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HomeMy WebLinkAbout01-04123 THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L STUM and NANCY E. STUM, Individually, Plaintiffs v. GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ~ ~ - y~e23 CIVIL ACTION - LAW e~u~~~~ NOTICE TO DEFENDANTS NAMED HEREIN: 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla torte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA D SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Dated: \~ ~ ~I FRIEDMAN & KING, P.C. Richhrd S. Friedman, Esquire 600 North Second St. Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ® ~ x/.2.3 Cc~ ~T.,w-~ CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Edward L. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241. Plaintiff, Edward L. Stum, is the Administrator of the Estate of Eric E. Stum, deceased ("Decedent") having been appointed by the Register of Wills of Cumberland County, Pennsylvania on July 29, 1999, and is also the surviving father of the Decedent. 2. Plaintiff, Nancy E. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241, and is the wife of Plaintiff, Edward L. Stum, and is also the surviving mother of Decedent. 3. Defendants, Gordon and Donna Ocker, are adult individuals, husband and wife, and reside at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 4. Defendant, Benjamin G. Ocker, is an adult individual, who resides at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 5. No person who is not a Plaintiff in this action is entitled by law to recover damages based upon the death of the Decedent. 6. On or about July 10,` 1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy. 7. On or about July 10, 1999, John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence. 8. At that time and place, a party was being held at the residence of Defendants, Gordon and Donna Ocker, by their then minor son, Defendant, Benjamin G. Ocker. 9. At that time and place, Defendants, Gordon and Donna Ocker, knew or should have known based on prior experiences that their minor son intended to have a party with alcoholic beverages at their home. 10. At that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party. 11. At approximately 9:35 p.m., after consuming alcoholic beverages, Evan Spencer left the party in Evan Spencer's 1992 Dodge Stealth motor vehicle, along with Eric Stum, his passenger. 12. As Evan Spencer traveled on SR 11, Penn Township, Cumberland County, at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on collision. 13. Evan Spencer's inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle. 14. As a result of the accident, the Decedent, Eric E. Stum, suffered injuries which resulted in his death. COUNT I SURVIVAL ACTION and Donna Ocker 15. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 16. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 17. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendants, Gordon Ocker and Donna Ocker, which consisted of the following: A. Permitting their minor son, Benjamin G. Ocker, to have a party at their home. B. Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. C. Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages, although he was not of legal drinking age. D. Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. E. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. F. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. G. Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 18. As a direct and proximate result of the aforesaid behavior of Defendants, Gordon Ocker and Donna Ocker, the Defendants are liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. Plaintiff demands judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II WRONGFUL DEATH ACTION Plaintiffs, Edward L. Stum and Nancv E. Stum, individually v. Defendants. Gordon Ocker and Donna Ocker 19. Paragraphs 1 through 18 of the Complaint are incorporated herein by reference as though more fully set forth at length. 20. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 21. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 22. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendants. 23. As a direct and proximate result of the aforesaid behavior of the Defendants, the Plaintiffs suffered and the Defendants are liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III PUNITIVE DAMAGES Plaintiffs. Edward L. Stum. Administrator of the Estate of Eric E. Stum and Edward L. Stum and Nancy E. Stum. Individually v. Defendants, Gordon Ocker and Donna Ocker 24. Paragraphs 1 through 23 of the Complaint are incorporated herein by reference as though more fully set forth at length. 25. Defendants', Gordon and Donna Ocker, conduct of permitting their then minor son to have a party at their residence, including alcoholic beverages, while they were not at home constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendants knew or should have known that alcohol would be consumed by minors, which created a high risk to other persons. 26. Said conduct of Defendants constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. WHEREFORE, Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT IV SURVIVAL ACTION 27. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 28. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 29. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendant, Benjamin G. Ocker, which consisted of the following: A. Hosting a party with his parents' permission. B. Permitting alcoholic beverages to be served and consumed, although they knew or should have known that it would be served to minors, including Evan Spencer. C. Facilitating the consumption of alcoholic beverages by minors. D. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. E. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 30. As a direct and proximate result of the aforesaid behavior of Defendant, Benjamin G. Ocker, the Defendant is liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. Plaintiff demands judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT V WRONGFUL DEATH ACTION 31. Paragraphs 1 through 14 and 27 through 30 of the Complaint are incorporated herein by reference as though more fully set fortri at length. 32. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 33. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 34. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendant. 35. As a direct and proximate result of the aforesaid behavior of the Defendant, the Plaintiffs suffered and the Defendant is liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COIINT VI PIINITIVE DAMAGES 36. Paragraphs 1 through 14 and 27 through 35 of the Complaint are incorporated herein by reference as though more fully set forth at length. 37. Defendant's, Benjamin G. Ocker, conduct of hosting a party without alcoholic beverages constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendant knew or should have known that alcohol would be consumed by minors, creating a high risk to other persons. 38. Said conduct of Defendant constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Date• Respectfully submitted, FRIEDMAN & KING, P.C. Ric and S. Friedman, 60 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 k/p:pleadings\stum.cmp I, Edward L. Stum, Administrator of the Estate of Eric E. Stum, and we, Edward L. Stum and Nancy E. Stum, individually, hereby acknowledge that we are the Plaintiffs in the foregoing action; that we have read the foregoing Complaint; and the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ~~ /z~.a.otar~,~e;7 Edward L. Stum, Administrator of the Estate of Eric E. Stum dE wa um ~~2ah.~tic. ~~ Nancy Stum Dated: ~~~~~ Ai SHERIFF'S RETURN - REGULAR CASE NO: 2001-04123 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STUM ERIC E ESTATE OF ET AL VS OCKER GORDON ET AL BRYAN WARD Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon OCKER the DEFENDANT at 1845:00 HOURS, on the 10th day of July 2001 at 31 STONELEDGE ROAD NEWVILLE, PA 17241 by handing to BENJAMIN OCKER, SON 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this .?3~( day of ~U-Q. o2tr A . D . Prothonotary So Answers: ~~~ R. Thomas Kline 07/11/2001 FRIEDMAN & KING By: Depu Sheri f SHERIFF'S RETURN - REGULAR Y= CASE NO: 2001-04123 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STUM ERIC E ESTATE OF ET AL VS OCKER GORDON ET AL BRYAN WARD Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon OCKER BENJAMIN E the DEFENDANT at 1845:00 HOURS, on the 10th day of July 2001 at 31 STONELEDGE RD NEWVILLE, PA 17241 BENJAMIN OCKER by handing to 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this ~3,,,,~ day of A.D. 2J..~ /Yl.~.~ ~7°~ P o honotary So Answers: ~~~~ R. Thomas Kline 07/11/2001 FRIEDMAN & KING By: Deputy eriff SHERIFF'S RETURN - REGULAR .. ,. CASE N0: 2001-04123 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STUM ERIC E ESTATE OF ET AL VS OCKER CORDON ET AL BRYAN WARD Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTI was served upon OCKER CORDON the DEFENDANT at 1845:00 HOURS, on the 10th day of July 2001 at 31 STONELEDGE ROAD NEWVILLE, PA 17241 by handing to BENJAMIN OCKER, SON 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 18.00 Service 9.10 Affidavit .00 Surcharge 10.00 .00 37.10 Sworn and Subscribed to before me this a3,ur day of ~'~T Pr t onotary ` So Answers: ~~ R. Thomas Kline 07/11/2001 FRIEDMAN & KING By. ~ C Deputy S rif THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants CIVIL ACTION -LAW DOCKET NO: 01-4123 Civil Term JURY TRIAL DEMANDED NOTICE TO PLEAD TO: THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY c/o Richard S. Friedman, Esquire 800 North Second Street P.O. Box 984 Harrisburg, Pa 17108 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF DEFENDANT. BENJAMIN OCKER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: July 24; 2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. MARSHALL & HADDICK, P.C. ~. ~~ Charles E. Haddick, Jr., Esquire Attorney I.D. No: 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No: 66465 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Gordon and Donna Ocker and Benjamin Ocker, ONLY THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this !day of , 2001 it is ORDERED that the Preliminary Objections filed by Defendant Benjamin G. Ocker are SUSTAINED and that Plaintiffs' Complaint is with prejudice. BY THE COURT: J. 5 THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS 8Y EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001 it is ORDERED that the Preliminary Objections filed by Defendant Benjamin G. Ocker are SUSTAINED and that Count VI of Plaintiffs' Complaint is DISMISSED with prejudice. BY THE COURT: 6 e THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants CIVIL ACTION -LAW DOCKET NO: 01-4123 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, BENJAMIN G. OCKER, TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Benjamin G. Ocker, by and through his counsel, Marshall & Haddick, P.C., and files the instant Preliminary Objections to Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028(a)(4). 1. Plaintiffs allege that their decedent, Eric E. Stum, suffered injuries in an automobile accident that occurred on or about July 10, 1999 which resulted in his death. See Plaintiffs' Complaint at paragraph 14. (A true copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"). 2. Plaintiffs allege that Benjamin Ocker held a party at his parents' residence, at which Benjamin and other minors consumed alcoholic beverages. See paragraphs 8, 10 of Plaintiffs' Complaint. Preliminary Objection pursuant to Pa. R.C.P. 1028 (a) (4) 3. Defendant incorporates by reference paragraphs 1 - 2 above as if fully e IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. set forth herein. 4. In Paragraph 25 of their Complaint, Plaintiffs allege that their decedent was fatally injured as a result of the willful, wanton, reckless and negligent behavior on the part of Benjamin G. Ocker, which allegedly consisted of the following: (a) Hosting a party with his parents' permission. (b) Permitting alcoholic beverages to be served and consumed, although they [sic] knew or should have known that it would be served to minors, including Evan Spencer. (c) Facilitating the consumption of alcoholic beverages by minors. (d) Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. (e) Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 5. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 6. Plaintiffs have failed to state a claim against Benjamin G. Ocker because Pennsylvania law does not permit a minor to be held civilly liable for the act of furnishing alcohol to other minors. Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994). WHEREFORE Benjamin G. Ocker respectfully requests that this Honorable Court grant his Preliminary Objections and that Plaintiffs' Complaint be dismissed with prejudice. Alternative Preliminary Objection pursuant to Pa. R.C.P. 1028 (a) (4) 7. Paragraphs 1 - 6 are incorporated herein by reference. 2 8. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 9. Plaintiffs' Complaint contains a claim against Defendant Benjamin G. Ocker for punitive damages. See Count VI of Plaintiffs' Complaint. 10. First, Defendant Benjamin G. Ocker seeks the dismissal of Count VI of Plaintiffs' Complaint for failing to state a claim upon which relief can be granted. There is no independent cause of action for punitive damages recognized by the law of this Commonwealth. 11. Secondly, with respect to any claim for punitive damages asserted against Defendant Benjamin G. Ocker by way of the remainder of the Complaint, this Court should strike same for legal insufficiency. 12. Punitive damages are not available in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983). 13. Punitive damages are not recoverable in a survival action unless the decedent could have recovered them had he survived. Id. at 102, 461 A.2d at 816. 14. Punitive damages are warranted only when a defendant's conduct is outrageous, because of an evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts §908(2). 15. Allegations of negligence or gross negligence can not support a claim for punitive damages. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 3 16. Plaintiffs' Complaint does not contain allegations sufficient to support a finding that Benjamin G. Ocker acted intentionally, maliciously, or in conscious disregard of a known and realized risk to their decedent. 17. The allegations in Plaintiffs' Complaint are legally insufficient to support a finding of the state of mind required to award punitive damages. 18. Plaintiffs have failed to state a claim for punitive damages against Defendant Benjamin G. Ocker. WHEREFORE, Defendant Benjamin G. Ocker respectfu{{y requests that this Honorable Court grant his Preliminary Objections and strike all claims for punitive damages asserted by the Plaintiffs. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: d Z~ ~ I s . Had i k, Jr., Esquire Attorney I.D. No. 5666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36~h Street Camp Hill, PA 17011 (717) 731-4800 Counsel for Defendant Benjamin G. Ocker 4 CERTIFICATE OF SERVICE AND NOW, this2 day of July, 2001, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 s .Haddick, Jr., Esquire 7 THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L, STUM and NANCY E. STUM, Individually, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, CIVIL ACTION - LAW Defendants NOTICE TO DEFENDANTS NAMED HEREIN: 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 Plaintiffs. You may lose money or property or .other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla torte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted time viente (20) dias de plazo al partie de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. ~ ~~ ~ ~~ ~8 ~~~~'ir~ms"r'q ~r`a'8;) ~fea~e'6a:a~da °.?~i !i3=,' X575( L /1nA a. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Dated:~tQ d /~ ~~ FRIEDMAN & KING, P.C. Richhrd S. Friedman, Esquire 600 North Second St. Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . NO. CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Edward L. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241. Plaintiff, Edward L. Stum, is the Administrator of the Estate of Eric E. Stum, deceased ("Decedent") having been appointed by the Register of Wills of Cumberland County, Pennsylvania on July 29, 1999, and is also the surviving father of the Decedent. 2. Plaintiff, Nancy E. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241, and is the wife of Plaintiff, Edward L. Stum, and is also the surviving mother of Decedent. 3. Defendants, Gordon and Donna Ocker, are adult individuals, husband and wife, and reside at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 4. Defendant, Benjamin G. Ocker, is an adult individual, who resides at 31 Stone Ledqe Road, Newville, Cumberland County, Pennsylvania 17241. 5. No person who is not a Plaintiff in this action is entitled by law to recover damages based upon the death of the Decedent. 6. On or about July 10 ," 1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy. 7. On or about July 10, 1999, John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence. 8. At that time and place, a party was being held at the residence of Defendants, Gordon and Donna Ocker, by their then minor son, Defendant, Benjamin G. Ocker. 9. At that time and place, Defendants, Gordon and Donna Ocker, knew or should have known based on prior experiences that their minor son intended to have a party with alcoholic beverages at their home. 10. At that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party. 