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Home My WebLink About03-2479WHITE AND WILLIAMS LLP By: John P. Encamacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. (~¢'-o~47q ~J~c~ NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER 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, Pennsylvania (717) 249-3166 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las p~tginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Hate falta asentar una comparesencia es§rita o en persona o con un abogado y entregar a 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 tomar,'i medidas y puede continuar la demanda en contra suya sin previo aviso o notificaci6n. Adem~is, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisienes de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos improtantes 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 TELI~FONO A LA OFICINA CUYA DIRECCI(~)N SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania (717) 249-3166 DOCS_PH 1425013vl WHITE AND WILLIAMS LLP By: John P. Encamacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED COMPLAINT Plaintiff Maryland Casualty Company aYs/o Larry Adams d/b/a Larry Adams Well Drilling, through its attorneys, for its Complaint against Wayne E. Smith d/b/a Smitty's Excavating, states as follows: 1. Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling ("Maryland Casualty") is a Maryland corporation with its principal place of business in Schaumburg, Illinois. At all times relevant, Maryland Casualty was duly authorized to engage in the business of issuing policies of insurance throughout the United States, including the Commonwealth of Pennsylvania. 2. Upon information and belief, Defendant Wayne E. Smith d/b/a Smitty's Excavating is an adult individual who resides at 1310 Pine Road, Carlisle, Pennsylvania. Upon DOCS_PH 1425013vl information and belief, Smith engaged in business in Pennsylvania as a company named Smitty's Excavating ("Smitty's"), which was in the business of providing excavating services. 3. Maryland Casualty issued an insurance policy, No. SCP 37870053 (the "Policy"), to Larry G. Adams d/b/a Larry Adams Well Drilling ("Adams Well Drilling"), for the period of April l, 2001 to April l, 2002. The policy provided coverage for Adams Well Drilling's drill units while providing drilling services in Pennsylvania. 4. In or about May 2001, Yanek Custom Homes ("Yanek") retained Adams Well Drilling to perform well drilling services for a development in Dillsburg, Pennsylvania. Yanek was previously hired by the property owners, James and Sharon Wang, to build a custom home. 5. For the project to build a custom home for the Wangs, Yanek also retained Smitty's to perform excavation work. 6. Prior to or on May 25, 2001, Smitty's performed excavation work on the foundation of the Wangs' house. Upon information and belief, Smitty's discovered the existence of a sinkhole, multiple sinkholes or a sinkhole system on the Wangs' property. 7. On or about May 25, 2001, Adams Well Drilling was using a drill unit to drill a well on the Wangs' property. While drilling the well, a sinkhole opened under the drill unit, causing it to overturn and damage Adams Well Drilling's property. 8. Prior to the damage to Adams Well Drilling's property, Smitty's never informed Adams Well Drilling of the existence of the sinkhole, sinkholes or a sinkhole system on the Wangs' property. 9. Adams Well Drilling submitted a claim to Maryland Casualty for $51,001.25, which honored the claim and made payments to and on behalf of its insured. Of this amount, Adams Well Drilling was responsible for a $500.00 deductible. Maryland Casualty is now -2- DOCS_PH 1425013vl subrogated to any claims Adams Well Drilling may have against third parties, including Smitty's, to the extent of its payments. COUNT I - NEGLIGENCE 10. Plaintiff incorporates the allegations contained in paragraphs 1 through 9 as if set forth at length. 11. Smitty's, directly and through its employees, agents, servants and/or workmen, owed a duty of due care to Adams Well Drilling, which included, but was not necessarily limited to, the following: (a) (h) Using reasonable and due care while excavating the Wangs' property; Not creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Informing Adams Well Drilling of any geological hazards discovered during excavation; (d) Abiding by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence of a sinkhole, sinkholes or a sinkhole system in the area; and (e) Complying with all applicable statutes, codes, regulations and generally recognized safety practices and standards. 12. Smitty's, directly and through its employees, agents, servants and/or workmen, negligently, carelessly and/or recklessly breach its duty of due care to Adams Well Drilling in one or more of the following ways: (a) Failing to use reasonable and due care while excavating the Wangs' property; -3- DOCS_PH 1425013vl (b) Creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Failing to inform Adams Well Drilling of any geological hazards discovered during excavation; (d) Failing to abide by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence of a sinkhole, sinkholes or a sinkhole system in the area; (e) Failing to comply with all applicable statutes, codes, regulations and generally recognized safety practices and standards; and (f) Such other acts of negligence as may be revealed in discovery. 13. Smitty's negligence, directly and through its employees, agents, servants and/or workmen, was a direct and proximate cause of the May 25, 2001 damage and subsequent costs to Adams Well Drilling's property. WHEREFORE, Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, hereby demands judgment against Defendant Wayne E. Smith d/b/a Smitty's Excavating for $51,001.25, together with interest, attorney fees, and costs of suit. Date: 5/23/03 BY: Respectfully submitted, WI-IITE AND WlLL~[AMS LLP JOI-~P. ENCARNA~, ESQUIRE -4- DOCS_PH 1425013vl VERIFICATION Craig Brozina, a representative of plaintiff Maryland Casualty Company in the foregoing matter, hereby verifies that the facts contained in the foregoing complaint are true and correct to the best of my knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa.R.C.S. § 4904 relating to unswom falsification to authorities. Dated: 5/23/03 Craig Brozina DOCS PH 1425013vl VERIFICATIO~ Craig Brozina, a representative of plaintiff Maryl~d Casualty Company in the foregoing matter, hereby verifies that the facts contained in the forego/rig complaint are true and correct to the best of my knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa.R.C.S. § 4904 relating to unswom falsification to authorities. Dated: 5/23/03 Craig B~a / / 142.5013 vi SHERIFF'S RETURN - CASE NO: 2003-02479 P COMMONWEALTH OF PENNSYLVANIA: COI/NTY OF CUMBERLAND MARYLAND CASUALTY COMPANY ETAL VS SMITH WAYNE E DBA SMITTY'S EXC REGULAR DAWN KELL , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE SMITH WAYNE E DBA SMITTY'S EXCAVATING DEFENDANT , at 2020:00 HOURS, on the at 1310 PINE ROAD CARLISLE, PA 17013 MISTY TOLLEY, GIRLFRIEND, a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 9th day of June , 2003 by handing to ADULT IN CHARGE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 5.52 Affidavit .00 Surcharge 10.00 .00 33.52 Sworn and Subscribed to before me this ~ ~ day of ~ ~P~ A,D. Prothonotary ' So Answers: R. Thomas Kline 06/10/2003 WHITE AND WILLIAMS Deputy Sheriff MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant : PRAECIPE TO THE PROTHONOTARY: : COURT OF COMMON PLEAS : CUMBERLAND COUNTY : : JURY TRIAL DEMANDED : NO. 03-2479 CIVIL ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendant Wayne E. Smith D/B/A Smitty's Excavating, in the above-captioned matter. Date: Respectfully submitted, ~squire CIATES (~~_ _ ~ _ _ IE~ASSOC Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 CIVIL PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Wayne E. Smith, D/B/A Smitty's Excavating, by and through his counsel of record, Bradley L. Griffie, Esquire, and files the following objections to Plaintiff's Complaint: 1. Plaintiff's Complaint fails to state, with sufficient specificity, the exact time and date in which Defendant is alleged to have preformed excavating work on the foundation of the property at issue. 2. The allegation that "prior to or on May 25, 2001," lacks sufficient specificity to allow Defendant to respond to the allegations and determine or develop an appropriate defense. 3. Plaintiff's Complaint fails to provide sufficient specificity as to when Defendant was to have performed the work alleged in the Complaint and was to have discovered the existence of sink holes, so as to allow Defendant to secure appropriate insurance coverage relative to the action and prepare an appropriate defense. WHEREFORE, Petitioner requests your Honorable Court to dismiss Plaintiff's Complaint for failure to provide sufficient specificity on which to base its claim. Respectfully submitted, aEsquire nt IATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 MARYLAND CASUALTY COMPANY 3dS/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 CIVIL .CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire, hereby certify that I did, the ~C~day of July, 2003, cause a copy of Preliminary Objections of Defendant to Plaintiff's Complaint to be served upon PlaintiWs attorney of record by facsimile and first class mail, postage prepaid at the following addresses: John P. Encamacion, Esquire WHITE AND WILLIAMS LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 ~'-~A*~r6rne3/for Defee~ EdnqTire GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717)243 -5551 (800)347-5552 WHITE AND WILLIAMS LLP By: John P. Encarnacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 PLAINTIFF MARYLAND CASUALTY COMPANY A/S/O LARRY ADAMS D/B/A LARRY ADAMS WELL DRILLING'S AMENDED COMPLAINT Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, through its attorneys, for its Amended Complaint against Wayne E. Smith dPo/a Smitty's Excavating, states as follows: 1. Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling ("Maryland Casualty") is a Maryland corporation with its principal place of business in Schaumburg, Illinois. At all times relevant, Maryland Casualty was duly authorized to engage in the business of issuing policies of insurance throughout the United States, including the Commonwealth of Pennsylvania. 2. Upon information and belief, Defendant Wayne E. Smith d/b/a Smitty's Excavating is an adult individual who resides at 1310 Pine Road, Carlisle, Pennsylvania. Upon DOCS_PH 1451801vl information and belief, Smith engaged in business in Pennsylvania as a company named Smitty's Excavating ("Smitty's"), which was in the business of providing excavating services. 3. Maryland Casualty issued an insurance policy, No. SCP 37870053 (the "Policy"), to Larry G. Adams d/b/a Larry Adams Well Drilling ("Adams Well Drilling"), for the period of April 1, 2001 to April 1, 2002. The policy provided coverage for Adams Well Drilling's drill units while providing drilling services in Pennsylvania. 4. In or about May 2001, Yanek Custom Homes ("Yanek") retained Adams Well Drilling to perform well drilling services for a development in Dillsburg, Pennsylvania. Yanek was previously hired by the property owners, James and Sharon Wang, to build a custom home. 5. For the project to build a custom home for the Wangs, Yanek also retained Smitty's to perform excavation work. 6. Prior to May 22, 2001, Smitty's performed excavation work on the foundation of the Wangs' house. Upon information and belief, Smitty's discovered the existence ora sinkhole, multiple sinkholes or a sinkhole system on the Wangs' property. 7. On or about May 25, 2001, Adams Well Drilling was using a drill unit to drill a well on the Wangs' property. While drilling the well, a sinkhole opened under the drill unit, causing it to overturn and damage Adams Well Drilling's property. 8. Prior to the damage to Adams Well Drilling's property, Smitty's never informed Adams Well Drilling of the existence of the sinkhole, sinkholes or a sinkhole system on the Wangs' property. 9. Adams Well Drilling submitted a claim to Maryland Casualty for $51,001.25, which honored the claim and made payments to and on behalf of its insured. Of this amount, Adams Well Drilling was responsible for a $500.00 deductible. Maryland Casualty is now -2- DOCS_PH 1451801vl subrogated to any claims Adams Well Drilling may have against third parties, including Smitty's, to the extent of its payments. .COUNT I - NEGLIGENCE 10. Plaintiff incorporates the allegations contained in paragraphs 1 through 9 as if set £orth at length. 11. Smitty's, directly and through its employees, agents, servants and/or workmen, owed a duty of due care to Adams Well Drilling, which included, but was not necessarily limited to, the following: (a) Using reasonable and due care while excavating the Wangs' property; (b) Not creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Informing Adams Well Drilling of any geological hazards discovered during excavation; (d) Abiding by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence ora sinkhole, sinkholes or a sinkhole system in the area; and (e) Complying with all applicable statutes, codes, regulations and generally recognized safety practices and standards. 12. Smitty's, directly and through its employees, agents, servants and/or workmen, negligently, carelessly and/or recklessly breach its duty of due care to Adams Well Drilling in one or more of the following ways: (a) Failing to use reasonable and due care while excavating the Wangs' property; -3- DOCS_PH 1451801vl (b) Creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Failing to inform Adams Well Drilling of any geological hazards discovered during excavation; (d) Failing to abide by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence of a sinkhole, sinkholes or a sinkhole system in the area; (e) Failing to comply with all applicable statutes, codes, regulations and generally recognized safety practices and standards; and (f) Such other acts of negligence as may be revealed in discovery. 