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HomeMy WebLinkAbout99-02441 .,,[ "'>',' '. "~ ')9! "J ':...,. . .'. . -' ,~ co ~ >- to >- n: I; ..- . , , r-J ,- t, ( B i : (.'-. "'-1 I.) .-:, r'") 10 l . " C..; I I Ll~ (' 'd ,. ,.. el_ 1--- ..;': .,;: I , (T'I :~) l.,: Gi U ~ \ ' ~"J ~. p ~ ~ .... )v-, ~ ~ ~~~ \l <..3-- ~ r- ~tj~ ... , .~""'''''{'''W'.~.'>.''l.^''''''''t..._..",,_._,,.,-...., . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA as Subrogee of Carl Pedersen 530 Walnut Street, Suite 1650 Philadelphia, PA 19106 V. No. 1'tf - c2l/t/ / ~ Steven M. Houck 523 W. Lisbon Road Mechanicsburg, PA 17055.5830 and Civil Action James E. Spicer 116 North Fayette Street Shippensburg, PA 17257 NOTICE TO DEFEND 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. law Office, 01 Mark J. Wollman AU)' 1.0. No, 57127 SUlle 700,34 the Pavilion 261 Old Yorl< road Jenklntown. PA 19046 (215) 887.3505 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 Avenu~ Carlisle, Pa 717-249-3166 COURT OF COMMON PLEAS CUMBERLAND COUNTY ')~ ,il,: ;i:; ,.~. ,;~!: :,i ~f "~~. ,~ii INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA as Subrogee of Carl Pedersen 530 Walnut Street-Philadelphia, PA 19106 V. No :? Jr '", f.. v; ',,~ ~:" !,[ Steven M. Houck 523 W. Lisbon Road Mechanicsburg, PA 17055-5830, -and- James E. Spicer 116 North Fayette Street Shippensburg, PA 17257 Civil Action 'i if' !:: .~ i; 'i, COMPLAINT Plaintiff, INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA as Subrogee of Carl D. Pedersen (the "Insured") by and through its undersigned counsel avers as follows: 1. Plaintiff is an unincorporated non-profit association created by statute, 40 P.S. 1600.101-1600.502, Act of July 31, 1968, P.L. 738, to issue basic fire insurance policies in the Commonwealth of Pennsylvania, and maintains a principal place of business at 530 Walnut Street, Suite 1650 Philadelphia, Pennsylvania and is entitled by law and equity to bring this action by virtue of an insurance payment made to Carl D. Pedersen (the "Insured") as described in more detail below. lftOfflCelof Marl< J, Wollman AltY. 1.0. No. 57127 SUlle 700.34 The Pavilion 261 Old York Road Jenldnlown. PA 19046 (215) 867-3505 2. Plaintiff insured the Tau Kappa Epsilon fraternity house ("TKE House") located at 11 Britton Road, Shippensburg, Pennsylvania (the "Premises") under Policy of Insurance No 612180-97-0 effective from 02/12/97 to 02/12/98 (the "Policy"). A true and correct copy -\- Law OfflC81 Of Mark J. Wollman Ally 1.0. No. 57127 Sufle 700-34 The Pavilion 261 Old YOI1< Road Jenklntown. PA 19046 (215) 687-3505 of the declaration page of said Policy is attached as Exhibit A. 3. The defendant Jam8s E. Spicer is an adult individual with an address of 623 W. Lisbon Road, Mechanicsburg, PA 17066-5830. 4. Defendant Steven M. Houck is an adult individual with an address of 116 North Fayette Street, Shippensburg, PA 17257 6. A major fire occurred on or about July 23, 1997 at the Tau Kappa Epsilon fraternity house, which consumed and destroyed most of the house and contents therein (the "Fire" or "Major Fire"). 6. At the time of the fire, the defendants were present in and residing at the TKE House. 7. The Major Fire complained of herein was caused by the re-kindling of a small, earlier fire a few houl's prior. 8. The small, earlier fire occurred when defendant James E. Spicer, turned on his air conditioner and went to sleep. He was awakened by a small fire burning at the end of his mattress which he attempted to extinguish solely by pouring water on from a dog bowl onto the fire. The authorities were not called. He was assisted by Steven M. Houck who was sleeping in another room. The two defendants left the burning and/or burnt bedding in the room and then removed batteries from smoke alarms is the Premises before the two moved to Houck's room to return to sleep. 9. Thereafter, fire re-kindled in the mattress which set surrounding consumables on fire, igniting the Major Fire to the premises. The Major Fire engulfed the entire premises; whereupon defendants finally awoke and escaped to safety through a window with a dog. 10. Pursuant tothe Policy of Insurance, the Facility paid its Insured $102,238.04 in partial indemnity for the reasonable actual cash value damages arising out of the Fire. By virtue of its payment, the Facility became subrogated to the rights of its Insured and is entitled by law and equity to proceed herein. - 2- COUNT I NEGLIGENCE Insurance Placement Facility of Pennsylvania as subrogee of Carl D. Pedersen v. James E. Spicer and Steven M. Houck 11. The foregoing paragraphs No.1 through 10 are incorporated herein by reference. 12. The defendants owed a duty to the building owner, Carl Petersen, to use reasonable precautions to guard against the outbreak of fire. 13. The defendants breached that duty and were careless and/or negligent in the' following, but not limited to, manner: by: a). failing to reasonably, competently, prudently and/or fully extinguish the first fire; b). failing to report the first fire to the fire department; c). failing to inspect the mattress for internal burning or heat build-up or deep- seated fire within the mattress after the first, small fire; d). failing to properly remove the subject mattress from the house after the first fire so as to prevent the foreseeable outbreak of a second catastrophic fire in the foreseeable event of re-kindling; a). Removing the batteries for and/or otherwise disabling the smoke/heat detectors and/or certain smoke/heat detectorls) in the Premises which would cause a re-kindled fire to burn unnoticed with foreseeable catastrophic consequences before it could be discovered by the defendants who were sleeping in a remote location with doors shut; fl. failing to take other reasonable precautions after the discovery of the first, "'wO....oI small fire which the defendants knew or should have known would foreseeably Mali< J. Wollman AllY 1.0, No. 57127 W::.p~efli~ cause the rekindling of fire and ensuing Major Fire; 261 Old Vorl< Road t~r~J~~'~~ 19046 all of which foreseeably, proximately and directly caused the ignition and spread of the Major - 3 - LAw Offlcelof Mark J. Wollman Alt)Il.D. No, 57127 SUIte 700.34 The Pavilion 261 Old Yorl< Road Jenkintown. PA 19046 (215) 887-3505 Fire which substantially destroyed the Premises. 14. The damages sustained by the Insureds arising out of the Fire total at least $102,738.04. The Facility paid its Insureds the Policy amount of $102,738.04 in partial indemnity for the actual cash value damages sustained by the Insureds due to the Fire. WHEREFORE, the Insurance Placement Facility of Pennsylvania as subrogee of Carl D. Pedersen request jUdgment jOintly and severally against the Defendants in the amount of $102,738.04 plus interest and costs. COUNT II BREACH OF CONTRACT Insurance Placement Facility of Pennsylvania as subrogee of Dr. Carl D. Pedersen v. James E. Spicer and Steven M. Houck 15. The foregoing paragraphs No.1 through 14 are incorporated herein by reference. 16. The defendants breached their Leases (attached as Exhibit B and Exhibit C hereto) with the plaintiff's insured, Carl Petersen, by causing the Premises to burn, causing damage. 