Loading...
HomeMy WebLinkAbout03-2142NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR. I.D. #84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Vo Plaintiff RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant ATTORNEYS FOR PLAINTIFFS CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. C.52--- JURY TRIAL PRAEC[PE TO ISSUE WRIT OF SUMMONg TO THE PROTHONOTARY: Kindly issue a Writ of Summons commencing an action against the named Defendant in the above-captioned matter. NELSON LEVINE deLUCA & HORST ....... / RICH~LD J. BOYD, t/' Attorney for Plaintiffs Dated: 5/2/03 NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR. I.D. #84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiff RONALD DUSCAK 205 East Clearview Drive Camp Hill, PA ! 7011-4011 OefendanL TO: WRIT OF SUMMONS RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 ATTORNEYS FOR PLAINTIFFS CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03 JURY TRIAL YOU ARE HEREBY NOTIFIED that the above Plaintiff has commenced an action against you in the above litigation. BY THE PROTHONOTARY DATED: SHERIFF'S RETURN - REGULAR CASE NO: 2003-02142 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COMERER DONALD ET AL VS DUSZAK RONALD , Sheriff or Deputy Sheriff of DAWN KELL Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon DUSZAK RONALD the DEFENDANT , at 205 EAST CLEARVIEW DRIVE CAMP HILL, PA 17011 at 1747:00 HOURS, on the 8th day of May by handing to RONALD DUSZAK a true and attested copy of WRIT OF SUMMONS , 2003 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 9 66 00 10 00 00 37 66 Sworn and Subscribed to before me this /~ ~ day of  ~&~23 A.D. /Pz;othonot ary So Answers: R. Thomas Kline 05/09/2003 NELSON LEVINE DELUCA HORST Deputy Sheriff Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. i.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CLrMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL PRAECIPE FOR RULE TO FILE COMPLAINT To the Prothonotary: Please enter a Rule upon Plaintiffs to file a Complaint within twenty (20) days of service thereof or suffer the entry of a judgment of non pros. Respectfully subrmtted, JOHNSTON & Dt~tMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: July 17, 2003 ') CPa. I.D. No. 43902 Attorneys for Defendant CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Praecipe for Rule to File Complaint upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (Attorneys for Plaintiffs) Dated: July 17, 2003 S A. DIAMONI) Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL RULE ..~13°r~ day of ~]f~, 2003, upon the Praecipe of De- AND NOW, this fendant, Ronald Duszak, a Rule is hereby entered upon the Plaintiffs to file a Complaint within twenty (20) days after service of this Rule or suffer the entry of a judgment of non pros. Attor~ndant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 .Phone: (717) 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONAI.13 DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL DEFENDANT'S OBJECTION TO PLAINTIFFS' NOTICE OF DEPOSITION DATED JULY 11, 2003 Defendant, Ronald Duszak, through his attorneys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C., hereby objects to the Notice of Deposition dated July I 1, 2003, served upon Defendant and demanding that Defendant attend a deposition in Blue Bell, Pennsylvania, on July 29, 2003, a true and correct copy of which Notice of Deposition is at- tached hereto as "Exhibit A" and incorporated herein by reference, on the following grounds: 1. Plaintiffs' Notice of Deposition, which has been served upon Defendant prior to the filing and service of any Complaint, violates Pennsylvania Rule of Civil Procedure No. 4007.1 (c), in that it fails to describe in any way the nature of the cause of action contemplated. 2. Plaintiffs' Notice of Deposition, which has been served upon Defendant prior to the filing and service of any Complaint, violates Pennsylvania Rule of Civil Procedure No. 4007.1(c), in that it fails to list or in any way indicate the matters to which the inquiry will be made. 3. Plaintiffs' Notice of Deposition, which has been served upon Defendant prior to the filing and service of any Complaint, violates Pennsylvania Rule of Civil Procedure No. 4007.1, and the controlling precedent of this Honorable Court, including .Anderson v. PennDOT, 47 D&C 3d. 429 (Cumberland County Court of Common Pleas 1987), in that there is no showing that pre-complaint discovery is necessary for the preparation of a pleading, or that it is anything other than a fishing expedition to determine if there is any cause of action at all against Defen- dant. 4. The deposition location provided for in the Notice, which is approximately 113 miles from the Courthouse, would, in the absence of an agreement or Court Order requiring Plaintiffs to reimburse additional costs and attorneys' fees incurred by Defendant, be unreason- able and unduly burdensome and costly for Defendant, who resides in Cumberland County, Pennsylvania. Respectfully submitted, JOHNSTON & D[~dV~OND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 //.tAlX,JES A. DIAMOND I.D. No. 43902 Attorneys for Defendant Dated: July 17, 2003 EXHIBIT A NELSON LEVINE de LUCA & HOI~T BY: RICItARD $. BOYD~ JR. I.D. ~403~ Four Seotry Parkway - Suite 300 Blue Bellt PA 19422 (610) 862-6522 DONALD AND SANET COMERER 2 M~lwood Lane Mechenlesbur~ PA 17050 Vo RONALD DUSCAK 20S Kas~ Clearvfew Drive Camp Hill, PA 17011.4011 Plaintiff A~fTORNEYS FOR PLAINTIFFS CUM~I~RLAND COUNTY COURT OF COMMON PLEAS NO. ./URY TRIAL NOTIC~ OF DEPOSITION TO: RONAV,n DU$CAK 20S East Clenrview Drive Camp Hill, PA 17011-4011 Please t~ke notice that on Tuesday, July 29, 2003 beginning at 10:00 a.m., your oral deposition will be take~ at thc law offices ef Nelson Levine de Luen & Horst, Four Sentry Parkway, Suite 300, Blue Bell, Pennsylvania before a Notary Public or some other officer authorized by the laws of the Commonwealth of Pennsylvania to administer oaths and shall con6nue thereafter until completed. DATED: ~lCHARD $. BOYD, JR. Attorney for PIMntiff VERIFICATION I, Ronald Duszak, hereby verify that the statements made in the foregoing Objections are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated: July 17, 2003 RONALD DUSZAK ~ CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Objections to Plaintiffs' Notice of Deposition upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue BelT, PA 19422 (Attorneys for Plaintiffs) Dated: July 17, 2003 J~. DtAMOND Attorne s for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717} 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN TIIE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL MOTION FOR PROTECTIVE ORDER STAYING DEPOSITION OF DEFENDANT AND CONDITIONING DISTANT DEPOSITION UPON REIMBURSEMENT BY PLAINTIFFS OF EXCESS COSTS Defendant, Ronaid Duszak, through his attorneys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C., hereby moves, pursuant to Rules 4012, 4008 and 4007.1 of the Pennsylvania Rules of Civil Procedure, for an Order relating to a general oral deposition of Defendant in Blue Bell, Montgomery County, Pennsylvania, demanded by Plaintiffs in a July 11, 2003 Notice of Deposition, requiring: (1) that such general deposition be stayed until after Plaintiffs have filed their Complaint, and (2) that Plaintiffs, as a condition to Defendant's attend- ing such deposition approximately 113 miles from the Courthouse, reimburse Defendant for rea- sonable excess expenses of attending the distant deposition. In support of his Motion, Defendant alleges as follows: 1. Plaintiffs, Donald and Janet Comerer, commenced this action against Defendant, Ronald Duszak, a Cumberland County resident, by a Praecipe for a Writ of Summons filed on or about May 6, 2003. 2. No complaint has been served upon Defendant as of the date of the instant Mo- tion. 3. A Notice of Deposition dated July ! 1, 2003 was received in the mail by Defen- dant demanding that he attend a general oral deposition at the offices of Plaintiffs' attorney, Richard J. Boyd, Jr., at Four Sentry Parkway, Suite 300, Blue Bell, Montgomery County, Penn- sylvania, on July 29, 2003. 4. A true and correct copy of Plaintiffs' Notice of Deposition--which Notice con- tained no docket number, misspelled Defendant's name, and included no Certificate of Service certifying when the Notice was mailed--is attached hereto as "Exhibit A" and incorporated herein by reference. 