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Home My WebLink About01-1403 FX '~d _ "~"P~i~f;, - . . ... ~ . Metropolitan Life Insurance Company One Madison Avenue, New York, NY 10010- 3690 MetLife ~v1J ~ oj' J Gabriele Prewitt Paralegal Legal Department Tel212 578-2888 Fax 212 578-3916 March 27,2001 Clerk of Common Pleas " The Office ofthe Sheriff of t- Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, Pa., 17013 And Eugene A. Luciw, Esq. Messrs. Hecker, Brown, Sherry & Johnson Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, Pa., 18018.6506 Re: Writ of Execution No. 01.1400 Equity Term Judgment No. EX.Ol.35 Weis Markets, Inc., v. Robert Towns, et al Dear Sir: Enclosed herewith please find executed Interrogatories in Attachment. Please file with Court. Very truly yours, Gabriele E. Prewitt Ene. ,- I I -,"-'. I " _,",.;c';,. ~~.._ " , to SPECTOR GADON & ROSEN, P.C. By: Lary I. Zucker, Esquire Identification No. 61072 John T. Asher, III, Esquire Identification No. 76957 Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840/(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, Inc. ------------------------------------------------------------------- ------------------------------------------------------------------- PAULETTE HARRIS COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. 01.1403 Civil CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants ORDER AND NOW, this day of , upon consideration of defendant, Carlisle Sports Emporium, Inc.'s Preliminary Objections to Plaintiff's Complaint, and any response thereto, it is hereby ORDERED that Defendant, Carlisle Sports Emporium's preliminary objections to plaintiff's complaint are GRANTED in the following respects: 1. Plaintiff's Complaint directed to defendant, "John Doe, Employee" is dismissed with prejudice; or, in the alternative, -7- " " '. I~tll M'~< _ o' :'<~_--.'-_ - _~ , ~ 2. Defendant, "John Doe, Employee" is STRICKEN from plaintiffs complaint with prejudice and all causes of action against defendant, "John Doe, Employee" including those causes of action contained in Counts II and IV of plaintiffs complaint are STRICKEN with prejudice; 3. Plaintiff is precluded from amending her complaint to name additional parties beyond the statute of limitations; and, 4. the averments of recklessness contained in paragraphs 10 and 15(d) are STRICKEN from plaintiffs complaint with prejudice. By the Court, , J. -8- ~- , _;';.;'-~~_" - -'d_'~,", >-",;.0,-" 1~,;,.J."~"_'__- ~ KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff I i I:] PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY ;.; I I vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil , i ~ I Defendants. ORDER AND NOW, this day of ,2001, upon consideration of plaintiffs Answer to defendant, Carlisle Sport Emporium, Inc,'s Preliminary Objections to plaintiffs Complaint, it is hereby ORDERED AND DECREED that: _ defendant's Preliminary Objections in the nature of a motion to strike the allegations of recklessness from plaintiff's Complaint are SUSTAINED. _ defendant's Preliminary Objections in the nature of a motion to dismiss plaintiffs Complaint against defendant, John Doe, Employee for improper are OVERRULED. _ defendant's Preliminary Objections in the nature of a motion to strike the designation of defendant, John Doe, Employee from plaintiffs Complaint are OVERRULED. It is further ORDERED AND DECREED that defendant file an Answer to plaintiffs Complaint within twenty (20) days of the date of this Order. BY THE COURT: J. , II ""~.. u " " '''~.'-- , KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. ORDER AND NOW, this _ day of ,2001, upon consideration of plaintiff's Answer to defendant, Carlisle Sport Emporium, Inc.'s Preliminary Objections to plaintiff's Complaint, it is hereby ORDERED AND DECREED that: _ defendant's Preliminary Objections in the nature of a motion to strike the allegations of recklessness from plaintiff's Complaint are SUSTAINED. _ defendant's Preliminary Objections in the nature of a motion to dismiss plaintiff's Complaint against defendant, John Doe, Employee for improper are OVERRULED. _ defendant's Preliminary Objections in the nature of a motion to strike the designation of defendant, John Doe, Employee from plaintiff's Complaint are OVERRULED. It is further ORDERED AND DECREED that defendant file an Answer to plaintiff's Complaint within twenty (20) days of the date of this Order. BY THE COURT: J. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, P A 19053 (215) 396-9001 TillS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION 6/. /'1 61 ~,2001 CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. Docket No. COMPLAINT Complaint Civil Action: Mi~edlllBeetls NOTICE You have been sued in court. If you wish to defend against the claims set. forth In the following pages. you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance perscJnally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. Vou are warned that If you fall 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 cralmed in the complaint or for any other claim or relief requested by the plaintiff. You may Jose 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. Nama ~buW ~i~ & ~l(!)t) Address 2 t. L~ C'1 City :J 0l'. G.(lisk, I?A 1l0\~ Tel. No. (,11 ) Nt - 31~<Q "~"'!"'ffl_~11 1...1" ~, -, ~''''''>'--' ~.i!;\-"-;': ,~ I I i'l , ~ ,j j1 KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 TillS IS AN ARBITRATION MATTER Assessment of damages hearing is requested ,I :, q i-I :"1 '-j :'i ~ i i , ! 1 'I !'i Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY ~ -, "I ,:1 ,-j .:,1 CIVIL ACTION vs. 01-/'103 ~TERM,2001 CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. Docket No. COMPLAINT Complaint Civil Action: l\1i"~."II...:1e911.S 1. Plaintiff, Paulette Harris, is an adult individual, residing at 1880 Lafayette Avenue, in Bronx, New York. 2. Defendant, Carlisle Sports Emporium, Inc., is a business, company, entity, partnership, franchise, fictitious name, proprietorship or corporation existing and/or qualifying under the laws of the Commonwealth of Pennsylvania, with a registered office for acceptance of service or principal place of 1 ~""'~l _0 _I -" --~ ~'..:'4!&!l.\~~, . business at 36 Kelly Drive, Carlisle, in the Commonwealth of Pennsylvania. 3. Defendant, John Doe, is an adult individual and employee of Carlisle Sports Emporium, Inc., located at 36 Kelly Drive, in Carlisle, Pennsylvania. 4. Defendant, Travis Best, is an adult individual, residing at 2569 South Avenue, in New York, New York. 5. At all times relevant and material, defendant, John Doe, was an agent, servant and/or employee of defendant, Carlisle Sports Emporium, Inc., acting at all times within the course and scope of his employment. 6. At all times relevant and material to this Complaint, defendants did act through their agents, servants, workmen, employees and/or representatives, said individuals acting within the course and scope of their employment and/or agency. 7. At all times relevant and material to this Complaint, defendant, Carlisle Sports Emporium, Inc., owned, operated, leased, managed, controlled and/or had dominion over the premises commonly known as Sports Emporium, located at 29 S. Middlesex Road, in Carlisle, Pennsylvania (the "Premises"). 8. At all times material and relevant hereto, there was an obligation on the part of the aforesaid defendants, to supervise, maintain, inspect, clean and otherwise be responsible for the Premises, including the roller skating rink area of the Premises, so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 9. On or about March 13, 1999, at or about 9:30 p.m., plaintiff, Paulette Harris, was a business invitee on the Premises, on or about the go.cart track area of the Premises. 10. At the aforementioned time and place, plaintiff, Paulette Harris, was operating a go.cart, on 2 ~ - .... ._J I' , ,.J, ,c' ,_, l_l!~; the go.cart track, when suddenly and without warning, defendant employee, John Doe, failed to prevent defendant, Travis Best, from operating his go.cart in a dangerous and reckless manner, on the aforementioned go.cart track, allowing defendant, Travis Best, to operate his go.cart in a dangerous and reckless manner, thereby causing plaintiffs go.cart to be violently struck by defendant, Travis Best's, go- cart, causing plaintiff to suffer severe and grievous injuries. II. At all times relevant hereto, defendants herein owed a duty to supervise, manage, train, and otherwise be responsible for the conduct of their employees, to provide a safe and hazard free environment and otherwise be responsible for the aforesaid premises so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 12. The circumstances under which plaintiff, Paulette Harris, was injured were such that said injuries to plaintiff could not have occurred on the Premises except by defendants' negligence. 13. The aforesaid accident resulted solely from the negligence and carelessness of defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, and in no manner whatsoever to any act or failure to act on the part of plaintiff, Paulette Harris. COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM. INC. 14. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through thirteen, inclusive, as though same were set forth herein at length. 15. The negligence and carelessness of defendant, Carlisle Sports Emporium, Inc., consisted of the following: (a) failing to provide safe conditions for business invitees, patrons and/or members of the public on the Premises; 3 "' I, =. ~J ~ "U . '-"' -"- ~ 1.- ~ I ,-, ~ . , _M~'t.'~ (b) failing to supervise, train, review or regulate the conduct of Sports Emporium employees on ',:' , the Premises, said failure to supervise, train, review or regulate the conduct of Sports Emporium employees existing for a long time prior to the date of this accident; (c) failure to properly and adequately train Sports Emporium employees, in particular the aforesaid unsafe conduct of the employee, John Doe, of Carlisle Sports Emporium, Inc.; (d) failure to take reasonable precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees; (e) failure to properly and adequately hire and/or instruct the agents, servants, workmen, employees and/or representatives, of defendant herein, as to the safe and proper procedures for supervising, training, and regulating the conduct of Sports Emporium employees which caused plaintiffs injuries; (f) failure to use reasonable care in the construction, maintenance and operation of the Premises, in particular, the go.cart track area; (g) failure to provide and maintain proper supervision of the Premises; (h) failure to provide and maintain proper safety precautions at the Premises; (i) failure to furnish a reasonable number and distribution of safety personnel and safety equipment at the Premises; G) failure to provide and maintain proper training procedures at the Premises; (k) failure to furnish a reasonable number and distribution of training personnel and training equipment at the Premises; and (I) negligence per se. 4 II I __J ~" ,.,u._. '. , i .Ib.- .~"'t_~ WHEREFORE, plaintiff, Paulette Harris, demands damages against defendant, Carlisle Sports Emporium, Inc., in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT II PAULETTE HARRIS vs. JOHN DOE 16. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through fifteen, inclusive, as though same were set forth herein at length. 17. The negligence of the defendant, John Doe consisted of the following: (a) failing to properly and adequately conduct himself when interacting with business invitees, patrons and/or members of the public, in particular, plaintiff, Paulette Harris; (b) failing to use due care and to employ reasonable skill in the performance of his job duties; (c) negligently and carelessly inflicting bodily harm upon the plaintiff; (d) negligently and carelessly allowing another person to continually operate a go.cart in a dangerous and reckless manner; and (e) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendant, John Doe, in a sum not in excess of $50,000.00, plus interest, costs, and attorneys' fees. COUNT III PAULETTE HARRIS vs. TRAVIS BEST 18. Plaintiff, Paulette Harris, incorporate by reference thereto, paragraphs one through seventeen, inclusive, as though same were set forth herein at length. 19. The negligence and carelessness of defendant, Travis Best, consisted of the following: (a) failing to properly operate and control said go-cart; 5 II J ~ , ~- ,. C_, .d~ii',;.; (b) operating said go-cart at an excessive and unsafe rate of speed under the circumstances; ( c) operating said go.cart in a dangerous and reckless manner; (d) failing to maintain a proper and adequate lookout; ( e) failing to follow and observe traffic patterns and conditions; (f) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid; (g) causing a vehicular collision; (h) failing to properly and adequately maintain said motor vehicle; (i) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages of defendant, Travis Best, in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT IV PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM. INC.. JOHN DOE and TRAVIS BEST 20. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through nineteen, inclusive, as though same were set forth herein at length. 21. A13 a result of this accident, plaintiff, Paulette Harris, has suffered injuries which are or may be serious and permanent, including, but not limited to cervical strain and sprain, lumbosacral strain and sprain, right shoulder strain and sprain, right brachial plexus injury, radiculopathy, post-traumatic headaches, post.traumatic stress disorder, myofascitis, cervalgia, lumbalgia and thoracicalgia, 22. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive 6 j ~" , - ,-- j ~- . ,;;;.-'-- r'_'I..id,Jj,~_;:,; and undergo medical attention and care for her injuries, and to incur various expenses for said care, and she may be obligated to continue to expend such sums and to incur such expenses for an indefinite period of time in the future. 23. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo reasonable and necessary medical treatment and rehabilitative services for the injuries she has suffered, and to incur various expenses for said treatment and services, and she may incur various reasonable and necessary future medical expenses from the injuries sustained, and defendants are liable for all of the same. 24. As a further result of this accident, plaintiff, Paulette Harris, has or may suffer severe loss and impairment of her earning capacity and power, and may continue to suffer such a loss of an indefinite time in the future. 25. As a further result of this accident, plaintiff, Paulette Harris, has been unable to attend to her daily chores, duties and occupations, and may be unable to do so for an indefinite time in the future. 26. As a direct result of the accident, plaintiff, Paulette Harris, has and may continue to in the future incur other financial expenses or losses to which she may be otherwise entitled to recover. 27. As a further result of the accident, plaintiff, Paulette Harris, has suffered severe physical pain, aches, mental anguish, and humiliation, inconveniences, and loss of life's pleasures, and she may continue to suffer the same for an indefinite time in the future. 7 I __^ ~"' " ~ 6~:; ~ J ~j~kK\ -- -" ,,-" j ., .-.-,>, WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, jointly and/or severally, in a sum not in excess of $50,000.00, plus interest, costs, and attorney's fees. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~~J~ Attorney for Plaintiff 8 il ~' ~ 1.1' .,~ ~I '~,""ol>)rt"'"","'. VERIFICATION Ql~tk ~~ , hereby verifies that he/she is the plaintiff herein and that the facts set forth in the foregoing pleading are true and correct to the best of his/her knowledge, information and belief. This statement is made subjec to the penaItiesof 18 PA C.S. Date: h.r<:.~ '2., 2DOJ ~~ ~ - -=- - 't'.' SHERIFF'S RETURN - REGULAR CASE NO: 2001-01403 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARRIS PAULETTE VS CARLISLE SPORTS EMPORIUM INC E GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARLISLE SPORTS EMPORIUM INC the DEFENDANT , at 1735:00 HOURS, on the 3rd day of April , 2001 at 36 KELLY DRIVE CARLISLE, PA 17013 by handing to DAN HURLEY MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So An?~~ , :; 18.00 3.10 .00 10.00 .00 31.10 R. Thomas Kline 04/04/2001 KATS & ASSOCIATES Sworn and Subscribed to before me this /1 E day of By: ~{l}~ Deputy S riff ()~ tJ-{)o I A.D. Q vLA- {2 ~A%", "dthonotary . "~-'....... ...~ ~ ,~<" ''''.....;j, . .., HECKER BROWN SHERRY AND JOHNSON BY: Steven D. Johnson/Eugene A. Luciw Atty. LD. Nos.: 23848/38969 Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, PA 18018.6506 (610) 868.1400 WEIS MARKETS, INC., Plaintiff Attorneys for Plaintiff Weis Markets, Inc. COURT OF COMMON PLEAS NORTHUMBERLAND COUNTY v. CIVIL EQUITY A~~ON 1739 7U"O/- l'iU1J -U~ Judgment No.: Jf.