1 7. The fOllowing acts of negligence and carelessness constitute breaches of the Leases of (See '6 ("Repeated Damage"); '8 ("Due car/Appliances")): a). failing to reasonably, competently, prudently and/or fully extinguish the first fire; b). failing to report the first fire to the fire department; c). failing to inspect the mattress for internal burning or heat build-up or deep- seated fire within the mattress after the first, small fire; d). failing to properly remove the subject mattress from the house after the first fire so as to prevent the foreseeable outbreak of a second catastrophic fire in e). the foreseeable event of re-kindling; Removing the batteries for and/or otherwise disabling the smoke/heat detectors and/or certain smoke/heat detector(s) in the Premises which would -4. " cause a re,kindled fire to burn unnoticed with foreseeable catastrophic consequences before it could be discovered by the defendants who were sleeping in a remote location with doors shut; fl. failing to take other reasonable precautions after the discovery of the first, small fire which the defendants knew or should have known would foreseeably cause the rekindling of fire and ensuing Major Fire; all of which foreseeably, proximately and directly caused the ignition and spread of the Major Fire which substantially destroyed the Premises. 18. The defendants' above acts constitute breach{esl of the express and/or implied provisions of the lease between the defendants and Petersen which directly caused damages of at least $102,738.04 to the premises. 19. Despite demand, the defendants have failed to pay this sum and are legally liable for said payment. WHEREFORE, the Insurance Placement Facility of Pennsylvania as subrogee of Carl D. Pedersen request judgment jointly and severally against the Defendants in the amount of $102,738.04 plus interest and costs. ,/ /' ,z" ~-,', , / """,; '" .. . /~ . -t/~.,,- /' / ,.,~,/ ,." 1/_.',," __"'-. Mark J. Wollman, Esq. Attorney for Plaintiff /,,,, - 5 - Verification I, Mark Wollman, authorized representative of the plaintiff here hereby state the statements made herein are true and correct to the best of my knowledge, information and belief. I am aware that this is made under the penalties of 18 PA C.S.A. section 4904 relating to unsworn falsification to ,"h,,;';" :::1~ Mark Wol man ,:;. ',. " :i:, I ;;' Date: April 21,1999 @ O'''':>l. ""'ll ~'\.O'I"'''''' 'l'\)ll.tJ~'W'''. "T '._" .~. .'..... " ","M\lO~I:;. "X:"~.:.i:~f.ff~~ I~i: .., ......lmM:t: ),~I , " "...,..~:. ~,.f,\ ~W. ". . ~fl.*:::~ ~'f ~ '.' ..~;{..~.~l .!.~.. . " .. ..,." BERS OF . ,.._..""vl: PLACEMENT FACILITY OF PENNSYLVANIA ~,.,,'-'-- ..,," A LIST OF THE COMPANIES AND THEIR PERCENTAGE PARTICIPATION IS ON FILE AT THE INSURANCE DEPARTMENT IN HARRISBURG AND A COpy MAY BE OBTAINED AT THE FACILITY OFFICE, DECLARA TlONS r J:':'.. NAMED INSURED MAILING ADDRESS :'I',lil":.,;',/;r;r': I r :,'::..,....:, " ':'\.""'.":.1' '::rV,~:.. :.' ;'I'~:Dr;f\~::::I': ~:~8 :'~ i.'I,~IN ~'j,l "t': :.. ..,.. .. ".i I ~,If-.rt' r; ,'/. J"l'~, ','': .~, L- . ...- . ..,.... to ,;,. .~ ~ ',:';;~ :i....; L~..: ,.1 :.~. :.". :.:.:H:._ i,'f; .-.....1 .,.. ~ POLlCY NO. PFP ~ L" :..~ 1':: lac. ...t.'::"-G :.): "~'f :_, : :. '. '.. ~:..\..,,!".. l~~'.'! :'.~ f,' ;' RENEWAL TERM 1 YEAR ~'f'. 1'7,:':~-'" O:~,.l~/\..I;:.l EXPIRATION IMo OJ, VII NOON STANDAAD TIME :'n ~:L: .,: .,' . RENEWAl. DATE lUG. D., VI.) NOON STANDARD TIME :'.il ~ :< :,. !~. ;'. ";',:., ~.: ..:t( ,~' We will provide insurance described in Ihis policy in relurn for Ihe premium and compliance with all applicable proviSions Dllhis policy. If we olfer 10 renew this policy, the premium must be paid in advance of lhe above expiration dale or else Ihis policy will erpire. Upon rcceipl of Ihe renewal premium and a properly completed renewal application, . 'we will issuo il renewal endorsement or new policy. This insurance applies 10 the dascribed localion, coverage lor which a limit olliabilily is shown and perils insured againsllot which a premium is slaled. AMOUNT OF INSURANCE PREMIUM DUE RAT AT INCEPTION S .161 I 2\~.J. ;)'.: S H.)oi S j :~O :i'::l TOTALIS) I 3:il. ~).~~ COVEREO CAUSES OF LOSS o fiRE. LIGHTNING. AND EXPLOSION O,."I~~I" ". . WINO. HAIl. SI.40I(E. AIRCRAFT OR o vtHICL!:S. RIOT OR CIVIL COI.CMOT~. SINKHOLE COI.LAPSE. VOLCANIC ACTION. o s 1 '.,)1, "~" r ... ~M oJ: '.' \..' ~I Llt.UTOF INSURANCE DESCRIPTION OF PROPERTY COvERED (lOCAnON IS OESCRIBEO iF DIFFERENT FRO'" lWUNG AODRESSI APPLIES ONLY fOR WHICH A LIMIT OF INSURANCE IS SHO\'IN. SHOW OCCUPANCY OF BUILDING COVERED OR CONTAINING THE PROPERTY COVERED. L21>.;~~g~1 i.,;:IO t1nr\:~~. i.i\)';.i.::'.!!,,~,~., ':F..:C\.ir-~IEr.\ i~:~ F"~U~:":7..: ~":j Wi;;: !.J: 'I'Lr."~T t: i:. t:(.. 2. 1 ... '::JI'-i ,"'..:.:' ~.' ~';ri.;. '''"~: ~':'.::i~.~'.;f-: :;. f.':' ,.,."" OEoucnBLEI ~,c',:., ...... IN CASE OF LOSS UNDER THIS POLICY. WE COVER ONLY THAT PART OF THE LOSS OVER'"THE OEDUCTIBLE STATEO. FORMS APPLICABLE: "., ~'. I': '.;1.' (,':> ',.:S' .... " " ':'.',\.':;/': ~ ~::,. '":.' ":. -", ,l. () :1 .. ..; :~. ;.:/r:':l ,. :. ~ . ~ .' r::' ~ PROOUCEr r ."~~"~ ~~.;~. r ':' :..i ~ F'; u:i C ,': ! .i I (1 r: r:~,,'! .~, "7'.' ~ EXHIBIT :J JL ..J a " i OATE -.uTttORll(O RL -'," .... 'p.-'" .,,' ;:'';'' . . .' cr .',I.II.'~ .:.a~ Jr... J .,~ ,..; -, ..J , j ,;i .\*\1Ii,I",".:ti"e. . . ~""'''"" . Exhibit B '. ~~: ,~ ". """."."-'" '. . RESIDENTIAL LEASE AGREEMENT THIS LEASE, made this 1st day of December, 1996 BETWEEN Owner, }",,,,,, [; Stc~J one or more, referred to "ReSident"), jointly and severally: Dr. Carl Pedersen the (hereinafter whether WITNESSETIi: That Owner hereby leases to Resident and the letter lets from the fonner, the apartment/house designated as 11 Britton Road. Shiopensburlz. PA 17257 hereater called the "premises", for the term of 1 vear beginning on the -ill. day of June, 1997, and ending on the 31st day of MaV,1998,attherentof4".t~'''l...I~I-.''.\'..,.\'d..,1 Dollars($ ) annually and monthly in installments of: t",.\.f "l" do,l"'l Prior to the first day of the month for which it is due at a discounted rate of Between the first and the fifth day of the month due at the face value of After the fifth day of the month for which it is due at the penalty rate of $19CI.oO $~03.70 $ 2l/3. (/0 This letting is upon the fOllowing tenns and conditions: I, SECURITY DEPOSIT: Resident agrees to pay Owner a security deposit of DtU j",",\ /..1.1 In; n'~~ t~w. CDollars ($ ) upon signing of this agreement with receipt herein acknowl dged paid by . Resident agrees to pay the security deposit set forth above prior to occupancy of the premises, The security deposit shall be held by Owner or Agent as security for the Rayment of all rent and other amounts due from Resident to Owner or Agent, for the Resident's p'erfonnance of this lease and against any damages caused to the premises or any other part of Owner's or Agent's property by Resident, his family and guests, Resident understands and alirees that the securitv deposit mav not be aDDlied as rent or allainst an: ~t:r amount due from Resident to Owner or Agent without Owner's or Allent's written conse t d tha the m nthl twill e aid each month incJudin the last m nth of the lase t rm wit u abatement for earlv vacancv bv Resident. Within thirty(30) days following termination oflhis lease and the physical vacating of the premises by the resident, the Owner or Agent shall return the security deposit, less any deductions from it on account of amounts owed by Resident to Owner or Agent, to Resident by check payable to all persons signing this lease mailed to a forwarding address which must be fumished by Resident in Writing. Upon terminating oflease and vacating of the premises within the terms and conditions set forth in the lease, Resident shall return all keys and all copies of keys to Owner or Agent's office within 24 hours of such v. Ifkeys are not returned with the specified time period, Owner or Agent will have the righ change the locks on the premises and charge such lock change to resident. M EXHIBIT J -1L - - S ,J.t:. 