13. Smitty's negligence, directly and through its employees, agents, servants and/or workmen, was a direct and proximate cause of the May 25, 2001 damage and subsequent costs to Adams Well Drilling's property. WHEREFORE, Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, hereby demands judgment against Defendant Wayne E. Smith d/b/a Smitty's Excavating for $51,001.25, together with interest, attorney fees, and costs of suit. Respectfully submitted, WHITE AND WILLIAMS LLP J OH~i~. ENC~NA~-~~ U~IRE Date: 7/21/03 -4- DOCS_PH 1451801vl Dated: 7/18/03 VERIFICATION Craig Brozina, a representative ofplaintiffMaryland Casualty Company in the foregoing matter, hereby verifies that the facts contained in the foregoing amended complaint are tree and correct to the best of my knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa.R.C.S. § 4904 relating to unswom falsification to authorities. DOCS_PH 1451 g01 vi CERTIFICATE OF SERVICE The undersigned hereby certifies that a tree and correct copy of the within AMENDED COMPLAINT AND VERIFICATION directed to defendant, was served via U.S. Mail, postage prepaid, on the date listed below to the following: Bradley L. Griffie, Esquire Griffie& Associates Attomey and Counselors at Law 200 North Hanover Street Carlisle, PA 17013 Dated: amacion, Esquire -6- DOCS_PHI45180Ivl MARYLAND CASUALTY COMPANY a/fro LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 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 fuxther notice for any money claimed in the complaint or for any other claim or relief requested by the Defendant. You may loose 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 Two Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 COMPLAINT AGAINST ADDITIONAL DEFENDANT HOOVERS ENGINEERING AND NOW, comes Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, by and through his counsel of record, Bradley L. Griffie, Esquire, and states: Defendant, Wayne E. Smith, dgo/a Smitty's Excavating, (hereinafter "Smith") is an adult individual residing at 1310 Pine Road, Carlisle, Cumberland County, Pennsylvania. Additional Defendant, Hoover Engineering, Inc',. (hereinafter "Hoover") is a Pennsylvania Corporation organized and existing under the law of the Commonwealth of Pennsylvania with a business address of 658 Gaumer Road, New Cumberland, York County, Pennsylvania. In April and May 2001, Hoover was engaged in the development of a tract of land located in Monroe Township, Cumberland County, Pennsylvania. Smith performed excavating services on the property owned by James and Sharon Wang which is located in the aforementioned development. On or about, July 21, 2003, Plaintiff, Maryland Casualty Company, (hereinafter referred to as Maryland) a/s/o Larry G. Adams, d/b/a Larry Adams Well Drilling, filed an Amended Complaint, which Amended Complaint was served upon counsel of record for Smith on August 25, 2003. The aforesaid Amended Complaint demands the recovery of damages against Smith in the amount of $51,001.25, together with interests, attorney's fees, and costs of suit. An Answer has been filed to the Amended Compliant by Smith denying any liability in this matter and demanding judgment against Maryland. Hoover is jointly and severally liable with Smith rm Maryland's cause of action, if any liability exists. If it is judicially determined that Smith is liable for any sums due to Maryland, then it is averred that Hoover is liable to Smith for indemnification or contribution, any and all liability on the part of Smith being expressly denied. 10. Pursuant to Pennsylvania Rules of Civil Procedure Number 425(e), a copy of the Amended Complaint filed in this action is attached hereto and made a part hereof as Exhibit "A." 11. At all time relevant to the issues raised in the Amended Complaint, Hoover was aware that sinkholes, a sinkhole system or other geological hazards existed in the development wherein the Wang property was located and upon which Smith, Additional Defendant Larry G. Adams, d/b/a Larry Adams Well Drilling (hereinafter referred to as "Adams"), and Additional Defandant Yanek Homes (hereinafter referred to as "Yanek") performed services in the construction of the Wang home. 12. Hoover owed a duty of care to Smith, Adams and Yanek to provide information available to them relative to the geological conditions and hazards in the development and on the Wang property. 13. Hoover failed to provide information relative to the sinkholes, sinkhole system, or other geological hazards that existed in the developraent and on the Wang property to Smith, Adams and Yanek, despite the fact that the lack of this knowledge could create injury or damages to Smith, Adams and/or Yanek. 14. Hoover was negligent, directly or through its agents, employees, servants, workmen and other representatives for failing to provide such information, and such negligence was a direct and approximate cause of the May 2:5, 2001, damage and subsequent losses to Adams as set forth in Plaintiffs' Complaint. VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. DATE: d/b/a SMITTY'S EXCAVATING WHITE AND WILLIAMS LLP By: John P. Encarnacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY cOMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COUYRT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 PLAINTIFF MARYLAND CASUALTY COMPANY A/S/O LARRY ADAMS D/B/A LARRY ADAMS Wl~,I.I, DRII J,ING'S AMENDED COMPLAINT Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, through its attorneys, for its Amended Complaint against Wayne E. Smith d/b/a Smitty's Excavating, states as follows: 1. Plaintiff Maryland Casualty Company a/s/o Lan'y Adams d/b/a Larry Adams Well Drilling ("Maryland Casualty") is a Maryland corporation with its principal place of business in Schaumburg, Illinois. At all times relevant, Maryland Casualty was duly authorized to engage in the business of issuing policies of insurance throughout the United States, including the Commonwealth of Pennsylvania. 2. Upon information and belief, Defendant Wayne E- Smith d/b/a Smitty's Excavating is. an adult individual who resides at 1310 Pine Road, Carlisle, Pennsylvania. Upon DOCS_PH 1451801vl EXHIBIT "A" information and belief, Smith engaged in business in Pennsylvania as a company named Smitty's Excavating ("Smitty's"), which was in the business of providing excavating services. 3. Maryland Casualty issued an insurance policy, No. SCP 37870053 (the "Policy"), to Larry G. Adams d/b/a Larry Adams Well Drilling ("Adams Well Drilling"), for the period of April 1, 2001 to April 1, 2002. The policy provided coverage for Adams Well Drilling's drill uaits while providing drilling services in Pennsylvania. 4. In or about May 2001, Yanek Custom Homes ("Yanek") retained Adams Well Drilling to perform well drilling services for a development in Dillsburg, Pennsylvania. Yanek was previously hired by the property owners, James and Sharon Wang, to build a custom home. 5. For the project to build a custom home for the W:mgs, Yanek also retained Smitty's to perform excavation work. 6. Prior to May 22, 2001, Smitty's performed excavation work on the foundation of · the Wangs' house. Upon information and belief, Smitty's discovered the existence of a sinldmle, multiple sinkholes or a sinkhole system on the Wangs' property. 7. On or about May 25, 2001, Adams Well Drilling was using a drill unit to drill a well on the Wangs' property. While drilling the well, a sinkhole opened under the drill unit, causing it to overturn and damage Adams Well Drilling's property. 8. Prior to the damage to Adams Well Drilling's property, Smitty's never informed Adams Well Drilling of the existence of the sinkhole, sinkholes or a sinkhole system on the Wangs' property. 9. Adams Well Drilling submitted a claim to MaD,land Casualty for $51,001.25, which honored the claim and made payments to and on behalf of its insured. Of this amount, Adams Well Drilling was responsible for a $500.00 deductible:. Maryland Casualty is now DOCS_PH 1451801vl -2- VERIFICATION Craig Brozina, a representative of plaintiffMaryland Cm;ualty Company in the foregoing matter, hereby verifies that the facts contained in the foregoing anaended complaint are true and correct to the best of my -knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa.R.C.S. § 4904 relating to unswom falsification to authorities. Craig B~na Dated: 7/18/03 DOCS_PH/45180Ivl CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct cc,py of the within AMENDED COMPLAINT AND VERIFICATION directed to defendant, was served via U.S. Mail, postage prepaid, on the date listed below to the following: Bradley L. Griffie, Esquire Griffie& Associates Attorney and Counselors at Law 200 North Hanover Street Carlisle, PA 17013 Dated: John l, rEncarnacion, Esquire DOCS_PH 145/801vl -6- MARYLAND CASUALTY COMPANY : a/s/o LARRY G. ADAMS d/b/a LARRY : ADAMS WELL DRILLING, : Plaintiff WAYNE E. SMITH dPo/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS : REALTY GROUP, LTD., LARRY G. : ADAMS d/b/a/LARRY ADAMS WELL : DRILLING and YANEK HOMES, : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Defendant. You may loose 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 Two Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 MARYLAND CASUALTY COMPANY a/fro LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH dPo/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 COMPLAINT AGAINST ADDITIONAL DEFENDANT BROKERS REALTY GROUP~ LTD. AND NOW, comes Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, by and through his counsel of record, Bradley L. Griffie, Esquire, and :states: Defendant, Wayne E. Smith, dgo/a Smitty's Excavating, (hereinafter "Smith") is an adult individual residing at 1310 Pine Road, Carlisle, Cumberland County, Pennsylvania. Additional Defendant, Brokers Realty Group, Ltd., t/d/b/a Brokersrealty.com (hereinafter "Brokers Realty") is a Pennsylvania Corporation organized and existing under the law of the Commonwealth of Pennsylvania with a business address of 310 Third Street, New Cumberland, Cumberland County, Pennsylvania. In April and May 2001, Brokers Realty was engaged in the development of a tract of land located in Monroe Township, Cumberland County, Pennsylvania, or in the listing and selling of the tracts of land with said development on third parties. Smith performed excavating services on the property owned by James and Sharon Wang, which is located in the aforementioned development. On or about, July 21, 2003, Plaintiff, Maryland Casualty Company, (hereinafter referred to as Maryland) a/s/o Larry G. Adams, d/b/a Larry Adams Well Drilling, filed an Amended Complaint, which Amended Complaint was served upon counsel of record for Smith on August 25, 2003. The aforesaid Amended Complaint demands the recovery of damages against Smith in the amount of $51,001.25, together with interests,, attorney's fees, and costs of suit. An Answer has been filed to the Amended Compliant by Smith denying any liability in this matter and demanding judgment against MaD, land. o Brokers Realty is jointly and severally liable witl~ Smith on Maryland's cause of action, if any liability exists. o If it is judicially determined that Smith is liable for ~my sums due to Maryland, then it is averred that Brokers Realty is liable to Smith for indemnification or contribution, any and all liability on the part of Smith being expressly denied. 10. 11. 12. 13. 14. Pursuant to Pennsylvania Rules of Civil Procedm'e Number 425(e), a copy of the Amended Complaint filed in this action is attached hereto and made a part hereof as Exhibit "A." At all time relevant to the issues raised in the Amended Complaint, Brokers Realty was aware that sinkholes, a sinkhole system or other geological hazards existed in the development wherein the Wang property was located and upon which Smith, Additional Defendant Larry G. Adams, d/b/a Larry Adams Well Drilling (hereinafter referred to as "Adams"), Additional Defendant Hoovers Engineering, Inc. (hereinafter referred to as "Hoover") and Additional Defendant Yanek Homes (hereinafter referred to as "Yanek") performed services in the ce.nstruction of the Wang home. Brokers Realty owed a duty of care to Smith, Adams, and Yanek to provide information available to them relative to the geological conditions and hazards in the development and on the Wang property. Brokers Realty failed to provide information relative to the sinkholes, sinkhole system, or other geological hazards that existed in the development and on the Wang property to Smith, Adams, and Yanek, despite the fitct that the lack of this knowledge could create injury or damages to Smith, Adams, Hoover and/or Yanek. Brokers Realty was negligent, directly or through its agents, employees, servants, workmen and other representatives for failing to provide such information, and such negligence was a direct and approximate cause of the May 25, 2001, damage and subsequent losses to Adams as set forth in Plaintiffs" Complaint. WHEREFORE, Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, demands judgment against Additional Defendant Brokers Realty for $51,001.25 together with interest, attorneys fees and costs or in an amount equal to the judgment ,entered against Defendant, Wayne E. Smith, d/b/a Smitty's Excavating upon Plaintiff's Complaint. Respectfully subn:dtted, ; EdaSnqtUire GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I verify that the statements made in the foregoing document are tree and correct. I understand that false statements herein are made subject to the; penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. DATE: WXYNE"I~. SMITH d/b/a SMITTY'S EXCAVATING WHITE AND WILLIAMS LLP By: John P. Encamacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LAP,-RY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 PLAINTIFF MARYLAND CASUALTY COMPANY 3dS/O LARRY ADAMS D/B/A LARRY ADA1VIS WF, 1,1, DRII I,ING'S AIM[ENDED COMPLAINT Plaintiff Maryland Casualty Company a/s/o Larry Adan:s dfo/a Larry Adams Well Drilling, through its attorneys, for its Amended Complaint against Wayne E. Smith d/b/a Smitty's Excavating, states as follows: 1. Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling ("Maryland Casualty") is a Maryland corporation with its principal place of business in Schaumburg, Illinois. At all times relevant, Maryland Casualty was duly authorized to engage in the business of issuing policies of insurance throughout the United States, including the Commonwealth of Pennsylvania. 2. Upon information and belief, Defendant Wayne E. Smith d/b/a Smitty's Excavating is. an adult individual who resides at 1310 Pine Read, Carlisle, Pennsylvania. Upon DOCS_PH 1451801vl EXHIBIT "A" information and belief, Smith engaged in business in Pennsylvania as a company nmned Smitty's Excavating ("Smitty's"), which was in tile business of providing excavating services. 3. Maryland Casualty issued an insurance policy, No. SCP 37870053 (the "Policy"), to Larry G. Adams d/b/a Larry Adams Well Drilling ("Adams Well Drilling"), for tile period of April 1, 2001 to April 1,2002. The policy provided coverage for Adams Well Drilling's drill units while providing drilling services in Pennsylvania. 4. In or about May 2001, Yanek Custom Homes ("Yanek") retained Adams Well Drilling to perform well drilling services for a development in Dillsburg, Pennsylvania. Yanek was previously hired by the property owners, James and Sharon Wang, to build a custom home. 5. For the project to build a custom home for the Wangs, Yanek also retained Smitty's to perform excavation work. 6. Prior to May 22, 2001, Smitty's performed excavation work on the foundation of the Wangs' house. Upon information and belief, Smitty's discovered the existence of a sinkhole, multiple sinkholes or a sinkhole system on the Wangs' property. 7. On or about May 25, 2001, Adams Well Drilling was using a drill unit to drill a well on the Wangs' property. While drilling the well, a sinkhole opened under the drill unit, causing it to overturn and damage Adams Well Drilling's property. 8. Prior to the damage to Adams Well Drilling's property, Smitty's never informed Adams Well Drilling of the existence of the sinkhole, sinkholes or a sinkhole system on the Wangs' property. 9. Adams Well Drilling submitted a claim to MaEdand Casualty for $51,001.25, which honored the claim and made payments to and on behalf of its insured. Of this amount, Adams Well Drilling was responsible for a $500.00 deductible. Maryland Casualty is now -2- DOCS_PH 1451801vl subrogated to any claims Adams Well Drilling may have against third parties, including Smitty's, to the extent of its payments. COUNT I - NEGLIGENCE 10. Plaintiffincorporates the allegations contained in paragraphs 1 through 9 as if set forth at length. 1 I. Smitty's, directly and through its employees, agents, servants and/or workmen, owed a duty of due care to Adams Well Drilling, which included, but was not necessarily limited to, the following: (a) (b) Using reasonable and due care while excavating the Wangs' property; Not creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Informing Adams Well Drilling of any geological hazards discovered during excavation; (d) Abiding by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence ora sinkhole, sinkholes or a sinkhole system in the area; and (e) Complying with all applicable statutes, codes, regulations and generally recognized safety practices and standards. 12. Smitty's, directly and through its employees, agents, servants and/or workmen, negligently, carelessly and/or recklessly breach its duty of due care to Adams Well Drilling in one or more of the following ways: (a) Failing to use reasonable and due care while excavating the Wangs' property; DOCS_PH 1451801vl -3- (b) Creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Failing to inform Adams Well Drilling of any geological hazards discovered during excavation; (d) Failing to abide by current standards of civil engineering practice and building constraction with regard to informing Adams Well Drilling of the presence of a sinkhole, sinkholes or a sinl~hote system in the area; (e) Failing to comply with all applicable statates, codes, regulations and generally recogrfized safety practices and standards; and (f) Such other acts of negligence as may be revealed in discovery. 13. Smitty's negligence, directly and through its employees, agents, servants and/or workmen, was a direct and proximate cause of the May 25, 2001 damage and subsequent costs to Adams Well Drilling's property. W-HEREFOP~, Plaintiff Maryland Casualty Company a]s/o Larry Adams d/b/a Larry Adams Well Drilling, hereby demands judgment against Defendant Wayne E. Smith d/b/a Smitty's Excavating for $51,001.25, together with interest, attorney fees, and costs of suit. Respectfully submitted, VCltITE ,MND WILLIAMS LLP JO~"P. EN~AC'~q'7'E~QU~ Date: 7/21/03 DOCS_PH 1451501vl -4- VERIFICATION Craig Brozina, a representative of plaintiff Maryland Casualty Company in the foregoing matter, hereby verifies that the facts contained in the foregoing amended complaint are true and correct to the best of my knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa.R.C.S. § 4904 relating to unsworn f~lsification to authorities. Crag Br~x~na Dated: 7/18/03 DOCS_PH 1451801vl CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within AMENDED COMPLAINT AND VERIFICATION directed to defendant, was served via U.S. Mail, postage prepaid, on the date listed below to the following: Bradley L. Griffie, Esquire Gfiffie& Associates Attorney and Counselors at Law 200 North Hanover Street Carlisle, PA 17013 Dated: Job. rt~ Encarnacion, Esquire DOCS?H 1451801vl -6- MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : JURY TRIAL DEMANDED : NO. 03-2479 NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Defendant. You may loose 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 Two Liberty Avenue Carlisle, Pennsylvania 1701:3 (717) 249-3166 MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH dJb/a SMITTY'S EXCAVATING, Defendant V4 HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 COMPLAINT AGAINS'r ADDITIONAL DEFENDANT LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING AND NOW, comes Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, by and through his counsel of record, Bradley L. Griffie, Esquire, and states: Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, (hereinafter "Smith") is an adult individual residing at 1310 Pine Road, Carlisle, Cumberland County, Pennsylvania. Additional Defendant, Larry G. Adams, dPo/a Lan3, Adams Well Drilling, is an adult individual currently residing at 3430 Waggoners Gap Road, Carlisle, Cumberland County, Pennsylvania, (hereinafter referred to as "Adams"). In April and May 2001, Adams was engaged in business of drilling wells for new homes in development of a tract of land located irt Monroe Township, Cumberland County, Pennsylvania. Smith performed excavating services on the property owned by James and Sharon Wang, which is located in the aforementioned development. On or about, July 21, 2003, Plaintiff, Maryland Casualty Company, (hereinafter referred to as Maryland) a/s/o Larry G. Adams, d/b/a Larry Adams Well Drilling, filed an Amended Complaint, which Amended Complaint was served upon counsel of record for Smith on August 25, 2003. o The aforesaid Amended Complaint demands the recovery of damages against Smith in the amount of $51,001.25, together with interests, attorney's fees, and costs of suit. An Answer has been filed to the Amended Compliant by Smith denying any liability in this matter and demanding judgment against Maryland. Adams is jointly and severally liable with Smith on Maryland's cause of action, if any liability exists. If it is judicially determined that Smith is liable for any sums due to Maryland, then it is averred that Adams is liable to Smith for indenmification or contribution, any and all liability on the part of Smith being expressly denied. 10. Pursuant to Pennsylvania Rules of Civil Procedure Number 425(e), a copy of the Amended Complaint filed in this action is attached hereto and made a part hereof as Exhibit "A." 11. At all time relevant to the issues raised in the Amended Complaint, Adams was aware that sinkholes, a sinkhole system or other geological hazards existed in the development wherein the Wang property was located and upon which Smith, and Additional Defendant Yanek Homes (hereinafter referred to as "Yanek") performed services in the construction of the Wang home. 12. Adams owed a duty of care to Smith and Yanek to, provide information available to them relative to the geological conditions and hazards in the development and on the Wang property. 13. Adams failed to provide information relative to the sinkholes, sinkhole system, or other geological hazards that existed in the development and on the Wang property to Smith and Yanek despite the fact that the lack of this knowledge could create injury or damages to Smith and/or Yanek. 14. Adams was negligent, directly or through its agents, employees, servants, workmen and other representatives for failing to provide such information, and such negligence was a direct and approximate cause of the May 25, 2001, damage and subsequent losses to Adams as set forth in Plaintiffs' Complaint. WHEREFORE, Defendant, Wayne E. Smith, dPo/a Smitty's Excavating, demands judgment against Additional Defendant Adams for $51,001.25 together with interest, attorneys fees and costs or in an amount equal to the judgment entered against Defendant, Wayne E. Smith, dgo/a Smitty's Excavating upon Plaintiff's Complaint. Respectfully submitted, GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. DATE: WAYNE ~. SMITH d/b/a SMITTY'S EXCAVATING WHITE AND WILLIAMS LLP By: John P. Encamacion, Esquire Identification No. 83990 1800 One Liberty Place Ptfiladelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schanmburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 PLAINTIFF MARYLAND CASUALTY COMPANY A/S/O LARRY ADAMS D/B/A LARRY ADAMS WELL DRII ,I,ING'S AMENDED COMPLAINT Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, through its attorneys, for its Amended Complaint against Wayne E. Smith d/b/a Smitty's Excavating, states as follows: 1. Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling ("Maryland Casualty") is a Maryland corporation with its principal place of business in Sehaumburg, Illinois. At all times relevant, Maryland Casualty was duly authorized to engage in the business of issuing policies of insurance throughout the Urdted States, including the Commonwealth of Pennsylvania. 2. Upon information and belief, Defendant Wayne E. Smith d/b/a Smitty's Excavating is. an adult individual who resides at 1310 Pine Read, Carlisle, Pennsylvania. Upon DOCS_PH 1451801vl EXHIBIT "A" information and belief, Smith engaged in business in Pennsylvania as a company nmned Smitty's Excavating ("Smitty's"), which was in the business of providing excavating services. 3. Maryland Casualty issued an insurance policy, No. SCP 37870053 (the "Policy"), to Larry G. Adams d/b/a Larry Adams Well Drilling ("Adams Well Drilling"), for the period of April 1, 2001 to April 1,2002. The policy provided coverage for Adams Well Drilling's drill units while providing drilling services in pennsylvania. 4. In or about May 2001, Yanek Custom Homes ("Y anek") retained Adams Well Drilling to perform well drilling services for a development in Dillsburg, Permsylvania. Yanek was previously hired by the property owners, James and Sharon Wang, to build a custom home. 5. For the project to build a custom home for the Wangs, Yanek also retained Smitty's to perform excavation work. 6. Prior to May 22, 2001, Smitty's performed excavation work on the foundation of · the Wangs' house. Upon information and belief, Smitty's discovered the existence of a sinkhole, multiple sinkholes or a sinkhole system on the Wangs' property. 7. On or about May 25,2001, Adams Well Drilling was using a drill unit to drill a well on the Wangs' property. While drilling the well, a sinkhole opened under the drill unit, causing it to overturn and damage Adams Well Drilling's property. 8. Prior to the damage to Adams Well Drilling's property, Smitty's never informed Adams Well Drilling of the existence of the sinkhole, sinkholes or a sinkhole system on the Wangs' property. 9. Adams Well Drilling submitted a claim to MaE~land Casualty for $51,001.25, which honored the claim and made payments to and on behalf of its insured. Of this amount, Adams Well Drilling was responsible for a $500.00 deductibh:. Maryland Casualty is now DOCS_PH 1451801vl -2- subrogated to any claims Adams Well Drilling may have against third parties, including S mitty's, to the extent of its payments. COUNT 1 - NEGLIGENCE Plaintiff incorporates the allegations contained in paragraphs 1 through 9 as if set I0. forth at length. 11. Smitty's, directly and through its employees, agents, servants and/or workmen, owed a duty of due care to Adams Well Drilling, which included, but was not necessarily limited to, the following: (a) Using reasonable and due care while excavating the Wangs' property; (b) Not creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Informing Adams Well Drilling of any geological hazards discovered during excavation; (d) Abiding by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence 0fa sinkhole, sinkholes or a si~khole system in the area; and . (e) Complying with all applicable statutes, codes, regulations and generally recognized safety practices and standards. Smitty's, directly and through its employees, agents, servants and/or workmen, Adams Well Drilling in 12. negligently, carelessly ancYor recklessly breach its duty of due care to one or more of the following ways: (a) Failing to use reasonable and due care while excavating the Wangs' property; DOCS_PH 1451801vl -3- (b) Creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Failing to inform Adams Well Drilhng of :my geological hazards discovered during excavation; (d) Failing to abide by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence ora sinkhole, sinkholes or a sinkhole system in the area; (e) Failing to comply with all applicable statutes, codes, regulations and generally recognized safety practices and standards; and (f) Such other acts of negligence as may he revealed in discovery. 