>e-O/"'3.6 SILVER LAKE FOODS, INC. and ROBERT TOWNS, Defendants Cumberland County No.: INTERROGATORIES IN ATTACHMENT ADDRESSED TO GARNISHEE. METROPOLITAN LIFE INSURANCE COMPANY ("..,:) C'"Jl r;:":') -0 -., ...i" ~ " '.'.' '-.. ~ , l...:" \"..) Cl\ To: Metropolitan Life Insurance Company Clo Brian Breneman, Regional Manager 4720 Old Gettysburg Road, Suite 305 Mechanicsburg, P A 17055 :.' ~ .H_ "':1 j ..,J .... . i! :'"1:'- , -'. () C) ..;.- You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do may result in judgment against you: N.B. References to defendant include defendant, Robert Towns, only. I. At the time you were served or at any subsequent time did you owe the defendant any money or were you liable to the defendant on any negotiable or other written instrument, or did the defendant claim that you owed the defendant any money or ~ j"J!.:i-./6Y-Tt- were liable to the defendant for any reason? yLAl fJ'!""k> Y 3 J Answer: . If so, please provide particulars so far as ~.":f:.-/- I~V-V' ,. W)L. relevant regarding the monies owed (or claimed to be owed) or the liability (or claim of liability) including, without limiting generality, the amount of same, how same arose, same's value, identifYing details of the negotiable or other written instrument, any account or file numbers, the nature of same, the status of same, the names and addresses of any persons taking part in any relevant transactions, the specific amount of the debt, the value 59663.1 HECKER BROWN SHERRY AND JOHNSON LLP . SUITE eoo . THE PROFESSIONAL BUILDING. 6S E. ELIZABETH AVENUE. B,ETHLEHEM, PA 18018-6506 I . . . Ylu.OI- Nil/, ~...:1'. t.t.- and location of any property, and the nature and amount of consideration, if an~ for any transfer of property. 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or i~ part by the VI ..t.. Lt defendant? !j: ~~.Jj:L /(, y_j"b-J- rJ if 1'-"-" Answer: . If so, please provide particulars so far as .. relevant regarding the property, setting forth, without limiting generality, its nature, amount, value, identity, file number, account number, accompanying documentation, all other persons in possession, all persons who own same, all persons who claim a right to same, its status, the names and addresses of any persons taking part in any relevant transactions, the specific amount or the value ofthe property, the location of any 59663.1 HECKER BROWN SHERRY AND JOHNSON LLP . SUITE eoa. THE PROFESSIONAL BUILDING. 65 E. ELIZABETH AVENUE. B'ETHLEHEM, PA 18016-6506 " - .L, ~ ;.,~;;" n..O(./'{U() ~ I~ property, and the nature and amount of consideration, if any given for any transfer of property. 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by. the defendant or in which L- (, Y 3 11 ~~CI'-( .fJ)S/(.Y~J'-/ ~ defendant held or claimed any ~ Ter-r#- J '}Itv('--- L:.f-' Answer: . If so, please provide particulars so far as relevant regarding that property by setting forth (without limiting generality), its nature, amount value, identifying information, account number, file number, accompanying documentation, all persons holding legal title, all persons who own same or claim a right to same, its status, the names and addresses of any persons taking part in any relevant transactions, the specific amount or the value of the property, the location of any property, and the nature and amount of consideration, if any given for any transfer of property. 59663.1 HECKER BROWN SHERRY AND JOHNSON LLP . SUITE 800 . THE ,PROFESSIONAL BUILDING. 65 E. ELIZABE:TH AVENUE. BETHLEHEM, PA 18018-6506 -~ " ]. . ~ .- "''''llt~. ll<,.6/- I'f!lo q,~ T........ 4. At the time you were served or at any subsequent time did you hold as fiduciary any pronerty in wIYch the defendlFlt had an intr/.es!1, _~J ~ Ie. 'f-j"""t-J-~ Y) --r- ~ T~ r""""" -,-. Answer: . If so, please provide particulars so far as regarding that property by setting forth (without limiting generality), its nature, amount value, identifying information, account number, file number, accompanying documentation, all persons holding legal title, all persons who own same or claim a right to same, its status, the names and addresses of any persons taking part in any relevant transactions, the specific amount or the value of the property, the location of any property, and the nature and amount of consideration, if any given for any transfer of property. 6{ jJ/l. 59663.1 HECKER BROWN SHERRY AND JOHNSON L.LP . SUITE 800 . THE rROFESSIONAL BUILDING. 65 E. ELIZABETH AVENUE. BETHLEHEM, PA 18018-6506 L .---'-'M . "" ":nti . . 'k.D/- /'f'ffIJ ~/~ 5. At any time before or after you were served did the defendant transfer or deli~er any property to you ~r to ~y person or place }lUrsuant to your direction or consent and If so, what was the consIderatIOn therefor? JV (;If- . Answer: . If so, please set forth particulars in so far as relevant regarding any such transfer, delivery or property, including, without limitation, the dates of any such transfers or deliveries, the names and addresses of any persons taking part in any relevant deliveries or transactions, the nature and amount of any consideration, if any, given for any transfer or delivery or property, any account or file number, the nature of any transaction, delivery of property, the location of any property, the specific amount of any debt, the value of any such property, any accompanying documentation, the nature of any property, the status of any property, and all persons in possession of same or who claim ownership or any other rights in same. 59663-1 HE:CKER BROWN SHERRY AND JOHNSON Ll.P. SUITE 800. THE iROFESSIONAL. eUILDING. 65 E. ELIZABETH AVENUE. B,ETHLEHEM. PA 18018-6506 .~ " ~~"~ ,~.~ - ell;., L "~, ',~~ 'JU.,.6f./'f'61, ~ llA-. 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant or to any person or place pursuant to th~fefendant's direction or otherwise discharge any claim ofthe defendant against you? t1fr Answer: . If so, please set forth particulars, in so far as relevant, regarding any such payment, transfer, discharge, delivery, property, or claim, including, without limitation, the dates, the names and addresses of all persons taking part in same, the nature and amOlmt of any consideration, if any, given, any account or file numbers, the nature of any relevant transaction or claim or property, the location of any money or property, the specific amount of any debt or claim, or money, the value of any claim, money or property, the nature of any money, claim or property, any accompany documentation, identification of any money, claim, property, payment, transfer, or delivery, and all persons who own, possess, or claim rights to any such monies or property. 59663.1 HECKER BROWN SHERRY AND JOHNSON l.LP. SUITE 800. THE fROFESSIONAL BUILDING. 65 E. ELIZABETH AVENUE' BETHLEHEM, PA 18018-6506 " .. Date: 59663.1 ~h/)/ 0 I I f "nL' ~- ; , -, ~ ; " "- "-, ~ ~; 1'lt,.61- 1m s:'..>, r:. 71'.J'~ (jl~" Gabre' .1,,", ?"y'!/t.t, ParalA . .bj rw)e,J?~witt, Mffi ....~ eg~I,~/;oaw Dept. One !M~tlif? 117.s."So. . New ~l\~;.S;~lsll.R>~enue ew lork, NY 10010 ") __ I...)~ 01 r/tyJ "\.f.... -51 t- ;, il ( HECKER BROWN SHERRY AND JOHNSON LLP Ii. ~ . uciw, Esq. HECKER BROWN SHERRY AND JOHNSON L.LP . SUITE 800 . THE FjROFESSIONAL BUILDING. 65 E. ELIZABETH AVENUE. BETHLEHEM, PA 18018-6506 By: 1"!i.~iii~wjfii~~m1ii<;;Ji!&i~~~~![i't!itJiJ";jr<-.,j;.~_",;,,~bi~~l,,,,-~~........-(1 ~"J. ~.~"'~.~...........~, ~~~, ~_. -~ ~. - h". ~~^. "- , -~ 'c<' ... . .- () C') C" '0. \] ~ :?~.-.. :';b~ l1i-l".-! -.:-' ,"'Wc-:., 2:J_' ~, "~('" ;~ ~-=- I ~ _' : ; ~~~,'"f,-~.q.... V"~ .;C 2 ro: ,'0" Q. . '~'c;/o./_ :"'----'--"'if ~ ...-!:" --~ ?E :.=2 ~~;;;:_'" ~~ '~~'~ )>~~: u~~ (~~ ~ :z ,,- (fl.);! 0 --~'/ ---1 ~, ,':D;0 .x<;,<J. .-< ~ \ -s: ,,/ '" ~.d- 1"\' ~ ~ -;/ ;/ I" ~ , , _... i ~,....~, i '-,- '~ , ~,~,,, I hereby certify that I have served a copy of this paper upon all other parties or their attorneys by: ----1L- egular Mai l rtified Mail Ot r: BY: To: Plaintiff(s) You ar.e hereby notified to plead to the en osed Preliminary Objections within twenty 0) days service hereof 0 a default. y be entered i ou. SPECTO DON & ROSEN, P.C. By: Lary I. Zucker, Esquire Identification No. 61072 John T. Asher, III, Esquire Identification No. 76957 Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840/(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, Inc. ------------------------------------------------------------------- ------------------------------------------------------------------- PAULETTE HARRIS COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. 01.1403 Civil CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants ----------------------------------------- ----------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. TO PLAINTIFF'S COMPLAINT Defendant, Carlisle Sports Emporium, Inc., by and through its attorneys, Spector Gadon & Rosen, P.C., hereby preliminarily objects to plaintiff's Complaint and, in support thereof, avers as follows: ;'-^" . n_Wi. lIL..Jj1 L__. ___L_ -, -''''''<!'fm'll_'",- " '. 1. This matter arises from an incident which allegedly occured on or about March 13, 1999 when plaintiff was allegedly injured at defendant, Carlisle Sports Emporium, Inc.'s facility in Carlisle, Pennsylvania. 2, On or about March, 2001, plaintiff filed a Complaint against Defendants, Carlisle Sports Emporium, Inc., John Doe, Employee and Travis Best on or about March 12, 2001. A true and correct copy of plaintiff's Original Complaint is attached hereto as Exhibit "A", 3. Upon information and belief, service was made upon defendant, Carlisle Sports Emporium on April 3, 2001. 4. The statute of limitations in this matter expired on March 13, 2001 I. PRELIMINARY OBJECTIONS IN THE NATURE OF A MOTION TO DISMISS FOR LACK OF JURISDICTION FOR IMPROPER SERVICE 5. Defendant, Carlisle Sports Emporium, Inc. incorporates the foregoing paragraphs as though same were set forth herein at length. 6. Plaintiff's complaint names "John Doe, Employee" as a defendant in the within action. See Exhibit "A." "John Doe, Employee's" address is listed as that of Carlisle Sports Emporium, Inc., 36 Kelly Drive, Carlisle, Pennsylvania, 17013. 7. Upon information and belief, no service was made upon "John Doe, Employee" at 36 Kelly Drive, Carlisle, Pennsylvania. 8, Pursuant to Pa.R.C.P. 401 service must be made within thirty (30) days after the issuance of a writ or the filing of a complaint and if service is not made, then the complaint or writ may be reinstated or reissued. -2. . , " . >. ~'-N,! -iliIUli' :.~ " 9. Upon information and belief, plaintiff has neither reinstated her complaint nor made service upon "John Doe, Employee." WHEREFORE, Defendant, Carlisle Sports Emporium, Inc. respectfully requests this Honorable Court enter an order dismissing plaintiffs complaint against "John Doe, Employee" for improper service. II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO "JOHN DOE, EMPiLOYEE" BEING NAMED AS A PARTY AND ALL COUNTS , , RELATIVE TO SAID DEFENDANT AND FOR LACK OF SPECIFICITY TO PLAINTIFF'S COMPLAINT 10. Defendant, Carlisle Sports Emporium, Inc. incorporates the foregoing paragraphs as though same were set forth herein at length. 11. Plaintiffs' complaint names "John Doe, Employee" as an agent, servant and/or employee of defendant, Carlisle Sports Emporium, Inc. and avers causes of action against "John Doe, Employee" in counts II and IV of her complaint. See Exhibit lOA." 12. Plaintiff further avers that defendant, Carlisle Sports Emporium, Inc. acted through its "agents, servants, workmen, employees and/or representatives" in paragraph of 6 of her complaint. See Exhibit "A." 13. Plaintiff fails to name the employee or employees she has sued as "John Doe, Employee" in her complaint. 14. Pursuant to PaRC.P. 1019, the material facts upon which a cause of action are based must be stated in concise and summary form. 15. Plaintiff has failed to identify any employee of defendant who is allegedly liable to plaintiff in this action. . .3- "_""n~~""",,"- ,I. I , -,.. , . '-'~- 'iIi!a1f~ '. 16. By naming "John Doe, Employee" as a defendant, plaintiff may seek to amend her complaint at a point beyond the statute of limitations to name an individual, or as paragraph 6 suggests, individuals, beyond the expiration of the statute of limitations. 17. Amending a complaint to add a new defendant after the statute of limitations is not permitted. Anderson Equipment Co. v. Huchber, 690 A.2d 1239,456 Pa. Super. 535 (1997). 18. If plaintiff did not know the identity of individuals prior to the expiration of the statute of limitations, plaintiff could have filed a Writ of Summons and sought to take pre.complaint discovery pursuant Pa.R.C.P. 4005 or upon motion to this Court. 19. Defendant should not be prejudiced by plaintiffs failure to comply with the rules and attempting to amend their complaint at a later date after the expiration of the . statute of limitations. WHEREFORE, defendant, Carlisle Sports Emporium, Inc., respectfully requests this Honorable Court Strike plaintiffs complaint against, defendant, "John Doe,Employee" and strike counts II and IV as they relate to "John Doe, Employee" with prejudice. III. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER AND MOTION TO STRIKE THE AVERMENTS OF RECKLESSNESS SET FORTH IN PARAGRAPHS 10 AND 15(C) OF PLAINTIFF'S COMPLAINT 20. Defendant, Carlisle Sports Emporium, Inc. incorporates the foregoing paragraphs as though same were set forth herein at length. -4. r'" . . , '- ~'--""" --...,." . '. 21. In paragraph 10 of plaintiff's complaint, plaintiff avers that" . . . defendant employee, Jonn Doe, failed to prevent defendant, Travis Best, from operating his go. cart in a dangerous and reckless manner, on the aforementioned go.cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner." See Exhibit "A." 22. In paragraph 15(c), plaintiff avers that the negligence and carelessness of defendant, Carlisle Sports Emporium, Inc. consisted of, inter alia, "failure to take reasonable :precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees." 23. By asserting allegations of recklessness against defendant and that defendant failed to prevent reckless conduct, plaintiff is preserving a claim for punitive damages against defendant, Carlisle Sports Emporium which is unsupported by the averments set forth in the complaint. 24. Punitive damages are only warranted for conduct that is malicious, wanton, reckless, willful or oppressive, ie. conduct that is more serious than the commission of the underlying tort. Feld v. Merriam, 506 Pa. 383, 483 A.2d 742 (1983); see also Franklin Music v. American Broadcasting Companies, 616 F.2d 528 (3d. Cir. 1979). 25. Plaintiff's complaint merely alleges ordinary negligence against defendants and does not set forth facts which in any way can be construed to constitute outrageous behavior, evil motive or reckless indifference to the rights of others as required under Pennsylvania law. .5- .,- , ~, .~ ,. -~- -" ... -~~ '. 26. Defendants have failed to meet the specificity requirements of Pa.R.C.P. 1019, which requires that the "material facts upon which the cause of action is based be set forth in concise and summary form." 27. On or about April 25, counsel for plaintiff agreed to strike the allegation of recklessness appearing in paragraph 15(c) of plaintiffs complaint. This agreement is memorialized in correspondence dated April 25, 2001 and stipulation, both of which are attached hereto as Exhibit "B." WHEREFORE, Defendant, Carlisle Sports Emporium, Inc., respectfully requests that the allegations of recklessness contained in paragraphs 15(c) and 10 from plaintiffs complaint with prejud Respectfully submitted, BY. -6. . , I : ~ . ,j ,j;', ,,- " .., - '-~ - :t._,~ VERIFICATION I, John T. Asher, III, Esquire, is attorney for defendant, Carlisle Sports Emporium, Inc., and verify the statements made in the foregoing Preliminary Objections, are true and correct to the best of my knowledge, information and belief. I understand that statements made herein are subject to penalties for unsworn falsification to authorities pursuant to Dated: May 8, 2001 """" ~ ,~ ",._~ ~~-~, "~ '"",-,",-- ~- , I ~ ~ , ~ " ":.- 1'1; -_' ,,1' Ie , ~, KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 TIDS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Aven!le Bronx, New York 10473 Plaintiff, : COURT OF COMMON PLEAS CUMBERLAND COUNTY CML ACTION vs. O/./'F03 n.,::l TERM,2001 CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE C~mreS~rtsEm~rium,fu~ 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. Docket No. COMPLAINT (") 0 0 ~-; -rt <~ . -, ;:: ~ -' "'; {~: : .- ~ ;:'-::-:1 ,"1 .2 . :., , (;; I'~ (j - ~ c-.:: c.. ~~>. -....:.- "'" 5~ c: -- , -71 -'00 C""5 :;:.- (~ /:.