5. Rule 4007.1(c) of the Pennsylvania Rules of Civil Procedure, in pertinent part, states as follows: "(c) The purpose of the deposition and matters to be inquired into need not be stated in the notice unless the action has been commenced by writ of sum- mons and the plaintiff desires to take the deposition of any person upon oral ex- amination for the purpose of preparing a complaint. In such case the notice shall include a brief statement of the nature of the cause of action and of the matters to be inquired into." 6. Plaintiffs' Notice of Deposition, in violation of Rule 4007.1(c), provides for an oral deposition and does not include any sort of description of the cause of action from which the proper scope of discovery or relevance may be determined. 2 7. Plaintiffs' Notice of Deposition, in violation of Rule 4007. l(c), similarly fails to contain any itemization of the matters to be inquired into at the deposition. 8. A general deposition which is not framed by a statement of the cause of action or a list of matters into which inquiry may be made can only be proper under the Pennsylvania Rules of Civil Procedure subsequent to the filing of a complaint that frames the issues and pro- vides a benchmark for determining the proper scope of discovery. 9. Defendant has now filed and served a Praecipe for a Rule upon Plaintiffs to file a Complaint. After such Complaint is filed by Plaintiffs, the case will be ripe for a general oral deposition of Defendant. 10. In addition to being improper in that the demanded general deposition directly violates Rule 4007.1, the Blue Bell, Montgomery County, Pennsylvania location of the deposi- tion is distant from Cumberland County and, in the absence of an appropriate reimbursement by Plaintiffs under Rule 4008, would cause unreasonable expense, oppression and burden to Mr. Duszak. 11. As is reflected in the computerized driving directions printout from the Mapquest website, the approximate distance to the site of the noticed deposition from the Cumberland County Courthouse is 113.43 miles. A tree and correct copy of that printout, which is available online at www.mapquest.com/directions, is attached hereto as "Exhibit B" and incorporated herein by reference. 12. Defendant, Ronald Duszak, respectfully requests that this Honorable Court take judicial notice that the Blue Bell, Montgomery County, Pennsylvania location designated for his deposition is in excess of 100 miles from the Cumberland County Courthouse. 3 13. Rule 4008 of the Pennsylvania Rules of Civil Procedure provides as follows: "If a deposition is to be taken by oral examination more than one hundred miles from the courthouse, the court upon motion may make an order requiring the payment of reasonable expenses, including attorneys' fees, as the court shall deem proper." 14. Because of the distance of the Blue Bell, Pennsylvania site noticed for the deposi- tion, Defendant, a Cumberland County resident, and his Cumberland County attorney, will need to travel approximately 200 extra miles, round trip, which will take an estimated additional three hours, compared to a local Cumberland County deposition. Such extra distance will also force Defendant and his counsel to incur Turnpike tolls in order to take the shortest and most efficient route to the distant deposition. 15. Defendant's undersigned counsel, James A. Di~unond, Esquire, graduated, with honors, from the Dickinson School of Law, where he was a member of the Editorial Board of the Dickinson Law Review. He was admitted to the practice of law before the Pennsylvania Su- preme Court on October 31, 1985. On the date that Attorney Diamond first became admitted to the practice of law in 1986, he was associated with the firm of Handler & Gerber, P.C., and sub- sequent to that date has been continuously employed by that firm and its successors, most re- cently Johnston & Diamond, P.C. Attorney Diamond is currently admitted to practice in the United States Supreme Court; the Pennsylvania Supreme Court; the New Jersey Supreme Court; United States Court of Appeals for the Third Circuit; and United States District Courts for the Eastern, Middle and Western Districts of Pennsylvania. 16. A reasonable market hourly rate for Defendant's undersigned counsel is $160.00 per hour. 17. Defendant respectfully requests that this Honorable Court take judicial notice that $160.00 is a reasonable hourly fee in Central Pennsylvania for an attorney with the qualifications of Defendant's undersigned counsel. 18. In order to ameliorate any undue and unreasonable additional expenses, burden and oppression due to Plaintiffs' choice of a distant deposition site, it would be equitable and ap- propriate for this Honorable Court to order, pursuant to Rule 4008, that Plaintiffs reimburse De- fendant for three hours of attorneys' fees at $160.00 per hour; mileage at the current IRS rate for all mileage over 25 miles traveled by Defendant and his attorney to the deposition; Turnpike tolls; and any extra lost wages of Defendant, up to three hours, at the point that the deposition does occur. 19. Defendant's undersigned counsel, James A. Diamond, Esquire, in accordance with the Cumberland County Local Rules of Civil Procedure, by telephone calls to the office of Plaintiffs' counsel, Richard J. Boyd, Jr., Esquire, attempted to ascertain whether Plaintiffs concur in the within Motion but, as of the date of this Motion, has been unable to speak with Plaintiffs' counsel. Consequently, Defendant is unable to certify at this time that the within Motion is made with concurrence. Defendant, through counsel, will immediately advise the Court in the event that a concurrence of Plaintiffs is obtained. WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order providing as follows: 1. That no deposition of Defendant shall be taken by Plaintiffs until a reason- able amount of time--not less than seven (7) days--after Plaintiffs serve their Complaint upon Defendant, after which the deposition shall be set for a mutually convenient time agreed upon by the parties; and 2. That Plaintiffs shall pay to Defendant, through his attorney, an amount equal to three hours' worth of attorneys' fees, at a reasonable market rate of $160.00 per hour; plus mileage in excess of 25 miles, round trip, at the IRS rate for Defendant and his counsel to attend the deposition; Turnpike tolls; and any lost wages, up to three hours, substantiated by Defendant caused by his extra travel time, which reimbursement shall be made not later than fourteen (14) days after Defendant attends the deposition. Respectfully submitted, JOHNSTON & DI~vtOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: July 17, 2003 Attorneys for Defendant 6 EXHIBIT A NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR. I.D. ~4035 Four Sentry Parkway - Suite 300 Blue BellT PA 19422 (610) 862-6S22 DONALD ~ J~T CO~R 2 Me~ Lane M~h~csbu~. FA l~0S0 RONALD DUSCAK 205 East Clcarvlew Drive Camp Hill, PA 17011-4011 Plaintiff I~e/~da~t ATTORNEYS FOR PLAINTIFFS CUIVLBKRLAND coUNTY COURF OF COMMON PLEAS NO. .HYRY TRIAL ~OTICE OF DEPOSITION_ TO: RONAI~D DUSCAK 20S East Cl~arvlew Drive Camp Hill, PA 17011-4011 Please take notice that on Tuesday, July 29, 2003 beginning at 10:00 a.m., your oral deposition will be takea~ at the taw offices of Nelsou Levine de Lueu & Horst, Four Sentry Parkway, Suite 300, Blue BelL, pennsylvania before a Notary Public or some other officer authorizcd by the laws of the Commonwealth of Pcrmsylvama to administer oaths and shall continue thereafter until complctezi, Nelsou Levine de Luca & Horst BY: DATED: RICHARD J. BOYD, J~. Attorney for Plaintiff EXHIBIT B MapQuest: Driving Directions: North America Page ! of 2 r~ Send To PKmter BackTo Oir ti ns Start: W High St & N Hanover St Carlisle, PA 17013 US End: 4 Sent~Pkwy Blue Bell, PA 19422-2311 US All Your MontMy Bills! Lock-i~ the Lowest Mortgage Rates Reduce Your Auto insurance Payments Cut Your Credit Card Payments 50% Call 'four Friends & Eamily ~or ~ick Distance: 113.43miles Total Estimated Time: I hour, 59 minutes Distance ¢ Driving Directions .................................................................................. ~" 1. Start out going East on W HIGH ST/US-II/PA-641 toward S HANOVER 0 00 Miles ST/PA-34. . ............................................................................ [--I 2. Turn LEFT onto N HANOVER ST~US-Ii~PA-34. Continue to follow US- 3 05 Miles .................... .................................................................................................. [] 5. Keep LEFT at the fork in the ramp. . ............ [] 6, Merge onto PENNSYLVANTA TURNPIKE E (Portions toll), :L06.51 Miles [] 7. Take the exit- exit number 333- toward NORRISTOWN. . ...... ~.:?..1~.!~.~. '~'"'""~'j'~;~"~'[i'~'~l~"[~'~o"~k;'ihe";a~l'P toward NORRISTOWN. O. 17 Miles 0.07 Miles .~........?.:.~..~.??L~.~..~.~..!.~?~?~..?~.~.~: ............................................... .~.,...3~.:.~.?.~.~.!~.??~?.~: ............................................................................................. .~....~.~:.~?.~!~.?..~..~??~?~.~!.~.: ........................................................................... [] :1,2, Turn RIGHT onto WALTON RD. .../main.adp ? do=prt& 2n=MONTGOMER Y % 20COUNTY & l g=CGOjUiuLtUs % 3d& l y=US &2a=4 % 20Sentry~7 /17 /03 MapQuest: Driving Directions: North America Page 2 of 2 Start: W High St & N Hanover St Carlisle, PA ~t7013 US Inc.; 02003 Navigatio End: 4 Sentry Pkwy Blue Bell, PA 19422-231~- US 02003 MapCluemt.c~rn, In¢4 02003 Navigatbn ~eoh no bq Notes: ............................................................... .................................................................................................................. _A.!! right~ reserved. Use Subiect License/Copvriclht ............................................................................................................... These directions are informational only, No representation is made or warranty given as to their ................................................................................................................... content, road conditions or route usability or expeditiousness. User assumes all risk of use. NapQuest and its suppliers assume no responsibility .................................................................................................................. for any loss or delay resulting from such use. Privacy Policy 8~ Leeal Notices © 2003 MapQuest.com, Inc. All rights reserved. .../main.adp?do=prt&2n=MONTGOMERY%20COUNTY& 1 g=CGOjUiuLtUs%3d& 1 y=US &2a=4%20Sentry 7/17/03 VERIFICATION I, Ronald Duszak, hereby verify that the statements made in the foregoing Motion are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. RONALD DUSZAK Dated: July 17, 2003 CERTIFICATE OF SERVICE_ I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Motion upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (Attorneys for Plaintiffs) A. DIAMO Dated: July 21, 2003 Attorne s for Defend_an_!: JAMES A. DIAMOND~ ESQUIRE Pa. i.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 DONALD AND JANET CoMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL NOTICE OF DEFENDANT'S WITHDRAWAL OF MOTION FOR PROTECTIVE ORDER AS MOOT Defendant, Ronald Duszak, having previously filed a Motion for Protective Order with respect to a pre-Complaint deposition noticed by Plaintiffs for July 29, 2003, hereby notifies this Honorable Court, through his undersigned counsel, that Plaintiffs, through counsel, have volun- tarily withdrawn their demand for the deposition and, therefore, the said Motion is moot. Accordingly, Defendant hereby withdraws his Motion for Protective Order Staying Deposition of Defendant and Conditioning Distant Deposition Upon Reimbursement by Plain- tiffs of Excess Costs dated July 17, 2003. Respectfully submitted, JOHNSTON & DL~MOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 A. ~>fi. I.D. No. 43902 Attorneys for Defendant Dated: July 28, 2003 CERTIFICATE OF SERVICE. I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Notice of Withdrawal of Motion for Protective Order upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (Attorneys for Plaintiffs) Dated: July 28, 2003 s A. D~OND DONALD and JANET : COMER-ER, : Plaintiffs : RONALD DUSZAK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2142 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of July, 2003, upon consideration of Defendant's Motion for Protective Order Staying Deposition of Defendant and Conditioning Distant Deposition upon Reimbursement by Plaintiffs of Excess Costs, relating to a deposition scheduled for July 29, 2003, and the motion having been filed in the Prothonotary's Office on the afternoon of Friday, July 25, 2003, and having been received from the Court Administrator in the office of the undersigned judge on the afternoon of the date of this order, and the timing of the motion being such that the court does not have sufficient time to elicit a response from Plaintiff and to make a considered ruling upon the motion, the motion is denied as untimely filed. et~chard J. Boyd, Jr., Esq. Nelson, Levine, DeLuca & Horst Four Sentry Parkway Suite 300 Blue Bell, PA 19422 Attorney for Plaintiffs BY THE COURT, O?-30 Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL AFFIDAVIT OF SERVICE OF RULE TO FILE COMPLAINT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS.: case. I, James A. Diamond, Esquire, counsel for Defendant, depose and say as follows: 1. I am attorney of record for Ronald Duszak, Defendant in the above-referenced 2. On July 23, 2003, I served, in accordance with Rule 440 of the Pennsylvania Rules of Civil Procedure, a copy of this Honorable Court's July 21, 2003 Rule to File a Com- plaint, a tree and correct copy of which is attached hereto as "Exhibit A" and incorporated herein by reference, by depositing a copy of the same in the United States mail, first class postage pre- paid, addressed to Plaintiffs' counsel of record: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 Dated: o. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 On this, the ~r~ day of t~ ,2003, before me, a Notary Public, the undersigned officer, personally appeared Jam~s A. Diamond, known to me to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the pur- poses therein contained. In witness whereof, I hereunto set my hand and seal. NOTARY ~/~ NOTARIAL SEAL JOAN R. FRY, Notary PubJJ¢ Camp Hill, Cumberland County, PA Ely Comml¢81oe ExplrN Nov. 14~ 2006 Attomev~ for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. LD. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mcchanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 170114011 Defendant IN THE COURT OF COMMON PIJ~.AS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL RUI.F. fendant, Ronald Duszak, a Rule is hereby entered upon thc Plaintiffs to file a Complaint within twenty {20) days after service of this Rule or suffer the entry of a judgment of non pros. EXHIBIT A TRUE COPY FROM RECORD l~ T~itlm~y ,uteri, t here ur~to ~'~ my ~ CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Affidavit of Service upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (Attorneys for Plaintiffs) Dated: August 4, 2003 NELS. ON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR. I.D. #84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FOR PLAINTIFFS DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 RONALD DUSCAK 205 East Ciearview Drive Camp Hill, PA 17011-4011 Plaintiff Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in thc following pages, you must take action within ~vcnty (20) days after this complaint and notice arc served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-2142 JURY TRIAL LLEVE ESTAT DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SINO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE IENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800.990.9108 LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800.990.9108 AVISO NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR. I.D. #84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FOR PLAINTIFFS DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs RONALD DUSCAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant COMPLAINT Plaintiffs, by and through undersigned counsel, aver: CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-2142 JURY TRIAL 1. Plaintiffs are adult individual who, at all times relevant hereto, owned the home located at 6 Melwood Lane, Mechanicsburg, PA 17050. 2. Defendant is an adult individual who, at all times relevant hereto, resided at the address listed in paragraph 1 and who leased the home located at said address from Plaintiffs. (See a true and correct copy of the lease agreement attached hereto as Exhibit A). 