, plaintiff has or will suffer loss of life's pleasures
and enjoyment.
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18. As a result of the conduct of defendant Anthony
Beaston, plaintiff has suffered or may suffer impairment of his
earning power and income.
19. As a result of the conduct of defendant Anthony
Beaston, plaintiff has or will suffer permanent disability to
his person.
WHEREFORE, plaintiff demands judgment against defendant in
an amount in excess of the jurisdictional amount requiring
arbitration referral by local rules of court.
COUNT II.
MICHAEL L. DALLMEYER v. ANTHONY P. BEASTON
20. Plaintiff incorporates by reference paragraphs 1
through 11 and paragraphs 13 through 19.
21. The injury to plaintiff's left eye was caused by the
reckless, willful, wanton and/or intentional conduct of
defendant Anthony Beaston which consisted of the following:
A. Reckless disregard for the safety of plaintiff
and others when he knew or should have known that his conduct of
discharging a BB rifle in the presence of plaintiff and others
would produce harm.
- 5 -
B. Reckless disregard of the safety of plaintiff and
others when he knew or should have known that his conduct in
discharging a BB rifle directed at plaintiff and others would
produce har.m.
C. Reckless disregard of the safety of plaintiff and
others when he knew or should have known that his conduct in
loading and discharging a BB rifle directed at plaintiff and
others would produce har.m.
D. Assaulting plaintiff by shooting a BB rifle at
plaintiff.
22. Defendant Anthony P. Beaston is liable for punitive
damages as a result of his reckless, willful, wanton and/or
intentional conduct.
WHEREFORE, plaintiff demands judgment against defendant in
an amount in excess of the jurisdictional amount requiring
arbitration referral by local rule of court.
COUNT III.
MICHAEL L. DALLMEYER v. ANTHONY P. BEASTON
JEFFERY M. BEASTON AND MICHELLE A. BEASTON
23. Plaintiff incorporates by reference paragraphs 1
through 22.
- 6 -
24. Defendants Jeffery M. Beaston and Michelle A. Beaston
are liable for the negligence, reckless, willful, wanton and/or
intentional conduct their son, defendant Anthony P. Beaston for
the following reasons:
A. Defendants made available to defendant Anthony
Beaston or allowed him to have possession and control of the BB
rifle without providing him with appropriate training and
control and/or supervision for its use.
B. Defendants made available to defendant Anthony
Beaston or allowed him to have possession and control of the BB
rifle when they knew or should have known that he was not of
sufficient maturity or temperament to possess, operate and
discharge such a weapon.
C. Defendants made available to defendant Anthony
Beaston or allowed him to have possession or control of the BB
rifle
when they knew or should have known that he would use the weapon
at times without any supervision or control and would discharge
it at inappropriate times which would cause harm to others.
D. Failed to keep the BB rife and ammunition stored
in safe places where defendant Anthony Beaston would be unable
to gain access and control of the weapon.
- 7 -
25. The conduct of defendants Jeffrey Beaston and Michelle
Beaston described above was knowing and reckless and renders
them liable for punitive damages.
WHEREFORE, plaintiff demands jUdgment against defendants in
an amount in excess of the jurisdictional amount requiring
arbitration referral by local rule of court.
Kent H. Patterson
Attorney for plaintiff
221 pine Street
Harrisburg, PA 17101
(717) 238-4100
- 8 -
VERIFICATION
I, Michael L. Dallmeyer, verify that the statements in
the foregoing complaint are true and correct to the best of
my knowledge, information and belief. I understand that
false statements herein are made subject to penalties of 18
Pa. C.S. 4904 relating to unsworn falsification to
authorities.
i.~.
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Dallmeyer
Date:
q!7 / d.ClCS-
MICHAEL L. DALLMEYER
Plaintiff
IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: No. 00-8410 CIVIL TERM
v.