- ~ '....') rn :S -~ r" '" -< m ::n -< Comolaint Civil Action: Miscellaneous Nonce You have been sued In coun. If you wish to defend against the claims set fanh In tho following _, you must take action within twenty (20) days after this complaint and notfce are served, by entering. wiittan appearance penonelly or by attorney and filing in writing with the court your defenses or objections to the claims set forth .I",t you. Vou are warned that If you faU to do sa th_ case may proceed without you and a judgment may-be entereci lI9Ilnst you by the court without further notice for any money cfalmed in the complaint or for any other claim or relief requested by the plaintiff. You may Jose money or propertY or other rights Impo.....t to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GD TO OR TELEPHONE THE OFFiCE SET FORl'H BELOW TO FINO OUT WHERE YOU CAN GET LEGAL HELP. __ C<.\'i\k-~,.".J CD..'1~~ & ~;"~ic', -- 2. t. UoeA-..... 8-. City ~ G.,\iskJ <t=>A nD\~ ToI. No. (111 ) ~t - 31~<q .~ ~. ~~-,-.. ~J . -~-~ iF, -~ . ,_1_ v-, ."", . I.. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY 'CML ACTION vs. TERM, 2001 CARLISLE S~ORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Ine. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants.. Docket No. : COMPLAINT Comolaint Civil Action: Miscellaneous 1. Plaintiff, Paulette Harris, is an adult individual, residing at 1880 Lafayette A venue, in Bronx, New York. 2. Defendant, Carlisle Sports Emporium, Inc., is a business, company, entity, partnership, franchise, fictitious name, proprietorship or corporation existing and/or qualifYing under the laws of the Commonwealth of Pennsylvania, with a registered office for acceptance of service or principal place of 1 . .~ , ...,-. - ""==.- ~~ - , , -. .""Jil.j!.g: I' . . . business at 36 Kelly Drive, Carlisle, in the Commonwealth of Pennsylvania. 3. Defendant, John Doe, is an adult individual and employee of Carlisle Sports Emporium, Inc., located at 36 Kelly Drive, in Carlisle, Pennsylvania. 4. Defendant, Travis Best, is an adult individual, residing at 2569 South Avenue, in New York, New York. 5. At all times relevant and material, defendant, John Doe, was an agent, servant lII!d/or employee of defendant, Carlisle Sports Emporium; Inc., acting at all times within the course and scope of his employment. 6. At all times relevant and material to this Complaint, defendants did act through their agents, servants, workmen, employees and/or representatives, said individuals acting within the course and scope of their employment and/or agency. 7. At all times relevant and material to this Complaint, defendant, Carlisle Sports Emporium, Inc., owned, operated, leased, managed, controlled and/or had dominion over the premises commonly known as Sports Emporium, located at 29 S. Middlesex Road, in Carlisle, Pennsylvania (the "Premises"). 8. At all times material and relevan.t hereto, there was an obligation on the part of the afoteSaid defendants, to supervise, maintain, inspect, clean and otherwise be responsible for the Premises, including the roller skating rink area of the Premises, so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 9. On or about March 13, 1999, at or about 9:30 p.m., plaintiff, Paulette Harris, was a business invitee on the Premises, on or about the go-cart track area of the Premises. 10. At the aforementioned time and place, plaintiff, Paulette Harris, was operating a go-cart, on 2 ~.' . ~ __""",' c, ' '-"'-' ~'iliJft;. I" the go-cart track, when suddenly and without warning, defendant employee, John Doe, failed to prevent defendant, Travis Best, from operating his go-cart in a dangerous and reckless manner, on the aforementioned go-cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner, thereby causing plaintiff's go-cart to be violently struck by defendant, Travis Best's, go- cart, causing plaintiff to suffer severe and grievous injuries. 11. At all times relevant hereto, defendants herein owed a duty to supervise, manage, train. and otherwise be responsible for the conduct of their employees, to provide a safe and hazard free environment and otherwise be responsible for the aforesaid premises so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 12. The circumstances under which plaintiff, Paulette Harris, was injured were such that said injuries to plaintiff could not have occurred on the Premises except by defendants' negligence. 13. The aforesaid accident resulted solely from the negligence and carelessness of defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, and in no manner whatsoever to any act or failure to act on the part of plaintiff, Paulette Harris. . COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM. INC. 14. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through thirteen, inclusive, as though same were set forth herein at length. 15. The ncgligence and carelessness of defendant, Carlisle Sports Emporium, Inc., consisted of the following: (a) failing to provide safe conditions for business invitees, patrons and/or members of the public on the Premises; 3 ","'" ~ ,~.u_...L_"._....~' ~~~ 1. ~".~'" I." (b) failing to supervise, train, review or regulate the conduct of Sports Emporium employees on the Premises, said failure to supervise, train, review or regulate the conduct of Sports Emporium employees existing for a long time prior to the date oftbis accident; (c) failure to properly and adequately train Sports Emporium employees, in particular the aforesaid unsafe conduct of the employee, John Doe, of Carlisle Sports Emporium, Inc,; (d) failure to take reasonable precautions against the dangerous, reckless and unsafe cond1,!ct of the Sports Emporium employees; (e) failure to properly and adequately hire and/or instruct the agents, servants, workmen, employees and/or representatives, of defendant herein, as to the safe and proper procedures for supervising, training, and regulating the conduct of Sports Emporium employees which caused plaintiffs injuries; (f) failure to use reasonable care in the construction, maintenance and operation of the Premises, in particular, the go-cart track area; (g) failure to provide and maintain proper supervision of the Premises; (h) failure to provide and maintain proper safety precautions at the Premises; (i) failure to furnish a reasonable number and distribution of safety personnel and safety equipment at thePremises; G) failure to provide and maintain proper training procedures at the Premises; (k) failure to furnish a reasonable number and distribution of training personnel and training equipment at the Premises; and (I) negligence per se. 4 '_~>".L. _,..b.. . I" ~ ~ "~ ,"- ., I ;;'~;.~l' I" WHEREFORE, plaintiff, Paulette Harris, demands damages against defendant, Carlisle Sports Emporium, Inc., in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT n PAULETTE HARRIS vs. JOHN DOE 16. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through fifteen, inclusive, as though same were set forth herein at length. 17. The negligence of the defendant, John Doe consisted of the following: (a) failing to properly and adequately conduct himself when interacting with busineSs invitees, patrons and/or members of the p1.\blic, in particular, plaintiff: Paulette Harris; (b) failing to use due care and to employ reasonable skill in the performance of his job duties; (c) negligently and carelessly inflicting bodily hann upon the plaintiff; (d) negligently and carelessly allowing another person to continually, operate a go-cart in a dangerous and reckless manner; and (e) failing to regard the rights, safety and lawful, position of plaintiff at the point aforesaid. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendant, John Doe, in a sum not in excess of $50,000.00, plus interest, costs, and attorneys' fees. COUNT m PAULETI'E HARRIS vs. TRAVIS BEST 18. Plaintiff, Paulette Harris, incorporate by reference thereto, paragraphs one through seventeen, inclusive, as though same were set forth herein at length. 19. The negligence and carelessness of defendant, Travis Best, consisted of the following: (a) failing to properly operate and control said go.cart; 5 '4~ ~ "l , Hi h' - ,'.. ~-~ : ;. ;E-, If. (b) operating said go-cart at an excessive and unsafe rate of speed under the circumstances; (c) operating said go-cart in a dangerous and reckless manner; (d) failing to maintain a proper and adequate lookout; (e) failing to follow and observe traffic patterns and conditions; (t) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid; (g) causing a vehicular collision; (h) failing to properly and adequately maintain said motor vehicle; (i) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages of defendant, Travis Best, in a sum not in excess of$50,000.00, plus interest, costs and attorney's fees. COUNT IV . PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM. INC.. JOHN DOE and TRAVIS BEST 20. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through nineteen, inclusive, as though same were set forth herein at length. 21. As a result of this accident, plaintiff, Paulette Harris, has suffered injuries which are or may be serious and permanent, including, but not limited to cervical strain and sprain, lumbosacral strain and sprain, right shoulder strain and sprain, right brachial plexus injury, radiculopathy, post-traumatic headaches, posHraumatic stress disorder, myofascitis, cervalgia, lumbalgia and thoracicalgia, 22. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive 6 --.'--, ... ~ " J . , ~ ~ <. '" ~ "...-"~\> I' and undergo medical attention and care for her injuries, and to incur various expenses for said care, and she may be obligated to continue to expend such sums and to incur such expenses for an indefinite period of time in the future. 23. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo reasonable and necessary medical treatment and rehabilitative services for the injuries sh~ has suffered, and to incur various expenses for said treatment and services, and she may incur var:.ious reasonable and necessary future medical expenses from the injuries sustained, and defendants are liable for all of the same. 24. As a further result of this accident, plaintiff, Paulette Harris, has or may suffer severe loss and impairment of her earning capacity and power, and may continue to suffer such a loss of an indefinite time in the future. 25. As a further result of this accident, plaintiff, Paulette Harris, has been unable to attend to her daily chores, duties and occupations, and may be unable to do so for an indefinite time in the future. 26. As a direct result of the accident, plaintiff, Paulette Harris, has and may continue to in the future incur other financial expenses or losses to which she may be otherwise entitled to recover. 27. As a further result of the accident, plaintiff, Paulette Harris, has suffered severe physical pain, aches, mental anguish, and humiliation, inconveniences, and loss of life's pleasures, and she may continue to suffer the same for an indefinite time in the future. . 7 ,_=.u ,- '" ,~_.~~_ o._.'~'~'. j,. . ",~b. '-" J. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, jointly and/or severally, in a sum not in excess ofSSO,OOO.OO, plus interest, costs, and attorney's fees. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~M~ Marina Kats, Esqui e Attorney for Plaintiff 8 E COpY FROM RECORD rT~mony whereof. Illera unto set my IIand in as... t C' .,,~Ift Pa ~'!il tile s.aaI of said Court ~ il.1I....... : I ::_- 1;.;" ot~~'J.~ ~:) Ihli l.;Le' n. " ,AJ . ~/-1 ProtltOootarf ,- . - ~"",.. ~ ."~. .' ,. , , . r ~UI'!.L,;,o,~ " VERIFICATION Rl~tl<~ ~t7C , hereby verifies that he/she is the plaintiff herein and that the facts set forth in the foregoing pleading are true and correct to the best, oChis/her knowledge. information and belief. This statement is made subjec to the penalties of l8 P A C.s. Date: \Jh..~~, 2., 200J " ~- -- . ~ """ . , ,. -._,J;..._ -'}l '. - SPECTOR GAllON & ROSEN, P. C. NEW JERSEY OFFICE: 309 FELLOWSHIP ROAD P.O. BOX 1001 MOORESTOWN, NJ 08057 (856) 778-8100 FAX (856) 722-5344 ATTORNEYS AT LAW SEVEN PENN CENTER 1635 MARKET STREET 7TH FLOOR PHILADELPHIA, PENNSYLVANIA 19103 DIRECT DIAL NUMBER (215) 241-8888 FAX (215) 241-8844 [215] 241-8847 E-MAIL WWW.LAWSGR.COM iasherlallawsl!r .com April 25, 2001 VIA FEDERAL EXPRESS Rick Brown, Esquire Kats, Jamison, VanderVeen & Associates 25 Bustleton Pike Feasterville, PA 19053 Re: Paulette Harris v. Carlisle Sports Emporium, Inc., et al. CCP, Cumberland Cty., No, 01-1403 Our File No. 45434-001 Dear Mr. Brown: This correspondence is to confirm that you have agreed to strike the word "reckless" from paragraph IS D. of Plaintiff's Complaint by Stipulation. I am according enclosing herewith a Stipulation for your review and signature, If you wonld kindly sign this Stipulation and return it to me, I will then forward this on to the Court for filing. Also, I am writing to confirm that you have agreed to provide me with a 2 week extension oftime in which to respond to Plaintiff's Complaint. I will file a response to plaintiff's Complaint within 2 weeks or by May 9, 2001. Also, as I advised in our telephone conversation, I spoke with Michael David, Esquire regarding the civil action in the Federal Court. According to Mr. David, he is your referring counsel and has filed this action to preserve the Statutes of Limitations. It is also my understanding from speaking with him that he will be withdrawing this action. Should you have any questions, kindly feel free to contact me. JT A \nt ,-. , ~ .' - I: ",",-, , ,;'. ,; .J!. '. SPECTOR, GADON & ROSEN, P .C. BY: John T. Asher, 111, Esquire 1635 Market Street, 7th floor Seven Penn Center Philadelphia, PA 19103 (215) 241-8888/(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, Inc. ================================~=== PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs, v. : 01-1403 CIVIL TERM, 2001 CARLISLE SPORTS EMPORIUM and JOHN DOE, EMPLOYEE STIPULATION and TRAVIS BEST Defendants. ------------------------------------ ------------------------------------ It is hereby agreed by and between between counsel for Plaintiff, Rick Brown, Esquire, and counsel for Defendants, John T. Asher, III, Esquire, that the word "reckless" in subparagraph 15 D. of Plaintiff's Complaint is stricken from Plaintiff's Complaint with prejudice. Dated: KATS, JAMISON, VANDERVEEN & ASSOC. SPECTOR GADON & ROSEN, P.C. John T. Asher, III, Esq. Attorney for Defendants Rick Brown, Esquire Attorney for Plaintiff ,- L ~ " "c ~ :1';," 04/26/2001 15:48 FAX SPECTOR GADON & ROSEN 141001 , . '. ********************* *** TX REPORT *** ********************* TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PGS. SENT RESULT 2467 45434001#12153968388 04/26 15:47 00'53 3 OK SPECTOR GADON & ROSEN 1635 MARKET STREET - 7th Floor Philadelphia, Pennsylvania 19103 (215) 241-8888 Fax #: (215) 241-8844 FACSIMILE COVER SHEET DATE: April 26, 2001 CLIENT/MATTER: 45434-001 TIME: FAX NUMBER: (215) 396-8388 TO: RICK BROWN, ESQUIRE FROM: JOHN T, ASHER, ill, ESQUIRE TOTAL NUMBER OF PAGES SENT: (Including this cover page) ~ MESSAGE PLEASE CONFIRM RECEIPT. ~iiJl!i~~~n,~Iiii",&!,:jO\l;l-"~I&;!iiiWi;m~~~~'\!oH'llo',0~'i<t!;",1"~;;';"',,;-;,,"-",ru~'-'1#!@.~~~!GhllIiI/;lr1il"~~ - ~". "'~, <~"~,,,,~~ , ,,~-,,~ .~,,- ~ "'- --'-I!j-~'=':""' .- 1'-.' ~--" " '" " 'I .' () 0 0 C --j I -::;0- om-l :~ ,:; n::i '''1 ;E rn -,< f i"':::: /:. \~; ~ :i; \;;::. .- .- , ~,r r~ -c ':~~: 3;; ~ --"'1 2: () ~ L:S 5" C) ~ 0 , n r- '-- ~ z: ';,.) :< ::0 ..,- -< ~ . ",~ 'tlitl' ~ .-1 ,;". ,-, "~",- ", .' , SPECTOR, GADON & ROSEN, P.C. BY: John T. Asher, III, Esquire 1635 Market Street, 7th floor Seven Penn Center Philadelphia, PA 19103 (215) 241-8888/(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, Inc. ------------------------------------ ------------------------------------ PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs, v. : 01-1403 CIVIL TERM, 2001 CARLISLE SPORTS EMPORIUM and JOHN DOE, EMPLOYEE ENTRY OF APPEARANCE and TRAVIS BEST Defendants. ------------------------------------ ------------------------------------ TO THE PROTHONOTARY: Kindly enter our Appearance on behalf of Carlisle Sports Emporium, Inc., in connection with the above-captioned matter. Respectfully submitted, Dated: May 8, 2001 . Asher, III, Esquire ( u_~ ~~ ~ ~ " .n~," ~ no . """'"~ ~h,- , . PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) PAULETTE HARRIS (Plaintiff) vS. CARLISLE SPORTS EMPORIUM and JOHN DOE, EMPLOYEE and TRAVIS BEST (Defendants) No.: 1403 Civil Term, 2001 1. State matter to be argued, (i.e., plaintiffs' motion for new trial, defendants demurrer to complaint, etc.) Defendant, Carlisle Sports Emporium, Inc.'s Preliminary Objections to Plaintiff's Complaint. 