3. Shortly before February 28, 2002, Defendant and an alleged acquaintance (who Defendant will not identify) installed a light fixture above a pool table in the basement portion of the home. As part of the installation, the cord for the light fixture was wrapped around a 2" x 4" piece of lumber multiple times and the cord was spliced into an extension cord and secured only with electrical tape. 4. On or about February 28, 2002, a fire erupted at the location of the cord for the light fixture, thereby destroying the home and much of the contents contained therein. 5. Upon inspection, it was found that the cord for the light fixture had been energized at the time of the fire. With the cord being energized and wrapped around the piece of lumber, it caused an overheating of the cord and electrical arcing. It was further found that the improper connection to the extension cord caused resistance heating and a breakdown of the cord. 6. As a result of the failure of Defendant and his alleged acquaintance to properly install the power cord for the light fixture, Plaintiff was caused to suffer damages as more fully set forth below. COUNTI-NEGLIGENCE 7. Plaintiff incorporates by reference the preceding paragraphs as though same were fully set forth at length herein. 8. The aforementioned damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability producing conduct of Defendant as follows: failing to properly install the power cord to the light fixture in the leased home so as to prevent the fire; failing to determine that a dangerous condition existed, i.e. an improperly installed power cord to the light fixture, which ultimately created an unreasonable risk of harm to Plaintiffs' property; failing to address and/or correct the aforementioned dangerous condition, thereby creating an unreasonable risk of harm to Plaintiffs' property; failing to exercise proper, adequate and reasonable care and control of the power cord to the light fixture; failing to adequately and reasonably warn Plaintiffs of the aforementioned unreasonably dangerous condition; failing to adequately and reasonably instruct, supervise, monitor and/or control his alleged acquaintance who allegedly installed the power cord to the light fixture so as to avoid the damages set forth above; failing to have the power cord to the light: fixture installed or inspected by a qualified electrician so as to ensure the installation was done properly and in conformity with the National Electric Code. 9. As a result of the negligence and/or other liability, producing conduct of Defendant, Plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Defendant in the amount of $108,615.28, plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II - BREACH OF CONTRACT 10. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 11. On or about March 2, 2001, Defendant entered into a contract with Plaintiff for the lease of the home set forth in paragraph 1 for a period of one year. (See Exhibit A). 12. The paragraph entitled "DAMAGE" within the leas;e states, "Damage to the Property caused by Resident, Resident's family or Resident's guests, will be repaired and costs billed to the resident and payable on demand." 13. Defendant breached the lease agreement by causing the aforementioned damage to the home and then failing to pay for said damage. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant in the amount of $108,615.28, plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST DATED: 8/7/03 BY: Attorney for Plaintiffs PARTIES SPECIFICS UTILITIES RENTAL A(HfEEMENT . horo.nderda-Ignet. "'--dlord",--dtheto"o'Ingnemad i~nc~lvldua~'al~,"', I~'~raundar ~t~ted "Resident: ' NAME RELATIONSHIP AGE, 3. It is agreed that no one will live In this dwelling other then those named above unless prior written approval le given by Landlord. It Is agreed that the Landlord rents the Resident the speolllo dwelling, et the rental charge, security deposit and for the period of time; all as Indicated below:' DWELLING ADDRESS TYPE LEASE DATES MOVE.IN DATE MONTHLY RENT SECURITY DEPOSIT PRO-RATA RENT OTHER CHARGES 7oo7 HARRI$~UR(~ J~ 0 8 ~OO~ It Is agreed that utilities shall be paid by the party Indloatad on the following chart: UTILITY LANDLORD RESIDENT Eleotrlolty t · leO tUaplaet~ · eleO lUaplset:l (g~) gLIWd , tue. Plaq).l · sled tueplset:l elco :lO eouesm.~d Sql ul peuDtg VIOLATION/ and money owing to Ihs Pro~y ~ ~ ~ DEFAULT IN when ne~lSia~. All Gl the Pro,siGns Pe~nlng tv. in Ihs Act of April 6, 1~1 P.L 6g are hereby walv~ by Ihs be In writing and sewed on the Resident by mailing same to the by Resident (either by nonpayment of rent when due, or by the failure to tlon of any governmental statute8 o~ regulations), Resident waives the requlreme~,. here~y authorizes and empowers any attorney of any ~ourl of re~ords of ~nnsylvanla dent and Io ~r. confess Judge~nt against Relldent an~ In favor of ~lord In ~leable ao(lon of eJ~tme, and Resident authorizes the Immediate Issuing of a writ of Possession for the premises. These powers g;=. not be exhausted by one exercise, and may be exemlsed during any extension of the inlllal le~m of this leas~ well as duping Ihs Initial term Itself. DAMAGE Damage to the Property caused by Resident, Reeldent'a family, or Re8ldent's guests, will be repaired and costs bill- ed to the Resident and payable on demand. REPAIR& Resident mu~t notify managemenl~ In writing and verbally of any problem in the apartment or house. The R~ident will ~ ~vl~ II the Resident should have repair8 done by an aulhoH~d outside oontra;Ior, or If repairs will ~ hanOled by the ~ndlord. . ACCESS TO Resident understands thai managemen will enter Resldenl'a ~ ~~equlpment, appl I~el, and safety ;ondltlon~.. from time Io time to Inspect and maintain Resident la responsible for keeping the~, entwway, patio, and grounds clean and neat at all times, and In compliance with Ihs prope~y rules which are hereby made a pitt of Realden118 responsible for maintaining the smoke detector, II Installed In th~ In working order at all limes. Resident agree8 not lo have any pet or pet8 In the Resident muel Insure Reeldlfll'8 own furnishings and family. The Properly Insurance does not ;over any damage to a Resldeni or I~ prope~y of a Resident for any reason, Including fire, water leaks, equl~menl lailures, vandallsm~ theft; smoke, el~lHoal malfun;ilon8, or any WARRANT A copy of this Rental Agreement shall be sufficient warrant filed with a confession of Judgement tot rent unpal~ o~ upon ~onfl~alon of Judgmen In eJeolment, by "Landlord" Io the I~al District Ju=tloe. Resident here~y~ Pe~lssion to Landlord for monthly inspections and/or to s ' ~ ' , , , ..... ~, ~u~men, or ~nt~ors at reasonable hours of CARE OF PROPERTY SMOKE DETEC, TOR NO PETS -'-- INSURANC'E VERIFICATION RICHARD J. BOYD, JR., ESQUIRE hereby states that he is the attorney for the Plaintiffs and that the facts contained in the foregoing Complaint are true and correct to the best of his knowledge, information and beliefi He understands that the statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904 concerning falsification to authorities NELSON LEVINE de LUCA & HORST BY: RICHARD J.~ ~/OYD~, JR'~ ESQUIRE Attorney For Plaintiffs DATED: 8~7/03 CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the attached Plaintiffs' Complaint has been sent via regular mail to the following: James A. Diamond, Esquire Johnston & Diamond Suite 100 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 NELSON LEVINE de LUCA & HORST BY: RICHARD J. ~BOYD, Jl~, ESQ Attorney for Plaintiff DATED: 8/7/03 ~r Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: {717) 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL NOTICE TO PLEAD TO: Donald and Janet Comerer, Plaintiffs c/o Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 You are hereby notified to file a written response to the within Preliminary Objections within twenty (20) days from service hereof, or a judgment may be entered against you. Dated: August 25, 2003 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Attorneys for Defimclant Ronald Duszak Attorne s for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON &DtAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 ~ 975-5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL ORDER STRIKING OFF COMPLAINT FOR IMPROPER VERIFICATION AND NOW, this day of _ ,2003, the Preliminary Objections I and II of Defendant to strike off the Complaint against him for failure of plaintiffs to conform to the verification requirements of Pennsylvania Rules of Civil Procedure 1024, are GRANTED. Plaintiffs are given days from the entry