13. Smitty's negligence, directly and through its employees, agents, servants and/or workmen, was a direct and proximate cause of the May 25, 2001 damage and subsequent costs to Adams Well Drilling's property. WHEREFORE, PlaintiffMaryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, hereby demands judgment against Defendant Wayne E. Smith d/b/a Smitty's Excavating for $51,001.25, together with interest, attorney fees, and costs of suit. Respectfully submitted, Vv'ttlTE/d~ID WILLIAMS LLP ( BY: "/' ~ ~ ,,'-~ JOU~P. Date: 7/21/03 DOCS_PH 1451801vl -4- MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Defendant. You may loose 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 Two Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 MARYLAND CASUALTY COMPANY aYs/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 COMPLAINT AGAINST ADDITIONAL DEFENDANT YANEK CUSTOM HOMES~ INC. AND NOW, comes Defendant, Wayne E. Smith, d/h/a Smitty's Excavating, by and through his counsel of record, Bradley L. Griffie, Esquire, and states: Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, (hereinafter "Smith") is an adult individual residing at 1310 Pine Road, Carlisle, Cumberland County, Pennsylvania. Additional Defendant, Yanek Custom Homes, Inc., is a Pennsylvania Corporation organized and existing under the law of the Commonwealth of Pennsylvania with a business address of 8 South Ridge Road, Boiling Springs, Cumberland County, Pennsylvania, (hereinafter referred to as "Yanek"). o In April and May 2001, Yanek was engaged in the construction of homes on a tract of land located in Monroe Township, Cumberland County, Pennsylvania. ° Smith performed excavating services on the property owned by James and Sharon Wang which is located in the aforementioned development. On or about, July 21, 2003, Plaintiff, Maryland Casualty Company, (hereinafter referred to as Maryland) a/s/o Larry G. Adams, d/b/a Larry Adams Well Drilling, filed an Amended Complaint, which Amended Complaint was served upon counsel of record for Smith on August 25, 2003. The aforesaid Amended Complaint demands, the recovery of damages against Smith in the amount of $51,001.25, together with interests, attorney's fees, and costs of suit. An Answer has been filed to the Amended Compliant by Smith denying any liability in this matter and demanding judgment against Maryland. Yanek is jointly and severally liable with Smith on lvlaryland's cause of action, if any liability exists. If it is judicially determined that Smith is liable for any sums due to Maryland, then it is averred that Yanke is liable to Smith for indemnification or contribution, any and all liability on the part of Smith being expressly denied. 10. Pursuant to Pennsylvania Rules of Civil Procedure Number 425(e), a copy of the Amended Complaint filed in this action is attached hereto and made a part hereof as Exhibit "A." 11. At all time relevant to the issues raised in the Amended Complaint, Yanek was aware that sinkholes, a sinkhole system or other geological hazards existed in the development wherein the Wang property was located and upon which Smith Additional Defendant Larry G. Adams, d/b/a Larry Adams Well Drilling (hereinafter referred to as "Adams"), performed services in the construction of the Wang home. 12. Adams owed a duty of care to Smith and Adams to provide information available to them relative to the geological conditions and hazards in the development and on the Wang property. 13. Adams failed to provide information relative to the sinkholes, sinkhole system, or other geological hazards that existed in the development and on the Wang property to Smith and Adams, despite the fact that the lack of this knowledge could create injury or damages to Smith and/or Adams. 14. Yanek was negligent, directly or through its agents, employees, servants, workmen and other representatives, for failing to provide such information, and such negligence was a direct and approximate cause of the May 25, 2001, damage and subsequent losses to Yanek as set forth in Plaintiffs' Complaint. WHEREFORE, Defendant, Wayne E. Smith, dgo/a Smitty's Excavating, demands judgment against Additional Defendant Yanek for $51,001.25; together with interest, attorneys fees and costs or in an amount equal to the judgment entered against Defendant, Wayne E. Smith, d/b/a Smitty's Excavating upon Plaintiff's Complaint. e,, Esquire ~ fo~r Defendant "'"~-/GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. W,(YNE ~.. SMITH d/b/a SMITTY'S EXCAVATING WHITE AND WILLIAMS LLP By: John P. Encarnacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUM:BERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 PLAINTIFF MARYLAND CASUALTY COMPANY A/S/O LARRY ADAMS D/B/A LARRY ADAMS WELL DRII ,I,ING'S AMENDED COMPLAINT Plaintiff Maryland Casualty Company aJs/o Larry Adams d/b/a Larry Adams Well Drilling, through its attorneys, for its Amended Complaint against Wayne E. Smith d/b/a Smitty's Excavating, states as follows: 1. PlaintiffMaryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling ("Maryland Casualty") is a Maryland corporation with its principal place of business in Schaumburg, Illinois. At all times relevant, Maryland Casualty was duly authorized to engage in the business of issuing policies of insurance throughout the Urtited States, including the Commonwealth of Pennsylvania. 2. Upon information and belief, Defendant Wayne E. Smith d/b/a Smitty's Excavating is. an adult individual who resides at 1310 Pine Read, Carlisle, Pennsylvania. Upon DOCS_PH 1451801vl EXHIBIT "A" information and belief, Smith engaged in business in Pennsylvania as a company nm-ned Smitty's Excavating ("Smitty's"), which was in the business of providing excavating services. 3. Maryland Casualty issued an insurance policy, Nc,. SCP 37870053 (the "Policy"), to Larry G. Adams d/b/a Larry Adams Well Drilling ("Adams Well Drilling"), for the period of April 1, 2001 to April 1,2002. The policy provided coverage for Adams Well Drilling's drill units while providing drilling services in pennsylvania. 4. In or about May 2001, Yanek Custom Homes ("Yanek") retained Adams Well Drilling to perform well drilling services for a development in Dillsburg, Pennsylvania. Yanek was previously hired by the property owners, James and Sharon Wang, to build a custom home. 5. For the project to build a custom home for the Wangs, Yanek also retained Smitty's to perform excavation work. 6. Prior to May 22, 2001, Smitty's performed excavation work on the foundation of the Wangs' house. Upon information and belief, Smitty's discovered the existence of a sinkhole, multiple sinkholes or a sinlchole system on the Wangs' property. 7. On or about May 25, 2001, Adams Well Drilling was using a drill unit to drill a well on the Wangs' property. While drilling the well, a sinkhole opened under the drill unit, causing it to overturn and damage Adams Well Drilling's property. 8. Prior to the damage to Adams Well Drilling's property, Smitty's never informed Adm'ns Well Drilling of the existence of the sinkhole, sinkhoh;s or a sinkhole system on the Wangs' property. 9. Adams Well Drilling submitted a claim to Maryland Casualty for $51,001.25, which honored the claim and made payments to and on behalf of its insured. Of this amount, Adams Well Drilling was responsible for a $500.00 deductiblc. Maryland Casualty is now DOCS_PH 1451501¥1 -2- subrogated to any claims Adams Well Drilling may have against third parties, including Smitty's, to the extent of its payments. COUNT I - NEGLIGENCE Plaintiffincorporates the allegations contained in paragraphs 1 through 9 as if set 10. forth at length. 11. Smitty's, directly and through its employees, agents, servants ancYor workmen, owed a duty of due care to Adams Well Drilling, which included, but was not necessarily limited to, the following: (a) Using reasonable and due care while excavating the Wangs' property; (b) Not creating dangerous conditions that could damage the property of Adams Well Drilling; (c) informing Adams Well Drilling of any geological hazards discovered during excavation; (d) Abiding by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence Of a sinkhole, sinkholes or a si~t/daole system in the area; and (e) Complying with all applicable statutes, codes, regulations and generally recognized safety practices and standard,s. 12. Smitty's, directly and tkrough its employees, agents, servants and/or workmen, negligently, carelessly and/or recklessly breach its duty of due care to Adams Well Drilling in one or more of the following ways: (a) Failing to use reasonable and due care while excavating the Wangs' property; DOCS_PH 1451801vl -3- (b) Creating dangerous conditions that could damage the property of Adams Well Drilling; (c) Failing to inform Adams Well Drilling of any geological hazards discovered during excavation; (d) Failing to abide by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence of a sinkhole, sinkholes or a sinL,hole system in the area; (e) Failing to comply with all applicable statutes, codes, regulations and generally recognized safety practices and standards; and (f) Such other acts of negligence as may be revealed in discovery. 13. Smitty's negligence, directly and through its employees, agents, servants and/or workmen, was a direct and proximate caus~e of the May 25, 2001 damage and subsequent costs to Adams Well Drilling's property. WHEREFORE, Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a Larry Adams Well Drilling, hereby demands judgment against Defendant Wayne E. Smith d/b/a Smitty's Excavating for $51,001.25, together with interest, attorney fees, and costs of suit. Respectfully submitted, WHITE AND WILLIAMS LLP BY: x/,,,~'~ I .~----, .-~ JOH~"P. EN Cc/(3tN AC]D~'E-~QUISLE Date: 7/21/03 DOCS_PH 1451801vl -4- VERIFICATION Craig Brozina, a representative of plaintiff Maryland Casualty Company in the foregoing matter, hereby verifies that the facts contained in the foregoing tanended complaint are true and correct to the best of my knowledge, information and belief. The undersigned makes these statements subject to the penalties of 18 Pa.R.C.S. § 4904 relating to unswom falsification to authorities. Dated: 7/18/03 DOCS_PH 145180lvl CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the within AMENDED COMPLAINT AND VERIFICATION directed to defendant, was served via U.S. Mail, postage prepaid, on the date listed below to the following: Bradley L. Griffie, Esquire Gfiffie& Associates Attorney and Counselors at Law 200 North Hanover Street Carlisle, PA 17013 Dated: Jolm y Encamacion, Esquire -6- MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH dPo/a SMITTY'S EXCAVATING, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : JURY TRIAL DEMANDED : NO. 03-2479 NOTICE TO PLEAD You are hereby notified to file a written response to the. within New Matter within twenty days (20) days from service hereof or a judgment may be entered against you. MARYLAND CASUALTY COMPANY aJs/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED : NO. 03-2479 ANSWER AND NEW MATTER OF DEFENDANT~ WAYNE E. SMITH 1. Admitted. 2. Admitted. o Denied. Defendant is without sufficient knowledge or information to form a belief as to the truth of the averment set forth in paragraph 3 and they are, therefore, denied with specific proof thereof being demanded at trial. 4. Admitted. 5. Admitted. Admitted in part, denied in part. It is admitted that prior to May 22, 2001, Defendant performed excavating work for the foundation of the Wang's house. It is denied, however, that at any time Defendant discovered the existence of sinkholes, multiple sinkholes, nor a sinkhole system on the Wang's property. Denied. Defendant is without sufficient knowledge or information to form a belief as to the truth of the averment set forth in paragraph 7 and they are, therefore, denied with specific proof there of being demanded at trial. Admitted in part, denied in part. It is admitted that Defendant never informed Adams Well Drilling of the existence of the sinkhole, sirdd~oles, or a sinkhole system on the Wang's property. It is denied, however, that any time, particularly prior to May 25, 2001, Defendant had any knowledge of any such sinkhole, sinkholes, or sinkhole system on the Wang's property and, therefore, Defendant had no knowledge or information to provide to Adams Well Drilling regarding this matter. Denied. Defendant is without sufficient knowledge or information to form a belief as to the troth of the averment set forth in paragraph 9 and they are, therefore, denied with specific proof there of being demanded at trial. COUNTI 10. Defendant's Answer to paragraphs 1 through 9 of Plaintiff's Complaint are incorporated herein by reference as if set forth in their full text. 11. Admitted. a.) It is admitted that Defendant owed a duty to others to use reasonable and due care while excavating the Wang's property. h.) It is admitted that Defendant owed a duty of care to not create dangerous conditions that could damage the property of Adams Well Drilling. c.) It is admitted that if Defendant had any information relative to geological hazards discovered during excavating, he had the obligation to provide that information to others. d.) It is admitted that had the presence of a sinkhole, sinkholes, or a sinkhole system in the area had been known to Defendant, he would have had the obligation to notify others. e.) It is admitted that Defendant has the responsibility to comply with all applicable standards, codes, regulations and generally recognized safety practices and standards in the conducting of business on the Wang property and further that Defendant did comply with such standards, codes and regulations. 