2. FAll..URE TO PA Y:Resident agrees to pay to Owner or Agent the monthly rate set forth above on the 30th day of each month, in advance, at the Rental Office of Owner or Agent or such other place as Owner or Agent may from time to time request and further agrees to pay the first and last months rent at the time of occupancy. If the rental payment is not received by the 15th of each month (as set forth above), Owner or Agent will reserve the right to proceed with the necessary legal authorities to coUect same. 2a. CHARGES FOR RETURNED CHECKS: I. Residents check is returned by the bank for any reason (including, but no limited to, insufficient funds, errors on the check, and a stop-payment order), resident must pay a service charge of$25.00 in addition to other charges set forth. II, Resident shall replace the returned check with a money order, certified check, or cashier's check, payable to the Owner. Owner is not required to redeposit a returned check. III. The returned check charge and late fees are immediately due and payable as additional rent under the tenns ofthe lease and are considered liquidated damages for Owner's bookkeeping and clerical expenses. IV. If Resident's rent check is returned, Owner reserves the right to require Resident to pay future rent by money order, certified check or cashier's check. V. Owner reserves the right to collect all additional penalities provided by law for checks not honored by the bank. 3. TERMINATION: pwner or Agent may tenninate this lease without cause by giving thirty (30) days prior written notice to Resident, but.!!Q tennination by Owner or Agent without cause may take effect during the one (I) year tenn of the lease, 4.SUBLETIINGWSE:Resident agrees to use the premises only as the personal residence of Resident and their children, and not to assign this lease or sublet the apartment. Resident agrees not to alter or maJsc additions to the premises, its painting, its fixtures, and chanlle locks without Owner's or Agent's written consent Resident agrees not to do or to pennit any act or practice injurious to the building, which may affect the insurance on the building, or which is contrary to any law, 5, DRAINAGE: Resident shall not allow any hair, thread, strings, rags, sanitary napkins, or rubbish of any kind to enter the drainage or waste pipes of the premises. Any damage caused by the entry of one or more of such items into the drainage or waste pipes of the premises shall be the Resident's responsibility. 6. REPEATED DAMAGE: Serious or repeated damage to the premises, any common areas or any property of the Owner or Agent, is a violation of this lease agreement. 7. UTILITIES: Resident understands that the equipment for utilities to serve the premises is installed therein and Resident agrees that the cost of the utilities shall be paid as follows: Heating for premises to be paid by Heating of water for premises to be paid by Electricity for premises to be paid by Gas for premises(1F APPLICABLE) to be paid by Sewer charge to be paid by Water consumption to be paid by Trash removal to be paid by Cable Television to be paid by Telephone to be paid by Snow removal to be paid by(sidewalk) Lawn maintenace to be paid by Resident Resident Resident Resident R~sident Resident Resident Resident Resident Resident Owner - Resident agrees to pay the bills for said utilities when due. Owner shall have no obligation to provide utilities that are the responsibility of the Resident. In the premises where the Resident provides the heat, the premises must be kept sufficiently heated at all times during the lease to avoid damage to the premises. In the premises where the Resident provides the heat, the Resident may not have the heat terminated for any reason during the lease, Resident agrees that Owner or Agent shall have the right temporarily to stop the service of electricity, or water, or gas in the event of accident affecting the same or to facilitate repairs or alterations made in the premises or elsewhere in Owner's or Agent's property, Owner or Agent shall have no liability for failure to supply heat, air conditioning, hot water or other services or utilities when such failure shall be beyond Owner's or Agent's control or to enable Owner or Agent to service or repair . installations. 8. DUE CAREl APPLIANCES: Resident agrees to use due care in the use of the premises, the appliances therein, and all other parts or Owner's or Agent's property, to give notice to Owner or Agent of the need for repa,ir thereof, and to pav for all reoairs to the aeartmen!. its contents ~ to all ~th~ ~lII1i.l2f Owner's or Allent'S' eroeertv which are necessitated bv anv act or lack of care on the e ofRe ide t members of Resident's familv. or his visitors. Owner or Agent will make necessary repairs to the premises and the appliances'therein within a reasonable time after Resident notifies Owner or Agent of the need for repairs, The following appliances are the property of the Owner and shall not be tampered with or removed from the premises. Any cost of repair or replacement for violation of the conditions of this lease clause shall be the responsibility of the Resident. RANGE: serial number REFRIGERATOR: serial number OTHER APPLIANCES: 9. LIABILITY FOR INJURY:Resident agrees that Owner or Agent shall not be liable for property damage or personal injury occuning in the premises or elsewhere on Owner's or Agent's property unless the damage or injury results directly from Owner's or Agent's negligence. ' , " 10, RENTERS INSURANCE: All residents are required to carry "renters insurance" for the premises with an amount equal or greater to the value of all personal belongings of the resident. Name L 2. 3, 4. 5. 6, 7. 8, Insurer amount I L OCCUPANCY:' If, due to circumstances beyond the Owner's or Agent's control, the premises shall not be ready for occupancy at the beginning of the term, this lease shall nevertheless remain in effect and the rent shall be abated proportionately until the premises are so ready, and Owner or Agent shall not be liable for delay; provided, that if the premises shall not be for occupancy sixty (60) days after said beginning, Resident shall have the right to cancel this lease by written notice delivered to Owner or Agent at any time after the expiration of said sixty (60) days, but not after the premises are ready for occupancy. Resident's remedy shall be limited to such right of cancellation, neither party shall have any further right against the other, save the Owner or Agent shall repay any deposits made by Resident. If Resident shall occupy the premises prior to the beginning of the tenn, such occupancy shall be subject to the tenns of this lease, and Resident shall pay prior to occupying the premises rent for the same period from the date of such occupancy to the beginning of said term. 12, DAMAGE BY FIRE OR OTHER CASUALTY: If the premises is damaged by fire or other pasualty, Owner or Agent shall rFpair it within a reasonable time and rent shall continue unless the casualty