of this Order to file an Amended Complaint with a proper verification. Failure to so amend will result in this Court entering an Order dismissing the action. (and/or) ORDER STRIKING OFF IMPERTINENT MATTER AND NOW, this day of ., 2003, Preliminary Objection III of Defendant to strike off the Complaint against him on the ground of impertinent matter is GRANTED. It is hereby ORDERED that paragraphs 3 mad 5 of Plaintiffs' Complaint are stricken. It is FURTHER ORDERED that the references to demands for relief in the form of at- torneys' fees and interest are stricken from the prayers for relief with respect to Counts I and II. (and/or) ORDER STRIKING OFF COMPLAINT FOR FAILURE TO ATTACH COMPLETE, LEGIBLE COPY OF ALLEGED WRITTEN CONTRACT AND NOW, this day of ,2003, Preliminary Objection IV of Defendant to strike off the Complaint against him for failure of Plaintiffs to conform to the re- quirement of Pennsylvania Rule of Civil Procedure 1019 to attach a complete, legible copy of the alleged writing upon which the claims in Count II are based is GRANTED. Plaintiffs are given __ days from the entry of this Order to file an Amended Complaint attaching a complete, legible copy of the alleged writing upon which the claims are based; or alternatively to include proper allegations regarding the unavailability of such writing to Plaintiffs, together with allega- tions setting forth the substance of the omitted portion of the writing. Failure to so amend will result in this Court entering an Order dismissing the action. (and/or) ORDER STRIKING OFF IMPROPER ALLEGATIONS PLEADING EVIDENTIARY MATTER AND NOW, this day of , :2003, Preliminary Objection V of Defendant on the ground that evidentiary matter as opposed to material facts was pleaded in Paragraph 5 of the Complaint is GRANTED. It is ORDERED that paragraph 5 of the Complaint is stricken. (and/or) 2 ORDER REQUIRING FILING OF MORE SPECIFIC COMPLAINT AND NOW, this day of ,2003, Preliminary Objection VI of Defendant on the ground of insufficient specificity of pleading i:; GRANTED. It is hereby OR- DERED that Plaintiffs file a more specific Complaint, in particular paragraphs 2 through 9, 12 and 13; as well as Count II, to the extent it insufficiently identifies the Landlord or the party or parties on behalf of whom Count II is brought. Plaintiffs shall, at a minimum, make their Com- plaint more specific in the following respects: a. Specifically setting forth facts regarding the general nature and categories of personal property claimed to have been destroyed, and whether such property is claimed by Plaintiffs to have been owned by them; b. Pleading with specificity the identity of Plaintiff or Plaintiffs on behalf of whom Count II is asserted; c. Pleading specifically who was the alleged Landlord as of February 28, 2002, with respect to the property at issue; d. Setting forth material facts, as opposed to the conclusions of law set forth in Paragraph 8 of the Complaint; e. Pleading with specificity how long prior to February 28, 2002 Plaintiffs al- lege the light referred to in Paragraph 3 of the Complaint was allegedly installed; f. Setting forth material facts in support of the liquidated amount of $108,615.28 as set forth in the prayers for relief for both Counts I and II; and g. Setting forth allegations of material fact of whether any bills for damages were sent to Defendant, and the details of any such bills and of any refusal to pay the bills 3 if such is alleged, and the details of the occurrence or non-.occurrence of other contractual conditions precedent. (and/or) ORDER DISMISSING PLAINTIFF JANET COMERER'S CLAIM IN COUNT II OF COMPLAINT FOR LEGAL INSUFFICIENCY AND NOW, this _ day of ,20(13, Preliminary Objection VII of Defendant to dismiss the cause of action of Janet Comerer against him in Count II in the nature of a demurer, is GRANTED. Count II of Plaintiffs' Complaint is dismissed as it relates to Plain- tiff Janet Comerer. (and/or) ORDER DISMISSING COUNT II IN ITS ENTIRETY FOR LEGAL INSUFFICIENCY AND NOW, this _ day of _, 2003, Preliminary Objection VIII of Defendant in the nature of a demurer raising the failure to state a claim on behalf of either Plain- tiff under Count II is GRANTED. It is ORDERED that Count II of Plaintiffs' Complaint is dis- missed in its entirety. (and/or) ORDER STRIKING OFF COMPLAINT FOR IMPROPER INCLUSION OF MULTIPLE FACTUAL ALLEGATIONS PER PARAGRAPH AND NOW, this day of ,2003, Preliminary Objection IX of Defendant to strike off the Complaint against him for failure of Plaintiffs to conform to the re- quirements of Pennsylvania Rule of Civil Procedure 1022 is GRANTED. Plaintiffs are given _ days from the entry of this Order to file an Amended Complaint which contains, as far as 4 practicable, only one material allegation per paragraph. Failure to so amend will result in this Court entering an Order dismissing the action. BY THE COURT: 5 At er o s for JAMES A. DIAMOND, ESQUIRE Pa. I,D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone:~5500 DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs V. RONALD DUSZAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 03-2142 Civil Term JURY TRIAL PRELIMINARY OBJECTIONS OF DEFENDANT TO COMPLAINT RONALD DUSZAK, Defendant, through his attorneys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C., preliminarily objects to the Complaint against him as follows: I. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1024(c) - IMPROPER VERIFICATION 1. A Complaint dated August 7, 2003 was filed by plaintiffs, Donald and Janet Comerer, through their attorney, Richard J. Boyd, Jr., Esquire, against Defendant. A true and correct copy of the said Complaint, with its Exhibit, is attached hereto as "Exhibit 1" for the convenience of the Court. 2. The Verification to the said Complaint was not made by either of the Plaintiffs, Donald Comerer or Janet Comerer, but rather was made by their attorney, Richard J. Boyd, Jr., Esquire. 3. Pennsylvania Rule of Civil Procedure 1024(c) requires as follows: "(c) The verification shall be made by one or more of the parties filing the pleading unless ail the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verifi- cation may be made by any person having sufficient knowledge or information and belief and shail set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party." Pa. R. Civ. Proc. 1024(c) (emphasis added). 4. Rule 1028(a)(2) provides that a party may preliminarily object by way of a Mo- tion to strike off a pleading because of a lack of conformity to a Rule of Court. 5. The Verification of Plaintiffs' Complaint is defe, ctive under Rule 1024(c) to the extent it is improperly verified by the attorney for Plaintiffs, and not by a party, and does not ar- ticulate any reason for the lack of a party verification. 6. This Preliminary Objection raises issues that cml be determined from facts of re- cord. WHEREFORE, Defendant respectfully requests that the Complaint against him be stricken. (and/or) II. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1024(b) - IMPROPER VERIFICATION OF INCONSISTENT FACTS 7. Rule 1024(b) of the Pennsylvania Rules of Civil Procedure requires that if a pleading contains inconsistent averments of fact, a verification must state that the signer has been unable, after a reasonable investigation, to determine which of the inconsistent versions of the 2 facts are tree, and must further state that he or she has sufficient knowledge and information to believe that one of them is true. 8. paragraph 2 of Plaintiffs' Complaint on one hand incorporates an allegedly true and correct copy of a Lease Agreement in which solely plaintiff Donald Comerer is the Landlord who rented the property in question to the Defendant. Howew:r, the same Paragraph 2 of the Complaint unequivocally asserts the following incompatible allegation: "Defendant is an adult individual who, at all times relevant hereto, resided in the address listed in paragraph 1 and who leased the home located at the said address from Plaintiffs." 9. The Verification attached to Plaintiffs' Complaint, in addition to failing to comply with the requirement that it be made by a party, violates Rule 1024(b) of the Pennsylvania Rules of Civil Procedure because it fails to acknowledge the inconsistency of the asserted facts; it does not indicate that plaintiffs have conducted any reasonable investigation to ascertain the truth of either version of the facts; and it does not state that the signer has been unable to determine which version of the facts is tree, but that he has sufficient knowledge or information to believe one of them is true. 10. Rule 1028(a)(2) provides that a party may preliminarily object by way of a Mo- tion to strike off a pleading because of a lack of conformity to a Rule of Court. 