12. Denied. It is denied that Defendant directly or otherwise committed any act that was negligent, careless or reckless in its conducting of its work on the Wang property. It is further denied that Defendant, or third parties on Defendant's behalf, breached any duty of care to Adams Well Drilling. a.) It is denied that Defendant failed to use reasonable and due care while excavating the Wang's property. b.) It is denied that Defendant created any dangerous conditions that could damage the property of Adams Well Drilling or others. c.) It is denied that Defendant failed to inform Adams Well Drilling of any geological hazards that were discovered during excavation. d.) It is denied that Defendant failed to abide: by current standards of civil engineering practice and building construction with regard to Adams Well Drilling. It is further denied that at any time that Defendant became aware of the presence of a sinkhole, sinkholes, or a sinkhole system in the area during his performing work on the property. e.) It is denied that Defendant failed to comply with all applicable statues, codes, regulations, and generally recognized safety practices and standards. f.) It is denied that Defendant acted negligent in any capacity whatsoever. 13. Denied. It is denied that Defendant was negligent, directly or otherwise, and it is further denied that Defendant was an indirect proximate or any cause of the May 25, 2001, damage and subsequent costs to Adams Well Drilling's property which has been claimed in the Complaint. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiff's Complaint. NEW MATTER 15. Larry G. Adams, d/b/a Larry Adams Well Drilling, is an adult individual currently residing at 3430 Waggoners Gap Road, Carlisle, Cumberland County, Pennsylvania. 16. Based upon the allegations in the Complaint, it is believed and, therefore, averred that Maryland Casualty insured Larry G. Adams, d/b/a/ Larry Adams Well Drilling (hereinafter referred to as "Adams."), at all times relevant to the Complaint. 17. 18. 19. 20. 21. 22. At all times at issue herein, Adams, was aware that a sinkhole, sinkholes, or a sinkhole system were located in the development where the Wang home was being constructed as Adams performed well drilling services in this development previously. At all times relevant to the allegations in the Complaint, Adams was aware that there were geological hazards or conditions on the various properties of the development in which the Wang's property was located. At all times relevant to the allegations in the Complaint, Adams assumed the risk of operating his well drilling equipment on the Wang's property, which was located in the same development. After May 25, 2001, Defendant became aware through Adams, as well as other contractors and subcontractors performing services on the Wang's property, that Adams and other contractors and subcontractors had become aware while constructing another home in the same development that a sinkhole, sinkholes, a sinkhole system or other hazardous geological conditions existed in the development, all of which information was provided to Defendant after the alleged accident and damages occurred on May 25, 2001. If Defendant is required to compensate Plaintiff in any amount whatsoever, Adams is liable over to Defendant for any amount so paid. Any obligation for reimbursement to the Plaintiffs for damages incurred by Adams, are due to Plaintiff from Adams, who assumed the risks and continued to perform services and drilling wells in a development where he had prior knowledge of sinkholes, a sinkhole systems or other geological ha:~ards. 23. The Complaint which was filed on or about May 215, 2001, alleges that prior to May 22, 2001, Smitty's performed excavating work on the foundation of the home and, therefore, the alleged negligence of Defendant Wayne E. Smith, d/b/a Smitty's Excavating, occurred more than two years prior to the filing of the Complaint. 24. The Complaint violates the statute of limitations. WHEREFORE, Defendant, Wayne E. Smith, d/b/a Smitty's Excavating, demands judgment against Plaintiff together with the costs of this action. Respectfully submitted, ~~Esqmre ~~or;;I~endant GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the: penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. ~A~. SMIT"~ dPo/a SMITTY'S EXCAVATING MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : JURY TRIAL DEMANDED : NO. 03-2479 CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire, hereby certify that I did, the ]~day of September, 2003, cause a copy of Defendant's Answer and New Matter to Plaintiffs' Amended Complaint to be served upon Plaintiffs' attorney of record first class mail, postage prepaid at the following address: John P. Encamacion, Esquire White & Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 DATE: /.~ffff~L. ' fie, Esquire ~~rney Jbr Defendant GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717)243-5551 (800)347-5552 MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED : NO. 03-2479 : TO THE PROTHONOTARY: PRAECIPE Please reinstate the Complaint against Additional Defendant, Hoover Engineering, in the above-captioned action. Date Respectfully submitted, ~Esquire Afforrtffy for Defendant GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 ACCEPTANCE OF SERVICE I, Gregory E. Cassimatis, Esquire, acknowledge that on October ] ~, 2003, I received a certified and true copy of a Complaint Against Additional Defendant Yanek Custom Homes, Inc. I further acknowledge that I am authorized to accept service on behalf of my client, Yanek Homes, Inc. Date: t/O -/5--d$ Gregbry .B~ssimatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 GREGORY E. CASSI~ 4999 Louise Drive, Sui Mechauicsburg, PA 17 717-791-0400 Attorney I.D. # 49619 MARYLAND CASUA a/s/o LARRY G. ADA] ADAMS WELL DRIL~ WAYNE SMITH d/b/i EXCAVATING, ~ATIS, ESQUIRE 103 ~55 ,TY COMPANY : IS D/B/A LARRY : ING, : dntiff ;MITTY'S HOOVER ENGINEEr' "fe~d~ioKERS REALTY GROUP, LT )., LARRY G. ADAMS d/b/a LARR5 ADAMS WELL DRILLING and YAN[ Additi¢ ADDITIONAL D[ NEW MATT AND NOW, comes At counsel, Gregory E. C~ 1. Admitted. 2. Admitted. HOMES, : Defendants : ATTORNEY FOR ADDITIONAL DEFENDANT, Yanek Custom Homes, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 : : CIVIL ACTION - LAW ~'ENDANT~ YANEK CUSTOM HOMES~ INC.'S ANSWER WITH ;R AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) titional Defendant, Yanek Custom Homes, Inc., by and through their ;simatis, Esquire and states the following: ~CLOS~ ~._.~~~ 4. 5. 6. 7. 8. 9. 10. 11. Admitted J 2001, Yan tract of lan that in Apr constmcti~ Pennsylva Admitted. Denied wi Defendant truth of the response m It is admitt It is admitt Denied. TI legal conck deemed den Denied. Th legal conclu deemed den: Admitted. Denied. It Amended ~ that sinkhole part and denied in part. It is specifically denied that in April or May of Custom Homes, Inc. was engaged in the construction of homes on a in Monroe Township, Cumberland County, Pennsylvania. It is admitted or May 2001, Yanek Custom Homes, Inc. was engaged in the ora home on a tract of land in Monroe Township, Cumberland County, a. out knowledge. After reasonable investigation the answering Additional ; without knowledge or information sufficient to form a belief as to the tverments in Paragraph 5 of the Joinder Complaint. To the extent a y he required, the docket speaks for itself. that the Amended Complaint speaks for itself. that the original Defendant's Answer speaks for itself. '. allegations contained in Paragraph 8 of the Joinder Complaint contain ~ions to which no responsive pleading is required and the same are ,d. allegations contained in Paragraph 9 of the Joinder Complaint contain ions to which no responsive pleading is :required and the same are rd. specifically denied that at all times relevant to the issues raised in the mplaint, Additional Defendant, Yanek Custom Homes, Inc. was aware a sink holes system or other geological hazards existed in the developm~ Additional! services i~ to the issu~ Homes, Im hazards ex: which Smi' Drilling pe: 12. The allegat Defendant ~ required. to which ~ 13. The allega! Defendant required. to which no 14. Denied. Th legal conclu deemed den WHEREFORE, Ad favor and against D~ ~t wherein the Wang property was located and upon which Smith [sic.] Defendant, Larry G. Adams, d/b/a Larry Adams Well Drilling performed he construction of the Wang home. On the contrary, at all times relevant ; raised in the Amended Complaint, Additional Defendant, Yanek Custom was not aware that sinkholes, a sinkhole system or other geological ~ted in the development wherein he Wang property was located and upon [sic.] Additional Defendant, Larry G. Adams d/b/a Larry Adams Well ~rmed services in the construction of the Wang home. )ns contained in Paragraph 12 of the Joinder Complaint are addressed to a ther than the answering Additional Defendant and no response is ~ the extent a response may be required, it appears to be a legal conclusion responsive pleading is required. ~ns contained in Paragraph 13 of the Joinder Complaint are addressed to a :her than the answering Additional Defendant and no response is the extent a response may be required, it appears to be a legal conclusion 'esponsive pleading is required. allegations contained in Paragraph 14 o f the Joinder Complaint contain ions to which no responsive pleading is required and the same are ;d. itional Defendant, Yanek Custom Homes, Inc. demands judgment in its £endant, Wayne E. Smith d/b/a Smitty's Excavating and Plaintiff. 15. Defendant Yanek Cm be granted 16. Plaintiff's, 17. The answe expiration, 18. At all time~ WaS aware developme] 19. At all time Larry Adm on the Wm 20. Plaintiff's, contributor pursuant to WHEREFORE, Ad favor and against D NEW MATTER Ir DEFENDANTS, } LARRY G. ADAM W3 21. If the incid¢ then Additi~ NEW MATTER Wayne E. Smith d/b/a Smitty's Excavating's Joinder Complaint against om Homes, Inc. fails to set forth a cause of action upon which relief can ~gainst the answering Additional Defendant. :omplaint is barred by the applicable statute of limitations. ng Additional Defendant has no direct liability to the Plaintiff due to the f the applicable statute of limitations. relevant herein, and prior thereto, Plaintiff, Larry Adams Well Drilling ~at there were geological hazards or conditions on other properties in the t in which the Wang's property was located. relevant to the allegations in Plaintiff's Amended Complaint, Plaintiff, Well Drilling aSsumed the risk of operating its well drilling equipment property. mended Complaint is barred in whole or in part pursuant to the and/or comparative negligence of Plaintiff, Lar~ Adams Well Drilling Pa.C.S.A. § 7102, the Pennsylvania Comparative Negligence Act. tional Defendant, Yanek Custom Homes, Inc. demands judgment in its fendant, Wayne E. Smith d/b/a Smitty's Excavating and Plaintiff. THE NATURE OF CROSS-CLAIMS AGAINST ADDITIONAl, OOVER ENGINEERING, BROKER~q REALTY GROUP, LTD~ I d/b/a LARRY ADAMS WELL DRILLING AND DEFENDANT, IrNE E. SMfI'H d/b/a SMITTY'S EXCAVATING t set forth in Plaintiff's Amended Complaint occurred as alleged therein, al Defendants, Hoover Engineering, Brokers Realty Group, Ltd., Larry G. Adams Smitty's E 22. Should it b liable to PI; Additional jointly and/ and/or said Yanek Cusl 23. Additional Pa.R.C.P. WHEREFORE, A favor and against al found liable to the ] Custom Homes, Im appropriate in its fa Realty Group, Ltd., E. Smith d/b/a Smi! Plaintiffs, jointly an to the answering Ad Date: /0 - 3 ~6~3 l/b/a Larry Adams Well Drilling and Defendant, Wayne E. Smith d/b/a eavating are solely liable to Plaintiffs. determined that Additional Defendant, Yanek Custom Homes, Inc. is [ntiffs, which liability is specifically denied, then in that event, the Co- )efendants and Defendant, Wayne E. Smith d/b/a Smitty's Excavating are severally liable with Additional Defendant, Yanek Custom Homes, Inc. >Additional Defendants and Defendant are liable over to Defendant, ~m Homes, Inc. for contribution or indemnity. }efendant, Yanek Custom Homes, Inc. asserts this cross-claim pursuant to 52(d) in order to preserve its right to contribution or indemnity. litional Defendant, Yanek Custom Homes, Inc. demands judgment in its other parties. If Additional Defendant, Yanek Custom Homes, Inc. is laintiffs, which liability is denied, then Additional Defendant, Yanek demands indemnity and/or contribution as the court may deem or and against Co-Additional Defendants, Hoover Engineering, Brokers ~arry G. Adams, d/b/a Larry Adams Well Drilling and Defendant, Wayne % Excavating and demands that said parties be found solely liable to severally liable with the answering Additional Defendant, or liable over litional Defendant as in contribution or indemnity. By: GregOry ~.assimatis, EsqUire Attorney for Additional Defendant, Yanek Custom Homes, Inc. VERIFICATION I, Steve Yanek, /~: the facts set forth in th~ knowledge, informatic statement is made sul: falsification to authorit Date: /)~J"F of Yanek Custom Homes, Inc., a Defendant herein verify itle foregoing Answer with New Matter are tree and correct to the best of my and belief and that I am authorized to make this verification. This ect to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom Sanle~ Steve AND NOW, this 'T/¢ for Additional Defenda~ Additional Defendant's depositing same in the 1 addressed to: CERTIFICATE OF SERVICE lay of (0c~er ,2003, I, Gregory E. Cassimatis, Esquire, Attorney Yanek Homes, hereby certify that I served a copy of the within nswer with New Matter to PlaintifFs C. omplaint on this date by aited States mail, postage prepaid, in Mechanicsburg, pennsylvania, Bradley L. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 White and Williams, LLP John P. Encarnacion, Esquire 1800 One Liberty Place Philadelphia, PA 19109-7395 Hoover Engineering, Inc. 658 Gaumer Road New Cumberland, PA 17070-2823 Brokers Realty Group, Ltd. t/d/b/a Brokersrealty.com 310 Third Street New Cumberland, PA 17070 By: G~e-go~/E(. Cassimatis, E~quire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 49619 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY: Lawrence A. Borda, Esquire Attorney Identification No. 38433 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Phone: (610) 354-9700 Fax: (610) 354-9760 Attorney for Additional Defendant Hoover Engineering Services, Inc. MARYLAND CASUALTY COMPANY aJs/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS dPo/a LARRY ADAMS WELL DRILLING and YANEK HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing Entry of Appearance and Demand for Jury Trial of Additional Defendant Hoover Engineering Services, /nc. was forwarded to the following via regular U.S. mail this/_Q_~% of November 2003: John P. Encarnacion, Esquire White & Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Attorney for Plaintiff and Additional Defendant Maryland Casualty Company a/s/o Larry G. Adams d/b/a Larry Adams Well Drilling Bradley J. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 Attorney for Defendant Wayne E. Smith d/b/a Smitty's Excavating KOP:265136v1 000040 Gregory E. Cassimatis, Esquire Suite 103 4999 Louis Drive Mechanicsburg, PA 17055 Attorney for Additional Defendant Yanek Homes POWELL, TRACHTMAN, LOGAN, CARRLE, BO/WMAN & LOMBARDO, °f~a~vrence A. Bord~f/~qmre Attorney for Addit~nal Defendant Hoover Engineering Services, Inc. KOP:265136v1 0000-70 POWELL, TRACHTMAN, LOGAN, CARRLE, BOW1VIAN & LOMBARDO, P.C. BY: Lawrence A. Borda, Esquire Attorney Identification No. 38433 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Phone: (610) 354-9700 Fax: (610) 354-9760 Attorney for Additional Defendant Hoover Engineering Services, Inc. MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING and YANEK HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Additional Defendant Hoover Engineering Services, Inc. in the above captioned matter. POW-ELL, TRACHTMAN, LOGAN, La~rence A. Bo_r~, Esquire Attorney for Ad/flI4tional Defendant Hoover Engine~ring Services, Inc. Dated: KOP:265136v1 0000-70 POW-ELL TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY: Lawrence A. Borda, Esquire Attorney Identification No. 38433 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Phone: (610) 354-9700 Fax: (610) 354-9760 Attorney for Additional Defendant Hoover Engineering Services, Inc. MARYLAND CASUALTY COMPANY aJs/o LARRY G. ADAMS dPo/a LARRY ADAMS WELL DRILLiNG WAYNE E. SMITH clPo/a SMITTY'S EXCAVATING HOOVER ENGiNEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLiNG and YANEK HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 JURY TRIAL DEMANDED DEMAND FOR ]URY TRIAL TO THE PROTHONOTARY: A trial by twelve (12) member jury is hereby requested on behalf of Additional Defendant Hoover Engineering Services, Inc. in the above-captioned matter. POWELL, TRACHTMAN, LOGAN, '~;/L~{wrence A. Bor~, Esquire Attorney for-Aj~itional Defendant Hoover Engineering' ' Services, Inc. KOP:265'136vl 0000-70 WHITE AND WILLIAMS LLP By: John P. Encamacion, Esquire Idantification No. 83990 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY AJS/O : LARRY G. ADAMS D/B/A LARRY ADAMS : WELL DRILLING : 1400 American Lane : Schaumburg, IL 60196 : Plaintiff, : VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 03-2479 PLAINTIFF MARYLAND CASUALTY COMPANY MS/O LARRY ADAMS D/B/A LARRY ADAMS WELL DRILLING'S REPLY TO NEW MATTER Plaintiff Maryland Casualty Company a/s/o Larry Adams cl/b/a Larry Adams Well Drilling, through its attorneys, for its Reply to New Matter against Wayne E. Smith d/b/a Smitty's Excavating, states as follows: 15. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. 16. Admitted. 17. Denied. 18. Denied. 19. Denied. 20. Denied. DOCS_PH 1505363vl 21. 22. 23. Denied. Denied. Admitted in part, denied in part. It is admitted only that Smitty's performed excavating work on the foundation of the home at some point prior to May 22, 2001. The rest of the paragraph is denied. Specifically, the negligence of Smitty's continued from its discovery of the sinkhole, sinkholes or sinkhole system through the time that Larry Adams d/b/a Adams Well Drilling sustained damage, due to among other actions and omissions, the failure of Smitty's to notify Plaintiff. 24. Denied. WHEREFORE, PlaintiffMaryland Casualty Company a/fro Larry Adams d/b/a Larry Adams Well Drilling, hereby demands judgment against Defendant Wayne E. Smith d/b/a Smitty's Excavating. Date: 11/13/03 BY: Respectfully submitted, WHITE AND WILLIAMS LLP JOI-1N e. ~NCARNACION, ESQU ' DOCS_PH 1505363vl -2- CERTIFICATE OF SERVICE The undersigned hereby certifies that a tree and correct copy of the within REPLY TO NEW MATTER directed to defendant, was served via U.S. Mail, postage prepaid, on the date listed below to the following: Bradley L. Griffie, Esquire Griffie& Associates Attorney and Counselors at Law 200 North Hanover Street Carlisle, PA 17013 John P. :amacion, Esquire Dated: 11/13/03 DOCS_PH ! 505363vl MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : JURY TRIAL DEMANDED : NO. 03-2479 15. ANSWER OF DEFENDANT~ WAYNE SMITH d/b/a SMITTY'S EXCAVATING TO NEW MATTER OF ADDITIONAL DEFENDANT, YANEK CUSTOM HOMES~ INC. DENIED. The allegations set forth in Additional Defendant Yanek's New Matter in paragraph 15 contain legal conclusions to which no responsive pleading is required and they are therefore denied. It is further averred, however, that the Complaint against Additional Defendant, Yanek Custom Homes, Inc., has set forth a proper 16. cause of action. DENIED. The allegations contained in paragraph 16 of Additional Defendant Yanek's New Matter contain legal conclusions to which no responsive pleading is required and they are therefore denied. It is further averred, however, that Plaintiff's Complaint against Additional Defendant was filed in compliance with all applicable statute of limitations. 17. DENIED. The allegations contained in paragraph 16 of Additional Defendant Yanek's New Matter contain legal conclusions to which no responsive pleading is required and they are therefore denied. It is further averred, however, that Plaintiff's Complaint against Additional Defendant was filed in compliance with the applicable statute of limitations. 18. ADMITTED. 19. ADMITTED. 20. ADMITTED. WHEREFORE, Defendant, Wayne E. Smith d/b/a Smitty's Excavating requests your Honorable Court dismiss the New Matter allegations that are legal conclusions and enter judgment in favor of Defendant, Wayne E. Smith d/b/a Smitty's Excavating, against all Additional Defendants or in favor of Defendant, Wayne E. Smith dPo/a Smitty's Excavating, and Additional Defendant, Yanek Custom Homes, Inc., against Additional Defendant, Larry Adams t/d/b/a Larry Adams Well Drilling. ANSWERS OF DFENDANT~ WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING~ TO NEW MATTER IN THE NATUR OF CROSS-CLAIMS AGAINST ADDITIONAL DEFENDANTS 21. ADMITTED. 22. ADMITTED. 23. ADMITTED. WHEREFORE, Defendant, Wayne E. Smith d/b/a Smitty's Excavating, demands judgment be entered against the Additional Defendants, Yanek Custom Homes, Inc., Hoover Engineering, Inc., Brokers Realty Group, LTD, and Larry G. Adams t/d/b/a Larry Adams Well Drilling, and in favor of Defendant, Wayne E. Smith d/b/a Smitty's Excavating, on all matters raised in Plaintiff's Complaint and Defendant's Complaint Against Additional Defendants. Respectfully submitted, Date GRIFFIE & ASSOCIATES 2(}0 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. DATE: MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLING and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NO. 03-2479 CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire, hereby certify that I dkl, the ,~ day of November, 2003, cause a copy of Defendant's Conciliation Memorandum to be served upon Plaintiff's attorney of record by first class mail, postage prepaid at the following addresses: John P. Encarnacion, Esquire White & Williams LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Gregory E. Cassimatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 Hoover Engineering, Inc. 658 Gaumer Road New Cumberland, PA 17070 DATE: I' j-Z(,.JO_B Brokers Realty Group, LTD 310 Third Street New Cumberland, PA 17070 t GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717)243-5551 (800)347-5552 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY: Lawrence A. Borda, Esquire Attorney Identification No. 38433 475 Allendale Road, Suite 200 King of Prnssia, PA 19406 Phone: (610) 354-9700 Fax: (610) 354-9760 Attorney for Additional Defendant Hoover Engineering Services, Inc. MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLiNG WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILL1NG and YANEK HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 JURY TRIAL DEMANDED ADDITIONAL DEFENDANT HOOVER ENGINEERING SERVICES, INC.'S PRELIMINARY OBJECTION TO THE JOINDER COMPLAINT OF WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING Additional Defendant, Hoover Engineering Services, Inc. (hereinafter "Hoover"), by and through their attorneys Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., hereby files this preliminary objection to the joinder complaint and in support thereof, avers as follows: 1. Hoover is a Pennsylvania corporation engaged in the practice of professional engineering and is controlled by licensed professional engineers. 2. On July 21, 2003 Plaintiff Maryland Casualty Company a/s/o Larry Adams d/b/a/ Larry Adams Well Drilling (hereinafier "Plaintiff"), filed an anlended complaint against Wayne E. Smith d/b/a Smitty's Excavating (hereinafter "Smith") seeking recovery for property damage KOP:266300v2 4726-02 alleged to occur on May 25, 2001 to a drill unit that overtumed due to a sinkhole in a development in Dillsburg, Pennsylvania. A copy of Plaintiff's amended complaint is attached hereto as Exhibit "A". 3. Plaintiff's amended complaint alleges professional negligence against Smith. By way of example, and not limitation, Plaintiff's amended compl~dnt alleges the following allegations of professional negligence: [Smith], directly and through its employees, agents, servants and/or workmen, negligently, carelessly and/or recklessly breach [sic] its duty of due care to Adams Well Drilling in one or more of the following ways: c) Failing to inform Adams Well Drilling of any geological hazards discovered during excavation; d) Failing to abide by current standards of civil engineering practice and building construction with regard to informing Adams Well Drilling of the presence of a sinkhole, sinkholes or a sinkhole system in the area; e) Failing to comply with all applicable statutes, codes, regulations and generally recognized safety practices and standards. See Exhibit "A" ¶ 12 c), d) and e). 4. On September 15, 2003, Smith filed ajoinder complaint against Hoover. A copy of Smith's j oinder complaint is attached hereto as Exhibit "B". 5. Smith's joinder complaint incorporates the allegations of professional negligence, as stated in paragraph 3 herein above, and directs said allegations against Hoover. See Exhibit "B" ¶ 10. 6. Moreover, Smith's joinder complaint alleges professional negligence in that, "Hoover failed to provide information relative to the sinkholes, sinkhole system, or other geological hazards that existed in the development and on the Wang property..." See Exhibit KOP:266300v2 4726-02 2 "B" ~ 11,12,13 and 14. 7. As such, Smith's joinder complaint alleges professional negligence against Hoover, a professional engineering firm controlled by licensed professional engineers. 8. Accordingly, because Smith has alleged professional liability claims against Hoover, the claims are governed by the provisions ofPa. R.C.P. 1042 et seq. dealing with professional liability claims against licensed professionals. 9. The joinder complaint does not identify each defendant against whom a professional liability claim is asserted as required by Pa.R.C.P. 1042.2(a). 10. Further, the joinder complaint does not have attached to it a certificate of merit, and none has yet been served upon Hoover pursuant to Pa.R.C.P. 1042.3. Motion to Strike Smith's Joinder Complaint Pursuant to Pa.R.C.P. 1028(a)(2) for Failure to Conform to Rule of Court (Pa.R.C.P. 1042.1 et seq.) 11. Paragraphs 1 through 10 above are incorporated by reference as if same were more fully set forth at length herein. 12. Pursuant to Pa.R.C.P. 1028(a)(2), a party may object to any pleading which fails to conform to law or rule of court. 13. Pa.R.C.P. 1042.2(a) provides that a complaint shall identify each defendant against whom a professional liability claim is asserted. 14. Pa.R.C.P. 1042.2(b) permits a defendant to raise by preliminary objections the failure of the complaint to comply with Rule 1042.2(a). 15. Accordingly, because the joinder complaint fails to expressly state that Smith is asserting a professional liability claim against Hoover, as required by Pa.R.C.P. 1042.2, and KOP:266300v2 4726-02 3 because Smith has not filed a certificate of merit pursuant to Pa.R.C.P. 1042.3, the joinder complaint must be stricken pursuant to Rule 1028(a)(2) for failing to conform to a rule of court. WHEREFORE, Additional Defendant Hoover Engineering Services, Inc., respectfully requests the preliminary objection be sustained and that the claims against it be dismissed with prejudice, together with costs and such further relief as the Court deems appropriate. Date: //~//~7 By: POWELL, TRACHTMAN, LOGAN CARRLE, BOWMAN & LOMBARDO, P.C. 