11. At approximately 9:35 p.m., after consuming alcoholic beverages, Evan Spencer left the party in Evan Spencer's 1992 Dodge Stealth motor vehicle, along with Eric Stum, his passenger. ~:. 12. As Evan Spencer traveled on SR 11, Penn Township, Cumberland County, at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on collision. 13. Evan Spencer's inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle. 14. As a result of the accident, the Decedent, Eric E. Stum, suffered injuries which resulted in his death. COIINT I SIIRVIVAL ACTION and Donna Ocker 15. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 16. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 17. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendants, Gordon Ocker and Donna Ocker, which consisted of the following: A. Permitting their minor son, Benjamin G. Ocker, to have a party at their home. $. Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. C. Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages, although he was not of legal drinking age. O. Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. E. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. F. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. G. Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 18. As a direct and proximate result of the aforesaid behavior of Defendants, Gordon Ocker and Donna Ocker, the Defendants are liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. .,.._.. _... ,__. _. ._. _.................~ ,.... :.. • I ... ~w D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of ,25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II WRONGFIIL DEATH ACTION Plaintiffs, Edward L. Stum and Nancy E. Stum, individually v. Defendants. Gordon Ocker and Donna Ocker 19. Paragraphs 1 through 18 of the Complaint are incorporated herein by reference as though more fully set forth at length. 20. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 21. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 22. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendants. 23. As a direct and proximate result of the aforesaid behavior of the Defendants, the Plaintiffs suffered and the Defendants are liable for the following damages: A. Funeral expenses for the Decedent. .,~~, B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III PUNITIVE DAMAGES Plaintiffs. Edward L. Stum, Administrator of the Estate of Eric E. Stum and Edward L. Stum and Nance E. Stum. Individually v. Defendants, Gordon Ocker and Donna Ocker 24. Paragraphs 1 through 23 of the Complaint are incorporated herein by reference as though more fully set forth at length. 25. Defendants', Gordon and Donna Ocker, conduct of permitting their then minor son to have a party at their residence, including alcoholic beverages, while they were not at home constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendants knew or should have known that alcohol would be consumed by minors, which created a high risk to other persons. 26. Said conduct of Defendants constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. WHEREFORE, Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT IV SURVIVAL ACTION 27. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 28. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 29. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendant, Benjamin G. Ocker, which consisted of the following: A. Hosting a party with his parents' permission. B. Permitting alcoholic beverages to be served and consumed, although they knew or should have known that it Would be served to minors, including Evan Spencer. C. Facilitating the consumption of alcoholic beverages by minors. D. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. E. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 30. As a direct and proximate result of the aforesaid behavior of Defendant, Benjamin G. Ocker, the Defendant is liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT V WRONGFUL DEATH ACTION 31, paragraphs 1 through 14 and 27 through 30 of the Complaint are incorporated herein by reference as though more fully set forth at length. 32. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 33. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 34. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendant. 35. As a direct and proximate result of the aforesaid behavior of the Defendant, the Plaintiffs suffered and the Defendant is liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result'of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. w WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT VI PUNITIVE DAMAGES 36. Paragraphs 1 through 14 and 27 through 35 of the Complaint are incorporated herein by reference as though more fully set forth at length. 37. Defendant's, Benjamin G. Ocker, conduct of hosting a party without alcoholic beverages constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendant knew or should have known that alcohol would be consumed by minors, creating a high risk to other persons. 38. Said conduct of Defendant constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. Benjamin G. Ocker ,. ,~ Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Date: Respectfully submitted, FRIEDMAN & KING, P.C. .., 60 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 k/p:pleadings\stum.cmp ,. ' . ~ VERIFICATION I, Edward L. Stum, Administrator of the Estate of Eric E. Stum, and we, Edward L. Stum and Nancy E. Stum, individually, hereby acknowledge that we are the Plaintiffs in the foregoing action; that we have read the foregoing Complaint; and the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Edward L. Stum, Administrator of the Estate of Eric E. Stum dwE ate' rd L. S um ~ Nancy Stum Dated: ~C/~"'~~r~~~ THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY CIVIL ACTION -LAW Plaintiffs DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001 it is ORDERED that the Preliminary Objections filed by Defendant Benjamin G. Ocker are SUSTAINED and that Plaintiffs' Complaint is DISMISSED with prejudice. BY THE COURT: J. THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2001 it is ORDERED that the Preliminary Objections filed by Defendant Benjamin G. Ocker are SUSTAINED and that Count VI of Plaintiffs' Complaint is DISMISSED with prejudice. BY THE COURT: J. '~z `. ,> i. 6 i i ~~ o- N L wUN pp O c a -p o ~ ~ ~ o '-- '~Yh V a ~ ~ L ' 00 O` t t/'1 C O ~ d7 O X ~ 6 ~ ~Z O O ~ ~m..o C ~ O U L i Q ' C `D O ~ ~~ iia2 U a U ~ ~ F ~.~ m °~mz ~~z F a ~ a C/1°m~ N U THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants CIVIL ACTION -LAW DOCKET NO: 01-4123 Civil Term JURY TRIAL DEMANDED NOTICE TO PLEAD TO: THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY c/o Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF DEFENDANTS, GORDON OCKER AND DONNA OCKER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Date: July 24, 2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. Respectfully submitted, MARSHALL & HADDICK, P.C. Attorney for Gordon and Donna Ocker and Benjamin Ocker, ONLY 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 ~~ Charles E. Haddick, Jr., uire Attorney I.D. No: 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No: 66485 1 THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. . STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections filed by Defendants Gordon and Donna Ocker are SUSTAINED, and paragraph 17(G) of Plaintiffs' Complaint against them is DISMISSED WITH PREJUDICE. BY THE COURT: 7 r THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADM{NISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections filed by Defendants Gordon and Donna Ocker are SUSTAINED, and all claims for punitive damages against the Defendants Gordon and Donna Ocker are DISMISSED WITH PREJUDICE. BY THE COURT: 8 THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS, GORDON AND DONNA OCKER, HUSBAND AND WIFE, TO PLAINTIFFS' COMPLAINT AND NOW come the Defendants, Gordon Ocker and Donna Ocker, husband and wife, by and through their counsel, Marshall & Haddick, P.C., and preliminarily object to Plaintiffs' Complaint as follows: 1. Plaintiffs allege that their decedent, Eric E. Stum, suffered injuries in an automobile accident that occurred on or about July 10, 1999 which resulted in his death. See Plaintiffs' Complaint at paragraph 14. (A true copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"). 2. Plaintiffs allege that the minor son of Defendants Gordon and Donna Ocker, Defendant Benjamin G. Ocker, hosted a party at the Ocker home on July 10, 1999. See paragraph 8 of Plaintiffs' Complaint. 3. Plaintiffs further allege that their decedent was a passenger in a vehicle driven by Evan Spencer at the time of the accident in question and that Evan Spencer was unable to operate his vehicle in a safe manner because he was "extremely intoxicated." See paragraphs 11 - 13 of Plaintiffs' Complaint. 4. Paragraph 17 of Plaintiffs' Complaint alleges that Defendants Gordon and Donna Ocker acted willfully, wantonly, recklessly and negligently in the following respects: (a) Permitting their minor son, Benjamin G. Ocker to have a party at their home. (b) Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. (c) Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages although he was not of legal drinking age. (d) Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. (e) Intending to furnish, agreeing to furnish or promoting the furnishing of alcohol to various minors, including Evan Spencer. (f) Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 2 (g) Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 5. Plaintiffs allege that as a result of the conduct alleged in paragraph 17 of their Complaint, the Defendants Gordon and Donna Ocker are liable to them in this wrongful death and survival action. See Plaintiffs' Complaint at Counts I and II. 6. Plaintiffs also make a claim for punitive damages against Defendants Gordon and Donna Ocker. See Plaintiffs' Complaint at Count III. Objection Pursuant to Pa. R.C.P. 1028(a)(4) 7. Paragraphs 1 - 6 are incorporated herein by reference. 8. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 9. The son of Defendants Gordon and Donna Ocker, Defendant Benjamin G. Ocker, was born June 28, 1979. See transcript of deposition of Benjamin G. Ocker taken in connection with six cases currently before this Honorable Court arising from the same July 10, 1999 accident, at page 10, a true and correct copy of which is attached hereto as Exhibit B. 10. He was twenty (20) years old on the date of the incident referred to in Plaintiffs' Complaint. Id. 11. Plaintiffs claim that the Ockers failed to provide adequate parental supervision of Ben Ocker. See Complaint at paragraph 17(G). 3 12. To the extent that Plaintiffs assert liability against the Ockers as described above, they have failed to set forth a cause of action against Defendants Gordon and Donna Ocker upon which relief may be granted. Maxwell v. Keas, 433 Pa. Super. 70, 639 A.2d 1215 (1994). 13. Liability may not be imposed on parents for the actions of children over the age of 18 still living at home. Id. 14. As such, the Ockers may not be held liable under the theory that they failed to properly supervise their son unless he were under the age of 18 at the time in question. 15. Plaintiffs have therefore failed to state a claim for negligent parental supervision against Defendants Gordon and Donna Ocker upon which relief may be granted. WHEREFORE, Defendants, Gordon Ocker and Donna Ocker respectfully request that this Honorable Court grant their Preliminary Objections and dismiss Plaintiffs' claims for negligent parental supervision from the Plaintiffs' Complaint with prejudice. Objection Pursuant to Pa. R.C.P. 1028 (a)(4) 16. Paragraphs 1 - 15 are incorporated herein by reference. 17. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 4 18. Plaintiffs' Complaint contains a claim against Defendants Gordon and Donna Ocker for punitive damages. See Count III of Plaintiffs' Complaint. 19. First, Defendants Gordon and Donna Ocker seek the dismissal of Count III of Plaintiffs' Complaint for failing to state a claim upon which relief can be granted. There is no independent cause of action for punitive damages recognized by the law of this Commonwealth. 20. Secondly, with respect to any claim for punitive damages asserted against Defendants Gordon and Donna Ocker by way of the remainder of the Complaint, this Court should strike same for legal insufficiency. 21. Punitive damages are not available in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983). 22. Punitive damages are not recoverable in a survival action unless the decedent could have recovered them had he survived. Id. at 102, 461 A.2d at 816. 23. Punitive damages are warranted only when a defendant's conduct is outrageous, because of an evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts §908(2). 24. Allegations of negligence or gross negligence can not support a claim for punitive damages. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 5 25. Plaintiffs' Complaint does not contain allegations sufficient to support a finding that Gordon and Donna Ocker acted intentionally, maliciously, or in conscious disregard of a known and realized risk to their decedent. 26. The allegations in Plaintiffs' Complaint are legally insufficient to support a finding of the state of mind required to award punitive damages. 27. Plaintiffs have failed to state a claim for punitive damages against Defendants Gordon and Donna Ocker. WHEREFORE, Defendants Gordon and Donna Ocker respectfully request that this Court grant their Preliminary Objections and strike all claims for punitive damages asserted by the Plaintiffs. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: ? ~ ~ O I Charles E. Ha ick, Jr., Esquire Attorney I.D. No. 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36~h Street Camp Hill, PA 17011 (717)731-4800 Counsel for Defendants Gordon and Donna Ocker 6 THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS by EDWARD L. STUM, CUMBERLAND COUNTY, PENNSYLVANIA Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. NO. ~ I - 'yl~iJ ~W ~ ~. / / GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, CIVIL ACTION - LAW Defendants NOTICE TO DEFENDANTS NAMED HEREIN: 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla Corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abbgado y archivar en la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivic que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO 5UFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASI5TENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Dated: \ t ~ ~1 FRIEDMAN & KING, P.C. Richard S. Friedman, Esquire 600 North Second St. Penthouse Suite P. O. Sox 984 Harrisburg, PA 17108 (717) 236-8000 THE ESTATE OF ERIC E. STUM, by EDWARD L. STL1M, Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. CORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . NO. CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Edward L. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241. Plaintiff, Edward L. Stum, is the Administrator of the Estate of Eric E. Stum, deceased ("Decedent") having been appointed by the Register of Wills of Cumberland County, Pennsylvania on July 29, 1999, and is also the surviving father of the Decedent. 2. Plaintiff, Nancy E. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241, and is the wife of Plaintiff, Edward L. Stum, and is also the surviving mother of Decedent. 3. Defendants, Gordon and Donna Ocker, are adult individuals, husband and wife, and reside at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 4. Defendant, Benjamin G. Ocker, is an adult individual, who resides at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 5. No person who is not a Plaintiff in this action is entitled by law to recover damages based upon the death of the Decedent. 6. On or about July 10,"1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy. 7. On or about July 10, 1999, John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence. 8. At that time and place, a party was being held at the residence of Defendants, Gordon and Donna Ocker, by their then minor son, Defendant, Benjamin G. Ocker. 9. At that time and place, Defendants, Gordon and Donna ticker, knew or should have known based on prior experiences that their minor son intended to have a party with alcoholic beverages at their home. 10. At that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party. 11. At approximately 9:35 p.m., after consuming alcoholic beverages, Evan Spencer left the party in Evan Spencer's 1992 Dodge Stealth motor vehicle, along with Eric Stum, his passenger. 12. As Evan Spencer traveled on SR 11, Penn Township, Cumberland County, at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on collision. 13. Evan Spencer's inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle. 14. As a result of the accident, the Decedent, Eric E. Stum, suffered injuries which resulted in his death. COIINT I SIIRVIVAL ACTION and Donna Ocker 15. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 16. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 17. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendants, Gordon Ocker and Donna Ocker, which consisted of the following: A. Permitting their minor son, Benjamin G. Ocker, to have a party at their home. B. Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. C. Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages, although he was not of legal drinking age. D. Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. E. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. F. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. G. Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 18. As a direct and proximate result of the aforesaid behavior of Defendants, Gordon Ocker and Donna Ocker, the Defendants are liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II WRONGFUL DEATH ACTION Plaintiffs, Edward L. Stum and Nanc~E Stum Individually y. Defendants. Gordon Ocker and Donna Ocker 19. Paragraphs 1 through 18 of the Complaint are incorporated herein by reference as though more fully set forth at length. 20. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 21. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 22. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendants. 23. As a direct and proximate result of the aforesaid behavior of the Defendants, the Plaintiffs suffered and the Defendants are liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III PUNITIVE DAMAGES Plaintiffs. Edward L. Stum, Administrator Gordon Ocker and Donna Ocker 24. Paragraphs 1 through 23 of the Complaint are incorporated herein by reference as though more fully set forth at length. 25. Defendants', Gordon and Donna Ocker, conduct of permitting their then minor son to have a party at their residence, including alcoholic beverages, while they were not at home constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendants knew or should have known that alcohol would be consumed by minors, which created a high risk to other persons. C. Facilitating the consumption of alcoholic beverages by minors. D. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. E. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 30. As a direct and proximate result of the aforesaid behavior of Defendant, Benjamin G. ticker, the Defendant is liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. Plaintiff demands judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. .:_ ____ ._...... _..:.. LI ~ ~ ~~ _._ couNT v WRONGFUL DEATH ACTION Plaintiffs. Edward L Stum and Nancv E Stum Individually v. Defendant. Beniamin G. Ocker 31. Paragraphs 1 through 14 and 27 through 30 of the Complaint are incorporated herein by reference as though more fully set forth at length. 32. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 33. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 34. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendant. 35. As a direct and proximate result of the aforesaid behavior of the Defendant, the Plaintiffs suffered and the Defendant is liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result 'of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D, Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, Date• FRIEDMAN & KING, P.C. Ric and S. Friedman, Esqu 60 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 k/p:pleadings\stum.cmp ~ , VERIFICATION I, Edward L. Stum, Administrator of the Estate of Eric E. Stum, and we, Edward L. Stum and Nancy E. Stum, individually, hereby acknowledge that we are the Plaintiffs in the foregoing action; that we have read the foregoing Complaint; and the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Sectiott 4904, relating to unsworn falsification to authorities. ~~~ Edward L. Stum, Administrator rr~ of the Estate of Eric E. Stum /.lLu~/ dward L. S um (~ C ~~~ Nancy Stum Dated: ~/'"`-'~/~v~~ 1 ..gal ., Multi-Page"" BENJAMIN OCKER Page 10 1 Q What is your date of birth? 2 A 6-28-79. 3 Q So then on July 10 of 1999, you were 20 yeazs 4 old? 5 A Yes. 6 Q Plus about a week or two? 7 A Yeah. 8 Q What is your social security number? 9 A 179-68-0930. 10 Q Were you employed on July l0 of 1999? 11 A Yes. i2 Q Where were you employed? lZ A Exel Logistics. 14 Q Is that where you aze currently employed? 15 A Yes. 16 Q In July of 1999, at that point in time, how long 17 had you been employed with Exel Logistics? 18 A Since October of 1997. 19 Q You had graduated from high school in 1997, is 20 that correct? 21 A Yes. 22 Q Was that your first main job thou after 23 graduation from high school? 24 A I worked at a graveyard for about three months. 25 Q Right after high school? Pagel 1 1 A Yes. 2 Q While you were in high school, were you employed 3 at all? 4 A Yes. 5 Q Where? 6 A Carelli's Deli Subs and Fizza. 7 Q Where is that located? 8 A On Walnutbottom Road in Cazlisle. 9 Q How long did you work for them? 10 A Since I was fifteen. 11 Q Now, when you were hired at Exel Logistics in 12 October of 1997, what job were you hired for? 13 A Forklift operator. 14 Q Is that yow current position as well? 15 A Yes. 16 Q What was yow rate of pay in October of 1997? 17 A 8.60. And then after 90 days, it went up to 18 9.10. 19 Q What is it currently? 20 A It's eleven dollars. 21 Q Have you ever left employment with Exel 22 LOg15t1CS? 23 A No. 24 Q And is that a forty how a week job? 25 A Yes. rvvvntvitsrac tea, ~uuu Page 12 1 Q Were you provided any benefits through that 2 employment? 3 A Yes. 4 Q What benefits? 5 A Oh, medical, dental, vision, I think that's it. 6 Q Any type of pension? 7 A I am not real swe. 8 Q Were you immediately eligible for those benefits, 9 medical, dental or vision or was there -- 10 A After 90 days, after -- it was like the first 90 11 days is part time, then I was hired on full time. 12 Q So then those benefits were in effect on July 10 13 of 1999? 14 A Yes. 15 Q As of July 10 of 1999, were you carried on any 16 type of inswance from yow parents? They were 17 policyholders or yow mother and father had through their 18 employment? 19 A I think so, yes. I have no clue. 20 Q But in any event, as faz as you knew though on 21 July 10 of 1999, you had medical, insurance through yow 22 employment, dental inswance and vision inswance through 23 yow employment? 24 A Yes. 25 Q So that if you had an accident and had to go to Page 13 1 the emergency room yowself in July of 1999, you would have 2 presented yow own insurance cazd from yow employment with 3 Exel at the hospital? 4 A Yes. 5 Q On July 10 of 1999, did you have any bank 6 accoun ts? 7 A Yes. 8 Q How many? 9 A Checking and savings. 10 Q With what bank? 11 A It's M & T Bank now. 12 Q Are you the sole owner of those accounts? 13 A Yes. 14 Q No one else is named as a joint accountholder? 15 A No. 16 Q And how long have you had those accounts? 17 A I am not sure how long savings. The c}tecking I 18 got right after I got out of high school. 19 Q So summer of 1997? 20 A Yes. 21 Q Do you have any credit cards? 22 A No. 23 Q None at all, not including gas station or -- 24 A No, none at all. 25 Q Are you aware of what yow account balances are HUGHES, ALBRIGHT, FOLTZ & NATALE Page 10 -Page 13 717-540-0220\717-393-5101 VERIFICATION PURSUANT TO Pa. R.C.P. NO. 1024(c) I, Charles E. Haddick, Jr., Esquire, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and/or because the parry for whom he makes this affidavit is outside the jurisdiction of the Court and verification of none of them can be obtained within the time allowed for the filing of the pleading; and that he has sufficient knowledge or information and belief, based upon her investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Dated: ~ 2 ~ ~ 1 Charles E. Hadd ck, jr., Esquire ~~~JC~~ERTIFICATE OF SERVICE AND NOW, this day of July, 2001, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 Charles E. ick, Jr., Esquire 9 _ _ ~~ <, ~:' 7 '<. f_, W n pj for ~ m ~ ~ x H x w ~ ~xk~ ~~x ~~~ ~d H i,y o n .. '~ `b n 'O T ~ T ~7 ~ OTo~ T N T ~ ~ ~ ~ O O 7 cn ~ ~ ~ S ~ T D ~ m o m. a o 'm 3 V_ ~ ~ O fl- ~ 7 O ~ ~ n rn ~ N ~ ~ ~ C ' ~ fD v. ~~_. ~ ~ yi "<1 ~~ ' ~~,a ~.. ~~`~ ~~~ ~~a ~- --~ ~~ ., ;; THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections filed by Defendants Gordon and Donna Ocker are SUSTAINED, and paragraph 17(G) of Plaintiffs' Complaint against them is DISMISSED WITH PREJUDICE. BY THE COURT: J. 7 THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON QCKER AND DONNA QCKER, HUSBAND AND WIFE, and BENJAMIN G. QCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this ,day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections filed by Defendants Gordon and Donna Ocker are SUSTAINED, and all claims for punitive damages against the Defendants Gordon and Donna Ocker are DISMISSED WITH PREJUDICE. BY THE COURT: J. 8 _ t ..... .. .. .. y'. 1 a 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) THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY (Plaintiff) vs. GORDON OCKER AND DONNA OCKER, Husband and Wife, and BENJAMIN G. OCKER (Defendants) No. 01-4123 Civil Term - 1. State matter to be argued (i.e. plaintifFs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendants Gordon and Donna Ocker, husband and wife, to Plaintiffs' Complaint, and 2. Identify counsel who will argue case: a. for Plaintiff: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 b. for Defendants: Charles E. Haddick, Jr., Esquire/ Lori Adamcik Kariss, Esquire 20 South 36th Street Camp Hill, PA 17011 ~... .., 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 29, 2001 Dated: ~,Z~~~l Charles E. Hadd' k, Jr. Esquire (Attorney for De endants) .,.. , .a~ ~ , 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) THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR AND EDWARD L. STUM AND• NANCEY E. STUM, INDIVIDUALLY (Plaintiff) vs. GORDON OCKER AND DONNA OCKER, Husband and Wife, and BENJAMIN G. OCKER (Defendants) No. 01-4123 Civil Term - c7 -- t_ _ ' == , is 1. State matter to be argued (i.e. plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant Benjamin G. Ocker, to Plaintiffs' Complaint 2. Identify counsel who will argue case: a. for Plaintiff: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 b. for Defendants: Charles E Haddick, Jr., Esquire/ Lori Adamcik Kariss, Esquire 20 South 36th Street Camp Hill, PA 17011 ., 3. I will notify all parties in writing within two days that this case has been listed for argument. Dated: 4. Argument Court Date: August 29, 2001 Charles E. 'ck, Jr. Esquire (Attorney for Defendants) ;;. THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 Civil Term v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE To the Prothonotary: Kindly enter our appearance on behalf of the Defendants, Gordon Ocker and Donna Ocker, husband and wife and Benjamin G. Ocker in the above-referenced matter. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: July 24, 2001 Charles E. a dick, Jr., Esquire Attorney I.D. o: 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No: 66465 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Gordon and Donna Ocker and Benjamin Ocker ,~.. CERTIFICATE OF SERVICE AND NOW, this ~(~ ay of July, 2001, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing ENTRY OF APPEARANCE upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 l Charles .Haddick, Jr., Esquire .~.. ._.. L. ,:.,.. ~. ,... I I .. I 1 THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. C{VIL ACTION -LAW DOCKET NO: 01-4123 Civil Term v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED PRAECIPE TO REMOVE CASE FROM ARGUMENT LIST TO THE PROTHONOTARY: Kindly remove the above-captioned case from the August 29, 2001 argument list. All counsel of record concur with this removal. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: August 2, 2001 ~/~C~-~ ~-t'._p~Q~~~~'~(~ ~CiIIA~., Charles E. Haddick, Jr., Esquire Attorney I.D. No: 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No: 66465 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Gordon and Donna Ocker and Benjamin Ocker, ONLY CERTIFICATE OF SERVICE v AND NOW, this ~~day of August, 2001, I, Lori Adamcik Kariss, Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 Counsel for Plaintiff C3'ZA (~C~~~C,rYGf~G~C' Ct~/~cb~ Lori Adamcik Kariss, Esquire ~d ~ ~~~'"~~:~e&-.a~ti Wa¢:ur+u~t~~-"~wa.~,._ m, t~sea~w_sa*m:.~ "- 4^°~'.~,..-s' ~.. ..~.,n.~ucWe- eif C~ ~ t" ~ Z' C47 IT! Fl-I ry ~- _r ~:" fi) _ '~' z ~, U, 1 cal ? `~i ~~. ~ `~I ~ _ L7 ~C t,.7 ': ~~ _.i,n =.j --1 ~S `1: _C ~ -< ~. ~MY THE ESTATE OF ER{C E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 Civil Term v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants EVAN SPENCER, ROBERT SPENCER, and KIMBERLY A. RUDY and Marlin Rudy Additional Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice, for any money claimed in the Complaint or for any other claim for 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 Bar Association 2 Liberty Avenue Carlisle, PA 17013 717/249-3166 800/990-9108 THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs v. GORDON OCKER AND DONNA OCKER, HUSBAND AND' W{FE, and BENJAMIN G. OCKER, Defendants EVAN SPENCER, ROBERT SPENCER, and KIMBERLY A. RUDY and MARLIN RUDY Additional Defendants CIVIL ACTION -LAW DOCKET NO: 01-4123 Civil Term JURY TRIAL DEMANDED JOINDER COMPLAINT OF DEFENDANTS, GORDON OCKER AND DONNA OCKER, husband and wife, AND BENJAMIN G. OCKER, AGAINST ADDITIONAL DEFENDANTS, MARLIN L. RUDY, KIMBERLY A. RUDY, EVAN SPENCER AND ROBERT SPENCER AND NOW, come Defendants and Third-Party Plaintiffs, Gordon Ocker, Donna Ocker and Benjamin G. Ocker, by and through their attorneys, Marshall & Haddick, P.C., and file the within Joinder Complaint against the above-named Additional Defendants, and in support thereof aver as follows: Plaintiffs, The Estate of Eric E. Stum by Edward L. Stum, Administrator, and Edward L. Stum and Nancy E. Stum, Individually [hereinafter Plaintiffs], have filed a Complaint that names Gordon Ocker and Donna Ocker, husband and wife, and 1 R. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. Benjamin G. Ocker [hereinafter Defendants Ocker], as Defendants. A true and correct _ . :.: .. r ~~ i copy of Plaintiffs' Complaint is attached hereto as Exhibit "A" and incorporated herein by reference. 2. Defendants and Third-Party Plaintiffs, Gordon Ocker and Donna Ocker, husband and wife, filed Preliminary Objections to Plaintiffs' Complaint and a Brief in support thereof with this Honorable Court. A true and correct copy of the Preliminary Objections of Gordon and Donna Ocker and Brief in Support thereof are attached collectively hereto as Exhibit "B". 3. Defendant and Third-Party Plaintiff, Benjamin G. Ocker, filed Preliminary Objections to Plaintiffs' Complaint and a Brief in support thereof with this Honorable Court. A true and correct copy of the Preliminary Objections of Benjamin G. Ocker and Brief in Support thereof are attached collectively hereto as Exhibit "C". 4. Marlin Rudy resides at 1667 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania. 5. Kimberly A. Rudy resides at 1667 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania. 6. Evan Spencer resides at 40 Stone Ledge Road, Newville, Cumberland County, Pennsylvania. 7. Robert Spencer resides at 40 Stone Ledge Road, Newville, Cumberland County Pennsylvania. 8. In their Complaint, Plaintiffs allege that "on or about July 10, 1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy," and that "on or about July 10, 1999, 2 John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence." See Plaintiffs' Complaint (Exhibit A hereto) at paragraphs 6 and 7. 9. Plaintiffs further that "at that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party." Id. at paragraph 10. 10. Plaintiffs' allege that on July 10, 1999, their decedent, Eric E. Stum, was a passenger in a car driven by Additional Defendant Evan Spencer. Id. at paragraph 11. 11. Paragraph 12 of Plaintiffs' Complaint alleges that "[a]s Evan Spencer traveled on SR11, Penn Township, Cumberland County at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on col{ision." Id. at paragraph 12. 12. Paragraph 13 of Plaintiffs' Complaint alleges that "Evan Spencer's inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle." Id, at paragraph 13. 13. Plaintiffs further allege that as a result of the above-referenced accident, their decedent suffered fatal injuries. Id. at paragraph 14. 14. Defendants Ocker deny all allegations of liability to the Plaintiffs and allege that any injuries sustained by the Plaintiffs were caused by the negligence of Additional Defendants Marlin Rudy, Kimberly Rudy, Evan Spencer and/or Robert Spencer. COUNTI Gordon Ocker, Donna Ocker and Benjamin Ocker v. Marlin L. Rudy 15. Paragraphs 1 through 14 are incorporated herein by reference. 3 16. Defendants Ocker incorporate by reference paragraphs 6 and 7 of Plaintiffs' Complaint in the above-captioned matter as if fully set forth herein. 17. In the event that Plaintiffs recover any judgment against Defendants Gordon Ocker, Donna Oeker and/or Benjamin G. Ocker herein as a result of the injuries alleged to have been sustained in the accident referred to in Plaintiffs' Complaint, such liability to Plaintiffs being expressly denied, then Defendants Ocker assert that Additional Defendant, Marlin L. Rudy, is solely liable to the Plaintiffs, jointly and severally liable with Defendants Ocker, or liable over to Defendants Ocker on the claims asserted'in Plaintiffs' Complaint. WHEREFORE, Defendants, Gordon Ocker, Donna Ocker and Benjamin G. Ocker, demand judgment against Additional Defendant, Marlin L. Rudy, on the grounds that he is solely liable to the Plaintiffs, jointly and severally liable with Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker, or liable over to Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker for contribution and/or indemnity on the claims made by Plaintiffs. COUNT II Gordon Ocker, Donna Ocker and Benjamin Ocker v. Kimberly A. Rudy 18. Paragraphs 1 through 17 are incorporated herein by reference. 19. Defendants Ocker incorporate by reference paragraphs 6 and 7 of Plaintiffs' Complaint in the above-captioned matter as if fully set forth herein. 