renders the premises untenantable, in which case this lease shall terminate and Resident, upon payment of all rent to the date the premises is surrendered, shall not be liable for any further rent, If only a portion of the premises is rendered untenantable, the Resident may, with mutual agreement of Owner or Agent, alternatively choose to continue in poss~ssion and shall thereupon be entitled to a pro-rata reduction in the amount of rent, provided that election to proceed under this alternative shall not be a waiver of the Resident's right to terminate the lease,if repairs are not made within a reasonable time, 13, RIGHT OF ENTRY: Owner or Agent, or any person authorized by him, shall have the right to enter the premises at reasonable times to inspect, make repairs or alterations as needed, to enforce this lease, and to show the premises to prospective residents, Reasonable times shall be defined as any time when the Owner or Agent has given the Resident at least a 24 hour notice by telephone or in writing, however; such notice shall not be required in the case of emergency or upon the Resident's request for maintenance work to be completed. 14, PREMISES DESCRlBEDfPROPERTY USE:This lease confers no rights on Resident to use for any purpose any of the property of Owner or Allent other than the interior of the apartment hereby leased, except the walks and roadways giving access thereto and such other areas, ifany, as Owner or Agent may from time to time designate for the use of residents, When the use by Resident of any other portion of Owner's or Agent's property is pennitted, it shall be subject to the rules and regulations established by Owner or Agent. 15. FAILURE TO PAY RENTIDEFAULT: If Resident shall fail to pay rent, or any other sum, to Owner or Agent when due; shall default in any other provisions of this lease; or shall remove or attempt to remove his possessions from the premises before paying to Owner or Agent all rent due to the end of the lease tenn, Owner or Agent, in addition to all other remedies by law, may: (a) discontinue utility service provided by owner; (b) terminate this lease; (c) bring an action or recover possession of the premises; (d) bring an action to recover the whole balance of the rent and other charges due herein under, of whatever kind and nature, together with any and all consequential damages caused by Resident's default, including reasonable attorney's fees and/or fees charged by Owner or Agent and any court costs and subsequent fees for the procurement of a State Constable and/or County Sheriff. 16. PETS: No Pets Allowed, Even Temporarily. No pets are allowed, even temporarily, anywhere in the apartment, or apartment community. Residents must advise guests ofthis policy so they can make other arrangements prior to their visit. If a pet has been in a Resident's apartment, even temporarily(with or without our consent), Resident may be charged for de-fleaing, deodorizing, and/or shampooing. 17. POSSESSION: Resident agrees that all security deposits as well as the right to take possession of the premises may be forfeited at the discretion of the owner if the resident does not take possession of the leased premises within seven (7) days of the beginning of the lease term. Prior arrangements may be, made with the Owner in writipg prior to the first day of the lease to schedule a later possession date, however, rent is still due from the beginning of the lease term. 18, WAIVER OF NOTICE TO QUIT: Resident hereby waives the usual notice to quit and agrees to surrender the premi~es at the expiration of said lease tenn, or the terminations ofthis lease for whatever reasons, forfeiture 'Or otherwise without notice from the Owner or Agent whatsoever. If proceedings shall be commenced by Ihe Owner or Agent to recover possession of the premises, either at the expiration of the tenn or earlier termination of the lease, or for non-payment or rent, or for any other reasons, Resident specifically waives the right to 30 days notice and to any other notice required under the Landlord and Tenant Act and agrees that not notice whatsoever shall be required. 19. OCCUPANCY REGULATIONS HEREIN AND ATTACHED: RESIDENT AGREES THAT HE Wil.L COMPLY AND PROCURE COMPLIANCE OF MEMBERS OF InS FAMILY, AND HIS GUESTS WITH THE OCCUPANCY REGULATIONS WHICH ARE PRINTED HEREON AND WHICH ARE ATTACHED. 20. LIEN SUBORDINATION: This lease is subject and subordinate to the lien of all mortgages now or at any time hereinafter placed upon any part of Owner's or Agent's property which includes the apartment, to extensions or renewals thereof, and to all advances now or hereafter made on the security thereof Resident agrees, upon request, to execute such further instruments evidencing such subordination as Owner or Agent may request, and if Resident fails to do so, Owner or Agent is empowered to do so in the name of Resident. 21. MUNICIPAL INSPECTIONS AND INSPECTION FEES: If the local municipality requires annual or periodic inspections of your apartment in non-emergency situations, you have the right to: (I) prior notice, including notice of the purpose and the subject of the inspection; and (2) proper idenification from the inspector; and (3) to be present during the inspection. You also ave the right to deny the municipal inspector access into your private residence unless a search warrant or similar legal process is issued by a judge. Should you agree to permit the municipal inspection of your apartment, you will be required to: (1) make arrangements directly with the municipality. The landlord will not open your door ro permit the municipal inspection. And, (2) reimburse the Landlord for the inspection fee with the next monthly rent payment. The charge for the inspection fee is to be considered additional minimum rent. You can avoid additional rent costs by choosing not to pennit the municpal inspection. However, the Landlord will be responsible for the inspection fee(and will not charge you) should the municipality require the inspection under the authority of a search warrant or similar lawful process which is issued by a judge (not the municipality). To avoid the rent charge in the amount of the inspection fee, you must provide the Landlord with a copy of the search warrant or other legal process. This provision does not change the inspection rights of the Landlord under paragraph 13, THIS AGREEMENT IS A LEGALLY BINDING CONTRACT: IF YOU DO NOT UNDER~TAND THIS AGREEMENT~ PLEASE CONSULT AN A TTORNEY-A T-LA W!! 22, RESIDENT/JOINT AND SEVERAL LEASE AGREEMENT:The tenn "Resident" used herein shall refer collectively to all persons named above, and signing t::is lease as Resident, and the liability or each such person shall b~ joint and several. Also signing on this lease shall be the parents or legal guardians of resident who by sigrung hereafter shall be liable, jointly and severally, for the entire lease herein, Notice given by Owner o~' Agent to any person named as Resident or by any such person to Owner or Agent, shall bind all persons signing this lease as Resident. The term "Resident" shall also refer to any persons named as heirs, executors, administrators, successors, or the respective panies hereto as if they were in every case named and expressed, 23, GENERAL: No oral promises, representations or agreements have been made by the owner or any owner's representative, This lease is the entire agreement between the parties. Owner's representatives ( including management personnel and other employees or agents ) do not have authority to make promises, representations or agreements which impose duties of security or other obligations on owners reresentatives unless done in writing. (~ '.' ,.'