11. This Preliminary Objection raises issues that can be determined from facts of re- cord. WHEREFORE, Defendant respectfully requests that the Complaint against him be stricken. (and/or) 3 IlL PRELIMINARY OBJECTION ON THE GROUND OF IMPERTINENT MATTER 12. Both Paragraph 3 and Paragraph 5 of Plaintiffs' Complaint contain allegations of fact that are wholly irrelevant and immaterial to any of the issues of this action, being completely extraneous to plaintiffs' causes of action or Defendant's defense. Such allegations should be stricken as having no bearing on, and as tending to neither prove nor disprove, any issue in this case. 13. In this regard, paragraph 3 of plaintiffs' Complaint alleges that "Defendant will not menu y a certain "alleged acquaintance." 14. Allegations concerning any alleged failure to identify any individual in connec- tion with some unspecified request apparently occurring after the alleged cause of action arose could not be used to prove or disprove the existence of any legitimate cause of action, but could cause confusion for the fact-finders and could unfairly prejudice Defendant by improperly imply- ing that Defendant had some pre-litigation obligation to identify someone to the Plaintiffs. 15. Similarly, the vague and misleading allegation in paragraph 5 of the Complaint apparently concerning some self-serving ~nspect~on at an unspecified time by an unspecified individual, presumably occurring subsequent to the alleged cause of action having arisen, is irrelevant, impertinent and immaterial to the elements, issues and defenses of the alleged cause of action. Such vague and potentially misleading allegations of any post-cause-of-action "inspection" in the Complaint could confuse the finders of fact to the prejudice of Defendant. 16. In addition, the prayers for relief regarding both Counts I and II set forth demands for relief in the form of interest and attorneys' fees without any factual allegations to support the award of any such relief. 4 17. Prayers for damages that are not legally recoverable in connection with a cause of action as pleaded are, as a matter of law, impertinent and irrelevant to the cause of action, and are subject to a Motion to strike. See, ~.g., Hudock v. Donegal IVlutual Insurance CompanY, 438 Pa. 272, 264 A.2d 668 (1970). 18. This Preliminary Objection raises issues that can be determined from facts of re- cord. WHEREFORE, Defendant respectfully requests that the: said impertinent allegations in paragraphs 3 and 5, and the references to attorneys' fees and interest in the prayers for relief with respect to both Counts I and II, be stricken. (and/or) IV. PRELIMINARY OBJECTION RAISING FAILURE OF PLAINTIFFS TO ATTACH A COMPLETE, LEGIBLE COPY OF THE ALLEGED WRIT- TEN CONTRACT 19. In the copy of the Complaint served upon the undersigned Attorney for Defen- dant, Plaintiffs alleged in paragraph 2 of the Complaint that a true and correct copy of the Lease was attached. 20. The document attached to the Complaint as "Exhibit A," however, is, on its face, incomplete and illegible, in part, to the extent that the top of page 2 of the two-page Lease was apparently folded over during photocopying by plaintiffs, causing a potentially critical portion of the Lease to be omitted. 21. The failure of plaintiffs to attach a complete and legible copy of the Lease Agreement violates Rule 1019 of the Pennsylvania Rules of Civil Procedure. 5 22. Rule 1019(i) provides that whenever a claim is based upon a writing, the pleader is required to attach a copy of the writing, or material parts thereof; but if the writing or copy is not accessible to the pleader, the pleader must allege that and set forth the substance of the writ- ing. 23. Count II of Plaintiffs' Complaint purports to be based upon a written Lease Agreement, and Plaintiffs allege in paragraph 2 that a true and correct copy of that writing is at- tached, but from the record it is clear that the complete true and correct copy is not attached due to the apparent photocopying error. 24. Because the omitted section appears to directly apply to alleged monetary defaults under the Lease, it could potentially be critical to claims and defenses in this action. 25. Plaintiffs have set forth no allegation, as required by Rule 1019(i), claiming that the complete copy of the two-page Lease Agreement is not accessible to plaintiffs, and Plaintiffs do not attempt to set forth the substance of the omitted section of the Lease. 26. This Preliminary Objection raises issues that can be determined from facts of re- cord. WHEREFORE, Defendant respectfully requests that Count II of plaintiffs' Complaint against him be stricken for Plaintiffs' failure to conform with Rule 1019(0. (and/or) V. PRELIMINARY OBJECTION ON THE GROUND OF LACK OF CON- FORMITY TO LAW OR RULE OF COURT: EVIDENTIARY MATTER 27. paragraph 5 of the Complaint may be interpreted as setting forth evidentiary mat- ters only, or as an attempt to plead evidence in lieu of ultimate facts. 6 28. In this regard, paragraph 5 vaguely refers to some sort of post-cause-of-action "inspection" and alleged findings from that inspection by an unspecified individual. 29. Pennsylvania Rules of Civil Procedure 1019(a) requires that only "material facts on which a cause of action or defense is based" be alleged. 30. This Preliminary Objection raises issues that can be determined from facts of re- cord. WHEREFORE, Defendant requests that his Preliminary Objection be sustained and that the Complaint against him containing the improper allegations of a claimed inspection after the cause of action arose be stricken. (and/or) VI. PRELIMINARY OBJECTION ON THE GROUND OF INSUFFICIENT SPECIFICITY OF PLEADING 31. Defendant makes this Objection pursuant to Rule 1028(a)(3) of the Pennsylvania Rules of Civil Procedure on the ground that certain critical allegations in Plaintiffs' Complaint lack sufficient specificity to allow Defendant to answer, prepare a defense, or prepare for trial. 32. Plaintiffs, for example, in paragraph 4 of their Complaint, allege without any meaningful specificity that "much of the contents" in the home were destroyed, but fail to make sufficient allegations for the Defendant to even determine the generalized nature of such alleged contents and, more importantly, whether Plaintiffs even allege that they owned or had another meaningful interest in any such unspecified personalty. 33. Plaintiffs, throughout their Complaint, including particularly in paragraphs 6, 8, 9 and 13, and in their prayers for relief, fail to set forth sufficient allegations for Defendant to de- termine the alleged basis for the liquidated $108,615.28 claim for damages. 7 34. Underscoring the lack of specificity concerning damages and losses claimed, the Complaint, in Paragraph 6, expressly promises to delineate the damages later in the Complaint by alleging that "Plaintiff [sic] was [sic] caused to suffer damages as more fully set forth below" (emphasis added). Immediately thereafter, in paragraph 8 of the Complaint, which is separated from paragraph 6 by merely an allegation incorporating by reference all prior paragraphs, al- leges, "The aforementioned damages, were the direct and proximate result of the negligence, carelessness, recklessness and/or other liability....' (emphasis added). 35. Thereafter, without any factual allegations of any kind concerning the nature of any alleged personal property losses or of any "additional expenses" incurred, Plaintiffs---or one of them--ambiguously allege in paragraph 9 of the Complaint that "Plaintiff sustained and in- curred damages to his real and personal property, along with iraposition of additional expenses, in an amount in excess of Fifty Thousand Dollars ($50,000.00)." 36. In the prayers for relief that follow both Counts I and II, Plaintiffs demand, among other things, a liquidated amount of $108,615.28. 37. The Complaint fails to sufficiently set forth any allegations of fact regarding the alleged specific damages of $108,615.28 set forth in the prayen~ for relief. 