2. Identify counsel who will argue cases: (a) for plaintiff: Address: Chris Houdock, Esquire Kats, Jamison, Van Dermeer & Associates 25 Bustleton Pike Feasterville, Pennsylvania 19031 (b) for defendant: Address: John T. Asher, III, Esquire Spector Gadon & Rosen, P.e. 1635 Market Street, 7th Floor Philadelphia, Pennsylvania 19103 3. I will notify all parties in writing within two (2) days that this case has been listed for argument. {mod, ~) 4. Argument Court Date: July 25, 2001 F: \45434\001 \Praecipe.argument. wpd !~Il~~~~,",~~~iIi";!oiit"-;i,~',,,,,~,~gili''';&<ll!)h;.1i~~l~'''!fuil''l!il~~-~ F{ I Rnf , ~ ,~ c_ . '~ 'I 1'1ltl'H~j~a:lI ~l .~ I , (') 0 C) c: ~n g: <- ,-"; "'Om c:: =--!~ ----;-j rnfT! z "":1-"': z:n Z~~- :;{\~ (.0~ ~t~" v ~" -0 _~c .T, ;5>c ;:-'" -"1 z-< -"",. .~(") S;;L 'i? -ofn c ~ Z ':::> :~ -.l ~ ~ , ~ " ; , < ,j">,~ - _J w --"-~; ;;;. ,'",~~,' KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Paulette Harris, by and through her attorney, Marina Kats, Esquire, hereby requests this Honorable Court to enter an Order overruling defendant, Carlisle Sport Emporium, Inc,' s Preliminary Objections, and in support thereof avers the following: 1. Admitted. 2. Admitted. By way of further answer, pursuant to the Pennsylvania Rnles of Civil Procedure, plaintiff's Complaint contained a Notice to Plead stating that: 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 the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claim set forth against you. See plaintiff's Complaint (emphasis added), Accordingly, defendant was required to file an Answer or Preliminary Objection to plaintiff's Complaint within twenty (20) days of service. 2 ~ I~ , .~ J. "'- ,,~ ~. ~~ ,'~, '."<Ml"~"_,(,',:,<" ~ -'. 3. Admitted. By way of further answer, having been served on April 3, 2001, defendant was required to file an Answer or Preliminary Objection to plaintiff's Complaint within twenty (20) days of service, i.e., by April 23, 2001, Nevertheless, by April 23, 2001, defendant had neither filed an Answer or Preliminary Objections to plaintiffs Complaint. Rather, on April 25, 2001, defendant requested an extension oftime to respond to plaintiffs Complaint and as a professional courtesy, plaintiff granted defendant a two (2) week extension of time to Answer the Complaint only. Thereafter, instead of filing an Answer to the Complaint, on May 8, 2001, defendant filed Preliminary Objections contrary to the agreement. Therefore, pursuant to the Peunsylvania Rnles of Civil Procedure, defendant's Preliminary Objections should be overruled as untimely and defendant should file an Answer to plaintiffs Complaint. 4. Admitted. 5. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 6. Admitted. By way of further answer, defendant has never disclosed the name and address of defendant's employee who was working at the time of the incident. In fact, despite having several conversations with counsel for plaintiff to date, defendant still has not disclosed the name and address of defendant's employee, 7, Denied, It is specifically denied that no service was made upon defendant's employee, On the contrary, on April 3, 2001, the Sheriff of Cumberland County served plaintiffs Complaint upon defendant at the only known address for the employee, i.e., 36 Kelly Drive, Carlisle, PA 17013. Having avoided disclosure of its employee's name, defendant can not argue that plaintiff should have known the home address of its employee. Without question, defendant should not benefit from its avoidance tactics in these preliminary objections. 3 III -,,'- ' j " ': . ~' "",'j,,"' :~"--.kn3~'~'-'_,' -c' <. .~,~ By way of further answer, under the theory of respondeat superior, defendant is responsible for the actions of its employee and has a duty to defend its employee. As it has a duty to defend its employee, service of the complaint at only known address for the employee, i.e., 36 Kelly Drive, Carlisle, PA 17013 was proper. In other words, defendant is on notice of the claims it must defend for itself and its employee and shonld simply Answer the Complaint. On the other hand, should defendant deny that it has a duty to defend its employee and therefore, may not accept service, then defendant has no standing to object to service upon the employee. Indeed, in reviewing the docket in this matter, counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. Accordingly, if defendant admits that it has a duty to defend its employee for conduct arising out ofthe course and scope of employment, then service was proper upon its employee at 36 Kelly Drive, Carlisle, PA 17013, If defendant denies that it has a duty to defend its employee and can not accept service for its employee, then defendant does not have standing to object to service upon its employee. Defendant can not have it both ways. Under these circumstances, the Court should overrule the preliminary objections to service upon defendant's employee. 8. Admitted. 9. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, the Sheriff of Cumberland County served plaintiff s Complaint upon defendant's employee at the only known address, i.e., 36 Kelly Drive, Carlisle, PA 17013. More importantly, counsel for defendant has no standing to file this Preliminary Objection to service upon defendant, John Doe, Employee. The objecting counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. and not for any other defendant, Accordingly, the 4 .1 11 Ii ~ '-"-"-~,' -'" "', ~ ,; ,'or,,, ," J'e' -- . ~,'-- '-~,,.;, - - " "'0_,,0_,,, ,;--;r'_,'_k,_~:_O:, ~,,;;; "k,; objecting counsel cannot file objections for parties it does not represent In short, defendant has uo standing to object to service upon the employee. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiffs Complaint. 10. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length, II. Admitted, By way of further answer, Count IV of plaintiff's Complaint also avers causes of action against defendant, Carlisle Sports Emporium and defendant, Travis Best. 12. Admitted. 13. Denied. It is specifically denied that plaintiff failed to name defendant's employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint Under the Peunsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See PaRC.P. 1033; See also Goolsby v. Papanikolua, 161 Pa. Commw, 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624, 657 A.2d 493 (1995). As quoted from Goodrich Amram's Standard Peunsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee ofthe defendant pizza shop, the plaintiff would be permitted to amend the complaintto actually name the defendant. Goodrich Amram 2d, Standard Peunsylvania Practice 2d, S I 033: 19 (emphasis added), 14, Admitted. 5 I II " ~~ I i , " -'.' , " ~ ";-, , .,' I "'," , ",,~,~", ,,"~'. ,","''; '~~,;,c,,,,~~" ',-- >-., , 15. Denied. It is specifically denied that plaintiff failed to identify defendant's negligent employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. As stated above, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to identify the unknown employee. Moreover, it is disingenuous for defendant to complain that plaintiff has not identified the employee while, at the same time, failing to disclose the identity of its employee, Under these circumstances, prior to any discovery, the designation of "John Doe" should not be stricken from the Complaint with prejudice. See Int'I Union, U.B.F.C.S.D.&D.W. v, Watkins, 417 Pa, 120, 207 A.2d 776 (1965) (preliminary objections denied where matters wonld necessarily be known only to the objecting party and secreted from the pleading party); Line Lexington Lumber & Millwork, Co, v. Pennsylvania Publishing Corp., 451 Pa. 154,301 A.2d 684 (1973) (plaintiff has greater leeway in pleadings where facts are within exclusive knowledge of defendant). 16, Admitted in part. Denied in part. It is admitted that plaintiff may seek to amend her complaint to change the designation of "John Doe, Employee" to the specific name of defendant's employee. It is specifically denied that, by doing so, plaintiff is adding a new party after the statute of limitations. Pursuant to Rule 1033 of the Pennsylvania Rnles of Civil Procedure, "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Pa.R.C.P, 1033 (emphasis added). According to the Pennsylvania Supreme Court, Pennsylvania courts should liberally permit amendments to complaints pursuant to Pa.R.C.P. 1033, Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981); Saracina v, Cotoia,417 Pa, 80,208 A.2d 764 (1965). The principle underlying this liberal policy in favor of 6 ^ -...;: ~ ~.. "--.--'-'",,," .-' ,,,,,,,,_'."-'-i '''''".'_. """"j'"" amendments lies with the desire of Pennsylvania courts to secure determination of cases based on merits rather than mere technicalities. Horowitz v. Universal Underwriters Ins., 397 Pa, Super. 473,580 A.2d 395, appeal denied 527 Pa. 610, 590 A.2d 297 (1990). 17, Admitted in part. Denied in part. It is admitted that the general rule is that a party is not permitted to add a new defendant after the statute of limitations. However, there are exceptions to the general rule, See e.g., Coatsman v. Alpha Racquetball, Inc., 40 Pa. D.& C.3d 89 (1984) (motion for leave to amend a complaint to include a new party after the applicable statute of limitations had run will be granted where defendants failed to provide notice of their denial of ownership ofthe property in question). Nonetheless, it is specifically denied that plaintiff is adding a new party beyond the statute of limitations. On the contrary, plaintiff has specifically named defendant's employee who was working the go-cart track on March 13, 1999 at 9:30 p,m. as a defendant in this action. Once defendant finally discloses the name of its employee, plaintiffs motion to amend the Complaint merely will ask the Court allow plaintiff to include the correct designation of defendant, John Doe, Employee, Pennsylvania courts generally will allow an amendment to correct the designation ofa party. See e.g" Zercher v. Coca-Cola USA, 438 Pa. Super. 142,651 A.2d 1133 (1994) (in order to secure determination of cases on merits, trial court should grant, whenever possible, petition to change name on pleadings); Hall v, Acme Markets, Inc., 110 Pa. Cmwlth, 199, 532 A.2d 894 (1987) (naming Commonwealth of Pennsylvania rather than Department of Transportation as defendant was mere technical defect that could be remedied by amendment). Accordingly, defendant's Preliminary objections should be overruled, 18. Admitted. By way of further answer, in the alternative, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John 7 Ii Ii - c, -.1'- - 0'''" .~". - " .'-'.- ,,;, ~ - ", - ;'; ,,', . ."'""-2'1 Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Goolsby, 161 Pa. Commw, 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624, 657 A.2d 493, As quoted from Goodrich Amram's Standard Peunsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, 91033:19 (emphasis added), 19, Denied. It is specifically denied that defendant would be prejudiced ifthe Court overruled these preliminary objections. On the contrary, defendant can not demonstrate any prejudice that could befall it if the Court overrules its objections and later allows an amendment It is clear that defendant was put on notice before the statute of limitations had expired that it would have to defend the actions of its employee in a suit by plaintiffs. In particnlar, defendant was put on notice that its employee had been negligent during the course and scope of his employment for defendant on March 13, 1999 at 9:30 p.m. at the go-cart track. Moreover, defendant's act of filing preliminary objections for its employee and defending the action demonstrates that defendant is on notice that the employee who was working the go-cart track on March 13,1999 at 9:30 p.m. has been sued by plaintiff in this action. Therefore, there can be no claim of undue prejudice on the part of Defendant which would prevent the Court from overruling these preliminary objections and later, granting leave to amend the Complaint WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiffs Complaint 8 " JL.-,.;<,. , ,~' , _, c "_' ~L ';"';,,;,:,~,,- ,-,~,;;;;",;'.~) ii)';;r ,',', ,nL..; 20. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 21. Admitted, 22. Denied. It is specifically denied that paragraph l5( c) alleges "dangerous, reckless and unsafe conduct" on the part of defendant. On the contrary, plaintiff alleges "dangerous, reckless and unsafe conduct" on the part of defendant in paragraph 15(d), 23, Denied. It is specifically denied that plaintiff is asserting a claim for punitive damages against defendant. 24. Admitted. By way of further answer, punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or reckless indifference to the rights of others. L. McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436, (1986), In assessing punitive damages, the trier offact can properly consider the character of defendant's act, the nature and extent ofthe harm to plaintiff that defendant caused or intended to cause and the wealth of Defendant. Id. 25, Admitted. 26. Denied. It is specifically denied, however, that plaintiff's Complaint violates the specificity requirements of Rule 1019 of the Pennsylvania Rules of Civil Procedure. On the contrary, plaintiff's Complaint sets forth the material facts with sufficient specificity to appraise defendant of the claims and enable it to prepare a response and a defense. The sufficiency of the facts alleged in a complaint are determined by reading the complaint in its entirety and not by basing an objection on hand-picked averments in plaintiff's Complaint. See Laursen v. General Hosp. ofMomoe County" 259 Pa. Super. 150,159,383 A.2d 761, 766 (1978) (reading the sufficiency of paragraph 13 of the complaint in conjunction with paragraphs 15, 16, 17 and 19). 9 II ,[ I , 'I:,. _,__'''._, icl',; ",,' ~",:, ;', ":''-",0'' :..,~~:,:'~,;";':';<",,";" , -"~'''',I~, 27, Admitted. By way of further answer, counsel for plaintiff had agreed to strike the allegations of recklessness from paragraph l5( d) only. WHEREFORE, plaintiff, Panlette Harris, respectfully requests this Honorable Court to enter an Order sustaining defendant's Preliminary Objections to plaintiffs Complaint in the nature of a motion to strike the allegations of recklessness from plaintiff s Complaint, MISON, VANDER VEEN & ASSOCIATES By: ~V7 arina Kats, Esquire Attorney for Plaintiff 10 t"llia' . ,',0". ~ l . '.,',l, ~" J, '" ' ,- ~"": :":','d";;C'" , ~" " ~ "~ - "';, . VERIFICATION I, Marina Kats, Esquire, hereby states that I am the attorney for Plaintiff in this action, and verify that the statements made in the foregoing Plaintiff's Answer to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief The undersigned understands that the statements therein are made subject to the penalties of 18 Pa,C.S. Section 4904 relating to unsworn falsification to authorities. KATS, JAMISON, VANDER VEEN & ASSOCIATES By: arina Kats, Esquire Attorney for Plaintiff 11 ,:,'1 ,~__"_ _,""'J~ ',Po " "--,','" .,. -;,;"-"",,.,'" -:;,};'!',:, . ',~ c ~~;i . KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. CERTIFICATE OF SERVICE I, the undersigned attorney for Plaintiff, hereby certify that Plaintiff's Answer to Defendant's Preliminary Objections was served via first-class mail upon the following: John T. Asher, III, Esquire Spector, Gadon & Rosen, P,C. Seven Penn Center 1635 Market Street, 7'h Floor Philadelphia, PA 19103 KATS, JAMISON, VANDER VEEN & ASSOCIATES By.-i1~, i..{{;2 Attorney for Plaintiff Dated: June 21, 2001 12 il~~~~iMU~I!rii!ii~'i!illi' 'i!1I.Mi -'f'..~~",!;i!i'l~;iM~~l"""i:liLLL1tlll ,i~ ,~' ".', ',f' ""~"""","""',,, ""~'~' '" " . Q CJ ~i1 ,- -'-1 ~ , , n~': ,,,..., ,-"- ;JJ - '''1 "Cr ,,'--- Z I-~"';;';. "-J - ~, <::? ~;~: .~~! r:'::,; ;"7 ~ t5 -'C S~) :L~" ~~ c-; ,'--- () ',--' i:5 ).-"' c:: en Z ;~ .--./ -< CO :n -< ~ =. W~ , ~ ".,". _ ,_,,~, , ,. " ~ J_ ~ " . ~~"~~"" ~., - " ~, ~'~ ' "~~ ~~ '~lb\""'; PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) PAULETTE HARRIS (Plaintiff) vS. CARLISLESPORTSEMPO~ and JOHN DOE, EMPLOYEE and TRAVIS BEST (Defendants) No.: 1403 Civil Term, 2001 1. State matter to be argued. (i.e., plaintiffs' motion for new trial, defendants demurrer to complaint, etc.) Defendant, Carlisle Sports Emporium, Inc.'s Preliminary Objections to Plaintiff's Complaint. 2. Identify counsel who will argue cases: (a) for plaintiff: Address: Robert Baccari, Esquire Kats, Jamison, Van Dermeer & Associates 25 Busdeton Pike Feasterville, Pennsylvania 19031 (b) for defendant: Address: John T. Asher, III, Esquire Spector Gadon & Rosen, P.c. 1635 Market Street, 7th Floor Philadelphia, Pennsylvania 19103 3. I will notify all parties in writing within two (2) days that this case has been listed for argument. 4, Argument Court Date: August 29, 2001 T. ASHER, III tt ney for Defendant, rl Ie Sports Emporium, Inc. Dated: /6} F: \45434 \001 \Plea.dings\Praecipe.argument.S29. wpd Ilfl.lllllfliiBllu)"".r lli.'