20. In the event that Plaintiffs recover any judgment against Defendants Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker herein as a result of the injuries alleged to have been sustained in the accident referred to in Plaintiffs' Complaint, such 4 `. liability to Plaintiffs being expressly denied, then Defendants Ocker assert that Additional Defendant, Kimberly A. Rudy, is solely liable to the Plaintiffs, jointly and severally liable with Defendants Ocker, or liable over to Defendants Ocker on the claims asserted in Plaintiffs' Complaint. WHEREFORE, Defendants, Gordon Ocker, Donna Ocker and Benjamin G. Ocker, demand judgment against Additional Defendant, Kimberly A. Rudy, on the grounds that she is solely liable to the Plaintiffs, jointly and severally liable with Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker, or liable over to Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker for contribution and/or indemnity on the claims made by Plaintiffs. COUNT III Gordon Ocker, Donna Ocker and Benjamin G. Ocker v. Evan Spencer 21. Paragraphs 1 through 20 are incorporated herein by reference. 22. At the time of the collision referred to in Plaintiffs' Complaint, Additional Defendant Evan Spencer was operating his vehicle in a negligent, careless and reckless manner, which negligence, carelessness and recklessness included the following: (a) driving while intoxicated; (b) driving at an unsafe speed; (c) failing to maintain a proper lookout; (d) driving on the wrong side of the road; (e) failure to maintain an assured clear distance ahead; 5 (f) failure to maintain control of his vehicle so as to avoid striking Plaintiff's vehicle; (g) failing to observe the rules of the road of the Commonwealth of Pennsylvania; and (h) operating his vehicle in a careless, reckless and negligent manner and in disregard to the rights of safety of others. 23. In the event that Plaintiffs recover any judgment against Defendants Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker herein as a result of the injuries alleged to have been sustained by the accident referred to in Plaintiffs' Complaint, such liability to Plaintiffs being expressly denied, then Defendants Ocker assert that Additional Defendant, Evan Spencer is solely liable to the Plaintiffs, jointly and severally liable with Defendants Ocker, or liable over to Defendants Ocker on the claims asserted in Plaintiffs' Complaint. WHEREFORE, Defendants, Gordon Ocker, Donna Ocker and Benjamin G. Ocker, demand judgment against Additional Defendant, Evan Spencer, on the grounds that he is solely liable to the Plaintiffs, jointly and severally liable with Gordon Ocker, Donna Ocker andlor Benjamin G. Ocker, or liable over to Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker for contribution and/or indemnity on the claims made by Plaintiffs. COUNT IV Gordon Ocker, Donna Ocker and Benjamin G. Ocker v. Evan Spencer 24. Paragraphs 1 through 23 are incorporated herein by reference. 6 25. At all times relevant hereto, Robert Spencer owned the automobile Evan Spencer was driving at the time of the accident described in Plaintiffs' Complaint. 26. Evan Spencer is Robert Spencer's son. 27. Evan Spencer was a minor on July 10, 1999, his date of birth being 7/28/91. 28. At all times relevant hereto, Robert Spencer had a duty to monitor and control the behavior of Evan Spencer so as to prevent harm to third persons. 29. At all times relevant hereto, Robert Spencer was aware or should have been aware that Evan Spencer had the propensity to operate motor vehicles in the manner described in Plaintiffs' Complaint and in paragraph 22 above. 30. Robert Spencer breached his duty to monitor and control the behavior of Evan Spencer so as to prevent harm to third persons, and such breach was the proximate cause of any injuries suffered by Plaintiffs or their decedent. 31. Prior to the accident described in Plaintiffs' Complaint, Robert Spencer entrusted the above-described vehicle to Evan Spencer's use. 32. Robert Spencer's act of entrusting the vehicle to Evan Spencer's use was a breach of his duty to prevent harm to third persons and the proximate cause of any injuries suffered by Plaintiffs or their decedent. 33. Ih the event that Plaintiffs recover any judgment against Defendants Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker herein as a result of the injuries alleged to have been sustained by the accident referred to in Plaintiffs' Complaint, such liability to Plaintiffs being expressly denied, then Defendants Ocker assert that Additional Defendant, Robert Spencer is solely liable to Plaintiffs, jointly and severally 7 C liable with Defendants Ocker, or liable over to Defendants Ocker on the claims asserted in Plaintiffs' Complaint. WHEREFORE, Defendants, Gordon Ocker, Donna Ocker and Benjamin G. Ocker, demand judgment against Additional Defendant, Robert Spencer, on the grounds that he is solely liable to the Plaintiffs, jointly and severally liable with Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker, or liable over to Gordon Ocker, Donna Ocker and/or Benjamin G. Ocker for contribution and/or indemnity on the claims made by Plaintiffs. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: $` ~ 1,2 ~0 ~ Cfiarles E. Haddick, Jr., Esquire Attorney I.D. No. 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36t" Street Camp Hill, PA 17011 (717)731-4800 Counsel for Defendants Gordon Ocker, Donna Ocker and Benjamin G. Ocker 8 VERIFICATION I, Gordon Ocker, hereby verify that the facts set forth in the foregoing Joinder Complaint 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. §4904, relating to unsworn falsification to authorities. Date: ~ ~ C1 ' ®~ ~~~~,~1~~~ Gordon Ocker ~- ,-, aj~ s , h~ [f ( ^ ~ „ 6 P ~ {JW ~~A y. Y ~]SS~ 1~ ,1 VERIFICATION I, Donna Ocker, hereby verify that the facts set forth in the foregoing Joinder Complaint 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. §4904, relating to unsworn falsification to authorities. Date: ~/ (.o/~ Donna Ocker E VERIFICATION I, Benjamin Ocker, hereby verify that the facts set forth in the foregoing Joinder Complaint 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. §4904, relating to unsworn falsifii~tion to authorities. Date: 8-6-0/ ~_-''` ~` <NwJ~FJ L~'fv----`---:,.--~~ enjamin Ocker r CERTIFICATE OF SERVICE AND NOW, this y of August, 2001, I, Lori Adamcik Kariss, Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 Evan Spencer C/O William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Robert Spencer C!O William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Via Sheriff's Service: Marlin L. Rudy 1667 Walnut Bottom Road Newville, Cumberland County PA Kimberly Rudy 1667 Walnut Bottom Road, Newville, Cumberland County, PA ~~ ~ ~~~~ LL i~amcik Kanss, Esqure 9 t A } THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. CORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants i~~a I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NOTICE TO DEFENDANTS NAMED HEREIN: 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla Corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted time viente (20) dias de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. p~~~p' egg @.~~yp~~,~.$~ y, ~~~.~,~ RP 7~' q~"diV9 Ee~Y3q a 7&~"%~y+']r~~3~,~iC n%S9( i~f~ P?~3~ r CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 FRIEDMAN & KING, P.C. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Dated: \~~ ~~ Richard S. Friedman, Esquire 600 North Second St. Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 ~ ~ - -~ ~ < THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS by EDWARD L. STUM, CUMBERLAND COUNTY, PENNSYLVANIA Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. NO. GORDON OCKER and DONNA OCKER, husband and wife, and . BENJAMIN G. OCKER, CIVIL ACTION - LAW Defendants COMPLAINT 1. Plaintiff, Edward L. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241. Plaintiff, Edward L. Stum, is the Administrator of the Estate of Eric E. Stum, deceased ("Decedent") having been appointed by the Register of Wills of Cumberland County, Pennsylvania on July 29, 1999, and is also the surviving father of the Decedent. 2. Plaintiff, Nancy E. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241, and is the wife of Plaintiff, Edward L. Stum, and is also the surviving mother of Decedent. 3. Defendants, Gordon and Donna Ocker, are adult individuals, husband and wife, and reside at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. ~ ~ ~ ~ ~ j , 4. Defendant, Benjamin G. Ocker, is an adult individual, who resides at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 5. No person who is not a Plaintiff in this action is entitled by law to recover damages based upon the death of the Decedent. 6. On or about July 10 ," 1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy. 7. On or about July 10, 1999, John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence. 8. At that time and place, a party was being held at the residence of Defendants, Gordon and Donna Ocker, by their then minor son, Defendant, Benjamin G. Ocker. 9. At that time and place, Defendants, Gordon and Donna ticker, knew or should have known based on prior experiences that their minor son intended to have a party with alcoholic beverages at their home. 10. At that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party. 11. At approximately 9:35 p.m., after consuming alcoholic beverages, Evan Spencer left the party in Evan Spencer's 1992 Dodge Stealth motor vehicle, along with Eric Stum, his passenger. `- ~ - ~ 1 4 12. As Evan Spencer traveled on SR il, Penn Township, Cumberland County, at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on collision. 13. Evan Spencer's inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle. 14. As a result of the accident, the Decedent, Eric E. Stum, suffered injuries which resulted in his death. COUNT I SURVIVAL ACTION and Donna Ocker 15. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 16. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 17. -The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendants, Gordon Ocker and Donna Ocker, which consisted of the following: A. Permitting their minor son, Benjamin G. Ocker, to have a party at their home. ~ ~ ) i , B. Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. C. Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages, although he was not of legal drinking age. D. Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. E. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. F. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. G. Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 18. As a direct and proximate result of the aforesaid behavior of Defendants, Gordon Ocker and Donna Ocker, the Defendants are liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. i 4 ~ , D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II WRONGFUL DEATH ACTION Plaintiffs. Edward L. Strum and Nancy E. Stum, individually v. Defendants, Gordon Ocker and Donna Ocker 19. Paragraphs 1 through 18 of the Complaint are incorporated herein by reference as though more fully set forth at length. 20. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 21. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 22. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendants. 23. As a direct and proximate result of the aforesaid behavior of the Defendants, the Plaintiffs suffered and the Defendants are liable for the following damages: A. Funeral expenses for the Decedent. ~~ ~ J i ~ B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III PUNITIVE DAMAGES 24. Paragraphs 1 through 23 of the Complaint are incorporated herein by reference as though more fully set forth at length. 25. Defendants', Gordon and Donna Ocker, conduct of permitting their then minor son to have a party at their residence, including alcoholic beverages, while they were not at home constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendants knew or should have known that alcohol would be consumed by minors, which created a high risk to other persons. ' - ~ T ~ 26. Said conduct of Defendants constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COIINT IV SURVIVAL ACTION 27. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 28. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 29. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendant, Benjamin G. Ocker, which consisted of the following: A. Hosting a party with his parents' permission. B. Permitting alcoholic beverages to be served and consumed, although they knew or should have known that it would be served to minors, including Evan Spencer. r C. Facilitating the consumption of alcoholic beverages by minors. D. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. E. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 30. As a direct and proximate result of the aforesaid behavior of Defendant, Benjamin G. Ocker, the Defendant is liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. ~~ j COUNT V WRONGFUL DEATH ACTION i 31. Paragraphs 1 through 14 and 27 through 30 of the Complaint are incorporated herein by reference as though more fully set forth at length. 32. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 33. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 34. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendant. 35. As a direct and proximate result of the aforesaid behavior of the Defendant, the Plaintiffs suffered and the Defendant is liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result~of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. °~ fi Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT VI PUNITIVE DAMAGES 36. Paragraphs 1 through 14 and 27 through 35 of the Complaint are incorporated herein by reference as though more fully set forth at length. 37. Defendant's, Benjamin G. Ocker, conduct of hosting a party without alcoholic beverages constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendant knew or should have known that alcohol would be consumed by minors, creating a high risk to other persons. 38. Said conduct of Defendant constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. ,• ~ ~ - . WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Date • ~~ Respectfully submitted, FRIEDMAN & KING, P.C. „~ 60 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 k/p:pleadings\stum.cmp a ~ ~ , I, Edward L. Stum, Administrator of the Estate of Eric E. Stum, and we, Edward L. Stum and Nancy E. Stum, individually, hereby acknowledge that we are the Plaintiffs in the foregoing action; that we have read the foregoing Complaint; and the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Edwa d `~Stum, Administrator u~ of the Estate of Eric E. Stum .i'/.~/ Edward L. tum Nancy Stum Dated: ~'"~~~~~~~ <~ ~.. '~.:: ,.,~~, ~_' ~~ ~ ~ ~i THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY . Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 Civil Term v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED r' - ___ r, - NOTICE TO PLEAD ;~ . T0: THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ~_ " - ADMINISTRATOR, AND EDWARD L. STUM := .'~ AND NANCEY E. STUM, INDIVIDUALLY -< c;. _;' cto Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF DEFENDANTS, GORDON OCKER AND DONNA OCKER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: July 24, 2001 MARSHALL & HADDICK, P.C. --_•~, ~ Charles E. Haddick, Jr.,~Esquire Attorney I.D. No: 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No: 66465 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Gordon and Donna Ocker and Benjamin Ocker, ONLY s 1 THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. CORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants ORDER JURY TRIAL DEMANDED AND NOW, this !day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections filed by Defendants Gordon and Donna Ocker are SUSTAINED, and paragraph 17(G) of Plaintiffs' Complaint against them is DISMISSED WITH PREJUDICE. IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. BY THE COURT: THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANGEY E. STUM, INDIVIDUALLY Plaintiffs v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION -LAW DOCKET NO: 01-4123 Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections filed by Defendants Gordon and Donna Ocker are SUSTAINED, and all claims for punitive damages against the Defendants Gordon and Donna Ocker are DISMISSED WITH PREJUDICE. BY THE COURT: J. .. THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM ANb NANCEY E. STUM, INDIVIDUALLY Plaintiffs IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION -LAW DOCKET NO: 01-4123 v. CORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS, CORDON AND DONNA OCKER, HUSBAND ANR WIFE, TO PLAINTIFFS' COMPLAINT AND NOW come the Defendants, Gordon Ocker and Donna Ocker, husband and wife, by and through their counsel, Marshal{ & Haddick, P.C., and preliminarily object to Plaintiffs' Complaint as follows: 1. Plaintiffs allege that their decedent, Eric E. Stum, suffered injuries in an automobile accident that occurred on or about July 10, 1999 which resulted in his death. See Plaintiffs' Complaint at paragraph 14. (A true copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"). 2. Plaintiffs allege that the minor son ofi Defendants Gordon and Donna Ocker, Defendant Benjamin G. Ocker, hosted a party at the Ocker home on July 10, 1999. See paragraph 8 of Plaintiffs' Complaint. .. 3. Plaintiffs further allege that their decedent was a passenger in a vehicle driven by Evan Spencer at the time of the accident in question and that Evan Spencer was unable to operate his vehicle in a safe manner because he was "extremely intoxicated." See paragraphs 11 -13 of Plaintiffs' Complaint. 