."."..,--. . RESIDENTIAL LEASE AGREEMENT TInS LEASE, made this 1st day of December, 1996 BETWEEN Owner, ~''''^ \<1 +\r.V'1i one or more, referred to a "Resident"), jointly and severally: Dr. Carl Pedersen the (hereinafter whether WITNESSETH: That Owner hereby leases to Resident and the letter lets from the fonner, the apartment/house designated as 11 Britton Road. Shiooensburll. PA 17257 hereater called the "premises", for the term of 1 Year beginning on the..ill day of June, 1997, and ending on the lill day of May, 192.[." at the rent of1".. -+Iw,o:,,.,\ .w,,,,,, ~".\,M l"""~~ifmollars($ ,~] t', ) annually and monthly in installments of: Prior to the first day of the month for which it is due at a discounted rate of Between the first and the fifth day of the month due at the face value of After the fifth day of the month for which it is due at the penalty rate of $ lq4- $ 20'3.70 $ ZI'5.'iO This letting is upon the following terms and conditions: 1. SECURITY, DEPOSIT: Resident agrees to pay Owner a security deposit of tJ..e. t.MJ~ llMef::t.-{;."r Dollars ($ ,Q4 ) upon signing of this agreement with receipt herein acknowledged paid by~...l)ova:.: Resident agrees to pay the security deposit set forth above prior to occupancy of the premises. The security deposit shall be held by Owner or Agent as security for the p,ayment of all rent and other amounts due from Resident to Owner or Agent, for the Resident's perfonnance of this lease and against any damages caused to the premises or any other part of Owner's or Agent's property by Resident, his family and guests. Residenl understands and asirees that the security deposit mav not be aoolied as rent or allMnst anv other amollnt due from Resident to Owner or Allent without Owner's or Allent's written consent. and that the monthlv rent will be paid each month. incIudinll the last month of the le~~ t~!ID ~t!!!1!!t abatement for earlv vacaneY by Resident. Within thirty(30) days following termination oflhis lease and the physical vacating of the premises by the resident, the Owner or Agent shall return the security deposit, less any deductions from it on account of amounts owed by Resident to Owner or Agent, to Resident by check payable to all persons signing this lease mailed to a fOlWarding address which must be furnished by Resident in Writing. Upon terminating of lease and vacating of the premises within the tenns and conditions set forth in the lease, Resident shall return all keys and all copies of keys to Owner or Agent's office within 24 hours of such v . Ifkeys are not returned with the specified time period, Owner or Agent will have the righ 3 EXHIBIT change the locks on the premises and charge such lock change to resident. ~ i C-- 2. FAILURE TO PAY:Resident agrees to pay to Owner or Agent the monthly rate set forth above on the 30th day of each month, in advance, at the Rental Office of Owner or Agent or such other place as Owner or Agent may from time to time request and further agrees to pay the first and last months rent at the time of occupancy, If the rental payment is not received by the 15th of each month (as set forth above), Owner or Agent will reserve the right to proceed with the necessary legal authorities to collect same. 2a. CHARGES FOR RETURNED CHECKS: I. Residents check is returned by the bank for any reason (including, but no limited to, insufficient funds, errors on the check, and a stop-payment order), resident must pay a service charge of$25.00 in addition to other charges set forth, II. Resident shall replace the returned check with a money order, certified check, or cashier's check, payable to the Owner. Owner is not required to redeposit a returned check. III. The returned check charge and late fees are immediately due.and payable as additional rent under the terms of the lease and are considered liquidated damages for Owner's bookkeeping and clerical expenses. IV. If Resident's rent check is returned, Owner reserves the right to require Resident to pay future rent by money order, certified check or cashier's check. V, Owner reserves the right to collect all additional penalities provided by law for checks not honored by the bank, 3. TERMINATION: pwner or Agent may terminate this lease without cause by giving thirty (3(l~ days prior written notice to Resident, but!!2 termination by Owner or Agent without cause may take effect during the one (1) year term of the lease. 4.SUBLElTINGf,VSE:Resident agrees to use the premises only as the personal residence of Resident and their thildren, and not to assign this lease or sublet the apartment. Resident agrees not to alter or m~e additions to the premises, its painting, its fbctures, and chamze locks without Owner's or Agent's written consent. Resident agrees not to do or to permit any act or practice injurious to the building, which may affect the insurance on the building, or which is contrary to any law, 5. DRAINAGE: Resident shall not allow any hair, thread, strings, rags, sanitary napkins, or rubbish of any kind to enter the drainage or waste pipes of the premises, Any damage caused by the entry of one or more of such items into the drainage or waste pipes of the premises shall be the Resident's responsibility, 6, REPEATED DAMAGE: Serious or repeated damage to the premises, any common areas or any property of the Owner or Agent, is a violation of this lease agreement. 7. UTILITIES: Resident understands that the equipment for utilities to serve the premises is installed therein and Resident agrees that the cost of the utilities shall be paid as follows: Heating for premises to be paid by Heating of water for premises to be paid by Electricity for premises to be paid by Gas for premises(IF APPLICABLE) to be paid by Sewer charge to be paid by Water consumption to be paid by Trash removal to be paid by Cable Television to be paid by Telephone to be paid by Snow removal to be paid by(sidewalk) Lawn maintenace to be paid by Resident Resident Resident Resident Resident Resident Resident Resident Resident Resident Owner - Resident agrees to pay the bills for said utilities when due, Owner shall have no obligation to provide utilities that are the responsibility of the Resident. In the premises where the Resident provides the heat, the premises must be kept sufficiently heated at all times during the lease to avoid damage to the premises. In the premises where the Resident provides the heat, the Resident may not have the heat tenninated for any reason during the lease, Resident agrees that Owner or Agent shall have the right temporarily to stop the service of electricity, or water, or gas in the event of accident affecting the same or to facilitate repairs or alterations made in the premises or elsewhere in Owner's or Agent's property, Owner or Agent shaIl have no liability for failure to supply heat, air conditioning, hot water or other services or utilities when such failure shall be beyond Owner's or Agent's control or to enable Owner or Agent to service or repair . installations. , 8, DUE CAREl APPLIANCES: Resident agrees to use due care in the use of the premises, the applian'.:es therein, and all other parts or Owner's or Agent's property, to give notice to Owner or Agent of the need for repa,ir thereof, and to oav for all reoairs to the aoartment. its contents ~ to all ~t: Darts of Owner's or Allent'; orooertv which are necessitated bv anv act or lack of care on the D ofR id t. members ofResidlfnt's familv. or his visitors. Owner or Agent will make necessary repairs to the premises and the appliances therein within a reasonable time after Resident notifies Owner or Agent of the need for repairs, The following appliances are the property of the Owner and shaIl not be tampered with or removed from the premises. Any cost of repair or replacement for violation of the conditions oflhis lease clause shall be the responsibility of the Resident. RANGE: serial number REFRIGERATOR: serial number OTHER APPLIANCES; 9, LIABILITY FOR INJURY:Resident agrees that Owner or Agent shall not be liable for property damage or personal injury occurring in the premises or elsewhere on Owner's or Agent's property unless the damage or injury results directly from Owner's or Agent's negligence, . 