__ ~'..J'=.'';':'''-''-''~:~~-ili;-KMI;t.ij''X,"I''''--\t''''-iMil~!'i1<i@'..l::J- ",_ ,,' ",,,,~!ITI~~ ~~ , .~"~,~ =,~,'~,,~,,-'"'" ,~.~, ," .,_"""",,.,,.,,,~,','-i,, .,~,~." jill' illIDliIU r ~!Iltii!rli ,. "'<' u i".,j (-'. ~~~ '<) ['-..' ,i' ~ Yf " , . - '~ - " '""" ",n " ~~',,.<,l" ,'" _,': '.' '" ,_, ~j",~ . KATS, JAMISON, VANDER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Paulette Harris, by and through her attorney, Marina Kats, Esquire, hereby requests this Honorable Court to enter an Order overruling defendant, Carlisle Sport Emporium, Inc.' s Preliminary Objections, and in support thereof avers the following: I. Admitted. 2. Admitted. By way of further answer, pursuant to the Pennsylvania Rules of Civil Procedure, plaintiff's Complaint contained a Notice to Plead stating that: 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 the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or obj ections to the claim set forth against you. See plaintiff's Complaint (emphasis added). Accordingly, defendant was required to file an Answer or Preliminary Objection to plaintiff's Complaint within twenty (20) days of service. 2 11< ~."~ ""'~ '. ~ 0 ",~,!: " 3. Admitted. By way of further answer, having been served on April 3, 2001, defendant was required to file an Answer or Preliminary Objection to plaintiff's Complaint within twenty (20) days of service, i.e., by April 23, 2001. Nevertheless, by April 23, 2001, defendant had neither filed an Answer or Preliminary Objections to plaintiff's Complaint. Rather, on April 25, 2001, defendant requested an extension of time to respond to plaintiffs Complaint and as a professional courtesy, plaintiff granted defendant a two (2) week extension of time to Answer the Complaint only. Thereafter, instead of filing an Answer to the Complaint, on May 8, 2001, defendant filed Preliminary Objections contrary to the agreement. Therefore, pursuant to the Pennsylvania Rules of Civil Procedure, defendant's Preliminary Objections should be overruled as untimely and defendant should file an Answer to plaintiffs Complaint. 4. Admitted. 5. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 6. Admitted. By way of further answer, defendant has never disclosed the name and address of defendant's employee who was working at the time of the incident. In fact, despite having several conversations with counsel for plaintiff to date, defendant still has not disclosed the name and address of defendant's employee. 7. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, on April 3, 2001, the Sheriff of Cumberland County served plaintiff s Complaint upon defendant at the only known address for the employee, i.e., 36 Kelly Drive, Carlisle, P A 17013. Having avoided disclosure of its employee's name, defendant can not argue that plaintiff should have known the home address of its employee. Without question, defendant should not benefit from its avoidance tactics in these preliminary objections. 3 'I" ."~-"'- By way of further answer, under the theory of respondeat superior, defendant is responsible for the actions of its employee and has a duty to defend its employee. As it has a duty to defend its employee, service of the complaint at only known address for the employee, i.e., 36 Kelly Drive, Carlisle, P A 17013 was proper. In other words, defendant is on notice of the claims it must defend for itself and its employee and shonld simply Answer the Complaint On the other hand, shonld defendant deny that it has a duty to defend its employee and therefore, may not accept service, then defendant has no standing to object to service upon the employee. Indeed, in reviewing the docket in this matter, counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. Accordingly, if defendant admits that it has a duty to defend its employee for conduct arising out of the course and scope of employment, then service was proper upon its employee at 36 Kelly Drive, Carlisle, P A 17013. If defendant denies that it has a duty to defend its employee and can not accept service for its employee, then defendant does not have standing to object to service upon its employee. Defendant can not have it both ways. Under these circumstances, the Court should overrule the preliminary objections to service upon defendant's employee. 8. Admitted. 9, Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, the Sheriff of Cumberland County served plaintiff s Complaint upon defendant's employee at the only known address, i.e., 36 Kelly Drive, Carlisle, P A 17013. More importantly, counsel for defendant has no standing to file this Preliminary Objection to service upon defendant, John Doe, Employee. The objecting counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. and not for any other defendant. Accordingly, the 4 ~ . ~--~ , . ., '>'"' ~~)., objecting counsel caunot file objections for parties it does not represent. In short, defendant has no standing to object to service upon the employee. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiffs Complaint. 10. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. II. Admitted. By way of further answer, Count IV of plaintiff s Complaint also avers causes of action against defendant, Carlisle Sports Emporium and defendant, Travis Best. 12. Admitted. 13. Denied. It is specifically denied that plaintiff failed to name defendant's employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. Under the Peunsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name ofthe unknown employee. See Pa.R.C.P. 1033; See also Goolsby v. Papanikolua, 161 Pa. Co=w. 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624,657 A.2d 493 (1995). As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an ullknown employee ofthe defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, ~ I 033: 19 (emphasis added). 14. Admitted. 5 -~~...~~ " "' ~~"",., 15. Denied. It is specifically denied that plaintifffailed to identify defendant's negligent employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. As stated above, under the Pennsylvania Rnles of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to identify the unknown employee. Moreover, it is disingenuous for defendant to complain that plaintiff has not identified the employee while, at the same time, failing to disclose the identity of its employee. Under these circumstances, prior to any discovery, the designation of "John Doe" should not be stricken from the Complaint with prejudice. See Inn Union. U.B.F.C.S.D.&D.W. v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965) (preliminary objections denied where matters would necessarily be known only to the objecting party and secreted from the pleading party); Line Lexington Lumber & Millwork. Co. v. Pennsvlvania Publishing Com., 451 Pa. 154,301 A.2d 684 (1973) (plaintiff has greater leeway in pleadings where facts are within exclusive knowledge of defendant). 16. Admitted in part. Denied in part, It is admitted that plaintiff may seek to amend her complaint to change the designation of "John Doe, Employee" to the specific name of defendant's employee. It is specifically denied that, by doing so, plaintiff is adding a new party after the statute of limitations. Pursuant to Rule I 033 of the Pennsylvania Rules of Civil Procedure, "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Pa.R.C.P. 1033 (emphasis added). According to the Peunsylvania Supreme Court, Peunsylvania courts should liberally permit amendments to complaints pursuant to Pa.R.C.P. 1033. Laursen v. General Hosvital of Monroe Countv, 494 Pa. 238, 431 A.2d 237 (1981); Saracina v. Cotoia,417 Pa. 80,208 A.2d 764 (1965). The principle underlying this liberal policy in favor of 6 _.~_. -'."~'~ -~ .~_. . . . . ".- ~if<_~"",,, amendments lies with the desire ofPeunsylvania courts to secure determination of cases based on merits rather than mere technicalities. Horowitz v. Universal Underwriters Ins., 397 Pa. Super. 473,580 A.2d 395, appeal denied 527 Pa. 610, 590 A.2d 297 (1990). 17. Admitted in part. Denied in part. It is admitted that the general rule is that a party is not permitted to add a new defendant after the statute of limitations. However, there are exceptions to the general rule. See e.g., Coatsman v. Aloha Racauetball. Inc., 40 Pa. D.& C.3d 89 (1984) (motion for leave to amend a complaint to include a new party after the applicable statute oflimitations had run will be granted where defendants failed to provide notice of their denial of ownership of the property in question). Nonetheless, it is specifically denied that plaintiff is adding a new party beyond the statute oflimitations. On the contrary, plaintiff has specifically named defendant's employee who was working the go-cart track on March 13, 1999 at 9:30 p,m. as a defendant in this action. Once defendant finally discloses the name of its employee, plaintiff s motion to amend the Complaint merely will ask the Court allow plaintiff to include the correct designation of defendant, John Doe, Employee. Pennsylvania courts generally will allow an amendment to correct the designation of a party. See e.g., Zercher v. Coca-Cola USA, 438 Pa. Super. 142,651 A.2d 1133 (1994) (in order to secure determination of cases on merits, trial court should grant, whenever possible, petition to change name on pleadings); Hall v. Acme Markets. Inc., 110 Pa. Cmwlth. 199, 532 A.2d 894 (1987) (naming Commonwealth ofPeunsylvania rather than Department of Transportation as defendant was mere technical defect that could be remedied by amendment). Accordingly, defendant's Preliminary objections should be overruled. 18. Admitted. By way of further answer, in the alternative, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John 7 ,,-", "" ... ;,-- -~{~; Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Goolsbv. 161 Pa. Commw. 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624,657 A.2d 493. As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee ofthe defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Peunsylvania Practice 2d, ~ I 033: 19 (emphasis added). 19. Denied. It is specifically denied that defendant would be prejudiced if the Court overruled these preliminary objections. On the contrary, defendant can not demonstrate any prejudice that could befall it if the Court overrules its objections and later allows an amendment. It is clear that defendant was put on notice before the statute oflimitations had expired that it would have to defend the actions of its employee in a suit by plaintiffs. In particular, dc;fendant was put on notice that its employee had been negligent during the course and scope of his employment for defendant on March 13, 1999 at 9:30 p.m. at the go-cart track. Moreover, defendant's act of filing preliminary objections for its employee and defending the action demonstrates that defendant is on notice that the employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. has been sued by plaintiffin this action. Therefore, there can be no claim of undue prejudice on the part of Defendant which wonld prevent the Court from overruling these preliminary objections and later, granting leave to amend the Complaint. WHEREFORE, plaintiff, Panlette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiff's Complaint. 8 "_."-",,_...,,,,~ . ~- . , '. , .',-,,~~~,~ 20. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 21. Admitted. 22. Denied. It is specifically denied that paragraph 15(c) alleges "dangerous, reckless and unsafe conduct" on the part of defendant. On the contrary, plaintiff alleges "dangerous, reckless and unsafe conduct" on the part of defendant in paragraph 15( d). 23. Denied. It is specifically denied that plaintiff is asserting a claim for punitive damages against defendant. 24. Admitted. By way of further answer, punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or reckless indifference to the rights of others. 1. McDaniel v. Merck. Sham & Dolune, 367 Pa.Super. 600, 533 A.2d 436, (1986). In assessing punitive damages, the trier of fact can properly consider the character of defendant's act, the nature and extent of the harm to plaintiff that defendant caused or intended to cause and the wealth of Defendant. Id. 25. Admitted. 26. Denied. It is specifically denied, however, that plaintiff's Complaint violates the specificity requirements of Rule 1019 of the Pennsylvania Rnles of Civil Procedure. On the contrary, plaintiff's Complaint sets forth the material facts with sufficient specificity to appraise defendant of the claims and enable it to prepare a response and a defense. The sufficiency ofthe facts alleged in a complaint are detennined by reading the complaint in its entirety and not by basing an objection on hand-picked averments in plaintiff's Complaint. See Laursen v. General Hosp. of Monroe Countv., 259 Pa. Super. 150, 159,383 A.2d 761, 766 (1978) (reading the sufficiency of paragraph 13 of the complaint in conjunction with paragraphs 15, 16, 17 and 19). 9 - 27. Admitted. By way of further answer, counselfor plaintiff had agreed to strike the allegations of recklessness from paragraph 15( d) only. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order sustaining defendant's Preliminary Objections to plaintiffs Complaint in the nature of a motion to strike the allegations of recklessness from plaintiffs Complaint. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: 4lt!U Attorney for Plaintiff 10 " h. ."",~", ", , ~ . - "' '--.~~""" VERIFICATION I, MARINA KATS, ESQUIRE, hereby certifies that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, belief and understanding. I also understand that any false statements made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. (Lw~fA MARINA KATS, ES ,~ .,'. KATS, JAMISON, VANDER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil CERTINCATE OF SERVICE I, MARlNA KATS, ESQUIRE, hereby certify that on August 15, 2001, a true and correct copy of Plaintiff's Answer to Defendant's Preliminary Objections were forwarded to counsel for defendants at the address listed below via first class mail, postage prepaid: John T. Asher, III, Esquire SPECTOR, GADON, & ROSEN, P.C. Seven Peun Center 1635 Market Street 7th Floor Philadelphia, PA 19103 KATS, JAMISON, van der VEEN & ASSOCIATES ~) ~ BY: .~ \. MARINA KATS, ES Attorney for Plaintiff ^ ''j'''',fiiiffililh<"U' -,,""".'- "- j~'"".7-"'"' ,. ,--' ~/~...,....,..,\' I -. " " ',. ,~ " , , I /~",d.t -- "~'ii'"", ~~{t~~7'; ;5'-- 'If '~ :.r;;, ....~.. \ " KATS, JAMISON, VAN DER~N & ASSOCIATES By:' Marina Kats, Esquire' Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 .~....,., Attorney for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil G " .>~ Defendants. 1'-::- . ~;-,,: ~~~~; :::~,.-. ':::,." -" I'';' _:-, ORDER yc ;< ~ ~ --> l-;:) -< AND NOW, this day of ,2001, upon consideration of plaintiffs Answer to defendant, Carlisle Sport Emporium, Inc. 's Preliminary Objections to plaintiff's Complaint, it is hereby ORDERED AND DECREED that: _ defenda~t's Preliminary Objections in the nature of a motion to strike the allegations of recklessness from plaintiffs Complaint are SUSTAINED, _ defenda~t's Preliminary Objections in the nature of a motion to dismiss plaintiffs Complaint against defendant, John Doe, Employee for improper are OVERRULED, defenda~t's Preliminary Objections in the nature of a motion to strike the designation of defendant, John Doe, Employee from plaintiffs Complaint are OVERRULED, It is further ORDERED AND DECREED that defendant file an Answer to plaintiff's Complaint within twenty (20) days of the date of this Order. BY THE COURT: ~b,,,,,..~.,,,,,,,,, f' "', :^^^ , ," ~~a:j"",,.4;'--', KA TS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY C) ~. <;~ <. PAULETTE HARRIS VS. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST c> NO: 01-1403 Civil c:. :, ""') i',_ D~fendants. ~__. ,n >c,~ Z ___I -<' co PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Paulette Harris, by and through her attorney. Marina Kats, Esquire, hereby requests this Honorable Court to enter an Order overruling defendant. Carlisle Sport Emporium. Inc,' s Preliminary Objections. and in support thereof avers the following: 1. Admitted, 2, Admitted. By way of further answer, pursuant to the Pennsylvania Rules of Civil Procedure. plaintiffs Complaint contained a Notice to Plead stating that: 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 the complaint and notice are served. by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claim set forth against you. See plaintiffs Complaint (emphasis added). Accordingly, defendant was required to file an Answer or Preliminary Objection to plaintiffs Complaint within twenty (20) days of service. \. 2 ~~_",,,,Ja_L ~" ,- 3. Admitted. By way of further answer, having been served on April 3, 200 I. defendant was required to file an Answer or Preliminary Objection to plaintiffs Complaint within twenty (20) days of service, [,e., by April 23, 2001. Nevertheless, by April 23. 