4. Paragraph 17 of Plaintiffs' Complaint alleges that Defendants Gordon and Donna Ocker acted willfully, wantonly, recklessly and negligently in the following respects: (a) Permitting their minor son, Benjamin G. Ocker to have a party at their home. (b) Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. (c) Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages although he was not of legal drinking age. (d) Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. (e) Intending to furnish, agreeing to furnish or promoting the furnishing of alcohol to various minors, including Evan Spencer. (f) Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 2 (g) Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 5. Plaintiffs allege that as a result of the conduct alleged in paragraph 17 of their Complaint, the Defendants Gordon and Donna Ocker are liable to them in this wrongful death and survival action. See Plaintiffs' Complaint at Counts I and ll. 6. Plaintiffs also make a claim for punitive damages against Defendants Gordon and Donna Ocker. See Plaintiffs' Complaint at Count III. Objection Pursuant to Pa. R,C.P.1028(a)(4) 7. Paragraphs 1 - 6 are incorporated herein by reference. 8. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 9. The son of Defendants Gordon and Donna Ocker, Defendant Benjamin G. Ocker, was born June 28, 1979. See transcript of deposition of Benjamin G. Ocker taken in connection with six cases currently before this Honorable Court arising from the same July 10, 1999 accident, at page 10, a true and correct copy of which is attached hereto as Exhibit B. 10. He was twenty (20) years old on the date of the incident referred to in Plaintiffs' Complaint. Id. 11. Plaintiffs claim that the Ockers failed to provide adequate parental supervision of Ben Ocker. -See Complaint at paragraph 17(G). 3 ~. ~ ) 12. To the extent that Plaintiffs assert liability against the Ockers as described above, they have failed to set forth a cause of action against Defendants Gordon and Donna Ocker upon which relief may be granted. Maxwell v. Keas, 433 Pa. Super. 70, 639 A.2d 1215 (1994). 13. Liability may not be imposed on parents for the actions of children over the age of 18 still living at home. td. 14. As such, the Ockers may not be held liable under the theory that they failed to properly supervise their son unless he were under the age of 18 at the time in question. 15. Plaintiffs have therefore failed to state a claim for negligent parental supervision against Defendants Gordon and Donna Ocker upon which relief may be granted. WHEREFORE, Defendants, Gordon Ocker and Donna Ocker respectfully request that this Honorable Court grant their Preliminary Objections and dismiss Plaintiffs' claims for negligent parental supervision from the Plaintiffs' Complaint with prejudice. Objection Pursuant to Pa. R.C.P. 1028 (a-(4) 16. Paragraphs 1 -15 are incorporated herein by reference. 17. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 4 18. Plaintiffs' Complaint contains a claim against Defendants Gordon and Donna Ocker for punitive damages. See Count III of Plaintiffs' Complaint. 19. First, Defendants Gordon and Donna Ocker seek the dismissal of Count III of Plaintiffs' Complaint for failing to state a claim upon which relief can be granted. There is no independent cause of action for punitive damages recognized by the law of this Commonwealth. 20. Secondly, with respect to any claim for punitive damages asserted against Defendants Gordon and Donna Ocker by way of the remainder of the Complaint, this Court should strike same for legal insufficiency. 21. Punitive damages are not available in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983). 22. Punitive damages are not recoverable in a survival action unless the decedent could have recovered them had he survived. Id. at 102, 461 A.2d at 816. 23. Punitive damages are warranted only when a defendant's conduct is outrageous, because of an evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts §908(2). 24. Allegations of negligence or gross negligence can not support a claim for punitive damages. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 5 25. Plaintiffs' Complaint does not contain allegations sufficient to support a finding that Gordon and Donna Ocker acted intentionally, maliciously, or in conscious disregard of a known and realized risk to their decedent. 26. The allegations in Plaintiffs' Complaint are legally insufficient to support a finding of the state of mind required to award punitive damages. 27. Plaintiffs have failed to state a claim for punitive damages against Defendants Gordon and Donna Ocker. WHEREFORE, Defendants Gordon and Donna Ocker respectfully request that this Court grant their Preliminary Objections and strike all claims for punitive damages asserted by the Plaintiffs. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: ~ ? ~ ~ O I Charles E. Ha ick, Jr., Esquire Attorney I.D. No. 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36~h Street Camp Hill, PA 17011 (717)731-4800 Counsel for Defendants Gordon and Donna Ocker 6 ~. ~. THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, v. Plaintiffs GORDON OCKER and DONNA OCKER, husband and wife, and. BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NOTICE CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla come. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dial de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la come en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la come tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. T ~~ (~ T Y ~ , I e~ a,a~ 8 €s~r4 V~as~( Vi`i' ~ ~'~. .~... ~, ~ + Y, n TO DEFENDANTS NAMED HEREIN: 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. .. LLEVE ESTA DEMANDA A UN ABOGADO IMME ABOGADO 0 SI NO TIENE EL DINERO SUFICIENT VAYA EN PERSONA O LLAME POR TELEFONO A LA SE ENCUENTRA E5CRITA ABAJO PARA AVERIGUAR CONSEGUIR ASISTENCIA LEGAL. DIATAMENTE. SI NO TIENE E DE PAGAR TAL SERVICIO, OFICINA CUYA DIRECCION DONDE SE PUEDE CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 FRIEDMAN & KING, P.C. R ch rd S. Friedman, Esau re 600 North Second 5t. Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 Dated:\l ~ ~~ THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L. STUM and NANCY E. STUM, individually, Plaintiffs v. GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . NO. CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Edward L. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241. Plaintiff, Edward L. Stum, is the Administrator of the Estate of Eric E. Stum, deceased ("Decedent") having been appointed by the Register of Wills of Cumberland County, Pennsylvania on July 29, 1999, and is also the surviving father of the Decedent. 2. Plaintiff, Nancy E. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241, and is the wife of Plaintiff, Edward L. Stum, and is also the surviving mother of Decedent. 3. Defendants, Gordon and Donna Ocker, are adult individuals, husband and wife, and reside at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. ~~+~ ~ , _ __ 4. Defendant, Benjamin G. ticker, is an adult individual, who resides at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 5. No person who is not a Plaintiff in this action is entitled by law to recover damages based upon the death of the Decedent. 6. On or about July 10,'1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy. 7. On or about July 10, 1999, John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence. 8. At that time and place, a party was being held at the residence of Defendants, Gordon and Donna Ocker, by their then minor son, Defendant, Benjamin G. Ocker. 9. At that time and place, Defendants, Gordon and Donna Ocker, knew or should have known based on prior experiences that their minor son intended to have a party with alcoholic beverages at their home. 10. At that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party. 11. At approximately 9:35 p.m., after consuming alcoholic beverages, Evan Spencer left the party in Evan Spencer's 1992 Dodge Stealth motor vehicle, along with Eric Stum, his passenger. ,~ ~tza .,' i . 12. As Evan Spencer traveled on SR 11, Penn Township, Cumberland County, at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on collision. 13. Evan Spencers inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle. 14. As a result of the accident, the Decedent, Eric E. Stum, suffered injuries which resulted in his death. COUNT I SIIRVIVAL ACTION 15. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 16. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 17. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendants, Gordon Ocker and Donna Ocker, which consisted of the following: A. Permitting their minor son, Benjamin G. Ocker, to have a party at their home. ~:.: B. Permitting alcoholic beverages to 'be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. C. Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages, although he was not of legal drinking age. D. Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. E. Intending to"furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. F. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. G. Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 18. As a direct and proximate result of the aforesaid behavior of Defendants, Gordon Ocker and Donna Ocker, the Defendants are liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retir-ement and Social Security income. 3 D. Decedent's other financial lasses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COONT II WRONGFiJL DEATH ACTION 19. Paragraphs 1 through 18 of the Complaint are incorporated herein by reference as though more fully set forth at length. 20. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 21. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 22. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendants. 23. As a direct and proximate result of the aforesaid behavior of the Defendants, the Plaintiffs suffered and the Defendants are liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III PUNITII~E DAMAGES 24. Paragraphs 1 through 23 of the Complaint are incorporated herein by reference as though more fully set forth at length. 25. Defendants', Gordon and Donna Ocker, conduct of permitting their then minor son to have a party at their residence, including alcoholic beverages, while they were not at home constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendants knew or should have known that alcohol would be consumed by minors, which created a high risk to other persons. Gordon Ocker and Donna Ocker % ~ C. Facilitating the consumption of alcoholic beverages by minors. D. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. E. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 30. As a~direct and proximate result of the aforesaid behavior of Defendant, Benjamin G. Ocker, the Defendant is liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. - J } COUNT V WRONGFUL DEATH ACTION Plaintiffs. Edward L. Stum and Nancy E. Stum. Individually v. Defendant. Benjamin G. Ocker 31. Paragraphs 1 through 14 and 27 through 30 of the Complaint are incorporated herein by reference as though more fully set forth at length. 32. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 33. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 34. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendant. 35. As a direct and proximate result of the aforesaid behavior of the Defendant, the Plaintiffs suffered and the Defendant is liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedents injuries and death. C. The Plaintiffs deprivation and injury as a result 'of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Date:`~~ OW k/p:pleadings\stum.cmp Respectfully submitted, FRIEDMAN & KING, P.C. .., 60 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 ( ' ~ ~ ~ ~ - ~ 1~.~ ~ . VERIFICATION 2, Edward L. Stum, Administrator of the Estate of Eric E. Stum, and we, Edward L. Stum and Nancy E. Stum, individually, hereby acknowledge that we are the Plaintiffs in the foregoing action; that we have read the foregoing Complaint; and the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Edward L. Stum, Administrator of the Estate of Eric E. Stum dward um/ Nancy Stum Dated: `~,~/'" ~r~~~ Multi-Page `~' BENJAdvIIN oCxER ~ rvvv~m>~uc ~a, luau Page 10 I Q What is your date of birth? z A 6-28-79. 3 Q So then on July 10 of l 999, you were 20 years a old? 5 A Yes. 6 Q Plus about a week or two? 7 A Yeah. 8 Q What is your social security number? 9 A 179-68-0930. to Q Were you employed on July l0 of 1999? i l A Yes. 12 Q Where were you employed? 13 A Exel Logistics. la Q Is that where you are currently employed? IS A Yes. 16 Q In July of 1999, at that point in time, how long n had you been employed with Exel Logistics? 18 A Since October of 1997. 19 Q You had graduated from high school in 1997, is 20 that correct? 21 A Yes. X22 Q Was that your first main job then after 23 graduation from high school? '24 A I worked at a graveyard for about three months. 25 Q Right after high school? Page I1 1 A Yes. 2 Q While you were in high school, were you employed 3 at all? 4 A Yes. 5 Q Where? 6 A Cazelli's Deli Subs and Pi2za. 7 Q Where is that located? 8 A On Walnutbottom Road in Cazlisle. 9 Q How long did you work for them? 10 A Since I was fifteen. 11 Q Now, when you were hired at Exel Logistics in ',12 October of 1997, what job were you hired For? 13 A Forklift operator. 14 Q is that your current position as well? 15 A Yes. 16 Q What was your rate of pay in October of 1997? 17 A 8.60. And then after 90 days, it went up to t8 9.10. 19 Q What is it currently? 2D A It's eleven dollazs. 21 Q Have you ever left employment with Exel 22 Logisti cs? 23 A No. 24 Q And is that a forty hour a week job? 25 A Yes. Page 12. I Q Were you provided any benefits through that 2 employment? 3 A Yes. 4 Q What benefits? 5 A Oh, medical, dental, vision, I think [hat's it. 6 Q Any type of pension? 7 A I am not real sure. 8 Q Were you immediately eligible for those benefits, 9 medical, dental or vision or was there -- 10 A After 90 days, after -- it was like the first 90 11 days is part time, then I was hired on full time. 12 Q So then those benefits were in effect on ]u1y10 l3 of 1999? l4 A Yes. 15 Q As of July 10 of 1999, were you carried on any 16 type of insurance from your parents? They were 17 policyholders or your mother and father had through their 18 employment? 19 A I think so, yes. I have no clue. 20 Q But in any event, as faz as you knew though on 21 July 10 of 1999, you had medical, insurance through your 22 employmett, dental insurance and vision insurance through 23 your employment? 24 A Yes. 25 Q So that if you had an accident and had to go to Page 13 1 tbe emergency room yourself in Juty of 1999, you would Lave 2 presented your own insurance card from your employment with 3 Exel at the hospital? 4 A Yes. 5 Q On Iuly 10 of 1999, did you have any bank 6 accounts? 7 A Yes. 8 Q How many? 9 A Checking and savings. 10 Q With what bank? 11 A It's M & T Bank now. 12 Q Are you the sole owner of [hose accounts? 13 A Yes. 14 Q No one else is Warned as a joint accountholder? 15 A No. 16 Q And how tong have you had those accounts? 17 A I am not sure how long savings. The checking I 18 got right after I goi out of high school. 19 Q So sunmrer of 1997? 20 A Yes. 21 Q Do you have any credit cazds? 22 A No. 23 Q None at all, not including gas station or -- 24 A No, none at all. ~ _ .~i i 25 Q Are You aware of what your account balances are HUGHES, ALBRIGAT, FOLTZ & NATALE Page 10 - Yage 13 717-540-0220\717-393-5101 VERIFICATION PURSUANT TO Pa. R.C.P. NO. 1024(c) I, Charles E. Haddick, )r., Esquire, states that he is the attorney for the parry filing the foregoing document; that he makes this affidavit as an attorney, because the parry he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and/or because the party for whom he makes this affidavit is outside the jurisdiction of the Court and verification of none of them can be obtained within the time allowed for the filing of the pleading; and that he has sufficient knowledge or information and belief, based upon her investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Dated: Charles E. Hadd ck, )r., Esquire 7 ~y~~' CERTIFICATE OF SERVICE AND NOW, this y of July, 2001, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 Charles E. ick, Jr., Esquire 9 *,. ,. ~'~ } ~ Q 12001 , ' Wicr2s-a- P~ ~,~ THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY . CIVIL ACTION -LAW Plaintiffs . DOCKET NO: 01-4123 v. CORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and : AU6 Q ~ 2Q01 r BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED"-""""""'"""""""'"" BRIEF OF DEFENDANTS, CORDON AND DONNA OCKER IN SUPPORT OF PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendants, Gordon and Donna Ocker, by and through their attorneys, Marshall and Haddick, P.C., and file this Brief in support of their preliminary objections to Plaintiffs' Complaint. 1. FACTUAL AND PROCEDURAL HISTORY Plaintiffs allege that on or about July 10, 1999, their decedent, Eric E. Stum, suffered injuries in an automobile accident which resulted in his death. See Plaintiffs' Complaint at paragraph 14. (A true and correct copy of Plaintiffs' Complaint is attached to Defendants' Preliminary Objections as Exhibit "A"). Plaintiffs allege that the minor son of Defendants Gordon and Donna Ocker, Defendant Benjamin G. Ocker, hosted a party at the Ocker home on July 10, 1999. See paragraph 8 of Plaintiffs' Complaint. They further allege that their ..