38. Plaintiffs' Complaint, in Count II, also fails to sufficiently specify whether that entire Count is asserted on behalf of both Plaintiffs or on behalf of only one of them, in that Count II inconsistently refers to Plaintiffs in both the plural and singular, and the Complaint as- serts internally inconsistent facts regarding the identity of the Landlord. 39. The lack of sufficient specificity regarding the identity of the Landlord asserting the cause of action in Count II is particularly significant in that the Complaint is already inter- nally inconsistent to the extent it asserts mutually exclusive facts by attaching an alleged Lease Agreement in which only Plaintiff Donald Comerer is the Landlord; and also expressly alleges in Paragraph 2 of the Complaint that Defendant leased the home in question from both Plaintiffs. 40. This lack of specificity and inherent ambiguity regarding the identity of the claimed Landlord makes it impossible for Defendant to prepare hlis defense regarding Count II. 41. Count I of the Complaint also fails to allege sufficient actual facts to support the 23-1ine4ong allegation in Paragraph 8 which sets forth various bald conclusions of law regarding alleged negligence, carelessness and recklessness. 42. In addition, Plaintiffs fail to allege with requisite specificity the allegations of time concerning when Defendant allegedly engaged in the installation of the light fixture, assert- ing in Paragraph 3 of the Complaint only that Defendant did so "shortly before" February 28, 2002. 43. Plaintiffs' generalized and conclusory averments of negligence in paragraph 8 of the Complaint fail to conform to the Pennsylvania Rules of Civil Procedure requiring specific fact-pleading and must therefore be stricken from the Complaint. 44. Regarding Count II, Plaintiffs fall to plead with sufficient specificity whether any alleged bills were sent by Plaintiffs to Defendant, or the details concerning any billing or alleged compliance with the lease's default procedures. Paragraph 112 of the Complaint, however, ex- pressly alleges facts showing that such billing is a condition precedent to any cause of action. 45. Without any allegations of material fact regarding any alleged billing of Defen- dant, or regarding any other alleged satisfaction by Plaintiffs of any contractual conditions precedent to the asserted cause of action, it is impossible for Defendant to prepare his defense in the event that this Court does not sustain his separate Preliminary Objection to Count II on the ground of legal insufficiency. 46. Rule 1028(a) of the Pennsylvania Rules of Civil Procedure provides that a defen- dant may object to a pleading because of insufficient specificity. 47. This Preliminary Objection raises issues that can be determined from facts of re- cord. WHEREFORE, Defendant respectfully moves this Court for an Order requiring Plaintiffs to make their Complaint more specific in the following respects: a. Specifically setting forth facts regarding tt'~e general nature and categories of personal property claimed to have been destroyed, and whether such property is claimed by Plaintiffs to have been owned by them; b. Pleading with specificity the identity of Plaintiff or Plaintiffs on behalf of whom Count II is asserted; c. Pleading specifically who was the alleged Landlord as of February 28, 2002, with respect to the property at issue; d. Setting forth material facts, as opposed to the conclusions of law set forth in Paragraph 8 of the Complaint; e. Pleading with specificity how long prior to February 28, 2002 Plaintiffs al- lege the light referred to in Paragraph 3 of the Complaint was allegedly installed; f. Setting forth material facts in support o:[ the liquidated amount of $108,615.28 as set forth in the prayers for relief for both Counts I and II; and 10 g. Setting forth allegations of material fact of whether any bills for damages were sent to Defendant, and the details of any such bills and of any refusal to pay the bills if such is alleged, and the details of the occurrence or non-occurrence of other contractual conditions precedent. (and/or) VII. ALTERNATIVE PRELIMINARY OBJECTION IN THE NATURE OF A DEMURER TO CLAIMS OF PLAINTIFF JANET COMERER IN COUNT II OF COMPLAINT ON GROUND OF LEGAL INSUFFICIENCY OF PLEADING 48. To the extent that the Complaint and its attached Lease Agreement are interpreted by this Court as showing on the face of the pleading that Donaid Comerer was the sole Landlord with respect to Defendant at times relevant to the pleaded cause of action, any claim by the other Plaintiff, Janet Comerer, under Count II fails to state a claim as a matter of law. 49. Count II of the Complaint pmports to set forth a contract-breach cause of action specifically based on the written Lease attached to the Complaint as "Exhibit A." 50. The attached Lease of record incorporated into Plaintiffs' Complaint shows that Plaintiff Janet Comerer is not a party to the Lease Agreement. 51. As a matter of law, Count II fails to state a clai~n upon which relief can be granted on behalf of Ms. Comerer. WHEREFORE, Defendant respectfully requests that the claims of Janet Comerer against Defendant as set forth in Count II of the Complaint be stricken and dismissed with prejudice. (and/or) 11 VIII. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURER RAIS- ING FAILURE TO STATE A CLAIM ON BEHALF OF EITHER PLAIN- TIFF IN COUNT II 52. Paragraph 12 of the Complaint expressly sets forth as a fact that the Lease re- quires that the alleged damages actually be billed to the resident as a condition precedent to their being due. 53. No material facts of any kind are alleged to support that such condition precedent has been met. 54. As a matter of law, Count H fails to state a claim upon which relief may be granted. WHEREFORE, Defendant respectfully requests that the claims of as set forth in Count II of the Complaint be stricken and dismissed with prejudice. (and/or) IX. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM WITH PENNSYLVANIA RULE OF CIVIL PROCEDURE 1022 REQUIR- ING ONE FACTUAL ALLEGATION PER PARAGRAPH 55. Rule 1022 of the Pennsylvania Rules of Civil Procedure states as follows: "Every pleading shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation." 56. Paragraph 3 of Plaintiffs' Complaint contains a multitude of factual allegations, including that Defendant, jointly with another individual, installed a certain light fixture; that De- fendant, at some unspecified time apparently after the cause of action arose, would not identify the individual to someone; that the cord for the light fixture was wrapped by around a two-by- four piece of lumber; that the cord was spliced into an extension cord; and that either the light or the splice was "secured only with electrical tape." 12 57. Similarly, Paragraph 5 of the Complaint contains multiple allegations, including some vague allegations about an "inspection" having occurred; that the cord was energized at the time of the fire; that the cord was wrapped around a two-by-four; that the cord was caused to overheat; that the cord had electrical arcing; that someone found some sort of connection to the extension cord to be improper; that someone found, at some unspecified point in time, that a connection unequivocally "caused" resistance heating; and that someone unequivocally found, at some unspecified point in time, that a connection unequivocaJly "caused" a breakdown of some cord. 58. Paragraph 8 of the Complaint contains myriad vague conclusions of law and mul- tiple generalized statements of fact ranging from implied or express allegations that an electri- cian was required to install and inspect any extension cord; th~,t a certain electrical code applied; that there was some unspecified "unreasonable risk of harm;" that a power cord to a light fixture was "improperly installed;" that them was some unspecified failure to "control" a power cord; that there was some unspecified failure to exercise proper "care" of a power cord; that them was some duty of Defendant to warn Plaintiffs of something; that Plaintiffs were not warned or aware of something about the power cord; and that Defendant failed to take some unspecified steps to "address and/or correct the aforementioned dangerous condition." 59. Plaintiffs' inclusion of multiple allegations in one paragraph throughout the Com- plaint violates Rule 1022 of the Pennsylvania Rules of Civil Procedure, and makes it impossible for Defendant to meaningfully plead to, or prepare defenses to, the confusing array of allegations smeared into single paragraphs. 