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Tel: (610) 354-9700 Attorneys for Additional Defendant Hoover Engineering Services, Inc. KOP:266300v2 4726-02 4 VERIFICATION John J. Mangan, Esquire, verify that I am counsel for Additional Defendant Hoover Engineering Services, Inc. in the within action, and that I am familiar with the facts of this case and the averments in the foregoing pleading. I further verify that the statements contained herein are tree and correct to the best of my knowledge, information trod belief and that if any of the statements are willfully false, I am subject to the penalties of 18 Pa.C.S.A. § 4909 relating to unswom falsification to authorities. Dated: KOP:266300v1 4726-02 Nfo,nnalion~and beNef, Sm{th engaged in busiz~ess in Permsy]v~n{a ~s a ~ompm~} ngm~d Sm~t~y 3. M~yl~nd Casualty ~ssu~d zn ins~e poli~y. No. $CP 37870053 ({h~ to l,a~y G. Adams d/b/a Larry. Admms Well Drilling ("Admns Well D.,illing"), for the period of 200! to April 1,200? The pohcy provided coverage for Ad,qms WeJ. I Dh]leg s drill =:_,::; wl~le providing d~lling sen,ices in Pem~sylvmnia. "4. J_n.. or about M~y 2001, Yanek Cu.s~om' Homes ("Yanek") retained Adams Well Dzi!ling to pei'fom~ well d.filling sorviees for a developmem in Dillsburg, Pennsylvania. Yanel¢ p~'eviously hired by the property owners, .Tames m~d Sh;~ron Wang, to build a custom home. 5. For the proj oct to build a custom home for the Wangs, Ya.nek also retained £--v..:uT"s to perform excavation work. 6. Prior to May 22, 2001, Smitty's performed excavation work on the foundation of th* Wangs' house. Upon information and belief, Srrdtry's clis6overed the existence ofa si_nld~ole, rnamplc sink:holes or a sinl~ole system on the Wangs' property. 7. on or about May 25,2001 Adams Well Drill[ag w~ ming a drill unit to drill a well on the Wangs' property. Wh/le drillh~g the well, a sinkhole opened under fl~e dx-ill unit, c;usmg ~t to overtm-n ~ud damage Adams Well Drilling s property. 8. Pn0r i0 the damage to Adams Well Drillmg'S property, srrdt'tFs ne~er informed Adams Well Drilling of the existence of the sirdchole, sinldaoles or a sinkhole system on the Wa~gs' propo~y, 9. Admus Well Drillhxg ~ubmitted a claim to Maryland Casualty for $51,001.25, _ _~-_: ,.~v .:. _.,.-,::~.~ '~z= ,e.-.pon--:~z. _~. = 5500.00 d=ductible. -'N'f %-Tl~--,d CasuM:y is now -2- subrogated to m]y claims Adams Well Drilling may have against thirdpa~es, including CO~cTNT I - NEGI,IGENCE 10. ~laint ffin~omo-ates the a]I"gations contained in r~ragraphs l throagh 9 as if set i%rrh at lca~h. 3_ 1. 'Snfiity's, directly a.nd through its ~mployccs, agent, servants an~or workmen, owed a duty of da~ care to Adams WeII Drilling, which inclnded, but was not necessarily limited the f61iowing: (a) (b) Using reasonable and duo care while excavating the Wangs' property; Not creating dangerotm condifiorm that ,otdd damage the property of Adams Well Dritllng; hxforafing Adams Well Drilling of any geological hazards discovered dm-hag excavation; (d) Abi ;cling by current standards of civil en~acefing practice and building' construction with regard to informing Adams Well Drilling of the presence cfa sinkhole, sinkholes or a sinkhole system in the meca; and · (e) Complying with all applicable statutes, codes, regulations and generally cozniZed safety p trices and stan~ard~ re ra , 12. Snotty's; dkectly and through its employees, agents, servants anti/or woflcrnen, negligently, carelessly andtor recklessly breach'its duty of duc care to Adams Well D~liing in one or more of the following ways: z-~ .=a~z to usc reasonable and due care while ex:aras/n-* the '~. :_7.'~s' -3- -~: (b) Creating dmngcro~ conditiol~s that could damage the prop¢.Wcy of Adams Well Drill'inS · Failing to Lnfonn A :-~c~s WcI1 Drilling of ~uy .acoloDcld hazm-d.% discavcred tinting' excavation; (d) Failing tn abide by cra-rent sta~da~ of civil eng{neering practice m~d ~aildmg constrachon ~th regard to infonru~g Adams Well Dnlhng of th presence of a Sk~chole, sinkholes or a sinkhole system .in the area; (e) Failing to comply xxith all applicable statutes, codes, regulations and generally recoguizM safe~ypracfices and standards; and (f) Such other acts ofn:gligence as may be revealed in discovery. :13. Smitty, 's neglig~ce, dkec& and through its employees, agents, servmts mad/or ... workmen, was a ctireet and proximate ca~ of the May 25, 2001 ~mage and subsequent costs to Adams Well Drilling's property. WI-IEKEFOR.E, Plain;iffMarylan/. Casualty Company aJs/o Larry A. dams d/bin Larry Adams Well Drilling, hereby demands judgraent againxt Defendant Wayne E. Smith d/b/a 5rrdtty's Excavating for $51,001.25, togei'~r with interest, a~tomey fees, and costs of ~it. 7/21/03 BY: -4- · .: . . Craig Brozina~ a representative ofplainffffMm~v., land Ca.aualty Company h~ the foregoing m~'tte, r. hereby vmfies thai thc facts contah~ed in the l'oregoing amended Comp_ia~i~t ara tree and .' co~ect io thc bcst of my know]edge, information md bcllcf. 'fha: undersigned m~kes ~hese statmnents subje;t to thc penalties of I g PzlLC.S. § 4904 rdatin~ to unswam falsification to Dated: 7/I g/03 CERTIFICATE Ol? SERVICE - · The u,,~e, s~s:!*,- i.~ ..~y ce, ..fi~ that a true and correct cop~: of t!',e w~r.h,.n AMENDED Co~PLMNT AND -rE.FiXAtiON d{r~ted {o defehdant; v)aS keik;ed Via U.s. Maik , :' postage prepaid, on the date listed below to thc following: 3mdley L. Griffie, Esquire Gn!'ie& Associates ,a_~tomey and Counselom at Law 200 North Hanover Street Carlisle, PA 17013 Dated: __ Jol-m~tEncamacion, Esquire -6- WELL D~LLr~6, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGI'NrEER1NG, BROKERS F~EAL'r¥ GROUP, LTD., LARRY O. .-'_D.~MS d,'b/a: LARRY ADA/vIS WELL DILU..I.I:NG and yANT. K HOIVI:FIS, Additional Defendants : IN TH'E COURT OF COMMON PLEAS OF : Cb~ERLAND COI_~TY, PENNSYLVANIA JURY ~ DBMANDED NO. 03-2479 NOTICE To'DEFEND You have been sued m Coup. If you wish to defend against the claims set forth in the f:Eowing pages, you must rake action within twenty (20) days aRer tkis complaint and notice ar-= s¢~cd, by entering a written appearance personM[y or by attorney and fii.ing in writing with the 7 ::..:~ your defenses or objections to the claims set forth against you. You are warned that if you t'::', ::, do so the case may proceed without you and a judgment may be cn(ered against you by ~e Cou:1 without fu~er notice for any money claimed in the complaint or tbr any other claim or relief requested by the Defendant. You may loose money or property or other ri~ts important to you. : : ' ' Y&U SHOULD T'g-K-E THIS PAPER TO yOUR:LAWYER AT ONCEi IF YOU DO ~ :T H_~.VE A LA'WY'ER OR CANNOT AFFORD ONE, GO TO OIL TELEPHONE THE ii:.F:CE SET FORTE BELOW TO FiND OUT ~2{EILE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Two Liberty Avenue Car:2-~.~. ?ennsyivania 170:. S , ;', 7, '24~-3 i66 ...:_~: ~__,MN~'D C:.kS:UALTY CO-~'-~-NY : ~ ~ COD~T 0F COMMON PLEAS OF ... :...~-: ~,s~0L.~Y-G::~Msd~/aLA~Y C~BRL~CO~,PB~SYLV~'~ :_ ~i ~.. ' ' D~LL~G, . ~. ~MS ~ ELL Plmnfiff : : ~URY TRIAL DEi~IANDED V. ; : WAYN~ E. SIvC_rTI-t d/b/a SMITTY'S : NO. 03-2479 EXCAVAThNG, : Defendant : HoOvER ENGINEERING, BROICERS ?&ARTY GROUP, LTD., LARRY . ADAMS d/b/a/LARRY ADAMS WELL D_R~LING and Y.ANEK HOMES, Additional Defendants · COM[PLAINT AGAINST ADDITIONAL DEFENDANT ItOOVERS ENGINEEI:U-NG _AND NOW, comes Defendant, Wayne E. Smith, d/b/a Srrdtry's Excavating, by and 2~.-ough his counsel of record, Bradley L. Griffie, Esquire; and states: Defendant, Wayne E. Smith, dfo/a Smitty's Excavating, (hereinafter "Smith") is an adult individual residing at 1310 Pine Road, Pennsylvania. Carlisle, Cumberland County, Additional Defendmnt, Hoover En~ineering, Nc:. (hereinafter "Hoovgr") is a Pennsylvania Corporation organ/zed and existing under the law of the ~ ..... .:,-or .~,.c~,-,-~'-- of~e~:;.syi,,.am~' ' w~rh' ~_ l:u~m~'; ~-- ;;',.-:: ....... ~tf $5~ Gan.me': ~-.z:. Cumber[and. York Counv. Pennsylvania. 3. In April' and May 2001, Hoover was e~gaged in thc :development of a tract of land ' :: "'~ 'located in Monroe Towrmhip, Cumbertan~ County, Penmsy! ama. . · Smith performed excavatLug services on the property owned by James and Sharon Wang which is l~catcd in the aforementioned development 5. On or about, July 21, 2003, Plaintiff% Marylm~d Casualty Company, (hereinafter referred to as Maryland) a/s/o Larry O. Adams, d/b/a Lan'y Adams Well Drilling, filed an Amended Complaint, which Amended Complaint Was served np0n counsel of record for Smith on August 25, 2003. 6. The aforesaid Amended Compl//int demands .the reeovew .of damages against Smith ' in the amount of $51,001.25, together with interests, attorney's foes, and costs of suit. An Answer has been filed to the Amended Compliant by Smith denying any liability in this matter and demanding judgment against Maryland. Hoover is jointly and severally liable with Smith on Maryland's cause of action, if any liability ~ists. If it is judicially determined that Smith is liable for any sums due to Maryland, then it is averred that Hoover is liable to Smith for indemnification or contfibuti, on, any and all liability on the part of Smith being expressly denied. 10. P~suant to Permsylvsnia Rules of Civil Procedure Number 425(e), a copy of the Amended compiaint flied/n this aCtiOn is Mtacked beret6 and made a part hereof as Exhibit "A." I I. At all tflne relevant to the issues raised in the Amended Complaint, Hoover was -'aware that sinkholes, a sinkhole system or other gcolo~cal hazards existed in the development wherein the Wang property was located and upon which Smith, Additional Defendant Larry G. Adams, d/b/a Larry Adams Well Drilling (hereinafter referred to as "Adams"), and Additional Defendant Yanek Homes (hereinafter referred to as "Yanck") perfbrmed service~ i,.~ the construction of the Wang home. Hoover owed a duty of care to Smith, Adams and Yanek to provide information available to them relative to the geological conditions and hazards in the development and on the Wang property. 13. Hoover failed to provide information relative to the sinkholes, sinkhole system, or othcr geolqgical hazards that existed in the development and on the Wang Property to smith, Adams and yanck, despite the fact that :the lack of this knowledge could create . injury or damages to Smith, A 'dams and/or Yanek. 14. Hoover was negligent, directly or through its agents, employees, servants, workmen and other representatives for failing to provide such information, and such negligence was a /~/rect and approximate cause of the May 25, 200~.. damage and subsequent losses to Adams as set forth in Plaintiffs' Complaint. . "wHEREFORE, Defendsmt, wa-:me E Smith, d/b/a 8mitty's .ExcavatLng, demands " ;udgmen* agai;~i Additional D~fendant Hoovei- for $5i,001.25 together With inmest, ~ttomeys ' and costs or in an amount equal to ~e judgrnent entered against Defenrl~nk Wayne E. : Smith, d/b/a Srr2tty's Excavating upon ?Ia~tiff's Complaint. Respectfully submitted, ~qulrc. GR.IFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5.551 (800) 34%5552 . y :RIFICATION i vcri~, t~hat tho statements mad~ in the foregoing document ar~ true and correct. I ..... ~o_~d t~.~ -t~, statcme, arz her~n arc made' subject to the penalties of 18 Pa.C.S. Section 4904; r~lating to unswom falsi~cat~ons to a~thoridcs. d/b/a SMI l'J.' f' S EXCAVATING POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY: Lawrence A. Borda, Esquire Attorney Identification No. 38433 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Phone: (610) 354-9700 Fax: (610) 354-9760 ~ MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS clPo/a LARRY ADAMS WELL DRILLING and YANEK HOMES Attorney for Additional Defendant Hoover Engineering Services, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY, ~ENNSYLVANIA NO. 03-2479 JURY TRIAL, DEMANDED CERTIFICATE OF SERVICE A true and correct copy of the foregoing Preliminary Obi ection to the joinder complaint was forwarded to opposing counsel by regular U.S. mail, at the addresses and on the date set forth below: John P. Encarnacion, Esquire White & Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Attorney for Plaintiff and Additional Defendant Maryland Casualty Company a/s/o Larry G. Adams d/b/a Larry Adams Well Drilling Gregory E. Cassimatis, Esqmre Suite 103 4999 Louis Drive Mechanicsburg, PA 17055 Attorney for Additional Defendant Yanek Homes Date: Bradley J. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 Attorney for Defendant Wayne E. Smith d/b/a Smitty's Excavating Brokers Reall7 Group, Ltd. t/d/b/a Brokersrealty.com 310 Third Street New Cumberland, PA 17070 Lawrerl~e ~. Borda~ / John J. ~/!a0gan KOP:266300vl 4726-02 SHERIFF'S CASE NO: 2003-02479 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARYLAND CASUALTY COMPANY ETAL VS SMITH WAYNE E DBA SMITTY'S EXC RETURN - REGULAR CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BROKERS REALTY GROUP LTD ADD'L DEFENDANT, at 1639:00 HOURS, at 310 THIRD STREET NEW CUMBERLAND, PA 17070 DENNIS HUDAK, AGENT, a true and attested copy of the on the 30th day of September, 2003 by handing to ADULT IN CHARGE COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 11.73 Affidavit .00 Surcharge 10.00 .00 27.73 Sworn and Subscribed to before me this 2? day of ~ ~2~3 A.D. rothonotary ' So Answers: R. Thomas Kline 11/26/2003 GRIFFIE ASSOC SHERIFF'S CASE NO: 2003-02479 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARYL~LND CASUALTY COMPANY ETAL VS SMITH WAYNE E DBA SMITTY'S EXC RETURN - REGULAR KENNETH GOSSERT , Cumberland County, Pennsylvania, Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 1st day of October by handing to A~DULT IN CHARGE true and attested copy of COMPLAINT & NOTICE together with says, the within COMPLAINT & NOTICE YANEK CUSTOM HOMES ADD'L DEFENDANT, at 1510:00 HOURS, on the at 8 SOUTH RIDGE ROAD BOILING SPRINGS, PA 17007 EDIE YANEK, BOOKKEEPER, a 2003 and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6 00 4 14 00 10 00 00 20 14 Sworn and Subscribed to before me this ~ day of Prothonotary So Answers: R. Thomas Kline 11/26/2003 GRIFFIE ASSOC / ( Dep~'ty~ff SHERIFF'S RETURN - CASE NO: 2003-02479 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARYLAND CASUALTY COMPAi~Y ETAL VS SMITH WAYNE E DBA SMITTY'S EXC REGULAR KENNETH GOSSERT , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE ADAMS I~ARRY G ADD'L DEFENDANT, at 1855:00 HOURS, on the at 3430 WAGGONERS GAP ROAD CARLISLE, PA 17013 LARRY G ADAMS a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 1st day of October 2003 by handing to together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 19.45 Sworn and Subscribed to before me this ~ day of ~~ ~2 ~1~ A.D. honotary So Answers: R. Thomas Kline 11/26/2003 GRIFFIE ASSOC / De~ut~ ~i: SHERIFF'S RETURN CASE NO: 2003-02479 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARYLAND CASUALTY COMPANY ETAL VS SMITH WAYNE E DBA SMITTY'S EXC - OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named ADD'L DEFENDANT HOOVERS ENGINEERING INC but was unable to locate Them deputized the sheriff of YORK serve , Sheriff or Deputy Sheriff who being says, that he made a diligent search and to wit: in his bailiwick. County, the within COMPLAINT & NOTICE He therefore Pennsylvania, to On November 26th , 2003 attached return from YORK Sheriff,s Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 47.36 .00 84.36 11/26/2003 GRIFFIE ASSOC Sworn and subscribed to before me this ~ day of ~~ A.D. Prothonotary ~ this office was in receipt of the SO answers: 1%. Thdm$s -KI~ Sheriff of Cumberland County COUNTY OF YORK OFFICE OF THE SHERIFF (717) 771-9601 28 EAST MARKET ST., YORK. PA 17401 SHERIFF SERVICE INSTRUCTION~ PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE I THRU DO NOT DETACH ANY COPIF.