~ ~~ decedent was a passenger in a vehicle driven by Evan Spencer at the time of the accident in question and that Evan Spencer was unable to operate his vehicle in a safe manner because he was "extremely intoxicated." See paragraphs 11 -13 of Plaintiffs' Complaint. Paragraph 17 of Plaintiffs' Complaint alleges that Defendants Gordon and Donna Ocker acted willfully, wantonly, recklessly and negligently in the following respects: (a) Permitting their minor son, Benjamin G. Ocker to have a party at their home. (b) Permitting alcoholic beverages to be served at the party, although they knew or should have known that it wou{d be consumed by minors, including Evan Spencer. (c) Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages although he was not of legal drinking age. (d) Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. (e) Intending to furnish, agreeing to furnish or promoting the furnishing of alcohol to various minors, including Evan Spencer. (f) Furnishing, agreeing to famish, or promoting the furnishing of alcoho- to various minors, including Evan Spencer. (g) Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. Plaintiffs allege that as a result of the conduct alleged in paragraph 17 of their Complaint, the Defendants Gordon and Donna Ocker are liable to them in this wrongful death and survival action. See Plaintiffs' Complaint at Counts I and 11. 2 _~: ~; [However], [t]he pleader's conclusions of law are not considered to be admitted as true by a demurrer. The County of Allegheny v. The Commonwealth of Penns Ivania, 507 Pa. 360, 490 A.2d 402 (1985)(citations omitted). A. Plaintiffs' Complaint fails to set forth a legally sufficient claim against Gordon and Donna Ocker for negligent supervision. The Ockers' son, Ben Ocker, was bom June 28, 1979. See transcript of deposition of Benjamin G. Ocker, at page 10, a true and correct copy of which is attached to the Ockers' Preliminary Objections as Exhibit B. Thus, he was twenty (20) years old on the date of the incident referred to in Plaintiffs' Complaint. This is material to the Plaintiffs' claim that the Ockers failed to provide adequate parental supervision of Ben Ocker. See Complaint at paragraph 17(G). To the extent that Plaintiffs assert liability against the Ockers as described above, the Superior Court decision in Maxwell v. Keas, 433 Pa. Super. 70,.639 A.2d 1215 (1994) is instructive. In Maxwell, the defendants' 19 year old daughter received a nocturnal visit from her boyfriend while her parents were away on vacation. The daughter and her boyfriend drank alcoholic beverages found in the parents' home. The daughter then became angry and killed the boyfriend. Maxwell, 639 A.2d at 1217. 4 The Superior Court held that liability could not be imposed on the parents merely because they were the parents of the daughter. Id. at 1217. The court rejected an argument that the parents could be liable for taking inadequate precautions to prevent their daughter from invading their supply of alcoholic beverages, noting that the daughter was "an adult person; and, therefore, a duty cannot readily be imposed upon her parents to provide continuous supervision and control over her daily conduct." Id. at 1218. The Superior Court cited to a Massachusetts Supreme Court case far the proposition that "the fortuity [of a 19 year old son living in his parents' home] does not create a duty where none otherwise exists; nor does their status as parents, without more, impose on the defendants the duty to supervise and control their emancipated adult son." Maxwell supra at 1218, citing DePasquale v. Dello Russo, 349 Mass. 655, 659, 212 NE.2d 237 (1965). The Superior Court also cited a Michigan case where the court concluded that parents were not negligent for failing to prevent their 18 year old son from consuming alcoholic beverages in their home. Maxwell, supra at 1219 citing Reinert v. Dolezel, 147 Mich.App. 149, 383 N.W.2d 148 (1985). The Superior Court cited extensively to Reinert as follows: Although plaintiff refers to the young people involved in this case as "minors", they were not .:.. A person who is 18 years of age is determined to bean adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age, notwithstanding any other provision of the law to the contrary. These people were not minors; they were adults 5 who were not old enough drink alcoholic beverages legally. Any duties the parents had to supervise their child's conduct ended when that child became an adult. To make homeowners civilly liable for iNegal activity being conducted by adults in their home, of which the homeowners have no part, would be to break new ground in Michigan jurisprudence. The problem of teenagers who drink and drive is a serious one. But we know of no jurisdiction which imposes a duty upon homeowners to stop adults from illegally drinking in their home... There is no duty to control the conduct of a third party so as to prevent him from causing physical harm to another unless a special relationship exists.... Parents are under a duty to exercise reasonable care to control their minor child, but this duty ends when the child becomes an adult, and that happens in Michigan at age 18. Maxwell, supra at 1219 citing 383 N.W.2d at 151 (citations omitted). The Pennsylvania Superior Court agreed, holding: Under the general principle of law set forth in the Section 315 of the Restatement (Second) of Torts, there is no duty to control the conduct of a third person so as to prevent him or her from causing physical harm to another in the absence of a special relationship between the actor, and the third person. In this case, the trial court properly concluded that there was no special relationship between the homeowners and either their daughter or her guest which was sufficient to impose uporrthe homeowners a duty to control the conduct of their daughter so as to prevent her from killing her guest during an angry frenzy. Maxwell, supra at 1219. In this case, Plaintiffs have alleged that the Ockers are liable for failing to control the behavior of their son. Plaintiffs have not alleged any facts that could support the conclusion that a special relationship existed between the Ockers and either the Plaintiffs' decedent or Ben Ocker. As such, the Ockers may not be 6 held liable under the theory that they failed to properly supervise their son unless he were under the age of 18 at the time in question. On its face, this argument may seem in conflict with an argument being advanced on behalf of the Ockers' son and Co-Defendant in this case, Benjamin G. Ocker. See Preliminary Objections of Defendant, Benjamin G. Ocker and brief in support thereof. The two arguments, however, are consistent under the law of this Commonwealth. It is clear that the Pennsylvania Supreme Court has ruled that a minor may not be held civilly liable for furnishing alcohol to another minor. Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994). Under the law of this Commonwealth, Benjamin G. Ocker may not be treated as an adult for the purposes of civil liability with regard to furnishing alcohol. This rule notwithstanding, it is also the clear mandate of the courts that parents cannot be required to supervise the actions of their children between the ages of 18 and 21, who are considered adults in this Commonwealth for most purposes other than consuming alcohol or furnishing alcohol in a social setting. Plaintiffs' claims against Gordon and Donna Ocker for negligent supervision, therefore, are legally insufficient and should be stricken from their Complaint with prejudice pursuant to Pa. R.C.P. 1028(a) (4). B. Plaintiffs' Complaint fails to set forth a legally sufficient claim against Gordon and Donna Ocker for punitive damages. 7 Haines, 520 Pa. 484, 555 A.2d 58 (1989); Trotman v. Mecchella, 421 Pa. Super. 620, 618 A.2d 982 (1992); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Punitive damages must be based on conduct that is malicious, wanton, reckless, willful, or oppressive. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). An assessment of the actor's state of mind is vital when determining whether an award of punitive damages is proper. Id. The act, or failure to act, must be intentional, reckless or malicious. Id. Punitive damages may not be awarded when there is no evidence of an evil motive or of reckless indifference and conscious disregard to the safety of others. Id. The Pennsylvania Supreme Court has looked to the Restatement for guidance in determining what type of behavior is "reckless" for the purpose of awarding punitive damages. See e.g• Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). Section 500 of the Restatement states that: [t]he actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater that that which is necessary to make his conduct negligent. Comment a to Section 500 states that recklessness may consist of either of two types of conduct. In the first, the actor has reason to know of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to, that risk. In the second, the actor has such knowledge, or reason to know, of facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. Case law has recognized the distinction between these two types of "reckless" behavior and held that only the first type is sufficient to support a claim for punitive damages. Martin v. Johns- Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). From the outset, it is clear that Plaintiffs have not alleged that the Ockers acted intentionally or with an evil motive towards their decedent. As such, any award of punitive damages must be based on a finding that the Ockers acted in reckless indifference to the Plaintiffs' decedent's safety. Under the standard required on a demurrer, this Court must accept as true the factual allegations of Plaintiffs' Complaint. However, this Court is not required to accept the allegations that the conduct complained of rises to the level required to support an award of punitive damages. When the allegations in Plaintiffs' Complaint are reviewed under the standard required on a demurrer, it becomes apparent that the conduct alleged sounds in negligence, perhaps even gross negligence. Even if the conduct can be deemed reckless, it is clear that it falls into the second category of conduct discussed above. Plaintiffs' Complaint is devoid of any allegations that could support a finding that the Ockers had reason to know of facts which create a high degree of risk of physical harm to the Plaintiffs' decedent, and deliberately 10 proceeded to act, or failed to act, in conscious disregard of, or with indifference to, that risk. The mere fact that a danger should have been foreseen does not mean that the risk of danger was realized by the defendant to the extent necessary to show that degree of knowledge and the conscious disregard thereof needed for a finding of recklessness. It is not sufficient to allege that an objective person should have done more or that the defendant was negligent or even grossly negligent in participating in or failing to stop a party at which minors consumed alcohol to justify punitive damages. Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 655 A.2d 138 (1995), appeal granted in part, 679 A.2d 255, rev'd in part, 695 A.2d 397, reargument denied. Although Plaintiffs may have stated a claim for negligence, perhaps even gross negligence, against the Ockers, the Complaint is devoid of any facts to show that the Ockers acted with an evil intent towards the Plaintiffs. Likewise, the facts pled and the reasonable inferences arising there from cannot support a finding that the Ockers acted with the requisite maliciousness or reckless and conscious disregard for Plaintiffs' safety. As such, the claims for punitive damages against the Ockers should be dismissed with prejudice. I. CONCLUSION Defendants Gordon and Donna Ocker may not be held liable under the facts alleged for the negligent supervision of their son, Defendant Benjamin G. Ocker. Paragraph 17(g) of their Complaint should therefore be stricken with 11 ,; prejudice. Further, the facts pled cannot support an award of punitive damages. As such, this Honorable Court should sustain the Preliminary Objections filed by Defendants Gordon and Donna Ocker. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: ~(~~b~ ~ C es E. a ick, Jr., Esquire Attorney I.D. No. 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36~h Street Camp Hitl, PA 17011 (717)731-4800 Counsel for Defendants Gordon and Donna Ocker 12 CERTIFICATE OF SERVICE AND NOW, this day of July, 2001, Lori Adamcik Kariss., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 -~.~--~ Lori Adamcik Kariss, Esquire 13 ~~ .~C l2g'~~)a~ THE ESTATE OF ERIC E. STUM, IN THE COURT OF CO BY EDWARD L. STUM, OF CUMBERLAND COU ADMINISTRATOR, AND EDWARD L. ____ _ ________ STUM AND NANCEY E. STUM, _ INDIVIDUALLY CIVIL ACTION -LAW Plaintiffs DOCKET NO: 01-4123 Civil Term v. GORDON OCKER AND DONNA , OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD r-' TO: THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY c/o Richard S. Friedman, Esquire 800 North Second Street = _ P.O. Box 984 -5 <r. Harrisburg, Pa 17108 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIM{NARY OBJECTIONS OF DEFENDANT, BENJAMIN OCKER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: July 24, 2001 MARSHALL & HADDICK, P,C. ~-~__~::i~~ Charles E. Haddick, Jr., Esquire Attomey I.D. No: 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No: 66465 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Gordon and Donna Ocker and Benjamin Ocker, ONLY JUL 2'~ 2007 ~ M N PLE ~ THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY . CIV{L ACTON -LAW Plaintiffs DOCKET NO: 01-4123 v. CORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this ^ day of , 2001 it is ORDERED that the Preliminary Objections filed by Defendant Benjamin G. Ocker are SUSTAINED and that Plaintiffs' Complaint is DISMISSED with prejudice. BY THE COURT: J. THE ESTATE OF ERIC E. STUM, : IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, :OF CUMBERLAND COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001 it is ORDERED that the Preliminary Objections filed by Defendant Benjamin G. Ocker are SUSTAINED and that Count VI of Plaintiffs' Complaint is DISMISSED with prejudice. BY THE COURT: J. THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. CIVIL AGTlON -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA OCKER, HUSBAND AND WIFE, and BENJAMIN. G. OCKER, Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, BENJAMIN G. OCKER, TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Benjamin G. Ocker, by and through his counsel, Marshall & Haddick, P.C., and files the instant Preliminary Objections to Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028(a)(4). " 1. Plaintiffs allege that their decedent, Eric E. Stum, suffered injuries in an automobile accident that occurred on or about July 10, 1999 which resulted in his death. See Plaintiffs' Complaint at paragraph 14. (A true copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"). 2. Plaintiffs allege that Benjamin Ocker held a party at his parents' residence, at which Benjamin and other minors consumed alcoholic beverages. See paragraphs 8, 10 of Plaintiffs' Complaint. Preliminary Objection pursuant to Pa. R.C.P. 1028 ~) (4) 3. Defendant incorporates by reference paragraphs 1 - 2 above as if fully set forth herein. 4. In Paragraph 25 of their Complaint, Plaintiffs allege that their decedent was fatally injured as a result of the willful, wanton, reckless and negligent behavior on the part of Benjamin G. Ocker, which allegedly consisted of the following: (a) Hosting a party with his parents' permission. (b) Permitting alcoholic beverages to be served and consumed, although they [sicj knew or should have known that it would be served to minors, including Evan Spencer. (c) Facilitating the consumption of alcoholic beverages by minors. (d) Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. (e) Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 5. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 6. Plaintiffs have failed to state a claim against Benjamin G. Ocker because Pennsylvania law does not permit a minor to be held civilly liable for the act of furnishing alcohol to other minors. Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994). WHEREFORE Benjamin G. Ocker respectfully requests that this Honorable Court grant his Preliminary Objections and that Plaintiffs' Complaint be dismissed with prejudice. Alternative Preliminary Objection pursuant to Pa. R.C.P. 7028 (a) (4) 7. Paragraphs 1 - 6 are incorporated herein by reference. 2 ' ~~ I 8. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary objection on the grounds of the legal insufficiency of a pleading (demurrer). 9. Plaintiffs' Complaint contains a claim against Defendant Benjamin G. Ocker for punitive damages. See Count VI of Plaintiffs' Complaint. 10. First, Defendant Benjamin G. Ocker seeks the dismissal of Count VI of Plaintiffs' Complaint for failing to state a claim upon which relief can be granted. There is no independent cause of action for punitive damages recognized by the law of this Commonwealth. 11. Secondly, with respect to any claim for punitive damages asserted against Defendant Benjamin G. Ocker by way of the remainder of the Complaint, this Court should strike same for legal insufficiency. 12. Punitive damages are not available in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983). 13. Punitive damages are not recoverable in a survival action unless the decedent could have recovered them had he survived. Id. at 102, 461 A.2d at 816. 14. Punitive damages are warranted only when a defendant's conduct is outrageous, because of an evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts §908(2). 15. Allegations of negligence or gross negligence can not support a claim for punitive damages. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 3 i 16. Plaintiffs' Complaint does not contain allegations sufficient to support a finding that Benjamin G. Ocker acted intentionally, maliciously, or in conscious disregard of a known and realized risk to their decedent. 