10. RENTERS INSURANCE: All residents are required to carry "renters insurance" for the premises with an amount equal or greater to the value of all personal belongings of the resident. Name 1. 2. 3, 4, 5. 6. 7. 8. Insurer amount 11. OCCUPANCY:' If, due to circumstances beyond the Owner's or Agent's control, the premises shall not be ready for occupancy at the beginning of the term, this lease shall nevertheless remain in effect and the rent shall be abated proportionately until the premises are so ready, and Owner or Agent shall not be liable for delay; provided, that if the premises shall not be for occupancy sixty (60) days after said beginning, Resident shall have the right to cancel this lease by written notice delivered to Owner or Agent at any time after the expiration of said sixty (60) days, but not after the premises are ready for occupancy. Resident's remedy shall be limited to such right of cancellation, neither party shall have any fhrther right against the other, save the Owner or Agent shall repay any deposits made by Resident. If Resident shall occupy the premises prior to the beginning of the term, such occupancy shall be subject to the terms of this lease, and Resident shall pay prior to occupying the premises rent for the same period from the date of such occupancy to the beginning of said term, 12. DAMAGE BY FIRE OR OTHER CASUALTY: If the premises is damaged by fire or other pasualty, Owner or Agent shall rFpair it within a reasonable time and rent shall continue unless the casualty renders the premises untenantable, in which case this lease shall tenninate and Resident, upon payment of all rent to the date the premises is surrendered, shall not be liable for any further rent. If only a portion of the premises is rendered untenantable, the Resident may, with mutual agreement of Owner or Agent, alternatively choose to continue in possession and shall thereupon be entitled to a pro-rata reduction in the amount of rent, provided that electt~n to proceed under this alternative shall not be a waiver of the Resident's right to tenninate the lease,'if repairs are not made within a reasonable time. 13. RIGHT OF ENTRY: Owner or Agent, or any person authorized by him, shall have the right to enter the premises at reasonable times to inspect, make repairs or alterations as needed, to enforce this lease, and to show the premises to prospcctive residents. Reasonable times shall be defined as any time when the Owner or Agent has given the Resident at least a 24 hour notice by telephone or in writing, however; such , notice shall not be required in the case of emergency or upon the Resident's request for maintenance work to be completed, 14. PREMISES DESCRlBEDfPROPERTY USE:This lease confers no rights on Resident to use for any purpose any of the property of Owner or Agent other than the interior of the apartment hereby leased, except the walks and roadways giving access thereto and such other areas, if any, as Owner or Agent may from time to time designate for the use of residents, When the use by Resident of any other portion of Owners or Agent's property is permitted, it shall be subject to the rules and regulations established by Owner or Agent. 15. FAll.URE TO PAY RENTffiEFAULT: If Resident shall fail to pay rent, or any other sum, to Owner or Agent when due; shall default in any other provisions of this lease; or shall remove or attempt to remove his possessions from the premises before paying to Owner or Agent all rent due to the end of the lease tenn, Owner or Agent, in addition to all other remedies by law, may: (a) discontinue utility service provided by owner; (b) terminate this lease; (c) bring an action or recover possession of the premises; (d) bring an action to recover the whole balance of the rent and other charges due herein under, of whatever kind and nature, together with any and all consequential damages caused by Resident's default, including reasonable attorney's fees and/or fees charged by Owner or Agent and any court costs and subsequent fees for the procurement of a State Constable and/or County Sheriff. 16, PETS: No Pets Allowed, Even Temporarily, No pets are allowed, even temporluily, anywhere in the apartment, or apartment community, Residents must advise guests of this policy so they can make other arrangements prior to their visit, If a pet has been in a Resident's apartment, even temporarily(with 01' without our consent), Resident may be charged for de-lleaing, deodorizing, and/or shampooing. 17. POSSESSION: Resident agrees that all security deposits as well as the right to take possession of the premises may be forfeited at the discretion of the owner if the resident does not take possession of the leased premises within seven (7) days of the beginning of the lease term. Prior arrangements may be made with the Owner in writipg prior to the first day of the lease to schedule a later possession date, howe'ver, rent is still due from the beginning of the lease tenn. 18. WAIVER OF NOTICE TO QUIT: Resident hereby waives the usual notice to quit and agrees to surrender the premi~es at the expiration of said lease tenn, or the terminations of this lease for whatever reasons, forfeiture or othelWise without notice from the Owner or Agent whatsoever, If proceedings shall be commenced by fhe Owner or Agent to recover possession of the premises, either at the expiration of the tenn or earlier termination of the lease, or for non-payment or rent, or for any other reasons, Resident specifically waives the right to 30 days notice and to any other notice required under the Landlord and Tenant Act and agrees that not notice whatsoever shall be required, 19. OCCUPANCY REGULATIONS HEREIN AND ATIACHED: RESIDENT AGREES THAT HE WD..L COMPLY AND PROCURE COMPLIANCE OF MEMHERS OF HIS FAMlL Y, AND IDS GUESTS WITH THE OCCUPANCY REGULATIONS WInCH ARE PRINTED HEREON AND WHICH ARE ATTACHED. 20. LIEN SUBORDlNA TION: This lease is subject and subordinate to the lien of all mortgages now or at any time hereinafter placed upon any part of Owners or Agent's propelt}' which includes the apartment, to extensions or renewals thereof, and to all advances now or hereafter made on the security s.H. .' thereof Resident agrees, upon request, to execute such funher instruments evidencing such subordination as Owner or Agent may request, and if Resident fails to do so, Owner or Agent is empowered to do so in the name of Resident. 