: CIVIL ACTION - LAW
ANTHONY P. BEASTON, and
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 7 10 day of ~~L, 2005 I, Kent H.
Patterson, hereby certify that I this day served the within
complaint by depositing a copy of same in the United States mail,
postage prepaid, at Harrisburg, pennsylvania, addressed to counsel
of record for defendants as follows:
Michael S. McCarter, Esquire
Devlin Associates, P.C.
1515 Market Street
Suite 2010
Philadelphia, PA 19102
~f/~~
~ent H. Patterson
-
Attorney for plaintiff
221 pine Street
Harrisburg, PA 17101
(717) 238-4100
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To Parties:
You are hereby notified to plead to
the enclosed New Matter within
twenty (20) days from the service
hereof or a default judgment may be
entered gai you.
orney r Defendant ,
Anthony P. Beaston, Jeffrey M,
Beaston and Michelle A. Beaston
JOHN GERARD DEVLIN & ASSOCIATES, P.c.
BY: John Gerard Devlin, Esquire
ID# 32858
1515 Market Street, Suite 2010
Philadelphia, PA 19102
(215) 564-6740
devlinlaw@aol.com
Our File No. 445-18884-JGD
MICHAEL L. DALLMEYER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
: NO. 00-8410
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON
JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF DEFENDANTS,
ANTHONY P. BEASTON, JEFFREY M. BEASTON AND MICHELLE A. BEASTON
Defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A. Beaston, by way of
answer to the Complaint aver as follows:
1. Admitted.
2. Admitted.
3. Admitted.
II
r
4.
Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
II
I
I
same is demanded at time oftrial.
5. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a beliefregarding the truth ofthe allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
6. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
7. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
COUNT I - MICHAEL L. DALLMEYER V. ANTHONY P. BEASTON
8. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a belief regarding the truth of the allegations contained in this
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
9. Denied. Answering defendants are currently without sufficient knowledge or
information with which to form a beliefregarding the truth of the allegations contained in this
jl
II
I
paragraph of the Complaint. Therefore, all allegations are deemed to be denied. Strict proof of
same is demanded at time of trial.
10. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way offurther answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
II. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way offurther answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
12. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
13. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
14. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
15. Denied. All allegations regarding negligence on the part of answering defendants
II
II.
II
are deemed to be specifical1y denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
16. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifica\1y denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
17. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way offurther answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
II
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
18. Denied. AI1 allegations regarding negligence on the part of answering defendants
are deemed to be specifica\1y denied. By way offurther answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
19. Denied. AI1 allegations regarding negligence on the part of answering defendants
are deemed to be specifical1y denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
COUNT II - MICHAEL L. DALLMEYER V. ANTHONY P. BEASTON
20. Answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michel1e A.
II
I
Beaston, incorporate by reference their responses to the allegations contained in paragraphs 1-19
of the Complaint as if same were fully set forth herein at length.
21. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way offurther answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
22. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
I
I
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
COUNT III - MICHAEL L. DALLMEYER V. ANTHONY P. BEASTON,
JEFFREY M. BEASTON AND MICHELLE A. BEASTON
23. Answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle A.
Beaston, incorporate by reference their response to the allegations contained in paragraphs 1-22
of the Complaint as if same were fully set forth herein at length.
24. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way of further answer, it is specifically denied that any
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
25. Denied. All allegations regarding negligence on the part of answering defendants
are deemed to be specifically denied. By way offurther answer, it is specifically denied that any
II
II'
I
actions or omissions on the part of answering defendants were the legal or proximate cause of
any injuries sustained by the plaintiff. Strict proof of same is demanded at time of trial.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
NEW MATTER
26. The claims of the plaintiff are barred and/or limited by the provisions of the
Pennsylvania Comparative Negligence Act, 42 Pa. C.S. Section 7102.
27. If there be a judicial determination that Pa. R.C.P. 238 is Constitutional, said
Constitutionality being expressly challenged as in violation of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution, 42 U.S.C.