2001, defendant had neither filed an Answer or Preliminary Objections to plaintiffs Complaill~' Rather. on April 25, 2001, defendant requested an extension oftime to respond to plaintiffs Complaint and as a professional courtesy. plaintiff granted defendant a two (2) week extension of time to Answer the Complaint only. Thereafter, instead of filing an Answer to the Complaint, on May 8, 2001, defendant filed Preliminary Objections contrary to the agreement. Therefore, pursuant to the Pennsylvania Rules of Civil Procedure, defendant's Preliminary Objections should be overruled as untimely and defendant should file an Answer to plaintiffs Complaint. 4, Admitted. 5. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 6, Admitted. By way of further answer. defendant has never disclosed the name and ::tddress of defendant's employee who was working at the time of the incident. In fact, despite having several conversations with counsel for plaintiff to date. defendant still has not disclosed the name and address of defendant's employee, 7. Denied, It is specifically denied that no service was made upon defendant's <:mployee, On the contrary, on April 3. 200L the Sheriff of Cumberland County served plaintiffs Complaint upon defendant at the only known address for the employee, i.e" 36 Kelly Drive. Carlisle, PA 17013. Having avoided disclosure of its employee's name, defendant can not argue that plaintiff should have known the home address of its employee, Without question. defendant should not benefit from its avoidance tactics in these preliminary objections. 3 ~ -j;'""""",,- .. '"~ - l . .<- .~ "'fliii!i,~<llr.i'i':' By way of further answer, under the theory of respondeat superior, defendant is responsible for the actions of its employee and has a duty to defend its employee, As it has a duty to defend its employee, service of the complaint at only known address for the employee. i,e.. 36 Kelly Drive, Carlisle, PAl 70 I3 was proper. In other words. defendant is on notice of the " claims it must defend for itself and its employee and should simply Answer the Complaint. On the other hand. should defendant deny that it has a duty to defend its employee and therefore, may not accept service, then defendant has no standing to object to service upon the employee. Indeed, in reviewing the docket in this matter, counsel has entered his appearance only for defendant, Carlisle Spo,rt Emporium, Inc. Accordingly, if defendant admits that it has a duty to defend its employee for conduct arising out of the course and scope of employment, then service was proper upon its employee at 36 Kelly Drive, Carlisle. PAl 70 13. If defendant denies that it has a duty to defend its employee and can not accept service for its employee, then defendant does not have standing to object to service upon its employee. Defendant can not have it both ways. Under these circumstances. the Court should overrule the preliminary objections to service upon defendant's employee, 8. Admitted, 9, Denied, It is specifically denied that no service was made upon defendant's employee. On the contrary, the Sheriff of Cumberland County served plaintiff s Complaint upon defendant's employee at the only known address. i.e.. 36 Kelly Drive, Carlisle, PA 17013. More importantly. counsel for defendant has no standing to file this Preliminary Objection to service upon defendant. John Doe. Employee. The objecting counsel has entered his appearance only for detendant, Carlisle Sport Emporium. Inc. and not for any other defendant. Accordingly, the \, 4 ~""",",' . ~ ,'. "'" ~ l """T"~"', ,. objecting counsel caunot file objections for parties it does not represent, In short, defendant has no standing to object to service upon the employee. WHEREFORE, plaintiff, Paulette Harris. respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiff's Complaint. " 10, Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. II. Admitted. By way of further answer, Count IV of plaintiff's Complaint also avers causes of action against defendant, Carlisle Sports Emporium and defendant, Travis Best. 12. Admitted. 13, Denied. It is specifically denied that plaintifffailed to name defendant's employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against '"John Doe" in the C omplaim. Under the Peunsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee, See Pa.R.c.P, 1033; See also Goolsby v. Papanikolua, 161 Pa, Commw. 489, 637 A.2d 707 ([994). appeal denied. 540 Pa. 624, 657 A.2d 493 (1995). As quoted from Goodrich Amram's Standard Peunsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d. Standard Peunsylvania Practice 2d, S 1033: 19 (emphasis added), 14. Admitted. '. 5 I' ,I '~"""-4'>"O~'- ","",~~,,'h ~.,. f' \, " II il I' ], Ii il ',1 II .' ~l "",' -,' .> 'ie'd@itWic-;' 15. Denied. It is specifically denied that plaintiff failed to identify defendant's negligent employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe'" in the Complaint. As stated above, under the Pennsylvania Rules of Civil Procedure, plaintitImay designate an unkno\\TI employee of defendant as "John Doe," conduct disc!?very and then tile a petition to Amend the Complaint to identify the unkno'WTI employee. Moreover, it is disingenuous for defendant to complain that plaintiff has not identified the employee while. at the same time, failing to disclose the identity of its employee. Under these circumstances, prior to any discovery, the designation of "John Doe" shonld not be stricken from the Complaint with prejudice, See Inn Union, U.B.F.C.S.D.&D.W. v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965) (preliminary objections denied where matters would necessarily be known only to the objecting party and secreted from the pleading party); Line Lexington Lumber & Millwork, Co. v. Pennsylvania Publishing Corp., 451 Pa. 154,301 A.2d 684 (1973) (plaintiff has greater leeway in pleadings where facts are within exclusive knowledge of defendant). 16. Admitted in part. Denied in part, It is admitted that plaintiff may seek to amend her complaint to change the designation of"John Doe, Employee" to the specitic name of defendant's employee. It is specifically denied that. by doing so, plaintiff is adding a new party after the statute oflimitations. Pursuant to Rule 1033 of the Pennsylvania Rules of Civil Procedure, "[a] party. either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correcllhe name of a party or amend his pleading." Pa.R.C.P, 1033 (emphasis added). According to the Pennsylvania Supreme Court, Pennsylvania courts should liberally permit amendments to complaints pursuant to Pa.R.C.P. 1033, Laursen v, General Hospital of Monroe Countv, 494 Pa, 238.431 A.2d 237 (1981); Saracina v, Cotoia.417 Pa, 80, 208 A.2d 764 (1965). The principle underlying this liberal policy in favor of 6 ~"'""""""'.. _...;~.~~~l,~ ~ I, " 1--,,,,,,-' ~">+<''''''_A-4'- amendments lies with the desire of Pennsylvania courts to secure determination of cases based on merits rather than mere technicalities. Horowitz v. Universal Underwriters Ins., 397 Pa. Super. 473, 580 A.2d 395, appeal denied 527 Pa. 610, 590 A.2d 297 (1990). 17, Admitted in part. Denied in part. It is admitted that the general rule is that a party is not permitted to add a new defendant after the statute of limitations. However, there are exceptions to the general rule, See e.g" Coatsman v. Alpha Racquetball, Inc., 40 Pa. D.& C.3d 89 (1984) (motion for leave to amend a complaint to include a new party after the applicable statute of limitations had run will be granted where defendants failed to provide notice of their denial of ownership of the property in question). Nonetheless, it is specifically denied that plaintitT is adding a new party beyond the statute of limitations. On the contrary, plaintiff has specifically named defendant's employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. as a defendant in this action. Once defendant finally discloses the name of its employee, plaintiffs motion to amend the Complaint merely \\ill ask the Court allow plaintiff to include the correct designation of defendant. John Doe, Employee, Pennsylvania courts generally will allow an amendment to correct the designation of a party. See e.g., Zercher v. Coca-Cola USA, 438 Pa. Super. 142.651 A,2d 1133 (1994) (in order to secure determination of cases on merits, trial court should grant. whenever possible, petition to change name on pleadings); Hall v. Acme Markets, Inc" 110 Pa. Cmwlth. 199, 532 A.2d 894 (1987) (naming Commonwealth of Pennsylvania rather than Department of Transportation as defendant was mere technical defect that could be remedied by amendment). Accordingly, defendant's Preliminary objections should be overruled. 18, Admitted, By way of further answer. in the alternative, under the Pennsylvania \. Rules of Civil Procedure. plaintitT may designate an unknown employee of defendant as "John 7 ~~._, , , .J ,,~", -- ,- .,.. 'iil~;j;y,...,< '" Doe:' conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa,R.C.P. 1033; See also Goolsby, 161 Pa. Commw. 489, 637 A,2d 707 (1994), appeal denied. 540 Pa. 624, 657 A,2d 493. As quoted from Goodrich Amram' s Standard Peunsylvania Practice 2d, " In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizZa shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, S 1033: I 9 (emphasis added). 19. Denied. It is specifically denied that defendant would be prejudiced if the Court overruled these preliminary objections, On the contrary, defendant can not demonstrate any prejudice that could befall it if the Court overrules its objections and later allows an amendment. It is clear that defendant was put on notice before the statute of limitations had expired that it would have to defend the actions of its employee in a suit by plaintiffs. In particular, defendant was put on notice that its employee had been negligent during the course and scope of his employment for defendant on March 13, 1999 at 9:30 p.m, at the go-cart track. Moreover. defendant's act of filing preliminary objections for its employee and defending the action demonstrates that defendant is on notice that the employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. has been sued by plaintiff in this action. Therefore, there can be no claim of undue prejudice on the part of Defendant which would prevent the Court from overruling these preliminary objections and later. granting leave to amend the Complaint. WHEREFORE, plaintiff. Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiffs Complaint. .i Ii II 8 """"iI' ~w" I I II II II " il , ii .~ ,. -'- -"~ '~1" 20. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 21. Admitted. 22. Denied, It is specifically denied that paragraph 15( c) alleges "dangerous,reckless and unsafe conduct" on the part of defendant. On the contrary, plaintiff alleges "dangerous. reckless and unsafe conduct" on the part of defendant in paragraph 15( d). 23, Denied. It is specifically denied that plaintiff is asserting a claim for punitive damages against defendant. 24. Admitted. By way of further answer. punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or reckless indifference to the rights of others, L. McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436, ( 1986). In assessing punitive damages, the trier of fact can properly consider the character of defendant's act, the nature and extent of the harm to plaintiff that defendant caused or intended to cause and the wealth of Defendant. Id. ;- -), Admitted. 26. Denied. It is specifically denied, however, that plaintiffs Complaint violates the specificity requirements of Rule 1019 of the Pennsylvania Rules of Civil Procedure. On the contrary, plaintiff's Complaint sets forth the material facts with sufficient specificity to appraise defendant of the claims and enable it to prepare a response and a defense. The sufficiency of the tacts alleged in a complaint are determined by reading the complaint in its entirety and not by basing an objection on hand-picked averments in plaintiff's Complaint. See Laursen v. General Hosp, of Monroe County., 259 Pa. Super, 150, 159, 383 A.2d 761,766 (1978) (reading the sut1iciency of paragraph 13 of the complaint in conjunction with paragraphs 15, 16. 17 and 19), 9 iiJJ;,...' .j-,'""",,, -r , "'" " I ". 'u lilliM~'>-'tr't- 27. Admitted. By way of further answer, counsel for plaintiff had agreed to strike the allegations of recklessness from paragraph 15( d) only. WHEREFORE, plaintiff. Paulette Harris, respectfully requests this Honorable Court to enter an Order sustaining defendant's Preliminary Objections to plaintiff's Complaint in,the nature ofa motion to strike the allegations of recklessness from plaintiff's Complaint. By: MIS ON, VAN DER VEEN & ASSOCIATES ~V7 arina Kats, Esquire Attorney for Plaintiff . -. 10 i "'~,,,,,,'" '" r ~, ~~ J_. .~." ',- ~~""c-" VERIFICATION I. Marina Kats. Esquire, hereby states that I am the attorney for Plaintiff in this action, \ and verify that the statements made in the foregoing Plaintiff's Answer to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities, KA TS, JAMISON, V AN DER VEEN & ASSOCIATES By: arina Kats, Esquire Attorney for Plaintiff \, II ~ "'_'O'WI<>.~"""_ - ""I.. ~ " . ,,;. L,,~ " , ~I~)'j;:" KA TS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue F easterville, P A 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. CERTIFICATE OF SERVICE I, the undersigned attorney for Plaintiff, hereby certify that Plaintiff's Answer to Defendant's Preliminary Objections was served via first-class mail upon the following: John T. Asher. III, Esquire Spector, Gadon & Rosen, P.C. Seven Penn Center 1635 Market Street, 7'h Floor Philadelphia, PA 19103 KA TS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~ arina Kats, Esquire Attorney for Plaintiff Outed: June 21, 2001 'I, 12 ~~~_~~~m_~~m"'l#'.<>i;~~ii;,:,m!i@~:.\,'t",,"1"W,.tU?..6'iihfu~~~~~i~ 'r- ~ '~I~ o ~; "\},:' LT, ' ~ ~(, ~~;i) ,"'__",~ . 'l~,'"'.,~ ,". "_ - - ","'."" ~< "~"'~'"'-""~ ~ ,--'~~ ,--"" ,~ >,- , ~-' --< u' ."" ~. C::r (j .7; 1:',";11 :--:} ,-'>') ;--'",) c:. !,Tl .;S::l j r;:~ -."- ~'l :>() . ~:.- (I , :A) '.~~ (J'J ~iJ -< I 1'l. ,-~ ' -- - ., '~- ="'" -, '.",,--,c,';; ,'-c-,- ~ _L'lIIiid.ou.',H'" KATS, JAMISON, VAN DER VEEN & ASSOCIATES, P.C. By: Marina Kats, Esquire Identification No. 53020 25 Bustletou Pike Feasterville, PA 19053 (215) 396-9001 Attorneys for Plaintiff 111is is au Arbitration case.. An assessment of damages hearing is requested PAULETTE HARRIS CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW VS. CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE, EMPLOYEE OF CARLISLE SPORTS EMPORIUM, INC AND TRAVIS BEST NO.: 011403 P RAE C I P E TO THE PROTHONOTARY: Kindly reinstate Plaintiff's Complaint in Civil Action in the above-captioned matter for thirty (30) days so that service may effectuated on the Defendant, TRAVIS BEST. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: J -' "dOl.~EiOlI_lNl~~~@~ifut~~riJl!.~~,,,,<.~,,,,,,~.~<,,,,,~"iiliilr~lliI:,,ijr" ~.' ~""'-' !ii' ",","" ,""" ,~''''l ',"" ,_, ~_ ~ .~"-"',,,,~~,~~.,!" '~O" "_"o"'~'V" "_,,,, _<,<,.., "".', ,'~ -~. ~ ~ ~ '" " ' .'" ,", ., ~ .....,;<~1l ., 'L' I......,""" -,~ 0 Cl {:l C r-J '7~ ~:, ...., v([: j""/''I mni cr:J Z:I,; ZC I (j) '~;'~ ,- -<. !;= c> --0 ?C" " (-j ZC; , , .'~.- ,-n >c "':':< ~~ 2: ,:':) ):~ ~ :0 m -< ~ ", 'm'WR~ , ..st~ 'j;; ~:: I It '.~ ,,,.i,, ~~,., , ~~ " S~~j;'~", "-,' - KATS, JAMISON, VAN DER VEEN & ASSOCIATES, P.C. By: Marina Kats, Esquire Identification No. 53020 25 Bust1eton Pike Feasterville, PA 19053 (215) 396-9001 Attorneys for Plaintiff This is an Arbitration case.. An assessment of damages hearing is requested PAULETTE HARRIS CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION - LAW Plaintiff, vs. NO. 011403 CARLISLE SPORTS EMPORIUM, INC., : JOHN DOE, EMPLOYEE OF CARLISLE SPORTS EMPORIUM, INC.;: and TRAVIS BEST, Defendants. / PRAECIPE TO THE PROTHONOTARY: Kindly reinstate Plaintiffs Complaint in Civil Action in the above-captioned matter for thirty (30) days so that service may effectuated on the Defendant, TRAVIS BEST, KATS, JAMISON, VANDER VEEN & ASSOCIATES V) By: r Ij) Marina Kats, Esquire Attorney for Plaintiff ,1 'JtiliiWMij~~~ilJ!,.!iiii@i~iif::;a;~!&;~~"",lWl}J~Mf.i,."(<;.<",!-;j't","':0'~'~!{id,a;!I"";;;k:c-jjifj"'i"hf.fu~~l~~~- """~;l#:itM~h"~~..o'''''-iil" ,..... ,...liI Cl 1'.) .- 1E~ .-0 Q c ~ ~- 1:JCf.,\ mr'i2 Z::L ZS (fJ/ :z,: t;2CJ 1%c; ~C ,YC ~Oj -'. Nf" .~. ",'",'~,~,~" ~. ., ~'.""..~<~ ~,< '.-'. ,,"~> ~", ""~ ,., < " \ .<; ;:."" ::'~: .~~i.:....:.:.......:...<'.:.:.::..-.....'.. ~ '" , -', ",,: if ;", ,:",~,:" ',.' -.\ L..,. '-11 - - {'., _ 'C; '-,~.