21. MUNICIPAL INSPECTIONS AND INSPECTION FEES: If the local municipality requires annual or periodic inspections of your apartment in non-emergency situations, you have the right to: (I) prior notice, including notice of the purpose and the subject of the inspection; and (2) proper idenification from the inspector; and (3) to be present during the inspection. You also ave the right to deny the municipal inspector access into your private residence unless a search warrant or similar legal process is issued by a judge. Should you agree to permit the municipal inspection of your apartment, you will be required to: (I) make arrangements directly with the municipality, The landlord will not open your door ro permit the municipal inspection. And, (2) reimburse the Landlord for the inspection fee with the next monthly rent payment. The charge for the inspection fee is to be considered additional minimum rent. You can avoid additional rent costs by choosing not to permit the municpal inspection, However, the Landlord will be responsible for the inspection fee(and will not charge you) should the municipality require the inspection under the authority of a search warrant or similar lawful process which is issued by a judge (not the municipality). To avoid the rent charge in the amount of the inspection fee, you must provide the Landlord with a copy of the search warrant or other legal process, This provision does not change the inspection rights of the Landlord under paragraph 13, THIS AGREEMENT IS A LEGALLY BINDING CONTRACT: IF YOU DO NOT UNDE~TAND mls AGREEMENT, PLEASE CONSULT AN A'ITORNEY-AT-LAW!! 22, RESIDENT/JOINT AND SEVERAL LEASE AGREEMENT:The tenn "Resident" used herein shall refer collectively to all persons named above, and signing this lease as Resident, and the liability or each such person shall b~ joint and several, Also signing on this lease shall be the parents or legal guardians of resident who by siSmng hereafter shall be liable, jointly and severally, for the entire lease herein. Notice given by Owner o~'Agent to any person named as Resident or by any such person to Owner or Agent, shall bind all persons signing this lease as Resident. The term "Resident" shall also refer to any persons named as heirs, executors, administrators, successors, or the respective parties hereto as if they were in every, case named and expressed, 23. GENERAL: No oral promises, representations or agreements have been made by the owner or any owner's representative. This lease is the entire agreement between the panies, Owner's representatives ( including management personnel and other employees or agents ) do not have authority to make promises, representations or agreements which impose duties of security or other obligations on owner's reresentatives unless done in writing. S.H. .. ... ROLF E. KROLL. ESQUIRE PA AttornDV 1.0. No. 47243 BADOWSKI. BANKO. KROLL. KRONTHAL & BAKER A Profossional Corporation 101 Pine Stroot Poat Off/co Box 932 Harrisburg, Pennsylvania 17108.0932 17171 236,3200 Attornov for Dofendrmt. STEVEN M. HOUCK INSURANCE PLACEMENT FACILITY OF: PENNSYLVANIA, AS SUBROGEE OF CARL PEDERSEN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW v. STEVEN M. HOUCK, and JAMES E. SPICER, Defendants. NO. 99-2441 CIVIL JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Kindly enter my appearance on behalf of Defendant, STEVEN M. HOUCK, in the above-captioned matter. Respectfully submitted, Date:0//?j/7f KO, KROLL, KRONTHAL Corporati n , ESQUIRE I.D. #47243 for Defendant, HOUCK 101 Pine Street P. O. Box 932 Harrisburg, PA 17108-0932 (717) 236-3200 ~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ENTRY OF APPEARANCE ON BEHALF OF DEFENDANT, STEVEN M. HOUCK, on all interested parties by placing the same in the addressed as follows: Pennsylvania, first-class of ~~ ' 1999, and United states mail at Harrisburg, postage prepaid, on the~~day Mark J. Wollman, Esquire Fox Pavilion, Suite 700-34 261 Old York Road Jenkintown, PA 19046 Mr. James E. Spicer 116 North Fayette Street Shippensburg, PA 17257 & BAKER 3. Denied. Mr. Houck is without sufficient information to verify as to the accuracy or inaccuracy of the averment in the corresponding paragraph of Plaintiff's Complaint, and the same is accordingly denied. 4. Denied. Mr. Houck resides at 523 West Lisburn Road, Mechanicsburg, Pennsylvania 17055. 5. Denied as stated. It is admitted that a fire occurred. After reasonable investigation, Mr. Houck is without knowledge or information sufficient to form a belief as to the accuracy or inaccuracy of averments contained in paragraph 5 of Plaintiff's Complaint, and the same is accordingly denied. 6. Admitted. 7. Denied. Mr. Houck is without sufficient information to verify as to the accuracy or inaccuracy of the averment in the corresponding paragraph of Plaintiff's Complaint, and the same is accordingly denied. 8. Admitted in part and denied in part. It is admitted that a small fire had burned a portion of Defendant, James Spicer's ("Mr. Spicer") bed linens. Any statement or implication that there was any evidence that the fire was ongoing in any way, shape or form at the time Mr. Houck returned to his own room is specifically denied. Moreover, Mr. Houck denies any statement or implication that he played any part in the disabling of all smoke alarms. -2- NEW MATTER 20. Paragraphs 1-19 are incorporated herein by reference as though fully set forth in full. 21. Plaintiff has failed to state a claim upon which relief can be granted. 22. Plaintiff's claims are barred by the doctrines of contributory and comparative negligence. 23. Plaintiff's claims are barred by the doctrine of assumption of risk. 24. Mr. Houck was confronted with a sudden emergency not of his own creation to which he responded reasonably under the circumstances. 25. Plaintiff's claims are barred by the applicable statute of limitations. WHEREFORE, Defendant, steven M. Houck, demands judgment in his favor and against Plaintiff with costs accrued assessed to Plaintiff. NEW MATTER PURSUANT TO Pa.R.C.P. 2252(dl 26. Plaintiff's Complaint and Mr. Houck's answers thereto are incorporated by reference as though set forth in full. 27. In Plaintiff's Complaint, Plaintiff asserts a claim of negligence against Mr. Spicer and Mr. Houck, which claims are specifically denied with respect to Mr. Houck. -5- 28. In the event Mr. Houck and Mr. Spicer are determined to be jointly and severally liable, Mr. Houck hereby asserts that Mr. Spicer is alone liable to Plaintiff or is liable over to Mr. Houck or is jointly or severally liable to Plaintiff for the reasons set forth in Plaintiff's Con~laint. 29. These allegations are made exclusively for the purpose of protecting Mr. Houck's right to indemnification and contribution. WHEREFORE, Defendant, Steven M. Houck, demands judgment in his favor and against Plaintiff with costs accrued assessed to Plaintiff. Respectfully submitted, Date:J#lif By: ROLF E. PA Attor Attorneys STEVEN M. LL, ESQUIRE Y LD. #47243 for Defendant, HOUCK 101 Pine Street P. O. Box 932 Harrisburg, PA 17108-0932 (717) 236-3200 -6- VERIFICATION I, STEVEN M. HOUCK, have read the foregoing ANSWER WITH NEW MATTER which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be s~bject to criminal penalties. Date: &3 /Z"7 /qq , / ~.1fJ// ~ STE N M. HOUCK/ - >- In i= co:; c ~~ % ~ ::> u.!Q i:J~ C)"i7: .~ 6:;i: r~\..... r.z: q~ .'!