13 60. Rule 1028(a)(2) provides that a party may preliminarily object by way of a Mo- tion to strike off a pleading because of a lack of conformity to a Rule of Court. 61. This Preliminary Objection raises issues that can be determined from facts of re- cord. WHEREFORE, Defendant respectfully requests that the Complaint against him be stricken. Respectfully submitted, JOHNSTON & DI~v~OND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: August 25, 2003 Ea(. I.D. No. 49902 Attorneys for Defendant Ronald Duszak 14 EXHIBIT 1 (Complaint of Plaintiffs) N~SON LEVINE de LUCA & Hc '~ST BY: RICHARD J. BOYD, JR. I.D. #84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FC~ pLAINTIFFS DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 RONALD DUSCAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Plaintiff Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER CUMBERLAND COUNTY COURT OF coMMoN PLEAS NO. 03-2142 JURY TRIAL LLEVE ESTAT DEMANDA A UN ABOGADO INMEDIATAMENTE. Si NO TIENE ABOGADO O SINO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE IENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800.990.9108 Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800.990.9108 AVISO NELSON LEVINE de LUCA & HC' 3T BY: RICHARD J. BOYD, JR. I.D. 084035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FO- pLAINTIFFS DONALD AND JANET COMERER 2 Melwood Lane Mechanicsburg, PA 17050 Plaintiffs RONALD DUSCAK 205 East Clearview Drive Camp Hill, PA 17011-4011 Defendant COMPLAINT Plaintiffs, by and through undersigned counsel, aver: CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 03-2142 JURY TRIAL 1. Plaintiffs are adult individual who, at all times relevant hereto, owned the home located at 6 Melwood Lane, Mechanicsburg, PA 17050. 2. Defendant is an adult individual who, at all times relevant hereto, resided at the address listed in paragraph I and who leased the home located at said address from Plaintiffs. (See a tree and correct copy of the lease agreement attached hereto as Exhibit A). 3. Shortly before February 28, 2002, Defendant and an alleged acquaintance (who Defendant will not identify) installed a light fixture above a pool table in the basement portion of the home. As part of the installation, the cord for the light fixture was wrapped around a 2" x 4" piece of lumber multiple times and the cord was spliced into an extension cord and secured only with electrical tape. 4. On or about February 28, 2002, a fire erupted at the location of the cord for the light fixture, thereby destroying the home and much of the contents contained therein. 5. Upon inspection, it was found that the cord for the light fixture had been energized at the time of the fire. With the cord being energized and wrapped around the piece of lumber, it caused an overheating of the cord and electrical arcing. It was further tbund that the improper connection to the extension cord caused resistance heating and a breakdown of'the cord. 6. As a result of t? ~'ailure of Defendant and his alleged ac -~aintance to properly install the power cord for the light fixture, Plaintiff was caused to suffer damages as more fully set forth below. COUNT I - NEGLIGENCE 7. Plaintiff incorporates by reference the preceding paragraphs as though same were fully set forth at length herein. 8. The aforementioned damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability producing conduct of Defendant as follows: a. failing to properly install the power cord to the light fixture in the leased home so as to prevent the fire; b. failing to determine that a dangerous condition existed, i.e. an improperly installed power cord to the light fixture, which ultimately created an unreasonable risk of harm to Plaintiffs' property; d. failing to address and/or correct the aforementioned dangerous condition, thereby creating an unreasonable risk of harm to Plaintiffs' property; e. failing to exercise proper, adequate and reasonable care and control of the power cord to the light fixture; f. failing to adequately and reasonably warn Plaintiffs of the aforementioned unreasonably dangerous condition; g. failing to adequately and reasonably instruct, supervise, monitor and/or control his alleged acquaintance who allegedly installed the power cord to the light fixture so as to avoid the damages set forth above; h. failing to have the power cord to the light fixture installed or inspected by a qualified electrician so as to ensure the installation was done properly and in conformity with the National Electric Code. 9. As a result of the negligence and/or other liability producing conduct of Defendant, Plaintiff sustained and incurred damages to his real and personall property, along with the imposition of additional expenses, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Defendant in the amount of $108,615.28, plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. ~OUNT II - BREACH OF CONTR 10. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 11. On or about March 2, 2001, Defendant entered into a contract with Plaintiff for the lease of the home set forth in paragraph I for a period of one year. (See Exhibit A). 12. The paragraph entitled "DAMAGE" within the lease states, "Damage to the Property caused by Resident, Resident's family or Resident's guests, will be repaired and costs billed to the resident and payable on demand." 13. Defendant breached the lease agreement by causing the aforementioned damage to the home and then failing to pay for said damage. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant in the amount of $108,615.28, plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST DATED: 8/7/03 BY: Attomey for Plaintiffs SPECIFICS for Ihe period of time;, ali ii thdleeted belmvT. RENT PAYMENT CHARQE RENEWAL RENT INCREASE MOVE. OUT EARLY TERMINATION DWELLING AC, Dfi~:~ TYPE LEABE DATEE MOVE,IN DATE FL4RRIBBURG UTILITY LANDLORD Clkle month. RESIDENT of Ih. month. Rent not received within ~0 days pf arq'notice wi result in Reeidef~ bein ' . Date :. Resident Dr~te VERIFICATION RICHARD J. BOYD, JR., ESQUIRE hereby states that he is the attorney for the Plaintiffs and that the facts contained in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. He understands that the statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904 concerning falsification to authorities BY: NELSON LEVINE de LUCA & HORST RICHARD J. BU¥1J, Jlq.:, ESQUIRE Attorney For Plaintiffs DATED: 8/7/03 CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the attached Plaintiffs' Complaint has been sent via regular mail to the following: James A. Diamond, Esquire Johnston & Diamond Suite 100 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 NELSON LEVINE de LUCA & HORST DATED: 8/7/03 BY: RICHARD J. ~OYD,~JI~, ESQUIRE Attorney for Plaintiff VERIFICATION I, Ronald Duszak, hereby verify that the statements lnade in the foregoing Preliminary Objections are tree and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unswom falsification to authorities. Dated: August 25, 2003 RONALD DUSZAK ~ CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Preliminary Objections of Defendant to Complaint upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (Attorneys for Plaintiffs) Dated: August 25, 2003 A. DIAMOND NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 ATTORNEYS FOR PLAINTIFFS DONALD AND JANET COMERER Vo RONALD DUSCAK Plaintiff Defendant CUMBERLAND COUNTY COURT COMMON PLEAS NO. 03-2142 JURY TRIAL PRAECIPE TO MARK DISCONTINUED AND ENDEI~ TO THE PROTHONOTARY: Kindly mark the above-captioned matter as discontinued and ended on the dockets. NELSON LEVINE DELUCA & HORST, LLC Dated:_November 18, 200't ,RICHARD J BOYD~'JR ~-~_C. ,/ , ., ESQUIRE ATTORNEYS FOR PLAiNTIFFS OF NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 DONALD AND JANET COMERER Vo RONALDDUSCAK Plaintiff De~ndant ATTORNEYS FOR PLAINTIFFS CUMBERLAND COUNTY COURT COMMON PLEAS NO. 03-2142 JURY TRIAL CERTIFICATE OF SERVICE OF I, Richard J Boyd, Jr., Esquire, hereby certify that a true and correct copy of the Praecipe to Discontinue and End was served on November 18, 2003, upon counsel listed below by United States Mail, postage prepaid. James A. Diamond, Esquire Johnston & Diamond Suite 100 150 Corporate Center Driw; P.O. Box 98 Camp Hill, PA 17001-0098 Dated: November 18, 2003 NELSON LEVINE DELUCA & HORST, LLC RICHARD J BOYD, JR77.,kSQIf-IRL~ '/ ATTORNEYS FOR PLAINTiFFS Doc #: 49382.doc