17. The allegations in Plaintiffs' Complaint are legally insufficient to support a finding of the state of mind required to award punitive damages. 18. Plaintiffs have failed to state a claim for punitive damages against Defendant Benjamin G. Ocker. WHEREFORE, Defendant Benjamin G. Ocker respectfully requests that this Honorable Court grant his Preliminary Objections and strike all claims for punitive damages asserted by the Plaintiffs. Respectfully submitted, c~ ` RM1ARSHALL & HADDICK, P.C. Date Z l ~ ~ I _.-~ , - . Had i k, Jr., Esquire Attorney I.D. No. 5666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36`" Street Camp Hill, PA 17011 (717) 731-4800 Counsel for Defendant Benjamin G. Ocker 4 r CERTIFICATE OF SERVICE AND NOW, this day of July, 2001, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon ali counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 s . Haddick, Jr., Esquire 7 L THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS by EDWARD L. STUM, : CUMBERLAND COUNTY, PENNSYLVANIA Administrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs CORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, CIVIL ACTION - LAW Defendants NOTICE TO DEFENDANTS NAMED HEREIN: 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla Corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Dated: \~ !r /~ ~' FRIEDMAN & KING, P.C. Richfird S. Friedman, Esquire 600 North Second St. Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 1 THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Admiriistrator, and EDWARD L. STUM and NANCY E. STUM, Individually, Plaintiffs v. GORDON OCKER and DONNA OCKER, husband and wife, and BENJAMIN G. OCKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . NO. CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Edward L. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241. Plaintiff, Edward L. Stum, is the Administrator of the Estate of Eric E. Stum, deceased ("Decedent") having been appointed by the Register of Wills of Cumberland County, Pennsylvania on July 29, 1999, and is also the surviving father of the Decedent. 2. Plaintiff, Nancy E. Stum, is an adult individual residing at 2 Meadows Road, Newville, Cumberland County, Pennsylvania 17241, and is the wife of Plaintiff, Edward L. Stum, and is also the surviving mother of Decedent. 3. Defendants, Gordon and Donna Ocker, are adult individuals, husband and wife, and reside at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. rt~ 4. Defendant, Benjamin G. Ocker, is an adult individual, who resides at 31 Stone Ledge Road, Newville, Cumberland County, Pennsylvania 17241. 5. No person who is not a Plaintiff in this action is entitled by law to recover damages based upon the death of the Decedent. 6. On or about July 10,'1999, Marlin L. Rudy and Kimberly Rudy purchased alcoholic beverages, including, but not limited to, a keg of beer for their then minor son, John Rudy. 7. On or about July 10, 1999, John Rudy transported the above-referenced keg of beer to Defendant Ockers' residence. 8. At that time and place, a party was being held at the residence of Defendants, Gordon and Donna Ocker, by their then minor son, Defendant, Benjamin G. Ocker. 9. At that time and place, Defendants, Gordon and Donna Ocker, knew or should have known based on prior experiences that their minor son intended to have a party with alcoholic beverages at their home. 10. At that time and place, several minors, which included Benjamin G. Ocker, John Rudy, Evan Spencer, and others consumed alcoholic beverages at the party. il,. At approximately 9:35 p.m., after consuming alcoholic beverages, Evan Spencer left the party in Evan Spencer's 1992 Dodge Stealth motor vehicle, along with Eric Stum, his passenger. .~ ! ~ 12. As Evan Spencer traveled on SR 11, Penn Township, Cumberland County, at a high rate of speed, he lost control of his vehicle, crossed the center line into the wrong lane of travel, and became involved in a head-on collision. 13. Evan Spencer's inability to safely operate his motor vehicle and the resulting accident were the direct and proximate result of him being extremely intoxicated and unable to properly control his vehicle. 14. As a result of the accident, the Decedent, Eric E. Stum, suffered injuries which resulted in his death. COUNT I SURVIVAL ACTION Plaintiff Edward L Stum Administrator of the Estate of Eric E. Stum v. Gordon Ocker and Donna Ocker 15. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 16. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 17. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendants, Gordon Ocker and Donna Ocker, which consisted of the following: A. Permitting their minor son, Benjamin G. Ocker, to have a party at their home. w t B. Permitting alcoholic beverages to be served at the party, although they knew or should have known that it would be consumed by minors, including Evan Spencer. C. Permitting their son, Benjamin G. Ocker, to consume alcoholic beverages, although he was not of legal drinking age. D. Allowing their son, Benjamin G. Ocker, and his minor friends to consume alcoholic beverages on their premises. E. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. F. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. G. Failing to provide adequate parental supervision of their son, Benjamin G. Ocker. 18. As a direct and proximate result of the aforesaid behavior of Defendants, Gordon Ocker and Donna Ocker, the Defendants are liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirzment and Social Security income. t D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COONT II WRONGFOL DEATS ACTION Plaintiffs. Edward L. Stem and Nancy E. Stum. Individually v. Defendants Gordon Ocker and Donna Ocker 19. Paragraphs 1 through 18 of the Complaint are incorporated herein by reference as though more fully set forth at length. 20. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 21. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 22. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendants. 23. As a direct and proximate result of the aforesaid behavior of the Defendants, the Plaintiffs suffered and the Defendants are liable for the following damages: A. Funeral expenses for the Decedent, ~;. } ~ B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III PUNITIVE DAMAGES 24. Paragraphs 1 through 23 of the Complaint are incorporated herein by reference as though more fully set forth at length. 25. Defendants', Gordon and Donna Ocker, conduct of permitting their then minor son to have a party at their residence, including alcoholic beverages, while they were not at home constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendants knew or should have known that alcohol would be consumed by minors, which created a high risk to other persons. Gordon Ocker and Donna Ocker i t 26. Said conduct of Defendants constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. Plaintiffs demand judgment against the Defendants, Gordon Ocker and Donna Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT IV SURVIVAL ACTION 27. Paragraphs 1 through 14 are incorporated herein by reference as though more fully set forth at length. 28. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. §3373 and 42 Pa. Consolidated Statute Annotated §8302. 29. The foregoing incident and the resulting fatal injuries sustained by the Decedent, are the direct and proximate result of willful, wanton, reckless and negligent behavior of the Defendant, Benjamin G. Ocker, which consisted of the following: A. Hosting a party with his parents' permission. B. Permitting alcoholic beverages to be served and consumed, although they knew or should have known that it would be served to minors, including Evan Spencer. . } J C. Facilitating the consumption of alcoholic beverages by minors. D. Intending to furnish, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. E. Furnishing, agreeing to furnish, or promoting the furnishing of alcohol to various minors, including Evan Spencer. 30. As a direct and proximate result of the aforesaid behavior of Defendant, Benjamin G. Ocker, the Defendant is liable for the following damages: A. Decedent's pain and suffering between the time of his injuries and the time of his death. B. Decedent's total estimated future earning power, less his estimated cost of personal maintenance. C. Decedent's loss of retirement and Social Security income. D. Decedent's other financial losses suffered as a result of his death. E. Decedent's loss of enjoyment of life. WHEREFORE, Plaintiff demands judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. s COUNT V WRONGFUL DEATH ACTION 31. Paragraphs 1 through 14 and 27 through 30 of the Complaint are incorporated herein by reference as though more fully set forth at length. 32. The Plaintiffs bring this action pursuant to Pennsylvania Wrongful Death Act, 42 Pa. Consolidated Statute Annotated §8301 and Pa. R.C.P. No. 2202(a). 33. The Decedent was survived by the Plaintiffs, who alone are entitled to recover damages for his death. 34. The Decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of the Decedent has been commenced against the Defendant. 35. As a direct and proximate result of the aforesaid behavior of the Defendant, the Plaintiffs suffered and the Defendant is liable for the following damages: A. Funeral expenses for the Decedent. B. Expenses of administration related to the Decedent's injuries and death. C. The Plaintiffs' deprivation and injury as a result 'of the loss of the support, comfort, counsel, aid, association, care and services of the Decedent. D. Such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COIINT VI PUNITIVE DAMAGES 36. Paragraphs 1 through 14 and 27 through 35 of the Complaint are incorporated herein by reference as though more fully set forth at length. 37. Defendant's, Benjamin G. Ocker, conduct of hosting a party without alcoholic beverages constitutes outrageous conduct and reckless indifference to the rights of other persons. Defendant knew or should have known that alcohol would be consumed by minors, creating a high risk to other persons. 38. Said conduct of Defendant constitutes wanton and willful negligence, is outrageous and entitles the Plaintiffs to an award of punitive damages. _~ i WHEREFORE, Plaintiffs demand judgment against the Defendant, Benjamin G. Ocker, for a sum in excess of $25,000.00, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, FRIEDMAN & KING, P.C. Date• ~ O~ .., 60 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 k/p:pleadings\stum.cmp r VERIFICATION I, Edward L. Stum, Administrator of the Estate of Eric E. Stum, and we, Edward L. Stum and Nancy E. Stum, individually, hereby acknowledge that we are the Plaintiffs in the foregoing action; that we have read the foregoing Complaint; and the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Edwa~tuministrator~~ of the Estate of Eric E. Stum ETdward L. S um C ~~-uf, Cam, «`~ Nancy Stum Dated: ~/^"''~~~~~~ .., ~ C/28'~ ~ ~~ ~i s THE ESTATE OF ERIC E. STUM, BY EDWARD L. STUM, ADMINISTRATOR, AND EDWARD L. STUM AND NANCEY E. STUM, INDIVIDUALLY Plaintiffs CIVIL ACTION -LAW DOCKET NO: 01-4123 v. GORDON OCKER AND DONNA . OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, Defendants JURY TRIAL DEMANDED BRIEF OF DEFENDANT, BENJAMIN G. OCKER, IN SUPPORT OF PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendant, Benjamin G. Ocker, by and through his attorneys, Marshall and Haddick, P.C., and Fles this Brief in support of his preliminary objections to Plaintiffs' Complaint. 1. FACTUAL AND PROCEDURAL HISTORY Plaintiffs initiated this lawsuit by filing a Complaint on or about June 29, 2001. Plaintiffs allege that on July 10, 1999, their decedent, Eric E. Stum, suffered injuries in an automobile accident which resulted in his death. See Plaintiffs' Complaint at paragraph 14. (A true and correct copy of Plaintiffs' Complaint is attached to Defendant's Preliminary Objections as Exhibit "A"). Plaintiffs allege that Benjamin Ocker held a party at his parents' residence, at s AUGD~200P~ ~(~ IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. -, ~, ~ y which Benjamin and other minors consumed alcoholic beverages. See paragraphs 8, 10 of Plaintiffs' Complaint. Plaintiffs seek damages from Benjamin G. Ocker on the theory that he hosted the party and furnished alcohol to Evan Spencer, the minor driver of the car in which Plaintiffs' decedent was a passenger at the time of the accident in question. Defendant, Benjamin G. Ocker, filed Preliminary Objections in the nature of a demurrer to Plaintiffs' Complaint. The basis of the demurrer is that Pennsylvania law does not permit a minor to be held liable under the doctrine of social host liability. In addition, Benjamin G. Ocker preliminarily objected to Plaintiffs' claim for punitive damages against him. Benjamin G. Ocker now files this Brief in support of his Preliminary Objections. II. ISSUES A. Is Plaintiffs' Complaint legally insufficient to state a claim against Benjamin G. Ocker because minors cannot be held liable under the doctrine of social host liability? Suggested Answer: Yes. B. Does Plaintiffs' Complaint fail to set forth a claim for punitive damages upon which relief may be granted? Suggested Answer: Yes. III. ARGUMENT 2 ., This Honorable Court should sustain preliminary objections in the nature of a demurrer where: the complaint is insufficient to establish the pleader's right to ~'elief.... For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts ... and every inference fairly :deducible from those facts.... [However], [t]he pleader's conclusions of law are not considered to be admitted as true by a demurrer. The County of Allegheny v. The Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985)(citations omitted). A. Plaintiffs' Complaint is legally insufficient to state a claim against Benjamin G. Ocker because minors may not be held liable under the doctrine of social host liability in this Commonwealth. 1. Social Host Liability The social host doctrine is a general phrase used to designate a claim in negligence against a person (the host) who provides alcoholic beverages to another (the guest), without remuneration, where the guest then sustains injuries, or causes injury to a third person as a result of his intoxicated condition. Kapres v. Heller, 536 Pa. 551, 640 A.2d 888, 889 footnote 1 (1994), citing Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983). A social host's liability for the acts of a drunken driver who leaves the host's home depends both on the age of the driver and of the host. In Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983) the Pennsylvania Supreme Court held that there can be no liability on the part of a social host who serves alcoholic 3 ~r beverages to his or her adult guests. The Court based its ruling on the great weight of authority which supports the view that it is the consumption of alcohol, rather than its furnishing, which is the proximate cause of any subsequent occurrence. On the same day that the Supreme Court announced the general rule of no liability for social hosts, it created an exception that applies in cases where an adult social host supplies alcohol to a minor. In Cognini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) the Court held that an adult social host was negligent per se in serving alcohol to the point of intoxication to a person less than twenty one years of age. However, as explained below, Cognini does not control this case. 2. Social Host Liability Does Not Apply to Minor Hosts In Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994) the Supreme Court held that a minor could not be held liable under the theory of social host liability. From the face of Plaintiffs' Complaint, it is clear that they seek to hold Benjamin G. Ocker, a minor, liable for furnishing alcohol to other minors. See Plaintiffs' Complaint. As such, Plaintiffs, have failed to state a claim against Benjamin G. Ocker. The Pennsylvania Supreme Court examined prior case law in rendering its decision in Kapres. The Kapres Court explained that the Cognini Court found that the rule of Klein, which places the responsibility upon an adult for the consequences of his or her own consumption of alcohol, does not apply in those situations where an adult furnishes alcohol to a minor. Kapres, 640 A.2d at 891. 4 v; The Court explained that the C nini exception was canned out on the basis that minors are judged to be incompetent to handle alcohol. Id. Thus, the Co nini Court recognized that public concerns for the safety of minors places a duty upon an adult to ensure that a minor is not furnished with alcohol. Id. However, the Kapres Court specifically rejected the argument that minor defendants should be held to the standards of adults as in Co nini. Id. The Supreme Court's decision in Kapres makes it clear that Cognini's limited exception applies only in those cases where an adult supplies alcohol to a minor. The Court stated that: [tJhe exception carved out in Cognini remains valid in those cases where ,an adult, who under the eyes of the law is presumed to know the effects of alcohol, furnishes alcohol to a minor, who is presumed under the law incompetent regarding the effects of alcohol. 