~ ~;2:~:~ ~ p ~ - ,0 I ~ . ""......." ',t 1$l1'~!1Il5L~:" , II KA TS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, P A 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. , 0/- 1'103 G:..;TERM,2001 CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. Docket No. o COMPLAINT o s a3E~ 6::; -'-' "- - (..J-<::: ~,c;. :t.:3 ;"J ".. :..: () -'f1 :.~ i';'l~ ~'.';TI ,;5y :--2f..~ . ,- -rl , ")~~ d~f1 ?i5 -< '" .- t:--(~. ";.'.C Z -I -< ,'0 co ComDlaint Civil Action: Miscellaneous '. . FOO'>". RC=:CO'.RD . TRl1E COpy n m h I~ 'T ",.,j.".,,,,, ''''J' Si~'ll Itl€fil unto sel my l'I.aOO t. !"::j;OJ~;.~}"...~:I~'i Hl ~. ..,~ .~ atrt:! no; ,,!leI 1)\ S;lid \X\l.lrl at Carlisle, Pa. Ti,. dayf You have been sued in court. If you wish to defend agaInst the claims set forth tn the following pages, you must take action within twenty 120} days after this complaint and notice are served, by entering a written appearance personelly or bV attorney and filing in writing with the court your defenses or objections to the clalmll8t forth &g81nst you. You are warned that If you fail to do 10 the case may proceed whhout you and a judgment may be entered against you by the court wIthout further notice for any money claimed In the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights lmponant to you. YOU SHOULO TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORO ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Nam. (~\lIbt"~-t"J C:>-.,<')4':) & A~"':A1:~Ji~.... Add,... '2 t L \ '. ct. , _. lGe.et..... Uf. City ~ GJisk-,?A i1D\~ T.l. No. 60 ) ~fj .. 31~~ . ~ 0 ~~ ....,j~j........J' , , ,. -I "~ '_ 1_ , J"";~i'il,"; 'II KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, P A 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. TERM, 2001 CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. Docket No. COMPLAINT Comolaint Civil Action: Miscellaneous L Plaintiff, Paulette Harris, is an adult individual, residing at 1880 Lafayette Avenue, in Bronx, New York. 2. Defendant, Carlisle Sports Emporium, Inc., is a business, company, entity, partnership, I I 'I I I franchise, fictitious name, proprietorship or corporation existing and/or qualifying under the laws of the Commonwealth of Pennsylvania, with a registered office for acceptance of service or principal place of 1 I' Ii il ~'~bl~'""~l.---.~,., ~= "> ,I ," . .~,~ , =."' ~" 'llti'l!\\~hii"i '11 business at 36 Kelly Drive, Carlisle, in the Commonwealth of Pennsylvania. 3. Defendant, John Doe, is an adult individual and employee of Carlisle Sports Emporium, Inc., located at 36 Kelly Drive, in Carlisle, Pennsylvania. 4. Defendant, Travis Best, is an adult individual, residing at 2569 South Avenue, in New York, New York. 5. At all times relevant and material, defendant, John Doe, was an agent, servant and/or employee of defendant, Carlisle Sports Emporium, Inc., acting at all times within the course and scope of his employment. 6. At all times relevant and material to this Complaint, defendants did act through their agents, servants, workmen, employees and/or representatives, said individuals acting within the course and scope of their employment and/or agency. 7. At all times relevant and material to this Complaint, defendant, Carlisle Sports Emporiwn, Inc., owned, operated, leased, managed, controlled and/or had dominion over the premises commonly known as Sports Emporium, located at 29 S. Middlesex Road, in Carlisle, Pennsylvania (the "Premises"). 8. At all times material and relevant hereto, there was an obligation on the part of the aforesaid defendants, to supervise, maintain, inspect, clean and otherwise be responsible for the Premises, including the roller skating rink area of the Premises, so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 9. On or about March 13, 1999, at or about 9:30 p.m., plaintiff, Paulette Harris, was a business invitee on the Premises, on or about the go-cart track area of the Premises. 10. At the aforementioned time and place, plaintiff, Paulette Harris, was operating a go-cart, on 2 ~~_.~~. Io.!~ . - ""J' ~ il!~,:, . 'I the go-cart track, when suddenly and without warning, defendant employee, John Doe, failed to prevent defendant, Travis Best, from operating his go-cart in a dangerous and reckless manner, on the aforementioned go-cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner, thereby causing plaintiffs go-cart to be violently struck by defendant, Travis Best's, go- cart, causing plaintiff to suffer severe and grievous injuries. II. At all times relevant hereto, defendants herein owed a duty to supervise, manage, train, and othetwise be responsible for the conduct of their employees, to provide a safe and hazard free environment and othetwise be responsible for the aforesaid premises so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 12. The circumstances under which plaintiff, Paulette Harris, was injured were such that said injuries to plaintiff could not have occurred on the Premises except by defendants' negligence. I Ii 13. The aforesaid accident resulted solely from the negligence and carelessness of defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, and in no manner whatsoever to any act or failure to act on the part of plaintiff, Paulette Harris. I COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC. 14. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through thirteen, inclusive, as though same were set forth herein at length. 15. The negligence and carelessness of defendant, Carlisle Sports Emporium, Inc., consisted of the following: (a) failing to provide safe conditions for business invitees, patrons and/or members of the public on the Premises; 3 ! I II ._", .~ ' < " iJ' -,~ .~,,! (b) failing to supervise, train, review or regulate the conduct of Sports Emporium employees on the Premises, said failure to supervise, train, review or regulate the conduct of Sports Emporium employees existing for a long time prior to the date ofthis accident; (c) failure to properly and adequately train Sports Emporium employees, in particular the aforesaid unsafe conduct ofthe employee, John Doe, of Carlisle Sports Emporium, Inc,; (d) failure to take reasonable precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees; (e) failure to properly and adequately hire and/or instruct the agents, servants, workmen, employees and/or representatives, of defendant herein, as to the safe and proper procedures for supervising, training, and regulating the conduct of Sports Emporium employees which caused plaintiff's injuries; (f) failure to use reasonable care In the construction, maintenance and operation of the Premises, in particular, the go-cart track area; (g) failure to provide and maintain proper supervision of the Premises; (h) failure to provide and maintain proper safety precautions at the Premises; (i) failure to furnish a reasonable number and distribution of safety personnel and safety equipment at the Premises; Ul failure to provide and maintain proper training procedures at the Premises; (k) failure to furnish a reasonable number and distribution of training personnel and training equipment at the Premises; and (I) negligence per se. 4 ~< '~ ..J" _ L~,~ '.~ = , . J' j _ ~ =' '-0.1, ___. "l!f!",> WHEREFORE, plaintiff, Paulette Harris, demands damages against defendant, Carlisle Sports Emporium, Inc., in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT II PAULETTE HARRIS vs. JOHN DOE 16. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through fifteen, inclusive, as though same were set forth herein at length. 17, The negligence of the defendant, John Doe consisted of the following: (a) failing to properly and adequately conduct himself when interacting with business invitees, patrons and/or members of the public, in particular, plaintiff, Paulette Harris; (b) failing to use due care and to employ reasonable skill in the perfonnance of his job duties; (c) negligently and carelessly inflicting bodily harm upon the plaintiff; (d) negligently and carelessly allowing another person to continually operate a go-cart in a dangerous and reckless manner; and (e) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid, WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendant, John Doe, in a sum not in excess of $50,000.00, plus interest, costs, and attorneys' fees. COUNT III PAULETTE HARRIS vs. TRAVIS BEST 18, Plaintiff, Paulette Harris, incorporate by reference thereto, paragraphs one through seventeen, inclusive, as though same were set forth herein at length. 19. The negligence and carelessness of defendant, Travis Best, consisted of the following: (a) failing to properly operate and control said go-cart; I I, " I' :i 5 ^.~~.~- =-"~ ~ . ~li."'-tii& ~ (b) operating said go-cart at an excessive and unsafe rate of speed under the circumstances; (c) operating said go-cart in a dangerous and reckless manner; (d) failing to maintain a proper and adequate lookout; (e) failing to follow and observe traffic patterns and conditions; (f) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid; (g) causing a vehicular collision; (i) negligence per se. (h) failing to properly and adequately maintain said motor vehicle; WHEREFORE, plaintiff, Paulette Harris, demands damages of defendant, Travis Best, in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT IV PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM. INC.. JOHN DOE and TRAVIS BEST 20. Plaintiff, Paulette Harris, incomor~tf:'. hv rCrerelt<:c... ,~ "~ragraphs one through nineteen, inclusive, as though same were set forth herein at length. 21. As a result of this accident, plaintiff, Paulette Harris, has suffered injuries which are or may be serious and permanent, including, but not limited to cervical strain and sprain, lum .0,... -', .rrain and sprain, right shoulder strain and sprain, right brachial plexus injury, radiculopathy, post-traumatic headaches, post-traumatic stress disorder, myofascitis, cervalgia, lumbalgia and thoracicalgia, 22. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive 6 II """"'~'~"1 ~. ",. '~ ~RIIiiiiIII~ 'r ',,", "~""-':~',\'1' 'I! If and undergo medical attention and care for her injuries, and to incur various expenses for said care, and she may be obligated to continue to expend such sums and to incur such expenses for an indefinite period of time in the future. 23. As a nlrther result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo reasonable and necessary medical treatment and rehabilitative services for the injuries she has suffered, and to incur various expenses for said treatment and services, and she may incur various reasonable and necessary future medical expenses from the injuries sustained, and defendants are liable for all of the same. , 24, As a further result of this accident, plaintiff, Paulette Harris, has or may suffer severe loss and impainnent of her earning capacity and power, and may continue to suffer such a loss of an indefinite time in the future. 25. As a further result of this accident, plaintiff, Paulette Harris, has been unable to attend to her daily chores, duties and occupations, and may be unable to do so for an indefinite time in the future. 26. As a direct result of the accident, plaintiff, Paulette Harris, has and may continue to in the future incur other financial expenses or losses to which she may be otherwise entitled to recover. 27. As a further result of the accident, plaintiff, Paulette Harris, has suffered severe physical pain, aches, mental anguish, and humiliation, inconveniences, and loss of life's pleasures, and she rnay continue to suffer the same for an indefinite time in the future. 7 . ~ > ~ . ' ~'IiiL~'-- ~'-'-'~~i,- WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, jointly and/or severally, in a sum not in excess of$50,000.00, plus interest, costs, and attorney's fees. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~fut{rcQ~ Marina Kats, ESqUl e Attorney for Plaintiff 8 .. ~--"j " 'T ~ ",,,,~,j . VERIFICATION \2l"t1<, U::::>.:; . hereby verifies that he/she is the plaintiff herein and that the facts set forth in the foregoing pleading are true and correct to the best of his/her knowledge. information and belief, This statement is made subjec to the penalties of 18 PA C.S. " Date: \' ' ,"'L i .,- r "J r-l ;:-::J\ (.. L.J.J ~ h.~ ,~~.,} E"'; . " " KATS, JAMISON, VAN DER VEEN & ASSOCIATES, p.e. By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 Attorneys for Plaintiff This is an Arbitration case.. An assessment of damages hearing is requested PAULETTE HARRIS CUMBERLAND COUNTY COURT OF COMMON PLEAS ClVILACTION - LAW VS. CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE, EMPLOYEE OF CARLISLE SPORTS EMPORIUM, INC. AND TRAVIS BEST NO.: 011403 P RAE C I P E TO THE PROTHONOTARY: Kindly reinstate Plaintiff I s Complaint in Civil Action in the above-captioned matter for thirty (30) days so that service may effectuated on the Defendant, TRAVIS BEST. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~ Ma ina Kats, Esquire Att rney for Plaintiffs ,'ii~IiIIMif.~~~~;e~Jd~~:il1j.,&~~,il~:'~~~i<i'Gl!lW"r;n->'n"--H~Id;\liIiI,~ n,~ _d_ - ,,? ~,"",~"~=." - '" .= " '".< ~,_, ,r" =.., ~"' ,,",. . ~. - .~"~, ~. " ~'~iillMililllbi~' 8 :os: ~w, ;;e::n (f.));: -<--~ ""'0 :Iii 20 ;;;;0 ~ I~ 0"1 CO ".~~, a ''-' ". ..., ;:0 , "'- o '''i ::.;'"1 r'n?J 'NI'1""f c;'lb ;~ j '::::() .::r:'-l (""'Ill ~o o,m );! .~~ """ ::.t is .. '% iff SPECTOR, GADON & ROSEN, P.C. BY: John T. Asher, III, Esquire 1635 Market Street, 7th floor Seven Penn Center Philadelphia, PA 19103 (215) 241-8888/(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, Inc. ==================================== PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs, v. : 01-1403 CIVIL TERM, 2001 CARLISLE SPORTS EMPORIUM and JOHN DOE, EMPLOYEE STIPULATION and TRAVIS BEST Defendants. ------------------------------------ ------------------------------------ It is hereby agreed by and between between counsel for Plaintiff, Robert Baccari, Esquire, and counsel for Defendants, John T. Asher, III, Esquire, that the word "reckless" in subparagraphs 15 D. and 17 D, of Plaintiff's Complaint is stricken from Plaintiff's Complaint with prejudice. Dated: (/2/ /OZ- , . KATS, JAMISON, VANDERVEEN & ASSOC. TOR GADON & ROSEN, P.C. ~ obert accari, Esquire Attorney for Plaintiff iil-~mfliiiM.lIA.ill"~~_""~ -J--fi&[ ~"~ , ~~~^- '- !7,"o'''1ii1ildl.1J! ~,It!a,~l ~~"~.;'.....",,,",~, ^ ~" < ,~ -Ii) ~ I ~,. ,"--, (') 0 0 c: N -n g. <- ,-0 -om c:: :L:-n rnrn .- IT'F z::!:' ~::-Jm zr;: "9 N >.' ~~' :?c) '!:2CJ -0 ~.~...y, c5:TI >0 :;JJ: ~7' () ~o "~rn J>c: ~ 9 ?3 N ~ -- 0 ~ !t! . .' " . ';,..1 O~'im"~" '..j;.,,-, ~ I hereby certify that I have served a copy of this paper upon all other parties or thei attorneys by: Regular i l Certifi d Mail Other: To: You are hereby notified to plead to the enclosed within thi y (30) days from service hereaf or a efault . may be entered aga BY: B SPECTOR ON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840/(215) 241-8844 (fax) Attorneys for Defendants, Carlisle Sports Emporium, Inc. and John Doe Employee =================================================================== PAULETTE HARRIS COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. 01-1403 Civil CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants ----------------------------------------- ----------------------------------------- DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE, EMPLOYEE'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Defendant, Carlisle Sports Emporium, Inc. ("Sports Emporium") and John Doe Employee ("John Doe") (collectively referred to hereinafter as "Answering Defendants") by and through their attorneys, Spector Gadon & Rosen, P.C., hereby file the following Answer with New Matter to Plaintiff's Complaint: 1. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the ""~ j,',. '- -"" '_"-" . 0, n y," ';', ~ ,'-' ~',"i ;,,~ . averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that Sports Emporium employed various individuals and did so on the date of the alleged incident, 03/13/99. It is specifically denied that any employees employed by Sports Emporium are named John Doe. 4. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. 5. Admitted in part, Denied in part. It is admitted that Sports Emporium employed various individuals and did so on the date of the alleged incident, 03/13/99. It is specifically denied that any employees employed by Sports Emporium are named John Doe. The remaining averments set forth in the foregoing paragraphs are denied as conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are denied. 6. Admitted in part, denied in part. It is admitted that Sports Emporium employed various individuals and did so on the date of the alleged incident, 03/13/99. The remaining allegations set forth in this paragraph of Plaintiff's Complaint are denied as conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 7. Admitted. -2- . "~ ' ~ ""L ,_,t"^ ^"~~j) < 8. Denied. The allegations set forth in this paragraph of Plaintiff's Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 9. Denied. After reasonable investigation, Answering Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 10. Denied. After reasonable investigation, Answering Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that Sports Emporium or any of its employees in any way acted recklessly in any fashion whatsoever. 