Section 1983; Article!, Sections I, 6, ll, 26; and Article V, Section lO(c) of the Pennsylvania
Constitution, then liability for any interest imposed by the Rule should be suspended during the
period of time that plaintiff:
a) fails to convey to the defendants a settlement demand figure;
b) delays in responding to Interrogatories;
c) delays in responding to Request to Produce;
d) delays in producing plaintiff for a deposition;
e) delays in producing plaintiff for a physical examination;
f) delays in any other discovery request made by the defendants, and, as a result of any
delay, the plaintiff should be estopped from obtaining interest because of any violation of the
Discovery Rules.
28. Any damages or injuries which may have been sustained by the plaintiff were the
result of an unavoidable accident insofar as the answering defendants are concerned.
II
I.
II
29. Any injuries or damages allegedly sustained by plaintiff were caused through the
sole negligence ofthe plaintiff.
30. There was no willfulness involved in any of the events involving the factual basis
upon which this suit has been instituted.
31. The claims of the plaintiff are barred and/or limited by reason of the statute of
limitations, inasmuch as suit was not instituted and service of process was not made within the
applicable limitations period.
32. Negligence, if any, on the part of the answering defendants, was not the proximate
cause of any damages or injuries which may have been sustained by the plaintiff.
33. The Complaint fails to state a claim upon which relief can be granted as against
the answering defendants.
34. The answering defendants were free of any and all negligence.
35. Any damages or injuries which may have been sustained by the plaintiff were
caused through the sole negligence of a third party or parties over whom the answering
defendants exercised no control.
WHEREFORE, answering defendants, Anthony P. Beaston, Jeffrey M. Beaston and
Michelle A. Beaston, demand that judgment be entered in their favor.
Respectfully submitted,
DEVLIN & ASSOCIATES, P.C.
BY:
f
!
II
VERIFICATION
I, John Gerard Devlin, Esquire, being duly sworn according to law, hereby deposes and
says that he is the attorney for defendants, Anthony P. Beaston, Jeffrey M. Beaston and Michelle
A. Beaston, in the above-captioned matter, that insufficient time exists to secure signature of
defendants to an affidavit, and that the facts contained in the attached Answer and New Matter
are true and correct to the best of my knowledge, information and belief.
, squire
II
II
I.
CERTIFICATION OF SERVICE
I, John Gerard Devlin, Esquire, counsel for defendant, Anthony P. Beaston, Jeffrey M.
Beaston and Michelle A. Beaston, hereby certifies that on October 19, 2005 he mailed by First
Class Mail, postage prepaid a true and correct copy of Answer and New Matter to all interested
parties as listed below:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
RD DEVLIN & ASSOCIATES, P.C.
BY:
Dated: October 19, 2005
I.
CERTIFICATION OF SERVICE
I, John Gerard Devlin, Esquire, counsel for defendant, Anthony P. Beaston, Jeffrey M.
Beaston and Michelle A. Beaston, hereby certifies that on October 27, 2005 he mailed by First
Class Mail, postage prepaid a true and correct copy of Answer and New Matter to all interested
parties as listed below:
Kent H. Patterson, Esquire
221 Pine Street
Harrisburg, PA 17101
JOHN GERARD DEVLIN & ASSOCIATES, P.C.
BY:
Gerard D 'n, Esquire
Counse or Defendants
Dated: October 27, 2005
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MICHAEL L. DALLMEYER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-8410
v.
CIVIL ACTION - LAW
ANTHONY P. BEASTON,
JEFFREY M. BEASTON and
MICHELLE A. BEASTON,
Defendants
JURY TRIAL DEMANDED
PRAECIPE
TO the Prothonotary:
Please enter on the docket that this case has been settled
and is discontinued.
/
.
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Kent H. Patterson
221 pine Street
Harrisburg, PA 17101
(717)238-UOO
Attorney for plaintiff
Date:
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