~ Maryland Casualty Ccr~pany a/s/o Larry G. Adams d/b/a ' Lar~, 4. TYPq OF WRIT OR COM. PLAINT 3. DEFENDANT/S/ Notxce & CcmpJ.a~nt against Hoover Engineering et al Additional Defendants SERVE ~' 5. NAME~F~NDI~DUAL'~M~ANY'C~RP~RAT~N~ETC~T~ERVE~RDES~R~PT~N~FPR~PERTYT~BELE~E~A~ACHED,~R~LD~ Hoovers ~ngineer~n9 Inc 6 ADDRESS (STREET OR RFC WITH BOX NUMBER. APT NO, ClT'~ BORG. TWP.. STATE AND ZIP CODE) AT 658 Gaumer Roa~ Ne~ C~nberland, PA 17070 7 INDICATE SERVICE: ~] PERSONAL O PERSON IN CHARGE O DEPUTIZE (~l~,Tr.~l,~r,~ L.I 1ST CLASS MAIL LJ POSTED O OTHER NOW September 29 ,20__03 I, SHERIFF OF ~ COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute tt~S~ '~k~?: rgt~rn !~co_rding and risk of the plaintiff. ,¢~ ~:a _~ .. to law. This deputization being made at the request ' ' ' ' ";72':'~"~:~': ':"~:"' -- SHERIFF OF ~* COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cl~berland OUT OF COUNTY CUMBERLAND ADVANCED FEE PAID BY SHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within wdt may leave same without a watchman in custody of whomever is found in possession, after notifying person o levy o attachmen, withou iab y on he par[ of such deputy or he sherff o~any pla n~f~ herein for any loss, (~estruction, or removal of any property before sheriff's sale thereof 9 TYPENAMEandADDRESSofA~rORNEY/ORIGINATORandSIGNATURE 10 TELEPHONE NUMBER '~11 "D'~,TEFILE'D / BRADLEY GRIFFIE 20ON. HANOVER ST. CARLISLE, PA 17013 243-5551 19-15-03 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUHBERLAND CO SHERIFF SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT WRITE BELOW THIS LINE 13. I acknowledge receipt of the wdt ~ 14 DATE RECEIVED 15. Expiratio~VHeadng Date orcomplaintasindiCatedebove. R. AHRENS I 10-1-03 ' 10 15-03' 16. HOWSERVED: PERSONAL( ) RESIDENCE( ) POSTED( ) POE(~ SRERIFF'SOFFICE( ) OTHER( ) SEE REMARKS BELOW 17. [~ I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. name above· (See remarks below.) 18. NAMEANDTITLEOF INDIVIQUAL SERVED~J USTADDRESS HERE IFNOTSHOWNABOVE (Relationshipte Defendant) l~..)D~v~ce 20. ~n~ofService "~ ~L~. ~-~ ~t~m d In 'D '~ 'M, s' It Date ~me Miles ~me~'--~'~"~'-"Miles, 21. ATFEMPTS~,~[~me~.~a Time Miles ~T,~ ~;. ~.) I ] ilInt. ~ e M'es t. ate me 'le n ' Int. I Date lob { Date Time Mi~es Int. =. RE.AR.S: Drop' rotc 23.75.AdvanCeo0 Costs 18.24' Service00 Costs 25. N/F 27.26' Mileage36 27. Postage 45.28' Sub36Total 29. Pound 2.3°' Notary 31 00 34. Fore,gn County Costs I 35. Advance Costs I 36. Service Costa I 37. Notary Cert I 38. M,eage/Posted/Not Found 41 AFFIRMED and subscribed to before me this 5 . I~S1NERS 42. dayof [~'OV. .~'~"~dA~C~.-(//~.~-~-l~p. Sheriff ~ ~ · .~ 44. S~gnature of -,-,,-~-~,T,~NO~ARY 46. Sig~atareofYork~/'///~'' 77/~.~//~4~ -- , / I ] FOR WILLIAm4 M. HOSE //w-/(~.y,//,~, ~ My Corrlmis.sloo E. xiNres Mawr. 21, 2~O51 48. Signature of Foreign ~, County Shedff 50.I ACKNOWLEDGe'RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED !$SUING AUTHORITY AND TITLE '-~...~uthodty 2. PINK - Atiomey 3. CANARY - Shedff's Office 4. BLUE - Sheriffs Office 47. 11-5-03 MARYLAND CASUALTY COMPANY aYs/o LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING Plaintiff WAYNE SMITH d/b/a SMITTY'S EXCAVATiNG, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLiNG and YANEK HOMES, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Dated: SHUMAKER Ant Attome' LLIAMS, P.C. J. Foschi, Esquire I.D. #55895 P.O. Box 81 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Brokers Realty Group, LTD. : 160694 MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING, Plaintiff WAY'NE SMITH d/b/a SMITTY'S EXCAVATING, Defendant HOOVER ENGINEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING and YANEK HOMES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2479 Additional Defendants : CIVIL ACTION - LAW ADDITIONAL DEFENDANT~ BROKERS REALTY GROUP~ LTD.'S ANSWER WIT}I NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) AND NOW, comes Additional Defendant, Brokers Realty Group, LTD., by and through their counsel, Shumaker Williams, P.C. and states the following: 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted in part and denied in part. It is specifically denied that in April or May of 2001, Brokers Realty Group, LTD was engaged in the development of a tract of land in Monroe Township, Cumberland County, Pennsylvania. It is admitted that in April or May 2001, Brokers Realty Group, LTD. was engaged in the selling of lots on a tract of land in Monroe Township, Cumberland County, Pennsylvania. 4. Admitted upon information and belief. 5. Denied without knowledge. After reasonable investigation the answering Additional Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 5 of the Joinder Complaint. To the extent a response may be required, the docket speaks for itself. 6. It is admitted that the Amended Complaint speaks for itself. 7. It is admitted that the original Defendant's Answer speaks for itself. 8. Denied. The allegations contained in Paragraph 8 of the Joinder Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. 9. Denied. The allegations contained in Paragraph 9 of the Joinder Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. 10. Admitted. 11. Denied. It is specifically denied that at all times relevant to the issues raised in the Amended Complaint, Additional Defendant, Brokers Realty Group, LTD. was aware that sinkholes, a sink holes system or other geological hazards existed in the development wherein the Wang property was located and upon which Smith [sic.] Additional Defendant, Brokers Realty Group, LTD sold the property to the Wangs. On the contrary, at all times relevant to the issues raised in the Amended Complaint, Additional Defendant, Brokers Realty Group, LTD. was not aware that sinkholes, a sinkhole system or other geological hazards existed in the development wherein the Wang property was located and upon which Smith [sic.] Additional Defendant, Larry G. Adams d/b/a Larry Adams Well Drilling performed services in the construction of the Wang home. 12. Denied. It is specifically denied that Brokers Realty Group, LTD. owed a duty of care to Smith, Adams and Yanek to provide information to them relative to the geological conditions and hazards in the Development and on the Wang property and strict proof to the contrary is determined at time of trial. 13. Denied. The allegations contained in Paragraph 13 of the Joinder Complaint contain legal conclusions to which no responsible pleading is required and the same are deemed denied. 14. Denied. The allegations contained in Paragraph 14 of the Joinder Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. WHEREFORE, Additional Defendant, Brokers Realty Group, LTD. demands judgment in its favor and against Defendant, Wayne E. Smith d/b/a Smitty's Excavating and Plaintiff. NEW MATTER 15. Defendant, Wayne E. Smith d/b/a Smitty's Excavating's Joinder Complaint against Brokers Realty Group, LTD. fails to set forth a cause of action upon which relief can be granted against the answering Additional Defendant. 16. Plaintiff's Complaint is barred by the applicable statute of limitations. 17. The answering Additional Defendant has no direct liability to the Plaintiff due to the expiration of the applicable statute of limitations. 18. At all times relevant herein, and prior thereto, Plaintiff, Larry Adams Well Drilling was aware that there were geological hazards or conditions on other properties in the development in which the Wang's property was located. 19. At all times relevant to the allegations in Plaintiff's Amended Complaint, Plaintiff, Larry Adams Well Drilling assumed the risk of operating its well drilling equipment on the Wang's property. 20. Plaintiff's Amended Complaint is barred in whole or in part pursuant to the contributory and/or comparative negligence of Plaintiff, Larry Adams Well Drilling pursuant to 42 Pa. C.S.A. § 7102, the Pennsylvania Comparative Negligence Act. WHEREFORE, Additional Defendant, Brokers Realty Group, LTD. demands judgment in its favor and against Defendant, Wayne E. Smith d/b/a Smitty's Excavating and Plaintiff. NEW MATTER IN THE NATURE OF CROSS-CLAIMS AGAINST ADDITIONAL DEFENDANTS~ HOOVER ENGINEERING~ YANEK CUSTOM HOMES~ INC. LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLING AND DEFENDANT~ WAYNE E. SMITH d/b/a SMITTY'S EXCAVATING 21. 22. 23. If the incident set forth in PlaintiWs Amended Complaint occurred as alleged therein, then Additional Defendants, Hoover Engineering, Yanek Custom Homes, Inc., Larry G. Adams, d/b/a Larry Adams Well Drilling and Defendant, Wayne E. Smith d/b/a Smitty's Excavating are solely liable to Plaintiffs. Should it be determined that Additional Defendant, Brokers Realty Group, LTD. is liable to Plaintiffs, which liability is specifically denied, then in that event, the Co-Additional Defendants and Defendant, Wayne E. Smith dPo/a Smitty's Excavating are jointly and/or severally liable with Additional Defendant, Brokers Realty Group, LTD. and/or said Co-Additional Defendants and Defendant are liable over to Defendant, Brokers Realty Group, LTD. for contribution or indemnity. Additional Defendant, Brokers Realty Group, LTD. asserts this cross-claim pursuant to Pa.R.C.P. 2252(d) in order to preserve it fight to contribution or indemnity. WHEREFORE, Additional Defendant, Brokers Realty Group, LTD. demands judgment in its favor and against all other parties. If Additional Defendant, Brokers Realty Group, LTD. is found liable to the Plaintiffs, which liability is denied, then Additional Defendant, Brokers Realty Group, LTD. demands indemnity and/or contribution as the court may deem appropriate in its favor and against Co-Additional Defendants, Hoover Engineering, Yanek Custom Homes, Inc., Larry G. Adams, d/b/a Larry Adams Well Drilling and Defendant, Wayne E. Smith d/b/a Smitty's Excavating and demands that said parties be found solely liable to Plaintiffs, jointly and severally liable with the answering Additional Defendant, or liable over to the answering Additional Defendant as in contribution or indemnity. Date: By: Antony J. Foschi, Esquire Attomey for Additional Defendant Brokers Realty Group, LTD. Shumaker Williams, P.C. 3425 Simpson Ferry Road Camp Hill, PA 17011 (717) 763-1121 Attorney I.D. #55895 :160555 VERIFICATION I, Betty Piatt, President of Brokers Realty Group, LTD., an additional Defendant herein verify the facts set forth in the foregoing Answer with New Matter are tree and correct to the best of my knowledge, information, and belief and that I am authorized to make this verification. This statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. BROKERS REALTY GROUP, LTD. By: .~/~.j~, r~ Betty Pi~ Presictent CERTIHCATE OF SERVICE AND NOW, this day of _, 2003, I Anthony J. Foschi, Esquire, Attorney for Additional Defendant, Brokers Realty Group, LTD., hereby certify that I served a copy of the within Additional Defendant's Answer with New Matter to Plaintiff's Complaint on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania addressed to: Bradley L. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 White and Williams, LLP John P. Encarnicion, Esquire 1800 One Liberty Place Philadelphia, PA 19109-7395 Hoover Engineering, Inc. 658 Gaumer Road Suite 100 New Cumberland, PA 170700-2828 Gregory E. Cossimatis, Esquire 4999 Louise Drive Suite 103 Mechanicsburg, PA 17055 By: Anthony J. Foschi, Esquire Shumaker Williams, P.C. 3425 Simpson Ferry Road Camp Hill, PA 17011 (717) 763-1121 Attorney I.D. #55895 WHITE AND WILLIAMS LLP By: John P. Encamacion, Esquire Identification No. 83990 1800 One Liberty Place Philadelphia~ PA 19103-7395 (215) 864-6354 MARYLAND CASUALTY COMPANY A/S/O LARRY G. ADAMS D/B/A LARRY ADAMS WELL DRILLING 1400 American Lane Schaumburg, IL 60196 Plaintiff, VS. WAYNE E. SMITH D/B/A SMITTY'S EXCAVATING 1310 Pine Road Carlisle, PA' 17013 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO. 032479 PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-referenced matter as Settled, Discontinued and Ended without prejudice. Respectfully submitted, WHITE AND WILLIAMS By: Dated: DOCS_PH 1517490vl MARYLAND CASUALTY COMPANY a/s/o LARRY G. ADAMS d/b/a LARRY ADAMS WELL DRILLiNG, Plaintiff WAYNE E. SMITH d/b/a SMITTY'S EXCAVATiNG, Defendant : iN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : JURY TRIAL DEMANDED : NO. 03-2479 HOOVER ENGiNEERING, BROKERS REALTY GROUP, LTD., LARRY G. ADAMS d/b/a/LARRY ADAMS WELL DRILLiNG and YANEK HOMES, Additional Defendants TO THEPROTHONOTARY: PRAECIPE TO SETTLE AND DISCONTINUE Please mark the above-referenced claims by Defendant against Additional Defendants as settled and discontinued without prejudice. Date Respectfully submitted, GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552