11. Denied. The allegations set forth in this paragraph of Plaintiff's Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). -3- '"'-, _~ ' ~ I '''~ . '", -"~,~,, ,"'~ .~'~'''''''- -~ '":;.~j 12. Denied. The allegations set forth in this paragraph of Plaintiff's Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 13. Denied. The allegations set forth in this paragraph of Plaintiff's Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC. 14. Answering Defendants hereby incorporate by reference their responses to the paragraphs 1 through 13 of Plaintiffs' Complaint as if same were more fully set forth at length herein. 15, Denied. The averments set forth in this paragraph of Plaintiff's Complaint, including subparts (a) through (I) therein, contain conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the averments set forth in this paragraph of Plaintiff's Complaint, including subparts (a) through (I) therein, are generally denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that the conduct of Sports Emporium employees was in any dangerous, reckless or unsafe as alleged in subparagraph 15(d) of Plaintiff's Complaint. -4- , " . ," . . i^ -~' " --, -'P""~ __'"". 0'';>1-'; _~~ "'ii.'" WHEREFORE, Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee respectfully request that Plaintiff's Complaint be dismissed with prejudice and judgment be entered in their favor. -5- . - .u_'".,'" _,,"_ ,", .'" "' ",'~""",~., --",,<~,__,'"_ ,'_ ,',,"" "'''tffiieJi; COUNT II PAULETTE HARRIS vs. JOHN DOE 16. Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee hereby incorporate by reference their responses to paragraphs 1 through 15 of Plaintiff's Complaint as if same were set forth more fully herein at length. 17. Denied. The averments set forth in this paragraph of Plaintiff's Complaint, including subparagraphs (a) through (e) therein contain conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations set forth in this paragraph of Plaintiff's Complaint, including subparagraphs (a) through (e) therein are denied generally pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is specfically denied that Sports Emporium employees allowed another person to operate a go-kart in a dangerous or a reckless manner. WHEREFORE, Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee demand that Plaintiff's Complaint be dismissed and judgment entered in their favor. COUNT III PAULETTE HARRIS vs. TRAVIS BEST 18. Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee hereby incorporate by reference their responses to paragraphs 1 through 17 of Plaintiff's Complaint as if same were set forth more fully herein at length. -6- 19, The averments contained in this paragraph of plaintiff's Complaint, including subparts (a) through (i) therein are not addressed to Defendant Sports Emporium or Defendant, John Doe Employee, and, accordingly, no responsive pleading is required. To the extent that any of the averments contained within this paragraph of Plaintiff's Complaint are directed to Defendant, Sports Emporium or Defendant, John Doe Employee and/or require a responsive pleading, they are specifically denied with strict proof demanded. By way of further answer, it is specifically denied that any of Sports Emporium's employees at any time relevant hereto acted dangerously, recklessly or in any way in an unsafe manner. WHEREFORE, Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee request that Plaintiff's Complaint be dismissed and judgment entered in their favor. COUNT IV PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC., JOHN DOE AND TRAVIS BEST 20. Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee hereby incorporate by reference their responses to paragraphs 1 through 19 of Plaintiff's Complaint as if same were set forth more fully herein at length. 21. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). -7- "" ~ ^' ,~ . ill,,,"-- 22. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 23. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 24. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 25. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 26. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict -8- . ,- ~ -,,' . _ '. ~". ,~-,;,ne",~,.;:_-"~' ,',_,; "', proof demanded. By way of further answer, the allegations of this paragraph of Plaintiffs Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 27. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiffs Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee request that Plaintiff's Complaint be dismissed and judgment be entered in their favor. NEW MATTER 28. Plaintiff's complaint fails to state a cause of action or causes of action against answering Defendants upon which relief can be granted. 29. Plaintiff was comparatively negligent so as to totally bar her recovery in this case under the applicable provision of the Pennsylvania Comparative Negligence Act, 42 Pa.C.SA 9 7102; in the alternative, plaintiff's recovery is to be reduced in accordance with the amount of comparative negligence attributed to her. 30. Plaintiff assumed the risk of injury under the circumstances, thereby barring her from any recovery under the applicable law. 31. Plaintiff's claims are barred by the applicable Statute of Limitations and/or the Doctrine of Laches. 32. Answering Defendants deny that the injuries alleged in plaintiff's Complaint were caused or contributed to by any conduct on the part of answering -9- "" - - .~ _"'_,, 'u',~ ,^ '~",'",-",^ -" -'- 'I' " c', '.~~"-"fd, ',",~",",," "~"" -i' . Defendants, their agents, servants, workmen and/or employees acting with the course and scope of their employment. 33. Answering Defendants deny knowledge or information as to the occurrence of the incident as alleged in plaintiff's Complaint, but believe and therefore aver, that should same be proven at trial, the incident complained of was caused solely by the negligence and/or otherwise liability producing conduct of the plaintiff or other persons or entities over whom or which answering Defendants neither exercised control nor had any duty to control under the circumstances and for whom answering defendant bears no responsibility, either in fact or in law, under the circumstances, 34. Plaintiff's injuries were caused in whole or in part by persons or entities over whom Answering Defendants had no control or right to control. 35 The incident or damages alleged in plaintiff's Complaint were the result of the sole negligence and/or intentional conduct of plaintiff. 36. Answering Defendants deny that they are liable for any negligence which was the proximate cause of the injuries and/or damages alleged to have been sustained by plaintiff. 37. Plaintiff has failed to mitigate her damages. 38. Answering Defendants owed no duty nor breached any duty to plaintiffs. WHEREFORE, Answering Defendants respectfully request that plaintiff's Complaint be dismissed with prejudice and judgment entered in their favor. NEW MATTER IN THE NATURE OF A CROSSCLAIM ADDRESSED TO DEFENDANT, TRAVIS BEST PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 2252(0) -10- ~- , , "/;--0 .. '. , . ,~'.'--~ !!-:nkHI . 39. Answering Defendants hereby incorporate by reference, without admitting the truth of same, for purposes of this Rule 2252(d) New Matter all the averments contained in Plaintiffs' Complaint against Defendants, Carlisle Sports Emporium, Inc., John Doe, Employee and Travis Best. 40. Answering Defendants hereby incorporates by reference their responses to paragraphs 1 through 38 above comprising its Answer and New Matter to Plaintiffs' Complaint as if same were set forth fully herein at length. 41. Answering Defendants have denied the occurrence of the incident as alleged in Plaintiffs' Complaint as well as Plaintiffs' claimed injuries, damages and other losses, but believes and therefore avers, that should same be proven true, they were due solely to the acts and/or omissions, carelessness, recklessness, negligence and/or otherwise liability producing conduct of defendant, Travis Best and that Travis Best is alone liable to Plaintiff or are liable over to Answering Defendants for contribution and/or indemnity. WHEREFORE, Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee respectfully request that judgment be entered in their favor and against Plaintiffs and defendant, Travis Best. Respectfully submitted, BY: -11- ~, ' "'-0 ~. ^ .~ ~ ., ,',' ;,., ,",' ,~ IE,,' . VERIFICATION I, John T. Asher, III, Esquire, am attorney for Defendants, Carlisle Sports Emporium and John Doe, Ernployee and that I am authorized to rnake this verification on their behalf. I hereby verify that the facts set forth in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S.A. ~ 4904 relating to unsw rn falsification to authorities. D"'~J-.; je-- -12- , ~ -, .', -','",'. ,,~-, ",,,,,~,,,j"~'TI'~,_~""'.._~"'l','h',,"' c_" .., CERTIFICATE OF SERVICE I, JOHN T. ASHER, III, ESQUIRE, attorney for answering defendant hereby certify that a true and correct copy of defendant's Answer to plaintiffs' Complaint with New Matter was served by first class mail on June 20, 2002, upon the following counsel of record: Robert Baccari, Esquire Kats, Jamison, VanderVeen & Associates 25 Bustleton Pike Feasterville, P A 19053 Respectfully submitted, SPECTOR GADON & ROSEN, P.C. BY: [i\,j~~m_o!i!~~;;;i~f!J~i!@H41i'!~!~k~L!l"-';"';;<C_' "~_' ~.t<'~~~", _. ~, ~,<",~,,^, - ~" "^,,.,.. <,"~ '~'~,.~" _ ,,~ r "~ _, ,~,~ " ~ ,,~ -- -,.;- .~ _c . .,,- ,,~ "~~". 0 C) C 1"'<.) - t.;:::::; ~tP ;~ -:1} (~S:;. ,....) ," -~ -< t ~ '~I-' ~C:; -,~ (') ~f~ , , <'..:-" , ~ -'::-. C) Pc ':? 0 "l 7.: -I =< :::> )> (J1 :n --< ~~ . .;r Z5'{9 m " ~~ -. '-",' -~ . ~" .-~ ,.~., -'.'.-,~""-.',.~,,,- ';d"",~~! " ~ KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 PAULETTE HARRIS Plaintiff, Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. PLAINTIFF, PAULETTE HARRIS' ANSWER TO DEFENDANTS, CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE'S NEW MATTER 28. Denied. Paragraph 28 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiff s complaint fails to state a cause of action or causes of action against answering defendant upon which relief may be granted" is specifically denied. On the contrary, plaintiffs Complaint states a valid cause of action of negligence against answering defendants for which relief may be granted. 29, Denied. Paragraph 29 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiff was comparatively negligent so as to totally bar her recovery in this case,.," is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no mauner whatsoever to any act or tailure to act on the part of plaintiff. ." - '__J, ~'- -, +.' , -,--" .~"-""" "'-",'. ',< '~~ . 30. Denied. Paragraph 30 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiff assumed the risk of injury under the circumstances", ," is specifically denied, On the contrary, plaintiff assumed no known risk and the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants. 31. Denied, Paragraph 31 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that plaintiff s claims are barred by the statute oflimitations and/or the doctrine oflaches is specifically denied, On the contrary, plaintiff s claims arise out of an accident that occurred on or about March 13, 1999 and this action was commenced by Complaint filed on March 12, 2001. Clearly, plaintiff commenced this action with the Court within the applicable two-year statute oflimitations and without delay, 32. Denied. Paragraph 32 is a conclusion oflaw to which no responsive pleading is required, To the extent a pleading is required, the averment that the injuries sustained by plaintiff were not caused by any conduct on the part of answering defendants is specifically denied, On the contrary, the injuries sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act on the part of plaintiff. 33. Denied, Paragraph 33 is a conclusion of law to which no responsive pleading is required, To the extent a pleading is required, the averment that "the incident complained of was caused solely by the negligence and/or otherwise liability producing conduct of the plaintiff or other persons or entities over whom or which answering defendant neither exercised control nor had any duty to control under the circumstances...." is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness ~-i -,''''':'', "" -.J: . "".,," ~,',;', " , -""""'" ,,:';" "1:;,;""",.,.,. "~ .J~~:! .. and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act on the part of plaintiff. 34. Denied, Paragraph 34 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiffs injuries were caused in whole or in part by persons or entities over whom answering defendant had no control or right to control.. ,," is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act by plaintiff 35. Denied. Paragraph 35 is a conclusion oflaw to which no responsive pleading is required. To the extent a pleading is required, the averment that "the incident and damages alleged in plaintiffs Complaint were the result of the sole negligence and/or intentional conduct of plaintiff,..." is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act by plaintiff. 36. Denied. Paragraph 36 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that defendants' negligence was not the proximate cause of plaintiff's injuries and damages is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely and proximately by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act by plaintiff. 37. Denied. Paragraph 37 is a conclusion oflaw to which no responsive pleading is required. To the extent a pleading is required, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth or the falsity of the ,r" 0l1~~ ~-- ',';" . ~ :Z._' '-' :1o~',--, '>'..' ~,-',-, ~ ~'-. ';-"'" ",--. averments contained in Paragraph 37 of defendants' New Matter and such averments are deemed at issue. Strict proof of said averment is demanded at the trial of this case, 38. Denied, Paragraph 38 is a conclusion oflaw to which no responsive pleading is required. To the extent a pleading is required, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth or the falsity of the averments contained in Paragraph 38 of defendants' New Matter and such averments are deemed at issue. Strict proof of said averment is demanded at the trial of this case. WHEREFORE, plaintiff, Paulette Harris, demands judgment against defendants in an amount not in excess of $50,000.00, plus interest, costs and attorney's fees and such relief as this Court deems appropriate. 39-41. The averments in paragraphs 39-41 are not directed to answering plaintiff and therefore, no responsive pleading is required. WHEREFORE, plaintiff, Paulette Harris, demands judgment against defendants in an amount not in excess of $50,000.00, plus interest, costs and attorney's fees and such relief as this Court deems appropriate. TS, JAMISON, van der VEEN & ASSOCIATES arina Kats, Esquire Attorney for Plaintiff "~l~'f'i: . ," ,; ../.,', . ,- -, 'i ','_' "~,, ,_ - '--"','0..,"",'''''' ~~ ''"''~..!-' VERIFICATION I, Marina Kats, Esquire, hereby states that I am the attorney for plaintiffs in this action, and verifY that the statements made in the foregoing Answer to defendants' New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C,S.A. Section 4904 relating to unsworn falsification to authorities. KATS, JAMISON, van der VEEN & ASSOCIATES r Iv. Marina Kats, Esquire Attorney for plaintiff Dated: August 22, 2002 !l~~ - - l'" ,~ >" Co C' "., 'F-'__ . ",~, ''', -'''{'_.. " _; , ',' .;,,:,' ,,,;~.;,,~,,,. ~ -"" '- ,-.'", "~~t~, KATS,JAMISON, VANDER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, P A 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST NO: 01-1403 Civil Defendants. CERTIFICATE OF SERVICE I, the undersigned attorney for plaintiff, hereby certify that plaintiff s Answer to defendants' New Matter was served via first-class mail upon the following: John T. Asher, III, Esquire SPECTOR, GADON & ROSEN, P.C, Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, P A 19103 KATS, JAMISOf~ der VEEN & ASSOCIATES , 'if / 0>>1 V ar na Kats, Esquire Attorney for plaintiff Dated: August 22, 2002 i~~~lMl*t"''1t1I~iiffi!iI~~il;~~"~&"jutiMi11l~W:j!j@~ '''''',~~,,__" '" ~ ^4__"~ .. -., "~ " , - ~.,- , ~ -- . " ""'""~~-~ ~"" """,,,- ~,- ." ~-", ,- , ~" '~~, -:-'~~_iiSliN'" .~ ,~ " 'I~ .,1 ,:il :i (') 0 ,-, c: fv .....,...' ,.,. '71 "tlt''; .". -~j cpd': G~ ~ '''T'' 2r~~1 1"',) (n"::~' .',T1 ......~.,- (.;T., ~ '3-D ~6 -,') i<,:(~ ~Q :;'C-r -+~'" ('J -H pC> 1'" 7(") ~ .. Orn ~ """ --<. 0:> ~ ~