-:r C;,' ' c:: r-. ~~~(/5 c...:.. I ,)% LQr.: '-":ifi E!.L: ~ :IJt I!Ja.. j'::- ~- .... "- C7\ ".:3 0 en b I . . In h ; ~: " " " , : , . . " . L.. " r,. "j , " I , " (~', , L I '.)\ ( - . Mark J. Wollman, Esq. Pa. 1.0. No. 57127 The Pavilion Suite 700-34 261 Old York Road Jenkintown, PA 191046 (215) 887.3505 Attorney for Plaintiff INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA as Subrogee of Carl Pedersen COURT OF COMMON PLEAS CUMBERLAND COUNTY V. No. 99-2441 Steven M. Houck -AND- James E. Spicer Civil Action PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT HOUCK The Plaintiff, by and through its undersigned counsel replies to the New Matter of Defendant Steve Houck as follows: 20. The paragraphs incorporated by reference in this paragraph do not require a response, however to the extent a response is required, said paragraphs are denied. 21. Denied as conclusion of law to which no response is re~~ired, lIiwOfflCeScA Mark J. Wollman Atty 1.0. No, 57127 SuIte 700-34 The Pavilion 261 Old YOl1< Road Jenklntown. PA 19046 (215) 887-3505 however to the extent a response is required, said paragraph is denied. 22. Denied as conclusion of law to which no response is required, however to the extent a response is required, said paragraph is denied 1 00 neither the plaintiff, nor the plaintiff's insured has any contributory or comparative negligence. 23. Denied as conclusion of law to which no response is required, however to the extent a response is required, said paragraph is denied, 4S neither the plaintiff nor the plaintiff's insured could possibly have aosumed the risk of the eruption of fire as recited in the Complaint. 24. Denied as conclusion of law to which no response is required, however to the extent a response is required, said paragraph is denied and any averred doctrine of sudden emergency has no application to this lawsuit. 25. Denied as conclusion of law to which no response is required, however to the extent a response is required, said paragraph is denied. WHEREFORE, the Insurance Placement Facility of Pennsylvania as subrogee of Carl D. Pedersen request judgment jointly and severally against the Defendants in the amount of $102,738.04 plus interest and costs. ,/"0:, ./ / ,. ,//....-: /''&-~7 (;/ / j!.1/"'~~ Mark J. Wollman, Esq. Attorney for Plaintiff LawOlflCftof Marl< J. Wollman AllY 1.0. No. 57127 Sulle 700-34 The Pavilion 261 Old Vorl< Road Jenklntown. PA 19046 \215) 667.3505 2 ROLF E. KROLL, ESQUIRE Pa. Suprame Court 1.0. No. 47243 BADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER P. O. Box 932 Harrisburg, Pennsylvania 17108-0932 Tolephone. [717] 975-8114 Fax, [717] 975-8124 Attorney for Defendant: STEVEN M. HOUCK INSURANCE PLACEMENT FACILITY PENNSYLVANIA, AS SUBROGEE OF CARL PEDERSEN, OF: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW v. NO. 99-2441 CIVIL STEVEN M. HOUCK, and JAMES E. SPICER, Defendants. JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, STEVEN M. HOUCK, TO PLAINTIFF'S AMENDED COMPLAINT AND NOW comes Defendant, Steven M. Houck ("Mr. Houck"), by and through his counsel, Badowski, Banko, Kroll, Kronthal & Baker, a Professional Corporation, to answer Plaintiff's Complaint, as follows: 1. Denied. Mr. Houck is without sufficient information to verify as to the accuracy or in~ccuracy of the averment in the corresponding paragraph of Plaintiff's Complaint, and the same is accordingly denied. 2. Denied. This allegation of Plaintiff's Complaint refers to a writing which speaks for itself and is the best evidence of all it contains and accordingly, no responsive pleading thereto is required. 3. Denied. Mr. Houck is without sufficient information to verify as to the accuracy or inaccuracy of the averment in the corresponding paragraph of Plaintiff's Complaint, and the same is accordingly denied. 4. Denied. Mr. Houck resides at 523 West Lisburn Road, Mechanicsburg, Pennsylvania 17055. 5. Denied as stated. It is admitted that a fire occurred. After reasonable investigation, Mr. Houck is without knowledge or information sufficient to form a belief as to the accuracy or inaccuracy of averments contained in paragraph 5 of Plaintiff's Complaint, and the same is accordingly denied. 6. Admitted. 7. Denied. Mr. Houck is without sufficient information to verify as to the accuracy or inaccuracy of the averment in the corresponding paragraph of Plaintiff's Complaint, and the same is accordingly denied. 8. Admitted in part and denied in part. It is admitted that a small fire had burned a portion of Defendant, James Spicer's ("Mr. Spicer") bed linens. Any statement or implication that there was any evidence that the fire was ongoing in any way, shape or form at the time Mr. Houck returned to his own room is specifically denied. Moreover, Mr. Houck denies any statement or implication that he played any part in the disabling of all smoke alarms. -2- NEW MATTF.R 20. Paragraphs 1-19 are incorporated herein by reference as though fully set forth in full. 21. Plaintiff has failed to state a claim upon which relief can be granted. 22. Plaintiff's claims are barred by the doctrines of contributory and comparative negligence. 23. Plaintiff's claims are barred by the doctrine of assumption of risk. 24. Mr. Houck was confronted with a sudden emergency not of his own creation to which he responded reasonably under the circumstances. 25. Plaintiff's claims are barred by the applicable statute of limitations. WHEREFORE, Defendant, Steven M. Houck, demands jUdgment in his favor and against Plaintiff with costs accrued assessed to Plaintiff. NEW MATTER PURSUANT TO Pa.R.C.p. 2252(dl 26. Plaintiff's Complaint and Mr. Houck's answers thereto are incorporated by reference as though set forth in full. 27. In Plaintiff's Complaint, Plaintiff asserts a claim of negligence against Mr. Spicer and Mr. Houck, which claims are specifically denied with respect to Mr. Houck. -5- 28. In the event Mr. Houck and Mr. Spicer are determined to be jointly and severally liable, Mr. Houck hereby asserts that Mr. Spicer is alone liable to Plaintiff or is liable over to Mr. Houck or is jointly or severally liable to Plaintiff for the reasons set forth in Plaintiff's Complaint. 29. These allegations are made exclusively for the purpose of protecting Mr. Houck's right to indemnification and contribution. WHEREFORE, Defendant, Steven M. Houck, demands jUdgment in his favor and against Plaintiff with costs accrued assessed to Plaintiff. Respectfully submitted, Date: /f//2;/Pf' ANKO, KROLL, & BAKER 1 Corporation L , ESQUIRE Y LD. #47243 for Defendant, HOUCK -6- 13!!5'{ VERIFICATION I, STEVEN M. HOUCK, have read the foregoing ANSWER WITH NEW MATTER which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: q )10/'11 / ' S VEN M. ;l} CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER WITH NEW MATTER OF DEFENDANT, STEVEN M. HOUCK, TO PLAINTIFF'S AMENDED COMPLAINT, on all interested parties by placing the same in the United States mail at Camp first-class postage prepaid, on the/.f?t1t day of , 1999, and addressed as follows: Mark J. Wollman, Esquire Fox Pavilion, Suite 700-34 261 Old York Road Jenkintown, PA 19046 Mr. James E. Spicer 116 North Fayette Street Shippensburg, PA 17257 BAD9H~p, BANKO, KROLL, KRONTHAL ~1>. r~,~Zal cor7~on . BY:~ _ _ eft '--?/l__ Jo' n E. Nelson, Secretary . .' & BAKER ,..- ~) ~ c( ~J {..- L_.. h.J~ . - \ ::J ,r. u ~.-; " --~ :-:~ ( l~.' . (;~ . , <"I " ';1 ) , ,. U ,- , ,- :.~ 0::- , ...J