640 A.2d at 891. The rule set forth in Kapres also applies to situations in which a minor who is supplied alcohol by another minor injures third parties. See Sperando v Commonwealth, Department of Transportation, 537 Pa. 352, 643 A.2d 1079 (1994), (applying law of Kapres v. Heller and reversing Commonwealth Court's decision that a minor was liable to a third person who was injured as a result of that minor's provision of alcohol to another minor). The law of the Commonwealth, as stated by the Pennsylvania Supreme Court, makes it clear that Benjamin G. Ocker was incompetent regarding the effects of alcohol on July 10, 1999. It is equally clear that by virtue of the fact that he was a minor at the time, Benjamin G. Ocker cannot be held liable for 5 } ~~ furnishing alcohol to other minors on July 10, 1999. The Plaintiffs' Complaint against Benjamin G. Ocker should therefore be dismissed with prejudice. B. Plaintiffs' Complaint fails to set forth a claim for punitive damages upon which relief may be granted. The Complaint before this Honorable Court contains a claim for punitive damages against Benjamin G. Ocker. See Plaintiffs' Complaint at Count VI. However, the facts alleged therein can not support such an award. First, Defendant Benjamin G. Ocker seeks the dismissal of Count VI of Plaintiffs' Complaint for failing to state a claim upon which relief can be granted. There is no independent cause of action for punitive damages recognized by the law of this Commonwealth. Secondly, with respect to any claim for punitive damages asserted against Defendant Benjamin G. Ocker by way of the remainder of the Complaint, this Court should strike same for legal insufficiency. Preliminarily, punitive damages are not available in a wrongful death action. Harvey v. Hassinger, 315 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983). Moreover, punitive damages are not recoverable in a survival action unless the decedent could have recovered them had he survived. Id. at 102, 461 A.2d at 816. With regard to whether the decedent could have recovered punitive damages in the instant case, the Pennsylvania Supreme Court has adopted Section 908(2) of the Restatement (Second) of Torts regarding liability for punitive damages. See, Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Under Section 908(2) punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to 6 , `~ the rights of others. The courts of this Commonwealth have repeatedly declared that the proper focus for determining whether a claim for punitive damages is justified is on the act of the defendant and not the result of that act. Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989); Trotman v. Mecchella, 421 Pa. Super. 620, 618 A.2d 982 (1992); Feid v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Punitive damages must be based on conduct that is malicious, wanton, reckless, willful, or oppressive. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). An assessment of the actor's state of mind is vital when determining whether an award of punitive damages is proper. Id. The act, or failure to act, must be intentional, reckless or malicious. Id. Punitive damages may not be awarded when there is no evidence of an evil motive or of reckless indifference and conscious disregard to the safety of others. Id. The Pennsylvania Supreme Court has looked to the Restatement for guidance in determining what type of behavior is "reckless" for the purpose of awarding punitive damages. See e.g. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). Section 500 of the Restatement states that: [t]he actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater that that which is necessary to make his conduct negligent. 7 ,, support a finding that Benjamin G. Ocker had reason to know of facts which create a high degree of risk of physical harm to the Plaintiffs' decedent, and deliberately proceeded to act, or failed to act, in conscious disregard of, or with indifference to, that risk. The mere fact that a danger should have been foreseen does not mean that the risk of danger was realized by the defendant to the extent necessary to show that degree of knowledge and the conscious disregard thereof needed for a finding of recklessness. It is not sufficient to allege that an objective person should have done more or that the defendant was negligent or even grossly negligent in participating or failing to stop a party whereat minors consumed alcohol to justify punitive damages. Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 655 A.2d 138 (1995), appeal granted in part, 679 A.2d 255, rev'd in part, 695 A.2d 397, reargument denied. Although Plaintiffs may have stated a claim for negligence, perhaps even gross negligence, against Benjamin G. Ocker (assuming that this Honorable Court were to find that he could be liable under the social host doctrine as a minor serving alcohol to another minor, which is denied), the Complaint is devoid of any facts to show that Benjamin G. Ocker acted with an evil intent towards the Plaintiffs' decedent. Likewise, the facts pled and the reasonable inferences arising there from cannot support a finding that Benjamin G. Ocker acted with the requisite maliciousness or reckless and conscious disregard for Plaintiffs' decedent's safety, As such, the Plaintiffs' claims for punitive damages against Benjamin G. Ocker should be dismissed with prejudice. 9 .r .a IV. CONCLUSION ~ r By the language of their Complaint, Plaintiffs seek to hold a minor liable under the social host doctrine. Under rule of Kapres, Benjamin G. Ocker was incompetent regarding the effects of alcohol on July 10, 1999 and was not subject to the duty Plaintiffs allege was breached. As such, Plaintiffs have failed to state a cause of action against Benjamin G. Ocker and their Complaint should be dismissed with prejudice. In the alternative, Count VI of Plaintiffs' Complaint, which attempts to set forth a claim against Benjamin G. Ocker for punitive damages, should be dismissed with prejudice as being legally insufficient. Respectfully submitted, Date: ~UV~ A,~ ?~}~ 2~~ MARSHALL & HnADDICK, P.C~/. CPiarles E. Haddick, Jr., Esquire Attorney I.D. No. 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66564 20 South 36~h Street Camp Hill, PA 17011 (717) 731-4800 Counsel for Qefendanf Benjamin G. Ocker 10 a. f x CERTIFICATE OF SERVICE AND NOW, this day of July, 2001, Lori Adamcik Kariss., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon afl counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 Lori Adamcik Kariss, Esquire 13 P:\User FoldeilPvm Docs\Wm~212].iNnswerwpd THE ESTATE OF ERIC E. STUM, by EDWARD L. STUM, Administrator, and EDWARD L. STUM and NANCY E. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STUM, Individually, Plaintiffs v. GORDON OCKER and DONNA OCKER, Husband and Wife, and BENJAMIN G. :CIVIL ACTION -LAW OCKER, Defendants v. EVAN SPENCER, ROBERT SPENCER and KIMBERLY A. RUDY and MARLIN RUDY, Additional Defendants NO.O1-4123 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF ADDITIONAL DEFENDANTS EVAN SPENCER and ROBERT SPENCER TO DEFENDANTS' COMPLAINT AND NOW, come the Additional Defendants, Evan Spencer and Robert Spencer, by their attorney, William A. Addams of the Law Office of Michael J. Hanft, and make the following answer to the Defendants' complaint against Additional Defendants: 1-7. Admitted. 8-14. It is admitted the pleadings make the allegations as stated. COUNTIandCOUNTII OCKERSv.RUDYS 15-20. The allegations of Paragraphs 15-20 are not applicable to the answering Additional Defendants. COUNT III OCKERS v. EVAN SPENCER 21. The answers to Paragraphs 1-20 are incorporated herein by reference. 22. Denied in accordance with Pa. R.C.P. 1029(e). 23. The conclusion of law is denied. WHEREFORE, the Additional Defendant requests Count III be dismissed. COUNT IV OCKERS v. EVAN SPENCER 24. The answers to Paragraphs 1-23 are incorporated herein by reference. 25. Admitted. 26. Admitted. 27. Denied as stated. Evan Spencer's date of birth is July 28, 1981. 28. The conclusion of law is denied. 29. Denied in accordance with Pa. R.C.P. 1029(e). 30. The conclusion of law is denied. 31. Denied in accordance with Pa. R.C.P. 1029(e). Robert Spencer did not lrnow Evan Spencer was using the automobile. 32. The conclusion of law is denied. 33. The conclusion of law is denied. WHEREFORE, the Additional Defendant requests Count IV be dismissed. NEW MATTER By way of further answer and defense the Additional Defendants assert the following in new matter: 34. The Additional Defendants, Evan and Robert Spencer, havesettledwiththePlaintiffs and have obtained and are protected by a release, a copy of which is attached as Exhibit "A". 35. The settlement was approved by the court by Order of January 19, 2000, a copy of which is attached as Exhibit "B". WHEREFORE, the Additional Defendants request that the complaint be dismissed. LAW OFFICE OF MICHAEL 7. HANFT By: / William ddams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Additional Defendants Aug, 29, 2001 7,50AM ONEBEACON Ins. Hbg, Pa, 17011 No, 0035 P, 2/5 RELEASE KNOW ALL MEN THAT WE, EDWARD L. STUM, individually, and NANCY E. STUM, individually, and EDWARD L. STUM as the Administrator of the Estate of Eric E. Stum, deceased, (hereinafter jointly referred to as "Releasors"), for and in consideration of Seventy Five Thousand (S`15,000.00) Dollars, the - receipt and sufficiency of which is hereby acknowledged, do hereby remise, release, and forever discharge EVAN R. SPENCER, JEANNINE SPENCER, ROBERT SPENCER, and their insurance carrier, CGU INSURANCE COMPANX, ("Releasees") together with all other persons or entities, both known and unknown, who are or subsequently may be determined to be liable for the claims referred to below (hereinafter referred to as "Releasees"), their heirs, executors, administrators, insurers, employees, successors, and assigns of and from all, and all manner of, actions and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or equity presently existing or subsequently discovered, especially those claims arising from an incident which occurred on or about Suly 10, 1999, which against the said Releasees we ever had, now have or which our heirs, executors, administrators, successors or assigns of any one of them, hereafter can, shall or may have for, or by reason of any cause, matter or thing whatsoever except for those actions, causes of action, suits, debts, dues, accounts, bonds, covenants, EXHIBIT "A" Aug, 29. 2001 7:51AM ONEBEACON Ins, Hbg, Pa, 17011 No, 0035 P. 3/5 agreements, judgments, rights, claims, demands, losses or expenses reserved herein. We specifically reserve our. continuing actions, causes pf action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, losses, expenses, claims, rights, and demands far underinsured motorist coverage or benefits against any insurer liable therefor. We do not intend by the signing of this release to give up any causes of action which we now have or which might accrue in the future against Mr. and Mrs. Marlin L. Rudy, Mr. and Mrs, Gordon Ocker, or any other individuals other than Releasees who may have furnished, or assisted in furnishing alcohol to said Evan R. Spencer on the day o£ the accident in question. We understand that said Releasees, by reason of agreeing to this compromise payment, admit no liability and all expressly deny liability of any sort, and said Releasees have made no agreement or promise to do or omit to do any act or thing not herein set forth, and we further understand that this Release is made as a compromise to avoid expense to terminate all controversy and(or claims for injuxies or damages of whatsoever nature, known or unknown, including future development thereof, in any way growing out of or connected with said claim, incident or contract of insurance. The terms of an prder of January 19, 2000, issued by the Honorable Edward E. Guido, Judge, docketed to number 2000-300 Civil Term in the matter of The Estate of Eric E. Stum, deceased, Au;. 29. 2001 7:51AM ONEBEACDN Ins, Hbg, Pa. 17011 No. 0035 P, 4/5 and Edward L. Stum, individually, and Nancy E. Stum, individually, versus Evan R. Spencex in the Court of Common Pleas, Cumberland County, Pennsylvania are incorporated herein by reference. It is also warranted by us that we have consulted legal counsel of our choosing concerning the terms of this agreement and that these texms have been explained to our satisfaction by our legal counsel. We warrant that there are no liens against the within Settlement. In the event any said liens are determined to exist, we will indemnify and hold harmless Releasees of and fxom any and all claims arising from said liens, said indemnification to include attorney's fees and costs. ' Aug, 29. 2001 7:51AM ONEBEACON ]ns. Hbg, Pa. 17011 ~~ - CAUTION: THIS IS A RELEASE READ HEFORE SIGNING No. 0035 P. 5/5 IN WITNESS WHEREOF, we have hereunto set our hands and seal this f`f~'~ day of ~1~+'"~ 2000. SIGNED, SEALER AND DELIVERED in the presence of: WITNESS ' ` WITN~, G'ribi G~~,'-.~ t~vv EDWARD L. STUM, individually NANCY STUM, Individually W~SS ~~~ ~ ~ EDWARD L. S nistrator of the Estate of Eric E. Stum SWORN TO AND SUHSCRISED BEFORE ME THIS /'f~ DAY OF /1'~t.c,~ 2000 My commis i~ O~~ir;~=,'` ~',,,;_W~.....:.. ka.mf:accident\stum.rel THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS DECEASED, AND EDWARD L. STUM, CUMBERLAND COUNTY, PENNSYLVANIA INDIVIDUALLY AND NANCY E. ~( STUM, INDIVIDUALLY, NO. aDGO - 30a l.lUc _17--~ PLAINTIFFS CIVIL ACTION - LAW v. EV:SN R. SPENCER, DEFENDANT ORDER And now, this 19 ~ day of 2000, upon consideration of the within Petition to Comp omise Action, it is ORDERED: 1. That settlement of all claims relating to the death of Eric E. Stum on July 10, 1999 against CGU Insurance Company, liability carrier for Robert Spencer and for Evan R. Spencer, Defendant; in a total amount of $75,000.00, is approved. 2. That settlement of al.l claims relating to the death of Eric E. Stum on July 10, 1999 against Erie Insurance Exchange, in its role as underinsurance motorist carrier for Edward L. and Nancy E. Stum, under policy number Q12 2201629 H, in a total amount of $200,000.00, is approved. 3. That said settlement in the amount of $275,0.00.00 shall be allocated and distributed as follows: a. To Friedman and King, P.C., reimbursement of costs, $380.38 b. To Friedman and King P.C., counsel fees, $ 68,750.00. c. Wrongful death claim~to Edward L. Stum and Nancy E. Stum, parents of the decedent, $102,934.81. EXHIBIT „Bn d. Survival, claim to Edward L. Stum, Administrator of the Estate of Eric E. Stum, deceased, $102,934.81. BY THE COURT: KA_mf.pleading\stum.ord TRUE COPY F4~.f)?~A Rif'^RD In Testimony whereof, I here into set my hand and the seal of said Court Carlisle, Pa. Th~..~.~~.....,/day/ of .. ... ~G ~S~ (~~~r~h~. ~ ~ti ~,L~Z J. ce~ui ~.,~... Prothonotary VERIFICATION Robert Spencer hereby verifies that the facts set forth in the foregoing Answer are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications DATE: ~ ~ / CERTIFICATE OF SERVICE I hereby certify that I have this 10`" day of September, 2001, served a copy of the Answer of Additional Defendants Spencer by mailing a copy of the same by United States mail, postage prepared, addressed as follows: Richard S. Friedman, Esquire Friedman & King, P.C. P.O. Box 984 Harrisburg, PA 17108 Attorney for Plaintiffs Lori Adamcik Kariss, Esquire MARSHALL & HADDICK, P.C. 20 South 36`" Street Camp Hill, PA 17011 Attorney for Defendants Ockers Karl R. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Attorney for Additional Defendant Kimberly Rudy ~' L(MM) ~ - ~ilticv~ C) c~7 T: r~ -tac N -*~ ,-'' ~; ~_ rn ~ t om ~ C N ---~ s ~ ~7 ~ SHERIFF'S RETURN - REGULAR CA~~E_NO: 2001-04123 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STUM ERIC E ESTATE OF ET AL VS OCKER CORDON ET AL SHAWN HARRISON ,.Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworh according to law, says, the within COMPLAINT & NOTICE was served upon RUDY KIMBERLY the ADD'L DEFENDANT, at 1905:00 HOURS, on the 7th day of September, 2001 at 1667 WALNUT BOTTOM ROAD NEWVILLE, PA 17241 KIMBERLY by handing to _ a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.10 Affidavit .00 Surcharge 10.00 .00 37.10 Sworn and Subscribed to before me this /a ~' day of Prothonotary So Answers: ~~~~% R. Thomas Kline 09/10/2001 MARSHALL FARRELL RICCI S ITH By: \ eput riff ,:, ; CASE NO: 2001-04123 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STUM ERIC E ESTATE OF ET AL VS OCKER GORDON ET AL SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RUDY MARLIN L the ADD'L DEFENDANT, at 1905:00 HOURS, on the 7th day of September, 2001 at 1667 WALNUT BOTTOM ROAD NEWVILLE, PA 17241 by handing to KIMBERLY WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this %d ~ day of ~,~,;, .,..~rc..~ atr0 ! A . D . ~~~ ~ ~aProthonot~-~ So Answers: .~ ~.~ R. Thomas Kline 09/10/2001 MARSHALL FARRELL RI CI SM H By: j D u e ff ~1r A ~a THE ESTATE OF ERIC E. STUM, IN THE COURT OF COMMON PLEAS BY EDWARD L. STUM, OF CUMBERLANb COUNTY, PENNA. ADMINISTRATOR, AND EDWARD L. STUM ANb NANCEY E. STUM, INDIVIpUALLY , CIVIL ACTION -LAW Plaintiffs v. bOCKET NO: 01.4123 Civil Term GORDON OCKER AND DONNA , OCKER, HUSBAND AND WIFE, and BENJAMIN G. OCKER, v. , EVAN SPENCER, ROBERT SPENCER, and KIMBERLY A. RUDY and MARLIN RUDY Defendants JURY TRIAL bEMANDED ACCEPTANCE OF SERVICE I accept service of the Joinder Complaint of defendant, Donna and Gordon Ocker and Benjamin G. Ocker, Against Additional Defendants, Evan Spencer, Robert Spencer and Kimberly A. Rudy on behalf of Additional lefendants Evan and Robert Spencer and certify that I am authorized to do so. Dated: 9/21/01 ~Iliam Ad ~ ams, Attorney for Evan and Robert Spencer Z00/Z00 ~ n~TPP~Ii'8ii~ug~~rd C08fiiCL %V3 iV~OT i00Z/80/OT CERTIFICATE OF SERVICE AND NOW, this ~ day of October, 2000, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: Richard S. Friedman, Esquire 600 North Second Street P.O. Box 984 Harrisburg, Pa 17108 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 ~~ Charles E. Haddick, Jr., Esquire